This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
18a. Estabrooks v. Estabrooks, Til Vt. 515, 101 Atl. 584.
19. Mcmahan v. Williams. 79 Ala. 288; Gardner v. San Gabriel Valley Bank. 7 Cal. App. 106, 93 Pac. 900: Blanchard v. Maxson. S4 Conn. 489, 80 Atl. 206; CheroSec. 350] Easements. 123] 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,19a while an easement in the land retained, created by the instrument by which land is conveyed, will ordinarily be appurtenant to the land conveyed.19b But a different view has been indicated in one case, to the effect 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 gross.19c In one case the fact that the grant of the easement was on the same day on which land had been granted was regarded as showing that it was appurtenant to such land.19d
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 apkee Mills v. Standard Cotton Mills. 138 Ga. 856, 76 S. E. 373; Whit-aker v. Harding. 256 Hi. 148, 99 N. E. 945; Lucas v. Rhodes, 48 Ind. App. 211, 94 N. E. 914; Presbyterian 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 Mass. 573, 99 N. E. 466; Lidgerding v. Zign go, 77 Minn. 421, 77 Am. St. Rep. 677, 80 N. W. 360: Ruhnke v. Aubert, 58 Ore. 6, 113 Pac. 38; Smith v. Garbe, 86 Neb. 94, 124 N. W. 921; Wilson 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. Williams, 82 Va. 462, 4 S. E. 591; Spensley v. Valentine, 34 Wis. L54. Hut sep Wilder v. Wheeler, 60 X.
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, 42 Minn. 398, 45 N. W. 958; Presbyterian 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 L. R. A. 617, 45 X. W. 414.
19c. Shreve v. Mathis, 63 X. J. Eq. 170. 52 Atl. 234.
19d. Moll v. Mccauley, 83 Iowa, 677, 50 N. W. 216.
Purtenant to such land.19e In the 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.19f If the language of the grant or reservation of an easement is such as itself to show that the easement was created solely for exercise 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.19g one particular piece of land, and also of the consideration of its utility in connection with such land or its lack of utility apart therefrom.21
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 occasionally been regarded as showing that the right is not intended to be appurtenant to such land, but is in gross.19h 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.20
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 with,
19e. Amidon v. Harris, 113 Mass. 59.
19f. Dennis v. Wilson, 107 Mass. 591. See Lidgerding v. Zig-nego, 77 Minn. 421, 77 Am. St. Rep. 677, 80 N. W. 360; Mc-daniel v. Walker, 46 S. C. 43, 24 S. E. 378.
19g. Lide v. Hadley, 36 Ala. 627, 76 Am. Dec. 338; Mendell v. Delano, 7 Mete. (Mass.) 176; George v. Cox, 114 Mass. 382; Valentine v. Schreiber, 3 N. Y. App. Div. 235, 38 N. Y. Supp. 417; Gunson v. Healy, 100 Pa. St. 42; French v. Williams, 82 Va. 462,
4 S. E. 591; Thorpe v. Brumfitt, L. R. 8 Ch. 650.
19h. Wagner v. Hanna, 38 Cal. Ill, 99 Am. Dec. 354; Metzger v. Holwick, 17 Ohio Circ. Ct. 605.
20. Hopper v. Barnes, 113 Cal. 636, 45 Pac. 874; Durkee v. Jones, 27 Col. 159, 60 Pac. 618; Goldstein v. Raskin, 271, 111. 249, 111 N. E. 91 (distinguishing Garrison v. Rudd, 19 111. 558, as having been at law); Dennis v. Wilson, 107 Mass. 591; Salem Capital Flour Mills v. Stayton Water Ditch & Canal Co., 33 Fed. 146.
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.22
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 particular 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 becomes appurtenant to the land.22a