corporeal cannot properly be appendant to a thing incorporeal, nor a thing incorporeal to a thing corporeal." But it is not true that the term is applicable only to things acquired by term of prescription. Thus, in the cases above cited, in the first, one sold a house-lot in front of which was an open area belonging to him, upon which he covenanted that no house should be erected, but that the same should be always kept open as public property. Being a part of the transaction of the purchase and sale, and a consideration for the same, it was held to create an easement in favor of the lot thus sold, and that the first grantee thereof, having conveyed the same to another, could not release it to the vendor or his assigns, or authorize them to erect buildings upon this open space. Nor would the easement be destroyed by a division of the estate to which the easement belonged. In the other, A granted to B twenty acres of land, and also a right to dig ore in another parcel of ten acres. And the question was whether the conveyance of the twenty acres carried with it a right to dig ore in the other parcel. And it was held that it did not, but that the right to dig ore was an incorporeal hereditament and a servitude in and upon the ten acres, but not appendant to the twenty acres, since the enjoyment of the one was in no wise necessary to the enjoyment of the other.2

10. A recent case in Massachusetts will serve, also, to illustrate what is requisite to create an easement, and render the

same appurtenant to an estate, and to show that a right [*24] * does not necessarily become appurtenant to an estate, al

though affecting the same, and granted to or reserved by the tenant thereof. In that case, A owned two estates adjoining each other, upon one of which was a dwelling-house having a projecting part in the rear, of one story in height. He sold the latter, subject to a restriction that the owner thereof should never raise the projection any higher than its then present condition. After that he sold the other estate to the plaintiff, and then executed a release to the first purchaser of the restriction upon his parcel, and the latter proceeded to raise the projecting part of his house

1 Hills v. Miller, 3 Paige, 254; Ayl. Pand. 312; D. 8, 4, 12; Whitney v. Lee, 1 Allen, 198; Whitney v. Union, 11 Gray, 359; Brouwer v. Jones, 23 Barb. 160; Parker v. Nightingale, 6 Allen, 341; Wilder v. St. Paul, 12 Minn. 204.

2 Grubb v. Guildford, 4 Watts, 223, 244, 246.

another story. The plaintiff brought a bill in equity to restrain him, on the ground that the right of enjoying his estate free from such an obstruction, which originally belonged to his grantor, passed as an easement therewith when he purchased it. But the court held that there was nothing in the deed of the first estate which showed that the restriction was intended to inure to the benefit of the estate now owned by the plaintiff, nor could he, therefore, as the owner thereof, avail himself of a right which his grantor had secured to himself without rendering it appurtenant

to the estate.1

Under the civil law, services did not admit of a division, and therefore a way or a road through a man's estate cannot be bequeathed in part nor taken away in part, for a service is total, in toto fundo, and total in every part thereof.2

11. There is, moreover, a kind of appendency or appurtenancy of one easement to and upon another easement, in some cases, which is sometimes called a secondary easement. It passes with the principal easement as being necessary or convenient to the enjoyment of the same.

Thus in Senhouse v. Christian, where there was a grant of a way for the purpose of carrying coals across a * cer- [* 25] tain parcel of land with wagons, wains, and other carriages; it was held that the grantee, as an incident to the grant, had a right to make a framed wagon-track along the course of the way indicated in the grant.3

So in Prescott v. Williams, the right to enter upon the land of another, and clear out obstructions in a watercourse which a mill-owner above had a right to enjoy through such land, was held to be an incident to such natural easement in the nature of a secondary easement.1

So the grant of a right of pasturage carries the right of way to and from the pasture. So that of drawing water, or of fishing or

1 Badger v. Boardman, 16 Gray, 569; Parker v. Nightingale, 6 Allen, 318; Weston v. McDermot, L. R. 1 Eq. Cas. 499.

2 Ayl. Pand. 311; Dig. 8, 1, 6.

3 Senhouse v. Christian, 1 T. R. 560; D. 8, 2, 19; Ibid. 8, 4, 11, 1; post, chap. 3, sect. 1, pl. 19; 2 Fournel, Traité du Voisinage, 404; 3 Toullier, Droit Civil Français, 500.

