or

ent tenements become the property of different persons. The only question with reference to such quasi easements in connection with the creation of an easement by express grant is whether certain general words can be construed as including quasi easements. Upon this question the decisions are to the effect that the fact that a grant of the quasi dominant tenement is expressed to be "with the appurtenances,” with certain rights "appertaining and belonging," or that similar general terms are used, does not operate to create an easement in the grantee equivalent to the pre-existing quasi easement.115 According to the English cases, however, a grant of land with the easements or rights "used and enjoyed therewith" will create in favor of the grantee an easement corresponding to a quasi easement previously existing in favor of the land conveyed.110

By the English law, an "exception" in a conveyance mere

115 Worthington v. Gimson, 2 El. & El. 618, 8 Gray's Cas. 491; Baring v. Abingdon [1892] 2 Ch. 374, 389; Bonelli v. Blakemore, 66 Miss. 136, 14 Am. St. Rep. 550; May v. Smith, 3 Mackey (D. C.) 55; Grant v. Chase, 17 Mass. 443, 9 Am. Dec. 161; Parsons v. Johnson, 68 N. Y. 62, 23 Am. Rep. 149; Spaulding v. Abbot, 55 N. H. 423; Swazey v. Brooks, 34 Vt. 451; Oliver v. Hook, 47 Md. 301.

116 Kay v. Oxley, L. R. 10 Q. B. 360, 3 Gray's Cas. 522; Watts v. Kelson, 6 Ch. App. 166, 3 Gray's Cas. 513; Barkshire v. Grubb, 18 Ch. Div. 616; Bayley v. Great Western Ry. Co., 26 Ch. Div. 434. So, where the owner of two adjoining tracts has used a right of way across one (the quasi servient tenement) for the benefit of the other (the quasi dominant tenement), while a conveyance of the latter tenement "with appurtenances" will not pass the right of way, the conveyance, if with the rights and easements "used and enjoyed therewith," will have that effect. Formerly it was held that this principle applied only in case the quasi easement had, at a former time, when the quasi dominant and servient tenements belonged to different persons, existed as an actual easement. Thomson v. Waterlow, L. R. 6 Eq. 36, 3 Gray's Cas. 509; Langley v. Ham. mond, L. R. 3 Exch. 168. This distinction is, however, no longer recognized.

ly withdraws from the operation of the conveyance a part of the thing granted, and a “reservation" merely provides for the rendition to the grantor of something, such as a rent or service, which is regarded as issuing from the thing granted.117 An easement in the land granted is regarded as neither a part of the land nor as issuing therefrom, and consequently, in that country, if, upon the conveyance of land, there is in terms a reservation or exception, in favor of the grantor, of an easement in the land, these words are construed as in effect a re-grant of the easement by the grantee of the land to the grantor.118 In this country, however, the view of the common law as to the restricted functions of an exception and a reservation is not usually adopted,119 and it is held that an easement in the land conveyed may be created by an exception or a reservation in favor of the grantor, without resort to the fiction of a re-grant by the grantee, and consequently the fact that the conveyance is executed by the grantor alone is immaterial.120 Moreover, the cases do not usually require the use of the word "heirs" in order that an easement in fee be so created in favor of the grantor, even though it is necessary in a conveyance of a fee in the land itself.121

117 See post, § 383.

118 Durham & S. Ry. Co. v. Walker, 2 Q. B. 940; Wickham v. Hawker, 7 Mees. & W. 63, 3 Gray's Cas. 478; Corporation of London v. Riggs, 13 Ch. Div. 798.

119 See post, § 383.

120 Bowen v. Conner. 6 Cush. (Mass.) 132, 3 Gray's Cas. 553; Kent v. Waite, 10 Pick. (Mass.) 138, 3 Gray's Cas. 538; Borst v. Empie, 1 Seld. (N. Y.) 33, 3 Gray's Cas. 557; Claflin v. Boston & A. R. Co., 157 Mass. 489; Inhabitants of Winthrop v. Fairbanks, 41 Me. 307, 3 Gray's Cas. 562; Kuecken v. Voltz, 110 II. 264; Tuttle v. Walker, 46 Me. 280; Haggerty v. Lee, 54 N. J. Law, 580, 50 N. J. Eq. 464; Kister v. Reeser, 98 Pa. St. 1, 42 Am. Rep. 608; Rose v. Bunn, 21 N. Y. 275; Richardson v. Clements, 89 Pa. St. 503, 33 Am. Rep. 784; Fischer v. Laack, 76 Wis. 313.

