house, the plaintiff brought his action; and it was held there that the plaintiff was entitled to maintain his action, and that upon the original conveyance to the defendant, there was a reservation to the grantor of the right to carry away this water which came from the defendant's premises by the medium of the drain, which also went through his premises. Though those circumstances were special in their character, there is no doubt that the principles laid down by the Court of Exchequer were as wide as possibly could be. The Court laid down that there was no distinction between implied reservation and implied grant; and this, as it appears to me, broke the hitherto unbroken current of authority upon this subject."

His Lordship then states that the principles of law laid down in Pyer v. Carter were distinctly overruled in White v. Bass (i), and cites with approval the judgment of Lord Westbury in Suffield v. Brown as stated on a former page (k). "But," he continues, "Suffield v. Brown (k) has been confirmed by an equally high authority, for, in Crossley & Sons v. Lightowler (1), Lord Chelmsford as Lord Chancellor had to deal with a similar question, and he there says: Lord Westbury, however, in the case of Suffield v. Brown, refused to accept the case of Pyer v. Carter (m) as an authority, and said: "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 to 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." I entirely agree with this view. It appears to me to be an immaterial circumstance that the easement should be apparent and continuous, for non constat that the grantor does not intend to relinquish it unless he shows the contrary by expressly reserving it. The argument of the defendants would make, in every case of this kind, an implied reservation by law; and yet the law will not reserve anything out of a grant in favour of a grantor, except in case of necessity.' Now the only case in the Court of Appeal which is suggested as being contrary to this high authority of two Lord Chancellors is Watts v. Kelson (n), and no doubt there are observations of Lord Justice Mellish to the effect that the order of conveyance in point of date is immaterial, that Pyer v. Carter (o) is good sense and good law, and that most of the common law judges have not approved of Lord Westbury's observations. But, putting aside for the moment that this was

(i) 7 H. & N. 722.

(k) 4 De G. J. & S. 185; ante, pp. 236 et seq. (1) L. R. 2 Ch. 478.

(n) L. R. 6 Ch. 166, 174.

(m) 1 H. & N. 916. (0) 1 H. & N. 916.

a mere dictum of the Lord Justice during the argument, I must observe that this is not exactly so, as in White v. Bass (p), the judges of the Court of Exchequer had distinctly, as regards the reasoning of Pyer v. Carter, overruled that case. No doubt also, Lord Justice James says, I am satisfied with the decision in Pyer v. Carter.' But in the considered judgment of the Court, when, if it had been intended to say that Suffield v. Brown (q) was not law, one would have thought there would have been something distinct upon the point, there is not one word to the effect of that which had been said by the Lord Justices during the argument. All that is said about it is this: Lord Justice. Mellish, who delivered the judgment, after referring to Nicholas v. Chamberlain (r), said, 'This case has always been cited with approval, and is identical not only in principle, but in its actual facts, with the case now before us. It was expressly approved of by Lord Westbury in Suffield v. Brown (8), where, though he objected to the decision in Pyer v. Carter (t), in which it was held that a right to an existent continuous apparent easement was impliedly reserved in the conveyance by the owner of two houses in the alleged servient houses, yet he seems to agree that the right to such an easement would pass by implied grant where the dominant tenement is conveyed first;' and that is what the Court of Appeal had to decide in Watts v. Kelson (u). Therefore Watts v. Kelson is no authority to justify us in overruling Suffield v. Brown-still less for overruling it, supported as it is by the case of Crossley & Sons v. Lightowler (x). Thus, then, as it appears to me, stand the principal authorities on the general rules of law which I stated at the commencement of this judgment." The Lord Justice then notices a number of other cases (y) which were cited to illustrate the exceptions to the second general rule laid down by him at the commencement of his judgment-viz., ways of necessity-and continues: "These cases in no way support the proposition for which the appellant in this case contends; but, on the contrary, support the propositions that in the case of a grant you may imply a grant of such continuous and apparent easements, or such easements as are necessary to the reasonable enjoyment of the property conveyed, and have, in fact, been enjoyed during the unity of ownership; but that, with the

(p) 7 H. & N. 722

(q) 4 De G. J. & S. 185.

(r) Cro. Jac. 121.

(s) 4 De G. J. & S. 185.

