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 .
Land Devel. Co. v. Phoenix Powder Mfg. Co., 40 W. Va. 711, 21 S. E. 1037.
And if he sells and conveys land adjoining his pond for an ice business he in effect grants a privilege to demand that the pond be not drained. See 'marshall Ice Co. v. Laplant, 136 Iowa, 621, 12 L. R A. (N. S.) 1073, 111 N. W. 1016.
52. Caledonian Ry. Co. v. Sprot, 2 Macq. H. L. Cas. 453; Rigby v. Bennett, 21 Ch. Div. 559; Siddons v. Short, 2 C. P. Div. 572; Freeholders of Hudson County v. Woodcliff Land Co., 74 N. J. L. 355, 65 Atl. 844.
53. See Lewis, Eminent Domain, Sec. 474.
54. Elliot v Northeastern lots belonging to a single person are dependent on one another for support, and he conveys one of the lots, retaining the other, it may be considered that an easement of support "by necessity" exists in each lot and building in favor of the other;54c and even when there is a building upon but one of the lots, it would seem reasonable to recog-nize an easement of support, by way of necessity, for the land of such lot with the added weight of the building.54d
Ry., 10 H. L. Cas. 333; Manning v. New Jersey Short Line R. Co., 80 N. J. L. 349, 32 L. R. A. (N. S.) 155, 78 Atl. 200.
54a. Williams v. Gibson, 84 Ala. 228, 5 Am. St. Rep. 368, 4 So. 350; Gordon v. Park, 219 Mo. 600, 117 S. W. 1163; Gordon v. Million, 248 Mo. 155, 154 S. W. 99; Marvin v. Brewster Co., 55 X. Y. 538; Fowler v. Delaplain, 79 Ohio St. 279, 21 L. R. A. (X. S.) 100, 87 N. E. 260; Turner v. Reynolds, 23 Pa. St. 199; Potter v. Rend, 201 Pa. 318, 50 Atl. 821; Dewey v. Great Lakes Coal Co., 236 Pa. 498, 84 Atl. 913; Armstrong v. Maryland Coal Co., 67 W. Va. 589, 69 S. E. 195; Dand v. Kingscote, 6 Mees. & W. 174.
54b. Ante, Sec. 363(a), note 97.
- Ways of necessity. By far the most usual instance of an easement of necessity is a way of neces-sitv. Such an easement ordinarily arises when one conveys to another land entirely surrounded by his, the grantor's, land,55 or which is accessible only across either the grantor's land or the land of a stranger.56 In such a case, unless the conveyance is regarded as giving, as appurtenant to the land conveyed, a right of way over the land retained by the grantor, the grantee can make but a limited use, if any, of the land
54c. Ante, Sec. 363b, notes, 48, 49.
54d. See Sterrett v. Baudler, - Iowa, - , 165 N. W. 216.
55. Pomfret v. Ricroft, 1 Saund. 323, note 6; Pinnington v. Galland, 9 Exch. 1; Taylor v. Warnaky, 55 Cal. 350; Collins v. Prentice, 15 Conn. 39, 38 Am. Dec. 61; Mead v. Anderson, 40 Kan. 203, 19 Pac. 708; Leonard v. Leonard, 2 Allen (Mass.), 543; Powers v. Harlow, 53 Mich. 507, 51 Am. Rep. 154, 19 N. W. 257; Board of Sup'rs of Lamar County v. Elliott. 107 Miss. 841, 66 So. 203; Kimball v. Cochecho R. Co., 27 N. H. 448, 59 Am. Dec. 387; Holmes v. Seely, 19 Wend. (N. Y.) 507; Bond v. Willis, 84 Va. 796, 6 S. E. 136.
