
    Baker v. Rice.
    
      Easement — Implied grant.
    
    Where one who is the owner of a body of land, during his occupancy of it, constructs a private way over one part of it to another as a means of egress and ingress to the latter from his home and also to the public highway, which way is apparent, continually used, and reasonably necessary to the use and enjoyment of the land to which the way is constructed, and, also, adds materially to its value, conveys by deeds of the same date, the part with the way to it to one of his children and the part with the way over it to another one of them each takes his part to be enjoyed with reference to the way as the same existed at the time of the division — the one with an implied grant of the way to it, and the other subject to such way as an easement therein.
    (Decided June 8, 1897.)
    On Error to the Circuit Court of Knox county.
    In this case the action below was commenced by the plaintiff, Druzilla Rice, against the defendant, Phillip Baker, to enjoin the latter from obstructing a private way she claimed over his premises to the public highway as incident to her own land. The defendant denied the right of the plaintiff. A temporary injunction was obtained at the commencement of the action, which, at the hearing on the merits, was made perpetual. The cause was appealed to the circuit court, where it was tried with the same result as in the common pleas. On the trial the court made a finding of the facts and its conclusions of law thereon. The findings and conclusions of law are as follows:
    
      
      First — That on the first day of April, 1867, Oliver Baker, father of the plaintiff and defendant, purchased of one Jacob Young, the one hundred and twenty acres of land described in plaintiff’s petition, and also a certain twenty acre tract, designated on the plat hereinafter mentioned as the M. Strang tract; that at the time of said purchase, said Oliver Baker, owned and was in ppssesson of a tract of land containing about one hundred and nineteen acres, lying immediately west of said one hundred and twenty acre tract, and also owned a tract of land containing about two hundi-ed and ten acres, lying immediately north of said one hundred and nineteen acre tract; that at the time said Oliver Baker purchased said one hundred and twenty acre tract from said Young, he, said Oliver Baker, resided and continued to reside on the said two hundred and ten acre tract until the eighth day of September, 1888, hereinafter mentioned.
    The following is a plat showing the relative locations of the three several tracts. The one hundred and twenty acre tract or plaintiff’s tract, is shown on the plat by the letter “A.” The one hundred and nineteen acre or defendant’s tract, is shown on the plat by the letter “B. ” The two hundred and ten acre tract, by the letter “C. ”
    
      Second — That immediately after said Oliver Baker purchased said one hundred and twenty acre tract and the said twenty acre tract from said Young, to-wit: During said year of 1867, he, said Oliver Baker, made and constructed a private road or way from where he resided in said two hundred and ten acre tract, in an easterly and south-easterly direction over a portion of said last named tract, and over the said one hundred and
    
      
      
    
    
      nineteen acre tract to the west line o± the said one hundred and twenty acre tract; that said way. was enclosed with a gate on the west side of said one hundred and nineteen acre tract; that shortly thereafter and prior to the said 8th day of September, 1888, said Oliver Baker, extended said private way westward to a public highway, known as the Oliver Baker road, which runs in a northerly and southerly direction through said two hundred and ten acre tract, a short distance west of said Oliver Baker's dwelling; that said private way 
      from the time so constructed, and up to the said 8th day of September, 1888, was used by Oliver Baker in passing to and from said one hundred and twenty acre tract, by foot or team, and generally in all such 'manner as ways are used, and that said way is plainly obvious and apparent, and is reasonably necessary for the use and enjoyment of plaintiff’s lands and adds materially to the value thereof.
    
      Third — That at the time said Oliver Baker purchased said one hundréd and twenty acre tract and the said twenty, acre tract from said Young, he, said Young, used as a means of egress and ingress from and to said one hundred and twenty acre tract, a certain lane known as the “Strang Lane,” which leads from the south-east corner of said one hundred and twenty acre tract, eastward to a public highway known as the “Snyder Road,” and that said lane was the only means of outlet said Young had to a public highway from said one hundred and twenty acre tract; that from the time said Oliver Baker purchased said tract from said Young and up to the time he conveyed the same to the plaintiff as hereinafter mentioned, to-wit: Up to the eighth day of September, 1888, the said “Strang- Lane,” was available to said Oliver Baker, and he did use the same as an outlet to the said public highway from said one hundred and twenty acre tract, without objection from the owner of the soil over which the said lane passed; and that plaintiff from the time said tract was so conveyed to her as aforesaid, has had, and still has the use of said “Strang Lane” as a means of an outlet to the said public highway, if she chooses to so use the same, without objection from the owner of the soil over which said lane passes, and that said lane is reasonably convenient for travel' whether by foot or team, and generally in such manner as ways are used.
    
