UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
LIBRARY
THE LAW
OF
T
REAL PROPERTY
AND
OTHHK INTHRHSTS I\ LAND
BY HERBERT THORNDIKE TIFFANY
Author of "The Law of Landlord and Tenant."
ENLARGED EDITION
IX THREE VOLUMES
VOLUME II
cni(:.\(;c)
CALLAGHAN AND COMPANY
1920
T
T4473<e
1^^
COPYRIGHT 1920
BY
HERBERT THORNDIKE TIFFANY.
TABLE OF CONTENTS
CHAPTEE XII.
EASEMENTS.
I. The Natube and Classes of Easements.
§ 348. Nature of an easement.
349. Licenses.
(a) General considerations.
(b) No formality necessary.
(c) Scope of license.
(d) Revocability of license.
(e) Mode of revocation.
(f) Termination otherwise than by revocation.
(g) Effect of termination,
(h) Assignment of license.
§ 350. Easements in gross and appurtenant.
351. Light and air.
352. Waters and water courses.
353. Artificial water courses and drains.
354. Support of land.
355. Support of buildings.
356. Party walls.
357. Partition fences.
358. Rights of way.
359. Pews and burial rights.
360. Miscellaneous easements.
II. The Ckeatton of Easements.
§ 301. Express grant.
3.02. Express reservation or exception.
363. "Implied" grant or reservation.
(a) General considerations.
(b) Of easement corresponding to pre-existing
quasi easement.
(c) Of easement of necessity.
§ 364. Prescription.
365. Acquisition under statute.
366. Estoppel.
(V)
77B92J
VI
Real Peopekty.
(a) By reference to non-existent way.
(b) By reference to plat.
(c) By representation or acquiescence.
III. Rights of User.
§ 367. Easements created by grant.
368. Easements created by prescription.
369. Effect of change in dominant tenement.
370. Alterations and repairs.
371. Interference with user.
IV. Extinction of Easements.
§ 372. Cessation of purpose of easement.
373. Excessive user of land.
374. Unity of possession or title.
375. Application of land to public use.
376. Express release.
377. Abandonment.
378. Executed license.
379. Adverse user of land.
380. In favor of innocent purchasers.
CHAPTER XIII.
381
382
OOO
384
385
386
387
PROFITS A PRENDRE.
General considerations.
Rights in gross and appurtenant.
Rights of common.
Rights of pasture.
Mineral rights.
The creation of rights.
Apportionment and extinction.
CHAPTER XIV.
§ 388
389
390
391
392
QQO
COVENANTS RUNNING WITH THE LAND.
General considerations.
The running of benefits.
The running of burdens.
Privity of estate.
The nature of the covenant.
Party wall agreements.
Table of Contents. vii
CHAPTER XV.
RESTRICTIONS ENFORCEABLE IX EQUITY.
§ 394. General considerations.
395. Character of agreement.
396. Theory of enforcement.
3S7. Persons subject to restriction.
398. Notice.
399. Persons entitled to enforce restriction.
400. Existence of general plan.
401. Defenses to enforcement.
CHAPTER XVI.
RENT.
402. The nature of rent.
403. What may be reserved as rent.
404. Classes of rents.
405. Payments which are not properly rent.
406. The reservation of rent.
407. Transfer of rights and liabilities.
408. Death of person entitled.
409. Time at which rent is due.
410. Apportionment as to time.
411. Amount of the rent.
412. Apportionment as to amount.
413. Extinction or suspension of rent.
414. Actions for rent
415. Distress for rent.
416. Lien for rent.
CHAPTER XVII.
PUBLIC RIGHT'S.
§ 417. Highways.
418. Parks, squares and commons.
419. Customary rights.
420. Rights of fishing.
421. Rights of navigation.
viii Beal Property.
Part Five.
the tkansfer of rights in land.
CHAPTER XVIII.
TRANSFER BY THE GOVERNMENT.
§ 422. The nature of the government title.
423. Grants by the United States.
424. Grants by the States.
425. Spanish and Mexican grants.
426. Patents.
CHAPTER XIX.
VOLUNTARY TRANSFER INTER VIVOS.
I. Classes of Conveyances.
§ 427. Conveyances at common law.
428. Conveyances operating under the Statute of Uses.
429. Conveyances employed in the United States.
430. Quitclaim deeds.
431. Surrender.
432. Conveyances failing to take effect in the manner
tended.
II. Form And Essentials Of A Conveyance. ^
§ 433. General considerations.
434. Designation of the parties.
435. Words of conveyance.
436. Exceptions and reservations.
437. Rules of construction.
438. Consideration.
439. Realty of consent.
440. Effect of alterations.
III. Description Of The Land.
§ 441. General considerations.
442. Description by government survey.
443. Reference to plat.
444. Monuments, courses, and distances.
445. Boundaries on water.
446. Boundaries on ways.
Table of Contents. ix
§ 447. Sufficiency of description.
448. Appurtenances.
IV. Covenants For Title.
§ 449. General considerations.
450. Covenant for seisin.
451. Covenant for right to convey.
452. Covenant against incumbrances.
453. Covenants for quiet enjoyment and of warranty
454. Covenant for further assurance.
455. The measure of damages.
456. Covenants running with the land.
V. ExECUTiox OF The Conveyance.
§ 457. Signing.
458. Sealing.
459. Witnesses.
460. Acknowledgment.
461. Delivery.
462. Conditional delivery.
463. Acceptance.
464. Execution by agent.
465. Effect of execution — Subsequent cancellation or return.
CHAPTER XX.
TRANSFER BY WILL.
466. General considerations.
467. Will and conveyance distinguished.
468. Signing by testator.
469. Acknowledgment and publication.
470. Competency of witnesses.
471. Attestation and subscription.
472. Holographic and nuncupative wills.
473. Undue influence.
474. Lapsed and void devises.
475. The revocation of a will.
476. Children or issue omitted from will.
477. Revival of will.
478. Republication.
Real Peopeety.
CHAPTER XXI.
DEDICATION.
479. Purposes for which dedication may be made.
480. No particular beneficiary or beneficiaries.
481. Who may effect dedication.
482. Intention to dedicate.
483. Acceptance.
484. Dedication distinguished from estoppel.
485. Qualified and conditional dedication.
486. Effect of dedication.
CHAPTER XXII.
INTESTATE SUCCESSION.
487. General considerations.
488. Descent to issue.
489. Surviving consort as heir.
490. Parent as heir.
491. Descent to collateral kindred.
492. Kindred of the half blood.
493. Representation.
494. Ancestral lands.
495. Illegitimate children.
496. Unborn children.
497. Adopted children.
498. Advancements.
499. Disinheritance.
CHAPTER XXIII.
ADVERSE POSSESSION OF LAND.
500. General considerations.
501. Actual and visible possession.
502. Exclusiveness of possession.
503. Hostility of possession.
504. Necessity of claim of title.
505. Mistake in locating boundary.
506. Necessity of right of action.
507. Interruption of running of statute.
Table of Contents. xi
§ 508. Tacking.
509. Personal disabilities.
510. Exception in favor of the sovereign.
511. Effect as vesting and divesting title.
512. Extent of possession.
513. Particular relations.
(a) Landlord and tenant.
(b) Trustee and cestui que trust.
(c) Licensor and licensee.
(d) Principal and agent.
(e) Grantor and grantee.
(f) Vendor and vendee.
(g) Life tenant and remainderman,
(h) Cotenants.
(i) Mortgagor and mortgagee.
(j) Mortgagor and foreclosure purchaser.
(k) Surviving spouse and heirs.
(1) Parent and child.
(m) Husband and wife.
CHAPTER XXIV.
PRESCRIPTION FOR INCORPOREAL THINGS.
514. General considerations.
515. Restrictions on application of doctrine.
516. Who may acquire right by prescription.
517. What rights may be acquired by prescription.
518. Actual user necessary.
519. Adverse character of user.
520. Necessity of claim of right.
521. Necessity of notice to landowner.
522. Necessity of exclusive user.
523. Necessity of peaceable user.
524. Necessity of right of action.
525. Continuity of user.
52C. Cessation of adverse character.
527. Interruption by landowner.
528. Protests and interference by landowner.
529. Tacking.
530. Personal disabilities.
531. Nature and extent of prescriptive right.
532. Reciprocal prescriptive rights.
533. Prescription for highways.
(a) General considerations.
xii Keal Property.
(b) User by public necessary.
(c) Adverseness of user.
(d) Necessity of claim of right.
(e) Necessity of notice of user.
(f) Continuity of user.
(g) Width of highway."
CHAPTER XXV.
ACCRETION.
534. General considerations.
535. As rule of law or rule of construction.
536. Applicable only to land above water.
537. Sudden and perceptible changes.
538. Accretion artificially produced.
539. Land appearing in place of land disappearing.
540. Accretions subject to existing incumbrances.
541. Vested right in future accretions.
542. Accretions to island.
543. Apportionment of accretions.
544. Formation of new islands.
CHAPTER XXVl.
ESTOPPEL.
§ 545. Assertion of after acquired title.
(a) General considerations.
(b) Character of conveyance.
(c) Necessity and character of covenants.
(d) Cases to which doctrine inapplicable.
(e) Persons bound by the estoppel.
§ 546. Estoppel by representation.
547. Improvements by oral grantee.
CHAPTER XXVII.
ESCHEAT AND FORFEITURE.
§ 548. Escheat.
549. Forfeiture.
Table of Contents. xiii
CHAPTER XXVIII.
TRANSFER UNDER JUDICIAL PROCESS OR DECREE.
§ 550. Sales and transfers under execution.
551. Sales in equity at the instance of creditors.
552. Sales of decedent's lands.
553. Sales of lands of infants and insane persons.
554. Sales and transfers for purpose of partition.
555. Decrees conferring title.
556. Adjudications of bankruptcy.
CHAPTER XXIX.
TRANSFER FOR NONPAYMENT OF TAXES.
§ 557. Character of title acquired.
558. Judgment for taxes.
559. Forfeiture to state.
560. Remedial legislation.
CHAPTER XXX.
APPROPRIATION UNDER EMINENT DOMAIN.
§ 561. The power to appropriate.
562. Rights subject to appropriation.
563. Mode of appropriation
564. Time of passing of title.
565. Cessation of public use.
CHAPTER XXXI.
PRIORITIES, NOTICE AND RECORDING.
566. Priorities apart from recording acts.
(a) As between legal interests.
(b) As between legal and equitable interests.
(c) As between equitable interests.
567. The recording acts.
xiv Real Proppzktv.
(a) General considerations.
(b) Instruments capable of record.
(c) Unauthorized record of instrument.
(d) Instruments not in chain of title.
(e) Instruments executed prior to acquisition of
title.
(f) Instruments executed after apparently part-
ing with title.
(g) Instruments recorded after parting with title,
(h) What constitutes recording.
(i) Time allowed for recording,
(j) Mistakes by recording officer,
(k) Index to records.
(1) Persons affected with notice by record,
(m) Persons entitled to assert failure to record.
§ 568. Notice as substitute for recording.
569. Information putting on inquiry.
570. Notice to agent.
571. Notice from possession.
(a) General considerations.
(b) Character of the possession.
(c) Possession consistent with record title.
(d) Cotenant in possession.
(e) Joint possession or occupation.
(f) Possession by tenant under lease.
(g) Continued possession by grantor.
§ 572. Notice from statements in instruments of title.
573. Actual and constructive notice.
574. Purchasers for value.
(a) Valuable consideration.
(b) Pre-existing debt.
(c) Adequacy of consideration.
(d) Notice before payment.
(e) Notice after part payment.
(f) Payment by note. <
(g) Payment without acquiring legal title.
§ 575. Purchasers with notice from purchasers without notice.
576. Purchasers without notice from purchasers with notice.
577. Purchasers at execution sales.
578. Burden of proof.
579. Lis pendens.
REAL PROPERTY
CHAPTER XII.
EASEMENTS.
I. The Nati-re and Classes of Easements.
§ 348. Nature of an easement.
349. Licenses.
(a) General considerations.
(b) No formality necessary.
(c) Scope of license.
(d) Revocability of license.
(e) Mode of revocation.
(f) Termination otherwise than by revocation.
(g) Effect of termination,
(h) Assignment of license.
§ 350. Easements in gross and appurtenant.
351. Light and air.
352. Waters and water courses.
353. Artificial water courses and drains.
354. Support of land.
355. Support of buildings.
356. Party walls.
S57. Partition fences.
358. Rights of way.
359. Pews and burial rights.
360. Miscellaneous easements.
II. The Creation of Easements.
§ 361. Express grant.
3C2. Express reservation or exception.
363. "Implied" grant or reservation.
(a) General considerations.
(b) Of easement corresponding to pre-existing
quasi easement.
(c) Of easement of necessity.
2R.P.-1 (11^')
1198 Heal. Property. [§ 348
§ 364. Prescription.
365. Acquisition under statute.
366. Estoppel.
(a) By reference to non-existent way.
(b) By reference to plat.
(c) By representation or acquiescence.
III. Rights of Useb.
§ 367. Easements created by grant.
308. Easements created by prescription.
309. Effect of change in dominant tenement.
370. Alterations and repairs.
371. Interference with user.
IV. Extinction of Easements.
§ 372. Cessation of purpose of easement.
373. Excessive user of land.
374. Unity of possession or title.
375. Application of land to public use.
376. Express release.
377. Abandonment.
378. Executed license.
3.79. Adverse user of land.
380. In favor of innocent purchasers.
I. The Nature and Classes of Easements.
§ 348. Nature of an easement. Aii easement in-
volves primarily the privilege of doing a certain class
of act on or to the detriment of another's land, or a
right against another that he refrain from doing a
certain class of act on or in connection mth his own
land, the holder of the easement having, as an integral
part thereof, rights against the members of the commu-
nity generally that they shall not interfere with the
exercise or enjoyment of the easement.
An easement, it has been said, never involves any
active duty upon the owner of the land subject to the
easement, his duty being merely the passive one, either
of not interfering with a certain class of acts by the
holder of the easement, or of himself refraining from
§ 348]
Easements. 1199
a certain class of acts.i Occasionally, however, an
interest analogous to an easement, involving a duly
of an active character upon the owner of land, has been
recognized, such an interest being sometimes referred to
as a "spurious easement."
So there may be an active duty, in the nature of
an ersement, to maintain a fence,^ and it seems that
there may be imposed, upon the owner of land subject
to an easement, an active duty to make repairs,^'^ though
this is most unusual.^ In Massachusetts, there has even
been recognized an obligation, not contractual in charac-
ter, to contribute to the cost of the maintenance of a
dam.''
Easements are sometimes divided into affirmative
and negative. An affirmative easement is one which au-
thorizes the doing of acts which, if no easement existed,
would give rise to a right of action, while a negative
easement is one the effect of which is not to authorize
the doing of an act by the person entitled to the easement,
but merely to preclude the owner of the land subject
to the easement from the doing of an act which, if no
easement existed, he would be entitled to do. In other
words, an affirmative easement involves the creation
of a privilege, while a negative easement involves the
withdrawal of a privilege.'' As examples of affirmative
easements may be mentioned a right of way, a right to
discharge water on another's land, and a right to main-
tain an erection thereon, while a right to have light pass
1. Macclesfield Highway Board Co. v. Staples, 164 Mass. 319, 29
V. Grant, 51 L. J. Q- B. 357; Tay- L. R. A. 500, 41 N. E. 441, tHree
lor V. Whitehead, Dougl. 716; judges dissenting. See the crit-
Chauntler v. Robinson, 4 Exch. icism of this case in 9 Harv. Law
;^g3 Rev. at p. 352.
2. Post § 357. 7. See Professor Wesley N. Hloh-
3-4. Rider v. Smith, 3 Term. field's article, 27 Yale Daw Jour-
Rep. 766; 1 Wms. Saund. 322c; nal, at pp. 71, 72 in which the
Gale, Easements (8th Ed.) 487. nature of an easement is well ex-
5. Post, § 370. plained.
6. Whittenton Manufacturing
1200 Real Property. [§ 348
to one's building over another's land, and a right to
have one's building supported by such land, may be
mentioned as examples of negative easements. Affirma-
tive easements are of much the more frequent occur-
rence.^
It is quite frequently stated that one cannot have
an easement in his own land, and this is no doubt ap-
proximately true. That is, if one has, as owner of
land, the right of possession, any use which he makes
thereof he makes by virtue of his ownership, and not
as having an easement therein. But it may happen
that he is an owner of land without having the right
of possession, as for instance, when he has an estate
in reversion or remainder. In such a case he may have
an easement in the land, although he is, in a sense, an
owner of the land. So one who has an undivided in-
terest in land, a cotenant, although he has rights of
ownership in the land, may also have an easement
therein as against his cotenant 's undivided interest in
the land.^ And one may, as cotenant of certain land,
have an easement in land owned by him in severalty.^"
It not infrequently occurs that two or more persons
have, as appurtenant to distinct pieces of land owned
by them, exactly similar easements in a single piece of
land. For instance, one who owns several adjoining
lots or parcels of ground may, in conveying them to
different persons, grant to each of such persons a right
of way in an alley, or over some land retained by him.^^
The various persons thus entitled to similar easements
8. See Gale, Easements (8tli Goralski v. Kostuski, 179 111. 177,
Ed.) 22. 70 Am. St. Rep. 98, 53 N. E. 720;
9. Reed v. West, 16 Gray Whitelaw v. Rodney, 212 Mass.
(Mass.) 284; Thompson v. Snyder, 540, 111 S. W. 560; City Club of
14 N. Max. 403, 94 Pac. 1014. Auburn v. McGeer, 198 N. Y. 160,
10. Bradley's Fish Co. v. Dud- 91 N. E. 539, 92 N. E. 105; Ailes
ley, 37 Conn. 136. v. Hallam, 69 W. Va. 305, 71 S. E.
11. See e. g. Goodwin v. Bra- 273.
gaw, 87 Conn. 31, 80 Atl. 668;
^ 349] Easements. 1201
are sometimes referred to as tenants in common of an
easement, but such an expression is inaccurate. If
the right of user vested in one person is appurtenant
to one tract, and the right of user vested in another
person is appurtenant to another tract, there are two
distinct rights of user, two easements, and not one ease-
ment. It is only when the two persons have an ease-
ment appurtenant to land of which they are tenants in
common that they can, with any degree of accuracy, be
said to be tenants in common of the easement.
Easements distinguished from other rights.
Natural rights^- are, as operating in restriction of the
use of another's land, occasionally referred to as
easements. Such rights are not, however, as are ease-
ments, primarily rights as regards another's land, but
are merely rights incident to the ownership of one's
own land.^"
An easement is to be distinguished from a profit
a prendre, which involves a power in the person en-
titled thereto of acquiring, by severance and removal
from another's land, a part of the soil thereof, or some-
thing growing or subsisting in the soil.^^
An easement is to be disting-uished from a license,
and the privilege created by a license. The nature and
characteristics of a license in regard to land constitute a
subject as to which there have been numerous decisions
and much discussion. The following section will be
devoted to a consideration of tlie subject of licenses.
§ 349. Licenses. (a) General nature. A license
in the law of land, is oi'dinarily a permission merely to
do something on or to the detriment of the land of the
12. Ante, chapter 11. 98 Cal. 161, 21 L. R. A. 593, 35
13. See, as to the distinction, Am. St. Rep. 163, 32 Pac. 976;
Backhouse v. Bonomi, 9 H. L. Cas. Scriver v. Smith, 100 N. Y. 471,
503; Pine v. City of New Yorlt, W.', Am. Rop. 224, 3 N. E. 675.
112 Fed. 98; Gray v. McWilliams, 14. /'"••</, c. 13.
1202 Real Property. [§ 349
giver of the license, the licensor. Occasionally it is a
permission to interfere with an easement or profit
a prendre belonging to the licensor. It creates a
privilege in favor of the licensee. A license, it has been
said, "passeth no interest, nor alters or transfers prop-
erty in anything, but only makes an action lawful which
without it, had been unlawful; as, a license * * *
to hunt in a man's park, to come into his house, are
only actions which, without license, had been unlaw-
ful. "^^
In so far as an easement involves, as it ordinarily
does, the privilege of doing or not doing a certain class
of act on or in connection with another 's land, there is a
superficial resemblance between an easement and the
privilege created by a license. The distinction between
such an easement and a license privilege lies primarily ^®
in the fact that the licensee has a privilege and nothing
more, while the holder of an easement has not only a
privilege but also rights against the members of the
community in general, including the owner of the land,
that they refrain from interference with the exercise
or enjoyment of the privilege. ^'^ That a licensee, as
such, has no right of action against a third person ob-
structing his exercise of the license privilege is, it is
conceived, beyond question, ^^ in spite of occasional
15. Thomas v. Sorrel, Vaughan, we give to the indefinite term
351; Wood V. Leadbitter, 13 Mees. & 'interest" the meaning of any
W. 837. See, to the same effect, advantage reoognized by the law.
Cook V. Stearns, 11 Mass. 533, 16. See Professor Hohfield's
480; Sterling v. Warden, 51 N. admirable statement in this re-
H. 217, 12 Am. Rep. 80; Wiseman gard, in 27 Yale Law Journal at
V. Lucksinger, 84 N. Y. 31, 38 p. 66.
Am. Rep. 479; Foster v. Brown- 17. Post, § 371.
ing, 4 R. I. 47, 67 Am. Dec. 505; 18. iSee Whaley v. Laing, 2
Thoemke v. Fiedler, 91 W^s. 386. Hurl. & N. 476, 3 Hurl. & N. 675;
The statement that a license Hill v. Tupper, 2 Hurl. & C. 121;
"passeth no interest," is ques- per Bramwell, B., Stockport
tioned by Professor Hohfield (See Water Works Co. v. Potter, 'A
27 Yale Law Jour, at p. 95) and Hurl. & C. 300; Heap v. Hartley,
properly so, it would seem, if 42 Ch. Div. 461; Clapp v. Boston,
§ 349]
Easements.
1203
decisions to the contrary.^^ That lie has no right of ac-
tion against the lando^\^ler himself by reason of such
an obstruction by the latter, is involved in the doctrine
that a license is revocable and may be revoked by an
act on the part of the licensor indicating an intention to
revoke.^" . .
A license may be to do any of an almost infinite
variety of things on another's land. Thus, one may
have a license to flood land,^^^ to erect buildings or other
structures thereon,^! ^^ pagg on the land," to maintain
a ditch,^^ to cut timber,^-' to use land for railroad
133 Mass. 367; Fletcher v. Liv-
ingston, 153 Mass. 388, 26 N. E.
1001; Per Loring, J., in Walker
Ice Co. V. American Steel & Wire
Co., 185 Mass. 463, 70 N. E. 937;
Elliott V. Mason, 76 N. H. 229, 81
Atl. 701.
"If a so called license does oper-
ate to confer an exclusive right
capable of being protected against
a stranger, it must be that there
is more than a license, namely
the grant of an interest or ease-
ment." Pollock, Torts (6th Ed.)
367.
19. Case v. Weber, 2 Ind. 108,
is to the effect that one having
a license to flow water through
another's land has a right of
action against a third person
who obstructs such flow. In Paul
V. Hazleton, 37 N. J. Law, 106,
and Miller v. Greenwich, 62 N. J.
Law 771, 42 Atl. 735, a right of
action in favor of a licensee
against a third person was sus-
tained, on the theory that the
licensee had, in those cases, the
exclusive possession of the land,
or of a part thereof. But a mere
licensee never has, it seems, pos-
session of the land. London &
N. "W. Ry. Co. V. Buckraaster, L.
R. 10 Q. B. 70; Taylor v. Cald-
well, 3 Best & S. 826; "Wells v.
Kingston-upon-Hull, L. R. 10 C.
P. 402; Lightwood, Possession of
Land, 19. One who has posses-
sion of land is a tenant, not a
licensee. 1 Tiffany, Landlord &
Ten, § 7. If a licensee did have
possession, his right of action
against a third person would be
based, not on his license, but on
his possession, and the existence
of the license would be immate-
rial as against others than the
licensor.
20. i'ost, § 349(d).
20a. Woodward v. Seely, 11
111. 157, 50 Am. Dec. 445.
21. Crosdale v. Lanigan, 129
N. Y. 604, 26 Am. St. Rep. 551;
Malott V. Price, 109 Ind. 22;
Eckert v. Peters, 55 N. J. Eq. 379,
36 Atl. 49L
22. Forbes v. Balenseifer, 74
111. 183.
23. Thoemke v. Fiedler, 91
Wis. 386.
24. Callen v. Hilty, 14 Pa. St.
286. See cases "»'(", § 262, note
96.
1204 Eeal Property. [§ 349
purposes.^^ A very common form of license is a
ticket of admission whereby one is permitted to enter
on another's land to witness a spectacle, or for some
similar purpose.-*^ A contract of lodging also, giving
not an exclnsive right to a part of the premises, but
merely a right to enter thereon and use them for
certain purposes, is in the nature of a license, and not
a lease.-" Likewise, the permission, generally tacit,
given to an employee or other person having business
with the owner of land, to enter on the laud for the
purpose of transacting* such business, creates the
relation of licensor and licensee.^'^
(b) No formality necessary. No formality is
necessary to a license. It may be in writing or oral,^'
or may be implied from the relations of the parties, or
from the conduct of the landowner, as when he indicates
an assent to the doing of certain acts on his land.-'^'
So, a person, by opening a place of business, licenses
the public to enter therein for the purpose of transact-
25. Beck v. Louisville, N. O. works Co. v. Great Northern Ry.
& T. R. Co., 65 Miss. 172; Har- Co., 21 Mont. 487, 54 Pac. 963;
low V. Marquette, H. & O. R. Co., Wilkins v. Irvine, 33 Ohio St.
41 Mich. 336. 138; Pursell v. Stover, 110 Pa.
26. Wood V. Leadbitter, 13 St. 43, 20 Atl. 403; Clark v. Glid-
Mees. & W. 838; McCrea v. Marsh, den, 60 Vt. 702, 15 Atl. 358; Bay
12 Gray (Mass.) 211. See 14 View Land Co. v. Ferguson, 53
Harv. Law Rav. 455. Meisner v. Wash. 323, 101 Pac. 1093; Lock-
Detroit B. I. & W. Ferry Co., 154 hart v. Geir, 54 Wis. 133, 11 N.
Mich. 545, 118 N. W. 14. W. 245.
27. See White v. Maynard, 111 30. Occum Co. v. A. & W.
Mass. 250; Wilson v. Martin, 1 Sprague Mfg. Co., 34 Conn. 529;
Denio (N. Y.) 602; 1 Tiffany, Cutler v. Smith, 57 111. 252;
La.idlord & Ten., § 8. Noftsger v. Barkdoll, 148 Ind. 531,
28. Merriam v. City of Meri- 47 N. E. 960; Fischer v. John-
den, 43 Conn. 173; Cutler v. Smith son, 106 Iowa, 181, 76 N. W. 658;
57 111. 252. Harmon v. Harmon. 61 Ma. 222;
29. Occum Co. v. A. & W. Fletcher v. Evans, 140 Mass. 241,
Sprague Mfg. Co., 34 Conn. 529; 2 N. E. 837; Metcalf v. Hart, 3
Owens v. Lewis, 46 Ind. 489, 15 Wyo. 513, 31 Am. St. Rep. 122,
Am. Rep. 295; Great Falls Water- 31 Pac. 407.
§ 349]
Easements.
1205
mg business.'^ ^ And a license to do certain acts on
land may occasionally be inferred from the owner's
failure to object to the doing of such acts thereon."^^
One who sells to another things which are upon the
land impliedly licenses the purchaser to come upon the
land to get the chattels within a reasonable time.^^
(c) Scope of license. A license to do a particu-
lar act necessarily invoh^es a license to do any other
act essential thereto.'*^ A license is not, however,
ordinarily construed as allowing an act other than that
named unless it is so essential, and it has accordingly
been decided that a license to place a structure or
appliance on one's land does not authorize the licensee
to jDlace there another structure or appliance in case
the first is destroyed or becomes useless.""'^ In the
case of a license to do some particular act, not con-
tinuous in its nature, the act must be done within a
reasonable time.'^^
31. Gowen v. Philadelphia Ex-
change Co., 5 Watts & S. (Pa.)
141; Cutler v. Smith, 57 111. 252.
See Phillips v. Cutler, 89 Vt. 233,
95 Atl. 487.
32. Occuni Co. v. Sprague
Mfg. Co., 34 Conn. 529; Noftsger
V. Barkdoll, 148 Ind. 531, 47 N.
E. 960; Fischer v. Johnson, 106
Iowa, 181, 76 N. W. 658; Smyr«
V. Kiowa County, 89 Kan. 664,
132 Pac. 181; Sheehan v. Kasper,
41 Nev. 27, 165 N. W. 632; Dris-
coll V. Newark, etc., Lime Co.,
37 N. Y. 637, 97 Am. Dec. 761;
Ewing V. Rhsa, 37 Ore. 583, 82
Am. St. Rep. 783, 52 L. R. A.
140, 62 Pac. 790; Thayer v. Jar-
vis, 44 Wis. 388; Metcalf v. Hart,
3 Wyo. 513, 31 Am. St. Rep. 122,
31 Pac. 407. See Phillips v. Cut-
ler, 89 Vt. 233, 95 Atl. 487.
33. Rogers v. Cox, 96 Ind. 157;
Folsom V. Moore, 19 Me. 252;
Barry v. Woodbury, 205 Me. 592,
91 N. E. 902. And see post, §
349(d), note 56.
34. Clark v. Vermont, etc. R.
Co., 28 Vt. 103; Sterling v. War-
den, 51 N. H. 217, 12 Am. Rep.
80, 22 Am. Dec. 410; Woodruff v.
Beekman. 43 N. Y. Super. Ct. 282;
Sayles v. Bemis, 57 Wis. 315, 15
X. W. 432.
35. Hall V. Boyd, 14 Ga. 1;
Carleton v. Redington, 21 X. H.
291; Cowles V. Kidder, 24 X. H.
364, 57 Am. Dec. 287. But see
Southwestern R. Co. v. Mitchell,
69 Ga. 114.
36. Parsons v. Camp, 11 Conn.
525; Gilmore v. Wilbur, 12 Pick.
(Mass.) 120, 22 Am. Dec. 410;
Hill V. Hill. 113 Mass. 103, 18
Am. Rep. 455.
1206
Real. Property.
[§ 349
The license will protect the agents or servants of
the licensee if it is a license, not for pleasure, but to
take profits from the land,"^" or if the act authorized is
such as to render the employment of others to do it
necessaiy or proper.^^
(d) Revocability of license. A license is, as
a general rule, revocable at the pleasure of the licens-
or,^^ and the fact that the license was embodied in
an instrument under seal is immaterial in this regard.^*'
The fact, moreover, that a consideration was paid for
the license has more usually been regarded as not
37. Wickham v. Hawker, 7
Mees. & W. 63.
38. Sterling v. Warden, 51 N.
H. 217.
In Fletclier v. Evans, 140 Mass.
,241, 2 N. E. 837, it was held that
if the heirs at law gave to the
widow authority to erect a mon-
ument upon the family burial lot,
they in effect gave her authority
to make any reasonable contract
for a monument, and, by impli-
cation, the right to give to the
contractor a license to enter the
lot to build a monument, and to
remove it if it was not satisfac-
tory or if she did not pay for it.
39. Fentiman v. Smith, 4 East.
107; Wood V. Leadbitter, 13 Mees.
& W. 845; DeHaro v. United
States, 5 Wall. (U. S.) 599, 18 L.
Ed. 681; Profile Cotton Mills v.
Calhoun Wlater Co., 189 Ala. 181,
66 So. 50; Wheeler v. West, 71
Cal. 126, 11 Pac. 871; Prince v.
Case, 10 Conn. 375, 27 Am. Dec.
675; Fluker v. Georgia Railroad
& Banking Co., 81 Ga. 461, 2 L.
R. A. 843, 12 Am. St. Rep. 328, 8
S. E. 529; Wilmington Water
Power Co. v. Evans, 166 111. 548,
46 N. E. 1083; McBride v. Bair,
134 Iowa, 661, 112 N. W. 169;
Elswick V. Ramey, 157 Ky. 639,
163 S. W. 751; Seidensparger v.
Spear, 17 Me. 123, 35 Am. Dec.
234; Rangeley v. Snowman, 115
Me. 412, 99 Atl. 41; Cook v.
Stearns, 11 Mass. 533; Morse v.
Copeland, 2 Gray (Mass.) 302;
Hodgkins v. Farrington, 150 Mass.
19, 5 L. R. A. 209, 15 Am. St
Rep. 168, 22 N. E. 73; Wbod v.
Michigan (Air Line R, Co., 90
Mich. 334, 51 N. W. 263; Johnson
v. Skillman, 29 Minn. 95, 43 Am.
Rep. 192, 12 N. W. 149; Sterling
V. Warden, 51 N. H. 217, 12 Am.
Rep. 80; Wiseman v. Lucksinger,
•84 N. Y. 31, 38 Am. Rep. 479;
Huff V. McCauley, 53 Pa. St. 206,
91 Am. Dec. 203; Geiger v. Mc-
Miahon, 31 S. Dak. 95, 139 N. W.
958; Barsdale v. Hairston, 81 Va.
764.
40. Wood V. Leadbitter, 13
Mees. & W. 838; Johnson v. Skill-
man, 29 Minn. 95, 43 Am. Rep.
192; East Jersey Iron Co. v.
Wright, 32 N. J. Eq. 248; Jackson
v. Babcock, 4 Johns. (N. Y.) 418;
Smyth V. Brooklyn Union Ele-
§ 349]
Easements.
1207
affecting its revocability,"^ but there are to be found
not infrequent statements or suggestions to the con-
trary, that the payment of a consideration may, by
itself' or in connection with the making of improve-
ments, operate to prevent a revocation.^- How the
vated R. Co., 121 App. Div. 282,
105 N. Y. Su'pp. 601; Williamston
etc. R. Co. V. Battle, 66 N. C.
540.
That the license is evidenced by
an unsealed writing is a fortiori
immaterial as regards the power
of revocation. Lehigh & N. E.
R. Co. V. Bangor & P. R. Co., 228
Pa. 350, 77 Atl. 552.
41. Wood V. Leadbitter, 13
Mees. & W. 838; Workman v.
Stephenson, — Colo. App. — , 144
Pac. 1126; St. Louis National
Stock Yards v. Wiggins Ferry Co.,
112 111. 384, 54 Am. Rep. 543;
Minneapolis Mill Co. v. Minne-
apolis & St. L. Ry. Co., 51 Minn.
304, 53 N. \V. 639; Shippey v.
Kansas City, 254 Mo. 1, 162 S. W.
137; Dodge v. McClintock, 47 N.
H. 383; Wiseman v. Lucksinger.
84 N. Y. 31, 38 Am. Rep. 479;
Eckerson v. Crippen, 110 N. Y.
585, 1 L. R. A. 487, 18 N. E. 443;
Herndon v. Durham & S. Ry. Co ,
161 N. C. 650, 77 S. E. 683; Bald-
win V. Taylor, 166 Pa. 507, 31
Atl. 250; Caledonian County Gram-
mar School V. Kent, 86 Vt. 151,
84 Atl. 26; Thoemke v. Fiedler, 91
Wis. 386, 64 N. W. 1030. And see
cases cited supra, this section,
note 39.
That this is so has been ire-
quently decided in cases involv-
ing the rights of the holder of
a ticket to a theater or other
place of entertainment. V. )d v.
Leadbitter, 13 Mees. & W. 845;
Marrone v. Washington Jockey
Club, 227 U. S. 633, 57 L. Ed. 679.
43 L. R. A. (N. S.) 691; McCrea
V. Marsh, 12 Gray (Mass.) 21, 71
Am. Dec. 745; Burton v. Scherpf,
1 Allen (Mass.) 133, 79 Am. Dec.
717; Meissner v. Detroit B. I. &
W. Ferry Co., 154 Mich. 545, 19
L. R. A. (N. S.) 872, 129 Am.
St. Rep. 493, 118 N. W. 14; Shu-
beri v. Nixon Co., 83 N. J. L.
101, 83 Atl. 369; People v. Fynn,
189 N. Y. 180, 82 N. E. 169; Pur-
cell V. Daly, 19 Abb. N. Cas. 301;
Taylor v. Cohn, 47 Ore. 538, 84
Pac. 388; Horney v. Nixon, 213
Pa. St. 20, 1 L. R. A. (N. S.) 1184,
61 Atl. 1088, 110 Am. St. Rep.
520; Buenzle v. Newport Amuse-
ment Ass'n, 29 R. I. 23, 14 L. R.
A. (N. S.) 1242, 68 Atl. 721; Bos-
well V. Barnum & Bailey, 135
Tenn. 35, 185 S. W. 692; W. W.
V. Co. V. Black, 113 Va. 728, Ann.
Cas. 1913E. 558, 75 S. E. 82.
42. Sullivan Timber Co. v.
Mobile, 124 Fed. 648; Hicks v.
Swift Creek Mill Co., 133 Ala.
411, 57 L. R. A. 720, 91 Am. St.
Rep. 38, 31 So. 947; Alderman
v. New Haven, 81 Conn. 137, 18
L. R. A. (N. S.) 74, 70 Atl. 626;
Hiers v. Mill Haven Co., 113 Ga.
1002, 39 S. E. 444; McReynolds
v. Harrigfield, 26 Idaho, 26, 140
Pac. 1096; Morse v. Lorenz, 262
111. 115, 104 N. E. 237; Nowlin
1208
Keal Property.
r§ 349
nature of the privilege created by a license can be
altered in tliis or any other respect by reason of
the fact that a consideration was paid for the license
is not readily perceptible. But though the payment of
a consideration should not render a license irrevocable,
the fact that a consideration is paid for a grant of
permission, either oral or in writing, to make a particu-
lar use of one's land, is a circumstance tending to show
tliat the grant of an easement and not a license merely
was intended, in which case, as hereafter explained,
the making of improvements on the faith of such in-
valid grant will justify the interposition of a court of
equity to protect the grantee.*'^
Improvements by licensee. The question
whether, after the licensee has expended money in the
making of improvements "on the faith of the license,"
V. Wliipple, 120 Ind. 596. 6 L. R.
A. 159, 22 N. E. 669; Ruthven
V. Farmers' Co-oporative Cream-
ery Co., 140 Iowa, 570, 118 N. W.
915; Kastner v. Benz, 67 Kan.
486, 73 Pac. 67; Martin v. O'Brien,
34 Miss. 21; Wright v. Brown,
163 Mo. App. 117, 145 S. W. 518;
Ewing V. Rhea, 37 Ore. 583, 52
L. R. A. 140, 82 Am. St. Rep. 783.
62 Pac. 790; Falls City Lumber
Co. V. Watkins, 53 Ore. 212, 99
Pac. 884; Salinger v. North
American Woolen Mills, 70 W.
Va. 151, 73 S. E. 312.
In Hurst v. Picture Theatres,
Ltd. (1915) K. B. 1, it was de-
cided, by two judges against one,
that the license involved in the
sale of a ticket for a perform-
ance could not be revoked. The
m.ajority opinions appear to be
based upon the theory that there
was a contract, capable of en-
forcement by injunction, that the
ticket holder should be allowed
to sit through the performance,
which gave him an equitable in-
terest in the land itself, which
could not be withdrawn at will.
Such an interest, if its existence
be conceded, must be in the na-
ture of an easement, and an
easement to endure only for the
period of a moving picture per-
formance is, to say the least, a
novelty. That the ticket holder
has no interest in such a case,
entitled to protection, see edito-
rial notes in 13 Mich. Law Rev.
at p. 401, 27 Harv. Law Rev. 495
and article by J. C. Miles, Esq.,
31 Law Quart. Rev. 217. The de-
cision is approved in editorial
notes in 14 Columbia Law Rev.
at p. 608; 26 Yale Law Journal,
395.
43. Post, this section, notes
43-49.
§ 349]
Easements.
1200
that is, for the purpose of availing- himself of the li-
cense, the license continues revocable as it was before
such expenditure, has been the subject of a great num-
ber of dicta and decisions. These may be broadly
divided into two groups. Those in the one group are
in terms that, after the licensee has made expenditures
upon the strength of the license, a revocation of the
license would involve a fraud upon him, which a court
of equity, and occasionally a court of law, will not
permit.^^ Those in the other group are to the opposite
44. Davis v. Tway, 16 Ariz.
566, L. R. A. IfllSE, 604, 147 Pac.
750; Stoner v. Zucker. 148 Cal.
516, 7 Ann. Cas 704. 113 Am. St.
Rep. 301, 83 Pac. 808; Gyra v.
Windier, 40 Colo. 366, 13 Ann.
Cas. 841, 91 Pac. 36; Alderman
V. New Haven, 81 Conn. 137, 18
L. R. A. (N. S.) 74, 70 Atl. 626;
Cook V. Pridgen, 45 Ga. 331, 12
Am. Rep. 582; Cherokee Mills v.
Standard Cotton Mills, 138 Ga.
856, 76 S. E. 373 (statute) ; Mc-
Reynolds v. Harrigfield, 26 Idaho,
26, 140 Pac. 1096; Girard v. Le-
high Stone Co., 280 111. 479, 117 N.
E. 698; Ferguson v. Spencer, 127
Ind. 66, 25 N. E. 1035; Joseph
V. Wild, 146 Ind. 249, 45 N. E.
467; Decorah Woolen Mill Co. v.
Greer, 49 Iowa, 490; Hansen v.
Farmers' Co-operative Creamery,
106 Iowa, 167, 76 N. W. 652; Pat-
terson V. City of Burlington, 141
Iowa, 291, 119 N. W. 593; Kastner
V. Benz, 67 Kan. 486, 73 Pac. 67;
Smyre v. Kiowa County, 89 Kan.
664, 132 Pac. 209; Cape Girar-
deau & T. B. T. R. Co. V. St.
Louis & G. Rwy. Co., 222 Mo.
461, 121 S. W. 300; Great Falls
Water works Co. v. Great North.
Ry. Co., 21 Mont. 487, 54 Pac.
?63; Arterburn v. Beard. 86 Neb.
733, 126 N. W. 379. Raritai-
Water Power Co. v. Veghte, 21
N. J. Eq. 142; Van Horn v. Clark,
56 N. J. Eq. 476, 40 Atl. 203;
Polakoff V. Halphen. 83 N. J. Eq.
126. 89 Atl. 996 (But soe, as to
New Jersey, Lawrence v. Spring-
er, 49 N. J. Eq. 289, 31 Am. St.
Rep. 702, 24 Atl. 993); Lee v. Mc-
Leod, 12 Nev. 280; Bowman v.
Bowman, 35 Or. 279, 27 Pac. 546;
Kelsey v. Bertram, 63 Ore. 563,
127 Pac. 777; Rerick v. Kern, 14
Serg. & R. (Pa.) 267; Pierce v.
Cleland, 133 Pa. 189, 7 L. R. A.
752, 19 Atl. 352; Butz v. Rich-
land Twp., 28 S. Dak. 442, 134 N.
W. 895 (dictum); Risien v.
Brown, 73 Tex. 135, 10 S. W. 661
(dictum); Clark v. Glidden, 60
Vt. 702, 15 Atl. 358; Barre v.
Ferry & Scribner, 82 Vt. 301, 73
Atl. 574; Phillips v. Cutler, 89
Vt. 233, 95 Atl. 487; Kent v.
Dobqns, 112 Va. 586, 72 S. E. 139
(semhle); Gustin v. Harting. 20
Wyo. 1, 33 A. & E. Ann. Cas.
1914C, 911, 121 Pac. 522.
On this theory it has been de-
cided that if two adjoining
1210
Eeal Property.
[§ 349
effect, that the making of improvements by a licensee
is not ground for denying to the licensor the right of
revocation which is otherwise incident to a license.^^
owners of land erect buildings
together with an oral agreement
as to the mutual use of stair-
cases or hallways, each has in
eitect a license, which cannot be
withdrawn after the buildings
have been constructed on the
faith of the agreement. Clark v.
Henckel (Md.), 26 Atl. 1039;
Binder v. Weinberg, 94 Miss. 817,
48 So. 1013; Cleland's Appeal, 133
Pa. 189. 7 L. R. A. 752, 19 Atl.
352.
45. Hicks V. Swift Creek Mill
Co., 133 Ala. 411, 91 Am. St. Rep.
38, 57 L. R. A. 720, 31 So. 947;
Howes V. Barmon, 11 Idaho, 64,
69 L. R. A. 568, 114 Am. St. Rep.
255, 81 Pac. 48 (dictum); St.
Louis Nat. Stock Yards v. Wig-
gins Ferry Co., 112 111. 384, 54
Am. Rep. 243; Dwight v. Hayes,
150 111. 273, 41 Am. St. Rep. 367,
37 N. E. 218; Lambe v. Man-
ning, 171 111. 612, 49 N. E. 509;
Morse v. Lorenz, 262 111. 115, 104
N. E. 237 (But see, as to Illinois,
Ashelford v. Willis, 194 111. 492,
62 N. E. 817) ; Moulton v. Faught,
41 Me. 298; Hodgkins v. Farring-
ton, 150 Mass. 19, 15 Am. St.
Rep. 168, 5 L. R. A. 209, 22 N.
E. 73; Nowlin Lumber Co., v.
Wilson, 119 Mich. 406, 78 N. W.
338; Minneapolis Mill Co. v.
Minneapolis & St. L. Rwy. Co.,
51 Minn. 304, 53 N. W. 639 (But
see as to Minnesota, dictum in
St. John V. Sinclair, 108 Minn.
274, 122 N. W. 164 ) ; Belzoni Oil
Co. V. Yazoo & M. V. R. Co., 94
Miss. 58, 47 So. 468 (But see, ae
to Mississippi, Binder v. Wein-
berg, 94 Miss. 817, 48 So. 1013 ) ;
Great Falls Waterworks v. Great
Northern Rwy. Co., 21 Mont. 487,
54 Pac. 963; Archer v. Chicago
M. &. St. P. Rwy. Co., 41 Mont.
56, 137 Am. St. Rep. 692, 108
Pac. 571; Houston v. Laffee, 46
N. H. 505; Batchelder v. Hib-
bard, 58 N. H. 269; Crosdale v.
Lanigan, 129 N. Y. 604, 26 Am.
St. Rep. 551, 29 N. E. 824; Rich-
mond & D. R. Co. V. Durham &
N. Ry. Co., 104 N. Car. 658, 10 S.
E. 659; Rodefer v. Pittsburgh,
etc., R. Co., 72 Ohio St. 272, 70
L. R. A. 844, 74 N. E. 183; Yeager
V. Tuning, 79 Ohio St. 121, 86 N.
E. 657; Fowler v. Delaplaine, 79
Ohio St. 279, 87 N. E. 260; Poster
V. Browning, 4 R. I. 47; Nunnelly
V. Southern Iron Co., 94 Tenn.
397, 29 S. W. 361; Yeager v.
Woodruff, 17 Utah, 361, 53 Pac.
1045 (semble); Hathaway v.
Yakima Water, etc., Co., 14 Wash.
469, 53 Am. St. Rep. 874, 44 Pac.
896; Rhoades v. Barnes, 54 Wash.
145, 102 Pac. 884; Pifer v.
Brown, 43 W. Va. 412, 49 L. R.
A. 497, 27 S. E. 399; Thoemke
V. Fiedler, 91 Wis. 386, 64 N.
W. 1030; Huber v. Stark, 124
Wis. 359, 109 Am. St. Rep. 937,
102 N. W. 12; (But see, as to
Wisconsin, McDougald v. New
Richmond Roller Mills Co., 125
Wis. 121, 103 N. W. 244; Water-
§ 349]
Easements. 1-1^
These latter cases are ordinarily based on tlie theory,
firstly, that one who takes a license is presumed to
know that, as a matter of law, a license is revocable,
and consequently cannot assert that he was misled by
the license into making improvements as if he had a
more or less permanent interest in the land, and,
secondly, that, in so far as the license is oral, as is
usually" the case, the contrary view involves a violation
of the Statute of Frauds, in allowing what is in etteet
a permanent or quasi permanent interest m land to
be created orally. A consideration of the question on
principle would seem to lead to the conclusion that the
two groups of decisions are not so discordant as at
first sidit appears, and that the difference of view
really centers about a question of the construction ot
the license, so called, as to whether it was intended
merely as a license, or as the grant of an easement,
the privilege being in the former case subject to with-
drawal in spite of the improvements, but not m the
latter. In other words, it being generally recognized ^« *'
that in the case of an oral gift of land, if the donee
makes improvements on the faith of the gift, equity
will enforce the gift, on the theor^^ of part performance
or equitable estoppel, it necessarily follows that an
oral gift of an easement or right of profit m the land
Avill likewise be enforced in equity in case the donee
makes improvements on the faith therof.'''' An at-
tempted oral grant or '^agreement for" an easement,
in return for a valuable consideration, will a fortiori be
enforced in equity, if followed by improvements on the
faith thereof, whether it be regarded for this purpose
man v Norwalk, 145 Wis. 663, the fact that it was intended by
130 N W 479.) ^^® owner of the land that the
46-47. Post, § 547. user of his land should be per-
48 But in Huber v. Stark, 121 manent was immaterial, unless
Wis. 359. 109 Am. St. Rep. 937. there was a consideration for the
102 N. W. 12, it was held that grant of permission.
1212 B.EAL. Peoperty. [§ 349
as an executory contract to convey an easement or as
an attempt to grant an easement, invalid because oraL***
Applying the above considerations, if an oral per-
mission to make a particular use of land is construed as
an attempt to create an easement, that is, an interest
in the land of a more or less permanent character,
which is therefore invalid as not being in writing, the
effect of the making of improvements on the faith
thereof will be to create an equitable right in accord-
ance with the intended gift or grant; while if such
permission is merely a license, and not an attempt to
create an easement, then it is properly revocable after
as before the making of improvements. Accordingly,
the decisions that a license cannot be revoked after the
making of improvements on the faith thereof appear
properly to involve merely the assertion of a rule of
construction, that an oral permission to make a particu-
lar use of land, which use is such that it will be neces-
sary or desirable to make expenditures in order to avail
oneself of the permission, is to be construed as an
attempt orally to grant an easement in the land, which
is absolutely invalid as a grant, but operates by way of
equitable estopjjel in favor of the intended grantee if
he subsecjuently makes expenditures on the assumption
that he acquired an easement thereby, although, as a
matter of fact, he originally acquired, by reason of
the invalidity of the grant, merely a license. On
the other hand, the decisions that a license can be re-
49. See Flickinger v. Shaw, 87 v. Weinberg, 94 Miss. 817, 48 So.
Cal. 126, 22 Am. St. Rep. 234, 1013; Lewis v. Patton. 42 Mont.
11 L. R. A. 134, 25 Pac. 268; 528, 113 Pac. 745; Wiseman v.
Legg V. Horn. 45 Conn. 415; St. Lucksinger, 84 N. Y. 31, 38 Am.
Louis Nat. Stock Yards Co. v. Rep. 479; East India Company v.
Wiggins Ferry Co., 112 lU. 384, Vincent, 2 Atk. 83; Devonshire
54 Am. Rep. 243; Willoughby v. v. Eglin, 14 Beav. 530; Plimmer
Lawrence. 116 in. 11, 56 Am. v. Wellington, L. R. 9 App. Cas.
Rep. 758, 4 N. E. 356; Johnson 699; Mc:\Ianus v. Cooke, 35 Ch.
V. Skillman, 29 Minn. 95, 43 Am. Div. 681.
Rep. 192, 12 N. W. 149; Binder
§ 349] Easements. 1213
voked even after the making of improvements on the
faith thereof appear properly to involve the assertion
of a rule that permission to make a particular use of
land is not to be construed as an intended grant of an
easement, even though its enjoyment does involve the
making of improvements hy the person to whom it is
given. In accordance with this view, that the question is
properly one of the construction of the language used
in granting the permission, in connection with the
character of the acts authorized and the necessity of
expenditures to make the permission practically avail-
able, are occasional decisions that if the license is ex-
pressed to be revocable, or subject to the pleasure of
the licensor, it may be revoked in spite of expenditures
for improvements,^*^ as well as occasional suggestions
that if the permission is granted for a named period it
canot be revoked until the end of that period.''^ If
permission to use "another's property is expressed to
be revocable, it must necessarily be either a license
merely, or the grant of an easement, subject to a power
of revocation, while if it is granted for a named period,
it cannot be intended as a license merely, but nmst he
construed as a i>rant, or attempted grant, of an ease-
ment.
It h;is in one state been decided tliat wlicn a license
to make a particular use of one's land is merely in-
ferred from acquiescence in such use,"*- the making of
50. Thompson v. Normanden, in spite of expenditures. Brower
134 Iowa, 720, 112 N. W. 188; v. Wakeman. 88 Conn. 8, 89 Atl.
Laughery Turnpike Co. v. .Mc- 913.
Creary, 147 Ind. 526, 46 N. E. 51. St. Louis Nat. Stock Yards
906; Kentucky Distilleries Ware- Co. v. Wiggins Ferry Co., 112 111.
house Co. V. Warwick Co.. 166 384, 54 Am. Rep. 243: Baynard v.
Ky. 651. 179 S. W. 611; Wood Every Evening Printing Co., 9
V. Edes, 2 Allen (Mass.) 578; Del. Ch. 127, 77 Atl. 885; Adams
Risien v. Brown, 73 Tex. 135, 10 v. Weir & Flagg (Tex. Civ. App.),
S. W. 661; Hall v. Chaffee, 13 99 S. W. 726.
Vt. 150. So if it is for one y;e^r 52. Ante, this section, note 27.
only, it is revocable thereafter
2. R. ?.— 2
1214 Keal Peoperty. [§ 349
improvements hj tlie Jicensee did not render the license
irrevocable.^'' Such a view appears reasonable. There
is evidently no attempted grant of an easement, and
nothing on which the licensee can properly base an as-
sumption that he has a permanent interest in the land,
so as to justify his expenditure for improvements.
There are occasional decisions or dicta that after
a license has become irrevocable by reason of the
•making of improvements thereunder or, as we would
prefer to express it, after an attempted oral grant of
an easement has been validated by such making of im-
provements, the license privilege remains irrevocable,
or the easement endures, only so long as the improve-
ments originally made continue available for the pur-
pose of its exercise.^'" This view appears to involve a
failure to recognize the connection between the case
referred to and the doctrine of part performance or
equitable estoppel. There is no more reason that the
privilege should in such case be restricted to the life
of the improvements than that a decree specifically en-
forcing a contract for the sale of land, based on the
part performance involved in the making of improve-
ments, should call for a conveyance of an estate to en-
dure only as long as the improvements endure.
Occasionally the courts have suggested or asserted
that, in case the licensee has made improvements on
the faith of the license, it can be revoked, but only if
the licensee is placed in statu quo by reimbursement of
the cost of such improvements.^* The propriety of this
53. Shaw V. Prof itt. 57 Ore. 192, Clark v. Glidden, 60 Vt. 702, 15
Ann. Cas. 1913A, 63, 109 Pac. 584, Atl. 358.
110 Pac. 1092; Ewing v. Rhea, 37 54. Wynn v. Garland, 19 Ark.
Ore. 583, 82 Am. St. Rep. 783, 23, 68 Am. Dec. 190; Flick v.
52 L. R. A. 140, 62 Pac. 790. Bell, 110 Cal. xvii 42 Pac. 813;
Compare Boynton v. Hunt, 88 Vt. Southwestern R. Co. v. Mitchell,
187; 92 Atl. 153. 69 Ga. 114; Dlllion v. Crook, 11
53a. Ameriscoggin Bridge v. Bush (Ky.) 321; Ferguson v.
Bragg, 11 N. H. 102; Phillips v. Spencer 127 Ind. 66, 25 N. E.
Cutler, 89 Vt. 233, 95 Atl. 487; 1035; Shipley v. Fink, 102 Md.
^ 349] Easements. 1215
form of relief in favor of the person making the im-
provements, like that of the absolute negation of the
right to revoke, appears properly to be a question of the
construction of "the language used in according permis-
sion to make use of the land, as to whether it is a
license or the attempted grant of an easement. If the
latter, it is for the court, in its discretion, it would
seem, to determine whether the landowner should be
given an opportunity, by reimbursing the expenditures
made on the faith of the invalid grant, to relieve his
land of the easement to which it would otherwise be sub-
ject on the theory of equitable estoppel.
License coupled with an interest. A license
which is coupled with a grant or interest cannot, it is
agreed, be revoked. ^^ What this means is that if one
has an interest, acquired by grant or otherwise, in some
thing or things upon the land, for the purpose of re-
moving which a license to enter on the land is expressly
given or necessarily implied, such removal cannot be
prevented • on the theory that a license is revocable.
The doctrine that a license coupled with an interest is
irrevocable has been applied in the case of chattels
219, 62 Atl. 316; Dawson v. West- 330, 351; Wood v. Leadbitter, 13
ern Md. R. Co., 107 Md. 70, 14 Mees. & W. 838; Miller v. State,
L. R. A. N. S. 809, 126 Am. St. 39 Ind. 267; Long v. Buchanan, 27
Rep. 337, 15 A & E. Ann. Cas. Md. 502, 92 Am. Dec. 653; Ster-
678, 68 Atl. 301; Johnson v. Bart- ling v. Warden, 51 N. H. 217, 12
ron, 23 N. D. 629, 44L. R. A. (N. S.) Am. Rep. 80; Williamston etc.
557, 137 N. W. 1092. See com- R. Co. v. Battle, 66 N. C. 540;
pilation of cases in 44 L. R. A. Metcalf v. Hart, 3 Wyo. 513, 31
N. S. 557. Am. St. Rep. 122, 27 Pac. 900,
Applying such a theory, it has 31 Pac. 407.
been held that if the licensee is Occasionally the courts have
allowed to recover from the mistakenly referred to what is
licensor the value of his improve- properly a valid grant of a right
ments, he cannot thereafter assert of profit, as a license coupled
that the license is irrevocable. with an interest. Funk v. Halde-
Oster V. Broe, 161 Ind. 131, 64 man, 53 Pa. 229; McLeod v. Dial,
N. E. 918. 63 Ark. 10, 37 S. W. 306.
55. Thomas v. Sorrell, Vaughan
1216 Real Property. [§ 349
sold while lying- upon the vendor's premises, ^'^ and also
in the case of chattels placed upon another's land by
the latter 's permission.^'^ So, as has been judicially
stated,^^ while a license by A to hunt in his park,
whether given by deed or parol, is revocable, as merely
rendering lawful the act of hunting, which would other-
wise be unlawful, on the other hand, if the license be,
not only to hunt, but also to take away the deer killed
to his own use, this is a grant of the deer, with a license
annexed to come on the land, and sup])osing the grant
of the deer to be good, the license is irrevocable. The
doctrine might also be applied in connection with a
valid conveyance or sale of growing trees, or of min-
erals or fixtures in or on the land, which while legally a
part of the land, are capable of becoming ])ersonalty
by severance,^^ but in such a case the inability of the
landoVkTier to deprive the transferee of the privilge of
entering on the land for the purpose of removing the
things granted may perhaps be more satisfactorily
based on the theory that the grantee of those things,
trees, minerals or fixtures, as the case may be, acquires
not a license merely, but an easement, a right of way by
necessity,^ "^ which will endure so long as the necessity ex-
ists.
A license is obviously not coupled with a grant or
interest in the sense referred to, so as to be irrevocable,
56. Wood V. Manley, 11 Ad. & & W. 483: Giles v. Simonds, 15
El. 34; Walker Furniture Co. v. Gray (Mass.) 441, 77 Am. Dec.
Dyson, 32 Dist. Col. A.pp. 90, 19 373; Sterling v. Warden, 51 N.
L. R. A. N. S. 606; Parker v. H. 217, 12 Am. Rep. 80; White
Barlow, 93 Ga. 700, 21 S. E. 213; v. Elwell, 48 Me. 360, 77 Am. Dec.
Rogers v. Cox, 96 Ind. 157, 49 231.
Am. Rep. 152; Giles v. Simonds, 58. Wood v. Leadbitter, 13
15 Gray (Mass.) 441, 77 Am. Dec. Mees. & W. 828.
373; Heath v. Randall, 4 Cush. 59. See dewberry v. Chicago
(Mass.) 195; Lambert v. Robin- Lumbering Co., 154 Mich. 84, 117
son, 162 Mass. 34, 44 Am. St. Rep. N. W. 592; and infra, this section
326, 37 N. E. 753. section, note 63.
57. Patrick v. Colerick, 3 Mees. 60. Post, § 363(c).
§ 349] Easements. 1217
if the licensee lias failed to secure any interest by
reason of the invalidity of the attempted grant of the
interest.'^ ^ So it has been frequently decided that, an
oral sale of growing trees being insufficient to pass
them as such/^^ the vendee has merely a revocable
license to cut the trees, while, after they are cut, the
sale is regarded as taking effect on them, as intended, in
their chattel character, and then the vendee, having an
interest in the trees, has an irrevocable license to enter
on the land to remove them.''-^ And a like doctrine
has been applied in connection with a sale of minerals in
or fixtures upon the land which, as being oral merely,
is not effective as a transfer thereof.^*
If what was originally a license has become, by
the application of the doctrine of part performance or
equitable estoppel, in effect an easement, it no doubt
remains a burden upon the land in the hands of a subse-
quent purchaser of the land, except when he is a pur-
chaser for value and without notice.^^ And a subse-
61. Crosby v. Wadsworth, 6 159, 29 Atl. 840; Polk v. Carney.
East, 602; Wood v. Leadbitter, 17 S. D. 436. 97 .N W. 360;
13 Mees & W. 838; Long v. Buch- Welever v. Advance Sningle Co.,
anan, 27 Md. 502, 92 Am. Dec. 653. 34 Wash. 331, 75 Pac. 863; Bru.
62. Ante, § 261, note 82. ley v. Garvin, 105 Wis. 625, 48
63. Colby Hinkley Co. v. Jor- L. R. A. 839, 81 N. W. 1038.
dan, 146 Ala. 634, 41 So. 962; In Cool v. Peters Box Co., 87
Jenkins v. Lykes, 19 Fla. 148, 45 Ind. 531, it was considered that
Am. Rep. 19; Cool v. Peters Box even if the trees were cut by
& Lumber Co., 87 Ind. 531; Gar- a stranger, the contract of sale
ner v. Mahoney, 115 Iowa, 356, operated to vest title thereto in
88 N. W. 828; Martin v. Johnson, the original vendee, who was con-
105 Me. 156, 73 Atl. 963; Giles sequently entitled to sue the stran-
V. Simonds, 15 Gray (Mass.) 441, ger for their conversion.
77 Am. Dec. 373; United Soc. v. 64. MtCullagh v. Rains, 7.")
Brooks, 145 Mass. 410, 14 N. E. Kan. 4.58, 89 Pac. 1041; Wetospsky
622: White v. King, 87 Mich. 107, v. New Haven Gas Light Co., 88
49 N. W. 518; Walton v. Lowrey, Conn. 1, 90 Atl. 30; Whitaker v.
74 Miss. 484, 21 So. 243; Pierre- Cawthorne, 14 N. Car. 389.
pont v. Barnard, 6 N. Y. 279; 65. That an innocent purchaser
Fish v. Capwell, 18 R. I. 667, 49 for value is protected, see Prince
Am. St. Rep. 807, 25 L. R. A. v. Case, 10 Conn. 375, 27 Am. Dec.
1218
Real. Property.
§ 349
qiient purcliaser with notice has no more right than has
his vendor to revoke the license, so called.^*^ The li-
censee has an equity against the licensor, the right to
enforce which as against a purchaser from the licensor
is determined by the ordinary rule for determining
priorities in equity.*^ ^
(e) Mode of revocation. A license may be re-
voked either by express words to that effect, or by an
act on the part of the licensor indicating an intention to
revoke it,^^ as when he makes its exercise impossible.'^"
It is likewise revoked by a conveyance of the
land to a third person,*^*^ or by the death of the
675; Clark v. Close, 43 Iowa, 92;
Wilkins v. Irvine, 33 Ohio St. 138;
Wheation v. Cutler, 84 Vt. 476, 79
Atl. 1091.
66. Russell v. Hubbard, 59 111.
335; Arterburn v. Beard, 86 Neb.
733, 126 N. W. 379; Joseph v.
Wild, 146 Ind. 249, 45 N. E. 467;
Portman v. Topliff, 138 Iowa, 19,
115 N. W. 508; Carrolton Tele-
phone Exchange Co. v. Spicer, 177
Ky. 340, 197 S. W. 827; Shaw v.
Profitt, 57 Ore. 192, Ann. Cas.
1913A, 63, 109 Pac. 584, 110 Pac.
1092.
67. See Ewart, Elstoppel, 199
and post, § 566.
68. Wood V. Leadbitter, 13
Mees. & W. 838; Prince v. Case,
10 Conn. 375, 27 Am. Dec. 675;
Fluker v. Georgia Railroad &
Banking Co., 81 Ga. 461, 12 Am. St.
Rep. 328, 2 L. R. A. 843, 8 S.
E. 529; Forbes v. Balenseifer, 74
111. 183; Fischer v. Johnson, 106
Iowa, 181, 76 N. W. 658; Hodg-
kins V. Farrington, 150 Mass. 19,
5 L. R. A. 209, 15 Am. St. Rep.
168, 22 N. E. 73; Pitzman, v.
Boyce, 111 Mo. 387, 33 Am. St.
Rep. 336; Carleton v. Redinglon
21 N. H. 291.311.
But it has been held that the
institution of an action of eject-
ment by the licensor against the
licensee does not effect a revo-
cation for the purpose of that
action. Somers v. Somers, 83 Conn.
156, 76 Atl. 45.
69. Hyde v. Graham, 1 Hurlst.
& C. 593; Forbes v. Balenseifer,
74 111. 183; Fowler v. Hyland, 48
Mich. 179, 12 N. W. 26; Pitzman
V. Boyce, 111 Mo. 387, 33 Am. St.
Rep. 536, 19 S. W. 1104; Quimby
V. Straw, 71 N. H. 160, 51 Atl. 656;
West V. Shaw, 61 Wash. 227, 112
Pac. 243; Hazelton v. Putnam, 3
Pin. (Wis.) 107, 54 Am. Dec. 158.
70. Wallis V. Harrison, 4 Mees.
& W. 538; Hicks v. Swift Creek
Mill Co., 133 Ala. 411, 91 Am. St.
Rep. 38, 57 L. R. A. 720, 31 So.
947; Wetospsky v. New Haven
Gas Light Co., 88 Conn. 1, Ann.
Cas. 1916D, 968, 90 Atl. 30; Jen-
kins V. Lykes, 19 Fla. 148, 45 Am.
Rep. 19; High v. Jasper Mfg. Co.,
57 Fla. 437, 49 So. 156; Kamp-
§ 349]
Easements.
1219
licensor/^ since a license cannot justify a trespass on
land as against the licensor's grantee, heir or devisee."^ -
(f) Termination otherwise than by revocation.
A license may, as above indicated, cease to be opera-
tive by reason of its revocation, that is, by reason of
the landowner's indication of an intention to that
effect,*^-^ or by reason of the land having passed into
the hands of a person other than the licensor/^ It
may also cease to ■ be operative by force of the terms
of the license itself, as when it permits only one act
by the licensee, and that act has been done, or the
license is limited as to time,'^^ or it is subject to a
house V. Gaffner, 73 111. 453; Mc-
Intyre v. Harty, 236 111. 629, 86
N. E. 581 ; Seidensparger v. Spear,
17 Me. 123, 35 Am. Dec. 234;
Drake v. Wells, 11 Allen (Mass.)
141; Minneapolis, etc. R. Co. v.
Marble, 112 Mich. 4, 70 N. W.
319; Minneapolis Western Ry. Co.
V. Minneapolis & St. L. Ry. Co.,
58 Minn. 128, 59 N. W. 983; Houx
V. Seat, 26 Mo. 178, 72 Am. Dec.
202 (but see Bracht v. Johnson,
187 Mo. App. 220, 173 S. W. 692);
Eckerson v. Crippen, 110 N. Y. 585,
1 L. R. A. 487, 18 N. E. 443;
VoUmer's Appeal, 61 Pa. St. 118;
Price etc. Co. v Madison, 17 S.
D. 247, 95 N. W. 9;{3; U. S. Coal
& Oil Co. V. Harrison, 71 W. Va.
217, 47 L. R. A. N. S.) 870, 76
S. E. 346; Coleman v. Foster, 1
Hurlst. & N. 27 (lease).
So it is revoked by the con-
veyance of a right of user in
the land the exercise of which
is inconsistent with the enjoy-
ment of the license. Salinger v.
North American Woolen Mills Co.,
70 W. Va. 151, 73 S. B. 312; Archer
v. Chicago M. & St. P. R. Co.,
41 Mont. 56, 137 Am. St. Rep. 692,
108 Pac. 571.
71. DeHaro v. United States, 5
Wall. (U. S.) 599, 18 L. Ed. 681;
Jensen v. Hunter, 108 Cal. xvii,
41 Pac. 14; Lambe v. Manning,
171 111. 612. 49 N. E. 509; Spacy
V. Evans, 152 Ind. 431, 52 N. E.
605; Hodgkins v. Farrington, 150
Mass. 19, 5 L. R. A. 209, 15 Am.
St. Rep. 168, 22 N. E. 73; Estelle
V. Peacock, 48 Mich. 469, 12 N. W.
659; East Jersey Iron Co. v.
Wright, 32 N. J. Eq. 248; Eggles-
ton v. New York & H. R. Co.. 35
Barb (N. Y.) 162; Chavez v. Tor-
lina, 15 N. Mex. 53, 99 Pac. 690;
Bridges v. Purcell, 18 N. C. 492;
Caledonian etc. School v. Kent, 86
Vt. 151. 84 Atl. 26; Hazelton v.
Putnam, .3 Chand. (Wis.) 117, 3
Pin. 107, 54 Am. Dec. 158.
72. See note in 14 Harv. Law
Rev. at p. 73.
73. Ante, this section, notes 68,
69.
74. Ante, this section, notes 70,
7].
75. Reed v. Merrefield. 10 Mete.
155; Gilmore v. Wilson, 53 Pa.
1220 Real Peoperty. [§ 349
condition which has been violated. "^^ It may also come
to an end by reason of the expiration of a reasonable
time for acting thereunder/^ or by reason of its aban-
donment by the licensee.''^ And a license being personal
to the licensee, it becomes inoperative upon his death.'''*
A license not being assignable, an attempted as-
signment by the licensee of his rights thereunder has
been regarded as bringing the license to an end,'^ the
courts following in this regard the analog\' of a
tenancy at will. It hag also been regarded as terminated
by a sale of the land, even prior to a conveyance in
pursuance thereof, the purchaser being let into posses-
sion,^" and also by the setting off of the land under
execution against the owner.^^
(g) Effect of termination. The termination of
a license, by revocation or othei'wise, while it pre-
cludes any subsequent acts on the authority of the
license, does not affect the validity of acts previously
done thereunder.''- If the licensee, in the course of the
194; Oesting v. New Bedford. 210 41 Am. Rep. 720, 11 N. W. 265;
Mass. 396, 96 N. E. 1095; Glynn Chandlery. Spear. 22 Vt. 388.
V George, 20 N. H. 114. 79. Bates v. Duncan, 64 Ark.
76 Pratt v. Ogden, 34 N. Y. 339, 62 Am. St. Rep. 190 42 S.
20. W. 410; Fischer v. Johnson, 106
77. Atite, § :M9(c), note 36. Iowa, 181, 76 N. W. 658; Blals-
78. East Jersey Iron Co. v. dell v. Portsmouth etc. R. Co., 51
Wright, 32 N. J. Eq. 248; Lake N. H. 483; Dark v. Johnston, 55
Erie R. Co. v. Michener, 117 Ind. Pa. 164, 93 Am. Dec. 732; Polk v.
465, 20 N. E. 254. Carney, 17 S. Dak. 436, 97 N. W.
78a. Prince v. Case, 10 Conn. 360.
375, 27 Am. Dec. 675; Ruggles v. 80. Bruley v. Garvin, 105 Wis.
Lesure, 24 Pick. (Mass.) 187; Page 625, 48 L. R. A. 839, 81 N. W.
V. Gaskill, 84 N. J. L. 615, 87 1038.
Atl. 460; Hazelton v. Putnam, 3 81. Taylor v. Gerrish, 59 N. H.
Chand. (Wis.) 117. 3 Pin. 107, 54 5C9.
Am. Dec. 158. 82. Foot v. New Haven etc. Co.,
As to the effect, in case of a 23 Conn. 214; Owens v. Lewis, 46
license given to two or more per- Ind. 488, 15 Am. Rep. 295; Stevens
sons jointly, of the death of one, v. Stevens, 11 Mete. (Mass.) 251,
see Rust v. Conrad, 47 Mich. 449, 45 Am. Dec. '203; Blaisdell v.
<^ 349] Easements. 1221
exercise of his rights under the license, has placed
anything on the land, he is entitled, upon revocation
of the license, to a reasonable time within which to
remove it.^^
There is no obligation upon the licensee, on revoca-
tion of the license, to restore the land to the condition
in which it was before he made changes therein or
placed structures thereon, under authoritv of the
license.-^
The question of the right to revoke a license is
entirely distinct from the question whether, in revoking
it, the licensor violates a contract on his part, express
or implied, not to revoke it. Though the revocation is
perfectly valid and effective, the licensor may be liable
in damages for having revoked it.'*'^
(h) Assignment of license. A license creates
a privilege personal to the licensee, wliich cannot
ordinarily be transferred by him to another.''" If the
Portsmouth etc. R. Co., 51 N. H. 400; Cornish v. Stubbs, L. R. 5 C.
483; Freeman v. Hadley, 32 N. J. P. 334. See Wilson v. Tavener
L. 225; Great FaUs Waterworks (1901) 1 Ch. 578; Hodgkins v.
Co. V. Great Northern Rwy. Co., 21 Farrington, 150 I\Iass. 19, 15 Am.
Mont. 487, 54 Pac. 963; Pratt v. St. Rep. 168, 5 L. R. A. 209, 22
Ogden, 34 N. Y. 20; Pursell v. N. E. 73.
Stover, 110 Pa. 43, 20 Atl. 403; 84. Liggins v. Inge. 7 Bing.
Merri weather V. Dixon, 28 Tex. 15; 682; Hodgkins v. Farrington, 150
Lockhart v. Geir, 54 Wis. 133, 11 Mass. 19, 15 Am. St. Rep. 168,
N. W. 245; Winter v. Broekwell, 58 L. R. A. 209, 22 N. E. 73.
8 East 308. 85. Kerrison v. Smith, (1897)
83. Brower v. Wakeman, 88 2 Q. B. 445; McCrea v. Marsh, 12
Conn. 8, 89 Atl. 913; Shipley v. Gray (Mass.) 211; Goldman v.
Fink, 102 Md. 219, 62 Atl. 316; Beach Front Realty Co., 83 N. J.
Ingalls V. St. Paul, M. & M. R. L- 97, 83 Atl. 777; Pollock. Torts.
Co., 39 Minn. 479, 12 Am. St. Rep. (6th Ed.) .'iG3.
476, 40 N. W. 524, Great Falls 86. Wickham v. Hawker. 7
Waterworks Co. v. Great Northern Mees. & W. 63; Ackroyd v. Smith,
R. Co., 21 Mont. 487, 54 Pac. 963; 10 C. B. 188; Prince v. Case, 10
Putnam v. State, 132 N. Y. 344, Conn. 375, 27 Am. Dec. 675; .Ten-
30 N. E. 743; Wright v. Brown, kins v. Lykes, 19 Fla. 148. 45
163 Mo. App. 117, 145 S. W. 518; Am. Rep. 19; Dawson v. Western
Mellor V. Watkins, L. R. 9 Q. B. Md. R. Co., 107 Md. 70. 14 L. R.
1222 Real Property. [§349
license is coupled with an interest,'^*''' however, it en-
ures to the benefit of one to whom the interest is as-
signed,^^ that is, as the original grantee of things upon
or in the land may enter to remove them, so any person
acquiring title to them from him may do so. And a
license, so called, which is irrevocable by reason of
expenditures by tlie licensee ©n the strength thereof,®*
is presumably assignal)le, in the sense that the privilege
of making the particular use of another's land passes
as incident to the transfer of land of the licensee for
the benefit of which the license was given,®^ that is,
as an appurtenant easement.
In one case it was held that the benefit of a license,
contained in an instrument of lease, enabling the lessor
to enter for a certain purpose, passed to his transferee
and was enforcible against an assigTiee of the lessee, the
instrument expressly providing that the stipulations
should extend to and be binding on the assignees of
the respective parties,*^^ and in another case it was
held to pass to the lessor's transferee without any
mention of assigns.^*''' Such a stipulation, in terms
giving the lessor a right to enter on the land, if re-
garded as a contract to the effect that the lessor or his
transferee should be allowed to enter, may well pass on
A. (N. S.) 809, 126 Am. St. Rep. Mees. & W. 63; Heflin v. Bingham,
337, 15 Ann. Cas. 678, 68 Atl. 56 Ala. 566, 28 Am. Rep. 776;
301; Ward v. Rapp, 79 Mich. 469, Ely v. Cavanaugh, 82 Conn. 681.
44 N. W. 934: Fuhr v. Dean. 26 74 Atl. 1122; Sawyer v. Wilson, 61
Mo. 116, 69 Am. Dec. 484; Cowles Me. 529; Wiseman v. Eastman. 21
V. Kidder, 24 N. H. 364. 57 Am. Wash. 163, 57 Pac. 398.
Dec. 287; Blaisdell v. Portsmouth. 88. Ante, § 349(d), notes 44-51.
G. F. & C. R. R., 51 N. H. 483: 89. See Russell v. Hubbard. 59
Mendenhall v. Klinck, 51 N. Y. 111. 335.
246. But St. John v. Sinclair, 89a. Marks v. Gartside, 16 111.
108 Minn. 274, 122 N. W. 164 App. 177.
appears to be contra. 89b. Brewster v. Gracey. 65
86a. Ante, § 349(h), notes 55- Kan. 137, 69 Pac. 199. And see
60. Stebbins v. Demorest, 138 Mich.
87. Bassett v. Maynard, Cro. 297, 101 N. W. 528.
Eliz. 819; Wickham v. Hawker, 7
^ 350]
Easements. 1'--3
a transfer of the. reversion, and be enforcible against
an assignee of the leasehold, as a covenant running
with the land, so as to justify a recovery of damages
for a breach thereof, and presumably a court of equity
would in such case regard what is in terms merely a
permission to enter as a contract for an easement of
entry to endure for the life of the lease, and as such
capable of specific enforcement by means of an in-
junction to prevent any interference with the exercise
of the right of entry by the lessee or his assignee.
§ 350. Easements in gross and appurtenant. An
easement ordinarily exists for the benefit of the owner
of some particular land, it belonging to him as an in-
cident of his ownership of the land. In other words,
there is not only a ''servient" tenement, subject to
the easement, but also a "dominant" tenem.ent, in
favor of which the easement exists. And the easement,
to be thus "appurtenant" to a dominant tenement,
must be such that it conduces to the beneficial use of
such tenement.^^ For instance, one cannot have a right
of way over another's land, appurtenant to one's own
land, except as it is available for going to or from
the latter land.
In England it has been judicially asserted that an
easement is always appurtenant, that is, that one can-
not have an easement which belongs to him personal-
ly, apart from his ownership of particular land.^^
90. Ackroyd v. Smith, 10 C. B. conveyance by the owner of the
164; Hill V. Tupper, 2 Hurl. & C. easement.
121; Linthicum v. Ray, 9 Wall. It Is immaterial that the ease-
(U. S.) 241; Moore v. Crose, 43 ment incidentally benefits land
Ind. 30; Wh'aley v. Stevens, 21 S. other than the tenement to which
C. 221, 27 S. C. 549, 4 S. E. 145. it is appurtenant. Simpson v. God-
But in Perry v. Pennsylvania R. manchester, L. R. (1897) App. Cas.
Co., 55 N. J. Law 178. 26 Atl. 696. See 10 Columbia Law Rev.
829, it is held that an easement at p. 74.
may be made appurtenant merely 91. Rangeley v. Midland Ry.
by language to that effect in a Co., 3 Ch. App. 306; Ackroyd v.
V224:
Eeal. Property.
[§ 350
It appears, however, that ovoii there one niay have a
riglit analogous to an easement, a personal right as to
the nser of i^articular laud, not revocable at the pleasure
of the land owner, ^- and whether this is called an ease-
ment in gross, a right analogous to an easement, or a
right of user, appears to be entirely immaterial. In
this country the possibility of the existence of a person-
al privilege in the nature of an easement or, as It is us-
ually termed, of an "easement in gross," has been
freely recognized ^^.
The dominant tenement. Tliere is no necessity
that the dominant tenement, to which the easement is
appurtenant, should adjoin the servient tenement,
Smith, 10 C. B. 164: Hawkins v.
Rutter. 61 L. J. Q. B. 146.
92. Mounsey v. Ismay. 3 Hurlst.
& C. 498 ; Shuttleworth v. Le Flem-
ing. 19 C. B. N. S. 695; Great
Western Rwy. Co. v. Swindon etc.
Rwy. Co., 22 Ch. Div. at pp. 706,
707.
Ways in gross are referred to
in the earliest English law dic-
tionary. Termes de la Ley (1629)
under chimin: Doddridge, J.,
in W. Jones 127; by Chief Baron
Gilbert in his work on Uses at
p. 281. These references are from
an article by Charles Sweet, Esq.,
in 24 Law Quart. Rev. at p. 260.
A way in gross was assumed to
have a legal existence In Sen-
house V. Christian. 1 Term. Rep.
5t".0.
93. Wagner v. Hanna, 38 Cal.
Ill, 99 Am. Dec. 354; Willoughby
V. Lawren-e, 116 111. 1, 56 Am.
Rep. 758. 4 N. E. 356; Engel v.
Ayer. 86 Me. 448. 27 Atl. 352: Good-
rich v. Burbank, 12 Allen (Mass.)
459; A?nidon V. Harris. 113 Mass.
59 ; Wilder v. Wheeler, 60 X. H. 351 ;
Shreve v. Mathis. 63 N. J. Eq. 170,
52 Atl. 234; Goldman v. Beach
Front Realty Co., 83 N. J. 97, 83
Atl. 777; Mayor, etc.. of the City
of New York v. Law, 125 N. Y.
380, 26 N. E. 471; Poull v. Mockley,
33 Wis. 482.
That an easement of diverting
water from or across another's
land may be in gross, see Ring
V. Walker. 87 Me. 550, 33 Atl. 174;
Goodrich v. Burbank, 12 Allen
(Mass.'k 459: Hail v. Ionia, 38
Mich. 423; Wentworth v. Philpot,
60 X. H. 193; Talbit v. Joseph.
79 Or 309, 155 Pac. 184; Columbia
Water Power Co. v. Columbia Elec.
St. Rwy.. 43 S. C. 154. 20 S. E.
1002.
In Myers v. Berven. 166 Cal. 484,
137 Pac. 260, a right of way. not
apparently created for the benefit
of any particular land, was re-
garded as assignable because, be-
ing "distinctly of an easement
over the soil upon a defined
route," it was an easement, not in
gross, but appurtenant. The
opinion does not explain how an
§ 350]
Easements.
1225
which is siihject to the easeniont,^^ though obviously
the two tenements ordinarily do adjoin. There are, how-
ever, statements to be f ound,^'"' and at least one decision,*^"
that a risht of way cannot be appurtenant to land
unless it has one of its termini upon the land to which
it is claimed to be appurtenant, a view which is ap-
parently not in harmony with the statement that the
dominant and servient tenements need not adjoin.
Why one terminus of a way must be upon the domi-
nant tenemient, is not explained.
It has been asserted that a way, in order to be ap-
purtenant to land, must be ''essentially necessary" to the
enjoyment of the land.**® If this statement means an}'-
thing more tlian that the way must conduce to the ad-
vantage of such land, it is, it is conceived, erroneous.
It is a question whether an easement can be appur-
tenant to an incorporeal hereditament, whether for in-
stance, a right of way over the land of A can exist
as appurtenant to, and for the purpose of exercising.
easement can be appurtenant in
the absence of a dominant tene-
ment.
94. Guthrie v. Canadian Pac. R.
Co., 27 Ont. App. 64; Graham v.
Walker, 78 Conn, 130, 2 L. R. A. N.
S. 983, 112 Am. St. Rep. 93, 61
Atl. 98; GoodwiUie Co. v. Com-
monwealth Electric Co., 241 111.
42, 89 N. E. 272; Jobling v. Tiittle,
75 Kan. 351. 9 L. R. A. X. S.
960, 89 Pac. 699; Witt v. Jeffer-
son, 13 Ky. Law Rep. 746, 18 S.
W. 229; Cady v. Springfield Water-
works Co., ]:!4 N. Y. 118, 31 N.
E. 245; Rieffler v. Wayne Storage
Water Power Co., 232 Pa. 282, 81
!A.tl. 300; Perrin v. Oarfiel'l, 37
Vt. 304.
95. Washburn, Easements (4th
Ed.) 257 {Hcmhle); Garrison v.
Rudd, 19 111. 558; Sanxay v. Hun-
ger, 42 Ind. 44. See Lathrop v.
Eisner, 93 -Mich. 599, 53 N. W.
791; Kershaw v. Burns, 91 S. Car.
129, 74 S. E. 378.
96. Whaley v. Stevens. 21 S.
Car. 223.
97. That it need not, see Gra-
ham V. Walker, 78 Conn. 130, 112
Am. St. Rep. 93, 2 L. R. A. N. S.
983, 61 Atl. 98; GoodwiUie Co.
V. Electric Co., 241 111. 42, 89 N.
E. 272; Witt v. Jefferson, 13 Ky.
L Rep. 746, 18 S. W. 229; Case
of Private Road, 1 Aslini. (Pa.)
417.
98. Washburn, P^asements, (4th
Ed.) 257; Moore v. Crose, 4.'! Ind.
30; Whaley v. Stevens, 27 S. Car.
549, 4 S. E, 145; Fish?r v. Fair, 34
S. Car. 203, 14 L. R. A. 33;!, 13
S. E. 470.
1226
EeAL. PKOPEilTy.
[§ 350
a privilege in gross of fishing or taking minerals on the
land of B. There is in England a dictum in favor of the
view that an easement may thus appertain to an incor-
poreal hereditament,^ ^'^ and also a dictum to the con-
trary.^^'^
Transferability of easement. An easement in
gross has occasionally been regarded as susceptible of
voluntary transfer,*^^ and as passing by descent,^ pro-
vided as least the language used in its creation shows
an intention to that effect,^ But more frequently such
an easement has been regarded as so purely personal
to the original grantee as to be incapable of voluntary
or involuntarv transfer.^ Considerations in favor of
98a. Hanbury v. Jenkins, L. R.
2 Ch. 401. There is an assumption
to this effect by Sharswood, J., in
Tinicum Fishing Co. v. Carter, 61
Pa. St. 21, 100 Am. Dec. 597.
98b. Atty. Gen. v. Copeland, L.
R. (1901) 2 K. B. 101. See Gale,
Easements (8th Ed.) 12; Goddard,
Easements (6th Ed.) 12.
99. Goodrich v. Burbank, 12
Allen (Mass.) 459, 90 Am. Dec.
161; French v. Morris, 101 Mass.
68; Amidon v. Harris, 113 Mass.
59; Pinkum v. Eau Claire, 81 Wis.
301, 51 N. W. 550; Poull v. Mock-
ley, 33 Wis. 482; Percival v. Wil-
liams, 82 Vt. 531, 74 Atl. 321. See
Standard Oil Co. v. Buchi, 72 N.
J. Eq. 492, 66 Atl. 427.
In Engel v. Ayer, 85 Me. 448, 27
Atl. 352, such a right was regarded
as transferable, apparently on the
theory that, because it involved a
possibility, in the particular case,
of monopolizing a large part of
the servient tenement and was pe-
cuniarily profitable, it was equiv-
alent to a profit a prendre. This
view is adopted from Washburn,
Easements (4th Ed.) 13. The
same view is asserted, apparently,
by Walworth Ch., in Post v. Pear-
sail, 22 Wend. 425; Sharswood J.,
in Tinicum Fishing Co. v. Carter,
61 Pa. St. at p. 40.
1. Goodrich v. Burbank, 12
Allen (Mass.) 459, 90 Am. Dec.
161 ; Ring v. Walker, 87 Me. 550,
33 Atl. 174; Percival v. Williams,
82 Vt. 531, 74 Atl. 321.
2. In Field v. Morris, 88 Ark.
148, 114 S. W. 2061 Wilder v. Wheel-
er, 60 N. H. 351, it was held that
it was not transferrable because
the language used in its creation
did not show an intention to
that effect. And in Lynch v.
White. 85 Conn. 545. 84 Atl. 326,
it was held that, there being no
words of limitation extending it
to heirs, and no facts showing
such an intention, it endured only
for the life of the person in favor
of whom it was created.
3. Freed v. Morris, 88 Ark. 148,
114 S. W. 206; Wagner v. Hanna.
38 Cal. Ill, 99 Am. Dec. :'.54; Hall
V. Armstrong, 53 Conn. 554, 4 Atl.
^ 350] Easements. 1227
the latter view have been suggested as follows: "If
such right be an inheritable estate, how will the heirs
take? In severalty, in joint tenancy, coparcenary, or as
tenants in common? If not in severalty, how can their
interests be severed! If it be assignable, what limit
can be placed on the power of alienation? To whom
and to how many may it be transferred?"^ Never-
theless it is somewhat difficult to see why, if, as appears
to be the case,^ a profit in gross is capable of passing
by voluntaiy transfer and by descent, an easement in
gross should not be so capable. The courts could ef-
fectually protect the owner of the servient tenement
against an assigimient to such a number of persons
as unduly to increase the burden thereon, and the heirs
might w^ell be regarded as holding in that fonn of
cotenancy w^hich exists in case of the descent of land
itself.
An appurtenant easement is regarded as so closely
annexed to the dominant tenement that it passes
prima facie upon a conveyance of such tenement with-
out express mention,''^ and regardless of whether the
113 (dictum); Louisville etc. 6. Lide v. Hadley, 36 Ala. 627.
R. Co. V. Koelle, 104 111. 455; 76 Am. Dec. 338; Quiiilan v. Noble,
Hoosier Stone Co. v. Malott, 130 75 Cal. 250, 17 Pac. 69; Goodwin
Ind. 121, 29 N. E. 412, {dictum); v. Bragaw, 87 Conn. 31, 86 Atl.
Winston v. Johnson, 42 Minn. 398, 6G8; Taylor v. Dyches, 69 Ga. 455;
45 N. W. 958 (dictum); Tinicum Tinker v. Forbes, 136 111. 221, 26
Fishing Co. v. Carter, 61 Pa. 21, N. E. 503; Moore v. Grose, 43 Ind.
100 Am. Dec. 597; Comm. v. Zim- 30; Cassens v. Meyer, 154 Iowa,
merman, 56 Pa. Suiper Ct. 311; 187, 134 N. W. 543 (warranty
Cadwalader v. Bailey, 17 R. I. 495, deed) ; Wendell v. Heim, 87 Kan.
14 L. R. A. 300, 23 Atl. 20; Fisher 136, 123 Pac. 869; Hammond v.
V. Fair, 34 S. Car. 203, 13 S. B. Eads, 146 Ky. 162, 142 S. W. 379;
470; Kershaw V. Burns, 91 S. Car. Dority v. Dunning, 78 Me. 381,
129, 74 S. E. 378; Salem Capital 6 Atl. 6; Douglass v. Riggin, 123
Flour Mills V. Stayton Water Ditch Md. 18, 90 Atl. 1000; Barnes v.
& Canal Co. (C. C.) 33 Fed. 14G. Lloyd, 112 Mass. 224; Willets v.
4. Boatman v. Lasley, 23 Ohio Langhaar, 212 Mass. 573, 99 N.
St. 614, per Mcllvaine, J. E. 466; Dulce Realty Co. v. Stead
5. Post, § 382, note 19. Realty Co., 245 Mo. 417, 151 S.
1228 Keal Peoperty. [§ 350
conveyance refers to ''appurtenances."' Likewise a re-
covery in ejectment of the dominant tenement involves
a recovery of an easement appurtenant thereto/^
Since an easement appurtenant is intended to be
exercised only for the benefit of and in connection with
the dominant tenement, it cannot be separated there-
from by its transfer to a person other than the owner
of such tenement.^ Such a separation would involve
its conversion into an easement in gross.
Duration of easement. An appurtenant ease-
ment usually exists in favor of one having an estate in
fee simple in the dominant tenement, but in so far as
the easement is intended to endure so long only as
the purpose of its creation can be regarded as still
existent,^*^ the possible duration of the easement cor-
responds to that of an estate in fee determinable rather
than to that of an estate in fee simple. And occas-
sionally the language of the grant creating an ease-
ment expressly provides that it is to endure only
W. 415; Sweetland v. Olseii, 11 & Aid. 661.
Mont. 27, 27 Pac. 339; Spaulding 9. Ackroyd v. Smith, 10 C. B.
V. Abbott, 55 N. H. 423; Voorhees 164; Moore v. Crose, 43 Ind. 30;
V. Burchard, 55 N. Y. 58; Shields Baker v. Kenney, 145 Iowa, 638.
V. Titus, 46 Ohio St. 528, 22 N. E. 139 Am. St. Rep. 456, 12 N. W.
II'I; Jackson v. Trullinger, 9 Ore. 901; Ring v. Walker, 87 Me. 550,
393; Ruhnke v. Aubert, 58 Ore. 6, 33 Atl. 175; Wilson v. Ford, 209
113 Pac. 38; Rhea v. Forsyth, 37 N. Y. 186, 102 N. E. 614; Wood
Pa. St. 503, 78 Am. Dec. 441; v. Woodley, 160 N. C. 17, 41 L. R.
Chambersburg Shoe Mfg. Co. v. A. (N. S.) Ii:i7, 75 L. E lU:
Cumberland Valley R. Co., 240 Pa. Boatman v. Lasley, 23 Ohio St.
St. 519, 87 Atl. 968; Re Barhous- 614; Cadwalader v. Bailey, 17 R.
en, 142 Wis. 292, 124 N. W. 649. I. 495, 14 L. R. A. 300. 23 Atl.
7. Shelby v. Chicago & E. I. R. 20; Reise v. Enos. 76 Wis. 634, 8
Co. 143 111. 385, 32 N. E. 438; L. R. A. 617, 45 N W. 414.
Agnew V. Pawnee City, 79 Neb. That the attempted transfer of
603, 113 N. W,. 236; Smith v. the easement apart from the dom-
Garbe, 86 Neb. 94, 124 N. W. 921. inant tenement does not extinguish
8. Callaway v. Forest Park the easement, see a suggestive
Highlands Co., 113 Md. 1, 77 Atl. note in 20 Harv. Law Rev. 136.
141; Crocker v. Fothergill, 2 Barn. 10. Post, § 372.
^ 350]
Easements.
1229
until a certain event occurs.^ ^ An appurtenant ease-
ment may also, as well as an easement in gross, be
for life, as having been intended to endure only so
long as the grantee's life estate in the dominant tene-
ment endures,^- or as having been created by one having
only a life estate in the land in which it is created. The
easement may be for years only.^^
Determination of class. Whether, in any par-
ticular case, an easement created by grant is an
easement appurtenant or an easement in gross, is to be
determined by the language of the grant as construed in
the light of tiie surrounding circumstances.^"'' That the
easement is of value to particular land owned by the
grantee of the easement,^* or that it is valueless except
as exercised for the benefit of such land,^^ tends to
11. See e. g. Arbaugh v. Alex-
ander, 164 Iowa, 635, 146 N. W.
747; Wooding v. Michael, 89 Conn.
704, 96 Atl. 170.
12. See Hoffman v. Savage, 15
Mass. 130; Goodall v. Godfrey, 53
Vt. 219, 38 Am. Rep. 671; Pym v.
Harrison, 33 Law Times, 796.
13. Davis V. Morgan, 8 B. & C.
8. See Booth v. Alcock, L. R. 8
Ch. 663; Newhoff v. Mayo, 48 N.
J. Eq. 619, 27 Am. St. Rep. 455, 23
Atl. 265.
13a. Hopper v. Barnes, 113 Cal.
636, 45 Pac. 874; Durkee v. Jones,
27 Colo. 159, 60 Pac. 618; Blan-
chard v. Maxson, 84 Conn. 429, 80
206; Cassens v. Meyer, 154 Iowa,
187, 134 N. W. 543; Hammond v.
Eads, 146 Ky. 162, 142 S. W. 379;
Dennis v. Wilson, 107 Mass. 591;
Kent Furniture Mfg. Co. v. Long,
111 Mich. 383, 69 N. W. 657;
Liederding v. Zignego, 77 Minn.
421, 77 Am. St. Rep. 677, 80 N. W.
360; Smith v. Garbe, 86 Neb. 94,
124 N. W. 921; Ruhnke v. Aiibert,
2 R. P.— i
53 Ore. 6, 113 Pac. 38; Cadwal-
ader v. Bailey, 17 R. I. 495, 23
Atl. 20.
14. Webb V. Jones, 163 Ala. 637,
50 S. 887; Durkee v. Jones, 27
Colo. 159, 60 Pac. 618; Blancliard
V. Maxson, 84 Conn. 429, 80 Atl.
206; Cherokee Mills v. Standard
Cotton Mills, 138 Ga. 856, 76 S.
E. 373; Goodwillie Co. v. Com-
monwealth Electric Co., 241 111.
42, 89 N. E. 272; Cassens v. Meyer,
154 Iowa, 181, 134 N. W. 543;
Smith v. Ladd, 41 Me. 314; Green-
wood Lake & P. J. R. Co., v. New
York & G. L. R. Co., 134 N. Y.
435, 31 N. E. 874; Smith v. Garbe,
86 Neb. 91, 136 Am. St. Rep. 674,
20 A. & E. Ann. Cas. 1209, 124
N. W. 921 ; Ruffin v. Seaboard Air
Line Rwy.. 151 N. Car. 330, 66
S. E. 317; Reise v. Enos, 76 Wis.
634, 8 L. R. A. 617, 45 N. W.
414; Jones v. Island Creek Coal
Co., 79 W. Va. 532, 91 S. E. 391.
15. Hopper v. Barnes, 113 Cal.
636, 45 Pac. 874; Schmidt v.
1230
Real. Pboperty.
"§ 350
sliow that it is appurtenant to such land. The fact
tnat, after the creation of the easement, it was exercised
oxrhisively in connection with particular property be-
Ionising to tlie grantee of the easement would seem also
to tend to indicate that it is appurtenant thereto.^®
That the grant of an easement is in terms in favor of
one, liis heirs and assigns, does not tend to show that
it is personal rather than appurtenant,^' nor, on the
other hand, does the omission of such words ordinarily
have such an effect. ^^ That it is granted to one for life
or during his occupation of particular land has been
r(»oai-c]ed as showing an intention to create a mere per-
sonal right. ^'^'^
The courts tend to regard an easement as ap-
purtenant rather than as in gross,*" and accordingly, in
Brown, 226 111. 590, 80 N. E. 1071;
Cassens v. Meyer, 154 Iowa, 187.
134 N. W. 543; Dennis v. Wilson,
107 Mass. 591; Lathrop v. Elsnor.
93 Mich. 593, 53 N. W. 791; Lid-
gerding v. Zignego, 77 Minn. 421,
77 Am. St. Rep. 677, 80 N. W.
360; Cadwalder v. Bailey, 17 R.
I. 495, 14 L. R. A. 300, 23 Atl.
20.
16. Ruhnke v. Aubert, 58 Ore.
6, 113 Pac. 38; Wesley v. M. N.
Cartier & Sons Co., 30 R. I. 40:'..
75 At. 626; L-dgerding v. Zigneg"^,
77 Minn. 421, 77 Am. St. Rep. 677,
80 N. W. 360. And see Winston
V. Johnson, 42 Minn. 398, 45 N.
W. 958. But see Wentworth v.
Philpot, 60 X. H. 193.
17. Callaway v. Forest Park
Highlands Co., 113 Md. 1. 77 Atl.
141; Parsons v. New York N. H.
& H. R. Co., 216 Mass. 269, 103
N. E. 693; Mitchell v. D'Olier, 68
N. J. L. 375, 59 L. R. A. 949,
53 Atl. 467. Rather does such lan-
guage indicate an intention that the
easement shall be appurtenant.
Hopper V. Barnes, 113 Cal. 636, 45
Pac. 874; Moll v. McCauley, 83
Iowa, 677, 50 N. W. 216: French
V. Williams, 82 Va. 462, 4 S. E.
591.
18. Dennis v. Wilson. 107 Mass.
591; Teachout v. Capital Lodge
etc., 128 Iowa, 384, 104 N. W. 440;
Cleveland C. C. & St. L. Rwy. Co.
V. Griswold, 51 Ind. App. 497, 97
N. E. 1030; United States Pipe
Line Co. v. Delaware L. & W.
R. Co., 62 N. J. L. 254. 42 L.
R. A. 572. 41 Atl. 759: Contra
Comm. V. Zimmerman, 56 Pa.
Super. 311; Wilder v. Wheeler. 60
N. H. 351. Compare Lidgerding v.
Zignego, 77 Minn. 421. 77 Am. St.
Rep. 677, SO N. W. 360.
18a. Estabrooks v. Estabrooks,
91 Vt. 515, 101 Atl. 584.
19. McMahan v. Williams. 79
Ala. 288; Gardner v. San Gabriel
Valley Bank, 7 Cal. App. 106. 9;^
Pac. 900; Blanchard v. Maxson,
84 Conn. 489, 80 Atl. 206; Chero-
§ 350]
Easements.
1231
the ordinary case, a reservation of an easement on a
conveyance of part of one's land will be regarded as of
an easement appurtenant to the land retained/^'"' while
an easement in the land retained, created by the in-
strument by which land is conveyed, will ordinarily be
appurtenant to the land conveyed.^^'^ But a different
view has been indicated in one case, to the eifect that if
the grant of an easement is by a clause entirely separate
from that by which the land is conveyed, though
by the same instrument, it is to be regarded as in
gVoss.^^'' In one case the fact that the grant of the
easement was on the sarnie day on which land had been
granted was regarded as showing that it was appurte-
nant to such land/^*^
The fact that one to whom there was granted the
privilege of taking water from another's land had a
life estate only in neighboring land has been regarded
as tending to show that the privilege was not ap-
kee Mills v. Standard Cotton Mills.
138 Ga. 856, 76 S. E. 373; Whit-
aker v. Harding. 256 111. 148, 99
N. E. 945; Lucas v. Rhodes, 48
Ind. App. 211, 94 N. E. 914; Pres-
byterian Church of Osceola v. Har-
ken, 177 Iowa, 195, 158 N. W.
692; Hammond v. Eads. 146 Ky.
162, 142 S. W. 379; Willets v.
Langhaar, 212 :\Iass. 573, 99 N. E.
466; Lidgerding v. Zign go, 77
Minn. 421. 77 Am. St. Rep. 677,
80 N. W. 3G0: Ruhnke v. Aubert,
58 Ore. 6, 113 Pac. 38; Smith v.
Garbe, 86 Neb. 94, 124 N. W. 921;
WSlson V. Ford, 209 N. Y. 186,
102 N. E. 614; Ruhnke v. Aubert,
58 Ore. 6, 113 Pac. 38; Calwalader
V. Bailey, 17 R. I. 495, 14 L. R. A.
300, 23 Atl. 20; French v. Wil-
liams, 82 Va. 462, 4 S. E. 591;
Spensley v. Valentine, 34 Wis. 154.
But see Wilder v. Wheelor, 60 N.
H. 351; Comm v. Zimmerman, 56
Pa. Super. 311.
19a. Winthrop v. Fairbanks, 41
Me. 307; Smith v. Ladd, 41 Me.
316; Bowen v. Conner, 6 Cush.
(Mass.) 132; Dennis v. Wilson,
107 Mass. 591; Lathrop v. Eisner,
93 Mich. 599; Winston v. .Johnson,
4? Minn. 398, 45 N. W. 958; Pres-
byterian Church of Osceola v.
Harken, 177 Iowa, 195, 158 N. W.
692.
19b. Kuecken v. Voltz, 110 111.
264; Stearns v. Mullen. 4 Gray
(Mass.) 151; Blood v. Millard, 172
Mass. 65, 51 N. E. 527; Gunson
V. Healy, 100 Pa. 42; Reise v.
Enos, 76 Wis. 634, 8 h. R. A. 617,
45 X. W. 414.
19c. Shreve v. Mathis, 63 N.
J. Eq. 170. 52 Atl. 234.
19d. Moll V. McCauley, 83 Iowa.
677. 50 N. W. 216.
1232 Eeal Pkoperty. [§ 350
pnrtenaiit to such land.^^^ In tlie same state it has
been said that the fact that the gift of a right of way
to one who owned land in fee was expressed to be for
life only might indicate that the way was in gross and
not appurtenant to his land.^'^^ If the language of the
grant or reservation of an easement is such as itself
to show that the easement was created solely for ex-
ercise in connection with particular land, as in the
case of a right of way specified to be to and from such
land, it is appurtenant. ^^^
The fact that the instrument by which a right of
way is created fails to refer in any way to neighboring,
land owned by the beneficiary of the grant has occasion-
ally been regarded as showing that the right is not
intended to be appurtenant to such land, but is in
gross. ^^'^ But there are a greater number of decisions
which assert, expressly or by implication; a contrary
view, to the effect that the dominant tenement need not
be expressly referred to.^**
In the case of an easement by prescription, whether
the easement is appurtenant or in gross is to be
determined by the consideration whether the user
of the servient tenement throughout the prescriptive
period was for the benefit of, and in connection A\'ith,
19e. Amidon v. Harris, 113 4 S. E. 591; Thorpe v. Brumfitt,
Mass. 59. L. R. 8 Ch. 650.
19f. Dennis v. Wilson, 107 19h. Wag'ner v. Hanna. .38 Cal.
Mass. 591. See Lidgerding v. Zig- ill, 99 Am. Dec. 354; Metzger v.
nego, 77 Minn. 421, 77 Am. St. Holwick, 17 Oliio Circ. Ct. 605.
Rep. 677, 80 N. W. 360; Mc- 20. Hopper v. Barnes, 113 Cal.
Daniel v. Walker, 46 S. C. 43, 636, 45 Pac. 874; Durkee v. Jones,
24 S. E. 378. 27 Col. 159, 60 Pac. 618; Gold-
19g. Lide v. Hadley, ?S Ala. stein v. Raskin, 271, 111. 249, 111
627, 76 Am. Dec. 338; MendeU v. N. E. 91 (distinguishing Garrison
Delano, 7 Mete. (Mass.) 176; v. Rudd, 19 HI. 558, as having
George v. Cox, 114 Mass. 382; Val- been at law); Dennis v. Wilson,
entine v. Schreiber, 3 N. Y. App. 107 Mass. 591; Salem Capital
Div. 235, 38 N. Y. Supp. 417; Flour Mills v. Stayton Water Ditch
Gunson v. Healy, 100 Pa. St. 42; & Canal Co., 33 Fed. 146.
French v. Williams, 82 Va. 462,
§ 351] Easements. 123o
one particular piece of land, and also of the consider-
ation of its utility in connection wdth sucli land or its
lack of utility apart therefrom.^i
A right of user, given to one of the parties to a
partition of land, over the portion allotted to another
of such parties, has been regarded as appurtenant to
the portion allotted to the former.- -
There are occasional decisions to the effect that one
may acquire, by grant or reservation, an easement to be
exercised in connection with and for the benefit of par-
ticular land which he does not own, in which case, it
seems, the easement is in gross until he acquires such
land, and if and when he acquires it, the easement be-
comes appurtenant to the land.^^*
§ 351. Light and air. As before stated, the owner
of land has no "natural right" to light or air, and can-
not complain that either has been cut off by the erection
of buildings on adjoining land.-"' An owner of land may,
however, acquire, by grant or its equivalent, a right to
have light and air enter a particular window or other
aperture, free from interruption by the owner of ad-
jacent land, and such a right constitutes an easement
in his favor.-^
21. Schmidt v. Brown, 226 111. note 29.
590, 80 N. E. 1071. 24. Turner v. Thompson. 58 Ga.
22. KarmuUer v. Krotz, 18 268, 24 Am. Rep. 497; Keating v.
Iowa, 352; Davenport v. Lamson, Springer, 146 111. 481, 22 L. R. A.
21 Pick. (Mass.) 72; Bowen v 544, 37 Am. St. Rep. 175, 34 N.
Conner, 6 Cush. (Mass.) 132. See E. 805; White v. Bradley. 66 Me.
Hopper V. Barnes, 113 Cal. 636, 254; Janes v. .lenkins, 34 Md. 1,
45 Pac. 874. 6 Am. Rep. 300; Story v. Odin.
22a. North British Railway Co. 12 Mass. 157, 7 Am. Dec. 46;
V. Park Yard Co. (1898) App. Cas. Brooks v. Reynolds, 106 Mass. 31;
643; Amidon v. Harris. 113 Mass. Greer v. Van Meter, 54 N. J. Eq.
59; Percival v. Williams, 82 Vt. 270, 33 Atl. 794; Lattimer v. Liv-
531, 74 Atl. 321; Kalmowski v. ermore, 72 N. Y. 174; Weig-
Jacobowski, 52 Wash. 359, 100 Paf. mann v. Jones, 163 Pa. St. 330,
852. 30 Atl. 198. As to air, see Chas-
23. Ante, § 336, note 4d, § 338, tey v. Ackland (1895) 2 Ch. 389,
123-1: Ee.\l Peoperty. [§ 352
While the owner of land is entitled to have the air
diffused over his land free from pollution by any use
made of neighboring land, this being a natural right,
an infringement of which constitutes a nuisance,-^ the
OAvner of the neighboring land may acquire, by grant or
prescription, an easement consisting of the right to make
such injurious use of his land, or, as it is sometimes said,
he may acquire a right to maintain a nuisance involving
the pollution of air.^^
§ 352. Waters and watercourses. The mutual rights
of adjoining or neighboring owners in regard to water
have been previously considered.^^* These rights may,
however, be suspended or modified in favor of the owner
of one piece of land as against another by the creation
of an easement. So, the owner of land upon a natural
stream may acquire from the owner of land lower down
on the same stream, by grant or prescription, the
privilege of polluting the stream, or of appropriating
what would otherwise be an unreasonable amount of
water,^^ or he may acquire the privilege of obstructing
the flow of the stream so as to flood the land of an
(1897) App. Cas. 155; PoHock, v. Bessey, 49 Me. 539. 77 Am. Dec.
Torts (6th Ed.) 399, note. 271; Warner v. Cushman, 82 Me.
25. See anfe, § 338. 168, 19 AtU 159; Washburn &
26. Goddard, Easements, 265; 2 Moen Mfg. Co. v. Salisbury, 152
Wood, Nuisances, § 704 et seq. Mass. 346, 25 N. E. 724; Smith v.
Sturges V. Bridgman, 11 Ch. Div. City of Sedalia. 152 Mo. 283, 48
852; Dana v. Valentine, 5 Mete. L. R. A. 711, 53 S. W. 907; Lov-
(Mass.) 8; Matthews v. Stillwater erin v. Walker, 44 N. H. 489;
Gas etc. Co., 63 Minn. 493, 65 N. Holsman v. Boiling Spring Bleach-
W. 947. ing Co., 14 N. J. Eq. 335, 346;
26a. Ante, § 339. Provost v. Calder, 2 Wend. (N.
27. Stockport Waterworks Co. Y.) 517; Winchester v. Osborne, 61
V. Potter, 3 Hurl. & C. 300; Wood N. Y. 555; Geer v. Durham Water
V. Waud, 3 Exch. 748; Tyler v. Co., 127 N. C. 349, 37 S. E. 474;
Wilkinson, 4 Mason, 397, Fed. Cas. Talbot v Joseph. 78 Ore. 308, 155
No. 14312; Village of Dwight v. Pac. 184; McCallum v. German-
Hayes, 150 111. 273, 41 Am. St. town Water Co., 54 Pa. St. 40;
Rep. 367, 37 N. E. 218; Crosby Messinger's Appeal, 109 Pa. St.
^ 352]
Easements.
1235
upper proprietor.2^ So, land may be subject to an ease-
ment precluding- the owner thereof from cutting off
percolating water, to the detriment of a neighboring
owner, though otherwise he has the privilege of doing
so f^ or an easement may exist modifying the rights of
adjoining owners as to the discharge or flow of sur-
face waters.''*'
Right to take water from spring. Not infre-
quently the owaier of land on which there is a spring or
well grants to a neighboring land owner the privilege of
285, 4 Atl. 162; Olney v. Fenner,
2 R. I. 211, 57 Am. Dec. 711;
Rood V. Johnson, 26 Vt. 64.
A privilege in a riparian owner
to divert or pollute the water of
the stream is not strictly an ease-
ment in the land of the owner
who suffers by such diversion or
pollution, it has been said, since
it involves no use of the latter's
land, or restriction of its use.
Cockburn, C. J., in Mason v.
Shrewsbury & H. Ry Co., L. R.
6 Q. B. 578; Geer v. Durham
Water Co., 127 N. C. 349; 37 S. E.
474. It does, however, involve the
privilege of doing an act to the
detriment of such land, that is, of
dspleting the water flowing
thereby, and the statement refer-
red to would seen unduly to nar-
row the definition of an easement.
See article by Professor Wesley N.
Hohfield, 27 Yale Law Journ. 66.
28. Wright v. Howard, 1 Sim.
& S. 190; Central Georgia Power
Co. V. Cornwell, 141 Ga. 843, 82
S. E. 24;'.; Ballard v. Struckman,
123 m. 636, 14 N. E. 682; Brook-
ville & M. Hydraulic Co. v. Butler,
91 Ind. 134; Williams v. Nelson, 2:?
Pick. (Mass.) 141, 34 Am. Dec.
45; Tourtellot v. Phelps, 4 Gray
(Mass.) 870: Turner v. Hart, 71
Mich. 128, 15 Am. St. Rep. 243,
38 N. W. 890; Cornwell Mfg Co. v.
Swift, 89 Mich. 503, 50 N. W. 1001;
Swan V. Munch, 65 Minn. 500, 35
L. R. A. 743, 60 Am. St. Rep.
491, 67 N. W. 1022; Winnipiseo-
gee Lake Co. v. Young, 40 N. H.
420; Tabor v. Bradley, 18 N. Y.
113, 72 Am. Dec. 498; State v.
Suttle, 115 N. C. 784, 20 S. E.
725; Bobo v. Wolf, 18 Ohio St.
463; Campbell v. McCoy, 31 Pa.
St. 263; Weed v. Keenan, 60 Vt.
74, 6 Am. St. Rep. 93, 13 Atl.
804.
29. Chasemore v. Richards, 7
H. L. Cas. 349, 2 Gray's Cas. 12;
Whitehead v. Parks, 2 Hurl. & N.
870; Johnstown Cheese Mfg. Co.
V. Veghte, 69 N. Y. 16, 25 Am. Rep.
125; Davis v. Spaulding, 157 Mass.
431, 19 L. R. A. 102, 32 N. E.
650.
30. Wright v. Willams, 1 Mees.
& W. 77; Gregory v. Bush, 64
Mich. 37, 8 Am. St. Rep. 797,
31 N. W. 90; Phinizy v. City
Council of Augusta, 47 Ga. 260;
Ross V. Mackeney, 46 N. J. Eq. 140,
18 Atl. 685; Louisville & N. Ry.
Co. V. Mossman, 90 Tenn. 157, 25
Am. St. Rep. 670, IG S. W. 64.
1236 Real Property. [§ 353
taking water therefrom, usually by means of a pipe or
concluit.^°^ In such a case, if the water can be regarded
as belonging to the owner of the land, the grantor, there
is, it appears, the grant of a profit a prendre,^^^ while if
the water is pi(hlici juris, that is, belongs to no one, the
grant is merely of the privilege of taking it across the
grantor's land, of an easement merely.
§ 353. Artificial water courses and drains. One
may, for the purpose of procuring water from a stream
or other source of supply, have the privilege of having
water flow to his land over intervening land belonging
to another, in an aqueduct or other artificial channel,
and such a privilege constitutes an easement in the
intervening land.^^ Likewise one may have an easement
consisting (primarily) of the privilege of discharging
surface or waste water, or sewage, through or on an-
other's land.22
In case the privilege of having water thus pass to
or from one's own land over or through another's land
30a. See e. g. Bissell v. Grant, Va. 474.
35 Conn. 288; Rollins v. Blackden, 30b. Post, § 381.
112 Me. 459, 92 Atl. 521; Good- 31. Taylor v. Corporation of St.
rich V. Burbank, 12 Allen (Mass.) Helens. 6 Ch. Div. 264; Prescott v.
459; Johnson v. Knapp, 146 Mass. White, 21 Pick. (Mass.) 341; Legg
70, 15 N. E. 134; Howard v. Brit- v. Horn, 45 Conn. 409; Cole v.
ton, 67 N. H. 484, 41 Atl. 269; Bradbury, 86 Me. 380, 29 Atl. 1097;
Toothe V. Bryce, 50 N. J. Eq. Watkins v. Peck, 13 N. H. 360, 40
589, 25 Atl. 182; Paine v. Chand- Am. Dec. 156; Cannon v. Atlantic
ler, 134 N. Y. 385, 19 L. R. A. Coast Line R. Co., 97 S. C. 233,
99, 32 N. E. 18; Woodring v. Hoi- 81 S. E. 476.
lenbach, 202 Pa. St. 65, 51 Atl. 318; 32. Wood v. Saunders, 10 Ch.
Chase v. Cram, 39 R. I. 83, 97 Atl. App. 582; Humphries v. Cousins,
481; Vermont Central R. Co., v. 2 C. P. Div. 239; Brown v. Honey-
Hills, 23 Vt. 681; Corevo v. Hoi- field, 139 Iowa, 414, 116 N. W.
man, 82 Vt. 34, 71 Atl. 718; 731; White v. Chapin, 12 Allen
Wheelock v. Jacobs, 70 Vt. 162, 67 (Mass.) 516; Larsen v. Peterson.
Am. St. Rep. 659, 43 L. R. A. 53 N. J. Eq. 88, 30 Atl. 1094;
105, 40 Atl. 41; Diffendal v. Vir- Treadwell v. Inslee, 120 N. Y. 458,
ginia M. Ry. Co., 86 Va. 459, 10 24 N. E. 651; Sanderlin v. Baxter,
S. E. 536; Warren v. Syme, 7 W. 76 Va. 299, 44 Am. Rep. 165.
<^ 353] Easements. 1-37
exists in connection with a supply of water of a tempo-
rary character merely, the watercourse thus formed
must necessarily be regarded as artificial rather than
natural. When how^ever the source of supply is per-
manent in character the question as to whether the water
course is to be regarded as natural or artificial is by no
means a simple one. As before remarked,^^^ if water
flows from a permanent source of supply it might well
be regarded as a natural watercourse through the entire
extent of its flow, although it flows in part through an
artificial channel, provided such channel is of a per-
manent character. For instance, when the water of a
natural watercourse is permanently diverted in ])art by
the construction of a mill race or ''cut off," the flow
of water in this new channel might well be regarded as
part of a natural watercourse. The cases however tend
to regard such flow as constituting, originally at least,
an E^rtificial, rather than a natural watercourse^^-*
Any rights or privileges as to the use of the water
of an artificial watercourse in favor of the owners of
land thereon or thereunder, even though bearing a super-
ficial resemblance to the "natural rights" of riparian
land owners, are in the nature of easements,"^ and
there have been a number of decisions in connection
with the question of the existence of such easements.
As before stated, in some cases owners of land abutting
on an artificial watercourse have been regarded as ac-
quiring, by reason of the passage of time, on the tlieory,
it seems, of acquiescence or estoppel, rights as to the
water of the watercourse similar to the natural rights
of riparian owmers on a natural watercourse.-"^ In other
cases the existence of such easements similar to natural
ri gilts has been based on a presumption of grants to
that effect, as stated in the next following paragraph.
or>
Ante, § 3:]9, note 33a. v. Koonj Behari Pattuk, 4 App.
34. Ante, § 3:'-9. note 33c. Cas. 121; Baily & Co. v. Clark.
35. Woodv. Waudv3Exch.748; Son & Morland (1902) 1 Ch. 649.
Rameshur Pershad Narain Singh 36. Ante, § 339, note 33c.
1238 Eeai. Property. [§ 353
When a watercourse is constructed over the lands
of several persons, for utilization by all of them, it may
properly be presumed, it has been held, in the absence
of evidence to tlie contrary'', that the intention was that
they should enjoy the same rights among themselves as
if they were riparian owners on a natural stream,^'''
that, in other words, there were mutual grants by them
of easements to that extent. And there are English
cases in which such a presumption has been applied in
connection with a watercourse flowing in an ancient
channel, of unkno^\^l date, but evidently of artificial
creation, and apparently intended for the benefit of the
various owners of the land through which it passes.^''
In the case of an artificial watercourse or drain
over the land of one person, which had its inception ex-
clusively in the needs of another person, as when one
persoji acquires by grant a privilege to have water flow
in a stream either to or away from his land over the
land of another, or causes such flow over another's land
without any privilege of so doing, the person whose
land is thus burdened would have, in the first place, no
right to insist on a continuance of the burden; that is,
he would have no easement to have the flow of water so
continued for his benefit, nor would he, not Jiaving the
right to have it continued, have any right as to the water
itself."" In other words, he would not have the rights,
as to the water, of a riparian proprietor on a natural
stream. Whether, after the flow has continued for the
prescriptive period, he could claim an easement by pre-
scription as to the flow of water, would seem largely to
37. Burrows v. Lang (1901) 2 Vt. 109. 11 L. R. A. N. S. 693,
Ch. 502; Whitmores (Edenbridge), 66 Atl. 1039.
Ltd. V. Stanford (1909) 1 Ch. 427; 38. Roberts v. Richards. 50 L.
Townsend v. McDonald, 12 N. Y. J. Ch. 297. Baily & Co. v. Clark,
381; Cottel v. Berry, 42 Ore. 593, Son & Morland (1902) 1 Ch. 649.
72 Pac. 584; Harrington v. De- 39. Burrows v. Lang (1901) 2
Maris, 46 Ore. Ill, 1 L. R. A. N. Ch. 502; Whitmores (Edenbridge),
S. 756, 77 Pac. 603, 82 Pac. 14; Ltd. v. Stanford (1909) 1 Ch. 427.
Cloyes V. Middlebury Elec. Co., 80
§ 353] Easements. 1239
depend on the acceptance of the doctrine of reciprocal
easements by prescription elsewhere referred to.^^ A
somewhat analogous question has arisen, in connection
with natural watercourses, whether after the channel has
been changed and has so remained for a nmnber of
years, the stream can be restored to its former channel
as against persons wlio liave improved and utilized their
land upon the assumption that the change would be
permanent.^ ^
In England it is stated that if a watercourse is
created for a merely temporary purpose, there is no
room for the presumption of a grant, in favor of a
person whose land alaits thereon, of a right as to the
use of the water,^- but ' ' temporary purpose ' ' appears to
include every purpose for which an individual would be
likely to create or divert a watercourse,^^ and the result
of the English cases seems to be, at least approximately,
that if a watercourse is created by one for his own
purposes, a grant by him of a right as to the water will
not be presumed, while if created by several persons for
their mutual benefit, across their own lands, 'mutual
grants of rights as to the use of the water will be
presumed.^^
Grants of water power. Though a riparian
owner on a natural water course has, by the weight of
authority, no power to confer upon another the privilege
of appropriating water from the stream, to be consumed
elsewhere than upon riparian land,^^ he may confer upon
one who is not a riparian owner the privilege of using
the water merely for temporary purposes, the water so
used being returned to the stream in such a condition,
and with such a degree of promptitude, as not to affect
40. Post. § 532. Ltd. v. Stanford (1909) 1 Ch. 427.
41. Ante, § 339(h). 43. See cases in next preceding
42. Arkwright v. Gell, 5 Mees. note.
& W. 203; Wood v. Waud, 3 Exch. 44. Ante, this section, note 37.
748; Burrows v. Lang (1901) 2 Ch. 45. Ante, § 339(b), note 54.
502; Whitmores (Edenbridge),
1240 Real, Peoperty. [§ 353
the lower proprietors.^*' This is frequently done for
the purpose of furnishing power to a mill or other in-
dustrial enterprise away from the stream, the riparian
owner causing or allowing sufficient water to supply the
power to pass to the desired locality through a flume
or other conduit. Such an arrangement is usually re-
ferred to as involving the grant of a water right or
privilege, or of water power. What is, legally speaking,
the specific subject of the grant in such a case is a matter
as to which the courts give us no information, and that
being the case, the writer ventures to express the opinion
that when the riparian owner thus gives to a non ripa-
rian owner the privilege of using the water of the stream
for the furnishing of power, he grants no right in the
water itself, but merely grants a right to conduct, or to
have the water flow, over or through his riparian land,
in order that it may reach the land where it is sought to
be utilized for the creation of power. So far as concerns
the utilization of the water in such a way, which does
not involve any substantial diminution of the amount
of water passing to the lower proprietors, or cause it to
pass to them in a deteriorated condition, such lower
proprietors cannot object, whether the utilization is by
an upper riparian proprietor himself, or by another
person. Since then such other person has, as against
the lower proprietors, the privilege of so utilizing the
water, it is necessary, in order that he actually do so,
only that he get access to the water, and this he acquires
from the upper riparian proprietor by means of a grant
from the latter of the easement of conducting the water,
or of having it flow to a named amount, over such upper
proprietor's land. Frequently the water is conducted
across the riparian land by the riparian proprietor
himself, who consequently in effect furnishes the water
to the other person at the boundary of the latter 's land,
but even in such a case, it is conceived, the latter has
46. Ante, § 339(c).
§ 353] Easements. 1241
merely the privilege of an unobstructed flow of the water
over or through the riparian land, an easement in the
land and not a right in the water. Indeed the riparian
owner has himself no proprietary right in the water,
hut merely a right to have it flow past his land as it
has been accustomed to flow,^ ' and having no proprietary
right in the water, he cannot create such a right in an-
other. It may, and no doubt frequently does, occur that
the riparian owner merely contracts to furnish water
power to a certain extent, or to furnish a certain amount
of water for the creation of power, and in such a case
there appears to be no transfer whatsoever of a pro-
prietary right, no ''grant" in any sense of the term, but
merely a personal obligation upon such owner to see
that the water is available for use by his neiglibor, at the
proper height, and to the agreed extent, for the creation
of power.
The employment of the expression "water power"
in this connection is in itself calculated to produce some
confusion of ideas.^^ The expression properly means
the energy to be produced, or capable of production, by
the fall of water, and such potential energy would
hardly appear to be a proper subject of grant. A
riparian owner does not, strictly speaking, o\\ai water
powder, but he owns the privilege of controlling the water
at that particular point, so that he can allow it to fall in
47. Ante, § 339(a), note 34. so developed to be considered in
48. The expression appears to determining the taxable value of
have occa.sioned some perplexity in non riparian land. See Blackstone
connection with questions of tax- Mfg. Co. v. Inhabitants of Black-
ation. The more satisfactory view stone, 200 Mass. 82, 18 L. R. A.
in this regard is that the water (N. S.) 755, 85 N. E. 880; Union
power is not a distinct subject Water Co. v. Auburn, 90 Me. 60,
for assessment, but that the pos- 37 L. R. A. 651, 60 Am. St. Rep.
sibility of utilizing the water for 40, 37 Atl. 331; Saco Water Power
the development of power is to Co. v. Buxton, 98 Me. 295, 56 Atl.
be considered in determining the 914; Penobscot Chemical Fibre Co.
taxable value of the riparian land, v. Bradley, 99 Me. 263, 59 Atl. 83;
as is the possibility of obtaining Cocheco Co. v. Strafford, 51 N. H.
the whole or a part of the power 455; Amoskeag Mfg. Co. v. Con-
1242 Real Property. [§ 35-1:
such a manner, and in connection with snch appliances,
that it will produce power capable of industrial ap-
])lication, and, as above indicated, in making it possible
for another person to control the water for the same
]nirposes, by means of a grant of the privilege of
having the water flow over his land or otherwdse, he
effects what is ordinarily referred to as a grant of water
power.
In case, as frequently occurs, the riparian owner
w^ho grants the use of the water to a non riparian owner,
owns a dam upon the stream which serves to keep the
water at the desired level, the grant of the use of the
water would involve the grant not only of an easement
to have the water pass over the riparian land, but also,
presumably, of an easement to utilize the dam for the
purpose of making the water available for his use.^^
§ 354. Support of land. As before explained, the
owner of land has a natural right to support for his
land from neighboring land, as has the owner of the
surface of land from subjacent soil or minerals.^" Such
a natural right may be extended or diminished by the
creation of an easement in favor of one landowner by
the other. The owner of land may accordingly grant
to the owner of adjacent land the privilege of with-
drawing support from the former's land,^^ and the owner
of the surface of land may grant to the owner of sub-
jacent soil or minerals the privilege of withdrawing
support from the surface.''" But the intention to grant
cord, 66 N. H. 562, 32 L. R. A. 73 Conn. 294, 47 Atl. 328; Moline
621, 34 Atl. 241; BeHows Falls Water Power Co. v. Cox, 252 111.
Canal Co. v. Rockingham, 37 Vt. 348, 96 N. E. 1044) is not readily
622. The propriety of referring to apparent.
water power, that is, the privilege 49. See Trudeau v. Field, 69
of controlling the fall of water by Vt. 446, 38 Atl. 162.
reason of the location of one's 50. Ante, §§ 345, 346.
land, as having a distinct situs for 51. Ryckman v. Gillis, 57 N. Y.
the purpose of taxation (as in 68.
Quinnebaug Reservoir Co. v. Union 52. Rowbotham v. Wilson, 8 H.
^ 355]
Easements.
1243
.(or reserve) an easement of this character nnist clearly
appear, and it cannot be inferred from general langnage,
contained in the conveyance by which the ownership
of the minerals is severed from that of the surface,
although by that language a right to extract all the
mnierals is apparently recognized.^^
§ 355. Support of buildings. The owner of land
may acquire from the owner of adjoining land an ease-
ment consisting of a right to support for buildings on
his land from such adjoining land,^* or from adjoining
buildings,^^ neither of wliich exists as a natural right.
L. Cas. 362 ; Aspden v. Seddon, 10
Ch. App. 394; Wilms v. Jess, 94 lU.
464, 34 Am. Rep. 242; Scranton
V. PhUlips, 94 Pa. St. 15; Miles
V. Pennsylvania Coal Co., 217 Pa.
St. 449, 10 Ann. Cas. 871, 66 Atl.
764; Kirwin v. Delaware L. & W.
R. Co., 249 Pa. 98, 94 Atl. 468.
That such a privilege of removing
surface support is properly re-
garded as an easement, see Pro-
fessor Hohfield's luminous article,
27 Yale Law Journ. 66.
53. Dixon v. White, 8 App. Cas.
883; Sloss Sheffield Steel & Iron
Co. v. Sampson, 158 Ala. 590,
48 So. 493; Wilms V. Jess, 94 111.
464,34 Am. Dec. 242; Lloyd V. Cat-
linCoalCo., 210 111. 460, 71 N. E.
335; Paull v. Island Coal Co.. 44
Ind! App. 218, 88 N. E. 959; Collins
V. Gleason Coal Co , 140 Iowa, 114,
18 L. R. A. N. S. 736, 115 N. W.
479; Walsh v. Kansas Fuel Co.,
91 Kan. 310, 50 L. R. A. N. S.
686, 137 Pac. 941 ; Piedmont etc.
Coal Co. V. Kearney, 114 Md. 49(;,
79 At. 1013; Erickson v. Michigan
Land & Iron Co., 50 Mich. 604, 16
N. W. 161; Burgner v. Humph-
reys, 41 Ohio St. 340; Robertson
V. Youghiogheny River Coal Co.,
172 Pa. St. 566, 33 Atl. 706; Wea-
ver V. Berwind-White Coal Co., 216
Pa. 195, 65 Ala. 545; Berkey v.
Berwind-White Coal Co., 220 Pa.
651, 16 L. R. A. X. S. 851, 60
Atl. 329; Stongap Colliery Co. v.
Hamilton, 119 Va. 271, 89 S. E.
305; Catron v. Smith Buller Min.
Co.. 181 Fed. 941, 104 C. C. A.
But see Griffin v. Fairmont Coal
Co., 59 W. Va. 480, 2 L. R. A.
N. S. 1115, 5;; S E. 24; Kuhn v.
Fairmont Coal Co., 179 Fed. 191,
102 C. C A. 457.
54. Rigby v. Bennett, 21 Ch.
Div. 559; TunstaU v. Christian,
80 Va. 1, 56 Am. Rep. 581; Lasala
V. Holbrook, 4 Paige (N. Y.) 173.
55. Angus V. Dalton, 4 Q. B.
Div. 162; Dalton v. Angus, 6 App.
Cas. 740; Murchie v. Black, 19 C.
B. (N. S.) 190; Richards v. Rose.
9 Exrh. 218; Lemaitre v. Davis,
19 Ch. Div. 281; City of Quincy
v. Jones. 76 111. 231. 20 Am. Rep.
243; Pierce v. Dyer, 109 Mass.
374, 12 Am. Rep. 716; Partrid.s;p
V. Gilbert, 15 N. Y. 601, 69 Am.
Dec. 632.
1244: Real Pkoperty. [§ 356
In cases in whicli separate floors of a building belong"
to different persons, tliere is a right of support for the
upper floor or floors from the lower part of the building,
and this right the o^\^ler of the latter can in no way
impair, there being an implied grant to this effect in the
conveyance of such upper floor or floors. ^*^
§ 356. Party walls. A^'j^arty wall" is a division
wall between two buildings belonging to different
persons, in which each of such persons has certain
rights of use or ownership, or both. The term, as stated
in a modem English case,^"^ has been used in connection
with division walls in four different senses. It may refer
to (1) a division wall of which, with the land beneath. it,
the owners of the. two adjoining buildings are tenants in
common ;^^ (2) a wall divided longitudinally into two
strips, each of the adjoining owners owning the strip
on his side, and having a right to use that strip only;^^
(3) a wall located entirely upon the land of one of the
adjoining owners, and belonging entirely to him, but
subject to an easement in the other to have it maintained
as a division wall between the two properties and to
use it for purposes of support ;^^ or (4) a wall divided
56. McConnel v. Kibbe, 33 111. 1 Ch. 508; Wiltshire v. Sidford, 1
175, 85 Am. Dec. 265; Rhodes v. Man. & R. 404; Montgomery v.
McCorm.ack, 4 Iowa, 375; Graves Trustees of Masonic Hall. 70 Ga.
V. Berdan, 26 N. Y. 501; Harris 38. See Eherred v. Cisco, 4 Sandf.
V. Ryding, 5 Mees. & W. 60. (N. Y.) 480.
But the owner of the upper 59. Matts v. Hawkins, 5 Taunt,
floor has, it seems, no right to de- 20; Murly v. McDermott, 8 Adol.
mand that the owner of the lower & E. 138.
keei) it in repair for the purpose 60. Tate v. Fratt. 112 Cal. 613,
of supporting the former. See 44 pac. 1061; Price v. McConnell.
l)ost. § 370. note 55. 27 111. 255; Molony v. Dixon. 65
57. Watson v. Gray. 14 Ch. Div. Iowa. 1.36, 54 Am. Rep. 1, 21 N.
192, 2;er Fry, J. W. 488; Henry v. Kock, 80 Ky.
58. It is used in this sense in 391. 44 Am. Rep. 484; Dorsey v.
the following cases; Cubitt v. Habersack, 84 Md. 117, 35 Atl.
Porter. 8 Barn. & C. 257; Mayfair 96; Rogers v. Sinsheimer, 50 N.
Property Co. v. Johnston (1894) y. 646; Nash v. Kemp, 49 How.
§ 356] Easements. 1245
longitudinally in to two strips, each of tlic adjoining
owners owning the strip on his side only, but having
an easement in the other strip for the purposes of the
support of his building.*'^
In England, a division wall is presumed to belong
to the first of the above clases.^- In -this country, no
such presumption has ever been recognized, and a party
wall almost invariably belongs to the fourth class
mentioned above, except in the few cases in which it
belongs to the third class as having been built entirely
on the land of one proprietor. For this reason, it seems
proper to consider the subject of party walls as a part
of the law of easements, though a party wall of the
first or second class involves no application of that law.
A wall may be a party wall for part of its height,
and, as to the balance, a wall belonging entirely to one of
the two adjoining ow^ners, without any easement of
support in favor of the other.*'^
If one of two adjoining owners, in building a wall,
places it in part upon the land of the adjoining owner,
whether Avith or without the assent of the latter, the
Pr, (N. Y.) 522; Western Bank's Curtis, 50 N. Y. 639, 10 Am. Rep.
Appeal, 102 Pa. St. 171; Bright 545; Odd Fellows' Hall Ass'n of
V. Allan, 203 Pa. St. 394, 93 Am. Portland v. Hegele, 24 Ore. 16,
St. Rep. 769, 53 Atl. 251; Duns- 32 Pac. 679; Sanders v. Martin,
comb V. Randolph, 107 Tenn. 89, 2 Lea (Tenn.) 213, 31 Am. Rep.
89 Am. St. Rep. 915, 64 S. W. 598; Davenhauer v. Devine, 51
21. Tex. 480, 32 Am. Rep. 627; And-
61. Graves v Smith, 87 Ala. rae v. Haseltine, 58 Wis. 395, 46
450, 13 Am. St. Rep. 60, 5 L. R. Am. Rep. 635, 17 N. W. 18.
A. 298, 6 So. 308; Ingals v. Pla- 62. Cubitt v. Porter, 8 Barn. &
mondon, 75 Hi. 118; Block v. C. 257; Watson v. Gray, 14 Ch.
Isham, 28 Ind. 37, 92 Am. Dec. Div. 192.
287; Hoffman v. Kuhn, 57 Miss. 63. Weston v. Arnold, L .R. 8
746, 34 Am. Rep. 491; Shiverich Ch. 1084; Price v. McConnell, 27
V. R. .1. Gunning Co., 58 Neb. 29, 111. 255; Ringgold Lodge v. De
78 N. W. 460; Partridge v. Gil- Kalb Lodge, 157 Ky. 203, 162 S. W.
bert, 15 N. Y. 601, 69 Am. Vec. 1111; Barry v. Kdlavitch, 84 Md.
632; Hendricks v. Stark, 37 N. Y. 95, 33 L. R. A. 294, 35 Atl. 170.
106, 93 Am. Dec. 549; Brocks v.
2 R..P.— 4
1246
Real Peopeety.
[§ 356
courts will not ordinarily recognize any liability on the
part of the latter, by reason of his subsequent user of
the wall, to the builder.*'^ A promise by him to pay
for such use as lie may make of the wall may, however,
it has been decided, be inferred from the fact of his
acquiescence in its construction by the other in part on
his land, with knowledge that the latter expects payment
for its use,*^^ and there are occasional decisions and
suggestions to be found that, without reference to the
circumstances under which the wall was erected, the non
lAiilder is bound to contribute to the cost of its erection
upon making use thereof/''" There is frequently an ex-
64. Antimarchi v. Russell, 63
Ala. 356, 35 Am. Rep. 40; Prelss
V. Parker, 67 Ala. 500; Orman v.
r>ay, 5 Fla. 385; Huck v. Flentye,
80 111. 258; Long v. Smyre, 87
Kan. 182, 123 Pac. 765; Wiikins
V. Jewett, 139 Mass. 29, 29 N. E.
214; Allen v. Evans, 161 Mass.
485, 37 N. E. 571; Sherred v.
Cisco, 4 Sandf. (N. Y.) 480; Grif-
fin V. Sansom, 31 Tex. Civ. App.
560, 72 S. W. 864; List v. Horn-
brook, 2 W. Va. 340. See 21 Harv.
Law Rev. at p. 222.
65. Huck V. Flentye. 80 111. 2.3S;
Wickersham v. Orr, 9 Iowa, 253,
74 Am. Dec. 348; Day v. Caton,
119 Mass. 513, 20 Am. Rep. 347;
Griffin v. Sansum, 31 Tex. Civ.
App. 560, 72 S. W. 864. See
Bank of Escondido v. Thomas,
— Cal. — , 41 Pac. 462; Zeinin-
ger V. Schnitzler, 48 Kan. 63. 28
Pac. 1007.
It has been decided that the
fact that the wall, though built
on A's land, projected over B's
land, precluded A from obtain-
ing an injunction against the use
of the wall by B. Guttenberger
V. Woods. 51 Cal. 523. On the
other hand it was held that the
fact that the foundation of ths
wall extended under ground into
B's land, all the wall above the
ground being on A's land, gave
B no right to use the wall with-
out making compensation. Tru-
lock V. Parse. 83 Ark. 149, 11 L.
R. A. X. S. 924, 103 S. W. 166.
66. Zugenbuhler v. Gilliam, 3
Iowa, 371 ; Spaulding v. Grundy,
31 Ky. Law Rep. 951, 104 S. W.
293; Howze v. Whitehead. 93 Miss.
578, 46 So. 401; Reid v. King,
158 N. C. 85, 73 S. E. 168;
Sanders v. Martin, 2 Lea (Tenn.)
213.
The mere fact that one. In
contructing a building extending
to the edge of hits land,, con-
structs no wall along such edge,
utilizing the wall of his neigh-
bor for protection on that side.
without however in any way cut-
ting or breaking into it, does not
give the neighbor a right of action.
Nolan V. Mendere. 77 Tex. 565, 19
Am. St. Rep. 801, 14 S. W. 167.
See Bisquay v. Jennelot, 10 Ala.
§ 357] Easements. 1247
press agTeement to this effect,''" and occasionally a
statute imposes a pecuniary liability upon one making
use of a wall placed partly on his land.^"''
§ 357. Partition fences. There is generally, at
common law, no obligation upon a landowTier to maintain
a partition fence between his land and the land ad-
joining.''^ But there may be an easement, created by
grant or prescription, in favor of one piece of land, by
which the owner of land adjacent thereto is compellable
to maintain a partition fence between them."^ Such an
easement is sometimes referred to as a "spurious"
easement, since a true easement, it is considered, cannot
involve a duty of active performance on the part of
the owner of the land subject to the easement, the
servient tenement. An easement involving a right to
the maintenance of a partition fence is to be distinguish-
ed from a right to have it maintained by reason of a
contract to that effect.'^ ^
In many states there are statutes providing for the
construction of a partition fence between adjoining-
pieces of land at the joint expense of the owners or
occupants thereof.'^ By these statutes, each adjoining
owner or occupant is required not only to join in the
245, 44 Am. Dec. 483. But he Castner v. Riegel, 54 N. J. Law,
cannot cut or break into the waU, 498, 24 Atl. 4S4; Adams v. Van
it not being a party wall. Sim- Alstyne, 25 N. Y. 232.
onds V. Shields, 72 Conn. 141 44 70. D'Arcy v. Miller, 86 111. 102,
Atl. 29. 29 Am. Rep. 11; Bruner v. Pal-
67. Post, § 361, notes 37-52, § mer, 108 Ind. 397; Lawton v.
393. Fitchburg R. Co., 8 Cush. (Mass.)
67a. Post, § 365, notes 11-21. 230, 45 Am. Dec. 753; O'Riley v.
68. Star v. Rookesby, 1 Salk. Diss, 41 Mo. App. 184; Harrlman
323; Moore v. Levert, 24 Ala. 310; v. Park, 55 N. H. 471; Scott v.
Rust V. Low, 6 Mass. 90. And Grover, 56 Vt. 499, 48 Am. Rep.
see ante, § 298. 814.
69. Star v. Rookesby, 1 Salk. 71. 1 Stimson's Am. St. law,
335; Lawrence v. Jenkins, L. R. § 2182; 12 Am. & Eng. Enc. Law,
8 Q. B. 274; Bronson v. Coffin, 1050 et scq.. Ante, § 298.
108 Mass. 175, 118 Mass. 15C;
1248 Eeal Property. [§ 357
construction of the fence, but also in its maintenance
and repair,"^ and neither can, without the consent of
the other, remove any part of the fence, except, in
some states, at certain periods of the year, or after
a prescribed notice to the other proprietor.'"
When one owner of land desires to compel con-
tribution by an adjacent owner of part of the cost of a
partition fence under the statute, and the latter re-
fuses to make contribution, the former is usually ex-
pressly authorized to apply to local officers, called
"fence viewers," for a determination of the proportions
to be built and maintained b}?- each, or, in case the fence
is already erected, for an allowance of the amount to be
contributed by the party in default.^^ These statutes
usually authorize one thus to compel his neighbor to
join in the erection and maintenance of the fence only
in case the latter 's land is improved,'^ ^ or occupied,^*^
or inclosed,'^^ and sometimes only when the land is
used or occujDied "otherwise than in common," this
meaning land, it is said, which is segregated from other
land by inclosure, or by use of an exclusive nature.'^^
An owner of land who is bound, by grant or pre-
scription, or by reason of proceedings under the
72. 1 Stimson's Am. St. Law, § Y.) 320; Shriver v. Stephen.3, 20
2185; Guyer v. Stratton, 29 Conn. Pa. St. 1.38; Farr v. Spain, 67
421; Rhodes v. Mummery, 48 Ind. Wis. 631, 31 N. W. 21.
216; Barrett v. Dolan, 71 Iowa. 75. Wiggin v. Baptist Soc, 43
94, 32 N. W. 189; Stephens v. N. H. 260.
Shriver, 25 Pa. St. 78; Carpenter 76. Maudlin v. Hauscombe, 12
V. Cook, 67 Vt. 102, 30 Atl. 998. Colo. 204, 20 Pac. 619; Rust v. Low
73. 1 Stimson's Am. St. Law, § 6 Mass. 90.
2184. 77. Kent v. Lix, 47 Mo. App.
74. 1 Stimson's Am. St. Law, § 567; Boyd v. Lammert, 18 111. App.
2182; Gonzales v. Wasson, 51 Cal. 632; Boenig v. Hornberg, 24 Minn.
295; Thompson v. Bulson, 78 111. 307.
277; Farmer v. Young, 86 Iowa. 78. Hewit v. Jewell, 59 Iowa,
382, 53 N. W. 279; Briggs v. 87, 12 N. W. 738 ; Jones v. Perry,
Haynes, 68 Me. 535; Burr v. Kam- 50 N. H. 134. See Perkins v. Per-
er, 12 Neb. 483, 11 N. W. 741; kins, 44 Barb. (N. Y.) 134.
Bronk v. Becker, 17 Wend. (N.
§ 358] Easements. 1249
statute, to maintain a partition fence, or a part thereof,
is liable to the adjoining proprietor for any damage
that may occur owing to his failure properly to main-
tain it, there being usually an express provision to
this etfect in statutes providing for partition fences."^
He has no right to recover against the adjoining pro-
prietor for a trespass by the latter 's cattle which re-
sults from his own failure to comply with his ol^ligation
to fence;'*'' but his obligation is to his adjoining owner
only, and to those lawfully using the latter 's land, and
he may recover against others whose cattle trespass
on the adjacent land, and pass therefrom onto his land,
although they do so owing to his own failure to fence. ^^
§ 358. Rights of way. A right of way is primarily
a privilege to pass over another's land. Such a right
never exists as a natural right, but must always be
created by a grant or its equivalent. A right of way may
be either public or private, — that is, it may be a right
of passage of which every individual may avail himself,
or it may exist for the benefit of one individual or class
of individuals. Public rights of way are not, properly
speaking, easements, though they are frequently re-
ferred to as such, and they will be more particularly
discussed in another connection.**- Private rights of
way, which constitute one of the most important classes
of easements, will be hereafter discussed in connection
79. Powell V. Salisbury, 2 239; Rangier v. McCreight, 27 Pa.
Younge & J. .'591; Gate v. Gate, 50 St. 95 Roach v. Lawrence, 56 Wis.
N. H. 144, 9 Am. Rep. 179; Saxton 478, 14 N. W. 595.
V. Bacon, 31 Vt. 540; 1 Stimson's 81. Lord v. Wormwood, 29 Me.
Am. St. Law, § 2189 (B). 282, 50 Am. Dec. 586; Rust v. Low,
80. D'Arcy v. Miller, 86 111. 102, 6 Mass. 90; Lyons v. Merrick, 105
29 Am. Rep. 11; Baynes v. Chas- Mass. 71; Lawrence v. Gombs, 37
tain, 68 Ind. 376"; Barrett v. N. H. :'.31, 72 Am. Dec. 3;i2; Chapin
Dolan, 71 Iowa, 94, 32 N. W. 189. v. Sullivan R. Go., 39 N. H. 53, 75
Tonawanda R. Co. v. Monger, 5 Am. Dec. 207.
Denio (N. Y.) 255, 49 Am. Dec. 82. Post, § 417.
1250 Real, Property. [§ 359
with the acquisition, user, and extinguishment of ease-
ments. ""'^
A railroad right of way, so called, is frequently more
than a mere right of way, it being a strip of land
aetnally owned by the railroad company, on which the
tracks are located. In so far as the railroad company
has merely an easement of a right of way, that is, the
privilege of having its trains pass over another's land,
it is necessaril}" an easement in gross and not an ease-
ment appurtenant. ^^^
Frequently a right of way exists, not directly over
the soil of another's land, but over a hallway, passage
way or stairway in a building on another's land.^^"
Such a right of way frequently exists by reason of the
leasing of individual rooms or suites in a building, the
owner of the building retaining control of the hallways
and stairways, subject, however, to a right of way over
such hallways and stairways, in favor of each lessee of
a room or suite. ^^*^
§ 359. Pews and burial rights. The character of
the rights enjoyed by the holder of a church pew has
been the subject of numerous decisions in this country',
which are, how^ever, not entirely harmonious in charac-
ter, and are frequently unsatisfactory iu their discus-
sion of the principles involved.^^^ In England, there
may be an easement, consisting of the privilege of oc-
cupying a particular pew in the parish church, an-
nexed to a particular house or messuage, this apparent-
ly not differing in nature from any other easement, the
house or messuage constituting the dominant tenement,
83. Post, §§ 3S1-380. Mich. 578, 147 N. W. 481.
83a. See 2 Lewis, Em. Domain, 83c. Ante, § 51 (d), note 97.
§§ 451, 468; Elliott, Railroads, § 83d. See Article by Carl Zoll-
938. man, Esq., "Pew Rights in Amer-
83b. See e. g. Bale v. Todd, 123 ican Law," 25 Yale Law Journ.
Ga. 99, 50 S. E. 990; Teachout v. 467, incorporated in "American
Capital Lodge, 128 Iowa, 380, 104 Civil Church Government, ch. 15,
N. W. 440; Gates v. Sebald, 180 by that author.
§ 360]
Easements.
1251
and the cliiircli the servient tenement. ^^ In this country
it is generally recognized that a "pew holder" is not,
as such, a part owner of the church edifice, or of the
land on which it stands, these belonging usually to the
ecclesiastical authorities, the church corporation, or
trustees.**^ He is sometimes said to have an easement
or "incorporeal, hereditament,"^^ but if he has an
easement, it is an easement in gross, since in this
country a pew is never appurtenant to a particular
house or messuage. Pews have also been said to be
"real estate, "^^ but this can be so only when one's in-
terest is, as regards its possible duration, equivalent
to an estate of freehold. If one's interest in a pew is
84. Hinde v. Chorlton, L. R. 2
C. P. 104; Brumfitt v. Roberts, L.
R. 5 C. P. 224; PhiUips v. Halliday
[1891] App. Cas. 228.
85. First Baptist Soc. in Leeds
V. Grant, 95 Me. 245; Re New
South Meeting House in Boston,
1.3 Allen (Mass.) 497; Sohier v.
Trinity Church, 109 Mass. 1;
Jones V. Towne, 58 N. H. 462, 42
Am. Rep. 602; Presbyterian
Church in Newark v. Andruss 21
N. J. Law, 325; Freligh v. Piatt,
5 Cow. (N. Y.) 494; Trustees of
Ithaca First Baptist Church v.
Bigelow, 16 Wend. (N. Y.) 28;
Wheaton v. Gates, 18 N. Y. 404;
First Baptist Church in Hartford
V. Witherell, 3 Paige (N. Y.) 226,
24 Am. Dec. 223; Kincaid's Ap-
peal, 66 Pa. St. 411, 5 Am. Rep.
377; Howe v. Stevens, 47 Vt. 262.
86. First Baptist Soc. in Leeds
V. Grant, 59 Me. 245; Presbyterian
Church In Newark v. Andruss, 21
N. J. Law, 325; Gamble's Succes-
sion, 23 La. Ann. 9. See Wash-
burn, Easements, 682.
It has been occasionally stated.
rather ambiguously, that the
"owners of pews have an exclusive
right to their possession and oc-
cupation for the purposes of public
worship, not as an easement, but
by virtue of their individual
right of property therein, de-
rived, perhaps, in theory at least,
from the corporation represented
by the trustees who are seised
and possessed of the temporalities
of the church." Shaw v. Bever-
idge, 3 Hill (N. Y.) 26, 38 Am.
Dec. 616; O'Hear v. De Goes-
briand, 33 Vt. 606, 80 Am. Dec.
652.
87. Price v. Lyon, 14 Conn. 280;
Attorney General v. Proprietors
of Federal St. Meeting House, 3
Gray (Mass.) 1; Kimball v. Sec-
ond Congregational Parish in
Rowley, 24 Pick. (Mass.) 347;
Trustees of Ithaca First Baptist
Church V. Bigelow. 16 Wend. (N.
Y.) 28; Viele v. Osgood, 8 Barb.
(N. Y.)130; Howe v. Stevens, 47
Vt. 262; Barnard v. Whipple, 2a
Vt. 401, 70 Am. Dec. 422,
1252 Real, Pboperty. [§ 359
limited to a term of years, or is "from year to year,"
it would seem to be at most personal property- merely.***
Frequently, if not ordinarily, at tlie present day, es-
pecially in cburcli edifices of recent construction, a pew
holder, so called, would appear to be in the position
merely of a licensee, he paying so much periodically for
the privilege of occupying the pew.
As to the rights of the person entitled to use a
pew, upon the destruction of the church edifice or the
sale thereof, the cases are not in entire accord. The
view more generally adopted is that the church cor-
poration or trustees are liable to him for the value of
his right if the building is destroyed or sold without
an absolute necessity for such action, while there is no
such liability in case such necessity exists. ^'^ There are
occasional suggestions that the pew owner would have
a right to be allotted a pew in a new edifice substituted
for the old.'''^
Burial rights. The privilege of interring
bodies in a burial ground belonging to a corpora-
tion or association,^'-'' has been referred to as an
88. See McNabb v. Pond, 4 Gates, 18 N. Y. 395; Cooper v.
Bradf. (N. Y.) 7; Johnson v. Cor- Trustees of First Presbyterian
bett, 11 Paige (N. Y.) 265, 276; Church, 32 Barb. (N. Y.) 222;
Inhabitants of First Parish v. Mayor v. Temple Beth El, 52 N.
Spear, 15 Pick. (Mass.) 144; Y. St. Rep. 638, 23 N. Y. Supp.
Trustees of the Third Presbyter- 1013; Kincaid's Appeal, 66 Pa. St.
ian Congregation v. Andruss, 21 411, 422; Kellogg v. Dickinson, 18
N. J. Law, 325. In Pennsylvania, Vt. 266.
the right to a pew is considered 90. Daniel v. Wood, 1 Pick,
to be personal property. Church (Mass.) 102; Mayor v. Temple
V. Wells' Ex'rs, 24 Pa. St. 249. Beth El, 52 N. Y. St. Rep. 638, 23
And so by statute in Massachu- N. Y. Supp. 1013.
setts. Rev. Laws 1902, c. 36, § 90a. As to the nature of a
38; and New Hampshire Pub. right of interment in land be-
Stat. 1901 eh. 220, § 14. longing to an individual, see
89. Gorton v. Hadsell, 9 Cush. Woolridge v. Smith, 243 Mo. 190,
(Mass.) 508; Sohier v. Trinity 40 L. R. A. (N. S.) 752, 147 S. W.
Church, 109 Mass. 1; Wlieaton v 1019; Hines v. State, 126 Tenn.
§ 359]
Easements.
1253
easement,^^ as a usufructuary right,"- and as a license.''^
The question of the nature of the interest of a lot holder,
as he is frequently termed, is dt-pendent primarily upon
the intention manifested by the instrument by which
it is created or evidenced, and the nature of such in-
strument. It may occur that a lot is conveyed outriglit
to one for burial purposes, he acquiring an estate there-
in to endure so long as it is used, or capable of use, for
burial purposes.^^ This, however, is unusual.
A privilege of interring bodies in a cemetery lot
has been regarded as passing by descent.'^-'* Whether it
could ordinarily be devised or transferred inter vivos
to persons outside the family would appear to depend
on the provisions of the instrument under which it is
held and the regulations of the cemetery corporation
or association.^*^
1, 42 L. R. A. (N. S.) 1138, 149
S. W. 1058. See also as to private
burying grounds within tlie con-
fines of another's land. Brown v.
Anderson, 88 Ky. 577, 11 S. W.
C07; Mitchell v. Thorne, 134 N.
Y. 536, 30 Am. St. Rep. 699, 32
N. E. 10.
91. Hook V. Joyce, 94 Ky. 450,
21 L. R. A. 96, 22 S. W. 651;
Jacobs V. Congregation Children
of Israel, 107 Ga. 518, 73 Am. St.
Rep. 141, 33 S. E. 853; Richards
V. Northwest Protestant Dutch
Church, 32 Barb. (N. Y.) 42, 20
How. Pr. 317.
92. Buffalo City Cemetery v.
City of Buffalo, 46 N. Y. 503;
Windt V. German Reformed
Church, 4 Sandf. Ch. (N. Y.) 471;
Price V. Methodist Church, 4 Ohio
415.
93. Dwenger v. Geary, 113 Ind.
106, 14 N. E. 903; Partridge v.
First Independent Church, 39
Md. 631; Rayner v. Nugent, 60
Md. 515; Gowen v. Bessey, 94
Me. 114, 46 Atl. 792; Page v.
Symonds, 63 N. H. 17, 56 Am. Rep.
481; McGuire v. Trustees of St.
Patrick's Cathedral, 54 Hun (N.
Y.) 207; Kincaid's Appeal, 66 Pa.
St. 420, 5 Am. Rep. 377.
94. Lakin v. Ames, 10 Cush.
(Mass.) 198; Silverwood v. Lat-
robe, 68 Md. 620, 13 Atl. 161;
New York Bay Cemetery Co. v.
Buckmaster, 49 N. J. Law 449, 9
Atl. 591; Matter of Brick Presby-
terian Church, 3 Edw. Ch. (N.
Y.) 155.
95. Jacobus v. Congregation
Children of Israel, 107 Ga. 518.
73 Am. St. Rep. 141, 33 S. E. 853;
Matter of Brick Presb. Church, 3
Edw. (N. Y.) 155; Gardner v.
Swan Point Cemetery, 20 R. I.
646, 78 Am. St. Rep. 807, 40 Atl.
871.
96. See Pearson v. Hartman,
1254
Real, Peopekty.
[§ 360
Tlie corporation or society controlling the cemetery
may make regulations as to the mode and limits of the
use of lots therein for burial,'^" but such regulations
must not be unreasonable or arbitrary.^* All rights
in the persons entitled to use the burial ground are
terminated by the necessary abandonment of the use of
the land for burial purposes.^^
In so far as the person to whom the privilege of
burial is granted, has no more than an easement or
usufructuaiy right, he does not have the possession of
the burial lot.^ Somewhat strangely, however, it has
been decided or assumed, in several cases, that he may
maintain trespass qimre clansum fregit against one
interfering with his right.^
§ 360. Miscellaneous easements. In addition to
easements of the classes above referred to, numerous
100 Pa. 84; Dickens v. Cave HiU
Cemetery Co., 93 Ky. 385, 20 S.
W. 282. That interments have
been actually made has been re-
garded as precluding a sale of the
lot. Thompson v. Hickey, 8 Abb.
N. Cas. 159, 59 How. Pr. (N. Y.)
434; Schroeder v. Wanzor, 36
Hun. (N. Y.) 423.
97. Dwenger v. Geary, 113 Ind.
106, 14 N. E. 903; Farelly v.
Metairie Cemetery Ass'n, 44 La.
Ann. 28, 10 So. 386.
98. Rosehill Cemetery Co. v.
Hopkinson, 114 111. 209, 29 N. E.
685; Mount Moriah Cemetery
Ass'n V. Com., 81 Pa. St. 235, 22
Am. Rep. 743; Silverwood v. Lat-
robe, 68 Md. 620, 13 Atl. 161.
99. Partridge v. First Inde-
pendent Church, 39 Md. 631; Page
V. Symonds, 63 N. H. 17, 56 Am.
Rep. 481; Richards v. North West
Dutch Church, 32 Barb. (N. Y.)
42; Went v. Methodist Protestant
Church, 80 Hun. 266, 150 N. Y.
577, 44 N. E. 1129; Price v. Metho-
dist Episcopal Church, 4 Ohio 515;
Kincaid's Appeal, 66 Pa. St. 411,
5 Am. Rep. 377; Craig v. First
Presbyterian Church, 88 Pa. St.
42, 32 Am. Rep. 417.
1. That he cannot maintain
ejectment, see Hancock v. Mc-
Avoy, 151 Pa. 460, 31 Am. St. Rep.
774, 18 L. R. A. 781, 25 Atl. 47;
Stewart v. Garrett, 119 Ga. 386,
64 L. R. A. 99, 100 Am. St. Rep.
179, 46 S. E. 427.
2. Bessemer Land, etc., Co. v.
Jenkins, 111 Ala. 135, 56 Am. St.
Rep. 26, 18 So. 565; Pulsifer v.
Douglass, 94 Me. 556, 53 L. R. A.
238, 48 Atl. 118; Smith v. Thomp-
son, 55 Md. 5, 39 Am. Rep. 409;
Meagher v. Driscoll, 99 Mass. 281,
96 Am. Dec. 759; Thirkfield v.
Mountain View Cemetery Ass'n,
§ 360]
Easements.
1255
other easements liave been judicially recognized. Among
sucli may be mentioned the privilege of maintaining
upon another's land a stairway,^ a reser^'oir/ a sign-
board,^ of utilizing another's dock," of placing a sign on
a building," of placing clothes lines^'*' on or over an-
other's land, of having one's building overhang another's
land,'^ of s^\'ingin2' shutters thereover,^^ and even of
extending one's building or porch upon another's land.^-
Also a privilege of placing logs and lumber,^^ or mer-
12 Utah, 76, 41 Pac. 564; HoU-
man v. Platteville, 101 Wis. 94, 70
Am. St. Rep. 899, 76 N. W. 1119.
3. Moon V. Mills, 119 Mich. 298,
75 Am. St. Rep. 390, 77 N. W.
926.
4. Riefler & Sons v. Wayne
Storage Water Power Co., 232 Pa.
282, 81 Atl. 300.
5. Rex V. St. Pancras Assess-
ment Committee, 2 Q. B. D. 581,
586; Borough Bill Posting Co. v.
Levy, 144 N. Y. App. Div. 784, 129
N. Y. Supp. 740.
6. Sargent v. Ballard, 9 Pick.
(Mass.) 251; Nichols v. Boston,
98 Mass. 42, 93 Am. Dec. 132. Or
an easement of utilizing a canal
basin. International Pottery Co.
V. Richardson, 63 N. J. L. 248, 43
Atl. 692.
7. Moody V. Steggles, 12 Ch.
D. 261; Levy v. Louisville Gun-
ning System, 121 Ky. 510, 1 L. R.
A. (N. S.) 359, 89 S. W. 528.
8-9. Drewell v. Towler, 3
Barn. & Ad. 735; Steiner v. Peter-
man, 71 N. J. Eq. 101, 63 Atl.
1102.
10. Ingals V. Plamondon, 75
111. 118; Taylor v. Wright, 76 N.
J. Eq. 121, 79 Atl. 433; First Bap-
tist Society v. Wetherell, 34 R. 1.
155, 82 Atl. 1061.
11. Richardson v. Pond, 15
Gray (Mass.) 387.
12. Ensign v. Colt, 75 Conn.
Ill, 52 Atl. 829, 946; Wilson v.
Riggs, 27 App. D. C. 550; Jeffrey
v. Winter, 190 Mass. 90, 76 N.
E. 282; Smith v. Lockwood, 100
Minn. 221, 110 N. W. 980; Taylor
V. Wright, 76 N. J. Eq. 121, 99
Atl. 433; Ruffin v. Seaboard Air
Line Ry., 151 N. C. 330, 66 S. E.
317.
So an easement of planning and
maintaining a monument on an
individuals land was recognized in
Wilson V. Board of Chosen Free-
holders of Gloucester County, 83
N. J. Eq. 545, 90 Atl. 1021.
Compare Littlefield v. Maxwell,
31 Me. 134; Cortelyou v. Van
Brundt, 2 Johns. (N. Y.) 357, to
the effect that any right invol-
ing exclusive occupancy is neces-
sarily more than an easement.
And see references to English
authorities to this effect, P"^t, §
361, note 34.
13. Pollard v. Barnes, 2 Cush.
(Mass.) 191; Gurney v. Ford, 2
Allen (Mass.) 576; Lacy v. Green.
84 Pa. 514.
1256 Real Property. [§ 360
chaiidise,^-' on another's land, of tieing horses/^ mixing
manure/^ and storing rolling chairs for hire^"^ thereon,
of placing appliances to control the flow of water,^^ or
to catch fish.^*^
In a few states the statutes name certain ease-
ments which may be imposed upon land in favor of
other land, and also certain easements which may be
so imposed without making them appurtenant to other
land.-°'-^ These provisions do not appear to have had
[.ny substantial effect as regards the law of easements
in those states.
There are to be found occasional judicial expres-
sions to the effect that new species of easements will
not be recognized,^^ that, in other words, "incidents of
a novel kind cannot be attached to property at the
fancy or caprice of any owner. "^^ And this view re-
ceived practical application in one case in which the
court refused to recognize an easement consisting of
an exclusive right to float boats on another's canal .^^ It
cannot be said, however, that the courts have ordinarily
shown any disposition thus to restrict the power of the
owner of land to subject it to an easement in favor
14. Richardson v. Pond, 15 Comp. Laws 1913, §§ 5330, 5331;
Gray. (Mass.) 387. Oklahoma Rev. Laws 1910, §§
15. Trauger v. Sassaman, 14 6623, 6624; South Dakota Civil
Pa. 514; Benham v. Minor, 38 Code 1910, §§ 267, 268.
Conn. 252. 22. See Eckert v. Peters, 55
16. Pye V. Mumford, 11 Q. B. N. J. Eq. 379, 36 Atl. 491.
666. 23. This is in effect the state-
17. Goldman v. Beach Front ment of Brougham L. C. in Kep-
Realty Co., 83 N. J. L. 97, 83 pel v. Bailey, 2 Myl. & K. p. 535,
Atl. 777. made in connection with the
18. Wood V. Hewett, 8 Q. B. right to enforce an affirmative
913. covenant as against a transferee
19. Rolle V. Whyte, L. R. 3 Q. of the covenantor. It is quoted
B. 286; Leconfeld v. Lonsdale, L. with approval in Ackroyd v.
R. 5 a P. 657. Smith, 10 C. B. 164, and Hill v.
20-21. See California Civ. Code, Tupper, 2 Hurlst. & C. 121.
§§ 801, 802; Montana Rev. Codes, 24. Hill v. Tupper, 2 Hurlst. &
1907, §§ 4507, 4508; North Dakota C. 121.
^ 361] Easements. 1257
of another, and, as a matter of fact, as appears from
the preceding paragraph, they have quite freeh^ allowed
incidents of a novel kind to be attached to property in
the foi-m of easements, as they have in the form of
covenants.
II. The Creation of Easements.
§ 361. Express grant. The various classes of vesti-
tive facts bv means of which an easement can be created
may be enumerated as follows: (1) Express grant;
(2)^ Reservation or exception in a conveyance of land;
(3) Implied grant or reservation; (4) Prescription;
(5) A statutory proceeding, usually under the power of
eminent domain; (6) Estoppel. The first of these will
be considered in this section, and the others in the
sections following.
Easements, involving as they do no possession or
seisin of the land, were never capable of creation by
livery of seisin, and an owner of land desirous of
creating an easement in favor of another could do so
only by grant, that is, by a written instrument under
seal. The necessity for this purpose of an instrument
under seal still exists,^^ except in so far as seals may,
in the particular jurisdiction, have been abolished or
have lost their efficacy. In equity, however, it appears
that an instrument, not under seal, by which it is
sought to create an easement or right of profit, if based
25. Wood V. Leadbitter, 13 land, 2 Gray (Mass.) 302; Fuhr
Mees. & W. 842; Somerset v. Fog- v. Dean, 26 Mo. 116, 69 Am. Dec.
well, 5 Barn. & C. 875; Bird v. 484; Blaisdell v. Portsmouth, G.
Hlgginson, 2 Adol. & E. 696, 6 F. & C. R. Co., 51 N. H. 483;
Adol. & E. 824; Hewlins v. Ship- Veghte v. Raritan Water Power
pam, 5 Barn. & C. 221; Shipley Co., 19 N. J. Eq. 142; Thompson
V. Fink, 102 Md. 219, 2 L. R. A. v. Gregory, 4 Johns. (N. Y.) 81, 4
(N. S.) 1002, 62 Atl. 360; Dyer Am. Dec. 255; Wilkins v. Irvine,
V. Sanford, 9 Mete. (Mass.) 395, 33 Ohio St. 138; Huff v. McCauley,
43 Am. Dec. 399; Morse v. Cope- 53 Pa. St. 206, 91 Am. Dec. 203.
1258
Real Peopekty.
[§ 361
on a valuable consideration, will be given effect as a
contract to create an easement.-^^
Even apart from the common-law requirement that
the grant of an easement shall be by writing under seal,
a wanting is necessary, under the Statute of Frauds, and
an attempted oral grant of an easement is no more than
a license.2*^ In courts exercising equitable powers,
however, as before stated,^" if the intended gi^antee
makes expenditures on the faith of the attempted oral
grant, the intending grantor is estopped to deny the
validity of the grant, or as it might be otherwise ex-
})ressed, the attempted oral grant is given effect on the
theory of part performance.
What is in form a covenant merely — that is, an
agreement under seal — may operate as the grant of an
easement, when this is clearly the intention of the
parties. ^^ For instance, a covenant by A that B shall
25a. Frogley v. Lovelace,
Johns 333; Jones v. TankerviUe
(1909) 2 Ch. 440; Ashelford v.
Wills, 194 111. 492, 62 X. E. 817.
26. Profile Cotton Mills v. Cal-
houn Water Co., 189 Ala. 181, 66
So. 50; Davis v. Tway, 16 Ariz.
566, L. R. A. 1915E, 604, 147 Pac.
750; Empire Inv.^stment Co. v.
Mort, 169 Cal. 732, 147 Pac. 960;
Workman v. Stephenson, 26
Colo. App. 339, 144 Pac.
1126; McReynolds v. Har-
rigfeld, 26 Idaho, 26, 140 Pac.
1096; Wilmington Water-Power
Co. v. Evans, 166 111. 548. 46 N. E.
1083; Bonelli v. Blakemore, 66
:Miss. 136, 14 Am. St. Rep. 550,
5 So. 228; Banghart v. Flummer-
felt, 43 N. J. Law 28; Huff v.
McCauley, 53 Pa. St. 206, 91 Am.
Dec. 203; Harris v. Miller, Meigs
(Tenn.) 158, 33 Am. Dec. 138;
Maple Orchard Grove & Vine-
yard Co. V. Marshall, 27 Utah,
215, 75 Pac. 369; Rice v. Roberts,
24 Wis. 461, 1 Am. Rep. 195.
27. Ante^ § 349(d), notes 44-
49.
28. Hiolms V. Seller, 3 Lev.
305; Rowbotham v. Wilson, 8 H.
L. Cas. 348, 362; McCarthy v. Nic-
rcsi, 72 Ala. 332, 47 Am. Rep.
418; Willoughby v. Lawrence, 116
111. 11, 56 Am. Rep. 758. 4 N. E.
356; Harris v. Dozler, 72 111. App.
542; Hogan v. Barry, 143 Mass.
538, 10 N. E. 253; Ladd v. City
of Boston, 151 Mass. 585, 21 Am.
St. Rep. 481, 24 X. E. 858; Kettle
River R. Co. v. Eastern Ry. Co.,
41 Minn. 472, 6 L. R. A. Ill, 43
X. W. 469; Barr v Lamaster. 48
Xeb. 114, 32 L. R. A. 451, 66 X. W.
1110; First Xat. Bank v. Ports-
mouth Sav. Bank, 71 N. H. 547,
53 Atl. 1017; Wetmore v. Bruce,
118 N. Y. 319, 23 N. E. 303: Xor-
fleet V. Cromwell, 64 X. C. 1;
:\Iorton V. Thompson, 69 Vt. 432.
§ 361]
Easements.
1259
have a riglit of wav over his, A's land, may be regarded
as in effect a grant of a right of way by A, m favor of
Tlie grant of an easement may properly provide for
a future extension of the user of the servient tenement
to correspond with future requirements in that re-
gard.^^^
It has been the subject of learned discussion m
England,-^ whether, in a grant of an easement, m
order to confer an interest for longer than the grantee's
life, words of inheritance must be used.^*^ In this
country it has occasionally been assumed that they are
necessaiy for this purpose,^ ^ in the absence of any
statutorv provision making a conveyance effective to
create an estate in fee simple without the use of such
words,22 g^^ch as has been before referred to.^'^
Whether an instrument is a grant of an easement
in particular land,^'^^^ or a transfer of the ownership of
38 Atl. 88; Kalinowski v. Jacob-
owoski, 52 Wash. 359, 100 Pac.
