192

IMPLIED GRANT.

THE subject of Implied Grant is one of increasing importance in the law of real property. The general principle that every grant of property implies a grant of accessory rights absolutely necessary to the beneficial enjoyment of the subject has long been established. At present we desire to direct attention to a subordinate or special principle in this title of law which has recently received some valuable illustrations in both England and Scotland. The question has been well stated in the technical language of English law by Mr. Goddard in his valuable book on Easements, which is practically a reproduction of the specimen Digest on that subject which he prepared on the employment of the Digest of Law Commissioners: "Whether an owner of land who has been in the habit of using apparent and continuous quasi-easements in his own soil during unity of ownership, does or does not grant or reserve a right to them by implication if he without any special stipulation, and without using any general words which could operate as a grant or reservation of them, conveys to a purchaser that portion of his land for the beneficial occupation of which he has been in the habit of using them, or reserves that portion, granting to a purchaser the quasi-servient tenement?" (Goddard on the Law of Easements, pp. 106, 107. 1870).

In Pyer v. Carter (Feb. 21, 1857, 1 H. and N. 916) the plaintiff and defendant were owners of adjoining houses which had originally been one house belonging to one Williams. During Williams' unity of possession he divided the house into two, the first of which he conveyed to Carter without any reservation, and the second of which some time after he conveyed to Pyer. Before and after these conveyances a drain or sewer ran under the part of the house which was conveyed to Pyer, and was continued under the part of the house which was conveyed to Carter. Water from the eaves of Carter's house fell on Pyer's house, and so down a spout into the sewer, which four years after the date of the conveyance Carter began to obstruct. The consequence was that Pyer's house was flooded. Pyer brought an action to declare his right to have the sewer continued. Carter did not know of the sewer being there when he bought his house. On the other hand, it was proved that Pyer could make a sewer for himself at a cost of £6. It will be observed that in this case there were no general words in the conveyance in favour of the plaintiff which could be founded on as passing expressly any accessory right. But though such words might have assisted the plaintiff in establishing a claim in the nature of warrandice against the seller, this circumstance was not important, because the conveyance in favour of the defendant having been first in date, and first followed by possession, the true question was whether the right to continue the use

of the sewer had been by implication (for there was nothing said about it in the defendant's conveyance) reserved in favour of the seller. If it had not been so reserved, of course it could not afterwards have been granted, whether by words or implication, in favour of the plaintiff. The two conveyances were not granted unico contextu; they were granted in favour of strangers, and could not be regarded as one transaction. The plaintiff's claim was sustained by the Court of Exchequer. Baron Watson in his judgment said: 'It seems in accordance with reason that where the owner of two or more adjoining houses sells and conveys one of the houses to a purchaser, such house in his hands should be entitled to the benefit of all the drains from his house, and subject to all the drains then necessarily used for the enjoyment of the adjoining house, and that without express reservation or grant, inasmuch as he purchases the house such as it is. If that were not so, the inconveniences and nuisances in town would be very great. Where the owner of several adjoining houses conveyed them separately, it would enable the vendee of any one house to stop up the system of drainage made for the benefit and necessary occupation of the whole." He then refers to an early English case in which the right to water-pipes, which the seller had constructed from his adjoining land to a house, were held to pass with the house (granted with appurtenances, however), or to be contained in a reservation of the house from the sale of the land, because the right was "necessary and quasi-appendant thereto." With regard to the fact that Pyer might easily have supplied himself with another drain, Baron Watson said that "necessity" meant necessity at the time of the conveyance, and as matters stood without alteration. And the defendant's averment, that he knew nothing about the drain at the date of his purchase, was disposed of by a reference to the doctrine stated by Mr. Gale (Gale on Easements, p. 53), that by "apparent signs" must be understood not only "those which must necessarily be seen, but those which may be seen or known on a careful inspection by a person ordinarily conversant with the subject." The reasoning of this decision is admirable and conclusive when applied to the construction of a grant of A subject to burdens in favour of B, an independent property held by a different owner on a different title. There, the rights of third parties in B cannot be affected by the conveyance of A, and therefore the contract between the seller and buyer of A is presumed to be subject to the burdens into which it was the duty of the buyer to inquire. But the reasoning hardly satisfies the case where the burden sought to be imposed was one within the power of the seller to discharge, because it depended for its existence on his own enjoyment of the adjoining properties, no interest having been created in a third party at the date of the conveyance.

