out allowing the licensee a reasonable time for the removal of his goods(u).

"A dispensation or license," observes Vaughan, C.J., "properly passeth no interest, nor alters or transfers property in any thing, but only makes an action lawful, which without it had been unlawful. Thus a license to hunt in a man's park, and carry away the deer killed to his own use; to cut down a tree in a man's ground, and to carry it away the next day after to his own use, are licenses as to the act of hunting and cutting down the tree; but as to the carrying away of the deer killed and tree cut down, they are grants "(v).

A mere license of pleasure, such as a license to hunt over a man's land, whether made by deed or simple contract, is revocable; but a license to hunt and carry away the game killed amounts, if under seal, to a grant, and cannot be revoked (w). Care, however, must be taken to distinguish between a license amounting to a grant of an easement to be exercised and enjoyed by the grantee of such license upon the grantor's land, and a license to the grantee to use his own land in a way which, but for an easement claimed thereon by the grantor, he would have an undoubted right to use it(x).

Rights which are part of the ownership of the soil, unless expressly reserved under Inclosure Acts, pass with the soil to the persons to whom allotments are made(y). Where, therefore, by an Act for the inclosure and allotment of waste lands in a manor, it was provided that nothing in the Act should defeat the right of the lord of the manor to the seigniories and royalties incident to the manor, but that he should hold and enjoy all courts, fairs, markets, etc., with free warren and liberty of hunting, hawking, fishing, and fowling "to the said manor, or to the lord thereof, incident, belonging, or appertaining," in as ample a manner as before the Act, it was held that, as his right to sport over the waste before the Act was not a license or liberty "incident to him as lord," but a method of direct enjoyment of his own soil and freehold, the Act did not reserve any such right of sport

(u) Cornish v. Stubbs, L. R., 5 C. P. 334. See Druse v. Wheeler, 22 Mich, 439; Heermance v. Vernoy, 6 Johns. 5; Blake v. Jerome, 14 Johns. 406; Newkirk v. Sabler, 9 Barb, 652, (v) Thomas v. Sorrell, Vaughan, 351.

(w) Bro. Abr. LICENSES. As to a license to fish, see Mills v. Mayor of Colchester, L. R., 2 C. P. 476; 3 ib. 575.

(x) Winter v. Brockwell, Liggins v. Inge, post. PAROL ABANDONMENT OF INCORPOREAL RIGHTS. See Veghte v. Raritan Water Power Co., 4 C. E. Green, 153; Morse v. Copeland, 2 Gray, 302; Elliott v. Rhett, 5 Rich. 405; Dyer v. Sanford 9 Met. 395; Curtis v. Noonan, 10 Allen, 406.

(y) Townley v. Gibson, 2 T. R. 701. Doe v. Davidson, 2 M. & S. 175.

ing to him, and that his right thereto was gone(z). A fortiori, therefore, where the Act provided that a certain portion of the waste should be allotted to the lord of the manor in satisfaction for his right and interest as such lord (a). The Enclosure Commissioners, however, have power under the 11 & 12 Vict. c. 99, s. 1, to sever the right to take game from the ownership of the soil, if the lord of the manor makes that a condition of his assent to the enclosure (b). Where, therefore, in the reservation of the manorial rights of sporting in the Act other rights not manorial, such as the right of taking coals, minerals, etc., were joined in the reservation, it was held that the right of sporting was not lost, but that the terms of the clause, though nominally one of reservation only, were sufficient expressly to create or confer such a right(c).

117 Reservation of privileges amounting to an express grant.—Where a conveyance of lands contains words excepting and reserving to the grantors, their heirs and assigns, liberty to come upon the land and hunt, hawk, fish, and fowl, the clause will operate as a grant of the privilege by the person to whom the land is conveyed(d). Where the owner of a manor and of the demesne lands thereof, granted away the manor and all his estate and interest therein, "except and always reserved" to the grantor, his heirs and assigns, all the coal in any of the said lands, it was held that this reservation gave to the grantor an absolute and perpetual right in fee simple to the coals(e). If a lessor reserve out of a demise "the free running of water and soil coming from any other buildings and lands contiguous to the premises hereby demised," the reservation extends only to water in its natural condition, but it includes all water that comes lawfully from the adjoining premises, whether it arose there or not(f).

118 Implied reservation or grants of easements.-It does not follow that because the necessity of an easement is apparent upon the face of property which has been sold or granted away, there is an implied

(z) Greathead v. Morley, 3 M. & G. 139. Bruce v. Helliwell, 5 H. & N. 609, acc.

(a) Robinson v. Wray, L. R., 1 C. P. 490.

(b) Musgrave v. Forster, L. R., 6 Q. B. 590.

(e) Ewart v. Graham, 7 H. of L. Ca. 331. Musgrave v. Forster, supra. Leconfield (Lord) v. Dixon, L. R., 2 Exch. 202; 3 ib. 32, acc.