852; Warren v. Syme, 7 W. Va.
475; In re Barhausen, 142 Wis.
292,' 124 N. W. 649, 125 N. W.
680.
Likewise what is in form a
release may, under the particular
circumstances of the case, be con-
strued as the grant of an ease-
ment. Walterman v. Norwalk, 145
Wis. 663, 130 N. W. 479.
28a. Patterson v. Chambers
Power Co., 81 Ore. 328, 159 Pac.
568, and cases there cited. And
see post. § 369.
29. See articles in 24 Law
Quart. Rev. at pp. 199, 259, 264.
30. ITiere is a (.UcUim to the
effect that such words are neces-
sary in Hewlins v. Shippam, h
B. & C. 221, 228. They are in
practice invariably inserted.
31. Bean v. French, 140 Mass.
229, 3 N. E. 206; Hogan v. Barry,
143 Mass. 538, 10 N. E. 253. And
see cases cited /'o.v/, § 362, note
65.
But even in a state in which
such words are regarded as neces-
sary in the case of the grant of
an easement, they are not neces-
sary in order to give an easement
by partition decree. Bornstein v.
Doherty, 204 Mass. 280, 90 N. E.
531.
32. See Stovall v. Coggins
Granite Co., 116 Ga. 376, 42 S. E.
723; GoodwiUie Co. v. Common-
wealth Electric Co., 241 111. 42,
89 N. E. 272; Hagerty v. Lee, 54
X. J. L. 580, 20 L. R. A. 631, 25
Atl. 319; Karmuller v. Krotz, 18
Iowa, 352; Whitney v. Richardson,
59 Hun. (N. Y.) 601; Borst v.
Empire, 5 N. Y. 33 (semble).
33. Avtv, § 21(a).
33a. As in Pellissier v. Corker,
1260
Real Property.
[§ 361
such land, with a specification of the user which is ex-
pected to be made of the land,"* is obviously a question
of construction of the language used. That the con-
veyance is in terms of land does not necessarily pre-
vent a construction thereof as creating only an ease-
ment in the land.^'*''
One can obviously not create an easement upon land
belonging to another, and for this reason one who has
an undivided interest only in the land cannot create an
easement therein."^ There are, however, occasional
103 Cal. 516. 37 Pac. 465; Cin-
cinnati, I. St. L. & C. Ry. Co., V.
Geisel, 119 Ind. 77, 21 N. E. 470;
Nichols V. New England Furniture
Co., 100 Mich. 230, 59 N. W. 155;
Maxwell v. McCall, 145 Iowa, 687,
124 N. W. 760; Samples v. Smythe,
32 Ky. L. Rep. 187, 105 S. W. 415;
Callaway v. Forest Park High-
lands Co., 113 Md. 1, 77 Atl. 141;
Beasley v. Aberdeen & Rocktish
R. Co., 145 N. Car. 272, 59 S. E.
60; Wason v. Pilz, 31 Ore. 9, 48
Pac. 701; Robinson v. Missisquoi
R. Co., 59 Vt. 426, 10 Atl. 522;
Reichenbach v. Washington Short
Line Ry. Co., 10 Wash. 357, 38
Pac. 1126.
34. As in Weihe v. Lorenz, 254
111. 195, 98 N. B. 268; Low v.
Streeter, 66 N. H. 36, 9 L. R. A.
271, 20 Atl. 247; Blauvelt v. Pas-
saic Water Co.. 75 N. J. Eq. 351,
72 Atl. 1091; Kilmer v. Wilson,
49 Barb. (N. Y.) 86; AumiUer v.
Dash, 51 Wash. 520, 99 Pac. 583;
Mitchell V. Prepont, 68 Vt. 613,
35 Atl. 496. See Abercrombie v.
Simmons, 71 Kan. 538, 114 Am. St.
Rep. 509, 1 L. R. A. N. S. 806,
6 Ann. Cas. 239, 81 Pac. 208.
That there is given a right of
exclusive user of a part of the
land, either on the surface, or in
a stratum below the surface, ap-
pears, according to the English
cases, to indicate conclusively
that something more than an
easement is transferred, that thfi
ownership of the land is to that
extent conveyed. See article by
Charles Sweet, Esq., on "The
'Easement' of Tunnelling," 32
Law Quart. Rev. 70; Taylor v.
Corporation of St. Helens, 6 Ch.
D. 264; Reilly v. Booth, 44 Ch.
D. 12. To the same effect appear
to be the American cases, Little-
field V. Maxwell, 31 Me. 134;
Cortelyou v. Van Brunt, 2 Johns.
(N. Y.) 357. Compare cases cited
ante, § 360, note 12.
34a. Overton v. Moseley, 135
Ala. 599, 33 So. 696; Robinson v.
Missisquoi R. R. Co., 59 Vt. 426,
10 Atl. 522; Biles v. Tacoma R.
Co., 5 Wash. 509, 32 Pac. 211.
35. Pfeiffer v. University of
California, 74 Cal. 156, 10 Pac.
622; Collins v. Prentice, 15 Conn.
423; Marshall v. Peck, 28 Conn.
183; Clark v. Parker, 106 Mass.
554; Crippen v. Morse, 49 N. Y.
63; Palmer v. Palmer, 150 N. Y.
§ 361] Easements. 1261'
decisions to the effect that if a cotenant does grant
an easement, the grantee can demand a partition in
order that the easement may be established upon that
part of the hind allotted to his grantor.^^
The creation of an easement by devise, which oc-
curs but infrequently, may be considered as one phase
of the creation of easements by grant.-^''^ It occurs
when the testator, in devising land, provides that tlie
de^^isee shall have an easement over other land belong-
ing to him.'"^ And the acquisition of an easement by
condemnation,^"^ or, by what may be regarded as
closely analogous thereto, the payment of a judgment
for damages as on account of the maintenance of a
permanent nuisance,^^*^ are also substantially varieties
of acquisition of an easement by grant, as is the ac-
quisition of an easement by force of a decree in parti-
tion proceedings.^^®
Party wall rights. Occasionally the ownei
of land grants to an adjoining owner the privilege of
utilizing a wall already constructed on the former's
land as a party wall, that is, as a division wall and for
purposes of support. More usually, however, a wall
139, 55 Am. St. Rep. 653, 44 N. McKenney v. McKenney, 216 Mass.
E. 966. It follows that he cannot 248, 103 N. E. 631; Wiley v. BaU,
create it in favor of land owned 72 W. Va. 685, 79 S. E. 659.
by him in severalty. Palmer v. 36c. Post. § 561.
Palmer, 150 X. Y. 139, 55 Am. St. 36d. See editorial note, 7 Co-
Rep. 653, 44 N. E. 966; City Club umbia Law Rev. at p. 277; Sedg-
V. McGeer, 198 N. Y. 160, 91 N. wick. Damages, §§ 93, 95, 924,
E. 539. 924a; LeAvis, Eminent Domain, §5
36. Charleston, C. & C. R. Co. 937, 948.
V. Leech, 33 So. Car. 175, 26 Am. 36e. See e. g.. Mount Hope Iron
St. Rep. 6fi7, 11 S. E. 631; Mc- Co. v. Dearden, 140 Mass. 430, 4
Elroy V. McLeay, 71 Vt. 396, 45 N. E. 803; Bornstein v. Doherty,
Atl. 898. 204 Mass. 280., 90 N. E. 531; Bean
36a. See Goddard, Easements, v. Coleman, 44 N. H. 539; RicU-
(6th Ed.) 125. ardson v. Arraington, 10 R. I.
36b. See e. g., Lide v. Hadley, ii^.
.?6 Ala. 627, 76 Am. Dec. 338;
2 R. P.— 5
1262 Eeal Property. [§ 361
acquires the characteristics of a party wall by reason
of what is known as a party wall agreement, executed
before the erection of the wall. For instance, if A and
B own adjoining lots, and A contemplates the erection
of a building on his lot, they may enter into an agree-
ment by which A acquires from B the privilege of
placing one wall of the building, to the extent of half
its thickness, upon B's land, with a stipulation that
B may use the wall for the purpose of such building
as he may desire to erect, upon payment by him of one-
half, or other proportioned part, of the cost of the
wall. Or it may be that, without specifying which is
to erect the wall, it is provided that the one erecting it
may place one-half upon the other's land, and that
the other may utilize the wall upon paying part of the
cost. Assuming that A is the one who is to erect the
wall, it would seem that B's agTeement that he may
erect it in part on B's land involves the grant to A of
an easement in B's land, while A's agreement that B
ma}^ utilize the wall on the pajTuent of part of the
cost of construction involves the grant of an easement
in A's land as regards the part of the wall to be placed
thereon. And likewise if it is not specified which o^vner
is to erect the wall, there are, it appears, mutual grants
of easements between the parties. As to the ownership
of that part of the wall erected by A upon B 's land, the
cases are to the effect that it belongs to A until B
makes use of it,"^ or pays a part of its cost for the
purpose of utilizing it,^^ whereupon it passes into the
ownership of B.
It appears somewhat singular that no question has
ever been judicially suggested as to whether a party
37. Maine v. Cumston, 98 Mass. 111. 437, 104 N. E. 5; Nat. Life
317; Berry v. Godfrey, 198 Mass. Ins. Co. of Montpelier v. Lee, 75
228, 84 N. E. 304; Hill v. Huron, Minn. 157, 77 N. W. 794; Glover
33 S. Dak. 324, 145 N. W. 570. v. Mersman, 4 Mo. App. 90;
38. Mickel v. York, 175 111. 62, Masson's Appeal, 70 Pa. St. 26.
51 N. E. 848; Kuh v. O'Reilly, 261
<^ 361] Easements. 1263
wall agreement of the character referred to is not in-
valid under the Eule against Perpetuities. If the agree-
ment in effect provides that the o^\^lership of part of
the wall is to change at an indefinite time in the future,
as stated in the cases last referred to, it is difficult to
see why such provision is not within the rule. And
even apart from such a provision for a change in the
ownership of the wall, if the right of the non builder,
or of his successor in interest, to use the wall, is
dependent on the pajinent by him of part of the cost,
a construction of the agreement which is sometimes
adopted,^^ such an attempt to create an easement to
arise at some indefinite time in the future would seem
to be within the rule.^° Conflict with the rule could be
entirely avoided, it is conceived, by considering the
part of the wall erected on the non builder 's land as con-
tinuing to be the property of the builder even after
user and payment therefor by the former, or as being
from the first the property of the person on whose land
it stands, and by furthermore considering the agreement
as immediately creating cross easements in the land of
each proprietor, with a contractual liability on the
part of the non builder as regards part of the cost of
the wall.
It has occasionally l)een suggested that such an
agreement creates the relation of vendor and purchaser
as regards that part of the wall placed on the non
builder's land,^^ that it, in other words, creates an
option in the non builder -to purchase that part of the
wall. Such a construction of the agreement would not
protect it from the operation of the Rule against Perpe-
39. As apparently in Masson's 40. Gray, Perpetuities, § 316.
Appeal, 70 Pa. 26; Conner v. Joy, 41. See Gibson v. Holrlen, llf)
— Tex. Civ. App. — , 150 S. W. III. 199, 56 Am. Rep. 146, 3 N. E.
485. But not in Matthews v. 282; McChesney v. Davis, 86 111.
Dixey, 149 Mass. 595, 5 L. R. A. App. 380; 8 Columbia Law Rev.
102, 22 N. E. 61; Hill v. Huron, at p. 121.
33 S. Dak. 324, 145 X. W. 570.
1264 Eeal Property. [§ 361
tiiities,^^ and it does not appear to be adopted in prac-
tice, a conveyance of that part of the wall not being ex-
ecuted upon payment by the non builder of part of the
cost, as we might expect to be done if such payment in-
volved the consummation of a purchase. Furthermore,
while such an option would involve in effect a con-
tract or covenant by the builder to convey to the non
builder the part of the wall on the latter 's land, when
ever the latter may desire to use the wall, upon pay-
ment by the latter of the stipulated part of the cost, yet
the possible existence of such a contract or covenant on
the part of the builder is ignored in the numerous
cases discussing whether the benefit or burden of the
agreement to pay for the land ^\^11 pass to successors
in title.^'^ In view of this omission to refer to any such
contract or covenant in this connection, in which it
would most properly be referred to, it seems reason-
able to conclude that the theory that the parties stand
in the relation of vendor and purchaser as regards
the wall has not been generally adopted.
A party wall agreement of the character referred
to, involving as it does the creation of easements in
land, is invalid if merely oral.** If, however, the wall
is erected in accordance with the agreement, the parties
are, it appears, in the same position as if the agreement
had been originally valid. The agreement involves an
attempted oral grant by one proprietor to the other of
an easement to place the wall in part on the former's
land, which is, on the theon^ of part performance or es-
toppel,*'"* validated by the subsequent construction of
the wall on the faith thereof.**' Such grant can, how-
42. Gray, Perpetuities, §§ 330- Mass. 19, 5 L. R. A. 209, 15 Am.
3S0c. St. Rep. 168, 22 N. E. 73.
43. I'ost, §§ 393, 45. Ante, § 349(d), notes 44-
44. Tillis V. Treadwen, 117 49.
Ala. 445, 22 So. 983; Rice v. Rob- 46. Rawson v. Bell, 46 Ga. 19;
erts, 24 Wis. 461, 1 Am. Rep. Russell v. Hubbard, 59 111. 335;
195; Hodgkins v. Farrington, 150 Wickersham v. Orr, 9 Iowa, 253.
§ 361] Easements. 1265
ever, be recognized and enforced only subject to the con-
ditions and stipulations to which it was originally sub-
ject, including the right of the grantor to make use of
the wall upon the payment by him of part of the cost
thereof. So far as concerns the personal liability of
such grantor under his contract to pay a portion of
the cost of the wall in case of its use by him, conceding
that such contract is within the Statute of Frauds,
which appears somewhat questionable, it is validated,
it seems, by reason of the part performance involved
in the building of the wall,^^ and apart from the doc-
trine of i)art performance, the user of the wall, since
this belongs to the builder thereof, would involve a
liability in tort or upon the theory of quasi con-
tract. That a contract to pay a certain sum in case
one makes a particular use of another's property is
invalid under the statute can not enable him to make
such use of the property without incurring any liability.
If the proprietor who, by the terms of the agree-
ment, is to construct the partition wall on the division
line between the two properties, fails to extend it the
full length of that line, the other, it has been held, has
the privilege of so extending it.^^
What constitutes a user of the wall by B which
will render him liable under his covenant to A, who
constructed the wall, for part of the cost thereof, is
74 Am. Dec. 348; Horr v. Hollis, not build it has been regarded
20 Wash. 424, 55 Pac. 565; Miller as a performance which takes
V. Brown, 33 Ohio St. 547. his contract to pay a part of the
47. See Rawson v. Bell, 46 Ga. cost out of the statute. Walker
19; Rindge v. Baker, 57 N. Y. v. Shackelford, 49 Ark. 503, 4 Am.
209; Stuht v. Sweesy, 48 Neb. St. Rep. 61, 5 S. W. 887; Pireaux
767, 67 N. W. 748; Swift v. Cal- v. Simon, 79 Wis. 392, 48 N. W.
nan, 102 Iowa, 206, 37 L. R. A. G74.
462, 63 Am. St. Rep. 443, 71 N. 48. Matthews v. Dixey. 149
W. 233; Rice v. Roberts, 24 Wis. Mass. 595, 22 N. E. 61; Negus v.
461, 1 Am. Rep. 195. Becker, 72 Hun (N. Y.) 479, 25
Occasionally the user of the N. Y. Supp. 640.
wall by the proprietor who did
1266 Real, Peoperty. [§ 362
l^rimarily a matter of the constiniction of the covenant.
A user of the wall in the course of the reconstruction
of an existing building, as distinguished from its use
in the erection of a new building, has, in particular
cases, been regarded as insufficient to impose a liabil-
ity.^^ And a like view has been taken of the erection by
B of another wall impinging upon the wall built by A,
although the existence of this latter wall enables B to
make his wall of lighter construction.^" In one case a
covenant to pay part of the cost of the wall when the
covenantor used it was construed to involve an obliga-
tion upon his part to use the wall in a reasonable
time,^^ and in two cases the court appears to have con-
strued such a covenant as involving a liability upon
the covenantor if he conveyed his land and so put it
out of his power to use the wall.^^
§ 362. Express reservation or exception. By the
law of England, an ''exception" in a conveyance merely
withdraws from the operation of the conveyance a pan
of the thing conveyed as a whole, and a "reservation"
merely provides for the rendition to the grantor of
something, such as a rent or service, which is regarded
as issuing from the thing granted.^^"^^ An easement
49. Shaw V. Hitclicock, 119 not to include one half the cost
Mass. 254; Fox v. Mission Free of additions made by a purchaser
School, 120 Mo. 349, 25 S. W. 172. from the buil:^er, on his own land,
50. Kingsland v. Tucker, 115 N. for the purpose of strengthening
Y. 574, 22 N. E. 268; Sheldon the wall for his own purposes.
Bank v. Royce, 84 Iowa, 288, 50 Walker v. Stetson, 162 Mass. 86,
N. W. 986. 44 Am. St. Rep. 350, 38 N. E. IS.
That the builder of the Avail 51. Sherley v. Burns, 22 Ky. L.
failed to extend it over a small Rep. 788, 58 S. W. 69.
portion of the division line as he 52. Rawson v Bell, 46 Ga. 19;
agreed to do was held not to Nalle v. Paggi, 81 Tex. 201, 13
prevent recovery upon the other's L. R. A. 50, 16 S. W. 932. Compare
covenant. Keith v. Ridge, 146 Mo. Hurford v. Smith, 24 Okla. 448,
90, 47 S. W. 904. 103 Pac. 851. And cases cited
The covenant to pay one-half post, § 393(b), note 74.
of the cost of the wall was held 53-57. See post, § 436.
§ 362]
Easements.
1267
in the land conveyed is regarded as neither a part of the
land nor as issuing therefrom, and consequently, in
that country, if, upon the conveyance of land, there is
in terms a reservation or exception, in favor of the
grantor, of an easement in the land, these words are
construed as in eft'ect a re-grant of the easement by
the grantee of the land to the grantor, which can take
effect only if the instrument is executed by such
grantee.^^ In this country, however, the view of the
common law as to the restricted functions of an ex-
ception and a reservation is not usually adopted,^^ and
it is held that an easement in the land conveyed may
be created by a reservation,*^^ and in some states even
by an exception,*'^ and consequently, the fact that the
instrument is not executed by the grantee of the land as
well as by the grantor is immaterial. Occasionally it has
been decided that an easement may properly be created
by a reservation but not by an except'ion,^- and, having
58. Durham & S. Ry. Co. v.
Walker, 2 Q. B. 940; Wickham v.
Hawker, 7 Mees. & W. 63; Corpo-
ration of London v. Riggs, 13 Ch.
Div. 798.
59. See post, § 436.
60. Chai>pell v. New York, N.
H. & H. R. Co., 62 Conn. 195,
17 L. R. A. 420, 24 Atl. 997;
Kuecken v. Voltz, 110 111. 264;
Morrison v. Chicago & N. W.
Ry. Co., 117 Iowa, 587,
91 N. W. 793; Wendell
V. Helm, 87 Kan. 136, 123 Pac.
869; Inhabitants of WMnthrop v.
Fairbanks, 41 .Me. 307; Damron v.
Justice, 162 Ky. 101, 172 S. W.
120; Kent v. Waite, 10 Pick.
(Mass.) 138; Bowen v. Conner, 6
Cush. (Mass.) 132; Claflin v. Bos-
ton & A. R. Co., 157 Mass. 480,
20 L. R. A. 638, 32 N. E. 659;
Haggerty v. Lee, 54 N. J. Law
580, 50 N. J. Eq. 464, 20 L. R. A.
631, 25 Atl. 319; Borst v. Empie,
1 Seld. N. Y. 33; Rose v. Bunn,
21 N. Y. 275; Grafton v. ;\Ioir,
130 N. Y. 465, 27 Am. St. Rep.
533, 29 N. E. 974; Richardson v.
Clements, 89 Pa. St. 503, 33 Am.
Rep. 784; Kister v. Reeser, 98 Pa.
St. 1, 42 Am. Rep. 608; Fischer v.
Laack, 76 Wis. 313, 45 N. W. 104.
61. Inhabitants of Winthrop v.
Fairbanks, 41 Me. 307; Ring v.
Walker, 87 Me. 550, 33 Atl. 174;
Claflin V. Boston & A. R. Co.,
157 Mass. 489, 20 L. R. A. 638, 32
N. E. 659; Bridser v. Pierson, 45
N. Y. 601; Lcavitt v. Towle, 8 N.
H. 96.
62. City Club of Auburn v. .Mc-
Geer, 198 N. Y. 160, 91 N. E. 539,
92 N. E. 105; Gill v. Fletcher. 74
Ohio St. 295, 113 Am. St. Rep.
962, 78 N. E. 433; Kister v. Reeser,
1268
Eeal Property.
[§ 362
regard to the nature of a reservation and of an exception
at common law, sucli a view appears to be a reasonable
one. The assumption that an easement may be created
by exception as well as by reservation has resulted in
much confusion in particular cases/'^
In some states it is considered that words of in-
heritance must be used in the reservation of an ease-
ment in order that the grantor may acquire an ease-
ment to endure longer than his own life,^^ In other
states such words are regarded as unnecessary by
reason of the general statutory provisions dispensing
with the necessity of such words in order to create an
estate in fee simiDle.*'*' In a few states the use of such
words has been regarded as unnecessary on the theory
that, the reservation being evidently intended to be
for the benefit of neighboring land retained by the
grantor, his easement is to be regarded as unlimited in
point of duration."*" This latter view harmonizes with
98 Pa. 1; Riefler & Sons v. Wayne
Storage Water Power Co., 232 Pa.
282, 81 Atl. 300.
64. Post, § 436.
65. Koelle v. Knecht, 99 I'.l.
396; Dawson v. Western Md. R.
Co., 107 Md. 70, 14 L. R. A. (X. S.)
809, 126 Am. St. Rep. 337, 15 Ann.
Cas. 678, 68 Atl. 301; Bean v.
French, 140 Mass. 229; Childs v.
Boston & M. R. R., 213 Mass. 91,
99 N. E. 957; Hornbeck v. West-
brook, 9 Johns. (N. Y.) 73; Kister
V. Rieser, 98 Pa. 1. And so it
has been said that the word "heirs '
is necessary in the case of a res-
ervation of oil and gas, but not
in the case of an exception of oil
and gas. Mandle v. Gharing, 256
Pa. 121, 100 Atl. 535.
66. Webb v. Jones, 163 Ala.
637, 50 So. 887; Presbyterian
Church of Osceola v. Harken, 177
Iowa, 195, 158 N. W. 692; Bein-
lem V. Johns. 102 Ky. 570, 44 S.
W. 128; Ruffin v. Seaboard Air
Line Rwy., 151 N. Car. 330, 66
S. E. 317; Rubnke v. Aubert, 58
Ore. 6, 113 Pac. 38; Forde v.
Libby, 22 Wyo. 464, 143 Pac. 1190.
67. Webb v. Jones, 163 Ala.
637, 50 So. 887 (dictum); Chap-
pell V. N. Y., N. H. & H. R. Co.,
62 Conn. 195, 17 L. R. A. 420,
24 Atl. 997; Teachout v. Capital
Lodge I. 0. O. P., 128 Iowa, 380,
104 X. W. 440; Ring v. Walker,
87 Me. 550, 33 Atl. 174; Engel v.
Ayer, 85 Me. 448, 27 Atl. 352;
Lathrop v. Eisner, 93 Mich. 599,
53 N. W. 791; Smith v. Furbish,
68 N. H. 123, 47 L. R. A. 226. 44
Atl. 398. But as to Maine see
Winthrop v. Fairbanks, 41 Me.
307; Dana v. Smith, 114 Me. 262,
95 At. 1034.
«^ 362] Easements. 1269
the common law rule that the reservation of rent
upon a lease by one having a fee simple estate, without
the mention of heirs, gives the lessor an interest in
the rent which passes upon his death to his lieirs, as
partaking of the character of the reversion to which it
appertains. ^^
In so far as it may be considered that an easement
may be created by an exception, it is generally agreed
tliat words of inheritance are unnecessary, in order to
give to the grantor of the land an interest in the ease-
ment to endure beyond his life.*^^
An easement in gross is ordinarily regarded, as
above stated, as being purely personal to the person
in favor of whom it is created,'*^ and consequently a
reservation of such an easement would usually create
an easement for the grantor's life only, in the ab-
sence at least of language indicative of a contrary
intention.
That an easement cannot be created by reservation
in favor of a person other than the grantor in the
conveyance has been frequently asserted,'^ but there
are to be found cases which are not in accord with
such a view.'- The important consideration in that
regard would appear to be whether the language of
reservation in the particular case in favor of a third
68. Co. Litt. 47a; 2 Piatt, H. & H. R. Co., *62 Conn. 195, 17
Leases, 88; Gilbert, Rents, 64; L. R. A. 420, 24 Atl. 997; Win-
Jaques v. Gould, 4 Cush. (Mass.) throp v. Fairbanks, 41 Me. 307;
384. Mclntire v. Lauckner, 108 Me. 443,
In Smith's Ex'cr v. Jones, 86 SI Atl. 784; Foster v. Smith, 211
Vt. 258, 84 Atl. 866. that the ease- Mass. 411, 98 N. E. 693; Lipsky
ment was appurtenant appears to v. Heller, 199 Mass. 310, 85 N. E.
have been regarded as a reason 453; Smith's Ex'cr v. Jones, 86
for construing the language as Vt. 258, 84 Atl. 866; Ruffin v.
an exception, in order that, al- Seaboard Air Line, 151 N. Car.
though without words of inheri- 330, 66 S. E. 317.
tance, it might endure after the 70. Aiilr, § 350, note 3.
grantor's life. 71. Post, § 436.
69. Chappell v. New York, N. 72. Post, § 436.
1270 Eeal Property. [§ 363
person can be construed as the grant of an easement
to such person.
As words of covenant may operate as a grant of an
easement,^^ they may operate as a reservation, as
when one accepts a conveyance of land to him, which
contains an agreement on his part that the grantor of
the land may use such land in a certain way, or that
he, the grantee, shall allow it to be used in a certain
way.'^"^^
§363. "Implied" grant or reservation. (a)
General considerations. Frequently, although there is
no grant of an easement in express terms, an easement
is regarded as arising in connection with a conveyance
of land, either for the benefit of the land conveyed as
against land retained by the grantor, or for the benefit
of land retained by the grantor as against the land con-
veyed, the former being referred to as a case of the
"implied grant" of an easement, and the latter being
referred to as a case of the "implied reservation" of
an easement.
This doctrine of implied grant and implied reserva-
tion finds its practical application in connection with the
question whether, upon a severance of ownership of
land, an easement is created corresponding to a pre-
existing "quasi easement,"^- and also in connection with
the question of the existence of an "easement of
necessity."*^
Theory of implied grant. In the case of an
easement arising in favor of the grantee of land as
corresponding to a preexisting quasi easement, as
well as in the case of an easement of necessity, the
73. Ante, § 361, note 28. 680.
74-81. Weller v. Brown, 160 82. Post, this section, notes 85-
Cal. 515, 117 Pac. 517; Hathaway 50.
V. Hathaway, 159 Mass. 584, 35 83. Post, this section, notes 51-
X. E. 85; Re Barkhausen, 142 3b.
Wis. 292, 124 X. W. 649, 125 N. W.
§ 363] Easements. 1271
easement is res^arded as existing on the theory that
the grantor and grantee of the land intend that it shall
exist, and the courts merely declare in effect that the
particular circumstances of the transaction raise a pre-
sumption of such an intention. Since the easement thus
arises as the result of an intention imputed to the
parties that it shall arise, it exists, properly speaking,
by reason of an express rather than an implied
grant. This being so, a question suggests itself
as to how, in view of the Statute of Frauds, and the
recognized necessity, at common law, of a grant under
seal in order to create an easement, a grantee
of land can be regarded as acquiring, as ap-
purtenant to the land, an easement in other land, not
previously existing, and not referred to in the con-
veyance. The explanation is, apparently, that the
easement is to be regarded, for the purpose of the par-
ticular case, as included in the description of the land
conveyed. Evidence is always admissible to aid in the
interpretation of the language of a written instrument,
and so evidence is admissible to show the surrounding
circumstances to be such as to raise a presumption that
the property conveyed was, not a mere piece of land, but
a piece of land with a particular easement appurtenant
thereto.^* The rules declared by the courts as to the
creation of easements corresponding to preexisting
quasi easements, and of easements of necessity, con-
stitute in reality merely rules of construction for the pur-
pose of determining the scope of the conveyance. And
the grant of the easement is implied only in the sense
that the easement passes by the conveyance although not
expressly mentioned, just as an easement previously cre-
ated passes upon a conveyance of the land to which it
is appurtenant without any express mention of the
84. As said by Justice Story, privilege at the time of the grant,
somewhat too sweepingly: "What- passes as parcel of it." Hazard
ever is actually enjoyed w^ith the v. Robinson, 3 Mason, 272.
thing granted, as a beneficial
1272 Eeal Property. [§ 363
easement. It is immaterial, from a legal point of
view, whether the easement passes because the instru-
ment expressly says that it shall pass, or because the
circumstances are such as to call for a construction
of the language used as so saying. So in the case of
the so called implied reservation of an easement upon a
conveyance of land, the description of the land is, by
reason of the surrounding circumstances, construed to
refer, not to the land free from any easement, but to the
land subject to an easement corresponding to the
previous mode of utilizing the land or to the necessities
of the case, and there is thus, properly speaking, an
express reserv^ation, in the sense that it is intended, or
rather presumed to be intended, and the reservation is
implied only in the sense that, instead of being explicitly
stated, it is left to be inferred from the language used
when construed with reference to the surrounding cir-
cumstances.
(b) Of easement corresponding to pre-existent
quasi easement. One cannot have an easement over
one's own land, but one may make use of one part of
his land for the benefit of another part, just as, if they
were separately owmed, the owner of the latter might
make use of the former by reason of the existence of
an easement in his favor. When one thus utilizes part
of his land for the benefit of another part, it is frequent-
ly said that a quasi easement exists, the part of the land
which is benefitted being referred to as the ''quasi dom-
inant tenement," and the part which is utilized for the
benefit of the other part being referred to as the ^' quasi
servient tenement." The so called qtmsi easement is
evidently not a legal relation in any sense, but the
expression is a convenient one to describe the particular
mode in which the owner utilizes one part of the land for
the benefit of the other, as bearing on the question now
to be discussed, whether, when the two parts subse-
quently become the property of different persons, an
actual easement is to be regarded as existing, which
^ a63]
Easements. 1273
corresponds to the use wliich was previously made of
the land by the owner of both parts. The latter ques-
tion is frequently, perhaps more usually, the subject of
discussion and adjudication without the employment of
the expression quasi easement, which is here employed
merely because, in the view of the writer, the explana-
tion and discussion of the matter will be thereby
somewhat facilitated.
If the owner of land, one part of which is sub-
ject to a quasi easement in favor of another part,
conveys the quasi dominant tenement, an easement cor-
responding to such quasi easement is ordinarily re-
garded as thereby vested in the grantee of the land, pro-
vided, it is said, the quasi easement is of an apparent
continuous and necessary character.
It is perhaps unfortunate that the courts, in de-
termining whether, in a particular case, an easement
corresponding to a preexisting quasi easement has
passed with the land, have usually failed to recognize
that the question is primarily one of construction, and
have instead undertaken to lay down absolute rules as to
what characteristics the particular easement or quasi
easement must have, implying that, if it has these char-
acteristics, the easement will pass as a matter of law.
The characteristics ordinarily referred to in tliis con-
nection are, as above indicated, that the user be ap-
parent, that it be continous, and that it be necessary,
each of which will be hereaftei- discussed in turn. But
it does not seem that the presence or absence of any or
all of these characteristics should be conclusive. Taking
the case of a quasi easement which is not apparent,
which is not continuous and which is not necessary,
nevertheless a conveyance in terms of the quasi domi-
nant tenement should, it is conceived, be construed as
a conveyance of the lands with an easement appurtenant
thereto corresponding to the pre existing quasi ease-
ment, if this accords with the probable intention of the
parties. On the other liand, even though the quasi ease-
1274 Eeal Property. [§ 363
ment has all the three characteristics named, an ease-
ment corresj)oncling thereto evidently does not pass
with the land if the language of the conveyance shows
clearly an intention otherwise,^^ or if the circumstances
are such as to exclude a construction of the language
of the conveyance as inclusive of the easement. So it
has been decided that an easement does not pass when
the grantee of the land knows that the grantor has no
intention that it shall pass.^*^
Applications of doctrine. The doctrine of an
implied grant of an easement corresponding to a pre-
existing quasi easement has been applied in various
connections, of which the following may be mentioned.
It has been held that where the owner of two pieces
of land maintains on one of them a drain for the bene-
fit of the other, a person to whom he conveys the latter
is entitled to an easement of maintaining the drain
as it was before maintained.^' And so if one lays pipes
for the supply of water from one part of his land to
85. Webber v. Vogel, 159 Pa. tale of property under order of
235, 28 Atl. 226; Hardy v. Mc- court there was no implication
Cullough, 23 Gratt. (Va.) 251; of the grant of an easement if
Bloom V. Koch, 63 N. J. Eq. 10, the evident intention of the court
50 Atl. 621 (dictum) ; Greer v. was otherwise.
Van Meter, 54 N. J. Eq. 270, 33 87. Thayer v. Payne, 2 Gush.
Atl. 798 Ulictinn); United States Mass. 327; Lampman v. Milks, 21
V. Appleton, 1 Sumn. 492. N. Y. 505; Denton v. Leddell, 23
86. Birmingham, Dudley & Dis- N. J. Eq. 64; Shaw v. Etheridge,
trict Banking Co. v. Ross, L. R. 3 Jones L. (48 N. C«ir.) 300;
38 Ch. Div. 295; McPherson v. Siiarpe v. Scheible, 162 Pa. 341,
Acker, McArth. & M. 150, 48 Am. 42 Am. St. Rep. 838, 29 Atl. 736;
Rep. 749; Curtis v. Ayrault, 47 Elliott v. Rhett, 5 Rich. L. (S. C.)
N. Y. 473; Lebus v. Boston, 21 40S, 57 Am. Dec. 750; Sarnderlin
Ky. X.aw Rep. 411, 47 L. R. A. 79, v. Baxter, 76 Va. 299; McElroy
51 S. W. 609; Kemp v. Pennsyl- v. McLeay, 71 Vt. 396, 45 Atl.
vania R. R., 156 Pa. 430, 26 Atl. 898. But see Allers v. Bach, 130
1074. Md. 499, 100 Atl. 781, where the
In Assets Investment Co. v. implied grant of an easement of
HoUingshead, C. C. A. 200 Fed. drainage was negatived, apparent-
551, it was decided that upon a ly as not being necessary.
§ 363]
Easements.
1275
another part, a grantee of the part so benefitted may
have the privilege of obtaining a water supply in
the same manner as it was previously obtained by his
grantor.^^ The doctrine has also been applied in connec-
tion with the question of the right to utilize water
power,^'^ to flood land,*^® to demand support for a
building from another building,^ ^ or from a wall,^- to
88. Nicholas v. Chamberlain,
Cro. Jac. 121; Watts v. Kelson,
L. R. 6 Ch. 166; Franciscioni v.
Soledad Land & Water Co., 170
Cal. 221, 149 Pac. 161; Quinlan
V. Noble, 75 Cal. 250, 17 Pac. 69;
Adams v. Gordon, 265 111. 87, 106
X. E. 517; Johnson v. Knapp, 146
Mass. 70, 15 N. E. 134; Toothe
V. Bryce. 50 N. J. Eq. 589, 25 Atl.
iS2;Larsen v. Peterson, 53 N. J.
Eq. 88, 30 Atl. 1094; Paine v.
Chandler, 134 N. Y. 385, 19 L. R.
A. 99, 32 N. E. 18; Spencer v.
Kilmer, 151 N. Y. 390, 45 N. E.
865; Coolidge v Hager, 43 Vt. 9,
5 Am. Rep. 256.
In Nicholas v. Chamberlain.
Cro. Jac. 121, there is a dictum by
Popham, C. J., that no such ease-
ment to have the water pass to
one's land is created if the pipes
were laid by a lessee of the grant-
or or by a disseisor, and they
were not in any way adopted by
the grantor as a part of the
premises before making the con-
veyance. This dictum was ap-
plied in Cogswell v. Cogswell,
81 Wash. 315, 142 Pac. 655.
89. Jarvis v. Seele Mill Co.,
173 111. 192, 64 Am. St. Rep. 107,
50 N. E. 1044; Smith v. Dressel-
house, 152 Mich. 451, 116 N. W.
387; Richardson v. Bigelow, 15
Gray (Mass.) 154; Simmons v.
Cloonan, 81 N. Y. 557.
90. Preble v. Reed, 17 Me. 169;
Baker v. McGuire, 53 Ga. 245, 57
Ga. 109; Burr v. Mills, 21 Wend.
(N. Y.) 290; Znamanacek v.
Jelinek, 69 Neb. 110, 111 Am. St.
Rep. 533, 95 N. W. 28; Latta v.
Catawba Electric & Power Co.,
146 N. Car. 285, 59 S. E. 1028.
91. Jordan v. Otis, 38 Ms. 429;
Tunstall v. Christian. 80 Va. 1.
56 Am. Rep. 581; Richards v.
Rose, 9 Exch. 217. But see Grif-
fiths V. Morrison, 106 N. Y. 165,
12 N. E. 580; Whyte v. Builders'
League, 164 N. Y. 429, 58 N. E.
517.
92. Kahn v. Cherry, 131 Ark.
49, 198 S. W. 266; Nippert v.
Warneke, 128 Cal. 501. 61 Pac. 96,
270; Goldschmid v. Starring, 5
Mackey (D. C.) 582; Ringgold
Lodge V. De Kalb Lodge, 157 Ky.
203, 16 S. W. 1111; Carlton v.
Blake, 152 Mass. 176, 23 Am. St.
Rep. 818, 25 N. E. 83; Cherry v.
Brizzolura, 89 Ark. 309, 116 S.
W. 668; Partridge v. Gilbert, 15
N. Y. 601, 69 Am. Dec. 632; Eno
V. Del Vecchio, 4 Duer. (N. Y.
— ) 53, 6 Duer. 17; Henry v.
Koch, 80 Ky. 391, 44 Am. Rep.
484; Doyle v. Ritter, 6 Phila. 577;
Schwalm v. Beardsley, 106 Va.
407, 56 S. E. 135.
1276
Eeal Property.
[§ 363
utilize a stairway on adjoining property ,^-^ and to liave
a building encroach on another's land,^^ and even to
have water in an adjoining pond kept at a fixed level.®*^
Easement of light. In England and one or two
states, it is the ordinary rule that, if one conveys land
on which there is a building which is lighted by windows
opening on land retained by the grantor, the grantee is
entitled to an easement of light over such land, and the
grantor cannot obstruct his light by building on his
land.^"^ Generally, in this country, however, it has been
held that no such grant of an easement of light will be
implied, it being calculated unduly to burden land, and
to interfere with its alienation and proper improve-
ment;^*' or that it will be implied only in case the light
93. Stephens v. Boyd, 157 Iowa,
570, 138 N. W. 389; National Ex-
change Bank v. Cunningham, 46
Ohio St. 575, 22 N. E. 924; HoweU
V. Estes, 71 Tex. 690, 12 S. W.
62; Geible v. Smith, 146 Pa. 276,
28 Am. St. Rep. 796, 23 Atl. 437.
94. Lead City Miner's Union v.
Moyer, 235 Fed. 376; Wilson v.
Riggs, 27 App. D. C. 550; John
Hancock Mut. Life Ins. Co. v.
Patterson, 103 Ind. 582, 53 Am.
Rep. 550, 2 N. E. 188; Smith v.
Lockwood, 100 Minn. 221, 110 N.
W. 980; Carrig v. Mechanics'
Bank, 136 Iowa, 261, 111 N. W.
329; Katz v. Kaiser, 154 N. Y.
294, 48 N. E. 532; Grace M. E.
Church V. Dobbins, 153 Pa. 294,
34 Am. St. Rep. 706, 25 Atl. 1120.
94a. Marshall Ice Co. v. La
Plant, 136 Iowa, 621, 12 L. R. A.
(N. S.) 1073, 111 N. W. 1016.
95. Swansborough v. Coventry,
9 Bing. 305; Broomfield v. Wil-
liams (1897), 1 Ch. 602; Greer
V. Van Meter, 54 N. J. Eq. 270,
33 Atl. 794; Sutphen v. Therkel-
son, 38 N. J. Eq. 318; Fowler v.
Wick. 74 N. J. Eq. 603, 70 Atl.
682; Liedtke v. Lipman, (N. J.
Ch.) 76 Atl. 463; Janes v. Jenk-
ins, 34 Md. 1, 6 Am. Rep. 300.
See Wood v. Grayson, 22 Dist.
Col. App. 432.
96. Kenn3dy v. Burnap, 120
Cal. 488, 40 L. R. A. 476, 52 Pac.
843; Keating v. Springer, 146 111.
481, 22 L. R. A. 544, 37 Am. St.
Rep. 175, 34 N. E. 805; Anderson
V. Bloomheart, 101 Kan. 691, 168
Pac. 900, 901; Ray v. Sweeney, 14
Bush (Ky.) 1, 29 Am. Rep. 388;
Keiper v. Klein, 51 Ind. 316; Keats
V. Hugo, 115 Mass. 204, 15 Am.
Rep. 80; Mullen v. Strieker, 19
Ohio St. 135, 2 Am. Rep. 379;
Bailey v. Gray, 53 S. C. 503, 31
S. E. 354; Roe v. Walsh, 76
Wash. 148, 135 Pac. 1031, 136 Pac.
1146. See Morrison v. Marquardt,
24 Iowa, 35, 92 Am. Dec. 444;
White V. Bradley, 66 Me. 254
§ 363] Easements. 1277
entering the grantee's building over the grantor's land
is actually necessaiy to the use of such building.'*^
The same rule as that ordinarily applied in con-
nection with a conveyance in fee simple has also been
asserted in connection \\dth a lease, it being held that
the lessor, or one claiming under him, may erect a
building on land adjoining the premises leased, al-
though he thereby obstructs the passage of light to the
latter premises.''^ Some courts have, however, indi-
cated a disposition to protect a tenant under a lease to
a greater extent in this regard than a grantee in fee
simple, having in view perhaps that the burden on the
adjoining land will endure only for the life of the lease,
and that the tenant is not in a position to change the
construction of the building in order to procure light
otherwise. Thus it has in one state been decided that
the lease of a room ' ' with appurtenances ' ' passes an ease-
ment in the yard attached to the building, for the pro-
curement of light and air,*^^^ and in another that one
who leases front rooms in his building cannot construct
an addition to the building on an unenclosed space in
front thereof so as to cut off the light and air from the
97. Robinson v. Clapp, 65 Palmer v. Wetmore. 4 N. Y. Super.
Conn. 365, 29 L. R. A. 582, 32 Ct. (2 Sandf.) 316; Myers v. Gem-
Atl. 939; Turner v. Thompson, mel, 10 Barb, (N. Y.) 537; Lindsey
58 Ga. 268, 24 Am. Rep. 497; Dar- v. First Nat. Bank, 115 N. C. 553,
r.ell V. Columbus Show Case Co., 20 S. E. 621.
129 Ga. 62, 12 L. R. A. (N. S.) 333, 98a. Doyle v. Lord, 64 N. Y.
58 S. E. 631; Case v. Minot, 158 432, 21 Am. Rep. 629. The opin-
Mass. 577, 22 L. R. A. 536, 33 N. ion is apparently to the effect
E. 700; Lipsky v. Heller, 199 that if "appurtenances" had not
Mass. 310, 85 N. E. 453; Renny- been mentioned, no easement
son's Appeal, 94 Pa. St. 147, 39 would have passed, but it also
Am. Rep. 577; Powell v. Sims, 5 distinguishes the cases deciding
W. Va. 1, 13 Am. Rep. 629. that no easement of light is cre-
98. Keating v. Springer, 146 ated by implication on the ground
111. 481, 34 N. E. 805, 22 L. R. A. that in this particular case the
544, 37 Am. St. Rep. 175 (in this yard had been appropriated to
case, however, there was an ex- the use of the building and was
press covenant on the subject) ; a part of the same lot.
2 R, P.— G
1278 Reu\l Peoperty. [§ 363
rooms and cover the lessee's signs.^^** A like view has
been asserted as to the obstruction of the light passing
to that part of the building- which is leased, by reason of
an alteration of the building itself, it having been de-
cided that the lessor, or one standing in his place, can-
not alter the building so as to prevent light and air
from passing through a ''well" as it did at the time of
the lease.'^^'' And it has likewise been decided that the
tenant of an upper floor cannot obstruct the passage of
light to a lower floor through a grating'' ^'^ or skylight.^ ^'^
In the various cases referred to, the light in question
was presumably necessary' for any proper enjoyment
of the premises, and they may perhaps be regarded as
coming within the exception to the general rule, some-
times asserted,^^^ that a grant of a right to light will
be implied so far as it is absolutely necessary.''**^
User must be apparent. That an easement
may thus be created because corresponding to a pre-
existing quasi easement, the quasi easement, that is,
the user of one tenement for the benefit of the other by
their common owner, must, it is said, have been appar-
ent,''^'^ and it was apparent, it has been stated, if its
98b. Brande v. Grace, 154 easement in such light and air as
Mass. 210, 31 N. E. 633. was "essential to the beneficial en-
98c. Case v. Minot, 158 Mass. joyment of the leased tenement."
577, 22 L. R. A. 536, 33 N. E. which he could assert against
700. one subsequently taking a lease
88d. Spies v. Damm, 54 How. of adjoining land from the same
Pr. (N. Y.) 293. lessor. And in Stevens v. Salo-
98e. O'Neill v. Breese. 3 Misc. mon, 39 Misc. 159, 79 N. Y. Supp.
219. 23 N. Y. Supp. 526. See 136, that the lessor could not
Morgan v. Smith. 5 Hun (N. Y.) cut off light "essential to the
220. beneficial use."
9Sf. Ante, § this section, note 98h. Whiting v. Gaylord. 66
97. Conn. 337, 50 Am. St. Rep. 87, 34
98g. In Darnell v. Columbus Atl. 85; Hyde Park Thompson
Show Case Co., 129 Ga. 62, 58 S. Houston Light Co. v. Brown, 172
E. 631, 13 L. R. A. N. S. 333, it 111. 329, 50 N. E. 327; Powers v.
was held that the lessee had an Heffernan, 233 111. 597, 84 N. E.
§ 363]
Easements.
1279
existence was indicated by signs which must necessarily
have been seen, or which might be seen or known on a
careful inspection by a person ordinarily conversant
with the subject.'^'' Accordingly, the question whether
the user of land for a drain or aqueduct which is under
ground or covered by buildings is apparent for the
purpose of the rule depends, it seems, on whether
there is any object in sight from the land purchased,
as being thereon or near thereto, such as a pump or a
sink, which indicate the presence of the aqueduct
or drain. ^
The user of land for purposes of {passage is appar-
ent, it seems, so as to give to the transferee of the quasi
dominant tenement a right of way over the land re-
tained, if there is a well marked road or path, either
constructed for the purpose,^ or as a result of con-
l>61; Fetters v. Humphreys, 18 N.
J. Eq. 260, 19 N. J. Eq. 471; Lamp-
man V. Milks, 21 N. Y. 505; Butter-
worth V. Crawford. 46 N. Y. 349,
7 Am. Rep. 352; Phillips v. Phil-
lips, 48 Pa. St. 178, 86 Am. Dec.
577; Providence Tool Co. v. Cor-
liss Steam Engine Co., 9 R. I.
564; Sanderlin v. Baxter, 76 Va
299, 44 Am. Rep. 165.
99. Gale, Easements (8th Ed.)
116; Pyer v. Carter, 1 Hurlst. &
N. 916. See to this effect, Ingalls
V. Plamondon, 75 111. 118; Taylor
V. Wright, 76 N. J. Eq. 121, 79
Atl. 433; Butterworth v. Craw-
ford, 46 N. Y. 349, 7 Am. Rep.
352; Rollo v. Nelson, 34 Utah,
116, 26 L. R. A. (N. S.) 315, 96
Pac. 263.
In Brown v. Dickey, 106 Me.
97, 75 Atl. 382, it is said that the
easement must be "indicated by
objects which are necessarily
seen or would be ordinarly ob-
servable by persons familiar with
the premises."
1. For cases in which a quasi
easement involving the use of
land for a drain or aqueduct
was 'held to be apparent, see
Pyer v. Carter, l Hurlst. & N.
916; Schwann v. Cotton (1916),
2 Ch. 120; McPherson v. Acker,
:MacArthur & M. (D. C.) 150, 48
Am. Rep. 749; Tooth v. Bryce.
50 N. J. Eq. 589, 25 Atl. 182;
Larsen v. Peterson, 53 N. J. Eq.
88, 30 Atl. 1094; Miller v. Skaggs,
79 W. Va. 645, Ann. Cas. 1918D,
929, 91 S. E. 536. For cases in
which it was held not to be ap-
parent, see Robinson v. Hillman,
36 Dist. Col. App. 241; Carbrey
V. Willis, 7 Allen (Mass.) 364,
83 Am. Dec. 688; Covell v. Bright,
157 Mich. 419, 122 N. W. 101;
Butterworth v. Crawford, 46 N.
Y. 349, 7 Am. Rep. 352; Scott v.
Beutel, 23 Gratt. (Va.) 1.
2. Robinson v. Hillman, 36
Dist. Col. App. 241; Teachout v.
1280 Real Property. [§ 363
stant or prolonged user.^ There are however ocasional
judicial expressions to the effect that a way is never
to be regarded as apparent for this purpose.'^*
The requirement that the user of the land have
been apparent is perhaps based on the consideration
that if the user was not apparent, the one to whom the
quasi dominant tenement is conveyed cannot be pre-
sumed to have had any knowledge thereof, or to have an-
ticipated that he would enjoy a like right of user. But
this consideration appears to be of uniform impor-
tance only on the assumption that every conveyance is
a bilateral transaction, that, in other words, it is effec-
tive because representing an agreement between the
parties. A conveyance is, no doubt, in the ordinary
case, the result of a prior agi^eement, and the require-
ment of the ''acceptance" of a conveyance, so fre-
quently asserted in this country,"^** involves the idea that
the conveyance, to be effective, must also be agreed to
by the grantee after its execution. Nevertheless a con-
veyance may well be made which is not the result of
agreement, and which is valid in spite of the inability of
the grantee to accept. Suppose a conveyance of
the quasi dominant tenement is made by wav of gift
to a child one year old. Why should the fact that the
user of the quasi servient tenement is apparent or not
apparent affect the question whether the conveyance
Duffus, 141 Iowa, 466, 119 N W. N. J. Eq. 471; Michelet v. Cole,
983; Keokuk Electric Ry. & Power 20 N. Mex. 357, 149 Pac. 310. In
Co. V. Weisman, 146 Iowa, 679. Duvall v. Ridout, 124 Md. 193,
126 N. W. 60; Hankins v. Hen- L. R. A. 1915C, 345, 92 Atl. 209.
Hendricks, 247 111. 517, 93 N. E. it is said that there is no implied
428; Scott v. Moore, 98 Va. 66S. grant of a way, though well de-
71 Am. St. Rep. 749, 37 S. E. fined, unless it is enclosed or im-
342; Hammond v. Ryman, 120 Va. proved, or is actually necessary.
131, 90, S. E. 613. And Allers v. Beach, 130 Md. 499,
3. Stone v. Burkhead, 160 Ky. 100 Atl. 781, is adverse to the
47, 169 S. W. 489 (semble) ; Liquid "implied" grant of a right of w.ay
Carbonic Co. v. Wallace, 219 Pa. in any case, if not a way of neces-
457, 68 Atl. 1021. sity.
3a. Fetters v. Humphreys, 19 3b. Post, § 463.
§ 363]
Easements.
1281
creates an easement in favor of the infant? And the
same difficulty suggests itself in connection with a devise
of the quasi dominant tenement,'* in which case the
devisee may be ordinarily supposed to be ignorant of
the devise until after the testator's death. If the
testator has habitually made use of one part of his land
for the benefit of another, why should not a devise of
this latter part be presumed to be intended to include
the right of user to the same extent when the user is
not apparent as wlien it is apparent? And even in the
case of a conveyance of the quasi dominant tenement
by way of sale, the fact that the user is not apparent
might well be disregarded if the grantee knows other-
wise of such user by the grantor.^
User must be continuous. In order that an
easement may thus be created as corresponding to a pre
existing quasi easement, the previous user must also,
it is ordinarily stated, have been continuous." In some
4. Post, note 30.
5. The statement that the user
must be apparent, like the state-
ment that it must be continuous
a;ppears to have originated in
Gale and Whatley on Easements,
published in 1839, these authors
adopting the expressions "appar-
ent" and "continuous" from the
French Civil Code. See Lord
Blackburn's remarks in L. R. o
App. Cas. at p. 821. There were
quite a number of cases prior to
the date named, an 3 indeed sub-
sequent thereto, in which the doc-
trine of the grant of an easement
as corresponding to a pre-exist-
ing quasi easement was recog-
nized, but in which there was no
suggestion of any necessity that
the prior user have been appar-
ent or continuous. See cases re-
ferred to, Gale, Easements (8th
Ed.) 117 et seq. The requirement
of the French Code in this re-
spect appears to have been based
upon certain of the customary
laws, and upon the decisions of
the courts, of old France. See the
references in a suggestive note
in 65 University of Penna. Law
Rev. at p. 77. In Brissaud, French
Private Law (Continental Legal
History Series) p. 424, it is said
that in the old law the doctrine
of implied grant based on pre-
vious usage, ordinarily referred to
as "destination du pere de famine''
seems to have applied only to
visible servitudes, but that there
is not a very clear distinction
made between their being visible
and being continuous.
6. Worthington v. Gimson, 2
El. & El. 618; Wheeldon v. Bor-
rows, 12 Ch. Div. 31; Walker v.
1282
Real Peoperty.
[§ 36^
cases the view is taken that the user is continuous if
no further act of man is necessary to its continuous
exercise," while in other cases the question is said to
be whether there is a permanent adaptation of the
tw^o tenements to the exercise of the user.^ Givins: the
former signification to the expression, it is difficult to
see any propriety in the requirement of. continuousness.
Giving the latter signification thereto, the requirement
appears to be, not that the user be continuous, but that
there be such an adaption of the two tenements for the
purpose of such user as to indicate an intention that
the user shall be permanent or approximately perma-
nent, and there are cases in which this view is ex-
pressed.^
Clifford, 128 Ala. 67, 86 Am. St.
Rep. 74, 29 So. 588; Whiting v.
Gaylord, 66 Conn. 337, 50 Am. St.
Rep. 87, 34 Atl. 85; Powers v.
Heffernan, 233 111. 597, 84 N. E.
661; Larsen v. Peterson, 53 N. J.
Eq. 88, 30 Atl. 1094; Lampman
Milks, 21 N. Y. 505; Longendyke
V. Anderson, 101 N. Y. 625, 4 N.
E. 625; Sanderlin v. Baxter, 76
Va. 299, 44 Am. Rep. 165.
7. Bonelli v. Blakemore, 66
Miss. 136, 14 Am. St. Rep. 550.
5 So. 228; Providence Tool Co. v,
Corliss Steam Engine Co., 9 R. I.
564; Morgan v. Meuth, 60 Mich.
238, 27 N. W. 509. This is the
meaning given to the expression
by the French law. Code Napoleon
Art. 688. See editorial note, 65
University Penna. Law Rev. 77.
8. Toothe v. Bryce, 50 N. J.
Eq. 589, 25 Atl. 182; Larsen v.
Peterson, 53 N. J. Eq. 88. 30 Atl.
1094; John Hancock Mut. Life
Ins. Co. V. Patterson, 103 Ind. 582,
53 Am. Rep. 550, 2 N. E. 188;
Paine v. Chandler. 134 N. Y. 385,
19 L. R. A. 99, 32 N. E. 18;
Spencer v. Kilmer, 151 N. Y. 390,
45 N. E. 865.
9. John Hancock Mut. Life
Ins. Co. V. Patterson, 103 Ind
582, 53 Am. Rep. 550, 2 N. E
188; Starrett v. Baudler, — Iowa.
— , 165 N. W. 216; Carmon v.
Dick, 170 N. C. 305, 87 S. E.
224; Baker v. Rice, 56 Ohio St.
463, 47 N. E. 653; German Sav-
ings & Loan Society v. Gordon.
54 Ore. 147, 26 L. R. A. (N. S.)
331., 102 Plac. 736; -Phillips v.
Phillips. 48 Pa. St. 178, 86 Am.
Dec. 577; Scott v. Moore, 98 Va.
668, 81 Am. St. Rep. 749, 37 S. E.
342 (semble).
In occasional New Jersey deci-
sions continuous and apparent
appear to be regarded as con-
vertible terms. Fetters v. Humph-
reys, 18 N. J. Eq. 260; Taylor v.
Wright, 76 N. J. Eq. 121, 79 Atl.
433. And see as to the lack of
distinction in this regard, in the
old French law, oiite, this sec-
tion note 5, ad fin.
§ 363]
Easements.
1283
The maintenance of a drain or aqueduct has been
regarded as involving a continuous user/'' while, on
the other hand, the going on land to obtain water has
been regarded as not continuous.^ ^
Whether the user of land for purposes of passage
is continuous within the meaning of this asserted re-
quirement is a matter on which there has been con-
siderable difference of opinion, and while some cases
seem to regard is as necessarily discontinuous, because
not constantly exercised,^- other cases regard it as
continuous if there is a clearly-defined road over the
servient tenement, evidently intended for the use of
the dominant tenement.'^
10. Larsen v. Peterson, 53 N.
J Eq. 88, 30 Atl. 1094; Paine v.
Chandler. 134 N. Y. 385. 19 L. R.
A. 99. 32 X. E. 18; Sanderlin v.
Baxter, 76 Va. 299; Hoffman v.
Shoemaker, 69 W. Va. 233, 34 L.
R. A. (X. S.) 632, 71 S. E. 198;
Dodd V. Burchell. 1 Hurlst. & Colt
113; Schwann v. Cotton (1916), 2
Ch. 120.
11. Polden V. Bastard. L. R. 1
Q. B. 156; O'Rorke v. Smith, 11
R. I. 259, 23 Am. Rep. 440. Con-
tra. Eliason v. Grove, 85 Md. 215,
36 Atl. 844, in which case, how-
ever, there was a continuous
adaptation of the premises, in
the shape of a gate near the
v.ell.
12. Worthington v. Gimson, Z
El. & El. 618; Brett v. Clowser,
5 C. P. Div. 376; Oliver v. Hook,
47 Md. 301; Bentley v. Mills, 174
Mass. 469, 54 N. E. 885 (semble) :
Morgan v. Meuth. 60 Mich. 238, 27
N. W. 509; Bonelli v. Blakemore,
66 Miss. 136, 14 Am. St. Rep. 550,
5 So. 228; Fetters v. Humphreys,
18 N. J. Eq. 260, 19 X. J. Eq. 471:
Kelly v. Dunning, 43 X. J. Eq.
62, 10 Atl. 276; Parsons v. John-
son. 68 X. Y. 62, 23 Am. Rep.
149; Carmon v. Dick, 170 N. C.
305, 87 S. E. 224; Providence Tool
Co. v. Corliss Steam Engine Co.,
9 R. I. 504: O'Rorke v. Smith, 11
R. I. 259; Standiford v. Goudy.
6 W. Va. 364.
13. Brown v. Alabaster, 37 Ch.
Div. 490; Thomas v. Owen, 20 Q.
B. Div. 225; Watts v. Kelson, 6
Ch. App. 166; Ellis v. Bassett,
128 Ind. 118, 25 Am. St. Rep. 421,
27 N. E. 344; Stone v. Burkhead,
160 Ky. 47, 169 S. W. 489; Elia-
son V. Grove, 85 Md. 215, 36 Atl.
844; Gorton Pew Fisheries Co.
V. Tolman, 210 Mass. 412, 97 N.
E. 54; Phillips v. Phillips, 48 Pa.
St. 178, 86 Am. Dec. 577; Zell v.
Universalist Society, 119 Pa. St.
390, 4 Am. St. Rep. 654, 13 Atl.
447; Com. v. Burford, 225 Pa.
93, 73 Atl. 1064; Hammond v.
Ryman, 120 Va. 131, 90 S. E. 613;
And see Martin v. Murphy, 221
111. 632, 77 N. E. 1126; Feitler v.
Dobbins, 263 111. 78, 104 X. E
1284 Eeal Property. [§ 363
Occasionally it lias been said to be of primary im-
portance that the user, or the mode of exercising the
user, have been in its nature permanent or approxi-
mately permanent/^ and certainly the mere fact that
the grantor is, at the time of the conveyance, making
a temporary use of the land retained for the benefit of
of the land conveyed, without any permanent adaptation
of the land to the exercise of the user, is not calculated to
induce the belief that the parties intend that the
grantee shall be entitled to continue or repeat such
user. Suppose for instance the grantor is piling on
the land retained hay taken from the land conveyed,
such temporary user of the land retained for the bene-
fit of the land conveyed is an insufficient basis on
which to support a construction of the conveyance as
including a right in subsequent years so to pile the hay
from the land conveyed. It is in this sense only, as
involving a requirement of permanency in the mode
of user that, as above indicated, the requirement of con-
tinuousness seems to be appropriate in this connection.
User must be necessary. In this countr^^ the
cases usually say that an easement is not thus created
in favor of the transferee of land, as corresponding to
a preexisting qiiasi easement, unless the easement, or
the particular user involved therein, is "necessary,"
qualifying this expression, however, by other words
indicating that this requirement of necessity means
little if any more than highly desirable. ^^ Thus it has
been said that the easement must be necessary to the
1088. Stephens v. Boyd, 157 Iowa, 570,
It has been said that the re- 138 N. W. 389. And cases cited
quirement of continuousness does (nite^ this subsection, note 9.
not apply to the case of a way. 15. The English cases do not
Hoffman v. Shoemaker, 69 W. Va. ordinarily refer to such a require-
233, 34 L. R. A. (N. S.) 632, 71 S. ment, but occasionally they do
E. 198. so. Wheeldon v. Burrows, 12 Ch.
14. See Liquid Carbonic Co. v. Div. 31; Suffield v. Brown, 9 Jur.
Wallace, 219 Pa. 457, 68 Atl. 1021; (N. S.) 1001; Watts v. Kelson,
§ 363]
Easements.
1285
proper enjoyment of the land,^*^ or to its reasonable/^
or convenient, ^^ or beneficial^*' enjoyment, or "reason-
ably necessary" to its enjoyment or use,-° or to its
convenient nse,^^ or "clearly necessary to its beneficial
use. "22
6 Ch. App. 166; Ewart v. Coch-
rane, 4 Macq. 117.
16. Evans v. Dana, 7 R. I. 306;
Whiting V. Gaylord, 66 Conn. 337.
50 Am. St. Rep. 87, 34 Atl. 85.
17. Spencer v. Kilmer, 151 N.
Y. 390, 45 N. E. 865; Cave v.
Crafts, 53 Cal. 135; Robinson v.
Clapp, 65 Conn. 365, 29 L. R. A.
582, 32 Atl. 939; Eliason v. Grove,
85 Md. 215, 36 Atl. 844; Powers
v. Heffernan, 233 111. 597, 84 N.
E. 661.
18. Kane v. Templin, 158
Iowa, 24 138 N. W. 901; Hankins
v. Hendricks, 247 111. 517, 93 N.
E. 428 (highly convenient and
beneficial) ; Phillips v. Phillips,
48 Pa. St. 178, 86 Am. Dec. 577;
McElroy v. McLeay, 71 Vt. 396.
19. Case v. Minot, 158 Mass.
577, 22 L. R. A. 536, 33 N. E.
700; Sandford v. Boss. 76 N. H.
476, 84 Atl. 936; Carmon v. Dick,
170 N. C. 305, 87 S. E. 224.
20. Gaynor v. Bauer, 144 Ala.
448, 3 L. R. A. (N. S.) 1082, 39
So. 749; Wilson v. Riggs, 27 App.
Cas. (D. C.) 550; Robinson v.
Hillman, 36 App. Cas. (D. C.)
241; John Hancock Mut. Life Ins.
Co. V. Patterson, 103 Ind. 582. 53
Am. Rep. 550, 2 N. E. 188;
Teachout v. Duffus, 141 Iowa, 466,
119 N. W. 983; Irvine v. Mc-
Creary, 108 Ky. 495, 22 Ky. L.
Rep. 169, 49 L. R. A. 417, 56 S.
W. 966; Dolliff v. Boston & M.
R. Co., 68 Me. 173 (clearly neces-
sary to beneficial enjoyment) ;
Dinneen v. Corporation for Relief
of Widows & Children of the
Clergy of Protestant Episcopal
Church of the Diocese of Mary-
land, 114 Md. 589, 79 Atl. 1021;
Johnson v. Knapp, 146 Mass. 70,
15 N. E. 134, 150 Mass. 267, 23 N.
E. 40 ; Bussmeyer v. Jablonsky,
241 Mo. 681, 39 L. R. A. (N. S.)
549, Ann. Cas. 1913C, 1104. 145 S.
W. 772; Sanford v. Boss, 76 N.
H. 476, 84 Atl. 936 (to beneficial
enjoyment) ; Taylor v. Wright, 76
N. J. Eq. 121, 79 Atl. 433 (ditto) ;
Fowler v. Wick, 74 N. J. Eq. 603,
70 Atl. 682; Paine v. Chandler,
134 N. Y. 385, 19 L. R. A. 99, 32
N. E. 18; Baker v. Rice, 56 Ohio
St. 463, 47 N. E. 653; Rightsell
V. Hale, 90 Tenn. 556, 18 S. W.
245; Rollo v. Nelson, 34 Utah,
116, 26 L. R. A. (N. S.) 315, 96
Fac. 263 (for use and convenient
enjoyment) ; Goodal v. Godfrey,
53 Vt. 219, 38 Am. Rep. 671; San-
derlin v. Baxter, 76 Va. 299, 44
Am. Rep. 165; Hammond v. Ry-
man, 120 Va. 131, 90 S. E. 613
(reasonably essential to its use);
Miller v. Skaggs, 79 W. Va. 645,
Ann. Cas. 1918D, 929, 91 S. E.
536.
21. New Ipswich W. L. Fac-
tory v. Batchelder, 3 N. H. 190;
John Hancock Mut. Life Ins. Co.
V. Patterson, 103 Ind. 582, 53 Am.
Rep. 550, 2 N. E. 188 (reasonably
necessary to fair enjoyment).
22. Stevens v. Orr, 69 Me. 323.
1286
Real Property.
[§
It is impossible to deduce from the cases any general
rule by which to determine the existence of this "neces-
sity," so called, and such a rule is, perhaps, in the na-
ture of things, impossible of formulation. That the
necessity need not be absolute, in the sense that there
can be no enjoyment whatsoever of the land without
the exercise of the easement, is apparent from all the
decisions.-^ In a few states it has been said that the
question of necessity is determined by the consideration
whether a substitute for the easement can be procured
by ''reasonable" trouble and expense.^^
23. See McPherson v. Acker,
MacArthur & M. (D. C.) 150. 48
Am. Rep. 749; Cihak v. Klekr, 117
111. 643, 7 N. E. Ill; John Han-
cock Mut. Life Ins. Co. v. Pat-
terson, 103 Ind. 582, 53 Am. Rep.
f50, 2 N. E. 188; Dolliff v. Boston
& M. R. Co., 68 Me. 173; Gorton
Pew Fisheries Co. v. Tolman, 210
Mass. 412, 97 N. E. 54; Bonelli
\. Blakemore, 66 Miss. 136, 14
Am. Si. Rsp. 550, 5 So. 228; Kelly
V. Duncomb, 43 N. J. Eq. 62, 10
Atl. 276; Lampman v. Milks, 21
N. Y. 505; Paine v. Chandler, 134
N. Y. 385, 19 L. R. A. 99, 32 N. E.
18; Spencer v. Kilmer, 151 N. Y.
390, 45 N. E. 865; Phillips v.
Phillips, 48 Pa. St. 178, 86 Am.
Dec. 577; Providence Tool Co. v.
Corliss Steam Engine Co., 9 R.
I. 564; Goodall v. Godfrey, 53 Vt.
219, 38 Am. Rep. 671.
It has been said, in two states,
that the grant of an easement
will be implied in cases of "strict
necessity" only. Warren v. Blake,
54 Me. 276; Stillwell v. Foster, 80
Me. 333, 14 Atl. 731; Buss v. Dyer,
125 Mass. 287. And see Malsch
V. Waggoner, 62 Wash. 470. 114
Pac. 446; Roe v. Walsh, 76 Wash.
148, 136 Pac. 1146, 135 Pac. 1031.
But in view of other decisions
in these states it is evident that
it is not meant by this that the
easement must be necessary for
the purpose of any enjoyment
whatsoever of the land. See
cases previously cited in this
note, and Stevens v. Orr, 69 Me.
233; Johnson v. Knapp, 146 Mass.
70, 15 N. E. 134; Case v. Minot,
158 Mass. 577, 22 L. R. A. 536, 33
N. E. 700. Occasionally it has
been said to be sufficient that
the easement be highly convenient
and beneficial. See Adams v.
Gordon, 265 111. 87, 106 N. E.
517.
24. Warren v. Blake, 54 Me.
276; Dolliff v. Boston & M. R.
Co., 68 Me. 173; Johnson v. Jor-
dan, 2 Mete. (Mass.) 234; Thayer
V. Payne, 2 Cush. (Mass.) 327;
Carbrey v. Willis, 7 Allen (Mass.)
364, 83 Am. Del. 688; Randall v.
M'Laughlin, 10 Allen (Mass.) 366;
Smith V. Blanpied, 62 N. H. 652;
Scott V. Beutel, 23 Graft. (Va.) 1,
§ 363] Easements. 1287
The fact tbat the easement is necessary for the pur-
pose of a full enjoyment of the land conveyed is no doubt
a consideration tending to show that the grantee of
the land expects to have such an easement, correspond-
ing to the preexisting quasi easement, as appurtenant to
the land conveyed, and that the grantor expects him to
have it. In other words the great desirability of the
easement is a consideration, of greater or less weight,
in favor of the assumption that the conveyance of the
land is intended to be, not of the land alone,
but of the land with the easement appurtenant
thereto. Conversely, the fact that the easement is
not highly desirable for the enjoyment of the land
conveyed is a consideration adverse to the view that
the grantor intends the grantee to acquire, or that
the grantee expects to acquire, such easement. The
courts tend in terms to base this requirement of neces-
sity, so called, upon the impolicy of imphdng a grant
in excess of the express words of the conveyance, and
the desirability of making such implication only in case
of necessity, but the meaning of this appears to be
merely that the language of the conveyance is not to
be extended by construction so as to include an case-
ment not expressly referred to, and not before existing,
unless this easement is so desirable for the full enjoy-
ment of the land conveyed that a conveyance of the land
without the easement is unlikely to have been within
the contemplation of the parties.
Actuality of user. Tlie mere fact that the
land retained is capable of user in a particular way
for the benefit of the land conveyed is obviously in itself
no reason for regarding an easement of that character
as passing by the conveyancCj^** and tlie fact that such
25. See the excellent opinion of 26. Haverhill Sav. Bank v.
Dodge, J., in Miller v. Hoeschler. Griffen, 184 Mass. 419, 68 N. E.
126 Wis. 263, 8 L. R. A. (N. S.) 839; Latta v. Catawba Elec. Co.,
£27, 10.5 N. W. 790. 146 N. C. 285, 59 S. E. 1028;
1288
Eeal Property.
r§ 363
user has taken place in the past, during the common own-
ership of the two properties, is immaterial if it was
abandoned before the conveyance was made.^" That
there has been a temporary cessation of the user at that
time is not however, it seems, conclusive against the
construction of the conveyance as passing the land
with the easement as appurtenant thereto.^^
Character of conveyance. An easement has
been regarded as thus passing because corresponding
to a preexisting quasi easement, not only when the
grantor retains the land which is sought to be subjected
to the easement, but also when he disposes of this latter
land by a contemporaneous conveyance.^** And it has
been regarded as so passing upon a devise of land as
well as of a conveyance,^^ and upon a lease as well as
upon a conveyance in fee simple. ^^ Likewise a mortgage
« Brown v. Dickey, 106 Me. 97, 75
Atl. 382; Belser v. Moore, 73 Ark.
296, 84 S. W. 219.
27. Gorton Pew Fisheries Co.
V. Tolman, 210 Mass. 412, 97 N.
E. 54; Bauer & Co. v. Chamber-
lain, 159 Iowa, 12, 138 N. W. 903;
Van Rossum v. Grand Rapids
Brewing Co., 129 Mich. 530, 89
N. W. 370; McHart v. McMiiUin.
30 Can. Sup. Ct. 245.
28. Elliott V. Rhett, 5 Rich. L.
(S. C.) 405, 57 Am. Dec. 750;
Simmons v. Cloonan, 81 N. Y.
557.
29. Allen v. Taylor, 16 Ch. D.
355; Phillips v. Low (1892), 1 Ch.
47; Henry v. Koch, 80 Ky. 391,
44 Am. Rep. 484; Stephens v.
Boyd, 157 Iowa, 570, 138 N. W.
S89; Larsen v. Peterson, 53 N. J.
Eq. 88, 30 Atl. 1094; Baker v.
Rice, 56 Ohio St. 463, 47 N. E.
653; Cannon v. Boyd, 73 Pa. St.
179. Compare Whyte v. Build-
ers' League of New York, 164 N.
Y. 429, 58 N. E. 517. As in the
case of conveyances made by sev-
eral cotenants for purposes of
partition. O'Daniel v. Baxter, 112
Ky. 334, 65 S. W. 805; Robinson
V. Hillman, 36 App. Cas. (D. C.)
241; Johnson v. Gould, 60 W. Va.
84, 53 S. E. 798; Clark v. De-
baugh, 67 Md. 430, 10 Atl. 241.
30. Jones v. Sanders, 138 Cal.
405; Cheda v. Bodkin, 173 Cal.
7, 158 Pac. 1025; Stephens v.
Boyd, 157 Iowa, 570, 138 N. W.
389; Gorton Pew Fisheries Co.
V. Tolman, 210 Mass. 402, 38 L
R. A. (N. S.) 882, 97 N. E. 54;
iViuse V. Gish, 114 Va. 90, 75 S.
K. 764; Pearson v. Spencer, 3 B.
& S. 761; Phillips v. Low, L.
R (1892) 1 Ch. 47; Schwann v.
Cotton (1916) 2 Ch. 120.
31. See Snow v. Pulitzer 142
^ 363]
Easements.
1289
of the quasi dominant tenement may have a similar op-
eration in this regard, the purchaser at a foreclosure
sale thereof thus acquiring an easement corresponding
to the quasi easement existing at the time of the mort-
gage.^- And the same doctrine has been applied in favor
of one acquiring title to the quasi dominant tenement by
a judicial sale,^^ or a sale under execution,^^ and a
conveyance in accordance therewith, and also in favor
of one acquiring title from commissioners or other
officials appointed to make partition.^^
Ownership of servient tenement. Since a per-
son cannot create an easement in another's land, a
N. Y. 263, 36 N. E. 1059; Thropp
V. Field, 26 N. J. Eq. (11 C. E.
Green) 82; Miller v. Fitzgerald
Dry Goods Co., 62 Neb. 270, Si5
N. W. 1078; Comm. v. Burford, 225
Pa. 52, 73 Atl. 1064; and other
citations in. 1 Tiffany, Landlord
& Ten. § 128.
32. Pendola v. Ramm, 138 Cal.
517, 71 Pac. 624; John Hancock
Mut. Life Ins. Co. v. Patterson,
103 Ind. 582, 53 Am. Rep. 550, 2
N. E. 188; Carrig v. Mechanics
Bank, 136 Iowa, 261, 111 N. W.
329; Havens v. Klein, 51 How.
Pr. (N. Y.) 82; Pennsylvania R.
Co. V. Jones, 50 Pa. St. 417.
In Harlow v. Wlhitcher, 136
Mass. 553, it was held that the
fact that the mortgagee of land
released a part thereof from tae
mortgage did not impose an eas:-
ment on the other part, as
against the mortgagee, corre-
sponding to a user then made by
the mortgagor of the other part
for the benefit of the part re-
leased.
In Cannon v. Boyd, 73 Pa. St.
179, it was held, ai)parently, that
an easement passed to a pur-
chaser at a sale under the mort-
gage although the quasi ease-
ment did not exist until after the
making of the mortgage.
33. Zell V. Universalist Society,
119 Pa. St. 390, 4 Am. St. Rep.
654, 13 Atl. 447; Manbeck v. Jones,
190 Pa. St. 171, 42 Atl. 536.
34. Kieffer v. Imh.off, 26 Pa.
St. 438; Building Association v.
Getty, 11 Phila. 305.
35. Kilgour v. Ascham, 5 Har.
& J. (Md.) 82; Muir v. Cox, 110
Ky. 560, 62 S. W. 73; Ellis v.
Bassett, 128 Ind. 118, 25 Am. St.
Rep. 421, 27 N. E. 344; Brakely
V. Sharp, 9 N. J. Eq. 9, 10 Id.
206; Goodall v. Godfrey, 53 Vt.
219, 38 Am. Rep. 671; Burwell
v. Hobson, 12 Gratt. (Va.) 322,
65 Am. Dec. 247; Powell v. Riley,
15 Lea (Tenn.) 153; Gentry v.
Piercy, 175 Ky. 174, 193 S. W.
1017.
It has been applied in con-
nection with the assignment of
dower. Morrison v. King, 62 II!.
30. Compare Smilh v. Smith, 62
N. li. 652.
1290 Real Property. [§ 363
conveyance of land for the benefit of which other land,
not belonging to the grantor, is used without right or
merely under a license, does not have the effect of
vesting in the grantee an easement corresponding to
such prior use/^*' There are however decisions to the
eff'ect that if, in such case, the grantor subsequently ac-
quires the other land, such an easement will then arise
in favor of the grantee on the principle of estoppel. ^^
The difficulty with this view would seem to be that
there is nothing on which to base an estoppel. The
original conveyance did not in terms purport to create
an easement in favor of the grantee, and the user of
another's land at the time does not, it seems, as does
the user of his ovni land, seem a sufficient reason for
construing it, as against the grantor, as an attempted
conveyance of the land with an easement appurtenant
thereto in such other's land."*^
Since one who has an undivided interest in particu-
lar land cannot burden such land with an easement,^^
tliere can be no implication of a grant as corresponding
to a preexisting qtiasi easement if there is an out-
standing undivided interest in the property silbjected to
the user.^*^
36. Trump v. McDonnell. 120 Latta v. Catawba Elec. Co., 146
Ala. 200, 24 So. 353; Green v. N. C. 285, 59 S. E. 1028; .rarnigan
Collins, 86 N. Y. 246. v. Mairs, 1 Humph. (Tenn.) 473.
It has been decided that the 38. See Spencer v. Kilmer, 151
fact that the owner of the land N. Y. 390, 45 N. E. 865.
so used for the benefit of another's 39. Ante, § 361, note 35.
land joins in a conveyance of the 40. Farley v. Howard, 60 X.
latter, being the husband of the Y. App. Div. 173, 70 N. Y. Supp.
owner thereof, does not impose an 51, 172 X. Y. 628, 65 N. E. IIIC;
easement on his land. Farley v. Palmer v. Palmer, 150 N. Y. 139,
Howard, 60 N. Y. App. Div. 193, 55 Am. St. Rep. 653, 44 N. E.
172 N. Y. Supp. 28. 966. But See McElroy v. Mc-
37. Swedish-American Nat. Leay, 71 Vt. 396, 45 Atl. 898, to
Bank of Minneapolis v. Connec- the effect that in such case the
ticut Mut. Life Ins. Co., 83 Minn. grantee would have a right to
377, 86 N. W. 420; McElroy v. call for partition.
McLeay, 71 Vt. 396, 45 Atl. 898;
§ 363]
Easements.
1291
Conveyance with ** appurtenances." The de-
cisions are ordinarily to the effect that the fact that
a conveyance of the quasi dominant tenement is ex-
pressed to be "with the appurtenances" or with
certain rights '^appertaining and belonging" or that
similar general terms are nsed, does not in itself operate
to create an easement in the grantee equivalent to
the pre-existing quasi easement.^ ^ According to the
English cases, however, a conveyance of land with the
easements or rights "used and enjoyed therewith"
will create in favor of the grantee an easement cor-
responding to a quasi easement previously existing in
favor of the land conveved.^-
41. Worthington v. Gimson, 2
Ell. & El. 618; Baring v. Abing-
don (1892), 2 Ch. 374, 389; May
V Smith, 3 Mackey (D. C.) 55;
Kentucky Distilleries & Ware-
house Co. V. Warwick Co., 166
Ky. 651, 179 S. W. 611; Stevens
V. Orr, 69 Me. 323; Oliver v. Hook,
47 Md. 301; Duvall v. Ridout, 124
Md. 193, L. R. A. 1915C, 345, 92
Atl. 209; Grant v. Chase, 17
Mass. 443, 9 Am. Dec. 161; Mor~
gt.n V. Meuth, 60 Mich. 238, 27 N.
W. 509; Bonelli v. Blakemore, 66
Miss. 136, 14 Am. St. Rep. 550, 5
So. 228; Spaulding v. Abbott, 55
N. H. 423; Stuyvesant v. Wood-
ruff, 21 N. J. L. 133; Georke v.
Wadsworth, 73 N. J. Eq. 448, 68
Atl. 71; Michelet v. Cole, 20 N.
Mex. 357, 149 Pac. 310; Parsonr,
V. Johnson, 68 N. Y. 62, 23 Am.
Rep. 149; Morris v. Blunt, 49
Utah, 243, 161 Pac. 1127; Swazey
V. Brooks, 34 Vt. 451; Standiford
v. Goudy, 6 W. Va. 364.
Occasionally, however, the use
of the word "appurtenances" has
been regarded as effective for
this purpose. Thomas v. Owen,
20 Q. B. Div. 225; Wood v. Gray-
son, 22 App. Cas. (D. C.) 432;
Ihoma.s v. Wiggers, 41 111. 470;
Doyle V. Lord, 64 N. Y. 432, 21
Am. Rep. 659; Elliott v. Bailee,
14 Ohio St. 10; Miller v. Lapham,
44 Vt. 416 (with privileges) ;
Tayter v. North, 30 Utah, 156, 6
L. R. A. (N. S.) 410, 83 Pac. 762.
See Atkins v. Boardman, 2 Mete.
(Mass.) 457, 37 Am. Dec. 100.
42. Kay v. Oxley, L. R. 10 Q.
B. 360; Watts v. Kelson, 6 Ch.
App. 166; Barkshire v. Grubb, 18
Ch. Div. 616, Bayley v. Great
Western Ry. Co., 26 Ch. Div. 434.
So, where the owner of two ad-
joining tracts has used one (the
fjudsi servient tenement) for the
purpose of passing to the other
(the quasi dominant tenement),
while ,a conveyance of the lat-
ter tenement "with appurte-
nances" will not pass a right of
way, the conveyance, if with the
rights and easements "used and
enjoyed therewith," will have
that effect. Formerly it was held
1292
Eeal Pkoeerty.
[§ 363
Implied reservation. In some of the English
cases, and likewise in some decisions in this country,
it was held that, upon the transfer of the quasi servient
tenement by the owner, there was an implied reservation
of an easement corresponding to the quasi easement
l)efore existing, that is, the same doctrine was applied
in favor of the grantor of the land as in favor of the
grantee.^^ The later English cases, however, are to the
^effect that there no such reservation of an easement
as corresponding to a preexisting quasi easement is
to be implied, this view being based mainly on the
theory that the assertion of such an easement by the
grantor is in derogation of his own grant.^^ There are
likewise in several states decisions or dicta somewhat
adverse to the recognition of any such easement in
favor of the grantor as corresponding to a preexisting
that this principle applied only
in case the quasi easement had,
at a former time, when the gw^tsi
dorhinant and servient tenements
belonged to different persons, ex-
isted as an actual easement.
Thomson v. Waterlow, L. R. 6
Eq. 36; Langley v. Hammond, L.
R. 3 Exch. 168. This distinction
is, however, no longer recog-
nized.
43. Pyer v. Carter, 1 Hurl. &
N. 916; Thomas v. Owen, L. R.
20 Q. B. D. 225; Cheda v. Bodkin,
173 Cal. 7, 158 Pac. 1025; Cihak
v. Klekr, 117 111. 643, 7 N. E. Ill;
I'owers V. Heffernan, 233 111. 597,
16 L. R. A. (N. S.) 523, 122 Am.
St. Rep. 199, 84 N. E. 661; John
Hancock Mut. Life Ins. Co. v.
Patterson, 103 Ind. 582, 53 Am.
Rep. 550, 2 N. E. 188; Lebus v.
Boston, 21 Ky. Rep. 411, 47 L. R.
A. 79, 51 S. W. 609; Irvine v. Mc-
Creary, 108 Ky. 495, 49 L. R. A.
417, 56 S. W. 966; Znamaneck v.
Jelinek, 69 Neb. 110, 11 Am. St.
Rep. 533, 95 N. W. 28; Dunklee
V. Wilton R. Co., 24 N. H. 489;
Taylor v. Wright, 76 N. J. Eq.
121, 79 Atl. 433; Greer v. Van
Meter, 54 N. J. Eq. 270, 33 Atl.
794; Carmon v. Dick, 170 N. C.
305, 87 S. E. 224; Seibert v.
Levan, 8 Pa. St. 383, 49 Am. Dec.
525; Geible v. Smith, 146 Pa. St.
276, 28 Am. St. Rep. 796, 23 Atl.
437; Grace M. E. Church v. Dob-
bins, 153 Pa. St. 294, 34 Am. St.
Rep. 706, 25 Atl. 1120; Rightsell
V. Hale, 90 Tenn. 556, 18 S. W.
245; Harwood v. Benton, 32 Vt.
724; Bennett v. Booth, 70 W. Va.
264, 39 L. R. A. (N. S.) 618, 73
S. E. 909.
44. White v. Bass, 7 Hurl. &
N. 722; Suffield v. Brown, 4 De
Gex, J. & S. 185; Wheeldon v.
Burrows, 12 Ch. Div. 31; Ray v.
Hazeldene (1904), 2 Ch. 17.
•^ 363]
Easements.
1293
quasi easement, it being sometimes stated that an ease-
ment will be implied in favor of the grantor only when
it is strictly necessary^^ or strictly necessaiy for the en-
joyment of the land retained/^ that is, when it can be
implied as an easement of necessity. In some the fact
that the conveyance contains a warranty or covenant
against encumbrances is referred to as one considera-
tion adverse to recogiiition of such an easement in
favor of the grantor, a view which appears to he open
to considerable question, the purpose of a covenant in
a conveyance not being to determine the construction of
the instrument as regards the rights conveyed.'*^
The distinction asserted in the later English cases
between the implication of a grant, and of a reservation,
45. €herry v. Brizzolara, 89
Ark. 309, 21 L. R. A. (N. S.)
508, 116 S. W. 668; Warren v.
Blake, 54 Me. 276; Mitchell v.
Seipel, 53 Md. 251; Carbrey v.
Willis, 7 Allen (Mass.) 364, S3
Am. Dec. 688; Bass v. Dyer, 125
Mass. 287; O'Brien v. Murphy,
189 Mass. 353, 75 N. E. 700; Brown
V. Fuller, 165 Mich. 162, 33 L.
R. A. (N. S.) 459, Ann. Cas. 1912C,
853, 130 N. W. 621; Dabney v.
Child, 95 Miss. 585, 48 So. 897;
Meredith v. Frank, 56 Ohio St.
479, 47 N. E. 656; Sellers v. Texas
Cent. Ry. Co., 81 Tex. 458, 13
L. R. A. 657, 17 S. W. 32; Scott
V. Eeutel, 23 Gratt. (Va.) 1; (so
that substitute cannot be pro-
cured at reasonable expense);
Shaver v. Edgell, 48 W. Va. 502,
37 S. E. 664. To this effect is
Attrill V. Piatt, 10 Can. Sup. Ct.
425. In Crosland v. Rogers, 32
S. C. 130, 10 S. E. 874, it is said
that the necessity must be im-
perious.
46. Walker v. Clifford, 128 Ala.
2 R. l>.—1
67, 86 Am. St. Rep. 74, 29 So.
588; Wells v. Garbutt, 132 N. Y.
-1-30, 30 X. E. 978. In Starrett v.
Baudler, — ■ Iowa, — , 165 N. W.
216 it is said that there must be
no other reasonable mode of en-
joying the dominant tenement
without the easement.
47. Cherry v. Brizzolara, 89
Ark. 309, 21 L. R. A. (N. S.) 508,
116 S. W. 668; Carbrey v. Willis,
7 Allen (Mass.) 364, 83 Am. Dee.
088; McSweeney v. Comm. 185
Mass. 371, 70 N. E. 429; Brown
V. Fuller, 165 Mich. 162, 33 L. R.
A. (N. S.) 459, Ann. Cas. 1912C.
853. 130 N. W. 621; Dabney v.
Child, 95 Miss. 585, 48 So. 897;
Denman v. Mentz, 63 N. J. Eq.
613, 52 Atl. 1117; Howley v. Chaf-
fee, 88 Vt. 468, 93 Atl. 120. Th;it
the presence of such a oovenant
in the conveyance is immaterial,
see Bennett v. Booth, 70 W. Va.
264, 39 L. R. A. (N. S.) 618. 73
S. E. 909; Harwood v. Benton,
32 Vt. 724.
1294 Eeal, Property. [§ 363
of an easement corresponding to a preexisting quasi
easement, has been decided not to apply in connection
with what have been termed ''reciprocal" easements,
the only instance of which, given in the cases, is that of
the support of buildings, the rule in regard to them
l)eing that, when buildings are erected together by the
same owner in such a way as obviously to require
mutual support, and he thereafter conveys one of
them, the grantee is regarded as impliedly giving the
grantor a right of support for the house retained by
him in consideration of the right of support impliedly
granted for the house sold.^^ Likewise, in this country,
it appears to be considered that, if one builds houses
separated by a partition wall, and the houses are after-
wards conveyed to different persons, with the division
line running longitudinally through the wall, each house
is ordinarily entitled to an easement of support in
the part of the wall on the other's land, irrespective of
whether it was conveyed by the builder before or
after the conveyance of the other, that is, upon the
severance of ownership the partition wall becomes a
party wall.^^ It may be questioned, however, whether
the easement of support in favor of the grantor in such
cases might not rather be regarded as an easement
of necessity.
In order that an easement maj^ thus be recognized
in favor of the grantor, by way of implied reservation,
as corresponding to a preexisting quasi easement, the
48. Richards v. Rose, 9 Exch. App. Cas. (D. C.) 427; Ingalls
218; Suffield v. Brown, 4 De G2X. v. Plamondon, 75 111. 118; Everett
J. & S. 185; Wheeldon v. Bur- v. Edwards, 149 Mass. 588. 5 L.
rows, 12 Ch. Div. 31. See Steven- R. A. 110, 14 Am. St. Rep. 462.
son V. Wallace, 27 Grat. (Va.) 77; 22 N. E. 52; Carlton v. Blake, 152
Tunstall v. Christian, 80 Va. 1, Alass. 176, 23 Am. St. Rep. 818,
56 Am. Rep. 581; Adams v. Mar- 25 N. E. 83; Partridge v. Gilbert,
shall, 138 Mass. 228. Compare 15 N. Y. 601, 69 Am. Dec. 632;
Clemens v. Speed, 93 Ky. 284, Rogers v. Sinsheimer, 50 X. Y
19 L. R. A. 240, 19 S. W. 660. 646; Heartt v. Kruger, 121 N. Y.
49. Bartley v. Spaulding n 386, 9 L. R. A. 135, 18 Am. St.
§ 363] Easements. 1295
user of the land conveyed for the benefit of that retained
must, it is said, be apparent.^" And presumably any
other requirement that may in the particular juris-
diction be regarded as essential to the implication of
an easement in favor of the grantee of land, such as
continuousness and necessity, will be regarded as es-
sential to such an implication in favor of the grantor.
(c) Of easement of necessity. An easement
of necessity, so called, is an easement which arises
upon a conveyance of land, in favor of either the
grantor or grantee of the land, by reason of a
construction placed upon the language of the convey-
ance in accordance with what appears to be the neces-
sity of the case, in order that the land conveyed, or
sometimes, the land retained, may be properly avail-
able for use.
The purpose for which a conveyance of land is
made may call for a construction of the conveyance as
vesting in the grantee an easement as appurtenant to
the land, such an easement being necessary in order
that the land may be used as intended. Thus one who
conveys land to be used for a factory has been regarded
as granting such an easement, as regards tlie pollution
of air or water, as is evidently necessary to enable the
land to be used for that business,^ ^ and if he conveys it
Rep. 829, 24 N. E. 841; Schaefer 96 Wash. 529, 165 Pac. 385.
V. Blumenthal, 169 N. Y. 221, 62 50. Biddison v. Aaron, 102 Md.
N. E. 175. 156, 62 Atl. 523; Jobling v. Tut-
But see Cherry v. Brizzolara, 89 tie, 75 Kan. 351, 9 L. R. A. (N. S.)
Ark. 309, 21 L. R. A. (N. S.) 508, 960, 89 Pac. 699; Scott v. Beutel,
116 S. W. 668, to the effect that 23 Gratt. (Va.) 1; Sellers v. Tex-
this is so only if another wall as Cent. Ry. Co., 81 Tex. 458, 13
cannot be built at a reasonable L. R. A. 657, 17 S. W. 32. As to
expense. And as perhaps oppos- this requirement, see ante, this
ed to the implication of an ease- subsection, notes 1-5.
ment of support in such case see 51. Gale, Easements (8th Ed.)
Clemens v. Speed, 93 Ky. 284, 19 113, note f; Goddard, Easements,
L. R. A. 240, 19 S. W. 660; Wil- (6th Ed.) 205; Hall v. Lund, 1
liamson Inv. Co. v. Williamson, Hurl. & C. 676; Huntington & K.
1296 IIkai. Property. [§ 363
for tlie purpose of erecting a building, he may well be
regarded as granting such rights of support as are
necessary for the building.^^ So, if one conveys land
for railroad purposes, the conveyance involves in effect
a grant of the right to construct and operate the rail-
road in a proper manner, even in derogation of the
grantor's natural rights as regards land retained by
him,^^ and such an easement is like\\ise vested in the
railroad when the land is taken under condemnation
proceedings,^^ If one conveys 'minerals beneath his
land, the grantee may be entitled, on the same theory of
necessity, to the privilege of building air shafts and
water storage facilities, of erecting machinery in or on
the grantor's land, and of dumping waste thereon. ^^^
And in some states, while an easement of light is not
recognized merely because of a 'preexisting quasi ease-
ment of light, such an easement will, it seems, be
recognized, when the access of light to the land granted
over the land retained can be regarded as actually
necessary.^^^ Likewise when buildings on adjoining
Land Devel. Co. v. Phoenix Pow- Ry., 10 H. L. Cas. 333; Manning
der Mfg. Co., 40 W. Va. 711, 21 S. v. New Jersey Short Line R. Co.,
E. 1037. 80 N. J. L. 349, 32 L. R. A. (N.
And if he sells and conveys S.) 155, 78 Atl. 200.
land adjoining his pond for an 54a. Williams v. Gibson, 84
ice business he in effect grants a Ala. 228, 5 Am. St. Rep. 368, 4
privilege to demand that the pond So. 350; Gordon v. Park, 219 Mo.
be not drained. See 'Marshall 600, 117 S. W. 1163; Gordon v.
Ice Co. V. LaPlant, 136 Iowa, 621, Million, 248 Mo. 155, 154 S. W.
12 L. R. A. (N. S.) 1073, 111 N. 99; Marvin v. Brewster Co., 55
W. 1016. X. Y. 538; Fowler v. Delaplain,
52. Caledonian Ry. Co. v. 79 Ohio St. 279, 21 L. R. A. (N.
Spr,ot, 2 Macq. H. L. Cas. 453; S.) 100, 87 N. E. 260; Turner v.
Rigby V. Bennett, 21 Ch. Div. 559; Reynolds, 23 Pa. St. 199; Potter
Siddons v. Short, 2 C. P. Div. 572; v. Rend, 201 Pa. 318, 50 AtL 821;
Freeholders of Hudson County v. Dewey v. Great Lakes Coal Co.,
Woodcliff Land Co., 74 N. J. L. 236 Pa. 498, 84 Atl. 913; Arm-
355, 65 Atl. 844. strong v. :Maryland Coal Co., 67
53. See Lewis, Eminent Do- W. Va. 589, 69 S. E. 195; Dand
main, § 474. v. Kingscote, 6 Mees. & W. 174.
54. Elliot V Northeastern 54b. Ante, § 363(a), note 97.
§ 363 J Easemknts. 1297
lots belonging to a single person are dependent on one
another for support, and lie conveys one of the lots,
retaining the other, it may be considered that an ease-
ment of support *'By necessity" exists in each lot and
building in favor of the other ;^^° and even when there
is a building upon but one of the lots, it would seem
reasonable to recognize an easement of support, by way
of necessity, for the land of such lot with the added
weight of the building.^^^
Ways of necessity. By far the most usual
instance of an easement of necessity is a way of neces-
sity. Such an easement ordinarily arises when one
conveys to another land entirely surrounded by his, the
grantor's, land,^^ or which is accessible only across
either the grantor's land or the land of a stranger.^^
In such a case, unless the conveyance is regarded as
giving, as appurtenant to the land conveyed, a right
of way over the land retained by the grantor, the
grantee can make but a limited use, if any, of the land
54c. Ante, § 363b, notes, 48, 56. Gilfoy v. RandaU, 274 lU.
49. 128, 113 N. E. 88; Thomas v. Mc-
54d. See Sterrett v. Baudler, Coy, 48 Ind. App. 403, 96 N. E.
— Iowa, — , 165 N. W. 216. 14; Fairchild v. Stewart, 117
55. Pomfret v. Ricroft, 1 Iowa, 734, 89 N. W. 1075; Adams
Saund. 323, note 6; Pinnington v. v. Hodgkins, 109 Me. 361, 84 Atl.
Galland, 9 Exch. 1; Tayloi* v. 530; Zimmerman v. Cockey, 118
V/arnaky, 55 Cal. 350; Collins v. Md. 491, 84 Atl. 743; Pleas v.
Prentice, 15 Conn. 39, 38 Am. Dec. Thomas, 75 Miss. 495, 22 So. 820*
61; Mead v. Anderson, 40 Kan. Higbee Fishing Club v. Atlantic
203, 19 Pac. 708; Leonard v. Leon- City Elec. Co., 78 N. J. Eq. 434,
ard, 2 Allen (Mass.), 543; Powers 79 Atl. 326; Palmer v. Palmer,
V. Harlow, 53 Mich. 507, 51 Am. 150 N. Y. 139, 55 Am. Rep. 653,
Rep. 154, 19 N. W. 257; Board of 4t N. E. 966; Wooldridge v. Cough-
Sup'rs of Lamar County v. Elliott. lin, 46 W. Va. 345, 33 S. E. 233;
107 Miss. 841, 6G So. 203; Kim- Proudfoot v. Saffle, 62 W. Va. 51,
ball V. Cochecho R. Co., 27 N. 12 L. R. A. (N. S.) 482, 57 S. E.
H. 448, 59 Am. Dec. 387; Holmes 256.
V. Seely, 19 Wend. (.N. Y.) 507; "The deed of the grantor as
Bond V. Willis, 84 Va. 7{)»5, 6 S. much creates the way of necessity
E. 136. as it does the way by grant. The
1298
Eeaxi Peoperty.
[§ 363
conveyed to liim, and the courts, in pursuance of con-
siderations of public policy favorable to the full utiliza-
tion of the land, and in accordance with the presumable
intention of the parties that the land shall not be with-
out any means of access thereto, have established this
rule of construction that, in the absence of indications
of a contrary intention, the conveyance of the land
shall in such case be regarded as vesting in the grantee
a right of way across the grantor's land.-^^
Xot only may a way of necessity arise in favor of
the grantee of land, but it may also arise in favor of
the grantor, when one conveys land which is so situated
as to render land retained by him inaccessible except
over the land conveyed or the land of a stranger.^*
only difference between the two
is, that one is granted in express
words and the other only by im-
plication." Nichols V. Luce, 24
Pick. (Mass.) 102, 35 Am. Dec.
302, per Morton, J.
57. "Although it is called a
way of necessity, yet in strict-
ness, the necessity does not
create the way, but merely fur-
nishes evidence as to the real
intention of the parties. For the
law will not presume, that it
was the intention of the parties,
that one should convey land to
the other, in such manner that
the grantee could derive no bene-
fit from the conveyance; nor that
he should so convey a portion as
to deprive himself of the enjoy-
ment of the remainler. The law,
under such circumstances, will
give effect to the grant according
to the presumed intent of the
parties." Waite J., in Collins v.
Prentice, 15 Conn. 39, 38 Am.
Dec. 61.
58. Clark v. Cogge, Cro. Jac.
170; Pinnington v. Galland, 9
Exch. 1; Corporation of London
V. Riggs, 13 Ch. Div. 789; Collins
V. Prentice, 15 Conn. 39, 38 Am.
Dec. 61; Stamper v. McXabb, 172
Ky. 253, 189 S. W. 216; White-
house V. Cummings, 83 Me. 91, 23
Am. St. Rep. 756, 21 Atl. 743; Jay
V. Michael, 92 Md. 198, 48 Atl.
61; Nichols v. Luce, 24 Pick.
(Mass.) 102, 35 Am. Dec. 302;
New York & N. E. R. Co. v. Board
of Railroad Com'rs, 162 Mass. 81,
38 N. E. 27; Pleas v. Thomas, 75
Miss. 495, 22 So. 820; Herrin v.
Sieben, 46 Mont. 226, 127 Pac.
323; Pingree v. McDuffie, 56 N.
H. 306; Shoemaker v. Shoe-
maker, 11 Abb N. Cas. (N. Y.)
80; Meredith v. Frank, 56 Ohio
St. 479, 47 N. E. 656; Willey v.
Thwing, 68 Vt. 128, 34 Atl. 428;
Koffman v. Shoemaker, 69 W. Va.
233, 34 L. R. A. (N. S.) 632, 71 S.
E. 198.
§ 363] Easements. 1299
In such a case the conveyance is construed as passing,
not land free from any easement, but land subject to
an easement of a right of way in favor of the land re-
tained. Such an implied reservation of an easement to
a certain extent involves a violation of tlie rule which
precludes one from derogating from his own grant, but
it is recognized and upheld by the courts from the con-
siderations of public policy above mentioned/"^^
The fact that the conveyance contains a warranty or
other covenant of title has been regarded as insufficient
to exclude such an implication,*'" though it might no
doubt be excluded by language in the conveyance or,
it seems, by evidence of surrounding circumstances,
calling for a different construction.*''^'^
Since a reservation as w^ell as a grant of a right of
way may thus be implied on the ground of necessity, it
is iimnaterial, for the purpose of establishing a way
on this ground, whether the asserted dominant tene-
ment was disposed of by the common owner before or
after the asserted servient tenement.
In case the owner of land conveys to another
timber growing thereon, the conveyance is to a great
extent nugatory unless the grantee has the privilege of
going on the land in order to cut the timber, and con-
sequently the instrument would ordinarily be con-
strued as granting such privilege or, in other words,
he has a w^ay of necessity.*'^ And so a convej'^ance of
minerals in the soil is ordinarily regarded as giving
the privilege of passing over the grantor's land in
59. See Packer v. Welsted, 2 York etc. R. C. v. Board of Rail-
Sid. 39, 111; Button v. Tayler, 2 road Com'rs, 162 Mass. 81, 38 N.
Lutw. 1487; Pinnington v. Gal- E. 27; Jay v. Michael, 92 Md.
land, 9 Exch. 1. 198, 48 Atl. 61.
60. Meredith v. Frank, 56 Ohio 60a. Post, this section, notes
St. 479, 47 N. E. 656; McEwan 70-75.
V. Baker, 98 111. App. 271; Powers 61. Pine Tree Lumber Co. v.
V. Heffernan, 233 111. 597, 84 N. McKinley, 83 Minn. 419, 86 N. VV.
E. 661; Brig-ham v. Smith, 4 Gray 414; Worthen v. Garno, 182 Mas.s.
(Mass.) 297, 64 Am. Dec. 76; New 243, 65 N. E. 243.
1300
Eeal Property.
[§ 363
order to extract the minerals, and of constructing roads,
tram and railway tracks to such an extent as may be
necessary for this purpose,*^- and such a conveyance,
moreover, in order that it may be effective, ordinarily
involves of necessity the privilege of sinking shafts
through the surface of the land for the purpose of ex-
tracting the minerals.^2^ What is in effect a way of
necessity may also exist in connection with the grant of
an easement, in so far as this involves the necessity of
passing over the grantor's land in order to exercise
the easement.^^
A way of necessity does not, as is sometimes sup-
posed, exist merely by reason of the fact that otherwise
one has no access to his land.'^^ As above stated, it
62. Dand v. Kingscote, 6 M. &
W. 174; Consolidated Coal Co. v.
Savitz, 57 111. App. 659; Marvin
V. Brewster Iron Mining Co., 55
X. Y. 538, 14 Am. Rep. 322. Baker
V. Pittsburg C. & W. R. Co., 219
Pa. 398, 68 Atl. 1014; Pearne v.
Coal Creek M. & M. Co., 90 Tenn.
619, 18 S. W. 402; Porter v. Mack
Mfg. Co., 65 W. Va. 636, 64 S.
E. 853; 1 Barringer & Adams,
Mines & Mining, 576, 2 Id. 598.
62a. Cardigan v. Armitage, 2
Barn. & C. 197; Hooper v. Dora
Coal Min. Co., 95 Ala. 235, 10 So.
652; Ewing v. Sandoval C. & M.
Co., 110 111. 290; Ingle v. Bot-
toms, 160 Ind. 73, 66 N. E. 160;
Marvin v. Brewster Iron Mining
Co., 55 N. Y. 538; Baker v. Pitts-
burg C. & W. R. Co., 219 Pa. 398,
68 Atl. 1014; 3 Lindley, Mines,
§ 813.
In Chartiers Block Coal Co. v.
Mellon, 152 Pa. St. 286, 18 L. R. A.
702, 34 Am. St. Rep. 645, 25 Atl.
597, the owner of land having
conveyed to another the strata
of coal beneath the surface and
subsequently discovering the pres-
ence of oil beneath the coal, as-
serted the right to bore wells
through the coal, and his claim
was sustained. It was recognized
however that it could not well
be sustained on the theory of a
way by necessity, without a con-
siderable modification of that doc-
trine, and the view was asserted
that the right of access in such
case should be sustained as a
natural right. See editorial note
17 Harv. Law Rev. at p. 47. And
on the authority of this case it
was held that there was a natural
right to sink an artesian well
through the strata of coal. Penn-
sylvania Cent. Brew. Co. v. Le-
high Valley Coal Co.. 250 Pa. 300,
95 Atl. 47.
63. Willoughby v. Lawrence,
116 in, 11, 56 Am. Rep. 758, 4
N. E. 356; R. J. Gunning v. Cusack,
50 111. App. 290.
64. Bullard v. Harrison, 4
Maule & S. 387; Banks v. School
<^ 363]
Easements.
1301
arises in connection with a conveyance of land by one
who retains adjoining land, and consequently it is
necessary, in order to establish such a way, to show
that at some time in the past the land for the benefit of
which the way is claimed and that in which it is
claimed belonged to the same person.''^ Provided this
unity of o\^Tlership is shown to have existed, its remote-
ness either in point of time or by reason of intervening
conveyances appears to be immaterial.*^'^
Whether the previous ownership by the state or
federal government of both pieces of land, with a sub-
sequent grant or sale by it of one or both of them, is
sufficient to justify a finding of a way of necessity,
appears to b-e open to question. In one case^^ it was
Directors of Dist. No. 1 of Mc-
Lean County, 194 III. 247, 62 N.
E. 604; Whitehouse v. Cummings,
83 Me. 91, 23 Am. St. Rep. 756,
21 Atl. 743; Brice v. Randall, 7
Gill & J. (Md.)« 349; Nichols v.
Luce, 24 Pick. (Mass.) 102, 35
Am. Dec. 302; Roper Lumber Co.
V. Richmond Cedar Works, 158
N. Car. 161, 73 S. E. 902; Ellis
V. Blue Mountain Forest Ass'n, 6!)
N. H. 385, 42 L. R. A. 570. 41
Atl. 856; Carmon v. Dick, 170
N. C. 305, 87 S. E. 224; McKinnev
V. Duncan, 121 Tenn. 265, 118 S.
W. 683; Tracy v. Atherton. 35
Vt. 52, 82 Am. Dec. 621; Schu-
lenbarger v. Johnstone, 46 Wash.
202, 35 L. R. A. (N. S.) 941, 116
Pac. 843.
65. Thrump v. :M€Donnell, 120
Ala. 200, 24 So. 353; Stewart v.
Hartman, 46 Ind. 331; Ellis v.
Blue Mountain Forest Ass'n, 69
N. H. 385, 42 L. R. A. 570, 41
Atl. 856; Dudley v. Meggs, 54 Okla.
65, 153 Pac. 1122; McBurney v.
Glenmary Coal & Coke Co., 121
Tenn. 275, 118 S. W. 694 (semble) ;
Tracy v. Atherton, 35 Vt. 52, 82
Am. Dec. 621; Crotty v. New
River etc. Coal Co., 72 W. Va. 68,
78 S. E. 233.
66. See Taylor v. Warnaky, 55
Cal. 350; Logan v. Stogsdale, 123
Ind. 372, 8 L. R. A. 58, 24 N. E.
135; Conley v. Fairchild 142 Ky.
271, 134 S. W. 142; Feoffees of
Grammar School in Ipswich v.
Jeffrey's Neck Pasture, 174 Mass.
572, 55 N. E. 462; Crotty v. New
River & Pocahontas Consol. Coal
Co., 72 W. Va. 68, 78 S. E 233.
67. Herrin v. Siebern, 46 Mont.
226, 127 Pac. 323, vi^here it was
held that on a grant by the United
States of odd numbered sections
of land, there was implied res-
ervation of a way of necessity in
favor of the United States for
the benefit of private persons de-
siring to settle on the land re-
tair,?d, or to go thereon for propei'-
purposes, as to search for min-
erals or graze cattle.
1302 Eeal Property. [§ 363
held that a right of way of necessity was to he regarded
as reserved upon a grant hy the federal government, hut
there are two cases to the effect that the doctrine of
ways of necessity has no application in connection with
such a grant.^^ And it has also been decided that
such a right does not exist in favor of a grantee of
the state over land retained by the state.*^^ It is not
entirely clear why a conveyance by the government
should be subject to a different rule in this respect
from a conveyance by a private individual. The same
intention may well be imputed to it as to an individual,
not itself to hold or to vest in another land which
cannot be utilized for lack of a means of approach, and
the same considerations of public policy in favor of
the utilization of the land apply in both cases.
Since the grant or reservation of a way of neces-
sity is implied merely to accord with the presumed
intention of the parties, such an implication may be
excluded by particular language in the conveyance.'*'
So the fact that there was an express 'provision for
some particular mode of access has been regarded as
preventing the recognition of a way of necessity.'^ ^
And a like effect has been given to a reference in the
conveyance to adjoining land, which extended to the
highway, as belonging to the grantee, the grantee
claiming under such conveyance being precluded from
denying the correctness of such reference and con-
sequently from denying that he has this other means
of access to the highway.'^^ It might also be excluded,
it seems, by evidence of extrinsic facts."^ An intention
68. Bully Hill Copper Min. & 71. Georke Co. v. Wadsworth.
Smelting Co. v. Bruson, 4 Cal. 73 N. J. Eq. 448, 68 Atl. 71; Bas-
App. 180, 87 Pac. 237; United com v. Cannon, 158 Pa. 225, 27
States V. Rindge, 208 Fed. 611. Atl. 968.
69. Pearne v. Coal Creek M. & 72. Doten v. Bartlett, 107 Me.
M. Co., 90 Tenn. 619, 18 S. W. 351, 32 L. R. A. (N. S.) 1075, 78
402. Atl. 456.
70. Seely v. Bishop, 19 Conn. 73. See Mead v. Anderson, 40
128. Kan. 203, 19 Pac. 708; Seeley v.
§ 363] Easements. 1303
to grant or reserve such an easement, for instance, could
not well be presumed in ease there was an oral agree-
ment that no right of way should existJ* And so if
land is conveyed with an explicit understanding that it
is to be covered by a building, it could not well be con-
tended tliat the grantor had a right of way of necessity
throuah the building.
If, in a conveyance of land, a way is provided, it
has been said, which gives access for ordinary purposes
to the lot granted, no way of necessity will arise, al-
though that way is not sufficient for all purposes,^^ or,
to exjDress it more in accordance \\'ith principle, the
existence of a way for ordinary purposes is sufficient
to exclude any presumption of an intention that a way
for all purposes shall exist.
An easement of necessity, like any other easement,
cannot be imposed upon land not owned by the gran-
tor,"^^ or in which he has an undivided interest only."^
Since a way of necessity exists by reason of a con-
struction of the conveyance, based on the necessity of
such way to the user of the land conveyed or retained, it
is the necessity which exists at the time of the conveyance
which determines the existence of the way, and not a
necessity which may subsequently arise by reason of a
change of circurastances.'^^'^' A conveyance is to be
Bishop, 19 Conn. 128. wood v. West, 171 Ala. 463, 54
74. Lebus v. Boston, 21 Ky. So. 694.
Law Rep. 411, 47 L. R. A. 79, 92 77. Woodworth v. Raymond, 51
Am. St. Rep. 333, 51 S. W. 607. Conn. 70; Marshall v. Trumbull,
See Ewert v. Burtis (N. J. Ch.) 28 Conn. 183. But if the various
12 Atl. 893. owners of the land make deeds
75. Haskell v. Wright, 23 N. J. for the purpose of partition
Eq. 389. one who acquires a tract not
76. Consequently there is no otherwise accessible would have
grant of a right of way by neces- a way of necessity. Palmer v.
sity when the land granted and Palmer, 150 N. Y. 139, 55 Am. St.
that retained meet only at a Rep. 653, 44 N. E. 966.
mathematical point, that is, when 77a. Kentucky Distilleries &
merely a corner of one touches Warehouse Co. v. Warwick Co.,
a corner of the other. Green- 1C6 Ky. 651, 179 S. W. Oil; Cor-
1304 Eeal Property. [§ 363
construed with reference to the circumstances existing
at the time of its execution and not those subsequently
arising.
The grant of a way of necessity is implied in order
to enable one to utilize his own land and not to enable
him to utilize other land, and consequently one has no
such right over another's land merely because of his in-
ability otherwise to reach public land where he desires
to pasture his cattle.'^'^^
While the implication of a way of necessity is
almost invariably for the purpose of access to the
hind from the highway, occasionally a way of necessity
has been recognized, apparently without reference to
the question of its necessity for the purpose of access
from the highway, but merely to give access to other
land belonging to the same person, when he has
conveyed an intervening strip for a railroad right of
way.'^^
Upon a subsequent transfer of the dominant tene-
ment a way of necessity appurtenant thereto, like any
other easement, passes without any mention thereof.'^
And the burden passes upon the conveyance of the ser-
nell Andrews Smelting Co. v. conveyed a strip of land to a
Boston & P. R. Co., Corp., 202- railroad company for a right of
Mass. 585, 89 N. E. 118. Post, this way was, upon the Subsequent
section, notes 97-99. discovery of natural gas, re-
77b. Mcllquhain v. Anthony garded as entitled to a way by
Wilkinson Live Stock Co., 18 Wyo. necessity thereover for a pipe
53, 104 Pac. 20. line to conduct gas to his dwell-
78. Cleveland, etc., R. Co. v. ing. Uhl v. Ohio River R. Co.,
Smith, 177 Ind. 524, 97 N. E. 164; 47 W. Va. 59, 34 S. E. 934.
Pittsburgh, C. C. & St. L. Rwy. Co. 79. Taylor v. Warnaky, 55 Cal.
V. Kearns, 58 Ind. App. 694, 108 SbO; Conley v. Fairchild, 142 Ky.
N. E. 873; Vandalia R. Co. v. 271, 134 S. W. 142; Bean v.
Furnas, 182 Ind. 306, 106 N. E. Bean, 163 Mich. 379, 128 N. W.
401; New York, etc., R. Co. v. 413; Pleas v. Thomas, 75 Miss.
Railroad Commissioners, 162 495. 22 So. 820; Wcoldridge v.
Mass. 81, 38 N. E.-27. In one case Coughlin, 46 W\ Va. 345, 33 S. E.
the owner of land who had 223.
^ 363]
Easements.
1305
vient tenement except as against a purchaser for
value without notice.^"
Character of conveyance. A way of necessity
may arise r?pon a conveyance of land although at the
same time the grantor conveys away the balance of his
land to another,^^ and so it may arise upon a devise.^-
It may also arise by force of a lease.^^' It has been
regarded as arising on a conveyance by a trustee,^* and
also by an executor.^^
A way of necessity has been regarded as arising
not only when the severance of the ownership of the
two pieces of land occurs as a result of voluntary
transfer, but also when it occurs as a result of legal
proceedings,^*^ as when one piece is sold under a lien,^^
or under execution,^^ or is taken under condemnation
proceedings.'^^ And likewise when the severance of the
80. Logau V. Stogsdale, 123
Ind. 372, 8 L. R. A. 58, 24 N. E.
135; Jay v. Michael, 92 Md. 198;
Fairchild v. Stewart, 117 Iowa,
734, 89 N. W. 1075; Thomas v.
McCoy, 48 Ind. App. 403, 96 N.
E. 14; Higbee Fishing Club v.
Atlantic City Electric Co., 78 N.
J. Eq. 434, 79 Atl. 326.
81. Palmer v. Palmer, 150 N.
Y. 139, 55 Am. St. Rep. 653, 44 N.
E. 966; Mitchell v. Seipel, 53 Ind.
251.
82. Mclntire v. Lauchner, 108
Me. 443, 81 Atl. 784; Conover v.
Cade, 184 Ind. 604, 112 N. E. 7.
In Mancuso v. Riddlemoser, 117
Md. 53, 82 Atl. 1051, it was held
that when the control of a door
in the cellar of a building was
"strictly necessary" for purposes
of ventilation and the manage-
ment of the heating apparatus,
the right to control it would
be implied in favor of the owner
of the building as against one
to whom he had leased a part of
the building including the cellar
S3. Tutwiler Coal, Coke &-.
Iron Co. V. Tuvin, 158 Ala. 657.
48 So. 79; Powers v. Harlow, 53
Mich. 507, 51 Am. Rep. 154, 19 N.
W. 257.
84. Howton v. Frearson, 8
Term Rep. 50.
85. Collins v. Prentice, 15
Conn. 39, 38 Am. Dec. 61.
86. See Bean v. Bean, 163
Mich. 379, 128 N. W. 413.
87. San Joaquin Valley Bank
v. Dodge, 125 Cal. 77, 57 Pac.
687; Proudfoot v. Saffle, 62 W.
Va. 51, 12 L. R. A. (N. S.) 482,
57 S. E. 256.
88. Damron v. Damron, 119
Ky. 806, 84 S. W. 747.
89. Clcvchmd, C, C. & St. L.
R. Co. v. Smith, 177 Ind. 524, 97
N. E. 164.
1306
Real Peoperty.
[§ 36^
ownership occurs as a result of partition proceedings. ^"^
It has also been regarded as arising when land is set
off by appraisement under an execution, in such a way
that either the land retained by the debtor or that set
off is otherwise inaccessible.^^ In all these cases in
which a way of necessity is regarded as arising in favor
of one who acquires land by legal jDroceedings, the
''implied grant" of the way is, it seems, properly to
be regarded as based on a construction of the language
of the official conveyance, or of the decree, as intended
to include the right of way.
Degree of necessity. A way of necessity will
not ordinarily be recognized if there is another mode
of access to the land, though much less convenient, that
is, as has been sometimes said, a way of convenience
is not a way of necessity.^^ ^j^^j g^ ^^^ ^^^^ ^|-^^^ ^1^^
90. Blum V. Weston, 102 Cal.
362, 36 Pac. 778, 41 Am. St. Rep.
188; Mesmer v. Uharriet, 174 Cal.
110, 162 Pac. 104; Ritchey v.
Welsh, 149 Ind. 214, 48 N. E. 1031,
40 L. R. A. 105; Goodal v. God-
frey, 53 Vt. 219, 38 Am. Rep.
671.
91. Pernam v. Wead, 2 Mass.
203, 3 Am. Dec. 43; Taylor v.
Townsend, 8 Mass. 411, 5 Am.
Dec. 107; Russell v. Jackson, 2
Pick. (Mass.) 574; Schmidt v.
Quinn, 136 Mass. 575.
92. Dodd V. Burchell, 1 Hurl.
& C. 113; Corea v. Higuera, 153
Cal. 451, 17 L. R. A. (N. S.) 1019,
95 Pac. 882; Sterricker v. Mc-
Bride, 157 111. 70; Ward v. Robert-
son, 77 Iowa, 159, 41 N. W. 603;
Hall V. McLeod, 2 Mete. (Ky.)
98, 74 Am. Dec. 400; Whitehouse
V. Cummings, 83 Me. 91, 23 Am.
St. Rep. 756, 21 Atl. 743; Mitchell
V. Seipel, 53 Md. 251; Nichols v.
Luce, 24 Pick. (Mass.) 102; Dab-
ney v. Child, 95 Miss. 585, 48 So.
897; Field v. Mark, 125 Mo. 502.
28 S. W. 1004; Roper Lumber
Co. V. Richmond Cedar Works, 158
N. C. 161, 73 S. E. 902; Meredith
V. Frank, 56 Ohio St. 479, 47 N.
E. 656; Lankin v. Terwilliger, 22
Ore. 97, 29 Pac. 268; Valley Falls
Co. V. Dolan, 9 R. I. 489; Bailey
V. Gray, 53 S. C. 503, 31 S. E.
354; Alley v. Carleton, 29 Tex.
74; Dee v. King, 73 Vt. 375, 50
Atl. 1109; Malsch v. Waggoner,
62 Wash. 470, 114 Pac. 446 iseyn-
ble) ; Mcllquahain v. Anthony Wil-
kinson Live Stock Co., IS Wyo.
53, 104 Pac. 20.
As to whether the use of a
staircase on adjoining property
could, under the circumstances, be
regarded as necessary and not
merely convenient, see Galloway
V. Bonesteel, 65 Wis. 79, 56 Am.
Rep. 616, 26 N. W. 262; Stillwell
§ 363]
Easements.
130'
existing- wav is steep or narrow,^^ or can be made
available onlv bv the expenditure of money or labor,"''
has been held not to justify a finding of a way of
necessity. On the other hand there are decisions to
the effect that if the cost of the construction of a road
over one's own land, as a means of access to any
particular portion thereof, would involve very great
expeuse, out of proportion to the value of the land
itself, there is such a necessity for a way over another's
land as to justify the recognition of a way of necessity.^^
Whether the fact that the land is otherwise
accessible only by water is a justification for assuming
the existence of a way of necessity across the land is a
matter as to which the cases are not entirely clear."'^
V. Foster, 80 Me. 333, 14 Atl. 731;
Quimby v. Shaw, 71 N. H. 160, 51
Atl. 656.
93. Kripp V Curtis, 71 Cal. 62,
11 Pac. 879; Gaines v. Lunsford,
120 Ga. 370, 47 S. E. 967, 102 Am.
St. Rep. 109; Dudgeon v. Bron-
pon, 159 Ind. 562, 95 Am. St. Rep.
815; Turnbull v. Rivers, 3 Mc-
Cord (S. C.) 131, 15 Am. Dec. 622;
United States v. Rindge, 208 Fed.
611.
94. Carey v. Rae, 58 Cal. 159;
Gaines v. Lunsford, 120 Ga. 370,
102 Am. St. Rep. 109, 47 S. E.
967; Nichols v. Luce, 24 Pick.
(.Mass.) 102, 35 Am. Dec. 302;
Dee V. King, 73 Vt. 375, 50 Atl.
1109; Shaver v. Edgell, 48 W.
Va. 502, 37 S. E. 664; Fitchett v.
Mellow, 29 Ont. Rep. 6. See Mes-
mer v. Uharriet, 174 Cal. 110, 162
Pac. 104.
95. Smith V. Griffin, 14 Colo.
429, 23 Pac. 905; Watson v.
French, 112 Me. 371, L. R. A.
1915C, 355, 92 Atl. 290; Pettin-
gill V. Porter, 8 Allen (Mass.) 1,
85 Am. Dec. 671; Foeffees of
Grammar School in Ipswich v.
Proprietors of Jeffrey's Neck Pas-
ture, 174 Mass. 572; O'Rorke v.
Smith, 11 R. I. 259, 23 Am. Rep.
440; Crotty v. New River & Poca-
hontas Consol. Coal Co., 72 W.
Va. 68, 78 S. E. 230. See as to
the citerion of disproportionate
expense, U. S. v. Rindge, 208 Fed.
eii.
96. In Feoffees of Grammar
School in Ipswich v. Proprietors
of .Jeffrey's Neck Pasture, 174
Mass. 572, it was decided that a
way of necessity existed, although
there was access by water, if
the latter mode of access was
not available for general purposes
to meet the requirements of the
uses to which the property would
naturally he put. And in Jay v.
Michael, 92 Md. 198. it is assum-
ed that the fact of access by
water is immaterial. But in Kings-
ley V. Gouldsboroug'h Land Im-
provement Co., 86 Me. 280; Ilil-
dreth v. Googins, 91 Me. 227;
1308 Real Peopeety. [§ 363
Since the recognition of a way -of necessity is
based on the intention imputed to the parties at the
time of the severance of the ownership, it follows that
the existence of the privilege, and also its extent, is
to be determined with reference to what is necessary for
the use of the premises in the manner contemplated
by the parties at the time of such severance.^ '^ So if
the parties contemplate a use of the land for a par-
ticular business, there is a right of way of necessity
sufiScient for the purposes of the business, if no other
way sufficient for that purpose exists,^^ and if the
parties contemplate a use of the land for a residence,
there is a way of necessity sufficient for that purpose,
if no other way so sufficient exists.^** The fact that
a particular use of the land is being made at the time
of the severance of ownership does not of itself
show that the parties do not contemi:)late the possibility
of another use of the land, and hence does not pre-
clude the recognition of a way of necessity, upon a sub-
sequent change of use, in accord with the requirements
of the latter rather than of the former use.^ And
the view has been taken that the parties are to be pre-
sumed, in the absence of any evidence on the subject,
to have in mind any lawful use of the land.^
Lawton V. Rivers, 2 McCord (S. Riggs, L R. 13 Ch. D. 798. See
C.) 445; Turnbull v. Rivers, 3 Mc- Mitchell v. Seipel, 53 Md. 251.
Cord (S. C.) 131; Fitchett v. 98. Gaylord y. Mtoffat, L. R. 4
Mellow, 29 OM. Rep. 6,— it was Ch. App. 133.
decided that no such right of way 99. Camp v. Whitman, 51 N.
existed, when there was access J. Eq. 467 26 Atl. 917.
by water, it being left, in the i. in Myers v. Dunn, 49 Conn,
second of the cases cited, to the 71 it was decided that although
jury to say whether the access thre was an express grant of a
by water was "available". See right of way for carting wood
also Staples v. Cornwall 114 App. from the land, a residence hav-
Div. 596, 99 N Y Supp. 1009. ing subsequently been erected
97. Wlhittier v. Winkley, 62 N. thereon, there was a way of ne-
H. 338; Camp v. Whitman, 51 cessity thereto for general i>ur-
N. J. Eq. 467, 26 Atl. 917, discuss- poses,
ing Corporation of London v. 2. Whittier v. Winkley, 62 N.
§ 364] Easements. 1309
The grantor or grantee of land obvionsly cannot,
by the subsequent erection of obstacles to access to the
land, create a necessity for this purpose which did not
exist at the time of the severance of ownership,^ nor
can he create such a necessity by such subdivision of
his property as he may subsequently make on the
sale thereof.^^
That the grantee of land, being a municipality or
subdivision of a state, has the right to obtain land for
a road b}^ condemnation proceedings does not pre-
clude it from claiming a way of necessity.^*^
§ 364. Prescription. An easement may be acquired
by the adverse user of another's land for a certain
period, usually the same as that required to give title
to land itself by disseisin or adverse possession. The
acquisition of an easement in this manner is termed
''prescription," and is based on tlie theory that if one
makes use of another's land, not by permission, and
the owner fails to interfere to prevent such use, such
acquiescence is, in order to prevent litigation, and also
to obviate the difficulty of yiroving title after lapse of
time, to be considered as conclusive evidence that the
user is rightful. The subject of prescription will l)e
considered in another part of this work.*
H. 338, disapproving Gorpoiation of access was available for gen-
of London v. Riggs, 13 Ch. Div. eral purposes to meet the requiro-
798; Grotty v. New River & Poca- ments of the uses to which the
hontas Consol. Coal Co.. 72 W. plaintiff's property would natural-
Va. 68, 78 S. E. 233. Compare ly be put.
Higbee Fishing Club v. Atlantic 3. Mitchell v. Seipel, 53 Md.
Electric Co., 78 N. J. Eq. 434, 71) 251.
Atl. 326. 3a. Lankin v. Terwilliger, 22
In Foeffees of Grammar School Ore. 97, 29 Pac. 268; U. S. v.
in Ipswich v. Proprietors of Jef- Rindge, 208 Fed. 611.
frey's Neck Pasture, 174 Mass. 3b. Board of Sup'rs of Lamar
572, it was said that the exist- County v. Elliott, 107 Miss. 368.
ence of a way of necessity was f!6 So. 203.
to be determined by the consid- 4. Post, §§-514-533.
eration whether any other mode
2 R. P.— 8
1310 Real Pkoperty. [§ 365
§ 365. Acquisition under statute. An easement
may, by force of a particnlar statute, be acquired in
the land of anotlier for a public use, by proceedings
under the power of eminent domain, and payment of
adequate compensation. The most prominent instances
of easements so acquired are the right of way privilege
acquired by a railroad company through the land of an
individual,^ and the privilege of the owner of land on a
watercourse, under what are known as the ''Mill Acts,"
of flooding the land of another by the erection of a dam
for manufacturing or milling purposes.® In some states
the statute provides for the acquisition, by a company
formed for irrigation purposes, of the privilege of
constructing canals, aqueducts, or reservoirs on the
land of individuals,'^ and a somewhat similar pri\dlege
is frequentlj^ given by statute to local associations
formed to construct canals and ditches for the drainage
and reclamation of marshy districts.^ Another instance
of an easement created by statute is the obligation, im-
posed by statute in some states, to contribute to the
erection and maintenance of a partition fence.*^'^*^
As to party walls. In the absence of a statu-
tory provision in this regard, or of the grant of an
5. 1 Lewis, Eminent Domain, it is decided that a landowner's
§§ 263, 449, 584; 3 Elliott, Rail- right to have cattleguards main-
roads, § 950 ct scq. tained by a railway company is
6. Gould, Waters, §§ 253, 579 a "statutory easement," and that
et seq.; anfe § 339e. consequently a release thereof by.
7. 1 Lewis, Eminent Domain, him is binding on his successor
§ 308; Fallbrook Irrigation Dist. in title. Such a view would prob-
V. Bradley, 164 U. S. 112; Oury ably not be accepted by all
V. Goodwin (Ariz.) 26 Pac. 376; courts.
In re Madera Irrigation Dist., 92 8. Lindsay Irrigation Co. v.
Cal. 309, 27 Am. St. Rep. 106; Mehrtens, 97 Cal. 676; NefE v.
Paxton & H. Irrigating Canal & Reed, 98 Ind. 341; Norfleet v.
Land Co. v. Farmers & Merchants Cromwell, 70 N. C. 634, 16 Am.
Irrigation & Land Co., 45 Neb. 884, Rep. 787; Tidewater Co. v. Coster,
50 Am. St. Rep. 585. 18 N. J. Eq. 518.
In Gulf & S. I. R. Co. V. Chap- 9-10. See ante, § 357.
man, 102 Miss. 778, 59 So. 889,
§ 3G5] Easements. 1311
easement to tliat effect, one of two adjoining owners
cannot place a wall wholly or in part on the other's
land. In several states, however, there are statutes in
this regard, usually to the effect that one owner may
place a wall to a certain extent upon the adjoining
owner's land, which wall the other will have the right
to use upon payment of half the cost.^^
A wall is not such as is contemplated by the
statute, it has been decided, unless it is susceptible of
user as a party wall,^- and it has on this theory been
decided that the wall cannot have openings, such as
windows, therein. ^^ That is, though the wall belongs,
when built, to the projorietor who builds it, until the
other pays his proportion of the costs, ^^ he has no right,
under the statute, to build in part on the other's land
any but a solid wall.
A wall erected by one proprietor has been regarded
as a party wall for the purpose of the statute, so as
to give the adjoining owner certain rights therein, if its
foundation is jDartly on the latter 's land, even though
11. A statute providing that C. 480; Robinson v. Hillman, 36
one may erect a wall in part up- App. D. C. 576.
on the land of an adjoining 13. Smoot v. Heyl, 34 App. D.
owner, to be used by both as a C. 480; Kiefer v. Dickson, 41 Ind.
party wall, has been held to be App. 543, 84 N. E. 523; Traute
unconstitutional in Massachusetts. v. White, 46 N. J. Eq. 437, 19
Wilkins v. Jewett, 139 Mass. 29. Atl. 196; Sullivan v. Graffort, 35
And there are dictia to that ef- Iowa, 531; Vollmer's Appeal, 61
feet in New Jersey. Traute v. Pa. 118. Contra, Jeannin v. De
White, 46 N. J. Eq. 437, 19 Atl. Blance, 11 La. Ana. 465; Pierce v.
196; Schmidt v. Lewis, 63 N. J. Lemon, 2 Houst. (Del.) 519.
Eq. 565, 52 Atl. 707. That such a The Iowa statute authorizes
statute is valid, see Swift v. Cal- openings to be made upon taking
nan, 102 Iowa, 206, 37 L. R. A. measures to protect the other
462, 63 Am St. Rep. 443, 71 N. W. proprietor. See Shoemaker v.
233; Evans v. Jayne, 23 Pa. 34; Wallace, 154 Iowa, 236, 134 N.
Heron v. Houston, 217 Pa. 1, 118 W. 740.
Am. St. Rep. 898, 66 Atl. 108; 14. Jeannin v. De Blance, 11
Hunt V. Ambuston, 17 N. J. Eq. La. Ann. 465; Cordill v. Israel,
208. 130 La. 138, 57 So. 778; Bertram
12. Smoot V. Heyl, 34 App. D. v. Curtis, 31 Iowa, 46.
1312 Real Peoperty. [§ 365
the part of the wall above the ground is wholly within
the limits of the land belonging to the builder.^ ^ When,
however, the wall was not intended to encroach upon
the other's land, but did so by accident and to but
a slight extent, and there was nothing to indicate that
it was intended to be used as a party wall, such other
was considered to have no rights therein, though he
could insist that the encroaching part should be re-
moved.''' Even a wall erected entirely on one's ovni
land may, it appears, under the Pennsylvania statute,
be a party wall for the purposes of the adjoining owner
if it was so intended by the one erecting it.^"
The privilege, under the statute, of erecting a wall
partly on the adjoining land for the use of both pro-
prietors has been held to override the privilege of the
adjoining owner of erecting a wall on his own land for
his exclusive use, and a wall of the latter character may
be destroyed if this is necessary for the purpose of
erecting a wall of the former character.^^
There has been held to be a user by one pro-
prietor of a wall erected by the other, so as to make the
former liable under the statute for part of the cost,
when he utilized the wall as one side of a permanent
frame building erected by him, though he did not use
the wall for purposes of support, ^'^ while the erection
of a merely temporary shed against the wall was held
15. Lukens v. Lasher, 202 Pa. University of Pennsylvania, 220
327, 51 Atl. 887; Banner v. Cas- Pa. 328, 89 Atl. 861.
satt, 236 Pa. 248, 84 Atl. 780. It 18. Western National Bank's
is immaterial that the wall is Appeal, 102 Pa. 171; Mercantile
on the adjoining land to the ex- Library Co. v. University of Penn-
tent of less than one half its sylvania, 220 Pa. 328, 89 Atl. 861;
thickness. Western National Heron v. Houston, 217 Pa. 1, IIS
Bank's Appeal, 102 Pa. 171; Kos- Am. St. Rep. 898.
ack v. Johnson, 38 App. D. C. 19. Deere, Wells & Co. v. Weir-
62. Shugart Co., 91 Iowa, 422, 59 N.
16. Pile V. Pedrick, 167 Pa. 296, W. 255 ; Pier v. Salot (Iowa) 107
46 Am. St. Rep. 677, 31 Atl. 646. N. W. 420.
17. Mercantile Library Co. .v
§ 366]
Easements.
1313
not to be such a user.-^ The erection of an inferior
wall by the side of the other wall has also been de-
cided not to involve a user of the latter.-^
§ 366. Estoppel. (a) By reference to non ex-
istent way. If one, in conveying land, describes it as
bounded on a street (or other highway) which is in
fact nonexistent, he is, as against his grantee, it is said,
estopped to deny the existence of such street, the
result being that he in effect grants, in so far as he
owns the land covered by the supposed street, a right of
way along the route thereof for the purpose of access
to the land conveyed,-^ and also easements of light and
air such as the grantee would have had were the street
actually existent.^^ Likewise if land conveved is de-
20. Beggs V. Duling, 102 Iowa,
13. 70 N. W. 732. As to what
constitutes a new use of a new
wall erected in place of an old
one, so as to impose liability
under the statute, see Hoffstott
V. Voigt, 146 Pa. 632, 23 Atl. 351;
German Nat. Bank v. Mellor, 238
Pa. 415, 86 Atl. 415.
21. Sheldon Bank v. Royce, 84
Iowa, 288, 50 N. W. 986.
22. Teasley v. Stanton, 136
Ala. 641, 96 Am. St. Rep. 88, 33
So. 823; Rogers v. Ballinger, 59
Ark. 12, 26 S. W. 12; Petitpierre
V. Maguire, 155 Cal. 242, 100 Pac.
690; Billings v. Mckenzie, 87
Conn. 617, 89 Atl. 344; Poole v.
Greer, 6 Del. 220, 65 Atl. 767;
Schreck v. Blum, 131 Ga. 489, 62
S. E. 705; Young v. Braman, 105
Me. 494, 75 Atl. 120; O'Linda v.
Lathrop, 21 Pick. (Mass.) 292;
Driscoll V. Smith, 184 Mass. 221,
68 N. E. 210; Dawson v. St. Paul
F. & M. Ins. Co., 15 Minn. 136, 2
Am. Rep. 109; Plumer v. John-
ston, 63 Mich. 65, 29 N. W. 687;
Crosby v. Greenville, — Mich. — ,
150 N. W. 246; Moses v. St. Louis
Sectional Dock Co., 84 Mo. 242;
Lindsay v. Jones, 21 Nev. 72;
White V. Tidewater Oil Co., 50 N.
J. Eq. 1; Imperial Realty Co. v.
West Jersey & S. . R. Co., 78 N.
J. Eq. 110, 77 Atl. 1041; United
N. J. Railway & Canal Co. v. Cru-
cible Steel Co., 86 N. J. Eq. 258,
98 Atl. 1087, affirming 85 N. J.
Eq. 7, 95 Atl. 243; White's Bank
V. Nichols, 64 N. Y. 65; Niagara
Falls V. New York Cent. & H. R.
R. Co., 168 N. Y. 610, 61 N. E.
185; Weeks v. New York W. & B.
Ry. Co., 207 N. Y. 190, 100 N. E.
719; Ott V. Kreiter, 110 Pa. St.
370, 1 Atl. 724; Shelter v. Welzel,
242 Pa. 355, 89 Atl. 455; Gish v.
Roanoke, 119 Va. 519, 89 S. E.
970; Espley v. Wilkes, L. R. 7
Exch. 298.
23. Trowbridge v. Ehrich, 191
1314
Eeal Property.
[§ 366
scribed as bounded, not by a street or other highway,
but by a j^rivate alley or passageway, the grantor is said
to be estopped, as against the grantee, to deny that
such an alley or passageway exists, that is, he grants to
that extent a right of way appurtenant to the land
conveyed.-^ And it has been decided that if the con-
veyance bounds the land on a way which is actually
laid out, the grantee acquires a right of passage for
the whole length of such way, so far as it is upon the
grantor's land, and not merely for the length of the
boundary of the land conveyed.-^
While a reference to a non existing street or way
as a boundary has thus ordinarily been regarded as
involving the grant of a right of way, a different view
N. Y. 361, 84 N. E. 297; Dill v.
Board of Education of City of
Camden, 47 N. J. Eq. 421, 10 L.
R. A. 276, 20 Atl. 739; Fitzgerald
V. Barbour, 55 Fed. 440, 5 C. C.
A. 180.
24. Garstang v. Davenport, 90
Iowa, 359, 57 N. W. 876; Riley v.
Stein, 50 Kan. 591, 32 Pac. 947;
Reccus V. Weber, 142 Ky. 157, 134
S. W. 145; Young v. Braman, 105
Me. 494, 75 Atl. 120; Fox v.
Union Sugar Refinery, 109 Mass.
292; McKenzie v. Gleason, 184
Mass. 452, 100 Am. St. Rep.
566, 69 N. E. 1076; Gould v.
Wagner, 196 Mass. 276, 82 N.
E. 10; Flagg v. Phillips, 201
Mass. 216, 87 N. B. 598; Carlin
V. Paul, 11 Mo. 32, 47 Am. Dec.
139; Cox V. James, 45 N. Y. 557;
Hennessy v. Murdoch, 137 N. Y.
317, 33 N. B. 330; Rhoads v.
Walter, 61 Pa. Super. Ct. 43. But
see Milliken v. Denny, 135 N. C.
19, 47 S. E. 132.
The fact that land is bounded
by a privatQ passageway does
not, it has been decided, give
any rights of light and air as
regards the space occupied by
such way, except in so far as
required for the purposes of pas-
sage. Bitello V. Lipson, 80 Conn.
497, 16 L. R. A. (N. S.) 193, 125
Am. St. Rep. 126, 69 Atl. 21. And
a description of the land con-
veyed as bounded on an "open
court" was held to give no ease-
ments of light and air which
would prevent the erection of a
building on the court. Lipsky v.
Heller, 199 Mass. 310, 85 N. B.
453.
25. Thomas v. Poole, 7 Gray.
(Mass.) 83; Rodgers v. Parker,
9 Gray (Mass.) 445; Ralph v.
Clifford, 224 Mass. 58, 112 N. E.
482; Tobey v. Taunton, 119 Mass.
404; McConnell v. Rathbun, 46
Mich. 303, 9 N. W. 426; Schreck
v. Blun, 131 Ga. 489, 62 S. E.
705. Compare Langmaid v. Hig-
gins, 129 Mass. 353.
§ 366] Easements. 1315
has been adopted when the land was in terms bounded
on the side line of the street or way,-*^ when the street
or way was referred to merely for the purpose of loca-
ting the starting point of the description, and the land
was described by courses and distances, although one of
the courses happened to correspond with the side line of
such street or way,-' and when the land was bounded
on a "continuation" of a supposed street.^*^ And gen-
eralh^ the particular language used, or the circumstances
of the case, may be referred to for the purpose of show-
ing that there was no intention, in bounding the land
on a non-existent street or way, to give any easement
in the land retained.-^
One thus acquiring an easement by a grant to liim
of land as bounded by a street which is nonexistent
has the right to have the supposed street kept open
to its full width, as indicated on a plat referred to or
otherwise.^''
In so far as one who has conveyed land as bounded
on a street or way which is in fact nonexistent is pre-
26. McKenzie v. Gleason, 184 58 N. Y. Supp. 163; Neely v.
Mass. 452, 100 Am. St. Rep. 566, Philadelphia, 212 Pa. 551, 61 Atl.
69 N. E. 1076. 1096.
27. Lankiu v. Terwilliger, 22 30. Fitzgerald v. Barbour, 55
Ore. 97, 29 Pac. 268; Talbert v. Fed. 440, 5 C. C. A. 180; White
Mason, 136 Iowa, 373, 113 N. W. v. Tidewater Oil Co., 50 N. J.
918 {dictum); Pierpoint v. Har- Eq. 1, 25 Atl. 199; Livingston v.
risville, 9 W. Va. 215 {semhle). New York, 8 Wend. (N. Y.) 85, 22
And see Neely v. Philadelphia. Am. Dec. 622.
212 Pa. 551, 61 Atl. 1096. That a conveyance of land
28. Atwood V. O'Brien, 80 Me. bounds it on a non existent street
447, 15 Atl. 44. But see Teasley does not impose any obligation
V. Stanton, 136 Ala. 641, 96 Am. on the grantor to make a streei
St. Rep. 88, 33 So. 823. or way accordingly, which will
29. Pitts V. Baltimore, 73 Md. be fit for travel. Loring v.
326, 21 Atl. 52; Bushman v. Gib- Otis, 7 Gray (Mass.) 563; Hen-
son, 15 Neb. 676, 20 N. W. 106, nessey v. Old Colony & N. R. Co.,
289; Hopkinson v. McKnight, 31 101 Mass. 540, 100 Am. Dec. 127;
N. J. Law 422; King v. New Durkin v. Cobleigh, 156 Mass. 108,
York, 102 N. Y. 171. 6 N. E. 395; 17 L. R. A. 270, 32 Am. St. Rep.
Re Brook Ave., 40 App. Div. 519. 436, 30 N. E. 474.
1316
Eeal Property.
[§ 366
chicled from denying the existence of an easement in
favor of his grantee on the land retained by him,
one to whom he subsequently conveys the latter land is
also so precluded,^^ but not one claiming under title
paramount, as for instance at a sale under a prior
mortgage.^^
One can obviously not create an easement by de-
scribing the land conveyed as bounded by a street or
wa}', if he does not own the land on w^hicli the street or
way is supposed to be located, that is, he cannot thus
create a right of way over another's land.^^ And it has
been decided that such a reference to a nonexistent
street or way does not, merely because it cannot operate
as creating a way, take effect as a covenant as to the
existence of the street or way, for breach of which dam-
ages may be claimed.^* The statement not infrequently
found in the cases,^^^ that the reference to a street in-
volves an ''implied covenant" on the part of the gran-
tor that there is such a street, appears ordinarily to
31. Fitzgerald v. Barbour, 55
Fed. 440, 5 C. C. A. 180; Thomas
V. Poole, 7 Gray (Mass.) 83;
Rogers v. Ballinger, 59 Ark. 12,
26 S. W. 12; Cox v. James, 45
N. Y. 557; Sbetter v. Welzel, 242
Pa. 355, 89 Atl. 455. Contra Briz-
zalaro v. Senour, 82 Ky. 353.
32. See Tuttle v. Sowadzki, 41
Utah, 501, 126 Pac. 959.
That a subsequent grantee ot
part of the land, away from the
asserted street, cannot assert the
existence of the way, see Dawson
V. S. Paul Fire & Marine Insur.
Co., 15 Minn. 136, 2 Am. Rep.
139.
33. Dorman v. Bates Manuf'g
Co., 82 Me. 438, 19 Atl. 915; Cole
\. Hadley, 162 Mass. 579, 39 N.
E. 279.
34. Wimpey v. Smart, 137 Ga.
325, 73 S. E. 586; Howe v. Alger,
4 Allen (Mass.) 206; Fulmar v.
Bates, 118 Tenn. 731, 10 L. R. A.
(N. S.) 964, 121 Am. St. Rep. 1059,
102 S. W. 900. Contra, Trutt v.
Spott, 87 Pa., 339;. Talbert v.
Mason, 136 Iowa. 373, 14 L. R.
A. (N. S.) 878, 113 N. W. 918
(semble).
34a. See e. g. Rogers v. Bel-
linger, 59 Ark. 12, 26 S. W. 12;
Haynes v. Thomas, 7 Ind. 38.
White V. Flannigan, 1 Md. 525,
54 Am. Dec. 668; Tufts v. Charles-
town, 2 Gray (Mass.) 272; Mosi?s
V. St. Louis Sectional Dock Co.,
84 Mo. 242: Greenwood v. Wilton
R. R., 23 N. H. 261; Bellinger v.
Union Burial Ground Soc, 10 Pa.
135.
^ 366] Easements. 1317
mean merely that he is precluded from denying the
existence of the street.
There are quite occasional decisions and dicta to
the effect that if one conveys land as abutting on a
legally existent highway, the fee of "hieh he owns, and
the highway is subsequently discontinued, the grantee
still has a right of passage where the highway previously
existed, which cannot be obstructed by the grantor or
one claiming under him.-'^ This view involves the as-
sumption that the description in a conveyance of land
as abutting on a highway has the effect of creating a
private right of way, irrespective of whether the high-
way does or does not exist.
While the courts, as above stated, in deciding that
the grantee of land may acquire an easement in the
grantor's adjoining land by reason of the fact that the
conveyance bounds the land on a nonexistent street or
way, base this in terms on the ground of estoppel, they
give practically no satisfaction as reg^ards the character
and theoretical basis of the estoppel. If they regard
it as a case of estoppel by deed, that is, if they mean
that the grantor having, in a formal conveyance, referred
to a street as existing on his land in a particular lo-
cation, he is estopped to deny that it does so exist,"'"
the fact that the grantee knows that the street does not
exist would presumably be immaterial, as would the
fact that the conveyance is by way of gift."'^ The courts,
35. Bayard v. Hargrove, 45 Ga. County, 36 Utah, 127, 104 Pac.
342; Leffler v. Burlington., 18 "Wlash. 691, 1^. R. A. 1917A, 1120,
Iowa, 361. Parker v. Farminghani, 159 Pac. 891; Central Trust Co.
1047; Dobson v. Hohenadel, v. Ifennen, 90 Fed. 593, 33 C. C.
148 Pa. St. 367, 23 Atl. 1128. A. 189. Rut see Kimball v. Ken-
Shetter v. Welzel, 242 Pa St. 355, osha, 4 Wis. 321.
111. Van Buren v. Trumbull, 92 36. It is reforrei to as a case
8 Mete. (Mass.) 260; Plumer v. of estoppel by deed in Billings v.
Johnston, 63 Mich. 165, 29 N. W. McKenzie, 87 Conn. 617, 89 Atl.
687; White's Bank v. Nichols, 64 344; Shetter v. Welzel, 242 Pa.
N. Y. 65; Holloway v. Southmayd, 355, 89 Atl. 455; Bigelow, Estnp-
139 N. Y. 390, 34 N. E. pel (6th Ed.) 403.
89 Atl. 455; Sowadski v. Salt Lake 37. That the fact that the con-
1318 Real Peopertt. [§ 366
however, occasionally refer to the probability that the
supposed existence of the street constituted part of
the consideration which induced the purchase, and from
this point of view the estoppel is not by deed, but is by
representation, and the fact that the purchaser was
aware of the facts and was consequently not misled, or
that the conveyance was by way of gift, would pre-
vent the estoppel taking eifect.-^^
If the grantee's acquisition of the easement is by
reason merely of the fact that the conveyance purported
to bound the land by a street, without reference to
whether the grantee was induced to suppose that a
street actually exists, the rule might as well be stated,
it seems, without reference to the doctrine of estoppel.
So considered, the rule appears to be merely one of
construction, that a conveyance of land as bounding on
a nonexistent street is presumed, if no such street
exists, to be intended to vest in the grantee, as appurte-
nant to such land, easements of passage and of light and
air, similar to those which he would have acquired had
the street actually existed.^^* If on the other hand the
purchaser's acquisition of the easement is by reason of
his having been induced to believe that a street exists,
without reference to whether the grantor intended to
create such an easement in his favor, the rule is, it
seems, properly expressed in terms of estoppel, and the
language of the conveyance in reference to the street
would appear to be material only as raising a presump-
tion that similar language was used by the vendor in the
negotiations which preceded the conveyance. So far
as estoppel by representation is concerned, the fact
veyance is by way of gift is im- material in Kenyou v. Hookway,
m.atenal see Flersheim v. City of 17 N. Y. Misc. 452, 41 N. Y. Supp.
Baltimore, 85 Md. 489, 36 Atl. 230. A contrary view is taken iu
1098. Bushman v. Gibson, 15 Neb. 676,
38. That the grantor had pre- 20 N. W. 106, 289.
viously told the grantee that he 38a. Post, this section, note
did not intend to give him such 54a.
an easement was regarded as im-
§ 366] Easements. 1319
that the conveyance bounds the land by a street is
immaterial if the purchaser has been expressly told, or
has reason to believe, that no such street exists. The
same considerations apply in the case of a reference to
a private passage way as a boundary. If the language
of the instrument operates to create an easement in the
grantee, irrespective of whether the grantee was induced
to believe in the existence of the passage way, the
easement is created by the lang-uage of the conveyance,
and the introduction of the doctrine of estoppel is un-
necessary, while if the instrument creates an easement
in the grantee merely because it indieatos that the
grantee was induced to purchased in the belief that the
passage way existed, the easement is properly said to
be created by estoppel.
(b) By reference to plat. It is frequently
stated that if one sells land, or conveys it, with refer-
ence to a plat, on .which plat appear streets, squares,
quays, or the like, the plat is in effect made a part of
the transaction of sale or conveyance, with the result
that the vendee or grantee acquires a right to insist
that, in so far as the property belongs to the vendor
or grantor, the parts designated on the plat as streets,
squares, quays or the like, shall continue to be de-
voted to such public use free from interference by tli(>
grantor or one claiming under him.^^ The cases ordi-
39. Danielson v. Sykes, 157 Cal 311, 37 N. E. 850; Fisher v. Beard,
689, 109 Pac. 87, 28 L. R. A. 32 Iowa, 346; Cleaver v. Man-
(N. S.) 1024; Pierce v. Roberts, hanke, 120 I-owa, 77, 94 N. W.
57 Conn. 31, 17 Atl. 275; Fisk v. 279; Rowan's Excrs. v. Portland,
Ley, 76 Conn. 295, 56 Atl. 559; 8 B. Mon. (47 Ky.) 232; Mem-
East Atlanta Land Co. v. Mower, phis & St. L. Packet Co. v. Grey,
138 Ga. 380, 75 S. E. 418; May- 9 Bush (72 Ky.) 13; Bartlett v.
wood Co. V. Village of Maywood, City of Bangor, 67 Me. 460; Burn-
118 111. 61, 6 N. E. 866; Swedish ham v. Mahoney, 222 Mass. 524,
Evangelist Lutheran Church v. Ill N. E. 396. Ilorton v. Williams,
Jackson, 229 111. 506, 82 N. E. 99 Mich. 423; Lennig v. Ocean City
348; Field v. Barling, 149 111. 556, Ass'n 41 N. J. Eq. 606. 56 Am.
24 L. R. A. 406, 41 Am. St. Rep. Rep. 16, 7 All. 491; Dill v. Board
1320 Keal Pkoperty. [§ 366
narily refer to this as arising from a sale according to a
plat rather than from a conveyance according to a plat,
but when the sale is according to a plat the conveyance
by which the sale is consummated is usually according
to the same plat, and it may be questioned whether, when
the courts refer to a sale according to a plat, they do
not usually have in mind such a sale followed by a simi-
lar conveyance. As is subsequently indicated,^° whether
a sale according to a plat, that is, a reference to a plat
in connection with the negotiations for a sale, will have
the same effect in this regard as such a reference in-
corporated in the instrument of conveyance of the land,
has been questioned.
In some cases,"* ^ in giving this effect to a conveyance
according to a plat, language is used by the court indi-
cative of the view that this result is attained by an ap-
plication of the same principle which operates to pre-
clude one who conveys land as bounded on a street or
way from denying the existence of the street or way, and
that the cases are exceedingly analogous appears not to
be open to question. In some cases the view is asserted
that the reference to the plat operates to vest an ease-
ment in the grantee as inducing him to believe that the
streets or other public places exist as indicated on the
plat,^2 thus in etfect applying the doctrine of estoppel
of Education of City of Camden, (bridge). Wilson v. Acree, 97
47 N. J. Eq. 421, 10 L. R. A. 276, Tenn. 378, 37 S. W. 90; Tuttle
20 Atl. 739. Bissell v. Railroad v. Sowadzki, 41 Utah, 501, 126
Co., 23 N. Y. 61; Hennessy v. Pac. 959.
Mnrdock, 137 N. Y. 317, 40. /Vs/, § 366(c), note 54.
33 N. E. 330; Buffalo L. 41. See Booraem v. North Hud-
& R. Co., V. Hoyer, 214 N. Y. son R. Co., 40 X J. Eq. 557, 5
236, 108 N. E. 455; Chapin v. Atl. 106. Dodge v. Pennsylvania
Brown, 15 R. I. 579, 10 Atl. 639; R. Co., 43 N. J. Eq. 351, 45 N. J.
Chambersburg Shoe Mfg. Co. v. Eq. 366; Wyman v. New York, 11
Cumberland Valley R. Co., 240 Pa. Wend. (N. Y.) 486; Bissell v.
519, 87 Atl. 968; Oney v. West N. Y. Cent. R. Co., 23 N. Y. 61;
Buena Vista Land Co., 104 Va. McCall v. Davis, 15 R. I. 579.
580, 2 L. R. A. (N. S.) 832. 113 42. Presoott v. Edwards, 117
Am. St. Rep. 1066, 52 S. E. 343 Cal 298, 59 Am. St. Rep. 186; May-
§ 366] Easements. 1321
by representation. Frequently the courts refer in this
connection to the fact that, as appears to be agreed in
this country,^^ a sale of lots with reference to a plat
involves a dedication to public use by the vendor of
those parts indicated on the plat as intended to be so
used,'** apparently regarding this as the basis for recog-
nizing a right of way in the vendee. But this, it is con-
ceived, involves a misapplication of the doctrine of
dedication. The existence of a right of way in the
vendee by reason of a sale to him by reference to a plat
is entirely independent of whether any right exists in
the public.*^ For instance, although the public authori-
ties refuse to accept the dedication, or vacate a street
appearing on a plat, so that the dedication of the street
is practically a nullity, nevertheless the vendee's rights
remain the same as if the authorities had not taken such
action. That the right of the A^endee or grantee in
such case is not dependent on the doctrine of dedication
is apparent upon consideration of the analogous case of
a private right of way appearing on the plat with ref-
erence to which the sale or conveyance is made. The
doctrine of dedication is absolutely inapplicable in
connection with a private way, and yet the vendee or
wood Co. V. Village of May wood, 110 Mo. 618, 19 S. W. 735; Hawley
118 111. 61, 186, 49 Pac. 178; Clark v. Baltimore, 33 Md. 270; Carter
V. Elizabeth, 40 N. .J. L. 172; Mc- v. Portland, 4 Ore. 339; Dobson v.
Farland v. Linderkugel, 107 Wis. Hohenaiel, 148 Pa. 367, 23 Atl.
474, 83 i\. W. 757. McCall v. Davis, 1128.
15 R. I. 579; Van Buren v. Trum- 45. See Prescott v. PJd wards,
bull, 92 Wash. 691, L. R. A. 1917 A, 117 Cal. 298, 59 Am. St. Rep. 186;
1120, 159 Pac. 891. 49 Pac. 178; Danielson v. Sykes,
43. Post, § 482. 157 Cal. 686, 109 Pac. 87, 28 L.
44. Highland Realty Co. v. R- A. (N. S.) 1024; Overland
Avondale Land Co., 174 Ala. 325, Machinery Co. v. Alpenfels, 30
56 So. 716; Harrison v. Augusta, Colo. 163, 69 Pac. 574; White v.
Factory, 73 Ga. 447; I^gansport Tidewater Can.il Co., 50 N. J. Eq.
V. Dunn, 8 Ind. 38; Schneider v. 1, 25 Atl. 199; Lennig v. Ocean
Jacob, 86 Ky. 101, 5 S. W. 350; City Ass'n, 41 N. J. Eq. 606, .'it;
Morton v. Williams, 99 Mich. 423, Am. Rep. 16, 7 Atl. 491; Carroll
58 N. W. 369. Heitz v. St. Louis, v. Asbury, 28 Pa. Super. Ct. 354;
1322
Eeal Peoperty.
[§ 36G
grantee in such case ordinarily acquires a right of
way.^^
The authorities are not entirely harmonious as to
whether one receiving a conveyance of land described
with reference to a plat acquires a right of way over,
or rather, corresponding to, every street which, though
nonexistent, appears upon the plat. Some cases are
to the effect that, while the grantee is not restricted to
such supposed streets as are actually adjacent to his
land, he acquires rights only in such as are reasonably
necessary for convenient access to and exit from the
land conveyed, and that the grantor is not, as against
him, estopped to deny the actual existence of streets ap-
pearing on the plat which he would not ordinarily have
occasion to use for such purpose,'*'^ while some recognize
rights in the grantee along the routes of all the streets
designated on the plat.^^ Tn one or two states the rights
Wolf V. Brass, 72 Tex. 133, 12 S.
W. 159.
46. Smith v. Young, 160 111.
1C3, 43 N. E. 486; Marshall v.
Lynch, 256 111. 522, 100 N. E. 289;
Kaatz V. Curtis, 215 Mass. 311,
102 X. E. 424; Lowenberg v.
Brown, 79 N. Y. App. Div. 414,
79 N. Y. Supp. lOGO (semble).
47. Pearson v. .Allen 151
Mass. 79, 21 Am. St. Rep. 426, 23
N. E. 731; DoAvney v. Hood, 203
Mass. 4, 89 N. E. 24; Bell v.
Todd, 51 Mich. 21, 16 N. W. 304;
State V. Hamilton, 109 Tenn. 276,
70 S. W. 619.
Occasionally the view has been
taken that while the grantee may
have a legal right as to all
strips designated as streets on
the plat, he has a right to an
injunction only as to those
which are more or less neces-
sary for his purposes. Daniel-
son V. Sykes, 157 Cal. 686, 28 L.
R. A. (N. S.) 1024, 109 Pac. 87;
Thorpe v. Clanton, 9 Ariz. 351,
85 Pac. 1061; Chapin v. Brown,
15 R. I. 579, 10 Atl. 639.
48. Price v. Stratton, 45 Fla.
535, 33 So. 644 (semble) ; Indian-
apolis V. Kingsbury, 101 Ind. 200.
51 Am. Rep. 749; Nagel v. Dean,
94 Minn. 25, 101 N. W. 954 (sem-
ble) ; Rowan v. Portland, 8 B.
Mon. 232; Bartlett v. Bangor, 67
Me. 460; Collins v. Land Co., 128
N. C. 563, 83 Am. St. Rep. 720,
39 S..E. 21; Jessop v. Kittaning
Borough, 225 Pa. 583, 74 Atl. 553;
Thaxter v. Turner, 17 R. I. 799,
24 Atl. 829; Sipe v. Alley, 117
Va. 819, 86 S. E. 122; Cook v.
Totten, 49 W. Va. 177, 87 Am. St.
Rep. 792, 38 S. E. 491; Edwards
V. Moundsville Land Co., 56 W.
Va. 43, 48 S. E. 754.
§ 366] Easements. 1323
of the grantee are said to be limited to the street on
which his land purports to abut, so far as is necessary
in order to reach a cross street in either direction.^''
In so far as the vendee thus acquires an easement in
the strips designated as streets on the plat he has, it ap-
pears, the right to have them kept open to the full width
indicated on the plat.^^
It has occasionally been stated that, when land is
sold or conveyed according to a plat, the grantee ac-
quires the right, not only to use the " streets appearing
on the plat, but also the right to have the public use
them,^^ the theory being that, having purchased with
this expectation, he should not be disappointed therein.
Such a ^'iew is not entirely satisfactory. Assuming that
there is a dedication by the sale or conveyance, the
public obviously acquires a right to use the streets, or
strips designated as streets, because in that case they
are streets. But this is a riglit in the public, not in the
individual grantee, and the conception of an easement,
appurtenant to land, to have the members of the public
use the property in the neighborhood along certain de-
signated routes, not for the purpose of access to such
land, but for tlieir own individual x^urposes, is a dif-
ficult one. Such an easement in one's favor would
mean, it seems, that though all those desiring to go
to or from his land, including himself, were allowed to
use these designated streets, he could maintain an
action because other persons were not allowed to do so.
Even when the streets are actually existent, it does not
seem that an abutting owner on one street could com-
l)lain because tlie public generally are not allowed to
49. Reis v. City of New York, 8 Wend. (N. Y.) 85, 22 Am. Dec.
188 N. Y. .58, 80 N. E. 573; Haw- 622.
ley V. Baltimore, 33 Md. 270. 51. Highland Realty Co. v.
50. Molitor v. Sheldon, 37 Kan. Avondale Land Co., 174 Ala. 32<),
246, 15 Pac. 231; White v. Tide- 56 So. 716; Earll v. City of Chi-
water Oil Co., 50 N. J. Eq. 1, 25 cago, 136 111. 277, 26 N. E. 370;
All. 199; Livingston v. New York. xllden Coal Co. v. Chulli.s, 200 111.
1324 Eeal Peopeety. [§ 366
use other streets in the neighborhood, this being for
the individual members of the public, or the muncipal
authorities, to do, and his rights can not well be greater
when the streets are nonexistent.
The failure of the decisions clearly to explain the
true nature of the estoppel operating to give to the
grantee of land an easement corresponding to a street
or way, which though actually nonexistent, is referred
to as a boundary, or of that operating to give to him an
easement corresponding to a street or other public place
appearing on a plat referred to in the conveyance, as
well as the difficulties involved in the question whether
a sale according to a plat, as distinct from a conveyance
according to a plat, operates to preclude the grantor
from denying the existence of the easement, appear to
emphasize the desirability of treating the matter, for
the most part at least, as one of the construction of the
instrument of conversance rather than as one of estoppel.
The question then in each case becomes one of the
meaning of the language used as regards the property
conveyed, whether, that is, it means tlie land alone, or
the land with an easement annexed thereto? While a
conveyance of land as bounded on a street or way is
ordinarily presumed, in case the street or way is non-
existent, to mean the land with a private easement
annexed thereto, this presumption has no operation in
case a different intention apj^ears from the particular
language used.^- And it would seem, as evidence is
always admissible to aid in the construction of an in-
strument, this presumption may be rebutted by refer-
ence to the surrounding circumstances at the time of
the transaction. So the fact that the grantee knew that
222, 65 N. E. 665; Rowan v. Port- v. Grenet. 22 Tex. 94; City of
land, 8 B. Mon. (Ky.) 232; Heitz Corsicana v. Zorn, 97 Tex. 317.
V. City of St. Louis, 110 Mo. 618, 78 S. W. 924; Lins v. Seefeld, 126
19 S. W. 735; Quicksall v. Phila- Wis. 610, 611, 105 N. W. 917.
uelphia, 177 Pa. 301; Clark v. 52. Ante, this section, note 38a.
Providence, 10 R. I. 437; Oswald
<§. 366] Easements. 1325
no street or way existed would be a mate.rial considera-
tion, not only as showing that he was not misled by the
reference to the street or way, but also as showing that
the reference to the street or way was not to be con-
sidered for the purpose of ascertaining whether an
easement passed by the conveyance. So a conveyance
of land by reference to a plat on which streets and
squares or the like appear, is presumed, in case the
streets or squares do not actually exist, to mean the
land with corresponding private easements annexed
thereto, but presumably evidence that the words used
meant the land without any easements appurtenant
thereto would be admissible. In case the conveyance
makes no reference to any street or way, or to a plat,
but the grantor, previous to making the conveyance,
states to the gTantee that there is a street or way,
such statement may be referred to for the purpose of
determining whether the language of the conveyance
meant the land with an easement appurtenant thereto
of the character referred to, or the land without such an
easement. And the same may be said as regards the
exhibition by the vendor of a plat on which streets or
squares appear, which plat is not referred to in the
conveyance. Such act on his part is, it is conceived,
to be considered because it serves to explain the meaning
of the language used in the conveyance as applying, not
to the land alone, but to the land with easements appur-
tenant thereto corresponding to the public easements
depicted on the plat. Just as in the case of what is
ordinarily referred to as the implied grant of an ease-
ment, the basic principle is that a conveyance of land
in general terras may be shown, by reference to ex-
trinsic facts, to be intended as a conveyance of land
with an easement annexed, so in this case a conveyance
of land may be shown, by reference to an extrinsic fact,
to be intended as a conveyance of land witli an oasomont
or easements annexed. The application of tlie doctrine
of estoppel might well be confined to those cases fn
2 R. p.— 9
1326
Real Property.
[^ 366
which there is an actual misrepresentation by the ven-
dor, on which the purchaser relies, as indicated in the
following subsection.
(c) By representation or acquiescence. If, in
order to effect a sale of land, the intending vendor
states that there is a street or way adjacent to or near
the land, or an easement appurtenant thereto, and on
the faith of such statement the purchase is made, the
vendor is ordinarily estopped to deny the existence of
the way, street or other easement,^^ and the same effect
has occasionally been given to the exhibition by the ven-
dor to the vendee, before the sale, of a plat showing a
particular street or way as existing in connection with
the property.^^
The doctrine of estoppel by representation, by means
of conduct of a particular character, has occasionally
53. Prescott v. Edwards, 117
Cal. 304, 59 Am. St. Rep. 156, 49
Pac. 178; Kirkpatrick v. Brown,
59 Ga. 450; Mattes v. Frankel,
157 N. Y. 603, 52 N. E. 585, 68
Am. St. Rep. 804; Cleaver v.
Manhanke, 120 Iowa, 77, 94 N. W.
279; Kixmiller v. Bait. & 0. S,
W. R. Co., 60 Ind. App. 686, 111
N. E. 401.
So it was held that purchaser
ot lots to whom the vendor had
stated that there were appurte-
nant thereto rights as to sewers
and a water system could not
be deprived by the vendor of the
right to make use of such sewer
and water systems as existed.
Biggs V. Sea Gate Ass'n, 211 N.
Y. 482, 105 N. E. 664.
The purchase must obviously be
made in reliance on the state-
ment by the vendor in order that
the latter be estopped. Poronto
V. Sinnott, 89 Vt. 479, 95 Atl. 647.
54. Ford v. Harris, 95 Ga. 97,
22 S. E. 144; Cihak v. Klekr, 117
111. 643, 7 N. E. Ill; Dubuque
V. Maloney, 9 Iowa, 450, 74 Am.
Dec. 358; Babcock v. Heenan, 193
Mich. 229, 159 N. W. 494; In re
Edgewater Road, 13 N. Y. App.
Div. 203, affirmed 199 N. Y. 560;
In re Sedgwick Ave., 162 N. Y.
App. Div. 236, 147 N. Y. Supp.
661.
In Pyper v. Whitman, 32 R. I.
510, 80 Atl. 6, such an effect was
denied to the exhibition of a plat,
apparently on the theory that
it would involve a violation of
the "parol evidence" rule. In
Dawson v. St. Paul Fire & Ma-
rine Ins. Co., 15 Minn. 36, 2 Am.
Rep. 139, it was questioned
whether the exhibition of a plat
should have this effect.
54d. Ante, § 339(h).
§ 366] Easements. 1327
been applied or asserted for the purpose of establisliing
an easement when the one clai'ming the easement has
made improvements, or otherwise adopted a particuhir
course of action on the assumption that a changed con-
dition already existing in connection with a stream or
body of water would be allowed to continue, with the
result that the o^vner of the land on which such con-
dition existed was precluded from changing back to the
original condition,^"'^*^ and one might be estopped to
deny the existence of an easement by his conduct in
inducing another to make improvements for the purpose
of utilizing the supposed easement.^^^
In case there is an attempted oral grant of an
easement, and the intended grantee makes improve-
ments for the purpose of exercising the easement, equity
will recognize and enforce the easement on the theory of
what is ordinarily referred to as that of part perfor-
mance^*^ but which is essentially the theory of estoppel.
54e. See MiUer & Lux v. En- v. Lewis, 13 Conn. 303, 33 Am.
terprise Canal & Land Co., 169 Dec. 405; Penn American Plate
Cal. 415, 147 Pac. 567; Morris Glass Co. v. Schwinn, 177 Ind.
Canal & Banking Co. v. Diamond 645, 98 N. E. 715; Townsend v.
Mills Paper Co., 71 N. J. Eq. 481, Epstein, 93 Md. 537, 52 L. R. A.
64 Atl. 746, 73 N. J. Eq. 414, 75 409, 86 Am. St. Rep. 441, 49 Atl.
All. 1101; Smith v. Row- 629; Morrill v. St. Anthony Falls
land, 243 Pa. 306, 90 Atl. 183. See Water Power Co., 26 Minn. 222,
cases cited, note to L. R. A. (N. 37 Am. Rep. 399, 2 N. W. 842;
S.) 1916C, at p. 940 et seq. Laird v. Atlantic Coast Sanitary
Ordinarily, however, one's mere Co., 73 N. J. Eq. 49, 67 Atl. 387;
acquiescence in the making of New York Rubber Co. v. Rothery,
improvements by another for the 107 N. Y. 310, 1 Am. St. Rep.
purpose of making a use of the 822, 14 N. E. 269; Lavery v.
latter's land which involves a vio- Arnold, 36 Ore. 84, 57 Pac. 908,
lation of a»iiatural right appertain- 58 Pac. 524; Silver Spring Bleach-
ing to the former's land involves no ing & Dyeing Co. v. Wanskuck,
estoppel to deny the existence of 13 R. I. 611.
an easement in diminution of such 54f. Ante, § 349(r]), notes 44-
catural right. See Lux v. Haggin, 49.