121 Winthrop v. Fairbanks, 41 Me. 307, 8 Gray's Cas. 562; Emer

317. Implied grant or reservation.

In many cases, although there is no grant of an easement in express terms, a grant or reservation of an easement is implied from circumstances. The question as to when an easement will thus be implied has been the subject of much discussion and adjudication, and the cases on the subject are by no means in harmony. In connection with this question, the existence of what has been before described under the name of “quasi easement" may be of paramount importance.

If the owner of land, part of which is subject to a quasi easement in favor of another, conveys the quasi dominant tenement, he thereby grants, by implication, an easement corresponding to such pre-existing quasi easement, provided the quasi easement is of an apparent, continuous, and, by some decisions, necessary, character. Thus it has been held that, where the owner of two pieces of land maintains on one of them a drain for the benefit of the other, a person to whom he sells the latter is entitled to an easement of maintaining the drain as it has before been maintained.12 so if one lays pipes for the supply of water from one part of his land to another part, a purchaser of the part so benefited may have a right to such water supply, which constitutes an easement.1 123

And

son v. Mooney, 50 N. H. 315, 3 Gray's Cas. 579; Smith v. Furbish, 68 N. H. 123; Chappell v. New York, N. H. & H. R. Co., 62 Conn. 195; Lathrop v. Elsner, 93 Mich. 599. See Haggerty v. Lee, 50 N. J. Eq. 464, 54 N. J. Law, 580. But in Massachusetts, if the words are construed as a reservation, rather than an exception, a life estate only in the easement is created in favor of the grantor, in the absence of words of inheritance. Curtis v. Gardner, 13 Metc. (Mass.) 457, 3 Gray's Cas. 548; Ashcroft v. Eastern R. Co., 126 Mass. 196, 3 Gray's Cas. 587; Claflin v. Boston & A. R. Co., 157 Mass. 489. See, as to the distinction taken in this state between an exception and a reservation, post, § 383.

122 Thayer v. Payne, 2 Cush. (Mass.) 327, 8 Gray's Cas. 549; Lampman v. Milks, 21 N. Y. 505, 3 Gray's Cas. 565.

123 Paine v. Chandler, 134 N. Y. 385.

(705)

So, in England and one or two states in this country, it is the rule that, if one grants land on which there is a building which is lighted by windows opening on land retained by the grantor, the grantee is entitled to an easement of light over such land, and the grantor cannot obstruct his light by building on his land.124 Generally, in this country, however, it has been held that no such easement of light will be implied in favor of the grantee, it being calculated to unduly burden land, and to interfere with its alienation and proper improvement;125 or that it will be implied only in case the light entering the grantee's building over the grantor's land is actually necessary to the use of such building.126

That an easement, to be thus created by implied grant, must be apparent, is conceded by all the decisions,127 and it is apparent, it is said, for this purpose, if its existence is indicated by signs which must necessarily be seen, or which may be seen or known on a careful inspection by a person

124 Swansborough v. Coventry, 9 Bing. 305; Greer v. Van Meter, 54 N. J. Eq. 270; Sutphen v. Therkelson, 38 N. J. Eq. 318; Janes v. Jenkins, 34 Md. 1, 6 Am. Rep. 300.

128 Keating v. Springer, 146 Ill. 481, 37 Am. St. Rep. 175; Mullen v. Stricker, 19 Ohio St. 135, 2 Am. Rep. 379, 3 Gray's Cas. 577; Keats v. Hugo, 115 Mass. 204, 15 Am. Rep. 80; Kennedy v. Burnap, 120 Cal. 488; Ray v. Sweeney, 14 Bush (Ky.) 1, 29 Am. Rep. 388. Com. pare Doyle v. Lord, 64 N. Y. 432, 21 Am. Rep. 629; Case v. Minot, 158 Mass. 577; Brande v. Grace, 154 Mass. 210.

