Duffus, 141 Iowa, 466, 119 N W. 983; Keokuk Electric Ry. & Power Co. v. Weisman, 146 Iowa, 679. 126 N. W. 60; Hankins v. Hen-hendricks, 247 111. 517, 93 N. E. 428; Scott v. Moore, 98 Va. 668. 71 Am. St. Rep. 749, 37 S. E. 342; Hammond v. Ryman, 120 Va. 131, 90, S. E. 613.

3. Stone v. Burkhead, 160 Ky. 47, 169 S. W. 489 (semble); Liquid Carbonic Co. v. Wallace, 219 Pa. 457, 68 Atl. 1021.

3a. Fetters v. Humphreys, 19

N. J. Eq. 471; Michelet v. Cole, 20 N. Mex. 357, 149 Pac. 310. In Duvall v. Ridout, 124 Md. 193. L. R. A. 1915C, 345, 92 Atl. 209. it is said that there is no implied grant of a way, though well defined, unless it is enclosed or improved, or is actually necessary. And Allers v. Beach. 130 Md. 499, 100 Atl. 781, is adverse to the "implied" grant of a right of way in any case, if not a way of necessity. 3b. Post, Sec. 463.

- User must be continuous. In order that an easement may thus be created as corresponding to a pre existing quasi easement, the previous user must also, it is ordinarily stated, have been continuous.0 In some cases the view is taken that the user is continuous if no further act of man is necessary to its continuous exercise,7 while in other cases the question is said to be whether there is a permanent adaptation of the two tenements to the exercise of the user.8 Giving the former signification to the expression, it is difficult to see any propriety in the requirement of. continuousness. Giving the latter signification thereto, the requirement appears to be, not that the user be continuous, but that there be such an adaption of the two tenements for the purpose of such user as to indicate an intention that the user shall be permanent or approximately permanent, and there are cases in which this view is expressed.9

4. Post, note 30.

5. The statement that the user must be apparent, like the statement that it must be continuous appears to have originated in Gale and Whatley on Easements, published in 1839, these authors adopting the expressions "apparent" and "continuous" from the French Civil Code. See Lord Blackburn's remarks in L. R. 6 App. Cas. at p. 821. There were quite a number of cases prior to the date named, and indeed subsequent thereto, in which the doctrine of the grant of an easement as corresponding to a pre-exisi-ing quasi easement was recognized, but in which there was no suggestion of any necessity that the prior user have been apparent or continuous. See cases referred to, Gale, Easements (8th

Ed.) 117 et seq. The requirement of the French Code in this respect appears to have been based upon certain of the customary laws, and upon the decisions of the courts, of old France. See the references in a suggestive note in 65 University of Penna. Law Rev. at p. 77. In Brlssaud, French Private Law (Continental Legal History Series) p. 424, it is said that in the old law the doctrine of implied grant based on previous usage, ordinarily referred to as "destination du pere de famille" seems to have applied only to visible servitudes, but that there is not a very clear distinction made between their being visible and being continuous.

6. Worthington v. Gimson, 2 El. & El. 618; Wheeldon v. Burrows, 12 Ch. Div. 31; Walker v.

Clifford, 128 Ala. 67, 86 Am. St. Rep. 74, 29 So. 588; Whiting v. Gaylord, 66 Conn. 337, 50 Am. St. Rep. 87, 34 Atl. 85; Powers v. Heffernan, 233 111. 597, 84 N. E. 661; Larsen v. Peterson, 53 N. J. Eq. 88, 30 Atl. 1094; Lampman Milks, 21 N. Y. 505; Longendyke v. Anderson, 101 N. Y. 625, 4 N. E. 625; Sanderlin v. Baxter, 76 Va. 299, 44 Am. Rep. 165.

7. Bonelli v. Blakemore, 66 Miss. 136, 14 Am. St. Rep. 550, 5 So. 228; Providence Tool Co. v. Corliss Steam Engine Co., 9 R. I. 564; Morgan v. Meuth, 60 Mich. 238, 27 N. W. 509. This is the meaning given to the expression by the French law. Code Napoleon Art. 688. See editorial note, 65 University Penna. Law Rev. 77.

8. Toothe v. Bryce, 50 N. J. Eq. 589, 25 Atl. 182; Larsen v. Peterson, 53 N. J. Eq. 88, 30 Atl. 1094; John Hancock Mut. Life Ins. Co. v. Patterson, 103 Ind. 582, 53 Am. Rep. 550, 2 N. E. 188; Paine v. Chandler, 134 N. Y. 385,

19 L R. A. 99, 32 N. E. 18; Spencer v. Kilmer, 151 N. Y. 390, 45 N. E. 865.

9. John Hancock Mut. Life Ins. Co. v. Patterson, 103 Ind. 582, 53 Am. Rep. 550, 2 N. E 188; Starrett v. Baudler, - Iowa. -, 165 N. W. 216; Cannon v. Dick, 170 N. C. 305, 87 S. E. 224; Baker v. Rice, 56 Ohio St. 463. 47 N. E. 653; German Savings & Loan Society v. Gordon, 54 Ore. 147, 26 L. R. A. (N. S.) 331, 102 Plae. 736; 'phillips v. Phillips, 48 Pa. St. 178, 86 Am. Dec. 577; Scott v. Moore. 98 Va. 668, 81 Am. St. Rep. 749, 37 S. E. 342 {semUe).

In occasional New Jersey decisions continuous and apparent appear to be regarded as convertible terms. Fetters v. Humphreys, 18 N. J. Eq. 260; Taylor v. Wright, 76 N. J. Eq. 121, 79 Atl. 433. And see as to the lack of distinction in this regard, in the old French law, ante, this section note 5, ad fin.

The maintenance of a drain or aqueduct has been regarded as involving a continuous user,1" while, on the other hand, the going on land to obtain water has been regarded as not continuous.11

Whether the user of land for purposes of passage is continuous within the meaning of this asserted requirement is a matter on which there has been considerable difference of opinion, and while some cases seem to regard is as necessarily discontinuous, because not constantly exercised,12 other cases regard it as continuous if there is a clearly-defined road over the servient tenement, evidently intended for the use of the dominant tenement.13

10. Larsen v. Peterson, 53 N. J Eq. 88, 30 Atl. 1094; Paine v. Chandler. 134 X. Y. 385, 19 L. R. A. 99, 32 N. E. 18; Sanderlin v. Baxter, 76 Va. 299; Hoffman v. Shoemaker, 69 W. Va. 233, 34 L. R. A. (X. S.) 632, 71 S. E. 198; Dodd v. Burchell, 1 Hurlst. & Colt 113; Schwann v. Cotton (1916), 2 Ch. 120.

11. Polden v. Bastard. L. R. 1 Q. B. 156; O'rorke v. Smith, 11 R. I. 259, 23 Am. Rep. 440. Contra. Eliason v. Grove, 85 Md. 215, 36 Atl. 844, in which case, however, there was a continuous adaptation of the premises, in the shape of a gate near the well.