69 Cal. 255, 10 Pac. 674; Johnson
1328 Kb-\l Property. [§ 367
III. Eights of Usee.
§ 367. Easements created by grant. The mode io
which an easement may be exercised, that is, the charac-
ter and extent of the rights and privileges involved
therein, is, in the case of an easement created by grant,
determined by construction of the langniage of the
grant.^^ So it is a question of construction whether the
easement is restricted by the use made of the dominant
tenement at the time of the grant, or whether the burden
of the easement may be increased with any increase or
change in the use of the dominant tenement.^^
Since the language used in the grant of an ease-
ment is ordinarily of a general character, containing
no mention of specific rights and pri\ileges, the proc-
ess of construction involves not only the ascertainment
of the actual intention from the language used, but
also the establishment of a presumed, a fictitious, inten-
tion, in regard to matters as to which, so far as appears,
there was no actual intention,'^' and for this purpose the
courts have established certain rules of construction to
be applied in connection with such a grant. Frequently
these rules are stated as positive rules of law and not
of construction, but they are, in their last analysis,
merely rules of construction, since they are controlled
by any expression of intention in the grant. For in-
stance, when it is said that the owner of the dominant
tenement may make such changes on the servient tene-
ment as are necessary for the proper exercise of the
55. Whitehead v. Parks, 2 271; Kinney v. Hooker, 65 Vt.
Hurl. &X. 370; Williams v. James, .333. 36 Am. St. Rep. 864, 26 Atl.
L. R. 2 C. P., 577; Field v. Leiter, 690; Stephen Putney Shoe Co. v.
118 111. 17, 6 N. E. 877; Moore v. Richmond F. & P. R. Co., 116
Fletcher, 16 Me. 63, 33 Am. Dec. Va. 211, 81 S. E. 93.
633; French v. Marstin, 24 N. H. 56. PoRt, § 369.
440, 57 Am. Dec. 294; Abbott v. 57. See Salmoiul, Jurispru-
Butler, 59 N. H. 317; Wells v. dence (4th Bd.) 141, note.
Tolman, 156 N. Y. 636, 51 N. E.
^, 367] Easements. 1329
easement,^^ this properly means that the grant of an
easement is lorima facie to be construed as intended to
confer such a privilege. This practice of stating a rule
of construction in the form of a rule of law is of such
obvious convenience in this connection that it will be
adopted to some extent in the following pages, in spite
of the technical inaccuracy involved therein.
As in the case of other written instruments, the
circumstances under which the grant was made are to
be considered as aids in its construction.^^ In case of
doubt the grant of an easement is construed, as are
conveyances generally, in favor of the grantee rather
than the grantor.*^^ While a reservation of an ease-
ment is, it seems, to be construed in favor of the
grantee of the land.*'^
The mode in which the grantee of the easement,
wtih the grantor's acquiescence, exercised the easement
after its acquisition, that is, the practical construction
of the grant by the parties, may be referred to in order
to aid in ascertaining its meaning,^^ }q^\^ \\^q f^^^ n^^X
58. Post § 370. 235 Pa. 5, 83 Atl. 592; Smith v.
59. Wood V. Saunders, 44 Law Duncan, 35 Utah, 203, 99 Pac.
J. Ch. 514; Currier v Howes, 103 673.
Cal. 431, 37 Pac. 521; Peck v. 60. Sweeney v. Landers, Frary
Mackowsky, 85 Conn. 190, 82 Atl. & Clark, 80 Conn. 575, 69 Atl. 566;
199; Baker v. Frick, 45 Md. 337, Frisbie v. Bigham Masonic Lod?e
24 Am. Rep. 506; Mendell v. De- No. 256, 133 Ky. 588, 118 S. W.
lane, 7 Mete, (ilass.) 176; Row- 359; Atkins v. Bordman, 2 Mete.
ell V. Doggett, 143 Mass. 483, 10 (Mass.) 457; Duross v. Singer,
N. E. 182; McConnell v. Rathbun, 224 Pa. 573, 73 Atl. 951; First
46 Mich. 303, 9 N. W. 426; White Baptist Soc. v. Wetherall, 34 R.
V. Eagle & Phen.ix Hotel Co., 68 L 155, 82 Atl. 1061; Stephen Put-
N. H. 38, 34 Atl. 672; Cheswell ney Shoe Co. v. Richmond F. &
V. Chapman, 38 N. H. 14, 75 Am. p. R. Co., 116 Va. 211, 81 S. E.
Dec. 158; Cooper v. Louanstein, 93.
37 N. J. Eq. 284; Herman •/. 61. Mitchell v. Reid, 192 N. Y.
Roberts, 119 N. Y. 37, 7 L. R. \. 255, 85 N. E. 65; Redemptorists
226, 16 Am. St. Rep. 800, 23 N. v. Wenig, 79 Md. 348, 29 Atl. 667.
E. 442; Hotchkiss v. Young, 42 See Reese Hiowell Oo. v. Brown,
Ore. 446, 71 Pac. 324; Mercantilo 48 Utah, 142, 158 Pac. 684.
Library Co. v. Fidelity Trust Co.,
1330
Real Property.
[§ 367
the grantee inade for a considerable time a more limited
use of the land than that justified by the grant cannot
affect the construction of a grant which is in terms
unambiguous.*'^
It has been said in one state that the owner of an
easement in the land of another need not use it in the
particular manner prescribed by the instrument which
creates it, and may use it in a different manner, pro-
vided he does not increase the servitude or change it to
the injury of the servient tenement.^^ The exact mean-
ing of this statement does not clearly appear. It can
hardly mean that one having an easement of a certain
character can substitute an easement of a different
character, provided this does not operate to the preju-
dice of the servient tenement.^^ The statement was
made on the authority of decisions that in the case of
an easement to flow land or to have water pass to one's
62. Fox V. Millar, 150 Fed.
320; Winslow v. City of Vallejo,
148 Cal. 723, 5 L. R. A. (N. S.)
851, 113 Am. St. Rep. 349, 84 Pac.
191; Drummond v. Foster, 107
Me. 401, 78 Atl. 470; Blais v.
Clare, 207 Mass. 67, 92 N. E. 1009;
Onthank v. Lake Shore & M. S.
R. Co., 71 N. Y. 194; Bernero v.
McFarland Real Estate Co., 134
Mo. App. 290, 114 S. W. 531; Mer-
cantile Library Co. v. Fidelity
Trust Co., 235 Pa. 5, 83 Atl. 592;
Cram v. Chase, 35 R. I. 98, 43
L. R. A. N. S. 824, 85 Atl. 642;
Sked V Pennington. Spring Water
Co., 72 N. J. 599, 65 Atl. 713.
So when one having an ease-
ment of light availed himself of
such easement by maintaining
windows in a wall for many
years, this was regarded as lix-
ing the character and extent of
the easement. Kesseler v. Bow-
ditch, 223 Mass. 265, 111 N. E.
887.
63. Bowers v. Myers, 237 Pa.
533, 85 Atl. 860; Hammond v.
Hammond, 250 Pa. 51, 101 Atl.
855. This, even though the per-
son having the easement con-
sented to an erection which pre-
vented it full exercise. Cotting
V. Murray, 209 Mass. 133, 95 N.
E. 212.
64. Tallon v. City of Hoboken,
60 N. J. L. 212, 37 Atl. 895, it
being there decided that if one
dedicating land for a street re-
served the right to lay tracks
for horse cars and steam cars
he could lay tracks and string
wires for electric cars.
65. See United States Pipe Line
Co. V. Delaware, etc., R. Co., 62
N. J. L. 254. 42 L. R. A. 572.
§ 367]
Easements.
1331
land, the use to which the water is put is immaterial.^®
These decisions do not appear to support the statement.
If the owTier of an easement enters on the servient
tenement for a purpose not included in the rightful
exercise of the easement, he is liable as a trespasser to
the same extent as if he had no easement."^
Rights of way. A right of way appurtenant to
a particular tenement, as being intended for the pur-
pose of access to and egress from such tenement, can-
not be utilized by the owner of such tenement for the
purpose of reaching other land.^^ He may, however,
after going to the dominant tenement by the right of
way, pass to a place beyond, if he did not have this in
mind when going to the dominant tenement, the ques-
tion being of his bona fides in making use of the way.''^
66. Luttrell's Case, 4 Co. Rep.
S7; Sanders v. Norman, 1 B. &
Aid. 258; Johnston v. Hyde, 33
N. J. Eq. 632; Angell, Water-
courses, §§ 228-230.
67. Kaler v. Beaman, 49 Me.
£07; Appleton v. FuUerton, 1
Gray (Mass.) 186; Ganley v.
Looney, 14 Allen (Mass.) 40; El-
liott V. Rhett, 5 Rich. (S. C.) 405,
57 Am. Dec. 750.
68. Howell V. King, 1 Mod.
190; Colchester v. Roberts, 4
Mees. & W. 769; West v. Louis-
ville & N. R. Co., 137 Ala. 568,
r.4 So. 852; Anderson v. Sweeney,
82 Conn. 694, 75 Atl. 76; Good-
willie Co. V. Commonwealth Elec-
tric Co., 241 111. 42, 89 N. E. 272;
Hoosier Stone Co. v. Malott, 130
Ind. 21, 29 N. E. 412; Louisville,
N. A. & C. Ry. Co. V. Malott, 135
Ind. 113, 34 N. E. 709; Albert v.
Thomas, 73 Md. 1, 20 Atl. 912;
Davenport v. Lamson, 21 Pick.
Ulass.) 72; Greene v. Canny, 137
Mass. 64; Randall v. Grant, 210
Mass. 302, 96 N. E. 672; French
V. Marstin, 32 N. H. 316; Diocese
of Trenton v. Toman, 74 N. J.
Eq. 702, 70 Atl. 606; Hales v.
Atlantic Coast Line R. Co., 172
N. C. 104, 90 S. E. 11; Shroder
V. Brenneman, 23 Pa. St. 348;
Springer v. Mclntyre, 9 W. Va.
196; Reise v. Enos, 76 Wis. 634,
8 L. R. A. 617, 45 N. W. 414.
So it was held that one could
not bring materials to the dom-
inant tenement by a right of way
appertaining thereto, and after
leaving them there a short time,
carry them to a point beyond,
to be used in the construction
of buildings. Skull v. Glenister.
16 C. B. (N. S.) 81.
69. Williams v. James, L. R.
2 C. P. 577; French v. Marstin,
32 N. H. 316. The use of a right
of way for access to a highway
stands on a different basis, and
the owner of the dominant tene-
1332
Eeal Peoperty.
[§ 367
A right of way may be general, as capable of
use for all purposes, or may be limited to use by foot
passengers only, or horses only, or particular species
of vehicles, or for the transportation of certain classes
of articles.'^^ So one may have a right of way for
carriages, without the right of driving cattle along the
way, or of using it for the transportation of farm
products ;'^^ or he may have a w^ay for agricultural
purposes, without any right to transport other classes
of articles, such as coal taken from the dominant tene-
ment.'^-
A grant in general terms will ordinarily be con-
strued as creating a general right of way cai>able of
use for all reasonable purposes,'^ but the circum-
stances may demand a different construction,^^ as for
instance when the physical condition of the servient
tenement is such that a general user of the way would
involve an injury to such tenement,'^ and the named
ment may go therefrom to the
highway, though he intends there-
after to go from the highway
to a point beyond, since this is
the obvious purpose of a right of
way to a highway. Colchsster v.
Roberts, 4 Mees. & W. 769.
70. As a privilege of trans-
porting wood (Myers v. Dunn, 49
Conn. 71), stone (Hoosier Stone
Co. V. Malott, 130 Ind. 21, 29 N.
E. 412; Shoemaker v. Cedar
Rapids, I. F. & N. W. R. Co., 45
Minn. 366, 48 N. W. 191), or coal
(Webber v. Vogel, 159 Pa. 235, 28
Atl. 226).
71. Ballard v. Dyson, 1 Taunt.
2'i9; Herman v. Boberts, 119 N.
Y. 37, 16 Am. St. Rep. 800; Perry
V. Snow, 165 Mass. 23; Myers v.
Dunn, 49 Conn. 71.
72. Cowling v. Higginson, 4
Mees. & W. 245.
That an automobile was a car-
riage within a grant of a right
of way for carriages, see Diocese
of Trenton v. Toman, 74 N. J.
Eq. 702, 70 Atl. 606.
73. Thomas Cusack Co. v.
Mann, 160 111. App. 649; Frost
V. Jacobs, 204 Mass. 1, 90 N. E.
357; Randall v. Grant, 210 Mass.
302, 96 N. E. 672; Abbott v. But-
jer, 59 N. H. 317; Shreve v. Math-
is, 63 N. J. Eq. 170, 52 Atl. 234;
Arnold v. Fee, 148 N. Y. 214, 238,
42 N. E. 588; Bowers v. Myers,
237 Pa. 533, 85 Atl. 860; Central
Christian Chui-ch v. Lennon, 59
Wash. 425, 109 Pac. 1027; United
Land Co. v. Great Eastern Ry.
Co., 10 Ch. App. 586.
74. See Cannon v. Villars, 8
Ch. Div. 420.
75. Rov/ell v. Daggett, 143
Mass. 483, 10 N. E. 182.
^ 367]
Easements.
133:
width of the way may be such as to render it apparent
that a foot way only is intended."^^
A right of way may, by the terms of the grant, be
limited to certain seasons" or persons,^ « or even to a
particular time of day.'^ It may also be subject to
interruption by reason of a particular use that may
be made by the owner of the servient tenement.^'^
In the absence of express restrictions in that re-
gard in the grant, it seems that all persons who can be
regarded as having peraiission, express or implied, to
enter on the dominant tenement, may use a way for
the purpose of access to such tenement and of egress
therefrom.^^ Consequently members of the family of
the dominant owner,^^ i^[^ servants and employees,^=^
his guests,^^ and tradesmen and other persons with
whom he does business,^^ may do so. Such persons are
76. Perry v. Snow, 165 Mass.
13, 42 N. E. 117.
77. Wells V. Tolman, 156 N.
Y. 636, 51 N. E. 392.
78. Hollins v. Verney, 13 Q.
B. D. 304.
79. Collins v. Slade, 23 Week-
ly Rep. 199.
80. Wells V. Tolman 156 N.
Y. 636, 51 N. E. 392; Mercer v.
Woodgate. L. R. 5 Q. B. 26.
81. Shreve v. Mathis, 63 N. J.
Eq. 170, 52 Atl. 234; Gunson v.
Healy, 100 Pa. 42.
82. Griffith v. Rigg, 18 Ky.
Law Rep. 463, 37 S. W. 58; Bax-
endale v. North Lambeth Liberal,
etc., Club (1902) 2 Ch. 427.
83. Metcalfe v. Westaway, 34
T^. .1. C. P. 113; Cleaves v. Bra-
man, 103 Me. 154, 68 Atl. 857;
Shreve v. Mathis, 63 N. J. Etj.
170, 52 Atl. 234.
84. Baxendale v. North Lam-
beth Liberal Club (1902) 2 Ch.
427.
85. Shreve v. Mathis, 63 N. J.
Eq. 170, 52 Atl. 234; Common-
wealth V. Burford, 225 Pa. 93, 73
Atl. 1064.
In Tutwiler Coal, Coke & Iron
Co. V. Tuvin, 158 Ala. 657, 48 So.
79, it was apparently held that
a person was not justified in using
a way to go to a residence to
collect a furniture bill unless
circumstances appeared showing
an invitation to such person on
the part of the person entitled
to the way, to use the way, or
his consent to such use. It would
seem that the purchase of the
furniture might have been re-
garded as justifying the inference
that the purchaser consented to
have the vendor send to collect
the bill. The court emphasises
the fact that the way was one of
necessity, but it is difficult to see
the materialty of this consider-
ation.
1334 Real Property. [§ 367
not guilty of trespass in using the way, and the owner
of the easement would, it seems, have a right of action
in case there was an interference with the use of the
way by a member of one of these classes.
The owner of the right of way may have, in some
cases, in addition to the privilege of passage, and as in-
cidental thereto, the privilege of placing goods tempo-
rarily on that part of the servient tenement on which the
w^ay is located,^*^"^^ of letting horses and carriages stand
thereon,®^ or of swinging a gate thereover.^^ The grant
of a right of way in general terms has been construed as
not enabling the grantee to lay a pipe for the transpor-
tation of gas or oil,^*^ to string electric light wires,^^
to fence off the way,^- or to take ice,^^ or herbage.^''
One to whom was granted a right of way across a creek
was regarded as entitled to build a bridge although for
twenty years after the grant there was merely a ford.*'"*'*
The person entitled to use a private way cannot
deviate therefrom on the land outside of the way be-
cause the way is impassable, unless, perhaps, there is
an obligation upon the servient owner to repair the
86-87. Appleton v. FuUerton, 1 A. 512, 33 Am. St. Rep. 55, 52
Gray (Mass.) 186. Compare Kaler N. W. 590; Contra, Murray v.
V. Beanaii, 49 Me. 207. Murray v. Dickson, 57 Tex. Civ.
88. Van O'Linda v. Lathrop, 21 620, 123 S. W. 179, where there
Pick. (AFass.) 292, 32 Am. Dec. were circumstances to show that
261. it was contemplated that the way
89. Ditto. was to be used for driving cattle,
90. United States Pipe Line and Harvey v. Crane, 85 Mich.
Co. V. Delaware, L. & W. R. Co., 316, 12 L. R. A. 601, 48 N. W.
62 N. J. L. 254, 42 L. R. A. 572, 582, where the right of way was
41 Atl. 759; Allen v. Scheib, 257 not created by grant but was laid
Pa. 6, 101 Atl. 102. off under the statute.
91. Carpenter v. Capital Elec- 93. Julian v. Woodsmall,' 82
trie Co., 178 111. 29, 43 L. R. A. Ind. 568.
645, 69 Am. St. Rep. 286, 52 N. E. 94. Emans v. Turnbull, 2
973. Johns. (N. Y.) 313, 3 Am. Dec.
92. Moffitt V. Lytle, 165 Pa. 427.
173, 30 Atl. 922; Wiley v. Ball, 94a. Hammond v Hammond,
72 W. Va. 683, 79 S. E. 659; Sizer 258 Pa. 51, 101 Atl. 855.
V Quinlan, 82 Wis. 390, 16 L. R.
§ 367]
Easements.
1335
way,^^ or unless tlie latter has caused the obstruction
of the way."*'
Location. If the location and limits of the
right of way are not defined in the grant, a reasonably
convenient and suitable way is presumed to be in-
tended, and the right cannot be exercised over the
whole of the land."^ Subject to the requirement of
reasonable convenience and suitability, the owmer of
the servient tenement may ordinaril}'-, in such case, fix
the location, and it has been considered that if he
fails to do so, the owner of the easement is entitled
to fix it."* And this is the case as regards a way
of necessity to the same extent as any other way created
by grant."^
95. Taylor v. Whitehead, 2
Dou?. 7^5; Lund v. Wilcox, 34
Utah, 205, 97 Pac. 33.
96. Selby v. Nettlefold, 9 Ch.
App. Ill; Farnum v. Piatt, 8
Pick. (Mass.) 339; Bass v. Ed-
wards, 126 I\Iass. 445; Kent v.
Judkins, 53 Me. 162; Rockland
Water Co. v. Tillson, 75 Me. 170;
Haley v. Colcord, 59 N. H. 7, 47
Am. Rep. 176; Jarsdadt v. Smith,
51 Wis. 96. Contra, Williams v.
Safford, 7 Barb. (N. Y.) 309. See
Holmes v. Seely, 19 Wend. (N.
Y.) 507.
97. Long V. Gill, 80 Ala. 408;
Johnson v. Kinnicutt. 2 Cush.
(Mass.) 153; Gardner v. Webster,
64 N. H. 520, 15 Atl. 144; Grafton
V. Moir, 130 N. Y. 465, 27 Am. St.
Rep. 533, 29 N. E. 974 (reser-
vation).
98. Ballard v. Titus, 157 Cal.
673, 110 Pac. 118. Shedd v. Amer-
ica Maize Products Co., 60 Ind.
App. 146, 108 N. E. 610; Bangs v.
Parker, 71 Me. 458; MoKenney
McKenney, 216 Mass. 248, 103 N.
E. 631; Bunch v. Wheeler, 210
Mo. 622, 109 S. W. 654; Callen v
Hause, 91 Minn. 270, 97 N. W.
973; Smith v. Wiggin, 52 N. H.
112; Peduzzi v. Restelli, 79 Vt.
349, 64 Atl. 1128; Stephens v. Gor-
don, 22 Can. Sup. Ct. 61. In Mo-
Kell V. Collins Colliery Co., 46 W.
Va. 625, 33 S. E. 765, it is said
that the owner of the way may
locate it. The opinion refers
to Hart V. Connor, 25 Conn.
331, but there the right to locate
the way was expressly reserved
99. Gale, Easements [8th ed.]
1982; Kripp v. Curtis, 71 Cal. 62,
n Pac. 879; Ritchey v. Welsh. 149
Ind. 214, 40 L. R. A. 105, 4S N. E.
1031; Russell v. .Tackson, 2 Pick.
(Mass.) 574; Bass v. Edwards,
126 Mass. 445; Powers v. Harlow,
53 Mich. 507, 51 Am. Rep. 154;
Herrin v. Siebern, 46 Mont. 226,
127 Pac. 323; Holmes v. Seely, 19
Wend. (N. Y.) 507; Capers v. Wil-
son. .3 McCord, (S. C.) 170; McMil-
1336
Real Property.
[§ 867
In case tliere has been, up to tlie time of the grant
and at the time thereof, a user of the land for purposes
of passage along a certain line, this will, it has been
said, be presumed to be the location intended.^
Frequently, the location of the way is determined
by subsequent agreement, ^^ or by the exercise of the
right of way in a particular line with the acquiescence
of the owner of the servient tenement,^ the parties to
the grant thus placing their own construction thereon
in this regard.
The power of a court of equity to fix the location
has been recognized in a number of cases,'' apparently
len V. McKee, 129 Tenn. 39, 164
S. W. 1197; Jenne v. Piper, 69 Vt.
497, 38 Atl. 147.
But not, it has been said, when
the way of necessity resulted from
a partition proceeding between
several persons, so that the re-
cognition of an option to locate in
one of them would involve a power
to discriminate between the
others. Mesmer v. Uharriet, 174
Cal. 110, 162 Pac. 104.
1. Karnmuller v. Krotz, 18
Iowa, 352; Cotting v. Murray, 209
Mass. 133, 95 N. E. 212; Thompson
V. Flint & P. M. R. Co., 131 Mich.
95, 90 N. W. 1037; Crocker v.
Crocker, 5 Hun, (N. Y.) 587;
Kraut's Appeal, 71 Pa. St. 64;
Kinney v. Hooker, 65 Vt. 333, 36
Am. St. Rep. 864.
la. Gerrish v. Shattuck, 128
Mass. 571; Eureka Land Co. v.
Watts, 119 Va. 506, 89 S. E. 968;
See Morris v. Blunt, 49 Utah, 243,
161 Pac. 1127.
2. Roberts v. Stevens, 40 111. App.
138; Dickenson v. Crowell, 120
Iowa, 254, 94 N. W. 495; Roland
V. O'Neal, (Ky.) 122 S. W. 827,
(way of necessity) ; Bannon v. An-
gier, 2 Allen (Mass.) 128; O'Brien
V. Goodrich, 177 Mass. 32, 58 N. E
151; Board of Sup'i^ of Lamar
County V. Elliott, 107 Miss. 841, 66
So. 203; Davis v. Watson, 89 Mo.
App. 15; Wynkoop v. Burger, 12
Johns. (N. Y.) 222; Crocker v.
Crocker, 5 Hun, (N. Y.) 587;
Warner v. Columbus, etc., R. Co.
39 Ohio St. 70; Eureka Land Co. v.
Watts, 119 Va. 506, 89 S. E. 968;
Fritsche v. Fritsche, 77 Wis. 266,
45 N. W. 1088; Kalinowski v.
Jacobowski, 52 Wash. 359, 100 Pac.
852.
But it was held that the acqui-
escence by the servient owner in
the passage by the dominant
owner over a particular line did
not show a location of the way in
this line if the condition of the
servient tenement was such that
it was immaterial where the other
passed. Smith v. Wiggin, 52 N. H.
112. And see Colt v. Redfield, 59
Conn. 427, 22 Atl. 426.
3. Lide v. Hadley, 36 Ala. 627,
76 Am. Dec. 338; Ballard v. Titus,
157 Cal. 673, 110 Pac. 118; David-
son V. Ellis, 9 Cal. App. 145, 98
Pac. 254; McKenney v. McKen-
§ 367] Easements. 1337
on the ground that a multiplicity of suits is thereby
avoided.
Width of way. As regards the width of the
way, a specific statement in the grant obviously gov-
erns,^ and such a statement is not controlled by con-
siderations as to what is reasonable or necessary.^ A
specification of the way as being of a certain width
has been regarded as not entitling the grantee to
utilize more than that width in order to be able to
make a road of that width.*^
If the Avidth is not fixed by the terms of the grant,
the grantee is ordinarily entitled to a way of such width
as is sufficient to afford reasonable access and egress.'^
And if the way is granted for a particular purpose,
what is reasonably necessary for that purpose is to be
considered.^ That the grantee used a particular width
with the acquiescence of the grantor has been regarded
as controlling in this regard as a x>i'actical location of
the way.^ And the particular grant may call for a
ney, 216 Mass. 248, 103 N. E. a way three feet wide, the alley
6731; Burnham v. Mahoney, 222 being clearly defined by per-
Mass. 524, 111 N. E. 396; Higbee manent structures as an alley less
Fishing Club v. Atlantic City than three feet wide. The refer-
Electric Co., 78 N. J. Es. ence to width was obviously not a
434, 79 Atl. 326 (way of statement of the width of the way
necessity) ; Gardner v. Webster, 64 to be exercised, but merely an in-
N- H. 520, 15 Atl. 144; McMillan accurate description of the place
V. MfKee, 129 Tenn. 39, 164 S W. where it was to be exercised.
1197 (way of necessity). 7. Bright v. Allan, 203 Pa. 386;
4. See Stetson v. Curtis, 119 Lipsky v. Heller, 199 Mass. 310, 85
Mass. 266; Gray v. Kelley, 194 N. E. 453; Walker v. Pierce, 38 Vt.
Mass. 533, 80 N. E. 651. 94; Wiley v. Ball, 72 W. Va. 685,
5. Ballard v. Titus, 157 Cal. 79 S. E. 659.
673, 110 Pac. 118. 8. Drummond v. Foster, 107
6. Ballard v. Titus, 157 Cal. Me. 401, 78 Atl. 470; O'Brien v.
673, 110 Pac. 118; Dewire v. Han- Murphy, 189 Mass. 353, 75 N. E.
ley, 79 Conn. 454, Atl. 573. ''^'Il- ^ ^ _,„
V o* o* *r,T^t.., 9- George V. Cox, 1 14 Mass. 382.
In Stevenson v. Stewart, 7 Phila. iq. Salisbury v. Andrews, 19
29.3, it was considered that a grant pick. (Mass.) 250; Gerrish v.
of a right to use an alley three Shattuck. 128 Mass. 571; Steven-
feet wide did not give a right to son v. Stewart, 7 Phila. (Pa.) 293.
1338
Eeal Peoperty.
[§ 367
construction as intending a way as already existent and
defined by use or paving or the like.^<^ A grant or reser-
vation of a right of passage over a space of a named
width has been construed as giving a right of way, not
of that width, but of merely a convenient width, to be
located upon that space. ^^
Change of location. After the point or place
at which, or line along which, an easement is to be ex-
ercised has once been fixed, whether by the express
terms of the grant, or by agreement or acquiescence, one
of the parties cannot change such location without the
consent of the other.^^ There are in this country, how-
ever, several cases to the effect that the location of
a way may be changed by oral agreement of the
parties, or agreement inferred from conduct. ^^ These
But a grant of a right of way
over an existing road does not
necessarily involve a right of
way as to the whole width of
the road, so as to preclude the
erection of an obstruction on the
road not interfering with the
reasonable exercise of the ease-
ment. Grafton v. Moir, 130 N. Y
465, 29 N. E. 974, 27 Am. St. Rep.
533; Abney v. Twombley, 39 R.
I. 304, 97 Atl. 806; Clifford v.
Hoare, L. R. 9 C. P. 362. "See
Gimble v. Wehr, 165 Wis. 1, 160
N. W. 1080.
11. Johnson v. Kinnicut, 2
Gush. (Mass.) 153; Short v. De-
vine, 146 Mass. 119, 15 N. E. 148.
In Cleaves v. Braman, 103 Me.
154, 68 Atl. 857, it was held that
the grant of a way over "a piece
of land forty feet wide in every
part" did not entitle the grantee
to use the whole forty feet if
not needed. Compare Tudor Ice
Co. v. Cunningham, 8 Allen
(Mass.) 139.
12. Richey v. Welsh, 149 Ind.
214, 40 L. R. A. 105, 48 N. E. 1031;
Jenuison v. Walker, 11 Gray,
(Mass.) 423 (aqueduct) ; Kesseler
V. Bowditch, 223 Mass. 265, 111
N. E. 887 (windows) ; Galloway
V. Wilder, 26 Mich. 97; Jaqui v.
Johnson, 27 N. J. Eq. 526; Man-
ning V. Port Reading R. Co., 54
N. J. Eq. 46, 33 Atl. 802; John-
son V. Hahne, 61 N. J. Eq. 438,
49 Atl. 5 (easement of light) ;
Onthank v. Lake Shore R. Co.,
71 N. Y. 174 (aqueduct) ; Moore-
Lead V. Snyder, 31 Pa. 514 (tail
race) ; Garraty v. Duffy, 7 R. I.
476; Eureka Land Co. v. Watts,
119 Va. 506, 89 S. E. 968 (way);
Rhoades v. Barnes, 54 Wash. 145,
102 Pac. 884 (right to take water
from stream).
13. Durkee v. Jones, 27 Colo.
159, 60 Pac. 618; Peck v. Lloyd,
38 Conn. 566; Wynkoop v. Burger,
12 Johns. (N. Y.) 222; Hamilton
§ 367] Easements. 1339
cases do not explain how, since an easement can be
created only by grant or its equivalent, one can ac-
quire, by oral agreement, an easement not previously
existing, even though he does, in exchange therefor,
relinquish a similar easement which he has in the same
land. A right of wa}^ along line A is not the same ease-
ment as a right of way along line B, even though the
dominant and servient tenements are identical in the
two cases. There are cases in this country,^* as in
England, ^^ in which the view is indicated that the
substituted way is to be regarded as temporary only,
so that if such way is withdrawn by the owner of the
servient tenement, the other has a right to use the old
way. If, however, there is an intention permanently to
change the route, it might well be found, it would seem,
that the way over the old route is extinguished by
abandonment.^*' And in ease the owner of the ease-
ment makes expenditures on the servient tenement on
the faith of the oral agreement, he might be regarded
as acquiring an easement in accordance therewith by
estoppel. '' The court would no doubt endeavor to
avoid a finding that the easement over the original
route was abandoned unless it could recognize a valid
easement over the new route.
V White, 4 Barb. (N. Y.) 60; gerald, 70 Vt. 468, 41 Atl. 504
Smith V. Barnes, 101 Mass. 275; Tee Mary Helen Coal Co. v. Hat-
Chenault v. Gravitt, 27 Ky. L. field, 75 W. Va. 148, 83 S. E.
Rep. 403, 85 S. W. 184; Berkey & 292.
Gay Furniture Co. v. Valley City 14. Wright v. Willis, 23 Ky.
Milling Co., 194 Mich. 234, 160 Law Rep. 556, 63 S. W. 991;
N. W. 648; Rumill v. Robbins, 77 Hamilton v. White, 5 N. Y. 9.
Me. 193 (way of necessity) ; Tar- 15. Lovell v. Smith, 3 C. B. N.
butt V. Grant, 94 Me. 371, 47 Atl. S. 120.
899; Smith v. Lee, 14 Gray 16. Crounse v. Wemple, 29 N.
(Mass.) 473; Gage v. Pitts, 8 Y. 540; Pope v. Devereux, 5 Gray
Allen (Mass.) 531; Davidson v. iMass.) 409. Nichols v. Peck, 70
Kretz, 127 Minn. 313, 149 N. W. Conn. 439, 40 L. R. A. 81, 66 Am.
652; Lawton v. Tison, 12 Rich. St. Rep. 122, 39 Atl. 830.
(S. C.) 88; Stockwell v. Fit/.- 17. Ante, § 366(c).
1340
Real. Peoperty.
[§ 367
Party walls. The grant of an easement to use
a wall for party wall purposes prima facie involves
the privilege of increasing the height of the wall in
order to erect a higher building, if this does not unduly
burden the wall, or in any way operate to the detri-
ment of the adjoining proprietor,^^ and subject to any
express restriction in the grant as to the height to
which the easement mav extend. ^^
18. Graves v. Smith. 87 Ala.
450, 13 Am. St. Rep. 60, 6 So.
304; Tate v. Fratt, 112 Cal. 613,
44 Pac. 1061; Bright v. Bacon &
Sons, 131 Ky. 848, 116 S. W. 386,
20 L. R. A. N. S. 386; Field v.
Leiter, 118 111. 17, 6 N. E. 877;
Everett v. Edwards, 149 Mass.
588, 5 L. R. A. 110, 14 Am. St.
Rep. 462, 22 N. E. 52; Dauen-
hauer v. Devine, 51 Tex. 480, 32
Am. Rep. 627.
That he can raise the wall to
the extent that it is on his own
land, see Andrae v. Haseltine, 58
Wis. 395, 46 Am. Rep. 635. That
he may raise a party wall al-
though it is entirely on the land
of the adjacent owner, see Tata
V. Fratt, 112 Cal. 613, 44 Pac.
1061; Dorsey v. Habersack, 84
Md. 117, 35 Atl. 96.
It has been held, in at least
one case, that, upon using the
addition to the wall, the other
proprietor is bound to contribute
tart of the cost. Sanders v.
Martin, 2 Lea. (Tenn.) 213, 31
Am. Rep. 598, And Citizens Fire
Ins. Co. V. Lockridge & Ridge-
way, 132 Ky. 1, 20 L. R. A. (N. S.)
226, 116 S. W. 303, contains a
dictum to that effect. Contra,
Allen V. Evans, 161 Mass. 485.
The assumption in Walker v.
Stetson, 162 Mass. 86, that he is
so bound, appears to be based
on the language of the original
agreement under which the wall
was constructed. The statute oc-
casionally provides that he shall
be so liable. Howell v. Goss, 128
Iowa, 569, 105 N W. 61; Younker
v. McCatchcn, 177 Iowa, 634, L.
R. A. 1917B, 949, 159 N. W. 441.
The grant of a right to insert
girders in a wall or to build
against the wall does not con-
fer party wall rights, so as to
entitle the grantee to raise the
wall. Moore v. Rayner, 58 Md.
411; Miller v. Stuart, 107 Md. 23,
68 Atl. 273.
19. Frowenfelf v. Casey, 139
CaL 421, 73 Pac. 152; Henne v.
Lankershim, 146 Cal. 70, 79 Pac.
853; Calmelet v. Sichl, 48 Neb.
505, 67 N. W. 467, 58 Am. St. Rep.
700; Fidelity Lodge v. Bond, 147
Ind. 437, 45 X. E. 338, 46 N. B.
825.
It appears to be the rule in
England that if the a'jjoining
owners are tenants in common or'
the wall, one of them cannot
raise the wall without the others
consent. Watson v. Gray, 12 Ch.
Div. 192. A contrary view is as-
§ 367] Easements. 1341
«
All additiou thus made to tlio wall by virtue of
one's right to use the wall as a party wall partakes of
the character of the ori2inal wall, as regards the right
of user thereof.^*^^ And the requirement which exists
in the case of the original wall, when placed on the
division line, that it contain no openings, such as
windows, ^^'^ applies as well to the addition placed upon
the wall.2o
It has been decided in one case that when a party
wall is erected one-half on each of the two adjoining
properties, one proprietor can extend his beams into
the waU only so far as the limits of his own land,-^ and
there are occasional intimations to this effect in other
cases.2- There cannot well be, however, any absolute
rule to this effect. A could no doubt grant to B in
express terms the privilege of extending his beams
entirely through the wall, and in any case the extent to
which beams can be inserted is a question of the con-
struction of the "party wall agreement," that is, of the
grant of the easement, in each particular case, the
usage of builders in that community being a weighty
consideration in this connection. If the wall is en-
tirely on the land of one proprietor, the adjoining pro-
prietor, having a party wall easement therein, has al-
most necessarily the i)rivilege of extending lieams in the
serted in Wallis v. First Nat. Iowa, 634, L. R. A. 1917B, 949.
Bank of Racine, 155 Wis. 305, 159 N. W. 441 (statute).
143 N. W. 670. 19b. I'o.^t, this section, note
19a. Graves v. Smith, 87 Ala.. 31.
450, 13 Am. St. Rep. 60; Allen v. 20. Graves v. Smith. 87 Ala.
Evans. 161 Mass. 485. See Field 450, 13 Am. St. Rep, 60, 6 So.
V Leiter, 118 111. 17. 304; Dauenhauer v. Devine, 51
For cases construing a contract Tex. 480, 32 Am. Rep. 627.
as requiring contribution to the 21. Lederer & Strauss v. Col-
cost of such an addition only for onial Investment Co.. 130 Iowa.
£. building subsequently erected, 157, 8 Ann. Cas. 317. lOfi X. W.
see Shaw v. Hitchcock, 119 Mass. 357.
254; Fox v. Mission Free School. 22. McMinn v. Karter, 116 Ala.
120 Mo. 349, 25 S. W. 172. And 390, 22 So. 17: Walker v. Stetson,
see Tounker v. McCutchen, 177 162 Mass. 86, 38 N. E. IS.
2 R. P.— 10
1342
Real Peopeety.
[§ 367
wall beyond the limits of his own land, and there is no
legal objection to his having that privilege when the
wall is ])artially on his own land.
One of the two adjoining owners cannot ordinarily
remove or impair the party wall,^^ except as such re-
moval or impairment is merely temporary and for the
'purpose of strengthening the wall or substituting there-
for another wall more suitable for his purposes.^^ Even
in the latter case he is liable for any damage caused
to the other by his failure properly to support and
protect the latter 's property during the operation,^^
or, if it is left to the other to protect his property, the
latter is entitled to be indemnified the necessary ex-
penses of such protection.^^ It does not seem that one
altering a party wall by raising it or otherwise is ab-
solutely liable for any injury which may result to the
other in the course of the work. He is merely bound
to use diligence to prevent such injury.^^
23. Nippert v. Warneke, 125
Cal. 501. 61 Pac. 270;
Montgomery v. Trustees of Ma-
sonic Han, 70 Ga. 38; Schile v.
Brokhahus. 80 N. Y. 619; Briggs
V. Klosse, 5 Ind. App. 129, 51 Am.
St. Rep. 238, 31 N. E. 208; Baugh-
er V. Wilkins, 16 Md. 35, 77 Am.
Dec. 279. But see Hieatt v. Mor-
ris. 10 Ohio St. 523, 78 Am. Dec.
280. Clemens v. Speed, 93 Ky.
284, 19 L. R. A. 240, 19 S. W.
660; WiUiamson Inv. Co. v. Wil-
liamson. 96 \\Tash. 529, 165 Pac.
385.
24. Eno V Del Vecchio, 4
Duer (N. Y.) 53, 6 Duer, 17;
Putzel V. Drovers & M. Nat. Bank,
78 Md. 349, 44 Am. St. Rep. 298,
22 L. R. A. 632, 28 Atl. 276; Lex-
ington Lodge V. Beal, 94 Miss. 521,
49 So. 833; Mann v. Riegler, 33
Ky. L. Rep. 774, 111 S. W. 300;
Bellenot v. Laube, 104 Va. 842, 52
S. E. 698. That he cannot sub-
stitute another wall, see Partridge
V. Lyon, 67 Hun, 29, 21 N. Y.
Supp. 848.
In some states the statute
authorizes him to make alter-
ations in the wall for his own
purposes. Fowler v Saks, 7
Mackey (D. C.) 570, 7 L. R. A.
649; Haine v. ;Merrick, 41 La.
Ann. 194. Evans v. Jayne, 23 Pa.
34.
25. Eno V. Del Vecchio, 4
Duer (N. Y.) 53, 6 Duer. 17.
26. Putzel V. Drovers & M.
Nat. Bank, 78 M'd. 349, 44 Am. St.
Rep. 298, 22 L. R. A. 632, 28 Atl.
276.
27. Negus V. Becker, 143 N. \^
303, 25 L. R. A. 667, 42 Am. St.
Rep. 68, 38 N. E. 290, explaining
Brooks V. Curtis, 50 N. Y. 639,
§ 3G7] Easements. 1343
If the wall is in a ruinous or unsafe condition, one
proprietor may repair it or replace it by a new wall,
and he is not liable for the cost of protecting the ad-
joining property during the prosecution of the work,
or for any loss necessarily incident thereto, as of
business or rent,-^ though he is liable for any injury
caused by negligence in the doing of the work.-^
There is at least one. decision to the effect that, if
the party wall becomes unsafe or ruinous, it may be re-
built by one of the adjoining owners, and the other will
be compelled to pay part of the cost,-^^
A grant of the privilege of placing on the grantor's
land a wall to be used as a party wall does not
ordinarily enable the grantee to place thereon a wall
with openings, such as windows, therein, the expression
party wall meaning prima facie a solid wall.^^ A right
to have openings in the wall may, however, be in-
cluded in the grant,^^ or rather, as the owner of the
land may grant the privilege of placing or maintaining
10 Am. Rep. 545; Lexington. Lodge 401; Bellenot v. Laube's Ex'r, 104
V. Beal, 94 Miss. 521, 49 So. 833. Va. 842, 52 S. E. 698; Sanders
See Putzel v. Drovers & M. Nat. v. Martin, 2 Lea (Tenn.) 213.
Bank, 78 Md. 349, 44 Am. St. Rep. 31. Bartley v. Spaulding, 21
298, 22 L. R. A. 632, 28 Atl. 275, Dist. Col. 47; Kuh v. O'Reilly, 261
and Heine v. Merrick, 41 La. Ann. 111. 437, 104 N. E. 5; Bonney v.
194, 5 So. 760, 6 So. 637. Compare Greenwood, 96 Me. 335, 52 Atl.
Fleming v. Cohen, 186 Mass. 323, 786; Coggins & Owens v. Carey,
104 Am. St. Rep. 572, 71 N. E. 106 Md. 204, 10 L. R. A. (N. S.)
563. 1191, 124 Am. St. Rep. 468, 66
28. Partridge V. Gilbert, 15 N. Atl. 673; Norraille v. Gill, 159
Y. 601, 69 Am. Dec. 632; Maypole Mass. 427, 38 Am. St. Rep. 441,
V. Forsyth, 44 111. App. 494; Craw- 34 N. E. 94; Harber v. Evans, 101
Shaw V. Sumner, 56 Mo. 517; Hoff- Mo. 661, 10 L. R. A. 41, 20 Am.
man v. Kuhn, 57 Miss. 746, 34 Am. St. Rep. 646, 14 S. W. 750; De
Rep. 491. Baun v. Moore, 167 N. Y. 598, 60
29. Negus V. Becker, 143 N. Y N. E. 1110; Cutting v. Stokes, 72
303; Crawshaw v. Sumner, 56 Mo. Hun. (N. Y.) 376, 25 N. Y. Supp.
517. 365; Holden v. Tidwell, 37 OkU.
30. Campbell v. Mesnr, 4 553, 133 Pac. 54. Dauenhauer v.
Johns. Ch. (N. Y.) 334. See How/e Devine, 51 Tex. 480, 32 Am. Rep.
v. Whitehead, 93 Miss. 578, 46 So. 627.
1344 Eeal Pkoperty. [§ 368
a solid wall on Ms land, so be may grant the privilege
of placing or maintaining thereon a wall with open-
ings.^^ It has been said that the right to have openings
in a partition wall may be acquired by prescription,^^
but this appears to be questionable.^^
The grant of the j)rivilege of jjlacing or maintain-
ing a wall in part on one's land may expressly include
a right to have flues therein.^^ Or there may be an
implied grant of such a right based on the existence of
the flues before the severance of ownership of the two
properties."' Whether the grant of the privilege of
erecting a wall, or of utilizing it, for party wall pur-
poses, involves a right to maintain flues therein, is a
question of construction, in the solution of which the
practice of builders in that community as regards the
placing of flues in party walls is entitled to considera-
tion.^^
§ 368. Easements created by prescription. In the
case of prescriptive easements, the mode and extent
of user of the servient tenement permissible are
determined, generally speaking, by the mode and extent
32. Grimley v. Davidson, 13?> 37. Ingals v. Plamandon, 75
111. 116, 24 N. E. 439; Weigmann 111. 118; De Baun v. Moore, 167
V. Jones, 163 Pa. 330, 30 Atl. 198; X. Y. 598, 60 N. E. 1110.
Reynolds v. Union Sav. Bank, 155 In Koolbeck v. Baaighn, 126
Iowa, 519, 136 N. W. 529. Iowa, 194, it was held that in.
33. Lengyel v. Meyer, 70 N. J. view of a statutory provision that
Eq. 501, 62 Atl. 548; Dunscomb the builder of the wall shall
V. Randolph, 107 Tenn. 89, 89 Am. insert flues at the request of
St. Rep. 915, 64 S. W. 21; Stein v. the other, such other, having failed
Bernsforj, 108 Minn. 177, 121 N. to make such request, cannot
W. 879. Hammann v. Jordan, 129 utilize flues placed in the wall by
N. Y. 61, 29 N. E. 294. the buil'der, though they extend
34. Graves v. Smith, 87 Ala. over the limits of his lot.
450, 5 L. R. A. 298, 13 Am. St. 38. See Hammann v. Jordan,
Rep. 60, 6 So. 308. 129 N. Y. 61, 29 N. E. 294; De
35. Post § 517. Baun v. Moore, 167 N. Y. 598, 60
36. Pier v. Salot, — (Iowa), N. E. 1110.
— , 107 N. W. 420.
§ 369] Easements. 1345
of the user during the prescriptive periocl.^*^ Accord-
ingly a prescriptive right to divert or pollute water
enables one to divert or pollute it to the extent to which
the diversion or pollution extended during such peri-
od,^ ^ and one having a prescriptive right to overflow
another's land can overflow it to the extent to w^hich he
was accustomed to overflow it during the prescriptive
period.^"* But a question of very considerable difficulty
may arise by reason of the assertion, by the person
entitled to the easement, of a right of user of the same
general character and extent as the prescriptive user,
but varying in some degree therefrom. This matter
is considered elsewhere in connection with the subject
of prescription.*"'^
§ 369. Effect of change in dominant tenement. The
fact that, after the making of a grant of an easement,
there is a change in the mode in which the dominant
tenement is utilized, so that as a result thereof the
easement is more constantly exercised, has usually
been regarded as not aifecting the existence of the
easement.*^ Occasionally, however, a different view
39. Wright v. Moore, 38 Ala. lisle v. Cooper, 21 N. J. Eq. 576;
593, 82 Am. Dec. 731; Postle- Gilford v. WMnnipiseogee Lake
thwaite v. Payne, 8 Ind. 104; Bar- Co., 52 N. H. 262; Tucker v.
ry V. Edlavitch, 84 Md. 95, 33 L. Salem Flouring Mills Co., 13 Ore.
R. A. 294, 35 Atl. 170; Prentice v. 28, 7 Pa-o. 53. Sabine v. Johnson,
Geiger, 74 N. Y. 341; Lewis v. 35 Wis. 185.
New York etc. R. Co., 162 N. Y. 40b. Post, § 531.
202, 56 N. B. 540. Elliott v. Rhett, 41. Greist v. Amrhyn, 80 Conn.
5 Rich. L. (S. C.) 405, 57 Am. 280, 68 Atl. 521 (sr'm?>Zf) ; Randall
Dec. 750; Arbuckle v. Ward, 29 v. Grant, 210 Mass. 302, 96 N. E.
Vt. 43. 672; Parsons v. New York N. H. &
40. Crossley v. Lightowler, 2 H. R. Co., 216 Mass. 269. 103 N.
Ch. App. 478; McCallum v. Ger- E. 693; Abbott v. Butler, 59 N. H.
mantown Water Co., 54 Pa. St. 317; Kretz v. Fireproof Storage
40, 93 Am. Dec. 656; Middlesex Co., 127 Minn. 304, 149 N. W. 648:
Co. V. City of Lowell, 149 Mass. Gillespie v. Weinberg, 148 N. Y.
509, 21 N. E. 872. 238, 42 N. E. 676, P'lint v. Bacon,
40a. Turner v. Hart, 71 Mich. 13 Hun. (N. Y.) 454; Benner v.
128, 15 Am. St. Rep. 243; Car- Junker, 190 Pa. 423, 43 Atl. 72;
1346
Eeal Pkoperty,
[§ 369
was adopted in the particular case,^^ It is, properly
speaking, a question of the construction of the grant,
tliat is, of whether the parties thereto intended that
the easement should ]>e exercised irrespective of a
change in the user of the dominant tenement, and, by
the weight of authority, the presumption appears to be,
as above indicated, that such was the intention. The
increase of the burden on the servient tenement is, it
would seem, immaterial, except as it may render it
less probable that such a change of user was within the
contemplation of the parties at the time of the grant.
In accordance with the view ordinarily taken, that
a change in the mode of utilizing the dominant tene-
ment does not affect the existence of the easement, is
the view generally adopted, that upon the subsequent
subdivision of the original dominant tenement, a right
of way is appurtenant to each and every part.^^ And
Frazier v. Berry, 4 R. I. 440;
United Land Company v. Great
Eastern. Railway Co., L. R. 10 C'n.
586; Newcomen v. Coulson, L. R.
5 Ch. Div. 133; Finch v. Great
Western R. Co., L. R. 5 Ex. D.
254; White v. Grand Hotel, Eiast-
bourne, Limited (1913) 1 Ch. 113.
42. It was held that, where
there was a grant of a way to a
loft, and the space or opening
under the loft then used as a
wood house, the way no longer
existed after the open space hari
been built over and changed into
a dwelling house. Allan v. Gom-
me, 11 Adol. & E. 759. This de-
cision was, however, questioned
by Parke, B., in Henning v. Bur-
net, 8 Exch. 187.
In Wood V. Saunders, 10 Ch.
App. 582, it was held that one
to whom was granted a right of
drainage through adjacent land
for the benefit of land on which
was a private residence at the
time of the grant could not ex-
ercise the right for the benefit
of large additions made to the
house for the purpose of changing
it into a sanitarium. See also
Great Western Railway v. Talbot
(1902) 2 Ch. 759.
In Goodwillie v. Commonwealth
Electric Co., 241 111. 42, 89 X. E.
272, it was held that the grant
of a right to use a switch track,
in favor of owners of a lumber
yard, did not justify the use of
the track for carrying coal to an
electric plant thereafter con-
structed on the site of the lumber
yard.
43. Currier v. Howes, 103 Cal.
431, 37 Pac. 521; Sweeney v. Lan-
ders Frary & Clark, 80 Conn. 575,
69 Atl. 566; Durkee v. Jones, 27
Colo. 159, 60 Paa 618; Brossart
^ 369]
Easements.
1347
the same rule has been applied in connection with an
easement of another character.^^
An easement of necessity has been regarded as not
limited, as regards its utilization, by the mode in which
the dominant tenement was used at the time of the
creation of the right, but as available for any use
incident to a change in the use of such tenement.^ ^
And accordingly a way of necessity has been regarded
as available to each one of various grantees of a part
of the tenement to which the way was originally ap-
purtenant.^^
In the case of a prescriptive easement, the question
whether a change in the dominant tenement atfects
the right to exercise the easement depends, in a general
way, upon whether the effect of the change is materially
to increase the burden upon the ser^dent tenement or
alter the character of the user thereof.'*''^
V. Corlett, 27 Iowa, 288; Garrison
V. Ru'^d, 19 111. 559; Underwood v.
Carney, 1 Cush. (Mass.) 285; Dur-
kin V. Cobleigh, 156 Mass. 108,
17 L. R. A. 270, 32 Am. St. Rep.
436, 30 N. E. 474; Forbes v. Com-
monwealth, 172 Mass. 289, 52 N.
E. 511. Moore v. White, 159 Mich.
460, 124 N. W. 62; Dawson v. St.
Paul F. & M. Ins. Co., 15 Minn.
136. (Gil 102), 2 Am. Rep. 109;
Diocese of Trenton v. Toman, 74
N. J. Eq. 702, 70 Atl. 606 ; Lansing
V. Wiswwall, 5 Denio (N. Y.) 213.
Gunson v. Healy, 100 Pa. 42;
Ehret v. Gunn, 166 Pa. 384, 31
Atl. 200; Dee v. King, 77 Vt.
230, 68 L. R. A. 860. 59 Atl. 839;
Linkenhofer v. Grayhill, 80 Va.
835; Newcomen v. Coulson, L. R.
f. Ch. Div. 141. A different rule
"would force every person who
has a right of way to preserve
his property entire, in order to
preserve his passage." Tilgh-
man, C. J., in Watson v. Bioren,
1 S. & R. (Pa.) 227, 7 Am. Dec.
617.
44. Harris v. Drewe, 2 B. &
Ad. 164 (church pew) ; Blood
V. Millard, 172 Mass. 65, 51 N.
E. 527 (right to take water from
spring) ; Hills v. Miller, 3 Paige
(N. Y.) 254, 24 Am. ,Dec. 218
(right to have strip of land left
vacant).
45. Myers v. Dunn, 49 Conn.
71; Whitticr v. Winkley, 62 N. H.
3^8; Crotty v. New River & Poca-
hontas Coal Co., 72 W. Va. 68,
78 S. E. 233; Contra. Corporation
of London v. Riggs, L. B. 13, Ch.
Div. 798.
46. Erie R. Co. v. S. H. Klein-
man Realty Co., 92 Ohio St. 96,
110 N. E. 527.
46a. Post, § 531.
1M8 Real Peopeety. [§ 370
§ 370. Alterations and repairs. Tlie owner of the
easement may enter on the servient tenement and make
such changes therein as are necessary for the proper
exercise of the easement.^'^ Thus, one having a right
of way may prepare the land for its exercise, according
to the nature of the way, that is, according as it may
be a foot way, a horseway, or a way for all teams and
carriages.^^ And he may subsequently make alterations
in the servient tenement in so far as this may be neces-
sitated by a change of conditions for which he is not
responsible.^^ He cannot, however, make alterations in
the servient tenement, which are not necessary for the
exercise of the easement, even though they conduce to
tlie convenience of its exercise, if such alterations will
injuriously affect the servient tenement.^^
The o^\Tier of the easement may likewise enter on
the servient tenement in order to make any repairs
necessary to the exercise of the easement, and may
make use of the servient tenement for this purpose to a
reasonable extent ;^^ and he may even prevent the con-
47. Newcomen v. Coulson, 5 Y. 37, 7 L. R. A. 226, 16 Am. St.
Ch. Div. 133; Burris v. People's Rep. 800, 23 N. E. 442.
Ditch Co., 104 Cal. 248, 37 Pac. 49. Nichols v. Peck, 70 Conn.
922; White v. Eagle & Phenix 439, 40 L. R. A. 81, 66 Am. St.
Hotel Co., 68 N. H. 38, 34 Atl. Rep. 122, 39 Atl. 493; Pinlinson
€72; Freeman v. Sayre, 48 N. J. v. Porter, L. R. 10 Q. B. 188.
Law, 37; Herman v. Roberts, 119 50. Capers v. McKee, 1 Strob.
N. Y. 37, 7 L. R. A. 226, 16 Am. L. (S. Car.) 164; McMillen v.
St. Rep ;^00, 23 N. E. 442; Ham- Crouin, 13 Hun (N. Y.) 68; Knud-
mond V. Hammond, 258 Pa. 51, ion v. Frost, 56 Colo. 530, 139
■:01 Atl 855; Wallis v. First Nat. Pac. 533; Hotchkiss v. Young, 42
Bank of Racine, 155 Wis. 306, 143 Ore. 446, '71 Pac. 324; Redemp-
N. W. (570. torists v. Wenig, 79 Md. 348, 29
48. fjenhouse v. Christian, 1 Atl. 667; Draper v. Varnerin, 220
Tei-m. Rep. 560; Newcomen v. Mass. 67, 107 N. E. 350.
Coulsen, 5 Ch. Div. 133; Knudson 51. Pomfret v. Ricroft, 1 Wms.
V. Frost, 56 Colo. 530, 139 Pac. Saund. 323, note 6; Pico v. Coli-
533; White v. Eagle & Phenix nas, 32 Cal. 578; Lamott v.
Hotel Co., 68 N. H. 38, 34 Atl. Ewers, 106 Ind. 310, 55 Am. St.
672; Herman v. Roberts, 119 N. Rep. 746, 6 N. E. 636; Hammond
§ 370]
Easements.
1349
struction of a building necessary to the beneficial use of
the land, if the building would prevent the making of
repairs.^^
In the absence of an express stipulation or prescrip-
tive obligation to that effect, there is no requirement
that the owner of the servient tenement put or keep
it in proper condition for the exercise of the easement,
though he must not actively obstruct its exercise.^'' So
the fact that the owner of a building has a right of
support from an adjoining building does not entitle
him to demand that the owner of the latter keep it in
repair so as to furnish sufficient support,^^ nor can the
owner of an upper floor compel the repair of the lower
floor bv the owner thereof.^^
V. Woodman, 41 Me. 177, 66 Am.
Dec. 219; Prescott v. White, 21
Pick. (Mass.) 341 ; Brown v.
Stone, 10 Gray (Mass.) 61, 69 Am.
Dec. 303; McMillan v. Cronin, 75
N. Y. 474; Thompson v. Uglow,
4 Ore. 369; Walker v. Pierce, 38
Vt. 94.
In Kepler v. Border, 179 Iowa,
218, 161 N. W. 302, where sev-
eral different persons had the
right to use a private road, the
court made an order apportioning
the cost of repairs as between
them.
52. Goodhart v. Kyeit, 25 Ch.
Dlv. 182.
53. Nichols v. Peck, 70 Conn.
439, 40 L. R. A. 81, 66 Am. St.
Rep. 122, 39 Atl. 493; Hastings
V. Chicago, R. I. & P. R. Co., 148
Iowa, 390, 126 N. W. 786; Brid-
v.'ell V. Neltner, 173 Ky. 847, 191
S. W. 633; Gillis v. Nelson, 16 La.
Ann. 275; Ballard v. Butler, 30
Me. 94; Rowe v. Nally, 81 Md.
367, 32 Atl. 198; Doane v. Bad-
ger, 12 Mass. 65; Harvey v.
Crane, 85 Mich. 316, 12 L. R. A.
601, 48 N. W. 582; Wynkoop v.
Burger, 12 Johns. (N. Y.) 222:
Herman v. Roberts, 119 N. Y. 371:
7 L. R. A. 226, 16 Am. St. Rep.
SCO, 23 N. E. 442.
So he is under no obligation
to fence off a way to which his
land is subject. Brill v. Brill, 108
N. Y. 511, 15 N. E. 538; Wiley
v. Ball, 72 W. Va. 685, 79 S. E.
659, and in the case of a ditch
for the supply of drinking water,
it is not prima facie for the
owner of the servient tenement
to fence off the ditch so that the
water will not be polluted by
his cattle. Bellevue v. Daly, 14
Idaho, 545, 15 L. R. A. (N. S.)
992, 94 Pac. 103^. And see Mc-
Coy V. Chicago, M. & St. P. R.
Co., 176 Iowa, 139, 155 N. W.
995.
54. Pierce v. Dyer, 109 Mass.
374, 12 Am. Rep. 716.
55. Tenant v. Goldwin, 1 Salk.
360, 2 Ld. Raym. 1089; Colebeck
v. Girdlers Co., 1 Q. B. Div. 234;
1350 Real Property. [§ 370
That one has party wall rights in a wall or a part
of a wall imposes no obligation on him, or on the owner
of the wall, to reconstruct it when destroyed by fire or
other accidental cause. "^^^ And it would seem question-
able, on principle, whether one person entitled to use
a party wall should have contribution from the other
on account of expenditures for repairs, additions or
reconstruction, undertaken by the former for his own
benefit, though enuring to the benefit of the latter.^-^''
The question of the liability for damage caused
by the failure to repair or j^roperly to construct an
appliance or structure on the servient tenement, the
purpose of which is to make the exercise of the easement
feasible or convenient, would seem ordinarily to de-
pend on who is in control thereof. If the owner of the
dominant tenement, for instance, constructs a con-
duit or ditch on the servient tenement of which he
retains control, he is liable, it would seem, if, by reason
of failure to keep it in repair, the servient tenement isi
flooded,^*^ and so it has been held that he is liable if
damage accrues to cattle belonging to the owner of
the servient tenement by reason of failure to protect
them from the danger of falling into a ''washout" oc-
curring in a ditch constructed by him.^^ On the other
Pierce v. Dyer, 109 Mass. 374, 12 55b. But that there is a right
Am. Rep. 716; Jackson v. Bruns, of contribution. Howze v. White-
129 Iowa, 616, 3 L. R. A. (N. S.) head, 93 Miss. 578, 46 So. 401;
510, 106 N. W. 1; Gale, Ease- Campbell v. Mesier, 4 Johns. Ch.
ments (9th Ed.) 479. But see 334; Sanders v. Martin, 2 Lea
dictum in Graves v, Berdan. 26 (Tenn.) 213. Contr<i, Anti-
N. Y. 498. marchi's Exc'r v. Rugsell, 63 Ala.
55a. Antomarchi's Ex'r v. 356, 35 Am. Rep. 40. See cita-
Russell, 63 Ala. 356, 35 Am. Rep. tions, ante, § 356, notes 64-66.
40; Partridge v. Gilbert, 15 N. 56. Egremont v. Pulman, M.
Y. 601, 69 Am. Dec. 632; Odd & M. 404. See Williams v. Grou-
Fellows' Hall Ass'n v. Hegele, cott, 4 Best & S. 199; Jones v.
24 Ore. 16, 32 Pac. 679; Duncan Fritchard (1908), 1 Ch, 630.
V. Rodecker, 90 Wis. 1, 62 N. W. 57. Big Goose and Beaver
533. Ditch Co. v. Morrow, 8 Wyo. 547,
§ 371] Easements. 1351 '
hand, it is well recognized that while the tenant of a
room in an office building has an easement in the halls
and elevators for the purpose of access to his room, the
owner of the building, as having control of the halls
and elevators, is the one liable for injuries caused by
defects therein.^^ And one whose land is crossed by a
railroad right of way is not liable for personal injuries
caused to another by reason of defective railway equip-
ment or negligent management thereof.^^'^
§ 371. Interference with user. Any act which inr
terferes with the proper exercise of the easement,
whether done by the o^vner of the servient tenement, or
by a third person, is a ''disturbance" or ''obstruction"
of the easement, for which an action will lie. A dis-
turbance of the easement is usually by the owner of the
servient tenement, and not by a third person, and what
constitutes a disturbance by him may be best defined
by stating what acts he may do without being guilty of
a disturbance.
The owner of the servient tenement may make any
use thereof, which is not calculated to interfere with
the exercise of the easement.^^ Accordingly, it has been
held that one whose land is subject to an easement of
flowage in favor of another may take ice formed on the
water,^^^ unless this would interfere with the purpose
80 Am. St. Rep. 955, 59 Pac. 159. N. W. 582; Pomeroy v. Salt Co..
58. See 1 Tiffany, Landlord & 37 Ohio St. 520; Smith v. Row-
Ten., §§ 89, 90. land, 243 Pa. 306, 90 Atl. 183:
58a. Earley v. Hall, 89 Conn. Abney v. Twombly, 39 R. I. 304,
GOG, 95 Atl. 2. 97 Atl. 806; Southern Railway
59. Long V. Gill, 80 Ala. 408: Co. v. Beaudrot, 63 S. C. 266, 41
Rice V. Ford (Ky.), 120 S. W. S. E. 299; Rex v. Joliffe, 2 Term.
288; Kansas Cent. R. Co. v. Allen, Rep. 95.
22 Kan. 285, 31 Am. Rep. 190; 59a. Stevens v. Kelley, 78 Me.
Chandler v. Goodridge, 23 Me. 78; 445, 57 Am. Rep. 913, 6 Atl. 868;
Kendall v. Hardy, 208 Mass. 20, Paine v. Woods, 108 Mass. 160;
94 N. E. 254; Harvey v. Crane, Eidemuller Ice Co. v. Guthrie, 42
85 Mich. 316, 12 L. R. A. 601, 48 Neb. 238, 28 L. R. A. 581, 60 N.
1352
BiiAL Property.
[§ 371
for which the right of tiowage was created.^^'' And one
whose land is subject to a right of way may take profits,
such as herbage or minerals, from the ground on which
the way is located,^^ and may even plough the ground,
it has been said, pro\ided this does not unreasonably
interfere with the exercise of the easement.*^^ He can-
not pasture stock on the ground on which the way is
located, especially if this is a source of danger to per-
sons using the way.^^
The o^^Tier of the servient tenement may, it seems,
at his own expense, make changes in connection with
the appliances placed thereon for the purpose of ex-
ercising the easement, in so far as such changes in no
way interfere wath the exercise of the easement, he
being entitled, except in so far as the exercise of the
easement is concerned, to have his land in condition
satisfactory to himself.^^^
The owner of land subject to a right of way may
himself use the same way,*'^ provided this does not
W. 717; Valentino v. Schantz, 216^
N. Y. 1, L. R. A. 1916B, 1044, Ann.
Cas. 1917C, 780, 109 N. E. 866;
Searle v. Gardner, 13 Atl. 835
(Pa.)
59b. Howe v. Andrews, 62
Conn. 398, 26 Atl. 394; Stevens
V. Kelley, 78 Me. 445, 57 Am. Rep.
813, 6 Atl. 868; Bigelow v. Shaw,
65 Micli. 341, 8 Am. St. Rep. 902,
32 N. W. 800; Dodge v. Berry, 26
Hun (N. Y.) 246.
60. Smith v. Langewald, 140
Mass. 205, 4 N. E. 571; Cleveland,
C. C. & St. L. R. Co. V. Simp-
son, 182 Ind. 693, 104 N. E. 301;
Greenmount Cemetery Go's Ap-
peal, 4 Atl. 528 (Pa.)
61. Moffitt V. Lj^le, 165 Pa.
173, 30 Atl. 922.
62. Espencheid v. Bauer, 235
111. 172, 85 N. E. 230.
He cannot enclose a part of
the land on which a railroad
right of way is located, under
claim of exclusive right. South-
ern R. Co. V. Beaudrot, 63 S. C.
266, 41 iS. E. 299. But he has, it
has been decided, the right to ri
private crossing over the right
of v/ay if this does not unreason-
ably interfere with the use of the
right of way for railroad pur-
poses. Cincinnati, H. & D. Co.
V. Wachter, 70 Ohio St. 113, 70 N.
E. 974.
62a. See Olcott v. Thompson,
59 N. H. 154, 47 Am. Rep. 184.
63. Rice v. Ford (Ky.), 120 S.
W. 288; Teachout v. Capital
Lodge, 128 Iowa, 380, 104 N. W.
440 (stairway) ; Morgan v. Boyes.
65 Me. 124; Kretz v. Fireproof
Storage Co., 127 Minn. 304, 149
§ 371]
Easements.
135:
iinreasonabh^ interfere with the exercise of the other's
easement.''^ And he may also grant to another or
others a similar right of way/^^ subject to the same
proviso,*'^ and provided, further, the prior grant was
not intended to be exclusive.^'''
The owner of a right of way in a city cannot ordi-
narily demand that the space over the way be absolutely
free from projections above the way, such as bay win-
dows, at such a height as not to interfere with the
right of passage,^ ^ and the owner of the servient tene-
ment may even place an arch over, or otherwise span,
the line of the right of way, and erect a building thereon,
provided the building is not so near the ground as
unreasonably to interfere with the user of the way,*''^
and, pro^dded further, the language of the grant, con-
strued wdth reference to the surrounding circumstances,
N. W. 648; Campbell v. Kuhlraan,
38 Mo. App 628; Goss v. Calhane,
113 Mass. 423; Smith v. Row-
land, 243 Pa. 306, 90 Atl. 183.
64. Herman v. Roberts, 119 N.
Y. 37, 7 L. R. A. 226, 16 Am. St.
Rep. 800, 23 N. E. 442, where the
owner of the servient tenement
injured the roadway prepared by
the owner of the dominant tene-
ment, by hauling heavy loads
thereover.
65. Morgan v. Boyes, 65 Me.
124; Smith v. Rowland, 243 Pa.
306, 90 Atl. 183. See Morton v.
Thompson, 69 Atl. 432, 38 Atl.
S8.
66. Greene v. Canny, 137 Mass.
64; Jarman v. Freeman, 78 N. J.
Eq. 464, 79 Atl. 1065, 83 Atl.
S72.
67. Greene v. Canny, 137
Mass. 64; Thompson v. Germania
Life Ins. Co., 97 Minn. 89. 106 N.
W. 102.
68. Bittello v. Lipson, 80 Conn.
497, 69 Atl. 21; Burnham v.
Kevins, 144 Mass. 88, 59 Am. Rep.
61, 10 N. E. 494. But see
Schmoele v. Betz, 212 Pa. 41, 108
Am. St. Rep. 845, 61 Atl. 525.
69. Atkins v. Bordman, 2 Mete.
(Mass.) 457, 37 Am. Dec. 100;
Lipsky V. Heller, 199 Mass. 310,
85 N. E. 310; Duncan v. Gold-
thwait, 216 Mass. 402, 103 N. E.
701; Sutton v. Groll, 42 N. J. Eq.
213, 15 L. R. A. 487; Hollins v.
Demorest, 129 N. Y. 15 L. R.
A. 487, 29 N. E. 1093; Grafton
V. Moir, 130 N. Y. 465, 27 Am. St.
St. Rep. 533, 29 N. E. 974; An-
drews v. Cohen, 221 N. Y. 148, 116
N. E. 862; Duross v. Singer, 224
Pa. 573, 73 Atl. 951; Stevenson
v. Stewart, 7 Phil. (Pa.) 293.
1354
Keal, Pboperty.
[§ 371
does not indicate an intention that nothing shall he
erected thereover J <*
— — Gates over way. The cases are generally to
the effect that, in the absence of language or circum-
stances calling for a different construction of the
grant or reservation of a right of way, the owner of
the servient tenement is entitled to maintain a fence
■with a gate therein, at either end of the way, that is,
at the point where the servient tenement abuts upon
a highway or upon another's property,"^ and he may
even be justified in placing, instead of a gate, remov-
70. For cases in which the
terms and circumstances of the
grant of the way were regarded
as such as to preclude any erec-
tions over the way, at any height
from the ground, see Schwoerer
V. Boylston Market Ass'n, 99
Mass. 285; Brooks v. Reynolds,
106 Mass. 31; Attorney General
V. Williams, 140 Mass. 329, 54 Am.
Rep. 468; Crocker v. Cotting, 181
Mass. 146, 63 N. E. 402; Frost v.
Jacobs, 204 Mass. 1, 90 N. E.
357; Goodwin v. Bragaw, 87 Conn.
31, 86 Atl. 668.
71. Green v. Goff, 153 111. 534,
29 N. E. 975; Phillips v. Dress-
ier, 122 Ind. 414, 17 Am. St. Rep.
575, 24 N. E. 226; Boyd v. Bloom,
152 Ind. 152, 52 N. E. 751 (al-
though use of way to be "free
and unincumbered) ; Berg v.
Neal, 40 Ind. App. 575, 82 N. E.
802; Maxwell v. McAfee, 9 B.
Mon. (Ky.) 20, 48 Am. Dec. 409;
Ames V. Shaw, 82 Me. 379, 19 Atl.
856; Baker v. Frick, 45 Md. 337,
24 Am. Rep. 506; Short v. De-
vine, 146 Mass. 119, 15 N. E. 148;
Gibbons v. Ebding, 70 Ohio St.
298, 101 Am. St. Rep. 900, 71 N.
E. 720; Connery v. Brooke, 73
Pa. 80; Watson v. Coke, 73 S.
Car. 36, 53 S. E. 537; Utah-Idaho
Sugar Co. v. Stevenson, 34 Utah,
184, 97 Pac. 26; Whaley v. Jar-
rett, 69 Wis. 613, 2 Am. St. Rep.
764; Collins v. Degler, 74 W. Va.
455, 82 S. E. 265 (though grant
of "free right of way") ; Mitchell
V. Bowman, 74 W. Va. 498, 82 S. E.
330.
That a gate was there at the
time of the grant is obvious-
ly a circumstance tending to
strengthen the presumption that
it was contemplated by the par-
ties that a gate might thereafter
be maintained. Truax v. Greg-
ory, 196 111. 83, 63 N. E. 674; Gar-
land V. Furber, 47 N. H. 304.
Conversely, the fact that the land
had for a long time been used
for purposes of passage without
any gates having been erected
tends to show that no right to
erect gates was contemplated.
See Raisor v. Lyons, 172 Ky. 314,
f89 S. W. 234; Welch v. Wilcox,
101 Mass. 162, 100 Am. Dec. 113;
§ 371] Easements. 1355
able bars at the termini of the way on tlie landJ^ It
is readily conceivable, indeed, that he might have a
right to maintain a fence at the terminns of a footway,
with merely steps to aid in climbing the fence. On the
other hand, if the grant or reservation, construed with
reference to the surrounding circumstances, shows an in-
tention that no fence or gate shall be erected, such a
showing of intention is controlling.^^
In the absence of any express language bearing
upon the question of the right in this regard, the
courts ordinarily treat it as a question of fact whether
gates or bars will unreasonably interfere with the
exercise of the easement of passage.'^ Even though
the owner of the servient tenement would not other-
wise have the right to place a gate or bars across the
way, he may acquire the right by reason of his main-
tenance of the gate or bars for the prescriptive period.'^^
The courts have but rarely considered the question
of the right of the owner of the servient tenement to
maintain a fence with a gate therein, not at one or both
of the termini of the way, but across the way at a
point well within his own land,'^^ for the purpose of
dividing his land into different tracts, to be utilized for
Garland v. Furber, 47 N. H. 301; son v. Whiting, 141 Mass. 414
Newsora v. Newsom (Tenn. Ch.), (existing lane); Patton v. West-
56 S. W. 29. f.in Carolina Educational Co., 101
72. Bakeman v. Talbot, 31 N. N. C. 408, 8 S. E. 140 (reserva-
Y. 366, 88 Am. Dec. 275; Ball v. tion of "thirty three feet for a
Allen, 216 Mass. 469, 103 N. E. street").
928; Goodale v. Goodale, 107 Me. 74. See Baker v. Frick, 45 Md.
301, 78 Atl. 567; Jewell v. Cle- 337, 24 Am. Rep. 506; Jewell v.
ment, 69 N. H. 133, 39 Atl. 582. Clement, 69 N. H. 133, 39 Atl.
73. Mineral Springs Mfg. Co. 582; Brill v. Brill, 108 N. Y. 511,
V. McCarthy, 67 Conn. 279 (way 15 N. E. 538; Connery v. Brooke,
"to be unincumbered"); Devore 73 Pa. 80; Griffin v. Gilchrist, 29
V. Ellis, 62 Iowa, 505, 17 N. W. R. I. 200, 69 Atl. 683, and other
740 (fences along way) ; Goodale cases cited, aiite, notes 71-73.
v. Goodale, 107 Me. 301, 78 Atl. 75. Ball v. Allen, 21G Mass. 469.
567; Welch v, Wilcox, 101 Mass. 103 N. E. 928.
162, 100 Am. Dec. 113; Dicken-
1356 Real, Pboperty. [§ 371
different purposes. Inability thus to divide his land by
fences running across the line of the way might involve
a very considerable hardship, and it does not seem
that, in the ordinary case, the existence of a gate at
a point within his own land would involve inconvenience
to the person using the way to any greater extent than
would a gate located at his boundary. Whether he may
so erect a fence or fences across the line of the way
for the purpose of dividing his land, with a gate
therein at the point where the way strikes the fence,
would seem properly to he determined by the same
considerations as control in the case of a fence and gate
at the terminus of the way, with the additional con-
sideration, perhaps, of his bona fides in erecting the
fence.
In the case of a way based upon prescription, the
question of the right of the servient owner to maintain
a gate across the way has usually been regarded as a
matter to be determined by the consideration whether
such a gate was maintained during the prescriptive
period.'^''' In other cases, however, the view has been
adopted that the controlling consideration is whether
the gate would involve an unreasonable interference
with the exercise of the easement, having regard to the
nature thereof.'^ ^
76. In Short v. Devine, 146 88 Am. Dec. 275, and is stated
Mass. 119, 15 N. E. 148, the court in Bean v Coleman, 44 N. H. 539,
apparently regards the fact that and Dyer v. Walker, 99 Wis. 404,
the gate is "in the middle of" the 75 N. W. 79 (prescriptive way),
way, and not at the terminus 77. Hill v. Miller, 144 Ga. 404,
thereof, as a consideration ad- 87 S. E. 385; Frankhoner v. Cor-
verse to the right to maintain der, 127 Ind. 164, 26 N. E. 766;
it. Frazier v. Myers, 132 Ind. 71, 31
That there may be a right to N. E. 536. Miller v. Pettit, 127
maintain a fence and gate or Ky. 419, 105 S. W. 892; Shivers
bars for the purpose of dividing v. Shivers, 32 N. J. Eq. 578, af-
the servient tenement is appar- firmed 35 N. J. Eq. 562; Rogerson
ently assumed in Groodale v. Good- v. Shepherd, 33 W. Va. 307, 10
ale, 107 Me. 301, 78 Atl. 567; S. E. 632.
Bakeman v. Talbot, 31 N. Y. 366, 78. Ames v. Shaw, 82 Me. 179,
^ 371]
Easements.
1357
Occasionally one having a right of way over an-
other's land has been required to erect a gate or gates
at the border of the land, to prevent the escape or en-
trance of stock.'^'^ The imposition of such an active
duty uix)n the owner of the dominant tenement to pro-
tect the o^^^ler of the servient appears not to be gener-
ally recognized." ^^
If the owner of the ser\dent tenement has the right
to have a gate across the way, the owner of the ease-
ment is under an obligation to shut the gate when he
makes use of the way,'^ and a failure to do so, it ap-
pears, operates to make his user of the way wrongful,
constituting a trespass -on the sersaent tenement. ^^
Interference by third person. That A has an
easement in land does not justify him in interfering, by
the erection of structures or otherwise, ^rith the exer-
cise of an easement belonging to B in the same land,*^
except, it seems, when such interference is necessary
19 Atl. 856; Hartman v. Fick, 167
Pa. 18, 31 Atl. 342, 46 Am. St.
Rep. 658; Luster v. Garner, 128
Tenn. 160, 48 L. R. A. (N. S.)
87, Ann. Cas. 1914D, 769, 159 S.
W. 604; Mitchell v. Bowman, 74
W. Va. 498, 82 S. E. 330; Dyer
V. Walker, 99 Wis. 404, 75 N. W.
79. And see Evans v. Cook, 33
Ky. Law Rep. 788, 111 S. W. 326.
78a. Daniron v. Justice, 162
Ky. 101, 172 S. W. 120; Moore v.
White, 159 Mich. 460, 124 N. W.
62.
78b. That there is no such
duty, see Rowe v. Nally, 81 Md.
367. 32 Atl. 198.
79. Amondson v. Severson. 37
Iowa, 602; Truax v. Gregory, 196
111. 83, 63 N. E. 674; Brill v. Brill,
108 N. Y. 511, 15 N. E. 538; Dam-
ron V. Justice, 162 Ky. 101, 172
2 R. P.— 11
S. W. 120.
That the owner of the ease-
ment is bound only to the ex-
ercise of reasonable care to see
that the gates are kept closed.
See Rater v. Shuttlefield, 146
Iowa, 512, 44 L. R. A. (N. S.) 101.
125 X. W. 235.
80. See Garland v. Furber, 47
N. H. 301.
81. West Louisville & X. R.
Co., 155 Ala. 506, 46 So. 469;
Goodwin v. Bragaw, 87 Conn. 31,
86 Atl. 668; Murphy v. Marker,
115 Ga. 77, 41 S. E. 585; Killion
v. Kelly, 120 .Mass. 47; Freeman
V. Sayre, 48 N. J. L. 37, 2 Atl.
650; Ellis v. Academy of Muslo,
120 Pa. 608, 6 Am. St. Rep. 739,
15 Atl. 494; Allegheny Nat. Bank
v. Reighard, 204 Pa. 391, 54 Atl.
268.
1358
Eeal Pbopertt.
[§ 371
to the exercise of A's easement, and B's easement was
acquired mth notice, actual or constructive, of the
prior grant to A.
Remedy. An action for the disturbance or
obstruction of an easement shoukl, at common law, bo
in case."'- Ejectment does not lie,'"'^ nor trespass qiiare
clausum fregit.^^ There being an infringement of his
right, the owner of the easement is entitled to at least
nominal damages.^^
Notice to the owner of the servient tenement to
remove an obstruction which he has interposed to the
exercise of the easement is not necessary before bring-
ing an action on account of such obstruction,^*^ but if
the defendant, the owner of the servient tenement at
the time of suit, is not the original creator of the ob-
struction, and he has merely allowed an obstruction
created by a former owner to remain, a previous re-
82. Bale v. Todd, 123 Ga. 99,
50 S. E. 990; Martin v. Bliss,
5 Blackf. (Ind.) 35, 32 Am. Dec.
52; Shaffer v. Smith, 7 Har. & J.
(Md.) 67; Bowers v. Suffolk Mfg.
Co., 4 Cush. (Mass.) 332; Os-
borne V. Butcher, 26 N. J. Law
308; Shroder v. Brenneman, 23
Pa. St. 348.
83. Adams, Ejectment, c. 2;
Canton Co. v. City of Batimore,
106 Md. 69, 11 L. R. A. (N. S.)
129, 66 Atl. 671, 67 Atl. 274; Tay-
lor V. G-ladwia, 40 Mich. 232;
Brier v. State Exchange Bank, 225
Mo. 673, 125 S. W. 469; Roberts
V. Trujillo, 3 N. M. 87, 1 Pac.
855; Child v. Chappell, 9 N. Y.
246; Parker v. West Coast Pack-
ing Co., 17 Ore. 510, 5 L.. R. A.
61, 21 Pac. 822; Hancock v. Mc-
Avoy, 151 Pa. St. 460, 18 L. R. A.
781, 31 Am. St. Rep. 774, 25 Atl.
47; Pritsche v. Fritsche, 77 Wis.
270, 45 N. W. 1089; LeBlond v.
Town of Peshtigo, 140 Wis. 604,
25 L. R. A. (N. S.) 511, 123 N. W.
157.
84. Chitty, Pleading (7th Ed.)
147, 159; Shafer v. Smith, 7 Har.
& J. (Md.) 67; Morgan v. Boyes,
65 Me. 124; Wetmore v. Robin-
son, 2 Conn. 529; Osborne v.
Butcher, 26 N. J. L. 308.
85. Tuttle V. Walker, 46 Me.
280; Collins v. St. Peters, 65 Vt.
618, 27 Atl. 425; Dewire v. Han-
ley, 79 Conn. 454, 65 Atl. 573;
Harrop v. Hirst, L. R. 4 Exch.
43; Goddard, Easements (6th Ed.)
438.
86. Collins v. St. Peters, 65 Vt.
618, 27 Atl. 425. But the ease-
ment may Itself involve a neces-
sity of notice to the owner of
the servient tenement, that is, the
easement may be one to be ex-
ercised only after notice to such
§ 371]
Easements.
1359
quest to him to remove it is, it seems, necessary, unless,
at least, he already had notice of the easement and its
obstruction,^^ this according with the rules ordinarily
applicable to actions on account of the maintenance of
a nuisance. ^^
A tenant of land holding under a lease may bring an
action on account of the disturbance of an easement, he
being directly affected thereby.^^^ The reversioner may
also sue if the disturbance is of such a permanent
character or otherwise of such a nature that he can be
regarded as suffering damage therefrom.^^''
In view of the incorporeal character of a j)ew, the
remedy for interference, with the pew holder's right
would seem properly to be an action on the case.^® In
a number of cases in this country, however, it is held
that trespass quare clausum fregit or ejectment will
lie.9«
cw);er. See Phipps v. Johnson,
99 Mass. 26.
87. Hogan v. Barry, 143 Mass.
538, 10 N. E. 253; Elliott v.
Rhett, 5 Rich. (,S. C.) 405, 57 Am.
Dec. 750; Gale, Easements (8th
Ed.) 588.
88. See note to Leahan v.
Cochran, 86 Am. St. Rep. at p.
508, et seq.; 1 Tiffany, Landlords
Ten. p. 791.
88a. Gale, Easements (8th
Ed.), 582; Walker v. Clifford, 128
Ala. 67, 86 Am. St. Rep. 74, 29
So. 588; Hamilton v. Dennison,
56 Conn. 359. 1 L. R. A. 287, 15
Atl. 748; Greist v. Amryhn, 80
Conn. 280, 68 Atl. 521; Morrison
V. Chicago & N. W. R. Co., 117
Iowa, 587, 91 N. W. 793; Foley
V. Wyeth, 2 Allen (Mass.) 135;
Coleman v. Holden, 88 Miss. 798,
41 So. 374; Schmoele v. Betz, 212
Pa. 32, 108 Am. St. Rep. 845, 61
Atl. 525.
88b. See 2 Tiffany, Landlord &
Ten., § 353a.
89. See Stocks v. Booth, 1
Term R. 431; Bryan v. Wliistler,
8 Barn. & C. 294; Perrin v.
Granger, 33 Vt. 101; Trustees of
ihe Third Presbyterian Congrega-
tion V. Andruss, 21 N. J. Law, 325;
Daniel v. Wood, 1 Pick. (Mass.)
102, 11 Am. Dec. 151.
90. Jackson v. Rounseville, 5
Mete. (Mass.) 127; O'Hear v. De
Goesbriand, 33 Vt. 593, 80 Am.
Dec. 653; Howe v. Stevens, 47
Vt. 262; Shaw v. Beveridge, 3
Hill (N. Y.) 26, 38 Am. Dec. 616;
First Baptist Church v. Witherell,
3 Paige (N. Y.) 296, 24 Am. Dec.
223. These cases seem to be based
on the theory that a pew is "real
estate," and that these forms of
action always lie for "real es-
tate." On this theory, trespass
1360 Real Pkopeety. [^ 371
Injunction. Tlie question of the propriety of
the issuance of an injunction to restrain an interfer-
ence with an easement, especially of a right of way,
has been frequently the subject of litigation. An in-
junction for this purpose may assume a mandatory as
well as a prohibitory form, as w^hen, in the case of
the obstruction of the exercise of the easement by a
structure of a permanent or quasi permanent character,
the decree requires the removal of the structure.^^
In some of the reported cases, the court recognizes
the right to an injunction to restrain the obstruction of
an easement without the mention of any possible limita-
tions upon the right,^^ and in favor of such right, when
the obstruction is of a permanent or quasi permanent
character, is the consideration that otherwise the o^\mer
of the easement would be in effect compelled to sell
his right for a price equal to the amount of the
damages which he may recover on account of the
obstruction.^^ More usually, however, the courts recog-
Quare clausum fregit or eject- 454, 65 Atl. 573; Shedd v. Ameri-
ment would lie for any ease- can Maize Products Co., 60 Ind.
ment or right of profit, since they App. 146, 108 N. E. 610; Swisher
are all "real estate," except when v. Chicago & A. Rwy. Co., 235
the interest is merely for years. Mo. 430, 138 S. W. 505; Nash v.
91. See Stallard v. dishing, 76 New England Mut. Life Ins. Co.,
Cal. 472, 18 Pac. 427; Feitler v. J27 Mass. 91; Vinton v. Greene,
Dobbins, 263 111. 78, 104 N. E. 158 Mass. 426, 33 N. E. 607;.Agnew
1088; Robbins v. Archer, 147 v. Pawnee City, 79 Neb. 603, 113
Iowa, 743, 126 N. W. 936; Henry N. W. 236; Herman v. Roberts.
V. Koch, 80 Ky. 391, 44 Am. Rep. 119 N. Y. 37, 7 L. R. A. 226, 16
484; Schaidt v. Blaul, 66 Md. 141, Am. St. Rep. 800, 23 N. E. 442.
6 Atl. 669; Green v. Richmond, Nicholas v. Title & Trust Co.. 79
155 Mass. 188, 29 N. E. 770; Long- Ore. 226, Ann. Cas. 1917A, 1149,
ton V. Stedman, 182 Mich. 405, 154 Pac. 391; Bowers v. Myers,
148 N. W. 738; Dulce Realty Co. 237 Pa. St. 533, 85 Atl. 860; Kalin-
V. Staed Realty Co., 245 Mo. 417. owski v. Jacobowski, 52 Wash.
151 S. W. 415; Rogerson v. Shep- 359, 100 Pac. 852.
herd, 33 W. Va. 307, 10 S. E. 632. 93. See Tucknr v. Howard, 128
92. See McCann v. Day, 57 111. Mass. 361; Manbeck v. Jones, 190
100; Dewire v. Hanley, 79 Conn. Pa. St. 171, 42 Atl. 536. But the
§ 371]
Easements.
1361
nize some restrictions upon the right to an in-
junction for this purpose.^ ^*^ One such restriction is to
the effect that equity will not take jurisdiction if it
does not clearly appear that the easement actually ex-
ists in the applicant for the injunction, it being for a
court of law rather than for one of equity to deter-
mine the existence of an easement."^ It has in one case
been asserted that, in the case of a right of way, the
location of the way must clearly appear.^' It has like-
wise, been stated that the injury to be prevented must
be irreparable, or that an injunction will issue, pro-
vided the injury is of that character, '"^ and that the
threatened interference with the exercise of the ease-
fact that the injurj' can be com-
pensated in damages has been
referred to as a ground for re-
fusing an injunction. Green v.
Richmond, 155 Mass. 188; Berke-
ley V. Smith, 27 Gratt. (Va.)
892.
93a. See editorial note, 10 Co-
lumbia Law Rev. 355.
94. Oswald v. Wolf, 129 111.
200, 21 N. E. 839; Feitler v. Dob-
bins, 263 111. 78, 104 N. E. 1088;
Bennett v Seligman, 32 Mich. 500;
Hart V. Leonard, 42 N. J. Eq.
416, 7 Atl. 865; Todd v. Staats,
60 N. J. Eq. 507, 46 Atl. 645;
ITacke's Appeal, 101 Pa. 245; Sea-
board Air Line R. Co. v. Olive.
142 N. C. 257, 55 S. E. 263.
Conversely it is said that an
injunction may issue if the ex-
istence of the easement is not
doubtful. Espencheid v. Bauer,
235 111. 172, 85 X. E. 230; Ober-
heim v. Recside, 116 Md. 265, 81
Atl. 590; Imperial Realty Co. v.
West Jersey & S. R. Co., 78 N.
J. Eq. 110, 77 Atl. 1041; Manbeck
V. Jones, 190 Pa. 171, 42 Atl. 536;
Garvey v. Harbison-Walker Re-
fractories Co., 213 Pa. 177, 62 Atl.
778.
That the determination of the
existence and character of the
easement involves the construc-
tion of a written instrument does
not appear to be ground for re-
fusing relief in equity. Shreve
v. Mathis, 63 N. J. Eq. 170, 52
Atl. 234; Oberheim v. Reeside,
116 Md. 265, 81 Atl. 590.
95. Fox V. Pierce, 50 Mich. 500,
15 N. W. 880. But see Bright v.
Allan, 203 Pa. 386, 53 Atl. 248.
96. Murphey v. Harker, 115
Ga. 77, 41 S. E. 585; Oswald v.
Wolf, 129 III. 200, 21 N. E. 839;
Feitler v. Dobbins, 263 III. 78,
104 N. E. 1088; Henry v. Koch,
20 Ky. 391, 44 Am. Rep. 484; Jay
v. Michael, 92 Md. 198, 48 Atl.
61; West Arlington Land Co. of
Baltimore County v. Flannery, 115
Md. 274, 80 Atl. 965; Rogerson
V. Shepherd, 33 W. Va. 307, 10
S. E. 632.
1362 Real Pkoperty. [-§ 371
ment must be substantial.'^' Eeference is also occa-
sionally made to the permanent or continuous character
of the obstruction as a consideration in favor of grant-
ing such relief.^^ The fact that the plaintiff has not
yet suffered any damage by reason of the easement does
not appear to be conclusive against his right to an in-
junction.^^ Occasionally an injunction has been refused
on the ground that it would operate oppressively, the
owner of the easement being left to his remedy at
law/ or a decree being made for the ascertainment and
payment of damages. To some degree, as ordinarily in
connection with an application for an injunction, the
matter is within the discretion of the court, and it has
been said that one will not be required to remove an
obstruction of a merely partial character, if this would
bear upon him with undue severity,^ especially if the
owner of the easement has been guilty of laches in not
earlier seeking redress.^
Abatement. The person entitled to exercise an
easement may himself remove or "abate" a structure
or object which obstructs its exercise,^ provided, per-
97. Hagerty v. Lee, 45 N. J. 109 Pac. 87; Feitler v. Dobbins,
Eq. 1, 15 Atl. 399; Green v. Rich- 263 111. 78, 104 N. E. 1088; Swift
mond, 155 Mass. 188, 29 N. E. v. Coker, 83 Ga. 789, 20 Am. St.
770; Bentley v. Root, 19 R. I. Rep. 347, 10 S. E. 442; Swisher
205, 32 Atl. 918; Wilson v. Cohen, v. Chicago, & A. Ry. Co., 235 Mo.
Rice Eq. (S. Car.) 80. Compare 430, 138 S. W. 505.
Schmoele v. Betz( 212 Pa. 32, 1. McBryde v. Sayre, 86 Ala.
108 Am. St. Rep. 845, 61 Atl. 525. 458, 3 L. R. A. 861, 5 So. 791;
98. Danielson v. Sykes, 157 Hall v. Rood, 40 Mich. 46; Rich-
Cal. 686, 28 L. R. A. (N. S.) ard's Appeal, 57 Pa. St. 105.
1024, 109 Pac. 87; Russell v. 2. Berkeley v. Smith, 27 Gratt.
Napier, 80 Ga. 77, 4 S. E. 857; (Va.) 892.
Webber v. Gage, 39 N. H. 182; 3. Green v. Richmond, 155
Shreve v. Mathis, 63 N. J. Eq. Mass. 188, 29 N. E. 770: Bentley
170, 52 Atl. 234; Miller v. Lynch, v. Root, 19 R. I. 205.
149 Pa. 460, 24 Atl. 80. 4. Green v. Richmond, 155
99. Danielson v. Sykes, 157 Mass. 188, 29 N. E. 770.
Cal. 686, 28 L. R. A. (N. S.) 1024, 5. Quintard v. Bishop, 29 Conn.
<^ 372] Easements. 1363
haps, the circumstances are not such that the removal
may cause a breach of the peace.*^ If, however, the ob-
struction was created by a foiTuer owner of the land
and merely allowed by the subsequent owner to re-
main, its abatement by the owner of the easement is
justified, it seems, only after he has notified the owner
of the land to abate itJ And such notice appears to
be necessary even as against the original creator of the
obstruction, if the abatement involves a trespass upon
the latter 's land.^
IV. Extinction of Easements.
§ 372. Cessation of purpose -of easement. It has
been said that when an easement is created for a par-
ticular jDurpose, it comes to an end upon a cessation of
that purpose,^ which means, apparently, that an ease-
ment which is created to endure only so long as a
particular purpose is subserved by its exercise, comes
to an end when it can no longer subserve such purpose. ^<^
366; Sargent v. Hubbard, 102 8. Jones v. Williams, 11 Mees.
Mass. 380; Morgan v. Boyes, 65 & W. 176; Lemmon v. Webb
Me. 124; Joyce v. Conlin, 72 Wis. (1905), App. Cas. 1.
607, 40 N. W. 212. 9. National Guaranteed Manure
6. Schmidt v. Brown, 226 111. Co. v. Donald, 4 Hurlst. & N. 8;
590, 11 L. R. A. (N. S.) 457, 117 Long v. Louisville, 98 Ky. 67, 32
Am. St. Rep. 261. 80 N. E. 1071; s. W. 271; Chicago & N. W. Ry.
Keplinger v. Woolsey, 4 Neb. ,Co. v. Sioux City Stock-Yards
(unoff) 282, 93 N. W. 1008. Co., 176 Iowa, 659, 158 N. W.
But in Davies v. Williams, 16 769; Hahn v. Baker Lodge No,
Q. B. 546, the removal of a house, 47, 21 Ore. 30, 13 L. R. A. 158,
which was at the time inhabited, 28 Am. St. Rep. 723, 27 Pac. 166;
was regarded as justifiable, pro- Riefler & Sons v. Wayne Storage
vided notice to remove it had been Water Power Co., 232 Pa. 282, 81
previously given. Atl. 300.
7. O'Shaughnessy v. O'Rourke, That an appurtenant easement
36 Miss. 518, 73 N. Y. Supp. 1070. iy, not extinguished by an attempt
Applying the rule which exists to separate it from the dominant
in the ordinary case of a nui- tenement, see note in 20 Harv.
sance, as asserted in Penruddock's Law Rev. at p. 136.
Case, 5 Co. Rep. 101. 10. See Cotting v. Boston, 201
1364 Real Peoperty. [^ 372
Tlie question then is, in each case, what is the particular
purpose to be subserved by the easement, and this,
in the case of an easement created by grant, is a question
of intention. In the case of an easement created by
prescription, on the other hand, the question as to what
is the particular purpose to be subserved l)y the ease-
ment is i)resumably to be determined with reference
to the apparent purpose of the user during the pre-
scriptive period.
An easement to use a dock or waterway for vessels
has been regarded as coming to an end when, owing to
the construction of a street by the municipality, such
use of the dock or waterway became impossible.^^ And
an easement to be exercised for the benefit of a partic-
ular lot has been considered to cease when the lot
became permanently submerged by the waters of a
river,^^ or the lot was appropriated for a street. ''
Likewise, a right of approach to an upper room or floor
in a building was held to come to an end when the
building was destroyed. ^^ So, in the case of the grant
Mass. 97, 87 N. E. 205; Cotton India Wliarf, 123 Mass. 567.
States Lumber Co. v. James, 98 12. W9is v. Meyer, 55 Ark. 18,
Miss. 134, 53 So. 410; Bangs v. 17 S. W. 339.
Parker, 71 Me. 458; Hall v. Arm- 13. Hancock v. Wentworth, 5
strong, 53 Conn. 554, 4 Atl. 113; Mete. (Mass.) 446. See Brown v
In Johnson v. Knapp, 150 Mass. Ore. Short Line R. Co., 36 Utah,
267. 23 N. E. 40, it was held that, 257, 24 L. R. A. (N. S.) 86, 102
even though a pipe was actually Pac. 740.
used at the time of the sever- 14. Hahn v. Baker Lodge No.
ance of ownership for the pur- 47, 21 Ore. 30, 13 L. R. A. 158, 28
pose of conducting water, still. Am. St. Rep. 723, 27 Pac. 166;
if the supply of water was de- Cotting v. Boston, 201 Mass. 97,
pendent on the continuance of a 87 N. E. 205.
license to take it from other land. In Shirley v. Crabb, 138 Ind.
the easement which passed was 200, 46 Am. St. Rep. 376, 37 N.
to endure only so long as it E. 130, the extinguishment of
could be rightfully taken, that is. such an easement appears to be
until the license was revoked. based on the destruction of the
11. Mussey V. Union Wharf, 41 servient building, not the domi-
Me. 34; Central Wharf & Wet nant, though both were as a matter
Dock Corp. V. Proprietors of of fact destroyed. In Douglas v.
^ 372] Easements. 1365
of a right of way for a railroad, a reservation in favor
of the owner of the land of the privilege of a crossing,
by which to pass to other land belonging to him, was
construed as giving such crossing so long only as the
two pieces of land belonged to the same person.^^ In
these various cases the easement, being one created by
grant, came to an end, it is conceived, because it was
intended, or presumed to be intended, to come to an
end upon an event such as occurred, rather than as oc-
casionally suggested, because the impossibility of the
exercise of an easement, or the impossibility of its
exercise for the same purpose as before, necessarily in-
volves its extinguishment. That an easement may con-
tinue to exist even though its exercise is temporarily
impossible, is not open to question, and in the cases
above referred to, the impossibility of its continued ex-
ercise as before, while it threatened to be periiianent,
might, in the event, have proven to be temporary
merely.
The destruction of a building on the dominant tene-
ment will effect an extinguishment of the easement if
the easement was intended to be exercised only in
connection with that particular building,^" while it will
not have that effect if it was intended to l)e exei'cised
in connection with the land, independently of tlie ex-
istence thereon of a building, or of some particular
Coonley, 156 N. Y. 521, 51 N. E. 300.
283, the easement was held to 16. Day v. Walden, 46 Mich.
be suspended and revived. See 575, 10 N. W. 26; Blake v. Clark,
P'M, this section, notes 16, 17, 19- 6 Me. 436. Compare Stevenson
26a, 28, 29. v. Wallace, 27 Gratt. (Va.) 77.
15. Knowlton v. New York, N. 17. Hottell v. Farmers' Pro-
H. & H. R. Co., 72 Conn. 188, 44 tectivo Ass'n, 25 Colo. 67, 71 Am.
Atl. 8; Marino v. Central R. Co., St. Rep. 109, 53 Pac. 327; Rey-
69 N. J. L. 628, 56 Atl. 306; Van- nolds v. Union Savings Bank, ISo
dalia R. Co. v. Furnas, 182 Ind. Iowa, 519, 49 L. R. A. (N. S.) 194,
306, 106 N. E. 401. Compare j36 N. W. 529; Bangs v. Parker.
Rathbun v. New York, N. H. & 71 Me. 458; Chew v. Chew. 39 N.
H. R. Co., 20 R. I. GO, 37 Atl. J. Eq. 396; Hennen v. Deveny, 71
1366
Keal Propebty.
[§ 372
bnilding.^^ An easement of flowage for tlie benefit of
a canal has been held to come to an end when the
canal was abandoned. ^^
That an easement of a right of way, created by
a grant thereof in express terms, w^as at the time of
the grant necessary for the purpose of access to the
dominant tenement, has not been regarded as a reason
for holding the easement extinguished when the neces-
sity ceases, ^^^ the rule thus differing from that which
has been applied in connection with a right of way by
necessity/*^
Party wall. The easement of using a wall, or a
part thereof, belonging to another, as a party wall, has
been regarded as ceasing upon the destruction, by fire or
other accident, of the wall and of the buildings separated
thereby,^^ and also upon such destiniction of the buildings,
though the wall remains standing.^^^ In thus asserting
W. Va. 629, L. R. A. 1917A, 524,
77 S. E. 142. Accordingly it has
been decided that an easement
of light may continue in exist-
ence although the building by
which the light was availed of
is destroyed. Tapling v. Jones, 11
H. L. Cas. 290; Scott v. Pape, 31
Ch. Div. 554; City Nat. Bank v.
Van Meter, 59 N. J. Eq. 32, 45
Atl. 280, 61 N. J. Eq. 674, 47 Atl.
1131.
18. Riefler v. Wayne Storage
Water Power Co., 232 Pa. 282,
81 Atl. 300.
18a. Johnson v. Allen, 33 Ky.
Law Rep. 621, 110 S. W. 851;
Estep V. Hammons, 104 Ky. 144,
46 S. W. 715, (semble) ; Atlanta
Mills V. Mason, 120 Mass. 244;
Perth Amboy Terra Cotta Co. \.
Ryan, 68 N. J. L. 474, 53 Atl.
699; Crounse v. Wemple, 29 N.
Y. 540 (prescriptive way) ; Par-
sons V. N. Y., X. H. & H. R.
Co., 216 Mass. 269, 103 N. E. 693;
Zell V. Universalist Soc, 119 Pa.
390, 4 Am. St. Rep. 654, 13 Atl.
447, Ebert v. Mishler, 234 Pa.
609, 83 Atl. 596.
18b. Post, this section, notes
27-29.
19. Sherred v. Cisco, 4 Sandf.
(N. Y.) 480; Partridge v. Gilbert,
15 N. Y. 601, 69 Am. Dec. 632;
Antomarchi's Ex'r v. Russell, 63
Ala. 356, 35 Am. Rep. 40; Dun-
can, v. Rodecker, 90 Wis. 1, 62
N. W. 533. See Huck v. Flentye,
80 111. 258 (destruction of wall
and single building supported
thereby).
20. Moore v. .Shoemakery 10
App. D. C. 6; Dowling v. Hen-
nings, 20 Md. 179, 83 Am. Dec.
545; Hoffman v. Kuhn, 57 Miss.
746, 34 Am. Rep. 491; Bowhay
V. Richards, 81 Neb. 764, 19 L.
<§ 372] Easements. 1367
that a party wall easement ceases on the destruction
of the buildings, the courts appear to consider that
there is a rule of law to that effect, necessitated by the
consideration of the burden involved in compelling an
owner to reconstruct his wall or building in such a
way as to afford his neighbor the same easement as he
had before. The rule is, however, it is submitted, in
the case of the grant or reservation of a party wall
easement, properly a rule of construction rather than
of law,^^ since it could be excluded by an expression of
intention that the easement shall continue in spite of
the destruction of the buildings.^- It might, however,
in the case of such an easement, when created by pre-
scription, it seems, be regarded as a rule of law.
In one case,-''^^ it was decided that while ordinarily
the destruction of a party wall and the buildings on
both sides thereof would extinguish the party wall ease-
ments, and also the easement of a right to use a stair-
case in one building for purposes of access to the
other, this was not so when the wall and staircase were
inunediately rebuilt in exactly the same location as
before, it being said that "this conduct of the parties
operated to revive the easement that was suspended
by the destruction of the property." There is, in an-
other state, a decision to the contrary effect,^'^ and it is
R. A. (N. S.) 883, 116 N. W. 677. being a case of express grant.
Heartt v. Kruger, 121 N. Y. 386, It does not seem that this con-
9 L. R. A. 135, 18 Am. St. Rep. stitutes a substantial basis o£
829, 24 N. E. 841; Odd Fellows' distinction.
Hall Ass'n of Portland v. Hegele, 21. See Moore v. Shoemaker,
24 Ore. 16, 32 Pac. 679. 10 App. D. C. 6.
In Heartt v. Kruger, 121 N. Y. 22. As in F'risbie v. Bigham
386, 9 L. R. A. 135, 18 Am. St. Masonic Lodge No. 256, 133 Ky.
Rep. 829, 24 N. E. 841 supra. 588, 118 S. W. 359.
the court emphasizes the fact 23-24. Douglas v. Coonley, 15t;
that the easement was created N. Y. 521, 66 Am. St. Rep. 580,
by "implied grant" as correspond- 51 N. E. 283.
ing to a preexisting gwa.si-ease- 25. Bonney v. Greenwood, 96
ment, distinguishing Brondage v. Me. 335, 52 Atl. 786.
Warner, 2 Hill (N. Y.) 145, as
1368 Real Property. [§ 372
somewhat difficult to see how, if the destniction of the
buildings is otherwise sufficient to extinguish the ease-
ment, this can be avoided by the subsequent adoption
of a particular plan of rebuilding. The decision might
perhaps be supported on the theory that the grant was
of an easement to endure so long as the land was util-
ized for buildings similar to the buildings originally
existing thereon. The court quotes from a text book
on the civil law to the effect that while "servitudes
cease when the things are found in such condition that
one can no longer use them," they "revive if the things
are reestablished in such a manner that one can use
them." But whatever the civil law doctrine in this
regard may be, the existence of an easement, by the
law of this country and of England, is not af-
fected by the temporary impossibility of its exer-
cise. In the case, for instance, of a right to conduct
water over another's land, an injury to the aqueduct
which makes it impossible, for the time being, to exer-
cise the easement, in no way affects the existence of
the easement. And the repair of the aqueduct con-
sequently does not revive the easement, though it re-
vives the possibility of its exercise.
The destruction of one of the buildings separated
by a party wall has been held not to extinguish the
easement in the wall in favor of the other building,-''
and such a \iew is particularly suggested when the
right of support is created by implied grant by way
of necessity, the necessity enduring so long as the build-
ing supported endures.^*'-'^
Way of necessity. A way of necessity has
been regarded as coming to an end when the necessity
ceases, as, for instance, when a highway is opened
26. Lexington Lodge v. Beal, (N. S.) 1021, 134 Pac. 614.
94 Miss. 521, 49 So. 833; Com- 26a. See editorial note, 13 Col-
mercial Kzt. Bank of Ogden v. umbia Law Rev. 754.
Eccles, 43Utah, 91, 46 L. R. A.
§ 372] Easements. 1369
through the dominant tenement, or the owner thereof
acquires another right of way.-' As the intention to
create the way is inferred from the necessity of the
way, the extent of the inference is limited by the same
consideration. The acquisition of another right of way,
however, is not sufficient to exting-uish the w^ay of
necessity, unless the new right of way is reasonably
sufficient for the enjoyment of the dominant tenement.^'"
Change in servient tenement. Occasionally an
easement is created in such terms, or under such circum-
stances, as to indicate that the easement is to endure so
long only as a structure on the servient tenement, in
connection ^yith. which the easement is to be exercised,
endures or is capable of use.^^ In such case the ease-
ment comes to an end when the structure is destroyed
or becomes incapable of use. A somewhat similar case
is presented by a decision that when, by reason of
the condemnation of part of the servient tenement for'
the purpose of a railroad right of way, the exercise
27. Carey v. Rae, 58 Cal. 159; Proctor v. Hodgson, 10 Exch. 824.
Cassin v. Cole, 153 Cal 677, 96 27a. Hart v. Deering, 222
Pac. 277; CoUins v. Prentice, 15 Mass. 407, 111 X. E. 37
Conn. 39, 38 Am. Dec. 61; Russell That one having a way of
V. Napier, 82 Ga. 770, 9 S. E. necessity is given a mere revoc-
746; Oswald v. Wolf, 129 111. 200, able permission to pass to his
21 N. E. 839. Whitehouse v. Cum- land over other land has been
mings, 83 .Me. 91, 23 Am. St. Rep. held not to involve a termination
756, 21 Atl. 743; Oliver v. Hook, of the necessity, so as to extin-
46 Md. 301; Haserick v. Boulia- guish the right of way. Sweezy
Gorell Co., 77 N. H. 121, 88 Atl. v. Vallette, 37 R. I. 51, 90 Atl.
998; Palmer v. Palmer, 150 N. 1078.
Y. 139, 55 Am. St. Rep. 653, 44 N. 28. Linthicum v. Ray, 9 Wall.
E. 966. But see Conley v. Fair- 241, 19 L. Ed. 657; Shirley v.
child, 142 Ky. 271, 134 S. W. 142, Crabb, 138 Ind. 200, 46 Am. St.
properly criticized, it is submitted. Rep. 376, 37 N. E. 130; Ballard v.
in 11 Columhia Law Rgv. 478. Butler, 30 Me. 94. Central Wharf
The English case of Holmes v. v. India Wharf, 123 Mass. 567;
Goring, 2 Bing, 76, accords with Bartlett v. Peaselee, 20 N. H. 547,
the view generally adopted in 51 Am. Dec. 242; Percival v. Wil-
this country, but it is questioned Hams, 82 Vt. 531, 74 Atl. 321.
by Parke & Aldersou, B. B., in
1370 Re.a.l Peoperty. [^ 373
of a preexisting private right of way became impossible
of exercise, it was extinguished.^^
§ 373. Excessive user of land. The fact that the
owner of the easement makes a use of the servient tene-
ment not justified by the character or extent of the ease-
ment does not involve the extinguishment or suspension
of the easement, although in making such use he is a
w^rongdoer.''^ Equity will, in such case, ordinarily en-
join such an illegal exercise of the easement, without
interfering with the proper exercise except in so far
as this may be necessary to protect the landowner.
As before stated,^ ^ the fact that, subsequently to
the grant of the easement, there is a change in the mode
in which the dominant tenement is utilized, so that
there results a more constant use of the servient tene-
ment in the exercise of the easement, has not ordinarily
been regarded as involving an excessive user of the
easement. That is, the grant of the easement is re-
garded prima facie as not being intended to continue
in force only so long as the mode of utilizing the
dominant tenement continues unchanged. It might oc-
cur, however, that by a reason of a very radical change
in the dominant tenement, it becomes impossible to
exercise the easement without an excessive user of the
servient tenement, and the making of such change
might, under some circumstances, be regarded as in-
vohdng an extinction of the easement by abandon-
ment.^ ^^
29. Cornell Andrews Smelting vitt v. Washington County, 75 Vt.
Co. V. Boston & P. R. Corp., 202 156, 53 Atl. 563. See McMiUian v.
Mass. 585, 89 N. E. 118. Cronin, 75 N. Y. 474; editorial
30. Mendell v. Delano, 7 Mete. note 18 Harv. Law Rev. 608.
(Mass.) 176; McTavish v. Carroll, 31. Ante, § 369.
13 Md. 429. White's Bank v. 31a. Goddard, Easements (6th
NichoUs, 64 N. Y. 65; Walker v. Ed.) 547; Gale, Easements (8th
Gerhard, 9 Phila. (Pa.) 116. Dea- Ed.) 521, 528.
-^ 374] Easements. 1371
§ 374. Unity of possession or title. An easement
is ordinarily extinguished if one person acquires an
estate in fee simple in possession in both the dominant
and servient tenements.'^^ J3y reason of the perpetual
right of possession of the tenement which was pre-
viously subject to the easement, such person and his
heirs can make any use whatsoever thereof, and the
inferior right of easement, its utility having thus dis-
appeared, is swallowed up in the superior right of pos-
session.
Wlien one person acquires estates in possession
in both the dominant and servient tenements, but they
are such in character that one mil or may terminate
before the other, the utility of the easement, though in
abeyance for the time being, is liable to revive by reason
of the termination of one of such estates, and conse-
quently there is no reason for regarding it as extin-
guished. So the easement is not extinguished by rea-
son of the fact that one has an estate in fee simple in
one tenement and an estate for life or for years in the
other.^3 But though the estates are of unequal duration,
the easement should, it would seem, be regarded as ex-
tinguished if it cannot possibly endure after the less
estate comes to an end, as when an easement is created
32. Smith v. Roath, 238 111. 247, ment of a right of way by reason
128 Am. St. Rep. 123, 87 N. E. of the acquisition, by the owner
414; Warren v. Blake, 54 Me. 276, of the dominant tenement, of the
89 Am. Dec. 748; Capron V. Green- fee simple in the servient tene-
way, 74 Md. 289, 22 Atl. 269; ment, if there is a like right of
Ritger v. Parker, 8 Cush. (Mass.) way outstanding in another. This
145, 54 Am. Dec. 744; Atwater is, it is submitted, most question-
V. Bodfish, 11 Gray (Mass.) 150 able.
Rogers v. Powers, 204 Mass. 257, 33. Thomas v. Thomas, 2
90 N. E. 514; Kieffer v. Imhoff, Cromp. M. & R. 34; Dority v.
1'6 Pa. 438; Plimpton v. Converse, Dunning, 78 Me. 381, 6 Atl. 6;
42 Vt. 712. Bull, Petitioner, 15 R. I. 534, 10
In Tuttle V. Kilroa, 177 Mass. Atl. 484; Pearce v. McClenaghan,
146, 58 N. E. 682, there is ap- 5 Rich. Law (S. Car.) 178, 55 Am.
parently a dictum that there is Dec. 710.
no extinguishment of the ease-
1372 Eeal Property. [^ 374
in favor of a life tenant of land for his life, and subse-
quently he acquires a fee simple estate in the servient
tenement, or the fee simple tenant of the servient tene-
ment acquires his life estate in the dominant tenement.
It has been decided that the estates are not of equal
duration for the purpose of causing an extinguishment
of the easement, when one is a fee simple and the other
a fee determinable.^* And the same principle appears
to be involved in decisions that the easement is not
extinguished because the legal title to both the domin-
ant and servient tenements is vested in one person as
mortgagee, under distinct mortgages falling due at
different times,^^ nor because an estate in fee simple in
both tenements is vested in a single person, if one of
these titles is wrongful, and therefore subject to defeas-
ance.^^
As above indicated, the extinguishment of the ease-
ment by one's acquisition of estates in both the dominant
and servient tenements appears to be by reason of the
unity of possession operating to render the easement
useless, and so in the earlier authorities the unity of
possession is referred to as the important consideration,
without any reference to the question of the necessity
of unity of seisin."^^ It has been said, however, that
unity of possession is insufficient to effect an extinguish-
ment unless there is also unity of seisin,-^^ w^ithout any
explanation being given of why unity of seisin should
bo regarded as necessary. Suppose A having an estate
in Whiteacre for ten years only creates in favor of B
34. Rex V. Inhabitants of Her- 166; Peers v. Lucy, 4 Mod. 364;
mitage, Cathew. 339. Rex v. Inhabitants of Hermitage.
35. Ritger v. Parker, 8 Cush. Carthew. 239; Whalley v. Thomp-
(Mass.) 145, 54 Am. Dec. 744. See son, 1 Bos. & P. 371.
Co. Litt., 313b. 38. Thomas v. Thomas, 2
36. Tyler v. Hammond, 11 Cromp. M. & R., per Alderson,
Pick. (Mass.) 193; Co. Lilt. 313b. B.; editorial note, 21 Harv. Law
37. Bro. Abr. Extinguishment, Rev. at p. 359; 11 Halsbury's
pi. 15; Jenkins' Centuries, p. 20, Laws of England, 283.
case 37; Sury v. Pigot, Poph.
<^x 374] Easements. 1373
an easement in Wliiteacre to the extent of his ability,
that is, for the balance of the ten years, and subse-
quently B acquires A's estate for the balance of the
ten years. B then has an estate, with the right of
possession for so long as the easement can endure, and
the same reason would seem to exist for regarding the
easement as exting-uished as if he had acquired also the
estate in fee simple in Wliiteacre.
Xot only has it been said that unity of possession
without unity of seisin is insufficient to extinguish the
easement, but it has even been said that unity of seisin
without unity of possession is sufficient for this pur-
pose.^'' According to this view, if one who has an estate
in fee simple in the dominant tenement makes a lease
for years and subsequently transfers his reversion to
the owner of the servient tenement, he thereby effects
an exting-uishment of the easement not only as against
himself but also as against his lessee.-^^*^ A rule which
thus operates to put property rights of one person at
the mercy of others is to be accepted with same hesita-
tion, in the absence of an overwhelming weight of
authority in its favor. It is difficult indeed to under-
stand why the highly artificial concei)tion of seisin, as
distinguished from possession, should be introduced in
this connection. As above indicated, the earlier authori-
ties, to whom the conception of seisin was most familiar,
refer to unity of possession, as the decisive considera-
tion without mention of unity of seisin.
In order that unity of possession may extinguish the
easement, the person in whom the union occurs must
39. Buckby v. Coles, 5 Taunt. ihe easement of light. The deci-
211. sion appears, however, to be
39a. That the owner of the based on the terms of the Pre-
dominant tenement cannot thus scription Act in reference to the
effect the extinguishment of the easement of light, rather than
easement as against his lessee is upon general principles appli-
decided in Richardson v. Graham, cable to all easements.
1 K. B. (1908) 439, as regards
2 R. P.— 12
1374 Eeal Property. [§ 375
have an estate in severalty in each tenement/^ If he
has 'merely a fractional interest in the dominant tene-
ment, his co-owners are entitled to the easement irre-
spective of whether his share and the servient tenement
become united in ownership,"*^ while if he has merely a
fractional interest in the servient tenement, his joint
right to the possession of such tenement gives him no
right to utilize any part thereof for his own exclusive
benefit, and consequently the utility of the easement con-
tinues as before.^- Moreover, it seems, the estates which
are thus united in one person must both be beneficial in
character, that is, one must not be a bare legal estate and
the other equitable in character.^^
§ 375. Application of land to public use. The
question whether the establishment of a highway has
the effect of extinguishing" a pre-existent private right
of way along the same line becomes of importance in
case the highway is subsequently discontinued.^* That
the concurrent existence of a highway and of a private
40. Cheda v. Bodkin, 173 Cal. 43. See Ecclesiastical Com'rs
7. 158 Pac. 1025; Smith v. Roath. for England v. Kino, 14 Ch. Div.
238 111. 247, 87 N. E. 414; Reed 213; Pearce v. McClenaghan, 5
V. West, 16 Gray (Mass.) 283; Rich. Law (S. C.) 178, 55 Am.
Atlanta Mills v. Mason, 120 Mass. Dec. 710.
244; Dority v. Dunning, 78 Me. 44. The question is referred to
381, 6 Atl. 6 {dictum); Blanchard in Dodge v. Pennsylvania R. Co.,
V. Maxson, 84 Conn. 429, 80 Atl. 43 N. J. Eq. 351, but the cases
206. in other states there referred to
41. See Tuttle v. Kilroa, 177 as adjudications on the question
Mass. 146, 58 N. E. 682. appear to be but partially ap-
42. But there is perhaps a plicable. In Murphy v. Bates, 21
partial extinguishment, that is, R. I. 89, 41 Atl. 1011, it is said
an extinguishment as regards his that "ordinarily a private way
interest in the easement, preclud- becomes merged in a public way,"
ing him, or any one claiming but the authorities cited (Ross
under him, from thereafter ex- v. Thompson, 78 Ind. 90; Elliott,
ercising the easement. tSee Bar- Roads & Streets, §§ 3 & 4) do not
linger v. Virginia Trust Co., 132 support the statement.
N. C. 409. 43 S. E. 910.
^ 375] Easements. 1375
way along the same line is not impossible appears to
be fully recognized in the decisions, before referred
to, that the grant of land as abutting on a highway
gives in effect a private right of way upon the discon-
tinuance of the highway,-'-^ and it is difficult to see why
the establishment of a highway should in itself extin-
guish the private right, though it renders the assertion
of such right at least temporarily unnecessary.^*^
If the owner of the right of way joins with the
o\\Tier of the servient tenement in dedicating the land
to such public use, the dedication is obviously binding
on him,^^ but it would seem that, as upon the cessation
of the public use the owner of the land has the same
rights as before the dedication, so the owner of the
easement has such rights. If the latter does not join
in the dedication he is not, in theory, affected there-
by,^* but whether the transformation of the private
right of way into a public one could be regarded as
an impairment of his rights capable of legal remedy
would seem to be doubtful, in the absence at least of
language in the grant of the right of way making it
more or less exclusive.^^
In case the highway is established by legal proceed-
ings in which the owTier of the right of way appears as
a petitioner, the right may well be regarded as aban-
doned by him,^*^ In case he is not a petitioner but is
a party to the proceedings, his right would seem to be
extinguished to the same extent as that of the owner of
the land, that is, only during the continuance of tlie
45. Ante, § 366a, note 35. And 1 Man. & Gr. 484; Duncan v.
see Isaac G. Johnson & Co. v. Louch, 6 Q. B. 904; R. v. Chorley,
Cox, 196 N. Y. 110, 89 N. E. 454. 12 Q. B. 515.
46. The English cases are 47. Bailey v. Culver, 84 Mo.
dearly to the effect that the es- 531.
tablishment of a highway over 48. Sarcoxie v. Wild, 64 Mo
the line of a private way does App. 403. See Post, § 481.
not, of itself, affect the existence 49. See ante, 367, note 78.
of the latter. Allen v. Ormond, 8 50. McKinney v. Pennsylvania
Bast. 4; Brownlow v. Tomlinson, R. Co., 222 Pa. 48, 70 Atl. 946.
1376 Real Peopebty. [<§, 376
public user, with a revival of i]ie right upon its dis-
continuance,^^ unless the puhiic acquired the fee by
the condemnation proceeding.''- If he is not a party to
the proceeding, his right of way cannot be regarded as
extinguished, so as to be incapable of assertion after
the discontinuance of the highway, ""^ though he is, it
appears, to be regarded as concluded by the pro-
ceeding, on the theory that he is not damnified by the
establishment of the highway.^'*
When the servient tenement is condemned for a
railroad right of way, and the owner of the easement is
made a party to the proceeding, the easement is ex-
tinguished, if the railroad acquires the fee,"'^ while if
the railroad acquires merely the easement of a right
of way, it does not seem that the private easement is
extinguished, though its exercise is for the time being
rendered impossible. If the owner of the easement is
not a party to the proceeding, his easement, it seems,
is not affected thereby.^^
§ 376. Express release. An easement may be ex-
tinguished by an express release thereof made by the
owner of the dominant tenement in favor of the owner
of the servient tenement,^^ and such an express re-
51. Post, § 565. 57. Goddard, Easements, 575;
52. Post. § 561. Gale, Easements, 512. Jersey
53. Clayton v. County Court, Farm Co. v. Atlanta Realty Co.,
58 W. Va. 253, 2 L. R. A. N. S. 164 Cal. 412, 129 Pac. 593; Rich-
598, 52 S. E. 103. ards v. Attleborough Branch R.
54. Allea v. City of Chicago, Co., 153 Mass. 120, 26 N. E. 418;
176 111 113, 52 N. E. 33 ; Clayton Flaten v. Moorehead City, 58 Minn.
V. County Court, 58 W. Va. 253, 324, 59 N. W. 1044; McAllister
2 L. R. A. N. S. 598, 52 S. E. v. Deoane, 76 N. C. 57.
103. Somewhat analagous to the
55. Googins v. Boston, & A. case of an express release is a
R. Co., 155 Mass 505, 30 N. E. case in which it was held that one
71; Currie v. Bangor, & A. R. who made a conveyance of land
Co., 105 Me. 529, 75 Atl. 51. with a covenant of warranty
56. Lewis, Eminent Domain, § therein was estopped, upon sub-
531, note 21. sequently acquiring adjoining
§ 377]
Easements.
1377
lease must, at common law, like any other release, be
under seal.^^ Under the doctrine of abandonment of
an easement,'"'^ however, as recognized in the modern
decisions, it seems that even an oral relinquishment
of the easement might be effective.
One w^ho has only a partial or limited interest in
the dominant tenement can obviously extinguish the
easement by release only as against himself.*^"
§ 377. Abandonment. There are many cases to tlie
effect that an easement is extinguished by ''abandon-
ment" thereof, by which is meant that a nonuser
thereof, together with other circumstances, may, as
showing an intention to make no further use of it,
terminate the easement.^ ^ The question whether there
has been such an abandonment is in each case a ques-
land, to assert that there was
appurtenant to this latter land
an easement upon the land first
conveyed. Hodges v. Goodspeed,
20 R. I. 537, 40 Atl. 373.
58. Co. Litt. 264b; Gale, Ease-
ments, 482; Pue v. Pue, 4 Md.
Ch. 386. That it must be in
writing, see Erb v. Brown, 69
Pa. 216.
59. Post, § 377.
60. Dyer v. Sanford, 9 Mete.
(Mass.) 395, 43 Am. Dec. 399.
Glenn v. Davis, 35 Md. 208, 6
Am. Rep. 389; "Welsh v. Taylor,
134 N. Y. 450, 18 L. R. A. 535, 31
N. E. 896; Robert v. Thompson,
16 N. Y. Misc. 638, 40 N. Y. Supp.
754.
61. Moore v. Rawson, 3 Barn.
& C. 332; Stein v. Dahm, 96 Ala.
481, 11 So. 597; Arnold v. Roup,
61 Colo. 316, 157 Pac. 206; New
York, N. H. & H. R. Co. v. Cella,
88 Conn. 515, 91 Atl. 972; Louis-
ville & N. R. Co. V. Covington,
2 Bush (Ky.) 526; Fitzpatrick v.
Boston, & M. R. R., 84 Me. 33, 24
Atl. 432; Stewart v. May, 119 Md.
10, 85 Atl. 957; Canny v Andrews,
123 Mass. 155; King v. Murphy,
140 Mass. 254, 4 N. E. 566. Jones
V. Van Bochove, 103 Mich. 98,
61 N. E. 342; Snell v. Levitt, 110
N. Y. 595, 1 L. R. A. 414, 18
X. E. 370; Welsh v. Taylor, 134
N. Y. 450, 18 L. R. A. 535, 31
X. E. 896; Willey v. Xorfolk
Southern R. Co., 96 N. C. 408;
Faulkner v. Rocket, 33 R. I. 152,
80 Atl. 380; Taylor v. Hampton,
4 McCord (S. C.) 96, 17 Am. Dec.
710; JMonaghan v. Memphis Fair
& Exposition Co., 95 Tenn. 108,
31 S. W. 497. Brown v. Oregon
Short Line R. Co., 36 Utah, 257,
24 L. R. A. (N. S.) 86, 102 Pac.
740; Philips v. Coumbe, 90 Wash.
543, 156 Pac, 535; Stenz v. Ma-
honey, 114 Wis. 117, 89 N. W. 819.
1378
Real Property.
[^ 377
tion of fact.''^ And it must be established, it has been
said, by "evidence clear and unequivocal of acts de-
cisive and conclusive.""^ Even the fact that the owner
of the dominant tenement erects or alters a structure
in such a way as to render the exercise of the ease-
ment for the time difficult or impossible does not neces-
sarily involve an abandonment of the easement.^*
It has been stated, with more or less explicit-
ness, that the underlying theory of the abandonment
of an easement is that of the inference or implication,
from the circumstances of the case, of an express re-
lease of the easement,*^^ but such a theory does not
62. Smith v. Worn, 93 Cal. 206,
28 Pac. 944; Holmes v. Jones,
80 Ga. 659, 7 S. E. 168; Vogler
V. Geiss, 51 M'd. 407; King v.
Murphy, 140 Mass. 254, 4 N. E.
566. Willets v. Langhaar, 212
Mass. 573, 99 N. E. 466; Leach
V. Philadelphia, H. & P. R. Co.,
258 Pa. 522, 102 Atl. 175; Poison
V. Ingraham, 22 S. C. 541; South-
ern Ry.-Carolina Division, v. How-
ell, 89 S. C. 391, Ann. Cas. 1913A,
1070, 71 S. E. 972; Cook v. Bath
Corporation, L. R. 6 Eq. 177.
63. Adams v. Hodgtkins, 109
Me. 361, 42 L. R. A. (N. S ) 741,
84 Atl. 530. And for state-
ments of a more or less similar
character, see Dyer v. Sanford, 9
Mete. (Mass.) 395, 43 Am. Dec.
306; Eddy v. Chace, 140 Mass.
471, 5 N. E. 306; Lagorio v. Lew-
enberg, 226 Mass. 464, 115 N. E.
979; Hennessy v. Murdock, 137
N. Y. 317, 33 N. E. 330; Vogler
V. Geiss, 51 M'd. 407; Raritan
Water Power v. Veghte, 21 N. J.
Eq 463.; Daniel v. Doughty, 120
Va. 853, 92 S. E. 848.
64. Brunthaver v. Talty, 31
App. Dist. Col. 134; Hay ward v.
Spokesfield, 100 Mass. 491. Vin-
ton V. Greene. 158 Mass. 426, 33
N. E. 607; Faulkner v. Duff, 14
Ky. L. Rep. 227, 20 S. W. 227;
McKee v. Perchment, 69 Pa. 342.
Compare Taylor v. Hampton, 4
McCord (S. Car.) 96, 17 Am. Dec.
710; Tuttle v. Sowadzki, 41 Utah,
501, 126 Pac. 959.
As to the question of the aband-
onment of an easement of light,
see Salem City Nat. Bank v. Van
Meter, 59 N. J. Eq. 32, 45 Atl.
280, 61 N. J. Eq. 674, 47 Atl.
1131; Johnson v. Hahne, 61 N.
J. Eq. 438, 49 Atl. 5; Fowler v.
Wick, 74 N. J. Eq. 603, 70 Atl.
682, and the many English cases
cited in Gale, Easements, and
Goddard, Easements.
65. See Norbury v. Meade, 3
Bligh. 242; Lovell v. Smith, 3 C.
B. N. S. 120, 127; Doe d. Put-
land V. Hilder, 2 Barn. & Aid.
782; Winham v. McGuire, 51 Ga.
578; Adams v. Hodgkins, 109 Me.
361, 42 L. R. A. (N. S.) 741, 84
Atl. 530; Brown v. Trustees of
Methodist Episcopal Church, 37
Md. 108; Suydam v. Dunton, 84
Hun (N. Y.) 506, 32 N. Y. Supp.
§ 377] Easements. 1379
appear to have had any practical result on the course
of decision. Occasionally, it has been stated that an
indication of intention to abandon the easement is not
effective to extinguish the easement unless the owner
of the servient tenement is induced thereby to make
expenditures or othersvise to alter his position, thus
in effect making the question of abandonment a ques-
tion of estoppel.^*' But this is evidently not in accord
with the great weight of authority. The fact, how-
ever, that the person asserting the abandonment was
induced, by the course of action of the owner of
the easement, to assume that there was an intention
to abandon the easement, and to make improvements
on the strength of this assumption, would presumably
operate in favor of a finding of abandonment, or as
it might otherwise be expressed, the owner of the
easement might, in such case, be regarded as estopped
to assert the easement.*'^'^
Xonuser in itself does not terminate an easement
acquired by grant,*'" and, as above stated, it is at most
merely one of the facts from which an abandonment
may be inferred. The fact that the nonuser continues
333; 3 Kent, Coram. 448; God- Y. 148, 116 N. E. 862. And Poxt, §
dard, Easements, 555. The whole 378.
theory of extinguishment of ease- 67. Moore v. Rawson, 3 Barn,
ments by abandonment is severely & c. 332; Smith v. Worn, 93 Cal.
criticized in 11 Columbia Law 206, 28 Pac. 994; Petitpierre v.
Rev. at p. 777. Maguire, 155 Cal. 242, 100 Pac.
66. See Smith v. Worn, 93 Cal. 690; Dewire v. Hanley, 79 Conn.
206, 28 Pac. 944; Vance v. Adams 454, 65 Atl. 573; Ford v. Harris,
(Ky.) 112 S. W. 927; Day v. 95 Ga. 97, 22 S. E. 144; Hoffthen
Walden, 46 Mich. 575, 10 N. W. v. Mede, 226 111. 320, 80 N. E.
26; Scott V. Moore, 98 Va. 668, 893; Edgerton v. McMuUan, 55
81 Am. St. Rep. 749, 37 S. E. Kan. 90, 39 Pac. 1021; Adams v.
?42. Hodgkins, 109 Me. 361, 42 L. R. A.
66a. See Trimble v. King, 131 (N. S.) 741, 84 Atl. 530; Dana v.
Ky. 1, 22 L. R. A. (N. S.) 880, 114 Valentine, 2 Allen (Mass.) 128;
S. W. 317; Patterson v. Chambers' Hayford v. Spokesfield, 100 Mass.
Power Co., 81 Ore. 328, 159 Pac. 491; Butterfield v. Reed, 160
568; Andrews v. Cohen, 221 N. Mass. 361, 35 N. E. 1128; Murphy
1380
Eeal Propeety.
[§ 377
for the prescriptive period is immaterial,"''^ in the
absence of any aaverse acts on the part of the owner
of the land."'''
There are dicta to the effect that an easement ac-
quired by prescription, as distinguished from one ac-
quired by express grant, may he extinguished by non-
user alone,''^ though in but one case, apparently,'^ is
lliere a direct decision to this effect, and such a distinc-
tion has been doubted, apparently with good reason.'^
Chair Co. v. American Radiator
Co., 172 Mich. 14, 137 N. W. 791;
Dulce Realty Co. v. Staed Realty
Co., 254 Mo. 417, 151 S. W. 415;
Dill V. Board of Education of City
of Camden, 47 N. J. Eq. 421, 10
L. R. A. 276, 20 Atl. 739; Welsh
V. Taylor, 134 N. Y. 450, 18 L. R.
A. 535, 31 N. E. 896; Willey v.
Norfolk S. R. Co., 96 N. C. 408, 1 S.
E. 446; Hoffman v. Dorris, 83 Ore.
625, 163 Pac. 972; Bombaugh v.
Miller, 82 Pa. St. 203; Sweezy v.
Vallette, 37 R. I. 51, 90 Atl. 1078;
Boyd V. Hunt, 102 Tenn. 495, 52
S. W. 131; Scott V. Moore, 98 Va.
668, 81 Am. St. Rep. 749, 37 S. E.
342; McCue v. Bellingham Bay
Water Co., 5 Wash. 156, 31 Pac.
461.
68. Ward v. Ward, 7 Exch.
838; Nichols v. Peck, 70 Conn.
439, 40 L. R. A. 81, 66 Am. St.
Rep. 122, 39 Atl. 803; Ford v.
Harris, 95 Ga. 97, 22 S. E. 144;
Edgerton v. MoMullan, 55 Kan.
90, 39 Pac. 1021; Pratt v. Sweet-
ser, 68 Me. 344; King v. Murphy,
140 Mass. 254, 4 N. E. 566; Butter-
field V. Reed, 160 Mass. 361, 35
N. E. 1128; Day v. Walden, 46
Mich. 575, 10 N. W. 26; Wheeler
V. Wilder, 61 N. H. 2; Welsh v.
Taylor, 134 N. Y. 450, 18 L. R. A.
535, 31 N. E. 896; Lindeman v.
Lindsey, 69 Pa. St. 93, 8 Am. Rep.
219; Mason v. Horton, 67 Vt. 266,
48 Am. St. Rep. 817, 31 Atl. 291.
But non user for the prescrip-
tive period has occasionally been
regarded as creating a rebuttable
presumption of intention to aban-
don. Pratt V. Sweetser, 68 Me.
344; Dyer v. Dupui, 5 Whart.
(Pa.) 584; Hunter v. West, 172
N. C. 160, 90 S. E. 130. See Reg
V. Chorley, 12 Q. B. 515; 11 Hals-
bury's Laws of England, 278;
Goddard, Basements (6th Ed.),
560.
69. Kuecken v. Voltz, 110 111.
264; Adams v. Hodgkins, 109 Me.
361, 84 Atl. 530; Wooster v. Fiske,
115 Me. 161, 98 Atl. 378. Browne
V. Baltimore M. E. Church, 37
Md. 108; Arnold v. Stevens, 24
Pick. (Mass.) 106, 35 Am. Dec.
305; iHayford v. Spokesfield, 100
Mass. 491; Smyles v. Hastings, 22
N. Y. 217; Pope v. O'Hara, 48
N. Y. 446; Nitzell v. Paschall, 3
Rawle (Pa.) 76. See Curran v.
City of Louisville, 83 Ky. 628;
Wiilley V. Norfolk R. Co., 96 N.
C. 408, 1 S. E. 446.
§ 378] Easements. 1381
In a few states this asserted distinction has been in
effect embodied in a statutory provision that a servitude
acquired by enjoyment may be extinguished by disuse
thereof for the period prescribed for acquiring title
by enjoyment.'^
According to a few decisions, an easement cannot
be extinguished by abandonment, unless there has been
a failure to use the easement for a period equal to
that necessary for the creation of an easement by
prescription,"^ but this view has not been generally
adopted J*
§ 378. Executed license. It has been decided that
if one who has an easement in another's land gives a
license to the 0"s\Tier of the servient tenement to do
something thereon, the effect of which is to obstruct the
exercise of the easement, and the licensee, on the
faith of the license, makes expenditures for improve-
ments obstructive of the easement, the easement is
extinguished.'^ Accordingly, if one entitled to an ease-
70. Rhodes v, Whitehead, 27 811; Montana Codes 1907, § 4517;
Tex. 304, 84 Am. Dec. 631. North Dakota, Comp. Laws 1913,
71. See Veghte v. Raritan § 5340. Oklahoma Rev. Laws 1910,
Water Power Co., 19 N. J. Eq. § 6633; South Dakota Civ. Code,
142. Pratt v. Sweetser, 68 Me. § 277.
344; Angell, Water Courses (7th 73. Cox v. Forrest, 60 Md. 74;
Ed.) § 252, note; 3 Kent, Comm. Wilder v. City of St. Paul, 12
450, note by Mr. Justice Holmes. .Minn. 192; Corning v. Gould, 16
The distinction is not recognized Wend. (N. Y.) 531.
in England. See Gale, Ease- 74. See Reg v. Chorley, 12 Q.
ments, 527. In Hale v. Oldroyd, B. 515; Moore v. Rawson, 3 Barn.
14 Mees. & W. 789; Ward v. Ward, & C 332; Louisville, & N. R. Co.,
7 Exch. 838; Lovell v. Smith, 3 v. Covington, 2 Bush (Ky.) 526;
C. B. (N. S.) 120,— all cases of Fitzpatrick y. Boston, & M. R.
prescriptive easements, — nonuser R., 84 Me. 33, 24 Atl. 432. Canny
lor the statutory period was not v. Andrews, 123 Mass 155; Steere
regarded as in itself extinguish- v. Tiffany, 13 R. L 568.
ing the right, no reference being 75. Winter v. Brockwell, 8
made to any such distinction as East, 308, as explained in Hew-
that referred to above. lins v. Shippam, 5 Barn. & C.
72. California Civ. Code, § 221; Liggins v. Inge, 7 Bing. 682;
1382 Eeal Peoperty. [§ 378
ment of light over another's land gives a license to
the owner of the servient tenement to erect a
building thereon which will prevent the passage of
light, and the building is erected accordingly, the
easement of light is extinguished;'^*' and, if one en-
titled to flow another's land gives such other a
license to erect an embankment preventing such
flow, and the embankment is erected, the easement
of flowage is extinguished." These decisions have
been referred to in some jurisdictions as representing
an exception to the general rule that a license is revo-
cable even though followed by improvements on the
faith thereof,'^ but they may more satisfactorily, it
is conceived, be regarded as applications of the doc-
trine of estoppel. Just as one who undertakes orally
to grant an easement is, after the intended grantee
makes improvements on the strength thereof, estopped
to deny the validity of the grant,^*^ so one who under-
takes orally to release an easement by authorizing
the construction of improvements which will prevent its
Boston, & P. R. Corp. v Doherty, laid down in the books, that a
154 Mass. 314, 28 N. E. 277; Cart- license executed cannot be coun-
wright V. Maplesden, 53 N. Y. 622; termanded, is not applicable to
Addison v. Hack, 2 Gill (Md.) 221, licenses which, if given by deed,
41 Am. Dec. 421; Vogler v. Geiss, would create an easement, but to
51 Md. 407. Davidson v Kretz, licenses which, if given by deed,
127 Minn. 313, 149 N. W. 652. See would extinguish or modify an
Stein V. Dahm, 96 Ala. 481, 11 easement. They also show that
So. 597. the distinction, sometimes taken
76. Winter v. Brockwell, 8 in the books, between a license to
East, 308. The doctrine has been do acts on the licensee's own
held to be applicable to the so- land, and a license to do acts on
called easements of light, air, and the licensor's land, is the same
access in the owner of land abut- 'distinction that is made between
ting on a highway. White v. Man- licenses which, if held valid,
hattan Ry. Co., 139 N. Y. 19, 34 N. would create, and licenses which
E. 887. See Post, § 417. extinguish or modify, an ease-
77. Morse v. Copeland, 2 Gray ment." Metcalf, J., in Morse v.
(Mass.) 302. Copeland, 2 Gray (Mass.) 302.
78. "The authorities * * * 79. Ante, § 349(d) notes 44-49.
show that the rule, sometimes
§ 378] Easements. 1383
exercise, is thereafter estopped to deny the validity
of the release. If he evidently does not intend to re-
lease the easement, as when he gives permission to con-
struct merely a temporary obstruction, the fact that
such obstruction is erected would apparently not pre-
clude him from afterwards asserting the easement.^*'
Attention has,^"*^ in this connection, been called to
the consideration that, after the obstruction has been
erected on the servient tenement under license from
the owner of the dominant tenement, the latter is
powerless to remove it or to compel its removal, and
that this in itself precludes him from again exercising
the easement until the owner of the servient tenement
voluntarily removes the obstruction, or it is removed
by natural causes.
In the case of a license to obstruct a way at a
particular point only, the fact of the construction of
the obstruction in accordance therewith, while it may
properly be regarded as extinguishing the way at that
point, and, by reason of the physical conditions of the
way, such partial extinguishment may necessarily in-
volve a total disuse of the way,^^ it may occur that
a right of passage by or around the obstruction is sub-
stituted by agreement,^^ with the result that the way
still exists over the servient tenement except at the
point at which the obstruction occurs.*^ The fact that,
without having given any express license to obstruct the
way, the owner of the dominant tenement makes no
objection to the erection of a structure which has that
effect, does not necessarily, it seems, preclude him from
80. See Vogler v. Geiss, 51 Md. R. Corp. v. Doherty, 154 Mass.
407. 314, 28 N. E. 277; Davidson v.
80a. See editorial note, 11 Co- Kretz, 127 Minn. 313, 149 N. W.
lumbia Law Rev. at p. 78. 652.
81. See Vogler v. Geiss, 51 82. Ante, § 367, notes 12-17.
Md. 407; Cartwright v. Maples- 83. See Peck v. Lloyd, 38
den, 53 N. Y. 622; Aldrich v. Rill- Conn. 566; Hall v. Hall, 106 Me.
ings, 14 R. I. 233; Boston & P. 389, 76 Atl. 705.
1384 Real Property. [§ 379
afterwards asserting bis right of passage if tlie owner
of the servient tenement knew, or had reason to know,
of the easement.s^ But the physical conditions of the
way and the other circumstances may be such as to
justify an inference that another place of passage has
been substituted by mutual assent.^^
§ 379. Adverse user of land. An easement may be
extinguished by the user of the servient tenement in
a manner adverse to the exercise of the easement,
for the period required to give title to land by adverse
possession,^^ a subject hereafter discussed.^' The mere
fact, however, that the servient owner uses the land
without reference to the existence of the easement,
does not render his user adverse, since he may do this
merely as a consequence of the failure to exercise the
easement. He must in some way actively interfere with
the exercise of the easement, to such an extent as to
give a right of action against him for disturbance of
the easement.^ ^ Consequently, the maintenance of a
84. Welsh V. Taylor, 134 N. Y. N. E. 396; Dill v. Board of Educa-
450, 18 L. R. A. 535, 31 N. E. tion of City of Camden, 47 N. J.
896; Oberheim v. Reeside, 116 Eq. 421, 10 L. R. A. 276, 20 Atl.
Md. 265, 81 Atl. 590. But see 739; Woodruff v. Paddock, 130 N.
Arnold v. Cornman, 50 Pa. 361. Y. 618, 29 N. E. 1021; State v.
85. Fitzpatrick v. Boston & Suttle, 115 N. C. 784, 20 S. E.
M. R. R., 84 Me. 33, 24 Atl. 432; 725; Hoffman v. Dorris, 83 Ore.
ante, § 367, notes 12-17. 625, 163 Pac. 972; Spackman v.
86. Wall V. United States Min- Steidel, 88 Pa. St. 453; Jessop v.
Ing Co., 239 Fed. 90, 152 C. C. A. Borough of Kittaning, 225 Pa. St.
140; Jesse French Piano & Organ 589, 74 Atl. 554; Bentley v. Root,
Co. V. Forbes, 129 Ala. 471, 87 19 R. I. 205, 32 Atl. 918; Bowen
Am. St. Rep. 71, 29 So. 683; v. Team, 6 Rich. Law (S. C.) 298,
Louisville & N. R. Co. v. Quinn, 60 Am. Dec. 127; City of Galves-
94 Ky. 310, 22 S. W. 221; Balti- ton v. Williams, 69 Tex. 449, 6 S.
more, City of, v. Canton Co. of W. 860.
Baltimore, 124 Md. 620, 93 Atl. 87. Post, §§ 500-513.
144; Smith v. Langewald, 140 88. Edgerton v. McMullan, 55
Mass. 205, 4 N. E. 571; Burnham Kan. 90, 39 Pac. 1021; Smith v.
V. Mahoney, 222 Mass. 524, 111 Langewald, 140 Mass. 205, 4 N.
^ 380] Easements. 1385
gate across a way would not usually involve an adverse
user of the land, it not being such as to give a right
of action.^^ A mere notice by the owner of the land to
the person having the easement, demanding that the
latter cease to make use of the land, and in effect deny-
ing the existence of the easement, does not constitute
an actionable obstruction thereof,^^*^ and consequently
the continuance of such denial for the statutory period,
if unattended by any actual interference with the exer-
cise of the easement, will not affect the existence of
of the easement.
The adverse user may be, not only by the o^\^ler
of the servient tenement, but also by another person,*^*^
and such other person may be one who has also an
easement in the same land.^^ That is, if there is ad-
verse possession sufficient to divest a fee simple title
to land, it will also operate to extinguish an easement
in such land, without reference to whether the adverse
possessor pre\dously had himself an estate or an
easement in the land.
§ 380. In favor of innocent purchaser. An ease
ment is, in effect, as a general rule, extinguished as
to a purchaser for value of the servient tenement, if
E. 571; Butterfield v. Reed, 160 C. 160, 90 S. E. 130.
Mass. 361, 35 N. E. 1128; Day v. 89. Welsh v. Taylor, 134 N. Y.
Walden, 46 Mich. 575, 10 N. W. 450, 18 L. R. A. 535, 31 N. E.
26; Dill V. Board of Education of 896; State v. Pettis, 7 Rich. (S.
City of Camden, 47 N. J. Eq. 421, Car.) 390; Boyd v. Hunt, 102
10 L. R. A. 276, 20 Atl. 739; Tenn. 495, 52 S. W. 131.
Andrus v. National Sugar Refin- 89a. Dana v. Smith, 114 Me.
ing Co., 183 N. Y. 580, 76 N. E. 262, 95 Atl. 1034; Compare, Dost, §
1088; State v. Suttle, 115 N. C. 528.
784, 20 S. E. 725; Lindsey v. 90. San Francisco v. Calder-
Lindeman, 69 Pa. St. 93, 8 Am. wood, 31 Cal. 585, 91 Am. Dec.
Rep. 219; James v. Stevenson 542.
(1893), App. Cas. 162. But see 91. Goodwin v. Bragaw, 87
Baugh V. Arnold, 123 Md. 6, 91 Conn. 31, 86 Atl. 668.
Atl. 151; Hunter v. West, 172 N.
1386 Real Peopebty. [§ 380
lie purchases mthout notice, either actual or con-
structive,^^'' of the easement,^^ while he takes subject to
the easement if he has notice thereof.^"
In the case of an easement created by express
grant, the right of the innocent purchaser for value
of the servient tenement to hold the land free from the
burden of the easement is obviously by reason of the
recording laws, which invalidate an unrecorded con-
veyance as against a purchaser without notice,^^ and
the same is true of an easement created by "implied
grant" so called,^^ which is properly, as before ex-
plained, an express grant extended by construction to
include an easement appurtenant to the land conveyed.
In the case of a prescriplive easement, however, the
recording acts, as ordinarily phrased, cannot well
apply to protect an innocent purchaser, since they have
to do with priorities as between instruments affecting
land, while if the easement is prescriptive the question
is one of priority as between a claim under an instru-
91a. Post, § 511. 27 N. E. 344; Wissler v. Hershey.
92. Mesmer v. Uharriet, 174 23 Pt. St. 333.
Cal. 110, 162 Pac. 104; Rives v. 93. Pollard v. Rebman, 162
Hickey, 1 MacArthur (D. C.) 83; Cal. 633, 124 Pac. 235; Ashelford
Rome Gaslight Co. v. Meyer- v. Willis, 194 111. 492, 62 N. E.
hardt, 61 Ga. 287; Armor v. Pye, 817; Downey v. Hood, 203 Mass.
25 Kan. 731; Jobling v. Tuttle, 4, 89 N. E. 24; Dinneen v. Corp-
75 Kan. 351, 9 L. R. A. (N. S.) oration, etc., 114 Md. 589, 79 Atl.
960, 89 Pac. 699; Corning v. i021; Murphy Chair Co. v. Ameri-
Gould, 16 Wend. (N. Y.) 531; can Radiator Co., 172 Mich. 14.
Taylor v. Millard, 118 N. Y. 244, 137 n. W. 791; Litchfield v.
6 L. R. A. 667, 23 N. E. 376, af- Boogher, 238 Mo. 472, 142 S. W.
firming 42 Hun, 363; Tise v. 302; Reid v. King, 158 N. 0. 85,
Whitaker Harvey Co., 144 N. C. 73 S. E. 168; Shields v. Titus,
507; Ricks v. Scott, 117 Va. 370, 46 Ohio St. 528; Patterson v.
84 S. E. 676; Roe v. Walsh, 76 Chambers' Power Co., 81 Ore. 328,
Wash. 148, 135 Pac. 1031, 136 Pac. 159 Pac. 568; Little v. Gibb, 57
1146; Pentland v. Keep, 41 Wis. Wash. 92, 106 Pac. 491; Proud-
490; Taggart v. Warner, 83 Wis. foot v. Saffle, 62 W. Va. 51, 57 S.
1, 53 N. W. 33. See McCann v. E. 256; Forde v. Libby, 22 Wyo.
Day, 57 111. 101; Ellis v. Bassett. 464, 143 Pac. 1190.
128 Ind. 118, 25 Am. St. Rep. 421,
^ 380]
Easements.
1387
ment and a claim not under an instrument. In
one state there are decisions to this effect, that
a purchaser of land takes it subject to a iDrescrip-
tive easement thereon, even though he has no notice,
actual or constructive.'^*^' There are on the other hand
occasional decisions that the purchaser in such cas^
takes free from the easement, the courts ignoring the
consideration that the doctrine of notice, as regards
legal rigljts, is based upon the recording acts and has
no existence apart therefrom.^ ^
94. Post, § 567.
95. Quinlan v. Noble, 75 Cal.
250, 17 Pac. 69; Ingals v. Plamon-
don, 75 111. 118; Shepardson v.
Perkins, 58 N. H. 354; Muir v.
Cox, 110 Ky. 560, 62 S. W. 723;
Havens v. Klein, 51 How. Pr. (N.
Y.) 82; Rollo v. Nelson, 34 Utah,
116, 26 L. R. A. (N. S.) 315, 96
Pac. 315; Hair v. Downing, 96 N.
Car. 172, 2 S. E. 520; Eliason v.
Grove, 85 Md. 215, 36 Atl. 844;
Muse V. Gish, 114 Va. 90, 75 S.
E. 764. See also citations, ante.
§ 363c, note 80.
96. Johnson v. Knapp, 146
Mass. 70, 15 N. E. 134; Shaugh-
nessy v. Leary, 162 Mass. 108, 38
N. E. 197. See cases cited, Post,
§ 531.
97. Schmidt v. Brown, 226 111.
590, 80 N. E. 1071; Jobling v.
Tuttle, 75 Kan. 351, 9 L. R. A.
N. S. 960, 89 Pac. 699; Sparks v.
Rogers, 29 Ky. Law Rep. 1170,
97 S. W. 11; Van De Vanter v.
Flaherty, 37 Wash. 218, 79 Pac.
794.
CHAPTER XIII.
PROFIT'S A PRENDRE.
§ 381. General considerations.
a82. Rights in gross and appurtenant.
383. Rights of common.
384. Rights of pasture.
385. Mineral rights.
386. The creation of rights.
387. Apportionment and extinction.
§ 381. General considerations. A profi a prendre
involves primarily a power to acquire, by severance
or removal from another's land, some thing or things
previously constituting a part of the land, or appertain-
ing thereto, the holder of the profit a prendre having,
as an integral part thereof, rights against the mem-
bers of the community generally that they shall not
interfere with the exercise or enjoyment of the power. ^
As instances of pro-fits a prendre may be mentioned
rights to take from another's land, and so acquire as
one' own, wood,- herbage,^ or coal or other minerals,*
this latter being at the present day the most important
class of such rights. Likewise, one may have the
right to kill and take as his own game on another's
land,^ fish in waters thereon,^ seaweed cast thereon,"^
1. For a justifiable criticism of 5. Wickham v. Hawker, 7
a former definition by the pres- Mees. & W. 63; Webber v. Lee, 9
ent writer, see Professor Hoh- Q. B. D. 315; Bingham v. Salene,
field's article in 27 Yale Law 15 Ore. 208, 3 Am. St. Rep. 152,
Journ. at p. 70. 14 Pac. 523.
2. Reg V. Chamberlains, 9 6. Fitzgerald v. Firbank,
Adol. & E. 444; Clark v. Way, [1897] 2 Ch. 96; Turner v. Heb-
11 Rich. (S. C.) 621. ron, 61 Conn. 175, 14 L. R. A.
3. Co. Litt. 4b, 122a; Johnson 386, 22 Atl. 951.
V. Barnes, L. R. 8 C. P. 527. 7. Hill v. Lord, 48 Me. 83; Sale
4. Post, § 385. V. Pratt, 19 Pick. (Mass.) 191.
§ 381] Profits a Prendre. 1389
or soil, sand and gravel tlierein.^ A right to take ice
has been regarded as a profit a prendre.^'^
A profit a prendre maj^ be exclusive of any right
in the land owner or in other persons to take that
l)arti(iilar profit, or it may not be so exclusive/' In
the case of an exclusive right of profit the one entitled
thereto, having begun the exercise thereof, has been
regarded to that extent as in possession of the land,
so as to be entitled to maintain an action of trespass
quare clausum fregit against a person interfering
therewith. ^*^
A profit a prendre, like an easement, may be
created to endure in perpetuity, that is, for the duration
of an estate in fee simple, or for a less period, such
as a term of years,^^ or it may even be terminable
at the will of either the land owner or the owner of
the profit. ^^^ —
A profit a prendre involves a right to do such
things on the land in which the right exists as are rea-
sonably necessary for the exercise of the right. Thus,
one to whom is given the right to take timber from land
may enter oh the land to do so,^^ and one given a
right to mine may cut through the soil for that purpose,
and erect necessary mining machinerj^^^a
8. MaxweU v Martin, 6 Bing. Rep. 329; Harker v. Birkbeck, 3
522; Blewett v. Tregonning, 3 Ad. Burr. 1556; Wilson v. Mackreth.
& El. 554; Constable v. Nicholson, 3 Burr. 1824; Crosby v. Wiads-
14 C. B. N. C. 230; Merwin v. worth, 6 East. 602; Holford v.
Wheeler, 41 Conn. 25; Wenger v. Bailey, 13 Q. B. 426; Fitzgerald
Clay Tp. 61 of St. Joseph County, v Firbank [1897] 2 Ch. 96.
61 Ind. App. 640, 112 N. E. 402; 11. Hooper v. Clark, L. R. 2
Perley v. Langley, 7 N. H. 233; Q. B. 200; Fitzgerald v. Firbank
Hopper V Herring, 75 N. J. L. (1897) 2 Ch. 96. Davis v. Miller-
212, 67 Atl. 714; Texas & P. Ry. Brent Lumber Co., 151 Ala. 580,
Co. V. Durrett, 57 Tex. 48. 44 So. 639.
8a. Mitchell v. D'Olier, 62 N. 11a. Christian v. Stlth Coal
J. L. 375, 59 L. R. A. 949, 53 Atl. Co., 189 Ala. 500, 66 So. 641.
467. Huntington v. Asher, 96 N. 12. Liford's Case, 11 Coke, 52a;
Y. 604. Leake, Prop, in Land, 349.
9. Post, § 383. 12a. Cardigan v. Armitage, 2
10. Burt V. Moore, 5 Terra Barn. & C. 197; Dand v. Kings-
2 R. P.— 13
1390 Eeal Property. [§ 381
That one has the exclusive right of hunting wild
fowl on another's land has been held not to affect the
right of the latter to drain or otherwise change the
land, provided he does this in good faith to improve the
land, though this detracts from the value of the
hunting privilege. ^^''
Right to take water. The right to take
water upon another's land from such a natural source
of supply as a pond or spring, has been regarded as
an easement and not a profit a prendre, on the theory
that the water does not belong to the owner of the
land on or by which it flows, and consequently the
grant of the right to take it, while valid in so far
as it gives an easement to jiass over the land to reach
the water, is a nullity as regards the water.^^ And
likewise, as the owner of land abutting on a natural
watercourse has no ownership of the water therein, '■^•'^ a
grant by him of the right to take water from the
stream would seem to involve merely the creation
of an easement. ^^'^ In so far as water on one's land
can be regarded as not puhlici juris, but as belonging
cote, 6 Mees. & W. 174; WiUiams 65 N. W. 911.
V. Gibson, 84 Ala. 228, 5 Am. St. In Turner v. Hebron, 61 Conn.
Rep. 368, 4 So. 350; Marvin v. 175, 14 L. R. A. 386, 22 Atl. 951,
Brewster Iron Min. Co., 55 N. Y. it was held that one person could
538, 14 Am. Rep. 322; Wardell own the water in a large pond,
V. Watson, 93 Mo. 107, 5 S. W. with the incidental right of fish-
605. ing therein, while another own-
12b. Isherwood v. Salene, 61 ed the bed of the pond.
Ore. 572, 40 L. R. A. (N. S.) 299, The view that a right to take
Ann. Cas. 1914B, 542, 123 Pac. vater is an easement rather than
49. a profit a prendre is perhaps not
13. Race v. Ward, 4 El. & Bl. entirely in accord with the cases
702; Manning V. Wasdale, 5 Adol. regarding a right to take ice
& E. 758; Hill v. Lord, 48 Me. 83. as a profit A prendre. Mitchell
Goodrich v. Burbank, 12 Allen v. D'Olier, 68 N. J. L. 375, 59
(Mass.) 459, 90 Am. Dec. 161. L. R. A. 949, 53 Atl. 467; Hunt-
See Legg V. Horn, 45 Conn. 409. ington v. Asher, 96 N. Y. 604.
But that water issuing from a 13a. Ante, § 339(a).
spring is private property, see 13b. Ante, § 352.
Metcalf V Nelson, 8 S. D. 87,
§ 381] Profits a Prendre. 1391
to him personally, as when it is accumulated by him in
a cistern or aqueduct,^^*^ since the water is not a part
of the land, the grant of such w^ater would be, not
the grant of a right of profit, but rather the grant
of a chattel, with an incidental right to come on the
land for the purpose of taking it, that is, using the
terminology of the older books, there is in such case a
license coupled with an interest.^^^ But in those
states in which water from natural streams is regu-
larly distributed by means of aqueducts and ditches
controlled by irrigation companies, contracts with such
companies are regarded as having "for their subject
matter the usufruct in the stream (and not the w^ater
itself) through the intermediate agency of the ditch,
affecting the water right in the stream from which the
ditch heads. So far as the water in the canal is per-
sonalty, it is personalty of the consumers as w^ell as
of the company, the company being chiefly the agent
of the consumers to make the diversion and carry the
water, "^^®
License privilege distinguished. One having
a profit a (prendre has a right, as against the mem-
])ers of the community generally, including the owner
of the land, that they shall not interfere with the
exercise or .enjoyment of the profit.'^ It is in this
respect that a license to sever particular things from
the land is to be distinguished from a profit a prendre,
the licensee having no right to freedom from inter-
ference by third persons or by the landowner himself,
the distinction between a license and a profit a prendre
l>eing in a general way similar to that between a
license and an easement.^ ^ It is as a result, it seems,
13c. Ante, § 339(a). umbia Law Rev. 251, 30 Harv.
13d. Ante, § 349(d). Law Rev. 297.
13e. Samuel C. Wiel, Esq., 14. See cases cited inle, this
article 22 Harv. Law Rev. at p. section, note 11.
213. See editorial notes, 13 Col- 15. ^nte, § 349(a).
1392 Eeal Pkoperty. [§382
of the absence of any duty on the part of the landowner
to refrain from interference with the exercise of the
license privilege that the license is revocable at the
pleasure of the licensor.
Not infrequently a landowner licenses another
to sever from the land some particular subject of profit,
with the intention that the license, on effecting such
severance, shall become the owner of the thing severed,
as for instance, when the landowner orally licenses
another to cut timber or remove minerals. In such
a case there is both a license to sever the wood or
minerals and an oral gift or sale of them, the gift or
sale taking effect, for the purpose of transferring the
owmership to the licensee, so soon as they become
chattels by reason of their severance. ^"^
§ 382. Rights in gross and appurtenant. Eights
to take profits from another's land may exist in gross,
— that is, they may be held by one independently of
his ownership of other land, the rule in this respect
differing in England from that usually regarded as
applying to easements, unattended with a right of
profit.^" They may, however, be appurtenant to other
land, the land to which the right ap])ertains being then
the "dominant tenement," and the land from which
the profits are taken being the ''servient 'tenement.'"^
16. Ante, § 261. 18. PhiHips v. Rhodes, 7 Mete.
17. Welcome v. Upton, 6 Mees. (Mass.) 322; Goodrich v. Bur-
& W. 536; Shuttleworth v. Le bank, 12 Allen (Mass.) 459, 90
Fleming, 19 C. B. (N. S.) 687; Am. Dec. 161; Huntington v.
Pierce v. Keator, 70 N. Y. 419, Asher, 96 N. Y. 604; Bingham v.
26 Am. Rep. 612; Tinicum Fish- Salene, 15 Ore. 208, 14 Pac. 523,
ing Co. V. Carter, 61 Pa. St. 21. 3 Am. St. Rep. 152; Grubb v.
100 Am. Dec. 597; Youghiogheny Grubb, 74 Pa. St. 25; Hall v. Law-
River Coal Co. V. Pierce, 153 Pa. rence, 2 R. I. 218, 57 Am. Dec.
St. 74, 25 Atl. 1026; Cadwalader 715; Chase v. Cram, 39 R. I. 83,
V. Bailey, 17 R. I. 495, 14 L. R. 97 Atl. 481, 802. And see cases
A. 300, 23 Atl. 20. Williams, Rights in notes following.
of Common, 184, 195, 203, 207.
§ 382]
Profits a Peendbe.
1393
A profit a prendre in gross is ordinarily regarded as
freely transferable and inheritable.^^ A profit a pren-
dre appurtenant passes prima facie upon a transfer of
the dominant tenement.^"''
A right of profit, in order that it may be appur-
tenant to other land, and pass therewith, must be in
some way connected with the enjoyment of the right of
property in the dominant tenement, and must be lim-
ited by the needs of the latter.^^" Consequently one
cannot claim as appurtenant to land owaied by him a
right to take all the wood which may grow on other
land, and dispose of it as he pleases,^*' or a right to
take turf or seaw^eed from other land, without regard
to the requirements of his own tenement.^ ^
Since a right of profit appurtenant is limited and
admeasured by the uses of the dominant tenement, it
follows that such profit cannot be separated from the
latter by a grant thereof to a third person without
the tenement.^^
19. Welcome v. Upton, 6 Mees.
& W. 536; Muskett v. Hill, 5
Eing. N. C. 694; Grubb v. Bayard,
2 Wall. Jr. 81; Gaston v. Plum,
14 Conn. 344; New Haven v.
Hotchkiss, 77 Conn. 168, 58 Atl.
753; Baker v. Kenney, 145 Iowa,
638, 139 Am. St. Rep. 456, 124 N.
W. 901; Harlow v. Lake Superior
Iron Co., 36 Mich. 105; Negaunee
Iron Co. V. Iron Cliffs Co., 134
Mich. 264, 96 N. W. 468; Boat-
man V. Lasley, 23 Ohio St. 614;
Tinicum Fishing Co. v. Carter, 61
Pa. St. 21, 100 Am. Dec. 597;
Cadwalader v. Bailey, 17 R. I.
498, 14 L. R. A. 300, 23 Atl. 20.
19a. Warrick v. Queen's Col-
lege, 6 Ch. App. 716; Hopper v.
Herring, 75 N. J. L. 212, 67 Atl.
714; Huff V. McCauley, 53 Pa. St.
209, 21 Am. Dec. 203; Grubb v.
Grubb, 74 Pa. St. 25.
19b. Chesterfield v. Harris
(1908), 2 Ch. 397; Hopper v. Her-
ring, 75 N. J. L. 212, 67 Atl. 714;
Pierce v. Keator, 70 N. Y. 419, 26
Am. Rep. 612.
20. Bailey v. Stephens, 12 C.
B. N. S. 91.
21. Valentine v. Penny, Noy,
145; Hall v. Lawrence, 2 R. I.
218. In Huntington v. Asher, 96
N. Y. 604, 48 Am. Rep. 652, it was
held that a right to cut ice on
land, and to store it in an ice
house on other land, might be
appurtenant to the land on which
the ice house was situated.
22. Drury v. Kent, Cro. Jac.
M; Hall v. Lawrence, 2 R. I. 218,
57 Am. Dec. 715; Baker v. Ken-
1394 Real Property. [§§ 383, 384
§ 383. Righis of common. The term ''common" is
frequently applied in England, especially by the older
writers, to a right of profit, as when they speak of
common of pasture, of estovers, of turbary, of piscary
(fishing), or of digging for coals, minerals, and the
like.^^ The word "common," applied in this connec-
tion, refers to the fact that the interest in the profits
is ''common," as between the person entitled to take
profits and either the owner of the land, or other owners
of like rights of profit in the same land.^^ Con-
sequently, the word is properly applied to any profit
a prendre which is not exclusive of like rights in
either the owner of the land or in a third person.
A right of profit, on the other hand, which is ex-
clusive of any rights in either the landowner or in a
third person to take similar profits from that particular
land, is usually referred to in the English books as a
"several" right, as in the case of a several right of
fishery or of pasture.^^
Common of turbary involves the right in common
with others, of digging turf on another's land, and
common of piscary the right of fishing on the land of
another, or, rather, in water on his land.^^ Common
of estovers involves the right of taking necessary wood
from another's land for use as firewood, or in repairs
on a house or farm.^^
§ 384. Rights of pasture. The most imjDortant
profit a prendre, historically considered, is that of pas-
turing cattle on another's land, usually referred to as
"common of pasture." Under the feudal system, the
ney, 145 Iowa, 638, 139 Am. St. Leake, Prop, in Land, 332.
Kep. 456, 124 N. W. 90L 25. Co. Litt. 122a; Williams,
23. Co. Litt. 122a; 2 Blackst. Rights of Common, 12, 18-30, 259-
Comm. 32, 34; Williams, Rights '^^^65.
of Common, passim. 26. Co. Litt. 122a; 2 Bl. Comm.
24. Co. Litt. 122a; 2 Pollock & 34; Smith v. Kemp. 2 Salk. 637.
Maitland, Hist. Eng. Law, 144; 27. 2 Bl. Comm. 35; Van Rens-
§ 384]
Profits a Peendke.
1395
right existed in favor of the tenants of the manor as re-
gards the waste land of the manor, — that is, the land
not allotted to tenants or reserved by the lord as de-
mesne land.^^
Common of pasture involves the placing of the
cattle on the land to eat the herbage, in this differing
from a right to take herbage from another's land by
cutting and transporting it.-^
Common of pasture might, at common law, be '^ ap-
pendant," ' 'appurtenant," "in gross," or "because of
vicinage." Common appendant existed, as before sug-
gested, in favor of each holder of arable land in a
manor, as appertaining to such land, and involved the
right to pasture, on the waste land of the manor, his
'' commonable" cattle. It could not be created after the
statute of Quia Eyiiptores, since a grant by the lord of
the manor thereafter took the land granted out of the
manor as regards tenure,"^'^ and cannot, of course, exist
selaer v. Radcliff, 10 Wend. (N.
Y.) 639. The right to take
fstovers from another's land must
be distinguished from the exclu-
sive right of a tenant for life
or years to take them from his
own land, which has been pre-
viously considered. See, onle, §
283, and 2 Blackst. Comm. 35,
Chitty's note.
28. This right in the tenants
of the manor to take profits
from the waste land probably ex-
isted, before the introduction of
feudalism into England, as a
right in the inhabitants of the
town or "vill" to utilize the lands
v.hich belonged to the community
i:s a whole. After the introduc-
tion of feudalism and of the man-
orial idea, these community lands
came to be regarded as bslonging
to the lord, and consequently the
right to take profits therefrom
was regarded as a right to profits
a prendre in another's land. The
community lands of the town or
vill were themselves a survival
of the "mark" system, which ex-
isted in all Aryan communities.
Digby, Hist. Real Prop. (5th Ed.)
192; Williams, Rights of Com-
mon, 37 et seq.: INIaine, Village
Communities, passim; 4 Kent,
Comm. 441, note by Hon. 0. W.
Holmes. In this country, traces
of the mark system are to be
found in the system of "com-
mons" or "common lands" which
existed in New Englanfl and also
in the Spanish and French settle-
ments. See post, § 418.
29. De la Warr v. Miles, 17
Ch. Div. 535; Potter v. North, 1
Saund. 353a, note; Williams,
Rights of Common, 21.
30. Leake, Piop. in Land, 337,
citing 2 Co. Inst. 85.
1396 Real Peopeety. [§ 385
in this country. Common "because of vicinage" was
a local custom of intercommoning, — that is, for cattle
to stray from one common to another adjacent com-
mon, without creating any liability for trespass.''^ It
was based on custom, and has never existed in this
country."^^ Common of pasture "appurtenant" and
"in gross" are rights of pasture annexed to a dominant
tenement, or belonging to a person and his heirs, the
terms being applied as in other cases of profits a
prendre,^^ and these may exist in this country.
