By the law of England, an "exception" in a conveyance merely withdraws from the operation of the conveyance a part of the thing conveyed as a whole, and a "reservation" merely provides for the rendition to the grantor of something, such as a. rent or service, which is regarded as issuing from the thing granted.53-57 An easement

49. Shaw v. Hitchcock, 119 Mass. 254; Fox v. Mission Free School, 120 Mo. 349, 25 S. W. 172.

50. Kingsland v. Tucker, 115 N. Y. 574, 22 N. E. 268; Sheldon Bank v. Royce, 84 Iowa, 288, 50 N. W. 986.

That the builder of the wall failed to extend it over a small portion of the division line as he agreed to do was held not to 'prevent recovery upon the other's covenant. Keith v. Ridge, 146 Mo. 90, 47 S. W. 904.

The covenant to pay one-half of the cost of the wall was held not to include one half the cost of additions made by a purchaser from the builder, on his own land, for the purpose of strengthening the wall for his own purposes. Walker v. Stetson, 162 Mass. 86, 44 Am. St. Rep. 350, 38 N. E. Is.

51. Sherley v. Burns, 22 Ky. L. Rep. 788, 58 S. W. 69.

52. Rawson v Bell, 46 Ga. 19; Nalle v. Paggi, 81 Tex. 201, 13 L. R. A. 50, 16 S. W. 932. Compare Hurford v. Smith, 24 Okla. 448, 103 Pac. 851. And cases cited Post, Sec. 393(b), note 74.

53-57. See post, Sec. 436.

In the land conveyed is regarded as neither a part of the land nor as issuing therefrom, and consequently, in that country, if, upon the conveyance of land, there is in terms a reservation or exception, in favor of the grantor, of an easement in the land, these words are construed as in effect a re-grant of the easement by the grantee of the land to the grantor, which can take effect only if the instrument is executed by such grantee.58 In this country, however, the view of the common law as to the restricted functions of an exception and a reservation is not usually adopted,59 and it is held that an easement in the land conveyed may be created by a reservation,60 and in some states even by an exception,61 and consequently, the fact that the instrument is not executed by the grantee of the land as well as by the grantor is immaterial. Occasionally it has been decided that an easement may properly be created by a reservation but not by an exception,62 and, having

58. Durham & S. Ry. Co. v. Walker, 2 Q. B. 940; Wickham v. Hawker, 7 Mees. & W. 63; Corporation of London v. Riggs, 13 Ch. Div. 798.

59. See post, Sec. 436.

60. Chappell v. New York, N. H. & H. R. Co., 62 Conn. 195, 17 L. R. A. 420, 24 Atl. 997; Kuecken v. Voltz, 110 111. 264; Morrison v. Chicago & N. W. Ry. Co., 117 Iowa, 587, 91 X. W. 793; Wendell v. Heim, 87 Kan. 136, 123 Pac. 869; Inhabitants of Winthrop v. Fairbanks, 41 .Me. 307; Damron v. Justice, 162 Ky. 101, 172 S. W. 120; Kent v. Waite, 10 Pick. (Mass.) 138; Bowen v. Conner, 6 Cush. (Mass.) 132; Claflin v. Boston & A. R. Co., 157 Mass. 489, 20 L. R. A. 638, 32 N. E. 659; Haggerty v. Lee, 54 N. J. Law

580, 50 N. J. Eq. 464, 20 L. R. A. 631, 25 Atl. 319; Borst v. Empie, 1 Seld. N. Y. 33; Rose v. Bunn, 21 N. Y. 275; Grafton v. Moir, 130 N. Y. 465, 27 Am. St. Rep. 533, 29 N. E. 974; Richardson v. Clements, 89 Pa. St. 503, 33 Am. Rep. 784; Kister v. Reeser, 98 Pa. St. 1, 42 Am. Rep. 608; Fischer v. Laack, 76 Wis. 313, 45 N. W. 104.

61. Inhabitants of Winthrop v. Fairbanks, 41 Me. 307; Ring v. Walker, 87 Me. 550, 33 Atl. 174; Claflin v. Boston & A. R. Co., 157 Mass. 489, 20 L. R. A. 638, 32 N. E. 659; Bridger v. Pier3on, 45 N. Y. 601; Lcavitt v. Towle, 8 X. H. 96.

62. City Club of Auburn v. Mc-geer, 198 N. Y. 160, 91 N. E. 539, 92 N. E. 105; Gill v. Fletcher. 74 Ohio St. 295, 113 Am. St Rep. 962, 78 N. E. 433; Kister v. Reeser,

1268 Seal Property. [Sec. 362 regard to the nature of a reservation and of an exception at common law, such a view appears to be a reasonable one. The assumption that an easement may be created by exception as well as by reservation has resulted in much confusion in particular cases.04

In some states it is considered that words of inheritance must be used in the reservation of an easement in order that the grantor may acquire an easement to endure longer than his own life,65 In other states such words are regarded as unnecessary by reason of the general statutory provisions dispensing with the necessity of such words in order to create an estate in fee simple.66 In a few states the use of such words has been regarded as unnecessary on the theory that, the reservation being evidently intended to be for the benefit of neighboring land retained by the grantor, his easement is to be regarded as unlimited in point of duration.67 This latter view harmonizes with

98 Pa. 1; Riefler & Sons v. Wayne Storage Water Power Co., 232 Pa. 282, 81 Atl. 300.

64. Post, Sec. 436.

65. Koelle v. Knecht, 99 111. 396; Dawson v. Western Md. R. Co., 107 Md. 70, 14 L. R. A. (N. S.) 809, 126 Am. St. Rep. 337, 15 Ann. Cas. 678, 68 Atl. 301; Bean v. French, 140 Mass. 229; Childs v. Boston & M. R. R., 213 Mass. 91.

99 N. E. 957; Hornbeck v. West-brook, 9 Johns. (N. Y.) 73; Kister v. Rieser, 98 Pa. 1. And so it has been said that the word "heirs ' is necessary in the case of a reservation of oil and gas, but not in the case of an exception of oil and gas. Mandle v. Gharing, 256 Pa. 121, 100 Atl. 535.

66. Webb v. Jones, 163 Ala. 637, 50 So. 887; Presbyterian Church of Osceola v. Harken, 177

Iowa, 195, 158 N. W. 692; Bein-lem v. Johns. 102 Ky. 570, 44 S W. 128; Ruff in v. Seaboard Air Line Rwy., 151 N. Car. 330, 66 S. E. 317; Ruhnke v. Aubert, 58 Ore. 6, 113 Pac. 38; Forde v. Libby, 22 Wyo. 464, 143 Pac. 1190. 67. Webb v. Jones, 163 Ala. 637, 50 So. 887 (dictum); Chap-pell v. N. Y., N. H. & H. R. Co., 62 Conn. 195, 17 L. R. A. 420, 24 Atl. 997; Teachout v. Capital Lodge I. O. O. F., 128 Iowa, 380, 104 X. W. 440; Ring v. Walker, 87 Me. 550, 33 Atl. 174; Engel v. Ayer, 85 Me. 448, 27 Atl. 352; Lathrop v. Eisner, 93 Mich. 599, 53 N. W. 791; Smith v. Furbish, 68 N. H. 123, 47 L. R. A. 226. 44 Atl. 398. But as to Maine see Winthrop v. Fairbanks, 41 Me. 307; Dana v. Smith, 114 Me. 262, 95 At. 1034.