(d) Addison on Contracts, 6th ed. pp. 117, 118. But the grant is of a privilege or easement in gross, and is not assignable over. Post, p. 116.

(e) Cardigan (Earl of) v. Armitage, 2 B. & C. 197. Whitaker v. Brown, 46 Penn. St. 197. So where a grant of lands is qualified by the words "grass, herbage, feeding and pasturage only excepted," the qualification, if not good as an exception or reservation, is effectual to create an easement in the grantor to enter and depasture the lands. Rose v. Bunn, 21 N. Y. 275. As to the rights of the grantor's licensees, see Metcalf v. Westaway, 34 Law J., C. P. 113. (f) Chadwick v. Marsden, L. R., 2 Exch. 285.

reservation of such easement in favor of the vendor or grantor. “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, I am not bound to take notice of the manner in which the adjoining tenement is used or enjoyed by the vendor, and to permit all such constant or occasional invasions of the property conveyed, as may be requisite for the enjoyment of the remaining tenement in the mauner it was used and enjoyed by the vendor at the time of such sale and conveyance."(g).

But 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 owners of the entirety, for the benefit of the parcel granted. If, therefore, a landed proprietor has annexed peculiar qualities and incidents to different parts of his estates, so that one portion of his land becomes visibly dependent upon another for the supply or escape of water, or for means of access, or for beneficial use and occupation, the qualities or incidents thus manifestly imprinted upon the property pass with the lands to which they are annexed to the grantees, as accessorial to the beneficial use and enjoyment of such lands(h). If one erect a house and build a conduit thereto in another part of his land, and convey water by pipes to the house, and afterwards sell the house with the appurtenances without the land, or sell the land without the house to another, the conduit and pipes pass with the house, because they are necessary and appendant thereto; and the purchaser of the house shall have liberty by law to dig in the land for amending the pipes or making them as the case may require. So it is if a lessee for years of a house and land erect a conduit upon the land, and, after the term determines, the lessor occupies them together for a time, and afterwards sells the house with the appurtenances to one, and the land to another, the vendee shall have the conduit and the pipes, and liberty to amend them. "But" by Popham, C.J., "if the lessee erect such a conduit,

new,

(g) The Lord Chancellor, Suffield v. Brown, 33 Law J., Ch. 258. (h) Suffield v. Brown, ut sup. Lampman v. Milks, 21 N. Y. 505. Janes v. Jenkins, 34 Md. 1-11. Thompson v. Miner, 30 Iowa 386. New Ipswich Factory v. Batchelder, 3 N. H. 190. Thayer v. Payne, 2 Cush. 327. Simmons v. Cloonan, 47 N. Y. 3. Lasala v. Holbrook, 4 Paige 169. But the rule of law which creates an easement on the severance of two tenements or heritages by the sale of one of them is confined to cases where an apparent sign of servitude exists on the part of one of them in favor of the other, or as it is expressed by some of the authorities, where the marks of the burden are open and visible. Butterworth v. Crawford, 46 N. Y. 349. See Tabor v. Bradley, 18 N. Y. 109.

and afterwards the lessor during the lease sell the house to one and the land wherein the conduit is to another, and after that the lease determines, he who hath the land wherein the conduit is may disturb the other in the using thereof, and may break it, because it was not erected by one who had a permanent estate or inheritance, nor made one by the occupation or usage of them together by him who had the inheritance. So it is if a disseisor of a house and land erect such a conduit, and the disseisee re-enter, not taking conusance of any such erection, nor using it, but presently after his re-entry sells it, the house to one and the land to another, he who hath the land is not compellable to suffer the other to enjoy the conduit"(i).

When two properties are possessed by the same owner, and there has been a severance made of one part from the other, anything which was used and was necessary for the enjoyment of that part of the property which is granted will be considered to follow from the grant, if there are the usual words of conveyance(k). Where, therefore, the owner of two or more adjoining houses sells or conveys one of the houses, the purchaser of the house is entitled to the benefit of all the drains from his house, and is subject to all the drains necessarily to be used for the enjoyment of the adjoining house(), and that without any express reservation or grant; if that were not so, 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(m). If a man is possessed of a house, and there is a way necessary for the useful and convenient occupation of the house(n) manifestly used by the occupiers of the house, a grant or lease of the house with its appurtenances will carry with it the right to use the way(0). But if the way is not neces

(i) Nicholls v. Chamberlain, Cro. Jac. 121. Brown v. Nicholls, Moore, 682. Archer v. Bennett, 1 Lev. 131. Hinchliffe v. Earl Kinnoul, 5 Bing. N. C. 23. Canham v. Fisk, 2 Cr. & J. 126. Wardle v. Brocklehurst, 29 Law J., Q. B. 145; 1 E. & E. 1058. Watts v. Kelson, L. R., 6 Ch. App. 166.

