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Full text of "The law of real property and other interests in land"

UNIVERSITY 

OF CALIFORNIA 

LOS ANGELES 



SCHOOL OF LAW 
LIBRARY 



THE LAW 

OF 



T 



REAL PROPERTY 

AND 

OTHHK INTHRHSTS I\ LAND 



BY HERBERT THORNDIKE TIFFANY 

Author of "The Law of Landlord and Tenant." 



ENLARGED EDITION 

IX THREE VOLUMES 

VOLUME II 



cni(:.\(;c) 
CALLAGHAN AND COMPANY 
1920 



T 
T4473<e 

1^^ 



COPYRIGHT 1920 
BY 
HERBERT THORNDIKE TIFFANY. 



TABLE OF CONTENTS 



CHAPTEE XII. 

EASEMENTS. 
I. The Natube and Classes of Easements. 

§ 348. Nature of an easement. 
349. Licenses. 

(a) General considerations. 

(b) No formality necessary. 

(c) Scope of license. 

(d) Revocability of license. 

(e) Mode of revocation. 

(f) Termination otherwise than by revocation. 

(g) Effect of termination, 
(h) Assignment of license. 

§ 350. Easements in gross and appurtenant. 

351. Light and air. 

352. Waters and water courses. 

353. Artificial water courses and drains. 

354. Support of land. 

355. Support of buildings. 

356. Party walls. 

357. Partition fences. 

358. Rights of way. 

359. Pews and burial rights. 

360. Miscellaneous easements. 

II. The Ckeatton of Easements. 

§ 301. Express grant. 

3.02. Express reservation or exception. 
363. "Implied" grant or reservation. 

(a) General considerations. 

(b) Of easement corresponding to pre-existing 

quasi easement. 

(c) Of easement of necessity. 
§ 364. Prescription. 

365. Acquisition under statute. 

366. Estoppel. 

(V) 



77B92J 



VI 



Real Peopekty. 



(a) By reference to non-existent way. 

(b) By reference to plat. 

(c) By representation or acquiescence. 

III. Rights of User. 

§ 367. Easements created by grant. 

368. Easements created by prescription. 

369. Effect of change in dominant tenement. 

370. Alterations and repairs. 

371. Interference with user. 

IV. Extinction of Easements. 

§ 372. Cessation of purpose of easement. 

373. Excessive user of land. 

374. Unity of possession or title. 

375. Application of land to public use. 

376. Express release. 

377. Abandonment. 

378. Executed license. 

379. Adverse user of land. 

380. In favor of innocent purchasers. 



CHAPTER XIII. 



381 
382 

OOO 

384 
385 
386 
387 



PROFITS A PRENDRE. 

General considerations. 

Rights in gross and appurtenant. 

Rights of common. 

Rights of pasture. 

Mineral rights. 

The creation of rights. 

Apportionment and extinction. 



CHAPTER XIV. 



§ 388 
389 
390 
391 
392 

QQO 



COVENANTS RUNNING WITH THE LAND. 

General considerations. 
The running of benefits. 
The running of burdens. 
Privity of estate. 
The nature of the covenant. 
Party wall agreements. 



Table of Contents. vii 



CHAPTER XV. 

RESTRICTIONS ENFORCEABLE IX EQUITY. 

§ 394. General considerations. 

395. Character of agreement. 

396. Theory of enforcement. 

3S7. Persons subject to restriction. 

398. Notice. 

399. Persons entitled to enforce restriction. 

400. Existence of general plan. 

401. Defenses to enforcement. 



CHAPTER XVI. 

RENT. 

402. The nature of rent. 

403. What may be reserved as rent. 

404. Classes of rents. 

405. Payments which are not properly rent. 

406. The reservation of rent. 

407. Transfer of rights and liabilities. 

408. Death of person entitled. 

409. Time at which rent is due. 

410. Apportionment as to time. 

411. Amount of the rent. 

412. Apportionment as to amount. 

413. Extinction or suspension of rent. 

414. Actions for rent 

415. Distress for rent. 

416. Lien for rent. 



CHAPTER XVII. 

PUBLIC RIGHT'S. 

§ 417. Highways. 

418. Parks, squares and commons. 

419. Customary rights. 

420. Rights of fishing. 

421. Rights of navigation. 



viii Beal Property. 

Part Five. 
the tkansfer of rights in land. 

CHAPTER XVIII. 

TRANSFER BY THE GOVERNMENT. 

§ 422. The nature of the government title. 

423. Grants by the United States. 

424. Grants by the States. 

425. Spanish and Mexican grants. 

426. Patents. 

CHAPTER XIX. 

VOLUNTARY TRANSFER INTER VIVOS. 

I. Classes of Conveyances. 

§ 427. Conveyances at common law. 

428. Conveyances operating under the Statute of Uses. 

429. Conveyances employed in the United States. 

430. Quitclaim deeds. 

431. Surrender. 

432. Conveyances failing to take effect in the manner 

tended. 

II. Form And Essentials Of A Conveyance. ^ 

§ 433. General considerations. 

434. Designation of the parties. 

435. Words of conveyance. 

436. Exceptions and reservations. 

437. Rules of construction. 

438. Consideration. 

439. Realty of consent. 

440. Effect of alterations. 

III. Description Of The Land. 

§ 441. General considerations. 

442. Description by government survey. 

443. Reference to plat. 

444. Monuments, courses, and distances. 

445. Boundaries on water. 

446. Boundaries on ways. 



Table of Contents. ix 

§ 447. Sufficiency of description. 

448. Appurtenances. 

IV. Covenants For Title. 

§ 449. General considerations. 

450. Covenant for seisin. 

451. Covenant for right to convey. 

452. Covenant against incumbrances. 

453. Covenants for quiet enjoyment and of warranty 

454. Covenant for further assurance. 

455. The measure of damages. 

456. Covenants running with the land. 

V. ExECUTiox OF The Conveyance. 

§ 457. Signing. 

458. Sealing. 

459. Witnesses. 

460. Acknowledgment. 

461. Delivery. 

462. Conditional delivery. 

463. Acceptance. 

464. Execution by agent. 

465. Effect of execution — Subsequent cancellation or return. 



CHAPTER XX. 

TRANSFER BY WILL. 

466. General considerations. 

467. Will and conveyance distinguished. 

468. Signing by testator. 

469. Acknowledgment and publication. 

470. Competency of witnesses. 

471. Attestation and subscription. 

472. Holographic and nuncupative wills. 

473. Undue influence. 

474. Lapsed and void devises. 

475. The revocation of a will. 

476. Children or issue omitted from will. 

477. Revival of will. 

478. Republication. 



Real Peopeety. 



CHAPTER XXI. 

DEDICATION. 

479. Purposes for which dedication may be made. 

480. No particular beneficiary or beneficiaries. 

481. Who may effect dedication. 

482. Intention to dedicate. 

483. Acceptance. 

484. Dedication distinguished from estoppel. 

485. Qualified and conditional dedication. 

486. Effect of dedication. 



CHAPTER XXII. 

INTESTATE SUCCESSION. 

487. General considerations. 

488. Descent to issue. 

489. Surviving consort as heir. 

490. Parent as heir. 

491. Descent to collateral kindred. 

492. Kindred of the half blood. 

493. Representation. 

494. Ancestral lands. 

495. Illegitimate children. 

496. Unborn children. 

497. Adopted children. 

498. Advancements. 

499. Disinheritance. 



CHAPTER XXIII. 

ADVERSE POSSESSION OF LAND. 

500. General considerations. 

501. Actual and visible possession. 

502. Exclusiveness of possession. 

503. Hostility of possession. 

504. Necessity of claim of title. 

505. Mistake in locating boundary. 

506. Necessity of right of action. 

507. Interruption of running of statute. 



Table of Contents. xi 

§ 508. Tacking. 

509. Personal disabilities. 

510. Exception in favor of the sovereign. 

511. Effect as vesting and divesting title. 

512. Extent of possession. 

513. Particular relations. 

(a) Landlord and tenant. 

(b) Trustee and cestui que trust. 

(c) Licensor and licensee. 

(d) Principal and agent. 

(e) Grantor and grantee. 

(f) Vendor and vendee. 

(g) Life tenant and remainderman, 
(h) Cotenants. 

(i) Mortgagor and mortgagee. 

(j) Mortgagor and foreclosure purchaser. 

(k) Surviving spouse and heirs. 

(1) Parent and child. 

(m) Husband and wife. 



CHAPTER XXIV. 

PRESCRIPTION FOR INCORPOREAL THINGS. 

514. General considerations. 

515. Restrictions on application of doctrine. 

516. Who may acquire right by prescription. 

517. What rights may be acquired by prescription. 

518. Actual user necessary. 

519. Adverse character of user. 

520. Necessity of claim of right. 

521. Necessity of notice to landowner. 

522. Necessity of exclusive user. 

523. Necessity of peaceable user. 

524. Necessity of right of action. 

525. Continuity of user. 

52C. Cessation of adverse character. 

527. Interruption by landowner. 

528. Protests and interference by landowner. 

529. Tacking. 

530. Personal disabilities. 

531. Nature and extent of prescriptive right. 

532. Reciprocal prescriptive rights. 

533. Prescription for highways. 

(a) General considerations. 



xii Keal Property. 

(b) User by public necessary. 

(c) Adverseness of user. 

(d) Necessity of claim of right. 

(e) Necessity of notice of user. 

(f) Continuity of user. 

(g) Width of highway." 



CHAPTER XXV. 

ACCRETION. 

534. General considerations. 

535. As rule of law or rule of construction. 

536. Applicable only to land above water. 

537. Sudden and perceptible changes. 

538. Accretion artificially produced. 

539. Land appearing in place of land disappearing. 

540. Accretions subject to existing incumbrances. 

541. Vested right in future accretions. 

542. Accretions to island. 

543. Apportionment of accretions. 

544. Formation of new islands. 



CHAPTER XXVl. 

ESTOPPEL. 

§ 545. Assertion of after acquired title. 

(a) General considerations. 

(b) Character of conveyance. 

(c) Necessity and character of covenants. 

(d) Cases to which doctrine inapplicable. 

(e) Persons bound by the estoppel. 
§ 546. Estoppel by representation. 

547. Improvements by oral grantee. 



CHAPTER XXVII. 



ESCHEAT AND FORFEITURE. 



§ 548. Escheat. 
549. Forfeiture. 



Table of Contents. xiii 



CHAPTER XXVIII. 

TRANSFER UNDER JUDICIAL PROCESS OR DECREE. 

§ 550. Sales and transfers under execution. 

551. Sales in equity at the instance of creditors. 

552. Sales of decedent's lands. 

553. Sales of lands of infants and insane persons. 

554. Sales and transfers for purpose of partition. 

555. Decrees conferring title. 

556. Adjudications of bankruptcy. 



CHAPTER XXIX. 

TRANSFER FOR NONPAYMENT OF TAXES. 

§ 557. Character of title acquired. 

558. Judgment for taxes. 

559. Forfeiture to state. 

560. Remedial legislation. 



CHAPTER XXX. 

APPROPRIATION UNDER EMINENT DOMAIN. 

§ 561. The power to appropriate. 

562. Rights subject to appropriation. 

563. Mode of appropriation 

564. Time of passing of title. 

565. Cessation of public use. 



CHAPTER XXXI. 

PRIORITIES, NOTICE AND RECORDING. 

566. Priorities apart from recording acts. 

(a) As between legal interests. 

(b) As between legal and equitable interests. 

(c) As between equitable interests. 

567. The recording acts. 



xiv Real Proppzktv. 

(a) General considerations. 

(b) Instruments capable of record. 

(c) Unauthorized record of instrument. 

(d) Instruments not in chain of title. 

(e) Instruments executed prior to acquisition of 

title. 

(f) Instruments executed after apparently part- 

ing with title. 

(g) Instruments recorded after parting with title, 
(h) What constitutes recording. 

(i) Time allowed for recording, 
(j) Mistakes by recording officer, 
(k) Index to records. 

(1) Persons affected with notice by record, 
(m) Persons entitled to assert failure to record. 
§ 568. Notice as substitute for recording. 

569. Information putting on inquiry. 

570. Notice to agent. 

571. Notice from possession. 

(a) General considerations. 

(b) Character of the possession. 

(c) Possession consistent with record title. 

(d) Cotenant in possession. 

(e) Joint possession or occupation. 

(f) Possession by tenant under lease. 

(g) Continued possession by grantor. 

§ 572. Notice from statements in instruments of title. 

573. Actual and constructive notice. 

574. Purchasers for value. 

(a) Valuable consideration. 

(b) Pre-existing debt. 

(c) Adequacy of consideration. 

(d) Notice before payment. 

(e) Notice after part payment. 

(f) Payment by note. < 

(g) Payment without acquiring legal title. 

§ 575. Purchasers with notice from purchasers without notice. 

576. Purchasers without notice from purchasers with notice. 

577. Purchasers at execution sales. 

578. Burden of proof. 

579. Lis pendens. 



REAL PROPERTY 



CHAPTER XII. 



EASEMENTS. 

I. The Nati-re and Classes of Easements. 

§ 348. Nature of an easement. 
349. Licenses. 

(a) General considerations. 

(b) No formality necessary. 

(c) Scope of license. 

(d) Revocability of license. 

(e) Mode of revocation. 

(f) Termination otherwise than by revocation. 

(g) Effect of termination, 
(h) Assignment of license. 

§ 350. Easements in gross and appurtenant. 

351. Light and air. 

352. Waters and water courses. 

353. Artificial water courses and drains. 

354. Support of land. 

355. Support of buildings. 

356. Party walls. 
S57. Partition fences. 

358. Rights of way. 

359. Pews and burial rights. 

360. Miscellaneous easements. 

II. The Creation of Easements. 

§ 361. Express grant. 
3C2. Express reservation or exception. 
363. "Implied" grant or reservation. 

(a) General considerations. 

(b) Of easement corresponding to pre-existing 

quasi easement. 

(c) Of easement of necessity. 

2R.P.-1 (11^') 



1198 Heal. Property. [§ 348 

§ 364. Prescription. 

365. Acquisition under statute. 

366. Estoppel. 

(a) By reference to non-existent way. 

(b) By reference to plat. 

(c) By representation or acquiescence. 

III. Rights of Useb. 

§ 367. Easements created by grant. 

308. Easements created by prescription. 

309. Effect of change in dominant tenement. 

370. Alterations and repairs. 

371. Interference with user. 

IV. Extinction of Easements. 

§ 372. Cessation of purpose of easement. 

373. Excessive user of land. 

374. Unity of possession or title. 

375. Application of land to public use. 

376. Express release. 

377. Abandonment. 

378. Executed license. 
3.79. Adverse user of land. 

380. In favor of innocent purchasers. 

I. The Nature and Classes of Easements. 

§ 348. Nature of an easement. Aii easement in- 
volves primarily the privilege of doing a certain class 
of act on or to the detriment of another's land, or a 
right against another that he refrain from doing a 
certain class of act on or in connection mth his own 
land, the holder of the easement having, as an integral 
part thereof, rights against the members of the commu- 
nity generally that they shall not interfere with the 
exercise or enjoyment of the easement. 

An easement, it has been said, never involves any 
active duty upon the owner of the land subject to the 
easement, his duty being merely the passive one, either 
of not interfering with a certain class of acts by the 
holder of the easement, or of himself refraining from 



§ 348] 



Easements. 1199 



a certain class of acts.i Occasionally, however, an 
interest analogous to an easement, involving a duly 
of an active character upon the owner of land, has been 
recognized, such an interest being sometimes referred to 
as a "spurious easement." 

So there may be an active duty, in the nature of 
an ersement, to maintain a fence,^ and it seems that 
there may be imposed, upon the owner of land subject 
to an easement, an active duty to make repairs,^'^ though 
this is most unusual.^ In Massachusetts, there has even 
been recognized an obligation, not contractual in charac- 
ter, to contribute to the cost of the maintenance of a 

dam.'' 

Easements are sometimes divided into affirmative 
and negative. An affirmative easement is one which au- 
thorizes the doing of acts which, if no easement existed, 
would give rise to a right of action, while a negative 
easement is one the effect of which is not to authorize 
the doing of an act by the person entitled to the easement, 
but merely to preclude the owner of the land subject 
to the easement from the doing of an act which, if no 
easement existed, he would be entitled to do. In other 
words, an affirmative easement involves the creation 
of a privilege, while a negative easement involves the 
withdrawal of a privilege.'' As examples of affirmative 
easements may be mentioned a right of way, a right to 
discharge water on another's land, and a right to main- 
tain an erection thereon, while a right to have light pass 

1. Macclesfield Highway Board Co. v. Staples, 164 Mass. 319, 29 
V. Grant, 51 L. J. Q- B. 357; Tay- L. R. A. 500, 41 N. E. 441, tHree 
lor V. Whitehead, Dougl. 716; judges dissenting. See the crit- 
Chauntler v. Robinson, 4 Exch. icism of this case in 9 Harv. Law 
;^g3 Rev. at p. 352. 

2. Post § 357. 7. See Professor Wesley N. Hloh- 
3-4. Rider v. Smith, 3 Term. field's article, 27 Yale Daw Jour- 
Rep. 766; 1 Wms. Saund. 322c; nal, at pp. 71, 72 in which the 
Gale, Easements (8th Ed.) 487. nature of an easement is well ex- 

5. Post, § 370. plained. 

6. Whittenton Manufacturing 



1200 Real Property. [§ 348 

to one's building over another's land, and a right to 
have one's building supported by such land, may be 
mentioned as examples of negative easements. Affirma- 
tive easements are of much the more frequent occur- 
rence.^ 

It is quite frequently stated that one cannot have 
an easement in his own land, and this is no doubt ap- 
proximately true. That is, if one has, as owner of 
land, the right of possession, any use which he makes 
thereof he makes by virtue of his ownership, and not 
as having an easement therein. But it may happen 
that he is an owner of land without having the right 
of possession, as for instance, when he has an estate 
in reversion or remainder. In such a case he may have 
an easement in the land, although he is, in a sense, an 
owner of the land. So one who has an undivided in- 
terest in land, a cotenant, although he has rights of 
ownership in the land, may also have an easement 
therein as against his cotenant 's undivided interest in 
the land.^ And one may, as cotenant of certain land, 
have an easement in land owned by him in severalty.^" 

It not infrequently occurs that two or more persons 
have, as appurtenant to distinct pieces of land owned 
by them, exactly similar easements in a single piece of 
land. For instance, one who owns several adjoining 
lots or parcels of ground may, in conveying them to 
different persons, grant to each of such persons a right 
of way in an alley, or over some land retained by him.^^ 
The various persons thus entitled to similar easements 

8. See Gale, Easements (8tli Goralski v. Kostuski, 179 111. 177, 
Ed.) 22. 70 Am. St. Rep. 98, 53 N. E. 720; 

9. Reed v. West, 16 Gray Whitelaw v. Rodney, 212 Mass. 
(Mass.) 284; Thompson v. Snyder, 540, 111 S. W. 560; City Club of 
14 N. Max. 403, 94 Pac. 1014. Auburn v. McGeer, 198 N. Y. 160, 

10. Bradley's Fish Co. v. Dud- 91 N. E. 539, 92 N. E. 105; Ailes 
ley, 37 Conn. 136. v. Hallam, 69 W. Va. 305, 71 S. E. 

11. See e. g. Goodwin v. Bra- 273. 
gaw, 87 Conn. 31, 80 Atl. 668; 



^ 349] Easements. 1201 

are sometimes referred to as tenants in common of an 
easement, but such an expression is inaccurate. If 
the right of user vested in one person is appurtenant 
to one tract, and the right of user vested in another 
person is appurtenant to another tract, there are two 
distinct rights of user, two easements, and not one ease- 
ment. It is only when the two persons have an ease- 
ment appurtenant to land of which they are tenants in 
common that they can, with any degree of accuracy, be 
said to be tenants in common of the easement. 

Easements distinguished from other rights. 



Natural rights^- are, as operating in restriction of the 
use of another's land, occasionally referred to as 
easements. Such rights are not, however, as are ease- 
ments, primarily rights as regards another's land, but 
are merely rights incident to the ownership of one's 
own land.^" 

An easement is to be distinguished from a profit 
a prendre, which involves a power in the person en- 
titled thereto of acquiring, by severance and removal 
from another's land, a part of the soil thereof, or some- 
thing growing or subsisting in the soil.^^ 

An easement is to be disting-uished from a license, 
and the privilege created by a license. The nature and 
characteristics of a license in regard to land constitute a 
subject as to which there have been numerous decisions 
and much discussion. The following section will be 
devoted to a consideration of tlie subject of licenses. 

§ 349. Licenses. (a) General nature. A license 

in the law of land, is oi'dinarily a permission merely to 
do something on or to the detriment of the land of the 

12. Ante, chapter 11. 98 Cal. 161, 21 L. R. A. 593, 35 

13. See, as to the distinction, Am. St. Rep. 163, 32 Pac. 976; 
Backhouse v. Bonomi, 9 H. L. Cas. Scriver v. Smith, 100 N. Y. 471, 
503; Pine v. City of New Yorlt, W.', Am. Rop. 224, 3 N. E. 675. 

112 Fed. 98; Gray v. McWilliams, 14. /'"••</, c. 13. 



1202 Real Property. [§ 349 

giver of the license, the licensor. Occasionally it is a 
permission to interfere with an easement or profit 
a prendre belonging to the licensor. It creates a 
privilege in favor of the licensee. A license, it has been 
said, "passeth no interest, nor alters or transfers prop- 
erty in anything, but only makes an action lawful which 
without it, had been unlawful; as, a license * * * 
to hunt in a man's park, to come into his house, are 
only actions which, without license, had been unlaw- 
ful. "^^ 

In so far as an easement involves, as it ordinarily 
does, the privilege of doing or not doing a certain class 
of act on or in connection with another 's land, there is a 
superficial resemblance between an easement and the 
privilege created by a license. The distinction between 
such an easement and a license privilege lies primarily ^® 
in the fact that the licensee has a privilege and nothing 
more, while the holder of an easement has not only a 
privilege but also rights against the members of the 
community in general, including the owner of the land, 
that they refrain from interference with the exercise 
or enjoyment of the privilege. ^'^ That a licensee, as 
such, has no right of action against a third person ob- 
structing his exercise of the license privilege is, it is 
conceived, beyond question, ^^ in spite of occasional 

15. Thomas v. Sorrel, Vaughan, we give to the indefinite term 

351; Wood V. Leadbitter, 13 Mees. & 'interest" the meaning of any 

W. 837. See, to the same effect, advantage reoognized by the law. 

Cook V. Stearns, 11 Mass. 533, 16. See Professor Hohfield's 

480; Sterling v. Warden, 51 N. admirable statement in this re- 

H. 217, 12 Am. Rep. 80; Wiseman gard, in 27 Yale Law Journal at 

V. Lucksinger, 84 N. Y. 31, 38 p. 66. 

Am. Rep. 479; Foster v. Brown- 17. Post, § 371. 

ing, 4 R. I. 47, 67 Am. Dec. 505; 18. iSee Whaley v. Laing, 2 

Thoemke v. Fiedler, 91 W^s. 386. Hurl. & N. 476, 3 Hurl. & N. 675; 

The statement that a license Hill v. Tupper, 2 Hurl. & C. 121; 

"passeth no interest," is ques- per Bramwell, B., Stockport 

tioned by Professor Hohfield (See Water Works Co. v. Potter, 'A 

27 Yale Law Jour, at p. 95) and Hurl. & C. 300; Heap v. Hartley, 

properly so, it would seem, if 42 Ch. Div. 461; Clapp v. Boston, 



§ 349] 



Easements. 



1203 



decisions to the contrary.^^ That lie has no right of ac- 
tion against the lando^\^ler himself by reason of such 
an obstruction by the latter, is involved in the doctrine 
that a license is revocable and may be revoked by an 
act on the part of the licensor indicating an intention to 

revoke.^" . . 

A license may be to do any of an almost infinite 
variety of things on another's land. Thus, one may 
have a license to flood land,^^^ to erect buildings or other 
structures thereon,^! ^^ pagg on the land," to maintain 
a ditch,^^ to cut timber,^-' to use land for railroad 



133 Mass. 367; Fletcher v. Liv- 
ingston, 153 Mass. 388, 26 N. E. 
1001; Per Loring, J., in Walker 
Ice Co. V. American Steel & Wire 
Co., 185 Mass. 463, 70 N. E. 937; 
Elliott V. Mason, 76 N. H. 229, 81 
Atl. 701. 

"If a so called license does oper- 
ate to confer an exclusive right 
capable of being protected against 
a stranger, it must be that there 
is more than a license, namely 
the grant of an interest or ease- 
ment." Pollock, Torts (6th Ed.) 
367. 

19. Case v. Weber, 2 Ind. 108, 
is to the effect that one having 
a license to flow water through 
another's land has a right of 
action against a third person 
who obstructs such flow. In Paul 
V. Hazleton, 37 N. J. Law, 106, 
and Miller v. Greenwich, 62 N. J. 
Law 771, 42 Atl. 735, a right of 
action in favor of a licensee 
against a third person was sus- 
tained, on the theory that the 
licensee had, in those cases, the 
exclusive possession of the land, 
or of a part thereof. But a mere 
licensee never has, it seems, pos- 
session of the land. London & 



N. "W. Ry. Co. V. Buckraaster, L. 
R. 10 Q. B. 70; Taylor v. Cald- 
well, 3 Best & S. 826; "Wells v. 
Kingston-upon-Hull, L. R. 10 C. 
P. 402; Lightwood, Possession of 
Land, 19. One who has posses- 
sion of land is a tenant, not a 
licensee. 1 Tiffany, Landlord & 
Ten, § 7. If a licensee did have 
possession, his right of action 
against a third person would be 
based, not on his license, but on 
his possession, and the existence 
of the license would be immate- 
rial as against others than the 
licensor. 

20. i'ost, § 349(d). 

20a. Woodward v. Seely, 11 
111. 157, 50 Am. Dec. 445. 

21. Crosdale v. Lanigan, 129 
N. Y. 604, 26 Am. St. Rep. 551; 
Malott V. Price, 109 Ind. 22; 
Eckert v. Peters, 55 N. J. Eq. 379, 
36 Atl. 49L 

22. Forbes v. Balenseifer, 74 
111. 183. 

23. Thoemke v. Fiedler, 91 
Wis. 386. 

24. Callen v. Hilty, 14 Pa. St. 
286. See cases "»'(", § 262, note 
96. 



1204 Eeal Property. [§ 349 

purposes.^^ A very common form of license is a 
ticket of admission whereby one is permitted to enter 
on another's land to witness a spectacle, or for some 
similar purpose.-*^ A contract of lodging also, giving 
not an exclnsive right to a part of the premises, but 
merely a right to enter thereon and use them for 
certain purposes, is in the nature of a license, and not 
a lease.-" Likewise, the permission, generally tacit, 
given to an employee or other person having business 
with the owner of land, to enter on the laud for the 
purpose of transacting* such business, creates the 
relation of licensor and licensee.^'^ 

(b) No formality necessary. No formality is 

necessary to a license. It may be in writing or oral,^' 
or may be implied from the relations of the parties, or 
from the conduct of the landowner, as when he indicates 
an assent to the doing of certain acts on his land.-'^' 
So, a person, by opening a place of business, licenses 
the public to enter therein for the purpose of transact- 

25. Beck v. Louisville, N. O. works Co. v. Great Northern Ry. 
& T. R. Co., 65 Miss. 172; Har- Co., 21 Mont. 487, 54 Pac. 963; 
low V. Marquette, H. & O. R. Co., Wilkins v. Irvine, 33 Ohio St. 
41 Mich. 336. 138; Pursell v. Stover, 110 Pa. 

26. Wood V. Leadbitter, 13 St. 43, 20 Atl. 403; Clark v. Glid- 
Mees. & W. 838; McCrea v. Marsh, den, 60 Vt. 702, 15 Atl. 358; Bay 
12 Gray (Mass.) 211. See 14 View Land Co. v. Ferguson, 53 
Harv. Law Rav. 455. Meisner v. Wash. 323, 101 Pac. 1093; Lock- 
Detroit B. I. & W. Ferry Co., 154 hart v. Geir, 54 Wis. 133, 11 N. 
Mich. 545, 118 N. W. 14. W. 245. 

27. See White v. Maynard, 111 30. Occum Co. v. A. & W. 
Mass. 250; Wilson v. Martin, 1 Sprague Mfg. Co., 34 Conn. 529; 
Denio (N. Y.) 602; 1 Tiffany, Cutler v. Smith, 57 111. 252; 
La.idlord & Ten., § 8. Noftsger v. Barkdoll, 148 Ind. 531, 

28. Merriam v. City of Meri- 47 N. E. 960; Fischer v. John- 
den, 43 Conn. 173; Cutler v. Smith son, 106 Iowa, 181, 76 N. W. 658; 
57 111. 252. Harmon v. Harmon. 61 Ma. 222; 

29. Occum Co. v. A. & W. Fletcher v. Evans, 140 Mass. 241, 
Sprague Mfg. Co., 34 Conn. 529; 2 N. E. 837; Metcalf v. Hart, 3 
Owens v. Lewis, 46 Ind. 489, 15 Wyo. 513, 31 Am. St. Rep. 122, 
Am. Rep. 295; Great Falls Water- 31 Pac. 407. 



§ 349] 



Easements. 



1205 



mg business.'^ ^ And a license to do certain acts on 
land may occasionally be inferred from the owner's 
failure to object to the doing of such acts thereon."^^ 
One who sells to another things which are upon the 
land impliedly licenses the purchaser to come upon the 
land to get the chattels within a reasonable time.^^ 

(c) Scope of license. A license to do a particu- 



lar act necessarily invoh^es a license to do any other 
act essential thereto.'*^ A license is not, however, 
ordinarily construed as allowing an act other than that 
named unless it is so essential, and it has accordingly 
been decided that a license to place a structure or 
appliance on one's land does not authorize the licensee 
to jDlace there another structure or appliance in case 
the first is destroyed or becomes useless.""'^ In the 
case of a license to do some particular act, not con- 
tinuous in its nature, the act must be done within a 
reasonable time.'^^ 



31. Gowen v. Philadelphia Ex- 
change Co., 5 Watts & S. (Pa.) 
141; Cutler v. Smith, 57 111. 252. 
See Phillips v. Cutler, 89 Vt. 233, 
95 Atl. 487. 

32. Occuni Co. v. Sprague 
Mfg. Co., 34 Conn. 529; Noftsger 
V. Barkdoll, 148 Ind. 531, 47 N. 
E. 960; Fischer v. Johnson, 106 
Iowa, 181, 76 N. W. 658; Smyr« 
V. Kiowa County, 89 Kan. 664, 
132 Pac. 181; Sheehan v. Kasper, 
41 Nev. 27, 165 N. W. 632; Dris- 
coll V. Newark, etc., Lime Co., 
37 N. Y. 637, 97 Am. Dec. 761; 
Ewing V. Rhsa, 37 Ore. 583, 82 
Am. St. Rep. 783, 52 L. R. A. 
140, 62 Pac. 790; Thayer v. Jar- 
vis, 44 Wis. 388; Metcalf v. Hart, 
3 Wyo. 513, 31 Am. St. Rep. 122, 
31 Pac. 407. See Phillips v. Cut- 
ler, 89 Vt. 233, 95 Atl. 487. 

33. Rogers v. Cox, 96 Ind. 157; 



Folsom V. Moore, 19 Me. 252; 
Barry v. Woodbury, 205 Me. 592, 
91 N. E. 902. And see post, § 
349(d), note 56. 

34. Clark v. Vermont, etc. R. 
Co., 28 Vt. 103; Sterling v. War- 
den, 51 N. H. 217, 12 Am. Rep. 
80, 22 Am. Dec. 410; Woodruff v. 
Beekman. 43 N. Y. Super. Ct. 282; 
Sayles v. Bemis, 57 Wis. 315, 15 
X. W. 432. 

35. Hall V. Boyd, 14 Ga. 1; 
Carleton v. Redington, 21 X. H. 
291; Cowles V. Kidder, 24 X. H. 
364, 57 Am. Dec. 287. But see 
Southwestern R. Co. v. Mitchell, 
69 Ga. 114. 

36. Parsons v. Camp, 11 Conn. 
525; Gilmore v. Wilbur, 12 Pick. 
(Mass.) 120, 22 Am. Dec. 410; 
Hill V. Hill. 113 Mass. 103, 18 
Am. Rep. 455. 



1206 



Real. Property. 



[§ 349 



The license will protect the agents or servants of 
the licensee if it is a license, not for pleasure, but to 
take profits from the land,"^" or if the act authorized is 
such as to render the employment of others to do it 
necessaiy or proper.^^ 

(d) Revocability of license. A license is, as 

a general rule, revocable at the pleasure of the licens- 
or,^^ and the fact that the license was embodied in 
an instrument under seal is immaterial in this regard.^*' 
The fact, moreover, that a consideration was paid for 
the license has more usually been regarded as not 



37. Wickham v. Hawker, 7 
Mees. & W. 63. 

38. Sterling v. Warden, 51 N. 
H. 217. 

In Fletclier v. Evans, 140 Mass. 
,241, 2 N. E. 837, it was held that 
if the heirs at law gave to the 
widow authority to erect a mon- 
ument upon the family burial lot, 
they in effect gave her authority 
to make any reasonable contract 
for a monument, and, by impli- 
cation, the right to give to the 
contractor a license to enter the 
lot to build a monument, and to 
remove it if it was not satisfac- 
tory or if she did not pay for it. 

39. Fentiman v. Smith, 4 East. 
107; Wood V. Leadbitter, 13 Mees. 
& W. 845; DeHaro v. United 
States, 5 Wall. (U. S.) 599, 18 L. 
Ed. 681; Profile Cotton Mills v. 
Calhoun Wlater Co., 189 Ala. 181, 
66 So. 50; Wheeler v. West, 71 
Cal. 126, 11 Pac. 871; Prince v. 
Case, 10 Conn. 375, 27 Am. Dec. 
675; Fluker v. Georgia Railroad 
& Banking Co., 81 Ga. 461, 2 L. 
R. A. 843, 12 Am. St. Rep. 328, 8 
S. E. 529; Wilmington Water 
Power Co. v. Evans, 166 111. 548, 



46 N. E. 1083; McBride v. Bair, 
134 Iowa, 661, 112 N. W. 169; 
Elswick V. Ramey, 157 Ky. 639, 
163 S. W. 751; Seidensparger v. 
Spear, 17 Me. 123, 35 Am. Dec. 
234; Rangeley v. Snowman, 115 
Me. 412, 99 Atl. 41; Cook v. 
Stearns, 11 Mass. 533; Morse v. 
Copeland, 2 Gray (Mass.) 302; 
Hodgkins v. Farrington, 150 Mass. 
19, 5 L. R. A. 209, 15 Am. St 
Rep. 168, 22 N. E. 73; Wbod v. 
Michigan (Air Line R, Co., 90 
Mich. 334, 51 N. W. 263; Johnson 
v. Skillman, 29 Minn. 95, 43 Am. 
Rep. 192, 12 N. W. 149; Sterling 
V. Warden, 51 N. H. 217, 12 Am. 
Rep. 80; Wiseman v. Lucksinger, 
•84 N. Y. 31, 38 Am. Rep. 479; 
Huff V. McCauley, 53 Pa. St. 206, 
91 Am. Dec. 203; Geiger v. Mc- 
Miahon, 31 S. Dak. 95, 139 N. W. 
958; Barsdale v. Hairston, 81 Va. 
764. 

40. Wood V. Leadbitter, 13 
Mees. & W. 838; Johnson v. Skill- 
man, 29 Minn. 95, 43 Am. Rep. 
192; East Jersey Iron Co. v. 
Wright, 32 N. J. Eq. 248; Jackson 
v. Babcock, 4 Johns. (N. Y.) 418; 
Smyth V. Brooklyn Union Ele- 



§ 349] 



Easements. 



1207 



affecting its revocability,"^ but there are to be found 
not infrequent statements or suggestions to the con- 
trary, that the payment of a consideration may, by 
itself' or in connection with the making of improve- 
ments, operate to prevent a revocation.^- How the 



vated R. Co., 121 App. Div. 282, 
105 N. Y. Su'pp. 601; Williamston 
etc. R. Co. V. Battle, 66 N. C. 

540. 

That the license is evidenced by 
an unsealed writing is a fortiori 
immaterial as regards the power 
of revocation. Lehigh & N. E. 
R. Co. V. Bangor & P. R. Co., 228 
Pa. 350, 77 Atl. 552. 

41. Wood V. Leadbitter, 13 
Mees. & W. 838; Workman v. 
Stephenson, — Colo. App. — , 144 
Pac. 1126; St. Louis National 
Stock Yards v. Wiggins Ferry Co., 
112 111. 384, 54 Am. Rep. 543; 
Minneapolis Mill Co. v. Minne- 
apolis & St. L. Ry. Co., 51 Minn. 
304, 53 N. \V. 639; Shippey v. 
Kansas City, 254 Mo. 1, 162 S. W. 
137; Dodge v. McClintock, 47 N. 
H. 383; Wiseman v. Lucksinger. 
84 N. Y. 31, 38 Am. Rep. 479; 
Eckerson v. Crippen, 110 N. Y. 
585, 1 L. R. A. 487, 18 N. E. 443; 
Herndon v. Durham & S. Ry. Co , 
161 N. C. 650, 77 S. E. 683; Bald- 
win V. Taylor, 166 Pa. 507, 31 
Atl. 250; Caledonian County Gram- 
mar School V. Kent, 86 Vt. 151, 
84 Atl. 26; Thoemke v. Fiedler, 91 
Wis. 386, 64 N. W. 1030. And see 
cases cited supra, this section, 
note 39. 

That this is so has been ire- 
quently decided in cases involv- 
ing the rights of the holder of 
a ticket to a theater or other 
place of entertainment. V. )d v. 



Leadbitter, 13 Mees. & W. 845; 
Marrone v. Washington Jockey 
Club, 227 U. S. 633, 57 L. Ed. 679. 
43 L. R. A. (N. S.) 691; McCrea 
V. Marsh, 12 Gray (Mass.) 21, 71 
Am. Dec. 745; Burton v. Scherpf, 
1 Allen (Mass.) 133, 79 Am. Dec. 
717; Meissner v. Detroit B. I. & 
W. Ferry Co., 154 Mich. 545, 19 
L. R. A. (N. S.) 872, 129 Am. 
St. Rep. 493, 118 N. W. 14; Shu- 
beri v. Nixon Co., 83 N. J. L. 
101, 83 Atl. 369; People v. Fynn, 
189 N. Y. 180, 82 N. E. 169; Pur- 
cell V. Daly, 19 Abb. N. Cas. 301; 
Taylor v. Cohn, 47 Ore. 538, 84 
Pac. 388; Horney v. Nixon, 213 
Pa. St. 20, 1 L. R. A. (N. S.) 1184, 
61 Atl. 1088, 110 Am. St. Rep. 
520; Buenzle v. Newport Amuse- 
ment Ass'n, 29 R. I. 23, 14 L. R. 
A. (N. S.) 1242, 68 Atl. 721; Bos- 
well V. Barnum & Bailey, 135 
Tenn. 35, 185 S. W. 692; W. W. 
V. Co. V. Black, 113 Va. 728, Ann. 
Cas. 1913E. 558, 75 S. E. 82. 

42. Sullivan Timber Co. v. 
Mobile, 124 Fed. 648; Hicks v. 
Swift Creek Mill Co., 133 Ala. 
411, 57 L. R. A. 720, 91 Am. St. 
Rep. 38, 31 So. 947; Alderman 
v. New Haven, 81 Conn. 137, 18 
L. R. A. (N. S.) 74, 70 Atl. 626; 
Hiers v. Mill Haven Co., 113 Ga. 
1002, 39 S. E. 444; McReynolds 
v. Harrigfield, 26 Idaho, 26, 140 
Pac. 1096; Morse v. Lorenz, 262 
111. 115, 104 N. E. 237; Nowlin 



1208 



Keal Property. 



r§ 349 



nature of the privilege created by a license can be 
altered in tliis or any other respect by reason of 
the fact that a consideration was paid for the license 
is not readily perceptible. But though the payment of 
a consideration should not render a license irrevocable, 
the fact that a consideration is paid for a grant of 
permission, either oral or in writing, to make a particu- 
lar use of one's land, is a circumstance tending to show 
tliat the grant of an easement and not a license merely 
was intended, in which case, as hereafter explained, 
the making of improvements on the faith of such in- 
valid grant will justify the interposition of a court of 
equity to protect the grantee.*'^ 

Improvements by licensee. The question 



whether, after the licensee has expended money in the 
making of improvements "on the faith of the license," 



V. Wliipple, 120 Ind. 596. 6 L. R. 
A. 159, 22 N. E. 669; Ruthven 
V. Farmers' Co-oporative Cream- 
ery Co., 140 Iowa, 570, 118 N. W. 
915; Kastner v. Benz, 67 Kan. 
486, 73 Pac. 67; Martin v. O'Brien, 
34 Miss. 21; Wright v. Brown, 
163 Mo. App. 117, 145 S. W. 518; 
Ewing V. Rhea, 37 Ore. 583, 52 
L. R. A. 140, 82 Am. St. Rep. 783. 
62 Pac. 790; Falls City Lumber 
Co. V. Watkins, 53 Ore. 212, 99 
Pac. 884; Salinger v. North 
American Woolen Mills, 70 W. 
Va. 151, 73 S. E. 312. 

In Hurst v. Picture Theatres, 
Ltd. (1915) K. B. 1, it was de- 
cided, by two judges against one, 
that the license involved in the 
sale of a ticket for a perform- 
ance could not be revoked. The 
m.ajority opinions appear to be 
based upon the theory that there 
was a contract, capable of en- 
forcement by injunction, that the 



ticket holder should be allowed 
to sit through the performance, 
which gave him an equitable in- 
terest in the land itself, which 
could not be withdrawn at will. 
Such an interest, if its existence 
be conceded, must be in the na- 
ture of an easement, and an 
easement to endure only for the 
period of a moving picture per- 
formance is, to say the least, a 
novelty. That the ticket holder 
has no interest in such a case, 
entitled to protection, see edito- 
rial notes in 13 Mich. Law Rev. 
at p. 401, 27 Harv. Law Rev. 495 
and article by J. C. Miles, Esq., 
31 Law Quart. Rev. 217. The de- 
cision is approved in editorial 
notes in 14 Columbia Law Rev. 
at p. 608; 26 Yale Law Journal, 
395. 

43. Post, this section, notes 
43-49. 



§ 349] 



Easements. 



1200 



that is, for the purpose of availing- himself of the li- 
cense, the license continues revocable as it was before 
such expenditure, has been the subject of a great num- 
ber of dicta and decisions. These may be broadly 
divided into two groups. Those in the one group are 
in terms that, after the licensee has made expenditures 
upon the strength of the license, a revocation of the 
license would involve a fraud upon him, which a court 
of equity, and occasionally a court of law, will not 
permit.^^ Those in the other group are to the opposite 



44. Davis v. Tway, 16 Ariz. 
566, L. R. A. IfllSE, 604, 147 Pac. 
750; Stoner v. Zucker. 148 Cal. 
516, 7 Ann. Cas 704. 113 Am. St. 
Rep. 301, 83 Pac. 808; Gyra v. 
Windier, 40 Colo. 366, 13 Ann. 
Cas. 841, 91 Pac. 36; Alderman 
V. New Haven, 81 Conn. 137, 18 
L. R. A. (N. S.) 74, 70 Atl. 626; 
Cook V. Pridgen, 45 Ga. 331, 12 
Am. Rep. 582; Cherokee Mills v. 
Standard Cotton Mills, 138 Ga. 
856, 76 S. E. 373 (statute) ; Mc- 
Reynolds v. Harrigfield, 26 Idaho, 
26, 140 Pac. 1096; Girard v. Le- 
high Stone Co., 280 111. 479, 117 N. 
E. 698; Ferguson v. Spencer, 127 
Ind. 66, 25 N. E. 1035; Joseph 
V. Wild, 146 Ind. 249, 45 N. E. 
467; Decorah Woolen Mill Co. v. 
Greer, 49 Iowa, 490; Hansen v. 
Farmers' Co-operative Creamery, 
106 Iowa, 167, 76 N. W. 652; Pat- 
terson V. City of Burlington, 141 
Iowa, 291, 119 N. W. 593; Kastner 
V. Benz, 67 Kan. 486, 73 Pac. 67; 
Smyre v. Kiowa County, 89 Kan. 
664, 132 Pac. 209; Cape Girar- 
deau & T. B. T. R. Co. V. St. 
Louis & G. Rwy. Co., 222 Mo. 
461, 121 S. W. 300; Great Falls 
Water works Co. v. Great North. 



Ry. Co., 21 Mont. 487, 54 Pac. 
?63; Arterburn v. Beard. 86 Neb. 
733, 126 N. W. 379. Raritai- 
Water Power Co. v. Veghte, 21 
N. J. Eq. 142; Van Horn v. Clark, 
56 N. J. Eq. 476, 40 Atl. 203; 
Polakoff V. Halphen. 83 N. J. Eq. 
126. 89 Atl. 996 (But soe, as to 
New Jersey, Lawrence v. Spring- 
er, 49 N. J. Eq. 289, 31 Am. St. 
Rep. 702, 24 Atl. 993); Lee v. Mc- 
Leod, 12 Nev. 280; Bowman v. 
Bowman, 35 Or. 279, 27 Pac. 546; 
Kelsey v. Bertram, 63 Ore. 563, 
127 Pac. 777; Rerick v. Kern, 14 
Serg. & R. (Pa.) 267; Pierce v. 
Cleland, 133 Pa. 189, 7 L. R. A. 
752, 19 Atl. 352; Butz v. Rich- 
land Twp., 28 S. Dak. 442, 134 N. 
W. 895 (dictum); Risien v. 
Brown, 73 Tex. 135, 10 S. W. 661 
(dictum); Clark v. Glidden, 60 
Vt. 702, 15 Atl. 358; Barre v. 
Ferry & Scribner, 82 Vt. 301, 73 
Atl. 574; Phillips v. Cutler, 89 
Vt. 233, 95 Atl. 487; Kent v. 
Dobqns, 112 Va. 586, 72 S. E. 139 
(semhle); Gustin v. Harting. 20 
Wyo. 1, 33 A. & E. Ann. Cas. 
1914C, 911, 121 Pac. 522. 

On this theory it has been de- 
cided that if two adjoining 



1210 



Eeal Property. 



[§ 349 



effect, that the making of improvements by a licensee 
is not ground for denying to the licensor the right of 
revocation which is otherwise incident to a license.^^ 



owners of land erect buildings 
together with an oral agreement 
as to the mutual use of stair- 
cases or hallways, each has in 
eitect a license, which cannot be 
withdrawn after the buildings 
have been constructed on the 
faith of the agreement. Clark v. 
Henckel (Md.), 26 Atl. 1039; 
Binder v. Weinberg, 94 Miss. 817, 
48 So. 1013; Cleland's Appeal, 133 
Pa. 189. 7 L. R. A. 752, 19 Atl. 
352. 

45. Hicks V. Swift Creek Mill 
Co., 133 Ala. 411, 91 Am. St. Rep. 
38, 57 L. R. A. 720, 31 So. 947; 
Howes V. Barmon, 11 Idaho, 64, 
69 L. R. A. 568, 114 Am. St. Rep. 
255, 81 Pac. 48 (dictum); St. 
Louis Nat. Stock Yards v. Wig- 
gins Ferry Co., 112 111. 384, 54 
Am. Rep. 243; Dwight v. Hayes, 
150 111. 273, 41 Am. St. Rep. 367, 
37 N. E. 218; Lambe v. Man- 
ning, 171 111. 612, 49 N. E. 509; 
Morse v. Lorenz, 262 111. 115, 104 
N. E. 237 (But see, as to Illinois, 
Ashelford v. Willis, 194 111. 492, 
62 N. E. 817) ; Moulton v. Faught, 
41 Me. 298; Hodgkins v. Farring- 
ton, 150 Mass. 19, 15 Am. St. 
Rep. 168, 5 L. R. A. 209, 22 N. 
E. 73; Nowlin Lumber Co., v. 
Wilson, 119 Mich. 406, 78 N. W. 
338; Minneapolis Mill Co. v. 
Minneapolis & St. L. Rwy. Co., 
51 Minn. 304, 53 N. W. 639 (But 
see as to Minnesota, dictum in 
St. John V. Sinclair, 108 Minn. 
274, 122 N. W. 164 ) ; Belzoni Oil 



Co. V. Yazoo & M. V. R. Co., 94 
Miss. 58, 47 So. 468 (But see, ae 
to Mississippi, Binder v. Wein- 
berg, 94 Miss. 817, 48 So. 1013 ) ; 
Great Falls Waterworks v. Great 
Northern Rwy. Co., 21 Mont. 487, 
54 Pac. 963; Archer v. Chicago 
M. &. St. P. Rwy. Co., 41 Mont. 
56, 137 Am. St. Rep. 692, 108 
Pac. 571; Houston v. Laffee, 46 
N. H. 505; Batchelder v. Hib- 
bard, 58 N. H. 269; Crosdale v. 
Lanigan, 129 N. Y. 604, 26 Am. 
St. Rep. 551, 29 N. E. 824; Rich- 
mond & D. R. Co. V. Durham & 
N. Ry. Co., 104 N. Car. 658, 10 S. 
E. 659; Rodefer v. Pittsburgh, 
etc., R. Co., 72 Ohio St. 272, 70 
L. R. A. 844, 74 N. E. 183; Yeager 
V. Tuning, 79 Ohio St. 121, 86 N. 
E. 657; Fowler v. Delaplaine, 79 
Ohio St. 279, 87 N. E. 260; Poster 
V. Browning, 4 R. I. 47; Nunnelly 
V. Southern Iron Co., 94 Tenn. 
397, 29 S. W. 361; Yeager v. 
Woodruff, 17 Utah, 361, 53 Pac. 
1045 (semble); Hathaway v. 
Yakima Water, etc., Co., 14 Wash. 
469, 53 Am. St. Rep. 874, 44 Pac. 
896; Rhoades v. Barnes, 54 Wash. 
145, 102 Pac. 884; Pifer v. 
Brown, 43 W. Va. 412, 49 L. R. 
A. 497, 27 S. E. 399; Thoemke 
V. Fiedler, 91 Wis. 386, 64 N. 
W. 1030; Huber v. Stark, 124 
Wis. 359, 109 Am. St. Rep. 937, 
102 N. W. 12; (But see, as to 
Wisconsin, McDougald v. New 
Richmond Roller Mills Co., 125 
Wis. 121, 103 N. W. 244; Water- 



§ 349] 



Easements. 1-1^ 



These latter cases are ordinarily based on tlie theory, 
firstly, that one who takes a license is presumed to 
know that, as a matter of law, a license is revocable, 
and consequently cannot assert that he was misled by 
the license into making improvements as if he had a 
more or less permanent interest in the land, and, 
secondly, that, in so far as the license is oral, as is 
usually" the case, the contrary view involves a violation 
of the Statute of Frauds, in allowing what is in etteet 
a permanent or quasi permanent interest m land to 
be created orally. A consideration of the question on 
principle would seem to lead to the conclusion that the 
two groups of decisions are not so discordant as at 
first sidit appears, and that the difference of view 
really centers about a question of the construction ot 
the license, so called, as to whether it was intended 
merely as a license, or as the grant of an easement, 
the privilege being in the former case subject to with- 
drawal in spite of the improvements, but not m the 
latter. In other words, it being generally recognized ^« *' 
that in the case of an oral gift of land, if the donee 
makes improvements on the faith of the gift, equity 
will enforce the gift, on the theor^^ of part performance 
or equitable estoppel, it necessarily follows that an 
oral gift of an easement or right of profit m the land 
Avill likewise be enforced in equity in case the donee 
makes improvements on the faith therof.'''' An at- 
tempted oral grant or '^agreement for" an easement, 
in return for a valuable consideration, will a fortiori be 
enforced in equity, if followed by improvements on the 
faith thereof, whether it be regarded for this purpose 

man v Norwalk, 145 Wis. 663, the fact that it was intended by 

130 N W 479.) ^^® owner of the land that the 

46-47. Post, § 547. user of his land should be per- 

48 But in Huber v. Stark, 121 manent was immaterial, unless 

Wis. 359. 109 Am. St. Rep. 937. there was a consideration for the 

102 N. W. 12, it was held that grant of permission. 



1212 B.EAL. Peoperty. [§ 349 

as an executory contract to convey an easement or as 
an attempt to grant an easement, invalid because oraL*** 
Applying the above considerations, if an oral per- 
mission to make a particular use of land is construed as 
an attempt to create an easement, that is, an interest 
in the land of a more or less permanent character, 
which is therefore invalid as not being in writing, the 
effect of the making of improvements on the faith 
thereof will be to create an equitable right in accord- 
ance with the intended gift or grant; while if such 
permission is merely a license, and not an attempt to 
create an easement, then it is properly revocable after 
as before the making of improvements. Accordingly, 
the decisions that a license cannot be revoked after the 
making of improvements on the faith thereof appear 
properly to involve merely the assertion of a rule of 
construction, that an oral permission to make a particu- 
lar use of land, which use is such that it will be neces- 
sary or desirable to make expenditures in order to avail 
oneself of the permission, is to be construed as an 
attempt orally to grant an easement in the land, which 
is absolutely invalid as a grant, but operates by way of 
equitable estopjjel in favor of the intended grantee if 
he subsecjuently makes expenditures on the assumption 
that he acquired an easement thereby, although, as a 
matter of fact, he originally acquired, by reason of 
the invalidity of the grant, merely a license. On 
the other hand, the decisions that a license can be re- 

49. See Flickinger v. Shaw, 87 v. Weinberg, 94 Miss. 817, 48 So. 

Cal. 126, 22 Am. St. Rep. 234, 1013; Lewis v. Patton. 42 Mont. 

11 L. R. A. 134, 25 Pac. 268; 528, 113 Pac. 745; Wiseman v. 

Legg V. Horn. 45 Conn. 415; St. Lucksinger, 84 N. Y. 31, 38 Am. 

Louis Nat. Stock Yards Co. v. Rep. 479; East India Company v. 

Wiggins Ferry Co., 112 lU. 384, Vincent, 2 Atk. 83; Devonshire 

54 Am. Rep. 243; Willoughby v. v. Eglin, 14 Beav. 530; Plimmer 

Lawrence. 116 in. 11, 56 Am. v. Wellington, L. R. 9 App. Cas. 

Rep. 758, 4 N. E. 356; Johnson 699; Mc:\Ianus v. Cooke, 35 Ch. 

V. Skillman, 29 Minn. 95, 43 Am. Div. 681. 
Rep. 192, 12 N. W. 149; Binder 



§ 349] Easements. 1213 

voked even after the making of improvements on the 
faith thereof appear properly to involve the assertion 
of a rule that permission to make a particular use of 
land is not to be construed as an intended grant of an 
easement, even though its enjoyment does involve the 
making of improvements hy the person to whom it is 
given. In accordance with this view, that the question is 
properly one of the construction of the language used 
in granting the permission, in connection with the 
character of the acts authorized and the necessity of 
expenditures to make the permission practically avail- 
able, are occasional decisions that if the license is ex- 
pressed to be revocable, or subject to the pleasure of 
the licensor, it may be revoked in spite of expenditures 
for improvements,^*^ as well as occasional suggestions 
that if the permission is granted for a named period it 
canot be revoked until the end of that period.''^ If 
permission to use "another's property is expressed to 
be revocable, it must necessarily be either a license 
merely, or the grant of an easement, subject to a power 
of revocation, while if it is granted for a named period, 
it cannot be intended as a license merely, but nmst he 
construed as a i>rant, or attempted grant, of an ease- 
ment. 

It h;is in one state been decided tliat wlicn a license 
to make a particular use of one's land is merely in- 
ferred from acquiescence in such use,"*- the making of 

50. Thompson v. Normanden, in spite of expenditures. Brower 

134 Iowa, 720, 112 N. W. 188; v. Wakeman. 88 Conn. 8, 89 Atl. 

Laughery Turnpike Co. v. .Mc- 913. 

Creary, 147 Ind. 526, 46 N. E. 51. St. Louis Nat. Stock Yards 

906; Kentucky Distilleries Ware- Co. v. Wiggins Ferry Co., 112 111. 

house Co. V. Warwick Co.. 166 384, 54 Am. Rep. 243: Baynard v. 

Ky. 651. 179 S. W. 611; Wood Every Evening Printing Co., 9 

V. Edes, 2 Allen (Mass.) 578; Del. Ch. 127, 77 Atl. 885; Adams 

Risien v. Brown, 73 Tex. 135, 10 v. Weir & Flagg (Tex. Civ. App.), 

S. W. 661; Hall v. Chaffee, 13 99 S. W. 726. 

Vt. 150. So if it is for one y;e^r 52. Ante, this section, note 27. 

only, it is revocable thereafter 
2. R. ?.— 2 



1214 Keal Peoperty. [§ 349 

improvements hj tlie Jicensee did not render the license 
irrevocable.^'' Such a view appears reasonable. There 
is evidently no attempted grant of an easement, and 
nothing on which the licensee can properly base an as- 
sumption that he has a permanent interest in the land, 
so as to justify his expenditure for improvements. 

There are occasional decisions or dicta that after 
a license has become irrevocable by reason of the 
•making of improvements thereunder or, as we would 
prefer to express it, after an attempted oral grant of 
an easement has been validated by such making of im- 
provements, the license privilege remains irrevocable, 
or the easement endures, only so long as the improve- 
ments originally made continue available for the pur- 
pose of its exercise.^'" This view appears to involve a 
failure to recognize the connection between the case 
referred to and the doctrine of part performance or 
equitable estoppel. There is no more reason that the 
privilege should in such case be restricted to the life 
of the improvements than that a decree specifically en- 
forcing a contract for the sale of land, based on the 
part performance involved in the making of improve- 
ments, should call for a conveyance of an estate to en- 
dure only as long as the improvements endure. 

Occasionally the courts have suggested or asserted 
that, in case the licensee has made improvements on 
the faith of the license, it can be revoked, but only if 
the licensee is placed in statu quo by reimbursement of 
the cost of such improvements.^* The propriety of this 

53. Shaw V. Prof itt. 57 Ore. 192, Clark v. Glidden, 60 Vt. 702, 15 

Ann. Cas. 1913A, 63, 109 Pac. 584, Atl. 358. 

110 Pac. 1092; Ewing v. Rhea, 37 54. Wynn v. Garland, 19 Ark. 

Ore. 583, 82 Am. St. Rep. 783, 23, 68 Am. Dec. 190; Flick v. 

52 L. R. A. 140, 62 Pac. 790. Bell, 110 Cal. xvii 42 Pac. 813; 

Compare Boynton v. Hunt, 88 Vt. Southwestern R. Co. v. Mitchell, 

187; 92 Atl. 153. 69 Ga. 114; Dlllion v. Crook, 11 

53a. Ameriscoggin Bridge v. Bush (Ky.) 321; Ferguson v. 

Bragg, 11 N. H. 102; Phillips v. Spencer 127 Ind. 66, 25 N. E. 

Cutler, 89 Vt. 233, 95 Atl. 487; 1035; Shipley v. Fink, 102 Md. 



^ 349] Easements. 1215 

form of relief in favor of the person making the im- 
provements, like that of the absolute negation of the 
right to revoke, appears properly to be a question of the 
construction of "the language used in according permis- 
sion to make use of the land, as to whether it is a 
license or the attempted grant of an easement. If the 
latter, it is for the court, in its discretion, it would 
seem, to determine whether the landowner should be 
given an opportunity, by reimbursing the expenditures 
made on the faith of the invalid grant, to relieve his 
land of the easement to which it would otherwise be sub- 
ject on the theory of equitable estoppel. 

License coupled with an interest. A license 

which is coupled with a grant or interest cannot, it is 
agreed, be revoked. ^^ What this means is that if one 
has an interest, acquired by grant or otherwise, in some 
thing or things upon the land, for the purpose of re- 
moving which a license to enter on the land is expressly 
given or necessarily implied, such removal cannot be 
prevented • on the theory that a license is revocable. 
The doctrine that a license coupled with an interest is 
irrevocable has been applied in the case of chattels 

219, 62 Atl. 316; Dawson v. West- 330, 351; Wood v. Leadbitter, 13 

ern Md. R. Co., 107 Md. 70, 14 Mees. & W. 838; Miller v. State, 

L. R. A. N. S. 809, 126 Am. St. 39 Ind. 267; Long v. Buchanan, 27 

Rep. 337, 15 A & E. Ann. Cas. Md. 502, 92 Am. Dec. 653; Ster- 

678, 68 Atl. 301; Johnson v. Bart- ling v. Warden, 51 N. H. 217, 12 

ron, 23 N. D. 629, 44L. R. A. (N. S.) Am. Rep. 80; Williamston etc. 

557, 137 N. W. 1092. See com- R. Co. v. Battle, 66 N. C. 540; 

pilation of cases in 44 L. R. A. Metcalf v. Hart, 3 Wyo. 513, 31 

N. S. 557. Am. St. Rep. 122, 27 Pac. 900, 

Applying such a theory, it has 31 Pac. 407. 
been held that if the licensee is Occasionally the courts have 

allowed to recover from the mistakenly referred to what is 

licensor the value of his improve- properly a valid grant of a right 

ments, he cannot thereafter assert of profit, as a license coupled 

that the license is irrevocable. with an interest. Funk v. Halde- 

Oster V. Broe, 161 Ind. 131, 64 man, 53 Pa. 229; McLeod v. Dial, 

N. E. 918. 63 Ark. 10, 37 S. W. 306. 

55. Thomas v. Sorrell, Vaughan 



1216 Real Property. [§ 349 

sold while lying- upon the vendor's premises, ^'^ and also 
in the case of chattels placed upon another's land by 
the latter 's permission.^'^ So, as has been judicially 
stated,^^ while a license by A to hunt in his park, 
whether given by deed or parol, is revocable, as merely 
rendering lawful the act of hunting, which would other- 
wise be unlawful, on the other hand, if the license be, 
not only to hunt, but also to take away the deer killed 
to his own use, this is a grant of the deer, with a license 
annexed to come on the land, and sup])osing the grant 
of the deer to be good, the license is irrevocable. The 
doctrine might also be applied in connection with a 
valid conveyance or sale of growing trees, or of min- 
erals or fixtures in or on the land, which while legally a 
part of the land, are capable of becoming ])ersonalty 
by severance,^^ but in such a case the inability of the 
landoVkTier to deprive the transferee of the privilge of 
entering on the land for the purpose of removing the 
things granted may perhaps be more satisfactorily 
based on the theory that the grantee of those things, 
trees, minerals or fixtures, as the case may be, acquires 
not a license merely, but an easement, a right of way by 
necessity,^ "^ which will endure so long as the necessity ex- 
ists. 

A license is obviously not coupled with a grant or 
interest in the sense referred to, so as to be irrevocable, 

56. Wood V. Manley, 11 Ad. & & W. 483: Giles v. Simonds, 15 
El. 34; Walker Furniture Co. v. Gray (Mass.) 441, 77 Am. Dec. 
Dyson, 32 Dist. Col. A.pp. 90, 19 373; Sterling v. Warden, 51 N. 
L. R. A. N. S. 606; Parker v. H. 217, 12 Am. Rep. 80; White 
Barlow, 93 Ga. 700, 21 S. E. 213; v. Elwell, 48 Me. 360, 77 Am. Dec. 
Rogers v. Cox, 96 Ind. 157, 49 231. 

Am. Rep. 152; Giles v. Simonds, 58. Wood v. Leadbitter, 13 

15 Gray (Mass.) 441, 77 Am. Dec. Mees. & W. 828. 

373; Heath v. Randall, 4 Cush. 59. See dewberry v. Chicago 

(Mass.) 195; Lambert v. Robin- Lumbering Co., 154 Mich. 84, 117 

son, 162 Mass. 34, 44 Am. St. Rep. N. W. 592; and infra, this section 

326, 37 N. E. 753. section, note 63. 

57. Patrick v. Colerick, 3 Mees. 60. Post, § 363(c). 



§ 349] Easements. 1217 

if the licensee lias failed to secure any interest by 
reason of the invalidity of the attempted grant of the 
interest.'^ ^ So it has been frequently decided that, an 
oral sale of growing trees being insufficient to pass 
them as such/^^ the vendee has merely a revocable 
license to cut the trees, while, after they are cut, the 
sale is regarded as taking effect on them, as intended, in 
their chattel character, and then the vendee, having an 
interest in the trees, has an irrevocable license to enter 
on the land to remove them.''-^ And a like doctrine 
has been applied in connection with a sale of minerals in 
or fixtures upon the land which, as being oral merely, 
is not effective as a transfer thereof.^* 

If what was originally a license has become, by 
the application of the doctrine of part performance or 
equitable estoppel, in effect an easement, it no doubt 
remains a burden upon the land in the hands of a subse- 
quent purchaser of the land, except when he is a pur- 
chaser for value and without notice.^^ And a subse- 

61. Crosby v. Wadsworth, 6 159, 29 Atl. 840; Polk v. Carney. 
East, 602; Wood v. Leadbitter, 17 S. D. 436. 97 .N W. 360; 
13 Mees & W. 838; Long v. Buch- Welever v. Advance Sningle Co., 
anan, 27 Md. 502, 92 Am. Dec. 653. 34 Wash. 331, 75 Pac. 863; Bru. 

62. Ante, § 261, note 82. ley v. Garvin, 105 Wis. 625, 48 

63. Colby Hinkley Co. v. Jor- L. R. A. 839, 81 N. W. 1038. 

dan, 146 Ala. 634, 41 So. 962; In Cool v. Peters Box Co., 87 

Jenkins v. Lykes, 19 Fla. 148, 45 Ind. 531, it was considered that 

Am. Rep. 19; Cool v. Peters Box even if the trees were cut by 

& Lumber Co., 87 Ind. 531; Gar- a stranger, the contract of sale 

ner v. Mahoney, 115 Iowa, 356, operated to vest title thereto in 

88 N. W. 828; Martin v. Johnson, the original vendee, who was con- 

105 Me. 156, 73 Atl. 963; Giles sequently entitled to sue the stran- 

V. Simonds, 15 Gray (Mass.) 441, ger for their conversion. 

77 Am. Dec. 373; United Soc. v. 64. MtCullagh v. Rains, 7.") 

Brooks, 145 Mass. 410, 14 N. E. Kan. 4.58, 89 Pac. 1041; Wetospsky 

622: White v. King, 87 Mich. 107, v. New Haven Gas Light Co., 88 

49 N. W. 518; Walton v. Lowrey, Conn. 1, 90 Atl. 30; Whitaker v. 

74 Miss. 484, 21 So. 243; Pierre- Cawthorne, 14 N. Car. 389. 

pont v. Barnard, 6 N. Y. 279; 65. That an innocent purchaser 

Fish v. Capwell, 18 R. I. 667, 49 for value is protected, see Prince 

Am. St. Rep. 807, 25 L. R. A. v. Case, 10 Conn. 375, 27 Am. Dec. 



1218 



Real. Property. 



§ 349 



qiient purcliaser with notice has no more right than has 
his vendor to revoke the license, so called.^*^ The li- 
censee has an equity against the licensor, the right to 
enforce which as against a purchaser from the licensor 
is determined by the ordinary rule for determining 
priorities in equity.*^ ^ 

(e) Mode of revocation. A license may be re- 



voked either by express words to that effect, or by an 
act on the part of the licensor indicating an intention to 
revoke it,^^ as when he makes its exercise impossible.'^" 
It is likewise revoked by a conveyance of the 
land to a third person,*^*^ or by the death of the 



675; Clark v. Close, 43 Iowa, 92; 
Wilkins v. Irvine, 33 Ohio St. 138; 
Wheation v. Cutler, 84 Vt. 476, 79 
Atl. 1091. 

66. Russell v. Hubbard, 59 111. 
335; Arterburn v. Beard, 86 Neb. 
733, 126 N. W. 379; Joseph v. 
Wild, 146 Ind. 249, 45 N. E. 467; 
Portman v. Topliff, 138 Iowa, 19, 
115 N. W. 508; Carrolton Tele- 
phone Exchange Co. v. Spicer, 177 
Ky. 340, 197 S. W. 827; Shaw v. 
Profitt, 57 Ore. 192, Ann. Cas. 
1913A, 63, 109 Pac. 584, 110 Pac. 
1092. 

67. See Ewart, Elstoppel, 199 
and post, § 566. 

68. Wood V. Leadbitter, 13 
Mees. & W. 838; Prince v. Case, 
10 Conn. 375, 27 Am. Dec. 675; 
Fluker v. Georgia Railroad & 
Banking Co., 81 Ga. 461, 12 Am. St. 
Rep. 328, 2 L. R. A. 843, 8 S. 
E. 529; Forbes v. Balenseifer, 74 
111. 183; Fischer v. Johnson, 106 
Iowa, 181, 76 N. W. 658; Hodg- 
kins V. Farrington, 150 Mass. 19, 
5 L. R. A. 209, 15 Am. St. Rep. 
168, 22 N. E. 73; Pitzman, v. 
Boyce, 111 Mo. 387, 33 Am. St. 



Rep. 336; Carleton v. Redinglon 
21 N. H. 291.311. 

But it has been held that the 
institution of an action of eject- 
ment by the licensor against the 
licensee does not effect a revo- 
cation for the purpose of that 
action. Somers v. Somers, 83 Conn. 
156, 76 Atl. 45. 

69. Hyde v. Graham, 1 Hurlst. 
& C. 593; Forbes v. Balenseifer, 
74 111. 183; Fowler v. Hyland, 48 
Mich. 179, 12 N. W. 26; Pitzman 
V. Boyce, 111 Mo. 387, 33 Am. St. 
Rep. 536, 19 S. W. 1104; Quimby 
V. Straw, 71 N. H. 160, 51 Atl. 656; 
West V. Shaw, 61 Wash. 227, 112 
Pac. 243; Hazelton v. Putnam, 3 
Pin. (Wis.) 107, 54 Am. Dec. 158. 

70. Wallis V. Harrison, 4 Mees. 
& W. 538; Hicks v. Swift Creek 
Mill Co., 133 Ala. 411, 91 Am. St. 
Rep. 38, 57 L. R. A. 720, 31 So. 
947; Wetospsky v. New Haven 
Gas Light Co., 88 Conn. 1, Ann. 
Cas. 1916D, 968, 90 Atl. 30; Jen- 
kins V. Lykes, 19 Fla. 148, 45 Am. 
Rep. 19; High v. Jasper Mfg. Co., 
57 Fla. 437, 49 So. 156; Kamp- 



§ 349] 



Easements. 



1219 



licensor/^ since a license cannot justify a trespass on 
land as against the licensor's grantee, heir or devisee."^ - 

(f) Termination otherwise than by revocation. 



A license may, as above indicated, cease to be opera- 
tive by reason of its revocation, that is, by reason of 
the landowner's indication of an intention to that 
effect,*^-^ or by reason of the land having passed into 
the hands of a person other than the licensor/^ It 
may also cease to ■ be operative by force of the terms 
of the license itself, as when it permits only one act 
by the licensee, and that act has been done, or the 
license is limited as to time,'^^ or it is subject to a 



house V. Gaffner, 73 111. 453; Mc- 
Intyre v. Harty, 236 111. 629, 86 
N. E. 581 ; Seidensparger v. Spear, 
17 Me. 123, 35 Am. Dec. 234; 
Drake v. Wells, 11 Allen (Mass.) 
141; Minneapolis, etc. R. Co. v. 
Marble, 112 Mich. 4, 70 N. W. 
319; Minneapolis Western Ry. Co. 
V. Minneapolis & St. L. Ry. Co., 
58 Minn. 128, 59 N. W. 983; Houx 
V. Seat, 26 Mo. 178, 72 Am. Dec. 
202 (but see Bracht v. Johnson, 
187 Mo. App. 220, 173 S. W. 692); 
Eckerson v. Crippen, 110 N. Y. 585, 
1 L. R. A. 487, 18 N. E. 443; 
VoUmer's Appeal, 61 Pa. St. 118; 
Price etc. Co. v Madison, 17 S. 
D. 247, 95 N. W. 9;{3; U. S. Coal 
& Oil Co. V. Harrison, 71 W. Va. 
217, 47 L. R. A. N. S.) 870, 76 
S. E. 346; Coleman v. Foster, 1 
Hurlst. & N. 27 (lease). 

So it is revoked by the con- 
veyance of a right of user in 
the land the exercise of which 
is inconsistent with the enjoy- 
ment of the license. Salinger v. 
North American Woolen Mills Co., 
70 W. Va. 151, 73 S. B. 312; Archer 
v. Chicago M. & St. P. R. Co., 



41 Mont. 56, 137 Am. St. Rep. 692, 
108 Pac. 571. 

71. DeHaro v. United States, 5 
Wall. (U. S.) 599, 18 L. Ed. 681; 
Jensen v. Hunter, 108 Cal. xvii, 
41 Pac. 14; Lambe v. Manning, 
171 111. 612. 49 N. E. 509; Spacy 
V. Evans, 152 Ind. 431, 52 N. E. 
605; Hodgkins v. Farrington, 150 
Mass. 19, 5 L. R. A. 209, 15 Am. 
St. Rep. 168, 22 N. E. 73; Estelle 
V. Peacock, 48 Mich. 469, 12 N. W. 
659; East Jersey Iron Co. v. 
Wright, 32 N. J. Eq. 248; Eggles- 
ton v. New York & H. R. Co.. 35 
Barb (N. Y.) 162; Chavez v. Tor- 
lina, 15 N. Mex. 53, 99 Pac. 690; 
Bridges v. Purcell, 18 N. C. 492; 
Caledonian etc. School v. Kent, 86 
Vt. 151. 84 Atl. 26; Hazelton v. 
Putnam, .3 Chand. (Wis.) 117, 3 
Pin. 107, 54 Am. Dec. 158. 

72. See note in 14 Harv. Law 
Rev. at p. 73. 

73. Ante, this section, notes 68, 
69. 

74. Ante, this section, notes 70, 
7]. 

75. Reed v. Merrefield. 10 Mete. 
155; Gilmore v. Wilson, 53 Pa. 



1220 Real Peoperty. [§ 349 

condition which has been violated. "^^ It may also come 
to an end by reason of the expiration of a reasonable 
time for acting thereunder/^ or by reason of its aban- 
donment by the licensee.''^ And a license being personal 
to the licensee, it becomes inoperative upon his death.'''* 
A license not being assignable, an attempted as- 
signment by the licensee of his rights thereunder has 
been regarded as bringing the license to an end,'^ the 
courts following in this regard the analog\' of a 
tenancy at will. It hag also been regarded as terminated 
by a sale of the land, even prior to a conveyance in 
pursuance thereof, the purchaser being let into posses- 
sion,^" and also by the setting off of the land under 
execution against the owner.^^ 

(g) Effect of termination. The termination of 

a license, by revocation or othei'wise, while it pre- 
cludes any subsequent acts on the authority of the 
license, does not affect the validity of acts previously 
done thereunder.''- If the licensee, in the course of the 

194; Oesting v. New Bedford. 210 41 Am. Rep. 720, 11 N. W. 265; 

Mass. 396, 96 N. E. 1095; Glynn Chandlery. Spear. 22 Vt. 388. 

V George, 20 N. H. 114. 79. Bates v. Duncan, 64 Ark. 

76 Pratt v. Ogden, 34 N. Y. 339, 62 Am. St. Rep. 190 42 S. 

20. W. 410; Fischer v. Johnson, 106 

77. Atite, § :M9(c), note 36. Iowa, 181, 76 N. W. 658; Blals- 

78. East Jersey Iron Co. v. dell v. Portsmouth etc. R. Co., 51 
Wright, 32 N. J. Eq. 248; Lake N. H. 483; Dark v. Johnston, 55 
Erie R. Co. v. Michener, 117 Ind. Pa. 164, 93 Am. Dec. 732; Polk v. 
465, 20 N. E. 254. Carney, 17 S. Dak. 436, 97 N. W. 

78a. Prince v. Case, 10 Conn. 360. 

375, 27 Am. Dec. 675; Ruggles v. 80. Bruley v. Garvin, 105 Wis. 

Lesure, 24 Pick. (Mass.) 187; Page 625, 48 L. R. A. 839, 81 N. W. 

V. Gaskill, 84 N. J. L. 615, 87 1038. 

Atl. 460; Hazelton v. Putnam, 3 81. Taylor v. Gerrish, 59 N. H. 

Chand. (Wis.) 117. 3 Pin. 107, 54 5C9. 

Am. Dec. 158. 82. Foot v. New Haven etc. Co., 

As to the effect, in case of a 23 Conn. 214; Owens v. Lewis, 46 

license given to two or more per- Ind. 488, 15 Am. Rep. 295; Stevens 

sons jointly, of the death of one, v. Stevens, 11 Mete. (Mass.) 251, 

see Rust v. Conrad, 47 Mich. 449, 45 Am. Dec. '203; Blaisdell v. 



<^ 349] Easements. 1221 

exercise of his rights under the license, has placed 
anything on the land, he is entitled, upon revocation 
of the license, to a reasonable time within which to 
remove it.^^ 

There is no obligation upon the licensee, on revoca- 
tion of the license, to restore the land to the condition 
in which it was before he made changes therein or 
placed structures thereon, under authoritv of the 
license.-^ 

The question of the right to revoke a license is 
entirely distinct from the question whether, in revoking 
it, the licensor violates a contract on his part, express 
or implied, not to revoke it. Though the revocation is 
perfectly valid and effective, the licensor may be liable 
in damages for having revoked it.'*'^ 

(h) Assignment of license. A license creates 

a privilege personal to the licensee, wliich cannot 
ordinarily be transferred by him to another.''" If the 

Portsmouth etc. R. Co., 51 N. H. 400; Cornish v. Stubbs, L. R. 5 C. 

483; Freeman v. Hadley, 32 N. J. P. 334. See Wilson v. Tavener 

L. 225; Great FaUs Waterworks (1901) 1 Ch. 578; Hodgkins v. 

Co. V. Great Northern Rwy. Co., 21 Farrington, 150 I\Iass. 19, 15 Am. 

Mont. 487, 54 Pac. 963; Pratt v. St. Rep. 168, 5 L. R. A. 209, 22 

Ogden, 34 N. Y. 20; Pursell v. N. E. 73. 

Stover, 110 Pa. 43, 20 Atl. 403; 84. Liggins v. Inge. 7 Bing. 

Merri weather V. Dixon, 28 Tex. 15; 682; Hodgkins v. Farrington, 150 

Lockhart v. Geir, 54 Wis. 133, 11 Mass. 19, 15 Am. St. Rep. 168, 

N. W. 245; Winter v. Broekwell, 58 L. R. A. 209, 22 N. E. 73. 

8 East 308. 85. Kerrison v. Smith, (1897) 

83. Brower v. Wakeman, 88 2 Q. B. 445; McCrea v. Marsh, 12 

Conn. 8, 89 Atl. 913; Shipley v. Gray (Mass.) 211; Goldman v. 

Fink, 102 Md. 219, 62 Atl. 316; Beach Front Realty Co., 83 N. J. 

Ingalls V. St. Paul, M. & M. R. L- 97, 83 Atl. 777; Pollock. Torts. 

Co., 39 Minn. 479, 12 Am. St. Rep. (6th Ed.) .'iG3. 

476, 40 N. W. 524, Great Falls 86. Wickham v. Hawker. 7 

Waterworks Co. v. Great Northern Mees. & W. 63; Ackroyd v. Smith, 

R. Co., 21 Mont. 487, 54 Pac. 963; 10 C. B. 188; Prince v. Case, 10 

Putnam v. State, 132 N. Y. 344, Conn. 375, 27 Am. Dec. 675; .Ten- 

30 N. E. 743; Wright v. Brown, kins v. Lykes, 19 Fla. 148. 45 

163 Mo. App. 117, 145 S. W. 518; Am. Rep. 19; Dawson v. Western 

Mellor V. Watkins, L. R. 9 Q. B. Md. R. Co., 107 Md. 70. 14 L. R. 



1222 Real Property. [§349 

license is coupled with an interest,'^*''' however, it en- 
ures to the benefit of one to whom the interest is as- 
signed,^^ that is, as the original grantee of things upon 
or in the land may enter to remove them, so any person 
acquiring title to them from him may do so. And a 
license, so called, which is irrevocable by reason of 
expenditures by tlie licensee ©n the strength thereof,®* 
is presumably assignal)le, in the sense that the privilege 
of making the particular use of another's land passes 
as incident to the transfer of land of the licensee for 
the benefit of which the license was given,®^ that is, 
as an appurtenant easement. 

In one case it was held that the benefit of a license, 
contained in an instrument of lease, enabling the lessor 
to enter for a certain purpose, passed to his transferee 
and was enforcible against an assigTiee of the lessee, the 
instrument expressly providing that the stipulations 
should extend to and be binding on the assignees of 
the respective parties,*^^ and in another case it was 
held to pass to the lessor's transferee without any 
mention of assigns.^*''' Such a stipulation, in terms 
giving the lessor a right to enter on the land, if re- 
garded as a contract to the effect that the lessor or his 
transferee should be allowed to enter, may well pass on 

A. (N. S.) 809, 126 Am. St. Rep. Mees. & W. 63; Heflin v. Bingham, 

337, 15 Ann. Cas. 678, 68 Atl. 56 Ala. 566, 28 Am. Rep. 776; 

301; Ward v. Rapp, 79 Mich. 469, Ely v. Cavanaugh, 82 Conn. 681. 

44 N. W. 934: Fuhr v. Dean. 26 74 Atl. 1122; Sawyer v. Wilson, 61 

Mo. 116, 69 Am. Dec. 484; Cowles Me. 529; Wiseman v. Eastman. 21 

V. Kidder, 24 N. H. 364. 57 Am. Wash. 163, 57 Pac. 398. 

Dec. 287; Blaisdell v. Portsmouth. 88. Ante, § 349(d), notes 44-51. 

G. F. & C. R. R., 51 N. H. 483: 89. See Russell v. Hubbard. 59 

Mendenhall v. Klinck, 51 N. Y. 111. 335. 

246. But St. John v. Sinclair, 89a. Marks v. Gartside, 16 111. 

108 Minn. 274, 122 N. W. 164 App. 177. 

appears to be contra. 89b. Brewster v. Gracey. 65 

86a. Ante, § 349(h), notes 55- Kan. 137, 69 Pac. 199. And see 

60. Stebbins v. Demorest, 138 Mich. 

87. Bassett v. Maynard, Cro. 297, 101 N. W. 528. 
Eliz. 819; Wickham v. Hawker, 7 



^ 350] 



Easements. 1'--3 



a transfer of the. reversion, and be enforcible against 
an assignee of the leasehold, as a covenant running 
with the land, so as to justify a recovery of damages 
for a breach thereof, and presumably a court of equity 
would in such case regard what is in terms merely a 
permission to enter as a contract for an easement of 
entry to endure for the life of the lease, and as such 
capable of specific enforcement by means of an in- 
junction to prevent any interference with the exercise 
of the right of entry by the lessee or his assignee. 

§ 350. Easements in gross and appurtenant. An 
easement ordinarily exists for the benefit of the owner 
of some particular land, it belonging to him as an in- 
cident of his ownership of the land. In other words, 
there is not only a ''servient" tenement, subject to 
the easement, but also a "dominant" tenem.ent, in 
favor of which the easement exists. And the easement, 
to be thus "appurtenant" to a dominant tenement, 
must be such that it conduces to the beneficial use of 
such tenement.^^ For instance, one cannot have a right 
of way over another's land, appurtenant to one's own 
land, except as it is available for going to or from 
the latter land. 

In England it has been judicially asserted that an 
easement is always appurtenant, that is, that one can- 
not have an easement which belongs to him personal- 
ly, apart from his ownership of particular land.^^ 

90. Ackroyd v. Smith, 10 C. B. conveyance by the owner of the 

164; Hill V. Tupper, 2 Hurl. & C. easement. 

121; Linthicum v. Ray, 9 Wall. It Is immaterial that the ease- 
(U. S.) 241; Moore v. Crose, 43 ment incidentally benefits land 
Ind. 30; Wh'aley v. Stevens, 21 S. other than the tenement to which 
C. 221, 27 S. C. 549, 4 S. E. 145. it is appurtenant. Simpson v. God- 
But in Perry v. Pennsylvania R. manchester, L. R. (1897) App. Cas. 
Co., 55 N. J. Law 178. 26 Atl. 696. See 10 Columbia Law Rev. 
829, it is held that an easement at p. 74. 

may be made appurtenant merely 91. Rangeley v. Midland Ry. 

by language to that effect in a Co., 3 Ch. App. 306; Ackroyd v. 



V224: 



Eeal. Property. 



[§ 350 



It appears, however, that ovoii there one niay have a 
riglit analogous to an easement, a personal right as to 
the nser of i^articular laud, not revocable at the pleasure 
of the land owner, ^- and whether this is called an ease- 
ment in gross, a right analogous to an easement, or a 
right of user, appears to be entirely immaterial. In 
this country the possibility of the existence of a person- 
al privilege in the nature of an easement or, as It is us- 
ually termed, of an "easement in gross," has been 
freely recognized ^^. 

The dominant tenement. Tliere is no necessity 



that the dominant tenement, to which the easement is 
appurtenant, should adjoin the servient tenement, 



Smith, 10 C. B. 164: Hawkins v. 
Rutter. 61 L. J. Q. B. 146. 

92. Mounsey v. Ismay. 3 Hurlst. 
& C. 498 ; Shuttleworth v. Le Flem- 
ing. 19 C. B. N. S. 695; Great 
Western Rwy. Co. v. Swindon etc. 
Rwy. Co., 22 Ch. Div. at pp. 706, 
707. 

Ways in gross are referred to 
in the earliest English law dic- 
tionary. Termes de la Ley (1629) 
under chimin: Doddridge, J., 
in W. Jones 127; by Chief Baron 
Gilbert in his work on Uses at 
p. 281. These references are from 
an article by Charles Sweet, Esq., 
in 24 Law Quart. Rev. at p. 260. 
A way in gross was assumed to 
have a legal existence In Sen- 
house V. Christian. 1 Term. Rep. 
5t".0. 

93. Wagner v. Hanna, 38 Cal. 
Ill, 99 Am. Dec. 354; Willoughby 
V. Lawren-e, 116 111. 1, 56 Am. 
Rep. 758. 4 N. E. 356; Engel v. 
Ayer. 86 Me. 448. 27 Atl. 352: Good- 
rich v. Burbank, 12 Allen (Mass.) 
459; A?nidon V. Harris. 113 Mass. 
59 ; Wilder v. Wheeler, 60 X. H. 351 ; 



Shreve v. Mathis. 63 N. J. Eq. 170, 
52 Atl. 234; Goldman v. Beach 
Front Realty Co., 83 N. J. 97, 83 
Atl. 777; Mayor, etc.. of the City 
of New York v. Law, 125 N. Y. 
380, 26 N. E. 471; Poull v. Mockley, 
33 Wis. 482. 

That an easement of diverting 
water from or across another's 
land may be in gross, see Ring 
V. Walker. 87 Me. 550, 33 Atl. 174; 
Goodrich v. Burbank, 12 Allen 
(Mass.'k 459: Hail v. Ionia, 38 
Mich. 423; Wentworth v. Philpot, 
60 X. H. 193; Talbit v. Joseph. 
79 Or 309, 155 Pac. 184; Columbia 
Water Power Co. v. Columbia Elec. 
St. Rwy.. 43 S. C. 154. 20 S. E. 
1002. 

In Myers v. Berven. 166 Cal. 484, 
137 Pac. 260, a right of way. not 
apparently created for the benefit 
of any particular land, was re- 
garded as assignable because, be- 
ing "distinctly of an easement 
over the soil upon a defined 
route," it was an easement, not in 
gross, but appurtenant. The 
opinion does not explain how an 



§ 350] 



Easements. 



1225 



which is siihject to the easeniont,^^ though obviously 
the two tenements ordinarily do adjoin. There are, how- 
ever, statements to be f ound,^'"' and at least one decision,*^" 
that a risht of way cannot be appurtenant to land 
unless it has one of its termini upon the land to which 
it is claimed to be appurtenant, a view which is ap- 
parently not in harmony with the statement that the 
dominant and servient tenements need not adjoin. 
Why one terminus of a way must be upon the domi- 
nant tenemient, is not explained. 

It has been asserted that a way, in order to be ap- 
purtenant to land, must be ''essentially necessary" to the 
enjoyment of the land.**® If this statement means an}'- 
thing more tlian that the way must conduce to the ad- 
vantage of such land, it is, it is conceived, erroneous. 

It is a question whether an easement can be appur- 
tenant to an incorporeal hereditament, whether for in- 
stance, a right of way over the land of A can exist 
as appurtenant to, and for the purpose of exercising. 



easement can be appurtenant in 
the absence of a dominant tene- 
ment. 

94. Guthrie v. Canadian Pac. R. 
Co., 27 Ont. App. 64; Graham v. 
Walker, 78 Conn, 130, 2 L. R. A. N. 
S. 983, 112 Am. St. Rep. 93, 61 
Atl. 98; GoodwiUie Co. v. Com- 
monwealth Electric Co., 241 111. 
42, 89 N. E. 272; Jobling v. Tiittle, 
75 Kan. 351. 9 L. R. A. X. S. 
960, 89 Pac. 699; Witt v. Jeffer- 
son, 13 Ky. Law Rep. 746, 18 S. 
W. 229; Cady v. Springfield Water- 
works Co., ]:!4 N. Y. 118, 31 N. 
E. 245; Rieffler v. Wayne Storage 
Water Power Co., 232 Pa. 282, 81 
!A.tl. 300; Perrin v. Oarfiel'l, 37 
Vt. 304. 

95. Washburn, Easements (4th 
Ed.) 257 {Hcmhle); Garrison v. 
Rudd, 19 111. 558; Sanxay v. Hun- 



ger, 42 Ind. 44. See Lathrop v. 
Eisner, 93 -Mich. 599, 53 N. W. 
791; Kershaw v. Burns, 91 S. Car. 
129, 74 S. E. 378. 

96. Whaley v. Stevens. 21 S. 
Car. 223. 

97. That it need not, see Gra- 
ham V. Walker, 78 Conn. 130, 112 
Am. St. Rep. 93, 2 L. R. A. N. S. 
983, 61 Atl. 98; GoodwiUie Co. 
V. Electric Co., 241 111. 42, 89 N. 
E. 272; Witt v. Jefferson, 13 Ky. 
L Rep. 746, 18 S. W. 229; Case 
of Private Road, 1 Aslini. (Pa.) 
417. 

98. Washburn, P^asements, (4th 
Ed.) 257; Moore v. Crose, 4.'! Ind. 
30; Whaley v. Stevens, 27 S. Car. 
549, 4 S. E, 145; Fish?r v. Fair, 34 
S. Car. 203, 14 L. R. A. 33;!, 13 
S. E. 470. 



1226 



EeAL. PKOPEilTy. 



[§ 350 



a privilege in gross of fishing or taking minerals on the 
land of B. There is in England a dictum in favor of the 
view that an easement may thus appertain to an incor- 
poreal hereditament,^ ^'^ and also a dictum to the con- 
trary.^^'^ 

Transferability of easement. An easement in 



gross has occasionally been regarded as susceptible of 
voluntary transfer,*^^ and as passing by descent,^ pro- 
vided as least the language used in its creation shows 
an intention to that effect,^ But more frequently such 
an easement has been regarded as so purely personal 
to the original grantee as to be incapable of voluntary 
or involuntarv transfer.^ Considerations in favor of 



98a. Hanbury v. Jenkins, L. R. 
2 Ch. 401. There is an assumption 
to this effect by Sharswood, J., in 
Tinicum Fishing Co. v. Carter, 61 
Pa. St. 21, 100 Am. Dec. 597. 

98b. Atty. Gen. v. Copeland, L. 
R. (1901) 2 K. B. 101. See Gale, 
Easements (8th Ed.) 12; Goddard, 
Easements (6th Ed.) 12. 

99. Goodrich v. Burbank, 12 
Allen (Mass.) 459, 90 Am. Dec. 
161; French v. Morris, 101 Mass. 
68; Amidon v. Harris, 113 Mass. 
59; Pinkum v. Eau Claire, 81 Wis. 
301, 51 N. W. 550; Poull v. Mock- 
ley, 33 Wis. 482; Percival v. Wil- 
liams, 82 Vt. 531, 74 Atl. 321. See 
Standard Oil Co. v. Buchi, 72 N. 
J. Eq. 492, 66 Atl. 427. 

In Engel v. Ayer, 85 Me. 448, 27 
Atl. 352, such a right was regarded 
as transferable, apparently on the 
theory that, because it involved a 
possibility, in the particular case, 
of monopolizing a large part of 
the servient tenement and was pe- 
cuniarily profitable, it was equiv- 
alent to a profit a prendre. This 
view is adopted from Washburn, 



Easements (4th Ed.) 13. The 
same view is asserted, apparently, 
by Walworth Ch., in Post v. Pear- 
sail, 22 Wend. 425; Sharswood J., 
in Tinicum Fishing Co. v. Carter, 
61 Pa. St. at p. 40. 

1. Goodrich v. Burbank, 12 
Allen (Mass.) 459, 90 Am. Dec. 
161 ; Ring v. Walker, 87 Me. 550, 
33 Atl. 174; Percival v. Williams, 
82 Vt. 531, 74 Atl. 321. 

2. In Field v. Morris, 88 Ark. 
148, 114 S. W. 2061 Wilder v. Wheel- 
er, 60 N. H. 351, it was held that 
it was not transferrable because 
the language used in its creation 
did not show an intention to 
that effect. And in Lynch v. 
White. 85 Conn. 545. 84 Atl. 326, 
it was held that, there being no 
words of limitation extending it 
to heirs, and no facts showing 
such an intention, it endured only 
for the life of the person in favor 
of whom it was created. 

3. Freed v. Morris, 88 Ark. 148, 
114 S. W. 206; Wagner v. Hanna. 
38 Cal. Ill, 99 Am. Dec. :'.54; Hall 
V. Armstrong, 53 Conn. 554, 4 Atl. 



^ 350] Easements. 1227 

the latter view have been suggested as follows: "If 
such right be an inheritable estate, how will the heirs 
take? In severalty, in joint tenancy, coparcenary, or as 
tenants in common? If not in severalty, how can their 
interests be severed! If it be assignable, what limit 
can be placed on the power of alienation? To whom 
and to how many may it be transferred?"^ Never- 
theless it is somewhat difficult to see why, if, as appears 
to be the case,^ a profit in gross is capable of passing 
by voluntaiy transfer and by descent, an easement in 
gross should not be so capable. The courts could ef- 
fectually protect the owner of the servient tenement 
against an assigimient to such a number of persons 
as unduly to increase the burden thereon, and the heirs 
might w^ell be regarded as holding in that fonn of 
cotenancy w^hich exists in case of the descent of land 
itself. 

An appurtenant easement is regarded as so closely 
annexed to the dominant tenement that it passes 
prima facie upon a conveyance of such tenement with- 
out express mention,''^ and regardless of whether the 

113 (dictum); Louisville etc. 6. Lide v. Hadley, 36 Ala. 627. 

R. Co. V. Koelle, 104 111. 455; 76 Am. Dec. 338; Quiiilan v. Noble, 

Hoosier Stone Co. v. Malott, 130 75 Cal. 250, 17 Pac. 69; Goodwin 

Ind. 121, 29 N. E. 412, {dictum); v. Bragaw, 87 Conn. 31, 86 Atl. 

Winston v. Johnson, 42 Minn. 398, 6G8; Taylor v. Dyches, 69 Ga. 455; 

45 N. W. 958 (dictum); Tinicum Tinker v. Forbes, 136 111. 221, 26 

Fishing Co. v. Carter, 61 Pa. 21, N. E. 503; Moore v. Grose, 43 Ind. 

100 Am. Dec. 597; Comm. v. Zim- 30; Cassens v. Meyer, 154 Iowa, 

merman, 56 Pa. Suiper Ct. 311; 187, 134 N. W. 543 (warranty 

Cadwalader v. Bailey, 17 R. I. 495, deed) ; Wendell v. Heim, 87 Kan. 

14 L. R. A. 300, 23 Atl. 20; Fisher 136, 123 Pac. 869; Hammond v. 

V. Fair, 34 S. Car. 203, 13 S. B. Eads, 146 Ky. 162, 142 S. W. 379; 

470; Kershaw V. Burns, 91 S. Car. Dority v. Dunning, 78 Me. 381, 

129, 74 S. E. 378; Salem Capital 6 Atl. 6; Douglass v. Riggin, 123 

Flour Mills V. Stayton Water Ditch Md. 18, 90 Atl. 1000; Barnes v. 

& Canal Co. (C. C.) 33 Fed. 14G. Lloyd, 112 Mass. 224; Willets v. 

4. Boatman v. Lasley, 23 Ohio Langhaar, 212 Mass. 573, 99 N. 
St. 614, per Mcllvaine, J. E. 466; Dulce Realty Co. v. Stead 

5. Post, § 382, note 19. Realty Co., 245 Mo. 417, 151 S. 



1228 Keal Peoperty. [§ 350 

conveyance refers to ''appurtenances."' Likewise a re- 
covery in ejectment of the dominant tenement involves 
a recovery of an easement appurtenant thereto/^ 

Since an easement appurtenant is intended to be 
exercised only for the benefit of and in connection with 
the dominant tenement, it cannot be separated there- 
from by its transfer to a person other than the owner 
of such tenement.^ Such a separation would involve 
its conversion into an easement in gross. 

Duration of easement. An appurtenant ease- 
ment usually exists in favor of one having an estate in 
fee simple in the dominant tenement, but in so far as 
the easement is intended to endure so long only as 
the purpose of its creation can be regarded as still 
existent,^*^ the possible duration of the easement cor- 
responds to that of an estate in fee determinable rather 
than to that of an estate in fee simple. And occas- 
sionally the language of the grant creating an ease- 
ment expressly provides that it is to endure only 

W. 415; Sweetland v. Olseii, 11 & Aid. 661. 

Mont. 27, 27 Pac. 339; Spaulding 9. Ackroyd v. Smith, 10 C. B. 

V. Abbott, 55 N. H. 423; Voorhees 164; Moore v. Crose, 43 Ind. 30; 

V. Burchard, 55 N. Y. 58; Shields Baker v. Kenney, 145 Iowa, 638. 

V. Titus, 46 Ohio St. 528, 22 N. E. 139 Am. St. Rep. 456, 12 N. W. 

II'I; Jackson v. Trullinger, 9 Ore. 901; Ring v. Walker, 87 Me. 550, 

393; Ruhnke v. Aubert, 58 Ore. 6, 33 Atl. 175; Wilson v. Ford, 209 

113 Pac. 38; Rhea v. Forsyth, 37 N. Y. 186, 102 N. E. 614; Wood 

Pa. St. 503, 78 Am. Dec. 441; v. Woodley, 160 N. C. 17, 41 L. R. 

Chambersburg Shoe Mfg. Co. v. A. (N. S.) Ii:i7, 75 L. E lU: 

Cumberland Valley R. Co., 240 Pa. Boatman v. Lasley, 23 Ohio St. 

St. 519, 87 Atl. 968; Re Barhous- 614; Cadwalader v. Bailey, 17 R. 

en, 142 Wis. 292, 124 N. W. 649. I. 495, 14 L. R. A. 300. 23 Atl. 

7. Shelby v. Chicago & E. I. R. 20; Reise v. Enos. 76 Wis. 634, 8 
Co. 143 111. 385, 32 N. E. 438; L. R. A. 617, 45 N W. 414. 
Agnew V. Pawnee City, 79 Neb. That the attempted transfer of 
603, 113 N. W,. 236; Smith v. the easement apart from the dom- 
Garbe, 86 Neb. 94, 124 N. W. 921. inant tenement does not extinguish 

8. Callaway v. Forest Park the easement, see a suggestive 
Highlands Co., 113 Md. 1, 77 Atl. note in 20 Harv. Law Rev. 136. 
141; Crocker v. Fothergill, 2 Barn. 10. Post, § 372. 



^ 350] 



Easements. 



1229 



until a certain event occurs.^ ^ An appurtenant ease- 
ment may also, as well as an easement in gross, be 
for life, as having been intended to endure only so 
long as the grantee's life estate in the dominant tene- 
ment endures,^- or as having been created by one having 
only a life estate in the land in which it is created. The 
easement may be for years only.^^ 

Determination of class. Whether, in any par- 
ticular case, an easement created by grant is an 
easement appurtenant or an easement in gross, is to be 
determined by the language of the grant as construed in 
the light of tiie surrounding circumstances.^"'' That the 
easement is of value to particular land owned by the 
grantee of the easement,^* or that it is valueless except 
as exercised for the benefit of such land,^^ tends to 



11. See e. g. Arbaugh v. Alex- 
ander, 164 Iowa, 635, 146 N. W. 
747; Wooding v. Michael, 89 Conn. 
704, 96 Atl. 170. 

12. See Hoffman v. Savage, 15 
Mass. 130; Goodall v. Godfrey, 53 
Vt. 219, 38 Am. Rep. 671; Pym v. 
Harrison, 33 Law Times, 796. 

13. Davis V. Morgan, 8 B. & C. 
8. See Booth v. Alcock, L. R. 8 
Ch. 663; Newhoff v. Mayo, 48 N. 
J. Eq. 619, 27 Am. St. Rep. 455, 23 
Atl. 265. 

13a. Hopper v. Barnes, 113 Cal. 
636, 45 Pac. 874; Durkee v. Jones, 
27 Colo. 159, 60 Pac. 618; Blan- 
chard v. Maxson, 84 Conn. 429, 80 
206; Cassens v. Meyer, 154 Iowa, 
187, 134 N. W. 543; Hammond v. 
Eads, 146 Ky. 162, 142 S. W. 379; 
Dennis v. Wilson, 107 Mass. 591; 
Kent Furniture Mfg. Co. v. Long, 
111 Mich. 383, 69 N. W. 657; 
Liederding v. Zignego, 77 Minn. 
421, 77 Am. St. Rep. 677, 80 N. W. 
360; Smith v. Garbe, 86 Neb. 94, 
124 N. W. 921; Ruhnke v. Aiibert, 
2 R. P.— i 



53 Ore. 6, 113 Pac. 38; Cadwal- 
ader v. Bailey, 17 R. I. 495, 23 
Atl. 20. 

14. Webb V. Jones, 163 Ala. 637, 
50 S. 887; Durkee v. Jones, 27 
Colo. 159, 60 Pac. 618; Blancliard 
V. Maxson, 84 Conn. 429, 80 Atl. 
206; Cherokee Mills v. Standard 
Cotton Mills, 138 Ga. 856, 76 S. 
E. 373; Goodwillie Co. v. Com- 
monwealth Electric Co., 241 111. 
42, 89 N. E. 272; Cassens v. Meyer, 
154 Iowa, 181, 134 N. W. 543; 
Smith v. Ladd, 41 Me. 314; Green- 
wood Lake & P. J. R. Co., v. New 
York & G. L. R. Co., 134 N. Y. 
435, 31 N. E. 874; Smith v. Garbe, 
86 Neb. 91, 136 Am. St. Rep. 674, 
20 A. & E. Ann. Cas. 1209, 124 
N. W. 921 ; Ruffin v. Seaboard Air 
Line Rwy.. 151 N. Car. 330, 66 
S. E. 317; Reise v. Enos, 76 Wis. 
634, 8 L. R. A. 617, 45 N. W. 
414; Jones v. Island Creek Coal 
Co., 79 W. Va. 532, 91 S. E. 391. 

15. Hopper v. Barnes, 113 Cal. 
636, 45 Pac. 874; Schmidt v. 



1230 



Real. Pboperty. 



"§ 350 



sliow that it is appurtenant to such land. The fact 
tnat, after the creation of the easement, it was exercised 
oxrhisively in connection with particular property be- 
Ionising to tlie grantee of the easement would seem also 
to tend to indicate that it is appurtenant thereto.^® 
That the grant of an easement is in terms in favor of 
one, liis heirs and assigns, does not tend to show that 
it is personal rather than appurtenant,^' nor, on the 
other hand, does the omission of such words ordinarily 
have such an effect. ^^ That it is granted to one for life 
or during his occupation of particular land has been 
r(»oai-c]ed as showing an intention to create a mere per- 
sonal right. ^'^'^ 

The courts tend to regard an easement as ap- 
purtenant rather than as in gross,*" and accordingly, in 



Brown, 226 111. 590, 80 N. E. 1071; 
Cassens v. Meyer, 154 Iowa, 187. 
134 N. W. 543; Dennis v. Wilson, 
107 Mass. 591; Lathrop v. Elsnor. 
93 Mich. 593, 53 N. W. 791; Lid- 
gerding v. Zignego, 77 Minn. 421, 
77 Am. St. Rep. 677, 80 N. W. 
360; Cadwalder v. Bailey, 17 R. 
I. 495, 14 L. R. A. 300, 23 Atl. 
20. 

16. Ruhnke v. Aubert, 58 Ore. 
6, 113 Pac. 38; Wesley v. M. N. 
Cartier & Sons Co., 30 R. I. 40:'.. 
75 At. 626; L-dgerding v. Zigneg"^, 
77 Minn. 421, 77 Am. St. Rep. 677, 
80 N. W. 360. And see Winston 
V. Johnson, 42 Minn. 398, 45 N. 
W. 958. But see Wentworth v. 
Philpot, 60 X. H. 193. 

17. Callaway v. Forest Park 
Highlands Co., 113 Md. 1. 77 Atl. 
141; Parsons v. New York N. H. 
& H. R. Co., 216 Mass. 269, 103 
N. E. 693; Mitchell v. D'Olier, 68 
N. J. L. 375, 59 L. R. A. 949, 
53 Atl. 467. Rather does such lan- 
guage indicate an intention that the 



easement shall be appurtenant. 
Hopper V. Barnes, 113 Cal. 636, 45 
Pac. 874; Moll v. McCauley, 83 
Iowa, 677, 50 N. W. 216: French 
V. Williams, 82 Va. 462, 4 S. E. 
591. 

18. Dennis v. Wilson. 107 Mass. 
591; Teachout v. Capital Lodge 
etc., 128 Iowa, 384, 104 N. W. 440; 
Cleveland C. C. & St. L. Rwy. Co. 
V. Griswold, 51 Ind. App. 497, 97 
N. E. 1030; United States Pipe 
Line Co. v. Delaware L. & W. 
R. Co., 62 N. J. L. 254. 42 L. 
R. A. 572. 41 Atl. 759: Contra 
Comm. V. Zimmerman, 56 Pa. 
Super. 311; Wilder v. Wheeler. 60 
N. H. 351. Compare Lidgerding v. 
Zignego, 77 Minn. 421. 77 Am. St. 
Rep. 677, SO N. W. 360. 

18a. Estabrooks v. Estabrooks, 
91 Vt. 515, 101 Atl. 584. 

19. McMahan v. Williams. 79 
Ala. 288; Gardner v. San Gabriel 
Valley Bank, 7 Cal. App. 106. 9;^ 
Pac. 900; Blanchard v. Maxson, 
84 Conn. 489, 80 Atl. 206; Chero- 



§ 350] 



Easements. 



1231 



the ordinary case, a reservation of an easement on a 
conveyance of part of one's land will be regarded as of 
an easement appurtenant to the land retained/^'"' while 
an easement in the land retained, created by the in- 
strument by which land is conveyed, will ordinarily be 
appurtenant to the land conveyed.^^'^ But a different 
view has been indicated in one case, to the eifect that if 
the grant of an easement is by a clause entirely separate 
from that by which the land is conveyed, though 
by the same instrument, it is to be regarded as in 
gVoss.^^'' In one case the fact that the grant of the 
easement was on the sarnie day on which land had been 
granted was regarded as showing that it was appurte- 
nant to such land/^*^ 

The fact that one to whom there was granted the 
privilege of taking water from another's land had a 
life estate only in neighboring land has been regarded 
as tending to show that the privilege was not ap- 



kee Mills v. Standard Cotton Mills. 
138 Ga. 856, 76 S. E. 373; Whit- 
aker v. Harding. 256 111. 148, 99 
N. E. 945; Lucas v. Rhodes, 48 
Ind. App. 211, 94 N. E. 914; Pres- 
byterian Church of Osceola v. Har- 
ken, 177 Iowa, 195, 158 N. W. 
692; Hammond v. Eads. 146 Ky. 
162, 142 S. W. 379; Willets v. 
Langhaar, 212 :\Iass. 573, 99 N. E. 
466; Lidgerding v. Zign go, 77 
Minn. 421. 77 Am. St. Rep. 677, 
80 N. W. 3G0: Ruhnke v. Aubert, 
58 Ore. 6, 113 Pac. 38; Smith v. 
Garbe, 86 Neb. 94, 124 N. W. 921; 
WSlson V. Ford, 209 N. Y. 186, 
102 N. E. 614; Ruhnke v. Aubert, 
58 Ore. 6, 113 Pac. 38; Calwalader 
V. Bailey, 17 R. I. 495, 14 L. R. A. 
300, 23 Atl. 20; French v. Wil- 
liams, 82 Va. 462, 4 S. E. 591; 
Spensley v. Valentine, 34 Wis. 154. 
But see Wilder v. Wheelor, 60 N. 



H. 351; Comm v. Zimmerman, 56 
Pa. Super. 311. 

19a. Winthrop v. Fairbanks, 41 
Me. 307; Smith v. Ladd, 41 Me. 
316; Bowen v. Conner, 6 Cush. 
(Mass.) 132; Dennis v. Wilson, 
107 Mass. 591; Lathrop v. Eisner, 
93 Mich. 599; Winston v. .Johnson, 
4? Minn. 398, 45 N. W. 958; Pres- 
byterian Church of Osceola v. 
Harken, 177 Iowa, 195, 158 N. W. 
692. 

19b. Kuecken v. Voltz, 110 111. 
264; Stearns v. Mullen. 4 Gray 
(Mass.) 151; Blood v. Millard, 172 
Mass. 65, 51 N. E. 527; Gunson 
V. Healy, 100 Pa. 42; Reise v. 
Enos, 76 Wis. 634, 8 h. R. A. 617, 
45 X. W. 414. 

19c. Shreve v. Mathis, 63 N. 
J. Eq. 170. 52 Atl. 234. 

19d. Moll V. McCauley, 83 Iowa. 
677. 50 N. W. 216. 



1232 Eeal Pkoperty. [§ 350 

pnrtenaiit to such land.^^^ In tlie same state it has 
been said that the fact that the gift of a right of way 
to one who owned land in fee was expressed to be for 
life only might indicate that the way was in gross and 
not appurtenant to his land.^'^^ If the language of the 
grant or reservation of an easement is such as itself 
to show that the easement was created solely for ex- 
ercise in connection with particular land, as in the 
case of a right of way specified to be to and from such 
land, it is appurtenant. ^^^ 

The fact that the instrument by which a right of 
way is created fails to refer in any way to neighboring, 
land owned by the beneficiary of the grant has occasion- 
ally been regarded as showing that the right is not 
intended to be appurtenant to such land, but is in 
gross. ^^'^ But there are a greater number of decisions 
which assert, expressly or by implication; a contrary 
view, to the effect that the dominant tenement need not 
be expressly referred to.^** 

In the case of an easement by prescription, whether 
the easement is appurtenant or in gross is to be 
determined by the consideration whether the user 
of the servient tenement throughout the prescriptive 
period was for the benefit of, and in connection A\'ith, 

19e. Amidon v. Harris, 113 4 S. E. 591; Thorpe v. Brumfitt, 

Mass. 59. L. R. 8 Ch. 650. 

19f. Dennis v. Wilson, 107 19h. Wag'ner v. Hanna. .38 Cal. 

Mass. 591. See Lidgerding v. Zig- ill, 99 Am. Dec. 354; Metzger v. 

nego, 77 Minn. 421, 77 Am. St. Holwick, 17 Oliio Circ. Ct. 605. 

Rep. 677, 80 N. W. 360; Mc- 20. Hopper v. Barnes, 113 Cal. 

Daniel v. Walker, 46 S. C. 43, 636, 45 Pac. 874; Durkee v. Jones, 

24 S. E. 378. 27 Col. 159, 60 Pac. 618; Gold- 

19g. Lide v. Hadley, ?S Ala. stein v. Raskin, 271, 111. 249, 111 

627, 76 Am. Dec. 338; MendeU v. N. E. 91 (distinguishing Garrison 

Delano, 7 Mete. (Mass.) 176; v. Rudd, 19 HI. 558, as having 

George v. Cox, 114 Mass. 382; Val- been at law); Dennis v. Wilson, 

entine v. Schreiber, 3 N. Y. App. 107 Mass. 591; Salem Capital 

Div. 235, 38 N. Y. Supp. 417; Flour Mills v. Stayton Water Ditch 

Gunson v. Healy, 100 Pa. St. 42; & Canal Co., 33 Fed. 146. 
French v. Williams, 82 Va. 462, 



§ 351] Easements. 123o 

one particular piece of land, and also of the consider- 
ation of its utility in connection wdth sucli land or its 
lack of utility apart therefrom.^i 

A right of user, given to one of the parties to a 
partition of land, over the portion allotted to another 
of such parties, has been regarded as appurtenant to 
the portion allotted to the former.- - 

There are occasional decisions to the effect that one 
may acquire, by grant or reservation, an easement to be 
exercised in connection with and for the benefit of par- 
ticular land which he does not own, in which case, it 
seems, the easement is in gross until he acquires such 
land, and if and when he acquires it, the easement be- 
comes appurtenant to the land.^^* 

§ 351. Light and air. As before stated, the owner 
of land has no "natural right" to light or air, and can- 
not complain that either has been cut off by the erection 
of buildings on adjoining land.-"' An owner of land may, 
however, acquire, by grant or its equivalent, a right to 
have light and air enter a particular window or other 
aperture, free from interruption by the owner of ad- 
jacent land, and such a right constitutes an easement 
in his favor.-^ 

21. Schmidt v. Brown, 226 111. note 29. 

590, 80 N. E. 1071. 24. Turner v. Thompson. 58 Ga. 

22. KarmuUer v. Krotz, 18 268, 24 Am. Rep. 497; Keating v. 
Iowa, 352; Davenport v. Lamson, Springer, 146 111. 481, 22 L. R. A. 
21 Pick. (Mass.) 72; Bowen v 544, 37 Am. St. Rep. 175, 34 N. 
Conner, 6 Cush. (Mass.) 132. See E. 805; White v. Bradley. 66 Me. 
Hopper V. Barnes, 113 Cal. 636, 254; Janes v. .lenkins, 34 Md. 1, 
45 Pac. 874. 6 Am. Rep. 300; Story v. Odin. 

22a. North British Railway Co. 12 Mass. 157, 7 Am. Dec. 46; 

V. Park Yard Co. (1898) App. Cas. Brooks v. Reynolds, 106 Mass. 31; 

643; Amidon v. Harris. 113 Mass. Greer v. Van Meter, 54 N. J. Eq. 

59; Percival v. Williams, 82 Vt. 270, 33 Atl. 794; Lattimer v. Liv- 

531, 74 Atl. 321; Kalmowski v. ermore, 72 N. Y. 174; Weig- 

Jacobowski, 52 Wash. 359, 100 Paf. mann v. Jones, 163 Pa. St. 330, 

852. 30 Atl. 198. As to air, see Chas- 

23. Ante, § 336, note 4d, § 338, tey v. Ackland (1895) 2 Ch. 389, 



123-1: Ee.\l Peoperty. [§ 352 

While the owner of land is entitled to have the air 
diffused over his land free from pollution by any use 
made of neighboring land, this being a natural right, 
an infringement of which constitutes a nuisance,-^ the 
OAvner of the neighboring land may acquire, by grant or 
prescription, an easement consisting of the right to make 
such injurious use of his land, or, as it is sometimes said, 
he may acquire a right to maintain a nuisance involving 
the pollution of air.^^ 

§ 352. Waters and watercourses. The mutual rights 
of adjoining or neighboring owners in regard to water 
have been previously considered.^^* These rights may, 
however, be suspended or modified in favor of the owner 
of one piece of land as against another by the creation 
of an easement. So, the owner of land upon a natural 
stream may acquire from the owner of land lower down 
on the same stream, by grant or prescription, the 
privilege of polluting the stream, or of appropriating 
what would otherwise be an unreasonable amount of 
water,^^ or he may acquire the privilege of obstructing 
the flow of the stream so as to flood the land of an 

(1897) App. Cas. 155; PoHock, v. Bessey, 49 Me. 539. 77 Am. Dec. 

Torts (6th Ed.) 399, note. 271; Warner v. Cushman, 82 Me. 

25. See anfe, § 338. 168, 19 AtU 159; Washburn & 

26. Goddard, Easements, 265; 2 Moen Mfg. Co. v. Salisbury, 152 
Wood, Nuisances, § 704 et seq. Mass. 346, 25 N. E. 724; Smith v. 
Sturges V. Bridgman, 11 Ch. Div. City of Sedalia. 152 Mo. 283, 48 
852; Dana v. Valentine, 5 Mete. L. R. A. 711, 53 S. W. 907; Lov- 
(Mass.) 8; Matthews v. Stillwater erin v. Walker, 44 N. H. 489; 
Gas etc. Co., 63 Minn. 493, 65 N. Holsman v. Boiling Spring Bleach- 
W. 947. ing Co., 14 N. J. Eq. 335, 346; 

26a. Ante, § 339. Provost v. Calder, 2 Wend. (N. 

27. Stockport Waterworks Co. Y.) 517; Winchester v. Osborne, 61 
V. Potter, 3 Hurl. & C. 300; Wood N. Y. 555; Geer v. Durham Water 
V. Waud, 3 Exch. 748; Tyler v. Co., 127 N. C. 349, 37 S. E. 474; 
Wilkinson, 4 Mason, 397, Fed. Cas. Talbot v Joseph. 78 Ore. 308, 155 
No. 14312; Village of Dwight v. Pac. 184; McCallum v. German- 
Hayes, 150 111. 273, 41 Am. St. town Water Co., 54 Pa. St. 40; 
Rep. 367, 37 N. E. 218; Crosby Messinger's Appeal, 109 Pa. St. 



^ 352] 



Easements. 



1235 



upper proprietor.2^ So, land may be subject to an ease- 
ment precluding- the owner thereof from cutting off 
percolating water, to the detriment of a neighboring 
owner, though otherwise he has the privilege of doing 
so f^ or an easement may exist modifying the rights of 
adjoining owners as to the discharge or flow of sur- 
face waters.''*' 

Right to take water from spring. Not infre- 



quently the owaier of land on which there is a spring or 
well grants to a neighboring land owner the privilege of 



285, 4 Atl. 162; Olney v. Fenner, 
2 R. I. 211, 57 Am. Dec. 711; 
Rood V. Johnson, 26 Vt. 64. 

A privilege in a riparian owner 
to divert or pollute the water of 
the stream is not strictly an ease- 
ment in the land of the owner 
who suffers by such diversion or 
pollution, it has been said, since 
it involves no use of the latter's 
land, or restriction of its use. 
Cockburn, C. J., in Mason v. 
Shrewsbury & H. Ry Co., L. R. 
6 Q. B. 578; Geer v. Durham 
Water Co., 127 N. C. 349; 37 S. E. 
474. It does, however, involve the 
privilege of doing an act to the 
detriment of such land, that is, of 
dspleting the water flowing 
thereby, and the statement refer- 
red to would seen unduly to nar- 
row the definition of an easement. 
See article by Professor Wesley N. 
Hohfield, 27 Yale Law Journ. 66. 

28. Wright v. Howard, 1 Sim. 
& S. 190; Central Georgia Power 
Co. V. Cornwell, 141 Ga. 843, 82 
S. E. 24;'.; Ballard v. Struckman, 
123 m. 636, 14 N. E. 682; Brook- 
ville & M. Hydraulic Co. v. Butler, 
91 Ind. 134; Williams v. Nelson, 2:? 
Pick. (Mass.) 141, 34 Am. Dec. 
45; Tourtellot v. Phelps, 4 Gray 



(Mass.) 870: Turner v. Hart, 71 
Mich. 128, 15 Am. St. Rep. 243, 
38 N. W. 890; Cornwell Mfg Co. v. 
Swift, 89 Mich. 503, 50 N. W. 1001; 
Swan V. Munch, 65 Minn. 500, 35 
L. R. A. 743, 60 Am. St. Rep. 
491, 67 N. W. 1022; Winnipiseo- 
gee Lake Co. v. Young, 40 N. H. 
420; Tabor v. Bradley, 18 N. Y. 
113, 72 Am. Dec. 498; State v. 
Suttle, 115 N. C. 784, 20 S. E. 
725; Bobo v. Wolf, 18 Ohio St. 
463; Campbell v. McCoy, 31 Pa. 
St. 263; Weed v. Keenan, 60 Vt. 
74, 6 Am. St. Rep. 93, 13 Atl. 
804. 

29. Chasemore v. Richards, 7 
H. L. Cas. 349, 2 Gray's Cas. 12; 
Whitehead v. Parks, 2 Hurl. & N. 
870; Johnstown Cheese Mfg. Co. 
V. Veghte, 69 N. Y. 16, 25 Am. Rep. 
125; Davis v. Spaulding, 157 Mass. 
431, 19 L. R. A. 102, 32 N. E. 
650. 

30. Wright v. Willams, 1 Mees. 
& W. 77; Gregory v. Bush, 64 
Mich. 37, 8 Am. St. Rep. 797, 
31 N. W. 90; Phinizy v. City 
Council of Augusta, 47 Ga. 260; 
Ross V. Mackeney, 46 N. J. Eq. 140, 
18 Atl. 685; Louisville & N. Ry. 
Co. V. Mossman, 90 Tenn. 157, 25 
Am. St. Rep. 670, IG S. W. 64. 



1236 Real Property. [§ 353 

taking water therefrom, usually by means of a pipe or 
concluit.^°^ In such a case, if the water can be regarded 
as belonging to the owner of the land, the grantor, there 
is, it appears, the grant of a profit a prendre,^^^ while if 
the water is pi(hlici juris, that is, belongs to no one, the 
grant is merely of the privilege of taking it across the 
grantor's land, of an easement merely. 

§ 353. Artificial water courses and drains. One 

may, for the purpose of procuring water from a stream 
or other source of supply, have the privilege of having 
water flow to his land over intervening land belonging 
to another, in an aqueduct or other artificial channel, 
and such a privilege constitutes an easement in the 
intervening land.^^ Likewise one may have an easement 
consisting (primarily) of the privilege of discharging 
surface or waste water, or sewage, through or on an- 
other's land.22 

In case the privilege of having water thus pass to 
or from one's own land over or through another's land 

30a. See e. g. Bissell v. Grant, Va. 474. 
35 Conn. 288; Rollins v. Blackden, 30b. Post, § 381. 
112 Me. 459, 92 Atl. 521; Good- 31. Taylor v. Corporation of St. 
rich V. Burbank, 12 Allen (Mass.) Helens. 6 Ch. Div. 264; Prescott v. 
459; Johnson v. Knapp, 146 Mass. White, 21 Pick. (Mass.) 341; Legg 
70, 15 N. E. 134; Howard v. Brit- v. Horn, 45 Conn. 409; Cole v. 
ton, 67 N. H. 484, 41 Atl. 269; Bradbury, 86 Me. 380, 29 Atl. 1097; 
Toothe V. Bryce, 50 N. J. Eq. Watkins v. Peck, 13 N. H. 360, 40 
589, 25 Atl. 182; Paine v. Chand- Am. Dec. 156; Cannon v. Atlantic 
ler, 134 N. Y. 385, 19 L. R. A. Coast Line R. Co., 97 S. C. 233, 
99, 32 N. E. 18; Woodring v. Hoi- 81 S. E. 476. 
lenbach, 202 Pa. St. 65, 51 Atl. 318; 32. Wood v. Saunders, 10 Ch. 
Chase v. Cram, 39 R. I. 83, 97 Atl. App. 582; Humphries v. Cousins, 
481; Vermont Central R. Co., v. 2 C. P. Div. 239; Brown v. Honey- 
Hills, 23 Vt. 681; Corevo v. Hoi- field, 139 Iowa, 414, 116 N. W. 
man, 82 Vt. 34, 71 Atl. 718; 731; White v. Chapin, 12 Allen 
Wheelock v. Jacobs, 70 Vt. 162, 67 (Mass.) 516; Larsen v. Peterson. 
Am. St. Rep. 659, 43 L. R. A. 53 N. J. Eq. 88, 30 Atl. 1094; 
105, 40 Atl. 41; Diffendal v. Vir- Treadwell v. Inslee, 120 N. Y. 458, 
ginia M. Ry. Co., 86 Va. 459, 10 24 N. E. 651; Sanderlin v. Baxter, 
S. E. 536; Warren v. Syme, 7 W. 76 Va. 299, 44 Am. Rep. 165. 



<^ 353] Easements. 1-37 

exists in connection with a supply of water of a tempo- 
rary character merely, the watercourse thus formed 
must necessarily be regarded as artificial rather than 
natural. When how^ever the source of supply is per- 
manent in character the question as to whether the water 
course is to be regarded as natural or artificial is by no 
means a simple one. As before remarked,^^^ if water 
flows from a permanent source of supply it might well 
be regarded as a natural watercourse through the entire 
extent of its flow, although it flows in part through an 
artificial channel, provided such channel is of a per- 
manent character. For instance, when the water of a 
natural watercourse is permanently diverted in ])art by 
the construction of a mill race or ''cut off," the flow 
of water in this new channel might well be regarded as 
part of a natural watercourse. The cases however tend 
to regard such flow as constituting, originally at least, 
an E^rtificial, rather than a natural watercourse^^-* 

Any rights or privileges as to the use of the water 
of an artificial watercourse in favor of the owners of 
land thereon or thereunder, even though bearing a super- 
ficial resemblance to the "natural rights" of riparian 
land owners, are in the nature of easements,"^ and 
there have been a number of decisions in connection 
with the question of the existence of such easements. 
As before stated, in some cases owners of land abutting 
on an artificial watercourse have been regarded as ac- 
quiring, by reason of the passage of time, on the tlieory, 
it seems, of acquiescence or estoppel, rights as to the 
water of the watercourse similar to the natural rights 
of riparian owmers on a natural watercourse.-"^ In other 
cases the existence of such easements similar to natural 
ri gilts has been based on a presumption of grants to 
that effect, as stated in the next following paragraph. 



or> 



Ante, § 3:]9, note 33a. v. Koonj Behari Pattuk, 4 App. 

34. Ante, § 3:'-9. note 33c. Cas. 121; Baily & Co. v. Clark. 

35. Woodv. Waudv3Exch.748; Son & Morland (1902) 1 Ch. 649. 
Rameshur Pershad Narain Singh 36. Ante, § 339, note 33c. 



1238 Eeai. Property. [§ 353 

When a watercourse is constructed over the lands 
of several persons, for utilization by all of them, it may 
properly be presumed, it has been held, in the absence 
of evidence to tlie contrary'', that the intention was that 
they should enjoy the same rights among themselves as 
if they were riparian owners on a natural stream,^''' 
that, in other words, there were mutual grants by them 
of easements to that extent. And there are English 
cases in which such a presumption has been applied in 
connection with a watercourse flowing in an ancient 
channel, of unkno^\^l date, but evidently of artificial 
creation, and apparently intended for the benefit of the 
various owners of the land through which it passes.^'' 

In the case of an artificial watercourse or drain 
over the land of one person, which had its inception ex- 
clusively in the needs of another person, as when one 
persoji acquires by grant a privilege to have water flow 
in a stream either to or away from his land over the 
land of another, or causes such flow over another's land 
without any privilege of so doing, the person whose 
land is thus burdened would have, in the first place, no 
right to insist on a continuance of the burden; that is, 
he would have no easement to have the flow of water so 
continued for his benefit, nor would he, not Jiaving the 
right to have it continued, have any right as to the water 
itself."" In other words, he would not have the rights, 
as to the water, of a riparian proprietor on a natural 
stream. Whether, after the flow has continued for the 
prescriptive period, he could claim an easement by pre- 
scription as to the flow of water, would seem largely to 

37. Burrows v. Lang (1901) 2 Vt. 109. 11 L. R. A. N. S. 693, 

Ch. 502; Whitmores (Edenbridge), 66 Atl. 1039. 

Ltd. V. Stanford (1909) 1 Ch. 427; 38. Roberts v. Richards. 50 L. 

Townsend v. McDonald, 12 N. Y. J. Ch. 297. Baily & Co. v. Clark, 

381; Cottel v. Berry, 42 Ore. 593, Son & Morland (1902) 1 Ch. 649. 

72 Pac. 584; Harrington v. De- 39. Burrows v. Lang (1901) 2 

Maris, 46 Ore. Ill, 1 L. R. A. N. Ch. 502; Whitmores (Edenbridge), 

S. 756, 77 Pac. 603, 82 Pac. 14; Ltd. v. Stanford (1909) 1 Ch. 427. 
Cloyes V. Middlebury Elec. Co., 80 



§ 353] Easements. 1239 

depend on the acceptance of the doctrine of reciprocal 
easements by prescription elsewhere referred to.^^ A 
somewhat analogous question has arisen, in connection 
with natural watercourses, whether after the channel has 
been changed and has so remained for a nmnber of 
years, the stream can be restored to its former channel 
as against persons wlio liave improved and utilized their 
land upon the assumption that the change would be 
permanent.^ ^ 

In England it is stated that if a watercourse is 
created for a merely temporary purpose, there is no 
room for the presumption of a grant, in favor of a 
person whose land alaits thereon, of a right as to the 
use of the water,^- but ' ' temporary purpose ' ' appears to 
include every purpose for which an individual would be 
likely to create or divert a watercourse,^^ and the result 
of the English cases seems to be, at least approximately, 
that if a watercourse is created by one for his own 
purposes, a grant by him of a right as to the water will 
not be presumed, while if created by several persons for 
their mutual benefit, across their own lands, 'mutual 
grants of rights as to the use of the water will be 
presumed.^^ 

Grants of water power. Though a riparian 



owner on a natural water course has, by the weight of 
authority, no power to confer upon another the privilege 
of appropriating water from the stream, to be consumed 
elsewhere than upon riparian land,^^ he may confer upon 
one who is not a riparian owner the privilege of using 
the water merely for temporary purposes, the water so 
used being returned to the stream in such a condition, 
and with such a degree of promptitude, as not to affect 

40. Post. § 532. Ltd. v. Stanford (1909) 1 Ch. 427. 

41. Ante, § 339(h). 43. See cases in next preceding 

42. Arkwright v. Gell, 5 Mees. note. 

& W. 203; Wood v. Waud, 3 Exch. 44. Ante, this section, note 37. 

748; Burrows v. Lang (1901) 2 Ch. 45. Ante, § 339(b), note 54. 

502; Whitmores (Edenbridge), 



1240 Real, Peoperty. [§ 353 

the lower proprietors.^*' This is frequently done for 
the purpose of furnishing power to a mill or other in- 
dustrial enterprise away from the stream, the riparian 
owner causing or allowing sufficient water to supply the 
power to pass to the desired locality through a flume 
or other conduit. Such an arrangement is usually re- 
ferred to as involving the grant of a water right or 
privilege, or of water power. What is, legally speaking, 
the specific subject of the grant in such a case is a matter 
as to which the courts give us no information, and that 
being the case, the writer ventures to express the opinion 
that when the riparian owner thus gives to a non ripa- 
rian owner the privilege of using the water of the stream 
for the furnishing of power, he grants no right in the 
water itself, but merely grants a right to conduct, or to 
have the water flow, over or through his riparian land, 
in order that it may reach the land where it is sought to 
be utilized for the creation of power. So far as concerns 
the utilization of the water in such a way, which does 
not involve any substantial diminution of the amount 
of water passing to the lower proprietors, or cause it to 
pass to them in a deteriorated condition, such lower 
proprietors cannot object, whether the utilization is by 
an upper riparian proprietor himself, or by another 
person. Since then such other person has, as against 
the lower proprietors, the privilege of so utilizing the 
water, it is necessary, in order that he actually do so, 
only that he get access to the water, and this he acquires 
from the upper riparian proprietor by means of a grant 
from the latter of the easement of conducting the water, 
or of having it flow to a named amount, over such upper 
proprietor's land. Frequently the water is conducted 
across the riparian land by the riparian proprietor 
himself, who consequently in effect furnishes the water 
to the other person at the boundary of the latter 's land, 
but even in such a case, it is conceived, the latter has 

46. Ante, § 339(c). 



§ 353] Easements. 1241 

merely the privilege of an unobstructed flow of the water 
over or through the riparian land, an easement in the 
land and not a right in the water. Indeed the riparian 
owner has himself no proprietary right in the water, 
hut merely a right to have it flow past his land as it 
has been accustomed to flow,^ ' and having no proprietary 
right in the water, he cannot create such a right in an- 
other. It may, and no doubt frequently does, occur that 
the riparian owner merely contracts to furnish water 
power to a certain extent, or to furnish a certain amount 
of water for the creation of power, and in such a case 
there appears to be no transfer whatsoever of a pro- 
prietary right, no ''grant" in any sense of the term, but 
merely a personal obligation upon such owner to see 
that the water is available for use by his neiglibor, at the 
proper height, and to the agreed extent, for the creation 
of power. 

The employment of the expression "water power" 
in this connection is in itself calculated to produce some 
confusion of ideas.^^ The expression properly means 
the energy to be produced, or capable of production, by 
the fall of water, and such potential energy would 
hardly appear to be a proper subject of grant. A 
riparian owner does not, strictly speaking, o\\ai water 
powder, but he owns the privilege of controlling the water 
at that particular point, so that he can allow it to fall in 

47. Ante, § 339(a), note 34. so developed to be considered in 

48. The expression appears to determining the taxable value of 
have occa.sioned some perplexity in non riparian land. See Blackstone 
connection with questions of tax- Mfg. Co. v. Inhabitants of Black- 
ation. The more satisfactory view stone, 200 Mass. 82, 18 L. R. A. 
in this regard is that the water (N. S.) 755, 85 N. E. 880; Union 
power is not a distinct subject Water Co. v. Auburn, 90 Me. 60, 
for assessment, but that the pos- 37 L. R. A. 651, 60 Am. St. Rep. 
sibility of utilizing the water for 40, 37 Atl. 331; Saco Water Power 
the development of power is to Co. v. Buxton, 98 Me. 295, 56 Atl. 
be considered in determining the 914; Penobscot Chemical Fibre Co. 
taxable value of the riparian land, v. Bradley, 99 Me. 263, 59 Atl. 83; 
as is the possibility of obtaining Cocheco Co. v. Strafford, 51 N. H. 
the whole or a part of the power 455; Amoskeag Mfg. Co. v. Con- 



1242 Real Property. [§ 35-1: 

such a manner, and in connection with snch appliances, 
that it will produce power capable of industrial ap- 
])lication, and, as above indicated, in making it possible 
for another person to control the water for the same 
]nirposes, by means of a grant of the privilege of 
having the water flow over his land or otherwdse, he 
effects what is ordinarily referred to as a grant of water 
power. 

In case, as frequently occurs, the riparian owner 
w^ho grants the use of the water to a non riparian owner, 
owns a dam upon the stream which serves to keep the 
water at the desired level, the grant of the use of the 
water would involve the grant not only of an easement 
to have the water pass over the riparian land, but also, 
presumably, of an easement to utilize the dam for the 
purpose of making the water available for his use.^^ 

§ 354. Support of land. As before explained, the 
owner of land has a natural right to support for his 
land from neighboring land, as has the owner of the 
surface of land from subjacent soil or minerals.^" Such 
a natural right may be extended or diminished by the 
creation of an easement in favor of one landowner by 
the other. The owner of land may accordingly grant 
to the owner of adjacent land the privilege of with- 
drawing support from the former's land,^^ and the owner 
of the surface of land may grant to the owner of sub- 
jacent soil or minerals the privilege of withdrawing 
support from the surface.''" But the intention to grant 

cord, 66 N. H. 562, 32 L. R. A. 73 Conn. 294, 47 Atl. 328; Moline 

621, 34 Atl. 241; BeHows Falls Water Power Co. v. Cox, 252 111. 
Canal Co. v. Rockingham, 37 Vt. 348, 96 N. E. 1044) is not readily 

622. The propriety of referring to apparent. 

water power, that is, the privilege 49. See Trudeau v. Field, 69 

of controlling the fall of water by Vt. 446, 38 Atl. 162. 

reason of the location of one's 50. Ante, §§ 345, 346. 

land, as having a distinct situs for 51. Ryckman v. Gillis, 57 N. Y. 

the purpose of taxation (as in 68. 

Quinnebaug Reservoir Co. v. Union 52. Rowbotham v. Wilson, 8 H. 



^ 355] 



Easements. 



1243 



.(or reserve) an easement of this character nnist clearly 
appear, and it cannot be inferred from general langnage, 
contained in the conveyance by which the ownership 
of the minerals is severed from that of the surface, 
although by that language a right to extract all the 
mnierals is apparently recognized.^^ 

§ 355. Support of buildings. The owner of land 
may acquire from the owner of adjoining land an ease- 
ment consisting of a right to support for buildings on 
his land from such adjoining land,^* or from adjoining 
buildings,^^ neither of wliich exists as a natural right. 



L. Cas. 362 ; Aspden v. Seddon, 10 
Ch. App. 394; Wilms v. Jess, 94 lU. 
464, 34 Am. Rep. 242; Scranton 
V. PhUlips, 94 Pa. St. 15; Miles 
V. Pennsylvania Coal Co., 217 Pa. 
St. 449, 10 Ann. Cas. 871, 66 Atl. 
764; Kirwin v. Delaware L. & W. 
R. Co., 249 Pa. 98, 94 Atl. 468. 
That such a privilege of removing 
surface support is properly re- 
garded as an easement, see Pro- 
fessor Hohfield's luminous article, 
27 Yale Law Journ. 66. 

53. Dixon v. White, 8 App. Cas. 
883; Sloss Sheffield Steel & Iron 
Co. v. Sampson, 158 Ala. 590, 
48 So. 493; Wilms V. Jess, 94 111. 
464,34 Am. Dec. 242; Lloyd V. Cat- 
linCoalCo., 210 111. 460, 71 N. E. 
335; Paull v. Island Coal Co.. 44 
Ind! App. 218, 88 N. E. 959; Collins 
V. Gleason Coal Co , 140 Iowa, 114, 
18 L. R. A. N. S. 736, 115 N. W. 
479; Walsh v. Kansas Fuel Co., 
91 Kan. 310, 50 L. R. A. N. S. 
686, 137 Pac. 941 ; Piedmont etc. 
Coal Co. V. Kearney, 114 Md. 49(;, 
79 At. 1013; Erickson v. Michigan 
Land & Iron Co., 50 Mich. 604, 16 
N. W. 161; Burgner v. Humph- 
reys, 41 Ohio St. 340; Robertson 



V. Youghiogheny River Coal Co., 
172 Pa. St. 566, 33 Atl. 706; Wea- 
ver V. Berwind-White Coal Co., 216 
Pa. 195, 65 Ala. 545; Berkey v. 
Berwind-White Coal Co., 220 Pa. 
651, 16 L. R. A. X. S. 851, 60 
Atl. 329; Stongap Colliery Co. v. 
Hamilton, 119 Va. 271, 89 S. E. 
305; Catron v. Smith Buller Min. 
Co.. 181 Fed. 941, 104 C. C. A. 
But see Griffin v. Fairmont Coal 
Co., 59 W. Va. 480, 2 L. R. A. 
N. S. 1115, 5;; S E. 24; Kuhn v. 
Fairmont Coal Co., 179 Fed. 191, 
102 C. C A. 457. 

54. Rigby v. Bennett, 21 Ch. 
Div. 559; TunstaU v. Christian, 
80 Va. 1, 56 Am. Rep. 581; Lasala 
V. Holbrook, 4 Paige (N. Y.) 173. 

55. Angus V. Dalton, 4 Q. B. 
Div. 162; Dalton v. Angus, 6 App. 
Cas. 740; Murchie v. Black, 19 C. 
B. (N. S.) 190; Richards v. Rose. 
9 Exrh. 218; Lemaitre v. Davis, 
19 Ch. Div. 281; City of Quincy 
v. Jones. 76 111. 231. 20 Am. Rep. 
243; Pierce v. Dyer, 109 Mass. 
374, 12 Am. Rep. 716; Partrid.s;p 
V. Gilbert, 15 N. Y. 601, 69 Am. 
Dec. 632. 



1244: Real Pkoperty. [§ 356 

In cases in whicli separate floors of a building belong" 
to different persons, tliere is a right of support for the 
upper floor or floors from the lower part of the building, 
and this right the o^\^ler of the latter can in no way 
impair, there being an implied grant to this effect in the 
conveyance of such upper floor or floors. ^*^ 

§ 356. Party walls. A^'j^arty wall" is a division 
wall between two buildings belonging to different 
persons, in which each of such persons has certain 
rights of use or ownership, or both. The term, as stated 
in a modem English case,^"^ has been used in connection 
with division walls in four different senses. It may refer 
to (1) a division wall of which, with the land beneath. it, 
the owners of the. two adjoining buildings are tenants in 
common ;^^ (2) a wall divided longitudinally into two 
strips, each of the adjoining owners owning the strip 
on his side, and having a right to use that strip only;^^ 
(3) a wall located entirely upon the land of one of the 
adjoining owners, and belonging entirely to him, but 
subject to an easement in the other to have it maintained 
as a division wall between the two properties and to 
use it for purposes of support ;^^ or (4) a wall divided 

56. McConnel v. Kibbe, 33 111. 1 Ch. 508; Wiltshire v. Sidford, 1 
175, 85 Am. Dec. 265; Rhodes v. Man. & R. 404; Montgomery v. 
McCorm.ack, 4 Iowa, 375; Graves Trustees of Masonic Hall. 70 Ga. 
V. Berdan, 26 N. Y. 501; Harris 38. See Eherred v. Cisco, 4 Sandf. 
V. Ryding, 5 Mees. & W. 60. (N. Y.) 480. 

But the owner of the upper 59. Matts v. Hawkins, 5 Taunt, 

floor has, it seems, no right to de- 20; Murly v. McDermott, 8 Adol. 

mand that the owner of the lower & E. 138. 

keei) it in repair for the purpose 60. Tate v. Fratt. 112 Cal. 613, 

of supporting the former. See 44 pac. 1061; Price v. McConnell. 

l)ost. § 370. note 55. 27 111. 255; Molony v. Dixon. 65 

57. Watson v. Gray. 14 Ch. Div. Iowa. 1.36, 54 Am. Rep. 1, 21 N. 
192, 2;er Fry, J. W. 488; Henry v. Kock, 80 Ky. 

58. It is used in this sense in 391. 44 Am. Rep. 484; Dorsey v. 
the following cases; Cubitt v. Habersack, 84 Md. 117, 35 Atl. 
Porter. 8 Barn. & C. 257; Mayfair 96; Rogers v. Sinsheimer, 50 N. 
Property Co. v. Johnston (1894) y. 646; Nash v. Kemp, 49 How. 



§ 356] Easements. 1245 

longitudinally in to two strips, each of tlic adjoining 
owners owning the strip on his side only, but having 
an easement in the other strip for the purposes of the 
support of his building.*'^ 

In England, a division wall is presumed to belong 
to the first of the above clases.^- In -this country, no 
such presumption has ever been recognized, and a party 
wall almost invariably belongs to the fourth class 
mentioned above, except in the few cases in which it 
belongs to the third class as having been built entirely 
on the land of one proprietor. For this reason, it seems 
proper to consider the subject of party walls as a part 
of the law of easements, though a party wall of the 
first or second class involves no application of that law. 

A wall may be a party wall for part of its height, 
and, as to the balance, a wall belonging entirely to one of 
the two adjoining ow^ners, without any easement of 
support in favor of the other.*'^ 

If one of two adjoining owners, in building a wall, 
places it in part upon the land of the adjoining owner, 
whether Avith or without the assent of the latter, the 

Pr, (N. Y.) 522; Western Bank's Curtis, 50 N. Y. 639, 10 Am. Rep. 

Appeal, 102 Pa. St. 171; Bright 545; Odd Fellows' Hall Ass'n of 

V. Allan, 203 Pa. St. 394, 93 Am. Portland v. Hegele, 24 Ore. 16, 

St. Rep. 769, 53 Atl. 251; Duns- 32 Pac. 679; Sanders v. Martin, 

comb V. Randolph, 107 Tenn. 89, 2 Lea (Tenn.) 213, 31 Am. Rep. 

89 Am. St. Rep. 915, 64 S. W. 598; Davenhauer v. Devine, 51 

21. Tex. 480, 32 Am. Rep. 627; And- 

61. Graves v Smith, 87 Ala. rae v. Haseltine, 58 Wis. 395, 46 

450, 13 Am. St. Rep. 60, 5 L. R. Am. Rep. 635, 17 N. W. 18. 

A. 298, 6 So. 308; Ingals v. Pla- 62. Cubitt v. Porter, 8 Barn. & 

mondon, 75 Hi. 118; Block v. C. 257; Watson v. Gray, 14 Ch. 

Isham, 28 Ind. 37, 92 Am. Dec. Div. 192. 

287; Hoffman v. Kuhn, 57 Miss. 63. Weston v. Arnold, L .R. 8 

746, 34 Am. Rep. 491; Shiverich Ch. 1084; Price v. McConnell, 27 

V. R. .1. Gunning Co., 58 Neb. 29, 111. 255; Ringgold Lodge v. De 

78 N. W. 460; Partridge v. Gil- Kalb Lodge, 157 Ky. 203, 162 S. W. 

bert, 15 N. Y. 601, 69 Am. Vec. 1111; Barry v. Kdlavitch, 84 Md. 

632; Hendricks v. Stark, 37 N. Y. 95, 33 L. R. A. 294, 35 Atl. 170. 
106, 93 Am. Dec. 549; Brocks v. 
2 R..P.— 4 



1246 



Real Peopeety. 



[§ 356 



courts will not ordinarily recognize any liability on the 
part of the latter, by reason of his subsequent user of 
the wall, to the builder.*'^ A promise by him to pay 
for such use as lie may make of the wall may, however, 
it has been decided, be inferred from the fact of his 
acquiescence in its construction by the other in part on 
his land, with knowledge that the latter expects payment 
for its use,*^^ and there are occasional decisions and 
suggestions to be found that, without reference to the 
circumstances under which the wall was erected, the non 
lAiilder is bound to contribute to the cost of its erection 
upon making use thereof/''" There is frequently an ex- 



64. Antimarchi v. Russell, 63 
Ala. 356, 35 Am. Rep. 40; Prelss 
V. Parker, 67 Ala. 500; Orman v. 
r>ay, 5 Fla. 385; Huck v. Flentye, 
80 111. 258; Long v. Smyre, 87 
Kan. 182, 123 Pac. 765; Wiikins 
V. Jewett, 139 Mass. 29, 29 N. E. 
214; Allen v. Evans, 161 Mass. 
485, 37 N. E. 571; Sherred v. 
Cisco, 4 Sandf. (N. Y.) 480; Grif- 
fin V. Sansom, 31 Tex. Civ. App. 
560, 72 S. W. 864; List v. Horn- 
brook, 2 W. Va. 340. See 21 Harv. 
Law Rev. at p. 222. 

65. Huck V. Flentye. 80 111. 2.3S; 
Wickersham v. Orr, 9 Iowa, 253, 
74 Am. Dec. 348; Day v. Caton, 
119 Mass. 513, 20 Am. Rep. 347; 
Griffin v. Sansum, 31 Tex. Civ. 
App. 560, 72 S. W. 864. See 
Bank of Escondido v. Thomas, 
— Cal. — , 41 Pac. 462; Zeinin- 
ger V. Schnitzler, 48 Kan. 63. 28 
Pac. 1007. 

It has been decided that the 
fact that the wall, though built 
on A's land, projected over B's 
land, precluded A from obtain- 
ing an injunction against the use 
of the wall by B. Guttenberger 



V. Woods. 51 Cal. 523. On the 
other hand it was held that the 
fact that the foundation of ths 
wall extended under ground into 
B's land, all the wall above the 
ground being on A's land, gave 
B no right to use the wall with- 
out making compensation. Tru- 
lock V. Parse. 83 Ark. 149, 11 L. 
R. A. X. S. 924, 103 S. W. 166. 

