It is also urged that, by reason of the reasonable necessity for these lands as a playground for the pupils, the title passed as "appurtenant," and under the clause "cum pertinantes" in the deed; and the case in which easements "of necessity" have been sustained, are referred to by the court below, and the learned counsel for the respondents.
The principle was carried in this case beyond the creation of a mere easement, and was made to effect a change of title to lands other than those included within the grant. It is well settled that, in a deed, the word appurtenances will not pass any corporeal real property, title to lands, but merely incorporeal easements or rights and privileges. It cannot include a strip of land adjacent to that granted. A title to land will not pass by implication. Jackson v. Striker, 1 J. Ch. 284; Jackson v. Hathaway, 15 J. R. 447; Buzzard v. Capel, 8 B. & C. 141; s. c. in Ex. Ch. 6 Bing. 150.
Easements exist as appurtenant to a grant of lands, and as arising by implication, only by reason of a necessity to the full enjoyment of the property granted. Nothing passes by implication, or as incident or appurtenant to the lands granted, except such rights, privileges and easements as are directly necessary to the proper enjoyment of the granted estate. Upon the grant of a mill every right necessary to the full and free enjoyment of the mill passes as incident to the grant; and the necessity measures the extent and duration of the right. When the necessity ceases, the rights resulting from it cease. It must be an actual and a direct necessity. A mere convenience is not sufficient to create or convey a right or easement, or impose burdens on lands other than those granted, as incident to the grant. In all cases the question of necessity controls. Holmes v. Seely, 19 Wend. 507; Nicholas v. Chamberlain, Cro. Jac. 121; Oakley v. Stanley, 5 Wend. 523; Tabor v. Bradley, 18 N. Y. 109; Le Roy ,v. Platt, 4 Paige, 77; French v. Carhart, 1 Comst. 96; Voorhees v. Burchard, 55 N. Y. 98; N. Y. L. Ins. and T. Co. v. Milnor, 1 Barb. Ch. 353; Warren v. Blake, 54 Maine, 276; Pierce v. Sellick, 18 Com. 321. The necessity of a proper head of water for the profitable operation of a mill, a mill-yard to a saw-mill, of a way of access in order to the occupation of any granted premises, is palpable, but the necessity of a playground or an open court, except for light and air, about a schoolhouse is not apparent. There was no evidence that appurtenances of that character were either usual or necessary for any purpose connected with the proper conduct of the school, or to the health or welfare of the children. That such appendages are not a universal necessity is very evident. Indeed, there was no evidence that a space for a playground was even a convenience for any proper school purpose. It, doubtless, may be a source of pleasure to the children, but that will not suffice to create an easement by implication, or as appurtenant to the granted lands. The law will not imply that a space of ground set apart for the exercise and diversion of the children, is a necessity for a country schoolhouse, or that for all recognized school purposes the district may not have and enjoy the schoolhouse and premises fully without such an adjunct, and it would require very cogent evidence to establish a right to such grounds as passing by implication and as an incident to a conveyance of a schoolhouse. Here there was no evidence to warrant the submission of the necessity of such an incident to the jury.
It was error for the judge to submit it as the pivotal question of fact in the action, for two reasons: 1st. It was, under the circumstances, an immaterial question, and neither the cause of action or defense properly depended upon its determination. And 2d. There was no evidence that any necessity existed for the possession by the district of this or any other parcel of ground as a playground. This would lead to a reversal of the judgment unless on examination of the grant, in connection with the evidence and the plaintiff's title, it is evident that the action cannot be maintained.1
(5.) Delivery and Acceptance of the Deed
155 Illinois, 284.. - 1895.
Plaintiffs bring this action to get possession of the deed described in the opinion, and to establish and confirm their title to the property described in the deed.
Carter, J. - * * * But the question still arises whether or not, after considering all proper evidence and rejecting all held to be improper, the decree of the trial court can be sustained. "No particular form or ceremony is necessary to constitute a delivery" of a deed. " It may be by acts without words, or by words without acts, or by both. Anything which clearly manifests the intention of the grantor and the person to whom it is delivered, that the deed shall presently become operative and effectual, that the grantor loses all control over it, and that by it the grantee is to become possessed of the estate, constitutes a sufficient delivery. The very essence of the delivery is the intention of the party." Bryan v. Wash, 2 Gilman, 557; Cline v. Jones, III 111. 563, and cases there cited. It is well settled that the law makes stronger presumptions in favor of the delivery of deeds in cases of voluntary settlements, especially in favor of infants, than in ordinary cases of bargain and sale. The acceptance by the infant will be presumed. And it is even held that an instrument may be good as a voluntary settlement, though it be retained by the grantor in his possession until his death, provided the attending circumstances do not denote an intention contrary to that appearing upon the face of the deed. Bryan v. Wash, and Cline v. Jones, supra; Reed v. Douthit, 62 111. 348; Walker v. Walker, 42 111. 311; Otis v. Beckwith, 49 111. 121; Masterson v. Cheek, 23 111. 72; Soaverbye v.Arden, 1 Johns. Ch. 242; Bunn v. Winthrop, Id. 329; Scrugham v. Wood, 15 Wend. 545; Perry on Trusts, § 103; Urann v. Coates, 109 Mass. 581; Thompkins v. Wheeler, 16 Pet. 114. And it was said in Weber v. Christen, 121 111. 91, that "the crucial test, in all cases, is the intent with which the act or acts relied on as the equivalent or substitute for actual delivery were done." The deed in question must have taken effect at once upon its acknowledgment and delivery to Grinton, or not at all, and the real question is, with what intention was the deed placed in the hands of Grinton? Blackman v. Preston, 123 111. 