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 .
The effect of a conveyance of land in certain cases as creating an easement corresponding to a pre-existing quasi easement has been previously considered.53 As to the effect of a conveyance of land, not as creating an easement, but as conveying an easement already existing, it is well settled that such an easement will pass on a conveyance of the land to which it appertains, - that is, the dominant tenement, - even though there is no reference to the specific easement, or any statement that all the "appurtenances" or "privileges" belonging to the land shall pass therewith.54
The word "appurtenance" is properly confined to things of an incorporeal character, such as easements or profits a prendre, and a conveyance of land "with the appurtenances" will not pass land other than that described, on the theory that it is appurtenant thereto, or, as the rule is usually expressed, "land cannot be appurtenant to land."55 The word "apMerrimack River Locks, 5 Mete. (Mass.) 27; Esty v. Baker, 50 Me. 325, 79 Am. Dec. 616.
52. Black v. Skinner Mfg. Co., 53 Fla. 1090, 43 So. 919; Quade v. Pillard, 135 Iowa, 359, 112 N. W. 646; Pike v. Munroe, 36 Me. 309, 58 Am. Dec. 751; Hastings v. Hastings, 110 Mass. 280; Cole v. Mueller, 187 Mo. 638, 86 S. W. 193; Sanborn v. Clough, 40 N. H. 316; Waterman v. Andrews, 14 R. I. 589; Green Bay & M. Canal Co. v. Hewitt, 55 Wis. 96, 42 Am. Rep. 701, 12 N. W. 382.
53. Ante, Sec. 363(b).
54. Sheppard's Touchstone, 89; Co. Litt. 121b; Crosby v. Bradbury, 20 Me. 61; Shelby v. Chicago & E. I. R. Co., 143 111. 385, 32 N. E. 438; Lide v. Hadley, theory that they had, by reason of their destination, become legally a part of the land or as being intended to be included in the description of the land.59
36 Ala. 627, 76 Am. Dec. 338; Jackson v. Trullinger, 9 Or. 393; National Exchange Bank v. Cunningham, 46 Ohio St. 575; Win-slow v. King, 14 Gray (Mass.) 323; Bowling v. Burton, 101 N. C. 176, 2 L. R. A. 285, 7 S. E. 701; Cope v. Grant, 7 Pa. St. 488.
Occasionally, however, the courts speak as if it were by reason of the use of the word "appurtenances" that an appurtenant easement passes. Whittlesey v. Porter, 82 Conn. 95, 72 Atl. 593; Swartz v. Swartz, 4 Pa. 353.
55. Co. Litt. 121b; Harris v. Elliott, 10 Pet. (U. S.) 25, 9 L. Ed. 333; Humphreys v. Mc-kissock. 140 U. S. 304, 35 I.. Ed. 47::; Evans v. Welch, 29 Colo., purtenances" may, however, it appears, be shown not to have, in the particular case, its legal meaning, hut to he used in a different sense, such as "usually enjoyed with," and so to pass land other than that specifically described.56 And so, while the word "appurtenances" will not usually extend the scope of the conveyance so as to include things of a chattel character, which are not legally part of the land conveyed,57 but they may, it has been held, be shown to have been intended to be covered by the term.58 Occasionally materials placed on land for the purpose of subsequent incorporation in a structure thereon, a building or fence, for instance, have been regarded as passing on a conveyance in terms of the land, on the
355, 68 Pac. 776; St. Louis Bridge Co. v. Curtis, 103 111. 410; Warren v. Blake, 54 Me. 276, 89 Am. Dec. 748; Whitmore v. Brown, 100 Me. 410, 61 Atl. 985; Leonard v. White, 7 Mass. 8, 5 Am. Dec. 19; Oliver v. Dickinson, 100 Mass. 114; Wilson v. Beckwith, 117 Mo. 61, 22 S, W. 639; Woodhull v. Rosenthal, 61 N. Y. 382; Geneva v. Henson, 195 N. Y. 447, 88 N. E. 1104; Latta v. Catawha Electric Co., 146 N. C. 285, 59 S. E. 1028; Cole v. Haynes, 22 Vt. 588.
56. Hill v. Grange, 1 Plowd. 164; Whitney v. Olney, 3 Mason, 280, Fed. Cas. No. 17,595; Hearn v. Allen, Cro. Car. 57; Thomas v. Owen, 20 Q. B. Div. 225; Crozer v. White, 9 Cal. App. 612, 100 Pac. 130; Hill's Lessee v. West. 4 Yeates (Pa.) 142; Ammidown v. Granite Bank, 8 Allen (Mass.) 285. See Missouri Pac. R. Co. v. Maffitt, 94 Mo. 56, 6 S. W. 600.
In some cases the use of the word "appurtenances" in connection with the conveyance of a building has been referred to as extending the import of the conveyance, as where there was a conveyance of a house or mill "with appurtenances," In which cases the inclosure and small outbuildings were held to pass. Ammidown v. Ball, 8 Allen (Mass.) 293; State v. Burke, 66 Me. 127; Cunningham v. Webb. 69 Me. 92. Compare Frey v. Drahos, 6 Neb., 39 Am. Rep. 353. But in these cases the effect would, it seems, under the rule previously stated (see Sec. 441, note 48), have been the same if the conveyance had contained no reference to the "appurtenances." Likewise a water pipe leading to the property conveyed has been held to pass under that description. Mulrooney v. Obear, 171 Mo. 613, 71 S. W. 1019.
57. Ottumwa Woolen Mill Co. v. Hawley, 44 Iowa, 57, 24 Am. Rep. 719; Frey v. Drahos, 6 Neb. 1; Scheidt v. Belz, 4 111. App. 431.
58. Redlon v. Barker, 4 Kan.