Story Case

Mr. Ryan owned two houses on the north shore of Lake Michigan, one of which he sold to Mr. William Davis of St. Louis, as a summer home. There was only one practical way to drain the rain water from the premises sold to Mr. Davis, and that was over the property retained by Mr. Ryan. When Mr. Ryan sold this other property to Mr. Frank Ostler, the latter complained concerning the presence of the drain from the house of Mr. Davis, and requested him to have it removed. Mr. Davis argued that he bought the privilege of this means of drainage, for his deed recited "and appurtenances to premises are also conveyed." Mr. Ostler replied that he did not believe the word " appurtenances" was meant to cover anything on his land. Mr. Davis replied that he was willing to leave the question to Mr. A. Rider, who was attorney for both property owners. What will Mr. Rider decide!

Ruling Court Case. Thomas Vs. Owen, Volume 20 Queen's Bench Decision, Page 225

Thomas and Owen had been tenants, under the same landlord, of adjoining farms near the sea coast, to which a highway ran through Owen's farm. Thomas' farm communicated with the highway by a private road, which joined the highway at a place called Old Bar. From a point on Thomas' farm, and on the private road, an ancient lane ran to a spot on the highway near Old Bar to the sea coast. This lane was not only the nearest way from his farm to the sea coast, but was also level, whereas the private road was steep and hilly. In 1873 the landlord conveyed to Owen the farm which he had previousy rented. The conveyance contained no reference to the lane or its uses by Thomas, but the soil of the lane was admittedly included in the measurements of Owen's farm. In 1878, the landlord conveyed to Thomas the farm previously occupied by him. The conveyance said nothing specifically about the lane in question, but simply conveyed the farm "and all houses, buildings and appurtenances thereto belonging." Owen interfered with Thomas' use of this lane, and this was an action brought by Thomas for damages.

Thomas contended that the word "appurtenances" was sufficient to give to him the use of the farm conveyed to him as usually used and occupied, which would give him the benefit of this lane.

Decision: The conveyance to Owen did not amount to a demise of the soil of the lane free from Thomas' right of way, insomuch as the landlord, not being in possession at the time of the conveyance to Owen, could not make such demise without derogating from the grant to Thomas, under which his then existing tenancy was constituted. When the conveyance was made to Owen, the landlord impliedly reserved the use of this lane. The right of way over this lane passed to Thomas by the conveyance of 1878, under the word "appurtenances."

Lord Justice Fry said: "No doubt the word'appurtenances' is not apt for the creation of a new right, and the word 'appurtenant' is not apt to describe a right which had never previously existed: and, therefore, the mere grant of all appurtenances or of all ways appurtenant to the principal subject of the grant has been held in many cases not to create a new right of way where the right was not pre-existing at the date of the grant. But the word 'appurtenances' has easily admitted of a second meaning, and as equivalent to 'usually occupied.'" Judgment was given for Thomas.

Ruling Law. Story Case Answer

An appurtenance is that which belongs to another thing as a principal, and which passes as an incident to the principal thing when it is passed. Thus, when property is conveyed with all appurtenances, this means that the property is passed with all incidents necessary to the full use and enjoyment thereof, as it had been previously used and enjoyed by the grantor. An appurtenance must be something which adds value to the property to which it is appurtenant, as, for instance, a drainage right, a roadway, right to take water, to take ice; a right appurtenant to one man's land to exercise some privilege on another's land, cannot be separated from the former's land.

In the Story Case, the drain was a visible part of the property right conveyed to Davis. It was reasonably necessary to the enjoyment of his property and passed as an appurtenance; therefore, Mr. Ostler, as servient tenant, must permit the drain.