      Fourth — That on or about the first day of September, 1888, said Oliver Baker had three children, to-wit: The plaintiff, defendant and Nancy Baker, for whom he desired to make provision by conveying said two hundred and ten acre tract, the one hundred and nineteen acre tract, the one hundred and twenty acre tract and the twenty acre tract; that on the first day of September, 1888, the said three children met at the house of the said Oliver Baker, and it was then agreed that said Oliver Baker should convey his homestead, the said two hundred and ten acre tract, to the defendant, Phillip Baker, and that said Phillip Baker should convey back to said Oliver Baker a life estate in the same; that said Oliver Baker should convey to said Nancy Baker, the said one hundred and nineteen acre tract, and also convey the one hundred and twenty acre tract and said other twenty acre tract to plaintiff; and that the said Nancy .Baker should convey to the said Phillip Baker, the said one hundred and nineteen acre bract, for the sum of $3,000, to be paid by said Phillip Baker to her; that pursuant to the agreement, thereafter to-wit: On the eighth day of September, 1888, the said Oliver Baker executed his deed for said two hundred and ten acre tract bo the defendant, Phillip Baker, with general covenants and warranty and against encumbrances, and he, said Phillip Baker, executed his deed to said Oliver Baker for a life estate in said last named tract; that at the same time said Oliver Baker executed his general warranty deed with covenants against encumbrances to the said Nancy Baker for the said one hundred and nineteen acre tract, and at the same time she, said Nancy Baker, executed her deed with covenants of general warranty and against encumbrances to the said Phillip Baker for said tract; and- he thereupon executed a mortgage deed back to said Nancy Baker, upon said premises, to secure the payment of the said sum of $3,000; that the said Oliver Baker, also executed his deed for said one hundred and twenty acre tract and the said twenty acre tract to the plaintiff, Druzilla Rice.
    No mention was made in any of the deeds of the way in controversy; but the granting clause of Oliver Baber’s deed to plaintiff contains, after the description, the usual words, “with all the privileges and appurtenances thereto belonging;” that all the parties had full knowledge of the construction and use of said way by said Oliver Baker.
    
      Fifth — That the defendant, to-wit: On the 22nd day of August, 1894, obstructed said way in controversy by locking and securely fastening a gate which stands across said wajr, at the west side of said one hundred and nineteen acre tract as aforesaid, and that defendant still continues said obstruction.
    As its conclusions of law the court finds as follows:
    1st. That the way in controversy is nofc a way of necessity.
    2d. That said way is and was at the time of the execution of the deed to plaintiff by Oliver Baker of a continuous character and an appurtenant belonging to the lands of plaintiff; and as such passed by the general words of said deed granting all privileges and appurtenances thereto belonging; and that plaintiff is, by virtue of said deed, the owner of said right-of-way, and is entitled to the use of the same.
    3d. That said Nancy Baker took said one hundred and nineteen acre tract subject to plaintiff’s right of way over the same.
    4th. And for a like reason said Phillip Baker took said two hundred and ten acre tract subject to the right of the plaintiff to said way over the same; and for like reason, said Phillip Baker, took said one hundred and nineteen acre tract, subject to plaintiff’s said right-of-way over the same.
    5th. That defendant’s obstruction is wrongful and unlawful.
    Error is prosecuted here to reverse the judgment on the ground that the court erred in its conclusions of law.
    
