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 .
Since a reservation as well as a grant of a right of way may thus be implied on the ground of necessity, it is immaterial, for the purpose of establishing a way on this ground, whether the asserted dominant tenement was disposed of by the common owner before or after the asserted servient tenement.
In case the owner of land conveys to another timber growing thereon, the conveyance is to a great extent nugatory unless the grantee has the privilege of going on the land in order to cut the timber, and consequently the instrument would ordinarily be construed as granting such privilege or, in other words, he has a way of necessity.61 And so a conveyance of minerals in the soil is ordinarily regarded as giving the privilege of passing over the grantor's land in
59. See Packer v. Welsted, 2 Sid. 39, 111; Dutton v. Tayler, 2 Lutw. 1487; Pinnington v. Gal-land, 9 Exch. 1.
60. Meredith v. Frank, 56 Ohio St. 479, 47 N. E. 656; Mcewan v. Baker, 98 111. App. 271; Powers v. Heffernan, 233 111. 597, 84 N. E. 661; Brigham v. Smith, 4 Gray (Mass.) 297, 64 Am. Dec. 76; New
York etc. R. C. v. Board of Railroad Com'rs, 162 Mass. 81, 38 N. E. 27; Jay v. Michael, 92 Md. 198, 48 Atl. 61.
60a. Post, this section, notes 70-75.
61. Pine Tree Lumber Co. v. Mckinley, 83 Minn. 419, 86 N. W. 414; Worthen v. Garno, 182 Ma 243, 65 N. E. 243.
A way of necessity does not, as is sometimes supposed, exist merely by reason of the fact that otherwise one has no access to his land.64 As above stated, it
62. Dand v. Kingscote, 6 M. & W. 174; Consolidated Coal Co. v. Savitz, 57 111. App. 659; Marvin v. Brewster Iron Mining Co., 55 X. Y. 538, 14 Am. Rep. 322. Baker v. Pittsburg C. & W. R. Co., 219 Pa. 398, 68 Atl. 1014; Pearne v. Coal Creek M. & M. Co., 90 Tenn. 619, 18 S. W. 402; Porter v. Mack Mfg. Co., 65 W. Va. 636, 64 S. E. 853; 1 Barringer & Adams, Mines & Mining, 576, 2 Id. 598.
62a. Cardigan v. Armitage, 2 Barn. & C. 197; Hooper v. Dora Coal Min. Co., 95 Ala. 235, 10 So. 652; Ewing v. Sandoval C. & M. Co., 110 111. 290; Ingle v. Bottoms, 160 Ind. 73, 66 N. E. 160; Marvin v. Brewster Iron Mining Co., 55 N. Y. 538; Baker v. Pittsburg C. & W. R. Co., 219 Pa. 398, 68 Atl. 1014; 3 Lindley, Mines, Sec. 813.
In Chartiers Block Coal Co. v. Mellon, 152 Pa. St. 286, 18 L. R. A. 702, 34 Am. St. Rep. 645, 25 Atl. 597, the owner of land having conveyed to another the strata of coal beneath the surface and subsequently discovering the presence of oil beneath the coal, asserted the right to bore wells through the coal, and his claim was sustained. It was recognized however that it could not well be sustained on the theory of a way by necessity, without a considerable modification of that doctrine, and the view was asserted that the right of access in such case should be sustained as a natural right. See editorial note 17 Harv. Law Rev. at p. 47. And on the authority of this case it was held that there was a natural right to sink an artesian well through the strata of coal. Pennsylvania Cent. Brew. Co. v. Lehigh Valley Coal Co., 250 Pa. 300, 95 Atl. 47.
63. Willoughby v. Lawrence, 116 111. 11, 56 Am. Rep. 758, 4 N. E. 356; R. J. Gunning v. Cusack, 50 111. App. 290.
64. Bullard v. Harrison, 4 Maule & S. 387; Banks v. School arises in connection with a conveyance of land by one who retains adjoining land, and consequently it is necessary, in order to establish such a way, to show that at some time in the past the land for the benefit of which the way is claimed and that in which it is claimed belonged to the same person.65 Provided this unity of ownership is shown to have existed, its remoteness either in point of time or by reason of intervening conveyances appears to be immaterial.66
Whether the previous ownership by the state or federal government of both pieces of land, with a subsequent grant or sale by it of one or both of them, is sufficient to justify a rinding of a way of necessity, appears to be open to question. In one case67 it was held that a right of way of necessity was to be regarded as reserved upon a grant by the federal government, but there are two cases to the effect that the doctrine of ways of necessity has no application in connection with such a grant.68 And it has also been decided that such a right does not exist in favor of a grantee of the state over land retained by the state.69 It is not entirely clear why a conveyance by the government should be subject to a different rule in this respect from a conveyance by a private individual. The same intention may well be imputed to it as to an individual, not itself to hold or to vest in another land which cannot be utilized for lack of a means of approach, and the same considerations of public policy in favor of the utilization of the land apply in both cases.
Directors of Dist. No. 1 of Mclean County, 194 111. 247, 62 X. E. 604; Whitehouse v. Cummings, 83 Me. 91, 23 Am. St. Rep. 756, 21 Atl. 743; Brice v. Randall, 7 Gill & J. (Md.) 349; Nichols v. Luce, 24 Pick. (Mass.) 102, 35 Am. Dec. 302; Roper Lumber Co. v. Richmond Cedar Works, 158 N. Car. 161, 73 S. E. 902; Ellis v. Blue Mountain Forest Ass'n, 6f) N. H. 385, 42 L. R. A. 570. 41 Atl. 856; Carmon v. Dick, 170 N. C. 305, 87 S. E. 224; Mckinnev v. Duncan, 121 Tenn. 265, 118 S. W. 683; Tracy v. Atherton, 35 Vt. 52, 82 Am. Dec. 621; Sc'hu-lenbarger v. Johnstone, 46 Wash. 202, 35 L. R. A. (N. S.) 941, 116 Pac. 843.
65. Thrump v. Mcdonnell, 120 Ala. 200, 24 So. 353; Stewart v. Hartman, 46 Ind. 331; Ellis v. Blue Mountain Forest Ass'n, 69 N. H. 385, 42 L. R. A. 570, 41 Atl. 856; Dudley v. Meggs, 54 Okla. 65, 153 Pac. 1122; Mcburney v. Glenmary Coal & Coke Co., 121
Tenn. 275, 118 S. W. 694 (semble); Tracy v. Atherton, 35 Vt. 52, 82 Am. Dec. 621; Crotty v. New River etc. Coal Co., 72 W. Va. 68, 78 S. E. 233.
66. See Taylor v. Warnaky, 55 Cal. 350; Logan v. Stogsdale, 123 Ind. 372, 8 L. R. A. 58, 24 N. E. 135; Conley v. Fairchild 142 Ky. 271, 134 S. W. 142; Feoffees of Grammar School in Ipswich v. Jeffrey's Neck Pasture, 174 Mass. 572, 55 N. E. 462; Crotty v. New River & Pocahontas Consol. Coal Co., 72 W. Va. 68, 78 S. E 233.