of a dam on another's soil entitles the grantee to enter for the purpose of repairing the dam.' It is, however, a matter of contract depending entirely upon the construction of the conveyance, and the above rules are applicable, according to the character, state and use of the premises at the time of the grant, only where the intention of the parties in this respect is not expressed in terms.2

§ 355. Same-Implied grants.- A grant will be implied especially in favor of easements of air and light, lateral support, partition walls, drains, aqueducts, conduits, and waterpipes or spouts, all these being continuous easements technically so called, that is, easements which are enjoyed without any active intervention of the party entitled to enjoy them; but ways are not in this sense continuous easements, being enjoyed only as they are traveled. The application of the doctrine to ways has been quite uniformly denied, although there are cases,

29 S. W. Rep. 1097. See Dunklee v. 55 N. H. 423. Upon the subdivision Wilton R. Co., 24 N. H. 489.

1 Frailey v. Waters, 7 Penn. St. 221; Fountain v. Perth Amboy, 60 N. J. L. 410; Skull v. Glenister, 11 W. R. 368; Goodhart v. Hyett, 32 W. R. 165; Phear's Rights of Water, 72-74. See Mansfield v. Shepard, 134 Mass. 520. 2 Hall v. Lund, 1 H. & C. 676; Johnson v. Jordan, 2 Met. 234. 239.

3 Cox v. Forrest, 60 Md. 74; Corbett v. Jonas, [1892] 3 Ch. 137; Toothe v. Bryce, 50 N. J. Eq. 589; Meredith v. Frank, 5 Ohio St. 479; 45 Cent. L. J. 352, and note. An implied grant or reservation of appurtenances or easements is much more readily inferred in the grantee's favor than the grantor's. Marcy v. Reimer, 62 N. Y. S. 203. "An easement, where it is not expressly described in the conveyance, must actually belong to the estate conveyed in order to pass by implication." Philbrick v. Ewing, 97 Mass. 133; Johnson v. Knapp, 146 Mass. 70, 75; Bumstead v. Cook, 169 Mass 410; Swanzey v. Brooks, 34 Vt. 451; McElroy v. McLeay (Vt.), 45 Atl. Rep. 898; Spaulding v. Abbott,

for building lots of a tract of land, for which an easement in fee in the water of a spring has been created by deed, for the benefit of and appurtenant to the tract, each lot has an interest in the easement. Durkin v. Cobleigh, 156 Mass. 108. 111; Blood v. Millard, 172 Mass. 65. See Wheelock v. Jacobs, 70 Vt. 162; Van Horn v. Clark, 56 N. J. Eq. 476.

4 Pheysey v. Vicary, 16 M. & W. 484; Whalley v. Thompson, 1 B. & P. 371; Worthington v. Gimson, 2 El. & El. 618; Dodd v. Burchell, 1 H. & C. 113; Polden v. Bastard, 4 B. & S. 258; L. R. 1 Q. B. 155; Barlout v. Rhodes, 1 C. & M. 448; Thompson v. Waterlow, L. R. 6 Eq. 36; Langley v. Hammond, L. R. 3 Ex. 161; Daniel v. Anderson, 31 L. J. N. s. 610; Fetters v. Humphreys, 19 N. J. Eq. 471; O'Rorke v. Smith, 11 R. I. 259; Providence Tool Co. v. Corliss Steam Engine Co., 9 R. I. 564; Evans v. Dana, 7 R. I. 306; Kenyon v. Nichols, 1 R. I. 411: Lampman v. Milks, 21 N. Y. 505; White v. Builders' League, 52 N. Y. S. 65.

especially in Pennsylvania, in which it has been held that ways which are visibly and permanently established on ore part of an estate for the benefit of another, will, upon a severance of the estate, pass as implied or constructive easements appurtenant to the part of the estate for the benefit of which they were established. Whether the estate sold be the servier or dominant tenement, the easement, or other incident of prop erty, in order to pass by implication, must be open, apparent, and continuous.2 The right to go to a well and there take water is not a continuous easement nor is it an easement of necessity.3

§ 356. Same.-In Nicholas v. Chamberlain, it was held upon demurrer, "that if one erect a house, and build a conduit thereto in another part of his land, and convey water by pipes to the house, and afterwards sell the house with the appurtenances, excepting the land, or sell the land to another, reserving to himself the house, the conduit and pipes pass with the house; because it is necessary, et quasi appendant thereto; and he shall have liberty by law to dig in the land for amending the pipes, or making them new, as the case may require. So it is, if a 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 appurtenances to one, and the land to another, the vendee shall have the conduit and the pipes, and liberty to amend them. But by Popham, Chief Justice, if the lessee erect such a conduit, and afterwards the lessor, during the lease, sell the house to one, and the land wherein the conduit is to another, and after the lease determines; he who hath the land whereir the conduit is, may disturb the other in the using thereof, ana may break it; because it was not erected by one who had a permanent estate or inheritance, nor made one by the occupa

tion and usage of them together by him who had the inheritance. So it is if a disseisor of an house and land erect 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 'not compellable to suffer the other to enjoy the conduit." This decision appears never to have been questioned, and is recognized as authority in numerous decisions.1