      G. E. Oritchfleld and Critchfield & Graham, for plaintiff in error.
    Strictly speaking, a wajr, even of necessity, does ■not pass as an appurtenance to the dominant estate. It is in such eases, an implied grant of the right of the grantee to pass over the land of the grantor and nob a grant of any particular way, and this right ceases as soon as the necessity ceases. Nichols v. luce, 24 Pick, 102; Ins. Go. v. Wiliscn, 1 Barb. Ch., 353; Bass v. Edwards, 126 Mass., 445.
    A man cannot have an easement in his ownlands. There must be two estates, in regard to which it is predicated, and if the same persons own both, the easement is extinguished. Wash, on Real Prop., Fifth Ed., vol. 2, p. 314.
    There are, however, what are called quasi easements, “as when the owner of land has constructed a way or drain over a portion of it for the benefit of another portion and there has never been a separate ownership of a dominant and servient estate.” Parsons v Johnson, 68 N. Y.,66 ; Gale on Easements, 4th ed., 22; Washburn on Easements, 4th ed., 166; Fetters v. Humphreys, 19 N. J. Eq., 471; Fritz v. Tompkins, Supreme Court of New* York at Special Term, November 24, 1896, and reported in the New York Supplement of the National Reporter System, page 985; Francis Appeal, 96 Pa. St., 207; Pearson v. Spencer; 1st. B. & S., 582.
    A way of necessity is held to pass by implication, for the reason that the parties are presumed to have intended that the grantee should have possession and use of the thing conveyed so far as necessary to the enjoyment of what was conveyed, although not expressly named in the deed. Goddard on Easements, Fourth Ed., 317.
    Does a like presumption arise in respect to a way not of necessity, if forsooth it has long been used, is obvious and apparent and convenient as a means of access to the premises granted ? Pyer v. Harter, 1 Hurl. & N., 91 Q-,La,mpham v. Miller, 21 N. Y., 505.
    While the decision as applied to the facts in Pyer v. Harter, has been approved by some courts, the general rule there laid down, is denied both in England and in this, county. It was expressly overruled in White v. Pass, 7 Hurlst & N., 722; and denied in Suffielcl v. Brown, 4 De., G. J. & S., 185.' And this' is now the settled law in England. Grossly v. Lighteloxoler, L. R. 2 Ch., 478; Pearsonv. Spencer 3 Best. & S., 761; Warren v. Blake, 54 Me., 287; Buss v. Dyer, 125 Mass., 291; Adams v. Marshall, 138 Mass., 228.
    The general rule announced in the case of Lamp-ham v. Milks (21 N. Y., 505), was limited to the cases of continuous easement and such non-continuous easements as are strictly necessary. Dodcl v. Bur chill, 1 H. & C., 113; Bolton v. Bolton, 11 Ch. Div., 96; Walley v. Thompson, 1 Bos. & P., 371; Barlow v. Rhodes, Crompt. & M., 447; Worthington v. Gimpson, 29 C. J. Q., 116; Sheyseyv. Nicery, 16 M. & W., 484; Thompson v. Waterlozo, Law. Rep., 6 Eq. Cas. 36, and Langley v.'LLammon, Law Rep., 3'Exeh., 161.
    The American cases are quite as uniform and pronounced against the doctrine of implied grants of ways, other than ways of necessity, Washburn in his work on Real Property, vol. 2, 319, Nichols v. Luce, 24 Pick., 102; Carbrey v. Willis, 7 Allen 370; Ins. Co. v. Milnor, 1 Barb. Ch., 353.
    In the present case the court found as conclusions of law that the defendant in error is, by virtue of the deed of Oliver Baker, the ozoner of the way in controversy. HziMemeier v. Albro, 18 N. Y., 49; Schryrner v. Phelps, 62 How. Pr., 1; Serene v. Gregory, 8 Rich., 158; Trumbull v. Rivers, 3 McCord, 131; Warren v. Blake 54, Me., 276; Woosenv. Daniel, 116 Mo., 379; Field v. Mark, 125 Mo., 502; Wentzoorth v. Phillpot, 60 N. H., 193; 69 Me., 323; Dolliff v. N N. Co., 68 Me., 173;Kingsley v. Goz,tldborough, 86Me.,279; Bzirns v. Gallagher, 62Md.,462.
    The only ease in Ohio directly bearing upon the questions is Bailey v. Copeland, Wright’s Rep. 150. It was there held that in prescribing for a way of necessity, the case must show that the necessity for it exists; that such way does not result from necessity when the grantee has means of access to the premises granted other than by the way claimed.
    