66. Zugenbuhler v. Gilliam, 3 
Iowa, 371 ; Spaulding v. Grundy, 
31 Ky. Law Rep. 951, 104 S. W. 
293; Howze v. Whitehead. 93 Miss. 
578, 46 So. 401; Reid v. King, 
158 N. C. 85, 73 S. E. 168; 
Sanders v. Martin, 2 Lea (Tenn.) 
213. 

The mere fact that one. In 
contructing a building extending 
to the edge of hits land,, con- 
structs no wall along such edge, 
utilizing the wall of his neigh- 
bor for protection on that side. 
without however in any way cut- 
ting or breaking into it, does not 
give the neighbor a right of action. 
Nolan V. Mendere. 77 Tex. 565, 19 
Am. St. Rep. 801, 14 S. W. 167. 
See Bisquay v. Jennelot, 10 Ala. 



§ 357] Easements. 1247 

press agTeement to this effect,''" and occasionally a 
statute imposes a pecuniary liability upon one making 
use of a wall placed partly on his land.^"'' 

§ 357. Partition fences. There is generally, at 
common law, no obligation upon a landowTier to maintain 
a partition fence between his land and the land ad- 
joining.''^ But there may be an easement, created by 
grant or prescription, in favor of one piece of land, by 
which the owner of land adjacent thereto is compellable 
to maintain a partition fence between them."^ Such an 
easement is sometimes referred to as a "spurious" 
easement, since a true easement, it is considered, cannot 
involve a duty of active performance on the part of 
the owner of the land subject to the easement, the 
servient tenement. An easement involving a right to 
the maintenance of a partition fence is to be distinguish- 
ed from a right to have it maintained by reason of a 
contract to that effect.'^ ^ 

In many states there are statutes providing for the 
construction of a partition fence between adjoining- 
pieces of land at the joint expense of the owners or 
occupants thereof.'^ By these statutes, each adjoining 
owner or occupant is required not only to join in the 

245, 44 Am. Dec. 483. But he Castner v. Riegel, 54 N. J. Law, 

cannot cut or break into the waU, 498, 24 Atl. 4S4; Adams v. Van 

it not being a party wall. Sim- Alstyne, 25 N. Y. 232. 

onds V. Shields, 72 Conn. 141 44 70. D'Arcy v. Miller, 86 111. 102, 

Atl. 29. 29 Am. Rep. 11; Bruner v. Pal- 

67. Post, § 361, notes 37-52, § mer, 108 Ind. 397; Lawton v. 
393. Fitchburg R. Co., 8 Cush. (Mass.) 

67a. Post, § 365, notes 11-21. 230, 45 Am. Dec. 753; O'Riley v. 

68. Star v. Rookesby, 1 Salk. Diss, 41 Mo. App. 184; Harrlman 
323; Moore v. Levert, 24 Ala. 310; v. Park, 55 N. H. 471; Scott v. 
Rust V. Low, 6 Mass. 90. And Grover, 56 Vt. 499, 48 Am. Rep. 
see ante, § 298. 814. 

69. Star v. Rookesby, 1 Salk. 71. 1 Stimson's Am. St. law, 
335; Lawrence v. Jenkins, L. R. § 2182; 12 Am. & Eng. Enc. Law, 
8 Q. B. 274; Bronson v. Coffin, 1050 et scq.. Ante, § 298. 

108 Mass. 175, 118 Mass. 15C; 



1248 Eeal Property. [§ 357 

construction of the fence, but also in its maintenance 
and repair,"^ and neither can, without the consent of 
the other, remove any part of the fence, except, in 
some states, at certain periods of the year, or after 
a prescribed notice to the other proprietor.'" 

When one owner of land desires to compel con- 
tribution by an adjacent owner of part of the cost of a 
partition fence under the statute, and the latter re- 
fuses to make contribution, the former is usually ex- 
pressly authorized to apply to local officers, called 
"fence viewers," for a determination of the proportions 
to be built and maintained b}?- each, or, in case the fence 
is already erected, for an allowance of the amount to be 
contributed by the party in default.^^ These statutes 
usually authorize one thus to compel his neighbor to 
join in the erection and maintenance of the fence only 
in case the latter 's land is improved,'^ ^ or occupied,^*^ 
or inclosed,'^^ and sometimes only when the land is 
used or occujDied "otherwise than in common," this 
meaning land, it is said, which is segregated from other 
land by inclosure, or by use of an exclusive nature.'^^ 

An owner of land who is bound, by grant or pre- 
scription, or by reason of proceedings under the 

72. 1 Stimson's Am. St. Law, § Y.) 320; Shriver v. Stephen.3, 20 
2185; Guyer v. Stratton, 29 Conn. Pa. St. 1.38; Farr v. Spain, 67 
421; Rhodes v. Mummery, 48 Ind. Wis. 631, 31 N. W. 21. 

216; Barrett v. Dolan, 71 Iowa. 75. Wiggin v. Baptist Soc, 43 

94, 32 N. W. 189; Stephens v. N. H. 260. 

Shriver, 25 Pa. St. 78; Carpenter 76. Maudlin v. Hauscombe, 12 

V. Cook, 67 Vt. 102, 30 Atl. 998. Colo. 204, 20 Pac. 619; Rust v. Low 

73. 1 Stimson's Am. St. Law, § 6 Mass. 90. 

2184. 77. Kent v. Lix, 47 Mo. App. 

74. 1 Stimson's Am. St. Law, § 567; Boyd v. Lammert, 18 111. App. 
2182; Gonzales v. Wasson, 51 Cal. 632; Boenig v. Hornberg, 24 Minn. 
295; Thompson v. Bulson, 78 111. 307. 

277; Farmer v. Young, 86 Iowa. 78. Hewit v. Jewell, 59 Iowa, 

382, 53 N. W. 279; Briggs v. 87, 12 N. W. 738 ; Jones v. Perry, 

Haynes, 68 Me. 535; Burr v. Kam- 50 N. H. 134. See Perkins v. Per- 

er, 12 Neb. 483, 11 N. W. 741; kins, 44 Barb. (N. Y.) 134. 
Bronk v. Becker, 17 Wend. (N. 



§ 358] Easements. 1249 

statute, to maintain a partition fence, or a part thereof, 
is liable to the adjoining proprietor for any damage 
that may occur owing to his failure properly to main- 
tain it, there being usually an express provision to 
this etfect in statutes providing for partition fences."^ 
He has no right to recover against the adjoining pro- 
prietor for a trespass by the latter 's cattle which re- 
sults from his own failure to comply with his ol^ligation 
to fence;'*'' but his obligation is to his adjoining owner 
only, and to those lawfully using the latter 's land, and 
he may recover against others whose cattle trespass 
on the adjacent land, and pass therefrom onto his land, 
although they do so owing to his own failure to fence. ^^ 

§ 358. Rights of way. A right of way is primarily 
a privilege to pass over another's land. Such a right 
never exists as a natural right, but must always be 
created by a grant or its equivalent. A right of way may 
be either public or private, — that is, it may be a right 
of passage of which every individual may avail himself, 
or it may exist for the benefit of one individual or class 
of individuals. Public rights of way are not, properly 
speaking, easements, though they are frequently re- 
ferred to as such, and they will be more particularly 
discussed in another connection.**- Private rights of 
way, which constitute one of the most important classes 
of easements, will be hereafter discussed in connection 

79. Powell V. Salisbury, 2 239; Rangier v. McCreight, 27 Pa. 
Younge & J. .'591; Gate v. Gate, 50 St. 95 Roach v. Lawrence, 56 Wis. 
N. H. 144, 9 Am. Rep. 179; Saxton 478, 14 N. W. 595. 

V. Bacon, 31 Vt. 540; 1 Stimson's 81. Lord v. Wormwood, 29 Me. 

Am. St. Law, § 2189 (B). 282, 50 Am. Dec. 586; Rust v. Low, 

80. D'Arcy v. Miller, 86 111. 102, 6 Mass. 90; Lyons v. Merrick, 105 
29 Am. Rep. 11; Baynes v. Chas- Mass. 71; Lawrence v. Gombs, 37 
tain, 68 Ind. 376"; Barrett v. N. H. :'.31, 72 Am. Dec. 3;i2; Chapin 
Dolan, 71 Iowa, 94, 32 N. W. 189. v. Sullivan R. Go., 39 N. H. 53, 75 
Tonawanda R. Co. v. Monger, 5 Am. Dec. 207. 

Denio (N. Y.) 255, 49 Am. Dec. 82. Post, § 417. 



1250 Real, Property. [§ 359 

with the acquisition, user, and extinguishment of ease- 
ments. ""'^ 

A railroad right of way, so called, is frequently more 
than a mere right of way, it being a strip of land 
aetnally owned by the railroad company, on which the 
tracks are located. In so far as the railroad company 
has merely an easement of a right of way, that is, the 
privilege of having its trains pass over another's land, 
it is necessaril}" an easement in gross and not an ease- 
ment appurtenant. ^^^ 

Frequently a right of way exists, not directly over 
the soil of another's land, but over a hallway, passage 
way or stairway in a building on another's land.^^" 
Such a right of way frequently exists by reason of the 
leasing of individual rooms or suites in a building, the 
owner of the building retaining control of the hallways 
and stairways, subject, however, to a right of way over 
such hallways and stairways, in favor of each lessee of 
a room or suite. ^^*^ 

§ 359. Pews and burial rights. The character of 
the rights enjoyed by the holder of a church pew has 
been the subject of numerous decisions in this country', 
which are, how^ever, not entirely harmonious in charac- 
ter, and are frequently unsatisfactory iu their discus- 
sion of the principles involved.^^^ In England, there 
may be an easement, consisting of the privilege of oc- 
cupying a particular pew in the parish church, an- 
nexed to a particular house or messuage, this apparent- 
ly not differing in nature from any other easement, the 
house or messuage constituting the dominant tenement, 

83. Post, §§ 3S1-380. Mich. 578, 147 N. W. 481. 

83a. See 2 Lewis, Em. Domain, 83c. Ante, § 51 (d), note 97. 

§§ 451, 468; Elliott, Railroads, § 83d. See Article by Carl Zoll- 

938. man, Esq., "Pew Rights in Amer- 

83b. See e. g. Bale v. Todd, 123 ican Law," 25 Yale Law Journ. 

Ga. 99, 50 S. E. 990; Teachout v. 467, incorporated in "American 

Capital Lodge, 128 Iowa, 380, 104 Civil Church Government, ch. 15, 

N. W. 440; Gates v. Sebald, 180 by that author. 



§ 360] 



Easements. 



1251 



and the cliiircli the servient tenement. ^^ In this country 
it is generally recognized that a "pew holder" is not, 
as such, a part owner of the church edifice, or of the 
land on which it stands, these belonging usually to the 
ecclesiastical authorities, the church corporation, or 
trustees.**^ He is sometimes said to have an easement 
or "incorporeal, hereditament,"^^ but if he has an 
easement, it is an easement in gross, since in this 
country a pew is never appurtenant to a particular 
house or messuage. Pews have also been said to be 
"real estate, "^^ but this can be so only when one's in- 
terest is, as regards its possible duration, equivalent 
to an estate of freehold. If one's interest in a pew is 



84. Hinde v. Chorlton, L. R. 2 
C. P. 104; Brumfitt v. Roberts, L. 
R. 5 C. P. 224; PhiUips v. Halliday 

[1891] App. Cas. 228. 

85. First Baptist Soc. in Leeds 
V. Grant, 95 Me. 245; Re New 

South Meeting House in Boston, 
1.3 Allen (Mass.) 497; Sohier v. 
Trinity Church, 109 Mass. 1; 
Jones V. Towne, 58 N. H. 462, 42 
Am. Rep. 602; Presbyterian 
Church in Newark v. Andruss 21 
N. J. Law, 325; Freligh v. Piatt, 
5 Cow. (N. Y.) 494; Trustees of 
Ithaca First Baptist Church v. 
Bigelow, 16 Wend. (N. Y.) 28; 
Wheaton v. Gates, 18 N. Y. 404; 
First Baptist Church in Hartford 
V. Witherell, 3 Paige (N. Y.) 226, 
24 Am. Dec. 223; Kincaid's Ap- 
peal, 66 Pa. St. 411, 5 Am. Rep. 
377; Howe v. Stevens, 47 Vt. 262. 

86. First Baptist Soc. in Leeds 
V. Grant, 59 Me. 245; Presbyterian 
Church In Newark v. Andruss, 21 
N. J. Law, 325; Gamble's Succes- 
sion, 23 La. Ann. 9. See Wash- 
burn, Easements, 682. 

It has been occasionally stated. 



rather ambiguously, that the 
"owners of pews have an exclusive 
right to their possession and oc- 
cupation for the purposes of public 
worship, not as an easement, but 
by virtue of their individual 
right of property therein, de- 
rived, perhaps, in theory at least, 
from the corporation represented 
by the trustees who are seised 
and possessed of the temporalities 
of the church." Shaw v. Bever- 
idge, 3 Hill (N. Y.) 26, 38 Am. 
Dec. 616; O'Hear v. De Goes- 
briand, 33 Vt. 606, 80 Am. Dec. 
652. 

87. Price v. Lyon, 14 Conn. 280; 
Attorney General v. Proprietors 
of Federal St. Meeting House, 3 
Gray (Mass.) 1; Kimball v. Sec- 
ond Congregational Parish in 
Rowley, 24 Pick. (Mass.) 347; 
Trustees of Ithaca First Baptist 
Church V. Bigelow. 16 Wend. (N. 
Y.) 28; Viele v. Osgood, 8 Barb. 
(N. Y.)130; Howe v. Stevens, 47 
Vt. 262; Barnard v. Whipple, 2a 
Vt. 401, 70 Am. Dec. 422, 



1252 Real, Pboperty. [§ 359 

limited to a term of years, or is "from year to year," 
it would seem to be at most personal property- merely.*** 
Frequently, if not ordinarily, at tlie present day, es- 
pecially in cburcli edifices of recent construction, a pew 
holder, so called, would appear to be in the position 
merely of a licensee, he paying so much periodically for 
the privilege of occupying the pew. 

As to the rights of the person entitled to use a 
pew, upon the destruction of the church edifice or the 
sale thereof, the cases are not in entire accord. The 
view more generally adopted is that the church cor- 
poration or trustees are liable to him for the value of 
his right if the building is destroyed or sold without 
an absolute necessity for such action, while there is no 
such liability in case such necessity exists. ^'^ There are 
occasional suggestions that the pew owner would have 
a right to be allotted a pew in a new edifice substituted 
for the old.'''^ 

Burial rights. The privilege of interring 

bodies in a burial ground belonging to a corpora- 
tion or association,^'-'' has been referred to as an 

88. See McNabb v. Pond, 4 Gates, 18 N. Y. 395; Cooper v. 
Bradf. (N. Y.) 7; Johnson v. Cor- Trustees of First Presbyterian 
bett, 11 Paige (N. Y.) 265, 276; Church, 32 Barb. (N. Y.) 222; 
Inhabitants of First Parish v. Mayor v. Temple Beth El, 52 N. 
Spear, 15 Pick. (Mass.) 144; Y. St. Rep. 638, 23 N. Y. Supp. 
Trustees of the Third Presbyter- 1013; Kincaid's Appeal, 66 Pa. St. 
ian Congregation v. Andruss, 21 411, 422; Kellogg v. Dickinson, 18 
N. J. Law, 325. In Pennsylvania, Vt. 266. 

the right to a pew is considered 90. Daniel v. Wood, 1 Pick, 

to be personal property. Church (Mass.) 102; Mayor v. Temple 

V. Wells' Ex'rs, 24 Pa. St. 249. Beth El, 52 N. Y. St. Rep. 638, 23 

And so by statute in Massachu- N. Y. Supp. 1013. 

setts. Rev. Laws 1902, c. 36, § 90a. As to the nature of a 

38; and New Hampshire Pub. right of interment in land be- 

Stat. 1901 eh. 220, § 14. longing to an individual, see 

89. Gorton v. Hadsell, 9 Cush. Woolridge v. Smith, 243 Mo. 190, 
(Mass.) 508; Sohier v. Trinity 40 L. R. A. (N. S.) 752, 147 S. W. 
Church, 109 Mass. 1; Wlieaton v 1019; Hines v. State, 126 Tenn. 



§ 359] 



Easements. 



1253 



easement,^^ as a usufructuary right,"- and as a license.''^ 
The question of the nature of the interest of a lot holder, 
as he is frequently termed, is dt-pendent primarily upon 
the intention manifested by the instrument by which 
it is created or evidenced, and the nature of such in- 
strument. It may occur that a lot is conveyed outriglit 
to one for burial purposes, he acquiring an estate there- 
in to endure so long as it is used, or capable of use, for 
burial purposes.^^ This, however, is unusual. 

A privilege of interring bodies in a cemetery lot 
has been regarded as passing by descent.'^-'* Whether it 
could ordinarily be devised or transferred inter vivos 
to persons outside the family would appear to depend 
on the provisions of the instrument under which it is 
held and the regulations of the cemetery corporation 
or association.^*^ 



1, 42 L. R. A. (N. S.) 1138, 149 
S. W. 1058. See also as to private 
burying grounds within tlie con- 
fines of another's land. Brown v. 
Anderson, 88 Ky. 577, 11 S. W. 
C07; Mitchell v. Thorne, 134 N. 
Y. 536, 30 Am. St. Rep. 699, 32 
N. E. 10. 

91. Hook V. Joyce, 94 Ky. 450, 
21 L. R. A. 96, 22 S. W. 651; 
Jacobs V. Congregation Children 
of Israel, 107 Ga. 518, 73 Am. St. 
Rep. 141, 33 S. E. 853; Richards 
V. Northwest Protestant Dutch 
Church, 32 Barb. (N. Y.) 42, 20 
How. Pr. 317. 

92. Buffalo City Cemetery v. 
City of Buffalo, 46 N. Y. 503; 
Windt V. German Reformed 
Church, 4 Sandf. Ch. (N. Y.) 471; 
Price V. Methodist Church, 4 Ohio 
415. 

93. Dwenger v. Geary, 113 Ind. 
106, 14 N. E. 903; Partridge v. 
First Independent Church, 39 



Md. 631; Rayner v. Nugent, 60 
Md. 515; Gowen v. Bessey, 94 
Me. 114, 46 Atl. 792; Page v. 
Symonds, 63 N. H. 17, 56 Am. Rep. 
481; McGuire v. Trustees of St. 
Patrick's Cathedral, 54 Hun (N. 
Y.) 207; Kincaid's Appeal, 66 Pa. 
St. 420, 5 Am. Rep. 377. 

94. Lakin v. Ames, 10 Cush. 
(Mass.) 198; Silverwood v. Lat- 
robe, 68 Md. 620, 13 Atl. 161; 
New York Bay Cemetery Co. v. 
Buckmaster, 49 N. J. Law 449, 9 
Atl. 591; Matter of Brick Presby- 
terian Church, 3 Edw. Ch. (N. 
Y.) 155. 

95. Jacobus v. Congregation 
Children of Israel, 107 Ga. 518. 
73 Am. St. Rep. 141, 33 S. E. 853; 
Matter of Brick Presb. Church, 3 
Edw. (N. Y.) 155; Gardner v. 
Swan Point Cemetery, 20 R. I. 
646, 78 Am. St. Rep. 807, 40 Atl. 
871. 

96. See Pearson v. Hartman, 



1254 



Real, Peopekty. 



[§ 360 



Tlie corporation or society controlling the cemetery 
may make regulations as to the mode and limits of the 
use of lots therein for burial,'^" but such regulations 
must not be unreasonable or arbitrary.^* All rights 
in the persons entitled to use the burial ground are 
terminated by the necessary abandonment of the use of 
the land for burial purposes.^^ 

In so far as the person to whom the privilege of 
burial is granted, has no more than an easement or 
usufructuaiy right, he does not have the possession of 
the burial lot.^ Somewhat strangely, however, it has 
been decided or assumed, in several cases, that he may 
maintain trespass qimre clansum fregit against one 
interfering with his right.^ 

§ 360. Miscellaneous easements. In addition to 
easements of the classes above referred to, numerous 



100 Pa. 84; Dickens v. Cave HiU 
Cemetery Co., 93 Ky. 385, 20 S. 
W. 282. That interments have 
been actually made has been re- 
garded as precluding a sale of the 
lot. Thompson v. Hickey, 8 Abb. 
N. Cas. 159, 59 How. Pr. (N. Y.) 
434; Schroeder v. Wanzor, 36 
Hun. (N. Y.) 423. 

97. Dwenger v. Geary, 113 Ind. 
106, 14 N. E. 903; Farelly v. 
Metairie Cemetery Ass'n, 44 La. 
Ann. 28, 10 So. 386. 

98. Rosehill Cemetery Co. v. 
Hopkinson, 114 111. 209, 29 N. E. 
685; Mount Moriah Cemetery 
Ass'n V. Com., 81 Pa. St. 235, 22 
Am. Rep. 743; Silverwood v. Lat- 
robe, 68 Md. 620, 13 Atl. 161. 

99. Partridge v. First Inde- 
pendent Church, 39 Md. 631; Page 
V. Symonds, 63 N. H. 17, 56 Am. 
Rep. 481; Richards v. North West 
Dutch Church, 32 Barb. (N. Y.) 



42; Went v. Methodist Protestant 
Church, 80 Hun. 266, 150 N. Y. 
577, 44 N. E. 1129; Price v. Metho- 
dist Episcopal Church, 4 Ohio 515; 
Kincaid's Appeal, 66 Pa. St. 411, 
5 Am. Rep. 377; Craig v. First 
Presbyterian Church, 88 Pa. St. 
42, 32 Am. Rep. 417. 

1. That he cannot maintain 
ejectment, see Hancock v. Mc- 
Avoy, 151 Pa. 460, 31 Am. St. Rep. 
774, 18 L. R. A. 781, 25 Atl. 47; 
Stewart v. Garrett, 119 Ga. 386, 
64 L. R. A. 99, 100 Am. St. Rep. 
179, 46 S. E. 427. 

2. Bessemer Land, etc., Co. v. 
Jenkins, 111 Ala. 135, 56 Am. St. 
Rep. 26, 18 So. 565; Pulsifer v. 
Douglass, 94 Me. 556, 53 L. R. A. 
238, 48 Atl. 118; Smith v. Thomp- 
son, 55 Md. 5, 39 Am. Rep. 409; 
Meagher v. Driscoll, 99 Mass. 281, 
96 Am. Dec. 759; Thirkfield v. 
Mountain View Cemetery Ass'n, 



§ 360] 



Easements. 



1255 



other easements liave been judicially recognized. Among 
sucli may be mentioned the privilege of maintaining 
upon another's land a stairway,^ a reser^'oir/ a sign- 
board,^ of utilizing another's dock," of placing a sign on 
a building," of placing clothes lines^'*' on or over an- 
other's land, of having one's building overhang another's 
land,'^ of s^\'ingin2' shutters thereover,^^ and even of 
extending one's building or porch upon another's land.^- 
Also a privilege of placing logs and lumber,^^ or mer- 



12 Utah, 76, 41 Pac. 564; HoU- 
man v. Platteville, 101 Wis. 94, 70 
Am. St. Rep. 899, 76 N. W. 1119. 

3. Moon V. Mills, 119 Mich. 298, 
75 Am. St. Rep. 390, 77 N. W. 
926. 

4. Riefler & Sons v. Wayne 
Storage Water Power Co., 232 Pa. 
282, 81 Atl. 300. 

5. Rex V. St. Pancras Assess- 
ment Committee, 2 Q. B. D. 581, 
586; Borough Bill Posting Co. v. 
Levy, 144 N. Y. App. Div. 784, 129 
N. Y. Supp. 740. 

6. Sargent v. Ballard, 9 Pick. 
(Mass.) 251; Nichols v. Boston, 
98 Mass. 42, 93 Am. Dec. 132. Or 
an easement of utilizing a canal 
basin. International Pottery Co. 
V. Richardson, 63 N. J. L. 248, 43 
Atl. 692. 

7. Moody V. Steggles, 12 Ch. 
D. 261; Levy v. Louisville Gun- 
ning System, 121 Ky. 510, 1 L. R. 
A. (N. S.) 359, 89 S. W. 528. 

8-9. Drewell v. Towler, 3 
Barn. & Ad. 735; Steiner v. Peter- 
man, 71 N. J. Eq. 101, 63 Atl. 
1102. 

10. Ingals V. Plamondon, 75 
111. 118; Taylor v. Wright, 76 N. 
J. Eq. 121, 79 Atl. 433; First Bap- 
tist Society v. Wetherell, 34 R. 1. 



155, 82 Atl. 1061. 

11. Richardson v. Pond, 15 
Gray (Mass.) 387. 

12. Ensign v. Colt, 75 Conn. 
Ill, 52 Atl. 829, 946; Wilson v. 
Riggs, 27 App. D. C. 550; Jeffrey 
v. Winter, 190 Mass. 90, 76 N. 
E. 282; Smith v. Lockwood, 100 
Minn. 221, 110 N. W. 980; Taylor 
V. Wright, 76 N. J. Eq. 121, 99 
Atl. 433; Ruffin v. Seaboard Air 
Line Ry., 151 N. C. 330, 66 S. E. 
317. 

So an easement of planning and 
maintaining a monument on an 
individuals land was recognized in 
Wilson V. Board of Chosen Free- 
holders of Gloucester County, 83 
N. J. Eq. 545, 90 Atl. 1021. 

Compare Littlefield v. Maxwell, 
31 Me. 134; Cortelyou v. Van 
Brundt, 2 Johns. (N. Y.) 357, to 
the effect that any right invol- 
ing exclusive occupancy is neces- 
sarily more than an easement. 
And see references to English 
authorities to this effect, P"^t, § 
361, note 34. 

13. Pollard v. Barnes, 2 Cush. 
(Mass.) 191; Gurney v. Ford, 2 
Allen (Mass.) 576; Lacy v. Green. 
84 Pa. 514. 



1256 Real Property. [§ 360 

chaiidise,^-' on another's land, of tieing horses/^ mixing 
manure/^ and storing rolling chairs for hire^"^ thereon, 
of placing appliances to control the flow of water,^^ or 
to catch fish.^*^ 

In a few states the statutes name certain ease- 
ments which may be imposed upon land in favor of 
other land, and also certain easements which may be 
so imposed without making them appurtenant to other 
land.-°'-^ These provisions do not appear to have had 
[.ny substantial effect as regards the law of easements 
in those states. 

There are to be found occasional judicial expres- 
sions to the effect that new species of easements will 
not be recognized,^^ that, in other words, "incidents of 
a novel kind cannot be attached to property at the 
fancy or caprice of any owner. "^^ And this view re- 
ceived practical application in one case in which the 
court refused to recognize an easement consisting of 
an exclusive right to float boats on another's canal .^^ It 
cannot be said, however, that the courts have ordinarily 
shown any disposition thus to restrict the power of the 
owner of land to subject it to an easement in favor 

14. Richardson v. Pond, 15 Comp. Laws 1913, §§ 5330, 5331; 
Gray. (Mass.) 387. Oklahoma Rev. Laws 1910, §§ 

15. Trauger v. Sassaman, 14 6623, 6624; South Dakota Civil 
Pa. 514; Benham v. Minor, 38 Code 1910, §§ 267, 268. 

Conn. 252. 22. See Eckert v. Peters, 55 

16. Pye V. Mumford, 11 Q. B. N. J. Eq. 379, 36 Atl. 491. 

666. 23. This is in effect the state- 

17. Goldman v. Beach Front ment of Brougham L. C. in Kep- 
Realty Co., 83 N. J. L. 97, 83 pel v. Bailey, 2 Myl. & K. p. 535, 
Atl. 777. made in connection with the 

18. Wood V. Hewett, 8 Q. B. right to enforce an affirmative 
913. covenant as against a transferee 

19. Rolle V. Whyte, L. R. 3 Q. of the covenantor. It is quoted 
B. 286; Leconfeld v. Lonsdale, L. with approval in Ackroyd v. 
R. 5 a P. 657. Smith, 10 C. B. 164, and Hill v. 

20-21. See California Civ. Code, Tupper, 2 Hurlst. & C. 121. 
§§ 801, 802; Montana Rev. Codes, 24. Hill v. Tupper, 2 Hurlst. & 

1907, §§ 4507, 4508; North Dakota C. 121. 



^ 361] Easements. 1257 

of another, and, as a matter of fact, as appears from 
the preceding paragraph, they have quite freeh^ allowed 
incidents of a novel kind to be attached to property in 
the foi-m of easements, as they have in the form of 
covenants. 

II. The Creation of Easements. 

§ 361. Express grant. The various classes of vesti- 
tive facts bv means of which an easement can be created 
may be enumerated as follows: (1) Express grant; 
(2)^ Reservation or exception in a conveyance of land; 
(3) Implied grant or reservation; (4) Prescription; 
(5) A statutory proceeding, usually under the power of 
eminent domain; (6) Estoppel. The first of these will 
be considered in this section, and the others in the 
sections following. 

Easements, involving as they do no possession or 
seisin of the land, were never capable of creation by 
livery of seisin, and an owner of land desirous of 
creating an easement in favor of another could do so 
only by grant, that is, by a written instrument under 
seal. The necessity for this purpose of an instrument 
under seal still exists,^^ except in so far as seals may, 
in the particular jurisdiction, have been abolished or 
have lost their efficacy. In equity, however, it appears 
that an instrument, not under seal, by which it is 
sought to create an easement or right of profit, if based 

25. Wood V. Leadbitter, 13 land, 2 Gray (Mass.) 302; Fuhr 

Mees. & W. 842; Somerset v. Fog- v. Dean, 26 Mo. 116, 69 Am. Dec. 

well, 5 Barn. & C. 875; Bird v. 484; Blaisdell v. Portsmouth, G. 

Hlgginson, 2 Adol. & E. 696, 6 F. & C. R. Co., 51 N. H. 483; 

Adol. & E. 824; Hewlins v. Ship- Veghte v. Raritan Water Power 

pam, 5 Barn. & C. 221; Shipley Co., 19 N. J. Eq. 142; Thompson 

V. Fink, 102 Md. 219, 2 L. R. A. v. Gregory, 4 Johns. (N. Y.) 81, 4 

(N. S.) 1002, 62 Atl. 360; Dyer Am. Dec. 255; Wilkins v. Irvine, 

V. Sanford, 9 Mete. (Mass.) 395, 33 Ohio St. 138; Huff v. McCauley, 

43 Am. Dec. 399; Morse v. Cope- 53 Pa. St. 206, 91 Am. Dec. 203. 



1258 



Real Peopekty. 



[§ 361 



on a valuable consideration, will be given effect as a 
contract to create an easement.-^^ 

Even apart from the common-law requirement that 
the grant of an easement shall be by writing under seal, 
a wanting is necessary, under the Statute of Frauds, and 
an attempted oral grant of an easement is no more than 
a license.2*^ In courts exercising equitable powers, 
however, as before stated,^" if the intended gi^antee 
makes expenditures on the faith of the attempted oral 
grant, the intending grantor is estopped to deny the 
validity of the grant, or as it might be otherwise ex- 
})ressed, the attempted oral grant is given effect on the 
theory of part performance. 

What is in form a covenant merely — that is, an 
agreement under seal — may operate as the grant of an 
easement, when this is clearly the intention of the 
parties. ^^ For instance, a covenant by A that B shall 



25a. Frogley v. Lovelace, 
Johns 333; Jones v. TankerviUe 
(1909) 2 Ch. 440; Ashelford v. 
Wills, 194 111. 492, 62 X. E. 817. 

26. Profile Cotton Mills v. Cal- 
houn Water Co., 189 Ala. 181, 66 
So. 50; Davis v. Tway, 16 Ariz. 
566, L. R. A. 1915E, 604, 147 Pac. 
750; Empire Inv.^stment Co. v. 
Mort, 169 Cal. 732, 147 Pac. 960; 
Workman v. Stephenson, 26 
Colo. App. 339, 144 Pac. 
1126; McReynolds v. Har- 
rigfeld, 26 Idaho, 26, 140 Pac. 
1096; Wilmington Water-Power 
Co. v. Evans, 166 111. 548. 46 N. E. 
1083; Bonelli v. Blakemore, 66 
:Miss. 136, 14 Am. St. Rep. 550, 
5 So. 228; Banghart v. Flummer- 
felt, 43 N. J. Law 28; Huff v. 
McCauley, 53 Pa. St. 206, 91 Am. 
Dec. 203; Harris v. Miller, Meigs 
(Tenn.) 158, 33 Am. Dec. 138; 
Maple Orchard Grove & Vine- 
yard Co. V. Marshall, 27 Utah, 



215, 75 Pac. 369; Rice v. Roberts, 
24 Wis. 461, 1 Am. Rep. 195. 

27. Ante^ § 349(d), notes 44- 
49. 

28. Hiolms V. Seller, 3 Lev. 
305; Rowbotham v. Wilson, 8 H. 
L. Cas. 348, 362; McCarthy v. Nic- 
rcsi, 72 Ala. 332, 47 Am. Rep. 
418; Willoughby v. Lawrence, 116 
111. 11, 56 Am. Rep. 758. 4 N. E. 
356; Harris v. Dozler, 72 111. App. 
542; Hogan v. Barry, 143 Mass. 
538, 10 N. E. 253; Ladd v. City 
of Boston, 151 Mass. 585, 21 Am. 
St. Rep. 481, 24 X. E. 858; Kettle 
River R. Co. v. Eastern Ry. Co., 
41 Minn. 472, 6 L. R. A. Ill, 43 
X. W. 469; Barr v Lamaster. 48 
Xeb. 114, 32 L. R. A. 451, 66 X. W. 
1110; First Xat. Bank v. Ports- 
mouth Sav. Bank, 71 N. H. 547, 
53 Atl. 1017; Wetmore v. Bruce, 
118 N. Y. 319, 23 N. E. 303: Xor- 
fleet V. Cromwell, 64 X. C. 1; 
:\Iorton V. Thompson, 69 Vt. 432. 



§ 361] 



Easements. 



1259 



have a riglit of wav over his, A's land, may be regarded 
as in effect a grant of a right of way by A, m favor of 

Tlie grant of an easement may properly provide for 
a future extension of the user of the servient tenement 
to correspond with future requirements in that re- 

gard.^^^ 

It has been the subject of learned discussion m 
England,-^ whether, in a grant of an easement, m 
order to confer an interest for longer than the grantee's 
life, words of inheritance must be used.^*^ In this 
country it has occasionally been assumed that they are 
necessaiy for this purpose,^ ^ in the absence of any 
statutorv provision making a conveyance effective to 
create an estate in fee simple without the use of such 
words,22 g^^ch as has been before referred to.^'^ 

Whether an instrument is a grant of an easement 
in particular land,^'^^^ or a transfer of the ownership of 



38 Atl. 88; Kalinowski v. Jacob- 
owoski, 52 Wash. 359, 100 Pac. 
852; Warren v. Syme, 7 W. Va. 
475; In re Barhausen, 142 Wis. 
292,' 124 N. W. 649, 125 N. W. 
680. 

Likewise what is in form a 
release may, under the particular 
circumstances of the case, be con- 
strued as the grant of an ease- 
ment. Walterman v. Norwalk, 145 
Wis. 663, 130 N. W. 479. 

28a. Patterson v. Chambers 
Power Co., 81 Ore. 328, 159 Pac. 
568, and cases there cited. And 
see post. § 369. 

29. See articles in 24 Law 
Quart. Rev. at pp. 199, 259, 264. 

30. ITiere is a (.UcUim to the 
effect that such words are neces- 
sary in Hewlins v. Shippam, h 
B. & C. 221, 228. They are in 
practice invariably inserted. 

31. Bean v. French, 140 Mass. 



229, 3 N. E. 206; Hogan v. Barry, 
143 Mass. 538, 10 N. E. 253. And 
see cases cited /'o.v/, § 362, note 
65. 

But even in a state in which 
such words are regarded as neces- 
sary in the case of the grant of 
an easement, they are not neces- 
sary in order to give an easement 
by partition decree. Bornstein v. 
Doherty, 204 Mass. 280, 90 N. E. 
531. 

32. See Stovall v. Coggins 
Granite Co., 116 Ga. 376, 42 S. E. 
723; GoodwiUie Co. v. Common- 
wealth Electric Co., 241 111. 42, 
89 N. E. 272; Hagerty v. Lee, 54 
X. J. L. 580, 20 L. R. A. 631, 25 
Atl. 319; Karmuller v. Krotz, 18 
Iowa, 352; Whitney v. Richardson, 
59 Hun. (N. Y.) 601; Borst v. 
Empire, 5 N. Y. 33 (semble). 

33. Avtv, § 21(a). 

33a. As in Pellissier v. Corker, 



1260 



Real Property. 



[§ 361 



such land, with a specification of the user which is ex- 
pected to be made of the land,"* is obviously a question 
of construction of the language used. That the con- 
veyance is in terms of land does not necessarily pre- 
vent a construction thereof as creating only an ease- 
ment in the land.^'*'' 

One can obviously not create an easement upon land 
belonging to another, and for this reason one who has 
an undivided interest only in the land cannot create an 
easement therein."^ There are, however, occasional 



103 Cal. 516. 37 Pac. 465; Cin- 
cinnati, I. St. L. & C. Ry. Co., V. 
Geisel, 119 Ind. 77, 21 N. E. 470; 
Nichols V. New England Furniture 
Co., 100 Mich. 230, 59 N. W. 155; 
Maxwell v. McCall, 145 Iowa, 687, 
124 N. W. 760; Samples v. Smythe, 
32 Ky. L. Rep. 187, 105 S. W. 415; 
Callaway v. Forest Park High- 
lands Co., 113 Md. 1, 77 Atl. 141; 
Beasley v. Aberdeen & Rocktish 
R. Co., 145 N. Car. 272, 59 S. E. 
60; Wason v. Pilz, 31 Ore. 9, 48 
Pac. 701; Robinson v. Missisquoi 
R. Co., 59 Vt. 426, 10 Atl. 522; 
Reichenbach v. Washington Short 
Line Ry. Co., 10 Wash. 357, 38 
Pac. 1126. 

34. As in Weihe v. Lorenz, 254 
111. 195, 98 N. B. 268; Low v. 
Streeter, 66 N. H. 36, 9 L. R. A. 
271, 20 Atl. 247; Blauvelt v. Pas- 
saic Water Co.. 75 N. J. Eq. 351, 
72 Atl. 1091; Kilmer v. Wilson, 
49 Barb. (N. Y.) 86; AumiUer v. 
Dash, 51 Wash. 520, 99 Pac. 583; 
Mitchell V. Prepont, 68 Vt. 613, 
35 Atl. 496. See Abercrombie v. 
Simmons, 71 Kan. 538, 114 Am. St. 
Rep. 509, 1 L. R. A. N. S. 806, 
6 Ann. Cas. 239, 81 Pac. 208. 

That there is given a right of 
exclusive user of a part of the 



land, either on the surface, or in 
a stratum below the surface, ap- 
pears, according to the English 
cases, to indicate conclusively 
that something more than an 
easement is transferred, that thfi 
ownership of the land is to that 
extent conveyed. See article by 
Charles Sweet, Esq., on "The 
'Easement' of Tunnelling," 32 
Law Quart. Rev. 70; Taylor v. 
Corporation of St. Helens, 6 Ch. 
D. 264; Reilly v. Booth, 44 Ch. 
D. 12. To the same effect appear 
to be the American cases, Little- 
field V. Maxwell, 31 Me. 134; 
Cortelyou v. Van Brunt, 2 Johns. 
(N. Y.) 357. Compare cases cited 
ante, § 360, note 12. 

34a. Overton v. Moseley, 135 
Ala. 599, 33 So. 696; Robinson v. 
Missisquoi R. R. Co., 59 Vt. 426, 
10 Atl. 522; Biles v. Tacoma R. 
Co., 5 Wash. 509, 32 Pac. 211. 

35. Pfeiffer v. University of 
California, 74 Cal. 156, 10 Pac. 
622; Collins v. Prentice, 15 Conn. 
423; Marshall v. Peck, 28 Conn. 
183; Clark v. Parker, 106 Mass. 
554; Crippen v. Morse, 49 N. Y. 
63; Palmer v. Palmer, 150 N. Y. 



§ 361] Easements. 1261' 

decisions to the effect that if a cotenant does grant 
an easement, the grantee can demand a partition in 
order that the easement may be established upon that 
part of the hind allotted to his grantor.^^ 

The creation of an easement by devise, which oc- 
curs but infrequently, may be considered as one phase 
of the creation of easements by grant.-^''^ It occurs 
when the testator, in devising land, provides that tlie 
de^^isee shall have an easement over other land belong- 
ing to him.'"^ And the acquisition of an easement by 
condemnation,^"^ or, by what may be regarded as 
closely analogous thereto, the payment of a judgment 
for damages as on account of the maintenance of a 
permanent nuisance,^^*^ are also substantially varieties 
of acquisition of an easement by grant, as is the ac- 
quisition of an easement by force of a decree in parti- 
tion proceedings.^^® 

Party wall rights. Occasionally the ownei 

of land grants to an adjoining owner the privilege of 
utilizing a wall already constructed on the former's 
land as a party wall, that is, as a division wall and for 
purposes of support. More usually, however, a wall 

139, 55 Am. St. Rep. 653, 44 N. McKenney v. McKenney, 216 Mass. 
E. 966. It follows that he cannot 248, 103 N. E. 631; Wiley v. BaU, 
create it in favor of land owned 72 W. Va. 685, 79 S. E. 659. 
by him in severalty. Palmer v. 36c. Post. § 561. 
Palmer, 150 X. Y. 139, 55 Am. St. 36d. See editorial note, 7 Co- 
Rep. 653, 44 N. E. 966; City Club umbia Law Rev. at p. 277; Sedg- 
V. McGeer, 198 N. Y. 160, 91 N. wick. Damages, §§ 93, 95, 924, 
E. 539. 924a; LeAvis, Eminent Domain, §5 

36. Charleston, C. & C. R. Co. 937, 948. 

V. Leech, 33 So. Car. 175, 26 Am. 36e. See e. g.. Mount Hope Iron 

St. Rep. 6fi7, 11 S. E. 631; Mc- Co. v. Dearden, 140 Mass. 430, 4 

Elroy V. McLeay, 71 Vt. 396, 45 N. E. 803; Bornstein v. Doherty, 

Atl. 898. 204 Mass. 280., 90 N. E. 531; Bean 

36a. See Goddard, Easements, v. Coleman, 44 N. H. 539; RicU- 

(6th Ed.) 125. ardson v. Arraington, 10 R. I. 

36b. See e. g., Lide v. Hadley, ii^. 
.?6 Ala. 627, 76 Am. Dec. 338; 
2 R. P.— 5 



1262 Eeal Property. [§ 361 

acquires the characteristics of a party wall by reason 
of what is known as a party wall agreement, executed 
before the erection of the wall. For instance, if A and 
B own adjoining lots, and A contemplates the erection 
of a building on his lot, they may enter into an agree- 
ment by which A acquires from B the privilege of 
placing one wall of the building, to the extent of half 
its thickness, upon B's land, with a stipulation that 
B may use the wall for the purpose of such building 
as he may desire to erect, upon payment by him of one- 
half, or other proportioned part, of the cost of the 
wall. Or it may be that, without specifying which is 
to erect the wall, it is provided that the one erecting it 
may place one-half upon the other's land, and that 
the other may utilize the wall upon paying part of the 
cost. Assuming that A is the one who is to erect the 
wall, it would seem that B's agTeement that he may 
erect it in part on B's land involves the grant to A of 
an easement in B's land, while A's agreement that B 
ma}^ utilize the wall on the pajTuent of part of the 
cost of construction involves the grant of an easement 
in A's land as regards the part of the wall to be placed 
thereon. And likewise if it is not specified which o^vner 
is to erect the wall, there are, it appears, mutual grants 
of easements between the parties. As to the ownership 
of that part of the wall erected by A upon B 's land, the 
cases are to the effect that it belongs to A until B 
makes use of it,"^ or pays a part of its cost for the 
purpose of utilizing it,^^ whereupon it passes into the 
ownership of B. 

It appears somewhat singular that no question has 
ever been judicially suggested as to whether a party 

37. Maine v. Cumston, 98 Mass. 111. 437, 104 N. E. 5; Nat. Life 
317; Berry v. Godfrey, 198 Mass. Ins. Co. of Montpelier v. Lee, 75 
228, 84 N. E. 304; Hill v. Huron, Minn. 157, 77 N. W. 794; Glover 
33 S. Dak. 324, 145 N. W. 570. v. Mersman, 4 Mo. App. 90; 

38. Mickel v. York, 175 111. 62, Masson's Appeal, 70 Pa. St. 26. 
51 N. E. 848; Kuh v. O'Reilly, 261 



<^ 361] Easements. 1263 

wall agreement of the character referred to is not in- 
valid under the Eule against Perpetuities. If the agree- 
ment in effect provides that the o^\^lership of part of 
the wall is to change at an indefinite time in the future, 
as stated in the cases last referred to, it is difficult to 
see why such provision is not within the rule. And 
even apart from such a provision for a change in the 
ownership of the wall, if the right of the non builder, 
or of his successor in interest, to use the wall, is 
dependent on the pajinent by him of part of the cost, 
a construction of the agreement which is sometimes 
adopted,^^ such an attempt to create an easement to 
arise at some indefinite time in the future would seem 
to be within the rule.^° Conflict with the rule could be 
entirely avoided, it is conceived, by considering the 
part of the wall erected on the non builder 's land as con- 
tinuing to be the property of the builder even after 
user and payment therefor by the former, or as being 
from the first the property of the person on whose land 
it stands, and by furthermore considering the agreement 
as immediately creating cross easements in the land of 
each proprietor, with a contractual liability on the 
part of the non builder as regards part of the cost of 
the wall. 

It has occasionally l)een suggested that such an 
agreement creates the relation of vendor and purchaser 
as regards that part of the wall placed on the non 
builder's land,^^ that it, in other words, creates an 
option in the non builder -to purchase that part of the 
wall. Such a construction of the agreement would not 
protect it from the operation of the Rule against Perpe- 

39. As apparently in Masson's 40. Gray, Perpetuities, § 316. 

Appeal, 70 Pa. 26; Conner v. Joy, 41. See Gibson v. Holrlen, llf) 

— Tex. Civ. App. — , 150 S. W. III. 199, 56 Am. Rep. 146, 3 N. E. 

485. But not in Matthews v. 282; McChesney v. Davis, 86 111. 

Dixey, 149 Mass. 595, 5 L. R. A. App. 380; 8 Columbia Law Rev. 

102, 22 N. E. 61; Hill v. Huron, at p. 121. 
33 S. Dak. 324, 145 X. W. 570. 



1264 Eeal Property. [§ 361 

tiiities,^^ and it does not appear to be adopted in prac- 
tice, a conveyance of that part of the wall not being ex- 
ecuted upon payment by the non builder of part of the 
cost, as we might expect to be done if such payment in- 
volved the consummation of a purchase. Furthermore, 
while such an option would involve in effect a con- 
tract or covenant by the builder to convey to the non 
builder the part of the wall on the latter 's land, when 
ever the latter may desire to use the wall, upon pay- 
ment by the latter of the stipulated part of the cost, yet 
the possible existence of such a contract or covenant on 
the part of the builder is ignored in the numerous 
cases discussing whether the benefit or burden of the 
agreement to pay for the land ^\^11 pass to successors 
in title.^'^ In view of this omission to refer to any such 
contract or covenant in this connection, in which it 
would most properly be referred to, it seems reason- 
able to conclude that the theory that the parties stand 
in the relation of vendor and purchaser as regards 
the wall has not been generally adopted. 

A party wall agreement of the character referred 
to, involving as it does the creation of easements in 
land, is invalid if merely oral.** If, however, the wall 
is erected in accordance with the agreement, the parties 
are, it appears, in the same position as if the agreement 
had been originally valid. The agreement involves an 
attempted oral grant by one proprietor to the other of 
an easement to place the wall in part on the former's 
land, which is, on the theon^ of part performance or es- 
toppel,*'"* validated by the subsequent construction of 
the wall on the faith thereof.**' Such grant can, how- 

42. Gray, Perpetuities, §§ 330- Mass. 19, 5 L. R. A. 209, 15 Am. 
3S0c. St. Rep. 168, 22 N. E. 73. 

43. I'ost, §§ 393, 45. Ante, § 349(d), notes 44- 

44. Tillis V. Treadwen, 117 49. 

Ala. 445, 22 So. 983; Rice v. Rob- 46. Rawson v. Bell, 46 Ga. 19; 

erts, 24 Wis. 461, 1 Am. Rep. Russell v. Hubbard, 59 111. 335; 
195; Hodgkins v. Farrington, 150 Wickersham v. Orr, 9 Iowa, 253. 



§ 361] Easements. 1265 

ever, be recognized and enforced only subject to the con- 
ditions and stipulations to which it was originally sub- 
ject, including the right of the grantor to make use of 
the wall upon the payment by him of part of the cost 
thereof. So far as concerns the personal liability of 
such grantor under his contract to pay a portion of 
the cost of the wall in case of its use by him, conceding 
that such contract is within the Statute of Frauds, 
which appears somewhat questionable, it is validated, 
it seems, by reason of the part performance involved 
in the building of the wall,^^ and apart from the doc- 
trine of i)art performance, the user of the wall, since 
this belongs to the builder thereof, would involve a 
liability in tort or upon the theory of quasi con- 
tract. That a contract to pay a certain sum in case 
one makes a particular use of another's property is 
invalid under the statute can not enable him to make 
such use of the property without incurring any liability. 

If the proprietor who, by the terms of the agree- 
ment, is to construct the partition wall on the division 
line between the two properties, fails to extend it the 
full length of that line, the other, it has been held, has 
the privilege of so extending it.^^ 

What constitutes a user of the wall by B which 
will render him liable under his covenant to A, who 
constructed the wall, for part of the cost thereof, is 

74 Am. Dec. 348; Horr v. Hollis, not build it has been regarded 

20 Wash. 424, 55 Pac. 565; Miller as a performance which takes 

V. Brown, 33 Ohio St. 547. his contract to pay a part of the 

47. See Rawson v. Bell, 46 Ga. cost out of the statute. Walker 

19; Rindge v. Baker, 57 N. Y. v. Shackelford, 49 Ark. 503, 4 Am. 

209; Stuht v. Sweesy, 48 Neb. St. Rep. 61, 5 S. W. 887; Pireaux 

767, 67 N. W. 748; Swift v. Cal- v. Simon, 79 Wis. 392, 48 N. W. 

nan, 102 Iowa, 206, 37 L. R. A. G74. 

462, 63 Am. St. Rep. 443, 71 N. 48. Matthews v. Dixey. 149 

W. 233; Rice v. Roberts, 24 Wis. Mass. 595, 22 N. E. 61; Negus v. 

461, 1 Am. Rep. 195. Becker, 72 Hun (N. Y.) 479, 25 

Occasionally the user of the N. Y. Supp. 640. 
wall by the proprietor who did 



1266 Real, Peoperty. [§ 362 

l^rimarily a matter of the constiniction of the covenant. 
A user of the wall in the course of the reconstruction 
of an existing building, as distinguished from its use 
in the erection of a new building, has, in particular 
cases, been regarded as insufficient to impose a liabil- 
ity.^^ And a like view has been taken of the erection by 
B of another wall impinging upon the wall built by A, 
although the existence of this latter wall enables B to 
make his wall of lighter construction.^" In one case a 
covenant to pay part of the cost of the wall when the 
covenantor used it was construed to involve an obliga- 
tion upon his part to use the wall in a reasonable 
time,^^ and in two cases the court appears to have con- 
strued such a covenant as involving a liability upon 
the covenantor if he conveyed his land and so put it 
out of his power to use the wall.^^ 

§ 362. Express reservation or exception. By the 

law of England, an ''exception" in a conveyance merely 
withdraws from the operation of the conveyance a pan 
of the thing conveyed as a whole, and a "reservation" 
merely provides for the rendition to the grantor of 
something, such as a rent or service, which is regarded 
as issuing from the thing granted.^^"^^ An easement 

49. Shaw V. Hitclicock, 119 not to include one half the cost 
Mass. 254; Fox v. Mission Free of additions made by a purchaser 
School, 120 Mo. 349, 25 S. W. 172. from the buil:^er, on his own land, 

50. Kingsland v. Tucker, 115 N. for the purpose of strengthening 
Y. 574, 22 N. E. 268; Sheldon the wall for his own purposes. 
Bank v. Royce, 84 Iowa, 288, 50 Walker v. Stetson, 162 Mass. 86, 
N. W. 986. 44 Am. St. Rep. 350, 38 N. E. IS. 

That the builder of the Avail 51. Sherley v. Burns, 22 Ky. L. 

failed to extend it over a small Rep. 788, 58 S. W. 69. 

portion of the division line as he 52. Rawson v Bell, 46 Ga. 19; 

agreed to do was held not to Nalle v. Paggi, 81 Tex. 201, 13 

prevent recovery upon the other's L. R. A. 50, 16 S. W. 932. Compare 

covenant. Keith v. Ridge, 146 Mo. Hurford v. Smith, 24 Okla. 448, 

90, 47 S. W. 904. 103 Pac. 851. And cases cited 

The covenant to pay one-half post, § 393(b), note 74. 

of the cost of the wall was held 53-57. See post, § 436. 



§ 362] 



Easements. 



1267 



in the land conveyed is regarded as neither a part of the 
land nor as issuing therefrom, and consequently, in 
that country, if, upon the conveyance of land, there is 
in terms a reservation or exception, in favor of the 
grantor, of an easement in the land, these words are 
construed as in eft'ect a re-grant of the easement by 
the grantee of the land to the grantor, which can take 
effect only if the instrument is executed by such 
grantee.^^ In this country, however, the view of the 
common law as to the restricted functions of an ex- 
ception and a reservation is not usually adopted,^^ and 
it is held that an easement in the land conveyed may 
be created by a reservation,*^^ and in some states even 
by an exception,*'^ and consequently, the fact that the 
instrument is not executed by the grantee of the land as 
well as by the grantor is immaterial. Occasionally it has 
been decided that an easement may properly be created 
by a reservation but not by an except'ion,^- and, having 



58. Durham & S. Ry. Co. v. 
Walker, 2 Q. B. 940; Wickham v. 
Hawker, 7 Mees. & W. 63; Corpo- 
ration of London v. Riggs, 13 Ch. 
Div. 798. 

59. See post, § 436. 

60. Chai>pell v. New York, N. 
H. & H. R. Co., 62 Conn. 195, 
17 L. R. A. 420, 24 Atl. 997; 
Kuecken v. Voltz, 110 111. 264; 
Morrison v. Chicago & N. W. 
Ry. Co., 117 Iowa, 587, 
91 N. W. 793; Wendell 
V. Helm, 87 Kan. 136, 123 Pac. 
869; Inhabitants of WMnthrop v. 
Fairbanks, 41 .Me. 307; Damron v. 
Justice, 162 Ky. 101, 172 S. W. 
120; Kent v. Waite, 10 Pick. 
(Mass.) 138; Bowen v. Conner, 6 
Cush. (Mass.) 132; Claflin v. Bos- 
ton & A. R. Co., 157 Mass. 480, 
20 L. R. A. 638, 32 N. E. 659; 
Haggerty v. Lee, 54 N. J. Law 



580, 50 N. J. Eq. 464, 20 L. R. A. 
631, 25 Atl. 319; Borst v. Empie, 
1 Seld. N. Y. 33; Rose v. Bunn, 
21 N. Y. 275; Grafton v. ;\Ioir, 
130 N. Y. 465, 27 Am. St. Rep. 
533, 29 N. E. 974; Richardson v. 
Clements, 89 Pa. St. 503, 33 Am. 
Rep. 784; Kister v. Reeser, 98 Pa. 
St. 1, 42 Am. Rep. 608; Fischer v. 
Laack, 76 Wis. 313, 45 N. W. 104. 

61. Inhabitants of Winthrop v. 
Fairbanks, 41 Me. 307; Ring v. 
Walker, 87 Me. 550, 33 Atl. 174; 
Claflin V. Boston & A. R. Co., 
157 Mass. 489, 20 L. R. A. 638, 32 
N. E. 659; Bridser v. Pierson, 45 
N. Y. 601; Lcavitt v. Towle, 8 N. 
H. 96. 

62. City Club of Auburn v. .Mc- 
Geer, 198 N. Y. 160, 91 N. E. 539, 
92 N. E. 105; Gill v. Fletcher. 74 
Ohio St. 295, 113 Am. St. Rep. 
962, 78 N. E. 433; Kister v. Reeser, 



1268 



Eeal Property. 



[§ 362 



regard to the nature of a reservation and of an exception 
at common law, sucli a view appears to be a reasonable 
one. The assumption that an easement may be created 
by exception as well as by reservation has resulted in 
much confusion in particular cases/'^ 

In some states it is considered that words of in- 
heritance must be used in the reservation of an ease- 
ment in order that the grantor may acquire an ease- 
ment to endure longer than his own life,^^ In other 
states such words are regarded as unnecessary by 
reason of the general statutory provisions dispensing 
with the necessity of such words in order to create an 
estate in fee simiDle.*'*' In a few states the use of such 
words has been regarded as unnecessary on the theory 
that, the reservation being evidently intended to be 
for the benefit of neighboring land retained by the 
grantor, his easement is to be regarded as unlimited in 
point of duration."*" This latter view harmonizes with 



98 Pa. 1; Riefler & Sons v. Wayne 
Storage Water Power Co., 232 Pa. 
282, 81 Atl. 300. 

64. Post, § 436. 

65. Koelle v. Knecht, 99 I'.l. 
396; Dawson v. Western Md. R. 
Co., 107 Md. 70, 14 L. R. A. (X. S.) 
809, 126 Am. St. Rep. 337, 15 Ann. 
Cas. 678, 68 Atl. 301; Bean v. 
French, 140 Mass. 229; Childs v. 
Boston & M. R. R., 213 Mass. 91, 

99 N. E. 957; Hornbeck v. West- 
brook, 9 Johns. (N. Y.) 73; Kister 
V. Rieser, 98 Pa. 1. And so it 
has been said that the word "heirs ' 
is necessary in the case of a res- 
ervation of oil and gas, but not 
in the case of an exception of oil 
and gas. Mandle v. Gharing, 256 
Pa. 121, 100 Atl. 535. 

66. Webb v. Jones, 163 Ala. 
637, 50 So. 887; Presbyterian 
Church of Osceola v. Harken, 177 



Iowa, 195, 158 N. W. 692; Bein- 
lem V. Johns. 102 Ky. 570, 44 S. 
W. 128; Ruffin v. Seaboard Air 
Line Rwy., 151 N. Car. 330, 66 
S. E. 317; Rubnke v. Aubert, 58 
Ore. 6, 113 Pac. 38; Forde v. 
Libby, 22 Wyo. 464, 143 Pac. 1190. 
67. Webb v. Jones, 163 Ala. 
637, 50 So. 887 (dictum); Chap- 
pell V. N. Y., N. H. & H. R. Co., 
62 Conn. 195, 17 L. R. A. 420, 
24 Atl. 997; Teachout v. Capital 
Lodge I. 0. O. P., 128 Iowa, 380, 
104 X. W. 440; Ring v. Walker, 
87 Me. 550, 33 Atl. 174; Engel v. 
Ayer, 85 Me. 448, 27 Atl. 352; 
Lathrop v. Eisner, 93 Mich. 599, 
53 N. W. 791; Smith v. Furbish, 
68 N. H. 123, 47 L. R. A. 226. 44 
Atl. 398. But as to Maine see 
Winthrop v. Fairbanks, 41 Me. 
307; Dana v. Smith, 114 Me. 262, 
95 At. 1034. 



«^ 362] Easements. 1269 

the common law rule that the reservation of rent 
upon a lease by one having a fee simple estate, without 
the mention of heirs, gives the lessor an interest in 
the rent which passes upon his death to his lieirs, as 
partaking of the character of the reversion to which it 
appertains. ^^ 

In so far as it may be considered that an easement 
may be created by an exception, it is generally agreed 
tliat words of inheritance are unnecessary, in order to 
give to the grantor of the land an interest in the ease- 
ment to endure beyond his life.*^^ 

An easement in gross is ordinarily regarded, as 
above stated, as being purely personal to the person 
in favor of whom it is created,'*^ and consequently a 
reservation of such an easement would usually create 
an easement for the grantor's life only, in the ab- 
sence at least of language indicative of a contrary 
intention. 

That an easement cannot be created by reservation 
in favor of a person other than the grantor in the 
conveyance has been frequently asserted,'^ but there 
are to be found cases which are not in accord with 
such a view.'- The important consideration in that 
regard would appear to be whether the language of 
reservation in the particular case in favor of a third 

68. Co. Litt. 47a; 2 Piatt, H. & H. R. Co., *62 Conn. 195, 17 
Leases, 88; Gilbert, Rents, 64; L. R. A. 420, 24 Atl. 997; Win- 
Jaques v. Gould, 4 Cush. (Mass.) throp v. Fairbanks, 41 Me. 307; 
384. Mclntire v. Lauckner, 108 Me. 443, 

In Smith's Ex'cr v. Jones, 86 SI Atl. 784; Foster v. Smith, 211 

Vt. 258, 84 Atl. 866. that the ease- Mass. 411, 98 N. E. 693; Lipsky 

ment was appurtenant appears to v. Heller, 199 Mass. 310, 85 N. E. 

have been regarded as a reason 453; Smith's Ex'cr v. Jones, 86 

for construing the language as Vt. 258, 84 Atl. 866; Ruffin v. 

an exception, in order that, al- Seaboard Air Line, 151 N. Car. 

though without words of inheri- 330, 66 S. E. 317. 

tance, it might endure after the 70. Aiilr, § 350, note 3. 

grantor's life. 71. Post, § 436. 

69. Chappell v. New York, N. 72. Post, § 436. 



1270 Eeal Property. [§ 363 

person can be construed as the grant of an easement 
to such person. 

As words of covenant may operate as a grant of an 
easement,^^ they may operate as a reservation, as 
when one accepts a conveyance of land to him, which 
contains an agreement on his part that the grantor of 
the land may use such land in a certain way, or that 
he, the grantee, shall allow it to be used in a certain 
way.'^"^^ 

§363. "Implied" grant or reservation. (a) 

General considerations. Frequently, although there is 
no grant of an easement in express terms, an easement 
is regarded as arising in connection with a conveyance 
of land, either for the benefit of the land conveyed as 
against land retained by the grantor, or for the benefit 
of land retained by the grantor as against the land con- 
veyed, the former being referred to as a case of the 
"implied grant" of an easement, and the latter being 
referred to as a case of the "implied reservation" of 
an easement. 

This doctrine of implied grant and implied reserva- 
tion finds its practical application in connection with the 
question whether, upon a severance of ownership of 
land, an easement is created corresponding to a pre- 
existing "quasi easement,"^- and also in connection with 
the question of the existence of an "easement of 
necessity."*^ 

Theory of implied grant. In the case of an 



easement arising in favor of the grantee of land as 
corresponding to a preexisting quasi easement, as 

well as in the case of an easement of necessity, the 

73. Ante, § 361, note 28. 680. 

74-81. Weller v. Brown, 160 82. Post, this section, notes 85- 

Cal. 515, 117 Pac. 517; Hathaway 50. 

V. Hathaway, 159 Mass. 584, 35 83. Post, this section, notes 51- 

X. E. 85; Re Barkhausen, 142 3b. 
Wis. 292, 124 X. W. 649, 125 N. W. 



§ 363] Easements. 1271 

easement is res^arded as existing on the theory that 
the grantor and grantee of the land intend that it shall 
exist, and the courts merely declare in effect that the 
particular circumstances of the transaction raise a pre- 
sumption of such an intention. Since the easement thus 
arises as the result of an intention imputed to the 
parties that it shall arise, it exists, properly speaking, 
by reason of an express rather than an implied 
grant. This being so, a question suggests itself 
as to how, in view of the Statute of Frauds, and the 
recognized necessity, at common law, of a grant under 
seal in order to create an easement, a grantee 
of land can be regarded as acquiring, as ap- 
purtenant to the land, an easement in other land, not 
previously existing, and not referred to in the con- 
veyance. The explanation is, apparently, that the 
easement is to be regarded, for the purpose of the par- 
ticular case, as included in the description of the land 
conveyed. Evidence is always admissible to aid in the 
interpretation of the language of a written instrument, 
and so evidence is admissible to show the surrounding 
circumstances to be such as to raise a presumption that 
the property conveyed was, not a mere piece of land, but 
a piece of land with a particular easement appurtenant 
thereto.^* The rules declared by the courts as to the 
creation of easements corresponding to preexisting 
quasi easements, and of easements of necessity, con- 
stitute in reality merely rules of construction for the pur- 
pose of determining the scope of the conveyance. And 
the grant of the easement is implied only in the sense 
that the easement passes by the conveyance although not 
expressly mentioned, just as an easement previously cre- 
ated passes upon a conveyance of the land to which it 
is appurtenant without any express mention of the 

84. As said by Justice Story, privilege at the time of the grant, 

somewhat too sweepingly: "What- passes as parcel of it." Hazard 

ever is actually enjoyed w^ith the v. Robinson, 3 Mason, 272. 
thing granted, as a beneficial 



1272 Eeal Property. [§ 363 

easement. It is immaterial, from a legal point of 
view, whether the easement passes because the instru- 
ment expressly says that it shall pass, or because the 
circumstances are such as to call for a construction 
of the language used as so saying. So in the case of 
the so called implied reservation of an easement upon a 
conveyance of land, the description of the land is, by 
reason of the surrounding circumstances, construed to 
refer, not to the land free from any easement, but to the 
land subject to an easement corresponding to the 
previous mode of utilizing the land or to the necessities 
of the case, and there is thus, properly speaking, an 
express reserv^ation, in the sense that it is intended, or 
rather presumed to be intended, and the reservation is 
implied only in the sense that, instead of being explicitly 
stated, it is left to be inferred from the language used 
when construed with reference to the surrounding cir- 
cumstances. 

(b) Of easement corresponding to pre-existent 



quasi easement. One cannot have an easement over 
one's own land, but one may make use of one part of 
his land for the benefit of another part, just as, if they 
were separately owmed, the owner of the latter might 
make use of the former by reason of the existence of 
an easement in his favor. When one thus utilizes part 
of his land for the benefit of another part, it is frequent- 
ly said that a quasi easement exists, the part of the land 
which is benefitted being referred to as the ''quasi dom- 
inant tenement," and the part which is utilized for the 
benefit of the other part being referred to as the ^' quasi 
servient tenement." The so called qtmsi easement is 
evidently not a legal relation in any sense, but the 
expression is a convenient one to describe the particular 
mode in which the owner utilizes one part of the land for 
the benefit of the other, as bearing on the question now 
to be discussed, whether, when the two parts subse- 
quently become the property of different persons, an 
actual easement is to be regarded as existing, which 



^ a63] 



Easements. 1273 



corresponds to the use wliich was previously made of 
the land by the owner of both parts. The latter ques- 
tion is frequently, perhaps more usually, the subject of 
discussion and adjudication without the employment of 
the expression quasi easement, which is here employed 
merely because, in the view of the writer, the explana- 
tion and discussion of the matter will be thereby 
somewhat facilitated. 

If the owner of land, one part of which is sub- 
ject to a quasi easement in favor of another part, 
conveys the quasi dominant tenement, an easement cor- 
responding to such quasi easement is ordinarily re- 
garded as thereby vested in the grantee of the land, pro- 
vided, it is said, the quasi easement is of an apparent 
continuous and necessary character. 

It is perhaps unfortunate that the courts, in de- 
termining whether, in a particular case, an easement 
corresponding to a preexisting quasi easement has 
passed with the land, have usually failed to recognize 
that the question is primarily one of construction, and 
have instead undertaken to lay down absolute rules as to 
what characteristics the particular easement or quasi 
easement must have, implying that, if it has these char- 
acteristics, the easement will pass as a matter of law. 
The characteristics ordinarily referred to in tliis con- 
nection are, as above indicated, that the user be ap- 
parent, that it be continous, and that it be necessary, 
each of which will be hereaftei- discussed in turn. But 
it does not seem that the presence or absence of any or 
all of these characteristics should be conclusive. Taking 
the case of a quasi easement which is not apparent, 
which is not continuous and which is not necessary, 
nevertheless a conveyance in terms of the quasi domi- 
nant tenement should, it is conceived, be construed as 
a conveyance of the lands with an easement appurtenant 
thereto corresponding to the pre existing quasi ease- 
ment, if this accords with the probable intention of the 
parties. On the other liand, even though the quasi ease- 



1274 Eeal Property. [§ 363 

ment has all the three characteristics named, an ease- 
ment corresj)oncling thereto evidently does not pass 
with the land if the language of the conveyance shows 
clearly an intention otherwise,^^ or if the circumstances 
are such as to exclude a construction of the language 
of the conveyance as inclusive of the easement. So it 
has been decided that an easement does not pass when 
the grantee of the land knows that the grantor has no 
intention that it shall pass.^*^ 

Applications of doctrine. The doctrine of an 

implied grant of an easement corresponding to a pre- 
existing quasi easement has been applied in various 
connections, of which the following may be mentioned. 
It has been held that where the owner of two pieces 
of land maintains on one of them a drain for the bene- 
fit of the other, a person to whom he conveys the latter 
is entitled to an easement of maintaining the drain 
as it was before maintained.^' And so if one lays pipes 
for the supply of water from one part of his land to 

85. Webber v. Vogel, 159 Pa. tale of property under order of 
235, 28 Atl. 226; Hardy v. Mc- court there was no implication 
Cullough, 23 Gratt. (Va.) 251; of the grant of an easement if 
Bloom V. Koch, 63 N. J. Eq. 10, the evident intention of the court 

50 Atl. 621 (dictum) ; Greer v. was otherwise. 

Van Meter, 54 N. J. Eq. 270, 33 87. Thayer v. Payne, 2 Gush. 

Atl. 798 Ulictinn); United States Mass. 327; Lampman v. Milks, 21 

V. Appleton, 1 Sumn. 492. N. Y. 505; Denton v. Leddell, 23 

86. Birmingham, Dudley & Dis- N. J. Eq. 64; Shaw v. Etheridge, 
trict Banking Co. v. Ross, L. R. 3 Jones L. (48 N. C«ir.) 300; 
38 Ch. Div. 295; McPherson v. Siiarpe v. Scheible, 162 Pa. 341, 
Acker, McArth. & M. 150, 48 Am. 42 Am. St. Rep. 838, 29 Atl. 736; 
Rep. 749; Curtis v. Ayrault, 47 Elliott v. Rhett, 5 Rich. L. (S. C.) 
N. Y. 473; Lebus v. Boston, 21 40S, 57 Am. Dec. 750; Sarnderlin 
Ky. X.aw Rep. 411, 47 L. R. A. 79, v. Baxter, 76 Va. 299; McElroy 

51 S. W. 609; Kemp v. Pennsyl- v. McLeay, 71 Vt. 396, 45 Atl. 
vania R. R., 156 Pa. 430, 26 Atl. 898. But see Allers v. Bach, 130 
1074. Md. 499, 100 Atl. 781, where the 

In Assets Investment Co. v. implied grant of an easement of 
HoUingshead, C. C. A. 200 Fed. drainage was negatived, apparent- 
551, it was decided that upon a ly as not being necessary. 



§ 363] 



Easements. 



1275 



another part, a grantee of the part so benefitted may 
have the privilege of obtaining a water supply in 
the same manner as it was previously obtained by his 
grantor.^^ The doctrine has also been applied in connec- 
tion with the question of the right to utilize water 
power,^'^ to flood land,*^® to demand support for a 
building from another building,^ ^ or from a wall,^- to 



88. Nicholas v. Chamberlain, 
Cro. Jac. 121; Watts v. Kelson, 
L. R. 6 Ch. 166; Franciscioni v. 
Soledad Land & Water Co., 170 
Cal. 221, 149 Pac. 161; Quinlan 
V. Noble, 75 Cal. 250, 17 Pac. 69; 
Adams v. Gordon, 265 111. 87, 106 
X. E. 517; Johnson v. Knapp, 146 
Mass. 70, 15 N. E. 134; Toothe 
V. Bryce. 50 N. J. Eq. 589, 25 Atl. 
iS2;Larsen v. Peterson, 53 N. J. 
Eq. 88, 30 Atl. 1094; Paine v. 
Chandler, 134 N. Y. 385, 19 L. R. 
A. 99, 32 N. E. 18; Spencer v. 
Kilmer, 151 N. Y. 390, 45 N. E. 
865; Coolidge v Hager, 43 Vt. 9, 
5 Am. Rep. 256. 

In Nicholas v. Chamberlain. 
Cro. Jac. 121, there is a dictum by 
Popham, C. J., that no such ease- 
ment to have the water pass to 
one's land is created if the pipes 
were laid by a lessee of the grant- 
or or by a disseisor, and they 
were not in any way adopted by 
the grantor as a part of the 
premises before making the con- 
veyance. This dictum was ap- 
plied in Cogswell v. Cogswell, 
81 Wash. 315, 142 Pac. 655. 

89. Jarvis v. Seele Mill Co., 
173 111. 192, 64 Am. St. Rep. 107, 
50 N. E. 1044; Smith v. Dressel- 
house, 152 Mich. 451, 116 N. W. 
387; Richardson v. Bigelow, 15 
Gray (Mass.) 154; Simmons v. 



Cloonan, 81 N. Y. 557. 

90. Preble v. Reed, 17 Me. 169; 
Baker v. McGuire, 53 Ga. 245, 57 
Ga. 109; Burr v. Mills, 21 Wend. 
(N. Y.) 290; Znamanacek v. 
Jelinek, 69 Neb. 110, 111 Am. St. 
Rep. 533, 95 N. W. 28; Latta v. 
Catawba Electric & Power Co., 
146 N. Car. 285, 59 S. E. 1028. 

91. Jordan v. Otis, 38 Ms. 429; 
Tunstall v. Christian. 80 Va. 1. 
56 Am. Rep. 581; Richards v. 
Rose, 9 Exch. 217. But see Grif- 
fiths V. Morrison, 106 N. Y. 165, 
12 N. E. 580; Whyte v. Builders' 
League, 164 N. Y. 429, 58 N. E. 
517. 

92. Kahn v. Cherry, 131 Ark. 
49, 198 S. W. 266; Nippert v. 
Warneke, 128 Cal. 501. 61 Pac. 96, 
270; Goldschmid v. Starring, 5 
Mackey (D. C.) 582; Ringgold 
Lodge V. De Kalb Lodge, 157 Ky. 
203, 16 S. W. 1111; Carlton v. 
Blake, 152 Mass. 176, 23 Am. St. 
Rep. 818, 25 N. E. 83; Cherry v. 
Brizzolura, 89 Ark. 309, 116 S. 
W. 668; Partridge v. Gilbert, 15 
N. Y. 601, 69 Am. Dec. 632; Eno 
V. Del Vecchio, 4 Duer. (N. Y. 
— ) 53, 6 Duer. 17; Henry v. 
Koch, 80 Ky. 391, 44 Am. Rep. 
484; Doyle v. Ritter, 6 Phila. 577; 
Schwalm v. Beardsley, 106 Va. 
407, 56 S. E. 135. 



1276 



Eeal Property. 



[§ 363 



utilize a stairway on adjoining property ,^-^ and to liave 
a building encroach on another's land,^^ and even to 
have water in an adjoining pond kept at a fixed level.®*^ 

Easement of light. In England and one or two 



states, it is the ordinary rule that, if one conveys land 
on which there is a building which is lighted by windows 
opening on land retained by the grantor, the grantee is 
entitled to an easement of light over such land, and the 
grantor cannot obstruct his light by building on his 
land.^"^ Generally, in this country, however, it has been 
held that no such grant of an easement of light will be 
implied, it being calculated unduly to burden land, and 
to interfere with its alienation and proper improve- 
ment;^*' or that it will be implied only in case the light 



93. Stephens v. Boyd, 157 Iowa, 
570, 138 N. W. 389; National Ex- 
change Bank v. Cunningham, 46 
Ohio St. 575, 22 N. E. 924; HoweU 
V. Estes, 71 Tex. 690, 12 S. W. 
62; Geible v. Smith, 146 Pa. 276, 

28 Am. St. Rep. 796, 23 Atl. 437. 

94. Lead City Miner's Union v. 
Moyer, 235 Fed. 376; Wilson v. 
Riggs, 27 App. D. C. 550; John 
Hancock Mut. Life Ins. Co. v. 
Patterson, 103 Ind. 582, 53 Am. 
Rep. 550, 2 N. E. 188; Smith v. 
Lockwood, 100 Minn. 221, 110 N. 
W. 980; Carrig v. Mechanics' 
Bank, 136 Iowa, 261, 111 N. W. 
329; Katz v. Kaiser, 154 N. Y. 
294, 48 N. E. 532; Grace M. E. 
Church V. Dobbins, 153 Pa. 294, 
34 Am. St. Rep. 706, 25 Atl. 1120. 

94a. Marshall Ice Co. v. La 
Plant, 136 Iowa, 621, 12 L. R. A. 
(N. S.) 1073, 111 N. W. 1016. 

95. Swansborough v. Coventry, 
9 Bing. 305; Broomfield v. Wil- 
liams (1897), 1 Ch. 602; Greer 
V. Van Meter, 54 N. J. Eq. 270, 



33 Atl. 794; Sutphen v. Therkel- 
son, 38 N. J. Eq. 318; Fowler v. 
Wick. 74 N. J. Eq. 603, 70 Atl. 
682; Liedtke v. Lipman, (N. J. 
Ch.) 76 Atl. 463; Janes v. Jenk- 
ins, 34 Md. 1, 6 Am. Rep. 300. 
See Wood v. Grayson, 22 Dist. 
Col. App. 432. 

96. Kenn3dy v. Burnap, 120 
Cal. 488, 40 L. R. A. 476, 52 Pac. 
843; Keating v. Springer, 146 111. 
481, 22 L. R. A. 544, 37 Am. St. 
Rep. 175, 34 N. E. 805; Anderson 
V. Bloomheart, 101 Kan. 691, 168 
Pac. 900, 901; Ray v. Sweeney, 14 
Bush (Ky.) 1, 29 Am. Rep. 388; 
Keiper v. Klein, 51 Ind. 316; Keats 
V. Hugo, 115 Mass. 204, 15 Am. 
Rep. 80; Mullen v. Strieker, 19 
Ohio St. 135, 2 Am. Rep. 379; 
Bailey v. Gray, 53 S. C. 503, 31 
S. E. 354; Roe v. Walsh, 76 
Wash. 148, 135 Pac. 1031, 136 Pac. 
1146. See Morrison v. Marquardt, 
24 Iowa, 35, 92 Am. Dec. 444; 
White V. Bradley, 66 Me. 254 



§ 363] Easements. 1277 

entering the grantee's building over the grantor's land 
is actually necessaiy to the use of such building.'*^ 

The same rule as that ordinarily applied in con- 
nection with a conveyance in fee simple has also been 
asserted in connection \\dth a lease, it being held that 
the lessor, or one claiming under him, may erect a 
building on land adjoining the premises leased, al- 
though he thereby obstructs the passage of light to the 
latter premises.''^ Some courts have, however, indi- 
cated a disposition to protect a tenant under a lease to 
a greater extent in this regard than a grantee in fee 
simple, having in view perhaps that the burden on the 
adjoining land will endure only for the life of the lease, 
and that the tenant is not in a position to change the 
construction of the building in order to procure light 
otherwise. Thus it has in one state been decided that 
the lease of a room ' ' with appurtenances ' ' passes an ease- 
ment in the yard attached to the building, for the pro- 
curement of light and air,*^^^ and in another that one 
who leases front rooms in his building cannot construct 
an addition to the building on an unenclosed space in 
front thereof so as to cut off the light and air from the 

97. Robinson v. Clapp, 65 Palmer v. Wetmore. 4 N. Y. Super. 
Conn. 365, 29 L. R. A. 582, 32 Ct. (2 Sandf.) 316; Myers v. Gem- 
Atl. 939; Turner v. Thompson, mel, 10 Barb, (N. Y.) 537; Lindsey 
58 Ga. 268, 24 Am. Rep. 497; Dar- v. First Nat. Bank, 115 N. C. 553, 
r.ell V. Columbus Show Case Co., 20 S. E. 621. 

129 Ga. 62, 12 L. R. A. (N. S.) 333, 98a. Doyle v. Lord, 64 N. Y. 

58 S. E. 631; Case v. Minot, 158 432, 21 Am. Rep. 629. The opin- 

Mass. 577, 22 L. R. A. 536, 33 N. ion is apparently to the effect 

E. 700; Lipsky v. Heller, 199 that if "appurtenances" had not 

Mass. 310, 85 N. E. 453; Renny- been mentioned, no easement 

son's Appeal, 94 Pa. St. 147, 39 would have passed, but it also 

Am. Rep. 577; Powell v. Sims, 5 distinguishes the cases deciding 

W. Va. 1, 13 Am. Rep. 629. that no easement of light is cre- 

98. Keating v. Springer, 146 ated by implication on the ground 
111. 481, 34 N. E. 805, 22 L. R. A. that in this particular case the 
544, 37 Am. St. Rep. 175 (in this yard had been appropriated to 
case, however, there was an ex- the use of the building and was 
press covenant on the subject) ; a part of the same lot. 

2 R, P.— G 



1278 Reu\l Peoperty. [§ 363 

rooms and cover the lessee's signs.^^** A like view has 
been asserted as to the obstruction of the light passing 
to that part of the building- which is leased, by reason of 
an alteration of the building itself, it having been de- 
cided that the lessor, or one standing in his place, can- 
not alter the building so as to prevent light and air 
from passing through a ''well" as it did at the time of 
the lease.'^^'' And it has likewise been decided that the 
tenant of an upper floor cannot obstruct the passage of 
light to a lower floor through a grating'' ^'^ or skylight.^ ^'^ 
In the various cases referred to, the light in question 
was presumably necessary' for any proper enjoyment 
of the premises, and they may perhaps be regarded as 
coming within the exception to the general rule, some- 
times asserted,^^^ that a grant of a right to light will 
be implied so far as it is absolutely necessary.''**^ 

User must be apparent. That an easement 

may thus be created because corresponding to a pre- 
existing quasi easement, the quasi easement, that is, 
the user of one tenement for the benefit of the other by 
their common owner, must, it is said, have been appar- 
ent,''^'^ and it was apparent, it has been stated, if its 

98b. Brande v. Grace, 154 easement in such light and air as 

Mass. 210, 31 N. E. 633. was "essential to the beneficial en- 

98c. Case v. Minot, 158 Mass. joyment of the leased tenement." 

577, 22 L. R. A. 536, 33 N. E. which he could assert against 

700. one subsequently taking a lease 

88d. Spies v. Damm, 54 How. of adjoining land from the same 

Pr. (N. Y.) 293. lessor. And in Stevens v. Salo- 

98e. O'Neill v. Breese. 3 Misc. mon, 39 Misc. 159, 79 N. Y. Supp. 

219. 23 N. Y. Supp. 526. See 136, that the lessor could not 
Morgan v. Smith. 5 Hun (N. Y.) cut off light "essential to the 

220. beneficial use." 

9Sf. Ante, § this section, note 98h. Whiting v. Gaylord. 66 

97. Conn. 337, 50 Am. St. Rep. 87, 34 

98g. In Darnell v. Columbus Atl. 85; Hyde Park Thompson 

Show Case Co., 129 Ga. 62, 58 S. Houston Light Co. v. Brown, 172 

E. 631, 13 L. R. A. N. S. 333, it 111. 329, 50 N. E. 327; Powers v. 

was held that the lessee had an Heffernan, 233 111. 597, 84 N. E. 



§ 363] 



Easements. 



1279 



existence was indicated by signs which must necessarily 
have been seen, or which might be seen or known on a 
careful inspection by a person ordinarily conversant 
with the subject.'^'' Accordingly, the question whether 
the user of land for a drain or aqueduct which is under 
ground or covered by buildings is apparent for the 
purpose of the rule depends, it seems, on whether 
there is any object in sight from the land purchased, 
as being thereon or near thereto, such as a pump or a 
sink, which indicate the presence of the aqueduct 
or drain. ^ 

The user of land for purposes of {passage is appar- 
ent, it seems, so as to give to the transferee of the quasi 
dominant tenement a right of way over the land re- 
tained, if there is a well marked road or path, either 
constructed for the purpose,^ or as a result of con- 



l>61; Fetters v. Humphreys, 18 N. 
J. Eq. 260, 19 N. J. Eq. 471; Lamp- 
man V. Milks, 21 N. Y. 505; Butter- 
worth V. Crawford. 46 N. Y. 349, 
7 Am. Rep. 352; Phillips v. Phil- 
lips, 48 Pa. St. 178, 86 Am. Dec. 
577; Providence Tool Co. v. Cor- 
liss Steam Engine Co., 9 R. I. 
564; Sanderlin v. Baxter, 76 Va 
299, 44 Am. Rep. 165. 

99. Gale, Easements (8th Ed.) 
116; Pyer v. Carter, 1 Hurlst. & 
N. 916. See to this effect, Ingalls 
V. Plamondon, 75 111. 118; Taylor 
V. Wright, 76 N. J. Eq. 121, 79 
Atl. 433; Butterworth v. Craw- 
ford, 46 N. Y. 349, 7 Am. Rep. 
352; Rollo v. Nelson, 34 Utah, 
116, 26 L. R. A. (N. S.) 315, 96 
Pac. 263. 

In Brown v. Dickey, 106 Me. 
97, 75 Atl. 382, it is said that the 
easement must be "indicated by 
objects which are necessarily 
seen or would be ordinarly ob- 
servable by persons familiar with 



the premises." 

1. For cases in which a quasi 
easement involving the use of 
land for a drain or aqueduct 
was 'held to be apparent, see 
Pyer v. Carter, l Hurlst. & N. 
916; Schwann v. Cotton (1916), 
2 Ch. 120; McPherson v. Acker, 
:MacArthur & M. (D. C.) 150, 48 
Am. Rep. 749; Tooth v. Bryce. 
50 N. J. Eq. 589, 25 Atl. 182; 
Larsen v. Peterson, 53 N. J. Eq. 
88, 30 Atl. 1094; Miller v. Skaggs, 
79 W. Va. 645, Ann. Cas. 1918D, 
929, 91 S. E. 536. For cases in 
which it was held not to be ap- 
parent, see Robinson v. Hillman, 
36 Dist. Col. App. 241; Carbrey 
V. Willis, 7 Allen (Mass.) 364, 
83 Am. Dec. 688; Covell v. Bright, 
157 Mich. 419, 122 N. W. 101; 
Butterworth v. Crawford, 46 N. 
Y. 349, 7 Am. Rep. 352; Scott v. 
Beutel, 23 Gratt. (Va.) 1. 

2. Robinson v. Hillman, 36 
Dist. Col. App. 241; Teachout v. 



1280 Real Property. [§ 363 

stant or prolonged user.^ There are however ocasional 
judicial expressions to the effect that a way is never 
to be regarded as apparent for this purpose.'^* 

The requirement that the user of the land have 
been apparent is perhaps based on the consideration 
that if the user was not apparent, the one to whom the 
quasi dominant tenement is conveyed cannot be pre- 
sumed to have had any knowledge thereof, or to have an- 
ticipated that he would enjoy a like right of user. But 
this consideration appears to be of uniform impor- 
tance only on the assumption that every conveyance is 
a bilateral transaction, that, in other words, it is effec- 
tive because representing an agreement between the 
parties. A conveyance is, no doubt, in the ordinary 
case, the result of a prior agi^eement, and the require- 
ment of the ''acceptance" of a conveyance, so fre- 
quently asserted in this country,"^** involves the idea that 
the conveyance, to be effective, must also be agreed to 
by the grantee after its execution. Nevertheless a con- 
veyance may well be made which is not the result of 
agreement, and which is valid in spite of the inability of 
the grantee to accept. Suppose a conveyance of 
the quasi dominant tenement is made by wav of gift 
to a child one year old. Why should the fact that the 
user of the quasi servient tenement is apparent or not 
apparent affect the question whether the conveyance 

Duffus, 141 Iowa, 466, 119 N W. N. J. Eq. 471; Michelet v. Cole, 

983; Keokuk Electric Ry. & Power 20 N. Mex. 357, 149 Pac. 310. In 

Co. V. Weisman, 146 Iowa, 679. Duvall v. Ridout, 124 Md. 193, 

126 N. W. 60; Hankins v. Hen- L. R. A. 1915C, 345, 92 Atl. 209. 

Hendricks, 247 111. 517, 93 N. E. it is said that there is no implied 

428; Scott v. Moore, 98 Va. 66S. grant of a way, though well de- 

71 Am. St. Rep. 749, 37 S. E. fined, unless it is enclosed or im- 

342; Hammond v. Ryman, 120 Va. proved, or is actually necessary. 

131, 90, S. E. 613. And Allers v. Beach, 130 Md. 499, 

3. Stone v. Burkhead, 160 Ky. 100 Atl. 781, is adverse to the 

47, 169 S. W. 489 (semble) ; Liquid "implied" grant of a right of w.ay 

Carbonic Co. v. Wallace, 219 Pa. in any case, if not a way of neces- 

457, 68 Atl. 1021. sity. 

3a. Fetters v. Humphreys, 19 3b. Post, § 463. 



§ 363] 



Easements. 



1281 



creates an easement in favor of the infant? And the 
same difficulty suggests itself in connection with a devise 
of the quasi dominant tenement,'* in which case the 
devisee may be ordinarily supposed to be ignorant of 
the devise until after the testator's death. If the 
testator has habitually made use of one part of his land 
for the benefit of another, why should not a devise of 
this latter part be presumed to be intended to include 
the right of user to the same extent when the user is 
not apparent as wlien it is apparent? And even in the 
case of a conveyance of the quasi dominant tenement 
by way of sale, the fact that the user is not apparent 
might well be disregarded if the grantee knows other- 
wise of such user by the grantor.^ 

User must be continuous. In order that an 

easement may thus be created as corresponding to a pre 
existing quasi easement, the previous user must also, 
it is ordinarily stated, have been continuous." In some 



4. Post, note 30. 

5. The statement that the user 
must be apparent, like the state- 
ment that it must be continuous 
a;ppears to have originated in 
Gale and Whatley on Easements, 
published in 1839, these authors 
adopting the expressions "appar- 
ent" and "continuous" from the 
French Civil Code. See Lord 
Blackburn's remarks in L. R. o 
App. Cas. at p. 821. There were 
quite a number of cases prior to 
the date named, an 3 indeed sub- 
sequent thereto, in which the doc- 
trine of the grant of an easement 
as corresponding to a pre-exist- 
ing quasi easement was recog- 
nized, but in which there was no 
suggestion of any necessity that 
the prior user have been appar- 
ent or continuous. See cases re- 
ferred to, Gale, Easements (8th 



Ed.) 117 et seq. The requirement 
of the French Code in this re- 
spect appears to have been based 
upon certain of the customary 
laws, and upon the decisions of 
the courts, of old France. See the 
references in a suggestive note 
in 65 University of Penna. Law 
Rev. at p. 77. In Brissaud, French 
Private Law (Continental Legal 
History Series) p. 424, it is said 
that in the old law the doctrine 
of implied grant based on pre- 
vious usage, ordinarily referred to 
as "destination du pere de famine'' 
seems to have applied only to 
visible servitudes, but that there 
is not a very clear distinction 
made between their being visible 
and being continuous. 

6. Worthington v. Gimson, 2 
El. & El. 618; Wheeldon v. Bor- 
rows, 12 Ch. Div. 31; Walker v. 



1282 



Real Peoperty. 



[§ 36^ 



cases the view is taken that the user is continuous if 
no further act of man is necessary to its continuous 
exercise," while in other cases the question is said to 
be whether there is a permanent adaptation of the 
tw^o tenements to the exercise of the user.^ Givins: the 
former signification to the expression, it is difficult to 
see any propriety in the requirement of. continuousness. 
Giving the latter signification thereto, the requirement 
appears to be, not that the user be continuous, but that 
there be such an adaption of the two tenements for the 
purpose of such user as to indicate an intention that 
the user shall be permanent or approximately perma- 
nent, and there are cases in which this view is ex- 
pressed.^ 



Clifford, 128 Ala. 67, 86 Am. St. 
Rep. 74, 29 So. 588; Whiting v. 
Gaylord, 66 Conn. 337, 50 Am. St. 
Rep. 87, 34 Atl. 85; Powers v. 
Heffernan, 233 111. 597, 84 N. E. 
661; Larsen v. Peterson, 53 N. J. 
Eq. 88, 30 Atl. 1094; Lampman 
Milks, 21 N. Y. 505; Longendyke 
V. Anderson, 101 N. Y. 625, 4 N. 
E. 625; Sanderlin v. Baxter, 76 
Va. 299, 44 Am. Rep. 165. 

7. Bonelli v. Blakemore, 66 
Miss. 136, 14 Am. St. Rep. 550. 
5 So. 228; Providence Tool Co. v, 
Corliss Steam Engine Co., 9 R. I. 
564; Morgan v. Meuth, 60 Mich. 
238, 27 N. W. 509. This is the 
meaning given to the expression 
by the French law. Code Napoleon 
Art. 688. See editorial note, 65 
University Penna. Law Rev. 77. 

8. Toothe v. Bryce, 50 N. J. 
Eq. 589, 25 Atl. 182; Larsen v. 
Peterson, 53 N. J. Eq. 88. 30 Atl. 
1094; John Hancock Mut. Life 
Ins. Co. V. Patterson, 103 Ind. 582, 
53 Am. Rep. 550, 2 N. E. 188; 
Paine v. Chandler. 134 N. Y. 385, 



19 L. R. A. 99, 32 N. E. 18; 
Spencer v. Kilmer, 151 N. Y. 390, 
45 N. E. 865. 

9. John Hancock Mut. Life 
Ins. Co. V. Patterson, 103 Ind 
582, 53 Am. Rep. 550, 2 N. E 
188; Starrett v. Baudler, — Iowa. 
— , 165 N. W. 216; Carmon v. 
Dick, 170 N. C. 305, 87 S. E. 
224; Baker v. Rice, 56 Ohio St. 
463, 47 N. E. 653; German Sav- 
ings & Loan Society v. Gordon. 
54 Ore. 147, 26 L. R. A. (N. S.) 
331., 102 Plac. 736; -Phillips v. 
Phillips. 48 Pa. St. 178, 86 Am. 
Dec. 577; Scott v. Moore, 98 Va. 
668, 81 Am. St. Rep. 749, 37 S. E. 
342 (semble). 

In occasional New Jersey deci- 
sions continuous and apparent 
appear to be regarded as con- 
vertible terms. Fetters v. Humph- 
reys, 18 N. J. Eq. 260; Taylor v. 
Wright, 76 N. J. Eq. 121, 79 Atl. 
433. And see as to the lack of 
distinction in this regard, in the 
old French law, oiite, this sec- 
tion note 5, ad fin. 



§ 363] 



Easements. 



1283 



The maintenance of a drain or aqueduct has been 
regarded as involving a continuous user/'' while, on 
the other hand, the going on land to obtain water has 
been regarded as not continuous.^ ^ 

Whether the user of land for purposes of passage 
is continuous within the meaning of this asserted re- 
quirement is a matter on which there has been con- 
siderable difference of opinion, and while some cases 
seem to regard is as necessarily discontinuous, because 
not constantly exercised,^- other cases regard it as 
continuous if there is a clearly-defined road over the 
servient tenement, evidently intended for the use of 
the dominant tenement.'^ 



10. Larsen v. Peterson, 53 N. 
J Eq. 88, 30 Atl. 1094; Paine v. 
Chandler. 134 N. Y. 385. 19 L. R. 
A. 99. 32 X. E. 18; Sanderlin v. 
Baxter, 76 Va. 299; Hoffman v. 
Shoemaker, 69 W. Va. 233, 34 L. 
R. A. (X. S.) 632, 71 S. E. 198; 
Dodd V. Burchell. 1 Hurlst. & Colt 
113; Schwann v. Cotton (1916), 2 
Ch. 120. 

11. Polden V. Bastard. L. R. 1 
Q. B. 156; O'Rorke v. Smith, 11 
R. I. 259, 23 Am. Rep. 440. Con- 
tra. Eliason v. Grove, 85 Md. 215, 
36 Atl. 844, in which case, how- 
ever, there was a continuous 
adaptation of the premises, in 
the shape of a gate near the 
v.ell. 

12. Worthington v. Gimson, Z 
El. & El. 618; Brett v. Clowser, 
5 C. P. Div. 376; Oliver v. Hook, 
47 Md. 301; Bentley v. Mills, 174 
Mass. 469, 54 N. E. 885 (semble) : 
Morgan v. Meuth. 60 Mich. 238, 27 
N. W. 509; Bonelli v. Blakemore, 
66 Miss. 136, 14 Am. St. Rep. 550, 
5 So. 228; Fetters v. Humphreys, 
18 N. J. Eq. 260, 19 X. J. Eq. 471: 



Kelly v. Dunning, 43 X. J. Eq. 
62, 10 Atl. 276; Parsons v. John- 
son. 68 X. Y. 62, 23 Am. Rep. 
149; Carmon v. Dick, 170 N. C. 
305, 87 S. E. 224; Providence Tool 
Co. v. Corliss Steam Engine Co., 
9 R. I. 504: O'Rorke v. Smith, 11 
R. I. 259; Standiford v. Goudy. 
6 W. Va. 364. 

13. Brown v. Alabaster, 37 Ch. 
Div. 490; Thomas v. Owen, 20 Q. 
B. Div. 225; Watts v. Kelson, 6 
Ch. App. 166; Ellis v. Bassett, 
128 Ind. 118, 25 Am. St. Rep. 421, 
27 N. E. 344; Stone v. Burkhead, 
160 Ky. 47, 169 S. W. 489; Elia- 
son V. Grove, 85 Md. 215, 36 Atl. 
844; Gorton Pew Fisheries Co. 
V. Tolman, 210 Mass. 412, 97 N. 
E. 54; Phillips v. Phillips, 48 Pa. 
St. 178, 86 Am. Dec. 577; Zell v. 
Universalist Society, 119 Pa. St. 
390, 4 Am. St. Rep. 654, 13 Atl. 
447; Com. v. Burford, 225 Pa. 
93, 73 Atl. 1064; Hammond v. 
Ryman, 120 Va. 131, 90 S. E. 613; 
And see Martin v. Murphy, 221 
111. 632, 77 N. E. 1126; Feitler v. 
Dobbins, 263 111. 78, 104 X. E 



1284 Eeal Property. [§ 363 

Occasionally it lias been said to be of primary im- 
portance that the user, or the mode of exercising the 
user, have been in its nature permanent or approxi- 
mately permanent/^ and certainly the mere fact that 
the grantor is, at the time of the conveyance, making 
a temporary use of the land retained for the benefit of 
of the land conveyed, without any permanent adaptation 
of the land to the exercise of the user, is not calculated to 
induce the belief that the parties intend that the 
grantee shall be entitled to continue or repeat such 
user. Suppose for instance the grantor is piling on 
the land retained hay taken from the land conveyed, 
such temporary user of the land retained for the bene- 
fit of the land conveyed is an insufficient basis on 
which to support a construction of the conveyance as 
including a right in subsequent years so to pile the hay 
from the land conveyed. It is in this sense only, as 
involving a requirement of permanency in the mode 
of user that, as above indicated, the requirement of con- 
tinuousness seems to be appropriate in this connection. 

User must be necessary. In this countr^^ the 



cases usually say that an easement is not thus created 
in favor of the transferee of land, as corresponding to 
a preexisting qiiasi easement, unless the easement, or 
the particular user involved therein, is "necessary," 
qualifying this expression, however, by other words 
indicating that this requirement of necessity means 
little if any more than highly desirable. ^^ Thus it has 
been said that the easement must be necessary to the 

1088. Stephens v. Boyd, 157 Iowa, 570, 

It has been said that the re- 138 N. W. 389. And cases cited 

quirement of continuousness does (nite^ this subsection, note 9. 

not apply to the case of a way. 15. The English cases do not 

Hoffman v. Shoemaker, 69 W. Va. ordinarily refer to such a require- 

233, 34 L. R. A. (N. S.) 632, 71 S. ment, but occasionally they do 

E. 198. so. Wheeldon v. Burrows, 12 Ch. 

14. See Liquid Carbonic Co. v. Div. 31; Suffield v. Brown, 9 Jur. 

Wallace, 219 Pa. 457, 68 Atl. 1021; (N. S.) 1001; Watts v. Kelson, 



§ 363] 



Easements. 



1285 



proper enjoyment of the land,^*^ or to its reasonable/^ 
or convenient, ^^ or beneficial^*' enjoyment, or "reason- 
ably necessary" to its enjoyment or use,-° or to its 
convenient nse,^^ or "clearly necessary to its beneficial 
use. "22 



6 Ch. App. 166; Ewart v. Coch- 
rane, 4 Macq. 117. 

16. Evans v. Dana, 7 R. I. 306; 
Whiting V. Gaylord, 66 Conn. 337. 
50 Am. St. Rep. 87, 34 Atl. 85. 

17. Spencer v. Kilmer, 151 N. 
Y. 390, 45 N. E. 865; Cave v. 
Crafts, 53 Cal. 135; Robinson v. 
Clapp, 65 Conn. 365, 29 L. R. A. 
582, 32 Atl. 939; Eliason v. Grove, 
85 Md. 215, 36 Atl. 844; Powers 
v. Heffernan, 233 111. 597, 84 N. 
E. 661. 

18. Kane v. Templin, 158 
Iowa, 24 138 N. W. 901; Hankins 
v. Hendricks, 247 111. 517, 93 N. 
E. 428 (highly convenient and 
beneficial) ; Phillips v. Phillips, 
48 Pa. St. 178, 86 Am. Dec. 577; 
McElroy v. McLeay, 71 Vt. 396. 

19. Case v. Minot, 158 Mass. 
577, 22 L. R. A. 536, 33 N. E. 
700; Sandford v. Boss. 76 N. H. 
476, 84 Atl. 936; Carmon v. Dick, 
170 N. C. 305, 87 S. E. 224. 

20. Gaynor v. Bauer, 144 Ala. 
448, 3 L. R. A. (N. S.) 1082, 39 
So. 749; Wilson v. Riggs, 27 App. 
Cas. (D. C.) 550; Robinson v. 
Hillman, 36 App. Cas. (D. C.) 
241; John Hancock Mut. Life Ins. 
Co. V. Patterson, 103 Ind. 582. 53 
Am. Rep. 550, 2 N. E. 188; 
Teachout v. Duffus, 141 Iowa, 466, 
119 N. W. 983; Irvine v. Mc- 
Creary, 108 Ky. 495, 22 Ky. L. 
Rep. 169, 49 L. R. A. 417, 56 S. 
W. 966; Dolliff v. Boston & M. 
R. Co., 68 Me. 173 (clearly neces- 
sary to beneficial enjoyment) ; 



Dinneen v. Corporation for Relief 
of Widows & Children of the 
Clergy of Protestant Episcopal 
Church of the Diocese of Mary- 
land, 114 Md. 589, 79 Atl. 1021; 
Johnson v. Knapp, 146 Mass. 70, 
15 N. E. 134, 150 Mass. 267, 23 N. 
E. 40 ; Bussmeyer v. Jablonsky, 
241 Mo. 681, 39 L. R. A. (N. S.) 
549, Ann. Cas. 1913C, 1104. 145 S. 
W. 772; Sanford v. Boss, 76 N. 
H. 476, 84 Atl. 936 (to beneficial 
enjoyment) ; Taylor v. Wright, 76 
N. J. Eq. 121, 79 Atl. 433 (ditto) ; 
Fowler v. Wick, 74 N. J. Eq. 603, 
70 Atl. 682; Paine v. Chandler, 
134 N. Y. 385, 19 L. R. A. 99, 32 
N. E. 18; Baker v. Rice, 56 Ohio 
St. 463, 47 N. E. 653; Rightsell 
V. Hale, 90 Tenn. 556, 18 S. W. 
245; Rollo v. Nelson, 34 Utah, 
116, 26 L. R. A. (N. S.) 315, 96 
Fac. 263 (for use and convenient 
enjoyment) ; Goodal v. Godfrey, 
53 Vt. 219, 38 Am. Rep. 671; San- 
derlin v. Baxter, 76 Va. 299, 44 
Am. Rep. 165; Hammond v. Ry- 
man, 120 Va. 131, 90 S. E. 613 
(reasonably essential to its use); 
Miller v. Skaggs, 79 W. Va. 645, 
Ann. Cas. 1918D, 929, 91 S. E. 
536. 

21. New Ipswich W. L. Fac- 
tory v. Batchelder, 3 N. H. 190; 
John Hancock Mut. Life Ins. Co. 
V. Patterson, 103 Ind. 582, 53 Am. 
Rep. 550, 2 N. E. 188 (reasonably 
necessary to fair enjoyment). 

22. Stevens v. Orr, 69 Me. 323. 



1286 



Real Property. 



[§ 



It is impossible to deduce from the cases any general 
rule by which to determine the existence of this "neces- 
sity," so called, and such a rule is, perhaps, in the na- 
ture of things, impossible of formulation. That the 
necessity need not be absolute, in the sense that there 
can be no enjoyment whatsoever of the land without 
the exercise of the easement, is apparent from all the 
decisions.-^ In a few states it has been said that the 
question of necessity is determined by the consideration 
whether a substitute for the easement can be procured 
by ''reasonable" trouble and expense.^^ 



23. See McPherson v. Acker, 
MacArthur & M. (D. C.) 150. 48 
Am. Rep. 749; Cihak v. Klekr, 117 
111. 643, 7 N. E. Ill; John Han- 
cock Mut. Life Ins. Co. v. Pat- 
terson, 103 Ind. 582, 53 Am. Rep. 
f50, 2 N. E. 188; Dolliff v. Boston 
& M. R. Co., 68 Me. 173; Gorton 
Pew Fisheries Co. v. Tolman, 210 
Mass. 412, 97 N. E. 54; Bonelli 
\. Blakemore, 66 Miss. 136, 14 
Am. Si. Rsp. 550, 5 So. 228; Kelly 
V. Duncomb, 43 N. J. Eq. 62, 10 
Atl. 276; Lampman v. Milks, 21 
N. Y. 505; Paine v. Chandler, 134 
N. Y. 385, 19 L. R. A. 99, 32 N. E. 
18; Spencer v. Kilmer, 151 N. Y. 
390, 45 N. E. 865; Phillips v. 
Phillips, 48 Pa. St. 178, 86 Am. 
Dec. 577; Providence Tool Co. v. 
Corliss Steam Engine Co., 9 R. 
I. 564; Goodall v. Godfrey, 53 Vt. 
219, 38 Am. Rep. 671. 

It has been said, in two states, 
that the grant of an easement 
will be implied in cases of "strict 
necessity" only. Warren v. Blake, 
54 Me. 276; Stillwell v. Foster, 80 
Me. 333, 14 Atl. 731; Buss v. Dyer, 
125 Mass. 287. And see Malsch 



V. Waggoner, 62 Wash. 470. 114 
Pac. 446; Roe v. Walsh, 76 Wash. 
148, 136 Pac. 1146, 135 Pac. 1031. 
But in view of other decisions 
in these states it is evident that 
it is not meant by this that the 
easement must be necessary for 
the purpose of any enjoyment 
whatsoever of the land. See 
cases previously cited in this 
note, and Stevens v. Orr, 69 Me. 
233; Johnson v. Knapp, 146 Mass. 
70, 15 N. E. 134; Case v. Minot, 
158 Mass. 577, 22 L. R. A. 536, 33 
N. E. 700. Occasionally it has 
been said to be sufficient that 
the easement be highly convenient 
and beneficial. See Adams v. 
Gordon, 265 111. 87, 106 N. E. 
517. 

24. Warren v. Blake, 54 Me. 
276; Dolliff v. Boston & M. R. 
Co., 68 Me. 173; Johnson v. Jor- 
dan, 2 Mete. (Mass.) 234; Thayer 
V. Payne, 2 Cush. (Mass.) 327; 
Carbrey v. Willis, 7 Allen (Mass.) 
364, 83 Am. Del. 688; Randall v. 
M'Laughlin, 10 Allen (Mass.) 366; 
Smith V. Blanpied, 62 N. H. 652; 
Scott V. Beutel, 23 Graft. (Va.) 1, 



§ 363] Easements. 1287 

The fact tbat the easement is necessary for the pur- 
pose of a full enjoyment of the land conveyed is no doubt 
a consideration tending to show that the grantee of 
the land expects to have such an easement, correspond- 
ing to the preexisting quasi easement, as appurtenant to 
the land conveyed, and that the grantor expects him to 
have it. In other words the great desirability of the 
easement is a consideration, of greater or less weight, 
in favor of the assumption that the conveyance of the 
land is intended to be, not of the land alone, 
but of the land with the easement appurtenant 
thereto. Conversely, the fact that the easement is 
not highly desirable for the enjoyment of the land 
conveyed is a consideration adverse to the view that 
the grantor intends the grantee to acquire, or that 
the grantee expects to acquire, such easement. The 
courts tend in terms to base this requirement of neces- 
sity, so called, upon the impolicy of imphdng a grant 
in excess of the express words of the conveyance, and 
the desirability of making such implication only in case 
of necessity, but the meaning of this appears to be 
merely that the language of the conveyance is not to 
be extended by construction so as to include an case- 
ment not expressly referred to, and not before existing, 
unless this easement is so desirable for the full enjoy- 
ment of the land conveyed that a conveyance of the land 
without the easement is unlikely to have been within 
the contemplation of the parties. 

Actuality of user. Tlie mere fact that the 

land retained is capable of user in a particular way 
for the benefit of the land conveyed is obviously in itself 
no reason for regarding an easement of that character 
as passing by the conveyancCj^** and tlie fact that such 

25. See the excellent opinion of 26. Haverhill Sav. Bank v. 

Dodge, J., in Miller v. Hoeschler. Griffen, 184 Mass. 419, 68 N. E. 

126 Wis. 263, 8 L. R. A. (N. S.) 839; Latta v. Catawba Elec. Co., 

£27, 10.5 N. W. 790. 146 N. C. 285, 59 S. E. 1028; 



1288 



Eeal Property. 



r§ 363 



user has taken place in the past, during the common own- 
ership of the two properties, is immaterial if it was 
abandoned before the conveyance was made.^" That 
there has been a temporary cessation of the user at that 
time is not however, it seems, conclusive against the 
construction of the conveyance as passing the land 
with the easement as appurtenant thereto.^^ 

Character of conveyance. An easement has 

been regarded as thus passing because corresponding 
to a preexisting quasi easement, not only when the 
grantor retains the land which is sought to be subjected 
to the easement, but also when he disposes of this latter 
land by a contemporaneous conveyance.^** And it has 
been regarded as so passing upon a devise of land as 
well as of a conveyance,^^ and upon a lease as well as 
upon a conveyance in fee simple. ^^ Likewise a mortgage 



« Brown v. Dickey, 106 Me. 97, 75 
Atl. 382; Belser v. Moore, 73 Ark. 
296, 84 S. W. 219. 

27. Gorton Pew Fisheries Co. 
V. Tolman, 210 Mass. 412, 97 N. 
E. 54; Bauer & Co. v. Chamber- 
lain, 159 Iowa, 12, 138 N. W. 903; 
Van Rossum v. Grand Rapids 
Brewing Co., 129 Mich. 530, 89 
N. W. 370; McHart v. McMiiUin. 
30 Can. Sup. Ct. 245. 

28. Elliott V. Rhett, 5 Rich. L. 
(S. C.) 405, 57 Am. Dec. 750; 
Simmons v. Cloonan, 81 N. Y. 
557. 

29. Allen v. Taylor, 16 Ch. D. 
355; Phillips v. Low (1892), 1 Ch. 
47; Henry v. Koch, 80 Ky. 391, 
44 Am. Rep. 484; Stephens v. 
Boyd, 157 Iowa, 570, 138 N. W. 
S89; Larsen v. Peterson, 53 N. J. 
Eq. 88, 30 Atl. 1094; Baker v. 
Rice, 56 Ohio St. 463, 47 N. E. 
653; Cannon v. Boyd, 73 Pa. St. 



179. Compare Whyte v. Build- 
ers' League of New York, 164 N. 
Y. 429, 58 N. E. 517. As in the 
case of conveyances made by sev- 
eral cotenants for purposes of 
partition. O'Daniel v. Baxter, 112 
Ky. 334, 65 S. W. 805; Robinson 
V. Hillman, 36 App. Cas. (D. C.) 
241; Johnson v. Gould, 60 W. Va. 
84, 53 S. E. 798; Clark v. De- 
baugh, 67 Md. 430, 10 Atl. 241. 

30. Jones v. Sanders, 138 Cal. 
405; Cheda v. Bodkin, 173 Cal. 
7, 158 Pac. 1025; Stephens v. 
Boyd, 157 Iowa, 570, 138 N. W. 
389; Gorton Pew Fisheries Co. 
V. Tolman, 210 Mass. 402, 38 L 
R. A. (N. S.) 882, 97 N. E. 54; 
iViuse V. Gish, 114 Va. 90, 75 S. 
K. 764; Pearson v. Spencer, 3 B. 
& S. 761; Phillips v. Low, L. 
R (1892) 1 Ch. 47; Schwann v. 
Cotton (1916) 2 Ch. 120. 

31. See Snow v. Pulitzer 142 



^ 363] 



Easements. 



1289 



of the quasi dominant tenement may have a similar op- 
eration in this regard, the purchaser at a foreclosure 
sale thereof thus acquiring an easement corresponding 
to the quasi easement existing at the time of the mort- 
gage.^- And the same doctrine has been applied in favor 
of one acquiring title to the quasi dominant tenement by 
a judicial sale,^^ or a sale under execution,^^ and a 
conveyance in accordance therewith, and also in favor 
of one acquiring title from commissioners or other 
officials appointed to make partition.^^ 

Ownership of servient tenement. Since a per- 



son cannot create an easement in another's land, a 



N. Y. 263, 36 N. E. 1059; Thropp 
V. Field, 26 N. J. Eq. (11 C. E. 
Green) 82; Miller v. Fitzgerald 
Dry Goods Co., 62 Neb. 270, Si5 
N. W. 1078; Comm. v. Burford, 225 
Pa. 52, 73 Atl. 1064; and other 
citations in. 1 Tiffany, Landlord 
& Ten. § 128. 

32. Pendola v. Ramm, 138 Cal. 
517, 71 Pac. 624; John Hancock 
Mut. Life Ins. Co. v. Patterson, 
103 Ind. 582, 53 Am. Rep. 550, 2 
N. E. 188; Carrig v. Mechanics 
Bank, 136 Iowa, 261, 111 N. W. 
329; Havens v. Klein, 51 How. 
Pr. (N. Y.) 82; Pennsylvania R. 
Co. V. Jones, 50 Pa. St. 417. 

In Harlow v. Wlhitcher, 136 
Mass. 553, it was held that the 
fact that the mortgagee of land 
released a part thereof from tae 
mortgage did not impose an eas:- 
ment on the other part, as 
against the mortgagee, corre- 
sponding to a user then made by 
the mortgagor of the other part 
for the benefit of the part re- 
leased. 

In Cannon v. Boyd, 73 Pa. St. 
179, it was held, ai)parently, that 



an easement passed to a pur- 
chaser at a sale under the mort- 
gage although the quasi ease- 
ment did not exist until after the 
making of the mortgage. 

33. Zell V. Universalist Society, 
119 Pa. St. 390, 4 Am. St. Rep. 
654, 13 Atl. 447; Manbeck v. Jones, 
190 Pa. St. 171, 42 Atl. 536. 

34. Kieffer v. Imh.off, 26 Pa. 
St. 438; Building Association v. 
Getty, 11 Phila. 305. 

35. Kilgour v. Ascham, 5 Har. 
& J. (Md.) 82; Muir v. Cox, 110 
Ky. 560, 62 S. W. 73; Ellis v. 
Bassett, 128 Ind. 118, 25 Am. St. 
Rep. 421, 27 N. E. 344; Brakely 
V. Sharp, 9 N. J. Eq. 9, 10 Id. 
206; Goodall v. Godfrey, 53 Vt. 
219, 38 Am. Rep. 671; Burwell 
v. Hobson, 12 Gratt. (Va.) 322, 
65 Am. Dec. 247; Powell v. Riley, 
15 Lea (Tenn.) 153; Gentry v. 
Piercy, 175 Ky. 174, 193 S. W. 
1017. 

It has been applied in con- 
nection with the assignment of 
dower. Morrison v. King, 62 II!. 
30. Compare Smilh v. Smith, 62 
N. li. 652. 



1290 Real Property. [§ 363 

conveyance of land for the benefit of which other land, 
not belonging to the grantor, is used without right or 
merely under a license, does not have the effect of 
vesting in the grantee an easement corresponding to 
such prior use/^*' There are however decisions to the 
eff'ect that if, in such case, the grantor subsequently ac- 
quires the other land, such an easement will then arise 
in favor of the grantee on the principle of estoppel. ^^ 
The difficulty with this view would seem to be that 
there is nothing on which to base an estoppel. The 
original conveyance did not in terms purport to create 
an easement in favor of the grantee, and the user of 
another's land at the time does not, it seems, as does 
the user of his ovni land, seem a sufficient reason for 
construing it, as against the grantor, as an attempted 
conveyance of the land with an easement appurtenant 
thereto in such other's land."*^ 

Since one who has an undivided interest in particu- 
lar land cannot burden such land with an easement,^^ 
tliere can be no implication of a grant as corresponding 
to a preexisting qtiasi easement if there is an out- 
standing undivided interest in the property silbjected to 
the user.^*^ 

36. Trump v. McDonnell. 120 Latta v. Catawba Elec. Co., 146 
Ala. 200, 24 So. 353; Green v. N. C. 285, 59 S. E. 1028; .rarnigan 
Collins, 86 N. Y. 246. v. Mairs, 1 Humph. (Tenn.) 473. 

It has been decided that the 38. See Spencer v. Kilmer, 151 

fact that the owner of the land N. Y. 390, 45 N. E. 865. 

so used for the benefit of another's 39. Ante, § 361, note 35. 

land joins in a conveyance of the 40. Farley v. Howard, 60 X. 

latter, being the husband of the Y. App. Div. 173, 70 N. Y. Supp. 

owner thereof, does not impose an 51, 172 X. Y. 628, 65 N. E. IIIC; 

easement on his land. Farley v. Palmer v. Palmer, 150 N. Y. 139, 

Howard, 60 N. Y. App. Div. 193, 55 Am. St. Rep. 653, 44 N. E. 

172 N. Y. Supp. 28. 966. But See McElroy v. Mc- 

37. Swedish-American Nat. Leay, 71 Vt. 396, 45 Atl. 898, to 
Bank of Minneapolis v. Connec- the effect that in such case the 
ticut Mut. Life Ins. Co., 83 Minn. grantee would have a right to 
377, 86 N. W. 420; McElroy v. call for partition. 

McLeay, 71 Vt. 396, 45 Atl. 898; 



§ 363] 



Easements. 



1291 



Conveyance with ** appurtenances." The de- 
cisions are ordinarily to the effect that the fact that 
a conveyance of the quasi dominant tenement is ex- 
pressed to be "with the appurtenances" or with 
certain rights '^appertaining and belonging" or that 
similar general terms are nsed, does not in itself operate 
to create an easement in the grantee equivalent to 
the pre-existing quasi easement.^ ^ According to the 
English cases, however, a conveyance of land with the 
easements or rights "used and enjoyed therewith" 
will create in favor of the grantee an easement cor- 
responding to a quasi easement previously existing in 
favor of the land conveved.^- 



41. Worthington v. Gimson, 2 
Ell. & El. 618; Baring v. Abing- 
don (1892), 2 Ch. 374, 389; May 
V Smith, 3 Mackey (D. C.) 55; 
Kentucky Distilleries & Ware- 
house Co. V. Warwick Co., 166 
Ky. 651, 179 S. W. 611; Stevens 
V. Orr, 69 Me. 323; Oliver v. Hook, 
47 Md. 301; Duvall v. Ridout, 124 
Md. 193, L. R. A. 1915C, 345, 92 
Atl. 209; Grant v. Chase, 17 
Mass. 443, 9 Am. Dec. 161; Mor~ 
gt.n V. Meuth, 60 Mich. 238, 27 N. 
W. 509; Bonelli v. Blakemore, 66 
Miss. 136, 14 Am. St. Rep. 550, 5 
So. 228; Spaulding v. Abbott, 55 
N. H. 423; Stuyvesant v. Wood- 
ruff, 21 N. J. L. 133; Georke v. 
Wadsworth, 73 N. J. Eq. 448, 68 
Atl. 71; Michelet v. Cole, 20 N. 
Mex. 357, 149 Pac. 310; Parsonr, 
V. Johnson, 68 N. Y. 62, 23 Am. 
Rep. 149; Morris v. Blunt, 49 
Utah, 243, 161 Pac. 1127; Swazey 
V. Brooks, 34 Vt. 451; Standiford 
v. Goudy, 6 W. Va. 364. 

Occasionally, however, the use 
of the word "appurtenances" has 
been regarded as effective for 



this purpose. Thomas v. Owen, 
20 Q. B. Div. 225; Wood v. Gray- 
son, 22 App. Cas. (D. C.) 432; 
Ihoma.s v. Wiggers, 41 111. 470; 
Doyle V. Lord, 64 N. Y. 432, 21 
Am. Rep. 659; Elliott v. Bailee, 
14 Ohio St. 10; Miller v. Lapham, 
44 Vt. 416 (with privileges) ; 
Tayter v. North, 30 Utah, 156, 6 
L. R. A. (N. S.) 410, 83 Pac. 762. 
See Atkins v. Boardman, 2 Mete. 
(Mass.) 457, 37 Am. Dec. 100. 

42. Kay v. Oxley, L. R. 10 Q. 
B. 360; Watts v. Kelson, 6 Ch. 
App. 166; Barkshire v. Grubb, 18 
Ch. Div. 616, Bayley v. Great 
Western Ry. Co., 26 Ch. Div. 434. 
So, where the owner of two ad- 
joining tracts has used one (the 
fjudsi servient tenement) for the 
purpose of passing to the other 
(the quasi dominant tenement), 
while ,a conveyance of the lat- 
ter tenement "with appurte- 
nances" will not pass a right of 
way, the conveyance, if with the 
rights and easements "used and 
enjoyed therewith," will have 
that effect. Formerly it was held 



1292 



Eeal Pkoeerty. 



[§ 363 



Implied reservation. In some of the English 

cases, and likewise in some decisions in this country, 
it was held that, upon the transfer of the quasi servient 
tenement by the owner, there was an implied reservation 
of an easement corresponding to the quasi easement 
l)efore existing, that is, the same doctrine was applied 
in favor of the grantor of the land as in favor of the 
grantee.^^ The later English cases, however, are to the 
^effect that there no such reservation of an easement 
as corresponding to a preexisting quasi easement is 
to be implied, this view being based mainly on the 
theory that the assertion of such an easement by the 
grantor is in derogation of his own grant.^^ There are 
likewise in several states decisions or dicta somewhat 
adverse to the recognition of any such easement in 
favor of the grantor as corresponding to a preexisting 



that this principle applied only 
in case the quasi easement had, 
at a former time, when the gw^tsi 
dorhinant and servient tenements 
belonged to different persons, ex- 
isted as an actual easement. 
Thomson v. Waterlow, L. R. 6 
Eq. 36; Langley v. Hammond, L. 
R. 3 Exch. 168. This distinction 
is, however, no longer recog- 
nized. 

43. Pyer v. Carter, 1 Hurl. & 
N. 916; Thomas v. Owen, L. R. 
20 Q. B. D. 225; Cheda v. Bodkin, 
173 Cal. 7, 158 Pac. 1025; Cihak 
v. Klekr, 117 111. 643, 7 N. E. Ill; 
I'owers V. Heffernan, 233 111. 597, 
16 L. R. A. (N. S.) 523, 122 Am. 
St. Rep. 199, 84 N. E. 661; John 
Hancock Mut. Life Ins. Co. v. 
Patterson, 103 Ind. 582, 53 Am. 
Rep. 550, 2 N. E. 188; Lebus v. 
Boston, 21 Ky. Rep. 411, 47 L. R. 
A. 79, 51 S. W. 609; Irvine v. Mc- 
Creary, 108 Ky. 495, 49 L. R. A. 



417, 56 S. W. 966; Znamaneck v. 
Jelinek, 69 Neb. 110, 11 Am. St. 
Rep. 533, 95 N. W. 28; Dunklee 
V. Wilton R. Co., 24 N. H. 489; 
Taylor v. Wright, 76 N. J. Eq. 
121, 79 Atl. 433; Greer v. Van 
Meter, 54 N. J. Eq. 270, 33 Atl. 
794; Carmon v. Dick, 170 N. C. 
305, 87 S. E. 224; Seibert v. 
Levan, 8 Pa. St. 383, 49 Am. Dec. 
525; Geible v. Smith, 146 Pa. St. 
276, 28 Am. St. Rep. 796, 23 Atl. 
437; Grace M. E. Church v. Dob- 
bins, 153 Pa. St. 294, 34 Am. St. 
Rep. 706, 25 Atl. 1120; Rightsell 
V. Hale, 90 Tenn. 556, 18 S. W. 
245; Harwood v. Benton, 32 Vt. 
724; Bennett v. Booth, 70 W. Va. 
264, 39 L. R. A. (N. S.) 618, 73 
S. E. 909. 

44. White v. Bass, 7 Hurl. & 
N. 722; Suffield v. Brown, 4 De 
Gex, J. & S. 185; Wheeldon v. 
Burrows, 12 Ch. Div. 31; Ray v. 
Hazeldene (1904), 2 Ch. 17. 



•^ 363] 



Easements. 



1293 



quasi easement, it being sometimes stated that an ease- 
ment will be implied in favor of the grantor only when 
it is strictly necessary^^ or strictly necessaiy for the en- 
joyment of the land retained/^ that is, when it can be 
implied as an easement of necessity. In some the fact 
that the conveyance contains a warranty or covenant 
against encumbrances is referred to as one considera- 
tion adverse to recogiiition of such an easement in 
favor of the grantor, a view which appears to he open 
to considerable question, the purpose of a covenant in 
a conveyance not being to determine the construction of 
the instrument as regards the rights conveyed.'*^ 

The distinction asserted in the later English cases 
between the implication of a grant, and of a reservation, 



45. €herry v. Brizzolara, 89 
Ark. 309, 21 L. R. A. (N. S.) 
508, 116 S. W. 668; Warren v. 
Blake, 54 Me. 276; Mitchell v. 
Seipel, 53 Md. 251; Carbrey v. 
Willis, 7 Allen (Mass.) 364, S3 
Am. Dec. 688; Bass v. Dyer, 125 
Mass. 287; O'Brien v. Murphy, 
189 Mass. 353, 75 N. E. 700; Brown 
V. Fuller, 165 Mich. 162, 33 L. 
R. A. (N. S.) 459, Ann. Cas. 1912C, 
853, 130 N. W. 621; Dabney v. 
Child, 95 Miss. 585, 48 So. 897; 
Meredith v. Frank, 56 Ohio St. 
479, 47 N. E. 656; Sellers v. Texas 
Cent. Ry. Co., 81 Tex. 458, 13 
L. R. A. 657, 17 S. W. 32; Scott 
V. Eeutel, 23 Gratt. (Va.) 1; (so 
that substitute cannot be pro- 
cured at reasonable expense); 
Shaver v. Edgell, 48 W. Va. 502, 
37 S. E. 664. To this effect is 
Attrill V. Piatt, 10 Can. Sup. Ct. 
425. In Crosland v. Rogers, 32 
S. C. 130, 10 S. E. 874, it is said 
that the necessity must be im- 
perious. 

46. Walker v. Clifford, 128 Ala. 
2 R. l>.—1 



67, 86 Am. St. Rep. 74, 29 So. 
588; Wells v. Garbutt, 132 N. Y. 
-1-30, 30 X. E. 978. In Starrett v. 
Baudler, — ■ Iowa, — , 165 N. W. 
216 it is said that there must be 
no other reasonable mode of en- 
joying the dominant tenement 
without the easement. 

47. Cherry v. Brizzolara, 89 
Ark. 309, 21 L. R. A. (N. S.) 508, 
116 S. W. 668; Carbrey v. Willis, 
7 Allen (Mass.) 364, 83 Am. Dee. 
088; McSweeney v. Comm. 185 
Mass. 371, 70 N. E. 429; Brown 
V. Fuller, 165 Mich. 162, 33 L. R. 
A. (N. S.) 459, Ann. Cas. 1912C. 
853. 130 N. W. 621; Dabney v. 
Child, 95 Miss. 585, 48 So. 897; 
Denman v. Mentz, 63 N. J. Eq. 
613, 52 Atl. 1117; Howley v. Chaf- 
fee, 88 Vt. 468, 93 Atl. 120. Th;it 
the presence of such a oovenant 
in the conveyance is immaterial, 
see Bennett v. Booth, 70 W. Va. 
264, 39 L. R. A. (N. S.) 618. 73 
S. E. 909; Harwood v. Benton, 
32 Vt. 724. 



1294 Eeal, Property. [§ 363 

of an easement corresponding to a preexisting quasi 
easement, has been decided not to apply in connection 
with what have been termed ''reciprocal" easements, 
the only instance of which, given in the cases, is that of 
the support of buildings, the rule in regard to them 
l)eing that, when buildings are erected together by the 
same owner in such a way as obviously to require 
mutual support, and he thereafter conveys one of 
them, the grantee is regarded as impliedly giving the 
grantor a right of support for the house retained by 
him in consideration of the right of support impliedly 
granted for the house sold.^^ Likewise, in this country, 
it appears to be considered that, if one builds houses 
separated by a partition wall, and the houses are after- 
wards conveyed to different persons, with the division 
line running longitudinally through the wall, each house 
is ordinarily entitled to an easement of support in 
the part of the wall on the other's land, irrespective of 
whether it was conveyed by the builder before or 
after the conveyance of the other, that is, upon the 
severance of ownership the partition wall becomes a 
party wall.^^ It may be questioned, however, whether 
the easement of support in favor of the grantor in such 
cases might not rather be regarded as an easement 
of necessity. 

In order that an easement maj^ thus be recognized 
in favor of the grantor, by way of implied reservation, 
as corresponding to a preexisting quasi easement, the 

48. Richards v. Rose, 9 Exch. App. Cas. (D. C.) 427; Ingalls 
218; Suffield v. Brown, 4 De G2X. v. Plamondon, 75 111. 118; Everett 
J. & S. 185; Wheeldon v. Bur- v. Edwards, 149 Mass. 588. 5 L. 
rows, 12 Ch. Div. 31. See Steven- R. A. 110, 14 Am. St. Rep. 462. 
son V. Wallace, 27 Grat. (Va.) 77; 22 N. E. 52; Carlton v. Blake, 152 
Tunstall v. Christian, 80 Va. 1, Alass. 176, 23 Am. St. Rep. 818, 
56 Am. Rep. 581; Adams v. Mar- 25 N. E. 83; Partridge v. Gilbert, 
shall, 138 Mass. 228. Compare 15 N. Y. 601, 69 Am. Dec. 632; 
Clemens v. Speed, 93 Ky. 284, Rogers v. Sinsheimer, 50 X. Y 
19 L. R. A. 240, 19 S. W. 660. 646; Heartt v. Kruger, 121 N. Y. 

49. Bartley v. Spaulding n 386, 9 L. R. A. 135, 18 Am. St. 



§ 363] Easements. 1295 

user of the land conveyed for the benefit of that retained 
must, it is said, be apparent.^" And presumably any 
other requirement that may in the particular juris- 
diction be regarded as essential to the implication of 
an easement in favor of the grantee of land, such as 
continuousness and necessity, will be regarded as es- 
sential to such an implication in favor of the grantor. 

(c) Of easement of necessity. An easement 

of necessity, so called, is an easement which arises 
upon a conveyance of land, in favor of either the 
grantor or grantee of the land, by reason of a 
construction placed upon the language of the convey- 
ance in accordance with what appears to be the neces- 
sity of the case, in order that the land conveyed, or 
sometimes, the land retained, may be properly avail- 
able for use. 

The purpose for which a conveyance of land is 
made may call for a construction of the conveyance as 
vesting in the grantee an easement as appurtenant to 
the land, such an easement being necessary in order 
that the land may be used as intended. Thus one who 
conveys land to be used for a factory has been regarded 
as granting such an easement, as regards tlie pollution 
of air or water, as is evidently necessary to enable the 
land to be used for that business,^ ^ and if he conveys it 

Rep. 829, 24 N. E. 841; Schaefer 96 Wash. 529, 165 Pac. 385. 
V. Blumenthal, 169 N. Y. 221, 62 50. Biddison v. Aaron, 102 Md. 
N. E. 175. 156, 62 Atl. 523; Jobling v. Tut- 
But see Cherry v. Brizzolara, 89 tie, 75 Kan. 351, 9 L. R. A. (N. S.) 
Ark. 309, 21 L. R. A. (N. S.) 508, 960, 89 Pac. 699; Scott v. Beutel, 
116 S. W. 668, to the effect that 23 Gratt. (Va.) 1; Sellers v. Tex- 
this is so only if another wall as Cent. Ry. Co., 81 Tex. 458, 13 
cannot be built at a reasonable L. R. A. 657, 17 S. W. 32. As to 
expense. And as perhaps oppos- this requirement, see ante, this 
ed to the implication of an ease- subsection, notes 1-5. 
ment of support in such case see 51. Gale, Easements (8th Ed.) 
Clemens v. Speed, 93 Ky. 284, 19 113, note f; Goddard, Easements, 
L. R. A. 240, 19 S. W. 660; Wil- (6th Ed.) 205; Hall v. Lund, 1 
liamson Inv. Co. v. Williamson, Hurl. & C. 676; Huntington & K. 



1296 IIkai. Property. [§ 363 

for tlie purpose of erecting a building, he may well be 
regarded as granting such rights of support as are 
necessary for the building.^^ So, if one conveys land 
for railroad purposes, the conveyance involves in effect 
a grant of the right to construct and operate the rail- 
road in a proper manner, even in derogation of the 
grantor's natural rights as regards land retained by 
him,^^ and such an easement is like\\ise vested in the 
railroad when the land is taken under condemnation 
proceedings,^^ If one conveys 'minerals beneath his 
land, the grantee may be entitled, on the same theory of 
necessity, to the privilege of building air shafts and 
water storage facilities, of erecting machinery in or on 
the grantor's land, and of dumping waste thereon. ^^^ 
And in some states, while an easement of light is not 
recognized merely because of a 'preexisting quasi ease- 
ment of light, such an easement will, it seems, be 
recognized, when the access of light to the land granted 
over the land retained can be regarded as actually 
necessary.^^^ Likewise when buildings on adjoining 

Land Devel. Co. v. Phoenix Pow- Ry., 10 H. L. Cas. 333; Manning 

der Mfg. Co., 40 W. Va. 711, 21 S. v. New Jersey Short Line R. Co., 

E. 1037. 80 N. J. L. 349, 32 L. R. A. (N. 

And if he sells and conveys S.) 155, 78 Atl. 200. 

land adjoining his pond for an 54a. Williams v. Gibson, 84 

ice business he in effect grants a Ala. 228, 5 Am. St. Rep. 368, 4 

privilege to demand that the pond So. 350; Gordon v. Park, 219 Mo. 

be not drained. See 'Marshall 600, 117 S. W. 1163; Gordon v. 

Ice Co. V. LaPlant, 136 Iowa, 621, Million, 248 Mo. 155, 154 S. W. 

12 L. R. A. (N. S.) 1073, 111 N. 99; Marvin v. Brewster Co., 55 

W. 1016. X. Y. 538; Fowler v. Delaplain, 

52. Caledonian Ry. Co. v. 79 Ohio St. 279, 21 L. R. A. (N. 
Spr,ot, 2 Macq. H. L. Cas. 453; S.) 100, 87 N. E. 260; Turner v. 
Rigby V. Bennett, 21 Ch. Div. 559; Reynolds, 23 Pa. St. 199; Potter 
Siddons v. Short, 2 C. P. Div. 572; v. Rend, 201 Pa. 318, 50 AtL 821; 
Freeholders of Hudson County v. Dewey v. Great Lakes Coal Co., 
Woodcliff Land Co., 74 N. J. L. 236 Pa. 498, 84 Atl. 913; Arm- 
355, 65 Atl. 844. strong v. :Maryland Coal Co., 67 

53. See Lewis, Eminent Do- W. Va. 589, 69 S. E. 195; Dand 
main, § 474. v. Kingscote, 6 Mees. & W. 174. 

54. Elliot V Northeastern 54b. Ante, § 363(a), note 97. 



§ 363 J Easemknts. 1297 

lots belonging to a single person are dependent on one 
another for support, and lie conveys one of the lots, 
retaining the other, it may be considered that an ease- 
ment of support *'By necessity" exists in each lot and 
building in favor of the other ;^^° and even when there 
is a building upon but one of the lots, it would seem 
reasonable to recognize an easement of support, by way 
of necessity, for the land of such lot with the added 
weight of the building.^^^ 

Ways of necessity. By far the most usual 

instance of an easement of necessity is a way of neces- 
sity. Such an easement ordinarily arises when one 
conveys to another land entirely surrounded by his, the 
grantor's, land,^^ or which is accessible only across 
either the grantor's land or the land of a stranger.^^ 
In such a case, unless the conveyance is regarded as 
giving, as appurtenant to the land conveyed, a right 
of way over the land retained by the grantor, the 
grantee can make but a limited use, if any, of the land 

54c. Ante, § 363b, notes, 48, 56. Gilfoy v. RandaU, 274 lU. 

49. 128, 113 N. E. 88; Thomas v. Mc- 

54d. See Sterrett v. Baudler, Coy, 48 Ind. App. 403, 96 N. E. 

— Iowa, — , 165 N. W. 216. 14; Fairchild v. Stewart, 117 

55. Pomfret v. Ricroft, 1 Iowa, 734, 89 N. W. 1075; Adams 

Saund. 323, note 6; Pinnington v. v. Hodgkins, 109 Me. 361, 84 Atl. 

Galland, 9 Exch. 1; Tayloi* v. 530; Zimmerman v. Cockey, 118 

V/arnaky, 55 Cal. 350; Collins v. Md. 491, 84 Atl. 743; Pleas v. 

Prentice, 15 Conn. 39, 38 Am. Dec. Thomas, 75 Miss. 495, 22 So. 820* 

61; Mead v. Anderson, 40 Kan. Higbee Fishing Club v. Atlantic 

203, 19 Pac. 708; Leonard v. Leon- City Elec. Co., 78 N. J. Eq. 434, 

ard, 2 Allen (Mass.), 543; Powers 79 Atl. 326; Palmer v. Palmer, 

V. Harlow, 53 Mich. 507, 51 Am. 150 N. Y. 139, 55 Am. Rep. 653, 

Rep. 154, 19 N. W. 257; Board of 4t N. E. 966; Wooldridge v. Cough- 

Sup'rs of Lamar County v. Elliott. lin, 46 W. Va. 345, 33 S. E. 233; 

107 Miss. 841, 6G So. 203; Kim- Proudfoot v. Saffle, 62 W. Va. 51, 

ball V. Cochecho R. Co., 27 N. 12 L. R. A. (N. S.) 482, 57 S. E. 

H. 448, 59 Am. Dec. 387; Holmes 256. 

V. Seely, 19 Wend. (.N. Y.) 507; "The deed of the grantor as 

Bond V. Willis, 84 Va. 7{)»5, 6 S. much creates the way of necessity 

E. 136. as it does the way by grant. The 



1298 



Eeaxi Peoperty. 



[§ 363 



conveyed to liim, and the courts, in pursuance of con- 
siderations of public policy favorable to the full utiliza- 
tion of the land, and in accordance with the presumable 
intention of the parties that the land shall not be with- 
out any means of access thereto, have established this 
rule of construction that, in the absence of indications 
of a contrary intention, the conveyance of the land 
shall in such case be regarded as vesting in the grantee 
a right of way across the grantor's land.-^^ 

Xot only may a way of necessity arise in favor of 
the grantee of land, but it may also arise in favor of 
the grantor, when one conveys land which is so situated 
as to render land retained by him inaccessible except 
over the land conveyed or the land of a stranger.^* 



only difference between the two 
is, that one is granted in express 
words and the other only by im- 
plication." Nichols V. Luce, 24 
Pick. (Mass.) 102, 35 Am. Dec. 
302, per Morton, J. 

57. "Although it is called a 
way of necessity, yet in strict- 
ness, the necessity does not 
create the way, but merely fur- 
nishes evidence as to the real 
intention of the parties. For the 
law will not presume, that it 
was the intention of the parties, 
that one should convey land to 
the other, in such manner that 
the grantee could derive no bene- 
fit from the conveyance; nor that 
he should so convey a portion as 
to deprive himself of the enjoy- 
ment of the remainler. The law, 
under such circumstances, will 
give effect to the grant according 
to the presumed intent of the 
parties." Waite J., in Collins v. 
Prentice, 15 Conn. 39, 38 Am. 
Dec. 61. 



58. Clark v. Cogge, Cro. Jac. 
170; Pinnington v. Galland, 9 
Exch. 1; Corporation of London 
V. Riggs, 13 Ch. Div. 789; Collins 
V. Prentice, 15 Conn. 39, 38 Am. 
Dec. 61; Stamper v. McXabb, 172 
Ky. 253, 189 S. W. 216; White- 
house V. Cummings, 83 Me. 91, 23 
Am. St. Rep. 756, 21 Atl. 743; Jay 
V. Michael, 92 Md. 198, 48 Atl. 
61; Nichols v. Luce, 24 Pick. 
(Mass.) 102, 35 Am. Dec. 302; 
New York & N. E. R. Co. v. Board 
of Railroad Com'rs, 162 Mass. 81, 
38 N. E. 27; Pleas v. Thomas, 75 
Miss. 495, 22 So. 820; Herrin v. 
Sieben, 46 Mont. 226, 127 Pac. 
323; Pingree v. McDuffie, 56 N. 
H. 306; Shoemaker v. Shoe- 
maker, 11 Abb N. Cas. (N. Y.) 
80; Meredith v. Frank, 56 Ohio 
St. 479, 47 N. E. 656; Willey v. 
Thwing, 68 Vt. 128, 34 Atl. 428; 
Koffman v. Shoemaker, 69 W. Va. 
233, 34 L. R. A. (N. S.) 632, 71 S. 
E. 198. 



§ 363] Easements. 1299 

In such a case the conveyance is construed as passing, 
not land free from any easement, but land subject to 
an easement of a right of way in favor of the land re- 
tained. Such an implied reservation of an easement to 
a certain extent involves a violation of tlie rule which 
precludes one from derogating from his own grant, but 
it is recognized and upheld by the courts from the con- 
siderations of public policy above mentioned/"^^ 
The fact that the conveyance contains a warranty or 
other covenant of title has been regarded as insufficient 
to exclude such an implication,*'" though it might no 
doubt be excluded by language in the conveyance or, 
it seems, by evidence of surrounding circumstances, 
calling for a different construction.*''^'^ 

Since a reservation as w^ell as a grant of a right of 
way may thus be implied on the ground of necessity, it 
is iimnaterial, for the purpose of establishing a way 
on this ground, whether the asserted dominant tene- 
ment was disposed of by the common owner before or 
after the asserted servient tenement. 

In case the owner of land conveys to another 
timber growing thereon, the conveyance is to a great 
extent nugatory unless the grantee has the privilege of 
going on the land in order to cut the timber, and con- 
sequently the instrument would ordinarily be con- 
strued as granting such privilege or, in other words, 
he has a w^ay of necessity.*'^ And so a convej'^ance of 
minerals in the soil is ordinarily regarded as giving 
the privilege of passing over the grantor's land in 

59. See Packer v. Welsted, 2 York etc. R. C. v. Board of Rail- 
Sid. 39, 111; Button v. Tayler, 2 road Com'rs, 162 Mass. 81, 38 N. 
Lutw. 1487; Pinnington v. Gal- E. 27; Jay v. Michael, 92 Md. 
land, 9 Exch. 1. 198, 48 Atl. 61. 

60. Meredith v. Frank, 56 Ohio 60a. Post, this section, notes 
St. 479, 47 N. E. 656; McEwan 70-75. 

V. Baker, 98 111. App. 271; Powers 61. Pine Tree Lumber Co. v. 

V. Heffernan, 233 111. 597, 84 N. McKinley, 83 Minn. 419, 86 N. VV. 

E. 661; Brig-ham v. Smith, 4 Gray 414; Worthen v. Garno, 182 Mas.s. 

(Mass.) 297, 64 Am. Dec. 76; New 243, 65 N. E. 243. 



1300 



Eeal Property. 



[§ 363 



order to extract the minerals, and of constructing roads, 
tram and railway tracks to such an extent as may be 
necessary for this purpose,*^- and such a conveyance, 
moreover, in order that it may be effective, ordinarily 
involves of necessity the privilege of sinking shafts 
through the surface of the land for the purpose of ex- 
tracting the minerals.^2^ What is in effect a way of 
necessity may also exist in connection with the grant of 
an easement, in so far as this involves the necessity of 
passing over the grantor's land in order to exercise 
the easement.^^ 

A way of necessity does not, as is sometimes sup- 
posed, exist merely by reason of the fact that otherwise 
one has no access to his land.'^^ As above stated, it 



62. Dand v. Kingscote, 6 M. & 
W. 174; Consolidated Coal Co. v. 
Savitz, 57 111. App. 659; Marvin 
V. Brewster Iron Mining Co., 55 
X. Y. 538, 14 Am. Rep. 322. Baker 
V. Pittsburg C. & W. R. Co., 219 
Pa. 398, 68 Atl. 1014; Pearne v. 
Coal Creek M. & M. Co., 90 Tenn. 
619, 18 S. W. 402; Porter v. Mack 
Mfg. Co., 65 W. Va. 636, 64 S. 
E. 853; 1 Barringer & Adams, 
Mines & Mining, 576, 2 Id. 598. 

62a. Cardigan v. Armitage, 2 
Barn. & C. 197; Hooper v. Dora 
Coal Min. Co., 95 Ala. 235, 10 So. 
652; Ewing v. Sandoval C. & M. 
Co., 110 111. 290; Ingle v. Bot- 
toms, 160 Ind. 73, 66 N. E. 160; 
Marvin v. Brewster Iron Mining 
Co., 55 N. Y. 538; Baker v. Pitts- 
burg C. & W. R. Co., 219 Pa. 398, 
68 Atl. 1014; 3 Lindley, Mines, 
§ 813. 

In Chartiers Block Coal Co. v. 
Mellon, 152 Pa. St. 286, 18 L. R. A. 
702, 34 Am. St. Rep. 645, 25 Atl. 
597, the owner of land having 
conveyed to another the strata 



of coal beneath the surface and 
subsequently discovering the pres- 
ence of oil beneath the coal, as- 
serted the right to bore wells 
through the coal, and his claim 
was sustained. It was recognized 
however that it could not well 
be sustained on the theory of a 
way by necessity, without a con- 
siderable modification of that doc- 
trine, and the view was asserted 
that the right of access in such 
case should be sustained as a 
natural right. See editorial note 
17 Harv. Law Rev. at p. 47. And 
on the authority of this case it 
was held that there was a natural 
right to sink an artesian well 
through the strata of coal. Penn- 
sylvania Cent. Brew. Co. v. Le- 
high Valley Coal Co.. 250 Pa. 300, 
95 Atl. 47. 

63. Willoughby v. Lawrence, 
116 in, 11, 56 Am. Rep. 758, 4 
N. E. 356; R. J. Gunning v. Cusack, 
50 111. App. 290. 

64. Bullard v. Harrison, 4 
Maule & S. 387; Banks v. School 



<^ 363] 



Easements. 