56. Gilfoy v. Randall, 274 111. 128. 113 N. E. 88; Thomas v. Mccoy, 48 Ind. App. 403, 96 N. E. 14; Fairchild v. Stewart, 117 Iowa, 734, 89 N. W. 1075; Adams v. Hodgkins, 109 Me. 361, 84 Atl. 530; Zimmerman v. Cockey, 118 Md. 491, 84 Atl. 743; Pleas v. Thomas, 75 Miss. 495, 22 So. 820: Higbee Fishing Club v. Atlantic City Elec. Co., 78 N. J. Eq. 434, 79 Atl. 326; Palmer v. Palmer, 150 N. Y. 139, 55 Am. Rep. 653, 41 N. E. 966; Wooldridge v. Cough-lin, 46 W. Va. 345, 33 S. E. 233; Proudfoot v. Saffle, 62 W. Va. 51, 12 L. R. A. (N. S.) 482, 57 S. E. 256.
"The deed of the grantor as much creates the way of necessity as it does the way by grant. Tinconveyed to him, and the courts, in pursuance of considerations of public policy favorable to the full utilization of the land, and in accordance with the presumable intention of the parties that the land shall not be without any means of access thereto, have established this rule of construction that, in the absence of indications of a contrary intention, the conveyance of the land shall in such case be regarded as vesting in the grantee a right of way across the grantor's land.57
Not only may a way of necessity arise in favor of the grantee of land, but it may also arise in favor of the grantor, when one conveys land which is so situated as to render land retained by him inaccessible except over the land conveyed or the land of a stranger.58 only difference between the two is, that one is granted in express words and the other only by implication." Nichols v. Luce, 24 Pick. (Mass.) 102, 35 Am. Dec. 302, per Morton, J.
57. "Although it is called a way of necessity, yet in strictness, the necessity does not create the way, but merely furnishes evidence as to the real intention of the parties. For the law will not presume, that it was the intention of the parties, that one should convey land to the other, in such manner that the grantee could derive no benefit from the conveyance; nor that he should so convey a portion as to deprive himself of the enjoyment of the remainder. The law, under such circumstances, will give effect to the grant according to the presumed intent of the parties." Waite J., in Collins v. Prentice, 15 Conn. 39, 38 Am. Dec. 61.
58. Clark v. Cogge, Cro. Jac. 170; Pinnington v. Galland, 9 Exch. 1; Corporation of London v. Riggs, 13 Ch. Div. 789; Collins v. Prentice, 15 Conn. 39, 38 Am. Dec. 61; Stamper v. Mcnabb, 172 Ky. 253, 189 S. W. 216; White-house v. Cummings, 83 Me. 91, 23 Am. St. Rep. 756, 21 Atl. 743; Jay v. Michael, 92 Md. 198, 48 Atl. 61; Nichols v. Luce, 24 Pick. (Mass.) 102, 35 Am. Dec. 302; New York & N. E. R. Co. v. Board of Railroad Com'rs, 162 Mass. 81, 38 N. E. 27; Pleas v. Thomas, 75 Miss. 495, 22 So. 820; Herrin v. Sieben, 46 Mont. 226, 127 Pac. 323; Pingree v. Mcduffie, 56 N. H. 306; Shoemaker v. Shoemaker, 11 Abb N. Cas. (N. Y.) 80; Meredith v. Frank, 56 Ohio St. 479, 47 N. E. 656; Willey v. Thwing, 68 Vt. 128, 34 Atl. 428; Hoffman v. Shoemaker, 69 W. Va. 233, 34 L. R. A. (N. S.) 632, 71 S. E. 198.
In such a case the conveyance is construed as passing, not land free from any easement, but land subject to an easement of a right of way in favor of the land retained. Such an implied reservation of an easement to a certain extent involves a violation of the rule which precludes one from derogating from his own grant, but it is recognized and upheld by the courts from the considerations of public policy above mentioned."9 The fact that the conveyance contains a warranty or other covenant of title has been regarded as insufficient to exclude such an implication,60 though it might no doubt be excluded by language in the conveyance or, it seems, by evidence of surrounding circumstances, calling for a different construction.60a order to extract the minerals, and of constructing roads, tram and railway tracks to such an extent as may be necessary for this purpose,62 and such a conveyance, moreover, in order that it may be effective, ordinarily involves of necessity the privilege of sinking shafts through the surface of the land for the purpose of extracting the minerals.62a What is in effect a way of necessity may also exist in connection with the grant of an easement, in so far as this involves the necessity of passing over the grantor's land in order to exercise the easement.63