which the parties claimed were simultaneous, the case was considered to be more like a partition between tenants in common, where each party takes his estate with the rights, privileges, and incidents inherently attached to it, than the case of grantor and grantee, where the grantor conveys a part of his land by metes and bounds, and retains another part to his own use, and where the question is, upon the terms of the deed, whether an easement for drainage was granted with the estate conveyed over that retained, or reserved over that conveyed for the benefit of that retained.

§ 360. Same.--In Carbrey v. Willis, in the same State, it was held that, where the grant of the lower estate precedes that of the other, no easement can be taken as reserved by implication, unless it is de facto annexed and in use at the time of the grant, and is necessary to the enjoyment of the estate which the grantor retains, such necessity not being deemed to exist, if a similar privilege can be secured by reasonable trouble and expense; and that where there is a grant of land by metes and bounds, without express reservation, and with full covenants of warranty against incumbrances, there is no just reason for holding that there can be any reservation by implication, unless the easement is strictly one of necessity. In Roberts v. Roberts,2 in New York, it was held that, if a land-owner changes the course of a stream running through his land by cutting an artificial ditch to carry off its waters, the change in the condition of the land being permanent and visible, and afterwards conveys to different grantees the respective portions of the land on which are the old and new channels, the one grantee holds his portion relieved from the stream and the other burdened with it. In other cases, in this State, it is held that the presumption that the parties contract with reference to the visible physical condition of the property at the time of the conveyance, may be rebutted by proof that there is no apparent sign of the servitude indicating its existence to

17 Allen, 364; Collier v. Pierce, 7 Gray, 18; Hapgood v. Brown, 102 Mass. 453; Pettingill v. Porter, 8 Allen, 1; Thayer v. Payne, 2 Cush. 327; Warren v. Blake, 54 Maine, 276; Dolliff v. Boston & Maine Railroad,

68 Maine, 173; Parker v. Bennett, 11 Allen, 388; Green v. Collins, 86 N. Y. 246; 40 Am. Rep. 531, and note.

255 N. Y. 275; Lampman v. Milks, 21 N. Y. 505; Dunklee v. Wilton Railroad, 24 N. HL. 489.

a person reasonably familiar with the subject upon an inspection of the premises, or by proof of actual knowledge on the part of the parties of facts which negative any deduction to be drawn from their apparent condition.1

§ 361. Seymour v. Lewis.- The decision in Seymour v. Lewis, in New Jersey, inclines more strongly to support the doctrine of the French law. It was there held that when the owner of two tenements sells one of them, the purchaser takes his tenement with all the burdens as well as benefits, as between it and the property which the grantor retains, which appear at the time of the sale to belong to it; and that, upon the facts of the case, the privilege of diverting water, by means of conduits and pipes, from a spring in one parcel of land to a mill upon other land belonging to the same owner, was reserved by implication to the grantor, under his grant of the first parcel by metes and bounds, without reservation or reference to the easement.

§ 362. Ground of implied grants.- No implication of a grant of an easement arises from proof that the land granted could not be conveniently occupied without it. Its foundation rests in a necessity for it, not in convenience.

4

In New Ipswich Factory v. Batchelder, a tract of land was conveyed, described by metes and bounds, with a mill upon the same. At the time of the conveyance, a raceway to conduct the water from the mill ran along the side of the natural stream, beyond the land granted, into other land of the grantor, and then dis

1 Butterworth v. Crawford, 46 N. Y. 349; Simmons v. Cloonan, 47 N. Y. 3; Curtis v. Ayrault, 47 N. Y. 73. See Wardle v. Brocklehurst, 1 El. & El. 1058; Shaw v. Etheridge, 3 Jones (N. C.), 300.