1301 



arises in connection with a conveyance of land by one 
who retains adjoining land, and consequently it is 
necessary, in order to establish such a way, to show 
that at some time in the past the land for the benefit of 
which the way is claimed and that in which it is 
claimed belonged to the same person.''^ Provided this 
unity of o\^Tlership is shown to have existed, its remote- 
ness either in point of time or by reason of intervening 
conveyances appears to be immaterial.*^'^ 

Whether the previous ownership by the state or 
federal government of both pieces of land, with a sub- 
sequent grant or sale by it of one or both of them, is 
sufficient to justify a finding of a way of necessity, 
appears to b-e open to question. In one case^^ it was 



Directors of Dist. No. 1 of Mc- 
Lean County, 194 III. 247, 62 N. 
E. 604; Whitehouse v. Cummings, 
83 Me. 91, 23 Am. St. Rep. 756, 
21 Atl. 743; Brice v. Randall, 7 
Gill & J. (Md.)« 349; Nichols v. 
Luce, 24 Pick. (Mass.) 102, 35 
Am. Dec. 302; Roper Lumber Co. 
V. Richmond Cedar Works, 158 
N. Car. 161, 73 S. E. 902; Ellis 
V. Blue Mountain Forest Ass'n, 6!) 
N. H. 385, 42 L. R. A. 570. 41 
Atl. 856; Carmon v. Dick, 170 
N. C. 305, 87 S. E. 224; McKinnev 
V. Duncan, 121 Tenn. 265, 118 S. 
W. 683; Tracy v. Atherton. 35 
Vt. 52, 82 Am. Dec. 621; Schu- 
lenbarger v. Johnstone, 46 Wash. 
202, 35 L. R. A. (N. S.) 941, 116 
Pac. 843. 

65. Thrump v. :M€Donnell, 120 
Ala. 200, 24 So. 353; Stewart v. 
Hartman, 46 Ind. 331; Ellis v. 
Blue Mountain Forest Ass'n, 69 
N. H. 385, 42 L. R. A. 570, 41 
Atl. 856; Dudley v. Meggs, 54 Okla. 
65, 153 Pac. 1122; McBurney v. 
Glenmary Coal & Coke Co., 121 



Tenn. 275, 118 S. W. 694 (semble) ; 
Tracy v. Atherton, 35 Vt. 52, 82 
Am. Dec. 621; Crotty v. New 
River etc. Coal Co., 72 W. Va. 68, 
78 S. E. 233. 

66. See Taylor v. Warnaky, 55 
Cal. 350; Logan v. Stogsdale, 123 
Ind. 372, 8 L. R. A. 58, 24 N. E. 
135; Conley v. Fairchild 142 Ky. 
271, 134 S. W. 142; Feoffees of 
Grammar School in Ipswich v. 
Jeffrey's Neck Pasture, 174 Mass. 
572, 55 N. E. 462; Crotty v. New 
River & Pocahontas Consol. Coal 
Co., 72 W. Va. 68, 78 S. E 233. 

67. Herrin v. Siebern, 46 Mont. 
226, 127 Pac. 323, vi^here it was 
held that on a grant by the United 
States of odd numbered sections 
of land, there was implied res- 
ervation of a way of necessity in 
favor of the United States for 
the benefit of private persons de- 
siring to settle on the land re- 
tair,?d, or to go thereon for propei'- 
purposes, as to search for min- 
erals or graze cattle. 



1302 Eeal Property. [§ 363 

held that a right of way of necessity was to he regarded 
as reserved upon a grant hy the federal government, hut 
there are two cases to the effect that the doctrine of 
ways of necessity has no application in connection with 
such a grant.^^ And it has also been decided that 
such a right does not exist in favor of a grantee of 
the state over land retained by the state.*^^ It is not 
entirely clear why a conveyance by the government 
should be subject to a different rule in this respect 
from a conveyance by a private individual. The same 
intention may well be imputed to it as to an individual, 
not itself to hold or to vest in another land which 
cannot be utilized for lack of a means of approach, and 
the same considerations of public policy in favor of 
the utilization of the land apply in both cases. 

Since the grant or reservation of a way of neces- 
sity is implied merely to accord with the presumed 
intention of the parties, such an implication may be 
excluded by particular language in the conveyance.'*' 
So the fact that there was an express 'provision for 
some particular mode of access has been regarded as 
preventing the recognition of a way of necessity.'^ ^ 
And a like effect has been given to a reference in the 
conveyance to adjoining land, which extended to the 
highway, as belonging to the grantee, the grantee 
claiming under such conveyance being precluded from 
denying the correctness of such reference and con- 
sequently from denying that he has this other means 
of access to the highway.'^^ It might also be excluded, 
it seems, by evidence of extrinsic facts."^ An intention 

68. Bully Hill Copper Min. & 71. Georke Co. v. Wadsworth. 
Smelting Co. v. Bruson, 4 Cal. 73 N. J. Eq. 448, 68 Atl. 71; Bas- 
App. 180, 87 Pac. 237; United com v. Cannon, 158 Pa. 225, 27 
States V. Rindge, 208 Fed. 611. Atl. 968. 

69. Pearne v. Coal Creek M. & 72. Doten v. Bartlett, 107 Me. 
M. Co., 90 Tenn. 619, 18 S. W. 351, 32 L. R. A. (N. S.) 1075, 78 
402. Atl. 456. 

70. Seely v. Bishop, 19 Conn. 73. See Mead v. Anderson, 40 
128. Kan. 203, 19 Pac. 708; Seeley v. 



§ 363] Easements. 1303 

to grant or reserve such an easement, for instance, could 
not well be presumed in ease there was an oral agree- 
ment that no right of way should existJ* And so if 
land is conveyed with an explicit understanding that it 
is to be covered by a building, it could not well be con- 
tended tliat the grantor had a right of way of necessity 
throuah the building. 

If, in a conveyance of land, a way is provided, it 
has been said, which gives access for ordinary purposes 
to the lot granted, no way of necessity will arise, al- 
though that way is not sufficient for all purposes,^^ or, 
to exjDress it more in accordance \\'ith principle, the 
existence of a way for ordinary purposes is sufficient 
to exclude any presumption of an intention that a way 
for all purposes shall exist. 

An easement of necessity, like any other easement, 
cannot be imposed upon land not owned by the gran- 
tor,"^^ or in which he has an undivided interest only."^ 

Since a way of necessity exists by reason of a con- 
struction of the conveyance, based on the necessity of 
such way to the user of the land conveyed or retained, it 
is the necessity which exists at the time of the conveyance 
which determines the existence of the way, and not a 
necessity which may subsequently arise by reason of a 
change of circurastances.'^^'^' A conveyance is to be 

Bishop, 19 Conn. 128. wood v. West, 171 Ala. 463, 54 

74. Lebus v. Boston, 21 Ky. So. 694. 

Law Rep. 411, 47 L. R. A. 79, 92 77. Woodworth v. Raymond, 51 

Am. St. Rep. 333, 51 S. W. 607. Conn. 70; Marshall v. Trumbull, 

See Ewert v. Burtis (N. J. Ch.) 28 Conn. 183. But if the various 

12 Atl. 893. owners of the land make deeds 

75. Haskell v. Wright, 23 N. J. for the purpose of partition 
Eq. 389. one who acquires a tract not 

76. Consequently there is no otherwise accessible would have 
grant of a right of way by neces- a way of necessity. Palmer v. 
sity when the land granted and Palmer, 150 N. Y. 139, 55 Am. St. 
that retained meet only at a Rep. 653, 44 N. E. 966. 
mathematical point, that is, when 77a. Kentucky Distilleries & 
merely a corner of one touches Warehouse Co. v. Warwick Co., 
a corner of the other. Green- 1C6 Ky. 651, 179 S. W. Oil; Cor- 



1304 Eeal Property. [§ 363 

construed with reference to the circumstances existing 
at the time of its execution and not those subsequently 
arising. 

The grant of a way of necessity is implied in order 
to enable one to utilize his own land and not to enable 
him to utilize other land, and consequently one has no 
such right over another's land merely because of his in- 
ability otherwise to reach public land where he desires 
to pasture his cattle.'^'^^ 

While the implication of a way of necessity is 
almost invariably for the purpose of access to the 
hind from the highway, occasionally a way of necessity 
has been recognized, apparently without reference to 
the question of its necessity for the purpose of access 
from the highway, but merely to give access to other 
land belonging to the same person, when he has 
conveyed an intervening strip for a railroad right of 
way.'^^ 

Upon a subsequent transfer of the dominant tene- 
ment a way of necessity appurtenant thereto, like any 
other easement, passes without any mention thereof.'^ 
And the burden passes upon the conveyance of the ser- 

nell Andrews Smelting Co. v. conveyed a strip of land to a 

Boston & P. R. Co., Corp., 202- railroad company for a right of 

Mass. 585, 89 N. E. 118. Post, this way was, upon the Subsequent 

section, notes 97-99. discovery of natural gas, re- 

77b. Mcllquhain v. Anthony garded as entitled to a way by 

Wilkinson Live Stock Co., 18 Wyo. necessity thereover for a pipe 

53, 104 Pac. 20. line to conduct gas to his dwell- 

78. Cleveland, etc., R. Co. v. ing. Uhl v. Ohio River R. Co., 

Smith, 177 Ind. 524, 97 N. E. 164; 47 W. Va. 59, 34 S. E. 934. 

Pittsburgh, C. C. & St. L. Rwy. Co. 79. Taylor v. Warnaky, 55 Cal. 

V. Kearns, 58 Ind. App. 694, 108 SbO; Conley v. Fairchild, 142 Ky. 

N. E. 873; Vandalia R. Co. v. 271, 134 S. W. 142; Bean v. 

Furnas, 182 Ind. 306, 106 N. E. Bean, 163 Mich. 379, 128 N. W. 

401; New York, etc., R. Co. v. 413; Pleas v. Thomas, 75 Miss. 

Railroad Commissioners, 162 495. 22 So. 820; Wcoldridge v. 

Mass. 81, 38 N. E.-27. In one case Coughlin, 46 W\ Va. 345, 33 S. E. 

the owner of land who had 223. 



^ 363] 



Easements. 



1305 



vient tenement except as against a purchaser for 
value without notice.^" 

Character of conveyance. A way of necessity 



may arise r?pon a conveyance of land although at the 
same time the grantor conveys away the balance of his 
land to another,^^ and so it may arise upon a devise.^- 
It may also arise by force of a lease.^^' It has been 
regarded as arising on a conveyance by a trustee,^* and 
also by an executor.^^ 

A way of necessity has been regarded as arising 
not only when the severance of the ownership of the 
two pieces of land occurs as a result of voluntary 
transfer, but also when it occurs as a result of legal 
proceedings,^*^ as when one piece is sold under a lien,^^ 
or under execution,^^ or is taken under condemnation 
proceedings.'^^ And likewise when the severance of the 



80. Logau V. Stogsdale, 123 
Ind. 372, 8 L. R. A. 58, 24 N. E. 
135; Jay v. Michael, 92 Md. 198; 
Fairchild v. Stewart, 117 Iowa, 
734, 89 N. W. 1075; Thomas v. 
McCoy, 48 Ind. App. 403, 96 N. 
E. 14; Higbee Fishing Club v. 
Atlantic City Electric Co., 78 N. 
J. Eq. 434, 79 Atl. 326. 

81. Palmer v. Palmer, 150 N. 
Y. 139, 55 Am. St. Rep. 653, 44 N. 
E. 966; Mitchell v. Seipel, 53 Ind. 
251. 

82. Mclntire v. Lauchner, 108 
Me. 443, 81 Atl. 784; Conover v. 
Cade, 184 Ind. 604, 112 N. E. 7. 

In Mancuso v. Riddlemoser, 117 
Md. 53, 82 Atl. 1051, it was held 
that when the control of a door 
in the cellar of a building was 
"strictly necessary" for purposes 
of ventilation and the manage- 
ment of the heating apparatus, 
the right to control it would 
be implied in favor of the owner 



of the building as against one 
to whom he had leased a part of 
the building including the cellar 
S3. Tutwiler Coal, Coke &-. 
Iron Co. V. Tuvin, 158 Ala. 657. 
48 So. 79; Powers v. Harlow, 53 
Mich. 507, 51 Am. Rep. 154, 19 N. 
W. 257. 

84. Howton v. Frearson, 8 
Term Rep. 50. 

85. Collins v. Prentice, 15 
Conn. 39, 38 Am. Dec. 61. 

86. See Bean v. Bean, 163 
Mich. 379, 128 N. W. 413. 

87. San Joaquin Valley Bank 
v. Dodge, 125 Cal. 77, 57 Pac. 
687; Proudfoot v. Saffle, 62 W. 
Va. 51, 12 L. R. A. (N. S.) 482, 
57 S. E. 256. 

88. Damron v. Damron, 119 
Ky. 806, 84 S. W. 747. 

89. Clcvchmd, C, C. & St. L. 
R. Co. v. Smith, 177 Ind. 524, 97 
N. E. 164. 



1306 



Real Peoperty. 



[§ 36^ 



ownership occurs as a result of partition proceedings. ^"^ 
It has also been regarded as arising when land is set 
off by appraisement under an execution, in such a way 
that either the land retained by the debtor or that set 
off is otherwise inaccessible.^^ In all these cases in 
which a way of necessity is regarded as arising in favor 
of one who acquires land by legal jDroceedings, the 
''implied grant" of the way is, it seems, properly to 
be regarded as based on a construction of the language 
of the official conveyance, or of the decree, as intended 
to include the right of way. 

Degree of necessity. A way of necessity will 



not ordinarily be recognized if there is another mode 
of access to the land, though much less convenient, that 
is, as has been sometimes said, a way of convenience 
is not a way of necessity.^^ ^j^^j g^ ^^^ ^^^^ ^|-^^^ ^1^^ 



90. Blum V. Weston, 102 Cal. 
362, 36 Pac. 778, 41 Am. St. Rep. 
188; Mesmer v. Uharriet, 174 Cal. 
110, 162 Pac. 104; Ritchey v. 
Welsh, 149 Ind. 214, 48 N. E. 1031, 
40 L. R. A. 105; Goodal v. God- 
frey, 53 Vt. 219, 38 Am. Rep. 
671. 

91. Pernam v. Wead, 2 Mass. 
203, 3 Am. Dec. 43; Taylor v. 
Townsend, 8 Mass. 411, 5 Am. 
Dec. 107; Russell v. Jackson, 2 
Pick. (Mass.) 574; Schmidt v. 
Quinn, 136 Mass. 575. 

92. Dodd V. Burchell, 1 Hurl. 
& C. 113; Corea v. Higuera, 153 
Cal. 451, 17 L. R. A. (N. S.) 1019, 
95 Pac. 882; Sterricker v. Mc- 
Bride, 157 111. 70; Ward v. Robert- 
son, 77 Iowa, 159, 41 N. W. 603; 
Hall V. McLeod, 2 Mete. (Ky.) 
98, 74 Am. Dec. 400; Whitehouse 
V. Cummings, 83 Me. 91, 23 Am. 
St. Rep. 756, 21 Atl. 743; Mitchell 
V. Seipel, 53 Md. 251; Nichols v. 



Luce, 24 Pick. (Mass.) 102; Dab- 
ney v. Child, 95 Miss. 585, 48 So. 
897; Field v. Mark, 125 Mo. 502. 
28 S. W. 1004; Roper Lumber 
Co. V. Richmond Cedar Works, 158 
N. C. 161, 73 S. E. 902; Meredith 
V. Frank, 56 Ohio St. 479, 47 N. 
E. 656; Lankin v. Terwilliger, 22 
Ore. 97, 29 Pac. 268; Valley Falls 
Co. V. Dolan, 9 R. I. 489; Bailey 
V. Gray, 53 S. C. 503, 31 S. E. 
354; Alley v. Carleton, 29 Tex. 
74; Dee v. King, 73 Vt. 375, 50 
Atl. 1109; Malsch v. Waggoner, 
62 Wash. 470, 114 Pac. 446 iseyn- 
ble) ; Mcllquahain v. Anthony Wil- 
kinson Live Stock Co., IS Wyo. 
53, 104 Pac. 20. 

As to whether the use of a 
staircase on adjoining property 
could, under the circumstances, be 
regarded as necessary and not 
merely convenient, see Galloway 
V. Bonesteel, 65 Wis. 79, 56 Am. 
Rep. 616, 26 N. W. 262; Stillwell 



§ 363] 



Easements. 



130' 



existing- wav is steep or narrow,^^ or can be made 
available onlv bv the expenditure of money or labor,"'' 
has been held not to justify a finding of a way of 
necessity. On the other hand there are decisions to 
the effect that if the cost of the construction of a road 
over one's own land, as a means of access to any 
particular portion thereof, would involve very great 
expeuse, out of proportion to the value of the land 
itself, there is such a necessity for a way over another's 
land as to justify the recognition of a way of necessity.^^ 
Whether the fact that the land is otherwise 
accessible only by water is a justification for assuming 
the existence of a way of necessity across the land is a 
matter as to which the cases are not entirely clear."'^ 



V. Foster, 80 Me. 333, 14 Atl. 731; 
Quimby v. Shaw, 71 N. H. 160, 51 
Atl. 656. 

93. Kripp V Curtis, 71 Cal. 62, 
11 Pac. 879; Gaines v. Lunsford, 
120 Ga. 370, 47 S. E. 967, 102 Am. 
St. Rep. 109; Dudgeon v. Bron- 
pon, 159 Ind. 562, 95 Am. St. Rep. 
815; Turnbull v. Rivers, 3 Mc- 
Cord (S. C.) 131, 15 Am. Dec. 622; 
United States v. Rindge, 208 Fed. 

611. 

94. Carey v. Rae, 58 Cal. 159; 
Gaines v. Lunsford, 120 Ga. 370, 
102 Am. St. Rep. 109, 47 S. E. 
967; Nichols v. Luce, 24 Pick. 
(.Mass.) 102, 35 Am. Dec. 302; 
Dee V. King, 73 Vt. 375, 50 Atl. 
1109; Shaver v. Edgell, 48 W. 
Va. 502, 37 S. E. 664; Fitchett v. 
Mellow, 29 Ont. Rep. 6. See Mes- 
mer v. Uharriet, 174 Cal. 110, 162 
Pac. 104. 

95. Smith V. Griffin, 14 Colo. 
429, 23 Pac. 905; Watson v. 
French, 112 Me. 371, L. R. A. 
1915C, 355, 92 Atl. 290; Pettin- 
gill V. Porter, 8 Allen (Mass.) 1, 



85 Am. Dec. 671; Foeffees of 
Grammar School in Ipswich v. 
Proprietors of Jeffrey's Neck Pas- 
ture, 174 Mass. 572; O'Rorke v. 
Smith, 11 R. I. 259, 23 Am. Rep. 
440; Crotty v. New River & Poca- 
hontas Consol. Coal Co., 72 W. 
Va. 68, 78 S. E. 230. See as to 
the citerion of disproportionate 
expense, U. S. v. Rindge, 208 Fed. 

eii. 

96. In Feoffees of Grammar 
School in Ipswich v. Proprietors 
of .Jeffrey's Neck Pasture, 174 
Mass. 572, it was decided that a 
way of necessity existed, although 
there was access by water, if 
the latter mode of access was 
not available for general purposes 
to meet the requirements of the 
uses to which the property would 
naturally he put. And in Jay v. 
Michael, 92 Md. 198. it is assum- 
ed that the fact of access by 
water is immaterial. But in Kings- 
ley V. Gouldsboroug'h Land Im- 
provement Co., 86 Me. 280; Ilil- 
dreth v. Googins, 91 Me. 227; 



1308 Real Peopeety. [§ 363 

Since the recognition of a way -of necessity is 
based on the intention imputed to the parties at the 
time of the severance of the ownership, it follows that 
the existence of the privilege, and also its extent, is 
to be determined with reference to what is necessary for 
the use of the premises in the manner contemplated 
by the parties at the time of such severance.^ '^ So if 
the parties contemplate a use of the land for a par- 
ticular business, there is a right of way of necessity 
sufiScient for the purposes of the business, if no other 
way sufficient for that purpose exists,^^ and if the 
parties contemplate a use of the land for a residence, 
there is a way of necessity sufficient for that purpose, 
if no other way so sufficient exists.^** The fact that 
a particular use of the land is being made at the time 
of the severance of ownership does not of itself 
show that the parties do not contemi:)late the possibility 
of another use of the land, and hence does not pre- 
clude the recognition of a way of necessity, upon a sub- 
sequent change of use, in accord with the requirements 
of the latter rather than of the former use.^ And 
the view has been taken that the parties are to be pre- 
sumed, in the absence of any evidence on the subject, 
to have in mind any lawful use of the land.^ 

Lawton V. Rivers, 2 McCord (S. Riggs, L R. 13 Ch. D. 798. See 

C.) 445; Turnbull v. Rivers, 3 Mc- Mitchell v. Seipel, 53 Md. 251. 

Cord (S. C.) 131; Fitchett v. 98. Gaylord y. Mtoffat, L. R. 4 

Mellow, 29 OM. Rep. 6,— it was Ch. App. 133. 

decided that no such right of way 99. Camp v. Whitman, 51 N. 

existed, when there was access J. Eq. 467 26 Atl. 917. 

by water, it being left, in the i. in Myers v. Dunn, 49 Conn, 

second of the cases cited, to the 71 it was decided that although 

jury to say whether the access thre was an express grant of a 

by water was "available". See right of way for carting wood 

also Staples v. Cornwall 114 App. from the land, a residence hav- 

Div. 596, 99 N Y Supp. 1009. ing subsequently been erected 

97. Wlhittier v. Winkley, 62 N. thereon, there was a way of ne- 

H. 338; Camp v. Whitman, 51 cessity thereto for general i>ur- 

N. J. Eq. 467, 26 Atl. 917, discuss- poses, 

ing Corporation of London v. 2. Whittier v. Winkley, 62 N. 



§ 364] Easements. 1309 

The grantor or grantee of land obvionsly cannot, 
by the subsequent erection of obstacles to access to the 
land, create a necessity for this purpose which did not 
exist at the time of the severance of ownership,^ nor 
can he create such a necessity by such subdivision of 
his property as he may subsequently make on the 
sale thereof.^^ 

That the grantee of land, being a municipality or 
subdivision of a state, has the right to obtain land for 
a road b}^ condemnation proceedings does not pre- 
clude it from claiming a way of necessity.^*^ 

§ 364. Prescription. An easement may be acquired 
by the adverse user of another's land for a certain 
period, usually the same as that required to give title 
to land itself by disseisin or adverse possession. The 
acquisition of an easement in this manner is termed 
''prescription," and is based on tlie theory that if one 
makes use of another's land, not by permission, and 
the owner fails to interfere to prevent such use, such 
acquiescence is, in order to prevent litigation, and also 
to obviate the difficulty of yiroving title after lapse of 
time, to be considered as conclusive evidence that the 
user is rightful. The subject of prescription will l)e 
considered in another part of this work.* 

H. 338, disapproving Gorpoiation of access was available for gen- 

of London v. Riggs, 13 Ch. Div. eral purposes to meet the requiro- 

798; Grotty v. New River & Poca- ments of the uses to which the 

hontas Consol. Coal Co.. 72 W. plaintiff's property would natural- 

Va. 68, 78 S. E. 233. Compare ly be put. 

Higbee Fishing Club v. Atlantic 3. Mitchell v. Seipel, 53 Md. 

Electric Co., 78 N. J. Eq. 434, 71) 251. 

Atl. 326. 3a. Lankin v. Terwilliger, 22 

In Foeffees of Grammar School Ore. 97, 29 Pac. 268; U. S. v. 

in Ipswich v. Proprietors of Jef- Rindge, 208 Fed. 611. 

frey's Neck Pasture, 174 Mass. 3b. Board of Sup'rs of Lamar 

572, it was said that the exist- County v. Elliott, 107 Miss. 368. 

ence of a way of necessity was f!6 So. 203. 

to be determined by the consid- 4. Post, §§-514-533. 
eration whether any other mode 
2 R. P.— 8 



1310 Real Pkoperty. [§ 365 

§ 365. Acquisition under statute. An easement 
may, by force of a particnlar statute, be acquired in 
the land of anotlier for a public use, by proceedings 
under the power of eminent domain, and payment of 
adequate compensation. The most prominent instances 
of easements so acquired are the right of way privilege 
acquired by a railroad company through the land of an 
individual,^ and the privilege of the owner of land on a 
watercourse, under what are known as the ''Mill Acts," 
of flooding the land of another by the erection of a dam 
for manufacturing or milling purposes.® In some states 
the statute provides for the acquisition, by a company 
formed for irrigation purposes, of the privilege of 
constructing canals, aqueducts, or reservoirs on the 
land of individuals,'^ and a somewhat similar pri\dlege 
is frequentlj^ given by statute to local associations 
formed to construct canals and ditches for the drainage 
and reclamation of marshy districts.^ Another instance 
of an easement created by statute is the obligation, im- 
posed by statute in some states, to contribute to the 
erection and maintenance of a partition fence.*^'^*^ 

As to party walls. In the absence of a statu- 
tory provision in this regard, or of the grant of an 

5. 1 Lewis, Eminent Domain, it is decided that a landowner's 
§§ 263, 449, 584; 3 Elliott, Rail- right to have cattleguards main- 
roads, § 950 ct scq. tained by a railway company is 

6. Gould, Waters, §§ 253, 579 a "statutory easement," and that 
et seq.; anfe § 339e. consequently a release thereof by. 

7. 1 Lewis, Eminent Domain, him is binding on his successor 
§ 308; Fallbrook Irrigation Dist. in title. Such a view would prob- 
V. Bradley, 164 U. S. 112; Oury ably not be accepted by all 
V. Goodwin (Ariz.) 26 Pac. 376; courts. 

In re Madera Irrigation Dist., 92 8. Lindsay Irrigation Co. v. 

Cal. 309, 27 Am. St. Rep. 106; Mehrtens, 97 Cal. 676; NefE v. 

Paxton & H. Irrigating Canal & Reed, 98 Ind. 341; Norfleet v. 

Land Co. v. Farmers & Merchants Cromwell, 70 N. C. 634, 16 Am. 

Irrigation & Land Co., 45 Neb. 884, Rep. 787; Tidewater Co. v. Coster, 

50 Am. St. Rep. 585. 18 N. J. Eq. 518. 

In Gulf & S. I. R. Co. V. Chap- 9-10. See ante, § 357. 
man, 102 Miss. 778, 59 So. 889, 



§ 3G5] Easements. 1311 

easement to tliat effect, one of two adjoining owners 
cannot place a wall wholly or in part on the other's 
land. In several states, however, there are statutes in 
this regard, usually to the effect that one owner may 
place a wall to a certain extent upon the adjoining 
owner's land, which wall the other will have the right 
to use upon payment of half the cost.^^ 

A wall is not such as is contemplated by the 
statute, it has been decided, unless it is susceptible of 
user as a party wall,^- and it has on this theory been 
decided that the wall cannot have openings, such as 
windows, therein. ^^ That is, though the wall belongs, 
when built, to the projorietor who builds it, until the 
other pays his proportion of the costs, ^^ he has no right, 
under the statute, to build in part on the other's land 
any but a solid wall. 

A wall erected by one proprietor has been regarded 
as a party wall for the purpose of the statute, so as 
to give the adjoining owner certain rights therein, if its 
foundation is jDartly on the latter 's land, even though 

11. A statute providing that C. 480; Robinson v. Hillman, 36 
one may erect a wall in part up- App. D. C. 576. 

on the land of an adjoining 13. Smoot v. Heyl, 34 App. D. 

owner, to be used by both as a C. 480; Kiefer v. Dickson, 41 Ind. 

party wall, has been held to be App. 543, 84 N. E. 523; Traute 

unconstitutional in Massachusetts. v. White, 46 N. J. Eq. 437, 19 

Wilkins v. Jewett, 139 Mass. 29. Atl. 196; Sullivan v. Graffort, 35 

And there are dictia to that ef- Iowa, 531; Vollmer's Appeal, 61 

feet in New Jersey. Traute v. Pa. 118. Contra, Jeannin v. De 

White, 46 N. J. Eq. 437, 19 Atl. Blance, 11 La. Ana. 465; Pierce v. 

196; Schmidt v. Lewis, 63 N. J. Lemon, 2 Houst. (Del.) 519. 

Eq. 565, 52 Atl. 707. That such a The Iowa statute authorizes 

statute is valid, see Swift v. Cal- openings to be made upon taking 

nan, 102 Iowa, 206, 37 L. R. A. measures to protect the other 

462, 63 Am St. Rep. 443, 71 N. W. proprietor. See Shoemaker v. 

233; Evans v. Jayne, 23 Pa. 34; Wallace, 154 Iowa, 236, 134 N. 

Heron v. Houston, 217 Pa. 1, 118 W. 740. 

Am. St. Rep. 898, 66 Atl. 108; 14. Jeannin v. De Blance, 11 

Hunt V. Ambuston, 17 N. J. Eq. La. Ann. 465; Cordill v. Israel, 

208. 130 La. 138, 57 So. 778; Bertram 

12. Smoot V. Heyl, 34 App. D. v. Curtis, 31 Iowa, 46. 



1312 Real Peoperty. [§ 365 

the part of the wall above the ground is wholly within 
the limits of the land belonging to the builder.^ ^ When, 
however, the wall was not intended to encroach upon 
the other's land, but did so by accident and to but 
a slight extent, and there was nothing to indicate that 
it was intended to be used as a party wall, such other 
was considered to have no rights therein, though he 
could insist that the encroaching part should be re- 
moved.''' Even a wall erected entirely on one's ovni 
land may, it appears, under the Pennsylvania statute, 
be a party wall for the purposes of the adjoining owner 
if it was so intended by the one erecting it.^" 

The privilege, under the statute, of erecting a wall 
partly on the adjoining land for the use of both pro- 
prietors has been held to override the privilege of the 
adjoining owner of erecting a wall on his own land for 
his exclusive use, and a wall of the latter character may 
be destroyed if this is necessary for the purpose of 
erecting a wall of the former character.^^ 

There has been held to be a user by one pro- 
prietor of a wall erected by the other, so as to make the 
former liable under the statute for part of the cost, 
when he utilized the wall as one side of a permanent 
frame building erected by him, though he did not use 
the wall for purposes of support, ^'^ while the erection 
of a merely temporary shed against the wall was held 

15. Lukens v. Lasher, 202 Pa. University of Pennsylvania, 220 
327, 51 Atl. 887; Banner v. Cas- Pa. 328, 89 Atl. 861. 

satt, 236 Pa. 248, 84 Atl. 780. It 18. Western National Bank's 

is immaterial that the wall is Appeal, 102 Pa. 171; Mercantile 

on the adjoining land to the ex- Library Co. v. University of Penn- 

tent of less than one half its sylvania, 220 Pa. 328, 89 Atl. 861; 

thickness. Western National Heron v. Houston, 217 Pa. 1, IIS 

Bank's Appeal, 102 Pa. 171; Kos- Am. St. Rep. 898. 

ack v. Johnson, 38 App. D. C. 19. Deere, Wells & Co. v. Weir- 

62. Shugart Co., 91 Iowa, 422, 59 N. 

16. Pile V. Pedrick, 167 Pa. 296, W. 255 ; Pier v. Salot (Iowa) 107 
46 Am. St. Rep. 677, 31 Atl. 646. N. W. 420. 

17. Mercantile Library Co. .v 



§ 366] 



Easements. 



1313 



not to be such a user.-^ The erection of an inferior 
wall by the side of the other wall has also been de- 
cided not to involve a user of the latter.-^ 

§ 366. Estoppel. (a) By reference to non ex- 
istent way. If one, in conveying land, describes it as 
bounded on a street (or other highway) which is in 
fact nonexistent, he is, as against his grantee, it is said, 
estopped to deny the existence of such street, the 
result being that he in effect grants, in so far as he 
owns the land covered by the supposed street, a right of 
way along the route thereof for the purpose of access 
to the land conveyed,-^ and also easements of light and 
air such as the grantee would have had were the street 
actually existent.^^ Likewise if land conveved is de- 



20. Beggs V. Duling, 102 Iowa, 
13. 70 N. W. 732. As to what 
constitutes a new use of a new 
wall erected in place of an old 
one, so as to impose liability 
under the statute, see Hoffstott 
V. Voigt, 146 Pa. 632, 23 Atl. 351; 
German Nat. Bank v. Mellor, 238 
Pa. 415, 86 Atl. 415. 

21. Sheldon Bank v. Royce, 84 
Iowa, 288, 50 N. W. 986. 

22. Teasley v. Stanton, 136 
Ala. 641, 96 Am. St. Rep. 88, 33 
So. 823; Rogers v. Ballinger, 59 
Ark. 12, 26 S. W. 12; Petitpierre 
V. Maguire, 155 Cal. 242, 100 Pac. 
690; Billings v. Mckenzie, 87 
Conn. 617, 89 Atl. 344; Poole v. 
Greer, 6 Del. 220, 65 Atl. 767; 
Schreck v. Blum, 131 Ga. 489, 62 
S. E. 705; Young v. Braman, 105 
Me. 494, 75 Atl. 120; O'Linda v. 
Lathrop, 21 Pick. (Mass.) 292; 
Driscoll V. Smith, 184 Mass. 221, 
68 N. E. 210; Dawson v. St. Paul 
F. & M. Ins. Co., 15 Minn. 136, 2 



Am. Rep. 109; Plumer v. John- 
ston, 63 Mich. 65, 29 N. W. 687; 
Crosby v. Greenville, — Mich. — , 
150 N. W. 246; Moses v. St. Louis 
Sectional Dock Co., 84 Mo. 242; 
Lindsay v. Jones, 21 Nev. 72; 
White V. Tidewater Oil Co., 50 N. 
J. Eq. 1; Imperial Realty Co. v. 
West Jersey & S. . R. Co., 78 N. 
J. Eq. 110, 77 Atl. 1041; United 
N. J. Railway & Canal Co. v. Cru- 
cible Steel Co., 86 N. J. Eq. 258, 
98 Atl. 1087, affirming 85 N. J. 
Eq. 7, 95 Atl. 243; White's Bank 
V. Nichols, 64 N. Y. 65; Niagara 
Falls V. New York Cent. & H. R. 
R. Co., 168 N. Y. 610, 61 N. E. 
185; Weeks v. New York W. & B. 
Ry. Co., 207 N. Y. 190, 100 N. E. 
719; Ott V. Kreiter, 110 Pa. St. 
370, 1 Atl. 724; Shelter v. Welzel, 
242 Pa. 355, 89 Atl. 455; Gish v. 
Roanoke, 119 Va. 519, 89 S. E. 
970; Espley v. Wilkes, L. R. 7 
Exch. 298. 

23. Trowbridge v. Ehrich, 191 



1314 



Eeal Property. 



[§ 366 



scribed as bounded, not by a street or other highway, 
but by a j^rivate alley or passageway, the grantor is said 
to be estopped, as against the grantee, to deny that 
such an alley or passageway exists, that is, he grants to 
that extent a right of way appurtenant to the land 
conveyed.-^ And it has been decided that if the con- 
veyance bounds the land on a way which is actually 
laid out, the grantee acquires a right of passage for 
the whole length of such way, so far as it is upon the 
grantor's land, and not merely for the length of the 
boundary of the land conveyed.-^ 

While a reference to a non existing street or way 
as a boundary has thus ordinarily been regarded as 
involving the grant of a right of way, a different view 



N. Y. 361, 84 N. E. 297; Dill v. 
Board of Education of City of 
Camden, 47 N. J. Eq. 421, 10 L. 
R. A. 276, 20 Atl. 739; Fitzgerald 
V. Barbour, 55 Fed. 440, 5 C. C. 
A. 180. 

24. Garstang v. Davenport, 90 
Iowa, 359, 57 N. W. 876; Riley v. 
Stein, 50 Kan. 591, 32 Pac. 947; 
Reccus V. Weber, 142 Ky. 157, 134 
S. W. 145; Young v. Braman, 105 
Me. 494, 75 Atl. 120; Fox v. 
Union Sugar Refinery, 109 Mass. 
292; McKenzie v. Gleason, 184 
Mass. 452, 100 Am. St. Rep. 
566, 69 N. E. 1076; Gould v. 
Wagner, 196 Mass. 276, 82 N. 
E. 10; Flagg v. Phillips, 201 
Mass. 216, 87 N. B. 598; Carlin 
V. Paul, 11 Mo. 32, 47 Am. Dec. 
139; Cox V. James, 45 N. Y. 557; 
Hennessy v. Murdoch, 137 N. Y. 
317, 33 N. B. 330; Rhoads v. 
Walter, 61 Pa. Super. Ct. 43. But 
see Milliken v. Denny, 135 N. C. 
19, 47 S. E. 132. 
The fact that land is bounded 



by a privatQ passageway does 
not, it has been decided, give 
any rights of light and air as 
regards the space occupied by 
such way, except in so far as 
required for the purposes of pas- 
sage. Bitello V. Lipson, 80 Conn. 
497, 16 L. R. A. (N. S.) 193, 125 
Am. St. Rep. 126, 69 Atl. 21. And 
a description of the land con- 
veyed as bounded on an "open 
court" was held to give no ease- 
ments of light and air which 
would prevent the erection of a 
building on the court. Lipsky v. 
Heller, 199 Mass. 310, 85 N. B. 
453. 

25. Thomas v. Poole, 7 Gray. 
(Mass.) 83; Rodgers v. Parker, 
9 Gray (Mass.) 445; Ralph v. 
Clifford, 224 Mass. 58, 112 N. E. 
482; Tobey v. Taunton, 119 Mass. 
404; McConnell v. Rathbun, 46 
Mich. 303, 9 N. W. 426; Schreck 
v. Blun, 131 Ga. 489, 62 S. E. 
705. Compare Langmaid v. Hig- 
gins, 129 Mass. 353. 



§ 366] Easements. 1315 

has been adopted when the land was in terms bounded 
on the side line of the street or way,-*^ when the street 
or way was referred to merely for the purpose of loca- 
ting the starting point of the description, and the land 
was described by courses and distances, although one of 
the courses happened to correspond with the side line of 
such street or way,-' and when the land was bounded 
on a "continuation" of a supposed street.^*^ And gen- 
eralh^ the particular language used, or the circumstances 
of the case, may be referred to for the purpose of show- 
ing that there was no intention, in bounding the land 
on a non-existent street or way, to give any easement 
in the land retained.-^ 

One thus acquiring an easement by a grant to liim 
of land as bounded by a street which is nonexistent 
has the right to have the supposed street kept open 
to its full width, as indicated on a plat referred to or 
otherwise.^'' 

In so far as one who has conveyed land as bounded 
on a street or way which is in fact nonexistent is pre- 

26. McKenzie v. Gleason, 184 58 N. Y. Supp. 163; Neely v. 
Mass. 452, 100 Am. St. Rep. 566, Philadelphia, 212 Pa. 551, 61 Atl. 
69 N. E. 1076. 1096. 

27. Lankiu v. Terwilliger, 22 30. Fitzgerald v. Barbour, 55 
Ore. 97, 29 Pac. 268; Talbert v. Fed. 440, 5 C. C. A. 180; White 
Mason, 136 Iowa, 373, 113 N. W. v. Tidewater Oil Co., 50 N. J. 
918 {dictum); Pierpoint v. Har- Eq. 1, 25 Atl. 199; Livingston v. 
risville, 9 W. Va. 215 {semhle). New York, 8 Wend. (N. Y.) 85, 22 
And see Neely v. Philadelphia. Am. Dec. 622. 

212 Pa. 551, 61 Atl. 1096. That a conveyance of land 

28. Atwood V. O'Brien, 80 Me. bounds it on a non existent street 
447, 15 Atl. 44. But see Teasley does not impose any obligation 
V. Stanton, 136 Ala. 641, 96 Am. on the grantor to make a streei 
St. Rep. 88, 33 So. 823. or way accordingly, which will 

29. Pitts V. Baltimore, 73 Md. be fit for travel. Loring v. 
326, 21 Atl. 52; Bushman v. Gib- Otis, 7 Gray (Mass.) 563; Hen- 
son, 15 Neb. 676, 20 N. W. 106, nessey v. Old Colony & N. R. Co., 
289; Hopkinson v. McKnight, 31 101 Mass. 540, 100 Am. Dec. 127; 
N. J. Law 422; King v. New Durkin v. Cobleigh, 156 Mass. 108, 
York, 102 N. Y. 171. 6 N. E. 395; 17 L. R. A. 270, 32 Am. St. Rep. 
Re Brook Ave., 40 App. Div. 519. 436, 30 N. E. 474. 



1316 



Eeal Property. 



[§ 366 



chicled from denying the existence of an easement in 
favor of his grantee on the land retained by him, 
one to whom he subsequently conveys the latter land is 
also so precluded,^^ but not one claiming under title 
paramount, as for instance at a sale under a prior 
mortgage.^^ 

One can obviously not create an easement by de- 
scribing the land conveyed as bounded by a street or 
wa}', if he does not own the land on w^hicli the street or 
way is supposed to be located, that is, he cannot thus 
create a right of way over another's land.^^ And it has 
been decided that such a reference to a nonexistent 
street or way does not, merely because it cannot operate 
as creating a way, take effect as a covenant as to the 
existence of the street or way, for breach of which dam- 
ages may be claimed.^* The statement not infrequently 
found in the cases,^^^ that the reference to a street in- 
volves an ''implied covenant" on the part of the gran- 
tor that there is such a street, appears ordinarily to 



31. Fitzgerald v. Barbour, 55 
Fed. 440, 5 C. C. A. 180; Thomas 
V. Poole, 7 Gray (Mass.) 83; 
Rogers v. Ballinger, 59 Ark. 12, 
26 S. W. 12; Cox v. James, 45 
N. Y. 557; Sbetter v. Welzel, 242 
Pa. 355, 89 Atl. 455. Contra Briz- 
zalaro v. Senour, 82 Ky. 353. 

32. See Tuttle v. Sowadzki, 41 
Utah, 501, 126 Pac. 959. 

That a subsequent grantee ot 
part of the land, away from the 
asserted street, cannot assert the 
existence of the way, see Dawson 
V. S. Paul Fire & Marine Insur. 
Co., 15 Minn. 136, 2 Am. Rep. 
139. 

33. Dorman v. Bates Manuf'g 
Co., 82 Me. 438, 19 Atl. 915; Cole 
\. Hadley, 162 Mass. 579, 39 N. 
E. 279. 



34. Wimpey v. Smart, 137 Ga. 
325, 73 S. E. 586; Howe v. Alger, 
4 Allen (Mass.) 206; Fulmar v. 
Bates, 118 Tenn. 731, 10 L. R. A. 
(N. S.) 964, 121 Am. St. Rep. 1059, 
102 S. W. 900. Contra, Trutt v. 
Spott, 87 Pa., 339;. Talbert v. 
Mason, 136 Iowa. 373, 14 L. R. 
A. (N. S.) 878, 113 N. W. 918 
(semble). 

34a. See e. g. Rogers v. Bel- 
linger, 59 Ark. 12, 26 S. W. 12; 
Haynes v. Thomas, 7 Ind. 38. 
White V. Flannigan, 1 Md. 525, 
54 Am. Dec. 668; Tufts v. Charles- 
town, 2 Gray (Mass.) 272; Mosi?s 
V. St. Louis Sectional Dock Co., 
84 Mo. 242: Greenwood v. Wilton 
R. R., 23 N. H. 261; Bellinger v. 
Union Burial Ground Soc, 10 Pa. 
135. 



^ 366] Easements. 1317 

mean merely that he is precluded from denying the 
existence of the street. 

There are quite occasional decisions and dicta to 
the effect that if one conveys land as abutting on a 
legally existent highway, the fee of "hieh he owns, and 
the highway is subsequently discontinued, the grantee 
still has a right of passage where the highway previously 
existed, which cannot be obstructed by the grantor or 
one claiming under him.-'^ This view involves the as- 
sumption that the description in a conveyance of land 
as abutting on a highway has the effect of creating a 
private right of way, irrespective of whether the high- 
way does or does not exist. 

While the courts, as above stated, in deciding that 
the grantee of land may acquire an easement in the 
grantor's adjoining land by reason of the fact that the 
conveyance bounds the land on a nonexistent street or 
way, base this in terms on the ground of estoppel, they 
give practically no satisfaction as reg^ards the character 
and theoretical basis of the estoppel. If they regard 
it as a case of estoppel by deed, that is, if they mean 
that the grantor having, in a formal conveyance, referred 
to a street as existing on his land in a particular lo- 
cation, he is estopped to deny that it does so exist,"'" 
the fact that the grantee knows that the street does not 
exist would presumably be immaterial, as would the 
fact that the conveyance is by way of gift."'^ The courts, 

35. Bayard v. Hargrove, 45 Ga. County, 36 Utah, 127, 104 Pac. 

342; Leffler v. Burlington., 18 "Wlash. 691, 1^. R. A. 1917A, 1120, 

Iowa, 361. Parker v. Farminghani, 159 Pac. 891; Central Trust Co. 

1047; Dobson v. Hohenadel, v. Ifennen, 90 Fed. 593, 33 C. C. 

148 Pa. St. 367, 23 Atl. 1128. A. 189. Rut see Kimball v. Ken- 

Shetter v. Welzel, 242 Pa St. 355, osha, 4 Wis. 321. 
111. Van Buren v. Trumbull, 92 36. It is reforrei to as a case 

8 Mete. (Mass.) 260; Plumer v. of estoppel by deed in Billings v. 

Johnston, 63 Mich. 165, 29 N. W. McKenzie, 87 Conn. 617, 89 Atl. 

687; White's Bank v. Nichols, 64 344; Shetter v. Welzel, 242 Pa. 

N. Y. 65; Holloway v. Southmayd, 355, 89 Atl. 455; Bigelow, Estnp- 

139 N. Y. 390, 34 N. E. pel (6th Ed.) 403. 
89 Atl. 455; Sowadski v. Salt Lake 37. That the fact that the con- 



1318 Real Peopertt. [§ 366 

however, occasionally refer to the probability that the 
supposed existence of the street constituted part of 
the consideration which induced the purchase, and from 
this point of view the estoppel is not by deed, but is by 
representation, and the fact that the purchaser was 
aware of the facts and was consequently not misled, or 
that the conveyance was by way of gift, would pre- 
vent the estoppel taking eifect.-^^ 

If the grantee's acquisition of the easement is by 
reason merely of the fact that the conveyance purported 
to bound the land by a street, without reference to 
whether the grantee was induced to suppose that a 
street actually exists, the rule might as well be stated, 
it seems, without reference to the doctrine of estoppel. 
So considered, the rule appears to be merely one of 
construction, that a conveyance of land as bounding on 
a nonexistent street is presumed, if no such street 
exists, to be intended to vest in the grantee, as appurte- 
nant to such land, easements of passage and of light and 
air, similar to those which he would have acquired had 
the street actually existed.^^* If on the other hand the 
purchaser's acquisition of the easement is by reason of 
his having been induced to believe that a street exists, 
without reference to whether the grantor intended to 
create such an easement in his favor, the rule is, it 
seems, properly expressed in terms of estoppel, and the 
language of the conveyance in reference to the street 
would appear to be material only as raising a presump- 
tion that similar language was used by the vendor in the 
negotiations which preceded the conveyance. So far 
as estoppel by representation is concerned, the fact 

veyance is by way of gift is im- material in Kenyou v. Hookway, 

m.atenal see Flersheim v. City of 17 N. Y. Misc. 452, 41 N. Y. Supp. 

Baltimore, 85 Md. 489, 36 Atl. 230. A contrary view is taken iu 

1098. Bushman v. Gibson, 15 Neb. 676, 

38. That the grantor had pre- 20 N. W. 106, 289. 

viously told the grantee that he 38a. Post, this section, note 

did not intend to give him such 54a. 
an easement was regarded as im- 



§ 366] Easements. 1319 

that the conveyance bounds the land by a street is 
immaterial if the purchaser has been expressly told, or 
has reason to believe, that no such street exists. The 
same considerations apply in the case of a reference to 
a private passage way as a boundary. If the language 
of the instrument operates to create an easement in the 
grantee, irrespective of whether the grantee was induced 
to believe in the existence of the passage way, the 
easement is created by the lang-uage of the conveyance, 
and the introduction of the doctrine of estoppel is un- 
necessary, while if the instrument creates an easement 
in the grantee merely because it indieatos that the 
grantee was induced to purchased in the belief that the 
passage way existed, the easement is properly said to 
be created by estoppel. 

(b) By reference to plat. It is frequently 



stated that if one sells land, or conveys it, with refer- 
ence to a plat, on .which plat appear streets, squares, 
quays, or the like, the plat is in effect made a part of 
the transaction of sale or conveyance, with the result 
that the vendee or grantee acquires a right to insist 
that, in so far as the property belongs to the vendor 
or grantor, the parts designated on the plat as streets, 
squares, quays or the like, shall continue to be de- 
voted to such public use free from interference by tli(> 
grantor or one claiming under him.^^ The cases ordi- 

39. Danielson v. Sykes, 157 Cal 311, 37 N. E. 850; Fisher v. Beard, 
689, 109 Pac. 87, 28 L. R. A. 32 Iowa, 346; Cleaver v. Man- 
(N. S.) 1024; Pierce v. Roberts, hanke, 120 I-owa, 77, 94 N. W. 
57 Conn. 31, 17 Atl. 275; Fisk v. 279; Rowan's Excrs. v. Portland, 
Ley, 76 Conn. 295, 56 Atl. 559; 8 B. Mon. (47 Ky.) 232; Mem- 
East Atlanta Land Co. v. Mower, phis & St. L. Packet Co. v. Grey, 
138 Ga. 380, 75 S. E. 418; May- 9 Bush (72 Ky.) 13; Bartlett v. 
wood Co. V. Village of Maywood, City of Bangor, 67 Me. 460; Burn- 
118 111. 61, 6 N. E. 866; Swedish ham v. Mahoney, 222 Mass. 524, 
Evangelist Lutheran Church v. Ill N. E. 396. Ilorton v. Williams, 
Jackson, 229 111. 506, 82 N. E. 99 Mich. 423; Lennig v. Ocean City 
348; Field v. Barling, 149 111. 556, Ass'n 41 N. J. Eq. 606. 56 Am. 
24 L. R. A. 406, 41 Am. St. Rep. Rep. 16, 7 All. 491; Dill v. Board 



1320 Keal Pkoperty. [§ 366 

narily refer to this as arising from a sale according to a 
plat rather than from a conveyance according to a plat, 
but when the sale is according to a plat the conveyance 
by which the sale is consummated is usually according 
to the same plat, and it may be questioned whether, when 
the courts refer to a sale according to a plat, they do 
not usually have in mind such a sale followed by a simi- 
lar conveyance. As is subsequently indicated,^° whether 
a sale according to a plat, that is, a reference to a plat 
in connection with the negotiations for a sale, will have 
the same effect in this regard as such a reference in- 
corporated in the instrument of conveyance of the land, 
has been questioned. 

In some cases,"* ^ in giving this effect to a conveyance 
according to a plat, language is used by the court indi- 
cative of the view that this result is attained by an ap- 
plication of the same principle which operates to pre- 
clude one who conveys land as bounded on a street or 
way from denying the existence of the street or way, and 
that the cases are exceedingly analogous appears not to 
be open to question. In some cases the view is asserted 
that the reference to the plat operates to vest an ease- 
ment in the grantee as inducing him to believe that the 
streets or other public places exist as indicated on the 
plat,^2 thus in etfect applying the doctrine of estoppel 

of Education of City of Camden, (bridge). Wilson v. Acree, 97 

47 N. J. Eq. 421, 10 L. R. A. 276, Tenn. 378, 37 S. W. 90; Tuttle 

20 Atl. 739. Bissell v. Railroad v. Sowadzki, 41 Utah, 501, 126 

Co., 23 N. Y. 61; Hennessy v. Pac. 959. 

Mnrdock, 137 N. Y. 317, 40. /Vs/, § 366(c), note 54. 

33 N. E. 330; Buffalo L. 41. See Booraem v. North Hud- 

& R. Co., V. Hoyer, 214 N. Y. son R. Co., 40 X J. Eq. 557, 5 

236, 108 N. E. 455; Chapin v. Atl. 106. Dodge v. Pennsylvania 

Brown, 15 R. I. 579, 10 Atl. 639; R. Co., 43 N. J. Eq. 351, 45 N. J. 

Chambersburg Shoe Mfg. Co. v. Eq. 366; Wyman v. New York, 11 

Cumberland Valley R. Co., 240 Pa. Wend. (N. Y.) 486; Bissell v. 

519, 87 Atl. 968; Oney v. West N. Y. Cent. R. Co., 23 N. Y. 61; 

Buena Vista Land Co., 104 Va. McCall v. Davis, 15 R. I. 579. 

580, 2 L. R. A. (N. S.) 832. 113 42. Presoott v. Edwards, 117 

Am. St. Rep. 1066, 52 S. E. 343 Cal 298, 59 Am. St. Rep. 186; May- 



§ 366] Easements. 1321 

by representation. Frequently the courts refer in this 
connection to the fact that, as appears to be agreed in 
this country,^^ a sale of lots with reference to a plat 
involves a dedication to public use by the vendor of 
those parts indicated on the plat as intended to be so 
used,'** apparently regarding this as the basis for recog- 
nizing a right of way in the vendee. But this, it is con- 
ceived, involves a misapplication of the doctrine of 
dedication. The existence of a right of way in the 
vendee by reason of a sale to him by reference to a plat 
is entirely independent of whether any right exists in 
the public.*^ For instance, although the public authori- 
ties refuse to accept the dedication, or vacate a street 
appearing on a plat, so that the dedication of the street 
is practically a nullity, nevertheless the vendee's rights 
remain the same as if the authorities had not taken such 
action. That the right of the A^endee or grantee in 
such case is not dependent on the doctrine of dedication 
is apparent upon consideration of the analogous case of 
a private right of way appearing on the plat with ref- 
erence to which the sale or conveyance is made. The 
doctrine of dedication is absolutely inapplicable in 
connection with a private way, and yet the vendee or 

wood Co. V. Village of May wood, 110 Mo. 618, 19 S. W. 735; Hawley 

118 111. 61, 186, 49 Pac. 178; Clark v. Baltimore, 33 Md. 270; Carter 

V. Elizabeth, 40 N. .J. L. 172; Mc- v. Portland, 4 Ore. 339; Dobson v. 

Farland v. Linderkugel, 107 Wis. Hohenaiel, 148 Pa. 367, 23 Atl. 

474, 83 i\. W. 757. McCall v. Davis, 1128. 

15 R. I. 579; Van Buren v. Trum- 45. See Prescott v. PJd wards, 

bull, 92 Wash. 691, L. R. A. 1917 A, 117 Cal. 298, 59 Am. St. Rep. 186; 

1120, 159 Pac. 891. 49 Pac. 178; Danielson v. Sykes, 

43. Post, § 482. 157 Cal. 686, 109 Pac. 87, 28 L. 

44. Highland Realty Co. v. R- A. (N. S.) 1024; Overland 
Avondale Land Co., 174 Ala. 325, Machinery Co. v. Alpenfels, 30 
56 So. 716; Harrison v. Augusta, Colo. 163, 69 Pac. 574; White v. 
Factory, 73 Ga. 447; I^gansport Tidewater Can.il Co., 50 N. J. Eq. 
V. Dunn, 8 Ind. 38; Schneider v. 1, 25 Atl. 199; Lennig v. Ocean 
Jacob, 86 Ky. 101, 5 S. W. 350; City Ass'n, 41 N. J. Eq. 606, .'it; 
Morton v. Williams, 99 Mich. 423, Am. Rep. 16, 7 Atl. 491; Carroll 
58 N. W. 369. Heitz v. St. Louis, v. Asbury, 28 Pa. Super. Ct. 354; 



1322 



Eeal Peoperty. 



[§ 36G 



grantee in such case ordinarily acquires a right of 
way.^^ 

The authorities are not entirely harmonious as to 
whether one receiving a conveyance of land described 
with reference to a plat acquires a right of way over, 
or rather, corresponding to, every street which, though 
nonexistent, appears upon the plat. Some cases are 
to the effect that, while the grantee is not restricted to 
such supposed streets as are actually adjacent to his 
land, he acquires rights only in such as are reasonably 
necessary for convenient access to and exit from the 
land conveyed, and that the grantor is not, as against 
him, estopped to deny the actual existence of streets ap- 
pearing on the plat which he would not ordinarily have 
occasion to use for such purpose,'*'^ while some recognize 
rights in the grantee along the routes of all the streets 
designated on the plat.^^ Tn one or two states the rights 



Wolf V. Brass, 72 Tex. 133, 12 S. 
W. 159. 

46. Smith v. Young, 160 111. 
1C3, 43 N. E. 486; Marshall v. 
Lynch, 256 111. 522, 100 N. E. 289; 
Kaatz V. Curtis, 215 Mass. 311, 
102 X. E. 424; Lowenberg v. 
Brown, 79 N. Y. App. Div. 414, 
79 N. Y. Supp. lOGO (semble). 

47. Pearson v. .Allen 151 
Mass. 79, 21 Am. St. Rep. 426, 23 
N. E. 731; DoAvney v. Hood, 203 
Mass. 4, 89 N. E. 24; Bell v. 
Todd, 51 Mich. 21, 16 N. W. 304; 
State V. Hamilton, 109 Tenn. 276, 
70 S. W. 619. 

Occasionally the view has been 
taken that while the grantee may 
have a legal right as to all 
strips designated as streets on 
the plat, he has a right to an 
injunction only as to those 
which are more or less neces- 
sary for his purposes. Daniel- 



son V. Sykes, 157 Cal. 686, 28 L. 
R. A. (N. S.) 1024, 109 Pac. 87; 
Thorpe v. Clanton, 9 Ariz. 351, 
85 Pac. 1061; Chapin v. Brown, 
15 R. I. 579, 10 Atl. 639. 

48. Price v. Stratton, 45 Fla. 
535, 33 So. 644 (semble) ; Indian- 
apolis V. Kingsbury, 101 Ind. 200. 
51 Am. Rep. 749; Nagel v. Dean, 
94 Minn. 25, 101 N. W. 954 (sem- 
ble) ; Rowan v. Portland, 8 B. 
Mon. 232; Bartlett v. Bangor, 67 
Me. 460; Collins v. Land Co., 128 
N. C. 563, 83 Am. St. Rep. 720, 
39 S..E. 21; Jessop v. Kittaning 
Borough, 225 Pa. 583, 74 Atl. 553; 
Thaxter v. Turner, 17 R. I. 799, 
24 Atl. 829; Sipe v. Alley, 117 
Va. 819, 86 S. E. 122; Cook v. 
Totten, 49 W. Va. 177, 87 Am. St. 
Rep. 792, 38 S. E. 491; Edwards 
V. Moundsville Land Co., 56 W. 
Va. 43, 48 S. E. 754. 



§ 366] Easements. 1323 

of the grantee are said to be limited to the street on 
which his land purports to abut, so far as is necessary 
in order to reach a cross street in either direction.^'' 

In so far as the vendee thus acquires an easement in 
the strips designated as streets on the plat he has, it ap- 
pears, the right to have them kept open to the full width 
indicated on the plat.^^ 

It has occasionally been stated that, when land is 
sold or conveyed according to a plat, the grantee ac- 
quires the right, not only to use the " streets appearing 
on the plat, but also the right to have the public use 
them,^^ the theory being that, having purchased with 
this expectation, he should not be disappointed therein. 
Such a ^'iew is not entirely satisfactory. Assuming that 
there is a dedication by the sale or conveyance, the 
public obviously acquires a right to use the streets, or 
strips designated as streets, because in that case they 
are streets. But this is a riglit in the public, not in the 
individual grantee, and the conception of an easement, 
appurtenant to land, to have the members of the public 
use the property in the neighborhood along certain de- 
signated routes, not for the purpose of access to such 
land, but for tlieir own individual x^urposes, is a dif- 
ficult one. Such an easement in one's favor would 
mean, it seems, that though all those desiring to go 
to or from his land, including himself, were allowed to 
use these designated streets, he could maintain an 
action because other persons were not allowed to do so. 
Even when the streets are actually existent, it does not 
seem that an abutting owner on one street could com- 
l)lain because tlie public generally are not allowed to 

49. Reis v. City of New York, 8 Wend. (N. Y.) 85, 22 Am. Dec. 
188 N. Y. .58, 80 N. E. 573; Haw- 622. 

ley V. Baltimore, 33 Md. 270. 51. Highland Realty Co. v. 

50. Molitor v. Sheldon, 37 Kan. Avondale Land Co., 174 Ala. 32<), 
246, 15 Pac. 231; White v. Tide- 56 So. 716; Earll v. City of Chi- 
water Oil Co., 50 N. J. Eq. 1, 25 cago, 136 111. 277, 26 N. E. 370; 
All. 199; Livingston v. New York. xllden Coal Co. v. Chulli.s, 200 111. 



1324 Eeal Peopeety. [§ 366 

use other streets in the neighborhood, this being for 
the individual members of the public, or the muncipal 
authorities, to do, and his rights can not well be greater 
when the streets are nonexistent. 

The failure of the decisions clearly to explain the 
true nature of the estoppel operating to give to the 
grantee of land an easement corresponding to a street 
or way, which though actually nonexistent, is referred 
to as a boundary, or of that operating to give to him an 
easement corresponding to a street or other public place 
appearing on a plat referred to in the conveyance, as 
well as the difficulties involved in the question whether 
a sale according to a plat, as distinct from a conveyance 
according to a plat, operates to preclude the grantor 
from denying the existence of the easement, appear to 
emphasize the desirability of treating the matter, for 
the most part at least, as one of the construction of the 
instrument of conversance rather than as one of estoppel. 
The question then in each case becomes one of the 
meaning of the language used as regards the property 
conveyed, whether, that is, it means tlie land alone, or 
the land with an easement annexed thereto? While a 
conveyance of land as bounded on a street or way is 
ordinarily presumed, in case the street or way is non- 
existent, to mean the land with a private easement 
annexed thereto, this presumption has no operation in 
case a different intention apj^ears from the particular 
language used.^- And it would seem, as evidence is 
always admissible to aid in the construction of an in- 
strument, this presumption may be rebutted by refer- 
ence to the surrounding circumstances at the time of 
the transaction. So the fact that the grantee knew that 

222, 65 N. E. 665; Rowan v. Port- v. Grenet. 22 Tex. 94; City of 

land, 8 B. Mon. (Ky.) 232; Heitz Corsicana v. Zorn, 97 Tex. 317. 

V. City of St. Louis, 110 Mo. 618, 78 S. W. 924; Lins v. Seefeld, 126 

19 S. W. 735; Quicksall v. Phila- Wis. 610, 611, 105 N. W. 917. 
uelphia, 177 Pa. 301; Clark v. 52. Ante, this section, note 38a. 

Providence, 10 R. I. 437; Oswald 



<§. 366] Easements. 1325 

no street or way existed would be a mate.rial considera- 
tion, not only as showing that he was not misled by the 
reference to the street or way, but also as showing that 
the reference to the street or way was not to be con- 
sidered for the purpose of ascertaining whether an 
easement passed by the conveyance. So a conveyance 
of land by reference to a plat on which streets and 
squares or the like appear, is presumed, in case the 
streets or squares do not actually exist, to mean the 
land with corresponding private easements annexed 
thereto, but presumably evidence that the words used 
meant the land without any easements appurtenant 
thereto would be admissible. In case the conveyance 
makes no reference to any street or way, or to a plat, 
but the grantor, previous to making the conveyance, 
states to the gTantee that there is a street or way, 
such statement may be referred to for the purpose of 
determining whether the language of the conveyance 
meant the land with an easement appurtenant thereto 
of the character referred to, or the land without such an 
easement. And the same may be said as regards the 
exhibition by the vendor of a plat on which streets or 
squares appear, which plat is not referred to in the 
conveyance. Such act on his part is, it is conceived, 
to be considered because it serves to explain the meaning 
of the language used in the conveyance as applying, not 
to the land alone, but to the land with easements appur- 
tenant thereto corresponding to the public easements 
depicted on the plat. Just as in the case of what is 
ordinarily referred to as the implied grant of an ease- 
ment, the basic principle is that a conveyance of land 
in general terras may be shown, by reference to ex- 
trinsic facts, to be intended as a conveyance of land 
with an easement annexed, so in this case a conveyance 
of land may be shown, by reference to an extrinsic fact, 
to be intended as a conveyance of land witli an oasomont 
or easements annexed. The application of tlie doctrine 
of estoppel might well be confined to those cases fn 

2 R. p.— 9 



1326 



Real Property. 



[^ 366 



which there is an actual misrepresentation by the ven- 
dor, on which the purchaser relies, as indicated in the 
following subsection. 

(c) By representation or acquiescence. If, in 



order to effect a sale of land, the intending vendor 
states that there is a street or way adjacent to or near 
the land, or an easement appurtenant thereto, and on 
the faith of such statement the purchase is made, the 
vendor is ordinarily estopped to deny the existence of 
the way, street or other easement,^^ and the same effect 
has occasionally been given to the exhibition by the ven- 
dor to the vendee, before the sale, of a plat showing a 
particular street or way as existing in connection with 
the property.^^ 

The doctrine of estoppel by representation, by means 
of conduct of a particular character, has occasionally 



53. Prescott v. Edwards, 117 
Cal. 304, 59 Am. St. Rep. 156, 49 
Pac. 178; Kirkpatrick v. Brown, 
59 Ga. 450; Mattes v. Frankel, 
157 N. Y. 603, 52 N. E. 585, 68 
Am. St. Rep. 804; Cleaver v. 
Manhanke, 120 Iowa, 77, 94 N. W. 
279; Kixmiller v. Bait. & 0. S, 
W. R. Co., 60 Ind. App. 686, 111 
N. E. 401. 

So it was held that purchaser 
ot lots to whom the vendor had 
stated that there were appurte- 
nant thereto rights as to sewers 
and a water system could not 
be deprived by the vendor of the 
right to make use of such sewer 
and water systems as existed. 
Biggs V. Sea Gate Ass'n, 211 N. 
Y. 482, 105 N. E. 664. 

The purchase must obviously be 
made in reliance on the state- 
ment by the vendor in order that 
the latter be estopped. Poronto 



V. Sinnott, 89 Vt. 479, 95 Atl. 647. 

54. Ford v. Harris, 95 Ga. 97, 
22 S. E. 144; Cihak v. Klekr, 117 
111. 643, 7 N. E. Ill; Dubuque 
V. Maloney, 9 Iowa, 450, 74 Am. 
Dec. 358; Babcock v. Heenan, 193 
Mich. 229, 159 N. W. 494; In re 
Edgewater Road, 13 N. Y. App. 
Div. 203, affirmed 199 N. Y. 560; 
In re Sedgwick Ave., 162 N. Y. 
App. Div. 236, 147 N. Y. Supp. 
661. 

In Pyper v. Whitman, 32 R. I. 
510, 80 Atl. 6, such an effect was 
denied to the exhibition of a plat, 
apparently on the theory that 
it would involve a violation of 
the "parol evidence" rule. In 
Dawson v. St. Paul Fire & Ma- 
rine Ins. Co., 15 Minn. 36, 2 Am. 
Rep. 139, it was questioned 
whether the exhibition of a plat 
should have this effect. 

54d. Ante, § 339(h). 



§ 366] Easements. 1327 

been applied or asserted for the purpose of establisliing 
an easement when the one clai'ming the easement has 
made improvements, or otherwise adopted a particuhir 
course of action on the assumption that a changed con- 
dition already existing in connection with a stream or 
body of water would be allowed to continue, with the 
result that the o^vner of the land on which such con- 
dition existed was precluded from changing back to the 
original condition,^"'^*^ and one might be estopped to 
deny the existence of an easement by his conduct in 
inducing another to make improvements for the purpose 
of utilizing the supposed easement.^^^ 

In case there is an attempted oral grant of an 
easement, and the intended grantee makes improve- 
ments for the purpose of exercising the easement, equity 
will recognize and enforce the easement on the theory of 
what is ordinarily referred to as that of part perfor- 
mance^*^ but which is essentially the theory of estoppel. 

54e. See MiUer & Lux v. En- v. Lewis, 13 Conn. 303, 33 Am. 

terprise Canal & Land Co., 169 Dec. 405; Penn American Plate 

Cal. 415, 147 Pac. 567; Morris Glass Co. v. Schwinn, 177 Ind. 

Canal & Banking Co. v. Diamond 645, 98 N. E. 715; Townsend v. 

Mills Paper Co., 71 N. J. Eq. 481, Epstein, 93 Md. 537, 52 L. R. A. 

64 Atl. 746, 73 N. J. Eq. 414, 75 409, 86 Am. St. Rep. 441, 49 Atl. 

All. 1101; Smith v. Row- 629; Morrill v. St. Anthony Falls 

land, 243 Pa. 306, 90 Atl. 183. See Water Power Co., 26 Minn. 222, 

cases cited, note to L. R. A. (N. 37 Am. Rep. 399, 2 N. W. 842; 

S.) 1916C, at p. 940 et seq. Laird v. Atlantic Coast Sanitary 

Ordinarily, however, one's mere Co., 73 N. J. Eq. 49, 67 Atl. 387; 
acquiescence in the making of New York Rubber Co. v. Rothery, 
improvements by another for the 107 N. Y. 310, 1 Am. St. Rep. 
purpose of making a use of the 822, 14 N. E. 269; Lavery v. 
latter's land which involves a vio- Arnold, 36 Ore. 84, 57 Pac. 908, 
lation of a»iiatural right appertain- 58 Pac. 524; Silver Spring Bleach- 
ing to the former's land involves no ing & Dyeing Co. v. Wanskuck, 
estoppel to deny the existence of 13 R. I. 611. 

an easement in diminution of such 54f. Ante, § 349(r]), notes 44- 

catural right. See Lux v. Haggin, 49. 
69 Cal. 255, 10 Pac. 674; Johnson 



1328 Kb-\l Property. [§ 367 



III. Eights of Usee. 

§ 367. Easements created by grant. The mode io 
which an easement may be exercised, that is, the charac- 
ter and extent of the rights and privileges involved 
therein, is, in the case of an easement created by grant, 
determined by construction of the langniage of the 
grant.^^ So it is a question of construction whether the 
easement is restricted by the use made of the dominant 
tenement at the time of the grant, or whether the burden 
of the easement may be increased with any increase or 
change in the use of the dominant tenement.^^ 

Since the language used in the grant of an ease- 
ment is ordinarily of a general character, containing 
no mention of specific rights and pri\ileges, the proc- 
ess of construction involves not only the ascertainment 
of the actual intention from the language used, but 
also the establishment of a presumed, a fictitious, inten- 
tion, in regard to matters as to which, so far as appears, 
there was no actual intention,'^' and for this purpose the 
courts have established certain rules of construction to 
be applied in connection with such a grant. Frequently 
these rules are stated as positive rules of law and not 
of construction, but they are, in their last analysis, 
merely rules of construction, since they are controlled 
by any expression of intention in the grant. For in- 
stance, when it is said that the owner of the dominant 
tenement may make such changes on the servient tene- 
ment as are necessary for the proper exercise of the 

55. Whitehead v. Parks, 2 271; Kinney v. Hooker, 65 Vt. 

Hurl. &X. 370; Williams v. James, .333. 36 Am. St. Rep. 864, 26 Atl. 

L. R. 2 C. P., 577; Field v. Leiter, 690; Stephen Putney Shoe Co. v. 

118 111. 17, 6 N. E. 877; Moore v. Richmond F. & P. R. Co., 116 

Fletcher, 16 Me. 63, 33 Am. Dec. Va. 211, 81 S. E. 93. 

633; French v. Marstin, 24 N. H. 56. PoRt, § 369. 

440, 57 Am. Dec. 294; Abbott v. 57. See Salmoiul, Jurispru- 

Butler, 59 N. H. 317; Wells v. dence (4th Bd.) 141, note. 
Tolman, 156 N. Y. 636, 51 N. E. 



^, 367] Easements. 1329 

easement,^^ this properly means that the grant of an 
easement is lorima facie to be construed as intended to 
confer such a privilege. This practice of stating a rule 
of construction in the form of a rule of law is of such 
obvious convenience in this connection that it will be 
adopted to some extent in the following pages, in spite 
of the technical inaccuracy involved therein. 

As in the case of other written instruments, the 
circumstances under which the grant was made are to 
be considered as aids in its construction.^^ In case of 
doubt the grant of an easement is construed, as are 
conveyances generally, in favor of the grantee rather 
than the grantor.*^^ While a reservation of an ease- 
ment is, it seems, to be construed in favor of the 
grantee of the land.*'^ 

The mode in which the grantee of the easement, 
wtih the grantor's acquiescence, exercised the easement 
after its acquisition, that is, the practical construction 
of the grant by the parties, may be referred to in order 
to aid in ascertaining its meaning,^^ }q^\^ \\^q f^^^ n^^X 

58. Post § 370. 235 Pa. 5, 83 Atl. 592; Smith v. 

59. Wood V. Saunders, 44 Law Duncan, 35 Utah, 203, 99 Pac. 
J. Ch. 514; Currier v Howes, 103 673. 

Cal. 431, 37 Pac. 521; Peck v. 60. Sweeney v. Landers, Frary 

Mackowsky, 85 Conn. 190, 82 Atl. & Clark, 80 Conn. 575, 69 Atl. 566; 

199; Baker v. Frick, 45 Md. 337, Frisbie v. Bigham Masonic Lod?e 

24 Am. Rep. 506; Mendell v. De- No. 256, 133 Ky. 588, 118 S. W. 

lane, 7 Mete, (ilass.) 176; Row- 359; Atkins v. Bordman, 2 Mete. 

ell V. Doggett, 143 Mass. 483, 10 (Mass.) 457; Duross v. Singer, 

N. E. 182; McConnell v. Rathbun, 224 Pa. 573, 73 Atl. 951; First 

46 Mich. 303, 9 N. W. 426; White Baptist Soc. v. Wetherall, 34 R. 

V. Eagle & Phen.ix Hotel Co., 68 L 155, 82 Atl. 1061; Stephen Put- 

N. H. 38, 34 Atl. 672; Cheswell ney Shoe Co. v. Richmond F. & 

V. Chapman, 38 N. H. 14, 75 Am. p. R. Co., 116 Va. 211, 81 S. E. 

Dec. 158; Cooper v. Louanstein, 93. 

37 N. J. Eq. 284; Herman •/. 61. Mitchell v. Reid, 192 N. Y. 

Roberts, 119 N. Y. 37, 7 L. R. \. 255, 85 N. E. 65; Redemptorists 

226, 16 Am. St. Rep. 800, 23 N. v. Wenig, 79 Md. 348, 29 Atl. 667. 

E. 442; Hotchkiss v. Young, 42 See Reese Hiowell Oo. v. Brown, 

Ore. 446, 71 Pac. 324; Mercantilo 48 Utah, 142, 158 Pac. 684. 
Library Co. v. Fidelity Trust Co., 



1330 



Real Property. 



[§ 367 



the grantee inade for a considerable time a more limited 
use of the land than that justified by the grant cannot 
affect the construction of a grant which is in terms 
unambiguous.*'^ 

It has been said in one state that the owner of an 
easement in the land of another need not use it in the 
particular manner prescribed by the instrument which 
creates it, and may use it in a different manner, pro- 
vided he does not increase the servitude or change it to 
the injury of the servient tenement.^^ The exact mean- 
ing of this statement does not clearly appear. It can 
hardly mean that one having an easement of a certain 
character can substitute an easement of a different 
character, provided this does not operate to the preju- 
dice of the servient tenement.^^ The statement was 
made on the authority of decisions that in the case of 
an easement to flow land or to have water pass to one's 



62. Fox V. Millar, 150 Fed. 
320; Winslow v. City of Vallejo, 
148 Cal. 723, 5 L. R. A. (N. S.) 
851, 113 Am. St. Rep. 349, 84 Pac. 
191; Drummond v. Foster, 107 
Me. 401, 78 Atl. 470; Blais v. 
Clare, 207 Mass. 67, 92 N. E. 1009; 
Onthank v. Lake Shore & M. S. 
R. Co., 71 N. Y. 194; Bernero v. 
McFarland Real Estate Co., 134 
Mo. App. 290, 114 S. W. 531; Mer- 
cantile Library Co. v. Fidelity 
Trust Co., 235 Pa. 5, 83 Atl. 592; 
Cram v. Chase, 35 R. I. 98, 43 
L. R. A. N. S. 824, 85 Atl. 642; 
Sked V Pennington. Spring Water 
Co., 72 N. J. 599, 65 Atl. 713. 

So when one having an ease- 
ment of light availed himself of 
such easement by maintaining 
windows in a wall for many 
years, this was regarded as lix- 
ing the character and extent of 



the easement. Kesseler v. Bow- 
ditch, 223 Mass. 265, 111 N. E. 
887. 

63. Bowers v. Myers, 237 Pa. 
533, 85 Atl. 860; Hammond v. 
Hammond, 250 Pa. 51, 101 Atl. 
855. This, even though the per- 
son having the easement con- 
sented to an erection which pre- 
vented it full exercise. Cotting 
V. Murray, 209 Mass. 133, 95 N. 
E. 212. 

64. Tallon v. City of Hoboken, 
60 N. J. L. 212, 37 Atl. 895, it 
being there decided that if one 
dedicating land for a street re- 
served the right to lay tracks 
for horse cars and steam cars 
he could lay tracks and string 
wires for electric cars. 

65. See United States Pipe Line 
Co. V. Delaware, etc., R. Co., 62 
N. J. L. 254. 42 L. R. A. 572. 



§ 367] 



Easements. 



1331 



land, the use to which the water is put is immaterial.^® 
These decisions do not appear to support the statement. 
If the owTier of an easement enters on the servient 
tenement for a purpose not included in the rightful 
exercise of the easement, he is liable as a trespasser to 
the same extent as if he had no easement."^ 

Rights of way. A right of way appurtenant to 



a particular tenement, as being intended for the pur- 
pose of access to and egress from such tenement, can- 
not be utilized by the owner of such tenement for the 
purpose of reaching other land.^^ He may, however, 
after going to the dominant tenement by the right of 
way, pass to a place beyond, if he did not have this in 
mind when going to the dominant tenement, the ques- 
tion being of his bona fides in making use of the way.''^ 



66. Luttrell's Case, 4 Co. Rep. 
S7; Sanders v. Norman, 1 B. & 
Aid. 258; Johnston v. Hyde, 33 
N. J. Eq. 632; Angell, Water- 
courses, §§ 228-230. 

67. Kaler v. Beaman, 49 Me. 
£07; Appleton v. FuUerton, 1 
Gray (Mass.) 186; Ganley v. 
Looney, 14 Allen (Mass.) 40; El- 
liott V. Rhett, 5 Rich. (S. C.) 405, 
57 Am. Dec. 750. 

68. Howell V. King, 1 Mod. 
190; Colchester v. Roberts, 4 
Mees. & W. 769; West v. Louis- 
ville & N. R. Co., 137 Ala. 568, 
r.4 So. 852; Anderson v. Sweeney, 
82 Conn. 694, 75 Atl. 76; Good- 
willie Co. V. Commonwealth Elec- 
tric Co., 241 111. 42, 89 N. E. 272; 
Hoosier Stone Co. v. Malott, 130 
Ind. 21, 29 N. E. 412; Louisville, 
N. A. & C. Ry. Co. V. Malott, 135 
Ind. 113, 34 N. E. 709; Albert v. 
Thomas, 73 Md. 1, 20 Atl. 912; 
Davenport v. Lamson, 21 Pick. 
Ulass.) 72; Greene v. Canny, 137 



Mass. 64; Randall v. Grant, 210 
Mass. 302, 96 N. E. 672; French 
V. Marstin, 32 N. H. 316; Diocese 
of Trenton v. Toman, 74 N. J. 
Eq. 702, 70 Atl. 606; Hales v. 
Atlantic Coast Line R. Co., 172 
N. C. 104, 90 S. E. 11; Shroder 
V. Brenneman, 23 Pa. St. 348; 
Springer v. Mclntyre, 9 W. Va. 
196; Reise v. Enos, 76 Wis. 634, 
8 L. R. A. 617, 45 N. W. 414. 

So it was held that one could 
not bring materials to the dom- 
inant tenement by a right of way 
appertaining thereto, and after 
leaving them there a short time, 
carry them to a point beyond, 
to be used in the construction 
of buildings. Skull v. Glenister. 
16 C. B. (N. S.) 81. 

69. Williams v. James, L. R. 
2 C. P. 577; French v. Marstin, 
32 N. H. 316. The use of a right 
of way for access to a highway 
stands on a different basis, and 
the owner of the dominant tene- 



1332 



Eeal Peoperty. 



[§ 367 



A right of way may be general, as capable of 
use for all purposes, or may be limited to use by foot 
passengers only, or horses only, or particular species 
of vehicles, or for the transportation of certain classes 
of articles.'^^ So one may have a right of way for 
carriages, without the right of driving cattle along the 
way, or of using it for the transportation of farm 
products ;'^^ or he may have a w^ay for agricultural 
purposes, without any right to transport other classes 
of articles, such as coal taken from the dominant tene- 
ment.'^- 

A grant in general terms will ordinarily be con- 
strued as creating a general right of way cai>able of 
use for all reasonable purposes,'^ but the circum- 
stances may demand a different construction,^^ as for 
instance when the physical condition of the servient 
tenement is such that a general user of the way would 
involve an injury to such tenement,'^ and the named 



ment may go therefrom to the 
highway, though he intends there- 
after to go from the highway 
to a point beyond, since this is 
the obvious purpose of a right of 
way to a highway. Colchsster v. 
Roberts, 4 Mees. & W. 769. 

70. As a privilege of trans- 
porting wood (Myers v. Dunn, 49 
Conn. 71), stone (Hoosier Stone 
Co. V. Malott, 130 Ind. 21, 29 N. 
E. 412; Shoemaker v. Cedar 
Rapids, I. F. & N. W. R. Co., 45 
Minn. 366, 48 N. W. 191), or coal 
(Webber v. Vogel, 159 Pa. 235, 28 
Atl. 226). 

71. Ballard v. Dyson, 1 Taunt. 
2'i9; Herman v. Boberts, 119 N. 
Y. 37, 16 Am. St. Rep. 800; Perry 
V. Snow, 165 Mass. 23; Myers v. 
Dunn, 49 Conn. 71. 

72. Cowling v. Higginson, 4 
Mees. & W. 245. 



That an automobile was a car- 
riage within a grant of a right 
of way for carriages, see Diocese 
of Trenton v. Toman, 74 N. J. 
Eq. 702, 70 Atl. 606. 

73. Thomas Cusack Co. v. 
Mann, 160 111. App. 649; Frost 
V. Jacobs, 204 Mass. 1, 90 N. E. 
357; Randall v. Grant, 210 Mass. 
302, 96 N. E. 672; Abbott v. But- 
jer, 59 N. H. 317; Shreve v. Math- 
is, 63 N. J. Eq. 170, 52 Atl. 234; 
Arnold v. Fee, 148 N. Y. 214, 238, 
42 N. E. 588; Bowers v. Myers, 
237 Pa. 533, 85 Atl. 860; Central 
Christian Chui-ch v. Lennon, 59 
Wash. 425, 109 Pac. 1027; United 
Land Co. v. Great Eastern Ry. 
Co., 10 Ch. App. 586. 

74. See Cannon v. Villars, 8 
Ch. Div. 420. 

75. Rov/ell v. Daggett, 143 
Mass. 483, 10 N. E. 182. 



^ 367] 



Easements. 



133: 



width of the way may be such as to render it apparent 
that a foot way only is intended."^^ 

A right of way may, by the terms of the grant, be 
limited to certain seasons" or persons,^ « or even to a 
particular time of day.'^ It may also be subject to 
interruption by reason of a particular use that may 
be made by the owner of the servient tenement.^'^ 

In the absence of express restrictions in that re- 
gard in the grant, it seems that all persons who can be 
regarded as having peraiission, express or implied, to 
enter on the dominant tenement, may use a way for 
the purpose of access to such tenement and of egress 
therefrom.^^ Consequently members of the family of 
the dominant owner,^^ i^[^ servants and employees,^=^ 
his guests,^^ and tradesmen and other persons with 
whom he does business,^^ may do so. Such persons are 



76. Perry v. Snow, 165 Mass. 
13, 42 N. E. 117. 

77. Wells V. Tolman, 156 N. 
Y. 636, 51 N. E. 392. 

78. Hollins v. Verney, 13 Q. 
B. D. 304. 

79. Collins v. Slade, 23 Week- 
ly Rep. 199. 

80. Wells V. Tolman 156 N. 
Y. 636, 51 N. E. 392; Mercer v. 
Woodgate. L. R. 5 Q. B. 26. 

81. Shreve v. Mathis, 63 N. J. 
Eq. 170, 52 Atl. 234; Gunson v. 
Healy, 100 Pa. 42. 

82. Griffith v. Rigg, 18 Ky. 
Law Rep. 463, 37 S. W. 58; Bax- 
endale v. North Lambeth Liberal, 
etc., Club (1902) 2 Ch. 427. 

83. Metcalfe v. Westaway, 34 
T^. .1. C. P. 113; Cleaves v. Bra- 
man, 103 Me. 154, 68 Atl. 857; 
Shreve v. Mathis, 63 N. J. Etj. 
170, 52 Atl. 234. 

84. Baxendale v. North Lam- 
beth Liberal Club (1902) 2 Ch. 
427. 



85. Shreve v. Mathis, 63 N. J. 
Eq. 170, 52 Atl. 234; Common- 
wealth V. Burford, 225 Pa. 93, 73 
Atl. 1064. 

In Tutwiler Coal, Coke & Iron 
Co. V. Tuvin, 158 Ala. 657, 48 So. 
79, it was apparently held that 
a person was not justified in using 
a way to go to a residence to 
collect a furniture bill unless 
circumstances appeared showing 
an invitation to such person on 
the part of the person entitled 
to the way, to use the way, or 
his consent to such use. It would 
seem that the purchase of the 
furniture might have been re- 
garded as justifying the inference 
that the purchaser consented to 
have the vendor send to collect 
the bill. The court emphasises 
the fact that the way was one of 
necessity, but it is difficult to see 
the materialty of this consider- 
ation. 



1334 Real Property. [§ 367 

not guilty of trespass in using the way, and the owner 
of the easement would, it seems, have a right of action 
in case there was an interference with the use of the 
way by a member of one of these classes. 

The owner of the right of way may have, in some 
cases, in addition to the privilege of passage, and as in- 
cidental thereto, the privilege of placing goods tempo- 
rarily on that part of the servient tenement on which the 
w^ay is located,^*^"^^ of letting horses and carriages stand 
thereon,®^ or of swinging a gate thereover.^^ The grant 
of a right of way in general terms has been construed as 
not enabling the grantee to lay a pipe for the transpor- 
tation of gas or oil,^*^ to string electric light wires,^^ 
to fence off the way,^- or to take ice,^^ or herbage.^'' 
One to whom was granted a right of way across a creek 
was regarded as entitled to build a bridge although for 
twenty years after the grant there was merely a ford.*'"*'* 

The person entitled to use a private way cannot 
deviate therefrom on the land outside of the way be- 
cause the way is impassable, unless, perhaps, there is 
an obligation upon the servient owner to repair the 

86-87. Appleton v. FuUerton, 1 A. 512, 33 Am. St. Rep. 55, 52 

Gray (Mass.) 186. Compare Kaler N. W. 590; Contra, Murray v. 

V. Beanaii, 49 Me. 207. Murray v. Dickson, 57 Tex. Civ. 

88. Van O'Linda v. Lathrop, 21 620, 123 S. W. 179, where there 
Pick. (AFass.) 292, 32 Am. Dec. were circumstances to show that 
261. it was contemplated that the way 

89. Ditto. was to be used for driving cattle, 

90. United States Pipe Line and Harvey v. Crane, 85 Mich. 
Co. V. Delaware, L. & W. R. Co., 316, 12 L. R. A. 601, 48 N. W. 
62 N. J. L. 254, 42 L. R. A. 572, 582, where the right of way was 
41 Atl. 759; Allen v. Scheib, 257 not created by grant but was laid 
Pa. 6, 101 Atl. 102. off under the statute. 

91. Carpenter v. Capital Elec- 93. Julian v. Woodsmall,' 82 
trie Co., 178 111. 29, 43 L. R. A. Ind. 568. 

645, 69 Am. St. Rep. 286, 52 N. E. 94. Emans v. Turnbull, 2 

973. Johns. (N. Y.) 313, 3 Am. Dec. 

92. Moffitt V. Lytle, 165 Pa. 427. 

173, 30 Atl. 922; Wiley v. Ball, 94a. Hammond v Hammond, 

72 W. Va. 683, 79 S. E. 659; Sizer 258 Pa. 51, 101 Atl. 855. 
V Quinlan, 82 Wis. 390, 16 L. R. 



§ 367] 



Easements. 



1335 



way,^^ or unless tlie latter has caused the obstruction 
of the way."*' 

Location. If the location and limits of the 



right of way are not defined in the grant, a reasonably 
convenient and suitable way is presumed to be in- 
tended, and the right cannot be exercised over the 
whole of the land."^ Subject to the requirement of 
reasonable convenience and suitability, the owmer of 
the servient tenement may ordinaril}'-, in such case, fix 
the location, and it has been considered that if he 
fails to do so, the owner of the easement is entitled 
to fix it."* And this is the case as regards a way 
of necessity to the same extent as any other way created 
by grant."^ 



95. Taylor v. Whitehead, 2 
Dou?. 7^5; Lund v. Wilcox, 34 
Utah, 205, 97 Pac. 33. 

96. Selby v. Nettlefold, 9 Ch. 
App. Ill; Farnum v. Piatt, 8 
Pick. (Mass.) 339; Bass v. Ed- 
wards, 126 I\Iass. 445; Kent v. 
Judkins, 53 Me. 162; Rockland 
Water Co. v. Tillson, 75 Me. 170; 
Haley v. Colcord, 59 N. H. 7, 47 
Am. Rep. 176; Jarsdadt v. Smith, 
51 Wis. 96. Contra, Williams v. 
Safford, 7 Barb. (N. Y.) 309. See 
Holmes v. Seely, 19 Wend. (N. 
Y.) 507. 

97. Long V. Gill, 80 Ala. 408; 
Johnson v. Kinnicutt. 2 Cush. 
(Mass.) 153; Gardner v. Webster, 
64 N. H. 520, 15 Atl. 144; Grafton 
V. Moir, 130 N. Y. 465, 27 Am. St. 
Rep. 533, 29 N. E. 974 (reser- 
vation). 

98. Ballard v. Titus, 157 Cal. 
673, 110 Pac. 118. Shedd v. Amer- 
ica Maize Products Co., 60 Ind. 
App. 146, 108 N. E. 610; Bangs v. 
Parker, 71 Me. 458; MoKenney 



McKenney, 216 Mass. 248, 103 N. 
E. 631; Bunch v. Wheeler, 210 
Mo. 622, 109 S. W. 654; Callen v 
Hause, 91 Minn. 270, 97 N. W. 
973; Smith v. Wiggin, 52 N. H. 
112; Peduzzi v. Restelli, 79 Vt. 
349, 64 Atl. 1128; Stephens v. Gor- 
don, 22 Can. Sup. Ct. 61. In Mo- 
Kell V. Collins Colliery Co., 46 W. 
Va. 625, 33 S. E. 765, it is said 
that the owner of the way may 
locate it. The opinion refers 

to Hart V. Connor, 25 Conn. 
331, but there the right to locate 
the way was expressly reserved 
99. Gale, Easements [8th ed.] 
1982; Kripp v. Curtis, 71 Cal. 62, 
n Pac. 879; Ritchey v. Welsh. 149 
Ind. 214, 40 L. R. A. 105, 4S N. E. 
1031; Russell v. .Tackson, 2 Pick. 
(Mass.) 574; Bass v. Edwards, 

126 Mass. 445; Powers v. Harlow, 
53 Mich. 507, 51 Am. Rep. 154; 
Herrin v. Siebern, 46 Mont. 226, 

127 Pac. 323; Holmes v. Seely, 19 
Wend. (N. Y.) 507; Capers v. Wil- 
son. .3 McCord, (S. C.) 170; McMil- 



1336 



Real Property. 



[§ 867 



In case tliere has been, up to tlie time of the grant 
and at the time thereof, a user of the land for purposes 
of passage along a certain line, this will, it has been 
said, be presumed to be the location intended.^ 

Frequently, the location of the way is determined 
by subsequent agreement, ^^ or by the exercise of the 
right of way in a particular line with the acquiescence 
of the owner of the servient tenement,^ the parties to 
the grant thus placing their own construction thereon 
in this regard. 

The power of a court of equity to fix the location 
has been recognized in a number of cases,'' apparently 



len V. McKee, 129 Tenn. 39, 164 
S. W. 1197; Jenne v. Piper, 69 Vt. 
497, 38 Atl. 147. 

But not, it has been said, when 
the way of necessity resulted from 
a partition proceeding between 
several persons, so that the re- 
cognition of an option to locate in 
one of them would involve a power 
to discriminate between the 
others. Mesmer v. Uharriet, 174 
Cal. 110, 162 Pac. 104. 

1. Karnmuller v. Krotz, 18 
Iowa, 352; Cotting v. Murray, 209 
Mass. 133, 95 N. E. 212; Thompson 
V. Flint & P. M. R. Co., 131 Mich. 
95, 90 N. W. 1037; Crocker v. 
Crocker, 5 Hun, (N. Y.) 587; 
Kraut's Appeal, 71 Pa. St. 64; 
Kinney v. Hooker, 65 Vt. 333, 36 
Am. St. Rep. 864. 

la. Gerrish v. Shattuck, 128 
Mass. 571; Eureka Land Co. v. 
Watts, 119 Va. 506, 89 S. E. 968; 
See Morris v. Blunt, 49 Utah, 243, 
161 Pac. 1127. 

2. Roberts v. Stevens, 40 111. App. 
138; Dickenson v. Crowell, 120 
Iowa, 254, 94 N. W. 495; Roland 
V. O'Neal, (Ky.) 122 S. W. 827, 

(way of necessity) ; Bannon v. An- 



gier, 2 Allen (Mass.) 128; O'Brien 
V. Goodrich, 177 Mass. 32, 58 N. E 
151; Board of Sup'i^ of Lamar 
County V. Elliott, 107 Miss. 841, 66 
So. 203; Davis v. Watson, 89 Mo. 
App. 15; Wynkoop v. Burger, 12 
Johns. (N. Y.) 222; Crocker v. 
Crocker, 5 Hun, (N. Y.) 587; 
Warner v. Columbus, etc., R. Co. 
39 Ohio St. 70; Eureka Land Co. v. 
Watts, 119 Va. 506, 89 S. E. 968; 
Fritsche v. Fritsche, 77 Wis. 266, 
45 N. W. 1088; Kalinowski v. 
Jacobowski, 52 Wash. 359, 100 Pac. 
852. 

But it was held that the acqui- 
escence by the servient owner in 
the passage by the dominant 
owner over a particular line did 
not show a location of the way in 
this line if the condition of the 
servient tenement was such that 
it was immaterial where the other 
passed. Smith v. Wiggin, 52 N. H. 
112. And see Colt v. Redfield, 59 
Conn. 427, 22 Atl. 426. 

3. Lide v. Hadley, 36 Ala. 627, 
76 Am. Dec. 338; Ballard v. Titus, 
157 Cal. 673, 110 Pac. 118; David- 
son V. Ellis, 9 Cal. App. 145, 98 
Pac. 254; McKenney v. McKen- 



§ 367] Easements. 1337 

on the ground that a multiplicity of suits is thereby 
avoided. 

Width of way. As regards the width of the 

way, a specific statement in the grant obviously gov- 
erns,^ and such a statement is not controlled by con- 
siderations as to what is reasonable or necessary.^ A 
specification of the way as being of a certain width 
has been regarded as not entitling the grantee to 
utilize more than that width in order to be able to 
make a road of that width.*^ 

If the Avidth is not fixed by the terms of the grant, 
the grantee is ordinarily entitled to a way of such width 
as is sufficient to afford reasonable access and egress.'^ 
And if the way is granted for a particular purpose, 
what is reasonably necessary for that purpose is to be 
considered.^ That the grantee used a particular width 
with the acquiescence of the grantor has been regarded 
as controlling in this regard as a x>i'actical location of 
the way.^ And the particular grant may call for a 

ney, 216 Mass. 248, 103 N. E. a way three feet wide, the alley 

6731; Burnham v. Mahoney, 222 being clearly defined by per- 

Mass. 524, 111 N. E. 396; Higbee manent structures as an alley less 

Fishing Club v. Atlantic City than three feet wide. The refer- 

Electric Co., 78 N. J. Es. ence to width was obviously not a 

434, 79 Atl. 326 (way of statement of the width of the way 

necessity) ; Gardner v. Webster, 64 to be exercised, but merely an in- 

N- H. 520, 15 Atl. 144; McMillan accurate description of the place 

V. MfKee, 129 Tenn. 39, 164 S W. where it was to be exercised. 
1197 (way of necessity). 7. Bright v. Allan, 203 Pa. 386; 

4. See Stetson v. Curtis, 119 Lipsky v. Heller, 199 Mass. 310, 85 
Mass. 266; Gray v. Kelley, 194 N. E. 453; Walker v. Pierce, 38 Vt. 
Mass. 533, 80 N. E. 651. 94; Wiley v. Ball, 72 W. Va. 685, 

5. Ballard v. Titus, 157 Cal. 79 S. E. 659. 

673, 110 Pac. 118. 8. Drummond v. Foster, 107 

6. Ballard v. Titus, 157 Cal. Me. 401, 78 Atl. 470; O'Brien v. 
673, 110 Pac. 118; Dewire v. Han- Murphy, 189 Mass. 353, 75 N. E. 

ley, 79 Conn. 454, Atl. 573. ''^'Il- ^ ^ _,„ 
V o* o* *r,T^t.., 9- George V. Cox, 1 14 Mass. 382. 
In Stevenson v. Stewart, 7 Phila. iq. Salisbury v. Andrews, 19 
29.3, it was considered that a grant pick. (Mass.) 250; Gerrish v. 
of a right to use an alley three Shattuck. 128 Mass. 571; Steven- 
feet wide did not give a right to son v. Stewart, 7 Phila. (Pa.) 293. 



1338 



Eeal Peoperty. 



[§ 367 



construction as intending a way as already existent and 
defined by use or paving or the like.^<^ A grant or reser- 
vation of a right of passage over a space of a named 
width has been construed as giving a right of way, not 
of that width, but of merely a convenient width, to be 
located upon that space. ^^ 

Change of location. After the point or place 

at which, or line along which, an easement is to be ex- 
ercised has once been fixed, whether by the express 
terms of the grant, or by agreement or acquiescence, one 
of the parties cannot change such location without the 
consent of the other.^^ There are in this country, how- 
ever, several cases to the effect that the location of 
a way may be changed by oral agreement of the 
parties, or agreement inferred from conduct. ^^ These 



But a grant of a right of way 
over an existing road does not 
necessarily involve a right of 
way as to the whole width of 
the road, so as to preclude the 
erection of an obstruction on the 
road not interfering with the 
reasonable exercise of the ease- 
ment. Grafton v. Moir, 130 N. Y 
465, 29 N. E. 974, 27 Am. St. Rep. 
533; Abney v. Twombley, 39 R. 
I. 304, 97 Atl. 806; Clifford v. 
Hoare, L. R. 9 C. P. 362. "See 
Gimble v. Wehr, 165 Wis. 1, 160 
N. W. 1080. 

11. Johnson v. Kinnicut, 2 
Gush. (Mass.) 153; Short v. De- 
vine, 146 Mass. 119, 15 N. E. 148. 

In Cleaves v. Braman, 103 Me. 
154, 68 Atl. 857, it was held that 
the grant of a way over "a piece 
of land forty feet wide in every 
part" did not entitle the grantee 
to use the whole forty feet if 
not needed. Compare Tudor Ice 
Co. v. Cunningham, 8 Allen 



(Mass.) 139. 

12. Richey v. Welsh, 149 Ind. 
214, 40 L. R. A. 105, 48 N. E. 1031; 
Jenuison v. Walker, 11 Gray, 
(Mass.) 423 (aqueduct) ; Kesseler 
V. Bowditch, 223 Mass. 265, 111 
N. E. 887 (windows) ; Galloway 
V. Wilder, 26 Mich. 97; Jaqui v. 
Johnson, 27 N. J. Eq. 526; Man- 
ning V. Port Reading R. Co., 54 
N. J. Eq. 46, 33 Atl. 802; John- 
son V. Hahne, 61 N. J. Eq. 438, 
49 Atl. 5 (easement of light) ; 
Onthank v. Lake Shore R. Co., 
71 N. Y. 174 (aqueduct) ; Moore- 
Lead V. Snyder, 31 Pa. 514 (tail 
race) ; Garraty v. Duffy, 7 R. I. 
476; Eureka Land Co. v. Watts, 
119 Va. 506, 89 S. E. 968 (way); 
Rhoades v. Barnes, 54 Wash. 145, 
102 Pac. 884 (right to take water 
from stream). 

13. Durkee v. Jones, 27 Colo. 
159, 60 Pac. 618; Peck v. Lloyd, 
38 Conn. 566; Wynkoop v. Burger, 
12 Johns. (N. Y.) 222; Hamilton 



§ 367] Easements. 1339 

cases do not explain how, since an easement can be 
created only by grant or its equivalent, one can ac- 
quire, by oral agreement, an easement not previously 
existing, even though he does, in exchange therefor, 
relinquish a similar easement which he has in the same 
land. A right of wa}^ along line A is not the same ease- 
ment as a right of way along line B, even though the 
dominant and servient tenements are identical in the 
two cases. There are cases in this country,^* as in 
England, ^^ in which the view is indicated that the 
substituted way is to be regarded as temporary only, 
so that if such way is withdrawn by the owner of the 
servient tenement, the other has a right to use the old 
way. If, however, there is an intention permanently to 
change the route, it might well be found, it would seem, 
that the way over the old route is extinguished by 
abandonment.^*' And in ease the owner of the ease- 
ment makes expenditures on the servient tenement on 
the faith of the oral agreement, he might be regarded 
as acquiring an easement in accordance therewith by 
estoppel. '' The court would no doubt endeavor to 
avoid a finding that the easement over the original 
route was abandoned unless it could recognize a valid 
easement over the new route. 

V White, 4 Barb. (N. Y.) 60; gerald, 70 Vt. 468, 41 Atl. 504 

Smith V. Barnes, 101 Mass. 275; Tee Mary Helen Coal Co. v. Hat- 

Chenault v. Gravitt, 27 Ky. L. field, 75 W. Va. 148, 83 S. E. 

Rep. 403, 85 S. W. 184; Berkey & 292. 

Gay Furniture Co. v. Valley City 14. Wright v. Willis, 23 Ky. 

Milling Co., 194 Mich. 234, 160 Law Rep. 556, 63 S. W. 991; 

N. W. 648; Rumill v. Robbins, 77 Hamilton v. White, 5 N. Y. 9. 

Me. 193 (way of necessity) ; Tar- 15. Lovell v. Smith, 3 C. B. N. 

butt V. Grant, 94 Me. 371, 47 Atl. S. 120. 

899; Smith v. Lee, 14 Gray 16. Crounse v. Wemple, 29 N. 

(Mass.) 473; Gage v. Pitts, 8 Y. 540; Pope v. Devereux, 5 Gray 

Allen (Mass.) 531; Davidson v. iMass.) 409. Nichols v. Peck, 70 

Kretz, 127 Minn. 313, 149 N. W. Conn. 439, 40 L. R. A. 81, 66 Am. 

652; Lawton v. Tison, 12 Rich. St. Rep. 122, 39 Atl. 830. 

(S. C.) 88; Stockwell v. Fit/.- 17. Ante, § 366(c). 



1340 



Real. Peoperty. 



[§ 367 



Party walls. The grant of an easement to use 

a wall for party wall purposes prima facie involves 
the privilege of increasing the height of the wall in 
order to erect a higher building, if this does not unduly 
burden the wall, or in any way operate to the detri- 
ment of the adjoining proprietor,^^ and subject to any 
express restriction in the grant as to the height to 
which the easement mav extend. ^^ 



18. Graves v. Smith. 87 Ala. 
450, 13 Am. St. Rep. 60, 6 So. 
304; Tate v. Fratt, 112 Cal. 613, 
44 Pac. 1061; Bright v. Bacon & 
Sons, 131 Ky. 848, 116 S. W. 386, 
20 L. R. A. N. S. 386; Field v. 
Leiter, 118 111. 17, 6 N. E. 877; 
Everett v. Edwards, 149 Mass. 
588, 5 L. R. A. 110, 14 Am. St. 
Rep. 462, 22 N. E. 52; Dauen- 
hauer v. Devine, 51 Tex. 480, 32 
Am. Rep. 627. 

That he can raise the wall to 
the extent that it is on his own 
land, see Andrae v. Haseltine, 58 
Wis. 395, 46 Am. Rep. 635. That 
he may raise a party wall al- 
though it is entirely on the land 
of the adjacent owner, see Tata 
V. Fratt, 112 Cal. 613, 44 Pac. 
1061; Dorsey v. Habersack, 84 
Md. 117, 35 Atl. 96. 

It has been held, in at least 
one case, that, upon using the 
addition to the wall, the other 
proprietor is bound to contribute 
tart of the cost. Sanders v. 
Martin, 2 Lea. (Tenn.) 213, 31 
Am. Rep. 598, And Citizens Fire 
Ins. Co. V. Lockridge & Ridge- 
way, 132 Ky. 1, 20 L. R. A. (N. S.) 
226, 116 S. W. 303, contains a 
dictum to that effect. Contra, 
Allen V. Evans, 161 Mass. 485. 



The assumption in Walker v. 
Stetson, 162 Mass. 86, that he is 
so bound, appears to be based 
on the language of the original 
agreement under which the wall 
was constructed. The statute oc- 
casionally provides that he shall 
be so liable. Howell v. Goss, 128 
Iowa, 569, 105 N W. 61; Younker 
v. McCatchcn, 177 Iowa, 634, L. 
R. A. 1917B, 949, 159 N. W. 441. 

The grant of a right to insert 
girders in a wall or to build 
against the wall does not con- 
fer party wall rights, so as to 
entitle the grantee to raise the 
wall. Moore v. Rayner, 58 Md. 
411; Miller v. Stuart, 107 Md. 23, 
68 Atl. 273. 

19. Frowenfelf v. Casey, 139 
CaL 421, 73 Pac. 152; Henne v. 
Lankershim, 146 Cal. 70, 79 Pac. 
853; Calmelet v. Sichl, 48 Neb. 
505, 67 N. W. 467, 58 Am. St. Rep. 
700; Fidelity Lodge v. Bond, 147 
Ind. 437, 45 X. E. 338, 46 N. B. 
825. 

It appears to be the rule in 
England that if the a'jjoining 
owners are tenants in common or' 
the wall, one of them cannot 
raise the wall without the others 
consent. Watson v. Gray, 12 Ch. 
Div. 192. A contrary view is as- 



§ 367] Easements. 1341 

« 

All additiou thus made to tlio wall by virtue of 
one's right to use the wall as a party wall partakes of 
the character of the ori2inal wall, as regards the right 
of user thereof.^*^^ And the requirement which exists 
in the case of the original wall, when placed on the 
division line, that it contain no openings, such as 
windows, ^^'^ applies as well to the addition placed upon 
the wall.2o 

It has been decided in one case that when a party 
wall is erected one-half on each of the two adjoining 
properties, one proprietor can extend his beams into 
the waU only so far as the limits of his own land,-^ and 
there are occasional intimations to this effect in other 
cases.2- There cannot well be, however, any absolute 
rule to this effect. A could no doubt grant to B in 
express terms the privilege of extending his beams 
entirely through the wall, and in any case the extent to 
which beams can be inserted is a question of the con- 
struction of the "party wall agreement," that is, of the 
grant of the easement, in each particular case, the 
usage of builders in that community being a weighty 
consideration in this connection. If the wall is en- 
tirely on the land of one proprietor, the adjoining pro- 
prietor, having a party wall easement therein, has al- 
most necessarily the i)rivilege of extending lieams in the 

serted in Wallis v. First Nat. Iowa, 634, L. R. A. 1917B, 949. 

Bank of Racine, 155 Wis. 305, 159 N. W. 441 (statute). 

143 N. W. 670. 19b. I'o.^t, this section, note 

19a. Graves v. Smith, 87 Ala.. 31. 

450, 13 Am. St. Rep. 60; Allen v. 20. Graves v. Smith. 87 Ala. 

Evans. 161 Mass. 485. See Field 450, 13 Am. St. Rep, 60, 6 So. 

V Leiter, 118 111. 17. 304; Dauenhauer v. Devine, 51 

For cases construing a contract Tex. 480, 32 Am. Rep. 627. 
as requiring contribution to the 21. Lederer & Strauss v. Col- 
cost of such an addition only for onial Investment Co.. 130 Iowa. 
£. building subsequently erected, 157, 8 Ann. Cas. 317. lOfi X. W. 
see Shaw v. Hitchcock, 119 Mass. 357. 

254; Fox v. Mission Free School. 22. McMinn v. Karter, 116 Ala. 

120 Mo. 349, 25 S. W. 172. And 390, 22 So. 17: Walker v. Stetson, 

see Tounker v. McCutchen, 177 162 Mass. 86, 38 N. E. IS. 

2 R. P.— 10 



1342 



Real Peopeety. 



[§ 367 



wall beyond the limits of his own land, and there is no 
legal objection to his having that privilege when the 
wall is ])artially on his own land. 

One of the two adjoining owners cannot ordinarily 
remove or impair the party wall,^^ except as such re- 
moval or impairment is merely temporary and for the 
'purpose of strengthening the wall or substituting there- 
for another wall more suitable for his purposes.^^ Even 
in the latter case he is liable for any damage caused 
to the other by his failure properly to support and 
protect the latter 's property during the operation,^^ 
or, if it is left to the other to protect his property, the 
latter is entitled to be indemnified the necessary ex- 
penses of such protection.^^ It does not seem that one 
altering a party wall by raising it or otherwise is ab- 
solutely liable for any injury which may result to the 
other in the course of the work. He is merely bound 
to use diligence to prevent such injury.^^ 



23. Nippert v. Warneke, 125 
Cal. 501. 61 Pac. 270; 
Montgomery v. Trustees of Ma- 
sonic Han, 70 Ga. 38; Schile v. 
Brokhahus. 80 N. Y. 619; Briggs 
V. Klosse, 5 Ind. App. 129, 51 Am. 
St. Rep. 238, 31 N. E. 208; Baugh- 
er V. Wilkins, 16 Md. 35, 77 Am. 
Dec. 279. But see Hieatt v. Mor- 
ris. 10 Ohio St. 523, 78 Am. Dec. 
280. Clemens v. Speed, 93 Ky. 
284, 19 L. R. A. 240, 19 S. W. 
660; WiUiamson Inv. Co. v. Wil- 
liamson. 96 \\Tash. 529, 165 Pac. 
385. 

24. Eno V Del Vecchio, 4 
Duer (N. Y.) 53, 6 Duer, 17; 
Putzel V. Drovers & M. Nat. Bank, 
78 Md. 349, 44 Am. St. Rep. 298, 
22 L. R. A. 632, 28 Atl. 276; Lex- 
ington Lodge V. Beal, 94 Miss. 521, 
49 So. 833; Mann v. Riegler, 33 
Ky. L. Rep. 774, 111 S. W. 300; 



Bellenot v. Laube, 104 Va. 842, 52 
S. E. 698. That he cannot sub- 
stitute another wall, see Partridge 
V. Lyon, 67 Hun, 29, 21 N. Y. 
Supp. 848. 

In some states the statute 
authorizes him to make alter- 
ations in the wall for his own 
purposes. Fowler v Saks, 7 
Mackey (D. C.) 570, 7 L. R. A. 
649; Haine v. ;Merrick, 41 La. 
Ann. 194. Evans v. Jayne, 23 Pa. 
34. 

25. Eno V. Del Vecchio, 4 
Duer (N. Y.) 53, 6 Duer. 17. 

26. Putzel V. Drovers & M. 
Nat. Bank, 78 M'd. 349, 44 Am. St. 
Rep. 298, 22 L. R. A. 632, 28 Atl. 
276. 

27. Negus V. Becker, 143 N. \^ 
303, 25 L. R. A. 667, 42 Am. St. 
Rep. 68, 38 N. E. 290, explaining 
Brooks V. Curtis, 50 N. Y. 639, 



§ 3G7] Easements. 1343 

If the wall is in a ruinous or unsafe condition, one 
proprietor may repair it or replace it by a new wall, 
and he is not liable for the cost of protecting the ad- 
joining property during the prosecution of the work, 
or for any loss necessarily incident thereto, as of 
business or rent,-^ though he is liable for any injury 
caused by negligence in the doing of the work.-^ 

There is at least one. decision to the effect that, if 
the party wall becomes unsafe or ruinous, it may be re- 
built by one of the adjoining owners, and the other will 
be compelled to pay part of the cost,-^^ 

A grant of the privilege of placing on the grantor's 
land a wall to be used as a party wall does not 
ordinarily enable the grantee to place thereon a wall 
with openings, such as windows, therein, the expression 
party wall meaning prima facie a solid wall.^^ A right 
to have openings in the wall may, however, be in- 
cluded in the grant,^^ or rather, as the owner of the 
land may grant the privilege of placing or maintaining 

10 Am. Rep. 545; Lexington. Lodge 401; Bellenot v. Laube's Ex'r, 104 

V. Beal, 94 Miss. 521, 49 So. 833. Va. 842, 52 S. E. 698; Sanders 

See Putzel v. Drovers & M. Nat. v. Martin, 2 Lea (Tenn.) 213. 
Bank, 78 Md. 349, 44 Am. St. Rep. 31. Bartley v. Spaulding, 21 

298, 22 L. R. A. 632, 28 Atl. 275, Dist. Col. 47; Kuh v. O'Reilly, 261 

and Heine v. Merrick, 41 La. Ann. 111. 437, 104 N. E. 5; Bonney v. 

194, 5 So. 760, 6 So. 637. Compare Greenwood, 96 Me. 335, 52 Atl. 

Fleming v. Cohen, 186 Mass. 323, 786; Coggins & Owens v. Carey, 

104 Am. St. Rep. 572, 71 N. E. 106 Md. 204, 10 L. R. A. (N. S.) 

563. 1191, 124 Am. St. Rep. 468, 66 

28. Partridge V. Gilbert, 15 N. Atl. 673; Norraille v. Gill, 159 
Y. 601, 69 Am. Dec. 632; Maypole Mass. 427, 38 Am. St. Rep. 441, 
V. Forsyth, 44 111. App. 494; Craw- 34 N. E. 94; Harber v. Evans, 101 
Shaw V. Sumner, 56 Mo. 517; Hoff- Mo. 661, 10 L. R. A. 41, 20 Am. 
man v. Kuhn, 57 Miss. 746, 34 Am. St. Rep. 646, 14 S. W. 750; De 
Rep. 491. Baun v. Moore, 167 N. Y. 598, 60 

29. Negus V. Becker, 143 N. Y N. E. 1110; Cutting v. Stokes, 72 
303; Crawshaw v. Sumner, 56 Mo. Hun. (N. Y.) 376, 25 N. Y. Supp. 
517. 365; Holden v. Tidwell, 37 OkU. 

30. Campbell v. Mesnr, 4 553, 133 Pac. 54. Dauenhauer v. 
Johns. Ch. (N. Y.) 334. See How/e Devine, 51 Tex. 480, 32 Am. Rep. 
v. Whitehead, 93 Miss. 578, 46 So. 627. 



1344 Eeal Pkoperty. [§ 368 

a solid wall on Ms land, so be may grant the privilege 
of placing or maintaining thereon a wall with open- 
ings.^^ It has been said that the right to have openings 
in a partition wall may be acquired by prescription,^^ 
but this appears to be questionable.^^ 

The grant of the j)rivilege of jjlacing or maintain- 
ing a wall in part on one's land may expressly include 
a right to have flues therein.^^ Or there may be an 
implied grant of such a right based on the existence of 
the flues before the severance of ownership of the two 
properties."' Whether the grant of the privilege of 
erecting a wall, or of utilizing it, for party wall pur- 
poses, involves a right to maintain flues therein, is a 
question of construction, in the solution of which the 
practice of builders in that community as regards the 
placing of flues in party walls is entitled to considera- 
tion.^^ 

§ 368. Easements created by prescription. In the 
case of prescriptive easements, the mode and extent 
of user of the servient tenement permissible are 
determined, generally speaking, by the mode and extent 

32. Grimley v. Davidson, 13?> 37. Ingals v. Plamandon, 75 
111. 116, 24 N. E. 439; Weigmann 111. 118; De Baun v. Moore, 167 
V. Jones, 163 Pa. 330, 30 Atl. 198; X. Y. 598, 60 N. E. 1110. 
Reynolds v. Union Sav. Bank, 155 In Koolbeck v. Baaighn, 126 
Iowa, 519, 136 N. W. 529. Iowa, 194, it was held that in. 

33. Lengyel v. Meyer, 70 N. J. view of a statutory provision that 
Eq. 501, 62 Atl. 548; Dunscomb the builder of the wall shall 
V. Randolph, 107 Tenn. 89, 89 Am. insert flues at the request of 
St. Rep. 915, 64 S. W. 21; Stein v. the other, such other, having failed 
Bernsforj, 108 Minn. 177, 121 N. to make such request, cannot 
W. 879. Hammann v. Jordan, 129 utilize flues placed in the wall by 
N. Y. 61, 29 N. E. 294. the buil'der, though they extend 

34. Graves v. Smith, 87 Ala. over the limits of his lot. 

450, 5 L. R. A. 298, 13 Am. St. 38. See Hammann v. Jordan, 

Rep. 60, 6 So. 308. 129 N. Y. 61, 29 N. E. 294; De 

35. Post § 517. Baun v. Moore, 167 N. Y. 598, 60 

36. Pier v. Salot, — (Iowa), N. E. 1110. 
— , 107 N. W. 420. 



§ 369] Easements. 1345 

of the user during the prescriptive periocl.^*^ Accord- 
ingly a prescriptive right to divert or pollute water 
enables one to divert or pollute it to the extent to which 
the diversion or pollution extended during such peri- 
od,^ ^ and one having a prescriptive right to overflow 
another's land can overflow it to the extent to w^hich he 
was accustomed to overflow it during the prescriptive 
period.^"* But a question of very considerable difficulty 
may arise by reason of the assertion, by the person 
entitled to the easement, of a right of user of the same 
general character and extent as the prescriptive user, 
but varying in some degree therefrom. This matter 
is considered elsewhere in connection with the subject 
of prescription.*"'^ 

§ 369. Effect of change in dominant tenement. The 

fact that, after the making of a grant of an easement, 
there is a change in the mode in which the dominant 
tenement is utilized, so that as a result thereof the 
easement is more constantly exercised, has usually 
been regarded as not aifecting the existence of the 
easement.*^ Occasionally, however, a different view 

39. Wright v. Moore, 38 Ala. lisle v. Cooper, 21 N. J. Eq. 576; 
593, 82 Am. Dec. 731; Postle- Gilford v. WMnnipiseogee Lake 
thwaite v. Payne, 8 Ind. 104; Bar- Co., 52 N. H. 262; Tucker v. 
ry V. Edlavitch, 84 Md. 95, 33 L. Salem Flouring Mills Co., 13 Ore. 
R. A. 294, 35 Atl. 170; Prentice v. 28, 7 Pa-o. 53. Sabine v. Johnson, 
Geiger, 74 N. Y. 341; Lewis v. 35 Wis. 185. 

New York etc. R. Co., 162 N. Y. 40b. Post, § 531. 

202, 56 N. B. 540. Elliott v. Rhett, 41. Greist v. Amrhyn, 80 Conn. 

5 Rich. L. (S. C.) 405, 57 Am. 280, 68 Atl. 521 (sr'm?>Zf) ; Randall 

Dec. 750; Arbuckle v. Ward, 29 v. Grant, 210 Mass. 302, 96 N. E. 

Vt. 43. 672; Parsons v. New York N. H. & 

40. Crossley v. Lightowler, 2 H. R. Co., 216 Mass. 269. 103 N. 
Ch. App. 478; McCallum v. Ger- E. 693; Abbott v. Butler, 59 N. H. 
mantown Water Co., 54 Pa. St. 317; Kretz v. Fireproof Storage 
40, 93 Am. Dec. 656; Middlesex Co., 127 Minn. 304, 149 N. W. 648: 
Co. V. City of Lowell, 149 Mass. Gillespie v. Weinberg, 148 N. Y. 
509, 21 N. E. 872. 238, 42 N. E. 676, P'lint v. Bacon, 

40a. Turner v. Hart, 71 Mich. 13 Hun. (N. Y.) 454; Benner v. 
128, 15 Am. St. Rep. 243; Car- Junker, 190 Pa. 423, 43 Atl. 72; 



1346 



Eeal Pkoperty, 



[§ 369 



was adopted in the particular case,^^ It is, properly 
speaking, a question of the construction of the grant, 
tliat is, of whether the parties thereto intended that 
the easement should ]>e exercised irrespective of a 
change in the user of the dominant tenement, and, by 
the weight of authority, the presumption appears to be, 
as above indicated, that such was the intention. The 
increase of the burden on the servient tenement is, it 
would seem, immaterial, except as it may render it 
less probable that such a change of user was within the 
contemplation of the parties at the time of the grant. 

In accordance with the view ordinarily taken, that 
a change in the mode of utilizing the dominant tene- 
ment does not affect the existence of the easement, is 
the view generally adopted, that upon the subsequent 
subdivision of the original dominant tenement, a right 
of way is appurtenant to each and every part.^^ And 



Frazier v. Berry, 4 R. I. 440; 
United Land Company v. Great 
Eastern. Railway Co., L. R. 10 C'n. 
586; Newcomen v. Coulson, L. R. 
5 Ch. Div. 133; Finch v. Great 
Western R. Co., L. R. 5 Ex. D. 
254; White v. Grand Hotel, Eiast- 
bourne, Limited (1913) 1 Ch. 113. 

42. It was held that, where 
there was a grant of a way to a 
loft, and the space or opening 
under the loft then used as a 
wood house, the way no longer 
existed after the open space hari 
been built over and changed into 
a dwelling house. Allan v. Gom- 
me, 11 Adol. & E. 759. This de- 
cision was, however, questioned 
by Parke, B., in Henning v. Bur- 
net, 8 Exch. 187. 

In Wood V. Saunders, 10 Ch. 
App. 582, it was held that one 
to whom was granted a right of 
drainage through adjacent land 



for the benefit of land on which 
was a private residence at the 
time of the grant could not ex- 
ercise the right for the benefit 
of large additions made to the 
house for the purpose of changing 
it into a sanitarium. See also 
Great Western Railway v. Talbot 
(1902) 2 Ch. 759. 

In Goodwillie v. Commonwealth 
Electric Co., 241 111. 42, 89 X. E. 
272, it was held that the grant 
of a right to use a switch track, 
in favor of owners of a lumber 
yard, did not justify the use of 
the track for carrying coal to an 
electric plant thereafter con- 
structed on the site of the lumber 
yard. 

43. Currier v. Howes, 103 Cal. 
431, 37 Pac. 521; Sweeney v. Lan- 
ders Frary & Clark, 80 Conn. 575, 
69 Atl. 566; Durkee v. Jones, 27 
Colo. 159, 60 Paa 618; Brossart 



^ 369] 



Easements. 



1347 



the same rule has been applied in connection with an 
easement of another character.^^ 

An easement of necessity has been regarded as not 
limited, as regards its utilization, by the mode in which 
the dominant tenement was used at the time of the 
creation of the right, but as available for any use 
incident to a change in the use of such tenement.^ ^ 
And accordingly a way of necessity has been regarded 
as available to each one of various grantees of a part 
of the tenement to which the way was originally ap- 
purtenant.^^ 

In the case of a prescriptive easement, the question 
whether a change in the dominant tenement atfects 
the right to exercise the easement depends, in a general 
way, upon whether the effect of the change is materially 
to increase the burden upon the ser^dent tenement or 
alter the character of the user thereof.'*''^ 



V. Corlett, 27 Iowa, 288; Garrison 
V. Ru'^d, 19 111. 559; Underwood v. 
Carney, 1 Cush. (Mass.) 285; Dur- 
kin V. Cobleigh, 156 Mass. 108, 
17 L. R. A. 270, 32 Am. St. Rep. 
436, 30 N. E. 474; Forbes v. Com- 
monwealth, 172 Mass. 289, 52 N. 
E. 511. Moore v. White, 159 Mich. 
460, 124 N. W. 62; Dawson v. St. 
Paul F. & M. Ins. Co., 15 Minn. 
136. (Gil 102), 2 Am. Rep. 109; 
Diocese of Trenton v. Toman, 74 
N. J. Eq. 702, 70 Atl. 606 ; Lansing 
V. Wiswwall, 5 Denio (N. Y.) 213. 
Gunson v. Healy, 100 Pa. 42; 
Ehret v. Gunn, 166 Pa. 384, 31 
Atl. 200; Dee v. King, 77 Vt. 
230, 68 L. R. A. 860. 59 Atl. 839; 
Linkenhofer v. Grayhill, 80 Va. 
835; Newcomen v. Coulson, L. R. 
f. Ch. Div. 141. A different rule 
"would force every person who 
has a right of way to preserve 
his property entire, in order to 



preserve his passage." Tilgh- 
man, C. J., in Watson v. Bioren, 
1 S. & R. (Pa.) 227, 7 Am. Dec. 
617. 

44. Harris v. Drewe, 2 B. & 
Ad. 164 (church pew) ; Blood 
V. Millard, 172 Mass. 65, 51 N. 
E. 527 (right to take water from 
spring) ; Hills v. Miller, 3 Paige 
(N. Y.) 254, 24 Am. ,Dec. 218 
(right to have strip of land left 
vacant). 

45. Myers v. Dunn, 49 Conn. 
71; Whitticr v. Winkley, 62 N. H. 
3^8; Crotty v. New River & Poca- 
hontas Coal Co., 72 W. Va. 68, 
78 S. E. 233; Contra. Corporation 
of London v. Riggs, L. B. 13, Ch. 
Div. 798. 

46. Erie R. Co. v. S. H. Klein- 
man Realty Co., 92 Ohio St. 96, 
110 N. E. 527. 

46a. Post, § 531. 



1M8 Real Peopeety. [§ 370 

§ 370. Alterations and repairs. Tlie owner of the 
easement may enter on the servient tenement and make 
such changes therein as are necessary for the proper 
exercise of the easement.^'^ Thus, one having a right 
of way may prepare the land for its exercise, according 
to the nature of the way, that is, according as it may 
be a foot way, a horseway, or a way for all teams and 
carriages.^^ And he may subsequently make alterations 
in the servient tenement in so far as this may be neces- 
sitated by a change of conditions for which he is not 
responsible.^^ He cannot, however, make alterations in 
the servient tenement, which are not necessary for the 
exercise of the easement, even though they conduce to 
tlie convenience of its exercise, if such alterations will 
injuriously affect the servient tenement.^^ 

The o^\Tier of the easement may likewise enter on 
the servient tenement in order to make any repairs 
necessary to the exercise of the easement, and may 
make use of the servient tenement for this purpose to a 
reasonable extent ;^^ and he may even prevent the con- 

47. Newcomen v. Coulson, 5 Y. 37, 7 L. R. A. 226, 16 Am. St. 
Ch. Div. 133; Burris v. People's Rep. 800, 23 N. E. 442. 

Ditch Co., 104 Cal. 248, 37 Pac. 49. Nichols v. Peck, 70 Conn. 

922; White v. Eagle & Phenix 439, 40 L. R. A. 81, 66 Am. St. 

Hotel Co., 68 N. H. 38, 34 Atl. Rep. 122, 39 Atl. 493; Pinlinson 

€72; Freeman v. Sayre, 48 N. J. v. Porter, L. R. 10 Q. B. 188. 

Law, 37; Herman v. Roberts, 119 50. Capers v. McKee, 1 Strob. 

N. Y. 37, 7 L. R. A. 226, 16 Am. L. (S. Car.) 164; McMillen v. 

St. Rep ;^00, 23 N. E. 442; Ham- Crouin, 13 Hun (N. Y.) 68; Knud- 

mond V. Hammond, 258 Pa. 51, ion v. Frost, 56 Colo. 530, 139 

■:01 Atl 855; Wallis v. First Nat. Pac. 533; Hotchkiss v. Young, 42 

Bank of Racine, 155 Wis. 306, 143 Ore. 446, '71 Pac. 324; Redemp- 

N. W. (570. torists v. Wenig, 79 Md. 348, 29 

48. fjenhouse v. Christian, 1 Atl. 667; Draper v. Varnerin, 220 
Tei-m. Rep. 560; Newcomen v. Mass. 67, 107 N. E. 350. 
Coulsen, 5 Ch. Div. 133; Knudson 51. Pomfret v. Ricroft, 1 Wms. 
V. Frost, 56 Colo. 530, 139 Pac. Saund. 323, note 6; Pico v. Coli- 
533; White v. Eagle & Phenix nas, 32 Cal. 578; Lamott v. 
Hotel Co., 68 N. H. 38, 34 Atl. Ewers, 106 Ind. 310, 55 Am. St. 
672; Herman v. Roberts, 119 N. Rep. 746, 6 N. E. 636; Hammond 



§ 370] 



Easements. 



1349 



struction of a building necessary to the beneficial use of 
the land, if the building would prevent the making of 
repairs.^^ 

In the absence of an express stipulation or prescrip- 
tive obligation to that effect, there is no requirement 
that the owner of the servient tenement put or keep 
it in proper condition for the exercise of the easement, 
though he must not actively obstruct its exercise.^'' So 
the fact that the owner of a building has a right of 
support from an adjoining building does not entitle 
him to demand that the owner of the latter keep it in 
repair so as to furnish sufficient support,^^ nor can the 
owner of an upper floor compel the repair of the lower 
floor bv the owner thereof.^^ 



V. Woodman, 41 Me. 177, 66 Am. 
Dec. 219; Prescott v. White, 21 
Pick. (Mass.) 341 ; Brown v. 
Stone, 10 Gray (Mass.) 61, 69 Am. 
Dec. 303; McMillan v. Cronin, 75 
N. Y. 474; Thompson v. Uglow, 
4 Ore. 369; Walker v. Pierce, 38 
Vt. 94. 

In Kepler v. Border, 179 Iowa, 
218, 161 N. W. 302, where sev- 
eral different persons had the 
right to use a private road, the 
court made an order apportioning 
the cost of repairs as between 
them. 

52. Goodhart v. Kyeit, 25 Ch. 
Dlv. 182. 

53. Nichols v. Peck, 70 Conn. 
439, 40 L. R. A. 81, 66 Am. St. 
Rep. 122, 39 Atl. 493; Hastings 
V. Chicago, R. I. & P. R. Co., 148 
Iowa, 390, 126 N. W. 786; Brid- 
v.'ell V. Neltner, 173 Ky. 847, 191 
S. W. 633; Gillis v. Nelson, 16 La. 
Ann. 275; Ballard v. Butler, 30 
Me. 94; Rowe v. Nally, 81 Md. 
367, 32 Atl. 198; Doane v. Bad- 
ger, 12 Mass. 65; Harvey v. 



Crane, 85 Mich. 316, 12 L. R. A. 
601, 48 N. W. 582; Wynkoop v. 
Burger, 12 Johns. (N. Y.) 222: 
Herman v. Roberts, 119 N. Y. 371: 
7 L. R. A. 226, 16 Am. St. Rep. 
SCO, 23 N. E. 442. 

So he is under no obligation 
to fence off a way to which his 
land is subject. Brill v. Brill, 108 
N. Y. 511, 15 N. E. 538; Wiley 
v. Ball, 72 W. Va. 685, 79 S. E. 
659, and in the case of a ditch 
for the supply of drinking water, 
it is not prima facie for the 
owner of the servient tenement 
to fence off the ditch so that the 
water will not be polluted by 
his cattle. Bellevue v. Daly, 14 
Idaho, 545, 15 L. R. A. (N. S.) 
992, 94 Pac. 103^. And see Mc- 
Coy V. Chicago, M. & St. P. R. 
Co., 176 Iowa, 139, 155 N. W. 
995. 

54. Pierce v. Dyer, 109 Mass. 
374, 12 Am. Rep. 716. 

55. Tenant v. Goldwin, 1 Salk. 
360, 2 Ld. Raym. 1089; Colebeck 
v. Girdlers Co., 1 Q. B. Div. 234; 



1350 Real Property. [§ 370 

That one has party wall rights in a wall or a part 
of a wall imposes no obligation on him, or on the owner 
of the wall, to reconstruct it when destroyed by fire or 
other accidental cause. "^^^ And it would seem question- 
able, on principle, whether one person entitled to use 
a party wall should have contribution from the other 
on account of expenditures for repairs, additions or 
reconstruction, undertaken by the former for his own 
benefit, though enuring to the benefit of the latter.^-^'' 

The question of the liability for damage caused 
by the failure to repair or j^roperly to construct an 
appliance or structure on the servient tenement, the 
purpose of which is to make the exercise of the easement 
feasible or convenient, would seem ordinarily to de- 
pend on who is in control thereof. If the owner of the 
dominant tenement, for instance, constructs a con- 
duit or ditch on the servient tenement of which he 
retains control, he is liable, it would seem, if, by reason 
of failure to keep it in repair, the servient tenement isi 
flooded,^*^ and so it has been held that he is liable if 
damage accrues to cattle belonging to the owner of 
the servient tenement by reason of failure to protect 
them from the danger of falling into a ''washout" oc- 
curring in a ditch constructed by him.^^ On the other 

Pierce v. Dyer, 109 Mass. 374, 12 55b. But that there is a right 

Am. Rep. 716; Jackson v. Bruns, of contribution. Howze v. White- 

129 Iowa, 616, 3 L. R. A. (N. S.) head, 93 Miss. 578, 46 So. 401; 

510, 106 N. W. 1; Gale, Ease- Campbell v. Mesier, 4 Johns. Ch. 

ments (9th Ed.) 479. But see 334; Sanders v. Martin, 2 Lea 

dictum in Graves v, Berdan. 26 (Tenn.) 213. Contr<i, Anti- 

N. Y. 498. marchi's Exc'r v. Rugsell, 63 Ala. 

55a. Antomarchi's Ex'r v. 356, 35 Am. Rep. 40. See cita- 

Russell, 63 Ala. 356, 35 Am. Rep. tions, ante, § 356, notes 64-66. 

40; Partridge v. Gilbert, 15 N. 56. Egremont v. Pulman, M. 

Y. 601, 69 Am. Dec. 632; Odd & M. 404. See Williams v. Grou- 

Fellows' Hall Ass'n v. Hegele, cott, 4 Best & S. 199; Jones v. 

24 Ore. 16, 32 Pac. 679; Duncan Fritchard (1908), 1 Ch, 630. 

V. Rodecker, 90 Wis. 1, 62 N. W. 57. Big Goose and Beaver 

533. Ditch Co. v. Morrow, 8 Wyo. 547, 



§ 371] Easements. 1351 ' 

hand, it is well recognized that while the tenant of a 
room in an office building has an easement in the halls 
and elevators for the purpose of access to his room, the 
owner of the building, as having control of the halls 
and elevators, is the one liable for injuries caused by 
defects therein.^^ And one whose land is crossed by a 
railroad right of way is not liable for personal injuries 
caused to another by reason of defective railway equip- 
ment or negligent management thereof.^^'^ 

§ 371. Interference with user. Any act which inr 
terferes with the proper exercise of the easement, 
whether done by the o^vner of the servient tenement, or 
by a third person, is a ''disturbance" or ''obstruction" 
of the easement, for which an action will lie. A dis- 
turbance of the easement is usually by the owner of the 
servient tenement, and not by a third person, and what 
constitutes a disturbance by him may be best defined 
by stating what acts he may do without being guilty of 
a disturbance. 

The owner of the servient tenement may make any 
use thereof, which is not calculated to interfere with 
the exercise of the easement.^^ Accordingly, it has been 
held that one whose land is subject to an easement of 
flowage in favor of another may take ice formed on the 
water,^^^ unless this would interfere with the purpose 

80 Am. St. Rep. 955, 59 Pac. 159. N. W. 582; Pomeroy v. Salt Co.. 

58. See 1 Tiffany, Landlord & 37 Ohio St. 520; Smith v. Row- 
Ten., §§ 89, 90. land, 243 Pa. 306, 90 Atl. 183: 

58a. Earley v. Hall, 89 Conn. Abney v. Twombly, 39 R. I. 304, 

GOG, 95 Atl. 2. 97 Atl. 806; Southern Railway 

59. Long V. Gill, 80 Ala. 408: Co. v. Beaudrot, 63 S. C. 266, 41 
Rice V. Ford (Ky.), 120 S. W. S. E. 299; Rex v. Joliffe, 2 Term. 
288; Kansas Cent. R. Co. v. Allen, Rep. 95. 

22 Kan. 285, 31 Am. Rep. 190; 59a. Stevens v. Kelley, 78 Me. 

Chandler v. Goodridge, 23 Me. 78; 445, 57 Am. Rep. 913, 6 Atl. 868; 

Kendall v. Hardy, 208 Mass. 20, Paine v. Woods, 108 Mass. 160; 

94 N. E. 254; Harvey v. Crane, Eidemuller Ice Co. v. Guthrie, 42 

85 Mich. 316, 12 L. R. A. 601, 48 Neb. 238, 28 L. R. A. 581, 60 N. 



1352 



BiiAL Property. 



[§ 371 



for which the right of tiowage was created.^^'' And one 
whose land is subject to a right of way may take profits, 
such as herbage or minerals, from the ground on which 
the way is located,^^ and may even plough the ground, 
it has been said, pro\ided this does not unreasonably 
interfere with the exercise of the easement.*^^ He can- 
not pasture stock on the ground on which the way is 
located, especially if this is a source of danger to per- 
sons using the way.^^ 

The o^^Tier of the servient tenement may, it seems, 
at his own expense, make changes in connection with 
the appliances placed thereon for the purpose of ex- 
ercising the easement, in so far as such changes in no 
way interfere wath the exercise of the easement, he 
being entitled, except in so far as the exercise of the 
easement is concerned, to have his land in condition 
satisfactory to himself.^^^ 

The owner of land subject to a right of way may 
himself use the same way,*'^ provided this does not 



W. 717; Valentino v. Schantz, 216^ 
N. Y. 1, L. R. A. 1916B, 1044, Ann. 
Cas. 1917C, 780, 109 N. E. 866; 
Searle v. Gardner, 13 Atl. 835 
(Pa.) 

59b. Howe v. Andrews, 62 
Conn. 398, 26 Atl. 394; Stevens 
V. Kelley, 78 Me. 445, 57 Am. Rep. 
813, 6 Atl. 868; Bigelow v. Shaw, 
65 Micli. 341, 8 Am. St. Rep. 902, 
32 N. W. 800; Dodge v. Berry, 26 
Hun (N. Y.) 246. 

60. Smith v. Langewald, 140 
Mass. 205, 4 N. E. 571; Cleveland, 
C. C. & St. L. R. Co. V. Simp- 
son, 182 Ind. 693, 104 N. E. 301; 
Greenmount Cemetery Go's Ap- 
peal, 4 Atl. 528 (Pa.) 

61. Moffitt V. Lj^le, 165 Pa. 
173, 30 Atl. 922. 

62. Espencheid v. Bauer, 235 
111. 172, 85 N. E. 230. 



He cannot enclose a part of 
the land on which a railroad 
right of way is located, under 
claim of exclusive right. South- 
ern R. Co. V. Beaudrot, 63 S. C. 
266, 41 iS. E. 299. But he has, it 
has been decided, the right to ri 
private crossing over the right 
of v/ay if this does not unreason- 
ably interfere with the use of the 
right of way for railroad pur- 
poses. Cincinnati, H. & D. Co. 
V. Wachter, 70 Ohio St. 113, 70 N. 
E. 974. 

62a. See Olcott v. Thompson, 
59 N. H. 154, 47 Am. Rep. 184. 

63. Rice v. Ford (Ky.), 120 S. 
W. 288; Teachout v. Capital 
Lodge, 128 Iowa, 380, 104 N. W. 
440 (stairway) ; Morgan v. Boyes. 
65 Me. 124; Kretz v. Fireproof 
Storage Co., 127 Minn. 304, 149 



§ 371] 



Easements. 



135: 



iinreasonabh^ interfere with the exercise of the other's 
easement.''^ And he may also grant to another or 
others a similar right of way/^^ subject to the same 
proviso,*'^ and provided, further, the prior grant was 
not intended to be exclusive.^''' 

The owner of a right of way in a city cannot ordi- 
narily demand that the space over the way be absolutely 
free from projections above the way, such as bay win- 
dows, at such a height as not to interfere with the 
right of passage,^ ^ and the owner of the servient tene- 
ment may even place an arch over, or otherwise span, 
the line of the right of way, and erect a building thereon, 
provided the building is not so near the ground as 
unreasonably to interfere with the user of the way,*''^ 
and, pro^dded further, the language of the grant, con- 
strued wdth reference to the surrounding circumstances, 



N. W. 648; Campbell v. Kuhlraan, 
38 Mo. App 628; Goss v. Calhane, 
113 Mass. 423; Smith v. Row- 
land, 243 Pa. 306, 90 Atl. 183. 

64. Herman v. Roberts, 119 N. 
Y. 37, 7 L. R. A. 226, 16 Am. St. 
Rep. 800, 23 N. E. 442, where the 
owner of the servient tenement 
injured the roadway prepared by 
the owner of the dominant tene- 
ment, by hauling heavy loads 
thereover. 

65. Morgan v. Boyes, 65 Me. 
124; Smith v. Rowland, 243 Pa. 
306, 90 Atl. 183. See Morton v. 
Thompson, 69 Atl. 432, 38 Atl. 
S8. 

66. Greene v. Canny, 137 Mass. 
64; Jarman v. Freeman, 78 N. J. 
Eq. 464, 79 Atl. 1065, 83 Atl. 
S72. 

67. Greene v. Canny, 137 
Mass. 64; Thompson v. Germania 



Life Ins. Co., 97 Minn. 89. 106 N. 
W. 102. 

68. Bittello v. Lipson, 80 Conn. 
497, 69 Atl. 21; Burnham v. 
Kevins, 144 Mass. 88, 59 Am. Rep. 
61, 10 N. E. 494. But see 
Schmoele v. Betz, 212 Pa. 41, 108 
Am. St. Rep. 845, 61 Atl. 525. 

69. Atkins v. Bordman, 2 Mete. 
(Mass.) 457, 37 Am. Dec. 100; 
Lipsky V. Heller, 199 Mass. 310, 
85 N. E. 310; Duncan v. Gold- 
thwait, 216 Mass. 402, 103 N. E. 
701; Sutton v. Groll, 42 N. J. Eq. 
213, 15 L. R. A. 487; Hollins v. 
Demorest, 129 N. Y. 15 L. R. 
A. 487, 29 N. E. 1093; Grafton 
V. Moir, 130 N. Y. 465, 27 Am. St. 
St. Rep. 533, 29 N. E. 974; An- 
drews v. Cohen, 221 N. Y. 148, 116 
N. E. 862; Duross v. Singer, 224 
Pa. 573, 73 Atl. 951; Stevenson 
v. Stewart, 7 Phil. (Pa.) 293. 



1354 



Keal, Pboperty. 



[§ 371 



does not indicate an intention that nothing shall he 
erected thereover J <* 

— — Gates over way. The cases are generally to 
the effect that, in the absence of language or circum- 
stances calling for a different construction of the 
grant or reservation of a right of way, the owner of 
the servient tenement is entitled to maintain a fence 
■with a gate therein, at either end of the way, that is, 
at the point where the servient tenement abuts upon 
a highway or upon another's property,"^ and he may 
even be justified in placing, instead of a gate, remov- 



70. For cases in which the 
terms and circumstances of the 
grant of the way were regarded 
as such as to preclude any erec- 
tions over the way, at any height 
from the ground, see Schwoerer 
V. Boylston Market Ass'n, 99 
Mass. 285; Brooks v. Reynolds, 
106 Mass. 31; Attorney General 
V. Williams, 140 Mass. 329, 54 Am. 
Rep. 468; Crocker v. Cotting, 181 
Mass. 146, 63 N. E. 402; Frost v. 
Jacobs, 204 Mass. 1, 90 N. E. 
357; Goodwin v. Bragaw, 87 Conn. 
31, 86 Atl. 668. 

71. Green v. Goff, 153 111. 534, 
29 N. E. 975; Phillips v. Dress- 
ier, 122 Ind. 414, 17 Am. St. Rep. 
575, 24 N. E. 226; Boyd v. Bloom, 
152 Ind. 152, 52 N. E. 751 (al- 
though use of way to be "free 
and unincumbered) ; Berg v. 
Neal, 40 Ind. App. 575, 82 N. E. 
802; Maxwell v. McAfee, 9 B. 
Mon. (Ky.) 20, 48 Am. Dec. 409; 
Ames V. Shaw, 82 Me. 379, 19 Atl. 
856; Baker v. Frick, 45 Md. 337, 
24 Am. Rep. 506; Short v. De- 
vine, 146 Mass. 119, 15 N. E. 148; 
Gibbons v. Ebding, 70 Ohio St. 



298, 101 Am. St. Rep. 900, 71 N. 
E. 720; Connery v. Brooke, 73 
Pa. 80; Watson v. Coke, 73 S. 
Car. 36, 53 S. E. 537; Utah-Idaho 
Sugar Co. v. Stevenson, 34 Utah, 
184, 97 Pac. 26; Whaley v. Jar- 
rett, 69 Wis. 613, 2 Am. St. Rep. 
764; Collins v. Degler, 74 W. Va. 
455, 82 S. E. 265 (though grant 
of "free right of way") ; Mitchell 
V. Bowman, 74 W. Va. 498, 82 S. E. 
330. 

That a gate was there at the 
time of the grant is obvious- 
ly a circumstance tending to 
strengthen the presumption that 
it was contemplated by the par- 
ties that a gate might thereafter 
be maintained. Truax v. Greg- 
ory, 196 111. 83, 63 N. E. 674; Gar- 
land V. Furber, 47 N. H. 304. 
Conversely, the fact that the land 
had for a long time been used 
for purposes of passage without 
any gates having been erected 
tends to show that no right to 
erect gates was contemplated. 
See Raisor v. Lyons, 172 Ky. 314, 
f89 S. W. 234; Welch v. Wilcox, 
101 Mass. 162, 100 Am. Dec. 113; 



§ 371] Easements. 1355 

able bars at the termini of the way on tlie landJ^ It 
is readily conceivable, indeed, that he might have a 
right to maintain a fence at the terminns of a footway, 
with merely steps to aid in climbing the fence. On the 
other hand, if the grant or reservation, construed with 
reference to the surrounding circumstances, shows an in- 
tention that no fence or gate shall be erected, such a 
showing of intention is controlling.^^ 

In the absence of any express language bearing 
upon the question of the right in this regard, the 
courts ordinarily treat it as a question of fact whether 
gates or bars will unreasonably interfere with the 
exercise of the easement of passage.'^ Even though 
the owner of the servient tenement would not other- 
wise have the right to place a gate or bars across the 
way, he may acquire the right by reason of his main- 
tenance of the gate or bars for the prescriptive period.'^^ 

The courts have but rarely considered the question 
of the right of the owner of the servient tenement to 
maintain a fence with a gate therein, not at one or both 
of the termini of the way, but across the way at a 
point well within his own land,'^^ for the purpose of 
dividing his land into different tracts, to be utilized for 

Garland v. Furber, 47 N. H. 301; son v. Whiting, 141 Mass. 414 

Newsora v. Newsom (Tenn. Ch.), (existing lane); Patton v. West- 

56 S. W. 29. f.in Carolina Educational Co., 101 

72. Bakeman v. Talbot, 31 N. N. C. 408, 8 S. E. 140 (reserva- 
Y. 366, 88 Am. Dec. 275; Ball v. tion of "thirty three feet for a 
Allen, 216 Mass. 469, 103 N. E. street"). 