In Dodd v. Burchell (24th January 1862, 1 Hurl. and Colt, 113) there was a passage down the side of the plaintiff's house, part of

which was covered by the first floor of the house, and into which a door opened from that house and also a door from the plaintiff's garden, which lay behind the house. Prior to the conveyance to the plaintiff, these doors and the passage had been used as the access from the house to the garden, though the garden could also be reached by a ground-window from the kitchen of the house. The passage led to a cottage built by the owner of the entire plot of ground. The cottage was first conveyed with dimensions stated in a plan which included the passage, not only at the point where the garden door stood, but for several feet under the first floor of the house. The conveyance gave a right of ingress and egress by the passage so far as not conveyed. Two years afterwards the house was conveyed "as the same was then held and enjoyed by the vendors," including a portion of the passage previously conveyed with the cottage, being that covered by the first floor of the house. Burchell, the disponee of the cottage, shut up the garden door opening into the passage, and Dodd, the disponee of the house, brought an action to have his right of entry by the garden door declared. It was argued for him that the right claimed was necessary for the reasonable enjoyment of the subject, and must therefore have been excepted out of the ex facie absolute conveyance of the cottage and premises as described in the plan. It did not matter whether the dominant or servient tenement was first conveyed. The Court of Exchequer refused to extend the doctrine of Pyer v. Carter to a right of way. Pollock, C.B., said that a right of way used and enjoyed during the unity of ownership would not pass on a severance of the tenements unless there was something in the conveyance to show an intention to create the right de novo. Baron Martin said that Pyer v. Carter had gone to the utmost extent of the law; and Baron Wilde said that "it would be most dangerous to hold that where a deed is silent as to any reservation of a way, it must exist as a way of necessity, because it is more convenient than another way."

In Polden v. Bastard (Nov. 28, 1865, L. R. 1 Q. B. 156) the testatrix was at the date of her death owner and occupant of a house in the yard of which was a well and pump. She was also owner of the house, outhouse, and garden immediately adjoining which were occupied by her tenant, Answood, whom she permitted for about twenty years before her death to use a footway leading into the yard, and thus to draw water from the well there for all his domestic purposes. There was no other existing supply of water, though there was a river 150 yards off, and water might have been got by digging 18 or 20 feet deep. The testatrix bequeathed to her nephew the first-mentioned house, which was in her own occupation; and to her niece she bequeathed the house second mentioned, "as now in the occupation of Answood." The nephew, or his successor, put up a fence across the path, and so cut off the water supply of the second house. On these facts it was argued for the

niece (1) that the words "as now occupied" were sufficient to pass the quasi-easement of aquæ haustus, just as the words "enjoyed by me," or "wherein I now live," etc., had frequently been held to pass outhouses, etc., though beyond the limits of the particular tenement conveyed by name; and (2) that the case fell under the rule of Pyer v. Čarter. But C. J. Erle rejected this claim, because the words used were only words of specific description, and because the quasi-easement was neither necessary nor continuous, being exercised only from time to time.

