
    *Hardy v. McCullough & als.
    
    March Term, 1873,
    Richmond.
    i. Case at Bar — Wharves.—S. and others were the owners of two wharves and a small dock between them, fronting- on Elizabeth river at Norfolk; which dock was used in connection with both wharves. In 1851 they sold to W. the eastern wharf with its appurtenances, with general warranty, making the logging on the west line of the dock the boundary; and in their deed they covenant to allow W. to have the common nse with themselves or their tenants of the said dock for the purpose of landing goods on his wharf from vessels or boats which may enter therein, as long as the said dock and adjoining premises are owned hy them, or until they may choose to fill np the dock. W. In consideration thereof, hereby undertaking to clean out from time to time, the said dock at his own expense. In March 1851 they sell the other wharf and the dock to B. Held :
    1. Same — Easements—Implication of Law. — If there had been no special covenant for the nse of the dock by W. the right to nse it in connection with and for the benefit of the wharf, as it had been openly used by the grantors, would have passed to the grantee by implication of law, as an easement, or as part of the property granted.
    2. Same — Same—Express Contract. — But in the face of the express contract for the nse of the dock, no implication or presumption of law in favor of a different or more extended use of the dock can arise.
    3. Same — Wharves—Held as Private Property. — The wharves were originally built out into Elizabeth river, and the tide ebbs and flows into the dock; but they are within the portwarden line, a line drawn along the channel of Elizabeth river, under an act of the General Assembly; and they were built so long since that no persons living have any knowledge of the time when they were built, and they have always been held as private property: Held;
    Same — Same — Title of Commonwealth — Waiver — Queere..—Quiere: If any title which the Commonwealth might at an earlier period have asserted to this dock, if not expressly surrendered, has not been, by an almost irresistible implication, waived and abandoned in favor of those claiming to be the owners thereof.
    2. Same — Same—Same—Same—Express Contract.—
    In the absence of any claim by the Commonwealth, and in the face of the apparent waiver and abandonment as aforesaid, W. and those claiming under him cannot rely upon that supposed title, in derogation of the express contract of W. to the contrary.
    In April 1851, and for some time prior thereto, John Southgate, Tazewell Taylor, and four other persons, were in possession of and claiming to be owners thereof, a lot of ground lying between the south line of what is now Nevison street, and Elizabeth river at Norfolk. This property included two wharfs and a small dock lying between them. These wharves lay within what is called the portwarden line, a line run by authority of an act of Assembly along the channel of Elizabeth river, upon which wharves were forbid to encroach. The bottom of the dock was below the tide. These wharves and dock had been built and had been held as private property, from a time before the memory of any men now living.
    By deed bearing date the 1st day of April 1851, '’'ohn Southgate, Tazewell Taylor and the other owners in consideration of the sum of $12,000, conveyed to Josiah Wills, one of these wharves with the ground from Nevison street; with appurtenances to the same belonging: the line separating it on the East from the other property owned by the grantors being described as follows: Beginning on South side of the street proposed to be opened and designated as Nevi-son street, at a point which extended Southerly, strikes the logging on the West side of the small dock owned by the parties of the first part; thence running Southerly álong the West side of said *dock and to the channel of Elizabeth river; thence Westerly along said channel &c. And by a subsequent clause of the deed the said parties of the first part “covenant to allow said Josiah Wills to 'have the common use, with themselves, or their tenants, of the dock herein first men■tioned, for the purpose of landing goods on his wharf from vessels or boats which may enter therein, as long as the said dock and adjoining premises are owned by the said parties of the first part, or until they may choose to fill up the said dock. The said Wills in consideration thereof, hereby undertaking to clean out, from time to time, the said dock at his own expense.”
    Wills went into possession of his wharf, and the dock was used by vessels discharging their freight and passengers on his wharf; and this continued to be done until the commencement of the late war. Wills died in 18SS, and the wharf passed through several successive owners, until it came into the possession of Thomas A. Hardy, who had purchased one, and leased the other, moiety thereof, and so held it, when the bill in this case was filed.
    By deed bearing date the 23d day of March 18S4, Southgate, Taylor and the other owners in consideration of the sum of $18,000 conveyed the other wharf and the dock to Ball, Santos and Mellen, calling for. the line described in their deed to Wills. This property was afterwards sold under a deed of trust given by subsequent purchasers to secure a part of the purchase money, and was purchased by John M. Southgate and Tazewell Taylor, to whom it was conveyed, and subsequently the same was leased to A. A. McCullough.
    In 1869 McCullough commenced to drive piles along the west line of the dock, to prevent its use by Hardy; and thereupon Hardy applied by bill to the judge of the Corporation court of Norfolk for an injunction to restrain *him; which was granted. In his original bill he claimed that under the conveyance to Wills, the owner of his wharf was entitled to the use of the dock as an easement appurtenant thereto, and which had been previously so used; and also that the covenant in the deed was under the statute to be construed as if it was made by or for the assigns of the respective parties; and therefore he was entitled to the use of the dock under the covenant. In an amended and supplemental bill he set up the further ground, that the dock extended below low-water mark, and was a part of Elizabeth river, a naviagble stream; and therefore he was entitled to the free use of it.
    McCullough, Taylor and the other owners answered, denying that the owners.of the Wills wharves had any right to the use of the dock, either on the ground of easement or under the covenant; but on the contrary any such right was expressly negatived by the covenant, which m'ust be taken as expressing the intention of the parties to the contract. As to the dock extending below low-water mark, that was true, but it was within the portwarden line, and had been held as private property for a period extending beyond the memory of an3r men living.
    The cause came on to be heard on the 31st of January 1870, when the court dissolved the injunction and dismissed the bill. Whereupon Hardy applied to this court for an appeal; which was allowed.
    Scarburgh, for the appellant.
    Milson, for the appellees.
    