§ 385. Mineral rights. A person may have a right
to take minerals from another's land in the nature of a
profit a prendre?"^ Such right to take minerals from
another's land must be carefully distinguished from
an estate in the minerals themselves which, as pre-
viously stated, may be separated, for purposes of
ownership, from the surface of the ground.^^ A grant
of the right to take minerals from another's land is not
31. Co. Litt. 122a; 2 Blackst. Comm. 33.
Comm. 33. 34. Doe d. Hanley v. Wood, 2
S2. A right of common, some- Barn. & Aid. 738; Muskett v. HiU,
times, perhaps, termed "common 5 Bing. N. C. 694; Rutland Marble
of vicinage," has been occasional- Co. v. Ripley, 10 Wall. (U. S.)
ly asserted in jurisdictions where 339, 19 L. Ed. 955; Smith v.
the owner of cattle is not bound Cooley, 65 Cal. 46, 2 Pac. 880;
to prevent them from trespassing Baker v. Hart, 123 N. Y. 470, 12
on unfenced land belonging to L. R. A. 60, 25 N. E. 948; Clem-
others (see Davis v. Gurley, 44 ent v. Youngman, 40 Pa. St.
Ga. 582), but the right to allow 'iAl; Chartiers Block Coal Co. v.
one's cattle to roam over un- Mellon, 152 Pa. St. 286, 18 L. R.
fenced lands belongs, in those A. 702, 34 Am. St. Rep. 645, 25
jurisdictions, to everybody, and, Atl. 597.
as clearly decided, constitutes in 35. Wilkinson v. Proud, 11
no sense a right of common of Mees. & W^. 33; Caldwell v. Ful-
pasture (Harrell v. Hannum, 50 ton, 31 Pa. St. 475; Baker v.
Ga. 508). See Smith v. Floyd, 18 Hart, 123 N. Y. 470, 12 L. R. A.
Barb. (N. Y.) 522; Thomas v. 60, 25 N. E. 948; Smith v. Cooley.
Marshfield, 13 Pick. (Mass.) 240. 65 Cal. 46, 2 Pac. 880. See ante, §
33. Co. Litt. 122a; 2 Blackst. 253.
§ 386] Pkofits a Pkendee. 1397
exclusive of the right of the owner of the land also to
take them, unless it is so expressed."" A right to take
oil or gas from land in which the person so entitled has
no right of ownership is likewise, though not always
expressly so stated, a right of profit a prendre.^'^ Fre-
quently what is properly a profit a prendre as regards
minerals in land, that is, a power of a more or less
permanent character to take as one's own minerals in
the land, is referred to as a mining license,"^ the im-
portant distinction, before referred to, between a profit
a prendre and a license,^'' being thus ignored.
§ 386. The creation of rights. A profit a prendre
may, like an easement, be acquired by either grant or
prescription. Since the grant of such a right involves
a transfer of an interest in land, it must be created by
writing, and a seal is necessary to the validity of the
grant at common law.^° An attempted grant of a
profit a prendre, if invalid as being merely oral, or, it
would seem, as wanting a seal, creates a license merely,
which may be revoked at any time,^^ but by reason of
36. Stockbrldge Iron Co. v. 57 Pa. St. 446; Boone v. Stover,
Hudson Iron Co., 107 Mass. 290; 06 Mo. 430; Silsby v. Trotter, 29
Massot V. Moses, 3 Rich. (S. C.) N. J. Eq. 228; East Jersey Iron
168; Harlow v. Lake Superior Co. v. Wright, 32 N. J. Eq. 248;
Iron Co., 36 Mich. 105; Silsby v. Painbridge, Mines (5th Ed.) 280
Trotter, 29 N. J. Eq. 228; Grubb t'^ seq.; MacSwinney, Mines, c. 12.
V. Bayard, 2 Wall. Jr. 81, Fed. and authorities cited, onte, § 254.
Cas. No. 5,849; Funk v. Halde- 39. Ante, § 381, notes 14-16.
man, 53 Pa. St. 229; Mountjoy's 40. Hopkins v. Robinson, 2
Case, Co. Litt. 164b. Lev. 2; Somerset v. Fogwell, 5
37. See Brown v. Spilman, 155 Barn. & C. 875; Holford v. Bailey,
U. S. 665, 39 L. Ed. 304; Union 13 Q. B. 426; Taylor v. Millard,
Petroleum Co. v. Bliven Petro- 118 N. Y. 244, 6 L. R. A. 667. 23
Icum Co., 72 Pa. St. 173; Duffield N. E. 367; Karaphou&e \. Gaffner,
V. Rosenzweig, 144 Pa. St. 520, 2;: 73 111. 453; Boone v. Stover, 66
Atl. 4. Mo. 430; McBee v. Loftis, 1 Strob.
38. See Stockbridge Iron Co. Eq. (S. C.) 90.
V. Hudson Iron Co., 107 Mass. 41. Williams v. Morrison (C.
290, 322; Kamphouse v. Gaffner, C.) 32 Fed. 177; Wheeler v. West,
73 111. 453; Neumoyer v. Andreas, 71 Cal. 126, 11 Pac. 871; Kamp-
1398 Real Property. [§ 387
tlie making of improvements by the intended grantee on
the faith thereof the intending grantor may be estop-
ped to deny the validity of the grant,^- as in the case
of an invalid grant of an easement.'^^
A profit a prendre may also, like an easement, be
created by words of exception or reservation,^^*^
A right of profit may be acquired by prescription,
provided the taking during the prescriptive period was
limited to the requirements of a particular dominant
tenement.^^ But there can be no prescriptive right of
profit in the public."*^
§ 387. AppofTtionment and extinction. A profit
a prendre in gross cannot be assigned in portions to
different persons, so that each of the assignees may
exercise it separately, but all the assignees must exer-
cise it in common; this being on the theory that other-
wise the land would b« injured as a result of the taking
of profits therefrom by numerous persons.^® Some
rights of common appurtenant, such as those of esto-
vers, are not apportionable on the severance of the
dominant tenement by the conveyance of a part thereof,
since this would increase the amount of profits to be
house V. Gaffner, 73 IH. 453; Des- P. Co., 207 N. Y. 34, 100 N. E.
lege V. Pearce, 38 Md. 588; Huff 434; Tuscorara Club of Mil-
V. McCauley, 53 Pa. St. 206. brook v. Brown, 215 N. Y. 543,
42. Kamphouse v. Gaffner, 73 109 N. E. 597.
III. 453; Huff v. McCauley, 53 Pa. 44. Dowglas v. Kendall, Cro.
St. 206. Jac. 256; Cowlan v. Slack, 15
43. Ante, § 349(d), notes 44- East, 108; Ackroyd v. Smith, 10
49. C. B. 164; Bailey v. Stephens, 12
43a. Stockbridge Iron Co. v. C. B. N. S. 91; Harris v. Chester-
Hudson Iron Co., 107 Mass. 290; field (1911), App. Cas. 623; Hill
Warden v. Watson, 93 Md. 107, 5 v. Lord, 48 Me. 83; Morse v. Mar-
S. W. 605; Alden's Appeal, 93 Pa. shall, 97 Mass. 519; Perley v.
St. 182; Pierce v. Keator, 70 N. Langley, 7 N. H. 233.
Y. 419. 45. Post, § 419.
That a reservation is ineffec- 46. Mountjoy's Case, Co. Lift,
tual to create a proiit a prendre 164b; Chetham v. Williamson, 4
in favor of a third person, see East, 469; Funk v. Haldeman, 53
Beardslee v. New Berlin, L. & Pa. St. 229, 244; Harlow v. Lake
§ 387] Profits a Peendee. 1399
taken, and, consequently, as neither of the persons
between whom the land is divided is entitled to the
l-irofits, the right thereto is entirely extinguished by
such a conveyance.*' But where a right of common is
admeasurable according to the area of the dominant
tenement, the common may be apportioned to the
several parts of the dominant tenement upon its
severance, the burden on the servient tenement not
being increased thereby. Such is the case where
there is a right to pasture such cattle as may be
kept on the dominant tenement, or to take such herb-
age as may be used thereon, and the alienee of a
part of the dominant tenement is entitled to a right of
common proportioned to the extent of his grant.^^
A profit a prendre is extinguished by a release
thereof to the owner of the servient tenement.*^ If the
titles to the dominant and servient tenements become
united in one person, he having an equal estate in both,
the right of common or profit is extinguished, since a
man cannot have a right of profit in his o^vn land.^*^
And the same result no doubt follows if the owner of
a right of profit in gross acquires a fee-simple estate
in the servient tenement.
Even though a right of profit or common is appor-
tionable, if separate parts of the land subject thereto
are held by different tenants, the right is extinguished
in case the owner of the dominant tenement releases a
Superior Iron Co., 36 Mich. 105, rence, 2 R. I. 218, 57 Am. Dec.
121. 715; Van Rensselaer v. Radcliff,
47-. Van Rensselaer v. Rad- 10 Wend. (N. Y.) 639.
cliffe, 10 Wend. (N. Y.) 639, 2r) 49. Litt. § 480; Co. Litt. 280a;
Am. Dec. 582; Livingston v. 2 Leake, 355.
Ketchum, 1 Barb. (N. Y.) 592; 50. Tyrringham's Case, 4 Coke,
Hall V. Lawrence, 2 R. I. 218, 57 38a; Bradshaw v. Eyre, Cro. Eliz.
Am. Dec. 715; Bell v. Ohio & P. 570; Rex v. Inhabitants of Her-
R. Co., 25 Pa. St. 161, 64 Am. mitage, Carth. 239; Saundeys v.
Dec. 687. Oliff, Moore, 467; Hall v. Law-
48. Co. Litt. 122a; Tyrring- rence, 2 R. I. 218, 57 Am. Dec.
ham's Cas, 4 Coke, 37a; Wild's 715.
Case, 8 Coke, 78b; Hall v. Law-
1400
Real. Property.
[§ 387
])art of such land from the burden of the profit,^^ or if
the dominant tenement and a part of the servient land
become the property of one man;''- since, otherwise, the
burden upon the other parts would be increased.
51. Rotherham v. Green, Cro. I.eon. 43; Livingston v. Te*
Eliz. 593; Hall v. Lawrence, 2
R. L 218, 57 Am. Dec. 715; John-
son V. Barnes, L. R. 7 C. P. 592,
600.
52. Kimpton v. Bellamyes, 1
Broeck, 16 Johns. (N. Y.) 14, 8
Am. Dec. 287; Hall v. Lawrence,
2 R. I. 218, 57 Am. Dec. 715; BeU
V. Ohio & P. R. Co., 25 Pa. St.
161, 64 Am. Dec. 687.
CHAPTER XIV.
COVENANTS RUNNING WITH THE LAND.
§ 388. General considerations.
389. Tlie running of benefits.
390. The runnings of burdens.
391. Privity of estate.
392. The nature of the covenant.
393. Party wall agreements.
§ 388. General considerations. Covenants with
the owner of hind, which are calculated to render its
enjoyment more beneficial, may in some, if not all,
cases, be enforced by a subsequent owner of the land;
and, on the other hand, covenants made by the o^^^ler
of land, restricting in some mode the freedom of its
enjoyment, may, by some authorities, be enforced against
a subsequent owner of the land. Covenants the benefit
or burden of which may thus pass to subsequent own-
ers of the land are said to "run with the land."
Rights created by such covenants in favor of or against
transferees of the land are strictly in personam, and
not in rem; but as incidents of the land, following it
into the hands of subsequent owners, they are some-
what similar in effect to proprietary rights in another's
land such as have been previously discussed, and ac-
cordingly call for consideration in this connection.
That covenants in connection with leases run in
favor of or against the owner of an estate for life or
for years created by the lease, or of the reversion
expectant on such estate, is determined, or at least
confirmed, by the provisions of the statute of 32
Hen, VIII. *c. 34. The terms and effect of this statute
having been already cons^^dered,' the running of cove-
nants made by or with the owner of land in fee simple
not in connection with a lease, will alone be here dis-
cussed.
(1401)
1402 Eeal Peopeety. [§ 388
These questions of the assignment of contractual
benefits and liabilities by the transfer of the land in con-
nection with which the contract was made have usually
been considered in connection with "covenants," strict-
ly so called, that is, contracts under seal. In England,
owing to the general practice of sealing formal legal in-
struments affecting land, the question of the running of
a contract not under seal appears not to have been the
subject of judicial determination, so far as appears ; and
the fact that the running of covenants in leases was,
by the statute of 32 Hen. 8, expressly confined to
covenants in indentures of lease may well have tended
to confirm the view that in no case can an agreement
not under seal run with the land. In this country
there are one or two decisions that a contract not
under seal will not run with the land- and at least one
case indicative of a contrary view.^ In any state
in which private seals have been abolished or their
efficacy destroyed, the fact that a contract is or is
not under seal is obviously immaterial upon the ques-
tion whether it runs with the land.
In the case of a deed poll,— that is, an instrument
sealed by one only of the parties thereto, — a stipula-
tion therein on the part of the person not sealing it
is, by the weight of authoritj^ regarded as the covenant
of such person by reason of his acceptance of the
conveyance,* though there are well-considered opinions
1. Ante, § 56(a). 114 N. E. 692.
2. Martin v. Drinaii, 128 Mass. 4. Co. Litt. 230b, Butler's
515; Kennedy v. Owen, 136 Mass. note; Sheppard's Touchstone,
199; Poage v. Wabash, St. L. & 177; Georgia Southern R. Co. v.
P. Ry. Co., 24 Mo. App. 199. Reeves, 64 Ga. 492; Sanitary Dis-
3. Burbank v. Pillsbury, 4S N. trict of Chicago v. Chicago Title
H. 475. That an oral contract & Trust Co., 278 111. 529, 116 N.
will not run, see St. Louis, A. & E. 161; Midland Ry. Co. v. Fisher,
T. H. R. Co., V. Todd, 36 111. 409; 125 Ind. 19, 8 L. R. A. 694, 21 Am.
Guilfoos V. N. Y. Cent. R. Co., 69 St. Rep. 189, 24 N. E. 758; Sex-
Hun (N. Y.) 593, 23 N. Y. Supp. auer v. Wilson, 136 Iowa, 357, 14
925; Bartlett v. State, — Ind. — , L. R. A. (N. S.) 185, 15 A. & E.
§ 389]
Covenants Running With Land.
1403
to the contrary.^ In order to create a covenant, neither
the word "covenant," nor any other particular word,
is necessary,^ and words of condition are frequently,
as before stated, construed as words of covenant/
Moreover, words of covenant have been sometimes
construed as creating, not a covenant, but an ease-
ment,^ or a charge on the land in the nature of a
lien.9
§ 389. The running of benefits. That the right to
sue upon a covenant relating to land may pass to a
subsequent owner of the land, claiming under the
covenantee, by reason merely of the conveyance of the
land, is generally conceded.^*' Such a covenant is usually
Ann. Cas. 54, 113 N. W. 941; Ken-
tucky Cent. R. Co. v. Kenney, 82
Ky. 154 (semble) ■ Poage v. Wa-
bash, St. L. & P. Ry. Co., 24 Mo.
App. 199; Burbank v. Pillsbury,
48 N. H. 475, 97 Am. Dec. 633;
Finley v. Simpson, 22 N. J. L.
311, 53 Am. Dec. 252; Hagerty
V. Lee, 54 N. J. L. 580, 20 L. R. A.
C31, 25 Atl. 319; Atlantic Dock
Co. V. Leavitt, 54 N. Y. 35, 13
Am. Rep. 556; Bowen v. Beck, 94
N. Y. 86, 46 Am. Rep. 124; May-
nairl v. Moore, 76 N. C. 158 {sem-
ble) ; Riug V. Mayberry, 168 N.
C. 563, 84 S. E. 846; Hickey v.
Lake Shore & M. S. Ry. Co., 51
Ohio St. 40, 23 L. R. A. 396, 46
Am. St. Rep. 543, 36 N. E. 72;
Doty V. Chattanooga Union Ry.
Co, 103 Tenn. 564, 53 S. W. 944,
48 L. R. A. 160, 6 L. R. A. (X. S.)
436.
5. Piatt, Covenants, 10; Hins
dale V. Humphrey, 15 Conn. 431;
Stabler v. Cowman, 7 Gill & J.
(Md.) 284; Western Md. R. Co.
V. Orendirff, 37 Md. 335; Newell
V. Hill, 2 Mete. (Mass.) 180;
Martin v. Drinan, 128 Mass. 515;
Kennady v. Owen, 136 Mass. 199;
Maule V. Weaver. 7 Pa. St. 329;
First Congregational Meeting
House Soc. V. Town of Rochestei ,
66 Vt. 501, 29 Atl. 810.
6. Piatt, Covenants. 28; Har-
tung V. Witte, 59 Wis. 285, 18 N.
W. 175; Midgett v. Brooks, 34 N.
C. 145, 55 Am. Dec. 405; Taylor
V. Preston. 79 Pa. St. 436; Trull
v. Eastman, 3 Mete. (Mass.) 121;
Electric City Land & Improve-
ment Co. V. West Ridge Coal Co.,
187 Pa. St. 500, 41 Atl. 458.
7. Ante, § 79.
8. Ante, § 361.
9. Fresno Canal & Irrigation
Co. V. Rowell, 80 Cal. 114, 13 Am.
St. Rep. 112, 22 Pac. 53; Howard
Mfg. Co. V. Water Lot Co., 53 Ga.
689; Martin v. Martin. 44 Kan.
iP5, 24 Pac. 418; Goudy v. Goudy,
Wright (Ohio), 410.
10. Pollock, Contracts (Willis-
ton's Ed.), 300; Sims, Covenants
Running with Land, 136; Fergu-
1404
Real Property.
[^ 389
made by the grantor or grantee of land as an incident
of the conveyance, that is, by one who has some
relation to the title. The question has, however,
occasionally arisen whether one who is neither a
grantor nor grantee of the land may make a covenant
with the owner thereof, the benefit of which will pass
to a subsequent owner of the land, that is, whether
the benefit of a covenant may run, though there is
lacking what is ordinarily referred to as *' privity of
estate" between the covenantor and covenantee. The
authorities are about equally divided upon the ques-
tion. ^^ Apart, however, from any question of cove-
nants running wdth the land, the transfer of the land
might be construed as intended to pass the right of
action for subsequent breaches of the covenant, that
son V. Omaha & S. W. R. Co., 227
Fed. 513, 142 C. C. A. 145; St.
Louis, I. M. & S. Ry. Co. v.
O'Baugh, 49 Ark. 418, 5 S. W.
711; Sterling Hydraulic Co. v.
Williams, 66 111. 393; Peden v.
Chicago, R. I. & P. Ry. Co., 73
Iowa, 328, 5 Am. St. Rep. 680, 35
N. W. 424; Gaines' Adm'x v. Poor,
3 Mete. (Ky.) 503, 79 Am. Dec.
559; Leader v. La Flamme, 111
Me. 242, 88 Atl. 859; Maryland
Coal Co. V. Cumberland & Penn-
sylvania R. Co., 41 Md. 343; Na-
tional Union Bank at Dover v.
Segur, 39 N. J. L. 173; Vjntnor
Investment Co. v. Record Devel.
Co. (N. J. Ch.), 80 Atl. 952; Raby
V. Reeves, 112 N. C. 688, 16 S.
E. 760; Ford v. Oregon Electric
R. Co., 60 Ore. 278, 36 L. R. A.
(N. S.) 358, Ann. Cas. 1914A, 280,
117 Pac. 809.
11. That the benefit will pass
with the land in such case, see
Pollock, Contracts (7th Ed.) 237,
note; Holmes, The Common Law,
405; 1 Smith's Leading Cases (8th
u\m. Ed.) at p. 176; Shaber v. St.
Paul Water Co., 30 Minn. 179, 14
N. W. 874; Dickinson v. Hoomes'
Adm'r, 8 Grat. (Va.) 353 (dic-
tum) ; Gaines' Adm'x v. Poor, 3
Mete. (Ky.) 503, 79 Am. Dec. 559;
Rawle, Covenants, § 203, note.
The contrary view is taken in
Sims, Covenants Running with
the Land, 196; Sugden, Vendors
(14th Ed.) 584 et seq,; Mygatt v.
Coe, 124 N .Y. 212, 11 L. R. A.
646, 26 N. E. 611, 147 N. Y. 456,
42 N. E. 17; Lyon v. Parker, 45
Me. 474; Hurd v. Curtis, 19
Pick. (Mass.) 459 {dictum) Pack-
enham's Case, Y. B. 42 Edw. Hi.
3, pi. 14 (translated in Rawle,
Covenants, § 203, note), is cited
on both sides of the discussion, —
a not unnatural result of the ob-
scurity of the report.
§ 390]
Covenants Running With Land.
1405
is, as involving an assignment of a cliose in action,
within the modern statutes and rules in that regard.^^"^
§ 390, The running of burdens. In England it is
apparently the law that the burden of a covenant by
the owner of land in fee simple, made with one other
than his lessee, will not run so as to be enforceable
against a transferee of the land.^^ In this country,
on the other hand, there are a number of decisions
to the effect that covenants by the owner of land
will bind transferees of the land,^-^ though in a few
lla. See 1 Tiffany, Landlord &
Ten. p. 885. That transfer of
the land after breach does not
transfer the right of action for
such breach, see Gulf Coast &
Coke Co. V. Musgrove, 195 Ala.
219, 70 So. 179.
12. Pollock, Contracts (7th
Ed.) 237; 1 Smith, Lead. Cas.
(10th Ed.) 75-85. See Brewster
V. KidgUl, 12 Mod. 166; Brew-
.ster V. Kitchin, 1 Ld. Raym. 317;
Keppel V. Bailey, 2 Mylue & K.
517; Austerberry v. Corporation
of Oldham, 29 Ch. Div. 750.
13. Robbins v. Webo, 68 Ala.
393; Gilmer v. Mobile, & M. R.
Co., 79 Ala. 569; Alderson v. Cut-
ting, 163 Cal. 503, 126 Pac. 157
(semble) ; Hottell v. Farmers'
Protective Ass'n, 25 Colo. 67, 71
Am. St. Rep. 109, 53 Pac. 327;
Georgia Southern R. Co. v. Reeves,
64 Ga. 492; Dorsey v. St. Louis
A., &.T. H. R. Co., 58 111. 65.;
Fitch v. Johnson, 104 111. Ill;
Hazlett V. Sinclair, 76 Ind. 488,
40 Am. Rep. 254; Conduitt v.
Ross, 102 Ind. 166, 26 N. E. 198;
Sexauer v. Wilson, 136 Iowa, 357,
14 L. R. A. (N. S.) 185, 15 A.
2 R. P.— 14
& E. Ann. Cas. 54, 113 X. W. 941;
Ranney v. Childs, 96 Kan. 483,
152 Pac. 621; Sutton v. Head, 86
Ky. 156, 9 Am. St. Rep. 274, 5 S. W.
410; Chesapeake & Ohio Ry. Co.
V. May, 157 Ky. 708, 163 S. W.
1112. De Logny's Heirs v. Mercer,
43 La. Ann. 205 (semble); Leader
v. La Flamme, 111 Me. 242, 88
Atl. 859; Phoenix Ins. Co. v. Con-
tinental Ins. Co., 87 N. Y. 400
(dictum); Dexter v. Beard, 130
X. Y. 549, 29 X. E. 983; Denman
V Prince, 40 Barb. (N. Y.) 213;
Dey V. Prentice, 90 Hun (X. Y.)
27, 35 X. Y. Supp. 563; Easter v.
Little Miami R. Co., 14 Ohio St.
48 (dictum) ; Huston v. Cincin-
nati, & Z. R. Co., 21 Ohio St.
236; Pittsburg, C. & St. L. Ry.
Co. V. Bosworth, 46 Ohio St. 81,
2 L. R. A. 199, 18 X. E. 533
(dictum); Hickey v. Lake Shore,
& M. S. Ry. Co., 51 Ohio St. 40,
2.3. L. R. A. 396, 46 Am. St. Rep.
545, 36 N. E. 672 (dictum) St.
Andrews' Church Appeals, 67 Pa.
St. 512; Landell v. Hamilton, 175
Pa. St. 327, 34 L. R A. 227, 34
Atl. 663; Electric City Land & Im-
provement Co. V. West Ridge Coal
1406
Real Property.
[§ 390
states the English view appears to have been adopted/'*
Occasionally a covenant of an affirmative character
appears to have been regarded as enforcible in equity,
on the same theoiy on which negative or restrictive
Co., 187 Pa. St. 500, 41 Atl. 458;
Wooliscroft V. Norton, 15 Wis.
198. Crawford v. Witherbee, 77
Wis. 419, 9 L. R. A. 561, 46 N. W.
545.
14. West Virginia Transpor-
tation Co. y Ohio River Pipe Line
Co., 22 W. Va. 600; Brewer v.
MarshaH, 18 N. J. Eq. 337, 19
N. J. Eq. 537 (dictum) ; Tardy
V. Creasy, 81 Va. 553, 59 Am. Rep.
676; Costigan v Pennsylvania R.
Co., 54 N. J. L. 233, 23 Atl. 810;
Lynn v. Mount Savage Iron Co.,
34 Md. 603 (semble).
It has been said quite recently,
by the New York Court of Ap-
peals, that the burden of a cov-
enant will not ordinarily run with
the land, two or three covenants
being however referred to as ex-
ceptions to this rule. Miller v.
Clary, 210 N. Y. 127, 103 N. E.
1115. Compare IMorehouse v.
Woodruif, 218 N. Y. 494, 113 N. E.
512.
In Massachusetts, apart from
the cases of landlord and tenant,
the burden of a covenant will not
run with the land, as a general
rule, it has been said, unless "the
(covenant either creates a ser-
vitude or a restriction in the
nature of a servitude in favor
of a neighboring parcel, or else
is in some way incident to and
inseparable from such a servi-
tude; or, if attached to the dom-
inant estate, appears to be the
quid pro quo for the easement
enjoyed." Holmes, S. J., in Lin-
coln V. Burrage, 177 Mass. 378, 52
L. R. A. 110, 59 N. E. 67;. Com-
pare Norcross v. James, 140 Mass.
188, 2 N. E. 946. Morse v. Aldrich,
19 Pick. (Mass.) 449, and Bronson
v. Coffin, 108 Mass. 175, 118 Mass.
156, 11 Am. Rep. 335, which seem
to favor the running of the bur-
den. The later decisions in this
state upon this subject, especially
those in which the opinion of the
court was delivered by Holmes,
C. J., are in accord with the views
expounded by him in his work
"The Common Law," pp. 392-406.
14. Gilmer v. Mobile, & M. Ry.
Co., 79 Ala. 569, 58 Am. Rep.
623; Bartlett v. State, — Ind.
— , 114 N. E. 692; Louisville H.
& St. L. Rwy Co. V. Baskett, —
(Ky.) — , 121 3. W. 957; Kneale
V. Price, 29 Mo. App. 227; Bur-
bank V. Pillsbury, 48 N. H. 475;
Pittsburg C, & St. L. Ry. Co. v.
Bosworth, 46 Ohio St. 81, 2 L. R.
A. 199, 18 N. E. 533.
In Carnegie Realty Co. v. Caro-
lina C, & 0. Ry. Co., 136 Tenn.
300, 189 S. W. 371, it was held
that a transfer did not impose
the burden of the covenant on the
transferee if the latter did not
make any claim under the trans-
fer and did not take possession.
This does not accord with the
view ordinarily asserted in con-
nection with the running of cov-
enants in leases. See 1 Tiffany.
I^andlord & Ten., p. 975.
<^ 391] CovEXANTs RuxNixG WiTH Land. 1407
covenants are so regarded, as against a purchaser
with notice of the covenant. ^^'^
The fact that the burden of a covenant passes
to the transferee is not, it would seem, sufficient in
itself to relieve the original covenantor from liability
thereon, the same principle being applicable as in
the case of landlord and tenant.^^ In several cases,
however, the covenantor has been regarded as immune
from liability for violations occurring after he has
parted with title, on a construction of the language
to this effect, as being in accord with the presumable
intention of the parties to the covenant.^**
While ordinarily the cases do not assert any re-
quirement that the transferee of land have notice of
a covenant made by a previous o^^^ler, in order that
he may be bound thereby, they occasionall}' do so ;^*^^
and the courts, it is conceived, would be reluctant to
impose liability upon one under a covenant of which he
had neither actual or constructive notice. Usually
the transferee of land would be chargeable with notice
of the covenant by reason of the fact that it occurs in
a conveyance in the chain of title, or in a conveyance
of adjoining land made by a previous owner whose
name appears in the chain of title.
§ 391. Privity of estate. In order that the burden
of a covenant run with the land, there must be, it is
generally stated, a "i)rivity of estate" between the
covenantor and covenantee. ^'^ This expression, as used
14a. Post, § 395, note 17. 124 N. Y. 120, 21 Am. St. Rep.
15. See cnte, § 54(d). 652, 26 N. E. 275; BoUes v. Pecos
16. Carr v. Lowry's Adm'x, 27 Irrig. Co., — N. Mex. — , 167 Pac.
Pa. St. 257; Rickey v. Lake Shore 280.
& M. S. Ry. Co., 51 Ohio St. 40, 16a. See cases cited Post, §
23 L. R. A. 396, 46 Am. St. Rep. 393, note 76.
545, 36 N. E. 672; Sexauer v. Wil- 17. Spence v. Mobile, & M. Ry.
son, 136 Iowa, 357, 14 L. R. A. Co., 79 Ala. 576; Hiazlett v. Sin-
(N. S.) 185, 15 A. & E. Ann. Cas. clair, 76 Ind. 488, 40 Am. Rep.
54, 113 N. W. 941; Clark v. Devoe, 254; Lyon v. Parker, 45 Me. 474;
1408
Real Peoperty.
H 391
in connection with covenants, other than in leases,
running with estates in fee simple, refers apparently
to the relation between the grantor and grantee of such
an estate at the time of the conveyance. In other
words, in order that there be such privity of estate that
the burden of a covenant may run, the covenant must
be entered into at the time of the making of a con-
veyance by the covenantee to the covenantor, or vice
versa^^ Accordingly, except perhaps in two or three
states,^^ the requisite privity exists in the case of a
covenant by a grantor to do or not to do something on
land retained by him, adjoining that conveyed, so that
one to whom the former is subsequently conveyed by
him may be bound by the covenant;-^ and it also exists
Hurd V. Curtis, 19 Pick. (Mass.)
459; Morse v. Aldrich, 19 Pick.
(Mass.) 449; Bronson v. Coffin,
108 Mass. 175, 118 Mass. 156, 11
Am. Rep. 254; Sharp v. Cheatham,
88 Mo. 498; Wheeler v Schad, 7
Nev. 204; Cole v. Hughes, 54 N.
Y. 444; Nye v. Hoyle, 120 N. Y.
195, 24 N. E. 1; Easter v. Little
Miami R. Co., 14 Ohio St. 48.
Town of Middletown v. Newport
Hospital, 16 R. I. 319, 15 Atl.
800; Hurxthal v. St. Lawrence
etc., Co., 53 W. Va. 87, 97 Am. St.
Rep. 954, 44 S. E. 520.
18. Gilmer v. .Mobile, & M. R.
Co., 79 Ala. 569; Fresno Canal &
Irrigation Co. v. Rowell, 80 Cal.
114, 13 Am. St. Rep. 112, 22 Pac.
53; Conduitt v. Ross, 102 Ind.
166, 26 N. E. 198; Indianapolis
Water Co. v. Nulte, 126 Ind. 373,
26 N. E. 72; Louisville, H. & St.
L. Ry. Co. V. Baskett, — Ky. — .
121 S. W. 957; Smith v. Kelley, 56
Me. 64; Burbank v. Pillsbury, 48
N. H. 475; Harsha v. Reid, 45
N. Y. 415; Lawrence v. Whitney,
115 N. Y. 410, 5 L. R. A. 417,
22 N. E. 174; Louisville & N.
R Co V Webster, 106 Tenn. 586.
61 S. W. 1018.
19. /'o.vf, this section, note 28.
20. Fitch V. Johnson, 104 111.
Ill; Scott V. Burton, 2 Ashm.
(Pa.) 324; Crawford v. Witherbee,
77 Wis. 419, 9 L. R. A. 561, 46 N.
W. 545; Bronson v. Coffin, 108
Mass. 175, 11 Am. Rep. 335; Haz-
lett v. Sinclair, 76 Ind. 488, 40
Am. Rep. 254; Easter v. Little
Miami R. Co., 14 Ohio St. 48.—
the last three cases, however, in-
volving covenants by the grantor
to fence, which might be regarded
as involving the grant of an ease-
ment. See ante, § 357.
It is to be observed that the
burden of the covenant does not
necessarily pass with the land in
connection with which the privity
arises; that is, in the case re-
ferred to in the text, the privity
arises in connection with the land
first conveyed, while the burden
of the covenant runs with that
<^ 391] Covenants Running With Land. 1409
in the more ordinary case of a covenant by the grantee
of land as to something to be done or not to be done
by him on the land conveyed, so that his subsequent
transferee may be bound thereby. On the other hand,
an agreement by various mill owners as to the use of
■water will not bind their assigns, since there is no
privity between them.-^ And a covenant made after
a conveyance, though between the parties thereto,
has been held not to be supported by such privity of
estate that the burden will run.^^
The exact basis of this requirement that the
parties to the covenant stand in the relation of grantor
and grantee in order that the covenant may run,
does not clearly appear.--'' As before indicated, by
some authorities, such a requirement exists in order
that even the benefit of a covenant may run.^^ In the
case of a covenant in a lease, the running of the
covenant is ordinarily, as we have before seen, closely
associated with the existence of a privity of estate
between the interested parties,^^ and this may have
last conveyed. See Brewer v. Cal. 476, with which, however,
Marshall, 18 N. J. Eq. 337, 19 N. Fresno Canal & Irrigation Co. v.
J. Eq. 537; Waterbury v. Head, Rowell, 80 Cal. 114, 13 Am. St.
12 N. Y. St. Rep. 361; Clark v. Rep. 112, 22 Pac. 53, does not
Devoe, 124 N. Y. 120, 21 Am. St. appear to be in accord.
Rep. 652, 26 N. E. 275, as ex- 22. Inhabitants of Plymouth v.
plained in Dexter v. Beard, 130 Carver, 16 Pick. (Mass.) 183;
N Y. 549, 29 N. E. 983. Smith v. Kelley, 56 Me. 64. Wheel-
21. Kurd V. Curtis, 19 Pick. er v. Schad, 7 Nev. 204. But if
(Mass.) 459; Lawrence v. Whit- the covenant and conveyance are
ney, 115 N. Y. 410, 5 L. R. A. parts of the same transaction, the
417, 22 N. E. 174. In Pennsyl- fact that they are in separate
vania it is held that the require- instruments is immaterial. Sims
ment of privity is subject to ex- Covenants, 198; Hills v. Miller,
ceptions, and that, without any 3 Paige (N. Y.) 254; Robbins v.
such privity, covenants by owners Webb, 68 Ala. 393 (semble.)
of separate tracts of riparian land 22a. See a suggestive editorial
as to the use of the water power note in 15 Columbia Law Rev.
will bind their assignees. Horn v. at p. 55.
Miller, 136 Pa. 640, 9 L. R. A. 23 See ante, § 389, note 11.
810, 20 Atl. 706. To the same 24. Ante, § 56.
effect, see Weill v. Baldwin, 64
1410 Real Property. [§ 391
operated to suggest that in no case can tlie burden of
a covenant run in tlie absence of such privity.^-^ Privity
of estate, however, as between a grantor and grantee
in fee simple has a meaning different from that which
it has as between lessor and lessee, and their suc-
cessors in interest. In the latter case, privity of
estate means the simultaneous ownership by both
parties of estates in the land, while in the former case
it can mean merely succession in ownership. It was
occasionally used in the latter sense by Coke,^" and
perhaps other early authorities,-' particularly in con-
nection with the law of warranty, and conceding the
necessity'' of privity of estate in order that the burden
of a covenant, not contained in a lease, may run with
the land, it was reasonable to regard this requirement
as satisfied by the succession in ownership which was
included under this designation by the earlier writers.
In at least two states the conveyance of an estate in
the land, as distinguished from the grant of an ease-
ment therein,^^ has been held not to furnish the privity
of estate necessary to the creation of a covenant which
will run with the land,-^ the theory being, apparently,
that a mere succession in interest is not sufficient for
25. In Hurd v. Curtis, 19 Pick. 27. See the opinion of Holmes,
459, in which the necessity of such C. J., in Norcross v. James, 140
privity is asserted in reference Mass. 188, 2 N. E. 946, and Holmes,
to a covenant by a fee simple "The Common Law," 395-400.
owner, not in a lease, the court re- 28. Post, this section, note 30.
fers to Webb v. Russell, 3 Term. 29. Los Angeles Terminal Land
Rep. 402, which involved a coven- Co. v. Muir, 136 Cal. 36, 68 Pac.
ant in a lease. 308; Berryman v. Hotel Savoy
26. Co. Litt. 271a, 272b, 273, Co., 160 Cal. 559, 37 L. R. A. (N.
352a, 385a. In Whittingham's S.) 5, 117 Pac. 677; Norcross v.
Case, 8 Co. Rep. 84, it is said James, 140 Mass. 188, 2 N. E.
"there are three manner of privi- 946. In the latter case it is said
ties, soil, privity in blood, privi- by Holmes, J., in delivering the
ty in estate, and privity in law. opinion of the court, that the
* * * Privities in estate are, as statement that there must be
joint tenants, husband and wife, "privity of estate between the
donor and donee, lessor and covenantor and the covenantee,
lessee." only means that the covenant
§ 391]
Covenants Kunning With Land.
1411
this purpose, but that the simultaneous existence of
two distinct interests in the land, in the covenantor
and covenantee respectively, is necessary.^^*
Grant of easement. The requirement of privity
of estate is satisfied if the covenant accompanies a
grant by the owner of land of a mere easement therein,
he retaining the land."'^ Accordingly, it has been held
that the burden of a covenant made upon the grant
of a water privilege,^ ^ or upon the grant of a railroad
must impose such a burden on the
land of the covenantor as to be in
substance, or to carry with it, a
grant of an easement or quasi
easement, or must be in aid of
such a grant." This statement
accords with the view of the sub-
ject elsewhere presented by this
learned jurist, (see "The Com-
mon Law," at p. 388 et seq.), but
does not accord with the ordinary
judicial view. With this state-
ment may be compared a state-
ment emanating from the same
court at a much earlier period.
"The stipulations in the indenture
cannot be construed as grants and
covenants at the same time. If
they were grants, then an action
of covenant is not the proper
remedy for the violation of them;
and if covenants, the assignee is
not bound for want of privity of
estate between the parties." Per
Wilde, J., in Hurd v. Curtis, 19
Pick. (Mass.) 459.
29a. In Morse v. Aldrich, 19
Pick. (Mass.) 449, above cited, in
which the running of a covenant
created in connection with the
grant of an easement, was ap-
parently first recognized, the de-
cision appears to be based on
the analogy of a lease, it being
said that "privity exists between
the grantor and grantee, where
a grant is made of any subor-
dinate interest in land; the re-
version or residue of the estate
being reserved by the grantor, all
covenants in support of the grant
or in relation to the beneficial
enjoyment of it, are real cove-
nants and will bind the assignee."
30. Gilmer v. Mobile & M. Ry.
Co. 79 Ala. 569; Sterling Hydrau-
lic Co. V. Williams, 66 111. 393;
Fitch V. Johnson, 104 111. Ill;
Bronson v. Coffin, 108 Mass. 156,
11 Am. Rep. 335; Lincoln v. Bur-
rage, 177 Mass. 378, 52 L. R. A.
110, 59 N. E. 67; Crawford v.
Witherbee, 77 Wis. 419, 9 L. R.
A. 561, 46 N. W. 545. A covenant
created in connection with an
casement was held to run, even
though not entered into till after
the grant of the easement. Morse
V. Aldrich, 19 Pick. (Mass.) 449.
Contra, Smith v. Kelley, 56 Me.
64; Wheeler v. Schad, 7 Nev. 204.
::04.
31. Farmers' High Line Canal
& Reservoir Co. v. New Hamp-
shire Real Estate Co., 40 Colo.
467, 92 Pac. 290 (semble) ; Fitch
v. Johnson. 104 111. 111. Nye v.
1412
Eeal Property.
[§ 392
right of way,"^- will bind a subsequent transferee of tbe
land or of the easement."" And the grant of an ease-
ment as regards the construction and utilization of a
party wall will support the running of a covenant as
to compensation for the use of the wall.^^
§ 392. The nature of the covenajit. We have, in
connection with the discussion of covenants in leases
which run with the land,''' referred to the difficulty, if
not impossibility, of framing a rule for the determina-
tion of whether a covenant is such as to touch and
concern the land so as to run therewith. ' Ordinarily,
however, a covenant is regarded as touching and con-
cerning the land if it is of value to the covenantee by
Hoyle, 120 N. Y. 195, 24 N. E. 1;
IMorchouse v. Woodruff, 218 N. Y.
494, 113 N. E. 512; Norfleet v.
Cromwell, 64 N. C. 1; Noonan v.
Orton, 4 Wis. 335; Wooliscroft
V. Norton, 15 Wis. 198. But see
Miller v. Clary, 210 N. Y. 127, 103
N. E. 1114; Barringer v. Virginia
Trust Co., 132 N. C. 409, 43 S.
E. 910.
So a covenant which was made
in connection with a gas and oil
lease, a grant apparently of a
profit a prendre, was held to run.
Indiana, etc., Oil Co. v. Hinton,
159 Ind. 398, 64 N. E. 224; Har-
bert V. Hope Natural Gas Co., 76
W. Va. 207, 84 S. E. 770. And
see Munro v. Syracuse, L. & N
R. Co., 200 N. Y. 224, 93 N. E.
P16, and comment thereon in 11
Columbia Law Rev. at p. 384.
32. St. Louis, I. M. & S. Ry.
Co. V. O'Baugh, 49 Ark. 418, 5
S. W. 711; Dorsey v. St. Louis,
A. & T. H. R. Co., 58 111. 65; Mid-
land Ry. Co. V. Fisher, 125 Ind.
19, 8 L. R. A. 604, 21 Am. St. Rep.
189, 24 N. E. 756; Peden v. Chi-
cago. R. I. & P. Ry. Co., 73 Iowa.
328, 5 Am. St. Rep. 6S0, 35 N. W.
424; Kentucky Cent. R. Co. v.
Kenney, 82 Ky. 154; Ford v. Ore-
gon Elec. R. Co., 60 Ore. 278, 36
L. R. A. (N. S.) 358, Ann. Cas.
1914A, 243, 117 Pac. 809; Lydick
V. Baltimore & 0. R. Co., 17 W.
Va. 427.
33. Dorsey v. St. Louis, A. &
T. H. R. Co., 58 111. 65; Fitch v.
Johnson, 104 111. Ill; Midland
Ry. Co. V. Fisher, 125 Ind. 19, 8
L. R. A. 604, 21 Am. St. Rep. 189,
24 N. E. 756; Kentucky Cent. R.
Co. V. Kenney. 82 Ky. 154; Ly-
Gick V. Baltimore & O. R. Co., 17
W. Va. 427. So the benefit may
pass with a subsequent grant of
the water power. Sterling Hy-
draulic Co. V. Wniiams, 66 111.
34. Post, § 393.
35. See ante, § 56(b).
§ 392]
Covenants Running With Laxd.
141^
reason of his oc<3upation of the land or by reason
of an easement which he has in the land, or if it is
a burden on the covenantor by reason of his occupation
of the land. It has ))een held that a covenant to give
free transportation to the covenantee,"" or to pay
an incumbrance on the land,^^ is of such a personal
nature as not to run. And the same view has been
taken by some courts as to a covenant the purpose
of which is to prevent competition in trade.^^
Among the covenants which have been most fre-
quently considered as passing with the grant of a
36. Morse v. Garner, 1 Strob,
(S. C.) 514, 47 Am. Dec. 565;
Dickey v. Kansas City & I. R. T.
Ry. Co., 122 Mo. 223, 26 S. W. 685;
Ruddick v. St. Louis, K. & N. W.
Ry. Co., 116 Mo. 25, 22 S. W. 499,
38 Am. St. Rep. 570; Eddy v.
Hinnant, 82 Tex. 354, 18 S. W.
562. So, in the case of a cove-
nant by the grantee of an ease-
ment to give its transportation
business to the grantor, a ferry
company, it was held that the
covenant would not run, since it
did not affect the enjoyment of
the easement, or of the land in
which the easement was granted,
but was purely for the benefit
of the owner of the ferry. Wig-
gins Ferry Co. v. Ohio & M. Ry.
Co., 94 111. 83. Compare Munro
\. Syracuse, L. S. & N. R. Co.,
200 N. Y. 224, 93 N. E. 516.
37. Glinn v. Canby, 24 Md.
127; Scholten v. Barber, 217 111.
148, 75 X. E. 460; Graber v. Dun-
can, 79 Ind. 565. The same view
was taken of a covenant to pay
to the covenantee a percentage
of the net earnings of mining
property, against the transferee
of which it was sought to as-
sert the covenant. Consolidated
Arizona Smelting Co. v. Hinch-
man, 212 Fed. 803, 129 C. C. A.
267.
38. Taylor v. Owen, 2 Blackf.
(Ind.) 301; Kettle River R. Co.
V. Eastern Ry. Co. of Minnesota.
41 Minn. 461, 6 L. R. A. Ill, 43
N. W. 469; Sjoblom v. Mark, 103
Minn. 193, 114 N. W. 746; Tardy
V. Creasy, 81 Va. 553, 59 Am. Rep.
676; Thomas v. Hay ward, L. R.
4 Exch. 311. Contra, Bobbins v.
'•.Vebb, 68 Ala. 393; National Union
Bank at Dover v. Segur, 39 N.
J. Law 173; Norman v. Wells, 17
Wend. (N. Y.) 136.
1414
Real Property.
[§ 392
fee-simple estate are those to repair a dam or canal,'^^
and to fence or to repair a fence.^° A covenant to
maintain a station^ ^ or to stop trains^^ ^t a particular
point has been held to rnn, as has a covenant to supply
water^^ or gas*^ and to pay taxes.* ^
As previously stated/''' a covenant, contained in an
instrument of lease, as to a thing not in esse, has been
39. Howard Mfg. Co. v. Water
Lot Co., 53 Ga. 689; Sterling Hy-
draulic Co. V. Williams, 66 111
393; Batavia Mfg Co. v. Newton
Wagon Co., 91 111. 230; Maxon
V. Lane, 102 Ind. 364, 1 N. E.
796; Fowler v. Kent, 71 N. H.
388, 52 Atl. 554; Nye v. Hoyle,
120 N. Y. 195, 24 N. E. 1; Den-
man V, Prince, 40 Barb. (N. Y.)
213; Norfleet v. Cromwell, 64 N.
C. 1; Carr v. Lowry's Adm'x, 27
Fa. St. 257; Wooliscroft v. Nor-
ton, 15 Wis. 198.
40. Dorsey v. St. Louis, A. & T.
H. R. Co., 58 111. 65; Midland Ry.
Co. V. Fisher, 125 Ind. 19, 8 L.
R. A. 604, 21 Am. St. Rep. 189,
24 N. E. 756; Lake Erie & W.
Ry. Co. V. Priest, 131 Ind. 413,
31 N. E. 77; Sexauer v. Wilson,
136 Iowa, 357, 14 L. R. A. (N. S.)
185, 15 A. & E. Ann. Cas. 54, 113
N. W. 357; Kentucky Cent. R. Co.
V. Kenney, 82 Ky. 154; Chicago,
M. & G. R. Co. V. Dodds & John-
son, 167 Ky. ?24, 181 S. W. 666;
Bronson v. Coffin, 188 Mass. 175,
11 Am. Rep. 335, 118 Mass. 156;
Countryman v. Deck, 13 Abb. N.
C. (N. Y.) 110; Dey v. Prentice,
90 Hun (N. Y.) 27, 35 N. Y.
Supp. 563; Huston v. Cincinnati
& Z. R. Co., 21 Ohio St. 236;
Hickey v. Lake Shore & M. S.
Ry. Co., 51 Ohio St 40, 23 L.
R. A. 396, 46 Am. St. Rep. 545, 36
N. E. 672; Kellogg v. Robinson,
6 Vt. 276, 27 Am. Dec. 550.
41. Georgia Southern Railroad
V. Reeves, 64 Ga. 492; Reidsville,
& S. E. R Co. V. Baxter, 13 Ga.
App. 357, 79 S. E. 187; LouisviUe,
H. & St. L. Ry. Co. v. Baskett.
— (Ky.) — , 121 S. W. 957; Par-
rott V. Atlantic, & N. C. R. R.,
165 N. C. 295, Ann. Cas. 1915D.
165, 81 S. E. 348; Carnegie Realty
Co. V. Carolina, Clinchfield, &
Ohio Ry. Co., 136 Tenn. 300, 189
S. W. 371.
42. Gilmer v. R. Co., 79 Ala.
569; Ford v. Oregon Elec. R. Co.,
60 Ore. 278, 36 L. R. A. (N. S.)
358, Ann. Cas. 1914A, 280, 117
Pac. 809.
43. Atlanta, K. & N. Ry. Co. v.
McKinney, 124 Ga. 929, 6 L. R.
A. (N. S.) 436, 110 Am. St. Rep.
215, 53 S. E. 701; Farmers' High
Line Canal & Reservoir Co. v.
New Hampshire Real Estate Co.,
40 Colo. 467, 92 Pac. 290.
44. Indiana Natural Gas Co. v.
Hinton, 159 Ind. 398, 64 N. E.
224.
45. Barron v. Whiteside, 89 Md.
448, 43 Atl. 825; West Virginia,
C. & P. R. Co. v. Mclntire, 44
W. Va. 210, 28 S. E. 696.
46. Ante, § 56(b). See 1 Tif-
fany, Landlord & Ten., p. 892;
§ 392] Covenants Running With Land. 1415
frequently considered not to run unless ''assigns" are
mentioned. Occasionally the same rule lias been as-
serted in connection with such a covenant not contained
in an instrument of lease.^^
The intention of the parties to the covenant that
it shall run with the land is occasionally referred to
as a consideration of importance in determining
whether it' does run,^^ but in the great majority of
cases no reference is made to this matter, the question
whether the covenant runs being regarded as one to be
determined by the consideration whether it touches
and concerns the land. The correct rule appears to
be that the parties to the covenant may, by indicating
an intention to that effect, prevent the covenant from
running, although it is such that othei-wise it would
run,*^ wdiile if the covenant is one w^hich does not touch
and concern the land, the parties cannot make it run
by indicating an intention or desire that it shall run.^"
Looked at from this point of view, the rule of Spencer's
case, that a covenant in reference to a thing not in esse
does not run unless assigns are mentioned, in so far
editorial note, 15 Mich. Law Rev. ' thing not in esse, did not run,
at p. 79. in the absence of the word
47. Md. & Pa. R. Co., V. Silver, "assigns."
110 Md. 510, 73 Atl. 297; Whalen 48. Milliken v. Hunter, 180 Ind.
V. Baltimore, & 0. R. Co., 108 149, 100 N. E. 1041; Sexauer v.
Md. 11, 17 L. R. A. (N. S.) 130, Wilson, 136 Iowa, 357, 14 L. R. A.
129 Am. St. Rep. 423, 69 Atl. 390; (N. S.) 185, 15 Ann. Cas. 54, 113
Duester v. Alvin, 74 Ore. 544, 145 N. W. 357; Brown v. Southern
Pac. 660; Carnegie Realty Co. v. Pac. Co., 36 Ore. 128, 47 L. R. A.
Carolina, C. & 0. Ry. Co., 136 409, 78 Am. St. Rep. 761, 58 Pac.
Tenn. 300, 189 S. W. 371. But see 1104.
Sexauer v. Wilson, 136 Iowa, 357, 49. Maryland Coal Co. v. Cum-
14 L. R. A. (X. S.) 185, 15 A. berland, etc. R. Co., 41 Md. 343;
& E. Ann. Cas. 54, 13 N. W. 941. Masury v. Southworlh, 9 Ohio St.
Purvis V. Shuman, 273 111. 286, 348; Wilmurt v. McGrane, 16 App.
112 N. E. 679. So in Hartung v. Div. 412, 45 N. Y. Supp. 32.
Witte, 59 "Wis. 285, and Gulf, C. 50. Ackroyd v. Smith, 10 Com.
& S. F. Ry. Co. v. Smith, 72 Tex. B. 164; Fresno Canal & Irr. Co.
122; Brown v. Southern Pac. Co., v. Dunbar, 80 Cal. 530, 22 Pac.
36 Ore. 128, 47 L. R. A. 409, 78 275. Gibson v. Holden, 115 111.
Am. St. Rep. 761, 58 Pac. 1104, 199, 56 Am. Rep. 149, 3 N. E.
It was held that a covenant to 282; Kettle River R. Co. v. East-
build a fence, as concerning a ern R. Co. of Minnesota, 41 Minn.
141G Real, Property. [§ 393
as it is adopted in any state,^^ may be regarded as
involving merely a rule of construction that a covenant
of that character is to be regarded as intended to
be personal, unless a contrary intention is shown by
the mention of assigns.
§ 393. Party wall agreements. Whether the stipu-
lation, in a party wall agreement,-"'- that one of the
two adjoining owners, parties thereto, upon using a
wall built by the other upon the division line, shall
pay to the latter part of the cost of the wall, is a
covenant which runs w4th the land, has been the sub-
ject of frequent discussion and adjudication.^"
As before stated, the grant of an easement at the
time of the making of a covenant is regarded as fur-
nishing the "privity of estate" necessary to enable a
covenant to run with the land, and such a grant of an
easement appears to occur in the case of a party wall
agreement. If the wall is regarded as belonging to
both the land owners immediately upon its construction,
the agreement in effect involves a grant, to take effect
upon the construction of the wall, by the non builder
to the builder, of an easement to use the former's
half of the wall for purposes of support, and also a
grant, to take effect subsequently, by the builder to
the non builder, of an easement to use the former's
half of the wall for purposes of support; in other
words, it involves the grant of cross easements of
support.^^ If the wall is regarded as belonging to
461, 6 L. R. A. Ill, 43 N. W. 469; 53. The authorities on the
Glenn v. Canby, 24 Md. 127; Brew- subject, previous to 1903, are con-
er V. Marshall, 18 N. J. Eq. 337, veniently grouped in a note in 66
19 N. J. Eq. 537, 97 Am. Dec. L. R. A. at p. 673. The subject
679; Wilmurt v. McGrane, 16 N. Is discussed, in a most discrim-
Y. App. Div. 45 X. Y. S. 32; Mas- inating manner, with references
ury V. Southworth, 9 Ohio St. 348; to the cases by Professor Ralph
Louisville & N. R. Co. v. Webster, W. Aigler, in 10 Mich. Law Rev.
106 Tenn. 586, 61 S. W. 1018. at p. 186.
51. Ante, this section, notes 46, 54. Roche v. Ullman, 104 111.
47. 1; King v. Wight, 155 Mass. 444.
52. Ante, § 356. 29 N. E. 644; Kimm v. Griffin, 67
§ 393]
Covenants Running With Land.
1417
the landowner who builds it, until the other pays
to him part of the cost thereof, there is a grant of
cross easements of support, to take effect when such
payment is made, and title to part of the wall ac-
cordingly vests in the non builder, and there is also
a grant, by the non builder to the builder, of an ease-
ment to maintain the wall in part on the former's
land.^^
Running* of benefit. The right to compensation
under the agreement for the use of the wall is by
some cases considered to appertain to the land, and to
pass to a transferee of the proprietor who built the
wall,^*' while by others it is regarded as personal to
such proprietor, so as not to pass to his transferee.^"
Minn. 25, 64 Am. St. Rep. 385, 69
N. W. 634.
55. Conduitt v. Ross, 102 Ind.
166; King v. Wight, 155 Mass.
444, 29 X. E. 644.
56. Rugg V. Lemley, 78 Ark.
65, 115 Am. St. Rep. 17, 93 S.
W. 570; Eberly v. Behrend, 20 D.
C. 215; Ferguson v. Worrall, 31
Ky. Law Rep. 219, 9 L. R. A. (N.
S.) 1261, 101 S. W. 966; Savage
V. Mason, 3 Cush. (Mass.) 500;
King V. Wight, 155 Mass. 444,
29 N. E. 644; Kimm v. Griffin, 67
Minn. 25, 64 Am. St. Rep. 385, 69
N. W. 634; Piatt v. Eggleston, 20
Ohio St. 414. See the remarks
by Holmes, C. J., in Lincoln v.
Burrage, 177 Mass. 378,, 52 L. R.
A. 110, 59 N. E. 67, adverse to the
view that, while the burden of
such a covenant runs with the
land, the benefit thereof can be
regarded as "in gross" or per-
sonal to the covenantee.
In order that the transfe'Tee of
the builder be able to recover
upon the contract to pay part of
the cost of the wall upon using it.
the party wall agreement must,
it has been held in Massachusetts,
be under the seal of the other
party, as otherwise the builder
acquires, not an easement, but a
mere license to build on the
other land, and no privity exists
to support the running of the
covenant. Joy v. Boston Penny
Sav. Bank, 115 Mass. 60. Even
if the agreement is not under
seal, the transferee of one tract,
by accepting a conveyance bind-
ing him to pay a part of the cost
of the wall, becomes liable ac-
cordingly. Maine v. Cumston, 98
Mass. 317.
57. Kenny v. Mackenzie, 12
Ont. App. 346; Crater v. McCor-
mick, 4 Colo. 197; Conduitt v.
Ross. 102 Ind. 166, 26 N. E. 198;
Mayer v. Martin, 83 Miss. 322, 35
So. 218 (dictum) ; Cole v. Hughes.
54 N. Y. 444; Lea's Appeal, 9
Pa. St. 504; Todd v. Stokes, 10
Pa. St. 155; Parsons v. Baltimore
Building & Loan Ass'n, 44 W.
Va. 335, 67 Am. St. Rep. 769, 29
S. E. 999.
1418 Real Property. [§ 393
The right to compensation has occasionally been con-
sidered to be personal to the builder, not passing with
the land, if the ownership of half the wall, by the
express terms of the agreement, vests immediately on
its construction, contrary to the general rule, in the
owner of the other land, though he cannot use it
till he pays his share,^^ the theory being that, in
such case, the promise of the non builder is merely
to reimburse the builder in part for his expenditure,
the performance of which promise has no effect on the
land. In at least one case, in which the title to no part
of the wall was regarded as vesting in the non builder
until payment was made by him, the right of the trans-
feree of the builder to receive the payment was based
on the theorv% not that the benefit of the covenant ran
with the land, but rather that he was the vendor of
part of the wall.°^
The fact that an intention appears in the agree-
ment that the covenant shall run with the land, as when
it is so stated,^" or even when the agreement is in
terms made binding on assigns,^ ^ has occasionally been
In New York, it seems, how- 18 111. App. 439. Pillsbury v. Mor-
ever, that the right to compensa- ris, 54 Minn. 492, 56 N. W. 170.
tion passes with the land if the And Professor Aigler's discussion,
covenant is general in terms, re- 10 Mich. Law Rev. at p. 195.
ferring to the possible construe- 59. Gibson v. Holden, 115 111.
tion of the wall by either party. 199, 56 Am. Rep. 133, 3 N. E.
Mott V. Oppenheimer, 135 N. Y. 272. See Rugg v. Lemley, 78
312, 17 L. R. A. 409, 31 N. E. Ark. 65, 115 Am. St. Rep. 17, 93
1097; Sebald v. Mulholland, 155 S. W. 570; Piatt v. Eggleston, 20
N Y. 455, 50 N. E. 260; Craw- Ohio St. 414.
ford v. Krollpfeiffer, 195 N. Y. 60. Jebeles etc. Confectionery
185, 133 Am. St. Rep. 783, 88 Co. v. Brown, 147 Ala. 593, 11 Ann.
N. E. 29. Cas. 525, 41 So. 626; Adams v.
58. Gibson v. Holden, 115 111. Noble, 120 Mich. 545, 79 N. W.
199, 56 Am. Rep. 133, 3 N. E. 810; Loyal Mystic Legion v. Jones,
272; McChesney v. Davis, 86 111. 73 Neb. 342, 102 N. W. 621.
App. 380; Bloch v. Isham, 28 Ind. 61. Southworth v. Perring, 71
37. See Mickel v. York, 175 111. Kan. 755, 2 L. R. A. (N. S.) 87,
62, 51 N. E. 848; Tomblin v. Fish, 114 Am. St. Rep. 527, 81 Pac.
§ 393] Covenants Running With Land. 1419
referred to in support of a decision that in the par-
ticular case the benefit passed, while conversely the
absence of any such showing of intention has been
referred to in support of a contrary decision.'^-
E" /en though the benefit of the covenant would
otherwise pass, the party building the wall may, it
has been held, upon the grant of his parcel, reserve
the right to compensation on account of the use
which may be subsequently made of the wall by the
adjoining proprietor.'"-^
Occasionally the benefit of the stipulation for
pajTBent of part of the cost of the wall has been re-
garded as passing to a grantee of the builder of the
wall, not on the theory that it is a covenant running
with the land, but because the instrument by which the
land was conveyed also transferred in terms the
benefit of the stipulation,^'^ or on the theory, apparently,
that a transfer in terms of the land is to be construed
as also intended to transfer the benefit of the stipula-
tion, as if it were so stated.^
In one or two cases the grantee of the builder
appears to be regarded as entitled to recover part
of the cost of the wall on the theory, not of contract,
but rather of quasi contract, that is, that the person
making use of another's wall is under an implied
481, 82 Pac. 785; King v. Wight, 63. Conduitt v. Ross, 102 Ind.
155 Mass. 444, 29 X. E. 644; Hoff- 166, 26 X. E. 198; Pillsbury v.
man v. Dickson, 47 Wash. 431, Morris, 54 Minn. 432, 56 X. W.
125 Am. St. Rep. 907, 15 Ann. 170.
Cas. 173, 92 Pac. 272, 93 Pac. 523. 64. Keating v. Korfhage, 88
Sandberg v. Rowland, 51 Wash. Mo. 524; Parsons v. Baltimore
7, 97 Pac. 1087. See Loyal Mystic Bldg. & L. Ass'n, 44 W. Va. 335.
Legion v. Jones, 73 Xeb. 342, 102 29 S. E. 999, 67 Am. St. Rep. 769;
X. W. 621; Weyman v. Ringold, 1 Ellinsburg Lodge Xo. 20 v. Col-
Bradf. (X. Y. Surr.) 40. lins, 68 Wash. 94, 122 Pac. 602.
62. Conduitt v. Ross, 102 Ind. 65. See Roche v. Ullman, 104
166, 26 X. E. 198; Behrens v. 111. 11; Sharp v. Cheatham, 88 Mo.
Hoxie, 26 111. App. 417. See Mott 498, 57 Am. Rep. 433. Mott v.
V. Oppenhiemer, 135 N. Y. 312, Oppenheimer, 135 N. Y. 312, 17
17 L. R. A. 409, 31 X. E. 1097. L. R. A. 409, 31 N. E. 1097.
1420 Real Property. [§ 393
assumpsit to make compensation to the owner of the
wall.^^
The statutes in regard to party walls"' have
ordinarily been construed as entitling the grantee of
the builder of the wall to enforce the statutory liability
for a portion of the cost of the wall/'^ But the user of
the wall by the adjoining lot o^\^ler matures the ob-
ligation, so that the right to compensation does not
pass by a subsequent conveyance of the land.*'^
Running of the burden. Agreements between
owners of adjoining pieces of land that, in case of
the erection by either of them of a party wall upon
the division line, a part on each tract, the other will,
if he subsequently uses such wall, pay his share of
the cost, have usually been held to bind a subsequent
transferee of either owner for a part of the cost upon
his user of such wall previously erected by the owner
of the other property,'*^ though there are states in
which such liability on the part of the transferee
is denied."^ The fact that the party wall agreement
66. Post, § 393, note 77. 115 III. 199, 56 Am. Rep. 146, 3
67. Ante, § 365. N. E. 282; Conduitt v. Ross, 102
68. Pfrommer v. Taylor, 27 Ind. 166, 26 N. E. 198; Ferguson
Del. 113, 86 Atl. 212; Halpine v. WorraU, 31 Ky. L. Rep. 219, 9
V. Barr, 21 Dist. Col. 331; Thorn- L. R. A (X. S.) 1261, 101 S. W.
son V. Curtis, 28 Iowa, 229; Irwin 966; Savage v. Mason, 3 Cush.
V. Peterson, 25 La. Ann. 300; (Alass.) 500; Standish v. Law-
Hunt V. Ambruster, 17 N. J. Eq. rence, 111 Mass. Ill; Richardson
208; Knight v. Beenken, 30 Pa. v. Tobey, 121 Mass. 457; King v.
372; Vollmer's Appeal, 61 Pa. 118; Wight, 155 Mass. 444, 29 N. E.
Contra under an earlier Pennsyl- 644; National Life Ins. Co. of
vania statute, Dannaker v. Riley, ]\Iontpelier v. Lee, 75 Minn. 157,
14 Pa. 435. 77 N. W. 794; Burr v. Lamaster,
69. Eberly v. Behrend, 9 30 Neb. 688, 9 L. R. A. 637, 27 Am.
Mackey (20 D. C.) 215; Lea v. St. Rep. 428, 46 N. W. 1015; Gar-
Jones, 23 Pa. Super. Ct. 587, 209 mire v. Willy, 36 Neb. 340, 54 N.
Pa. 22, 57 Atl. 1113. W. 562; Hall v. Geyer, 14 Ohio
70. Roche v. UUman, 104 111. Cir. Ct. R. 229, 7 Ohio Dec. 436.
11; Mackin v. Haven, 187 111. 480, 71. Sharp v. Cheatham, 88 Mo.
58 N. E. 448; Tomblin v. Fish, 498; Nalle v. Paggi, — (Tex ) — ,
18 HI. App. 439; Gibson v. Holden, 9 S. W. 205. In Nalle v. Paggi,
§ 398]
Co\'EXANTS RrxxiXG With Laxd.
1421
is ill terms binding on the assigns of the i)arties has
been referred to as making the burden of the covenant
run with the land'- and a statement that the covenant
is to run with the land would no doubt have quite as
great an effect.'"
Such an agreement is, it seems, prima facie, con-
strued as providing for reimbursement by the person
alone who uses the wall for the construction of a
building; and consequently the original covenantor, if
he does not use the wall, is not liable on his covenant,'^
nor is one to whom the land is transferred after it has
been built on by his grantor ordinarily so liable.'"
SI Tex. 201, 1 L. R. A. 33, 16 S.
W. 932, it was held that the non
builder, party to the agreement,
having contracted to pay half the
value of the wall when he used it,
became personally liable for half
the value immediately on trans-
ferring his land to another, and
thus becoming incapable of using
the wall.
In New York it is held that the
covenant to pay part of the cost
runs with the land, if the agree-
ment is general in terms, con-
templating the possible construc-
tion of the wall by either party in
the future, without reference to
any present intention of building
a wall, while it does not run
when it involves a specific agree-
ment that, if the party named
build the wall, the other party
shall pay part of the cost thereof
upon using it. Sebald v. Mulhol-
land, 155 X. Y. 455, 50 X. E. 260;
Crawford v. Krollpfeiffer, 195 X.
Y. 185, 88 N. E. 29.
72. Roche v. Ulman, 104 111.
11; South worth v. Perring, 71
Kan. 755, 81 Pac. 481, 2 L. R. A.
(N. S.) 87, 114 Am. St. Rep. 527,
82 Pac. 785; King v. Wright, 155
2 R. P.— 15
-Mass. 444, 29 X. E. 644; Kimm v.
Griffin, 67 .Minn. 25, 64 Am. St.
Rep. 385, 69 X. W. 634; Hoffman
v. Dickson, 47 Wash. 431, 125 Am.
St. Rep. 907, 15 Ann. Cas. 173.
92 Pac. 272, 93 Pac. 523.
73. Jebeles h Colias Confec-
tionery Co. V. Brown, 147 Ala.
593, 11 Ann. Cas. 525, 41 So. 626;
Roche V. Ulman, 104 111. 11; Rein-
hardt v. Holmes, 143 Mo. App.
212, 127 S. W. 611; Adams v.
Xoble. 120 -Mich. 545, 79 X. W.
810.
There is one decision to the
effect that although the covenant
was not previously one the bur-
den of which would run with the
land, its character in this regard
is changed if a subsequent con-
veyance by the covenant is in
terms subject to the party wall
agreement. Ellinsburg Lodge Xo.
20, I. 0. F. C. V. Collins, 68 Wash.
94, 122 Pac. 602.
74. Standish v. Lawrence, 111
Mass. Ill; Jordan v. Kraft, 33
Xeb. 844; Percival v. Colonial In v.,
Co., 140 Iowa, 275, 24 L. R. A. (X.
S.) 293, 115 X. W. 941.
75. Pfeiffer v. .Matthews, 161
.Mass. 487, 42 Am. St. Rep. 435. 37
1422 Eeal Peoperty. [^ 393
Occasionally reference is made in the decisions to
the existence in the particular case- of notice of the
party wall agreement on the part of the person sought
to be charged, as if lack of notice might prevent the
running of the covenant as against him.'^'' And it
may be assumed that the courts would hesitate to
impose such liability on one who purchased the land
without notice, actual or constructive, of the agree-
ment.
Occasionally the court, without reference to the doc-
trine of covenants running with the land, appears to have
implied an assumpsit, on the part of a subsequent
grantee, taking with notice of his grantor's agreement
that part of the cost of the wall shall be paid upon
its user, to make payment accordingly, such assumpsit
being implied in favor of the person, whether the
original builder or his grantee, who owns the wall at
the time of its user by the owner of the other prop-
erty.'^'^ This implied assumpsit involves a liability,
N. E. 571; First Nat. Bank v. 104 N. W. 607, it was held that
Security Bank, 61 Minn. 25, 63 X. the grantee was not affected with
W. 264. But in Iowa a grantee notice of the agreement by rea-
who purchases with notice that son of the presence of the wall
his grantor, who used the wall, on his land. This was however
has not paid for it as agreed is a proceeding for an injunction,
perhaps liable. Pew v. Buchanan, and the decision in favor of de-
72 Iowa, 637, 34 N. W. 453. Per- fendant may presumably be re-
cival V. Colonial Inv. Co., 140 garded as based on the theory
Iowa, 275, 24 L. R. A. (N. S.) that the agreement created an
293, 115 N. W. 941. equitable charge (Post, note 80)
76. Lorenzi v. Starmarket, 19 which was effective as against
Idaho, 614, 115 Pac. 490. See purchasers with notice only.
Roche V. Ullman, 104 111. 11; Har- 77. Standish v. Lawrence, 111
ris V. Dozier, 72 111. App. 542; Mass. Ill; Richardson v. Tobey,
McChesney v. Davis, 86 111. App. 121 Mass. 457, 23 Am. Rep. 283;
380; Richardson v. Tobey, 121 Brown v. Pentz, 1 Abb. App. Dec.
Mass. 457, 23 Am. Rep. 283; Gar- 227, per McCouu, J., Burlock v.
mire v. Willy, 36 Neb. 340, 54 N. Peck, 2 Duer 90; and see Piatt v.
W. 562. Eggleston, 20 Ohio St. 414; Na-
In Scottish American Mortgage tional Life Ins. Co. v. Lee, 75
Co. V. Russell, 20 S. Dak. 310, Minn. 157, 77 N. W. 794.
§ 393] Covenants Kuxning With Land. 1423
not in contract, }3ut in quasi contract. But ordinarily,
as before stated,'^^ no liability is imposed upon one
using a wall placed in part on his land by another, in
the absence of an agreement on his part, or on the
part of his predecessor in title, to make compensation
in the case of its use by him. The theory of implied as-
sumpsit, above referred to, appears to be that adopted
in England, in order to impose liability on a sub-
sequent grantee of the covenantor.'''*
In a few cases it has been said that an agreement
of the character referred to has the effect of creating
an equitable charge,^*' or lien,^^ so that a grantee
claiming under the non builder, if he takes with notice,
express or implied, of the agreement to pay for the
use of the w^all, takes subject thereto. And occasionally
such an agreement has apparently been regarded as
creating an equitable easement as regards the pay-
ment of part of the cost of the wall.^-
The view that by such an agreement an equitable
lien or charge is created involves the proposition merely
that, in case the wall built by the owner of one tract
is used by the owner of the other, the liability for
the stipulated portion of the cost of the wall may
78. Ante, § 356 ment for lien) ; Parsons v. Bal-
79. Christie v. Mitchison, 36 timore Building & L. Ass'n, 44 W.
Law Times N. S. 621; Irving v. Va. 335, 67 Am. St. Rep. 769, 29
Turnbull (1900), 2 Q. B. 129. The N. E. 999.
latter case is criticized in edi- In one state a grantee has been
torial notes, 14 Harv. Law Rev. at regarded, by force of the statute
p. 297, and 1 Columbia Law Rev. as to party walls, as taking tha
at p. 257. land subject to a lien for a por-
80. Sharp v. Cheatham, 88 Mo. tion of the cost of the wall, if
498, 57 Am. Rep. 433; Keating v. it was used by his grantor. Pew
Korfhage, 88 Mo. 254; Stehr v. v. Buchanan, 72 Iowa, 637, 34
Raben, 33 Neb. 437, 50 N. W. 327. N. W. 453.
81. Nelson v. McEwen, 35 111. 82. Sharp v. Cheatham, 88 -Mo.
App. 100; First Nat. Bank v. Se- 498, 57 Am. Rep. 433; Keating v.
curity Bank, 61 Minn. 25, 63 N. W. Korfhage, 88 Mo. 254; Stehr v.
264. Arnold v. Chamberlain, 14 Raben, 33 Neb. 437, 50 N. W. 327.
Tex. Civ. App. 634 (express agree-
1424 Real Property. [§ 393
be enforced against the land by foreclosure sale
But whether such a lien should be recognized in the
absence of any language showing an intention to cre-
ate it may well be questioned. And the theory of
equitable charge or lien furnishes no ground for im-
posing a personal liability upon a subsequent grantee
of the land,*'^ though it is not, it seems, inconsistent
with the existence of such liability.*^ That is, a grantee
may in some jurisdictions be personally liable as upon
a covenant running with the land, and the covenantee
at the same time have an equitable lien upon his land
for part of the cost of the wall. The view that by
such an agreement an equitable easement is created
appears to involve the proposition that as one who
takes with notice of an agreement by his predecessor
in title that the land shall not be used in a certain
way may be restrained from making such use,^^*" so
one who takes with notice of an agreement that the
land shall not be used without the making of a certain
payment, may be restrained from making such use
without making the payment. ^-^ In so far as the
theory of equitable easement, however, may involve the
assumption that the right to use the wall is conditional
upon payment of part of the cost thereof, it does
not accord with the construction sometimes, perhaps
usually, placed upon a party wall agreement, that the
right to use the wall is not dependent upon payment
of the stipulated part of the cost.***^
83. See Keating v. Korfhage, 88 Garmire v. Willy, 36 Xeb. 340,
Mo. 524; Parsons v. Baltimore .54 N. W. 562.
Bldg. & L. Ass'n, 44 W. Va. 335, 84a. Po.^t, § 394.
67 Am. St. Rep. 769, 29 N. E. 999. 85. See Gibson v. Holden, 115
84. First Nat. Bank v. Security 111. 199, 56 Am. Rep. 146, 3 X. E.
Bank, 61 Minn. 25, 63 N. W. 624; 282.
Roche V. unman, 104 111. 11; Har- 86. Ante, § 361, note 39.
ris V. Dozier, 72 111. App. 542.
CHAPTER XV.
RESTRICI'IONS ENFORCEABLE IN EQUITY.
§ 394. General considerations.
394. Character of agreement.
396. Theory of enforcement.
397. Persons subject to restriction.
398. Notice.
399. Persons entitled to enforce restriction.
400. Existence of general plan.
401. Defenses to enforcement.
§ 394. General considerations. Even in jurisdic-
tions where, as in England, the burden of a covenant
does not run with the land, an agreement as to the
use of land may, under certain circumstances, affect
a subsequent purchaser of the land who takes with
notice of the agreement, equity in such case enjoining
a use of the land in violation of such agreement.^ As
stated in the leading case on the subject, ^'"^ "the ques-
tion is not whether the covenant runs with the land,
but whether a party shall be pennitted to use the land
1. See, on the subject of this Heights Co. of Baltimore, 70 Md.
chapter, an excellent article by 493, 3 L. R. A. 579, 17 Atl. 372;
Professor George L. Clark, in IG Feabody Heights Co. of Baltimore
Mich. Law Rev. at p. 90. City v. Willson, 82 Md. 186, 36
la. Tulk V. Moxhay, 2 Phillips, L. R. A. 393, 32 Atl. 386, 1077;
774. See, to the same effect, De Whitney v. Union Ry. Co., 11 Gray
Mattes V. Gibson, 4 De G. & J. (Mass.) 359, 71 Am. Dec. 715;
276; Luker v. Dennis, 7 Ch. Div. Watrous v. Allen, 57 Mich. 362,
227; McMahon v. Williams, 79 58 Am. St. Rep. 363, 24 N. W.
Ala. 288; Bryant v. Grosse, 155 104; Burbank v. Pillsbury, 48 N.
Cal. 132, 99 Pac. 99; Frye v. H. 475, 97 Am. Dec. 633; Kirk-
Partridge, 82 111. 267; Hutchin- Patrick v. Peshine, 24 N. J. Eq.
sun V. Ulrich, 145 111. 336, 21 L. 206; Coudert v. Sayre, 46 N. J.
R. A. 391, 34 N. E. 556; Wieg- Eq. 386, 19 Atl. 190; Hayes v.
man v. Kusel. 270 HI. 520, 110 Waverly & P. Ry. Co., 51 N. J.
N. E. 886; Newbold v. Peabody Eq. 345; Cotton v. Cresse, 80 N.
(14:^:,)
142G
Real Property.
[§ 394
in a manner inconsistent with the contract entered
into by his vendor, and with notice of which he pur-
chased." The person thus affected by the agreement
as to the use of the land may be a purchaser, a lessee,^
or a mere occupant of the land under license.^ Such
an agreement may occur in connection with a con-
veyance of land, restricting the grantor, or the sub-
sequent transferees of the grantor, as regards the
use of land retained by him,^ or restricting the grantee
as regards the use of the land conveyed.^ Or it may
be independent of any conveyance of land, being merely
an agreement between adjoining owners as regards the
use of their land.''
J. Eq. 540, 85 Atl. 600; Wootton
V. Seltzer, 84 N. J. Eq. 207, 93
Atl. 1087; Tallmadge v. East River
Bank, 26 N. Y. 105; Trustees of
Columbia College v. Lynch, 70 N.
Y. 440; Hodge v. Sloan, 107 N.
Y. 244, 1 Am. St. Rep. 816, 17 N.
E. 335; Hills v. Miller, 3 Paige
(N. Y.) 254, 24 Am. Dec. 218;
Brown v. Huber, 80 Ohio St. 183,
88 N. E. 322; St. Andrew's Luth-
eran Church's Appeal, 67 Pa. St.
512; Town of Middletown v. New-
port Hospital, 16 R. I. 319, 15
Atl. 800; Ball v. Milliken, 31 R.
I. 36, 37 L. R. A. (N. S.) 623, Ann.
Cas. 1912A, 1334, 76 Atl. 789.
2. Wilson V. Hart, 1 Ch. App.
463; Spicer v. Martin, 14 App.
Cas. 12; Parker v. Nightingale, 6
Allen (Mass.) 341, 83 Am. Dec.
632.
3. Mander v. Falcke [1891] 2
Ch. 554.
4. See e. g., Halle v. Newbold,
69 Md. 265; Bridgewater v. Ocean
City R. Co., 63 N. J. Eq. 798, 52
Atl. 1130; Brown v. Huber, 80
Ohio St. 183, 88 N. E. 322; Water-
town V. Cowen, 4 Paige (N. Y.)
510, 27 Am. Dec. 80; Nicoll v.
Fenning, L. R. 19 Ch. Div. 258.
5. See e. g., Weil v. Hill, 193
Ala. 407, 69 So. 438; Los Angeles
Terminal Land Co. v. Muir, 136
Cal. 36, 68 Pac. 310; Judd v. Rob-
inson, 41 Colo. 222, 124 Am. St.
Rep. 128, 14 A. & E. Ann. Cas.
1018, 92 Pac. 724; Hays v. St.
Paul M. E. Church, 196 111. 633,
63 N. E. 1040; Peck v. Conway,
119 Mass. 546; Watrous v. Allen,
57 Mich. 362, 58 Am. Rep. 363, 24
N. W. 104; Coughlin v. Barker,
46 Mo. App. 54; Condert v. Sayre,
46 N. J. Eq. 386, 10 Atl. 190;
Phoenix Ins. Co. v. Continental
Ins. Co., 87 N. Y. 400; Smith v.
Graham, 217 N. Y. 655, 112 N. E.
1076; Clark v. Martin, 49 Pa.
289.
6. Bryan v. Grosse, 155 Cal.
132, 99 Pac. 499; Codman v. Brad-
ley, 201 Mass. 361, 87 N. E. 591,
Ericksen v. Tapert, 172 Mich. 457,
138 N. W. 330; Supplee v. Cohen,
81 N. J. Eq. 500, 86 Atl. 366;
Cotton V. Cresse, 80 N. J. Eq. 540,
§ 394]
Equitable Restrictions.
1427
That the grantor of land is expressly given a
right of forfeiture in case of the breach by the grantee
of a provision restrictive of the use to be made of the
land does not of itself j^reclude the enforcement of such
a provision by injunction."^
The courts do not favor restrictions upon the utiliza-
tion of land, and that a particular mode of utilization is
excluded by agreement must clearly appear.'" If this
does appear, the fact that the person seeking relief can-
not show that such user of the land will cause him actual
damage is usually immaterial,^'' though it may happen
that the particular violation of the agreement sought to
be restrained is so unimportant that equity will not inter-
vene.'^^ The court will give relief when necessary by
a mandatory as well as by a prohibitory injunction.'^ ^
49 L. R. A. (N. S.) 357, 85 Atl.
600; Trustees of Columbia Col-
lege V. Lynch, 70 N. Y. 440; Lewis
V. Gollner, 129 N. Y. 227, 26 Am.
St. Rep. 516, 29 N. E. 81.
7. Weil V. Hill, 193 Ala. 407,
69 So. 438; Watrous v. Allen, 57
Mich. 362, 58 Am. Rep. 363, 24
N. W. 104; Hopkins v. Smith, 162
Mass. 444, 38 N. E. 1122; Wilson
V. Massachusetts Institute of
Technology, 188 Mass. 565, 75 N.
E. 128; Hayes v, W^verly & P.
R. Co., 51 N. J. Eq. 345, 27 Atl.
648; Ball v. Milliken, 31 R. I.
36, 37 L. R. A. (N. S.) 623, 76 Atl.
789; Clark v. Martin, 49 Pa. 289;
Duester v. Alvin, 74 Ore. 544, 145
Pac. 660.
7a. Gerling v. Lain, 269 111.
337, 109 N. E. 972; Brandenburg
V. Lager, 272 111. 622, 112 N. E.
321; Van Duyn v. H. S. Chase &
Co., 149 Iowa, 222, 128 N. W.
300; Melson v. Ormsby, 169 Iowa,
522, 151 N. W. 817; Casterton v.
Plotkin, 188 Mich. 333, 154 N.
W. 151; Godley v. Weisman, 133
Minn. 1, L. R. A. 1917A, 333, 157
N. W. 711, 158 N. W. 333; Scharer
V. Pantler, 127 Mo. App. 433, 105
S. W. 668; Fortesque v. Carroll.
76 N. J. Eq. 583, 75 Atl. 923;
Goater v. Ely, 80 N. J. Eq. 40, 82
Atl. 611; Hunt v. Held, — Ohio
— , 107 N. E. 765; McCloskey v.
Kirk, 243 Pa. 319, 90 Atl. 73.
7b. Hartman v. Wells, 257 111.
167, 100 N. E. 500; Morrow v.
Hasselman, 69 N. J. Eq. 612, 61
Atl. 369; Supplee v. Cohen, 80
i\. J. Eq. 83, 83 Atl. 373; Spilling
V. Hutcheson, 111 Va. 179, 68 S.
E. 250. See Doherty v. Allman,
3 App. Cds. at p. 720, per Lord
Cairns.
7c. Barton v. iSlifer, 72 N. J.
Eq. 812, 66 Atl. 899; Smith v.
Spencer, 81 N. J. Eq. 389, 87 Atl.
158; Forsee v. Jackson, 192 Mo.
App. 408, 182 S. W. 783.
7d. Hartman v. Wells, 257 111.
167, 100 N. E. 500; Codman v.
Bradley, 201 Mass. 361, 87 N. E.
591; Stewart v. Finkclstone, 206
Mass. 28, 28 L. R. A. (N. S.) 634,
1428 Real Peopeety. [§ 395
It has been decided in one state that a covenant
restrictive of the use of land constitutes a property
right in the land restricted, so as to entitle the bene-
ficiaries under the covenant to compensation if such
land is devoted to a public use which involves a vio
lation of the covenant,^ and in another state the interest
of one entitled to enforce such a covenant has been
regarded as a right of which he cannot be deprived by
legislation without compensation.^ Elsewhere, how-
ever, such a covenant has been regarded as a nullity as
against the state or a state agency seeking to utilize
the land for a public or quasi public purpose, with
the result that a neighboring property owner cannot
assert any claim for damages in such case, though the
public use is of a character which is in terms excluded
by the covenant/'"
§ 395. Character of agreement. In England, an
agreement will thus be enforced in equity against a
subsequent purchaser or occupant only when it is
restrictive of the use of the land, and not when it calls
for the performance of some positive act by the occu-
pant thereof.^^ And in the great majority of the
138 Am. St. Rep. 370, 92 N. E. Co., 92 Ohio St. 471, 112 N. E.
37; AHen v. Barrett, 213 Mass. 507; U. S. v. Certain Lands, 112
36, 99 N. E. 575; Compton Hill Fed. 622; Wharton v. United
Imp. Co. V. Strauch, 162 Mo. App. States, 153 Fed. 876.
76, 141 S. W. 1159; Maine v. Mul- 10. Havwood v. Brunswick
liken, 176 Mich. 443, 142 N. W. Permanent Benefit Building Soc.
782; Spilling v. Hutcheson, 111 8 J. B. Div. 403; Austerberry v.
Va. 179, 68 S. E. 250. Corporation of Oldham, 29 Ch.
8. Flynn v. New York, W. & Div. 750; London & S. W. Ry.
B. R. Co., 218 N. Y. 140, 112 N. E. Co. v. Gomm, 20 Ch. Div. 562. See
913. De Gray \:. Monmouth Beach Club
9. Riverbank Improvement Co. House Co., 50 X. J. Eq. 329. That
V. Chadwick, 228 Mass. 242, 117 only a restrictive agreement will
N. E. 244. thus be enforced, see also Miller
9a. Doan v. Cleveland Short v. Clary, 210 N. Y. 127, 103 X.
Line Ry. Co., 92 Ohio St. 461, 112 E. 1114 {semble).
N. E. 505; Ward v. Cleveland Ry.
§ 395]
Equitable Restrictioxs.
1429
cases in this country the agreement enforced has been
restrictive. Thus, agreements not to use specified limd
for building/^ or for a particular business/^ or for
other than residence purposes/^ have been thus en-
forced, as have agreements not to build within a cer-
tain distance of the street/"* or to erect no building
of less than a certain cost/^ or of a style of construc-
tion other than that named. ^*^ In some cases/" how-
ever, an affirmative agreement in connection with the
land has been regarded as within the doctrine, with
the effect that a purchaser from the promisor with
notice of such an agreement, though he may not be
personally liable for its non performance, takes the
land subject to the possibility that a court of equity
will enforce its performance, or reparation for its
non performance, by a decree in reference to the
land. So an agreement by which, if one uses a wall
constructed by his adjoining owner, he is to pay a
11. Tulk V. Moxhay, 2 Phillips,
774. Wood V. Cooper (1894) 3 Ch.
671; Herriok v. Marshall, 66 :\le.
435; Peck v. Conway, 119 Mass.
546; Lad;l v. City of Boston, 151
Mass. 585, 21 Am. St. Rep.
481, 24 N. E. 858; Phoe-
nix Ins. Co. V. Continental Ins.
Co., 87. X. Y. 400; Hennen v. De-
veny, 71 W. Va. 629, L. R. A.
1917A, 524, 77 S. E. 142.
12. McMahon v. Williams, 79
Ala. 288; Collins Mfg. Co.v. Marcy.
25 Conn. 242; Watrous v. Allen,
57 Mich. 362, 58 Am. Rep. 363,
24 X. W. 104; Post v. Weil, 115
.\. Y. 361; 5 L R. A. 422, 12 Am.
St. Rep. 800, 22 X. E. 145; Stines
V. Dorman. 25 Ohio St. 580.
13. German v. Chapman, 7 Ch.
Div. 271; Parker v. .Nightingale,
6 Allen (Mass.) 341, 83 Am. Dec.
632. Trustees of Columbia Col-
lege V. Lynch, 70 N. Y. 440.
14. Manners v. Johnson, 1 Ch.
Div. 673; Coles v. Sims, 5 De Gex,
M. & G. 1; Linzee v. Mixer, 101
Mass. 512; Sanborn v. Rice, 129
Mass. 387; Ogontz Land & Im-
provement Co. V. Johnson, 168 Pa.
St. 178, .31 Atl. 1008; Branden-
burg V. Lager, 272 111. 622. 112
N. E. 321.
15. Bowes V. Law, L. R. 9 Eq.
636. Page v. Murray, 46 X. J. Eq.
325, 19 Atl. 11; Blakemore v. Stan-
ley, 159 Mass. 6, 33 N. E. 689.
16. Keening v. Ayling, 126
Mass. 404; Landell v. Hamilton,
177 Pa. St. 23, 35 Atl. 242; Clark
V. Martin, 49 Pa. St. 289.
17. Flege v. Covington & C.
Elevated R. & Transfer & Bridge
Co., 122 Ky. 348, 121 Am. St. Rep.
463, 91 S. W. 738; Bailey v. Aga-
wam Nat Bank, 190 Mass. 20, 3
L. R. A. (X. S.) 98, 112 Am. St.
Rep. 296, 5 A. & E. Ann. Cas.
1430 Real Peopekty. [§ 395
certain amount named, has occasionally been regarded
as enforcible against the land in the hands of a pur-
chaser with notice as an equitable rather than a legal
claim. ^^ The adoption of this view, that even an
affirmative agreement may be enforced as against a
purchaser with notice, involves merely a necessity
of regarding such an agreement, if for the payment
of money by the promisor to the jDromisee, as cre-
ating an equitable lien or charge on the lands, ^^ and
if for the doing of another character of act, as justif}"-
ing a decree for the- specific performance of the
agreement. If the agreement neither calls for the
payment of money nor is of such a character that
specific perfonnance would otherwise be decreed, it
would appear to be enforceable in equity as against
such a subsequent purchaser to no greater extent than
it is enforcible at law. Subject to such considerations,
there would appear to be no objection to the applica-
tion of the doctrine which we are now discussing to
the case of an affirmative agreement, except as the
particular court may regard it as impolitic thus to
increase the burdens capable of imposition on land,^°
According to a few decisions, the agreement, even
though restrictive, in order to be thus enforced in
equity against a subsequent purchaser, must ''touch
and concern" land belonging to the person in favor of
whom the agreement is made, by tending to the* phys-
ical advantage of such land, it being insufficient that
553, 76 N. E. 449; Childs v. Boston 18. Sharp v. Cheatham, 88 Mo.
& M. R., 213 Mass. 91, 99 N. E. 498, 57 Am. Rep. 433; Burr v.
957. Carson v. Percy, 57 Miss. 97; Lamaster, 30 Neb. 688, 9 L. R. A.
Burbank v. Pillsbury, 48 N. H. 637, 27 Am. St. Rep. 428, 46 N. W.
475; Gould v. Partridge, 52 N. Y. 1015. See ante. § 393, notes 82-85.
App. Div. 40, 64 N. Y. Supp. 870 19. Post, § 661.
(semble) ; Hlnchman v. Consol. 20. See article by Charles I.
Arizona Smelting Co., 198 Fed. Giddings, Esq., In 5 Harv. Law
^07 (semble). As adverse to the Rev. at p. 279; editorial note in
enforcement of such an affirma- 18 Harv. Law Rev. at p. 214; 3
tive covenant, see Miller v. Clary, Pomeroy, Eq. Jur. § 1295.
210 N. Y. 127, 103 N. E. 1114.
§ 395] Equitable Eestkictions. 1431
it increases its value indirectly by preventing the use
of the adjoining property for a competing business.^ ^
That such an agreement preventive of competition
may be enforced against a subsequent purchaser with
notice is however recognized or assumed in a number
of cases.-- And admitting that the agreement is valid
between the original parties thereto, the fact that its
chief operation is to restrain competition appears to
be hardly a sufficient reason for permitting a subse-
quent purchaser with notice of the agreement to use
the land in contravention thereof.^ ^
Statute of Frauds. The right thus to enforce
an agreement in equity against a subsequent pur-
chaser is, at least in some jurisdictions, independent
of the mode or incidents of its execution. It need not
be a covenant, that is, an agreement under seal, and
it has usually been regarded as sufficient although oral
merely, or merely inferred from the acceptance of a
conveyance containing such a stipulation, or from re-
presentations made upon the sale of land.^^ It is to
21. Taylor v. Owen, 2 Blackf. ridge, 82 111. 267; Watrous v.
(Ind.) 301 (semble); Norcross v. Allen, 57 Mich. 362, 58 Am. Rep.
James, 140 Mass. 188, 2 N. E. 946; 363, 24 X. W. 104; Hodge v. Sloan,
Brewer v. Marshall, 18 X. J. Eq. 107 N. Y. 244, 1 Am. St. Rep. 816,
337, 19 N. J. Eq. 557; Kettle River 17 N. E. 335 (two judges dissent-
R. Co. V. Eastern Ry. Co. of Minne- ing) ; Stines v. Dorman, 25 Ohio
sota; 41 Minn. 461, 6 L. St. 580; Middletown, Town of, v.
R. A. Ill, 43 X. W. 469; Tardy v. Newport Hospital, 16 R. I. 319,
Creasy, 81 Va. 553 (two judges 333, 1 L. R. A. 191, 15 Atl. 800
dissenting); West Virginia Rwy. (semble). See Sutton v. Head,
V. Ohio River Pipe Line Co., 22 86 Ky. 156, 9 Am. St. Rep. 274,
W. Va. 600. See Burdell v. Gran- 5 S. W. 410.
di, 152 Cal. 376, 14 L. R. A. (N. S.) 23. See 17 Harv. Law Rev. at
909, 125 Am. St. Rep. 61, 92 Pac. P 183. article by Prof J. B. Ames.
1022. 24. Spicer v. Martin, 14 App.
22. Catt v. Tourle, 4 Ch. App. Cas. 12; Renals v. Colishaw, 9 Ch.
654; Holloway v. Hill (1902), 2 Div. 125, 11 Ch. Div. 866; Mac-
Ch. 612; Robinson v. Webb, 68 Ala. kenzie v. Childers, 43 Ch. Div.
397, 77 Ala. 176; McMahon v. Wil- 265; Nottingham Patent Brick &
Hams, 79 Ala. 288; Frye v. Part- Tile Co. v. Butler, 15 Q. B. Div.
1432 Real Property. [§ 395
be regretted that the judicial expressions to this effect
have not been accompanied by any explanation of
why the agTeenient is not within the operation of the
Statute of Frauds, a question as to which there ap-
l)ears to be considerable room for discussion.
In two or three states the view has been asserted
that an agreement such as we are now considering
involves the creation of an interest in land, within
the local equivalent of the first section of the English
statute.^" But in view of the fact that that statute
contains a separate provision in reference to proof of the
creation of an express trust, it might perhaps be
questioned whether the first section was intended to
apply to the creation of any equitable interest, and
a like view might perhaps be taken of similar lan-
guage occurring in a state statute. There is one ex-
Illicit decision that an agreement restrictive of the
use of land is not an agreement for the sale of an
interest in land within the fourth section of the stat-
ute,^^ and this seems a rational view, but a contrary
view is asserted in another state. -^ There are two
decisions denying that an agreement that land shall
not be utilized in a particular way is one not to be
performed within one year from the making thereof
261, 16 Q. B. Div. 778; Wliitney 25. Wolfe v. Frost, 4 Sandf.
V, Union Railway Co., 11 Gra\ C^i. (N. Y.) 72; Rice v. Roberts,
(Mass.) 359, 71 Am. Dec. 715; 24 Wis. 461; McCusker v. Goode,
Whittenton Mfg. Co. v. Staples. 185 Mass. 607, 71 N. E. 76;
164 Mass. 319; Allen v. City of Sprague v. Kimball, 213 Mass.
Detroit, 167 Mich. 464, 36 L. R. 380, 100 N. E. 622. And see Tib-
A. (N. S.) 890, 133 N. W. 317; betts v. Tibbetts, 66 N. H. 360,
Tallmadge v. East River Bank, 20 Atl. 979.
26 N. Y. 105; Lewis v. Gollner, 26. Hall v. Solomon, 61 Conn.
129 N. Y. 227, 26 Am. St. Rep. 476, 29 Am. St. Rep. 218, 23 Atl.
516, 29 N. E. 81; Equitable Life 876.
Ass'n Soc. of United States v. 27. Sprague v. Kimball, 213
Brennan, 148 N. Y. 661, 43 N. 5. Mass. 380, 4 L. R. A. 962, 100 N.
173; Lennig v. Ocean City Ass'n, E. 622; Clanton v. Scruggs, 95
41 N. J. Eq. 606, 56 Am. Rep. Ala. 279, 10 So. 757.
16, 7 Atl. 491.
<§ 395] Equitable REsxRirTioxs, 1433
Avitliiu the statute, one decision bein^- based on the
theory that it may be performed within a year,-*^ and
the other upon the theory that the provision does not
apply to a negative contract.-'^ It is, however, difficult
to see how such a contract not limited in time, is
capable of performance in a year, nor is it clearly
apparent that a negative contract does not call for
performance to the same extent as a positive contract,
for the purpose of this provision. In those jurisdic-
tions, however, in which this provision as to agreements
not to be performed within a year has been held not
to apply to a contract based on an executed considera-
tion, or to one which is to be entirely performed by
one party within the year, an agreement incidental to
the sale or conveyance of land would ordinarily not
fall within its operation.'^"-
Conceding that otherwise the agreement in refer-
ence to the land would be within the Statute of Frauds,
it has been suggested that a restrictive agreement,
although oral, might on occasion be enforced on the
theory of part performance,"^^ on that of fraud-*- or on
that of estoppel."'" It would seem, however, somewhat
difficult to bring every case of an oral restrictive
agreement within the operation of either one of these
doctrines. In case, for instance, one conveying land
to another orally agrees, at the time of executing the
conveyance, not to make a particular use of land re-
tained by him, there would appear to be no room for
the application of the doctrine of ])art performance,
nor any sufficient basis for a finding of either estoppel
28. Hall V. Solomon, 61 Conn. ing Co., 15.5 Cal. 402, 101 Pac.
476, 29 Am. St. Rep. 218, 23 Atl. 297.
876. 31. Williams, Vendor & Pur-
29. Leinau v. Smart. 11 chaser (2nd Ed.) 494.
Humph. (Tenn.) 308. 32. Hubbell v. Warren, 8 A'.len
30. That a verbal agreement (Mass.) 173.
not to use land for a certain 33. Lennig v. Ocean City Ass'n,
purpose is within this provision, 41 X. J. Eq. 606, 56 Am. Rep. 16,
see Long V. Cramer Meat & Pack- 7 Atl. 491; Woods v. Lowrance,
1434 Real Property. [§ 396
or frand.^^ The fact that one purchasing land mis-
takenly supposes that an incidental stipulation entered
into by the vendor is legally enforcible, should hardly
operate to estop the vendor from asserting the con-
trary, even though it appears that the former would
not have made the purchase had he been correctly
informed.^^
§ 396. Theory of enforcement. While the right to
enforce in equity an agreement or covenant of a restric-
tive character as against a subsequent purchaser with
notice thereof is generally recognized, the judicial ex-
pressions as to the principle underlying such enforce-
ment are singularly inharmonious. In some cases, the
doctrine appears to be regarded as merely an equitable
application of a legal rule that the burden as well as the
benefit of a covenant which touches and concerns the
land will run with the land, a view which is necessarily
restricted to such states as have adopted the rule that
the burden of a covenant runs with the land at law.^"
In a considerable number of cases the right of enforce-
ment appears to be based on the theory that, in the
view of a court of equity, an easement in the land
is created by an agreement of this character.^^'^
49 Tex. Civ. App. 542, 109 S. W. Me. 242, 88 Atl. 859; Dawson v
418. Western M. R. Co., 107 Md. 70,
34. See Sprague v. Kimball, 14 L. R. A. (N. S.) 809, 126 Am.
213 Mass. 380, 100 N. E. 622. St. Rep. 337, 15 Ann. Cas. 678, 68
35. See Clanton v. Scruggs, 95 Atl. 301; Hogan v. Barry, i43
Ala. 279, 10 So. 757. Mass. 538, 10 N. E. 253; Ladd v.
36. Ante, § 390. City of Boston, 151 Mass. 585, 21
37. McMahon v. Williams, 79 Am. St. Rep. 481, 24 N. E. 858;
Ala. 288; Weil v. Hill, 193 Ala. Chase v. Walker, 167 Mass. 293,
407, 69 So. 438; Tinker v. Forbes, 45 N. E. 916; Brown v. O'Brien,
136 111. 221, 26 N. E. 503; Hutch- 168 Mass. 484, 47 N. E. 195;
inson v. Ulrich, 145 111. 336, 21 L. Riverbank Improvement Co. v
R. A. 391, 34 N. E. 556; Clark Chadwick, 228 Mass. 242, 117 N.
V. McGee, 159 111. 518, 42 N. E. E. 244; Allen v. City of Detroit,
965; Herrick v. Marshall, 66 Me. 167 Mich. 464, 133 N. W. 317, 36
435; Leader v. La Flamme, 111 L. R. A. (N. S.) 890; Bowen v.
§ 396]
Equitable Restrictions.
1435
This latter theory has been adopted by the later
English cases,^^ and has been there applied to the
extent of holding that, as a legal easement requires
a dominant as well as a servient tenement,^^ so an *' equi-
table easement," requires a dominant tenement, that is,
such an easement can be created by a restrictive cove-
nant only if the covenantee has an interest in the
land sought to be benefitted, with the result that if
the covenantee has not such an interest, a purchaser
from the covenantor, although taking with notice of the
covenant, is not atfected thereby.^*^
The theory referred to, that a restrictive agree-
ment operates to create an easement for the i^urposes
of a court of equity, though favored by the later
English cases, and frequently referred to with ap-
proval by most respectable American courts, is by no
means entirely satisfactory.^'^ ^ If what is in form a
Smith, 76 N. J. Eq. 456, 74 Atl.
675; Trustees of Columbia Col-
lege V. Lynch, 70 N. Y. 440; Muz-
zarelli v. Hulshizer, 163 Pa. St.
643, 30 Atl. 291; Green v. Creigh-
ton, 7 R. I. 9.
38. The adoption of this view
by the English courts dates from
the dictum, entirely uncalled for,
of Jessel, M. R., in London &
Southwestern Ry. Co. v. Gomm,
20 Ch. D. 562, that "the doctrine
of Tulk V. Moxliay, 2 Phil. 774,
rightly considered, appears to me
to be either an extension in
equity of the doctrine of Spen-
cer's case to another line of
cases, or else an extension in
equity of the doctrine of negative
easements." See, in support of
this view, editcrial notes in^ 2S
Harv. Law Rev. at p. 201, 31 Id.
at p. S76.
39. Ante, § 348.
40. Formby v. Barker (1903),
2 Ch. 539; :\lillbourn v. Lyons
(1914), 1 Ch. 34; Lon:^on County
Council v. Allen (1914), 3 K. B.
642. In the latter case two of the
three judges indicate dissatisfac-
tion with the theory which com-
pelled such a decision.
Likewise, on the analogy of
easements, it has, in Massachu-
setts, been decided that the benefit
of a restrictive agreement by the
grantee of land would not pass on
a subsequent conveyance of
neighboring land in which the
promisee had merely an undivid-
ed interest, since a contrary view
would involve in effect a reser-
vation of an easement in favor of
a person not of a party to the con-
veyance, that is, the owner of the
other undivided interest. Hazen
v. Mathews, 184 Mass. 388, 68 N.
E. 838.
40a. The covenants thus en-
forced against an assignee of the
l-tSO Eeal Property. [§ 396
contract not to use tlie land in a particular manner
creates an easement as to the use of the land, it should,
one would suppose, create it for the purposes of a
court of law as well as of a court of equity. It is
difficult to understand how language which, when under
consideration in a court of equity, is regarded as cre-
ating an easement can, when under consideration in a
court of law, be regarded as creating a contract only.^^
It is no doubt true that an easement can be created by
what are in form words of covenant,"'^ but that is by
reason of the construction placed upon these
words as being in effect words of grant, for the pur-
liose of a court of law as well as of equity. It is
somewhat noticeal)le that even courts which empha-
size the theory of "equitable easement" for the pur-
pose of making effective a restrictive covenant as
against a subsequent purchaser of the land, ordinarily
regard words of covenant restrictive of the use of
land as creating, for other purposes, merely a cove-
nant.^"^ That is, the courts ignore the possible operation
of such words as creating an equitable easement
rather than a covenant, except when it is convenient to
regard them as creating such an easement for the pur-
])ose of making them effective against a subsequent
purchaser.
The more satisfactory theory, it is conceived, in
regard to the enforceability in equity of restrictive
covenantor are, as hereafter stat-- case of a deviation of a few inches
ed, usually restrictions upon the from a building line, or a re-
character or location of the build- striction as to the use to be made
ing to be erected, or business to of the land, or the cost of the
be maintained, on the land, and building thereon,
such covenants are, in some of the 41. See the remarks of Wilde,
cases last cited, said to create J., in Hurd v. Curtis, 19 Pick,
easements of light, air, and pros- (Mass.) 459, quoted ante, § 391,
pect. They are, however enforced note 29.
even when their violation could 42. Ante, § 361.
not involve any interference with 43. See 1 Tilfany, Landlord &
light, air, or prospect, as in the Tenant, § 123.
<^ 396] Equitable Eestbictioxs. 1437
agreements against purchasers with notice is that equi-
ty regards such an agreement as vesting in tlie prom-
isee a right to specific enforcement by means of an
injunction or otherwise, not only as against the origi-
nal promisor, but also as against a subsequent holder
of the property, if not a purchaser for value without
notice.^^ If the right to equitable relief could not thus
be asserted as against a subse([uent holder of the
property, the result would be that the promisee could
be deprived of such right, in practically every case,
by a collusive transfer on the i)art of the promisor.
The doctrine, properly regarded, appears to be closely
analagous to that by which the equitable right to spe-
cific performance of a contract is enforced as against
a subsequent holder of the property, not a bona fide
purchaser for value, by a decree requiring him to make
a conveyance in conformity to the contract, as well as
to the doctrine that a trust may be enforced as against
a purchaser from the trustee under like circumstances.
Sucn a right as to the use of land, created by contract
and capable of enforcement as against a subsequent
holder of the land, resembles likewise an equitable lien
created by a contract subjecting the land to a pecuniaiy
claim l)y way of security for the claim.
It has in England been decided that one who ac-
quires the land by adverse possession takes it subject
to a restrictive agreement to which it was subject in the
hands of the rightful owner.^"^ This decision appears,
44. See the discussion in Sug- at p. 119, 17 Harv. Law Rev. at
den, Vendors & Purchasers (14th p. 415, 21 Id. 139; De Gray v.
Ed.) 802 et seq. Maitland, Equity Monmouth Beach Club House Co.,
165; articles by Prof. J. B. Ames 50 X. J. Eq. 329, 24 Atl. 388;
in 17 Harv. Law Rev. at p. 174, Cotton v. Cress3, 80 N. J. Eq.
Lectures on Legal History, 381; 540, 85 Atl. 600. 49 L. R. A. (X. S.)
by T. Cyprian Williams, Esq., in 357.
51 Solicitors' Journal 141; by Pro- 45. Re Xisbet & Potts' Con-
fesor Harlan F. Stone, in 18 Co- tract (1905), 1 Ch. 391, (1906) 1
lumbia Law Rev. at p. 291; edi- ch. 386.
torial notes in 4 Law Quart. Rev.
2 R. P.— 16
1438 Ebal Pkoperty. [§ 397
to some extent at least, to be based on tbe theory, re-
ferred to in the preceding paragraph, that the right
created by such an agreement is in the nature of an
easement. Attention has been called by an able writer^''
to the difficulty of harmonizing this decision, which in
effect regards an equitable claimant as unaffected by
the fact that the holder of the legal title is barred
under the statute of limitation, with the rule*' that a
cestui que trust is barred when the holder of the legal
title is barred, and suggestions have been made that
in view of this decision, the rule that a cestui que trust
is barred when the holder of the legal title is barred
must be regarded as having been superseded as a
result of the language used in the Statute of Limita-
tions now in force in that country.*^
§ 397. Persons subject to restriction. So far as
the agreement which is sought to be enforced against a
subsequent holder of the land concerns, as is almost in-
variably the case, the use to be made of the land, it is
a question of primary importance whether the agree-
ment concerns the use to be made thereof by the prom-
isor only, or the use to be made thereof by others as
well. A use by a subsequent purchase cannot well be
restrained if the agreement was intended to prevent
the promisor only from making such use.*'' What the
intention was in this regard is a question of construc-
tion, but since it is ordinarily immaterial to the
promisee who may make any particular use of the
property, the presumption would seem to be, in the
absence of a clear showing to the contrary, that such
a use by any person whomsoever is intended,^'' and
46. T. Cyprian Williams, Esq., 49. Kemp v. Bird,' 5 Ch. Div.
in 51 Solicitors' Journal at pp. 974; Re Fawcett v. Holmes, 42
141, 155. Ch. Div. 150; Brigg v. Thornton
47. Ante. § 103, note 4. (1904), 1 Ch. 386; Pythian Castle
48. Lightwood, Time Limits of Ass'n of Sacramento v. Daroux,
Actions, 80; article by Charles 172 Cal. 510, 157 Pac. 594.
Sweet, 19 Juridicial Review, 67. 50. See HoJge v. Sloan, 107 N.
§ 398]
Equitable Eestrictions.
1439
an intention to this effect would appear to be clearlT
indicated by the fact that the agreement in terms
binds the promisor's as;?igns,^^ or that the agreement
is in an impersonal form, that the land shall not be
used in a particular way.
§ 398. Notice. As above stated, a restrictive agree-
ment is enforced in equity against a subsequent pur-
chaser only when he takes with notice thereof.^- Such
notice may be either actual or constructive,^^ and the
purchaser is, in accordance with the general rule as
to notice,-^^ charged with notice of anything showing
or imposing such a restriction which may be con-
tained in a conveyance in the chain of title under
which he claims,"" and whether such a conveyance is
recorded is necessarily immaterial in this regard.^^
Y. 244, 1 Am. St. Rep. 816, 17 N.
E. 335; Fuller v. Arms, 45 Vt. 400.
51. Holloway Brothers v. Hill
(1902), 2 Ch. 618. See Hartz v.
Kales Realty Co., 178 Mich. 560,
146 N. W. 160; Pavkovich v.
Southern Pac. R. Co., 150 Cal.
39, 87 Pac. 1097.
In Los Angeles Terminal Land
Co. V. Muir, 136 Cal. 36, 68 Pac.
308, it appears to be considered
that if the restriction does not
in terms purport to bind assigns
or grantees, it cannct be enforced
against them. And see Pythian
Castle Ass'n of Sacramento v.
Daroux, 172 Cal. 510, 157 Pac.
594; Wood V. Stehrer, 119 Md.
143, 86 Atl. 128.
52. Carter v. Williams, L. R. 9
Eq. 678; Nottingham Co. v. Butler,
16 Q. B. Div. 778, 787; Rowell v.
Satchell (1903) 2 Ch. 212; Judd
V. Robinson, 41 Colo. 222, 124 Am.
St. Rep. 128, 14 Ann. Cas. 1018,
92 Pac. 724; Washburn v. Miller,
117 Mass. 376; Moller v. Presby-
terian Hospital, 65 N. Y. App. Div.
134.
53. Wilson v. Hart, 1 Ch. App.
463; Spicer v. Martin, 14 App.
Cas. 12; Patman v. Harland, 17
Ch. Div. 353.
54. Post, § 572,
55. Patman v. Harland, 17 Ch.
Div. 353; W^iegman v. Kusel, 270
111. 520, 110 N. E. 884; Duncan v.
Central Passenger Ry. Co., 85 Ky.
525, 4 S. W. 228; Peck v. Conway,
119 Mass. 546; Oliver v. Kalick,
223 Mass. 252, 111 N. E. 879;
Zoller V. Goldberg, 183 Mich. 197,
149 N. W. 089; Wabash, St. L. &
■P. Ry. Co., 24 Mo. App. 199;
Brewer v. Marshall, 19 N. J. Eq.
537; Smith v. Graham, 217 N. Y.
G55, 112 N. E. 1076*. See Norfleet
V. Cromwell, 64 N. C. 1.
56. Occasional statements that
the purchaser is, in the particular
.jcase, charged with notice of the
agreement because the convey-
1440 Eeal Property. [§ 398
If, however, the agreement is contained in a conveyance
which is not in the chain of title, but which was made
by a prior owner of neighboring land, the question of
its record may be material for the purpose of charging
a purchaser with notice of the agreement, and such may
also be the case when the agreement is not contained
in a conveyance of land, but is incorporated in an
independent instrument. The former case, that of an
agreement contained in a conveyance not in the chain
of title of the person against whom it is sought to en-
force it, is elsewhere discussed,^' and the question of
the record of an independent restrictive agreement
will here alone be referred to. Whether such an agree-
ment is entitled to be recorded, so that its record will
affect the purchaser wnth constructive notice thereof
is obviously a question to be determined by the lan-
guage of the state recording law.'''*
In accordance with the general equitable rule that
a purchaser with notice from a ])urcliaser without
notice takes free of the equity,-'^ the etfect of the ac-
quisition of the property by one having no notice of
the restrictive agreement is to put an end to the
enforceability of the agreement as against the land.'"'^
There are in England occasional dicta^^ that a
bona fide ])urcliaser for value of an e(|uitable, as dis-
tinguished from a legal, estate, takes subject to the
burden of a restrictive agreement, the element of notice
ance in his chain of title in which Sjoblom v. Mark, 103 Minn. 193.
it is contained is of record. 15 L. R. A. (N. S.) 1129, 114 N.
(Schadt V. Brill, 173 Mich. 647, W. 746.
45 L. R. A. (N. S.) 726, 139 N. 59. Post. § 575.
W. 878; :\Iiller v. Klein, 177 Mo. 60. Roak v. Davis, 194 Mass.
App. 557, 160 S. W. 562; Bowen v. 481, 80 N. E. 690; Wilkes v.
Smith, 76 N. J. Eq. 456, 74 Atl. Spooner [1911] 2 K. B. 473.
675) appear to be beside the mark. 61. London & S. W. Rwy. Co.
57. Post, § 567(d). v. Gomm, 20 Ch. Div. 562; Rogers
58. That it is entitled to record v. Hosegood [1900], 2 Ch. 388,
see Bradley v. Walker, 138 N. Y. 405; Osborne v. Bradley [1903],
291, 33 N. E. 279; Boyden v. Rob- 2 Ch. 446, 451.
erts, 131 Wis. 659, 111 N. W. 701;
§ 399] Equitable Restrictions. 1441
being thus niaterijil only Avheii the agTeement is as-
serted as against a purchaser of the legal estate. This
accords with the rule generally stated, that the doc-
trine of bona fide purchase for value does not operate
to protect the purchaser of a merely equitable interest,
but the soundness of the rule from the standpoint of
principle may be doubted''- and, as has been remarked,
it is difficult to see the justice of exempting the bona
fde purchaser of a legal fee simple from the burden of
a restrictive covenant while not exempting such a pur-
chaser of an equitable fee simple.**^
§ 399. Persons entitled to enforce restriction. The
person with whom the agreement was made, owning
land in the neighborhood which might be benefitted by
reason of the restriction, may no doubt proceed in
equity for its enforcement. If on the other hand he
has no land to be benefitted by the enforcement of the
restriction, he cannot, by the weight of authority,^"*
62. See article by Professor Law Rev. at p. 58, 27 Harv. Law
J. B. Ames, in 1 Harv. Law Rev. at p. 493, 16 Mich. Law Rev. at
at p. 8, et seq., Lectures on Legal p. 97. In Massachusetts it has
History p. 263, et seq. heen decided that the original
63. See article by Professor vendor, who has disposed of all
Ames in 17 Harv. Law Rev. at his land, may properly join in
p. 178, note. Lectures on Legal a suit by one of his vendaes
History at p. 385. against another to enforce a rt-
64. Forman v. Safe Deposit & striction. Riverbank Improve-
Trust Co., 114 Md. 574, 80 Atl. ment Co. v. Bancroft, 209 Mass.
i98; Genung v. Harvey, 79 N. J. 217, 34 L. R. A. (N. S.) 730, 95
Eq. 57, 80 Atl. 955; St. Stephens X. E. 216. That the heirs of a
Church V. Church of Transfigura- promisee who disposed of all his
tion, 201 N. Y. 1; Los Angeles land cannot enforce the restric-
University v. Swarth, 107 Fed. lion, see Graves v. Deterling, 120
798, 54 L. R. A. 262, 46 C. C. A. N. Y. 447, 24 N. E. 655.
047. See Trustees v. Lynch, 70 In England the fact that the
N. Y. 440; Dana v. Wentworth, promisee had parted with all his
111 Mass. 191. property was considered not to
A contrary view is adopted in preclude him from enforcing tlio
Van Sant v. Rose, 260 III. 401, restriction when its violation
103 N. E. 194, criticized in 9 111. subjected him to a possible lia-
1442 Eeal Property. [§ 399
obtain such relief, a view which accords with the
general practice of courts of equity, to give relief only
in favor of one who shows an interest in the subject
matter of the suit.
As regards the right of one claiming under the
person with whom the agreement was made, to enforce
the agreement, the cases are usually to the effect that,
provided the agreement was intended to benefit par-
ticular land belonging to the promisee, rather than the
promisee personally, and not otherwise, any pur-
chaser of the whole or of part of that land is entitled
to enforce the agreement to the same extent as the
promisee himself could have enforced it.*^^ In such
case the benefit of the agreement passes as incident to
the land which the agreement was intended to benefit,
in the same manner as the benefit of a covenant runs
with the land at law.^^ The question ordinarily arises
in connection with a restrictive agreement entered into
by the grantee of land with his grantor, who subse-
quently transfers adjoining land, in whole or in part, to
another, who undertakes to assert the agreement as
against the original grantee or one claiming under such
grantee. In some cases the fact that the person with
whom the agreement was made had at the time neigh-
boring land which might be benefitted by compliance
with the restriction appears to be regarded as sufficient
to show that the agreement was intended to benefit the
bility for breach of covenant of Mass. 381; Skinner v. Shepard,
title. Spencer v. Bailey, 69 Law 130 Mass. 180; Beals v. Case, 138
Times. 179. Mass. 138; Clapp v. Wilder, 176
65. Keates v. Lyon, 4 Ch. App. Mass. 332, 50 L. R. A. 120, 51 N.
218; Renals v. Colishaw, 9 Ch. E. 692; De Gray v. Monmouth
Div. 125, 11 Ch. Div. 866; Leek Beach Club House Co., 50 N. J.
V. Meeks, — Ala. — , 74 So. 31; Eq. 329, 24 Atl. 388; Equitable
Berryman v. Hotel Savoy Co., Life Assur. Soc. of United States,
160 Cal. 559, 37 L. R. A. (N. S.) v. Brennin, 148 N. Y. 661, 43 N.
5, 17 Pac. 677; Hay v. St. Paul E. 173; Duester v. Alvin, 74 Ore.
M. E. Church, 196 111. 633, 63 N. 544, 145 Pac. 660.
E. 1040; Sharp v. Ropes, 110 66. Ante, § 389.
§ 399]
Equitable Eestbictions.
1443
land, so that it would enure to a subsequent purchaser
of a part or the whole thereof.''" In other cases a
contrary view is taken, that the person claiming the
right to enforce the restrictive agreement as transferee
of land which belonged to the promisee has the burden
of showing that the agreement was intended to benefit
the promisee's land rather than the promisee per-
sonally.^^ Adopting the latter view, it is not entirely
clear how this intention may be shown. In England and
in two or three states the rule appears to be that,
unless the restriction is in aid of some common plan or
general scheme of development,^^ it must be shown by
the language of the instrument itself in which the
agreement appears,^*^ construed with reference to the
67. McMahon v. Williams, 79
Ala. 288. Leek v. Meeks, — Ala. — ,
74 So. 31; Roberts v. Porter, 100
Ky. 130, 37 S. W. 485; Herriek
V. Marshall, 66 Me. 435; Peck v.
Conway, 119 Mass. 546 (semble) ;
Watrous v. Allen, 57 Mich. 362,
58 Am. Rep. 363, 24 N. W. 104;
Hartwig v. Grace Hospital, 198
Mich. 725, 165 N. W. 827; Post
V. Weil, 115 N. Y. 361, 5 L. R. A.
422, 12 Am. St. Rep. 809, 22 N.
E. 145; Clark v. Martin, 49 Pa.
289; Muzzarelli v. Holshizer, 163
Pa. 643, 30 Atl. 291; Ball v. Mul-
liken, 31 R. L 36, 37 L. R. A. (N.
S.) 623, Ann. Cas. 1912B, 30, 76
Atl. 789.
68. Keates v. Lyon, L. R. 4 Ch.
218; Berryman v. Hotel Savoy
Co., 160 Cal. 559, 117 Pac. 677,
37 L. R. A. (N. S.) 5; Loomis v.
Collins, 272 111. 221 111 N. E. 999;
Sharp V. Ropes, 110 Mass. 381;
Skinner v. Shepard, 130 Mass. 181;
Lowell Institute for Savings v.
Lowell, 153 Mass. 530, 27 N. E
518; Hobart v. Weston, 223 Mass.
161, 111 N. E. 779; Coughlin v.
Barker, 46 Mo. App. 54. Helm-
eley v. Marlborough House Co.,
62 N. J. Eq. 164, 50 Atl. 14; Mc-
Nichol V. Towsend, 73 N. J. Eq.
276, 67 Atl. 938, 73 N. J. Eq. 276,
70 Atl. 965.
69. Post, § 400.
70. Renals v. Colishaw, 9 Ch.
Div. 125; Reid v. Bickerstaff
(1909), 2 Ch. 305. Judd v. Robin-
son, 41 Colo. 222, 124 Am. St.
Rep. 128, 92 Pac. 724, 14 Ann.
Cas. 1018; Helmsley v. Marl-
borough Hotel Co., 62 N. J. Eq.
164, 63 N. J. Eq. 804; Sailer v.
Padolski, 82 N. J. Eq. 459, 88
Atl. 967; Skinner v. Shepard, 130
Mass. 180; St. Patricks Religious
etc., Ass'n v. Hale, 227 Mass. 175,
116 N. E. 407. See Beetem v.
Garrison, 129 Md. 664, 99 Atl. 897 ;
Equitable Life Ass'n. Soc. of
United States v. Brennan, 148 N.
Y. 661. 43 N. E. 173.
In Kiley v. Hall, 96 Ohio, 374,
117 N. E. 359, it was considered
necessary, in order to enable the
1444 Real Property. [§ 399
surrounding circumstances,"' but occasionally the view
has been indicated that such an intention may be in-
ferred from the surrounding circumstances alone, with-
out reference to whether the instrument contains any
indication of intention in this regard.'^ Conceding that
the intention to benefit the land must appear from the
instrument itself in which the agreement occurs, the
fact that the agreement is in terms with the promisee
and his assigns would seem to be sufficient for this
purpose"'^ and that the agreement was with the i^romisee
and his heirs has been given this effects*
In England the view has obtained that, although
the agreement was not originally intended to benefit
the land, the promisee may, upon the subsequent sale by
him of the land, make the agreement enure to the
l)enefit of the purchaser by the indication of an inten-
tion to that effect, that is, he may, as it were, annex
the agreement to the land by making it a part of the
subject of the sale.''^ Whether this power in the prom-
grantee of a lot to enforce a re- ■ Safe Deposit & Trust Co., 114 Md.
s^triction inserted in the convey- 574, 80 Atl. 298; Badger v. Board-
ance of a neighboring lot from man, 16 Gray (Mass.) 559; JewelJ
the common grantor, that the v. Lee, 14 Allen (Mass.) 145, 92
latter grantee had reason to know Am. Rep. 744; Beals v. Case, 138
either that the restriction in the Mass. 138; Lowell Institute for
deed to him was intended for Savings v. Lowell, 153 Mass. 530,
the benefit of the owners of other 27 N. E. 518; Phoenix Ins. Co. v.
lots, as well as of the grantor Continental Ins. Co., 87 N. Y. 400;
or that there was a common plan Ball v. Mulliken, 31 R. I. 36, 76
of improvement. Atl. 789. 37 L. R. A. N. S. 623;
Hennen v. Deveny, 71 W. Va 629,
71. See Hays v. St. Paul M.
E. Church, 196 111. 633, 63 N. E.
1040; Coughlin v. Barker, 46 Mo.
App. 54; Clapp v. Wilder, 176
Mass. 332, 57 N. E. 692, 50 L. R.
L. R. A. 1917A, 524, 77 S. E. 142.
73. Mann v. Stephens, 15 Sim.
377; Nlcoll v Flenning, 19 Ch. D.
258; Codman v. Bradley, 201 Mass.
361, 87 N. E. 591. See McMahon
A. 120; Hennen v. Deveny, 71 W. ^ Williams, 79 Ala. 288.
Va. 629. L. R. A. 1917A. 524, 77 ,^ iHelmsley v. Marlborough
^- ^- ^^'^- Hotel Co.. 68 X. J. Eq. 596, 61 Atl.
72. Peabody Heights Co. v. 455.
Wilson, 82 Md. 186, 36 L. R. A. 75. Renals v. Cowlishaw, 9 Ch.
393, 32 Atl. 386, 1077; Forman v. Div. 125, 11 Ch. Div. 866. Cas.
§ 399] Equitable Eesteictioxs. 1445
isee to annex the agreement to the land is to be
regarded as based on an intention in the promisor to
confer on him such power, or is entirely independent
of the intention of the promisor, does not clearly ap-
\)em', and recognition of any such a power ai)pears to
be unnecessary and confusing. As has been remarked
b}^ a writer of great discrimination: ''The instances
must be rare in which a promisor, willing to give the
promisee the power of transferring the benefit of the
agreement, would care whether the power were exer-
cised by a double assignment of land and agreement or
by the mere assignment of the land. Xor is it easy
to see why this distinction should be of value to the
promisee. For if the agreement be interpreted in the
wider sense, as intended to give the benefit to the
promisee and any assignee of the land as sucli, a
promisee, washing under exceptional circumstances to
convey the land without the benefit, could easily re-
lease the restriction to the land about to be con-
veyed."''' This doctrine does not appear to have been
adopted in this country.
There are occasional dicta to the elTect that, even
in the absence of a general plan,''^'' a restrictive agree-
ment may be enforced by one who is neither the orig-
inal promisee, nor a. successor in interest of the latter,
provided he owned neighboring land at the time of the
agreement, and it was the intention that he should en-
joy the benefit thereof.'''**
If the agreement was for the benefit of particular
land, not only a subse(iuent grantee in fee of such
land, but a lessee thereof for years, is entitled to assei-t
the agreement.""
489; Spicer v. Martin, 14 App. 76a. J'omi^ § 400.
Cas. 12; Rogers v. Hosegood 76b. Hays v. St. Paul M. E.
(900), 2 Ch. 388, 408; Nalder etc. Church, 196 IH. 63.'i, 63 N. E. 1040;
Brewery Co. v. Harraan, 82 Law Doerr v. Cobbs, 146 Mo. App. 342.
Times 594. 123 S. W. 547. See editorial not'i,
76. Professor J. B. Ames, in 12 Columbia Law Rev. 158, and
17 Harv. Law Rev. 174, Lectures Post, § 400, note 83.
on Legal History, 381. 77. Taite v. Gosling, 11 Ch. D.
1446 Real Peopebty. [§ 400
The right of a subsequent grantee of the land for
the benefit of which the agreement was made to assert
the agreement is, it has been decided, independent of
whether he knew of its existence at the time of the
conveyance to himJ^
An agreement restricting the use of a particular
tract of land is prima facie not to be construed as in-
tended to restrict the use of one part of the tract in
favor of another part thereof. For instance, an
agreement by the grantee of land with his grantor
that he will not make a particular use of the land con-
veyed cannot ordinarily be asserted by a subsequent
purchaser of a part of that land as against the owner
of another part.'^^
§ 400. Existence of general plan. The question of
who may enforce a restrictive agreement as to the use
of land has arisen most frequently in connection with
agreements entered into in furtherance of some general
plan or scheme of improvement devised by the owner
of land upon its division into building lots, it being
intended that the purchasers of lots shall, for the
common benefit of all, utilize the lots only in accord-
ance with such plan. The cases are to the effect that
when such a general plan exists, any purchaser of a
lot with knowledge of such plan may assert the
restrictions involved therein as against any other pur-
chaser.^*^ In spite of the unanimity with which the
273; Johnson v. Robertson, 156 1, 127 Am. St. Rep. 925, 85 N. E.
Iowa, 64, 135 N. W. 585. 687; Lewis v. Ely, 100 N. Y. App.
78. Rogers v. Hosegood (1900), Div. 252; Wright v. Pfrimmer, 99
2 Ch. 388, 407; Child v. Douglas. Neb. 447, 156 N. W. 1060; Contra
Kay 560, 571. Winfield v. Henning, 21 N. J. Eq.
79. King V. Dickson, 40 Ch. D. 188; Boyden v. Roberts, 131 Wis.
596; Graham v. Hite, 93 Ky. 474, 659, 111 N. W. 701 (two judges
20 S. W. 506; Jewell v. Lee, 14 dissenting).
Allen (Mass.) 145, 92 Am. Dec. 80. Spicer v. Martin, 14 App.
744; Dana v. Wentworth, 111 Cas. 12; Mackenzie v. Childers, 43
Mass. 291; Korn v. Campbell, 192 Ch. Div. 265. Alderson v. Cutting,
N. Y. 490, 37 L. R. A. (N. S.) 163 Cal. 503, 126 Pac. 157; Mc-
§ 4()0] Equitable Kestrictioiss. 1447
courts, when the matter has been presented, have ac-
cepted this doctrine, there is a singular and disap-
pointing lack of explanation of the principle on which
it is to be regarded as based. As between two pur-
chasers of different lots at different times, the right
of the later purchaser to enforce the agreement of
the earlier purchaser is readily explicable on the
theory that the existence of the general plan shows an
intention that such agreement shall enure to the bene-
fit of all the lots not then disposed of by the common
vendor, so that, upon the subsequent sale of one of
these latter lots, the purchaser thereof will, in ac-
cordance with the rule before stated, ^^ be entitled to
enforce the agreement. But this does not explain how
an earlier purchaser is enabled to enforce a restrictive
agreement entered into at a later date by a later pur-
chaser. An agreement cannot well pass on a transfer of
land unless there is an agreement then in existence to
pass.^- In some of the states the right of the prior
Neil V. Gary, 40 App. D. C. 397, v. Lottman, — Tex. Civ. — , 171,
46 L. R. A. (N. S.) 1113; Parlter 171 S W. 27; Boyden v. Roberts,
V. Nightingale, 6 Allen (Mass.) 131 Wis. 659, 111 N. W. 701.
341, 83 Am. Dec. 632; Evans v. It has been held that if one
Foss, 194 Mass. 513, 9 L. R. A. includes in a common plan not
(N. S.) 1039, 80 N. E. 587; Allen only his own land, but adjoining
v. Barrett, 213 Mass. 36, 30 Ann. land which he does not own, and
Cas. 820, 99 N. E. 575; Allen v. he subsequently acquires this
Detroit, 167 Mich. 464, 36 L. R. A. land, a purchaser of lots therein
(N. S.) 890, 133 N. W. 317; Reed from him takes it subject to the
V. Hazard, 187 Mo. App. 547, 174 plan. Schmidt v. Palisade Supply
S. W. Ill; Winfield v. Henning 21 Co., — N. J. Ch. — , 84 Atl. 807.
N. J. Eq. 133; De Gray v. Mon^ The equitable obligation in effect
mouth Beach Club House Co., 50 attaches to the land when it is
N. J. Eq. 329, 24 Atl. 388, 67 N. .acquired by him. See 13 Colum-
J. Eq. 731, 63 Atl. 1118; Mulligan bia Law Rev. at p. 77.
V. Jordan, 50 N. J. Eq. 363, 24 Atl. 81. Ante, § 399.
543; Hyman v. Tash — (N. J. Eq.) 82. Summers v. Beeler, 90 Md.
— , 71 Atl. 742; Tallmadge v. East 474, 45 Atl. 19, 48 L. R. A. 54, 78
River Bank, 26 N. Y. 105; Barron Am. St. Rep. 446; Mulligan v. Jor-
V. Richard, 8 Paige (N. Y.) 105; dan, 50 N. J. Eq. 363. 24 Atl. 543;
Wallace v. Clifton Land Co., 92 Helnisley v. Marlboro Hotel Co..
Ohio St. 349, 110 N. E. 94; Hooper 62 N. .1. Eq. 164. 63 N. J. Eq.
1448 Real Pkopekty. [§ 4U0
purchaser to enforce the subset|uent agreement
of another purchaser might he supported on
the ground that the beneficiary of a contract,
although not a party thereto, can maintain suit
thereon. ^^ In jurisdictions which do not concede such
a right to the beneficiary of a contract, the view might
perhaps be adopted that what the prior purchaser in
such case is allowed to enforce is, not the agreement
entered into by the subsequent purchaser, but an
agreement to the same elTect, entered into by the
common vendor, either expressed, or inferred from the
existence of a common plan of improvement. That is,
if diiferent persons purchase lots from A and there
is a common plan of improvement brought by A to
the knowledge of each purchaser, this evidences an
agreement by A with each purchaser that the lots
subsequently to be sold by him shall not be utilized
in violation of such plan, and this agreement can be
enforced as against any subsequent purchaser (with
notice thereof) from A, without regard to the agree-
ment in this regard between such subsequent pur-
chaser and A. It must be conceded, however, that
such a theory has but rarely been judicially asserted,^"*
and the courts, in adjudicating the right of purchasers
S04, 52 Atl. 1132; Leaver v. Gor- plained upon established prin-
man, 73 N. J. Eq. 129, 67 Atl. ciples, but must be accepted as
111; McNichol v. Townsend, 73 a further extension of equity jur-
N. J. Eq. 276, 70 Atl. 965; Dosrr isprudence, whereby in a limited
V. Cobbs, 146 Mo. App. 342, 123 S. class of cases the interests of
W. 547; Wright v. Pfrimmer, 99 beneficiaries of a contract are
Xeb. 447, 156 N. W. 1060. recognized and protected."
83. See Pollock, Contracts. 8^- It is more or less clearly
(Williston's Edition) at p. 237 et indicated in Talmadge v. East
ggq_ Eivei- Bank, 26 X. Y. 105; Equi-
In a discriminative note in 12 table Life Insurance Coc. v. Bren-
Columbia Law Rev. at p. 160, this nan, 148 N. Y. 661, 43 N. E. 173 ;
theory is adopted to explain the Lawrence v. Woods, 54 Tex. Civ.
reciprocal rights of the purchas- App. 233, 118 S. W. 551; Spicer
ers under a general plan, it being v. Martin, 14 App. Cas. 2. See
said that the results reached by 5 Harv. Law Rev. at p. 283, article
the courts "cannot be entirely ex- by Charles I. Giddings. Esq.
§ 4(J(Jj EQUITABLE IlESTlilCTIOXS. 144*J
under a comiiioii plan to enforce restrictions as be-
tween themselves, base this right in terms not upon the
implication of an agreement by the common vendor,
but upon the express agreements entered into by the
purchasers themselves. Furthermore the Statute of
Frauds might possibly operate to deprive of legal ef-
fectiveness an agreement so implied from oral state-
ments as to a general plan. Another explanation
which has been given of the rights of enforcement as
between various purchasers is that the equity "springs
from the presumption that each purchaser has paid
an enhanced price for his property, relying on the
general plan, by which all the property is to be sub-
jected to the restricted use, being carried out, and
that while he is bound by and observes the covenant,
it would be inequitable to him to allow any other
owners of lands, subject to the same restrictions, to
violate it."^^ And it has also been said that in such
case the covenant is enforceable by any grantee against
any other upon the theory that there is a mutuality of
covenant and consideration which binds each, and
gives to each the appropriate remedy.^'''
The question of the existence of a general plan is
one of fact, to be determined with reference to the
particulars and conditions of the laying out and sale of
the lots, as indicated either verbally or in writing.^^ That
the vendor retains adjoining property without himself
85. De Gray v. Monmouth necessarily requires and imports
Beach Club House Co., 50 N. J. reciprocity of obligation.
Eq. 329, 24 Atl. 388, per Green, 87. See Hano v. Bigelow, 155
V. C. Ma.ss. 341, 29 N. E. 628; Allen v.
86. Korn v. Campbell, 192 N. Barrett, 213 Mass. 36, 99 N. E.
Y. 490, 37 L. R. A. (N. S.) 1, 85 r.75; Sprague v. Kimball. 213
N. E.. 689, per Werner, J. And Mass. 380, 100 N. E. 622; Barton
see Parker v. Nightingale, 6 y. Slifer, 72 N. J. Eq. 812, 66 Atl.
AJlen (Mass.) 241. ^99; Foreman v. Sadler, 114 Md.
So in Spicer v. Martin, 14 App. 574, 80 Atl. 298; Be Birmingham
Cas. 12, Lord Macnaghten says & District Land Co., (1893), 1 Cli.
that the community of interest 342.
1450
Real. Peopekty.
[§ 400
entering into any agreement similar to that which he
exacts from purchasers has been regarded as tending
to show the absence of a general plan enuring to the
benefit of all the purchasers.«« That similar agree-
ments were exacted of a considerable portion of the
purchasers does not of itself show the existence of a
general plan.^** On the other hand the fact that agree-
ments are not exacted of a portion of the purchasers
has been decided not to show the non existence of
a general plan.^° The fact that a like agreement was
exacted from all of the various purchasers has been
regarded as showing the existence of a general plan,^i
88. Keates v. Lyon, 4 Ch. at p.
225; Osborne v. Bradley (1903), 2
Ch. at p. 454; Sharp v. Ropes,
110 Mass. 381. Compare Se Bir-
mingham & District Land Co.,
(1893), 1 Ch. 342.
89. Leaver v. Gorman, 73 N.
J. Eq. 129, 67 Atl. Ill; McNichol
V. Townsend, 73 N. J. Eq. 276, 67
Atl. 938; McNeil v. Gary, 40 App.
D. C. 397, 46 L. R. A. (N. S.) 1113;
Summers v. Beeler, 90 Md. 474, 48
L. R. A. 54, 78 Am. St. Rep. 446.
45 Atl. 19; Coughlin v. Barker,
46 Mo. App. 54.
90. Leader v. La Flamme, 11
Me. 242. 88 Atl. 859; Velie v.
Richardson, 126 Minn. 334, 148 N.
W. 286; Hano v. Bigelow, 155
Mass. 341, 29 N. E. 628; Bacon
V. Sandberg, 179 Mass. 396, 60 X.
E. 936; Sargent v. Leonardi. 223
Mass. 556, 112 N. E. 633; Allen
V. Detroit, 167 Mich. 464, 36 L.
R. A. (N. S.) 890, 133 N. W. 317;
Chopin V. Dougherty, 165 111. App.
426.
The exaction of different agree-
ments from the various pur-
chasers does not tend to show
a common plan. Webber v.
Landrigan, 215 Mass. 221, 102 N.
PJ. 460; Clark v. McGee, 159 111.
518, 42 N. E. 965; Helmsley v.
Marlborough Hotel Co., 62 N. J.
Eq. 164, 50 Atl. 14.
That in some conveyances
there are restrictions additional
to those which occur in all the
conveyances does not show the
non existence of a general plan.
Evans v. Foss, 194 Mass. 513, 9
L. R. A. (N. S.) 1039, 11 Ann.
Cas. 171, 80 N. E. 587; Allen v.
Barrett, 213 Mass. 36, Ann. Cas.
1913E, 820, 99 N. E. 575. Nor is
this shown by lack of exact uni-
formity in the restrictions in the
different conveyances. Hart v.
Ruter, 223 Mass. 207, 111 N. E.
1; Morrow v. Hasselman, 69 N.
J. Eq. 612, 61 Atl. 369; Coates
V. Cullingford, 147 App. Div. 39,
131 N. Y. S. 700; Hooper v. Lott-
man, — Tex. Civ. — , 171 S. W.
270.
91. Fete v. Foerstel, 159 Mo.
App. 75, 139 S. W. 820; Alderson
V. Cutting, 163 Cal. 503, 126 Pac.
157 {semble); Hano v. Bigelow,
<^ 400] Equitable Restrictions. 1451
but a contrary view has also been asserted.^^ A com-
mon plan cannot be shown, as against one who pur-
chased without knowledge of any restriction, by evi-
dence that after his purchase the neighboring lots were
sold by the common vendor subject to a particular
restriction.*^"'
That a building line appeared on a recorded ])lat
of property has been referred to as indicating that
there was a general plan in this regard, subject to
which each purchaser of a lot acquired title. ^^ On the
other hand the appearance of such a line on a plat
has been regarded as insufficient to show a general
plan.^°
Restrictions imposed in accordance with a general
plan, like other restrictions,*^*' are enforceable only as
against purchasers with notice thereof,*^' and a pur-
chaser with notice from a purchaser without notice
takes free therefrom.^* A purchaser is, it has been
decided, not charged with notice of a general plan by
the uniformity of construction of buildings on other
lots sold by the same vendor.-'^ A purchaser can ob-
viously not be charged with notice of a general plan,
or affected thereby, if his purchase was prior to the
establishment of such plan,^
155 Mass. 341, 29 N. E. 638 (sem- 319, 90 Atl. 73.
ble); McNeil v. Gary, 40 App. 93. Ante, § 398.
Dist. Col. 397, 46 L. R. A. (N. S.) 97. Roak v. Davis, 194 Mass.
1113; Wright v. Pfrimmer, 99 481, 80 N. E. 690; Hyman v.
Neb. 447, 156 N. W. 1060. Tash (N. J. Eq.), 71 Atl. 742.
92. MuUigan v. Jordan. 50 N. 98. McCuster v. Goode, 185
J. Eq. 363, 24 Atl. 543; Roberts Mass. 607. 71 N. E. 76.
V. Lombard, 78 Ore. 100, 152 Pac. 99. Bradley v. Walker, 138 N.
499. Y. 291, 33 N. E. 1079, overruling
93. Lambrecht v. Gramlich, 187 dictum in Tallmadge v. East
Mich. 251, 153 N. W. 834. River Bank, 26 N. Y. 105, 111;
94. Loomis v. Collins, 272 111. Casterton v. Plotkin, 188 Mich.
221, 111 N. E. 999. See Oliver £33, 154 N. W. 151.
V. Kalick, 223 Mass. 252, 111 N. 1. Casterton v. Plotkin, 188
E. 879. Mich. 333, 154 N. W. 151.
95. McCloskey v. Kirk, 243 Pa.
1452 Eeal Property. [§ 401
In England the doctrine of a general plan has
been applied in connection with leases of flats in an
apartment building, with the result that the lessee of
a flat, whose written and printed lease shows that the
whole building was used or intended to be used for
residential flats, and imposes certain regulations upon
the lessee in accordance with this intended use, is en-
titled to an injunction against the lessor, seeking to
utilize the balance of the building for other than resi-
dential purposes.^
§ 401. Defenses to enforcement. The right to
enforce a restrictive agreement may be lost by laches or
acquiescence,-^ especially when this results in the mak-
ing of expenditures by defendant.^ And if the promisee
or his successor in title, by his conduct, in any way
induces a violation of the agreement, he cannot ordi-
narily complain thereof.'^ That the agreement has but
a limited time to run has, in connection with other
circumstances,^ been regarded as a consideration ad-
verse to its enforcement.
2. Hudson v. Cripps (18D6), 1 143 Pa. 487, 22 Atl. 832, 24 Am.
Ch. 265; Alexander v. Mansions St. Rep. 567.
Proprietary, 16 Times Law Rep. 4. Bridgewater v. Ocean City
431; Gedge v. Bartlett, 17 Times Ass'n, 85 N. J. Eq. 379, 96 Atl.
Law Eep. 43; Jaegei v. Mansions, 905; Smith v. Spencer, 81 N. J.
Limited, 87 Law Times, 690. Eq. 389, 87 Atl. 158; Whitney v.
3. Leaver v. Gorman, 73 N. J. Union Railway Co., 11 Gray
Eq. 129, 67 Atl. Ill; Sayers v. (Mass.) 359, 367; Kelsey v. Dodd.
Collyer, 28 Ch. Div. 103. o2 L. J. Ch. 34.
A delay of ten weeks before 5. Stott v. Avery, 156 Mich,
consulting an attorney was re- 674, 121 N. W. 825; Union Trust
garded as not necessarily pre- "S: Realty Co. v. Best, 160 Cal. 263,
eluding relief, no prejudice re- ^16 Pac. 737. De Gama v.
suiting to defendant. Stewart v. r)'Aquila, — X. J. Ch. — , 101 Atl.
Finkelstone, 206 Mass. 28, 92 N. 1028.
E. 37. And see Woodbine Land 6. Loud v. Prendergast, 206
& Improvement Co. v. Riener, — Mass. 122, 92 N. E. 40; Page v.
N. J. Eq. — , 85 Atl. 1004; Star Murray, 46 N. J. Eq. 325, 19 Atl.
Brewery v. Primas, 163 111. 652, 11; McClure v. Leaycraft, 183 N.
45 N. E. 145; Orne v. Fridenburg, Y. 36, 5 Ann. Cas. 45, 75 N. E.
§ 401]
Equitable Restrictions.
1453
In the case of restrictions imposed in pursuance
of a general plan, that the originator of the plan, the
common grantor, acquiesces in, that is, fails to take
legal action to prevent, substantial infringements
of the plan by some of his grantees, has been regarded
as showing an abandonment by him of the plan, pre-
cluding him from subsequently enforcing the restriction
as against others.' And one to whom he conveys a
lot subject to such a common plan of restriction has
occasionally been regarded as precluded from enjoining
the violation of the restriction if he acquiesced in a
violation thereof by another which substantially af-
fected his property,^ though his failure to object to
a violation by the owner of one lot does not affect his
right to object to a violation by another, if the former
violation, by reason of the distance of the lot, or for
some other reason, did not affect the enjoyment of his
lot.^ In one or two states the acquiescence by one
961; Page v. Murray, 46 N. J.
Eq. 325, 19 Atl. 11.
7. Scharer v. Pantler. 127 Mo.
App. 433, 105 S. W. 668; Chelsea
Land & Improvement Co. v.
Adams, 71 N. J. Eq. 771, 66 AtL
180, 14 Ann. Cas. 758 ; Ocean City
Land Co. v. Weber, 83 N. J. 476.
91 Atl. 600; Roper v. Williams,
Turn. & E. 18. Peck v. Matthews,
L. R. 3 Eq. 515; Sobey v. Sains-
bury (1913), 2 Ch. 513.
But his acquiescence in viola-
tions of a like covenant in deed.s
of neighboring lots has been hel'l
not to prevent his enforcement
of the covenant, if these viola-
tions occurred before the covenant
was made. Sherrard v. Murphy,
193 Mich. 352, 159 N. W. 524.
8. Curtis V. Ruben, 244 111. 88,
91 N. E. 84; Ewertsen v. Gersten-
berg, 186 111. 344, 57 N. E. 1051,
21 L. R. A. 310; Helmsley v. Marl-
2 R. P.— 17
borough Hotel Co , 62 N. J. Eq.
164, 50 Atl. 14, 63 N. J. Eq. 804,
52 Atl. 1132; Meany v. Stork, 81
N. J. Eq. 210, 86 Atl. 398; Ocean
City Ass'n V. Chalfant, 65 N. J.
Eq. 156, 55 Atl. 801, 1 A. & E.
Ann. Cas. 601.
9. Alderson v. Cutting, 163 Cal.
503, 126 Pac. 157; Johnson v.
Robertson. 156 Iowa. 64, 135 N. W.
585; Barton v. Slifer, 72 N. J. Eq.
812. 66 Atl. 899. Bowen v. Smith,
76 X. .1. Eq. 456, 74 Atl. 675; Row-
land v. Miller, 139 X. Y. 93, 22
L. R, A. 22, 34 X. E. 765; McGuire
v. Caskey, 62 Ohio St. 419, 57 X.
E. 53; Payson v. Burnham, 141
Mass. 547. 6 X. E. 708; Sayles v.
Hall, 210 Mass. 281, 96 X. E. 712;
Schadt v. Brill, 173 Mich. 647.
139 X. W. 878. 45 L. R. A. (X. S.)
726; Stewart v. Stork, 181 Mich.
408, 148 N. W. 393 (srmble).
1454 Real Propekty. [§ 401
grantee in the violation of the common restriction by
another, even though such violation be substantial,
does not, it seems, preclude the former from sub-
sequently asserting the restriction as against a third
,i»rantee,^" wliile in England the view has been
adopted that, in order tliat acquiescence in other vio-
lations shall preclude equitable relief, such violations
must have been of a character which would prevent
the attainment of the purpose which it was sought to
attain by the execution of the agreement, that is, uni-
formity in the improvement of the various lots, or
the preservation of the general character of the
property considered as a whole. ^^
Acquiescence in a breach of a minor character
would not, in any state, it seems probable, constitute
grounds for denying relief against a breach of a
much more serious character,^- and likewise former
breaches and acquiescence therein have been regarded
as insufficient grounds for withholding relief when
they resulted from a mistaken construction of the
agreement.^^
One cannot obtain relief in equity against the
violation of a restrictive agreement entered into in
pursuance of a general plan if he himself is guilty of
10. Bacon v. Sandberg, 179 ing Ocean City Ass'n v. Chalfant,
Mass. 396. 60 N. E. 936. Codnian v. 65 N. J. Eq. 156, 1 Ann. Cas. 601,
Bradley, 179 Mass. 396, 60 N. E. 55 Atl 801.
936; Andre v. Donovan, 198 Mich. 12. See Richards v. Revitt, 7
256, 164 N. W. 543; O'Gallagher v. Ch. Div. 224; Meredith v. Wilson,
Lockhart, 263 111. 489, 105 N. E. 69 Law Times 336. Seawright v.
295, 52 L. R. A. (N. S.) 1044. And Blount, 139 Ga. 323, 77 S. E. 152;
see Misch v. Lehman. 178 Mich. Newberry v. Barkalow, 75 N. J.
225, 144 N. W. 556; Lattimer v. Eq. 128, 71 Atl. 752. And see Ball
Livermore, 72 N. Y. 174; Yeomans v. Milliken, 31 R. I. 36, 37 L. R.
V. Herrick, 178 Mo. App. 274, 165 A. (N. S.) 623. Ann. Cas. 1912B,
S. W. 1112. 30, 76 Atl. 789.
11. German v. Chapman, 7 Ch. 13. Right v. Winters, 68 N. J.
Div. 271; Knight v. Simmonds Eq. 252, 59 Atl. 770; Brigham v.
(1896), 2 Ch. 295. See note in 17 Mulock Co.. 74 N. J. Eq. 287, 70
Harv. Law Rev. at p. 138 criticiz- Atl. 185. And see Stewart v.
§ 401]
Equitable Kestkictions.
1455
a substantial breach of tlie same restriction.^'* But the
fact that the plaintiff has himself committed a minor
breach of the agreement will not disentitle him to an
injunction against a breach by another of considerable
magnitude. ^''^
While the original promisee may release the re-
stricted land from the burden of the restriction, so
long as he is the only one interested in the observance
thereof, he cannot so do to the detriment of one
claiming under him, who shares with him the right
to assert the restriction.^^
If, by reason of the course of action pursued by
the complainant, or of his predecessor in title, the
character of the neighborhood has been so altered as
to render impossible the attainment of the purjDose
which originally dictated the making of the restrictive
agreement, equity will not enforce the agreement.^''
Finkelstone, 206 Mass. 28, 28
L. R. A. (N. S.) 634, 138 Am. St.
Rep. 370, 92 N. E. 37.
14. Curtis V. Rubin, 244 III.
88, 91 X. E. 84; Kneip v. Schroe-
der, 255 111. 621, 99 N. E. 617;
Compton Hill Improvement Co.
V. Tower, 158 Mo. 282, 59 S. W.
239; Loud v. Pendergast, 206
Mass. 122, 92 N. E. 40; Olcott v.
Sheppard K. & Co., 96 N. Y. App.
Div. 281, 89 N. Y. Supp. 201. Sut-
clifEe V. Eisele, 62 X. J. Eq. 222,
50 Atl. Rep. 69; Smith v. Spencer,
81 N. J. Eq. 389, 87 Atl. 158.
15. Western v. MacDermott, L.
R. 2 Ch. 72; Meredith v. Wilson,
69 Law Times 336; Hooper v.
Bromet, 89 Law Times 37; Bacon
V. Sandberg, 179 Mass. 396, 60 X.
E. 936; Stewart v. Finkelstone,
206 Mass. 28, 28 L. R. A. (N. S.)
634, ]38 Am. St. Rep. 370, 92 N.
E. 37; Morrow v. Hasselman, 69
N. J. Eq. 612, 61 Atl. 369. Hy-
man v. Tash (N. J. Eq.), 71 Atl.
742; McGuire v. Caskey, 62 Ohio
St. 419, 57 N. E. 53; Adams v.
Howell, 58 Misc. 435, 108 N. Y.
Supp. 945; Tripp v. O'Brien, 57
111. App. 407.
16. Mackenzie v. Childers, 43
Ch. D. 265; Johnson v. Robertson,
156 Iowa, 64, 135 N. W. 585; Spahr
V. Cape, 143 Mo. App. 114, 122 S.
W. 379; Coudert v. Sayre, 46 X.
.7. Eq. 386. Bowen v. Smith, 76
X. J. Eq. 456, 74 Atl. 675; Duester
V. Alvin, 74 Ore. 544, 145 Pac.
660. And see Landell v. Hamil-
ton, 177 Pa. 23, 35 Atl. 242.
17. Bedford v. British Museum,
2 Myl. & K. 552; Star Brewery
V. Primas, 163 111. 652, 45 X. E.
145; Ewertsen v. Gerstenberg, 186
111. 344, 51 L. R. A. 310, 57 X.
E. 1051; Page v. Murray, 46 X. J.
Eq. 32.5, 19 Atl. 11. Compare Hen-
nen v. Deveny, 71 W. Va. 629,
L. R. A. 1917A, 524. 77 S. E. 142.
1456 Real Propeety. [§ 401
Thus in a leading English case it was decided that one
who had, for the protection of the outlook from his
mansion house, required one to whom he sold neigh-
boring property to enter into an agreement as to the
mode of improving the property sold, could not, after
having torn down his mansion house, obtain an in-
junction against a breach of the agreement.^^ And
it is apparently on this theory that a restrictive
agreement has occasionally been regarded as un-
enforcible after the promisee had sold neighboring
property free from any such restriction, it being con-
sidered that by the making of such sales he in effect
made the agreement useless for the purpose of pre-
serving the character of the neighborhood.^'* Such is
apparently the extent to which, in England, a change
in the character of the neighborhood, subsequent to
the making of the agreement, is regarded as operating
to prevent the enforcement of the agreement, that is,
the change in the neighborhood has this effect if, and
only if, it is a result of the course of action pursued
by the complainant or his predecessor in interest.^"
In this country, on the contrary, a cliange of condition
has not infrequently been regarded as precluding the
enforcement of the restrictive agreement even though
the change was not the result of the course of action
pursued by the complainant or his predecessor in title.
In one case, frequently referred to,-^ it was decided
18. Bedford v. British Museum, senger Rwy. Co., 85 Ky. 525, 4
2 Myl. & K. 552. S. W. 228; Jenks v. Pawlowski, 98
So it was held that, if the owne. Mich. 110, 22 L. R. A. 863, 39 Am.
of a lot had, by building a wall, St. Rep. 522, 56 X. W. 1105.
rendered a restriction upon the 20. Sayers v. Collyer, L. R. 28
height of buildings on the next Ch. D. 103; Osborne v. Bradley
lot partially valueless to his lot, (1903), 2 Ch. 446. Craig v. Green
he could not enforce the restric- (1899), 1 Ir. Ch. 258. But see
tion so as to prevent the con- dicta in Sobey v. Sainsbury (1913),
struction of buildings no higher 2 Ch. 513; German v. Chapman,
than the wall. Landell v. Haniil- 7 Ch. D. 279; Knight v. Simmonds
ton, 177 Pa. St. 23, 35 Atl. 242. (1896), 2 Ch. 297.
19. Duncan v. Central Pas- 21. Columbia College y. Thach-
§ 401] Equitable Restrictions. 1457
that a change of conditions which could not have been
foreseen at the time of the making of the agreement,
the construction of an elevated railway in front of
the restricted property, was a sufficient defense to the
enforcement of a restriction, imposed for the purpose
of fitting the property for high class residences; and
in a number of cases even an alteration in the char-
acter of the neighborhood which could have been fore-
seen, such as the encroachment of business upon a
residence neighborhood, has been regarded as justify-
ing the refusal of equitable relief,^^ especially when
the enforcement of the restriction would materially
injure the defendant without benefitting the complain-
ant.^^ Such a change in the character of the neighbor-
hood has however been decided not to be a defense to
the suit to enforce the restriction, if the restriction
continued to be of value to the property sought to be
benefitted.^^ It would seem probable that the courts,
in regarding an alteration in the neighborhood, whicli
might have been foreseen, as ground for refusing
er, 87 N. Y. 311, 41 Am. Rep. 365. Jackson v. Stevenson, 156 Mass. ^
22. Los Angeles Terminal 496, 31 N. E. 691, 32 Am. St. Rep.
Land Co. v. Muir, 136 Cal. 36, 68 476; Rowland v. Miller, 139 N. Y.
Pac. 308; Kneip v. Schroeder, 255 93, 22 L. R. A. 182, 34 N. E. 765;
III., 621, 29 Ann. Cas. 426, 99 N. E. McClure v. Leaycraft, 183 N. Y.
G17; McArthur v. Hood Rubber 36, 5 Ann. Cas. 45, 75 N. E. 961;
Co., 221 Mass. 372, 109 N. E. 162; Batchelor v. Hinkle, 210 N. Y.
Amerman v. Deane, 132 N. Y. 243, 104 N. E. 629; Page v. Murray,
355, 28 Am. St. Rep. 584, 30 N. 46 N. J. Eq. 325, 19 Atl. 11.
E. 741; McClure v. Leaycraft, 183 24. Codman v. Bradley, 201
N. Y. 36, 75 N. E. 961, 5 Ann. Cas. Mass. 361, 87 N. E. 591; Zipp v.
45. Misch V. Lehman, 178 Mich. Barker, 40 App. Div. 1, 57 N. Y.
225, 144 N. W. 556. But not the Supp. 569, 166 N. Y. 621. as ex-
mere anticipation of such a plained in Batchelor v. Hinkle,
change. Evans v. Foss, 194 .Mass. 210 N. Y. 243, 104 N. E. 629;
513, 80 N. E. 587, 9 L. R. A. N. S. Brown v. Huber, 80 Ohio St. 183*,
1039, 11 A. & E. Ann. Cas. 171; 88 N E. 322; Landell v. Hamilton,
Spahr V. Cape, 143 Mo. App. 114, 175 Pa. 327, 34 L. R. A. 227, 34
122 S. W. 379. Atl. 663. See Witherspoon v.
23. Star Brewery Co. v. Pri- Hurst, 88 S. C. 561, 71 S. E. 232.
mas, 163 111. 652, 45 N. E. 145;
1458 Real Peopebty. [§ 401
equitable relief, have been moved by the consideration
that otherwise such restrictions might operate to
hamper municipal development.^^
25. See 14 Columbia Law Rev. is suggested that the view refer-
at p. 438, and the full discussion red to may be supported on the
of the various New York decisions theory of a presumed intention
in 6 Bench & Bar 56, 96, by to that effect in the creation of
Adolph Sieker, Esq. In a note the restriction,
in 31 Harv. Law Rev. at p. 877, it
CHAPTER XVI.
RENT.
§ 402. The nature oi rent.
40S. What may be reserved as rent.
404. Classes of renis.
405. Payments which are not rent.
406. The reservation of rent.
407. Transfer of rights and liabilities.
408. Death of person entitled.
409. Time at which rent is due.
410. Apportionment as to time.
411. Amount of the rent.
412. Apportionment as to amount.
413. Extinction or suspension of rent.
414. Actions for rent.
415. Distress for rent.
416. Lien for rent.
§ 402. The nature of rent. Rent may be defined,
in a general way, as a tribute or return of a certain
amount, which is regarded as issuing out of the land,
as part of its actual or possible profits, and is payable
by one having an estate in the land, as compensation
for his use possession and enjoyment of the land, or
occasionally, as a charge on the land. The word "rent"
is derived from "render," and the name thus em-
phasizes the distinction betw^een rent, which is actually
rendered or paid by the tenant, and a j^rofit a prendre,
which is taken by the person entith^d thereto, without
the active intervention of the tenant.^ The word is
used in the law in at least four distinct senses, which
it is desirable clearly to distinguish. It is in the first
place used in a general sense, to describe any and
every tribute which may be payable by one on account
of an estate in the land, as when we say that rent
1. Co. Litt. 142a; Leake, Prop, in Land, 373.
1460 Real Peopeety. [§ 403
is usually payable in money, or rent is collectible by
distress, or rent must be certain in amount, and, thus
used, it applies either to one payment of tribute to be
made, one "installment of rent," or to a succession
of such payments. The word, when used in this sense,
is, ordinarily at least, not accompanied by any article.
In the second place, the word is used specifically, to
describe a particular payment of tribute^ to be made by
a tenant of particular land, or a succession of such
payments. For instance, we may say that the rent due
by a tenant of certain land is over due, meaning thereby
that one installment of the rent is overdue or that
a number of installments are overdue. And so we
speak of an action having been brought for "the rent,"
meaning thereby an action for one installment or several
installments. The word rent when used in this sense
is ordinarily preceded by the definite article. In the
third place, the word is used specifically to describe
the right which a particular person or persons may have
to a succession of payments by the tenant or tenants
of a particular piece of land, as when we refer to a
man as having a rent or a ground rent, or say that
the rent upon (issuing from) a certain piece of land
belongs to a named individual. The word "rent,"
when used in this sense, is used with either the definite
or indefinite article. In the fourth place, the word is
used to designate sums paid as rent, the proceeds, that
is, of the payment of one or more of the periodic in-
stallments, as when one speaks of applying the rent
in a certain manner, meaning thereby what is re-
ceived on account of rent. The word is frequently used
in this sense in the phrase "rents and profits." Allien
so used, the word is ordinarily preceded by the definite
article.
§ 403. What may be reserved as rent. It is said
by Coke that rent is reserved out of the profits of the
land,2 and by Blackstone that rent is a profit issuing
2. Co. Litt. 141b.
§ 403] Eent. 1461
out of tlie laiid.-^ The use of the term ''profit" in this
connection has reference to the connnon law theory of
rent, that it is part of the actual or possible profits of
the land, a theory which was closely connected with
another theory, that rent, like any other feudal service,
was something issuing from and owed by the land
itself.* The chief consequences of the theory that rent
is payable out of the profits of the land are that if
the tenant is deprived of the opportunity to take the
profits, as by eviction, the landlord's right to rent
ceases or is suspended,^ and that the rent is not re-
garded as an actual debt until the profits have been
received by the tenant, in the absence of an express
provision to the contrary.^
The statement that rent is a profit, or a part of
the profits, issuing out of the land,. does not mean that
part of the actual products of the soil must he delivered
as rent. Tient is, in fact, usually reser^^ed or made
payable in money, but the tribute to be rendered may,
by the terms of the reservation, take almost any form,
as, for instance, the delivery of a horse," or of a certain
amount of grain or cotton,* the furnishing of board or
3. 2 Blackst. Comm. 41. Houghton, 1 Lowell, 554, Fed.
4. See 2 Pollock & Maitland, Cas. No. 6,725; Wilson v. Penn-
Hist. Eng. Law, 126, 129. sylvania Trust Co., 114 Fed. 742.
5. See Clun's Case, 10 Co. 126b But that rent to become due con-
and post, § 413, notes 93 et seq. stitutes a present debt, see Ro-
6. Litt., § 513; Co. Litt. 292b; well v .Felker, 54 Vt. 526. And
Bordman v. Osborn, 23 Pick. gge also Brown v. Cairns, 107
(Mass.) 295; Thorp v. Preston, ^^.^^,3^ 277, 77 N. W. 478.
42 Mich. 511, 4 N. W. 227; Ord- ^ Co. Litt 142a
way V. Remington, 12 R. I. .nO, ^_ ^^[ ^itt.' 142a; Townsend v.
Isf!nborger, 45 Iowa, 670; Boyd
V. McCombs, 4 Pa. St. 146; Mc-
Dougal V. Sanders, 75 Ga. 140.
34 Am. Rep. 646; Haffey v. Miller
6 Gratt. (Va.) 454.
Consequently a claim for rent
subsequently to accrue cannot bo
r^..„„.r,f^,i oc „ ,i,.;.v, „„..;v,..f Frequcntly, in this country, rent
presented as a claim against a 1 ."
bankrupt's estate. Atkins v. consists of a named portion of
Wilcox, 105 Fed. 595; Ex parte the crop raised. See (oUr, § 265.
1462 Real Peopeety. [§ 404
support,** or the performance of manual services on or
off the land.^«
It is said hy Coke that "a, man upon his feoifment
or conveyance cannot reserve to him parcel of the
annual profits themselves, as to reserve the vesture or
herbage of the land or the like. For a reservation
ought not to be a reservation of the profits themselves,
since these are granted, but of a new return out of the
profits ;"^^ and his statement in this regard has been
followed by other English writers.^- A like view has
been strongly asserted in a New Hampshire decision.^^
And so it has been said that when the grantor or lessor
undertakes to reserve as rent a share of the ore which
may be removed from the land, this constitutes prop-
erly, not a reservation of rent, but an exception of a
part of the property gTanted or leased.^^ But what-
ever the rule may be in this regard in England, it is
not open to question, in most parts of this country,
that a reservation as rent of part of the crops to be
produced on the land is perfectly valid.
§ 404. Classes of rents. The classification of rents
at common law was based primarily upon the dis-
tinction between a rent which was reserved upon the
conveyance or lease of land, as a compensation to the
9. Baker v. Adams, 5 Cush. Ga. App. 46, 60 S. E. 800.
(Mass.) 99; Shouse v. Krusor, 24 11. Co. Litt. 142a.
Mo. App. 279; In re Williams' 12. Sheppard's Touchstone, SO:
Estate, 1 N. Y. Misc. 35, 22 N. Y. 3 Cruise's Dig. tit. 28, c. 1, § 3;
Supp. 906. Comyn, Landlord & Ten., 95.
In Munroe v. Syracuse, Lake 13. Moulton v. Robinson, 27 X.
Shore & Northern R. Co., 200 N. H. .550.
Y. 224, a stipulation for the is- 14. See Gowan v. Christie, L.
sue of an annual railroad pass R. 2 H. L. Sc. 273, 284, per Lord
was regarded as in the nature Cairns; Coltness Iron Co. v.
cf one for rent. Black, 6 App. Cas. 315, 335, per
10. Co. Litt. 96a, 96b; Doe d. Lord Blackburn; Greville-Nugent
Edney v. Benham, 7 Q. B. 976; v. Mackenzie (1900), App. Cas.
Van Renssalaer v. Jewett, 2 N. h3, per Lord Halsbury; Fairchild
Y. 141; Price v. Thompson. 4 v. FairchUd (Pa.) 9 Atl. 255.
§ 404] Ebnt. 1463
grantor or lessor, and a rent whicli was granted by the
owner of land to another person, without any transfer
of the land, being merely a right to a periodical pay-
ment secured on the land.
In the former case, before the Statute of Quia
Emptores, since the conveyance of the land created a
relation of tenure, even in the case of the conveyance of
an estate in fee simple, the payment of the rent re-
served was regarded as one of the services incident to
that relation. ^^ Accordingly, 'a rent reserved upon the
making of a feoffment, whereby the relation of tenure
was created, was known as a ''rent service."^*'
Upon a failure to perform this feudal service of
paying rent, the lord was, as in the case of default
in any other of the feudal services, entitled to enforce
its performance by the seizure of chattels upon the
land, this being known as the remedy of "distress."^"
This right of distress was a distinctive feature of the
particular class of rents known as "rents service."
The right of distress was an incident of the right
of lordship, the ''seignory," or, when the tenure was
for an estate less than a fee simple, of the reversion
remaining in the lord, and consequently, if the lord
granted the seignory or reversion while retaining the
rent, or granted the rent while retaining the seignory
or reversion, the rent could no longer be enforced by
distress, and was accordingly thereafter termed a "rent
seek" or "dry rent."*^
In the case of a rent created by the grant of a
rent by the owner of land, of which he retained the
ownership, no relation of tenure was created, and con-
sequently there was no remedy by way of distress for
the enforcement of the obligation, A rent so created
was accordingly another form of "rent seek." A
15. Ante, § 6. § 415.
16. Litt., § 122; Gilbert, 18. Litt. §§ 218, 225-228; Deu
Rents, 9. d. Farley v. Craig, 15 N. J. L.
17. Litt., §§ 213, 216. See /"«<, If 2.
1464 Real Property. [§ 404
right of distress might, however, be expressly given in
the grant, in which case the rent was known as a ''rent
charge."^'' Rents charge, thus created hy a grant of a
rent by the owner of land, he retaining the entire
interest in the land, are quite common in England, they
being sometimes granted by the purchaser of land as
part of the consideration therefor, and also being util-
ized as a mode of providing for younger sons and
others in family settlements. In this country, however,
they are very infrequent. They are in effect merely
annuities secured on land, and in some cases equity will
enforce their payment by a sale of the land, as in the
case of a mortgage or other lien.
After the Statute Quia Emptores, a conveyance of
land in fee simple no longer had the effect of creating
a relation of tenure between the feoffor and feoffee, but
the feoffee merely became substituted in place of the
feoffer. Consequently, a reservation of rent on such a
conveyance thereafter made could not be regarded as
a rent service, and was a rent seek, without the right
of distress, unless this right was expressly given, so
as to render it a rent charge.^*^' Since, however, this
statute did not apply in the case of a conveyance of an
estate less than a fee, a rent service is, even at the
present day, created by the reservation of rent upon the
conveyance or lease by a tenant in fee of a less estate,
either an estate tail, an estate for life, or one for years ;
and likewise when a tenant of an estate less than a fee
conveys or leases for a period less than his own estate,
so as to leave a reversion in him. Consequently, the
19. Litt. §§ 218, 219; Co. Litt. In Pennsylvania, a rent created
150b; 2 Pollock & Maitland, Hist. by a reservation upon the con-
Eng. Law, 129. veyance of land in fee simple
20. Litt. §§ 215-217; Co. Litt. is a rent service, but this is
143b, Hargrave's note; Bradbury owing to the fact that the statute
V. Wright, 2 Doug. 624; Van Quia Emptores is not in force
Rensselaer v. Chadwick, 22 N. Y. there. Ingersoll v. Sargeant, 1
32. Whart. (Pa.) 336.
§ 405] Eent. 14G5
rent reserved on the ordinary lease for years is i>rox>
erly a rent service.-^
It is stated by Coke tliat rent service is so called
''because it hath some corporal service incident to it,
which at least is fealty,"-^ and upon the strength of this
statement, as transmitted by Blackstone,-^ it has been
asserted, in two states,^^ that in view of the fact that
fealty is not there recognized, rent service is non ex-
istent. In the time of Coke, since rent service was
essentially tenurial in character, and fealty was an in-
cident of tenure,-^ it followed that rent service was
accompanied by fealty, but the reason that rent service
was so called appears really to have been that it was in
itself a service. The expression rent service was in use
nearly three hundred years before Coke,^^ and the
writers of that earlier time, as well as the judges, speak
of rent as one class of service.^'
§ 405. Payments which are not properly rent. Rent
can, by the common law authorities, be reserved only
out of land or things constituting in law a part of the
land, to which the landlord may have recourse to dis-
train, and camiot be reserved out of incorjjoreal things.^''
Whether the statement that rent must be reserved out
of things to which the landlord may have recourse to
21. Litt. §§ 214, 215; Ehrman Maitland, Hist. Eiig. Law, 128
V. Mayer, 57 Md. 621; Ingersoll note.
V. Sergeant, 1 Whart. (Pa.) 337; 27. See Bracton, bk. 2, c. 16,
Den d. Farley v. Craig. 15 N. J. fol. 35a; Britton (Nichol's Ed.)