In Watts v. Kelson (Jan. 16, 1871, L. R. 6 Ch. App. 166) the owner of two properties, A and B, had made a drain from a tank on B to a lower tank also there, and had laid pipes from the lower tank to A, on which were cattle-sheds. The tank was supplied by a natural watercourse flowing from B to A. In that state of unity of possession A was first sold with all "waters, watercourses, rights, privileges, advantages, and appurtenances whatsoever to the premises belonging, or with the same or any part thereof held, used, enjoyed, or reputed as part thereof, or appurtenant thereto." A subsequent purchaser of B stopped the supply of water in the pipes, the cattle-sheds on A having been supplanted by cottages. In this case the Court of Appeal held that the easement was continuous and passed, even apart from the very general words used. As L.-J. Mellish observed, "there was an actual construction on the servient tenement extending to the dominant tenement by which water was continuously brought." On the question of necessity, the Court thought it sufficient that no other supply of water equally pure, or equally convenient, could have been obtained. It is clear that Watts v. Kelson is not a very valuable illustration of the general principle of implied grant, because the general words of conveyance were very strong and comprehensive, and indeed were expressly said by the Court to be sufficient to pass the right to the water. Such words have in fact been extended so far as to include a right of way (which, as we have seen, being a right of occasional, not continuous, exercise, does not fall under the general principle of implied grant), at least where there was an apparent road completely or partially formed. But the main interest which for our present purpose attaches to Watts v. Kelson is that several of the Judges there took occasion to dissent from the opinion expressed by Lord Westbury in deciding the case of Suffield v. Brown (33 L. J. Ch. 249). In that case a harbour and a pier, originally belonging to the same owner, had been separately conveyed, first the pier and then the harbour. The second disponee claimed right to project the bowsprits of the vessels using the harbour over a portion of the pier. This had undoubtedly been the practice before the unity of possession was disturbed, and it was said to be necessary for certain vessels in certain states of the tide. It will be observed that the right was claimed, as in Pyer v. Carter, in virtue of an

in date to the conveyance of A), and the Court held that this obstruction was perfectly lawful, because no right to use the close for entry had passed by implication on the conveyance of A when the unity of possession was severed. The reason of the judgment is obvious enough. As Lord Justice-Clerk Moncreiff said, referring to the doctrine of Cochrane v. Ewart: "It is not enough that a common proprietor should so use the subject as to infer that he was using one for the benefit of the other. It must be such a use as when the subjects are separated is necessary to the comfortable enjoyment of the subject." Here the claimant had destroyed a perfectly adequate means of access which he took under the express words of his grant, and there was, therefore, no necessity for appealing to the principle of implied grant in order to give the disponee a comfortable enjoyment of his subject. But even in such a case much of course would depend on the character and fixed uses of the subjects granted. Instances may easily be imagined in which a double access might be essential to comfortable enjoyment. In Gow's Trustees v. Mealls some of the Judges were to a certain extent influenced by the fact that prior to the unity of possession the subjects had originally been separate, and yet no servitude had been created for the benefit of the subject now claiming a quasi servitude. As, however, the periods of time were considerable, the character of the possession of both subjects may have entirely changed, and therefore in most cases this circumstance, viz. of the properties being originally separate, cannot be held entitled to great weight.

In Alexander v. Butchart the facts were equally simple. A house in Dundee was used on the first story as a shop, of which the signboard projected upwards considerably above the line dividing the first from the second story. The shop flat was first sold to Butchart, the tenant, "as presently occupied by him, with the whole pertinents." The upper portion of the house was then sold to Alexander, who brought a declarator and interdict against Butchart continuing the use of the signboard above the medium filum of the joists between the first and second stories (see the case of Dickson v. Morton, Nov. 23, 1824, 3 S. 310). Butchart did not even undertake a proof that the former position of the signboard was necessary to the beneficial possession of the shop, but seems to have rested his case on the proposition that a sign is a necessary adjunct of a shop, which may be generally true, but was certainly not adequate to the facts of the case, as a sign is generally placed upon the property signified, and not upon a neighbour's property. It may be observed that in this case both Lord Gifford and Lord Rutherfurd Clark reserved their opinion on the question, whether, assuming a servitude of this kind (not being one of the legal servitudes) to have been made the subject of agreement with the first purchaser, the agreement (express or implied) would have bound a singular successor in the remaining portion of