ments appurtenant to the part of the estate for the benefit of which they were established.1 Whether the estate sold be the servient or dominant tenement, the easement, or other incident of property, 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. 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 afterward 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 afterward 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 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, nor made one by the occupation 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 1 Kieffer v. Imhoff, 26 Penn. St. 438; McCarty v. Kitchenman, 47 Penn. St. 239; Cannon v. Boyd, 73 Penn. St. 179; Thompson v. Miner, 30 Iowa, 386; Huttemeier r. Albro, 18 N. Y. 48; 2 Bosw. 540. Scott v. Bentel, 23 Gratt. 1; Hardy v. McCullough, Id. 251. 3 Polden v. Bastard, L. R. 1 Q. B. 156, 161. 4 Cro. Jac. 121; Palmer v. Fletcher, 1 Lev. 122; Sury v. Pigott, Palmer, 2 Kutz v. McCune, 22 Wis. 628; 444; 3 Bulst. 339; Poph. 166. 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." This decision appears never to have been questioned, and is recognized as authority in numerous decisions.1 § 357. With respect to the rights of the vendor upon the severance of tenements, the decision in Pyer v. Carter2 has given rise to much discussion, and has been approved in certain cases in England and in this country. In that case 1 Suffield v. Brown, 33 L. J. (N. S.) Ch. 249; Pyer v. Carter, 1 H. & N. 916; Robins v. Barnes, Hobart, 131; United States v. Appleton, 1 Sumner, 492; Hazard v. Robinson, 3 Mason, 272; Philbrick v. Ewing, 97 Mass. 133; Coolidge v. Hagar, 43 Vt. 9, 14; Lampman v. Milks, 21 N. Y. 505; Burr v. Mills, 21 Wend. 290; Ogden v. Jennings, 62 N. Y. 526, 531; New Ipswich Factory v. Batchelder, 3 N. H. 190; Shaw. Etheridge, 3 Jones (N. C.) 300; Elliott v. Sallee, 14 Ohio St. 10; Farmer v. Ukiah Water Co., 56 Cal. 11; Pickering v. Stapler, 5 S. & R. 107; Seymour v. Lewis, 13 N. J. Eq. 439; Elliott v. Sallee, 14 Ohio St. 10. 21 H. & N. 916; Ewart v. Cochrane, 4 Macq. 117; Hall v. Lund, 3 B. & S. 761; 1 H. & C. 676; Pearson v. Spencer, 3 B. & S. 762; Chadwick v. Marsden, L. R. 2 Ex. 289. 3 Ibid.; Ewart v. Cochrane, 4 Macq. 117; Watts v. Kelson, L. R. 6 Ch. 166; Worthington v. Gimson, 2 El. & El. 618; Dillman v. Hoffman, 38 Wis. 559; Seibert v. Levan, 8 Penn. St. 383; Fetters v. Humphreys, 18 N. J. Eq. 260, 263; 19 N. J. Eq. 471; Janes v. Jenkins, 34 Md. 1. In Wheeldon r. Burrows, 12 Ch. D. 31, 48, 52, 59, Thesiger, L. J., while dissenting from the broad doctrine laid down in Pyer v. Carter, said: "That was a case of a somewhat special character. A house was conveyed to the defendant by a person who was the owner of that 3 house, and also of the house which was subsequently conveyed to the plaintiff; and there had been during the unity of the ownership the enjoyment of the easement of a spout which extended from the defendant's premises over the plaintiff's premises, and by which water was conveyed on to the latter. But it is material to observe that the water, when it came on to what were subsequently the plaintiff's premises, was conveyed into a drain on the plaintiff's premises, which drain passed through the defendant's premises, and in that way went out into the common sewer. Subsequently, the house over which this easement existed was conveyed to the plaintiff, and upon an obstruction of the drains in the defendant's house, which, be it observed, immediately caused a flooding of the plaintiff's house by the very water coming from the defendant's house, the plaintiff brought his action, and it was held there that the plaintiff was entitled to maintain his action, and that upon the original conveyance to the defendant, there was a reservation to the grantor of the right to carry away this water which came from the defendant's premises by the medium of the drain which also went through his premises. Though these circumstances were special in their character, there is no doubt that the principles laid down by the Court of 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: "We think that the owners of the plaintiff's house are, by implied grant, entitled to have the use of this drain for the purpose of conveying the water from his house, as it was used at the time of the defendant's purchase. 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." "It was urged that there could be no implied agreement unless the easement was apparent and continuous. The defendant stated he was not aware of this drain at the time of the conveyance to him, but it is clear that he must have known or ought to have known that some drainage then existed, Exchequer were as wide as possibly could be. That Court laid down that there was no distinction between implied reservation and implied grant; and this, as it appears to me, broke the hitherto unbroken current of authority upon this subject." "I cannot see that there is anything unreasonable in supposing that in such a case, where the defendant, under his grant is to take this easement, which had been enjoyed during the unity of ownership, of pouring his water upon the grantor's land, he should also be held to take it subject to the reciprocal and mutual easement by which that very same water was carried into the drain on that land and then back through the land of the person from whose land the water came. It seems to me to be consistent with reason and common sense that these reciprocal easements should be implied; and, although it is not necessary 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 for discussion, to consider that point." and if he had inquired he would have known of this drain; therefore it cannot be said that such a drain could not have been supposed to have existed; and we agree with the observation of Mr. Gale that by apparent signs' must be understood not only those which must necessarily be seen, but those which may be seen or known on a careful inspection by a person ordinarily conversant with the subject. 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. 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 other cases in England,2 and in Massachusetts,3 Maine, and Maryland.5 § 359. 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 14 De Gex, J. & S. 185; 10 Jur. N. s. 111; 6 Jur. N. s. 999; Morland v. Cook, L. R. 6 Eq. 252. 2 Dodd v. Burchell, 1 H. & C. 113; Crossley v. Lightowler, L. R. 2 Ch. 478, 480; Wheeldon v. Burrows, 12 Ch. D. 31; Polden v. Bastard, L. R. 1 Q. B. 156, 160; White v. Bass, 7 H. & 3 Carbrey v. Willis, 7 Allen, 364, 369; Randall v. McLaughlin, 10 Allen, 366; 6 Allen, 201. 4 Warren v. Blake, 54 Maine, 276. 5 Mitchell v. Seipel, 53 Md. 251. 62 Met. 234. he occupied, and permitted his tenants to use it for about ten years. He then sold both lots by simultaneous conveyances1 to different purchasers, and 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. The learned judge said: "If a man, owning two tenements, has built a house on one, and annexed thereto a drain passing through the other, if he sell and convey the house with the appurtenances, such a drain may be construed to be de facto annexed as an appurtenance, and pass with it; and because such construction would be most beneficial to the grantee: Whereas, if he were to sell and convey the lower tenement, still owning the upper, it might reasonably be considered that, as the right of drainage was not reserved in terms, when it naturally would be if so intended, it could not be claimed by the grantor. The grantee of the lower tenement, taking the language of the deed most strongly in his own favor and against the grantor, might reasonably claim to hold his granted estate free of the incumbrance." As the conveyances from the owner of the whole estate under 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 in 1 See, also, Kilgour v. Ashcom, 5 H. & J. 82; Elliott v. Sallee, 14 Ohio St. 10. 2 Sury v. Pigott, Palmer, 444; 3 Bulst. 339; ante, c. 7. |