easements to

the grantee.

easements over the other part of the tenement without which the enjoyment of the severed portion could not be had at all; and 2ndly. All those continuous and apparent easements over the other part of the tenement which are necessary to the reasonable enjoyment of the part granted, and have been and are at the time of the grant used by the owner of the entirety for the benefit of the part granted; but, as a general rule, there is no corresponding reservation in implication in favour of the grantor, except in such cases as ways of necessity, where the use of the part reserved could not be had at all without such implied reservation.1 A grantor, therefore, who wishes to reserve any easement over the part granted must use language to show that he intended to create the easement de novo.2

But no corresponding

favour of

grantor.

Ewart v.
Cochrane.

The proposition that where the dominant portion of the tenement is granted first, the grantee, as against the grantor and his successors, has by implied grant all those continuous and apparent easements over the other portion of the tenement necessary to the enjoyment of the part granted, has never been disputed, and is now finally declared to be the law by the House of Lords in the case of Ewart v. Cochrane.3 In this case the respondent claimed a right to send the refuse of his tan-yard through a drain into a cesspool in the appellant's garden. Both tenements had belonged to one owner, who had sold the tan-yard to the respondent's predecessor without alluding in the conveyance to the drain. He afterwards sold the garden to the appellant, who stopped the drain. In an action for the obstruction the House of Lords decided in favour of the respondent, on the following ground stated by Lord Campbell, L. C. :-"My lords, I consider the law

1 Wheeldon v. Burrows, 12 Ch. D. 31; Barnes v. Loach, 4 Q. B. D. 494; Watts v. Kelson, L. R., 6 Ch. 166; Polden v. Bastard, L. R., 1 Q. B. 156, 161; Crossley v. Lightowler, L. R., 2 Ch. 476; Suffield v. Brown, 12 W. R. 356; Pyer v. Carter, 1 H. & N. 916; Nicholas v.

Chamberlain, Cro. Jac. 121; Gale on Easements, p. 96.

2 Barlow v. Rhodes, 1 C. M. & R. 448, per Bayley, J.; Worthington v. Gimson, 29 L. J., Q. B. 116; 2 E. & E. 618; Pearson v. Spencer, 4 L. T., N. S. 769.

34 McQ. Scotch App. p. 117.

I

"of Scotland as well as the law of England to be, that
"when two properties are possessed by the same owner,
"and there has been a severance made of one part from
"the other, anything which was used and was necessary for
"the comfortable enjoyment of that part of the property
"which is granted shall be considered to follow from the
grant if there are the usual words in the conveyance.
"do not know whether the words are essentially necessary;
"but where there are the usual words, I cannot doubt
"that that is the law. In the case of Pyer v. Carter
"that is laid down as the law of England, which will
apply to any drain or any other easement which is
necessary for the enjoyment of the property. When I
say it was necessary, I do not mean that it was so
"essentially necessary that the property could have no
"value whatever without this easement, but I mean that
"it was necessary for the convenient and comfortable
enjoyment of the property as it existed before the time
"of the grant."1

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With regard to the second proposition, namely, that there is no implied reservation of such easements other than ways of necessity and the like in favour of the grantor, there has been some conflict of authority.

In Nicholas v. Chamberlain, it was held by the Court Nicholas v. Chamberlain. that if one erects a house and builds a conduit thereto in another part of his land, and conveys water by pipes to the house, and afterwards sells the house with the appurtenances, excepting the land, or sells the land to another, reserving to himself the house, the conduit and pipes pass with the house, because it is necessary and quasi appendant thereunto; and he shall have liberty by law to dig in the land for amending the pipes, or making them new, as the case requires. So it is if the lessee for years of a house and land erect a conduit upon the land, and after the term determines, the lessor occupies them together for a time, and afterwards sells the house with the appurte

Pyer v.
Carter.

nances to one, and the land to another, the vendee shall have the conduit and the pipes and liberty to amend them. But by Popham, if the lessee erects such a conduit, and afterwards the lessor, during the lease, sells the house to one, and the land wherein the conduit is, to another, after the lease determines, he who hath the land wherein the conduit is, may disturb the other in the using thereof, and may break it, because it was not erected by one who had a permanent estate or inheritance. So it is if a disseisor of a house and land erects such a conduit, and the disseisee re-enter, not taking conusance of any such erection, nor using it, but presently after his re-entry sells the house to one, and the land to another, he who hath the land is not compellable to suffer the other to enjoy the conduit; but in the principal case, by reason of the mispleading therein, there was not any judgment given.

In Sury v. Pigott,1 Doddridge, J., says, "A man having "a mill and a watercourse over his land, sells a portion of "the land over which the watercourse runs; in such a 66 case by necessity the watercourse remaineth to the vendor, and the vendee cannot stop it."