L. 192. tk. 1, c. 28, § 16, bk. 2, c. 10, § 1;
22. Co. Litt. 142a. Y. B. 33-35 Edw. 1, p. 208; Y. B.
23. 2 Blackst. Comm. 42. 1 & 2, Edw. 2 (Selden Soc.) p.
24. Herr v. Join, son, 11 Colo. 119, pi. 36; Y. B. 2 & 3, Edw. 2.
393, 18 Pac. 342; Penny v. Little, p. 140, pi. 58.
4 111. 30L £8. Co. Litt. 47, 142a; Gilbert.
25. Litt. §§ 91, 132; Co. Litt. Rents, 120; 2 Blackst. Comm. 41;
ft7b, 93a. Buszard v. Cupel, 8 Barn. & Cr.
26. See Y. B. 33-35 Edw. 1, p. 141.
£52, referred to in 2 Pollock &
146G Real Property. [-§> 4i)5
distrain is to be regarded as a statement of the reason
for the rule precluding the reservation of rent out of
incorporeal things, or a statement of the result of the
rule, does not clearly appear. In favor of the former
view reference may be made to statements to be found
that the king may resei-ve rent upon a lease of in-
corporeal things for the reason that, by virtue of his
jDrerogative, he can distrain on all lands of his lessee,^''
and that rent may be reserved on a demise of the
vesture or herbage of land for the reason that the
lessor may distrain the cattle on the land."" If the
common law rule precluding the reservation of rent
upon a lease of an incorporeal thing is to be regarded
as based on the inability to distrain thereon, the ques-
tion might arise whether the rule remains the same in
any jurisdiction in which, as is the case in most of the
states, the right of distress no longer exists.^ ^ A
differentiation originating in the existence or non exis-
tence of a right of distress might well be ignored after
the right of distress has been entirely abolished. But
whether or not the sum named upon a lease of an
incorporeal thing, to be paid by the lessee, is to be
regarded as rent, it is recoverable by the lessor in an
action of contract against the lessee.^^
Rent cannot be reserved out of chattels, and con-
sequently sums to be paid by a bailee of chattels, as
compensation for their use and enjoyment, are not
properly referred to as rent.^^ In the case of a lease of
29. Co. Litt. 47a, Hargrave's 32. Co. Litt. 47a; Dean & Chap-
note, ler of Windsor v. Gover. 2 Wms.
30. Co. Litt. 47a. Sauud. 302; Raby v. Reeves, 112
31. In Raby v: Reeves, 112 N. N. C. 688, 16 S. E. 760.
C. 688, 16 S. E. 760, sums so re- 33. Spencer's Case, 5 Coke 17a;
served were regarded as not con- Sutliff v. Atwood, 15 Ohio St.
&tituting rent, while a contrary 186. In Mickle v. Miles, 31 Pa.
view was adopted, without dis- iSt. 20, and Vetter's Appeal, 99
cussion, in Jordan v. Indianapolis Pa. St. 52, it was said that rent
Water Co., 159 Ind. 337, 64 N. E. may issue, not only from lands
680. See 1 Tiffany, Landlord & and tenements, but also from the
Ten. p. 1119. personal property necessary for
§ 405] Kent. 1467
land together with chattels, as for instance of a farm
with the stock thereon, or of a house with the furni-
ture therein, the whole rent has been regarded as issu-
ing from the land alone, so as to authorize a distress
on the land for the entire amount. ^^ So, upon an
eviction from the land, the liability for rent has been
regarded as entirely suspended, without reference to
the fact that the lessee continues to enjoy the use of
the chattels included in the lease.''' And a declaration
in an action for the rent was not regarded as defective
because it averred a demise of land alone, although
chattels also were included.''*^ On the same principle,
that the rent issues entirely out of the land, it has
been decided in one state that the executor of the
lessor, though entitled to the chattels at the end of the
lease, has no right to any portion of the rent reserved
on a lease of land and chattels."'' There are other
cases, however, which refuse or fail to apply this theory
when calculated to produce unjust results. For in-
stance, it has been decided that the grantee of' the
reversion in the land, without any interest in the chat-
tels, is not entitled to the whole rent as against the
grantor retaining the chattels,''^ and there are two cases
their enjoyment, but by this the 36. Farewell v. Dickenson, 6
court evidently meant merely that Barn. & C. 251.
rent does not cease to be rent 37. Armstrong v. Cummings.
because reserved upon a lease 58 How. Pr. 332; Fay v. Holloran,
of land which also includes chat- 35 Barb. (N. Y.) 295.
tels. 38. Buffum v. Deane, 4 Gray
34. Newman v. Anderton, 2 (Mass.) 385. In Newton v. Speare
Bos. & P. (N. R.) 224; Selby v. Laundering Co., 19 R. I. 546, 37
Greaves, L. R. 3 C. P. 594; Lath- Atl. 11, it is decided that the
rop V. Clewis, 63 Ga. 282: Stein transferee of the land in such
v. Stely, — (Tex. Civ. App.) — , case is entitled only to the value
32 S. W. 782. of the use anrj occupation of the
35. Gilbert, Rents, 175; Y. B. land.
12 Hen. 8, 11, pi. 5. Emott v. The decision in Jones v. Smith,
Cole, Cro. Eliz. 255; Read v. 14 Ohio, 606, that when chattels
Lawnse, 2 Dyer 212 b; Contra are included in the lease, the
Bro. Abr. Apportionment, pi. 24. covenant to pay rent does not
1468 Real Propeety. [§ 405
in which it is decided that if the chattels leased with
the land are lost or destroyed, the rent should be ap-
portioned, that is, diminished proportionally.^^ These
cases, however, appear hardly to accord with the ordi-
nary rule, hereafter stated,^'^ that no apportionment
of rent occurs on the destruction of the buildings on the
land leased, and in one of these cases the decision is
apparently regarded as involving a repudiation of that
rule.
All payments which a lessee agrees with the lessor
to make, are not necessarily rent. For instance, sums
which the lessee agrees to pay to the lessor on account
of good will,*^ of improvements made by the latter,*^
or of existing indebtedness,^^ are not rent, the pay-
ments not being made by way of compensation for the
use and enjoyment of the property. And this appears
to be so regardless of w^hether the parties refer to
such payments as rent, since what constitutes rent is a
(iuestion of law and not of intention. Likewise, in
spite of several decisions to the effect that an agree-
ment by the lessee with the lessor to pay the taxes is
in effect one to pay rent,'*^ the proper view is, it is sub-
mitted, that sums thus to be paid to a third person, not
a representative of the lessor, do not constitute rent.^^
pass upon a transfer of the rent So. 546; Miners' Bank of Potts-
alone appears questionable. ville v. Heilner, 47 Pa. 452.
39. Newton v. Wilson, 3 Hen. 44. Gedge v. Shoenberger, 83
& M. (Va.) 470; Whitaker v. Haw- Ky. 91; Roberts v. Sims, 64 Miss,
ley, 25 Kan. 674, 37 Am. Rep. 277. 597, 2 So. 72; Neagle v. Kelly, 146
The same view is favored by Le 111. 460, 34 N. E. 947; Knight v.
Taverner's Case, 1 Dyer 56a. Orchard, 92 Mo. App. 466; Mc-
40. Post, § 413, notes 81-85. Cann v. Evans, 185 Fed. 93, 107
41. Smith V. Mapleback, 1 C. C. A. 313.
Term. Rep. 441. 45. That a stipulation to pay
42. Hoby v. Roebuck, 7 Taunt. taxes is not a stipulation to pay
157; Donellan v. Read, 3 Barn. & rent, see Hodgkins v. Price, 137
Adol. 899. Mass. 13; Evans v .Lincoln County,
43. First Nat. Bank v. Flynn, 204 Pa. 448, 54 Atl. 321 ("water
117 Iowa, 493, 91 N. W. 784. Pax- rents") ; People v. Swayze, 15 Abb.
ton V. Kennedy, 70 :Miss. 865, 12 Pr. (N. Y.) 432.
§§ 406, 407] Eent. 1469
It has been well said in this connection that ''rent has
a fixed legal meaning, and to consider all payments
which, by the terms of the lease, a tenant is bonnd to
make, as coming within its definition, would lead to a
confusion of ideas without necessity or advantage."^"
§ 406. The reservation of rent. In technical lan-
guage, the rent which is provided for by the lease is
"reserved," as distinguished from a part of the land,
which may be "excepted."^' Xo particular language
is necessary, it being sufficient if it indicates an inten-
tion that the rent named shall be paid or rendered to
the lessor.^^
It is a well recognized rule of the common law
that rent must be reserved in favor of the lessor or
grantor himself, and not in favor of a stranger, since
it is paid by way of retribution for the land and should
consequently go to him from whom the land passes.^^
In several states, however, the courts have referred to
money which the lessee agrees to pay to a stranger as
rent, without apparently any suspicion that this is not
in accordance with the common law.""'
As a rent may be reserved on a conveyance in fee,
so it may be reserved upon the transfer of the whole
interest of a tenant for life or for 3^ears, a reversion in
the transferor being unnecessary.^'^
§ 407. Transfer of rights and liabilities. V]iou
the conveyance of a reversion to which rent is incident,
46. Garner v. Hannah, 13 N. Rolle, Abr. 447; Gilbert, Rents,
Y. Super, Ct. (6 Duer) 262, per 54; Ryerson v. Quackenbush, 26
Slosson, J. X. J. L. 232.
47. Co. Litt. 47a; Doe d. Doug- .50. Toan v. Pline, 60 Mich. 385,
las V. Lock, 2 Ad. & El. 705, 743. 27 X. W. 557; Brett v. Sayle, 60
See post, § 436. Miss. 192; Schneider v. White, 12
48. Harrington v. Wise, Cro. Ore. 503, 8 Pac. 652; Broddie v.
Eliz. 486; Attoe v. Hemmings, 2 .Johnson, 1 Sneed (Tenn.) 464.
Bulstr, 281; Doe d. Rains v. Knel- And cases cited <'>itr, this section,
ler, 4 Car. & P. 3. note 44.
49. Litt. § 346; Co. Litt. 143b. 5]. Newcomb v. Harvey, Carth.
2 R. P.— 18
UTO Real Peoperty. [§ 407
the rent also j)asses unless there is a stipulation to the
contrary;'^- but the reversion may be conveyed without
the rent, or the rent may be assigned without the
reversion, the rent and the reversion being thereby
separated.^ ^
The right to rent which has already become due
does not pass upon a transfer of the reversion unless
there is an express provision that it shall pass.^^ An
assignment of rent already due is an assignment of a
mere chose in action, while an assignment of the rent,
that is, of the right to the instalments as they come
due in the future, is properly not an assignment of a
chose in action, but is a transfer of an interest in
land.^^'' Were rent a chose in action, and not an in-
terest in land, it would not have been transferable at
common law.
The liability for rent reserved on a lease for years
passes to an assignee of the leasehold by reason of the
''privity of estate" existing between him and the owner
of the reversion, and a transferee of the reversion has
also, on the same theory, a right to recover the rent.
This question of the rights and liabilities of the* trans-
161; Williams v. Hayward, 1 El. 126; Gates v. Max, 125 N. C. 139,
& El. 1040; McMurphy v. Minot, 34 S. E. 266; Co. Litt. 143a, 151
4 N. iH. 251. b; 1 Tiffany, Landlord & Ten. §
52. Walker's Case, 3 Coke 22; 180c.
Butt V. Ellett, 19 Wall. (U. S.) 54. Flight v. Bentley, 7 Sim.
544, 22 L. Ed. 183; Steed v. Hin- 149; Thornton v. Strauss, 79 Ala.
son, 76 Ala. 298; Dixon V. Niccolls, 164; Damren v. American Light
39 111. 372, 89 Am. Dec. 312; Out- & Power Co., 91 Me. 334, 40 Atl.
toun T. Dulin, 72 Md. 536, 20 Atl. 63; Wise v. PfafE, 98 Md. 576. 56
134; Patten v. Deshon, 1 Gray Atl. 815; Burden v. Thayer, 3
(Mass.) 325. Mete. (Mass.) 76, 37 Am. Dec.
53. Crosby v. Loop, 13 111. 625; 117; Farmers' & Mechanics' Bank
Watson Y. Hunkins, 13 Iowa, 547; v. Ege, 9 Watts (Pa.) 436, 36 Am.
Damren v. American Light & Dec. 130; Dobbs v. Atlas Elevator
Power Co., 91 Me. 334; Beal v. Co., 25 S. Dak. 177, 126 N. W. 250;
Boston Car Spring Co., 125 Mass. Kneeland Investment Co. v. Ald-
157, 28 Am. Rep. 216; Brownson rich, 63 Wash. 609, 116 Pac. 264.
V. Roy, 133 Mich. 617. 95 N. W. 54a. See 1 Tiffany, Landlord &
710; Moffatt v. Smith, 4 N. Y. Ten. § 180c.
§ 407]
Kent.
1471
ferees by reason of their privity of estate will be more
conveniently considered in connection with the subject
of the common-law action of "debt" as a remedy for
nonpayment of rent.^^
Covenants to pay rent. An instrument of
lease usually contains a covenant on the part of the
lessee to pay rent. Both the benefit and the burden of
a covenant to i)ay rent, upon a demise leaving a rever-
sion in the lessor, run with the land,''" and consequently
an action thereon may be brought by the transferee of
the reversion,-^" and against an assignee of the lessee.^ ^
The liabilit}^ of the original lessee upon his cove-
nant to pay rent, being of a purely contractual nature,
is not affected by his assignment of the leasehold, even
though the assignment is assented to by the landlord.^^
55. i'ost, § 414, notes 18-29.
56. See I'ntr, § 56.
57. Thursby v. Plant, 1 Saund.
240, 1 Lev. 259; Midgleys v. Love-
lace, 12 Mod. 45; Baldwin v. Wal-
ker, 21 Conn. 168; Webster v.
Nichols, 104 111. 160; Outtoun v.
Dulin, 72 Md. 536; Main v.
Feathers, 21 Barb. (N. Y.) 646;
Maden v. Woodman, 205 Mass. 4,
91 N. E. 206.
58. Palmer v. Edwards, 1 Doug.
187, note; Steward v. Wolveridge,
9 Bing. 60; Salisbury v. Shirley,
66 Cal. 225, 5 Pac. 104; Webster
V. Nichols, 104 111. 160; Carley v.
Lewis, 24 Ind. 73; Donelson v.
Polk, 64 Md. 504, 2 Atl. 824; Lee
v. Payne, 4 Mich. 106, 119;
Edwards v. Spalding, 20 Mont.
54, 49 Pac. 443; Hogg v. Reynolds,
61 Neb. 758, 87 Am. St. Rep. 522,
i^ iijl W. 479; Stewart v. Long
Tsiand R. Co., 102 N. Y. 601, 8
N. E. 200, 55 Am. Rep. 844; Tyler
Commercial College v. Stapleton,
33 Okla. 305, 125 Pac. 443; Moline
V. Portland Brewing Co., 73 Ore.
532, 144 Pac. 572; Hannen v.
Ewalt. 18 Pa. 9; Bowdre v. Hamp-
ton, 6 Rich. Law (S. C.) 208;
Pingry V Watkins, 17 Vt. 379.
59. Thursby v. Plant, 1 Saund.
237, 1 Lev. 259; Mills v. Auriol,
1 H. Bl. 433; Randall v. Rigby,
4 Mees. & W. 134; Evans v. Mc-
Clure. 108 Ark. 531, 158 S. W.
487; Bonetti v. Treat, 91 Cal. 223.
27 Pac. 612, 14 L. R. A. 151:
Samuels v. Ottinger, 169 Cal. 209,
Ann. Cas. 1918E, 830, 146 Pac.
638; Grommes v. St. Paul Trust
Co., 147 111. 634, 37 Am. St. Rep.
248, 35 N. E. 820; .Johnstone v.
Stone, 215 Mass. 219, 102 N. E.
366; Latta v. Weiss, 131 Mo. 230,
32 S. W. 1005; Creveling v. De
Hart, 54 N. J. Law, 338, 23 Atl.
611; Taylor v. De Bus, 31 Ohio
St. 468; Pittsburg Consol. Coal
Co. V. Greenlee, 164 Pa. 549, 30
Atl. 589; Almy v. Greene, 13 R.
1472
Real Property.
[§ m
Occasional statements that, in the particular case, the
lessor's acquiescence in the assignment, or failure to
assert any claim for rent as against the lessee, had the
effect of relieving him from liability,'^'^" can be sup-
ported only on the theory that such action on the part
of the lessor constituted, under the circumstances of
the case, a new lease to the assignee, thus causing a
surrender by operation of law.^'''' And the same may
be said of occasional statements, ^^"^ that the acceptance
of rent by the landlord from the assignee relieves the
lessee from liability.'*''^ Such acceptance of rent can
have this effect only if it can be regarded as evidencing
a new lease by the landlord to such assignee.
An assignee of the leasehold is in a position differ-
ent from that of the lessee, in that he can relieve him-
self from further liability for rent by making an as-
signment to another.^^'^
I. 350, 43 Am. Rep. 32; Granite
Building Corp. v. Rubin, 40 R. I.
208, L. R. A. 1917D, 100 Atl. 310;
Kanawha-Gauley Coal & Colve Co.
V. Sharp, 73 W. Va. 427, 52 L. R.
A. (N. S.) 968, Ann. Cas. 1916E.
786, 80 S. E. 781.
59a. Fry v. Partridge, 73 111.
51; Colton v. Garham, 72 Iowa,
324, 33 N. W. 76; Brayton v. Boom-
er, 131 Iowa, 28, 107 N. W. 1099:
Kinsey v. Minnick, 43 Md. 112;
Patton V. Deshon. 1 Gray (Mass.)
325; Hutclieson v. Jones, 79 Mo.
496; Jamison v. Reilly, 92 Wash.
538, 59 Pac. 699.
59b. Post, § 431, note 89.
59c. Fry v. Partridge, 73 111.
51; Kinsey v. Minnick, 43 Md.
112; "Hutcheson v. Jones, 79 Mo.
496. Jamison v. Reilly, 92 Wash.
538, 159 Pac. 699 {semble).
59d. That acceptance of rent
from the assignee does not have
that effect, see Copeland v. Watts.
1 Starkie 95; Beall v. White, 94
U. S. 382, 24 L. Ed. 173; Schehr
V. Berkey, 166 Cal. 157, 135 Pac.
41; Grommes v. St. Paul Trust
Co., 147 111. 634, 7 Am. St. Rep.
248, 35 N. E. 820; Powell v. Jones,
50 Ind. App. 493, 98 N. E. 646;
Harris v. Heackman, 62 Iowa,
411; Johnson v. Stone, 215 Mass.
219, 102 N. E. 366; Hunt v. Gard-
ner, 39 N. J. Law 530; Decker
V Hartshorn, 60 X. J. L. 548, 38
Atl. 678; McFarland v. May, —
Okla. — , 162 Pac. 753; Hooks v.
Bailey, 5 Ga. App. 211, 62 S. E.
1054; Kanawha-Gauley Coal &
Coke Co. V Sharp, 73 W. Va. 427,
52 L. R. A. (N. S.) 968, Ann. Cas.
1916E, 786, 80 S. E. 781. And
cases cited i^ost, 8 431, note 94.
60. Paul V. Nurse, 8 Barn. &
Cres. 486. Johnson v. Sherman,
15 Cal. 287, 76 Am. Dec. 481;
Consolidated Coal Co. v. Peers,
166 111. 361, 38 L R .A. 624, 46
§ 407] Eent. 1473
It has been decided in this country that, even npon
the assignment of rent, reserved on a lease for years,
apart from the reversion, the benefit of the lessee's
covenant runs with the rent, so as to authorize suit by
the assignee thereon/'^
In case of the transfer of the reversion in a part
only of the land by the lessor, he and his transferee
are each entitled to recover, on the lessee's covenant to
pay rent, a proportional part of the rent/'-
The liability on the covenant to pay rent has been
regarded as apportionable to such an extent as to ren-
der an assignee of the leasehold interest in part of the
land subject to a proportional part thereof, and no
more.^^
Covenant to p?y rent in fee. The benefit of a
covenant to pay rent reserved or granted in fee will,
according to the English cases, it seems, not run with
the rent, so as to be available to subsequent owners
thereof, the theory being that a covenant will never
N. E. 1105; Trabue v. McAdams, Wineman v. Hughson, 44 111. App.
8 Bush. (Ky.) 74; Consumers Ice 22. Contra, Allen v. Wooley, 1
Co. V. Bixler, 84 Md. 437, 35 Atl. Blackf. (Ind.) 148.
1086; Bell v. American Protective 62. City of Swansea v. Thomas,
League, 163 Mass. 558, 28 L. R. A. 10 Q. B. Div. 48. Dreyfus v. Hirt,
452, 47 Am. St. Rep. 481, 40 N. 82 Cal. 621, 23 Pac. 193; Crosby
E. 857; Cohen v. Todd, 130 Minn. v. Loop, 13 111. 625; Worthington
227, L. R. A. 1915E, 846, 153 X. v Cooke, 56 Md. 51; Linton v.
W. 531; Meyer v. Alliance In v. Hart, 25 Pa. St. 193, 64 Am. Dec.
Co., 86 N. J. L. 694, 92 At. 1086, 691; Pelton v.. Place, 71 Vt. 430,
affirming 84 N. J. L. 450, 87 At. 76 Am. St. Rep. 782, 46 Atl. 63.
476; Durand v. Curtis, 57 N. Y. 63. Babcock v. Scoville, 56 111.
7, 15 Am. Rep. 453; Washington 461; Cox v. Penwick, 4 Bibb. (Ky.)
Natural Gas Co. v. Johnson, 123 538; Daniels v. Richardson, 22
Pa. 576, 10 Am. St. Rep. 553, 16 Pick. (Mass.) 565; Harris v.
At. 799; Harvard Inv. Co. V. Smith, Frank, 52 Miss. 155; St. Louis
66 Wash. 429, 119 Pac. 864. Public Schools v. Boatmen's Ins.
61. Willard v. Tillman, 2 Hill & Trust Co., 5 Mo. App. 91 (aem-
(N. Y.) 274; Demarect v. Willard, hie); Hogg v. Reynolds, 61 Neb.
8 Cow. (N. Y.) 206; Patten v. 758, 87 Am. St. Rep. 522, 86 N. W.
Deshon, 1 Gray (Mass.) 325. See 479; Van Rensselaer v. Bradley,
1474
Eeal Property,
[§ 408
run with an incorporeal thing.*'* In this country, on the
other hand, it has been usually held that the benefit
of the covenant will run with the rent,''^ this being in
accord with the view held here that a covenant will
run with an incorporeal thing.^*'
In this country, likewise, the burden of a covenant
to pay rent reserved or granted in fee is regarded as
passing with the land, so as to render the grantee of
the land personally liable thereon.^^ In England, it
would seem, in view of the expressions adverse to the
running of the burden of covenants on conveyances in
fee,*'^ that the grantee of the land would not be liable on
the covenant.^^
§ 408. Death of person entitled. A rent charge
granted by the owner of land is real or personal prop-
erty, according as the grantee is given a freehold es-
tate therein, or an estate less than freehold.'^*^ A rent
3 Denia (N. Y.) 135, 45 Am.
Dec. 451; Van Rensselaer v.
Gifford, 24 Barb. N. Ry. 349.
64. Milnes v. Branch, 5 Maule
& S. 411; Randall v. Rigby, 4
Mees. & W. 130, 135.
65. Scott V. Lunt's Adm'r, 7
Pet. (U. S.) 596, 8 L. Ed. 584:
Streaper v. Fislier, 1 Rawle (Pa.)
155, 18 Am. Dec. 604; Trustees of
St. Mary's Church v. Miles, 1
Whart. (Pa.) 229; Cook v. Bright-
ly, 46 Pa. St. 439; Van Rensselaer
V. Read, 26 N. Y. 558, distinguish-
ing Devisees of Van Rensselaer v.
Executors of Plainer, 2 Johns.
Cas. (N. Y.) 24. But see Irish v.
Johnston, 11 Pa. St. 488, and the
discussion of the question in
American notes to Spencer's Case,
1 Smith, Lead. Cas. 193.
66. See onte,^ § 391, notes 30-
34.
67. Streaper v. Fisher, 1 Rawle
(Pa.) 155; Herbaugh v. Zentmyer,
2 Rawle (Pa.) 159; Hannen v.
Ewalt, 18 Pa. St. 9; Van Rensse-
laer V. Read, 26 N. Y. 558; Van
Rensselaer v. Dennison, 35 N. Y.
393; Carley v. Lewis, 24 Ind.
123. On the same principle, the
burden of a covenant to pay rent
reserved upon the transfer of a
life interest in land will bind a
subsequent transferee of such
interest. McMurphy v. Minot, 4
N. H. 251.
68. See ante, § 390.
69. Holt, C. J., in Brewster v
Kidgill, 12 Mod. 166; Copinger
& Munro's Law of Rents, 473-476.
But that the burden does run, see
Sugden, Vendor & Purchaser
(13th Ed) 483; Harrison, Chief
Rents, 102.
70. Knolle's Case, 1 Dyer, 5b;
§ 409] Rent. 1475
reserved upon tlie grant of a fee-simple estate in land
is real property passing to the heir or devisee.'^
A rent incident to a reversion partakes of the
nature of the reversion, and passes therewith on the
death of the reversioner. Accordingly, it more usually
passes to the heir, as being reserved by a tenant in fee
simple making a lease for years, though it is person-
alty belonging to the executor or administrator, if re-
served on a sublease by a tenant for years. '^- If,
however, a rent reserved on a lease for years by a ten-
ant in fee simple becomes separated from the rever-
sion,"^ it is equivalent to an estate for years merely in
a rent charge, and passes to the personal representative
of the owner, and not to the heir or devisee.'^^
Rent which has become due is personal property,
and consequently, upon the death of the person entitled
thereto, though still unpaid, it goes to his personal
representative, and not to his heir or devisee.'^
§ 409. Time at which rent is due. A lease of land
ordinarily states either the periods with reference to
w^hich the installments of rent are to be computed, as
by providing for a "weekly," ''monthly," ''quarterly"
or "annual" rent, or it specifies the exact days on
Butt's Case, 7 Coke. 23a; 1 Woer- 87 Am. Dec. 324; Stinson v. Stin-
ner, Administration, § 297. son, 38 :Me. 593. Towle v. Swasey,
71. Cobb V. Biddle, 14 Pa. St. 106 Mass. 100; Woodhurn's Estate,
444; In re White's Estate, 167 Pa. 138 Pa. St. 606, 21 Am. St. Rep.
St. 206, 31 Atl. 569. As to the 932, 21 Atl. 16; Huff v. Latimer,
particular mode of descent of a 33 S. C. 253, 11 S. E. 758.
rent charge created by the res- 73. See cute, § 407, note 53.
ervation of a rent on a grant in 74. Knolle's Case, Dyer, 5b;
fee, see Co. Litt. 12b, 3 Preston, Williams, Executors (9th Ed.) 727.
Abstracts, 54; Van Rensselaer v. 75. 1 Woerner, Administra-
Hays, 19 N. Y. 68. tion, § 300; Mills v. Merryman,
72. 1 Woerner, Administration, 49 Me. 65; Haslage v. Krugh, 25
§ 300; Sacheverell v. Froggatt, 2 Pa. St. 97. Bealey v. Blake's Adm'r,
Saund, 367a, notes; Dixon v. Nic- 70 Mo. App. 229; Ball v. First Nat.
colls, 39 111. 372, 89 Am. Dec. 312; Bank of Covington, 80 Ky. 501.
Rubottom V. Morrow, 24 Ind. 202,
1-476 Eeal Peopekty. [§ 409
which rent is to be paid. In the latter case the ques-
tion as to the time for payment of the successive in-
stallments of rent is merely one of construction of the
language used. In the former case the rent for the
particular period named, whether it be a week, a
month, a quarter, or a year, does not become due until
the end of such period,^*'' in the absence of a stipula-
tion,"^^ or, it seems, a custom,''^ to the contrary, the
theory being that, since rent is a part of the profits of
the land, it is not payable until it has been earned by
the tenant's enjojTiient of the premises. In determin-
ing what is the last day of the rent period, whether a
year, a quarter, a month, or a week, for this purpose,
the same method of comimtation is employed, it seems,
as in determining the length of the tenn,'^^ that is, the
last day of each period, on which day the rent becomes
due, is not that corresponding to the first day, but the
day previous thereto. For instance, if the term begins
on the second day of January, and rent is in terms pay-
able monthly, it becomes due on the first and not the
second day of each of the following months, and if
payable yearly, it becomes due on the first day of
each of the following years. ^*^
Not infrequently there is an express provision for
the paymient of the rent, not at the end of the period
76. Coomber v. Howard. 1 C, 78. Tignor v. Bradley, 32 Ark.
B. 440; Parker v. Gortatowsky, 781; McParlane v. Williams, 107
129 Ga. 623, 59 S. E. 286; Castle- m. 33; Watson v. Penn, 108 Ind.
man v. Du Val, 89 Md. 657, 43 Atl. 21, 58 Am. Rep. 262, 8 N. E. 636;
821; Hilsendegen v. Scheich, 55 Calhoun v. Atchison, 4 Bush. (Ky.)
Mich. 468, 21 N. W. 894; Kistler 261, 96 Am. Dec. 299; Buckley v.
V. McBride, 65 N. J. L. 553, 48 Atl. Taylor, 2 Term. Rep. 600.
558. Ridgley v. Stillwell, 27 Mo. 79. 1 Tiffany, Landlord & Ten.
128; Holt V. Nixon, 73 C. C. A. p. 63.
268, 141 Fed. 952. 80. So if the term begins Jan-
77. Menough's Appeal, 5 Watts uary 10th, and the rent is pay-
& S. (Pa.) 432; Hilsendegen v. able quarterly, the rent falls due
Scheich, 55 Mich. 468, 21 N. W. on April 9th, July 9th, October
894; Gibbs v. Ross, 2 Head. 9th, and January 9th, and not on
fTenn.) 437. the tenth day of each of these
§ 409] Een-t. 1477
during wliicli it is earned, but at the commencement
of such period, that is, the rent is made payable "in
advance," as it is usually expressed.
Time of day for payment. Rent may be paid
at any hour of the day on which it becomes due,*^ but
there is no obligation to pay it until midnight of tliat
day, and the tenant is consequently not in default until
the next day.^^ Applying this doctrine, it has been
held that if the landlord, by his action, the tenancy
being at will, terminates the tenancy during the day on
which the rent is payable, the tenant is relieved from
liability, ^^ and that an eviction on that day under par-
amount title has a like effect.^'* On the same theory
it has been decided that if a tenant in fee simple, after
making a lease, dies on the rent day, the installment
of rent falling due on that day belongs, not to his per-
sonal representative, but to his heir or devisee, as
having become due after his death,®-^ And it seems
that, in case the reversion is transferred on that day,
the transferee is entitled to the installment then falling
due.^^ The English courts refused, however, to apply
such a theory in the case of a life tenant who, after
leasing, not under a i)ower, died on a rent day, and
they regarded the rent in such a case as belonging to
the personal representative of the life tenant,^" being
moved, presumably, to this determination, by the fact
months. Donaldson v. Smith, 1 83. Hammond v. Thompson.
Ashm. (Pa.) 197. 168 Mass. 531, 47 N. E. 137.
81. Clun's Case, 10 Co. Rep. 84. Smith v. Shepard, 15 Pick.
127b; Dibble v. Bowater, 2 El. & (Mass.) 147, 25 Am. Dec. 432.
Bl. 564; Comyn. landlord & Ten- 85. Duppa v. Mayo, 1 Wms.
ant, 219. Saund. 287; Rockingham v. Pen-
•82. Duppa V. Mayo, 1 Wms. rice, 1 P. Wms. 177.
Saund. 287 and note (17); Cut- 86. See Hammond v. Thomp-
ting V .Derby, 2 W. Bl. 1077. Left- son, 168 Mass. 531, 47 X. E. 137.
ley V. Mills, 4 Term Rep. 170; 87. Rockingham v. Penrice, 1
Wolf V. Rauck, 150 Iowa, 87, Ann. p. Wms. 177; Southern v. Bellasis,
Gas. 1912D, 386, 129 N. W. 319; 1 P. Wms. 179, note. Strafford
Sherlock v Thayer, 4 Mich. 355, v. Wentworth, Prec. Ch. 555.
66 Am. Dec. 539.
1478 Real Property. [§ 410
that otherwise the tenant under the lease would have
escaped liability for the entire rent period.^^
Acceleration of rent. Occasionally the lease
provides that the rent for the whole term shall im-
mediately become payable upon a named contingency,
as for instance, upon the insolvency or bankruptcy of
the tenant,^^"" the removal of his personal property
from the premises,^^'* or his failure to pay an install-
ment of rent when due.^^'^ Occasionally the courts ap-
pear to have applied the doctrine of "anticipatory
breach," which has been the subject of considerable dis-
cussion in connection with the law of contracts,^^*^ to
a case in which the liability for rent was repudiated,
this being regarded as immediately giving the landlord
a right of action against the tenant for damages, esti-
mated on the theory that the latter would make no
further pajmients of rent as stipulated. ^^"^
§ 410. Apportionment as to time. At common
law, rent is not regarded as accruing from day to day,
like interest, but it is only upon the day fixed for pay-
ment that any part of it becomes due.^^ The result of
this principle is that, ordinarily, the person who is on
that day the owner of the reversion is entitled to the
entire installment of rent due on that day, though he
may have been the owner of the reversion or rent but
a part of the time which has elapsed since the last
88. See PoH, § 410. 162 Cal. 602, 123 Pac. 797; Minne-
88a. Piatt v. Johnson, 168 Pa. apolis Baseball Co. v. City Bank,
47, 47 Am. St. Rep. 877, 31 Atl. 74 Minn. 98, 76 N. W. 1024; Brown
935. V. Hayes, 92 Wash. 300, 159 Pac.
88b. Goodwin v. Sharkey, SO 89.
Pa. St. 149. 89. Clun's Case, 10 Coke 126b;
88c. Johns v. Winters, 251 Pa. Dexter v. Phillips, 121 Mass. 178.
169, 96 Atl. 130; Hart v. Wynne, 23 Am. Rep. 261; Anderson v.
— (Tex. Civ.) — , 40 S. W. 848. Robbins, 82 Me. 422, 9 L. R. A.
88d. See Wald's Pollock, Con- 568, 19 Atl. 910; Marshall v. Mose-
tracts (Williston's Ed.) p. 355 et ley, 21 N. Y. 280; Bank of Penn-
seg sylvania y Wise, 3 Watts (Pa.)
88e. Bradbury v. Higgenson, 394.
<§ 410] Eent. 1479
rent day. Conversely, one who has been the owner of
the reversion or rent during a part of that period can
claim no portion of the installment unless he is such
owner at the time at which the installment is payable by
the terms of the lease. The general rule in this regard
is ordinarily expressed by the statement that rent
cannot be apportioned as to time.
Applications of this rule occur as follows: If a
tenant in fee simple, having made a lease, dies between
two rent days, the entire installment of rent falling
due belongs to his heir or devisee, as being the owmer
of the reversion at the time the installment falls due,
and the executor or administrator can assert a claim
to no portion thereof.'^'' And when the landlord makes
a conveyance of the reversion, the grantee is entitled,
in the absence of a contrary stipulation, to all the rent
which falls due at the next rent day, and the grantor
can claim no part thereof,^ ^ So in case the tenant is
evicted by title paramount between rent days, the
landlord cannot claim any portion of the installment
next falling due,''- and this is a fortiori the case if the
landlord himself evicts the tenant. The case is the
same if the landlord terminates the tenancy, either
by force of an express option so to do,^^"^^ or in accord-
ance with the nature of the tenancy, as being one at
90. Clun's Case, 10 Coke, 127a; 92. Emglisli v. Key, 39 Ala.
Duppa V. Mayo, 1 Wms. Saund. 113; Martin v. Martin, 7 Md. 368,
287; Anderson v. Robbins, 82 Me. 61 Am. Dec. 364; Adams v. Bige-
422, 8 L. R. A. 588, 19 Atl. 910. low, 128 Mass. 365; Russell v.
Eloodworth v. Stevens, 51 Miss. Fabyan, 28 N. H. 543, 61 Am.
475; Dorsett v. Gray, 98 Ind. 237; Dec. 629.
Allen V. Van Houton, 19 N. J. 93-94. Zule v. Zule, 24 Wend.
Law (4 Harr.) 47. (N. Y.) 76, 35 Am. Dec. 600:
91. English V. Key, 39 Ala. 113; Nicholson v. Munigle, 6 Allen (88
Martin v. Martin, 7 Md. 368, 61 Mass.) 215. But see dictum in
Am. Dec. 364; Hull v. Stevenson, Perry v. Aldrich, 13 N. H. 343, 38
58 How. Pr. (N. Y.) 135, note. Am. Dec. 493, to the effect that
Bank of Pennsylvania v. Wise, a lease providing for the termin-
3 Watts (Pa.) 394; Hearne v. ation on a contingency should be
Lewis, 78 Tex. 276, 14 S. W^ 572. construed as providing for ap-
portionment.
1480 Real Property. [§ 411
will/'^ or for breach of a condition subsequent.^^ By
force of this rule, at common law, if a tenant for his
own or another's life makes a lease for years, and the
lease comes to an end by reason of his death or that
of the cestui que vie, the lessee entirely escapes liabil-
ity for the installment of rent next falling due.®'^ The
lessor or his executor cannot recover the whole install-
ment, since the life interest has ceased before the
installment falls due, and he cannot, under the rule
against apportionment, recover a portion calculated up
to the time of the cessation of his interest. Nor can the
remainderman recover any portion of the rent, since the
lease by which the rent was reserved is no longer opera-
tive, and also because he is a stranger to the lease.
The rule forbidding the apportionment of rent, so
far as concerns a rent reserved on a lease by a tenant
for his own life, was changed in England, by Stat. II
Geo. 2, c. 19, § 15, providing that if any tenant for
life should die before the day for the payment of rent
reserved on a lease which terminated on such death,
his executors or administrators might recover from
the under tenant a proper proportion of the rent, ac-
cording to the length of time between the last rent day
and the death of the tenant for life. And a similar
statute has been enacted in a number of states. By
later legislation in England the right of apportionment
has been gVeatly extended, and in a few states there is
legislation of a like tendency.^ ^
§ 411. Amount of the rent. The amount of tlie
rent to be jjaid must be certain or- capable of reduction
95. Leighton v. Thee;], 2 SaUc. HI. 365, 55 Am. Rep 424; Watson
413; Robinson v. Deering, 56 Me. v. Penn, 108 Ind. 21, 8 N. E. 636,
357; Hammond v. Thompson, 168 58 Am. Rep. 26. Gee v. Gee, 22
Mass. 531, 47 N. E. 137. N. C. (2 Dev. & B. Eq.) 103.
96. HaH r. Joseph Middleby, 98. See Tiffmy, Landlord &
197 Mass. 485, 83 N. E. 1114. Ten. pp. 1076-1079; Wilson v.
97. Clun's Case, 10 Coke 127a; Hagey, 251 111. 452, 96 N. E. 277;
ex parte Smyth, 1 Swanst. 337, Smlthvvick v. Oliver. 94 Ark. 451,
and notes; Hogland v. Crum, 113 127 S. W. 706.
§ 411] Rent. 1481
to a certainty,"^ but it is sufficient that the amount
can be ascertained before the time for payment.^ As
an example of rent which is thus ascertainable at the
time for its payment, though not at the time of the
demise, may be mentioned rent consisting of a certain
portion of the crop which may be raised upon the land,
or computed with reference to the amount of minerals
extracted from the land. So it may be made to fluctuate
with the price of wheat,^^with the income which the
tenant may derive from the use of the premises,^ or
with the particular use which the tenant may make of
the land."*
Not infrequently the amount of the rent is reduced
by an agreement entered into between the landlord and
tenant after the making of the lease. That such an
agreement must be supported by a valid consideration
has been recognized in a numl:er of cases,^ and there are
several decisions upon the sufficiency of the considera-
tion in the particular case.^ In spite of these decisions,
there is, it is submitted, room for question whether,
applying common law standards, a consideration should
be regarded as necessary. At common law, one entitled
99. Co. Litt. 142a; Gilbert, Iowa, 86, 12 X. W. 767; Bow-
Rents, 9. ditch V. Chickering, 139 Mass.
1. Co. Litt. 96a; Selby v. 283, 30 N. E. 92; Wharton v. An-
Greaves, L. R. 3 C. P. 594; Walsh derson, 28 Minn. 301, 9 N. W.
V. Lonsdale, 21 Ch. Div. 9; Mc- 860; Hazeltine v. Ausherman, 87
Farlane v. Williams, 107 111. 33; Mo. 410; Coe v. Hobby, 72 N. Y.
Butcher v. Culver, 24 Minn. 584. 141, 28 Am. Rep. 120.
2. Kendall v. Baker, 11 C. B. 6. Doherty v. Doe, 18 Colo.
842. 456, 33 Pac. 165; Raymond v.
3. Hardy v. Briggs, 14 Allen Krauskopf, 87 Iowa, 602, 54 N.
(Mass.) 473; Long v. Fitzsimmons, W. 432; Lamb v. Rathburn, 118
1 Watts & S. (Pa.) 530. Mich. 666, 77 N. W. 268; Ten Eyck
4. Roulston V. Clark, 2 H. Bl. v. Sleeper, 65 Minn. 413, 67 N.
563; Bowers v. .\ixon, 12 Q. B. W. 1076; Bowman v. Wright, 65
558. Neb. 661, 91 N. W. 580, 92 N. W.
5. Goldsborough v. Gable, 140 580; Holmquist v. Bavarian Star
111. 269, 15 L. R. A. 294, 29 N. Brew. Co., 1 App. Div. 347, 72 N.
E. 722. Id. 152 111. 594, 38 N. Y. St. Rep. 443, 37 N .Y. Supp.
E. 1025; Wheeler v. Baker, 59 :',80.
1482 Keal Property. [§ 412
to rent can extin.^uish it by executing a release in favor
of the person whose estate was charged therewith/
and an agreement to reduce the rent is, it is conceived,
in effect merely a partial release of the rent, that is,
a pro fauto transfer of the rent by way of release,
w^hich is perfectly valid at common law, without any
consideration.^ The common law release, however, re-
quired a seal, and in so far as a seal may still be
necessary to the validity of a release, an agreement,
not under seal, for the partial or total extinguishment
of rent, might well be regarded as a contract to execute
a release, to which the court would give elfect only if
supported by a consideration.
An agreement, made after the making of the lease,
in terms to increase the rent, does not, strictly speaking,
increase the rent. The additional sum agreed to be
paid is not rent, since it is not reserved upon the mak-
ing of a lease or other conveyance.^ The only theory
on which it could be regarded as rent would be by
considering the agreement as a new demise, effecting
a surrender by operation of law of the original lease,^"
but this would give to the agreement a force ordinarily
not contemplated by the parties. ^^
§ 412, Apportionment as to amount. Eent may
be apportioned as regards the amount thereof, that is, a
person may become entitled to, or liable for, a portion
only of the rent originally reserved.^^ Either one of
three different cases of such apportionment may arise,
that is: (1) a right to a distinct portion of the rent,
and to such portion onh', may be vested in
each of two or more persons; (2) a liability for a
7. Post, § 413, note 39-41. 32 N. Y. Super. Ct. (2 Sweeny)
8. See Pollock, Contracts (Wil- 74.
liston's Ed.) 813. 10. Post, § 431.
9. Donellan v. Read, 3 Barn. 11. See Doe d. Monck v. Geekie,
6 Adol. 899; Hoby v. Roebuck, 5 Q. B. 841.
7 Taunt. 157; Coit v. Braunsdorf, 12. As to apportionment of
<^ 412] • Eent. 1483
distinct portion of the rent, and for sucli portion
only, may be imposed on one person, another being'
liable for the balance; or (8) the rent may be extin-
guished as to a joortion, and a ])ortion only.
An apportionment of the character first referi'ed
to, resulting from the vesting of the right to a distinct
])ortion of the rent in each of two or more persons, oc-
curs when the landlord grants the reversion in part of
the land, retaining the balance, ^^ and also when he
transfers the reversion in different parts of the land to
different persons, not retaining any part thereof.^^
And the case is the same when he severs the reversion
by devise. ^^ An apportionment also takes place if the
reversion is severed by act of the law, as when, on the
death of the landlord, it passes to two or more heirs, ^"
or when it passes to the heir, and, as to one-third, to
the widow.^" In the case of such a severance of the
reversion, the tenant is entitled to demand that the
jury determine, in an action for the rent, the respective
values of the different portions of the land, and the con-
sequent extent of his obligation to each owner of a
part of the reversion. ^^
Not only may the rent be apportioned by a sever-
ance of the reversion, but it may also be apportioned
rent on lease of land and chat- 22 Pa. 144.
tels, see wife, § 405, notes 34-40. 15 Ewer v. .Aloyle, Cro. Eliz.
13. Co. Litt. 148a; 2 Co. Inst. 771; Hare v. Prou:foot. 6 U. C.
504; West v. Lassells, Cro. Eliz. Q. B. (0. S.) 617.
851; Bliss v. Collins, 5 Barn. & 16. Leitch v. Boyington, 84 111.
Aid. 876; Worth ington v. Cooke, i79, 25 Am. Rep. 442; Cole v. Pat-
56 Md. 51; Biddler v. Hussman, terson, 25 Wend. (X. Y.) 456;
23 Mo. 597; Grubbie v. Toms, 70 Bank of Pennsylvania v. Wise,
N. J. Law 522, 57 Atl. 144, Id. 3 Watts (Pa.) 404.
71 .\. J. Law, 338, 59 Atl. 1117; 17. 1 Rolle Abr. 237, pi. 5.
Linton v. Hart, 25 Pa. 193. 64 18. Bac. Abr. Rent (.M. 3) ;
Am. Dec. 691. Fish v. Campion, 1 Rolle, Abr.
14. Gilbert, Rents. 173; Ehr- 237, pi. 1; Bliss v. Collins, 5 Barn,
man v. Mayer, 57 Md. 612, 40 Am. & Aid. 876; Hare v. Proudloot, 6
Rep. 448; Crosby v. Loop, 13 111. U. C. Q. B. (0. S.) 617; Diddle
625, 14 111. 320; Reed v. Ward, v. Huss, 23 Mo. 597.
1484 Eeal Property. . [§ 412
by the landlord without reference to the reversion, this
being either retained by him or transferred to another,
as when one who has demised land for a term of years,
reserving rent, grants to each of several i^ersons, or to
one person, a portion of the rent.^^ So tenants in com-
mon of land, after making a lease thereof, reserving
one entire rent, m-iy, without partitioning the reversion,
apportion the rent between them.^'^
On severance of leasehold. In case the lease-
hold interest in different parts of the premises becomes
vested in different persons, each part, or the owner of
each part, is ordinarily liable only for a proportioned
part of the rent.-^ And the original lessee remains
liable to the landlord for the whole rent, under his
covenant to pay rent.^^
A tenant cannot, without the consent of the owner
of the rent, by any disposition of the land or of a part
thereof, apportion the rent so as to affect the right of
such owner to collect the whole rent which may at any
time fall due, by means of a proceeding against the
land. Accordingly, if the tenant of part of the leased
premises is in default, the landlord may distrain upon
another part,-^ and he may presumably enforce a con-
dition of forfeiture against such other part as well as
against that part which belongs to the tenant in default.
Partial extinction or suspension of rent. Cases
of the apportionment of the rent by reason of the ex-
tinction or suspension of a portion of the rent occur
19. Ards V. Watkins, Cro. Eliz. ardsou, 39 Mass. (22 Pick.) 565;
651; Bliss v. Collins, 5 Barn. & Hogg v. Reynolds, 61 Neb. 758,
Aid. 876, 882; Rivis v. Watson, 5 87 Am. St. Rep. 522, 86 N. W.
Mees. & W. 255. 479; Van Rennselaer v. Bradley,
20. Powis V. Smith, 5 Barn. & 3 Denio (N. Y.) 135, 45 Am. Dec.
Aid. 850; Woolsey v. Lasher. 3? 451.
App. Div. 108, 54 N. Y. Supp. 737. 22. Aute, § 407, note 59.
21. Babcock v. Seoville, 56 111. 23. Curtis v. Spitty, 1 Bing.
461; St. Louis Public Schools v. N. Cas. 756; Jackson v. Wychoff,
Boatmen's Insurance & Trust Co., 5 Wend. (X. Y.) 53.
5 Mo. App. 91; Daniels v. Rich-
§ 412] Eent. 1485
upon the termination of the tenant's estate as regards
a part of the jDremises. Thus, if the tenant of the whole
premises leased surrenders his leasehold interest in a
part thereof, or his leasehold is otherwise in part
merged in the reversion, the rent is apportioned, it be-
ing extinguished in an amount proi)ortioned to tlie
value of the portion as to which the lease is no longer
outstanding, while still existent as regards the lial-
ance.-"* The rent is also apportioned in case the land-
lord re-enters upon a part only of the land for breach of
a condition of the lease,-^ and in case the tenant is
evicted from part of the land by title paramount, the
landlord being thereafter entitled to such portion only
of the rent as is proportioned to the part of the leased
premises which the tenant still holds under him.-*^
Occasionally the rent is apportioned by reason of the
lessee's inability to obtain possession of the whole of
the demised premises.^'
In laction on covenant for rent. There is a
dictum in an English case,-** that "in covenant as be-
tween lessor and lessee, where the action is personal,
and upon a mere privity of contract, and on that
account transitory as any other personal contract is, the
rent is not apportionable." This dictum, it seems clear,
24. Litt. § 222; Co. Litt. 148a; 470, 74 Am. Dec. 108; Fillebrown
Smith V. Mallngs, Cro. Jac. 160; v. Hoar, 124 Mass. 580; Cheairs
Higgins V. California Petroleum & v Coats, 77 Miss. 846, 50 L. R.
Asphalt Co., 109 Cal. 304, 41 Pac. A. Ill, 78 Am. St. Rep. 546, 28
1087; Leitch v. Boyington, 84 111. So. 728; Lawrence v. French, 25
179, 34 L. R. A. 55, 57 Am. St. Wend. (N. Y.) 445; Christopher v.
Rep. 396; Ehrman v. Mayer, 57 Austin, 11 N. Y. 216; Poston v.
Md. 612, 40 Am. Rep. 448; Nellis Jones, 37 X. Car. (2 Ired. Eq.)
V. Lathrop, 22 Wend. (X. Y.) 121, 350; Tunis v. Grandy, 22 Gratt.
34 Am. Dec. 285; Van Rensse- (Va.) 109, Co. Litt. 148b.
laer v. Gifford, 24 Barb. (X. Y.) 27. Ante, § 413, notes 43-59.
349. 28. Stevenson v. Lambard, 2
25. Walker's Case, 3 Coke 22; East 575, per Lord EHenborough,
Collins V. Harding, 13 Coke 58. C. J.
26. Halligan v. Wade, 21 111.
2 R. P.— 19
1486 Eeal Pkoperty. [§ 412
is not correct as applied to an action upon the covenant
for rent, by a lessor who has disposed of the reversion
in part of the leased premises, he being entitled to
recover a proportionate part of the rent and no more.^^
Whether it is correct as applied to a case in which the
rent is in part extinguished or suspended, as upon a
surrender or eviction by title paramount, it is difficult
to say. The covenant might frequently be construed as
one to pay the rent that may become due, rather than
to pay the amount reserved, in which case the liability
under the covenant would be the same as in an action
of debt for rent, and a loss of the possession of part
of the premises would be a ground for a pro tanto
reduction of liability in an action on the covenant, as
in an action of debt.^*^ In so far as the covenant is not
'susceptible of this construction, it is somewhat difficult
to find a satisfactory ground on which to base a partial
reduction of liability in case of the partial loss of pos-
session by the tenant.'^ ^ The courts might possibly
apply the somewhat indefinite doctrine of failure of
consideration in this connection.
Of rent charge. A rent charge is not appor-
tionable to the same extent as a. rent service. Rent
charges were never favored by the courts as were rents
service, which were regarded as a part of the feudal con-
stitution of the realm.^- Consequently, if the owner of the
rent acquires a part of the land from which it issues, by
29. Swansea v. Thomas, 10 Q. Poston v. Jones, 37 N. C. (2 Ired.
B. Div. 48; Worthington v. Cooke, Eq.) 350, 38 Am. Dec. 683, it is at
56 Md. 51; Linton v. Hart, 25 least suggested that in such case
p. 193, 64 Am. Dec. 691. a court of equity would inter-
30. See Baynton v. Morgan, 22 vene in order to compel an ap-
Q. B. Div. 81, per Fry, J. portionment.
31. In Shuttleworth v. Shaw, 6 32. See Gilbert, Rents, 152. A
Upper Can. Q. B. 539, it was de- rent seek, likewise, has been re-
cided that in an action of coven- garded as not apportionable by
ant for rent there could be no the act of a party. Vin. Abr.,
apportionment on account of the Apportionment (A) 2; Id., Rent
partial eviction of the tenant. In (Ga.) 12.
-§ 41b'] Eent. 1487
voluntary conveyance, no apportionment occurs, and
the whole rent is extinguished.^^ It is apportioned, how-
ever, if the owner of the rent releases a part thereof,"*
or if he acquires a part of the land by descent.^^ And
even on a voluntary conveyance to him of part of the
land an apportionment occurs if it is so agreed be-
tween the parties to the conveyance, this in effect
creating a new rent charge,"^^ Upon a transfer of a
portion of the rent to another an apportionment oc-
curs.^'''
§ 413. Extinction or suspension of rent^ By
release. The right to rent ceases upon the making of a
release of the rent by the owner thereof in favor of
the owner of the land.^^ If the release is in terms of
a portion only of the rent, the balance remains existent
as a charge on the whole land.'''' A release, as under-
stood at common law, is an instrument under seal, and
such an instrument is valid though without any con-
sideration.^'^ An agreement not to claim any rent, if
not under seal, and not supported by a consideration,
is, like any other such agreement, invalid.*^
The fact that no rent has been demanded, or that
no rent has been paid, for a very considerable period,
even twenty years or more, does not raise a pre-
sumption that the rent has been released, thougli it may,
by reason of the statute of limitations, prevent a re-
33. Litt. § 222; Co. Litt. 147b, 38. Litt. § 479; Co. Litt. 280a;
148a. Howell v. Lewis, 7 C. & P. 566.
34. Co. Litt. 148a; Bac. Abr., 39. Co. Litt. 148a; 2 Leake
Rent (m) 1. 407; Ingersoll v. Sargeant, 1
35. Litt. § 224; Co. Litt. 194b; Whart. (Pa.) 337.
Cruger v. McLaury, 41 N. Y. 219. 40. Co. Litt. 264b; Bac. Abr.,
36. Co. Litt. 147b, and note; Release (A.); Wald's Pollock.
Van Rensselaer v. Chadwick, 22 Contracts (Williston's Ed.) 812.
N. Y. 32. 41. See Haseltine v. Ausher-
37. Co. Litt. 148a; Gilbert, man, 87 Mo. 410; Kaven v.
Rents, 163; Farley v. Craig. 11 N. Chrystie, 84 N. Y. Supp. 470;
J. Law (<; Halst.) 262. Donaldson v. Wberry. 29 Out.
1488-
Real Pboperty.
[§ 4].-?
covery of particular installments of rent overdue.^-
Withholding of possession. It has ordinarily
been held that the lessee is not liable for rent in case
the lessor prevents him from taking possession under
the lease.*^ By some decisions, even though the lessee
takes possession of part of the leased premises, he is,
if excluded from the balance, not liable for any part
of the rent or on a quantum meruit,*'^ but in other cases
a different view is taken.*^ The exclusion of the tenant
by the landlord from part of the leased premises ap-
pears so analogous to that of an eviction of the tenant
by the landlord from part,^^ that it might well, it seems,
be regarded as having a similar effect in suspending the
entire rent.^'^
That the lessee, without being prevented from tak-
ing possession, fails to take possession, is obviously no
defense to a claim for rent.^^ One cannot thus rid
himself of an obligation assumed by him, merely be-
cause he finds it convenient to withdraw from his bar-
gain.
552. But in Hill v. Williams, 41
S. C. 134, 9 S. E. 290, the con-
trary appears to be assumed.
42. Ehrman v. Meyer, 57 Md.
612, 40 Am. Rep. 448; Jackson
V. Davis, 5 Cow. 130, 15 Am. Dec.
451; Lyon v. Odell, 65 N. Y. 28;
St. Mary's Church Trustees v.
Miles, 1 Whart. (Pa.) 229.
43. Reed v. Reynolds, 37 Conn.
469; Moore v. Guardian Trust
Co., 173 Mo. 218, 73 S. W. 143;
Penny v. Fellner, 6 Okla. 386, 50
Pac. 123; McClurg v. Price, 59
Pa. 420, 98 Am. Dec. 356; MerriU
V. Gordon, 15 Ariz. 521, 140 Pac.
496. See ante, § 50.
44. Moore v. Mansfield, 182
Mass. 302, 65 N. E. 398, 94 Am.
St. Rep. 657; AlcClurg v. Price 59
Pa. 420, 98 Am. Dec. 356; Penny
V. Fellner, 6 Okla. 386, 50 Pac.
123. See McLeod v. Russell, 59
Wash. 676, 110 Pac. 626.
45. See Knox v. Hexter, 42 N.
Y. Super. Ct. (10 Jones & iS.) 8;
Eldred v. Leahy, 31 Wis. 541, 11
Am. Rep. 613.
46. Ante, § 58.
47. Post, this section, note 95.
48. Levi v. Lewis, 6 C. B. N.
S. 766; Douglass v. Branch Bank,
19 Ala. 659, 54 Am. Dec. 207;
Little V. Hudgins, 117 Ark. 272.
174 S. W. 520; Marix v. Stevens,
10 Colo. 261, 15 Pac. 350; Union
Pac. R. Co. V. Chicago, R. I. &
P. R. Co., 164 111. 88, 45 N. E.
488; Brown v. Cairns, 107 Iowa,
727, 77 N. W. 478; Becar v. Flues,
§ '^I'S] Kent. 1489
Exclusion by paramount owner. Tliat tlie
lessee is niialjle to obtain possession owing to the pos-
session of one having paramount title^ is a good defense
to a claim for the rent,^^ and this has been held to be
so even though the exclusion from possession extends
to but a part of the premises.^" It has been decided,
however, that if the lessee takes possession of the part
from which he is not excluded, he is liable in an action
of use and occupation accordingly. -"^^ It would seem
that the partial exclusion of the lessee from possession
by one having paramount title might well be assimilated,
so far as concerns its effect on his liability for rent, to
his partial eviction by such person, so as to call for
an apportionment of the rent,^- and there are occasional
decisions to that effect.^^
One holding under a previous unexpired lease by
the same lessor holds by paramount title, for this
purpose,^^ as for others.'^^-^^
It has been asserted in England and Canada,^'^
that possession of part of the leased premises, by a
third person holding under an unexpired prior lease
64 N. Y. 518; McGlynn v. Brock, S';5 (semble).
Ill Mass. 219. 52. Post, this section, note I>.
49. Brandt v. PhiUppi, 82 Cal. 53. McLoughlin v. Craig, 7 Ir.
640, 23 Pac. 122, 7 L. R. A. 224; C. L. 117; Seabrook v. Moyer, 88
Duncan v. Moloney, 115 111. App. Pa. 417.
522; Andrews v. Woodcock, 14 54. See Neale v. McKenzie, 1
Iowa, 397; Posten v. Jones, 37 Mees. & W. 746; Dengler v.
i\. C. (2 Ired, Eq.) 350, 38 Am. Michelssen, 76 Cal. 125, 18 Pac.
Dec. 683; Maverick v. Lewis, 3 138; Lawrence v. French, 25
McCord (S. C.) 211; State Uni- Wend. (N. Y.) 443, 7 Hill, 519;
versity v. Joslyn, 21 Vt. 52. See Tunis v. Grandy, 22 Gratt. (Va.)
entc, § 50. 519.
50. Neale v. McKenzie, 1 Mees. 55-56. Ante, § 58(a), notes 43-
& W. 746; Dengler v. Michelssen, 46.
76 Cal. 125, 18 Pac. 138. 57. Neale v. McKenzie, 1 Mees.
51. Lawrence v. French, 25 & W. 747; Ecclesiastical Com'rs
Wend. (N. Y.) 443, 7 Hill, 519; of Ireland v. O'Connor, 9 Ir. C.
Tunis V. Grandy, 22 Gratt. (Va.) L 242; Holland v. Vanstone, 27
109; Wtitson v. Wand, 8 Exch. U. C. Q. B. 15.
1490 Real Pkopekty. [§ 413
made by the same lessor, will not constitute even a
partial defense to an action for rent under the second
lease, if this latter is under seal, the theory being that
it then cgerates as a lease in possession of that part
of the land of which the lessor has possession, and a
lease of the reversion (concurrent lease^^) of that part
held by the prior lessee. Such a view, that the second
lease will, so far as possible be regarded as a concurrent
lease, is not suggested in any of the cases decided in
this country as to the liability for rent when a part
or the whole of the premises is in the possession of a
prior lessee.'^ In any case, it would seem, the question
whether the second lease may be so regarded for the
purpose of imposing liability for rent, would be one of
the construction of the language used.
Exclusion by stranger without right. There
are several cases to the effect that the lessee's inability
to obtain possession of the premises owing to the pres-
ence of a third person wrongfully in possession, such
as a tenant holding over his term, is no defense to an
action for rent.*'° This view accords with the recog^
nized rule in the analogous case of the eviction of the
tenant by a wrongdoer.^ ^ There are, however, to be
found occasional dicta "^^ and decisions ^^ to the con-
trary.
Merger and surrender. If the leasehold in-
terest and the immediate reversion thereon become
vested in the same person or persons, either by the
acquisition of the former interest by the landlord, or
58. Ante, § 53(c). 52. And see Field v. Herrick, 101
59. Ante, this section, note 54. 111. 110.
60. Mechanics' & Traders' Fire 61. 2 Tiffany, Landlord &
Insurance Co. v. Schott, 2 Hilt. Ten. p. 1301.
(N. Y.) 550; Ward v. Edesheimer, 62. Rieger v. Welles, 110 Mo.
43 N. Y. St. Rep. 138, 17 N. Y. App. 166. 84 S. W. 1136; Smart
Supp. 173; Cozens v. Stevenson. v. Allegaert, 14 Phila. (Pa.) 179.
5 Serg. & R. (Pa.) 421; Univer- 63. Kean v. Kolkschneider. 21
sity of Vermont v. Joslyn, 21 Vt. Mo. App. 538; Hatfield v. Fuller-
§ 413:]
Rent,
1491
by tlie acquisition of the latter interest "by the tenant,
or by the simultaneous acquisition of both interests
by the same person or persons, the tenant's interest is
merged in the reversion,^^ and the rent reserved upon
the creation of the lesser estate is extinguished.*'''
When merger occurs as a result of the acquisition of
the tenant's interest by the landlord, the termination
of the tenancy and extinguishment of the rent are or-
dinarily said to be the result, not of merger, but of
surrender,***' that is, of the yielding up of the particular
estate to the landlord.**' If the merger or surrender
takes place as to a part of the leased premises only, the
rent is proportionately extinguished.^^ The merger or
surrender obviously does not atfect the liability for
rent which has previously accrued.*'''
ton, 24 in. 278; Goldman v.
Dieves, 159 Was. 47, 149 N. W.
713.
64. Ante, § 59(e).
65. Otis V. California Petroi-
cum & Asphalt Co., 109 Cal. 304,
41 Pac. 1087; Otis v. McMillan,
70 Ala. 46; Erving v. Jas. H.
Goodman & Co. Bank, 171 Cal. 559,
153 Pac. 945; Liebschutz v.
Moore, 70 Ind. 142, 36 Am. Rep.
182; Casey v. Gregory, 52 Ky. (13
B. Mon.) 505, 56 Am. Dec. 581;
Matter of Eddy, 10 Abb. N. Cas.
(N. Y.) 396; Nellis v. Lathrop,
22 Wend. (X. Y.) 121, 34 Am. Dec.
285; Mixon v. Coffield, 24 N. Car.
(2 Ired Law) 301; Sutliff v. At-
wood, 15 Ohio St. 186; Alvord v,
Banfield, 85 Ore. 49, 166 Pac.
549.
66. American Bonding Co. v.
Pueblo Inv. Co. (C. C. A.), 150
Fed. 17, 19 L. R. A. (N. S.) 557;
Terstegge v. First German Mut.
Benevolent Soc, 92 Ind. 82, 47
Am. Rop. 135; Dills v. Stobie, 81
111. 202; Armour Packing Co. v.
Des Moines Pork Co., 116 Iowa,
723, 93 Am. St. Rep. 270, 89 N.
W. 196; Amory v. Kannoffsky, 117
Mass. 351, 19 Am. Rep. 416;
Kiernan v. Germain, 61 Miss. 498;
Underbill v. Collins, 132 N. Y.
269, 30 N. E. 576; Everett v. Wil-
liamson, 107 N. C. 204, 12 S. E.
187, 22 Am. St. Rep. 870; Minne-
apolis Co-Operative Co. v. Wil-
liamson, 51 Minn. 53, 38 Am. St.
Rep. 473, 52 N. W. 98; Frankel
V. Steman, 92 Ohio St. 197, 110
N. E. 747; Pratt v. H. M. Richards
Jewelry Co., 69 Pa. 53, 8 Am. Rep.
212; West Concord Mill Co. v.
Hosmer, 129 Wis. 8, 116 Am. St.
Rep. 931, 107 N. W. 12.
67. Post, § 431.
68. Ante, § 412, note 24.
69. Kastner v. Campbell, 6
Ariz. 145, 53 Pac. 586; Sperry v.
Miller, 8 N. Y. 336, 16 N. Y. 407;
Nicol V. Young, 68 Mo. App. 448;
Johnson v. Muzzy, 42 Vt. 708, 1
Am. Rep. 365; Attorney General
V. Cox, 3 H. L. Cas. 340.
1492
Real Pkopebty.
[§ 413
By the English decisions,^^^ if the reversion on a
sublease is merged in the original reversion, the sub-
lessee's liability for rent is terminated, the same prin-
ciple applying as in the case of surrender of the. sub-
reversion. How far this doctrine would be applied
in this country is doubtful/'-'^
AbandoP-ment by tenant. Tliat the tenant
abandons the premises does not affect his liability for
rent,*'^^ unless the landlord, by assuming control of the
69a. Thre'r v. Barton, Moore,
94; Webb v. Russell, 3 Term Rep.
393.
69b. The doctrine was refer-
red to as an existing doctrine in
Bailey v. Richardson, 66 Cal. 416,
5 Pac. 910; Buttner v. Kasser, 19
Cal. App. 755, 127 Pac. 811; Kri-
der V. Ramsay, 79 N. C. 354; Mc-
Donald V May, 96 Mo. App. 236,
69 S. W. 1059. See Williams v.
Michigan Cent. R. Co., 133 Mich.
448, 103 Am. St. Rep. 458, 95 N.
W. 708. That the sublessor can-
not recover rent after his sur-
render of his leasehold interest is
decided in Grundin v. Carter, 99
Mass. 15; Pratt v. Richards
Jewelry Co., 69 Pa. 53; and as-
sumed in Buttner v. Kasser, 19
Cal. App. 755, 127 Pac. 811. But
as opposed to the sublessee's im-
munity from rent on the theory of
the merger of the subreversion,
see Hessel v. Johnson, 129 Pa.
173, 5 L.. R A. 851, 15 Am. St.
Rep. 716, 18 Atl. 754. See a ju-
dicious criticism of the doctrine
in an editorial note in 13 Colum-
bia Law Rev 245.
69c. Wolffe V. Wolff, 69 Ala.
549, 44 Am. Rep. 526; Respini v.
Porta, 89 Cal. 464, 26 Pac. 967, 23
Am. St. Rep. 488; Miller v. Ben-
ton, 55 Conn. 540, 13 Atl. 678;
Stobie V. Dills, 62 111. 432; Mar-
tin V. Stearns, 52 Iowa, 345, 35
Am. Rep. 278, 3 N. W. 92; Bick-
ford V. Kirwin, 30 Mont. 1, 75
Pac. 518; Prucha v. Coufal, 91
Neb. 724, 136 N. W. 1019; Under-
bill V. Collins, 132 N. Y. 269, 30
N. E. 576; Tyler Commercial Col-
lege V. Stapleton, 33 Okla. 305,
125 Pac. 443; Bowen v. Clarke,
22 Or. 566, 29 Am. St. Rep. 625,
30 Pac. 430; Reeves v. Comesky,
168 Pa. St. 571, 32 Atl. 96; Bar-
low V. Wainwright, 22 Vt. 88, 53
Am. Dec. 79.
In Clinton Amusement etc. Co.
V, Dranow, 88 N. J. L. 701, 96 Atl.
893, the highest court of the state
says that there was an abandon-
ment, not a surrender, by the
tenant. This refusal to recognize
that a surrender by operation of
law may result from an aban-
donment is caused apparently by
a failure to distinguish the tech-
nichal term "surrender," as ap-
plied to an estate, from its or-
dinary use as applied to a re-
linquishment of possession. The
common law does not recognize
abandonment as a method of
transferring or terminating
estates in land, and the statement
<^ 413] Eent. 1493
premises, or otherwise, can be regarded as in effect
accepting the possession at the hands of the tenant, so
as to effect a surrender by operation of law, as else-
where explained.^^*^ The landlord is, in such case,
under no obligation to lease the premises to another,
but may allow them to lie vacant, and yet recover the
installments of rent as they accrue.*^^^ The fact that the
landlord, upon the abandonment by the tenant, makes a
lease to another will, under some circumstances and
in some jurisdictions, effect a surrender, so as to relieve
the tenant from liability for rent thereafter accruing,*^*' ^
but in so far as it does not do this, the new letting is
regarded as on behalf of the former tenant, so as to
relieve him from the rent under the original lease to the
extent of the renf received under the new lease, and no
further.«9s
Forfeiture of leasehold. Upon the assertion
of a forfeiture by the landlord for breach of condition,'"
while he is entitled to rent which has already become
referred to seems unfortunate Broyles, — Tex. Civ. ^, 141 S.
The lower court was, it is sub- W. 283; Brown v. Hayes, 92 Wash,
mitted, correct in using the ex- 300, 159 Pac. 89. See editorial
pression surrender. note 13 Columbia Law Rev. 79.
69d. Post, § 431, note 96 et 69f. Post, § 431, note 8.
seq. 69g. Meyer & Co. v Smith, 33
69e. Bradbury V. Higgenson, Ark. 627; Marshall v. Grosse
162 Cal. 602, 123 Pac. 797; Board- Clothing Co., 184 111. 421, 75 Am.
man Realty Co. v. Carlin, 82 Conn. St. Rep. 181, 56 N. E. 807; Brown
413, 74 Atl. 682; Rau v. Baker, v. Cairns, 107 Iowa, 727, 77 N. W.
118 111. App. 150; Patterson v. 478; Oldewurtel v. Wiesenfeld, 97
Emerich, 21 Ind App. 614, 52 N. Md. 165, 99 Am. St. Rep. 427, 54
E. 1012; Leavitt v. Maykel, 210 Atl. 969; Alsup v Banks, 68 Miss.
Mass 55, 96 N. E. 51; Merrill v. 664, L. R. A. 598, 24 Am. St. Rep.
Willis. 51 Neb. 162, 70 N. W. 914; 294, 9 So. 895, 13; Conner v. War-
Whitcomb v. Brant, 90 N. J. L. ner, 52 Okla. 630, 152 Pac. 1116;
245, 100 Atl. 175; Underbill v. Bowen v. Clarke, 22 Ore. 566, 29
Collins, 132 N. Y. 269. 30 x\. E. Am. St. Rep. 625, 30 Pac. 430;
576; Nat. Exch. Bank v. Hahn, 33 Auer v. Penn, 99 Pa. 370, 44 Am.
Okla. 516, 126 Pac. 554; Milling v. Rep. 114.
Becker, 96 Pa. 182: Goldman v. 70. iiite, §§ 74-89.
1494 Real Peopertt. [§ 413
due,"^^ he cannot recover rent subsequently to become
due, or rather, there is no rent subsequently to become
dueJ-
Though there is no liability for rent falling due
after the enforcement of a forfeiture, a provision of the
instrument of lease continuing the liability of the lessee
in such case is usually regarded as effective. Thus it
has been decided that the parties may validly stipulate
that, upon the termination of the tenancy by re-entry
or equivalent action on the part of the landlord, he may
re-let to another at the risk of the tenant, the latter
remaining liable for any deficiency in the amount so
obtained as compared with that reserved by the original
lease. '^•'' And likewise, a provision that the lessee shall
remain liable for rent in spite of the forfeiture of his
term will enable the landlord to claim from the former
tenant any such deficiency in the amount obtained from
the new tenant.'^ To obtain the benefit of such a pro-
vision, the landlord must exercise reasonable diligence to
make a new^ lease at the best possible rent.'^ In the case
71. Hartshorne v. Watson. 4 107 Mich. 389, 65 N. W. 234;
Bing. N. Cas. 178; Mackubin v. Sharon v. American Fidelity Co.,
Whetcroft, 4 Har. & McH. (Md.) 172 Mo. App. 309, 157 S. W. 972;
135; Hinsdale v. White, 6 Hill. Hackett v. Richards, 13 N. Y.
(N. Y.) 507; McCready v. Linden- 138.
born. 172 N. Y. 400, 65 N. E. 208; 73. Way v. Reed, 6 Allen
Rubicum v. Williams, 1 Ashm. (Mass.) 364; Woodbury v. Spar-
(Pa.) 235; Galbraith v. Wood, 124 rell Print, 187 Mass. 426, 73 N.
Minn. 210, 144 N .W. 945; Youngs E. 547; Hall v. Gould, 13 N. Y.
Mining Co. v. Courtney, 219 Fed. 138; Baldwin v. Thibadeau, 28
868, 135 C. C. A. 538. Abb. N. Cases 14, 17 N. Y. Supp.
72. Oldershaw v. Holt, 12 532; Yuan Suey v. Fleshman, 65
Adol. & E. 590; Watson v. Mer- Ore. 606, 133 Pac. 803.
rill, 69 C. C. A. 185, 136 Fed. 359; 74. Grommes v. St. Paul Trust
Coburn v. Goodall, 72 Cal. 498, 1 Co., 147 111. 634, 37 Am. St. Rep.
Am. St. Rep. 75, 14 Pac. 190; 248, 35 N. E. 820. But in Pusey
Grommes v. St. Paul Trust Co., v. Sipps, 56 Pa. Super. Ct. 121,
H7 111. 634, 37 Am. St. Rep. 248, such a provision appears to be
35 N. E. 820; Hall v. Joseph regarded as nugatory.
Middleby, Jr., 197 Mass. 485, 83 75. International Trust Co. v.
N. E. 1114; Wreford v. Kenrick, Weeks, 203 U. S. 364, 51 L. Ed.
•^ 413:] Eent. 1495
of a stipulation of this character, continuiTig the lessee's
liability for the amoniit of the rent reserved in the lease,
or for any excess of that amount over that obtainable on
a new lease, the continuing liability is not, properly
speaking, for rent, since the tenancy to which the rent
appertained has ceased to exist. It is merely a contrac-
tual liability to the extent named." ^
As to whether, when rent is payable in advance,
the landlord is entitled to the full installment of rent in
spite of his re entry during the rent period, the cases
are not in accord. On principle, he having become
entitled to the installment on the rent day, his right
thereto w^ould properly seem to be unaffected by his
subsequent enforcement of a forfeiture.'^^^
Taking land for public use. Upon the taking
of the whole of the leased land for public use under
the power of eminent domain, the ownership of the land
thereby passing to the state or other public agency, the
liability for rent, it is usually agreed, comes to an
end."^^ Upon the taking of a part of the premises, ac-
224; Edmands v. Rust & Richard- ham v. Phillips, 1 E. D. Smith
son Drug Co., 191 Mass. 123, 77 (N. Y.) 416. See editorial note.
N. E. 713; Woodbury v. Sparrell 14 Columbia Law Rev. 354. Con-
Print, 198 Mass. 1, 84 N. E. 441. tra, Sutton v. Goodman, 194
76. See Hall v. Gould, 13 N. Y. Mass. 389, 80 N. E. 608; Hall v.
127; Grommes v. St. Paul Trust Middeby, 197 Mass. 485, 83 N. E.
Co., 147 111. 634, 37 Am. St. Rep. m^; Wreford v. Kenrick, 107
248, 35 N. E. 820; Woodbury v. Mich. 389, 65 N. W. 234.
Sparrell Print, 187 Mass. 426, 73 77. Corrigan v. Chicago, 144
N. E. 547; Stott Realty Co. v. 111. 537, 21 L. R. A. 212, 33, N. E.
United Amusement Co., 195 Mich. 746; O'Brien v. Ball, 119 Mass.
684, 162 N. W. 283. 28, 20 Am. Rep. 299; Lodge v.
76a. That he is entitled to the Martin, 31 App. Div. 13, 52 N.
full installment, see Ellis v. Y. Supp. 385; Barclay v. Pickler,
Rowbotham (1900), 1 Q. B. 740; 38 Mo. 143; Dyer v. Wightman,
Hepp Wall Paper Co. v. Deahl, 66 Pa. 425; McCardell v. Miller,
53 Colo. 274, 125 Pac. 491; Gal- 22 R. I. 96, 46 Atl. 184. Contra,
braith v. Wood, 124 Minn. 210, Foote v. City of Cincinnati. 11
144 N. W. 945; Healy v. McManus, Ohio, 408, 38 Am. Dec. 737; Foltz
23 How. Pr. (N. Y.) ; Cunning- v. Huntley, 7 Wend. (N. Y.) 210.
1496 Keal Peopeety. [§413
cording to some decisions, the liability for rent contin-
ues as before.'^^ But there are other decisions to the
effect that in such a case the rent is apportioned, the
tenant being thereafter liable only for an amount pro-
portioned to the value of the part of the premises not
taken. "^^ These latter decisions are, it is conceived en-
tirely in harmony with principle, and they unquestion-
abl}^ arrive at an equitable result. Under such a view,
the tenant is, in the condemnation proceeding, awarded
merely the amount, if any, by which the value of his
leasehold interest, tliat is, the excess in the rental value
over the rent reserved, is diminished owing to the
taking. Under the opposite view, the tenant is award-
ed the diminution in the rental value caused by the
taking, on the theory that lie will ultimately pay it over
to the landlord in the form of rent, which, as a matter
of fact, he may or may not do.
It would seem that when the ownership of either a
part or the whole of the leased premises, the "fee"
as it is usually referred to, is taken under the power
of eminent domain, the liability for rent is proportion-
ally reduced or extinguished, for the reason that the
leasehold interest in the land taken has come to an
end by reason of its merger in the reversion. When the
reversion and the leasehold are voluntarily transferred
to a single person by their respective owners, a merger
results, and the same thing occurs when they are so
transferred involuntarily, as by condemnation, the
fact that the transferee is the state or some other pub-
lic agency being immaterial. On the other hand, in
78. Stubbings v. Village of 597; Board of Levee Commission-
Evanston, 136 111. 37, 11 L. R. A. ers v. Johnson, 66 Miss. 248, 6
839, 29 Am. St. Rep. 300, 26 N. So.' 199; Cuthbert v. Kuhn, 3
E. 577; Parks v. City of Boston, Whart. (Pa.) 357, 31 Am. Dec.
15 Pick. (Mass.) 198; Olson Land 513; Uhler v. Cowen, 192 Pa. 443,
Co. V. Alki Park Co., 63 Wash. 44 Atl. 42 (semble). See Dyer
521, Ann. Cas. 1912D, 365, 115 v. Wightman, 66 Pa. 427; City of
Pac. 1083. Baltimore v. Latrobe, 101 Md.
79. Biddle v. Hussman, 23 Mo. 621, 61 Atl. 203.
§ 413] Bent. 1497
the case of the taking of, not the ownership or "fee,"
bnt merely an easement in the leased premises, the
question of the continuing liability for rent may be
most satisfactorily solved upon the theory that
the dispossession of the tenant by the public agency,
for the purpose of enjoying the easement, after
the latter 's acquisition thereof, constitutes an evic-
tion under paramount title. ^^ Such dispossession
is not, indeed, under a paramount title if by paramount
title we mean only a legal title outstanding at the time
of the lease, but there is no reason for so confining its
meaning. An eviction by one claiming by force of
the foreclosure of a mortgage prior to the lease is
no doubt an eviction under paramount title, regardless
of "whether the mortgagee had the legal title, and so
an eviction by one claiming by force of the assertion
of the paramount power of the state may well be re-
garded as an eviction under paramount title, or at
least so analogous thereto as to be governed by the
same principles.
Destruction of buildings. The well established
rule of the common law is that the liability of the
tenant for the rent called for by the lease is in no way
affected by the fact that buildings or improvements on
the land leased are wholly or partially destroyed by some
unforeseen casualty, however much this may decrease
the utility of the premises to the tenant. This rule finds
its most frequent application in the case of a total
or partial destruction by fire of buildings on the leased
premises, ^^ but it has also been applied when buildings
80. See Emmes v. Feeley, 132 81. Baker v. Holtzapffel, 4
Mass. 346; Devine v. Lord, 175 Taunt. 45; Cowell v. Lumley, 39
Mass. 384, 78 Am. St. Rep. 502, Cal. 151, 2 Am. Rep. 430; Buck-
56 N. E. 570; Rhode Island Hos- horn Plaster Co. v. Consolidated
pital Trust Co. v. Hayden, 20 R. Plaster Co., 47 Colo. 516, 108 Pac.
I. 544, 42 L. R. A. 107, 40 Atl. 27; Hunniston, Keeling & Co. v.
421. Wheeler, 175 111. 514, 67 Am. St.
1498
Real Pbopekty.
[§ 413
or other improvements on the premises were destroyed
by a flood,^^ a tempest,^^ a hostile army,^^ or a
mob.^^ Occasionally the common law rule has been
disapproved, as bearing with undue hardship on the
tenant.^*'
In case of the destruction, even though total, of
the bruildings on the leased land, there is not a total
destruction of the subject matter of the lease, and there
remains something out of which, in theory, the rent can
issue, however small may be the value of the land as
compared with the buildings destroyed. In the case,
on the other hand, of the lease of a building alone,
without the land,^" or of merely certain rooms in or
parts of a building,^^ if the building, or the part thereof
which is the subject of the lease, is destroyed, it 'has
Rep. 232, 51 N. E. 893; Fowler
V. Mott, 6 Mass. 63; Roberts v.
Lynn Ice Co., 187 Mass. 402, 73
N. E. 523; Bowen v. Clemens, 161
Mich. 493, 137 Am. St. Rep. 521,
126 N. W. 639: Lincoln Trust Co.
V. Nathan, 175 Mo. 32, 74 S. W.
1007; Fowler v. Payne, 49 Miss.
"2; Felix v. Griffiths, 56 Ohio St.
39, 45 N. E. 1092; Harrington v.
Watson, 11 Ore. 143, 50 Am. Rep.
465, 3 Pac. 173; Nashville, C. &
St. L. R. Co. V. Heikens, 112 Tenn.
378, 65 L. R. A. 298, 79 S. W.
1038; Arbenz v. Exley, Watkins
& Co., 52 W. Va. 476, 61 L. R. A.
957, 44 S. E. 149.
82. Smith v. Ankrim, 13 Serg.
& R. (Pa.) 39.
83. Peterson v. Edmonson, 5
Har. (Del.) 378.
84. Paradine v. Jane, Aleyn,
26; Robinson v. L'Engle, 13 Fla.
482; Pollard v. Shaffer, 1 Ball.
(Pa.) 210.
85. Wagner v. White, 4 Har. &
J. (Md.) 564.
86. See Whitaker v. Hawley,
25 Kan. 674, 37 Am. Rep. 277;
Wattles v'. South Omaha Ice &
Coal Co., 50 Neb. 251, 36 L. R. A.
424, 61 Am. St. Rep 554, 69 N.
W. 785; Coogan v. Parker, 2 S.
C. 255, 16 Am. Rep. 659. The
question of the equity of the rule
is discussed in 1 Tiffany, Land-
lord & Ten., § 182 m (1).
87. Ainsworth v. Ritt, 38 Cal.
89, 99 Am. Dec. 352; Schmidt v.
Pettit, 8 Dist. Col. (1 Mc Arth)
179.
88. McMillan v Solomon, 42
Ala. 356, 94 Am. Dec. 654; Wo-
mack V. McQuarry, 28 Ind. 103,
92 Am. Dec. 306; Stockwell v.
Hunter, 11 Mete. (Mass.) 448, 45
Am. Dec. 222; Graves v. Berdan,
26 N. Y. 498; Moving Picture
Co. v. Scottish etc. Ins. Co , 244
Pa. 358, 90 Atl. 642; Paxson
& Comfort Co. v Potter, 30 Pa.
Super Ct. 615; Porter v. Tull. 6
Wash. 408, 22 L. R. A. 613, 36
Am. St. Rep. 172, 33 Pac. 965.
§ 413] Eent. 1490
been nsiially held in this country that nothing- remains
from which the rent can issue, and that consequently the
liability therefor immediately ceases. In England the
same rule applies when the lease is of an apartment
in a building as when it is of the land itself,^^ and the
explanation would seem to be that there the lease of
an apartment is construed as including an interest in
the soil, from which the rent may be regarded as issuing
even after the destruction of the apartment.
The operation of the rule that the liability for rent
continues in spite of the partial or total destruction
of the buildings on the leased premises may be, and
frequently is, excluded by an express provision to the
contrary in the instrument of lease. Provisions of
this character have quite frequently been the subject
of judicial construction.^'^
In a number of jurisdictions statutes have been
adopted which have the effect of partly or wholly re-
lieving the tenant from rent in case of the destruction
of the buildings, or any part thereof, during the term.
For instance the Xew York statute'*^ provides that
"where any building which is leased or occupied is
destroyed or so injured by the elements, or any other
cause, as to be untenantable and unfit for occupancy,
and no express agreement to the contrary has been
made in writing, the lessee or occupant may, if the
destruction or injury occurred without his fault or
neglect, quit and surrender possession of the leasehold
premises; and he is not liable to pay to the lessor
or owner rent for the time subsequent to the sur-
render." These statutes have frequently been before
the courts for construction.^^
89. Izon V. Gorton, 5 Bing N. changing the language of the
Cas. 501; MarshaU v. Schofield, original act of 1860.
52 L. J. Q. B 58. See Selby v. 92. See cases cited 1 Tiffany,
Greaves, U R. 3 C. P. 954. Landlord & Tenant, § 182 m (8),
90. See 1 Tiffany. Landlord & and Harvey v. Weisbaum, 159 Cal.
Tenant, § 182 ni (6). 265, 33 L. R. A. (N. S.) 540, Ann..
91. Real Property Law, § 197, Cas. 1912B, 1115, 113 Pac. 656;
1500
Real Property.
[§ 413
Eviction by landlord. An eviction of the ten-
ant by the landlord, tlie nature of wliicli is elsewhere
discussed,^^ has the effect of suspending the tenant's
liability for rent thereafter to become due,^^ even
though the eviction is as to merely a part of the
premises, the tenant retaining possession of the bal-
ance.*^^ Though the courts frequently refer to an
eviction by the landlord as absolutely terminating the
liability for rent, this is not quite correct. It merely
suspends the liability for such time as the tenant re-
mains out of possession of the whole or a part of the
premises as a result of the eviction.^*' The tenant is
free from liability for the rent becoming due between
Spear v. Baker, 117 Md. 570, 84
Atl. 62; Fink v. Weinholzer, 109
Minn. 381, 123 N. W. 931; Lin-
'deke v. McArthur's Inc., 125 Minn.
1, Ann. Cas 1915C, 600, 145 N.
W 399; Carley v. Liberty Hat
Mfg. Co., 81 N. J. L. 502, 33 L.
R. A. (N. S.) 545. 79 Atl. 447;
Sayre v. Roseville Motor Co., 85
N. J. L. 10, 91 Atl. 596; Colonial
Land Co v. Asmus, 82 N. J. L.
521, 81 Atl. 827; Acme Ground
Rent Co. v. Werner, 151 Wis. 417,
139 N. W. 314.
93. A life, § 58(b).
• 94. Upton V. Townend, 17 C. B.
30; Engstrom v. Tyler, 46 Kan.
317, 26 Pac. 735; Royce v. Gug-
genheim, 106 Mass. 201, 8 Am.
Rep. 322; Osmers v. Furey, 32
Mont. 581, 81 Pac. 345; Bennett v.
Bittle, 4 Rawle (Pa.) 339; Poston
V. Jones, 37 N. C. (3 Ired. Eq.)
350, 38 Am. Dec. 683; Wolf v.
Eppenstein, 71 Ore. 1, 140 Pac.
751.
95. Co. Litt. 148b; Gilbert,
Rents, 173; Skaggs v. Emerson,
50 Cal. 3; Frepons v. Grostein, 12
Idaho, 671, 87 Pac. 1004; Smith
V. Wise, 58 111. 141; Smith v.
McEnany,. 170 Mass. 26, 64 Am.
St. R3p. 272, 48 N. E. 781; Kus-
chinsky v. Flanigan, 170 Mich.
245, 41 L. R. A. (N. S.) 430, Ann.
Cas. 1914A, 1228, 136 N. W. 362;
Christopher v. Austin, 11 N. Y.
216; Galleher v. O'Grady, — N.
H. — , 100 Atl. 549; Morris v.
Kettle, 57 N. J. L. 218, 30 Atl.
879; Linton v. Hart, 25 Pa. 193,
64 Am. Dec. 691; Edmison v.
Lowry, 3 S. D. 77, 17 L. R. A.
275, 44 Am. St. Rep. 774, 52 N. W.
583; Briggs v. Hall, 4 Leigh (Va.)
484, 26 Am. Dec. 326.. New York
Dry Goods Store v. Pabst Brewing
Co., 50 C. C. A. 295, 112 Fed.
381; Contra in Alabama, Warren
V. Wagner, 75 Ala. 188, 51 Am.
Rep. 446; Anderson v. Winton, 136
Ala. 422, 34 So. 962.
96. Co. Litt. 319a; Maekubin v.
Whetcraft, 4 Har. & McH. (Md.)
135; Smith v. McEnany, 170 Mass.
26, 64 Am. St. Rep. 272, 48 N. E.
781; Day v. Watson, 8 Mich. 535;
Tiley v. Moyers, 43 Pa. 404.
§ 41:^:] Eent. 1501
the time of the eviction of the tenant and his restoration
to possession, even though the landlord does not him-
self retain the possession.^"
As to the effect of an eviction during a rent period,
when the rent is payable in advance for that period, the
cases are not agreed, some being to the effect that
the tenant is,^^ and others to the effect that he is
not,^^ relieved in such case. It is somewhat difficult to
comprehend how, after the tenant has, by the terms
of the lease, become absolutely liable for an instalment
of rent, he can be relieved from such liability by a
subsequent occurrence. The fact of such advance pay-
ment could, however, it seems, be considered in as-
sessing damages on account of the eviction, whether the
claim for damages is asserted by way of set otf or
in a separate action.^ A mere trespass or entry by
the landlord, not amounting to an eviction,- does not
affect the liability for rent.'^
Eviction under paramount title. The liability
for the rent comes to an end upon the eviction of the
tenant from the entire premises by one having para-
mount title.* Even though this eviction is merely con-
97. Cibel v. Hill, 1 Leon. 110; 2. Ante, § 58(b).
Bennett v. Bittle, 4 Rawle (Pa.) 3. Roper v. Lloyd, T. Jones
339. 148; Hunt v. Cape, 1 Cowp. 242;
98. The Richmond v. Cake, 1 Lawrence v. French, 25 Wend.
App. Dist. Col. 447: Hall v. Joseph (N. Y.) 443; Bennett v. Bittle, 4
Middleby, 197 Mass. 485, 83 N. E. Rawle (Pa ) 339.
1114; Alger v. Kennedy, 49 Vt. 4. Cuthbertson v. Irving, 4
109, 24 Am. Rep. 117 (semhle). Hurlst. & X. 742; Wheelock v.
See Hyman v. Jockey Club etc. Warschauer, 34 Cal. 265; Stub-
Co., 9 Colo. App. 299, 48 Pac. 671. bings v. Evanstown, 136 111. 37, 11
99. Ryerse v. Lyons, 22 Up. L R. A. 839, 26 N. E. 577; George
Can. Q. B. 12; Giles v. Comstock, v. Putney, 58 Mass. (4 Cash.) 351,
4 N. Y. 270, 53 Am. Dec. 374; 50 Am. Dec. 788; Home Life Ins.
Hunter v. Reiley, 43 N. J. L. 480; Co. v. Sherman, 46 N. Y. 370;
Gugel V. Isaacs, 21 N. Y. App. Friend v. Oil Well Supply Co., 165
Div. 503, 48 N. Y. Supp. 594. Pa. 652, 30 Atl. 1134; Maxwell v.
1. Schienle v. Eckels, 227 Pa. Urban, 22 Tex. Civ. App. 565, 55
305, 76 Atl. 15. S. W 1124.
2 R. P.~2U
1502 Eeal Property. [^ 413
structive,^ and tlie tenant assumes, by attornment or
otherwise, the relation of tenant to the paramount
owner and as such becomes liable for rent, this liability
is under a different demise, and the rent is a different
rent, even though similar in amount.
An eviction under paramount title, like an eviction
by the landlord, does not affect the tenant's liability
for rent w^hich became due before the eviction oc-
curred, since this rent was fully earned.*^""^ This would
seem properly to be the case even though the rent is
payable in advance, and the eviction occurs before the
end of the period for which it is payable.^
If the eviction under paramount title is partial
merely, that is, from a part only of the leased premises,
the rent is apportioned and the tenant is relieved from
liability only for an amount proportioned to the value of
that part,^ the rule being different in this regard when
the partial eviction is under paramount title from
that which controls when it is by the landlord.
Untenantable condition of premises. Since, as
before stated, the landlord is under no obligation to
the tenant as regards the condition of the premises,
and their fitness for the latter 's use and occupation,
either at the time of the lease or subsequently thereto,^"
it would seem that the tenant should not be relieved
5. Ante, § 58(a). v. Coats, 77 Miss. 846, 50 L. R.
6-7. 2 Rolle, Abr., Rent (0.); A. Ill, 78 Am. St. Rep. 546, 28
Grobham v. Thornborough, Hob. So. 728; Christopher v. Austin.
82; Pepper v. Rowley, 73 111. 262; 11 n. Y. 216; Fifth Avenue Build-
Fitchburg Cotton Manufactory ing Co. v. Kernochan, 221 N. Y.
Corp. V. Melven, 15 Mass. 268; 370, 117 N. E. 579; Poston v,
Giles V. Comstock, 4 N. Y. 270, 53 Jones, 37 S. C. (2 Ired. Eq.) 350,
Am. Dec. 374. 38 Am. Dec. 683; Tunis v.
8. Giles V. Comstock, 4 N. Y. Grandy, 22 Gratt. (Va.) 109:
270, 53 Am. Dec. 374. But see Mayor of Swansea v. Thomas, 10
ante, this section, note 98. Q. B. Div. 48. But see Wilson
9. Halligan v. Wade, 21 111. v. Sale, 41 Pa. Super. 566.
470, 74 Am. Dec. 108; Fillebrown 10. Ante, § 51.
V. Hoar, 124 Mass. 580; Cheairs
§ 413:] Rent. 1503
from liabilit}' for rent in the absence of an express
stipulation or a statutory provision in that regard,
bj' reason of defects in the premises. And that this
is so is attested by the numerous decisions at common
law to the effect that even the destruction of the
buildings on the leased premises will not have that
etfect.^^ In New York, however, the tenant has been
regarded as relieved from liability by reason of the
"untenantable" condition of the premises, the statute
before referred to, providing that the tenant shall be
relieved from rent if the building is destroyed or so
injured by the elements as to be untenantable and unfit for
occupancy, being apparently extended to cases in which
the building becomes untenantable without being destroy-
ed or injured.^2 In Michigan the tenant has been relieved
from liability for rent on account of an untenantable
condition existing at the time of his entry under the
lease, apparently without reference to any statutes. ^^
Occasionally, particularly in New York, the existence
of an untenantable condition, which the landlord might
have removed by making repairs on the premises, but
which he fails to remove, has been referred to as
relieving the tenant from liability for rent, on the
theory that it constitutes an eviction by him,^"* and
there is a distinct tendency on the part of the courts,
because eviction, by the conmion law precedents, re-
lieves the tenant from rent, to apply the term to any
condition which is regarded as sufficient to relieve the
11. Ante, this section, notes 81- 1 Tiffany, Landlord & Ten., §
85. 182n(2).
12. Meserole v. Hoyt, 161 N. 13. Leonard v. Armstrong, 73
Y. 59, 55 N. E. 274; Vann v. Mich. 577, 41 N. W. 695; Petz v.
Rouse, 94 N. Y. 401. So in Voight Brewery Co., 116 Mich.
Minnesota under a substantially "^18, 72 Am. St. Rep. 531, 74 N.
similar statute. Bass v. Rollins, 63 W. 651.
Minn. 226, 65 N. W. 348; Dam- 14. Tallman v. Murphy, 120 N.
kroger v. Pearson, 74 Minn. 77, 76 Y. 345, 24 N. E. 716; Sully v.
N. W. 960; Kafka V. Davidson, 135 Schmitt, 147 N. Y. 248, 49 Am. St.
Minn. 389, 160 N. W. 1021. See Rep. 659, 41 N. E. 514.
1504 Real Peoperty. [<§ 413
tenant in this respect. ^'^'^ So an eviction has been said
to occur in the case of the landlord's failure to furnish
heat to the apartment leased, not only when the lease
contained a stipulation requiring the lessor to furnish
heat/*'' but also even in the absence of such stipulation,
when the landlord's control of the heating apparatus
and the custom of the community led the tenant to
anticipate that heat would be furnished.^"*^ The ap-
plication of the term, however, to the case of such a
mere omission on the part of the landlord is, it is
conceived, to be deprecated. Even conceding the de-
sirability of relieving the tenant from liability for
rent whenever the premises become untenantable, it is
undesirable to confuse the law of eviction for the
sake of a merelj^ nominal compliance with the prece-
dents of the common law.^^''
Breach of covenant. The question whether the
breach of a particular covenant or stipulation by the
landlord is a defense to the claim for rent, is properly
a question merely whether the stipulation for the pay-
ment of rent and that by the landlord are in the particu-
lar case to be construed as dependent or independent.
The question has more frequently arisen in connection
14a. So, in a recent case it Iowa, 742, 100 N. W. 851; Har-
was held that a refusal to al- mony Co. v. Ranch. 64 111. App.
low the tenant to obtain water, 386; McSorley v. Allen, 36 Pa.
in an emergency, from a neigh- Super. Ct. 271; Buchanan v.
boring building, constitUjted an Orange, 118 Va. 511, 88 S. E. 52.
eviction relieving him from rent. 14c. Tallman v. Murphy, 120
Boston Veterinary Hospital v. N. Y. 345, 24 N. E. 716; Jackson
Kiley, 219 Mass. 533, 107 N. E. v. Paterno, 58 Misc. 201, 108 N.
426. Y. Supp. 1073, 128 N. Y. App.
14b. Bass V. Rollins, 63 Minn. Div. 474, 112 N. Y. Supp. 924;
226, 65 N. W. 348; Minneapolis Pakas v. Rawle, 152 N. Y. Supp.
Co-operative Co. v. Williamson, 965; O'Hanlon v. Grubb, 38 App.
51 Minn. 53, 38 Am. St. Rep. 473, D. C. 1213, 37 L. R. A. (N. S.)
52 N. W. 986; Riley v. Pettis 1213. Compare Martens v. Sloane.
County, 96 Mo. 318, 9 S. W. 906; 132 N. Y. App. Div. 114, 116 N. Y.
Lawrence v. Burrell, 17 Abb. N. Supp. 512.
Cas. 312; Filkins v. Steele, 124 14d. Ante, § 58(b).
§ 41^]
Eent.
1505
with a stipulation for the making of repairs or improve-
ments by the landlord, and in the majority of cases
the stipulations have been regarded as independent.^^
But there are a number of decisions in which, without
any discussion of the matter on principle, the land-
lord's failure to comply with a stipulation for the
making of repairs or improvements during the tenancy
has been assumed to justify the tenant in abandoning
the premises and refusing to pay rent.^'^' Likewise it
Jias occasionally been decided that the landlord's failure
to comply with his contract to furnish heat or power
excuses the tenant from paying rent.'"
Illegality of business. If a lease is knowingly
made for the purpose of carrying on an illegal busi-
ness on the premises, such as prostitution, gambling.
15. Surplice v. Farnsworth, 7
Man. & G. 576; Central Appa-
lachian Co. V. Buchanan, 73 Fed.
1006; Young v. Berman, 96 Ark.
78, 34 L. R. A. (N. S.) 977, 131
S. W. 62; Lewis & Co. v. Chis-
holm, 68 Ga. 40; Arnold v. Krig-
baum, 169 Cal. 143, Ann. Cas.
1916D, 370, 146 Pac. 423; Rubens
V. Hill, 213 111. 523, 72 N. E. 1127;
Long V. Gieret, 57 Minn. 278, 59
N. W. 194; Warren v. Hodges,
137 Minn. 389, 163 N. W. 739;
Meredith Mechanic Ass'n v.
American Twist Drill Co., 67 N.
H. 450, 39 Ati. 330; Stewart v.
Childs Co., 86 N. J. L. 648, L. R.
A. 1915C, 649, 92 Atl. 392; Watters
V. Smaw, 32 N. C. (10 Ind. Law)
292; Partridge v. Dykins, 28
Okla. 54, 34 L. R. A. (N. S.) 984,
113 Pac. 928; Prescott v. Otter-
statter, 85 Pa. 534; Smith v.
Wiley, 60 Tenn. (1 Baxt.) 418;
Arbenz v. Exley, Watkins & Co.,
52 W. Va. 470, 61 L. R. A. 9r>7,
44 S. E. 149.
In Wise v. Sparks, — Ala. — ,
73 So. 394, whether a contract
to pay rent and one to make re-
pairs were dependent was re-
garded as a question for the
jury.
16. Bissell V. Lloyd, 100 111.
214; Marks v. Chapman, 135
Iowa, 320, 112 N. W. 817; Hart-
hill V. Cooke's Ex'r, 19 Ky. L.
Rep. 1524, 43 S. W. 705; Pierce
V. Joldersma, 91 Mich. 463, 51 N.
W. 1116; Nelson v. Eichoff, —
Okla. — , 158 Pac. 370 (semble) ;
Auer V. Vahl, 129 Wis. 635, 109
N. W. 529. See Taylor v. Finne-
gan ,189 Mass. 568, 2 L. R. A.
(N. S.) 973, 76 N. E. 203; Tif-
fany, Landlord & Ten. § 182r.
17. Bass V. Rollins, 63 Minn.
226, 65 N. W. 348; Filkins v.
Steele, 124 Iowa, 742, 100 N. W.
851; Rogers v. Babcock, 139
Mich. 94, 102 N. W. 636; Har-
mony Co. V. Raucli, 04 111. App.
1506
Keal Property.
[§ 4i;
or the sale of liquor in violation of law, there can be
no recovery of rent.^'*^
Not infrequently, in recent years, a question has
arisen as to the effect, upon the liability for rent,
of the fact that the lease was made to enable the
lessee to use the property for the sale of intoxicating
liquors, and such use became invalid, after the making
of the lease, by reason of the adoption of a pro-
hibitory law. The cases are ordinarily to the effect
that legislation of the character referred to did not
terminate the tenancy or relieve from liability for
the full amount of the stipulated rent,^'^'* the decision
in a number of these cases being based on the theory
that there w^as in the instrument of lease no reference
to the liquor business which called for construction
as excluding the sale on the premises of articles other
than liquors, and that consequently the lessee could
still utilize the premises. ^'*^ In a few cases a contrary
386; McSorley v. Allen, 36 Pa.
Super. Ct. 271. See ante, this
section, note 14a.
17a. Mitchell v. Campbell, 111
Miss. 806, 72 So. 231; Sherman
V. Wilder, 106 Mass. 537; Berni
V. Boyer, 90 Minn. 469, 97 N. W.
121. And cases cited, 1 Tiffany,
Landlord & Ten. § 40; editorial
note 26 Harv. Law Rev. 181.
17b. Lawrence v. White, 131 G-a.
840, 19 L. R. A. (N. S.) 966, 6:j
S. E. 631; Goodrum Tobacco Co.
V. Potts-Thompsou Liquor Co., 133
Ga. 776, 26 L. R. A. (N. S.) 498,
66 S. E. 1081; Barghman v. Port-
man, 12 Ky. L. Rep. 342, 14 8. W.
342; Kerley v. Mayer, 10 Misc
Rep. 718, 31 N. Y. Supp. 818,
judgment aff'd., 155 N. Y. 636, 49
N. E. 1099; Houston Ice & Brew-
ing Co. V. Keenan, 99 Tex. 79, 88
S. W. 197; Hecht v. Acme Coal
Co., 19 Wyo. 18, 113 Pae. 788, 117
Pac. 132, 34 L. R. A. (N. S.) 773,
A. & E. Ann. Cas. 1913E, 258.
See the excellent note on the sub-
ject, by Professor R. W. Aigler,
in 16 Mich. Law Rev. 534.
17c. O 'Byrne v. Henley, 161
Ala. 620, 23 L. R. A. (N. S.) 496,
50 So. 83; Harper v. Young, 123
Ark. 162, 184 S. W. 447; Shreve-
port Ice & Brew. Co. v. Mandel,
128 La. 314, 54 -So. 831 ; San Anto-
nio Co. V. Brents, 39 Tex. Civ.
App. 443, 88 S. W. 368; Warm
Springs Co. v. Salt Lake City, —
Utah, — , 165 Pac. 788; Hayton v.
Seattle Brewing & Malting Co., 66
Wash. 248, 37 L. R. A. (N. S.)
432, 119 Pac. 739.
So the premises being still
available for other purposes, the
fact that an ordinance rendered
them practically unavailable for
the purpose of a garage, for which
the lease was taken, was regarded
§ 414] Rent. 1507
view, that the change in the law relieved the lessee
from liability for rent, was asserted, ^"*^ this view being?
sometimes based, however, on the fact that by the
terms of the lease the tenant was precluded from mak-
ing any use of the premises except for the sale of
intoxicants. ^'^^ In so far as these latter cases assume
that a statement in the lease that the premises are
to be used for a particular purjiose precludes their use
for another purpose, they in effect regard such a
statement, presumably, as a covenant or condition
against such user, since otherwise the statement as
to user would seem to be inoperative.
The inability to obtain or renew a license for the
sale of intoxicating liquors has been regarded as no
defense to the claim for rent, although the lease was
taken for the purpose of conducting that particular
business on the premises. ^''^
§ 414. Actions for rent. When the person to whom
rent was payable had a freehold interest in the rent,
as no defense to the claim for " fibn theatre" supplies, a change
rent. Barnett v. Clark, 225 Mass. in the law prohibiting such busi-
185, 114 N. E. 317. ness relieved from liability for
17(1. Heart v. East Tennessee rent.
Brewing Co., 121 Tenn. 69, 19 L. 17c. Greil Bros. v. Mabson, 179
R. A. (N. S.) 964, 130 Am. St. Ala. 444, 43 L. R. A. (N. S.) 664,
Rep. 7.5.3, 113 S. W. 364; The 60, So. 876; Kahn v. Wilhelm. US
Stratford, Inc. v. Seattle Brewing Ark. 239, 177 S. W'. 403; Briins-
& Malting Co., 94 Wash. 125, L. wick-Balke-Collender Co. v. Seattle.
R. A. 1917C, 431, 162 Pac. 31; Brewing & Malting Co., 98 Wash.
In Koen v. Fairmont Brewing Co., 12, 167 Pac. 58.
69 W. Va. 94, 70 .9. E. 1098, it 17f. Standard Brewing Co. v.
was decided, that even if the adop- Weil, 129 Md. 487, 99 Atl. 661;
tion of prohibition was otherwise Gaston v. Gordon, 208 Mass. 265,
g^c^lnd for relief from rent, it was 94 N. E. 307; Teller v. Boyle, 132
not ground therefor if the tenant Pa. 56, 18 Atl. 1069; Miller v. Mc-
continued in possession. Guire, 18 R. I. 770, 30 Atl. 966;
In McCullongh Realty Co. v. Burgett v. Loeb, 43 Ind App. 657,
Laemmle Film Service, — Iowa, 88 N. E. 346.
— , 165 N. W. 33, it was held that A like view was adopted when
when there was a lease for the pur- the city was made "dry" by an
poKfi of carrying on a business in election held after the making of
150S
Eeal Propebty.
[^ 414
the nonpayment thereof on demand was considered,
at common law, a disseisin of the rent, and conse-
quently the real action of novel disseisin was the proper
form of proceeding by which to recover itJ^ By
statute, however, an exception to this rule was made in
favor of the executors and administrators of tenants
in fee of rents, who were authorized to sue in debt
for arrears of rent due to their decedents. ^^
Since the abolition of real actions, it has, in Eng-
land, been decided that an action of debt,^^ or its
equivalent, will lie in favor of the owmer of a rent
charge in fee, on the theory that such an action did
not lie at common law owing merely to the fact that
the higher remedy by real action existed during the
continuance of the freehold.-^
the lease, the local option law un-
der which the election was held be-
ing in fca-ce at the time of its
making. Houston Ice & Brewing
Co. V. Keenan; 99 Tex. 79, 88 S.
W. 197.
18. Litt. §§ 233-240.
19. 32 Hen. VIII. c. 37 (A. D.
1540); Co. Litt. 162a; Harrison,
Chief Eents, 180.
A tenant of land in fee simple
Avho has leased for years has
been held not to be a tenant in
fee of the rent reserved on the
lease for years, so that the stat-
ute will authorize an action of
debt for the rent by his execu-
tors. Prescott V. Boucher, 3
Barn. & Adol. 849.
20. Though the distinct forms
of action known as " debt, ' '
"covenant," and "assumpsit" no
longer exist in many states, they
represent, as connected with the
recovery of rent, distinctions of a
substantive character in regard to
the right and basis of recovery,
and consequently, even in ' ' code ' '
states, a knowledge of the particu-
lar circumstances appropriate to
the bringing of one rather than the
other of these actions is most de-
sirable.
21. Thomas v. Sylvester, L. K.
8 Q. B. 368, 2 Gray's Cas. 704;
Christie v. Barker, 53 Law J. Q.
B. 537; Searle v. Cooke, 43 Ch.
Div. 519. See In re Herbage
Kents [1896] 2 Ch. 811. The cor-
rectness of these decisions has,
however, been questioned, on the
ground that the duty of paying
rent was, at common law, imposed
on the land alone, — a ' ' real obliga-
tion," — and hence the mere aboli-
tion of real actions could not make
it a personal obligation. See the
learned review of the subject by T.
Cyprian Williams, Esq., 13 Law
Quart. Rev. 288, and the references
therem to Ognel's Case, 4 Coke,
48b.
§ 414] Rent. 1509
In the case of a rent for life, whether rent reserved
on a lease for life. or a rent charge granted for life, the
tenant of the land was regarded as personally liable
for the rent, and, while this personal liability could
not be enforced during the existence of the life interest
in the rent, because temporarily superseded by the
existence of the ''real" obligation on the part of the
land, upon the termination of such real obligation hy
the termination of the life interest, the tenant's per-
sonal obligation became enforceable by the owner of
the rent, or his personal representatives.^^
The right of one leasing for years to sue for
arrears of rent reserved in an action of debt was
recognized at an early date in the history of that
action,-^ and that the action is available for this pur-
pose has never been questioned.-^ The action w^ll
also lie for rent reserved upon a tenancy at wilL"^
Since the common-law action of debt is not founded
upon a contract, but is rather a remedy for the re-
covery of a specific sum in the possession of the
defendant belonging to the plaintitf,-*^ the tenant, in
order to be liable therein, need not have contracted
to pay the rent, but he is made liable as having taken
22. Ognel's Case, 4 Coke, 49a. 23. 2 Pollock & Maitland, Hist.
Gilbert, Eents, 98; Co. Litt. 162a, Eng. Law, 209.
Hargrave's note; 13 Law Quart. 24. Litt. §§ 58, 72; Co. Litt.
Re^- 291. 47b; Gilbert, Eents, 93; Trapnall
By statute (8 Anne, c. 14, y. Merrick, 21 Ark. 503; Rowland
§ 4, A. D. 1709), the right y. Coffin, 26 Mass. (9 Pick.) 52;
was given to bring an action of j^^ 29 Mass. (12 Pick.) 125; Out-
debt for the recovery of rent serv- ^^^^ ^ jy^y^^^ ^o ^d. 536, 20 Atl
ice reserved upon a lease for life, j.^. ^^^^^^^ ^, Whitney, 3
even during the lease, but it an- -r, . .^„ ,r ,,
,. , . u xu 1 Demo, 452; McEwen v. Joy, 7
plied in no ease where the rela- "^
.• ^* i„ 11 1 1 i. 4. T 1 Rich. Law (S. Car.) 33; Elder v.
tion of landlord and tenant did v ^ >
not exist. Webb v. Jiggs, 4 H^'^''^' ^^ ^enn. (2 Sneed) 81.
Maule & S. 113. There are similar ^5. Litt. § 72.
statutes in several states. See 1 26. Ames, Lectures o-n Legal
Tiffany, Landlord & Ten. p. 1819, History, 88.
note 7.
1510 Real Property. [§ 414
the profits due by the land, and, consequently, mere
privity of estate, as distinct from privity of contract,
is sufficient to sustain the action. Accordingly, a
transferee of the land, or of the particular estate
therein which owes the rent, is liable in debt to the
person entitled to the rent;-'^ and a transferee of the
reversion may recover therein against the lessee or an
assignee of the lessee,^^ as may a transferee of the
rent without the reversion.-''
Debt will, moreover, lie against the original lessee,
although the latter has assigned his lease, since the
lessee cannot substitute another in his place without
the landlord's assent. If, however, the landlord accept
the lessee's assignee as tenant, he cannot thereafter
bring debt against the original lessee.^'' If the lessee's
interest in a part of the premises is assigned to another
person, or in different parts to different persons, each
of such assignees is liable in debt, by reason of privity
of estate, for a proportional part of the rent.^^ The
assignee of the reversion cannot bring debt against the
original lessee after the latter 's assignment of the
term, since there is, in such case, neither privity of
contract nor of estate."^
27. Walker's Case, 3 Coke, 22a; rest v. Willard, 8 Cow. (N. Y.)
Thursby v. Plant, 1 Saund. 237, 206; Kendall v. Garland, 5 Cush.
note (1) ; Howland v. Coffin, 9 (Mass.) 74.
Pick. (Mass.) 52, 12 Pick. 125, 30. Walker's Case, 3 Coke, 22a;
McKeon v. Whitney, 3 Denio (N. Marsh v. Brace, Cro. Jac. 334;
Y.) 452. Mills V. Auriol, 1 H. Bl. 433, 440;
28. Walker's Case, 3 Coke, 22a; Wadham v. Marlowe, 8 East, 314,
Thnrsby v. Plant, 1 Saimd. 237, 1 note.
Lev. 259; Howland v. Coffin, 12 31. Gamon v. Vernon, 2 Lev.
Pick. (Maps.) 125; Patten v. 231; Curtis v. Spitty, 1 Bing. N.
Deshon, 1 Gray (Mass.) 325; Out- C 760; Harris v. Frank, 52 Miss,
toun V. Dulin, 72 Md. 536, 20 Atl. 155; St. Louis Public Schools v.
134. . Boatmen's Ins. & Trust Co., 5 Mo.
29. Williams v. Hayward, 1 El. App. 91. Compare Daraainville v.
& El. 1040; Allen v. Bryan, 5 Mann, 32 N. Y. 197.
Barn. & C. 512; Eyerson v. Quack- 32. Humble v. Glover, Cro. Eliz.
enbush, 26 N. J. Law, 236; Dema- 328; Walker's Case, 3 Coke. 22a.
§ 414] Kent. 1511.
An action of debt, if brought by or against one
not a party to the original lease, as in the case of
an action by the assignee of the lessor or against the
assignee of the lessee, being based on privity of estate,
has always been regarded as a ''local" action, which
must be brought in the county where the land lies;^'
while, if brought against the original lessee by the
lessor, being based on contract, it is "transitory," and
may be brought where the lessee may be found, or
where the contract was made.^*
Action of covenaiit. On the lessee's covenant
to pay the rent, usually contained in the instrument of
lease, an action of covenant may be brought at common
law,^^ and, in jurisdictions where such form of action
is abolished, an equivalent action to enforce the tenant's
liability on his covenant will lie.
To support the common law action of covenant
there must be a technical covenant by the lessee, that
is, the instrument must be sealed by him^^ since the
proper action on a written agreement to pay rent,
not under seal, is assumpsit.
An action by the lessor against the lessee on the
covenant to pay rent has been regarded as transitory,
as being based purely on contract,^" and the weight
33. Bord v. Cudmore, Cio. Car. Wall. (U. S.) 479, 20 L. Ed. 721;
183; Pine v, Leicester, Hob. 37; Greenleaf v. Allen, 127 Mass. 248;
Stevenson v. Lambard, 2 East, 575; Union Pac. Ey. Co. v. Chicago, R.
Whitaker v. Forbes, L. E. 10 C. L & P. Ey. Co., 164 111. 88. Eus-
P. 583; Bracket v. Alvord, 5 Cow. sell v. Fabyan, 28 N. H. 543, 61
(N. Y.) 18. Am. Dee. 629; Taylor v. I>e Bus,
34. Wey v. Tally, 6 Mod. 194; 31 Ohio St. 468.
Thursby v. Plant, 1 Wms. Saund. 36. Johnson v. Muzzy, 45 Vt.
(Ed. 1871) 306-308; Bracket v. Al- 419, 12 Am. Rep. 214; Him dale
vord, 5 Cow. (N. Y.) 18; Hen- v. Humphrey, 15 Conn. 433;
wood V. Cheeseman, 3 Serg. & E. Trustees of Hocking County v.
(Pa.) 502; Chitty, Pleading (7th Spencer, 7 Ohio (2nd pt.) 143.
K<1.) 282. 37. Bulwcr's Case, 7 Coke, 3a;
35. Thursby v. Plant, 1 Saund. Wey v. Yally, 6 Mod. 194; 1
237, 1 Lev. 259, 2 Gray's Cas. Chitty, Pleading (7th Ed.) 283.
671; Cross v. United Sitates, 14
1512 Real Pkopeety. [§ 414
of authority is to the same effect as regards an action
by the transferee of the reversion against the original
lessee, on the theory that the privity of contract is
transferred by the Statute 32 Hen. VIII. c. 34.2« On
the other hand, an action, whether by the original lessor
or his transferee, against the assignee of the lessee,
has been regarded as local, as being based on privity
of estate.^^
Assumpsit. An action of special assumpsit
may be maintained upon the lessee's express promise
to pay a certain sum as rent, provided such promise is
not under seal.^°
Under the code procedure. In a large number
of jurisdictions, the common law forms of action having
been abolished, the statements made above as to the
appropriate forms of action for the recover}- of rent,
and their distinguishing characteristics in this regard,
have no longer any practical application, though an
understanding thereof is desirable for a full compre-
hension of the common law view of rent. Likewise, in
most states, the common law distinctions, above re-
ferred to, betw-een local and transitory actions, have
been superseded by statutes directing where suit shall
be brought, as, for instance, by provisions that suit
38. Thiirsby v. Plant, 1 Saund. 40. .See eases cited in article hy
237 1 Lev. 259, and notes in 1 Prof. J. B. Ames, on Assumpsit
Wms. Saund. (Ed. 1871) 278, 307; for Use and Occupation, in 2
1 Cliitty, Pleading (7tli Ed.) 283. Harv. Law Rev. at pp. 378, 379.
39. Barker v. Darner, Garth. 182 ; Lectures on Legal History, pp.
Stevenson v. Lambard, 2 East, 575, 168, 169. And see, also, Hins-
2 Gray's Case. 679; Thursby v. dale v. Humphrey, 35 Conn. 443;
Plant, 1 Saund. 237; Bowdre v. Rubens v. Hill, 213 111. 523, 72
Hampton, 6 Rich. Law (S. C.) 208. N. E. 1127; Trustees of Hocking
See Salisbury v. Shirley, 66 Cal. County v. Spencer, 7 Ohio (2nd
22.3, 5 Pac. 104. Bonetti v. Treat, part) 149; Burnham v. Best, 49
91 Cal. 223, 14 L. R. A. 151, 27 Ky. (10 B. Men.) 227; Swem v.
Pa«. 612; Hiutze v. Thomas, 7 Sharretts, 48 Md. 408; Johnson v.
Md. 346, to the effect that the Muzzy, 45 Vt. 419. 12 Am. Rep.
action is based on privity of es- 214.
tate.
§ 414] Kent. 1513
shall be brought in the county of the defendant's resi-
dence, or where he may be served with process, and so
if the rent is payable in a certain county, the venue
may be determined by a provision that an action on a
contract shall be brought at the place of performance.
Remedy in equity. Equity will occasionally
take jurisdiction of a proceeding by the landlord for the
recovery of rent on the ground that the
remedy at law is inadequate. One case in which equity
thus takes jurisdiction is where the tenant has made a
sublease, and the tenant is insolvent, in which case
the court will direct the subtenant to pay the rent to
the chief landlord, on the theory that the rent should
be discharged out of the profits of the land.^^ This
theory, that the profits of the land are properly ap-
plicable to the pa^anent of rent, and that equity alone
can enforce such application, w^ould seem to be the
grounds on which the jurisdiction of equity should be
sought and sustained. It cannot, however, be said that
this reason for the assumption of jurisdiction by equity
clearly apjoears from the cases, such jurisdiction having'
ordinarily been sustained on the ground that the remedy
by distress was for some reason not available in the par-
ticular case.'*- That the amount of rent due and pay-
able by defendant is uncertain, either because he is
tenant of liut a part of the land subject to the lease*^
or for otlier reasons,^^ has also been regarded as
ground for the interposition of equity.
41. Goddaid v. Keate, 1 Vein. 598; Leeds v. Powell^ 1 Ves. Sr.
87; Haley v. Boston Belting Co., 171. See article by Prof. C. C.
140 Mass. 73, 2 N. E. 785; For- Langdell, 10 Harv. Law Rev. 93.
rest V. Durnell, 86 Tex. 647, 26 43. Swedesborough Church v.
S. W. 481; Otis v. Couway, 114 N. Shivers, 16 N. J. Eq. (1 C. E.
Y. 13, 20 N. E. 628; Kemp v. Sail Green) 453.
Antonio Catering Co., 118 Mo'. App. 44. Livingston v. Livingston, 4
134, 93 S. W. 342. .Johns Ch. (N. Y.) 287, 8 Am. Dec.
42. Collet v. Jacciiios, 1 Cli. Cuf. .^62; Van Rensselaer v. Layman, 39
120; Cocks V. Foley, 1 Vern. 359; Ilarv. Pr. (N, Y.) 9. See 2 Tif-
North V. Strafford, 3 P. Wras. iany. Landlord & Ten. § 292.
148; Benson v. Baldwin, 1 Atk.
1514 Real Peoperty. [^ 414
Action for use and occupation. At common
law, as above stated, assumpsit would lie upon a con-
tract not under seal for the payment of rent.^-^ And
it would also lie upon a contract to pay a reasonable
compensation for the use and occupation of land, pro-
vided no certain rent was reserved.^^ The statute
11 Geo. 2, c. 19, § 14, authorised a landlord, provided
the demise is not by deed, that is, is not under seal,
to recover a reasonable satisfaction in an action on
the case for the use and occupation of the land,
even though a certain rent is reser^-ed and there is
no proof of an express promise. A statute of a
similar character has been enacted in a number of
states,^" while in several, upon w^hat appears to be
a somewhat questionable reading of the earlier English
decisions, it has been decided that a landlord may
recover in such an action apart from a statute bearing
on the subject.^ ^
In this action, the technical name of which is
indebitatus assumpsit for use and occupation, rent
as such is not recovered, but merely a reasonable satis-
faction for the use of the premises; and the recovery
is based on the theory that a contract to pay such
reasonable satisfaction is to be inferred from the
circumstances in conformity with the intention of the
parties. If one person permits another to take and
retain possession of his land, it is, in the ordinary
case, a reasonable inference that the former expects
the latter to pay the reasonable value of such pos-
45. Ante, this ?ection, note 40. Marsh) 255, 23 Am. Dec. 404;
46. Ames, Assumpsit for Use Dwight v. Cutler, 3 Mich. 566, 64
and Occupation, 2 Harv. Law Eev. Am. Dec. 105; Heidelbach v. Slad-
379, Lectures on Legal History, er, 1 Handy (Ohio) 457; Eppes
169. V. Cole, 4 Hen. & M. (Va.) 161,
47. .See 2 Tiffany, Landlord & 4 Am. Dee. 512. That it does not
Ten. p. 1856. lie apart from statute, see Bell v.
48. Gunn v. Seovil, 4 Day Ellis' Heirs, 1 Stew. & P. (Ala.)
(Conn.) 228, 4 Am. Dec. 208; 294; Byrd v. Chase, 10 Ark. 602;
Crouch V. Briles, 30 Ky. (7 J. J. Long v. Bonner, 33 N. C. 27.
§ 414]
Rent.
1515
session or occupation, and that the latter expects to
pay, and the law recognizes the reasonableness of such
inference and enforces a contract so inferred. It is
in this sense only that, as is frequently stated, "the
law implies an obligation" to pay the value of the
use and occupation, the obligation not being im))lied
by law witliout reference to the presumed intentions
of the parties, as in the case of quasi contract.
To sustain an action for use and occupation the
relation of landlord and tenant nmst, ordinarily at
least, exist between the parties.^^ And consequently
it will not lie in favor of the owner of land against a
person who has entered thereon as a trespasser.^''
Occasionally a state statute has been construed as
authorizing such an action against a trespasser,^^ and
in several states, where the line between the different
forms of action has been obscured by statutory enact-
ments, a trespasser may, it seems, be made liable for
the rental value of land under allegations of use and
occupation by him.^- Such an action cannot however
49. Carpenter v. Uuited States,
84 U. S. (17 Wall) 489, 21 L. Ed.
680; Hamby v. Wall, 48 Ark. 135,
3, Am. St. Rep. 218, 2 S. W. 705;
Emergon v. Weeks, 58 Cal. 4.39;
Cambridge Lodge v. Routh, 163
Ind. 1, 71 N. E. 148; Jones v.
Donelly, 221 Mass. 21.3, 108 N. E.
106.3; Hogsott v. Ellis, 17 Midi.
351; McFar'an v. Watson, 3 N.
Y. 286; Aull Say. Bank v. AuU's
Adm'r, 80 Mo. 199; Rosenberg v.
Sprecher, 74 Neb. 176, 103 N. W.
1045; Clark v. Clark's Estate, 58
Vt. 527, 3 Atl. 508.
50. Pico V. Pheliin, 77 Cal. 86,
19 Pac. 186; Latlirop v. Standard
Oil Co.., 83 Ga. 307, 9 S. E. 1041;
Carrigg v. Meehanics' Bank of
Providence, 136 Iowa, 261, 111 N.
W. 329; Stockett v. Watkins'
Adm'rs, 2 Gill. & J. (Md.) 326,
20 Am. Dec. 438; Emery v. Emery,
87 Me. 281, 32 Atl. 900; Inman
V. Morris, 63 Miss. 347; Brolasky
V. Feiguson, 48 Pa. 434; Galves-
ton Wharf Co. v. Gulf C. & .S. F.
R. Co., 72 Tex. 454, 10 S. W. 537.
51. Dell V. Gardner, 25 Ark.
134; Missouri Pac. R. Co. v. Atchi-
son, 43 Kan. 529, 23 Pac. 610;
Newberg v. Cowan, 62 Miss. 570;
Earl V. Tyler, 36 Okla. 179, 128
Pac. 269.
52. Sec Lindt v. Lindcr, 117
Iowa, 110, 90 N. W. 596; Hidden
V. Jordan, 57 Cal. 184; Lamb v.
Lamb, 146 N. Y. 317, 41 N. E.
26; Long Bell Lumber Co. v.
Martin, 11 Okla. 192, 66 Pac. 328;
Olson v. Huntamer, 6 S. Dak. 364,
55 Am. St. Rep. 844, 61 N. W.
479.
1516 Real Property. [^ 415
be regarded as the equivalent of assumpsit for use
and occupation, but is more properly an action of
trespass, for mesne profits, according to the common
law nomenclature.
Forfeiture of leasehold. The landlord is, by
tlie express terms of the lease, frequently given the right
to re enter on the land, and thereby terminate the
tenant's interest, in case of nonpayment of rent,
such a stipulation rendering the tenant's estate one
on condition.^^ In a number of states, apart from any
such provision in the lease, the landlord is authorized
to resume possession upon the tenant's failure to pay
rent, such a provision being most frequently intro-
duced as a part of a statute authorizing summary
proceedings, and the non payment of rent being named
as one of the grounds for such a proceeding, while
in a few states the non payment of rent is made a
ground of forfeiture, without any reference to the
mode of proceeding by which the forfeiture may be
enforced.^^
§ 415. Distress for rent. As before stated, the
remedy by distress existed at common law in the
case of a rent service, unless the rent and the seignory or
reversion became separated, and also in the case of
a rent charge. -^^ In England the right of distress has
been given by statute in the case of all rents, and
consequently rents seek no longer exist there as a
distinct class. ^"^ The question whether this statute
is in force in any particular state has been seldom
passed upon,^''' this being a natural result of the in-
frequency of rents other than rents service reserved
on leases for years.
53. Ante, §§ 74-89. 57. In Illinois the English sta-
54. 2 Tiffany, Landlord & Ten. tute was, in a quite early deci-
§§ 193a, 274d, e. sion, recognized as in force (Penny
55. Ante, § 404. v. Little, 4 111. 301), while a dif-
56. 4 Geo. 2, c. 28, § 5 (A. D. ferent view was taken in New
1731).
§ 415] Eent. 1517
The remedy by distress lias not been favored in this
country, it being often regarded as affording opportunity
for injustice and oppression, and as unfairly dis-
criminating in favor of a particular class of creditors.
In some states it has been abolished by statute,^^ and
in some the courts have refused to recognize it as an
existing part of the law.^'' The remedy, under its
common-law name, still exists in a number of states;
but even in those states it is quite frequently modified by
statutory provisions, the general tendency of which
is more or less to withdraw the control of the pro-
ceedings from the ■ landlord and to vest it in public
officials, thus assimilating it to the process of attach-
ment.^^ ^ In New England the remedy of attachment
on mesne process has superseded that of distress.
Originally, the remedy by distress merely enabled
the landlord to seize the chattels on the land, and hold
them as a pledge for the payment of rent ;^° but by stat-
ute the landlord was authorized to sell the goods levied
upon, and to apply the proceeds on the rent,*^^ the
proceeding being thus changed from one to secure the
rent to one to collect it. Furthermore, the seizure of
the goods was formerly made by the landlord himself;
but at the present day, in most jurisdictions, the actual
levy is made by an officer of the law.'''^
It has been quite frequently stated that to sup-
port a distress the rent reserved must be certain or
York (Cornell v. Lamb, 2 Cow. 59a. See 2 Tiffany, Landlord &
^52). Ten. §§ 325-346. The gist of the
58. 2 Tiffany, Landlord & Ton. statutory provisions in the various
§ 325. states are conveniently presented
59. Folmar v. Copeland, 57 Ala. in a note in 2 Cornell Law Quart.
588; Herr v. Johnson, 11 Colo. Kev. at p. 357, by D. R. Perry,
393, 18 Pac. 342; Crocker v. Mann. Esq.
3 Mo. 472, 26 Am. Dec. 684; Bohni 60. Co. Litt. 47; :; P.hu-kst.
V. Dunphy, 1 Mont. 333; Deaver Comm. 614.
V. Rice, 20 N. Car. (4 Dev. & B. 61 2 Wm. & Mary c, 5 (A. D.
Law) 567, 34 Am. Dec. 69; Smith 1690).
V. Wheeler, 4 Okla. J38, 44 Pac. 62. 2 Tiffany, Landlnrd & Ten.
203. § 336.
2 R. P.— 21
1518 Real Property. ["§> 415
capable of reduction to a certaiiity,^^ and occasionally
reasons have been stated for this requirement, con-
nected with the method of proceeding at common law.®^
But, it is conceived, the true and sufficient ground for
the requirement of a certain rent as a basis for
distress is that, as before stated,*^^ there is no such
thing as a rent which is not certain or capable of re-
duction to a certainty. The statement of this require-
ment has occasionally been made as a justification for a
holding that there was no right of distress although
there was a right of recovery for use and occupation."®
The reasonable value of the use and occupation, though
recoverable by action, is not rent, and it is for this
reason, rather than because the amount is uncertain,
that it cannot be recovered by distress.
Who may distrain. Since the right of distress
is based upon the relation of tenure, a distress for rent
reserved on a lease can be made only by one having the
reversion, that is, the landlord.*^' Consequently, at
common law, a lessor who has disposed of the re-
version, retaining the rent, cannot distrain,*^^ though
he may do so, it seems, in some states, by force of a
statutory provision giving the right of distress to
persons entitled to rent, as he might in any state in
which the English statute,^ ^^ giving the right in the
ease of a rent seek, may be regarded as in force.
63. Eegnart v. Porter, 7 Bing. Fla. 611; Tiflft v. Verden, 19 Miss.
451; United States v. Williams, 2 (11 Smedes & M.) 153; Valentine
Cranch. C. C. 438, Fed. Cas. No. v. Jackson, 9 Wend. (N. Y.) 302;
16,710; Smoot v. Strauss, 21 Fla. Wells v. Hornish, 3 Pen. & W.
611; Marr v. Eay, 151 111. 799, (Pa.) 31.
26 L. K. A. 799, 37 N. E. 1029; 67. Sims v. Price, 123 Ga. 97,
Briscoe v. McElween, 43 Miss. 556; 50 S. E. 961; Marr v. Eay, 151
Smith V. Fyler, 2 Hill. (N. Y.) 111. 340, 26 L. R. A. 799, 37 N. E.
G48; Jocks v. Smith, 1 Bay, (S. 1029; Patty v. Bogle, 59 Miss.
Car.) 315. 491; Grier v. McAlarney, 148 Pa.
64. .See 2 Tiffany, Landlord & 587, 24 Atl. 119; McKenzie v.
Ten. § 327d. Eoper, 2 Strob (S. Car) 306.
65. Ante, § 411, note 99. 68. Litt. § 226.
66. Stayton v. Morris, 4 Har. 68a. Ante, this section, note 56.
(Dol.) 224; Smoot v. Strauss,' 21
§ 415] Eent. 1519
At common law the executor or administrator of
a deceased owner of a rent had no right to distrain
for rent which belonged to him as having accrued in the
lifetime of such owner, but by St. 32 Hen. VIII. c. 37, §
1, the right of distress was given to the executors and
administrators of tenants in fee, fee tail, or for
term of life.*'^ This statute has, however, been held to
give no right of distraint to the executor of a tenant
of land in fee who demised the land for years, re-
serving a rent,'^ and, on this construction of the statute,
an executor or administrator has, in jurisdictions where
there is no statute to the contrary, no right to collect
by distress rent due by a tenant of his decedent under
a lease for years. There are in a few states statutes
expressly giving the right of distress to the executors
or administrators of a deceased landlord, or giving
them the same remedies for the collection of rent as
the decedent had.
Chattels subject to distress. All chattels on
the demised premises are, generally speaking, liable to
be distrained upon, and the fact that they belong to a
person other than a party to the lease is immaterial.'^ ^
In some states, however, by statute, a stranger's prop-
erty is exempt from distress.^^ Things which are part
of the freehold, as fixtures, cannot be destrained upon."-'
Things which are liable to be injured by keeping,"^
and also, it seems, things not readily capable of
69. Co. Litt. lG2a. hanc, 4 ni. App. (4 Bradw.) 460;
70. Prescott v. Boucher, .3 Barn. Reynolds v. Shuler, 5 Cow. (N. Y.)
& Adol. 849; Jones v. .Tones, ?, 323. In Furbush v. Chappell, 105
Barn. & Adol. 967. Pa. St. 187, it is deciued that fix
71. Gilbert, Distresses, 3;{; tures removable by a tenant are
Bradley, Distresses, 73; 3 Blackst. distrainable, a view which ac-
Comm. 8. eords with the rule existing in that
72. 2 Tiffany, Landlord & Ten. state that removable fixtures arc
§ 32Sa(9). personalty. See ante, § 272(d).
73. Co. Litt. 47b; Gilbert, Dis- 74. 2 Blackst. Conim. 101; Mor-
tresses, 42; Turner v. Cameron, L. ley v. T'inchcomlio, 2 F.ych. lOl.
R. 5, Q. B. .30; Kassing v. Keo-
1520 Eeal Property. [^ 415
identification, such as loose pieces of money/ ^ are not
subject to distress. Things in a person's actual use or
possession, such as a horse which he is riding, or a
machine at wliich he is working, are also exempt, in
order that a breach of the peace may not be caused by
an attempt to distrain thereon.'^ Implements or uten-
sils of one's trade or profession, such as the axe of a
carpenter or the books of a scholar, are exempt, if
there be other things on the premises sufficient in
amount to satisfy the distress; and beasts used for
working a farm, and sheep thereon, are in the same
way conditionally exempt."^^
Goods which are in the custody of the law,' ^ as
when they have been levied upon under execution,'^^
or attachment,^'^ are not distrainable. The rigor of
this rule is, however, considerably alleviated, in Eng-
land and in some states, by reason of statutes securing
to the landlord, as against an execution levy, arrears
of rent to the amount of one year's rent.^^
The most important class of exemptions from dis-
tress consists of those in favor of trade or commerce,
being generally of those things belonging to a third
person which are temporarily on the leased premises
75. 1 Rolle's Abr. 667; Bac. 79. Herron v. Gill, 112 111. 247;
Abr., Distress (B). Craddock v. Riddlesbarger, 32 Ky.
76. Co. Litt. 47a; Simpson v. (2 Dana) 205; Van Horn -v.
Hartopp, Willes, 512; Beall v. Goken, 41 N. J. L. 499; SuUivau
Beck, 3 Cranch C. C. 666, Fed. v. Ellison, 20 S. C. 481.
Gas. No. 1,161; Couch v. Craw- 80. Thomson v. Baltimore &
ford, 10 Up. Can. C. P. 491. Susquehenna Steam Co., 33 Md.
77. Co. Litt. 47b; 3 Blackst. 312; Pierce v. Scott, 4 Watts &
Comm. 9; Jenner v. Yolland, 6 S. (Pa.) 344; Ayres v. Depras,
Price 3. - Speers Law (S. Car.) 367; Meyer
78. Co. Litt. 47b; Eaton v. v. Oliver, 61 Tex. 584.
Southby, Willes, 131; Bowser v. 81. The English statute is that
Scott, 8 Blackf. (Ind.) 86; Mul- of 8 Anne c. 14, § 1. The various
herin v. Porter, 1 Ga. App. 153, decisions upon this and the more or
58 S. E. 60; Karns v. McKinney, less similar state statutes are dis-
78 Pa. 387; Cooley v. Perry, 34 cussed in 1 Tiffany, Landlord &
S. C. 554, 13 S. E. 853; Meyer Ten. § 183.
V. Oliver, fil Tex. 584.
<^ 415J
Kent.
1521
for the purposes of the business there conducted, as
in the case of raw material left there to be worked up,^^
or goods placed there for purposes of sale*-* or for
safe keeping. ^^ For a similar reason, it seems, the
property of a guest at an inn are exempt.^^
Things not on the premises. Apart from stat-
ute,^^ only goods upon the demised premises can be
distrained for the rent therof, or, as it is frequently
expressed, the distress must be made upon the prem-
ises. ^^ In at least three states the law in this regard
has been changed by statutes allowing the goods of the
tenant to be distrained upon wherever located.^^
There are also, in a number of states, ^^ as in Eng-
82. Co. Litt. 47a; Bead v. Bnr-
ley, Cro. Eliz. 596; Knowles v.
Pierce, 5 Houst. (Del.) 178; Hos-
kins V. Paul, 9 N. J. L. 110, 17
Am. Dec. 455.
83. MeCreery v. Claflin, 37 Md
435, 11 Am. Rep. 542; Connali v
Hale, 23 WemL (N. Y.) 46
Brown v. Stackhouse, 155 Pa. 582
35 Am. St. Eep. 908, 26 Atl. 669
Walker v. Johnson, 4 McCord (S
Car.) 552.
84. Miles v. Furber, L. E. 8,
Q. B. 77; Beall v. Beck, 3 Cranch.
C. C. 666, Fed. Cas. No. 1,161;
Owen V. Boyle, 22 Me. 47; Brown
V. Sims, 17 Serg. & R. (Pa.) 138.
85. 3 Blackst. Comm. 8; Brad-
ley, Distresses, 144; Gorton v. Falk-
ner, 4 Term Rep. 567; Lyons v.
Elliott, 1 Q. B. Div. 210; Beall v.
Beck, 3 Cranch C. C. 666, Fed.
Cas. No. 1,161 ; Karns v. McKiu-
ney, 74 Pa. 389; Kellogg News-
paper Co. V. Peterson, 162 111. 158,
53 Am. St. Rep. 300, 44 N. K.
411; Elford v. Clark, 3 Brev. (S.
Car.) 88.
Ill owe jurisdiction tilings lie-
longing to a permnnent boardor at
an inn or boarding house have
been regarded as exempt. Riddle
V. Welden, 5 Whart. (Pa.) 9.
Contra, Trieber v. Knabe, 12 Md.
491, 71 Am. Dec. 607.
86. Except in the case of cattle
driven off the premises in the
sight of the landlord or his agent
when about to distrain. Co. Litt.
161a; 2 Co. Inst. 132; Bradby,
Distresses, 94. Or when there is
an express stipulation allowing dis-
tress on things belonging to the
lessee ofP the premises. In re
Roundwood Colliery Co. [1897] 1
Ch. 373; Dinger v. McAndrews, 10
Pa. Dist. R. 221.
87. Co. Litt. 161a; White v.
Hoeninghaus, 74 Md. 127, 21 Atl.
700; Crocker v. Mann, 3 Mo. 472,
26 Am. Dec. 684; Weiss v. John,
37 N. J. L. 93; Pemberton v. Van
Rensselaer, 1 Wend. (N. Y.) 307;
Clifford V. Beems, 3 Watts. "(Pa.)
246; Mosby v. Leeds, 3 Call (Va.)
439.
88. 2 Tiffany, Landlord & Ten-
ant, § 3281(4).
89. Id, § 3281(3).
1522 Real Property. [§ 416
land,^" statutes authorizing a distress on the tenant's
goods and chattels if removed by him from the premises
in order to prevent a distress thereon. And in several
states the same end of realizing from chattels re-
moved from the premises, or liable to be removed, is
secured by statutory provisions for attachment for
rent.91
§ 416. Lien for rent. In quite a number of states
there are statutes subjecting chattels or crops upon the
demised premises to a lien in favor of the landlord
for rent. Such a statutory lien on crops is not ordinarily
restricted to the crops of the tenant, but the crops of a
subtenant are subject thereto, while a lien given by
statute on things other than crops is usually restricted
to things belonging to the tenant himself. The statute
ordinarily names the method of enforcing the lien, as,
for instance, by attachment, or by statutory distress.
But even when the statute named another method of
enforcing the lien, a right to foreclose it by a proceeding
in equity has not infrequently been upheld.^^
Occasionally a lien is created upon crops or other
personal property upon the leased premises by ex-
press stipulation in the instrument of lease. A lien so
created resembles, more or less, a chattel mortgage,
and the courts are inclined to determine the rights of
the lessor thereunder from this point of view. It
is usually enforced by the decree of a court of equity
for the sale of the property subject to the lien.^^
90. St. 11 Geo. 2, c. 19, § 1. 92. See 2 Tiffany, Landlord &
91. 2 Tiffany, Landlord & Ten- Tenant, § 321.
aut, §§ 347-351. 93. Id., § 322.
CHAPTER XVTI.
PUBLIC RIGHTS.
§ 417. Highways.
418. Parks, squares, and commons.
419. Customary rights.
420. Rights of fishing.
421. Rights of navigation.
§ 417. Highways. We have before referred to
rights as to the use of the land of an individual for a
public or quasi public purpose, such as a right of way
for a railroad, for a drain, or for irrigation purposes.^
These, however, though they involve a public use
of the land, do not usually give a right of user to each
member of the public, while the rights which we will
now consider may ordinarily be exercised by any indi-
vidual member of the })ublic, or of that part of the
public resident in a particular locality.
The most usual instance of a right, in each member
of the public, thus to make use of another's land, exists
in the case of a ''highway" over private land; this
being, in effect, a right of way in gross, in favor of each
member of the public.
Though the existence of a highway does not, at
common law, affect the ownership of the soil, which
remains in the original owner, subject to use by tiie
public for highway i)urposes, under some state statutes
bearing upon the creation of highways, not only the
right of user but the ownership, or "fee," as it is gener-
ally termed, of the land, is in the public, or in the state
or municipality in trust for the public, in which case
the rights of user in the public are not rights as to the
1. See ante, § 365.
(1523)
.1524 Real Peopekty. [§ 417
user of another's land, but rather rio'hts incident to
ownership.^
Creation. A hi.a:hway mav be created either
(1) by "dedication" of the land by the owner to use
as a highway; (2) by prescription, — that is, user of
the land by the public for highway purposes for the
prescriptive period; or (3) by statutory proceedings,
involving, if necessary, the taking of the land upon the
payment of compensation under the power of eminent
domain.
Statutory proceedings are usually, in the case of
suburban highways, instituted by owners of land in-
terested in procuring the establishment of the highway;
and in cities, by the municipal authorities. All per-
sons interested in the land over or through which the
highway is to run are made parties to the proceeding;
and it is the ordinary practice, in one proceeding, to
determine the damages to be paid to the owaiers of the
land utilized for the highway, and to apportion among
the owners of the land to be benefitted thereby the cost
of the undertaking. The preliminary question whether
the proposed highway is necessary for the public wel-
fare may be determined by the legislature, or delegated
to the local authorities, or left to be adjudicated by the
tribunal which determines the question of damages.
The question whether, by proceedings of this char-
acter, the ownership or *'fee" of the land is vested in
the public, or merely a right of user, is to be determined
by the terms of the statute ; and unless this plainly con-
templates that the *'fee" shall be appropriated, it is
generally held that the public acquires a right of user
only.2
2. The use of the word "fee" tive of the Guration of a right,
in this connection to designate rather than of its character, and
the ownership, as distinct from its use erroneously implies that
the mere right of user, of the a mere right of user is necessarily
land, though sanctioned by almost less in duration than a fee.
universal practice, is unfortunate, 3. 1 Lewis, Eminent Domain,
since the word is properly descrip- § 449; Elliott, Roads & Streets,
§ -tl7]
Public Rights.
1525
The dedication of land to the i)ub]ic for nse as a
highway, and the creation of highways by prescription,
will be considered in another part of this work.^
Rights of owner of land. When the pul)lic
have a right of passage merely, the owner of the land
or "fee" therein may use it in any way not interfering
with its use by the public for passage.^ He is, in the
ordinary case, alone entitled to cut and appropriate the
trees,^ or herbage,''^ within the highway limits, and to
remove the soil or minerals under the highway.^ The
municipal authorities may, however, remove trees,
earth or stone for the purpose of opening or improving
the highway, and by some decisions they may utilize
materials so obtained for the purpose of repairing other
parts of the highway.^
The owner of the land may bring ejectment against
one unlawfully inclosing or encroaching within the
§ 254; 2 Dillon, Municipal Corpo-
rations, § 589.
4. See jwst, §§ 479, 514.
5. Elliott, Roads & Streets, §§
259, 876; 15 Am. & Eng. Enc. Law
(2nd Ed.) 416; Cloverdale Homes
V. Town of Cloverdale. 182 Ala.
419, 47 L. R. A. (N. S.) 607, 62
So. 712: Perley v. Chandler, 6
Mass. 454. 4 Am. Dec. 159; Glen-
coe V. Reed, 93 Minn. 518, 67 L.
R. A. 901, 101 N. W. 956; Daily
V. State, 51 Ohio St. 348, 46 Am.
St. Rep. 578; Lynch v. Town of
Northview, 73 W. Va. 609, 52 L.
R. A. (N. S.) 1038, 81 S. E. 83;i.
6. City of Atlanta v. Holliday.
96 Ga. 546, 23 S. E. 509; Crisraon
V. Deck, 84 Iowa, 344, 51 N. W. 55;
Bigelow V. Whitcomb, 72 N. H.
473, 65 L. R. A. 676, 57 Atl. 680;
Weller v. McCormick, 52 N. J. L.
470, 8 L. R. A. 798, 19 Atl. 1101;
Dailey v. State, 51 Ohio St. 348.
24 L. R. A. 724, 46 Am. St. Rep.
578, 37 N. E. 710; Sanderson v.
Haverstick, 8 Pa. St. 294; Tucker
V. Eldred, 6 R. I. 404.
7. Stackpole v. Healy, 16 Mass.
33, 8 Am. Dec. 121; Cole v. Drew,
44 Vt. 49, 8 Am. Rep. 363; People
V. Foss, 80 Mich. 559, 45 N. W.
480, 20 Am. St. Rep. 532; Wood-
ruff V. Neal, 28 Conn. 165; 1 Lewis,
Eminent Domain, S 853.
8. Town of Suffield v. Hatha-
way, 44 Conn. 521, 26 Am. Rep.
4S3; Aurora v. Fox, 78 Ind. 1;
Deaton v. Polk County, 9 Iowa,
594; West Covington v. Freking,
8 Bush (Ky.) 121; Glencoe v.
Reed, 93 Minn. 518, 67 L. R. A.
901, 10 N. W. 956; Higgins v.
Reynolds, 31 N. Y. 151.
9. See Dillon, Mun. Corp.. §
1149; 15 Am. & Eng. Encyc. Law
(2nd Ed.) 417, 418.
1526
Real. Pkopeety,
[§ 417
limits of the Mghway,^'^ or trespass against one ^ho
uses the land for a purpose not within the scope of its
use as a highway/*^-^ or who injures trees or herbage
thereon.^ ^
A city street is a highway, but a distinction is fre-
quently asserted between such a highway and an ordi-
nary rural highway, it being said that, while in the
latter case the public have merely a right of passage,
in the case of a city street there exists, besides this
right of passage in individual members of the public,
power in the municipal authorities to change the surface,
to cut down trees, place sewers and pipes beneath the
bed of the street, and in effect to exclude the owner
of the land from any use thereof other than that of
passage common to all individuals.^- The cases, how-
ever, which assert such a distinction do not usually de-
cide that a use can be made of a city street which
10. Goodtitle v. Alker, 1 Bur-
row, 133; Perry v. New Orleans,
M. & C. R. Co., 55 Ala. 413, 28
Am. Rep. 740; Postal Telegraph
Cable Co. v. Eaton, 170 111. 513,
39 L. R. A. 722, 62 Am. St. Rep.
390, 49 N. E. 365; Louisvnie, St.
L. & T. Ry. Co. V. Liebfried. 92
Ky. 407, 17 S. W. 870; Proprietors
of Locks & Canals on Merrimack
River v. Nashua & L. R. Co., 104
Mass. 1; Thomas v. Hunt, 134 Mo.
392, 32 L. R. A. 857, 35 S. W.
581; Jackson v. Hathaway, 15
Johns. (N. Y.) 447, 8 Am. Dec.
263; Becker v. Lebanon & M. St.
Ry. Co., 195 Pa. 502, 46 Atl. 1096;
Contra, Cincinnati v. White, 6 Pet.
(U. S.) 431, 8 L. Ed. 452; Becker
V. Lebanon & M. St. Ry. Co., 195
Pa. 502, 46 Atl. 1096. See the
suggestive discussion of the last
cited case in an editorial note in
14 Harv. Law Rev. at p. 291.
10a. Lade v. Shepherd, 2
Strange 1004; Burr v. Stevens, 90
Me. 500, 38 AtL 547; Thomas v.
Ford, 63 Md. 346, 52 Am. Rep.
513; Lewis v. Jones, 1 Pa. St. 336,
44 Am. Dec. 138.
11. Barclay v. Howell's Lessee,
6 Pet. (U. S.) 498, 8 L. Ed. 477;
Woodruff v. Neal, 28 Conn. 165;
Blis V. Hall, 99 Mass. 597; Bolen-
der V. Southern Michigan Tel. Co.,
182 Mich. 646, 148 N. W. 697;
Gambel v Pettijohn. 116 Mo. 375,
22 S. W. 783; Andrews v. You-
mans, 78 Wis. 56. 47 N. W. 304.
12. See Western Railway of
Alabama v. Alabama Grand Trunk
R. Co., 96 Ala. 272, 17 L. R. A.
474, 11 So. 483; Montgomery v.
Santa Ana Westminster Ry. Co.
104 Cal. 186, 25 L. R. A. 654, 43
Am. St. Rep. 89, 37 Pac. 786;
Kincaid v. Indianapolis, etc.. Gas
Co., 124 Ind. 577, 8 L. R. A. 602.
19 Am. St. Rep. 113, 24 N. E.
1066; Chesapeake & Pot. Telephone
§ 417] Public Rights. 1527
cannot be made of a suburban highway ;^^ and the
sounder view seems to be that a suburban highway,
like a city street, is subject to all highway uses and im-
provements which may be necessary, among which are
to be included its use for the supply of water, light, or
drainage, when these are rendered necessary by the
density of population, and that the fact that the high-
way is within the limits of a city is immaterial, except
as this is usually coincident with the necessity for such
uso.^^
Additional servitude. When the ownership of
the land is not acquired by the public, but merely a
right of passage, if the land within the highway limits
is afterwards used for a purpose, even though of a
public nature, which is not within the scope of the high-
way use for which the land was dedicated or appropri-
ated, it is considered that the land is subjected to an
additional burden or *' servitude," entitling the owner
to compensation as for a new taking of x>roperty. So it
has been held that the use of the highway for a steam
Co. V. Mackenzie, 74 Md. 36, 28 14. See Floyd County v. Rome
Am. St. Rep. 219, 21 Atl. 690; Van St. R. Co., 77 Ga. 614, 3 S. E. 3;
Brunt V. Town of Flatbush, 128 De Kalb Co. Telephone Co. v. Dut-
N. Y. 50, 27 N. E. 973; McDevitt to^n, 228 111. 178, 10 L. R. A. (N.
V. Peoples' Nat. Gas Co., 160 Pa. S.) 1057, 81 N. E. 838; Lake
St. 367, 28 Atl. 948; Duquesne Shore M. S. R. Co. v. Whiting,
Light Co. V. Duff, 251 Pa. 607, 161 Ind. 76, 67 N. E. 933; Cater
97 Atl. 82; Elliott, Roads & v. Northwestern Tel. Exch. Co., 60
Streets, § 482 et seq. Minn. 539, 28 L. R. A. 310, 51 Am.
13, "The only court in which it St. Rep. 543, 63 N. W. Ill; Eels
has been unequivocally adjudicated v. American Telephone & Tele-
that a certain use was legitimate graph Co., 143 N. Y. 133, 25 L. R.
in the case of city streets, anQ not A. 640, 38 N. E. 202; Palmer v.
legitimate in the case of country Larchmont Electric Co., 158 N. Y.
highways, is that of Pennsylvania, 231, 43 L. R. A. 672, 52 N. E.
in which it has been held that an 1092; Callen v. Columbus Edison
electric passenger railway is a legi- Elec. Light Co. 66 Ohio St. 16(i, OS
timate use of a city or village L. R. A. 782, 64 N. E. 141; Hu<l-
street, but not of a country road." dleston v. Eugene, 34 Ore. 343, 43
1 Lewis, Eminent Domain, § 118. L. R. A. 444, 55 Pac. 868; 1 Lewis,
Eminent Domain, § 118,
1528
Keal Propeety.
[§ 417
railway, carrying freight as well as passengers, is not
an ordinary highway use, and that the owner of the fee
is consequently entitled to compensation therefor.^^
In New York a like view is taken as to a street rail-
way,^*^ but the great weight of authority is to the effect
that a passenger street railway operated on the surface
of the ground is not an additional servitude.^' In some
15. Western Kailway of Ala-
bama V. Alabama Grand Trunk E.
Co., 96 Ala. 272, 17 L. K. A. 474,
11 So. 483; Denver & Rio Grande
R. Co. V. Stinemeyer, 5& Colo. 396,
148 Pac. 860; Imlay v. Union
Branch R. Co., 26 Conn. 249; Flor-
ida Southern Ry. Co. v. Brown, 23
Fla. 104, 1 So. 512; Harrold Bros.
V. Americus, 142 Ga. 686, 83 S. E.
5.34; Indianapolis, B. & W. R. Co.
V. Hartley, 67 111. 439; Mitchell v.
Chicago B. & Q. Ry. Co., 265 III.
300, 106 N. E. 833; Cox v. Louis-
ville, N. A. & C. R. Co., 48 Ind.
178; Kucheman v. Chicago C. & D.
R. Co., 46 Iowa, 366; Phipps v.
Western M. R. Co., 66 Md. 319, 7
Atl. 556; Grand Rapids & I. R.
Co. V. Heisel, 38 Mich. 62; Wil-
liams V. New York Cent. R. Co.,
16 N. Y. 97; White v. North-
western North Carolina R. Co., 113
N. C. 610, 22 L. R, A. 627, 37 Am.
St. Rep. 638, 18 S. E. 330; Illinois
Cent. R. Co. v. Hudson, 136 Tenn.
1, 188 S. W. 589; 589 ("dummy"
line). Contra, Montgomery v.
Santa Ana Westminster Ry. Co.,
104 Cal. 186, 25 L. R. A. 654, 43
Am. St. Rep. 89, 37 Pac. 786;
Moore Mfg. Co. v. Springfield
Southwestern Ry. Co.., 256 Mo. 167,
165 S. W. 305.'
The erection of poles and trolley
wires to furnish electricity for the
running of cars on streets other
than that on which the erections
are made was held not to create
a new servitude. Brandt v. Spok-
ane & I. E. R. Co., 78 Wash. 214,
52 L. R. A. (N. S.) 760, 138
Pac. 871.
16. Craig v. Rochester City & B.
R. Co., 39 N. Y, 404; Peck v.
Schenectady Ry. Co., 170 N. Y.
298, 63 N. E. 357; Paige v.
Schenectady, 178 N. Y. 102, 70 N.
E. 213. See, for a discussion of
this matter, 1 Lewis, Eminent Do-
main, §§ 158-164; editorial note,
8 Columbia Law Rev. 575.
17. Birmingham Traction Co. v.
Birmingham Ry. & Electric Co., 110
Ala. 137, 43 L. R. A. 233, 24 So.
502; Finch v. Riverside & A. Ry.
Co., 87 Cal. 597, 25 Pac. 765; El-
liott V. Fair Haven & W. R. Co.,
32 Conn. 579; Randall v. Jackson-
ville St. R. Co., 19 Fla. 409; Floyd
County V. Rome St. R. Co., 77 Ga.
614, 3 S. E. 3; Chicago, B. & Q.
R. Co. V. West Chicago Street R.
Co., 156 111. 255, 29 L. R. A. 485,
40 N. E. 1008; Indiana Union
Traction Co. v. Gough, 54 Ind.
App. 438, 102 N. E. 453; Hodges
V. Baltimore Union Passenger Ry.
Co., 58 Md. 603; Attorney Gen-
eral V. Metropolitan E. Co., 125
Mass. 515; Newell v. Minneapolis,
L. & M. Ry. Co., 35 Minn. 112,
59 Am. Rep. 303, 27 N, W. 839;
Williams v. Meridian Light & Ry.
§ 417]
Public Rights.
1529
states a telegraph or telephone line is regarded as an
additional burden on the fee/^ and in others a contrary
view is taken. ^^ The use of a street or highway for
sewers,^*^ gas pipes,^^ or water pipes,-- is a legitimate
Co., 110 Miss. 174, 69 So. 596;
Hincbman v. Paterson Horse K.
Co., 17 N. J. Eq. 75; Texas & P.
Ry. Co. V. Eosedale St. R. Co.., 64
Tex. 80.
A like view has beeu taken even
when the street railway was used
in part for transporting freight.
Percy v. Lewiston, A. & W. St.
Ry., 113 Me. 106, 93 Atl. 43.
A subway utilized for travel has
likewise been regarded as not con-
stituting an additional servitude.
Sears v. Crocker, 184 Mas?. 586,
100 Am. St. Rep. 577, 69 N. E.
327; Peabody v. Boston, 220 Mass.
376, 107 N. E. 952.
18. Pacific Postal Telegraph &
Cable Co. v. Irvine, 49 Fed. 113;
De Kalb County Telephone Co. v.
Dutton, 228 111. 178, 10 L. R. A.
(N. S.) 1057, 81 N. E. 838;
Chesapeake & P. Tel. Co., of Balti-
more V. Mackenzie, 74 Md. 36, 28
Am. St. Rep. 219, 21 Atl. 690;
Stowers v. Postal Telegraph-Cable
Co., 68 Miss. 559, 12 L. R. A. 864,
24 Am. St. Rep. 290, 9 So. ,'556;
Eronson v. Albion Telephone Co.,
67 Neb. 1111, 60 L. E. A. 426,
93 N. W. 201; Eels v. American
Telephone & Telegraph Co., 143 N.
Y. 133, 25 L. R. A. 640, 38 N.
E, 202; Western Union Telegraph
Co. V. Williams, 86 Va. 696, 8 L.
R. A. 429, 19 Am. 84:. Rep. 908,
11 S. E. 106; Krueger v. Wiscon-
sin Tel. Co. lOG Wis. 96, 50 L. R.
A. 298, 81 N. W. 1041.
19. Hobbs v. T^ong Distance
Tel. & Tel. Co., 147 Ala. 393, 7 L.
R. A. (N. S.) 87, 41 So. 1003; Ma-
gee V. Overshlner, 150 Ind. 127,
40 L. R. A. 370, 65 Am. St. Rep.
358, 49 N. E. 951; Pierce v. Drew,
136 Mass. 75, 49 Am. Rep. 7; Peo-
ple V. Eaton, 100 Mich. 208, 24 L.
R. A. 721, 59 N. W. 145; Julia
Building Ass'u. v. Bell Telephone
Co., 88 Mo. 258, 57 Am. Rep. 398;
Cater v. Northwestern Telephone
Exchange Co., 60 Minn. 539, 28 L.
R. A. 310, 51 Am. St. Rep. 543, 63
N. W. Ill; Hershfield v. Rocky
Mountain Bell Telephone Co., 12
Mont. 102, 29 Pac. 883; Carpenter
V. Lancaster, 250 Pa. 541, 95 Atl.
702.
20. Cone v. City of Hartford,
28 Conn. 363; City of Boston v.
Richardson, 13 Allen (Mass.) 146;
Stondinger v. City of Newark, 28
N. J. Eq. 187, affirmed, 28 N. J.
Eq. 446; In re City of Yonkers,
117 N. Y. 564, 23 N. E. 661; El-
ster V. Springfield, 49 Ohio St. 82,
30 N. E. 274; Carpenter v. Lancas-
ter, 250 Pa. 541, 95 Atl. 702; 1
Lewis Eminent Domain, § 183.
21. Dillon, Mun. Corp., 8 1213;
McDevitt V. Peoples Nat. Gas Co.,
160 Pa. 367, 28 Atl. 948; Cheney v.
Barker, 198 Mass. 356, 16 L. R. A.
(N. S.) 436, 84 N. E. 492.
22. Provost V. New Chester
Water Co., 162 Pa. St. 275, 29 Atl.
914; Wood v. National Water
Works Co., :'.3 Kan. 590, 7 Pac.
233; City of Quincy v. Bull, 106
111. 337; Bishop v. North Adams
Fire District, 1C7 Mass. 364, 45 N.
E. 925.
1530
Real Pkoperty.
[§ 417
use, for which the owner 'of the fee cannot recover
compensation, unless it is not for the benefit of the com-
munity itself, or the members thereof, but is for the
benefit of another municipality, or of individuals alone.-"'
The maintenance of a market on a highway constitutes
an additional servitude,-* as does the erection of a
stand pipe to supply water to the community;-^ but a
well or underground cistern has been regarded as
maintainable in a street for the purpose of furnishing
water for street sprinkling purposes, this being a street
use.2*^
Some of the later cases are to the effect that the
ownership of the "fee" does not involve rights of such
practical value as to authorize compensation in case
of an additional use of the surface of the land,^" and
23. Kincaid v. Indianapolis
Natural Gas Co., 124 Ind. 577, 8
L. R. A. 602, 19 Am. St. Rep. 113,
24 N. E. 1066; Ward v. Triple
State Nat. Gas Oil Co., 115 Ky.
723, 74 S. W. 709; Baltimore
County Water & Elec. Co. v. Du-
breuil, 105 Md. 424, 66 Atl. 439;
Bloomfield & R. Natural Gas Light
Co. V. Calkins, 62 N. Y. 386; Van
Brunt V. Town of Flatbush, 128
N. Y. 50, 27 N. E. 973; Sterling's
Appeal, 111 Pa. St. 35, 56 Am.
Rep. 246, 2 Atl. 105; Contra, Che-
ney V. Barker, 198 Mass. 356, 16
L. R. A. (N. S.) 436, 84 N. E. 492.
24. Lutterloh v. Town of Ce-
dar Keys, 15 Fla, 306; Schopp v.
City of St. Louis. 117 Mo. 131, 20
L. R. A. 783, 22 S. W. 898; State
V. Laverack. 34 N. J. L. 201.
25. Barrows v. City of Syca-
more, 150 111. 588, 25 L. R. A.
535, 41 Am. St. Rep. 400, 37 N. E.
1096. And so as to a water tank
above the surface, Morrison v.
Hinkson, 87 111. 587, Davis v. Ap-
lepton, 109 Wis. 580, 85 N. W.
515.
26. West V. Bancroft, 32 Vt.
367. Contra, Dubuque v. Mahon-
ey, 9 Iowa 450, criticized Dillon,
Mun. Corp. § 1156.
27. Barney v. Keokuk, 94 U. S.
324, 24 L. Ed. 224; Theobald v.
Louisville, N. O. & T. Ry. Co., 66
Miss. 279, 4 L. R. A. 735, 14 Am.
St Rep. 564, 6 So. 230; Donahue
V. Keystone Gas Co., 181 N. Y.
313, 70 L. R. A. 761, 106 Am. St.
Rep. 549, 73 N. E. 1108; White
V. Northwestern North Carolina
R. Co., 113 N. C. 610, 22 L. R. A.
627, 37 Am. St. Rep. 639, 18 S. E.
630;Blackwell, E. & S. W. R. Co.
V. Gist, 18 Okla. 516, 90 Pac. 889;
McQuaid v. Portland & V. Ry. Co.
18 Ore. 237, 22 Pac. 899; Gulf, C.
& S. F. R. Co. V. Eddins. 60 Tex.
656: Dooley Block v. Salt Lake
Rapid Transit Co., 9 Utah 31, 33
Pac. 229.
§ 417] Public Rights. 1531
the text l)ooks usually uphold this view,-* which has
gained strength with the development of the modern
doctrine, referred to in the next paragraph, that the
abutting owner is, as such, entitled to compensation for
interference with his rights of light, air, and access
caused by the additional use of the highway,— a doctrine
which renders it unnecessary to base his right to
compensation on his possible ownership of the fee.
Rights of abutting owners. The owner of land
abutting on a highway has sometimes been regarded as
having no right to compensation by reason of a new
use of the highway, unless he can, as above indicated,
recover compensation as owner of the _ ' ' fee ' ' in the
highway, the result being to exclude any recovery by
him if the fee is in the public.-^ The view is, however,
quite usually taken, at the present day, that an abutting
owner, as such, has rights of access to his premises by
means of the highway, and also rights to enjoy light and
air from the open space above the highway, which can-
not be destroyed or impaired, to his detriment, except
in the use and improvement of the highway for high-
way purposes, without making comi)ensation to him."'"
28. 1 Lewis, Eminent Domain, 556, 41 Am. St. Rep. 311, 37 N. E.
S 128; Randolph, Eminent Do- 850, 24 L. R. A. 406; Barrows v.
main, § 415; Dillon, Mun. Corp. City of Sycamore, 150 111. 588. 25
S§ 1136, 1279. L. R. A. 535, 41 Am. St. Rep. 400,
29. Florida Southern Ry. Co. 37 N. E. 1096; Decker v. Evans-
V. Brown, 23 Fla. 104, 1 So. 512: ville. S. & N. Ry. Co., 133 Ind.
Moses V. Pittsburgh, Ft. W. & C 493, 33 N. E. 349; Chesapeake &
R. Co., 21 111. 516; Davis v. C. & P. Tel. Co. of Baltimore v. Mack-
N. W. Ry. Co., 46 Iowa 389; At- enzie, 74 Md. 36, 28 Am. St. Rep.
chison & N. R. Co. v. Garside, 10 219, 21 Atl. 690; Spencer v. Met-
Kan. 552;Fobes v. Rome, W. & O. ropolitan St. Ry. Co., 120 Mo. 154.
R. Co., 121 N. Y. 505, 8 L. R. A. 22 L. R. A. 668, 23 S. W. 126;
453, 24 N. E. 919; East End St. Barnett v. Johnson, 15 N. J. Eq.
R. Co. V. Doyle, 88 Tenn. 747. 9 481; White v. Northwestern
L. R. A. 100, 13 S. W. 936. See North Carolina R. Co., 113 N. C.
Lewis, Eminent Domain, § 156, 610, 22 L. R. A. 627, 37 Am. St.
note 31. Rep. 639, 18 S. E. 330; McQuaid
30. Field v. Barling. 149 111. v. Portland & V. Ry. Co., 18 Ore.
1532
Real Peopeety.
[M17
These rights are frequently spoken of as "easements"
in the highway, or in the land used for the highway,
and they are in some respects analogous to easements. ^^
It is on the theory that such rights are impaired
that an abutting owner has been held to be entitled to
compensation on account of the construction and main-
tenance of an elevated railway in the street f"^ and since
the maintenance of a steam railroad in the highway, for
the purpose of transporting freight as well as passen-
gers from town to town, is usually regarded as a use of
the highway for other than highway purposes, the
abutting owners are, it seems, entitled to compensation
for the resulting interference with their rights of light,
air, and access, irresi^ective of the ownership of the land
within the highway limits.'''' A passenger street rail-
way, operated on the surface of the highways, whether
it be a horse, electric, or cable railway, is regarded as
237, 22 Pac. 899; Johnston v. Old
Colony R. Co., 18 R. I. 642, 49 Am.
St. Rep. 800, 29 Atl. 594; Frater
V. Hamilton County, 90 Tenn.
661, 19 S. W. 233; Davis v.
Spragg, 72 W. Va. 672, 48 L. R. A.
(N. S.) 173, 79 S. E. 652; 1 Lewis,
Eminent Domain, §§ 120-123;
Dillon, Mun. Corp. § 1245.
31. See, as to the character of
such rights, 15 Harv. Law Eev.
at p. 305. And as to the theory
on which they may be regarded
as arising, see 1 Lewis, Eminent
Domain (3rd Ed.), § 121 et seq.
32. Story v. New York Ele-
vated R. Co., 90 N. y. 122; Lahr
V. Metropolitan Elevated Ry. Co.,
104 N. Y. 268, 10 N. E. 528;
Bischoff v. New York El. E. Co.,
138 N. Y. 257, 33 N. E. 1073.
See Aldis v. Union Elevated R.
Co., 203 111. 567, 68 N. E. 95;
Rourke v. Holmes St. Ey. Co., —
(Mo. App.) — , 117 S. W. 1102.
33. Denver & S. F. R. Co. v.
Hannegan, 43 Colo. 122, 16 L. R.
A. (N. S.) 874, 127 Am. St. Rep.
100, 95 Pac. 343; South Carolina
E. Co. v. Steiner, 44 Ga. 546, 560;
Illinois Cent. R. Co. v. Elliott, 129
Ky. 121, 110 S. W. 817; Hoff-
man V. Flint & P. M. R. Co., 114
Mich. 316, 72 N. W. 167; Gustaf-
son V. Hamm, 56 Minn. 334, 22
L. E. A. 565, 57 N. W. 1054;
Theobold v. Louisville, N. O. & T.
Ey. Co., 66 Miss. 279, 4 L. R. A.
735, 14 Am. St. Rep. 564, 6 So.
230; Chicago, R. I. & P. Ry. Co.
V. Sturey, 55 Neb. 137, 75 N. W.
557; White v. Northwestern North
Carolina E. Co., 113 N. C. 610, 22
L. R. A. 627, 37 Am. St. Rep. 639,
18 S. E. 330; Caveness v. Char-
lotte, R. & S. R. Co., 172 N. C.
305, 90 S. E. 244; Gulf C. & S.
F. R. Co. v. Eddins, 60 Tex. 656.
See Decker v. Evansville, S. & N.
Ey. Co., 133 Ind. 493, 33 N. E.
§ -H7]
Public Eights.
153^
a use of the high way for highwaj^ purposes, and as
consequently not ground for the recovery of damages
by the abutting owner. ^^
Ordinarily, it seems, the construction of a tunnel or
subway involves no interference with any of these ease-
ments, and the abutting owner has, as such, no right to
assert a claim for damages on account thereof,^^^ but
the mode of construction may occasionally be such as
to involve interference.^^''
The authorities are generally to the effect that an
owner of land abutting on a street is not entitled to
compensation for impairment of the value of his land
by a change of the grade of the street, provided there
:;49; Kansas, N. & D. Ey. Co. v.