4 Prescott v. Williams, 5 Met. 429; Prescott v. White, 21 Pick. 341; Bract., fol. 232.

hunting, gives a right of access and egress to and from the estate in which it is to be enjoyed.1 [ED. So a right of repair is incident to a right of way. The owner of the servient tenement is not liable to an action for obstructing the owner of the easement in repairing, if he has not had reasonable notice of the intended repairs. It has been held that one who is entitled by grant to an aqueduct across another's land may dig soil from that land to repair a breach in the side of the aqueduct. Where one granted land to another free of all incumbrances, except that a third party, a corporation, has a right to have a horse-shed stand as it was at the time of the grant, "during the life thereof," it was held that the corporation might enter and repair the shed, so as to prolong its life.5 ]

But after all, instead of these ancillary rights being something appurtenant to easements, they seem rather to constitute an essential part or element of the principal easement itself, and will be further treated of when the subject of incidents of grants, and what is embraced therein, comes to be considered.

12. It may also be stated in this connection, in order to save repetition, that if an easement, like a right of way over another's land, becomes appurtenant to an estate, it passes with the grant of the principal thing, whether such grant, in terms, embraces privileges and appurtenances or not; and this, whether it is necessary to the enjoyment of the granted estate or not.?

1 Bract., fol. 232 a; Code Nap., art. 696; 2 Fournel, Traité du Voisinage, 404.

2 [McMillen v. Cronin, 57 How. (N. Y.) Pr. 53.]

[Mansfield v. Shepard, 134 Mass. 520.]

4 [Thompson v. Uglow, 4 Oreg. 369.]

5 [Benham v. Minor, 38 Conn. 252.]

Post, sect. 3, pl. 5.

7 [Peck v. Conway, 119 Mass. 546; George v. Cox, 114 Mass. 382. Cf. Harlow v. Whitcher, 136 Mass. 553;] Kent v. Waite, 10 Pick. 138; Atkins v. Bordman, 2 Met. 457; Beaudely v. Brook, Cro. Jac. 189; Jackson v. Hathaway, 15 Johns. 447; Brown v. Thissell, 6 Cush. 254; Underwood v. Carney, 1 Cush. 285; Smith v. Higbee, 12 Vt. 123; Staple v. Heydon, 6 Mod. 1; Grant v. Chase, 17 Mass. 443; Lawton v. Rivers, 2 M'Cord, 445; Pickering v. Stapler, 5 Serg. & R. 107; [Grubb v. Grubb, 74 Penn. St. 33;] United States v. Appleton, 1 Sumn. 402; Morgan v. Mason, 20 Ohio, 401; [Boatman v. Lasley, 23 Ohio St. 614; Green v. Collins, 86 N. Y. 246; Spaulding v. Abbott, 55 N. H. 423; Jackson v. Trullinger, 4 Oreg. 393; Warren v. Syme, 7 W. Va. 474;1 Harris v. Elliott, 10 Peters, 54; Karmuller v. Krotz, 18 Iowa, 360; Am. Co. Bradford, 27 Cal. 366.

But nothing will pass as an easement to a dominant estate, although it may have been used with it, unless a right thus to use it has become consummate and thereby made appurtenant to the granted premises, or is expressly mentioned in the deed conveying the same as an easement intended to be conveyed thereby. This doctrine was applied in the case of a grant of a certain lot of land on which there was a mill and mill-dam. The deed conveyed the land with the appurtenances thereof, with covenants of warranty. The dam, as it stood, flowed other lands than those of the grantor, but it had not been done so long enough to gain an easement thereby. It was held the deed did not convey any easement of right to flow, nor was the covenant of warranty in the deed thereby broken.1