381; Hayes v.Boylan, 141 111. 400; Bovee v.Hinde, 135 111. 137; and cases supra. Nothing was said by the grantor at the time to indicate an intention that the deed should not take effect. His instructions were to take the deed, and take care of it - whether for himself or the grantees, he did not say. The grantees were his nephews and nieces, seven in number, the adults living in different places, and the minors with their father, his brother, on the premises conveyed. Under the circumstances it may have been a question of some difficulty, in his mind, to determine to whom the deed should be delivered. Instead of delivering it to either of the grantees he could lawfully deliver it to a third person for their benefit. He did deliver it to a third person, and whether for their benefit or only as custodian for himself, is a question of fact to be determined from the evidence. Defendants insist that Grinton was the grantor's clerk, and that his possession was the possession of the grantor. It is not clear from the evidence what the business relations were between Grinton and Martin C. Bissel. Grinton testified that he was not employed by the day, week, month, or year; that he always had a partnership contract with Bissel in the profits, and that that was the case when these papers were executed; that the "partnership papers," as witness called them, as well as his individual papers and those of Martin C. Bissel, were all kept in the safe. Whether he was responsible for the losses and expenses of the business is not disclosed by the evidence. From the evidence given he may have been a partner in business with Bissel, or merely an employee receiving a share of the profits as a measure of his pay for his services. In Lockwood v. Doane, 107 111. 235, this court held that: "Where parties agree to share in the profits of business, the law will infer a partnership between them in the business to which the agreement refers; but this presumption may be disproved. It is prima facie evidence, and will control until rebutted." Niehoff v. Dudley, 40 111. 406. Under the evidence and these authorities, it would seem that the relation between Grinton and Martin C. Bissel, at the time of the transaction in question, must be treated as that of a partnership. If so, the transaction not pertaining to their partnership affairs, possession of the deed by Grinton was not, by virtue of their relation, the possession of the grantor, but was the possession of a third person. Grinton took this deed, and placed it in an envelope, and put it in the safe, and kept it in his possession for 15 years thereafter, until the trial in the Circuit Court. Had Martin intended to retain control of it, he could as well have placed it with his own papers in the safe. This he did not do, nor did he ever assume or assert any control over the deed afterwards. Grinton was a notary public, and as such took the acknowledgment. By this acknowledgment the grantors acknowledged that they signed, sealed, and delivered the instrument as their free and voluntary act, for the uses and purposes expressed in it. Whether, on an issue as to the delivery of a deed, otherwise left in doubt by the proofs, such an acknowledgment would be sufficient evidence of a delivery, it is not necessary in this case to decide for, as we conceive, the intention of the grantor is otherwise disclosed by the evidence with sufficient clearness, and this, too, whether Grinton was a partner or a mere employee of Martin C. Bissel. We find nothing in the attending circumstances denoting an intention on the part of the grantor that the deed should not take effect; but, on the contrary, there is sufficient evidence that he intended the deed to become presently effective. He at the same time executed and delivered to his brother, the father of plaintiffs in error, and to his brother's wife, who were already in possession of the property, a life lease therefor. The deed was, on its face, made subject to the lease. By the lease the lessees were required to insure the property for the benefit, in part, of themselves and in part of the grantees. The lease recognized the grantees as the owners of the property, and for breach of any of the covenants in the lease they were authorized to declare the term ended, and to enter and expel the lessees. The lease and deed were executed together, and were parts of the same transaction whereby Martin C. Bissel disposed of all his interest in the possession of and title to the property. He reserved nothing in either the lease or deed. The delivery of the lease to, and the possession of the property by, William, are not disputed. The right to declare a forfeiture and to re-enter was not reserved to the lessor, but to plaintiffs in error, the grantees in the deed. It would seem, from this provision that, at the time of the transaction Martin C. Bissel intended that the title should vest in appellants, and that he understood it did so vest. Then, again, it was clearly proved that after William had left the property, and Martin had taken possession and made repairs, he leased it, paid the taxes, and, to all outward appearances, acted as the owner, he told two witnesses that the property belonged to his brother's children, and that he could not, for that reason, sell or dispose of it, but would attend to it - evidently meaning that he was taking care of it for his brother and his brother's children. It may be that after the lapse of years he concluded that he was entitled to and would retain the property as his own. In other words, he may have changed his mind in reference to making a gift of the property to these beneficiaries, honestly concluding that under the circumstances he had a right to do so; but if he did so conclude he was simply mistaken as to the legal effect of what had been done. The facts are somewhat similar to those in Douglas v. West, 140 111. 461, 31 N. E. 403. See also Winterbottom v. Pattison, 152 111. 334, 38 N. E. 1050. We are satisfied from the evidence that Martin C. Bissel intended that the deed should take effect when he executed and acknowledged it and delivered it to Grinton, and it must be so held. The decree of the Circuit Court is reversed, and the cause remanded, with directions to dismiss the cross-bill, and to enter a decree in accordance with the prayer of the bill of plaintiffs in error. Reversed and remanded.