Cuykendall, 42 Kan. 234, 16 Am.
St. Eep. 21 Pac. 1051; Dillon,
Mun. Corp., §§ 1250-1257. But see
Ivloutgomeiy \'. Santa Ana West-
minster Ey. Co., 104 Cal. 186, 25
L. E. A. 654, 43 Am. St. Eep. 89,
37 Pac. 786; Olney, City of v.
Wharf, 115 111. 519, 56 Am. Rep.
178, 5 N. E. 366; O'Connor v. St.
Louis, K. C. & N. E. Co., 56 Iowa,
735, 10 N. W. 263; Henry Gans
& -Sons Mfg. Co. V. St. Louis, K.
& N. W. Ey. Co., 113 Mc. 308, 18
L. E. A. 339, 35 Am. St. Eep.
706, 20 S. W. 658; Sherlock v.
Kansas City B. Ey. Co., 142 Mo.
172, 64 Am. St. Eep. 551, 43 S.
W. 629; Reining v. New York, L.
& W. E. Co., 128 N. Y. 157.
34. 1 Ijewis, Eminent Domain,
§§ 158-164; Randolph, Eminent
Domain, §§ 402, 403; Chicago, B.
& Q. E. Co. V. West Chicago St.
E. Co., 156 111. 255, 29 L. E. A.
4S5, 40 N. E. 1008; Louisville Ey.
Co. V. Foster, 108 Ky. 743, 50 L.
E. A. 813, 57 S. W. 480; Briggs
V. Lewiston & H. E. Co., 79 Mo.
363, 1 Am. St. Eep. 316, 10 Atl.
2 R. P.— 22
47; Attorney General v. Metro-
politan E. Co., 125 Mass. 515; Aus-
tin V. Detroit, Y. & A. A. Ey. Co.,
134 Mich. 149, 2 Ann. Cas. 530,
96 N. W. 35; Placke v. Union
Depot Ey. Co., 140 Mo. 634, 41 S.
W. 915; Kirkpatrick v. Piedmont
Tiaction Co., 170 N. C. 477, 87 S.
E. 232; Eaffeity v. Central Trac-
tion Co., 147 Pa. 579, 30 Am. St.
Rep. 763,23 Atl. 884; San Antonio
Rapid Transit St. Ry. Co. v. Lim-
Inirger, 88 Tejf. 79, 53 Am. St.
Rep. 730, 30 S. W. 533. Contra.
Slaughter v. Meridian Light «S: E.
Co., 95 Miss. 251, 25 L. E. A. (N.
S.) 1265, 48 So'. 6; Jaynes v. Oma-
ha St. Ey. Co., 53 Neb. 631, 39
L. R. A. 751, 74 N. W. 67, by
reason of trolley poles).
34a. Lincoln Safe Deposit Co.,
210 N. Y. 34, 103 N. E. 768. See
Sears v. Crocker, 184 Mass. 586,
100 Am. St. Eep. 577, 69 N. E.
327.
34b. Colorado Springs v. .Stark,
57 Colo. 384, 140 Pac. 794; Barn-
ard V. Chicago, 270 111. 27, 110 N.
E 412.
1534
Real Pbopekty.
[§ 417
is no actual eucroacliment upon the land; and the fact
that the easements of light, air, or access are thereby-
affected is immaterial."^ -^
Besides the abutting owner's easements of light, air
and access, there are occasional decisions or dicta to
the effect that he has a right of unobstructed view from
and over every part of the highway to and from his
property,''*' and a number of courts have recognized
rights in him to the comfort and satisfaction obtain-
able from the presence of trees in the highway, with a
resulting right of action against persons injuring or
destroying the trees, he being sometimes referred
to as having an easement in the trees.^*"" In one state
it has been broadly asserted that the abutting owner has
a property right in all the advantages and benefits which
35. Smith v. Corpcration of
Washington, 20 How. (U. S.) 135,
15 L. Ed. 858; Bowden v. Jackson-
ville, 52 Fla. 216, 42 So. 394;
Eoberts v. City of Chicago, 26 111.
249; Reilly v. Fort Dodge, 118
Iowa, 633, 92 N. W. 887; Cal-
lender v. Marsh, 1 Pick. (Mass.)
417, 430; City of Pontiac v. Carter,
32 Mich. 164; RadclifE's Ex'rs v.
City of Brooklyn, 4 N. Y. 195;
Brand v. Multnomah County, 38
Ore. 791, 50 L. R. A. 389, 62 Pac.
209, 84 Am. St. Rep. 772, 60 Pac.
390; O'Connor v. Pittsburgh, 18
Pa. St. 187; Kehrer v. Rich-
mond City, 81 Va. 745; Walsh v.
Campbellsport, 123 Wis. 334, 101
N. W. 709; 1 Lewis, Eminent Do-
main, §§ 127-140; 3 Dillon, Mun.
Corp., § 1152.
In Ohio the abutting owner may
recover compensation for damage
to improved property from an un-
reasonable change of grade. City
of Akron v. Chamberlain Co., 34
Ohio St. 328; Cincinnati v. Whet-
stone, 47 Ohio St. 196.
36. First Nat. Bank v. Tyson,
133 Ala. 459, 59 L. R. A. 399, 91
Am. St. Rep. 46, 32 So. 144; Wil-
liams V. Los Angeles Ry. Co., 150
Cal. 592, 89 Pac. 330; Perry v.
Castner, 124 Iowa, 386, 100 N. W.
S4 ; McCormick v. Weaver, 144
Mich. 6, 107 N. W. 314; Jaynes
v. Omaha St. R. Co., 53 Neb. 631,
39 L. R. A. 751, 74 N. W. 67;
Hallock V. Scheyer, 33 Hun (X.
Y.) Ill; Cobb v. Saxby [1914] 3
K. B. 822. See Green v. Thresher,
255 Pa. 169, 83 Atl. 711, and edi-
torial «ote, 28 Harv. Law Rev.
499, from which some of the above
references have been taken.
36a. Newland v. Iowa Ry. &
Light Co., 179 Iowa, 228. 159 N.
W. 244; Donahue v. Keystone Gas
Co., 181 N. Y. 313, 70 L. R. A.
761, 106 Am. St. Rep. 549, 73 N.
E. 1108: Wheeler v. Norfolk- Caro-
lina Telephone & Telegraph Co.,
172 N. C. 9, 89 S. E. 793; Nor-
man Milling & Grain Co. v. Beth-
§ 417] Public Eights. 1535
accrue to him by reason of the location of liis land
upon the street.^'''
Rights of deviation. There are a number of
decisions and dicta to the effect that, if a highway be-
comes impassable at a certain point, a traveler may
deviate on the adjoining land.^^ The existence of such
a right at common law has been generally assumed;
but whether it would be recognized at the present day in
England, in the absence of a prescriptive right to
deviate, is doubtful."*' Even where the right is recog-
nized, it is restricted to cases of strict necessity,^" and
the deviation upon neighboring land must be to the
smallest possible extent.*^
Extinction of highway. The common-law max-
im, ''Once a highway, always a highway,"^- may be
regarded as entirely obsolete in this country, and here
a highway may cease to exist through one of several
causes.
There are in many states statutory provisions
for the "vacation" of a highway, frequently by proceed-
ings upon petition, more or less similar to proceedings
urem, 41 Okla. 735, 51 L. R. A. S. 848; 2 Wms. Saund., 161 note
(N. S.) 1082, 139 Pac. 830. (12).
37. Donahue v. Keystone Gas 39. See the remarks of Black-
Co., 181 N. Y, 313, 70 L. R. A. burn, J., in Arnold v. Holbrook,
761, 106 Am. St. Rep. 549, 73 N. L. R. 8 Q. B. 96, in which he shows
E. 1108. See 3 Dillon, Mun. Corp. that, in Duncomb's Case, Cro. Car.
S 1126. 366, and Absor v. French, 2 Show.
38. Carey v. Rae, 58 Cal. 159; 28, usually referred to in support
Irwin V. Yeager, 74 Iowa, 174, 37 of the right, the question was
N. W. 136; Campbell v. Race, 7 not involved.
Gush. (Mass.) 408, 58 Am. Dec 40. Campbell v. Race, 7 Cush.
728; Holmes v. Seely, 19 Wend. (Mass.) 408; State v. Brown, 109
(N. Y.) 507; Williams v. Safford. N. C. 802; Morey v. Fitzgerald,
7 Barb. (N. Y.) 309; State v. .16 Vt. 487, 48 Am. Rep. 811.
Brown, 109 N. C. 802, 14 S. E. 41. Holmes v. Seely, 19 Wend.
98; Morey v. Fitzgerald, 56 Vt. (N. Y.) 510; White v. Wiley, 59
487, 48 Am. Rep. 811; Taylor v. Hun. 618, 13 N. Y. Supp. 205.
Whitehead, 2 Doug. (Mich.) 745; 42. Dawes v. Hawkins, 8 C. B.
Dawes v. Hawkins, 8 C. B. N. (N. S.) 848, 858.
1536 Real Peoperty. [§ 417
for the establishment of a highway.^^ The owner of
land immediately abutting on the highway thus vacated
is, if the highway is a city street, usually regarded as
deprived of proj^erty by reason of the impairment of
his right of access, and so entitled to compensation.^^
The courts differ as to whether an abutting owner is
entitled to compensation in case a part of the highway
other than that contiguous to his land is vacated, and
even those which recognize a possible right of com-
pensation in such case differ as to the criteria by which
to determine whether he suffers substantial injury dif-
ferent from that suffered by members of the public
generally, so as to be entitled to compensation in the
particular case.^^*
Some courts hold that the public rights to use land
for a highway may be lost by adverse i^ossession on the '
part of an individual, they taking the view that the
maxim "Niillum tempus occurrit reyi" is not applicable,
since the o^vnership of the highway is to be regarded
as vested in the municipality or quasi municipality,
rather than in the state.^^ Other courts, however, deny
that a highway can be thus extingiiishedj^^ and this
43. 15 Am. & Eng. Law, 396 et 45. City of Fort Smith v. Mc-
seq.; Elliott, Roads & Streets, §§ Kibbin, 41 Ark. 45, 48 Am. Rep.
879-881. 19; Inhabitants of Town of Litch-
44. 1 Lewis, Eminent Domain, field v. Wilmot, 2 Root (Conn.)
§ 200 et seq.; 3 Dillon, Mun. Corp., 288; Dudley v. Trustees of Frank-
§ 1160; 3 McQuillan, Mun. Corp., fort. 12 B. Men. (Ky.) 612; City
§ 1405; Elliott, Roads and Streets, of Big Rapids v. Comstock, 65
§ 877. See Oler v. Pittsburgh, C, Mich. 78; Meyer v. City of Lincoln,
C. & St. L. Ry. Co., 184 Ind. 431, 33 Neb. 566, 29 Am. St. Rep. 500,
111 N. E. 619; Jones v. Aurora, 18 L. R. A. 146, 50 N. W. 763;
97 Neb. 825, 151 N. W. 958; Cham- Ostrom v. City of San Antonio,
bersburg Shoe Mfg. Co. v. Cum- 77 Tex. 345, 14 S. W. 66; Knight
berland Valley R. Co., 240 Pa. 519, v. Heaton, 22 Vt. 480.
87 Atl. 968. Compare Chenault 46. Reed v. City of Birming-
V. Collins, 155 Ky. 312, 159 S. ham, 92 Ala. 339, 9 So. 161; Hoad-
W. 834. ley v. City of San Francisco, 50
44a. See editorial note, 16 Co- Cal. 265; Ulmau v. Charles Street
lumbia Law Rev. at p. 139; 3 DU- Ave. Co., 83 Md. 130; Bice v.
Ion, Mun. Corp., p. 1842. Town of Walcott, 64 Minn. 459,
§ 417]
Public Eights.
1537
would seem to be the better view, since the municipality,
so far as it can he considered as the owner of the high-
way, is so merely as an agent of the state, and as any
adverse acts by an individual constitute an obstruction
of the highway, and are consequently a public nuisance,
the effect of the opposite ^dew is to validate, by lapse
of time, a public nuisance, — a thing which, by the au-
thorities generally, cannot be done.^'
Abandonment. There are a number of deci-
sions to the effect that the abandonment and consequent
extinction of a higliwa}" may be shown by nonuser, in
conjunction with other circumstances.^'' It is sometimes
said that a highway is not lost by nonuser,^^ but in
this respect the same principle apparently applies as
in the case of private easements v"**^ nonuser itself not
extinguishing the highway, but being a circumstance to
be considered with other circumstances, in determining
whether there has been an abandonment thereof.
67 N. W. 69; City of Vicksburg
V. Marshall, 59 Miss. 563; Thomp-
son V. Major, 58 N. H. 242; Ho-
boken Land & Improvement Co. v.
City of Hoboken, 36 N. J. Law
540; Driggs v. Phillips, 103 N. Y.
77, 8 N. E. 514; Heddleton v. Hen-
dicks, 52 Ohio St. 460; Com. v.
Moorehead, 118 Pa. St. 344, 4 Am.
St. Rep. 599; Almy v. Church, 18
R. I. 182, 26 Atl. 58; Ralston v.
Town of Weston, 46 W. Va. 544,
76 Am. St. Rep. 834, 33 S. E.
326; Yates v. Town of Warren-
ton, 84 Va. 337, 10 Am. St. Rep.
860. 4 S. E. 818.
47. Reed v. City of Birming-
ham, 92 Ala. 339. 9 So. 161; City
of Visalia v. .Jacob, 65 Cal. 434,
52 Am. Rep. 303, 4 Pac. 433;
Wolfe V. Town of Sullivan, 133
Ind. 331, 32 N. E. 1017; Terri-
tory V. Deegan, 3 Mont. 82; Driggs
V. Phillips, 103 N. Y. 77; Sim-
mons, V. Cornell, 1 R. I. 519. See
2 Wood, Nuisances, § 936.
48. Beardslee v. French, 7
Conn. 125, 18 Am. Dec. 86;
Greist v. Amrhyn, 80 Conn. 280,
68 Atl. 521; City of Peoria
V. Johnston, 56 111. 45; People
v. Cleveland, C. C. & St. L.
Ry. Co., 269 111. 555, 109 N.
E. 1064; Louisville, N. A. & C.
Ry. Co. V. Shanklin, 98 Ind. 573;
Larson v. Fitzgerald, 87 Iowa, 402,
54 N. W. 441; Holt v. Sargent,
15 Gray (Mass.) 97; Burgwyn v.
Lockhart, 60 N. C. 264; Elliott,
Roads & Streets, §§ 1172-1177.
49. Thompson v. Major, 58 N.
H. 242; Com. v. McNaugher, 131
Pa. St. 55, 18 Atl. 934; Galbraith
v. Littiech, 73 111. 209; McCarl
V. Clarke County, 167 Iowa, 14,
148 N. W. 1015.
50. See ante, S 377.
1538 Real Propeety. [§ 417
The statute occasionally provides that the failure
to open a highway for use within a certain time after
its establishment by statutory proceedings shall be
regarded as an abandonment,^^ and sometimes there is
a provision that this shall be the result of a failure to
use, for a period named, a highway which has been
opened. °-
Effect of extinction. When the highway in-
volves merely a right of user by the public, the owner
of the "fee," upon the extinction of the highway, re-
sumes entire dominion over the land, free from any
rights in the public.^'* Usually, the owner of the fee is
the abutting proprietor, and thus the extinction enures
to his benefit. ^^ In some jurisdictions there is a statu-
tory provision that the abutting owner shall have the
land in such case.'^
"When the "fee" is in the public, there is, by some
cases, a reverter of the land to the original owner upon
the extinction of the highway, upon the theory that the
public, or rather the state, has merely a determinable
51. Trotter v. Barrett, 164 111. Fontaine, 106 Minn. 225, 119 N.
262, 45 N. E. 149; Horey v. Vil- W. 400; Blain v. Staab, 10 N. Mex.
lage of Haverstraw, 124 N. Y. 273, 743, 65 Pac. 177; Heard v. Brook-
26 N. E. 532; McClelland v. Miller, lyn, 60 N. Y. 242; Lankin v. Ter-
28 Ohio St. 488; Pickford v. City williger, 22 Ore. 97, 29 Pac. 268;
of Lynn, 98 Mass. 491; 15 Am. & Paul v. Carver, 24 Pa. St. 207.
Eng. Enc. Law, 406. 64 Am. Dec. 649.
52. McRose v. Bottyer, 81 Cal. 54. Thomsen v. McCormick, 136
122, 22 Pac. 393; Herrick v. Town 111. 135; Harrison v. Augusta Fac-
of Geneva, 92 Wis. 114, 65 N. W. tory, 73 Ga. 447; Paul v. Carver.
1034; Freeholders of Mercer 24 Pa. St. 207, 64 Am. Dec. 649;
County V. Pennsylvania R. Co., 45 Healey v. Babbitt, 14 R. I. 533;
N. J. Law. 82; Barnes v. Midland Dickenson v. Arkansas City Imp.
Railroad Terminal Co., 218 N. Y. Co., 77 Ark. 570, 92 S. W. 21,
91, 112 N. E. 926. 113 Am. St. Rep. 170.
53. Harris v. Elliott, 10 Pet. 55. 15 Am. & Eng. Enc. Law,
(U. S.) 25, 9 L. Ed. 333; Benham 420. See Scudder v. City of De-
V. Potter, 52 Conn. 248; Smith troit, 117 Mich. 77; Haseltine v.
V. Horn, 70 Fla. 484, 70 So. 435; Nuss, 97 Kan. 228, 155 Pac. 55:
Waller v. River Forest, 259 111. Edwards v. Smith, 42 Okla. 544,
223, 102 N. E. 290; Steenerson v. 142 Pac. 302.
§ 418] Public Eights. 1539
fee.^^ By other decisions, there is a fee simple, and
not a mere determinable fee, in the public, and no right
of reverter exists.^"
Turnpikes. Turnpikes are highways, the use
of which by a member of the public is conditional upon
pa\anent by him of a certain fixed compensation or
''toll." Turnpikes are usually, if not always, estab-
lished by private corporations or associations of individ-
uals, mider authority granted by the state,^^ and the
right of way may be acquired under the power of emi-
nent domain, as in the case of any ordinary highway.'^''
The proprietors of the turnpike usually have an easement
only in the land for use as a highway,'''^ but may have
the ownership or ''fee. "^^ The turnpike must be kept
in repair by the proprietors thereof, and for injuries
caused by negligent failure to make repairs they are
liable.«2
§ 418. Parks, squares, and commons. In connec-
tion with the subject of highways, which they resemble
as involving rights of user in the individual members
of the public, it seems proper to refer to parks, public
squares, and commons, though the ownership of land
56. Gebhardt v. Reeves, 75 111. § 261; Randolph, Eminent Domain.
.'!01; Matthieson & Hegeler Zinc S 42.
Co. V. La Salle, 117 111. 411, 8 N. 60. See Wright v. Carter, 27
E. 81; Plumer v. Johnston. 63 N. J. Law, 76; Robbins v. Borman,
Mich. 165, 29 N. W. 687; Board 1 Pick. (Mass.) 122; Turner v.
of Education of Van Wert v. Rising Sun & L. Turnpike Co., 71
Edsan, 18 Ohio St. 221. And Ind. 547; State v. Maine, 27
see Fairchild v. City of St. Paul, Conn. 641, 71 Am. Dec. 89.
46 Minn. 540, 49 N. W. 325. 61. See People v. Newburgh &
57. Pettingill v. Devin. 35 Iowa, S. Plank Road Co.. 86 N. Y. 1.
344; Tifft v. City of Buffalo, 82 62. 2 Shearman & R. Negli-
N. Y. 204. gence, c. 16; Elliott, Roads &
58. Com. V. Wilkinson, 16 Pick. Streets S§ 111-116; Carver v. De-
(Mass.) 175, 26 Am. Dec. 654; troit & S. Plank-Road Co., 61 Mich.
Angell, Highways, S 8; Elliott, 5?4, 28 N. W. 721; Baltimore &
Roads & St. c. 4. L. T. Co. v. Ca.ssell, 66 Md. 419.
59. 1 Lewis, Eminent Domain, ',() Arn. St. Rep. 175, 7 Atl. 805.
1540 Real Peopeety. [<§ 418
appropriated to these purposes is usually vested in the
state or municipality, and consequently the rights exer-
cised therein by the public are but seldom rights in
another's land.
The term ''park" is ordinarily applied to a tract
of land, in or near a town or city, which is subject to
state or munieiiDal control, and designed to furnish the
public with opportunities for recreation and to obtain
fresh air and exercise. The term "square" or ''public
square" is also used in this connection, without any
very precise meaning, but usually with reference to a
space in a city, under municipal control, a part or the
whole of which is devoted to vegetation of an orna-
mental or at least agreeable character. Land may be
acquired for the purpose of a park or public square
by direct purchase,''^'^^ by proceedings under the power
of eminent domain,^^ or by dedication of land for the
purpose by a private individual.*'^'
Commons. The term "common" is sometimes
used to describe lands open to use by all the inhabitants
of a city or town, and subject to the control of the public
authorities. This is the construction usually given to
a grant or dedication of land for use as a "common,"
it being in effect thereby declared that the land shall
be open for use by the public, subject to municipal, or,
occasionally, state, control.^^
63-64. Holt V. City Council of 67. See City of Cincinnati v.
Somerville, 127 Mass. 408; People White's Lessee, 6 Pet. (U. S.) 431,
V. Common Council of Detroit, 28 8 L. Ed. 452; Den d. Coniniis-
Mich. 230, 15 Am. Rep. 202. .sioners of Town of Bath v. Boyd,
65. 1 Lewis, Eminent Domain, 23 N. C. 194; City of Newport
§ 271; Brooklyn Park Com'rs v. v. Taylor, 16 B. Men. (Ky.) 699;
Amstrong, 45 N. Y. 234, 6 Am. White v. Smith, 37 Mich. 291;
Rep. 70; West Chicago Park Goode v. City of St. Louis, 113
Com'rs V. Western Union Tele- Mo. 257, 20 S. W. 1048; Craw-
graph Co., 103 111. 33; St. Louis ford v. Mobile & G. R. Co., 67
County Court v. GriswoH, 58 Mo. Ga. 405; Sheffield & TuscumbiM
175. St. Ey. Co. v. Moore, 83 Ala. 294:
66. See post. § 479. Newell v. Town of Hancock, 67
§ 418] Public Rights. 1541
In the New England colonies the term "common"
was applied to a particular class of lands, which be-
longed, not to the municipality or to individuals, hut
rather to associations of individuals. This system of
holding lands arose from the frequent practice, upon the
founding of a town, of reserving a large portion of the
territory within the town limits, to be utilized by the
settlers in common for pasture, cultivation, the pro-
curing of timber or building stone, and like purposes.
Tracts of land thus reserved were called "commons,"
"common lands," or "general fields," and the persons
entitled to share in the benefits thereof were known as
"proprietors," in contradistinction to those who, be-
coming inhabitants of the town at a later period, were
not regarded as entitled to such benefits. As time went
on, these common lands became reduced in quantity,
owing to the extensive allotments of parts thereof by
the proprietors to individuals, and those which re-
mained common came gradually, as the numbers of the
non-proprietors increased so that they controlled the
policy and public opinion of the town, to be regarded
as the property of the town, rather than that of the
proprietors or their descendants; and so much of the
old common lands as at the present day retain their
common character are utilized chiefly for park and
pasture purposes, for the benefit of all the inhabitants.^'^
There have been a number of decisions in regard to
N. H. 244, 35 Atl. 253; Trustees son, 2 Johns. Cli. (N. Y.) 320.
of Western University v. Ecbin- 68. See Johns Hopkins Unlver-
son, 12 Serg. & R. (Pa.) 29; Carr sity Studies in Historical & Politi-
V. Wallace, 7 Watts (Pa.) 394; cal Science, Series 1, Nos. II., IX.,
Bell V. Ohio & P. E. Co., 25 Pa. X., by Prof. H. B. A.lams, and
St. 161, 64 Am. Dec. 687. Series 4, Nos. XL, XIL, by Mel-
■So occasionally, in colonial grants, ville Egleston, Esq.
certain land was given for use as The same system of commons oc-
a "common," this being regarded casionally e.xisted in New York,
as in effect a gift of the land to See John Hopkins Studies, Series
the town. Town of Southampton 4, No. I., by Irving Elting, Esq.;
V. Mecox Oyster Bay Co., 12 N. Appley v. Trustees of Montauk, 38
Y. St. Rep. 514; Donton v. .lack- Bnrb. (K. Y.) 275.
1542 Real Propekty. [§ 419
these couunon lands in New England, as, for instance,
to determine who constitute the proprietors, in a partic-
ular case,^^ the regularity of their meetings and pro-
ceedings,'^'^ or the validity of sales or allotments of the
lands to individuals.'''^ Such questions, however, are of
chiefly local interest, and, moreover, have lost their
importance to a great extent with the disappearance
of the common lands and the proprietary^ bodies, and
no consideration of these matters will be here at-
tempted.
Similar to the New England coimnon lands were
the communal lands belonging to the inhabitants of
French and Spanish villages in parts of the territory
included in the Louisiana purchase. The titles of these
conmaunal lands were confirmed in favor of the village
Inhabitants by act of congress after the cession of the
territory to the United States.'^-
§ 419. Customary rights. In England, persons of
a certain locality or of a certain class may have, by
immemorial custom, a right to make use of land belong-
ing to an individual. Thus, there may be a custom
for the inhabitants of a certain town to dance or play
games on a particular piece of land belonging to an in-
69. See Brackett v. Persons Un- cester v. Gaffney, 8 Allen (Mass.)
known, 53 Me. 228, 87 Am. Dec. 11.
548; Stevens v. Taft, 3 Gray 72. Savignac v. Garrison, 18
(Mass.) 487. How. (U. S.) 136, 15 L. Ed. 290;
70. See Copp v. Lamb, 12 Me. Dent v. Emmeger, 14 Wall. (U.
312; Dolloff V. Hardy, 26 Me. 545; S.) 308, 20 L. Ed. 838; Glasgow
Coffin V. Lawrence, 143 Mass. 110, v. Hortig, 1 Bla«k (U. S.) 595,
9 N. E. 6; Goulding v. Clark, 17 L. Ed. 110; Hebert v. Lavalle,
34 N. H. 148; Woodbridge v. 27 111. 448; Lavalle v. Strobel, 89
Proprietors of Addison, 6 Vt. 204. 111. 370; Haps v. Hewitt, 97 111.
71. See Mitchell v. Starbuek, 498; Page v. Scheibel, 11 Mo. 167;
10 Mass. 5; Dolloff v. Hardy, 26 City of St. Louis v. Toney, 21
Me. 545; Coburn v. Ellenwood, 4 Mo. 243; Carondelet v. City of
N. H. 99; Beach v. Fay, 46 Vt. St. Louis, 29 Mo. 527; Glasgow
337; Dall v. Brown, 5 Cush. v. Baker, 85 Mo. 559; Id., 72 Mo.
(Mass.) 289; Inhabitants of Glou- 441.
§ 419]
Public Rights.
154:5
dividual/"^ or to go thereon in order to get water." ^
So there may be a custom for fishermen to dry nets on
certain land,'-^ or for persons in a certain trade (victna-
lers) to erect booths upon certain private land during a
fair."^® The custom, to be valid, "must have continued
from time immemorial, without interruption, and as
of right; it must be certain as to the place, and as to
the persons; and it must be certain and reasonable as
to the subject matter or rights created.'""''
A right cannot be acquired by custom to use
particular land on navigable water for a wharf or land-
ing place, since this would in effect exclude the ow^ier
from all use of the land, and is unreasonable;'* and so
there can be no right by custom to maintain a building
or other permanent structure on a person's land.'*^
Likewise, a right to take profits from land, as distinct
from the mere right to use the land, cannot be estab-
lished by custom, since the effect of such a custom would
be to exhaust the profits. *°
73. Fitch V. Bawling, 2 H.
Blackst. 394; Abbott v. Weekly, 1
Lev. 176.
74. Eace v. Ward, 4 El. & Bl.
702.
The public may, it has been de-
cided, acquire a prescriptive right
to procure from a spring water
for a drinking trough on the high-
way. Kiser v. Douglas County, 70
Wash. 242, 41 L. R. A. (N. S.)
1066, 126 Pac. 622.
75. Blundell v. Caterall, 5 Barn.
& Aid. 268, 295.
76. Tyson v. Smith, 9 Adol. &
E. 406.
77. Leake, Prop, in Land, 552.
See Ck). Litt. 110b; Tyson v. Smith.
9 Adol. & E. 406; Goodman v.
City of Saltash, 7 App. Cas. 633.
78. Talbott v. Grace, 30 Ind.
389, 95 Am. Dec. 703; O'Neill v.
Annett, 27 N. J. L. 290, 72 Am.
Dec. 364; Thomas v. Ford, 63 Md.
346, 52 Am. Rep. 513; Pearsall v.
Post, 20 Wend. (N. Y.) Ill; Post
v. Pearsall, 22 Wend. (N. Y.) 425;
Bethum v. Turner, 1 Me. Ill;
Chambers v. Furray, 1 Yeates
(Pa.) 167; Cooper v. Smith, 9
Serg. & R. (Pa.) 25. Compare
Knowles v. Dow, 22 N. H. 387.
79. Attorney General v. Tarr,
148 Mass. 309, 2 L. R. A. 87, 19
N. E. 358. A like view was taken
as to an asserted public right
to pile wood on an individual's
land. Littlefield v. Maxwell, 31
Me. 134, 50 Am. Dec. 653.
80. Smith v. Gatewood, Cro.
Jac. 152; Id. sub nom. Gateward's
Case, 6 Coke 59b; Race v. Ward,
4 El. & Bl. 702; Hill v. Lord, 48
Me. 83; Cobb v. Davenport. 32 N.
ibU
Real Property.
[§ 420
Occasionally in tliis country it lias been decided that
rights to use private land cannot thus be created by
custom, for the reason that they would tend so to bur-
den land as to interfere with its improvement and
alienation, and also because there can be no usage in
this country of an immemorial character.^^ In one state,
on the other hand, the existence of such customary
rights is affirmed,*- and in others this is assumed in
decisions adverse to the existence of the right in the
particular case.^^
§ 420. Rights of fishing. While the individual
members of the public have rights of fishing in waters,
the soil below which is the property of the state, ^^ ex-
cept in those cases in which an exclusive right to fish
there has been granted by the state legislature or other
sovereign authority,*^ they have, as a general rule, no
J. Law, 369; Pearsall v. Post, 20
Wend. (N. Y.) Ill; Post v. Pear-
sall, 22 Wend. (N. Y.) 425; Per-
ley V. Langley, 7 N. H. 233; Nudd
V. Hobbs, 17 N. H. 524; Smith
V. Floyd, 18 Barb. (N. Y.) 522;
Waters v. Lilley, 4 Pick. (Mass.)
145, 16 Am. Dec. 333; Turner v.
Selectmen of Hebron, 61 Conn.
175, 14 L. R. A. 386, 22 Atl. 951.
81. Graham v. Walker, 78
Conn. 130, 61 Atl. 98, 2 L. R. A.
(N. S.) 98.3, 112 Am. St. Rep. 93.
3 Ann. Cas. 641; Ackerman v.
Shelp, 8 N. J. Law, 125; Harris
V. Carson, 7 Leigh (Va.) 632;
Delaplane v. Crensliaw, 15 Grat.
(Va.) 457. See Gray, Perpet-
uities, §§ 572-586, where the sub-
ject of this section is fully dealt
with.
82. Sudd V. Hobbs, 17 S. H.
524; Knowles v. Dow, 22 N. H.
387.
83. See cases cited ante, notes
78-80.
84. Manchester v. Massachu-
setts, 139 U. S. 240; Barbaro v.
Boyle, 119 Ark. 377. 178 S. W.
378; Sollers v. Sollers, 77 M. 148,
20 L. R. A. 94, 39 Am. St. Rep.
404, 26 Atl. 188; Inhabitants of
West Roxbury v Stoddard, 7 Allen
(Mass.) 158; Lincoln v. Davis,
53 Mich. 375. 51 Am. Rep. 116,
19 N. W. 103; Arnold v. Mundy,
6 N. .1. Law, 1, 10 Am. Dec. 356;
Hooker v. Cummings, 20 Johns.
(N. Y.) 90, 11 Am. Dec. 249; Col-
lins V. Benbury, 25 N. C. 277, 38
Am. Dec. 722; Bell v. Smith, 171
N. C. 116, 87 S. E. 987; Sloan
V. Biemiller, 34 Ohio St. 492;
Carson v. Blazer, 2 Binn. (Pa.)
475; Legoe v. Chicago Fishing Co..
24 Wash. 175, 64 Pac. 141.
85. See Sollers v. Sollers. 77
Md. 148. 39 Am. St. Rep. 404:
§ 421]
Public Rights.
1545
such right in water which covers land belonging to a
private undividual.^^ There is an exception to this rule,
however, in the case of the shore of tide w^aters, that is,
the space between high and low water; and although
this belongs to an individual, the public may take fish,
including shellfish, thereon,^'^ provided they do so with-
out trespassing on the latter 's land above high-water
mark,^^ and do not undertake to attach fishing appli-
ances to the shore. ^^
§ 421. Rights of navigation. Every member of the
public has the right of navigation in waters capable of
such use, without reference to whether the land be-
neath the water belongs to the public or to individual
owners. The rights which individual owners may have
in the land below the water or in the shores or banks are
Power V. Tarzewells, 25 Grat.
(Va.) 786; Trustees of Brook-
haven V. Strong, 60 N. Y. 56;
Heckman v. Swett, 107 Cal. 276,
40 Pac. 420; Fagan v. Armistead.
33 N. C. 433.
86. Smith v. Andrews [1891] 2
Ch. .678; Johnston v. O'Neill
(1911) App. Gas. 552; Holyoke
Water Power Co. v. Lyman, 15
Wan. (U. S.) 500, 21 L. Ed. 133;
Beckman v. Kreamer, 43 111. 447,
92 Am. Dee. 146; Waters v. Lilley,
4 Pick. (Mass.) 145, 16 Am. Dec.
.333; Lincoln v. Davis, 53 Mich.
375. 51 Am. Rep. 116, 19 N. W.
103; Hooker v. Cummings, 20
.Johns. (N. Y.) 90, 11 Am. Dec.
249; Lembeck v. Nye, 47 Ohio
St. 336, 21 Am. St. Rep. 828; Bay-
lor v. Decker, 133 Pa. St. 168:
Winans v. Willetts, — Mich. — ,
163 N. W. 993; Griffith v. Hol-
raan. 23 Wash. 347, 83 Am. St.
Rep. 821, 54 L. R. A. 178, 63
Pac. 239; State v. Theriault, 70
Vt. 617, 41 Atl. 1030, 43 L. R. A.
290, 67 Am. St. Rep. 695. See New
England Trout & Salmon Club v.
Mather, 68 Vt. 338, 33 L. R. A.
569, 35 Atl. 323. And compare
Hogg V. Beerman, 41 Ohio St. 81,
52 Am. Rep. 71; and cases cited
post, § 421, note 99.
87. Bagott V. Orr, 2 Bos. & P.
472; Shiveley v. Bowlby, 152 U.
S. 1, 38 L. Ed. 331; Bickel v.
Polk, 5 Har. (Del.) 325; Peck v.
Lockwood, 5 Day (Conn.) 22;
Moulton V. Libbey, 37 Me. 472, 59
Am. Dec. 57; Wilson v. Inloes. G
Gill. (Md.) 121; Lakeman v.
Burnham, 7 Gray (Mass.) 437;
Allen V. Allen. 19 R. I. 114.
88. 3 Kent, Comm. 417; Bickel
V. Polk, 5 Har. (Del.) 325; Coo-
lidge V. Williams, 4 Mass. 140;
Cortelyou v. Van Brundt, 2 Johns.
(N. Y.) 357. 3 Am. Dec. 439.
89. Duncan v. Sylvester, 24 Me.
482. 41 Am. Dec. 400; Matthews
v. Treat, 75 Me. 594; Locke v.
1546
Real Pkopekty.
[\ 421
subordinate to this right of navigation in the public,
and consequently they cannot place any structure or
article upon the land below the water which is calculated
substantially to interfere with navigation.^^
"Floatable" streams— that is, streams which, while
not capable of navigation by vessels or boats, are
capable of use for floating timber to market — are, in
this limited sense, navigable, and the rights of private
owners of the land thereunder are regarded as, to some
extent, subject to the rights of the public to use them
for floating timber.''^ Streams are to be regarded as
"floatable," it seems, even though they can be thus
used only at certain seasons of the year, provided these
seasons recur with regularity.''- The rights of the pub-
lic to float timber on such streams are not exclusive of
the rights of owners of land under or abutting on the
Motley, 2 Gray (Mass.) 265; Whit-
taker V. Burhans, 62 Barb. (N. Y.)
237.
90. Barney v. Keokuk, 94 U.
S. 324, 24 L. Ed. 224; Yolo County
V. City of Sacramento, 36 Cal.
193; Charleston & S. Ry. Co. v.
Johnson, 73 Ga. 306; Wadsworth
V. Smith, 11 Me. 278, 26 Am. Dec.
525; Brooks v. Cedar Brook & S.
C. R. Imp. Co., 82 Me. 17, 7 L.
R. A. 460, 17 Am. St. Rep. 459,
19 Atl. 87; Com. v. Chapin. 5
Pick. (Mass.) 199; Smith v. City
of Rochester, 92 N. Y. 463; Hogg
V. Beerman, 41 Ohio St. 81, 52 Am.
Rep. 71: Barclay Railroad & CoaT
Co. V. Ingham, 36 Pa. St. 194;
Cobb V. Bennett, 75 Pa. St. 326;
Volk V. Eldred, 23 Wis. 410; Ste-
vens Point Boom Co. v. Reilly, 46
Wis. 237, 49 N. W. 978.
91. Lewis V. Coffee County, 77
Ala. 190, 54 Am. Rep. 55; Wads-
worth V. Smith, 11 Me. 278, 26
Am. Dec. 525; Thunder Bay River
Booming Co. v. Speechly, 31 Mich.
336. 18 Am. Rep. 184; Carter v.
Thurston, 58 N. H. 104, 42 Am.
Rep. 584; Shaw v. Oswego Iron
Co., 10 Or. 371, 45 Am. Rep. 146;
Gatson v. Mace, 33 W. Va. 14, 5
L. R. A. 392, 25 Am. St. Rep.
848, 10 S. E. 60; Olson v. Merrill,
42 Wis. 203; Lebanon Lumber Co.
V. Leonard, 68 Ore. 147, 136 Pac.
891; Fortson Shingle Co. v. Skag-
land, 77 Wash. 8, 137 Pac. 304.
92. Lewis v. Coffee County, 77
Ala. 190, 54 Am. Rep. 55; Hubbard
V. Ben, 54 111. 110, 5 Am. Rep. 98:
Brown v. Chadbourne, 31 Me. 9.
50 Am. Dec. 641; Holden v. Rob-
inson Mfg. Co., 65 Me. 216; Thun-
der Bay River Booming Co. v.
Speechly, 31 Mich. 336, 18 Am.
Rep. 184; Smith v. Fonda, 64
Miss. 551, 1 So. 757; Morgan v.
King, 35 N. Y. 454, 91 Am. Dec.
58; Commissioners of Burke
County V. Catawba Lumber Co..
116 N. C. 731, 47 Am. St. Rep.
<^ 421]
Public Rights.
1547
stream to dam or otherwise utilize the waters thereof,
it being suflScient if there is left a reasonable passage
for timber.^^
Incidental to the right of navigation is the right
to anchor one's vessel in the stream for a reasonable
time, either adjoining one's own land or elsewhere, in
such a way as not unduly to obstruct navigation or to pro-
vent access to the water, for purposes of navigation, by
other persons who may own land abutting thereon/-** But
there is no incidental right of using adjoining land for a
mooring or landing place,*^^' or of going thereon for the
purpose of towage.''^ On principle, moreover, it seems,^''
the fact that the public have a right of navigation over
private land should give them no right of hunting,^'^'^
829, 840, 21 S. E. 941, and note;
Haines v. HaU, 17 Ore. 165.
93. Thunder Bay River Boom-
ing Co. V. Speedily, 31 Mich. 336,
18 Am. Rep. 184; Kretzschmar v.
Meehan, 74 Minn. 211, 77 N. W.
41; Foster v. Sears port Spool &
Black Co., 79 Me. 508, 11 Atl. 273;
A. C. Conn. Co. v. little Suamico
Lumber Mfg. Co., 74 Wis. 652, 43
N. W. 660.
94. Gann v. Whitstable Free
Fishers, 11 H. L. Cas. 192; Orig-
inal Hartlepool Collieries Co. v.
Gibb, 5 Ch. Div. 713; Bainbridge
V. Sherlock, 29 Ind. 364, 95 Am.
Dec. 644; Rice v. Ruddiman, 10
Mich. 125; Delaware River Steam-
boat Co. V. Burlington & B Steam
Ferry Co., 81 Pa. St. 103. Com-
pare Wall V. Pittsburg Harbor Co.,
152 Pa. St. 427.
95. Ensminger v. People, 47 111.
384; Bainbridge v. Sherlock, 29
Ind. 364, 95 Am. De«. 644; Smith
V. Atkins, 22 Ky. L. Rep. 1619,
53 L. R. A. 790, 60 S. W. 93(T;
State V. Wilson, 42 Me. 9; Steam-
boat Magnolia v. 'Mai-shall, 30
Miss. 109; Weems S. B. Co. v.
People's S. B. Co., 214 U. S. 345.
53 L. Ed. 1024.
96. Ball V. Herbert, 3 Term R.
253. And see, as to trespasses on
the banks while driving logs, or
in the contruction of booms,
Brown v. Chadbourne, 31 Me. 9,
50 Am. Dec. 641; Hooper v. Hob-
son, 57 Me. 273, 99 Am. Dec. 769.
Compare Weise v. Smith, 3 Or.
445, 450; Lownsdale v. Gray's Har-
bor Boom Co., 21 Wash. 542, 58
Pac. 663, 3 Kent. Comm. 426.
97. See editorial note. 27 Harv.
Law Rev. 750.
97a. Adams v. Pease, 2 Conn.
481; Schulte v. Warren, 218 111.
108, 13 L. R. A. (N. S.) 745, 75
N. E. 783; Sterling v. Jackson,
69 Mich. 488, 37 Am. St. Rep.
405, 37 N. W. 845; Hall v. Alford.
114 Mich. 165, 72 N. W. 137, 38
L. R. A. 205; State v. Shannon,
36 Ohio St. 423; Hooker v. Cum-
mings, 20 Johns. (N. Y.) 90;Fitz-
hardinge v. Purcell, 77 Law
.Tourn. Ch. Div. 529.
154S
Beal Property.
[§ 421
or fisliing-.^^ But there are occasional decisions recog-
nizing such a right.^^
98. Hartman v. Tresise, 36
Colo. 146, 4 L. R. A. (N. S.) 872,
84 Pac. 685; Schiilte v. Warren,
218 111. 108, 75 N. E. 783; New-
England Trout & S. Club v.
Mather, 68 Vt. 338, 33 L. R. A.
569, 35 Atl. 323.
99. As to hunting, see Fores-
tier V. Johnson, 164 Cal. 24, 127
Pac. 156; Diana Shooting Club v.
Husting, 156 Wis. 261, 145 N. W.
816. As to fishing, see Willow
River Club v. Wade, 100 Wis, 86
42 L. R. A. 305, 76 N. W. 272;
Bodi V. Winous Point Shooting
Club, 57 Ohio St. 226, 48 N. E.
944 (semhle) ; Winous Point
Shooting Club v. Slaughterbeck,
96 Ohio, 139, 117 N. E. 162 (sem.-
ble.)
The Colonial ordinance in force
in Massachusetts and Maine, by
which the title to the flats or
shore was conferred on the up-
land owner, expressly reserved the
right to every householder in the
community to go upon such flats
for fishing and fowling. See
Comm. V. Alger, 7 Cush. (Mass.)
53; Moore v. Griffin, 22 Me. 350.
Part Five.
the transfer of rights in land.
CHAPTER XVIII.
TRANSFER BY THE GOVERNMENT.
§ 422. The nature of the government title.
423. Grants by the United States.
424. Grants by the states.
425. Spanish and Mexican grants.
426. Patents.
§ 422. The nature of the government title. All
the land in the United States, now owned by individnals,
formerly belonged either to the federal government, to
an individual state, or to a foreign nationality, which
disposed of it to an individual proprietor before that
particular territory became a part of this country. These
grants of land by foreign states to individuals, made
before the incorporation of that particular territory in
the United States, are the chief basis of titles in some
parts of the country, and it seems proper to briefly
sketch the history of the various acquisitions of terri-
tory by this nation, in order bettor to understand the
various classes of government grants on which the exist-
ing proprietary rights of individuals may be based.
The British claim of dominion over the territory
included witliin the original thirteen colonies was based
upon discovery, consummated by possession, the wan-
deriug Indian tribes being regarded as having a uiere
right of occu[)ancy.^ The dominion and ownership tlius
acquired was, in some of the colonies, granted by the
British crown to individual proprietors or proprietary
companies, by whom pa its of the land were in turn
1. Johnson's Lessee v. Mc- L. Ed. 681.
Intosh, 8 Wheat. (U. S.) 543, 5
(1549)
2 R. P.— 23 ^ '
1550 Real Property. [§ 422
granted to individuals. In otliers of tlie colonies the
title to the soil remained in the British crown, and
grants were made to individuals by the governor of
the colony in the name of the king. After the Revolu-
tion, tlio title of the crown to lands still undisposed of
passed to the states, and lands belonging to the original
proprietaries were in some cases confiscated. Thus it
may be said that the title to all land within the original
thirteen states is derived, directly or indirectly, from
the British crown, with the exception only of con-
siderable bodies of land in the state of New York, the
title to which is based on grants by the Dutch govern-
ment or its representatives, which grants, however, were
recognized and confirmed by the British crown upon the
conquest of that territory.
The territory west of the Allegheny mountains and
east of the Mississippi river, which had been claimed
by the French, came, as a result of the French and
Indian war, and of the treaty of Paris in 1763, under
the exclusive dominion of England. The lands within
this territory were, by royal proclamation, set apart as
''crown lands." After the separation of the colonies
from England, a number of the colonies asserted claims
to parts of these crown lands, as being included within
their limits under their royal charters. These claims,
so far as concerned what was known as the ''North-
west Territory" — that is, the territory northwest of
the Ohio river — were opposed by the other colonies in
the negotiations leading up to the Articles of Confedera-
tion, and finally the colonies asserting such claims ceded
practically all their lands, or their claims thereto, within
the limits of such territory, to the confederation. Of
the territory south of the Ohio river, the state of
Kentucky was formed out of that part of Virginia west
of the Allegheny mountains, while the balance of this
territory, so far south as the Spanish territory of Flor-
ida, was ceded to congress by the respective states
claiming it.
§ 422] Tkansfer by Government. 1551
In 1803, the United States purchased from France
the ^'Louisiana" territory', which was bounded on the
east by the Mississippi river, and on the west by a line
which ran, approximately, along the present eastern
boundary of Idaho, and through the center of what are
now Colorado and New Mexico. This territory extended
north to Canada, and south to the Arkansas river and
the present northern boundary of Texas. In 1819, the
"Florida" purchase was made from Spain, this includ-
ing the present Florida and parts of Mississippi, Ala-
bama, and Georgia. In 1845, Texas, which had obtained
independence from Mexico in 1836, was annexed to the
United States. In 1848, as a result of the war with
Mexico, that nation ceded to the United States territory
included, approximately, within the present limits of
California, Nevada, Utah and Arizona, and within parts
of Colorado and New Mexico, it extending in effect
from the Pacific ocean to the Western limit of the Louis-
iana purchase ; and subsequently, in 1853, a compara-
tively small portion of territory, adjoining the present
Mexican boundary, w^as purchased from Mexico, in or-
der to settle a question as to the limits of the cession
of 1848, this being known as the "Gadsden Purchase."
In 1846, by treaty with Great Britain, the territory com-
prising that now occupied by Washington, Oregon, and
Idaho, which had been in dispute between the two
countries for many years, was ceded by Great Britain,
this country ceding in return all claim to the terri-
tory to the North thereof. In 1867 the ]irosent terri-
tory of Alaska was purchased from Russia.
While by far the greater part of the lands of which
either the United States government or individual states
have had the ownership and control has been acquired
either from a foreign state or by cession from the
general government to a state, or vice versa, land may
be acquired from individual owners, by either the
United States or an individual state, by forfeiture, es-
cheat, the exercise of the jjowcj" of eminent domain, or
voluntary transfer.
1552 Real Propeety. [§ 423
§ 423. Grants by the United States. The territory
ceded to the confederation by individual states, and
that acquired by the present government from foreign
powers, was, for the most part, free from any claims
of ownership by individuals, and was therefore open to
disposition by the government in such a way as seemed
expedient. The land thus owned and controlled by the
government, known as "public land," has been grad-
ually disposed of to individuals and corporations by
various methods, intended, and usually adapted, to
aid in the settlement and industrial development of the
country. The more important methods of disposition
wiiich have been adopted will be brief!}" described.
Public sales. In the early period of the land
system it was the custom to offer lands, as soon as sur-
veyed, at public sale, in accordance with a proclamation
by the president, and at a minimum price.^ This sys-
tem of disposing of public lands gave room for much
abuse and oppression, it often occurring that the land
had been improved by actual settlers, who would be dis-
possessed by purchasers at these sales, and it gradually
fell into disuse. It is now to some extent abolished by
statute.^ The amount of land held under title thus
acquired from the government is not large.
Pre-emption. In consequence of the evils re-
sulting from the system of public sales, the "pre-emp-
tion" system was instituted, by which one who settled
on one hundred and sixty acres of land, improving it
and erecting a dwelling thereon, was entitled to pur-
chase the land in preference to any other person. After
settling on the land, he was required to file a statement
or "entry" in the land office within a certain time,
declaring his purpose to claim the right of pre-emption,
and also to file proof that he was entitled to the right',
2. See Rev. St. U. S. §§ 2353, 9, 10; 1 Dembitz, Land Titles, p.
2357-2360. 620, note.
3. See 26 U. S. Stat. 1099, §§
§ 423] Transfer by Government. 1553
and to pay the sum fixed by law as the purchase price.
He then received a certificate of entry.* Before making
such proof and payment, the claimant was regarded as
having merely a privilege to purchase the land, of which
he might be deprived by the government by a grant or
sale to others.^ And such privilege or right of pre-
emption could not, by the express provision of the stat-
ute, be assigned to another person, though the pre-
emptor could transfer his interest after payment and
issue of the certificate.^ The pre-emption law has now
been repealed.'''
Homestead entry. Since the rejieal of the
laws allowing public sales and of the pre-emption law,
the only system of general application for the ac-
quisition of public lands is under the ''homestead"
law. By this law, any citizen, or intending citizen, who
is an adult or head of a family, w'ho does not own one
hundred and sixty acres of land in any state or terri-
tory, and who has not previously exercised the home-
stead right, ma}" make application for the benefit of the
law, and this, if followed by bona fide occupation and
cultivation of the land for five years, entitles him to a
certificate and patent for the land, wathout making any
payment other than the land-office fees.^
— —Railroad grants. Great quantities of land have
been granted out of the public domain of the United
States to aid and stimulate railroad construction
through the territory in which the land lay. Tliese
grants usually consist of the odd-numbered sections on
both sides of the railroad to a certain distance, frequent-
ly five miles, and the even-numbered sections, thereby
4. Rev. St. U. S. §§ 2257-2288 v. Craft, 13 Wall. (U. S.) 291.
5. Frisbie v. Whitney, 9 Wall. 20 L. Ed. 562.
fU. S.) 187, 19 L. Ed. 668; Yo- 7. Act March 3, 1891 (26 Stat.
Semite Valley Case, 15 Wall. (U. 1097).
S.) 77, 21 L. Ed. 82. 8. Rev. St. U S. ?§ 2289. 2;i02.
0. Rev. St. U. S. § 2263: Myers
155i Real Pkopehty. [§ 42^^
presumably increased in value, the government there-
after holds at an increased price. In many cases these
grants to aid in the building of railroads have been
made to the state in which the railroad was to be built,
instead of to the corporation building it. In such cases
the state takes merely the legal title, in trust for the
railroad.^
These grants to the railroads are subject to any
previous rights w^hich may have been acquired by others
in the lands granted, under the pre-emption, homestead,
or other law^s. • To compensate for any loss to the rail-
road corporation through such causes, the statute
making the grant usually provides for ''indemnity
lands" at a greater distance from the railroad, these
being lands which the railroad company is authorized
to take in lieu of those in its original grant already
taken up by others. ^*^ A railroad grant almost in-
variably takes eifect so soon as the survey or location of
the proposed railroad through the public land has been
approved by the land office, and the title to the alter-
nate sections, as named in the act constituting the
grant, then vests in the railroad company as of the date
of the grant. ^^
— —Grants to states. Congress has, at various times
and for divers purposes, granted parts of the land to
states. Among the most important of these grants are
9. Rice V. Minnesota & N. W. Iowa Falls Town Lot & Land Co.
R. Co., 1 Black (U. S.) 358, 360, v. Griffey, 143 U. S. 32. 36 L. Ed.
17 L. Ed. 147; Wulsey v. Chap- 64.
man, 101 U. S. 755, 25 L. Ed. 11. Van Wyck v. Knevals, 106
915; Schulenberg v. Harriman, 21 U. S. 360, 27 L. Ed. 201; Sioux
Wall. (U. S.) 60, 22 L. Ed. 554. City & Iowa Falls Town Lot &
10. Leavenworth, L. & G. R. Land Co. v. Griffey, 143 U. S. 32,
Co. V. United States, 92 U. S. 36 L. Ed. 64; Curtner v. United
733, 23 L. Ed. 634; Broder v. Na- States, 149 U. S. 672, 37 L. Ed.
toma Water & Mining Co.. 101 U. 893; St. Paul & S. C. R. Co. v.
S. 274. 25 L. Ed. 790; Winona & Winona & St. P. R. Co., 112 U.
St. P. R. Co.. V. Barney. 113 U. S. S. 720, 28 L. Ed. 872.
618, 28 L. Ed. 1109; Sioux City &
§ 423] Transfer by Government. 1555
those for educational purposes. Usually, section six-
teen in every township, and sometimes also section
thirty-two, has been granted to the state or territory
for the su]3port of schools; besides which, grants have
been made for state universities, agricultural colleges,
and similar purposes.
To each state, also, in which there were then public
lands, five hundred thousand acres were, by act of
congress, granted for internal improvements, and this
grant extends to each new state as it is admitted. ^^
By the ' ' swamp land ' ' grant of 1850, all swamp and
overflowed lands unfit for cultivation on that account
were granted to the several states in which they were
situated, subject to certain restrictions, for the purpose
of aiding in the reclamation of such lands. ^^
Townsites. The statutes of the United States
specify three methods by which public lands may be
acquired for townsites: (1) The president may reserve
land for townsite purposes on harbors or rivers, or at
other possible centers of population, and lots therein
may be sold at public outcry. (2) Persons desiring to
found a city or town on public land may locate a town-
site not over six hundred and forty acres in extent, and
lay off lots therein, and the president may then author-
ize the sale of such lots at a minimum price of ten dol-
lars per lot. (3) Public land which has actually been set-
tled upon and occupied as a townsite may be entered in
the office as a townsite by the municipal authorities
thereof, or by the county judge. ^^
Mineral lands. Lands belonging to the United
States which contain valuable deposits of minerals have
usually been excepted from the operation of general
laws for the acquisition of land jjy individuals, such as
the pre-emption and homestead laws. For many years,
12. Act Sept. 8, 1841 (Rev. St. 14. Rev. St. §§ 2380-2389; 2
U. S. § 2378). Copp. Pub. Land Laws (1890)
13. Rev. St. U. S. § 2479. 1010-1013.
1556 Reau Property. [§ 423
mineral lands were merely leased by the government for
the purpose of working. After the discoveries of pre-
cious metals in the western territory, the mineral de-
posits on the public lands were worked by the immi-
grants under mining regulations established by them-
selves, and without any permission from the government,
and the courts adopted the fiction that the first appro-
priator, in accordance with the local mining regulations,
had a license from the government to work the mines.^^-
It was not until 1866 that congress passed an act pro-
viding for the acquisition of mineral lands within the
public domain by individuals at nominal prices. This
statute adopted the essential features of the local
miners' regulations in regard to the acquisition or "lo-
cation" of claims, and all legislation by congress on the
subject has recognized the validity of such regulations,
as well as of state statutes, when not in conflict with
the acts of congress. ^*^
The statutes on the subject of the acquisition of
claims make a distinction between mineral deposits in
''lodes" or "veins," these being equivalent terms, and
"placer" deposits. A "lode" or "vein," as the terms
are used in the statute, is a "line or aggregation of
metal imbedded in quartz or other rock in place," while
the term "placer" is applied to ground which "contains
mineral in its earth, sand, or gravel; ground that in-
cludes valuable deposits not in place,— that is, not fixed
in rock, — but wiiich are in a loose state, and may, in
most cases, be collected by washing or amalgamation
without milling. ' '^^
Any citizen or intending citizen, upon discovering
a vein or lode of minerals on public land, may "locate"
a claim thereto by marking the limits of his claim on
15. Sparrow v. Strong, 3 Wall. on the subject are to be found
(U. S.) 97, 18 L. Ed. 49; 1 Bar- in Rev. St. §§ 231S, 2352.
ringer & Adams, Mines & Min- 17. Mr. Justice Field in United
ing, 196. States v. Iron Silver Min. Co., 128
16. The United States statutes U. S. 673, 32 L. Ed. 571.
<§> 424] Teansfer by Government. 1557
the ground, and in some states, by local requirements,
by posting notice of the claim, and recording a certifi-
cate of the location.^^ The extent of the claim is, in
the c-ase of a lode or vein, limited by the United States
statute to fifteen hundred feet in the direction in which
the lode or vein runs, and three hundred feet on each
side of the vein ; the boundaries running in the direction
of the vein being known as "side" lines, and those run-
ning across the vein as "end" lines. The locator is
entitled to any ore within the space marked by these
surface lines extended downward vertically, and may
follow the vein across his side lines, even though, in
so doing, he takes ore from beneath the surface claim
of another, but he cannot follow the vein across his end
lines.
A placer claim or location is limited to one hundred
and sixty acres in case the location is made by an asso-
ciation of not less than eight bona fide locators, and to
twenty acres in the case of a location by an individual.
In order that one who has located a claim may con-
tinue to hold it, he must do work or make improvements
thereon to the value of at least one hundred dollars in
each year, and, in case of his failure so to do, the claim
is forfeited, and open to location by another person.'"
§ 424. Grants by the states. Of tlie lands witliin
the original thirteen colonies, the larger part had, at
the time of the American Revolution, been granted to
individuals or to associations, to hold in private owner-
ship, and their rights, except in so far as the lands were
confiscated for disloyalty, were not affected by the
transfer of the sovereignty to the state. Those lands,
however, which had not been granted away by the
crown^ passed to the respective state governments as
successors to the crown, and as representatives of the
18. Barringer & AdamH, Mines ringer & Adams, Mines & Min-
& Mining, c. 7. ing c. 9.
19. Rev. St. U. S. § 2324; Bar-
1558 Eeal Pbopebty. [<^ 424
public. Such lands, the title to which was thus vested
ill any of the original states, have been disposed of
either by special legislative grants, or in accordance
with a regular statutory system, established for the
purpose, providing for their survey and sale to persons
making formal application to the state authorities.
The territory ceded by certain states to the general
government was, to some extent, incumbered by grants
previously made to indniduals by the ceding state, and
these grants were usually, by the agreement for cession,
recognized by the United States. Of the lands of which
the title thus became vested in the states, the most im-
portant were those under tidal and navigable waters,
over which the state governments have always exercised
control, and which they have, as a general rule, not
granted away to individuals, the policy of the states,
however, differing among themselves in this regard.^"
Within the territory ceded to the United States by
foreign governments, the states formed therefrom have
no rights to vacant lands except as these may have been
granted to them by the United States government.
Such grants have, however, as above stated, been made
to a very considerable extent, and the lands so granted
to the states they have disposed of to individuals and
corporations in various ways.
The land under navigable waters within the limits
of the territory ceded to the United States, either by
one of the states or by a foreign country, passed to the
United States for the benefit of the whole people, and
in trust for the several states to be ultimately created
out of such territory, and, upon the admission of any
part of such territory as a state, such lands pass ipso
facto to the state government, subject, however, to any
grants of rights therein which may have been made for
appropriate purposes by the United States government
20. Martin v. WaddeU's Lessee, 38 L. Ed. 331.
16 Pet. (U. S.) 367, 10 L. Ed. 997; See ante, §§ 300, 301.
Shiveley v. Bowlby, 152 U. S. 1,
§ 424] Transfer by Government. 1559
while holding the country as a territory. Consequently,
the new states admitted into the Union since the adop-
tion of the constitution have the same rights as the
original states in the tide waters, and in the lands under
them, within their respective jurisdictions, and they may
accordingly grant rights therein to individuals, as it
may seem most expedient, subject only to the paramount
rights of navigation and commerce.^^
The vacant lands which belonged to the state" of
Texas, lying within its limits, never became part of the
public domain of the United States, there being an
express provision to that effect in the resolutions passed
by congress for its admission as a state.-^ These lands
have been gradually disposed of, usually by locations
under ''land certificates," these certificates having been
issued for various purposes, as to encourage settlement,
to reward participants in the War of Independence, or
their heirs, and to promote the construction of rail-
roads.^^
The systems and regulations adopted by the various
states in disposing of their public lands have been of
the most diverse character. Usually, however, a war-
rant is issued, either to one entitled as a beneficiary by
some legislative act, or in consideration of the payment
of a sum fixed by law, this warrant authorizing him to
"locate" or "enter" a certain number of acres in the
public domain. The holder of the warrant then selects
his land, and files witli a desiunatod official a description
of the land, this being kno%vn as the "entry." The
lan^ so applied for is then usually surveyed by the
]mblic surveyoi', and, after such survey, and his com-
pliance witli all the other requirements of the statute,
the applicant is entitled to a "patent" or grant from
the state.'-^"*
21. Shiveley v. Bowlby, 152 U. Texas lands is clearly stated in
S. 1, :',8 L. Ed. 331. 1 Dembitz, Land Titles, 5G1 et seq.
22. 5 U. S. Stat. 797. 24. See 2 Minor. Institutes.
23. The mode of dispo.sul of 898; 1 Dembitz, Land Titles, 500;
1560 Keal Propebty. [§ 425
§ 425. Spanish and Mexican Grants. Witliin the
territory ceded to the United States by France, Spain,
and Mexico, there existed, at the time of the cession,
private rights based upon grants previously made by
the nation having dominion therein, and tliese grants
the United States government was, either by express
stipulation in the treaty to that effect, or by provisions
preserving rights of property, required to recognize.
Though the Louisiana territory was purchased from
France, most of the grants made therein before its ces-
sion to the United States' were made by the Spanish, and
not by the French, government, the territory having
passed from the former to the latter but a short time
previously. The grants made within the limits of the
Florida purchase previous to the treaty of cession were
expressly recognized in that treaty.
Before the cession of territory by Mexico to the
United States, numerous grants had been made by
that government from the time of its acquisition of in-
dependence from Spain, early in the nineteenth century.
Grants made before that period w^ere by the Spanish
crowai, acting through the governor or viceroy.
In the performance of its treaty obligations to recog-
nize these prior existing grants of land in the ceded
territory, this government has adopted the policy of
requiring all persons claiming under grants made
previous to the particular cession in question to submit
their claims to examination either by commissioners
named for the purpose, or by the federal courts, and
the claims thus submitted have been the subject of many
adjudications, frequently of an adverse character.
Lands comprised within the limits of the present
state of Texas have been, iii succession, the subject
of grant by the Spanish government, the Mexican
government, the Mexican state of Coahuila and Texas,
the republic of Texas, and the present state of Texas.^^
23 Am, & Eng. Encyc. Law (1st 25. See Republic of Texas v.
Ed.) 53 et seq. Thorn, 3 Tex. 505; Norton v.
§ 426] Transfer by Government. 1561
Grants made by the previous sovereignties have always
been recognized by the present state of Texas.
§ 426. Patents. A patent is a document issued
by the government to one to whom it has. transferred or
agreed to transfer land, in order to vest in the trans-
feree the complete legal title, or to furnish evidence of
the transfer. Patents are regularly issued by the
United States government, and also by the state govern-
ments, to persons who have, by the proper proceedings,
established their right to the ownership of land previ-
ously belonging to the United States or the state. The
patent is, in form, a conveyance of the land, and must,
when issued by the United States, be signed in the name
of the president, and sealed with the seal of the general
land office, and countersigned by the recorder.-*^ A
state patent must usually be signed by the governor,
and sealed with the state seal.-'^
A patent is necessary to pass a perfect title to
public land in all cases except when the legislative
branch of the government has made a grant taking-
effect in praesentiP Consequently, when no such pre-
vious grant has been made, the patent constitutes, and
is necessary for, the transfer of the legal title.-^ When,
on the other hand, there has been a previous grant
taking effect in praesenti, the purpose of the issue of
the patent is not to transfer the title, but to furnish
evidence of the transfer, or to show compliance with
Mitchell, 13 Tex. 51; Jones v. ter 'v. Ruddy, 166 U. S. 495, 41
Muisbach, 26 Tex. 237. L. Ed. 1091.
26. McGarrahan v. New Idria 29. McGarrahan v. New Idria
Min. Co., 96 U. S. 316, 24 L. Ed. Min. Co., 96 U. S. 316, 24 L. Ed.
630. See Rev. St. U. S. § 450. 630; Langdon v. Sherwood, 124
27. See State v. Morgan, 52 u. S. 74, 31 L. Ed. 344; City of
Ark. 150, 12 S. W. 243; Exum v. Brownsville v. Basse, 36 Tex. 500;
Brister, 35 Miss. 391; Hulick v. Roads v. Symmes, 1 Ohio, 281,
Scovil, 9 111. 159; Jarrett v. 13 Am. Dec. 621; Carter v. Ruddy,
Stevens, 36 W. Va. 445, 15 S. E. Kit; u. S. 495, 41 L. Ed. 1091;
445. Wood V. Plttman, 113 Ala. 212,
28. Wilcox V. Jackson, 13 Pet. 20 So. 972.
(U. S.) 498, 10 L. Ed. 264; Car-
1562 Real Pbopeety. [§ 426
the conditions thereof, obviating, in any legal contro-
versy, the necessity of other proof of title.^°
Even when there has been no legislative grant of
the land, the government, upon the payment of the pur-
chase price of land by an individual, and other com-
pliance with the statutory requirements, thereafter
holds the legal title, as any other vendor of land who
has received the purchase money, in trust for the ven-
dee.^ ^ But this mere equitable title will not support an
action of ejectment at common law, and for that puriDoso
the legal title must be acquired by the issue of a
patent.^2 In many of the states, however, it is pro-
vided by statute that certificates issued b}^ the United
States land office, showing the making of final proof and
pajanent, and so entitling the holder to a patent, shall
be prima facie, evidence of title sufficient to support an
action of ejectment.^^ But a distinction is made in this
respect between receipts issued by the land office after
final proof, and receipts issued merely to show that an
application or ''filing" has been made, and the latter
will not, even under these statutes, support ejectment,^*
When there has been a grant taking effect in praesenti,
30. Morrow v. Whitney, 95 U. v. Sherwood, 124 U. S. 74, 41 L.
S. 551, 24 L. Ed. 456; Wright v. Ed. 1091; Seward's Lessee v.
Roseberry, 121 U. S. 488, 30 L. Hicks, 1 Har. & McH. (Md.) 22.
Ed. 1039; Deseret Salt Co. v. Tar- 33. See Balsz v. Liebenow
pey, 142 U. S. 241, 35 L. Ed. 999; (Ariz.) 36 Pac. 209; Surginer v.
Kernan v. Griffith, 27 Cal. 89; Paddock, 31 Ark. 528; Case v.
Lee V. Summers, 2 Ore. 267. Edgeworth, 87 Ala. 203; Whit-
31. Carroll v. Safford, 3 How. taker v. Pendola, 78 Cal. 296. 20
(U. S.) 441, 11 L. Ed. 671; Pac. 680; Davis v. Freeland's
Witherspoon v. Duncan, 4 Wall. Lessee, 32 Miss. 645; Pierce v.
(U. S.) 210. 18 L. Ed. 339; Frace, 2 Wash. St. 81, 26 Pac.
Hussman v. Durham, 165 U. S. 192, 807; McLane v. Bovee, 35
144, 41 L. Ed. 664; Brill v. Stiles, Wis. 27.
35 HI. 305, 85 Am. Dec. 364; 34. Balsz v. Liebenow (Ariz.)
Arnold v. Grimes, 2 Iowa, 1. 36 Pac. 209; Hemphill v. Davis, 38
32. Hooper v. Scheimer, 23 Cal. 577; Dale v. Hunneman, 12
How. (U. S.) 235, 16 L. Ed. 452; Neb. 221, 10 N. W. 711; Adams v.
Gibson v. Chouteau, 13 Wall. (U. Couch, 1 Okl. 17.
S.) 92, 20 L. Ed. 534; Langdon
§ 426]
Transfer by Government.
1563
the grantee may, even without the aid of any statute,
bring ejectment, as having the legal title, though a
patent has not been issued to him.^^
A patent is, as evidence of title, conclusive in a
court of law as against collateral attack, unless it is
invalid on its face for insufficiency of language or
execution, or unless it is void for want of power to issue
it, as when the land had been previously granted, or
was reserved from sale.^'^' In equity, however, a patent,
valid on its face, can, as against others than bona fide
purchasers of the land for value, be attacked, for fraud
in its procurement or mistake in its issuance, either by
the government or by a person otherwise entitled to
the land;''' and if the patent has been issued to one
other than tlie person entitled thereto, he may procure
a decree establishing a constructive trust in his favor,
and requiring the patentee to make a convevanee to
35. Deseret Salt Co. v. Tarpey,
142 U. S. 241, 35 L. Ed. 999;
Nothern Pac. R. Co. v. Cannon
fC. C.) 46 Fed. 224; Southern
Pac. Co. V. Burr, 86 Gal. 279, 24
Pac. 1032; Northern Pac. R. Co.
V. Majors, 5 Mont. 111. 2 Pac.
322.
36. Field v. Seahury, 19 How.
(U. S.) 323. 15 L. Ed. 650; Sher-
man V. Buick, 93 U. S. 209. 23 L.
Ed. 849: Steel v. St. Louis Smelt-
ing & Refining Co.. 106 U. S. 447,
27 L. Ed. 226; Wright v. Rose-
berry, 121 U. S. 488, 30 L. Ed.
1039; Davis' Adm'r v. Weibbold,
139 U. S. 507, 35 L. Ed. 2:i8;
State V. Morgan, 52 Ark. 150, 12
S. W. 243; Moore v. Wilkinson, 13
Cal. 488; Laneenoiir v. Shanklin,
57 Cal. 70: Bledsoe's Devisees v.
Wells, 4 Bibb. (Ky.) 329; State
v. Sioux City & P. R. Co., 7 Nel'.
357; Jackson v. Hart, 12 .Johns.
(N. Y.) 77, 7 Am. Dec. 280; Web-
ster V. Clear, 49 Ohio St. 392, 31
N. E. 744; Norvell v. Camm, 6
Munf. (Va.) 233. 8 Am. Dec. 742;
Jarrett v. Stevens, 36 W. Va. 445,
15 S. E. 177.
37. St. Louis Smelting & Re-
fining Co. v. Kemp, 104 U. S. 636,
26 L. Ed. 875; Sparks v. Pierce,
115 U. S. 408. 29 L. Ed. 428;
Sanford v. Sanford, 139 U. S. 642,
35 L. Ed. 290; United States v.
San Jacinto Tin Co., 125 U. S.
273, 31 L. Ed. 747; United States
V. Missouri, K. & T. Ry. Co., 141
U. S. 358. 35 L. Ed. 766: United
States V. Marshall Silver Min. Co.,
129 U. S. 579, 32 L. Ed. 734; Colo-
rado Coal & Iron Co. v. United
States, 123 U. S. 307, 31 L. Ed.
182; Jackson v. Lawton, 10 Johns.
(N. Y.) 23, 6 Am. Dec. 311; Ro-
niain v. Lewis, 39 Mich. 233,;
Norvell v. Camm, 6 Munf. (Va.)
1564
Real Property.
[§ 426
him."^ The issuance of a patent, however, raises the
presumption that it was validly issued, and one seeking
to set it aside must sustain his averments in that regard
by clear proof.^''
A patent, when issued, dates back, as against in-
tervening claimants, to the time when the equitable
title vested in the patentee by payments of the purchase
price, or otherwise.^®
238. 8 Am. Dec. 742; State v.
Bachelder, 5 Minn. 223 Gil. 178),
80 Am. Dec. 410.
38. Stark V. Starrs, 6 WaU. (U.
S.) 412, 18 L. Ed. 928; Widdi-
combe v. Childers, 124 U. S. 400,
31 L. Ed. 427; Cornelius v. Kes-
sel, 128 U. S. 456, 32 L. Ed. 482:
Bernier v. Bernier, 147 U. S. 242,
37 L. Ed. 152.
39. Maxwell Land-Grant Case,
121 U. S. 325, 30 L. Ed. 949;
Schnee v. Schnee, 23 Wis. 377, 99
Am. Dec. 183; City of Mobile v.
Eslava, 9 Port. (Ala.) 577; 33
Am. Dec. 325.
40. Gibson v. Chouteau, 13
Wall. (U. S.) 92, 20 L. Ed. 5-34;
Hussman v. Durham, 165 IT. S.
144, 41 L. Ed. 664; Waters v. Bush,
42 Iowa, 255; Reynolds v. Ply-
mouth County, 55 Iowa, 90;
Waterman v. Smith, 13 Gal. 419.
See post, § 377, note 76.
CHAPTER XIX.
VOLUNI'ARY TRANSFER INTER VIVOS.
I. Classes of Conveyances.
I 427. Conveyances at common law.
428. Conveyances operating under the Statute of Uses.
429. Conveyances employed in the United States.
430. Quitclaim deeds.
431. Surrender.
432. Conveyances failing to take effect in the manner intended.
II. FoBM AND Essentials of a Conveyance.
433. General considerations.
434. Designation of parties.
435. Words of conveyance.
436. Exceptions and reservations.
437. Rules of construction.
438. Consideration.
439. Reality of consent.
440. Effect of alterations.
III. Description of the Land.
§ 441. General considerations.
442. Description by government survey.
443. Reference to plat.
444. Monuments, courses and distances.
445. Boundaries on water.
446. Boundaries on ways.
447. Sufficiency of description.
448. Appurtenances.
IV. Covenants ior Title.
§ 449. General considerations.
450. Covenant for seisin.
451. Covenant for right to convey.
452. Covenant against incumbrances.
453. Covenants for quiet enjoyment and of warranty.
454. Covenant for further assurance.
455. The measure of damages.
456. Covenants running with the land.
V. ExEcuTio.N OF The Conveyance.
§ 457. Signing.
(1565)
2 R. P.— 24 '
1566 Real Fkoperty. [§ 427
458. Sealing.
459. Witnesses.
460. Acknowledgment.
461. Delivery.
462. Conditional delivery.
463. Acceptance.
464. Execution by agent.
465. Effect of execution — Return or cancellation.
§ 427. Conveyances at common law — Feoffment.
The transfer of land by ''livery of seisin," which has
already been briefly described/ was ordinarily known
as a "feoffment," and the terms were, it seems, used
interchangeably.- The person making the transfer was
known as the "feoffor," and the transferee as the
feoffee." The livery was ordinarily accompanied by
a "charter of feoffment," declaring the limitations of
the estate or estates vested in the feoffee, but the livery
of seisin was alone necessary until the passage of the
Statute of Frauds, which in effect declared that all
estates created by livery of seisin only, or by parol,
and not put in writing and signed by the parties so
making and creating the same, or their agents, should
be estates at will merely.^ This mode of transfer was
available only in the case of estates accompanied by sei-
sin, that is, estates of freehold in possession, and was
not available for the transfer of rights in incorporeal
things.*
Since a feoffment operated on the possession alone,
any person having possession of land, even though, as
in the case of a tenant for years, not legally seised,
could, by feoffment to a stranger, create in the latter
an estate of any quantum; and so one having seisin
as of an estate for life could create in another a greater
estate. Since the effect of such a transfer of seisin was
1. Ante, § 14. Challis, Real Prop. 370. ;
2. Challis, Real Prop. (.3rd Ed.) 4. Sheppard's Touchstone, 228;
362. Williams, Real Prop. 31; 2
3. 29 Car. II. c. 3, § 1. See Co. Blackst. Comm. 314. See ante,
Litt. 48; 2 Blackst. Comm. 313; § 16.
<^ 427] Transfer Inter Vivos. 1567
to operate wrongfully upon the interest of tlie owner
of the reversion or remainder, it was termed a "tort-
ious ' ' conveyance.^
Transfer by feoffment is now in effect obsolete,
though occasionally the theory of such a transfer may
be resorted to for the purpose of upholding a con-
veyance otherwise invalid or ineffective to carry out
the evident purpose of the parties.*' In many states
the statutes expressly dispense with the necessity of
livery of seisin for the conveyance of real property. ''^
Fines and recoveries. Fines and recoveries
were collusive actions brought for the purpose of ef-
fecting a transfer of interests in land not otherwise
transferable. They have been abolished by statute in
England, and in no state of this country are they, it is
believed, in practical use.^ They were for many years
utilized for the purpose of barring estates tail, and
thereby . evading the statute De Bonis Conditionalibus,^
but they were appropriate and necessary for other
purposes, the most important of which was the transfer ■
of land by a married woman, she not being competent
to make an ordinary conveyance.
Grant. A grant was, at common law, made use
of for the transfer of such interests in land as, from
their nature, were incapable of transfer by feoffment,
that is, of which there tonld be no seisin, including all
rights in another's land, or other incorporeal things
real, and also estates in remainder or reversion upon a
free hold estate.^^ A grant always, involved a "deed,"
5. Co. Litt. § 611, and Butler's St. 460.
note; Co. Litt. 251a, 3.30b; Challis, 7. 1 Stimson's Am. St. Law, §
Real Prop. 371. 1470.
6. Witham v. Brooner, 63 111. 8. These proceedings are ex-
.■'.44; Ware v. Richardson, '.', Md. plained in 2 Blackst. Comm. 348.
505; Rogers v. Sisters of Charity 9. Ante, § 28.
97 Md. 556; Hunt V. Hunt, 14 10. Co. Litt. 9b, 49a, 172a; 2
Pick. (Mass.) 374; Carr v. Rich- Blackst. Comm. 317; 2 Sanders,
ardson, 157 Mass. 576, 32 N. E. Uses & Trusts (5th Ed.) 29.
958; Eckman v. Eckman, 68 Pa. See ante, § 16.
1568 Real Propeety. [^ 427
that is, a writing under seal, since no other form of
writing had, at common law, any legal effect. ^^
At conmion law the lord's right to the services of
the tenant, the ''seignory," could not be transferred to
another without "attornment" by the tenant, that is,
acceptance of the new lord. The same principle applied
in the case of the grant of a reversion, it not being
valid unless the tenant attorned to the grantee.^- The
necessity of attornment was, as before stated, abolished
in England by 4 Anno, c. 16 § 9, and is no longer recog-
nized in this country. ^^
Lease. A lease is a conveyance of an estate
for life, for years, or at will, by one who has a greater
estate. At common law, if the estate conveyed was for
life, livery of seisin was required,^^ but if for years
or at will merely, an oral lease without livery was
sufficient. ^^ By the Statute of Frauds, a writing was
rendered necessary for the creation of an estate for
years, excepting certain leases not exceeding three
years from the making thereof. ^"^ But, even at common
law, a lease for years of an incorporeal thing was in-
valid unless in writing and under seal, since such a
thing lay in grant for all purposes, and no other method
of transfer thereof was recognized.^^ The form and re
quisites of a lease have been previously considered, in
connection with the subject of estates for years. ^'^^
Release. A conveyance by release is a con-
veyance of an estate or interest in land to one who has
possession of the land or a vested estate therein. It
11. Co. Litt. 172a; Slieppard's 2 Piatt, Leases, 1.
Touchstone, 229; 1 Hayes, Convey- 16. 29 Car. II. c. 3, §"§ 1, 2
ancing (5th Ed.) 25; 2 Sanders, 17. Co. Litt. 85a; Tottel v
Uses & Trusts (5th Ed.) 41. Howell, Noy, 54; 14 Vin. Abr. tit
12. Litt .§§ 551, 567, 568; Co. "Grant" (Ga.); Sheppard's Touch
Litt. 309a, Butler's note. stone, 26T; Somerset v. Fogwell
13. See ante, §§ 53 (a). 5 Barn. & C. 875; Bird v. Hig
14. 2 Blackst. Comm. 318. ginson, 2 Adol. & E. 696.
15. Sheppard's Touchstone, 267; 17a. Ante, i 42.
§ 427] Tbansfer Intee Vivos. 1569
was utilized, at. common law, in cases in which the per-
son to whom the conveyance was to be made was
already in jDossession, so that no livery of seisin could
be given unless he should first quit possession, which
w^ould have involved an idle multiplication of cere-
monies.^^ A release may be made to the tenant of a
life estate by the owner of the reversion or remainder
thereon, whether the life estate be one created by act
of the parties, ^^ or one created by act of the law, such as
as estate of dower or curtesy,^*^ the life estate being en-
larged by the release to a fee simple or fee tail. A
release may also be made by the owner of the reversion
to the tenant of an estate for years or at will,-^ but
not to a tenant at sufferance.-- Eeleases thus made by
a reversioner or remainderman to the particular tenants
are said by the common law writers to enure by way
of enlargement of the estate {enlarger V estate). ^^ A
mere interesse termini, that is, the right of a lessee who
has not yet entered under his lease, does not entitle him
to take a release by way of enlargement,-^ it being
necessaiy that the lessee be in actual possession, or in
legal possession by force of the Statute of Uses.^^
A release, in order to enlarge the particular estate to
one of inheritance, must, at common law, contain the
word "heirs," as in the case of a conveyance between
strangers.^"
A release mav also be made, not by way of en-
largement of an estate, but by way of passing an estate
{mitter Vest ate), as when one joint tenant or coparcener
releases his estate to his cotenant. In this case, words
of inheritance have never been required, since the per-
son to whom the release is made is regarded as already
seised of the freehold, and the release is merely a
18. 2 Pollock & Maitland, Hist. 22. Co. Litt. 270b.
Eng. Law. 90. 23. Litt. § 465; Challis, Real
19. Co. Litt. 273b. Prop. 409.
20. 2 Sanders, Uses & Trusts 24. Litt. § 459; Co. Litt. 270a.
(5th Ed.) 73. 25. See ante, § 100.
21. Litt §§ 460, 46.-.. 20. Litt. § 465; Co. Litt. 273b.
1570 Eeal Pkopekty. [§ 427
discharge from the claim of another seised under the
same title.-' A release was never regarded as suf-
ficient to pass the interest of one tenant in common to
another, since they are regarded as having distinct
freeholds.^*
A third mode of operation of a release is by way
of "extinguishment" of an interest in another's land,
as when the owner of a rent, a right of profit, or an
easement, releases his rights to the owner of the
land subject thereto.-^ The only other modes of opera-
tion of release at common law occurred in the case of
a release, by one disseised, of all his right or claim in
favor of the disseisor, or of his heir or feoffee, this
being known as a "release by way of passing the
right" {mitter le droit). ^^
A release must, at common law, be by deed, that
is, by writing under seal.^^
Strictly speaking, at the present day, as at com-
mon law, a release cannot be made to one having
neither possession of the land nor a vested estate there-
in,^^ but a conveyance purporting to be a release will
almost invariably be upheld as a conveyance by bar-
gain and sale or grant.^^
Assignment and surrender. The term ' ' assign-
ment" in connection with the law of land, is commonly
applied to the transfer of a chattel interest.^^ At com*
27. Co. Litt. 273b, and Butler's M. (Miss.) 130.
note. 33. Baker v. Whiting, 3 Sumn.
28. 4 Cruise, Dig. tit. 32, c 6, § 475, Fed. Cas. No. 787; Conn's
25; 2 Preston, Abstracts, 77. Heirs v. Manifee, 2 A. K. Marsh
29. Litt. § 480; Co. Litt. 280a. (Ky.) 396, 12 Am. Dec. 417; Pray
30. Litt. § 466; 4 Cruise, Dig. v. Pierce, 7 Mass. 381, 5 Am. Dec.
tit. 32, c. 6, § 26. 59; Havens v. Sea Shore Land
31. Co. Litt. 264b; 2 PoUock & Co., 47 N. J. Eq. 365, 20 Atl. 497;
Maitland, Hist. Eng. Law, 91. Lynch v. Livingston, 6 N. Y. 422;
32. Runyon v. Smith, (C. C.) Hall's Lessee v. Ashby, 9 Ohio
18 Fed. 579; Branham v. City of 96, 34 Am. Dec. 424. See Ely v.
San Jose, 24 Cal. 585; Warren v. Stannard, 44 Conn. 528.
Childs, 11 Ma^. 222. Compare 34. 2 Blackst. Comm. 326; 4
Sessions v. Reynolds, 7 Smedes & Cruise, Dig. tit. 32, c. 6 § 15.
§ 427] Teansfee Inter Vivos. 1571
moil law, an assignment of such an interest in land, as
distinguished from an interest in an incorporeal thing,
might be made without writing,"'' but by the Statute
of Frauds^^' a writing signed by the assignor, or by his
agent authorized in writing, is required. The question
of the right of a tenant to make an assignment of
his leasehold interest, and that of when a transfer by
him constitutes an assigTiment and when a sublease,
have been previously considered.'^'
That class of conveyance known as surrender, in-
volving the transfer of a particular estate to the re-
versioner or remainderman, though recognized at
common law, is frequently the subject of adjudication at
the present day, and will be most conveniently dis-
cussed in a subsequent section apart from the other
common law conveyances.^*
Exchange. An excliange is a mutual convey-
ance of equal. interests in distinct pieces of land. At
common law, if both pieces of land lay in the same
county, the exchange might be oral, while, if situated
in different counties, a deed was required.'*'^ But, by
the Statute of Frauds, a writing is necessary on the
exchange of freeholds or of terms for years other than
certain terms for three years or less.^^^ No livery of
seisin was necessary at common law, but each party
to the exchange was required to enter while both were
alive.^^
A common-law exchange could not be effected unless
the estates of the respective parties were of the same
legal quantum; — that is, an estate in fee simple could be
35.- 4 Cruise, Dig. tit. 32, c. 6, 39. Litt. §§ 62, 63; Co. Litt.
§ 20. .50a.
36. 29 Car. 2, c. 3, S 3. As to 40. 29 Car. II. c. 3, §§ 1-3;
the various state statutes bear- Co. Litt. 50a, Butler's note. See
ing on the form of an assignment. Dowling v. McKenney, 124 Mass.
see 1 Tiffany, Landlord & Ten. § 478; Cass v. Thompson, 1 N. H.
154. 65, 8 Am. Dec. 36; Rice v. Peet,
37. Ante, §§ 54, 55. 15 Johns. (N. Y.) 503.
38. Post, § 431. 41. Co. Litt. 50b.
1572 Real Property. [§ 428
exchanged only for an estate of the same character,
an estate for twenty years only for an estate for
twenty years, and so on.^^ xiie word ''exchange" was
required to be used, and no other expression would
supply its place.*^ A common-law exchange, answering
to the foregoing requirements, probably never occurs
in modern practice.
§ 428. Conveyances operating under the Statute of
Uses. The Statute of Uses, as has been previously ex-
])lained, gave rise to two entirely new methods of trans-
ferring legal estates in land, to-wit, the conveyance by
''bargain and sale," and that by "covenant to stand
seised;" the former being based upon a use raised in
the intended transferee by the payment of a pecuniary
consideration, usually merely nominal, and the latter
being based on the declaration of a use in favor of one
related by blood or marriage, the statute executing the
use in both cases.^* One effect of this statute was to
enable the owner of land, by a mere contract of sale
and the payment to him of a pecuniary consideration,
to vest the legal title in another, without any writing or
ceremony whatever, and with absolute secrecy, and
to prevent such secret conveyances by bargain and sale
a statute was passed in the same year, called the
"Statute of Enrollments,"^^ requiring all bargains and
sales of freehold interests, in order to be valid, to be
made by deed, that is, writing under seal, enrolled
in couii; or with certain officials. The statute did not
apply to conveyances by covenant to stand seised.
42. Litt. §§ 64, 65; Co. Litt. 36; Dean v. Shelly, 57 Pa. St.
51a; 2 Blackst. Comm. 323: Anony- 426, 98 Am. Dec. 235; Windsor
mous, 3 Salk. 157; Windsor v. v. Collinson, 32 Or. 297.
Collinson, 32 Ore. 297; Long v. 44. See ante, § 100.
Fuller, 21 Wis. 121. 45. 27 Hen. VIIL c. 16 (A. D.
43. Co. Litt. 51b; 2 Blackst. 1535). See 2 Sanders, Uses &
Comm. 323; Eton College v. Win- Trusts (5th Ed.) 64; Digby, Hist.
Chester, 3 Wils. 468; Cass v. Law Real Prop. (4th Ed.) 364.
Thompson, 1 N. H. 65, 8 Am. Dec.
§ 428] Transfer Inter Vivos. 1573
This statute is probably not in force in any state.^^
Clandestine conveyances by bargain and sale being thus
prevented by the Statute of Enrollments, conveyancers,
soon after the statute, devised the conveyance by
'* lease and release," taldng advantage of the fact that
the statute required the enrollment of bargains and
sales of ' 'freehold" interests only. This conveyance,
as before explained, consisted of a bargain and sale of
a leasehold interest to the intended grantee, which
vested him with the legal possession, and this was
followed by a deed of release of the reversion remaining
in the former owner.^"
A conveyance by covenant to stand seised is
usually said to be based upon the consideration of
blood or marriage.'*''''^ But in such case the word con-
sideration is used, not in its technical sense of the
equivalent for a promise, but in the sense of motive or
inducement for the agreement to stand seised. "The
exception in favor of those related by blood or marriage
had in truth nothing to do with the doctrine of con-
sideration and was established in the interest of the
46. See Givan v. Tout, 7 Blackf. Gray, Peripetuities, § 57. The
(Ind.) 210; Marshall v. Fisk, 6 same view is adopted in Jackson
Mass. 24, 4 Am. Dec. 76; Chandler v. Dunsbaugh, 1 Johns. Gas. 92. It
V. Chandler, 55 Cal. 267; Givan v. is asserted in support of this
Doe, 7 Blackf. (Ind.) 210; opinion view that previous to the stat-
of Justices, 3 Binn. (Pa.) 595. ute of enrollments a covenant to
Compare Underwood v. Campbell, stand seised could be supported
14 N. H. 393. by a pecuniary consideration, and
47. 1 Hayes, Conveyancing, that after that statute the con-
(5th Ed.) 76. See ante. § 100. trary view was adopted merely to
47a. That a consideration of prevent the statute being nulli-
blood or marriage is necessary, fied by regarding conveyances
see post, this section, notes 49- which were in their nature deeds
51, 63. In Massachusetts the view of bargain and sale as covenants
has been asserted that a covenant to stand seised. But covenants
to stand seised may be supported to stand seised apipear not to
by a pecuniary consideration. have been recognized previous to
Trafton v. Hawes, 102 Mass. 533, the Statute of Enrollments. Pro-
3 Am. Rep. 494; Ricker v. Brown, fessor Ames says that Sharington
183 Mass. 424, 67 N. E. 3.53. See v. Strotton, Plowd. 298 (anno
].574 Real Property. [§ 428
great English families. "^^ What degree of relationship
is sufficient to support a conveyance of this character
appears to have been but little discussed, and no
restriction in this regard has been asserted, a covenant
to stand seised in favor of a nephew or cousin being-
regarded as valid,^^ as is no doubt one in favor of a
grandchild.^*^ As regards connection by marriage, it
would seem to be necessary that the beneficiary be the
wife, or perhaps the husband, of one wdio is within the
necessary degree of blood relationship, so that such
a conveyance by A to his daughter-in-law or to his
cousin's wife would be valid, but not such a conveyance
by one of the latter to A.^^ This is by reason of the
fact that this form of conveyance was upheld merely
to enable one to perpetuate and make provision for his
or her own family, and while a conveyance to the wife
of one's relative might conduce to this end, a con-
veyance to a relative of one's wife could not so operate.
The valuable consideration necessary to support a
conveyance by bargain and sale is either money or
money's worth.^- It involves ordinarily the idea of
a benefit to the grantor, but presumably a mere detri-
ment to the grantee would be sufficient for this pur-
pose as it is to support an executory contract. A
mere promise on the part of the grantee, as to pay
money^^ or to support the grantor^* is sufficient, and a
1565) "was the first case of this covenant to stand seised in favor
kind." See 21 Harv. Law Rev. at of a son in law or daughter in
p. 269, Lectures on Legal History. law is valid see also, Gale v.
p. 241. Coburn, 18 Pick. (Mass.) 397;
48. Prof. J. B. Ames in 21 Bell v. Scammon. 15 N. H. 381,
Harv. Law Rev, at p. 269, Lee- 41 Am. Dec. 706; Contra, Corwin
tures on Legal History, p. 241. v. Corwin, 9 Barb. 219 6 N. Y.
49. Sugden's Gilbert on Uses, 342.
93; Sheppard's Touchstone, 511. 52. 2 Preston, Conveyancing,
50. See Hansom v. Buckner, 4 373; Jackson v. Pike, 9 Cow. (N.
Dana (Ky.) 251; Stovall v. Bar- Y-.) 69; Redmond v. Cass, 226 111.
nett, 4 Litt. (Ky.) 207. 120.
51. See the full discussion by 53. 2 Sanders, Uses & Trusts
White, J., in Thompson v. Thomp- (5th Ed.) 56.
son, 17 Ohio St. 649. That a
§ 429] Tbansfer Inter Vivos. 1575
mere condition subsequent in the conveyance, calling
for the performance of some act by the grantee, has
apparently been so regarded,^^ as has a reservation
of a rent, of either substantial or nominal value.^^ Mar-
riage is also a valuable consideration, in the sense that
a bargain and sale to one in consideration of his
intended marriage with one of the grantor's family is
valid.^^
§ 429. Conveyances employed in the United States.
In most of the states of this country there are statutory
provisions authorizing the transfer of land by simple
forms of conveyance,^* which, in their operation, much
resemble the common-law "grant," except that they
are not confined to incorporeal things. The same pur-
pose of simplification of conveyancing has in England
been attained by a statute providing that all corporeal
tenements and hereditaments shall, as regards the con-
veyance of the immediate freehold thereof, be deemed
to lie in grant, as well as in livery.^^ Conveyances b}'
way of bargain and sale have, however, been in fre-
quent use in this country,*"^ and, even in states where
there are statutory provisions of the character referred
to, the words "bargain and sell" are ordinarily used
in a conveyance. In such states, in fact, it is difficult,
and for most, if not all, purposes, unimportant, to say
54. Young V. Ringo, 1 T. B. the thorough discussion of the
Men. (Ky.) 30; Spalding v. Hal- local law of the different states
lenbeck, 30 Barb. (N. Y.) 292. in this regard by Professor John
55. Stonley y. Bracebridge, 1 R. Rood, in 4 Mich. Law Rev. 109.
Leon. 6; Exum v. Canty, 34 Miss. 59. "Real-Property Act," St. 8
533; Castleton v. Langdon, 19 Vt. & 9 Vict. c. 106, § 2 (A. D. 1845),
210. 60. See Pascault V. Cochran (C.
56. Barker v. Keate, 2 Mod. C.) 34 Fed. 358; Givan v. Tout, 7
253. Black'f. (Ind.) 210; Nelson v.
57. Sugden's Gilbert on Uses, Davis, 35 Ind. 474; Chiles v. Con-
91; Arnold v. Estis, 92 N. C. 162; 'ey's Heirs, 2 Dana (Ky.) 21;
Thompson v. Thompson, 17 Ohio Sanders v. Hartzog, 6 Rich. (S. C.)
St. 649. '*'^^; Holland v. Rogers, 33 Ark.
r.8. 1 Stimson's Am. St. Law, S ^51; Stewart v. Stewart. 171 Ala.
1480-H82. And see particularly 485, 54 So. 604; Bronston's Adm'r
1576 Reax, Property. [§ 430
whether a particular conveyances operates by force of
the Statute of Uses or under the local statute. In
order, however, that a conveyance be regarded as taking
effect by way of bargain and sale, it must, as was be-
fore stated, be supported by a valuable consideration,
either actual or expressed.^^
Conveyances by way of covenant to stand seised
have been recognized in this country ,'^2 but, since a con-
sideration of blood or marriage is necessary,^^ there is
but little opportunity for their employment. Even when
the proper consideration does exist, a conveyance in
form under the local statute, or by way of bargain and
sale, with a recital of a pecuniary consideration, would
usually be employed.
Conveyances by lease and release have never been
employed to any extent in this country, since the
Statute of Enrollments, which constituted the reason
for their use in England, is not in force here.
§ 430. Quitclaim deeds. There is, in this country, a
well-recognized class of conveyances, known as **quit-
V. Bronston's Heirs, 141 Ky. 639, (N. Y.) 85; Ward v. Wooten. 75
133 S. W. 584. N. C. 413; Sprague v. Woods, 4
61. Corwin v. Corwin, 6 N. Y. Watts & S. (Pa.) 192; Fisher v.
342, 57 Am. Dec. 453; Wood v. Strickler, 10 Pa. St. 348, 51 Am.
Chapin, 13 N. Y. 509, 67 Am. Dec. Dec. 488; Watson v. Watson, 24
62; Lambert v. Smith, 9 Ore. 185; S. C. 228. 58 Am. Rep. 247; Barry
Den d. Jackson v. Hampton, 30 v. Shelby, 4 Hayw. (Tenn.) 229.
N. C. 457; Gault v. Hall, 26 Me. 63. Rollins v. Riley, 44 N. H.
561; Boardman v. Dean, .^.4 Pa. 9; Jackson v. Caldwell, 1 Cow. (N.
St. 252. Y.) 622; Gault v. Hall, 26 Me.
That the recital of the consider- 561; Thompson v. Thompson, 17
ations is conclusive for the pur- Ohio St. 649; Doe d. Cobb v. Hines,
pose of supiporting the conveyance 44 N. C. 343. 59 Am. Dec. 559;
as a bargain and sale, see post, § Eckman v. Eckman, 68 Pa. St.
438, note 75. 460; 2 Sanders, Uses & Trusts 5th
62. Murray v. Kerney, 115 Md. Ed. 98; Contra in Massachusetts.
514, 38 L. R. A. (N. S.) 937, See ante, this section, note 47a.
81 Atl. 6; Merrill v. Publishers' 64. See, as to the early use of
Paper Co., 77 N. H. 285, 90 Atl. the word "quitclaim," 2 Pollock
786; .Tackson v. Swart, 20 Johns. & Maitland, Hist. Eng. Law. 91.
§ 430] Transfer Inter Vivos. 1577
claim deeds," which are to some extent a development
of the common-law release, and which have acquired
their name from one of the words ordinaril}^ used in
the latter instrument.^^ Such a conveyance purports
merely to convey whatever title to the particular land
the grantor may have, and its use excludes any implica-
tion that he has a good title, or any title at all/''
Accordingly, as a general rule, it contains no covenants
for title, and its employment is, in some states, re-
garded as in itself notice to the purchaser of possible
defects in the title, so that he cannot claim to occupy
the position of a bona fide purchaser.*'^ Such a con-
veyance, moreover, is not regarded as transferring an
after acquired title on the principle of estoppel/'''' A
quitclaim deed, how^ever, is sufficient in itself to pass
the grantor's existing title to the same extent as a
deed of grant or bargain and sale,^^ and its validity
is not, like the common-law release, dependent upon the
existence of an estate or interest in the grantee/^ The
question w^hether a conveyance is a mere quitclaim is
determined by a construction of the instrument as a
whole, with reference to the circumstances under
65. City & County of San Fran- Dutton, 79 111. 466; Callahan v.
Cisco V. Lawton, 18 Cal. 465, 79 Davis, 90 Mo. 78, 2 S. W, 216;
Am. Dec. 187; Kerr v. Freeman, Landes v. Brant, 10 How. (U. S.)
33 Miss. 292; Emmel v. Headlee 372, 13 L. Ed. 460; French's
(Mo.) 7 S. W. 22; Coe v. Persons Lessee v. Spencer, 21 How. (U. S.)
Unknown. 43 Me. 432; Garrett v. 228, 16 L. Ed. 97.
Christopher, 74 Tex. 4.'"j3, 15 Am. 68. Bradbury v. Davis, 5 Colo.
St. Rep. 850, 12 S. W. 67. 265; Kyle v. Kavanaugh, 103 Mass.
66. See j)OHt. S 5r.7(m). :;56; Grant v. Bennett, 96 111. 513;
67. Post, § 545(b). Wilson v. Albert, 89 Mo. 537, 1
Since a government patent, S. W. 20fi; Mclnerney v. Beck, 10
when issued, relates back to the Wash. 515, 39 Pac. 130. So by
date of the entry, it enures to the statute in some states. See Hoff-
benefit of one to whom the man v. Harrington, 28 Mich. 90;
patentee has, since the entry, con- Kerr v. Freeman, 33 Miss. 292.
veyed the land, even though by a 69. Spaulding v. Bradley. 79
"quitclaim" purporting to convey Cal. 449, 22 Pan. 47; Kerr v. Free-
merely such title as he has. Crane man, 33 Miss. 292.
v. Salmon, n Cal. 63; Welch v.
1578 Real Property. [§ 431
which it was given.'*' It may be said, however, that
the cases do not appear to be entirely consistent as to
the criteria controlling in the matter.'^
§ 431. Surrender. That character of conveyance
known as ''surrender" was fully recognized at common
law and might accordingly have been properly dis-
cussed in the previous section dealing with conveyances
at common law. In view however of the practical im-
portance of the law of surrender it has appeared to
be expedient to devote a separate section thereto.
"Surrender" has been defined as a yielding up
of an estate for life or years to him that hath an im-
mediate estate in reversion or remainder, wherein the
estate for life or years may drowTi by mutual agree-
ment between them."'^^ Unfortunately, this technical
meaning of the word, as referring to the transfer of
an estate, has been somew^hat obscured by its frequent
use in an untechnical sense, as referring to the re-
linquishment or yielding up, not of an estate, but of the
physical possession of the premises, as when the lessee
covenants to "surrender" the premises in good con-
dition at the end of the term, and the courts frequently
fail clearly to distinguish between such a surrender
of possession and a surrender, properly so called, of
an estate for life or j^ears. Quite frequently, in using
70. See United States v. Call- Cummings v. Dearborn, 56 Vt.
fornia & Oregon Land Co., 148 U. 441.
S. 31, 37 L. Ed. 354; Derrick 71. See post, § 567(m).
V. Brown, 66 Ala. 162 Reynolds That the word "quitclaim" is
V. Shaver, 59 Ark. 299; Morrison used does not in itself show that
V. Wilson, 30 Cal. 344; Wightman the conveyance is legally a quit-
V. Spofford; 56 Iowa, 145; Taylor claim deed. Hitt v. Caney Fork
V. Harrison, 47 Tex. 454, 26 Am. Gulf Coal Co., 124 Tenn. 93, 139
Rep. 304; Nichols v. Schmitton, S. W. 693; Garrett v. Christopher,
107 Tex. 54, 174 S. W. 283; Cook 74 Tex. 453, 15 Am. St. Rep. 850,
v. Smith, 107 Tex. 119, 174 S. 12 S. W. 67.
W. 1094; Baldwin v. Drew, — - 72. Co. Litt. 337b. See 2 Piatt,
(Tex. Civ.) --, ISO S. W. 614; Leases, 499; Comyn, Landl. &
Ten. 336.
§ 431] Teansfeb Inter Vivos. 1579
the term even in its technical sense, a surrender "of
the lease" is spoken of, but this must be understood as
merely an elliptical expression signifying a surrender
of the estate created by the lease.
The courts occasionally refer to the "rescission"
or '' cancellation" of the lease by the parties to the
tenancy, without apparently recognizing that a termina-
tion of the tenancy as a result of an agreement of tlie
parties, made subsequently to its creation, necessarily
involves the divesting of a leasehold estate out of the
lessee, or his assignee, and a revesting thereof in the
landlord.''^^ After an estate, whether in fee simple or
for life or for years, has been conveyed, the grantor and
grantee in the conveyance cannot effect a reconveyance
of the estate to the former by undertaking to "rescind"
or "cancel" the original conveyance.^"* The parties
to a contract can rescind or cancel the contract, that
is, they can make a new contract by which each agrees
to forego his rights under the previous contract, but
the mere making of a new contract can never transfer
property rights even to a person in whom they were
formerly vested. Any rescission or -cancellation, so
called, of a lease, by the parties thereto, must con-
sequently, in order to terminate the tenancy, constitute
in legal effect a surrender, and must satisfy the re-
quirements existing with reference to such a mode of
convey ance.'^^*
In order that a surrender may be effected, the
estate surrendered must be no greater in quantum
that the estate of the surrenderee, since otherwise it
cannot merge therein.''' And furthermore it must
73. See Silva v. Bair, 141 Cal. 94 N. W. 431; Snyder v. Ilard-
599, 75 Pac. 162; Alschuler v. ing, 34 Wash. 286, 75 Fac. 812.
Schiff, 164 in. 298, 45 N. E. 74. Post, § 465.
424; Evans v. McKanna, 89 Iowa 74a. Post, this section, note
362, 8 Am. St. Rep. 390, 56 80.
N. W. 527; Andre v. Graebner, 75. 3 Preston, Conveyancing,
126 Mich. 116, 85 N. W. 464; 166 et seq.
Geddis v. Folliett, 16 S. D. 610,
1580 Real Property. [§ 431
immediately precede the latter estate as regards the
right of possession, with no vested estate intervening.'^'^
Consequently if A leases to B for years and B leases to
C, the subtenant C cannot surrender to A, and if
property is devised to A for life, with remainder to
B for life, with remainder to C in fee, A cannot, though
B can, surrender to C.
Express surrender. Surrender may be either
''express" or "by operation of law." At common law
an express surrender, in the ordinary case, could be
made orally,''^ but this was changed by the provision
of the English Statute of Frauds that a surrender, if
not by act and operation of law, must be in writing,
signed by the surrenderor or his agent, and there are
in most of the states statutes to a similar effect.'^*
Before the Statute of Frauds the cancellation of
an instrument of lease was regarded as equivalent to
an oral surrender, and valid as such,'^^ but this is no
longer the case.*"' As elsewhere stated,^^ the cancella-
tion of an instrument of conveyance, after its delivery,
does not have the effect of revesting in the maker the
estate conveyed thereby, and this is as true of a con-
veyance by way of lease for a terra of years as of a
conveyance in fee simple.
While the words "surrender, grant and yield up"
are ordinarilj^ used in a formal instrument intended to
take effect as a surrender, no particular words are
necessary, it being sufficient that an intention to trans-
fer the leasehold interest to the reversioner clearly
appears.^- Accordingly, an instrument in form a lease
76. Except when an estate for Gilb. Eq. Cas. 235.
years is interposed between two 80. Roe d. Berkley v. Arch-
freeliold estates. Id. 107, and bishop of York, 6 East 86; Doe
ante, § 34. d. Courtail v. Thomas, 9 Barn.
77. Co. Litt. 338a; Sheppard's & C. 288; Rowan v. Lytle, 11
Touchstone 300. Wend. (N. Y.) 616.
78. See 2 Tiffany, Landlord 81. Post, § 465.
& Ten., § 189a. 82. Farmer v. Rogers, 2 Wils.
79. Magennis v. Mac Cullogh, 26; Shepard v. Spaulding, 4
§ 431] Transfer Inter Vivos. 1581
of the premises by the tenant to the landlord has been
regarded as sufficient as a surrender,'*" as has
what was in terms an "agreement" for the relin-
quishment of tlie leasehold, it being intended to take
effect as a surrender,^"* Apparently, in England, where
a mortgage transfers the legal estate to tlie mortgagee,
a mortgage of the leasehold by the tenant to his land-
lord would take effect as a surrender ,'"•'• l3ut such a
result could not follow in any juiisdiction where a
mortgage does not transfer the legal title."*'
Surrender by operation cf law. A surrender
by "act and oi)eration of law," which is expressly ex-
cepted from the Statute of Frauds, is a surrender
which the law infers from certain acts by the parties
as being inconsistent with the continued distinct px-
istenee of the two former estates. Occasionall}^ the
theory appears to be asserted that surrender by opera-
tion of law takes place because the acts of the parties
show an intention or agreement that the leasehold
estate shall be surrendered;^" but it is somewhat difficult
to regard a surrender as taking place by operation of
law when it results from the agreement or intention
Mete. (Mass.) 416; Greider's Ap- ing Ass'n, 106 111. 221, 46 N. E.
peal, 5 Pa. St. 422, 47 Am. Dec. 752; Talbot v. Whipple, 14 Allen
413. (Mass.) 177; Tobener v. Miller,
83. Loyd v. Langford, 2 Mod. 68 Mo. App. 569; Meeker v.
174; Smith v. Mapleback, 1 Spalsbury, 66 N. J. Law 60,
Term R. 441; Shepard v. Spauld- 48 Atl. 1026; Home Coupon fix-
ing, 45 Mass. (4 Mete.) 416. change Co. v. Goldfarb, (N. J.
84. Harris v. Hancock, 91 N. Eq.) 74 At. 14.!; O'Neill v.
Y. 340; Allen v. .laquish, 21 Pear.se, 88 N. J. L. 733. 96 Atl.
"Wend. (N. Y.) 628. 1102, affirming 87 N. J. L. 382,
85. See Cottee v. Richardson, 94 Atl. 312; Bedford v. Ter-
7 Exeh. 143. hune, 30 N. Y. 453, 86 Atl. 394;
80. See Breeae v. Bange, 2 Hart v. Pratt, 19 Wa.sh. 560, 53
E. D. Smith N. Y.) 474. Pae. 711.
87. See e. g. Beall v. White, And see cases cited this sec-
94 U. S. 382, 24 L. Ed. 173; tion. post note 93.
Brewer v. National Union Build-
R. P.— 25
1582
Real Propee,ty.
[§ 431
of tlie parties, even tlioiigh this is shown by acts rather
than by words. ^^
A surrender by operation of law occurs when the
tenant accepts from the reversioner a new lease, to be-
gin immediately, or at any time during the existence
of the previous lease; this result being based on the
theory that, by such acceptance, the tenant is estopped
to deny the validity of such new lease, which neverthe-
less cannot be valid unless the first lease is terminated.*^
The new lease must, it seems, be sufficient to pass an in-
terest according to the intention and contract of the pav-
ties,^*^ but the fact that the new lease is oral is imma-
terial if an oral lease is sufficient to create the interest
intended to be created.^^ Since the surrender in such case
is by operation of law, it might be considered as takings
place even contrary to the intention of the parties.^-
88. So in Felker v. Richard-
son, 67 N. H. 509, 32 Atl. 830, it
is said, per Carpenter, J., "A
surrender by agreement, whether
express or implied, is the act, not
of the law, but of the parties. To
constitute a surrender by opera-
tion of law, overt acts of both
parties inconsistent with the con-
tinuance of the term are essen-
tial." But see Professor Aigler's
note in 15 Mich. Law Rev. 659,
and the article there referred to
in 5 Irish Jurist, 117, also Editor-
ial note 28 Harv. Law Rev. 313.
89. Lyon v. Reed, 13 Mees. &
W. 285; Otis v. McMillan, 70 Ala.
46; Welcome v. Hess, 90 Cal. 507.
27 Pac. 369; Flagg v. Dow, 99
Mass. 18; Bowman v. Wright, 65
Neb. 661. 91 N. W. 580; Schief-
felin V. Carpenter, 15 Wend (N.
Y.) 400; Edwards v. Hale, 37
W. Va. 193, 16 S. E. 487.
Acceptance by the tenant from
the landlord of an interest other
than an estate for years, if in-
consistent with the former ten-
ancy, has likewise been regarded
as effecting a surrender by oper-
ation of law, as when "a lessee
for years accepts a grant of a
rent, common, estovers, herbage,
or the like, for life or years, out
of the same lands." Bac. Abr.,
Leases (S.) 2, 1. See 2 Tiffany,
Landlord & Ten. § 190 b (2).
90. Doe d. Biddulph v. Poole,
11 Q. B. 713; Zick v. London
United Tramways Ltd., (1908)
2 K. B. 126; Schiefflin v. Car-
penter. 15 Wend. (N. Y.) 400; Coe
v. Hobby, 72 N. Y. 141. 28 Am.
Rep. 120.
91. Comyn's Dig. "Surrender,"
(Tl); Fenner v. Blake, (1900), 1
Q. B. 426; Evans v. McKanna, 89
Iowa, 362, 48 Am. St. Rep. 390,
56 N. W. 527; Schiefflin v. Car-
penter. -5 Wend. (N. Y.) 400; Coe
V. Hobby. 72 N. Y. 141, 28 Am.
Rep. 120.
92. See Lyon v. Reed, 13 Mees.
& W. 285; Brown v. Cairns, 107
-§431] Tkansfer Intek Vivos. 158o
Occasionally, however, a different view has l>een taken,
that the new lease merely raises a presumption of
surrender, capable of rebuttal by evidence that the
intention was otherwise.^^
The question has occasionally arisen whether an
assignee of the lessee, by reason of his recognition by
the landlord as tenant of the premises, can be regarded
as holding under a new lease, so as to effect a sur-
render of the estate created by the original lease, and
consequently to put an end to the liability of the
original lessee on account of rent. The cases are
generally to the effect that the mere acceptance of
rent from the assignee does not involve a new lease,
so as to effect a surrender,^* and it is difficult to see
how any other view could be adopted. The assignee is
bound to pay the rent, an'd the acceptance of payment
from him involves merely the recognition of a liability
already existing.^^
A second mode of surrender by operation of law,
and one which frequently occurs, results from the re-
lowa, 727, 77 N. W. 478; Enyeart (Mass.) 337; Detroit Pharmacal
V. Davis, 17 Neb. 228, 22 N. W. Co. v. Burt. 124 Mich. 220, 82
449. N. W. 893; Rees v. Lowry, 57
93. Flagg V. Dow, 99 Mass. 18 Minn. 381, 59 N. W. 310; Ed-
(semble) ; Thomas v. Zumbalen. wards v. Spalding, 20 Mont. 54,
43 Mo. 471; Brown v. Linn 49 Pac. 443; Bouscaren v. Brown,
Woolen Co., 114 Me. 266, 95 Atl. 40 Neb. 722, 42 Am. St. Rep. 692,
1037; Smith v. Kerr, 108 N. Y. 59 N. W. 385; Creveling v. De
31, 2 Am. St. Rep. 362, 15 N. E. Hart, 54 N. J. Law 338. 23 At.
70. See Editorial note 22 Harv. 611: Laughran v. Smith, 75 N.
Law Rev. 55. Y. 205; Frank v. McGuire, 42 Pa.
94. Bonetti v. Treat, 91 Cal. 77; Adams v. Burke, 21 R. L
233, 13 L. R. A. 418. 27 Pac. 612; 126, 42 At. 515; Granite BIdg.
Triest & Co. v. Goldstone, 173 Cal Corp. v. Rubin, 40 R. I. 208, 100
240, 159 Pac. 715; Cuesta v. Gold- Atl. 310; Johnson v. Norman, 98
smith, 1 Ga. App. 48, 57 S. E. Wash. 331, 167 Pac. 923. And
983; Grommes v. St. Paul Trust cases cited ante, § 407, note 59c.
Co., 147 111. 634, 35 N. E. 820, 95 There are cases however
7 Am. St. Rep. 248; Harris v. which regard the original lessee
Heachman, 62 Iowa, 411, 17 N. as relieved from liability in such
W. 592; Brewer v. Dyer, 7 f'nsh. case. See ante, § 407, note 59d.
1584 Eeal Peopeety. [§ 431
linquishment of possession by the tenant and the re-
sumption of possession by the landlord.''*' The theory
of such surrender would seem to be that the revesting
of possession in the landlord to the exclusion of the
tenant, by the action of both parties, being inconsistent
with the continuance of an outstanding leasehold in
the tenant, both are estopped to assert that the relation
of landlord and tenant still exists. It is immaterial
whether such change of possession is the result of
agreement. The tenant may relinquish, possession to the
landlord in accordance with an agreement to that ef-
fect,''" but more frequently the change of possession oc-
curs as a result of the abandonment of the premises by
the tenant and the subsequent resumption of the pos-
session thereof by the landlord.
The question frequenth' arises whether there has
been such a resumption of possession by the landlord,
upon the abandonment of the premises by the tenant,
as to give rise to a surrender by operation of law,
relieving the tenant from liability under the lease. This
appears to depend, in each case, on whether the land-
lord has taken possession with the intention of oc-
cupying and controlling the premises as his own, to
96. Grimman v Legge, 8 Barn. ises and the tenant accedes to
& C. 324; Dodd v. Acklom, 6 such demand. See e. g. Kean
Man. & G. 672; Shahan v. v. Rogers, 146 Iowa, 559, 123 N.
Herzberg, 73 Ala. 59; WiUiams W. 978: Conkling v. Tuttle. 52
V. Jones, 1 Bush (Ky.) 621; Mich. 630, 18 N. W. 391; Smith
Lamar v. McNamee, 10 Gill & J. v. Pendergast. 26 Minn. 318, 3 N.
(Md.) 116, 32 Am. Dec. 152; W. 978; Frankel v. Sternau, 92
Talbot V. Whipple, 14 Allen, Ohio St. 197, 110 N. E. 747;
(Mass.) 177; Prior v. Klso, 81 Patchin's Ex'r v. Dickerman, 31
Mo. 2^1; Elgutter v. Drishaus, 44 Vt. 666; Eimerman v. Nathan,
Neb. 378, 63 N. W. 19; Dennis v. 116 Wis. 124, 92 N. W. 550
Miller, 68 N. J. Law 320, 53 Atl. {semhle) ; Boyd v. Gore, 143 Wis.
394; Elliott v. Aiken, 45 N. H. 5,31, 128 N. W. 68; Compare
30; Hart v. Pratt, 19 Wash. 560, Whittaker v. Barker, 1 Cromp &
53 Pac. 711. M. 113; Lamar v. McNamee, 10
97. There is such an agree- Gill & J. (Md.) 116, 32 Am. Dec.
ment, it appears, if the landlord ]52; Felker v. Richardson, 67 N.
demands possession of the prem- H. 509, 32 Atl. 830.
§ 431J
Transfek Inter Vivus.
1585
the exclusion of the tenant in case the latter desires to
return,"^ and this is ordinarily a question of fact.''''*
That the landlord, after the tenant's abandonment,
entered and cared for the premises,^ or that he made
repairs,- has been regarded as not in itself involving
such a resumption of possession. When the tenant, upon
abandoning the premises, sends the key to the landlord
or leaves it at his residence or place of business, the
fact that the landlord fails to return it to the tenant does
not necessarily show a resumption of exclusive pos-
session of the jDremises for this purpose,-^ though the
98. Welcome v. Hess, 90 Cal.
507, 27 Pac. 369, 25 Am. St. Rep.
145; Duffy v. Day, 42 Mo. App.
638; Meeker v. Spalsbury, 66 N.
J. Law 60, 48 Atl. 1026; Har-
grove V. Bourne, 47 Okla. 484,
150 Pac. 121.
99. Hays v. Goldman, 71 Ark.
251, 72 S. W. 563; Carson v.
Arvantes, 10 Colo. App. 582,
50 Pac. 1080; Okie v. Pearson, 23
App. D. C. 170; Brewer v. Nation-
al Bldg. Ass'n, 166 111. 221, 46
N. E. 752; Armour Packing Co. v.
Des Moines Park Co.. 116 Iowa,
723, 93 Am. St. Rep. 270, 89 N.
W. 196; Sander v. Holstein Com-
mission Co., 118 Mo. App. 29,
121 Mo. App. 293; Hargrove v.
Bourne, 47 Okla. 484, 150 Pac.
121; White v. Berry, 24 R. I. 74.
52 Atl. 682; Kneeland v. Schmidt.
78 Wis. :545. 11 L. R. A. 498, 47
N. W. 438.
1. .Joslin v. McLean, 99 Mich.
480, 58 N. W. 467; Duffy v. Day,
42 Mo. App. 638; Rucker v.
Mason,— Okla.,— 161 Pac. 195;
Milling V. Becker, 96 Pa. 182.
2. Cook V. Anderson, 85 Ala.
99, 4 So. 713; Brewer v. National
Union Bldg. Ass'n 166 111. 221,
46 N. E. 752; Sessinghaus v.
Knocke, 127 Mo. App. 300, 105 S.
W. 283; Haynes v. Aldrich, 133 N.
Y. 287, 16 L. R. A. 183, 28 Am.
St. Rep. 636, 31 N. E. 94;
Breuckman v. Twibill, 89 Pa.
58; Smith v. Hunt, 32 R. I. 326,
79 Atl. 826.
3. Oaster v. Henderson, 2 Q.
B. Div. 575; Fehringer v. Wagner,
Stockbridge Trading Co., 61 Colo.
359, 157 Pac. 1071; Ledsinger v.
Burke, 113 Ga., 74, 38 S. E. 313;
ToUe V. Orth, 75 Ind. 298, 39 Am.
Rep. 147; Martin v. Stearns, 52
Iowa, 345, 35 Am. Rep. 278, 3 N.
W. 92; Withers v. Larrabee. 48
Me. 570 Joslin v. McLean, 99
Mich. 480, 58 N. W. 467; Lucy v.
Wilkins, 33 Minn. 441, 23 N. W.
861; Landt v. Schneider, 31 Mont.
15. 77 Pac. 307; Underbill v.
Collins, 132 N. Y. 269, 30 N. E.
576; Bumiller v. Walker, 95 Ohio
.■!44, L. R. A. 1918B, 96, 116 N. E.
797; Bowen v. Clarke, 22 Ore.
566, 29 Am. St. Rep. 625, 30 Pac.
430; Auer v. Penn, 99 Pa. 370,
44 Am. Rep. 114; John B. Webster
Co. V. Grossman. 33 S .D. 383, 146
N. W. 565, (acceptance of Key by
Janitor); C'liandler v. Hinds, 135
Wis. 43, 115 N. W. :!39.
That the landlord, for the pur-
1586
Real Peopejrty.
[§ 431
acceptance and retention of tlie key, combined with other
circumstances, may have this effect.'^ The attempt of
the landlord to lease the premises to a third person,^
or even his actual making of such a lease, to take
effect immediately in possession, does not, in a number
of jurisdictions, show such an assumption of control
over the premises as to give rise to a surrender, re-
lieving the former tenant from further liability under
the previous lease,^ especially in case the landlord,
before making the second lease, notifies the former
tenant that he is about to make such a lease on the
latter 's account, that is, that his purpose is to reduce,
but not necessarily to extinguish, the latter 's liability
for rent.'^ By other cases it is held that such reletting
pose of making repairs, obtained
the key from the tenant, was
held not to relieve the tenant,
he having been notified that he
would still be held liable. Smith
V. Hunt, 32 R. I. 326, 79 Atl. 823.
4. Phene v. Popplewell, 12 C.
B. N. S. 334; Brewer v. National
Union Bldg. Ass'n 166 111. 221, 46
N. E. 752; Hesseltine v. Seavey,
16 Me. 212; Buckingham Apart-
ment House Co. V. Dafoe, 78
Minn. 268, 80 N. W. 974; Fink
V. Browe Co., (N. J. Ch.) 99 Atl.
926; Bowen v. Clarke, 22 Ore.
566, 29 Am. St. Rep. 625, 30 Pac.
430.
5. Walls V. Atcheson, 3 Bing.
462; Joslin v. McLean, 99 Mich.
48, 58 N. W. 467; Blake v. Dick,
15 Mont. 236, 48 Am. St. Rep. 671,
38 Pac. 1072; O'Neil v. Pearse. 88
N. J. L. 733, 96 Atl. 1102 aff'g 87
N. J. L. 382, 94 Atl. 312; Haynes
V. Aldrich. 133 N. Y. 287, 16 L.
R. A. 183, 28 Am. St. Rep. 636,
31 N. E. 94; Lane v. Nelson. 167
Pa. 602, 31 Atl. 864. In Meagher
V. Eilers Music House, S4 Ore.
33, 164 Pac. 373, the decision to
this effect was to some extent
based on the fact that the second
lease expressly reserved a right
in the original tenant to resume
possession.
6. Humiston, Keeling & Co. v.
Wheeler, 175 111. 514, 51 N. E.
893; Martin v. Stearns, 52 Iowa,
345, 3 N. W. 92; H. S. Chase &
Co. v. Evans, 178 Iowa, 885, 160
N. W. 346; Scheelky v. Koch, 119
N. C. 80, 25 S. E. 713; Bumiller v.
Walker, 95 Ohio, 344, L. R. A.
1918B, 96, 116 N. E. 797; Bowen
V. Clarke, 22 Ore. 566, 29 Am. St.
Rep. 625, 30 Pac. 430; Auer v.
Penn, 99 Pa. 370, 44 Am. Rep.
114; Auer v. Hoffmann. 132 Wis.
620, 112 N. W. 1090.
7. See Williamson v. Crossett,
62 Ark. 393: Renard v. Renard, —
Cal.— 165 Pac. 694; Rehkopf v.
Wirz, 31 Cal. App. 695, 161 Pac.
285; Brown v. Cairns, 107 Iowa,
727. 77 N. W. 478; Kean v.
Rogers, 146 Iowa. 559, 123 N. W.
754; Oldewurtel v. Wiesenfeld, 97
Md. 165. 54 Atl. 969; Alsup v.
§ 431]
Transfer Inter Vivos.
1587
necessarily brings to an end the tenancy previously
existing,^ and in favor of this view is the fact that the
contrary view appears to involve a right of possession
in two distinct persons under two distinct leases at
one and the same time.**
A third mode of surrender by operation of law oc-
curs in the case of a new lease by the landlord to a
third person, accompanied by the former tenant's re-
linquishment of possession in favor of such person. ^*^
And it is apparently on this principle, or on a prin-
ciple akin thereto, that a surrender by operation of
law has occasionally been regarded as taking place when
the landlord accepted as his tenant a sublessee of the
original tenant.^^
Banks, 68 Miss. 664, 13 L. R. A.
598, 24 Am. St. Rep. 294, 9 So.
895; McGinn v. B. H. Gladding
Dry Goods Co., 40 R. I. 348, 101
Atl. 129.
8. Oastler v. Henderson, 2 Q.
B. Div. 575: Welcome v. Hess, 90
Cal. 507, 25 Am. St. Rep. 145,
27 Pac. 380: Rice v. Dudley, 65
Ala. 68; Haycock v. Johnston, 97
Minn. 289, 114 Am. St. Rep. 715.
106 N. W. 304; Gray v. Kaufman
Dairy & Ice Cream Co., 162 N.
Y. 388, 49 L. R. A. 580, 76 Am.
St. Rep. 327, 56 N. E. 903; Pelton
V. Place 71 Vt. 430, 46 Atl. 63.
9. See 2 Tiffany, Landlord &
Ten. p. 1340, 14 Mich. Law Rev.
82; 15 Id. 559.
In Whitcomb v. Brant. 100 Atl.
175, it Mas held by the New
Jersey Court of Errors and Ap-
peals that a lessor making a
new lease, upon abandonment by
the first lessee, at a higher rent
than that reserved in the first
lease, was not liable for the ex-
cess to the first lessee, although
he had refused to consent to a
surrender. The case is criticized.
30 Harv. Law Rev. 766.
10. Nickells v. Atherstone, 10
Q. B. 944; Morgan v. McCollister,
110 Ala. 319, 20 So. 54; Triest &
Co. V. Goldstone, 173 Cal. 240,
159 Pac. 715; Williams v. Vander-
bilt, 145 111. 238, 21 L. R. A. 489,
36 Am. St. Rep. 486, 34 N. E.
476; Rogers v. Dockstader, 90
Kan. 189, 13S Pac. 717; Kins^y v.
Minnick, 43 Md. 112; Amory v.
Kannoffsky, 117 Mass. 351, 19
Am. Rep. 416; Gallop v. Murphy,
160 Mo. App. 1, 141 S. W. 438;
Washoe Coui.ty Bank v. Cai ipbell,
41 Nev. 153, 67 Pac. 643; In re
Sherwoods, 210 Fed. 754.
As to the effect of the invalidity
of the new lease, see editorial
note 28 Harv. Law Rev. 313,
Commenting on Johnson v. North-
ern Trust Co., 265 111. 263, 106
N. E. 814. Compare 2 Tiffany,
Landlord & Ten. p. 1347.
11. Dills v. Stobie, 81 lU. 202
(srmble); Stimmel v. Waters, 2
Bush (Ky.) 282; Amory v. Kan-
offsky, 117 Mass. 351, 19 Am. Rep.
1588
Real, Property.
[§§ 431, 432
Effect of surrender. A surrender by a par-
ticular tenant has the effect of extinguishing his es-
tate/^ and if he is a tenant under a lease it terminates
all future liability under the covenants/'' the most
ordinary application of this principle occurring in the
case of a covenant to pay rent, which ceases to be
effective after a surrender.^* A surrender does not,
however, operate to the prejudice of a third person.^"*
For instance, the interest of a subtenant is not affected
by the surrender of the estate of the head tenant,^''
nor is a lien on the estate surrendered affected by the
surrender.^^
§ 432. Conveyances failing to take effect in the
manner intended. A conveyance which is intended to
take effect as a certain class of conveyance, if not valid
for that purpose, will, if possible, be construed as a
conveyance of another character, in order that it may
416; Snyder v. Parker, 75 Mo.
App. 529; Thomas v. Cook, 2
Barn & Aid. 119. See 2 Tiffany.
Landlord & Ten. § 154.
12. Co. Litt 338b; Terstegge v.
First German Mut. Benev. Soc.
92 Ind. 82, 47 Am. Rep. 135;
Deane v. Caldwell, 127 Mass. 242;
Harris v. Hiscock, 91 N. Y. 340;
Appeal of Greider, 5 Pa. 422, 47
Am. Dec. 413.
13. Piatt, Covenants, 585;
American Bonding Co. v. Pueblo
Inv. Co., 150 Fed. 17, 9 L. R. A.
(N. S.) 557: Deane v. CaldweU,
127 Mass. 242; Snowhill v. Reed,
49 N. J. L. 292, 60 Am. Rep. 615,
10 Atl. 737.
14. Ante, § 413, note 66.
15 Co. Litt 338b.
16. Mellor v. Watkins, L. R.
9 Q. B. 400: Mitchell v. Young,
80 Ark. 411, 7 L. R. A. (N .S.),
221, 17 Am. St. Rep. 89, 97 S. W.
454: Buttner v. Kasser. 19 Cal.
App. 755, 127 Pac. 811: McKenzie
V. Lexington. 4 Dana (Ky.) 129;
Eten V. Luyster, 60 N. Y. 252;
Krider v. Ramsay, 79 N. C. 354:
Hessel v. .Johnson, 129 Pa. 173.
5 L. R. A. 851, 15 Am. St. Rep.
716, 18 Atl. 754; Cuschner v.
Westlake. 43 Wash. 690, 86 Pac.
948.
So it has been held that al-
though the surrender of the es-
tate of the head tenant prevents
the recovery from the subtenant
of rent afterwards accruing (ante
§ 413, note G9a) the surrenderee
is still bound by a covenant
entered into by the original les-
sor. Bailey v. Richardson, 66
Cal. 416, 5 Pac. 910; Standard
Oil Co. v. Slye, 164 Cal. 435, 129
Pac. 589.
17. Farnum v. Hefner, 79 Cal.
575, 12 Am. St. Rep. 174. 21 Pac.
<§ 433'] Transfer Inter Vivos. 1589
take effect.^** This important rule has been applied in
numerous connections. For instance, a conveyance in-
tended to take etifect as a bargain and sale, but which
is void as such for want of a pecuniar}^ consideration,
will take etfect as a covenant to stand seised, if a con-
sideration of blood or marriage exists;^'' and, as be-
fore stated, a conveyance in words of release, void as
such for want of an estate or possession in the releasee,
will be supported as a conveyance by bargain and
sale, or otherwise.-" This principle has also been adopted
to support limitations of future estates w-hich could
not fee supported unless the conveyance were regarded
as operating under the Statute of Uses.-^
II. Form and Essentials of a Conveyance.
§ 433. General considerations. All conveyances
of freehold or leasehold interests in lands, other than
certain leases for three years or less, must, by the
Statute of Frauds, be in writing.-^ In most, if not
all, the states of this country there are statutes to the
same general effect.^" These statutes, however, as be-
before stated, do not interfere with surrenders by
operation of law,-^ And even in the case of an at-
955; Dobschuetz v. HoUiday, 82 United States v. Housman, 6
111. 371; Firth v. Rowe, 53 N. J. Paige (N. Y.) 526; Eckmaii v.
Eq. 520, ;;2 Atl. 1064; Allen v. Eckman, 68 Pa. St. 460.
Brown. 60 Barb. (N. Y.) 39. 20. See ante, note ZW.
18. Norton Deeds, 46, citing 21. Roe d. Wilkinson v. Tran-
the numerous English cases. mer, 2 Wils. 75, Willes, 682;
Goodtitle v. Bailey, Cowp. 600; Ward v. Wooten, 75 N. C. 413;
Roe d. Wilkinson v. Traniner, Wall v. Wall , 30 Miss. 91, 64
Willes, 682; Foster's Lessee v. Am. Dec. 147; Merrill v. Pub-
Dennison. 9 Ohio, 121; Hunt v. lishers Paper Co., 77 N. H. 285,
Hunt, 14 Pick. (Mass.) 374; 90 Atl. 786; Rembert v. Vetoe,
Lambert v. Smith, 9 Ore. 185, 191. 89 S. C. 198, 71 S. E. 959.
See Gray. Perpetuities § 65. 22. 29 Car. II c. 3, p. 1-3.
19. Crossing v. Scudamore, 2 23. 1 Stimson's Am. St. Law,
Lev. 9. 1 Mod. 175; Morton v. S§ 1560. 4143.
Sledge. 29 Ala. 478; Bank of 24. See ante, § 431.
1590 Keal Property. [^ 433
tempted oral conveyance, the intended grantee, by
making improvements upon the property, may create
an equity in himself entitling him to a valid written
conveyance.^^
At common law, all written conveyances of land, as
well as most other written instruments, were in the
form of deeds, that is, of instruments under seal, and
a deed was either a ''deed of indenture" or a "deed
poll." A deed of indenture was a deed made between
two or more persons, while a deed poll was made by one
person only.-'^ These terms are thus used in England
at the present day, and they are occasionally so' used
in this country.
A carefully drawn conveyance usually consists of
the following parts : At the commencement the names
of the parties are stated,^" and the date is sometimes
here given, though it is frequently placed at the end.
Next come the recitals, if there are any, these being
statements of fact, explanatoiy of the transaction. A
statement of the consideration and of its payment and
receipt then follow,^^ and, after this, the operative
words of conveyance,-'' with a description of the land
conveyed,^^ and any exception therefrom."^^ The parts
thus far eimme rated constitute what is known as "the
premises," The premises are followed by the "haben-
dum" which limits the estate to be taken by the
grantee, and is usually introduced by the words "to
25. Post, § 547. queutly, conveyancers adopted the
26. Co. Litt. 229a. The word practice, which still, it seems,
, 'indenture" originated in the fact prevails in England, of cutting
that two copies of the deed were all deeds between two or more
usually written on the same parties in a waving line at the
piece of parchment, with some top. 2 Blackst. Comm. 296; Wil-
word or letters written between Hams, Real Prop. (18th Ed.) 150.
them, through which the parch- 27 .Post, § 434.
ment was cut in an indented or 28 Post, § 438.
waiving line. The words "deed 29. Post, § 435.
poll" refer to a deed "polled" 30. Post, §§ 441-448.
or shaven at the top. Subse- 31. Post, § 436.
§ 434] Transfer Inter Vivos. 1591
have and to hold. "^- Any declaration of trust which
is sought to be made is here inserted. The "redden-
dum" or reservation'' then follows, after that the
statement of any condition or power affecting the
grant, and then the covenant or covenants of title.-^^
The conclusion usually consists of a formal reference to
the execution, and the signatures and seals of the
parties are then placed by them at the foot of the
instrument.^^ There is also, almost invariably, a certi-
ficate by an officer that the conveyance was acknow-
ledged by the grantors. ^*^
Though a well drawn conveyance usually contains
all or most of these parts above referred to, a convey-
ance containing merely the names of the parties and
words of conveyance, with a description of the land,
if duly executed, is sufficient to vest at least an estate
for life in the grantee.^^
§ 434. Designation of the parties. A conveyance
should designate with certainty the name of the grantor,
and this should regularly be done at the commence-
ment. It is sufficient, however, if the name as given
is sufficient to enable the grantor to be identified, and
the fact that his name as it appears in the instrument
differs from his actual name, or from the name signed
thereto, does not invalidate the conveyance.^^ A con-
veyance in terms by the "heirs" of a person deceased
is sufficient, since they are capable of identification. '^'-^
32. Post, § 437. 361, 8 Am. St. Rep. 671, 37 N.
33. Post, § 4;}6. W. 788; Houx v. Batteen, 68 Mo.
34. Post, §§ 449-456. 64; Rupert v. Penner, 35 Neb.
35. Post, §§ 457, 458. 587, 17 L. R. A. 824, 53 N. W.
36. Post, § 460. 598; David v. Williamsburg City
37. Co. Litt. 7a; 4 Kent's Fire Ins. Co., 83 N. Y. 265, 38
Comm. 461. Am. Rep. 418; Jenkins v. Jenkins,
38. Comyn's Dig. "Fait" (E 148 Pa. St. 216, 23 Atl. 985; Chap-
3); Erskine v. Davis, 25 lU. 251; man y. Tyson, 39 Wash. 523, 81
Nicodemus v. Young, 90 Iowa, Pac. 1066.
423, 57 N. W. 906; Bierer v. 39. Blaisdell v. Morse, 75 Me.
Fretz, 32 Kan. 329, 4 Pac. 284; 542.
Wakefield v. Brown, 38 Minn.
1592
Real. Propebty.
[§ 434
It lias generally been held that, when two or more
persons join in the execution of a conveyance, only such
as are named in the body of the instrument will be
regarded as parties thereto. This rule has usually
been applied in the cases of conveyances by a husband,
the joinder in the execution of which by the wife has
been regarded as insufficient to release her dower, or
otherwise divest her rights ;^^' but the rule has also been
a23plied in the case of another person joining in the
execution of a conveyance which does not name him
as a party."* ^ In a number of jurisdictions, however,
the rule referred to has been repudiated, more usually,*-
but not exclusively,'*-^ in connection with the question
40. Agricultural Bank of Miss-
issippi V. Rice, 4 How. (U. S.)
22.5, 11 L. Ed. 949; Batchelor v.
Brereton, 112 U. S. 396, 28 L.
Ed. 748; Harrison v. Simons,
55 Ala. 510; Cordano v. Wright.
159 Cal. 610, Ann. Cas. 1912C,
1044, 115 Pac. 227; Cox v. Wells,
7 Blackf. (Ind.) 410, 43 Am.
Dec. 98; Prather v. McDowell, 8
Bush (Ky.) 46; Beverly v. Wal-
ler, 115 Ky. 600, 103 Am. St. Rep.
342, 74 S. W. 264; Payne v.
Parker, 10 Me., 178, 25 Am. Dec.
221; Stevens v. Owen, 25 Me., 94;
Lothrop V. Foster, 51 Me. 367;
Catlin V. Ware, 9 Mass. 218, 6
Am. Dec. 56; Leavitt v. Lamprey.
13 Pick. (Mass.) 382, 23 Am. Dec.
685; Greenough v. Turner. 11
Gray (Mass.) 334 Merrill v.
Nelson, 18 Minn. 366; Stone v.
Sledge, 87 Tex. 49, 47 Am. St.
Rep. 65, 26 S. W. 1068; Laugh-
lin V. Fream. 14 W. Va. 322.
41. Harrison v. Simons, 55
Ala. 510; Parsons v. Justice, 163
Ky. 737, 174 S.-W. 725; (Compare
Hargis v. Ditmore. 8fi Ky. 653,
7 S. W. 141); Peabody v. Hewitt.
52 Me. 33, 83 Am. Dec. 486; Marx
& Sons v. Jordan, 84 Miss. 334,
105 Am. St. Rep. 457, 36 So.
386; See Batchelor v. Brereton,
112 U. S. 396. 28 L. Ed. 748;
Stone V. Sledge. 87 Tex. 49, 47
Am. St. Rep. 65, 26 S. W. 1068.
42. Ingoldsby v. Juan, 12 Cal.
564; Johnson v. Montgomery, 51
111. 185; Armstrong v. Stovall, 26
Miss. 275; Elliot v. Sleeper, 2 N.
H. 525; Burge v. Smith, 27 N
H. 332; Woodward v Leaver.
38 N. H. 29. And see Isler v.
Isler, 110 Miss. 419, 70 So. 455.
A husband's authentication of
his wife's deed by his joinder in
the execution, has occasionally
been regarded as suflBcient under
the statute, though he was not
named in the instrument. Dentzel
V. Waldie, 30 Cal. 138; Pease v.
Bridge, 49 Conn. 58.
43. Sterling v. Park, 129 Ga.
309, 13 L. R. A. (N. S.) 298,
121 Am. St. Rep. 224, 12 A. &
E. Ann. Cas. 201, 58 S. E. 828;
Hrouska v. Janke, 66 Wis. 252,
28 N. W. 166. See Hargis v.
Ditmore, 86 Ky. 653, 7 S. W. 141.
§ 434] Transfer Inter Vivos. 15D.3
of the release of dower, it being considered that the
signature alone serves not only to identify the signer
as a grantor in the conveyance, but also to indicate
an intention to join therein for the i)urpose of passing
his or her interest. The requirement that the grantor's
name be inserted appears, as is suggested in some of
the cases last cited, to have been based on the necessity
of having some means for his identification,^^'' at a
time when but few people wrote, and a writing was
ordinarily authenticated by sealing alone.
The grantee or grantees must be named in the
conveyance, or means for their identification furnished
thereby.^^ It does not affect the validity of the con-
veyance that the name of the grantee, as inserted there-
in, is not that ordinarily borne by him, but one given
to or assumed by him for the occasion is sufficient.'*^
A conveyance however to an absolutely fictitious per-
son is a nullity.^^
A conveyance to a person deceased is a nullity,'* "'^
and a conveyance to the "estate" of one deceased has
43a. Perkins, Conveyancing. § 77 Am. Dec. 640; Chapman v.
36; Sheppard's Touchstone, 233. Tyson, 39 Wash. 523, 81 Pac.
44. Wood V. Boyd, 28 Ark. 75; 1066; Staak v. Sigelkow, 12 Wis.
Wunderlin v. Cadogan, 50 Cal. 234. But in Barr v. Schroeder,
613.. McGrew v. Lamb, 60 Colo, 32 Cal. 609 it appears to be as-
462, 154 Pac. 91; Simmons v. sumed that a mistake in the
Spratt, 20 Fla., 495; Chase v. grantee's name invalidated the
Palmer, 29 111. 306; Clarke v. conveyance.
Butts, 73 Minn. 361, 76 N. W. 46. David v. Williamsburg Fire
199; Henniges v. Paschke, 9 N. Ins. Co., 83 N. Y. 265, 38 Am.
D. 489, 81 Am. St. Rep. 588, 84 Rep. 418; Muskingum Valley
N. W. 350; Hardin v. Hardin, Turnpike Co. v. Ward, 13 Ohio
32 S. C. 599, 11 S. E. 102; Lund 120, 42 Am. Dec. 191; Weihl v.
v. Thackery, 18 S. Dak. 113, 99 Robertson, 97 Tenn. 458, 37 S.
N. W. 856; Wright v. Lancaster, W. 274.
48 Tex. 250. 47. Lewis v. McGee 1 H. K.
45. Wilson v. White, 84 Cal. Marsh. (Ky.) 199; Hunter v.
239, 24 Pac. 114; Scanlan v. Watson, 12 Cal. 363, 73 Am. Dec.
Grimmer, 71 Minn. 351, 70 Am. 543; Morgan v. Hazlehurst Lodge,
St. Rep. 326, 74 N. W. 146; 53 Miss. G65; Neal v. Nelson, 117
Thomas v. Wyatt, 31 Mo. 188, N. C. 393, 53 Am. St. Rep. 590.
1594
Real Property.
[§ 43-1
likewise been so regarded,^ ^ A conveyance to the "heirs"
of one deceased is valid, since their identity is capable
of immediate establishment.^^
It is immaterial in what part of the conveyance
the grantee's name or identity is made to appear,^^^
but if a person is named as grantee in the premises,
another person not named therein, but named in the
habendum, cannot take an estate under the conveyance
otherwise than by way of remainder.^!
Uncertain grantee. Occasionally a conveyance
is made in terms to the heirs of a particular person,
which person is still alive. There is obviously no
room for objection to the validity of such a conveyance
23 S. E. 428. But when a con-
sideration is paid, an equity has
occasionally been recognized as
existing in favor of the heirs.
Hutto V. Hutto, 66 Fla. 504, 63
So.; Johnson v. John L. Roper
Lumber Co., 168 N. C. 226, 84 S.
E. 289.
In City Bank v. Plank, 141
Wis. 653, it was held that a con-
veyance in terms to a person de-
ceased was valid, on the theory
that by the use of the name of
deceased it was intended to
designate his executor, the in-
ference being very strong that
when the parties to a transaction
know that a person named is
dead, they intend, in using his
name, to designate a living per-
son..
48. Simmons v. Spratt, 20 Fla.
495, 8 So. 123; Mclnerney v.
Beck, 10 Wash. 515, 39 Pac. 130,
But see Arnett v. Fairmont Trust
Co., 70 W. Va. 296, 73 S. E.
930, where a bequest to the
"estate" of one deceased was
regarded as passing the property
to the personal representative.
49. Shaw V. Loud, 12 MasS.
447; Hoover v. Malen, 83 Ind.
195; Boone v. Moore, 14 Mo.
421; Gearheart v. Tharp, 9 B.
Mon. (Ky.) 31.
50. Spyve v. Topham, 3 East
115; Richey v. Sinclair, 167 111.
184, 47 N. E. 364; Berry v. Bil-
lings, 44 Me. 416, 69 Am. Dec.
107; Bay v. Posner, 78 Md. 42;
Irwin V. Longworth, 20 Ohio, 581;
Henniges v. Paschke, 9 N. Dak.
489, 81 Am. St. Rep. 588; Co.
Litt. 7a; Sheppard's Touchstone,
75; 2 Preston, Conveyancing, 435.
51. Norton, Deeds, 287; Shep-
pard's Touchstone (Preston's Ed.)
237; Samme's Case, 13 Coke, 54;
Hiisted V. Rollins, Iowa, 137 N.
W. 462, 42 L. R. A. (N. S.) 379:
Blair v. Osborne, 84 N. C. 417;
Moore v. City of Waco, 85 Tex.
206; Adams v. Dunklee, 19 Vt.
382; Cox v. Douglass, 20 W. Va.
175; Weekly v. Weekly, W. Va.
83, S. E. 1005. Contra, to the
effect that one not named in
premises may take otherwise than
by way of remainder, see Mc-
Leod V. Tarrant, 39 S. C. 271, 17
§ 434] Transfer Inter Vivos. 1595
if the word ''heirs" is in the particular case intended
as a designation of ascertained persons, the living
children, for instance, of the person named. ^- But
it has been decided in a number of cases that if the
word "heirs" is in such case used in its technical
sense, and the attempted conveyance to the heirs is
not by way of remainder, it is invalid for lack of
any ascertained grantee.^^ And it has been decided
that, for the same reason, a conveyance, not by way of
remainder, to unborn children of a particular person,
is invalid.^* The validity of such a conveyance when
by w^ay of contingent remainder, has on the other
hand been freely recognized.^-^
At common law, that is, before the Statute of
Uses, such a conveyance to persons not ascertained or
not in being was valid only if by way of contingent
remainder, since otherwise there was no person to
whom the livery of seisin could be made,^*' and this
distinction between a conveyance by way of remainder
and not by way of remainder was applied even in the
S. E. 773 (Mclver, C. J. dissent- Ga. 210, 84 Am. St. Rep. 233,
ing). 38 S. E. 827; Faloon v. Sim-
52. Tharp v. Yarbrough. 79 Ga. shauser, 130 111. 649, 22 N. E.
382, 11 Am. St. Rep. 439; Sey- 835; Morris v. Caudle, 178 111.
mour V. Bowles, 172 111. 520. 50 9, 44 L. R. A. 489, 69 Am. St.
N. E. 122; Tinder v. Tinder, 131 Rep. 282, 52 N. E. 1036; Miller
Ind. 381, 30 N. E. 1077; Heath v. McAlister, 197 111. 72 64 N.
V. Hewitt, 127 N. Y. 166; 13 L. E. 254; Dupree v. Dupree, 45 N.
R. A. 46, 24 Am. St. Rep. 438; C. 164, 59 Am. Dec. 590; Newsom
Huss V. Stephens, 51 Pa. St. 282; v. Thompson, 2 Ired. L. (24 N.
Robertson v. Wampler, 104 Va. Car.) 277; Lillard v. Ruckers, 9
380, 51 S. E. 835. Yerg. (Tenn.) 64.
53. Duffield v. Duffield 268 111. 55. Co. Litt, 378a; Norton.
29, 108 N. E. 673; Tinder v. Tin- Deeds, 319; Boraston's Case, 3
der, 131 Ind. 381, 30 N. E. 1077; Co. Rep. 20a; Sharman v. Jack-
Booker V. Tarwater, 138 Ind. .'!85, son, 30 Ga. 224; Mudge v. Ham-
37 N. E. 979; Hall v. Leonard. 1 mill, 21 R. I. 283, 79 Am. St. Rep.
Pick. (Mass.) 27; Morris v. Ste- 802, 43 Atl. 544. See cases cited
phens, 46 Pa. St. 200. But see mite, § 136 (b).
Bailey v. Willis. 56 Tex. 212. 56. Ante, § 156.
54. Davis v. Hollingsworth, 113
1596 Eeal Propeety. [§ 434
case of a conveyance by grant,"*^ in analogy, presumably,
to the case of a conveyance by livery, since there was
nothing in the nature of a common4a,w grant to sug-
gest such a distinction. Consequently the modern de-
cisions, in recognizing this distinction, are supported
by the common law authorities. It is somewhat dif-
ficult, however, to see why the validity of a conveyance
in favor of the heirs or unborn children of A should,
at the present day, be dependent on whether, by the
same instrument, a particular estate is created in favor
of B ; and such a conveyance might, it is submitted,
well be sustained, without any particular estate, as
creating an executory interest, valid by force of the
Statute of Uses, or local state statute,^^ to mature into
an estate upon the ascertainment or coming into exis-
tence of the grantees named. A devise to unascertained
or non existent persons, if not offending the Rule
against Perpetuities, is perfectly valid,^'-^ and there
would appear to be no sufficient reason for applying
a different rule in this regard to a conveyance inter
vivos. The language of some of the cases, above cited,
would seem to suggest that the asserted invalidity of a
conveyance to unascertained or non existent persons is
based on the theory that a conveyance by deed is
necessarily a bilateral transaction, and that conse-
quently the grantee must be in existence at the time of
the delivery of the instrument in order that there be
an acceptance thereof.'"' Even the courts, however,
which i)rofess to recognize the necessity of the ac-
ceptance of a conveyance, in etfect admit that a con-
veyance is perfectly valid although the grantee is
an infant, mentally and legally incapable of acceptance,*''^
and if the impossibility of acceptance dispenses mth
its necessity when such impossibility arises from per-
57. Perkins, §§ 52, 53; Shep- 59. Atife, § 160.
pard's Touchstone, 235; Bacon's 60. Post. § 463.
Abridgment, Grant (C). 61. Post, § 463, note 18.
58. Ante, §§ 156-158.
§ 434] Transfer Inter Vivos. 1597
soiial incapacity, such impossibility might well have
the same effect when arising from the uncertainty or
non existence of the person whose acceptance is other-
wise required.
A conveyance to a corporation not yet formed has
been regarded as invalid for lack of an existent and
ascertained gTantee.*^^ But, it is submitted, such a
conveyance might, apart from the Rule against Per-
petuities, be supported as creating an executory in-
terest, to become vested upon the formation of the
corporation. In so far, however, as the conveyance
might be intended to operate in favor of a corporation
to be formed at a future time, however remote, it would
be invalid under the Eule against Perpetuities.
A conveyance to the inhabitants of a certain dis-
trict or municipal division has been regarded as in-
valid, on the ground that there is a lack of reasonable
certainty in the grantee,*^^ and a like view has been
taken of a conveyance to the owners of the building
adjoining the land conveyed on the west side thereof."^
Neme of grantee left blank. At the common
law, a deed, that is, an instrument under seal, if de-
livered with a blank therein as to an essential part, is
void, although this blank be afterwards tilled by one
having parol authority from the maker of the deed so
to do; this conclusion being ordinarily based on the
theory tliat an authority to execute and deliver an
instrument under seal must itself be under seal.''^
Applying the rule referred to, it has been held, in
several states, tliat a conveyance under seal, which is
62. Phelan v. San Francisco, 52 Atl. 1042; Co. Litt. 3a.
6 Cal. 531; Harriman v. Southam, 64. Schaidt v. Blaul, 66 Md.
16 Ind. 190; Douthitt v. Stinson, 141, 6 Atl. 669.
63 Mo. 268; Utah Optical Co. v. 65. Sheppard's Touchstone, 54;
Keith, 18 Utah, 464; RusseH v. Comyn's Dig. "Fait" (A 1); Hib-
Topping 5 McLean, 194, Fed. blewhite v. McMorine, 6 Mee.s.
Cas. 12163. & W. 200,
63. Hunt V. Tolles, 75 Vt. 48,
R. P.— 26.
1598
Real Property.
[^ 434
sought to be delivered with the name of the grantee
left blank, is invalid, although the blank is afterwards
filled up by another person acting under authority from
the gTantor, if that authority was not under seal.^^
In other states, it has been held, without reference to
the question of a seal, that an authority subsequently
to insert the grantee's name must be in writing.'^" In
still other states there are decisions to the effect that
the name of the grantee, if left blank, may be inserted
under an oral authority, or an authority merely in-
ferred from the circumstances of the case,^* these de-
66. Ingram v. Little, 14 Ga.
173, 58 Am. Dec. 549; Burns v.
Lynde, 6 Allen (Mass.) 305;
Macurda v. Fuller, 225 Mass. 341,
114 N. E. 366; Davemport v.
Sleight, 19 N. C. 381; Rollins v.
Ebbs, 137 N. C. 355, 2 Ann. Cas.
327, 49 S. E. 341; Preston v.
Hull, 23 Gratt. (Va.) 600.
67. Adamson v. Hartman, 40
Ark. 58; Upton v. Archer, 41 Cal.
85, 10 Am. Rep. 266; Whitaker
V. Miller, 83 111. 381; Mickey v.
Barten, 194 111. 446, 62 N. E.
802; Ayres v. Probasco, 14 Kan.
175; Lund v. Thackery, 18 S.
D. 113, 99 N. W. 856. See Lind-
sley V. Lamb, 34 Mich. 509.
68. Swartz v. Ballou, 47 Iowa,
188, 29 Am. Rep. 470; Hall v.
Kary, 133 Iowa 465, 119 Am. St.
Rep. 639, 110 N. W. 930; Bank
V. Fleming, 63 Kan. 139, 65 Pac.
213; Guthrie v. Field, 85 Kan.
58, 37 L. R. A. (N. S.) 326, 116
Pac. 217 (dictum) ; Inhabitants
of South Berwick v. Huntress,
53 Me. 90; Board of Education of
Minneapolis v. Hughes, 118 Minn.
404, 41 L. R. A. (N. S.) 637, 136
N. W. 1095; Field v. Stagg, 52
Mo. 534, 14 Am. Rep. 435; Thum-
mel V. Holden, 149 Mo. 677, 51
S. W. 404; Hemmenway v. Mu-
lock, 56 How. Pr. (N. Y.) 38;
Cribben v. Deal, 21 Ore 211, 28
Am. St. Rep. 746, 27 Pac. 1046;
Threadgill v. Butler, 60 Tex. 599;
Clemmons v. McGeer, 63 Wash.
446, 115 Pac. 1081; Lafferty v.
Lafferty, 42 W. Va. 783, 26 S. E.
262; Schintz v. McManamy, 33
Wis. 299; Friend v. Yahr, 126
Wis. 291 1 L. R. A. (N. S.) 891,
110 Am. St. Rep. 924, 104 N. W.
997
The tendency is to presume
authority for this purpose in
the person to whom the instru-
ment is handed by the grantor.
Creveling v. Banta, 138 Iowa. 47.
115 N. W. 598; Barras v. Barras,
191 Mich. 473, 158 N. W. 192;
Board of Education v. Hughes,
118 Minn. 404, 41 L. R. A. (N.
S.) 637, 136 N. W. 1095; Mont-
gomery V. Dresher, 90 Neb. 632,
38 L. R. A. (N. S.) 423, 134
N. W. 251; Lamar v. Simpson, 1
Rich. Eq. (S. C.) 71, 42 Am.
Dec. 345; Clemmons v. McGeer,
63 Wash. 446, 115 Pac. 1081;
Friend v. Yahr 126 WMs. 291, 104
N. W. 997, 1 L. R. A. (N. S.)
891, 110 Am. St. Rep. 924, 104 N.
W. 997.
434] Transfer Inter Vivos. 1599
cisions ordinarih^ referring to the common law re-
quirement of an authority under seal as technical and
unreasonable. These decisions do not howev.er meet
the difficulty presented by the statutes in force in a
number of states requiring a conveyance to be signed
by the grantor or by an agent "authorized in writing."
In the presence of such a statute it is difficult to under-
stand how such an essential part of the conveyance
as the designation of the grantee can be the act of an
agent without written authority. And especially is this
the case when the oral authority is one to insert, not
the particular name which was inserted, but any name
w^hich it might thereafter become desirable to insert.
Nor do these decisions appear to meet the difficulty,
hereafter referred to,^^ arising from the requirement
of delivery.
In case one to whom the instrument is entrusted,
with authority to insert the name of the grantee, in-
serts such name and then hands the completed instru-
ment to the grantee named, the question arises, when,
if ever, is the instrument to be regarded as having been
delivered. Was delivery effected by the action of
the grantor in handing the instrument to the agent,
or was it effected by the action of the agent in handling
When the instrument must be Simms v. Hervey, 19 Iowa, 273,
executed by the grantor, and 297, if this rule were adopted
cannot be executed through an has transpired, and deeds or
agent, as in some states is the mortgages to land are now "float-
case In a conveyance by a mar- ed" almost as readily as com-
ried woman, blanks in the con- mercial paper, and the name of
veyance cannot be filled by a the grantee Inserted when it (s'ic)
third person acting under oral, finds an owner who concluding
or even sealed, authority. Drury to retain the land elects to In-
V. Foster, 2 Wall. (U. S.) 24 17 sert his name as grantee. The
L. Ed. 780. practice, while not conserving a
69. Post, § 461, note 57. single laudable purpose, has prov-
In Creveling v. Banta, 138 Iowa en an efficient help in the per-
47, 115 N. W. 598, Ladd, C. J. petration of fraud and the con-
remarked as follows: "What was cealment of property from the
evidently feared by Dillon J., in pursuit of creditors."
1600 Real Propeety. [§ 434
the instrument to the grantee. The former view ap-
pears to be excluded by the difficulty of conceiving of
the legal delivery as a conveyance of an instrument
which lacks the name of a grantee. Such an instru-
ment is necessarily incapable of legal operation, and
to assert that such an instrument has been delivered,
that is, that an intention has been indicated that it shall
immediately be legally operative/" appears to involve an
al^solute incompatibility of ideas. In accord with this lat-
ter view are the occasional decisions or judicial statements
that the grantee's name must be inserted by the agent
l^efore he "delivers" the instrument, or before he de-
livers it to the grantee,"^ ^ this evidently involving the
view that it is the physical transfer by the agent, and
not the transfer to the agent, which operates as de-
livery. On the other hand there are decisions that an
agent to whom the instrument is handed, with authority
to insert such name as he may choose as that of the
grantee, may insert his own name, and thereby render
the instrument operative in his favor,"^ and these
do not accord with the view that the instrument can-
not be delivered until the grantee's name is inserted,
70. Post. § 461. ual transfer of the instrument
71. Allen v. Withrow, 110 L. to the agent involves in effect
S. 119, 28 L. Ed. 90; Osby v. a delivery conditioned upon the
Reynolds, 260 111. 576, 103 N. E. filling of the blank (see post, §
556; Carr v. McColgan, 100 Md. 462), so that the instrument is
462, 476, 60 Atl. 606; Derry v. to be regarded, so soon as the
Fielder, 216 Mo. 176, 115 S. W. blank is filled, as having been
412; Chauncey v. Arnold, 24 N. delivered at the time of such
Y. 330; Cribben v. Deal, 21 Ore. transfer. This does not, how-
211, 28 Am. St. Rep. 746, 27 Pac. ever, obviate the difficulty in-
1046; Telschow v. Quiggle. 74 volved in the idea of even the
Ore. 105, 145 Pac. 11; Duncan v. conditional delivery of a con-
Hodges, 4 McCord (S. C.) 239, 17 veyance lacking a grantee.
Am. Dec. 734. See Lockwood v. 72. Burk v. Johnson, 146 Fed.
Bassett, 49 Mich. 546, 14 N. W. 209; Augustine v. Schmitz, 145
492. Iowa 591, 124 N. W. 607; Ein-
In Halvorsen v Mullin, 179 stein v. Holladay-Koltz Land &
Iowa 293. 156 N W. 289, the. Lumber Co., 132 Mo. App. 82, 111
view is expressed that the man- S. W. 859 .
§ 434] Transfer Inter Vivos. 1 601
or with the view that the delivery is to be regarded as
made by the agent on behalf of the grantor. The con-
ception of a conveyance becoming operative by reason
of a delivery made by the grantee as agent of the
grantor is an almost impossible one. Furthermore, if
the one who is given authority to fill the blank is also
the grantor's agent for the purpose of making delivery
of the instrument when completed, he should, it is
submitted, have formal written authority for this
purpose, a power of attorney, as it is ordinarily termed,
the delivery being a part of the execution of the
instrument.''''^
Even though a merely oral authority to insert
the name of the grantee, and to make delivery of the
instrument when thus completed, be regarded as in-
sufficient, a view which, though not in accord with the
weight of authority in this country, is conceived to
be the sounder on principle, nevertheless an instrument
completed and delivered under such an insufficient
authority might in some cases be supported on the
theory of estoppel, in favor eitlier of the person whose
name is inserted in the instrument,'^^ or in favor of a
bona fide purchaser from him for value. '^^ One claim-
ing under a conveyance has frequently no means of
determining whether the grantee's name was inserted
before or after its execution, and unless he is to be
protected on the principle of estoppel, there is little
safety in purchasing property in any jurisdiction where
the validity of an oral authority to insei't the gi-antee's
name is denied.
73. Post, § 461, notes 53-58. v. Wells, 15 Neb. 298, 18 N. W.
74. Quinn v. Brown, 71 Iowa 132. See El Dorado Exchange
376, 34 N. W. 13; McCleery v. Nat. Bank v. Fleming, 63 Kan.
Wakefield, 76 Iowa, 529, 2 L. R. 139, 65 Pac. 213, and jwst, this
A. 529, 41 N. W. 210; State v. section, note 77.
Matthews, 44 Kan. 596, 10 L. R. 75. Swartz v. Ballou, 47 Iowa.
A. 308, 25 Pac. 36; Phelps v. Hall v. Kary, 133 Iowa, 468, 119
Sullivan, 140 Mass. 36, 54 Am. Am. St. Rep. 639, 110 N. W. 930;
Rep. 442, 2 N. E. 121; Pence v. Ragsdale v. Robinson, 48 Tex.
Arbuckle, 22 Minn. 417; Garland 379.
1602 Real Pboperty. [§ 434
In case a blank as to the name of the grantee is
filled by a person who has no authority for the purpose,
either oral or in writing, or it is filled in a manner
contrary to the directions of the grantor, the con-
veyance is, it is agreed, invalid as regards a person
who is aware of the circumstances of the transaction.'''
As regards an innocent grantee or purchaser, on the
other hand, it might frequently be valid, on the ground
of estoppel'^^ provided at least he pays value.'^^ If the
grantor chooses to place in the hands of another person
an instrument duly signed and sealed by him, but which
is otherwise in an incomplete state, and such other ex-
ceeds his authority in making the instrument apparently
complete, the grantor, and not an innocent purchaser,
should be the one to suffer on account thereof. The
grantor should be estopped, in such case, to deny that
the instrument is his act and deed."^^
When the grantor, instead of handing the blank
instrument to another, retains it, and it later leaves
his custody without his consent, the question whether
it is effective in the hands of a bona fide purchaser
would seem to depend primarily upon whether the con-
76. Ayers v. Probasco, 14 Kan. So. 425; Vica VaUey & C. R. v.
175; Arguello v. Bours, 67 Cal. Mansfield, 84 Cal. 560, 24 Pac.
447, 8 Pac. 49; Lund v. Thackery, 145; Whitaker v. MiUer, 83 111.
18 S.. D. 113, 99 N. W. 856; 381; Thummel v. Holden, 149 Mo.
Schintz V. McMenamy, 33 Wis. 677, 51 S. W. 404; Westlake v.
299. Dunn, 184 Mass. 260, 100 Am. St.
77. Creveling v. Banta, 138 Rep. 557, 68 N. E. 212; Tel-
Iowa, 47, 115 N. W. 598; Augus- schow v. Quiggle, 74 Ore. 105,
tine V. Schmitz, 145 Iowa, 591, 145 Pac. 11; Swan v. N. B.
124 N. W. 617; State v. Matthews, Australian Co., 2 Hurlst. & Colt.
44 Kan. 596, 10 L. R, A. 308, 25 175.
Pac. 36; Guthrie v. Field, 85 78. In Van Dyke y. Van Dyke,
Kan. 58, 116 Pac. 217, 37 L. R. 119 Ga. 47 S. E. 192, 830, in which
A. (N. S.) 326; Pence v. Ar- the conveyance was regarded as
buckle, 22 Minn. 417; Garland v. invalid there appears to have
Wells, 15 Neb. 298, 18 N. W. 132; been no consideration paid.
Clemmons v. McGeer, 63 Wash. 79. See the admirable discus-
446, 115 Pac. 1081. But see sion In Ewart, Estoppel, 449, et
Barden v. Grace, 167 Ala. 453, 52 seq. But the cases referred to
§ 434] Transfer Intee Vivos. 1603
duct of the grantor was, in the particular case, lacking
in reasonable care.^°
Substitution of other grantee. The question
of the validity of a conveyance, the name of the grantee
in which was inserted after it left the grantor's hands,
in a space left blank for this purpose, was discussed
above. ^^ A question of a somewhat analogous nature
concerns the validity of a conveyance, when the name
of the grantee was inserted after delivery, not in a
space originally left blank for the purpose, but by
way of substitution for another name which appeared
in the instrument at the time of delivery. Occasionally
a purchaser of land, with a view to the saving of
expense and trouble, upon reselling the land to another,
merely erases his own name and inserts that of the
purchaser, so that, when the instrument is re-
corded, the title appears to have passed
direct from his vendor to the last purchaser. Such an
alteration, even if made with the consent of both the
grantor and grantee, and in the presence of both,
cannot operate, it would seem, to divest the title
vested by the delivery in the original grantee,^^ and
the fact that the grantor purports to make a second
delivery after the alteration cannot well change the
result. To divest one's title to land something more
is necessary tlian a conveyance by his grantor to a
third person. It has been said that if the original
grantee himself procures the change to be made he
cannot thereafter claim title in hiniself,^^ but this is
in the latter portion of note 77 471, 9 Ann. Cas. 481, 77 N. E.
st^pra are opposed to any such 942; Carr v. F'rye, 225 Mass. 531,
notion of estoppel. 114 N. E. 745.
80. See 4 Wigmore, Evidence, 83. Abbott v. Abbott, 189 111.
§ 2419; Van Amringe v. Morton 488, 82 Am. St. Rep. 472, 59 N.
4 Whart. (Pa.) 382; Telschow v. E. 958. The statement appears
QHiiggle, 74 Ore. 105, 145 Par. 11. to have been uncalled for, as
81. Ante, this section, notes the court found that the change
65-80. w^as made before delivery.
82. Gibbs v. Potter, 166 Ind.
1G04: Real. Property. [§ 435
so, it is submitted, only in so far as the elements of an
estoppel are present.^*
The substitution of another name as that of the
grantee, without the grantor's consent, can obviously
not operate to vest title in the person whose name
is so substituted.'*'' One conveying to A cannot, without
his consent, be made to convey to B. And likewise the
substitution of another name as that of the grantee,
without the consent of the original grantee, cannot
have such an effect, of divesting the title of the origi-
nal grantee.^"
§ 435. Words of conveyance. Though particular
words are appropriate to particular classes of con-
veyances, it is not necessary that these particular
words be used, and the conveyance is valid, provided
it contains any words signifying an intention to trans-
fer the land or the grantor's interest therein.^" The
phrase "give, grant, bargain, and sell" is frequently
employed, and is no doubt sufficient for any class of
conveyance, in view of the rule before referred to, that
a conveyance will be upheld if possible, though it can-
not operate as intended. It is necessary, however, that
84. See Goodwin v. Norton, 87. Shove v. Pincke, 5 Term.
92 Me. 532, 43 Atl. 111. R. 124; Peters v. McLaren, 218
85. HoUis V. Harris, 96 Ala. Fed. 410, 134 C. C. A. 198; San
288; Wagle v. Iowa State Bank, Francisco & 0. R. Co. v. City
Iowa 156 N. W. 991; Wilds v. of Oakland, 43 CaL 502; Yeager
Bogan, 55 Ind. 331 (senible) ; v. Farnsworth, 163 Iowa, 537;
Perry v. Hackney, 142 N. C. 368, 145 N. W. 87; Howe v. Warnack.
115 Am. St. Rep. 741, 9 Ann. 4 Bibb. (Ky.) 234; Gordon v.
Cas. 244, 55 S. E. 289; Goodwin Haywood, 2 N. H. 402; Hutchins
V. Norton, 92 Me. 532. 43 Atl. v. Carleton, 19 N. H. 487; Jack-
Ill son V. Root, 18 Johns. (N. Y.) 60;
86. John V. Hatfield, 84 Ind. Lynch v. Livingston, 6 N. Y. 422;
75 (semble); HiU v. Nisbet, 58 Folk v. Varn, 9 Rich. Eq. (S. C.)
Ga. 586 (semble); Clark v. Cress- 303; Evenson v. Webster, 3 S.
well, 112 Md. 339, 21 Ann. Cas. D. 382, 44 Am. St. Rep. 802, 53
338, 76 Atl. 579; Simpkins v. N. W. 747; Hanks v. Folsom, 11
Windsor, 21 Ore. 382, 28 Pac. Lea (Tenn.) 555.
72 (semMe).
§ 436] Transfer Inter Vivos. 1605
the conveyance contain words showing an intention to
transfer the grantor's interest,®* and the words "sign
over"*^ and ''warrant and defend" have been held
to be insnfficient,'"^ as have the words "does wilL""^ **-
§ 436. Exceptions and reservaticns. The purpose
and effect of an exception in a conveyance is to except
or exclude from the operation of the conveyance some
part of the thing- or things covered by the general words
of description therein, as when one conveys a piece of
land, excepting a certain part thereof, or the houses
thereon, it being properly always a thing actually
existent.*^^ A reservation in a conveyance, as defined
by the common-law writers, is a clause by which the
grantor of the land creates, in favor of himself, some
new thing "issuing out of" the land, and not previously
in existence, such as a rent, or some other service of a
feudal or quasi feudal character.^"'
The expressions "reserve" and "reservation" have
been applied, in a somewhat untechnical sense, in connec-
tion with a clause in a conveyance by which the
88. Webb v. MuUins, 78 Ala. R. Co., 132 Iowa, 129, 109 N. W.
Ill; BeU V. McDuffie, 71 Ga. 264; 453; Brown v. Anderson, 88 Ky.
Davis V. Davis, 43 Ind. 561; 577, 11 S. W. 607: Snoddy v.
Brown v. Manter, 21 N. H. 528, Bolen, 122 Mo. 479, 24 L. R. A.
53 Am. Dec. 223; Weinrich v. 507, 24 S. W. 142 ; 25 S. W. 932;
Wolf, 24 W. Va. 299; Freuden- Edwards v. Brusha, 18 Okla. 234.
berger Oil Co. v. Simmons, 75 W. 90 Pac. 727. See Truett v.
Va. 337, Ann. Cas. 1918A 873, 83 Adams, 66 Cal. 218, 5 Pac. 96;
S. E. 995. Brown v. Allen, 43 Me. 590; King
89. McKinney v. Settles, ;;1 v. Wells, 94 N. C. 344; Woodcock
Mo. 541. V. Estey, 43 Vt. 515.