(t) 1 H. & N. 916.

(u) L. R. 6 Ch. 166.

(z) L. R. 2 Ch. 478; 36 L. J. Ch. 584; 16 L. T. 638.

(y) Pennington v. Galland, 9 Ex. 1, 12; Clark v. Cogge, Cro. Jac. 170; Staple v. Haydon, 6 Mod. 1; Chichester v. Lethbridge, Willes, 72, n.; Dutton V. Taylor, Lutw. 1487; Davies v. Sear, L. R. 7 Eq. 427, 431.

L.W.

16

case.

exception which I have referred to of easements of necessity, you cannot imply a similar reservation in favour of the grantor of land. Upon the question whether there is any other exception, I must refer both to Pyer v. Carter (z) and to Richards v. Rose (a); and, although it is quite unnecessary for us to decide the point, it seems to me that there is a possible way in which these cases can be supported without in any way departing from the general maxims upon which we base our judgment in this I have already pointed to the special circumstances in Pyer v. Carter, and I cannot see that there is anything unreasonable in supposing that in such a case, where the defendant under his grant is to take this easement which had been enjoyed during the unity of ownership, of pouring his water upon the grantor's land, he should also be held to take it, subject to the reciprocal and mutual easement by which that very same water was carried into the drain on that land, and then back through the land of the person from whose land the water came. It seems to me to be consistent with reason and common sense that these reciprocal easements should be implied; and, although it is not necessary to decide the point, it seems to me worthy of consideration in any after case, if the question whether Pyer v. Carter is right or wrong comes for discussion, to consider that point. Richards v. Rose, although not identically open to exactly the same reasoning as would apply to Pyer v. Carter, still appears to me to be open to analogous reasoning. Two houses had existed for some time, each supporting the other. Is there anything unreasonable-is there not, on the contrary, something very reasonable-to suppose in that case that the man who takes a grant of the house first, and takes it with the right of support from that adjoining house, should also give to that adjoining house a reciprocal right of support from his own?" His Lordship concludes his judgment by referring again to the case of Swansborough v. Coventry (b), and by holding that in the present case the fact that the two tenements, though not sold together, were put up at an auction together as part and parcel of one sale, could not affect the question (c).

An easement exercised for the benefit of the dominant estate is not invalid merely because from the very nature of its exercise by the dominant estate it confers some benefit on other tenements (d).

(z) 1 H. & N. 916.

(b) 9 Bing. 305; 35 R. R. 660.

(a) 9 Ex. 218.

(c) As to this last point, see Ewart v. Belfast Guardians, ante, p. 229, and n. (u).

(d) Simpson v. Godmanchester Corporation, [1897] A. C. 696; 66 L. J. Ch. 770; 77 L. T. 409, H. L. (E.). In this case the corporation of Godmanchester, as owners of certain lands, had for more than 200 years opened, as of right, the gates of certain sluices or locks belonging to the appellant upon the river

46

necessary to pass an easement not of necessity.

With regard to what words are necessary in a conveyance to What words pass an easement not necessary to the enjoyment of the tenement granted, it has been held that general words, such as appertaining," "belonging," &c., are insufficient on the severance of tenements to pass such rights as ways, commons, &c.; but in the case of Wardle v. Brocklehurst it was held that, by the grant of a farm with the usual words "with all watercourses used, occupied, or enjoyed with the premises," the benefit of a culvert, and a stream of water running through the lands of the vendor to the farm granted, passed; and Lord Campbell says, "The land must be taken to be conveyed in the state in which it then was, that is, we must take it that the culvert so bringing down the water and all the watercourses are granted, not only those which belong and appertain to the premises, but also those which were used and enjoyed therewith." This judgment was affirmed in the Exchequer Chamber, and it was held that the defendant was entitled to use the water, not only for the farm which was sold to him, but for a manufactory which he possessed beyond (e). In Pullan v. Roughfort Bleaching Co. (f), lands on which were certain dams and artificial watercourses leading therefrom, and which were held under leases containing reservations of all mills, mill-seats, dams, dam-seats, water, and watercourses, and all convenient ways to and from the same, were ordered to be sold in an administration suit. They were accordingly put up for sale by auction in four lots, the particulars and conditions of sale, which set out the reservations in detail, stating that each lot would be sold subject to all rights and easements legally existing. The sale by auction proved abortive. The plaintiff subsequently tendered for lot 4. His offer was accepted, and his lot was conveyed to him "excepting and reserving all such matters and things as are excepted and reserved in and by the said recited indenture of lease," and also subject to all such rights and easements as then existed or affected the premises. After the acceptance of the plaintiff's offer, and before the conveyance to him, H. made a tender for lot 3, which was accepted; and this lot was by deed, subsequent to the plaintiff's conveyance, assigned to him with similar exceptions, reservations, &c. H. assigned his interests to the defendants. Prior to, and at the time of, the plaintiff's proposal and conveyance, some of the artificial watercourses flowed from lot 3 to lot 4, and the water thereof was utilised for certain