126 Robinson v. Clapp, 65 Conn. 365; Turner v. Thompson, 58 Ga. 268, 24 Am. Rep. 497; Rennyson's Appeal, 94 Pa. St. 147, 39 Am. Rep. 777; Powell v. Sims, 5 W. Va. 1, 13 Am. Rep. 629. See Mor rison v. Marquardt, 24 Iowa, 35, 92 Am. Dec. 444; White v. Bradley, 66 Me. 254.

127 Butterworth v. Crawford, 46 N. Y. 349, 7 Am. Rep. 352, 3 Gray's Cas. 584; Lampman v. Milks, 21 N. Y. 505, 2 Gray's Cas. 565; Phillips v. Phillips, 48 Pa. St. 178, 86 Am. Dec. 577; Whiting ▼. Gaylord, 66 Conn. 337; Sanderlin v. Baxter, 76 Va. 299, 44 Am. Rep. 165; Providence Tool Co. v. Corliss Steam Engine Co., 9 R. I. 564; Fetters v. Humphreys, 18 N. J. Eq. 260, 19 N. J. Eq. 471.

ordinarily conversant with the subject.129

Accordingly, the question whether a drain or aqueduct which is under ground or covered by buildings is apparent for the purpose of the rule depends, it seems, on whether there is any object in sight on the land purchased, such as a pump or a sink, which would indicate the presence of the aqueduct or drain.129

An easement, to be thus created by implied grant on the conveyance of land, must also be "continuous."130 In some cases the view is taken that an easement is so continuous if no act of man is necessary to its continuous exercise ;181 while in others the question is said to be whether there is a permanent adaptation of the two tenements to the exercise of the easement.182 The easement of maintaining a drain or aqueduct is regarded as continuous, whichever of these meanings be given to the word "continuous,"133 while, on

128 Gale, Easements, 100; Pyer v. Carter, 1 Hurl. & N. 916, 3 Gray's Cas. 488. See Eliason v. Grove, 85 Md. 215; Curtiss v. Ayrault, 47 N. Y. 73, Finch's Cas. 126.

129 For cases in which a quasi easement involving the use of land for a drain or aqueduct was held to be apparent, see Pyer v. Carter, 1 Hurl. & N. 916, 3 Gray's Cas. 488; McPherson v. Acker, MacArthur & M. (D. C.) 150, 48 Am. Rep. 749; Toothe v. Bryce, 50 N. J. Eq. 589; Larsen v. Peterson, 53 N. J. Eq. 88. Compare Butterworth v. Crawford, 46 N. Y. 349, 7 Am. Rep. 352, 3 Gray's Cas. 584; Johnson V. Knapp, 150 Mass. 267.

180 Worthington v. Gimson, 2 El. & El. 618, 3 Gray's Cas. 491; Wheeldon v. Burrows, 12 Ch. Div. 31, 3 Gray's Cas. 529; Lampman v. Milks, 21 N. Y. 505, 3 Gray's Cas. 565; Sanderlin v. Baxter, 76 Va. 299, 44 Am. Rep. 165; Whiting v. Gaylord, 66 Conn. 337; Larsen v. Peterson, 53 N. J. Eq. 88; Gale, Easements, 121.

181 Bonelli v. Blakemore, 66 Miss. 136, 14 Am. St. Rep. 550; Provi. dence Tool Co. v. Corliss Steam Engine Co., 9 R. I. 564; Morgan v. Meuth, 60 Mich. 238.

132 Toothe v. Bryce, 50 N. J. Eq. 589; Larsen v. Peterson, 53 N. J. Eq. 88; John Hancock Mut. Life Ins. Co. v. Patterson, 103 Ind. 582, 53 Am. Rep. 550; Paine v. Chandler, 134 N. Y. 385; Spencer v. Kilmer, 151 N. Y. 390.

133 Larsen v. Peterson, 53 N. J. Eq. 88; Paine v. Chandler, 134 N. Y. 385.