      Critchfleld cl Devin, for defendant in error.
    Perhaps no subject known to the law has been productive of so much litigation and so many conflicting decision^ both in the United States and England as that of easements, but the claims of defendant in error clearly seems to be sustained by the great weight of both American and English authorities. Morgan y. Mason, 20 Ohio, 401; Ilazzard y. Robinson, 3 Mason, 279; Elliott y. Sallee, 14 Ohio St., 10; Meek y. Breekenridge, 29 Ohio St., 642; Shields y. Titus, 46 Ohio St., 528; National Exchange .Bank y. Cunningham, 46 Ohio St., 575.
    In none of the foregoing cases do the court limit the application of the doctrine to “continuous” easements as defined by counsel for plaintiff in error, or in the cases by them cited in support of their claims. In all of those cases continuous easements are said to be those which exist independently of any act of man, such as flowing water, the right to light, air, etc.; while those same authorities class all easements the enjoyment of which necessitates the act of man, as “non-continuous. ”
    In view of the foregoing from our own state it seems unnecessary to multiply authorities, but the following- also bear so directly upon the question that we feel justified in bringing them to the intention of the court. John Hancock Mutual Life Ins. Co. y. Patterson, 103 Ind., 582; Morrison y. King, 62 111., 31; Cihak y. IClehr, 117 111., 643; Kieffer v. Imhoff, 26 Penn. St., 438; Phillips y. Phillips, 48 Penn. St., 178; Penn. R. R. Co. y. Jones, 50 Penn. St., 417; McCarthy y. Kitchenman, 47 Penn. St., 239; Cannon v„ Boyd, 73 Penn. St., 179; Pnited States y. Appelton et al., 1 Sumner, 492; Jones y. Jenkins, 34 Md., 1; Payne y. Chandler, 134 N. Y., 385; Leonard y. Leonard, 7 Allen, 277; DonkleSY. Wilton Ry. Co., 24 N. H., 481; Tiedman on Real Property, section 842; Boone’s Real Property, section 140 et seq.; Washburn’s Real Property, 5 Eel. vol. 2, sections 10, 16; Washburn’s Real Property, 4 Ed. top pages 64 and 65, 70 and 71, 692, 297 and 698; Bowlancl v. St. John’s Schools, 163 Mass., 236; Cave v. Crofts, 53 Cal., 135; Washburn’s Real Property, page 317, section 9, vol. 2. Washburn on Easements, 4th Ed„, t. p. 692; Ballards’s Ohio Real Property, section 356; Boone’s Real Property, section 136 and 306, and many cases there cited. See also Washburn’s Real Property, 5th Ed., vol. 3, page 419; Wash-burn’s Easements, 4th Ed., t. p. 697. '■
    The cases most relied upon by counsel for plaintiff in error are those in which it was sought by the grantor to reserve an easement in his favor by implication. Comparatively few of these eases go to the point of holding that an easement for the benefit of the granted premises cannot be the subject of an implied grant. Most of that class of cases cited by opposite counsel make a distinction between an implied g’rant for the benefit of the g’rantee and an implied reservation imposing a servitude upon the granted premises in favor of the grantor. Wash-burn on Easements, 4th Ed., page 110; Payne v. Chandler, 134 N. Y., 385. ,
   Minshall, J.

Did the court err in its conclusion of law that the way over the defendant’s land passed as an incident to the lands of the plaintiff b3r the deed of her father? We think it did not.

It is true that at the same time the father conveyed to the plaintiff, he, through his daughter Nancy, conveyed to the defendant the land now owned by him; and if we were to consider this conveyance alone, the way in question would appear as a reservation by the father of a way over the granted lands in opposition to the covenants of his deed. Whether such a reservation could be. made bjr implication in derogation of the grant and the covenants of the deed need not be considered in this case. Both the plaintiff and the defendants must, from the facts found, be regarded as grantees of the father by deeds taking effect at one and the same time. And, therefore, neither has as against the other any superior right by reason of priority of purchase; and both were volunteers. Oliver Baker was the owner of both tracts and of two 'hundred and ten acres where he resided at the time of the conveyances. All the lands lay in a body, and had been acquired by him at different times during his life. He purchased the lands deeded the plaintiff in 1867; and, in- that .year, constructed the way in question from the lands then purchased over the one hundred and nineteen acre tract, to his residence on the two hundred and ten acre tract and shortly afterwards to the public highway. And the court finds, that from that time to 1888, when the division was made, Oliver Baker used the way in passing to and from the lands purchased in 1867, for all the purposes ways are generally used, and that the “way is plainly obvious and apparent, and is reasonably necessary for the use and enjoyment of plaintiff’s land and adds materially to the value thereof.” In 1888, desiring to divide his heritage between his three children,'he conveyed the one hundred and twenty acre tract acquired in 1867, to the plaintiff, the one hundred and nineteen acre tract to his son, the defendant, subject to the payment of $3,000 to his daughter, Nancy, and also the home tract of two hundred and ten acres, reserving a life estate therein to himself. The way in question was then in use over and upon the one hundred and nineteen acre tract given the defendant, and materially added to the value of the land given the plaintiff.

