lower one to draw the water from the pond of that mill in the manner in which it was done when the conveyance was made.1 In Louisiana, when a party grants an estate to which an apparent easement belongs, he is considered as warranting that he will do nothing to prevent its full enjoyment, though no mention is made of it in the grant.2 The latest English case which has come to hand bearing upon this subject is Russell v. Harford, decided in 1866.3 In that case the defendant was, originally, the owner of two adjoining parcels with dwelling-houses thereon, which he had let to two different tenants. On lot A was a well, from which the tenant of lot B by permission drew water for his premises, by a pipe laid from B to the well. In this condition of things, the lots were sold by the defendant at auction, A being first bid off by the tenant thereof, and then B, by the tenant of that lot. The plaintiff bid off A, and the defendant, the vendor, declined delivering any deed of the estate unless it contained a reservation or exception of the right of the owner of B to draw water from the well, and the right to repair and renew the pipe aforesaid. The suit was in equity to compel the defendant to give an unrestricted deed. One of the conditions of sale stated that the premises were sold "subject to rights of way and water, and other easements (if any) charged or subsisting thereon." The purchaser of B had been tenant from year to year of the premises which he bid off. The plaintiff insisted that the facts did not establish a right of easement to water in B over A, but that the quasi servitude to which the latter had been subjected by the owner was discharged by his absolute sale thereof to a purchaser by the vendor of both parcels while he owned them both, and he cited Suffield v. Brown as an authority. The defendant insisted that the easement passed because lot B would be useless without the right to water, and cited Wardle v. Brocklehurst, but did not refer to Pyer v. Carter. The Vice-Chancellor Kindersley, without citing any authority, held that this right could not have been embraced in the expressions used in the conditions of sale, as the only right of the tenant of B to draw water was by license from 1 Elliott v. Sallee, 14 Ohio St. 10; Morgan v. Mason, 20 Ohio, 401. 2 Bruning v. N. Orleans Canal, &c., 12 Louis. An. 541. 3 Russell v. Harford, L. R. 2 Eq. 507; French v. Morris, 101 Mass. 68. 4 Wardle v. Brocklehurst, 29 L. J. (Q. B.) 145. the owner, that the two purchasers of the lots made their contracts upon the basis of the conditions of sale, and that if it had intended to create a right or liability as between the purchasers of the different lots, it should have been clearly expressed in the terms of the sale; and in the absence of any such restriction or limitation, the plaintiff was entitled to a deed without other exception or reservation of the servitude claimed. The case therefore seems to have turned upon the construction given to the contract of the parties, rather than upon any implied grant or reservation of a right growing out of the sale of one of two heritages. And another circumstance in the case distinguishes it from those where the parts of the heritage have been arranged and adapted to each other by the owner thereof, since, in the case under consideration, the laying of the pipe from the well in one parcel to the house on the other, was done by the tenants thereof, independent, for aught that appears, of any act or intention on the part of the owner of the estate. 25 a. In several, especially of the more recent, cases which have been cited, that of Pyer v. Carter has been referred to, and an importance given to it which renders it desirable to ascertain to what extent it is to be regarded as a statement of what the law is upon the subject of which it treats. The case is repeatedly cited in the present work, and was received, at the time of the preparation of the former edition, as the law of the English courts. It is reported in 1 H. & Norm. 916, and the facts, as stated, were these: The plaintiff's and defendant's houses adjoined each other. They had formerly been one house, and were converted into two by the owner of the whole property. Subsequently the defendant's house was conveyed to him, he knowing the existence of this drain; and after that the plaintiff took a conveyance of his house from the same grantor. At the time of the respective conveyances, the drain ran under the plaintiff's house and then under the defendant's house, and discharged itself into the common sewer. The plaintiff's house was drained through this drain; but he might have stopped it, and made a new one over his own land into the sewer for six pounds. The court held that, under these circumstances, the plaintiff had an easement of drain through the defendant's premises by an implied grant, and that the defendant was liable for stopping it. The Chancellor, in giving an opinion in the case of Suffield v. Brown,1 seems to have gone out of his record to attack and endeavor to overrule this case of Pyer v. Carter. The case before him was one where a man, owning a dock and wharf, with a strip of land adjoining it, sold the wharf and strip of land, without making any reserve in favor of the dock. He had been accustomed, when using the dock for vessels, to have their bowsprits extend over some part of the wharf, and, from the size of the dock, this was necessary in order to have vessels lie there. He attempted to enforce this right against his grantee, but the court refused him the relief which he claimed. The easement claimed was, obviously, a non-continuous one, nor was there any thing to render it apparent beyond the fact of the size and dimensions of the dock. The connection between such an easement as this and the case of a drain, as in Pyer v. Carter, is far from being obvious. But the Chancellor