90. Hummelman v. Mounts. 87 An exception in a covenant of
Ind. 178. title is not necessarily an excep-
91-92. Caldwell v. Caldwell, tion or reservation for the pur-
140 Ga. 736 ,79 S. E. 853. poses of the conveyance. Wen-
93. Co. Litt, 21a; Sheppard's dall v. FLsher. 187 Mass. 81, 72
Touchstone, 77 et seq.; Washing- N. E. 322; Towns v. Brown, (Ky.)
ton Mills Emery Mfg. Co. v. Com- 114 S. W. 773.
mercial Fire Ins. Co. (C. C), 94. Co. Litt. 47a; Sheppard's
13 Fed. 646; Spencer v. Wabash Touchstone, 8(); Doe d. Douglas
1606 Real Property. [§ 436
grantor retains a power of disposition over the land
conveyed,^^ by which he is given a right to repurchase
the property j^*^ by which he retains the right to re-
cover damages for jiast injuries to the property con-
veyed,^" and by which he retains a limited estate in
the land,^^ and perhaps in other cases of stipulations
in behalf of the grantor. Such cases evidently do not
fall within the common-law definition of a reservation,
but the use of the expression in these comiections
is highly convenient, and appears, in the ordinary
case, to be free from objection.
As creating easement. The nature of an
exception and of a reservation being, at common law,
such as above described, neither was strictly appropriate
for the creation, on the conveyance of land, of an
easement or right of profit in the land in favor of the
grantor, and, accordingly, the English courts have de-
cided that such an attempted exception or reservation
must be construed as a grant back of an easement by
the grantee of the land.'^'' In this country, however,
a different view has been taken, and such a right has
almost invariably been regarded as the proper sub-
ject of a reservation,^ and sometimes even of an ex-
V. Lock, 3 Adol. & El. 743; Dur- 436 Ann. Cas. 1917B, 116, 149 N.
ham & S. Ry. Co. v. Walker, W. 613; Vessey v. Dwyer, 116
2 Q. B. 940. Minn. 245, 133 N. W. 613; Mer-
95. See Varner v. Rice, 44 rill v. Publishers' Paper Co. 77
Ark. 236; Bouton v. Doty, 69 N. H. 285; 90 Atl. 786; In re
Conn. 531, 37 Atl. 1064; Horn v. Dixon, 156 N. C. 26, 72 S. E. 71;
Broyles, (Tenn. Ch.) 62 S. W. Rembert v. Vetoe, 89 S. C. 198,
297; Van Ohlen's Appeal, 70 Pa. 71 S. E. 959.
57. 99. Durham & S. Ry. Co. v.
96. Saddler v. Taylor, 49 W. Walker, 2 Q. B. 940; Wickham
Va. 104, 38 S. E. 583. v. Hawker, 7 M. & W. 63;
97. Richardson v. Palmer, 38 Corporation of London v. Riggs.
N. H. 212; Shepard v. Man- 13 Ch. Div. 798.
hattan Ry. Co. 169 N. Y. 160, 1. Chappell v. New York, N.
62 N. E. 151; Maurer v. F^ied- H. & H. R. Co., 62 Conn. 195.
man, 197 N. Y. 248, 90 N. E. 814. 17 L. R. A. 420, 24 Atl. 997;
98. Wood V. Logue, 167 Iowa Haggerty v. Lee, 50 N. J. Eq.
<§ 436] Transfer Inter ^''Ivus. 16<^7
ceptioii.- The view that a right of use or profit may
be created by reservation seems to involve but a slight
extension of the common law conception of a reserva-
tion, and it is more or less justified by the fact that in
this country the conveyance is usually executed by the
grantor alone, so that the effect of regarding a stipula-
tion for such a right in favor of the grantor as a
grant back, as is done in England, would usually result
in rendering it invalid. But to describe such a stipu-
lation as an exception involves a complete departure
from the common law view of tht nature of an ex-
ception, as being in etfect merely a part of the descrip-
tion of what is conveyed.
In so far as the courts, thus recognize the pos-
sibility of utilizing an exception as well as a reserva-
tion for the purpose of creating an easement, it being
conceded that the particular expression used, w^hether
'' except" or "reserve" has little weight in this con-
nection,^ it was to be anticipated that the determination,
in any particular case, whether there is the reservation
of an easement, or the exception of an easement, would
be attended ^\^th considerable difficulty. In some de-
cisions, upon the assumption that the word *' heirs" is
necessary for the creation of an easement in perpetuity,
if it is by means of a reservation. Mobile not necessary
if it is by means of an exception,^ the absence of such
word has been regarded as showing that the language
used in the particular case was intended to operate
as an exception and not a reservation,^ a view which
464, 26 Atl. 537; Claflin v. Boston Clafiin v. Boston & A. R. Co.,
& A. R, Co., 157 Mass. 489, 20 157 Mass. 489, 20 L. R. A. 63S,
L. R. A. 638, 32 N. E. 659; Graf- 32 N. E. 659; Bridger v. Pierson,
ton V. Moir, 130 N. Y. 465, 27 Am. 45 N. Y. 601. See ante, § 362.
St. Rep. 533, 29 N. E. 974; 3. Post, this section, note 8.
Kister v. Reeser, 98 Pa. St. 1, 4. Ante, § 362.
42 Am. Rep. 608. See cases cited 5. Winthrop v. Fairbanks, 41
post, this section, notes 5-8. Me. 307; Hall v. Hall, 106 Me.
2. Inhabitants of Winthrop v. 389, 76 Atl. 705; White v. N.
Fairbanks, 41 Me. 307; Ring v. Y. & N. E. R. Co., 156 Mass. 181.
Walker. 87 Me. 550, 33 Atl. 174; .",0 N. E. 612; Hamlin v. Kail-
1608 Real Propeety. [§ 436
involves an imputation of intention to the person using
the words which is seldom, if ever, in accord with
his actual intention. Some courts, on the other hand,
regard as an exception a clause undertaking to create
in favor of the grantor of the land an easement cor-
responding to a preexisting qi{asi easement, on the
theory that in that case there is a retention by the
grantor of a thing actually existent, while if the ease-
ment sought to be created does not correspond to a
preexisting quasi easement, the clause is to be regarded
as a reservation, as undertaking the creation of a
thing not before existent/' This latter distinction,
though ingenious and readily capable of practical ap-
plication, appears to ba without any foundation in
principle. As heretofore explained,^ a quasi easement is
said to exist when the owner of land uses part of his
land for the benefit of another part, but this is merely
a form of expression, and a quasi easement is not in
itself a right recognized by the law. One uses part
of his land for the benefit of another part by right of
ownership, and not by reason of the existence of a
quasi easement. Consequently an "exception" of an
easement corresponding to a preexisting quasi ease-
ment involves the creation of a new and distinct legal
right to the same extent as a "reservation" of an
easement not corresponding to a use previously made
of the land conveyed.
As above stated, in construing language creating,
or attempting to create, rights in the land granted in
favor of the grantor, the courts ignore the terms
used, such as "except" and "reserve," and ordinarily
consider it to constitute an exception or a reservation,
according to the nature of the rights sought to be cre-
road Co., 160 Mass. 459, 36 N. 76 Atl. 705 (semble) ; Claflin v.
E. 200; Lipsky v. Heller, 199 Boston & M. R. R., 157 Mass.
Mass. 310, 85 N. E. 453; Smith's 401; Foster v. Smith, 211 Mass.
Ex'cr V. Jones, 86 Vt. 258. 84 411, 98 N. E. 693; Smith's Execu-
Atl. 866 (sem-ble). v. Jones, 86 Vt. 258, 84 Atl. 866.
6. Hall V. Hall, 106 Me. 389, 7. Ante. § 363 (b).
§ 436J
Transfer Inter Vivos.
1609
ated.^ Accordingly, applying what seems the proper
distinction between an exception and a reservation,
language which seeks to create rights in favor of the
grantor in a certain jDart of the land will be regarded
as constituting a reservation or an exception, according-
ly as an easement in such part is created, or the owner-
ship of such part is retained.^ And in case the con-
veyance provides that the grantor shall have rights
as to timber on the land, the court will consider merely
whether the intention is that the grantor shall retain the
ownership of the timber, or shall have only a right to
come on the land to take timber, and will regard the
provision as an exception or a reservation accordingly.^"
And a stipulation as to minerals may be either a res-
er^^ation of a right to take minerals, or an exception
of the minerals in place. ^^
8. Webb V. Jones, 163 Ala.
637, 50 So. 887; Van Slyke v.
Arrowhead Reservoir & Power
Co., 155 Cal. 675, 102 Pac. 816;
Zimmerman v. Kirchner, 151
Iowa 483, 131 N. W. 756; IVTc-
Intire v. Lauckner. 108 Me. 443,
81 Atl. 784; Claflin v. B. & A. R.
R Co, 157 Mass. 489, 20 L. R. A.
639, 32 N. E. 659; Martin v.
Cook, 102 Mich. 267, 60 N. W.
679; Smith v. Furbush, 68 N. H.
123, 47 L. R. A. 226, 44 Atl. 398;
Hagerty v. Lee, 54 N. J. L. 580,
20 L. R. A. 631, 25 Atl. 319;
Gill V. Fletcher, 74 Ohio St.
295, 113 Am. St. Rep. 962. 78
N. E. 433; Riefler & Sons v.
Wayne Storage Water Power Co..
232 Pa. 282, 81 Atl. 300; Coal
Creek Min. Co. v. Heck, 15 Lea
(Tenn.) 497; Watkins v. Tucker,
84 Texj 428, 19 S. W. 570;
Bradley v. Virginia Ry. & Power
Co., lis Va. 233, 87 S. E. 721:
Stndebaker v. Beek, 83 Wash.
260, 145 Pac. 225; Jones v. Hoff-
man, 149 Wis. 30 134 N. W. 1046.
9. Barnes v. Burt, 38 Conn.
541; Wellman v. Churchill, 92
Me. 193. 42 Atl. 352; Winston
V. Johnson, 42 Minn. 398, 45
N. W. 958; Jones v. De Lassus,
84 Mo. 541; Langdon v. New
York, 6 Abb. N. Cas. 314, 93 N.
Y. 129; Towne v. Salentine. 92
Wis. 404, 66 N. W. 395; Prichard
V. Lewis, 125 Wis. 604, 1 L. R.
A, (N. S.) 565, 110 Am. St.
Rep. 873, 104 N. W. 989.
10. Van Slyke v. Arrowhead
Reservoir & Power Co) 155 Cal.
675, 102 Pac. 816; Knotts v.
Hydrick, 12 Rich. L. (S. C.) 317;
Rich V. Zeilsdorff, 22 Wis. 544,
99 Am. Dec. 81.
11. Gill V. Fletcher, 74 Ohio
St. 295, 113 Am. St. Rep. 962,
78 N. E. 433: Snoddy v. Bolen,
122 Mo. 479, 24 L. R. A. 507.
24 S. W. 142, 25 S. W. 932;
Barrett v. Kansas & Texas Coal
IGIO
IIeaLi Pkoperty.
[§ ^'iO
Reservation in favor of third person. At com-
mon law a reservation of rent cannot, by the use of
particular language, be made to operate in favor
of a person other than the lessor or grantor.^^ This
rule has been said to be based on the consideration that,
since the rent reserved is a return or comi^ensation for
the land granted, the one who grants the land is the
only person entitled to the benefit of the reservation,
and it was also said that a reservation of rent in favor
of a stranger would involve the danger of mainte-
nance.^^ A like view, that a reservation must be in
favor of the grantor, has been asserted in connection
with the reservation of an easement or right of prof-
it,^ ^ but there are to be found occasional dicta or
decisions to the effect that an easement may be re-
served in favor of a person other than the g'rantor.^^
Co., 70 Kan. 649, 79 Pac. 150;
Preston v. White, 57 W. Va. 278,
50 S. E. 236; Whitaker v.
Brown, 46 Pa. St. 197.
12. Litt. § 346; Co. Litt. 143b,
213b. See 1 Tiffany, Landlord
& Ten., § 170.
13. Gilbert, Rents 54.
14. Washburn, Easements 34;
Jackson v. Snodgrass, 140 Ala.
365, 37 So. 246; Illinois Central
R. Co., V. Indiana Cent. R. Co.
85 111. 211; Stone v. Stone, 141
Iowa 438, 20 L. R. A. (N. S.)
221, 18 Ann. Cas. 799, 119 N. W.
712; Beinlein v. Johns. 102 Ky.
570, 44 S. W. 128; Herbert v.
Pue, 72 Md. 307, 20 Atl. 182;
Murphy v. Lee, 144 Mass. 371, 11
N. E. 550; Haverhill Sav. Bank v.
Griffin, 184 Mass. 419, 68 N.
E. 839; Borst v. Empie, 5 N. Y.
33; Beardslee v. New Berlin L.
& P. Co., 207 N. Y. 34, 100 N.
E. 434; Edwards v. Brusha, 18
Okla. 234, 90 Pac. 727; Young's
Petition, 11 R. I. 636; Brace v.
Van Eps, 21 S. D. 65, 109 N.
W. 147; Strasson v. Montgomery,
32 Wis. 52.
15. Lynch v. White, 85 Conn.
545, 84 Atl. 326 (semile) ; White-
law V. Rodney, 212 Mo. 540, 111
S. W. 560; Litchfield v. Boogher,
238 Mo. 472, 142 S. W. 302; City
Club of Auburn v. McGeer, 198
N. Y. 160, 91 N. E. 539 (semble) ;
Gibbons v. Ebding, 70 Ohio St.
298, 101 Am. St. Rep. 900, 71
N. E. 720; Duross v. Singer, 224
Pa. 573, 73 Atl 951. See Bark-
hausen v. Chicago, M. & St. P.
R. Co., 142 Wis. 292, 124 N. W.
649, 125 N. W. 680.
And a reservation of highway
rights in favor of the public in
no way a party to the convey-
ance, has been assumed to be
valid. Sullivan v. Eddy, 154 111.
199. 40 N. E. 482; Edwards v.
Brusha, 18 Okla. 234, 90 Pac.
727; Tuttle v. Walker, 46 Me.
<^ 436] Transfer Inter Vwos. 1611
If one conveying laud to A undertakes by the same
instrument to create an easement in the land in favor
of B, there is, it would appear, not a reservation of
an easement in favor of B but a grant thereof to him,
that is, by one and the same instrument, the grantor
undertakes to convoy land to one person and an ease-
ment in the land to another. To this there would seem
to be no objection on principle, provided the execution
by him of the instrument is such as is required for the
purpose of the grant of an easement, and provided
further the courts can regard the words of reservation,
as they do words of covenant, '"^ as equivalent to words
of grant for this purpose, which, it would seem, in
order to effectuate the intention of the parties, they
may well do.^' It can liardly be questioned that a
testator might create an easement in favor of one
devisee over land devised to another by words of
reservation, as well as by words of grant. ^^
There are several cases to the effect that an at-
tempted reservation in favor of a third person may
indirectly operate in his favor by excluding a part of
the land from the operation of the conveyance, and
so preventing the transferee from asserting any rights
therein as against such person, ^^ to the effect, in other
words, that if the grantor undertakes to reserve an
easement in favor of a third person in a particular part
of the land, that part of the land is excepted from the
conveyance, and the grantee can consequently not as-
280. See Elliot v. Small, 35 Walker, 2 Q. B. 940. Ante, this
Minn. 396, 59 Am. Rep. 329, 29 section, note 99.
N. W. 158. 18. There was no question
16. Ante, § 361. suggested as to the validity of
17. As in England words of such a reservation in Wiley v.
reservation of an easement are Ball, 72 W. Va. 685, 79 S. E.
construed as operating by way 659.
of re-grant from the transferee 19. Bridger v. Pierson, 45 N.
of the land. See Doe v. Lock, Y. 601; Bessom v. Freto, 13 Mek.
2 Ad. & El. 743; Wickham v. (Mass.) 523; Hodge v. Boothby.
Hawker 7 Mees. & W. 63; Dur- 48 Me. 68; Martin v. Cook, 102
ham & Sunderland Ry. Co. v. Mich. 267, 60 N. W. 679.
1612 Real Property. [§ 436
sert any claim thereto as against such third person, or
any other person, who may happen to be utilizing the
land. It is, nevertheless, difficult to see how an at-
tempted reservation of an easement can thus take
effect as an exception, how, for instance, a reservation
of a right of way thirty feet wide in favor of a third
person can be regarded as an exception of a strip of
land thirty feet wide.^- Regarding it merely as a
matter of construction, such a view would seem to
violate the recognized rule^^ that words of exception
or reservation are to be construed in favor of the
grantee rather than of the grantor. Apparently op-
posed to the cases referred to are several decisions
that the fact that the grantor in a conveyance of land
undertakes to reserve a strip of the land in favor of
the public for use as a highway does not prevent the
''fee" in such strip, that is, the ownership thereof,
from passing under the conveyance,-^'* When there is
in terms an exception or reservation of an easement
in favor of a third person, which easement is already
existent, the exception or reservation, so called, is not
effective as such, since the rights of such person are
independent of whether the owner of the land refers
to such rights in his conveyance of the land. Con-
sequently the statement, occasionally found, that the
reservation of an existing easement in favor of a
20. In Young Petitioner, 11 Brown,— Ky.) — 114 S. W. 773;
R. I. 636, it was held that a Massey v. Warren, 52 N. C.
clause undertaking to vest in 143; Klaer v. Ridgway, 86 Pa.
a third person a right to take St. 529.
timber could not be upheld as 21a. Sullivan v. Eddy, 154 111.
an exception, and was void. 199, 40 N. E. 482; Edwards v.
21. Wiley v. Sirdorus, 41 Brusha, 18 Okla. 234, 90 Pac.
Iowa 224; Wellman v. Churchill, 727; Cincinnati v. Newell. 7
92 Me. 193, 42 Atl. 352; Derby Ohio St. 37; Bolio v. Marvin, 130
v. Hall, 2 Gray (Mass.) 236; Mich. 82, 89 N. W. 563; Elliot
Bolio v. Marvin. 130 Mich. 82, v. Small, 35 Minn. 396, 59 Am.
89 N. W. 563; Duryea v. New Rep. 329, 29 N. W. 158; Tuttle
York, 62 N. Y. 592; Towns v. v. Walker, 46 Me. 280.
§ 436] Transfer Ixter Vivos. 1613
third person constitutes an exception-- is, it is sub-
mitted, somewhat lacking in accuracy. In so far as
the language of the conveyance may be construed as ex-
cepting a part of the land, when there was previously
merely an easement in a third person in such part,^^
the language does operate as an exception, but it does
not operate in favor of such third person, since he
merely retains the easement which he previously had.
Likewise the langiiage operates as an exception in
favor of the grantor when it in terms excepts an as-
certained part, and erroneously states that such part
has been sold or conveyed to another.-^
As above stated,-*'^ the language of reservation is
not infrequently employed for the purpose of creating
in the grantor a less estate than that conveyed, as when
one conveys an estate- in fee simple "reserving" an
estate for his life. Such a clause is not a reservation,
according to the common-law conception of the term,
but it has occasionally been referred to as such for the
purpose of the general rule that a reservation can
operate only in favor of the grantor, with the result
that in a conveyance in fee simple, for instance, an at-
tempted "reservation" of a life estate in favor of a
member of the grantor's family other than himself
has been regarded as invalid.-^'' It may be questioned,
22. Stockwell v. Coullard, 129 way) ; Contra. Derby v. HaU, 2
Mass. 231; Wood v. Boyd, 145 Gray (Mass.) 236; Gould v.
Mass. 176, 13 N. E. 476; State Howe, 131 111. 490, 23 N. E.
V. Wilson, 42 Me. 9; Richardson 602; Richardson v. Palmer, 38
V. Palmer, 38 N. H. 212; Brid- N. H. 212. See note 20 Harv. Law
ger V. Pierson, 45 N. Y. 601; Rev. at p. 574.
Beardsley v. New Berlin Light 24. Arabs v. Chicago, St. P.,
& Power Co., 207 N. Y. 34, 100 M. & O. Ry. Co., 44 Minn. 266,
N. E. 434; Bartlett v. Barrows, 46 N. W. 321; Roberts v. Robert-
22 R. I. 642, 49 Atl. 31. son, 53 Vt. 690. See Stone v.
23. Reynolds v. Gaertner, 117 Stone, 141 Iowa 438, 119 N. W.
Mich. 532; HaU v. Wabash R. 712, 20 L. R. A. (N. S.) 221, 18
Co., 133 Iowa 714, 110 N. W. Ann. Cas. 797.
1039; Munn v. Worrall, 53 N. 24a. Ante, this section, note
Y. 44; Urascheid v. Scholz, 84 98.
Tex. 265. 16 S. W. 1065 (high- 24b. White v. City of .Marion,
2 R. P.— 27
1614
Real, Property.
[§ 436
however, Avhether such words of reservation might not
occasionally be construed as words of grant, vesting
in the third person named a life estate, with remainder
in fee simple. The tendency has been to regard such
an attempted reservation of a limited estate in favor
of a third person as what the courts denominate an
"excejition" of the estate named in favor of the
grantor himself.-'*^
Sufficiency of exception. An exception must
be of part of the thing granted,-^ and must not be as
extensive as such thing, so as to be repugnant thereto.^^
Nor is it valid if the subject thereof was previously
specifically granted, as when, after granting twenty
houses, one of such houses is sought to be excepted.-'
There may be an exception, as before indicated, not
only of a particular piece of land measured horizon-
tally, but also of houses or other fixtures on the land
conveyed,-^ or of timber growing thereon,^^ or of
minerals therein,-''"
139 Iowa, 479, 117 N. W. 254;
Martin v. Cook, 102 Mich. 267, 60
N. W. 679; Burchaid v. Walther,
58 Neb. 539, 78 N. W. 1061; hi
re Dixon, 156 N. C. 26, 72 S. E.
71.
24c. See the first three cases
cited in last preceding note.
25. Sheppard's Touchstone, 78;
HaU V. Hall, 106 Me. 389, 76 Atl.
705; Moore v. Lord, 50 Miss.
229; Cornell v. Todd, 2 Denio
(N. Y.) 130.
26. Dorrell v. Collins Cro.
Eliz. 6; Shoenberger v. Lyon, 7
Watts & S. C. (Pa.) 184; Young's
Petition, 11 R. I. 636; Puckett v.
McDaniell. 96 Tex. 94, 70 S. W.
739. See Bassett v. Budlong, 77
Mich. 338, 18 Am. St. Rep. 404,
43 N. W, 984; Foster v. Runk,
109 Pa. St. 291, 58 Am. Rep.
720, 2 Atl. 25; Koenigheim v.
Miles, 67 Tex. 113, 2 S. W. 81;
Adams v. Warner, 23 Vt. 395.
27. Sheppard's Touchstone 78;
4 Kent's Comm. 468; Sprague v.
Snow, 4 Pick. (Mass.) 54.
28. Marshall v. Niles, 8 Conn.
369; Washington Mills Emery
Mfg. Co. V. Commercial Fire Ins.
Co. (C. C.) 13 Fed. Sep. 646; San-
born V. Hoyt, 24 Me. 118 Ante
§ 273.
It has been said however that
an exception of a house will
prima facie include not only the
house but the land under it.
Webster v. Potter, 105 Mass. 414.
29. Sheppard's Touchstone, 78;
Heflin v. Bingham, 56 Ala. 566,
28 Am. Rep. 776; Howard v.
Lincoln, 13 Me. 122; Putnam v.
Tuttle, 10 Gray (Mass.) 48. See
ante, § 261.
30. Snoddy v. Bolen, 122 Mo.
§ 43G]
Tbansfer Inter Vivos.
1615
The part or thing excepted, it is said, must be
described with such certainty that it may be identified,
and an exception has not infrequently been held to be
void for lack of such certainty.'^ ^ But this requirement
of certainty is, by a number of cases, subject to an
important qualification, to the effect that there is suffi-
cient certainty if the exact location of the excepted part
is left to the election of the grantor,^- or, it seems, is
capable of subsequent ascertainment otherwise.^ '^ The
effect of the invalidity of an exception out of the land
conveyed, by reason of its indefiniteness, is that the
whole tract passes by the conveyance as if no exception
had been attempted.^^
479, 24 S. W. 142, 25 S. W. 932;
Sloan V. Lawrence Furnace Co.,
29 Ohio St. 568; Whitaker v.
Brown, 46 Pa. St. 197. See ante
§ 253, note 19.
31. Bromberg v. Smee, 130
Ala. 601, 30 So. 483; Mooney v.
Cooledge, 30 Ark. 640; Nunnery
V. Ford, 92 Miss. 263, 45 Co. 722:
Andrews v. Todd, 50 N. H. 565;
Den d. Waugh v. Richardson, 30
N. C. 470; Stambaugh v. Holla-
baugh, 10 Serg. & R. (Pa.) 357;
Butcher v. Creel's Heirs, 9 Gratt.
(Va.) 201; Harding v. Jennings
68 W. Va. 354, 70 S. E. 1.
32. Butler v. Gosling, 130 Cal.
422, 62 Pac. 596; Thruston v.
Masterson, 9 Dana (Ky.) 228;
Smith V. Furbush. 68 N. H. 12.^1,
47 L. R. A. 226, 44 Atl. 398;
Dygert v. Matthews, 11 Wend. (N
Y.) 35; DeRoach v. Clardy, 52
Tex. Civ. App. 233, 113 S. W.
22; Benn v. Hetcher, 81 Va. 25,
59 Am. Rep. 645. Compare Chap-
man V. Mill Creek Coal and Coke
Co., 54 W. Va. 193. 46 S. E. 262.
Until the land excepted is as-
certained by the election of the
grantor, the parties are in the
position of tenants in common, it
has been said. Smith v. Fur-
bush, 68 N. H. 123, 47 L. R. A.
226, 44 Atl. 398.
It has been decided in England
that an exception, thus to be
subsequently ascertained by elec-
tion, involved an attempt to
create an estate in futuro, and
might consequently be invalid,
under the Rule against Per-
petuities, or otherwise. Savill
Bros., Ltd. V. Bethell (1902) 2
Ch. 523.
33. Melton v. Monday, 64 N.
Car. 295 (subsequent survey) ;
Ex parte Branch 72 N. Car. 106;
(homestead to be set off) ; Lang-
don V. New York, 6 Abb. N. Cas.
314, 93 N. Y. 129 (street to be
laid out); Consolidated Ice Co. v.
New York, 166 N. Y. 92, 59 N. E.
713 (street to be laid out).
34. Bromberg v. Smee. 130
Ala. 601, 30 So. 483; Swindall v.
Ford, 184 Ala. 137, 63 So. 651
Mooney v. Cooledge, 30 Ark. 640
Baldwin v. WMnslow, 2 Minn. 213
McAllister v. Honea. 71 Miss
1616
Real Property.
[^ 436
Since an exception is in effect merely a part of the
description of the thing granted, the subject of the
exception remains in the grantor, as before the con-
veyance, and no words of inheritance or other words
of limitation are necessary in order that the grantor
may retain the same estate in the thing excepted as he
had before.^^
An excexDtion, in its very nature, cannot operate in
favor of a person other than the grantor.^^ But we
frequently find in a conveyance language undertaking
to except a part or parts of the land as being the prop-
erty of another, or as having been previously sold or
conveyed to another/" In such cases it is obvious that
the rights of such other in the part excepted are not
properly based on the exception, but exist prior there-
to, and the effect of the words of exception is merely
256, 14 So. 264; Den d. Waugh
V. Richardson, 30 N. C. 470.
35. Smith v. Ladd, 41 Me. 314;
Lipsky V. Heller, 199 Mass. 310,
85 N. E. 453; Negaunee Iron Co.
V. Iron Cliffs Co., 134 Mich. 264,
96 N. W. 468; Emerson v.
Mooney, 50 N. H. 318; Whitaker
V. Brown, 46 Pa. St. 197; Mandle
V. Gharing, 256 Pa. 121, 100 Atl.
535; Wheeler v. Wood, 30 Vt.
242. And see cases cited ante §.
362.
The occasional Massachusetts
decisions to the contrary (Curtis
V. Gardner, 13 Mete. (Mass.) 457;
Jamaica Pond Aqueduct Corp. v.
Chandler, 9 Allen (Mass.) 170;
are evidently no longer law. See
Wood V. Boyd, 145 Mass. 176, 13
N. E. 476; Claflin v. Boston &
Albany R. Co., 157 Mass. 489, 20
L. R. A. 638, 32 N. E. 659. The
decision in Knotts v. Hydrick. 12
Rich. L. (S. Car.) 314 is based
on a passage in gheppards'
Touchstone at p. 100, which is
corrected in Preston's edition of
the work.
36. Parsons v. Miller, 15 Wend.
(N. Y.) 561; Beardsley v. New
Berlin Light & Power Co., 207
N. Y. 34, 100 N. E. 434; Redding
V. Vogt, 140 N. C. 562, 6 A. & E.
Ann. Cas. 312, 53 S. E. 337. Any
suggestion contra in Stone v.
Stone. 141 Iowa, 438, 20 L. R. A.
(N. S.) 221, 18 Ann. Cas. 797, 119
N. W. 712, cannot be accepted.
But an exception in terms of
a part of the land in favor of a
third person may operate in
favor of the grantor, to exclude
that part from the conveyance.
Corning v. Nail Factory, 40 N. Y.
209.
37. Lloyd v. Gates, 143 Ala.
231, 111 Am. St. Rep. 39, 38 So.
1022; Adams v. Hopkins. 144 Cal.
19, 77 Pac. 712; Mayberry v.
Beck, 71 Kan. 609, 81 Pac. 191;
Sanford v. Stillwell. 101 Me. 466,
§ 436] Transfer Inter Vivcjs, 1617
to charge the grantee, and persons claiming under him,
with notice of the rights of such other person. So an
exception, so called, of an outstanding dower interest,^^
does not confer on the widow a dower interest not pre-
viously existent, but merely recognizes the existence of
such interest.
Sufficiency of reservation. Upon the question
whether words of inheritance are necessary in a
reservation, in order to confer an interest greater
than for life, the cases are not in accord. It would
seem, on principle, that such words would be necessary,
in the creation of an easement or right of profit by
reservation, when they would be necessary in the crea-
tion of such a right by grant, and not otherwise. The
cases, however, ordinarily discuss the question w^ithout
reference to the consideration of the necessity of such
words in a grant. It has occasionally been decided, or
asserted, that such words are necessary in order to
reserve an easement to the grantor and his heirs,^" and
this view has been adopted in at least one state in
which a conveyance of the land itself in fee simple may
be made without the use of such words.^^ In tlie
greater number of states the courts have refused to ap-
ply the requirement of words of inheritance to the case
of a resei^v^ation of an easement, this view being some-
times based on the statute dispensing with words of
64 Atl. 843; Midget v. Wharton, E. R. Co, 156 Mass. 181, 30 N.
102 N. C. 144, 8 S. E. 778; In re E. 612; Claflin v. Boston & A.
Stokeley's Estate, 19 Pa. 476; Bell R. Co., 157 Mass. 489, 20 L. R. A.
V. Gardner & Lacey Lumber Co., 638, 32 N. E. 659; Simpson v.
85 S. C. 182, 67 S. E. 151; Har- Boston & M. R. R., 176 Mass.
man v. Stearns, 95 Va. 58, 27 359, 57 N. E. 674; Hornbeck v.
S. E. 601. Westbrook, 9 Johns. (N. Y.) 73;
38. Canedy v. Marcy, 13 Gray Kister v. Rieser. 98 Pa. 1.
(Mass.) 373; Meserve v. Meserve, 40. Dawson v. Western M. R.
19 N. H. 240; Crosby v. Mont- Co., 107 Md. 70, 14 L. R. A. (N.
gomery, 38 Vt. 238; Swick V. S.) 809, 126 Am. St. Rep. 337. 15
Sears 1 Hill (N. Y.) 17. Ann. Ca.s. 678, 68 Atl. 301. See
39. Knelle v. Knecht, 99 111. Negaunee Iron Co. v. Iron Cliffs
396; White v. New York & N. Co., 134 Mich. 264, 96 N. W. 468.
1618
Real Property.
[^ 437
inheritance for the purpose of creating an estate in
fee simj^le, and sometimes on the theory that the ease-
ment must be presumed to be of a quantum correspond-
ing to the estate of the neighboring land retained by
him, to which the easement is appurtenant.^^
§ 437. Rules of construction. The courts, in con-
nection with the construction of written conveyances, as
of other instruments, have asserted some general rules
of construction, to aid in ascertaining the intention of
the parties thereto.
In case of doubt, it is said, the conveyance is to
be construed most strongly as against the grantor, or
in favor of the grantee, on the theory, it seems, that
the words used are to be regarded as the words of the
grantor rather than of the grantee.^^ Applying this
rule, an exception or reservation in a conveyance is
construed in favor of the grantee rather than of the
grantor.^ ^
41. Ante § 362.
42. Co. Litt. 48a, 183a; Neill
V. Devonshire, 8 App. Cas. 135;
Dickson v. Van Hoose, 157 Ala.
459, 19 L. R. A. (N. S.) 717, 47
So. 718; Jenkins v. Ellis, 111
Ark. 220, 163 S. W. 524; Younger
V. Moore, 155 Cal. 767, 103 Pac.
221; Brown v. State, 5 Colo. 496;
Sweeney v. Landers, 80 Conn.
575, 69 Atl. 566; Peoria & P.
Union Ry. Co. v. Tamplin, 156
111. 285, 40 N. E. 960; Robertson
V. Lieber, 56 Ind. App. 152, 105
N. E. 66; Weaver v. Osborne, 154
Iowa 10, 38 L. R. A. (N. S.)
706, 134 N. W. 103; Chapman v.
Hamblet, 100 Me. 454, 62 Atl. 215;
Second Universalist Soc. v. Du-
dan, 65 Md. 460; Soria v.
Harrison County, 96 Miss. 109,
50 So. 443; Grooms v. Morrison,
249 Mo. 544, 155 S. W. 430;
Crane v. McMurtrie, 77 N. J.
Eq. 545, 78 Atl. 170; Outlaw
V. Gray, 163 N. C. 325, 79
S. E. 676; CoUison v. Phila-
delphia Co. 233 Pa. 350, 82
Atl. 474; Huntley v. Hough-
ton. 85 Vt. 200, 81 Atl. 452; South
& Western R. Co. v. Mann. 108
Va. 557, 62 S. E. 354; Maxwell
v. Harper, 51 Wash. 351, 98 Pac.
756; Dear Creek Lumber Co. v.
Sheets, 75 W. Va. 21, 83 S. E.
81; Green Bay & Mississippi
Canal Co. v. Hewett, 55 Wis. 96,
12 N. W. 382.
43. Cardigan v. Armitage, 2 B.
& C. 197; Jacobs v. Roach, 161
Ala. 201, 49 So. 576; Wiley v.
Sirdorus, 41 Iowa, 224; Towns
v. Brown, (Ky.) 114 S. W. 773;
Wellman v. Churchill, 92 Me.
193, 42 Atl. 352; Billings v.
Beggs, 114 Me. 67, 95 Atl. 354;
§ 437]
Tbansfer Inteb Vrv^os.
1619
The rule has been applied in the case of a lease, in
favor of the lessee/^ and in the ease of a mortgage, in
favor of tlie mortgagee.'*^ The rule has been occasion-
all.v referred to as one of last resort,^" and as one of
questionable utility or propriety.'*' There are occasion-
al suggestions to be found that the rule, while applicable
in the case of a deed poll, does not apply in the case of
an indenture, the language of which is to be regarded as
that of both parties.***
In case of a clear repugnancy between two clauses
of the conveyance, the earlier clause should, it is said,
prevail over the later clause.^^ This rule likewise has
been referred to as one of last resort,^*^ and of question-
able utilitv.^^
Derby v. Hall, 2 Gray (Mass.)
236; Bolio v. Marvin, 130 Mich.
82, 89 N. W. 563; Cocheco Mfg.
Co. V. Whittier, 10 N. H. 305;
Duryea v. New York, 62 N. Y.
592; Beardslee v. Light etc. Co.,
207 N. Y. 34, 100 N. E. 434;
Klaer v. Ridgeway, 86 Pa. 329;
Sheffield Water Co. v. Elk Tan-
ning Co., 225 Pa. 614, 74 Atl.
742; Bradley v. Virginia Ry. &
Power Co., 118 Va. 233 87 S.
E. 721.
44. Doe V. Dixon, 9 East 15;
Dann v. Spurrier, 3 Bos. & P.
399.
45. Stuart v. Worden, 42 Mich.
154, 3 N. W. 876; United States
Mortgage Co. v. Gross, 93 111. 483.
46. Patterson v. Gage, 11 Colo.
50; Swan v. Morehouse, 6 Dist.
Col. 225; Falley v. Giles, 29 Ind.
114; Carroll v. Granite Mfg. Co.,
11 Md. 411; Biddle v. Vande-
venter, 26 Mo. 500; Flagg v.
Eames, 40 Vt. 16, 94 Am. Dec.
363.
47. Taylor v. St. Helens Corp.,
6 Ch. D. 264, per .lessel M. R.;
Swan V. Morehouse, 6 Dist. Col.
225; Biddle v. Vanderventer, 26
Mo. 500.
48. Sheppard's Touchstone 87,
2 Blackst. Coram. 380; Browning
V. Beston, Plowd 131; Palmer
V. Evangelical Baptist Benevolent
& Missionary Soc. 166 Mass. 143,
43 N. E. 1028; Union Water
Power Co. v. Lewiston, 101 Me.
564, 65 Atl. 67.
49. Sheppard's Touchstone, 88;
Norton Deeds, 80; Robertson v.
Robertson, 191 Ala. 297, 68 So.
52; Tubbs v .Gatewood, 26 Ark.
128; Havens v. Dale, 18 Cal. 359;
Lewman v. Owens, 132 Ga. 484;
Marden v. Leimbach, 115 Md.
206, 80 Atl. 958; Blackwell v.
Blackwell, 124 N. C. 269, 32 S.
E. 676.
50. Bush V. Watkins, 14 Beav.
425; Berners v. Real Estate Co.,
134 Mo. App. 290, 114 S. W. 131;
Waterman v. Andrews, 14 R. I.
589.
51. McWilliams v. Ramsay, »'?3
Ala., 813; Pike v. Munroe, 36 Me.
309, 58 Am. Dec. 751.
1620
Real. Property.
[§ 437
Language of premises as controlling. It was
a well established rule of the common law that, in the
case of a clear repugnancy between the premises and
the haheudmn, the premises would prevail to the ex-
tent that an estate specifically limited in the gTantini>'
clause could not be cut down to a less estate or in-
validated by the language of the h<fhendum.''~ This rule
w^as a])])lied, however, only when there was a specific
limitation in the premises and, in the absence of such a
limitation, the qumiium of the estate conveyed might
be determined by the language of the habendum. For
instance, while a conveyance without words of inheri-
tance would pass merely a life estate, the insertion of
such words in the habendum was sufficient to supply
their lack in the premises, for the purpose of creating
an estate in fee simple, as for instance, in the case of a
conveyance to A, to have and hold to A and his heirs."'"
And on the same principle where, under the modern
52. Throckmerton v. Tracy, 1
Plowd. 145; 2 Blackst. Comm.
298; 2 Sanders, Uses & Trusts
155, note; Challis, Real Prop.
(3rd Ed.) 411; Norton Deeds
294.
Even at common law, although
the grant in the premises was
to A. and his "heirs," the haben-
dum might show that a fee tail
only was created, this being re-
garded, not as abridging the
estate granted, but as merely
a qualification of the word
"heirs" as first used. Co. Litt.
21a; Turnman v. Cooper, Cro.
Jac. 476; Altham's Case, 8 Coke,
154b. See Smith v. Lindsay. 37
Pa. Super Ct. 171. A conveyance
to A. and the heirs of his body,
habendum to him and his heirs
forever, gave A. an estate tail,
probably with a fee simple ex-
pectant. Co. Litt. 21a and Mar-
grave's note; Corbin v. Healy, 20
Pick. (Mass.) 514. See Hunter v.
Patterson, 142 Mo. 310, 44 S. W.
250.
The English authorities are to
the effect that the habendum,
may operate to enlarge the estate
named in the pr^^mises, though
not to abridge it. See Co. Litt.
299a, 2 Sanders, Uses & Trusts
(5th Ed.) 156; Challis' Real Prop.
(3rd Ed) 411; Kendal v. Macfeild
Barn. Ch. Rep. 46. But see
Karchner v. Hoy, 151 Pa. 383, 25
Atl. 20.
53. Co. Litt. 183a; Sheppard's
Touchstone, 76, 102, 113; Altham's
Case, 8 Coke, 154b; Berry v.
Billings, 44 Me. 416, 69 Am. Dec.
107; Havens v. Sea Shore Land
Co., 47 N. J. Eq. 365, 20 Atl. 497:
Phillips V. Thompson, 73 N. C.
543; McLeod v. Tarrant, 39 S. C.
271, 20 L. R. A. 846. 17 S. E. 773;
§ 437]
Transfer Inter Vivos.
1621
statutes ill force in many states,^^ a grant to A, without
words of inheritance, creates a fee simple, or passes
whatever estate the grantor may have, the hahendum
may show that an estate for life only is intended to be
conveyed. ^^
AVhile the common-law rule that an estate specifical-
ly limited in the premises cannot be abridged by the
habendum is still not infrequently asserted and oc-
casionally receives a practical application,^^' the tendency
Hanks v. Folsom, 11 Lea, (Tenn.)
555.
54. Ante § 21(a).
55. McDill V. Meyer, 94 Ark.
615, 128 S. W. 364; Montgomery
V. Sturdivant, 41 Cal. 290; Buck
V. Garber, 261 111. 378, 103 N. E.
1059; Doren v. Gillum, 136 Ind.
134, 35 N. E. 1101; Yeager v.
Farnsworth, 163 Iowa, 537, 145 N.
W. 87; Bodine's Adm'rs v. AHhur,
91 Ky. 53, 34 Am. St. Rep. 162.
14 S. W. 904; Baskett v. Sellars,
93 Ky. 2, 19 S. W. 9; Kelly v.
Hill,— (Md.),— 25 Atl. 919; Week-
ley V. Weekley 75 W. Va. 280, 83
S. E. 1005.
It has even been decided that
since, under these statutes, the
presence of words of inheritance
is immaterial, the habendum may
show that a life estate only is
intended, although the grant is
in terms to one and his heirs.
Barnett v. Barneft. 10? Cal. 298.
37 Pac. 1049; Davidson v. Manson
lie Mo. 608, 48 S. W. 635;
Trlplett V. Williams, 149 N. C.
394, 24 L. R. A. (N. S.) 514,
63 S. E. 79; Contra. Prindle v.
Iowa Soldiers' Orphans' Home,
153 Iowa, 234, 133 N. W. 160.
56. Dickson v. Van Hoose, .157
Ala. 459, 19 L. R. A. (N. S.) 719.
47 So. 718; Caulk v. Pox, 13 Fla.
148; Kron v. Kron, 195 111. 181, 62
N. E. 809; Chamberlain v. Runkle,
28 Ind. App. 607, 63 N. E. 486;
Richards v. Richards, 60 Ind.
App. 34, 110 N. E. 103;
Prindle v. Iowa Soldiers' Orphans'
Home, 153 Iowa, 324, 133 N. W.
106; Land v. Land, 172 Ky. 145,
189 S. W. 1; Lurk v. McNabb, 111
Md. 641. 74 Atl. 825; Smith v.
Smith, 71 Mich. 633, 40 N. W. 21;
Teague v. Sowder, — (Tenn.) — 114
S. W. 484; Reese Howell Co.
V. Brown. 48 Utah, 142, 158 Pac.
684.
So after giving in clear terms
a fee simple, a subsequent clause
undertaking to state the persons
to whom the land should pass on
the grantee's death has been re-
garded as invalid. Marsh v.
Morris, 133 Ind. 54«, 33 N. E.
290: Humphrey v. Potter, 24 Ky.
L. Rep. 1264, 70 S. W. 1062;
Robinson v. Payne, 58 Miss. 690;
Wilkins v. Norman, 139 N. C. 40,
ni Am. St. Rep. 767, 51 S. E.
797.
In Morton v. Babb, 251 111. 488,
96 N. E. 2'9. it was decided that
where the granting clause was
to A and his heirs subject to a
limitation over to B., such limita-
tion over was valid and effective
although the habendum was to A
1622
BeaIi Propehty.
[^ 437
at the present time is very considerably to limit its
operation. Even thongii the language of the habendum,
or of some other subsequent clause of the conveyance
is, considered by itself, inconsistent with that of the
premises, the court will frequently refuse to recognize
any inconsistency and, viewing the instrument as a
whole rather than as an aggregate of distinct parts,
will consider the habendum or other subsequent clause
merely as an aid in the construction of the premises. ^^
In this way, without any explicit repudiation of the
common-law rule, the court may accord to the habendum
a preponderating influence such as it did not have
at common law.^^ So it has been said that the common-
law rule is one to be applied only when there is an
irreconcilable conflict between the two parts of the
convey ance.^^
and his heirs without the limita-
tion over, it being said that in
case of inconsistency the grant-
ing clause should control.
In Cole V. Collie, 131 Ark. 103,
198 S. W. 710, it was held that
an exception of the minerals in
the land conveyed, inserted in
the Jiabendum. was nugatory.
57. McWilliams v. Ramsey, 23
Ala. 813; Whetstone v. Hunt, 78
Ark. 230, 8 A. & E. Ann. Cas. 443,
93 S. W. 979; Barnett v. Barnett,
104 Cal. 298, 37 Pac. 1049; Bray
V. McGinty, 94 Ga. 192, 21 S. E.
284; Husted v. Rollins, 156 Iowa,
546, 137 N. W. 462, 42 L. R. A. N.
S. 378; Palmer Oil & Gas. Co. v.
Blodgett, 60 Kan. 712, 57 Pac.
947; Wilson v. Moore, 146 Ky.
679, 143 S. W. 431; May v. Jus-
tice, 148 Ky. 696, 147 S. W. 409;
Putnam v. Pere Marquette R. R.,
174 Mich. 246, 140 N. W. 554;
Davidson v. Manson, 146 Mo. 608,
48 S. W. 635; Triplett v. Wil-
liams, 149 N. C. 394, 24 L. R. A.
N. S. 514, 63 S. E. 79; Fogarty v.
Stach, 86 Tenn., 610, 8 S. W.
846; Johnson v. Barden, 86 Vt.
19, Ann. Cas. 1915 A, 1243, 83
At. 721.
58. See Barnett v. Barnett, 104
Cal. 300, 37 Pac. 1050; Garrett v.
Wiltse, 252 Mo. 699, 161 S. W.
694; Jones v. Whichard, 163 N. C,
241, 79 S. E. 503; Culpepper Nat.
Bank v. Wrenn, 115 Va. 55, 78
S. E. 620; Weekley v. Weekley. 75
W. Va. 280, 83 S. E. 1005.
59. McWilliams v. Ramsay, 23
Ala. 813; Whetstone v. Hunt, 78
Ark. 230, 93 S. W. 979; Richards
V. Richards, 60 Ind. App. 34, 110
N. E. 103; Henderson v. Mack,
82 Ky. 379; Land v. Land, 172
Ky. 145. 189 S. W. 1; Robinson
V. Payne, 58 Miss. 690; Black-
well v. Blackwell, 124 N. C
269, 32 S. E. 676.
§ 437] Transfeb Inter Vivos. 1623
Occasional!}^ the application of the common-law rule
referred to has been regarded as called for when an
estate in fee simple was clearly created by the granting
clause, and subsequently a limitation over in favor of
another j^erson was inserted, to take effect upon the
death of the grantee under some particular contingency,
as for instance, death without issue, with the result of
regarding such limitation over as invalid because op-
erating to abridge the estate previously created.''^
Such a view is, however, difficult to accept. An execu-
tory limitation in defeasance of a fee simple is perfectly
valid when it occurs in a will;*'^ and there is no reason
why it should not be so regarded when it occurs in a
conveyance i)iter vivos. Indeed the validity of such a
limitation, taking etfect under the Statute of Uses, has
long been recognized, being the ordinary case of a
"shifting use."^^ The common-law rule that an estate
given in the granting clause cannot be subsequently cut
down to a less estate does not properly apply to such a
case of a mere possibility of the divesting of the fee
simple estate by reason of the occurrence of some future
contingency, even though this is named to occur at
the time of the death of the grantee. The grantee has,
in spite of this divesting clause, an estate in fee simple
and not a life estate, so long as he has any estate what-
soever.^^
60. Scull V. Vaugine, 15 Ark. ton v. Babb, 251 111. 488, 96 N.
695; Carl Lee v. Ellsberry, 82 E. 279; Fogarty v. Stack, 8G
Ark. 29, 12 L. R. A. N. S. 957, Tenn. 610, 8 S. W. 846.
101 S. W. 407; Palmer v. Cook, 61. Ante §§ 160, 163b.
159 111., 300, 50 Am. St. Rep. 165, 62. Ante § 157.
42 N. E. 796; Lamb v. Medsker, 63. A like criticism may be
35 Ind. App. 662, 74 N. E. 1012 made, it is submitted, of occasion-
(semble) ; Ray v. Spears, 23 Ky. al decisions that after a clause
Law Rep. 14, 64 S. W. 413; creating a fee simple estate, a
Hughes V. Hammond, 130 Ky. subsequent clause creating a pow-
694, 26 L. R. A. N. S. 808, 125 er of disposition, the exercise
S W. 144; Ex parte Town, 17 S. of which would divest the fee
C. 532; Glenn v. Jamison, 48 S. simple, is invalid. See e. g.
C. 316, 26 S. E. 277; Contra. Mor- Pritchett v. Jackson, 103 Md. 696,
1624
Real. Property.
[§ 438
§ 438. Consideration. A conveyanee is not, prop-
erly speaking, a contract, though it is usually the result
of agreement, and a consideration is consequently not
necessary to its validity, except when the conveyance is
one operating under the Statute of Uses.^* In other
words, the owner of land has the same right to make
a gift thereof to another person as he has to sell it, and
the only persons who can question the validity of the
conveyance for want of consideration are creditors who
may thereby lose the means of satisfying their de-
mands.*^^ The absence of consideration may also de-
prive the grantee of the right to claim the position of a
purchaser for value as against the adverse rights of
third persons,®^ as well as of the right to ask a refor-
mation of the conveyance on account of mistake.^'^ In
some states, by reason of a statute abolishing private
seals, or changing their effect, the fact that the con-
es At. 965; Blair v. Muse, 83
Va. 238, 2 S. E. 31.
64. 1 Sanders, Uses & Trusts
67, 4 Kent. Comm. 462; McKee v.
West, 141 Ala. 531, 109 Am. St.
Rep. 54, 37 So. 740; Kline v.
Kline, 14 Ariz, 369, 128 Pac. 805;
Tillaux V. Tillaux, 115 Cal. 663, 47
Pac. 691; Campbell v. Whitson,
68 111. 240, 18 Am. Rep. 553;
Thompson v. Thompson, 9 Ind.
323, 68 Am. Dec. 638; Conway v.
Rock, 139 Iowa, 162, 117 N. W.
273; Hanson v. Buckner's Exc'r.
4 Dana (Ky.) 251, 29 Am. Dec.
401; Laboree v. Carleton, 53 Me.
211; Goodwin v. White, 59 Md.
503; Beal v. Warren, 2 Gray
(Mass.) 447; Gale v Gould, 40
Mich. 515; Burnett v. Smith, 93
Miss. 566, 47 So. 117; Masterson
V. Sheahan,— Mo.— 186 S. W. 524;
Campbell v. Tompkins, 32 N. J.
Eq. 170; Mosely v. Mosely, 87 N.
Car. 69; Howard v. Turner, 125
N. Car. 107, 34 S. E. 229; Carna-
gie V. Diven, 31 Oreg. 366, 49
Pac. 891; Kelly's Appeal, 108 Pa.
29; Brown v. Brown, 44 S. C.
378, 22 S. E. 412; Bernardy v.
Colonial & U. S. Mtge. Co., 17 S.
Dak. 637, 106 Am. St. Rep. 791, 98
N. W. 166; Battle v. Claiborne,
133 Tenn. 286, 180 S. W. 584.
65. Post, § 587.
66. Post. §§ 566-579.
67. Enos V. Stewart, 138 Cal.
112, 70 Pac. 1005; Strayer v.
Dickerson, 205 111. 257, 68 N. E.
767; St. Clair v. Marquell, 161
Ind. 56, 67 N. E. 693; Shears v.
Westover, 110 Mich. 505, 68 N. W.
266; Powell v. Morisey, 98 N. Car.
426, 2 Am. St. Rep. 343, 4 S. E;
185; Hout V. Hout, 20 Ohio St.
119; Burgson v. Jacobson, 124
Wis. 295, 102 N. W. 56:!.
§ 438] Transfer Inter Vivos. 1625
veyance is voluntary would constitute a defense to an
action on the grantor's covenants/'^
Although there can be not the slightest question
that a conveyance is ordinarily valid without any con-
sideration, expressions are to be found in judicial
opinions in this regard which may tend to mislead.
For instance, in upholdng a conveyance, the courts oc-
casonally refer to the consideration as being sufficient,^^
and not infrequentlj^ it is stated that love and aifection
constitute a sufficient consideration.'^'^ And likewise,
the statement that the seal on the conveyance imports
a consideration is calculated to imply that a consider-
ation is, apart from the seal, necessary to a conveyance.'^
But there are few, if any, actual decisions, that a con-
veyance, not operating under the Statute of Uses, is
invalid as against the grantor or his heirs, by reason of
lack of consideration.
Ordinarily in a conveyance, a consideration, fre-
quently a nominal sum merely, is named, and the re-
ceipt thereof is expressly acknowledged. Such a clause
in the conveyance serves to rebut any implication of a
resulting use or trust in favor of the grantor,'^- and
68. See Wilbur v. Warren, 104 Y. 660. So it has been said that
N. Y 192, 10 N E. 263. no consideration is necessary for
69. See e. g. Barnes v. Mult- a conveyance to children or
nomah County, 145 Fed. 695; grandchildren. Spencer v. Razor,
Steen v. Steen, 169 Iowa, 264, 251 111. 278, 96 N. E. 300. And it
151 N. W. 115; Bissell v. Taylor, has been said that a "good" con-
41 Mich. 702, 3 N. W. 194; An- sideration is sufficient, without
derson v. Baines, 156 Mo. 664, 57 stating what is a good considera-
S. W. 726; Boyd v. Lloyd, 86 tion. Powers v. Munson 74, Wash.
Ark. 169, 110 S. W. 596; Jones 234, 133 Pac. 453.
V. Gatliff,— (Ky.)— 113 S .W. 436; 71. Rendleman v. Rendlenian,
Ames V Moore, 54 Ore. 274, 101 156 111. 568, 41 N. E. 223; Brown
Pac. 769. V. Brown, 44 S. Car. 378, 22 S.
70. See e. g. Conley v. Nailor, E. 412; Golle v. State Bank of
118 U. S. 127, 30 L. Ed. 112; Wilson Creek, 52 Wash. 437, 10(t
Oliphant v. Llversidge, 142 111. Pac. 984.
160, 30 N. E. 334; Studybaker v. 72. Peeney v. Howard, 79 Cal.
Cofield, 159 Mo. 59C, 61 S. W. 525, 4 L. R. A. 826, 12 Am. St.
246; Loeschlgk v. Hatfield, 51 N. Rep. 162, 21 Pac. 984; Meeker v.
1626
Heal. Property.
[§ 438
likewise to furnish support for the conveyance as a
bargain and saleJ^ But the fact that the instrument
does not recite the payment of a consideration does not
affect the right of the grantee to show its payment.^*
An acknowledgment in the instrument of the receipt
of the consideration is conclusive upon the parties as
to the fact that a consideration was paid, in so far as
the payment of a consideration may be regarded as
necessary to support the conveyance/^ or in so far as
such payment might serve to exclude any presumption
of a resulting trust in favor of the gTantor.'^ It is,
however, for most purposes, open to contradiction, as is
Meeker, 16 Conn. 383; Acker v.
Priest, 92 Iowa, 610, 61 N. W.
235; Groff v. Rohrer, 35 Md. 327;
Gould V. Lynde, 114 Mass. 366;
Moore v. Jordan, 65 Miss. 229, 7
Am. St. Rep. 641, 3 So. 737; 2
Story, Eq. Jur. § 1199.
73. Ante § 428.
■74. Fisher v. Smith, Moore,
569; Smith v. Lane, 1 Leon. 170;
Goad V. Moulton, 67 Cal. 536, 8
Pac. 63; Lowry v. Howard, 35
Ind. 170, 9 Am. Rep. 676; Boynton
V. Rees, 8 Pick. (Mass.) 329, 19
Am. Dec. 326; Underwood v.
Campbell, 14 N. H. 393; Wood v.
Chapin, 13 N. Y. 509, 67 Am. Dec.
62; Den d Siprings v. Hanks, 27
N. C. 30; Sprague v. Woods, 4
Watts & S. (Pa.) 192; Jackson v.
Dillon's Lessee, 2 Overt (Tenn.)
261; Wood v. Beach, 7 Vt. 522.
75. Russ V. Mebins, 16 Cal. 35o;
Cheesman v. Nicholl, 18 Colo. App.
174, 70 Pac. 797; Kimball v.
Walker, 30 111. 482, 511; Aber-
nathie v. Rich. 256 111. 166, 99 N.
E. 883; Acker v. Priest, 92 Iowa.
610, 61 N. W. 235; Maxwell v.
McCall, 145 Iowa, 687, 124 N. W.
760; Beavers v. McKinley, 50 Kan.
602, 32 Pac. 363, 33 Pac. 359;
Goodspeed v. Fuller, 46 Me. 141;
McKusick V. Washington County
Commissioners, 16 Minn. 151;
Strong V. Whyback, 204 Mo. 341,
12 L. R. A. N. S. 240, 102 S. W.
968; Morse v. Shattuck, 4 N. H.
229; Farrington v. Barr, 36 N. H.
86; McCrea v. Purmort, 16 Wend.
(N. Y.) 460, 30 Am. Dec. 103;
Deaver v. Deaver, 137 N. Car. 240,
49 S. E. 113; Finlayson v. Finlay-
son, 17 Ore. 347, 11 Am. St. Rep.
836, 3 L. R. A. 801, 21 Pac. 57.
So such acknowledgment is
conclusive for the purpose of sup-
porting the conveyance as a deed
of bargain and sale. Fisher v.
Smith, Moor. 569; Smith v. LaBe.
1 Leon 170; Wilt v. Franklin, 1
Binn. 502; Sheppard's Touchstone-
223.
76. Story Equity Jur, § 1199; 3
Pomeroy, Eq. Jur. § 1036; Davis
v. Jernigan, 71 Ark. 494, 76 S.
W. 554; Feeney v. Howard, 79
Cal. 525, 4 L. R. A. 826, 12 Am.
St. Rep. 162, 21 Pac. 984; Luck-
hart V Luckhart, 120 Iowa, 248,
94 N. W. 461; Philbrook v.
Delano, 29 Me. 412; Weiss v.
§ 438]
Teansfer Inter Vivos.
1627
any receipt.'" Likewise the recital in the instrument as
to the amount of the consideration is ordinarily not
conclusivej^ for the same reason, that such recital is
not intended to have a legal effect, is not, so to speak,
the 'integration of a legal act,"'^ but is merely the
statement of a fact, and is as such open to explanation
or contradiction. If, however, the recital of the con-
sideration is intended to have a contractual or other
legal operation, creating or divesting a right, it is con-
clusive upon the parties to the instrument. ^^ It is for
Heitkamp, 127 Mo. 23, 29 S. W.
709; Graves v. Graves, 29 N. H.
129.
77. Morton v. Morton, 82 Ark.
492, 102 S. W. 213; Wood v.
Bangs, 2 Penn. (Del.) 435; Sul-
livan V. Lear, 23 Fla. 463, 11 Am.
St. Rep. 388, 2 So. 846; Koch v.
Roth, 150, 111. 212, 37 N. E. 317;
Rhodes v Walker,— (Ky.),— 115 S.
W. 257; Bassett v. Bassett, 55 Me.
127; Fowlkes v. Lea, 84 Miss. 509,
68 L. R. A. 925, 2 A. & E. Ann.
Cas. 466, 36 So. 1036; Shelton v.
Cooksey. 138 Mo. App. 389, 122
S. W. 331; Bingham v. Weider-
wax, 1 N. Y. 509; Marcom v.
Adams. 122 N. C. 222, 29 S. E.
333; Singletary v. Goeman, 58
Tex. Civ. App. 5, 123 S. W. 436;
Spangler v. Ashwell, 116 Va. 992,
83 S. E. 930; Halvorsen v. Hal-
vorsen, 120 Wis. 52. 97 N. W. 494.
78. Hitz v. National Metropoli-
tan Bank, 111 U. S. 722. 28 L. Ed.
577; London v. G. L. Anderson
Brass Works, 197 Ala. 16, 72 So.
3.59; Vaugine v. Taylor, 18 Ark.
65; Byers v. Locke, 93 Cal. 493.
27 Am. St. Rep. 212. 29 Pac.
119; Lloyd v. Sandusky. 203 111.
62], 68 N E. 154; Allen v. Rees.
136 Iowa, 423. 8 L. R. A. N. S.
1137. 110 N. W^ 583; Goodspeed v.
Fuller, 46 Me. 141; Wilkinson v.
Scott, 17 Mass. 249; Smith v.
Maxey. 186 Mich. 151, 152 N. W.
1011; BoUes v. Sachs, 37 Minn.
318, 3.3 N. W. 862; Goodman
v. Smith, 94 Neb. 227, 142
N. W. 521; McCrea v. Pur-
mort, 16 Wend. (N. Y.) 460,
30 Am. Dec. 103; Hebbard v.
Haughian, 70 N. Y. 54; Michael
V. Foil, 100 N. C. 178, 6 Am. St.
Rep. 577, 6 S. E. 264; Conklin v.
Hancock, 67 Ohio St. 455, 66 N.
E. 518; Grace v. McDowell. 60
Ore. 577, 120 Pac. 413; Henry v.
Zurflieh, 203 Pa. 440, 53 Atl. 243;
Miller v. Livingston. 36 Utah 174,
61 Pac. 569: KIckland v. Menasha
Wooden Ware Co.. 68 Wis. 34, 60
Ara. Rep. 831, 31 N W. 471.
79. See 4 Wigmore, Evidence §,
2425 et seq.
80. Wallace v. Meeks, 99 Ark.
350, 138 S. W. 638; Hilgeman v.
Sholl, 21 Ind. App. 86, 51 N. E.
728; Milich v. Armour Packing
Co., 60 Kan. 229, 56 Pac. 1:
Gully v. Grubbs, 1 J. .1. Marsh.
(Ky.) 387; Kramer v. Gardner,
104 Minn. 370, 22 L. R. A. (N.
S.) 492, 116 N. W. 925; Baum v.
Lynn, 72 Miss. 932, 30 L. R. A.
441. 18 So. 428: Halferty v Searce.
135 Mo. 428, ;!7 S. W. 113, 255;
1628 Real Property. [§ 438
this latter reason that the recital of the payment of the
consideration is conclusive for the purpose of sujDport-
ing the validitj^ of the conveyance. ^^ Such recital in-
volves the statement of a dispositive or vestitive fact,
and as such is not susceiDtible of contradiction, it stand-
ing, in this regard, in the same category as the words
of conveyance, or the description of the property con-
veyed. It is for a like reason that such recital cannor
be contradicted for the purpose of showing a resulting
trust in favor of the grantor.^^ The operation of the
recital is to vest the beneficial interest in the grantee,
and the recital cannot be contradicted in order to de-
prive him of such interest.
There has been considerable discussion of the ques-
tion whether the recital as to the consideration precludes
the parties from showing, not that the consideration
is different in amount from that recited, but is different
in character therefrom. The difference in character
ordinarily referred to in this connection is the difference
between a valuable consideration and a good consider-
ation, so called. The expression "good consideration,"
means, however, merely a lack of valuable consideration.
Consequently, the question whether an instrument which
recites a valuable consideration can be shown to be
based on a good consideration involves merely the
question whether it can be shown to be a gift, while the
converse question, whetlier an instrument which recites
a good consideration can be shown to be based on a
valuable consideration, involves merely the question
whether it can be shown not to be a gift. Conceding that
the recital is not conclusive as to the amount of the
valuable consideration, and the cases are in apparent
McDaniels v. United Railways of v. Darnell, 89 Wash. 226, 154
St. Louis, 165 Mo. App. 678, 148 Pac. 183; Monongohela 7ie &
S. W. 464; Kahn v. Kahn, 94 Lumber Co. v. Flannigan, 77 W.
Tex. 114, 58 S. W. 825; Walter Va. 162, 87 S. E. 161; 4 Wig-
V. Bearing, — (Tex.) — 65 S. W. more. Evidence § 2433.
380; Pierce v. Brew, 43 Vt. 292; 81. Anie. this section, note 75.
Union Machinery & Supply Co. 82. Ante, this section, note 76.
§ 438] Tkansfer Inter Vivos . 1620
unison to that effect, it is not readily perceptible why
it should be conclusive as to whether there is any valua-
ble consideration whatsoever. The cases ^^ adverse to
the right to show such a different character of consider-
ation, as it is expressed, ordinarily involve the right
to show that the conveyance was or was not an ad-
vancement, for the purpose of settling the grantor's
estate upon his death, or that it was or was not a gift,
for the purpose of determining the course of descent
from the grantee, and they are usually based on the
theory that an attempt to contradict the recital by show-
ing the presence or absence of a valuable consideration
involves an attempt to change the legal operation of
the conveyance. But, it is submitted, the operation of
the conveyance, as transferring the grantor's rights, is
the same, whether he does or does not receive something-
of value in exchange therefor, and this is so even though
the presence or absence of such a consideration may
affect the grantee's rights as regards other persons, or
the rights inter se of persons claiming under the grantee.
The very decided weight of authority is to the effect
that the recital of a valuable consideration does not
preclude a showing that there was no such consider-
ation,^^ and it has likewise been decided that a recital
83. Winningham v. Pennock, Coburn, 18 Pick. (Mass.) 397.
.'56 Mo. App. 688; Yates v. Burt, And see Miller v. Goodwin, 8
161 Mo. App. 267, 143 S. W. 73: Gray (Mass.) 542, where evidenc-e
Burrage v. Bear Isley, 16 Ohio, that the consideration was niar-
438; Patterson v- Lamson, 45 Ohio rlage was admitted for this pur-
St. 77, 12 N. E. 531; Groves v. pose though the deed recited
Groves. 65 Ohio St- 442, 62 N- merely past .services as a con-
E- 1044. sideration-
That the conveyance cannot be 84- Morton v. Morton, 82 Ark.
supported as a covenant to stand 492, 102 S. W- 213; Peck v.
seised when a valuable consider- Vandenberg, 30 Cal- 11; Carty v.
■atlon alone is recited. See Connolly, 91 Cal. 15, 27 Pac- 599;
Bedell's Case 7 Co. Rep. 133. Meeker v. Meeker, 16 Conn. 387;
Foster v. Foster. Tho. Raym. 43. Leggett v- Patterson. 114 Ga- 714,
1 Lev. 55; Elysville Co. v. Okisko. 40 S. E. 736; Rickhill v. Spraggs,
1 Md. Ch. 315; Contra- Gale v. 9 Ind- 30; Kenney v- Phillippy, 91
2 R. P.— 28
i6;jo
Real. Pkopeety.
[§ 438
of love and affection as the consideration does not pre-
clude a showing of a valuable consideration.^^
The right to show that the consideration for a con-
veyance which recites a valuable consideration was,
while a thing of value, a thing of a different kind, as
for instance, merchandise instead of money, has been
generally recognized.^^
Ind. 511; Finch v. Garrett, 102
Iowa, 381, 71 N. W- 429; Crafton
V. Inge, 124 Ky. 89, 98 S. W. 325;
Koogle V- Cline, 110 Md- 587,
(semble), 24 L. R. A- (N. S) 413,
73 Atl 672; Gale v- Coburn, 18
Pick. (Mass.) 397; Harman v-
Fisher, 90 Neb- 688, 39 L- R. A-
(N. S.) 157, 134 N. W. 246;
Speer v. Speer, 14 N. J. Eq. 240;
Voigt V. Dowe, 74 N. J. Eq. 560,
70 Atl. 344; Palmer v. Culbertson,
143 N- Y- 213, 38 N- B- 199;
Barbee v Barbee, 108 N. C. 581, 13
S. E. 215; Shehy v. Cunning-
ham, 81 Ohio St. 289, 25 L- R. A-
(N- S.) 1194, 90 N. E 805; Velteu
V. Carmack, 23 Ore. 282, 20 L.
R- A. 101, 31 Pac- 658; Lewis v.
Brewster, 57 Pa. St. 410; Wolf v.
King, 49 Tex- Civ. App. 41, 107
S. W. 617; Bruce v- Slemp, 82
Va. 352, 4 S. E. 692.
85. Attwell V. Harris, 2 Roll
Rep. 91; Gale v. Williamson, 8
Mees. & W. 405 (as against cre-
ditors) ; Harman v. Richards, 10
Hare 81 (as against creditors);
Leahy v. Dancer, 1 Molloy 313
(to show purchaser for value).
Tompson v. Cody, 100 Ga. 771,
28 S. E. 669; Nichols, Shepherd &
Co- v. Burch, 128 Ind. 324, 27 N.
E- 737; Chantland v- Sherman,
148 Iowa, 352, 125 N. W. 871;
Thomas v. Smith. 6 Ky L. Rep.
737; Scudder v. Morris, 107 Mo.
App. 634, 82 S- W. 217; Lewis v.
Brewster, 57 Pa. St. 410 {dic-
tum); Ferguson v. Harrison, 41
S. C. 340, 19 S. E. 19; Contra^
Potter V. Gracie, 58 Ala. 303;
Baxter v. Sewell, 3 Md. 334; El-
linger V. Crowl, 17 Md. 361;
Latimer v. Latimer, 53 S. C. 483,
31 S. E. 304. And see Ogden
State Bank v. Barker, 12 Utah 13,
40 Pac. 765.
86. Townend v. Toker, L- R- 1
Ch. 446; Bailey v. Litten, 52 Ala-
282; Harraway v- Harraway, 136
Ala. 499, 34 So. 836; St. Louis &
N. R. R. Co. V. Crandall, 75 Ark.
89, 112 Am- St Rep. 42, 86 S. W-
855; Carty v- Connolly, 91 Cal.
15. 27 Pac. 599; Droop v- Ride-
nour, 11 App. D. C. 224; Stone
V. Minter, 111 Ga. 45, 50 L. R.
A. 356, 36 S. E. 321; Kintner v.
Jones, 122 Ind. 148, 23 N. E.
701; Bristol Sav. Bank v. Stiger,
86 Iowa, 344, 53 N. W. 265;
Twomey v. Crowley, 137 Mass.
184; Edwards v. Latimer, 183
Mo. 610, 82 S. W. 109; Lake v.
Bender, 18 Nev. 361, 4 Pac. 711;
7 Pac. 74; Medical College La-
boratory V. New York University,
178 N. Y. 153, 70 N. E. 467;
Price v. Harrington, 171 N. C.
132, 87 S. E. 986; Conklln v.
Hancock, 67 Ohio St. 455. 66 N.
E. 518; Barnes v. Black, 193 Pa.
447, 74 Am. St. Rep. 694, 44 Atl.
§ 438] Teansfer Inter Vivos. 1631
As it is not permissible to introduce evidence as to
the consideration in contradiction of the consideratioi'
clause in so far as such clause is contractual in charac-
ter, or is otherwise intended to have a legal effect,^"
so it is not permissible to introduce evidence as to the con-
sideration in contradiction of any other clause which is
contractual in character or intended to have a legal ef-
fect. ^^ Accordingly, the language of the instrument be-
ing such as to vest in the grantee an estate free from anv
condition subsequent or limitation over, it cannot be
shown, under the pretext of proving the real considera-
tion, that there was such a condition or limitation.*'' Ancj
for the same reason, it appears, one cannot, after pur-
porting to convey land, restrict the operation of the in-
strument by introducing evidence that it was agreed, as
part consideration of the conveyance, that some part
of what would otherwise jjass by the conveyance, the
growing crop for instance, or fixtures, should not pass.^"
And the oral reservation of an easement cannot be
asserted under the pretext of showing the considera-
tion.^i
550 (semhle); Whitman v. Corley, But it has been decided that
72 S. C. 410, 52 S. E. 49; Tipton though a money consideration is
V. Tipton, 47 Tex. Civ. App. 619, recited, it may be shown that
105 S. W. 830, 118 S. W. 842; the conveyance was made in con-
Martin V. Hall, 115 Va. 358, 79 sideration of a contract to sup-
S. E. 320; Wilfong v. Johnson, port the grantor, a failure to
41 W. Va. 283, 23 S. E. 730. comply with which justified a
Contra, Thompson v. Corrie, 57 rescission. Martin v. Hall, 115
Md. 197; Lawson v. Mullinix, 104 Va. 358, 79 S. E. 320; Furst v.
Md. 156, 64 Atl. 938. Galloway, 56 W. Va. 246, 49 S.
87 Ante, this section, note 80. E. 146; Wilfong v. Johnson, 41
88. Jensen v. Crosby, 80 Minn. W. Va. 283, 23 S. E. 730. See
158, 83 N. W. 43; Louisville & ante, § 89.
N. R. Co. V. Willbanks, 133 Ga. 90. Adams v. Watkins, 103
15. 24 L. R. A. (N. S.) 374, 17 Mich. 431, 61 N. W. 774; Kamm-
Ann. Cas. 860, 65 S. E. 80; Miller rath v. Kidd, 89 Minn. 380, 99
v. Edgerton, .'!8 Kan. 36, 15 Pac. Am. St. Rep. 603, 95 N. W. 213:
894. Stewart v. McArthur, 77 Iowa.
89. Erfurth v. Erfurth, 90 ]r,2. 41 N. W. 604.
Wash. 521, 156 Pac. 523. 91. Louisville & N. R. Co. v.
1632 Real Property. [§ 438
In accordance with the rule above referred to, that
evidence of the consideration is not admissible in con-
tradiction of a clause of the conveyance intended to
have a contractual or other legal etfect, are decisions
that, when the instrument contains a covenant against
incumbrances or of warranty it cannot be shown that,
as part consideration for the conveyance, the grantee
orally assumed the payment of a particular incum-
brance, not excepted in terms from the covenant, since
this involves a direct contradiction of the language of
the covenant/-'^ It must be conceded, how^ever, that there
are a considerable number of decisions to an opposite
effect, that the grantee's oral assumption of an in-
cumbrance may be showai to affect the liability under
the covenant against incumbrances.^^ Occasionally these
latter decisions are based on the theory, a sound one, it
would seem,^^ that the assumption merely serves to aid
in the construction of the covenant, but some are based
on the theory that it serves to show^ the consideration.
If evidence of a contract which involves a direct con-
Willbanks, 24 L. R. A. (N. S.) Lamoille County Sav. Bank &
375, 133 Ga. 15, 65 S. E. 86: Trust Co. v. Belden, 90 Vt. 535.
Schrimper v. Chicago M. & S. & 98 Atl. 1002; Patterson v. Cappon,
P. R. Co., 115 Iowa, 35, 82 N. W. 125 Wis. 198, 102 N. W. 1083.
916, 87 N. W. 731; Pickett v. 93. Henderson v. Tobey, 106
Mercer, 106 Mo. App. 689, 80 S. 111. App. 154; Carver v. Louthain,
W. 285; Trout v. Norfolk & "7/. 38 Ind. 530; Hays v. Peck, 107
R. Co.. 107 Va. 576, 17 L. R. A. Ind. 389, 8 N. E. 274; Blood v.
(N. S.) 702, 59 S. E. 394; Mat- Wilkins, 43 Iowa, 565; Wachen-
tism V. Chicago etc., R. C, 42 dorf v. Lancaster, 66 Iowa, 458,
Neb. 545, 60 N. W. 925. 23 N. W. 522; Burnham v. Dorr,
92. Johnson v. Walter, 6Qi 72 Me. 198; Landman v. Ingram,
Iowa, 315, 14 N. W. 325; Flynn 49 Mo. 212; Gill v. Ferrin. 71
V. Bourneuf, 143 Mass. 277. 58 N. H. 421, 52 Atl. 558; Deaver v.
Am. Rep. 138. 9 N. E. 815; Deaver, 137 N. C. 240, 49 S. E.
Simanovich v. Wood, 145 Mass. 113; Johnston v. Markle Paper
180. 13 N. E. 391: Edison Electric Co., 153 Pa. St. 195, 25 Atl. 560.
Illuminating Co. v. Gibby Foundry 885; Johnson v. Elmen, 94 Tex.
Co., 194 Mass. 259, 80 N. E. 479; 168, 52 L. R. A. 162, 86 Am. St.
Burns v. Schreiber, 43 Minn. 468, Rep. 845, 59 S. W. 253.
45, N. W. 861; Rooney v. Kornig. 94. Post. § 452. note 42a.
80 Minn. 483, 83 N. W. 399;
§ 439] Transfer Inter Vivos. 1633
tradictioii of an operative part of an instrument is ad-
missible merely because it serves to show the considera-
tion received by one or the other of the parties, contracts
contradictory of other parts may also be shown, and
in this way "a. solemn and executed written contract
would be totally eaten away."^^''*'
§ 439. Reality of consent— Mistake. While a con-
veyance is presumed to have been made with the full
and free consent of the grantor, and correctly to em-
body his intention, it may be shown that this is not the
case, by reason of mistake, fraud, duress, or undue
influence.
If the parties are in agreement as to what they wish
and intend to do, but there is a mistake in the prepara-
tion of the instrument, so that it fails correctly to
embody their intention, equity will reform or rectify the
instrument accordingly.*^^ And so a mistake in the
words in the conveyance limiting the interest in the land
which it was agreed should be conveyed may be correct-
ed, as when there is an omission of words of inheri-
tan^^e.''^ Likewise, the fact that the conveyance pur-
95-96. See Baum v. Lynn, 72 150; Bank of Union v. Redwine,
Miss. 932, 30 L. R. A. 441, 18 So. 171 N. C. 559, 88 S. E. 878;
428. Huss V. Morris, 63 Pa. 367;
97. Ivinson v. Hutton, 98 U. Melott v. West, 76 W. Va. 739, 86
S. 79, 25 L. Ed. 66; Brown v. S. E. 759.
Cranberry Iron & Coal Co., 84 98. Chamberlain v. Thompson,
Fed. 930, 28 C. C. A. 567; Allia 10 Conn. 243, 26 Am. Dec. 390;
T. Hall, 76 Conn. 322, 56 Atl. 637; Kyner v. Boll, 182 111. 171, 54
Kerr v. Couper, 5 Del. Ch. 507; N. E. 925; Drum v. Drum, 251
Gruing V. Richards, 23 Iowa, 288; ill. 232, 95 N. .E. 1071; Whittaker
Canedy v. Marcy, 13 Gray (Mass.) v. Lewis, 264 Mo. 208, 174 S. W.
373; Benson v. Markoe, 37 Minn. 369; McMillan v. Fish, 29 N. J.
30, 5 Am. St. Rep. 816. 33 N. W. Eq. 610; Higinbotham v. Burnet..
38; Sparks v. Pittman, 51 Miss. 5 Johns Ch. (N. Y.) 184; Henley
511; Barataria Canning Co. v. y. Wilson, 77 N. C. 216; Clayton
Ott, 88 Miss. 771. 41 So 378; v. Freet, 10 Ohio St. 544; Brock
Leitensdorfer v. Delphy, 15 Mo. v. O'Dell, 44 S. C. 22, 21 S. E.
160, 55 Am. Dec. 137; Grant v. 976; Lardner v. Williams, 98
Baird, 61 N. J. Eq. 389, 49 Atl- Wis. 514, 74 N. W. 346.
1634
Real. Property.
[^ 439
ports to convey land other than that which both parties
intended should be conveyed, or that the land as con-
veyed differs from that sold, is ground for refor-
mation.^^
Occasionally it is stated that, in order to justify
the reformation of an instrument as not correctly ex-
pressing the agreement of the parties, there must have
been a mutual mistake in the preparation of the instru-
ment.^ This, however, appears questionable. If the in-
strument fails correctly to express the agreement of
the parties, there should be a right to have it reformed,
regardless of the person or persons whose mistake
caused this result.^
If the instrument as executed expresses the agree-
ment of the parties, it is no ground for reformation
that in arriving at such agreement both parties labored
under the same misconception.^ Nor will the instru-
99. Tillis V. Smith, 108 Ala.
264, 19 So. 374; Felton v. Leigh,
48 Ark. 498, 3 S. W. 638; Stevens
V. Holman, 112 Cal. 345, 53 Am.
St. Rep. 216, 44 Pac. 670; Earth
V. Deuel, 11 Colo. 494, 19 Pac.
471; Barnes v. Peterson, 136 Ga.
364, 71 S. E. 163; Keeley v.
Sayles, 217 111. 589, 75 N. E. 567;
Baker v. Pyatt, 108 Ind. 61, 9
N. E. 112; BottorfE v. Lewis, 121
Iowa, 27, 95 N. W. 262; Critch-
field V. Kline, 39 Kan. 721, 18
Pac. 898; Holbrook v. Schofield,
211 Mass. 234, 98 N. E. 97;
Fisher v. Dent, 259 Mo. 86, 167
S. W. 997; Blair v. McDonnell,
5 N. J. Eq. 327; Bush v. Hicks,
60 N. Y. 298; Pelletier v. Inter-
state Cooperage Co., 158 N. C.
403, 74 S. E. 112; CarroU v.
Ryder, 34 R. I. 383, 83 Atl. 845;
Walkeff V. Dunlop, 5 IHayw.
(Tenn.) 271. 9 Am. Dec. 787;
Abbott V. Flint's Adm'r, 78 Vt.
274, 62 Atl. 721; Carlson, v.
Druse, 79 Wash. 542, 140 Pac.
570; Baxter v. Tanner, 35 W.
Va. 60, 12 S. E. 1094; Fuchs v.
Treat, 41 Wis. 404.
1. Chapman v. Lambert, 176
Ind. 461, 96 N. E. 459; Dough-
erty V. Dougherty, 204 Mo. 228,
102 S. W. 1099; Robinson v.
Korns, 250 Mo. 663, 157 S. W.
790; Welles v. Yates, 44 N. Y.
525; Waslee v. Rossman, 231 Pa.
219, 80 Atl. 643; R. M. Cobban
Realty Co. v. Chicago, M. &
St. P. R. Co., 52 Mont. 256;
157 Pac. 173; 6 Pomeroy Eq.
Jur. § 675.
2. See 11 Columbia Law Rev.
at p. 301, article by Roland R.
Foulke, Esq.
3. Holland Blow Stave Co. v.
Barclay, 193 Ala. 200, 69 So. 118:
Toops v. Snyder, 70 Ind. 554;
Wise v. Brooks, 69 Miss. 891,
13 So. 836; Pittsburg Lumber
§ 439]
Teansfee Inter Vivos.
1635
ment be reformed, if made on a valuable consideration,
merely because it fails to accord with the intention or
expectation of one party, provided it accords with the
intention of the other, and with the terms of the agree-
ment between them.^
The fact that the failure of the instrument as writ-
ten to embody the intention of the parties arises from
a mistake of law, as distinguished from a mistake of
fact, does not prevent a reformation of the instrument
to accord with the trae intention of the parties.^ But on
the other hand, if the parties, by reason of a mistake
of law, deliberately select a particular form of instru-
ment, or deliberately insert particular language therein,
neither of them can afterwards assert that the instru-
ment as executed does not represent their agreement.*'
In other words, if the conveyance is in the form agreed
Co. V. Shell, 133 Tenn. 466, 189
S. W. 879.
4. James Holcombe & Rain-
water V. Furr, 126 Ark. '251,
190 S. W. 444; Ruby v. Ewlng.
49 Ind. App. 520, 97 N. E. 798;
Allen V. Roanoke R. & Lumber
Co., 171 N. C. 339, 88 S. E.
492; R D. Johnson Milling Co.
V. Read, 76 W. Va 557, 85 S.
E. 726.
5. Orr V. Echols, 119 Ala. 340,
24 So. 357; Haussman v. Burn-
ham, 59 Conn. 117, 21 Am. St.
Rep. 74, 22 Atl. 1065; Parish
V. Camplin, 139 Ind. 1, 37 N. E.
607; Bonbright v. Bonbrigiht.
123 Iowa, 305, 98 N. W. 784;
Lear v. Prather, 89 Ky. 501, 12
S. W. 946; Wall v. Meilke, 89
Minn. 232, 94 N. W. 688; Sparks
V. Pittman, 51 Miss. 511; Cor-
rigan v. Tiernay, 100 Mo. 276.
13 S. W. 401; Plnkham v. Pink-
ham, 60 Neb. 600, 83 N. W.
837; Green v. Morris & E. R.
Co., 12 N. J. Eq. 165; Kornegay
V. Everett, 99 N. C. 30, 5 S.
E. 30; Evants v. Strode's Adm'r,
11 Ohio 480, 38 Am. Dec. 741;
Brock V. O'Dell, 44 S. C. 22,
21 S. E. 976; State v. Lorenz,
22 Wash. 289, 60 Pac. 644; Biggs
V. Bailey, 49 W. Va. 188, 33 S.
E. 499; Whitmore v. Hay, 85
Wis. 240, 39 Am. St. Rep. 838,
55 N. W. 708. Contrn, Fowler v.
Black, 136 III. 363, 11 L. R. A.
670, 26 N. E. 596.
6. Hunt V. Rhodes, 1 Pet (U.
S.) 1. 7 L. Ed. 27; Gordere v.
Downing, 18 111. 492; Dever v.
Dever, 19 Ky. L. Rep. 1988, 44
S. W. 986; Farley v. Bryant,
32 Me. 474; Durant v. Bacot, 13
N. J. Eq, 201; Lanning v.
Carpenter, 48 N. Y. 408; Morton
V. Morris, 27 Tex. Civ. App.
262, 66 S. W. 94; 2 Pomeroy.
Eq. Jur. § 843; Pollock, Con-
tracts (Williston's Ed.) 576.
1636 Eeal Property. [<§ -439
on, the fact that, had the parties understood the law, a
ditf erent form would have been agreed on, is not ground
for reformation, while if the form of conveyance was
not agreed on, but merely the end to be attained by
the conveyance, the fact that this end is, by reason of
a mistake of law, not attained by the conveyance ac-
tually executed, may be ground for reformation.
If the conveyance is purely voluntary, that is, if
it represents a mere gift as distinguished from a sale,
the donor is ordinarily entitled to a reformation on
account of his own mistake, regardless of whether the
mistake was shared in by the donee.' On the other
hand, if the conveyance is not based on a valuable, or at
least a meritorious consideration, relief will not be
given as against the donor while living,^ and, according
to the weight of authority, it will not be given as against
the heirs or devisees of a deceased donor by reason of
the failure of the langiiage of the conveyance to ex-
press the donor's probable intention.^
A contract for the sale of land, as any other con-
tract, may be made under such a mistaken assumption on
the part of both parties as to justify relief therefrom
in equity at the suit of either of them, and the fact that
a conveyance is made in pursuance of the contract
7. Jones v. McNealy, 139 Ala. Gwyer v. Spaulding, 33 Neb. 573,
379, 35 So. 1022; Manfredo v. 50 N. W. 681.
Manfredo, 191 Ala. 322, 68 So. 9. Enos v. Stewart, 138 Cal.
157, (mistakes as to legal effect) ; 112, 70 Pac. 1005; Powell v.
Mitchell V. Mitchell, 40 Ga. 11; Powell, 27 Ga. 36; Strayer v.
Crockett v. Crockett, 73 Ga. Dickerson, 205 111. 257, 68 N. E.
647; Day v. Day, 84 N. C. 408; 767; Else v. Kennedy. 67 Iowa,
Coale V. Merryman, 35 Md. 382; 376, 25 N. W. 290; Comstock v.
Mulock V. Mulock, 31 N. J. Eq. Cook, 135 Ind. 642, 35 N. E. 909;
594; Ferrell v. Ferrell, 53 W. Miller v. Beardslee, 175 Mich.
Va. 515, 44 S. E. 187; 6 Pom. 414, 141 N. W. 566; Powell v.
Eq. Jur. § 679; 23 Harv. Law Morisey, 98 N. C. 42, 2 Am. St.
Rev. at p. 620, article by Edwin Rep. 343, 6, 4 S. E. 185; Hout v.
H. Abbott, Jr., Esq. Hout, 20 Ohio St. 119; Willey
8. Lister v. Hodgson, L. R. v. Hodge, 104 Wis. 81, 76 Am. St.
4 Eq. 30; Shears v. Westover, Rep. 852. 80 N. W. 75; Contra
110 Mich. 505, 68 N. W. 266; Mattingly v. Speak, 4 Bush
§ 439] Transfer Inter Vros. IBS'?
would not ordinarily affect tlie right to relief. ^\nietlier
there was a mistake justifying such relief is frequently
a difficult question, but it is properly one of the law of
contracts, and calls for discussion in a work on that
subject rather than in one on the law of land.^^ Wheth-
er, for instance, a mistaken supposition indulged in l)y
both the parties as to the character or value of the land
sold, or a misunderstanding between them as to the
identity of the land, is ground for rescinding the con-
veyance and relieving the grantee from liability for the
purchase money, is determined by the consideration
whether it would have been ground for rescinding the
contract of sale in pursuance of which the conveyance
was made. So when the conveyance is not made in
pursuance of a prior contract of sale, but the execution
of the conveyance constitutes the proposal or accep-
tance of an agreement for the sale of the land, the
right to a rescission of the conveyance on the ground
of mistake is determinable by the consideration Avhether
the mistake is such that it would have afforded relief
from an executory contract of sale under like circum-
stances. It may happen, however, that a conveyance
is executed, not by way of sale but by way of gift, and
then the j^rinciples which apply in the case of a contract
are not adapted to determine the rights of the parties.
Whether, in such a case, that of a purely voluntary
conveyance, the grantor will be relieved therefrom be-
cause, while it conforms with the actual intention of the
grantor, such intention is itself based on a mistaken
supposition as to the existence or non existence of a
particular fact, is a question as to which there appears
to be but little explicit authority. It would seem, how-
ever, that the donor will not be relieved by reason of
(Ky.) 316; Huss v. Morris, 63 sion of this matter is found in
Pa. 367; McMechan v. Warbur- two articles by Roland R. Foulke,
ton [1896] 1 I. R. 435. Esq. in 11 Columbia Law Rev.
10. What appears to the writ- at pp. 197, 299.
er the most satisfactory discus-
1638 Real Property. [§ 439
sucli a mistake on liis part, not induced by the donee. ^^
That a gift is not ordinarily revocable is generally
recognized, and yet in but few cases, presumably, could
the donor seeking to revoke not assert that he made the
gift under a mistaken impression, as regards the merits
of the donee, for instance, or his own ability to dispense
with the subject of the gift.
That the grantor, at the time of his execution of
the conveyance, mistakenly supposed it to be some other
character of instrument, is sufficient to justify its can-
cellation, provided at least his mistake was not the
result of negligence on his part.^^ In such a case the
instrument is not that which the grantor intended to
deliver and it is consequently not his deed,^^ though,
as just indicated, negligence on his part may operate
to prevent him from asserting that he did not intend to
execute the character of instrument which he did ex-
ecute.^* In determining the existence of negligence vel
non for the purpose of determining whether one is
bound by his execution of an instrument, a distinction
is quite frequently asserted between the case of a grant-
or or obligor who is able to read, and that of one who
is unable to read, a person of the latter description
being entitled to relief if the instrument was not prop-
erly explained to him, provided at least he sought to
have it explained, ^^ while a person of the former de-
scription is usually negligent if he fails to read it.^®
11. See, to that effect, Kerr, A. 358; Robinson v. Glass, 94
Fraud & Mistake (4th ed.) 199; Ind. 211; Roach v. Karr, 18 Kan.
Pickslay v. Starr, 149 N. Y. 529; Leddy v. Barney, 139 Mass.
432, 32 L. R. A. 703, 52 Am. St. 394, 2 N. E. 107; Hallenbeck
Rep. 740, 44 N. E. 163 v. Dewitt,^ 2 Johns. (N. Y.) 404;
12. Hammon, Contracts, § 93; Providence Twp. v. Kesler, 67
4 Wigmore, Evidence, § 2416. N. C. 443; Weller's Appeal, 103
13. Harriman, Contracts (2nd Pa. 594; Sheppard's Touchstone,
ed.), § 80. 56.
14. Pollock, Contracts (Willie- 16. Dawson v. Burrus, 73 Ala.
ton's Edition) 587. Ill; McHenry v. Day, 13 Iowa
15. Chicago, etc., R. Co. v. 445, 81 Am. Dec. 438; Van Sick-
Belliwith, 83 Fed. 437, 28 C. C. les v. Town, 53 Iowa, 259; El-
'^ 439] Transfer Inter Vivos. 1639
Fraud. The making of the conveyance by the
grantor may have been induced by some fraudulent
misrepresentation on the part of the grantee, or, which
is in etfect the same, the conveyance may have been
made by way of compliance with a contract of sale
which was induced by fraudulent misrepresentation.
A vendor's right to repudiate a bargain obtained from
him by fraud is not lost by the fact that he has executed
a conveyance is accordance with the bargain, unless he
did this with knowledge of the fraud, so as to justify a
finding that he waived his rights in this regard. The
execution of the conveyance is material only in so far as
it renders it necessary for the vendor (grantor), in
order to obtain complete relief, to effect a cancellation
of the conveyance, and this he can do, ordinarily, only
by recourse to a court of equity. The grantor may,
moreover, be entitled to a cancellation of the convey-
ance by reason of a fraud connected, not with nego-
tiations for the sale by him of the property, but with
the execution of the conveyance, as when the grantee
intentionally misstates to him the effect of the convey-
ance, or intentionally causes him to execute an instru-
ment other than that which he intends to execute. ^'^
Duress. A conveyance may be set aside be-
cause executed by the grantor under duress. Duress, as
recognized by the modern decisions consists, it has boon
said, in the actual or threatened unlawful exercise of
power possessed, or believed to be possessed, by one
party, over the person or property of another, from
dridge v. Dexter & P. R. Co., lock. Contracts, (Williston's Ed.)
88 Me. 191, 33 Atl. 974; Jackson 583. Compare cases cited 5 A.
V. Croy, 12 Johns. (N. Y.) 427; & E. Ann. Cas. 215, 11 Id. 1164.
Witthaus V. Schack, 57 How. Pr. 17. As to fraud as a ground
310; Powers v. Powers, 46 Ore. for rescission or cancellation, see
479, 80 Pac. 1058; Picton v. Gra- Pollock, Contracts (Williston's
ham, 2 Desauss (S. C.) 592; Ed.) 646-726; 2 Pomeroy, Equity,
Gibson v. Brown, (Tex. Civ. § 872 et seq; Hammon, Contracts,
App.) 24 S. W. 574. See Harri- § 117 et seq.
man. Contracts, §§ 77, 78; Pol-
.T(;40 Real Pkopeety. [§ 439
wliicli the latter lias no means of immediate relief other
than by performing the required act.^^ It ordinarily
involves either threats of bodily injury, threats of im-
prisonment, or actual imprisonment, though by a num-
ber of cases threats of detention of or injury to goods
have been regarded as sufficient for this purpose. ^^
Undue influence. A conveyance may also be
set aside on account of undue influence exerted upon the
grantor. Any influence brought to bear upon a person
entering into an agreement, or consenting to a disposal
of property, which, having regard to the age and ca-
pacity of the party, the nature of the transaction, and
all the circumstances of the case, appears to have
been such as to preclude the exercise of free and delib-
erate judgment, is considered by courts of equity to be
undue influence, and is a ground for setting aside the
act procured by its employment. The fact that the
parties stand in such a position towards one another,
either by reason of relationship, professional employ-
ment, or otherwise, that the grantor is peculiarly sus-
ceptible to the exertion of influence by the grantee, is a
consideration of primary importance in this connection,
in cases where the transaction is in itself improvident or
disadvantageous to the grantor. And the fact that the
grantor is lacking in such mental vigor as to enable
him to protect himself against imposition is a reason
for the interposition of equity to protect him, although
his mental weakness is not such as to justify him in
being regarded as totally incapacitated.-'-
In some cases threats which are of such a character
as to be insufficient to constitute duress as understood
at common law, may constitute undue influence for the
18. Harriman, Contracts, § 445. Law Rev. 255.
19. The authorities are collect- 20. Pollock, Contracts (7th
ed in Pollock, Contracts (Willis- Ed.) 600. See Hammon, Con-
ton's Ed.) 728-732; 1 Black, Res- tracts, § 138 et seq; 1 Black,
cission & Cancellation, ch. 9. Rescission & Cancellation, eh.
And see editorial note 26 Harv. 10.
§ 44()J Transfer Inter Vivos. 1641
purjDose of a court of equity, so as to justify a rescis-
sion of the conveyance. If a wife executes a conveyance
by reason of her husband's threats of physical injury,
the conveyance may be set aside as having been pro-
cured by duress, while if she executes it by reason of
her husband's threats of abandonment, it is, it is said, a
case of undue influence.^ ^
§ 440. Effect of alterations. Since the conveyance
takes effect only upon delivery,^^ until that is effected,
the grantor may make such alterations or insertions
therein as he may desire.-^
An alteration made, after delivery, by consent of
all the parties to the conveyance, is binding and effective
if it is followed b}^ a new delivery of the instrument,"^
in so far as no proprietary rights vested in the grantee
by the conveyance as it originally stood are divested by
such alteration,-^ and subject to the qualification that
the subsequent record of the conveyance does not affect
an innocent third person with notice of the alteration
unless it was acknowledged after the alteration.^^ The
new delivery, in such case, would ordinarily be inferred,
21. Pollock, Contracts, (Willis- 488, 82 Am. St. Rep. 470, 59
ton's Edition) 729, note. N. E. 958; Tucker v. Allen, 16
22. Post, § 461. Kan. 312; Bassett v. Bassett, 55
23. Sheppard's Touchstone, 55; Me. 127; Byers v. McClanahan,
Miller v. Williams, 27 Colo. 34, 6 Gill & .T. (Md.) 250; Burns v.
59 Pac. 740: Tharp v. Jamison, Lynde, 6 Allen (Mass.) 305;
154 Towa 77, 39 L. R. A. (N. Fitzpatrick v. Fitzpatrick, 6 R.
S.) 100, 134 N. W. 58.T; Coney I. 64, 75 Am. Dec. 681.
V. Laird, 153 Mo. 408. 55 S. W. 25. See post, § 465.
96; Reformed Dutch Church of 26. Moelle v. Sherwood, 148
North Branch v. Ten Eyck, 25 U. S. 21, 37 L. Ed. 350; Sharpe
N. J. Law, 40; Wetherington v. v. Orme, 61 Ala. 263; Webb v.
Williams, 134 N. C. 276, 46 S. Mullins, 78 Ala. Ill; Wagle v.
E. 728; Duncan v. Hodges, 4 Mc- Towa State Bank, 175 Iowa 92,
Cord (S. C.) 239, 17 Am. Dec. 156 N. W. 991; Collins v. Collins,
734. 51 Miss. 311, 24 Am. Rep. 632;
24. Mularin v. United States, 1 See Coit v. Starkweather, 8
Wall. (U. S.) 282, 17 L. Kd. Conn. 289. Waldron v. Waller,
594; Stiles v. Probst, 69 III. 65 W. Va. 605, 32 L. R. A. (N.
382; Abbott v. Abbott, 189 111. S.) 285, 64 S. E. 964.
1G42
Real Propekty.
[§ 440
it appears, from the fact that the grantor makes or ap-
proves the alteration, such fact, taken in connection
with the fact of the prior delivery, serving to show an
intention that the instrument shall be operative as al-
tered.^" There is, however, considerable difficulty in
inferring a new delivery Aj/hen the grantor merely con-
sents to the alteration, which is made out of his pres-
ence, especially if he does nothing thereafter to indicate
his intention that the instrument, as altered, shall op-
erate as his act and deed.^^
An alteration made after the delivery of the convey-
ance is absolutely nugatory to divest property rights
vested in the grantee by the conveyance.^^ The opera-
tion of the instrument as a conveyance becomes, after
delivery, a thing of the past, and the fact that the in-
strument is then altered, or even that it is destroyed,^"
27. Speake v. United States,
9. Crouch (U. S.) 28, 3 L. Ed.
645; Woodbury v. Allegheny &
K. R. Co., 72 Fed. 371; Pretty-
man V. Goodrich. 23 111. 330;
Tucker v. Allen, 16 Kan. 312;
Coney v. Laird, 153 Mo. 408. 55
S. W. 96; Wooley v. Constant,
4 Johns. (N. Y.) 54, 4 Am. Dec.
246; Martin v. Buffaloe, 121 N.
C. 34, 27 S. E. 995; Barrington
V. Branch, 14 Serg. & R. (Pa.)
405; Bryant v. Bank of Charles-
ton, 107 Tenn. 560, 64 S. W.
895.
28. See Davenport v. Sleight,
19 N. C. 381; Burns v. Lynde, 6
Allen (Mass.) 305. Bowen, L,.
J., in Powell v. London & Prov-
incial Bank [1893] 2 Ch. at p.
563; Martin v. Hanning, 26 Up.
Can. Q. B. 80.
29. Doe d. Lewis v. Bingham,
4 Barn. & Aid. 672; Alabama
State Land Co. v. Thompson,
104 Ala. 570, 53 Am. St. Rep.
80, 16 So. 440; Faulkner v.
Feazel, 113 Ark. 289, 168 S. W.
568; Gibbs v. Potter, 166 Ind.
471, 77 N. ■ E. 942; Hollings-
worth v. Holbrook, 80 Iowa, 151,
20 Am. St. Rep. 411, 45 N. W.
561; Hunt v. Nance, 122 Ky. 274,
92 S. W. 6; Chessman v. Whitte-
more, 23 Pick. (Mass.) 231;
Robbins v. Hobart, 133 Minn. 49,
157 N. W. 908; Collins v. Col-
lins, 51 Miss. 311. 24 Am. Rep.
662; Woods v. Hilderbrand, 46 Mo.
284, 2 Am. Rep. 513; Jackson v.
Jacoby, 9 Cow. (N. Y.) 125;
Rifener v. Bowman, 53 Pa. St.
.".13; Booker v. Stivender, 13
Rich. (S. C.) 85: Stanley v.
Epperson, 45 Tex. 645; North v.
Henneberry, 44 Wis. 306.
30. See the full discussion of
the whole subject in 18 Harv.
Law Rev. at pp. 105, 165. article
by Professor Samuel Williston.
See also post § 465.
The question of the validity
§ 440] Transfer Inter Vivos. 1643
cannot well affect the property rights which it has pre-
viously vested in the grantee. In former times a dis-
tinction was said to exist in this regard between things
which lay in grant and those which lay in livery, a
material alteration or a cancellation of the conveyance
heing regarded as effective to divest the grantee's title
in the latter though not in the former case.''^ But such
a distinction is no longer recognized in England,"- and
while it has been referred to in terms of approval in
two states,^'' it apjiears to be generally ignored. But
though an alteration after deliver}^ does not operate to
divest, in favor of the grantor, property rights vested
in the grantee by the conveyance, it has the effect, in a
number of jurisdictions, at least if fraudulently made,
of rendering the instrument inadmissible in evidence,
and of thus indirectly disabling him from asserting his
rights in the land.'^ Though the validity of a convey-
ance is as such not usually affected by an alteration af-
ter delivery, any covenant or other contract contained in
the instrument, since it is executory in its nature, if?
invalidated by a material alteration, erasure, or cancel-
of an attempt to change the 60 Atl. 557; Collins v. Ball, 82
name of the grantee after deliv- Tex. 259, 27 Am. St. Rep. 877,
ery Is referred to ante, § 434 17 S. W. 614; Bliss v. Mclntyre,
notes 81-86. 18 Vt. 466. And see cases cited
31. Miller v. Mainvaring, Cro. j)ost, § 465. Contra Alabama
Car. 397; Gilbert, Evidence (6th State Land Co. v. Thompson,
Ed.) p. 94-96. 104 Ala. 570, 53 Am. St. Rep.
32. Bolton V. Bishop of Car- 80, 16 So. 440; Burgess v. Blake,
lisle, 2 H. Bl. 259; Norton, Deeds, 128 Ala. 105, 86 Am. St. Rep.
29. 78, 28 So. 963. And see Woods
33. Lewis v. Payne, 8 Cow. v. Hilderhrand, 46 Mo. 284, 2
(N. Y.) 71, 18 Am. Dec. 427; Am. Rep. 513.
Wallace v. Harmstad. 44 Pa. St. As to whether such an altera-
492. tlon should operate to exclude
34. Miller v. Luco, 80 Cal. the instrument when offered in
257, 22 Pac. 195 (.statute) ; Rob- favor of a subsequent purchaser
bins V. Magee, 76 Ind. 381; Babb or creditor, see Pollock, Con-
V. Clemson. 10 Serg. & R. 419; tracts, (Williston's Edition), p.
Plitcraft V. Commonwealth Title 849.
Tns. & Trust Co., 211 Pa. 114,
1644
Real Property.
[§ 440
latioii, made by the obligee without the consent of the
obligor.^^ A covenant or contract in an instrument of
conveyance stands in this regard in the same position
as a covenant or contract in any other instrument.
An alteration in a mortgage instrument, made by the
mortgagee after its delivery, M^thout the consent of the
mortgagor, has been decided, in a number of cases, to
invalidate the mortgage.''" These decisions are based
on the theory that since the mortgagee has a lien only,
his rights are executory in character, and consequently
the rule which makes alterations in a conveyance in-
effective to divest rights once vested by the conveyance
has no application. On the other hand in one state, in
which the mortgage vests the legal title in the mort-
gagee, it has been held that, by reason of the rule re-
ferred to, a foreclosure proceeding based on such title
may be maintained regardless of the alteration.^'^"^^ The
correctness of the decisions that an alteration invalidates
35. Ward v. Lumley, 5 Hurlst.
& N. 656; Agricultural Cattle
Ins. Co. V. Fitzgerald, 16 Q. B.
432; Alabama State Land Co. v.
Thompson, 104 Ala. 570, 53 Am.
St. Rep. 80, 16 So. 440; Hol-
lingsworth v. Holbrook, 80 Iowa
151, 20 Am. St. Rep. 411, 45
N. W. 561; Chessman v. Whitte-
more, 23 Pick. (Mass.) 231;
Lewis V. Payn, 8 Cow. (N. Y.)
71, 18 Am. Dec. 427; Withers v.
Atkinson, 1 Watts (Pa.) 236;
Wallace v. Harmstad, 15 Pa. St.
462, 53 Am. Dec. 603; Churchill
V. Capen, 84 Vt. 104, 78 Atl.
734; Waldron v. Waller, 65 W.
Va. 605, 32 L. R. A. (N. S.)
284, 64 S. E. 964; North v.
Henneberry, 44 Wis. 306
36. Murphy v. Purifoy, 52 Ga.
480; Cutter v. Rose, 35 Iowa
456; Johnson v. Moore, 33 Kan.
90, 5 Pac. 406; Russell v. Reed,
36 Minn. 376, 31 N. W. 452;
Merchants' & Farmers' Bank v.
Dent, 102 Miss. 455, 59 So. 805;
Powell V. Banks, 146 Mo. 620,
48 S. W. 664; Barnhart v. Little,
(Mo.), 185 S. W. 174; Kime v.
Jesse, 52 Neb. 60-6, 72 N. W.
1050; Marcy v. Dunlap, 5 Lans.
(N. Y.) 365; Mclntyre v. Velte,
153 Pa. St. 350, 25 Atl. 739;
Powell V. Pearlstine, 43 S. C.
403, 21 S. E. 328; Bowser v.
Cole, 74 Tex. 222, 11 S. W.
1131.
37-38. Kendall v. Kendall, 12
Allen (Mass.) 92. And see Rod-
riguez V. kaynes, 76 Tex. 225, 13
S. W. 296. Contra, Powell v.
Banks, 146 Mo. 620, 48 S. W. 664;
Mclntyre v. Velte, 153 Pa. 350,
25 Atl. 739. And see Green v.
Sneed, 101 Ala. 205, 46 Am. St.
Rep. 119, 13 So. 277 a case of
chattel mortgage.
§ 441] Teansfek Inter Vivos. 1645
the mortgage depends on the correctness of the theory
that the rights of one who has a mortgage lien are
purely executory, and this is perhaps open to question.
The execution of the mortgage, even in states where it
does not pass the legal title to the land, vests in the
mortgagee a lien, involving a power to effect the sale
of the land, in case of default in the obligation secured,
and such lien and power cannot, it would seem, be
divested by a subsequent alteration of the mortgage.^^
In any state, however, in which a conveyance is, after
alteration, inadmissible in evidence, the mortgage would
be subject to a like rule, so as to be practically nugatory
as a result of the alteration, although in theory the lien
still exists.
III. DteSCEIPTION OF THE LanD.
§ 441. General considerations. In order to make
a valid conveyance of land, it is essential that the land
itself, the subject of the conveyance, be capable of
identification, and, if the conveyance does not describe
the land with such particularity as to render this pos-
sible, the conveyance is absolutely nugatory.**' The
lang-uage of the conveyance by which the land is sought
to be identified is usually referred to as the "descrip-
tion."
39. Such a view is, however, 43, 7 Pac. 33; Huntress v. Port-
contradicted by occasional decis- wood, 116 Ga. 351, 42 S. E.
ions that a power given to a 513; Carter v. Barnes, 26 111.
chattel mortgagee to enter and 455; Wilson v. Johnson, 145 Ind.
to take the goods on the mort- 40, 38 N. E. 38, 43 N. E. 930;
gagor's land is destroyed hy an McBride v. Steinweden, 72 Kan.
unauthorized alteration of the 508, 83 Pac. 822; Wilson v. In-
instrument. Hollingsworth v. loes, 6 Gill (Md.) 121, Holme
Holbrook, 80 Iowa 151, 20 Am. v. Strautman. 35 Mo. 293; Bailey
St. Rep. 411, 45 N. W. 561; v. White, 41 N. H. :}37; Jackson
Bacon v. Hooker, 177 Mass. 335, v. Ransom, 18 Johns. (N. Y.)
83 Am. St. Rep. 279, 58 N. E. 107; Kea v. Robeson, 40 N. C.
1078. 373; Howard v. North, 5 Tex.
40. Brandon v. Leddy, 67 Cal. 290, 51 Am. Dec. 769.
R. P.— 29
1646
Real. Property.
[§ 441
The description may be by the use of a designa-
tion for the land which has a recognized application
thereto, as when one conveys the **A" estate or the
"B" farm.^^ The grantor may also describe the land
as his land in a certain town, or in a certain block, or
on a certain street, and such a description is sufficient
if the land can be identified.^^ So, a conveyance of
''all the land" or "all the property" owned by the
grantor, or of all that owned by him in a particular
district, is sufficient to convey land within the scope of
the description,^'' as is a conveyance of all one's interest
in the estate of a person deceased,^^ or of such land as
formerly belonged to or was conveyed to a particular
person.^ ^
Whenever land is occupied and improved by a build-
ing or other structure designed for a particular purpose,
which comprehends its beneficial use and enjoyment,
it may be conveyed by a term w^hich describes the pur-
pose to which it is thus appropriated.*'^ For instance.
41. See Haley v. Amestoy, 44
Cal. 132; Trentman v. Neff, 124
Ind. 503; Vaughan v. Swayzie,
56 Miss. 706; Charles v. Patch,
87 Mo. 450; Barker v. Publishers
Paper Co.,— N. H.,— 41 97 Atl.
749; Lennig's Ex'rs v. White
(Va.) 20 S. E. 831.
42. Frey v. Clifford, 44 Cal.
335; Blair v. Bruns, 8 Colo.
397; Bird v. Bird, 40 Me. 398;
Harmon v. James, 7 Smedes &
M. (Miss.) Ill, 45 Am. Dec. 296;
Doe d. Carson v. Ray, 52 N. C.
609, 78 Am. Dec. 267.
43. Pettigrew v. Dobbelaar, 63
Cal. 396; Clifton Heights Land
Co. V. Randall, 82 Iowa 89, 47
N. W. 905; Marr v. Hobson, 22
Me. 321; First Nat. Bank of
Attleboro v. Hughes, 10 Mo. App.
7; Brown v. Warren, 16 Nev.
228; Sally v. Gunter, 13 Rich.
Law (S. C.) 72; Harvey v.
Edens, 69 Tex. 420, 6 S. W. 306.
44. Sheppard's Touchstone,
250; Barnes v. Bartlett, 47 Ind.
98; Patterson v. Snell. 67 Me.
559; Butrick v. Tilton, 141 Mass.
93, 6 N. E. 563; Austin v. Dolbee,
101 Mich. 292, 59 N. W. 608;
Stewart v. Cage, 59 Miss. 558;
Barton's Lessee v. Morris' Heirs,
15 Ohio, 408; McGavock v. Deery,
1 Cold. (Tenn.) 265.
45. Eufaula Nat. Bank v.
Pruett, 128 Ala. 470; Choteau v.
Jones, 11 111. 300, 50 Am. Dec.
460; Hogan v. Page, 22 Mo. 55;
McChesney's Lessee v. Wain-
wright, 5 Ohio, 452; Gresham v.
Chambers, 80 Tex. 544, 16 S.
W. 326.
46. Johnson v. Rayner, 6 Gray
(Mass.) 107; Cunningham v.
Webb, 69 Me. 92.
^ 441]
Transfer. Inter Vivos.
1647
under the designation of a "house," a "mill," a "fac-
tory," or like expressions, not only the land beneath
the building,^'^ but also so much of the adjoining land
as is ordinarily used therewith for the purpose ex-
pressed in such designation,'*^ will pass, provided, of
course, a contrary intention does not appear. So, by a
conveyance of a "well," not merely the right to take
water from the well, but the land itself occupied by the
well, will pass.^^
By a conveyance of "water," the land under the
water does not usually pass, the proper description
being of the land as covered by water.^*^ A conveyance
of "woods" or "forests" is sufficient to pass the land
itself. ^^ A conveyance in terms of the "profits" of
land will pass the land itself, "for what is the land but
47. Comyn's Dig. Grant, E 11;
Pottkamp V. Buss, 3 Cal. Unrep.
694, 31 Pac. 1121; Dikeman v.
Taylor, 24 Conn. 219; Hatch v.
Brier, 71 Me. 542; Jamaica Pond
Aqueduct Corp. v. Ciiandler, 9
Allen (Mass.) 159; Webster v.
Potter. 105 Mass. 414; Cravens
V. Pettit, 16 Mo. 210; Lang-
worthy V. Coleman, 18 Nev. 440;
Doe d. Wise v. Wheeler 28 N.
C. 196; Wilson v. Hunter, 14 Wis.
683, 80 Am. Dec. 795.
48. Whitney v. Olney, 3 Mason
280 Fed. Cas. No. 17,595 ; Sparks
V. Hess, 15 Cal. 186; Maddox
V. Goddard, 15 Me. 218, .33 Am.
Dec. 604; Esty v. Baker, 48 Me.
495; Doane v. Broad Street Ass'n,
6 Mass. 332; Porbush v. Lom-
bard, 13 Mete. (Mass.) 109; Am-
midown v. Ball, 8 Allen (Mass.)
293; Snow v. Inhabitants of
Orleans, 126 Mass. 453; Gibson
V. Brockway, 8 N. H. 465, 31
Am. Dec. 200; Winchester v.
Hees, 35 N. H. 43; Marston v.
Stickney, 58 N. H. 609; Bogard
V. Barhan, 56 Ore. 269, 108 Pac.
214; Smith v. Martin, 2 Wms.
Saund. 400, note 2. Compare
Ogden V. Jennings, 62 N. Y. 526
So a conveyance of a "pound"
has been held to include the
land under the pound (Wooley v.
Inhabitants of Groton, 2 Cush.
[Mass.] 305), of a "rope walk,"
land actually and exclusively de-
voted to the use of the rope
walk (Davis v. Handy, 37 N.
H. 65), and of a "bridge," land
on which the bridge is erected
(Sparks v. Hess, 15 Cal. 186).
And a conveyance of a "railroad"
may include land used with a
railroad. Missouri Pac. Ry. Co.
V. Maffit, 94 Mo. 56, 6 S. W. 600.
49. Johnson v. Rayner, 6 Gray
(Mass.) 107; Mixer v. Reed, 25
Vt. 254. See Co. Litt. 5.
50. Co. Litt. 4b.
51. Co. Litt. 4b.
1G48 Real Property. [^ 442
(he profits" thereof, ^^ and the same may be said of a
conveyance of the ''use" of the land.^"
§ 442. Description by government survey. One of
the first acts passed by congress looking towards the
disposal of the public domain provided for what is
known as the "rectangular system" of surveys, which
has ever since been in force, and which furnishes the
method of description of land for all purposes of trans-
fer in those parts of the country in which the title to
land is derived from the United States. ^^ By this sys-
tem, the public lands are divided into ' ' townships, ' ' each
six miles square, these being formed by lines running
east and west, six miles apart, which are crossed, at
intervals of six miles, by lines running north and south.
Each township, thus including approximately thirty-six
square miles, is divided into thirty-six rectangular por-
tions, each one mile square, called a "section." A
section is the smallest subdivision of which the lines are
actually run on the ground, but smaller subdivisions are
recognized, these being the "quarter section," contain-
ing one hundred and sixty acres, formed by running
lines at right angles' from points on the section bound-
aries half way between the corners, and "quarter quar-
ter sections," of forty acres each. The areas of the
various divisions do not, however, always correspond
exactly to the figaires above given, owing to irregulari-
ties in the land, and the convergence of the meridians as
one goes further north.
52. Co. Litt. 4b; Doe d. Goldiu land was a grant of the minerals
V. Lakeman, 2 Barn. & Ad. 42; in place. Weakland v. Cunning-
Green V. Biddle, 8 Wheat. (U. S.) ham, (Pa.), 7 Atl. 148; Paxton
75, 76, 5 L. Ed. 566; McWilliams v. Benedum Trees Oil Co.,— W.
V. McNamara, 81 Conn. 310, 70 Va.,— 94 S. E. 472.
Atl. 1043; Caldwell v. Fulton, 53. Fitzgerald v. Faunce, 46
31 Pa. 484; Drusadow v. Wilde, N. J. L. 596: Blauvelt v. Passaic
63 Pa. 170. Water Co., 75 N. J. Eq. 351, 72
So it has been held that a Atl. 1091.
grant of the profits or royalties 54. See Rev. St. U. S. §§
from the numerals in certain 2395-2397.
^ 442] Transfer Inter Vivos. 1649
"When the land which would otherwise be comprised
within a section is in part covered by navigable waters,
"meander" lines are run to define the sinuosities of
the bank of the stream or lake, and as a means of ascer-
taining the quantity of land in the "fractional" section,
as it is called. These meander lines are not, however,
in the ordinary case, boundaries of such fractional
section, ^^ these being the banks of the stream or lake, or
the middle line thereof, in accordance with considera-
tions previously referred to.^^
Each tier of townships running north and south is
known as a "range," and the range is described with
reference to a line known as the "principal meridian,"
while each tier of townships running east and west is
describ-ed with reference to some parallel of latitude,
taken as a "principal base line." Thus, a township is
referred to as being a certain number north or south of a
certain base line, and a certain number east or west of
a certain meridian.
The thirty-six sections in a township are numbered
consecutively, beginning at the northeast corner, and
counting west therefrom, and then proceeding east on
the tier of sections next below, and so on until section
thirty-six is reached in the southeast corner. The quar-
ter section or quarter quarter section is defined with
reference to the section of which it forms a part, as
when one conveys the southeast quarter of the north-
west quarter of section ten, in township thirty-five
north, range five east.^'^
55. St. Paul & p. R. Co. v. 140 N. W. 610; Sherwin v.
Schurmeir, 7 Wall'. (U. S.) 272, Bitzer, 97 Minn. 252, 106 N. W.
19 L. Ed. 74; Hendricks v. 1046; Armstrong v. Pincus, 81
Feather River Canal Co., 138 Ore. 156, 158 Pac. 662; Brown
Gal. 423, 71 Pac. 496; Johnson v. Dunn, 135 Wis. 374, 115 N.
V. Johnson, 14 Idaho 561, 95 Pac. W. 1097.
499; Tolleston Club v. State. 141 56. Ante, §§ 300-303.
Ind. 197, 38 N. E. 214, 40 N. E. 57. The government method of
690; Berry v. IToogendoorn. 1.33 survey is briefly and clearly des-
lowa 437, 108 N. W. 923; Ar- crlbed in Warvelle, Abstracts of
nold V. Breohtel, 174 Mich. 147, Title, 138 et neq.
1650 Real Propeety. [§§ 443, 444
§ 443. Reference to plat. In many of tlie states
there are statutory provisions authorizing an owner of
hind to have it surveyed and laid off in lots and blocks,
streets, parks, and the like, and to file in the public
records a plate or map of the land as thus laid off,
authenticated and certified as may be required. There-
after any one of these lots or blocks may be conveyed
by mere reference to the number which it bears upon
the recorded plat, thus all necessity of a detailed de-
scription being obviated. The statute usually contains
provisions to the effect that the filing of the plat shall
constitute a dedication of the land marked thereon as
intended for streets or other public uses.
Even though there is no statutory provision on the
subject, or the plat is not authenticated and recorded
as required by the statute, a reference in the conveyance
to a particular plat for the purposes of description
makes the plat in effect a part of the conveyance, and
it may accordingly be utilized to identify the land con-
veyed.^^ The only effect, therefore, of the statutes pro-
viding for the record of plats, so far as concerns their
use for purposes of description, is apparently to furnish
a means for their preservation, and thus to avoid any
possible loss of the means of identifying the land.
§ 444. Monuments, courses, and distances. Land
is frequently described in a conveyance, or attempted
to be described, by naming its boundaries in detail.
Such a description, if properly made, is well calculated
to identify the land, but frequently, owing to carelessness
in making the survey on which the description is based,
or in preparing the conveyance, there is difficulty in
58. Deery v. Gary, 10 WaU. (U. grove, 83 Iowa 682, 49 N. W.
S.) 263, 19 L. Ed. 887; Sanders 1040; Erskine v. Moulton, 66 Me.
V. Ransom, 37 Fla. 457, 20 So. 276; Sanborn v. MueUer, 38
530; Sears v. King, 91 Ga. 577, Minn. 27, 35 N. W. 666; Corbett
18 S. E. 830; Peoria Gas. & v. Norcross, 35 N. H. 99; Bor-
Electric Co. v. Dunbar, 234 lU. ough of Birmingham v. Anderson,
502, 85 N. E. 229; Young V. Cos- 48 Pa. St. 253; Scliwalin v.
§ 444] Transfer Inter Vivos. 1651
locating the named boundaries on the ground. In the
case of a description by boundaries, as in other cases,
the intention of the grantor, as inferred from the terms
of the description, is the controlling consideration,'^®
and any rules which the courts may have formulated as
to the relative importance of various elements of the
description are merely intended as aids in arriving at
this intention. Boundaries are indicated by naming
natural or artificial monuments to, from, or along which
they are to run, or with reference to which the corner
points are established, or by stating the "courses and
distances" of the boundary lines, and frequently by all
these "elements" of description, as they are termed.
A monument, for the purpose of description, may
consist of an object or mark on the land, whether nat-
ural or artificial, which serves to identify the location
of a line constituting a part of the boundary, and it may
be either a permanent natural object, such as a river,
lake, ledge of rocks, or tree, or it may be an artificial
object, such as a highway, wall, ditch, or a post.
Frequently the boundary lines are defined as ex-
tending to or abutting on adjoining land, or some struc-
ture which, in its legal signification, includes the land
under it, such as a house or a mill. In such a case,* the
adjoining land or structure may be regarded as a monu-
ment,^° but the land conveyed ordinarily extends merely
Beardsley, 106 Va. 407, 56 S. E. 167; Browning's Adm'x v. At-
135; Simmons v. Johnson, 14 kinson, 37 Tex. 633.
Wis. 523. 60. Where the description of
59. Reed v. Proprietors of Locks tract A. refers to another tract,
& Canals on Merrimac River, B., for the purpose of locating
8 How. (U. S.) 274, 12 L. Ed. the boundary of A., the boundary
1077; Serrano v. Rawson, 47 of A. is to be adjusted with refer-
Cal. 62; Abbott v. Abbott, 51 ence to the boundaries of B., as
Me. 575; Codman v. Evans, 1 the parties supposed them to
Allen (Mass.) 443; Bruensmann be located, rather than as they
V. Carroll, 52 Mo. 313; White v. are actually located. Sullivan v.
Gay, 9 N. H. 126, 31 Am. Dec. Hill, 33 Ky. L. Rep. 962, 112 S.
224; Peck v. Mallams, 10 N. W. 564; Whitwell v. Spiker, 238
Y. 509; Miller v. Bryan, 86 N. C. Mo. 629, 142 S. W. 248; Staub
1652 Real Peoperty. [^ 444
to the side of the land or structure referred to,''^ while
in the ease of a monument the name of which does not
include the ownership of land, such as a highway, wall,
or post, the land conveyed usually extends to the center
thereof.®- A monument may even consist of an object
not existent or a point not fixed at the time of the con-
veyance, but which is intended to be thereafter erected
or fixed, and, when this is done, the call therefor will be
of the same effect as if the monument had existed at the
time of the conveyance."^ And so the boundary of the
land conveyed may be fixed by reference to a street
not yet laid out or opened, but intended to be laid out.®^
A "course" is the direction in which a line runs,
stated with reference, not to its terminus, but to its
correspondence with a certain point of the compass,
or its variation from the magnetic or sidereal meridan.
Inconsistencies and (ambiguities. Subject to
the controlling consideration of the intention of the
parties as to the meaning of the language used, the
primary rule in applying a description by boundaries
is that, in ease of conflict, calls for fixed and known
V. Hempton, 117 Tenn. 706, 101 S. A reference to a house as a
W. 776. monument has sometimes been
61. Ross V. Richardson, 173 regarded as referring to the edge
Ky. 255, 190 S W. 1087; City of of the eaves. Millett v. Fowle,
Boston V. Richardson, 13 Allen 8 Cush. (Mass.) 150; Sherman v.
(Mass.) 146, 154; Schwalm v. Williams, 113 Mass. 481, 18 Am
Beardsley, 106 Va. 407, 56 S. E. Rep. 522. And sometimes to the
135; Davis Colliery Co. v. West- outer surface of the wall or
fall, 78 W. Va. 735, 90 S. E. 328. foundation. Centre St. Church
62. City of Boston, v. Richard- v. Machias Hotel Co., 51 Me. 413;
son, 13 Allen (Mass.) 146, 154; Kendall v. Green, 67 N. H. 557,
Freeman v. Bellegarde, 108 Cal. 42 Atl. 178.
179, 49 Am. St. Rep. 76, 41 Pac. 63. Makepeace v. Bancroft, 12
289; Sleeper v. Laconia, 60 N. Mass. 469; Lerned v. Morrill, 2
H. 201; Tagliaferri v. Grande, 16 N. H. 197.
N. Mex. 486, 120 Pac. 730; Warfel 64. Manchester v. Hodge, 74
V. Knott, 128 Pa. St. 528, 18 Atl. N. H. 468, 69 Atl. 527; Felin v.
390; Schwalm v. Beardsley, 106 Philadelphia, 241 Pa. 164, 88
Va. 407, 56 S. E. 135. Atl. 421.
§ 444]
Teansfer Inter Vrv'os.
1653
monuments will prevail over inconsistent calls for
courses and distances, monuments being from their very
nature more likely to be correct than mere paper state-
ments as to the character of an imaginary line.''^ This
rule is, however, not absolute, and the calls for monu-
65. Newson v. Pryor's Lessee,
7 Wheat. (U. S.) 10, 5 L. Ed.
382; Watkins v. King, 118 Fed.
524, 55 C. C. A. 290; Taylor v.
Fomby, 116 Ala. 621, 67 Am. St.
Rep. 149, 22 So. 910; Paschal v.
Swepston, 120 Ark. 230, 179 S.
W. 339; Kimball v. McKee, 149
Cal. 435, 86 Pac. 1089; Riley v.
Griffin, 16 Ga. 141, 60 Am. Dec.
726; Read v. Bartlett, 255 111.
76, 99 N. E. 345; Allen v. Kersey,
104 Ind. 1, 3 N. E. 557; Helberg v.
Kepler, 178 Iowa 354, 159 N. W.
972; Shanahan v. Mclntyre, 169
Ky. 160, 183 S. W. 529; Pernam v.
Wead, 6 Mass. 131; Stefanick v.
Fortuna, 222 Mass. 83, 109 N. E.
878; Hoban v. Cable, 102 Mich.
206, 60 N. W. 466; Burnham,
Heirs of v. Hitt, 143 Mo. 414,
45 S. W. 368; Blackman v.
Doughty, 40 N. J. L. 319; White
V. Williams, 48 N. Y. 344; Johns
V. City of Pendleton, 66 Ore.
182, 46 L. R. A. (N. S.) 990,
Ann Cas. 1915B, 454, 133 Pac.
817; 134 Pac. 312; Cox v. Couch,
8 Pa. St. 147; Johnson v. Archi-
bald, 78 Tex. 96, 22 Am. St. Rep.
27, 14 S. W. 266; Schwalm v.
Beardsley, 106 Va. 407, 56 S. E.
135.
That the line of an adjoining
tract given as a means of locat-
ing a boundary, whether termed
a montiment or not, ordinarily
controls courses and distances,
see Morrow v. Whitney, 95 U.
S. 551, 24 L. Ed. 456; Rock Creek
Property Co. v. Hill, 162 Ky. 324,
172 S. W. 671; Chapman v. Ham-
let, 100 Me. 454, 62 Atl. 215;
Hill V. McConnell, 106 Md. 574
68 Atl. 199; Percival v. Chase,
182 Mass. 371, 65 N. E. 80; Smith
V. Catlin Land & Improvement
Co. 117 Mo. 438, 22 S. W. 1083;
Whitaker v. Cover. 140 N. C. 280,
52 S. E. 581; Calhoun v. Price,
17 Ohio St. 96; Airey v. Kunkle,
190 Pa. 196, 42 Atl. 533; Con-
nor V. Johnson, 59 S. C. 115,
37 S. E. 240; Pritchard v. Rebori,
135 Tenn. 328, 186 S. W. 121;
Miller v. Holt, 47 W. Va. 7, 34
S. E. 956. But see Kock v.
Gordon, 231 Mo. 645, apparently
contra.
In some cases it is stated that
courses and distances are con-
trolled by natural monuments,
as if to imply that they are
not controlled by artificial monu-
ments. Brown v. Huger, 21
How. (U. S.) 305, 16 L. Ed. 125;
Kimball v. McKee, 149 Cal. 435,
86 Pac. 1089; Thompson v. Hill,
137 Ga. 308, 73 S. E. 640; Myers
v. St. Louis, 82 Mo. 367; Hen-
nigan v. Matthews, (Ore.) 155
Pac. 169; Maddox v. Fenner, 79
Tex. 279, 15 S. W. 237.
In North Carolina, only natural
monuments, or the established
line of another tract, will con-
trol courses and distances. Tate
V. Johnson, 148 N. C. 267, 61 S. E.
741; Wilson Lumber Co. v. Hut-
ton, 152 N. C. 537, 68 S. E. 2.
1654
KeaLi Propeety.
[§ 444
ments must yield to those for courses and distances
if it in any way appears that the calls for courses and
distances are more to be relied on,^*^ and the courses
and distances may at times serve to aid in identifying
the monuments.'''^ When the courses and distances con-
flict, the whole description is to be considered to de-
termine which conforms to the intention of the parties,
and there is ordinarily no rule by w^hich preference is
to be given to one element as against the other.^^
Quite frequently the quantity or estimated quantity
of the land is named in the conveyance, but this is
considered inferior as an indication of the location of the
boundaries to the elements above named, and, if incon-
sistent, must vield to calls for courses and distances,"**
66. White v. Luning, 93 U. S.
514, 23 L. Ed. 938; Barker v.
Mobile Electric Co., 173 Ala. 28,
55 So. 364; United States v. Cam-
eron, — Ariz., — 21 Pac. 177; Mat-
thews V. Pursifull, 29 Ky. L. Rep.
1001, 96 S. W. 803; Hamilton v.
Foster, 45 Me. 32; Murdock v.
Chapman, 9 Gray (Mass.) 156;
Jamison v. Fopiano, 48 Mo. 194;
Buffalo N.. Y. & E. R. Co. v.
Stigeler, 61 N. Y. 348; Christen-
son V. Simmons, 47 Ore. 184, 82
Pac. 805; Southern Realty Inv.
Co. V. Keenan, 99 S. C. 195, 83
S. E. 39; Smith v. Hutchison,
104 Tenn. 394, 58 S. W. 226;
Joggers V. Stringer, 47 Tex. Civ.
App. 571, 106 S. W. 151.
67. Tyler v. Fickett, 73 Me.
410; Chisholm v. Thompson, 233
Pa. 181, 82 Atl. 67.
68. Preston's Heirs v. Bowmar,
6 Wheat. (U. S.) 580, 5 L. Ed.
336; McClintock v. Rogers, 11 111.
279; Blight v. Atwell, 4 J. J.
Marsh. (Ky.) 278; Loring v.
Norton, 8 Me. 61; Hall v. Eaton,
139 Mass. 217, 29 N. E. 660;
Curtis V. Aaronson, 49 N. J. L.
68, 60 Am. Rep. 584, 7 Atl. 886;
Williams v. Mayfield, 57 Tex.
364; Green v. Pennington, 105 Va.
801, 54 S. E. 877; Davies v.
Wickstrom, 56 Wash. 154, 105
Pac. 454. But that ordinarily
distances yield to courses, see
Paschal v. Swepston, 120 Ark.
230, 179 S. W. 339; Ramsay v.
Morrow, 133 Ky. 486, 186 S. W.
296; May v. Wolf Valley Coal Co.,
167 Ky. 525. 180 S. W. 781.
69. Doe d. Phillips' Heirs v.
Porter, 3 Ark. 18, 36 Am. Dec.
448; Ray v. Pease, 95 Ga. 153,
22 S. E. 190; AUen v. Kersey,
104 Ind. 1, 3 N. E. 557; Sanders
V. Godding, 45 Iowa, 463; Rock
Creek Property Co. v. Hill, 162
Ky. 324, 172 S. W. 671; Sher-
win V. Bitzer, 97 Minn. 252, 106
N. W. 1046; Pohlman v. Evan-
gelical Lutheran Trinity Church,
60 Neb. 364, 83 N. W. 201;
Christian v. Bulbeck, 119 Va. 74,
90 S. E. 661; Gilman v. Smith,
12 Vt. 150; Mclrwin v. Charle-
bois, 38 Wash. 151, 80 Pac. 285.
§ 444]
Transfer Inter Viv
.'OS.
1655
as well as to calls for monuments/'^ In par-
ticular cases, however, when the other calls do not
clearly show the intention of the parties, a call for
quantity may have a controlling effect."^
When the description of a boundary line is un-
certain and ambiguous, if the parties to the conveyance
locate on the ground a certain line as being that de-
scribed, and the grantee holds possession accordingly,
this ''practical location'' of the line is regarded as
showing the meaning of the ambiguous description,
and, as such, conclusive on each of them.'^^ Occasion-
ally it has even been decided that a line thus located and
acted on is conclusive upon the parties, though the
course as given in the conveyance is free from am-
biguity, and calls for a different line,'^
See Cecil v. Gray, 170 Cal. 137,
148 Pac. 935.
70. Thompson v. Sheppard, 85
Ala. 611, 5 So. 334; Dutra v.
Pereira, 135 Cal. 320, 67 Pac.
281; Cottingham v. Parr, 93 111.
233; Allen v. Kersey, 104 Ind.
1, 3 N. E. 557; Martin v. Frazier,
172 Iowa 63, 152 N. W. 14; Emery
V. Fowler, 38 Me. 99; Sandrett v.
Whalston, 124 Minn. 331, 144 N.
W. 1089; Friesz v. Butcher,
(Mo.), 191 S. W. 66; Doe d.
Arden v. Thompson, 5 Cow. (N.
Y.) 371; Petts v. Shaw, 15 Pa.
St. 218; Ayers v. Harris, 64 Tex.
393.
71. Montana Mining Co. v.
St. Louis Min. & Mill Co., 183
Fed, 51, 105 C. C. A. 343; Win-
ans V. Cheney, 55 Cal. 567;
Campbell v. Carruth, 32 Fla. 264,
13 So. 432; Sanders v. Godding,
45 Iowa 463; O'Brien v. Clark.
104 Md. 30, 64 Atl. 53; Hoff-
man V. City of Port Huron, 102
Mich. 417, 60 N. W. 831; Davis
V. Hess, 103 Mo. 31, 15 S. W.
324; Wilson Lumber & Milling
Co. V. Hutton' & Bourbonnais,
152 N. C. 537, 68 S. E. 2 Mc-
Dowell V. Carothers, 75 Ore. 126,
146 Pac. 800; Holden v. Cantrell,
100 S. C. 265, 84 S. E. 826; Vir-
ginia Coal & Iron Co. v. Ison,
114 Va. 144, 75 S. E. 782; State
V. Herold, 76 W. Va. 537, 85 S.
E. 733.
72. Hastings v. Stark, 36 Cal.
122; Raymond v. Nash, 57 Conn.
447; Stone v. Clark, 1 Mete.
(Mass.) 381; Wells v. Jackson
Iron Mfg. Co., 47 N. H. 235;
Den d. Haring v. Van Houten,
22 N. J. L. 61; Meeks v. Wil-
lard, 57 N. J. L. 22, 29 Atl. 318;
Linney v. Wood, 66 Tex. 22, 17
S. W. 244; Messer v. Oestreich,
52 Wis. 684, 18 N. W. 6.
73. Knowles v. Toothaker, 58
Me. 172; Kellogg v. Smith, 7
Cash. (Mass.) 375. This seems
to be an approximation to the
view held by some of the courts
that adjoining owners may lo-
cate the intervening boundary
1656 Real Propehty. [§ 445
§ 445. Boundaries on water. The question whether
land under water belongs, in certain cases, to the state
or to individuals, has been before discussed.'^ The
question now arises as to when, in case of land under
water not belonging to the state, a conveyance of land
as abutting on the water will be construed as including
such land under the water as belongs to the grantor. The
general rule of contruction of a conveyance of land
bounded by water is that, unless a contrary intention
appears, it passes the soil towards the center of the
water as far as the grantor owns.'^ Accordingly, if
the shore of the sea belongs to the owner of the upland,
it passes by a conveyance by him of land bounded
"by the sea," or "harbor," or other words descriptive
of the w^ater.'^^ And a grant of land bounded on a
navigable nontidal river, in those states in which the
land under such a river is not vested in the state,
prima facie conveys the whole interest of the grantor
so far as he owns, which is usually to the center of the
Btream.'^^ A conveyance of land bounded on a nontidal,
nonnavigable river, the land under which is usually in
the abutting ow^ner ad filum aquae, that is, to the
line by mere oral agreement. 77. Braxon v. Bressler, 64 111.
See ante, §§ 294 297. 492; Williamsburg Boom Co. v.
74. Ante, § 300-303. Smith, 84 Ky. 372, 1 S. W. 765;
75. Cicero v. Chicago, B. & Inhabitants of Warren v. Inhabit-
Q. R. Co. 270 111. 606, 110 N. E. ants of Thomaston, 75 Me. 329,
811; Brophy v. Richeson, 137 46 Am. Rep. 397; City of Boston
Ind. 114, 36 N. E. 424; Paine v. v. Richardson, 105 Mass. 351;
Woods, 108 Mass. 160. See note Butler v. Grand Rapids & I. R.
to Allen V. Weber, 80 Wis. 531, Co., 85 Mich. 246, 24 Am. St.
14 L. R. A. 361, 27 Am. St. Rep. Rep. 84, 48 N. W. 569; In re
51, 50 N. W. 514.. West Farms Road, 212 N. Y.
76. City of Boston v. Richard- 325, 106 N. E. 102; June v. Pur-
son, 105 Mass. 351; Winslow v. ceU, 36 Ohio St. 396; Jones v.
Patten, 34 Me. 25; Partridge v. Janney, 8 Watts & S. (Pa.) 436,
Luce, 36 Me. 16; Harlow v. 42 Am. Dec. 309; Richmond v.
Fisk, 12 Cush. (Mass.) 302; Thompson's Heirs, 116 Va. 178,
Freeman v. Bellegarde, 108 Cal. 81 S. E. 105; Norcross v. Grif-
179, 49 Am. St. Rep. 76, 41 Pac. fiths, 65 Wis. 599, 66 Am. Rep.
289. 642, 27 N. W. 606.
§ 445]
Transfer Inter Vivos.
1657
middle or thread of the stream, prima facie passes the
soil to such middle line J ^ In the case of a conveyance
of land bounded by a lake or pond, the same general
rule, by the weight of authority, applies, and the con-
veyance prima facie passes the soil so far as the
the grantor owns, whether this ownership extends to
the center of the lake or pond, to the high-water mark,
or to an intermediate point."^^ Occasional decisions
to the contrary, that a conveyance of land in terms
bounded by a lake or pond of a permanent character
does not prima facie pass land belonging to the grantor
under the water, ^"^ appear to be based, to a considerable
extent at least, upon the authority of decisions that
the state, and not the individual, had title to such land,
a very different matter.
The effect thus given to conveyances as passing,
prima facie, the soil under the water, is based not only
78. Hanlon v. Hobson, 24 Colo.
284, 42 L. R. A. 502, 51 Pac. 433;
Stanford v. Mangin, 30 Ga. 355;
Kinsella v. Stephenson, 265 lU.
369, 106 N. E. 50; Foster v.
Bussey, 132 Iowa 640, 109 N. W.
1105; State v. Gilmanton, 9 N.
H. 461; Canal Fund Com'rs v.
Kempshall, 26 Wend. (N. Y.)
404; Wall v. Wall, 142 N. C.
387, 55 S. E. 283; Fulmer v. Wil-
liams, 122 Pa. St. 191, 1 L. R. A.
603, 9 Am. St. Rep. 88, 15 Atl.
726; Muller v. Landa, 31 Tex.
265, 98 Am. Dec. 529; State v.
Superior Court for Cowlitz
County, 84 Wash. 252, 146 Pac.
609.
79. Hardin v. Jordan, 140 U.
S. 371, 35 L. Ed. 428; Johnson
V. Elder, 92 Ark. 30, 121 S. W.
1066; Mill River Woolen Mfg.
Co. V. Smith, 34 Conn. 462;
Brophy v. Richeson, 137 Ind.
114, 36 N. E. 424; Stevens v.
King, 76 Me. 197, 49 Am. Rep.
609 isemble) ; Paine v. Woods,
108 Mass. 160; Clute v. Fisher,
65 Mich. 48, 31 N. W. 614; Castle
V. Elder, 57 Minn. 289, 59 N. W.
197; Cobb v. Davenport, 32 N. J.
L. 360; Gouverneur v. National
Ice Co., 134 N. Y. 855, 18 L. R.
A. 695, 30 Am. St. Rep. 669;
31 N. E. 865; Lembeck v. Nye,
47 Ohio St. 336, 8 L. R. A. 578,
21 Am. St. Rep. 828, 24 N. E.
686; Conneaut Lake Ice Co. v.
Quigley, 225 Pa. 605, 74 Atl. 648;
Holden v. Chandler, 61 Vt. 291,
18 Atl. 310; Providence Forge
Fishing & Hunting Club v. Mil-
ler Mfg. Co., 117 Va. 129, 83
S. E. 1047.
80. Boardman v. Scott, 102 Ga.
404, 51 L. R. A. 178, 30 S. E.
982; Patapsco Guano Co. v.
Bowers White Lumber Co., 146
N. Car. 187, 125 Am. St. Rep.
473, 13 L. R. A. (N. S.) 81, 59
1658 Real Property. [§ 445
on the presumption that the parties intend the owner-
ship thereof to be vested in the person who is alone,
usually, in a position to make use of it, and who prob-
ably will need to do so, but also, in some decisions,
upon the ground of public policy, w^hich renders it de-
sirable to prevent the existence of small strips of land
along the margin of streams or other bodies of water,
the title to w^iich may remain in abeyance for many
years, and which may then be asserted merely in order
to harass the owner of the adjoining land.^^ Sometimes,
however, in the case of a stream, the rule is stated as
being merely an application of the principle that, when
a monument is referred to, the land conveyed extends
to the center of such monument.^^
When the land conveyed is described, not as bounded
by a stream, but by or on the "bank," "shore,"
"margin," or "edge" of the stream, or equivalent
terms are used, the land under the w-ater has usually
been regarded as intended to be excluded.^^ The same
view has been adopted in the case of conveyances of
land bounded by the margin or shore of a lake.^*
S. E. 538; Kanouse v. Slockbower, 378; Commissioners Commercial
48 N. J. Eq. 42. Waterway v. Seattle Factory
81. See dissenting opinion by Sites Co., 76 Wash. 181, 135 Pac.
Redfield, J, in Buck v. Squiers, 1042; Allen v. Weber, 80 Wis.
22 Vt. 484; Luce v. Carley, 24 531, 27 Am. St. Rep. 51. Contra,
Wend. (N. Y.) 451, 35 Am. Dec. Sleeper v. Laconta, 60 N. H.
637. 201, 49 Am. Rep. 311.
82. Sleeper v. Laconia, 60 N. H. But that the land is described
201; Child v. Starr, 4 Hill (N. as being on the side of the
Y.) 369. stream has not been regarded as
83. Rockwell v. Baldwin, 53 excluding the land under the
111. 19; Murphy v. Copeland, 51 water. Harlow v. Fish, 12 Cush.
Iowa 515, 43 Am. Rep. 118; (Mass.) 304; Hanlon v. Hobson,
Bradford v. Cressey, 45 Me. 9; 24 Colo. 284, 42 L. R. A. 502;
Child V, Starr, 4 HiU (N. Y.) Miller v. Mann, 55 Vt. 475; Mor-
369, reversing 20 Wend. (N. Y.) rison v. Keen, 3 Me. 474; Carter
149; Halsey v. McCormick, 13 N. v. Chesapeake & Ohio R. Co., 26
Y. 296; Lamb v. Ricketts, 11 Ohio, W. Va. 644, 53 Am. Rep. 116.
311; Eddy V. St. Mars, 53 Vt. 462, 38 84. Axline v. Shaw, 35 Fla.
Am. Rep. 695; Whittier v. Mont- 305, 28 L. R. A. 391, 17 So. 411;
pelier Ice Co., 90 Vt. IG, 96 Atl. Brophy v. Richeson, 137 Ind.
^ 445] Teansfee Intee Vivos. 1659
In the absence of anything to show a contrary in-
tention, a call for the bank of a stream as the boundary
has been regarded as extending the description as far
as the stream itself and not merely to the top of the
bank,^^ and as bounding the land by the low-water mark
rather than by the high-water mark.^*''
Whether a boundan^ on or by 'Hhe shore" ex-
tends the land conveyed to high or to low water mark,
has quite frequently been the subject of judicial dis-
cussion. Since the word shore, in its technical sense,
describes the land between high and low water mark,^"
a boundary on or by the shore w^ould seem properly
to carry the description as far as high water mark
only, and such is the effect which has ordinarily been
given thereto.^® But it is recognized that a considera-
tion of the whole instrument, and of the monuments
referred to therein, or of the point of beginning of the
description, may serve to show that the word "shore"
was used, in an untechnical sense, as meaning low water
mark.^*^ A like view has been taken in the case of a
114, 36 N .E. 424; AUen v. 46 Me. 127. That a different in-
Weber, 80 Wis. 531, 14 L. R. A. tention may be inferred from
361, 27 Am. St. Rep. 51, 50 N. the language used, see Dunlap
W. 514. But see Castle v. Elder, v. Stetson, 4 Mason (U. S.)
57 Minn. 289, 59 N. W. 197. 349; Palmer v. Farrell. 129
85. Murphy v. Copeland, 58 Pa. 162, 15 Am. St. Rep. 708,
Iowa, 409, 43 Am. Rep. 118, 10 18 Atl. 761.
N. W. 786; Stone v. AUgusta, 87. Ante, § 300.
46 Me. 127; Daniels v. Cheshire 88. Storer v. Freeman, 6 Mass.
R. Co., 20 N. H. 85. 435, 4 Am. Dec. 155; Montgomery
86. Murphy v. Copeland, 58 y. Reed, 69 Me. 510; Brown v.
Iowa, 409, 43 Am. Rep. 118, 10 Heard, 85 Me. 294, 27 Atl. 182;
N. W. 786; Halsey v. McCormick, Galveston City Surf Bathing Co.
13 N- Y. 296; Yates v. Van De v. Heidenheimer, 63 Tex. 559.
Bogert, 56 N. Y. 526; Lamb v. gg. whitmore v. Brown, 100
Ricketts, 11 Ohio, 311; Palmer Me. 410, 61 Atl. 985; Oakes v.
V. Farrell, 129 Pa. 162, 15 Am. De Lancey, 133 N. Y. 227, 28
St. Rep. 708, 18 Atl. 761. Contra, Am. St. Rep. 628, 30 N. E. 974;
People ex rel Highway Comm'rs Haskell v. Friend, 196 Mass. 198.
V. Madison County, 125 111. 9, 81 N. E. 962.
17 N. E. 147; Stone v. Augusta,
1660 Eeal Property. [§ 446
boundary on a *' beach "^*^ or on " flats. "^^
The fact that the description, while stating that
the land is bounded "by" a stream, or that it extends
''to" a stream, or that a boundary runs "along" the
stream, names an object on the shore or bank as a
monument, does not ordinarily show an intention to
exclude the stream, but this is regarded as merely a
statement of the point at which the boundary strikes
the stream, it being usually impracticable to place monu-
ments actually in the stream.^^
§ 446. Boundaries on ways. As before stated, the
ownership of land which is subject to use as a highway
is, at common law, in individuals, the public haAdng
merely the use thereof, but in this country, the owner-
ship of the land, the "fee" as it is called, is quite fre-
quently in the state or municipality in trust for the
public. In the latter case, a conveyance of land as
bounded "by" or "along" the highway can, of course,
vest in the grantee no part of the land occupied by
the highway, and he takes merely to the outer edge
thereof. When, however, the grantor owns part or
the whole of the land subject to the highway use, the
question frequently arises whether his conveyance
passes land within the highway, and, in deciding this
question, the same considerations apply as in the
analogous case of a conveyance of land bounded by
water, the soil under which belongs to the grantor.
A conveyance of land as bounded "on" or "by,"
or as running "along" a highway, will convey to the
90. Litchfield v. Ferguson, 141 Livingston, 23 WaU. (U. S.) 46,
Mass. 97, 6 N. E. 721; Hathaway 64; Berry v. Snyder, 3 Bush
V. Wilson, 123 Mass. 359; Nixon (Ky.) 26, 96 Am. Dec. 219; Pike
V. Walter, 41 N. J. Eq. 103, 3 v. Munroe, 36 Me. 309, 58 Am.
Atl. 385; Trustees of East Hamp- Dec. 751; Cold Spring Iron
ton V. Kirk, 68 N. Y. 459. Works v. Inhabitants of Tol-
91. Saltonstall v. Long Wharf, land, 9 Cush. (Mass.) 492;
7 Cush. (Mass.) 195. Rex v. Johnson, 5 N. H. 520,
92. County of St. Clair v. 22 Am. Dec. 472; Kent v. Taylor,
§ 446]
Transfer Inter Vivos.
1661
center line of the highway, if the grantor owns thereto,
unless a contrary intention appears from the con-
veyance,^^ and this, even though the length of the
side boundary lines, as given, would carry them only
so far as the edge of the highway.*^^ So, when land
abutting on a highway is conveyed by terms of descrip-
tion which make no mention of the highway, as w^hen
it is conveyed by a number on a plat, the grantor's in-
terest in the land within the highway limits, it has been
held, presumably passes.^^ But if, without any men-
64 N. H. 489, 13 Atl. 419; Luce
V. Carley, 24 Wend. (N. Y.)
451, 35 Am. Dec. 637; Grant v.
White, 63 Pa. St. 271; Noble v.
Cunningham McMull Eq. 289.
93. Columbus & W. Ry. Co. v.
Witherow, 82 Ala. 190, 3 So.
23; Kittle v. Pfeiffer, 22 Cal.
484; Smith v. Horn, 70 Fla. 484,
70 So. 435; Silvey v. McCooI, 86
Ga. 1, 12 S. E. 175; La Salle
Varnish Co. v. Glos, 254 111.
326, 98 N. E. 538; City of
Dubuque v. Maloney, 9 Iowa,
451, 74 Am. Dec. 358; Blalock v.
Atwood, 154 Ky. 394, 46 L.
R. A. 3, 157 S. W. 694;
White V. Godfrey, 97 Mass. 472;
Hamlin v. Pairpont Mfg. Co.,
141 Mass. 51, 6 N. E. 531;
White V. Jefferson, 110 Minn. 276,
32 L. R. A. (N. S.) 778, 784,
124 N. W. 373, 125 N. W. 262;
Thomas v. Hunt, 134 Mo. 392,
32 L. R. A. 857, 35 S. W. 581;
In re Ladue, 118 N. Y. 213, 23
N. E. 465; Paul v. Carver. 26
Pa. 223; Cronin v. Janesville Trac-
tion Co. 163 Wis. 436, 158 N.
W. 254.
And so a conveyance of land,
"south of the road" has been
held to convey a part of the
highway. Helmer v. Castle, 109
R. P.— 30
111. 664.
94. Moody v. Palmer, 50 Cal.
31; Oxton v. Groves, 68 Me.
371, 28 Am. Rep. 75; Newhall v.
Ireson, 8 Cush. (Mass.) 595,
54 Am. Dec. 790; McKenzie v.
Gleason, 184 Mass. 452, 100 Am.
St. Rep. 566, 69 N. E. 1076; Paul
v. Carver, 26 Pa. St. 223; Wegge
V. Madler, 129 Wis. 412, 109 N.
W. 223. But Chicago v. Rumsey,
87 111. 348 appears to be contra. '
95. Berridge v. Ward, 10 C.
B. N. S. 400; Dickinson v. Ar-
kansas City Imp. Co., 77 Ark.
570, 113 Am. St. Rep. 170, 92
S. W. 21; Champlin v. Pendleton,
13 Conn. 23; Gear v. Barniim, 37
Conn. 229; Florida Southern
Railway Co. v. Brown, 23 Fla.
104, 1 So. 512; Owen v. Brook-
port, 208 111. 35, 69 N. E. 952;
Cox V. Louisville, N. A. & C. R.
Co., 48 Ind. 178; City of Dubuque
V. Maloney, 9 Iowa, 450, 74 Am.
Dec. 358; Grant v. Moon 128 Mo.
43, 30 S. W. 328; White's Bank
of Buffalo V. Nichols. 64 N. Y.
65, Dobson v. Hohenadel, 148 Pa.
367, 23 Atl. 1128; Faulkner v.
Rocket, 33 R. I. 152, 80 At. 380;
Durbin v. Roanoke Bldg. Co., 107
Va. 753, 60 S. E. 86; Kneeland v.
Van Valkenburgh, 46 Wis. 434,
1662
Keal Property.
[§ 446
tioii of the hig'liway, the limits as given clearly ex-
clude it, as when they bound the property conveyed by
a fence or wall which, as a matter of fact, coincides
with the marginal line of the highway, no land within
the highway will, it seems, pass.^^
A description of the land as bounded by or on
the ''side," "margin," or "edge "of the highway has
more usually been regarded as showing an intention to
exclude the land mthin the highw^ay limits from the
operation of the conveyance,^" and a reference to the
"line" of the road, either without any prefix,^^ or
with a prefix, such as South or West, showdng that
the side of the road is meant,^^ has been given a like
effect. In some states, however, a dii¥erent view, that
the reference to the side or margin of the road does
not exclude the highw^ay, has been adopted.^
32 Am. Rep. 719, 1 N. W. 63;
Contra, Sutherland v. Jackson, 32
Me. 80; Hanson v. Campbell's
Lessee, 20 Md. 223. Compare Ho-
boken Land & Improvement Co,
V. Kerrigan. 31 N. J. Law 13.
96. Warren v. Blake, 54 Me.
276, 89 Am. Dec. 748; Tyler v.
Hammond, 11 Pick. (Mass.) 193.
97. Alameda Macadamizing Co.
V. Williams, 70 Cal. 534, 12 Pac.
530; Baltimore & O. R. Co. v.
Gould, 67 Md. 60, 8 Atl. 754;
Tyler v. Hammond, 11 Pick.
(Mass.) 193; Holmes v. Turner's
Falls Co., 142 Mass. 590, 8 N.
B. 646; Grand Rapids & L R.
Co. V. Heisel, 38 Mich. 62;
Betcher v. Chicago, M. & St. P.
Ry. Co., 110 Minn. 228, 124 N.
W. 1096; Jackson v. Hathaway,
15 Johns. (N. Y.) 447; Blackman
V. Riley, 138 N. Y. 318, 34 N. E.
214; Trowbridge v. Ehrich, 191
N. Y. 361, 84 N. E. 297; Hughes
V. Providence & W. R. Co., 2 R.
I. 508; Iron Mountain R. Co. v.
Bingham, 87 Tenn. 522, 4 L. R.
A. 622, 11 S. W. 705; Buck v.
Squiers, 22 Vt. 484.
98. Hamlin v. Pairpont Mfg.
Co. 141 Mass. 51, 6 N. E. 531;
Harriman v. Whitney, 196 Mass.
466, 82 N. E. 671; Lough v.
Machlin, 40 Ohio St. 322; Cole v.
Haynes. 22 Vt. 588; Clayton v.
Gilmer County Court, 58 W. Va.
253, 2 L. R. A. N. S. 598, 52 S.
E. 103; Contra. Helmer v. Castle,
109 HI. 664; Kneeland v. Van
Valkenburgh, 46 Wis. 434, 32
Am. Rep. 719, 1 N. W. 63.
99. Severy v. Cent. Pac. R. Co.,
51 Cal. 594; Warren v. Blake, 54
Me. 276, 89 Am. Dec. 748; Grand
Rapids & Ind. R. R. Co. v.
Heisel, 38 Mich. 62; Morrow v.
Willard, 30 Vt. 118.
1. Johnson v. Anderson, 18
Me. 76 (sevible) ; Woodman v.
Spencer, 54 N. H. 507; Salter v.
Jonas, 39 N. J. Law 469, 23 Am.
§ 446]
Transpee Inter Vivos.
1663
By analogy to the rule applied in the case of
boundaries on streams, it would seem that a monument
at the side or edge of the highway, when referred to as
a starting point for a line running along the highway,
should not ordinarily exclude the soil within the high-
way limits, but that it might well be regarded as merely
showing the point at which the boundary strikes the
highway, since it is not usually practicable to place a
monument in the center of the highway. This view
has occasionally been indicated,- but usually the nam-
ing of a monument at the side or edge of the highway,
from which the line is to run along the highway, has
been regarded as sufficient to exclude the land within
the highway limits," Where the latter view prevails,
the same result would follow when, as the starting
point of such line, there is named, not a monument
on the side of the highway, but an imaginary point,
such as the intersection of the side line with another
line.^
Rep. 229; Humphreys v. East-
lack, 63 N. J. Eq. 136, 51 Atl.
775; Paul v. Carver, 26 Pa. 223;
Cox V. Freedley, 33 Pa. St.
124, 75 Am. Dec. 584: Anthony v.
City of Providence, 18 R I. 699,
28 Atl. 766. Compare Hobson v.
Philadelphia, 150 Pa. St. 595, 24
Atl. 1048.
And the fact that the length
of the side lines of the property
as given would carry them to
the centre of the highway has
been regarded as immaterial.
Baker v. Mobile Electric Co., 173
Ala. 28, 55 So. 304.
2. Moody V. Palmer, 50 Cal.
31; Cattle v. Young, 59 Me. 105;
Low V. Tibbetts, 72 Me. 92.
3. Peabody Heights Co. of Balti-
more V. Sadtler, 63Md. 533; Hunt
V. Brown, 75 Md. 481. 23 Atl. 1029;
Sibley v. Holden, 10 Pick. (Mass.)
249; Smith v. Slocomb, 9 Gray
(Mass.) 36; Kings County Fire
Ins. Co. V. Stevens, 87 N. Y. 287.
And see Peck v. Denniston, 121
Mass. 17; Chadwick v. Davis, 143
Mass. 7, 8 N. E. 601; Hoboken
Land & Improvement Co. v.
Kerrigan, 31 N. J. Law 13; Van
Winkle v. Van Winkle, 184 N.
Y. 193, 77 N. E. 33, appears to
be contra.
4. Smith V. Slocomb, 9 Gray
(Mass.) 36; Rieman v. Baltimore
Belt Ry. Co., 81 Md. 68, 31 At.
444; White's Bank of Buffalo v.
Nichols, 64 N. Y. 05; Blackman
v. Riley, 138 N. Y. 318. 34 N.
E. 214. See Hoboken Land Co.
V. Kerrigan, 31 N. .1. L. 13.
The words "beginning on the
southerly side of" the road, or "at
a point" on such side, and like
expressions, have been, In at
1664
Real. Pbopeety.
[§ 446
In applying the foregoing rules, the highway or
street referred to is the highway as opened or defined
by use, rather than the highway as platted or recorded.^
A change in the location or limits of the highway after
the making of the conveyance would seem not to
affect the boundaries of the abutting land/'
In some jurisdictions a conveyance is not regarded
as including any part of land which is merely intended to
be dedicated as a highway in the future, or which is
merely marked on a plat as such, although the land con-
veyed is described as bounded on such intended highway
as if it actually existed/ In other jurisdictions it is con-
sidered that such a reference to land as a highway
raises the same presumption of an intention to convey
the land to the center of the proposed highway as if
the highway actually existed.^
least two states, construed as
merely indicating the side of the
road on which the land lies and
not as locating a corner of the
land at the edge of the road.
O'Connell v. Bryant, 121 Mass.
557; Hamlin v. Attorney General,
195 Mass. 309, 81 N. E'. 275;
Salter v. Jonas, 39 N. J. L.
469, 23 Am. Rep. 229. And see
Kneeland v. Van Valkenburgh,
46 Wis. 434, 32 Am. Rep. 719,
1 N. W. 63. But a contrary view
has also been taken. Walker v.
Pearson, 40 Me. 152; In re Park-
way 209 N. Y. 344, 103 N. E.
508; Kings County Fire Ins. Co.
V. Stevens, 87 N. Y. 287; Lankin
V. Terwilliger, 22 Ore. 97, 29
Pac. 268. And see Paul v. Car-
ver, 26 Pa. 223.
5. Southern Iron Works v.
Central of Georgia Rwy. Co., 131
Ala. 649, 31 So. 723; Orena v.
City of Santa Barbara, 91 Cal.
621, 28 Pac. 268, Falls Village
Water Power Co. v. Tibbetts, 31
Conn. 165; Winter v. Payne, 33
Fla. 470, 15 So. 211: Cleveland v.
Obenchain, 107 Ind. 591, 8 N. E.
624; Brown v. Heard, 85 Me. 294,
27 Atl. 182; Wilmarth v. Wood-
cock, 66 Mich. 331, 33 N. W. 400;
O'Brien v. King, 49 N. J. Law 79,
7 Atl. 34; Blackman v. Riley,
138 N. Y. 318, 34 N. E. 214.
6. Brantley v. Huff, 62 Ga.
532; White's Bank of Buffalo v.
Nichols, 64 N. Y. 65. Contra,
Williams v. Johnson, 149 Ky. 409,
149 S. W. 821.
7. Leigh v. Jack, 5 Exch. Div.
264; Bangor House Proprietary
v. Brown, 33 Me. 309; Palmer v.
Dougherty, 33 Me. 502, 54 Am.
Dec. 636; Robinson v. Myers, 67
Pa. St. 9; Spackman v. Steidel,
88 Pa. St. 453; Clymer v. Roberts,
220 Pa. 162, 69 Atl. 548.
8. Bissell V. New York Cent.
R. Co.. 23 N. Y. 61; In re Ladue,
118 N. Y. 213, 23 N. E. 465;
§ 446]
Transfer Inter Vivos.
1665
The fact that the land as described borders on a
strip which had previously been a highway, but which
is no longer such, the highway having been vacated be-
fore the delivery of the conveyance, has been held not
to make the conveyance effective to pass any part of
that strip.''
If the owner owns the w^hole of the bed of the
highway, and no land on the other side thereof, his
conveyance of land on the highw^ay wall, it has been
held, prima facie pass all the land within the highway
limits, ^° and this has occasionally been held to be so
although the ownership of the further half of the
highway involved riparian rights. ^^
When the land conveyed is described as extending
a certain distance from the highway, without other
means of determining its location, the line is ordinarily
to be measured, it has been decided, from the center
line of the highway.^^
Whether, wiien the land is described as bounded on
a private way, the same rule applies as in the case of a
Anthony v. City of Providence,
18 R. I. 699, 28 Atl. 766; John-
son V. Arnold, 91 Ga. 659, 18
S. E. 370; Thompson v. Maloney,
199 111. 276, 93 Am. St. Rep. 133,
65 N. E. 236. See Peck v.
Denniston, 121 Mass. 17.
9. White V. Jefferson, 110
Minn. 276, 32 L. R. A. N. S. 778,
124 N. W. 373, 125 N. W. 262;
In re Schmeidel's Estate, 119
Minn. 186, 137 N. W. 1110;
Brown v. Taber, 103 Iowa, 1, 72
N. W. 416. Compare Paine v,
(Consumers F. & S. Co., 71 Fed.
626. 19 C. C. A. 99.
10. Taylor v. Armstrong, 24
Ark. 102; Johnson v. Arnold, 91
Ga. 659, 18 S. E. 370; In re
Robbins, 34 Minn. 99, 57 Am.
Rep. 40, 24 N. W. 356; Thompson
V. Major, 58 N. H. 242; Haber-
man v. Baker, 128 N. Y. 253, 13
L. R. A. 611, 28 N. E. 370;
Healey v. Babbitt, 14 R. I. 533.
11. Wait V. May, 48 Minn.
453, 51 N. W. 471; Johnson v.
Grenell, 188 N. Y. 407, 81 N. E.
161; Gifford v. Horton, 54 Wash.
595, 103 Pac. 988. And see Irvin
V. Crammond, 58 Ind. App. 540,
108 N. E. 539. But Banks v. Og-
den, 2 Wall. (U. S.) 57, 17 L.
Ed. 818; Demopolis v. Webb, 87
Ala. 659, 6 So. 408; Illinois etc.
Canal v. Haven, 11 111. 554;
Brisbine v. Railway Co., 23 Minn.
114; Ocean City Hotel Co. v.
Sory, 77 N. J. L. 527, 73 At.
236, are apparently contra.
12. Dodd V. Witt, 139 Mass.
63, 52 Am. Rep. 70U, 29 N. E.
475.
1GG6 Real. Property. [§ 447
public way, so as to give to the grantee the land to
the center line thereof, in the absence of the expression
of a contrary intention, is a question on which the cases
are not in accord. ^^ In one state in which the same
rule of presumption is held to apply in the case of a
private way, it has been said that an intention not to
grant to the center of such a way is more readily in-
dicated than in the case of a public way.^^
§ 447. Sufficiency of description. It is impossible
to give any general rules by which to determine wheth-
er, in the case of any particular conveyance, the de-
scription is sufficiently definite to render the instru-
ment operative. The court will, if possible, with the
aid of evidence introduced for the purpose, find a
particular piece of land which the description serves
to differentiate from other land. A case of insufficiency
of description would ordinarily arise whenever the
conveyance is in terms merely of a tract, or of a tract
of a certain size lying in a certain region or neighbor-
hood, without anything to indicate its exact location.^^
And a case of insufficiency of description quite fre-
quently arises by reason of a conveyance in terms of a
13. In Massachusetts and Penn- In Connecticut and Maine the
sylvania the same rule has been same rule does not apply to
held to apply in the case of private ways. Seery v. Waterbury,
a private way. Fisher v. Smith, 82 Conn. 567, 74 At. 908; House
9 Gray (Mass.) 441; Gould v. Proprietary v. Brown, 33 Me.
Eastern R. R., 142 Mass. 85, 7 309; Ames v. Hilton, 70 Me. 36.
N. E. 543; Saccone v. West End As to the rule in New York,
Trust Co., 224 Pa. 554, 73 At. see Mott v. Mott, 68 N. Y. 246.
971. See also Witter v. Harvey, 14. Gray v. Kelley, 194 Mass.
1 McCord, (S. C.) 67, 10 Am. 533, 80 N. E. 651.
Dec. 650. But a contrary inten- 15. Lewis v. Owen, 64 Ind.
tion may of course appear from 446; Brock v. Mcllhenny's Son,
the terms of the conveyance. 136 La. 903, 67 So. 951; Bell v.
Codman v. Evans, 1 Allen Dawson, 32 Mo. 79; Dickens v.
(Mass.) 443; Crocker v. Getting, Barnes, 79 N. Car. 490; George
166 Mass. 183, 33 L. R. A. 245, v. Bates, 90 Va. 839, 20 S. E.
44 N. E. 214. And see Gushing 828; Coker v. Roberts, 71 Tex.
T. Hathaway, 10 R. I. 514. 597, 9 S. W. 665.
§ 447] Transfer Inter Vivos. 1667
part of a tract, without any indication of its position
in such tract. ^''' And even though its general position
in the larger tract may be indicated, the description
my be insufficient by reason of a failure to state its
extent. ^^ But not infrequently, if both the position of
the smaller tract and its extent is stated, the descrip-
tion may be regarded as intended to cover a rectangular
piece of land in the location named, as for instance
upon a conveyance of the South ten acres, or the
Southwest fifteen acres of a quarter quarter section. ^^
So a description of a certain number of acres to be
taken off of one side of a tract of a triangular shape
has been regarded as sufficient. ^'^ Occasionally a con-
veyance in terms of a certain number of acres out of
a larger tract, without any indication that they are to
be laid off in any jDarticular part of the tract has been
upheld as a conveyance of an undivided interest in
the whole tract, in the proportion which the number of
acres named bears to the number comprised in the
whole tract.2^
16. Graysonia Nashville Lum- S. E. 50; Evans v. Gerry, 174 111.
ber Co. v. Wright, 117 Ark. 151, 595, 51 N. E. 615; Early & Co.
175 S. W. 405; Cooper v. New- v. Long, 89 Miss. 285, 42 So.
ton, 68 Ark. 150, 56 S. W. 867; 348; Smith v. Nelson, 110 Mo.
James v. Hamil, 140 Ga. 168, 78 552, 19 S. W. 734; Walsh v.
S. E. 721; Hanna v. Palmer, 194 Ringer. 2 Ohio 327, 15 Am. Dec.
111. 41, 56 L. R. A. 93, 61 N. E. 327; Jackson v. Vickory, 1 Wend.
1051; Craven v. Butterfield, 80 (N. Y.) 406, 19 Am. Dec. 552;
Ind. 503; Brown v. Guice, 46 Lewellyn v. Gardner 13 Rich, (S.
Miss. 299; Smith v. Proctor, 139 C.) 242; Mendota Club v. Ander-
N. Car. 314, 2 L. R. A. N. S. son, 101 Wis. 479, 78 N. W. 185.
172, 51 S. E. 889; Herman v. So in the case of an exception
Likens, 90 Tex., 448, 39 S. W. of a named quantity. Watson v.
282. Crutcher, 56 Ark. 44, 19 S. W.
17. Carter v. Barnes, 26 111. 98; Sweat v. Mnllis 145 Ga. 450,
454; Morse v. Stockman, 73 Wis. 89 S. E. 422.
89, 40 N. W. 679. 19. Ne-Ha-Sa-Ne Park Ass'n v.
18. Carling v. Wilson, 177 Ala. Lloyd 25 N. Y. Misc. 207, 55
85, 58 So. 417; Daniel v. Wil- N. Y. Supp. 108; Wells v. Hed-
liams, 177 Ala. 140, 58 So. 419; denberg, 11 Tex. Civ. App. 3.
Payton v. McPhaul, 128 Ga. 510, 30 S. W. 702.
11 A. & E. Ann. Cas. 163, 58 20. Cullen v. Sprlgg, 83 Cal.
1668 Real Property. [§ 447
The insufficiency of the description may arise from
a failure to name any point with reference to which
the courses and distances of the boundaries are to he
referred for the purpose of location on the land.^^
And an attempted description by reference to the
government survey may be insufficient by reason of a
failure to name some essential element such as ran^v.
or township.^ ^
It has been decided that a description of the
property as a house and lot on a particular street is
sufficient, it being shown that the grantor o\vned but
one house and lot on that street.^^ And the same view
was taken in the case of the conveyance of a lot of a
named measurement on a certain street, the grantor
owning a lot of that measurement on the street and no
other.-* And in a number of other cases the court has
referred to the fact of ownership by the grantor of
particular land as tending to show that the conveyance,
otherwise lacking in definiteness of description, was
intended to apply to that land.^^ But thus to con-
sider the question of the grantor's ownership of prop-
erty in order to identify a description which makes no
56, 23 Pac. 222; Gibbs v. Swift, of sale); Mead v. Parker, 115
12 Cush. (Mass.) 393; Pipkin v. Mass. 413, 20 Am. Rep. 110.
Ullen, 29 Mo. 229; Moorehead v. 24. Burton v. Mullenary, 147
Hall, 126 N. Car. 213, 35 S. E. Cal. 259, 81 Pac. 844. . And see
428; Grlder v. Wood, 178 Fed. Walker v. David, 68 Ark. 544,
908, 102 C. C. A. 109. 60 S. W. 418.
