Riviere v. Bower, 1 Ry. & Moo. 24;

Ewart v. Cochrane, 4 Macq. 117; 7 Jur. (N. s.) 925; Hall v. Lund, 1 H. & C. 684; 1 N. R. 287; Gale, Easements, 85-88 (3rd ed. by Willes). 3rd. By the easement being "necessary" was meant, not an absolute necessity, but necessary for the reason able enjoyment, having regard to the mode of user down to, and at the time of the grant. The purchaser took the wharf as it then stood; and the question of what was necessary depended on the state of things at the date of the conveyance,

Pyer v. Carter (loc. cit.);

Ewart v. Cochrane (loc. cit.).

4th. By the easement being "continuous" was meant, not that it was enjoyed without intermission, but that it was enjoyed as often as the purpose or convenience served by the easement might require, Hall v. Lund (loc. cit.).

And by the easement being "apparent" was meant, not that it was necessarily visible, but that it might be seen or known on a careful inspection by a person ordinarily conversant with such matters,

Pyer v. Carter (loc. cit.).

5th. The fact that the deed under which the defendant claimed was prior in date to that under which the plaintiffs claimed was immaterial,

Pyer v. Carter (loc. cit.);
Richards v. Rose (loc. cit.);
Pinnington v. Galland, 9 Exch. 1.

6th. It was indifferent what was the nature of the easement, provided it were necessary for the most convenient and reasonable enjoyment of the dominant tenement,

Ewart v. Cochrane (loc. cit.).

continuous easement was one, the enjoyment of which could only be had by the interference of man,

Gale on Easements, 20.

If those definitions were correct, the servitude claimed in the present case was neither apparent nor continuous.

6th. The doctrine contended for on the other side applied only where there was an "apparent sign of servitude," by which was meant some physical construction which not only indicated, but actually gave, or conduced to the giving of, the thing enjoyed; as, e. g., a drain, a spout, &c., connecting the dominant and servient tenements. There must be something done on the property, some alteration made, which was in its nature both obvious and permanent, some substantial corporeal thing constructed, which, by reason of its construction, gave the easement to the dominant tenement. The case of Pyer v. Carter had been always regarded as going to the very verge of the law,

Worthington v. Gimson, 29 L. J., Q. B., 116;
6 Jur. (N. s.) 1053;

Pearson v. Spencer, 1 B. & S. 571; on appeal,
nom. Pearson v. Pearson, 1 N. R. 373;
Dodd v. Burchell, 1 H. & C. 113;

Polden v. Bastard, 2 N. R. 356;

and, even in Pyer v. Carter, the physical construction (the drain running under the two houses) existed. The comparison of Polden v. Bastard with

Nicholas v. Chamberlaine, Cro. Jac. 121, showed most clearly the distinction between continuous and discontinuous easements, between those which were by implication granted or reserved and those which were not.

7th. The limitation of the rule that "no man can derogate from his own grant," which is suggested by Mr. Gale in the case of the "disposition of the owner

1st. The vendor of 1845 was seised in fee simple of, and absolutely entitled to, both the wharf and the dock. He granted the wharf in the most ample terms without any reservation whatever, and could not derogate from his own grant.

2nd. The easement claimed was not "necessary." The dock could very well be used without the easement.

3rd. The doctrine of the "disposition of the owner of two tenements" (destination du père de famille) applied only to easements which were apparent and continuous, and not to easements which were nonapparent or discontinuous.

4th. Admitting that an "apparent" easement was not necessarily visible to the eye, yet it was neces sary that its existence should be shown by some external work or sign,

Gale on Easements, 21.

5th. A continuous easement was one of which the enjoyment was, or might be, continual without the

the implied reservation of necessary or continuous and apparent easements) is binding equally on the grantor and grantee, and those claiming under them respectively, and from which is deduced the conclusion that priority in order of conveyance is immaterial, is opposed to the view of Lord Holt in

Tenant v. Goldwin, 2 Ld. Raym. 1089,
which view was recently followed in
White v. Bass, 7 H. & N. 722.
Druce, in reply.

15 JAN. 1864.

THE LORD CHANCELLOR this day delivered judg ment as follows:

The plaintiffs are the owners of a dock situate on the Thames at Bermondsey, and used for repairing ships, principally sailing vessels. The defendant is the owner of a strip of land and wharf adjoining the dock, on which he has begun to build a warehouse. The plaintiffs have filed this bill for an injunction to

restrain such building, on the ground that when their dock is occupied by a vessel of large size her bowsprit must project over the boundary fence of the dock, across the defendant's premises, which it cannot do if the defendant's building is erected, and that they have a right to restrain such building, because it will deprive them of an easement or privilege which they are entitled to use or exercise over the land of the defendant.

