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 .
179. Compare Whyte v. Builders' League of New York, 164 N. Y. 429, 58 N. E. 517. As in the case of conveyances made by several cotenants for purposes of partition. O'daniel v. Baxter, 112 Ky. 334, 65 S. W. 805; Robinson v. Hillman, 36 App. Cas. (D. C.) 241; Johnson v. Gould, 60 W. Va. 84, 53 S. E. 798; Clark v. De-baugh, 67 Md. 430, 10 Atl. 241.
30. Jones v. Sanders, 138 Cal. 405; Cheda v. Bodkin, 173 Cal. 7, 158 Pac. 1025; Stephens v. Boyd, 157 Iowa, 570, 138 N. W. 389; Gorton Pew Fisheries Co. v. Tolman, 210 Mass. 402, 38 L R. A. (N. S.) 882, 97 N. E. 54; Muse v. Gish, 114 Va. 90, 75 S. E. 764; Pearson v. Spencer, 3 B. & S. 761; Phillips v. Low, L. R (1892) 1 Ch. 47; Schwann v. Cotton (1916) 2 Ch. 120.
31. See Snow v. Pulitzer 142 of the quasi dominant tenement may have a similar operation in this regard, the purchaser at a foreclosure sale thereof thus acquiring an easement corresponding to the quasi easement existing at the time of the mortgage.32 And the same doctrine has been applied in favor of one acquiring title to the quasi dominant tenement by a judicial sale,33 or a sale under execution,34 and a conveyance in accordance therewith, and also in favor of one acquiring title from commissioners or other officials appointed to make partition.35
- Ownership of servient tenement. Since a person cannot create an easement in another's land, a
N. Y. 263, 36 N. E. 1059; Thropp v. Field, 26 N. J. Eq. (11 C. E. Green) 82; Miller v. Fitzgerald Dry Goods Co., 62 Neb. 270, S6 N. W. 1078; Comm. v. Burford, 225 Pa. 52, 73 Atl. 1064; and other citations in 1 Tiffany, Landlord & Ten. Sec. 128.
32. Pendola v. Ramm, 138 Cal. 517, 71 Pac. 624; John Hancock Mut. Life Ins. Co. v. Patterson, 103 Ind. 582, 53 Am. Rep. 550, 2 N. E. 188; Carrig v. Mechanics Bank, 136 Iowa, 261, 111 N. W. 329; Havens v. Klein, 51 How. Pr. (N. Y.) 82; Pennsylvania R. Co. v. Jones, 50 Pa. St. 417.
In Harlow v. Whiteher, 136 Mass. 553, it was held that the fact that the mortgagee of land released a part thereof from the mortgage did not impose an easement on the other part, as against the mortgagee, corresponding to a user then male by the mortgagor of the other part for the benefit of the part released.
In Cannon v. Boyd, 73 Pa. St. 179, it was held, apparently, lh.it an easement passed to a purchaser at a sale under the mortgage although the quasi easement did not exist until after the making of the mortgage.
33. Zell v. Universalist Society, 119 Pa. St. 390, 4 Am. St. Rep. 654, 13 Atl. 447; Manbeck v. Jones, 190 Pa. St. 171, 42 Atl. 536.
34. Kieffer v. Imhoff, 26 Pa. St. 438; Building Association v. Getty, 11 Phila. 305.
35. Kilgour v. Ascham, 5 Har. & J. (Md.) 82; Muir v. Cox, 110 Ky. 560, 62 S. W. 73; Ellis v. Bassett, 128 Ind. 118, 25 Am. St. Rep. 421, 27 N. E. 344; Brakely v. Sharp, 9 N. J. Eq. 9, 10 Id. 206; Goodall v. Godfrey, 53 Vt. 219, 38 Am. Rep. 671; Burweil v. Hobson, 12 Gratt. (Va.) 322, 65 Am. Dec. 247; Powell v. Riley, 15 Lea (Tenn.) 153; Gentry v. Piercy, 175 Ky. 174, 193 S. W. 1017.
It has been applied in connection with the assignment of dower. Morrison v. King, 62 II!. 30. Compare Smith v. Smith, 62 N. H. 652.
Conveyance of land for the benefit of which other land, not belonging to the grantor, is used without right or merely under a license, does not have the effect of vesting in the grantee an easement corresponding to such prior use.36 There are however decisions to the effect that if, in such case, the grantor subsequently acquires the other land, such an easement will then arise in favor of the grantee on the principle of estoppel.37 The difficulty with this view would seem to be that there is nothing on which to base an estoppel. The original conveyance did not in terms purport to create an easement in favor of the grantee, and the user of another's land at the time does not, it seems, as does the user of his own land, seem a sufficient reason for construing it, as against the grantor, as an attempted conveyance of the land with an easement appurtenant thereto in such other's land.38
Since one who has an undivided interest in particular land cannot burden such land with an easement,39 there can be no implication of a grant as corresponding to a preexisting quasi easement if there is an outstanding undivided interest in the property subjected to the user.40
36. Trump v. Mcdonnell, 120 Ala. 200, 24 So. 353; Green v. Collins, 86 N. Y. 246.
It has been decided that the fact that the owner of the land so used for the benefit of another's land joins in a conveyance of the latter, being the husband of the owner thereof, does not impose an easement on his land. Farley v. Howard, 60 N. Y. App. Div. 193, 172 N. Y. Supp. 28.
37. Swedish-american Nat. Bank of Minneapolis v. Connecticut Mut. Life Ins. Co., 83 Minn. 377, 86 N. W. 420; Mcelroy v. Mcleay, 71 Vt. 396, 45 Atl. 898;
Latta v. Catawba Elec. Co., 146 N. C. 285, 59 S. E. 1028; Jarnigan v. Mairs, 1 Humph. (Tenn.) 473.
38. See Spencer v. Kilmer, 151 N. Y. 390, 45 N. E. 865.
39. Ante, Sec. 361, note 35.
40. Farley v. Howard, 60 X. Y. App. Div. 173, 70 N. Y. Supp. 51, 172 X. Y. 628, 65 X. E. 111C; Palmer v. Palmer, 150 X. Y. 139, 55 Am. St. Rep. 653, 44 X. E. 966. But see Mcelroy v. Mcleay, 71 Vt. 396, 45 Atl. 898, to the effect that in such case the grantee would have a right to call for partition.
- Conveyance with "appurtenances" The decisions are ordinarily to the effect that the fact that a conveyance of the quasi dominant tenement is expressed to be "with the appurtenances" or with certain rights "appertaining- and belonging" or that similar general terms are used, does not in itself operate to create an easement in the grantee equivalent to the pre-existing quasi easement.41 According to the English cases, however, a conveyance of land with the easements or rights "used and enjoyed therewith" will create in favor of the grantee an easement corresponding to a quasi easement previously existing in favor of the land conveyed.42