928; Goodale v. Goodale, 107 Me. 74. See Baker v. Frick, 45 Md. 

301, 78 Atl. 567; Jewell v. Cle- 337, 24 Am. Rep. 506; Jewell v. 

ment, 69 N. H. 133, 39 Atl. 582. Clement, 69 N. H. 133, 39 Atl. 

73. Mineral Springs Mfg. Co. 582; Brill v. Brill, 108 N. Y. 511, 
V. McCarthy, 67 Conn. 279 (way 15 N. E. 538; Connery v. Brooke, 
"to be unincumbered"); Devore 73 Pa. 80; Griffin v. Gilchrist, 29 
V. Ellis, 62 Iowa, 505, 17 N. W. R. I. 200, 69 Atl. 683, and other 
740 (fences along way) ; Goodale cases cited, aiite, notes 71-73. 

v. Goodale, 107 Me. 301, 78 Atl. 75. Ball v. Allen, 21G Mass. 469. 

567; Welch v, Wilcox, 101 Mass. 103 N. E. 928. 
162, 100 Am. Dec. 113; Dicken- 



1356 Real, Pboperty. [§ 371 

different purposes. Inability thus to divide his land by 
fences running across the line of the way might involve 
a very considerable hardship, and it does not seem 
that, in the ordinary case, the existence of a gate at 
a point within his own land would involve inconvenience 
to the person using the way to any greater extent than 
would a gate located at his boundary. Whether he may 
so erect a fence or fences across the line of the way 
for the purpose of dividing his land, with a gate 
therein at the point where the way strikes the fence, 
would seem properly to he determined by the same 
considerations as control in the case of a fence and gate 
at the terminus of the way, with the additional con- 
sideration, perhaps, of his bona fides in erecting the 
fence. 

In the case of a way based upon prescription, the 
question of the right of the servient owner to maintain 
a gate across the way has usually been regarded as a 
matter to be determined by the consideration whether 
such a gate was maintained during the prescriptive 
period.'^''' In other cases, however, the view has been 
adopted that the controlling consideration is whether 
the gate would involve an unreasonable interference 
with the exercise of the easement, having regard to the 
nature thereof.'^ ^ 

76. In Short v. Devine, 146 88 Am. Dec. 275, and is stated 

Mass. 119, 15 N. E. 148, the court in Bean v Coleman, 44 N. H. 539, 

apparently regards the fact that and Dyer v. Walker, 99 Wis. 404, 

the gate is "in the middle of" the 75 N. W. 79 (prescriptive way), 

way, and not at the terminus 77. Hill v. Miller, 144 Ga. 404, 

thereof, as a consideration ad- 87 S. E. 385; Frankhoner v. Cor- 

verse to the right to maintain der, 127 Ind. 164, 26 N. E. 766; 

it. Frazier v. Myers, 132 Ind. 71, 31 

That there may be a right to N. E. 536. Miller v. Pettit, 127 

maintain a fence and gate or Ky. 419, 105 S. W. 892; Shivers 

bars for the purpose of dividing v. Shivers, 32 N. J. Eq. 578, af- 

the servient tenement is appar- firmed 35 N. J. Eq. 562; Rogerson 

ently assumed in Groodale v. Good- v. Shepherd, 33 W. Va. 307, 10 

ale, 107 Me. 301, 78 Atl. 567; S. E. 632. 

Bakeman v. Talbot, 31 N. Y. 366, 78. Ames v. Shaw, 82 Me. 179, 



^ 371] 



Easements. 



1357 



Occasionally one having a right of way over an- 
other's land has been required to erect a gate or gates 
at the border of the land, to prevent the escape or en- 
trance of stock.'^'^ The imposition of such an active 
duty uix)n the owner of the dominant tenement to pro- 
tect the o^^^ler of the servient appears not to be gener- 
ally recognized." ^^ 

If the owner of the ser\dent tenement has the right 
to have a gate across the way, the owner of the ease- 
ment is under an obligation to shut the gate when he 
makes use of the way,'^ and a failure to do so, it ap- 
pears, operates to make his user of the way wrongful, 
constituting a trespass -on the sersaent tenement. ^^ 

Interference by third person. That A has an 



easement in land does not justify him in interfering, by 
the erection of structures or otherwise, ^rith the exer- 
cise of an easement belonging to B in the same land,*^ 
except, it seems, when such interference is necessary 



19 Atl. 856; Hartman v. Fick, 167 
Pa. 18, 31 Atl. 342, 46 Am. St. 
Rep. 658; Luster v. Garner, 128 
Tenn. 160, 48 L. R. A. (N. S.) 
87, Ann. Cas. 1914D, 769, 159 S. 
W. 604; Mitchell v. Bowman, 74 
W. Va. 498, 82 S. E. 330; Dyer 
V. Walker, 99 Wis. 404, 75 N. W. 
79. And see Evans v. Cook, 33 
Ky. Law Rep. 788, 111 S. W. 326. 

78a. Daniron v. Justice, 162 
Ky. 101, 172 S. W. 120; Moore v. 
White, 159 Mich. 460, 124 N. W. 
62. 

78b. That there is no such 
duty, see Rowe v. Nally, 81 Md. 
367. 32 Atl. 198. 

79. Amondson v. Severson. 37 
Iowa, 602; Truax v. Gregory, 196 
111. 83, 63 N. E. 674; Brill v. Brill, 
108 N. Y. 511, 15 N. E. 538; Dam- 
ron V. Justice, 162 Ky. 101, 172 

2 R. P.— 11 



S. W. 120. 

That the owner of the ease- 
ment is bound only to the ex- 
ercise of reasonable care to see 
that the gates are kept closed. 
See Rater v. Shuttlefield, 146 
Iowa, 512, 44 L. R. A. (N. S.) 101. 
125 X. W. 235. 

80. See Garland v. Furber, 47 
N. H. 301. 

81. West Louisville & X. R. 
Co., 155 Ala. 506, 46 So. 469; 
Goodwin v. Bragaw, 87 Conn. 31, 
86 Atl. 668; Murphy v. Marker, 
115 Ga. 77, 41 S. E. 585; Killion 
v. Kelly, 120 .Mass. 47; Freeman 
V. Sayre, 48 N. J. L. 37, 2 Atl. 
650; Ellis v. Academy of Muslo, 
120 Pa. 608, 6 Am. St. Rep. 739, 
15 Atl. 494; Allegheny Nat. Bank 
v. Reighard, 204 Pa. 391, 54 Atl. 
268. 



1358 



Eeal Pbopertt. 



[§ 371 



to the exercise of A's easement, and B's easement was 
acquired mth notice, actual or constructive, of the 
prior grant to A. 

Remedy. An action for the disturbance or 

obstruction of an easement shoukl, at common law, bo 
in case."'- Ejectment does not lie,'"'^ nor trespass qiiare 
clausum fregit.^^ There being an infringement of his 
right, the owner of the easement is entitled to at least 
nominal damages.^^ 

Notice to the owner of the servient tenement to 
remove an obstruction which he has interposed to the 
exercise of the easement is not necessary before bring- 
ing an action on account of such obstruction,^*^ but if 
the defendant, the owner of the servient tenement at 
the time of suit, is not the original creator of the ob- 
struction, and he has merely allowed an obstruction 
created by a former owner to remain, a previous re- 



82. Bale v. Todd, 123 Ga. 99, 
50 S. E. 990; Martin v. Bliss, 
5 Blackf. (Ind.) 35, 32 Am. Dec. 
52; Shaffer v. Smith, 7 Har. & J. 
(Md.) 67; Bowers v. Suffolk Mfg. 
Co., 4 Cush. (Mass.) 332; Os- 
borne V. Butcher, 26 N. J. Law 
308; Shroder v. Brenneman, 23 
Pa. St. 348. 

83. Adams, Ejectment, c. 2; 
Canton Co. v. City of Batimore, 
106 Md. 69, 11 L. R. A. (N. S.) 
129, 66 Atl. 671, 67 Atl. 274; Tay- 
lor V. G-ladwia, 40 Mich. 232; 
Brier v. State Exchange Bank, 225 
Mo. 673, 125 S. W. 469; Roberts 
V. Trujillo, 3 N. M. 87, 1 Pac. 
855; Child v. Chappell, 9 N. Y. 
246; Parker v. West Coast Pack- 
ing Co., 17 Ore. 510, 5 L.. R. A. 
61, 21 Pac. 822; Hancock v. Mc- 
Avoy, 151 Pa. St. 460, 18 L. R. A. 
781, 31 Am. St. Rep. 774, 25 Atl. 
47; Pritsche v. Fritsche, 77 Wis. 



270, 45 N. W. 1089; LeBlond v. 
Town of Peshtigo, 140 Wis. 604, 
25 L. R. A. (N. S.) 511, 123 N. W. 
157. 

84. Chitty, Pleading (7th Ed.) 
147, 159; Shafer v. Smith, 7 Har. 
& J. (Md.) 67; Morgan v. Boyes, 
65 Me. 124; Wetmore v. Robin- 
son, 2 Conn. 529; Osborne v. 
Butcher, 26 N. J. L. 308. 

85. Tuttle V. Walker, 46 Me. 
280; Collins v. St. Peters, 65 Vt. 
618, 27 Atl. 425; Dewire v. Han- 
ley, 79 Conn. 454, 65 Atl. 573; 
Harrop v. Hirst, L. R. 4 Exch. 
43; Goddard, Easements (6th Ed.) 
438. 

86. Collins v. St. Peters, 65 Vt. 
618, 27 Atl. 425. But the ease- 
ment may Itself involve a neces- 
sity of notice to the owner of 
the servient tenement, that is, the 
easement may be one to be ex- 
ercised only after notice to such 



§ 371] 



Easements. 



1359 



quest to him to remove it is, it seems, necessary, unless, 
at least, he already had notice of the easement and its 
obstruction,^^ this according with the rules ordinarily 
applicable to actions on account of the maintenance of 
a nuisance. ^^ 

A tenant of land holding under a lease may bring an 
action on account of the disturbance of an easement, he 
being directly affected thereby.^^^ The reversioner may 
also sue if the disturbance is of such a permanent 
character or otherwise of such a nature that he can be 
regarded as suffering damage therefrom.^^'' 

In view of the incorporeal character of a j)ew, the 
remedy for interference, with the pew holder's right 
would seem properly to be an action on the case.^® In 
a number of cases in this country, however, it is held 
that trespass quare clausum fregit or ejectment will 
lie.9« 



cw);er. See Phipps v. Johnson, 
99 Mass. 26. 

87. Hogan v. Barry, 143 Mass. 
538, 10 N. E. 253; Elliott v. 
Rhett, 5 Rich. (,S. C.) 405, 57 Am. 
Dec. 750; Gale, Easements (8th 
Ed.) 588. 

88. See note to Leahan v. 
Cochran, 86 Am. St. Rep. at p. 
508, et seq.; 1 Tiffany, Landlords 
Ten. p. 791. 

88a. Gale, Easements (8th 
Ed.), 582; Walker v. Clifford, 128 
Ala. 67, 86 Am. St. Rep. 74, 29 
So. 588; Hamilton v. Dennison, 
56 Conn. 359. 1 L. R. A. 287, 15 
Atl. 748; Greist v. Amryhn, 80 
Conn. 280, 68 Atl. 521; Morrison 
V. Chicago & N. W. R. Co., 117 
Iowa, 587, 91 N. W. 793; Foley 
V. Wyeth, 2 Allen (Mass.) 135; 
Coleman v. Holden, 88 Miss. 798, 
41 So. 374; Schmoele v. Betz, 212 
Pa. 32, 108 Am. St. Rep. 845, 61 



Atl. 525. 

88b. See 2 Tiffany, Landlord & 
Ten., § 353a. 

89. See Stocks v. Booth, 1 
Term R. 431; Bryan v. Wliistler, 
8 Barn. & C. 294; Perrin v. 
Granger, 33 Vt. 101; Trustees of 
ihe Third Presbyterian Congrega- 
tion V. Andruss, 21 N. J. Law, 325; 
Daniel v. Wood, 1 Pick. (Mass.) 
102, 11 Am. Dec. 151. 

90. Jackson v. Rounseville, 5 
Mete. (Mass.) 127; O'Hear v. De 
Goesbriand, 33 Vt. 593, 80 Am. 
Dec. 653; Howe v. Stevens, 47 
Vt. 262; Shaw v. Beveridge, 3 
Hill (N. Y.) 26, 38 Am. Dec. 616; 
First Baptist Church v. Witherell, 
3 Paige (N. Y.) 296, 24 Am. Dec. 
223. These cases seem to be based 
on the theory that a pew is "real 
estate," and that these forms of 
action always lie for "real es- 
tate." On this theory, trespass 



1360 Real Pkopeety. [^ 371 

Injunction. Tlie question of the propriety of 



the issuance of an injunction to restrain an interfer- 
ence with an easement, especially of a right of way, 
has been frequently the subject of litigation. An in- 
junction for this purpose may assume a mandatory as 
well as a prohibitory form, as w^hen, in the case of 
the obstruction of the exercise of the easement by a 
structure of a permanent or quasi permanent character, 
the decree requires the removal of the structure.^^ 

In some of the reported cases, the court recognizes 
the right to an injunction to restrain the obstruction of 
an easement without the mention of any possible limita- 
tions upon the right,^^ and in favor of such right, when 
the obstruction is of a permanent or quasi permanent 
character, is the consideration that otherwise the o^\mer 
of the easement would be in effect compelled to sell 
his right for a price equal to the amount of the 
damages which he may recover on account of the 
obstruction.^^ More usually, however, the courts recog- 

Quare clausum fregit or eject- 454, 65 Atl. 573; Shedd v. Ameri- 

ment would lie for any ease- can Maize Products Co., 60 Ind. 

ment or right of profit, since they App. 146, 108 N. E. 610; Swisher 

are all "real estate," except when v. Chicago & A. Rwy. Co., 235 

the interest is merely for years. Mo. 430, 138 S. W. 505; Nash v. 

91. See Stallard v. dishing, 76 New England Mut. Life Ins. Co., 
Cal. 472, 18 Pac. 427; Feitler v. J27 Mass. 91; Vinton v. Greene, 
Dobbins, 263 111. 78, 104 N. E. 158 Mass. 426, 33 N. E. 607;.Agnew 
1088; Robbins v. Archer, 147 v. Pawnee City, 79 Neb. 603, 113 
Iowa, 743, 126 N. W. 936; Henry N. W. 236; Herman v. Roberts. 
V. Koch, 80 Ky. 391, 44 Am. Rep. 119 N. Y. 37, 7 L. R. A. 226, 16 
484; Schaidt v. Blaul, 66 Md. 141, Am. St. Rep. 800, 23 N. E. 442. 

6 Atl. 669; Green v. Richmond, Nicholas v. Title & Trust Co.. 79 

155 Mass. 188, 29 N. E. 770; Long- Ore. 226, Ann. Cas. 1917A, 1149, 

ton V. Stedman, 182 Mich. 405, 154 Pac. 391; Bowers v. Myers, 

148 N. W. 738; Dulce Realty Co. 237 Pa. St. 533, 85 Atl. 860; Kalin- 

V. Staed Realty Co., 245 Mo. 417. owski v. Jacobowski, 52 Wash. 

151 S. W. 415; Rogerson v. Shep- 359, 100 Pac. 852. 

herd, 33 W. Va. 307, 10 S. E. 632. 93. See Tucknr v. Howard, 128 

92. See McCann v. Day, 57 111. Mass. 361; Manbeck v. Jones, 190 
100; Dewire v. Hanley, 79 Conn. Pa. St. 171, 42 Atl. 536. But the 



§ 371] 



Easements. 



1361 



nize some restrictions upon the right to an in- 
junction for this purpose.^ ^*^ One such restriction is to 
the effect that equity will not take jurisdiction if it 
does not clearly appear that the easement actually ex- 
ists in the applicant for the injunction, it being for a 
court of law rather than for one of equity to deter- 
mine the existence of an easement."^ It has in one case 
been asserted that, in the case of a right of way, the 
location of the way must clearly appear.^' It has like- 
wise, been stated that the injury to be prevented must 
be irreparable, or that an injunction will issue, pro- 
vided the injury is of that character, '"^ and that the 
threatened interference with the exercise of the ease- 



fact that the injurj' can be com- 
pensated in damages has been 
referred to as a ground for re- 
fusing an injunction. Green v. 
Richmond, 155 Mass. 188; Berke- 
ley V. Smith, 27 Gratt. (Va.) 
892. 

93a. See editorial note, 10 Co- 
lumbia Law Rev. 355. 

94. Oswald v. Wolf, 129 111. 
200, 21 N. E. 839; Feitler v. Dob- 
bins, 263 111. 78, 104 N. E. 1088; 
Bennett v Seligman, 32 Mich. 500; 
Hart V. Leonard, 42 N. J. Eq. 
416, 7 Atl. 865; Todd v. Staats, 
60 N. J. Eq. 507, 46 Atl. 645; 
ITacke's Appeal, 101 Pa. 245; Sea- 
board Air Line R. Co. v. Olive. 
142 N. C. 257, 55 S. E. 263. 

Conversely it is said that an 
injunction may issue if the ex- 
istence of the easement is not 
doubtful. Espencheid v. Bauer, 
235 111. 172, 85 X. E. 230; Ober- 
heim v. Recside, 116 Md. 265, 81 
Atl. 590; Imperial Realty Co. v. 
West Jersey & S. R. Co., 78 N. 
J. Eq. 110, 77 Atl. 1041; Manbeck 



V. Jones, 190 Pa. 171, 42 Atl. 536; 
Garvey v. Harbison-Walker Re- 
fractories Co., 213 Pa. 177, 62 Atl. 
778. 

That the determination of the 
existence and character of the 
easement involves the construc- 
tion of a written instrument does 
not appear to be ground for re- 
fusing relief in equity. Shreve 
v. Mathis, 63 N. J. Eq. 170, 52 
Atl. 234; Oberheim v. Reeside, 
116 Md. 265, 81 Atl. 590. 

95. Fox V. Pierce, 50 Mich. 500, 
15 N. W. 880. But see Bright v. 
Allan, 203 Pa. 386, 53 Atl. 248. 

96. Murphey v. Harker, 115 
Ga. 77, 41 S. E. 585; Oswald v. 
Wolf, 129 III. 200, 21 N. E. 839; 
Feitler v. Dobbins, 263 III. 78, 
104 N. E. 1088; Henry v. Koch, 
20 Ky. 391, 44 Am. Rep. 484; Jay 
v. Michael, 92 Md. 198, 48 Atl. 
61; West Arlington Land Co. of 
Baltimore County v. Flannery, 115 
Md. 274, 80 Atl. 965; Rogerson 
V. Shepherd, 33 W. Va. 307, 10 
S. E. 632. 



1362 Real Pkoperty. [-§ 371 

ment must be substantial.'^' Eeference is also occa- 
sionally made to the permanent or continuous character 
of the obstruction as a consideration in favor of grant- 
ing such relief.^^ The fact that the plaintiff has not 
yet suffered any damage by reason of the easement does 
not appear to be conclusive against his right to an in- 
junction.^^ Occasionally an injunction has been refused 
on the ground that it would operate oppressively, the 
owner of the easement being left to his remedy at 
law/ or a decree being made for the ascertainment and 
payment of damages. To some degree, as ordinarily in 
connection with an application for an injunction, the 
matter is within the discretion of the court, and it has 
been said that one will not be required to remove an 
obstruction of a merely partial character, if this would 
bear upon him with undue severity,^ especially if the 
owner of the easement has been guilty of laches in not 
earlier seeking redress.^ 

Abatement. The person entitled to exercise an 

easement may himself remove or "abate" a structure 
or object which obstructs its exercise,^ provided, per- 

97. Hagerty v. Lee, 45 N. J. 109 Pac. 87; Feitler v. Dobbins, 
Eq. 1, 15 Atl. 399; Green v. Rich- 263 111. 78, 104 N. E. 1088; Swift 
mond, 155 Mass. 188, 29 N. E. v. Coker, 83 Ga. 789, 20 Am. St. 
770; Bentley v. Root, 19 R. I. Rep. 347, 10 S. E. 442; Swisher 
205, 32 Atl. 918; Wilson v. Cohen, v. Chicago, & A. Ry. Co., 235 Mo. 
Rice Eq. (S. Car.) 80. Compare 430, 138 S. W. 505. 

Schmoele v. Betz( 212 Pa. 32, 1. McBryde v. Sayre, 86 Ala. 

108 Am. St. Rep. 845, 61 Atl. 525. 458, 3 L. R. A. 861, 5 So. 791; 

98. Danielson v. Sykes, 157 Hall v. Rood, 40 Mich. 46; Rich- 
Cal. 686, 28 L. R. A. (N. S.) ard's Appeal, 57 Pa. St. 105. 
1024, 109 Pac. 87; Russell v. 2. Berkeley v. Smith, 27 Gratt. 
Napier, 80 Ga. 77, 4 S. E. 857; (Va.) 892. 

Webber v. Gage, 39 N. H. 182; 3. Green v. Richmond, 155 

Shreve v. Mathis, 63 N. J. Eq. Mass. 188, 29 N. E. 770: Bentley 

170, 52 Atl. 234; Miller v. Lynch, v. Root, 19 R. I. 205. 

149 Pa. 460, 24 Atl. 80. 4. Green v. Richmond, 155 

99. Danielson v. Sykes, 157 Mass. 188, 29 N. E. 770. 

Cal. 686, 28 L. R. A. (N. S.) 1024, 5. Quintard v. Bishop, 29 Conn. 



<^ 372] Easements. 1363 

haps, the circumstances are not such that the removal 
may cause a breach of the peace.*^ If, however, the ob- 
struction was created by a foiTuer owner of the land 
and merely allowed by the subsequent owner to re- 
main, its abatement by the owner of the easement is 
justified, it seems, only after he has notified the owner 
of the land to abate itJ And such notice appears to 
be necessary even as against the original creator of the 
obstruction, if the abatement involves a trespass upon 
the latter 's land.^ 

IV. Extinction of Easements. 

§ 372. Cessation of purpose -of easement. It has 

been said that when an easement is created for a par- 
ticular jDurpose, it comes to an end upon a cessation of 
that purpose,^ which means, apparently, that an ease- 
ment which is created to endure only so long as a 
particular purpose is subserved by its exercise, comes 
to an end when it can no longer subserve such purpose. ^<^ 

366; Sargent v. Hubbard, 102 8. Jones v. Williams, 11 Mees. 

Mass. 380; Morgan v. Boyes, 65 & W. 176; Lemmon v. Webb 

Me. 124; Joyce v. Conlin, 72 Wis. (1905), App. Cas. 1. 

607, 40 N. W. 212. 9. National Guaranteed Manure 

6. Schmidt v. Brown, 226 111. Co. v. Donald, 4 Hurlst. & N. 8; 
590, 11 L. R. A. (N. S.) 457, 117 Long v. Louisville, 98 Ky. 67, 32 
Am. St. Rep. 261. 80 N. E. 1071; s. W. 271; Chicago & N. W. Ry. 
Keplinger v. Woolsey, 4 Neb. ,Co. v. Sioux City Stock-Yards 
(unoff) 282, 93 N. W. 1008. Co., 176 Iowa, 659, 158 N. W. 

But in Davies v. Williams, 16 769; Hahn v. Baker Lodge No, 

Q. B. 546, the removal of a house, 47, 21 Ore. 30, 13 L. R. A. 158, 

which was at the time inhabited, 28 Am. St. Rep. 723, 27 Pac. 166; 

was regarded as justifiable, pro- Riefler & Sons v. Wayne Storage 

vided notice to remove it had been Water Power Co., 232 Pa. 282, 81 

previously given. Atl. 300. 

7. O'Shaughnessy v. O'Rourke, That an appurtenant easement 
36 Miss. 518, 73 N. Y. Supp. 1070. iy, not extinguished by an attempt 
Applying the rule which exists to separate it from the dominant 
in the ordinary case of a nui- tenement, see note in 20 Harv. 
sance, as asserted in Penruddock's Law Rev. at p. 136. 

Case, 5 Co. Rep. 101. 10. See Cotting v. Boston, 201 



1364 Real Peoperty. [^ 372 

Tlie question then is, in each case, what is the particular 
purpose to be subserved by the easement, and this, 
in the case of an easement created by grant, is a question 
of intention. In the case of an easement created by 
prescription, on the other hand, the question as to what 
is the particular purpose to be subserved l)y the ease- 
ment is i)resumably to be determined with reference 
to the apparent purpose of the user during the pre- 
scriptive period. 

An easement to use a dock or waterway for vessels 
has been regarded as coming to an end when, owing to 
the construction of a street by the municipality, such 
use of the dock or waterway became impossible.^^ And 
an easement to be exercised for the benefit of a partic- 
ular lot has been considered to cease when the lot 
became permanently submerged by the waters of a 
river,^^ or the lot was appropriated for a street. '' 
Likewise, a right of approach to an upper room or floor 
in a building was held to come to an end when the 
building was destroyed. ^^ So, in the case of the grant 

Mass. 97, 87 N. E. 205; Cotton India Wliarf, 123 Mass. 567. 
States Lumber Co. v. James, 98 12. W9is v. Meyer, 55 Ark. 18, 

Miss. 134, 53 So. 410; Bangs v. 17 S. W. 339. 

Parker, 71 Me. 458; Hall v. Arm- 13. Hancock v. Wentworth, 5 

strong, 53 Conn. 554, 4 Atl. 113; Mete. (Mass.) 446. See Brown v 

In Johnson v. Knapp, 150 Mass. Ore. Short Line R. Co., 36 Utah, 

267. 23 N. E. 40, it was held that, 257, 24 L. R. A. (N. S.) 86, 102 

even though a pipe was actually Pac. 740. 

used at the time of the sever- 14. Hahn v. Baker Lodge No. 

ance of ownership for the pur- 47, 21 Ore. 30, 13 L. R. A. 158, 28 

pose of conducting water, still. Am. St. Rep. 723, 27 Pac. 166; 

if the supply of water was de- Cotting v. Boston, 201 Mass. 97, 

pendent on the continuance of a 87 N. E. 205. 

license to take it from other land. In Shirley v. Crabb, 138 Ind. 

the easement which passed was 200, 46 Am. St. Rep. 376, 37 N. 

to endure only so long as it E. 130, the extinguishment of 

could be rightfully taken, that is. such an easement appears to be 

until the license was revoked. based on the destruction of the 

11. Mussey V. Union Wharf, 41 servient building, not the domi- 

Me. 34; Central Wharf & Wet nant, though both were as a matter 

Dock Corp. V. Proprietors of of fact destroyed. In Douglas v. 



^ 372] Easements. 1365 

of a right of way for a railroad, a reservation in favor 
of the owner of the land of the privilege of a crossing, 
by which to pass to other land belonging to him, was 
construed as giving such crossing so long only as the 
two pieces of land belonged to the same person.^^ In 
these various cases the easement, being one created by 
grant, came to an end, it is conceived, because it was 
intended, or presumed to be intended, to come to an 
end upon an event such as occurred, rather than as oc- 
casionally suggested, because the impossibility of the 
exercise of an easement, or the impossibility of its 
exercise for the same purpose as before, necessarily in- 
volves its extinguishment. That an easement may con- 
tinue to exist even though its exercise is temporarily 
impossible, is not open to question, and in the cases 
above referred to, the impossibility of its continued ex- 
ercise as before, while it threatened to be periiianent, 
might, in the event, have proven to be temporary 
merely. 

The destruction of a building on the dominant tene- 
ment will effect an extinguishment of the easement if 
the easement was intended to be exercised only in 
connection with that particular building,^" while it will 
not have that effect if it was intended to l)e exei'cised 
in connection with the land, independently of tlie ex- 
istence thereon of a building, or of some particular 

Coonley, 156 N. Y. 521, 51 N. E. 300. 

283, the easement was held to 16. Day v. Walden, 46 Mich. 

be suspended and revived. See 575, 10 N. W. 26; Blake v. Clark, 

P'M, this section, notes 16, 17, 19- 6 Me. 436. Compare Stevenson 

26a, 28, 29. v. Wallace, 27 Gratt. (Va.) 77. 

15. Knowlton v. New York, N. 17. Hottell v. Farmers' Pro- 

H. & H. R. Co., 72 Conn. 188, 44 tectivo Ass'n, 25 Colo. 67, 71 Am. 

Atl. 8; Marino v. Central R. Co., St. Rep. 109, 53 Pac. 327; Rey- 

69 N. J. L. 628, 56 Atl. 306; Van- nolds v. Union Savings Bank, ISo 

dalia R. Co. v. Furnas, 182 Ind. Iowa, 519, 49 L. R. A. (N. S.) 194, 

306, 106 N. E. 401. Compare j36 N. W. 529; Bangs v. Parker. 

Rathbun v. New York, N. H. & 71 Me. 458; Chew v. Chew. 39 N. 

H. R. Co., 20 R. I. GO, 37 Atl. J. Eq. 396; Hennen v. Deveny, 71 



1366 



Keal Propebty. 



[§ 372 



bnilding.^^ An easement of flowage for tlie benefit of 
a canal has been held to come to an end when the 
canal was abandoned. ^^ 

That an easement of a right of way, created by 
a grant thereof in express terms, w^as at the time of 
the grant necessary for the purpose of access to the 
dominant tenement, has not been regarded as a reason 
for holding the easement extinguished when the neces- 
sity ceases, ^^^ the rule thus differing from that which 
has been applied in connection with a right of way by 
necessity/*^ 

Party wall. The easement of using a wall, or a 



part thereof, belonging to another, as a party wall, has 
been regarded as ceasing upon the destruction, by fire or 
other accident, of the wall and of the buildings separated 
thereby,^^ and also upon such destiniction of the buildings, 
though the wall remains standing.^^^ In thus asserting 



W. Va. 629, L. R. A. 1917A, 524, 
77 S. E. 142. Accordingly it has 
been decided that an easement 
of light may continue in exist- 
ence although the building by 
which the light was availed of 
is destroyed. Tapling v. Jones, 11 
H. L. Cas. 290; Scott v. Pape, 31 
Ch. Div. 554; City Nat. Bank v. 
Van Meter, 59 N. J. Eq. 32, 45 
Atl. 280, 61 N. J. Eq. 674, 47 Atl. 
1131. 

18. Riefler v. Wayne Storage 
Water Power Co., 232 Pa. 282, 
81 Atl. 300. 

18a. Johnson v. Allen, 33 Ky. 
Law Rep. 621, 110 S. W. 851; 
Estep V. Hammons, 104 Ky. 144, 
46 S. W. 715, (semble) ; Atlanta 
Mills V. Mason, 120 Mass. 244; 
Perth Amboy Terra Cotta Co. \. 
Ryan, 68 N. J. L. 474, 53 Atl. 
699; Crounse v. Wemple, 29 N. 
Y. 540 (prescriptive way) ; Par- 



sons V. N. Y., X. H. & H. R. 
Co., 216 Mass. 269, 103 N. E. 693; 
Zell V. Universalist Soc, 119 Pa. 
390, 4 Am. St. Rep. 654, 13 Atl. 
447, Ebert v. Mishler, 234 Pa. 
609, 83 Atl. 596. 

18b. Post, this section, notes 
27-29. 

19. Sherred v. Cisco, 4 Sandf. 
(N. Y.) 480; Partridge v. Gilbert, 
15 N. Y. 601, 69 Am. Dec. 632; 
Antomarchi's Ex'r v. Russell, 63 
Ala. 356, 35 Am. Rep. 40; Dun- 
can, v. Rodecker, 90 Wis. 1, 62 
N. W. 533. See Huck v. Flentye, 
80 111. 258 (destruction of wall 
and single building supported 
thereby). 

20. Moore v. .Shoemakery 10 
App. D. C. 6; Dowling v. Hen- 
nings, 20 Md. 179, 83 Am. Dec. 
545; Hoffman v. Kuhn, 57 Miss. 
746, 34 Am. Rep. 491; Bowhay 
V. Richards, 81 Neb. 764, 19 L. 



<§ 372] Easements. 1367 

that a party wall easement ceases on the destruction 
of the buildings, the courts appear to consider that 
there is a rule of law to that effect, necessitated by the 
consideration of the burden involved in compelling an 
owner to reconstruct his wall or building in such a 
way as to afford his neighbor the same easement as he 
had before. The rule is, however, it is submitted, in 
the case of the grant or reservation of a party wall 
easement, properly a rule of construction rather than 
of law,^^ since it could be excluded by an expression of 
intention that the easement shall continue in spite of 
the destruction of the buildings.^- It might, however, 
in the case of such an easement, when created by pre- 
scription, it seems, be regarded as a rule of law. 

In one case,-''^^ it was decided that while ordinarily 
the destruction of a party wall and the buildings on 
both sides thereof would extinguish the party wall ease- 
ments, and also the easement of a right to use a stair- 
case in one building for purposes of access to the 
other, this was not so when the wall and staircase were 
inunediately rebuilt in exactly the same location as 
before, it being said that "this conduct of the parties 
operated to revive the easement that was suspended 
by the destruction of the property." There is, in an- 
other state, a decision to the contrary effect,^'^ and it is 

R. A. (N. S.) 883, 116 N. W. 677. being a case of express grant. 

Heartt v. Kruger, 121 N. Y. 386, It does not seem that this con- 

9 L. R. A. 135, 18 Am. St. Rep. stitutes a substantial basis o£ 

829, 24 N. E. 841; Odd Fellows' distinction. 

Hall Ass'n of Portland v. Hegele, 21. See Moore v. Shoemaker, 

24 Ore. 16, 32 Pac. 679. 10 App. D. C. 6. 

In Heartt v. Kruger, 121 N. Y. 22. As in F'risbie v. Bigham 

386, 9 L. R. A. 135, 18 Am. St. Masonic Lodge No. 256, 133 Ky. 

Rep. 829, 24 N. E. 841 supra. 588, 118 S. W. 359. 

the court emphasizes the fact 23-24. Douglas v. Coonley, 15t; 

that the easement was created N. Y. 521, 66 Am. St. Rep. 580, 

by "implied grant" as correspond- 51 N. E. 283. 

ing to a preexisting gwa.si-ease- 25. Bonney v. Greenwood, 96 

ment, distinguishing Brondage v. Me. 335, 52 Atl. 786. 
Warner, 2 Hill (N. Y.) 145, as 



1368 Real Property. [§ 372 

somewhat difficult to see how, if the destniction of the 
buildings is otherwise sufficient to extinguish the ease- 
ment, this can be avoided by the subsequent adoption 
of a particular plan of rebuilding. The decision might 
perhaps be supported on the theory that the grant was 
of an easement to endure so long as the land was util- 
ized for buildings similar to the buildings originally 
existing thereon. The court quotes from a text book 
on the civil law to the effect that while "servitudes 
cease when the things are found in such condition that 
one can no longer use them," they "revive if the things 
are reestablished in such a manner that one can use 
them." But whatever the civil law doctrine in this 
regard may be, the existence of an easement, by the 
law of this country and of England, is not af- 
fected by the temporary impossibility of its exer- 
cise. In the case, for instance, of a right to conduct 
water over another's land, an injury to the aqueduct 
which makes it impossible, for the time being, to exer- 
cise the easement, in no way affects the existence of 
the easement. And the repair of the aqueduct con- 
sequently does not revive the easement, though it re- 
vives the possibility of its exercise. 

The destruction of one of the buildings separated 
by a party wall has been held not to extinguish the 
easement in the wall in favor of the other building,-'' 
and such a \iew is particularly suggested when the 
right of support is created by implied grant by way 
of necessity, the necessity enduring so long as the build- 
ing supported endures.^*'-'^ 

Way of necessity. A way of necessity has 

been regarded as coming to an end when the necessity 
ceases, as, for instance, when a highway is opened 

26. Lexington Lodge v. Beal, (N. S.) 1021, 134 Pac. 614. 

94 Miss. 521, 49 So. 833; Com- 26a. See editorial note, 13 Col- 

mercial Kzt. Bank of Ogden v. umbia Law Rev. 754. 
Eccles, 43Utah, 91, 46 L. R. A. 



§ 372] Easements. 1369 

through the dominant tenement, or the owner thereof 
acquires another right of way.-' As the intention to 
create the way is inferred from the necessity of the 
way, the extent of the inference is limited by the same 
consideration. The acquisition of another right of way, 
however, is not sufficient to exting-uish the w^ay of 
necessity, unless the new right of way is reasonably 
sufficient for the enjoyment of the dominant tenement.^'" 

Change in servient tenement. Occasionally an 

easement is created in such terms, or under such circum- 
stances, as to indicate that the easement is to endure so 
long only as a structure on the servient tenement, in 
connection ^yith. which the easement is to be exercised, 
endures or is capable of use.^^ In such case the ease- 
ment comes to an end when the structure is destroyed 
or becomes incapable of use. A somewhat similar case 
is presented by a decision that when, by reason of 
the condemnation of part of the servient tenement for' 
the purpose of a railroad right of way, the exercise 

27. Carey v. Rae, 58 Cal. 159; Proctor v. Hodgson, 10 Exch. 824. 

Cassin v. Cole, 153 Cal 677, 96 27a. Hart v. Deering, 222 

Pac. 277; CoUins v. Prentice, 15 Mass. 407, 111 X. E. 37 

Conn. 39, 38 Am. Dec. 61; Russell That one having a way of 

V. Napier, 82 Ga. 770, 9 S. E. necessity is given a mere revoc- 

746; Oswald v. Wolf, 129 111. 200, able permission to pass to his 

21 N. E. 839. Whitehouse v. Cum- land over other land has been 

mings, 83 .Me. 91, 23 Am. St. Rep. held not to involve a termination 

756, 21 Atl. 743; Oliver v. Hook, of the necessity, so as to extin- 

46 Md. 301; Haserick v. Boulia- guish the right of way. Sweezy 

Gorell Co., 77 N. H. 121, 88 Atl. v. Vallette, 37 R. I. 51, 90 Atl. 

998; Palmer v. Palmer, 150 N. 1078. 

Y. 139, 55 Am. St. Rep. 653, 44 N. 28. Linthicum v. Ray, 9 Wall. 

E. 966. But see Conley v. Fair- 241, 19 L. Ed. 657; Shirley v. 

child, 142 Ky. 271, 134 S. W. 142, Crabb, 138 Ind. 200, 46 Am. St. 

properly criticized, it is submitted. Rep. 376, 37 N. E. 130; Ballard v. 

in 11 Columhia Law Rgv. 478. Butler, 30 Me. 94. Central Wharf 

The English case of Holmes v. v. India Wharf, 123 Mass. 567; 

Goring, 2 Bing, 76, accords with Bartlett v. Peaselee, 20 N. H. 547, 

the view generally adopted in 51 Am. Dec. 242; Percival v. Wil- 

this country, but it is questioned Hams, 82 Vt. 531, 74 Atl. 321. 
by Parke & Aldersou, B. B., in 



1370 Re.a.l Peoperty. [^ 373 

of a preexisting private right of way became impossible 
of exercise, it was extinguished.^^ 

§ 373. Excessive user of land. The fact that the 
owner of the easement makes a use of the servient tene- 
ment not justified by the character or extent of the ease- 
ment does not involve the extinguishment or suspension 
of the easement, although in making such use he is a 
w^rongdoer.''^ Equity will, in such case, ordinarily en- 
join such an illegal exercise of the easement, without 
interfering with the proper exercise except in so far 
as this may be necessary to protect the landowner. 

As before stated,^ ^ the fact that, subsequently to 
the grant of the easement, there is a change in the mode 
in which the dominant tenement is utilized, so that 
there results a more constant use of the servient tene- 
ment in the exercise of the easement, has not ordinarily 
been regarded as involving an excessive user of the 
easement. That is, the grant of the easement is re- 
garded prima facie as not being intended to continue 
in force only so long as the mode of utilizing the 
dominant tenement continues unchanged. It might oc- 
cur, however, that by a reason of a very radical change 
in the dominant tenement, it becomes impossible to 
exercise the easement without an excessive user of the 
servient tenement, and the making of such change 
might, under some circumstances, be regarded as in- 
vohdng an extinction of the easement by abandon- 
ment.^ ^^ 

29. Cornell Andrews Smelting vitt v. Washington County, 75 Vt. 
Co. V. Boston & P. R. Corp., 202 156, 53 Atl. 563. See McMiUian v. 
Mass. 585, 89 N. E. 118. Cronin, 75 N. Y. 474; editorial 

30. Mendell v. Delano, 7 Mete. note 18 Harv. Law Rev. 608. 
(Mass.) 176; McTavish v. Carroll, 31. Ante, § 369. 

13 Md. 429. White's Bank v. 31a. Goddard, Easements (6th 

NichoUs, 64 N. Y. 65; Walker v. Ed.) 547; Gale, Easements (8th 
Gerhard, 9 Phila. (Pa.) 116. Dea- Ed.) 521, 528. 



-^ 374] Easements. 1371 

§ 374. Unity of possession or title. An easement 
is ordinarily extinguished if one person acquires an 
estate in fee simple in possession in both the dominant 
and servient tenements.'^^ J3y reason of the perpetual 
right of possession of the tenement which was pre- 
viously subject to the easement, such person and his 
heirs can make any use whatsoever thereof, and the 
inferior right of easement, its utility having thus dis- 
appeared, is swallowed up in the superior right of pos- 
session. 

Wlien one person acquires estates in possession 
in both the dominant and servient tenements, but they 
are such in character that one mil or may terminate 
before the other, the utility of the easement, though in 
abeyance for the time being, is liable to revive by reason 
of the termination of one of such estates, and conse- 
quently there is no reason for regarding it as extin- 
guished. So the easement is not extinguished by rea- 
son of the fact that one has an estate in fee simple in 
one tenement and an estate for life or for years in the 
other.^3 But though the estates are of unequal duration, 
the easement should, it would seem, be regarded as ex- 
tinguished if it cannot possibly endure after the less 
estate comes to an end, as when an easement is created 

32. Smith v. Roath, 238 111. 247, ment of a right of way by reason 

128 Am. St. Rep. 123, 87 N. E. of the acquisition, by the owner 

414; Warren v. Blake, 54 Me. 276, of the dominant tenement, of the 

89 Am. Dec. 748; Capron V. Green- fee simple in the servient tene- 
way, 74 Md. 289, 22 Atl. 269; ment, if there is a like right of 
Ritger v. Parker, 8 Cush. (Mass.) way outstanding in another. This 

145, 54 Am. Dec. 744; Atwater is, it is submitted, most question- 
V. Bodfish, 11 Gray (Mass.) 150 able. 

Rogers v. Powers, 204 Mass. 257, 33. Thomas v. Thomas, 2 

90 N. E. 514; Kieffer v. Imhoff, Cromp. M. & R. 34; Dority v. 
1'6 Pa. 438; Plimpton v. Converse, Dunning, 78 Me. 381, 6 Atl. 6; 
42 Vt. 712. Bull, Petitioner, 15 R. I. 534, 10 

In Tuttle V. Kilroa, 177 Mass. Atl. 484; Pearce v. McClenaghan, 

146, 58 N. E. 682, there is ap- 5 Rich. Law (S. Car.) 178, 55 Am. 
parently a dictum that there is Dec. 710. 

no extinguishment of the ease- 



1372 Eeal Property. [^ 374 

in favor of a life tenant of land for his life, and subse- 
quently he acquires a fee simple estate in the servient 
tenement, or the fee simple tenant of the servient tene- 
ment acquires his life estate in the dominant tenement. 

It has been decided that the estates are not of equal 
duration for the purpose of causing an extinguishment 
of the easement, when one is a fee simple and the other 
a fee determinable.^* And the same principle appears 
to be involved in decisions that the easement is not 
extinguished because the legal title to both the domin- 
ant and servient tenements is vested in one person as 
mortgagee, under distinct mortgages falling due at 
different times,^^ nor because an estate in fee simple in 
both tenements is vested in a single person, if one of 
these titles is wrongful, and therefore subject to defeas- 
ance.^^ 

As above indicated, the extinguishment of the ease- 
ment by one's acquisition of estates in both the dominant 
and servient tenements appears to be by reason of the 
unity of possession operating to render the easement 
useless, and so in the earlier authorities the unity of 
possession is referred to as the important consideration, 
without any reference to the question of the necessity 
of unity of seisin."^^ It has been said, however, that 
unity of possession is insufficient to effect an extinguish- 
ment unless there is also unity of seisin,-^^ w^ithout any 
explanation being given of why unity of seisin should 
bo regarded as necessary. Suppose A having an estate 
in Whiteacre for ten years only creates in favor of B 

34. Rex V. Inhabitants of Her- 166; Peers v. Lucy, 4 Mod. 364; 
mitage, Cathew. 339. Rex v. Inhabitants of Hermitage. 

35. Ritger v. Parker, 8 Cush. Carthew. 239; Whalley v. Thomp- 
(Mass.) 145, 54 Am. Dec. 744. See son, 1 Bos. & P. 371. 

Co. Litt., 313b. 38. Thomas v. Thomas, 2 

36. Tyler v. Hammond, 11 Cromp. M. & R., per Alderson, 
Pick. (Mass.) 193; Co. Lilt. 313b. B.; editorial note, 21 Harv. Law 

37. Bro. Abr. Extinguishment, Rev. at p. 359; 11 Halsbury's 
pi. 15; Jenkins' Centuries, p. 20, Laws of England, 283. 

case 37; Sury v. Pigot, Poph. 



<^x 374] Easements. 1373 

an easement in Wliiteacre to the extent of his ability, 
that is, for the balance of the ten years, and subse- 
quently B acquires A's estate for the balance of the 
ten years. B then has an estate, with the right of 
possession for so long as the easement can endure, and 
the same reason would seem to exist for regarding the 
easement as exting-uished as if he had acquired also the 
estate in fee simple in Wliiteacre. 

Xot only has it been said that unity of possession 
without unity of seisin is insufficient to extinguish the 
easement, but it has even been said that unity of seisin 
without unity of possession is sufficient for this pur- 
pose.^'' According to this view, if one who has an estate 
in fee simple in the dominant tenement makes a lease 
for years and subsequently transfers his reversion to 
the owner of the servient tenement, he thereby effects 
an exting-uishment of the easement not only as against 
himself but also as against his lessee.-^^*^ A rule which 
thus operates to put property rights of one person at 
the mercy of others is to be accepted with same hesita- 
tion, in the absence of an overwhelming weight of 
authority in its favor. It is difficult indeed to under- 
stand why the highly artificial concei)tion of seisin, as 
distinguished from possession, should be introduced in 
this connection. As above indicated, the earlier authori- 
ties, to whom the conception of seisin was most familiar, 
refer to unity of possession, as the decisive considera- 
tion without mention of unity of seisin. 

In order that unity of possession may extinguish the 
easement, the person in whom the union occurs must 

39. Buckby v. Coles, 5 Taunt. ihe easement of light. The deci- 

211. sion appears, however, to be 

39a. That the owner of the based on the terms of the Pre- 
dominant tenement cannot thus scription Act in reference to the 
effect the extinguishment of the easement of light, rather than 
easement as against his lessee is upon general principles appli- 
decided in Richardson v. Graham, cable to all easements. 
1 K. B. (1908) 439, as regards 
2 R. P.— 12 



1374 Eeal Property. [§ 375 

have an estate in severalty in each tenement/^ If he 
has 'merely a fractional interest in the dominant tene- 
ment, his co-owners are entitled to the easement irre- 
spective of whether his share and the servient tenement 
become united in ownership,"*^ while if he has merely a 
fractional interest in the servient tenement, his joint 
right to the possession of such tenement gives him no 
right to utilize any part thereof for his own exclusive 
benefit, and consequently the utility of the easement con- 
tinues as before.^- Moreover, it seems, the estates which 
are thus united in one person must both be beneficial in 
character, that is, one must not be a bare legal estate and 
the other equitable in character.^^ 

§ 375. Application of land to public use. The 
question whether the establishment of a highway has 
the effect of extinguishing" a pre-existent private right 
of way along the same line becomes of importance in 
case the highway is subsequently discontinued.^* That 
the concurrent existence of a highway and of a private 

40. Cheda v. Bodkin, 173 Cal. 43. See Ecclesiastical Com'rs 
7. 158 Pac. 1025; Smith v. Roath. for England v. Kino, 14 Ch. Div. 
238 111. 247, 87 N. E. 414; Reed 213; Pearce v. McClenaghan, 5 
V. West, 16 Gray (Mass.) 283; Rich. Law (S. C.) 178, 55 Am. 
Atlanta Mills v. Mason, 120 Mass. Dec. 710. 

244; Dority v. Dunning, 78 Me. 44. The question is referred to 

381, 6 Atl. 6 {dictum); Blanchard in Dodge v. Pennsylvania R. Co., 

V. Maxson, 84 Conn. 429, 80 Atl. 43 N. J. Eq. 351, but the cases 

206. in other states there referred to 

41. See Tuttle v. Kilroa, 177 as adjudications on the question 
Mass. 146, 58 N. E. 682. appear to be but partially ap- 

42. But there is perhaps a plicable. In Murphy v. Bates, 21 
partial extinguishment, that is, R. I. 89, 41 Atl. 1011, it is said 
an extinguishment as regards his that "ordinarily a private way 
interest in the easement, preclud- becomes merged in a public way," 
ing him, or any one claiming but the authorities cited (Ross 
under him, from thereafter ex- v. Thompson, 78 Ind. 90; Elliott, 
ercising the easement. tSee Bar- Roads & Streets, §§ 3 & 4) do not 
linger v. Virginia Trust Co., 132 support the statement. 

N. C. 409. 43 S. E. 910. 



^ 375] Easements. 1375 

way along the same line is not impossible appears to 
be fully recognized in the decisions, before referred 
to, that the grant of land as abutting on a highway 
gives in effect a private right of way upon the discon- 
tinuance of the highway,-'-^ and it is difficult to see why 
the establishment of a highway should in itself extin- 
guish the private right, though it renders the assertion 
of such right at least temporarily unnecessary.^*^ 

If the owner of the right of way joins with the 
o\\Tier of the servient tenement in dedicating the land 
to such public use, the dedication is obviously binding 
on him,^^ but it would seem that, as upon the cessation 
of the public use the owner of the land has the same 
rights as before the dedication, so the owner of the 
easement has such rights. If the latter does not join 
in the dedication he is not, in theory, affected there- 
by,^* but whether the transformation of the private 
right of way into a public one could be regarded as 
an impairment of his rights capable of legal remedy 
would seem to be doubtful, in the absence at least of 
language in the grant of the right of way making it 
more or less exclusive.^^ 

In case the highway is established by legal proceed- 
ings in which the owTier of the right of way appears as 
a petitioner, the right may well be regarded as aban- 
doned by him,^*^ In case he is not a petitioner but is 
a party to the proceedings, his right would seem to be 
extinguished to the same extent as that of the owner of 
the land, that is, only during the continuance of tlie 

45. Ante, § 366a, note 35. And 1 Man. & Gr. 484; Duncan v. 
see Isaac G. Johnson & Co. v. Louch, 6 Q. B. 904; R. v. Chorley, 
Cox, 196 N. Y. 110, 89 N. E. 454. 12 Q. B. 515. 

46. The English cases are 47. Bailey v. Culver, 84 Mo. 
dearly to the effect that the es- 531. 

tablishment of a highway over 48. Sarcoxie v. Wild, 64 Mo 

the line of a private way does App. 403. See Post, § 481. 

not, of itself, affect the existence 49. See ante, 367, note 78. 

of the latter. Allen v. Ormond, 8 50. McKinney v. Pennsylvania 

Bast. 4; Brownlow v. Tomlinson, R. Co., 222 Pa. 48, 70 Atl. 946. 



1376 Real Peopebty. [<§, 376 

public user, with a revival of i]ie right upon its dis- 
continuance,^^ unless the puhiic acquired the fee by 
the condemnation proceeding.''- If he is not a party to 
the proceeding, his right of way cannot be regarded as 
extinguished, so as to be incapable of assertion after 
the discontinuance of the highway, ""^ though he is, it 
appears, to be regarded as concluded by the pro- 
ceeding, on the theory that he is not damnified by the 
establishment of the highway.^'* 

When the servient tenement is condemned for a 
railroad right of way, and the owner of the easement is 
made a party to the proceeding, the easement is ex- 
tinguished, if the railroad acquires the fee,"'^ while if 
the railroad acquires merely the easement of a right 
of way, it does not seem that the private easement is 
extinguished, though its exercise is for the time being 
rendered impossible. If the owner of the easement is 
not a party to the proceeding, his easement, it seems, 
is not affected thereby.^^ 

§ 376. Express release. An easement may be ex- 
tinguished by an express release thereof made by the 
owner of the dominant tenement in favor of the owner 
of the servient tenement,^^ and such an express re- 

51. Post, § 565. 57. Goddard, Easements, 575; 

52. Post. § 561. Gale, Easements, 512. Jersey 

53. Clayton v. County Court, Farm Co. v. Atlanta Realty Co., 
58 W. Va. 253, 2 L. R. A. N. S. 164 Cal. 412, 129 Pac. 593; Rich- 
598, 52 S. E. 103. ards v. Attleborough Branch R. 

54. Allea v. City of Chicago, Co., 153 Mass. 120, 26 N. E. 418; 
176 111 113, 52 N. E. 33 ; Clayton Flaten v. Moorehead City, 58 Minn. 
V. County Court, 58 W. Va. 253, 324, 59 N. W. 1044; McAllister 
2 L. R. A. N. S. 598, 52 S. E. v. Deoane, 76 N. C. 57. 

103. Somewhat analagous to the 

55. Googins v. Boston, & A. case of an express release is a 
R. Co., 155 Mass 505, 30 N. E. case in which it was held that one 
71; Currie v. Bangor, & A. R. who made a conveyance of land 
Co., 105 Me. 529, 75 Atl. 51. with a covenant of warranty 

56. Lewis, Eminent Domain, § therein was estopped, upon sub- 
531, note 21. sequently acquiring adjoining 



§ 377] 



Easements. 



1377 



lease must, at common law, like any other release, be 
under seal.^^ Under the doctrine of abandonment of 
an easement,'"'^ however, as recognized in the modern 
decisions, it seems that even an oral relinquishment 
of the easement might be effective. 

One w^ho has only a partial or limited interest in 
the dominant tenement can obviously extinguish the 
easement by release only as against himself.*^" 

§ 377. Abandonment. There are many cases to tlie 
effect that an easement is extinguished by ''abandon- 
ment" thereof, by which is meant that a nonuser 
thereof, together with other circumstances, may, as 
showing an intention to make no further use of it, 
terminate the easement.^ ^ The question whether there 
has been such an abandonment is in each case a ques- 



land, to assert that there was 
appurtenant to this latter land 
an easement upon the land first 
conveyed. Hodges v. Goodspeed, 
20 R. I. 537, 40 Atl. 373. 

58. Co. Litt. 264b; Gale, Ease- 
ments, 482; Pue v. Pue, 4 Md. 
Ch. 386. That it must be in 
writing, see Erb v. Brown, 69 
Pa. 216. 

59. Post, § 377. 

60. Dyer v. Sanford, 9 Mete. 
(Mass.) 395, 43 Am. Dec. 399. 
Glenn v. Davis, 35 Md. 208, 6 
Am. Rep. 389; "Welsh v. Taylor, 
134 N. Y. 450, 18 L. R. A. 535, 31 
N. E. 896; Robert v. Thompson, 
16 N. Y. Misc. 638, 40 N. Y. Supp. 
754. 

61. Moore v. Rawson, 3 Barn. 
& C. 332; Stein v. Dahm, 96 Ala. 
481, 11 So. 597; Arnold v. Roup, 
61 Colo. 316, 157 Pac. 206; New 
York, N. H. & H. R. Co. v. Cella, 
88 Conn. 515, 91 Atl. 972; Louis- 



ville & N. R. Co. V. Covington, 
2 Bush (Ky.) 526; Fitzpatrick v. 
Boston, & M. R. R., 84 Me. 33, 24 
Atl. 432; Stewart v. May, 119 Md. 
10, 85 Atl. 957; Canny v Andrews, 
123 Mass. 155; King v. Murphy, 
140 Mass. 254, 4 N. E. 566. Jones 
V. Van Bochove, 103 Mich. 98, 
61 N. E. 342; Snell v. Levitt, 110 
N. Y. 595, 1 L. R. A. 414, 18 
X. E. 370; Welsh v. Taylor, 134 
N. Y. 450, 18 L. R. A. 535, 31 
X. E. 896; Willey v. Xorfolk 
Southern R. Co., 96 N. C. 408; 
Faulkner v. Rocket, 33 R. I. 152, 
80 Atl. 380; Taylor v. Hampton, 
4 McCord (S. C.) 96, 17 Am. Dec. 
710; JMonaghan v. Memphis Fair 
& Exposition Co., 95 Tenn. 108, 
31 S. W. 497. Brown v. Oregon 
Short Line R. Co., 36 Utah, 257, 
24 L. R. A. (N. S.) 86, 102 Pac. 
740; Philips v. Coumbe, 90 Wash. 
543, 156 Pac, 535; Stenz v. Ma- 
honey, 114 Wis. 117, 89 N. W. 819. 



1378 



Real Property. 



[^ 377 



tion of fact.''^ And it must be established, it has been 
said, by "evidence clear and unequivocal of acts de- 
cisive and conclusive.""^ Even the fact that the owner 
of the dominant tenement erects or alters a structure 
in such a way as to render the exercise of the ease- 
ment for the time difficult or impossible does not neces- 
sarily involve an abandonment of the easement.^* 

It has been stated, with more or less explicit- 
ness, that the underlying theory of the abandonment 
of an easement is that of the inference or implication, 
from the circumstances of the case, of an express re- 
lease of the easement,*^^ but such a theory does not 



62. Smith v. Worn, 93 Cal. 206, 
28 Pac. 944; Holmes v. Jones, 
80 Ga. 659, 7 S. E. 168; Vogler 
V. Geiss, 51 M'd. 407; King v. 
Murphy, 140 Mass. 254, 4 N. E. 
566. Willets v. Langhaar, 212 
Mass. 573, 99 N. E. 466; Leach 
V. Philadelphia, H. & P. R. Co., 
258 Pa. 522, 102 Atl. 175; Poison 
V. Ingraham, 22 S. C. 541; South- 
ern Ry.-Carolina Division, v. How- 
ell, 89 S. C. 391, Ann. Cas. 1913A, 
1070, 71 S. E. 972; Cook v. Bath 
Corporation, L. R. 6 Eq. 177. 

63. Adams v. Hodgtkins, 109 
Me. 361, 42 L. R. A. (N. S ) 741, 
84 Atl. 530. And for state- 
ments of a more or less similar 
character, see Dyer v. Sanford, 9 
Mete. (Mass.) 395, 43 Am. Dec. 
306; Eddy v. Chace, 140 Mass. 
471, 5 N. E. 306; Lagorio v. Lew- 
enberg, 226 Mass. 464, 115 N. E. 
979; Hennessy v. Murdock, 137 
N. Y. 317, 33 N. E. 330; Vogler 
V. Geiss, 51 M'd. 407; Raritan 
Water Power v. Veghte, 21 N. J. 
Eq 463.; Daniel v. Doughty, 120 
Va. 853, 92 S. E. 848. 

64. Brunthaver v. Talty, 31 
App. Dist. Col. 134; Hay ward v. 



Spokesfield, 100 Mass. 491. Vin- 
ton V. Greene. 158 Mass. 426, 33 
N. E. 607; Faulkner v. Duff, 14 
Ky. L. Rep. 227, 20 S. W. 227; 
McKee v. Perchment, 69 Pa. 342. 
Compare Taylor v. Hampton, 4 
McCord (S. Car.) 96, 17 Am. Dec. 
710; Tuttle v. Sowadzki, 41 Utah, 
501, 126 Pac. 959. 

As to the question of the aband- 
onment of an easement of light, 
see Salem City Nat. Bank v. Van 
Meter, 59 N. J. Eq. 32, 45 Atl. 
280, 61 N. J. Eq. 674, 47 Atl. 
1131; Johnson v. Hahne, 61 N. 
J. Eq. 438, 49 Atl. 5; Fowler v. 
Wick, 74 N. J. Eq. 603, 70 Atl. 
682, and the many English cases 
cited in Gale, Easements, and 
Goddard, Easements. 

65. See Norbury v. Meade, 3 
Bligh. 242; Lovell v. Smith, 3 C. 
B. N. S. 120, 127; Doe d. Put- 
land V. Hilder, 2 Barn. & Aid. 
782; Winham v. McGuire, 51 Ga. 
578; Adams v. Hodgkins, 109 Me. 
361, 42 L. R. A. (N. S.) 741, 84 
Atl. 530; Brown v. Trustees of 
Methodist Episcopal Church, 37 
Md. 108; Suydam v. Dunton, 84 
Hun (N. Y.) 506, 32 N. Y. Supp. 



§ 377] Easements. 1379 

appear to have had any practical result on the course 
of decision. Occasionally, it has been stated that an 
indication of intention to abandon the easement is not 
effective to extinguish the easement unless the owner 
of the servient tenement is induced thereby to make 
expenditures or othersvise to alter his position, thus 
in effect making the question of abandonment a ques- 
tion of estoppel.^*' But this is evidently not in accord 
with the great weight of authority. The fact, how- 
ever, that the person asserting the abandonment was 
induced, by the course of action of the owner of 
the easement, to assume that there was an intention 
to abandon the easement, and to make improvements 
on the strength of this assumption, would presumably 
operate in favor of a finding of abandonment, or as 
it might otherwise be expressed, the owner of the 
easement might, in such case, be regarded as estopped 
to assert the easement.*'^'^ 

Xonuser in itself does not terminate an easement 
acquired by grant,*'" and, as above stated, it is at most 
merely one of the facts from which an abandonment 
may be inferred. The fact that the nonuser continues 

333; 3 Kent, Coram. 448; God- Y. 148, 116 N. E. 862. And Poxt, § 

dard, Easements, 555. The whole 378. 

theory of extinguishment of ease- 67. Moore v. Rawson, 3 Barn, 

ments by abandonment is severely & c. 332; Smith v. Worn, 93 Cal. 

criticized in 11 Columbia Law 206, 28 Pac. 994; Petitpierre v. 

Rev. at p. 777. Maguire, 155 Cal. 242, 100 Pac. 

66. See Smith v. Worn, 93 Cal. 690; Dewire v. Hanley, 79 Conn. 

206, 28 Pac. 944; Vance v. Adams 454, 65 Atl. 573; Ford v. Harris, 

(Ky.) 112 S. W. 927; Day v. 95 Ga. 97, 22 S. E. 144; Hoffthen 

Walden, 46 Mich. 575, 10 N. W. v. Mede, 226 111. 320, 80 N. E. 

26; Scott V. Moore, 98 Va. 668, 893; Edgerton v. McMuUan, 55 

81 Am. St. Rep. 749, 37 S. E. Kan. 90, 39 Pac. 1021; Adams v. 

?42. Hodgkins, 109 Me. 361, 42 L. R. A. 

66a. See Trimble v. King, 131 (N. S.) 741, 84 Atl. 530; Dana v. 

Ky. 1, 22 L. R. A. (N. S.) 880, 114 Valentine, 2 Allen (Mass.) 128; 

S. W. 317; Patterson v. Chambers' Hayford v. Spokesfield, 100 Mass. 

Power Co., 81 Ore. 328, 159 Pac. 491; Butterfield v. Reed, 160 

568; Andrews v. Cohen, 221 N. Mass. 361, 35 N. E. 1128; Murphy 



1380 



Eeal Propeety. 



[§ 377 



for the prescriptive period is immaterial,"''^ in the 
absence of any aaverse acts on the part of the owner 
of the land."''' 

There are dicta to the effect that an easement ac- 
quired by prescription, as distinguished from one ac- 
quired by express grant, may he extinguished by non- 
user alone,''^ though in but one case, apparently,'^ is 
lliere a direct decision to this effect, and such a distinc- 
tion has been doubted, apparently with good reason.'^ 



Chair Co. v. American Radiator 
Co., 172 Mich. 14, 137 N. W. 791; 
Dulce Realty Co. v. Staed Realty 
Co., 254 Mo. 417, 151 S. W. 415; 
Dill V. Board of Education of City 
of Camden, 47 N. J. Eq. 421, 10 
L. R. A. 276, 20 Atl. 739; Welsh 
V. Taylor, 134 N. Y. 450, 18 L. R. 
A. 535, 31 N. E. 896; Willey v. 
Norfolk S. R. Co., 96 N. C. 408, 1 S. 
E. 446; Hoffman v. Dorris, 83 Ore. 
625, 163 Pac. 972; Bombaugh v. 
Miller, 82 Pa. St. 203; Sweezy v. 
Vallette, 37 R. I. 51, 90 Atl. 1078; 
Boyd V. Hunt, 102 Tenn. 495, 52 
S. W. 131; Scott V. Moore, 98 Va. 
668, 81 Am. St. Rep. 749, 37 S. E. 
342; McCue v. Bellingham Bay 
Water Co., 5 Wash. 156, 31 Pac. 
461. 

68. Ward v. Ward, 7 Exch. 
838; Nichols v. Peck, 70 Conn. 
439, 40 L. R. A. 81, 66 Am. St. 
Rep. 122, 39 Atl. 803; Ford v. 
Harris, 95 Ga. 97, 22 S. E. 144; 
Edgerton v. MoMullan, 55 Kan. 
90, 39 Pac. 1021; Pratt v. Sweet- 
ser, 68 Me. 344; King v. Murphy, 
140 Mass. 254, 4 N. E. 566; Butter- 
field V. Reed, 160 Mass. 361, 35 
N. E. 1128; Day v. Walden, 46 
Mich. 575, 10 N. W. 26; Wheeler 
V. Wilder, 61 N. H. 2; Welsh v. 



Taylor, 134 N. Y. 450, 18 L. R. A. 
535, 31 N. E. 896; Lindeman v. 
Lindsey, 69 Pa. St. 93, 8 Am. Rep. 
219; Mason v. Horton, 67 Vt. 266, 
48 Am. St. Rep. 817, 31 Atl. 291. 

But non user for the prescrip- 
tive period has occasionally been 
regarded as creating a rebuttable 
presumption of intention to aban- 
don. Pratt V. Sweetser, 68 Me. 
344; Dyer v. Dupui, 5 Whart. 
(Pa.) 584; Hunter v. West, 172 
N. C. 160, 90 S. E. 130. See Reg 
V. Chorley, 12 Q. B. 515; 11 Hals- 
bury's Laws of England, 278; 
Goddard, Basements (6th Ed.), 
560. 

69. Kuecken v. Voltz, 110 111. 
264; Adams v. Hodgkins, 109 Me. 
361, 84 Atl. 530; Wooster v. Fiske, 
115 Me. 161, 98 Atl. 378. Browne 
V. Baltimore M. E. Church, 37 
Md. 108; Arnold v. Stevens, 24 
Pick. (Mass.) 106, 35 Am. Dec. 
305; iHayford v. Spokesfield, 100 
Mass. 491; Smyles v. Hastings, 22 
N. Y. 217; Pope v. O'Hara, 48 
N. Y. 446; Nitzell v. Paschall, 3 
Rawle (Pa.) 76. See Curran v. 
City of Louisville, 83 Ky. 628; 
Wiilley V. Norfolk R. Co., 96 N. 
C. 408, 1 S. E. 446. 



§ 378] Easements. 1381 

In a few states this asserted distinction has been in 
effect embodied in a statutory provision that a servitude 
acquired by enjoyment may be extinguished by disuse 
thereof for the period prescribed for acquiring title 
by enjoyment.'^ 

According to a few decisions, an easement cannot 
be extinguished by abandonment, unless there has been 
a failure to use the easement for a period equal to 
that necessary for the creation of an easement by 
prescription,"^ but this view has not been generally 
adopted J* 

§ 378. Executed license. It has been decided that 
if one who has an easement in another's land gives a 
license to the 0"s\Tier of the servient tenement to do 
something thereon, the effect of which is to obstruct the 
exercise of the easement, and the licensee, on the 
faith of the license, makes expenditures for improve- 
ments obstructive of the easement, the easement is 
extinguished.'^ Accordingly, if one entitled to an ease- 

70. Rhodes v, Whitehead, 27 811; Montana Codes 1907, § 4517; 
Tex. 304, 84 Am. Dec. 631. North Dakota, Comp. Laws 1913, 

71. See Veghte v. Raritan § 5340. Oklahoma Rev. Laws 1910, 
Water Power Co., 19 N. J. Eq. § 6633; South Dakota Civ. Code, 
142. Pratt v. Sweetser, 68 Me. § 277. 

344; Angell, Water Courses (7th 73. Cox v. Forrest, 60 Md. 74; 
Ed.) § 252, note; 3 Kent, Comm. Wilder v. City of St. Paul, 12 
450, note by Mr. Justice Holmes. .Minn. 192; Corning v. Gould, 16 
The distinction is not recognized Wend. (N. Y.) 531. 
in England. See Gale, Ease- 74. See Reg v. Chorley, 12 Q. 
ments, 527. In Hale v. Oldroyd, B. 515; Moore v. Rawson, 3 Barn. 
14 Mees. & W. 789; Ward v. Ward, & C 332; Louisville, & N. R. Co., 
7 Exch. 838; Lovell v. Smith, 3 v. Covington, 2 Bush (Ky.) 526; 
C. B. (N. S.) 120,— all cases of Fitzpatrick y. Boston, & M. R. 
prescriptive easements, — nonuser R., 84 Me. 33, 24 Atl. 432. Canny 
lor the statutory period was not v. Andrews, 123 Mass 155; Steere 
regarded as in itself extinguish- v. Tiffany, 13 R. L 568. 
ing the right, no reference being 75. Winter v. Brockwell, 8 
made to any such distinction as East, 308, as explained in Hew- 
that referred to above. lins v. Shippam, 5 Barn. & C. 

72. California Civ. Code, § 221; Liggins v. Inge, 7 Bing. 682; 



1382 Eeal Peoperty. [§ 378 

ment of light over another's land gives a license to 
the owner of the servient tenement to erect a 
building thereon which will prevent the passage of 
light, and the building is erected accordingly, the 
easement of light is extinguished;'^*' and, if one en- 
titled to flow another's land gives such other a 
license to erect an embankment preventing such 
flow, and the embankment is erected, the easement 
of flowage is extinguished." These decisions have 
been referred to in some jurisdictions as representing 
an exception to the general rule that a license is revo- 
cable even though followed by improvements on the 
faith thereof,'^ but they may more satisfactorily, it 
is conceived, be regarded as applications of the doc- 
trine of estoppel. Just as one who undertakes orally 
to grant an easement is, after the intended grantee 
makes improvements on the strength thereof, estopped 
to deny the validity of the grant,^*^ so one who under- 
takes orally to release an easement by authorizing 
the construction of improvements which will prevent its 

Boston, & P. R. Corp. v Doherty, laid down in the books, that a 

154 Mass. 314, 28 N. E. 277; Cart- license executed cannot be coun- 

wright V. Maplesden, 53 N. Y. 622; termanded, is not applicable to 

Addison v. Hack, 2 Gill (Md.) 221, licenses which, if given by deed, 

41 Am. Dec. 421; Vogler v. Geiss, would create an easement, but to 

51 Md. 407. Davidson v Kretz, licenses which, if given by deed, 

127 Minn. 313, 149 N. W. 652. See would extinguish or modify an 

Stein V. Dahm, 96 Ala. 481, 11 easement. They also show that 

So. 597. the distinction, sometimes taken 

76. Winter v. Brockwell, 8 in the books, between a license to 
East, 308. The doctrine has been do acts on the licensee's own 
held to be applicable to the so- land, and a license to do acts on 
called easements of light, air, and the licensor's land, is the same 
access in the owner of land abut- 'distinction that is made between 
ting on a highway. White v. Man- licenses which, if held valid, 
hattan Ry. Co., 139 N. Y. 19, 34 N. would create, and licenses which 
E. 887. See Post, § 417. extinguish or modify, an ease- 

77. Morse v. Copeland, 2 Gray ment." Metcalf, J., in Morse v. 
(Mass.) 302. Copeland, 2 Gray (Mass.) 302. 

78. "The authorities * * * 79. Ante, § 349(d) notes 44-49. 
show that the rule, sometimes 



§ 378] Easements. 1383 

exercise, is thereafter estopped to deny the validity 
of the release. If he evidently does not intend to re- 
lease the easement, as when he gives permission to con- 
struct merely a temporary obstruction, the fact that 
such obstruction is erected would apparently not pre- 
clude him from afterwards asserting the easement.^*' 

Attention has,^"*^ in this connection, been called to 
the consideration that, after the obstruction has been 
erected on the servient tenement under license from 
the owner of the dominant tenement, the latter is 
powerless to remove it or to compel its removal, and 
that this in itself precludes him from again exercising 
the easement until the owner of the servient tenement 
voluntarily removes the obstruction, or it is removed 
by natural causes. 

In the case of a license to obstruct a way at a 
particular point only, the fact of the construction of 
the obstruction in accordance therewith, while it may 
properly be regarded as extinguishing the way at that 
point, and, by reason of the physical conditions of the 
way, such partial extinguishment may necessarily in- 
volve a total disuse of the way,^^ it may occur that 
a right of passage by or around the obstruction is sub- 
stituted by agreement,^^ with the result that the way 
still exists over the servient tenement except at the 
point at which the obstruction occurs.*^ The fact that, 
without having given any express license to obstruct the 
way, the owner of the dominant tenement makes no 
objection to the erection of a structure which has that 
effect, does not necessarily, it seems, preclude him from 

80. See Vogler v. Geiss, 51 Md. R. Corp. v. Doherty, 154 Mass. 
407. 314, 28 N. E. 277; Davidson v. 

80a. See editorial note, 11 Co- Kretz, 127 Minn. 313, 149 N. W. 

lumbia Law Rev. at p. 78. 652. 

81. See Vogler v. Geiss, 51 82. Ante, § 367, notes 12-17. 
Md. 407; Cartwright v. Maples- 83. See Peck v. Lloyd, 38 
den, 53 N. Y. 622; Aldrich v. Rill- Conn. 566; Hall v. Hall, 106 Me. 
ings, 14 R. I. 233; Boston & P. 389, 76 Atl. 705. 



1384 Real Property. [§ 379 

afterwards asserting bis right of passage if tlie owner 
of the servient tenement knew, or had reason to know, 
of the easement.s^ But the physical conditions of the 
way and the other circumstances may be such as to 
justify an inference that another place of passage has 
been substituted by mutual assent.^^ 

§ 379. Adverse user of land. An easement may be 
extinguished by the user of the servient tenement in 
a manner adverse to the exercise of the easement, 
for the period required to give title to land by adverse 
possession,^^ a subject hereafter discussed.^' The mere 
fact, however, that the servient owner uses the land 
without reference to the existence of the easement, 
does not render his user adverse, since he may do this 
merely as a consequence of the failure to exercise the 
easement. He must in some way actively interfere with 
the exercise of the easement, to such an extent as to 
give a right of action against him for disturbance of 
the easement.^ ^ Consequently, the maintenance of a 

84. Welsh V. Taylor, 134 N. Y. N. E. 396; Dill v. Board of Educa- 
450, 18 L. R. A. 535, 31 N. E. tion of City of Camden, 47 N. J. 
896; Oberheim v. Reeside, 116 Eq. 421, 10 L. R. A. 276, 20 Atl. 
Md. 265, 81 Atl. 590. But see 739; Woodruff v. Paddock, 130 N. 
Arnold v. Cornman, 50 Pa. 361. Y. 618, 29 N. E. 1021; State v. 

85. Fitzpatrick v. Boston & Suttle, 115 N. C. 784, 20 S. E. 
M. R. R., 84 Me. 33, 24 Atl. 432; 725; Hoffman v. Dorris, 83 Ore. 
ante, § 367, notes 12-17. 625, 163 Pac. 972; Spackman v. 

86. Wall V. United States Min- Steidel, 88 Pa. St. 453; Jessop v. 
Ing Co., 239 Fed. 90, 152 C. C. A. Borough of Kittaning, 225 Pa. St. 
140; Jesse French Piano & Organ 589, 74 Atl. 554; Bentley v. Root, 
Co. V. Forbes, 129 Ala. 471, 87 19 R. I. 205, 32 Atl. 918; Bowen 
Am. St. Rep. 71, 29 So. 683; v. Team, 6 Rich. Law (S. C.) 298, 
Louisville & N. R. Co. v. Quinn, 60 Am. Dec. 127; City of Galves- 
94 Ky. 310, 22 S. W. 221; Balti- ton v. Williams, 69 Tex. 449, 6 S. 
more, City of, v. Canton Co. of W. 860. 

Baltimore, 124 Md. 620, 93 Atl. 87. Post, §§ 500-513. 

144; Smith v. Langewald, 140 88. Edgerton v. McMullan, 55 

Mass. 205, 4 N. E. 571; Burnham Kan. 90, 39 Pac. 1021; Smith v. 

V. Mahoney, 222 Mass. 524, 111 Langewald, 140 Mass. 205, 4 N. 



^ 380] Easements. 1385 

gate across a way would not usually involve an adverse 
user of the land, it not being such as to give a right 
of action.^^ A mere notice by the owner of the land to 
the person having the easement, demanding that the 
latter cease to make use of the land, and in effect deny- 
ing the existence of the easement, does not constitute 
an actionable obstruction thereof,^^*^ and consequently 
the continuance of such denial for the statutory period, 
if unattended by any actual interference with the exer- 
cise of the easement, will not affect the existence of 
of the easement. 

The adverse user may be, not only by the o^\^ler 
of the servient tenement, but also by another person,*^*^ 
and such other person may be one who has also an 
easement in the same land.^^ That is, if there is ad- 
verse possession sufficient to divest a fee simple title 
to land, it will also operate to extinguish an easement 
in such land, without reference to whether the adverse 
possessor pre\dously had himself an estate or an 
easement in the land. 

§ 380. In favor of innocent purchaser. An ease 
ment is, in effect, as a general rule, extinguished as 
to a purchaser for value of the servient tenement, if 

E. 571; Butterfield v. Reed, 160 C. 160, 90 S. E. 130. 

Mass. 361, 35 N. E. 1128; Day v. 89. Welsh v. Taylor, 134 N. Y. 

Walden, 46 Mich. 575, 10 N. W. 450, 18 L. R. A. 535, 31 N. E. 

26; Dill V. Board of Education of 896; State v. Pettis, 7 Rich. (S. 

City of Camden, 47 N. J. Eq. 421, Car.) 390; Boyd v. Hunt, 102 

10 L. R. A. 276, 20 Atl. 739; Tenn. 495, 52 S. W. 131. 

Andrus v. National Sugar Refin- 89a. Dana v. Smith, 114 Me. 

ing Co., 183 N. Y. 580, 76 N. E. 262, 95 Atl. 1034; Compare, Dost, § 

1088; State v. Suttle, 115 N. C. 528. 

784, 20 S. E. 725; Lindsey v. 90. San Francisco v. Calder- 

Lindeman, 69 Pa. St. 93, 8 Am. wood, 31 Cal. 585, 91 Am. Dec. 

Rep. 219; James v. Stevenson 542. 

(1893), App. Cas. 162. But see 91. Goodwin v. Bragaw, 87 

Baugh V. Arnold, 123 Md. 6, 91 Conn. 31, 86 Atl. 668. 

Atl. 151; Hunter v. West, 172 N. 



1386 Real Peopebty. [§ 380 

lie purchases mthout notice, either actual or con- 
structive,^^'' of the easement,^^ while he takes subject to 
the easement if he has notice thereof.^" 

In the case of an easement created by express 
grant, the right of the innocent purchaser for value 
of the servient tenement to hold the land free from the 
burden of the easement is obviously by reason of the 
recording laws, which invalidate an unrecorded con- 
veyance as against a purchaser without notice,^^ and 
the same is true of an easement created by "implied 
grant" so called,^^ which is properly, as before ex- 
plained, an express grant extended by construction to 
include an easement appurtenant to the land conveyed. 
In the case of a prescriplive easement, however, the 
recording acts, as ordinarily phrased, cannot well 
apply to protect an innocent purchaser, since they have 
to do with priorities as between instruments affecting 
land, while if the easement is prescriptive the question 
is one of priority as between a claim under an instru- 

91a. Post, § 511. 27 N. E. 344; Wissler v. Hershey. 

92. Mesmer v. Uharriet, 174 23 Pt. St. 333. 

Cal. 110, 162 Pac. 104; Rives v. 93. Pollard v. Rebman, 162 

Hickey, 1 MacArthur (D. C.) 83; Cal. 633, 124 Pac. 235; Ashelford 

Rome Gaslight Co. v. Meyer- v. Willis, 194 111. 492, 62 N. E. 

hardt, 61 Ga. 287; Armor v. Pye, 817; Downey v. Hood, 203 Mass. 

25 Kan. 731; Jobling v. Tuttle, 4, 89 N. E. 24; Dinneen v. Corp- 

75 Kan. 351, 9 L. R. A. (N. S.) oration, etc., 114 Md. 589, 79 Atl. 

960, 89 Pac. 699; Corning v. i021; Murphy Chair Co. v. Ameri- 

Gould, 16 Wend. (N. Y.) 531; can Radiator Co., 172 Mich. 14. 

Taylor v. Millard, 118 N. Y. 244, 137 n. W. 791; Litchfield v. 

6 L. R. A. 667, 23 N. E. 376, af- Boogher, 238 Mo. 472, 142 S. W. 

firming 42 Hun, 363; Tise v. 302; Reid v. King, 158 N. 0. 85, 

Whitaker Harvey Co., 144 N. C. 73 S. E. 168; Shields v. Titus, 

507; Ricks v. Scott, 117 Va. 370, 46 Ohio St. 528; Patterson v. 

84 S. E. 676; Roe v. Walsh, 76 Chambers' Power Co., 81 Ore. 328, 

Wash. 148, 135 Pac. 1031, 136 Pac. 159 Pac. 568; Little v. Gibb, 57 

1146; Pentland v. Keep, 41 Wis. Wash. 92, 106 Pac. 491; Proud- 

490; Taggart v. Warner, 83 Wis. foot v. Saffle, 62 W. Va. 51, 57 S. 

1, 53 N. W. 33. See McCann v. E. 256; Forde v. Libby, 22 Wyo. 

Day, 57 111. 101; Ellis v. Bassett. 464, 143 Pac. 1190. 
128 Ind. 118, 25 Am. St. Rep. 421, 



^ 380] 



Easements. 



1387 



ment and a claim not under an instrument. In 
one state there are decisions to this effect, that 
a purchaser of land takes it subject to a iDrescrip- 
tive easement thereon, even though he has no notice, 
actual or constructive.'^*^' There are on the other hand 
occasional decisions that the purchaser in such cas^ 
takes free from the easement, the courts ignoring the 
consideration that the doctrine of notice, as regards 
legal rigljts, is based upon the recording acts and has 
no existence apart therefrom.^ ^ 



94. Post, § 567. 

95. Quinlan v. Noble, 75 Cal. 
250, 17 Pac. 69; Ingals v. Plamon- 
don, 75 111. 118; Shepardson v. 
Perkins, 58 N. H. 354; Muir v. 
Cox, 110 Ky. 560, 62 S. W. 723; 
Havens v. Klein, 51 How. Pr. (N. 
Y.) 82; Rollo v. Nelson, 34 Utah, 
116, 26 L. R. A. (N. S.) 315, 96 
Pac. 315; Hair v. Downing, 96 N. 
Car. 172, 2 S. E. 520; Eliason v. 
Grove, 85 Md. 215, 36 Atl. 844; 
Muse V. Gish, 114 Va. 90, 75 S. 
E. 764. See also citations, ante. 



§ 363c, note 80. 

96. Johnson v. Knapp, 146 
Mass. 70, 15 N. E. 134; Shaugh- 
nessy v. Leary, 162 Mass. 108, 38 
N. E. 197. See cases cited, Post, 
§ 531. 

97. Schmidt v. Brown, 226 111. 
590, 80 N. E. 1071; Jobling v. 
Tuttle, 75 Kan. 351, 9 L. R. A. 
N. S. 960, 89 Pac. 699; Sparks v. 
Rogers, 29 Ky. Law Rep. 1170, 
97 S. W. 11; Van De Vanter v. 
Flaherty, 37 Wash. 218, 79 Pac. 
794. 



CHAPTER XIII. 

PROFIT'S A PRENDRE. 

§ 381. General considerations. 

a82. Rights in gross and appurtenant. 

383. Rights of common. 

384. Rights of pasture. 

385. Mineral rights. 

386. The creation of rights. 

387. Apportionment and extinction. 

§ 381. General considerations. A profi a prendre 
involves primarily a power to acquire, by severance 
or removal from another's land, some thing or things 
previously constituting a part of the land, or appertain- 
ing thereto, the holder of the profit a prendre having, 
as an integral part thereof, rights against the mem- 
bers of the community generally that they shall not 
interfere with the exercise or enjoyment of the power. ^ 
As instances of pro-fits a prendre may be mentioned 
rights to take from another's land, and so acquire as 
one' own, wood,- herbage,^ or coal or other minerals,* 
this latter being at the present day the most important 
class of such rights. Likewise, one may have the 
right to kill and take as his own game on another's 
land,^ fish in waters thereon,^ seaweed cast thereon,"^ 

1. For a justifiable criticism of 5. Wickham v. Hawker, 7 
a former definition by the pres- Mees. & W. 63; Webber v. Lee, 9 
ent writer, see Professor Hoh- Q. B. D. 315; Bingham v. Salene, 
field's article in 27 Yale Law 15 Ore. 208, 3 Am. St. Rep. 152, 
Journ. at p. 70. 14 Pac. 523. 

2. Reg V. Chamberlains, 9 6. Fitzgerald v. Firbank, 
Adol. & E. 444; Clark v. Way, [1897] 2 Ch. 96; Turner v. Heb- 
11 Rich. (S. C.) 621. ron, 61 Conn. 175, 14 L. R. A. 

3. Co. Litt. 4b, 122a; Johnson 386, 22 Atl. 951. 

V. Barnes, L. R. 8 C. P. 527. 7. Hill v. Lord, 48 Me. 83; Sale 

4. Post, § 385. V. Pratt, 19 Pick. (Mass.) 191. 



§ 381] Profits a Prendre. 1389 

or soil, sand and gravel tlierein.^ A right to take ice 
has been regarded as a profit a prendre.^'^ 

A profit a prendre maj^ be exclusive of any right 
in the land owner or in other persons to take that 
l)arti(iilar profit, or it may not be so exclusive/' In 
the case of an exclusive right of profit the one entitled 
thereto, having begun the exercise thereof, has been 
regarded to that extent as in possession of the land, 
so as to be entitled to maintain an action of trespass 
quare clausum fregit against a person interfering 
therewith. ^*^ 

A profit a prendre, like an easement, may be 
created to endure in perpetuity, that is, for the duration 
of an estate in fee simple, or for a less period, such 
as a term of years,^^ or it may even be terminable 
at the will of either the land owner or the owner of 
the profit. ^^^ — 

A profit a prendre involves a right to do such 
things on the land in which the right exists as are rea- 
sonably necessary for the exercise of the right. Thus, 
one to whom is given the right to take timber from land 
may enter oh the land to do so,^^ and one given a 
right to mine may cut through the soil for that purpose, 
and erect necessary mining machinerj^^^a 

8. MaxweU v Martin, 6 Bing. Rep. 329; Harker v. Birkbeck, 3 
522; Blewett v. Tregonning, 3 Ad. Burr. 1556; Wilson v. Mackreth. 
& El. 554; Constable v. Nicholson, 3 Burr. 1824; Crosby v. Wiads- 
14 C. B. N. C. 230; Merwin v. worth, 6 East. 602; Holford v. 
Wheeler, 41 Conn. 25; Wenger v. Bailey, 13 Q. B. 426; Fitzgerald 
Clay Tp. 61 of St. Joseph County, v Firbank [1897] 2 Ch. 96. 

61 Ind. App. 640, 112 N. E. 402; 11. Hooper v. Clark, L. R. 2 

Perley v. Langley, 7 N. H. 233; Q. B. 200; Fitzgerald v. Firbank 

Hopper V Herring, 75 N. J. L. (1897) 2 Ch. 96. Davis v. Miller- 

212, 67 Atl. 714; Texas & P. Ry. Brent Lumber Co., 151 Ala. 580, 

Co. V. Durrett, 57 Tex. 48. 44 So. 639. 

8a. Mitchell v. D'Olier, 62 N. 11a. Christian v. Stlth Coal 

J. L. 375, 59 L. R. A. 949, 53 Atl. Co., 189 Ala. 500, 66 So. 641. 

467. Huntington v. Asher, 96 N. 12. Liford's Case, 11 Coke, 52a; 

Y. 604. Leake, Prop, in Land, 349. 

9. Post, § 383. 12a. Cardigan v. Armitage, 2 

10. Burt V. Moore, 5 Terra Barn. & C. 197; Dand v. Kings- 
2 R. P.— 13 



1390 Eeal Property. [§ 381 

That one has the exclusive right of hunting wild 
fowl on another's land has been held not to affect the 
right of the latter to drain or otherwise change the 
land, provided he does this in good faith to improve the 
land, though this detracts from the value of the 
hunting privilege. ^^'' 

Right to take water. The right to take 

water upon another's land from such a natural source 
of supply as a pond or spring, has been regarded as 
an easement and not a profit a prendre, on the theory 
that the water does not belong to the owner of the 
land on or by which it flows, and consequently the 
grant of the right to take it, while valid in so far 
as it gives an easement to jiass over the land to reach 
the water, is a nullity as regards the water.^^ And 
likewise, as the owner of land abutting on a natural 
watercourse has no ownership of the water therein, '■^•'^ a 
grant by him of the right to take water from the 
stream would seem to involve merely the creation 
of an easement. ^^'^ In so far as water on one's land 
can be regarded as not puhlici juris, but as belonging 

cote, 6 Mees. & W. 174; WiUiams 65 N. W. 911. 
V. Gibson, 84 Ala. 228, 5 Am. St. In Turner v. Hebron, 61 Conn. 

Rep. 368, 4 So. 350; Marvin v. 175, 14 L. R. A. 386, 22 Atl. 951, 

Brewster Iron Min. Co., 55 N. Y. it was held that one person could 

538, 14 Am. Rep. 322; Wardell own the water in a large pond, 

V. Watson, 93 Mo. 107, 5 S. W. with the incidental right of fish- 

605. ing therein, while another own- 

12b. Isherwood v. Salene, 61 ed the bed of the pond. 
Ore. 572, 40 L. R. A. (N. S.) 299, The view that a right to take 

Ann. Cas. 1914B, 542, 123 Pac. vater is an easement rather than 

49. a profit a prendre is perhaps not 

13. Race v. Ward, 4 El. & Bl. entirely in accord with the cases 
702; Manning V. Wasdale, 5 Adol. regarding a right to take ice 
& E. 758; Hill v. Lord, 48 Me. 83. as a profit A prendre. Mitchell 
Goodrich v. Burbank, 12 Allen v. D'Olier, 68 N. J. L. 375, 59 
(Mass.) 459, 90 Am. Dec. 161. L. R. A. 949, 53 Atl. 467; Hunt- 
See Legg V. Horn, 45 Conn. 409. ington v. Asher, 96 N. Y. 604. 

But that water issuing from a 13a. Ante, § 339(a). 

spring is private property, see 13b. Ante, § 352. 

Metcalf V Nelson, 8 S. D. 87, 



§ 381] Profits a Prendre. 1391 

to him personally, as when it is accumulated by him in 
a cistern or aqueduct,^^*^ since the water is not a part 
of the land, the grant of such w^ater would be, not 
the grant of a right of profit, but rather the grant 
of a chattel, with an incidental right to come on the 
land for the purpose of taking it, that is, using the 
terminology of the older books, there is in such case a 
license coupled with an interest.^^^ But in those 
states in which water from natural streams is regu- 
larly distributed by means of aqueducts and ditches 
controlled by irrigation companies, contracts with such 
companies are regarded as having "for their subject 
matter the usufruct in the stream (and not the w^ater 
itself) through the intermediate agency of the ditch, 
affecting the water right in the stream from which the 
ditch heads. So far as the water in the canal is per- 
sonalty, it is personalty of the consumers as w^ell as 
of the company, the company being chiefly the agent 
of the consumers to make the diversion and carry the 
water, "^^® 

License privilege distinguished. One having 

a profit a (prendre has a right, as against the mem- 
])ers of the community generally, including the owner 
of the land, that they shall not interfere with the 
exercise or .enjoyment of the profit.'^ It is in this 
respect that a license to sever particular things from 
the land is to be distinguished from a profit a prendre, 
the licensee having no right to freedom from inter- 
ference by third persons or by the landowner himself, 
the distinction between a license and a profit a prendre 
l>eing in a general way similar to that between a 
license and an easement.^ ^ It is as a result, it seems, 

13c. Ante, § 339(a). umbia Law Rev. 251, 30 Harv. 

13d. Ante, § 349(d). Law Rev. 297. 

13e. Samuel C. Wiel, Esq., 14. See cases cited inle, this 

article 22 Harv. Law Rev. at p. section, note 11. 

213. See editorial notes, 13 Col- 15. ^nte, § 349(a). 



1392 Eeal Pkoperty. [§382 

of the absence of any duty on the part of the landowner 
to refrain from interference with the exercise of the 
license privilege that the license is revocable at the 
pleasure of the licensor. 

Not infrequently a landowner licenses another 
to sever from the land some particular subject of profit, 
with the intention that the license, on effecting such 
severance, shall become the owner of the thing severed, 
as for instance, when the landowner orally licenses 
another to cut timber or remove minerals. In such 
a case there is both a license to sever the wood or 
minerals and an oral gift or sale of them, the gift or 
sale taking effect, for the purpose of transferring the 
owmership to the licensee, so soon as they become 
chattels by reason of their severance. ^"^ 

§ 382. Rights in gross and appurtenant. Eights 
to take profits from another's land may exist in gross, 
— that is, they may be held by one independently of 
his ownership of other land, the rule in this respect 
differing in England from that usually regarded as 
applying to easements, unattended with a right of 
profit.^" They may, however, be appurtenant to other 
land, the land to which the right ap])ertains being then 
the "dominant tenement," and the land from which 
the profits are taken being the ''servient 'tenement.'"^ 

16. Ante, § 261. 18. PhiHips v. Rhodes, 7 Mete. 

17. Welcome v. Upton, 6 Mees. (Mass.) 322; Goodrich v. Bur- 
& W. 536; Shuttleworth v. Le bank, 12 Allen (Mass.) 459, 90 
Fleming, 19 C. B. (N. S.) 687; Am. Dec. 161; Huntington v. 
Pierce v. Keator, 70 N. Y. 419, Asher, 96 N. Y. 604; Bingham v. 
26 Am. Rep. 612; Tinicum Fish- Salene, 15 Ore. 208, 14 Pac. 523, 
ing Co. V. Carter, 61 Pa. St. 21. 3 Am. St. Rep. 152; Grubb v. 
100 Am. Dec. 597; Youghiogheny Grubb, 74 Pa. St. 25; Hall v. Law- 
River Coal Co. V. Pierce, 153 Pa. rence, 2 R. I. 218, 57 Am. Dec. 
St. 74, 25 Atl. 1026; Cadwalader 715; Chase v. Cram, 39 R. I. 83, 
V. Bailey, 17 R. I. 495, 14 L. R. 97 Atl. 481, 802. And see cases 
A. 300, 23 Atl. 20. Williams, Rights in notes following. 

of Common, 184, 195, 203, 207. 



§ 382] 



Profits a Peendbe. 



1393 



A profit a prendre in gross is ordinarily regarded as 
freely transferable and inheritable.^^ A profit a pren- 
dre appurtenant passes prima facie upon a transfer of 
the dominant tenement.^"'' 

A right of profit, in order that it may be appur- 
tenant to other land, and pass therewith, must be in 
some way connected with the enjoyment of the right of 
property in the dominant tenement, and must be lim- 
ited by the needs of the latter.^^" Consequently one 
cannot claim as appurtenant to land owaied by him a 
right to take all the wood which may grow on other 
land, and dispose of it as he pleases,^*' or a right to 
take turf or seaw^eed from other land, without regard 
to the requirements of his own tenement.^ ^ 

Since a right of profit appurtenant is limited and 
admeasured by the uses of the dominant tenement, it 
follows that such profit cannot be separated from the 
latter by a grant thereof to a third person without 
the tenement.^^ 



19. Welcome v. Upton, 6 Mees. 
& W. 536; Muskett v. Hill, 5 
Eing. N. C. 694; Grubb v. Bayard, 
2 Wall. Jr. 81; Gaston v. Plum, 
14 Conn. 344; New Haven v. 
Hotchkiss, 77 Conn. 168, 58 Atl. 
753; Baker v. Kenney, 145 Iowa, 
638, 139 Am. St. Rep. 456, 124 N. 
W. 901; Harlow v. Lake Superior 
Iron Co., 36 Mich. 105; Negaunee 
Iron Co. V. Iron Cliffs Co., 134 
Mich. 264, 96 N. W. 468; Boat- 
man V. Lasley, 23 Ohio St. 614; 
Tinicum Fishing Co. v. Carter, 61 
Pa. St. 21, 100 Am. Dec. 597; 
Cadwalader v. Bailey, 17 R. I. 
498, 14 L. R. A. 300, 23 Atl. 20. 

19a. Warrick v. Queen's Col- 
lege, 6 Ch. App. 716; Hopper v. 
Herring, 75 N. J. L. 212, 67 Atl. 
714; Huff V. McCauley, 53 Pa. St. 



209, 21 Am. Dec. 203; Grubb v. 
Grubb, 74 Pa. St. 25. 

19b. Chesterfield v. Harris 
(1908), 2 Ch. 397; Hopper v. Her- 
ring, 75 N. J. L. 212, 67 Atl. 714; 
Pierce v. Keator, 70 N. Y. 419, 26 
Am. Rep. 612. 

20. Bailey v. Stephens, 12 C. 
B. N. S. 91. 

21. Valentine v. Penny, Noy, 
145; Hall v. Lawrence, 2 R. I. 
218. In Huntington v. Asher, 96 
N. Y. 604, 48 Am. Rep. 652, it was 
held that a right to cut ice on 
land, and to store it in an ice 
house on other land, might be 
appurtenant to the land on which 
the ice house was situated. 

22. Drury v. Kent, Cro. Jac. 
M; Hall v. Lawrence, 2 R. I. 218, 
57 Am. Dec. 715; Baker v. Ken- 



1394 Real Property. [§§ 383, 384 

§ 383. Righis of common. The term ''common" is 
frequently applied in England, especially by the older 
writers, to a right of profit, as when they speak of 
common of pasture, of estovers, of turbary, of piscary 
(fishing), or of digging for coals, minerals, and the 
like.^^ The word "common," applied in this connec- 
tion, refers to the fact that the interest in the profits 
is ''common," as between the person entitled to take 
profits and either the owner of the land, or other owners 
of like rights of profit in the same land.^^ Con- 
sequently, the word is properly applied to any profit 
a prendre which is not exclusive of like rights in 
either the owner of the land or in a third person. 
A right of profit, on the other hand, which is ex- 
clusive of any rights in either the landowner or in a 
third person to take similar profits from that particular 
land, is usually referred to in the English books as a 
"several" right, as in the case of a several right of 
fishery or of pasture.^^ 

Common of turbary involves the right in common 
with others, of digging turf on another's land, and 
common of piscary the right of fishing on the land of 
another, or, rather, in water on his land.^^ Common 
of estovers involves the right of taking necessary wood 
from another's land for use as firewood, or in repairs 
on a house or farm.^^ 

§ 384. Rights of pasture. The most imjDortant 
profit a prendre, historically considered, is that of pas- 
turing cattle on another's land, usually referred to as 
"common of pasture." Under the feudal system, the 

ney, 145 Iowa, 638, 139 Am. St. Leake, Prop, in Land, 332. 

Kep. 456, 124 N. W. 90L 25. Co. Litt. 122a; Williams, 

23. Co. Litt. 122a; 2 Blackst. Rights of Common, 12, 18-30, 259- 
Comm. 32, 34; Williams, Rights '^^^65. 

of Common, passim. 26. Co. Litt. 122a; 2 Bl. Comm. 

24. Co. Litt. 122a; 2 Pollock & 34; Smith v. Kemp. 2 Salk. 637. 
Maitland, Hist. Eng. Law, 144; 27. 2 Bl. Comm. 35; Van Rens- 



§ 384] 



Profits a Peendke. 



1395 



right existed in favor of the tenants of the manor as re- 
gards the waste land of the manor, — that is, the land 
not allotted to tenants or reserved by the lord as de- 
mesne land.^^ 

Common of pasture involves the placing of the 
cattle on the land to eat the herbage, in this differing 
from a right to take herbage from another's land by 
cutting and transporting it.-^ 

Common of pasture might, at common law, be '^ ap- 
pendant," ' 'appurtenant," "in gross," or "because of 
vicinage." Common appendant existed, as before sug- 
gested, in favor of each holder of arable land in a 
manor, as appertaining to such land, and involved the 
right to pasture, on the waste land of the manor, his 
'' commonable" cattle. It could not be created after the 
statute of Quia Eyiiptores, since a grant by the lord of 
the manor thereafter took the land granted out of the 
manor as regards tenure,"^'^ and cannot, of course, exist 



selaer v. Radcliff, 10 Wend. (N. 
Y.) 639. The right to take 
fstovers from another's land must 
be distinguished from the exclu- 
sive right of a tenant for life 
or years to take them from his 
own land, which has been pre- 
viously considered. See, onle, § 
283, and 2 Blackst. Comm. 35, 
Chitty's note. 

28. This right in the tenants 
of the manor to take profits 
from the waste land probably ex- 
isted, before the introduction of 
feudalism into England, as a 
right in the inhabitants of the 
town or "vill" to utilize the lands 
v.hich belonged to the community 
i:s a whole. After the introduc- 
tion of feudalism and of the man- 
orial idea, these community lands 
came to be regarded as bslonging 
to the lord, and consequently the 
right to take profits therefrom 



was regarded as a right to profits 
a prendre in another's land. The 
community lands of the town or 
vill were themselves a survival 
of the "mark" system, which ex- 
isted in all Aryan communities. 
Digby, Hist. Real Prop. (5th Ed.) 
192; Williams, Rights of Com- 
mon, 37 et seq.: INIaine, Village 
Communities, passim; 4 Kent, 
Comm. 441, note by Hon. 0. W. 
Holmes. In this country, traces 
of the mark system are to be 
found in the system of "com- 
mons" or "common lands" which 
existed in New Englanfl and also 
in the Spanish and French settle- 
ments. See post, § 418. 

29. De la Warr v. Miles, 17 
Ch. Div. 535; Potter v. North, 1 
Saund. 353a, note; Williams, 
Rights of Common, 21. 

30. Leake, Piop. in Land, 337, 
citing 2 Co. Inst. 85. 



1396 Real Peopeety. [§ 385 

in this country. Common "because of vicinage" was 
a local custom of intercommoning, — that is, for cattle 
to stray from one common to another adjacent com- 
mon, without creating any liability for trespass.''^ It 
was based on custom, and has never existed in this 
country."^^ Common of pasture "appurtenant" and 
"in gross" are rights of pasture annexed to a dominant 
tenement, or belonging to a person and his heirs, the 
terms being applied as in other cases of profits a 
prendre,^^ and these may exist in this country. 

§ 385. Mineral rights. A person may have a right 
to take minerals from another's land in the nature of a 
profit a prendre?"^ Such right to take minerals from 
another's land must be carefully distinguished from 
an estate in the minerals themselves which, as pre- 
viously stated, may be separated, for purposes of 
ownership, from the surface of the ground.^^ A grant 
of the right to take minerals from another's land is not 

31. Co. Litt. 122a; 2 Blackst. Comm. 33. 

Comm. 33. 34. Doe d. Hanley v. Wood, 2 

S2. A right of common, some- Barn. & Aid. 738; Muskett v. HiU, 
times, perhaps, termed "common 5 Bing. N. C. 694; Rutland Marble 
of vicinage," has been occasional- Co. v. Ripley, 10 Wall. (U. S.) 
ly asserted in jurisdictions where 339, 19 L. Ed. 955; Smith v. 
the owner of cattle is not bound Cooley, 65 Cal. 46, 2 Pac. 880; 
to prevent them from trespassing Baker v. Hart, 123 N. Y. 470, 12 
on unfenced land belonging to L. R. A. 60, 25 N. E. 948; Clem- 
others (see Davis v. Gurley, 44 ent v. Youngman, 40 Pa. St. 
Ga. 582), but the right to allow 'iAl; Chartiers Block Coal Co. v. 
one's cattle to roam over un- Mellon, 152 Pa. St. 286, 18 L. R. 
fenced lands belongs, in those A. 702, 34 Am. St. Rep. 645, 25 
jurisdictions, to everybody, and, Atl. 597. 

as clearly decided, constitutes in 35. Wilkinson v. Proud, 11 

no sense a right of common of Mees. & W^. 33; Caldwell v. Ful- 

pasture (Harrell v. Hannum, 50 ton, 31 Pa. St. 475; Baker v. 

Ga. 508). See Smith v. Floyd, 18 Hart, 123 N. Y. 470, 12 L. R. A. 

Barb. (N. Y.) 522; Thomas v. 60, 25 N. E. 948; Smith v. Cooley. 

Marshfield, 13 Pick. (Mass.) 240. 65 Cal. 46, 2 Pac. 880. See ante, § 

33. Co. Litt. 122a; 2 Blackst. 253. 



§ 386] Pkofits a Pkendee. 1397 

exclusive of the right of the owner of the land also to 
take them, unless it is so expressed."" A right to take 
oil or gas from land in which the person so entitled has 
no right of ownership is likewise, though not always 
expressly so stated, a right of profit a prendre.^'^ Fre- 
quently what is properly a profit a prendre as regards 
minerals in land, that is, a power of a more or less 
permanent character to take as one's own minerals in 
the land, is referred to as a mining license,"^ the im- 
portant distinction, before referred to, between a profit 
a prendre and a license,^'' being thus ignored. 

§ 386. The creation of rights. A profit a prendre 
may, like an easement, be acquired by either grant or 
prescription. Since the grant of such a right involves 
a transfer of an interest in land, it must be created by 
writing, and a seal is necessary to the validity of the 
grant at common law.^° An attempted grant of a 
profit a prendre, if invalid as being merely oral, or, it 
would seem, as wanting a seal, creates a license merely, 
which may be revoked at any time,^^ but by reason of 

36. Stockbrldge Iron Co. v. 57 Pa. St. 446; Boone v. Stover, 
Hudson Iron Co., 107 Mass. 290; 06 Mo. 430; Silsby v. Trotter, 29 
Massot V. Moses, 3 Rich. (S. C.) N. J. Eq. 228; East Jersey Iron 
168; Harlow v. Lake Superior Co. v. Wright, 32 N. J. Eq. 248; 
Iron Co., 36 Mich. 105; Silsby v. Painbridge, Mines (5th Ed.) 280 
Trotter, 29 N. J. Eq. 228; Grubb t'^ seq.; MacSwinney, Mines, c. 12. 
V. Bayard, 2 Wall. Jr. 81, Fed. and authorities cited, onte, § 254. 
Cas. No. 5,849; Funk v. Halde- 39. Ante, § 381, notes 14-16. 
man, 53 Pa. St. 229; Mountjoy's 40. Hopkins v. Robinson, 2 
Case, Co. Litt. 164b. Lev. 2; Somerset v. Fogwell, 5 

37. See Brown v. Spilman, 155 Barn. & C. 875; Holford v. Bailey, 
U. S. 665, 39 L. Ed. 304; Union 13 Q. B. 426; Taylor v. Millard, 
Petroleum Co. v. Bliven Petro- 118 N. Y. 244, 6 L. R. A. 667. 23 
Icum Co., 72 Pa. St. 173; Duffield N. E. 367; Karaphou&e \. Gaffner, 
V. Rosenzweig, 144 Pa. St. 520, 2;: 73 111. 453; Boone v. Stover, 66 
Atl. 4. Mo. 430; McBee v. Loftis, 1 Strob. 

38. See Stockbridge Iron Co. Eq. (S. C.) 90. 

V. Hudson Iron Co., 107 Mass. 41. Williams v. Morrison (C. 

290, 322; Kamphouse v. Gaffner, C.) 32 Fed. 177; Wheeler v. West, 
73 111. 453; Neumoyer v. Andreas, 71 Cal. 126, 11 Pac. 871; Kamp- 



1398 Real Property. [§ 387 

tlie making of improvements by the intended grantee on 
the faith thereof the intending grantor may be estop- 
ped to deny the validity of the grant,^- as in the case 
of an invalid grant of an easement.'^^ 

A profit a prendre may also, like an easement, be 
created by words of exception or reservation,^^*^ 

A right of profit may be acquired by prescription, 
provided the taking during the prescriptive period was 
limited to the requirements of a particular dominant 
tenement.^^ But there can be no prescriptive right of 
profit in the public."*^ 

§ 387. AppofTtionment and extinction. A profit 
a prendre in gross cannot be assigned in portions to 
different persons, so that each of the assignees may 
exercise it separately, but all the assignees must exer- 
cise it in common; this being on the theory that other- 
wise the land would b« injured as a result of the taking 
of profits therefrom by numerous persons.^® Some 
rights of common appurtenant, such as those of esto- 
vers, are not apportionable on the severance of the 
dominant tenement by the conveyance of a part thereof, 
since this would increase the amount of profits to be 

house V. Gaffner, 73 IH. 453; Des- P. Co., 207 N. Y. 34, 100 N. E. 

lege V. Pearce, 38 Md. 588; Huff 434; Tuscorara Club of Mil- 

V. McCauley, 53 Pa. St. 206. brook v. Brown, 215 N. Y. 543, 

42. Kamphouse v. Gaffner, 73 109 N. E. 597. 

III. 453; Huff v. McCauley, 53 Pa. 44. Dowglas v. Kendall, Cro. 

St. 206. Jac. 256; Cowlan v. Slack, 15 

43. Ante, § 349(d), notes 44- East, 108; Ackroyd v. Smith, 10 
49. C. B. 164; Bailey v. Stephens, 12 

43a. Stockbridge Iron Co. v. C. B. N. S. 91; Harris v. Chester- 
Hudson Iron Co., 107 Mass. 290; field (1911), App. Cas. 623; Hill 
Warden v. Watson, 93 Md. 107, 5 v. Lord, 48 Me. 83; Morse v. Mar- 
S. W. 605; Alden's Appeal, 93 Pa. shall, 97 Mass. 519; Perley v. 
St. 182; Pierce v. Keator, 70 N. Langley, 7 N. H. 233. 
Y. 419. 45. Post, § 419. 

That a reservation is ineffec- 46. Mountjoy's Case, Co. Lift, 

tual to create a proiit a prendre 164b; Chetham v. Williamson, 4 

in favor of a third person, see East, 469; Funk v. Haldeman, 53 

Beardslee v. New Berlin, L. & Pa. St. 229, 244; Harlow v. Lake 



§ 387] Profits a Peendee. 1399 

taken, and, consequently, as neither of the persons 
between whom the land is divided is entitled to the 
l-irofits, the right thereto is entirely extinguished by 
such a conveyance.*' But where a right of common is 
admeasurable according to the area of the dominant 
tenement, the common may be apportioned to the 
several parts of the dominant tenement upon its 
severance, the burden on the servient tenement not 
being increased thereby. Such is the case where 
there is a right to pasture such cattle as may be 
kept on the dominant tenement, or to take such herb- 
age as may be used thereon, and the alienee of a 
part of the dominant tenement is entitled to a right of 
common proportioned to the extent of his grant.^^ 

A profit a prendre is extinguished by a release 
thereof to the owner of the servient tenement.*^ If the 
titles to the dominant and servient tenements become 
united in one person, he having an equal estate in both, 
the right of common or profit is extinguished, since a 
man cannot have a right of profit in his o^vn land.^*^ 
And the same result no doubt follows if the owner of 
a right of profit in gross acquires a fee-simple estate 
in the servient tenement. 

Even though a right of profit or common is appor- 
tionable, if separate parts of the land subject thereto 
are held by different tenants, the right is extinguished 
in case the owner of the dominant tenement releases a 

Superior Iron Co., 36 Mich. 105, rence, 2 R. I. 218, 57 Am. Dec. 

121. 715; Van Rensselaer v. Radcliff, 

47-. Van Rensselaer v. Rad- 10 Wend. (N. Y.) 639. 

cliffe, 10 Wend. (N. Y.) 639, 2r) 49. Litt. § 480; Co. Litt. 280a; 

Am. Dec. 582; Livingston v. 2 Leake, 355. 

Ketchum, 1 Barb. (N. Y.) 592; 50. Tyrringham's Case, 4 Coke, 

Hall V. Lawrence, 2 R. I. 218, 57 38a; Bradshaw v. Eyre, Cro. Eliz. 

Am. Dec. 715; Bell v. Ohio & P. 570; Rex v. Inhabitants of Her- 

R. Co., 25 Pa. St. 161, 64 Am. mitage, Carth. 239; Saundeys v. 

Dec. 687. Oliff, Moore, 467; Hall v. Law- 

48. Co. Litt. 122a; Tyrring- rence, 2 R. I. 218, 57 Am. Dec. 

ham's Cas, 4 Coke, 37a; Wild's 715. 
Case, 8 Coke, 78b; Hall v. Law- 



1400 



Real. Property. 



[§ 387 



])art of such land from the burden of the profit,^^ or if 
the dominant tenement and a part of the servient land 
become the property of one man;''- since, otherwise, the 
burden upon the other parts would be increased. 



51. Rotherham v. Green, Cro. I.eon. 43; Livingston v. Te* 



Eliz. 593; Hall v. Lawrence, 2 
R. L 218, 57 Am. Dec. 715; John- 
son V. Barnes, L. R. 7 C. P. 592, 
600. 

52. Kimpton v. Bellamyes, 1 



Broeck, 16 Johns. (N. Y.) 14, 8 
Am. Dec. 287; Hall v. Lawrence, 
2 R. I. 218, 57 Am. Dec. 715; BeU 
V. Ohio & P. R. Co., 25 Pa. St. 
161, 64 Am. Dec. 687. 



CHAPTER XIV. 

COVENANTS RUNNING WITH THE LAND. 

§ 388. General considerations. 

389. Tlie running of benefits. 

390. The runnings of burdens. 

391. Privity of estate. 

392. The nature of the covenant. 

393. Party wall agreements. 

§ 388. General considerations. Covenants with 
the owner of hind, which are calculated to render its 
enjoyment more beneficial, may in some, if not all, 
cases, be enforced by a subsequent owner of the land; 
and, on the other hand, covenants made by the o^^^ler 
of land, restricting in some mode the freedom of its 
enjoyment, may, by some authorities, be enforced against 
a subsequent owner of the land. Covenants the benefit 
or burden of which may thus pass to subsequent own- 
ers of the land are said to "run with the land." 
Rights created by such covenants in favor of or against 
transferees of the land are strictly in personam, and 
not in rem; but as incidents of the land, following it 
into the hands of subsequent owners, they are some- 
what similar in effect to proprietary rights in another's 
land such as have been previously discussed, and ac- 
cordingly call for consideration in this connection. 

That covenants in connection with leases run in 
favor of or against the owner of an estate for life or 
for years created by the lease, or of the reversion 
expectant on such estate, is determined, or at least 
confirmed, by the provisions of the statute of 32 
Hen, VIII. *c. 34. The terms and effect of this statute 
having been already cons^^dered,' the running of cove- 
nants made by or with the owner of land in fee simple 
not in connection with a lease, will alone be here dis- 
cussed. 

(1401) 



1402 Eeal Peopeety. [§ 388 

These questions of the assignment of contractual 
benefits and liabilities by the transfer of the land in con- 
nection with which the contract was made have usually 
been considered in connection with "covenants," strict- 
ly so called, that is, contracts under seal. In England, 
owing to the general practice of sealing formal legal in- 
struments affecting land, the question of the running of 
a contract not under seal appears not to have been the 
subject of judicial determination, so far as appears ; and 
the fact that the running of covenants in leases was, 
by the statute of 32 Hen. 8, expressly confined to 
covenants in indentures of lease may well have tended 
to confirm the view that in no case can an agreement 
not under seal run with the land. In this country 
there are one or two decisions that a contract not 
under seal will not run with the land- and at least one 
case indicative of a contrary view.^ In any state 
in which private seals have been abolished or their 
efficacy destroyed, the fact that a contract is or is 
not under seal is obviously immaterial upon the ques- 
tion whether it runs with the land. 

In the case of a deed poll,— that is, an instrument 
sealed by one only of the parties thereto, — a stipula- 
tion therein on the part of the person not sealing it 
is, by the weight of authoritj^ regarded as the covenant 
of such person by reason of his acceptance of the 
conveyance,* though there are well-considered opinions 

1. Ante, § 56(a). 114 N. E. 692. 

2. Martin v. Drinaii, 128 Mass. 4. Co. Litt. 230b, Butler's 
515; Kennedy v. Owen, 136 Mass. note; Sheppard's Touchstone, 
199; Poage v. Wabash, St. L. & 177; Georgia Southern R. Co. v. 
P. Ry. Co., 24 Mo. App. 199. Reeves, 64 Ga. 492; Sanitary Dis- 

3. Burbank v. Pillsbury, 4S N. trict of Chicago v. Chicago Title 
H. 475. That an oral contract & Trust Co., 278 111. 529, 116 N. 
will not run, see St. Louis, A. & E. 161; Midland Ry. Co. v. Fisher, 
T. H. R. Co., V. Todd, 36 111. 409; 125 Ind. 19, 8 L. R. A. 694, 21 Am. 
Guilfoos V. N. Y. Cent. R. Co., 69 St. Rep. 189, 24 N. E. 758; Sex- 
Hun (N. Y.) 593, 23 N. Y. Supp. auer v. Wilson, 136 Iowa, 357, 14 
925; Bartlett v. State, — Ind. — , L. R. A. (N. S.) 185, 15 A. & E. 



§ 389] 



Covenants Running With Land. 



1403 



to the contrary.^ In order to create a covenant, neither 
the word "covenant," nor any other particular word, 
is necessary,^ and words of condition are frequently, 
as before stated, construed as words of covenant/ 
Moreover, words of covenant have been sometimes 
construed as creating, not a covenant, but an ease- 
ment,^ or a charge on the land in the nature of a 
lien.9 

§ 389. The running of benefits. That the right to 
sue upon a covenant relating to land may pass to a 
subsequent owner of the land, claiming under the 
covenantee, by reason merely of the conveyance of the 
land, is generally conceded.^*' Such a covenant is usually 



Ann. Cas. 54, 113 N. W. 941; Ken- 
tucky Cent. R. Co. v. Kenney, 82 
Ky. 154 (semble) ■ Poage v. Wa- 
bash, St. L. & P. Ry. Co., 24 Mo. 
App. 199; Burbank v. Pillsbury, 
48 N. H. 475, 97 Am. Dec. 633; 
Finley v. Simpson, 22 N. J. L. 
311, 53 Am. Dec. 252; Hagerty 
V. Lee, 54 N. J. L. 580, 20 L. R. A. 
C31, 25 Atl. 319; Atlantic Dock 
Co. V. Leavitt, 54 N. Y. 35, 13 
Am. Rep. 556; Bowen v. Beck, 94 
N. Y. 86, 46 Am. Rep. 124; May- 
nairl v. Moore, 76 N. C. 158 {sem- 
ble) ; Riug V. Mayberry, 168 N. 
C. 563, 84 S. E. 846; Hickey v. 
Lake Shore & M. S. Ry. Co., 51 
Ohio St. 40, 23 L. R. A. 396, 46 
Am. St. Rep. 543, 36 N. E. 72; 
Doty V. Chattanooga Union Ry. 
Co, 103 Tenn. 564, 53 S. W. 944, 
48 L. R. A. 160, 6 L. R. A. (X. S.) 
436. 

5. Piatt, Covenants, 10; Hins 
dale V. Humphrey, 15 Conn. 431; 
Stabler v. Cowman, 7 Gill & J. 
(Md.) 284; Western Md. R. Co. 
V. Orendirff, 37 Md. 335; Newell 



V. Hill, 2 Mete. (Mass.) 180; 
Martin v. Drinan, 128 Mass. 515; 
Kennady v. Owen, 136 Mass. 199; 
Maule V. Weaver. 7 Pa. St. 329; 
First Congregational Meeting 
House Soc. V. Town of Rochestei , 
66 Vt. 501, 29 Atl. 810. 

6. Piatt, Covenants. 28; Har- 
tung V. Witte, 59 Wis. 285, 18 N. 
W. 175; Midgett v. Brooks, 34 N. 
C. 145, 55 Am. Dec. 405; Taylor 
V. Preston. 79 Pa. St. 436; Trull 
v. Eastman, 3 Mete. (Mass.) 121; 
Electric City Land & Improve- 
ment Co. V. West Ridge Coal Co., 
187 Pa. St. 500, 41 Atl. 458. 

7. Ante, § 79. 

8. Ante, § 361. 

9. Fresno Canal & Irrigation 
Co. V. Rowell, 80 Cal. 114, 13 Am. 
St. Rep. 112, 22 Pac. 53; Howard 
Mfg. Co. V. Water Lot Co., 53 Ga. 
689; Martin v. Martin. 44 Kan. 
iP5, 24 Pac. 418; Goudy v. Goudy, 
Wright (Ohio), 410. 

10. Pollock, Contracts (Willis- 
ton's Ed.), 300; Sims, Covenants 
Running with Land, 136; Fergu- 



1404 



Real Property. 



[^ 389 



made by the grantor or grantee of land as an incident 
of the conveyance, that is, by one who has some 
relation to the title. The question has, however, 
occasionally arisen whether one who is neither a 
grantor nor grantee of the land may make a covenant 
with the owner thereof, the benefit of which will pass 
to a subsequent owner of the land, that is, whether 
the benefit of a covenant may run, though there is 
lacking what is ordinarily referred to as *' privity of 
estate" between the covenantor and covenantee. The 
authorities are about equally divided upon the ques- 
tion. ^^ Apart, however, from any question of cove- 
nants running wdth the land, the transfer of the land 
might be construed as intended to pass the right of 
action for subsequent breaches of the covenant, that 



son V. Omaha & S. W. R. Co., 227 
Fed. 513, 142 C. C. A. 145; St. 
Louis, I. M. & S. Ry. Co. v. 
O'Baugh, 49 Ark. 418, 5 S. W. 
711; Sterling Hydraulic Co. v. 
Williams, 66 111. 393; Peden v. 
Chicago, R. I. & P. Ry. Co., 73 
Iowa, 328, 5 Am. St. Rep. 680, 35 
N. W. 424; Gaines' Adm'x v. Poor, 
3 Mete. (Ky.) 503, 79 Am. Dec. 
559; Leader v. La Flamme, 111 
Me. 242, 88 Atl. 859; Maryland 
Coal Co. V. Cumberland & Penn- 
sylvania R. Co., 41 Md. 343; Na- 
tional Union Bank at Dover v. 
Segur, 39 N. J. L. 173; Vjntnor 
Investment Co. v. Record Devel. 
Co. (N. J. Ch.), 80 Atl. 952; Raby 
V. Reeves, 112 N. C. 688, 16 S. 
E. 760; Ford v. Oregon Electric 
R. Co., 60 Ore. 278, 36 L. R. A. 
(N. S.) 358, Ann. Cas. 1914A, 280, 
117 Pac. 809. 

11. That the benefit will pass 
with the land in such case, see 



Pollock, Contracts (7th Ed.) 237, 
note; Holmes, The Common Law, 
405; 1 Smith's Leading Cases (8th 
u\m. Ed.) at p. 176; Shaber v. St. 
Paul Water Co., 30 Minn. 179, 14 
N. W. 874; Dickinson v. Hoomes' 
Adm'r, 8 Grat. (Va.) 353 (dic- 
tum) ; Gaines' Adm'x v. Poor, 3 
Mete. (Ky.) 503, 79 Am. Dec. 559; 
Rawle, Covenants, § 203, note. 
The contrary view is taken in 
Sims, Covenants Running with 
the Land, 196; Sugden, Vendors 
(14th Ed.) 584 et seq,; Mygatt v. 
Coe, 124 N .Y. 212, 11 L. R. A. 
646, 26 N. E. 611, 147 N. Y. 456, 
42 N. E. 17; Lyon v. Parker, 45 
Me. 474; Hurd v. Curtis, 19 
Pick. (Mass.) 459 {dictum) Pack- 
enham's Case, Y. B. 42 Edw. Hi. 
3, pi. 14 (translated in Rawle, 
Covenants, § 203, note), is cited 
on both sides of the discussion, — 
a not unnatural result of the ob- 
scurity of the report. 



§ 390] 



Covenants Running With Land. 



1405 



is, as involving an assignment of a cliose in action, 
within the modern statutes and rules in that regard.^^"^ 

§ 390, The running of burdens. In England it is 
apparently the law that the burden of a covenant by 
the owner of land in fee simple, made with one other 
than his lessee, will not run so as to be enforceable 
against a transferee of the land.^^ In this country, 
on the other hand, there are a number of decisions 
to the effect that covenants by the owner of land 
will bind transferees of the land,^-^ though in a few 



lla. See 1 Tiffany, Landlord & 
Ten. p. 885. That transfer of 
the land after breach does not 
transfer the right of action for 
such breach, see Gulf Coast & 
Coke Co. V. Musgrove, 195 Ala. 
219, 70 So. 179. 

12. Pollock, Contracts (7th 
Ed.) 237; 1 Smith, Lead. Cas. 
(10th Ed.) 75-85. See Brewster 
V. KidgUl, 12 Mod. 166; Brew- 
.ster V. Kitchin, 1 Ld. Raym. 317; 
Keppel V. Bailey, 2 Mylue & K. 
517; Austerberry v. Corporation 
of Oldham, 29 Ch. Div. 750. 

13. Robbins v. Webo, 68 Ala. 
393; Gilmer v. Mobile, & M. R. 
Co., 79 Ala. 569; Alderson v. Cut- 
ting, 163 Cal. 503, 126 Pac. 157 
(semble) ; Hottell v. Farmers' 
Protective Ass'n, 25 Colo. 67, 71 
Am. St. Rep. 109, 53 Pac. 327; 
Georgia Southern R. Co. v. Reeves, 
64 Ga. 492; Dorsey v. St. Louis 
A., &.T. H. R. Co., 58 111. 65.; 
Fitch v. Johnson, 104 111. Ill; 
Hazlett V. Sinclair, 76 Ind. 488, 
40 Am. Rep. 254; Conduitt v. 
Ross, 102 Ind. 166, 26 N. E. 198; 
Sexauer v. Wilson, 136 Iowa, 357, 
14 L. R. A. (N. S.) 185, 15 A. 

2 R. P.— 14 



& E. Ann. Cas. 54, 113 X. W. 941; 
Ranney v. Childs, 96 Kan. 483, 
152 Pac. 621; Sutton v. Head, 86 
Ky. 156, 9 Am. St. Rep. 274, 5 S. W. 
410; Chesapeake & Ohio Ry. Co. 
V. May, 157 Ky. 708, 163 S. W. 
1112. De Logny's Heirs v. Mercer, 
43 La. Ann. 205 (semble); Leader 
v. La Flamme, 111 Me. 242, 88 
Atl. 859; Phoenix Ins. Co. v. Con- 
tinental Ins. Co., 87 N. Y. 400 
(dictum); Dexter v. Beard, 130 
X. Y. 549, 29 X. E. 983; Denman 
V Prince, 40 Barb. (N. Y.) 213; 
Dey V. Prentice, 90 Hun (X. Y.) 
27, 35 X. Y. Supp. 563; Easter v. 
Little Miami R. Co., 14 Ohio St. 
48 (dictum) ; Huston v. Cincin- 
nati, & Z. R. Co., 21 Ohio St. 
236; Pittsburg, C. & St. L. Ry. 
Co. V. Bosworth, 46 Ohio St. 81, 
2 L. R. A. 199, 18 X. E. 533 
(dictum); Hickey v. Lake Shore, 
& M. S. Ry. Co., 51 Ohio St. 40, 
2.3. L. R. A. 396, 46 Am. St. Rep. 
545, 36 N. E. 672 (dictum) St. 
Andrews' Church Appeals, 67 Pa. 
St. 512; Landell v. Hamilton, 175 
Pa. St. 327, 34 L. R A. 227, 34 
Atl. 663; Electric City Land & Im- 
provement Co. V. West Ridge Coal 



1406 



Real Property. 



[§ 390 



states the English view appears to have been adopted/'* 
Occasionally a covenant of an affirmative character 
appears to have been regarded as enforcible in equity, 
on the same theoiy on which negative or restrictive 



Co., 187 Pa. St. 500, 41 Atl. 458; 
Wooliscroft V. Norton, 15 Wis. 
198. Crawford v. Witherbee, 77 
Wis. 419, 9 L. R. A. 561, 46 N. W. 
545. 

14. West Virginia Transpor- 
tation Co. y Ohio River Pipe Line 
Co., 22 W. Va. 600; Brewer v. 
MarshaH, 18 N. J. Eq. 337, 19 
N. J. Eq. 537 (dictum) ; Tardy 
V. Creasy, 81 Va. 553, 59 Am. Rep. 
676; Costigan v Pennsylvania R. 
Co., 54 N. J. L. 233, 23 Atl. 810; 
Lynn v. Mount Savage Iron Co., 
34 Md. 603 (semble). 

It has been said quite recently, 
by the New York Court of Ap- 
peals, that the burden of a cov- 
enant will not ordinarily run with 
the land, two or three covenants 
being however referred to as ex- 
ceptions to this rule. Miller v. 
Clary, 210 N. Y. 127, 103 N. E. 
1115. Compare IMorehouse v. 
Woodruif, 218 N. Y. 494, 113 N. E. 
512. 

In Massachusetts, apart from 
the cases of landlord and tenant, 
the burden of a covenant will not 
run with the land, as a general 
rule, it has been said, unless "the 
(covenant either creates a ser- 
vitude or a restriction in the 
nature of a servitude in favor 
of a neighboring parcel, or else 
is in some way incident to and 
inseparable from such a servi- 
tude; or, if attached to the dom- 
inant estate, appears to be the 
quid pro quo for the easement 



enjoyed." Holmes, S. J., in Lin- 
coln V. Burrage, 177 Mass. 378, 52 
L. R. A. 110, 59 N. E. 67;. Com- 
pare Norcross v. James, 140 Mass. 
188, 2 N. E. 946. Morse v. Aldrich, 
19 Pick. (Mass.) 449, and Bronson 
v. Coffin, 108 Mass. 175, 118 Mass. 
156, 11 Am. Rep. 335, which seem 
to favor the running of the bur- 
den. The later decisions in this 
state upon this subject, especially 
those in which the opinion of the 
court was delivered by Holmes, 
C. J., are in accord with the views 
expounded by him in his work 
"The Common Law," pp. 392-406. 

14. Gilmer v. Mobile, & M. Ry. 
Co., 79 Ala. 569, 58 Am. Rep. 
623; Bartlett v. State, — Ind. 
— , 114 N. E. 692; Louisville H. 
& St. L. Rwy Co. V. Baskett, — 
(Ky.) — , 121 3. W. 957; Kneale 
V. Price, 29 Mo. App. 227; Bur- 
bank V. Pillsbury, 48 N. H. 475; 
Pittsburg C, & St. L. Ry. Co. v. 
Bosworth, 46 Ohio St. 81, 2 L. R. 
A. 199, 18 N. E. 533. 

In Carnegie Realty Co. v. Caro- 
lina C, & 0. Ry. Co., 136 Tenn. 
300, 189 S. W. 371, it was held 
that a transfer did not impose 
the burden of the covenant on the 
transferee if the latter did not 
make any claim under the trans- 
fer and did not take possession. 
This does not accord with the 
view ordinarily asserted in con- 
nection with the running of cov- 
enants in leases. See 1 Tiffany. 
I^andlord & Ten., p. 975. 



<^ 391] CovEXANTs RuxNixG WiTH Land. 1407 

covenants are so regarded, as against a purchaser 
with notice of the covenant. ^^'^ 

The fact that the burden of a covenant passes 
to the transferee is not, it would seem, sufficient in 
itself to relieve the original covenantor from liability 
thereon, the same principle being applicable as in 
the case of landlord and tenant.^^ In several cases, 
however, the covenantor has been regarded as immune 
from liability for violations occurring after he has 
parted with title, on a construction of the language 
to this effect, as being in accord with the presumable 
intention of the parties to the covenant.^** 

While ordinarily the cases do not assert any re- 
quirement that the transferee of land have notice of 
a covenant made by a previous o^^^ler, in order that 
he may be bound thereby, they occasionall}' do so ;^*^^ 
and the courts, it is conceived, would be reluctant to 
impose liability upon one under a covenant of which he 
had neither actual or constructive notice. Usually 
the transferee of land would be chargeable with notice 
of the covenant by reason of the fact that it occurs in 
a conveyance in the chain of title, or in a conveyance 
of adjoining land made by a previous owner whose 
name appears in the chain of title. 

§ 391. Privity of estate. In order that the burden 
of a covenant run with the land, there must be, it is 
generally stated, a "i)rivity of estate" between the 
covenantor and covenantee. ^'^ This expression, as used 

14a. Post, § 395, note 17. 124 N. Y. 120, 21 Am. St. Rep. 

15. See cnte, § 54(d). 652, 26 N. E. 275; BoUes v. Pecos 

16. Carr v. Lowry's Adm'x, 27 Irrig. Co., — N. Mex. — , 167 Pac. 
Pa. St. 257; Rickey v. Lake Shore 280. 

& M. S. Ry. Co., 51 Ohio St. 40, 16a. See cases cited Post, § 

23 L. R. A. 396, 46 Am. St. Rep. 393, note 76. 

545, 36 N. E. 672; Sexauer v. Wil- 17. Spence v. Mobile, & M. Ry. 

son, 136 Iowa, 357, 14 L. R. A. Co., 79 Ala. 576; Hiazlett v. Sin- 

(N. S.) 185, 15 A. & E. Ann. Cas. clair, 76 Ind. 488, 40 Am. Rep. 

54, 113 N. W. 941; Clark v. Devoe, 254; Lyon v. Parker, 45 Me. 474; 



1408 



Real Peoperty. 



H 391 



in connection with covenants, other than in leases, 
running with estates in fee simple, refers apparently 
to the relation between the grantor and grantee of such 
an estate at the time of the conveyance. In other 
words, in order that there be such privity of estate that 
the burden of a covenant may run, the covenant must 
be entered into at the time of the making of a con- 
veyance by the covenantee to the covenantor, or vice 
versa^^ Accordingly, except perhaps in two or three 
states,^^ the requisite privity exists in the case of a 
covenant by a grantor to do or not to do something on 
land retained by him, adjoining that conveyed, so that 
one to whom the former is subsequently conveyed by 
him may be bound by the covenant;-^ and it also exists 



Hurd V. Curtis, 19 Pick. (Mass.) 
459; Morse v. Aldrich, 19 Pick. 
(Mass.) 449; Bronson v. Coffin, 
108 Mass. 175, 118 Mass. 156, 11 
Am. Rep. 254; Sharp v. Cheatham, 
88 Mo. 498; Wheeler v Schad, 7 
Nev. 204; Cole v. Hughes, 54 N. 
Y. 444; Nye v. Hoyle, 120 N. Y. 
195, 24 N. E. 1; Easter v. Little 
Miami R. Co., 14 Ohio St. 48. 
Town of Middletown v. Newport 
Hospital, 16 R. I. 319, 15 Atl. 
800; Hurxthal v. St. Lawrence 
etc., Co., 53 W. Va. 87, 97 Am. St. 
Rep. 954, 44 S. E. 520. 

18. Gilmer v. .Mobile, & M. R. 
Co., 79 Ala. 569; Fresno Canal & 
Irrigation Co. v. Rowell, 80 Cal. 
114, 13 Am. St. Rep. 112, 22 Pac. 
53; Conduitt v. Ross, 102 Ind. 
166, 26 N. E. 198; Indianapolis 
Water Co. v. Nulte, 126 Ind. 373, 
26 N. E. 72; Louisville, H. & St. 
L. Ry. Co. V. Baskett, — Ky. — . 
121 S. W. 957; Smith v. Kelley, 56 
Me. 64; Burbank v. Pillsbury, 48 
N. H. 475; Harsha v. Reid, 45 
N. Y. 415; Lawrence v. Whitney, 



115 N. Y. 410, 5 L. R. A. 417, 
22 N. E. 174; Louisville & N. 
R Co V Webster, 106 Tenn. 586. 
61 S. W. 1018. 

19. /'o.vf, this section, note 28. 

20. Fitch V. Johnson, 104 111. 
Ill; Scott V. Burton, 2 Ashm. 
(Pa.) 324; Crawford v. Witherbee, 
77 Wis. 419, 9 L. R. A. 561, 46 N. 
W. 545; Bronson v. Coffin, 108 
Mass. 175, 11 Am. Rep. 335; Haz- 
lett v. Sinclair, 76 Ind. 488, 40 
Am. Rep. 254; Easter v. Little 
Miami R. Co., 14 Ohio St. 48.— 
the last three cases, however, in- 
volving covenants by the grantor 
to fence, which might be regarded 
as involving the grant of an ease- 
ment. See ante, § 357. 

It is to be observed that the 
burden of the covenant does not 
necessarily pass with the land in 
connection with which the privity 
arises; that is, in the case re- 
ferred to in the text, the privity 
arises in connection with the land 
first conveyed, while the burden 
of the covenant runs with that 



<^ 391] Covenants Running With Land. 1409 

in the more ordinary case of a covenant by the grantee 
of land as to something to be done or not to be done 
by him on the land conveyed, so that his subsequent 
transferee may be bound thereby. On the other hand, 
an agreement by various mill owners as to the use of 
■water will not bind their assigns, since there is no 
privity between them.-^ And a covenant made after 
a conveyance, though between the parties thereto, 
has been held not to be supported by such privity of 
estate that the burden will run.^^ 

The exact basis of this requirement that the 
parties to the covenant stand in the relation of grantor 
and grantee in order that the covenant may run, 
does not clearly appear.--'' As before indicated, by 
some authorities, such a requirement exists in order 
that even the benefit of a covenant may run.^^ In the 
case of a covenant in a lease, the running of the 
covenant is ordinarily, as we have before seen, closely 
associated with the existence of a privity of estate 
between the interested parties,^^ and this may have 

last conveyed. See Brewer v. Cal. 476, with which, however, 

Marshall, 18 N. J. Eq. 337, 19 N. Fresno Canal & Irrigation Co. v. 

J. Eq. 537; Waterbury v. Head, Rowell, 80 Cal. 114, 13 Am. St. 

12 N. Y. St. Rep. 361; Clark v. Rep. 112, 22 Pac. 53, does not 

Devoe, 124 N. Y. 120, 21 Am. St. appear to be in accord. 

Rep. 652, 26 N. E. 275, as ex- 22. Inhabitants of Plymouth v. 

plained in Dexter v. Beard, 130 Carver, 16 Pick. (Mass.) 183; 

N Y. 549, 29 N. E. 983. Smith v. Kelley, 56 Me. 64. Wheel- 

21. Kurd V. Curtis, 19 Pick. er v. Schad, 7 Nev. 204. But if 

(Mass.) 459; Lawrence v. Whit- the covenant and conveyance are 

ney, 115 N. Y. 410, 5 L. R. A. parts of the same transaction, the 

417, 22 N. E. 174. In Pennsyl- fact that they are in separate 

vania it is held that the require- instruments is immaterial. Sims 

ment of privity is subject to ex- Covenants, 198; Hills v. Miller, 

ceptions, and that, without any 3 Paige (N. Y.) 254; Robbins v. 

such privity, covenants by owners Webb, 68 Ala. 393 (semble.) 

of separate tracts of riparian land 22a. See a suggestive editorial 

as to the use of the water power note in 15 Columbia Law Rev. 

will bind their assignees. Horn v. at p. 55. 

Miller, 136 Pa. 640, 9 L. R. A. 23 See ante, § 389, note 11. 

810, 20 Atl. 706. To the same 24. Ante, § 56. 
effect, see Weill v. Baldwin, 64 



1410 Real Property. [§ 391 

operated to suggest that in no case can tlie burden of 
a covenant run in tlie absence of such privity.^-^ Privity 
of estate, however, as between a grantor and grantee 
in fee simple has a meaning different from that which 
it has as between lessor and lessee, and their suc- 
cessors in interest. In the latter case, privity of 
estate means the simultaneous ownership by both 
parties of estates in the land, while in the former case 
it can mean merely succession in ownership. It was 
occasionally used in the latter sense by Coke,^" and 
perhaps other early authorities,-' particularly in con- 
nection with the law of warranty, and conceding the 
necessity'' of privity of estate in order that the burden 
of a covenant, not contained in a lease, may run with 
the land, it was reasonable to regard this requirement 
as satisfied by the succession in ownership which was 
included under this designation by the earlier writers. 
In at least two states the conveyance of an estate in 
the land, as distinguished from the grant of an ease- 
ment therein,^^ has been held not to furnish the privity 
of estate necessary to the creation of a covenant which 
will run with the land,-^ the theory being, apparently, 
that a mere succession in interest is not sufficient for 

25. In Hurd v. Curtis, 19 Pick. 27. See the opinion of Holmes, 
459, in which the necessity of such C. J., in Norcross v. James, 140 
privity is asserted in reference Mass. 188, 2 N. E. 946, and Holmes, 
to a covenant by a fee simple "The Common Law," 395-400. 
owner, not in a lease, the court re- 28. Post, this section, note 30. 
fers to Webb v. Russell, 3 Term. 29. Los Angeles Terminal Land 
Rep. 402, which involved a coven- Co. v. Muir, 136 Cal. 36, 68 Pac. 
ant in a lease. 308; Berryman v. Hotel Savoy 

26. Co. Litt. 271a, 272b, 273, Co., 160 Cal. 559, 37 L. R. A. (N. 
352a, 385a. In Whittingham's S.) 5, 117 Pac. 677; Norcross v. 
Case, 8 Co. Rep. 84, it is said James, 140 Mass. 188, 2 N. E. 
"there are three manner of privi- 946. In the latter case it is said 
ties, soil, privity in blood, privi- by Holmes, J., in delivering the 
ty in estate, and privity in law. opinion of the court, that the 
* * * Privities in estate are, as statement that there must be 
joint tenants, husband and wife, "privity of estate between the 
donor and donee, lessor and covenantor and the covenantee, 
lessee." only means that the covenant 



§ 391] 



Covenants Kunning With Land. 



1411 



this purpose, but that the simultaneous existence of 
two distinct interests in the land, in the covenantor 
and covenantee respectively, is necessary.^^* 

Grant of easement. The requirement of privity 



of estate is satisfied if the covenant accompanies a 
grant by the owner of land of a mere easement therein, 
he retaining the land."'^ Accordingly, it has been held 
that the burden of a covenant made upon the grant 
of a water privilege,^ ^ or upon the grant of a railroad 



must impose such a burden on the 
land of the covenantor as to be in 
substance, or to carry with it, a 
grant of an easement or quasi 
easement, or must be in aid of 
such a grant." This statement 
accords with the view of the sub- 
ject elsewhere presented by this 
learned jurist, (see "The Com- 
mon Law," at p. 388 et seq.), but 
does not accord with the ordinary 
judicial view. With this state- 
ment may be compared a state- 
ment emanating from the same 
court at a much earlier period. 
"The stipulations in the indenture 
cannot be construed as grants and 
covenants at the same time. If 
they were grants, then an action 
of covenant is not the proper 
remedy for the violation of them; 
and if covenants, the assignee is 
not bound for want of privity of 
estate between the parties." Per 
Wilde, J., in Hurd v. Curtis, 19 
Pick. (Mass.) 459. 

29a. In Morse v. Aldrich, 19 
Pick. (Mass.) 449, above cited, in 
which the running of a covenant 
created in connection with the 
grant of an easement, was ap- 
parently first recognized, the de- 
cision appears to be based on 
the analogy of a lease, it being 



said that "privity exists between 
the grantor and grantee, where 
a grant is made of any subor- 
dinate interest in land; the re- 
version or residue of the estate 
being reserved by the grantor, all 
covenants in support of the grant 
or in relation to the beneficial 
enjoyment of it, are real cove- 
nants and will bind the assignee." 

30. Gilmer v. Mobile & M. Ry. 
Co. 79 Ala. 569; Sterling Hydrau- 
lic Co. V. Williams, 66 111. 393; 
Fitch V. Johnson, 104 111. Ill; 
Bronson v. Coffin, 108 Mass. 156, 
11 Am. Rep. 335; Lincoln v. Bur- 
rage, 177 Mass. 378, 52 L. R. A. 
110, 59 N. E. 67; Crawford v. 
Witherbee, 77 Wis. 419, 9 L. R. 
A. 561, 46 N. W. 545. A covenant 
created in connection with an 
casement was held to run, even 
though not entered into till after 
the grant of the easement. Morse 
V. Aldrich, 19 Pick. (Mass.) 449. 
Contra, Smith v. Kelley, 56 Me. 
64; Wheeler v. Schad, 7 Nev. 204. 
::04. 

31. Farmers' High Line Canal 
& Reservoir Co. v. New Hamp- 
shire Real Estate Co., 40 Colo. 
467, 92 Pac. 290 (semble) ; Fitch 
v. Johnson. 104 111. 111. Nye v. 



1412 



Eeal Property. 



[§ 392 



right of way,"^- will bind a subsequent transferee of tbe 
land or of the easement."" And the grant of an ease- 
ment as regards the construction and utilization of a 
party wall will support the running of a covenant as 
to compensation for the use of the wall.^^ 

§ 392. The nature of the covenajit. We have, in 
connection with the discussion of covenants in leases 
which run with the land,''' referred to the difficulty, if 
not impossibility, of framing a rule for the determina- 
tion of whether a covenant is such as to touch and 
concern the land so as to run therewith. ' Ordinarily, 
however, a covenant is regarded as touching and con- 
cerning the land if it is of value to the covenantee by 



Hoyle, 120 N. Y. 195, 24 N. E. 1; 
IMorchouse v. Woodruff, 218 N. Y. 
494, 113 N. E. 512; Norfleet v. 
Cromwell, 64 N. C. 1; Noonan v. 
Orton, 4 Wis. 335; Wooliscroft 
V. Norton, 15 Wis. 198. But see 
Miller v. Clary, 210 N. Y. 127, 103 
N. E. 1114; Barringer v. Virginia 
Trust Co., 132 N. C. 409, 43 S. 
E. 910. 

So a covenant which was made 
in connection with a gas and oil 
lease, a grant apparently of a 
profit a prendre, was held to run. 
Indiana, etc., Oil Co. v. Hinton, 
159 Ind. 398, 64 N. E. 224; Har- 
bert V. Hope Natural Gas Co., 76 
W. Va. 207, 84 S. E. 770. And 
see Munro v. Syracuse, L. & N 
R. Co., 200 N. Y. 224, 93 N. E. 
P16, and comment thereon in 11 
Columbia Law Rev. at p. 384. 

32. St. Louis, I. M. & S. Ry. 
Co. V. O'Baugh, 49 Ark. 418, 5 
S. W. 711; Dorsey v. St. Louis, 
A. & T. H. R. Co., 58 111. 65; Mid- 
land Ry. Co. V. Fisher, 125 Ind. 



19, 8 L. R. A. 604, 21 Am. St. Rep. 
189, 24 N. E. 756; Peden v. Chi- 
cago. R. I. & P. Ry. Co., 73 Iowa. 
328, 5 Am. St. Rep. 6S0, 35 N. W. 
424; Kentucky Cent. R. Co. v. 
Kenney, 82 Ky. 154; Ford v. Ore- 
gon Elec. R. Co., 60 Ore. 278, 36 
L. R. A. (N. S.) 358, Ann. Cas. 
1914A, 243, 117 Pac. 809; Lydick 
V. Baltimore & 0. R. Co., 17 W. 
Va. 427. 

