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 .
32. See Stovall v. Cogging Granite Co., 116 Ga. 376, 42 S. E. 723; Goodwillie Co. v. Commonwealth Electric Co., 241 111. 42, 89 N. E. 272; Hagerty v. Lee, 54 X. J. L. 580, 20 L. R. A. 631, 25 Atl. 319; Karmuller v. Krotz, 18 Iowa, 352; Whitney v. Richardson, 59 Hun. (X. Y.) 601; Borst v. Empire, 5 X. Y. 33 (semble).
33. Ante, Sec. 21(a).
33a. As in Pelllssier v. Corker, such land, with a specification of the user which is expected to be made of the land,34 is obviously a question of construction of the language used. That the conveyance is in terms of land does not necessarily prevent a construction thereof as creating only an easement in the land.34a
One can obviously not create an easement upon land belonging to another, and for this reason one who has an undivided interest only in the land cannot create an easement therein.35 There are, however, occasional
103 Cal. 516, 37 Pac. 465; Cincinnati, I. St. L. & C. Ry. Co., v. Geisel, 119 Ind. 77, 21 N. E. 470; Nichols v. New England Furniture Co., 100 Mich. 230, 59 N. W. 155; Maxwell v. Mccall, 145 Iowa, 687, 124 N. W. 760; Samples v. Smythe, 32 Ky. L. Rep. 187, 105 S. W. 415; Callaway v. Forest Park Highlands Co., 113 Md. 1, 77 Atl. 141; Beasley v. Aberdeen & Rockfish R. Co., 145 N. Car. 272, 59 S. E. 60; Wason v. Pilz, 31 Ore. 9, 48 Pac. 701; Robinson v. Missisquoi R. Co., 59 Vt. 426, 10 Atl. 522; Reichenbach v. Washington Short Line Ry. Co., 10 Wash. 357, 38 Pac. 1126.
34. As in Weihe v. Lorenz, 254 111. 195, 98 N. E. 268; Low v. Streeter, 66 N. H. 36, 9 L. R. A. 271, 20 Atl. 247; Blauvelt v. Passaic Water Co., 75 N. J. Eq. 351, 72 Atl. 1091; Kilmer v. Wilson, 49 Barb. (N. Y.) 86; Aumiller v. Dash, 51 Wash. 520, 99 Pac. 583; Mitchell v. Prepont, 68 Vt. 613, 35 Atl. 496. See Abercrombie v. Simmons, 71 Kan. 538, 114 Am. St. Rep. 509, 1 L. R. A. N. S. 806, 6 Ann. Cas. 239, 81 Pac. 208.
That there is given a right of exclusive user of a part of the land, either on the surface, or in a stratum below the surface, appears, according to the English cases, to indicate conclusively that something more than an easement is transferred, that the ownership of the land is to that extent conveyed. See article by Charles Sweet, Esq., on "The 'easement' of Tunnelling," 32 Law Quart. Rev. 70; Taylor v. Corporation of St. Helens, 6 Ch. D. 264; Reilly v. Booth, 44 Ch. D. 12. To the same effect appear to be the American cases, Little-field v. Maxwell, 31 Me. 134; Cortelyou v. Van Brunt, 2 Johns. (N. Y.) 357. Compare cases cited ante, Sec. 360, note 12.
34a. Overton v. Moseley, 135
Ala. 599, 33 So. 696; Robinson v.
Missisquoi R. R. Co., 59 Vt. 426,
Decisions to the effect that if a cotenant does grant an easement, the grantee can demand a partition in order that the easement may be established upon that part of the land allotted to his grantor.36
10 Atl. 522; Biles v. Tacoma R.
Co., 5 Wash. 509, 32 Pac. 211.
35. Pfeiffer v. University of California, 74 Cal. 156, 10 Pac. 622; Collins v. Prentice, 15 Conn. 423; Marshall v. Peck, 28 Conn. 183; Clark v. Parker, 106 Mass. 554; Crippen v. Morse, 49 N. Y. 63; Palmer v. Palmer, 150 N. Y.
The creation of an easement by devise, which occurs but infrequently, may be considered as one phase of the creation of easements by grant.36a It occurs when the testator, in devising land, provides that the devisee shall have an easement over other land belonging to him.36b And the acquisition of an easement by condemnation,36c or, by what may be regarded as closely analogous thereto, the payment of a judgment for damages as on account of the maintenance of a permanent nuisance,36d are also substantially varieties of acquisition of an easement by grant, as is the acquisition of an easement by force of a decree in partition proceedings.36e
- Party wall rights. Occasionally the owner of land grants to an adjoining owner the privilege of utilizing a wall already constructed on the former's land as a party wall, that is, as a division wall and for purposes of support, More usually, however, a wall
139, 55 Am. St. Rep. 653, 44 N. E. 966. It follows that he cannot create it in favor of land owned by him in severalty. Palmer v. Palmer, 150 N. Y. 139, 55 Am. St. Rep. 653, 44 N. E. 966; City Club v. Mcgeer, 198 N. Y. 160, 91 N. E. 539.
36. Charleston, C. & C. R. Co v. Leech, 33 So. Car. 175, 26 Am. St. Rep. 667, 11 S. E. 631; Mc-elroy v. Mcleay, 71 Vt. 396, 45 Atl. 898.
36a. See Goddard, Easements, (6th Ed.) 125.
36b. See e. g., Lide v. Hadley, 36 Ala. 627, 76 Am. Dec. 338;
McKenney v. Mckenney, 216 Mass, 248, 103 N. E. 631; Wiley v. Ball, 72 W. Va. 685, 79 S. E. 659.
36c. Post, Sec. 561.
36d. See editorial note, 7 Co-umbia Law Rev. at p. 277; Sedgwick, Damages, Sec.Sec. 93, 95, 924, 924a; Lewis, Eminent Domain, Sec.Sec. 937, 948.
36e. See e. g., .Mount Hope Iron Co. v. Dearden, 140 Mass. 430, 4 N. 10. 803; Bornstein v. Doherty, 204 Mass. 280. 90 N. E. 531; Bean v. Coleman, 44 N. H. 539; Richardson v. Armington, 10 R. I. 339.
2 R. P. - 5 acquires the characteristics of a party wall by reason of what is known as a party wall agreement, executed before the erection of the wall. For instance, if A and B own adjoining lots, and A contemplates the erection of a building on his lot, they may enter into an agreement by which A acquires from B the privilege of placing one wall of the building, to the extent of half its thickness, upon B's land, with a stipulation that B may use the wall for the purpose of such building as he may desire to erect, upon payment by him of one-half, or other proportioned part, of the cost of the wall. Or it may be that, without specifying which is to erect the wall, it is provided that the one erecting it may place one-half upon the other's land, and that the other may utilize the wall upon paying part of the cost. Assuming that A is the one who is to erect the wall, it would seem that B's agreement that he may erect it in part on B's land involves the grant to A of an easement in B's land, while A's agreement that B may utilize the wall on the payment of part of the cost of construction involves the grant of an easement in A's land as regards the part of the wall to be placed thereon. And likewise if it is not specified which owner is to erect the wall, there are, it appears, mutual grants of easements betwteen the parties. As to the ownership of that part of the wall erected by A upon B 's land, the cases are to the effect that it belongs to A until B makes use of it,37 or pays a part of its cost for the purpose of utilizing it,38 whereupon it passes into the ownership of B.