In a recent case there were several joint-owners of a fish-house which they used in connection with carrying on fishing by means of seines. For this purpose they had exercised the right of way across an intermediate parcel of land which belonged to one of the proprietors of the fish-house. This use was continued the requisite period of time to gain an easement, and was exercised by successive owners of the fish-house, but they were not a corporation. It was held that as owners of the house they had acquired an easement appurtenant to that, nor did it make any difference that one of their number owned the servient estate.1 EFFECT OF CONVEYING ONE OF TWO ESTATES IN REVIVING FORMER EASEMENTS. 1. Subject stated and limited. 2. Natural easements revive on dividing estates. 3. So do easements which are necessary. 4. What the consideration of the subject assumes. 5. Such easements only revive as are apparent. 6. Easements revive by reservation as well as grant. 7. Easements extinguished do not pass by the term appurtenant. 8. What easements pass with an estate, though not named as appurtenant. 9. How far such easement must be necessary to the estate. 10. Dunklee v. Wilton Railroad. Same subjects. 1. THOUGH the law intended to be considered under this head must obviously have many analogies with the general subject discussed in a former part of this work, the effect of dividing heritages in creating easements or servitudes in one part in favor of the other, there seemed to be a propriety in treating, as a separate topic, the case of two estates in respect to which easements may have once existed, but which have subsequently been extinguished by a union of the two in the same ownership and possession. The question in such case arises as to the effect of a conveyance of one of these estates by such owner, retaining the other himself, or of a separate conveyance of each estate to two different owners. Do the easements or servitudes in such a case revive thereby, as they 1 Bradley Fish Co. v. Dudley, 37 Conn. 136. See Ivimey v. Stocker, L. R. 1 Ch. Ap. 396. had existed in relation to each estate before they had been extinguished by unity of title and possession, or by what line and limit is the rule determined in regard to such easements reviving upon the conveyance of one or both of the estates? 2. So far as the easements come within what are called natural, like the flow of water in a natural stream from one to the other, or that class which grows out of locality, like the discharge of rain or surface water from a higher upon a lower field, they would revive in respect to each other, the moment the owner- [* 524] ship and possession of the two parcels had passed to different hands, because, as has been heretofore shown, they exist jure naturæ, and are incidents of property in the several parcels.1 3. The same would be true of such easements as are necessary to the enjoyment of the one parcel or the other, as in the case of ways; though by making the new grant in such a case, it is rather the creation of a new right of way by implication, than the reviving of a former one, and ways thus created are appurtenant only so long as the necessity continues.2 4. This subject, it will be perceived, assumes two things: first, that the owner has done nothing while holding both estates to destroy the existence of what was once an easement, like cutting off the pipe of an aqueduct, for instance; and, second, that, in making his conveyance of the one or the other estate, he makes no specific reference in his deed to what is claimed as the easement. From this arises the question which is now under consideration, What must be the situation of the two estates, and what the character of the easement, to have a simple conveyance of the one estate or the other revive and pass it, or reserve it as an appurtenant to the dominant estate? 5. In the first place, in order to pass with an estate, the easement in the case supposed must be an apparent one. Among the cases illustrative of this, that of Seibert v. Levan may be referred to, where the owner of two closes, upon one of which he had a mill, and upon the other the dam and pond of water by which it was operated, conveyed the latter, it was held that his grantee 1 Dunklee v. Wilton R.R. Co., 4 Foster, 489, 497; Sury v. Pigot, Poph. 166. 2 Grant v. Chase, 17 Mass. 443, 448; Jenk. Cent. Case, 37; Pomfret v. Ricroft, 1 Wms. Saund. 323, n. 6. took it subject to the servitude of the dam and right of flowing a pond for the use of the dam.1 [* 525] * Another would be the case of two mills upon the same stream belonging to the same owner, so arranged that the water of the pond of the lower mill flows back upon the wheel of the upper one, if he were to convey the upper mill, describing the premises as so much land with a mill and privilege, the purchaser would take it subject to the effect of the lower works upon its operation.2 The same principle has been extended to cases of lights, air, gutters, eaves' drip, and the overhanging of the eaves of a house upon the adjoining estate, where one or both these adjoining estates are conveyed by a common owner, though in the matter of light and air it should be remembered, the common law does not prevail in several of the United States.3 So the doctrine has been applied to the case of one parcel of land drained through another by an artificial ditch, cut from the former through the latter, to a canal into which the water was discharged. These two parcels had come to the same owner by different purchasers, and of course, while held by him, this right of drain became extinct as an easement. But upon his conveying the first-mentioned parcel separately, it was held that the right of drain as an easement revived, and passed as appurtenant to the parcel thus conveyed.4 A like principle is also said to apply to the case of a way, not strictly of necessity, but which has been used from one parcel across another to a church or a mill and the like, both parcels having been owned by the same persons. If he should convey the intermediate close, there would be at once an easement [*526] of way from the other close to the church * or mill, across it, without any words of grant conveying the same in terms.5 1 Seibert v. Levan, 8 Penn. St. 383, 387. 