33. Dorsey v. St. Louis, A. & 
T. H. R. Co., 58 111. 65; Fitch v. 
Johnson, 104 111. Ill; Midland 
Ry. Co. V. Fisher, 125 Ind. 19, 8 
L. R. A. 604, 21 Am. St. Rep. 189, 
24 N. E. 756; Kentucky Cent. R. 
Co. V. Kenney. 82 Ky. 154; Ly- 
Gick V. Baltimore & O. R. Co., 17 
W. Va. 427. So the benefit may 
pass with a subsequent grant of 
the water power. Sterling Hy- 
draulic Co. V. Wniiams, 66 111. 

34. Post, § 393. 

35. See ante, § 56(b). 



§ 392] 



Covenants Running With Laxd. 



141^ 



reason of his oc<3upation of the land or by reason 
of an easement which he has in the land, or if it is 
a burden on the covenantor by reason of his occupation 
of the land. It has ))een held that a covenant to give 
free transportation to the covenantee,"" or to pay 
an incumbrance on the land,^^ is of such a personal 
nature as not to run. And the same view has been 
taken by some courts as to a covenant the purpose 
of which is to prevent competition in trade.^^ 

Among the covenants which have been most fre- 
quently considered as passing with the grant of a 



36. Morse v. Garner, 1 Strob, 
(S. C.) 514, 47 Am. Dec. 565; 
Dickey v. Kansas City & I. R. T. 
Ry. Co., 122 Mo. 223, 26 S. W. 685; 
Ruddick v. St. Louis, K. & N. W. 
Ry. Co., 116 Mo. 25, 22 S. W. 499, 
38 Am. St. Rep. 570; Eddy v. 
Hinnant, 82 Tex. 354, 18 S. W. 
562. So, in the case of a cove- 
nant by the grantee of an ease- 
ment to give its transportation 
business to the grantor, a ferry 
company, it was held that the 
covenant would not run, since it 
did not affect the enjoyment of 
the easement, or of the land in 
which the easement was granted, 
but was purely for the benefit 
of the owner of the ferry. Wig- 
gins Ferry Co. v. Ohio & M. Ry. 
Co., 94 111. 83. Compare Munro 
\. Syracuse, L. S. & N. R. Co., 
200 N. Y. 224, 93 N. E. 516. 

37. Glinn v. Canby, 24 Md. 
127; Scholten v. Barber, 217 111. 



148, 75 X. E. 460; Graber v. Dun- 
can, 79 Ind. 565. The same view 
was taken of a covenant to pay 
to the covenantee a percentage 
of the net earnings of mining 
property, against the transferee 
of which it was sought to as- 
sert the covenant. Consolidated 
Arizona Smelting Co. v. Hinch- 
man, 212 Fed. 803, 129 C. C. A. 
267. 

38. Taylor v. Owen, 2 Blackf. 
(Ind.) 301; Kettle River R. Co. 
V. Eastern Ry. Co. of Minnesota. 
41 Minn. 461, 6 L. R. A. Ill, 43 
N. W. 469; Sjoblom v. Mark, 103 
Minn. 193, 114 N. W. 746; Tardy 
V. Creasy, 81 Va. 553, 59 Am. Rep. 
676; Thomas v. Hay ward, L. R. 
4 Exch. 311. Contra, Bobbins v. 
'•.Vebb, 68 Ala. 393; National Union 
Bank at Dover v. Segur, 39 N. 
J. Law 173; Norman v. Wells, 17 
Wend. (N. Y.) 136. 



1414 



Real Property. 



[§ 392 



fee-simple estate are those to repair a dam or canal,'^^ 
and to fence or to repair a fence.^° A covenant to 
maintain a station^ ^ or to stop trains^^ ^t a particular 
point has been held to rnn, as has a covenant to supply 
water^^ or gas*^ and to pay taxes.* ^ 

As previously stated/''' a covenant, contained in an 
instrument of lease, as to a thing not in esse, has been 



39. Howard Mfg. Co. v. Water 
Lot Co., 53 Ga. 689; Sterling Hy- 
draulic Co. V. Williams, 66 111 
393; Batavia Mfg Co. v. Newton 
Wagon Co., 91 111. 230; Maxon 
V. Lane, 102 Ind. 364, 1 N. E. 
796; Fowler v. Kent, 71 N. H. 
388, 52 Atl. 554; Nye v. Hoyle, 
120 N. Y. 195, 24 N. E. 1; Den- 
man V, Prince, 40 Barb. (N. Y.) 
213; Norfleet v. Cromwell, 64 N. 
C. 1; Carr v. Lowry's Adm'x, 27 
Fa. St. 257; Wooliscroft v. Nor- 
ton, 15 Wis. 198. 

40. Dorsey v. St. Louis, A. & T. 
H. R. Co., 58 111. 65; Midland Ry. 
Co. V. Fisher, 125 Ind. 19, 8 L. 
R. A. 604, 21 Am. St. Rep. 189, 
24 N. E. 756; Lake Erie & W. 
Ry. Co. V. Priest, 131 Ind. 413, 
31 N. E. 77; Sexauer v. Wilson, 
136 Iowa, 357, 14 L. R. A. (N. S.) 
185, 15 A. & E. Ann. Cas. 54, 113 
N. W. 357; Kentucky Cent. R. Co. 
V. Kenney, 82 Ky. 154; Chicago, 
M. & G. R. Co. V. Dodds & John- 
son, 167 Ky. ?24, 181 S. W. 666; 
Bronson v. Coffin, 188 Mass. 175, 
11 Am. Rep. 335, 118 Mass. 156; 
Countryman v. Deck, 13 Abb. N. 
C. (N. Y.) 110; Dey v. Prentice, 
90 Hun (N. Y.) 27, 35 N. Y. 
Supp. 563; Huston v. Cincinnati 
& Z. R. Co., 21 Ohio St. 236; 
Hickey v. Lake Shore & M. S. 
Ry. Co., 51 Ohio St 40, 23 L. 



R. A. 396, 46 Am. St. Rep. 545, 36 
N. E. 672; Kellogg v. Robinson, 
6 Vt. 276, 27 Am. Dec. 550. 

41. Georgia Southern Railroad 
V. Reeves, 64 Ga. 492; Reidsville, 
& S. E. R Co. V. Baxter, 13 Ga. 
App. 357, 79 S. E. 187; LouisviUe, 
H. & St. L. Ry. Co. v. Baskett. 
— (Ky.) — , 121 S. W. 957; Par- 
rott V. Atlantic, & N. C. R. R., 
165 N. C. 295, Ann. Cas. 1915D. 
165, 81 S. E. 348; Carnegie Realty 
Co. V. Carolina, Clinchfield, & 
Ohio Ry. Co., 136 Tenn. 300, 189 
S. W. 371. 

42. Gilmer v. R. Co., 79 Ala. 
569; Ford v. Oregon Elec. R. Co., 
60 Ore. 278, 36 L. R. A. (N. S.) 
358, Ann. Cas. 1914A, 280, 117 
Pac. 809. 

43. Atlanta, K. & N. Ry. Co. v. 
McKinney, 124 Ga. 929, 6 L. R. 
A. (N. S.) 436, 110 Am. St. Rep. 
215, 53 S. E. 701; Farmers' High 
Line Canal & Reservoir Co. v. 
New Hampshire Real Estate Co., 
40 Colo. 467, 92 Pac. 290. 

44. Indiana Natural Gas Co. v. 
Hinton, 159 Ind. 398, 64 N. E. 
224. 

45. Barron v. Whiteside, 89 Md. 
448, 43 Atl. 825; West Virginia, 
C. & P. R. Co. v. Mclntire, 44 
W. Va. 210, 28 S. E. 696. 

46. Ante, § 56(b). See 1 Tif- 
fany, Landlord & Ten., p. 892; 



§ 392] Covenants Running With Land. 1415 

frequently considered not to run unless ''assigns" are 
mentioned. Occasionally the same rule lias been as- 
serted in connection with such a covenant not contained 
in an instrument of lease.^^ 

The intention of the parties to the covenant that 
it shall run with the land is occasionally referred to 
as a consideration of importance in determining 
whether it' does run,^^ but in the great majority of 
cases no reference is made to this matter, the question 
whether the covenant runs being regarded as one to be 
determined by the consideration whether it touches 
and concerns the land. The correct rule appears to 
be that the parties to the covenant may, by indicating 
an intention to that effect, prevent the covenant from 
running, although it is such that othei-wise it would 
run,*^ wdiile if the covenant is one w^hich does not touch 
and concern the land, the parties cannot make it run 
by indicating an intention or desire that it shall run.^" 
Looked at from this point of view, the rule of Spencer's 
case, that a covenant in reference to a thing not in esse 
does not run unless assigns are mentioned, in so far 

editorial note, 15 Mich. Law Rev. ' thing not in esse, did not run, 

at p. 79. in the absence of the word 

47. Md. & Pa. R. Co., V. Silver, "assigns." 

110 Md. 510, 73 Atl. 297; Whalen 48. Milliken v. Hunter, 180 Ind. 

V. Baltimore, & 0. R. Co., 108 149, 100 N. E. 1041; Sexauer v. 

Md. 11, 17 L. R. A. (N. S.) 130, Wilson, 136 Iowa, 357, 14 L. R. A. 

129 Am. St. Rep. 423, 69 Atl. 390; (N. S.) 185, 15 Ann. Cas. 54, 113 

Duester v. Alvin, 74 Ore. 544, 145 N. W. 357; Brown v. Southern 

Pac. 660; Carnegie Realty Co. v. Pac. Co., 36 Ore. 128, 47 L. R. A. 

Carolina, C. & 0. Ry. Co., 136 409, 78 Am. St. Rep. 761, 58 Pac. 

Tenn. 300, 189 S. W. 371. But see 1104. 

Sexauer v. Wilson, 136 Iowa, 357, 49. Maryland Coal Co. v. Cum- 
14 L. R. A. (X. S.) 185, 15 A. berland, etc. R. Co., 41 Md. 343; 
& E. Ann. Cas. 54, 13 N. W. 941. Masury v. Southworlh, 9 Ohio St. 
Purvis V. Shuman, 273 111. 286, 348; Wilmurt v. McGrane, 16 App. 
112 N. E. 679. So in Hartung v. Div. 412, 45 N. Y. Supp. 32. 
Witte, 59 "Wis. 285, and Gulf, C. 50. Ackroyd v. Smith, 10 Com. 
& S. F. Ry. Co. v. Smith, 72 Tex. B. 164; Fresno Canal & Irr. Co. 
122; Brown v. Southern Pac. Co., v. Dunbar, 80 Cal. 530, 22 Pac. 
36 Ore. 128, 47 L. R. A. 409, 78 275. Gibson v. Holden, 115 111. 
Am. St. Rep. 761, 58 Pac. 1104, 199, 56 Am. Rep. 149, 3 N. E. 
It was held that a covenant to 282; Kettle River R. Co. v. East- 
build a fence, as concerning a ern R. Co. of Minnesota, 41 Minn. 



141G Real, Property. [§ 393 

as it is adopted in any state,^^ may be regarded as 
involving merely a rule of construction that a covenant 
of that character is to be regarded as intended to 
be personal, unless a contrary intention is shown by 
the mention of assigns. 

§ 393. Party wall agreements. Whether the stipu- 
lation, in a party wall agreement,-"'- that one of the 
two adjoining owners, parties thereto, upon using a 
wall built by the other upon the division line, shall 
pay to the latter part of the cost of the wall, is a 
covenant which runs w4th the land, has been the sub- 
ject of frequent discussion and adjudication.^" 

As before stated, the grant of an easement at the 
time of the making of a covenant is regarded as fur- 
nishing the "privity of estate" necessary to enable a 
covenant to run with the land, and such a grant of an 
easement appears to occur in the case of a party wall 
agreement. If the wall is regarded as belonging to 
both the land owners immediately upon its construction, 
the agreement in effect involves a grant, to take effect 
upon the construction of the wall, by the non builder 
to the builder, of an easement to use the former's 
half of the wall for purposes of support, and also a 
grant, to take effect subsequently, by the builder to 
the non builder, of an easement to use the former's 
half of the wall for purposes of support; in other 
words, it involves the grant of cross easements of 
support.^^ If the wall is regarded as belonging to 

461, 6 L. R. A. Ill, 43 N. W. 469; 53. The authorities on the 

Glenn v. Canby, 24 Md. 127; Brew- subject, previous to 1903, are con- 

er V. Marshall, 18 N. J. Eq. 337, veniently grouped in a note in 66 

19 N. J. Eq. 537, 97 Am. Dec. L. R. A. at p. 673. The subject 

679; Wilmurt v. McGrane, 16 N. Is discussed, in a most discrim- 

Y. App. Div. 45 X. Y. S. 32; Mas- inating manner, with references 

ury V. Southworth, 9 Ohio St. 348; to the cases by Professor Ralph 

Louisville & N. R. Co. v. Webster, W. Aigler, in 10 Mich. Law Rev. 

106 Tenn. 586, 61 S. W. 1018. at p. 186. 

51. Ante, this section, notes 46, 54. Roche v. Ullman, 104 111. 
47. 1; King v. Wight, 155 Mass. 444. 

52. Ante, § 356. 29 N. E. 644; Kimm v. Griffin, 67 



§ 393] 



Covenants Running With Land. 



1417 



the landowner who builds it, until the other pays 
to him part of the cost thereof, there is a grant of 
cross easements of support, to take effect when such 
payment is made, and title to part of the wall ac- 
cordingly vests in the non builder, and there is also 
a grant, by the non builder to the builder, of an ease- 
ment to maintain the wall in part on the former's 
land.^^ 

Running* of benefit. The right to compensation 



under the agreement for the use of the wall is by 
some cases considered to appertain to the land, and to 
pass to a transferee of the proprietor who built the 
wall,^*' while by others it is regarded as personal to 
such proprietor, so as not to pass to his transferee.^" 



Minn. 25, 64 Am. St. Rep. 385, 69 
N. W. 634. 

55. Conduitt v. Ross, 102 Ind. 
166; King v. Wight, 155 Mass. 
444, 29 X. E. 644. 

56. Rugg V. Lemley, 78 Ark. 
65, 115 Am. St. Rep. 17, 93 S. 
W. 570; Eberly v. Behrend, 20 D. 
C. 215; Ferguson v. Worrall, 31 
Ky. Law Rep. 219, 9 L. R. A. (N. 
S.) 1261, 101 S. W. 966; Savage 
V. Mason, 3 Cush. (Mass.) 500; 
King V. Wight, 155 Mass. 444, 
29 N. E. 644; Kimm v. Griffin, 67 
Minn. 25, 64 Am. St. Rep. 385, 69 
N. W. 634; Piatt v. Eggleston, 20 
Ohio St. 414. See the remarks 
by Holmes, C. J., in Lincoln v. 
Burrage, 177 Mass. 378,, 52 L. R. 
A. 110, 59 N. E. 67, adverse to the 
view that, while the burden of 
such a covenant runs with the 
land, the benefit thereof can be 
regarded as "in gross" or per- 
sonal to the covenantee. 

In order that the transfe'Tee of 
the builder be able to recover 
upon the contract to pay part of 
the cost of the wall upon using it. 



the party wall agreement must, 
it has been held in Massachusetts, 
be under the seal of the other 
party, as otherwise the builder 
acquires, not an easement, but a 
mere license to build on the 
other land, and no privity exists 
to support the running of the 
covenant. Joy v. Boston Penny 
Sav. Bank, 115 Mass. 60. Even 
if the agreement is not under 
seal, the transferee of one tract, 
by accepting a conveyance bind- 
ing him to pay a part of the cost 
of the wall, becomes liable ac- 
cordingly. Maine v. Cumston, 98 
Mass. 317. 

57. Kenny v. Mackenzie, 12 
Ont. App. 346; Crater v. McCor- 
mick, 4 Colo. 197; Conduitt v. 
Ross. 102 Ind. 166, 26 N. E. 198; 
Mayer v. Martin, 83 Miss. 322, 35 
So. 218 (dictum) ; Cole v. Hughes. 
54 N. Y. 444; Lea's Appeal, 9 
Pa. St. 504; Todd v. Stokes, 10 
Pa. St. 155; Parsons v. Baltimore 
Building & Loan Ass'n, 44 W. 
Va. 335, 67 Am. St. Rep. 769, 29 
S. E. 999. 



1418 Real Property. [§ 393 

The right to compensation has occasionally been con- 
sidered to be personal to the builder, not passing with 
the land, if the ownership of half the wall, by the 
express terms of the agreement, vests immediately on 
its construction, contrary to the general rule, in the 
owner of the other land, though he cannot use it 
till he pays his share,^^ the theory being that, in 
such case, the promise of the non builder is merely 
to reimburse the builder in part for his expenditure, 
the performance of which promise has no effect on the 
land. In at least one case, in which the title to no part 
of the wall was regarded as vesting in the non builder 
until payment was made by him, the right of the trans- 
feree of the builder to receive the payment was based 
on the theorv% not that the benefit of the covenant ran 
with the land, but rather that he was the vendor of 
part of the wall.°^ 

The fact that an intention appears in the agree- 
ment that the covenant shall run with the land, as when 
it is so stated,^" or even when the agreement is in 
terms made binding on assigns,^ ^ has occasionally been 

In New York, it seems, how- 18 111. App. 439. Pillsbury v. Mor- 

ever, that the right to compensa- ris, 54 Minn. 492, 56 N. W. 170. 

tion passes with the land if the And Professor Aigler's discussion, 

covenant is general in terms, re- 10 Mich. Law Rev. at p. 195. 

ferring to the possible construe- 59. Gibson v. Holden, 115 111. 

tion of the wall by either party. 199, 56 Am. Rep. 133, 3 N. E. 

Mott V. Oppenheimer, 135 N. Y. 272. See Rugg v. Lemley, 78 

312, 17 L. R. A. 409, 31 N. E. Ark. 65, 115 Am. St. Rep. 17, 93 

1097; Sebald v. Mulholland, 155 S. W. 570; Piatt v. Eggleston, 20 

N Y. 455, 50 N. E. 260; Craw- Ohio St. 414. 

ford v. Krollpfeiffer, 195 N. Y. 60. Jebeles etc. Confectionery 

185, 133 Am. St. Rep. 783, 88 Co. v. Brown, 147 Ala. 593, 11 Ann. 

N. E. 29. Cas. 525, 41 So. 626; Adams v. 

58. Gibson v. Holden, 115 111. Noble, 120 Mich. 545, 79 N. W. 

199, 56 Am. Rep. 133, 3 N. E. 810; Loyal Mystic Legion v. Jones, 

272; McChesney v. Davis, 86 111. 73 Neb. 342, 102 N. W. 621. 

App. 380; Bloch v. Isham, 28 Ind. 61. Southworth v. Perring, 71 

37. See Mickel v. York, 175 111. Kan. 755, 2 L. R. A. (N. S.) 87, 

62, 51 N. E. 848; Tomblin v. Fish, 114 Am. St. Rep. 527, 81 Pac. 



§ 393] Covenants Running With Land. 1419 

referred to in support of a decision that in the par- 
ticular case the benefit passed, while conversely the 
absence of any such showing of intention has been 
referred to in support of a contrary decision.'^- 

E" /en though the benefit of the covenant would 
otherwise pass, the party building the wall may, it 
has been held, upon the grant of his parcel, reserve 
the right to compensation on account of the use 
which may be subsequently made of the wall by the 
adjoining proprietor.'"-^ 

Occasionally the benefit of the stipulation for 
pajTBent of part of the cost of the wall has been re- 
garded as passing to a grantee of the builder of the 
wall, not on the theory that it is a covenant running 
with the land, but because the instrument by which the 
land was conveyed also transferred in terms the 
benefit of the stipulation,^'^ or on the theory, apparently, 
that a transfer in terms of the land is to be construed 
as also intended to transfer the benefit of the stipula- 
tion, as if it were so stated.^ 

In one or two cases the grantee of the builder 
appears to be regarded as entitled to recover part 
of the cost of the wall on the theory, not of contract, 
but rather of quasi contract, that is, that the person 
making use of another's wall is under an implied 

481, 82 Pac. 785; King v. Wight, 63. Conduitt v. Ross, 102 Ind. 

155 Mass. 444, 29 X. E. 644; Hoff- 166, 26 X. E. 198; Pillsbury v. 

man v. Dickson, 47 Wash. 431, Morris, 54 Minn. 432, 56 X. W. 

125 Am. St. Rep. 907, 15 Ann. 170. 

Cas. 173, 92 Pac. 272, 93 Pac. 523. 64. Keating v. Korfhage, 88 

Sandberg v. Rowland, 51 Wash. Mo. 524; Parsons v. Baltimore 

7, 97 Pac. 1087. See Loyal Mystic Bldg. & L. Ass'n, 44 W. Va. 335. 

Legion v. Jones, 73 Xeb. 342, 102 29 S. E. 999, 67 Am. St. Rep. 769; 

X. W. 621; Weyman v. Ringold, 1 Ellinsburg Lodge Xo. 20 v. Col- 

Bradf. (X. Y. Surr.) 40. lins, 68 Wash. 94, 122 Pac. 602. 

62. Conduitt v. Ross, 102 Ind. 65. See Roche v. Ullman, 104 

166, 26 X. E. 198; Behrens v. 111. 11; Sharp v. Cheatham, 88 Mo. 

Hoxie, 26 111. App. 417. See Mott 498, 57 Am. Rep. 433. Mott v. 

V. Oppenhiemer, 135 N. Y. 312, Oppenheimer, 135 N. Y. 312, 17 

17 L. R. A. 409, 31 X. E. 1097. L. R. A. 409, 31 N. E. 1097. 



1420 Real Property. [§ 393 

assumpsit to make compensation to the owner of the 
wall.^^ 

The statutes in regard to party walls"' have 
ordinarily been construed as entitling the grantee of 
the builder of the wall to enforce the statutory liability 
for a portion of the cost of the wall/'^ But the user of 
the wall by the adjoining lot o^\^ler matures the ob- 
ligation, so that the right to compensation does not 
pass by a subsequent conveyance of the land.*'^ 

Running of the burden. Agreements between 



owners of adjoining pieces of land that, in case of 
the erection by either of them of a party wall upon 
the division line, a part on each tract, the other will, 
if he subsequently uses such wall, pay his share of 
the cost, have usually been held to bind a subsequent 
transferee of either owner for a part of the cost upon 
his user of such wall previously erected by the owner 
of the other property,'*^ though there are states in 
which such liability on the part of the transferee 
is denied."^ The fact that the party wall agreement 

66. Post, § 393, note 77. 115 III. 199, 56 Am. Rep. 146, 3 

67. Ante, § 365. N. E. 282; Conduitt v. Ross, 102 

68. Pfrommer v. Taylor, 27 Ind. 166, 26 N. E. 198; Ferguson 
Del. 113, 86 Atl. 212; Halpine v. WorraU, 31 Ky. L. Rep. 219, 9 
V. Barr, 21 Dist. Col. 331; Thorn- L. R. A (X. S.) 1261, 101 S. W. 
son V. Curtis, 28 Iowa, 229; Irwin 966; Savage v. Mason, 3 Cush. 
V. Peterson, 25 La. Ann. 300; (Alass.) 500; Standish v. Law- 
Hunt V. Ambruster, 17 N. J. Eq. rence, 111 Mass. Ill; Richardson 
208; Knight v. Beenken, 30 Pa. v. Tobey, 121 Mass. 457; King v. 
372; Vollmer's Appeal, 61 Pa. 118; Wight, 155 Mass. 444, 29 N. E. 
Contra under an earlier Pennsyl- 644; National Life Ins. Co. of 
vania statute, Dannaker v. Riley, ]\Iontpelier v. Lee, 75 Minn. 157, 
14 Pa. 435. 77 N. W. 794; Burr v. Lamaster, 

69. Eberly v. Behrend, 9 30 Neb. 688, 9 L. R. A. 637, 27 Am. 
Mackey (20 D. C.) 215; Lea v. St. Rep. 428, 46 N. W. 1015; Gar- 
Jones, 23 Pa. Super. Ct. 587, 209 mire v. Willy, 36 Neb. 340, 54 N. 
Pa. 22, 57 Atl. 1113. W. 562; Hall v. Geyer, 14 Ohio 

70. Roche v. UUman, 104 111. Cir. Ct. R. 229, 7 Ohio Dec. 436. 
11; Mackin v. Haven, 187 111. 480, 71. Sharp v. Cheatham, 88 Mo. 
58 N. E. 448; Tomblin v. Fish, 498; Nalle v. Paggi, — (Tex ) — , 
18 HI. App. 439; Gibson v. Holden, 9 S. W. 205. In Nalle v. Paggi, 



§ 398] 



Co\'EXANTS RrxxiXG With Laxd. 



1421 



is ill terms binding on the assigns of the i)arties has 
been referred to as making the burden of the covenant 
run with the land'- and a statement that the covenant 
is to run with the land would no doubt have quite as 
great an effect.'" 

Such an agreement is, it seems, prima facie, con- 
strued as providing for reimbursement by the person 
alone who uses the wall for the construction of a 
building; and consequently the original covenantor, if 
he does not use the wall, is not liable on his covenant,'^ 
nor is one to whom the land is transferred after it has 
been built on by his grantor ordinarily so liable.'" 



SI Tex. 201, 1 L. R. A. 33, 16 S. 
W. 932, it was held that the non 
builder, party to the agreement, 
having contracted to pay half the 
value of the wall when he used it, 
became personally liable for half 
the value immediately on trans- 
ferring his land to another, and 
thus becoming incapable of using 
the wall. 

In New York it is held that the 
covenant to pay part of the cost 
runs with the land, if the agree- 
ment is general in terms, con- 
templating the possible construc- 
tion of the wall by either party in 
the future, without reference to 
any present intention of building 
a wall, while it does not run 
when it involves a specific agree- 
ment that, if the party named 
build the wall, the other party 
shall pay part of the cost thereof 
upon using it. Sebald v. Mulhol- 
land, 155 X. Y. 455, 50 X. E. 260; 
Crawford v. Krollpfeiffer, 195 X. 
Y. 185, 88 N. E. 29. 

72. Roche v. Ulman, 104 111. 
11; South worth v. Perring, 71 
Kan. 755, 81 Pac. 481, 2 L. R. A. 
(N. S.) 87, 114 Am. St. Rep. 527, 
82 Pac. 785; King v. Wright, 155 

2 R. P.— 15 



-Mass. 444, 29 X. E. 644; Kimm v. 
Griffin, 67 .Minn. 25, 64 Am. St. 
Rep. 385, 69 X. W. 634; Hoffman 
v. Dickson, 47 Wash. 431, 125 Am. 
St. Rep. 907, 15 Ann. Cas. 173. 
92 Pac. 272, 93 Pac. 523. 

73. Jebeles h Colias Confec- 
tionery Co. V. Brown, 147 Ala. 
593, 11 Ann. Cas. 525, 41 So. 626; 
Roche V. Ulman, 104 111. 11; Rein- 
hardt v. Holmes, 143 Mo. App. 
212, 127 S. W. 611; Adams v. 
Xoble. 120 -Mich. 545, 79 X. W. 
810. 

There is one decision to the 
effect that although the covenant 
was not previously one the bur- 
den of which would run with the 
land, its character in this regard 
is changed if a subsequent con- 
veyance by the covenant is in 
terms subject to the party wall 
agreement. Ellinsburg Lodge Xo. 
20, I. 0. F. C. V. Collins, 68 Wash. 
94, 122 Pac. 602. 

74. Standish v. Lawrence, 111 
Mass. Ill; Jordan v. Kraft, 33 
Xeb. 844; Percival v. Colonial In v., 
Co., 140 Iowa, 275, 24 L. R. A. (X. 
S.) 293, 115 X. W. 941. 

75. Pfeiffer v. .Matthews, 161 
.Mass. 487, 42 Am. St. Rep. 435. 37 



1422 Eeal Peoperty. [^ 393 

Occasionally reference is made in the decisions to 
the existence in the particular case- of notice of the 
party wall agreement on the part of the person sought 
to be charged, as if lack of notice might prevent the 
running of the covenant as against him.'^'' And it 
may be assumed that the courts would hesitate to 
impose such liability on one who purchased the land 
without notice, actual or constructive, of the agree- 
ment. 

Occasionally the court, without reference to the doc- 
trine of covenants running with the land, appears to have 
implied an assumpsit, on the part of a subsequent 
grantee, taking with notice of his grantor's agreement 
that part of the cost of the wall shall be paid upon 
its user, to make payment accordingly, such assumpsit 
being implied in favor of the person, whether the 
original builder or his grantee, who owns the wall at 
the time of its user by the owner of the other prop- 
erty.'^'^ This implied assumpsit involves a liability, 

N. E. 571; First Nat. Bank v. 104 N. W. 607, it was held that 

Security Bank, 61 Minn. 25, 63 X. the grantee was not affected with 

W. 264. But in Iowa a grantee notice of the agreement by rea- 

who purchases with notice that son of the presence of the wall 

his grantor, who used the wall, on his land. This was however 

has not paid for it as agreed is a proceeding for an injunction, 

perhaps liable. Pew v. Buchanan, and the decision in favor of de- 

72 Iowa, 637, 34 N. W. 453. Per- fendant may presumably be re- 

cival V. Colonial Inv. Co., 140 garded as based on the theory 

Iowa, 275, 24 L. R. A. (N. S.) that the agreement created an 

293, 115 N. W. 941. equitable charge (Post, note 80) 

76. Lorenzi v. Starmarket, 19 which was effective as against 

Idaho, 614, 115 Pac. 490. See purchasers with notice only. 
Roche V. Ullman, 104 111. 11; Har- 77. Standish v. Lawrence, 111 

ris V. Dozier, 72 111. App. 542; Mass. Ill; Richardson v. Tobey, 

McChesney v. Davis, 86 111. App. 121 Mass. 457, 23 Am. Rep. 283; 

380; Richardson v. Tobey, 121 Brown v. Pentz, 1 Abb. App. Dec. 

Mass. 457, 23 Am. Rep. 283; Gar- 227, per McCouu, J., Burlock v. 

mire v. Willy, 36 Neb. 340, 54 N. Peck, 2 Duer 90; and see Piatt v. 

W. 562. Eggleston, 20 Ohio St. 414; Na- 

In Scottish American Mortgage tional Life Ins. Co. v. Lee, 75 

Co. V. Russell, 20 S. Dak. 310, Minn. 157, 77 N. W. 794. 



§ 393] Covenants Kuxning With Land. 1423 

not in contract, }3ut in quasi contract. But ordinarily, 
as before stated,'^^ no liability is imposed upon one 
using a wall placed in part on his land by another, in 
the absence of an agreement on his part, or on the 
part of his predecessor in title, to make compensation 
in the case of its use by him. The theory of implied as- 
sumpsit, above referred to, appears to be that adopted 
in England, in order to impose liability on a sub- 
sequent grantee of the covenantor.'''* 

In a few cases it has been said that an agreement 
of the character referred to has the effect of creating 
an equitable charge,^*' or lien,^^ so that a grantee 
claiming under the non builder, if he takes with notice, 
express or implied, of the agreement to pay for the 
use of the w^all, takes subject thereto. And occasionally 
such an agreement has apparently been regarded as 
creating an equitable easement as regards the pay- 
ment of part of the cost of the wall.^- 

The view that by such an agreement an equitable 
lien or charge is created involves the proposition merely 
that, in case the wall built by the owner of one tract 
is used by the owner of the other, the liability for 
the stipulated portion of the cost of the wall may 

78. Ante, § 356 ment for lien) ; Parsons v. Bal- 

79. Christie v. Mitchison, 36 timore Building & L. Ass'n, 44 W. 
Law Times N. S. 621; Irving v. Va. 335, 67 Am. St. Rep. 769, 29 
Turnbull (1900), 2 Q. B. 129. The N. E. 999. 

latter case is criticized in edi- In one state a grantee has been 

torial notes, 14 Harv. Law Rev. at regarded, by force of the statute 

p. 297, and 1 Columbia Law Rev. as to party walls, as taking tha 

at p. 257. land subject to a lien for a por- 

80. Sharp v. Cheatham, 88 Mo. tion of the cost of the wall, if 
498, 57 Am. Rep. 433; Keating v. it was used by his grantor. Pew 
Korfhage, 88 Mo. 254; Stehr v. v. Buchanan, 72 Iowa, 637, 34 
Raben, 33 Neb. 437, 50 N. W. 327. N. W. 453. 

81. Nelson v. McEwen, 35 111. 82. Sharp v. Cheatham, 88 -Mo. 
App. 100; First Nat. Bank v. Se- 498, 57 Am. Rep. 433; Keating v. 
curity Bank, 61 Minn. 25, 63 N. W. Korfhage, 88 Mo. 254; Stehr v. 
264. Arnold v. Chamberlain, 14 Raben, 33 Neb. 437, 50 N. W. 327. 
Tex. Civ. App. 634 (express agree- 



1424 Real Property. [§ 393 

be enforced against the land by foreclosure sale 
But whether such a lien should be recognized in the 
absence of any language showing an intention to cre- 
ate it may well be questioned. And the theory of 
equitable charge or lien furnishes no ground for im- 
posing a personal liability upon a subsequent grantee 
of the land,*'^ though it is not, it seems, inconsistent 
with the existence of such liability.*^ That is, a grantee 
may in some jurisdictions be personally liable as upon 
a covenant running with the land, and the covenantee 
at the same time have an equitable lien upon his land 
for part of the cost of the wall. The view that by 
such an agreement an equitable easement is created 
appears to involve the proposition that as one who 
takes with notice of an agreement by his predecessor 
in title that the land shall not be used in a certain 
way may be restrained from making such use,^^*" so 
one who takes with notice of an agreement that the 
land shall not be used without the making of a certain 
payment, may be restrained from making such use 
without making the payment. ^-^ In so far as the 
theory of equitable easement, however, may involve the 
assumption that the right to use the wall is conditional 
upon payment of part of the cost thereof, it does 
not accord with the construction sometimes, perhaps 
usually, placed upon a party wall agreement, that the 
right to use the wall is not dependent upon payment 
of the stipulated part of the cost.***^ 

83. See Keating v. Korfhage, 88 Garmire v. Willy, 36 Xeb. 340, 
Mo. 524; Parsons v. Baltimore .54 N. W. 562. 

Bldg. & L. Ass'n, 44 W. Va. 335, 84a. Po.^t, § 394. 

67 Am. St. Rep. 769, 29 N. E. 999. 85. See Gibson v. Holden, 115 

84. First Nat. Bank v. Security 111. 199, 56 Am. Rep. 146, 3 X. E. 
Bank, 61 Minn. 25, 63 N. W. 624; 282. 

Roche V. unman, 104 111. 11; Har- 86. Ante, § 361, note 39. 

ris V. Dozier, 72 111. App. 542. 



CHAPTER XV. 

RESTRICI'IONS ENFORCEABLE IN EQUITY. 

§ 394. General considerations. 

394. Character of agreement. 

396. Theory of enforcement. 

397. Persons subject to restriction. 

398. Notice. 

399. Persons entitled to enforce restriction. 

400. Existence of general plan. 

401. Defenses to enforcement. 

§ 394. General considerations. Even in jurisdic- 
tions where, as in England, the burden of a covenant 
does not run with the land, an agreement as to the 
use of land may, under certain circumstances, affect 
a subsequent purchaser of the land who takes with 
notice of the agreement, equity in such case enjoining 
a use of the land in violation of such agreement.^ As 
stated in the leading case on the subject, ^'"^ "the ques- 
tion is not whether the covenant runs with the land, 
but whether a party shall be pennitted to use the land 

1. See, on the subject of this Heights Co. of Baltimore, 70 Md. 

chapter, an excellent article by 493, 3 L. R. A. 579, 17 Atl. 372; 

Professor George L. Clark, in IG Feabody Heights Co. of Baltimore 

Mich. Law Rev. at p. 90. City v. Willson, 82 Md. 186, 36 

la. Tulk V. Moxhay, 2 Phillips, L. R. A. 393, 32 Atl. 386, 1077; 
774. See, to the same effect, De Whitney v. Union Ry. Co., 11 Gray 
Mattes V. Gibson, 4 De G. & J. (Mass.) 359, 71 Am. Dec. 715; 
276; Luker v. Dennis, 7 Ch. Div. Watrous v. Allen, 57 Mich. 362, 
227; McMahon v. Williams, 79 58 Am. St. Rep. 363, 24 N. W. 
Ala. 288; Bryant v. Grosse, 155 104; Burbank v. Pillsbury, 48 N. 
Cal. 132, 99 Pac. 99; Frye v. H. 475, 97 Am. Dec. 633; Kirk- 
Partridge, 82 111. 267; Hutchin- Patrick v. Peshine, 24 N. J. Eq. 
sun V. Ulrich, 145 111. 336, 21 L. 206; Coudert v. Sayre, 46 N. J. 
R. A. 391, 34 N. E. 556; Wieg- Eq. 386, 19 Atl. 190; Hayes v. 
man v. Kusel. 270 HI. 520, 110 Waverly & P. Ry. Co., 51 N. J. 
N. E. 886; Newbold v. Peabody Eq. 345; Cotton v. Cresse, 80 N. 

(14:^:,) 



142G 



Real Property. 



[§ 394 



in a manner inconsistent with the contract entered 
into by his vendor, and with notice of which he pur- 
chased." The person thus affected by the agreement 
as to the use of the land may be a purchaser, a lessee,^ 
or a mere occupant of the land under license.^ Such 
an agreement may occur in connection with a con- 
veyance of land, restricting the grantor, or the sub- 
sequent transferees of the grantor, as regards the 
use of land retained by him,^ or restricting the grantee 
as regards the use of the land conveyed.^ Or it may 
be independent of any conveyance of land, being merely 
an agreement between adjoining owners as regards the 
use of their land.'' 



J. Eq. 540, 85 Atl. 600; Wootton 
V. Seltzer, 84 N. J. Eq. 207, 93 
Atl. 1087; Tallmadge v. East River 
Bank, 26 N. Y. 105; Trustees of 
Columbia College v. Lynch, 70 N. 
Y. 440; Hodge v. Sloan, 107 N. 
Y. 244, 1 Am. St. Rep. 816, 17 N. 
E. 335; Hills v. Miller, 3 Paige 
(N. Y.) 254, 24 Am. Dec. 218; 
Brown v. Huber, 80 Ohio St. 183, 
88 N. E. 322; St. Andrew's Luth- 
eran Church's Appeal, 67 Pa. St. 
512; Town of Middletown v. New- 
port Hospital, 16 R. I. 319, 15 
Atl. 800; Ball v. Milliken, 31 R. 
I. 36, 37 L. R. A. (N. S.) 623, Ann. 
Cas. 1912A, 1334, 76 Atl. 789. 

2. Wilson V. Hart, 1 Ch. App. 
463; Spicer v. Martin, 14 App. 
Cas. 12; Parker v. Nightingale, 6 
Allen (Mass.) 341, 83 Am. Dec. 
632. 

3. Mander v. Falcke [1891] 2 
Ch. 554. 

4. See e. g., Halle v. Newbold, 
69 Md. 265; Bridgewater v. Ocean 
City R. Co., 63 N. J. Eq. 798, 52 
Atl. 1130; Brown v. Huber, 80 
Ohio St. 183, 88 N. E. 322; Water- 



town V. Cowen, 4 Paige (N. Y.) 
510, 27 Am. Dec. 80; Nicoll v. 
Fenning, L. R. 19 Ch. Div. 258. 

5. See e. g., Weil v. Hill, 193 
Ala. 407, 69 So. 438; Los Angeles 
Terminal Land Co. v. Muir, 136 
Cal. 36, 68 Pac. 310; Judd v. Rob- 
inson, 41 Colo. 222, 124 Am. St. 
Rep. 128, 14 A. & E. Ann. Cas. 
1018, 92 Pac. 724; Hays v. St. 
Paul M. E. Church, 196 111. 633, 
63 N. E. 1040; Peck v. Conway, 
119 Mass. 546; Watrous v. Allen, 
57 Mich. 362, 58 Am. Rep. 363, 24 
N. W. 104; Coughlin v. Barker, 
46 Mo. App. 54; Condert v. Sayre, 
46 N. J. Eq. 386, 10 Atl. 190; 
Phoenix Ins. Co. v. Continental 
Ins. Co., 87 N. Y. 400; Smith v. 
Graham, 217 N. Y. 655, 112 N. E. 
1076; Clark v. Martin, 49 Pa. 
289. 

6. Bryan v. Grosse, 155 Cal. 
132, 99 Pac. 499; Codman v. Brad- 
ley, 201 Mass. 361, 87 N. E. 591, 
Ericksen v. Tapert, 172 Mich. 457, 
138 N. W. 330; Supplee v. Cohen, 
81 N. J. Eq. 500, 86 Atl. 366; 
Cotton V. Cresse, 80 N. J. Eq. 540, 



§ 394] 



Equitable Restrictions. 



1427 



That the grantor of land is expressly given a 
right of forfeiture in case of the breach by the grantee 
of a provision restrictive of the use to be made of the 
land does not of itself j^reclude the enforcement of such 
a provision by injunction."^ 

The courts do not favor restrictions upon the utiliza- 
tion of land, and that a particular mode of utilization is 
excluded by agreement must clearly appear.'" If this 
does appear, the fact that the person seeking relief can- 
not show that such user of the land will cause him actual 
damage is usually immaterial,^'' though it may happen 
that the particular violation of the agreement sought to 
be restrained is so unimportant that equity will not inter- 
vene.'^^ The court will give relief when necessary by 
a mandatory as well as by a prohibitory injunction.'^ ^ 



49 L. R. A. (N. S.) 357, 85 Atl. 
600; Trustees of Columbia Col- 
lege V. Lynch, 70 N. Y. 440; Lewis 
V. Gollner, 129 N. Y. 227, 26 Am. 
St. Rep. 516, 29 N. E. 81. 

7. Weil V. Hill, 193 Ala. 407, 
69 So. 438; Watrous v. Allen, 57 
Mich. 362, 58 Am. Rep. 363, 24 
N. W. 104; Hopkins v. Smith, 162 
Mass. 444, 38 N. E. 1122; Wilson 
V. Massachusetts Institute of 
Technology, 188 Mass. 565, 75 N. 
E. 128; Hayes v, W^verly & P. 
R. Co., 51 N. J. Eq. 345, 27 Atl. 
648; Ball v. Milliken, 31 R. I. 
36, 37 L. R. A. (N. S.) 623, 76 Atl. 
789; Clark v. Martin, 49 Pa. 289; 
Duester v. Alvin, 74 Ore. 544, 145 
Pac. 660. 

7a. Gerling v. Lain, 269 111. 
337, 109 N. E. 972; Brandenburg 
V. Lager, 272 111. 622, 112 N. E. 
321; Van Duyn v. H. S. Chase & 
Co., 149 Iowa, 222, 128 N. W. 
300; Melson v. Ormsby, 169 Iowa, 
522, 151 N. W. 817; Casterton v. 
Plotkin, 188 Mich. 333, 154 N. 
W. 151; Godley v. Weisman, 133 



Minn. 1, L. R. A. 1917A, 333, 157 
N. W. 711, 158 N. W. 333; Scharer 
V. Pantler, 127 Mo. App. 433, 105 
S. W. 668; Fortesque v. Carroll. 
76 N. J. Eq. 583, 75 Atl. 923; 
Goater v. Ely, 80 N. J. Eq. 40, 82 
Atl. 611; Hunt v. Held, — Ohio 
— , 107 N. E. 765; McCloskey v. 
Kirk, 243 Pa. 319, 90 Atl. 73. 

7b. Hartman v. Wells, 257 111. 
167, 100 N. E. 500; Morrow v. 
Hasselman, 69 N. J. Eq. 612, 61 
Atl. 369; Supplee v. Cohen, 80 
i\. J. Eq. 83, 83 Atl. 373; Spilling 
V. Hutcheson, 111 Va. 179, 68 S. 
E. 250. See Doherty v. Allman, 
3 App. Cds. at p. 720, per Lord 
Cairns. 

7c. Barton v. iSlifer, 72 N. J. 
Eq. 812, 66 Atl. 899; Smith v. 
Spencer, 81 N. J. Eq. 389, 87 Atl. 
158; Forsee v. Jackson, 192 Mo. 
App. 408, 182 S. W. 783. 

7d. Hartman v. Wells, 257 111. 
167, 100 N. E. 500; Codman v. 
Bradley, 201 Mass. 361, 87 N. E. 
591; Stewart v. Finkclstone, 206 
Mass. 28, 28 L. R. A. (N. S.) 634, 



1428 Real Peopeety. [§ 395 

It has been decided in one state that a covenant 
restrictive of the use of land constitutes a property 
right in the land restricted, so as to entitle the bene- 
ficiaries under the covenant to compensation if such 
land is devoted to a public use which involves a vio 
lation of the covenant,^ and in another state the interest 
of one entitled to enforce such a covenant has been 
regarded as a right of which he cannot be deprived by 
legislation without compensation.^ Elsewhere, how- 
ever, such a covenant has been regarded as a nullity as 
against the state or a state agency seeking to utilize 
the land for a public or quasi public purpose, with 
the result that a neighboring property owner cannot 
assert any claim for damages in such case, though the 
public use is of a character which is in terms excluded 
by the covenant/'" 

§ 395. Character of agreement. In England, an 
agreement will thus be enforced in equity against a 
subsequent purchaser or occupant only when it is 
restrictive of the use of the land, and not when it calls 
for the performance of some positive act by the occu- 
pant thereof.^^ And in the great majority of the 

138 Am. St. Rep. 370, 92 N. E. Co., 92 Ohio St. 471, 112 N. E. 

37; AHen v. Barrett, 213 Mass. 507; U. S. v. Certain Lands, 112 

36, 99 N. E. 575; Compton Hill Fed. 622; Wharton v. United 

Imp. Co. V. Strauch, 162 Mo. App. States, 153 Fed. 876. 
76, 141 S. W. 1159; Maine v. Mul- 10. Havwood v. Brunswick 

liken, 176 Mich. 443, 142 N. W. Permanent Benefit Building Soc. 

782; Spilling v. Hutcheson, 111 8 J. B. Div. 403; Austerberry v. 

Va. 179, 68 S. E. 250. Corporation of Oldham, 29 Ch. 

8. Flynn v. New York, W. & Div. 750; London & S. W. Ry. 
B. R. Co., 218 N. Y. 140, 112 N. E. Co. v. Gomm, 20 Ch. Div. 562. See 
913. De Gray \:. Monmouth Beach Club 

9. Riverbank Improvement Co. House Co., 50 X. J. Eq. 329. That 
V. Chadwick, 228 Mass. 242, 117 only a restrictive agreement will 
N. E. 244. thus be enforced, see also Miller 

9a. Doan v. Cleveland Short v. Clary, 210 N. Y. 127, 103 X. 
Line Ry. Co., 92 Ohio St. 461, 112 E. 1114 {semble). 
N. E. 505; Ward v. Cleveland Ry. 



§ 395] 



Equitable Restrictioxs. 



1429 



cases in this country the agreement enforced has been 
restrictive. Thus, agreements not to use specified limd 
for building/^ or for a particular business/^ or for 
other than residence purposes/^ have been thus en- 
forced, as have agreements not to build within a cer- 
tain distance of the street/"* or to erect no building 
of less than a certain cost/^ or of a style of construc- 
tion other than that named. ^*^ In some cases/" how- 
ever, an affirmative agreement in connection with the 
land has been regarded as within the doctrine, with 
the effect that a purchaser from the promisor with 
notice of such an agreement, though he may not be 
personally liable for its non performance, takes the 
land subject to the possibility that a court of equity 
will enforce its performance, or reparation for its 
non performance, by a decree in reference to the 
land. So an agreement by which, if one uses a wall 
constructed by his adjoining owner, he is to pay a 



11. Tulk V. Moxhay, 2 Phillips, 
774. Wood V. Cooper (1894) 3 Ch. 
671; Herriok v. Marshall, 66 :\le. 
435; Peck v. Conway, 119 Mass. 
546; Lad;l v. City of Boston, 151 
Mass. 585, 21 Am. St. Rep. 
481, 24 N. E. 858; Phoe- 
nix Ins. Co. V. Continental Ins. 
Co., 87. X. Y. 400; Hennen v. De- 
veny, 71 W. Va. 629, L. R. A. 
1917A, 524, 77 S. E. 142. 

12. McMahon v. Williams, 79 
Ala. 288; Collins Mfg. Co.v. Marcy. 
25 Conn. 242; Watrous v. Allen, 
57 Mich. 362, 58 Am. Rep. 363, 
24 X. W. 104; Post v. Weil, 115 
.\. Y. 361; 5 L R. A. 422, 12 Am. 
St. Rep. 800, 22 X. E. 145; Stines 
V. Dorman. 25 Ohio St. 580. 

13. German v. Chapman, 7 Ch. 
Div. 271; Parker v. .Nightingale, 
6 Allen (Mass.) 341, 83 Am. Dec. 
632. Trustees of Columbia Col- 
lege V. Lynch, 70 N. Y. 440. 



14. Manners v. Johnson, 1 Ch. 
Div. 673; Coles v. Sims, 5 De Gex, 
M. & G. 1; Linzee v. Mixer, 101 
Mass. 512; Sanborn v. Rice, 129 
Mass. 387; Ogontz Land & Im- 
provement Co. V. Johnson, 168 Pa. 
St. 178, .31 Atl. 1008; Branden- 
burg V. Lager, 272 111. 622. 112 
N. E. 321. 

15. Bowes V. Law, L. R. 9 Eq. 
636. Page v. Murray, 46 X. J. Eq. 
325, 19 Atl. 11; Blakemore v. Stan- 
ley, 159 Mass. 6, 33 N. E. 689. 

16. Keening v. Ayling, 126 
Mass. 404; Landell v. Hamilton, 
177 Pa. St. 23, 35 Atl. 242; Clark 
V. Martin, 49 Pa. St. 289. 

17. Flege v. Covington & C. 
Elevated R. & Transfer & Bridge 
Co., 122 Ky. 348, 121 Am. St. Rep. 
463, 91 S. W. 738; Bailey v. Aga- 
wam Nat Bank, 190 Mass. 20, 3 
L. R. A. (X. S.) 98, 112 Am. St. 
Rep. 296, 5 A. & E. Ann. Cas. 



1430 Real Peopekty. [§ 395 

certain amount named, has occasionally been regarded 
as enforcible against the land in the hands of a pur- 
chaser with notice as an equitable rather than a legal 
claim. ^^ The adoption of this view, that even an 
affirmative agreement may be enforced as against a 
purchaser with notice, involves merely a necessity 
of regarding such an agreement, if for the payment 
of money by the promisor to the jDromisee, as cre- 
ating an equitable lien or charge on the lands, ^^ and 
if for the doing of another character of act, as justif}"- 
ing a decree for the- specific performance of the 
agreement. If the agreement neither calls for the 
payment of money nor is of such a character that 
specific perfonnance would otherwise be decreed, it 
would appear to be enforceable in equity as against 
such a subsequent purchaser to no greater extent than 
it is enforcible at law. Subject to such considerations, 
there would appear to be no objection to the applica- 
tion of the doctrine which we are now discussing to 
the case of an affirmative agreement, except as the 
particular court may regard it as impolitic thus to 
increase the burdens capable of imposition on land,^° 
According to a few decisions, the agreement, even 
though restrictive, in order to be thus enforced in 
equity against a subsequent purchaser, must ''touch 
and concern" land belonging to the person in favor of 
whom the agreement is made, by tending to the* phys- 
ical advantage of such land, it being insufficient that 

553, 76 N. E. 449; Childs v. Boston 18. Sharp v. Cheatham, 88 Mo. 

& M. R., 213 Mass. 91, 99 N. E. 498, 57 Am. Rep. 433; Burr v. 

957. Carson v. Percy, 57 Miss. 97; Lamaster, 30 Neb. 688, 9 L. R. A. 

Burbank v. Pillsbury, 48 N. H. 637, 27 Am. St. Rep. 428, 46 N. W. 

475; Gould v. Partridge, 52 N. Y. 1015. See ante. § 393, notes 82-85. 

App. Div. 40, 64 N. Y. Supp. 870 19. Post, § 661. 

(semble) ; Hlnchman v. Consol. 20. See article by Charles I. 

Arizona Smelting Co., 198 Fed. Giddings, Esq., In 5 Harv. Law 

^07 (semble). As adverse to the Rev. at p. 279; editorial note in 

enforcement of such an affirma- 18 Harv. Law Rev. at p. 214; 3 

tive covenant, see Miller v. Clary, Pomeroy, Eq. Jur. § 1295. 
210 N. Y. 127, 103 N. E. 1114. 



§ 395] Equitable Eestkictions. 1431 

it increases its value indirectly by preventing the use 
of the adjoining property for a competing business.^ ^ 
That such an agreement preventive of competition 
may be enforced against a subsequent purchaser with 
notice is however recognized or assumed in a number 
of cases.-- And admitting that the agreement is valid 
between the original parties thereto, the fact that its 
chief operation is to restrain competition appears to 
be hardly a sufficient reason for permitting a subse- 
quent purchaser with notice of the agreement to use 
the land in contravention thereof.^ ^ 

Statute of Frauds. The right thus to enforce 

an agreement in equity against a subsequent pur- 
chaser is, at least in some jurisdictions, independent 
of the mode or incidents of its execution. It need not 
be a covenant, that is, an agreement under seal, and 
it has usually been regarded as sufficient although oral 
merely, or merely inferred from the acceptance of a 
conveyance containing such a stipulation, or from re- 
presentations made upon the sale of land.^^ It is to 

21. Taylor v. Owen, 2 Blackf. ridge, 82 111. 267; Watrous v. 
(Ind.) 301 (semble); Norcross v. Allen, 57 Mich. 362, 58 Am. Rep. 
James, 140 Mass. 188, 2 N. E. 946; 363, 24 X. W. 104; Hodge v. Sloan, 
Brewer v. Marshall, 18 X. J. Eq. 107 N. Y. 244, 1 Am. St. Rep. 816, 
337, 19 N. J. Eq. 557; Kettle River 17 N. E. 335 (two judges dissent- 
R. Co. V. Eastern Ry. Co. of Minne- ing) ; Stines v. Dorman, 25 Ohio 
sota; 41 Minn. 461, 6 L. St. 580; Middletown, Town of, v. 
R. A. Ill, 43 X. W. 469; Tardy v. Newport Hospital, 16 R. I. 319, 
Creasy, 81 Va. 553 (two judges 333, 1 L. R. A. 191, 15 Atl. 800 
dissenting); West Virginia Rwy. (semble). See Sutton v. Head, 
V. Ohio River Pipe Line Co., 22 86 Ky. 156, 9 Am. St. Rep. 274, 
W. Va. 600. See Burdell v. Gran- 5 S. W. 410. 

di, 152 Cal. 376, 14 L. R. A. (N. S.) 23. See 17 Harv. Law Rev. at 

909, 125 Am. St. Rep. 61, 92 Pac. P 183. article by Prof J. B. Ames. 

1022. 24. Spicer v. Martin, 14 App. 

22. Catt v. Tourle, 4 Ch. App. Cas. 12; Renals v. Colishaw, 9 Ch. 
654; Holloway v. Hill (1902), 2 Div. 125, 11 Ch. Div. 866; Mac- 
Ch. 612; Robinson v. Webb, 68 Ala. kenzie v. Childers, 43 Ch. Div. 
397, 77 Ala. 176; McMahon v. Wil- 265; Nottingham Patent Brick & 
Hams, 79 Ala. 288; Frye v. Part- Tile Co. v. Butler, 15 Q. B. Div. 



1432 Real Property. [§ 395 

be regretted that the judicial expressions to this effect 
have not been accompanied by any explanation of 
why the agTeenient is not within the operation of the 
Statute of Frauds, a question as to which there ap- 
l)ears to be considerable room for discussion. 

In two or three states the view has been asserted 
that an agreement such as we are now considering 
involves the creation of an interest in land, within 
the local equivalent of the first section of the English 
statute.^" But in view of the fact that that statute 
contains a separate provision in reference to proof of the 
creation of an express trust, it might perhaps be 
questioned whether the first section was intended to 
apply to the creation of any equitable interest, and 
a like view might perhaps be taken of similar lan- 
guage occurring in a state statute. There is one ex- 
Illicit decision that an agreement restrictive of the 
use of land is not an agreement for the sale of an 
interest in land within the fourth section of the stat- 
ute,^^ and this seems a rational view, but a contrary 
view is asserted in another state. -^ There are two 
decisions denying that an agreement that land shall 
not be utilized in a particular way is one not to be 
performed within one year from the making thereof 

261, 16 Q. B. Div. 778; Wliitney 25. Wolfe v. Frost, 4 Sandf. 

V, Union Railway Co., 11 Gra\ C^i. (N. Y.) 72; Rice v. Roberts, 

(Mass.) 359, 71 Am. Dec. 715; 24 Wis. 461; McCusker v. Goode, 

Whittenton Mfg. Co. v. Staples. 185 Mass. 607, 71 N. E. 76; 

164 Mass. 319; Allen v. City of Sprague v. Kimball, 213 Mass. 

Detroit, 167 Mich. 464, 36 L. R. 380, 100 N. E. 622. And see Tib- 

A. (N. S.) 890, 133 N. W. 317; betts v. Tibbetts, 66 N. H. 360, 

Tallmadge v. East River Bank, 20 Atl. 979. 

26 N. Y. 105; Lewis v. Gollner, 26. Hall v. Solomon, 61 Conn. 

129 N. Y. 227, 26 Am. St. Rep. 476, 29 Am. St. Rep. 218, 23 Atl. 

516, 29 N. E. 81; Equitable Life 876. 

Ass'n Soc. of United States v. 27. Sprague v. Kimball, 213 

Brennan, 148 N. Y. 661, 43 N. 5. Mass. 380, 4 L. R. A. 962, 100 N. 

173; Lennig v. Ocean City Ass'n, E. 622; Clanton v. Scruggs, 95 

41 N. J. Eq. 606, 56 Am. Rep. Ala. 279, 10 So. 757. 
16, 7 Atl. 491. 



<§ 395] Equitable REsxRirTioxs, 1433 

Avitliiu the statute, one decision bein^- based on the 
theory that it may be performed within a year,-*^ and 
the other upon the theory that the provision does not 
apply to a negative contract.-'^ It is, however, difficult 
to see how such a contract not limited in time, is 
capable of performance in a year, nor is it clearly 
apparent that a negative contract does not call for 
performance to the same extent as a positive contract, 
for the purpose of this provision. In those jurisdic- 
tions, however, in which this provision as to agreements 
not to be performed within a year has been held not 
to apply to a contract based on an executed considera- 
tion, or to one which is to be entirely performed by 
one party within the year, an agreement incidental to 
the sale or conveyance of land would ordinarily not 
fall within its operation.'^"- 

Conceding that otherwise the agreement in refer- 
ence to the land would be within the Statute of Frauds, 
it has been suggested that a restrictive agreement, 
although oral, might on occasion be enforced on the 
theory of part performance,"^^ on that of fraud-*- or on 
that of estoppel."'" It would seem, however, somewhat 
difficult to bring every case of an oral restrictive 
agreement within the operation of either one of these 
doctrines. In case, for instance, one conveying land 
to another orally agrees, at the time of executing the 
conveyance, not to make a particular use of land re- 
tained by him, there would appear to be no room for 
the application of the doctrine of ])art performance, 
nor any sufficient basis for a finding of either estoppel 

28. Hall V. Solomon, 61 Conn. ing Co., 15.5 Cal. 402, 101 Pac. 
476, 29 Am. St. Rep. 218, 23 Atl. 297. 

876. 31. Williams, Vendor & Pur- 

29. Leinau v. Smart. 11 chaser (2nd Ed.) 494. 

Humph. (Tenn.) 308. 32. Hubbell v. Warren, 8 A'.len 

30. That a verbal agreement (Mass.) 173. 

not to use land for a certain 33. Lennig v. Ocean City Ass'n, 

purpose is within this provision, 41 X. J. Eq. 606, 56 Am. Rep. 16, 
see Long V. Cramer Meat & Pack- 7 Atl. 491; Woods v. Lowrance, 



1434 Real Property. [§ 396 

or frand.^^ The fact that one purchasing land mis- 
takenly supposes that an incidental stipulation entered 
into by the vendor is legally enforcible, should hardly 
operate to estop the vendor from asserting the con- 
trary, even though it appears that the former would 
not have made the purchase had he been correctly 
informed.^^ 

§ 396. Theory of enforcement. While the right to 
enforce in equity an agreement or covenant of a restric- 
tive character as against a subsequent purchaser with 
notice thereof is generally recognized, the judicial ex- 
pressions as to the principle underlying such enforce- 
ment are singularly inharmonious. In some cases, the 
doctrine appears to be regarded as merely an equitable 
application of a legal rule that the burden as well as the 
benefit of a covenant which touches and concerns the 
land will run with the land, a view which is necessarily 
restricted to such states as have adopted the rule that 
the burden of a covenant runs with the land at law.^" 
In a considerable number of cases the right of enforce- 
ment appears to be based on the theory that, in the 
view of a court of equity, an easement in the land 
is created by an agreement of this character.^^'^ 

49 Tex. Civ. App. 542, 109 S. W. Me. 242, 88 Atl. 859; Dawson v 

418. Western M. R. Co., 107 Md. 70, 

34. See Sprague v. Kimball, 14 L. R. A. (N. S.) 809, 126 Am. 
213 Mass. 380, 100 N. E. 622. St. Rep. 337, 15 Ann. Cas. 678, 68 

35. See Clanton v. Scruggs, 95 Atl. 301; Hogan v. Barry, i43 
Ala. 279, 10 So. 757. Mass. 538, 10 N. E. 253; Ladd v. 

36. Ante, § 390. City of Boston, 151 Mass. 585, 21 

37. McMahon v. Williams, 79 Am. St. Rep. 481, 24 N. E. 858; 
Ala. 288; Weil v. Hill, 193 Ala. Chase v. Walker, 167 Mass. 293, 
407, 69 So. 438; Tinker v. Forbes, 45 N. E. 916; Brown v. O'Brien, 
136 111. 221, 26 N. E. 503; Hutch- 168 Mass. 484, 47 N. E. 195; 
inson v. Ulrich, 145 111. 336, 21 L. Riverbank Improvement Co. v 
R. A. 391, 34 N. E. 556; Clark Chadwick, 228 Mass. 242, 117 N. 
V. McGee, 159 111. 518, 42 N. E. E. 244; Allen v. City of Detroit, 
965; Herrick v. Marshall, 66 Me. 167 Mich. 464, 133 N. W. 317, 36 
435; Leader v. La Flamme, 111 L. R. A. (N. S.) 890; Bowen v. 



§ 396] 



Equitable Restrictions. 



1435 



This latter theory has been adopted by the later 
English cases,^^ and has been there applied to the 
extent of holding that, as a legal easement requires 
a dominant as well as a servient tenement,^^ so an *' equi- 
table easement," requires a dominant tenement, that is, 
such an easement can be created by a restrictive cove- 
nant only if the covenantee has an interest in the 
land sought to be benefitted, with the result that if 
the covenantee has not such an interest, a purchaser 
from the covenantor, although taking with notice of the 
covenant, is not atfected thereby.^*^ 

The theory referred to, that a restrictive agree- 
ment operates to create an easement for the i^urposes 
of a court of equity, though favored by the later 
English cases, and frequently referred to with ap- 
proval by most respectable American courts, is by no 
means entirely satisfactory.^'^ ^ If what is in form a 



Smith, 76 N. J. Eq. 456, 74 Atl. 
675; Trustees of Columbia Col- 
lege V. Lynch, 70 N. Y. 440; Muz- 
zarelli v. Hulshizer, 163 Pa. St. 
643, 30 Atl. 291; Green v. Creigh- 
ton, 7 R. I. 9. 

38. The adoption of this view 
by the English courts dates from 
the dictum, entirely uncalled for, 
of Jessel, M. R., in London & 
Southwestern Ry. Co. v. Gomm, 
20 Ch. D. 562, that "the doctrine 
of Tulk V. Moxliay, 2 Phil. 774, 
rightly considered, appears to me 
to be either an extension in 
equity of the doctrine of Spen- 
cer's case to another line of 
cases, or else an extension in 
equity of the doctrine of negative 
easements." See, in support of 
this view, editcrial notes in^ 2S 
Harv. Law Rev. at p. 201, 31 Id. 
at p. S76. 

39. Ante, § 348. 

40. Formby v. Barker (1903), 



2 Ch. 539; :\lillbourn v. Lyons 
(1914), 1 Ch. 34; Lon:^on County 
Council v. Allen (1914), 3 K. B. 
642. In the latter case two of the 
three judges indicate dissatisfac- 
tion with the theory which com- 
pelled such a decision. 

Likewise, on the analogy of 
easements, it has, in Massachu- 
setts, been decided that the benefit 
of a restrictive agreement by the 
grantee of land would not pass on 
a subsequent conveyance of 
neighboring land in which the 
promisee had merely an undivid- 
ed interest, since a contrary view 
would involve in effect a reser- 
vation of an easement in favor of 
a person not of a party to the con- 
veyance, that is, the owner of the 
other undivided interest. Hazen 
v. Mathews, 184 Mass. 388, 68 N. 
E. 838. 

40a. The covenants thus en- 
forced against an assignee of the 



l-tSO Eeal Property. [§ 396 

contract not to use tlie land in a particular manner 
creates an easement as to the use of the land, it should, 
one would suppose, create it for the purposes of a 
court of law as well as of a court of equity. It is 
difficult to understand how language which, when under 
consideration in a court of equity, is regarded as cre- 
ating an easement can, when under consideration in a 
court of law, be regarded as creating a contract only.^^ 
It is no doubt true that an easement can be created by 
what are in form words of covenant,"'^ but that is by 
reason of the construction placed upon these 
words as being in effect words of grant, for the pur- 
liose of a court of law as well as of equity. It is 
somewhat noticeal)le that even courts which empha- 
size the theory of "equitable easement" for the pur- 
pose of making effective a restrictive covenant as 
against a subsequent purchaser of the land, ordinarily 
regard words of covenant restrictive of the use of 
land as creating, for other purposes, merely a cove- 
nant.^"^ That is, the courts ignore the possible operation 
of such words as creating an equitable easement 
rather than a covenant, except when it is convenient to 
regard them as creating such an easement for the pur- 
])ose of making them effective against a subsequent 
purchaser. 

The more satisfactory theory, it is conceived, in 
regard to the enforceability in equity of restrictive 

covenantor are, as hereafter stat-- case of a deviation of a few inches 
ed, usually restrictions upon the from a building line, or a re- 
character or location of the build- striction as to the use to be made 
ing to be erected, or business to of the land, or the cost of the 
be maintained, on the land, and building thereon, 
such covenants are, in some of the 41. See the remarks of Wilde, 
cases last cited, said to create J., in Hurd v. Curtis, 19 Pick, 
easements of light, air, and pros- (Mass.) 459, quoted ante, § 391, 
pect. They are, however enforced note 29. 
even when their violation could 42. Ante, § 361. 
not involve any interference with 43. See 1 Tilfany, Landlord & 
light, air, or prospect, as in the Tenant, § 123. 



<^ 396] Equitable Eestbictioxs. 1437 

agreements against purchasers with notice is that equi- 
ty regards such an agreement as vesting in tlie prom- 
isee a right to specific enforcement by means of an 
injunction or otherwise, not only as against the origi- 
nal promisor, but also as against a subsequent holder 
of the property, if not a purchaser for value without 
notice.^^ If the right to equitable relief could not thus 
be asserted as against a subse([uent holder of the 
property, the result would be that the promisee could 
be deprived of such right, in practically every case, 
by a collusive transfer on the i)art of the promisor. 
The doctrine, properly regarded, appears to be closely 
analagous to that by which the equitable right to spe- 
cific performance of a contract is enforced as against 
a subsequent holder of the property, not a bona fide 
purchaser for value, by a decree requiring him to make 
a conveyance in conformity to the contract, as well as 
to the doctrine that a trust may be enforced as against 
a purchaser from the trustee under like circumstances. 
Sucn a right as to the use of land, created by contract 
and capable of enforcement as against a subsequent 
holder of the land, resembles likewise an equitable lien 
created by a contract subjecting the land to a pecuniaiy 
claim l)y way of security for the claim. 

It has in England been decided that one who ac- 
quires the land by adverse possession takes it subject 
to a restrictive agreement to which it was subject in the 
hands of the rightful owner.^"^ This decision appears, 

44. See the discussion in Sug- at p. 119, 17 Harv. Law Rev. at 

den, Vendors & Purchasers (14th p. 415, 21 Id. 139; De Gray v. 

Ed.) 802 et seq. Maitland, Equity Monmouth Beach Club House Co., 

165; articles by Prof. J. B. Ames 50 X. J. Eq. 329, 24 Atl. 388; 

in 17 Harv. Law Rev. at p. 174, Cotton v. Cress3, 80 N. J. Eq. 

Lectures on Legal History, 381; 540, 85 Atl. 600. 49 L. R. A. (X. S.) 

by T. Cyprian Williams, Esq., in 357. 

51 Solicitors' Journal 141; by Pro- 45. Re Xisbet & Potts' Con- 

fesor Harlan F. Stone, in 18 Co- tract (1905), 1 Ch. 391, (1906) 1 

lumbia Law Rev. at p. 291; edi- ch. 386. 
torial notes in 4 Law Quart. Rev. 

2 R. P.— 16 



1438 Ebal Pkoperty. [§ 397 

to some extent at least, to be based on tbe theory, re- 
ferred to in the preceding paragraph, that the right 
created by such an agreement is in the nature of an 
easement. Attention has been called by an able writer^'' 
to the difficulty of harmonizing this decision, which in 
effect regards an equitable claimant as unaffected by 
the fact that the holder of the legal title is barred 
under the statute of limitation, with the rule*' that a 
cestui que trust is barred when the holder of the legal 
title is barred, and suggestions have been made that 
in view of this decision, the rule that a cestui que trust 
is barred when the holder of the legal title is barred 
must be regarded as having been superseded as a 
result of the language used in the Statute of Limita- 
tions now in force in that country.*^ 

§ 397. Persons subject to restriction. So far as 
the agreement which is sought to be enforced against a 
subsequent holder of the land concerns, as is almost in- 
variably the case, the use to be made of the land, it is 
a question of primary importance whether the agree- 
ment concerns the use to be made thereof by the prom- 
isor only, or the use to be made thereof by others as 
well. A use by a subsequent purchase cannot well be 
restrained if the agreement was intended to prevent 
the promisor only from making such use.*'' What the 
intention was in this regard is a question of construc- 
tion, but since it is ordinarily immaterial to the 
promisee who may make any particular use of the 
property, the presumption would seem to be, in the 
absence of a clear showing to the contrary, that such 
a use by any person whomsoever is intended,^'' and 

46. T. Cyprian Williams, Esq., 49. Kemp v. Bird,' 5 Ch. Div. 
in 51 Solicitors' Journal at pp. 974; Re Fawcett v. Holmes, 42 
141, 155. Ch. Div. 150; Brigg v. Thornton 

47. Ante. § 103, note 4. (1904), 1 Ch. 386; Pythian Castle 

48. Lightwood, Time Limits of Ass'n of Sacramento v. Daroux, 
Actions, 80; article by Charles 172 Cal. 510, 157 Pac. 594. 
Sweet, 19 Juridicial Review, 67. 50. See HoJge v. Sloan, 107 N. 



§ 398] 



Equitable Eestrictions. 



1439 



an intention to this effect would appear to be clearlT 
indicated by the fact that the agreement in terms 
binds the promisor's as;?igns,^^ or that the agreement 
is in an impersonal form, that the land shall not be 
used in a particular way. 

§ 398. Notice. As above stated, a restrictive agree- 
ment is enforced in equity against a subsequent pur- 
chaser only when he takes with notice thereof.^- Such 
notice may be either actual or constructive,^^ and the 
purchaser is, in accordance with the general rule as 
to notice,-^^ charged with notice of anything showing 
or imposing such a restriction which may be con- 
tained in a conveyance in the chain of title under 
which he claims,"" and whether such a conveyance is 
recorded is necessarily immaterial in this regard.^^ 



Y. 244, 1 Am. St. Rep. 816, 17 N. 
E. 335; Fuller v. Arms, 45 Vt. 400. 

51. Holloway Brothers v. Hill 
(1902), 2 Ch. 618. See Hartz v. 
Kales Realty Co., 178 Mich. 560, 
146 N. W. 160; Pavkovich v. 
Southern Pac. R. Co., 150 Cal. 
39, 87 Pac. 1097. 

In Los Angeles Terminal Land 
Co. V. Muir, 136 Cal. 36, 68 Pac. 
308, it appears to be considered 
that if the restriction does not 
in terms purport to bind assigns 
or grantees, it cannct be enforced 
against them. And see Pythian 
Castle Ass'n of Sacramento v. 
Daroux, 172 Cal. 510, 157 Pac. 
594; Wood V. Stehrer, 119 Md. 
143, 86 Atl. 128. 

52. Carter v. Williams, L. R. 9 
Eq. 678; Nottingham Co. v. Butler, 
16 Q. B. Div. 778, 787; Rowell v. 
Satchell (1903) 2 Ch. 212; Judd 
V. Robinson, 41 Colo. 222, 124 Am. 
St. Rep. 128, 14 Ann. Cas. 1018, 
92 Pac. 724; Washburn v. Miller, 



117 Mass. 376; Moller v. Presby- 
terian Hospital, 65 N. Y. App. Div. 
134. 

53. Wilson v. Hart, 1 Ch. App. 
463; Spicer v. Martin, 14 App. 
Cas. 12; Patman v. Harland, 17 
Ch. Div. 353. 

54. Post, § 572, 

55. Patman v. Harland, 17 Ch. 
Div. 353; W^iegman v. Kusel, 270 
111. 520, 110 N. E. 884; Duncan v. 
Central Passenger Ry. Co., 85 Ky. 
525, 4 S. W. 228; Peck v. Conway, 
119 Mass. 546; Oliver v. Kalick, 
223 Mass. 252, 111 N. E. 879; 
Zoller V. Goldberg, 183 Mich. 197, 
149 N. W. 089; Wabash, St. L. & 
■P. Ry. Co., 24 Mo. App. 199; 
Brewer v. Marshall, 19 N. J. Eq. 
537; Smith v. Graham, 217 N. Y. 
G55, 112 N. E. 1076*. See Norfleet 
V. Cromwell, 64 N. C. 1. 

56. Occasional statements that 
the purchaser is, in the particular 
.jcase, charged with notice of the 

agreement because the convey- 



1440 Eeal Property. [§ 398 

If, however, the agreement is contained in a conveyance 
which is not in the chain of title, but which was made 
by a prior owner of neighboring land, the question of 
its record may be material for the purpose of charging 
a purchaser with notice of the agreement, and such may 
also be the case when the agreement is not contained 
in a conveyance of land, but is incorporated in an 
independent instrument. The former case, that of an 
agreement contained in a conveyance not in the chain 
of title of the person against whom it is sought to en- 
force it, is elsewhere discussed,^' and the question of 
the record of an independent restrictive agreement 
will here alone be referred to. Whether such an agree- 
ment is entitled to be recorded, so that its record will 
affect the purchaser wnth constructive notice thereof 
is obviously a question to be determined by the lan- 
guage of the state recording law.'''* 

In accordance with the general equitable rule that 
a purchaser with notice from a ])urcliaser without 
notice takes free of the equity,-'^ the etfect of the ac- 
quisition of the property by one having no notice of 
the restrictive agreement is to put an end to the 
enforceability of the agreement as against the land.'"'^ 

There are in England occasional dicta^^ that a 
bona fide ])urcliaser for value of an e(|uitable, as dis- 
tinguished from a legal, estate, takes subject to the 
burden of a restrictive agreement, the element of notice 

ance in his chain of title in which Sjoblom v. Mark, 103 Minn. 193. 

it is contained is of record. 15 L. R. A. (N. S.) 1129, 114 N. 

(Schadt V. Brill, 173 Mich. 647, W. 746. 

45 L. R. A. (N. S.) 726, 139 N. 59. Post. § 575. 

W. 878; :\Iiller v. Klein, 177 Mo. 60. Roak v. Davis, 194 Mass. 

App. 557, 160 S. W. 562; Bowen v. 481, 80 N. E. 690; Wilkes v. 

Smith, 76 N. J. Eq. 456, 74 Atl. Spooner [1911] 2 K. B. 473. 

675) appear to be beside the mark. 61. London & S. W. Rwy. Co. 

57. Post, § 567(d). v. Gomm, 20 Ch. Div. 562; Rogers 

58. That it is entitled to record v. Hosegood [1900], 2 Ch. 388, 
see Bradley v. Walker, 138 N. Y. 405; Osborne v. Bradley [1903], 
291, 33 N. E. 279; Boyden v. Rob- 2 Ch. 446, 451. 

erts, 131 Wis. 659, 111 N. W. 701; 



§ 399] Equitable Restrictions. 1441 

being thus niaterijil only Avheii the agTeement is as- 
serted as against a purchaser of the legal estate. This 
accords with the rule generally stated, that the doc- 
trine of bona fide purchase for value does not operate 
to protect the purchaser of a merely equitable interest, 
but the soundness of the rule from the standpoint of 
principle may be doubted''- and, as has been remarked, 
it is difficult to see the justice of exempting the bona 
fde purchaser of a legal fee simple from the burden of 
a restrictive covenant while not exempting such a pur- 
chaser of an equitable fee simple.**^ 

§ 399. Persons entitled to enforce restriction. The 

person with whom the agreement was made, owning 
land in the neighborhood which might be benefitted by 
reason of the restriction, may no doubt proceed in 
equity for its enforcement. If on the other hand he 
has no land to be benefitted by the enforcement of the 
restriction, he cannot, by the weight of authority,^"* 

62. See article by Professor Law Rev. at p. 58, 27 Harv. Law 
J. B. Ames, in 1 Harv. Law Rev. at p. 493, 16 Mich. Law Rev. at 
at p. 8, et seq., Lectures on Legal p. 97. In Massachusetts it has 
History p. 263, et seq. heen decided that the original 

63. See article by Professor vendor, who has disposed of all 
Ames in 17 Harv. Law Rev. at his land, may properly join in 
p. 178, note. Lectures on Legal a suit by one of his vendaes 
History at p. 385. against another to enforce a rt- 

64. Forman v. Safe Deposit & striction. Riverbank Improve- 
Trust Co., 114 Md. 574, 80 Atl. ment Co. v. Bancroft, 209 Mass. 
i98; Genung v. Harvey, 79 N. J. 217, 34 L. R. A. (N. S.) 730, 95 
Eq. 57, 80 Atl. 955; St. Stephens X. E. 216. That the heirs of a 
Church V. Church of Transfigura- promisee who disposed of all his 
tion, 201 N. Y. 1; Los Angeles land cannot enforce the restric- 
University v. Swarth, 107 Fed. lion, see Graves v. Deterling, 120 
798, 54 L. R. A. 262, 46 C. C. A. N. Y. 447, 24 N. E. 655. 

047. See Trustees v. Lynch, 70 In England the fact that the 

N. Y. 440; Dana v. Wentworth, promisee had parted with all his 

111 Mass. 191. property was considered not to 

A contrary view is adopted in preclude him from enforcing tlio 

Van Sant v. Rose, 260 III. 401, restriction when its violation 

103 N. E. 194, criticized in 9 111. subjected him to a possible lia- 



1442 Eeal Property. [§ 399 

obtain such relief, a view which accords with the 
general practice of courts of equity, to give relief only 
in favor of one who shows an interest in the subject 
matter of the suit. 

As regards the right of one claiming under the 
person with whom the agreement was made, to enforce 
the agreement, the cases are usually to the effect that, 
provided the agreement was intended to benefit par- 
ticular land belonging to the promisee, rather than the 
promisee personally, and not otherwise, any pur- 
chaser of the whole or of part of that land is entitled 
to enforce the agreement to the same extent as the 
promisee himself could have enforced it.*^^ In such 
case the benefit of the agreement passes as incident to 
the land which the agreement was intended to benefit, 
in the same manner as the benefit of a covenant runs 
with the land at law.^^ The question ordinarily arises 
in connection with a restrictive agreement entered into 
by the grantee of land with his grantor, who subse- 
quently transfers adjoining land, in whole or in part, to 
another, who undertakes to assert the agreement as 
against the original grantee or one claiming under such 
grantee. In some cases the fact that the person with 
whom the agreement was made had at the time neigh- 
boring land which might be benefitted by compliance 
with the restriction appears to be regarded as sufficient 
to show that the agreement was intended to benefit the 

bility for breach of covenant of Mass. 381; Skinner v. Shepard, 

title. Spencer v. Bailey, 69 Law 130 Mass. 180; Beals v. Case, 138 

Times. 179. Mass. 138; Clapp v. Wilder, 176 

65. Keates v. Lyon, 4 Ch. App. Mass. 332, 50 L. R. A. 120, 51 N. 

218; Renals v. Colishaw, 9 Ch. E. 692; De Gray v. Monmouth 

Div. 125, 11 Ch. Div. 866; Leek Beach Club House Co., 50 N. J. 

V. Meeks, — Ala. — , 74 So. 31; Eq. 329, 24 Atl. 388; Equitable 

Berryman v. Hotel Savoy Co., Life Assur. Soc. of United States, 

160 Cal. 559, 37 L. R. A. (N. S.) v. Brennin, 148 N. Y. 661, 43 N. 

5, 17 Pac. 677; Hay v. St. Paul E. 173; Duester v. Alvin, 74 Ore. 

M. E. Church, 196 111. 633, 63 N. 544, 145 Pac. 660. 

E. 1040; Sharp v. Ropes, 110 66. Ante, § 389. 



§ 399] 



Equitable Eestbictions. 



1443 



land, so that it would enure to a subsequent purchaser 
of a part or the whole thereof.''" In other cases a 
contrary view is taken, that the person claiming the 
right to enforce the restrictive agreement as transferee 
of land which belonged to the promisee has the burden 
of showing that the agreement was intended to benefit 
the promisee's land rather than the promisee per- 
sonally.^^ Adopting the latter view, it is not entirely 
clear how this intention may be shown. In England and 
in two or three states the rule appears to be that, 
unless the restriction is in aid of some common plan or 
general scheme of development,^^ it must be shown by 
the language of the instrument itself in which the 
agreement appears,^*^ construed with reference to the 



67. McMahon v. Williams, 79 
Ala. 288. Leek v. Meeks, — Ala. — , 
74 So. 31; Roberts v. Porter, 100 
Ky. 130, 37 S. W. 485; Herriek 
V. Marshall, 66 Me. 435; Peck v. 
Conway, 119 Mass. 546 (semble) ; 
Watrous v. Allen, 57 Mich. 362, 
58 Am. Rep. 363, 24 N. W. 104; 
Hartwig v. Grace Hospital, 198 
Mich. 725, 165 N. W. 827; Post 
V. Weil, 115 N. Y. 361, 5 L. R. A. 
422, 12 Am. St. Rep. 809, 22 N. 
E. 145; Clark v. Martin, 49 Pa. 
289; Muzzarelli v. Holshizer, 163 
Pa. 643, 30 Atl. 291; Ball v. Mul- 
liken, 31 R. L 36, 37 L. R. A. (N. 
S.) 623, Ann. Cas. 1912B, 30, 76 
Atl. 789. 

68. Keates v. Lyon, L. R. 4 Ch. 
218; Berryman v. Hotel Savoy 
Co., 160 Cal. 559, 117 Pac. 677, 
37 L. R. A. (N. S.) 5; Loomis v. 
Collins, 272 111. 221 111 N. E. 999; 
Sharp V. Ropes, 110 Mass. 381; 
Skinner v. Shepard, 130 Mass. 181; 
Lowell Institute for Savings v. 
Lowell, 153 Mass. 530, 27 N. E 
518; Hobart v. Weston, 223 Mass. 



161, 111 N. E. 779; Coughlin v. 
Barker, 46 Mo. App. 54. Helm- 
eley v. Marlborough House Co., 
62 N. J. Eq. 164, 50 Atl. 14; Mc- 
Nichol V. Towsend, 73 N. J. Eq. 
276, 67 Atl. 938, 73 N. J. Eq. 276, 
70 Atl. 965. 

69. Post, § 400. 

70. Renals v. Colishaw, 9 Ch. 
Div. 125; Reid v. Bickerstaff 
(1909), 2 Ch. 305. Judd v. Robin- 
son, 41 Colo. 222, 124 Am. St. 
Rep. 128, 92 Pac. 724, 14 Ann. 
Cas. 1018; Helmsley v. Marl- 
borough Hotel Co., 62 N. J. Eq. 
164, 63 N. J. Eq. 804; Sailer v. 
Padolski, 82 N. J. Eq. 459, 88 
Atl. 967; Skinner v. Shepard, 130 
Mass. 180; St. Patricks Religious 
etc., Ass'n v. Hale, 227 Mass. 175, 

116 N. E. 407. See Beetem v. 
Garrison, 129 Md. 664, 99 Atl. 897 ; 
Equitable Life Ass'n. Soc. of 
United States v. Brennan, 148 N. 
Y. 661. 43 N. E. 173. 

In Kiley v. Hall, 96 Ohio, 374, 

117 N. E. 359, it was considered 
necessary, in order to enable the 



1444 Real Property. [§ 399 

surrounding circumstances,"' but occasionally the view 
has been indicated that such an intention may be in- 
ferred from the surrounding circumstances alone, with- 
out reference to whether the instrument contains any 
indication of intention in this regard.'^ Conceding that 
the intention to benefit the land must appear from the 
instrument itself in which the agreement occurs, the 
fact that the agreement is in terms with the promisee 
and his assigns would seem to be sufficient for this 
purpose"'^ and that the agreement was with the i^romisee 
and his heirs has been given this effects* 

In England the view has obtained that, although 
the agreement was not originally intended to benefit 
the land, the promisee may, upon the subsequent sale by 
him of the land, make the agreement enure to the 
l)enefit of the purchaser by the indication of an inten- 
tion to that effect, that is, he may, as it were, annex 
the agreement to the land by making it a part of the 
subject of the sale.''^ Whether this power in the prom- 
grantee of a lot to enforce a re- ■ Safe Deposit & Trust Co., 114 Md. 
s^triction inserted in the convey- 574, 80 Atl. 298; Badger v. Board- 
ance of a neighboring lot from man, 16 Gray (Mass.) 559; JewelJ 
the common grantor, that the v. Lee, 14 Allen (Mass.) 145, 92 
latter grantee had reason to know Am. Rep. 744; Beals v. Case, 138 
either that the restriction in the Mass. 138; Lowell Institute for 
deed to him was intended for Savings v. Lowell, 153 Mass. 530, 
the benefit of the owners of other 27 N. E. 518; Phoenix Ins. Co. v. 
lots, as well as of the grantor Continental Ins. Co., 87 N. Y. 400; 
or that there was a common plan Ball v. Mulliken, 31 R. I. 36, 76 
of improvement. Atl. 789. 37 L. R. A. N. S. 623; 

Hennen v. Deveny, 71 W. Va 629, 



71. See Hays v. St. Paul M. 
E. Church, 196 111. 633, 63 N. E. 
1040; Coughlin v. Barker, 46 Mo. 
App. 54; Clapp v. Wilder, 176 
Mass. 332, 57 N. E. 692, 50 L. R. 



L. R. A. 1917A, 524, 77 S. E. 142. 
73. Mann v. Stephens, 15 Sim. 

377; Nlcoll v Flenning, 19 Ch. D. 

258; Codman v. Bradley, 201 Mass. 

361, 87 N. E. 591. See McMahon 
A. 120; Hennen v. Deveny, 71 W. ^ Williams, 79 Ala. 288. 
Va. 629. L. R. A. 1917A. 524, 77 ,^ iHelmsley v. Marlborough 

^- ^- ^^'^- Hotel Co.. 68 X. J. Eq. 596, 61 Atl. 

72. Peabody Heights Co. v. 455. 
Wilson, 82 Md. 186, 36 L. R. A. 75. Renals v. Cowlishaw, 9 Ch. 

393, 32 Atl. 386, 1077; Forman v. Div. 125, 11 Ch. Div. 866. Cas. 



§ 399] Equitable Eesteictioxs. 1445 

isee to annex the agreement to the land is to be 
regarded as based on an intention in the promisor to 
confer on him such power, or is entirely independent 
of the intention of the promisor, does not clearly ap- 
\)em', and recognition of any such a power ai)pears to 
be unnecessary and confusing. As has been remarked 
b}^ a writer of great discrimination: ''The instances 
must be rare in which a promisor, willing to give the 
promisee the power of transferring the benefit of the 
agreement, would care whether the power were exer- 
cised by a double assignment of land and agreement or 
by the mere assignment of the land. Xor is it easy 
to see why this distinction should be of value to the 
promisee. For if the agreement be interpreted in the 
wider sense, as intended to give the benefit to the 
promisee and any assignee of the land as sucli, a 
promisee, washing under exceptional circumstances to 
convey the land without the benefit, could easily re- 
lease the restriction to the land about to be con- 
veyed."''' This doctrine does not appear to have been 
adopted in this country. 

There are occasional dicta to the elTect that, even 
in the absence of a general plan,''^'' a restrictive agree- 
ment may be enforced by one who is neither the orig- 
inal promisee, nor a. successor in interest of the latter, 
provided he owned neighboring land at the time of the 
agreement, and it was the intention that he should en- 
joy the benefit thereof.'''** 

If the agreement was for the benefit of particular 
land, not only a subse(iuent grantee in fee of such 
land, but a lessee thereof for years, is entitled to assei-t 
the agreement."" 

489; Spicer v. Martin, 14 App. 76a. J'omi^ § 400. 

Cas. 12; Rogers v. Hosegood 76b. Hays v. St. Paul M. E. 

(900), 2 Ch. 388, 408; Nalder etc. Church, 196 IH. 63.'i, 63 N. E. 1040; 

Brewery Co. v. Harraan, 82 Law Doerr v. Cobbs, 146 Mo. App. 342. 

Times 594. 123 S. W. 547. See editorial not'i, 

76. Professor J. B. Ames, in 12 Columbia Law Rev. 158, and 

17 Harv. Law Rev. 174, Lectures Post, § 400, note 83. 

on Legal History, 381. 77. Taite v. Gosling, 11 Ch. D. 



1446 Real Peopebty. [§ 400 

The right of a subsequent grantee of the land for 
the benefit of which the agreement was made to assert 
the agreement is, it has been decided, independent of 
whether he knew of its existence at the time of the 
conveyance to himJ^ 

An agreement restricting the use of a particular 
tract of land is prima facie not to be construed as in- 
tended to restrict the use of one part of the tract in 
favor of another part thereof. For instance, an 
agreement by the grantee of land with his grantor 
that he will not make a particular use of the land con- 
veyed cannot ordinarily be asserted by a subsequent 
purchaser of a part of that land as against the owner 
of another part.'^^ 

§ 400. Existence of general plan. The question of 
who may enforce a restrictive agreement as to the use 
of land has arisen most frequently in connection with 
agreements entered into in furtherance of some general 
plan or scheme of improvement devised by the owner 
of land upon its division into building lots, it being 
intended that the purchasers of lots shall, for the 
common benefit of all, utilize the lots only in accord- 
ance with such plan. The cases are to the effect that 
when such a general plan exists, any purchaser of a 
lot with knowledge of such plan may assert the 
restrictions involved therein as against any other pur- 
chaser.^*^ In spite of the unanimity with which the 

273; Johnson v. Robertson, 156 1, 127 Am. St. Rep. 925, 85 N. E. 

Iowa, 64, 135 N. W. 585. 687; Lewis v. Ely, 100 N. Y. App. 

78. Rogers v. Hosegood (1900), Div. 252; Wright v. Pfrimmer, 99 
2 Ch. 388, 407; Child v. Douglas. Neb. 447, 156 N. W. 1060; Contra 
Kay 560, 571. Winfield v. Henning, 21 N. J. Eq. 

79. King V. Dickson, 40 Ch. D. 188; Boyden v. Roberts, 131 Wis. 
596; Graham v. Hite, 93 Ky. 474, 659, 111 N. W. 701 (two judges 
20 S. W. 506; Jewell v. Lee, 14 dissenting). 

Allen (Mass.) 145, 92 Am. Dec. 80. Spicer v. Martin, 14 App. 

744; Dana v. Wentworth, 111 Cas. 12; Mackenzie v. Childers, 43 

Mass. 291; Korn v. Campbell, 192 Ch. Div. 265. Alderson v. Cutting, 

N. Y. 490, 37 L. R. A. (N. S.) 163 Cal. 503, 126 Pac. 157; Mc- 



§ 4()0] Equitable Kestrictioiss. 1447 

courts, when the matter has been presented, have ac- 
cepted this doctrine, there is a singular and disap- 
pointing lack of explanation of the principle on which 
it is to be regarded as based. As between two pur- 
chasers of different lots at different times, the right 
of the later purchaser to enforce the agreement of 
the earlier purchaser is readily explicable on the 
theory that the existence of the general plan shows an 
intention that such agreement shall enure to the bene- 
fit of all the lots not then disposed of by the common 
vendor, so that, upon the subsequent sale of one of 
these latter lots, the purchaser thereof will, in ac- 
cordance with the rule before stated, ^^ be entitled to 
enforce the agreement. But this does not explain how 
an earlier purchaser is enabled to enforce a restrictive 
agreement entered into at a later date by a later pur- 
chaser. An agreement cannot well pass on a transfer of 
land unless there is an agreement then in existence to 
pass.^- In some of the states the right of the prior 

Neil V. Gary, 40 App. D. C. 397, v. Lottman, — Tex. Civ. — , 171, 

46 L. R. A. (N. S.) 1113; Parlter 171 S W. 27; Boyden v. Roberts, 

V. Nightingale, 6 Allen (Mass.) 131 Wis. 659, 111 N. W. 701. 

341, 83 Am. Dec. 632; Evans v. It has been held that if one 

Foss, 194 Mass. 513, 9 L. R. A. includes in a common plan not 

(N. S.) 1039, 80 N. E. 587; Allen only his own land, but adjoining 

v. Barrett, 213 Mass. 36, 30 Ann. land which he does not own, and 

Cas. 820, 99 N. E. 575; Allen v. he subsequently acquires this 

Detroit, 167 Mich. 464, 36 L. R. A. land, a purchaser of lots therein 

(N. S.) 890, 133 N. W. 317; Reed from him takes it subject to the 

V. Hazard, 187 Mo. App. 547, 174 plan. Schmidt v. Palisade Supply 

S. W. Ill; Winfield v. Henning 21 Co., — N. J. Ch. — , 84 Atl. 807. 

N. J. Eq. 133; De Gray v. Mon^ The equitable obligation in effect 

mouth Beach Club House Co., 50 attaches to the land when it is 

N. J. Eq. 329, 24 Atl. 388, 67 N. .acquired by him. See 13 Colum- 

J. Eq. 731, 63 Atl. 1118; Mulligan bia Law Rev. at p. 77. 

V. Jordan, 50 N. J. Eq. 363, 24 Atl. 81. Ante, § 399. 

543; Hyman v. Tash — (N. J. Eq.) 82. Summers v. Beeler, 90 Md. 

— , 71 Atl. 742; Tallmadge v. East 474, 45 Atl. 19, 48 L. R. A. 54, 78 

River Bank, 26 N. Y. 105; Barron Am. St. Rep. 446; Mulligan v. Jor- 

V. Richard, 8 Paige (N. Y.) 105; dan, 50 N. J. Eq. 363. 24 Atl. 543; 

Wallace v. Clifton Land Co., 92 Helnisley v. Marlboro Hotel Co.. 

Ohio St. 349, 110 N. E. 94; Hooper 62 N. .1. Eq. 164. 63 N. J. Eq. 



1448 Real Pkopekty. [§ 4U0 

purchaser to enforce the subset|uent agreement 
of another purchaser might he supported on 
the ground that the beneficiary of a contract, 
although not a party thereto, can maintain suit 
thereon. ^^ In jurisdictions which do not concede such 
a right to the beneficiary of a contract, the view might 
perhaps be adopted that what the prior purchaser in 
such case is allowed to enforce is, not the agreement 
entered into by the subsequent purchaser, but an 
agreement to the same elTect, entered into by the 
common vendor, either expressed, or inferred from the 
existence of a common plan of improvement. That is, 
if diiferent persons purchase lots from A and there 
is a common plan of improvement brought by A to 
the knowledge of each purchaser, this evidences an 
agreement by A with each purchaser that the lots 
subsequently to be sold by him shall not be utilized 
in violation of such plan, and this agreement can be 
enforced as against any subsequent purchaser (with 
notice thereof) from A, without regard to the agree- 
ment in this regard between such subsequent pur- 
chaser and A. It must be conceded, however, that 
such a theory has but rarely been judicially asserted,^"* 
and the courts, in adjudicating the right of purchasers 

S04, 52 Atl. 1132; Leaver v. Gor- plained upon established prin- 

man, 73 N. J. Eq. 129, 67 Atl. ciples, but must be accepted as 

111; McNichol v. Townsend, 73 a further extension of equity jur- 

N. J. Eq. 276, 70 Atl. 965; Dosrr isprudence, whereby in a limited 

V. Cobbs, 146 Mo. App. 342, 123 S. class of cases the interests of 

W. 547; Wright v. Pfrimmer, 99 beneficiaries of a contract are 

Xeb. 447, 156 N. W. 1060. recognized and protected." 

83. See Pollock, Contracts. 8^- It is more or less clearly 

(Williston's Edition) at p. 237 et indicated in Talmadge v. East 

ggq_ Eivei- Bank, 26 X. Y. 105; Equi- 

In a discriminative note in 12 table Life Insurance Coc. v. Bren- 

Columbia Law Rev. at p. 160, this nan, 148 N. Y. 661, 43 N. E. 173 ; 

theory is adopted to explain the Lawrence v. Woods, 54 Tex. Civ. 

reciprocal rights of the purchas- App. 233, 118 S. W. 551; Spicer 

ers under a general plan, it being v. Martin, 14 App. Cas. 2. See 

said that the results reached by 5 Harv. Law Rev. at p. 283, article 

the courts "cannot be entirely ex- by Charles I. Giddings. Esq. 



§ 4(J(Jj EQUITABLE IlESTlilCTIOXS. 144*J 

under a comiiioii plan to enforce restrictions as be- 
tween themselves, base this right in terms not upon the 
implication of an agreement by the common vendor, 
but upon the express agreements entered into by the 
purchasers themselves. Furthermore the Statute of 
Frauds might possibly operate to deprive of legal ef- 
fectiveness an agreement so implied from oral state- 
ments as to a general plan. Another explanation 
which has been given of the rights of enforcement as 
between various purchasers is that the equity "springs 
from the presumption that each purchaser has paid 
an enhanced price for his property, relying on the 
general plan, by which all the property is to be sub- 
jected to the restricted use, being carried out, and 
that while he is bound by and observes the covenant, 
it would be inequitable to him to allow any other 
owners of lands, subject to the same restrictions, to 
violate it."^^ And it has also been said that in such 
case the covenant is enforceable by any grantee against 
any other upon the theory that there is a mutuality of 
covenant and consideration which binds each, and 
gives to each the appropriate remedy.^''' 

The question of the existence of a general plan is 
one of fact, to be determined with reference to the 
particulars and conditions of the laying out and sale of 
the lots, as indicated either verbally or in writing.^^ That 
the vendor retains adjoining property without himself 

85. De Gray v. Monmouth necessarily requires and imports 
Beach Club House Co., 50 N. J. reciprocity of obligation. 

Eq. 329, 24 Atl. 388, per Green, 87. See Hano v. Bigelow, 155 

V. C. Ma.ss. 341, 29 N. E. 628; Allen v. 

86. Korn v. Campbell, 192 N. Barrett, 213 Mass. 36, 99 N. E. 
Y. 490, 37 L. R. A. (N. S.) 1, 85 r.75; Sprague v. Kimball. 213 
N. E.. 689, per Werner, J. And Mass. 380, 100 N. E. 622; Barton 
see Parker v. Nightingale, 6 y. Slifer, 72 N. J. Eq. 812, 66 Atl. 
AJlen (Mass.) 241. ^99; Foreman v. Sadler, 114 Md. 

So in Spicer v. Martin, 14 App. 574, 80 Atl. 298; Be Birmingham 
Cas. 12, Lord Macnaghten says & District Land Co., (1893), 1 Cli. 
that the community of interest 342. 



1450 



Real. Peopekty. 



[§ 400 



entering into any agreement similar to that which he 
exacts from purchasers has been regarded as tending 
to show the absence of a general plan enuring to the 
benefit of all the purchasers.«« That similar agree- 
ments were exacted of a considerable portion of the 
purchasers does not of itself show the existence of a 
general plan.^** On the other hand the fact that agree- 
ments are not exacted of a portion of the purchasers 
has been decided not to show the non existence of 
a general plan.^° The fact that a like agreement was 
exacted from all of the various purchasers has been 
regarded as showing the existence of a general plan,^i 



88. Keates v. Lyon, 4 Ch. at p. 
225; Osborne v. Bradley (1903), 2 
Ch. at p. 454; Sharp v. Ropes, 
110 Mass. 381. Compare Se Bir- 
mingham & District Land Co., 
(1893), 1 Ch. 342. 

89. Leaver v. Gorman, 73 N. 
J. Eq. 129, 67 Atl. Ill; McNichol 
V. Townsend, 73 N. J. Eq. 276, 67 
Atl. 938; McNeil v. Gary, 40 App. 

D. C. 397, 46 L. R. A. (N. S.) 1113; 
Summers v. Beeler, 90 Md. 474, 48 
L. R. A. 54, 78 Am. St. Rep. 446. 

45 Atl. 19; Coughlin v. Barker, 

46 Mo. App. 54. 

90. Leader v. La Flamme, 11 
Me. 242. 88 Atl. 859; Velie v. 
Richardson, 126 Minn. 334, 148 N. 
W. 286; Hano v. Bigelow, 155 
Mass. 341, 29 N. E. 628; Bacon 
V. Sandberg, 179 Mass. 396, 60 X. 

E. 936; Sargent v. Leonardi. 223 
Mass. 556, 112 N. E. 633; Allen 
V. Detroit, 167 Mich. 464, 36 L. 
R. A. (N. S.) 890, 133 N. W. 317; 
Chopin V. Dougherty, 165 111. App. 
426. 

The exaction of different agree- 
ments from the various pur- 
chasers does not tend to show 



a common plan. Webber v. 
Landrigan, 215 Mass. 221, 102 N. 
PJ. 460; Clark v. McGee, 159 111. 
518, 42 N. E. 965; Helmsley v. 
Marlborough Hotel Co., 62 N. J. 
Eq. 164, 50 Atl. 14. 

That in some conveyances 
there are restrictions additional 
to those which occur in all the 
conveyances does not show the 
non existence of a general plan. 
Evans v. Foss, 194 Mass. 513, 9 
L. R. A. (N. S.) 1039, 11 Ann. 
Cas. 171, 80 N. E. 587; Allen v. 
Barrett, 213 Mass. 36, Ann. Cas. 
1913E, 820, 99 N. E. 575. Nor is 
this shown by lack of exact uni- 
formity in the restrictions in the 
different conveyances. Hart v. 
Ruter, 223 Mass. 207, 111 N. E. 
1; Morrow v. Hasselman, 69 N. 
J. Eq. 612, 61 Atl. 369; Coates 
V. Cullingford, 147 App. Div. 39, 
131 N. Y. S. 700; Hooper v. Lott- 
man, — Tex. Civ. — , 171 S. W. 
270. 

91. Fete v. Foerstel, 159 Mo. 
App. 75, 139 S. W. 820; Alderson 
V. Cutting, 163 Cal. 503, 126 Pac. 
157 {semble); Hano v. Bigelow, 



<^ 400] Equitable Restrictions. 1451 

but a contrary view has also been asserted.^^ A com- 
mon plan cannot be shown, as against one who pur- 
chased without knowledge of any restriction, by evi- 
dence that after his purchase the neighboring lots were 
sold by the common vendor subject to a particular 
restriction.*^"' 

That a building line appeared on a recorded ])lat 
of property has been referred to as indicating that 
there was a general plan in this regard, subject to 
which each purchaser of a lot acquired title. ^^ On the 
other hand the appearance of such a line on a plat 
has been regarded as insufficient to show a general 
plan.^° 

Restrictions imposed in accordance with a general 
plan, like other restrictions,*^*' are enforceable only as 
against purchasers with notice thereof,*^' and a pur- 
chaser with notice from a purchaser without notice 
takes free therefrom.^* A purchaser is, it has been 
decided, not charged with notice of a general plan by 
the uniformity of construction of buildings on other 
lots sold by the same vendor.-'^ A purchaser can ob- 
viously not be charged with notice of a general plan, 
or affected thereby, if his purchase was prior to the 
establishment of such plan,^ 

155 Mass. 341, 29 N. E. 638 (sem- 319, 90 Atl. 73. 

ble); McNeil v. Gary, 40 App. 93. Ante, § 398. 

Dist. Col. 397, 46 L. R. A. (N. S.) 97. Roak v. Davis, 194 Mass. 

1113; Wright v. Pfrimmer, 99 481, 80 N. E. 690; Hyman v. 

Neb. 447, 156 N. W. 1060. Tash (N. J. Eq.), 71 Atl. 742. 

92. MuUigan v. Jordan. 50 N. 98. McCuster v. Goode, 185 
J. Eq. 363, 24 Atl. 543; Roberts Mass. 607. 71 N. E. 76. 

V. Lombard, 78 Ore. 100, 152 Pac. 99. Bradley v. Walker, 138 N. 

499. Y. 291, 33 N. E. 1079, overruling 

93. Lambrecht v. Gramlich, 187 dictum in Tallmadge v. East 
Mich. 251, 153 N. W. 834. River Bank, 26 N. Y. 105, 111; 

94. Loomis v. Collins, 272 111. Casterton v. Plotkin, 188 Mich. 
221, 111 N. E. 999. See Oliver £33, 154 N. W. 151. 

V. Kalick, 223 Mass. 252, 111 N. 1. Casterton v. Plotkin, 188 

E. 879. Mich. 333, 154 N. W. 151. 

95. McCloskey v. Kirk, 243 Pa. 



1452 Eeal Property. [§ 401 

In England the doctrine of a general plan has 
been applied in connection with leases of flats in an 
apartment building, with the result that the lessee of 
a flat, whose written and printed lease shows that the 
whole building was used or intended to be used for 
residential flats, and imposes certain regulations upon 
the lessee in accordance with this intended use, is en- 
titled to an injunction against the lessor, seeking to 
utilize the balance of the building for other than resi- 
dential purposes.^ 

§ 401. Defenses to enforcement. The right to 
enforce a restrictive agreement may be lost by laches or 
acquiescence,-^ especially when this results in the mak- 
ing of expenditures by defendant.^ And if the promisee 
or his successor in title, by his conduct, in any way 
induces a violation of the agreement, he cannot ordi- 
narily complain thereof.'^ That the agreement has but 
a limited time to run has, in connection with other 
circumstances,^ been regarded as a consideration ad- 
verse to its enforcement. 

2. Hudson v. Cripps (18D6), 1 143 Pa. 487, 22 Atl. 832, 24 Am. 
Ch. 265; Alexander v. Mansions St. Rep. 567. 

Proprietary, 16 Times Law Rep. 4. Bridgewater v. Ocean City 

431; Gedge v. Bartlett, 17 Times Ass'n, 85 N. J. Eq. 379, 96 Atl. 

Law Eep. 43; Jaegei v. Mansions, 905; Smith v. Spencer, 81 N. J. 

Limited, 87 Law Times, 690. Eq. 389, 87 Atl. 158; Whitney v. 

3. Leaver v. Gorman, 73 N. J. Union Railway Co., 11 Gray 
Eq. 129, 67 Atl. Ill; Sayers v. (Mass.) 359, 367; Kelsey v. Dodd. 
Collyer, 28 Ch. Div. 103. o2 L. J. Ch. 34. 

A delay of ten weeks before 5. Stott v. Avery, 156 Mich, 

consulting an attorney was re- 674, 121 N. W. 825; Union Trust 

garded as not necessarily pre- "S: Realty Co. v. Best, 160 Cal. 263, 

eluding relief, no prejudice re- ^16 Pac. 737. De Gama v. 

suiting to defendant. Stewart v. r)'Aquila, — X. J. Ch. — , 101 Atl. 

Finkelstone, 206 Mass. 28, 92 N. 1028. 

E. 37. And see Woodbine Land 6. Loud v. Prendergast, 206 

& Improvement Co. v. Riener, — Mass. 122, 92 N. E. 40; Page v. 

N. J. Eq. — , 85 Atl. 1004; Star Murray, 46 N. J. Eq. 325, 19 Atl. 

Brewery v. Primas, 163 111. 652, 11; McClure v. Leaycraft, 183 N. 

45 N. E. 145; Orne v. Fridenburg, Y. 36, 5 Ann. Cas. 45, 75 N. E. 



§ 401] 



Equitable Restrictions. 



1453 



In the case of restrictions imposed in pursuance 
of a general plan, that the originator of the plan, the 
common grantor, acquiesces in, that is, fails to take 
legal action to prevent, substantial infringements 
of the plan by some of his grantees, has been regarded 
as showing an abandonment by him of the plan, pre- 
cluding him from subsequently enforcing the restriction 
as against others.' And one to whom he conveys a 
lot subject to such a common plan of restriction has 
occasionally been regarded as precluded from enjoining 
the violation of the restriction if he acquiesced in a 
violation thereof by another which substantially af- 
fected his property,^ though his failure to object to 
a violation by the owner of one lot does not affect his 
right to object to a violation by another, if the former 
violation, by reason of the distance of the lot, or for 
some other reason, did not affect the enjoyment of his 
lot.^ In one or two states the acquiescence by one 



961; Page v. Murray, 46 N. J. 
Eq. 325, 19 Atl. 11. 

7. Scharer v. Pantler. 127 Mo. 
App. 433, 105 S. W. 668; Chelsea 
Land & Improvement Co. v. 
Adams, 71 N. J. Eq. 771, 66 AtL 
180, 14 Ann. Cas. 758 ; Ocean City 
Land Co. v. Weber, 83 N. J. 476. 
91 Atl. 600; Roper v. Williams, 
Turn. & E. 18. Peck v. Matthews, 
L. R. 3 Eq. 515; Sobey v. Sains- 
bury (1913), 2 Ch. 513. 

But his acquiescence in viola- 
tions of a like covenant in deed.s 
of neighboring lots has been hel'l 
not to prevent his enforcement 
of the covenant, if these viola- 
tions occurred before the covenant 
was made. Sherrard v. Murphy, 
193 Mich. 352, 159 N. W. 524. 

8. Curtis V. Ruben, 244 111. 88, 
91 N. E. 84; Ewertsen v. Gersten- 
berg, 186 111. 344, 57 N. E. 1051, 
21 L. R. A. 310; Helmsley v. Marl- 

2 R. P.— 17 



borough Hotel Co , 62 N. J. Eq. 
164, 50 Atl. 14, 63 N. J. Eq. 804, 
52 Atl. 1132; Meany v. Stork, 81 
N. J. Eq. 210, 86 Atl. 398; Ocean 
City Ass'n V. Chalfant, 65 N. J. 
Eq. 156, 55 Atl. 801, 1 A. & E. 
Ann. Cas. 601. 

9. Alderson v. Cutting, 163 Cal. 
503, 126 Pac. 157; Johnson v. 
Robertson. 156 Iowa. 64, 135 N. W. 
585; Barton v. Slifer, 72 N. J. Eq. 
812. 66 Atl. 899. Bowen v. Smith, 
76 X. .1. Eq. 456, 74 Atl. 675; Row- 
land v. Miller, 139 X. Y. 93, 22 
L. R, A. 22, 34 X. E. 765; McGuire 
v. Caskey, 62 Ohio St. 419, 57 X. 
E. 53; Payson v. Burnham, 141 
Mass. 547. 6 X. E. 708; Sayles v. 
Hall, 210 Mass. 281, 96 X. E. 712; 
Schadt v. Brill, 173 Mich. 647. 
139 X. W. 878. 45 L. R. A. (X. S.) 
726; Stewart v. Stork, 181 Mich. 
408, 148 N. W. 393 (srmble). 



1454 Real Propekty. [§ 401 

grantee in the violation of the common restriction by 
another, even though such violation be substantial, 
does not, it seems, preclude the former from sub- 
sequently asserting the restriction as against a third 
,i»rantee,^" wliile in England the view has been 
adopted that, in order tliat acquiescence in other vio- 
lations shall preclude equitable relief, such violations 
must have been of a character which would prevent 
the attainment of the purpose which it was sought to 
attain by the execution of the agreement, that is, uni- 
formity in the improvement of the various lots, or 
the preservation of the general character of the 
property considered as a whole. ^^ 

Acquiescence in a breach of a minor character 
would not, in any state, it seems probable, constitute 
grounds for denying relief against a breach of a 
much more serious character,^- and likewise former 
breaches and acquiescence therein have been regarded 
as insufficient grounds for withholding relief when 
they resulted from a mistaken construction of the 
agreement.^^ 

One cannot obtain relief in equity against the 
violation of a restrictive agreement entered into in 
pursuance of a general plan if he himself is guilty of 

10. Bacon v. Sandberg, 179 ing Ocean City Ass'n v. Chalfant, 
Mass. 396. 60 N. E. 936. Codnian v. 65 N. J. Eq. 156, 1 Ann. Cas. 601, 
Bradley, 179 Mass. 396, 60 N. E. 55 Atl 801. 

936; Andre v. Donovan, 198 Mich. 12. See Richards v. Revitt, 7 

256, 164 N. W. 543; O'Gallagher v. Ch. Div. 224; Meredith v. Wilson, 

Lockhart, 263 111. 489, 105 N. E. 69 Law Times 336. Seawright v. 

295, 52 L. R. A. (N. S.) 1044. And Blount, 139 Ga. 323, 77 S. E. 152; 

see Misch v. Lehman. 178 Mich. Newberry v. Barkalow, 75 N. J. 

225, 144 N. W. 556; Lattimer v. Eq. 128, 71 Atl. 752. And see Ball 

Livermore, 72 N. Y. 174; Yeomans v. Milliken, 31 R. I. 36, 37 L. R. 

V. Herrick, 178 Mo. App. 274, 165 A. (N. S.) 623. Ann. Cas. 1912B, 

S. W. 1112. 30, 76 Atl. 789. 

11. German v. Chapman, 7 Ch. 13. Right v. Winters, 68 N. J. 
Div. 271; Knight v. Simmonds Eq. 252, 59 Atl. 770; Brigham v. 
(1896), 2 Ch. 295. See note in 17 Mulock Co.. 74 N. J. Eq. 287, 70 
Harv. Law Rev. at p. 138 criticiz- Atl. 185. And see Stewart v. 



§ 401] 



Equitable Kestkictions. 



1455 



a substantial breach of tlie same restriction.^'* But the 
fact that the plaintiff has himself committed a minor 
breach of the agreement will not disentitle him to an 
injunction against a breach by another of considerable 
magnitude. ^''^ 

While the original promisee may release the re- 
stricted land from the burden of the restriction, so 
long as he is the only one interested in the observance 
thereof, he cannot so do to the detriment of one 
claiming under him, who shares with him the right 
to assert the restriction.^^ 

If, by reason of the course of action pursued by 
the complainant, or of his predecessor in title, the 
character of the neighborhood has been so altered as 
to render impossible the attainment of the purjDose 
which originally dictated the making of the restrictive 
agreement, equity will not enforce the agreement.^'' 



Finkelstone, 206 Mass. 28, 28 
L. R. A. (N. S.) 634, 138 Am. St. 
Rep. 370, 92 N. E. 37. 

14. Curtis V. Rubin, 244 III. 
88, 91 X. E. 84; Kneip v. Schroe- 
der, 255 111. 621, 99 N. E. 617; 
Compton Hill Improvement Co. 
V. Tower, 158 Mo. 282, 59 S. W. 
239; Loud v. Pendergast, 206 
Mass. 122, 92 N. E. 40; Olcott v. 
Sheppard K. & Co., 96 N. Y. App. 
Div. 281, 89 N. Y. Supp. 201. Sut- 
clifEe V. Eisele, 62 X. J. Eq. 222, 
50 Atl. Rep. 69; Smith v. Spencer, 
81 N. J. Eq. 389, 87 Atl. 158. 

15. Western v. MacDermott, L. 
R. 2 Ch. 72; Meredith v. Wilson, 
69 Law Times 336; Hooper v. 
Bromet, 89 Law Times 37; Bacon 
V. Sandberg, 179 Mass. 396, 60 X. 
E. 936; Stewart v. Finkelstone, 
206 Mass. 28, 28 L. R. A. (N. S.) 
634, ]38 Am. St. Rep. 370, 92 N. 
E. 37; Morrow v. Hasselman, 69 
N. J. Eq. 612, 61 Atl. 369. Hy- 



man v. Tash (N. J. Eq.), 71 Atl. 
742; McGuire v. Caskey, 62 Ohio 
St. 419, 57 N. E. 53; Adams v. 
Howell, 58 Misc. 435, 108 N. Y. 
Supp. 945; Tripp v. O'Brien, 57 
111. App. 407. 

16. Mackenzie v. Childers, 43 
Ch. D. 265; Johnson v. Robertson, 
156 Iowa, 64, 135 N. W. 585; Spahr 
V. Cape, 143 Mo. App. 114, 122 S. 
W. 379; Coudert v. Sayre, 46 X. 
.7. Eq. 386. Bowen v. Smith, 76 
X. J. Eq. 456, 74 Atl. 675; Duester 
V. Alvin, 74 Ore. 544, 145 Pac. 
660. And see Landell v. Hamil- 
ton, 177 Pa. 23, 35 Atl. 242. 

17. Bedford v. British Museum, 
2 Myl. & K. 552; Star Brewery 
V. Primas, 163 111. 652, 45 X. E. 
145; Ewertsen v. Gerstenberg, 186 
111. 344, 51 L. R. A. 310, 57 X. 
E. 1051; Page v. Murray, 46 X. J. 
Eq. 32.5, 19 Atl. 11. Compare Hen- 
nen v. Deveny, 71 W. Va. 629, 
L. R. A. 1917A, 524. 77 S. E. 142. 



1456 Real Propeety. [§ 401 

Thus in a leading English case it was decided that one 
who had, for the protection of the outlook from his 
mansion house, required one to whom he sold neigh- 
boring property to enter into an agreement as to the 
mode of improving the property sold, could not, after 
having torn down his mansion house, obtain an in- 
junction against a breach of the agreement.^^ And 
it is apparently on this theory that a restrictive 
agreement has occasionally been regarded as un- 
enforcible after the promisee had sold neighboring 
property free from any such restriction, it being con- 
sidered that by the making of such sales he in effect 
made the agreement useless for the purpose of pre- 
serving the character of the neighborhood.^'* Such is 
apparently the extent to which, in England, a change 
in the character of the neighborhood, subsequent to 
the making of the agreement, is regarded as operating 
to prevent the enforcement of the agreement, that is, 
the change in the neighborhood has this effect if, and 
only if, it is a result of the course of action pursued 
by the complainant or his predecessor in interest.^" 
In this country, on the contrary, a cliange of condition 
has not infrequently been regarded as precluding the 
enforcement of the restrictive agreement even though 
the change was not the result of the course of action 
pursued by the complainant or his predecessor in title. 
In one case, frequently referred to,-^ it was decided 

18. Bedford v. British Museum, senger Rwy. Co., 85 Ky. 525, 4 
2 Myl. & K. 552. S. W. 228; Jenks v. Pawlowski, 98 

So it was held that, if the owne. Mich. 110, 22 L. R. A. 863, 39 Am. 

of a lot had, by building a wall, St. Rep. 522, 56 X. W. 1105. 

rendered a restriction upon the 20. Sayers v. Collyer, L. R. 28 

height of buildings on the next Ch. D. 103; Osborne v. Bradley 

lot partially valueless to his lot, (1903), 2 Ch. 446. Craig v. Green 

he could not enforce the restric- (1899), 1 Ir. Ch. 258. But see 

tion so as to prevent the con- dicta in Sobey v. Sainsbury (1913), 

struction of buildings no higher 2 Ch. 513; German v. Chapman, 

than the wall. Landell v. Haniil- 7 Ch. D. 279; Knight v. Simmonds 

ton, 177 Pa. St. 23, 35 Atl. 242. (1896), 2 Ch. 297. 

19. Duncan v. Central Pas- 21. Columbia College y. Thach- 



§ 401] Equitable Restrictions. 1457 

that a change of conditions which could not have been 
foreseen at the time of the making of the agreement, 
the construction of an elevated railway in front of 
the restricted property, was a sufficient defense to the 
enforcement of a restriction, imposed for the purpose 
of fitting the property for high class residences; and 
in a number of cases even an alteration in the char- 
acter of the neighborhood which could have been fore- 
seen, such as the encroachment of business upon a 
residence neighborhood, has been regarded as justify- 
ing the refusal of equitable relief,^^ especially when 
the enforcement of the restriction would materially 
injure the defendant without benefitting the complain- 
ant.^^ Such a change in the character of the neighbor- 
hood has however been decided not to be a defense to 
the suit to enforce the restriction, if the restriction 
continued to be of value to the property sought to be 
benefitted.^^ It would seem probable that the courts, 
in regarding an alteration in the neighborhood, whicli 
might have been foreseen, as ground for refusing 

er, 87 N. Y. 311, 41 Am. Rep. 365. Jackson v. Stevenson, 156 Mass. ^ 

22. Los Angeles Terminal 496, 31 N. E. 691, 32 Am. St. Rep. 
Land Co. v. Muir, 136 Cal. 36, 68 476; Rowland v. Miller, 139 N. Y. 
Pac. 308; Kneip v. Schroeder, 255 93, 22 L. R. A. 182, 34 N. E. 765; 
III., 621, 29 Ann. Cas. 426, 99 N. E. McClure v. Leaycraft, 183 N. Y. 
G17; McArthur v. Hood Rubber 36, 5 Ann. Cas. 45, 75 N. E. 961; 
Co., 221 Mass. 372, 109 N. E. 162; Batchelor v. Hinkle, 210 N. Y. 
Amerman v. Deane, 132 N. Y. 243, 104 N. E. 629; Page v. Murray, 
355, 28 Am. St. Rep. 584, 30 N. 46 N. J. Eq. 325, 19 Atl. 11. 

E. 741; McClure v. Leaycraft, 183 24. Codman v. Bradley, 201 
N. Y. 36, 75 N. E. 961, 5 Ann. Cas. Mass. 361, 87 N. E. 591; Zipp v. 
45. Misch V. Lehman, 178 Mich. Barker, 40 App. Div. 1, 57 N. Y. 
225, 144 N. W. 556. But not the Supp. 569, 166 N. Y. 621. as ex- 
mere anticipation of such a plained in Batchelor v. Hinkle, 
change. Evans v. Foss, 194 .Mass. 210 N. Y. 243, 104 N. E. 629; 
513, 80 N. E. 587, 9 L. R. A. N. S. Brown v. Huber, 80 Ohio St. 183*, 
1039, 11 A. & E. Ann. Cas. 171; 88 N E. 322; Landell v. Hamilton, 
Spahr V. Cape, 143 Mo. App. 114, 175 Pa. 327, 34 L. R. A. 227, 34 
122 S. W. 379. Atl. 663. See Witherspoon v. 

23. Star Brewery Co. v. Pri- Hurst, 88 S. C. 561, 71 S. E. 232. 
mas, 163 111. 652, 45 N. E. 145; 



1458 Real Peopebty. [§ 401 

equitable relief, have been moved by the consideration 
that otherwise such restrictions might operate to 
hamper municipal development.^^ 

25. See 14 Columbia Law Rev. is suggested that the view refer- 

at p. 438, and the full discussion red to may be supported on the 

of the various New York decisions theory of a presumed intention 

in 6 Bench & Bar 56, 96, by to that effect in the creation of 

Adolph Sieker, Esq. In a note the restriction, 
in 31 Harv. Law Rev. at p. 877, it 



CHAPTER XVI. 

RENT. 

§ 402. The nature oi rent. 

40S. What may be reserved as rent. 

404. Classes of renis. 

405. Payments which are not rent. 

406. The reservation of rent. 

407. Transfer of rights and liabilities. 

408. Death of person entitled. 

409. Time at which rent is due. 

410. Apportionment as to time. 

411. Amount of the rent. 

412. Apportionment as to amount. 

413. Extinction or suspension of rent. 

414. Actions for rent. 

415. Distress for rent. 

416. Lien for rent. 

§ 402. The nature of rent. Rent may be defined, 
in a general way, as a tribute or return of a certain 
amount, which is regarded as issuing out of the land, 
as part of its actual or possible profits, and is payable 
by one having an estate in the land, as compensation 
for his use possession and enjoyment of the land, or 
occasionally, as a charge on the land. The word "rent" 
is derived from "render," and the name thus em- 
phasizes the distinction betw^een rent, which is actually 
rendered or paid by the tenant, and a j^rofit a prendre, 
which is taken by the person entith^d thereto, without 
the active intervention of the tenant.^ The word is 
used in the law in at least four distinct senses, which 
it is desirable clearly to distinguish. It is in the first 
place used in a general sense, to describe any and 
every tribute which may be payable by one on account 
of an estate in the land, as when we say that rent 

1. Co. Litt. 142a; Leake, Prop, in Land, 373. 



1460 Real Peopeety. [§ 403 

is usually payable in money, or rent is collectible by 
distress, or rent must be certain in amount, and, thus 
used, it applies either to one payment of tribute to be 
made, one "installment of rent," or to a succession 
of such payments. The word, when used in this sense, 
is, ordinarily at least, not accompanied by any article. 
In the second place, the word is used specifically, to 
describe a particular payment of tribute^ to be made by 
a tenant of particular land, or a succession of such 
payments. For instance, we may say that the rent due 
by a tenant of certain land is over due, meaning thereby 
that one installment of the rent is overdue or that 
a number of installments are overdue. And so we 
speak of an action having been brought for "the rent," 
meaning thereby an action for one installment or several 
installments. The word rent when used in this sense 
is ordinarily preceded by the definite article. In the 
third place, the word is used specifically to describe 
the right which a particular person or persons may have 
to a succession of payments by the tenant or tenants 
of a particular piece of land, as when we refer to a 
man as having a rent or a ground rent, or say that 
the rent upon (issuing from) a certain piece of land 
belongs to a named individual. The word "rent," 
when used in this sense, is used with either the definite 
or indefinite article. In the fourth place, the word is 
used to designate sums paid as rent, the proceeds, that 
is, of the payment of one or more of the periodic in- 
stallments, as when one speaks of applying the rent 
in a certain manner, meaning thereby what is re- 
ceived on account of rent. The word is frequently used 
in this sense in the phrase "rents and profits." Allien 
so used, the word is ordinarily preceded by the definite 
article. 

§ 403. What may be reserved as rent. It is said 
by Coke that rent is reserved out of the profits of the 
land,2 and by Blackstone that rent is a profit issuing 

2. Co. Litt. 141b. 



§ 403] Eent. 1461 

out of tlie laiid.-^ The use of the term ''profit" in this 
connection has reference to the connnon law theory of 
rent, that it is part of the actual or possible profits of 
the land, a theory which was closely connected with 
another theory, that rent, like any other feudal service, 
was something issuing from and owed by the land 
itself.* The chief consequences of the theory that rent 
is payable out of the profits of the land are that if 
the tenant is deprived of the opportunity to take the 
profits, as by eviction, the landlord's right to rent 
ceases or is suspended,^ and that the rent is not re- 
garded as an actual debt until the profits have been 
received by the tenant, in the absence of an express 
provision to the contrary.^ 

The statement that rent is a profit, or a part of 
the profits, issuing out of the land,. does not mean that 
part of the actual products of the soil must he delivered 
as rent. Tient is, in fact, usually reser^^ed or made 
payable in money, but the tribute to be rendered may, 
by the terms of the reservation, take almost any form, 
as, for instance, the delivery of a horse," or of a certain 
amount of grain or cotton,* the furnishing of board or 

3. 2 Blackst. Comm. 41. Houghton, 1 Lowell, 554, Fed. 

4. See 2 Pollock & Maitland, Cas. No. 6,725; Wilson v. Penn- 
Hist. Eng. Law, 126, 129. sylvania Trust Co., 114 Fed. 742. 

5. See Clun's Case, 10 Co. 126b But that rent to become due con- 
and post, § 413, notes 93 et seq. stitutes a present debt, see Ro- 

6. Litt., § 513; Co. Litt. 292b; well v .Felker, 54 Vt. 526. And 
Bordman v. Osborn, 23 Pick. gge also Brown v. Cairns, 107 
(Mass.) 295; Thorp v. Preston, ^^.^^,3^ 277, 77 N. W. 478. 

42 Mich. 511, 4 N. W. 227; Ord- ^ Co. Litt 142a 

way V. Remington, 12 R. I. .nO, ^_ ^^[ ^itt.' 142a; Townsend v. 



Isf!nborger, 45 Iowa, 670; Boyd 
V. McCombs, 4 Pa. St. 146; Mc- 
Dougal V. Sanders, 75 Ga. 140. 



34 Am. Rep. 646; Haffey v. Miller 
6 Gratt. (Va.) 454. 
Consequently a claim for rent 

subsequently to accrue cannot bo 

r^..„„.r,f^,i oc „ ,i,.;.v, „„..;v,..f Frequcntly, in this country, rent 

presented as a claim against a 1 ." 

bankrupt's estate. Atkins v. consists of a named portion of 
Wilcox, 105 Fed. 595; Ex parte the crop raised. See (oUr, § 265. 



1462 Real Peopeety. [§ 404 

support,** or the performance of manual services on or 
off the land.^« 

It is said hy Coke that "a, man upon his feoifment 
or conveyance cannot reserve to him parcel of the 
annual profits themselves, as to reserve the vesture or 
herbage of the land or the like. For a reservation 
ought not to be a reservation of the profits themselves, 
since these are granted, but of a new return out of the 
profits ;"^^ and his statement in this regard has been 
followed by other English writers.^- A like view has 
been strongly asserted in a New Hampshire decision.^^ 
And so it has been said that when the grantor or lessor 
undertakes to reserve as rent a share of the ore which 
may be removed from the land, this constitutes prop- 
erly, not a reservation of rent, but an exception of a 
part of the property gTanted or leased.^^ But what- 
ever the rule may be in this regard in England, it is 
not open to question, in most parts of this country, 
that a reservation as rent of part of the crops to be 
produced on the land is perfectly valid. 

§ 404. Classes of rents. The classification of rents 
at common law was based primarily upon the dis- 
tinction between a rent which was reserved upon the 
conveyance or lease of land, as a compensation to the 

9. Baker v. Adams, 5 Cush. Ga. App. 46, 60 S. E. 800. 
(Mass.) 99; Shouse v. Krusor, 24 11. Co. Litt. 142a. 

Mo. App. 279; In re Williams' 12. Sheppard's Touchstone, SO: 

Estate, 1 N. Y. Misc. 35, 22 N. Y. 3 Cruise's Dig. tit. 28, c. 1, § 3; 

Supp. 906. Comyn, Landlord & Ten., 95. 

In Munroe v. Syracuse, Lake 13. Moulton v. Robinson, 27 X. 

Shore & Northern R. Co., 200 N. H. .550. 

Y. 224, a stipulation for the is- 14. See Gowan v. Christie, L. 

sue of an annual railroad pass R. 2 H. L. Sc. 273, 284, per Lord 

was regarded as in the nature Cairns; Coltness Iron Co. v. 

cf one for rent. Black, 6 App. Cas. 315, 335, per 

10. Co. Litt. 96a, 96b; Doe d. Lord Blackburn; Greville-Nugent 
Edney v. Benham, 7 Q. B. 976; v. Mackenzie (1900), App. Cas. 
Van Renssalaer v. Jewett, 2 N. h3, per Lord Halsbury; Fairchild 
Y. 141; Price v. Thompson. 4 v. FairchUd (Pa.) 9 Atl. 255. 



§ 404] Ebnt. 1463 

grantor or lessor, and a rent whicli was granted by the 
owner of land to another person, without any transfer 
of the land, being merely a right to a periodical pay- 
ment secured on the land. 

In the former case, before the Statute of Quia 
Emptores, since the conveyance of the land created a 
relation of tenure, even in the case of the conveyance of 
an estate in fee simple, the payment of the rent re- 
served was regarded as one of the services incident to 
that relation. ^^ Accordingly, 'a rent reserved upon the 
making of a feoffment, whereby the relation of tenure 
was created, was known as a ''rent service."^*' 

Upon a failure to perform this feudal service of 
paying rent, the lord was, as in the case of default 
in any other of the feudal services, entitled to enforce 
its performance by the seizure of chattels upon the 
land, this being known as the remedy of "distress."^" 
This right of distress was a distinctive feature of the 
particular class of rents known as "rents service." 

The right of distress was an incident of the right 
of lordship, the ''seignory," or, when the tenure was 
for an estate less than a fee simple, of the reversion 
remaining in the lord, and consequently, if the lord 
granted the seignory or reversion while retaining the 
rent, or granted the rent while retaining the seignory 
or reversion, the rent could no longer be enforced by 
distress, and was accordingly thereafter termed a "rent 
seek" or "dry rent."*^ 

In the case of a rent created by the grant of a 
rent by the owner of land, of which he retained the 
ownership, no relation of tenure was created, and con- 
sequently there was no remedy by way of distress for 
the enforcement of the obligation, A rent so created 
was accordingly another form of "rent seek." A 

15. Ante, § 6. § 415. 

16. Litt., § 122; Gilbert, 18. Litt. §§ 218, 225-228; Deu 
Rents, 9. d. Farley v. Craig, 15 N. J. L. 

17. Litt., §§ 213, 216. See /"«<, If 2. 



1464 Real Property. [§ 404 

right of distress might, however, be expressly given in 
the grant, in which case the rent was known as a ''rent 
charge."^'' Rents charge, thus created hy a grant of a 
rent by the owner of land, he retaining the entire 
interest in the land, are quite common in England, they 
being sometimes granted by the purchaser of land as 
part of the consideration therefor, and also being util- 
ized as a mode of providing for younger sons and 
others in family settlements. In this country, however, 
they are very infrequent. They are in effect merely 
annuities secured on land, and in some cases equity will 
enforce their payment by a sale of the land, as in the 
case of a mortgage or other lien. 

After the Statute Quia Emptores, a conveyance of 
land in fee simple no longer had the effect of creating 
a relation of tenure between the feoffor and feoffee, but 
the feoffee merely became substituted in place of the 
feoffer. Consequently, a reservation of rent on such a 
conveyance thereafter made could not be regarded as 
a rent service, and was a rent seek, without the right 
of distress, unless this right was expressly given, so 
as to render it a rent charge.^*^' Since, however, this 
statute did not apply in the case of a conveyance of an 
estate less than a fee, a rent service is, even at the 
present day, created by the reservation of rent upon the 
conveyance or lease by a tenant in fee of a less estate, 
either an estate tail, an estate for life, or one for years ; 
and likewise when a tenant of an estate less than a fee 
conveys or leases for a period less than his own estate, 
so as to leave a reversion in him. Consequently, the 

19. Litt. §§ 218, 219; Co. Litt. In Pennsylvania, a rent created 
150b; 2 Pollock & Maitland, Hist. by a reservation upon the con- 
Eng. Law, 129. veyance of land in fee simple 

20. Litt. §§ 215-217; Co. Litt. is a rent service, but this is 
143b, Hargrave's note; Bradbury owing to the fact that the statute 
V. Wright, 2 Doug. 624; Van Quia Emptores is not in force 
Rensselaer v. Chadwick, 22 N. Y. there. Ingersoll v. Sargeant, 1 
32. Whart. (Pa.) 336. 



§ 405] Eent. 14G5 

rent reserved on the ordinary lease for years is i>rox> 
erly a rent service.-^ 

It is stated by Coke tliat rent service is so called 
''because it hath some corporal service incident to it, 
which at least is fealty,"-^ and upon the strength of this 
statement, as transmitted by Blackstone,-^ it has been 
asserted, in two states,^^ that in view of the fact that 
fealty is not there recognized, rent service is non ex- 
istent. In the time of Coke, since rent service was 
essentially tenurial in character, and fealty was an in- 
cident of tenure,-^ it followed that rent service was 
accompanied by fealty, but the reason that rent service 
was so called appears really to have been that it was in 
itself a service. The expression rent service was in use 
nearly three hundred years before Coke,^^ and the 
writers of that earlier time, as well as the judges, speak 
of rent as one class of service.^' 

§ 405. Payments which are not properly rent. Rent 
can, by the common law authorities, be reserved only 
out of land or things constituting in law a part of the 
land, to which the landlord may have recourse to dis- 
train, and camiot be reserved out of incorjjoreal things.^'' 
Whether the statement that rent must be reserved out 
of things to which the landlord may have recourse to 

21. Litt. §§ 214, 215; Ehrman Maitland, Hist. Eiig. Law, 128 
V. Mayer, 57 Md. 621; Ingersoll note. 

V. Sergeant, 1 Whart. (Pa.) 337; 27. See Bracton, bk. 2, c. 16, 

Den d. Farley v. Craig. 15 N. J. fol. 35a; Britton (Nichol's Ed.) 

L. 192. tk. 1, c. 28, § 16, bk. 2, c. 10, § 1; 

22. Co. Litt. 142a. Y. B. 33-35 Edw. 1, p. 208; Y. B. 

23. 2 Blackst. Comm. 42. 1 & 2, Edw. 2 (Selden Soc.) p. 

24. Herr v. Join, son, 11 Colo. 119, pi. 36; Y. B. 2 & 3, Edw. 2. 
393, 18 Pac. 342; Penny v. Little, p. 140, pi. 58. 

4 111. 30L £8. Co. Litt. 47, 142a; Gilbert. 

25. Litt. §§ 91, 132; Co. Litt. Rents, 120; 2 Blackst. Comm. 41; 
ft7b, 93a. Buszard v. Cupel, 8 Barn. & Cr. 

26. See Y. B. 33-35 Edw. 1, p. 141. 
£52, referred to in 2 Pollock & 



146G Real Property. [-§> 4i)5 

distrain is to be regarded as a statement of the reason 
for the rule precluding the reservation of rent out of 
incorporeal things, or a statement of the result of the 
rule, does not clearly appear. In favor of the former 
view reference may be made to statements to be found 
that the king may resei-ve rent upon a lease of in- 
corporeal things for the reason that, by virtue of his 
jDrerogative, he can distrain on all lands of his lessee,^'' 
and that rent may be reserved on a demise of the 
vesture or herbage of land for the reason that the 
lessor may distrain the cattle on the land."" If the 
common law rule precluding the reservation of rent 
upon a lease of an incorporeal thing is to be regarded 
as based on the inability to distrain thereon, the ques- 
tion might arise whether the rule remains the same in 
any jurisdiction in which, as is the case in most of the 
states, the right of distress no longer exists.^ ^ A 
differentiation originating in the existence or non exis- 
tence of a right of distress might well be ignored after 
the right of distress has been entirely abolished. But 
whether or not the sum named upon a lease of an 
incorporeal thing, to be paid by the lessee, is to be 
regarded as rent, it is recoverable by the lessor in an 
action of contract against the lessee.^^ 

Rent cannot be reserved out of chattels, and con- 
sequently sums to be paid by a bailee of chattels, as 
compensation for their use and enjoyment, are not 
properly referred to as rent.^^ In the case of a lease of 

29. Co. Litt. 47a, Hargrave's 32. Co. Litt. 47a; Dean & Chap- 
note, ler of Windsor v. Gover. 2 Wms. 

30. Co. Litt. 47a. Sauud. 302; Raby v. Reeves, 112 

31. In Raby v: Reeves, 112 N. N. C. 688, 16 S. E. 760. 

C. 688, 16 S. E. 760, sums so re- 33. Spencer's Case, 5 Coke 17a; 

served were regarded as not con- Sutliff v. Atwood, 15 Ohio St. 

&tituting rent, while a contrary 186. In Mickle v. Miles, 31 Pa. 

view was adopted, without dis- iSt. 20, and Vetter's Appeal, 99 

cussion, in Jordan v. Indianapolis Pa. St. 52, it was said that rent 

Water Co., 159 Ind. 337, 64 N. E. may issue, not only from lands 

680. See 1 Tiffany, Landlord & and tenements, but also from the 

Ten. p. 1119. personal property necessary for 



§ 405] Kent. 1467 

land together with chattels, as for instance of a farm 
with the stock thereon, or of a house with the furni- 
ture therein, the whole rent has been regarded as issu- 
ing from the land alone, so as to authorize a distress 
on the land for the entire amount. ^^ So, upon an 
eviction from the land, the liability for rent has been 
regarded as entirely suspended, without reference to 
the fact that the lessee continues to enjoy the use of 
the chattels included in the lease.''' And a declaration 
in an action for the rent was not regarded as defective 
because it averred a demise of land alone, although 
chattels also were included.''*^ On the same principle, 
that the rent issues entirely out of the land, it has 
been decided in one state that the executor of the 
lessor, though entitled to the chattels at the end of the 
lease, has no right to any portion of the rent reserved 
on a lease of land and chattels."'' There are other 
cases, however, which refuse or fail to apply this theory 
when calculated to produce unjust results. For in- 
stance, it has been decided that the grantee of' the 
reversion in the land, without any interest in the chat- 
tels, is not entitled to the whole rent as against the 
grantor retaining the chattels,''^ and there are two cases 

their enjoyment, but by this the 36. Farewell v. Dickenson, 6 

court evidently meant merely that Barn. & C. 251. 

rent does not cease to be rent 37. Armstrong v. Cummings. 

because reserved upon a lease 58 How. Pr. 332; Fay v. Holloran, 

of land which also includes chat- 35 Barb. (N. Y.) 295. 

tels. 38. Buffum v. Deane, 4 Gray 

34. Newman v. Anderton, 2 (Mass.) 385. In Newton v. Speare 
Bos. & P. (N. R.) 224; Selby v. Laundering Co., 19 R. I. 546, 37 
Greaves, L. R. 3 C. P. 594; Lath- Atl. 11, it is decided that the 
rop V. Clewis, 63 Ga. 282: Stein transferee of the land in such 
v. Stely, — (Tex. Civ. App.) — , case is entitled only to the value 
32 S. W. 782. of the use anrj occupation of the 

35. Gilbert, Rents, 175; Y. B. land. 

12 Hen. 8, 11, pi. 5. Emott v. The decision in Jones v. Smith, 

Cole, Cro. Eliz. 255; Read v. 14 Ohio, 606, that when chattels 

Lawnse, 2 Dyer 212 b; Contra are included in the lease, the 

Bro. Abr. Apportionment, pi. 24. covenant to pay rent does not 



1468 Real Propeety. [§ 405 

in which it is decided that if the chattels leased with 
the land are lost or destroyed, the rent should be ap- 
portioned, that is, diminished proportionally.^^ These 
cases, however, appear hardly to accord with the ordi- 
nary rule, hereafter stated,^'^ that no apportionment 
of rent occurs on the destruction of the buildings on the 
land leased, and in one of these cases the decision is 
apparently regarded as involving a repudiation of that 
rule. 

All payments which a lessee agrees with the lessor 
to make, are not necessarily rent. For instance, sums 
which the lessee agrees to pay to the lessor on account 
of good will,*^ of improvements made by the latter,*^ 
or of existing indebtedness,^^ are not rent, the pay- 
ments not being made by way of compensation for the 
use and enjoyment of the property. And this appears 
to be so regardless of w^hether the parties refer to 
such payments as rent, since what constitutes rent is a 
(iuestion of law and not of intention. Likewise, in 
spite of several decisions to the effect that an agree- 
ment by the lessee with the lessor to pay the taxes is 
in effect one to pay rent,'*^ the proper view is, it is sub- 
mitted, that sums thus to be paid to a third person, not 
a representative of the lessor, do not constitute rent.^^ 

pass upon a transfer of the rent So. 546; Miners' Bank of Potts- 
alone appears questionable. ville v. Heilner, 47 Pa. 452. 

39. Newton v. Wilson, 3 Hen. 44. Gedge v. Shoenberger, 83 
& M. (Va.) 470; Whitaker v. Haw- Ky. 91; Roberts v. Sims, 64 Miss, 
ley, 25 Kan. 674, 37 Am. Rep. 277. 597, 2 So. 72; Neagle v. Kelly, 146 
The same view is favored by Le 111. 460, 34 N. E. 947; Knight v. 
Taverner's Case, 1 Dyer 56a. Orchard, 92 Mo. App. 466; Mc- 

40. Post, § 413, notes 81-85. Cann v. Evans, 185 Fed. 93, 107 

41. Smith V. Mapleback, 1 C. C. A. 313. 

Term. Rep. 441. 45. That a stipulation to pay 

42. Hoby v. Roebuck, 7 Taunt. taxes is not a stipulation to pay 
157; Donellan v. Read, 3 Barn. & rent, see Hodgkins v. Price, 137 
Adol. 899. Mass. 13; Evans v .Lincoln County, 

43. First Nat. Bank v. Flynn, 204 Pa. 448, 54 Atl. 321 ("water 
117 Iowa, 493, 91 N. W. 784. Pax- rents") ; People v. Swayze, 15 Abb. 
ton V. Kennedy, 70 :Miss. 865, 12 Pr. (N. Y.) 432. 



§§ 406, 407] Eent. 1469 

It has been well said in this connection that ''rent has 
a fixed legal meaning, and to consider all payments 
which, by the terms of the lease, a tenant is bonnd to 
make, as coming within its definition, would lead to a 
confusion of ideas without necessity or advantage."^" 

§ 406. The reservation of rent. In technical lan- 
guage, the rent which is provided for by the lease is 
"reserved," as distinguished from a part of the land, 
which may be "excepted."^' Xo particular language 
is necessary, it being sufficient if it indicates an inten- 
tion that the rent named shall be paid or rendered to 
the lessor.^^ 

It is a well recognized rule of the common law 
that rent must be reserved in favor of the lessor or 
grantor himself, and not in favor of a stranger, since 
it is paid by way of retribution for the land and should 
consequently go to him from whom the land passes.^^ 
In several states, however, the courts have referred to 
money which the lessee agrees to pay to a stranger as 
rent, without apparently any suspicion that this is not 
in accordance with the common law.""' 

As a rent may be reserved on a conveyance in fee, 
so it may be reserved upon the transfer of the whole 
interest of a tenant for life or for 3^ears, a reversion in 
the transferor being unnecessary.^'^ 

§ 407. Transfer of rights and liabilities. V]iou 
the conveyance of a reversion to which rent is incident, 

46. Garner v. Hannah, 13 N. Rolle, Abr. 447; Gilbert, Rents, 
Y. Super, Ct. (6 Duer) 262, per 54; Ryerson v. Quackenbush, 26 
Slosson, J. X. J. L. 232. 

47. Co. Litt. 47a; Doe d. Doug- .50. Toan v. Pline, 60 Mich. 385, 
las V. Lock, 2 Ad. & El. 705, 743. 27 X. W. 557; Brett v. Sayle, 60 
See post, § 436. Miss. 192; Schneider v. White, 12 

48. Harrington v. Wise, Cro. Ore. 503, 8 Pac. 652; Broddie v. 
Eliz. 486; Attoe v. Hemmings, 2 .Johnson, 1 Sneed (Tenn.) 464. 
Bulstr, 281; Doe d. Rains v. Knel- And cases cited <'>itr, this section, 
ler, 4 Car. & P. 3. note 44. 

49. Litt. § 346; Co. Litt. 143b. 5]. Newcomb v. Harvey, Carth. 
2 R. P.— 18 



UTO Real Peoperty. [§ 407 

the rent also j)asses unless there is a stipulation to the 
contrary;'^- but the reversion may be conveyed without 
the rent, or the rent may be assigned without the 
reversion, the rent and the reversion being thereby 
separated.^ ^ 

The right to rent which has already become due 
does not pass upon a transfer of the reversion unless 
there is an express provision that it shall pass.^^ An 
assignment of rent already due is an assignment of a 
mere chose in action, while an assignment of the rent, 
that is, of the right to the instalments as they come 
due in the future, is properly not an assignment of a 
chose in action, but is a transfer of an interest in 
land.^^'' Were rent a chose in action, and not an in- 
terest in land, it would not have been transferable at 
common law. 

