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 (semble); 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. Si. 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 conveyance, 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.

If one conveying land to A undertakes by the saine 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 convey land to one person and an easement 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,16 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.17 It can hardly 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.18

There are several cases to the effect that an attempted 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,19 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 as280. See Elliot v. Small, 35 Minn. 396, 59 Am. Rep. 329, 29 N. W. 158.

16. Ante, Sec. 361.

17. As in England words of reservation of an easement are construed as operating by way of re-grant from the transferee of the land. See Doe v. Lock, 2 Ad. & El. 743; Wickham v. Hawker 7 Mees. & W. 63; Durham & Sunderland Ry. Co. v.

Walker, 2 Q. B. 940. Ante, this section, note 99.

18. There was no question suggested as to the validity of such a reservation In Wiley v. Ball, 72 W. Va. 685, 79 S. E. 659.

19. Bridger v. Pierson, 45 N. V. 601; Bessom v. Freto, 13 Mek. (Mass.) 523; Hodge v. Boothby. 48 Me. 68; Martin v. Cook, 102 Mich. 267, 60 N. W. 679.

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 attempted 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.20 Regarding it merely as a matter of construction, such a view would seem to violate the recognized rule21 that words of exception or reservation are to be construed in favor of the grantee rather than of the grantor. Apparently opposed 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,2la 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. Consequently the statement, occasionally found, that the reservation of an existing easement in favor of a third person constitutes an exception22 is, it is submitted, somewhat lacking in accuracy. In so far as the language of the conveyance may be construed as excepting- a part of the land, when there was previously merely an easement in a third person in such part,23 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 language operates as an exception in favor of the grantor when it in terms excepts an ascertained part, and erroneously states that such part has been sold or conveyed to another.24

20. In Young Petitioner, 11 R. I. 636, it was held that a clause undertaking to vest in a third person a right to take timber could not be upheld as an exception, and was void.

21. Wiley v. Sirdorus, 41 Iowa 224; Wellman v. Churchill, 92 Me. 193, 42 Atl. 352; Derby v. Hall, 2 Gray (Mass.) 236; Bolio v. Marvin, 130 Mich. 82. 89 N. W. 563; Duryea v. New-york, 62 N. Y. 592; Towns v.

Brown - Ky.) - 114 S. W. 773; Massey v. Warren, 52 N. C. 143; Klaer v. Ridgway, 86 Pa. St. 529.