      
       For monographic note on Basements, see end of case.
    
   BOUIBMN, J.,

delivered the opinion of •the court.

On the 1st day of April 1851, and many years prior thereto, John Southgate, Tazewell Taylor and others, *and those under whom they claimed, were the owners in fee simple of certain wharf property in the city of Norfolk on the waters of Elizabeth river, on the north side thereof. In this property and claimed by said owners as part thereof, is a small dock opening on the South into the main channel of Elizabeth river, and supplied by the waters thereof, extending back into the propert}*-aforesaid at right angles to said channel, or nearly so, and surrounded on the north, east and west by said property. There are wharves on that portion of the property fronting on the main channel of Elizabeth river, which however have been neglected, and also on the east and west sides of the dock aforesaid; and when all the property was owned by the said Southgate and others and their grantors this dock was used for the common benefit of the wharves. The tide ebbs and flows into the dock, and the whole of it is below low-water mark. The wharf property around the dock was also originally below low-water mark, and has been filled up by artificial means; but, when, or by whom does not appear.. No witness examined in the cause seems to have known or heard when the wharves and dock were first constructed; and as far back as the testimony reaches the dock appears to have been regarded and treated as well by the reputed owners as by the State and City authorities and others, as private property. The entire ■ dock is within and above the Port Wardens’ line; and as stated above, Southgate, Taylor and others, and their predecessors have always claimed to own it in fee simple as a private dock.

In this state of facts, on the 1st day of April 1851, John Southgate, Tazewell Taylor and wife and the other owners of the property aforesaid, by deed of that date, conveyed to Josiah Wills a portion of said wharf property particularly described in the deed. The Eastern ^boundary of the propertj'- sold is described as follows: viz: ‘ ‘Beginning on the south side of the street proposed to be opened and designated as Nivison street, at a point which extended southerly, strikes the logging on the west side of the small dock owned by the parties of the first part, thence running southerly along the west side of said dock and to the channel of Elizabeth river,” &c., &c. The boundary then extends westwardly along the channel of Elizabeth river, thence North to Nivison street, thence along Mvison street to the beginning; making the western side of the dock the eastern boundary of the property conveyed, and embracing no portion of the dock within its limits. The property within the limits aforesaid with its appurtenances, is conveyed to Wills, with general warranty, and no mention is made of the dock in the granting part of the deed, excepting to refer to it as the eastern boundary of the property sold, and to describe it as “owned by the parties of the first part. ’ ’