The liability for rent reserved on a lease for years 
passes to an assignee of the leasehold by reason of the 
''privity of estate" existing between him and the owner 
of the reversion, and a transferee of the reversion has 
also, on the same theory, a right to recover the rent. 
This question of the rights and liabilities of the* trans- 

161; Williams v. Hayward, 1 El. 126; Gates v. Max, 125 N. C. 139, 

& El. 1040; McMurphy v. Minot, 34 S. E. 266; Co. Litt. 143a, 151 

4 N. iH. 251. b; 1 Tiffany, Landlord & Ten. § 

52. Walker's Case, 3 Coke 22; 180c. 

Butt V. Ellett, 19 Wall. (U. S.) 54. Flight v. Bentley, 7 Sim. 

544, 22 L. Ed. 183; Steed v. Hin- 149; Thornton v. Strauss, 79 Ala. 

son, 76 Ala. 298; Dixon V. Niccolls, 164; Damren v. American Light 

39 111. 372, 89 Am. Dec. 312; Out- & Power Co., 91 Me. 334, 40 Atl. 

toun T. Dulin, 72 Md. 536, 20 Atl. 63; Wise v. PfafE, 98 Md. 576. 56 

134; Patten v. Deshon, 1 Gray Atl. 815; Burden v. Thayer, 3 

(Mass.) 325. Mete. (Mass.) 76, 37 Am. Dec. 

53. Crosby v. Loop, 13 111. 625; 117; Farmers' & Mechanics' Bank 
Watson Y. Hunkins, 13 Iowa, 547; v. Ege, 9 Watts (Pa.) 436, 36 Am. 
Damren v. American Light & Dec. 130; Dobbs v. Atlas Elevator 
Power Co., 91 Me. 334; Beal v. Co., 25 S. Dak. 177, 126 N. W. 250; 
Boston Car Spring Co., 125 Mass. Kneeland Investment Co. v. Ald- 
157, 28 Am. Rep. 216; Brownson rich, 63 Wash. 609, 116 Pac. 264. 
V. Roy, 133 Mich. 617. 95 N. W. 54a. See 1 Tiffany, Landlord & 
710; Moffatt v. Smith, 4 N. Y. Ten. § 180c. 



§ 407] 



Kent. 



1471 



ferees by reason of their privity of estate will be more 
conveniently considered in connection with the subject 
of the common-law action of "debt" as a remedy for 
nonpayment of rent.^^ 

Covenants to pay rent. An instrument of 



lease usually contains a covenant on the part of the 
lessee to pay rent. Both the benefit and the burden of 
a covenant to i)ay rent, upon a demise leaving a rever- 
sion in the lessor, run with the land,''" and consequently 
an action thereon may be brought by the transferee of 
the reversion,-^" and against an assignee of the lessee.^ ^ 
The liabilit}^ of the original lessee upon his cove- 
nant to pay rent, being of a purely contractual nature, 
is not affected by his assignment of the leasehold, even 
though the assignment is assented to by the landlord.^^ 



55. i'ost, § 414, notes 18-29. 

56. See I'ntr, § 56. 

57. Thursby v. Plant, 1 Saund. 
240, 1 Lev. 259; Midgleys v. Love- 
lace, 12 Mod. 45; Baldwin v. Wal- 
ker, 21 Conn. 168; Webster v. 
Nichols, 104 111. 160; Outtoun v. 
Dulin, 72 Md. 536; Main v. 
Feathers, 21 Barb. (N. Y.) 646; 
Maden v. Woodman, 205 Mass. 4, 
91 N. E. 206. 

58. Palmer v. Edwards, 1 Doug. 
187, note; Steward v. Wolveridge, 
9 Bing. 60; Salisbury v. Shirley, 
66 Cal. 225, 5 Pac. 104; Webster 
V. Nichols, 104 111. 160; Carley v. 
Lewis, 24 Ind. 73; Donelson v. 
Polk, 64 Md. 504, 2 Atl. 824; Lee 
v. Payne, 4 Mich. 106, 119; 
Edwards v. Spalding, 20 Mont. 
54, 49 Pac. 443; Hogg v. Reynolds, 
61 Neb. 758, 87 Am. St. Rep. 522, 
i^ iijl W. 479; Stewart v. Long 
Tsiand R. Co., 102 N. Y. 601, 8 
N. E. 200, 55 Am. Rep. 844; Tyler 
Commercial College v. Stapleton, 



33 Okla. 305, 125 Pac. 443; Moline 
V. Portland Brewing Co., 73 Ore. 
532, 144 Pac. 572; Hannen v. 
Ewalt. 18 Pa. 9; Bowdre v. Hamp- 
ton, 6 Rich. Law (S. C.) 208; 
Pingry V Watkins, 17 Vt. 379. 

59. Thursby v. Plant, 1 Saund. 
237, 1 Lev. 259; Mills v. Auriol, 
1 H. Bl. 433; Randall v. Rigby, 
4 Mees. & W. 134; Evans v. Mc- 
Clure. 108 Ark. 531, 158 S. W. 
487; Bonetti v. Treat, 91 Cal. 223. 
27 Pac. 612, 14 L. R. A. 151: 
Samuels v. Ottinger, 169 Cal. 209, 
Ann. Cas. 1918E, 830, 146 Pac. 
638; Grommes v. St. Paul Trust 
Co., 147 111. 634, 37 Am. St. Rep. 
248, 35 N. E. 820; .Johnstone v. 
Stone, 215 Mass. 219, 102 N. E. 
366; Latta v. Weiss, 131 Mo. 230, 
32 S. W. 1005; Creveling v. De 
Hart, 54 N. J. Law, 338, 23 Atl. 
611; Taylor v. De Bus, 31 Ohio 
St. 468; Pittsburg Consol. Coal 
Co. V. Greenlee, 164 Pa. 549, 30 
Atl. 589; Almy v. Greene, 13 R. 



1472 



Real Property. 



[§ m 



Occasional statements that, in the particular case, the 
lessor's acquiescence in the assignment, or failure to 
assert any claim for rent as against the lessee, had the 
effect of relieving him from liability,'^'^" can be sup- 
ported only on the theory that such action on the part 
of the lessor constituted, under the circumstances of 
the case, a new lease to the assignee, thus causing a 
surrender by operation of law.^'''' And the same may 
be said of occasional statements, ^^"^ that the acceptance 
of rent by the landlord from the assignee relieves the 
lessee from liability.'*''^ Such acceptance of rent can 
have this effect only if it can be regarded as evidencing 
a new lease by the landlord to such assignee. 

An assignee of the leasehold is in a position differ- 
ent from that of the lessee, in that he can relieve him- 
self from further liability for rent by making an as- 
signment to another.^^'^ 



I. 350, 43 Am. Rep. 32; Granite 
Building Corp. v. Rubin, 40 R. I. 
208, L. R. A. 1917D, 100 Atl. 310; 
Kanawha-Gauley Coal & Colve Co. 
V. Sharp, 73 W. Va. 427, 52 L. R. 
A. (N. S.) 968, Ann. Cas. 1916E. 
786, 80 S. E. 781. 

59a. Fry v. Partridge, 73 111. 
51; Colton v. Garham, 72 Iowa, 
324, 33 N. W. 76; Brayton v. Boom- 
er, 131 Iowa, 28, 107 N. W. 1099: 
Kinsey v. Minnick, 43 Md. 112; 
Patton V. Deshon. 1 Gray (Mass.) 
325; Hutclieson v. Jones, 79 Mo. 
496; Jamison v. Reilly, 92 Wash. 
538, 59 Pac. 699. 

59b. Post, § 431, note 89. 

59c. Fry v. Partridge, 73 111. 
51; Kinsey v. Minnick, 43 Md. 
112; "Hutcheson v. Jones, 79 Mo. 
496. Jamison v. Reilly, 92 Wash. 
538, 159 Pac. 699 {semble). 

59d. That acceptance of rent 
from the assignee does not have 
that effect, see Copeland v. Watts. 



1 Starkie 95; Beall v. White, 94 
U. S. 382, 24 L. Ed. 173; Schehr 
V. Berkey, 166 Cal. 157, 135 Pac. 
41; Grommes v. St. Paul Trust 
Co., 147 111. 634, 7 Am. St. Rep. 
248, 35 N. E. 820; Powell v. Jones, 
50 Ind. App. 493, 98 N. E. 646; 
Harris v. Heackman, 62 Iowa, 
411; Johnson v. Stone, 215 Mass. 
219, 102 N. E. 366; Hunt v. Gard- 
ner, 39 N. J. Law 530; Decker 
V Hartshorn, 60 X. J. L. 548, 38 
Atl. 678; McFarland v. May, — 
Okla. — , 162 Pac. 753; Hooks v. 
Bailey, 5 Ga. App. 211, 62 S. E. 
1054; Kanawha-Gauley Coal & 
Coke Co. V Sharp, 73 W. Va. 427, 
52 L. R. A. (N. S.) 968, Ann. Cas. 
1916E, 786, 80 S. E. 781. And 
cases cited i^ost, 8 431, note 94. 
60. Paul V. Nurse, 8 Barn. & 
Cres. 486. Johnson v. Sherman, 
15 Cal. 287, 76 Am. Dec. 481; 
Consolidated Coal Co. v. Peers, 
166 111. 361, 38 L R .A. 624, 46 



§ 407] Eent. 1473 

It has been decided in this country that, even npon 
the assignment of rent, reserved on a lease for years, 
apart from the reversion, the benefit of the lessee's 
covenant runs with the rent, so as to authorize suit by 
the assignee thereon/'^ 

In case of the transfer of the reversion in a part 
only of the land by the lessor, he and his transferee 
are each entitled to recover, on the lessee's covenant to 
pay rent, a proportional part of the rent/'- 

The liability on the covenant to pay rent has been 
regarded as apportionable to such an extent as to ren- 
der an assignee of the leasehold interest in part of the 
land subject to a proportional part thereof, and no 
more.^^ 

Covenant to p?y rent in fee. The benefit of a 



covenant to pay rent reserved or granted in fee will, 
according to the English cases, it seems, not run with 
the rent, so as to be available to subsequent owners 
thereof, the theory being that a covenant will never 

N. E. 1105; Trabue v. McAdams, Wineman v. Hughson, 44 111. App. 

8 Bush. (Ky.) 74; Consumers Ice 22. Contra, Allen v. Wooley, 1 

Co. V. Bixler, 84 Md. 437, 35 Atl. Blackf. (Ind.) 148. 
1086; Bell v. American Protective 62. City of Swansea v. Thomas, 

League, 163 Mass. 558, 28 L. R. A. 10 Q. B. Div. 48. Dreyfus v. Hirt, 

452, 47 Am. St. Rep. 481, 40 N. 82 Cal. 621, 23 Pac. 193; Crosby 

E. 857; Cohen v. Todd, 130 Minn. v. Loop, 13 111. 625; Worthington 

227, L. R. A. 1915E, 846, 153 X. v Cooke, 56 Md. 51; Linton v. 

W. 531; Meyer v. Alliance In v. Hart, 25 Pa. St. 193, 64 Am. Dec. 

Co., 86 N. J. L. 694, 92 At. 1086, 691; Pelton v.. Place, 71 Vt. 430, 

affirming 84 N. J. L. 450, 87 At. 76 Am. St. Rep. 782, 46 Atl. 63. 
476; Durand v. Curtis, 57 N. Y. 63. Babcock v. Scoville, 56 111. 

7, 15 Am. Rep. 453; Washington 461; Cox v. Penwick, 4 Bibb. (Ky.) 

Natural Gas Co. v. Johnson, 123 538; Daniels v. Richardson, 22 

Pa. 576, 10 Am. St. Rep. 553, 16 Pick. (Mass.) 565; Harris v. 

At. 799; Harvard Inv. Co. V. Smith, Frank, 52 Miss. 155; St. Louis 

66 Wash. 429, 119 Pac. 864. Public Schools v. Boatmen's Ins. 

61. Willard v. Tillman, 2 Hill & Trust Co., 5 Mo. App. 91 (aem- 

(N. Y.) 274; Demarect v. Willard, hie); Hogg v. Reynolds, 61 Neb. 

8 Cow. (N. Y.) 206; Patten v. 758, 87 Am. St. Rep. 522, 86 N. W. 

Deshon, 1 Gray (Mass.) 325. See 479; Van Rensselaer v. Bradley, 



1474 



Eeal Property, 



[§ 408 



run with an incorporeal thing.*'* In this country, on the 
other hand, it has been usually held that the benefit 
of the covenant will run with the rent,''^ this being in 
accord with the view held here that a covenant will 
run with an incorporeal thing.^*' 

In this country, likewise, the burden of a covenant 
to pay rent reserved or granted in fee is regarded as 
passing with the land, so as to render the grantee of 
the land personally liable thereon.^^ In England, it 
would seem, in view of the expressions adverse to the 
running of the burden of covenants on conveyances in 
fee,*'^ that the grantee of the land would not be liable on 
the covenant.^^ 

§ 408. Death of person entitled. A rent charge 
granted by the owner of land is real or personal prop- 
erty, according as the grantee is given a freehold es- 
tate therein, or an estate less than freehold.'^*^ A rent 



3 Denia (N. Y.) 135, 45 Am. 
Dec. 451; Van Rensselaer v. 
Gifford, 24 Barb. N. Ry. 349. 

64. Milnes v. Branch, 5 Maule 
& S. 411; Randall v. Rigby, 4 
Mees. & W. 130, 135. 

65. Scott V. Lunt's Adm'r, 7 
Pet. (U. S.) 596, 8 L. Ed. 584: 
Streaper v. Fislier, 1 Rawle (Pa.) 
155, 18 Am. Dec. 604; Trustees of 
St. Mary's Church v. Miles, 1 
Whart. (Pa.) 229; Cook v. Bright- 
ly, 46 Pa. St. 439; Van Rensselaer 
V. Read, 26 N. Y. 558, distinguish- 
ing Devisees of Van Rensselaer v. 
Executors of Plainer, 2 Johns. 
Cas. (N. Y.) 24. But see Irish v. 
Johnston, 11 Pa. St. 488, and the 
discussion of the question in 
American notes to Spencer's Case, 
1 Smith, Lead. Cas. 193. 

66. See onte,^ § 391, notes 30- 
34. 



67. Streaper v. Fisher, 1 Rawle 
(Pa.) 155; Herbaugh v. Zentmyer, 
2 Rawle (Pa.) 159; Hannen v. 
Ewalt, 18 Pa. St. 9; Van Rensse- 
laer V. Read, 26 N. Y. 558; Van 
Rensselaer v. Dennison, 35 N. Y. 
393; Carley v. Lewis, 24 Ind. 
123. On the same principle, the 
burden of a covenant to pay rent 
reserved upon the transfer of a 
life interest in land will bind a 
subsequent transferee of such 
interest. McMurphy v. Minot, 4 
N. H. 251. 

68. See ante, § 390. 

69. Holt, C. J., in Brewster v 
Kidgill, 12 Mod. 166; Copinger 
& Munro's Law of Rents, 473-476. 
But that the burden does run, see 
Sugden, Vendor & Purchaser 
(13th Ed) 483; Harrison, Chief 
Rents, 102. 

70. Knolle's Case, 1 Dyer, 5b; 



§ 409] Rent. 1475 

reserved upon tlie grant of a fee-simple estate in land 
is real property passing to the heir or devisee.'^ 

A rent incident to a reversion partakes of the 
nature of the reversion, and passes therewith on the 
death of the reversioner. Accordingly, it more usually 
passes to the heir, as being reserved by a tenant in fee 
simple making a lease for years, though it is person- 
alty belonging to the executor or administrator, if re- 
served on a sublease by a tenant for years. '^- If, 
however, a rent reserved on a lease for years by a ten- 
ant in fee simple becomes separated from the rever- 
sion,"^ it is equivalent to an estate for years merely in 
a rent charge, and passes to the personal representative 
of the owner, and not to the heir or devisee.'^^ 

Rent which has become due is personal property, 
and consequently, upon the death of the person entitled 
thereto, though still unpaid, it goes to his personal 
representative, and not to his heir or devisee.'^ 

§ 409. Time at which rent is due. A lease of land 
ordinarily states either the periods with reference to 
w^hich the installments of rent are to be computed, as 
by providing for a "weekly," ''monthly," ''quarterly" 
or "annual" rent, or it specifies the exact days on 

Butt's Case, 7 Coke. 23a; 1 Woer- 87 Am. Dec. 324; Stinson v. Stin- 

ner, Administration, § 297. son, 38 :Me. 593. Towle v. Swasey, 

71. Cobb V. Biddle, 14 Pa. St. 106 Mass. 100; Woodhurn's Estate, 
444; In re White's Estate, 167 Pa. 138 Pa. St. 606, 21 Am. St. Rep. 
St. 206, 31 Atl. 569. As to the 932, 21 Atl. 16; Huff v. Latimer, 
particular mode of descent of a 33 S. C. 253, 11 S. E. 758. 

rent charge created by the res- 73. See cute, § 407, note 53. 

ervation of a rent on a grant in 74. Knolle's Case, Dyer, 5b; 

fee, see Co. Litt. 12b, 3 Preston, Williams, Executors (9th Ed.) 727. 

Abstracts, 54; Van Rensselaer v. 75. 1 Woerner, Administra- 

Hays, 19 N. Y. 68. tion, § 300; Mills v. Merryman, 

72. 1 Woerner, Administration, 49 Me. 65; Haslage v. Krugh, 25 
§ 300; Sacheverell v. Froggatt, 2 Pa. St. 97. Bealey v. Blake's Adm'r, 
Saund, 367a, notes; Dixon v. Nic- 70 Mo. App. 229; Ball v. First Nat. 
colls, 39 111. 372, 89 Am. Dec. 312; Bank of Covington, 80 Ky. 501. 
Rubottom V. Morrow, 24 Ind. 202, 



1-476 Eeal Peopekty. [§ 409 

which rent is to be paid. In the latter case the ques- 
tion as to the time for payment of the successive in- 
stallments of rent is merely one of construction of the 
language used. In the former case the rent for the 
particular period named, whether it be a week, a 
month, a quarter, or a year, does not become due until 
the end of such period,^*'' in the absence of a stipula- 
tion,"^^ or, it seems, a custom,''^ to the contrary, the 
theory being that, since rent is a part of the profits of 
the land, it is not payable until it has been earned by 
the tenant's enjojTiient of the premises. In determin- 
ing what is the last day of the rent period, whether a 
year, a quarter, a month, or a week, for this purpose, 
the same method of comimtation is employed, it seems, 
as in determining the length of the tenn,'^^ that is, the 
last day of each period, on which day the rent becomes 
due, is not that corresponding to the first day, but the 
day previous thereto. For instance, if the term begins 
on the second day of January, and rent is in terms pay- 
able monthly, it becomes due on the first and not the 
second day of each of the following months, and if 
payable yearly, it becomes due on the first day of 
each of the following years. ^*^ 

Not infrequently there is an express provision for 
the paymient of the rent, not at the end of the period 

76. Coomber v. Howard. 1 C, 78. Tignor v. Bradley, 32 Ark. 
B. 440; Parker v. Gortatowsky, 781; McParlane v. Williams, 107 
129 Ga. 623, 59 S. E. 286; Castle- m. 33; Watson v. Penn, 108 Ind. 
man v. Du Val, 89 Md. 657, 43 Atl. 21, 58 Am. Rep. 262, 8 N. E. 636; 
821; Hilsendegen v. Scheich, 55 Calhoun v. Atchison, 4 Bush. (Ky.) 
Mich. 468, 21 N. W. 894; Kistler 261, 96 Am. Dec. 299; Buckley v. 
V. McBride, 65 N. J. L. 553, 48 Atl. Taylor, 2 Term. Rep. 600. 

558. Ridgley v. Stillwell, 27 Mo. 79. 1 Tiffany, Landlord & Ten. 

128; Holt V. Nixon, 73 C. C. A. p. 63. 

268, 141 Fed. 952. 80. So if the term begins Jan- 

77. Menough's Appeal, 5 Watts uary 10th, and the rent is pay- 
& S. (Pa.) 432; Hilsendegen v. able quarterly, the rent falls due 
Scheich, 55 Mich. 468, 21 N. W. on April 9th, July 9th, October 
894; Gibbs v. Ross, 2 Head. 9th, and January 9th, and not on 
fTenn.) 437. the tenth day of each of these 



§ 409] Een-t. 1477 

during wliicli it is earned, but at the commencement 
of such period, that is, the rent is made payable "in 
advance," as it is usually expressed. 

Time of day for payment. Rent may be paid 



at any hour of the day on which it becomes due,*^ but 
there is no obligation to pay it until midnight of tliat 
day, and the tenant is consequently not in default until 
the next day.^^ Applying this doctrine, it has been 
held that if the landlord, by his action, the tenancy 
being at will, terminates the tenancy during the day on 
which the rent is payable, the tenant is relieved from 
liability, ^^ and that an eviction on that day under par- 
amount title has a like effect.^'* On the same theory 
it has been decided that if a tenant in fee simple, after 
making a lease, dies on the rent day, the installment 
of rent falling due on that day belongs, not to his per- 
sonal representative, but to his heir or devisee, as 
having become due after his death,®-^ And it seems 
that, in case the reversion is transferred on that day, 
the transferee is entitled to the installment then falling 
due.^^ The English courts refused, however, to apply 
such a theory in the case of a life tenant who, after 
leasing, not under a i)ower, died on a rent day, and 
they regarded the rent in such a case as belonging to 
the personal representative of the life tenant,^" being 
moved, presumably, to this determination, by the fact 

months. Donaldson v. Smith, 1 83. Hammond v. Thompson. 

Ashm. (Pa.) 197. 168 Mass. 531, 47 N. E. 137. 

81. Clun's Case, 10 Co. Rep. 84. Smith v. Shepard, 15 Pick. 

127b; Dibble v. Bowater, 2 El. & (Mass.) 147, 25 Am. Dec. 432. 

Bl. 564; Comyn. landlord & Ten- 85. Duppa v. Mayo, 1 Wms. 

ant, 219. Saund. 287; Rockingham v. Pen- 

•82. Duppa V. Mayo, 1 Wms. rice, 1 P. Wms. 177. 

Saund. 287 and note (17); Cut- 86. See Hammond v. Thomp- 

ting V .Derby, 2 W. Bl. 1077. Left- son, 168 Mass. 531, 47 X. E. 137. 

ley V. Mills, 4 Term Rep. 170; 87. Rockingham v. Penrice, 1 

Wolf V. Rauck, 150 Iowa, 87, Ann. p. Wms. 177; Southern v. Bellasis, 

Gas. 1912D, 386, 129 N. W. 319; 1 P. Wms. 179, note. Strafford 

Sherlock v Thayer, 4 Mich. 355, v. Wentworth, Prec. Ch. 555. 
66 Am. Dec. 539. 



1478 Real Property. [§ 410 

that otherwise the tenant under the lease would have 
escaped liability for the entire rent period.^^ 

Acceleration of rent. Occasionally the lease 

provides that the rent for the whole term shall im- 
mediately become payable upon a named contingency, 
as for instance, upon the insolvency or bankruptcy of 
the tenant,^^"" the removal of his personal property 
from the premises,^^'* or his failure to pay an install- 
ment of rent when due.^^'^ Occasionally the courts ap- 
pear to have applied the doctrine of "anticipatory 
breach," which has been the subject of considerable dis- 
cussion in connection with the law of contracts,^^*^ to 
a case in which the liability for rent was repudiated, 
this being regarded as immediately giving the landlord 
a right of action against the tenant for damages, esti- 
mated on the theory that the latter would make no 
further pajmients of rent as stipulated. ^^"^ 

§ 410. Apportionment as to time. At common 
law, rent is not regarded as accruing from day to day, 
like interest, but it is only upon the day fixed for pay- 
ment that any part of it becomes due.^^ The result of 
this principle is that, ordinarily, the person who is on 
that day the owner of the reversion is entitled to the 
entire installment of rent due on that day, though he 
may have been the owner of the reversion or rent but 
a part of the time which has elapsed since the last 

88. See PoH, § 410. 162 Cal. 602, 123 Pac. 797; Minne- 

88a. Piatt v. Johnson, 168 Pa. apolis Baseball Co. v. City Bank, 

47, 47 Am. St. Rep. 877, 31 Atl. 74 Minn. 98, 76 N. W. 1024; Brown 

935. V. Hayes, 92 Wash. 300, 159 Pac. 

88b. Goodwin v. Sharkey, SO 89. 
Pa. St. 149. 89. Clun's Case, 10 Coke 126b; 

88c. Johns v. Winters, 251 Pa. Dexter v. Phillips, 121 Mass. 178. 

169, 96 Atl. 130; Hart v. Wynne, 23 Am. Rep. 261; Anderson v. 

— (Tex. Civ.) — , 40 S. W. 848. Robbins, 82 Me. 422, 9 L. R. A. 

88d. See Wald's Pollock, Con- 568, 19 Atl. 910; Marshall v. Mose- 

tracts (Williston's Ed.) p. 355 et ley, 21 N. Y. 280; Bank of Penn- 

seg sylvania y Wise, 3 Watts (Pa.) 

88e. Bradbury v. Higgenson, 394. 



<§ 410] Eent. 1479 

rent day. Conversely, one who has been the owner of 
the reversion or rent during a part of that period can 
claim no portion of the installment unless he is such 
owner at the time at which the installment is payable by 
the terms of the lease. The general rule in this regard 
is ordinarily expressed by the statement that rent 
cannot be apportioned as to time. 

Applications of this rule occur as follows: If a 
tenant in fee simple, having made a lease, dies between 
two rent days, the entire installment of rent falling 
due belongs to his heir or devisee, as being the owmer 
of the reversion at the time the installment falls due, 
and the executor or administrator can assert a claim 
to no portion thereof.'^'' And when the landlord makes 
a conveyance of the reversion, the grantee is entitled, 
in the absence of a contrary stipulation, to all the rent 
which falls due at the next rent day, and the grantor 
can claim no part thereof,^ ^ So in case the tenant is 
evicted by title paramount between rent days, the 
landlord cannot claim any portion of the installment 
next falling due,''- and this is a fortiori the case if the 
landlord himself evicts the tenant. The case is the 
same if the landlord terminates the tenancy, either 
by force of an express option so to do,^^"^^ or in accord- 
ance with the nature of the tenancy, as being one at 

90. Clun's Case, 10 Coke, 127a; 92. Emglisli v. Key, 39 Ala. 
Duppa V. Mayo, 1 Wms. Saund. 113; Martin v. Martin, 7 Md. 368, 
287; Anderson v. Robbins, 82 Me. 61 Am. Dec. 364; Adams v. Bige- 
422, 8 L. R. A. 588, 19 Atl. 910. low, 128 Mass. 365; Russell v. 
Eloodworth v. Stevens, 51 Miss. Fabyan, 28 N. H. 543, 61 Am. 
475; Dorsett v. Gray, 98 Ind. 237; Dec. 629. 

Allen V. Van Houton, 19 N. J. 93-94. Zule v. Zule, 24 Wend. 

Law (4 Harr.) 47. (N. Y.) 76, 35 Am. Dec. 600: 

91. English V. Key, 39 Ala. 113; Nicholson v. Munigle, 6 Allen (88 
Martin v. Martin, 7 Md. 368, 61 Mass.) 215. But see dictum in 
Am. Dec. 364; Hull v. Stevenson, Perry v. Aldrich, 13 N. H. 343, 38 
58 How. Pr. (N. Y.) 135, note. Am. Dec. 493, to the effect that 
Bank of Pennsylvania v. Wise, a lease providing for the termin- 
3 Watts (Pa.) 394; Hearne v. ation on a contingency should be 
Lewis, 78 Tex. 276, 14 S. W^ 572. construed as providing for ap- 
portionment. 



1480 Real Property. [§ 411 

will/'^ or for breach of a condition subsequent.^^ By 
force of this rule, at common law, if a tenant for his 
own or another's life makes a lease for years, and the 
lease comes to an end by reason of his death or that 
of the cestui que vie, the lessee entirely escapes liabil- 
ity for the installment of rent next falling due.®'^ The 
lessor or his executor cannot recover the whole install- 
ment, since the life interest has ceased before the 
installment falls due, and he cannot, under the rule 
against apportionment, recover a portion calculated up 
to the time of the cessation of his interest. Nor can the 
remainderman recover any portion of the rent, since the 
lease by which the rent was reserved is no longer opera- 
tive, and also because he is a stranger to the lease. 

The rule forbidding the apportionment of rent, so 
far as concerns a rent reserved on a lease by a tenant 
for his own life, was changed in England, by Stat. II 
Geo. 2, c. 19, § 15, providing that if any tenant for 
life should die before the day for the payment of rent 
reserved on a lease which terminated on such death, 
his executors or administrators might recover from 
the under tenant a proper proportion of the rent, ac- 
cording to the length of time between the last rent day 
and the death of the tenant for life. And a similar 
statute has been enacted in a number of states. By 
later legislation in England the right of apportionment 
has been gVeatly extended, and in a few states there is 
legislation of a like tendency.^ ^ 

§ 411. Amount of the rent. The amount of tlie 
rent to be jjaid must be certain or- capable of reduction 

95. Leighton v. Thee;], 2 SaUc. HI. 365, 55 Am. Rep 424; Watson 
413; Robinson v. Deering, 56 Me. v. Penn, 108 Ind. 21, 8 N. E. 636, 
357; Hammond v. Thompson, 168 58 Am. Rep. 26. Gee v. Gee, 22 
Mass. 531, 47 N. E. 137. N. C. (2 Dev. & B. Eq.) 103. 

96. HaH r. Joseph Middleby, 98. See Tiffmy, Landlord & 
197 Mass. 485, 83 N. E. 1114. Ten. pp. 1076-1079; Wilson v. 

97. Clun's Case, 10 Coke 127a; Hagey, 251 111. 452, 96 N. E. 277; 
ex parte Smyth, 1 Swanst. 337, Smlthvvick v. Oliver. 94 Ark. 451, 
and notes; Hogland v. Crum, 113 127 S. W. 706. 



§ 411] Rent. 1481 

to a certainty,"^ but it is sufficient that the amount 
can be ascertained before the time for payment.^ As 
an example of rent which is thus ascertainable at the 
time for its payment, though not at the time of the 
demise, may be mentioned rent consisting of a certain 
portion of the crop which may be raised upon the land, 
or computed with reference to the amount of minerals 
extracted from the land. So it may be made to fluctuate 
with the price of wheat,^^with the income which the 
tenant may derive from the use of the premises,^ or 
with the particular use which the tenant may make of 
the land."* 

Not infrequently the amount of the rent is reduced 
by an agreement entered into between the landlord and 
tenant after the making of the lease. That such an 
agreement must be supported by a valid consideration 
has been recognized in a numl:er of cases,^ and there are 
several decisions upon the sufficiency of the considera- 
tion in the particular case.^ In spite of these decisions, 
there is, it is submitted, room for question whether, 
applying common law standards, a consideration should 
be regarded as necessary. At common law, one entitled 

99. Co. Litt. 142a; Gilbert, Iowa, 86, 12 X. W. 767; Bow- 
Rents, 9. ditch V. Chickering, 139 Mass. 

1. Co. Litt. 96a; Selby v. 283, 30 N. E. 92; Wharton v. An- 
Greaves, L. R. 3 C. P. 594; Walsh derson, 28 Minn. 301, 9 N. W. 
V. Lonsdale, 21 Ch. Div. 9; Mc- 860; Hazeltine v. Ausherman, 87 
Farlane v. Williams, 107 111. 33; Mo. 410; Coe v. Hobby, 72 N. Y. 
Butcher v. Culver, 24 Minn. 584. 141, 28 Am. Rep. 120. 

2. Kendall v. Baker, 11 C. B. 6. Doherty v. Doe, 18 Colo. 
842. 456, 33 Pac. 165; Raymond v. 

3. Hardy v. Briggs, 14 Allen Krauskopf, 87 Iowa, 602, 54 N. 
(Mass.) 473; Long v. Fitzsimmons, W. 432; Lamb v. Rathburn, 118 
1 Watts & S. (Pa.) 530. Mich. 666, 77 N. W. 268; Ten Eyck 

4. Roulston V. Clark, 2 H. Bl. v. Sleeper, 65 Minn. 413, 67 N. 
563; Bowers v. .\ixon, 12 Q. B. W. 1076; Bowman v. Wright, 65 
558. Neb. 661, 91 N. W. 580, 92 N. W. 

5. Goldsborough v. Gable, 140 580; Holmquist v. Bavarian Star 
111. 269, 15 L. R. A. 294, 29 N. Brew. Co., 1 App. Div. 347, 72 N. 
E. 722. Id. 152 111. 594, 38 N. Y. St. Rep. 443, 37 N .Y. Supp. 
E. 1025; Wheeler v. Baker, 59 :',80. 



1482 Keal Property. [§ 412 

to rent can extin.^uish it by executing a release in favor 
of the person whose estate was charged therewith/ 
and an agreement to reduce the rent is, it is conceived, 
in effect merely a partial release of the rent, that is, 
a pro fauto transfer of the rent by way of release, 
w^hich is perfectly valid at common law, without any 
consideration.^ The common law release, however, re- 
quired a seal, and in so far as a seal may still be 
necessary to the validity of a release, an agreement, 
not under seal, for the partial or total extinguishment 
of rent, might well be regarded as a contract to execute 
a release, to which the court would give elfect only if 
supported by a consideration. 

An agreement, made after the making of the lease, 
in terms to increase the rent, does not, strictly speaking, 
increase the rent. The additional sum agreed to be 
paid is not rent, since it is not reserved upon the mak- 
ing of a lease or other conveyance.^ The only theory 
on which it could be regarded as rent would be by 
considering the agreement as a new demise, effecting 
a surrender by operation of law of the original lease,^" 
but this would give to the agreement a force ordinarily 
not contemplated by the parties. ^^ 

§ 412, Apportionment as to amount. Eent may 
be apportioned as regards the amount thereof, that is, a 
person may become entitled to, or liable for, a portion 
only of the rent originally reserved.^^ Either one of 
three different cases of such apportionment may arise, 
that is: (1) a right to a distinct portion of the rent, 
and to such portion onh', may be vested in 
each of two or more persons; (2) a liability for a 

7. Post, § 413, note 39-41. 32 N. Y. Super. Ct. (2 Sweeny) 

8. See Pollock, Contracts (Wil- 74. 

liston's Ed.) 813. 10. Post, § 431. 

9. Donellan v. Read, 3 Barn. 11. See Doe d. Monck v. Geekie, 

6 Adol. 899; Hoby v. Roebuck, 5 Q. B. 841. 

7 Taunt. 157; Coit v. Braunsdorf, 12. As to apportionment of 



<^ 412] • Eent. 1483 

distinct portion of the rent, and for sucli portion 
only, may be imposed on one person, another being' 
liable for the balance; or (8) the rent may be extin- 
guished as to a joortion, and a ])ortion only. 

An apportionment of the character first referi'ed 
to, resulting from the vesting of the right to a distinct 
])ortion of the rent in each of two or more persons, oc- 
curs when the landlord grants the reversion in part of 
the land, retaining the balance, ^^ and also when he 
transfers the reversion in different parts of the land to 
different persons, not retaining any part thereof.^^ 
And the case is the same when he severs the reversion 
by devise. ^^ An apportionment also takes place if the 
reversion is severed by act of the law, as when, on the 
death of the landlord, it passes to two or more heirs, ^" 
or when it passes to the heir, and, as to one-third, to 
the widow.^" In the case of such a severance of the 
reversion, the tenant is entitled to demand that the 
jury determine, in an action for the rent, the respective 
values of the different portions of the land, and the con- 
sequent extent of his obligation to each owner of a 
part of the reversion. ^^ 

Not only may the rent be apportioned by a sever- 
ance of the reversion, but it may also be apportioned 

rent on lease of land and chat- 22 Pa. 144. 

tels, see wife, § 405, notes 34-40. 15 Ewer v. .Aloyle, Cro. Eliz. 

13. Co. Litt. 148a; 2 Co. Inst. 771; Hare v. Prou:foot. 6 U. C. 
504; West v. Lassells, Cro. Eliz. Q. B. (0. S.) 617. 

851; Bliss v. Collins, 5 Barn. & 16. Leitch v. Boyington, 84 111. 

Aid. 876; Worth ington v. Cooke, i79, 25 Am. Rep. 442; Cole v. Pat- 

56 Md. 51; Biddler v. Hussman, terson, 25 Wend. (X. Y.) 456; 

23 Mo. 597; Grubbie v. Toms, 70 Bank of Pennsylvania v. Wise, 

N. J. Law 522, 57 Atl. 144, Id. 3 Watts (Pa.) 404. 

71 .\. J. Law, 338, 59 Atl. 1117; 17. 1 Rolle Abr. 237, pi. 5. 

Linton v. Hart, 25 Pa. 193. 64 18. Bac. Abr. Rent (.M. 3) ; 

Am. Dec. 691. Fish v. Campion, 1 Rolle, Abr. 

14. Gilbert, Rents. 173; Ehr- 237, pi. 1; Bliss v. Collins, 5 Barn, 
man v. Mayer, 57 Md. 612, 40 Am. & Aid. 876; Hare v. Proudloot, 6 
Rep. 448; Crosby v. Loop, 13 111. U. C. Q. B. (0. S.) 617; Diddle 
625, 14 111. 320; Reed v. Ward, v. Huss, 23 Mo. 597. 



1484 Eeal Property. . [§ 412 

by the landlord without reference to the reversion, this 
being either retained by him or transferred to another, 
as when one who has demised land for a term of years, 
reserving rent, grants to each of several i^ersons, or to 
one person, a portion of the rent.^^ So tenants in com- 
mon of land, after making a lease thereof, reserving 
one entire rent, m-iy, without partitioning the reversion, 
apportion the rent between them.^'^ 

On severance of leasehold. In case the lease- 
hold interest in different parts of the premises becomes 
vested in different persons, each part, or the owner of 
each part, is ordinarily liable only for a proportioned 
part of the rent.-^ And the original lessee remains 
liable to the landlord for the whole rent, under his 
covenant to pay rent.^^ 

A tenant cannot, without the consent of the owner 
of the rent, by any disposition of the land or of a part 
thereof, apportion the rent so as to affect the right of 
such owner to collect the whole rent which may at any 
time fall due, by means of a proceeding against the 
land. Accordingly, if the tenant of part of the leased 
premises is in default, the landlord may distrain upon 
another part,-^ and he may presumably enforce a con- 
dition of forfeiture against such other part as well as 
against that part which belongs to the tenant in default. 

Partial extinction or suspension of rent. Cases 

of the apportionment of the rent by reason of the ex- 
tinction or suspension of a portion of the rent occur 

19. Ards V. Watkins, Cro. Eliz. ardsou, 39 Mass. (22 Pick.) 565; 
651; Bliss v. Collins, 5 Barn. & Hogg v. Reynolds, 61 Neb. 758, 
Aid. 876, 882; Rivis v. Watson, 5 87 Am. St. Rep. 522, 86 N. W. 
Mees. & W. 255. 479; Van Rennselaer v. Bradley, 

20. Powis V. Smith, 5 Barn. & 3 Denio (N. Y.) 135, 45 Am. Dec. 
Aid. 850; Woolsey v. Lasher. 3? 451. 

App. Div. 108, 54 N. Y. Supp. 737. 22. Aute, § 407, note 59. 

21. Babcock v. Seoville, 56 111. 23. Curtis v. Spitty, 1 Bing. 
461; St. Louis Public Schools v. N. Cas. 756; Jackson v. Wychoff, 
Boatmen's Insurance & Trust Co., 5 Wend. (X. Y.) 53. 

5 Mo. App. 91; Daniels v. Rich- 



§ 412] Eent. 1485 

upon the termination of the tenant's estate as regards 
a part of the jDremises. Thus, if the tenant of the whole 
premises leased surrenders his leasehold interest in a 
part thereof, or his leasehold is otherwise in part 
merged in the reversion, the rent is apportioned, it be- 
ing extinguished in an amount proi)ortioned to tlie 
value of the portion as to which the lease is no longer 
outstanding, while still existent as regards the lial- 
ance.-"* The rent is also apportioned in case the land- 
lord re-enters upon a part only of the land for breach of 
a condition of the lease,-^ and in case the tenant is 
evicted from part of the land by title paramount, the 
landlord being thereafter entitled to such portion only 
of the rent as is proportioned to the part of the leased 
premises which the tenant still holds under him.-*^ 
Occasionally the rent is apportioned by reason of the 
lessee's inability to obtain possession of the whole of 
the demised premises.^' 

In laction on covenant for rent. There is a 

dictum in an English case,-** that "in covenant as be- 
tween lessor and lessee, where the action is personal, 
and upon a mere privity of contract, and on that 
account transitory as any other personal contract is, the 
rent is not apportionable." This dictum, it seems clear, 

24. Litt. § 222; Co. Litt. 148a; 470, 74 Am. Dec. 108; Fillebrown 
Smith V. Mallngs, Cro. Jac. 160; v. Hoar, 124 Mass. 580; Cheairs 
Higgins V. California Petroleum & v Coats, 77 Miss. 846, 50 L. R. 
Asphalt Co., 109 Cal. 304, 41 Pac. A. Ill, 78 Am. St. Rep. 546, 28 
1087; Leitch v. Boyington, 84 111. So. 728; Lawrence v. French, 25 
179, 34 L. R. A. 55, 57 Am. St. Wend. (N. Y.) 445; Christopher v. 
Rep. 396; Ehrman v. Mayer, 57 Austin, 11 N. Y. 216; Poston v. 
Md. 612, 40 Am. Rep. 448; Nellis Jones, 37 X. Car. (2 Ired. Eq.) 
V. Lathrop, 22 Wend. (X. Y.) 121, 350; Tunis v. Grandy, 22 Gratt. 
34 Am. Dec. 285; Van Rensse- (Va.) 109, Co. Litt. 148b. 

laer v. Gifford, 24 Barb. (X. Y.) 27. Ante, § 413, notes 43-59. 

349. 28. Stevenson v. Lambard, 2 

25. Walker's Case, 3 Coke 22; East 575, per Lord EHenborough, 
Collins V. Harding, 13 Coke 58. C. J. 

26. Halligan v. Wade, 21 111. 
2 R. P.— 19 



1486 Eeal Pkoperty. [§ 412 

is not correct as applied to an action upon the covenant 
for rent, by a lessor who has disposed of the reversion 
in part of the leased premises, he being entitled to 
recover a proportionate part of the rent and no more.^^ 
Whether it is correct as applied to a case in which the 
rent is in part extinguished or suspended, as upon a 
surrender or eviction by title paramount, it is difficult 
to say. The covenant might frequently be construed as 
one to pay the rent that may become due, rather than 
to pay the amount reserved, in which case the liability 
under the covenant would be the same as in an action 
of debt for rent, and a loss of the possession of part 
of the premises would be a ground for a pro tanto 
reduction of liability in an action on the covenant, as 
in an action of debt.^*^ In so far as the covenant is not 
'susceptible of this construction, it is somewhat difficult 
to find a satisfactory ground on which to base a partial 
reduction of liability in case of the partial loss of pos- 
session by the tenant.'^ ^ The courts might possibly 
apply the somewhat indefinite doctrine of failure of 
consideration in this connection. 

Of rent charge. A rent charge is not appor- 



tionable to the same extent as a. rent service. Rent 
charges were never favored by the courts as were rents 
service, which were regarded as a part of the feudal con- 
stitution of the realm.^- Consequently, if the owner of the 
rent acquires a part of the land from which it issues, by 

29. Swansea v. Thomas, 10 Q. Poston v. Jones, 37 N. C. (2 Ired. 
B. Div. 48; Worthington v. Cooke, Eq.) 350, 38 Am. Dec. 683, it is at 
56 Md. 51; Linton v. Hart, 25 least suggested that in such case 
p. 193, 64 Am. Dec. 691. a court of equity would inter- 

30. See Baynton v. Morgan, 22 vene in order to compel an ap- 
Q. B. Div. 81, per Fry, J. portionment. 

31. In Shuttleworth v. Shaw, 6 32. See Gilbert, Rents, 152. A 
Upper Can. Q. B. 539, it was de- rent seek, likewise, has been re- 
cided that in an action of coven- garded as not apportionable by 
ant for rent there could be no the act of a party. Vin. Abr., 
apportionment on account of the Apportionment (A) 2; Id., Rent 
partial eviction of the tenant. In (Ga.) 12. 



-§ 41b'] Eent. 1487 

voluntary conveyance, no apportionment occurs, and 
the whole rent is extinguished.^^ It is apportioned, how- 
ever, if the owner of the rent releases a part thereof,"* 
or if he acquires a part of the land by descent.^^ And 
even on a voluntary conveyance to him of part of the 
land an apportionment occurs if it is so agreed be- 
tween the parties to the conveyance, this in effect 
creating a new rent charge,"^^ Upon a transfer of a 
portion of the rent to another an apportionment oc- 
curs.^''' 

§ 413. Extinction or suspension of rent^ By 

release. The right to rent ceases upon the making of a 
release of the rent by the owner thereof in favor of 
the owner of the land.^^ If the release is in terms of 
a portion only of the rent, the balance remains existent 
as a charge on the whole land.'''' A release, as under- 
stood at common law, is an instrument under seal, and 
such an instrument is valid though without any con- 
sideration.^'^ An agreement not to claim any rent, if 
not under seal, and not supported by a consideration, 
is, like any other such agreement, invalid.*^ 

The fact that no rent has been demanded, or that 
no rent has been paid, for a very considerable period, 
even twenty years or more, does not raise a pre- 
sumption that the rent has been released, thougli it may, 
by reason of the statute of limitations, prevent a re- 

33. Litt. § 222; Co. Litt. 147b, 38. Litt. § 479; Co. Litt. 280a; 
148a. Howell v. Lewis, 7 C. & P. 566. 

34. Co. Litt. 148a; Bac. Abr., 39. Co. Litt. 148a; 2 Leake 
Rent (m) 1. 407; Ingersoll v. Sargeant, 1 

35. Litt. § 224; Co. Litt. 194b; Whart. (Pa.) 337. 

Cruger v. McLaury, 41 N. Y. 219. 40. Co. Litt. 264b; Bac. Abr., 

36. Co. Litt. 147b, and note; Release (A.); Wald's Pollock. 
Van Rensselaer v. Chadwick, 22 Contracts (Williston's Ed.) 812. 
N. Y. 32. 41. See Haseltine v. Ausher- 

37. Co. Litt. 148a; Gilbert, man, 87 Mo. 410; Kaven v. 
Rents, 163; Farley v. Craig. 11 N. Chrystie, 84 N. Y. Supp. 470; 
J. Law (<; Halst.) 262. Donaldson v. Wberry. 29 Out. 



1488- 



Real Pboperty. 



[§ 4].-? 



covery of particular installments of rent overdue.^- 
Withholding of possession. It has ordinarily 



been held that the lessee is not liable for rent in case 
the lessor prevents him from taking possession under 
the lease.*^ By some decisions, even though the lessee 
takes possession of part of the leased premises, he is, 
if excluded from the balance, not liable for any part 
of the rent or on a quantum meruit,*'^ but in other cases 
a different view is taken.*^ The exclusion of the tenant 
by the landlord from part of the leased premises ap- 
pears so analogous to that of an eviction of the tenant 
by the landlord from part,^^ that it might well, it seems, 
be regarded as having a similar effect in suspending the 
entire rent.^'^ 

That the lessee, without being prevented from tak- 
ing possession, fails to take possession, is obviously no 
defense to a claim for rent.^^ One cannot thus rid 
himself of an obligation assumed by him, merely be- 
cause he finds it convenient to withdraw from his bar- 
gain. 



552. But in Hill v. Williams, 41 
S. C. 134, 9 S. E. 290, the con- 
trary appears to be assumed. 

42. Ehrman v. Meyer, 57 Md. 
612, 40 Am. Rep. 448; Jackson 
V. Davis, 5 Cow. 130, 15 Am. Dec. 
451; Lyon v. Odell, 65 N. Y. 28; 
St. Mary's Church Trustees v. 
Miles, 1 Whart. (Pa.) 229. 

43. Reed v. Reynolds, 37 Conn. 
469; Moore v. Guardian Trust 
Co., 173 Mo. 218, 73 S. W. 143; 
Penny v. Fellner, 6 Okla. 386, 50 
Pac. 123; McClurg v. Price, 59 
Pa. 420, 98 Am. Dec. 356; MerriU 
V. Gordon, 15 Ariz. 521, 140 Pac. 
496. See ante, § 50. 

44. Moore v. Mansfield, 182 
Mass. 302, 65 N. E. 398, 94 Am. 
St. Rep. 657; AlcClurg v. Price 59 



Pa. 420, 98 Am. Dec. 356; Penny 
V. Fellner, 6 Okla. 386, 50 Pac. 
123. See McLeod v. Russell, 59 
Wash. 676, 110 Pac. 626. 

45. See Knox v. Hexter, 42 N. 
Y. Super. Ct. (10 Jones & iS.) 8; 
Eldred v. Leahy, 31 Wis. 541, 11 
Am. Rep. 613. 

46. Ante, § 58. 

47. Post, this section, note 95. 

48. Levi v. Lewis, 6 C. B. N. 
S. 766; Douglass v. Branch Bank, 
19 Ala. 659, 54 Am. Dec. 207; 
Little V. Hudgins, 117 Ark. 272. 
174 S. W. 520; Marix v. Stevens, 
10 Colo. 261, 15 Pac. 350; Union 
Pac. R. Co. V. Chicago, R. I. & 
P. R. Co., 164 111. 88, 45 N. E. 
488; Brown v. Cairns, 107 Iowa, 
727, 77 N. W. 478; Becar v. Flues, 



§ '^I'S] Kent. 1489 



Exclusion by paramount owner. Tliat tlie 

lessee is niialjle to obtain possession owing to the pos- 
session of one having paramount title^ is a good defense 
to a claim for the rent,^^ and this has been held to be 
so even though the exclusion from possession extends 
to but a part of the premises.^" It has been decided, 
however, that if the lessee takes possession of the part 
from which he is not excluded, he is liable in an action 
of use and occupation accordingly. -"^^ It would seem 
that the partial exclusion of the lessee from possession 
by one having paramount title might well be assimilated, 
so far as concerns its effect on his liability for rent, to 
his partial eviction by such person, so as to call for 
an apportionment of the rent,^- and there are occasional 
decisions to that effect.^^ 

One holding under a previous unexpired lease by 
the same lessor holds by paramount title, for this 
purpose,^^ as for others.'^^-^^ 

It has been asserted in England and Canada,^'^ 
that possession of part of the leased premises, by a 
third person holding under an unexpired prior lease 

64 N. Y. 518; McGlynn v. Brock, S';5 (semble). 

Ill Mass. 219. 52. Post, this section, note I>. 

49. Brandt v. PhiUppi, 82 Cal. 53. McLoughlin v. Craig, 7 Ir. 
640, 23 Pac. 122, 7 L. R. A. 224; C. L. 117; Seabrook v. Moyer, 88 
Duncan v. Moloney, 115 111. App. Pa. 417. 

522; Andrews v. Woodcock, 14 54. See Neale v. McKenzie, 1 

Iowa, 397; Posten v. Jones, 37 Mees. & W. 746; Dengler v. 

i\. C. (2 Ired, Eq.) 350, 38 Am. Michelssen, 76 Cal. 125, 18 Pac. 

Dec. 683; Maverick v. Lewis, 3 138; Lawrence v. French, 25 

McCord (S. C.) 211; State Uni- Wend. (N. Y.) 443, 7 Hill, 519; 

versity v. Joslyn, 21 Vt. 52. See Tunis v. Grandy, 22 Gratt. (Va.) 

entc, § 50. 519. 

50. Neale v. McKenzie, 1 Mees. 55-56. Ante, § 58(a), notes 43- 
& W. 746; Dengler v. Michelssen, 46. 

76 Cal. 125, 18 Pac. 138. 57. Neale v. McKenzie, 1 Mees. 

51. Lawrence v. French, 25 & W. 747; Ecclesiastical Com'rs 
Wend. (N. Y.) 443, 7 Hill, 519; of Ireland v. O'Connor, 9 Ir. C. 
Tunis V. Grandy, 22 Gratt. (Va.) L 242; Holland v. Vanstone, 27 
109; Wtitson v. Wand, 8 Exch. U. C. Q. B. 15. 



1490 Real Pkopekty. [§ 413 

made by the same lessor, will not constitute even a 
partial defense to an action for rent under the second 
lease, if this latter is under seal, the theory being that 
it then cgerates as a lease in possession of that part 
of the land of which the lessor has possession, and a 
lease of the reversion (concurrent lease^^) of that part 
held by the prior lessee. Such a view, that the second 
lease will, so far as possible be regarded as a concurrent 
lease, is not suggested in any of the cases decided in 
this country as to the liability for rent when a part 
or the whole of the premises is in the possession of a 
prior lessee.'^ In any case, it would seem, the question 
whether the second lease may be so regarded for the 
purpose of imposing liability for rent, would be one of 
the construction of the language used. 

Exclusion by stranger without right. There 



are several cases to the effect that the lessee's inability 
to obtain possession of the premises owing to the pres- 
ence of a third person wrongfully in possession, such 
as a tenant holding over his term, is no defense to an 
action for rent.*'° This view accords with the recog^ 
nized rule in the analogous case of the eviction of the 
tenant by a wrongdoer.^ ^ There are, however, to be 
found occasional dicta "^^ and decisions ^^ to the con- 
trary. 

Merger and surrender. If the leasehold in- 
terest and the immediate reversion thereon become 
vested in the same person or persons, either by the 
acquisition of the former interest by the landlord, or 

58. Ante, § 53(c). 52. And see Field v. Herrick, 101 

59. Ante, this section, note 54. 111. 110. 

60. Mechanics' & Traders' Fire 61. 2 Tiffany, Landlord & 
Insurance Co. v. Schott, 2 Hilt. Ten. p. 1301. 

(N. Y.) 550; Ward v. Edesheimer, 62. Rieger v. Welles, 110 Mo. 

43 N. Y. St. Rep. 138, 17 N. Y. App. 166. 84 S. W. 1136; Smart 

Supp. 173; Cozens v. Stevenson. v. Allegaert, 14 Phila. (Pa.) 179. 

5 Serg. & R. (Pa.) 421; Univer- 63. Kean v. Kolkschneider. 21 

sity of Vermont v. Joslyn, 21 Vt. Mo. App. 538; Hatfield v. Fuller- 



§ 413:] 



Rent, 



1491 



by tlie acquisition of the latter interest "by the tenant, 
or by the simultaneous acquisition of both interests 
by the same person or persons, the tenant's interest is 
merged in the reversion,^^ and the rent reserved upon 
the creation of the lesser estate is extinguished.*''' 
When merger occurs as a result of the acquisition of 
the tenant's interest by the landlord, the termination 
of the tenancy and extinguishment of the rent are or- 
dinarily said to be the result, not of merger, but of 
surrender,***' that is, of the yielding up of the particular 
estate to the landlord.**' If the merger or surrender 
takes place as to a part of the leased premises only, the 
rent is proportionately extinguished.^^ The merger or 
surrender obviously does not atfect the liability for 
rent which has previously accrued.*''' 



ton, 24 in. 278; Goldman v. 
Dieves, 159 Was. 47, 149 N. W. 
713. 

64. Ante, § 59(e). 

65. Otis V. California Petroi- 
cum & Asphalt Co., 109 Cal. 304, 
41 Pac. 1087; Otis v. McMillan, 
70 Ala. 46; Erving v. Jas. H. 
Goodman & Co. Bank, 171 Cal. 559, 
153 Pac. 945; Liebschutz v. 
Moore, 70 Ind. 142, 36 Am. Rep. 
182; Casey v. Gregory, 52 Ky. (13 
B. Mon.) 505, 56 Am. Dec. 581; 
Matter of Eddy, 10 Abb. N. Cas. 
(N. Y.) 396; Nellis v. Lathrop, 
22 Wend. (X. Y.) 121, 34 Am. Dec. 
285; Mixon v. Coffield, 24 N. Car. 
(2 Ired Law) 301; Sutliff v. At- 
wood, 15 Ohio St. 186; Alvord v, 
Banfield, 85 Ore. 49, 166 Pac. 
549. 

66. American Bonding Co. v. 
Pueblo Inv. Co. (C. C. A.), 150 
Fed. 17, 19 L. R. A. (N. S.) 557; 
Terstegge v. First German Mut. 
Benevolent Soc, 92 Ind. 82, 47 
Am. Rop. 135; Dills v. Stobie, 81 



111. 202; Armour Packing Co. v. 
Des Moines Pork Co., 116 Iowa, 
723, 93 Am. St. Rep. 270, 89 N. 
W. 196; Amory v. Kannoffsky, 117 
Mass. 351, 19 Am. Rep. 416; 
Kiernan v. Germain, 61 Miss. 498; 
Underbill v. Collins, 132 N. Y. 
269, 30 N. E. 576; Everett v. Wil- 
liamson, 107 N. C. 204, 12 S. E. 
187, 22 Am. St. Rep. 870; Minne- 
apolis Co-Operative Co. v. Wil- 
liamson, 51 Minn. 53, 38 Am. St. 
Rep. 473, 52 N. W. 98; Frankel 
V. Steman, 92 Ohio St. 197, 110 
N. E. 747; Pratt v. H. M. Richards 
Jewelry Co., 69 Pa. 53, 8 Am. Rep. 
212; West Concord Mill Co. v. 
Hosmer, 129 Wis. 8, 116 Am. St. 
Rep. 931, 107 N. W. 12. 

67. Post, § 431. 

68. Ante, § 412, note 24. 

69. Kastner v. Campbell, 6 
Ariz. 145, 53 Pac. 586; Sperry v. 
Miller, 8 N. Y. 336, 16 N. Y. 407; 
Nicol V. Young, 68 Mo. App. 448; 
Johnson v. Muzzy, 42 Vt. 708, 1 
Am. Rep. 365; Attorney General 
V. Cox, 3 H. L. Cas. 340. 



1492 



Real Pkopebty. 



[§ 413 



By the English decisions,^^^ if the reversion on a 
sublease is merged in the original reversion, the sub- 
lessee's liability for rent is terminated, the same prin- 
ciple applying as in the case of surrender of the. sub- 
reversion. How far this doctrine would be applied 
in this country is doubtful/'-'^ 

AbandoP-ment by tenant. Tliat the tenant 



abandons the premises does not affect his liability for 
rent,*'^^ unless the landlord, by assuming control of the 



69a. Thre'r v. Barton, Moore, 
94; Webb v. Russell, 3 Term Rep. 
393. 

69b. The doctrine was refer- 
red to as an existing doctrine in 
Bailey v. Richardson, 66 Cal. 416, 
5 Pac. 910; Buttner v. Kasser, 19 
Cal. App. 755, 127 Pac. 811; Kri- 
der V. Ramsay, 79 N. C. 354; Mc- 
Donald V May, 96 Mo. App. 236, 
69 S. W. 1059. See Williams v. 
Michigan Cent. R. Co., 133 Mich. 
448, 103 Am. St. Rep. 458, 95 N. 
W. 708. That the sublessor can- 
not recover rent after his sur- 
render of his leasehold interest is 
decided in Grundin v. Carter, 99 
Mass. 15; Pratt v. Richards 
Jewelry Co., 69 Pa. 53; and as- 
sumed in Buttner v. Kasser, 19 
Cal. App. 755, 127 Pac. 811. But 
as opposed to the sublessee's im- 
munity from rent on the theory of 
the merger of the subreversion, 
see Hessel v. Johnson, 129 Pa. 
173, 5 L.. R A. 851, 15 Am. St. 
Rep. 716, 18 Atl. 754. See a ju- 
dicious criticism of the doctrine 
in an editorial note in 13 Colum- 
bia Law Rev 245. 

69c. Wolffe V. Wolff, 69 Ala. 
549, 44 Am. Rep. 526; Respini v. 
Porta, 89 Cal. 464, 26 Pac. 967, 23 
Am. St. Rep. 488; Miller v. Ben- 



ton, 55 Conn. 540, 13 Atl. 678; 
Stobie V. Dills, 62 111. 432; Mar- 
tin V. Stearns, 52 Iowa, 345, 35 
Am. Rep. 278, 3 N. W. 92; Bick- 
ford V. Kirwin, 30 Mont. 1, 75 
Pac. 518; Prucha v. Coufal, 91 
Neb. 724, 136 N. W. 1019; Under- 
bill V. Collins, 132 N. Y. 269, 30 
N. E. 576; Tyler Commercial Col- 
lege V. Stapleton, 33 Okla. 305, 
125 Pac. 443; Bowen v. Clarke, 
22 Or. 566, 29 Am. St. Rep. 625, 
30 Pac. 430; Reeves v. Comesky, 
168 Pa. St. 571, 32 Atl. 96; Bar- 
low V. Wainwright, 22 Vt. 88, 53 
Am. Dec. 79. 

In Clinton Amusement etc. Co. 
V, Dranow, 88 N. J. L. 701, 96 Atl. 
893, the highest court of the state 
says that there was an abandon- 
ment, not a surrender, by the 
tenant. This refusal to recognize 
that a surrender by operation of 
law may result from an aban- 
donment is caused apparently by 
a failure to distinguish the tech- 
nichal term "surrender," as ap- 
plied to an estate, from its or- 
dinary use as applied to a re- 
linquishment of possession. The 
common law does not recognize 
abandonment as a method of 
transferring or terminating 
estates in land, and the statement 



<^ 413] Eent. 1493 

premises, or otherwise, can be regarded as in effect 
accepting the possession at the hands of the tenant, so 
as to effect a surrender by operation of law, as else- 
where explained.^^*^ The landlord is, in such case, 
under no obligation to lease the premises to another, 
but may allow them to lie vacant, and yet recover the 
installments of rent as they accrue.*^^^ The fact that the 
landlord, upon the abandonment by the tenant, makes a 
lease to another will, under some circumstances and 
in some jurisdictions, effect a surrender, so as to relieve 
the tenant from liability for rent thereafter accruing,*^*' ^ 
but in so far as it does not do this, the new letting is 
regarded as on behalf of the former tenant, so as to 
relieve him from the rent under the original lease to the 

extent of the renf received under the new lease, and no 
further.«9s 

Forfeiture of leasehold. Upon the assertion 



of a forfeiture by the landlord for breach of condition,'" 

while he is entitled to rent which has already become 

referred to seems unfortunate Broyles, — Tex. Civ. ^, 141 S. 

The lower court was, it is sub- W. 283; Brown v. Hayes, 92 Wash, 

mitted, correct in using the ex- 300, 159 Pac. 89. See editorial 

pression surrender. note 13 Columbia Law Rev. 79. 

69d. Post, § 431, note 96 et 69f. Post, § 431, note 8. 

seq. 69g. Meyer & Co. v Smith, 33 

69e. Bradbury V. Higgenson, Ark. 627; Marshall v. Grosse 

162 Cal. 602, 123 Pac. 797; Board- Clothing Co., 184 111. 421, 75 Am. 

man Realty Co. v. Carlin, 82 Conn. St. Rep. 181, 56 N. E. 807; Brown 

413, 74 Atl. 682; Rau v. Baker, v. Cairns, 107 Iowa, 727, 77 N. W. 

118 111. App. 150; Patterson v. 478; Oldewurtel v. Wiesenfeld, 97 

Emerich, 21 Ind App. 614, 52 N. Md. 165, 99 Am. St. Rep. 427, 54 

E. 1012; Leavitt v. Maykel, 210 Atl. 969; Alsup v Banks, 68 Miss. 

Mass 55, 96 N. E. 51; Merrill v. 664, L. R. A. 598, 24 Am. St. Rep. 

Willis. 51 Neb. 162, 70 N. W. 914; 294, 9 So. 895, 13; Conner v. War- 

Whitcomb v. Brant, 90 N. J. L. ner, 52 Okla. 630, 152 Pac. 1116; 

245, 100 Atl. 175; Underbill v. Bowen v. Clarke, 22 Ore. 566, 29 

Collins, 132 N. Y. 269. 30 x\. E. Am. St. Rep. 625, 30 Pac. 430; 

576; Nat. Exch. Bank v. Hahn, 33 Auer v. Penn, 99 Pa. 370, 44 Am. 

Okla. 516, 126 Pac. 554; Milling v. Rep. 114. 

Becker, 96 Pa. 182: Goldman v. 70. iiite, §§ 74-89. 



1494 Real Peopertt. [§ 413 

due,"^^ he cannot recover rent subsequently to become 
due, or rather, there is no rent subsequently to become 
dueJ- 

Though there is no liability for rent falling due 
after the enforcement of a forfeiture, a provision of the 
instrument of lease continuing the liability of the lessee 
in such case is usually regarded as effective. Thus it 
has been decided that the parties may validly stipulate 
that, upon the termination of the tenancy by re-entry 
or equivalent action on the part of the landlord, he may 
re-let to another at the risk of the tenant, the latter 
remaining liable for any deficiency in the amount so 
obtained as compared with that reserved by the original 
lease. '^•'' And likewise, a provision that the lessee shall 
remain liable for rent in spite of the forfeiture of his 
term will enable the landlord to claim from the former 
tenant any such deficiency in the amount obtained from 
the new tenant.'^ To obtain the benefit of such a pro- 
vision, the landlord must exercise reasonable diligence to 
make a new^ lease at the best possible rent.'^ In the case 

71. Hartshorne v. Watson. 4 107 Mich. 389, 65 N. W. 234; 
Bing. N. Cas. 178; Mackubin v. Sharon v. American Fidelity Co., 
Whetcroft, 4 Har. & McH. (Md.) 172 Mo. App. 309, 157 S. W. 972; 
135; Hinsdale v. White, 6 Hill. Hackett v. Richards, 13 N. Y. 
(N. Y.) 507; McCready v. Linden- 138. 

born. 172 N. Y. 400, 65 N. E. 208; 73. Way v. Reed, 6 Allen 

Rubicum v. Williams, 1 Ashm. (Mass.) 364; Woodbury v. Spar- 

(Pa.) 235; Galbraith v. Wood, 124 rell Print, 187 Mass. 426, 73 N. 

Minn. 210, 144 N .W. 945; Youngs E. 547; Hall v. Gould, 13 N. Y. 

Mining Co. v. Courtney, 219 Fed. 138; Baldwin v. Thibadeau, 28 

868, 135 C. C. A. 538. Abb. N. Cases 14, 17 N. Y. Supp. 

72. Oldershaw v. Holt, 12 532; Yuan Suey v. Fleshman, 65 
Adol. & E. 590; Watson v. Mer- Ore. 606, 133 Pac. 803. 

rill, 69 C. C. A. 185, 136 Fed. 359; 74. Grommes v. St. Paul Trust 

Coburn v. Goodall, 72 Cal. 498, 1 Co., 147 111. 634, 37 Am. St. Rep. 

Am. St. Rep. 75, 14 Pac. 190; 248, 35 N. E. 820. But in Pusey 

Grommes v. St. Paul Trust Co., v. Sipps, 56 Pa. Super. Ct. 121, 

H7 111. 634, 37 Am. St. Rep. 248, such a provision appears to be 

35 N. E. 820; Hall v. Joseph regarded as nugatory. 

Middleby, Jr., 197 Mass. 485, 83 75. International Trust Co. v. 

N. E. 1114; Wreford v. Kenrick, Weeks, 203 U. S. 364, 51 L. Ed. 



•^ 413:] Eent. 1495 

of a stipulation of this character, continuiTig the lessee's 
liability for the amoniit of the rent reserved in the lease, 
or for any excess of that amount over that obtainable on 
a new lease, the continuing liability is not, properly 
speaking, for rent, since the tenancy to which the rent 
appertained has ceased to exist. It is merely a contrac- 
tual liability to the extent named." ^ 

As to whether, when rent is payable in advance, 
the landlord is entitled to the full installment of rent in 
spite of his re entry during the rent period, the cases 
are not in accord. On principle, he having become 
entitled to the installment on the rent day, his right 
thereto w^ould properly seem to be unaffected by his 
subsequent enforcement of a forfeiture.'^^^ 

Taking land for public use. Upon the taking 

of the whole of the leased land for public use under 
the power of eminent domain, the ownership of the land 
thereby passing to the state or other public agency, the 
liability for rent, it is usually agreed, comes to an 
end."^^ Upon the taking of a part of the premises, ac- 

224; Edmands v. Rust & Richard- ham v. Phillips, 1 E. D. Smith 
son Drug Co., 191 Mass. 123, 77 (N. Y.) 416. See editorial note. 
N. E. 713; Woodbury v. Sparrell 14 Columbia Law Rev. 354. Con- 
Print, 198 Mass. 1, 84 N. E. 441. tra, Sutton v. Goodman, 194 

76. See Hall v. Gould, 13 N. Y. Mass. 389, 80 N. E. 608; Hall v. 

127; Grommes v. St. Paul Trust Middeby, 197 Mass. 485, 83 N. E. 

Co., 147 111. 634, 37 Am. St. Rep. m^; Wreford v. Kenrick, 107 

248, 35 N. E. 820; Woodbury v. Mich. 389, 65 N. W. 234. 
Sparrell Print, 187 Mass. 426, 73 77. Corrigan v. Chicago, 144 

N. E. 547; Stott Realty Co. v. 111. 537, 21 L. R. A. 212, 33, N. E. 

United Amusement Co., 195 Mich. 746; O'Brien v. Ball, 119 Mass. 

684, 162 N. W. 283. 28, 20 Am. Rep. 299; Lodge v. 

76a. That he is entitled to the Martin, 31 App. Div. 13, 52 N. 

full installment, see Ellis v. Y. Supp. 385; Barclay v. Pickler, 

Rowbotham (1900), 1 Q. B. 740; 38 Mo. 143; Dyer v. Wightman, 

Hepp Wall Paper Co. v. Deahl, 66 Pa. 425; McCardell v. Miller, 

53 Colo. 274, 125 Pac. 491; Gal- 22 R. I. 96, 46 Atl. 184. Contra, 

braith v. Wood, 124 Minn. 210, Foote v. City of Cincinnati. 11 

144 N. W. 945; Healy v. McManus, Ohio, 408, 38 Am. Dec. 737; Foltz 

23 How. Pr. (N. Y.) ; Cunning- v. Huntley, 7 Wend. (N. Y.) 210. 



1496 Keal Peopeety. [§413 

cording to some decisions, the liability for rent contin- 
ues as before.'^^ But there are other decisions to the 
effect that in such a case the rent is apportioned, the 
tenant being thereafter liable only for an amount pro- 
portioned to the value of the part of the premises not 
taken. "^^ These latter decisions are, it is conceived en- 
tirely in harmony with principle, and they unquestion- 
abl}^ arrive at an equitable result. Under such a view, 
the tenant is, in the condemnation proceeding, awarded 
merely the amount, if any, by which the value of his 
leasehold interest, tliat is, the excess in the rental value 
over the rent reserved, is diminished owing to the 
taking. Under the opposite view, the tenant is award- 
ed the diminution in the rental value caused by the 
taking, on the theory that lie will ultimately pay it over 
to the landlord in the form of rent, which, as a matter 
of fact, he may or may not do. 

It would seem that when the ownership of either a 
part or the whole of the leased premises, the "fee" 
as it is usually referred to, is taken under the power 
of eminent domain, the liability for rent is proportion- 
ally reduced or extinguished, for the reason that the 
leasehold interest in the land taken has come to an 
end by reason of its merger in the reversion. When the 
reversion and the leasehold are voluntarily transferred 
to a single person by their respective owners, a merger 
results, and the same thing occurs when they are so 
transferred involuntarily, as by condemnation, the 
fact that the transferee is the state or some other pub- 
lic agency being immaterial. On the other hand, in 

78. Stubbings v. Village of 597; Board of Levee Commission- 
Evanston, 136 111. 37, 11 L. R. A. ers v. Johnson, 66 Miss. 248, 6 
839, 29 Am. St. Rep. 300, 26 N. So.' 199; Cuthbert v. Kuhn, 3 
E. 577; Parks v. City of Boston, Whart. (Pa.) 357, 31 Am. Dec. 
15 Pick. (Mass.) 198; Olson Land 513; Uhler v. Cowen, 192 Pa. 443, 
Co. V. Alki Park Co., 63 Wash. 44 Atl. 42 (semble). See Dyer 
521, Ann. Cas. 1912D, 365, 115 v. Wightman, 66 Pa. 427; City of 
Pac. 1083. Baltimore v. Latrobe, 101 Md. 

79. Biddle v. Hussman, 23 Mo. 621, 61 Atl. 203. 



§ 413] Bent. 1497 

the case of the taking of, not the ownership or "fee," 
bnt merely an easement in the leased premises, the 
question of the continuing liability for rent may be 
most satisfactorily solved upon the theory that 
the dispossession of the tenant by the public agency, 
for the purpose of enjoying the easement, after 
the latter 's acquisition thereof, constitutes an evic- 
tion under paramount title. ^^ Such dispossession 
is not, indeed, under a paramount title if by paramount 
title we mean only a legal title outstanding at the time 
of the lease, but there is no reason for so confining its 
meaning. An eviction by one claiming by force of 
the foreclosure of a mortgage prior to the lease is 
no doubt an eviction under paramount title, regardless 
of "whether the mortgagee had the legal title, and so 
an eviction by one claiming by force of the assertion 
of the paramount power of the state may well be re- 
garded as an eviction under paramount title, or at 
least so analogous thereto as to be governed by the 
same principles. 

Destruction of buildings. The well established 

rule of the common law is that the liability of the 
tenant for the rent called for by the lease is in no way 
affected by the fact that buildings or improvements on 
the land leased are wholly or partially destroyed by some 
unforeseen casualty, however much this may decrease 
the utility of the premises to the tenant. This rule finds 
its most frequent application in the case of a total 
or partial destruction by fire of buildings on the leased 
premises, ^^ but it has also been applied when buildings 

80. See Emmes v. Feeley, 132 81. Baker v. Holtzapffel, 4 

Mass. 346; Devine v. Lord, 175 Taunt. 45; Cowell v. Lumley, 39 

Mass. 384, 78 Am. St. Rep. 502, Cal. 151, 2 Am. Rep. 430; Buck- 

56 N. E. 570; Rhode Island Hos- horn Plaster Co. v. Consolidated 

pital Trust Co. v. Hayden, 20 R. Plaster Co., 47 Colo. 516, 108 Pac. 

I. 544, 42 L. R. A. 107, 40 Atl. 27; Hunniston, Keeling & Co. v. 

421. Wheeler, 175 111. 514, 67 Am. St. 



1498 



Real Pbopekty. 



[§ 413 



or other improvements on the premises were destroyed 
by a flood,^^ a tempest,^^ a hostile army,^^ or a 
mob.^^ Occasionally the common law rule has been 
disapproved, as bearing with undue hardship on the 
tenant.^*' 

In case of the destruction, even though total, of 
the bruildings on the leased land, there is not a total 
destruction of the subject matter of the lease, and there 
remains something out of which, in theory, the rent can 
issue, however small may be the value of the land as 
compared with the buildings destroyed. In the case, 
on the other hand, of the lease of a building alone, 
without the land,^" or of merely certain rooms in or 
parts of a building,^^ if the building, or the part thereof 
which is the subject of the lease, is destroyed, it 'has 



Rep. 232, 51 N. E. 893; Fowler 
V. Mott, 6 Mass. 63; Roberts v. 
Lynn Ice Co., 187 Mass. 402, 73 
N. E. 523; Bowen v. Clemens, 161 
Mich. 493, 137 Am. St. Rep. 521, 
126 N. W. 639: Lincoln Trust Co. 
V. Nathan, 175 Mo. 32, 74 S. W. 
1007; Fowler v. Payne, 49 Miss. 
"2; Felix v. Griffiths, 56 Ohio St. 
39, 45 N. E. 1092; Harrington v. 
Watson, 11 Ore. 143, 50 Am. Rep. 
465, 3 Pac. 173; Nashville, C. & 
St. L. R. Co. V. Heikens, 112 Tenn. 
378, 65 L. R. A. 298, 79 S. W. 
1038; Arbenz v. Exley, Watkins 
& Co., 52 W. Va. 476, 61 L. R. A. 
957, 44 S. E. 149. 

82. Smith v. Ankrim, 13 Serg. 
& R. (Pa.) 39. 

83. Peterson v. Edmonson, 5 
Har. (Del.) 378. 

84. Paradine v. Jane, Aleyn, 
26; Robinson v. L'Engle, 13 Fla. 
482; Pollard v. Shaffer, 1 Ball. 
(Pa.) 210. 

85. Wagner v. White, 4 Har. & 
J. (Md.) 564. 



86. See Whitaker v. Hawley, 

25 Kan. 674, 37 Am. Rep. 277; 
Wattles v'. South Omaha Ice & 
Coal Co., 50 Neb. 251, 36 L. R. A. 
424, 61 Am. St. Rep 554, 69 N. 
W. 785; Coogan v. Parker, 2 S. 
C. 255, 16 Am. Rep. 659. The 
question of the equity of the rule 
is discussed in 1 Tiffany, Land- 
lord & Ten., § 182 m (1). 

87. Ainsworth v. Ritt, 38 Cal. 
89, 99 Am. Dec. 352; Schmidt v. 
Pettit, 8 Dist. Col. (1 Mc Arth) 
179. 

88. McMillan v Solomon, 42 
Ala. 356, 94 Am. Dec. 654; Wo- 
mack V. McQuarry, 28 Ind. 103, 
92 Am. Dec. 306; Stockwell v. 
Hunter, 11 Mete. (Mass.) 448, 45 
Am. Dec. 222; Graves v. Berdan, 

26 N. Y. 498; Moving Picture 
Co. v. Scottish etc. Ins. Co , 244 
Pa. 358, 90 Atl. 642; Paxson 
& Comfort Co. v Potter, 30 Pa. 
Super Ct. 615; Porter v. Tull. 6 
Wash. 408, 22 L. R. A. 613, 36 
Am. St. Rep. 172, 33 Pac. 965. 



§ 413] Eent. 1490 

been nsiially held in this country that nothing- remains 
from which the rent can issue, and that consequently the 
liability therefor immediately ceases. In England the 
same rule applies when the lease is of an apartment 
in a building as when it is of the land itself,^^ and the 
explanation would seem to be that there the lease of 
an apartment is construed as including an interest in 
the soil, from which the rent may be regarded as issuing 
even after the destruction of the apartment. 

The operation of the rule that the liability for rent 
continues in spite of the partial or total destruction 
of the buildings on the leased premises may be, and 
frequently is, excluded by an express provision to the 
contrary in the instrument of lease. Provisions of 
this character have quite frequently been the subject 
of judicial construction.^'^ 

In a number of jurisdictions statutes have been 
adopted which have the effect of partly or wholly re- 
lieving the tenant from rent in case of the destruction 
of the buildings, or any part thereof, during the term. 
For instance the Xew York statute'*^ provides that 
"where any building which is leased or occupied is 
destroyed or so injured by the elements, or any other 
cause, as to be untenantable and unfit for occupancy, 
and no express agreement to the contrary has been 
made in writing, the lessee or occupant may, if the 
destruction or injury occurred without his fault or 
neglect, quit and surrender possession of the leasehold 
premises; and he is not liable to pay to the lessor 
or owner rent for the time subsequent to the sur- 
render." These statutes have frequently been before 
the courts for construction.^^ 

89. Izon V. Gorton, 5 Bing N. changing the language of the 
Cas. 501; MarshaU v. Schofield, original act of 1860. 

52 L. J. Q. B 58. See Selby v. 92. See cases cited 1 Tiffany, 

Greaves, U R. 3 C. P. 954. Landlord & Tenant, § 182 m (8), 

90. See 1 Tiffany. Landlord & and Harvey v. Weisbaum, 159 Cal. 
Tenant, § 182 ni (6). 265, 33 L. R. A. (N. S.) 540, Ann.. 

91. Real Property Law, § 197, Cas. 1912B, 1115, 113 Pac. 656; 



1500 



Real Property. 



[§ 413 



Eviction by landlord. An eviction of the ten- 
ant by the landlord, tlie nature of wliicli is elsewhere 
discussed,^^ has the effect of suspending the tenant's 
liability for rent thereafter to become due,^^ even 
though the eviction is as to merely a part of the 
premises, the tenant retaining possession of the bal- 
ance.*^^ Though the courts frequently refer to an 
eviction by the landlord as absolutely terminating the 
liability for rent, this is not quite correct. It merely 
suspends the liability for such time as the tenant re- 
mains out of possession of the whole or a part of the 
premises as a result of the eviction.^*' The tenant is 
free from liability for the rent becoming due between 



Spear v. Baker, 117 Md. 570, 84 
Atl. 62; Fink v. Weinholzer, 109 
Minn. 381, 123 N. W. 931; Lin- 
'deke v. McArthur's Inc., 125 Minn. 
1, Ann. Cas 1915C, 600, 145 N. 
W 399; Carley v. Liberty Hat 
Mfg. Co., 81 N. J. L. 502, 33 L. 
R. A. (N. S.) 545. 79 Atl. 447; 
Sayre v. Roseville Motor Co., 85 
N. J. L. 10, 91 Atl. 596; Colonial 
Land Co v. Asmus, 82 N. J. L. 
521, 81 Atl. 827; Acme Ground 
Rent Co. v. Werner, 151 Wis. 417, 
139 N. W. 314. 

93. A life, § 58(b). 
• 94. Upton V. Townend, 17 C. B. 
30; Engstrom v. Tyler, 46 Kan. 
317, 26 Pac. 735; Royce v. Gug- 
genheim, 106 Mass. 201, 8 Am. 
Rep. 322; Osmers v. Furey, 32 
Mont. 581, 81 Pac. 345; Bennett v. 
Bittle, 4 Rawle (Pa.) 339; Poston 
V. Jones, 37 N. C. (3 Ired. Eq.) 
350, 38 Am. Dec. 683; Wolf v. 
Eppenstein, 71 Ore. 1, 140 Pac. 
751. 

95. Co. Litt. 148b; Gilbert, 
Rents, 173; Skaggs v. Emerson, 
50 Cal. 3; Frepons v. Grostein, 12 



Idaho, 671, 87 Pac. 1004; Smith 
V. Wise, 58 111. 141; Smith v. 
McEnany,. 170 Mass. 26, 64 Am. 
St. R3p. 272, 48 N. E. 781; Kus- 
chinsky v. Flanigan, 170 Mich. 
245, 41 L. R. A. (N. S.) 430, Ann. 
Cas. 1914A, 1228, 136 N. W. 362; 
Christopher v. Austin, 11 N. Y. 
216; Galleher v. O'Grady, — N. 
H. — , 100 Atl. 549; Morris v. 
Kettle, 57 N. J. L. 218, 30 Atl. 
879; Linton v. Hart, 25 Pa. 193, 
64 Am. Dec. 691; Edmison v. 
Lowry, 3 S. D. 77, 17 L. R. A. 
275, 44 Am. St. Rep. 774, 52 N. W. 
583; Briggs v. Hall, 4 Leigh (Va.) 
484, 26 Am. Dec. 326.. New York 
Dry Goods Store v. Pabst Brewing 
Co., 50 C. C. A. 295, 112 Fed. 
381; Contra in Alabama, Warren 
V. Wagner, 75 Ala. 188, 51 Am. 
Rep. 446; Anderson v. Winton, 136 
Ala. 422, 34 So. 962. 

96. Co. Litt. 319a; Maekubin v. 
Whetcraft, 4 Har. & McH. (Md.) 
135; Smith v. McEnany, 170 Mass. 
26, 64 Am. St. Rep. 272, 48 N. E. 
781; Day v. Watson, 8 Mich. 535; 
Tiley v. Moyers, 43 Pa. 404. 



§ 41:^:] Eent. 1501 

the time of the eviction of the tenant and his restoration 
to possession, even though the landlord does not him- 
self retain the possession.^" 

As to the effect of an eviction during a rent period, 
when the rent is payable in advance for that period, the 
cases are not agreed, some being to the effect that 
the tenant is,^^ and others to the effect that he is 
not,^^ relieved in such case. It is somewhat difficult to 
comprehend how, after the tenant has, by the terms 
of the lease, become absolutely liable for an instalment 
of rent, he can be relieved from such liability by a 
subsequent occurrence. The fact of such advance pay- 
ment could, however, it seems, be considered in as- 
sessing damages on account of the eviction, whether the 
claim for damages is asserted by way of set otf or 
in a separate action.^ A mere trespass or entry by 
the landlord, not amounting to an eviction,- does not 
affect the liability for rent.'^ 

Eviction under paramount title. The liability 



for the rent comes to an end upon the eviction of the 
tenant from the entire premises by one having para- 
mount title.* Even though this eviction is merely con- 

97. Cibel v. Hill, 1 Leon. 110; 2. Ante, § 58(b). 

Bennett v. Bittle, 4 Rawle (Pa.) 3. Roper v. Lloyd, T. Jones 

339. 148; Hunt v. Cape, 1 Cowp. 242; 

98. The Richmond v. Cake, 1 Lawrence v. French, 25 Wend. 
App. Dist. Col. 447: Hall v. Joseph (N. Y.) 443; Bennett v. Bittle, 4 
Middleby, 197 Mass. 485, 83 N. E. Rawle (Pa ) 339. 

1114; Alger v. Kennedy, 49 Vt. 4. Cuthbertson v. Irving, 4 
109, 24 Am. Rep. 117 (semhle). Hurlst. & X. 742; Wheelock v. 
See Hyman v. Jockey Club etc. Warschauer, 34 Cal. 265; Stub- 
Co., 9 Colo. App. 299, 48 Pac. 671. bings v. Evanstown, 136 111. 37, 11 

99. Ryerse v. Lyons, 22 Up. L R. A. 839, 26 N. E. 577; George 
Can. Q. B. 12; Giles v. Comstock, v. Putney, 58 Mass. (4 Cash.) 351, 
4 N. Y. 270, 53 Am. Dec. 374; 50 Am. Dec. 788; Home Life Ins. 
Hunter v. Reiley, 43 N. J. L. 480; Co. v. Sherman, 46 N. Y. 370; 
Gugel V. Isaacs, 21 N. Y. App. Friend v. Oil Well Supply Co., 165 
Div. 503, 48 N. Y. Supp. 594. Pa. 652, 30 Atl. 1134; Maxwell v. 

1. Schienle v. Eckels, 227 Pa. Urban, 22 Tex. Civ. App. 565, 55 

305, 76 Atl. 15. S. W 1124. 
2 R. P.~2U 



1502 Eeal Property. [^ 413 

structive,^ and tlie tenant assumes, by attornment or 
otherwise, the relation of tenant to the paramount 
owner and as such becomes liable for rent, this liability 
is under a different demise, and the rent is a different 
rent, even though similar in amount. 

An eviction under paramount title, like an eviction 
by the landlord, does not affect the tenant's liability 
for rent w^hich became due before the eviction oc- 
curred, since this rent was fully earned.*^""^ This would 
seem properly to be the case even though the rent is 
payable in advance, and the eviction occurs before the 
end of the period for which it is payable.^ 

If the eviction under paramount title is partial 
merely, that is, from a part only of the leased premises, 
the rent is apportioned and the tenant is relieved from 
liability only for an amount proportioned to the value of 
that part,^ the rule being different in this regard when 
the partial eviction is under paramount title from 
that which controls when it is by the landlord. 

Untenantable condition of premises. Since, as 



before stated, the landlord is under no obligation to 
the tenant as regards the condition of the premises, 
and their fitness for the latter 's use and occupation, 
either at the time of the lease or subsequently thereto,^" 
it would seem that the tenant should not be relieved 

5. Ante, § 58(a). v. Coats, 77 Miss. 846, 50 L. R. 

6-7. 2 Rolle, Abr., Rent (0.); A. Ill, 78 Am. St. Rep. 546, 28 

Grobham v. Thornborough, Hob. So. 728; Christopher v. Austin. 

82; Pepper v. Rowley, 73 111. 262; 11 n. Y. 216; Fifth Avenue Build- 

Fitchburg Cotton Manufactory ing Co. v. Kernochan, 221 N. Y. 

Corp. V. Melven, 15 Mass. 268; 370, 117 N. E. 579; Poston v, 

Giles V. Comstock, 4 N. Y. 270, 53 Jones, 37 S. C. (2 Ired. Eq.) 350, 

Am. Dec. 374. 38 Am. Dec. 683; Tunis v. 

8. Giles V. Comstock, 4 N. Y. Grandy, 22 Gratt. (Va.) 109: 
270, 53 Am. Dec. 374. But see Mayor of Swansea v. Thomas, 10 
ante, this section, note 98. Q. B. Div. 48. But see Wilson 

9. Halligan v. Wade, 21 111. v. Sale, 41 Pa. Super. 566. 
470, 74 Am. Dec. 108; Fillebrown 10. Ante, § 51. 

V. Hoar, 124 Mass. 580; Cheairs 



§ 413:] Rent. 1503 

from liabilit}' for rent in the absence of an express 
stipulation or a statutory provision in that regard, 
bj' reason of defects in the premises. And that this 
is so is attested by the numerous decisions at common 
law to the effect that even the destruction of the 
buildings on the leased premises will not have that 
etfect.^^ In New York, however, the tenant has been 
regarded as relieved from liability by reason of the 
"untenantable" condition of the premises, the statute 
before referred to, providing that the tenant shall be 
relieved from rent if the building is destroyed or so 
injured by the elements as to be untenantable and unfit for 
occupancy, being apparently extended to cases in which 
the building becomes untenantable without being destroy- 
ed or injured.^2 In Michigan the tenant has been relieved 
from liability for rent on account of an untenantable 
condition existing at the time of his entry under the 
lease, apparently without reference to any statutes. ^^ 
Occasionally, particularly in New York, the existence 
of an untenantable condition, which the landlord might 
have removed by making repairs on the premises, but 
which he fails to remove, has been referred to as 
relieving the tenant from liability for rent, on the 
theory that it constitutes an eviction by him,^"* and 
there is a distinct tendency on the part of the courts, 
because eviction, by the conmion law precedents, re- 
lieves the tenant from rent, to apply the term to any 
condition which is regarded as sufficient to relieve the 

11. Ante, this section, notes 81- 1 Tiffany, Landlord & Ten., § 
85. 182n(2). 

12. Meserole v. Hoyt, 161 N. 13. Leonard v. Armstrong, 73 
Y. 59, 55 N. E. 274; Vann v. Mich. 577, 41 N. W. 695; Petz v. 
Rouse, 94 N. Y. 401. So in Voight Brewery Co., 116 Mich. 
Minnesota under a substantially "^18, 72 Am. St. Rep. 531, 74 N. 
similar statute. Bass v. Rollins, 63 W. 651. 

Minn. 226, 65 N. W. 348; Dam- 14. Tallman v. Murphy, 120 N. 

kroger v. Pearson, 74 Minn. 77, 76 Y. 345, 24 N. E. 716; Sully v. 

N. W. 960; Kafka V. Davidson, 135 Schmitt, 147 N. Y. 248, 49 Am. St. 

Minn. 389, 160 N. W. 1021. See Rep. 659, 41 N. E. 514. 



1504 Real Peoperty. [<§ 413 

tenant in this respect. ^'^'^ So an eviction has been said 
to occur in the case of the landlord's failure to furnish 
heat to the apartment leased, not only when the lease 
contained a stipulation requiring the lessor to furnish 
heat/*'' but also even in the absence of such stipulation, 
when the landlord's control of the heating apparatus 
and the custom of the community led the tenant to 
anticipate that heat would be furnished.^"*^ The ap- 
plication of the term, however, to the case of such a 
mere omission on the part of the landlord is, it is 
conceived, to be deprecated. Even conceding the de- 
sirability of relieving the tenant from liability for 
rent whenever the premises become untenantable, it is 
undesirable to confuse the law of eviction for the 
sake of a merelj^ nominal compliance with the prece- 
dents of the common law.^^'' 

Breach of covenant. The question whether the 



breach of a particular covenant or stipulation by the 
landlord is a defense to the claim for rent, is properly 
a question merely whether the stipulation for the pay- 
ment of rent and that by the landlord are in the particu- 
lar case to be construed as dependent or independent. 
The question has more frequently arisen in connection 

14a. So, in a recent case it Iowa, 742, 100 N. W. 851; Har- 

was held that a refusal to al- mony Co. v. Ranch. 64 111. App. 

low the tenant to obtain water, 386; McSorley v. Allen, 36 Pa. 

in an emergency, from a neigh- Super. Ct. 271; Buchanan v. 

boring building, constitUjted an Orange, 118 Va. 511, 88 S. E. 52. 
eviction relieving him from rent. 14c. Tallman v. Murphy, 120 

Boston Veterinary Hospital v. N. Y. 345, 24 N. E. 716; Jackson 

Kiley, 219 Mass. 533, 107 N. E. v. Paterno, 58 Misc. 201, 108 N. 

426. Y. Supp. 1073, 128 N. Y. App. 

14b. Bass V. Rollins, 63 Minn. Div. 474, 112 N. Y. Supp. 924; 

226, 65 N. W. 348; Minneapolis Pakas v. Rawle, 152 N. Y. Supp. 

Co-operative Co. v. Williamson, 965; O'Hanlon v. Grubb, 38 App. 

51 Minn. 53, 38 Am. St. Rep. 473, D. C. 1213, 37 L. R. A. (N. S.) 

52 N. W. 986; Riley v. Pettis 1213. Compare Martens v. Sloane. 
County, 96 Mo. 318, 9 S. W. 906; 132 N. Y. App. Div. 114, 116 N. Y. 
Lawrence v. Burrell, 17 Abb. N. Supp. 512. 

Cas. 312; Filkins v. Steele, 124 14d. Ante, § 58(b). 



§ 41^] 



Eent. 



1505 



with a stipulation for the making of repairs or improve- 
ments by the landlord, and in the majority of cases 
the stipulations have been regarded as independent.^^ 
But there are a number of decisions in which, without 
any discussion of the matter on principle, the land- 
lord's failure to comply with a stipulation for the 
making of repairs or improvements during the tenancy 
has been assumed to justify the tenant in abandoning 
the premises and refusing to pay rent.^'^' Likewise it 
Jias occasionally been decided that the landlord's failure 
to comply with his contract to furnish heat or power 
excuses the tenant from paying rent.'" 

Illegality of business. If a lease is knowingly 



made for the purpose of carrying on an illegal busi- 
ness on the premises, such as prostitution, gambling. 



15. Surplice v. Farnsworth, 7 
Man. & G. 576; Central Appa- 
lachian Co. V. Buchanan, 73 Fed. 
1006; Young v. Berman, 96 Ark. 
78, 34 L. R. A. (N. S.) 977, 131 
S. W. 62; Lewis & Co. v. Chis- 
holm, 68 Ga. 40; Arnold v. Krig- 
baum, 169 Cal. 143, Ann. Cas. 
1916D, 370, 146 Pac. 423; Rubens 
V. Hill, 213 111. 523, 72 N. E. 1127; 
Long V. Gieret, 57 Minn. 278, 59 
N. W. 194; Warren v. Hodges, 
137 Minn. 389, 163 N. W. 739; 
Meredith Mechanic Ass'n v. 
American Twist Drill Co., 67 N. 
H. 450, 39 Ati. 330; Stewart v. 
Childs Co., 86 N. J. L. 648, L. R. 
A. 1915C, 649, 92 Atl. 392; Watters 
V. Smaw, 32 N. C. (10 Ind. Law) 
292; Partridge v. Dykins, 28 
Okla. 54, 34 L. R. A. (N. S.) 984, 
113 Pac. 928; Prescott v. Otter- 
statter, 85 Pa. 534; Smith v. 
Wiley, 60 Tenn. (1 Baxt.) 418; 
Arbenz v. Exley, Watkins & Co., 
52 W. Va. 470, 61 L. R. A. 9r>7, 



44 S. E. 149. 

In Wise v. Sparks, — Ala. — , 
73 So. 394, whether a contract 
to pay rent and one to make re- 
pairs were dependent was re- 
garded as a question for the 
jury. 

16. Bissell V. Lloyd, 100 111. 
214; Marks v. Chapman, 135 
Iowa, 320, 112 N. W. 817; Hart- 
hill V. Cooke's Ex'r, 19 Ky. L. 
Rep. 1524, 43 S. W. 705; Pierce 
V. Joldersma, 91 Mich. 463, 51 N. 
W. 1116; Nelson v. Eichoff, — 
Okla. — , 158 Pac. 370 (semble) ; 
Auer V. Vahl, 129 Wis. 635, 109 
N. W. 529. See Taylor v. Finne- 
gan ,189 Mass. 568, 2 L. R. A. 
(N. S.) 973, 76 N. E. 203; Tif- 
fany, Landlord & Ten. § 182r. 

17. Bass V. Rollins, 63 Minn. 
226, 65 N. W. 348; Filkins v. 
Steele, 124 Iowa, 742, 100 N. W. 
851; Rogers v. Babcock, 139 
Mich. 94, 102 N. W. 636; Har- 
mony Co. V. Raucli, 04 111. App. 



1506 



Keal Property. 



[§ 4i; 



or the sale of liquor in violation of law, there can be 
no recovery of rent.^'*^ 

Not infrequently, in recent years, a question has 
arisen as to the effect, upon the liability for rent, 
of the fact that the lease was made to enable the 
lessee to use the property for the sale of intoxicating 
liquors, and such use became invalid, after the making 
of the lease, by reason of the adoption of a pro- 
hibitory law. The cases are ordinarily to the effect 
that legislation of the character referred to did not 
terminate the tenancy or relieve from liability for 
the full amount of the stipulated rent,^'^'* the decision 
in a number of these cases being based on the theory 
that there w^as in the instrument of lease no reference 
to the liquor business which called for construction 
as excluding the sale on the premises of articles other 
than liquors, and that consequently the lessee could 
still utilize the premises. ^'*^ In a few cases a contrary 



386; McSorley v. Allen, 36 Pa. 
Super. Ct. 271. See ante, this 
section, note 14a. 

17a. Mitchell v. Campbell, 111 
Miss. 806, 72 So. 231; Sherman 
V. Wilder, 106 Mass. 537; Berni 
V. Boyer, 90 Minn. 469, 97 N. W. 
121. And cases cited, 1 Tiffany, 
Landlord & Ten. § 40; editorial 
note 26 Harv. Law Rev. 181. 

17b. Lawrence v. White, 131 G-a. 
840, 19 L. R. A. (N. S.) 966, 6:j 
S. E. 631; Goodrum Tobacco Co. 
V. Potts-Thompsou Liquor Co., 133 
Ga. 776, 26 L. R. A. (N. S.) 498, 
66 S. E. 1081; Barghman v. Port- 
man, 12 Ky. L. Rep. 342, 14 8. W. 
342; Kerley v. Mayer, 10 Misc 
Rep. 718, 31 N. Y. Supp. 818, 
judgment aff'd., 155 N. Y. 636, 49 
N. E. 1099; Houston Ice & Brew- 
ing Co. V. Keenan, 99 Tex. 79, 88 
S. W. 197; Hecht v. Acme Coal 
Co., 19 Wyo. 18, 113 Pae. 788, 117 



Pac. 132, 34 L. R. A. (N. S.) 773, 
A. & E. Ann. Cas. 1913E, 258. 
See the excellent note on the sub- 
ject, by Professor R. W. Aigler, 
in 16 Mich. Law Rev. 534. 

17c. O 'Byrne v. Henley, 161 
Ala. 620, 23 L. R. A. (N. S.) 496, 
50 So. 83; Harper v. Young, 123 
Ark. 162, 184 S. W. 447; Shreve- 
port Ice & Brew. Co. v. Mandel, 
128 La. 314, 54 -So. 831 ; San Anto- 
nio Co. V. Brents, 39 Tex. Civ. 
App. 443, 88 S. W. 368; Warm 
Springs Co. v. Salt Lake City, — 
Utah, — , 165 Pac. 788; Hayton v. 
Seattle Brewing & Malting Co., 66 
Wash. 248, 37 L. R. A. (N. S.) 
432, 119 Pac. 739. 

So the premises being still 
available for other purposes, the 
fact that an ordinance rendered 
them practically unavailable for 
the purpose of a garage, for which 
the lease was taken, was regarded 



§ 414] Rent. 1507 

view, that the change in the law relieved the lessee 
from liability for rent, was asserted, ^"*^ this view being? 
sometimes based, however, on the fact that by the 
terms of the lease the tenant was precluded from mak- 
ing any use of the premises except for the sale of 
intoxicants. ^'^^ In so far as these latter cases assume 
that a statement in the lease that the premises are 
to be used for a particular purjiose precludes their use 
for another purpose, they in effect regard such a 
statement, presumably, as a covenant or condition 
against such user, since otherwise the statement as 
to user would seem to be inoperative. 

The inability to obtain or renew a license for the 
sale of intoxicating liquors has been regarded as no 
defense to the claim for rent, although the lease was 
taken for the purpose of conducting that particular 
business on the premises. ^''^ 

§ 414. Actions for rent. When the person to whom 
rent was payable had a freehold interest in the rent, 

as no defense to the claim for " fibn theatre" supplies, a change 

rent. Barnett v. Clark, 225 Mass. in the law prohibiting such busi- 

185, 114 N. E. 317. ness relieved from liability for 

17(1. Heart v. East Tennessee rent. 
Brewing Co., 121 Tenn. 69, 19 L. 17c. Greil Bros. v. Mabson, 179 

R. A. (N. S.) 964, 130 Am. St. Ala. 444, 43 L. R. A. (N. S.) 664, 

Rep. 7.5.3, 113 S. W. 364; The 60, So. 876; Kahn v. Wilhelm. US 

Stratford, Inc. v. Seattle Brewing Ark. 239, 177 S. W'. 403; Briins- 

& Malting Co., 94 Wash. 125, L. wick-Balke-Collender Co. v. Seattle. 

R. A. 1917C, 431, 162 Pac. 31; Brewing & Malting Co., 98 Wash. 

In Koen v. Fairmont Brewing Co., 12, 167 Pac. 58. 
69 W. Va. 94, 70 .9. E. 1098, it 17f. Standard Brewing Co. v. 

was decided, that even if the adop- Weil, 129 Md. 487, 99 Atl. 661; 

tion of prohibition was otherwise Gaston v. Gordon, 208 Mass. 265, 

g^c^lnd for relief from rent, it was 94 N. E. 307; Teller v. Boyle, 132 

not ground therefor if the tenant Pa. 56, 18 Atl. 1069; Miller v. Mc- 

continued in possession. Guire, 18 R. I. 770, 30 Atl. 966; 

In McCullongh Realty Co. v. Burgett v. Loeb, 43 Ind App. 657, 

Laemmle Film Service, — Iowa, 88 N. E. 346. 

— , 165 N. W. 33, it was held that A like view was adopted when 

when there was a lease for the pur- the city was made "dry" by an 

poKfi of carrying on a business in election held after the making of 



150S 



Eeal Propebty. 



[^ 414 



the nonpayment thereof on demand was considered, 
at common law, a disseisin of the rent, and conse- 
quently the real action of novel disseisin was the proper 
form of proceeding by which to recover itJ^ By 
statute, however, an exception to this rule was made in 
favor of the executors and administrators of tenants 
in fee of rents, who were authorized to sue in debt 
for arrears of rent due to their decedents. ^^ 

Since the abolition of real actions, it has, in Eng- 
land, been decided that an action of debt,^^ or its 
equivalent, will lie in favor of the owmer of a rent 
charge in fee, on the theory that such an action did 
not lie at common law owing merely to the fact that 
the higher remedy by real action existed during the 
continuance of the freehold.-^ 



the lease, the local option law un- 
der which the election was held be- 
ing in fca-ce at the time of its 
making. Houston Ice & Brewing 
Co. V. Keenan; 99 Tex. 79, 88 S. 
W. 197. 

18. Litt. §§ 233-240. 

19. 32 Hen. VIII. c. 37 (A. D. 
1540); Co. Litt. 162a; Harrison, 
Chief Eents, 180. 

A tenant of land in fee simple 
Avho has leased for years has 
been held not to be a tenant in 
fee of the rent reserved on the 
lease for years, so that the stat- 
ute will authorize an action of 
debt for the rent by his execu- 
tors. Prescott V. Boucher, 3 
Barn. & Adol. 849. 

20. Though the distinct forms 
of action known as " debt, ' ' 
"covenant," and "assumpsit" no 
longer exist in many states, they 
represent, as connected with the 
recovery of rent, distinctions of a 
substantive character in regard to 



the right and basis of recovery, 
and consequently, even in ' ' code ' ' 
states, a knowledge of the particu- 
lar circumstances appropriate to 
the bringing of one rather than the 
other of these actions is most de- 
sirable. 

21. Thomas v. Sylvester, L. K. 
8 Q. B. 368, 2 Gray's Cas. 704; 
Christie v. Barker, 53 Law J. Q. 
B. 537; Searle v. Cooke, 43 Ch. 
Div. 519. See In re Herbage 
Kents [1896] 2 Ch. 811. The cor- 
rectness of these decisions has, 
however, been questioned, on the 
ground that the duty of paying 
rent was, at common law, imposed 
on the land alone, — a ' ' real obliga- 
tion," — and hence the mere aboli- 
tion of real actions could not make 
it a personal obligation. See the 
learned review of the subject by T. 
Cyprian Williams, Esq., 13 Law 
Quart. Rev. 288, and the references 
therem to Ognel's Case, 4 Coke, 
48b. 



§ 414] Rent. 1509 

In the case of a rent for life, whether rent reserved 
on a lease for life. or a rent charge granted for life, the 
tenant of the land was regarded as personally liable 
for the rent, and, while this personal liability could 
not be enforced during the existence of the life interest 
in the rent, because temporarily superseded by the 
existence of the ''real" obligation on the part of the 
land, upon the termination of such real obligation hy 
the termination of the life interest, the tenant's per- 
sonal obligation became enforceable by the owner of 
the rent, or his personal representatives.^^ 

The right of one leasing for years to sue for 
arrears of rent reserved in an action of debt was 
recognized at an early date in the history of that 
action,-^ and that the action is available for this pur- 
pose has never been questioned.-^ The action w^ll 
also lie for rent reserved upon a tenancy at wilL"^ 

Since the common-law action of debt is not founded 
upon a contract, but is rather a remedy for the re- 
covery of a specific sum in the possession of the 
defendant belonging to the plaintitf,-*^ the tenant, in 
order to be liable therein, need not have contracted 
to pay the rent, but he is made liable as having taken 

22. Ognel's Case, 4 Coke, 49a. 23. 2 Pollock & Maitland, Hist. 

Gilbert, Eents, 98; Co. Litt. 162a, Eng. Law, 209. 

Hargrave's note; 13 Law Quart. 24. Litt. §§ 58, 72; Co. Litt. 

Re^- 291. 47b; Gilbert, Eents, 93; Trapnall 

By statute (8 Anne, c. 14, y. Merrick, 21 Ark. 503; Rowland 
§ 4, A. D. 1709), the right y. Coffin, 26 Mass. (9 Pick.) 52; 
was given to bring an action of j^^ 29 Mass. (12 Pick.) 125; Out- 
debt for the recovery of rent serv- ^^^^ ^ jy^y^^^ ^o ^d. 536, 20 Atl 
ice reserved upon a lease for life, j.^. ^^^^^^^ ^, Whitney, 3 

even during the lease, but it an- -r, . .^„ ,r ,, 

,. , . u xu 1 Demo, 452; McEwen v. Joy, 7 

plied in no ease where the rela- "^ 

.• ^* i„ 11 1 1 i. 4. T 1 Rich. Law (S. Car.) 33; Elder v. 

tion of landlord and tenant did v ^ > 

not exist. Webb v. Jiggs, 4 H^'^''^' ^^ ^enn. (2 Sneed) 81. 

Maule & S. 113. There are similar ^5. Litt. § 72. 

statutes in several states. See 1 26. Ames, Lectures o-n Legal 

Tiffany, Landlord & Ten. p. 1819, History, 88. 

note 7. 



1510 Real Property. [§ 414 

the profits due by the land, and, consequently, mere 
privity of estate, as distinct from privity of contract, 
is sufficient to sustain the action. Accordingly, a 
transferee of the land, or of the particular estate 
therein which owes the rent, is liable in debt to the 
person entitled to the rent;-'^ and a transferee of the 
reversion may recover therein against the lessee or an 
assignee of the lessee,^^ as may a transferee of the 
rent without the reversion.-'' 

Debt will, moreover, lie against the original lessee, 
although the latter has assigned his lease, since the 
lessee cannot substitute another in his place without 
the landlord's assent. If, however, the landlord accept 
the lessee's assignee as tenant, he cannot thereafter 
bring debt against the original lessee.^'' If the lessee's 
interest in a part of the premises is assigned to another 
person, or in different parts to different persons, each 
of such assignees is liable in debt, by reason of privity 
of estate, for a proportional part of the rent.^^ The 
assignee of the reversion cannot bring debt against the 
original lessee after the latter 's assignment of the 
term, since there is, in such case, neither privity of 
contract nor of estate."^ 

27. Walker's Case, 3 Coke, 22a; rest v. Willard, 8 Cow. (N. Y.) 
Thursby v. Plant, 1 Saund. 237, 206; Kendall v. Garland, 5 Cush. 
note (1) ; Howland v. Coffin, 9 (Mass.) 74. 

Pick. (Mass.) 52, 12 Pick. 125, 30. Walker's Case, 3 Coke, 22a; 

McKeon v. Whitney, 3 Denio (N. Marsh v. Brace, Cro. Jac. 334; 

Y.) 452. Mills V. Auriol, 1 H. Bl. 433, 440; 

28. Walker's Case, 3 Coke, 22a; Wadham v. Marlowe, 8 East, 314, 
Thnrsby v. Plant, 1 Saimd. 237, 1 note. 

Lev. 259; Howland v. Coffin, 12 31. Gamon v. Vernon, 2 Lev. 

Pick. (Maps.) 125; Patten v. 231; Curtis v. Spitty, 1 Bing. N. 

Deshon, 1 Gray (Mass.) 325; Out- C 760; Harris v. Frank, 52 Miss, 

toun V. Dulin, 72 Md. 536, 20 Atl. 155; St. Louis Public Schools v. 

134. . Boatmen's Ins. & Trust Co., 5 Mo. 

29. Williams v. Hayward, 1 El. App. 91. Compare Daraainville v. 
& El. 1040; Allen v. Bryan, 5 Mann, 32 N. Y. 197. 

Barn. & C. 512; Eyerson v. Quack- 32. Humble v. Glover, Cro. Eliz. 

enbush, 26 N. J. Law, 236; Dema- 328; Walker's Case, 3 Coke. 22a. 



§ 414] Kent. 1511. 

An action of debt, if brought by or against one 
not a party to the original lease, as in the case of 
an action by the assignee of the lessor or against the 
assignee of the lessee, being based on privity of estate, 
has always been regarded as a ''local" action, which 
must be brought in the county where the land lies;^' 
while, if brought against the original lessee by the 
lessor, being based on contract, it is "transitory," and 
may be brought where the lessee may be found, or 
where the contract was made.^* 

Action of covenaiit. On the lessee's covenant 

to pay the rent, usually contained in the instrument of 
lease, an action of covenant may be brought at common 
law,^^ and, in jurisdictions where such form of action 
is abolished, an equivalent action to enforce the tenant's 
liability on his covenant will lie. 

To support the common law action of covenant 
there must be a technical covenant by the lessee, that 
is, the instrument must be sealed by him^^ since the 
proper action on a written agreement to pay rent, 
not under seal, is assumpsit. 

An action by the lessor against the lessee on the 
covenant to pay rent has been regarded as transitory, 
as being based purely on contract,^" and the weight 

33. Bord v. Cudmore, Cio. Car. Wall. (U. S.) 479, 20 L. Ed. 721; 
183; Pine v, Leicester, Hob. 37; Greenleaf v. Allen, 127 Mass. 248; 
Stevenson v. Lambard, 2 East, 575; Union Pac. Ey. Co. v. Chicago, R. 
Whitaker v. Forbes, L. E. 10 C. L & P. Ey. Co., 164 111. 88. Eus- 
P. 583; Bracket v. Alvord, 5 Cow. sell v. Fabyan, 28 N. H. 543, 61 
(N. Y.) 18. Am. Dee. 629; Taylor v. I>e Bus, 

34. Wey v. Tally, 6 Mod. 194; 31 Ohio St. 468. 

Thursby v. Plant, 1 Wms. Saund. 36. Johnson v. Muzzy, 45 Vt. 

(Ed. 1871) 306-308; Bracket v. Al- 419, 12 Am. Rep. 214; Him dale 

vord, 5 Cow. (N. Y.) 18; Hen- v. Humphrey, 15 Conn. 433; 

wood V. Cheeseman, 3 Serg. & E. Trustees of Hocking County v. 

(Pa.) 502; Chitty, Pleading (7th Spencer, 7 Ohio (2nd pt.) 143. 

K<1.) 282. 37. Bulwcr's Case, 7 Coke, 3a; 

35. Thursby v. Plant, 1 Saund. Wey v. Yally, 6 Mod. 194; 1 
237, 1 Lev. 259, 2 Gray's Cas. Chitty, Pleading (7th Ed.) 283. 
671; Cross v. United Sitates, 14 



1512 Real Pkopeety. [§ 414 

of authority is to the same effect as regards an action 
by the transferee of the reversion against the original 
lessee, on the theory that the privity of contract is 
transferred by the Statute 32 Hen. VIII. c. 34.2« On 
the other hand, an action, whether by the original lessor 
or his transferee, against the assignee of the lessee, 
has been regarded as local, as being based on privity 
of estate.^^ 

Assumpsit. An action of special assumpsit 



may be maintained upon the lessee's express promise 
to pay a certain sum as rent, provided such promise is 
not under seal.^° 

Under the code procedure. In a large number 



of jurisdictions, the common law forms of action having 
been abolished, the statements made above as to the 
appropriate forms of action for the recover}- of rent, 
and their distinguishing characteristics in this regard, 
have no longer any practical application, though an 
understanding thereof is desirable for a full compre- 
hension of the common law view of rent. Likewise, in 
most states, the common law distinctions, above re- 
ferred to, betw-een local and transitory actions, have 
been superseded by statutes directing where suit shall 
be brought, as, for instance, by provisions that suit 

38. Thiirsby v. Plant, 1 Saund. 40. .See eases cited in article hy 
237 1 Lev. 259, and notes in 1 Prof. J. B. Ames, on Assumpsit 
Wms. Saund. (Ed. 1871) 278, 307; for Use and Occupation, in 2 

1 Cliitty, Pleading (7tli Ed.) 283. Harv. Law Rev. at pp. 378, 379. 

39. Barker v. Darner, Garth. 182 ; Lectures on Legal History, pp. 
Stevenson v. Lambard, 2 East, 575, 168, 169. And see, also, Hins- 

2 Gray's Case. 679; Thursby v. dale v. Humphrey, 35 Conn. 443; 
Plant, 1 Saund. 237; Bowdre v. Rubens v. Hill, 213 111. 523, 72 
Hampton, 6 Rich. Law (S. C.) 208. N. E. 1127; Trustees of Hocking 
See Salisbury v. Shirley, 66 Cal. County v. Spencer, 7 Ohio (2nd 
22.3, 5 Pac. 104. Bonetti v. Treat, part) 149; Burnham v. Best, 49 
91 Cal. 223, 14 L. R. A. 151, 27 Ky. (10 B. Men.) 227; Swem v. 
Pa«. 612; Hiutze v. Thomas, 7 Sharretts, 48 Md. 408; Johnson v. 
Md. 346, to the effect that the Muzzy, 45 Vt. 419. 12 Am. Rep. 
action is based on privity of es- 214. 

tate. 



§ 414] Kent. 1513 

shall be brought in the county of the defendant's resi- 
dence, or where he may be served with process, and so 
if the rent is payable in a certain county, the venue 
may be determined by a provision that an action on a 
contract shall be brought at the place of performance. 

Remedy in equity. Equity will occasionally 



take jurisdiction of a proceeding by the landlord for the 
recovery of rent on the ground that the 
remedy at law is inadequate. One case in which equity 
thus takes jurisdiction is where the tenant has made a 
sublease, and the tenant is insolvent, in which case 
the court will direct the subtenant to pay the rent to 
the chief landlord, on the theory that the rent should 
be discharged out of the profits of the land.^^ This 
theory, that the profits of the land are properly ap- 
plicable to the pa^anent of rent, and that equity alone 
can enforce such application, w^ould seem to be the 
grounds on which the jurisdiction of equity should be 
sought and sustained. It cannot, however, be said that 
this reason for the assumption of jurisdiction by equity 
clearly apjoears from the cases, such jurisdiction having' 
ordinarily been sustained on the ground that the remedy 
by distress was for some reason not available in the par- 
ticular case.'*- That the amount of rent due and pay- 
able by defendant is uncertain, either because he is 
tenant of liut a part of the land subject to the lease*^ 
or for otlier reasons,^^ has also been regarded as 
ground for the interposition of equity. 

41. Goddaid v. Keate, 1 Vein. 598; Leeds v. Powell^ 1 Ves. Sr. 
87; Haley v. Boston Belting Co., 171. See article by Prof. C. C. 
140 Mass. 73, 2 N. E. 785; For- Langdell, 10 Harv. Law Rev. 93. 
rest V. Durnell, 86 Tex. 647, 26 43. Swedesborough Church v. 
S. W. 481; Otis v. Couway, 114 N. Shivers, 16 N. J. Eq. (1 C. E. 
Y. 13, 20 N. E. 628; Kemp v. Sail Green) 453. 

Antonio Catering Co., 118 Mo'. App. 44. Livingston v. Livingston, 4 

134, 93 S. W. 342. .Johns Ch. (N. Y.) 287, 8 Am. Dec. 

42. Collet v. Jacciiios, 1 Cli. Cuf. .^62; Van Rensselaer v. Layman, 39 
120; Cocks V. Foley, 1 Vern. 359; Ilarv. Pr. (N, Y.) 9. See 2 Tif- 
North V. Strafford, 3 P. Wras. iany. Landlord & Ten. § 292. 
148; Benson v. Baldwin, 1 Atk. 



1514 Real Peoperty. [^ 414 
Action for use and occupation. At common 



law, as above stated, assumpsit would lie upon a con- 
tract not under seal for the payment of rent.^-^ And 
it would also lie upon a contract to pay a reasonable 
compensation for the use and occupation of land, pro- 
vided no certain rent was reserved.^^ The statute 
11 Geo. 2, c. 19, § 14, authorised a landlord, provided 
the demise is not by deed, that is, is not under seal, 
to recover a reasonable satisfaction in an action on 
the case for the use and occupation of the land, 
even though a certain rent is reser^-ed and there is 
no proof of an express promise. A statute of a 
similar character has been enacted in a number of 
states,^" while in several, upon w^hat appears to be 
a somewhat questionable reading of the earlier English 
decisions, it has been decided that a landlord may 
recover in such an action apart from a statute bearing 
on the subject.^ ^ 

In this action, the technical name of which is 
indebitatus assumpsit for use and occupation, rent 
as such is not recovered, but merely a reasonable satis- 
faction for the use of the premises; and the recovery 
is based on the theory that a contract to pay such 
reasonable satisfaction is to be inferred from the 
circumstances in conformity with the intention of the 
parties. If one person permits another to take and 
retain possession of his land, it is, in the ordinary 
case, a reasonable inference that the former expects 
the latter to pay the reasonable value of such pos- 

45. Ante, this ?ection, note 40. Marsh) 255, 23 Am. Dec. 404; 

46. Ames, Assumpsit for Use Dwight v. Cutler, 3 Mich. 566, 64 
and Occupation, 2 Harv. Law Eev. Am. Dec. 105; Heidelbach v. Slad- 
379, Lectures on Legal History, er, 1 Handy (Ohio) 457; Eppes 
169. V. Cole, 4 Hen. & M. (Va.) 161, 

47. .See 2 Tiffany, Landlord & 4 Am. Dee. 512. That it does not 
Ten. p. 1856. lie apart from statute, see Bell v. 

48. Gunn v. Seovil, 4 Day Ellis' Heirs, 1 Stew. & P. (Ala.) 
(Conn.) 228, 4 Am. Dec. 208; 294; Byrd v. Chase, 10 Ark. 602; 
Crouch V. Briles, 30 Ky. (7 J. J. Long v. Bonner, 33 N. C. 27. 



§ 414] 



Rent. 



1515 



session or occupation, and that the latter expects to 
pay, and the law recognizes the reasonableness of such 
inference and enforces a contract so inferred. It is 
in this sense only that, as is frequently stated, "the 
law implies an obligation" to pay the value of the 
use and occupation, the obligation not being im))lied 
by law witliout reference to the presumed intentions 
of the parties, as in the case of quasi contract. 

To sustain an action for use and occupation the 
relation of landlord and tenant nmst, ordinarily at 
least, exist between the parties.^^ And consequently 
it will not lie in favor of the owner of land against a 
person who has entered thereon as a trespasser.^'' 
Occasionally a state statute has been construed as 
authorizing such an action against a trespasser,^^ and 
in several states, where the line between the different 
forms of action has been obscured by statutory enact- 
ments, a trespasser may, it seems, be made liable for 
the rental value of land under allegations of use and 
occupation by him.^- Such an action cannot however 



49. Carpenter v. Uuited States, 
84 U. S. (17 Wall) 489, 21 L. Ed. 
680; Hamby v. Wall, 48 Ark. 135, 
3, Am. St. Rep. 218, 2 S. W. 705; 
Emergon v. Weeks, 58 Cal. 4.39; 
Cambridge Lodge v. Routh, 163 
Ind. 1, 71 N. E. 148; Jones v. 
Donelly, 221 Mass. 21.3, 108 N. E. 
106.3; Hogsott v. Ellis, 17 Midi. 
351; McFar'an v. Watson, 3 N. 
Y. 286; Aull Say. Bank v. AuU's 
Adm'r, 80 Mo. 199; Rosenberg v. 
Sprecher, 74 Neb. 176, 103 N. W. 
1045; Clark v. Clark's Estate, 58 
Vt. 527, 3 Atl. 508. 

50. Pico V. Pheliin, 77 Cal. 86, 
19 Pac. 186; Latlirop v. Standard 
Oil Co.., 83 Ga. 307, 9 S. E. 1041; 
Carrigg v. Meehanics' Bank of 
Providence, 136 Iowa, 261, 111 N. 
W. 329; Stockett v. Watkins' 
Adm'rs, 2 Gill. & J. (Md.) 326, 



20 Am. Dec. 438; Emery v. Emery, 
87 Me. 281, 32 Atl. 900; Inman 
V. Morris, 63 Miss. 347; Brolasky 
V. Feiguson, 48 Pa. 434; Galves- 
ton Wharf Co. v. Gulf C. & .S. F. 
R. Co., 72 Tex. 454, 10 S. W. 537. 

51. Dell V. Gardner, 25 Ark. 
134; Missouri Pac. R. Co. v. Atchi- 
son, 43 Kan. 529, 23 Pac. 610; 
Newberg v. Cowan, 62 Miss. 570; 
Earl V. Tyler, 36 Okla. 179, 128 
Pac. 269. 

52. Sec Lindt v. Lindcr, 117 
Iowa, 110, 90 N. W. 596; Hidden 
V. Jordan, 57 Cal. 184; Lamb v. 
Lamb, 146 N. Y. 317, 41 N. E. 
26; Long Bell Lumber Co. v. 
Martin, 11 Okla. 192, 66 Pac. 328; 
Olson v. Huntamer, 6 S. Dak. 364, 
55 Am. St. Rep. 844, 61 N. W. 
479. 



1516 Real Property. [^ 415 

be regarded as the equivalent of assumpsit for use 
and occupation, but is more properly an action of 
trespass, for mesne profits, according to the common 
law nomenclature. 

Forfeiture of leasehold. The landlord is, by 

tlie express terms of the lease, frequently given the right 
to re enter on the land, and thereby terminate the 
tenant's interest, in case of nonpayment of rent, 
such a stipulation rendering the tenant's estate one 
on condition.^^ In a number of states, apart from any 
such provision in the lease, the landlord is authorized 
to resume possession upon the tenant's failure to pay 
rent, such a provision being most frequently intro- 
duced as a part of a statute authorizing summary 
proceedings, and the non payment of rent being named 
as one of the grounds for such a proceeding, while 
in a few states the non payment of rent is made a 
ground of forfeiture, without any reference to the 
mode of proceeding by which the forfeiture may be 
enforced.^^ 

§ 415. Distress for rent. As before stated, the 
remedy by distress existed at common law in the 
case of a rent service, unless the rent and the seignory or 
reversion became separated, and also in the case of 
a rent charge. -^^ In England the right of distress has 
been given by statute in the case of all rents, and 
consequently rents seek no longer exist there as a 
distinct class. ^"^ The question whether this statute 
is in force in any particular state has been seldom 
passed upon,^''' this being a natural result of the in- 
frequency of rents other than rents service reserved 
on leases for years. 

53. Ante, §§ 74-89. 57. In Illinois the English sta- 

54. 2 Tiffany, Landlord & Ten. tute was, in a quite early deci- 
§§ 193a, 274d, e. sion, recognized as in force (Penny 

55. Ante, § 404. v. Little, 4 111. 301), while a dif- 

56. 4 Geo. 2, c. 28, § 5 (A. D. ferent view was taken in New 
1731). 



§ 415] Eent. 1517 

The remedy by distress lias not been favored in this 
country, it being often regarded as affording opportunity 
for injustice and oppression, and as unfairly dis- 
criminating in favor of a particular class of creditors. 
In some states it has been abolished by statute,^^ and 
in some the courts have refused to recognize it as an 
existing part of the law.^'' The remedy, under its 
common-law name, still exists in a number of states; 
but even in those states it is quite frequently modified by 
statutory provisions, the general tendency of which 
is more or less to withdraw the control of the pro- 
ceedings from the ■ landlord and to vest it in public 
officials, thus assimilating it to the process of attach- 
ment.^^ ^ In New England the remedy of attachment 
on mesne process has superseded that of distress. 

Originally, the remedy by distress merely enabled 
the landlord to seize the chattels on the land, and hold 
them as a pledge for the payment of rent ;^° but by stat- 
ute the landlord was authorized to sell the goods levied 
upon, and to apply the proceeds on the rent,*^^ the 
proceeding being thus changed from one to secure the 
rent to one to collect it. Furthermore, the seizure of 
the goods was formerly made by the landlord himself; 
but at the present day, in most jurisdictions, the actual 
levy is made by an officer of the law.'''^ 

It has been quite frequently stated that to sup- 
port a distress the rent reserved must be certain or 

York (Cornell v. Lamb, 2 Cow. 59a. See 2 Tiffany, Landlord & 

^52). Ten. §§ 325-346. The gist of the 

58. 2 Tiffany, Landlord & Ton. statutory provisions in the various 
§ 325. states are conveniently presented 

59. Folmar v. Copeland, 57 Ala. in a note in 2 Cornell Law Quart. 
588; Herr v. Johnson, 11 Colo. Kev. at p. 357, by D. R. Perry, 
393, 18 Pac. 342; Crocker v. Mann. Esq. 

3 Mo. 472, 26 Am. Dec. 684; Bohni 60. Co. Litt. 47; :; P.hu-kst. 

V. Dunphy, 1 Mont. 333; Deaver Comm. 614. 

V. Rice, 20 N. Car. (4 Dev. & B. 61 2 Wm. & Mary c, 5 (A. D. 

Law) 567, 34 Am. Dec. 69; Smith 1690). 

V. Wheeler, 4 Okla. J38, 44 Pac. 62. 2 Tiffany, Landlnrd & Ten. 

203. § 336. 
2 R. P.— 21 



1518 Real Property. ["§> 415 

capable of reduction to a certaiiity,^^ and occasionally 
reasons have been stated for this requirement, con- 
nected with the method of proceeding at common law.®^ 
But, it is conceived, the true and sufficient ground for 
the requirement of a certain rent as a basis for 
distress is that, as before stated,*^^ there is no such 
thing as a rent which is not certain or capable of re- 
duction to a certainty. The statement of this require- 
ment has occasionally been made as a justification for a 
holding that there was no right of distress although 
there was a right of recovery for use and occupation."® 
The reasonable value of the use and occupation, though 
recoverable by action, is not rent, and it is for this 
reason, rather than because the amount is uncertain, 
that it cannot be recovered by distress. 

Who may distrain. Since the right of distress 

is based upon the relation of tenure, a distress for rent 
reserved on a lease can be made only by one having the 
reversion, that is, the landlord.*^' Consequently, at 
common law, a lessor who has disposed of the re- 
version, retaining the rent, cannot distrain,*^^ though 
he may do so, it seems, in some states, by force of a 
statutory provision giving the right of distress to 
persons entitled to rent, as he might in any state in 
which the English statute,^ ^^ giving the right in the 
ease of a rent seek, may be regarded as in force. 

63. Eegnart v. Porter, 7 Bing. Fla. 611; Tiflft v. Verden, 19 Miss. 
451; United States v. Williams, 2 (11 Smedes & M.) 153; Valentine 
Cranch. C. C. 438, Fed. Cas. No. v. Jackson, 9 Wend. (N. Y.) 302; 
16,710; Smoot v. Strauss, 21 Fla. Wells v. Hornish, 3 Pen. & W. 
611; Marr v. Eay, 151 111. 799, (Pa.) 31. 

26 L. K. A. 799, 37 N. E. 1029; 67. Sims v. Price, 123 Ga. 97, 

Briscoe v. McElween, 43 Miss. 556; 50 S. E. 961; Marr v. Eay, 151 

Smith V. Fyler, 2 Hill. (N. Y.) 111. 340, 26 L. R. A. 799, 37 N. E. 

G48; Jocks v. Smith, 1 Bay, (S. 1029; Patty v. Bogle, 59 Miss. 

Car.) 315. 491; Grier v. McAlarney, 148 Pa. 

64. .See 2 Tiffany, Landlord & 587, 24 Atl. 119; McKenzie v. 
Ten. § 327d. Eoper, 2 Strob (S. Car) 306. 

65. Ante, § 411, note 99. 68. Litt. § 226. 

66. Stayton v. Morris, 4 Har. 68a. Ante, this section, note 56. 
(Dol.) 224; Smoot v. Strauss,' 21 



§ 415] Eent. 1519 

At common law the executor or administrator of 
a deceased owner of a rent had no right to distrain 
for rent which belonged to him as having accrued in the 
lifetime of such owner, but by St. 32 Hen. VIII. c. 37, § 
1, the right of distress was given to the executors and 
administrators of tenants in fee, fee tail, or for 
term of life.*'^ This statute has, however, been held to 
give no right of distraint to the executor of a tenant 
of land in fee who demised the land for years, re- 
serving a rent,'^ and, on this construction of the statute, 
an executor or administrator has, in jurisdictions where 
there is no statute to the contrary, no right to collect 
by distress rent due by a tenant of his decedent under 
a lease for years. There are in a few states statutes 
expressly giving the right of distress to the executors 
or administrators of a deceased landlord, or giving 
them the same remedies for the collection of rent as 
the decedent had. 

Chattels subject to distress. All chattels on 



the demised premises are, generally speaking, liable to 
be distrained upon, and the fact that they belong to a 
person other than a party to the lease is immaterial.'^ ^ 
In some states, however, by statute, a stranger's prop- 
erty is exempt from distress.^^ Things which are part 
of the freehold, as fixtures, cannot be destrained upon."-' 
Things which are liable to be injured by keeping,"^ 
and also, it seems, things not readily capable of 

69. Co. Litt. lG2a. hanc, 4 ni. App. (4 Bradw.) 460; 

70. Prescott v. Boucher, .3 Barn. Reynolds v. Shuler, 5 Cow. (N. Y.) 
& Adol. 849; Jones v. .Tones, ?, 323. In Furbush v. Chappell, 105 
Barn. & Adol. 967. Pa. St. 187, it is deciued that fix 

71. Gilbert, Distresses, 3;{; tures removable by a tenant are 
Bradley, Distresses, 73; 3 Blackst. distrainable, a view which ac- 
Comm. 8. eords with the rule existing in that 

72. 2 Tiffany, Landlord & Ten. state that removable fixtures arc 
§ 32Sa(9). personalty. See ante, § 272(d). 

73. Co. Litt. 47b; Gilbert, Dis- 74. 2 Blackst. Conim. 101; Mor- 
tresses, 42; Turner v. Cameron, L. ley v. T'inchcomlio, 2 F.ych. lOl. 

R. 5, Q. B. .30; Kassing v. Keo- 



1520 Eeal Property. [^ 415 

identification, such as loose pieces of money/ ^ are not 
subject to distress. Things in a person's actual use or 
possession, such as a horse which he is riding, or a 
machine at wliich he is working, are also exempt, in 
order that a breach of the peace may not be caused by 
an attempt to distrain thereon.'^ Implements or uten- 
sils of one's trade or profession, such as the axe of a 
carpenter or the books of a scholar, are exempt, if 
there be other things on the premises sufficient in 
amount to satisfy the distress; and beasts used for 
working a farm, and sheep thereon, are in the same 
way conditionally exempt."^^ 

Goods which are in the custody of the law,' ^ as 
when they have been levied upon under execution,'^^ 
or attachment,^'^ are not distrainable. The rigor of 
this rule is, however, considerably alleviated, in Eng- 
land and in some states, by reason of statutes securing 
to the landlord, as against an execution levy, arrears 
of rent to the amount of one year's rent.^^ 

The most important class of exemptions from dis- 
tress consists of those in favor of trade or commerce, 
being generally of those things belonging to a third 
person which are temporarily on the leased premises 

75. 1 Rolle's Abr. 667; Bac. 79. Herron v. Gill, 112 111. 247; 
Abr., Distress (B). Craddock v. Riddlesbarger, 32 Ky. 

76. Co. Litt. 47a; Simpson v. (2 Dana) 205; Van Horn -v. 
Hartopp, Willes, 512; Beall v. Goken, 41 N. J. L. 499; SuUivau 
Beck, 3 Cranch C. C. 666, Fed. v. Ellison, 20 S. C. 481. 

Gas. No. 1,161; Couch v. Craw- 80. Thomson v. Baltimore & 

ford, 10 Up. Can. C. P. 491. Susquehenna Steam Co., 33 Md. 

77. Co. Litt. 47b; 3 Blackst. 312; Pierce v. Scott, 4 Watts & 
Comm. 9; Jenner v. Yolland, 6 S. (Pa.) 344; Ayres v. Depras, 
Price 3. - Speers Law (S. Car.) 367; Meyer 

78. Co. Litt. 47b; Eaton v. v. Oliver, 61 Tex. 584. 

Southby, Willes, 131; Bowser v. 81. The English statute is that 

Scott, 8 Blackf. (Ind.) 86; Mul- of 8 Anne c. 14, § 1. The various 

herin v. Porter, 1 Ga. App. 153, decisions upon this and the more or 

58 S. E. 60; Karns v. McKinney, less similar state statutes are dis- 

78 Pa. 387; Cooley v. Perry, 34 cussed in 1 Tiffany, Landlord & 

S. C. 554, 13 S. E. 853; Meyer Ten. § 183. 
V. Oliver, fil Tex. 584. 



<^ 415J 



Kent. 



1521 



for the purposes of the business there conducted, as 
in the case of raw material left there to be worked up,^^ 
or goods placed there for purposes of sale*-* or for 
safe keeping. ^^ For a similar reason, it seems, the 
property of a guest at an inn are exempt.^^ 

Things not on the premises. Apart from stat- 



ute,^^ only goods upon the demised premises can be 
distrained for the rent therof, or, as it is frequently 
expressed, the distress must be made upon the prem- 
ises. ^^ In at least three states the law in this regard 
has been changed by statutes allowing the goods of the 
tenant to be distrained upon wherever located.^^ 
There are also, in a number of states, ^^ as in Eng- 



82. Co. Litt. 47a; Bead v. Bnr- 
ley, Cro. Eliz. 596; Knowles v. 
Pierce, 5 Houst. (Del.) 178; Hos- 
kins V. Paul, 9 N. J. L. 110, 17 
Am. Dec. 455. 

83. MeCreery v. Claflin, 37 Md 
435, 11 Am. Rep. 542; Connali v 
Hale, 23 WemL (N. Y.) 46 
Brown v. Stackhouse, 155 Pa. 582 
35 Am. St. Eep. 908, 26 Atl. 669 
Walker v. Johnson, 4 McCord (S 
Car.) 552. 

84. Miles v. Furber, L. E. 8, 
Q. B. 77; Beall v. Beck, 3 Cranch. 
C. C. 666, Fed. Cas. No. 1,161; 
Owen V. Boyle, 22 Me. 47; Brown 
V. Sims, 17 Serg. & R. (Pa.) 138. 

85. 3 Blackst. Comm. 8; Brad- 
ley, Distresses, 144; Gorton v. Falk- 
ner, 4 Term Rep. 567; Lyons v. 
Elliott, 1 Q. B. Div. 210; Beall v. 
Beck, 3 Cranch C. C. 666, Fed. 
Cas. No. 1,161 ; Karns v. McKiu- 
ney, 74 Pa. 389; Kellogg News- 
paper Co. V. Peterson, 162 111. 158, 
53 Am. St. Rep. 300, 44 N. K. 
411; Elford v. Clark, 3 Brev. (S. 
Car.) 88. 

Ill owe jurisdiction tilings lie- 
longing to a permnnent boardor at 



an inn or boarding house have 
been regarded as exempt. Riddle 
V. Welden, 5 Whart. (Pa.) 9. 
Contra, Trieber v. Knabe, 12 Md. 
491, 71 Am. Dec. 607. 

86. Except in the case of cattle 
driven off the premises in the 
sight of the landlord or his agent 
when about to distrain. Co. Litt. 
161a; 2 Co. Inst. 132; Bradby, 
Distresses, 94. Or when there is 
an express stipulation allowing dis- 
tress on things belonging to the 
lessee ofP the premises. In re 
Roundwood Colliery Co. [1897] 1 
Ch. 373; Dinger v. McAndrews, 10 
Pa. Dist. R. 221. 

87. Co. Litt. 161a; White v. 
Hoeninghaus, 74 Md. 127, 21 Atl. 
700; Crocker v. Mann, 3 Mo. 472, 
26 Am. Dec. 684; Weiss v. John, 
37 N. J. L. 93; Pemberton v. Van 
Rensselaer, 1 Wend. (N. Y.) 307; 
Clifford V. Beems, 3 Watts. "(Pa.) 
246; Mosby v. Leeds, 3 Call (Va.) 
439. 

88. 2 Tiffany, Landlord & Ten- 
ant, § 3281(4). 

89. Id, § 3281(3). 



1522 Real Property. [§ 416 

land,^" statutes authorizing a distress on the tenant's 
goods and chattels if removed by him from the premises 
in order to prevent a distress thereon. And in several 
states the same end of realizing from chattels re- 
moved from the premises, or liable to be removed, is 
secured by statutory provisions for attachment for 
rent.91 

§ 416. Lien for rent. In quite a number of states 
there are statutes subjecting chattels or crops upon the 
demised premises to a lien in favor of the landlord 
for rent. Such a statutory lien on crops is not ordinarily 
restricted to the crops of the tenant, but the crops of a 
subtenant are subject thereto, while a lien given by 
statute on things other than crops is usually restricted 
to things belonging to the tenant himself. The statute 
ordinarily names the method of enforcing the lien, as, 
for instance, by attachment, or by statutory distress. 
But even when the statute named another method of 
enforcing the lien, a right to foreclose it by a proceeding 
in equity has not infrequently been upheld.^^ 

Occasionally a lien is created upon crops or other 
personal property upon the leased premises by ex- 
press stipulation in the instrument of lease. A lien so 
created resembles, more or less, a chattel mortgage, 
and the courts are inclined to determine the rights of 
the lessor thereunder from this point of view. It 
is usually enforced by the decree of a court of equity 
for the sale of the property subject to the lien.^^ 

90. St. 11 Geo. 2, c. 19, § 1. 92. See 2 Tiffany, Landlord & 

91. 2 Tiffany, Landlord & Ten- Tenant, § 321. 
aut, §§ 347-351. 93. Id., § 322. 



CHAPTER XVTI. 

PUBLIC RIGHTS. 

§ 417. Highways. 

418. Parks, squares, and commons. 

419. Customary rights. 

420. Rights of fishing. 

421. Rights of navigation. 

§ 417. Highways. We have before referred to 
rights as to the use of the land of an individual for a 
public or quasi public purpose, such as a right of way 
for a railroad, for a drain, or for irrigation purposes.^ 
These, however, though they involve a public use 
of the land, do not usually give a right of user to each 
member of the public, while the rights which we will 
now consider may ordinarily be exercised by any indi- 
vidual member of the })ublic, or of that part of the 
public resident in a particular locality. 

The most usual instance of a right, in each member 
of the public, thus to make use of another's land, exists 
in the case of a ''highway" over private land; this 
being, in effect, a right of way in gross, in favor of each 
member of the public. 

Though the existence of a highway does not, at 
common law, affect the ownership of the soil, which 
remains in the original owner, subject to use by tiie 
public for highway i)urposes, under some state statutes 
bearing upon the creation of highways, not only the 
right of user but the ownership, or "fee," as it is gener- 
ally termed, of the land, is in the public, or in the state 
or municipality in trust for the public, in which case 
the rights of user in the public are not rights as to the 

1. See ante, § 365. 

(1523) 



.1524 Real Peopekty. [§ 417 

user of another's land, but rather rio'hts incident to 
ownership.^ 

Creation. A hi.a:hway mav be created either 



(1) by "dedication" of the land by the owner to use 
as a highway; (2) by prescription, — that is, user of 
the land by the public for highway purposes for the 
prescriptive period; or (3) by statutory proceedings, 
involving, if necessary, the taking of the land upon the 
payment of compensation under the power of eminent 
domain. 

Statutory proceedings are usually, in the case of 
suburban highways, instituted by owners of land in- 
terested in procuring the establishment of the highway; 
and in cities, by the municipal authorities. All per- 
sons interested in the land over or through which the 
highway is to run are made parties to the proceeding; 
and it is the ordinary practice, in one proceeding, to 
determine the damages to be paid to the owaiers of the 
land utilized for the highway, and to apportion among 
the owners of the land to be benefitted thereby the cost 
of the undertaking. The preliminary question whether 
the proposed highway is necessary for the public wel- 
fare may be determined by the legislature, or delegated 
to the local authorities, or left to be adjudicated by the 
tribunal which determines the question of damages. 

The question whether, by proceedings of this char- 
acter, the ownership or *'fee" of the land is vested in 
the public, or merely a right of user, is to be determined 
by the terms of the statute ; and unless this plainly con- 
templates that the *'fee" shall be appropriated, it is 
generally held that the public acquires a right of user 
only.2 

2. The use of the word "fee" tive of the Guration of a right, 

in this connection to designate rather than of its character, and 

the ownership, as distinct from its use erroneously implies that 

the mere right of user, of the a mere right of user is necessarily 

land, though sanctioned by almost less in duration than a fee. 
universal practice, is unfortunate, 3. 1 Lewis, Eminent Domain, 

since the word is properly descrip- § 449; Elliott, Roads & Streets, 



§ -tl7] 



Public Rights. 



1525 



The dedication of land to the i)ub]ic for nse as a 
highway, and the creation of highways by prescription, 
will be considered in another part of this work.^ 

Rights of owner of land. When the pul)lic 



have a right of passage merely, the owner of the land 
or "fee" therein may use it in any way not interfering 
with its use by the public for passage.^ He is, in the 
ordinary case, alone entitled to cut and appropriate the 
trees,^ or herbage,''^ within the highway limits, and to 
remove the soil or minerals under the highway.^ The 
municipal authorities may, however, remove trees, 
earth or stone for the purpose of opening or improving 
the highway, and by some decisions they may utilize 
materials so obtained for the purpose of repairing other 
parts of the highway.^ 

The owner of the land may bring ejectment against 
one unlawfully inclosing or encroaching within the 



§ 254; 2 Dillon, Municipal Corpo- 
rations, § 589. 

4. See jwst, §§ 479, 514. 

5. Elliott, Roads & Streets, §§ 
259, 876; 15 Am. & Eng. Enc. Law 
(2nd Ed.) 416; Cloverdale Homes 
V. Town of Cloverdale. 182 Ala. 
419, 47 L. R. A. (N. S.) 607, 62 
So. 712: Perley v. Chandler, 6 
Mass. 454. 4 Am. Dec. 159; Glen- 
coe V. Reed, 93 Minn. 518, 67 L. 
R. A. 901, 101 N. W. 956; Daily 
V. State, 51 Ohio St. 348, 46 Am. 
St. Rep. 578; Lynch v. Town of 
Northview, 73 W. Va. 609, 52 L. 
R. A. (N. S.) 1038, 81 S. E. 83;i. 

6. City of Atlanta v. Holliday. 
96 Ga. 546, 23 S. E. 509; Crisraon 
V. Deck, 84 Iowa, 344, 51 N. W. 55; 
Bigelow V. Whitcomb, 72 N. H. 
473, 65 L. R. A. 676, 57 Atl. 680; 
Weller v. McCormick, 52 N. J. L. 
470, 8 L. R. A. 798, 19 Atl. 1101; 
Dailey v. State, 51 Ohio St. 348. 



24 L. R. A. 724, 46 Am. St. Rep. 
578, 37 N. E. 710; Sanderson v. 
Haverstick, 8 Pa. St. 294; Tucker 
V. Eldred, 6 R. I. 404. 

7. Stackpole v. Healy, 16 Mass. 
33, 8 Am. Dec. 121; Cole v. Drew, 
44 Vt. 49, 8 Am. Rep. 363; People 
V. Foss, 80 Mich. 559, 45 N. W. 
480, 20 Am. St. Rep. 532; Wood- 
ruff V. Neal, 28 Conn. 165; 1 Lewis, 
Eminent Domain, S 853. 

8. Town of Suffield v. Hatha- 
way, 44 Conn. 521, 26 Am. Rep. 
4S3; Aurora v. Fox, 78 Ind. 1; 
Deaton v. Polk County, 9 Iowa, 
594; West Covington v. Freking, 
8 Bush (Ky.) 121; Glencoe v. 
Reed, 93 Minn. 518, 67 L. R. A. 
901, 10 N. W. 956; Higgins v. 
Reynolds, 31 N. Y. 151. 

9. See Dillon, Mun. Corp.. § 
1149; 15 Am. & Eng. Encyc. Law 
(2nd Ed.) 417, 418. 



1526 



Real. Pkopeety, 



[§ 417 



limits of the Mghway,^'^ or trespass against one ^ho 
uses the land for a purpose not within the scope of its 
use as a highway/*^-^ or who injures trees or herbage 
thereon.^ ^ 

A city street is a highway, but a distinction is fre- 
quently asserted between such a highway and an ordi- 
nary rural highway, it being said that, while in the 
latter case the public have merely a right of passage, 
in the case of a city street there exists, besides this 
right of passage in individual members of the public, 
power in the municipal authorities to change the surface, 
to cut down trees, place sewers and pipes beneath the 
bed of the street, and in effect to exclude the owner 
of the land from any use thereof other than that of 
passage common to all individuals.^- The cases, how- 
ever, which assert such a distinction do not usually de- 
cide that a use can be made of a city street which 



10. Goodtitle v. Alker, 1 Bur- 
row, 133; Perry v. New Orleans, 
M. & C. R. Co., 55 Ala. 413, 28 
Am. Rep. 740; Postal Telegraph 
Cable Co. v. Eaton, 170 111. 513, 
39 L. R. A. 722, 62 Am. St. Rep. 
390, 49 N. E. 365; Louisvnie, St. 
L. & T. Ry. Co. V. Liebfried. 92 
Ky. 407, 17 S. W. 870; Proprietors 
of Locks & Canals on Merrimack 
River v. Nashua & L. R. Co., 104 
Mass. 1; Thomas v. Hunt, 134 Mo. 
392, 32 L. R. A. 857, 35 S. W. 
581; Jackson v. Hathaway, 15 
Johns. (N. Y.) 447, 8 Am. Dec. 
263; Becker v. Lebanon & M. St. 
Ry. Co., 195 Pa. 502, 46 Atl. 1096; 
Contra, Cincinnati v. White, 6 Pet. 
(U. S.) 431, 8 L. Ed. 452; Becker 
V. Lebanon & M. St. Ry. Co., 195 
Pa. 502, 46 Atl. 1096. See the 
suggestive discussion of the last 
cited case in an editorial note in 
14 Harv. Law Rev. at p. 291. 

