22. Stevens v. Orr, 69 Me. 323.

It is impossible to deduce from the cases any general rule by which to determine the existence of this "necessity," so called, and such a rule is, perhaps, in the nature of things, impossible of formulation. That the necessity need not be absolute, in the sense that there can be no enjoyment whatsoever of the land without the exercise of the easement, is apparent from all the decisions.23 In a few states it has been said that the question of necessity is determined by the consideration whether a substitute for the easement can be procured by "reasonable" trouble and expense.24

23. See Mcpherson v. Acker, Macarthur & M. (D. C.) 150. 48 Am. Rep. 749; Cihak v. Klekr, 117 111. 643, 7 N. E. Ill; John Hancock Mut. Life Ins. Co. v. Patterson, 103 Ind. 582, 53 Am. Rep. 550, 2 N. E. 188; Dolliff v. Boston & M. R. Co., 68 Me. 173; Gorton Pew Fisheries Co. v. Tolman, 210 Mass. 412, 97 N. E. 54; Bonelli v Blakemore, 66 Miss. 136, 14 Am. St. Rep. 550, 5 So. 22S; Kelly v. Duncomb, 43 N. J. Eq. 62, 10 Atl. 276; Lampman v. Milks, 21 N. Y. 505; 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; Phillips v. Phillips, 48 Pa. St. 178, 86 Am. Dec. 577; Providence Tool Co. v. Corliss Steam Engine Co., 9 R. I. 564; Goodall v. Godfrey, 53 Vt. 219, 38 Am. Rep. 671.

It has been said, in two states, that the grant of an easement will be implied in cases of "strict necessity" only. Warren v. Blake, 54 Me. 276; Stillwell v. Foster, 80 Me. 333, 14 Atl. 731; Buss v. Dyer, 125 Mass. 287. And see Malsch v. Waggoner, 62 Wash. 470, 114 Pac. 446; Roe v. Walsh, 76 Wash. 148, 136 Pac. 1146, 135 Pac. 1031. But in view of other decisions in these states it is evident that it is not meant by this that the easement must be necessary for the purpose of any enjoyment whatsoever of the land. See cases previously cited in this note, and Stevens v. Orr, 69 Me. 233; Johnson v. Knapp, 146 Mass. 70, 15 N. E. 134; Case v. Minot, 158 Mass. 577, 22 L. R. A. 536, 33 N. E. 700. Occasionally it has been said to be sufficient that the easement be highly convenient and beneficial. See Adams v. Gordon, 265 111. 87, 106 N. E. 517.

24. Warren v. Blake, 54 Me. 276; Dolliff v. Boston & M. R. Co., 68 Me. 173; Johnson v. Jordan, 2 Mete. (Mass.) 234; Thayer v. Payne, 2 Cush. (Mass.) 327; Carbrey v. Willis, 7 Allen (Mass.) 364, 83 Am. Del. 688; Randall v. M'laughlin, 10 Allen (Mass.) 366; Smith v. Blanpied, 62 N. H. 652; Scott v. Beutel, 23 Gratt. (Va.) 1,

The fact that the easement is necessary for the purpose of a full enjoyment of the land conveyed is no doubt a consideration tending to show that the grantee of the land expects to have such an easement, corresponding to the preexisting quasi easement, as appurtenant to the land conveyed, and that the grantor expects him to have it. In other words the great desirability of the easement is a consideration, of greater or less weight, in favor of the assumption that the conveyance of the land is intended to be, not of the land alone, but of the land with the easement appurtenant thereto. Conversely, the fact that the easement is not highly desirable for the enjoyment of the land conveyed is a consideration adverse to the view that the grantor intends the grantee to acquire, or that the grantee expects to acquire, such easement. The courts tend in terms to base this requirement of necessity, so called, upon the impolicy of implying a grant in excess of the express words of the conveyance, and the desirability of making such implication only in case of necessity, but the meaning of this appears to be merely that the language of the conveyance is not to be extended by construction so as to include an easement not expressly referred to, and not before existing, unless this easement is so desirable for the full enjoyment of the land conveyed that a conveyance of the land without the easement is unlikely to have been within the contemplation of the parties.

- Actuality of user. The mere fact that the land retained is capable of user in a particular way for the benefit of the land conveyed is obviously in itself no reason for regarding an easement of that character as passing by the conveyance,20 and the fact that such

25. See the excellent opinion of Dodge, J., in Miller v. Hoeschler. 126 Wis. 263, 8 L. R. A. (N. S.) 327, 105 N. W. 790.

26. Haverhill Sav. Bank v. Griffen, 184 Mass. 419, 68 N. E. 839; Latta v. Catawba Elec. Co., 146 N. C. 285. 59 S. E. 1028; user has taken place in the past, during the common ownership of the two properties, is immaterial if it was abandoned before the conveyance was made.27 That there has been a temporary cessation of the user at that time is not however, it seems, conclusive against the construction of the conveyance as passing the land with the easement as appurtenant thereto.28

- Character of conveyance. An easement has been regarded as thus passing because corresponding to a preexisting quasi easement, not only when the grantor retains the land which is sought to be subjected to the easement, but also when he disposes of this latter land by a contemporaneous conveyance.29 And it has been regarded as so passing upon a devise of land as well as of a conveyance,30 and upon a lease as well as upon a conveyance in fee simple.31 Likewise a mortgage

Brown v. Dickey, 106 Me. 97, 75 Atl 382; Belser v. Moore, 73 Ark. 296, 84 S. W. 219.

27. Gorton Pew Fisheries Co. v. Tolman, 210 Mass. 412, 97 N. E. 54; Bauer & Co. v. Chamberlain, 159 Iowa, 12, 138 N. W. 903; Van Rossum v. Grand Rapids Erewing Co., 129 Mich. 530, 89 N. W. 370; Mchart v. Mcmullin. 30 Can. Sup. Ct. 245.

28. Elliott v. Rhett, 5 Rich. L. (S. C.) 405, 57 Am. Dec. 750; Simmons v. Cloonan, 81 N. Y. 557.

29. Allen v. Taylor, 16 Ch. D. 355; Phillips v. Low (1892), 1 Ch. 47; Henry v. Koch, 80 Ky. 391, 44 Am. Rep. 484; Stephens v. Boyd, 157 Iowa, 570, 138 N. W. 389; Larsen v. Peterson, 53 N. J. Eq. 88, 30 Atl. 1094; Baker v. Rice, 56 Ohio St. 463, 47 N. E. 653; Cannon v. Boyd, 73 Pa. St.