But immediately following the grant and warranty is a special covenant in the following words: “And the said parties of the first part hereby convenant to allow the said Josiah Wills to have the common use with themselves or their tenants of the dock herein first mentioned, for the purpose of landing goods on his wharf from vessels or boats which may enter therein, as long as the said dock and adjoining premises are owned by said parties of the first part, or until they may choose to fill up the said dock. The said Wills, in consideration thereof, hereby undertaking to clean out, from time to time, the said dock at his own expense. ”

On the 23 day of March 1854, Southgate, Taylor and others, grantors in the deed to Wills, ceased to own the residue of the property first mentioned, including said dock, having on that day sold and conveyed the same *to Robert M. Ball, A. E. Santos and John Mellen of the City of Norfolk, with general warranty, making the western side of said dock their eastern boundary, and thus embracing within the grant all the dock.

The appellant claims under the deed to Wills, the appellees under the deed to Ball, Santos and Melleai.

The appellant and those under whom he claims, seem to have enjoyed from the date of the deed to Wills, down to the date of the proceeding sought to be enjoined, the common use of the dock for the purpose of landing goods on their wharf, but not to charge dockage. The appellees had the same use of the dock, but also when they thought proper to charge it, received dock-age from all vessels entering the dock.

In February 1869 the appellee, McCullough, representing in his own right and as tenant the entire interest conveyed to Ball, Santos and Mellen, by the deed of the 23d of March 1854, commenced driving piles in said dock on the Western side thereof near the appellant’s wharf, with the purpose of erecting thereon a fence so as to exclude the appellant from the further use of the dock. The suit below was instituted to enjoin this proceeding of McCullough, the plaintiff claiming in his original bill under the deed of April 1, 1851, to Josiah Wills alone. The injunction was awarded. In the course of the proceeding amended bills were filed, in one of which the title of the original grantors, Southgate, Taylor and others, to the dock, was denied, and the right of the State thereto was asserted as part of Elizabeth river below low-water mark, and therefore a public highway open to all citizens of the State. On final hearing the injunction was dissolved and the bill dismissed with costs; and from that decree an appeal was taken by Hardy to this court.

*The first two errors assigned run into each other, and will be considered together. They are that the injunction instead of being dissolved, should have been perpetuated.

1. Because, “if the dock was the property of the grantors in the deed to Josiah Wills, then that deed passed to Wills the right to use it in connection with his wharf, by way of easement as parcel of the subject especially granted.”

• 2. Because, “The right to use the dock passed to Wills, also, upon the principle that where the owner of a heritage consisting of two parts, grants one of them, the grant will by implication pass all those continuous and apparent easements which have in fact been used by the owner during the unity of ownership and possession, though they have no legal existence as proper technical easements.”

In considering these propositions and their application to the case at bar, the general subject of easements and servitudes has been ably and elaborately discussed by the counsel on both sides, and the authorities on the questions carefully collected and examined; but as the same subject has been very recently investigated, (for the first time I believe,) by this court, in the case of Scott v. Beutel, reported supra 1, where the same authorities were reviewed, we will content ourselves by a reference to the law in such cases as there laid down by the court. It was a case coming within the class referred to in the second proposition of the appellant above stated; and Judge Christian delivering the unanimous opinion of court, said:

“The owner of two tenements who sells one and retains the other, may undoubtedly grant the right of drain or not to pass with the estate conveyed, or may reserve such right over the estate conveyed for the benefit *of the one retained as he pleases. It is generally a matter of contract; and must be determined by the contract of the parties. Where the intention of the parties is not expressed in terms, the construction of the contract will depend on the facts of each particular case.

“In certain cases, by implication of law, where the owner of two tenements has so arranged them that ' one derives a benefit from the other, and sells one of them, the purchaser of the tenement takes it with all the benefits and burdens which appear at the time of sale to belong to it, as between it and the property which the vendor retains. The parties are presumed to contract in reference to the condition of the property at the time of sale. Washburne on Easements, 2d ed. p. 76, (Marg. 49). But whether the estate sold be the dominant or servient estate, it is well settled (by numerous cases in England and in the States of the Union) that the easement or other incident of property in order to pass by implication must be open, visible, apparent and continuous; and it seems to be equally well settled that where the servient estate is granted and the dominant reserved, the easement reserved by implication must be, not only one that is apparent and continuous and such as is indicated bjr the condition of the premises at the time of the sale, but the easement claimed must be one strictly of necessity, so that another cannot be substituted at a reasonable expense. ’ ’ Washburne on Easements, 2d Ed. 71-8, and cases there cited; 10 Allen R. 366; 7 Allen R. 369; 2 Metc. R. 234; 2 Cush. R. 327; 31 Law J. ch. 610; 2 Eq. Cases 508; 33 L. J. ch. 249; and Russell v. Harford, L. 2 Eq. 507; Scott v. Beutel, supra 1.