* 13. Where, therefore, one grants or reserves a right of [* 26] easement over one parcel of land in favor of another, such easement, by such act of creation or annexation, would become. incident and appurtenant to such estates respectively, and pass as appurtenant in after conveyances, by, or even without, the word appurtenances, so long as such estates should subsist as distinct estates in different proprietors. Nor could the easement be separated from the principal estate, except by him who has a disposing power over the estate.2

And it has been, accordingly, held that a parol demise of lands passes a right to use all ways that are appurtenant to the same, whether named or not.3 But a new and original way cannot be created across another's land by a parol grant.1

But this rule does not apply where there is a conveyance of a specific parcel of land carved out of a larger one held by the grantor, and described by metes and bounds. In such case, nothing would pass as parcel of the granted premises which was a matter of ease and convenience only, except what is included within the boundaries expressed in the deed. Nor does it apply

to any but existing easements.6

1 Swazey v. Brooks, 34 Vt. 451. See Witherell v. Brobst, 23 Iowa, 589.

2 Ritger v. Parker, 8 Cush. 145; French v. Braintree Manufacturing Co., 23

Pick. 216; Witherell v. Brobst, 23 Iowa, 591.

Skull v. Gleinster, 16 C. B. N. s. 92.

Duinneen v. Rich, 22 Wis. 550.

5 Grant v. Chase, 17 Mass. 443.

Russell v. Scott, 9 Cow. 279.

14. And though a man may acquire an easement in gross, like a right of way over another's land, separate and distinct from the ownership of any other estate to which it is appendant, yet if his right to such way result from his ownership of a parcel of land to which it is appendant, he cannot by grant separate the easement from the principal estate to which it is appendant, so as to turn it into a way in gross, in the hands of his grantee.1

*

15. It may, accordingly, be stated as a general principle, that if an easement has become appurtenant to an estate, it follows [27] every part of the estate into whosesoever hands the same may come by purchase or descent; "quacunque servitus fundo debitur, omnibus ejus partibus debitur," provided the burden upon the servient estate is not thereby increased.2

SECTION III.

OF ACQUIRING EASEMENTS BY GRANT.

1. How Easements may be created by grant.

2. Easements never presumed to be in gross.

3. No one but the owner of the soil can grant an Easement.

4. No tenant in common can create Easements in Estates in common.
5. Implied grants of Easements.

6. Easements of necessity result from grants or reservations.

7. Nichols v. Luce. All Easements the result of grants.

8. Easements by grant implied from having been used.

9. Cases of Easements implied, as forming a part of the thing granted. 10. Cases where a grant carries an Easement in or parcel of an estate. 11. Cases where Easements are raised by grant, and not by reservation.

11a. Cases of grants and reservations of Easements.

12. Reference had to the circumstances of estates to explain grants.

13. Only existing Easements pass as incident to grants of estates.

1 Acroyd v. Smith, 10 C. B. 164; Year B. 5 Hen. VII., fol. 7, pl. 15, per Fairfax, J.; Woolr. Ways, 16; Garrison v. Rudd, 19 Ill. 558.

2 Orleans Navigation Co. v. Mayor of New Orleans, 2 Mart. 233; Lewis v. Carstairs, 6 Whart. 193; Watson v. Bioren, 1 Serg. & R. 227; Case of a Private Road, 1 Ashm. 417; Lansing v. Wiswall, 5 Denio, 213; Garrison v. Rudd, 19 Ill. 558; post, sect. 3, pl 38; 3 Toullier, Droit Civil Français, 494; D. 8, 3, 23, 3; Brossart v. Corlett, 27 Iowa, 297. But to bind a purchaser of a servient estate by a servitude charged thereon, he should have notice thereof, as in cases of other incumbrances upon land. And it has been held in Illinois that if the owner of land grant a right of way over it by deed or writing not recorded, and the same is fenced out on both sides and used by the grantee, it is held to be notice, to the purchaser of the estate, of the existence of such easement. McCann v. Day, 57 Ill. 101.