The plaintiffs put their case upon possession and enjoyment of the privilege claimed by them of sufficient duration to create a legal title. The Master of the Rolls has decided (and I think correctly) that the plaintiffs have not proved a possession or enjoyment sufficient to create a legal title to an easement. Nevertheless, His Honour has granted the injunction.

From the year 1841 until the month of June, 1845, a person named Knox was the owner in fee, and also the occupier, both of the dock and the adjoining wharf; and the evidence proves that during such period, whenever a ship of large size was taken into the dock to be repaired, her standing bowsprit projected over and across the wharf. In June, 1845, the two properties were put up for sale by Knox, by public auction, in separate lots. In the description given in the particulars of sale it is stated that the dock was capable of holding two vessels of large size, and that at low water several vessels, or a steamer of the largest class, could safely lie on the ways for repairs. The piece of land described and sold as a "freehold coal wharf" is stated to be capable of being rendered worth a very large rent by a comparatively small outlay. It is represented, therefore, as an improvable property, and nothing is stated to show that the dock or its owners either then had, or were intended to have, any right or privilege over the adjoining wharf.

At the auction, the wharf was sold to one Gibson, and by the conveyance to him, which is dated in July, 1845, the vendor (who at the date of the execution of the deed still remained owner of the dock) conveyed the wharf to the purchaser, under whom the defendant claims, in the most unqualified manner, in fee-simple, "together with all privileges easements and appurtenances to the premises belonging, and all the estate, right, title, interest, property, claim and demand whatsoever both at Law and in Equity of the vendor in to or out of the same hereditaments and premises, and every part thereof." The dock was afterwards sold and conveyed to other persons under whom the plaintiff's claim.

The conveyance of the wharf, therefore, is the grant of a person who was, at that time, absolute owner of the dock, in respect of the ownership of which the present right is claimed by his grantees against the wharf. It is very difficult to understand how any right, interest, or claim in, over, or upon any part of the wharf could remain in the grantor, or be granted by him to a third person, consistently with the prior

absolute and unqualified grant that was so made of the wharf to the purchaser Gibson.

Assuming that the vendor had been in the habit, during his joint occupation of both properties, of making the wharf subservient in any way to the purposes of the dock, one would suppose that the right to do so was cut off and released by the necessary operation of an unqualified sale and conveyance of the subservient property. It seems to be more reasonable and just to hold, that if the grantor intends to reserve any right over the property granted, it is his duty to reserve it expressly in the grant, rather than to limit and cut down the operation of a plain grant (which is not pretended to be otherwise than in conformity with the contract between the parties) by the fiction of an implied reservation. If this simple rule be adhered to, men will know to what they have to trust, and will place confidence in the language of their contracts and assurances.

But this view of the case is not that taken by his Honour the Master of the Rolls. After stating that, in his opinion, the defendant was bound not to disturb the easement claimed by the plaintiffs, because, before acquiring the grant, he had notice of the existence of that easement, his Honour goes on to observe, that the grounds on which he thought the defendant could not contest this right in the plaintiff's were, that such projection of the bowsprits from the vessels in the dock was essential to the full and complete enjoy. ment of the dock as it stood at the time when Gibson, under whom the defendant claimed, purchased the wharf; and that Gibson had distinct notice of the fact, not merely from the description contained in the particulars of sale under which he bought, but also because it was patent and obvious to any one that if the largest vessel capable of being contained in the dockyard were admitted into it, the bowsprit must project over a portion of the wharf. And again, his Honour said, that if it were true that the dock could still be used, it was equally true that it could not be used exactly as it had been before; and, his opinion was, that the projection of the bowsprits was necessary for the due enjoyment of the dock in the ordinary sense of the term.

The effect of this is, that if I purchase, from the owner of two adjoining freehold tenements, the fee simple of one of those tenements, and have it conveyed to me in the most ample and unqualified form, I am bound to take notice of the manner in which the adjoining tenement is used or enjoyed by my vendor, and to permit all such constant or occasional invasions of the property conveyed to me as may be requisite for the enjoyment of the retained tenement in as full and ample a manner as it was used and enjoyed by the vendor at the time of such sale and conveyance.

This is a very serious and alarming doctrine. I believe it to be of very recent introduction, and it is in my judgment unsupported by any reason or principle when applied to grants for valuable consideration.

