67. Herrin v. Siebern, 46 Mont. 226, 127 Pac. 323, where it was held that on a grant by the United States of odd numbered sections of land, there was Implied reservation of a way of necessity in favor of the United States for the benefit of private persons desiring to settle on the land retained, or to go thereon for proper purposes, as to search for minerals or graze cattle.

Since the grant or reservation of a way of necessity is implied merely to accord with the presumed intention of the parties, such an implication may be excluded by particular language in the conveyance.70 So the fact that there was an express 'provision for some particular mode of access has been regarded as preventing the recognition of a way of necessity.71 And a like effect has been given to a reference in the conveyance to adjoining land, which extended to the highway, as belonging to the grantee, the grantee claiming under such conveyance being precluded from denying the correctness of such reference and consequently from denying that he has this other means of access to the highway.72 It might also be excluded, it seems, by evidence of extrinsic facts.73 An intention

68. Bully Hill Copper Min. & Smelting Co. v. Bruson, 4 Cal. App. 180, 87 Pac. 237; United States v. Rindge, 208 Fed. 611.

69. Pearne v. Coal Creek M. & M. Co., 90 Tenn. 619, 18 S. W. 402.

70. Seely v. Bishop, 19 Conn. 128.

71. Georke Co. v. Wadsworth. 73 N. J. Eq. 448, 68 Atl. 71; Bas-com v. Cannon, 158 Pa. 225, 27 Atl. 968.

72. Doten v. Bartlett, 107 Me. 351, 32 L. R. A. (N. S.) 1075, 78 Atl. 456.

73. See Mead v. Anderson, 40 Kan. 203, 19 Pac. 708; Seeley v.

To grant or reserve such an easement, for instance, could not well be presumed in case there was an oral agreement that no right of way should exist.74 And so if land is conveyed with an explicit understanding that it is to be covered by a building, it could not well be contended that the grantor had a right of way of necessity through the building.

If, in a conveyance of land, a way is provided, it has been said, which gives access for ordinary purposes to the lot granted, no way of necessity will arise, although that way is not sufficient for all purposes,75 or, to express it more in accordance with principle, the existence of a way for ordinary purposes is sufficient to exclude any presumption of an intention that a way for all purposes shall exist.

An easement of necessity, like any other easement, cannot be imposed upon land not owned by the grantor,76 or in which he has an undivided interest only.77

Since a way of necessity exists by reason of a construction of the conveyance, based on the necessity of such way to the user of the land conveyed or retained, it is the necessity which exists at the time of the conveyance which determines the existence of the way, and not a necessity which may subsequently arise by reason of a change of circumstances.77a A conveyance is to be

Bishop, 19 Conn. 128.

74. Lebus v. Boston, 21 Ky. Law Rep. 411, 47 L. R. A. 79, 92 Am. St. Rep. 333, 51 S. W. 607. See Ewert v. Burtis (N. J. Ch.) 12 Atl. 893.

75. Haskell v. Wright, 23 N. J. Eq. 389.

76. Consequently there is no grant of a right of way by necessity when the land granted and that retained meet only at a mathematical point, that is, when merely a corner of one touches a corner of the other. Greenwood v. West, 171 Ala. 463, 54 So. 694.

77. Woodworth v. Raymond, 51 Conn. 70; Marshall v. Trumbull, 28 Conn. 183. But if the various owners of the land make deeds for the purpose of partition one who acquires a tract not otherwise accessible would have a way of necessity. Palmer v. Palmer, 150 N. Y. 139, 55 Am. St. Rep. 653, 44 N. E. 966.

77a. Kentucky Distilleries & Warehouse Co. v. Warwick Co., 166 Ky. 651, 179 S. W. 611; Corconstrued with reference to the circumstances existing at the time of its execution and not those subsequently arising1.

The grant of a way of necessity is implied in order to enable one to utilize his own land and not to enable him to utilize other land, and consequently one has no such right over another's land merely because of his inability otherwise to reach public land where he desires to pasture his cattle.77b vient tenement except as against a purchaser for value without notice.80

While the implication of a way of necessity is almost invariably for the purpose of access to the land from the highway, occasionally a way of necessity has been recognized, apparently without reference to the question of its necessity for the purpose of access from the highway, but merely to give access to other land belonging to the same person, when he has conveyed an intervening strip for a railroad right of way.78

Upon a subsequent transfer of the dominant tenement a way of necessity appurtenant thereto, like any other easement, passes without any mention thereof.79 And the burden passes upon the conveyance of the sernell Andrews Smelting Co. v. Boston & P. R. Co., Corp., 202" Mass. 585, 89 N. E. 118. Post, this section, notes 97-99.

77b. Mcllquhain v. Anthony Wilkinson Live Stock Co., 18 Wyo. 53, 104 Pac. 20.

78. Cleveland, etc., R. Co. v. Smith, 177 Ind. 524, 97 N. E. 164; Pittsburgh, C. C. & St. L. Rwy. Co. v. Kearns, 58 Ind. App. 694, 108 N. E. 873; Vandalia R. Co. v. Furnas, 182 Ind. 306, 106 N. E. 401; New York, etc., R. Co. v. Railroad Commissioners, 162 Mass. 81, 38 N. E.27. In one case the owner of land who had conveyed a strip of land to a railroad company for a right of way was, upon the subsequent discovery of natural gas, regarded as entitled to a way by necessity thereover for a pipe line to conduct gas to his dwelling. Uhl v. Ohio River R. Co., 47 W. Va. 59, 34 S. E. 934.

79. Taylor v. Warnaky, 55 Cal. 350; Conley v. Fairchild, 142 Ky. 271, 134 S. W. 142; Bean v. Bean, 163 Mich. 379, 128 N. W. 413; Pleas v. Thomas, 75 Miss. 495, 22 So. 820; Wooldridge v. Coughlin, 46 W. Va. 345, 33 S. E. 283.