(k) Ewart v. Cochrane, 4 Macq. 122; 7 Jur. N. S. 925. Hall v. Lund, 32 Law J., Exch. 113. Suffield v. Brown, ut sup.

(1) See, as to this position, Gale on Easements, 4th ed. p. 113; Thayer v. Payne, 2-Cush. 327; Johnson v. Jordan, 2 Met. 234; Randall v. McLaughlin, 10 Allen, 366. But this rule applies only to drains absolutely necessary to the enjoyment of the property conveyed. If the party claiming the right to drain his own premises across the land of another can construct an equally beneficial drain on his own land, with reasonable labor and expense, the rule has no application. Id.

(m) Pyer v. Carter, 1 H. & N. 91-6; 26 Law J., Exch. 258. Hall v. Lund, and Chadwick v. Marsden, supra. See Hilliard on Torts, p. 111 n.

(n) Mansfield, Ç.J., Morris v. Edgington, 3 Taunt. 28. Pearson v. Spencer, 1 B. & S. 571. (0) Pollock, C.B., Glave v. Harding, 27 Law J., Exch. 292. Simmons v. Sines, 4 Keyes (N. Y.) 153. Sinyles v. Hastings, 22 N. Y. 217. Thomas v. Bertram, 4 Bush. (Ky.) 317. Pettingill v. Porter, 8 Allen 1. Bartlett v. Prescott, 41 N. H. 493. McTavish v. Carroll, 7 Md. 352. Collins v. Prentice, 15 Conn. 39. Marshall v. Trumbull, 28 Conn. 183. Brice v. Randall, 7 Gill & J. 349. Kimball v. Cocheco R. R., 7 Fost. 449.

sary for the beneficial use and occupation of a tenement, and there are other convenient means of access, a right of way will not pass under the word "appurtenances"(p). And if adjoining houses, held under the same landlord, are sold subject to all subsisting rights of way and water, a mere permissive user of a way or of water from a well will not thereby be converted into a legal right(q).

By the French law, if the proprietor of two heritages between which there exists an apparent sign of servitude disposes of one of the heritages, without making any stipulation in the conveyance respecting the servitude, it continues to exist, actively or passively, in favor of the heritage alienated or upon it(r). And by apparent signs of an easement or servitude 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(s). 119 Privileges and servitudes which pass as accessorial to the use and enjoyment of the principal thing granted-Omne accessorium sequitur suum principale. In accordance with the maxim, "Quando aliquis aliquid concedit, concedere videter et id, sine quo res concessa uti non potest," it has been held that by the grant of the use of a pump the grantee has a right to enter upon the grantor's land to repair the pump, although neither the soil itself nor the pump on which it stands be granted to him; and that if a man gives me a license under seal to lay pipes of lead in his land to convey water to my cistern, I may afterwards enter and dig the land to mend the pipes, though the soil belongs to another, and not to me(t). If one grants his trees, the grantee may enter upon his land for the cutting down and carrying them away. And if a growing crop of grass is sold to be cut down. and made into hay when it arrives at maturity, the purchaser has a right by implication of law to make the grass into hay on the land(u). If a landowner has granted to another a right to dig coal-pits in his

(p) Pheysey v. Vicary, 16 M. & W. 484. Dodd v. Burchall, 1 H. & C. 113. 31 Law J., Exch. 364. Wardle v. Brocklehurst, ut sup. McDonald v. Lindall, 3 Rawle 492. Viall v. Carpenter, 14 Gray (Mass.) 126. Leonard v. Leonard, 2 Allen (Mass.) 543. Ogden v. Grove, 38 Penn St. 487. Seabrook v. King, 1 Nott & McC. 140. Trask v. Patterson, 29 Me. 499. Hall v. McLeod, 2 Met. (Ky.) 98. Gazetty v. Bethune, 14 Mass. 49. Grant v. Chase, 17 Mass. 443. Hyde v. Jamaica, 27 Vermont, 443.

(q) Daniel v. Anderson, 31 Law J., Ch. 610. Russell v. Harford, L. R., 2 Eq. Ca. 507. French v. Morris, 101 Mass. 68.

(r) Cod. Civ. art. 694.

See

(8) Pyer v. Carter, 1 H. & N. 922. As to this case see 33 Law J., Ch. 259; L. R., 6 Eq. Ca. 253. As to the rule in New York see Butterworth v. Crawford, 46 N. Y. 349.

(t) Pomfret v. Ricroft, 1 Saund. 322c, 323. Liford's case, 11 Co. 52a. See Prescott v. White, 21 Pick. 341; Prescott v. Williams, 5 Met. 429; Doane v. Badger, 12 Mass. 65, 70; Williams v. Safford, 7 Barb. (N. Y.) 309; Gillis v. Nelson, 16 La. An. 279; Frailey v. Waters, 7 Penn, St. 221. (2) 1 Roll. Abr.; DISMES X., pl. 23.