10a. Lade v. Shepherd, 2 



Strange 1004; Burr v. Stevens, 90 
Me. 500, 38 AtL 547; Thomas v. 
Ford, 63 Md. 346, 52 Am. Rep. 
513; Lewis v. Jones, 1 Pa. St. 336, 
44 Am. Dec. 138. 

11. Barclay v. Howell's Lessee, 
6 Pet. (U. S.) 498, 8 L. Ed. 477; 
Woodruff v. Neal, 28 Conn. 165; 
Blis V. Hall, 99 Mass. 597; Bolen- 
der V. Southern Michigan Tel. Co., 
182 Mich. 646, 148 N. W. 697; 
Gambel v Pettijohn. 116 Mo. 375, 
22 S. W. 783; Andrews v. You- 
mans, 78 Wis. 56. 47 N. W. 304. 

12. See Western Railway of 
Alabama v. Alabama Grand Trunk 
R. Co., 96 Ala. 272, 17 L. R. A. 
474, 11 So. 483; Montgomery v. 
Santa Ana Westminster Ry. Co. 
104 Cal. 186, 25 L. R. A. 654, 43 
Am. St. Rep. 89, 37 Pac. 786; 
Kincaid v. Indianapolis, etc.. Gas 
Co., 124 Ind. 577, 8 L. R. A. 602. 
19 Am. St. Rep. 113, 24 N. E. 
1066; Chesapeake & Pot. Telephone 



§ 417] Public Rights. 1527 

cannot be made of a suburban highway ;^^ and the 
sounder view seems to be that a suburban highway, 
like a city street, is subject to all highway uses and im- 
provements which may be necessary, among which are 
to be included its use for the supply of water, light, or 
drainage, when these are rendered necessary by the 
density of population, and that the fact that the high- 
way is within the limits of a city is immaterial, except 
as this is usually coincident with the necessity for such 
uso.^^ 

Additional servitude. When the ownership of 



the land is not acquired by the public, but merely a 
right of passage, if the land within the highway limits 
is afterwards used for a purpose, even though of a 
public nature, which is not within the scope of the high- 
way use for which the land was dedicated or appropri- 
ated, it is considered that the land is subjected to an 
additional burden or *' servitude," entitling the owner 
to compensation as for a new taking of x>roperty. So it 
has been held that the use of the highway for a steam 

Co. V. Mackenzie, 74 Md. 36, 28 14. See Floyd County v. Rome 

Am. St. Rep. 219, 21 Atl. 690; Van St. R. Co., 77 Ga. 614, 3 S. E. 3; 

Brunt V. Town of Flatbush, 128 De Kalb Co. Telephone Co. v. Dut- 

N. Y. 50, 27 N. E. 973; McDevitt to^n, 228 111. 178, 10 L. R. A. (N. 

V. Peoples' Nat. Gas Co., 160 Pa. S.) 1057, 81 N. E. 838; Lake 

St. 367, 28 Atl. 948; Duquesne Shore M. S. R. Co. v. Whiting, 

Light Co. V. Duff, 251 Pa. 607, 161 Ind. 76, 67 N. E. 933; Cater 

97 Atl. 82; Elliott, Roads & v. Northwestern Tel. Exch. Co., 60 

Streets, § 482 et seq. Minn. 539, 28 L. R. A. 310, 51 Am. 

13, "The only court in which it St. Rep. 543, 63 N. W. Ill; Eels 

has been unequivocally adjudicated v. American Telephone & Tele- 

that a certain use was legitimate graph Co., 143 N. Y. 133, 25 L. R. 

in the case of city streets, anQ not A. 640, 38 N. E. 202; Palmer v. 

legitimate in the case of country Larchmont Electric Co., 158 N. Y. 

highways, is that of Pennsylvania, 231, 43 L. R. A. 672, 52 N. E. 

in which it has been held that an 1092; Callen v. Columbus Edison 

electric passenger railway is a legi- Elec. Light Co. 66 Ohio St. 16(i, OS 

timate use of a city or village L. R. A. 782, 64 N. E. 141; Hu<l- 

street, but not of a country road." dleston v. Eugene, 34 Ore. 343, 43 

1 Lewis, Eminent Domain, § 118. L. R. A. 444, 55 Pac. 868; 1 Lewis, 

Eminent Domain, § 118, 



1528 



Keal Propeety. 



[§ 417 



railway, carrying freight as well as passengers, is not 
an ordinary highway use, and that the owner of the fee 
is consequently entitled to compensation therefor.^^ 
In New York a like view is taken as to a street rail- 
way,^*^ but the great weight of authority is to the effect 
that a passenger street railway operated on the surface 
of the ground is not an additional servitude.^' In some 



15. Western Kailway of Ala- 
bama V. Alabama Grand Trunk E. 
Co., 96 Ala. 272, 17 L. K. A. 474, 
11 So. 483; Denver & Rio Grande 
R. Co. V. Stinemeyer, 5& Colo. 396, 
148 Pac. 860; Imlay v. Union 
Branch R. Co., 26 Conn. 249; Flor- 
ida Southern Ry. Co. v. Brown, 23 
Fla. 104, 1 So. 512; Harrold Bros. 
V. Americus, 142 Ga. 686, 83 S. E. 
5.34; Indianapolis, B. & W. R. Co. 
V. Hartley, 67 111. 439; Mitchell v. 
Chicago B. & Q. Ry. Co., 265 III. 
300, 106 N. E. 833; Cox v. Louis- 
ville, N. A. & C. R. Co., 48 Ind. 
178; Kucheman v. Chicago C. & D. 
R. Co., 46 Iowa, 366; Phipps v. 
Western M. R. Co., 66 Md. 319, 7 
Atl. 556; Grand Rapids & I. R. 
Co. V. Heisel, 38 Mich. 62; Wil- 
liams V. New York Cent. R. Co., 
16 N. Y. 97; White v. North- 
western North Carolina R. Co., 113 
N. C. 610, 22 L. R, A. 627, 37 Am. 
St. Rep. 638, 18 S. E. 330; Illinois 
Cent. R. Co. v. Hudson, 136 Tenn. 
1, 188 S. W. 589; 589 ("dummy" 
line). Contra, Montgomery v. 
Santa Ana Westminster Ry. Co., 
104 Cal. 186, 25 L. R. A. 654, 43 
Am. St. Rep. 89, 37 Pac. 786; 
Moore Mfg. Co. v. Springfield 
Southwestern Ry. Co.., 256 Mo. 167, 
165 S. W. 305.' 

The erection of poles and trolley 
wires to furnish electricity for the 
running of cars on streets other 



than that on which the erections 
are made was held not to create 
a new servitude. Brandt v. Spok- 
ane & I. E. R. Co., 78 Wash. 214, 
52 L. R. A. (N. S.) 760, 138 
Pac. 871. 

16. Craig v. Rochester City & B. 
R. Co., 39 N. Y, 404; Peck v. 
Schenectady Ry. Co., 170 N. Y. 
298, 63 N. E. 357; Paige v. 
Schenectady, 178 N. Y. 102, 70 N. 
E. 213. See, for a discussion of 
this matter, 1 Lewis, Eminent Do- 
main, §§ 158-164; editorial note, 
8 Columbia Law Rev. 575. 

17. Birmingham Traction Co. v. 
Birmingham Ry. & Electric Co., 110 
Ala. 137, 43 L. R. A. 233, 24 So. 
502; Finch v. Riverside & A. Ry. 
Co., 87 Cal. 597, 25 Pac. 765; El- 
liott V. Fair Haven & W. R. Co., 
32 Conn. 579; Randall v. Jackson- 
ville St. R. Co., 19 Fla. 409; Floyd 
County V. Rome St. R. Co., 77 Ga. 
614, 3 S. E. 3; Chicago, B. & Q. 
R. Co. V. West Chicago Street R. 
Co., 156 111. 255, 29 L. R. A. 485, 
40 N. E. 1008; Indiana Union 
Traction Co. v. Gough, 54 Ind. 
App. 438, 102 N. E. 453; Hodges 
V. Baltimore Union Passenger Ry. 
Co., 58 Md. 603; Attorney Gen- 
eral V. Metropolitan E. Co., 125 
Mass. 515; Newell v. Minneapolis, 
L. & M. Ry. Co., 35 Minn. 112, 
59 Am. Rep. 303, 27 N, W. 839; 
Williams v. Meridian Light & Ry. 



§ 417] 



Public Rights. 



1529 



states a telegraph or telephone line is regarded as an 
additional burden on the fee/^ and in others a contrary 
view is taken. ^^ The use of a street or highway for 
sewers,^*^ gas pipes,^^ or water pipes,-- is a legitimate 



Co., 110 Miss. 174, 69 So. 596; 
Hincbman v. Paterson Horse K. 
Co., 17 N. J. Eq. 75; Texas & P. 
Ry. Co. V. Eosedale St. R. Co.., 64 
Tex. 80. 

A like view has beeu taken even 
when the street railway was used 
in part for transporting freight. 
Percy v. Lewiston, A. & W. St. 
Ry., 113 Me. 106, 93 Atl. 43. 

A subway utilized for travel has 
likewise been regarded as not con- 
stituting an additional servitude. 
Sears v. Crocker, 184 Mas?. 586, 
100 Am. St. Rep. 577, 69 N. E. 
327; Peabody v. Boston, 220 Mass. 
376, 107 N. E. 952. 

18. Pacific Postal Telegraph & 
Cable Co. v. Irvine, 49 Fed. 113; 
De Kalb County Telephone Co. v. 
Dutton, 228 111. 178, 10 L. R. A. 
(N. S.) 1057, 81 N. E. 838; 
Chesapeake & P. Tel. Co., of Balti- 
more V. Mackenzie, 74 Md. 36, 28 
Am. St. Rep. 219, 21 Atl. 690; 
Stowers v. Postal Telegraph-Cable 
Co., 68 Miss. 559, 12 L. R. A. 864, 
24 Am. St. Rep. 290, 9 So. ,'556; 
Eronson v. Albion Telephone Co., 
67 Neb. 1111, 60 L. E. A. 426, 
93 N. W. 201; Eels v. American 
Telephone & Telegraph Co., 143 N. 
Y. 133, 25 L. R. A. 640, 38 N. 
E, 202; Western Union Telegraph 
Co. V. Williams, 86 Va. 696, 8 L. 
R. A. 429, 19 Am. 84:. Rep. 908, 
11 S. E. 106; Krueger v. Wiscon- 
sin Tel. Co. lOG Wis. 96, 50 L. R. 
A. 298, 81 N. W. 1041. 

19. Hobbs v. T^ong Distance 
Tel. & Tel. Co., 147 Ala. 393, 7 L. 



R. A. (N. S.) 87, 41 So. 1003; Ma- 
gee V. Overshlner, 150 Ind. 127, 
40 L. R. A. 370, 65 Am. St. Rep. 
358, 49 N. E. 951; Pierce v. Drew, 
136 Mass. 75, 49 Am. Rep. 7; Peo- 
ple V. Eaton, 100 Mich. 208, 24 L. 
R. A. 721, 59 N. W. 145; Julia 
Building Ass'u. v. Bell Telephone 
Co., 88 Mo. 258, 57 Am. Rep. 398; 
Cater v. Northwestern Telephone 
Exchange Co., 60 Minn. 539, 28 L. 
R. A. 310, 51 Am. St. Rep. 543, 63 
N. W. Ill; Hershfield v. Rocky 
Mountain Bell Telephone Co., 12 
Mont. 102, 29 Pac. 883; Carpenter 
V. Lancaster, 250 Pa. 541, 95 Atl. 
702. 

20. Cone v. City of Hartford, 
28 Conn. 363; City of Boston v. 
Richardson, 13 Allen (Mass.) 146; 
Stondinger v. City of Newark, 28 
N. J. Eq. 187, affirmed, 28 N. J. 
Eq. 446; In re City of Yonkers, 
117 N. Y. 564, 23 N. E. 661; El- 
ster V. Springfield, 49 Ohio St. 82, 
30 N. E. 274; Carpenter v. Lancas- 
ter, 250 Pa. 541, 95 Atl. 702; 1 
Lewis Eminent Domain, § 183. 

21. Dillon, Mun. Corp., 8 1213; 
McDevitt V. Peoples Nat. Gas Co., 
160 Pa. 367, 28 Atl. 948; Cheney v. 
Barker, 198 Mass. 356, 16 L. R. A. 
(N. S.) 436, 84 N. E. 492. 

22. Provost V. New Chester 
Water Co., 162 Pa. St. 275, 29 Atl. 
914; Wood v. National Water 
Works Co., :'.3 Kan. 590, 7 Pac. 
233; City of Quincy v. Bull, 106 
111. 337; Bishop v. North Adams 
Fire District, 1C7 Mass. 364, 45 N. 
E. 925. 



1530 



Real Pkoperty. 



[§ 417 



use, for which the owner 'of the fee cannot recover 
compensation, unless it is not for the benefit of the com- 
munity itself, or the members thereof, but is for the 
benefit of another municipality, or of individuals alone.-"' 
The maintenance of a market on a highway constitutes 
an additional servitude,-* as does the erection of a 
stand pipe to supply water to the community;-^ but a 
well or underground cistern has been regarded as 
maintainable in a street for the purpose of furnishing 
water for street sprinkling purposes, this being a street 
use.2*^ 

Some of the later cases are to the effect that the 
ownership of the "fee" does not involve rights of such 
practical value as to authorize compensation in case 
of an additional use of the surface of the land,^" and 



23. Kincaid v. Indianapolis 
Natural Gas Co., 124 Ind. 577, 8 
L. R. A. 602, 19 Am. St. Rep. 113, 
24 N. E. 1066; Ward v. Triple 
State Nat. Gas Oil Co., 115 Ky. 
723, 74 S. W. 709; Baltimore 
County Water & Elec. Co. v. Du- 
breuil, 105 Md. 424, 66 Atl. 439; 
Bloomfield & R. Natural Gas Light 
Co. V. Calkins, 62 N. Y. 386; Van 
Brunt V. Town of Flatbush, 128 
N. Y. 50, 27 N. E. 973; Sterling's 
Appeal, 111 Pa. St. 35, 56 Am. 
Rep. 246, 2 Atl. 105; Contra, Che- 
ney V. Barker, 198 Mass. 356, 16 
L. R. A. (N. S.) 436, 84 N. E. 492. 

24. Lutterloh v. Town of Ce- 
dar Keys, 15 Fla, 306; Schopp v. 
City of St. Louis. 117 Mo. 131, 20 
L. R. A. 783, 22 S. W. 898; State 
V. Laverack. 34 N. J. L. 201. 

25. Barrows v. City of Syca- 
more, 150 111. 588, 25 L. R. A. 
535, 41 Am. St. Rep. 400, 37 N. E. 
1096. And so as to a water tank 
above the surface, Morrison v. 



Hinkson, 87 111. 587, Davis v. Ap- 
lepton, 109 Wis. 580, 85 N. W. 
515. 

26. West V. Bancroft, 32 Vt. 
367. Contra, Dubuque v. Mahon- 
ey, 9 Iowa 450, criticized Dillon, 
Mun. Corp. § 1156. 

27. Barney v. Keokuk, 94 U. S. 
324, 24 L. Ed. 224; Theobald v. 
Louisville, N. O. & T. Ry. Co., 66 
Miss. 279, 4 L. R. A. 735, 14 Am. 
St Rep. 564, 6 So. 230; Donahue 
V. Keystone Gas Co., 181 N. Y. 
313, 70 L. R. A. 761, 106 Am. St. 
Rep. 549, 73 N. E. 1108; White 
V. Northwestern North Carolina 
R. Co., 113 N. C. 610, 22 L. R. A. 
627, 37 Am. St. Rep. 639, 18 S. E. 
630;Blackwell, E. & S. W. R. Co. 
V. Gist, 18 Okla. 516, 90 Pac. 889; 
McQuaid v. Portland & V. Ry. Co. 
18 Ore. 237, 22 Pac. 899; Gulf, C. 
& S. F. R. Co. V. Eddins. 60 Tex. 
656: Dooley Block v. Salt Lake 
Rapid Transit Co., 9 Utah 31, 33 
Pac. 229. 



§ 417] Public Rights. 1531 

the text l)ooks usually uphold this view,-* which has 
gained strength with the development of the modern 
doctrine, referred to in the next paragraph, that the 
abutting owner is, as such, entitled to compensation for 
interference with his rights of light, air, and access 
caused by the additional use of the highway,— a doctrine 
which renders it unnecessary to base his right to 
compensation on his possible ownership of the fee. 

Rights of abutting owners. The owner of land 



abutting on a highway has sometimes been regarded as 
having no right to compensation by reason of a new 
use of the highway, unless he can, as above indicated, 
recover compensation as owner of the _ ' ' fee ' ' in the 
highway, the result being to exclude any recovery by 
him if the fee is in the public.-^ The view is, however, 
quite usually taken, at the present day, that an abutting 
owner, as such, has rights of access to his premises by 
means of the highway, and also rights to enjoy light and 
air from the open space above the highway, which can- 
not be destroyed or impaired, to his detriment, except 
in the use and improvement of the highway for high- 
way purposes, without making comi)ensation to him."'" 

28. 1 Lewis, Eminent Domain, 556, 41 Am. St. Rep. 311, 37 N. E. 
S 128; Randolph, Eminent Do- 850, 24 L. R. A. 406; Barrows v. 
main, § 415; Dillon, Mun. Corp. City of Sycamore, 150 111. 588. 25 
S§ 1136, 1279. L. R. A. 535, 41 Am. St. Rep. 400, 

29. Florida Southern Ry. Co. 37 N. E. 1096; Decker v. Evans- 
V. Brown, 23 Fla. 104, 1 So. 512: ville. S. & N. Ry. Co., 133 Ind. 
Moses V. Pittsburgh, Ft. W. & C 493, 33 N. E. 349; Chesapeake & 
R. Co., 21 111. 516; Davis v. C. & P. Tel. Co. of Baltimore v. Mack- 
N. W. Ry. Co., 46 Iowa 389; At- enzie, 74 Md. 36, 28 Am. St. Rep. 
chison & N. R. Co. v. Garside, 10 219, 21 Atl. 690; Spencer v. Met- 
Kan. 552;Fobes v. Rome, W. & O. ropolitan St. Ry. Co., 120 Mo. 154. 
R. Co., 121 N. Y. 505, 8 L. R. A. 22 L. R. A. 668, 23 S. W. 126; 
453, 24 N. E. 919; East End St. Barnett v. Johnson, 15 N. J. Eq. 
R. Co. V. Doyle, 88 Tenn. 747. 9 481; White v. Northwestern 
L. R. A. 100, 13 S. W. 936. See North Carolina R. Co., 113 N. C. 
Lewis, Eminent Domain, § 156, 610, 22 L. R. A. 627, 37 Am. St. 
note 31. Rep. 639, 18 S. E. 330; McQuaid 

30. Field v. Barling. 149 111. v. Portland & V. Ry. Co., 18 Ore. 



1532 



Real Peopeety. 



[M17 



These rights are frequently spoken of as "easements" 
in the highway, or in the land used for the highway, 
and they are in some respects analogous to easements. ^^ 
It is on the theory that such rights are impaired 
that an abutting owner has been held to be entitled to 
compensation on account of the construction and main- 
tenance of an elevated railway in the street f"^ and since 
the maintenance of a steam railroad in the highway, for 
the purpose of transporting freight as well as passen- 
gers from town to town, is usually regarded as a use of 
the highway for other than highway purposes, the 
abutting owners are, it seems, entitled to compensation 
for the resulting interference with their rights of light, 
air, and access, irresi^ective of the ownership of the land 
within the highway limits.'''' A passenger street rail- 
way, operated on the surface of the highways, whether 
it be a horse, electric, or cable railway, is regarded as 



237, 22 Pac. 899; Johnston v. Old 
Colony R. Co., 18 R. I. 642, 49 Am. 
St. Rep. 800, 29 Atl. 594; Frater 
V. Hamilton County, 90 Tenn. 
661, 19 S. W. 233; Davis v. 
Spragg, 72 W. Va. 672, 48 L. R. A. 
(N. S.) 173, 79 S. E. 652; 1 Lewis, 
Eminent Domain, §§ 120-123; 
Dillon, Mun. Corp. § 1245. 

31. See, as to the character of 
such rights, 15 Harv. Law Eev. 
at p. 305. And as to the theory 
on which they may be regarded 
as arising, see 1 Lewis, Eminent 
Domain (3rd Ed.), § 121 et seq. 

32. Story v. New York Ele- 
vated R. Co., 90 N. y. 122; Lahr 
V. Metropolitan Elevated Ry. Co., 
104 N. Y. 268, 10 N. E. 528; 
Bischoff v. New York El. E. Co., 
138 N. Y. 257, 33 N. E. 1073. 
See Aldis v. Union Elevated R. 
Co., 203 111. 567, 68 N. E. 95; 
Rourke v. Holmes St. Ey. Co., — 
(Mo. App.) — , 117 S. W. 1102. 



33. Denver & S. F. R. Co. v. 
Hannegan, 43 Colo. 122, 16 L. R. 
A. (N. S.) 874, 127 Am. St. Rep. 
100, 95 Pac. 343; South Carolina 

E. Co. v. Steiner, 44 Ga. 546, 560; 
Illinois Cent. R. Co. v. Elliott, 129 
Ky. 121, 110 S. W. 817; Hoff- 
man V. Flint & P. M. R. Co., 114 
Mich. 316, 72 N. W. 167; Gustaf- 
son V. Hamm, 56 Minn. 334, 22 
L. E. A. 565, 57 N. W. 1054; 
Theobold v. Louisville, N. O. & T. 
Ey. Co., 66 Miss. 279, 4 L. R. A. 
735, 14 Am. St. Rep. 564, 6 So. 
230; Chicago, R. I. & P. Ry. Co. 
V. Sturey, 55 Neb. 137, 75 N. W. 
557; White v. Northwestern North 
Carolina E. Co., 113 N. C. 610, 22 
L. R. A. 627, 37 Am. St. Rep. 639, 
18 S. E. 330; Caveness v. Char- 
lotte, R. & S. R. Co., 172 N. C. 
305, 90 S. E. 244; Gulf C. & S. 

F. R. Co. v. Eddins, 60 Tex. 656. 
See Decker v. Evansville, S. & N. 
Ey. Co., 133 Ind. 493, 33 N. E. 



§ -H7] 



Public Eights. 



153^ 



a use of the high way for highwaj^ purposes, and as 
consequently not ground for the recovery of damages 
by the abutting owner. ^^ 

Ordinarily, it seems, the construction of a tunnel or 
subway involves no interference with any of these ease- 
ments, and the abutting owner has, as such, no right to 
assert a claim for damages on account thereof,^^^ but 
the mode of construction may occasionally be such as 
to involve interference.^^'' 

The authorities are generally to the effect that an 
owner of land abutting on a street is not entitled to 
compensation for impairment of the value of his land 
by a change of the grade of the street, provided there 



:;49; Kansas, N. & D. Ey. Co. v. 
Cuykendall, 42 Kan. 234, 16 Am. 
St. Eep. 21 Pac. 1051; Dillon, 
Mun. Corp., §§ 1250-1257. But see 
Ivloutgomeiy \'. Santa Ana West- 
minster Ey. Co., 104 Cal. 186, 25 
L. E. A. 654, 43 Am. St. Eep. 89, 
37 Pac. 786; Olney, City of v. 
Wharf, 115 111. 519, 56 Am. Rep. 
178, 5 N. E. 366; O'Connor v. St. 
Louis, K. C. & N. E. Co., 56 Iowa, 
735, 10 N. W. 263; Henry Gans 
& -Sons Mfg. Co. V. St. Louis, K. 
& N. W. Ey. Co., 113 Mc. 308, 18 
L. E. A. 339, 35 Am. St. Eep. 
706, 20 S. W. 658; Sherlock v. 
Kansas City B. Ey. Co., 142 Mo. 
172, 64 Am. St. Eep. 551, 43 S. 
W. 629; Reining v. New York, L. 
& W. E. Co., 128 N. Y. 157. 

34. 1 Ijewis, Eminent Domain, 
§§ 158-164; Randolph, Eminent 
Domain, §§ 402, 403; Chicago, B. 
& Q. E. Co. V. West Chicago St. 
E. Co., 156 111. 255, 29 L. E. A. 
4S5, 40 N. E. 1008; Louisville Ey. 
Co. V. Foster, 108 Ky. 743, 50 L. 
E. A. 813, 57 S. W. 480; Briggs 
V. Lewiston & H. E. Co., 79 Mo. 
363, 1 Am. St. Eep. 316, 10 Atl. 
2 R. P.— 22 



47; Attorney General v. Metro- 
politan E. Co., 125 Mass. 515; Aus- 
tin V. Detroit, Y. & A. A. Ey. Co., 
134 Mich. 149, 2 Ann. Cas. 530, 
96 N. W. 35; Placke v. Union 
Depot Ey. Co., 140 Mo. 634, 41 S. 
W. 915; Kirkpatrick v. Piedmont 
Tiaction Co., 170 N. C. 477, 87 S. 
E. 232; Eaffeity v. Central Trac- 
tion Co., 147 Pa. 579, 30 Am. St. 
Rep. 763,23 Atl. 884; San Antonio 
Rapid Transit St. Ry. Co. v. Lim- 
Inirger, 88 Tejf. 79, 53 Am. St. 
Rep. 730, 30 S. W. 533. Contra. 
Slaughter v. Meridian Light «S: E. 
Co., 95 Miss. 251, 25 L. E. A. (N. 
S.) 1265, 48 So'. 6; Jaynes v. Oma- 
ha St. Ey. Co., 53 Neb. 631, 39 
L. R. A. 751, 74 N. W. 67, by 
reason of trolley poles). 

34a. Lincoln Safe Deposit Co., 
210 N. Y. 34, 103 N. E. 768. See 
Sears v. Crocker, 184 Mass. 586, 
100 Am. St. Eep. 577, 69 N. E. 
327. 

34b. Colorado Springs v. .Stark, 
57 Colo. 384, 140 Pac. 794; Barn- 
ard V. Chicago, 270 111. 27, 110 N. 
E 412. 



1534 



Real Pbopekty. 



[§ 417 



is no actual eucroacliment upon the land; and the fact 
that the easements of light, air, or access are thereby- 
affected is immaterial."^ -^ 

Besides the abutting owner's easements of light, air 
and access, there are occasional decisions or dicta to 
the effect that he has a right of unobstructed view from 
and over every part of the highway to and from his 
property,''*' and a number of courts have recognized 
rights in him to the comfort and satisfaction obtain- 
able from the presence of trees in the highway, with a 
resulting right of action against persons injuring or 
destroying the trees, he being sometimes referred 
to as having an easement in the trees.^*"" In one state 
it has been broadly asserted that the abutting owner has 
a property right in all the advantages and benefits which 



35. Smith v. Corpcration of 
Washington, 20 How. (U. S.) 135, 
15 L. Ed. 858; Bowden v. Jackson- 
ville, 52 Fla. 216, 42 So. 394; 
Eoberts v. City of Chicago, 26 111. 
249; Reilly v. Fort Dodge, 118 
Iowa, 633, 92 N. W. 887; Cal- 
lender v. Marsh, 1 Pick. (Mass.) 
417, 430; City of Pontiac v. Carter, 
32 Mich. 164; RadclifE's Ex'rs v. 
City of Brooklyn, 4 N. Y. 195; 
Brand v. Multnomah County, 38 
Ore. 791, 50 L. R. A. 389, 62 Pac. 
209, 84 Am. St. Rep. 772, 60 Pac. 
390; O'Connor v. Pittsburgh, 18 
Pa. St. 187; Kehrer v. Rich- 
mond City, 81 Va. 745; Walsh v. 
Campbellsport, 123 Wis. 334, 101 
N. W. 709; 1 Lewis, Eminent Do- 
main, §§ 127-140; 3 Dillon, Mun. 
Corp., § 1152. 

In Ohio the abutting owner may 
recover compensation for damage 
to improved property from an un- 
reasonable change of grade. City 
of Akron v. Chamberlain Co., 34 
Ohio St. 328; Cincinnati v. Whet- 



stone, 47 Ohio St. 196. 

36. First Nat. Bank v. Tyson, 
133 Ala. 459, 59 L. R. A. 399, 91 
Am. St. Rep. 46, 32 So. 144; Wil- 
liams V. Los Angeles Ry. Co., 150 
Cal. 592, 89 Pac. 330; Perry v. 
Castner, 124 Iowa, 386, 100 N. W. 
S4 ; McCormick v. Weaver, 144 
Mich. 6, 107 N. W. 314; Jaynes 
v. Omaha St. R. Co., 53 Neb. 631, 
39 L. R. A. 751, 74 N. W. 67; 
Hallock V. Scheyer, 33 Hun (X. 
Y.) Ill; Cobb v. Saxby [1914] 3 
K. B. 822. See Green v. Thresher, 
255 Pa. 169, 83 Atl. 711, and edi- 
torial «ote, 28 Harv. Law Rev. 
499, from which some of the above 
references have been taken. 

36a. Newland v. Iowa Ry. & 
Light Co., 179 Iowa, 228. 159 N. 
W. 244; Donahue v. Keystone Gas 
Co., 181 N. Y. 313, 70 L. R. A. 
761, 106 Am. St. Rep. 549, 73 N. 
E. 1108: Wheeler v. Norfolk- Caro- 
lina Telephone & Telegraph Co., 
172 N. C. 9, 89 S. E. 793; Nor- 
man Milling & Grain Co. v. Beth- 



§ 417] Public Eights. 1535 

accrue to him by reason of the location of liis land 
upon the street.^''' 

Rights of deviation. There are a number of 



decisions and dicta to the effect that, if a highway be- 
comes impassable at a certain point, a traveler may 
deviate on the adjoining land.^^ The existence of such 
a right at common law has been generally assumed; 
but whether it would be recognized at the present day in 
England, in the absence of a prescriptive right to 
deviate, is doubtful."*' Even where the right is recog- 
nized, it is restricted to cases of strict necessity,^" and 
the deviation upon neighboring land must be to the 
smallest possible extent.*^ 

Extinction of highway. The common-law max- 



im, ''Once a highway, always a highway,"^- may be 
regarded as entirely obsolete in this country, and here 
a highway may cease to exist through one of several 
causes. 

There are in many states statutory provisions 
for the "vacation" of a highway, frequently by proceed- 
ings upon petition, more or less similar to proceedings 

urem, 41 Okla. 735, 51 L. R. A. S. 848; 2 Wms. Saund., 161 note 

(N. S.) 1082, 139 Pac. 830. (12). 

37. Donahue v. Keystone Gas 39. See the remarks of Black- 
Co., 181 N. Y, 313, 70 L. R. A. burn, J., in Arnold v. Holbrook, 
761, 106 Am. St. Rep. 549, 73 N. L. R. 8 Q. B. 96, in which he shows 
E. 1108. See 3 Dillon, Mun. Corp. that, in Duncomb's Case, Cro. Car. 
S 1126. 366, and Absor v. French, 2 Show. 

38. Carey v. Rae, 58 Cal. 159; 28, usually referred to in support 
Irwin V. Yeager, 74 Iowa, 174, 37 of the right, the question was 
N. W. 136; Campbell v. Race, 7 not involved. 

Gush. (Mass.) 408, 58 Am. Dec 40. Campbell v. Race, 7 Cush. 

728; Holmes v. Seely, 19 Wend. (Mass.) 408; State v. Brown, 109 

(N. Y.) 507; Williams v. Safford. N. C. 802; Morey v. Fitzgerald, 

7 Barb. (N. Y.) 309; State v. .16 Vt. 487, 48 Am. Rep. 811. 
Brown, 109 N. C. 802, 14 S. E. 41. Holmes v. Seely, 19 Wend. 

98; Morey v. Fitzgerald, 56 Vt. (N. Y.) 510; White v. Wiley, 59 

487, 48 Am. Rep. 811; Taylor v. Hun. 618, 13 N. Y. Supp. 205. 
Whitehead, 2 Doug. (Mich.) 745; 42. Dawes v. Hawkins, 8 C. B. 

Dawes v. Hawkins, 8 C. B. N. (N. S.) 848, 858. 



1536 Real Peoperty. [§ 417 

for the establishment of a highway.^^ The owner of 
land immediately abutting on the highway thus vacated 
is, if the highway is a city street, usually regarded as 
deprived of proj^erty by reason of the impairment of 
his right of access, and so entitled to compensation.^^ 
The courts differ as to whether an abutting owner is 
entitled to compensation in case a part of the highway 
other than that contiguous to his land is vacated, and 
even those which recognize a possible right of com- 
pensation in such case differ as to the criteria by which 
to determine whether he suffers substantial injury dif- 
ferent from that suffered by members of the public 
generally, so as to be entitled to compensation in the 
particular case.^^* 

Some courts hold that the public rights to use land 
for a highway may be lost by adverse i^ossession on the ' 
part of an individual, they taking the view that the 
maxim "Niillum tempus occurrit reyi" is not applicable, 
since the o^vnership of the highway is to be regarded 
as vested in the municipality or quasi municipality, 
rather than in the state.^^ Other courts, however, deny 
that a highway can be thus extingiiishedj^^ and this 

43. 15 Am. & Eng. Law, 396 et 45. City of Fort Smith v. Mc- 
seq.; Elliott, Roads & Streets, §§ Kibbin, 41 Ark. 45, 48 Am. Rep. 
879-881. 19; Inhabitants of Town of Litch- 

44. 1 Lewis, Eminent Domain, field v. Wilmot, 2 Root (Conn.) 
§ 200 et seq.; 3 Dillon, Mun. Corp., 288; Dudley v. Trustees of Frank- 
§ 1160; 3 McQuillan, Mun. Corp., fort. 12 B. Men. (Ky.) 612; City 
§ 1405; Elliott, Roads and Streets, of Big Rapids v. Comstock, 65 
§ 877. See Oler v. Pittsburgh, C, Mich. 78; Meyer v. City of Lincoln, 
C. & St. L. Ry. Co., 184 Ind. 431, 33 Neb. 566, 29 Am. St. Rep. 500, 
111 N. E. 619; Jones v. Aurora, 18 L. R. A. 146, 50 N. W. 763; 
97 Neb. 825, 151 N. W. 958; Cham- Ostrom v. City of San Antonio, 
bersburg Shoe Mfg. Co. v. Cum- 77 Tex. 345, 14 S. W. 66; Knight 
berland Valley R. Co., 240 Pa. 519, v. Heaton, 22 Vt. 480. 

87 Atl. 968. Compare Chenault 46. Reed v. City of Birming- 

V. Collins, 155 Ky. 312, 159 S. ham, 92 Ala. 339, 9 So. 161; Hoad- 

W. 834. ley v. City of San Francisco, 50 

44a. See editorial note, 16 Co- Cal. 265; Ulmau v. Charles Street 

lumbia Law Rev. at p. 139; 3 DU- Ave. Co., 83 Md. 130; Bice v. 

Ion, Mun. Corp., p. 1842. Town of Walcott, 64 Minn. 459, 



§ 417] 



Public Eights. 



1537 



would seem to be the better view, since the municipality, 
so far as it can he considered as the owner of the high- 
way, is so merely as an agent of the state, and as any 
adverse acts by an individual constitute an obstruction 
of the highway, and are consequently a public nuisance, 
the effect of the opposite ^dew is to validate, by lapse 
of time, a public nuisance, — a thing which, by the au- 
thorities generally, cannot be done.^' 

Abandonment. There are a number of deci- 



sions to the effect that the abandonment and consequent 
extinction of a higliwa}" may be shown by nonuser, in 
conjunction with other circumstances.^'' It is sometimes 
said that a highway is not lost by nonuser,^^ but in 
this respect the same principle apparently applies as 
in the case of private easements v"**^ nonuser itself not 
extinguishing the highway, but being a circumstance to 
be considered with other circumstances, in determining 
whether there has been an abandonment thereof. 



67 N. W. 69; City of Vicksburg 
V. Marshall, 59 Miss. 563; Thomp- 
son V. Major, 58 N. H. 242; Ho- 
boken Land & Improvement Co. v. 
City of Hoboken, 36 N. J. Law 
540; Driggs v. Phillips, 103 N. Y. 
77, 8 N. E. 514; Heddleton v. Hen- 
dicks, 52 Ohio St. 460; Com. v. 
Moorehead, 118 Pa. St. 344, 4 Am. 
St. Rep. 599; Almy v. Church, 18 
R. I. 182, 26 Atl. 58; Ralston v. 
Town of Weston, 46 W. Va. 544, 
76 Am. St. Rep. 834, 33 S. E. 
326; Yates v. Town of Warren- 
ton, 84 Va. 337, 10 Am. St. Rep. 
860. 4 S. E. 818. 

47. Reed v. City of Birming- 
ham, 92 Ala. 339. 9 So. 161; City 
of Visalia v. .Jacob, 65 Cal. 434, 
52 Am. Rep. 303, 4 Pac. 433; 
Wolfe V. Town of Sullivan, 133 
Ind. 331, 32 N. E. 1017; Terri- 
tory V. Deegan, 3 Mont. 82; Driggs 
V. Phillips, 103 N. Y. 77; Sim- 



mons, V. Cornell, 1 R. I. 519. See 
2 Wood, Nuisances, § 936. 

48. Beardslee v. French, 7 
Conn. 125, 18 Am. Dec. 86; 
Greist v. Amrhyn, 80 Conn. 280, 
68 Atl. 521; City of Peoria 
V. Johnston, 56 111. 45; People 
v. Cleveland, C. C. & St. L. 
Ry. Co., 269 111. 555, 109 N. 
E. 1064; Louisville, N. A. & C. 
Ry. Co. V. Shanklin, 98 Ind. 573; 
Larson v. Fitzgerald, 87 Iowa, 402, 
54 N. W. 441; Holt v. Sargent, 
15 Gray (Mass.) 97; Burgwyn v. 
Lockhart, 60 N. C. 264; Elliott, 
Roads & Streets, §§ 1172-1177. 

49. Thompson v. Major, 58 N. 
H. 242; Com. v. McNaugher, 131 
Pa. St. 55, 18 Atl. 934; Galbraith 
v. Littiech, 73 111. 209; McCarl 
V. Clarke County, 167 Iowa, 14, 
148 N. W. 1015. 

50. See ante, S 377. 



1538 Real Propeety. [§ 417 

The statute occasionally provides that the failure 
to open a highway for use within a certain time after 
its establishment by statutory proceedings shall be 
regarded as an abandonment,^^ and sometimes there is 
a provision that this shall be the result of a failure to 
use, for a period named, a highway which has been 
opened. °- 

Effect of extinction. When the highway in- 



volves merely a right of user by the public, the owner 
of the "fee," upon the extinction of the highway, re- 
sumes entire dominion over the land, free from any 
rights in the public.^'* Usually, the owner of the fee is 
the abutting proprietor, and thus the extinction enures 
to his benefit. ^^ In some jurisdictions there is a statu- 
tory provision that the abutting owner shall have the 
land in such case.'^ 

"When the "fee" is in the public, there is, by some 
cases, a reverter of the land to the original owner upon 
the extinction of the highway, upon the theory that the 
public, or rather the state, has merely a determinable 

51. Trotter v. Barrett, 164 111. Fontaine, 106 Minn. 225, 119 N. 
262, 45 N. E. 149; Horey v. Vil- W. 400; Blain v. Staab, 10 N. Mex. 
lage of Haverstraw, 124 N. Y. 273, 743, 65 Pac. 177; Heard v. Brook- 
26 N. E. 532; McClelland v. Miller, lyn, 60 N. Y. 242; Lankin v. Ter- 
28 Ohio St. 488; Pickford v. City williger, 22 Ore. 97, 29 Pac. 268; 
of Lynn, 98 Mass. 491; 15 Am. & Paul v. Carver, 24 Pa. St. 207. 
Eng. Enc. Law, 406. 64 Am. Dec. 649. 

52. McRose v. Bottyer, 81 Cal. 54. Thomsen v. McCormick, 136 
122, 22 Pac. 393; Herrick v. Town 111. 135; Harrison v. Augusta Fac- 
of Geneva, 92 Wis. 114, 65 N. W. tory, 73 Ga. 447; Paul v. Carver. 
1034; Freeholders of Mercer 24 Pa. St. 207, 64 Am. Dec. 649; 
County V. Pennsylvania R. Co., 45 Healey v. Babbitt, 14 R. I. 533; 
N. J. Law. 82; Barnes v. Midland Dickenson v. Arkansas City Imp. 
Railroad Terminal Co., 218 N. Y. Co., 77 Ark. 570, 92 S. W. 21, 
91, 112 N. E. 926. 113 Am. St. Rep. 170. 

53. Harris v. Elliott, 10 Pet. 55. 15 Am. & Eng. Enc. Law, 
(U. S.) 25, 9 L. Ed. 333; Benham 420. See Scudder v. City of De- 
V. Potter, 52 Conn. 248; Smith troit, 117 Mich. 77; Haseltine v. 
V. Horn, 70 Fla. 484, 70 So. 435; Nuss, 97 Kan. 228, 155 Pac. 55: 
Waller v. River Forest, 259 111. Edwards v. Smith, 42 Okla. 544, 
223, 102 N. E. 290; Steenerson v. 142 Pac. 302. 



§ 418] Public Eights. 1539 

fee.^^ By other decisions, there is a fee simple, and 
not a mere determinable fee, in the public, and no right 
of reverter exists.^" 

Turnpikes. Turnpikes are highways, the use 

of which by a member of the public is conditional upon 
pa\anent by him of a certain fixed compensation or 
''toll." Turnpikes are usually, if not always, estab- 
lished by private corporations or associations of individ- 
uals, mider authority granted by the state,^^ and the 
right of way may be acquired under the power of emi- 
nent domain, as in the case of any ordinary highway.'^'' 
The proprietors of the turnpike usually have an easement 
only in the land for use as a highway,'''^ but may have 
the ownership or ''fee. "^^ The turnpike must be kept 
in repair by the proprietors thereof, and for injuries 

caused by negligent failure to make repairs they are 
liable.«2 

§ 418. Parks, squares, and commons. In connec- 
tion with the subject of highways, which they resemble 
as involving rights of user in the individual members 
of the public, it seems proper to refer to parks, public 
squares, and commons, though the ownership of land 

56. Gebhardt v. Reeves, 75 111. § 261; Randolph, Eminent Domain. 
.'!01; Matthieson & Hegeler Zinc S 42. 

Co. V. La Salle, 117 111. 411, 8 N. 60. See Wright v. Carter, 27 

E. 81; Plumer v. Johnston. 63 N. J. Law, 76; Robbins v. Borman, 

Mich. 165, 29 N. W. 687; Board 1 Pick. (Mass.) 122; Turner v. 

of Education of Van Wert v. Rising Sun & L. Turnpike Co., 71 

Edsan, 18 Ohio St. 221. And Ind. 547; State v. Maine, 27 

see Fairchild v. City of St. Paul, Conn. 641, 71 Am. Dec. 89. 

46 Minn. 540, 49 N. W. 325. 61. See People v. Newburgh & 

57. Pettingill v. Devin. 35 Iowa, S. Plank Road Co.. 86 N. Y. 1. 
344; Tifft v. City of Buffalo, 82 62. 2 Shearman & R. Negli- 
N. Y. 204. gence, c. 16; Elliott, Roads & 

58. Com. V. Wilkinson, 16 Pick. Streets S§ 111-116; Carver v. De- 
(Mass.) 175, 26 Am. Dec. 654; troit & S. Plank-Road Co., 61 Mich. 
Angell, Highways, S 8; Elliott, 5?4, 28 N. W. 721; Baltimore & 
Roads & St. c. 4. L. T. Co. v. Ca.ssell, 66 Md. 419. 

59. 1 Lewis, Eminent Domain, ',() Arn. St. Rep. 175, 7 Atl. 805. 



1540 Real Peopeety. [<§ 418 

appropriated to these purposes is usually vested in the 
state or municipality, and consequently the rights exer- 
cised therein by the public are but seldom rights in 
another's land. 

The term ''park" is ordinarily applied to a tract 
of land, in or near a town or city, which is subject to 
state or munieiiDal control, and designed to furnish the 
public with opportunities for recreation and to obtain 
fresh air and exercise. The term "square" or ''public 
square" is also used in this connection, without any 
very precise meaning, but usually with reference to a 
space in a city, under municipal control, a part or the 
whole of which is devoted to vegetation of an orna- 
mental or at least agreeable character. Land may be 
acquired for the purpose of a park or public square 
by direct purchase,''^'^^ by proceedings under the power 
of eminent domain,^^ or by dedication of land for the 
purpose by a private individual.*'^' 

Commons. The term "common" is sometimes 

used to describe lands open to use by all the inhabitants 
of a city or town, and subject to the control of the public 
authorities. This is the construction usually given to 
a grant or dedication of land for use as a "common," 
it being in effect thereby declared that the land shall 
be open for use by the public, subject to municipal, or, 
occasionally, state, control.^^ 

63-64. Holt V. City Council of 67. See City of Cincinnati v. 

Somerville, 127 Mass. 408; People White's Lessee, 6 Pet. (U. S.) 431, 

V. Common Council of Detroit, 28 8 L. Ed. 452; Den d. Coniniis- 

Mich. 230, 15 Am. Rep. 202. .sioners of Town of Bath v. Boyd, 

65. 1 Lewis, Eminent Domain, 23 N. C. 194; City of Newport 
§ 271; Brooklyn Park Com'rs v. v. Taylor, 16 B. Men. (Ky.) 699; 
Amstrong, 45 N. Y. 234, 6 Am. White v. Smith, 37 Mich. 291; 
Rep. 70; West Chicago Park Goode v. City of St. Louis, 113 
Com'rs V. Western Union Tele- Mo. 257, 20 S. W. 1048; Craw- 
graph Co., 103 111. 33; St. Louis ford v. Mobile & G. R. Co., 67 
County Court v. GriswoH, 58 Mo. Ga. 405; Sheffield & TuscumbiM 
175. St. Ey. Co. v. Moore, 83 Ala. 294: 

66. See post. § 479. Newell v. Town of Hancock, 67 



§ 418] Public Rights. 1541 

In the New England colonies the term "common" 
was applied to a particular class of lands, which be- 
longed, not to the municipality or to individuals, hut 
rather to associations of individuals. This system of 
holding lands arose from the frequent practice, upon the 
founding of a town, of reserving a large portion of the 
territory within the town limits, to be utilized by the 
settlers in common for pasture, cultivation, the pro- 
curing of timber or building stone, and like purposes. 
Tracts of land thus reserved were called "commons," 
"common lands," or "general fields," and the persons 
entitled to share in the benefits thereof were known as 
"proprietors," in contradistinction to those who, be- 
coming inhabitants of the town at a later period, were 
not regarded as entitled to such benefits. As time went 
on, these common lands became reduced in quantity, 
owing to the extensive allotments of parts thereof by 
the proprietors to individuals, and those which re- 
mained common came gradually, as the numbers of the 
non-proprietors increased so that they controlled the 
policy and public opinion of the town, to be regarded 
as the property of the town, rather than that of the 
proprietors or their descendants; and so much of the 
old common lands as at the present day retain their 
common character are utilized chiefly for park and 
pasture purposes, for the benefit of all the inhabitants.^'^ 
There have been a number of decisions in regard to 

N. H. 244, 35 Atl. 253; Trustees son, 2 Johns. Cli. (N. Y.) 320. 
of Western University v. Ecbin- 68. See Johns Hopkins Unlver- 

son, 12 Serg. & R. (Pa.) 29; Carr sity Studies in Historical & Politi- 

V. Wallace, 7 Watts (Pa.) 394; cal Science, Series 1, Nos. II., IX., 

Bell V. Ohio & P. E. Co., 25 Pa. X., by Prof. H. B. A.lams, and 

St. 161, 64 Am. Dec. 687. Series 4, Nos. XL, XIL, by Mel- 

■So occasionally, in colonial grants, ville Egleston, Esq. 
certain land was given for use as The same system of commons oc- 

a "common," this being regarded casionally e.xisted in New York, 

as in effect a gift of the land to See John Hopkins Studies, Series 

the town. Town of Southampton 4, No. I., by Irving Elting, Esq.; 

V. Mecox Oyster Bay Co., 12 N. Appley v. Trustees of Montauk, 38 

Y. St. Rep. 514; Donton v. .lack- Bnrb. (K. Y.) 275. 



1542 Real Propekty. [§ 419 

these couunon lands in New England, as, for instance, 
to determine who constitute the proprietors, in a partic- 
ular case,^^ the regularity of their meetings and pro- 
ceedings,'^'^ or the validity of sales or allotments of the 
lands to individuals.'''^ Such questions, however, are of 
chiefly local interest, and, moreover, have lost their 
importance to a great extent with the disappearance 
of the common lands and the proprietary^ bodies, and 
no consideration of these matters will be here at- 
tempted. 

Similar to the New England coimnon lands were 
the communal lands belonging to the inhabitants of 
French and Spanish villages in parts of the territory 
included in the Louisiana purchase. The titles of these 
conmaunal lands were confirmed in favor of the village 
Inhabitants by act of congress after the cession of the 
territory to the United States.'^- 

§ 419. Customary rights. In England, persons of 
a certain locality or of a certain class may have, by 
immemorial custom, a right to make use of land belong- 
ing to an individual. Thus, there may be a custom 
for the inhabitants of a certain town to dance or play 
games on a particular piece of land belonging to an in- 

69. See Brackett v. Persons Un- cester v. Gaffney, 8 Allen (Mass.) 
known, 53 Me. 228, 87 Am. Dec. 11. 

548; Stevens v. Taft, 3 Gray 72. Savignac v. Garrison, 18 

(Mass.) 487. How. (U. S.) 136, 15 L. Ed. 290; 

70. See Copp v. Lamb, 12 Me. Dent v. Emmeger, 14 Wall. (U. 
312; Dolloff V. Hardy, 26 Me. 545; S.) 308, 20 L. Ed. 838; Glasgow 
Coffin V. Lawrence, 143 Mass. 110, v. Hortig, 1 Bla«k (U. S.) 595, 

9 N. E. 6; Goulding v. Clark, 17 L. Ed. 110; Hebert v. Lavalle, 
34 N. H. 148; Woodbridge v. 27 111. 448; Lavalle v. Strobel, 89 
Proprietors of Addison, 6 Vt. 204. 111. 370; Haps v. Hewitt, 97 111. 

71. See Mitchell v. Starbuek, 498; Page v. Scheibel, 11 Mo. 167; 

10 Mass. 5; Dolloff v. Hardy, 26 City of St. Louis v. Toney, 21 
Me. 545; Coburn v. Ellenwood, 4 Mo. 243; Carondelet v. City of 
N. H. 99; Beach v. Fay, 46 Vt. St. Louis, 29 Mo. 527; Glasgow 
337; Dall v. Brown, 5 Cush. v. Baker, 85 Mo. 559; Id., 72 Mo. 
(Mass.) 289; Inhabitants of Glou- 441. 



§ 419] 



Public Rights. 



154:5 



dividual/"^ or to go thereon in order to get water." ^ 
So there may be a custom for fishermen to dry nets on 
certain land,'-^ or for persons in a certain trade (victna- 
lers) to erect booths upon certain private land during a 
fair."^® The custom, to be valid, "must have continued 
from time immemorial, without interruption, and as 
of right; it must be certain as to the place, and as to 
the persons; and it must be certain and reasonable as 
to the subject matter or rights created.'""'' 

A right cannot be acquired by custom to use 
particular land on navigable water for a wharf or land- 
ing place, since this would in effect exclude the ow^ier 
from all use of the land, and is unreasonable;'* and so 
there can be no right by custom to maintain a building 
or other permanent structure on a person's land.'*^ 
Likewise, a right to take profits from land, as distinct 
from the mere right to use the land, cannot be estab- 
lished by custom, since the effect of such a custom would 
be to exhaust the profits. *° 



73. Fitch V. Bawling, 2 H. 
Blackst. 394; Abbott v. Weekly, 1 
Lev. 176. 

74. Eace v. Ward, 4 El. & Bl. 
702. 

The public may, it has been de- 
cided, acquire a prescriptive right 
to procure from a spring water 
for a drinking trough on the high- 
way. Kiser v. Douglas County, 70 
Wash. 242, 41 L. R. A. (N. S.) 
1066, 126 Pac. 622. 

75. Blundell v. Caterall, 5 Barn. 
& Aid. 268, 295. 

76. Tyson v. Smith, 9 Adol. & 
E. 406. 

77. Leake, Prop, in Land, 552. 
See Ck). Litt. 110b; Tyson v. Smith. 
9 Adol. & E. 406; Goodman v. 
City of Saltash, 7 App. Cas. 633. 

78. Talbott v. Grace, 30 Ind. 
389, 95 Am. Dec. 703; O'Neill v. 



Annett, 27 N. J. L. 290, 72 Am. 
Dec. 364; Thomas v. Ford, 63 Md. 
346, 52 Am. Rep. 513; Pearsall v. 
Post, 20 Wend. (N. Y.) Ill; Post 
v. Pearsall, 22 Wend. (N. Y.) 425; 
Bethum v. Turner, 1 Me. Ill; 
Chambers v. Furray, 1 Yeates 
(Pa.) 167; Cooper v. Smith, 9 
Serg. & R. (Pa.) 25. Compare 
Knowles v. Dow, 22 N. H. 387. 

79. Attorney General v. Tarr, 
148 Mass. 309, 2 L. R. A. 87, 19 
N. E. 358. A like view was taken 
as to an asserted public right 
to pile wood on an individual's 
land. Littlefield v. Maxwell, 31 
Me. 134, 50 Am. Dec. 653. 

80. Smith v. Gatewood, Cro. 
Jac. 152; Id. sub nom. Gateward's 
Case, 6 Coke 59b; Race v. Ward, 
4 El. & Bl. 702; Hill v. Lord, 48 
Me. 83; Cobb v. Davenport. 32 N. 



ibU 



Real Property. 



[§ 420 



Occasionally in tliis country it lias been decided that 
rights to use private land cannot thus be created by 
custom, for the reason that they would tend so to bur- 
den land as to interfere with its improvement and 
alienation, and also because there can be no usage in 
this country of an immemorial character.^^ In one state, 
on the other hand, the existence of such customary 
rights is affirmed,*- and in others this is assumed in 
decisions adverse to the existence of the right in the 
particular case.^^ 

§ 420. Rights of fishing. While the individual 
members of the public have rights of fishing in waters, 
the soil below which is the property of the state, ^^ ex- 
cept in those cases in which an exclusive right to fish 
there has been granted by the state legislature or other 
sovereign authority,*^ they have, as a general rule, no 



J. Law, 369; Pearsall v. Post, 20 
Wend. (N. Y.) Ill; Post v. Pear- 
sall, 22 Wend. (N. Y.) 425; Per- 
ley V. Langley, 7 N. H. 233; Nudd 
V. Hobbs, 17 N. H. 524; Smith 
V. Floyd, 18 Barb. (N. Y.) 522; 
Waters v. Lilley, 4 Pick. (Mass.) 
145, 16 Am. Dec. 333; Turner v. 
Selectmen of Hebron, 61 Conn. 
175, 14 L. R. A. 386, 22 Atl. 951. 

81. Graham v. Walker, 78 
Conn. 130, 61 Atl. 98, 2 L. R. A. 
(N. S.) 98.3, 112 Am. St. Rep. 93. 
3 Ann. Cas. 641; Ackerman v. 
Shelp, 8 N. J. Law, 125; Harris 
V. Carson, 7 Leigh (Va.) 632; 
Delaplane v. Crensliaw, 15 Grat. 
(Va.) 457. See Gray, Perpet- 
uities, §§ 572-586, where the sub- 
ject of this section is fully dealt 
with. 

82. Sudd V. Hobbs, 17 S. H. 
524; Knowles v. Dow, 22 N. H. 
387. 



83. See cases cited ante, notes 
78-80. 

84. Manchester v. Massachu- 
setts, 139 U. S. 240; Barbaro v. 
Boyle, 119 Ark. 377. 178 S. W. 
378; Sollers v. Sollers, 77 M. 148, 
20 L. R. A. 94, 39 Am. St. Rep. 
404, 26 Atl. 188; Inhabitants of 
West Roxbury v Stoddard, 7 Allen 

(Mass.) 158; Lincoln v. Davis, 
53 Mich. 375. 51 Am. Rep. 116, 
19 N. W. 103; Arnold v. Mundy, 
6 N. .1. Law, 1, 10 Am. Dec. 356; 
Hooker v. Cummings, 20 Johns. 
(N. Y.) 90, 11 Am. Dec. 249; Col- 
lins V. Benbury, 25 N. C. 277, 38 
Am. Dec. 722; Bell v. Smith, 171 
N. C. 116, 87 S. E. 987; Sloan 
V. Biemiller, 34 Ohio St. 492; 
Carson v. Blazer, 2 Binn. (Pa.) 
475; Legoe v. Chicago Fishing Co.. 
24 Wash. 175, 64 Pac. 141. 

85. See Sollers v. Sollers. 77 
Md. 148. 39 Am. St. Rep. 404: 



§ 421] 



Public Rights. 



1545 



such right in water which covers land belonging to a 
private undividual.^^ There is an exception to this rule, 
however, in the case of the shore of tide w^aters, that is, 
the space between high and low water; and although 
this belongs to an individual, the public may take fish, 
including shellfish, thereon,^'^ provided they do so with- 
out trespassing on the latter 's land above high-water 
mark,^^ and do not undertake to attach fishing appli- 
ances to the shore. ^^ 

§ 421. Rights of navigation. Every member of the 
public has the right of navigation in waters capable of 
such use, without reference to whether the land be- 
neath the water belongs to the public or to individual 
owners. The rights which individual owners may have 
in the land below the water or in the shores or banks are 



Power V. Tarzewells, 25 Grat. 

(Va.) 786; Trustees of Brook- 
haven V. Strong, 60 N. Y. 56; 
Heckman v. Swett, 107 Cal. 276, 
40 Pac. 420; Fagan v. Armistead. 
33 N. C. 433. 

86. Smith v. Andrews [1891] 2 
Ch. .678; Johnston v. O'Neill 

(1911) App. Gas. 552; Holyoke 
Water Power Co. v. Lyman, 15 
Wan. (U. S.) 500, 21 L. Ed. 133; 
Beckman v. Kreamer, 43 111. 447, 
92 Am. Dee. 146; Waters v. Lilley, 
4 Pick. (Mass.) 145, 16 Am. Dec. 
.333; Lincoln v. Davis, 53 Mich. 
375. 51 Am. Rep. 116, 19 N. W. 
103; Hooker v. Cummings, 20 
.Johns. (N. Y.) 90, 11 Am. Dec. 
249; Lembeck v. Nye, 47 Ohio 
St. 336, 21 Am. St. Rep. 828; Bay- 
lor v. Decker, 133 Pa. St. 168: 
Winans v. Willetts, — Mich. — , 
163 N. W. 993; Griffith v. Hol- 
raan. 23 Wash. 347, 83 Am. St. 
Rep. 821, 54 L. R. A. 178, 63 
Pac. 239; State v. Theriault, 70 



Vt. 617, 41 Atl. 1030, 43 L. R. A. 
290, 67 Am. St. Rep. 695. See New 
England Trout & Salmon Club v. 
Mather, 68 Vt. 338, 33 L. R. A. 
569, 35 Atl. 323. And compare 
Hogg V. Beerman, 41 Ohio St. 81, 
52 Am. Rep. 71; and cases cited 
post, § 421, note 99. 

87. Bagott V. Orr, 2 Bos. & P. 
472; Shiveley v. Bowlby, 152 U. 
S. 1, 38 L. Ed. 331; Bickel v. 
Polk, 5 Har. (Del.) 325; Peck v. 
Lockwood, 5 Day (Conn.) 22; 
Moulton V. Libbey, 37 Me. 472, 59 
Am. Dec. 57; Wilson v. Inloes. G 
Gill. (Md.) 121; Lakeman v. 
Burnham, 7 Gray (Mass.) 437; 
Allen V. Allen. 19 R. I. 114. 

88. 3 Kent, Comm. 417; Bickel 
V. Polk, 5 Har. (Del.) 325; Coo- 
lidge V. Williams, 4 Mass. 140; 
Cortelyou v. Van Brundt, 2 Johns. 
(N. Y.) 357. 3 Am. Dec. 439. 

89. Duncan v. Sylvester, 24 Me. 
482. 41 Am. Dec. 400; Matthews 
v. Treat, 75 Me. 594; Locke v. 



1546 



Real Pkopekty. 



[\ 421 



subordinate to this right of navigation in the public, 
and consequently they cannot place any structure or 
article upon the land below the water which is calculated 
substantially to interfere with navigation.^^ 

"Floatable" streams— that is, streams which, while 
not capable of navigation by vessels or boats, are 
capable of use for floating timber to market — are, in 
this limited sense, navigable, and the rights of private 
owners of the land thereunder are regarded as, to some 
extent, subject to the rights of the public to use them 
for floating timber.''^ Streams are to be regarded as 
"floatable," it seems, even though they can be thus 
used only at certain seasons of the year, provided these 
seasons recur with regularity.''- The rights of the pub- 
lic to float timber on such streams are not exclusive of 
the rights of owners of land under or abutting on the 



Motley, 2 Gray (Mass.) 265; Whit- 
taker V. Burhans, 62 Barb. (N. Y.) 
237. 

90. Barney v. Keokuk, 94 U. 
S. 324, 24 L. Ed. 224; Yolo County 
V. City of Sacramento, 36 Cal. 
193; Charleston & S. Ry. Co. v. 
Johnson, 73 Ga. 306; Wadsworth 
V. Smith, 11 Me. 278, 26 Am. Dec. 
525; Brooks v. Cedar Brook & S. 
C. R. Imp. Co., 82 Me. 17, 7 L. 
R. A. 460, 17 Am. St. Rep. 459, 
19 Atl. 87; Com. v. Chapin. 5 
Pick. (Mass.) 199; Smith v. City 
of Rochester, 92 N. Y. 463; Hogg 
V. Beerman, 41 Ohio St. 81, 52 Am. 
Rep. 71: Barclay Railroad & CoaT 
Co. V. Ingham, 36 Pa. St. 194; 
Cobb V. Bennett, 75 Pa. St. 326; 
Volk V. Eldred, 23 Wis. 410; Ste- 
vens Point Boom Co. v. Reilly, 46 
Wis. 237, 49 N. W. 978. 

91. Lewis V. Coffee County, 77 
Ala. 190, 54 Am. Rep. 55; Wads- 
worth V. Smith, 11 Me. 278, 26 
Am. Dec. 525; Thunder Bay River 



Booming Co. v. Speechly, 31 Mich. 
336. 18 Am. Rep. 184; Carter v. 
Thurston, 58 N. H. 104, 42 Am. 
Rep. 584; Shaw v. Oswego Iron 
Co., 10 Or. 371, 45 Am. Rep. 146; 
Gatson v. Mace, 33 W. Va. 14, 5 
L. R. A. 392, 25 Am. St. Rep. 
848, 10 S. E. 60; Olson v. Merrill, 
42 Wis. 203; Lebanon Lumber Co. 
V. Leonard, 68 Ore. 147, 136 Pac. 
891; Fortson Shingle Co. v. Skag- 
land, 77 Wash. 8, 137 Pac. 304. 

92. Lewis v. Coffee County, 77 
Ala. 190, 54 Am. Rep. 55; Hubbard 
V. Ben, 54 111. 110, 5 Am. Rep. 98: 
Brown v. Chadbourne, 31 Me. 9. 
50 Am. Dec. 641; Holden v. Rob- 
inson Mfg. Co., 65 Me. 216; Thun- 
der Bay River Booming Co. v. 
Speechly, 31 Mich. 336, 18 Am. 
Rep. 184; Smith v. Fonda, 64 
Miss. 551, 1 So. 757; Morgan v. 
King, 35 N. Y. 454, 91 Am. Dec. 
58; Commissioners of Burke 
County V. Catawba Lumber Co.. 
116 N. C. 731, 47 Am. St. Rep. 



<^ 421] 



Public Rights. 



1547 



stream to dam or otherwise utilize the waters thereof, 
it being suflScient if there is left a reasonable passage 
for timber.^^ 

Incidental to the right of navigation is the right 
to anchor one's vessel in the stream for a reasonable 
time, either adjoining one's own land or elsewhere, in 
such a way as not unduly to obstruct navigation or to pro- 
vent access to the water, for purposes of navigation, by 
other persons who may own land abutting thereon/-** But 
there is no incidental right of using adjoining land for a 
mooring or landing place,*^^' or of going thereon for the 
purpose of towage.''^ On principle, moreover, it seems,^'' 
the fact that the public have a right of navigation over 
private land should give them no right of hunting,^'^'^ 



829, 840, 21 S. E. 941, and note; 
Haines v. HaU, 17 Ore. 165. 

93. Thunder Bay River Boom- 
ing Co. V. Speedily, 31 Mich. 336, 
18 Am. Rep. 184; Kretzschmar v. 
Meehan, 74 Minn. 211, 77 N. W. 
41; Foster v. Sears port Spool & 
Black Co., 79 Me. 508, 11 Atl. 273; 
A. C. Conn. Co. v. little Suamico 
Lumber Mfg. Co., 74 Wis. 652, 43 
N. W. 660. 

94. Gann v. Whitstable Free 
Fishers, 11 H. L. Cas. 192; Orig- 
inal Hartlepool Collieries Co. v. 
Gibb, 5 Ch. Div. 713; Bainbridge 
V. Sherlock, 29 Ind. 364, 95 Am. 
Dec. 644; Rice v. Ruddiman, 10 
Mich. 125; Delaware River Steam- 
boat Co. V. Burlington & B Steam 
Ferry Co., 81 Pa. St. 103. Com- 
pare Wall V. Pittsburg Harbor Co., 
152 Pa. St. 427. 

95. Ensminger v. People, 47 111. 
384; Bainbridge v. Sherlock, 29 
Ind. 364, 95 Am. De«. 644; Smith 
V. Atkins, 22 Ky. L. Rep. 1619, 
53 L. R. A. 790, 60 S. W. 93(T; 
State V. Wilson, 42 Me. 9; Steam- 
boat Magnolia v. 'Mai-shall, 30 



Miss. 109; Weems S. B. Co. v. 
People's S. B. Co., 214 U. S. 345. 
53 L. Ed. 1024. 

96. Ball V. Herbert, 3 Term R. 
253. And see, as to trespasses on 
the banks while driving logs, or 
in the contruction of booms, 
Brown v. Chadbourne, 31 Me. 9, 
50 Am. Dec. 641; Hooper v. Hob- 
son, 57 Me. 273, 99 Am. Dec. 769. 
Compare Weise v. Smith, 3 Or. 
445, 450; Lownsdale v. Gray's Har- 
bor Boom Co., 21 Wash. 542, 58 
Pac. 663, 3 Kent. Comm. 426. 

97. See editorial note. 27 Harv. 
Law Rev. 750. 

97a. Adams v. Pease, 2 Conn. 
481; Schulte v. Warren, 218 111. 
108, 13 L. R. A. (N. S.) 745, 75 
N. E. 783; Sterling v. Jackson, 
69 Mich. 488, 37 Am. St. Rep. 
405, 37 N. W. 845; Hall v. Alford. 
114 Mich. 165, 72 N. W. 137, 38 
L. R. A. 205; State v. Shannon, 
36 Ohio St. 423; Hooker v. Cum- 
mings, 20 Johns. (N. Y.) 90;Fitz- 
hardinge v. Purcell, 77 Law 
.Tourn. Ch. Div. 529. 



154S 



Beal Property. 



[§ 421 



or fisliing-.^^ But there are occasional decisions recog- 
nizing such a right.^^ 



98. Hartman v. Tresise, 36 
Colo. 146, 4 L. R. A. (N. S.) 872, 
84 Pac. 685; Schiilte v. Warren, 
218 111. 108, 75 N. E. 783; New- 
England Trout & S. Club v. 
Mather, 68 Vt. 338, 33 L. R. A. 
569, 35 Atl. 323. 

99. As to hunting, see Fores- 
tier V. Johnson, 164 Cal. 24, 127 
Pac. 156; Diana Shooting Club v. 
Husting, 156 Wis. 261, 145 N. W. 
816. As to fishing, see Willow 
River Club v. Wade, 100 Wis, 86 
42 L. R. A. 305, 76 N. W. 272; 
Bodi V. Winous Point Shooting 



Club, 57 Ohio St. 226, 48 N. E. 
944 (semhle) ; Winous Point 
Shooting Club v. Slaughterbeck, 
96 Ohio, 139, 117 N. E. 162 (sem.- 
ble.) 

The Colonial ordinance in force 
in Massachusetts and Maine, by 
which the title to the flats or 
shore was conferred on the up- 
land owner, expressly reserved the 
right to every householder in the 
community to go upon such flats 
for fishing and fowling. See 
Comm. V. Alger, 7 Cush. (Mass.) 
53; Moore v. Griffin, 22 Me. 350. 



Part Five. 
the transfer of rights in land. 



CHAPTER XVIII. 

TRANSFER BY THE GOVERNMENT. 

§ 422. The nature of the government title. 

423. Grants by the United States. 

424. Grants by the states. 

425. Spanish and Mexican grants. 

426. Patents. 

§ 422. The nature of the government title. All 
the land in the United States, now owned by individnals, 
formerly belonged either to the federal government, to 
an individual state, or to a foreign nationality, which 
disposed of it to an individual proprietor before that 
particular territory became a part of this country. These 
grants of land by foreign states to individuals, made 
before the incorporation of that particular territory in 
the United States, are the chief basis of titles in some 
parts of the country, and it seems proper to briefly 
sketch the history of the various acquisitions of terri- 
tory by this nation, in order bettor to understand the 
various classes of government grants on which the exist- 
ing proprietary rights of individuals may be based. 

The British claim of dominion over the territory 
included witliin the original thirteen colonies was based 
upon discovery, consummated by possession, the wan- 
deriug Indian tribes being regarded as having a uiere 
right of occu[)ancy.^ The dominion and ownership tlius 
acquired was, in some of the colonies, granted by the 
British crown to individual proprietors or proprietary 
companies, by whom pa its of the land were in turn 

1. Johnson's Lessee v. Mc- L. Ed. 681. 
Intosh, 8 Wheat. (U. S.) 543, 5 

(1549) 

2 R. P.— 23 ^ ' 



1550 Real Property. [§ 422 

granted to individuals. In otliers of tlie colonies the 
title to the soil remained in the British crown, and 
grants were made to individuals by the governor of 
the colony in the name of the king. After the Revolu- 
tion, tlio title of the crown to lands still undisposed of 
passed to the states, and lands belonging to the original 
proprietaries were in some cases confiscated. Thus it 
may be said that the title to all land within the original 
thirteen states is derived, directly or indirectly, from 
the British crown, with the exception only of con- 
siderable bodies of land in the state of New York, the 
title to which is based on grants by the Dutch govern- 
ment or its representatives, which grants, however, were 
recognized and confirmed by the British crown upon the 
conquest of that territory. 

The territory west of the Allegheny mountains and 
east of the Mississippi river, which had been claimed 
by the French, came, as a result of the French and 
Indian war, and of the treaty of Paris in 1763, under 
the exclusive dominion of England. The lands within 
this territory were, by royal proclamation, set apart as 
''crown lands." After the separation of the colonies 
from England, a number of the colonies asserted claims 
to parts of these crown lands, as being included within 
their limits under their royal charters. These claims, 
so far as concerned what was known as the ''North- 
west Territory" — that is, the territory northwest of 
the Ohio river — were opposed by the other colonies in 
the negotiations leading up to the Articles of Confedera- 
tion, and finally the colonies asserting such claims ceded 
practically all their lands, or their claims thereto, within 
the limits of such territory, to the confederation. Of 
the territory south of the Ohio river, the state of 
Kentucky was formed out of that part of Virginia west 
of the Allegheny mountains, while the balance of this 
territory, so far south as the Spanish territory of Flor- 
ida, was ceded to congress by the respective states 
claiming it. 



§ 422] Tkansfer by Government. 1551 

In 1803, the United States purchased from France 
the ^'Louisiana" territory', which was bounded on the 
east by the Mississippi river, and on the west by a line 
which ran, approximately, along the present eastern 
boundary of Idaho, and through the center of what are 
now Colorado and New Mexico. This territory extended 
north to Canada, and south to the Arkansas river and 
the present northern boundary of Texas. In 1819, the 
"Florida" purchase was made from Spain, this includ- 
ing the present Florida and parts of Mississippi, Ala- 
bama, and Georgia. In 1845, Texas, which had obtained 
independence from Mexico in 1836, was annexed to the 
United States. In 1848, as a result of the war with 
Mexico, that nation ceded to the United States territory 
included, approximately, within the present limits of 
California, Nevada, Utah and Arizona, and within parts 
of Colorado and New Mexico, it extending in effect 
from the Pacific ocean to the Western limit of the Louis- 
iana purchase ; and subsequently, in 1853, a compara- 
tively small portion of territory, adjoining the present 
Mexican boundary, w^as purchased from Mexico, in or- 
der to settle a question as to the limits of the cession 
of 1848, this being known as the "Gadsden Purchase." 
In 1846, by treaty with Great Britain, the territory com- 
prising that now occupied by Washington, Oregon, and 
Idaho, which had been in dispute between the two 
countries for many years, was ceded by Great Britain, 
this country ceding in return all claim to the terri- 
tory to the North thereof. In 1867 the ]irosent terri- 
tory of Alaska was purchased from Russia. 

While by far the greater part of the lands of which 
either the United States government or individual states 
have had the ownership and control has been acquired 
either from a foreign state or by cession from the 
general government to a state, or vice versa, land may 
be acquired from individual owners, by either the 
United States or an individual state, by forfeiture, es- 
cheat, the exercise of the jjowcj" of eminent domain, or 
voluntary transfer. 



1552 Real Propeety. [§ 423 

§ 423. Grants by the United States. The territory 
ceded to the confederation by individual states, and 
that acquired by the present government from foreign 
powers, was, for the most part, free from any claims 
of ownership by individuals, and was therefore open to 
disposition by the government in such a way as seemed 
expedient. The land thus owned and controlled by the 
government, known as "public land," has been grad- 
ually disposed of to individuals and corporations by 
various methods, intended, and usually adapted, to 
aid in the settlement and industrial development of the 
country. The more important methods of disposition 
wiiich have been adopted will be brief!}" described. 

Public sales. In the early period of the land 



system it was the custom to offer lands, as soon as sur- 
veyed, at public sale, in accordance with a proclamation 
by the president, and at a minimum price.^ This sys- 
tem of disposing of public lands gave room for much 
abuse and oppression, it often occurring that the land 
had been improved by actual settlers, who would be dis- 
possessed by purchasers at these sales, and it gradually 
fell into disuse. It is now to some extent abolished by 
statute.^ The amount of land held under title thus 
acquired from the government is not large. 

Pre-emption. In consequence of the evils re- 



sulting from the system of public sales, the "pre-emp- 
tion" system was instituted, by which one who settled 
on one hundred and sixty acres of land, improving it 
and erecting a dwelling thereon, was entitled to pur- 
chase the land in preference to any other person. After 
settling on the land, he was required to file a statement 
or "entry" in the land office within a certain time, 
declaring his purpose to claim the right of pre-emption, 
and also to file proof that he was entitled to the right', 

2. See Rev. St. U. S. §§ 2353, 9, 10; 1 Dembitz, Land Titles, p. 
2357-2360. 620, note. 

3. See 26 U. S. Stat. 1099, §§ 



§ 423] Transfer by Government. 1553 

and to pay the sum fixed by law as the purchase price. 
He then received a certificate of entry.* Before making 
such proof and payment, the claimant was regarded as 
having merely a privilege to purchase the land, of which 
he might be deprived by the government by a grant or 
sale to others.^ And such privilege or right of pre- 
emption could not, by the express provision of the stat- 
ute, be assigned to another person, though the pre- 
emptor could transfer his interest after payment and 
issue of the certificate.^ The pre-emption law has now 
been repealed.''' 

Homestead entry. Since the rejieal of the 



laws allowing public sales and of the pre-emption law, 
the only system of general application for the ac- 
quisition of public lands is under the ''homestead" 
law. By this law, any citizen, or intending citizen, who 
is an adult or head of a family, w'ho does not own one 
hundred and sixty acres of land in any state or terri- 
tory, and who has not previously exercised the home- 
stead right, ma}" make application for the benefit of the 
law, and this, if followed by bona fide occupation and 
cultivation of the land for five years, entitles him to a 
certificate and patent for the land, wathout making any 
payment other than the land-office fees.^ 

— —Railroad grants. Great quantities of land have 



been granted out of the public domain of the United 
States to aid and stimulate railroad construction 
through the territory in which the land lay. Tliese 
grants usually consist of the odd-numbered sections on 
both sides of the railroad to a certain distance, frequent- 
ly five miles, and the even-numbered sections, thereby 

4. Rev. St. U. S. §§ 2257-2288 v. Craft, 13 Wall. (U. S.) 291. 

5. Frisbie v. Whitney, 9 Wall. 20 L. Ed. 562. 

fU. S.) 187, 19 L. Ed. 668; Yo- 7. Act March 3, 1891 (26 Stat. 

Semite Valley Case, 15 Wall. (U. 1097). 

S.) 77, 21 L. Ed. 82. 8. Rev. St. U S. ?§ 2289. 2;i02. 
0. Rev. St. U. S. § 2263: Myers 



155i Real Pkopehty. [§ 42^^ 

presumably increased in value, the government there- 
after holds at an increased price. In many cases these 
grants to aid in the building of railroads have been 
made to the state in which the railroad was to be built, 
instead of to the corporation building it. In such cases 
the state takes merely the legal title, in trust for the 
railroad.^ 

These grants to the railroads are subject to any 
previous rights w^hich may have been acquired by others 
in the lands granted, under the pre-emption, homestead, 
or other law^s. • To compensate for any loss to the rail- 
road corporation through such causes, the statute 
making the grant usually provides for ''indemnity 
lands" at a greater distance from the railroad, these 
being lands which the railroad company is authorized 
to take in lieu of those in its original grant already 
taken up by others. ^*^ A railroad grant almost in- 
variably takes eifect so soon as the survey or location of 
the proposed railroad through the public land has been 
approved by the land office, and the title to the alter- 
nate sections, as named in the act constituting the 
grant, then vests in the railroad company as of the date 
of the grant. ^^ 

— —Grants to states. Congress has, at various times 
and for divers purposes, granted parts of the land to 
states. Among the most important of these grants are 

9. Rice V. Minnesota & N. W. Iowa Falls Town Lot & Land Co. 
R. Co., 1 Black (U. S.) 358, 360, v. Griffey, 143 U. S. 32. 36 L. Ed. 
17 L. Ed. 147; Wulsey v. Chap- 64. 

man, 101 U. S. 755, 25 L. Ed. 11. Van Wyck v. Knevals, 106 

915; Schulenberg v. Harriman, 21 U. S. 360, 27 L. Ed. 201; Sioux 

Wall. (U. S.) 60, 22 L. Ed. 554. City & Iowa Falls Town Lot & 

10. Leavenworth, L. & G. R. Land Co. v. Griffey, 143 U. S. 32, 
Co. V. United States, 92 U. S. 36 L. Ed. 64; Curtner v. United 
733, 23 L. Ed. 634; Broder v. Na- States, 149 U. S. 672, 37 L. Ed. 
toma Water & Mining Co.. 101 U. 893; St. Paul & S. C. R. Co. v. 
S. 274. 25 L. Ed. 790; Winona & Winona & St. P. R. Co., 112 U. 
St. P. R. Co.. V. Barney. 113 U. S. S. 720, 28 L. Ed. 872. 

618, 28 L. Ed. 1109; Sioux City & 



§ 423] Transfer by Government. 1555 

those for educational purposes. Usually, section six- 
teen in every township, and sometimes also section 
thirty-two, has been granted to the state or territory 
for the su]3port of schools; besides which, grants have 
been made for state universities, agricultural colleges, 
and similar purposes. 

To each state, also, in which there were then public 
lands, five hundred thousand acres were, by act of 
congress, granted for internal improvements, and this 
grant extends to each new state as it is admitted. ^^ 

By the ' ' swamp land ' ' grant of 1850, all swamp and 
overflowed lands unfit for cultivation on that account 
were granted to the several states in which they were 
situated, subject to certain restrictions, for the purpose 
of aiding in the reclamation of such lands. ^^ 

Townsites. The statutes of the United States 



specify three methods by which public lands may be 
acquired for townsites: (1) The president may reserve 
land for townsite purposes on harbors or rivers, or at 
other possible centers of population, and lots therein 
may be sold at public outcry. (2) Persons desiring to 
found a city or town on public land may locate a town- 
site not over six hundred and forty acres in extent, and 
lay off lots therein, and the president may then author- 
ize the sale of such lots at a minimum price of ten dol- 
lars per lot. (3) Public land which has actually been set- 
tled upon and occupied as a townsite may be entered in 
the office as a townsite by the municipal authorities 
thereof, or by the county judge. ^^ 

Mineral lands. Lands belonging to the United 

States which contain valuable deposits of minerals have 
usually been excepted from the operation of general 
laws for the acquisition of land jjy individuals, such as 
the pre-emption and homestead laws. For many years, 

12. Act Sept. 8, 1841 (Rev. St. 14. Rev. St. §§ 2380-2389; 2 
U. S. § 2378). Copp. Pub. Land Laws (1890) 

13. Rev. St. U. S. § 2479. 1010-1013. 



1556 Reau Property. [§ 423 

mineral lands were merely leased by the government for 
the purpose of working. After the discoveries of pre- 
cious metals in the western territory, the mineral de- 
posits on the public lands were worked by the immi- 
grants under mining regulations established by them- 
selves, and without any permission from the government, 
and the courts adopted the fiction that the first appro- 
priator, in accordance with the local mining regulations, 
had a license from the government to work the mines.^^- 
It was not until 1866 that congress passed an act pro- 
viding for the acquisition of mineral lands within the 
public domain by individuals at nominal prices. This 
statute adopted the essential features of the local 
miners' regulations in regard to the acquisition or "lo- 
cation" of claims, and all legislation by congress on the 
subject has recognized the validity of such regulations, 
as well as of state statutes, when not in conflict with 
the acts of congress. ^*^ 

The statutes on the subject of the acquisition of 
claims make a distinction between mineral deposits in 
''lodes" or "veins," these being equivalent terms, and 
"placer" deposits. A "lode" or "vein," as the terms 
are used in the statute, is a "line or aggregation of 
metal imbedded in quartz or other rock in place," while 
the term "placer" is applied to ground which "contains 
mineral in its earth, sand, or gravel; ground that in- 
cludes valuable deposits not in place,— that is, not fixed 
in rock, — but wiiich are in a loose state, and may, in 
most cases, be collected by washing or amalgamation 
without milling. ' '^^ 

Any citizen or intending citizen, upon discovering 
a vein or lode of minerals on public land, may "locate" 
a claim thereto by marking the limits of his claim on 

15. Sparrow v. Strong, 3 Wall. on the subject are to be found 
(U. S.) 97, 18 L. Ed. 49; 1 Bar- in Rev. St. §§ 231S, 2352. 
ringer & Adams, Mines & Min- 17. Mr. Justice Field in United 
ing, 196. States v. Iron Silver Min. Co., 128 

16. The United States statutes U. S. 673, 32 L. Ed. 571. 



<§> 424] Teansfer by Government. 1557 

the ground, and in some states, by local requirements, 
by posting notice of the claim, and recording a certifi- 
cate of the location.^^ The extent of the claim is, in 
the c-ase of a lode or vein, limited by the United States 
statute to fifteen hundred feet in the direction in which 
the lode or vein runs, and three hundred feet on each 
side of the vein ; the boundaries running in the direction 
of the vein being known as "side" lines, and those run- 
ning across the vein as "end" lines. The locator is 
entitled to any ore within the space marked by these 
surface lines extended downward vertically, and may 
follow the vein across his side lines, even though, in 
so doing, he takes ore from beneath the surface claim 
of another, but he cannot follow the vein across his end 
lines. 

A placer claim or location is limited to one hundred 
and sixty acres in case the location is made by an asso- 
ciation of not less than eight bona fide locators, and to 
twenty acres in the case of a location by an individual. 

In order that one who has located a claim may con- 
tinue to hold it, he must do work or make improvements 
thereon to the value of at least one hundred dollars in 
each year, and, in case of his failure so to do, the claim 
is forfeited, and open to location by another person.'" 

§ 424. Grants by the states. Of tlie lands witliin 
the original thirteen colonies, the larger part had, at 
the time of the American Revolution, been granted to 
individuals or to associations, to hold in private owner- 
ship, and their rights, except in so far as the lands were 
confiscated for disloyalty, were not affected by the 
transfer of the sovereignty to the state. Those lands, 
however, which had not been granted away by the 
crown^ passed to the respective state governments as 
successors to the crown, and as representatives of the 

18. Barringer & AdamH, Mines ringer & Adams, Mines & Min- 
& Mining, c. 7. ing c. 9. 

19. Rev. St. U. S. § 2324; Bar- 



1558 Eeal Pbopebty. [<^ 424 

public. Such lands, the title to which was thus vested 
ill any of the original states, have been disposed of 
either by special legislative grants, or in accordance 
with a regular statutory system, established for the 
purpose, providing for their survey and sale to persons 
making formal application to the state authorities. 

The territory ceded by certain states to the general 
government was, to some extent, incumbered by grants 
previously made to indniduals by the ceding state, and 
these grants were usually, by the agreement for cession, 
recognized by the United States. Of the lands of which 
the title thus became vested in the states, the most im- 
portant were those under tidal and navigable waters, 
over which the state governments have always exercised 
control, and which they have, as a general rule, not 
granted away to individuals, the policy of the states, 
however, differing among themselves in this regard.^" 

Within the territory ceded to the United States by 
foreign governments, the states formed therefrom have 
no rights to vacant lands except as these may have been 
granted to them by the United States government. 
Such grants have, however, as above stated, been made 
to a very considerable extent, and the lands so granted 
to the states they have disposed of to individuals and 
corporations in various ways. 

The land under navigable waters within the limits 
of the territory ceded to the United States, either by 
one of the states or by a foreign country, passed to the 
United States for the benefit of the whole people, and 
in trust for the several states to be ultimately created 
out of such territory, and, upon the admission of any 
part of such territory as a state, such lands pass ipso 
facto to the state government, subject, however, to any 
grants of rights therein which may have been made for 
appropriate purposes by the United States government 

20. Martin v. WaddeU's Lessee, 38 L. Ed. 331. 
16 Pet. (U. S.) 367, 10 L. Ed. 997; See ante, §§ 300, 301. 
Shiveley v. Bowlby, 152 U. S. 1, 



§ 424] Transfer by Government. 1559 

while holding the country as a territory. Consequently, 
the new states admitted into the Union since the adop- 
tion of the constitution have the same rights as the 
original states in the tide waters, and in the lands under 
them, within their respective jurisdictions, and they may 
accordingly grant rights therein to individuals, as it 
may seem most expedient, subject only to the paramount 
rights of navigation and commerce.^^ 

The vacant lands which belonged to the state" of 
Texas, lying within its limits, never became part of the 
public domain of the United States, there being an 
express provision to that effect in the resolutions passed 
by congress for its admission as a state.-^ These lands 
have been gradually disposed of, usually by locations 
under ''land certificates," these certificates having been 
issued for various purposes, as to encourage settlement, 
to reward participants in the War of Independence, or 
their heirs, and to promote the construction of rail- 
roads.^^ 

The systems and regulations adopted by the various 
states in disposing of their public lands have been of 
the most diverse character. Usually, however, a war- 
rant is issued, either to one entitled as a beneficiary by 
some legislative act, or in consideration of the payment 
of a sum fixed by law, this warrant authorizing him to 
"locate" or "enter" a certain number of acres in the 
public domain. The holder of the warrant then selects 
his land, and files witli a desiunatod official a description 
of the land, this being kno%vn as the "entry." The 
lan^ so applied for is then usually surveyed by the 
]mblic surveyoi', and, after such survey, and his com- 
pliance witli all the other requirements of the statute, 
the applicant is entitled to a "patent" or grant from 
the state.'-^"* 

21. Shiveley v. Bowlby, 152 U. Texas lands is clearly stated in 
S. 1, :',8 L. Ed. 331. 1 Dembitz, Land Titles, 5G1 et seq. 

22. 5 U. S. Stat. 797. 24. See 2 Minor. Institutes. 

23. The mode of dispo.sul of 898; 1 Dembitz, Land Titles, 500; 



1560 Keal Propebty. [§ 425 

§ 425. Spanish and Mexican Grants. Witliin the 
territory ceded to the United States by France, Spain, 
and Mexico, there existed, at the time of the cession, 
private rights based upon grants previously made by 
the nation having dominion therein, and tliese grants 
the United States government was, either by express 
stipulation in the treaty to that effect, or by provisions 
preserving rights of property, required to recognize. 

Though the Louisiana territory was purchased from 
France, most of the grants made therein before its ces- 
sion to the United States' were made by the Spanish, and 
not by the French, government, the territory having 
passed from the former to the latter but a short time 
previously. The grants made within the limits of the 
Florida purchase previous to the treaty of cession were 
expressly recognized in that treaty. 

Before the cession of territory by Mexico to the 
United States, numerous grants had been made by 
that government from the time of its acquisition of in- 
dependence from Spain, early in the nineteenth century. 
Grants made before that period w^ere by the Spanish 
crowai, acting through the governor or viceroy. 

In the performance of its treaty obligations to recog- 
nize these prior existing grants of land in the ceded 
territory, this government has adopted the policy of 
requiring all persons claiming under grants made 
previous to the particular cession in question to submit 
their claims to examination either by commissioners 
named for the purpose, or by the federal courts, and 
the claims thus submitted have been the subject of many 
adjudications, frequently of an adverse character. 

Lands comprised within the limits of the present 
state of Texas have been, iii succession, the subject 
of grant by the Spanish government, the Mexican 
government, the Mexican state of Coahuila and Texas, 
the republic of Texas, and the present state of Texas.^^ 

23 Am, & Eng. Encyc. Law (1st 25. See Republic of Texas v. 

Ed.) 53 et seq. Thorn, 3 Tex. 505; Norton v. 



§ 426] Transfer by Government. 1561 

Grants made by the previous sovereignties have always 
been recognized by the present state of Texas. 

§ 426. Patents. A patent is a document issued 
by the government to one to whom it has. transferred or 
agreed to transfer land, in order to vest in the trans- 
feree the complete legal title, or to furnish evidence of 
the transfer. Patents are regularly issued by the 
United States government, and also by the state govern- 
ments, to persons who have, by the proper proceedings, 
established their right to the ownership of land previ- 
ously belonging to the United States or the state. The 
patent is, in form, a conveyance of the land, and must, 
when issued by the United States, be signed in the name 
of the president, and sealed with the seal of the general 
land office, and countersigned by the recorder.-*^ A 
state patent must usually be signed by the governor, 
and sealed with the state seal.-'^ 

A patent is necessary to pass a perfect title to 
public land in all cases except when the legislative 
branch of the government has made a grant taking- 
effect in praesentiP Consequently, when no such pre- 
vious grant has been made, the patent constitutes, and 
is necessary for, the transfer of the legal title.-^ When, 
on the other hand, there has been a previous grant 
taking effect in praesenti, the purpose of the issue of 
the patent is not to transfer the title, but to furnish 
evidence of the transfer, or to show compliance with 

Mitchell, 13 Tex. 51; Jones v. ter 'v. Ruddy, 166 U. S. 495, 41 

Muisbach, 26 Tex. 237. L. Ed. 1091. 

26. McGarrahan v. New Idria 29. McGarrahan v. New Idria 
Min. Co., 96 U. S. 316, 24 L. Ed. Min. Co., 96 U. S. 316, 24 L. Ed. 
630. See Rev. St. U. S. § 450. 630; Langdon v. Sherwood, 124 

27. See State v. Morgan, 52 u. S. 74, 31 L. Ed. 344; City of 
Ark. 150, 12 S. W. 243; Exum v. Brownsville v. Basse, 36 Tex. 500; 
Brister, 35 Miss. 391; Hulick v. Roads v. Symmes, 1 Ohio, 281, 
Scovil, 9 111. 159; Jarrett v. 13 Am. Dec. 621; Carter v. Ruddy, 
Stevens, 36 W. Va. 445, 15 S. E. Kit; u. S. 495, 41 L. Ed. 1091; 
445. Wood V. Plttman, 113 Ala. 212, 

28. Wilcox V. Jackson, 13 Pet. 20 So. 972. 
(U. S.) 498, 10 L. Ed. 264; Car- 



1562 Real Pbopeety. [§ 426 

the conditions thereof, obviating, in any legal contro- 
versy, the necessity of other proof of title.^° 

Even when there has been no legislative grant of 
the land, the government, upon the payment of the pur- 
chase price of land by an individual, and other com- 
pliance with the statutory requirements, thereafter 
holds the legal title, as any other vendor of land who 
has received the purchase money, in trust for the ven- 
dee.^ ^ But this mere equitable title will not support an 
action of ejectment at common law, and for that puriDoso 
the legal title must be acquired by the issue of a 
patent.^2 In many of the states, however, it is pro- 
vided by statute that certificates issued b}^ the United 
States land office, showing the making of final proof and 
pajanent, and so entitling the holder to a patent, shall 
be prima facie, evidence of title sufficient to support an 
action of ejectment.^^ But a distinction is made in this 
respect between receipts issued by the land office after 
final proof, and receipts issued merely to show that an 
application or ''filing" has been made, and the latter 
will not, even under these statutes, support ejectment,^* 
When there has been a grant taking effect in praesenti, 

30. Morrow v. Whitney, 95 U. v. Sherwood, 124 U. S. 74, 41 L. 
S. 551, 24 L. Ed. 456; Wright v. Ed. 1091; Seward's Lessee v. 
Roseberry, 121 U. S. 488, 30 L. Hicks, 1 Har. & McH. (Md.) 22. 
Ed. 1039; Deseret Salt Co. v. Tar- 33. See Balsz v. Liebenow 
pey, 142 U. S. 241, 35 L. Ed. 999; (Ariz.) 36 Pac. 209; Surginer v. 
Kernan v. Griffith, 27 Cal. 89; Paddock, 31 Ark. 528; Case v. 
Lee V. Summers, 2 Ore. 267. Edgeworth, 87 Ala. 203; Whit- 

31. Carroll v. Safford, 3 How. taker v. Pendola, 78 Cal. 296. 20 
(U. S.) 441, 11 L. Ed. 671; Pac. 680; Davis v. Freeland's 
Witherspoon v. Duncan, 4 Wall. Lessee, 32 Miss. 645; Pierce v. 
(U. S.) 210. 18 L. Ed. 339; Frace, 2 Wash. St. 81, 26 Pac. 
Hussman v. Durham, 165 U. S. 192, 807; McLane v. Bovee, 35 
144, 41 L. Ed. 664; Brill v. Stiles, Wis. 27. 

35 HI. 305, 85 Am. Dec. 364; 34. Balsz v. Liebenow (Ariz.) 

Arnold v. Grimes, 2 Iowa, 1. 36 Pac. 209; Hemphill v. Davis, 38 

32. Hooper v. Scheimer, 23 Cal. 577; Dale v. Hunneman, 12 
How. (U. S.) 235, 16 L. Ed. 452; Neb. 221, 10 N. W. 711; Adams v. 
Gibson v. Chouteau, 13 Wall. (U. Couch, 1 Okl. 17. 

S.) 92, 20 L. Ed. 534; Langdon 



§ 426] 



Transfer by Government. 



1563 



the grantee may, even without the aid of any statute, 
bring ejectment, as having the legal title, though a 
patent has not been issued to him.^^ 

A patent is, as evidence of title, conclusive in a 
court of law as against collateral attack, unless it is 
invalid on its face for insufficiency of language or 
execution, or unless it is void for want of power to issue 
it, as when the land had been previously granted, or 
was reserved from sale.^'^' In equity, however, a patent, 
valid on its face, can, as against others than bona fide 
purchasers of the land for value, be attacked, for fraud 
in its procurement or mistake in its issuance, either by 
the government or by a person otherwise entitled to 
the land;''' and if the patent has been issued to one 
other than tlie person entitled thereto, he may procure 
a decree establishing a constructive trust in his favor, 
and requiring the patentee to make a convevanee to 



35. Deseret Salt Co. v. Tarpey, 
142 U. S. 241, 35 L. Ed. 999; 
Nothern Pac. R. Co. v. Cannon 
fC. C.) 46 Fed. 224; Southern 
Pac. Co. V. Burr, 86 Gal. 279, 24 
Pac. 1032; Northern Pac. R. Co. 
V. Majors, 5 Mont. 111. 2 Pac. 
322. 

36. Field v. Seahury, 19 How. 
(U. S.) 323. 15 L. Ed. 650; Sher- 
man V. Buick, 93 U. S. 209. 23 L. 
Ed. 849: Steel v. St. Louis Smelt- 
ing & Refining Co.. 106 U. S. 447, 
27 L. Ed. 226; Wright v. Rose- 
berry, 121 U. S. 488, 30 L. Ed. 
1039; Davis' Adm'r v. Weibbold, 
139 U. S. 507, 35 L. Ed. 2:i8; 
State V. Morgan, 52 Ark. 150, 12 
S. W. 243; Moore v. Wilkinson, 13 
Cal. 488; Laneenoiir v. Shanklin, 
57 Cal. 70: Bledsoe's Devisees v. 
Wells, 4 Bibb. (Ky.) 329; State 
v. Sioux City & P. R. Co., 7 Nel'. 
357; Jackson v. Hart, 12 .Johns. 



(N. Y.) 77, 7 Am. Dec. 280; Web- 
ster V. Clear, 49 Ohio St. 392, 31 
N. E. 744; Norvell v. Camm, 6 
Munf. (Va.) 233. 8 Am. Dec. 742; 
Jarrett v. Stevens, 36 W. Va. 445, 
15 S. E. 177. 

37. St. Louis Smelting & Re- 
fining Co. v. Kemp, 104 U. S. 636, 
26 L. Ed. 875; Sparks v. Pierce, 
115 U. S. 408. 29 L. Ed. 428; 
Sanford v. Sanford, 139 U. S. 642, 
35 L. Ed. 290; United States v. 
San Jacinto Tin Co., 125 U. S. 
273, 31 L. Ed. 747; United States 
V. Missouri, K. & T. Ry. Co., 141 
U. S. 358. 35 L. Ed. 766: United 
States V. Marshall Silver Min. Co., 
129 U. S. 579, 32 L. Ed. 734; Colo- 
rado Coal & Iron Co. v. United 
States, 123 U. S. 307, 31 L. Ed. 
182; Jackson v. Lawton, 10 Johns. 
(N. Y.) 23, 6 Am. Dec. 311; Ro- 
niain v. Lewis, 39 Mich. 233,; 
Norvell v. Camm, 6 Munf. (Va.) 



1564 



Real Property. 



[§ 426 



him."^ The issuance of a patent, however, raises the 
presumption that it was validly issued, and one seeking 
to set it aside must sustain his averments in that regard 
by clear proof.^'' 

A patent, when issued, dates back, as against in- 
tervening claimants, to the time when the equitable 
title vested in the patentee by payments of the purchase 
price, or otherwise.^® 



238. 8 Am. Dec. 742; State v. 
Bachelder, 5 Minn. 223 Gil. 178), 
80 Am. Dec. 410. 

38. Stark V. Starrs, 6 WaU. (U. 
S.) 412, 18 L. Ed. 928; Widdi- 
combe v. Childers, 124 U. S. 400, 
31 L. Ed. 427; Cornelius v. Kes- 
sel, 128 U. S. 456, 32 L. Ed. 482: 
Bernier v. Bernier, 147 U. S. 242, 
37 L. Ed. 152. 

39. Maxwell Land-Grant Case, 
121 U. S. 325, 30 L. Ed. 949; 



Schnee v. Schnee, 23 Wis. 377, 99 
Am. Dec. 183; City of Mobile v. 
Eslava, 9 Port. (Ala.) 577; 33 
Am. Dec. 325. 

40. Gibson v. Chouteau, 13 
Wall. (U. S.) 92, 20 L. Ed. 5-34; 
Hussman v. Durham, 165 IT. S. 
144, 41 L. Ed. 664; Waters v. Bush, 
42 Iowa, 255; Reynolds v. Ply- 
mouth County, 55 Iowa, 90; 
Waterman v. Smith, 13 Gal. 419. 
See post, § 377, note 76. 



CHAPTER XIX. 

VOLUNI'ARY TRANSFER INTER VIVOS. 

I. Classes of Conveyances. 

I 427. Conveyances at common law. 

428. Conveyances operating under the Statute of Uses. 

429. Conveyances employed in the United States. 

430. Quitclaim deeds. 

431. Surrender. 

432. Conveyances failing to take effect in the manner intended. 

II. FoBM AND Essentials of a Conveyance. 

433. General considerations. 

434. Designation of parties. 

435. Words of conveyance. 

436. Exceptions and reservations. 

437. Rules of construction. 

438. Consideration. 

439. Reality of consent. 

440. Effect of alterations. 

III. Description of the Land. 

§ 441. General considerations. 

442. Description by government survey. 

443. Reference to plat. 

444. Monuments, courses and distances. 

445. Boundaries on water. 

446. Boundaries on ways. 

447. Sufficiency of description. 

448. Appurtenances. 

IV. Covenants ior Title. 

§ 449. General considerations. 

450. Covenant for seisin. 

451. Covenant for right to convey. 

452. Covenant against incumbrances. 

453. Covenants for quiet enjoyment and of warranty. 

454. Covenant for further assurance. 

455. The measure of damages. 

456. Covenants running with the land. 

V. ExEcuTio.N OF The Conveyance. 
§ 457. Signing. 

(1565) 

2 R. P.— 24 ' 



1566 Real Fkoperty. [§ 427 

458. Sealing. 

459. Witnesses. 

460. Acknowledgment. 

461. Delivery. 

462. Conditional delivery. 

463. Acceptance. 

464. Execution by agent. 

465. Effect of execution — Return or cancellation. 

§ 427. Conveyances at common law — Feoffment. 

The transfer of land by ''livery of seisin," which has 
already been briefly described/ was ordinarily known 
as a "feoffment," and the terms were, it seems, used 
interchangeably.- The person making the transfer was 
known as the "feoffor," and the transferee as the 
feoffee." The livery was ordinarily accompanied by 
a "charter of feoffment," declaring the limitations of 
the estate or estates vested in the feoffee, but the livery 
of seisin was alone necessary until the passage of the 
Statute of Frauds, which in effect declared that all 
estates created by livery of seisin only, or by parol, 
and not put in writing and signed by the parties so 
making and creating the same, or their agents, should 
be estates at will merely.^ This mode of transfer was 
available only in the case of estates accompanied by sei- 
sin, that is, estates of freehold in possession, and was 
not available for the transfer of rights in incorporeal 
things.* 

Since a feoffment operated on the possession alone, 
any person having possession of land, even though, as 
in the case of a tenant for years, not legally seised, 
could, by feoffment to a stranger, create in the latter 
an estate of any quantum; and so one having seisin 
as of an estate for life could create in another a greater 
estate. Since the effect of such a transfer of seisin was 

1. Ante, § 14. Challis, Real Prop. 370. ; 

2. Challis, Real Prop. (.3rd Ed.) 4. Sheppard's Touchstone, 228; 
362. Williams, Real Prop. 31; 2 

3. 29 Car. II. c. 3, § 1. See Co. Blackst. Comm. 314. See ante, 
Litt. 48; 2 Blackst. Comm. 313; § 16. 



<^ 427] Transfer Inter Vivos. 1567 

to operate wrongfully upon the interest of tlie owner 
of the reversion or remainder, it was termed a "tort- 
ious ' ' conveyance.^ 

Transfer by feoffment is now in effect obsolete, 
though occasionally the theory of such a transfer may 
be resorted to for the purpose of upholding a con- 
veyance otherwise invalid or ineffective to carry out 
the evident purpose of the parties.*' In many states 
the statutes expressly dispense with the necessity of 
livery of seisin for the conveyance of real property. ''^ 

Fines and recoveries. Fines and recoveries 

were collusive actions brought for the purpose of ef- 
fecting a transfer of interests in land not otherwise 
transferable. They have been abolished by statute in 
England, and in no state of this country are they, it is 
believed, in practical use.^ They were for many years 
utilized for the purpose of barring estates tail, and 
thereby . evading the statute De Bonis Conditionalibus,^ 
but they were appropriate and necessary for other 
purposes, the most important of which was the transfer ■ 
of land by a married woman, she not being competent 
to make an ordinary conveyance. 

Grant. A grant was, at common law, made use 

of for the transfer of such interests in land as, from 
their nature, were incapable of transfer by feoffment, 
that is, of which there tonld be no seisin, including all 
rights in another's land, or other incorporeal things 
real, and also estates in remainder or reversion upon a 
free hold estate.^^ A grant always, involved a "deed," 

5. Co. Litt. § 611, and Butler's St. 460. 

note; Co. Litt. 251a, 3.30b; Challis, 7. 1 Stimson's Am. St. Law, § 

Real Prop. 371. 1470. 

6. Witham v. Brooner, 63 111. 8. These proceedings are ex- 
.■'.44; Ware v. Richardson, '.', Md. plained in 2 Blackst. Comm. 348. 
505; Rogers v. Sisters of Charity 9. Ante, § 28. 

97 Md. 556; Hunt V. Hunt, 14 10. Co. Litt. 9b, 49a, 172a; 2 

Pick. (Mass.) 374; Carr v. Rich- Blackst. Comm. 317; 2 Sanders, 

ardson, 157 Mass. 576, 32 N. E. Uses & Trusts (5th Ed.) 29. 

958; Eckman v. Eckman, 68 Pa. See ante, § 16. 



1568 Real Propeety. [^ 427 

that is, a writing under seal, since no other form of 
writing had, at common law, any legal effect. ^^ 

At conmion law the lord's right to the services of 
the tenant, the ''seignory," could not be transferred to 
another without "attornment" by the tenant, that is, 
acceptance of the new lord. The same principle applied 
in the case of the grant of a reversion, it not being 
valid unless the tenant attorned to the grantee.^- The 
necessity of attornment was, as before stated, abolished 
in England by 4 Anno, c. 16 § 9, and is no longer recog- 
nized in this country. ^^ 

Lease. A lease is a conveyance of an estate 

for life, for years, or at will, by one who has a greater 
estate. At common law, if the estate conveyed was for 
life, livery of seisin was required,^^ but if for years 
or at will merely, an oral lease without livery was 
sufficient. ^^ By the Statute of Frauds, a writing was 
rendered necessary for the creation of an estate for 
years, excepting certain leases not exceeding three 
years from the making thereof. ^"^ But, even at common 
law, a lease for years of an incorporeal thing was in- 
valid unless in writing and under seal, since such a 
thing lay in grant for all purposes, and no other method 
of transfer thereof was recognized.^^ The form and re 
quisites of a lease have been previously considered, in 
connection with the subject of estates for years. ^'^^ 

Release. A conveyance by release is a con- 
veyance of an estate or interest in land to one who has 
possession of the land or a vested estate therein. It 

11. Co. Litt. 172a; Slieppard's 2 Piatt, Leases, 1. 
Touchstone, 229; 1 Hayes, Convey- 16. 29 Car. II. c. 3, §"§ 1, 2 
ancing (5th Ed.) 25; 2 Sanders, 17. Co. Litt. 85a; Tottel v 
Uses & Trusts (5th Ed.) 41. Howell, Noy, 54; 14 Vin. Abr. tit 

12. Litt .§§ 551, 567, 568; Co. "Grant" (Ga.); Sheppard's Touch 
Litt. 309a, Butler's note. stone, 26T; Somerset v. Fogwell 

13. See ante, §§ 53 (a). 5 Barn. & C. 875; Bird v. Hig 

14. 2 Blackst. Comm. 318. ginson, 2 Adol. & E. 696. 

15. Sheppard's Touchstone, 267; 17a. Ante, i 42. 



§ 427] Tbansfer Intee Vivos. 1569 

was utilized, at. common law, in cases in which the per- 
son to whom the conveyance was to be made was 
already in jDossession, so that no livery of seisin could 
be given unless he should first quit possession, which 
w^ould have involved an idle multiplication of cere- 
monies.^^ A release may be made to the tenant of a 
life estate by the owner of the reversion or remainder 
thereon, whether the life estate be one created by act 
of the parties, ^^ or one created by act of the law, such as 
as estate of dower or curtesy,^*^ the life estate being en- 
larged by the release to a fee simple or fee tail. A 
release may also be made by the owner of the reversion 
to the tenant of an estate for years or at will,-^ but 
not to a tenant at sufferance.-- Eeleases thus made by 
a reversioner or remainderman to the particular tenants 
are said by the common law writers to enure by way 
of enlargement of the estate {enlarger V estate). ^^ A 
mere interesse termini, that is, the right of a lessee who 
has not yet entered under his lease, does not entitle him 
to take a release by way of enlargement,-^ it being 
necessaiy that the lessee be in actual possession, or in 
legal possession by force of the Statute of Uses.^^ 
A release, in order to enlarge the particular estate to 
one of inheritance, must, at common law, contain the 
word "heirs," as in the case of a conveyance between 
strangers.^" 

A release mav also be made, not by way of en- 
largement of an estate, but by way of passing an estate 
{mitter Vest ate), as when one joint tenant or coparcener 
releases his estate to his cotenant. In this case, words 
of inheritance have never been required, since the per- 
son to whom the release is made is regarded as already 
seised of the freehold, and the release is merely a 

18. 2 Pollock & Maitland, Hist. 22. Co. Litt. 270b. 

Eng. Law. 90. 23. Litt. § 465; Challis, Real 

19. Co. Litt. 273b. Prop. 409. 

20. 2 Sanders, Uses & Trusts 24. Litt. § 459; Co. Litt. 270a. 
(5th Ed.) 73. 25. See ante, § 100. 

21. Litt §§ 460, 46.-.. 20. Litt. § 465; Co. Litt. 273b. 



1570 Eeal Pkopekty. [§ 427 

discharge from the claim of another seised under the 
same title.-' A release was never regarded as suf- 
ficient to pass the interest of one tenant in common to 
another, since they are regarded as having distinct 
freeholds.^* 

A third mode of operation of a release is by way 
of "extinguishment" of an interest in another's land, 
as when the owner of a rent, a right of profit, or an 
easement, releases his rights to the owner of the 
land subject thereto.-^ The only other modes of opera- 
tion of release at common law occurred in the case of 
a release, by one disseised, of all his right or claim in 
favor of the disseisor, or of his heir or feoffee, this 
being known as a "release by way of passing the 
right" {mitter le droit). ^^ 

A release must, at common law, be by deed, that 
is, by writing under seal.^^ 

Strictly speaking, at the present day, as at com- 
mon law, a release cannot be made to one having 
neither possession of the land nor a vested estate there- 
in,^^ but a conveyance purporting to be a release will 
almost invariably be upheld as a conveyance by bar- 
gain and sale or grant.^^ 

Assignment and surrender. The term ' ' assign- 



ment" in connection with the law of land, is commonly 

applied to the transfer of a chattel interest.^^ At com* 

27. Co. Litt. 273b, and Butler's M. (Miss.) 130. 

note. 33. Baker v. Whiting, 3 Sumn. 

28. 4 Cruise, Dig. tit. 32, c 6, § 475, Fed. Cas. No. 787; Conn's 
25; 2 Preston, Abstracts, 77. Heirs v. Manifee, 2 A. K. Marsh 

29. Litt. § 480; Co. Litt. 280a. (Ky.) 396, 12 Am. Dec. 417; Pray 

30. Litt. § 466; 4 Cruise, Dig. v. Pierce, 7 Mass. 381, 5 Am. Dec. 
tit. 32, c. 6, § 26. 59; Havens v. Sea Shore Land 

31. Co. Litt. 264b; 2 PoUock & Co., 47 N. J. Eq. 365, 20 Atl. 497; 
Maitland, Hist. Eng. Law, 91. Lynch v. Livingston, 6 N. Y. 422; 

32. Runyon v. Smith, (C. C.) Hall's Lessee v. Ashby, 9 Ohio 

18 Fed. 579; Branham v. City of 96, 34 Am. Dec. 424. See Ely v. 

San Jose, 24 Cal. 585; Warren v. Stannard, 44 Conn. 528. 

Childs, 11 Ma^. 222. Compare 34. 2 Blackst. Comm. 326; 4 

Sessions v. Reynolds, 7 Smedes & Cruise, Dig. tit. 32, c. 6 § 15. 



§ 427] Teansfee Inter Vivos. 1571 

moil law, an assignment of such an interest in land, as 
distinguished from an interest in an incorporeal thing, 
might be made without writing,"'' but by the Statute 
of Frauds^^' a writing signed by the assignor, or by his 
agent authorized in writing, is required. The question 
of the right of a tenant to make an assignment of 
his leasehold interest, and that of when a transfer by 
him constitutes an assigTiment and when a sublease, 
have been previously considered.'^' 

That class of conveyance known as surrender, in- 
volving the transfer of a particular estate to the re- 
versioner or remainderman, though recognized at 
common law, is frequently the subject of adjudication at 
the present day, and will be most conveniently dis- 
cussed in a subsequent section apart from the other 
common law conveyances.^* 

Exchange. An excliange is a mutual convey- 
ance of equal. interests in distinct pieces of land. At 
common law, if both pieces of land lay in the same 
county, the exchange might be oral, while, if situated 
in different counties, a deed was required.'*'^ But, by 
the Statute of Frauds, a writing is necessary on the 
exchange of freeholds or of terms for years other than 
certain terms for three years or less.^^^ No livery of 
seisin was necessary at common law, but each party 
to the exchange was required to enter while both were 
alive.^^ 

A common-law exchange could not be effected unless 
the estates of the respective parties were of the same 
legal quantum; — that is, an estate in fee simple could be 

35.- 4 Cruise, Dig. tit. 32, c. 6, 39. Litt. §§ 62, 63; Co. Litt. 

§ 20. .50a. 

36. 29 Car. 2, c. 3, S 3. As to 40. 29 Car. II. c. 3, §§ 1-3; 
the various state statutes bear- Co. Litt. 50a, Butler's note. See 
ing on the form of an assignment. Dowling v. McKenney, 124 Mass. 
see 1 Tiffany, Landlord & Ten. § 478; Cass v. Thompson, 1 N. H. 
154. 65, 8 Am. Dec. 36; Rice v. Peet, 

37. Ante, §§ 54, 55. 15 Johns. (N. Y.) 503. 

38. Post, § 431. 41. Co. Litt. 50b. 



1572 Real Property. [§ 428 

exchanged only for an estate of the same character, 
an estate for twenty years only for an estate for 
twenty years, and so on.^^ xiie word ''exchange" was 
required to be used, and no other expression would 
supply its place.*^ A common-law exchange, answering 
to the foregoing requirements, probably never occurs 
in modern practice. 

§ 428. Conveyances operating under the Statute of 
Uses. The Statute of Uses, as has been previously ex- 
])lained, gave rise to two entirely new methods of trans- 
ferring legal estates in land, to-wit, the conveyance by 
''bargain and sale," and that by "covenant to stand 
seised;" the former being based upon a use raised in 
the intended transferee by the payment of a pecuniary 
consideration, usually merely nominal, and the latter 
being based on the declaration of a use in favor of one 
related by blood or marriage, the statute executing the 
use in both cases.^* One effect of this statute was to 
enable the owner of land, by a mere contract of sale 
and the payment to him of a pecuniary consideration, 
to vest the legal title in another, without any writing or 
ceremony whatever, and with absolute secrecy, and 
to prevent such secret conveyances by bargain and sale 
a statute was passed in the same year, called the 
"Statute of Enrollments,"^^ requiring all bargains and 
sales of freehold interests, in order to be valid, to be 
made by deed, that is, writing under seal, enrolled 
in couii; or with certain officials. The statute did not 
apply to conveyances by covenant to stand seised. 

42. Litt. §§ 64, 65; Co. Litt. 36; Dean v. Shelly, 57 Pa. St. 
51a; 2 Blackst. Comm. 323: Anony- 426, 98 Am. Dec. 235; Windsor 
mous, 3 Salk. 157; Windsor v. v. Collinson, 32 Or. 297. 
Collinson, 32 Ore. 297; Long v. 44. See ante, § 100. 

Fuller, 21 Wis. 121. 45. 27 Hen. VIIL c. 16 (A. D. 

43. Co. Litt. 51b; 2 Blackst. 1535). See 2 Sanders, Uses & 
Comm. 323; Eton College v. Win- Trusts (5th Ed.) 64; Digby, Hist. 
Chester, 3 Wils. 468; Cass v. Law Real Prop. (4th Ed.) 364. 
Thompson, 1 N. H. 65, 8 Am. Dec. 



§ 428] Transfer Inter Vivos. 1573 

This statute is probably not in force in any state.^^ 
Clandestine conveyances by bargain and sale being thus 
prevented by the Statute of Enrollments, conveyancers, 
soon after the statute, devised the conveyance by 
'* lease and release," taldng advantage of the fact that 
the statute required the enrollment of bargains and 
sales of ' 'freehold" interests only. This conveyance, 
as before explained, consisted of a bargain and sale of 
a leasehold interest to the intended grantee, which 
vested him with the legal possession, and this was 
followed by a deed of release of the reversion remaining 
in the former owner.^" 

A conveyance by covenant to stand seised is 
usually said to be based upon the consideration of 
blood or marriage.'*''''^ But in such case the word con- 
sideration is used, not in its technical sense of the 
equivalent for a promise, but in the sense of motive or 
inducement for the agreement to stand seised. "The 
exception in favor of those related by blood or marriage 
had in truth nothing to do with the doctrine of con- 
sideration and was established in the interest of the 

46. See Givan v. Tout, 7 Blackf. Gray, Peripetuities, § 57. The 
(Ind.) 210; Marshall v. Fisk, 6 same view is adopted in Jackson 
Mass. 24, 4 Am. Dec. 76; Chandler v. Dunsbaugh, 1 Johns. Gas. 92. It 
V. Chandler, 55 Cal. 267; Givan v. is asserted in support of this 
Doe, 7 Blackf. (Ind.) 210; opinion view that previous to the stat- 
of Justices, 3 Binn. (Pa.) 595. ute of enrollments a covenant to 
Compare Underwood v. Campbell, stand seised could be supported 
14 N. H. 393. by a pecuniary consideration, and 

47. 1 Hayes, Conveyancing, that after that statute the con- 
(5th Ed.) 76. See ante. § 100. trary view was adopted merely to 

47a. That a consideration of prevent the statute being nulli- 

blood or marriage is necessary, fied by regarding conveyances 

see post, this section, notes 49- which were in their nature deeds 

51, 63. In Massachusetts the view of bargain and sale as covenants 

has been asserted that a covenant to stand seised. But covenants 

to stand seised may be supported to stand seised apipear not to 

by a pecuniary consideration. have been recognized previous to 

Trafton v. Hawes, 102 Mass. 533, the Statute of Enrollments. Pro- 

3 Am. Rep. 494; Ricker v. Brown, fessor Ames says that Sharington 

183 Mass. 424, 67 N. E. 3.53. See v. Strotton, Plowd. 298 (anno 



].574 Real Property. [§ 428 

great English families. "^^ What degree of relationship 
is sufficient to support a conveyance of this character 
appears to have been but little discussed, and no 
restriction in this regard has been asserted, a covenant 
to stand seised in favor of a nephew or cousin being- 
regarded as valid,^^ as is no doubt one in favor of a 
grandchild.^*^ As regards connection by marriage, it 
would seem to be necessary that the beneficiary be the 
wife, or perhaps the husband, of one wdio is within the 
necessary degree of blood relationship, so that such 
a conveyance by A to his daughter-in-law or to his 
cousin's wife would be valid, but not such a conveyance 
by one of the latter to A.^^ This is by reason of the 
fact that this form of conveyance was upheld merely 
to enable one to perpetuate and make provision for his 
or her own family, and while a conveyance to the wife 
of one's relative might conduce to this end, a con- 
veyance to a relative of one's wife could not so operate. 
The valuable consideration necessary to support a 
conveyance by bargain and sale is either money or 
money's worth.^- It involves ordinarily the idea of 
a benefit to the grantor, but presumably a mere detri- 
ment to the grantee would be sufficient for this pur- 
pose as it is to support an executory contract. A 
mere promise on the part of the grantee, as to pay 
money^^ or to support the grantor^* is sufficient, and a 

1565) "was the first case of this covenant to stand seised in favor 

kind." See 21 Harv. Law Rev. at of a son in law or daughter in 

p. 269, Lectures on Legal History. law is valid see also, Gale v. 

p. 241. Coburn, 18 Pick. (Mass.) 397; 

48. Prof. J. B. Ames in 21 Bell v. Scammon. 15 N. H. 381, 
Harv. Law Rev, at p. 269, Lee- 41 Am. Dec. 706; Contra, Corwin 
tures on Legal History, p. 241. v. Corwin, 9 Barb. 219 6 N. Y. 

49. Sugden's Gilbert on Uses, 342. 

93; Sheppard's Touchstone, 511. 52. 2 Preston, Conveyancing, 

50. See Hansom v. Buckner, 4 373; Jackson v. Pike, 9 Cow. (N. 
Dana (Ky.) 251; Stovall v. Bar- Y-.) 69; Redmond v. Cass, 226 111. 
nett, 4 Litt. (Ky.) 207. 120. 

51. See the full discussion by 53. 2 Sanders, Uses & Trusts 
White, J., in Thompson v. Thomp- (5th Ed.) 56. 

son, 17 Ohio St. 649. That a 



§ 429] Tbansfer Inter Vivos. 1575 

mere condition subsequent in the conveyance, calling 
for the performance of some act by the grantee, has 
apparently been so regarded,^^ as has a reservation 
of a rent, of either substantial or nominal value.^^ Mar- 
riage is also a valuable consideration, in the sense that 
a bargain and sale to one in consideration of his 
intended marriage with one of the grantor's family is 
valid.^^ 

§ 429. Conveyances employed in the United States. 
In most of the states of this country there are statutory 
provisions authorizing the transfer of land by simple 
forms of conveyance,^* which, in their operation, much 
resemble the common-law "grant," except that they 
are not confined to incorporeal things. The same pur- 
pose of simplification of conveyancing has in England 
been attained by a statute providing that all corporeal 
tenements and hereditaments shall, as regards the con- 
veyance of the immediate freehold thereof, be deemed 
to lie in grant, as well as in livery.^^ Conveyances b}' 
way of bargain and sale have, however, been in fre- 
quent use in this country,*"^ and, even in states where 
there are statutory provisions of the character referred 
to, the words "bargain and sell" are ordinarily used 
in a conveyance. In such states, in fact, it is difficult, 
and for most, if not all, purposes, unimportant, to say 

54. Young V. Ringo, 1 T. B. the thorough discussion of the 
Men. (Ky.) 30; Spalding v. Hal- local law of the different states 
lenbeck, 30 Barb. (N. Y.) 292. in this regard by Professor John 

55. Stonley y. Bracebridge, 1 R. Rood, in 4 Mich. Law Rev. 109. 
Leon. 6; Exum v. Canty, 34 Miss. 59. "Real-Property Act," St. 8 
533; Castleton v. Langdon, 19 Vt. & 9 Vict. c. 106, § 2 (A. D. 1845), 
210. 60. See Pascault V. Cochran (C. 

56. Barker v. Keate, 2 Mod. C.) 34 Fed. 358; Givan v. Tout, 7 
253. Black'f. (Ind.) 210; Nelson v. 

57. Sugden's Gilbert on Uses, Davis, 35 Ind. 474; Chiles v. Con- 
91; Arnold v. Estis, 92 N. C. 162; 'ey's Heirs, 2 Dana (Ky.) 21; 
Thompson v. Thompson, 17 Ohio Sanders v. Hartzog, 6 Rich. (S. C.) 
St. 649. '*'^^; Holland v. Rogers, 33 Ark. 

r.8. 1 Stimson's Am. St. Law, S ^51; Stewart v. Stewart. 171 Ala. 
1480-H82. And see particularly 485, 54 So. 604; Bronston's Adm'r 



1576 Reax, Property. [§ 430 

whether a particular conveyances operates by force of 
the Statute of Uses or under the local statute. In 
order, however, that a conveyance be regarded as taking 
effect by way of bargain and sale, it must, as was be- 
fore stated, be supported by a valuable consideration, 
either actual or expressed.^^ 

Conveyances by way of covenant to stand seised 
have been recognized in this country ,'^2 but, since a con- 
sideration of blood or marriage is necessary,^^ there is 
but little opportunity for their employment. Even when 
the proper consideration does exist, a conveyance in 
form under the local statute, or by way of bargain and 
sale, with a recital of a pecuniary consideration, would 
usually be employed. 

Conveyances by lease and release have never been 
employed to any extent in this country, since the 
Statute of Enrollments, which constituted the reason 
for their use in England, is not in force here. 

§ 430. Quitclaim deeds. There is, in this country, a 
well-recognized class of conveyances, known as **quit- 

V. Bronston's Heirs, 141 Ky. 639, (N. Y.) 85; Ward v. Wooten. 75 

133 S. W. 584. N. C. 413; Sprague v. Woods, 4 

61. Corwin v. Corwin, 6 N. Y. Watts & S. (Pa.) 192; Fisher v. 
342, 57 Am. Dec. 453; Wood v. Strickler, 10 Pa. St. 348, 51 Am. 
Chapin, 13 N. Y. 509, 67 Am. Dec. Dec. 488; Watson v. Watson, 24 
62; Lambert v. Smith, 9 Ore. 185; S. C. 228. 58 Am. Rep. 247; Barry 
Den d. Jackson v. Hampton, 30 v. Shelby, 4 Hayw. (Tenn.) 229. 
N. C. 457; Gault v. Hall, 26 Me. 63. Rollins v. Riley, 44 N. H. 
561; Boardman v. Dean, .^.4 Pa. 9; Jackson v. Caldwell, 1 Cow. (N. 
St. 252. Y.) 622; Gault v. Hall, 26 Me. 

That the recital of the consider- 561; Thompson v. Thompson, 17 

ations is conclusive for the pur- Ohio St. 649; Doe d. Cobb v. Hines, 

pose of supiporting the conveyance 44 N. C. 343. 59 Am. Dec. 559; 

as a bargain and sale, see post, § Eckman v. Eckman, 68 Pa. St. 

438, note 75. 460; 2 Sanders, Uses & Trusts 5th 

62. Murray v. Kerney, 115 Md. Ed. 98; Contra in Massachusetts. 
514, 38 L. R. A. (N. S.) 937, See ante, this section, note 47a. 
81 Atl. 6; Merrill v. Publishers' 64. See, as to the early use of 
Paper Co., 77 N. H. 285, 90 Atl. the word "quitclaim," 2 Pollock 
786; .Tackson v. Swart, 20 Johns. & Maitland, Hist. Eng. Law. 91. 



§ 430] Transfer Inter Vivos. 1577 

claim deeds," which are to some extent a development 
of the common-law release, and which have acquired 
their name from one of the words ordinaril}^ used in 
the latter instrument.^^ Such a conveyance purports 
merely to convey whatever title to the particular land 
the grantor may have, and its use excludes any implica- 
tion that he has a good title, or any title at all/'' 
Accordingly, as a general rule, it contains no covenants 
for title, and its employment is, in some states, re- 
garded as in itself notice to the purchaser of possible 
defects in the title, so that he cannot claim to occupy 
the position of a bona fide purchaser.*'^ Such a con- 
veyance, moreover, is not regarded as transferring an 
after acquired title on the principle of estoppel/'''' A 
quitclaim deed, how^ever, is sufficient in itself to pass 
the grantor's existing title to the same extent as a 
deed of grant or bargain and sale,^^ and its validity 
is not, like the common-law release, dependent upon the 
existence of an estate or interest in the grantee/^ The 
question w^hether a conveyance is a mere quitclaim is 
determined by a construction of the instrument as a 
whole, with reference to the circumstances under 

65. City & County of San Fran- Dutton, 79 111. 466; Callahan v. 
Cisco V. Lawton, 18 Cal. 465, 79 Davis, 90 Mo. 78, 2 S. W, 216; 
Am. Dec. 187; Kerr v. Freeman, Landes v. Brant, 10 How. (U. S.) 
33 Miss. 292; Emmel v. Headlee 372, 13 L. Ed. 460; French's 
(Mo.) 7 S. W. 22; Coe v. Persons Lessee v. Spencer, 21 How. (U. S.) 
Unknown. 43 Me. 432; Garrett v. 228, 16 L. Ed. 97. 
Christopher, 74 Tex. 4.'"j3, 15 Am. 68. Bradbury v. Davis, 5 Colo. 
St. Rep. 850, 12 S. W. 67. 265; Kyle v. Kavanaugh, 103 Mass. 

66. See j)OHt. S 5r.7(m). :;56; Grant v. Bennett, 96 111. 513; 

67. Post, § 545(b). Wilson v. Albert, 89 Mo. 537, 1 
Since a government patent, S. W. 20fi; Mclnerney v. Beck, 10 

when issued, relates back to the Wash. 515, 39 Pac. 130. So by 
date of the entry, it enures to the statute in some states. See Hoff- 
benefit of one to whom the man v. Harrington, 28 Mich. 90; 
patentee has, since the entry, con- Kerr v. Freeman, 33 Miss. 292. 
veyed the land, even though by a 69. Spaulding v. Bradley. 79 
"quitclaim" purporting to convey Cal. 449, 22 Pan. 47; Kerr v. Free- 
merely such title as he has. Crane man, 33 Miss. 292. 
v. Salmon, n Cal. 63; Welch v. 



1578 Real Property. [§ 431 

which it was given.'*' It may be said, however, that 
the cases do not appear to be entirely consistent as to 
the criteria controlling in the matter.'^ 

§ 431. Surrender. That character of conveyance 
known as ''surrender" was fully recognized at common 
law and might accordingly have been properly dis- 
cussed in the previous section dealing with conveyances 
at common law. In view however of the practical im- 
portance of the law of surrender it has appeared to 
be expedient to devote a separate section thereto. 

"Surrender" has been defined as a yielding up 
of an estate for life or years to him that hath an im- 
mediate estate in reversion or remainder, wherein the 
estate for life or years may drowTi by mutual agree- 
ment between them."'^^ Unfortunately, this technical 
meaning of the word, as referring to the transfer of 
an estate, has been somew^hat obscured by its frequent 
use in an untechnical sense, as referring to the re- 
linquishment or yielding up, not of an estate, but of the 
physical possession of the premises, as when the lessee 
covenants to "surrender" the premises in good con- 
dition at the end of the term, and the courts frequently 
fail clearly to distinguish between such a surrender 
of possession and a surrender, properly so called, of 
an estate for life or j^ears. Quite frequently, in using 

70. See United States v. Call- Cummings v. Dearborn, 56 Vt. 

fornia & Oregon Land Co., 148 U. 441. 

S. 31, 37 L. Ed. 354; Derrick 71. See post, § 567(m). 

V. Brown, 66 Ala. 162 Reynolds That the word "quitclaim" is 

V. Shaver, 59 Ark. 299; Morrison used does not in itself show that 

V. Wilson, 30 Cal. 344; Wightman the conveyance is legally a quit- 

V. Spofford; 56 Iowa, 145; Taylor claim deed. Hitt v. Caney Fork 

V. Harrison, 47 Tex. 454, 26 Am. Gulf Coal Co., 124 Tenn. 93, 139 

Rep. 304; Nichols v. Schmitton, S. W. 693; Garrett v. Christopher, 

107 Tex. 54, 174 S. W. 283; Cook 74 Tex. 453, 15 Am. St. Rep. 850, 

v. Smith, 107 Tex. 119, 174 S. 12 S. W. 67. 

W. 1094; Baldwin v. Drew, — - 72. Co. Litt. 337b. See 2 Piatt, 

(Tex. Civ.) --, ISO S. W. 614; Leases, 499; Comyn, Landl. & 

Ten. 336. 



§ 431] Teansfeb Inter Vivos. 1579 

the term even in its technical sense, a surrender "of 
the lease" is spoken of, but this must be understood as 
merely an elliptical expression signifying a surrender 
of the estate created by the lease. 

The courts occasionally refer to the "rescission" 
or '' cancellation" of the lease by the parties to the 
tenancy, without apparently recognizing that a termina- 
tion of the tenancy as a result of an agreement of tlie 
parties, made subsequently to its creation, necessarily 
involves the divesting of a leasehold estate out of the 
lessee, or his assignee, and a revesting thereof in the 
landlord.''^^ After an estate, whether in fee simple or 
for life or for years, has been conveyed, the grantor and 
grantee in the conveyance cannot effect a reconveyance 
of the estate to the former by undertaking to "rescind" 
or "cancel" the original conveyance.^"* The parties 
to a contract can rescind or cancel the contract, that 
is, they can make a new contract by which each agrees 
to forego his rights under the previous contract, but 
the mere making of a new contract can never transfer 
property rights even to a person in whom they were 
formerly vested. Any rescission or -cancellation, so 
called, of a lease, by the parties thereto, must con- 
sequently, in order to terminate the tenancy, constitute 
in legal effect a surrender, and must satisfy the re- 
quirements existing with reference to such a mode of 
convey ance.'^^* 

In order that a surrender may be effected, the 
estate surrendered must be no greater in quantum 
that the estate of the surrenderee, since otherwise it 
cannot merge therein.''' And furthermore it must 

73. See Silva v. Bair, 141 Cal. 94 N. W. 431; Snyder v. Ilard- 

599, 75 Pac. 162; Alschuler v. ing, 34 Wash. 286, 75 Fac. 812. 
Schiff, 164 in. 298, 45 N. E. 74. Post, § 465. 

424; Evans v. McKanna, 89 Iowa 74a. Post, this section, note 

362, 8 Am. St. Rep. 390, 56 80. 

N. W. 527; Andre v. Graebner, 75. 3 Preston, Conveyancing, 

126 Mich. 116, 85 N. W. 464; 166 et seq. 
Geddis v. Folliett, 16 S. D. 610, 



1580 Real Property. [§ 431 

immediately precede the latter estate as regards the 
right of possession, with no vested estate intervening.'^'^ 
Consequently if A leases to B for years and B leases to 
C, the subtenant C cannot surrender to A, and if 
property is devised to A for life, with remainder to 
B for life, with remainder to C in fee, A cannot, though 
B can, surrender to C. 

Express surrender. Surrender may be either 



''express" or "by operation of law." At common law 
an express surrender, in the ordinary case, could be 
made orally,''^ but this was changed by the provision 
of the English Statute of Frauds that a surrender, if 
not by act and operation of law, must be in writing, 
signed by the surrenderor or his agent, and there are 
in most of the states statutes to a similar effect.'^* 

Before the Statute of Frauds the cancellation of 
an instrument of lease was regarded as equivalent to 
an oral surrender, and valid as such,'^^ but this is no 
longer the case.*"' As elsewhere stated,^^ the cancella- 
tion of an instrument of conveyance, after its delivery, 
does not have the effect of revesting in the maker the 
estate conveyed thereby, and this is as true of a con- 
veyance by way of lease for a terra of years as of a 
conveyance in fee simple. 

While the words "surrender, grant and yield up" 
are ordinarilj^ used in a formal instrument intended to 
take effect as a surrender, no particular words are 
necessary, it being sufficient that an intention to trans- 
fer the leasehold interest to the reversioner clearly 
appears.^- Accordingly, an instrument in form a lease 

76. Except when an estate for Gilb. Eq. Cas. 235. 

years is interposed between two 80. Roe d. Berkley v. Arch- 

freeliold estates. Id. 107, and bishop of York, 6 East 86; Doe 

ante, § 34. d. Courtail v. Thomas, 9 Barn. 

77. Co. Litt. 338a; Sheppard's & C. 288; Rowan v. Lytle, 11 
Touchstone 300. Wend. (N. Y.) 616. 

78. See 2 Tiffany, Landlord 81. Post, § 465. 

& Ten., § 189a. 82. Farmer v. Rogers, 2 Wils. 

79. Magennis v. Mac Cullogh, 26; Shepard v. Spaulding, 4 



§ 431] Transfer Inter Vivos. 1581 

of the premises by the tenant to the landlord has been 
regarded as sufficient as a surrender,'*" as has 
what was in terms an "agreement" for the relin- 
quishment of tlie leasehold, it being intended to take 
effect as a surrender,^"* Apparently, in England, where 
a mortgage transfers the legal estate to tlie mortgagee, 
a mortgage of the leasehold by the tenant to his land- 
lord would take effect as a surrender ,'"•'• l3ut such a 
result could not follow in any juiisdiction where a 
mortgage does not transfer the legal title."*' 

Surrender by operation cf law. A surrender 

by "act and oi)eration of law," which is expressly ex- 
cepted from the Statute of Frauds, is a surrender 
which the law infers from certain acts by the parties 
as being inconsistent with the continued distinct px- 
istenee of the two former estates. Occasionall}^ the 
theory appears to be asserted that surrender by opera- 
tion of law takes place because the acts of the parties 
show an intention or agreement that the leasehold 
estate shall be surrendered;^" but it is somewhat difficult 
to regard a surrender as taking place by operation of 
law when it results from the agreement or intention 

Mete. (Mass.) 416; Greider's Ap- ing Ass'n, 106 111. 221, 46 N. E. 

peal, 5 Pa. St. 422, 47 Am. Dec. 752; Talbot v. Whipple, 14 Allen 

413. (Mass.) 177; Tobener v. Miller, 

83. Loyd v. Langford, 2 Mod. 68 Mo. App. 569; Meeker v. 
174; Smith v. Mapleback, 1 Spalsbury, 66 N. J. Law 60, 
Term R. 441; Shepard v. Spauld- 48 Atl. 1026; Home Coupon fix- 
ing, 45 Mass. (4 Mete.) 416. change Co. v. Goldfarb, (N. J. 

84. Harris v. Hancock, 91 N. Eq.) 74 At. 14.!; O'Neill v. 
Y. 340; Allen v. .laquish, 21 Pear.se, 88 N. J. L. 733. 96 Atl. 
"Wend. (N. Y.) 628. 1102, affirming 87 N. J. L. 382, 

85. See Cottee v. Richardson, 94 Atl. 312; Bedford v. Ter- 
7 Exeh. 143. hune, 30 N. Y. 453, 86 Atl. 394; 

80. See Breeae v. Bange, 2 Hart v. Pratt, 19 Wa.sh. 560, 53 

E. D. Smith N. Y.) 474. Pae. 711. 

87. See e. g. Beall v. White, And see cases cited this sec- 

94 U. S. 382, 24 L. Ed. 173; tion. post note 93. 
Brewer v. National Union Build- 

R. P.— 25 



1582 



Real Propee,ty. 



[§ 431 



of tlie parties, even tlioiigh this is shown by acts rather 
than by words. ^^ 

A surrender by operation of law occurs when the 
tenant accepts from the reversioner a new lease, to be- 
gin immediately, or at any time during the existence 
of the previous lease; this result being based on the 
theory that, by such acceptance, the tenant is estopped 
to deny the validity of such new lease, which neverthe- 
less cannot be valid unless the first lease is terminated.*^ 
The new lease must, it seems, be sufficient to pass an in- 
terest according to the intention and contract of the pav- 
ties,^*^ but the fact that the new lease is oral is imma- 
terial if an oral lease is sufficient to create the interest 
intended to be created.^^ Since the surrender in such case 
is by operation of law, it might be considered as takings 
place even contrary to the intention of the parties.^- 



88. So in Felker v. Richard- 
son, 67 N. H. 509, 32 Atl. 830, it 
is said, per Carpenter, J., "A 
surrender by agreement, whether 
express or implied, is the act, not 
of the law, but of the parties. To 
constitute a surrender by opera- 
tion of law, overt acts of both 
parties inconsistent with the con- 
tinuance of the term are essen- 
tial." But see Professor Aigler's 
note in 15 Mich. Law Rev. 659, 
and the article there referred to 
in 5 Irish Jurist, 117, also Editor- 
ial note 28 Harv. Law Rev. 313. 

89. Lyon v. Reed, 13 Mees. & 
W. 285; Otis v. McMillan, 70 Ala. 
46; Welcome v. Hess, 90 Cal. 507. 
27 Pac. 369; Flagg v. Dow, 99 
Mass. 18; Bowman v. Wright, 65 
Neb. 661. 91 N. W. 580; Schief- 
felin V. Carpenter, 15 Wend (N. 
Y.) 400; Edwards v. Hale, 37 
W. Va. 193, 16 S. E. 487. 

Acceptance by the tenant from 
the landlord of an interest other 
than an estate for years, if in- 



consistent with the former ten- 
ancy, has likewise been regarded 
as effecting a surrender by oper- 
ation of law, as when "a lessee 
for years accepts a grant of a 
rent, common, estovers, herbage, 
or the like, for life or years, out 
of the same lands." Bac. Abr., 
Leases (S.) 2, 1. See 2 Tiffany, 
Landlord & Ten. § 190 b (2). 

90. Doe d. Biddulph v. Poole, 
11 Q. B. 713; Zick v. London 
United Tramways Ltd., (1908) 
2 K. B. 126; Schiefflin v. Car- 
penter. 15 Wend. (N. Y.) 400; Coe 
v. Hobby, 72 N. Y. 141. 28 Am. 
Rep. 120. 

91. Comyn's Dig. "Surrender," 
(Tl); Fenner v. Blake, (1900), 1 
Q. B. 426; Evans v. McKanna, 89 
Iowa, 362, 48 Am. St. Rep. 390, 
56 N. W. 527; Schiefflin v. Car- 
penter. -5 Wend. (N. Y.) 400; Coe 
V. Hobby. 72 N. Y. 141, 28 Am. 
Rep. 120. 

92. See Lyon v. Reed, 13 Mees. 
& W. 285; Brown v. Cairns, 107 



-§431] Tkansfer Intek Vivos. 158o 

Occasionally, however, a different view has l>een taken, 
that the new lease merely raises a presumption of 
surrender, capable of rebuttal by evidence that the 
intention was otherwise.^^ 

The question has occasionally arisen whether an 
assignee of the lessee, by reason of his recognition by 
the landlord as tenant of the premises, can be regarded 
as holding under a new lease, so as to effect a sur- 
render of the estate created by the original lease, and 
consequently to put an end to the liability of the 
original lessee on account of rent. The cases are 
generally to the effect that the mere acceptance of 
rent from the assignee does not involve a new lease, 
so as to effect a surrender,^* and it is difficult to see 
how any other view could be adopted. The assignee is 
bound to pay the rent, an'd the acceptance of payment 
from him involves merely the recognition of a liability 
already existing.^^ 

A second mode of surrender by operation of law, 
and one which frequently occurs, results from the re- 

lowa, 727, 77 N. W. 478; Enyeart (Mass.) 337; Detroit Pharmacal 

V. Davis, 17 Neb. 228, 22 N. W. Co. v. Burt. 124 Mich. 220, 82 

449. N. W. 893; Rees v. Lowry, 57 

93. Flagg V. Dow, 99 Mass. 18 Minn. 381, 59 N. W. 310; Ed- 
(semble) ; Thomas v. Zumbalen. wards v. Spalding, 20 Mont. 54, 
43 Mo. 471; Brown v. Linn 49 Pac. 443; Bouscaren v. Brown, 
Woolen Co., 114 Me. 266, 95 Atl. 40 Neb. 722, 42 Am. St. Rep. 692, 
1037; Smith v. Kerr, 108 N. Y. 59 N. W. 385; Creveling v. De 
31, 2 Am. St. Rep. 362, 15 N. E. Hart, 54 N. J. Law 338. 23 At. 
70. See Editorial note 22 Harv. 611: Laughran v. Smith, 75 N. 
Law Rev. 55. Y. 205; Frank v. McGuire, 42 Pa. 

94. Bonetti v. Treat, 91 Cal. 77; Adams v. Burke, 21 R. L 
233, 13 L. R. A. 418. 27 Pac. 612; 126, 42 At. 515; Granite BIdg. 
Triest & Co. v. Goldstone, 173 Cal Corp. v. Rubin, 40 R. I. 208, 100 
240, 159 Pac. 715; Cuesta v. Gold- Atl. 310; Johnson v. Norman, 98 
smith, 1 Ga. App. 48, 57 S. E. Wash. 331, 167 Pac. 923. And 
983; Grommes v. St. Paul Trust cases cited ante, § 407, note 59c. 
Co., 147 111. 634, 35 N. E. 820, 95 There are cases however 
7 Am. St. Rep. 248; Harris v. which regard the original lessee 
Heachman, 62 Iowa, 411, 17 N. as relieved from liability in such 
W. 592; Brewer v. Dyer, 7 f'nsh. case. See ante, § 407, note 59d. 



1584 Eeal Peopeety. [§ 431 

linquishment of possession by the tenant and the re- 
sumption of possession by the landlord.''*' The theory 
of such surrender would seem to be that the revesting 
of possession in the landlord to the exclusion of the 
tenant, by the action of both parties, being inconsistent 
with the continuance of an outstanding leasehold in 
the tenant, both are estopped to assert that the relation 
of landlord and tenant still exists. It is immaterial 
whether such change of possession is the result of 
agreement. The tenant may relinquish, possession to the 
landlord in accordance with an agreement to that ef- 
fect,''" but more frequently the change of possession oc- 
curs as a result of the abandonment of the premises by 
the tenant and the subsequent resumption of the pos- 
session thereof by the landlord. 

The question frequenth' arises whether there has 
been such a resumption of possession by the landlord, 
upon the abandonment of the premises by the tenant, 
as to give rise to a surrender by operation of law, 
relieving the tenant from liability under the lease. This 
appears to depend, in each case, on whether the land- 
lord has taken possession with the intention of oc- 
cupying and controlling the premises as his own, to 

96. Grimman v Legge, 8 Barn. ises and the tenant accedes to 
& C. 324; Dodd v. Acklom, 6 such demand. See e. g. Kean 
Man. & G. 672; Shahan v. v. Rogers, 146 Iowa, 559, 123 N. 
Herzberg, 73 Ala. 59; WiUiams W. 978: Conkling v. Tuttle. 52 
V. Jones, 1 Bush (Ky.) 621; Mich. 630, 18 N. W. 391; Smith 
Lamar v. McNamee, 10 Gill & J. v. Pendergast. 26 Minn. 318, 3 N. 
(Md.) 116, 32 Am. Dec. 152; W. 978; Frankel v. Sternau, 92 
Talbot V. Whipple, 14 Allen, Ohio St. 197, 110 N. E. 747; 
(Mass.) 177; Prior v. Klso, 81 Patchin's Ex'r v. Dickerman, 31 
Mo. 2^1; Elgutter v. Drishaus, 44 Vt. 666; Eimerman v. Nathan, 
Neb. 378, 63 N. W. 19; Dennis v. 116 Wis. 124, 92 N. W. 550 
Miller, 68 N. J. Law 320, 53 Atl. {semhle) ; Boyd v. Gore, 143 Wis. 
394; Elliott v. Aiken, 45 N. H. 5,31, 128 N. W. 68; Compare 
30; Hart v. Pratt, 19 Wash. 560, Whittaker v. Barker, 1 Cromp & 
53 Pac. 711. M. 113; Lamar v. McNamee, 10 

97. There is such an agree- Gill & J. (Md.) 116, 32 Am. Dec. 
ment, it appears, if the landlord ]52; Felker v. Richardson, 67 N. 
demands possession of the prem- H. 509, 32 Atl. 830. 



§ 431J 



Transfek Inter Vivus. 