takes occasion to go much at length into the doctrine of easements by implied grants. He cites from Mr. Gale's work his remarks upon this subject, and adds: "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 apparent easements enjoyed by an adjoining tenement which remains the property of him, the grantor." He next proceeds to comment upon the doctrine of destination du père de famille, in the manner already stated, and then notices" the fallacy in the judgment of the Court of Exchequer in the case of Pyer v. Carter;" and concludes, "I cannot look upon the case as rightly decided, and must wholly refuse to accept it as an authority." He approves of the doctrine of Nicholas v. Chamberlain and Sury v. Pigott, which are also repeatedly referred to in the present work, and admits that there may be two adjoining houses so constructed as to be mutually subservient to and dependent on each other, neither being capable of standing or being enjoyed without the support it derives from its neighbor, in which case the alienation of the one house by the owner of both, would not estop him from claiming, in respect of the house he retains, that support from the house sold which is, at the same time, afforded in return by the former to the latter tenement, as in Richards v. Rose.5 But where the right is sepa 1 10 Jur. N. s. 111. 4 Palmer, 444. 2 Ante, p. 17. 3 Cro. Jac. 121. rable, it is severed, and either passed or extinguished by the grant. If it were not for what is said by him of Nicholas v. Chamberlain, it might, perhaps, be assumed, that he made a distinction. between granted and reserved rights. But that case expressly disregards such a distinction. Some of the Chancellor's positions certainly seem to be opposed to opinions which more than one of the American courts have expressed; and as to the point ruled by the court in Pyer v. Carter, the weight of authority, so far as numbers are concerned, seems to be against his opinion. Thus, in one case, Martin, B., says Pyer v. Carter" was no more than an implied grant of a right analogous to that of flowing water," and "went to the utmost extent of the law; but, if considered, that decision cannot be complained of; for if a man have two fields drained by an artificial ditch cut through both, and he grants to another one of these fields, neither he nor the grantee can stop up the drain in it. I agree with the law as laid down in that case, and I think it may be supported without extending the doctrine of the right of way."1 Channel, B., in Hall v. Lund says: "In Ewart v. Cochrane, the House of Lords confirmed the principle of the decision in Pyer v. Carter," and adds, "the case of Pyer v. Carter, which was confirmed, and its principle explained by the House of Lords, compels me to come to this conclusion," that is, the judgment which he rendered in that case.2 The doctrine of Pyer v. Carter is recognized more or less directly and authoritatively, in the cases following, viz.: by the Chancellor in Ewart v. Cochrane, by Wightman, J., in Worthington v. Gimson and Polden v. Bastard, by the New York court in Huttemeier v. Albro,5 by the reporter in Glave v. Harding, and by the court of Pennsylvania in McCarty v. Kitchenman,7 in which the opinion of the Chancellor in Suffield v. Brown is referred to, with the remark that the easement in that case was neither continuous nor apparent, and it does not seem to have been regarded as an authority in deciding the case then before them. 1 Dodd v. Burchell, 1 H. & Colt. 121. 21 H. & Colt. 681, 685. See also 105 Eng. C. Law Rep. 626; note Am. ed. 32 E. & Ellis, 618. 44 B. & Smith, 258. 5 18 N. Y. 52. 6 3 H. & Norm. 944, note. 7 47 Penn. St. 243. In Crossley v. Lightowler, in 1866, the counsel on both sides refer to Pyer v. Carter and Suffield v. Brown, and the Vice-Chancellor Wood states what the decision in the former established, without any suggestion that it is not a reliable authority, and one of the counsel insists that Suffield v. Brown does not overrule it.1 The case is also cited by Chapman, J., in Leonard v. Leonard,2 and by Hoar, J., in Carbrey v. Willis, but without comment or objection. Nor has any case except Suffield v. Brown been found which militates with the doctrine of that case, unless that of Randall v. McLaughlin 4 is to be so regarded. In the latter case Hoar, J., in giving the opinion of the court, says: "The authority of Pyer v. Carter, the leading English case on which the plaintiff relies, was wholly denied by the Chancellor of England in the opinion given in Suffield v. Brown, which contains an elaborate review of the whole doctrine, resulting in conclusions substantially like those to which we came in Carbrey v. Willis." The facts and judgment in the last-mentioned case were these. A drain was an ancient one constructed by the owner of two or more houses, passing from one under the other to the place of discharge. One of these houses he sold to one person, and the other to another, but the drain was not apparent, and neither of the purchasers knew of its existence for many years after such purchase by them, when it was discovered by becoming obstructed. As the lower of the two houses was first sold, if the drain could be claimed for the benefit of the upper one, it must be by way of implied reservation, as in the case of Pyer v. Carter, as it was not mentioned in the deed. The court, with obvious propriety, held " that 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." "Where there is a grant of land by metes and bounds without express reservation, and with full covenants of warranty against encumbrances, there is no just 1 L. R. 3 Eq. 286. This case came before the Chancellor by appeal. See L. R. 2 Ch. Ap. 478, where, referring to Lord Westbury's opinion in Suffield v. Brown, he said: "I entirely agree with this view," p. 486. 27 Allen, 283. 3 7 Allen, 369. 4 10 Allen, 366. |