We have thus stated the conclusions of this court, in the case of Scott v. Beutel, at greater length, perhaps, than is necessary in the present case. We stand *from that decision, that the question whether an easement or servitude will be created, or pass as incident to or part of the property granted, is a matter of contract, and must of course depend on the intention of the parties, as expressed in the contract. If thus expressed, the terms of the contract must control its construction. When not thus expressed, the construction will be controlled by the use and condition of the property at the time of sale, and certain implications or presumptions of law arising thereon. But these implications or presumptions will only be applied in the absence of an express contract on the subject between the parties. Where there is such contract, the case must be governed by it ‘ ‘upon the ground of convention, between those who have a disposing power. ’ ’

To apply this law to the case before us, had the deed to Mills, under which the appellant claims, conveyed the wharf property, with its appurtenances, to Wills, with general warranty, with no reference to the terms and conditions on which he was to use the dock, we are of opinion on the facts proved in the cause, that the right to use the dock in connection with and for the benefit of the wharf, as it had been openly used by the grantors, would have passed to the grantee by implication of law as an easement, or as par,t of the property granted.

But, such is not the case. There is no absence here of an express contract between the parties on the very question; and there is, therefore, no room for implication or presumption. The case stands “upon the ground of convention between those who have a disposing power.” And about the terms and effect of that “convention” there is, we think, no room for discussion. After making the western side of the dock the eastern boundary of the property conveyed, which included no part of the dock, the. parties, to preclude, apparently, the *very argument of implication and presumption now used, go on to say:

“And the said parties of the first part hereby covenant to allow the said Josiah Wills to have the common use with themselves or their tenants of the dock, herein first mentioned, for the -purpose of landing goods on his wharf from vessels or boats which may enter therein, as long as the said dock and adjoining premises are owned by the parties of the first part, or until they may choose to fill up the said dock.” And this' qualified privilege of using the dock was allowed to the grantee, not in consideration of the purchase money paid for the wharf property and as part of the grant, but in consideration of the following stipulation expressly entered into on the part of said Wills, viz: “The said Wills, in consideration thereof, hereby undertaking to clean out, from time to time, the said dock, at his own expense.” The grantee is not only confined by the “convention’.’ of the parties to a very restricted use of the dock, but he is made to pay for that limited use a consideration outside the consideration for the property. In the face of such express contract the court is of opinion that no implication or presumption of law in favor of a different and more extended use of the dock can arise. This conclusion is in direct accordance with the general doctrine of this court, in Scott v. Beutel, and is not in conflict with the cases referred to by the counsel for the appellant. Indeed those cases lead to the same result. They establish the principle, that whether the property or easement claimed will pass or not depends “upon the intention of the parties collected from the instrument and explained by reference to the facts:” Being, in substance, the principle laid down by this court, in Scott v. Beutel. In one of the cases, United States v. Appleton, 1 Summer R. 492, S02, Judge story says: “The general rule of law is, that where a house or store is conveyed by the owner ^thereof, everjr thing belonging to and in use for the house or store as an incident or appurtenant, passes by the grant. It is implied from the nature of the grant, unless it contains some restrictions, that the grantee shall possess the house in the same manner, and with the same beneficial rights, as were then in use and belonged to it. ’ ’ If, on the other hand, the grant does contain restrictions, the irresistible conclusion from the cases is, that the case must be ruled by the express restrictions — -by the convention of the parties.

We are of opinion, therefore, that by the grant to Wills, in this case, no general right to the use of the dock, as the grantors had used it, passed to him; that the extent of his right under the grant was limited and defined by the express terms of special covenant, and that the right to use it at all, would wholly cease whenever his grantors should cease to own the dock and other property of which it was claimed to be part, or when they should think proper to fill it up.

