- Character of conveyance. A way of necessity may arise r«pon a conveyance of land although at the same time the grantor conveys away the balance of his land to another,81 and so it may arise upon a devise.82 It may also arise by force of a lease.83 It has been regarded as arising on a conveyance by a trustee,-4 and also by an executor.85

A way of necessity has been regarded as arising not only when the severance of the ownership of the two pieces of land occurs as a result of voluntary transfer, but also when it occurs as a result of legal proceedings,80 as when one piece is sold under a lien,87 or under execution,88 or is taken under condemnation proceedings.80 And likewise when the severance of the

80. Logan v. Stogsdale, 123 Ind. 372, 8 L. R. A. 58, 24 N. E. 135; Jay v. Michael, 92 Md. 198; Fairchild v. Stewart, 117 Iowa, 734, 89 N. W. 1075; Thomas v. Mccoy, 48 Ind. App. 403, 96 N. E. 14; Higbee Fishing Club v. Atlantic City Electric Co., 78 N. J. Eq. 434, 79 Atl. 326.

81. Palmer v. Palmer, 150 N. Y. 139, 55 Am. St. Rep. 653, 44 N. E. 966; Mitchell v. Seipel, 53 Ind. 251.

82. Mclntire v. Lauchner, 108 Me. 443, 81 Atl. 784; Conover v. Cade, 184 Ind. 604, 112 X. E. 7.

In Mancuso v. Riddlemoser, 117 Md. 53, 82 Atl. 1051, it was held that when the control of a door in the cellar of a building was "strictly necessary" for purposes of ventilation and the management of the heating apparatus, the right to control it would be implied in favor of the owner of the building as against one to whom he had leased a part of the building including the cellar S3. Tutwiler Coal, Coke & Iron Co. v. Tuvin, 158 Ala. 657. 48 So. 79; Powers v. Harlow, 53 Mich. 507, 51 Am. Rep. 154, 19 N. W. 257.

84. Howton v. Frearson, 8 Term Rep. 50.

85. Collins v. Prentice, 15 Conn. 39, 38 Am. Dec. 61.

86. See Bean v. Bean, 163 Mich. 379, 128 N. W. 413.

87. San Joaquin Valley Bank v. Dodge, 125 Cal. 77, 57 Pac. 687; Proudfoot v. Saffle, 62 W. Va. 51, 12 L. R. A. (N. S.) 482, 57 S. E. 256.

88. Damron v. Damron, L19 Ky. 806, 84 S. W. 747.

89. Cleveland, C, C. & St. L. R. Co. v. Smith, 177 Ind. 524, 97 N. E. 164.

Ownership occurs as a result of partition proceedings.90 It has also been regarded as arising when land is set off by appraisement under an execution, in such a way that either the land retained by the debtor or that set off is otherwise inaccessible.91 In all these cases in which a way of necessity is regarded as arising in favor of one who acquires land by legal proceedings, the "implied grant" of the way is, it seems, properly to be regarded as based on a construction of the language of the official conveyance, or of the decree, as intended to include the right of way.

- Degree of necessity. A way of necessity will not ordinarily be recognized if there is another mode of access to the land, though much less convenient, that is, as has been sometimes said, a way of convenience is not a way of necessity.02 And so the fact that the

90. Blum v. Weston, 102 Cal. 362, 36 Pac. 778, 41 Am. St. Rep. 188; Mesmer v. Uharriet, 174 Cal. 110, 162 Pac. 104; Ritchey v. Welsh, 149 Ind. 214, 48 N. E. 1031, 40 L. R. A. 105; Goodal v. Godfrey, 53 Vt. 219, 38 Am. Rep. 671.

91. Pernam v. Wead, 2 Mass. 203, 3 Am. Dec. 43; Taylor v. Townsend, 8 Mass. 411, 5 Am. Dec. 107; Russell v. Jackson, 2 Pick. (Mass.) 574; Schmidt v. Quinn, 136 Mass. 575.

92. Dodd v. Burchell, 1 Hurl. & C. 113; Corea v. Higuera, 153 Cal. 451, 17 L. R. A. (N. S.) 1019, 95 Pac. 882; Sterricker v. Mc-bride, 157 111. 70; Ward v. Robertson, 77 Iowa, 159, 41 N. W. 603; Hall v. Mcleod, 2 Mete. (Ky.) 98, 74 Am. Dec. 400; Whitehouse v. Cummings, 83 Me. 91, 23 Am. St. Rep. 756, 21 Atl. 743; Mitchell v. Seipel, 53 Md. 251; Nichols v.

Luce, 24 Pick. (Mass.) 102; Dab-ney v. Child, 95 Miss. 585, 48 So. 897; Field v. Mark, 125 Mo. 502. 28 S. W. 1004; Roper Lumber Co. v. Richmond Cedar Works, 158 N. C. 161, 73 S. E. 902; Meredith v. Frank, 56 Ohio St. 479, 47 N. E. 656; Lankin v. Terwilliger, 22 Ore. 97, 29 Pac. 268; Valley Falls Co. v. Dolan, 9 R. I. 489; Bailey v. Gray, 53 S. C. 503, 31 S. E. 354; Alley v. Carleton, 29 Tex. 74; Dee v. King, 73 Vt. 375, 50 Atl. 1109; Malsch v. Waggoner, 62 Wash. 470, 114 Pac. 446 (setn-He); Mcllquahain v. Anthony Wilkinson Live Stock Co., Is Wyo. 53, 104 Pac. 20.

As to whether the use of a staircase on adjoining property could, under the circumstances, be regarded as necessary and not merely convenient, see Galloway v. Bonesteel, 65 Wis. 79, 56 Am. Rep. 616, 26 N. W. 262; Stillwell existing way is steep or narrow,93 or can he made available only by the expenditure of money or labor,94 has been held not to justify a finding of a way of necessity. On the other hand there are decisions to the effect that if the cost of the construction of a road over one's own land, as a means of access to any particular portion thereof, would involve very great expense, out of proportion to the value of the land itself, there is such a necessity for a way over another's land as to justify the recognition of a way of necessity.95 Whether the fact that the land is otherwise accessible only by water is a justification for assuming the existence of a way of necessity across the land is a matter as to which the cases are not entirely clear.96 v. Foster, 80 Me. 333, 14 Atl. 731; Ouimby v. Shaw, 71 N. H. 160, 51 Atl. 656.

93. Kripp v Curtis, 71 Cal. 62, 11 Pac. 879; Gaines v. Lunsford, 120 Ga. 370, 47 S. E. 967, 102 Am. St. Rep. 109; Dudgeon v. Bron-son, 159 Ind. 562, 95 Am. St. Rep. 315; Turnbull v. Rivers, 3 Mc-cord (S. C.) 131, 15 Am. Dec. «22; United States v. Rindge, 208 Fed. 611.

94. Carey v. Rae, 58 Cal. 159; Gaines v. Lunsford, 120 Ga. 370, 102 Am. St. Rep. 109, 47 S. E. 967; Nichols v. Luce, 24 Pick. (Mass.) 102, 35 Am. Dec. 302; Dee v. King, 73 Vt. 375, 50 Atl. 1109; Shaver v. Edgell, 48 W. Va. 502, 37 S. E. 664; Fitchett v. Mellow, 29 Ont. Rep. 6. See Mes-mer v. Uharriet, 174 Cal. 110, 162 Pac. 104.