Ouse in time of floods, or likelihood of flood, in order to prevent damage to those lands, and it was held that the easement was good and was none the worse because the exercise of it also benefited lands belonging to other persons. (e) 1 E. & E. 1058; 29 L. J. Q. B. 145; 1 L. T. 579. See also Watts v. Kelson, L. R. 6 Ch. 175.

(f) 21 L. R. Ir. 73; see also Hall v. Laird, 32 L. J. Ex. 113; 7 L. T. 692; 1 H. & C. 676.

Easements acquired by devise.

Secondary easements.

purposes on this lot. The lessor had never interfered or expressed any intention of interfering with the plaintiff's user or enjoyment of these watercourses. The defendants obstructed the water flowing therein:-The Court held, that the plaintiff was entitled to a declaration as between him and the defendants of a right to the usual and accustomed flow of water, and to an injunction to restrain the defendants from obstructing the same, and that mere possession of rights, corporeal or incorporeal, is sufficient to maintain an action for disturbance of them against a wrongdoer.

Easements may be acquired by devise as well as by grant or user. Thus where two houses were devised by will to different persons, one house at the time enjoying a supply of water through a pipe which passed under the other house. It was held that the will devised the one house subject to the right of the other to a right of passage of such water as might flow through the pipe and that as the easement depended on implied grant a purchaser of the servient tenement could not rely upon the equitable doctrine of being a purchaser for value without notice (g).

It should be here noticed that the maxim of law is, that whosoever grants a thing, is supposed also tacitly to grant that without which the grant would be of no effect (h); and that consequently, upon the grant of an easement, all such secondary easements as are essential for its full enjoyment will pass also without further words of grant (i). Thus, where there is an easement of watercourse over another's land, there is an implied right of going on that land to clear and repair it, or its banks (k), and where there is a right of drawing water, this includes the right of going and returning over the servient owner's land (1), and of repairing a pump thereon (m). In executing works necessary for the enjoyment of the easement, nothing of course must be done to alter the accustomed mode of enjoyment in such a manner as to impose a greater burden on the servient tenement. Such secondary easements, forming in most cases one entire right with the principal easement, cease also on its extinction (n).

(g) Schwann v. Cotton, [1916] 2 Ch. 459; 85 L. J. Ch. 689.
(h) 11 Rep. 52; Angell, p. 278.

(i) See Gale (8th ed.), pp. 492, 575.

(k) Roberts v. Fellowes (1906), 94 L. T. 279.

(1) Goodhart v. Hyett, 25 Ch. D. 182; 53 L. J. Ch. 219; 50 L. T. 95; Brown v. Best, 1 Wils. 174; Bracton, lib. 4, ff, 232 a. 233 a; Nicholas v. Chamberlain, Cro. Jac. 121; Hinchcliffe v. Earl of Kinnoul, 5 Bing. N. C. 1; 50 R. R. 579; see also Pyer v. Carter, 1 H. & N. 916; Pearson v. Spencer, 3 B. & S. 761; Dodd v. Burchell, 1 H. & C. 113; and American cases in Angell, ch. 5.

(m) Pomfret v. Riecroft, 1 Wms. Saunders, 321; see also Buckley v. Buckley, [1895] 2 Q. B. 608; 67 L. J. Q. B. 953.

(n) Civil Law, L. 17, ff. quemad. serv. amit.; Peter v. Daniel, 5 C. B. 563; Beeston v. Weate, 5 E. & E. 986.