That the purchaser had notice of the manner in which the tenement sold to him was used by his vendor for the convenience of the adjoining tenement is wholly immaterial, if he buys the fee simple of his tenement, and has it conveyed to him without any reservation. To limit the vendor's contract and deed of conveyance by the vendor's previous mode of using the property sold and conveyed, is inconsistent with the first principles of law as to the effect of sales and con

veyances.

Suppose the owner of a manufactory to be also the owner of a strip of land adjoining it, on which he has been for years in the habit of throwing out the cinders, dust, and refuse of his workshops, which would be an easement necessary (in the sense in which that word is used by the Master of the Rolls) for the full enjoy ment of the manufactory; and suppose that I, being desirous of extending my garden, purchase this strip of land, and have it conveyed to me in fee simple, and the owner of the manufactory afterwards sells the manufactory to another person. Am I to hold my strip of land subject to the right of the grantee of the manufactory to throw out rubbish on it? According to the doctrine of the judgment before me, I certainly am so subject, for the case falls strictly within the rules laid down by his Honour, and it reduces them to an absurd conclusion.

The first introduction of this extraordinary doctrine appears to have been made in the following manner.A learned and ingenious author, the late Mr. Gale, published, in the year 1839, a work of great merit on this subject of easements, in which he derived from the doctrine of the French Code Civil certain rules with which he conceived that the law of England agreed; and inasmuch as these conclusions have been cited with approbation in some recent cases at Common Law, and as they form the principal support of the plaintiffs' argument, it is right to state and examine them. The passage is this:-"The implication of the grant of an easement may arise in two ways-first, upon the severance of an heritage by its owner into two or more parts; and secondly, by prescription. Upon the severance of an heritage a grant will be implied, first, of all those continuous and apparent easements which have in fact been used by the owner during the unity, though they have had no legal existence as easements; and secondly, of all those easements without which the enjoyment of the severed portions could not be had at all." (Gale, p. 81, 3rd. ed.)

It will be observed that the learned author is not here speaking of easements legally existing before the unity of possession, but of those which he supposes to arise for the first time by implication on the

severance.

If nothing more be intended by this passage than to state, that on the grant by the owner of an entire heritage of part of that heritage as it is then used and enjoyed, there will pass to the grantee all those

continuous and apparent easements which have been, and are at the time of the grant, used by the owner of the entirety, for the benefit of the parcel granted, then there can be little doubt of its correctness; but it seems clear that the learned writer uses the word "grant" in the sense of reservation, a mutual grant, and intends to state that when the owner of the entirety sells and grants a part of it in the fullest manner, there will still be reserved to such owner all such continuous and apparent or necessary easements out of or upon the thing thereby granted as have been used by the owner for the benefit of the unsold part of the heritage during the unity of possession. This is clearly shown by what is subsequently laid down, that it is immaterial which of the two tenements is first granted, whether it be the quasi dominant or quasi servient tenement.

But I cannot agree that the grantor can derogate from his own absolute grant so as to claim rights over the thing granted, even if they were at the time of the grant continuous and apparent easements enjoyed by an adjoining tenement, which remains the property of him, the grantor. Consider the easements as if they were rights, members, and appurtenances of the adjoining tenement; they still admit of being aliened or released; and the absolute sale and grant of the land in or over which they are claimed is inconsistent with the continuance of anything abridging the complete enjoyment of the thing granted which is separable from the tenement retained and can be aliened or released by the owner.

Many rules of law are derived from fictions, and the rules of the French Code, which Mr. Gale has copied, are derived from the fiction of the owner of the entire heritage, which is afterwards severed, standing in the relation of père de famille, and impressing upon the different portions of his estate mutual services and obligations, which accompany such portions when divided among the members of his family, or even, as it is said, in French law, when aliened to strangers. But this comparison of the "disposition of the owner of two tenements" to the "destination du père de famille," is a mere fanciful analogy, from which rules of law ought not to be derived; and the analogy, if it be worthy of grave attention, fails in the case to be decided; for when the owner of two tenements sells and conveys one for an absolute estate therein, he puts an end, by contract, to the relation which he had himself created between the tenement sold and the adjoining tenement, and discharges the tenement so sold from any burthen imposed upon it during his joint occupation; and the condition of such tenement is thenceforth determined by the contract of alienation, and not by the previous user of the vendor during such joint ownership.