§ 357. Pyer v. Carter.― With respect to the rights of the vendor upon the severance of tenements, the decision in Pyer v. Carter' has given rise to much discussion, and has been approved in certain cases in England and in this country.

that case the action was for stopping a drain discharging into a common sewer and running through the adjoining premises of the plaintiff and the defendant, which had formerly been one estate and were converted into two by a former owner after the construction of the drain. It appeared that the plaintiff might have made a drain directly from his house into the sewer at a trifling expense, and the defendant testified that he did not know of the existence of the drain at the time of the conveyance to him. Judgment was for the plaintiff, and Watson, B., said: "It seems in accordance with reason that where the owner of two or more adjoining houses sells and conveys one of the houses to a purchaser, that such house in his hands should be entitled to the benefit of all the drains from his house, and subject to all the drains then necessarily used for the enjoyment of the adjoining house, and that without express reservation or grant, inasmuch as he purchases the house such as it is. If that were not so, the inconveniences and nuisances in towns would be very great." "We think that it was the defendant's own fault that he did not ascertain what easements the owner of the adjoining house exercised at the time of his purchase."

§ 358. Same. In the subsequent case of Suffield v. Brown,1 the owner of a dock and an adjoining wharf conveyed the wharf without reservation, and it was held that no reservation of an easement was implied, in favor of the vendor, and for the perfect enjoyment of the dock, to have the bowsprits of vessels project over the wharf. Lord Westbury, L. C., said: "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 apparent easements enjoyed by an adjoining tenement which remains the property of him, the grantor." Of Pyer v. Carter, his lordship said: "I cannot look upon the case as rightly decided, and must wholly refuse to accept it as any authority." The doctrine of Pyer v. Carter has also been disapproved in

sary to decide the point, it seems to me worthy of consideration in any after case, if the question whether Pyer v. Carter is right comes up for discussion, to consider that point."

14 De Gex, J. & S. 185; 10 Jur. N. S. 111; 6 Jur. N. s. 999; Morland v. Cook, L. R. 6 Eq. 252.

other cases in England, and in Massachusetts, Maine, and Maryland.

2

$359. Simultaneous and non-simultaneous grants.— In Johnson v. Jordan,' in Massachusetts, the owner of two adjoining lots, one occupied by himself and the other leased by him, constructed a drain leading into a common sewer from the leased premises through those which he occupied, and permitted his tenants to use it for about ten years. He then sold both lots by simultaneous conveyances to different purchasers, did not refer to the drain in the deed of the premises which he had previously leased. This deed was held to pass no right to the use of the drain through the other lot, if, by reasonable labor and expense, the grantee could make a drain without going through that land. In delivering the opinion of the court, Shaw, C. J., distinguished an artificial gutter, made for the purpose of drainage,' from a natural watercourse, of which each adjoining proprietor has a natural right to the benefit, as it passes through his land, not as an easement or appurtenance, but as parcel, for all useful purposes to which it may be applied, and from those cases wherein the declivity of the land and the relative position of the tenements are such that a drain cannot be formed with reasonable labor and expense for the benefit of one without passing through the other. As the conveyances from the owner of the whole estate under

1 Dodd v. Burchell, 1 H. & C. 113; Crossley v. Lightowler, L. R. 2 Ch. 478, 486; Wheeldon v. Burrows, 12 Ch. D. 31; Polden v. Bastard, L. R. 1 Q. B. 156, 160; White v. Bass, 7 H. & N. 722; Allen v. Taylor, 16 Ch. D. 355; Russell v. Watts, 10 A. C. 590; 25 Ch. D. 559; Bunting v. Hicks, 70 L. T. 455.

2 Carbrey v. Willis, 7 Allen, 364, 369; Randall v. McLaughlin, 10 Allen, 366; 6 Allen, 201; Jones v. Adams, 162 Mass. 224.

3 Warren v. Blake, 54 Maine, 276. 4 Mitchell v. Seipel, 53 Md. 251. 52 Met. 234.

"See, also, Kilgour v. Ashcom, 5 H. & J. 82; Elliott v. Sallee, 14 Ohio St. 10.

7 The grantor of such an easement may cover and build upon the drain. St. Joseph Valley Ry. Co. v. Galligan (Mich.), 79 N. W. Rep. 685.

8 Sury v. Pigott, Palmer, 444; 3 Bulst. 339; ante, ch. 7. Where a land-owner erected a double dwelling-house on two adjacent town lots, having in the rear yard, near the division line, a well, which, though the houses were sold separately, was used in common for more than twenty years, a grant to use the well was held to be implied. Eliason v. Grove, 85 Md. 215; see Larsen v. Peterson, 53 N. J. Eq. 88; Davies v. Thomas, [1899], W. N. 244.