66

In the case of Pyer v. Carter,2 the defendant's house adjoined the plaintiff's, and the action was for stopping a drain running under both houses. The two houses had formerly been one, and were converted into two by a former owner, who conveyed one to the defendant and afterwards the other to plaintiff. At the time of the conveyance the drain existed running under plaintiff's house, and then under defendant's, and discharging itself into

1 Palmer, 444; Popham, 166; 3 Bulstrode, 339; Noy, 84; Latch, 153; W. Jones, 145. As to other cases of necessary easements, see Cox v. Mathews, 1 Ventr. 237; Palmer v. Fletcher, Lev. 122; Richards v. Rose, 9 Ex. 220; Murchie v. Black, 19 C. B., N. S. 190; Swansborough v. Coventry, 9 Bing. 305; Riviere v. Bower, Ry. & Moo. 24;

Compton v. Richards, 1 Price, 27; Glave v. Harding, 27 L. J., Ex. 392, per Bramwell, B.; Pearson v. Spencer, 1 B. & S. 571; 3 B. & S. 766, Ex. Ch.; Tyringham's case, 4 Rep. 38; Hertz v. Union Bank, 2 Giff. 286; White v. Bass, 7 H. & N. 722; Dodd v. Burchell, 1 H. & C. 113; Gale, pp. 96-131.

21 H. & N. 916; Gale, p. 101.

the common sewer; water from the eaves of defendant's house fell on plaintiff's, and then ran into the drain on plaintiff's premises, and thence through the defendant's premises into the common sewer. The plaintiff's house was drained through the same drain. It was proved that plaintiff might have made a drain direct from his house into the common sewer, and it was not proved that the defendant when he purchased knew of the position of the drain. It was laid down by the Court that where the owner of two or more adjoining houses conveys one to a purchaser, such purchaser will be entitled to the benefit of all drains from that house, and subject to all the drains then necessarily used for the enjoyment of the adjoining house, and that without any express reservation or grant, inasmuch as the purchaser takes the house as it is: and that the question as to what is "necessarily used” depends upon the state of things at the time of the conveyance, and as matters then stood without alteration; and upon the argument urged that this was not an apparent and continuous easement, the Court said, that although the defendant did not know of the existence of the drain at the time of the conveyance to him, yet as he must or ought to have known that there was some drainage for the waters he ought to have inquired, and that those things must be considered apparent which would be so upon a careful inspection by a person conversant with such matters.

Brown.

The doctrines laid down in Pyer v. Carter have been strongly dissented from in two cases in the Court of Chancery. The first, that of Suffield v. Brown,1 was a case of a Suffield v. dock and wharf owned by the same party, where the bowsprits of vessels in the dock had to project over the corner of the wharf in order to enter the dock if they were of any considerable size. The wharf was sold to one without any reservation of the right claimed, and the dock to another. The Master of the Rolls, Lord Romilly, held that the right to project the bowsprits was necessary to the enjoy

112 W. R. 356.

ment of the dock, and was, therefore, impliedly granted by the conveyance. On appeal, Lord Chancellor Westbury reversed this decision of the Master of the Rolls: "Where," he says, "the owner of two adjoining properties makes an "absolute grant of one of them without reservation, "neither he nor those claiming under him can derogate "from that grant by claiming over the property so "granted an easement in respect of the other property, "the user of which existed during the unity of owner"ship." In the course of his judgment he criticises Gale on Easements, ch. 4, and says, "If nothing more be in"tended by this passage than to state that, on the grant by the owner of an entire heritage of part of that "heritage as it is then used and enjoyed, there will pass to "the grantee all those continuous and apparent easements "which have been and are at the time of the grant used by the owners of the entirety for the benefit of the parcel granted, there can be little doubt of its correct66 ness; but it seems clear that the learned writer uses the "word 'grant' in the sense of reservation and mutual "grant, and intends to state that where the owner of the "entirety sells and grants a part of it in the fullest manner, there will still be reserved to such owner all such "continuous, apparent, or necessary easements out of or upon the thing granted as have been used by the owner "for the benefit of the unsold property during the unity "of possession. This is clearly shown by what is subsequently laid down, that it is immaterial which of the "two tenements is first granted, whether it be the quasi "servient or the quasi dominant. But I cannot agree "that the grantor can derogate from his own absolute "grant, so as to claim rights over the thing granted, even "if they were at the time of the grant continuous and

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66

66

apparent easements enjoyed by an adjoining tene"ment which remains the property of him, the grantor." His lordship goes on to disapprove of Pyer v. Carter, and 1 Suffield v. Brown, 12 W. R. 356.