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 .
47. Cherry v. Brizzolara. 89 Ark. 309, 21 D. R. A. (N. S.) 508, 116 S. W. 668; Carbrey v. Willis, 7 Allen (Mass.) 364, 83 Am. He . 688; Mcsweeney v. Comm. 185 Mass. 371, 70 X. E, 429; Brown v. Fuller, 165 Mich. 162, 33 L. R. A. (X. S.) 459, Ann. Cas. 1912C. 853, 130 X. W. 621; Dabney v. Child, 95 Miss. 585, 48 So. 897; Denman v. Mentz, 63 N. J. Eq. 613, 52 Atl. 1117; Howley v. Chaffee, 88 Vt. 468, 93 Atl. 120. Thai the presence of such a covenant in the conveyance is Immaterial, see Bennett v. Booth, 70 W. Va. 264, 39 L. R. A. (X. S.) CIS. 73 S. E. 909; Harwood v. Benton, 32 Vt. 724.
2 R. P. - 7 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 being 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.48 Likewise, in this country, it appears to be considered that, if one builds houses separated by a partition wall, and the houses are afterwards 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.49 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 may thus be recognized in favor of the grantor, by way of implied reservation, as corresponding to a preexisting quasi easement, the user of the land conveyed for the benefit of that retained must, it is said, be apparent.50 And presumably any other requirement that may in the particular jurisdiction 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 essential to such an implication in favor of the grantor.
48. Richards v. Rose, 9 Exch. 218; Suffield v. Brown, 4 De Gax. J. & S. 185; Wheeldon v. Burrows, 12 Ch. Div. 31. See Stevenson v. Wallace, 27 Grat. (Va.) 77; Tunstall v. Christian, 80 Va. 1, 56 Am. Rep. 581; Adams v. Marshall, 138 Mass. 228. Compare Clemens v. Speed, 93 Ky. 284, 19 L. R. A. 240, 19 S. W. 660.
49. Bartley v. Spaulding 21
App. Cas. (D. C.) 427; Ingalls v. Plamondon, 75 111. 118; Everett v. Edwards, 149 Mass. 588, 5 L. R. A. 110, 14 Am. St. Rep. 462. 22 N. E. 52; Carlton v. Blake, 152 Mass. 176, 23 Am. St. Rep. 818, 25 N. E. 83; Partridge v. Gilbert, 15 N. Y. 601, 69 Am. Dec. 632; Rogers v. Sinsheimer, 50 N. Y 646; Heartt v. Kruger, 121 N. Y. 386, 9 L. R. A. 135, 18 Am. St.
- (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 langiiage of the conveyance in accordance with what appears to be the necessity of the case, in order that the land conveyed, or sometimes, the land retained, may be properly available 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 the pollution of air or water, as is evidently necessary to enable the land to be used for that business,51 and if he conveys it for the purpose of erecting a building, he may well be regarded as granting such rights of support as are necessary for the building.52 So, if one conveys land for railroad purposes, the conveyance involves in effect a grant of the right to construct and operate the railroad in a proper manner, even in derogation of the grantor's natural rights as regards land retained by him,53 and such an easement is likewise vested in the railroad when the land is taken under condemnation proceedings.54 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.54a And in some states, while an easement of light is not recognized merely because of a preexisting quasi easement 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.54b Likewise when buildings on adjoining
Rep. 829, 24 N. E. 841; Schaefer v. Blumenthal, 169 N. Y. 221, 62 N. E. 175.
But see Cherry v. Brizzolara, 89 Ark. 309, 21 L. R. A. (N. S.) 508, 116 S. W. 668, to the effect that this is so only if another wall cannot be built at a reasonable expense. And as perhaps opposed to the implication of an easement of support in such case see Clemens v. Speed, 93 Ky. 284, 19 L. R. A. 240, 19 S. W. 660; Williamson Inv. Co. v. Williamson,
96 Wash. 529, 165 Pac. 385.
50. Biddison v. Aaron, 102 Md, 156, 62 Atl. 523; Jobling v. Tut-tle, 75 Kan. 351, 9 L. R. A. (N. S.) 960, 89 Pac. 699; Scott v. Beutel, 23 Gratt. (Va.) 1; Sellers v. Texas Cent. Ry. Co., 81 Tex. 458, 13 L. R. A. 657, 17 S. W. 32. As to this requirement, see ante, this subsection, notes 1-5.
51. Gale, Easements (8th Ed.) 113, note f; Goddard, Easements. (6th Ed.) 265; Hall v. Lund, 1 Hurl. & C. 676; Huntington .& K.