213 N. J. Eq. 439; Denton v. Leddell, 23 id. 64; 24 id. 567; Fetters v. Humphreys, 18 id. 260; 19 id. 471.

3 Dodd v. Burchell, 1 H. & C. 113, 122; Pearson v. Spencer, 3 B. & S. 761; Birmingham & B. Co. v. Ross, 38 Ch. D. 295, 308; Nichols v. Luce, 24 Pick. 102; Gayetty v. Bethume, 14 Mass. 49; Thayer v. Payne, 2 Cush. 327; Carbrey

v. Willis, 7 Allen, 364, 369; Leonard v. Leonard, 2 id. 543; Trask v. Patterson, 29 Maine, 499, 503; New York, etc. R. Co. v. Railroad Com'rs, 162 Mass. 81; Kingsley v. Land Impr. Co., 86 Maine, 279; Boyd v. Woolwine, 40 W. Va. 282; Christian M. B. Co. v. Fasse, 24 Wk. L. Bul. (Ohio) 132; Wentworth v. Philpot, 60 N. H. 193; Howell v. McCoy, 3 Rawle, 256; Smyles v. Hastings, 22 N. Y. 217; Brakely v. Sharp, 9 N. J. Eq. 9; 10 id. 206; McTairsh v. Carroll, 7 Md. 352. 43 N. H. 190; ante, § 355.

charged the water into the natural stream. This raceway had been used with the mill for several years, and was necessary for the convenient working of the mill. It was held that the right to have the water flow off through the whole extent of the raceway passed as appurtenant to the mill. A right of way by necessity does not depend upon the existence of such right prior to the conveyance of the land,' but it has never been held that the grantee has any right, on the ground of necessity, to construct a new drain through his grantor's land; and although the necessity is evidence to establish an implied grant or reservation of an easement, the easement itself is never created or enlarged by mere necessity. It depends upon priority of title and the absence of other practicable means, and it continues only, so long as the necessity continues.

1 Powers v. Harlow, 53 Mich. 507; Benedict v. Johnson (Ky.), 42 S. W. Rep. 335. One whose lands are surrounded by others' land has a right of access to a public highway over such land, even though he may have access to the highway by a difficult and circuitous route. Re Brecknock Township Road, 2 Endlich (Pa.), 437.

2 Russell v. Jackson, 2 Pick. 578; Hart v. Cramer, 25 Conn. 331; Collins v. Prentice, 15 Conn. 39; Pierce v. Selleck, 18 Conn. 321.

3 Wiswell v. Minogue, 56 Vt. 616; Myers v. Baker, 60 N. Y. S. 797; Lebus 2. Boston (Ky.), 51 S. W. Rep. 609; San Joaquin Valley Bank v. Dodge, 125 Cal. 77. Upon a like principle, by the

grant of trees is granted withal, unless the right of cutting be restrained, power to cut them down and take them away; by the grant of mines is granted the power to dig them; and by the grant of fish in a man's pond, is granted power to come upon the banks and fish for them, but not to dig a trench te let the water out to take the fish, when they can be taken by nets or other devices. Sheppard's Touchstone, 89; Finch's Law, 63.

4 Trump v. McDonnell (Ala.), 24 S. Rep. 353; Titchmarsh v. Royston W. Co., [1899] W. N. 256; Ipswich Grammar School v. Proprietors, 174 Mass. 572; Uhl v. Ohio R. Co. (W. Va.), 34 S. E. Rep. 934.

382.

383, 384.

Ibid.-Reversioners.

Ibid.-Joint tenants and tenants in common.

Action by one tenant in common against co-tenant. 385. Vendor and vendee.

386. Right of action for past injury not transferable.

387. Parties liable as defendants.

388, 389. Ibid.-Creator of nuisance liable after alienation. 390. Ibid.- Contra, in New York.

391. Ibid.-Landlord not usually liable for tenant's act 392. Ibid.-Notice to abate nuisance, when required.

393, 394. Ibid.— Requisites of such notice.

395. Ibid.-Grantee liable, without notice, for new nuisance. 396. Ibid.-Tortfeasors when jointly and severally liable.

397, 398. Ibid.-When not jointly liable.

399. Ibid.- Creator of nuisance liable, though not owning or occupying. 400. Survival of suits.

401-405. Actual damage not necessary to support action. 406-410.-Reasonable use of stream by a riparian proprietor. 411. Damages.