1585 



the exclusion of the tenant in case the latter desires to 
return,"^ and this is ordinarily a question of fact.''''* 

That the landlord, after the tenant's abandonment, 
entered and cared for the premises,^ or that he made 
repairs,- has been regarded as not in itself involving 
such a resumption of possession. When the tenant, upon 
abandoning the premises, sends the key to the landlord 
or leaves it at his residence or place of business, the 
fact that the landlord fails to return it to the tenant does 
not necessarily show a resumption of exclusive pos- 
session of the jDremises for this purpose,-^ though the 



98. Welcome v. Hess, 90 Cal. 
507, 27 Pac. 369, 25 Am. St. Rep. 
145; Duffy v. Day, 42 Mo. App. 
638; Meeker v. Spalsbury, 66 N. 
J. Law 60, 48 Atl. 1026; Har- 
grove V. Bourne, 47 Okla. 484, 
150 Pac. 121. 

99. Hays v. Goldman, 71 Ark. 
251, 72 S. W. 563; Carson v. 
Arvantes, 10 Colo. App. 582, 
50 Pac. 1080; Okie v. Pearson, 23 
App. D. C. 170; Brewer v. Nation- 
al Bldg. Ass'n, 166 111. 221, 46 
N. E. 752; Armour Packing Co. v. 
Des Moines Park Co.. 116 Iowa, 
723, 93 Am. St. Rep. 270, 89 N. 
W. 196; Sander v. Holstein Com- 
mission Co., 118 Mo. App. 29, 
121 Mo. App. 293; Hargrove v. 
Bourne, 47 Okla. 484, 150 Pac. 
121; White v. Berry, 24 R. I. 74. 
52 Atl. 682; Kneeland v. Schmidt. 
78 Wis. :545. 11 L. R. A. 498, 47 
N. W. 438. 

1. .Joslin v. McLean, 99 Mich. 
480, 58 N. W. 467; Duffy v. Day, 
42 Mo. App. 638; Rucker v. 
Mason,— Okla.,— 161 Pac. 195; 
Milling V. Becker, 96 Pa. 182. 

2. Cook V. Anderson, 85 Ala. 
99, 4 So. 713; Brewer v. National 
Union Bldg. Ass'n 166 111. 221, 
46 N. E. 752; Sessinghaus v. 



Knocke, 127 Mo. App. 300, 105 S. 
W. 283; Haynes v. Aldrich, 133 N. 
Y. 287, 16 L. R. A. 183, 28 Am. 
St. Rep. 636, 31 N. E. 94; 
Breuckman v. Twibill, 89 Pa. 
58; Smith v. Hunt, 32 R. I. 326, 
79 Atl. 826. 

3. Oaster v. Henderson, 2 Q. 
B. Div. 575; Fehringer v. Wagner, 
Stockbridge Trading Co., 61 Colo. 
359, 157 Pac. 1071; Ledsinger v. 
Burke, 113 Ga., 74, 38 S. E. 313; 
ToUe V. Orth, 75 Ind. 298, 39 Am. 
Rep. 147; Martin v. Stearns, 52 
Iowa, 345, 35 Am. Rep. 278, 3 N. 
W. 92; Withers v. Larrabee. 48 
Me. 570 Joslin v. McLean, 99 
Mich. 480, 58 N. W. 467; Lucy v. 
Wilkins, 33 Minn. 441, 23 N. W. 
861; Landt v. Schneider, 31 Mont. 
15. 77 Pac. 307; Underbill v. 
Collins, 132 N. Y. 269, 30 N. E. 
576; Bumiller v. Walker, 95 Ohio 
.■!44, L. R. A. 1918B, 96, 116 N. E. 
797; Bowen v. Clarke, 22 Ore. 
566, 29 Am. St. Rep. 625, 30 Pac. 
430; Auer v. Penn, 99 Pa. 370, 
44 Am. Rep. 114; John B. Webster 
Co. V. Grossman. 33 S .D. 383, 146 
N. W. 565, (acceptance of Key by 
Janitor); C'liandler v. Hinds, 135 
Wis. 43, 115 N. W. :!39. 

That the landlord, for the pur- 



1586 



Real Peopejrty. 



[§ 431 



acceptance and retention of tlie key, combined with other 
circumstances, may have this effect.'^ The attempt of 
the landlord to lease the premises to a third person,^ 
or even his actual making of such a lease, to take 
effect immediately in possession, does not, in a number 
of jurisdictions, show such an assumption of control 
over the premises as to give rise to a surrender, re- 
lieving the former tenant from further liability under 
the previous lease,^ especially in case the landlord, 
before making the second lease, notifies the former 
tenant that he is about to make such a lease on the 
latter 's account, that is, that his purpose is to reduce, 
but not necessarily to extinguish, the latter 's liability 
for rent.'^ By other cases it is held that such reletting 



pose of making repairs, obtained 
the key from the tenant, was 
held not to relieve the tenant, 
he having been notified that he 
would still be held liable. Smith 
V. Hunt, 32 R. I. 326, 79 Atl. 823. 

4. Phene v. Popplewell, 12 C. 
B. N. S. 334; Brewer v. National 
Union Bldg. Ass'n 166 111. 221, 46 
N. E. 752; Hesseltine v. Seavey, 
16 Me. 212; Buckingham Apart- 
ment House Co. V. Dafoe, 78 
Minn. 268, 80 N. W. 974; Fink 
V. Browe Co., (N. J. Ch.) 99 Atl. 
926; Bowen v. Clarke, 22 Ore. 
566, 29 Am. St. Rep. 625, 30 Pac. 
430. 

5. Walls V. Atcheson, 3 Bing. 
462; Joslin v. McLean, 99 Mich. 
48, 58 N. W. 467; Blake v. Dick, 
15 Mont. 236, 48 Am. St. Rep. 671, 
38 Pac. 1072; O'Neil v. Pearse. 88 
N. J. L. 733, 96 Atl. 1102 aff'g 87 
N. J. L. 382, 94 Atl. 312; Haynes 
V. Aldrich. 133 N. Y. 287, 16 L. 
R. A. 183, 28 Am. St. Rep. 636, 
31 N. E. 94; Lane v. Nelson. 167 
Pa. 602, 31 Atl. 864. In Meagher 
V. Eilers Music House, S4 Ore. 



33, 164 Pac. 373, the decision to 
this effect was to some extent 
based on the fact that the second 
lease expressly reserved a right 
in the original tenant to resume 
possession. 

6. Humiston, Keeling & Co. v. 
Wheeler, 175 111. 514, 51 N. E. 
893; Martin v. Stearns, 52 Iowa, 
345, 3 N. W. 92; H. S. Chase & 
Co. v. Evans, 178 Iowa, 885, 160 
N. W. 346; Scheelky v. Koch, 119 
N. C. 80, 25 S. E. 713; Bumiller v. 
Walker, 95 Ohio, 344, L. R. A. 
1918B, 96, 116 N. E. 797; Bowen 
V. Clarke, 22 Ore. 566, 29 Am. St. 
Rep. 625, 30 Pac. 430; Auer v. 
Penn, 99 Pa. 370, 44 Am. Rep. 
114; Auer v. Hoffmann. 132 Wis. 
620, 112 N. W. 1090. 

7. See Williamson v. Crossett, 
62 Ark. 393: Renard v. Renard, — 
Cal.— 165 Pac. 694; Rehkopf v. 
Wirz, 31 Cal. App. 695, 161 Pac. 
285; Brown v. Cairns, 107 Iowa, 
727. 77 N. W. 478; Kean v. 
Rogers, 146 Iowa. 559, 123 N. W. 
754; Oldewurtel v. Wiesenfeld, 97 
Md. 165. 54 Atl. 969; Alsup v. 



§ 431] 



Transfer Inter Vivos. 



1587 



necessarily brings to an end the tenancy previously 
existing,^ and in favor of this view is the fact that the 
contrary view appears to involve a right of possession 
in two distinct persons under two distinct leases at 
one and the same time.** 

A third mode of surrender by operation of law oc- 
curs in the case of a new lease by the landlord to a 
third person, accompanied by the former tenant's re- 
linquishment of possession in favor of such person. ^*^ 
And it is apparently on this principle, or on a prin- 
ciple akin thereto, that a surrender by operation of 
law has occasionally been regarded as taking place when 
the landlord accepted as his tenant a sublessee of the 
original tenant.^^ 



Banks, 68 Miss. 664, 13 L. R. A. 
598, 24 Am. St. Rep. 294, 9 So. 
895; McGinn v. B. H. Gladding 
Dry Goods Co., 40 R. I. 348, 101 
Atl. 129. 

8. Oastler v. Henderson, 2 Q. 
B. Div. 575: Welcome v. Hess, 90 
Cal. 507, 25 Am. St. Rep. 145, 
27 Pac. 380: Rice v. Dudley, 65 
Ala. 68; Haycock v. Johnston, 97 
Minn. 289, 114 Am. St. Rep. 715. 
106 N. W. 304; Gray v. Kaufman 
Dairy & Ice Cream Co., 162 N. 
Y. 388, 49 L. R. A. 580, 76 Am. 
St. Rep. 327, 56 N. E. 903; Pelton 
V. Place 71 Vt. 430, 46 Atl. 63. 

9. See 2 Tiffany, Landlord & 
Ten. p. 1340, 14 Mich. Law Rev. 
82; 15 Id. 559. 

In Whitcomb v. Brant. 100 Atl. 
175, it Mas held by the New 
Jersey Court of Errors and Ap- 
peals that a lessor making a 
new lease, upon abandonment by 
the first lessee, at a higher rent 
than that reserved in the first 
lease, was not liable for the ex- 
cess to the first lessee, although 
he had refused to consent to a 



surrender. The case is criticized. 
30 Harv. Law Rev. 766. 

10. Nickells v. Atherstone, 10 
Q. B. 944; Morgan v. McCollister, 
110 Ala. 319, 20 So. 54; Triest & 
Co. V. Goldstone, 173 Cal. 240, 

159 Pac. 715; Williams v. Vander- 
bilt, 145 111. 238, 21 L. R. A. 489, 
36 Am. St. Rep. 486, 34 N. E. 
476; Rogers v. Dockstader, 90 
Kan. 189, 13S Pac. 717; Kins^y v. 
Minnick, 43 Md. 112; Amory v. 
Kannoffsky, 117 Mass. 351, 19 
Am. Rep. 416; Gallop v. Murphy, 

160 Mo. App. 1, 141 S. W. 438; 
Washoe Coui.ty Bank v. Cai ipbell, 
41 Nev. 153, 67 Pac. 643; In re 
Sherwoods, 210 Fed. 754. 

As to the effect of the invalidity 
of the new lease, see editorial 
note 28 Harv. Law Rev. 313, 
Commenting on Johnson v. North- 
ern Trust Co., 265 111. 263, 106 
N. E. 814. Compare 2 Tiffany, 
Landlord & Ten. p. 1347. 

11. Dills v. Stobie, 81 lU. 202 
(srmble); Stimmel v. Waters, 2 
Bush (Ky.) 282; Amory v. Kan- 
offsky, 117 Mass. 351, 19 Am. Rep. 



1588 



Real, Property. 



[§§ 431, 432 



Effect of surrender. A surrender by a par- 
ticular tenant has the effect of extinguishing his es- 
tate/^ and if he is a tenant under a lease it terminates 
all future liability under the covenants/'' the most 
ordinary application of this principle occurring in the 
case of a covenant to pay rent, which ceases to be 
effective after a surrender.^* A surrender does not, 
however, operate to the prejudice of a third person.^"* 
For instance, the interest of a subtenant is not affected 
by the surrender of the estate of the head tenant,^'' 
nor is a lien on the estate surrendered affected by the 
surrender.^^ 

§ 432. Conveyances failing to take effect in the 
manner intended. A conveyance which is intended to 
take effect as a certain class of conveyance, if not valid 
for that purpose, will, if possible, be construed as a 
conveyance of another character, in order that it may 



416; Snyder v. Parker, 75 Mo. 
App. 529; Thomas v. Cook, 2 
Barn & Aid. 119. See 2 Tiffany. 
Landlord & Ten. § 154. 

12. Co. Litt 338b; Terstegge v. 
First German Mut. Benev. Soc. 
92 Ind. 82, 47 Am. Rep. 135; 
Deane v. Caldwell, 127 Mass. 242; 
Harris v. Hiscock, 91 N. Y. 340; 
Appeal of Greider, 5 Pa. 422, 47 
Am. Dec. 413. 

13. Piatt, Covenants, 585; 
American Bonding Co. v. Pueblo 
Inv. Co., 150 Fed. 17, 9 L. R. A. 
(N. S.) 557: Deane v. CaldweU, 
127 Mass. 242; Snowhill v. Reed, 
49 N. J. L. 292, 60 Am. Rep. 615, 
10 Atl. 737. 

14. Ante, § 413, note 66. 
15 Co. Litt 338b. 

16. Mellor v. Watkins, L. R. 
9 Q. B. 400: Mitchell v. Young, 
80 Ark. 411, 7 L. R. A. (N .S.), 
221, 17 Am. St. Rep. 89, 97 S. W. 



454: Buttner v. Kasser. 19 Cal. 
App. 755, 127 Pac. 811: McKenzie 
V. Lexington. 4 Dana (Ky.) 129; 
Eten V. Luyster, 60 N. Y. 252; 
Krider v. Ramsay, 79 N. C. 354: 
Hessel v. .Johnson, 129 Pa. 173. 
5 L. R. A. 851, 15 Am. St. Rep. 
716, 18 Atl. 754; Cuschner v. 
Westlake. 43 Wash. 690, 86 Pac. 
948. 

So it has been held that al- 
though the surrender of the es- 
tate of the head tenant prevents 
the recovery from the subtenant 
of rent afterwards accruing (ante 
§ 413, note G9a) the surrenderee 
is still bound by a covenant 
entered into by the original les- 
sor. Bailey v. Richardson, 66 
Cal. 416, 5 Pac. 910; Standard 
Oil Co. v. Slye, 164 Cal. 435, 129 
Pac. 589. 

17. Farnum v. Hefner, 79 Cal. 
575, 12 Am. St. Rep. 174. 21 Pac. 



<§ 433'] Transfer Inter Vivos. 1589 

take effect.^** This important rule has been applied in 
numerous connections. For instance, a conveyance in- 
tended to take etifect as a bargain and sale, but which 
is void as such for want of a pecuniar}^ consideration, 
will take etfect as a covenant to stand seised, if a con- 
sideration of blood or marriage exists;^'' and, as be- 
fore stated, a conveyance in words of release, void as 
such for want of an estate or possession in the releasee, 
will be supported as a conveyance by bargain and 
sale, or otherwise.-" This principle has also been adopted 
to support limitations of future estates w-hich could 
not fee supported unless the conveyance were regarded 
as operating under the Statute of Uses.-^ 

II. Form and Essentials of a Conveyance. 

§ 433. General considerations. All conveyances 
of freehold or leasehold interests in lands, other than 
certain leases for three years or less, must, by the 
Statute of Frauds, be in writing.-^ In most, if not 
all, the states of this country there are statutes to the 
same general effect.^" These statutes, however, as be- 
before stated, do not interfere with surrenders by 
operation of law,-^ And even in the case of an at- 

955; Dobschuetz v. HoUiday, 82 United States v. Housman, 6 

111. 371; Firth v. Rowe, 53 N. J. Paige (N. Y.) 526; Eckmaii v. 

Eq. 520, ;;2 Atl. 1064; Allen v. Eckman, 68 Pa. St. 460. 
Brown. 60 Barb. (N. Y.) 39. 20. See ante, note ZW. 

18. Norton Deeds, 46, citing 21. Roe d. Wilkinson v. Tran- 
the numerous English cases. mer, 2 Wils. 75, Willes, 682; 
Goodtitle v. Bailey, Cowp. 600; Ward v. Wooten, 75 N. C. 413; 
Roe d. Wilkinson v. Traniner, Wall v. Wall , 30 Miss. 91, 64 
Willes, 682; Foster's Lessee v. Am. Dec. 147; Merrill v. Pub- 
Dennison. 9 Ohio, 121; Hunt v. lishers Paper Co., 77 N. H. 285, 
Hunt, 14 Pick. (Mass.) 374; 90 Atl. 786; Rembert v. Vetoe, 
Lambert v. Smith, 9 Ore. 185, 191. 89 S. C. 198, 71 S. E. 959. 

See Gray. Perpetuities § 65. 22. 29 Car. II c. 3, p. 1-3. 

19. Crossing v. Scudamore, 2 23. 1 Stimson's Am. St. Law, 
Lev. 9. 1 Mod. 175; Morton v. S§ 1560. 4143. 

Sledge. 29 Ala. 478; Bank of 24. See ante, § 431. 



1590 Keal Property. [^ 433 

tempted oral conveyance, the intended grantee, by 
making improvements upon the property, may create 
an equity in himself entitling him to a valid written 
conveyance.^^ 

At common law, all written conveyances of land, as 
well as most other written instruments, were in the 
form of deeds, that is, of instruments under seal, and 
a deed was either a ''deed of indenture" or a "deed 
poll." A deed of indenture was a deed made between 
two or more persons, while a deed poll was made by one 
person only.-'^ These terms are thus used in England 
at the present day, and they are occasionally so' used 
in this country. 

A carefully drawn conveyance usually consists of 
the following parts : At the commencement the names 
of the parties are stated,^" and the date is sometimes 
here given, though it is frequently placed at the end. 
Next come the recitals, if there are any, these being 
statements of fact, explanatoiy of the transaction. A 
statement of the consideration and of its payment and 
receipt then follow,^^ and, after this, the operative 
words of conveyance,-'' with a description of the land 
conveyed,^^ and any exception therefrom."^^ The parts 
thus far eimme rated constitute what is known as "the 
premises," The premises are followed by the "haben- 
dum" which limits the estate to be taken by the 
grantee, and is usually introduced by the words "to 

25. Post, § 547. queutly, conveyancers adopted the 

26. Co. Litt. 229a. The word practice, which still, it seems, 
, 'indenture" originated in the fact prevails in England, of cutting 
that two copies of the deed were all deeds between two or more 
usually written on the same parties in a waving line at the 
piece of parchment, with some top. 2 Blackst. Comm. 296; Wil- 
word or letters written between Hams, Real Prop. (18th Ed.) 150. 
them, through which the parch- 27 .Post, § 434. 

ment was cut in an indented or 28 Post, § 438. 

waiving line. The words "deed 29. Post, § 435. 

poll" refer to a deed "polled" 30. Post, §§ 441-448. 

or shaven at the top. Subse- 31. Post, § 436. 



§ 434] Transfer Inter Vivos. 1591 

have and to hold. "^- Any declaration of trust which 
is sought to be made is here inserted. The "redden- 
dum" or reservation'' then follows, after that the 
statement of any condition or power affecting the 
grant, and then the covenant or covenants of title.-^^ 
The conclusion usually consists of a formal reference to 
the execution, and the signatures and seals of the 
parties are then placed by them at the foot of the 
instrument.^^ There is also, almost invariably, a certi- 
ficate by an officer that the conveyance was acknow- 
ledged by the grantors. ^*^ 

Though a well drawn conveyance usually contains 
all or most of these parts above referred to, a convey- 
ance containing merely the names of the parties and 
words of conveyance, with a description of the land, 
if duly executed, is sufficient to vest at least an estate 
for life in the grantee.^^ 

§ 434. Designation of the parties. A conveyance 
should designate with certainty the name of the grantor, 
and this should regularly be done at the commence- 
ment. It is sufficient, however, if the name as given 
is sufficient to enable the grantor to be identified, and 
the fact that his name as it appears in the instrument 
differs from his actual name, or from the name signed 
thereto, does not invalidate the conveyance.^^ A con- 
veyance in terms by the "heirs" of a person deceased 
is sufficient, since they are capable of identification. '^'-^ 

32. Post, § 437. 361, 8 Am. St. Rep. 671, 37 N. 

33. Post, § 4;}6. W. 788; Houx v. Batteen, 68 Mo. 

34. Post, §§ 449-456. 64; Rupert v. Penner, 35 Neb. 

35. Post, §§ 457, 458. 587, 17 L. R. A. 824, 53 N. W. 

36. Post, § 460. 598; David v. Williamsburg City 

37. Co. Litt. 7a; 4 Kent's Fire Ins. Co., 83 N. Y. 265, 38 
Comm. 461. Am. Rep. 418; Jenkins v. Jenkins, 

38. Comyn's Dig. "Fait" (E 148 Pa. St. 216, 23 Atl. 985; Chap- 
3); Erskine v. Davis, 25 lU. 251; man y. Tyson, 39 Wash. 523, 81 
Nicodemus v. Young, 90 Iowa, Pac. 1066. 

423, 57 N. W. 906; Bierer v. 39. Blaisdell v. Morse, 75 Me. 

Fretz, 32 Kan. 329, 4 Pac. 284; 542. 
Wakefield v. Brown, 38 Minn. 



1592 



Real. Propebty. 



[§ 434 



It lias generally been held that, when two or more 
persons join in the execution of a conveyance, only such 
as are named in the body of the instrument will be 
regarded as parties thereto. This rule has usually 
been applied in the cases of conveyances by a husband, 
the joinder in the execution of which by the wife has 
been regarded as insufficient to release her dower, or 
otherwise divest her rights ;^^' but the rule has also been 
a23plied in the case of another person joining in the 
execution of a conveyance which does not name him 
as a party."* ^ In a number of jurisdictions, however, 
the rule referred to has been repudiated, more usually,*- 
but not exclusively,'*-^ in connection with the question 



40. Agricultural Bank of Miss- 
issippi V. Rice, 4 How. (U. S.) 
22.5, 11 L. Ed. 949; Batchelor v. 
Brereton, 112 U. S. 396, 28 L. 
Ed. 748; Harrison v. Simons, 
55 Ala. 510; Cordano v. Wright. 
159 Cal. 610, Ann. Cas. 1912C, 
1044, 115 Pac. 227; Cox v. Wells, 
7 Blackf. (Ind.) 410, 43 Am. 
Dec. 98; Prather v. McDowell, 8 
Bush (Ky.) 46; Beverly v. Wal- 
ler, 115 Ky. 600, 103 Am. St. Rep. 
342, 74 S. W. 264; Payne v. 
Parker, 10 Me., 178, 25 Am. Dec. 
221; Stevens v. Owen, 25 Me., 94; 
Lothrop V. Foster, 51 Me. 367; 
Catlin V. Ware, 9 Mass. 218, 6 
Am. Dec. 56; Leavitt v. Lamprey. 
13 Pick. (Mass.) 382, 23 Am. Dec. 
685; Greenough v. Turner. 11 
Gray (Mass.) 334 Merrill v. 
Nelson, 18 Minn. 366; Stone v. 
Sledge, 87 Tex. 49, 47 Am. St. 
Rep. 65, 26 S. W. 1068; Laugh- 
lin V. Fream. 14 W. Va. 322. 

41. Harrison v. Simons, 55 
Ala. 510; Parsons v. Justice, 163 
Ky. 737, 174 S.-W. 725; (Compare 
Hargis v. Ditmore. 8fi Ky. 653, 
7 S. W. 141); Peabody v. Hewitt. 



52 Me. 33, 83 Am. Dec. 486; Marx 
& Sons v. Jordan, 84 Miss. 334, 
105 Am. St. Rep. 457, 36 So. 
386; See Batchelor v. Brereton, 
112 U. S. 396. 28 L. Ed. 748; 
Stone V. Sledge. 87 Tex. 49, 47 
Am. St. Rep. 65, 26 S. W. 1068. 

42. Ingoldsby v. Juan, 12 Cal. 
564; Johnson v. Montgomery, 51 
111. 185; Armstrong v. Stovall, 26 
Miss. 275; Elliot v. Sleeper, 2 N. 
H. 525; Burge v. Smith, 27 N 
H. 332; Woodward v Leaver. 
38 N. H. 29. And see Isler v. 
Isler, 110 Miss. 419, 70 So. 455. 

A husband's authentication of 
his wife's deed by his joinder in 
the execution, has occasionally 
been regarded as suflBcient under 
the statute, though he was not 
named in the instrument. Dentzel 
V. Waldie, 30 Cal. 138; Pease v. 
Bridge, 49 Conn. 58. 

43. Sterling v. Park, 129 Ga. 
309, 13 L. R. A. (N. S.) 298, 
121 Am. St. Rep. 224, 12 A. & 
E. Ann. Cas. 201, 58 S. E. 828; 
Hrouska v. Janke, 66 Wis. 252, 
28 N. W. 166. See Hargis v. 
Ditmore, 86 Ky. 653, 7 S. W. 141. 



§ 434] Transfer Inter Vivos. 15D.3 

of the release of dower, it being considered that the 
signature alone serves not only to identify the signer 
as a grantor in the conveyance, but also to indicate 
an intention to join therein for the i)urpose of passing 
his or her interest. The requirement that the grantor's 
name be inserted appears, as is suggested in some of 
the cases last cited, to have been based on the necessity 
of having some means for his identification,^^'' at a 
time when but few people wrote, and a writing was 
ordinarily authenticated by sealing alone. 

The grantee or grantees must be named in the 
conveyance, or means for their identification furnished 
thereby.^^ It does not affect the validity of the con- 
veyance that the name of the grantee, as inserted there- 
in, is not that ordinarily borne by him, but one given 
to or assumed by him for the occasion is sufficient.'*^ 
A conveyance however to an absolutely fictitious per- 
son is a nullity.^^ 

A conveyance to a person deceased is a nullity,'* "'^ 
and a conveyance to the "estate" of one deceased has 

43a. Perkins, Conveyancing. § 77 Am. Dec. 640; Chapman v. 

36; Sheppard's Touchstone, 233. Tyson, 39 Wash. 523, 81 Pac. 

44. Wood V. Boyd, 28 Ark. 75; 1066; Staak v. Sigelkow, 12 Wis. 
Wunderlin v. Cadogan, 50 Cal. 234. But in Barr v. Schroeder, 
613.. McGrew v. Lamb, 60 Colo, 32 Cal. 609 it appears to be as- 
462, 154 Pac. 91; Simmons v. sumed that a mistake in the 
Spratt, 20 Fla., 495; Chase v. grantee's name invalidated the 
Palmer, 29 111. 306; Clarke v. conveyance. 

Butts, 73 Minn. 361, 76 N. W. 46. David v. Williamsburg Fire 

199; Henniges v. Paschke, 9 N. Ins. Co., 83 N. Y. 265, 38 Am. 

D. 489, 81 Am. St. Rep. 588, 84 Rep. 418; Muskingum Valley 

N. W. 350; Hardin v. Hardin, Turnpike Co. v. Ward, 13 Ohio 

32 S. C. 599, 11 S. E. 102; Lund 120, 42 Am. Dec. 191; Weihl v. 

v. Thackery, 18 S. Dak. 113, 99 Robertson, 97 Tenn. 458, 37 S. 

N. W. 856; Wright v. Lancaster, W. 274. 

48 Tex. 250. 47. Lewis v. McGee 1 H. K. 

45. Wilson v. White, 84 Cal. Marsh. (Ky.) 199; Hunter v. 
239, 24 Pac. 114; Scanlan v. Watson, 12 Cal. 363, 73 Am. Dec. 
Grimmer, 71 Minn. 351, 70 Am. 543; Morgan v. Hazlehurst Lodge, 
St. Rep. 326, 74 N. W. 146; 53 Miss. G65; Neal v. Nelson, 117 
Thomas v. Wyatt, 31 Mo. 188, N. C. 393, 53 Am. St. Rep. 590. 



1594 



Real Property. 



[§ 43-1 



likewise been so regarded,^ ^ A conveyance to the "heirs" 
of one deceased is valid, since their identity is capable 
of immediate establishment.^^ 

It is immaterial in what part of the conveyance 
the grantee's name or identity is made to appear,^^^ 
but if a person is named as grantee in the premises, 
another person not named therein, but named in the 
habendum, cannot take an estate under the conveyance 
otherwise than by way of remainder.^! 

Uncertain grantee. Occasionally a conveyance 



is made in terms to the heirs of a particular person, 
which person is still alive. There is obviously no 
room for objection to the validity of such a conveyance 



23 S. E. 428. But when a con- 
sideration is paid, an equity has 
occasionally been recognized as 
existing in favor of the heirs. 
Hutto V. Hutto, 66 Fla. 504, 63 
So.; Johnson v. John L. Roper 
Lumber Co., 168 N. C. 226, 84 S. 
E. 289. 

In City Bank v. Plank, 141 
Wis. 653, it was held that a con- 
veyance in terms to a person de- 
ceased was valid, on the theory 
that by the use of the name of 
deceased it was intended to 
designate his executor, the in- 
ference being very strong that 
when the parties to a transaction 
know that a person named is 
dead, they intend, in using his 
name, to designate a living per- 
son.. 

48. Simmons v. Spratt, 20 Fla. 
495, 8 So. 123; Mclnerney v. 
Beck, 10 Wash. 515, 39 Pac. 130, 
But see Arnett v. Fairmont Trust 
Co., 70 W. Va. 296, 73 S. E. 
930, where a bequest to the 
"estate" of one deceased was 
regarded as passing the property 
to the personal representative. 



49. Shaw V. Loud, 12 MasS. 
447; Hoover v. Malen, 83 Ind. 
195; Boone v. Moore, 14 Mo. 
421; Gearheart v. Tharp, 9 B. 
Mon. (Ky.) 31. 

50. Spyve v. Topham, 3 East 
115; Richey v. Sinclair, 167 111. 
184, 47 N. E. 364; Berry v. Bil- 
lings, 44 Me. 416, 69 Am. Dec. 
107; Bay v. Posner, 78 Md. 42; 
Irwin V. Longworth, 20 Ohio, 581; 
Henniges v. Paschke, 9 N. Dak. 
489, 81 Am. St. Rep. 588; Co. 
Litt. 7a; Sheppard's Touchstone, 
75; 2 Preston, Conveyancing, 435. 

51. Norton, Deeds, 287; Shep- 
pard's Touchstone (Preston's Ed.) 
237; Samme's Case, 13 Coke, 54; 
Hiisted V. Rollins, Iowa, 137 N. 
W. 462, 42 L. R. A. (N. S.) 379: 
Blair v. Osborne, 84 N. C. 417; 
Moore v. City of Waco, 85 Tex. 
206; Adams v. Dunklee, 19 Vt. 
382; Cox v. Douglass, 20 W. Va. 
175; Weekly v. Weekly, W. Va. 
83, S. E. 1005. Contra, to the 
effect that one not named in 
premises may take otherwise than 
by way of remainder, see Mc- 
Leod V. Tarrant, 39 S. C. 271, 17 



§ 434] Transfer Inter Vivos. 1595 

if the word ''heirs" is in the particular case intended 
as a designation of ascertained persons, the living 
children, for instance, of the person named. ^- But 
it has been decided in a number of cases that if the 
word "heirs" is in such case used in its technical 
sense, and the attempted conveyance to the heirs is 
not by way of remainder, it is invalid for lack of 
any ascertained grantee.^^ And it has been decided 
that, for the same reason, a conveyance, not by way of 
remainder, to unborn children of a particular person, 
is invalid.^* The validity of such a conveyance when 
by w^ay of contingent remainder, has on the other 
hand been freely recognized.^-^ 

At common law, that is, before the Statute of 
Uses, such a conveyance to persons not ascertained or 
not in being was valid only if by way of contingent 
remainder, since otherwise there was no person to 
whom the livery of seisin could be made,^*' and this 
distinction between a conveyance by way of remainder 
and not by way of remainder was applied even in the 

S. E. 773 (Mclver, C. J. dissent- Ga. 210, 84 Am. St. Rep. 233, 

ing). 38 S. E. 827; Faloon v. Sim- 

52. Tharp v. Yarbrough. 79 Ga. shauser, 130 111. 649, 22 N. E. 
382, 11 Am. St. Rep. 439; Sey- 835; Morris v. Caudle, 178 111. 
mour V. Bowles, 172 111. 520. 50 9, 44 L. R. A. 489, 69 Am. St. 
N. E. 122; Tinder v. Tinder, 131 Rep. 282, 52 N. E. 1036; Miller 
Ind. 381, 30 N. E. 1077; Heath v. McAlister, 197 111. 72 64 N. 
V. Hewitt, 127 N. Y. 166; 13 L. E. 254; Dupree v. Dupree, 45 N. 
R. A. 46, 24 Am. St. Rep. 438; C. 164, 59 Am. Dec. 590; Newsom 
Huss V. Stephens, 51 Pa. St. 282; v. Thompson, 2 Ired. L. (24 N. 
Robertson v. Wampler, 104 Va. Car.) 277; Lillard v. Ruckers, 9 
380, 51 S. E. 835. Yerg. (Tenn.) 64. 

53. Duffield v. Duffield 268 111. 55. Co. Litt, 378a; Norton. 
29, 108 N. E. 673; Tinder v. Tin- Deeds, 319; Boraston's Case, 3 
der, 131 Ind. 381, 30 N. E. 1077; Co. Rep. 20a; Sharman v. Jack- 
Booker V. Tarwater, 138 Ind. .'!85, son, 30 Ga. 224; Mudge v. Ham- 
37 N. E. 979; Hall v. Leonard. 1 mill, 21 R. I. 283, 79 Am. St. Rep. 
Pick. (Mass.) 27; Morris v. Ste- 802, 43 Atl. 544. See cases cited 
phens, 46 Pa. St. 200. But see mite, § 136 (b). 

Bailey v. Willis. 56 Tex. 212. 56. Ante, § 156. 

54. Davis v. Hollingsworth, 113 



1596 Eeal Propeety. [§ 434 

case of a conveyance by grant,"*^ in analogy, presumably, 
to the case of a conveyance by livery, since there was 
nothing in the nature of a common4a,w grant to sug- 
gest such a distinction. Consequently the modern de- 
cisions, in recognizing this distinction, are supported 
by the common law authorities. It is somewhat dif- 
ficult, however, to see why the validity of a conveyance 
in favor of the heirs or unborn children of A should, 
at the present day, be dependent on whether, by the 
same instrument, a particular estate is created in favor 
of B ; and such a conveyance might, it is submitted, 
well be sustained, without any particular estate, as 
creating an executory interest, valid by force of the 
Statute of Uses, or local state statute,^^ to mature into 
an estate upon the ascertainment or coming into exis- 
tence of the grantees named. A devise to unascertained 
or non existent persons, if not offending the Rule 
against Perpetuities, is perfectly valid,^'-^ and there 
would appear to be no sufficient reason for applying 
a different rule in this regard to a conveyance inter 
vivos. The language of some of the cases, above cited, 
would seem to suggest that the asserted invalidity of a 
conveyance to unascertained or non existent persons is 
based on the theory that a conveyance by deed is 
necessarily a bilateral transaction, and that conse- 
quently the grantee must be in existence at the time of 
the delivery of the instrument in order that there be 
an acceptance thereof.'"' Even the courts, however, 
which i)rofess to recognize the necessity of the ac- 
ceptance of a conveyance, in etfect admit that a con- 
veyance is perfectly valid although the grantee is 
an infant, mentally and legally incapable of acceptance,*''^ 
and if the impossibility of acceptance dispenses mth 
its necessity when such impossibility arises from per- 

57. Perkins, §§ 52, 53; Shep- 59. Atife, § 160. 
pard's Touchstone, 235; Bacon's 60. Post. § 463. 
Abridgment, Grant (C). 61. Post, § 463, note 18. 

58. Ante, §§ 156-158. 



§ 434] Transfer Inter Vivos. 1597 

soiial incapacity, such impossibility might well have 
the same effect when arising from the uncertainty or 
non existence of the person whose acceptance is other- 
wise required. 

A conveyance to a corporation not yet formed has 
been regarded as invalid for lack of an existent and 
ascertained gTantee.*^^ But, it is submitted, such a 
conveyance might, apart from the Rule against Per- 
petuities, be supported as creating an executory in- 
terest, to become vested upon the formation of the 
corporation. In so far, however, as the conveyance 
might be intended to operate in favor of a corporation 
to be formed at a future time, however remote, it would 
be invalid under the Eule against Perpetuities. 

A conveyance to the inhabitants of a certain dis- 
trict or municipal division has been regarded as in- 
valid, on the ground that there is a lack of reasonable 
certainty in the grantee,*^^ and a like view has been 
taken of a conveyance to the owners of the building 
adjoining the land conveyed on the west side thereof."^ 

Neme of grantee left blank. At the common 



law, a deed, that is, an instrument under seal, if de- 
livered with a blank therein as to an essential part, is 
void, although this blank be afterwards tilled by one 
having parol authority from the maker of the deed so 
to do; this conclusion being ordinarily based on the 
theory tliat an authority to execute and deliver an 
instrument under seal must itself be under seal.''^ 
Applying the rule referred to, it has been held, in 
several states, tliat a conveyance under seal, which is 

62. Phelan v. San Francisco, 52 Atl. 1042; Co. Litt. 3a. 

6 Cal. 531; Harriman v. Southam, 64. Schaidt v. Blaul, 66 Md. 

16 Ind. 190; Douthitt v. Stinson, 141, 6 Atl. 669. 

63 Mo. 268; Utah Optical Co. v. 65. Sheppard's Touchstone, 54; 

Keith, 18 Utah, 464; RusseH v. Comyn's Dig. "Fait" (A 1); Hib- 

Topping 5 McLean, 194, Fed. blewhite v. McMorine, 6 Mee.s. 

Cas. 12163. & W. 200, 

63. Hunt V. Tolles, 75 Vt. 48, 

R. P.— 26. 



1598 



Real Property. 



[^ 434 



sought to be delivered with the name of the grantee 
left blank, is invalid, although the blank is afterwards 
filled up by another person acting under authority from 
the gTantor, if that authority was not under seal.^^ 
In other states, it has been held, without reference to 
the question of a seal, that an authority subsequently 
to insert the grantee's name must be in writing.'^" In 
still other states there are decisions to the effect that 
the name of the grantee, if left blank, may be inserted 
under an oral authority, or an authority merely in- 
ferred from the circumstances of the case,^* these de- 



66. Ingram v. Little, 14 Ga. 
173, 58 Am. Dec. 549; Burns v. 
Lynde, 6 Allen (Mass.) 305; 
Macurda v. Fuller, 225 Mass. 341, 
114 N. E. 366; Davemport v. 
Sleight, 19 N. C. 381; Rollins v. 
Ebbs, 137 N. C. 355, 2 Ann. Cas. 
327, 49 S. E. 341; Preston v. 
Hull, 23 Gratt. (Va.) 600. 

67. Adamson v. Hartman, 40 
Ark. 58; Upton v. Archer, 41 Cal. 
85, 10 Am. Rep. 266; Whitaker 
V. Miller, 83 111. 381; Mickey v. 
Barten, 194 111. 446, 62 N. E. 
802; Ayres v. Probasco, 14 Kan. 
175; Lund v. Thackery, 18 S. 
D. 113, 99 N. W. 856. See Lind- 
sley V. Lamb, 34 Mich. 509. 

68. Swartz v. Ballou, 47 Iowa, 
188, 29 Am. Rep. 470; Hall v. 
Kary, 133 Iowa 465, 119 Am. St. 
Rep. 639, 110 N. W. 930; Bank 
V. Fleming, 63 Kan. 139, 65 Pac. 
213; Guthrie v. Field, 85 Kan. 
58, 37 L. R. A. (N. S.) 326, 116 
Pac. 217 (dictum) ; Inhabitants 
of South Berwick v. Huntress, 
53 Me. 90; Board of Education of 
Minneapolis v. Hughes, 118 Minn. 
404, 41 L. R. A. (N. S.) 637, 136 
N. W. 1095; Field v. Stagg, 52 
Mo. 534, 14 Am. Rep. 435; Thum- 
mel V. Holden, 149 Mo. 677, 51 



S. W. 404; Hemmenway v. Mu- 
lock, 56 How. Pr. (N. Y.) 38; 
Cribben v. Deal, 21 Ore 211, 28 
Am. St. Rep. 746, 27 Pac. 1046; 
Threadgill v. Butler, 60 Tex. 599; 
Clemmons v. McGeer, 63 Wash. 
446, 115 Pac. 1081; Lafferty v. 
Lafferty, 42 W. Va. 783, 26 S. E. 
262; Schintz v. McManamy, 33 
Wis. 299; Friend v. Yahr, 126 
Wis. 291 1 L. R. A. (N. S.) 891, 
110 Am. St. Rep. 924, 104 N. W. 
997 

The tendency is to presume 
authority for this purpose in 
the person to whom the instru- 
ment is handed by the grantor. 
Creveling v. Banta, 138 Iowa. 47. 
115 N. W. 598; Barras v. Barras, 
191 Mich. 473, 158 N. W. 192; 
Board of Education v. Hughes, 
118 Minn. 404, 41 L. R. A. (N. 
S.) 637, 136 N. W. 1095; Mont- 
gomery V. Dresher, 90 Neb. 632, 
38 L. R. A. (N. S.) 423, 134 
N. W. 251; Lamar v. Simpson, 1 
Rich. Eq. (S. C.) 71, 42 Am. 
Dec. 345; Clemmons v. McGeer, 
63 Wash. 446, 115 Pac. 1081; 
Friend v. Yahr 126 WMs. 291, 104 
N. W. 997, 1 L. R. A. (N. S.) 
891, 110 Am. St. Rep. 924, 104 N. 
W. 997. 



434] Transfer Inter Vivos. 1599 

cisions ordinarih^ referring to the common law re- 
quirement of an authority under seal as technical and 
unreasonable. These decisions do not howev.er meet 
the difficulty presented by the statutes in force in a 
number of states requiring a conveyance to be signed 
by the grantor or by an agent "authorized in writing." 
In the presence of such a statute it is difficult to under- 
stand how such an essential part of the conveyance 
as the designation of the grantee can be the act of an 
agent without written authority. And especially is this 
the case when the oral authority is one to insert, not 
the particular name which was inserted, but any name 
w^hich it might thereafter become desirable to insert. 
Nor do these decisions appear to meet the difficulty, 
hereafter referred to,^^ arising from the requirement 
of delivery. 

In case one to whom the instrument is entrusted, 
with authority to insert the name of the grantee, in- 
serts such name and then hands the completed instru- 
ment to the grantee named, the question arises, when, 
if ever, is the instrument to be regarded as having been 
delivered. Was delivery effected by the action of 
the grantor in handing the instrument to the agent, 
or was it effected by the action of the agent in handling 

When the instrument must be Simms v. Hervey, 19 Iowa, 273, 
executed by the grantor, and 297, if this rule were adopted 
cannot be executed through an has transpired, and deeds or 
agent, as in some states is the mortgages to land are now "float- 
case In a conveyance by a mar- ed" almost as readily as com- 
ried woman, blanks in the con- mercial paper, and the name of 
veyance cannot be filled by a the grantee Inserted when it (s'ic) 
third person acting under oral, finds an owner who concluding 
or even sealed, authority. Drury to retain the land elects to In- 
V. Foster, 2 Wall. (U. S.) 24 17 sert his name as grantee. The 
L. Ed. 780. practice, while not conserving a 
69. Post, § 461, note 57. single laudable purpose, has prov- 
In Creveling v. Banta, 138 Iowa en an efficient help in the per- 
47, 115 N. W. 598, Ladd, C. J. petration of fraud and the con- 
remarked as follows: "What was cealment of property from the 
evidently feared by Dillon J., in pursuit of creditors." 



1600 Real Propeety. [§ 434 

the instrument to the grantee. The former view ap- 
pears to be excluded by the difficulty of conceiving of 
the legal delivery as a conveyance of an instrument 
which lacks the name of a grantee. Such an instru- 
ment is necessarily incapable of legal operation, and 
to assert that such an instrument has been delivered, 
that is, that an intention has been indicated that it shall 
immediately be legally operative/" appears to involve an 
al^solute incompatibility of ideas. In accord with this lat- 
ter view are the occasional decisions or judicial statements 
that the grantee's name must be inserted by the agent 
l^efore he "delivers" the instrument, or before he de- 
livers it to the grantee,"^ ^ this evidently involving the 
view that it is the physical transfer by the agent, and 
not the transfer to the agent, which operates as de- 
livery. On the other hand there are decisions that an 
agent to whom the instrument is handed, with authority 
to insert such name as he may choose as that of the 
grantee, may insert his own name, and thereby render 
the instrument operative in his favor,"^ and these 
do not accord with the view that the instrument can- 
not be delivered until the grantee's name is inserted, 

70. Post. § 461. ual transfer of the instrument 

71. Allen v. Withrow, 110 L. to the agent involves in effect 
S. 119, 28 L. Ed. 90; Osby v. a delivery conditioned upon the 
Reynolds, 260 111. 576, 103 N. E. filling of the blank (see post, § 
556; Carr v. McColgan, 100 Md. 462), so that the instrument is 
462, 476, 60 Atl. 606; Derry v. to be regarded, so soon as the 
Fielder, 216 Mo. 176, 115 S. W. blank is filled, as having been 
412; Chauncey v. Arnold, 24 N. delivered at the time of such 
Y. 330; Cribben v. Deal, 21 Ore. transfer. This does not, how- 
211, 28 Am. St. Rep. 746, 27 Pac. ever, obviate the difficulty in- 
1046; Telschow v. Quiggle. 74 volved in the idea of even the 
Ore. 105, 145 Pac. 11; Duncan v. conditional delivery of a con- 
Hodges, 4 McCord (S. C.) 239, 17 veyance lacking a grantee. 

Am. Dec. 734. See Lockwood v. 72. Burk v. Johnson, 146 Fed. 

Bassett, 49 Mich. 546, 14 N. W. 209; Augustine v. Schmitz, 145 

492. Iowa 591, 124 N. W. 607; Ein- 

In Halvorsen v Mullin, 179 stein v. Holladay-Koltz Land & 

Iowa 293. 156 N W. 289, the. Lumber Co., 132 Mo. App. 82, 111 

view is expressed that the man- S. W. 859 . 



§ 434] Transfer Inter Vivos. 1 601 

or with the view that the delivery is to be regarded as 
made by the agent on behalf of the grantor. The con- 
ception of a conveyance becoming operative by reason 
of a delivery made by the grantee as agent of the 
grantor is an almost impossible one. Furthermore, if 
the one who is given authority to fill the blank is also 
the grantor's agent for the purpose of making delivery 
of the instrument when completed, he should, it is 
submitted, have formal written authority for this 
purpose, a power of attorney, as it is ordinarily termed, 
the delivery being a part of the execution of the 
instrument.''''^ 

Even though a merely oral authority to insert 
the name of the grantee, and to make delivery of the 
instrument when thus completed, be regarded as in- 
sufficient, a view which, though not in accord with the 
weight of authority in this country, is conceived to 
be the sounder on principle, nevertheless an instrument 
completed and delivered under such an insufficient 
authority might in some cases be supported on the 
theory of estoppel, in favor eitlier of the person whose 
name is inserted in the instrument,'^^ or in favor of a 
bona fide purchaser from him for value. '^^ One claim- 
ing under a conveyance has frequently no means of 
determining whether the grantee's name was inserted 
before or after its execution, and unless he is to be 
protected on the principle of estoppel, there is little 
safety in purchasing property in any jurisdiction where 
the validity of an oral authority to insei't the gi-antee's 
name is denied. 

73. Post, § 461, notes 53-58. v. Wells, 15 Neb. 298, 18 N. W. 

74. Quinn v. Brown, 71 Iowa 132. See El Dorado Exchange 
376, 34 N. W. 13; McCleery v. Nat. Bank v. Fleming, 63 Kan. 
Wakefield, 76 Iowa, 529, 2 L. R. 139, 65 Pac. 213, and jwst, this 
A. 529, 41 N. W. 210; State v. section, note 77. 

Matthews, 44 Kan. 596, 10 L. R. 75. Swartz v. Ballou, 47 Iowa. 

A. 308, 25 Pac. 36; Phelps v. Hall v. Kary, 133 Iowa, 468, 119 

Sullivan, 140 Mass. 36, 54 Am. Am. St. Rep. 639, 110 N. W. 930; 

Rep. 442, 2 N. E. 121; Pence v. Ragsdale v. Robinson, 48 Tex. 

Arbuckle, 22 Minn. 417; Garland 379. 



1602 Real Pboperty. [§ 434 

In case a blank as to the name of the grantee is 
filled by a person who has no authority for the purpose, 
either oral or in writing, or it is filled in a manner 
contrary to the directions of the grantor, the con- 
veyance is, it is agreed, invalid as regards a person 
who is aware of the circumstances of the transaction.''' 
As regards an innocent grantee or purchaser, on the 
other hand, it might frequently be valid, on the ground 
of estoppel'^^ provided at least he pays value.'^^ If the 
grantor chooses to place in the hands of another person 
an instrument duly signed and sealed by him, but which 
is otherwise in an incomplete state, and such other ex- 
ceeds his authority in making the instrument apparently 
complete, the grantor, and not an innocent purchaser, 
should be the one to suffer on account thereof. The 
grantor should be estopped, in such case, to deny that 
the instrument is his act and deed."^^ 

When the grantor, instead of handing the blank 
instrument to another, retains it, and it later leaves 
his custody without his consent, the question whether 
it is effective in the hands of a bona fide purchaser 
would seem to depend primarily upon whether the con- 

76. Ayers v. Probasco, 14 Kan. So. 425; Vica VaUey & C. R. v. 
175; Arguello v. Bours, 67 Cal. Mansfield, 84 Cal. 560, 24 Pac. 
447, 8 Pac. 49; Lund v. Thackery, 145; Whitaker v. MiUer, 83 111. 
18 S.. D. 113, 99 N. W. 856; 381; Thummel v. Holden, 149 Mo. 
Schintz V. McMenamy, 33 Wis. 677, 51 S. W. 404; Westlake v. 
299. Dunn, 184 Mass. 260, 100 Am. St. 

77. Creveling v. Banta, 138 Rep. 557, 68 N. E. 212; Tel- 
Iowa, 47, 115 N. W. 598; Augus- schow v. Quiggle, 74 Ore. 105, 
tine V. Schmitz, 145 Iowa, 591, 145 Pac. 11; Swan v. N. B. 
124 N. W. 617; State v. Matthews, Australian Co., 2 Hurlst. & Colt. 
44 Kan. 596, 10 L. R, A. 308, 25 175. 

Pac. 36; Guthrie v. Field, 85 78. In Van Dyke y. Van Dyke, 

Kan. 58, 116 Pac. 217, 37 L. R. 119 Ga. 47 S. E. 192, 830, in which 

A. (N. S.) 326; Pence v. Ar- the conveyance was regarded as 

buckle, 22 Minn. 417; Garland v. invalid there appears to have 

Wells, 15 Neb. 298, 18 N. W. 132; been no consideration paid. 

Clemmons v. McGeer, 63 Wash. 79. See the admirable discus- 

446, 115 Pac. 1081. But see sion In Ewart, Estoppel, 449, et 

Barden v. Grace, 167 Ala. 453, 52 seq. But the cases referred to 



§ 434] Transfer Intee Vivos. 1603 

duct of the grantor was, in the particular case, lacking 
in reasonable care.^° 

Substitution of other grantee. The question 



of the validity of a conveyance, the name of the grantee 
in which was inserted after it left the grantor's hands, 
in a space left blank for this purpose, was discussed 
above. ^^ A question of a somewhat analogous nature 
concerns the validity of a conveyance, when the name 
of the grantee was inserted after delivery, not in a 
space originally left blank for the purpose, but by 
way of substitution for another name which appeared 
in the instrument at the time of delivery. Occasionally 
a purchaser of land, with a view to the saving of 
expense and trouble, upon reselling the land to another, 
merely erases his own name and inserts that of the 
purchaser, so that, when the instrument is re- 
corded, the title appears to have passed 
direct from his vendor to the last purchaser. Such an 
alteration, even if made with the consent of both the 
grantor and grantee, and in the presence of both, 
cannot operate, it would seem, to divest the title 
vested by the delivery in the original grantee,^^ and 
the fact that the grantor purports to make a second 
delivery after the alteration cannot well change the 
result. To divest one's title to land something more 
is necessary tlian a conveyance by his grantor to a 
third person. It has been said that if the original 
grantee himself procures the change to be made he 
cannot thereafter claim title in hiniself,^^ but this is 

in the latter portion of note 77 471, 9 Ann. Cas. 481, 77 N. E. 

st^pra are opposed to any such 942; Carr v. F'rye, 225 Mass. 531, 

notion of estoppel. 114 N. E. 745. 

80. See 4 Wigmore, Evidence, 83. Abbott v. Abbott, 189 111. 
§ 2419; Van Amringe v. Morton 488, 82 Am. St. Rep. 472, 59 N. 
4 Whart. (Pa.) 382; Telschow v. E. 958. The statement appears 
QHiiggle, 74 Ore. 105, 145 Par. 11. to have been uncalled for, as 

81. Ante, this section, notes the court found that the change 
65-80. w^as made before delivery. 

82. Gibbs v. Potter, 166 Ind. 



1G04: Real. Property. [§ 435 

so, it is submitted, only in so far as the elements of an 
estoppel are present.^* 

The substitution of another name as that of the 
grantee, without the grantor's consent, can obviously 
not operate to vest title in the person whose name 
is so substituted.'*'' One conveying to A cannot, without 
his consent, be made to convey to B. And likewise the 
substitution of another name as that of the grantee, 
without the consent of the original grantee, cannot 
have such an effect, of divesting the title of the origi- 
nal grantee.^" 

§ 435. Words of conveyance. Though particular 
words are appropriate to particular classes of con- 
veyances, it is not necessary that these particular 
words be used, and the conveyance is valid, provided 
it contains any words signifying an intention to trans- 
fer the land or the grantor's interest therein.^" The 
phrase "give, grant, bargain, and sell" is frequently 
employed, and is no doubt sufficient for any class of 
conveyance, in view of the rule before referred to, that 
a conveyance will be upheld if possible, though it can- 
not operate as intended. It is necessary, however, that 

84. See Goodwin v. Norton, 87. Shove v. Pincke, 5 Term. 
92 Me. 532, 43 Atl. 111. R. 124; Peters v. McLaren, 218 

85. HoUis V. Harris, 96 Ala. Fed. 410, 134 C. C. A. 198; San 
288; Wagle v. Iowa State Bank, Francisco & 0. R. Co. v. City 
Iowa 156 N. W. 991; Wilds v. of Oakland, 43 CaL 502; Yeager 
Bogan, 55 Ind. 331 (senible) ; v. Farnsworth, 163 Iowa, 537; 
Perry v. Hackney, 142 N. C. 368, 145 N. W. 87; Howe v. Warnack. 
115 Am. St. Rep. 741, 9 Ann. 4 Bibb. (Ky.) 234; Gordon v. 
Cas. 244, 55 S. E. 289; Goodwin Haywood, 2 N. H. 402; Hutchins 
V. Norton, 92 Me. 532. 43 Atl. v. Carleton, 19 N. H. 487; Jack- 
Ill son V. Root, 18 Johns. (N. Y.) 60; 

86. John V. Hatfield, 84 Ind. Lynch v. Livingston, 6 N. Y. 422; 
75 (semble); HiU v. Nisbet, 58 Folk v. Varn, 9 Rich. Eq. (S. C.) 
Ga. 586 (semble); Clark v. Cress- 303; Evenson v. Webster, 3 S. 
well, 112 Md. 339, 21 Ann. Cas. D. 382, 44 Am. St. Rep. 802, 53 
338, 76 Atl. 579; Simpkins v. N. W. 747; Hanks v. Folsom, 11 
Windsor, 21 Ore. 382, 28 Pac. Lea (Tenn.) 555. 

72 (semMe). 



§ 436] Transfer Inter Vivos. 1605 

the conveyance contain words showing an intention to 
transfer the grantor's interest,®* and the words "sign 
over"*^ and ''warrant and defend" have been held 
to be insnfficient,'"^ as have the words "does wilL""^ **- 

§ 436. Exceptions and reservaticns. The purpose 
and effect of an exception in a conveyance is to except 
or exclude from the operation of the conveyance some 
part of the thing- or things covered by the general words 
of description therein, as when one conveys a piece of 
land, excepting a certain part thereof, or the houses 
thereon, it being properly always a thing actually 
existent.*^^ A reservation in a conveyance, as defined 
by the common-law writers, is a clause by which the 
grantor of the land creates, in favor of himself, some 
new thing "issuing out of" the land, and not previously 
in existence, such as a rent, or some other service of a 
feudal or quasi feudal character.^"' 

The expressions "reserve" and "reservation" have 
been applied, in a somewhat untechnical sense, in connec- 
tion with a clause in a conveyance by which the 

88. Webb v. MuUins, 78 Ala. R. Co., 132 Iowa, 129, 109 N. W. 
Ill; BeU V. McDuffie, 71 Ga. 264; 453; Brown v. Anderson, 88 Ky. 
Davis V. Davis, 43 Ind. 561; 577, 11 S. W. 607: Snoddy v. 
Brown v. Manter, 21 N. H. 528, Bolen, 122 Mo. 479, 24 L. R. A. 
53 Am. Dec. 223; Weinrich v. 507, 24 S. W. 142 ; 25 S. W. 932; 
Wolf, 24 W. Va. 299; Freuden- Edwards v. Brusha, 18 Okla. 234. 
berger Oil Co. v. Simmons, 75 W. 90 Pac. 727. See Truett v. 
Va. 337, Ann. Cas. 1918A 873, 83 Adams, 66 Cal. 218, 5 Pac. 96; 
S. E. 995. Brown v. Allen, 43 Me. 590; King 

89. McKinney v. Settles, ;;1 v. Wells, 94 N. C. 344; Woodcock 
Mo. 541. V. Estey, 43 Vt. 515. 

90. Hummelman v. Mounts. 87 An exception in a covenant of 
Ind. 178. title is not necessarily an excep- 

91-92. Caldwell v. Caldwell, tion or reservation for the pur- 

140 Ga. 736 ,79 S. E. 853. poses of the conveyance. Wen- 

93. Co. Litt, 21a; Sheppard's dall v. FLsher. 187 Mass. 81, 72 

Touchstone, 77 et seq.; Washing- N. E. 322; Towns v. Brown, (Ky.) 

ton Mills Emery Mfg. Co. v. Com- 114 S. W. 773. 
mercial Fire Ins. Co. (C. C), 94. Co. Litt. 47a; Sheppard's 

13 Fed. 646; Spencer v. Wabash Touchstone, 8(); Doe d. Douglas 



1606 Real Property. [§ 436 

grantor retains a power of disposition over the land 
conveyed,^^ by which he is given a right to repurchase 
the property j^*^ by which he retains the right to re- 
cover damages for jiast injuries to the property con- 
veyed,^" and by which he retains a limited estate in 
the land,^^ and perhaps in other cases of stipulations 
in behalf of the grantor. Such cases evidently do not 
fall within the common-law definition of a reservation, 
but the use of the expression in these comiections 
is highly convenient, and appears, in the ordinary 
case, to be free from objection. 

As creating easement. The nature of an 

exception and of a reservation being, at common law, 
such as above described, neither was strictly appropriate 
for the creation, on the conveyance of land, of an 
easement or right of profit in the land in favor of the 
grantor, and, accordingly, the English courts have de- 
cided that such an attempted exception or reservation 
must be construed as a grant back of an easement by 
the grantee of the land.'^'' In this country, however, 
a different view has been taken, and such a right has 
almost invariably been regarded as the proper sub- 
ject of a reservation,^ and sometimes even of an ex- 

V. Lock, 3 Adol. & El. 743; Dur- 436 Ann. Cas. 1917B, 116, 149 N. 

ham & S. Ry. Co. v. Walker, W. 613; Vessey v. Dwyer, 116 

2 Q. B. 940. Minn. 245, 133 N. W. 613; Mer- 

95. See Varner v. Rice, 44 rill v. Publishers' Paper Co. 77 
Ark. 236; Bouton v. Doty, 69 N. H. 285; 90 Atl. 786; In re 
Conn. 531, 37 Atl. 1064; Horn v. Dixon, 156 N. C. 26, 72 S. E. 71; 
Broyles, (Tenn. Ch.) 62 S. W. Rembert v. Vetoe, 89 S. C. 198, 
297; Van Ohlen's Appeal, 70 Pa. 71 S. E. 959. 

57. 99. Durham & S. Ry. Co. v. 

96. Saddler v. Taylor, 49 W. Walker, 2 Q. B. 940; Wickham 
Va. 104, 38 S. E. 583. v. Hawker, 7 M. & W. 63; 

97. Richardson v. Palmer, 38 Corporation of London v. Riggs. 
N. H. 212; Shepard v. Man- 13 Ch. Div. 798. 

hattan Ry. Co. 169 N. Y. 160, 1. Chappell v. New York, N. 

62 N. E. 151; Maurer v. F^ied- H. & H. R. Co., 62 Conn. 195. 

man, 197 N. Y. 248, 90 N. E. 814. 17 L. R. A. 420, 24 Atl. 997; 

98. Wood V. Logue, 167 Iowa Haggerty v. Lee, 50 N. J. Eq. 



<§ 436] Transfer Inter ^''Ivus. 16<^7 

ceptioii.- The view that a right of use or profit may 
be created by reservation seems to involve but a slight 
extension of the common law conception of a reserva- 
tion, and it is more or less justified by the fact that in 
this country the conveyance is usually executed by the 
grantor alone, so that the effect of regarding a stipula- 
tion for such a right in favor of the grantor as a 
grant back, as is done in England, would usually result 
in rendering it invalid. But to describe such a stipu- 
lation as an exception involves a complete departure 
from the common law view of tht nature of an ex- 
ception, as being in etfect merely a part of the descrip- 
tion of what is conveyed. 

In so far as the courts, thus recognize the pos- 
sibility of utilizing an exception as well as a reserva- 
tion for the purpose of creating an easement, it being 
conceded that the particular expression used, w^hether 
'' except" or "reserve" has little weight in this con- 
nection,^ it was to be anticipated that the determination, 
in any particular case, whether there is the reservation 
of an easement, or the exception of an easement, would 
be attended ^\^th considerable difficulty. In some de- 
cisions, upon the assumption that the word *' heirs" is 
necessary for the creation of an easement in perpetuity, 
if it is by means of a reservation. Mobile not necessary 
if it is by means of an exception,^ the absence of such 
word has been regarded as showing that the language 
used in the particular case was intended to operate 
as an exception and not a reservation,^ a view which 

464, 26 Atl. 537; Claflin v. Boston Clafiin v. Boston & A. R. Co., 

& A. R, Co., 157 Mass. 489, 20 157 Mass. 489, 20 L. R. A. 63S, 

L. R. A. 638, 32 N. E. 659; Graf- 32 N. E. 659; Bridger v. Pierson, 

ton V. Moir, 130 N. Y. 465, 27 Am. 45 N. Y. 601. See ante, § 362. 

St. Rep. 533, 29 N. E. 974; 3. Post, this section, note 8. 

Kister v. Reeser, 98 Pa. St. 1, 4. Ante, § 362. 

42 Am. Rep. 608. See cases cited 5. Winthrop v. Fairbanks, 41 

post, this section, notes 5-8. Me. 307; Hall v. Hall, 106 Me. 

2. Inhabitants of Winthrop v. 389, 76 Atl. 705; White v. N. 

Fairbanks, 41 Me. 307; Ring v. Y. & N. E. R. Co., 156 Mass. 181. 

Walker. 87 Me. 550, 33 Atl. 174; .",0 N. E. 612; Hamlin v. Kail- 



1608 Real Propeety. [§ 436 

involves an imputation of intention to the person using 
the words which is seldom, if ever, in accord with 
his actual intention. Some courts, on the other hand, 
regard as an exception a clause undertaking to create 
in favor of the grantor of the land an easement cor- 
responding to a preexisting qi{asi easement, on the 
theory that in that case there is a retention by the 
grantor of a thing actually existent, while if the ease- 
ment sought to be created does not correspond to a 
preexisting quasi easement, the clause is to be regarded 
as a reservation, as undertaking the creation of a 
thing not before existent/' This latter distinction, 
though ingenious and readily capable of practical ap- 
plication, appears to ba without any foundation in 
principle. As heretofore explained,^ a quasi easement is 
said to exist when the owner of land uses part of his 
land for the benefit of another part, but this is merely 
a form of expression, and a quasi easement is not in 
itself a right recognized by the law. One uses part 
of his land for the benefit of another part by right of 
ownership, and not by reason of the existence of a 
quasi easement. Consequently an "exception" of an 
easement corresponding to a preexisting quasi ease- 
ment involves the creation of a new and distinct legal 
right to the same extent as a "reservation" of an 
easement not corresponding to a use previously made 
of the land conveyed. 

As above stated, in construing language creating, 
or attempting to create, rights in the land granted in 
favor of the grantor, the courts ignore the terms 
used, such as "except" and "reserve," and ordinarily 
consider it to constitute an exception or a reservation, 
according to the nature of the rights sought to be cre- 

road Co., 160 Mass. 459, 36 N. 76 Atl. 705 (semble) ; Claflin v. 

E. 200; Lipsky v. Heller, 199 Boston & M. R. R., 157 Mass. 

Mass. 310, 85 N. E. 453; Smith's 401; Foster v. Smith, 211 Mass. 

Ex'cr V. Jones, 86 Vt. 258. 84 411, 98 N. E. 693; Smith's Execu- 

Atl. 866 (sem-ble). v. Jones, 86 Vt. 258, 84 Atl. 866. 
6. Hall V. Hall, 106 Me. 389, 7. Ante. § 363 (b). 



§ 436J 



Transfer Inter Vivos. 



1609 



ated.^ Accordingly, applying what seems the proper 
distinction between an exception and a reservation, 
language which seeks to create rights in favor of the 
grantor in a certain jDart of the land will be regarded 
as constituting a reservation or an exception, according- 
ly as an easement in such part is created, or the owner- 
ship of such part is retained.^ And in case the con- 
veyance provides that the grantor shall have rights 
as to timber on the land, the court will consider merely 
whether the intention is that the grantor shall retain the 
ownership of the timber, or shall have only a right to 
come on the land to take timber, and will regard the 
provision as an exception or a reservation accordingly.^" 
And a stipulation as to minerals may be either a res- 
er^^ation of a right to take minerals, or an exception 
of the minerals in place. ^^ 



8. Webb V. Jones, 163 Ala. 
637, 50 So. 887; Van Slyke v. 
Arrowhead Reservoir & Power 
Co., 155 Cal. 675, 102 Pac. 816; 
Zimmerman v. Kirchner, 151 
Iowa 483, 131 N. W. 756; IVTc- 
Intire v. Lauckner. 108 Me. 443, 
81 Atl. 784; Claflin v. B. & A. R. 
R Co, 157 Mass. 489, 20 L. R. A. 
639, 32 N. E. 659; Martin v. 
Cook, 102 Mich. 267, 60 N. W. 
679; Smith v. Furbush, 68 N. H. 
123, 47 L. R. A. 226, 44 Atl. 398; 
Hagerty v. Lee, 54 N. J. L. 580, 
20 L. R. A. 631, 25 Atl. 319; 
Gill V. Fletcher, 74 Ohio St. 
295, 113 Am. St. Rep. 962. 78 
N. E. 433; Riefler & Sons v. 
Wayne Storage Water Power Co.. 
232 Pa. 282, 81 Atl. 300; Coal 
Creek Min. Co. v. Heck, 15 Lea 
(Tenn.) 497; Watkins v. Tucker, 
84 Texj 428, 19 S. W. 570; 
Bradley v. Virginia Ry. & Power 
Co., lis Va. 233, 87 S. E. 721: 
Stndebaker v. Beek, 83 Wash. 



260, 145 Pac. 225; Jones v. Hoff- 
man, 149 Wis. 30 134 N. W. 1046. 

9. Barnes v. Burt, 38 Conn. 
541; Wellman v. Churchill, 92 
Me. 193. 42 Atl. 352; Winston 
V. Johnson, 42 Minn. 398, 45 
N. W. 958; Jones v. De Lassus, 
84 Mo. 541; Langdon v. New 
York, 6 Abb. N. Cas. 314, 93 N. 
Y. 129; Towne v. Salentine. 92 
Wis. 404, 66 N. W. 395; Prichard 
V. Lewis, 125 Wis. 604, 1 L. R. 
A, (N. S.) 565, 110 Am. St. 
Rep. 873, 104 N. W. 989. 

10. Van Slyke v. Arrowhead 
Reservoir & Power Co) 155 Cal. 
675, 102 Pac. 816; Knotts v. 
Hydrick, 12 Rich. L. (S. C.) 317; 
Rich V. Zeilsdorff, 22 Wis. 544, 
99 Am. Dec. 81. 

11. Gill V. Fletcher, 74 Ohio 
St. 295, 113 Am. St. Rep. 962, 
78 N. E. 433: Snoddy v. Bolen, 
122 Mo. 479, 24 L. R. A. 507. 
24 S. W. 142, 25 S. W. 932; 
Barrett v. Kansas & Texas Coal 



IGIO 



IIeaLi Pkoperty. 



[§ ^'iO 



Reservation in favor of third person. At com- 
mon law a reservation of rent cannot, by the use of 
particular language, be made to operate in favor 
of a person other than the lessor or grantor.^^ This 
rule has been said to be based on the consideration that, 
since the rent reserved is a return or comi^ensation for 
the land granted, the one who grants the land is the 
only person entitled to the benefit of the reservation, 
and it was also said that a reservation of rent in favor 
of a stranger would involve the danger of mainte- 
nance.^^ A like view, that a reservation must be in 
favor of the grantor, has been asserted in connection 
with the reservation of an easement or right of prof- 
it,^ ^ but there are to be found occasional dicta or 
decisions to the effect that an easement may be re- 
served in favor of a person other than the g'rantor.^^ 



Co., 70 Kan. 649, 79 Pac. 150; 
Preston v. White, 57 W. Va. 278, 
50 S. E. 236; Whitaker v. 
Brown, 46 Pa. St. 197. 

12. Litt. § 346; Co. Litt. 143b, 
213b. See 1 Tiffany, Landlord 
& Ten., § 170. 

13. Gilbert, Rents 54. 

14. Washburn, Easements 34; 
Jackson v. Snodgrass, 140 Ala. 
365, 37 So. 246; Illinois Central 
R. Co., V. Indiana Cent. R. Co. 
85 111. 211; Stone v. Stone, 141 
Iowa 438, 20 L. R. A. (N. S.) 
221, 18 Ann. Cas. 799, 119 N. W. 
712; Beinlein v. Johns. 102 Ky. 
570, 44 S. W. 128; Herbert v. 
Pue, 72 Md. 307, 20 Atl. 182; 
Murphy v. Lee, 144 Mass. 371, 11 
N. E. 550; Haverhill Sav. Bank v. 
Griffin, 184 Mass. 419, 68 N. 
E. 839; Borst v. Empie, 5 N. Y. 
33; Beardslee v. New Berlin L. 
& P. Co., 207 N. Y. 34, 100 N. 
E. 434; Edwards v. Brusha, 18 
Okla. 234, 90 Pac. 727; Young's 



Petition, 11 R. I. 636; Brace v. 
Van Eps, 21 S. D. 65, 109 N. 
W. 147; Strasson v. Montgomery, 
32 Wis. 52. 

15. Lynch v. White, 85 Conn. 
545, 84 Atl. 326 (semile) ; White- 
law V. Rodney, 212 Mo. 540, 111 
S. W. 560; Litchfield v. Boogher, 
238 Mo. 472, 142 S. W. 302; City 
Club of Auburn v. McGeer, 198 
N. Y. 160, 91 N. E. 539 (semble) ; 
Gibbons v. Ebding, 70 Ohio St. 
298, 101 Am. St. Rep. 900, 71 
N. E. 720; Duross v. Singer, 224 
Pa. 573, 73 Atl 951. See Bark- 
hausen v. Chicago, M. & St. P. 
R. Co., 142 Wis. 292, 124 N. W. 
649, 125 N. W. 680. 

And a reservation of highway 
rights in favor of the public in 
no way a party to the convey- 
ance, has been assumed to be 
valid. Sullivan v. Eddy, 154 111. 
199. 40 N. E. 482; Edwards v. 
Brusha, 18 Okla. 234, 90 Pac. 
727; Tuttle v. Walker, 46 Me. 



<^ 436] Transfer Inter Vwos. 1611 

If one conveying laud to A undertakes by the same 
instrument to create an easement in the land in favor 
of B, there is, it would appear, not a reservation of 
an easement in favor of B but a grant thereof to him, 
that is, by one and the same instrument, the grantor 
undertakes to convoy land to one person and an ease- 
ment in the land to another. To this there would seem 
to be no objection on principle, provided the execution 
by him of the instrument is such as is required for the 
purpose of the grant of an easement, and provided 
further the courts can regard the words of reservation, 
as they do words of covenant, '"^ as equivalent to words 
of grant for this purpose, which, it would seem, in 
order to effectuate the intention of the parties, they 
may well do.^' It can liardly be questioned that a 
testator might create an easement in favor of one 
devisee over land devised to another by words of 
reservation, as well as by words of grant. ^^ 

There are several cases to the effect that an at- 
tempted reservation in favor of a third person may 
indirectly operate in his favor by excluding a part of 
the land from the operation of the conveyance, and 
so preventing the transferee from asserting any rights 
therein as against such person, ^^ to the effect, in other 
words, that if the grantor undertakes to reserve an 
easement in favor of a third person in a particular part 
of the land, that part of the land is excepted from the 
conveyance, and the grantee can consequently not as- 

280. See Elliot v. Small, 35 Walker, 2 Q. B. 940. Ante, this 

Minn. 396, 59 Am. Rep. 329, 29 section, note 99. 

N. W. 158. 18. There was no question 

16. Ante, § 361. suggested as to the validity of 

17. As in England words of such a reservation in Wiley v. 
reservation of an easement are Ball, 72 W. Va. 685, 79 S. E. 
construed as operating by way 659. 

of re-grant from the transferee 19. Bridger v. Pierson, 45 N. 

of the land. See Doe v. Lock, Y. 601; Bessom v. Freto, 13 Mek. 

2 Ad. & El. 743; Wickham v. (Mass.) 523; Hodge v. Boothby. 

Hawker 7 Mees. & W. 63; Dur- 48 Me. 68; Martin v. Cook, 102 

ham & Sunderland Ry. Co. v. Mich. 267, 60 N. W. 679. 



1612 Real Property. [§ 436 

sert any claim thereto as against such third person, or 
any other person, who may happen to be utilizing the 
land. It is, nevertheless, difficult to see how an at- 
tempted reservation of an easement can thus take 
effect as an exception, how, for instance, a reservation 
of a right of way thirty feet wide in favor of a third 
person can be regarded as an exception of a strip of 
land thirty feet wide.^- Regarding it merely as a 
matter of construction, such a view would seem to 
violate the recognized rule^^ that words of exception 
or reservation are to be construed in favor of the 
grantee rather than of the grantor. Apparently op- 
posed to the cases referred to are several decisions 
that the fact that the grantor in a conveyance of land 
undertakes to reserve a strip of the land in favor of 
the public for use as a highway does not prevent the 
''fee" in such strip, that is, the ownership thereof, 
from passing under the conveyance,-^'* When there is 
in terms an exception or reservation of an easement 
in favor of a third person, which easement is already 
existent, the exception or reservation, so called, is not 
effective as such, since the rights of such person are 
independent of whether the owner of the land refers 
to such rights in his conveyance of the land. Con- 
sequently the statement, occasionally found, that the 
reservation of an existing easement in favor of a 

20. In Young Petitioner, 11 Brown,— Ky.) — 114 S. W. 773; 
R. I. 636, it was held that a Massey v. Warren, 52 N. C. 
clause undertaking to vest in 143; Klaer v. Ridgway, 86 Pa. 
a third person a right to take St. 529. 

timber could not be upheld as 21a. Sullivan v. Eddy, 154 111. 

an exception, and was void. 199, 40 N. E. 482; Edwards v. 

21. Wiley v. Sirdorus, 41 Brusha, 18 Okla. 234, 90 Pac. 
Iowa 224; Wellman v. Churchill, 727; Cincinnati v. Newell. 7 
92 Me. 193, 42 Atl. 352; Derby Ohio St. 37; Bolio v. Marvin, 130 
v. Hall, 2 Gray (Mass.) 236; Mich. 82, 89 N. W. 563; Elliot 
Bolio v. Marvin. 130 Mich. 82, v. Small, 35 Minn. 396, 59 Am. 
89 N. W. 563; Duryea v. New Rep. 329, 29 N. W. 158; Tuttle 
York, 62 N. Y. 592; Towns v. v. Walker, 46 Me. 280. 



§ 436] Transfer Ixter Vivos. 1613 

third person constitutes an exception-- is, it is sub- 
mitted, somewhat lacking in accuracy. In so far as 
the language of the conveyance may be construed as ex- 
cepting a part of the land, when there was previously 
merely an easement in a third person in such part,^^ 
the language does operate as an exception, but it does 
not operate in favor of such third person, since he 
merely retains the easement which he previously had. 
Likewise the langiiage operates as an exception in 
favor of the grantor when it in terms excepts an as- 
certained part, and erroneously states that such part 
has been sold or conveyed to another.-^ 

As above stated,-*'^ the language of reservation is 
not infrequently employed for the purpose of creating 
in the grantor a less estate than that conveyed, as when 
one conveys an estate- in fee simple "reserving" an 
estate for his life. Such a clause is not a reservation, 
according to the common-law conception of the term, 
but it has occasionally been referred to as such for the 
purpose of the general rule that a reservation can 
operate only in favor of the grantor, with the result 
that in a conveyance in fee simple, for instance, an at- 
tempted "reservation" of a life estate in favor of a 
member of the grantor's family other than himself 
has been regarded as invalid.-^'' It may be questioned, 

22. Stockwell v. Coullard, 129 way) ; Contra. Derby v. HaU, 2 
Mass. 231; Wood v. Boyd, 145 Gray (Mass.) 236; Gould v. 
Mass. 176, 13 N. E. 476; State Howe, 131 111. 490, 23 N. E. 
V. Wilson, 42 Me. 9; Richardson 602; Richardson v. Palmer, 38 
V. Palmer, 38 N. H. 212; Brid- N. H. 212. See note 20 Harv. Law 
ger V. Pierson, 45 N. Y. 601; Rev. at p. 574. 

Beardsley v. New Berlin Light 24. Arabs v. Chicago, St. P., 

& Power Co., 207 N. Y. 34, 100 M. & O. Ry. Co., 44 Minn. 266, 

N. E. 434; Bartlett v. Barrows, 46 N. W. 321; Roberts v. Robert- 

22 R. I. 642, 49 Atl. 31. son, 53 Vt. 690. See Stone v. 

23. Reynolds v. Gaertner, 117 Stone, 141 Iowa 438, 119 N. W. 
Mich. 532; HaU v. Wabash R. 712, 20 L. R. A. (N. S.) 221, 18 
Co., 133 Iowa 714, 110 N. W. Ann. Cas. 797. 

1039; Munn v. Worrall, 53 N. 24a. Ante, this section, note 

Y. 44; Urascheid v. Scholz, 84 98. 

Tex. 265. 16 S. W. 1065 (high- 24b. White v. City of .Marion, 
2 R. P.— 27 



1614 



Real, Property. 



[§ 436 



however, Avhether such words of reservation might not 
occasionally be construed as words of grant, vesting 
in the third person named a life estate, with remainder 
in fee simple. The tendency has been to regard such 
an attempted reservation of a limited estate in favor 
of a third person as what the courts denominate an 
"excejition" of the estate named in favor of the 
grantor himself.-'*^ 

Sufficiency of exception. An exception must 



be of part of the thing granted,-^ and must not be as 
extensive as such thing, so as to be repugnant thereto.^^ 
Nor is it valid if the subject thereof was previously 
specifically granted, as when, after granting twenty 
houses, one of such houses is sought to be excepted.-' 
There may be an exception, as before indicated, not 
only of a particular piece of land measured horizon- 
tally, but also of houses or other fixtures on the land 
conveyed,-^ or of timber growing thereon,^^ or of 
minerals therein,-''" 



139 Iowa, 479, 117 N. W. 254; 
Martin v. Cook, 102 Mich. 267, 60 
N. W. 679; Burchaid v. Walther, 
58 Neb. 539, 78 N. W. 1061; hi 
re Dixon, 156 N. C. 26, 72 S. E. 
71. 

24c. See the first three cases 
cited in last preceding note. 

25. Sheppard's Touchstone, 78; 
HaU V. Hall, 106 Me. 389, 76 Atl. 
705; Moore v. Lord, 50 Miss. 
229; Cornell v. Todd, 2 Denio 
(N. Y.) 130. 

26. Dorrell v. Collins Cro. 
Eliz. 6; Shoenberger v. Lyon, 7 
Watts & S. C. (Pa.) 184; Young's 
Petition, 11 R. I. 636; Puckett v. 
McDaniell. 96 Tex. 94, 70 S. W. 
739. See Bassett v. Budlong, 77 
Mich. 338, 18 Am. St. Rep. 404, 
43 N. W, 984; Foster v. Runk, 
109 Pa. St. 291, 58 Am. Rep. 
720, 2 Atl. 25; Koenigheim v. 



Miles, 67 Tex. 113, 2 S. W. 81; 
Adams v. Warner, 23 Vt. 395. 

27. Sheppard's Touchstone 78; 
4 Kent's Comm. 468; Sprague v. 
Snow, 4 Pick. (Mass.) 54. 

28. Marshall v. Niles, 8 Conn. 
369; Washington Mills Emery 
Mfg. Co. V. Commercial Fire Ins. 
Co. (C. C.) 13 Fed. Sep. 646; San- 
born V. Hoyt, 24 Me. 118 Ante 
§ 273. 

It has been said however that 
an exception of a house will 
prima facie include not only the 
house but the land under it. 
Webster v. Potter, 105 Mass. 414. 

29. Sheppard's Touchstone, 78; 
Heflin v. Bingham, 56 Ala. 566, 
28 Am. Rep. 776; Howard v. 
Lincoln, 13 Me. 122; Putnam v. 
Tuttle, 10 Gray (Mass.) 48. See 
ante, § 261. 

30. Snoddy v. Bolen, 122 Mo. 



§ 43G] 



Tbansfer Inter Vivos. 



1615 



The part or thing excepted, it is said, must be 
described with such certainty that it may be identified, 
and an exception has not infrequently been held to be 
void for lack of such certainty.'^ ^ But this requirement 
of certainty is, by a number of cases, subject to an 
important qualification, to the effect that there is suffi- 
cient certainty if the exact location of the excepted part 
is left to the election of the grantor,^- or, it seems, is 
capable of subsequent ascertainment otherwise.^ '^ The 
effect of the invalidity of an exception out of the land 
conveyed, by reason of its indefiniteness, is that the 
whole tract passes by the conveyance as if no exception 
had been attempted.^^ 



479, 24 S. W. 142, 25 S. W. 932; 
Sloan V. Lawrence Furnace Co., 
29 Ohio St. 568; Whitaker v. 
Brown, 46 Pa. St. 197. See ante 
§ 253, note 19. 

31. Bromberg v. Smee, 130 
Ala. 601, 30 So. 483; Mooney v. 
Cooledge, 30 Ark. 640; Nunnery 
V. Ford, 92 Miss. 263, 45 Co. 722: 
Andrews v. Todd, 50 N. H. 565; 
Den d. Waugh v. Richardson, 30 
N. C. 470; Stambaugh v. Holla- 
baugh, 10 Serg. & R. (Pa.) 357; 
Butcher v. Creel's Heirs, 9 Gratt. 
(Va.) 201; Harding v. Jennings 
68 W. Va. 354, 70 S. E. 1. 

32. Butler v. Gosling, 130 Cal. 
422, 62 Pac. 596; Thruston v. 
Masterson, 9 Dana (Ky.) 228; 
Smith V. Furbush. 68 N. H. 12.^1, 
47 L. R. A. 226, 44 Atl. 398; 
Dygert v. Matthews, 11 Wend. (N 
Y.) 35; DeRoach v. Clardy, 52 
Tex. Civ. App. 233, 113 S. W. 
22; Benn v. Hetcher, 81 Va. 25, 
59 Am. Rep. 645. Compare Chap- 
man V. Mill Creek Coal and Coke 
Co., 54 W. Va. 193. 46 S. E. 262. 

Until the land excepted is as- 
certained by the election of the 



grantor, the parties are in the 
position of tenants in common, it 
has been said. Smith v. Fur- 
bush, 68 N. H. 123, 47 L. R. A. 
226, 44 Atl. 398. 

It has been decided in England 
that an exception, thus to be 
subsequently ascertained by elec- 
tion, involved an attempt to 
create an estate in futuro, and 
might consequently be invalid, 
under the Rule against Per- 
petuities, or otherwise. Savill 
Bros., Ltd. V. Bethell (1902) 2 
Ch. 523. 

33. Melton v. Monday, 64 N. 
Car. 295 (subsequent survey) ; 
Ex parte Branch 72 N. Car. 106; 
(homestead to be set off) ; Lang- 
don V. New York, 6 Abb. N. Cas. 
314, 93 N. Y. 129 (street to be 
laid out); Consolidated Ice Co. v. 
New York, 166 N. Y. 92, 59 N. E. 
713 (street to be laid out). 

34. Bromberg v. Smee. 130 
Ala. 601, 30 So. 483; Swindall v. 
Ford, 184 Ala. 137, 63 So. 651 
Mooney v. Cooledge, 30 Ark. 640 
Baldwin v. WMnslow, 2 Minn. 213 
McAllister v. Honea. 71 Miss 



1616 



Real Property. 



[^ 436 



Since an exception is in effect merely a part of the 
description of the thing granted, the subject of the 
exception remains in the grantor, as before the con- 
veyance, and no words of inheritance or other words 
of limitation are necessary in order that the grantor 
may retain the same estate in the thing excepted as he 
had before.^^ 

An excexDtion, in its very nature, cannot operate in 
favor of a person other than the grantor.^^ But we 
frequently find in a conveyance language undertaking 
to except a part or parts of the land as being the prop- 
erty of another, or as having been previously sold or 
conveyed to another/" In such cases it is obvious that 
the rights of such other in the part excepted are not 
properly based on the exception, but exist prior there- 
to, and the effect of the words of exception is merely 



256, 14 So. 264; Den d. Waugh 
V. Richardson, 30 N. C. 470. 

35. Smith v. Ladd, 41 Me. 314; 
Lipsky V. Heller, 199 Mass. 310, 
85 N. E. 453; Negaunee Iron Co. 
V. Iron Cliffs Co., 134 Mich. 264, 
96 N. W. 468; Emerson v. 
Mooney, 50 N. H. 318; Whitaker 
V. Brown, 46 Pa. St. 197; Mandle 
V. Gharing, 256 Pa. 121, 100 Atl. 
535; Wheeler v. Wood, 30 Vt. 
242. And see cases cited ante §. 
362. 

The occasional Massachusetts 
decisions to the contrary (Curtis 
V. Gardner, 13 Mete. (Mass.) 457; 
Jamaica Pond Aqueduct Corp. v. 
Chandler, 9 Allen (Mass.) 170; 
are evidently no longer law. See 
Wood V. Boyd, 145 Mass. 176, 13 
N. E. 476; Claflin v. Boston & 
Albany R. Co., 157 Mass. 489, 20 
L. R. A. 638, 32 N. E. 659. The 
decision in Knotts v. Hydrick. 12 
Rich. L. (S. Car.) 314 is based 
on a passage in gheppards' 



Touchstone at p. 100, which is 
corrected in Preston's edition of 
the work. 

36. Parsons v. Miller, 15 Wend. 
(N. Y.) 561; Beardsley v. New 
Berlin Light & Power Co., 207 
N. Y. 34, 100 N. E. 434; Redding 
V. Vogt, 140 N. C. 562, 6 A. & E. 
Ann. Cas. 312, 53 S. E. 337. Any 
suggestion contra in Stone v. 
Stone. 141 Iowa, 438, 20 L. R. A. 
(N. S.) 221, 18 Ann. Cas. 797, 119 
N. W. 712, cannot be accepted. 

But an exception in terms of 
a part of the land in favor of a 
third person may operate in 
favor of the grantor, to exclude 
that part from the conveyance. 
Corning v. Nail Factory, 40 N. Y. 
209. 

37. Lloyd v. Gates, 143 Ala. 
231, 111 Am. St. Rep. 39, 38 So. 
1022; Adams v. Hopkins. 144 Cal. 
19, 77 Pac. 712; Mayberry v. 
Beck, 71 Kan. 609, 81 Pac. 191; 
Sanford v. Stillwell. 101 Me. 466, 



§ 436] Transfer Inter Vivcjs, 1617 

to charge the grantee, and persons claiming under him, 
with notice of the rights of such other person. So an 
exception, so called, of an outstanding dower interest,^^ 
does not confer on the widow a dower interest not pre- 
viously existent, but merely recognizes the existence of 
such interest. 

Sufficiency of reservation. Upon the question 



whether words of inheritance are necessary in a 
reservation, in order to confer an interest greater 
than for life, the cases are not in accord. It would 
seem, on principle, that such words would be necessary, 
in the creation of an easement or right of profit by 
reservation, when they would be necessary in the crea- 
tion of such a right by grant, and not otherwise. The 
cases, however, ordinarily discuss the question w^ithout 
reference to the consideration of the necessity of such 
words in a grant. It has occasionally been decided, or 
asserted, that such words are necessary in order to 
reserve an easement to the grantor and his heirs,^" and 
this view has been adopted in at least one state in 
which a conveyance of the land itself in fee simple may 
be made without the use of such words.^^ In tlie 
greater number of states the courts have refused to ap- 
ply the requirement of words of inheritance to the case 
of a resei^v^ation of an easement, this view being some- 
times based on the statute dispensing with words of 

64 Atl. 843; Midget v. Wharton, E. R. Co, 156 Mass. 181, 30 N. 

102 N. C. 144, 8 S. E. 778; In re E. 612; Claflin v. Boston & A. 

Stokeley's Estate, 19 Pa. 476; Bell R. Co., 157 Mass. 489, 20 L. R. A. 

V. Gardner & Lacey Lumber Co., 638, 32 N. E. 659; Simpson v. 

85 S. C. 182, 67 S. E. 151; Har- Boston & M. R. R., 176 Mass. 

man v. Stearns, 95 Va. 58, 27 359, 57 N. E. 674; Hornbeck v. 

S. E. 601. Westbrook, 9 Johns. (N. Y.) 73; 

38. Canedy v. Marcy, 13 Gray Kister v. Rieser. 98 Pa. 1. 
(Mass.) 373; Meserve v. Meserve, 40. Dawson v. Western M. R. 
19 N. H. 240; Crosby v. Mont- Co., 107 Md. 70, 14 L. R. A. (N. 
gomery, 38 Vt. 238; Swick V. S.) 809, 126 Am. St. Rep. 337. 15 
Sears 1 Hill (N. Y.) 17. Ann. Ca.s. 678, 68 Atl. 301. See 

39. Knelle v. Knecht, 99 111. Negaunee Iron Co. v. Iron Cliffs 
396; White v. New York & N. Co., 134 Mich. 264, 96 N. W. 468. 



1618 



Real Property. 



[^ 437 



inheritance for the purpose of creating an estate in 
fee simj^le, and sometimes on the theory that the ease- 
ment must be presumed to be of a quantum correspond- 
ing to the estate of the neighboring land retained by 
him, to which the easement is appurtenant.^^ 

§ 437. Rules of construction. The courts, in con- 
nection with the construction of written conveyances, as 
of other instruments, have asserted some general rules 
of construction, to aid in ascertaining the intention of 
the parties thereto. 

In case of doubt, it is said, the conveyance is to 
be construed most strongly as against the grantor, or 
in favor of the grantee, on the theory, it seems, that 
the words used are to be regarded as the words of the 
grantor rather than of the grantee.^^ Applying this 
rule, an exception or reservation in a conveyance is 
construed in favor of the grantee rather than of the 
grantor.^ ^ 



41. Ante § 362. 

42. Co. Litt. 48a, 183a; Neill 
V. Devonshire, 8 App. Cas. 135; 
Dickson v. Van Hoose, 157 Ala. 
459, 19 L. R. A. (N. S.) 717, 47 
So. 718; Jenkins v. Ellis, 111 
Ark. 220, 163 S. W. 524; Younger 
V. Moore, 155 Cal. 767, 103 Pac. 
221; Brown v. State, 5 Colo. 496; 
Sweeney v. Landers, 80 Conn. 
575, 69 Atl. 566; Peoria & P. 
Union Ry. Co. v. Tamplin, 156 
111. 285, 40 N. E. 960; Robertson 
V. Lieber, 56 Ind. App. 152, 105 
N. E. 66; Weaver v. Osborne, 154 
Iowa 10, 38 L. R. A. (N. S.) 
706, 134 N. W. 103; Chapman v. 
Hamblet, 100 Me. 454, 62 Atl. 215; 
Second Universalist Soc. v. Du- 
dan, 65 Md. 460; Soria v. 
Harrison County, 96 Miss. 109, 
50 So. 443; Grooms v. Morrison, 
249 Mo. 544, 155 S. W. 430; 



Crane v. McMurtrie, 77 N. J. 
Eq. 545, 78 Atl. 170; Outlaw 
V. Gray, 163 N. C. 325, 79 
S. E. 676; CoUison v. Phila- 
delphia Co. 233 Pa. 350, 82 
Atl. 474; Huntley v. Hough- 
ton. 85 Vt. 200, 81 Atl. 452; South 
& Western R. Co. v. Mann. 108 
Va. 557, 62 S. E. 354; Maxwell 
v. Harper, 51 Wash. 351, 98 Pac. 
756; Dear Creek Lumber Co. v. 
Sheets, 75 W. Va. 21, 83 S. E. 
81; Green Bay & Mississippi 
Canal Co. v. Hewett, 55 Wis. 96, 
12 N. W. 382. 

43. Cardigan v. Armitage, 2 B. 
& C. 197; Jacobs v. Roach, 161 
Ala. 201, 49 So. 576; Wiley v. 
Sirdorus, 41 Iowa, 224; Towns 
v. Brown, (Ky.) 114 S. W. 773; 
Wellman v. Churchill, 92 Me. 
193, 42 Atl. 352; Billings v. 
Beggs, 114 Me. 67, 95 Atl. 354; 



§ 437] 



Tbansfer Inteb Vrv^os. 



1619 



The rule has been applied in the case of a lease, in 
favor of the lessee/^ and in the ease of a mortgage, in 
favor of tlie mortgagee.'*^ The rule has been occasion- 
all.v referred to as one of last resort,^" and as one of 
questionable utility or propriety.'*' There are occasion- 
al suggestions to be found that the rule, while applicable 
in the case of a deed poll, does not apply in the case of 
an indenture, the language of which is to be regarded as 
that of both parties.*** 

In case of a clear repugnancy between two clauses 
of the conveyance, the earlier clause should, it is said, 
prevail over the later clause.^^ This rule likewise has 
been referred to as one of last resort,^*^ and of question- 
able utilitv.^^ 



Derby v. Hall, 2 Gray (Mass.) 
236; Bolio v. Marvin, 130 Mich. 
82, 89 N. W. 563; Cocheco Mfg. 
Co. V. Whittier, 10 N. H. 305; 
Duryea v. New York, 62 N. Y. 
592; Beardslee v. Light etc. Co., 
207 N. Y. 34, 100 N. E. 434; 
Klaer v. Ridgeway, 86 Pa. 329; 
Sheffield Water Co. v. Elk Tan- 
ning Co., 225 Pa. 614, 74 Atl. 
742; Bradley v. Virginia Ry. & 
Power Co., 118 Va. 233 87 S. 
E. 721. 

44. Doe V. Dixon, 9 East 15; 
Dann v. Spurrier, 3 Bos. & P. 
399. 

45. Stuart v. Worden, 42 Mich. 
154, 3 N. W. 876; United States 
Mortgage Co. v. Gross, 93 111. 483. 

46. Patterson v. Gage, 11 Colo. 
50; Swan v. Morehouse, 6 Dist. 
Col. 225; Falley v. Giles, 29 Ind. 
114; Carroll v. Granite Mfg. Co., 
11 Md. 411; Biddle v. Vande- 
venter, 26 Mo. 500; Flagg v. 
Eames, 40 Vt. 16, 94 Am. Dec. 
363. 

47. Taylor v. St. Helens Corp., 
6 Ch. D. 264, per .lessel M. R.; 



Swan V. Morehouse, 6 Dist. Col. 
225; Biddle v. Vanderventer, 26 
Mo. 500. 

48. Sheppard's Touchstone 87, 
2 Blackst. Coram. 380; Browning 
V. Beston, Plowd 131; Palmer 
V. Evangelical Baptist Benevolent 
& Missionary Soc. 166 Mass. 143, 
43 N. E. 1028; Union Water 
Power Co. v. Lewiston, 101 Me. 
564, 65 Atl. 67. 

49. Sheppard's Touchstone, 88; 
Norton Deeds, 80; Robertson v. 
Robertson, 191 Ala. 297, 68 So. 
52; Tubbs v .Gatewood, 26 Ark. 
128; Havens v. Dale, 18 Cal. 359; 
Lewman v. Owens, 132 Ga. 484; 
Marden v. Leimbach, 115 Md. 
206, 80 Atl. 958; Blackwell v. 
Blackwell, 124 N. C. 269, 32 S. 
E. 676. 

50. Bush V. Watkins, 14 Beav. 
425; Berners v. Real Estate Co., 
134 Mo. App. 290, 114 S. W. 131; 
Waterman v. Andrews, 14 R. I. 
589. 

51. McWilliams v. Ramsay, »'?3 
Ala., 813; Pike v. Munroe, 36 Me. 
309, 58 Am. Dec. 751. 



1620 



Real. Property. 



[§ 437 



Language of premises as controlling. It was 

a well established rule of the common law that, in the 
case of a clear repugnancy between the premises and 
the haheudmn, the premises would prevail to the ex- 
tent that an estate specifically limited in the gTantini>' 
clause could not be cut down to a less estate or in- 
validated by the language of the h<fhendum.''~ This rule 
w^as a])])lied, however, only when there was a specific 
limitation in the premises and, in the absence of such a 
limitation, the qumiium of the estate conveyed might 
be determined by the language of the habendum. For 
instance, while a conveyance without words of inheri- 
tance would pass merely a life estate, the insertion of 
such words in the habendum was sufficient to supply 
their lack in the premises, for the purpose of creating 
an estate in fee simple, as for instance, in the case of a 
conveyance to A, to have and hold to A and his heirs."'" 
And on the same principle where, under the modern 



52. Throckmerton v. Tracy, 1 
Plowd. 145; 2 Blackst. Comm. 
298; 2 Sanders, Uses & Trusts 
155, note; Challis, Real Prop. 
(3rd Ed.) 411; Norton Deeds 
294. 

Even at common law, although 
the grant in the premises was 
to A. and his "heirs," the haben- 
dum might show that a fee tail 
only was created, this being re- 
garded, not as abridging the 
estate granted, but as merely 
a qualification of the word 
"heirs" as first used. Co. Litt. 
21a; Turnman v. Cooper, Cro. 
Jac. 476; Altham's Case, 8 Coke, 
154b. See Smith v. Lindsay. 37 
Pa. Super Ct. 171. A conveyance 
to A. and the heirs of his body, 
habendum to him and his heirs 
forever, gave A. an estate tail, 
probably with a fee simple ex- 
pectant. Co. Litt. 21a and Mar- 



grave's note; Corbin v. Healy, 20 
Pick. (Mass.) 514. See Hunter v. 
Patterson, 142 Mo. 310, 44 S. W. 
250. 

The English authorities are to 
the effect that the habendum, 
may operate to enlarge the estate 
named in the pr^^mises, though 
not to abridge it. See Co. Litt. 
299a, 2 Sanders, Uses & Trusts 
(5th Ed.) 156; Challis' Real Prop. 
(3rd Ed) 411; Kendal v. Macfeild 
Barn. Ch. Rep. 46. But see 
Karchner v. Hoy, 151 Pa. 383, 25 
Atl. 20. 

53. Co. Litt. 183a; Sheppard's 
Touchstone, 76, 102, 113; Altham's 
Case, 8 Coke, 154b; Berry v. 
Billings, 44 Me. 416, 69 Am. Dec. 
107; Havens v. Sea Shore Land 
Co., 47 N. J. Eq. 365, 20 Atl. 497: 
Phillips V. Thompson, 73 N. C. 
543; McLeod v. Tarrant, 39 S. C. 
271, 20 L. R. A. 846. 17 S. E. 773; 



§ 437] 



Transfer Inter Vivos. 



1621 



statutes ill force in many states,^^ a grant to A, without 
words of inheritance, creates a fee simple, or passes 
whatever estate the grantor may have, the hahendum 
may show that an estate for life only is intended to be 
conveyed. ^^ 

AVhile the common-law rule that an estate specifical- 
ly limited in the premises cannot be abridged by the 
habendum is still not infrequently asserted and oc- 
casionally receives a practical application,^^' the tendency 



Hanks v. Folsom, 11 Lea, (Tenn.) 
555. 

54. Ante § 21(a). 

55. McDill V. Meyer, 94 Ark. 
615, 128 S. W. 364; Montgomery 
V. Sturdivant, 41 Cal. 290; Buck 
V. Garber, 261 111. 378, 103 N. E. 
1059; Doren v. Gillum, 136 Ind. 
134, 35 N. E. 1101; Yeager v. 
Farnsworth, 163 Iowa, 537, 145 N. 
W. 87; Bodine's Adm'rs v. AHhur, 
91 Ky. 53, 34 Am. St. Rep. 162. 
14 S. W. 904; Baskett v. Sellars, 
93 Ky. 2, 19 S. W. 9; Kelly v. 
Hill,— (Md.),— 25 Atl. 919; Week- 
ley V. Weekley 75 W. Va. 280, 83 
S. E. 1005. 

It has even been decided that 
since, under these statutes, the 
presence of words of inheritance 
is immaterial, the habendum may 
show that a life estate only is 
intended, although the grant is 
in terms to one and his heirs. 
Barnett v. Barneft. 10? Cal. 298. 
37 Pac. 1049; Davidson v. Manson 
lie Mo. 608, 48 S. W. 635; 
Trlplett V. Williams, 149 N. C. 
394, 24 L. R. A. (N. S.) 514, 
63 S. E. 79; Contra. Prindle v. 
Iowa Soldiers' Orphans' Home, 
153 Iowa, 234, 133 N. W. 160. 

56. Dickson v. Van Hoose, .157 
Ala. 459, 19 L. R. A. (N. S.) 719. 
47 So. 718; Caulk v. Pox, 13 Fla. 



148; Kron v. Kron, 195 111. 181, 62 
N. E. 809; Chamberlain v. Runkle, 
28 Ind. App. 607, 63 N. E. 486; 
Richards v. Richards, 60 Ind. 
App. 34, 110 N. E. 103; 
Prindle v. Iowa Soldiers' Orphans' 
Home, 153 Iowa, 324, 133 N. W. 
106; Land v. Land, 172 Ky. 145, 
189 S. W. 1; Lurk v. McNabb, 111 
Md. 641. 74 Atl. 825; Smith v. 
Smith, 71 Mich. 633, 40 N. W. 21; 
Teague v. Sowder, — (Tenn.) — 114 
S. W. 484; Reese Howell Co. 
V. Brown. 48 Utah, 142, 158 Pac. 
684. 

So after giving in clear terms 
a fee simple, a subsequent clause 
undertaking to state the persons 
to whom the land should pass on 
the grantee's death has been re- 
garded as invalid. Marsh v. 
Morris, 133 Ind. 54«, 33 N. E. 
290: Humphrey v. Potter, 24 Ky. 
L. Rep. 1264, 70 S. W. 1062; 
Robinson v. Payne, 58 Miss. 690; 
Wilkins v. Norman, 139 N. C. 40, 
ni Am. St. Rep. 767, 51 S. E. 
797. 

In Morton v. Babb, 251 111. 488, 
96 N. E. 2'9. it was decided that 
where the granting clause was 
to A and his heirs subject to a 
limitation over to B., such limita- 
tion over was valid and effective 
although the habendum was to A 



1622 



BeaIi Propehty. 



[^ 437 



at the present time is very considerably to limit its 
operation. Even thongii the language of the habendum, 
or of some other subsequent clause of the conveyance 
is, considered by itself, inconsistent with that of the 
premises, the court will frequently refuse to recognize 
any inconsistency and, viewing the instrument as a 
whole rather than as an aggregate of distinct parts, 
will consider the habendum or other subsequent clause 
merely as an aid in the construction of the premises. ^^ 
In this way, without any explicit repudiation of the 
common-law rule, the court may accord to the habendum 
a preponderating influence such as it did not have 
at common law.^^ So it has been said that the common- 
law rule is one to be applied only when there is an 
irreconcilable conflict between the two parts of the 
convey ance.^^ 



and his heirs without the limita- 
tion over, it being said that in 
case of inconsistency the grant- 
ing clause should control. 

In Cole V. Collie, 131 Ark. 103, 
198 S. W. 710, it was held that 
an exception of the minerals in 
the land conveyed, inserted in 
the Jiabendum. was nugatory. 

57. McWilliams v. Ramsey, 23 
Ala. 813; Whetstone v. Hunt, 78 
Ark. 230, 8 A. & E. Ann. Cas. 443, 
93 S. W. 979; Barnett v. Barnett, 
104 Cal. 298, 37 Pac. 1049; Bray 
V. McGinty, 94 Ga. 192, 21 S. E. 
284; Husted v. Rollins, 156 Iowa, 
546, 137 N. W. 462, 42 L. R. A. N. 
S. 378; Palmer Oil & Gas. Co. v. 
Blodgett, 60 Kan. 712, 57 Pac. 
947; Wilson v. Moore, 146 Ky. 
679, 143 S. W. 431; May v. Jus- 
tice, 148 Ky. 696, 147 S. W. 409; 
Putnam v. Pere Marquette R. R., 
174 Mich. 246, 140 N. W. 554; 
Davidson v. Manson, 146 Mo. 608, 



48 S. W. 635; Triplett v. Wil- 
liams, 149 N. C. 394, 24 L. R. A. 
N. S. 514, 63 S. E. 79; Fogarty v. 
Stach, 86 Tenn., 610, 8 S. W. 
846; Johnson v. Barden, 86 Vt. 
19, Ann. Cas. 1915 A, 1243, 83 
At. 721. 

58. See Barnett v. Barnett, 104 
Cal. 300, 37 Pac. 1050; Garrett v. 
Wiltse, 252 Mo. 699, 161 S. W. 
694; Jones v. Whichard, 163 N. C, 
241, 79 S. E. 503; Culpepper Nat. 
Bank v. Wrenn, 115 Va. 55, 78 
S. E. 620; Weekley v. Weekley. 75 
W. Va. 280, 83 S. E. 1005. 

59. McWilliams v. Ramsay, 23 
Ala. 813; Whetstone v. Hunt, 78 
Ark. 230, 93 S. W. 979; Richards 
V. Richards, 60 Ind. App. 34, 110 
N. E. 103; Henderson v. Mack, 
82 Ky. 379; Land v. Land, 172 
Ky. 145. 189 S. W. 1; Robinson 
V. Payne, 58 Miss. 690; Black- 
well v. Blackwell, 124 N. C 
269, 32 S. E. 676. 



§ 437] Transfeb Inter Vivos. 1623 

Occasional!}^ the application of the common-law rule 
referred to has been regarded as called for when an 
estate in fee simple was clearly created by the granting 
clause, and subsequently a limitation over in favor of 
another j^erson was inserted, to take effect upon the 
death of the grantee under some particular contingency, 
as for instance, death without issue, with the result of 
regarding such limitation over as invalid because op- 
erating to abridge the estate previously created.''^ 
Such a view is, however, difficult to accept. An execu- 
tory limitation in defeasance of a fee simple is perfectly 
valid when it occurs in a will;*'^ and there is no reason 
why it should not be so regarded when it occurs in a 
conveyance i)iter vivos. Indeed the validity of such a 
limitation, taking etfect under the Statute of Uses, has 
long been recognized, being the ordinary case of a 
"shifting use."^^ The common-law rule that an estate 
given in the granting clause cannot be subsequently cut 
down to a less estate does not properly apply to such a 
case of a mere possibility of the divesting of the fee 
simple estate by reason of the occurrence of some future 
contingency, even though this is named to occur at 
the time of the death of the grantee. The grantee has, 
in spite of this divesting clause, an estate in fee simple 
and not a life estate, so long as he has any estate what- 
soever.^^ 

60. Scull V. Vaugine, 15 Ark. ton v. Babb, 251 111. 488, 96 N. 

695; Carl Lee v. Ellsberry, 82 E. 279; Fogarty v. Stack, 8G 

Ark. 29, 12 L. R. A. N. S. 957, Tenn. 610, 8 S. W. 846. 

101 S. W. 407; Palmer v. Cook, 61. Ante §§ 160, 163b. 

159 111., 300, 50 Am. St. Rep. 165, 62. Ante § 157. 

42 N. E. 796; Lamb v. Medsker, 63. A like criticism may be 

35 Ind. App. 662, 74 N. E. 1012 made, it is submitted, of occasion- 

(semble) ; Ray v. Spears, 23 Ky. al decisions that after a clause 

Law Rep. 14, 64 S. W. 413; creating a fee simple estate, a 

Hughes V. Hammond, 130 Ky. subsequent clause creating a pow- 

694, 26 L. R. A. N. S. 808, 125 er of disposition, the exercise 

S W. 144; Ex parte Town, 17 S. of which would divest the fee 

C. 532; Glenn v. Jamison, 48 S. simple, is invalid. See e. g. 

C. 316, 26 S. E. 277; Contra. Mor- Pritchett v. Jackson, 103 Md. 696, 



1624 



Real. Property. 



[§ 438 



§ 438. Consideration. A conveyanee is not, prop- 
erly speaking, a contract, though it is usually the result 
of agreement, and a consideration is consequently not 
necessary to its validity, except when the conveyance is 
one operating under the Statute of Uses.^* In other 
words, the owner of land has the same right to make 
a gift thereof to another person as he has to sell it, and 
the only persons who can question the validity of the 
conveyance for want of consideration are creditors who 
may thereby lose the means of satisfying their de- 
mands.*^^ The absence of consideration may also de- 
prive the grantee of the right to claim the position of a 
purchaser for value as against the adverse rights of 
third persons,®^ as well as of the right to ask a refor- 
mation of the conveyance on account of mistake.^'^ In 
some states, by reason of a statute abolishing private 
seals, or changing their effect, the fact that the con- 



es At. 965; Blair v. Muse, 83 
Va. 238, 2 S. E. 31. 

64. 1 Sanders, Uses & Trusts 
67, 4 Kent. Comm. 462; McKee v. 
West, 141 Ala. 531, 109 Am. St. 
Rep. 54, 37 So. 740; Kline v. 
Kline, 14 Ariz, 369, 128 Pac. 805; 
Tillaux V. Tillaux, 115 Cal. 663, 47 
Pac. 691; Campbell v. Whitson, 
68 111. 240, 18 Am. Rep. 553; 
Thompson v. Thompson, 9 Ind. 
323, 68 Am. Dec. 638; Conway v. 
Rock, 139 Iowa, 162, 117 N. W. 
273; Hanson v. Buckner's Exc'r. 
4 Dana (Ky.) 251, 29 Am. Dec. 
401; Laboree v. Carleton, 53 Me. 
211; Goodwin v. White, 59 Md. 
503; Beal v. Warren, 2 Gray 
(Mass.) 447; Gale v Gould, 40 
Mich. 515; Burnett v. Smith, 93 
Miss. 566, 47 So. 117; Masterson 
V. Sheahan,— Mo.— 186 S. W. 524; 
Campbell v. Tompkins, 32 N. J. 
Eq. 170; Mosely v. Mosely, 87 N. 



Car. 69; Howard v. Turner, 125 
N. Car. 107, 34 S. E. 229; Carna- 
gie V. Diven, 31 Oreg. 366, 49 
Pac. 891; Kelly's Appeal, 108 Pa. 
29; Brown v. Brown, 44 S. C. 
378, 22 S. E. 412; Bernardy v. 
Colonial & U. S. Mtge. Co., 17 S. 
Dak. 637, 106 Am. St. Rep. 791, 98 
N. W. 166; Battle v. Claiborne, 
133 Tenn. 286, 180 S. W. 584. 

65. Post, § 587. 

66. Post. §§ 566-579. 

67. Enos V. Stewart, 138 Cal. 
112, 70 Pac. 1005; Strayer v. 
Dickerson, 205 111. 257, 68 N. E. 
767; St. Clair v. Marquell, 161 
Ind. 56, 67 N. E. 693; Shears v. 
Westover, 110 Mich. 505, 68 N. W. 
266; Powell v. Morisey, 98 N. Car. 
426, 2 Am. St. Rep. 343, 4 S. E; 
185; Hout V. Hout, 20 Ohio St. 
119; Burgson v. Jacobson, 124 
Wis. 295, 102 N. W. 56:!. 



§ 438] Transfer Inter Vivos. 1625 

veyance is voluntary would constitute a defense to an 
action on the grantor's covenants/'^ 

Although there can be not the slightest question 
that a conveyance is ordinarily valid without any con- 
sideration, expressions are to be found in judicial 
opinions in this regard which may tend to mislead. 
For instance, in upholdng a conveyance, the courts oc- 
casonally refer to the consideration as being sufficient,^^ 
and not infrequentlj^ it is stated that love and aifection 
constitute a sufficient consideration.'^'^ And likewise, 
the statement that the seal on the conveyance imports 
a consideration is calculated to imply that a consider- 
ation is, apart from the seal, necessary to a conveyance.'^ 
But there are few, if any, actual decisions, that a con- 
veyance, not operating under the Statute of Uses, is 
invalid as against the grantor or his heirs, by reason of 
lack of consideration. 

Ordinarily in a conveyance, a consideration, fre- 
quently a nominal sum merely, is named, and the re- 
ceipt thereof is expressly acknowledged. Such a clause 
in the conveyance serves to rebut any implication of a 
resulting use or trust in favor of the grantor,'^- and 

68. See Wilbur v. Warren, 104 Y. 660. So it has been said that 
N. Y 192, 10 N E. 263. no consideration is necessary for 

69. See e. g. Barnes v. Mult- a conveyance to children or 
nomah County, 145 Fed. 695; grandchildren. Spencer v. Razor, 
Steen v. Steen, 169 Iowa, 264, 251 111. 278, 96 N. E. 300. And it 
151 N. W. 115; Bissell v. Taylor, has been said that a "good" con- 
41 Mich. 702, 3 N. W. 194; An- sideration is sufficient, without 
derson v. Baines, 156 Mo. 664, 57 stating what is a good considera- 
S. W. 726; Boyd v. Lloyd, 86 tion. Powers v. Munson 74, Wash. 
Ark. 169, 110 S. W. 596; Jones 234, 133 Pac. 453. 

V. Gatliff,— (Ky.)— 113 S .W. 436; 71. Rendleman v. Rendlenian, 

Ames V Moore, 54 Ore. 274, 101 156 111. 568, 41 N. E. 223; Brown 

Pac. 769. V. Brown, 44 S. Car. 378, 22 S. 

70. See e. g. Conley v. Nailor, E. 412; Golle v. State Bank of 
118 U. S. 127, 30 L. Ed. 112; Wilson Creek, 52 Wash. 437, 10(t 
Oliphant v. Llversidge, 142 111. Pac. 984. 

160, 30 N. E. 334; Studybaker v. 72. Peeney v. Howard, 79 Cal. 

Cofield, 159 Mo. 59C, 61 S. W. 525, 4 L. R. A. 826, 12 Am. St. 
246; Loeschlgk v. Hatfield, 51 N. Rep. 162, 21 Pac. 984; Meeker v. 



1626 



Heal. Property. 



[§ 438 



likewise to furnish support for the conveyance as a 
bargain and saleJ^ But the fact that the instrument 
does not recite the payment of a consideration does not 
affect the right of the grantee to show its payment.^* 
An acknowledgment in the instrument of the receipt 
of the consideration is conclusive upon the parties as 
to the fact that a consideration was paid, in so far as 
the payment of a consideration may be regarded as 
necessary to support the conveyance/^ or in so far as 
such payment might serve to exclude any presumption 
of a resulting trust in favor of the gTantor.'^ It is, 
however, for most purposes, open to contradiction, as is 



Meeker, 16 Conn. 383; Acker v. 
Priest, 92 Iowa, 610, 61 N. W. 
235; Groff v. Rohrer, 35 Md. 327; 
Gould V. Lynde, 114 Mass. 366; 
Moore v. Jordan, 65 Miss. 229, 7 
Am. St. Rep. 641, 3 So. 737; 2 
Story, Eq. Jur. § 1199. 

73. Ante § 428. 

■74. Fisher v. Smith, Moore, 
569; Smith v. Lane, 1 Leon. 170; 
Goad V. Moulton, 67 Cal. 536, 8 
Pac. 63; Lowry v. Howard, 35 
Ind. 170, 9 Am. Rep. 676; Boynton 
V. Rees, 8 Pick. (Mass.) 329, 19 
Am. Dec. 326; Underwood v. 
Campbell, 14 N. H. 393; Wood v. 
Chapin, 13 N. Y. 509, 67 Am. Dec. 
62; Den d Siprings v. Hanks, 27 
N. C. 30; Sprague v. Woods, 4 
Watts & S. (Pa.) 192; Jackson v. 
Dillon's Lessee, 2 Overt (Tenn.) 
261; Wood v. Beach, 7 Vt. 522. 

75. Russ V. Mebins, 16 Cal. 35o; 
Cheesman v. Nicholl, 18 Colo. App. 
174, 70 Pac. 797; Kimball v. 
Walker, 30 111. 482, 511; Aber- 
nathie v. Rich. 256 111. 166, 99 N. 
E. 883; Acker v. Priest, 92 Iowa. 
610, 61 N. W. 235; Maxwell v. 
McCall, 145 Iowa, 687, 124 N. W. 
760; Beavers v. McKinley, 50 Kan. 



602, 32 Pac. 363, 33 Pac. 359; 
Goodspeed v. Fuller, 46 Me. 141; 
McKusick V. Washington County 
Commissioners, 16 Minn. 151; 
Strong V. Whyback, 204 Mo. 341, 
12 L. R. A. N. S. 240, 102 S. W. 
968; Morse v. Shattuck, 4 N. H. 
229; Farrington v. Barr, 36 N. H. 
86; McCrea v. Purmort, 16 Wend. 
(N. Y.) 460, 30 Am. Dec. 103; 
Deaver v. Deaver, 137 N. Car. 240, 
49 S. E. 113; Finlayson v. Finlay- 
son, 17 Ore. 347, 11 Am. St. Rep. 
836, 3 L. R. A. 801, 21 Pac. 57. 

So such acknowledgment is 
conclusive for the purpose of sup- 
porting the conveyance as a deed 
of bargain and sale. Fisher v. 
Smith, Moor. 569; Smith v. LaBe. 
1 Leon 170; Wilt v. Franklin, 1 
Binn. 502; Sheppard's Touchstone- 
223. 

76. Story Equity Jur, § 1199; 3 
Pomeroy, Eq. Jur. § 1036; Davis 
v. Jernigan, 71 Ark. 494, 76 S. 
W. 554; Feeney v. Howard, 79 
Cal. 525, 4 L. R. A. 826, 12 Am. 
St. Rep. 162, 21 Pac. 984; Luck- 
hart V Luckhart, 120 Iowa, 248, 
94 N. W. 461; Philbrook v. 
Delano, 29 Me. 412; Weiss v. 



§ 438] 



Teansfer Inter Vivos. 



1627 



any receipt.'" Likewise the recital in the instrument as 
to the amount of the consideration is ordinarily not 
conclusivej^ for the same reason, that such recital is 
not intended to have a legal effect, is not, so to speak, 
the 'integration of a legal act,"'^ but is merely the 
statement of a fact, and is as such open to explanation 
or contradiction. If, however, the recital of the con- 
sideration is intended to have a contractual or other 
legal operation, creating or divesting a right, it is con- 
clusive upon the parties to the instrument. ^^ It is for 



Heitkamp, 127 Mo. 23, 29 S. W. 
709; Graves v. Graves, 29 N. H. 
129. 

77. Morton v. Morton, 82 Ark. 
492, 102 S. W. 213; Wood v. 
Bangs, 2 Penn. (Del.) 435; Sul- 
livan V. Lear, 23 Fla. 463, 11 Am. 
St. Rep. 388, 2 So. 846; Koch v. 
Roth, 150, 111. 212, 37 N. E. 317; 
Rhodes v Walker,— (Ky.),— 115 S. 
W. 257; Bassett v. Bassett, 55 Me. 
127; Fowlkes v. Lea, 84 Miss. 509, 
68 L. R. A. 925, 2 A. & E. Ann. 
Cas. 466, 36 So. 1036; Shelton v. 
Cooksey. 138 Mo. App. 389, 122 
S. W. 331; Bingham v. Weider- 
wax, 1 N. Y. 509; Marcom v. 
Adams. 122 N. C. 222, 29 S. E. 
333; Singletary v. Goeman, 58 
Tex. Civ. App. 5, 123 S. W. 436; 
Spangler v. Ashwell, 116 Va. 992, 
83 S. E. 930; Halvorsen v. Hal- 
vorsen, 120 Wis. 52. 97 N. W. 494. 

78. Hitz v. National Metropoli- 
tan Bank, 111 U. S. 722. 28 L. Ed. 
577; London v. G. L. Anderson 
Brass Works, 197 Ala. 16, 72 So. 
3.59; Vaugine v. Taylor, 18 Ark. 
65; Byers v. Locke, 93 Cal. 493. 
27 Am. St. Rep. 212. 29 Pac. 
119; Lloyd v. Sandusky. 203 111. 
62], 68 N E. 154; Allen v. Rees. 
136 Iowa, 423. 8 L. R. A. N. S. 
1137. 110 N. W^ 583; Goodspeed v. 



Fuller, 46 Me. 141; Wilkinson v. 
Scott, 17 Mass. 249; Smith v. 
Maxey. 186 Mich. 151, 152 N. W. 
1011; BoUes v. Sachs, 37 Minn. 
318, 3.3 N. W. 862; Goodman 
v. Smith, 94 Neb. 227, 142 
N. W. 521; McCrea v. Pur- 
mort, 16 Wend. (N. Y.) 460, 
30 Am. Dec. 103; Hebbard v. 
Haughian, 70 N. Y. 54; Michael 
V. Foil, 100 N. C. 178, 6 Am. St. 
Rep. 577, 6 S. E. 264; Conklin v. 
Hancock, 67 Ohio St. 455, 66 N. 
E. 518; Grace v. McDowell. 60 
Ore. 577, 120 Pac. 413; Henry v. 
Zurflieh, 203 Pa. 440, 53 Atl. 243; 
Miller v. Livingston. 36 Utah 174, 
61 Pac. 569: KIckland v. Menasha 
Wooden Ware Co.. 68 Wis. 34, 60 
Ara. Rep. 831, 31 N W. 471. 

79. See 4 Wigmore, Evidence §, 
2425 et seq. 

80. Wallace v. Meeks, 99 Ark. 
350, 138 S. W. 638; Hilgeman v. 
Sholl, 21 Ind. App. 86, 51 N. E. 
728; Milich v. Armour Packing 
Co., 60 Kan. 229, 56 Pac. 1: 
Gully v. Grubbs, 1 J. .1. Marsh. 
(Ky.) 387; Kramer v. Gardner, 
104 Minn. 370, 22 L. R. A. (N. 
S.) 492, 116 N. W. 925; Baum v. 
Lynn, 72 Miss. 932, 30 L. R. A. 
441. 18 So. 428: Halferty v Searce. 
135 Mo. 428, ;!7 S. W. 113, 255; 



1628 Real Property. [§ 438 

this latter reason that the recital of the payment of the 
consideration is conclusive for the purpose of sujDport- 
ing the validitj^ of the conveyance. ^^ Such recital in- 
volves the statement of a dispositive or vestitive fact, 
and as such is not susceiDtible of contradiction, it stand- 
ing, in this regard, in the same category as the words 
of conveyance, or the description of the property con- 
veyed. It is for a like reason that such recital cannor 
be contradicted for the purpose of showing a resulting 
trust in favor of the grantor.^^ The operation of the 
recital is to vest the beneficial interest in the grantee, 
and the recital cannot be contradicted in order to de- 
prive him of such interest. 

There has been considerable discussion of the ques- 
tion whether the recital as to the consideration precludes 
the parties from showing, not that the consideration 
is different in amount from that recited, but is different 
in character therefrom. The difference in character 
ordinarily referred to in this connection is the difference 
between a valuable consideration and a good consider- 
ation, so called. The expression "good consideration," 
means, however, merely a lack of valuable consideration. 
Consequently, the question whether an instrument which 
recites a valuable consideration can be shown to be 
based on a good consideration involves merely the 
question whether it can be shown to be a gift, while the 
converse question, whetlier an instrument which recites 
a good consideration can be shown to be based on a 
valuable consideration, involves merely the question 
whether it can be shown not to be a gift. Conceding that 
the recital is not conclusive as to the amount of the 
valuable consideration, and the cases are in apparent 

McDaniels v. United Railways of v. Darnell, 89 Wash. 226, 154 

St. Louis, 165 Mo. App. 678, 148 Pac. 183; Monongohela 7ie & 

S. W. 464; Kahn v. Kahn, 94 Lumber Co. v. Flannigan, 77 W. 

Tex. 114, 58 S. W. 825; Walter Va. 162, 87 S. E. 161; 4 Wig- 

V. Bearing, — (Tex.) — 65 S. W. more. Evidence § 2433. 

380; Pierce v. Brew, 43 Vt. 292; 81. Anie. this section, note 75. 

Union Machinery & Supply Co. 82. Ante, this section, note 76. 



§ 438] Tkansfer Inter Vivos . 1620 

unison to that effect, it is not readily perceptible why 
it should be conclusive as to whether there is any valua- 
ble consideration whatsoever. The cases ^^ adverse to 
the right to show such a different character of consider- 
ation, as it is expressed, ordinarily involve the right 
to show that the conveyance was or was not an ad- 
vancement, for the purpose of settling the grantor's 
estate upon his death, or that it was or was not a gift, 
for the purpose of determining the course of descent 
from the grantee, and they are usually based on the 
theory that an attempt to contradict the recital by show- 
ing the presence or absence of a valuable consideration 
involves an attempt to change the legal operation of 
the conveyance. But, it is submitted, the operation of 
the conveyance, as transferring the grantor's rights, is 
the same, whether he does or does not receive something- 
of value in exchange therefor, and this is so even though 
the presence or absence of such a consideration may 
affect the grantee's rights as regards other persons, or 
the rights inter se of persons claiming under the grantee. 
The very decided weight of authority is to the effect 
that the recital of a valuable consideration does not 
preclude a showing that there was no such consider- 
ation,^^ and it has likewise been decided that a recital 

83. Winningham v. Pennock, Coburn, 18 Pick. (Mass.) 397. 

.'56 Mo. App. 688; Yates v. Burt, And see Miller v. Goodwin, 8 

161 Mo. App. 267, 143 S. W. 73: Gray (Mass.) 542, where evidenc-e 

Burrage v. Bear Isley, 16 Ohio, that the consideration was niar- 

438; Patterson v- Lamson, 45 Ohio rlage was admitted for this pur- 

St. 77, 12 N. E. 531; Groves v. pose though the deed recited 

Groves. 65 Ohio St- 442, 62 N- merely past .services as a con- 

E- 1044. sideration- 

That the conveyance cannot be 84- Morton v. Morton, 82 Ark. 

supported as a covenant to stand 492, 102 S. W- 213; Peck v. 

seised when a valuable consider- Vandenberg, 30 Cal- 11; Carty v. 

■atlon alone is recited. See Connolly, 91 Cal. 15, 27 Pac- 599; 

Bedell's Case 7 Co. Rep. 133. Meeker v. Meeker, 16 Conn. 387; 

Foster v. Foster. Tho. Raym. 43. Leggett v- Patterson. 114 Ga- 714, 

1 Lev. 55; Elysville Co. v. Okisko. 40 S. E. 736; Rickhill v. Spraggs, 

1 Md. Ch. 315; Contra- Gale v. 9 Ind- 30; Kenney v- Phillippy, 91 
2 R. P.— 28 



i6;jo 



Real. Pkopeety. 



[§ 438 



of love and affection as the consideration does not pre- 
clude a showing of a valuable consideration.^^ 

The right to show that the consideration for a con- 
veyance which recites a valuable consideration was, 
while a thing of value, a thing of a different kind, as 
for instance, merchandise instead of money, has been 
generally recognized.^^ 



Ind. 511; Finch v. Garrett, 102 
Iowa, 381, 71 N. W- 429; Crafton 
V. Inge, 124 Ky. 89, 98 S. W. 325; 
Koogle V- Cline, 110 Md- 587, 
(semble), 24 L. R. A- (N. S) 413, 
73 Atl 672; Gale v- Coburn, 18 
Pick. (Mass.) 397; Harman v- 
Fisher, 90 Neb- 688, 39 L- R. A- 
(N. S.) 157, 134 N. W. 246; 
Speer v. Speer, 14 N. J. Eq. 240; 
Voigt V. Dowe, 74 N. J. Eq. 560, 
70 Atl. 344; Palmer v. Culbertson, 
143 N- Y- 213, 38 N- B- 199; 
Barbee v Barbee, 108 N. C. 581, 13 
S. E. 215; Shehy v. Cunning- 
ham, 81 Ohio St. 289, 25 L- R. A- 
(N- S.) 1194, 90 N. E 805; Velteu 
V. Carmack, 23 Ore. 282, 20 L. 
R- A. 101, 31 Pac- 658; Lewis v. 
Brewster, 57 Pa. St. 410; Wolf v. 
King, 49 Tex- Civ. App. 41, 107 
S. W. 617; Bruce v- Slemp, 82 
Va. 352, 4 S. E. 692. 

85. Attwell V. Harris, 2 Roll 
Rep. 91; Gale v. Williamson, 8 
Mees. & W. 405 (as against cre- 
ditors) ; Harman v. Richards, 10 
Hare 81 (as against creditors); 
Leahy v. Dancer, 1 Molloy 313 
(to show purchaser for value). 

Tompson v. Cody, 100 Ga. 771, 
28 S. E. 669; Nichols, Shepherd & 
Co- v. Burch, 128 Ind. 324, 27 N. 
E- 737; Chantland v- Sherman, 
148 Iowa, 352, 125 N. W. 871; 
Thomas v. Smith. 6 Ky L. Rep. 
737; Scudder v. Morris, 107 Mo. 



App. 634, 82 S- W. 217; Lewis v. 
Brewster, 57 Pa. St. 410 {dic- 
tum); Ferguson v. Harrison, 41 
S. C. 340, 19 S. E. 19; Contra^ 
Potter V. Gracie, 58 Ala. 303; 
Baxter v. Sewell, 3 Md. 334; El- 
linger V. Crowl, 17 Md. 361; 
Latimer v. Latimer, 53 S. C. 483, 
31 S. E. 304. And see Ogden 
State Bank v. Barker, 12 Utah 13, 
40 Pac. 765. 

86. Townend v. Toker, L- R- 1 
Ch. 446; Bailey v. Litten, 52 Ala- 
282; Harraway v- Harraway, 136 
Ala. 499, 34 So. 836; St. Louis & 
N. R. R. Co. V. Crandall, 75 Ark. 
89, 112 Am- St Rep. 42, 86 S. W- 
855; Carty v- Connolly, 91 Cal. 
15. 27 Pac. 599; Droop v- Ride- 
nour, 11 App. D. C. 224; Stone 
V. Minter, 111 Ga. 45, 50 L. R. 
A. 356, 36 S. E. 321; Kintner v. 
Jones, 122 Ind. 148, 23 N. E. 
701; Bristol Sav. Bank v. Stiger, 
86 Iowa, 344, 53 N. W. 265; 
Twomey v. Crowley, 137 Mass. 
184; Edwards v. Latimer, 183 
Mo. 610, 82 S. W. 109; Lake v. 
Bender, 18 Nev. 361, 4 Pac. 711; 
7 Pac. 74; Medical College La- 
boratory V. New York University, 
178 N. Y. 153, 70 N. E. 467; 
Price v. Harrington, 171 N. C. 
132, 87 S. E. 986; Conklln v. 
Hancock, 67 Ohio St. 455. 66 N. 
E. 518; Barnes v. Black, 193 Pa. 
447, 74 Am. St. Rep. 694, 44 Atl. 



§ 438] Teansfer Inter Vivos. 1631 

As it is not permissible to introduce evidence as to 
the consideration in contradiction of the consideratioi' 
clause in so far as such clause is contractual in charac- 
ter, or is otherwise intended to have a legal effect,^" 
so it is not permissible to introduce evidence as to the con- 
sideration in contradiction of any other clause which is 
contractual in character or intended to have a legal ef- 
fect. ^^ Accordingly, the language of the instrument be- 
ing such as to vest in the grantee an estate free from anv 
condition subsequent or limitation over, it cannot be 
shown, under the pretext of proving the real considera- 
tion, that there was such a condition or limitation.*'' Ancj 
for the same reason, it appears, one cannot, after pur- 
porting to convey land, restrict the operation of the in- 
strument by introducing evidence that it was agreed, as 
part consideration of the conveyance, that some part 
of what would otherwise jjass by the conveyance, the 
growing crop for instance, or fixtures, should not pass.^" 
And the oral reservation of an easement cannot be 
asserted under the pretext of showing the considera- 
tion.^i 

550 (semhle); Whitman v. Corley, But it has been decided that 
72 S. C. 410, 52 S. E. 49; Tipton though a money consideration is 
V. Tipton, 47 Tex. Civ. App. 619, recited, it may be shown that 
105 S. W. 830, 118 S. W. 842; the conveyance was made in con- 
Martin V. Hall, 115 Va. 358, 79 sideration of a contract to sup- 
S. E. 320; Wilfong v. Johnson, port the grantor, a failure to 
41 W. Va. 283, 23 S. E. 730. comply with which justified a 
Contra, Thompson v. Corrie, 57 rescission. Martin v. Hall, 115 
Md. 197; Lawson v. Mullinix, 104 Va. 358, 79 S. E. 320; Furst v. 
Md. 156, 64 Atl. 938. Galloway, 56 W. Va. 246, 49 S. 
87 Ante, this section, note 80. E. 146; Wilfong v. Johnson, 41 

88. Jensen v. Crosby, 80 Minn. W. Va. 283, 23 S. E. 730. See 
158, 83 N. W. 43; Louisville & ante, § 89. 

N. R. Co. V. Willbanks, 133 Ga. 90. Adams v. Watkins, 103 

15. 24 L. R. A. (N. S.) 374, 17 Mich. 431, 61 N. W. 774; Kamm- 

Ann. Cas. 860, 65 S. E. 80; Miller rath v. Kidd, 89 Minn. 380, 99 

v. Edgerton, .'!8 Kan. 36, 15 Pac. Am. St. Rep. 603, 95 N. W. 213: 

894. Stewart v. McArthur, 77 Iowa. 

89. Erfurth v. Erfurth, 90 ]r,2. 41 N. W. 604. 

Wash. 521, 156 Pac. 523. 91. Louisville & N. R. Co. v. 



1632 Real Property. [§ 438 

In accordance with the rule above referred to, that 
evidence of the consideration is not admissible in con- 
tradiction of a clause of the conveyance intended to 
have a contractual or other legal etfect, are decisions 
that, when the instrument contains a covenant against 
incumbrances or of warranty it cannot be shown that, 
as part consideration for the conveyance, the grantee 
orally assumed the payment of a particular incum- 
brance, not excepted in terms from the covenant, since 
this involves a direct contradiction of the language of 
the covenant/-'^ It must be conceded, how^ever, that there 
are a considerable number of decisions to an opposite 
effect, that the grantee's oral assumption of an in- 
cumbrance may be showai to affect the liability under 
the covenant against incumbrances.^^ Occasionally these 
latter decisions are based on the theory, a sound one, it 
would seem,^^ that the assumption merely serves to aid 
in the construction of the covenant, but some are based 
on the theory that it serves to show^ the consideration. 
If evidence of a contract which involves a direct con- 

Willbanks, 24 L. R. A. (N. S.) Lamoille County Sav. Bank & 

375, 133 Ga. 15, 65 S. E. 86: Trust Co. v. Belden, 90 Vt. 535. 

Schrimper v. Chicago M. & S. & 98 Atl. 1002; Patterson v. Cappon, 

P. R. Co., 115 Iowa, 35, 82 N. W. 125 Wis. 198, 102 N. W. 1083. 

916, 87 N. W. 731; Pickett v. 93. Henderson v. Tobey, 106 

Mercer, 106 Mo. App. 689, 80 S. 111. App. 154; Carver v. Louthain, 

W. 285; Trout v. Norfolk & "7/. 38 Ind. 530; Hays v. Peck, 107 

R. Co.. 107 Va. 576, 17 L. R. A. Ind. 389, 8 N. E. 274; Blood v. 

(N. S.) 702, 59 S. E. 394; Mat- Wilkins, 43 Iowa, 565; Wachen- 

tism V. Chicago etc., R. C, 42 dorf v. Lancaster, 66 Iowa, 458, 

Neb. 545, 60 N. W. 925. 23 N. W. 522; Burnham v. Dorr, 

92. Johnson v. Walter, 6Qi 72 Me. 198; Landman v. Ingram, 

Iowa, 315, 14 N. W. 325; Flynn 49 Mo. 212; Gill v. Ferrin. 71 

V. Bourneuf, 143 Mass. 277. 58 N. H. 421, 52 Atl. 558; Deaver v. 

Am. Rep. 138. 9 N. E. 815; Deaver, 137 N. C. 240, 49 S. E. 

Simanovich v. Wood, 145 Mass. 113; Johnston v. Markle Paper 

180. 13 N. E. 391: Edison Electric Co., 153 Pa. St. 195, 25 Atl. 560. 

Illuminating Co. v. Gibby Foundry 885; Johnson v. Elmen, 94 Tex. 

Co., 194 Mass. 259, 80 N. E. 479; 168, 52 L. R. A. 162, 86 Am. St. 

Burns v. Schreiber, 43 Minn. 468, Rep. 845, 59 S. W. 253. 

45, N. W. 861; Rooney v. Kornig. 94. Post. § 452. note 42a. 
80 Minn. 483, 83 N. W. 399; 



§ 439] Transfer Inter Vivos. 1633 

tradictioii of an operative part of an instrument is ad- 
missible merely because it serves to show the considera- 
tion received by one or the other of the parties, contracts 
contradictory of other parts may also be shown, and 
in this way "a. solemn and executed written contract 
would be totally eaten away."^^''*' 

§ 439. Reality of consent— Mistake. While a con- 
veyance is presumed to have been made with the full 
and free consent of the grantor, and correctly to em- 
body his intention, it may be shown that this is not the 
case, by reason of mistake, fraud, duress, or undue 
influence. 

If the parties are in agreement as to what they wish 
and intend to do, but there is a mistake in the prepara- 
tion of the instrument, so that it fails correctly to 
embody their intention, equity will reform or rectify the 
instrument accordingly.*^^ And so a mistake in the 
words in the conveyance limiting the interest in the land 
which it was agreed should be conveyed may be correct- 
ed, as when there is an omission of words of inheri- 
tan^^e.''^ Likewise, the fact that the conveyance pur- 

95-96. See Baum v. Lynn, 72 150; Bank of Union v. Redwine, 

Miss. 932, 30 L. R. A. 441, 18 So. 171 N. C. 559, 88 S. E. 878; 

428. Huss V. Morris, 63 Pa. 367; 

97. Ivinson v. Hutton, 98 U. Melott v. West, 76 W. Va. 739, 86 

S. 79, 25 L. Ed. 66; Brown v. S. E. 759. 

Cranberry Iron & Coal Co., 84 98. Chamberlain v. Thompson, 

Fed. 930, 28 C. C. A. 567; Allia 10 Conn. 243, 26 Am. Dec. 390; 

T. Hall, 76 Conn. 322, 56 Atl. 637; Kyner v. Boll, 182 111. 171, 54 

Kerr v. Couper, 5 Del. Ch. 507; N. E. 925; Drum v. Drum, 251 

Gruing V. Richards, 23 Iowa, 288; ill. 232, 95 N. .E. 1071; Whittaker 

Canedy v. Marcy, 13 Gray (Mass.) v. Lewis, 264 Mo. 208, 174 S. W. 

373; Benson v. Markoe, 37 Minn. 369; McMillan v. Fish, 29 N. J. 

30, 5 Am. St. Rep. 816. 33 N. W. Eq. 610; Higinbotham v. Burnet.. 

38; Sparks v. Pittman, 51 Miss. 5 Johns Ch. (N. Y.) 184; Henley 

511; Barataria Canning Co. v. y. Wilson, 77 N. C. 216; Clayton 

Ott, 88 Miss. 771. 41 So 378; v. Freet, 10 Ohio St. 544; Brock 

Leitensdorfer v. Delphy, 15 Mo. v. O'Dell, 44 S. C. 22, 21 S. E. 

160, 55 Am. Dec. 137; Grant v. 976; Lardner v. Williams, 98 

Baird, 61 N. J. Eq. 389, 49 Atl- Wis. 514, 74 N. W. 346. 



1634 



Real. Property. 



[^ 439 



ports to convey land other than that which both parties 
intended should be conveyed, or that the land as con- 
veyed differs from that sold, is ground for refor- 
mation.^^ 

Occasionally it is stated that, in order to justify 
the reformation of an instrument as not correctly ex- 
pressing the agreement of the parties, there must have 
been a mutual mistake in the preparation of the instru- 
ment.^ This, however, appears questionable. If the in- 
strument fails correctly to express the agreement of 
the parties, there should be a right to have it reformed, 
regardless of the person or persons whose mistake 
caused this result.^ 

If the instrument as executed expresses the agree- 
ment of the parties, it is no ground for reformation 
that in arriving at such agreement both parties labored 
under the same misconception.^ Nor will the instru- 



99. Tillis V. Smith, 108 Ala. 
264, 19 So. 374; Felton v. Leigh, 
48 Ark. 498, 3 S. W. 638; Stevens 
V. Holman, 112 Cal. 345, 53 Am. 
St. Rep. 216, 44 Pac. 670; Earth 
V. Deuel, 11 Colo. 494, 19 Pac. 
471; Barnes v. Peterson, 136 Ga. 
364, 71 S. E. 163; Keeley v. 
Sayles, 217 111. 589, 75 N. E. 567; 
Baker v. Pyatt, 108 Ind. 61, 9 
N. E. 112; BottorfE v. Lewis, 121 
Iowa, 27, 95 N. W. 262; Critch- 
field V. Kline, 39 Kan. 721, 18 
Pac. 898; Holbrook v. Schofield, 
211 Mass. 234, 98 N. E. 97; 
Fisher v. Dent, 259 Mo. 86, 167 
S. W. 997; Blair v. McDonnell, 
5 N. J. Eq. 327; Bush v. Hicks, 
60 N. Y. 298; Pelletier v. Inter- 
state Cooperage Co., 158 N. C. 
403, 74 S. E. 112; CarroU v. 
Ryder, 34 R. I. 383, 83 Atl. 845; 
Walkeff V. Dunlop, 5 IHayw. 
(Tenn.) 271. 9 Am. Dec. 787; 
Abbott V. Flint's Adm'r, 78 Vt. 



274, 62 Atl. 721; Carlson, v. 
Druse, 79 Wash. 542, 140 Pac. 
570; Baxter v. Tanner, 35 W. 
Va. 60, 12 S. E. 1094; Fuchs v. 
Treat, 41 Wis. 404. 

1. Chapman v. Lambert, 176 
Ind. 461, 96 N. E. 459; Dough- 
erty V. Dougherty, 204 Mo. 228, 
102 S. W. 1099; Robinson v. 
Korns, 250 Mo. 663, 157 S. W. 
790; Welles v. Yates, 44 N. Y. 
525; Waslee v. Rossman, 231 Pa. 
219, 80 Atl. 643; R. M. Cobban 
Realty Co. v. Chicago, M. & 
St. P. R. Co., 52 Mont. 256; 
157 Pac. 173; 6 Pomeroy Eq. 
Jur. § 675. 

2. See 11 Columbia Law Rev. 
at p. 301, article by Roland R. 
Foulke, Esq. 

3. Holland Blow Stave Co. v. 
Barclay, 193 Ala. 200, 69 So. 118: 
Toops v. Snyder, 70 Ind. 554; 
Wise v. Brooks, 69 Miss. 891, 
13 So. 836; Pittsburg Lumber 



§ 439] 



Teansfee Inter Vivos. 



1635 



ment be reformed, if made on a valuable consideration, 
merely because it fails to accord with the intention or 
expectation of one party, provided it accords with the 
intention of the other, and with the terms of the agree- 
ment between them.^ 

The fact that the failure of the instrument as writ- 
ten to embody the intention of the parties arises from 
a mistake of law, as distinguished from a mistake of 
fact, does not prevent a reformation of the instrument 
to accord with the trae intention of the parties.^ But on 
the other hand, if the parties, by reason of a mistake 
of law, deliberately select a particular form of instru- 
ment, or deliberately insert particular language therein, 
neither of them can afterwards assert that the instru- 
ment as executed does not represent their agreement.*' 
In other words, if the conveyance is in the form agreed 



Co. V. Shell, 133 Tenn. 466, 189 
S. W. 879. 

4. James Holcombe & Rain- 
water V. Furr, 126 Ark. '251, 
190 S. W. 444; Ruby v. Ewlng. 
49 Ind. App. 520, 97 N. E. 798; 
Allen V. Roanoke R. & Lumber 
Co., 171 N. C. 339, 88 S. E. 
492; R D. Johnson Milling Co. 
V. Read, 76 W. Va 557, 85 S. 
E. 726. 

5. Orr V. Echols, 119 Ala. 340, 
24 So. 357; Haussman v. Burn- 
ham, 59 Conn. 117, 21 Am. St. 
Rep. 74, 22 Atl. 1065; Parish 
V. Camplin, 139 Ind. 1, 37 N. E. 
607; Bonbright v. Bonbrigiht. 
123 Iowa, 305, 98 N. W. 784; 
Lear v. Prather, 89 Ky. 501, 12 
S. W. 946; Wall v. Meilke, 89 
Minn. 232, 94 N. W. 688; Sparks 
V. Pittman, 51 Miss. 511; Cor- 
rigan v. Tiernay, 100 Mo. 276. 
13 S. W. 401; Plnkham v. Pink- 
ham, 60 Neb. 600, 83 N. W. 
837; Green v. Morris & E. R. 



Co., 12 N. J. Eq. 165; Kornegay 
V. Everett, 99 N. C. 30, 5 S. 
E. 30; Evants v. Strode's Adm'r, 
11 Ohio 480, 38 Am. Dec. 741; 
Brock V. O'Dell, 44 S. C. 22, 

21 S. E. 976; State v. Lorenz, 

22 Wash. 289, 60 Pac. 644; Biggs 
V. Bailey, 49 W. Va. 188, 33 S. 
E. 499; Whitmore v. Hay, 85 
Wis. 240, 39 Am. St. Rep. 838, 
55 N. W. 708. Contrn, Fowler v. 
Black, 136 III. 363, 11 L. R. A. 
670, 26 N. E. 596. 

6. Hunt V. Rhodes, 1 Pet (U. 
S.) 1. 7 L. Ed. 27; Gordere v. 
Downing, 18 111. 492; Dever v. 
Dever, 19 Ky. L. Rep. 1988, 44 
S. W. 986; Farley v. Bryant, 
32 Me. 474; Durant v. Bacot, 13 
N. J. Eq, 201; Lanning v. 
Carpenter, 48 N. Y. 408; Morton 
V. Morris, 27 Tex. Civ. App. 
262, 66 S. W. 94; 2 Pomeroy. 
Eq. Jur. § 843; Pollock, Con- 
tracts (Williston's Ed.) 576. 



1636 Eeal Property. [<§ -439 

on, the fact that, had the parties understood the law, a 
ditf erent form would have been agreed on, is not ground 
for reformation, while if the form of conveyance was 
not agreed on, but merely the end to be attained by 
the conveyance, the fact that this end is, by reason of 
a mistake of law, not attained by the conveyance ac- 
tually executed, may be ground for reformation. 

If the conveyance is purely voluntary, that is, if 
it represents a mere gift as distinguished from a sale, 
the donor is o