2 Cary v. Daniels, 8 Metc. 466, 480, 482; Hazard v. Robinson, 3 Mason, 172. 3 Robins v. Barnes, Hob. 131; ante, p. 44; Nicholas v. Chamberlain, Cro. Jac. 121; ante, p. 392. Ferguson v. Witsell, 5 Rich. 280. See Shaw v. Ethridge, 3 Jones (Law), 300; Dodd v. Burchell, 1 H. & Colt. 121. Seibert v. Levan, 8 Penn. St. 383; Sury v. Pigot, per Doddridge, J., Poph. 166, 172; Jordan v. Atwood, Owen, 121; 1 Rolle, Abr. 936; Woolr. Ways, 71; 6. It may be stated here that the same rule applies as to reviving an easement by conveying one of the estates, whether the parcel conveyed be the dominant or servient estate. If it be the dominant, the easement over the other passes as appurtenant to it. If it be the servient, the easement is created in favor of the dominant remaining in the grantor's hands, by way of reservation. The authorities upon this point are Seibert v. Levan, above cited, and Dunklee v. Wilton Railroad,1 controverting if not overruling the doctrine of Burr v. Mills 2 and Preble v. Reed,3 which make a distinction between an easement being raised by a grant of the dominant estate, and the case of a reservation by the grantor of the dominant estate. The language of Jewett, C. J., in French v. Carhart, may probably be taken as a sound principle, that a "reservation should be construed in the same way as a grant by the owner of the soil of a like privilege. The sound and reasonable rule is, that whatever is necessary to the fair enjoyment of the thing granted or excepted, is incidentally granted or excepted." 4 7. It should be remembered, moreover, that in giving effect to a deed of one of two parcels, in respect to a way, for instance, nothing results from a general clause granting there with all ways appurtenant to the granted premises. When the two estates came to be united in the same ownership and possession, the way was thereby extinguished, and of course ceased to be any longer appurtenant, and could only be made so again by express grant. It was accordingly held, in James v. Plant, that, "where there [* 527] is a unity of seisin of the land and of the way over the land, in one and the same person, the right of way is either extinguished or suspended, according to the duration of the respective estates in the land and the way; and after such extinguishment, or during such suspension of the right, the way cannot pass as an appurtenant, under the ordinary legal sense of that word." 5 The same doctrine was applied to the case of an aqueduct from one parcel to another, the ownership of both estates having come Phillips v. Phillips, 48 Penn. 178, 186; 1 Jenk. Cent. Case, 37; Leonard v. Leonard, 2 Allen, 543. 1 Dunklee v. Wilton R.R. Co., 4 Foster, 489. Burr v. Mills, 21 Wend. 292. 3 Preble v. Reed, 17 Maine, 169. See also ante, p. 36; Guy v. Browne, F. Moore, 644; Nicholas v. Chamberlain, Cro. Jac. 121. to the same person, who subsequently conveyed the estate for whose benefit the aqueduct was designed, "with all appurtenances." 1 The last-mentioned case is cited to sustain the effect to be given to the word appurtenances in a grant in passing artificial easements with one of two estates, where the easement had been extinguished by unity of seisin; for it is not clear, to say the least, that the right of aqueduct in that case would not have passed as being an apparent continuous ease or benefit which one part of the joint estate had in the other at the time of the conveyance, upon the principle of other cases already cited. The grant of a house with appurtenances passes a conduit by which water is conducted to the house, and the grantee may enter upon the land through which it passes, and repair it at all proper times, independent of prescription or special grant.2 The doctrine that an easement, extinguished by unity of seisin of the estates, may not pass with one of them as an appurtenant, was held to apply in the case of a right of common.3 But where a right of common belonging to an estate by prescription was determined by the two estates being united in the ownership of the same person, it was held to revive by his conveying the dominant estate "with all rights of common heretofore used therewith." 4 And the rule, as laid down in the Digest upon the subject, is explicit in its terms: "Si quis ædes quæ suis ædibus servirent, cum emisset, traditas sibi accepit, confusa sublataque servitus est: et si rursus vendere vult, nominatim imponenda servitus est; alioquin liberæ veniunt." 5 [* 528] 8. But while the cases last cited serve to show that certain rights, though formerly united with an estate, will not, after becoming extinguished by unity of the two estates, revive or pass under the term appurtenant, they do not bear upon the main point intended to be illustrated in this part of the general subject, what will pass as an ease or benefit with one estate in Manning v. Smith, 6 Conn. 289. 3 Clements v. Lambert, 1 Taunt. 208. Wooledge v. Kingsmill, Cro. Eliz. 794. D. 8, 2, 30. See 3 Burge, Col. & F. Law, 446; Pardessus, Traité des Servitudes, 446. |