And this observation leads me to notice the fallacy in the judgment of the Court of Exchequer in the case of Pyer v. Carter, being one of the two cases on which his Honour relies. In Pyer v. Carter

-

the owner of two houses sold and conveyed one of them to a purchaser absolutely and without any reservation, and subsequently sold and conveyed the remaining house to another person. It appears that the second house was drained by a drain that ran under the foundation of the house first sold, and it was held that the second purchaser was entitled to the ownership of the drain,—that is, to a right over the freehold of the first purchaser, because, said the learned Judges, the first purchaser takes the house "such as it is." But with great respect, the expression is erroneous, and shows a mistaken view of the matter; for in a question, as this was, between the first purchaser and the subsequent grantee of his vendor, the first purchaser takes the house, not "such as it is," but such as it is described and sold and conveyed to him in and by his deed of conveyance; and the terms of the conveyance in Pyer v. Carter were quite inconsistent with the notion of any right or interest remaining in the vendor.

It was held by the Court that the easement was "apparent,” because the purchaser might have found it out by inquiry; but the previous question is, whether he was under any obligation to make inquiry, or would be affected by the result of it, which, having regard to his contract and conveyance, he certainly was not. Under the circumstances of the case of Pyer v. Carter, the true conclusion was, that as between the purchaser and the vendor, the former had a right to stop and block up the drain where it entered his premises, and that he had the same right against the vendor's subsequent grantee. I cannot look upon the case as rightly decided, and must wholly refuse to accept it as an authority.

But to the earlier cases cited by the Court in Pyer v. Curter, as authorities for its decision, there can be no objection. In Nicholas v. Chamberlaine it was decided that if the owner of a house, being also owner of the land surrounding it, make a conduit through part of the land to the house, and then sell the house with its appurtenances, the right to the conduit passes; that is to say, the Court held that the conduit was a thing appertaining to the house, and as such passed under the conveyance; and in the same case it was also decided that if the owner sell the land, reserving the house, the right to the conduit is reserved,- -a decision which merely amounts to this, that as the grant of a house is a grant of it with its appurtenances, so the reservation of a house is the reservation of it with its appurtenances. To this case, and to the case of Coppy v. J. de B., in the Year Book, 11 Hen. 7, 25, pl. 6, or the case of Sury v. Pigot (Poph. 166, Palm. 444), there can be no objection, but they do not give any support to the decision in Pyer v. Carter.

The other case relied on by his Honour, namely, Hinchcliffe v. The Earl of Kinnoul, is of a different character, and does not apply to the question of easements reserved by implication on the grant of the

quasi servient tenement. In that case, there being two adjoining houses belonging to the same lessor, it appeared that the coal-cellar under one house was supplied through a shoot, the mouth of which opened in the yard of the other; and it was held that a demise, by the owner of both houses, of the first house with its appurtenances, carried with it the right to use the coal shoot, and also a right of way to the coal shoot through the premises of the adjoining house, such way being necessary for the enjoyment of the coal shoot,— a decision which rests upon the ordinary principle of law, that if I grant a tenement for valuable consideration, I also grant a right of way to it through my land, if such way be necessary for the enjoyment of the tenement granted.

This case might have had some application to the present, if the dock had been the property first sold, and had been conveyed with all privileges, easements, rights and appurtenances as then used and enjoyed by the vendor, he being still the owner of the adjoining wharf; but it is plain that no easement can arise by the necessary operation of a grant, unless it be in the power of the grantor to give such easement. It is true that there may be two tenements, as for example, two adjoining houses, so constructed as to be mutually subservient to and dependent on each other, neither being capable of standing or being enjoyed without the support it derives from its neighbour, in which case the alienation of one house by the owner of both would not estop him from claiming, in respect of the house he retains, that support from the house sold, which is at the same time afforded in return by the former to the latter tenement (which was the case of Richards v. Rosc); but where the right claimed in respect of the tenement retained by the joint-owner against the tenement granted by him is separable from the former tenement, it is severed and extinguished by the grant.

It must be borne in mind that I have been speaking throughout of cases where (as in the present) the easement claimed had no legal existence anterior to the unity of possession, but is claimed as arising by implied grant or reservation upon the disposition of one of two adjoining tenements by the owner of both; this is, in my opinion, an ingenious but fanciful theory, which, as to one part, is not required by, and as to the other part, is wholly inconsistent with, the plain and simple principles of English law that regulate the effect and operation of grants of real property.

There is, in my opinion, no possible legal ground for holding that the owner of the dock retained, or had in respect of that tenement, any right or easement over the adjoining wharf after the sale and alienation of the latter in the year 1845. I must entirely dissent from the doctrine on which his Honour's decree is founded, that the purchaser and grantee of the wharf must have known, at the time of his purchase, that the use of the dock would require that the bowsprits of large vessels