We think the law well settled in this state, whatever the decisions may be in some of the others, and they are far from being in harmony, that where an estate is divided as was this one, each takes his part subject to or benefitted by such burthens as were openly and plainly attached to or imposed on it by the common owner in his use and enjoyment of the land at the time of the severance, and which on a severance would properly be termed easements or servitudes. Ignoring for the time the distinction between “continuing” and “discontinuing” easements, observed in some of the cases, the case of Elliott v. Sallee is directly in point. Edward Thompson was the owner of three mills on White Oak creek in Brown county. The lower mill was in part supplied with water by a tunnel constructed across the neck of a bend in the creek, so as to take the water from the creek above the dam of the middle mill, and was thereby, to that extent, servient to the lower mill. By deeds executed at the same time he divided these mills between his three sons, so as to give one of them to each. The plaintiff by purchase became the owner of the middle mill, and brought suit against the defendant, who had purchased the lower mill to recover for the diversion of the water from his mill by the tunnel. The court said: “On this state of facts it seems clear to us on every principle of reason and common sense that he (Edward Thompson) must have intended to grant to his sons respectively, and they must have expected to receive, each his mill with its appurtenances as it actually existed in fact and in use at the time of the conveyances — no more and no less; and this obvious intention on the part of the grantor, and reasonable expectation on the part of the grantees, furnish the exact measure of the rights of the grantees inter se, and of all parties holding under them respectively.” The court referred to and approved Morgan v. Mason, 20 Ohio R., 401. See, also, the case of Meek v. Breckenridge, 29 Ohio St., 642, where it is said, “A grant of a thing will include whatever the grantor has power to convey which is reasonably necessary to the thing’ granted;” or, as said by Justice Story in Hazard v. Robinson, 3 Mason, 279, ‘ ‘Whatever is actually enjoyed with the thing granted as a beneficial privilege at the time of the grant passes as parcel of it.” See also, the later ease of Shields v. Titus, 46 Ohio St., 528; and Bank v. Cunningham, Id. 575. In the latter case it is said, in the syllabus, “When the owner of an estate makes one part of it visibly dependent for the means of access upon another and creates a way for its benefit over another, and then grants the dependent part, the other part becomes subservient thereto, and the way constitutes an easement appurtenant to the estate granted .and passes to the grantee as accessorial to the beneficial use and enjoyment of the granted premises.” This case is supported in the latitude of its expression by many cases in other states. Mutual Life Ins. Co. v. Patterson, 103 Ind., 582; Morrison v. King, 62 Ills., 30; Cihak v. Klekr, 117 Ills., 643; Kieffer v. Imhoff, 26 Penna. St., 438; Phillips v. Phillips, 48 Id., 178; Railway Co. v. Jones, 50 Id., 417; McCarty v. Kitchenman, 47 Id., 239; Cannon v. Boyd, 73 Id., 179; U. S. v. Appleton, 1 Sum., 492; Paine v. Chandler, 134 N. Y., 385; Collins v. Prentice, 15 Conn., 39-43.

But it is claimed that only such easements as are termed “continuous” will pass by implication in a grant, and that such as are termed “discontinuous” will not. This is a distinction of the civil law, and has been incorporated in the law of some of the states, particlarly Maine and Massachusetts. The former are such as operate without the intervention of man, such as drains and sewers; the latter require the intervention of man in their use, such as ways. The distinction is. somewhat arbitrary and is not uniformly adopted, as will appear from the eases cited. The better rule, and the one now more generally adopted, is, not to consider the particular kind of easement, but whether it is apparent, designed to be permanent, and is reasonably necessary to the use of the premises granted. See the eases of Kieffer v. Imhoff, Phillips v. Phillips, Cannon v. Boyd, U. S. v. Appleton, Paine v. Chandler, Mutual Life Ins. Co. v. Patterson, supra. In Phillips v. Phillips, it is said “It may be granted that the continuance of drains, water pipes and mill-races may more distinctly indicate their permanent and essential nature than a private way.' but when the permanency of the way is proved, confessed, or not disputed, the difference vanishes; they stand upon the same footing.” In Paine v. Chandler, the court, after laying down the general rule, said; “The learned counsel for the appellant does not attack the principle, but his contention is, that the easement involved in this controversy is of the class known as ‘discontinuous’ and such an easement passes by implication only when absolutely necessary to the enjoyment of the property conveyed. To use his own language, ‘the rule contended for has been confined to cases where the easement was something without the use of which the premises would be practically worthless.’ The rule is not confined in its applications to continuous easements, but applies to those artificial arrangements which openly exist and affect materially the value of the respective parts at the time of the sale.”

The case of Prarieis’s Appeal, 96 Penn. St., 200, to which our attention has been called, has been carefully examined, but we do not think that it in any way affects or modifies the previous decisions of that court. Prom the finding- made by the master as to the nature and character of the uses there claimed as easements, on a severance of the properties, he could not well have held otherwise than, he did.

Much importance is attached to the conclusion of law drawn by the court from the finding of facts, that the way in question is not a way of necessity. There is some room for doubt as to whether this conclusion from the facts found, was well drawn. But • conceding that it is, still the authorities cited show, that in the case of a grant, this is not material where the way in question is reasonably necessary to the enjoyment of the land granted, and materially adds to its value. Phillips v. Phillips, 48 Penn. St., 178,

Judgment affirmed.  