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 .
98a. Doyle v. Lord, 64 N. Y. 432, 21 Am. Rep. 629. The opinion is apparently to the effect that if "appurtenances" had not been mentioned, no easement would have passed, but it also distinguishes the cases deciding that no easement of light is created by implication on the ground that in this particular case the yard had been appropriated to the use of the building and was a part of the same lot.
2 R, P, - 6 rooms and cover the lessee's signs.98b A like view has been asserted as to the obstruction of the light passing to that part of the building which is leased, by reason of an alteration of the building itself, it having been decided that the lessor, or one standing in his place, cannot alter the building so as to prevent light and air from passing through a "well" as it did at the time of the lease.98c And it has likewise been decided that the tenant of an upper floor cannot obstruct the passage of light to a lower floor through a grating98d or skylight.98e In the various cases referred to, the light in question was presumably necessary for any proper enjoyment of the premises, and they may perhaps be regarded as coming within the exception to the general rule, sometimes asserted,98f that a grant of a right to light will be implied so far as it is absolutely necessary.98g
- User must be apparent. That an easement may thus be created because corresponding to a preexisting quasi easement, the quasi easement, that is, the user of one tenement for the benefit of the other by their common owner, must, it is said, have been apparent,9811 and it was apparent, it has been stated, if its
98b. Brande v. Grace, 154 Mass. 210, 31 N. E. 633.
98c. Case v. Minot, 158 Mass. 577, 22 L. R. A. 536, 33 N. E. 700.
98d. Spies v. Damm, 54 How. Pr. (N. Y.) 293.
98e. O'neill v. Breese. 3 Misc. 219, 23 N. Y. Supp. 526. See Morgan v. Smith. 5 Hun (N. Y.) 220.
9Sf. Ante, Sec. this section, note 97.
98g. In Darnell v. Columbus Show Case Co., 129 Ga. 62, 58 S. E. 631, 13 L. R. A. N. S. 333, it was held that the lessee had an easement in such light and air as was "essential to the beneficial enjoyment of the leased tenement." which he could assert against one subsequently taking a lease of adjoining land from the same lessor. And in Stevens v. Salomon, 39 Misc. 159, 79 N. Y. Supp. 136, that the lessor could not cut off light "essential to the beneficial use."
98h. Whiting v. Gaylord, 66 Conn. 337, 50 Am. St. Rep. 87, 34 Atl. 85; Hyde Park Thompson Houston Light Co. v. Brown, 172 111. 329, 50 N. E. 327; Powers v. Heffernan, 233 111. 597, 84 N. E.
Existence was indicated by signs which must necessarily have been seen, or which might be seen or known on a careful inspection by a person ordinarily conversant with the subject.99 Accordingly, the question whether the user of land for a drain or aqueduct which is under ground or covered by buildings is apparent for the purpose of the rule depends, it seems, on whether there is any object in sight from the land purchased, as being thereon or near thereto, such as a pump or a sink, which indicate the presence of the aqueduct or drain.1
The user of land for purposes of passage is apparent, it seems, so as to give to the transferee of the quasi dominant tenement a right of way over the land retained, if there is a well marked road or path, either constructed for the purpose,2 or as a result of com stant or prolonged user.3 There are however ocasional judicial expressions to the effect that a way is never to be regarded as apparent for this purpose.3a
661; Fetters v. Humphreys, 18 N. J. Eq. 260, 19 N. J. Eq. 471; Lamp-man v. Milks, 21 N. Y. 505; Butter-worth v. Crawford, 46 N. Y. 349, 7 Am. Rep. 352; Phillips v. Phillips, 48 Pa. St. 178, 86 Am. Dec. 577; Providence Tool Co. v. Corliss Steam Engine Co., 9 R. I. 564; Sanderlin v. Baxter, 76 Va 299, 44 Am. Rep. 165.
99. Gale, Easements (8th Ed.) 116; Pyer v. Carter, 1 Hurlst. & N. 916. See to this effect, Ingalls v. Plamondon, 75 111. 118; Taylor v. Wright, 76 N. J. Eq. 121, 79 Atl. 433; Butterworth v. Crawford, 46 N. Y. 349, 7 Am. Rep. 352; Rollo v. Nelson, 34 Utah, 116, 26 L. R. A. (N. S.) 315, 96 Pac. 263.
In Brown v. Dickey, 106 Me. 97, 75 Atl. 382, it is said that the easement must be "indicated by objects which are necessarily seen or would be ordinarly observable by persons familiar with the premises."
1. For cases in which a quasi easement involving the use of land for a drain or aqueduct was held to be apparent, see Pyer v. Carter, 1 Hurlst. & N. 916; Schwann v. Cotton (1916), 2 Ch. 120; Mcpherson v. Acker, Macarthur & M. (D. C.) 150, 48 Am. Rep. 749; Tooth v. Bryce, 50 N. J. Eq. 589, 25 Atl. 182; Larsen v. Peterson, 53 N. J. Eq. 88, 30 Atl. 1094; Miller v. Skaggs, 79 W. Va. 645, Ann. Cas. 1918D, 929, 91 S. E. 536. For cases in which it was held not to be apparent, see Robinson v. Hillman, 36 Dist. Col. App. 241; Carbrey v. Willis, 7 Allen (Mass.) 364, 83 Am. Dec. 688; Covell v. Bright, 157 Mich. 419, 122 N. W. 101; Butterworth v. Crawford, 46 N. Y. 349, 7 Am. Rep. 352; Scott v. Beutel, 23 Gratt. (Va.) 1.
2. Robinson v. Hillman, 36 Dist. Col. App. 241; Teachout v.
The requirement that the user of the land have been apparent is perhaps based on the consideration that if the user was not apparent, the one to whom the quasi dominant tenement is conveyed cannot be presumed to have had any knowledge thereof, or to have anticipated that he would enjoy a like right of user. But this consideration appears to be of uniform importance only on the assumption that every conveyance is a bilateral transaction, that, in other words, it is effective because representing an agreement between the parties. A conveyance is, no doubt, in the ordinary case, the result of a prior agreement, and the requirement of the "acceptance" of a conveyance, so frequently asserted in this country,3b involves the idea that the conveyance, to be effective, must also be agreed to by the grantee after its execution. Nevertheless a conveyance may well be made which is not the result of agreement, and which is valid in spite of the inability of the grantee to accept. Suppose a conveyance of the quasi dominant tenement is made by way of gift to a. child one year old. Why should the fact that the user of the quasi servient tenement is apparent or not apparent affect the question whether the conveyance creates an easement in favor of the infant? And the same difficulty suggests itself in connection with a devise of the quasi dominant tenement,4 in which case the devisee may be ordinarily supposed to be ignorant of the devise until after the testator's death. If the testator has habitually made use of one part of his land for the benefit of another, why should not a devise of this latter part be presumed to be intended to include the right of user to the same extent when the user is not apparent as when it is apparent? And even in the case of a conveyance of the quasi dominant tenement by way of sale, the fact that the user is not apparent might well be disregarded if the grantee knows otherwise of such user by the grantor.5