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 .
The common law rule that the reservation of rent upon a lease by one having a fee simple estate, without the mention of heirs, gives the lessor an interest in the rent which passes upon his death to his heirs, as partaking of the character of the reversion to which it appertains.68
In so far as it may be considered that an easement may be created by an exception, it is generally agreed that words of inheritance are unnecessary, in order to give to the grantor of the land an interest in the easement to endure beyond his life.69
An easement in gross is ordinarily regarded, as above stated, as being purely personal to the person in favor of whom it is created,70 and consequently a reservation of such an easement would usually create an easement for the grantor's life only, in the absence at least of language indicative of a contrary intention.
That an easement cannot be created by reservation in favor of a person other than the grantor in the conveyance has been frequently asserted,71 but there are to be found cases which are not in accord with such a view.72 The important consideration in that regard would appear to be whether the language of reservation in the particular case in favor of a third
68. Co. Litt. 47a; 2 Piatt, Leases, 8S; Gilbert, Rents, 64; Jaques v. Gould, 4 Cush. (Mass.) 384.
In Smith's Ex'cr v. Jones, 86 Vt. 258, 84 Atl. 866. that the easement was appurtenant appears to l.ave been regarded as a reason for construing the language as an exception, in order that, although without words of inheritance, it might endure after the grantor's life.
69. Chappell v. New York, N.
H. & H. R. Co., 62 Conn. 195, 17 L. R. A. 420, 24 Atl. 997; Win-throp v. Fairbanks, 41 Me. 307; Mclntire v. Lauckner, 108 Me. 443, 81 Atl. 784; Foster v. Smith, 211 Mass. 411, 98 N. E. 693; Lipsky v. Heller, 199 Mass. 310, 85 N. E. 453; Smith's Ex'cr v. Jones, 86 Vt. 258, 84 Atl. 866; Ruff in v. Seaboard Air Line, 151 N. Car. 330, 66 S. E. 317.
70. Ante, Sec. 350, note 3.
71. Post, Sec. 436.
72. Post. Sec. 436.
Person can be construed as the grant of an easement to such person.
As words of covenant may operate as a grant of an easement,73 they may operate as a reservation, as when one accepts a conveyance of land to him, which contains an agreement on his part that the grantor of the land may use such land in a certain way, or that he, the grantee, shall allow it to be used in a certain way.74"81
Sec.363. "Implied" grant or reservation. - (a)
General considerations. Frequently, although there is no grant of an easement in express terms, an easement is regarded as arising in connection with a conveyance of land, either for the benefit of the land conveyed as against land retained by the grantor, or for the benefit of land retained by the grantor as against the land conveyed, the former being referred to as a case of the "implied grant" of an easement, and the latter being referred to as a case of the "implied reservation" of an easement.
This doctrine of implied grant and implied reservation finds its practical application in connection with the question whether, upon a severance of ownership of land, an easement is created corresponding to a preexisting "quasi easement,"82 and also in connection with the question of the existence of an "easement of nocessity. "83
- Theory of implied grant. In the case of an easement arising in favor of the grantee of land as corresponding to a preexisting quasi easement, as well as in the case of an easement of necessity, the easement is regarded as existing on the theory that the grantor and grantee of the land intend that it shall exist, and the courts merely declare in effect that the particular circumstances of the transaction raise a presumption of such an intention. Since the easement thus arises as the result of an intention imputed to the parties that it shall arise, it exists, properly speaking, by reason of an express rather than an implied grant. This being so, a question suggests itself as to how, in view of the Statute of Frauds, and the recognized necessity, at common law, of a grant under seal in order to create an easement, a grantee of land can be regarded as acquiring, as appurtenant to the land, an easement in other land, not previously existing, and not referred to in the conveyance. The explanation is, apparently, that the easement is to be regarded, for the purpose of the particular case, as included in the description of the land conveyed. Evidence is always admissible to aid in the interpretation of the language of a written instrument, and so evidence is admissible to show the surrounding circumstances to be such as to raise a presumption that the property conveyed was, not a mere piece of land, but a piece of land with a particular easement appurtenant thereto.84 The rules declared by the courts as to the creation of easements corresponding to preexisting quasi easements, and of easements of necessity, constitute in reality merely rules of construction for the purpose of determining the scope of the conveyance. And the grant of the easement is implied only in the sense that the easement passes by the conveyance although not expressly mentioned, just as an easement previously created passes upon a conveyance of the land to which it-is appurtenant without any express mention of the
73. Ante, Sec. 361, note 28.
74-81. Weller v. Brown, 160 Cal. 515, 117 Pac. 517; Hathaway v. Hathaway, 159 Mass. 584, 35 X. E. 85; Re Barkhausen. 142 Wis. 292, 124 N. W. 649, 125 X. W.
82. Post, this section, notes 85-50.
83. Post, this section, notes 51-3b.
84. As said by Justice Story, somewhat too sweepingly: "Whatever is actually enjoyed with the thing granted, as a beneficial privilege at the time of the grant. passes as parcel of it." Hazard v. Robinson, 3 Mason, 272.
Easement. It is immaterial, from a legal point of view, whether the easement passes because the instrument expressly says that it shall pass, or because the circumstances are such as to call for a construction of the language used as so saying. So in the case of the so called implied reservation of an easement upon a conveyance of land, the description of the land is, by reason of the surrounding circumstances, construed to refer, not to the land free from any easement, but to the land subject to an easement corresponding to the previous mode of utilizing the land or to the necessities of the case, and there is thus, properly speaking, an express reservation, in the sense that it is intended, or rather presumed to be intended, and the reservation is implied only in the sense that, instead of being explicitly stated, it is left to be inferred from the language used when construed with reference to the surrounding circumstances.