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 .
- (b) Of easement corresponding to pre-existent quasi easement. One cannot have an easement over one's own land, but one may make use of one part of his land for the benefit of another part, just as, if they were separately owned, the owner of the latter might make use of the former by reason of the existence of an easement in his favor. When one thus utilizes part of his land for the benefit of another part, it is frequently said that a quasi easement exists, the part of the land which is benefitted being referred to as the "quasi dominant tenement," and the part which is utilized for the benefit of the other part being referred to as the "quasi servient tenement." The so called quasi easement is evidently not a legal relation in any sense, but the expression is a convenient one to describe the particular mode in which the owner utilizes one part of the land for the benefit of the other, as bearing on the question now to be discussed, whether, when the two parts subsequently become the property of different persons, an actual easement is to be regarded as existing, which corresponds to the use which was previously made of the land by the owner of both parts. The latter question is frequently, perhaps more usually, the subject of discussion and adjudication without the employment of the expression quasi easement, which is here employed merely because, in the view of the writer, the explanation and discussion of the matter will be thereby somewhat facilitated.
If the owner of land, one part of which is subject to a quasi easement in favor of another part, conveys the quasi dominant tenement, an easement corresponding to such quasi easement is ordinarily regarded as thereby vested in the grantee of the land, provided, it is said, the quasi easement is of an apparent continuous and necessary character.
It is perhaps unfortunate that the courts, in determining whether, in a particular case, an easement corresponding to a preexisting quasi easement has passed with the land, have usually failed to recognize that the question is primarily one of construction, and have instead undertaken to lay down absolute rules as to what characteristics the particular easement or quasi easement must have, implying that, if it has these characteristics, the easement will pass as a matter of law. The characteristics ordinarily referred to in this connection are, as above indicated, that the user be apparent, that it be continous, and that it be necessary, each of which will be hereafter discussed in turn. But it does not seem that the presence or absence of any or all of these characteristies should be conclusive. Taking the case of a quasi easement which is not apparent, which is not continuous and which is not necessary, nevertheless a conveyance in terms of the quasi dominant tenement should, it is conceived, be construed as a conveyance of the lands with an easement appurtenant thereto corresponding to the pre existing quasi ease ment, if this accords with the probable intention of the parties. On the other hand, even though the quasi easement has all the three characteristics named, an easement corresponding thereto evidently does not pass with the land if the language of the conveyance shows clearly an intention otherwise,85 or if the circumstances are such as to exclude a construction of the language of the conveyance as inclusive of the easement. So it has been decided that an easement does not pass when the grantee of the land knows that the grantor has no intention that it shall pass.86
- Applications of doctrine. The doctrine of an implied grant of an easement corresponding to a preexisting quasi easement has been applied in various connections, of which the following may be mentioned. It has been held that where the owner of two pieces of land maintains on one of them a drain for the Benefit of the other, a person to whom he conveys the latter is entitled to an easement of maintaining the drain as it was before maintained.87 And so if one lays pipes for the supply of water from one part of his land to another part, a grantee of the part so benefitted may have the privilege of obtaining a water supply in the same manner as it was previously obtained by his grantor.88 The doctrine has also been applied in connection with the question of the right to utilize water power,89 to flood land,90 to demand support for a building from another building,91 or from a wall,92 to
85. Webber v. Vogel, 159 Pa. 235, 28 Atl. 226; Hardy v. Mc-cullough, 23 Gratt. (Va.) 251; Bloom v. Koch, 63 N. J. Eq. 10,
50 Atl. 621 (dictum) ; Greer v. Van Meter, 54 N. J. Eq. 270, 33 Atl. 798 (dictum); United States v. Appleton, 1 Sumn. 492.
86. Birmingham, Dudley & District Banking Co. v. Ross, L. R. 38 Ch. Div. 295; Mcpherson v. Acker, Mcarth. & M. 150, 48 Am. Rep. 749; Curtis v. Ayrault, 47 N. Y. 473; Lebus v. Boston, 21 Ky. Law Rep. 411, 47 L. R. A. 79,
51 S. W. 609; Kemp v. Pennsylvania R. R., 156 Pa. 430, 26 Atl. 1074.
In Assets Investment Co. v. Hollingshead, C. C. A. 200 Fed. 551, it was decided that upon a sale of property under order of court there was no implication of the grant of an easement if the evident intention of the court was otherwise.
87. Thayer v. Payne, 2 Cush. Mass. 327; Lampman v. Milks, 21 N. Y. 505; Denton v. Leddell, 23 N. J. Eq. 64; Shaw v. Etheridge. 3 Jones L. (48 N. Cftr.) 300; Sharpe v. Scheible, 162 Pa. 341, 42 Am. St. Rep. 838, 29 Atl. 736; Elliott v. Rhett, 5 Rich. L. (S. C.) 405-, 57 Am. Dec. 750; Sarnderlin v. Baxter, 76 Va. 299; Mcelroy v. Mcleay, 71 Vt. 396, 45 Atl. 898. But see Allers v. Bach, 130 Md. 499, 100 Atl. 781, where the implied grant of an easement of drainage was negatived, apparently as not being necessary.
88. Nicholas v. Chamberlain, Cro. Jac. 121; Watts v. Kelson, L. R. 6 Ch. 166; Franciscioni v. Soledad Land & Water Co., 170 Cal. 221, 149 Pac. 161; Quinlan v. Noble, 75 Cal. 250, 17 Pac. 69; Adams v. Gordon, 265 111. 87, 106 X. E. 517; Johnson v. Knapp, 146 Mass. 70, 15 N. E. 134; Toothe v. Bryce, 50 N. J. Eq. 589, 25 Atl. is2;larsen v. Peterson, 53 N. J. Eq. 88, 30 Atl. 1094; Paine v. Chandler, 134 N. Y. 385. 19 L. R. A. 99, 32 X. E. 18; Spencer v. Kilmer, 151 N. Y. 390, 45 N. E. 865; Coolidge v Hager, 43 Vt. 9, 5 Am. Rep. 256.