412-414. Ibid.— Where damage is the gravamen of the action. 415-420. Ibid.-Permanent injuries-Exemplary damages. 421, 422. Ibid.-Single trespasses.

423, 424. Ibid.- Continuing trespasses.

425-431. Venue and jurisdiction - Private actions.

432-435. Ibid. Of indictments.

436-443. Ibid.- Different sovereignties.

444. Ibid.-The rule in equity.

Ibid.― Jurisdiction exercised by the Federal courts.
Other remedies at law-On covenants.

445, 446.

447-461.

SECTION.

475-480. Pleading-The declaration or complaint. 481-487.-Ibid.— Allegation and proof of breach. 488-491. Ibid.- Defences and pleas.

§ 363. Nuisance-Abatement.-A person specially injured by a nuisance may lawfully enter upon the premises of another who maintains it, for the purpose of abating it, or of removing the obstruction which is the cause of the injury, when this can be done without a breach of the peace. This right appears to exist in favor of a lessee, or any other person lawfully in possession, as well as the owner in fee. Under this rule a dam which causes the water to flow back to an unreasonable extent may be removed, so far as necessary, by an upper proprietor whose land is thereby flowed without his license; an obstruction to the free flow of the water to or from a mill may be removed; an artificial channel, through

3

1 Batten's Case, 9 Rep. 54b; Raikes v. Townsend, 2 Smith, 9; Baldwin v. Smith, 82 Ill. 162; Day v. Day, 4 Md. 262; Hamilton v. White, 5 N. Y. 9; ante, § 128; 32 Cent. L. J. 445.

559; 30 Am. L. Reg. N. S. 157; Raymond v. Fish, 51 Conn. 80; State v. Speyer, 67 Vt. 502; Gould v. Rochester, 105 N. Y. 46; People v. Board of Health, 140 id. 1; Board of Health v.

2 Great Falls Co. v. Worcester, 15 Copcutt, id. 12; Rochester v. SimpN. H. 435, 436.

3 Heath v. Williams, 25 Maine, 209; Brown v. Chadbourne, 31 id. 26; Hodges v. Raymond, 9 Mass. 316; Jewell v. Gardiner, 12 id. 311; Colburn v. Richards, 13 id. 420; Knoll v. Light, 76 Penn. St. 268; Overton v. Sawyer, 1 Jones (N. C.), 308; Brisbane v. O'Neall, 3 Strob. 348. So of a surveyor of highways removing ice and snow from a private water-course. Johnson v. Dunn, 134 Mass. 522. See Grace v. Newton Board of Health, 135 Mass. 490; Neally v. Bradford, 145 id. 561. In the absence of statute, neither the board of health nor the city council of a city can proceed in invitum to abate a nuisance on adjacent land by erecting a dam. Cavanagh v. Boston, 139 Mass. 426. Upon the power of boards of health, etc., to abate nuisances, without paying damages, see, also, 24 Am. L. Rev.

son, 134 id. 414; Haag v. Mt. Vernon, 58 N. Y. S. 581; Balch v. Utica, 59 id. 513; Wood v. Hinton (W. Va.), 35 S. E. Rep. 824; Huse v. Amesbury Board of Health, 163 Mass. 240; Hurst v. Warner. 102 Mich. 238; 47 Am. St. Rep. 525, 533, n.; Smith v. Baker, 14 Penn. Co. Ct. 65; Com. v. Yost, 11 Penn. Supr. Ct. 323; 38 Am. L. Reg. N. s. 520; Bristol Door Co. v. Bristol (Va.), 33 S. E. Rep. 588; Ex parte Keeler, 45 S. C. 537, 545; Roberts v. Harrison, 101 Ga. 773; 57 Albany L. J. 326. As to abatement under the police power, see Aitken v. Wells River, 70 Vt. 308; 41 L. R. A. 566, and note; 45 Cent. L. J. 487. As to the statutory power of cities to levy the expense of drainage upon the land-owner, see Lasbury v. McCague, 56 Neb. 220.

4 Prescott v. Williams, 5 Met. 429; Colburn v. Richards, 13 Mass. 420. If