But it is further contended, that the dock is not private property at all, but that it is a part of Elizabeth river, below low-water mark; and is, therefore, the property of the State and a public highway. It will be observed that this claim is not preferred by the State herself, or by any one claiming under her by grant or otherwise. Neither the State, nor the city of Norfolk, nor the citizens of either, save the appellant alone, seem to have ever at any time set up such a pretension. On the contrary, the State, the city of Norfolk, and the citizens of each, have uniformly treated them as private property, from a time whereof the memory of men now living runneth not to the contrary. As far back as October 1705, in the 4th year of Queen Anne, it was enacted that “if any person having a lott in town, upon the water side, will build out into the water before his own lott, *for the better conveniency of landing and shipping off goods, such persons shall have the whole benefit of such building; and the land so built upon shall be reckoned as part of his own lott, and it shall entirely be his as the lott itself, without any further duty or acknowledgment.” 3 Hen. Stat. at L., p. 412, ch. 42. By the same law, Norfolk was made a town. P. 415. How soon after the passage of this law the wharves referred to in the proceedings were constructed does not appear; for, as we have seen, no living witness can testify to their origin. Manifestly, however, either under the operation of this law, or some other law or custom recognized by the State, wharves and docks had been constructed in Norfolk long before the year 1801, which -were recognized by the State as private property; for, on the 20th January 1801, an act was passed which recited that there were docks and wharves within the borough of Norfolk, which had or might become ruinous and dangerous to the health of the inhabitants; for the prevention whereof the 1st section of the act provided: “That the court of hustings of the said borough shall be and they are hereby empowered, at a court to be held in February or March annually to appoint three discreet persons, being housekeepers, as wardens of the port, for the purpose of inspecting the said docks and wharves, who shall take an oath in the said court faithfully and impartially to execute the said office; and if they, or any two of them, shall be of opinion that any dock or wharf is a nuisance, they shall immediately give notice in writing to the owner thereof, requiring him or her to remove such nuisance, either by deepening the place or filling it up, allowing a reasonable time for performing the same.” And the section goes on to provide, that for failure to comply with the portwardens’ direction, the party shall be punished by indictment and fine.

*The 2d section provided, that if the fine should prove insufficient to remove the nuisance, “and the owner of the place shall not contribute to remove it, like proceedings against him shall be repeated.

The 3d section recites that “owners of lots on the rivers and creeks are constantly extending their wharves and breastworks beyond each other, whereby navigation is greatly obstructed, ’ ’ and requires the port-wardens to run a line in the water from the east to the west end of said borough, and also on each side of the creeks, so as to leave a pass-way of 40 feet at least beyond which no wharf should be extended, under a penalty of $10,000. 2 Hen. Stat. at Lar., New Series, ch. 48, p. 282-3. And the 2d section of the act of February 4th, 1818, entitled “an act to extend the jurisdiction and enlarge the powers of the corporation of the borough of Norfolk,” authorizes the corporation, among other things, to provide for the “opening, filling and cleaning docks. ”

Under and by virtue of these laws the vendors of Southgate, Taylor and others, were as owners of the dock in question, actually ordered by the proper authorities of the corporation, soon after their purchase of the dock, to fill up a portion thereof; and under that order they filled up about fifty feet of it.

It will be remembered, also, that the port-warden’s line does not run into this creek at all, as it is required to be run into creeks, but runs along the main channel of Elizabeth river directly across the mouth of the dock, so as to leave the entire dock within the line.

In addition to all this, Wills and those claiming under him, have in the most solemn form, in the deed under which they claim the wharf property, acknowledged the dock to be private property, and to be owned by their grantors. This acknowledgment occurs both in the granting part of the deed and in the special covenant. *Under such circumstances the court is inclined to the opinion, that any title which the commonwealth may at an earlier period have been entitled to assert to this dock, if not expressly surrendered, has been by an almost irresistible implication, waived and abandoned in favor of those claiming to be owners thereof.

But, however that might be, were the commonwealth a party claiming the dock, we are clearly of opinion, in the absence of such claim, and in the face of the apparent waiver and abandonment aforesaid, that the appellant cannot rely upon that supposed title in derogation of the solemn acknowledgment and express contract of his grantor to the contrary.

The decree must be affirmed.

Decree affirmed.  