21. Le France v. Richmond, 25. Jenkins v. Woodward Iron
Fed. Cas. No. 8209, 5 Sawy. Co., —(Ala.)— 69 So. 646; Piper
601; Pry v. Pry, 109 111. 466; v. True, 36 Cal. 606; Derham v.
Kennedy v. Maness, 138 N. Car. Hill, 57 Colo. 345, 142 Pac. 181;
35, 50 S. E. 450; Barker v. Hornet v. Dumbeck, 39 Ind. App.
Southern Rwy. Co., 125 N. Car. 482, 78 N. E. 691; Harris v.
596, 74 Am. St. Rep. 658, 34 S. Byers, 112 Miss. 651, 73 So. 614;
E. 701. Loomis v. Jackson, 19 Johns. (N.
22. Puller v. Fellows, 30 Ark. y.) 449; Lush v. Druse, 4 Wend.
657; Hartigan v. Hoffman, 16 (N. Y.) 313; State v. Herold, 76
Wash. 34, 47 Pac. 217. W. Va. 537, 85 S. E. 733; Davis
23. Hurley v. Brown, 98 Mass. Colliery Co. v. Westfall, 78 W.
545, 96 Am. Dec. 671 (contract Va. 735, 90 S. E. 328.
§ 447] Transfee Inter Vivos. 1660
reference to ownership apparently involves the inser-
tion by implication in the conveyance of a word or
words, such as "my" or "belonging to me" and this
would seem to transcend the limits of construction.^^
A conveyance of my tract of land in X county would
presumably be sufficiently definite, provided the grantor
has only one tract in that county, but a conveyance,
under the same circumstances, of a tract of land in X
county, might well be differently regarded. In ac-
cordance with the cases previously referred to, how-
ever, are a number of decisions that, in the apparently
analogous case of a will, evidence of testator's owner-
ship of particular land is admissible to aid the de-
cription.'^^
JTovided the property is otherwise sufficiently de-
scribed, the fact that there is an incorrect element in the
description, or incorrect addition thereto, will not invali-
date the description, but such incorrect element will be
ignored.-^ This rule is ordinarily asserted in the form
of the maxim falsa demonstrato non nocet. So if the
land is otherwise identified, a mistake in the name of
the town or county in which it lies may be immaterial.-''
26. See 4 Wigmore, Evidence 164; Winkley v. Kaime, 32 N. H.
§§ 2476, 2477. 268; Moreland v Brady, 8 Ore.
27. Patch V. White, 117 U. S. 303, 34 Am. Rep. 581; In re
210, 29 L. Ed. 860; Higgin v. Gaston's Estate, 188 Pa. 374, 68
Tennessee Coal, Iron & R. Co., Am. St. Rep. 874, 41 Atl. 526. As
183 Ala. 639, 62 So. 774; Collins to the Illinois decisions see 5
V. Capes, 235 111. 560, 85 N. E. Wigmore, Evidence § 2477.
934; Graves v. Rose, 246 111. 76, 28. See 4 Wigmore, Evidence
92 N E. 601; Pate v. Bushong, § 2476.
161 Ind. 533, 63 L. R. A. 593, 29. Perry v. Clark, 157 Mass.
100 Am. St. Rep. 287, 69 N. E. 330, 32 N. E. 226; Lambert v.
296; Flynn v. Holman, 119 Iowa, Murray, 52 Colo. 156, 120 Pac.
731, 94 N. W. 447; Pring v. 415; Borchard v. Eastwood, 133
Swann, 176 Iowa, 153, 157 N. W. Cal. XIX, 65 Pac. 1047; Black v.
734; McMahan v. Hubbard, 217 Skinner Mfg. Co., 53 Fla. 1088,
Mo. 624, 118 S. W. 481; Pern- 1090, 43 So. 919, 922; Rlsch v.
berton v. Perrin, 94 Neb. 718, Jensen, 92 Minn. 107, 99 N. W.
Ann. Cas. 1916B, 68, 144 N. W. 628.
1670
Real Property.
H ^7
And a monument,^ *^ course,^^ distance,^^ or statement
of quantity,^^ may, in particular cases, be disregarded,
as may a statement as to the source of title to the
property,^* or as to the present occupancy thereof.^'
It has been quite frequently said that as between
a general description and a particular description in
the same conveyance, the latter will ordinarily control.^^
It would seem questionable, however, whether this state-
ment properly means anything more than that a descrip-
tion which does not undertake to give the exact location
of the land conveyed will yield to a descrijjtion which
does give its exact location,-^ ^ It can hardly mean that a
detailed description by metes and bounds or courses
and distances, or by naming constituent parts of the
property, will take priority over a description which
does not enter into such details. A description of the
property as the '*X" place or the "Y" farm is not
in its nature any more general than a description by
30. Ayers v. Watson, 113 U.
S. 594, 28 L. Ed. 1093; Sanborn
V. Rice, 129 Mass. 387; Zeibold v.
Foster, 118 Mo. 349, 24 S. W.
155; Upton v. Santa Rita Min.
Co. 14 N. Mex. 96, 89 Pac. 275;
Stearns v. McHugh, 35 S. Dak.
185, 151 N. W. 888.
31. Ante, § 444, note 66.
32. Ante, § 444 notes 65, 68.
33. Ante, § 444, note 69.
34. Jay v. Michael, 82 Md.
1, 33 Atl. 322; Hastings v.
Hastings, 110 Mass. 280; Drew v.
Drew, 28 N. H. 489.
35. Stewart v. Davis. 63 Me.
539; Stone v. Stone, 116 Mass.
279; Hibbard v. Hurlburt, 10
Vt. 173.
36. Guilmartin v. Wood. 76
Ala. 204; Gano v. Aldrldge, 27
Ind. 489; Kendrick v. Burchett,
28 Ky. L. Rep. 342, 89 S. W.
239; Pendergrass v. Butcher, 158
Ky. 321, 164 S. W. 949; Perry v.
Buswell, 113 Me. 399, 99 Atl.
483; Savage v. Kendall, 10 Gush.
(Mass.) 241; McGowen v. Lewis,
26 N. J. L. 451; Peaslee v. Gee,
19 N. H. 273; Boggess v. Allen,—
(Tex. Civ. App.)— 56 S. W. 195;
Ridgell V. Atherton — (Tex. Civ.
App.)— 107 S. W 129; Spiller t.
Ccribner, 36 Vt. 245, 2 Devlin
Deeds, § 1039.
37. See Barney v. Miller, 18
Iowa, 460; Black v. Skinner Mfg.
Co., 53 Fla. 1090, 43 So. 919:
Heman v. Gilliam, 171 Mo. 258,
71 S. W. 163; Jones v. Smith, 73
N. Y. 205; Cullers v. Piatt, 81
Tex. 258, 16 S. W. 1003; Hunter
V. Hume, 88 Va. 24, 13 S. E.
305; South Penn Oil Co. v. Knox,
68 W. Va. 362, 69 S. E. 1020;
Pardee v .Johnston, 70 W. Va.
347, 74 S. E. 721.
§ 447] Transfer Inter Vivos. 1671
metes and bounds, and there does not seem any plau-
sible reason for regarding the former as less likely than
the latter to represent the grantor's intention. Indeed
it appears to be the general rule that if the conveyance
describes the property with sufficient definiteness by
language which does not enter into details, this de-
scription will not be cut down by a subsequent clause
which does attempt to give in detail the boundaries'^^
or numbers of the constituent lots,^^ or other elements
of description.^^ So it has been decided that a de-
scription of a town lot by its number and the number
of its block, includes the whole lot, though it is fol-
lowed by a description by metes and bounds which
covers only a part of the lot,*^ and a description of the
land as the grantor's home farm was regarded as un-
affected by an attempt to give the constituent parts of
the farm, which omitted several acres.*^
As a description, definite in itself,'*^ is not cut
down by subsequent words attempting to • give a more
detailed description, so it is not cut down by sub-
sequent words of reference or explanation, such for
instance, as indicate the source of title,** or previous
38. Haley v. Amestoy, 44 Cal. 40. Stukeley v. Butler Hob.
132; Rutherford v. Tracy, 48 Mo. 172.
325, 8 Am. Rep. 105; Lodge v. 41. Rutherford v. Tracy, 48
Lee, 6 Cranch (U. S.) 237, 3 L. Mo. 325, 8 Am. Rep. 104; Master-
Ed. 210; Keith v. Reynolds, 3 son v. Munroe, 105 Cal. 431, 45
Greenl. (Me.) 393; Jackson v. Am. St. Rep. 57, 38 Pac. 1106:
Barrlnger, 15 Johns. (N. Y.) Moore v. Minnesota & St. R S.
471; Quelch v. Futch, 172 N. R. Co., 129 Minn. 237, 152 N.
C. 316, 90 S. E. 259; Birch v. W. 405.
Hutchings, 144 Mass. 561, 12 N. 42. Andrews v. Pearson, 68
E. 192; Barney v. Miller, 18 Me. 19.
Iowa, 460; Gish v. Roanoke, 119 43. See Weller v. Barber, 110
Va. 519, 89 S. E. 970. Mass 44; Hathorn v. Hinds, 69
39. Sumner v. Hill, 157 Ala. Me. 326.
230, 47 So. "565; Andrews v. 44. Maker v. Lazell, 83 Me.
Pearson, 68 Me. 19; Marshall v. 562, 23 Am. St. Rep. 795, 22 Atl.
McLean, 3 G. Greene — (Iowa),— 474; Wilder v. Davenport, 58 Vt.
363; Whitaker v. Whitaker, 175 642. See Lovejoy v. Lovett, 124
Mo. 1, 74 S. W. 109. Mas.s. 270.
1672 Keal, Propeety. [^ 447
occupancy,*^ or the name by which the property is
ordinarily knoAvn.**'
A description of the property conveyed as all
that part of a particular tract which the grantor has
not previously sold or conveyed is sufficient, it being
possible to apply the description by the introduction
of evidence of what had been previously sold or con-
veyed.*'^
Even a conveyance of a certain number of acres, to
be selected by the grantee,** or by the grantor,*^ out
of a larger tract belonging to the grantor, would seem
to be sufficient, in case the selection is duly made. The
only possible objection to such a conveyance appears
to be that the election constitutes a condition precedent
to the vesting of an estate, and that this would in-
volve a violation of the Rule against Perpetuities un-
less there were some restriction as regards the time
of election.^'^ Such a restriction, however, might be
supplied by the implication of a requirement that the
election be made by the grantor or grantee personally,
in which case it must be made within a life in being.
It is said that, when there are two conflicting de-
scriptions in the conveyance, the grantee maj^ elect as
between them,^^ and that when the description is am-
45. Hobbs V. Payson, 85 Me. 602. So in the case of a de-
498, 27 Atl. 519, Kimball v. vise, 1 Jarman, Wills 331.
Schoff, 40 N. H. 190 (semile). 49. See Indianapolis Natural
46. Barksdale v. Barksdale, 92 Gas. Co. v. Spaugh, 17 Ind.
Miss. 166, 45 So. 615. App. 68.3, 46 N .E. 691; Indian-
47 Maier v. Joslin, 46 Minn. apolis Natural Gas Co. v. Pierce,
228, 48 N. W. 909; Baker v. Clay, 25 Ind. App. 116, 56 N E.. 137;
101 Mo. 553, 14 S. W. 734; Dun- Hunt v. Campbell, 83 Ind. 48.
can V. Madora, 106 Pa. St. 562; 50. See Savill Bros Ltd. v.
Falls Land & Cattle Co. v. Bethell [1902] 2 Ch. 523,
Chisholm, 71 Tex. 523, 9 S. W. 51. Vance v. Fore, 24 Cal.
479; Frost v. Erath Cattle Co., 435; Merwin v. Backer, 80 Conn.
81 Tex. 505, 26 Am. St. Rep. 831, 338, 68 Atl. 373; Sharp v. Thomp-
17 S. E. 52. son, 100 111. 447, 39 Am. Rep. 61;
48. Hungerford's Case 1 Leon Hornet v. Dumbeck, 39 Ind. App.
30; Marshall v. Marshall Moore, 482, 78 N. E. 691; Melvin v.
§ 448 J Transfer Inter Vivos. 1673
biguous, it will, iu the absence of evidence to remove
the ambiguity, be construed in favor of the grantee."
§ 448. Appurtenances. The effect of a conveyance
of land in certain cases as creating an easement cor-
responding to a pre-existing quasi easement has been
previously considered.^^ As to the effect of a con-
veyance of land, not as creating an easement, but as
conveying an easement already existing, it is well set-
tled that such an easement will pass on a conveyance
of the land to which it appertains, — that is, the domi-
nant tenement, — even though there is no reference to the
specific easement, or any statement that all the "ap-
purtenances" or "privileges" belonging to the land
shall pass therewith.^^
The word ''appurtenance" is properly confined
to things of an incorporeal character, such as ease-
ments or profits a prendre, and a conveyance of land
"with the appurtenances" will not pass land other than
that described, on the theory that it is appurtenant
thereto, or, as the- rule is usually expressed, "land
cannot be appurtenant to land."^'^ The word "ap-
Merrimack River Locks, 5 Mete. 36 Ala. 627, 76 Am. Dec. 338;
(Mass.) 27; Esty v. Baker, 50 Jackson v. TruUinger, 9 Or. 393;
Me. 325, 79 Am. Dec. 616. National Exchange Bank v. Cun-
52. Black v. Skinner Mfg. Co., nlngham, 46 Ohio St. 575; Win-
53 Fla. 1090, 43 So. 919; Quade slow v. King, 14 Gray (Mass.)
V. Pillard, 135 Iowa, 359, 112 N. 323; Bowling v. Burton, 101 N.
W. 646; Pike v. Munroe, 36 Me. C. 176, 2 L. R. A. 285, 7 S. E.
309, 58 Am. Dec. 751; Hastings v. 701; Cope v. Grant, 7 Pa. St. 488.
Hastings, 110 Mass. 280; Cole v. Occasionally, however, the
Mueller, 187 Mo. 638, 86 S. W. courts speak as if it were by
193; Sanborn v. Clough, 40 N. reason of the use of the word
H. 316; Waterman v. Andrews, "appurtenances" that an appur-
14 R. I. 589; Green Bay & M. tenant easement passes. Whittle-
Canal Co. v. Hewitt, 55 Wis. 96, sey v. Porter, 82 Conn. 95, 72
42 Am. Rep. 701, 12 N. W. 382. Atl. 593; Swartz v. Swartz, 4 Pa.
53. Ante, § 363(b). 353.
54. Sheppard's Touchstone, 89; 55. Co. Litt. 121b; Harris v.
Co. Litt. 121b; Crosby v. Brad- Elliott. 10 Pet. (U. S.) 25, 9 D.
bury, 20 Me. 61; Shelby v. Ed. 333; Humphreys v. Mc-
Chicago & E. I. R. Co., 143 HI. Kissock, 140 U. S. 304, 35 L. Ed.
385, 32 N. E. 438; Llde v. Hadley, 473; Evans v. Welch, 29 Colo.,
1674
Real Property.
[§ 448
purtenances" may, however, it appears, be shown not
to have, in the particular case, its legal meaning, but
to be used in a different sense, such as "usually en-
joyed with," and so to pass land other than that
specifically described.^^ And so, while the word "ap-
purtenances" will not usually extend the scope of
the conveyance so as to include things of a chattel
character, which are not legally part of the land con-
veyed," but they may, it has been held, be shown to
have been intended to be covered by the term.^^ Oc-
casionally materials placed on land for the purpose of
subsequent incorporation in a structure thereon, a
building or fence, for instance, have been regarded as
passing on a conveyance in terms of the land, on the
355, 68 Pac. 776; St. Louis Bridge
Co. V. Curtis, 103 111. 410;
Warren v. Blake, 54 Me. 276, 89
Am. Dec. 748; Whitmore v.
Brown, 100 Me. 410, 61 Atl. 985;
Leonard v. White, 7 Mass. 8, 5
Am. Dec. 19; Oliver v. Dickin-
son, 100 Mass. 114; Wilson v.
Beckwith, 117 Mo. 61, 22 S. W.
639; WoodhuU v. Rosenthal, 61
N. Y. 382; Geneva v. Henson, 195
N. Y. 447, 88 N. E. 1104; Latta
V. Catawba Electric Co., 146 N.
C. 285, 59 S. E. 1028; Cole v.
Haynes, 22 Vt. 588.
56. Hill V. Grange, 1 Plowd.
164; Whitney v. Olney, 3 Mason,
280, Fed. Cas. No. 17,595; Hearn
V. Allen, Cro. Car. 57; Thomas v.
Owen, 20 Q. B. Div. 225; Crozer
V. White, 9 Cal. App. 612, 100
Pac. 130; Hill's Lessee v. West.
4 Yeates (Pa.) 142; Ammidown
V. Granite Bank, 8 Allen (Mass.)
285. See Missouri Pac. R. Co.
V. Maffitt, 94 Mo. 56, 6 S. W. 600.
In some cases the use of the
word "appurtenances" in connec-
tion with the conveyance of a
building has been referred to as
extending the Import of the
conveyance, as where there was
a conveyance of a house or mill
"with appurtenances," In which
cases the inclosure and small
outbuildings were held to pass.
Ammidown v. Ball, 8 Allen
(Mass.) 293; State v. Burke, 66
Me. 127; Cunningham v. Webb.
69 Me. 92. Compare Frey v.
Drahos, 6 Neb., 39 Am. Rep.
353. But in these cases the effect
would, it seems, under the rule
previously stated (see § 441, note
48), have been the same if the
conveyance had contained no ref-
erence to the "appurtenances."
Likewise a water pipe leading to
the property conveyed has been
held to pass under that de-
scription. Mulrooney v. Obear,
171 Mo. 613, 71 S. W. 1019.
57. Ottumwa Woolen Mill Co.
V. Hawley, 44 Iowa, 57, 24 Am.
Rep. 719; Frey v. Drahos, 6
Neb. 1; Scheldt v. Belz, 4 111.
App. 431.
58. Redlon v. Barker, 4 Kan.
"§1 449] Transfer Inter Vivos. 1675
theory that they had, by reason of their destination,
become legally a part of the land or as being intended
to be included in the description of the land.^^
IV. Covenants for Title.
§ 449. General considerations. In most convey-
ances of land there are one or more covenants by the
grantor as to the title to the premises, under which the
grantee may, in case of failure of title, obtain in-
demnity in damages. These covenants are of certain
recognized classes, having, as a rule, fixed legal effects,
though these may be varied by the construction placed
upon the covenant in the particular case.*^'^
In the earlier stages of the common law no such
personal covenants were recognized, but the feoffment
was usually attended with a "warranty." This com-
mon-law warranty, which, taking its origin in the
obligation of the feudal lord to protect the holding of
his tenant, continued, even after the statute of Quia
Emptores, to be a usual incident of a feoffment, was
in its nature a "covenant real," that is, compensation
for its breach was awarded, not in damages, but in
445; Badger Lumber Co. v. bes, 23 111. 301, and as to build-
Marion Water Supply, Electric ing materials. Byrne v. Werner,
Light & Power Co., 48 Kan. 182, 138 Mich. 328, 69 L. R. A. 900,
15 L. R. A. 652, 30 Am. St. Rep. 110 Am. St. Rep. 315, 101 N. W.
301, 29 Pac. 476; Gorham v. 555; Contra, Hinkle v. Hinkle,
Eastchester Electric Co., 31 Abb. 69 Ind. 134; Woodman v. Pease,
N. C. 198, 29 N. Y. Supp. 1094. 17 N. H. 282; Peck v. Batchelder,
59. It was so held as to 40 Vt. 233, 94 Am. Dec. 392;
fencing materials. McLaughlin Blue v. Gunn, 114 Tenn. 414, 69
V. John, 46 111. 163; Ripley v. L. R. A. 892, 108 Am. St. Rep.
Paige, 12 Vt. 533; Hackett v. 912, 4 Ann. Cas. 1157, 108 S. W.
Amsden, 57 Vt. 432; Conklin v. 408.
Parsons, 2 Pinney (Wis.) 264; 60. See Rawle, Covenants for
Contra, Cook v. Whiting, 16 111; Title, § 57. The following out-
Hinkle v. Hinkle, 69 Ind. 134; line of the law of covenants
Longino v. Webster — (Tex. Civ. for title is based almost entirely
App.) — 88 S. W. 445. As to rail- upon this most admirable work,
road materials. Palmer v. For-
1676 Real Property. [§ 449
kind, by a judgment in favor of the warrantee or his
heirs, against the original warrantor or his heirs, for
the recovery of other lands equal in value to those
of which the warrantee had been deprived. A war-
ranty, operating, as it did, against the heir of the
warrantor, was, after the statute De Donis and before
the decision in Taltarum's Case, utilized for the pur-
pose, in particular cases, of barring estates tail, and
in the efforts to extend its effectiveness in this direction
the law of the subject was immensely extended and
complicated.*^^ The remedy on a warranty was avail-
able only in connection with freehold estates, and con-
sequently, if the warranty was attached to a term of
years, or if the grantee of a freehold estate was
evicted for a term, the warrantee could not recover.^-
In the later history of the subject, however, there was
a relaxation of this rule to the extent that when, in
such a case, the warranty failed as a covenant real, it
might be construed as a personal covenant on which an
action for damages might be brought.^^
After the introduction of conveyances under the
Statute of Uses, warranty, which was in its origin as-
sociated with the transfer by feoffment, was gradually
supplanted by personal covenants, the purpose of
which was to give a remedy in damages against the
covenantor in case of failure of title, and which were
available in connection with leasehold, as well as free-
hold, estates, and warranty was finally abolished by
statute in England in the nineteenth centur3\^^
In this country, settled after the common-law war-
ranty had lost, to a considerable extent, its importance
in England, that method of securing the grantee against
61. See Rawle, Covenants, c. 113; 1 Smith, Lead. Cas. 214.
1, where the nature of warranty 63. Pincombe v. Rudge, Hob.
at common law is clearly stated. 3g; Williams v. Burrell, 1 C. B.
See, also, 1 Smith, Lead. Cas. 402.
Eq. (8th Ed.) 213, American 64. See Rawle, Covenants, §§
notes to Sipencer's Case. 9-14; 8 Am & Eng. Encyc. Law
62. Rawle, Covenants, §§ 12, (2nd Ed.) 58, 78.
§ 449] Transfer Inter Vivos. 1677
loss from failure of title was never, to any extent,
utilized, but the law of personal covenants for title
lias been developed and extended to a greater extent
even than in England, where the particularity with
which intending purchasers examine the title has ren-
dered them comparatively superfluous.
By statute in some states, certain covenants for
title are implied from the use of particular operative
words in a conveyance, usually ''grant, bargain, and
sell,"*'^ and occasionally a covenant in form one of
warranty merely is by statute declared to imply cer-
tain other covenants for title.*^^ In some states, on
the other hand, it is enacted that no covenants shall
be implied in ^ conveyance of real estate.^'^
The covenants of title considered in the following
sections are ''general" covenants, that is, they are
in terms sufficient to protect the covenantee against the
claims of all persons whomsoever. Covenants may be,
however, and frequently are, "special" in character,
that is, they are so expressed as to atford protection
against the acts of the covenantor only, or of persons
claiming under him.*^^
A covenant for title, in tlie case of land conveyed
by metes and bounds, is not broken by reason of a
deficiency in the quantity stated to be conveyed thereby.
The statement of the quantity is controlled by the
description by metes and bounds, and the covenants
65. Stimson, Am. Stat. Law, man v. Goodwin, 11 Ariz. 141, 89
§ 1501; Rawle, Covenants, §§ 285, Pac. 517; Crawford v. McDonald,
286; Polak v. Mattson, 22 Idaho 84 Ark. 415, 106 S. W. 206; Polak
727, 128 Pac. 89; Maitlen v. v. Mattson, 22 Idaho 727, 128
Maitlen, 44 Ind. App. 559, 89 Pac. 89; Waldermeyer v. Loebig,
N. E. 966; Faller v. Davis, .30 222 Mo. 540, 121 S. W. 75;
Okla. 56, Ann. Cas. 1913B, 1181, Waslee v. Rossman, 231 Pa. 219,
118 Pac. 382; George A. Lowe Co. 80 Atl. 643.
v. Simmons Wareho'use Co., 39 67. 1 Stimson's Am. Stat. Law,
Utah 395, Ann Cas. 1913E, 246, § 1500; Rawle, Covenants, §
117 Pac. 874. 286. Ante, § 49.
66. See Mackintosh v. Stewart, 68. Rawle, Covenants, §§ 28,
181 Ala. 328, 61 So. 956; Sher- 29, 126.
D. P.— 31.
1678 Real Property. [§ 449
are construed as referring to the land conveyed.®* The
case is different however, when there is no description
by metes and bounds, and there is a conveyance of a
named quantity of land, a certain number of acres,
for instance, in a particular locality."^^
The grantee in a conveyance cannot assert that
there is a breach of the grantor's covenant for title by
reason of the fact that the title was, at the time of the
conveyance, in himself and not in the grantor. The
covenant extends only to the case of a title or right
in a third person.''^
The doctrine, so frequently asserted,'- that a
title subsequently acquired by a grantor enures by
operation of law to the person claiming under the
conveyance, has been applied in connection with cov-
enants for title, with the effect of wholly defeating the
right of action on the covenant, or of mitigating the
damages recoverable thereunder, usually to the extent
of excluding all substantial damages."'^ The covenantor
has not ordinarily, however, been allowed to assert this
69. Rawle, Covenants, § 297; (111.) 162; Smiley v. PYies, 104
Gulf Coal & Coke Co. v. Mus- 111. 416; Harrigan v. Rice, 39
grove, 195 Ala. 219, 70 So. 179; Minn. 49, 38 N. W. 765; Fitch
Ryan v. Batchelor, 95 Ark. 375, v. Baldwin, 17 Johns. (N. Y.)
129 S. W. 787; Littleton v. Green, 161; Eames v. Armstrong, 146
130 Ga. 692, 61 S. E. 593; Bur- N. C. 1, 125 Am. St. Rep. 436,
ton V. Cowles' Admx, 156 Ky. 59 S. E. 165; Holt v. Ruleau, 83
100, 160 S. W. 782; Mann v. Vt. 151, 74 Atl. 1005.
Pearson, 2 Johns. (N. Y.) 37; 72. Post. § 545.
McArthur v. Morris, 84 N. C. 73. Sayre v. Sheffield Land,
405; Mosteller v. Astin, 61 Tex. Iron & Coal Co., 106 Ala. 440,
Civ. App. 455, 129 S. W. 1136; 18 So. 101; King v. Gilson's
Brown v. Yoakum, — Tex. Civ. Adm'x, 32 111. 348; Baxter v.
App.—, 170 S. W. 803. But Bradbury, 20 Me. 260; Hartford
see Morris v. Owens, 3 Strobh. Ore Co. v. Miller, 41 Conn. 112;
(S. C.) 99. Southern Plantations Co. v. Ken-
70. Pecare v. Chouteau, 13 nedy Heading Co., 104 Miss. 131,
Mo. 527; Smith v. McGlothlin, 61 So. 166; Reese v. Smith, 12
— Tex. Civ. App. — , 153 S. W. Mo. 344; Morrison v. Underwood,
655. 20 N. H. 269; Farmers' Bank
71. Beebe v. Swartout, 3 Gil. v. Glenn, 68 N. C. 35; Cross v.
§ 450] Transfer Inter Vivos. 1G79
after acquired title by way of defense or in mitigation
of damages, if the title was not acquired by him until
after eviction,'* or until after the action on the covenant
was commenced.'''^ The propriety of allowing a vendor, in
any case, after having purported to convey when he
had no title, to force upon an unwilling vendee a
title subsequently acquired by him, after the property
has deteriorated in value, has boen strongly ques-
tioned.'^
§ 450. Covenant for seisin. The covenant by the
grantor that he is lawfully seised of the premises,
called the ''covenant of or for seisin," has different
effects in different juridictions, "Seisin" originally, as
before stated, meant the possession of land by one
having or claiming a freehold estate therein, either by
himself or by another in his behalf.'" This meaning of
"seisin" has been adopted in two or three states in
determining the effect of the covenant, and the covenant
is there regarded as a declaration by the grantor that
he is in possession, claiming such an estate as he
undertakes to convey, ordinarily a fee simple estate,
so that the fact that his possession is tortious does not
Martin, 46 Vt. 14; Building 397, 54 N. W. 89*; Southern
Light & Water Co. v. Fray, 96 Plantations Co. v. Kennedy Head-
Va. 559, 32 S. E. 58; McLennan ing Co., 104 Miss. 131, 61 So.
V. Prentice, 85 Wis. 427, 55 N. 166; Morris v. Phelps, 5 Johns.
W. 764. (N. Y.) 49, 4 Am. Dec. 323;
74. Burton v. Reeds, 20 Ind. Tucker v. Clark, 2 Sandf. Ch. 96;
87; Bethell v. Bethell, 92 Ind. Rombough v. Koons, 6 Wash.
318; Blanchard v. Ellis, 1 Gray 558, 34 Pac. 135; McLennan v.
(Mass.) 193; Resser v. Carney, Prentice, 85 Wis. 427, 55 N. W.
52 Minn. 397, 54 N. W. 89; 764; Contra. Boulter v. Hamilton,
Southern Plantations Co. v. Ken- 15 Up. Can. C. P. 125; Looney
nedy Heading Co., 104 Miss. 131, v. Reeves, 5 Kan. App. 279, 48
61 So. 166; Jones v. Gallagh-er, Pac. 606.
54 Okla. 611, 154 Pac. 552; Nichol 76. See Rawle, Covenants, §§
V. Alexander, 28 Wis. 128; Mc- 179-182; Sedgwick, Damages (9th
Innis V. Lyman, 62 Wis. 191, 22 Ed.) § 977.
N. W. 405. 77. Ante, § 14.
75. Resser v. Carney, 52 Minn.
K;80 Real Property. [§ 450
involve a breach of the covenant, though there is a
breach if another is in adverse possession. '^^ The
covenant, though thus limited in effect, may neverthe-
less be of great advantage to the grantee in any state
which still recognizes the doctrine that a conveyance of
land in the adverse possession of another is void;'^^
and this construction of the covenant presumably owes
its origin to the recognition by the courts of the prob-
ability that it was intended to secure the grantee
against the possible failure of the conveyance for this
cause.^*'
In a majority of the states, as in England, the
above view of the covenant of seisin has not been
accepted, but if has been construed with reference . to
the meaning which the words ''seisin" and ''seised"
acquired after the Statute of Uses*^^ as equivalent to
a declaration that the grantor has an estate, of the
quantum which he undertakes to convey, in the whole
land covered by the conveyance.^^ Accordingly the cov-
enant has been held to be broken when the grantor
78. Stearns v. Jewell, 27 Colo. 82. McCormick v. Marcy, 165
App. 390, 149 Pac. 846; Cush- Cal. 386. 1.32 Pac. 449; Lockwood
man v. Blanchard, 2 Me. 268, 11 v. Sturdevant, 6 Conn. 385; Efta
Am. Dec. 76; Wilson v. Widen- v. Swanson, 115 Minn. 373, 132
ham, 51 Me. 566; Marston v. N. W. 335; Real v. Hollister, 20
Hobbs, 2 Mass. 439. 3 Am. Dec. Neb. 112, 29 N. W. 189; Parker
61; Raymond v. Raymond, 10 v. Brown, 15 N. H. 186; Greenby
Cush. (Mass.) 134; Backus' v. Wilcocks, 2 Johns. (N. Y.) 1,
Adm'rs v. McCoy, 3 Ohio, 211, 17 3 Am. Dec. 379; Fishel v. Brown-
Am. Dec. 585; Stambaugh v. ing, 145 N. Car. 71, 58 S. E. 759;
Smith, 23 Ohio St. 584; Wetzell Joiner v. Ardmore Loan & Trust
V. Richcreek, 53 Ohio St. 62, 40 Co., 33 Okla. 266, 124 Pac. 1073;
N. E. 1004. See also, Bottorf v. Cobb v. Klosterman, 58 Ore. 211.
Smith, 7 Ind. 673; Axtel v. Chase. 114 Pac. 96; Pringle v. Witten's
77 Ind. 74; Scott v. Twiss, 4 Neb. Ex'rs, 1 Bay (S. C.) 256. 1 Am.
133; Webb v. Wheeler, 80 Neb. Dec. 612; Woods v. North, 6
438, 17 L. R. A. (N. S.) 1178, Humph. (Tenn.) 309, 44 Am.
114 N. W. 636. Dec. 312; Wick v. Rea, 54 Wash.
79. See post, § 590. 424, 103 Pac. 462. It is "an
80. Rawle, Covenants, §§ 47-54. assurance to the purchaser that
81. A7ite, § 14. the grantor has the very estate
§ 450]
Transfer Inter Vivos.
1681
bad no title to the land, that is, no rightful estate
therein,^"^ and likewise when one tenant in common
purported to convey an estate in severalty in the land.*^
It has also been regarded as broken by the fact that
things annexed to the joremises are subject to a right of
removal in a third person,^^ and by the fact that rights
properly appurtenant to the land, or which purport to
be conveyed therewith, such as a right of flowage, are
not vested in the grantor so as to pass with the land.*^
The covenant is not broken by the existence of a lien
on the land,^' or of a right of use in a third person or
in the public.^^
Whether, in states in which an outstanding title
is regarded as involving a breach,^^ apart from any
in quantity and quality which
he purports to convey." Howell
V. Richards, 11 East. 641, per
Lord EUenborough.
83. Anderson v. Knox, 20 Ala.
156; Abbott v. Rowan, .33 Ark.
593; McCormick v. Marcy, 165
Cal. 386, 132 Pac. 44; Zent v.
Picken, 54 Iowa, 535, 6 N. W.
750; Allen v. Allen, 48 Minn.
462, 51 N. W. 473; Cockrell v.
Proctor, 65 Mo. 41; Arnold v.
Joines, 50 Okla. 4, 150 Pac. 130.
84. Hartford Ore Co. v. Miller,
41 Conn. 112; Hencke v. Johnson,
62 Iowa, 555, 17 N. W. 766; Sedg-
wick V. Hollenback, 7 Johns. (N.
Y.) 376; Downer's Adm'rs v.
Smith, 33 Vt. 464.
85. Van Wagner v. Van Nos-
trand, 19 Iowa, 427; Mott v. Pal-
mer, 1 N. Y. 564; Herzog v. Marx,
202 N. Y. 94 N. E. 1063.
86. Seyfried v. Knoblauch, 44
Colo. 86, 96 Pac. 993; Traster
V. Nelson's Adm'r, 29 Ind. 96;
Ballard v. Child, 34 Me. 355;
Adams v. Conover, 87 N. Y. 422,
41 Am. Rep. 381 ; Walker v.
Wilson, 13 Wis. 522.
In Clark v. Conroe, 38 Vt.
469, it was held that the fact
that a third person had been
given the right to divert the
water from a spring on the
premises involved a breach of the
covenant, upon the somewhat
doubtful ground that this involv-
ed the grant to another of a
part of the land itself.
87. Fitzhugh v. Croghan, 2 J.
J. Marsh (Ky.) 429, 19 Am. Dec.
139; Sedgwick v. Hollenback, 7
Johns. (N. Y.) 376; Zerfing v.
Seelig, 14 S. Dak. 303, 85 N. W.
585 (taxes).
88. Moore v. Johnston, 87 Ala.
220, 6 So. 50; Douglass v. Thom-
as, 103 Ind. 187, 2 N. E. 562;
Ginn v. Hancock, 31 Me. 42;
Kellogg V. Malin, 50 Mo. 496, 11
Am. Rep. 426; Blondeau v.
Sheridan, 81 Mo. 545; Contra,
Haynie v. American Trust Invest.
Co., (Tenn. Ch.), 39 S. W. 860;
Perry v. Williamson, (Tenn. Ch.),
47 S. W. 189.
89. A7ite. this section, note 82.
1682 Bead Property. [§ 450
question of the right to convey land in another's
adverse possession, the mere fact that the land is
in another's possession constitutes a breach of the
covenant does not clearly appear.^*' There is a breach,
it seems evident, if the adverse possession has already
continued for such a length of time as to give title. ^^
That the grantor had a life estate merely in the
land has been held to involve a breach of the covenant
for seisin,^^ but in each of the cases to this effect the
covenant was in express terms for seisin in fee simple.
That his estate in fee simple was subject to a life
estate in another has also been regarded as involving
a breach.^3 An outstanding inchoate right of dower
does not involve a breach.^*
Wliether an outstanding term of years created by
lease involves a breach of the covenant is a matter upon
which the decisions, few in number, are not entirely in
accord.''^ The solution of the question in any particu-
lar case may depend, it has been suggested, to some
extent at least, upon the surrounding circumstances,
as showing the intention of the parties in this regard.^®
90. See Rawle, Covenants, § J. Marsh (Ky.) 429, 19 Am. Dec.
54, note. That it is a breach ap- 139; Whisler v. Hicks, 5 Blackf.
pears to be asserted in Lindsay (Ind.) 100, 33 Am. Dec. 454;
V. Veasy, 62 Ala. 421; Mackintosh Kuntzman v. Smith, 77 N. J.
V. Stewart, 181 Ala. 328, 61 So. Eq. 30, 75 Atl. 1009; Lewis v.
956; Fitzhugh v. Croghan, 2 J. Lewis, 5 Rich. Law (S. Car.) 12;
J. Marsh (Ky.) 430, 19 Am. Dec. Building, Light & Water Co. v.
139; Thomas v. Perry, Peters Fray, 96 Va. 559, 32 S. E. 58;
C. C. 49. Nor a right of dower consummate
91. Wilson V. Forbes, 2 Dev. before assignment of dower.
(N. Car.) 30. See Larson v. Fishel v. Browning, 145 N. C.
Goettl, 103 Minn. 272, 114 N. W. 71, 58 S. E. 759.
840, commented on in 21 Harv. 95. That it is not within the
Law Rev. 628. covenant, see Lindley v. Dakin,
92. Frazer v. Board of Super- 13 Ind. 389; Kellum v. Berkshire
visors, 74 111. 282; Lockwood v. Life Ins. Co., 101 Ind. 455. That
Sturdevant, 6 Conn. 373; Tanner it is, see Langenberg v. Herr
V. Livingtone, 12 Wend. (N. Y.) Dry Goods Co., 74 Mo. App. 12.
83. 96. See Rawle, Covenants, §
93. Mills V. Catlin, 22 Vt. 106. 58, note.
94. Fitzhugh v. Croghan, 2 J.
§§ 451, 452] Transfer Inter Vivos. 1683
§ 451. Covenant for right to convey. The covenant
that the grantor has a right to convey the land is usu-
ally equivalent to the covenant for seisin, whichever
view of the operation of the latter covenant may he
taken in the particular jurisdiction, and similar con-
siderations determine the question of breach in the
case of each covenant.^" There may, however, be
a right to convey, though there is no seisin or title,
as when the conveyance is under a power,^^
§ 452. Covenant against incumbrances. An "in-
cumbrance," as the term is used in a covenant that the
premises are free and clear of all incumbrances, has
been defined, in a general way, as "every right to or
interest in the land which may subsist in third persons,
to the diminution of the value of the land, but con-
sistent with the passing of the fee by the conveyance.''^
A lien^ is ordinarily an incumbrance, w^hether it is
97. Peters v. Bowman, 98 U. 99. Rawle, Covenants, § 75;
S. 56, 25 L. Ed. 91; Copeland v. Tuskegee Land & Security Co. v.
McAdory, 100 Ala. 553, 13 So. Birmingham Realty Co., 161 Ala.
545; Adams v. SchifEer, 11 Colo. 542, 49 So. 378, 23 L. R. A. (N.
15, 7 Am. St. Rep. 202; Mitchell S.) 992; Fraser v. Bentel, 161
V. Kepler, 75 Iowa, 207, 39 N. W. Cal. 390, 119 Pac. 509, Ann. Cas.
241; Allen v. Say ward, 5 Me. 227; 1913B, 1062; Kelsey v. Remer,
Baldwin v. Timmins, 3 Gray. 43 Conn. 129, 21 Am. Rep. 638;
(Mass.) 302; Willard v. Twit- Prescott v. Trueman, 4 Mass. 630,
chell, 1 N. H. 177; Faller v. 3 Am. Dec. 246; Simons v. Dia-
Davis, 30 Okla. 56, Ann. Cas. mond Batch Co., 159 Mich. 241,
1913B, 1181, 118 Pac. 382; Build- 123 N. W. 1132; Carter v. Den-
ing, Light & Water Co. v. Fray, man's Ex'rs, 23 N. J, L. 260;
96 Vt. 559, 32 S. E. 58. Huyck v. Andrews, N. Y. 81, 10
98. Rawle, Covenants, § 06. Am. St. Rep. 432; Lafferty v.
See Devore v. Sunderland, 17 Milligan, 165 Pa. St. 534, 30
Ohio, 52, 49 Am. Dec. 442; Slater Atl. 1030.
V. Rawson, 6 Mete. (Mass.) 439. 1. See post, Part 6.
1684
Real. Property.
[§ 452
a mortgage,^ a judgment lien,'' a lien for taxes,^ or any-
other of the various classes of liens.^
An easement is, generally speaking, an ineum-
brance,''" as has been recognized, for instance, in the
2. Bean v. Mayo, 5 Me. 94;
Brooks V. Moody, 25 Ark. 452;
McLaughlin v. Rice, 108 Iowa,
254, 78 N. W. 1105; Wyman v.
Ballard, 12 Mass. 304; Hasselbuch
V. Mohm-King, 76 N. J. L. G91,
73 Atl. 961; Corbett v. Wrenn,
25 Or. 305, 35 Pac. 658; Funk v.
Voneida, 11 Serg. & R. (Pa.)
109, 14 Am. Dec. 617.
3. Jenkins v. Hopkins, 8 Pick.
(Mass.) 346; Holman v. Creag-
miles, 14 Ind. 177; Hall v. Dean,
13 Johns. (N. Y.) 105; Jones v.
Davis, 24 Wis. 229.
4. FuUer v. Jillett (C. C), 2
Fed. 30; Crowell v. Packard, 35
Ark. 348; Almy v. Hunt, 48 HI.
45; Cochran v. Guild, 106 Mass.
29, 8 Am. Rep. 296; Eaton v.
Chesebrough, 82 Mich. 214, 46 N.
W. 365; Campbell v. McClure, 45
Neb. 608, 63 N. W. 920; Cadmus
V. Fagan, 47 N. J. Law 549. 4
Atl. 323; Plowman v. Williams,
6 Lea (Tenn.) 268; George A.
Lowe Co. V. Simmons Warehouse
Co., 39 Utah 395, 117 Pac. 874.
Ann. Cas. 1913E, 246.
So the lien of a special assess-
ment for the benefits of a munic-
ipal improvement. Maloy v.
Hall, 190 Mass. 277, 76 N. E.
452; Real Estate Corp. of New
York City v. Harper, 174 N. Y.
123, 66 N. E. 660; Green v. Tid-
ball. 26 Wash. 338, 55 L. R. A.
879, 67 Pac. 84.
Under some tax systems, taxes
may be an incumbrance within
the covenant although the amount
thereof has not been ascertained
at the time of conveyance.
Hill V. Bacon, 110 Mass. 387;
Pierse v. Bronnenberg's Estate,
40 Ind. App. 662. 81 N. E. 739,
82 N. E. 126; George A. Lowe
Co. V. Simmons Warehouse Co.,
39 Utah 395, 117 Pac. 874, Ann.
Cas. 1913E, 246; Peters v. Myers,
22 Wis. 602. And likewise lia-
bility to payment of benefits for
a municipal improvement may
constitute an incumbrance even
before the amount of the bene-
fits is ascertained. See First
Church of Christ, Scientists, of
New Albany, v. Cox, 47 Ind. App.
536, 94 N. E. 1048; Cotting v.
Commonwealth, 205 Mass. 523, 91
N. E. 900: Hartshorn v. Cleve-
land, 52 N. J. L. 473, 19 Atl.
974; Lafferty v. Milligan, 165 Pa.
534, 30 Atl. 1030; Bowers v.
Narragansett Real Estate Co.. 28
R. I. 365. 67 Atl. 521; Knowles
V. Temple, 49 Wash. 595, 96 Pac.
1.
5. So, an attachment lien
(Kelsey V. Remer, 43 Conn. 129,
21 Am. Rep. 638, and Norton v.
Babcock, 2 Mete. [Mass.] 510);
a vendor's lien (Thomas v. St.
Paul's M. E. Church, 86 Ala. 138.
5 So. 508).
6. Weiss v. Binnian. 178 111.
241, 52 N. E. 969, Mackey v.
Harmon, 34 Minn. 168, 24 N.
W. 702; Jarvis v. Buttrick, 1
Mete. (Mass.) 480; Smith v.
Davis, 44 Kan. 362, 24 Pac. 428;
Huyek v. Andrews, 113 N. Y.
§ 452]
Transfer Inter Vivos.
1685
case of a private right of way over the land conveyed,"
a right to maintain a drain or artificial water course
thereon,^ or a right to flow the land.^ An easement,
however, created hj ''implication" upon the convey-
ance of a quasi servient tenement, has been regarded as
not within a covenant against incumbrances in such
a conveyance, or as in any way affected by such
covenant/^ A natural right in the owner of neighbor-
ing land, such as a right to the uninterrupted flow of a
stream,^- is not within such a covenant,^^ but a privilege
in a third person to interfere with such a natural
right, being in the nature of an easement,^^ is within
it,^^ as is the privilege of taking water from a sjiring or
stream on the land.^*^
A covenant as to the use of land, or a restriction
81. 3 L. R. A. 789. 10 Am. St.
Rep. 432. 20 N. E. 581; Smith
T. White, 71 W. Va. 639. 48 L.
R. A. (N. S.) 623, 78 S. E. 378.
7. Mitchell v. Warner. 5 Conn.
497; Newmyer v. Roush, 21 Idaho,
106 Ann Cas. 1913D, 433, 120 Pac.
464; MeGowen v. Myers, 60
Iowa 256; 14 N. W. 788; Blake
V. Everett, 1 Allen (Mass.) 248;
Wilson V. Cochran, 46 Pa. St.
229.
8. Prescott v. White, 21 Pick.
(Mass.) 341, 32 Am. Dec. 266:
Johnson v. Knapp, 146 Mass. 70,
15 N. E. 134; McMullin v. Wooley,
2 Lans. (N. Y.) 394; Smith v.
Spragne, 40 Vt. 43.
9. Scriver v. Smith. 100 N.
Y. 471. 53 Am. Rep. 224; Lamb
V Danforth, 59 Me. 322; Isele v.
Arlington Five Cent Savings
Bank. 135 Mass. 142; Patterson
V. Sweet, 3 111. App. 550. But
see as to the rule in Maine and
Massachusetts, as affected by the
flowage acts of those states,
Rawle. Covenants, § 83.
10. Ante, § 363(b).
11. Cary v. Daniels, 8 Mete.
(Mass.) 466, 41 Am. Dec. 532;
Dunklee v. Wilton R. Co.. 24 N.
H. 489; Harwood v. Benton, 32
Vt. 724; Bennett v. Booth, 70
W. Va. 264. 39 L. R. A. (N. S.)
618. 73 S. E. 909; Kutz v. Mc-
Cune, 22 Wis. 628. 99 Am. Dec.
85. See Rawle, Covenants, §
85. Compare Denman v. Mentz,
63 N. J. Eq. 613, 52 Atl. 1117.
12. Ante, §§ 335-347.
13. Prescott v. Williams, 5
Mete. (Mass.) 429. See Corse
V. Dexter, 202 Mass. 31, 88 N.
E. 332.
14. Ante, §§ 351, 352.
15. Huyck V. Andrews, 113 N.
Y. 81, 3 L. R. A. 789, 10 Am. St.
Rep. 432, 20 N. E. 581; Morgan
V. Smith, 11 111. 199. But see
Cary v. Daniels, 8 Mete. (Mass.)
466, 41 Am. Dec. 532.
16. Morgan v. Smith, 11 111.
194; Mitchell v. Warner, 5 Conn.
497.
1686
Eeal Peopeety.
[§ 452
upon its use, wlietlier enforceable at law or in equity,
is a breach of the covenant against incumbrances,^^ as
is an obligation upon the owner of the land to maintain
a fence. ^^ A right to take profits from the land is
also an incumbrance.^®
A public highway has in some cases been regarded
as within the covenant,-^ though in others a different
view has been adopted as to a rural highway, on the
theory, either that the existence of the highway, or
of the system of which it forms a part, is presumably
a benefit to the property, or that it may be presumed to
have been known to the purchaser and considered in
adjusting the price paid for the land.^^ Likewise a
17. Fraser v. Bentel, 161 Cal.
390, Ann. Cas. 1913B, 1062, 119
Pac. 509; Hatcher v. Andrews, 5
Bush (Ky.) 561; Halle v. New-
bold, 69 Md. 265, 14 Atl. 662;
Locke V. Hale, 165 Mass. 20, 42
N. E. 331; Foster v. Foster, 62
N. H. 46; Roberts v. Levy, 3 Abb.
Pr. Rep. (N. S.) 311; Docter v.
Darling, 68 Hun N. Y.) 70;
Greene v. Creighton, 7 R. I. 1;
Williams v. Hewitt, 57 Wash.
62, 135 Am. St. Rep. 971, 106 Pac.
496. But see Thurgood v. Spring,
139 Cal. 596, 73 Pac. 456.
18. Bronson v. Coffin, 108
Mass. 175, 11 Am. Rep. 335; Bur-
bank V. Pillsbury, 48 N. H. 475,
97 Am. Dec. 633.
19. Brodie v. New England
Mortg. Sec. Co., 166 Ala 170, 51
So. 861; Weiss v. Binman, 178
111. 241 (right to cut ice) ; Spurr
V. Andrew, 6 Allen (Mass.) 420;
Stambaugh v. Smith, 23 Ohio St.
584. Kreinbring v. Matthews,
81 Ore. 243, 159 Pac. 75; Cathcart
V. Bowman, 5 Pa. St. 317: Gadow
V. Hunhaltz, 160 Wis. 293, 151
N. W. 810 (right to cut ice).
20. De Jaruette v. Dreyfus, 166
Ala. 138, 51 So. 932; Hubbard v.
Norton, 10 Conn. 423; Burk v.
Hill, 48 Ind. 52, 17 Am. Rep.
731; Herrick v. Moore, 19 Me.
313; Kellogg v. Ingerson, 2 Mass.
101; Kellogg v. Malin, 50 Mo.
496, 11 Am. Rep. 426; Butler v.
Gale, 27 Vt. 739; Trice v. Kayton,
84 Va. 217, 10 Am. St. Rep. 836,
4 S. E. 377. See in support of
such a view, editorial notes 13
Columbia Law Rev. 655, 27 Harv.
Law Rev. 386.
21. Des Vergers v. Willis, 56
Ga. 515, 21 Am. Rep. 289; Harri-
son V. Des Moines & Ft. D. Ry.
Co., 91 Iowa 114, 58 N. W. 1081;
Sandum v. Johnson, 122 Minn.
368, 48 L. R. A. N. S. 619, 142
N. W. 878; Killen v. Funk, 83
Neb. 622, 131 Am. St. Rep. 658,
120 N. W. 189; Whitbeck v. Cook.
15 Johns. (N. Y.) 483; Huyck v.
Andrews, 113 N. Y. 81, 10 Am.
St. Rep. 432, 3 L. R. A. 789, 20
N. E. 581; Patterson v. Arthurs,
9 Watts (Pa.) 152; Wilson v.
Cochran, 46 Pa. St. 233; Deacons
V. Doyle, 75 Va. 258; Barre v.
§ 452]
Transfer Inter Vivos.
1687
railroad right of way has in some cases been regarded
as an incumbrance for this purpose,-- and in some
cases has not been so regarded.-"
The existence of a right of dower, whether in-
choate or consummate, has been regarded as involving
a breach of the covenant,-^ as has a lease for years
outstanding in a third person.-^ Occasionally the
fact that by reason of a release, or by legislation of a
particular character, the grantee will be unable to
recover the normal damages for the making of a
Fleming, 29 W. Va. 314, 325, 1
S. E. 731; Kutz v. McCune, 22
Wis. 628, 99 Am. Dec. 85.
A like view, that it is not an
incumbrance, tias been taken as
regards a county drainage ditch,
Stuhr V. Butterfield, 151 Iowa
736, 36 L. R. A. N. S. 321, 130
N. W. 897, an irrigation ditch
authorized by Congress for recla-
mation of arid land. (Schurger
V. Mooreman 20 Idaho 97, 36 L.
R. A. N. S. 313, A. & E. Ann.
Cas. 1912D, 1114, 117 Pac. 122.
Compare Feldhut v. Brummitt,
96 Kan. 127, 150 Pac. 549). And
a public sewer. First Unitarian
Society of Iowa City v. Citizens
Sav. & Trust Co., 162 Iowa, 389,
51 L. R. A. (N. S.) 428, Ann. Cas.
1916B, 575, 142 N. W. 87, com-
mented on in editorial notes 13
Columbia Law Rev. 655, 1 Vir-
ginia Law Rev. 79.
Such a view has, however, been
regarded as not applicable when
the fpublic easement was not
apparent. Hymes v. Estey, 116
N. Y. 501, 15 Am. St. Rep. 421,
22 N. E. 1087; Howell v. North-
ampton Railway Co., 211 Pa. 284,
60 Atl. 793. Contra, Sandum v.
Johnson, 122 Minn. 368, 48 L. R.
A. N. S. 619, 142 N. W. 878.
22. Beach v. Miller, 51 111.
206, 2 Am. Rep. 290; Wadhams
V. Swan, 109 111. 46; Quick v.
Taylor, 113 Ind. 540, 16 N. E.
588; Barlow v. McKinley, 24
Iowa 69; Kellogg v. Malin, 50
Mo. 496, 11 Am. Rep. 426; Pritch-
ard V. Rebori, 135 Tenn. 328, 186
S. W. 121; Farrington v. Tur-
telott (C. C.) 39 Fed. 738.
23. Geren v. Caldarara, 99 Ark.
260, 138 S. W. 335; Van Ness v.
Royal Phosphate Co., 60 Fla. 284,
30 L. R. A. N. S. 833, Ann. Cas.
1912C, 647, 53 So. 381; Goodman
V. Heilig, 157 N. C. 6, 36 L. R.
A. N. S. 1004, 72 S. S. 866.
24. Barnett v. Gaines, 8 Ala.
373; McCord v. Massey, 155 111.
123, 39 N. E. 592; Porter v.
Noyes, 2 Me. 22, 11 Am. Dec.
30; Runnels v. Webber, 59
Me. 488; Bigelow v. Hubbard, 97
Mass. 195; Crowley v. C. N. Nel-
son Lumber Co., 66 Minn. 400,
69 N. W. 34; Walker's Adm'r v.
Deaver, 79 Mo. 664; Russ v.
Perry, 49 N. H. 547; Carter v.
Denman's Ex'rs, 23 N. J. Law
260; Fishel v. Browning, 145 N.
Car. 71, 58 S. E. 759.
25. Crawford v. McDonald, 84
1688 Real Property. [§ 452
public improvement, has been viewed as involving a
breach of the covenant.-*^
It is stated by the leading authority on the sub-
ject that the character of the outstanding right or
interest is not always sufficient to determine whether
it constitutes an incumbrance, within the particular
covenant in question, but in some cases the question
must be determined by reference to "the subject-mat-
ter of the contract, the relation of the parties to it and
to each other, the notice on the part of the purchaser,
and, to some extent, the local usage and habit of the
country. "^'^ So, in determining whether a certain in-
cumbrance is within the covenant, the whole convey-
ance is to be considered and not merely the clause con-
taining the covenant. Thus, when the conveyance
expressly provides that the grantee will pay the mort-
gage debt^^ or that he takes subject to the mortgage,^^
the existence of the mortgage is not a breach of the
covenant, though not expressly excepted therefrom, and
Ark. 415, 106 S. W. 206; Musial O'Connor v. Enos, 56 Wash. 448,
V. Kudlik, 87 Conn. 164, 87 Atl. 105 Pac. 1039.
551; Wragg & Son v. Mead, 120 26. Tuskegee Land & Security
Iowa 319, 94 N. W. 856; Barker Co. v. Birmingham Realty Co.,
V. Denning, 91 Kan. 485, 138 Pac. 1^1 Ala. 542, 23 L. R. A. (N. S.)
573; Batchelder v. Sturgis, 3 ^^2, 49 So. 378; Forster v.
Cush. (Mass.) 201; Simons v. ^cott, 136 N. Y. 577. 18 L. R. A.
Diamond Match Co., 159 Mich. ^43, 32 N. E. 976; Evans v. Tay-
241, 123 N. W. 1132; Fritz v. ^^Z' ^^^ ^^- ^86, 69 L. R. A.
Pusey, 31 Minn. 368, 18 N. W. ^ ,1 \^^\ ^^^- , , ,,
„, „ ,, 27. Rawle, Covenants, § 76.
94; Brass v. \andecar, 70 Neb. oo Tir ♦+ ttt i a t.t tt
' 28. Watts v. Welman, 2 N. H.
35, 96 N. W. 1035; Malsbary v. ^gg
Jacobuis, 88 Neb. 751, 130 N. W. 29. Freeman v. Foster, 55 Me.
424; Demars v. Koehler, 62 N. J. 508; Drury v. Holden, 121 lU.
L. 203. 72 Am. St. Rep. 642. 41 130, 13 N. E. 547; Johnson v.
Atl. 720; Grice v. Scarborough, Nichols, 105 Iowa, 122; Walther v.
2 Speers (S. C.) 649, 42 Am. Dec. Briggs, 69 Minn. 98; Jackson
391; Brown v. Taylor, 115 Tenn. v. Hoffman, 9 Cow. (N. Y.) 271;
1, 4 L. R. A. N. S. 309, 112 Am. Brown v. South Boston Sav.
St. Rep. 811, 88 S. W. 933; Bank, 148 Mass. 300, 19 N. E.
Sawyer v. Little, 4 Vt. 414; 382.
§ 452] Transfer Inter Vivos. 1680
even in states where a highway is regarded as an in-
cumbrance, though a conveyance of land as bounded
by a highway passes the land to the center of the
highway, subject to the highw^ay use, the grantor is not
liable under his covenant on account of such highway.^*^
Likewise, if the conveyance is expressed to be subject
to an easement, the covenantee cannot assert that the
easement constitutes a breach of the covenant.^ ^ And
while ordinarily an outstanding lease on the premises
has been regarded as an incumbrance,^- a different
view has occasionally been taken when the grantor in
terms transferred to the grantee and the grantee ac-
cepted the benefit of the lessee's stipulations as to rent
and the like.'^"
In several cases, the fact that the grantee had
orally agreed to pay the taxes has been held to show
that the lien for taxes was not w^ithin the operation
of the covenant,^* and a like view has been taken as
to a mortgage the payment of which the gran-
tee had, by an extraneous agreement, assum-
ed.^^ In some cases the fact that the grantee
had notice, actual or constructive, of a highw^ay upon
the land, has been regarded as taking such incumbrance
out of the operation of the covenant.^^ In two or three
30. Frost V. Angier, 127 Mass. W. 1132.
212; Patten v. Fitz, 138 Mass. 34. Fitzer v. Fitzer, 29 Ind.
456; Holmes v. Danforth, 83 Me. 468; Blood v. Wilkins, 43 Iowa
139, 21 Atl. 845; City of Cin- 565; Gill v. Ferrin, 71 N. H.
cinnati v. Brachman, 35 Ohio St. 421, 52 Atl. 558. Contra, Pierse
289. T. Bronnenberg, 40 Ind. App. 662,
31. Pettee v. Hawes, 13 Pick. 81 N. E. 739; 82 N. E. 126.
(Mass.) 323. 35. Watts v. Welman, 2 N. H.
32. Ante, this section, note 25. 458; Reid v. Sycks, 27 Ohio St.
33. Mann v. Montgomery, 6 285. And see post, this section,
Cal. App. 646, 92 Pac. 875; Hald- note 42.
ane v. Sweet, 55 Mich. 196, 36. Des Vergers v. Willis, 56
20 N. W. 902; Pease v. Christ, 31 Ga. 515, 21 Am. Rep. 289; Crans
N. Y. 141. See Musial v. Kud- v. Durdall, 154 Iowa 468, 134 N.
Ilk, 87 Conn. 164, 87 Atl. 551. W. 1068; Weller v. Fidelity Trust
And compare Simons v. Diamond & S. V. Co., 23 Ky. L. Rep. 1136,
Match Co., 159 Mich. 241, 123 N. 64 S. W. 843; Hymes v. Estey,
1G90
Real Propebty.
[^ 452
cases the fact that the existence of an incumbrance in
favor of an individual was apparent upon an inspec-
tion of the land, and that consequently the grantee
might be jjresumed to have known thereof, has been re-
garded as showing that it was not intended to be
covered by the covenant,^' but these cases are excep-
tional. That the grantee's knowledge of an existing
incumbrance in no way relieves him of liability under
the covenant by reason thereof has been frequently
decided, without any suggestion that such knowledge
may be considered for the exclusive purpose of show-
ing that the particular incumbrance was not intended
to be covered by the covenant .^^
The cases are generally to the effect that ex-
traneous evidence is not admissible at law to show an
agreement that a certain incumbrance was not to in-
116 N. Y. 501, 15 Am. St. Rep.
421, 22 N. E. 1087; Ake v. Mason,
101 Pa. 17; Trice v. Kayton, 84
Va. 217, 10 Am. St. Rep. 836, 4 S.
E. 377. So in the case of a public
levee, Ireton v. Thomas, 84 Kan.
70, 113 Pac. 306. But that no-
tice of the highway has no such
effect, see Copeland v. McAdory,
100 Ala. 553, 13 So. 545; Hub-
bard V. Norton, 10 Conn. 423; De
Long V. Spring Lake Beach Im-
provement Co., 72 N. J. L. 125
59 Atl. 1034. And see ante, this
section, notes 20, 21.
37. Janes v. Jenkins, 34 Md.
1; Memmert v. McKeen, 112
Pa. St. 315, 4 Atl. 542; Kutz v.
McCune, 22 Wis. 628, 99 Am.
Dec. 85.
38. Anniston Lumber & Mfg.
Co. V. Griffis, —Ala.—, 73 So.
418; Eriksen v. Whitescarver,
57 Colo. 409, 142 Pac. 413; Hub-
bard V. Norton, 10 Conn. 422, 431;
Godwin v. Maxwell, 106 Ga. 194,
32 S. E. 114; Newmyer v. Romish,
21 Idaho, 106 Ann. Cas. 1913D,
433, 120 Pac. 464; Beach v. Mil-
ler, 51 111. 206, 2 Am. Rep. 290;
Burk V. Hill, 48 Ind. 52, 17 Am.
Rep. 731; Yancey v. Tatlock, 93
Iowa, 386, 61 N. W. 997; Helton
V. Asher, 135 Ky. 751, 123 S. W.
285; Edwards v. Clark, 83 Mich.
246, 10 L. R. A. 659, 47 N. W.
112; Kellogg v. Malin, 50 Mo.
496, 11 Am. Rep. 426; Burr v.
Lamaster, 30 Neb. 688, 9 L. R. A.
637, 27 Am. St. Rep. 428, 46
N. W. 1015; Demars v. Koehler,
62 N. J. L. 203, 72 Am. St. Rep.
642, 41 Atl. 720; Huyck v. An-
drews, 113 N. Y. 81, 3 L. R. A.
789, 10 Am. St. Rep. 432, 20 N.
E. 581; Long v. Moler, 5 Ohio St.
272; Corbett v. Wrenn, 25 Ore.
305, 35 Pac. 658; Funk v.
Voneida, 11 Serg. & R. (Pa.) 112,
14 Am. Dec. 617; Grice v. Scar-
borough, 2 Speers (S. C.) 649,
42 Am. Dec. 391. Brown v.
§ 452] Transfer Inter Vivos. 1691
volve a violation of the covenant.^^ That the parties
failed, however, by mistake, to insert such agreed ex-
ception in the covenant as written, has been regarded
as ground for reformation in a court of equity,^'' and
occasionally equity has interposed by injunction, on the
theory of fraud or mistake, to restrain an action at
law on the covenant, when the asserted breach con-
sisted of an incumbrance which the parties had agreed
to except from the operation of the covenant.^ ^ Nor,
it seems, does the rule excluding evidence of an ex-
traneous agreement excepting an incumbrance from the
operation of the covenant necessarily exclude evidence
of an agreement by the covenantee assuming an in-
cumbrance, although the effect thereof may be to show
that such incumbrance is not within the covenant.
Oral evidence is always admissible to aid in the inter-
pretation of a writing, and so, it seems, oral evidence
of the assumption is admissible to aid in the inter-
pretation of the covenant, as showing that the covenant
was not intended to cover the incumbrance assumed.
As before indicated, the admissibility of the oral as-
sumption has occasionally been sustained on the ground
that it is introduced merely to show the real considera-
Taylor, 115 Tenn. 1, 112 Am. St. Butler v. Gale, 27 Vt. 739; O'Con-
Rep. 811, 4 L. R. A. N. S. 309, nor v. Enos, 56 Wash. 448, 105
88 S. W. 93:i; O'Connor v. Enos, Pac. 1039. In Indiana such evi-
56 Wash. 448, 105 Pac. 1039; dence has, however, been admitted.
Levett V. Withrington, Lutw. 97. Allen v. Lee, 1 Ind. 58, 48 Am.
39. Rawle, Covenants. § 88, p. Dec. 352; Pitman v. Conner, 27
113, note; Holley v. Young, 27 Ind. 337. So in Illinois. Bidders
Ala. 203; Doyle v. Emerson, 145 v. Riley, 22 111. 109; and Idaho,
Iowa, 358, 124 N. W. 176; Spurr Urich v. McPherson, 27 Idaho
v. Andrew, 6 Allen (Mass.) 420; 319, 149 Pac. 295.
Flynn v. Bourneuf, 143 Mass. 277, 40. Rawle, Covenants, § 88, p.
58 Am. Rep. 135, 9 N. E. 650; 112; Haire v. Baker, 5 N. Y. 357;
Simons V. Diamond Match Co., Van Wagner v. Van Nostrand, 19
159 Mich. 241, 123 N. W. 1132; Iowa, 427.
Long V. Moler, 5 Ohio St. 271; 41. Taylor v. Oilman, 25 Vt.
Grice v. Scarborough, 2 Speers 411; Sanders v. Wagner, 32 N. J.
(S. C.) 649, 42 Am. Dec. .^1; Eq. 506.
1692 Real Peopebty. [§ 453
tion,*^ but this involves a contradiction of the recital
of the consideration, for the purpose of varying a con-
tractual liability, and the view above suggested, that
evidence of the assumption is admissible as aiding in
the interpretation of the covenant would appear to be
preferable. *^^ Some courts have refused to admit
evidence of the oral assumption for the purpose of
affecting one's liability upon the covenant.'*^^
§ 453. Covenants for quiet enjoyment and of war-
ranty. The covenant that the covenantee shall quietly
enjoy the premises conveyed without disturbance, and
the covenant to warrant and defend the premises,
termed, respectively, the covenants for "quiet enjoy-
ment" and "of warranty," are substantially similar in
effect, except when some variation is introduced by the
particular language used.^^
The modern covenant of warranty, by which one
covenants that he will warrant and defend the premises
unto the grantee against all lawful claims by third
persons, is entirely different from the old common law
w^arranty, and is merely a personal covenant, a breach
of which entitles one to the recovery of damages. It
is not recognized in England, and appears to have
arisen in this country from the fact that the early con-
veyances contained both personal covenants and a
clause in the form of the common law warranty, and
that this latter, as it w^as no longer utilized as a real
covenant, became incorporated in the clause containing
the personal covenants, and so became itself a cov-
enant of that character.'**
42. Ante, § 438, note 93. 43. Rawle, Covenants, § 114;
42a. Gin V. Ferrin, 71 N. H. Copeland v. McAdory, ICTO Ala.
421, 52 Atl. 558; Johnston v. 553, 13 So. 545; MitcheU v. War-
Markle Paper Co., 153 Pa. 195, ner, 5 Conn. 497; Bostwick v.
25 Atl. 560, 885; Johnson v. Williams, 36 111. 65, 85 Am. Dec.
Elmen, 94 Tex. 168, 52 L. R. A. 385; Kramer v. Carter, 136 Mass.
162, 86 Am. St. Rep. 845, 59 S. 504.
W. 253. 44. Rawle, Covenants, §§ 110-
42b. Ante, § 438, note 92. 114.
§ 45o] Transfer Inter Vivos. 1693
As in tile case of a covenant against incum-
Iji-ances/-"" the covenantee's knowledge of the defect
in the title of the covenantor at the time of the making
of the covenant of warranty is ordinarily no de-
fense to an action thereon,'**^ Occasionally, however,
his knowledge of the defect has, in the particular case,
and in view of the character of the defect, been re-
garded as calling for a construction of the covenant as
not covering the defect.^'
Construction of covenant. A covenant for
quiet enjoyment or of warranty, like other covenants,
is to be construed with reference to the interest in the
land which the instrument purports to convey. So if
it purports to convey an estate less than a fee simple,*^
or an undivided interest only,*'' the presence of the
covenant does not impose a personal liability by reason
of a lack of title in excess of such interest, or operate
to enlarge the interest conveyed. On a somewhat
similar theory, if the conveyance is in terms of the
property as being subject to a mortgage, an "equity of
redemption," as it is frequently termed, the covenant
is construed accordingly, and the mortgage is not re--
garded as within the scope of the covenant. ^^
45. Ante, § 452, note 38. Snell v. Young, 3 Ired. L. (25
46. Mackintosh v. Stewart, 181 N. Car.) 379; Rawle, Covenants,
Ala. 328, 61 So. 956; Flynn v. § 298.
White Breast Coal etc. Co., 72 49. Emeric v. Alvarado, 90
Iowa, 738, 32 N. W. 471; Cornelius Cal. 444, 27 Pac. 356; Coster v.
V. Kinnard, 157 Ky. 50, 162 S. Monroe Mfg. Co., 2 N. J. Eq.
W. 524; Downs v. Nally, 161 Ky. 467; Lamb v. Wakefield, 1 Sawy.
432, 170 S. W. 1193; Contra. (U. S.) 251.
Janes v. Jenkins, 34 Md. 1, 6 50. Miller v. De Graffenried,
Am. Rep. 300. 43 Colo. 306, 15 Ann. Cas. 981, 95
47. See McAndrews & Forbes Pac. 941; Drury v. Holdon, 121
Co. V. Camden Nat. Bk., 87 N. 111. 130; Freeman v. Baxter, 55
J. L. 231, 94 Atl. 627; Hymes v. Me. 508; Hopper v. Smyser, 90
Estey, 166 N. Y. 505, 15 Am. St. Md. 363, 45 Atl. 206; Brown v.
Rep. 421, 22 N. E. 1087 (high- South Boston Sav. Bk., 148 Mass,
way). 300, 19 N. E. 382; Shafer v. Winc-
48. Adams v. Ross, 30 N. J. man, 47 Mich. 63, 10 N. W. 104.
L. 505, 82 Am. Dec. 237. See
R. P.— 32.
1694
Keal. Property.
[§ 453
In a number of cases, when the conveyance was in
terms merely of the grantor's right title or interest, the
covenant has been construed as referring merely to such
right, title or interest, so as to render the covenant
almost if not entirely nugatory for the purpose of
protecting the grantee.^^ The mere fact, how^ever, that
a conveyance, which in terms conveys the land, recites
an intention to dispose of all the grantor's right title
and interest, would not ordinarily be given such an
effect.^2
The decisions are not entirely in accord as to
whether outstanding leases,^' railroad rights of way,^-^
51. Reynolds v. Shaver, 59
Ark. 299, 43 Am. St. Rep. 36, 27
S. W. 78; McNear v. McComber,
18 Iowa, 12; BaUard v. Child, 46
Me. 152; White & Corhitt v.
Stewart, 131 Ga. 460, 62 S. E.
590; Combs v. Combs, 130 Ky.
827, 114 S. W. 334; Sweet
V. Brown, 12 Mete. (Mass.)
175, 45 Am. Dec. 243; Coble
V. Barringer, 171 N. Car. 445,
88 S. E. 518; HuU v. HuH, 35 W.
Va. 155, 13 S. E. 49, 29 Am. St.
Rep. 800. But see Bayley v. McCoy,
8 Oreg. 259; Peck v. Hensley,
20 Tex. 67.
52. Locke v. White, 89 Ind,
492; Hubbard v. Apthorp, 3 Cush.
(Mass.) 419; Steiner v. Baugh-
man, 12 Pa. 106; Mills v. Catlin,
22 Vt. 98.
53. That an outstanding lease
involves a breach, see Bass v.
Starnes, 108 Ark. 357, 158 S. W.
136; Van Wagner v. Van Nos-
trand, 19 Iowa, 422; Burchfield
V. Brinkman, 92 Kan. 377, 140
Pac. 894; Beutel v. American Ma-
chine Co., 144 Ky. 57, 137 S. W.
799; Fortescue v. Columbia Real
Estate Co., 75 N. J. L. 272, 67
Atl. 1024; Rickert v. Snyder, 9
Wend. (N. Y.) 415; Hampton
Park Terrace v. Sottile, 102 S. C.
372, 86 S. E. 1066 (although
known to the covenantee).
That an outstanding lease docs
not involve a breach, see Kellum
v Berkshire Life Ins. Co., 101
Ind. 455; Hammond v. Jones, 41
Ind. App. 32, 83 N. E. 257;
Knerb v. Beardsley, 139 Mo. App.
565, 123 S. W. 545 (grantee con-
senting to take lessee as his
tenant); Baldwin v. Smith (Tex.
Civ. App.), 119 S. W. Ill (if
known to covenantee). See Si-
mons V. Diamond Match Co., 159
Mich. 241, 123 N. W. 1132.
54. That a railway right of
way involves a breach, see Flynn
V. White Breast Coal etc. Co., 72
Iowa. 738, 32 N. W. 471; Schwartz
V. Black, 131 Tenn. 360, 174 S.
W. 1146 (nominal damages).
That a railway right of way
does not involve a breach, see
Van Ness v. Royal Phosphate Co.,
60 Fla. 284, 30 L. R. A. N. S.
833, Ann. Cas. 1912C, 647, 53 So.
381; Brown v. Young, 69 Iowa.
625, 29 N. W. 941; Goodman v.
§ 453:]
Transfer Inter Vivos.
1695
and highways,^^ are to be regarded as witliiu a covenant
of warrant3% a lack of accord which also exists, as we
have seen, in connection witl? a covenant against in-
cumbrances.^®
A taking of the land, or of an easement therein,
under the righf of eminent domain, does not involve
a breach of the covenant of waj-ranty or for quiet
enjoyment.''^
A covenant for quiet enjoyment, when accompany-
ing a lease for years, is, as before stated, broken only if
the interference with the enjoyment is by the lessor or
by a third person under title paramount.^* So when
such a covenant, or a covenant of warranty, occurs in
a conveyance in fee simple, there can be no recovery
unless the disturbance of the grantee's enjoyment is
by the grantor^^ or by a third person under lawful
claim of title.^*^ It is not broken by a tortious disturb-
ance by a stranger, this being something beyond the
Heilig, 157 N. C. 6, 36 L. R. A.
(N. S.) 1004, 72 S. E. 866; Col-
clough V. Briggs, 99 S. C. 181,
83 S. E. 35; Milwaukee etc. R.
Co. V. Strange, 63 Wis. 178, 23 N.
W. 432.
55. That a highway involves
a breach, see Copeland v. Mc-
Adory, 100 Ala. 553, 13 So. 545
(though known to covenantee);
Louisville Public Warehouse Co.
V. James, 21 Ky. L. Rep. 1726,
56 S. W. 19 (sevible); Haynes
V. Young, 36 Me. 557.
That a highway does not in-
volve a breach, see Craus v.
Durdall, 154 Iowa, 468, 134 N. W.
1086; Hymes v. Estey, 116 N.
Y. 505, 15 Am. St. Rep. 421, 22
N. E. 108 (If actual or construc-
tive notice to covenantee) ; Butte
V. Riffe, 78 Ky. 352 (ditto); Ake
v. Mason, 101 Pa. 17 (ditto). A
like view has been taken of a
public levee. Ireton v. Thomas,
84 Kan. 70, 113 Pac. 306, and a
public wharf, Burke v. Trabue's
ExT, 137 Ky. 580, 126 S. W. 125.
56. Ante, § 452, notes 20-23, 25.
57. Rawle, Covenants, § 129;
Frost V. Earnest, 4 Whart. (Pa.)
86; Brimmer v. City of Boston,
102 Mass. 19; Cooper v. Blood-
good, 32 N. J. Eq. 209; Steven-
son V. Loehr, 57 111. 509, 11 Am,
Rep. 36; Folts v. Huntley, 7
Wend. (N. Y.) 210.
58. Ante, § 49 (b).
59. See post, this section,
notes 63-67.
60. Davis v. Smith, 36 111. 35,
85 Am. Dec. 385; Bostwick v.
Williams, 36 111.. 35, 85 Am. Dec.
385; Burrus v. Wilkinson, 31
Miss. 537; Kent v. Welch, 7
Johns. (N. Y.) 258, 5 Am. Dec.
266; Johnson v. Nyce's Ex'rs, 17
Ohio 66, 49 Am. Dec. 444; Mc-
1696 Real Peoperty. [§ 453
control of the grantor, and for which the grantee has
his remedy against the wrongdoer.**^
The covenant for quiet enjoyment may be general
in terms, to the effect that the grantee shall quietly enjoy
the premises, or it may be expressly restricted to their
enjoyment free from interference by reason of the
acts of the grantor and of those persons who claim
through or under him, it being then referred to as a
'' qualified"" or "limited" covenant.^- So the covenant
of warranty may extend to the acts and claims of all
persons whomsoever (general warranty), or it may
extend merely to the acts and claims of the grantor
and those claiming under him (special warranty). The
following remarks are based upon the assumption that,
in the particular case, the covenant is general in form.
Breach by act of covenantor. The question of
the character of the act which, when committed by the
covenantor himself, will constitute a breach of the
covenant for quiet enjoyment, is presumably to be
determined with reference to the same considerations
as control in the case of a similar covenant in a lease,
which latter has frequently been the subject of de-
cision.^^^ While it has been said that the lessor's act
must, for this purpose, amount to an eviction,^^ and
Grew V. Harmon, 164 Pa. St. 115, the acts of a certain person ap-
30 Atl. 265, 268; Knapp v. Town plies to his tortious, as weU as
of Marlboro, 34 Vt. 235. his rightful, acts. Rawle, Cove-
61. Hayes v. Bickerstaff, nants, § 128; Foster v. Mapes,
Vaughan, 118; Noonan v. Lee, 2 Cro. Eliz. 212.
Black (U. S.) 499; Chestnut v. 62. As to the construction of
Tyson, 105 Ala. 149, 53 Am. St. such words of qualification, see 1
Rep. 101, 16 So. 723; Hoppes v. Tiffany, Landlord & Tenant, p.
Cheek, 21 Ark. 585; Playter v. 523; Rawle, Covenants, ch. 6.
Cunningham, 21 Cal. 229; Barry 63. See 1 Tiffany, Landlord &
V. Guild, 126 111. 439, 2 L. R. A. Tenant, § 79d.
334, 18 N. E. 759; Gardner v. 64. Rawle, Covenants, § 128;
Keteltas, 3 Hill (N. Y.) 330; Sedgwick v. Hollenback, 7 Johns.
Poley V. Lacert, 35 Oreg. 166, 58 (N. Y.) 376; Akerly v. Vilas, 23
Pac. 37. But a covenant against Wis. 207, 99 Am. Dec. 165.
§ 453] Transfer Inter Vivos. 1697
that his wrongful entry on the premises without claim-
ing title, or without doing such acts as amount to
an assertion of title, is insufiScient, because constituting
merely a trespass not amounting to an eviction,*^ ^ the
trend of the later authorities is apparently to the effect
that any intentional interference by the covenantor with
the covenantee's enjoyment and use of the premises
constitutes a breach of the covenant, regardless of
whether it results in an eviction.*^*^
It has occasionally been asserted or assumed that
a grantor may be liable, on his covenant of warranty
in a conveyance by him in fee simple, by reason of
the fact that he makes a subsequent conveyance to
another, who takes without notice and records his con-
veyance before the prior conveyance is recorded, with
the result that nothing passes by such prior convey-
ance.^' This view is to be regarded as based, it would
seem, on the theory that the entry by the grantee in
the second conveyance is to be considered as in be-
half of or by direction of the common grantor, who is
thus in the position of one who, after conveying with
warranty, himself evicts his covenantee.
Breach by reason of paramount claim. In order
that there be a breach of the covenant of warranty or
of that for quiet enjoyment by reason of a paramount
65. Crosse v. Young, 2 Show. (Pa.) 22 Contra, Wade v. Com-
425; Avery v. Dougherty, 102 Ind. stock, 11 Ohio St. 71 See, also,
443, 52 Am. Rep. 680, 2 N. E. as opposed to the view of these
123. See 1 Tiffany, Landlord & cases, dictum, of Sharswood, J., in
Ten., p. 528. Scott v. Scott, 70 Pa. 244, and
66. 1 Tiffany, Landlord & Ten. Rawle, Covenants, § 128.
p. 529. The covenantor has even been
67. Madden v. Caldwell Land held liable on account of an en-
Co., 16 Idaho, 59, 21 L. R. A. N. try upon the covenantee made
e. 332, 100 Pac. 358; Curtis v. by the grantee in a prior con-
Deering, 12 Me. 499; Williamson veyance executed by the cove-
V. Williamson, 71 Me. 442; Eaton nantor, though by reason of the
V. Hopkins, 71 Fla. 615, 71 So. prior record of the later con-
922; Jones v. Warner, 81 111. veyance the entry was wrongful.
343; Lukens v. Nicholson, 4 Phila. Thomas v. West & Wheeler, C4
1698
Real Propeety.
[§ 453
title in another, an eviction of the covenantee by such
other is ordinarily necessary .^^ Consequently the mere
existence of a lien on the land, such as a mortgage,
involves no breach of the covenant,*^^ though a breach
may occur as a result of the enforcement of the lien,
followed by an eviction by the person to whom the
ownership of the land passes as a result of such en-
forcement."^" And the existence of an inchoate dower
right does not involve a breach, "^^ though a breach may
result from the enforcement of a right of dower
Wash. 344, 116 Pac. 1076, disa/p-
proving Lamb v. Willis, 125 App.
Div. 183, 109 N. Y. Supp. 75.
68. Rawle, Covenants, § 131;
Gulf Coal & Coke Co. v. Mus-
grove, 195 Ala. 219, 70 So. 179;
McCormick v. Marcy, 165 Cal.
386, 132 Pac. 449; Brooks v.
Winkles, 139 Ga. 732, 78 S. E.
129; Grant v. McArthur's Ex'r,
153 Ky. 356, 155 S. W. 732;
Boulden v. Wood, 96 Md. 332, 53
Atl. 911; Coopwood v. McCand-
less, 99 Miss. 364, 54 So. 1007;
Aiple-Hemmelman Real Estate Co.
V. Spelbrink, 211 Mo. 671, 111 S.
W. 480; Troxell v. Johnson, 52
Neb. 46, 71 N. W. 968; Smith v.
Wahl, 88 N. J. 623, 97 Atl. 261;
Scriver v. Smith, 100 N. Y. 471,
53 Am. Rep. 224, 3 N. E. 675;
Werner v. Wheeler, 142 N. Y.
App. Div. 358, 127 N. Y. Supp.
158; Richmond Cedar Works v.
J. L. Roper Lumber Co., 161 N.
C. 603, 77 S. E. 770; Rancho
Bonito Land & Live Stock Co. v.
North. 92 Tex. 72, 45 S. W. 994;
Lennig v. Harrisonburg Land &
Improvement Co., 107 Va. 458,
59 S. E. 400; McKinley Land Co.
V. Maynor, 76 W. Va. 156, 85 S. E.
79; Durbin v. Shenners, 133 Wis,
134, 113 N. W. 421.
69. King V. Killbride, 58 Conn.
109; Clark v. Lineberger, 44 Ind.
223; Kimberlin v. Templeton, 55
Ind. App. 155, 102 N. E. 160;
Foster v. Woodward, 141 Mass.
160, 6 N. E. 853; Koenig v.
Branson, 73 Mo. 634; Marbury
V. Thornton, 82 Va. 702, 1 S. E.
909; Leddy v. Enos, 6 Wash. 247,
33 Pac. 508, 34 Pac. 665; Durbin
V. Shenners, 133 Wis. 134, 131
N. W. 421.
70. Collier v. Cowger, 52 Ark.
322, 6 L. R. A. 107, 12 S. W.
702; King v. Kilbride, 58 Conn.
109; Clark v. Lineberger, 44 Ind.
223; Congregation of Sisters of
Perpetual Adoration v. Jane, 110
Miss. 612, 70 So. 818; Cheney v.
Straube, 35 Neb. 521, 53 N. W.
479; Stewart v. Drake, 9 N. J.
L. 139; Jenks v. Quinn, 137 N.
Y. 223, 33 N. E. 376; Smith v.
Dixon, 27 Ohio St. 471; Williams
V. O'Donnell, 225 Pa. 321, 74 Atl.
205; Harr v. Shaffer, 52 W. Va.
207, 43 S. E. 89; Jackson v.
McAuley, 13 Wash. 298, 43 Pac.
41.
71. Tierney v. Whiting, 2 Colo.
620; Bostwick v. Williams, 36
HI. 65, 85 Am. Dec. 385; Aiple-
Hemmelman Real Estate Co. v.
§ 453] Transfer Inter Vivos. 1699
consummate.'- There are, however, some exceptions
to the requirement of an eviction. Of these the most
important is the case of a covenantee who is unable,
upon receiving the conversance, to obtain possession of
the land, owing to the fact that another person, having
a superior title thereto, is in possession, it being
considered unnecessary, in such a case, that the cov-
enantee should be compelled to take forcible possession
in order that he himself may be ejected, or to bring
a suit for the land, which would necessarily result ad-
versely to him,'^ and a like doctrine has been applied
when the paramount or\Tier, though not in possession
at the time of the conveyance, took possession before
the covenantee entered and in that wav excluded the
latter.*^^
In the case of absolutely unoccupied land, the
mere assertion of a paramount title, without the
taking of actual possession by the holder thereof,
might be regarded as so indicative of an intention to
exclude the covenantee as to involve a breach of the
covenant.'^ Another case of a breach of the covenant
Spelbrink, 211 Mo. 671, 111 S. N. W. 952; Shattuck v. Lamb,
W. 480. 65 N. Y. 499, 22 Am. Rep. 656;
72. Bostwick v. Williams, 36 Hunt v. Hay, 214 N Y.. 578. 108
ni. 65, 85 Am. Dec. 385; Davis N. E. 851; Fishel v. Browning,
V. Logan, 5 B. Mon. (Ky.) 341; 145 N. C. 71, 58 S. E. 759; Mc-
Maguire v. Riggin, 44 Mo. 512; Hargue v. Calchina, 78 Ore. 326,
McAlpin V. WoodruftM Disn. 339, 12 153 Pac. 99; New York & Cleve-
Ohio Dec. 658; Lewis v. Lewis, land Gas Co. v. Graham, 226 Pa.
5 Rich. L. (S. C.) 12; Welsh v. 348, 75 Atl. 657; Lennig v. Har-
Kibler, 5 S. C. 405. risonburg Land & Improvement
73. Cloake v. Hooper, Freem. Co., 107 Va. 458, 59 S. E. 400;
122; Peters v. Bowman, 98 U. McConaughey v. Bennett's Ex'rs,
S. 56, 25 L. Ed. 91; Banks v. 50 W. Va. 172, 40 S. E. 540.
Whitehead, 7 Ala. 83; Moore v. 74. St. .lohn v. Palmer, 5 Hill
Vail, 17 111. 185; Cummins v. (N. Y.) 599; Winslow v. McCall,
Kennedy, 3 Litt. (Ky.) 118, 14 ^2 Barb. (N. Y.) 541; Hodges v.
Am. Dec. 45; Witty v. Hightower. Latham, 98 N. C. 239, 2 Am. St.
12 Smedes & M. (Miss.) 478: Rep. 333, 3 S. E. 495.
Murphy v. Price, 48 Mo. 247; 75. See Rawle, Covenants, §
Heyn v. Ohman, 42 Neb. 693, 60 140; Jennings v. Kiernan, 35 Ore.
1700
Eeal. Property.
[§ 453
without an eviction may occur in the case of an ease-
ment outstanding in a third person.'*^ The exercise
of such an easement,'^^ and occasionally, x>€rhaps, the
mere assertion of the right to exercise it,'^^ has been
regarded as involving a breach of the covenant. In
a few cases, where the conveyance of land was regarded,
by reason of the use of the expression ''appurte-
nances," or otherwise, as intended to include an ease-
ment in the adjoining land, a failure of title to such
easement has been held to involve a breach of the
covenant."^
In one state it has been said that an eviction is
unnecessarv if the covenantor is insolvent or a non
349, 55 Pac. 443, 56 Pac. 72. In Sel-
don V. Dudley E. Jones Co., 74
Ark. 348, 85 S. W. 778, it is even
asserted that in the case of wild
a,nd unimproved land, the mere
existence of a paramount title in-
volves a breach.
76. Occasionally it has been
decided, apparently, that the
existence of an easement does
not involve a breach of the
covenant. Diseker v. Eau Claire
Land & Imp. Co., 86 S. C.
281, 68 S. E. 529; Cummings v.
Hamrick, 74 W. Va. 406, 82 S. E.
44.
77. Flynn v. White Breast Coal
& Min. Co., 72 Iowa, 738, 32
N. W. 471; Lamb v. Danforth, 59
Me. 324, 8 Am. Rep. 426; Harring-
ton V. Bean, 89 Me. 470, 36 Atl.
986; Smith v. Richards, 155
Mass. 79, 28 N. E. 1132; Scriver
V. Smith, 100 N. Y. 471, 53 Am.
Rep. 224, 3 N. E. 675; Rea v.
Minkler, 5 Lans. (N. Y.) 196:
Wilson V. Cochran, 46 Pa. 229.
The case of Mitchell v. Warner,
5 Conn. 497, in which it was
decided that the exercise of a
right to divert water from a
stream on the land did not in-
volve a breach of the covenant,
has been criticized. See Wilson
V. Cochran, 46 Pa. 233; Rawle,
Covenants, § 152 note.
78. Helton v. Asher, 135 Ky.
751, 123 S. W. 285; Kramer v.
Carter, 136 Mass. 504.
The successful assertion of the
easement by suit has been re-
garded as Involving a breach
of the covenant. Ailing v. Bur-
lock, 46 Conn. 504; Ensign v.
Colt, 75 Conn. 111. 52 Atl. 829.
946; Butt v. Riffe, 78 Ky. 352:
Hymes v. Estey, 116 N. Y. 501,
15 Am. St. Rep. 421, 22 N. E.
1087.
79. Downs v. Nally, 161 Ky.
432, 170 S. W. 1193; Richstein v.
Welch, 197 Mass. 224, 83 N. E.
417; Scheible v. Slagle. 89 Ind.
323; Bowling v. Burton, 101 N.
C. 176, 2 L. R. A. 285, 7 S. E.
701; Peters v. Grubb, 21 Pa.
455; Adams v. Conover, 87 N. Y.
422.
§ 453:]
Transfer Inter Vivos.
1701
resident^*^ or is about to remove his property from the
state. ^^ An eviction is obviously not necessary in
any state in which the covenant of warranty is re-
garded as including that against incumbrances. ^^
To constitute an actual eviction under paramount
title the dispossession need not be under legal proc-
ess,*^ nor need there be any judicial decision in favor
of the holder of the paramount title, ^^ it being suf-
ficient that the claim is actually asserted,*^ that it is
80. Walker v. Robinson, 163
Ky. 618, 174 S. VW. 503.
81. , Knight's Adm'r v. Schroad-
er, 148 Ky. 610. 147 S. W. 378.
82. Moore v. Lanham. 3 Hill
(S. C.) 304; Jeter V. Glenn, 9 Rich.
L. (S. C.) 374; Van Wagner v. Van
Nostrand, 19 Iowa, 422; Bullard
V. Hopkins, 128 Iowa, 703. 105
N. W. 197 (semble) ; Taylor v.
Allen, 60 Pa. Super Ct. 503.
83. Rawle, Covenants. § 132:
Foster v. Pierson, 4 Term R. 617:
McGary v. Hastings, 39 Cal. 360,
2 Am. Rep 456; Green v. Irv-
ing, 54 Miss. 450. 28 Am. Rep.
360; Greenvault v. Davis, 4 Hill
(N. Y.) 645; Hodges v. Latham,
98 N. C. 239, 2 Am. St. Rep.
333, 3 S. E. 495.
84. Dugger v. Oglesby, 99 111.
405; Mason v. Cooksey, 51 Ind.
519; Hamilton v. Cutts, 4 Mass.
350, 3 Am. Dec. 222.
85. There can be no eviction
under paramount title unless
such title is actually asserted,
and consequently, at least In the
ordinary case, no breach of the
covenant occurs if the covenantee
yields possession to the holder of
a paramount title, who has not
asserted his title. Hester v.
Hunnicutt, 104 Ala. 282, 16 So.
162; Moore v. Vail, 17 111. 185;
Axtel V. Chase, 83 Ind. 546;
Green v. Irving, 54 Miss. 450, 28
Am. Rep. 360; Ogden v. Ball,
40 Minn. 94. 41 N. W. 453; Mor-
gan V. Hannibal R. Co., 63 Mo.
129; Githens v. Barnhlll,— (Mo.
App.)— 184 S. W. 145; McGrew v.
Harmon, 164 Pa. St. 115, 30 Atl.
265, 268; Leddy v. Enos, 6 Wash.
247, 33 Pac. 508, 34 Pac. 665.
To the rule requiring an as-
sertion of the adverse claim an
exception has been recognized
when the paramount title was in
the United States. Dillahunty v.
Little Rock & Ft. S. Ry. Co., 59
Ark. 629, 27 S. W. 1002, 28 S.
W. 657; Crawford County Bank
V. Baker, 95 Ark. 438, 130 S. W.
556; McGary v. Hastings, 39 Cal.
367, 2 Am. Rep. 456; Harrington
V. Clark, 56 Kan. 644, 44 Pac.
624; Pevey v. Jones, 71 Miss. 627,
42 Am. St. Rep. 486, 16 So.
252.
The cancellation of an entry
or patent by the land office has
been regarded as a sufficient as-
sertion of the government title.
Butler V. Watts, 13 La. Ann. 390;
Efta V. Swanson, 115 Minn. 373,
132 N. W. 335, Giddings v. Hot-
ter, 19 Mont. 263, 48 Pac. 8;
Jennings v. Kiernan, 35 Ore. 349.
55 Pac. 443, 56 Pac. 72 (suit
1702
Real, Peoperty.
[§ 453
valid,^^ and that the covenantee yields thereto.^"^
A constructive eviction, as distin^ished from an
actual one, involving a breach of the covenant, occurs
when, upon the assertion of a paramount title, the
covenantee, instead of yielding possession to the hos-
tile claimant, buys in such title, or takes a lease from
the holder thereof.*^ The covenantee is, however, under
no obligation to the covenantor thus to arrive at a
settlement with the paramount owner.^'^ Somewhat
similar to the case of a purchase of the paramount
to annul patent). And dealing
with the land as state land has
been regarded as sufficient asser-
tion of a paramount title in the
state. Green v. Irving, 54 Miss.
450; Brown v. Allen, 57 Hun
(N. Y.) 219, 10 N. Y. Supp. 714.
86. See Rawle, Covenants §
136, and cases cited ante, this
section, note 60.
87. Gunter v. Williams, 40 Ala.
561; Clements v. Collins, 59 Ga.
124; Axtel v. Chase, 83 Ind.
546; Hamilton v. Cutts, 4 Mass.
350, 3 Am. Dec. 222; Kramer v.
Carter, 136 Mass. 504; AUis v.
Nininger, 25 Minn. 525; Green
V. Irving, 54 Miss. 450, 28 Am.
Rep. 337; Lambert v. Estes, 99
Mo. 604, 13 S. W. 284; Cheney
V. Straube, 35 Neb. 521, 53 N. W.
479; Cornish v. Capron, 136 N.
Y. 232, 32 N. E. 773; Jenks v.
Quinn, 137 N. Y. 223, 33 N. E.
376; Brown v. Corson, 16 Ore.
388, 19 Pac. 66, 21 Pac. 47;
Wilson V. Cochran, 46 Pa. St.
229; Hebert v. Handy, 29 R. I.
543, 72 Atl. 1102.
88. Dillahunty v. Little Rock
& Ft. S. Ry. Co., 59 Ark. 699, 27
S. W. 1002, 28 S. W. 657; McGary
V. Hastings, 39 Cal. 360, 2 Am.
Rep. 456; Hayden v. Patter.son,
39 Colo. 15, 88 Pac. 437; Joyner
V. Smith, 132 Ga. 779, 65 S. E.
68; McConnell v. Downs, 48 111.
271; Beasley v. Phillips, 20 Ind.
App. 182; Smith v. Keeley, 146
Iowa, 660, 125 N. W. 669; Sprague
V. Baker, 17 Mass. 590; Brooks
V. Mohl, 104 Minn. 404, 116 N.
W. 931; Loomis v. Bedel, 11 N.
H. 74; Hodges v. Latham, 98
N. C. 239, 2 Am. St. Rep. 333, 3
S. E. 495; Pee Dee Naval Stores
Co. V. Hamer, 92 S. C. 423, 75
S. E. 695; Morrow v. Baird, 114
Tenn. 552, 86 S. W. 1079; Clark
V. Mumford, 62 Tex. 531; Morgan
V. Haley, 107 Va. 331, 13 L. R. A.
(N. S.) 732, 122 Am. St. Rep.
846, 13 Ann. Cas. 204, 58 S. E.
564; See Tucker v. Cooney, 34
Hun. (N. Y.) 227, 100 N. Y.
719; Stewart v. Drake, 9 N. J.
L. 139. In one or two states a .
different view has been taken.
Huff V. Cumberland Valley Land
Co. 17 Ky. L. Rep. 213, 30 S. W.
660; Dyer v. Britton, 53 Miss.
270. Compare Swinney v. Cock-
rell, 86 Miss. 318, 38 So. 353.
89. Brawley v. Copelin. 106
Ark. 256, 153 S. W. 101; Miller v.
Halsey, 14 N. J. L. 48; Olmstead
V. Rawson, 188 N. Y. 517, 81 N.
E. 456; Parker v. Crainton, 143
§ 453r]
Transfer Inter Vivos.
title by the covenantee is that of the extinguishment
by him of a paramount lien,^^ or the purchase by him
of the property upon a sale under such lien.^^
Occasionally a mere adjudication that another's
title is superior to that of the covenantee has been
regarded as involving a breach of the covenant of
warranty, without reference to whether the covenantee
still retains the possession.^^ Such a view appears to
involve, to some extent, a departure from the require-
ment of eviction in order to effect a breach of the
covenant,^^ and might well, perhaps, be confined to
cases in which the land, at the time of the adjudication,
is vacant and unoccupied.^^ Occasionally there has
been considered to be a breach of the covenant by
reason of an outstanding legal title when the cove-
Ga. 421, 85 S. E. 338; Rawle.
Covenants §, 181.
90. Bemis v. Smith, 10 Mete.
(Mass.) 194; Estabrook v. Smith,
6 Gray (Mass.) 572, 66 Am. Dec.
443; Jackson v. Hanna, 8 Jones
Law, (53 N. C.) 188; Welsh v.
Kibler, 5 S. C. 405; Kenney v.
Norton, 10 Heisk. (Tenn.) 384;
McCrillis v. Thomas 110 Mo. App.
699, 85 S. W. 673.
91. Talbott V. Donaldson, 71
Kan. 483, 80 Pac. 981; Whitney
V. Dinsmore, 6 Cush. (Mass.)
124; Hill V. Bacon, 110 Mass. 387;
Cowdrey v. Colt, 44 N. Y. 382, 4
Am. Rep. 690; Brown v. Dins-
more. 12 Pa. 372.
It has been held that the cove-
nantee may pay the taxes on the
property when due, and assert a
breach of the covenant. Swinney
V. Cockrell. 86 Miss. 318, 38 So.
353. But this is open to question
so long as there has been no
claim made against the property
on account of the taxes. Leddy
V. Enos, 6 Wash. 247, 33 Pac
508, 34 Pac. 665.
92. Cox V. Bradford, 101 Ark.
302, 142 S. W. 172; Hayden v.
Patterson, 39 Colo. 15, 88 Pac.
437; Wilber v. Buchanan, 85 Ind.
42; Wright v. Nipple, 92 Ind. 310;
Sarrls v. Beckman, 55 Ind. App.
638, 104 N. E. 598; Waggener v.
Howsley's Adm'r, 64 Ky. 113, 175
S. W. 4; Hubbard v. Stanaford,
30 Ky. L. Rep. 1044, 100 S. W.
232; Boyd v. Bartlett, 36 Vt. 9;
Black V. Barto, 65 Wash. 502,
Ann. Cas. 1913B, 846, 118 Pac.
Pac. 623.
93. That a mere adjudication
is not sufficient, see Wagner v.
Finnegan, 54 Minn. 251, 55 N.
W. 1129; Hoy v. Taliaferro, 8
Sm. & M. (Miss.) 727; Real v.
Hollister, 20 Neb. 112, 29 N. W.
189; Kerr v. Shaw, 13 Johns. (N.
Y.) 2."?6; Ravenel v. Ingram, 131
N. C. 549. 42 S. E. 967; Paul v.
Witman, 3 Watts & S. (Pa.) 407.
94. See Wagner v. Finnegan,
54 Minn. 25. 55 N. W. 1129; St.
.John v. Palmer, 5 Hill (N. Y.)
1704
Keal. Pkoperty.
[§ 453
iiantee has obtained a decree in equity cancelling such
title in his favor.^^
Proof of paramount title. One alleging a
breach of the covenant by reason of an eviction or as-
sertion of claim by a third person has the burden of
showing that such person had a paramount title. ^"
But ''it has come to be well settled in most if not all
of the United States that, in general, upon suit being
brought upon a paramount claim against one who is
entitled to the benefit of any of the covenants for title,
and more particularly it would seem of the covenant of
warranty, he can, by giving proper notice of the action
to the party bound by the covenants and requiring him
to defend it, relieve himself from the burden of being
obliged afterward to prove, in the action on the cove-
nants, the validity of the title of the adverse claim-
ant, "^"^ and occasionally a judgment thus recognizing
599, and ante, this section, note
75.
95. Smith v. Keeley, 146 Iowa,
660, 136 N. W. 669; Mackenzie v.
Clement,— (Mo. App)— 129 S. W.
730; Lane v. Fury, 31 Ohio St.
574.
96. Copeland v. McAdory, 100
Ala. 553, 13 So. 545; Tuggle v.
Hamilton, 100 Ga. 292, 27 S. E.
987; Moore v. Vail, 17 111. 190;
Crance v. Collenbaugh, 47 Ind.
256; George v. Putney, 4 Gush.
(Mass.) 355, 50 Am. Dec. 788;
Lambert v. Estes, 99 Mo. 604, 13
S. W. 284; Snyder v. Jennings,
15 Neb. 372, 19 N. W. 501;
Stone V. Hooker, 9 Cow. (N.
Y.) 157; Cobb v. Klosterman, 58
Ore. 211, 114 Pac. 96; Callis v.
Cogbill, 9 Lea (Tenn.) 137; West-
rope V. Chambers, 51 Tex. 178;
McKillop V. Post, 82 Vt. 403, 74
Atl. 78.
The burden of showing the
validity of the asserted para-
mount title Is upon the cove-
nantee who yields thereto. Ever-
sole V. Early, 80 Iowa, 601, 44
N. W. 897; Rawle Covenants §,
136; Tiffany, Landlord & Tenant
p. 1299.
97. Rawle, Covenants § 117.
See Carpenter v. Carpenter, 88
Ark. 169, 113 S. W. 1032; Mc-
Cormick v. Marcy, 165 Cal. 386,
132 Pac. 449; Taylor v. Allen, 131
Ga. 416, 62 S. E. 291; Harding
V. Sucher, 261 111. 284, 103 N. E.
1019; Olmstead v. Rawson, 188
N. Y. 517, 81 N. E. 456;Stone-
braker v. Ault,— Okla.— 158 Pac.
570; Samson v. Zimmerman, 73
Kan. 654, 85 Pac. 757; Elliott v.
Saufley, 89 Ky. 52, 11 S. W. 200;
Parnsworth v. Kimball, 112 Me.
238, 91 Atl. 954; Boyle v. Ed-
wards, 114 Mass. 375; Cummings
V. Harrison, 57 Miss. 275; Sachse
V. Loeb, 45 Tex. Civ. App. 536,
§ 453:]
Transfer Inter Vwos.
1705
the supremacy of another's title has been regarded as
conclusive upon the covenantor when rendered in a
suit brought not by such other against the covenantee,
but by the covenantee against such other, the covenan-
tor being notified to appear and prosecute the suit.^^
The notice need not, it seems, be in writing.^^ It has
sometimes been regarded as necessary that the notice
include or be accompanied by a request that the
covenantor defend the action,^ but such a requirement
has not always been recognized.^ Obviously the notice
must be given with sufficient promptitude to enable the
covenantor to prepare his defense.^ If no notice of the
action is given to the covenantor, a judgment therein
against him is not even prhna facie evidence of the
paramount character of the title of the party in favor
of whom it was rendered,^ but apart from any question
101 S. W. 450; Farwell v. Bean,
82 Vt. 172, 72 Atl. 731. So in
the case of notice to the cove-
nantor's heir, afterwards sued on
the covenant. Farnsworth v.
Kimball, 112 Me. 238, 91 Atl. 954.
98. Gragg v. Richardson, 25
Ga. 570, 71 Am. Dec. 190; Sarrls
V. Beckman, 55 Ind. App. 638, 104
N. E. 598; Hubbard v. Stanaford,
30 Ky. L. Rep. 1044, 100 S. W.
232; Dalton v. Bowker, 8 Nev.
191; White v. wniiams, 13 Tex.
258; Pitkin v. Leavitt, 13 Vt.
379.
99. Sarrls v. Beckman, 55 Ind.
App. 638. 104 N. E. 598; Rich-
stein V Welch, 197 Mass. 224, 83
N. E. 417; Cummings v. Harrison.
57 Miss. 275; Walton v. Camp-
bell, 51 Neb. 788, 71 N. W. 737;
Miner v. Clark, 15 Wend. (N. Y.)
426. Contra, Mason v. Kellogg,
38 Mich. 132, approved in Rawle.
Covenants, § 119.
1. Pence v. Rhonemus, 58 Ind.
App. 268, 108 N. E. 129; Wheelock
V. Overshiner, 110 Mo. 100, 19 S.
W. 640; Paul v. Witman, 3 Watts
& S. (Pa.) 409; Clark v. Mum-
ford, 62 Tex. 532; Anderson v.
Bigelow, 16 Wash. 198, 47 Pac.
426. That the convenautor must
be "tendered the opportunity to
take upon himself the defense"
is asserted in Richstein v. Welch,
197 Mass. 224, 83 N. E. 417.
2. Cummings v. Harrison, 57
Miss. 275; Jones v. Balsley, 154
N. Car. 61, 69 S. E. 827; Morgan
V. Haley, 107 Va. 331, 13 L. R.
A. (N. S.) 732. 122 Am. St. Rep.
846, 13 Ann. Cas. 204, 58 S. E.
564.
3. Fassler v. Streit, 100 Neb.
722, 161 N. W. 172; Morette v.
Bostwick, 127 N. Y. App. Div.
701, 111 N. Y. Su'pp. 1021; Middle-
ton v. Thompson, 1 Speers L. (S.
Car.) 67; Somers v. Schmidt, 24
Wis. 421, 1 Am. Rep. 191.
4. Rawle, Covenants §, 123
and cases cited. Osburn v. Prltch-
ard, 104 Ga. 145, 30 S. E. 656;
17()() Real, Propeety. [§<§ 454, 455
kof notice the covenantor is bound by the judgment it
he is a party thereto.^
§ 454. Covenant for further assurance. The cov-
enant by the grantor to make such other assurances
as may be necessary to perfect the title is less ex-
tensively used in the United States than any of the other
covenants for title, though its importance to the pur-
chaser, it has been said, ' ' can hardly be overrated. ' '^ Un-
der this covenant, the convenantor may be required to do
such further acts as may be necessary on his part to
perfect the title which the conveyance purports to
pass, but the covenantee cannot demand that he do
acts which are unnecessary, or which it is impossible
for him to do. The remedy under this covenant is
more often by a suit for specific performance than by
an action of damages, as in the case of the other
covenants.'^
§ 455. The measure of damages — Covenant for sei-
sin. In an action for breach of the covenant for seisin,
the measure of damages is ordinarily the amount of
the consideration paid by the grantee, usually with
interest, such consideration being presumably the value
Council Imp. Co. v. Pacific & 757; Elliott v. Saufley, 89 Ky.
Idaho Northern Land & Improve- 52, 11 S. W. 200; Eaker v. Har-
ment Co., 29 Idaho 113, 57 Pac. vey, 192 Mo. App. 697, 179 S. W.
258; Sisk v. Woodruff, 15 111. 985; Smith v. Dixon, 27 Ohio St.
15; Dalton v. Bowker, 8 Nev. 477; Jennings v. Kiernan, 35 Ore.
190; Baumgartner v. Chipman, 30 349, 55 Pac. 443, 56 Pac. 72.
Utah, 466, 86 Pac. 411; Anderson 6. Rawle, Covenants for Title,
V. Blgelow, 16 Wash. 198, 47 Pac. § 98. See Cochran v. Pascault,
426; Wallace v. Pereles, 109 Wis. 54 Md. 1.
316, 53 L. R. A. 644, 83 Am. St. 7. Rawle, Covenants. §§ 99-109.
Rep. 898, 85 N. W. 371. See The fact that this covenant may
Kapiolani Estate v. Atcherley, 238 be enforce^d by specific perform-
U. S. 119, 59 L. Ed. 1229. ance, while the other covenants
5. Seyfried v. Knoblauch. 44 for title cannot, is the reason,
Colo. 86, 96 Pac. 993; Samson v. as stated by Mr. Rawle, of its
Zimmerman, 73 Kan. 654, 85 Pac. great value to the purchaser.
§ 455]
Transfer Inter Vivos.
1707
of the land at the time of the sale, with a view to which
the covenant w^as made.^ Adopting this measure of
damages in case the breach is as to part of the premises
only, the recovery is a part of the consideration,
proportioned to the vahie of snch part.'-^ And if the
estate which passes is less than that purported to be
conveyed, the amount recoverable is the consideration
paid less the value of the estate which actually passes. ^'^
Occasionally the view has been asserted that the
covenantee can recover only nominal damages on ac-
count of a breach of the covenant for seisin, if he has
in no way been disturbed in his possession of the land.^^
In the great majority of cases, however, the fact that
the grantee is or is not still in possession is not re-
8. Mather v. Stokely, 218 Fed.
764, 134 C. C. A. 442; Logan v.
Moulder, 1 Ark. 313, 33 Am. Dec.
338; Mitchell v. Hazen, 4 Conn.
516, 10 Am. Dec. 169; King v.
Gilson's Adm'x, 32 lU. 348, 83
Am. Dec. 269; Shorthill v. Fer-
guson, 44 Iowa, 249; Cummins v.
Kennedy, 3 Litt (Ky.) 118, 14
Am. Dec. 45; Marston v. Hobbs,
2 Mass. 433, 3 Am. Dec. 61;
Nichols V. Walter, 8 Mass. 243;
Willson V. Willson, 25 N. H. 229,
57 Am. Dec. 320; Pitcher v.
Livingston, 4 Johns. (N. Y.) 1;
Crowell V. Jones, 67 N. C. 386,
83 S. E. 551; Backus' Admr's v.
McCoy, 3 Ohio, 211, 17 Am. Dec.
585; Conklin v. Hancock, 67 Ohio
St. 455, 66 N. E. 518; Bender v.
Fromberger, 4 Dall. (Pa.) 442;
Park V. Cheek, 4 Cold. (Tenn.)
20; Norfolk & W. Ry. Co. v.
Mundy, 110 Va. 422, 66 S. E. 61.
9. Bibb V. Freeman, 59 Ala.
612; Seyfried v. Knoblauch, 44
Colo. 86, 96 Pac. 993; Hubbard v.
Norton, 10 Conn. 422; Lloyd v.
Sandusky, 20:'. 111. 621, 68 N. E.
154; Wright v. Nipple, 92 Ind.
310; Scantlin v. Allison, 12 Kan.
85; Cushman v. Blanchard, 2 Me.
266, 11 Am. Dec. 76; Cornell v.
Jackson, 3 Cush. (Mass.) 506;
Dubay v. Kelly, 137 Mich. 345,
100 N. W. 677; Adkins v. Tom-
linson, 121 Mo. 487, 26 S. W. 573;
Staats V. Ten. Eyck's Ex'rs, 3
Caines (N. Y.) Ill, 2 Am. Dec.
254; Campbell v. Shaw, 170 N.
Car. 186, 86 S. E. 1035; Beaup-
lan,d V. McKeen, 28 Pa. St. 124, 70
Am. Dec. 115.
10. Gray v. Biscoe, Noy, 142;
Hartford etc. Ore Co. v. Miller,
41 Conn. 112; Kimball v. Bryant,
25 Minn. 496; Tanner v. Living-
ston, 12 Wend. (N. Y.) 83; Curtis
V. Brannon, 98 Tenn. 153, 69 L.
R. A. 760, 38 S. W. 1073; Bowne
V. Walcott, 1 N. Dak. 415.
11. Hacker v. Blake, 17 Ind.
97; Hencke v. Johnson, 62 Iowa,
555; Sable v. Brockmeier, 45
Minn. 248, 47 N. W. 794; Conklin
V. Hannibal etc., R. Co. 65 Mo.
533; Bowne v. Wolcott, 1 N.
Dak. 415, 48 N. W. 336; Kinzie
1708 Real Property. [§ 455
ferred to in connection with the question of the
amount of damages recoverable, and in a few cases
the view referred to is clearly repudiated.^- But
since, if the covenantee is allowed to recover what he
paid for the land, he should not be allowed to retain
the land, the courts, in giving him substantial damages
in such case, have occasionally taken measures to pro-
tect the covenantor in this regard, either by reciuiring
the tender of a reconveyance as a prerequisite to the
recovery of a judgment,^^ or ,by regarding the judg-
ment for damages as in itself revesting the title in the
covenantors^ or, it might be that the court will require
a reconveyance as a prerequisite to the issue of exe-
cution on the judgment.s^
Although the covenant is broken by reason of
lack of title in the grantor at the time of the convey-
ance, only nominal damages can be recovered if, before
suit on the covenant, the lapse of the limitation period
has perfected the title of the grantee,^^ or if the
grantee's title is perfected by the grantor's acquisi-
tion of the paramount title, which enures to the benefit
of the grantee on the theory of estoppel. ^'^
In case the grantee buys in a paramount title, he
can recover the amount paid therefor, provided this
V. Riely's Ex'r, 100 Va. 709, 42 188; Kincaid v. Brittain, 5 Sneed
S. E. 872; Smith v. Hughes, 50 (Tenn.) 123; CampbeU v. Mar-
Wis. 620, 7 N. W. 653. tin, 89 Vt. 214, 95 Atl. 494 (on
12. Bolinger v. Brake, 57 Kan. satisfaction of judgment) ; Noon-
663, 47 Pac. 537; Parkinson v. an v. Ilsey, 21 Wis. 148.
Woulds, 125 Mich. 325, 84 N. W. 15. See Rawie, Covenants, §
292; Kincaid v. Brittain, 5 Sneed 185; Catlin v. Hurlburt, 3 Vt.
(Tenn.) 119; Blake v. Burnham, 403; Ives v. Niles, 5 Watts (Pa.)
29 Vt. 437. 323; Campbell v. Martin, 89 Vt.
13. Shorthill v. Ferguson, 44 214, 95 Atl. 494.
Iowa, 249, 47 Iowa, 284; Frazer 16. Wilson v. Forbes. 2 Dev.
V. Supervisors of Peoria, 74 III. (N. Car.) 30; Kincaid v. Britain,
111. 282; Flint v. Steadman, 36 5 Sneed (Tenn.) 123; Garfield
Vt. 210. v. Williams, 2 Vt. 328.
14. Stinson v. Sumner, 9 Mass. 17. Ante, § 449, notes 73-76.
150; Parifer v. Brown, 15 N. H.
§ 455]
Transfer Inter Vivos.
1709
was a fair and reasoiia])le price, and no more.^^
The covenant for right to convey beins; the equiva-
lent of the covenant of seisin, it follows that the mea-
sure of damages for breach is the same, that is,
ordinarily the amount of the consideration paid.^''
Covenant for quiet enjoyment and v/arranty.
Tlie measure of damages for breach of a covenant for
quiet enjoyment or of warranty is, by the weight of
authority, the same as that for breach of the covenant
for seisin or of right to convey, that is, in the ordinary
case, the value of the land at the time of the convey-
ance, as measured by the consideration paid, without
reference to any increase in value arising from the
development of the neighborhood or the improvement
of the land itself.-*^ In some of the New England states,
18. Anderson v. Knox, 20 Ala.
156: Pate v. MarshaU, 23 Ark.
591; Weber v. Anderson, 73 lU.
439; Bolinger v. Brake, 57 Kan.
663, 47 Pac. 537; Spring v. Chase,
22 Me. 505, 39 Am. Dec. 500;
KimbaU v. Bryant, 25 Minn. 496;
Hall V. Bray, 51 Mo. 288; Werner
V. Wheeler, 142 App. Div. 358, 127
N. Y. Supp. 158; Price v. Deal, 90
N. Car. 290; Eames v. Armstrong,
146 N. Car. 1, 125 Am. St. Rep.
436, 59 S. E. 165; Cobb v.
Klosterman. 58 Ore. 211, 114 Pac.
96.
19. Mitchell v. Hazen, 4 Conn.
516, 10 Am. Dec. 109; Willson v.
Wlllson, 25 N. II. 233, 57 Am.
Dec. 320; Hodges v. Thayer. 110
Mass. 286; Kinzie v. Riely's Ex'r,
100 Va. 709, 42 S. E. 872 (nominal
damages) ; Messer v. Oestreich, 52
Wis. 684, 10 N. W. 6.
20. Allinder v. Bessemer Coal,
Iron & Land Co., 164 Ala. 275, 51
So. 234; Weber v. Anderson, 73
Til. 439; Burton v. Reeds, 20 Tnd.
R. P.— 33
87; Swafford v. Whipple, 3 G.
Greene (Iowa) 261, 54 Am. Dec.
498; Efta v. Swanson, 115 Minn.
373, 132 N. W. 335; Winnipiseogee
Paper Co. v. Eaton, 65 N. H. 13,
18 Atl. 171; Bennett v. Jenkins,
13 Johns. (N. Y.) 50; Hunt v.
Hay, 214 N. Y. 578, 108 N. E. 851;
Clark V. Parr, 14 Ohio, 118, 45
Am. Dec. 529; Brown v. Dicker-
son, 12 Pa. St. 372; Elliott v.
Thompson, 4 Humph. Tenn.) 99,
40 Am. Dec. 630; Lewis v. Ross,
95 Tex. 358, 67 S. W. 405; Far-
well V. Bean, 82 Vt. 172, 72 Atl.
731; Conrad v. Effinger, 87 Va.
59, 24 Am. St. Rep. 646, 12 S.
E. 2; West Coast Mfg. & Inv.
Co. V. West Coast Imp. Co., 31
Wash. 610, 72 Pac. 455.
The amount of the considera-
tion paid by the covenantee, rath-
er than that received by the
covenantor, determines the dam-
ages. Hunt V. Hay, 214 N. Y.
.578, 108 N. E. 851.
1710 Eeal Pkopebty. [§ 455
however, the covenants for quiet enjoyment and of
warranty are regarded as intended to indemnify the
covenantee for any loss suffered by him, and as con-
sequently entitling him to damages to the extent of the
value of the land at the time of the eviction.-^ Such
a rule may involve a very great burden upon one
who sells land his title to which is defective, though he
believes it to be good, he being thereby made liable
for the cost of all improvements, however great, made
by his grantee, as well as for any increase in value
arising from growth of population and the like causes.^^
Upon a breach of the covenant as regards a part of
the land only, the grantee is . entitled to recover a
proportioned part of what he could have recovered on
a total breach.23
In case the grantee is not actually dispossessed,
but buys in the outstanding title, he is ordinarily en-
titled, in an action on the covenant of warranty or for
quiet enjoyment, to recover only the amount paid by
him therefor.24 jj^ gQ f ^j. ^s there may be a breach by
21. Horsford v. Wright, Kirby 92 Tex. 44, 45 S. W. 562; West
(Conn.) 3, 1 Am. Dec. 8; Gore v. Coast Mfg. & Inv. Co. v. West
Brazier, 3 Mass. 523, 3 Am. Dec. Coast Imp. Co., 31 Wash. 610, 72
182; Cecconi v. Rodden, 147 Mass. Pac. 455; Butcher v. Peterson, 26
64, 16 N. E. 749; Park v. Bates, W. Va. 447, 53 Am. Rep. 89.
12 Vt. 381, 36 Am. Dec. 347; 24. Brawley v. Copelin, 106
Williamson v. Williamson, 71 Ark. 256, 153 S. W. 101; Clay-
Me. 442. comb v. Munger, 51 111. 373;
22. See Rawle, Covenants, §§ Beasley v. Phillips, 20 Ind. App.
165-171. 182, 50 N. E. 488; Sullivan v.
23. Hoffman v. Kirby, 136 Cal. Hill, 33 Ky. L. Rep. 962, 112 S.
26, 68 Pac. 321; PhiUips v. W. 564; LefBngwell v. Elliott.
Reichert, 17 Ind, 120, 79 Am. 8 Pick. (Mass.) 455; Brooks v.
Dec. 463; McNally v. White, 154 Mohl, 104 Minn. 404, 116 N. W.
Ind. 63, 54 N. E. 794, 56 N. E. 931; Halloway v. Miller, 84 Miss.
214; James v. Louisville Public 776, 36 So. 531; Cheney v.
Warehouse Co., 23 Ky. Law Rep. Straube, 35 Neb. 521, 53 N. W.
1216, 64 S. W. 966; Boyle v. Ed- 479; Lemby v. Ellis, 146 N. Car.
wards, 114 Mass. 373; AUen v. 221, 59 S. E. 683; Arrigoni v.
Miller, 99 Miss. 75, 54 So. 731; Johnson, 6 Oreg. 167; Cox v.
Mengel v. Williamson, 50 Pa. Henry, 32 Pa. St. 18; Mengel v.
Super. Ct. 100; Hynes v. Packard, Williamson, 50 Pa. Super. Ct. 100;
§ 455J
Transfer Inter Vivos.
1711
reason of an easement outstanding in a third person,^^
he can, it seems, recover only the amount of the conse-
quent decrease in the value of the land.-*' In so far
as damages for breach of a covenant for title may be
measured by the consideration paid, the recital in that
regard in the conveyance is not conclusive as to the
amount.^ '^
Covenant against incumbrances. TLe covenant
against incumbrances is considered as one for indemnity
only, and the covenantee can recover no more than
what he may have been compelled to pay in order to
extinguish the outstanding incumbrance,^^ or, in case
he can not so extinguish it, the amount of injury which
he may be considered to have suffered from its exis-
tence, ordinarily measured by the resulting diminution
in the value of the land.^^ But though no loss has been
Brown v. Thompson, 81 S. C. 380.
62 S. E. 440; McClelland v.
Moore, 48 Tex. 355; Cameron v.
Burke, 61 Wash. 203, 112 Pac.
252. But see Nolan v. Feltman,
12 Bush. (Ky.) 119.
25. Ante, § 453, notes 76-78.
26. Harrington v. Bean. 89 Me.
470, 36 Atl. 986; Schwartz v.
Black, 131 Tenn. 360, Ann. Cas.
1916C 1195, 174 S. W. 1146.
27. Bass V. Starnes, 108 Ark.
357. 158 S. W. 136; Rook v.
Rook, 111 111. App. 398; Cook v.
Curtis. 68 Mich. 611, 36 N. W.
692; Holmes v. Seaman, 72 Neb.
300, 100 N. W. 417, 101 N. W.
1030; Mayer v. Wooten. 46 Tex.
Civ. App. 327, 102 N. W. 423.
28. Fraser v. Bentel, 161 Cal.
390, Ann. Cas. 1913B, 1062, 119
Pac. 509; Mitchell v. Hazen, 4
Conn. 495, 10 Am. Dec. 169; Amos
V. Cosby, 74 Ga. 793; McDowell
V. Milroy, 69 111. 498; Boice v.
Coffeen, 158 Iowa, 705, 138 N.
W. 857; Reed v. Pierce, 36 Me.
455, 58 Am. Dec. 761; Johnson v.
Collins, 116 Mass. 392; Kellogg
V. Malin, 62 Mo. 429; Hartshorn
V. Cleveland, 52 N. .1. Law 473,
19 Atl. 974; Corbett v Wren, 25
Oreg. 305, 35 Pac. 658; Myers v.
Brodbeek, 110 Pa. St. 198, 5 Atl.
662; Pritchard v. Rebori, 135
Tenn. 328, 186 S. W. 121; George
A. Lowe Co. v. Simmons Ware-
house Co., 39 Utah, 395, Ann.
Cas. 1913E, 246, 117 Pac. 874;
Eaton V. Lyman, 30 Wis. 429.
29. Rawle, Covenants, §§ 190,
191; Fraser v. Bentel, 161 Cal.
390, Ann. Cas. 1913B, 1062, 119
Pac. 509; Mitchell v. Stanley, 44
Conn. 312; Morgan v. Smith, 11
111. 194; Kostendader v. Pierce,
37 Iowa, 645; Harrington v. Bean,
89 Me. 470, 36 Atl. 986; Wether-
bee V. Bennett, 2 Allen (Mass.)
428; Bailey v. Agawam Nat.
Bank. 190 Mass. 20. 3 L. R. A.
(N. S.) 98, 112 Am. St. Rep.
1712
Ukal. Pkopekty.
[§ 455
sustained at the time of bringing suit, he may recover
nominal damages, since the covenant is regarded as
broken as soon as made, when there is any outstanding
incumbrance.'^ °
In those states in which the recovery on a covenant
for quiet enjoj^nent or of warranty is limited to the
amount of the consideration paid, the recovery for
breach of the covenant against incumbrances is likewise
so limited, no matter what exj^enditure or loss the cove-
nantee may have incurred on account of the incum-
brance.''^
296, 76 N. E. 449; Mackey v.
Harmon, 34 Minn. 168, 24 N. W.
702; KeUofeg v. Malin, 62 Mo.
429; WiUson v. Willson, 25 N.
H. 229, 57 Am. Dec. 320; Wil-
liams V. Hewitt, 57 Wash. 62,
135 Am. St. Rep. 971, 106 Pac.
496; Smith v. White, 71 W. Va.
639, 48 L. R. A. (N. S.) 623,
78 S. E. 378; Gadow v. Hunholtz,
160 Wis. 293, 151 N. W. 810.
See McGuckin v. Milbank, 152
N. Y. 297, 46 N. E. 490.
When the breach arises from
the existence of an outstanding
term of years, the value of tho
use of the land for such term
has been regarded as the meas-
ure of damages. Barker v. Den-
ning. 91 Kan. 485, 138 Pac. 573;
Malsbury v. Jacobus, 88 Neb. 751,
130 N. W. 424; Porter v. Bradley,
7 R. I. 542.
30. Tuskegee Land & Security
Co. V. Birmingham Realty Co.,
161 Ala. 542, 23 L. R. A. (N.
S.) 992, 49 So. 378; Ensign v.
Colt, 75 Conn. Ill, 52 Atl. 829.
946; WiUetts v. Burgess, 34 111.
494; Thompson v. Richmond, 102
Me. 335, 66 Atl. 649; Wilcox v.
Musche, 39 Mich. 101; Walker's
Adm'r v. Deaver, 79 Mo. 664;
Smith V. Jefts, 44 N. H. 482;
Hasselbuch v. Mohmking, 76 N.
J. L. 691, 73 Atl. 961; McGucken
V. Milbank, 152 N. Y. 297, 46 N.
E. 490; Fishel v. Browning, 145
N. C. 71, 58 S. E. 759; Funk v.
Voneida, 11 Serg. & R. (Pa.) 109,
14 Am. Dec. 617; International
Development Co. v. Clemans, 59
Wash. 398. 109 Pac. 1034; In re
Hanlin's Estate, 133 Wis. 140,
113 N. W. 411; Rawle, Covenants,
§§ 188, 189.
That the grantee could have
recovered nominal damages on a
covenant against incumbrances by
reason of an outstanding mort-
gage does not prevent a recovery
on the covenant of warranty upon
his eviction after foreclosure of
the mortgage. Smith v. Wahl,
88 N. J. L. 623, 97 Atl. 261.
31. Rawle, Covenants, § 193;
Collier v. Cowger, 52 Ark. 322, 6
L. R. A. 107, 12 S. W. 702; Guth-
rie V. Russell, 46 Iowa, 269, 26
Am. Rep. 135; Dimmick v. Lock-
wood, 10 Wend. (N. Y.) 142;
Foote V. Burnet, 10 Ohio, 317, 36
Am. Dec. 90; George A. Lowe
Co. V. Simmons Warehouse Co.,
§ 455] Transfer Inter Vivos. 173 3
Interest. Interest from the time of plaintiff's
eviction is })resumaMy always recoverable by him,^^
since from that time he is deprived of the use of his
money and also of the use of the land. For a like
reason a covenantee who, by reason of an outstanding
title, fails to acquire the possession of the land under
the conversance to him, is entitled to interest on the
purchase price paid by him from the time of its pay-
ment. ^^
Whether, when the covenantee did acquire the pos-
session under his conveyance, he is entitled to interest
on the purchase price for the period previous to his
eviction by the paramount owner, has ordinarily been
regarded as dependent on the question of his liability
to the latter for mesne profits."^ ^ Except for this liabil-
ity, he might well be regarded as compensated, by his
enjoyment of the land, for his deprivation of the use
of the money, and so not entitled to interest. But the
courts usually assume that if he has not already been
made liable for such profits, he will be made so liable,
and consequently do not regard his enjoj^nent of the
land as in itself sufficient to deprive him of interest.
In so far, however, as his non liability for mesne profits
can be regarded as established, by adjudication or
otherwise, he is not entitled to interest,"'-^ and, so if, by
39 Utah, 395, 117 Pac. 874, Ann. Tex. 37, 16 S. W. 623.
Gas. 1913E, 246; Eaton v. Lyman, 34. In Virginia the recovery
30 Wis. 41. of interest is restricted to that
32. Collier v. Cowger, 52 Ark. which accrues after eviction.
322, 6 L. R. A. 107, 12 S. W. 702; Threlkeld v. Fitzhugh, 2 Leigh,
Spring V Chase, 22 Me 505, 39 451; Abernathy v. Phillips, 82
Am. Dec. 595; Hutchins v. Round- Va. 769, 1 S. E. ll;i.
tree, 77 Mo. 500; Henning v. 35. Harding v. Larkin, 41 111.
Withers, 3 Brev. (S. C) 458, 6 413; White v. Tucker, 52 Miss.
Am. Dec". 589; Conrad v. Effinger, 145; Withers v. Bank of Com-
87 Va. 59, 24 Am. St. Rep. 649. merce & Trust Co., 104 Miss.
3^. Graham v. Dyer, 16 Ky. 681, 61 So. 690; McGuffey v.
L. Rep. 541, 29 S. W. 'MG; Hutch- Humes. 85 Tenn. 26. 1 S. W.
ins V. Roundtree. 77 Mo. 500; 506; Mann v. Mathews, 82 Tex.
Hunt V. Nolen, 46 S. C. 551, 24 98, 17 S. W. 927; Flint v. Stead-
S. E. 543; Johns v. Hardin, 81 man, 36 Vt. 210. Contra, Rhea
171-t Eeal. Property. [§ 455
reason of the statute of limitations, or for some other
reason, he is liable for mesne profits for only a limited
number of years back, his right to recover interest is
limited to those years.''*' Occasionally the immunity
of the covenantee from liability for mesne profits has
been regarded as precluding his recovery of interest
only in so far as the land was capable of beneficial use,^^
but the correctness of such a view is open to question.^^
Expenses of litigation. Since the covenantee.
if he relinquishes possession on the demand of one
asserting a paramount title, has the burden of showing
that the claimant's title is paramount,''** it appears just
and equitable that he should have the privilege of
defending against the adverse claim without incurring
loss by so doing. This has been generally recognized
by the courts to the extent of giving him, as an element
of damages in an action on the covenant, the costs in
an action against him by the paramount claimant,
which action he, in good faith but unsuccessfully, un-
dertook to defend.*^ In some states the covenantee is
V. Swain, 122 Ind. 272, 22 N. E. 37. Wood v. Kingston Coal Co.,
1000, 23 N. E. 776. 48 IH. 356, 95 Am. Dec. 554;
36. Fernander v. Dunn, 19 Ga. Yazoo & M. V. R. Co. v. Ban-
497, 65 Am. Dec. 607; Harding v. ister, 89 Miss. 808, 42 So. 345.
Larkin, 41 111. 413; Spring v. 38. See Spring v. Chase, 22
Chase, 22 Me. 505, 39 Am. Dec. Me. 505, 39 Am. Dec. 595.
595; Stebbins v. Wolf, 33 Kan. 39. Ante, § 453, note 96.
765, 7 Pac. 542; Thompson v. 40. Kingsbury v. Milner, 69
Jones, 11 B. Mon. (Ky.) 365; Ala. 502; Beach v. Nordman, 90
Hutchins v. Roundtree, 77 Mo. Ark. 59, 117 S. W. 785; Mc-
500; Morris v. Rowan, 17 N. J. Cormick v. Marcy, 165 Cal. 449,
L. 304; Poster v. Thompson, 41 132 Pac. 449; Harding v. Larkin.
N. H. 373; Staats v. Ten Eyck, 41 111. 413; Stebbins v. Wolf, 33
3 Caines, 111, 2 Am. Dec. 256; Kan. 765, 7 Pac. 542; Robertson
Caulkins v. Harris, 9 Johns, 324; v. Lemon, 2 Bush (Ky.) 302;
Bennett v. Jenkins, 13 Johns. Dubay v. Kelly, 137 Mich. 345,
(N. Y.) 50; Clark v. Parr, 14 100 N. W. 677; Brooks v. Mohl,
Ohio, 118, 45 Am. Dec. 529; Cox 104 Minn. 404, 116 N. W. 931;
V. Henry, 32 Pa. 18; Mengel Box Brooks v. Black, 68 Miss. 161,
Co. V. Ferguson, 124 Tenn. 433, 11 L. R. A. 176, 24 Am. St. Rep.
137 S. W. 101. 259, 8 So. 332; Hazelett v. Wood-
§ 455]
Transfer Inter Vrv'os.
1715
also allowed the reasonable amount of fees paid his
attorney in such action,^ ^ while in others his right to
attorney's fees is denied.^ ^ Not infrequently the cove-
nantee has been caid to be entitled to recover the ex-
pense or cost of such previous litigation, an expression
presumably broad enough to include attorney's fees as
well as taxed costs.^^
ruff. 150 Mo. 534, 51 S. W. 1048;
Taylor v. Holier, 1 Mont. 688;
Jones V. Balsley, 154 N. C. 61,
69 S. E. 827; Pitcher v. Living-
ston, 4 Johns. (N. Y.) 4 Am.
Dec. 229; McAlpin v. Woodruff,
11 Ohio St. 120; Welsh v. Kiliber,
5 S. C. 405; Mengel Box Co. v.
Ferguson, 124 Tenn. 433, 137 S.
W. 101; Morgan v. Haley, 107 Va.
331, 13 L. R. A. N. S. 732, 12
Am. St. Rep. 846, 13 Ann. Cas.
204, 58 S. E. 564. Contra, Taylor
V. Allen, 131 Ga. 416, 62 S. E.
291; Terry's Ex'r v. Drabenstadt,
48 Pa. 400; Clark v. Mumford, 62
Tex. 531. See Shook v. Lanfer,
(Tex. Civ. App.) 100 S. W. 1042.
The covenantee is obviously not
entitled to the costs of defending
an action in which he is suc-
cessful, since this would impose
liability under the covenant for
the act of a third person not
having paramount title. Hoffman
V. Dickson, 65 Wash. 556, 39 L.
R. A. (N. S.) 67, Ann. Cas. 1913B,
869, 118 Pac. 737; Smith v. Par-
sons, .-.S W. Va. 644, 11 S. E.
68.
41. Beach v. Nordman, 90 Ark.
59, 117 S. W. 785; McCormick v.
Marcy, 165 Cal. 449, 132 Pac.
449; Harding v. Larkin, 41 111.
413; Meservey v. Snell, 94 Iowa,
222, 58 Am. St. Rep. 391, 62 N.
W. 767; Burchfield v. Brinkman,
92 Kan. 377, 140 Pac. 894; Robert-
son v. Lemon, 2 Bush (Ky.)
302; Ryerson v. Chapman, 66 Me.
557; Brooks v. Mohl, 104 Minn.
404, 116 N. W. 931; Hazelett v.
Woodruff, 150 Mo. 534, 51 S. W.
1048; Taylor v. Holter, 1 Mont.
688; Walton v. Campbell, 51 Neb.
788, 71 N. W. 737; Rickert v.
Snyder, 9 Wend. (N. Y.) 416;
Lane v. Fury, 31 Ohio St. 574;
Keeler v. Wood, 30 Vt. 242.
42. Taylor v. Allen, 131 Ga.
416, 62 S. E. 291; Reggio v.
Braggiotti, 7 Cush. (Mass.) 166;
Brooks V. Black, 68 Miss. 161,
11 L. R. A. 17G, 24 Am. St. Rep.
259, 8 So. 332; Holmes v. Sin-
nickson, 15 N. J. L. 313; Terry
V. Drabenstadt, 68 Pa. 400; Jeter
V. Glenn, 9 Rich. L. (S. C.) 374;
Mengel Box Co. v. Ferguson,
124 Tenn. 433, 137 S. W. 101;
Turner v. Miller, 42 Tex. 418;
Morgan v. Haley, 107 Va. 331, 13
L. R. A. (N. S.) 732, 122 Am.
St. Rep. 846, 13 Ann. Cas. 204,
58 S. E. 564.
43. Beach v. Nordman, 90 Ark.
59, 117 S. W. 785; Butler v.
Barnes, 61 Conn. 399, 24 Atl.
328; Meservey v. Snell, 94 Iowa,
222, 58 Am. St. Rep. 391, 62 N.
W. 767; Stebbins v. Wolf, 33
Kan. 7G5, 7 Pac. 542; Quick v.
Walker, 125 Mo. App. 257, 102 S.
W. 33; Williamson v. Williamson,
1716
Real, Peoperty.
[§ 455
The view has occasionally been asserted or sug-
gested that the costs of the previous action,^^ or the
amount of attorneys' fees therein,* ^^*^ should be al-
lowed only in case the covenantee notified the covenantor
of the litigation in time to enable the latter to deter-
mine the advisability of contesting the adverse claim,
the covenantee being in that case entitled to recover
such expenditures unless the covenantor requested him
not to make the contest.
The allowance to the covenantee of the cost of pre-
vious litigation between him and the paramount claim-
ant has not been confined to the case of an action
against him by such claimant, but has been extended to
the case of a proceeding by him against such claimant
71 Me. 442; Cheney v. Straube,
35 Neb. 521, 53 N. W. 479;
Ryerson v. Chapman, 66 Me. 557;
Richmond v. Ames, 164 Mass. 467,
41 N. E. 671; Brooks v. Mohl,
104 Minn. 404. 17 L. R. A. (N.
S.) 1195, 116 N. W. 931; Taylor
V. Holter, 1 Mont. 688; Drew v.
Towle, 30 N. H. 531 {semble);
Winnepiseogee P. Co. v. Eaton,
65 N. H. 13, 18 Atl. 171 (semble) ;
Lane v. Fury, 31 Ohio St. 574;
Point St. Iron Works v. Turner,
14 R. I. 122, 51 Am, Rep. 364;
Keeler v. Wood, 30 Vt. 242; Tar-
bell V. Tarbell, 60 Vt. 486, 15 Atl.
]04.
44. De Jarnette v. Dreyfus,
166 Ala. 138. 51 So. 932; Butler
V. Barnes, 61 Conn. 399, 24 Atl.
328; Teague v. Whaley, 20 Ind.
App. 26, 50 N. E. 41; Walsh v.
Dunn, 34 111. App. 146; Mercantile
Trust Co. V. South Park Resi-
dence Co.. 94 Ky. 271, 22 S. W.
314; Hutchins v. Roimdtree, 77
Mo. 500; Mengel Box Co. v. Fer-
guson, 124 Tenn. 433, 137 S. W.
101. But that no notice is neces-
sary, see Ryerson v. Chapman,
66 Me. 557; Morris y. Rowan,
17 N. J. L. 304; Tarbell v. Tar-
bell, 60 Vt. 486, 15 Atl. 104.
See Matheny v. Stewart, 108 Mo.
73, 17 S. W. 1014.
45-46. Garner v. Morris, 187
Ala. 658, 65 So. 1000; Teague v.
Whaley, 20 Ind. App. 26, 50 N. E.
41; Meservey v. Snell, 94 Iowa,
222, 58 Am. St. Rep. 391, 62 N.
W. 767; Mercantile Trust Co. v.
South Park Residence Co., 94 Ky.
271, 22 S. W. 314; Crisfield v.
Storr, 36 Md. 129, 11 Am. Rep.
480; Richmond v. Ames, 164
Mass. 467, 41 N. E. 671; Macken-
zie V. Clement, 144 Mo. App. 114,
129 S. W. 730; Jeffords v. Dreis-
bach, 168 Mo. App. 577, 153 S.
W. 274; Balte v. Bademilfer, 37
Ore. 27, 82 Am. St. Rep. 737,
60 Pac. 601; Ellis v. Abbott, 69
Ore. 234, 138 Pac. 488; Point St.
Iron Works v. Turner, 14 R. I.
122, 51 Am. Rep. 364.
§ 455]
Transfer Inter Vivos.
1717
involving the validity of the claim, and which re-
sulted in favor of the latter.^ ^
Action against remote grantor. Upon the
question of the measure of damages in an action upon
a covenant of warrant}^ brought, not by the original
covenantee, but by a remote grantee entitled to the
benefit of the covenant as one running with the land,^^
the cases are not in accord. Some courts have adopted
the view that the jnirchase price paid by the original
covenantee is the measure of recovery,^^ while others
regard the recovery as limited by what the plaintiff
himself paid for the land,^'^ without, however, recog-
nizing any right to recover more than the price paid
by the original covenantee, if this was less than that
paid by the plaintiff.^^ These latter cases thus in effect
regard the covenant as one for limited indemnity.
47. Chestnut v. Tyson, 105 Ala.
149, 16 So. 723, 53 Am. St. Rep.
101; Gragg v. Richardson, 25 Ga.
566, 71 Am. Dec. 190 (semJyle);
Walsh V. Dunn, 34 111. App. 146;
Yokum V. ThomaF, 15 Iowa, 67;
Barnett v. Montgomery, 6 T. B.
Mon. (Ky.) 331; Kyle v. Faunt-
leroy, 9 B. Mon. (Ky.) 622; Ryer-
son V. Chapman, 66 Me. 557;
Haynes v. Stevens, 11 N. H. 28..
Andrews v. Davison, 17 N. H.
413, 43 Am. Dec. 606; Lane v.
Fury, 31 Ohio St. 574; Pitkin v.
Leavitt, 13 Vt. 379.
48. Post. § 456.
49. Mischke v. Baughn. 52
Iowa, 528, 3 N. W. 543: Dough-
erty V. Duvall, 9 B. Mon. (Ky.)
57; Cook v. Curtis, 68 Mich. 611.
36 N. W. 692; Brooks v. Black,
68 Miss. 161, 8 So. 332, 11 L. R.
A. 176, 24 Am. St. Rep. 259; Low-
ranee v. Robertson, 10 S. C. 8;
Lewis v. Ross, 95 Tex. 358, 67 S.
W. 405; Hollingsworfh v. Mexia,
14 Tex. Civ. App. 363, 37 S. W.
455; Rogers v. Golson, (Tex. Civ.
App.) 31 S. W. 200.
50. Barnett v. Hughey, 54 Ark.
195, 15 S. W. 464; Taylor v. Wal-
lace, 20 Colo. 211, 46 Am. St.
Rep. 285, 37 Pac. 963; Crisfield
V. Storr. 36 Md. 129, 11 Am. Rep.
480; Moore v. Frankenfield, 25
Minn. 540; Dickson v. Desire, 2A
Mo. 166; Williams v. Beeman, 2
Dev. L. (13 N. C.) 483; Mette
V. Dow, 9 Lea (Tenn.) 93; Whitz-
man v. Hirsh, 87 Tenn. 513, 11
S. W. 421; Eaton v. Lyman, 26
Wis. 61, 7 Am. Rep. 39.
51. Barnett v. Hughey, 54 Ark.
195, 15 S. W. 464; Taylor v.
Wallace, 20 Colo. 211, 46 Am.
St. Rep. 285, 37 Pac. 963; Cris-
field v. Storr, 36 Md. 129, 11 Am.
Rep. 480; Moore v. Frankenfield,
25 Minn. 540; Dickson v. Desire,
23 Mo. 166; Williams v. Beeman,
2 Dev. L. (S. C.) 483; Whitz-
man v. Hirsh, 87 Tenn. 513, U
1718
Real Propeety.
[§ 456
§ 456. Covenants running with the land. The
benefit of a covenant for title until breach runs with the
Iand.^'2 Upon breach, the covenant is changed into a
mere personal right of action, to be enforced by the
i:)erson entitled to the benefit of the covenant at the time
of the breach, or, in case of his death, his personal
representative, and not passing with the land to his
heir, or to his grantee, unless there is an express as-
signment of the right of action.-"^^
Since covenants for quiet enjoyment and of war-
ranty are not broken until an interference with the use
and enjojTiient occurs, such a covenant may be enforced
by any person to whom, after the making of the cove-
nant and before such interference, the land may have
passed, whether a grantee of the covenantee, his heir,
or his devisee,^^ while one to whom the land passes af-
ter such interference has no right of action by reason
S. W. 421; Eaton v. Lyman, 26
Wis. 61, 7 Am. Rep. 39.
52. Rawle, Covenants, § 205.
53. Lewis v. Ridge, Cro. Eliz.
863; Lucy v. Levington, 2 Lev.
26; Peters v. Bowman, 98 U. S.
56, 25 L. Ed. 91; Pinckard v.
American Freehold Land Mort-
gage Co., 143 Ala. 568, 39 So.
350; Davis v. Lyman, 6 Conn.
249; Ladd v. Noyes, 137 Mass.
151; Davidson v. Cox, 10 Neb.
150 4 N. W. 1035; Adams v.
Conover, 87 N. Y. 422; Geiszler
V. De Graaf, 166 N. Y. 339, 82
Am. St. Rep. 659, 59 N. E. 993;
Wesco V. Kern, 36 Ore. 433, 59
Pac. 548, 60 Pac. 563; Provident
Life & Trust Co. v. Fiss, 147 Pa.
St. 232, 23 Atl. 5G0; Clement v
Bank of Rutland, 61 Vt. 298, 4
L. R. A. 425, 17 Atl. 717; Mc-
Conaughey v. Bennett's Ex'rs, 50
W. Va. 172, 40 S. E. 540.
54. Deason v. Findley, 145 Ala.
407, 40 So. 220: Gibbons v.
Moore, 98 Ark. 501. 136 S. W.
937; Redwine v. Brown, 10 Ga.
311; Claycomb v. Munger, 51 111.
373; Pence v. Rhonemus, 58 Ind.
App. 268, 108 N. E. 129; Wyman
V. Ballard, 12 Mass. 304; Libby
v. Hutchinson, 72 N. H. 190, 55
Atl. 547; Suydam v. Jones, 10
Wend. (N. Y.) 180, 25 Am. Dec.
552; Keyes & Marshall Bros.
Realty Co. v. Trustees of Canton
Christian College, 205 N. Y. 593,
98 N. E. 1105; King v. Kerr's
Adm'rs, 5 Ohio, 154, 22 Am. Dec.
777; Arnold v. Joines, 50 Okla.
4, 150 Pac. 130; Lawrence v.
Senter, 4 Sneed (Tenn.) 52; Til-
lotson V. Prichard, 60 Vt. 94, 6
Am. St. Rep. 95; McConaughey
V. Bennett's Ex'rs, 50 W. Va. 172,
40 S. E. 540; Patterson v. Cappon,
125 Wis. 198, 10? N. W. 1083;
Rawle, Covenants, § 213 et seq.
§ 456]
Transfer Inter Vivos.
1719
of his ownership of the laiid.^^ It appears to be the
rule, however, in a number of states, that the benefit of
the covenant w^ll not pass unless the covenantor,^^ or
the covenantee,^''' was in possession of the land at the
time of his transfer thereof, such possession being
regarded as involving an interest in the land,^^ to which
the covenant can be regarded as adhering, while in
the absence of such possession the attempted convey-
ance by the covenantee, with a paramount title outstand-
ing, transfers no interest whatsoever with which the
covenant can run.
The covenants of seisin and of right to convey,-^^
55. Gulf Coal & Coke Co. v.
ATusgrove, 195 Ala. 219, 70 So.
179; De Long v. Spring Lal^e
Beach Imp. Co., 74 N. J. L.
250, 66 Atl. 591; Thompson v.
Richmond, 102 Me. 33.5, 66 Atl.
649; Smith v. Richards, 155 Masn.
79, 28 N. E. 1132; Moore v. Mer-
rill, 17 N. H. 75, 43 Am. Dec.
593.
56. Wilson v. Widenham, 51
Me. 566; Slater v. Rawson, 1
Mete. (Mass.) 450, 6 Id. 439;
Allen V. Kennedy, 91 Mo. 324, 2
S. W. 142; Iowa Loan & Trust
Co. V. FuUen, 114 Mo. App. 633,
91 S. W. 58; Mygatt v. Coe, 152
N. Y. 457, 46 N. E. 949, 57 Am.
St. Rep. 521; Bull v. Beiseker,
16 N. Dak. 290, 14 L. R. A. (N.
S.) 514, 113 N. W. 870; H. T. &
C. Co. V. Whitehouse, 47 Utah,
323, 154 Pac. 950; Dickinson v.
Hoomes, 8 Gratt. (Va.) 353, 399;
McDonald v. Rothgeb, 112 Va.
749, 72 S. E. 692; Wallace v. Pere-
les, 109 Wis. 316, 53 L. R. A.
644, 83 Am. St. Rep. 898, 85 N. W.
371. See Solberg v. Robinson,
34 S. Dak. 55, 147 N. W. 87.
57. Wead v. Larkin, 54 111.
489, 5 Am. Rep. 149; Tillotson v.
Prichard, 60 Vt. 94, 6 Am. St.
Rep. 95, 14 Atl. 302.
58. The idea, though not so
expressed by the courts, appears
to be closely analogous to that of
the tortious fee acquired by a
disseisor. See a7ite, § 15.
59. Prestwood v. McGowin, 128
Ala. 267, 86 Am. St. Rep. 136;
ILawrenoe v. Montgomery, 37
Cal. 188; Mitchell v. Warner, 5
Conn. 498; Bethell v. Bethell,
54 Ind. 428, 23 Am. Rep. 650;
Thompson v. Richmond, 102 Me.
335, 66 Atl. 649; Sears v. Broady,
66 Neb. 207, 92 N. W. 214;
Chapman v. Holmes' Ex'rs, 10 N.
J. L. 20; Greenby v. Wilcocks, 2
Johns. (N. Y.) 1, 3 Am. Dec.
379; Mygatt v. Coe, 124 N. Y.
212, 11 L. R. A. 646, 26 N. E.
611; Eames v. Armstrong, 142
N. Car. 506, 55 S. E. 405; Brady
V. Bank of Commerce of Coweta,
41 Okla. 473, Ann. Cas. 1915B,
1019, 138 Pac. 1020; Solberg v.
Robinson, 34 S. Dak. 55, 147 N.
W. 87; Clement v. Bank of Rut-
land, 61 Vt. 298, 4 L. R. A. 425,
17 Atl. 717.
1720
Real. Property.
[§ 456
and also the covenant against inenmbrances,*'" have, in
the majority of the states, been regarded as not run-
ning with the land, the theory being that they involve
stipulations that a certain state of things exists at the
time of the conveyance, and that the nonexistence there-
of involves an immediate breach. In some states,
however, a different view has been adopted as to
these covenants,''^ it being considered that, 'even though a
technical breach be regarded as occurring at the time
of the conveyance, this does not prevent the covenant
from running until a breach occurs which involves sub-
stantial damage, and this view, which accords in result
with that adopted in E-ngland,*'^ has been favored by
the text book writers, as conducing to the efficiency of
the covenants and presumably harmionizing with the
purpose of their introduction, that of affording indem-
nity to persons claiming under the covenantee as well as
to the covenantee himself.''''^ In some states a similar
60. Turner v. Lal/son, 144 Ala.
432, 39 So. 755; Logan v. Moulder,
1 Ark. 313, 33 Am. Dec. 338;
McPike V. Heaton, 131 Cal. 109,
82 Am. St. Rep. 335; Mitchell v.
Warner, 5 Conn. 498; Thompson
V. Richmond, 102 Me. 335, 66
Atl. 649; Clark v. Swift, 3 Mete.
(Mass.) 390; Simonds v. Dia-
mond Match Co., 159 Mich. 241,
123 N. W. 1132; Blondeau v.
Sheridan, 81 Mo. 545; Bryant v.
Mosher, 96 Neb. 555, 148 N. W.
329: Moore v. Merrill, 17 N. H.
75. 43 Am. Dec. 593; Carter v.
Denman's Ex'rs, 23 N. J. L. 260;
Marbury v. Thornton, 82 Va. 702,
1 S. E. 909.
61. Covenants of seisin and
right to convey. Martin v. Bak-
er, 5 Blackf. (Ind.) 232; De-
hority v. Wright, 101 Ind. 382;
Schofield V. Iowa Homestead Co.,
32 Iowa, 318, 7 Am. Rep. 197;
Sturgis V. Slocum, 140 Iowa, 25,
116 N. W. 128; Devore v. Sunder-
land, 17 Ohio, 52, 49 Am. Dec.
442; Mecklem v. Blake, 22 Wis.
495; Covenants against incum-
brances. Richard v. Bent, 59 111.
38, 14 Am. Rep. 1; Hunt v.
Marsh, 80 Mo. 396; Foote v.
Burnet, 10 Ohio, *317; Cole v.
Kimball, 52 Vt. 639; In re Ham-
lin's Estate, 133 Wis. 140, 113 N.
W. 411. See Post v. Compau,
42 Mich. 90.
62. Kingdon v. Nottle, 1 Maule
& S. 355; King v. Jones, 5 Taunt.
418, Kingdon v. Nottle, 4 Maule
& S. 53.
63. See Rawle, Covenants. §§
208, 212; 1 Smith's Leading
Cases, Amer. notes, p. 221; 4
Kent, Comm. 472; editorial note
15 Harv. Law Rev. 150. Com-
pare note 6 Mich. Law Rev. 254.
§ 45G] Transfer Inter Vivos. 1721
result has been attained on the theory that the right of
action for the breach which immediately occurs is
transferred by the covenantee's subse(juent convey-
ance, unless a contrary intention appears, so as to
enable the transferee to bring suit on the covenant,
either in his own name,''"' or in that of the covenantee.*^*
Occasionally a statute specifically provides for the run-
ning of such covenants.^*^'
A covenant for further assurance is not regarded
as broken until damage has been caused by refusal to
furnish the assurance, and there is consequently a
right of action on such covenant in favor of one to whom
the land passes before such refusal,'^'"
The right of a remote grantee to sue upon a cove-
nant of title as running with the land is not affected by
the fact that he also has a right of action on a covenant
made directly with himself by his immediate grantor.*'^
In order to avoid the possibility of two or more
judgments against the covenantor on account of the
same breach in favor of successive owners of the land,
the rule has been laid down and generally adopted that
neither the covenantee nor a subsequent owner, after
parting with the land, can recover on the covenant
until he has himself been compelled to pay damages on
64. Tucker v. McArtliur, 103 suit on a covenant against In-
Ga. 409, 30 S. E. 283; Security cumbrances in the name of the
Bank of Minnesota v. Holmes, assignor, and the difficulties of
65 Minn. 531, 60 Am. St. Rep. pleading therein, see Rawle, Cov-
495, 68 N. W. 113; Kimball v. enants, § 227.
Bryant, 25 Minn. 496; Coleman v. 66. Rawle, Covenants, § 211.
Lucksinger, 224 Mo. 1, 123 S. W. 67. Rawle, Covenants, § 230;
441; Geiszler v. De Graaf, 166 Bennett v. Waller, 23 111. 97;
N. Y. 339, 82 Am. St. Rep. 659, Collier v. Gamble, 10 Mo. 467;
59 N. E. 993; Hall v. Paine, 14 Colby v. Osgood, 29 Barb. (N. Y.)
Ohio St. 417. See Arnold v. 339.
Joines, 50 Okla. 4, 150 Pac. 130. 68. Withy v. Mumford, 5 Cow.
65. Rawle, Covenants, § 226. (N. W.) 137, 607; Markland v.
See Peters v. Bowman, 98 U. S. Crump, 18 N. C. 101, 27 Am. Dec.
59, 25 L. Ed. 91; Newman v. 101, 27 Am. Dec. 230; Rawle,
Sevier, 134 111. App. 544; Cole Covenants, § 215.
v. Kimball, 52 Vt. 643. As to a
1722
Real, Property.
[§ 457
his own covenant, in favor of one claiming under him,
this being regarded as tantamount to an eviction."^
The covenantee or other owner of the land cannot,
unless in special cases, after having conveyed the land,
release the covenant, so as to affect the right of his
grantee to sue thereon,'^^ and it has been suggested that
such a release by the covenantee, even though made by
him while owner of the land, does not affect the right
of action in favor of a subsequent transferee of the
land who takes without notice, actual or constructive,
of the release. '^^
V. ExECUTIOISr OF THE CONVEYANCE.
§ 457. Signing. At common law, a written trans-
fer of land was always sealed, but not signed. In
England, the better oinnion is that the requirement in
the Statute of Frauds that the writing be signed does
not apply to a sealed instrument.''^ In this country.
69. Booth V. Starr, 1 Conn.
244, 6 Am. Dec. 233, Redwine
V. Brown, 10 Ga. 311; Thompson
V. Richmond, 102 Me. 335, 66
Atl. 649; Wheeler v. Sohier, 3
Cush. (Mass.) 222; Simonds v.
Diamond Match Co., 159 Mich.
241, 123 N. W. 1132; AUis v.
Foley, 126 Minn. 14, 147 N. W.
670; Chase v. Weston, 12 N. H.
413; Withy v. Mumford, 5 Cow.
(N. Y.) 137; Markland v. Crump,
18 N. C. 94, 27 Am. Dec. 230;
Clement v. Bank of Rutland, 61
Vt. 298, 4 L. R. A. 425, 17 Atl.
717.
70. Abby v. Goodrich, 3 Day
(Conn.) 433; Claycomb v. Mon-
ger, 51 111. 373; Crooker v. Jewell,
29 Me. 527; Chase v. Weston, 12
N. H. 413.
71. See Claycomb v. Munger,
51 111. 373; Susquehanna & Wyo-
ming Valley Railroad & Coal Co.
V. Quick, 61 Pa. St. 339; Field
V. Suell, 4 Cush. (Mass.) 504.
Contra, see Littlefield v. Getchell,
32 Me. 392.
72. Cherry v. Heming, 4 Exch.
631; Cooch v. Goodman, 2 Q. B.
580, 597; Aveline v. Whisson, 4
Man. & G. 801; 3 Preston, Ab-
stracts, 61; Challis, Real Prop.
(3rd ed.) 404. The statute in
terms (29 Car. II. c. 3, § 1)
provides that all leases, estates,
interests of freehold, terms of
years, etc., "made or created by
livery and seisin only, or by
parol, and not put in writing,
and signed by the parties so mak-
ing or creating the same, or their
agents thereunto lawfully author-
ized by writing, shall have the
force and effect of leases or
estates at will only."
§ 457]
Traistsfer Inter Vivos.
1723
however, a state statute requiring a signed writing for
tlie transfer of an interest in land has been construed as
requiring the writing to be signed, although it be
sealed/'' In the absence of a statutory requirement
that the instrument be "subscribed" by the grantor, the
signature may, it has been held, be in any part thereof."^
The signing may be by mark, although the person
so signing is able to write,' ^ or may be by the hand of
another person in the grantor's presence. '^'^ Even a
signature by another, made out of the grantor's pres-
ence,"^^ is sufficient if adopted by the grantor, as when
he subsequently acknowledges or delivers the instru-
ment as his act and deed.
When the conveyance purports to be by more than
one grantor, but all the grantors do not sign, the sig-
natures of those that do, followed by delivery by them,
73. Goodman v. Randall, 44
Conn. 321; Shlllock v. Gilbert, 23
Minn. 386; Mutual Benefit Life
Ins. Co. V. Brown, 30 N. J. Eq.
193; Isham v. Bennington Iron
Co., 19 Vt. 230; Adams v. Med-
sker, 25 W. Va. 127.
74. McConnell v. Brillhart. 17
111. 354, 65 Am. Dec. 661; Smith
V. Howell, 11 N. J. Eq. 349;
Devereux v. McMahon, 108 N. C.
134, 12 L. R. A. 205, 12 S. E.
902; Saunders v. Hackney, 10 Lea
(Tenn.) 194; Newton v. Emerson,
66 Tex. 142.
75. Meazels v. Martin, 93 Ky.
50, 18 S. W. 1028; Devereux v.
McMahon, 108 N. C. 134, 12 L.
R. A. 205; Truman v. Lore's
Lessee, 14 Ohio St. 144; Mackay
V. Easton, 19 Wall. (U. S.) 619,
22 L. Ed. 211.
76. Lewis v. . Watson, 98 Ala.
497, 22 L. R. A. 297, 39 Am. St.
Rep. 82, 13 So. 570; Jansen v.
McCahlll, 22 Cal. 563, 83 Am. Dec.
84; Middlesboro Waterworks v.
Neal, 105 Ky. 586, 49 S. W. 428;
Bird V. Decker,^64 Me. 550; Gard-
ner V. Gardner, 5 Cush. (Mass.)
483, 52 Am. Dec. 740; McMurtry
V. Brown, 6 Neb. 368; Mutual
Benefit Life Ins. Co. v. Brown,
30 N. J. Eq. 193; Lee v. Parker,
171 N. C. 144, 88 S. E. 217; Hays
V. Hays, 6 Pa. St. 368.
77. McClendon v. Equitable
Mortgage Co., 122 Ala. 384. 122
So. 30; O'Neal v. Judsonia State
Bank, 111 Ark. 589. 164 S. W.
295; Chivington v. Colorado
Springs Co., 9 Colo. 597; Ford v.
Ford, 27 App. D. C. 401; Reinhart
V. Miller, 22 Ga. 402, 68 Am. Dec.
506: Hailey First Nat. Bank v.
Glenn. 10 Idaho, 224. 109 Am.
St. Rep. 204; Kerr v. Russell.
Nye V. Lowry, 82 Ind. 316;
69 111. 666, 18 Am. Rep. 634;
Clough V. Clough, 73 Me. 487, 40
Am. Rep. 386; Bartlett v. Drake,
100 Mass. 174, 97 Am. Dec. 92;
1724 Eeal Propeety. [§ 458
will be sufficient to divest their interest, '^^ unless their
delivery was conditional upon signature by the others."^
§ 458. Sealing — Necessity. At common law, the
only recognized mode of authenticating a written in-
strument was by sealing, and consequently any con-
veyance in use at the present day which takes effect by
the common law, such as a grant of a right in another's
land, or a release, must be under seal, in the absence
of a statutory provision to the contrary.^*'
In a number of the states, by express provision of
statute, seals are no longer necessary, and the presence
of a seal on a conveyance does not affect the acquisi-
tion of rights thereunder.^^ In other states there is an
express requirement that a transfer of an interest in
land shall be under seal.^-
Since, after the passage of the Statute of Uses, a
conveyance by bargain and sale might be oral, the
mere paj^ment of a consideration being sufficient to
raise a use, which the statute would execute,^^ and since
moreover, the Statute of Enrollments, passed in recog-
nition of this fact, and requiring a bargain and sale
to be by writing under seal and enrolled, has been
Conlan v. Grace, 36 Minn. 276; Fuhr v. Dean, 26 Mo. 116, 69 Am.
Pierce v. Hakes, 23 Pa. St. 231; Dec. 484; Huff v. McCauley, 53
Newton v. Emerson, 66 Tex. 142; Pa. St. 206, 91 Am. Dec. 203;
78. Colton V. Leavey, 22 Cal. Cagle v. Parker, 97 N. C. 271, 2
496; Jackson v. Sanford, 19 Ga. S. E. 76.
14; Scott V. Whipple, 5 Me. 336; 81. 1 Stimson's Am. St. Law,
Harrelson v. Sarvis, 39 S. C. 14, § 1564 (B). See Wisdom v.
17 S. E. 368. Reeves, 110 Ala. 418, 18 So. 13;
79. Johnson v. Brook, 31 Miss. Pierson v. Armstrong, 1 Iowa.
17; Arthur v. Anderson, 9 Rich. 283, 63 Am. Dec. 440; Jerome v.
(S. C.) 234; Haskins v. Lombard, Ortman, 66 Mich. 668; Gibbs v.
16 Me. 140, 33 Am. Dec. 645. McGuire, 70 Miss. 646, 12 So.
See Post, § 462. 829.
80. Somerset v. Fogwell, 5 82. 1 Stimson's Am. St. Law,
Barn. & C. 875; Wood v. Lead- § 1564 (A).
bitter, 13 Mees. & W. 838; Hew- 83. Challis, Real Prop. 419,
lins V. Shippam, 5 Barn. & C. 420; Williams, Real Prop. (18th
229; Arnold v. Stevens, 24 Pick. Ed.) 196; 1 Hayes, Conveyancing
(Mass.) 109, 35 Am. Dec. 305; (5th Ed.) 76. See ante, § 428.
§ 458] Transfer Inter Vivos. 1725
generally regarded as not in force in this country, it
would seem that a seal is unnecessary, in the absence
of a state statute to the contrary, in the case of a con-
veyance taking effect under the Statute of Uses or un-
der a state statute. In a number of the states, ho^vever,
it has been decided or assumed that, even in the absence
of a local statutory requirement, a seal is necessary,
this view being sometimes based upon the assumption
that a conveyance of land is necessarily a **dced,"
which, since a deed means a sealed instrument, assumes
the very point in question.^*
Even when a seal is necessary to convey the legal
title, an unsealed conveyance will be etfective in equity,
it being there regarded as a contract for a conveyance,
specifically enforcible.*^
Sufficiency. At common law, an instrument
was sealed, usually, at least, by impressing some device
upon wax, which was made to adhere to the paper ;S^ but
at the present day an impression made by stamping
upon the paper on which the instrument is written,''^ or
84. Floyd v. Ricks, 14 Ark. Nat. Bank of North Bend v. Gage,
286, 58 Am. Dec. 374; Barrett v. 71 Ore, .373, 142 Pac. 539; Brink-
Hinckley, 270 111. 298, 110 N. E. ley v. Bethel, 9 Heisk. (Tenn.)
359; Osby v. Reynolds, 260 111. 786; Frost v. Wolf, 77 Tex. 455,
576, 103 N. E. 556; Switzer v. 19 Am. St. Rep. 761; Garten v.
Knapps, 10 Iowa, 72. 74 Am. Dec. Layton, 76 W. Va. 63, 84 S. E.
375; McLaughlin v. Randall. 66 1058.
Me. 226; Colvin v. Warford, 20 86. 3 Co. Inst. 169.
Md. 357; Robinson v. Noel, 49 87. Sugden, Powers (8th Ed.)
Mi.ss. 253; Jackson v. Hart, 12 232; Pillow v. Roberts, 13 How.
Johns. (N. Y.) 77. In Under- (U. S.) 472; Pillow v. Roberts,
wood V. Campbell, 14 N. H. 393, 12 Ark. 822; Hendee v. Pinkerton,
it seems to be considered that 14 Allen (Mass.) 381; Allen v.
the Statute of Enrollments is in Sullivan R. Co., 32 N. H. 446;
force in New Hampshire. Corrigan v. Trenton Delaware
85. Switzer v. Knapps, 10 Falls Co., 5 N. J. Eq. 52. Contra.
Iowa, 72, 74 Am. Dec. 375; Jewell, Bank of Rochester v. Gray, 2 Hill
V. Harding. 72 Me. 124; McCarley (N. Y.) 227; Warren v. Lynch. 5
V. Tippah County Sup'rs, 58 Johns. (N .Y.) 239. See 1 Am.
Miss. 483; Wadsworth v. Wendell, Law Rev. at p. 638.
5 Johns. Ch. fN. Y.) 224; First
R. P.— 34
1726
Real Property.
[§ 458
even a paper wafer or piece of paper gummed on the
face of the instrument,^^ is usually regarded as sufficient.
By statute in many states, a mere scroll or any other de-
vice marked on the paper on which the conveyance is
written is sufficient,^^ and in other states a similar view
iias been taken, in the absence of any exjjress statute.^"^
So, the writing of the word "Seal" in connection with
the signature has been regarded as a sufficient sealing.^^
A recital in the instrument that it is sealed is not
necessary in order to make the sealing effective, if
there is actually a seal.^- In a few decisions, however,
a different view has been taken w^hen the alleged seal
consisted of merely a scroll or other device which did
not of itself show that it was affixed as a seal.^^ A
statement in the instrument that it is sealed will not be
sufficient as a substitute for a seal.^^
88. Tasker v. Bartlett, 5 Cush.
(Mass.) 359; Turner v. Field, 44
Mo. 382; Corrigan v. Trenton
Delaware Falls Co., 5 N. J. Eq.
52.
89. 1 Stimson's Am. St. Law,
§ 1565.
90. Trasher v. Everhart. 3 Gill.
& J. (Md.) 246: Hudson v.
Poindexter, 42 Miss. 304; Hack-
er's Appeal, 121 Pa. St. 192;
Jones V. Logwood, 1 Wash. (Va.)
42. Contra, McLaughlin v. Ran-
dall, 66 Me. 226; Bates v. Boston
& N. Y. C. R. Co., 10 Allen
(Mass.) 251; Douglas v. Oldham,
6 N. H. 150; Warren v. Lynch,
5 Johns. (N. Y.) 239.
91. Cochran v. Stewart, 57
Minn. 499, 59 N. M. 543; White-
ley V. Davis' Lessee, 1 Swan
(Tenn.) 333. The word "Seal"
within a scroll has been decided
to be sufficient in some cases.
Hastings v. Vaughn. 5 Cal. 315;
Miller v. Binder, 28 Pa. St. 489;
English V. Helms, 4 Tex. 228.
Contra. Beardsley v. Knight, 4
Vt. 471.
92. Wing V. Chase, 35 Me.
260; Devereux v. McMahon, 108
N. C. 134. 12 L. R. A. 205, 12
S. E. 902; Proprietors of Mill
Dam Foundry Co. v. Hovey, 21
Pick. (Mass.) 417, 428; Taylor
V. Glaser, 2 Serg. & R. (Pa.) 502;
Comyns, Dig. "Fait" (A 2).
93. Bohannon v. Hough, 1
Miss. 461; Cromwell v. Tate's
Ex'r, 7 Leigh (Va.) 301, 30 Am.
Dec. 506; Corlies v. Vannote, 16
N. J. L. 324; Carter v. Penn, 4
Ala. 140. And see Buckingham v.
Orr, 6 Colo. 587. Compare Ash-
well V. Ayres, 4 Grat. (Va.) 283.
94. Armstrong v. Pearce, 5
Harr. (Del.) 551; Deming v. Bul-
litt, 1 Blackf. (Ind.) 241; Mc-
Pherson v. Reese, 58 Miss. 749;
Patterson v. Galliher, 122 N. C.
511. 29 S. E. 773; Taylor v.
Glaser, 2 Serg. & R. (Pa.) 502;
§ 459] Transfer Inter Vivos. 1727
The seal need not, and in fact usually is not, affixed
at the same time as or after the signing of the instru-
ment, it being sufficient that the party adopts, expressly
or impliedly, the seal already placed on the paper.^^
So, each of the parties executing the instrument need
not have a separate seal, one seal being sufficient if
adopted by all the j^arties signing.**^
§ 459. Witnesses. In some states witnesses, usual-
ly two in number, are necessarj'' in order to make a
conveyance valid as between the parties thereto. In
other states, no witnesses are required, while in some,
though witnesses are not necessary to render the con-
veyance valid as between the parties, they are necessary
for the purpose of proving the deed for record, in the
absence of an acknowledgment by the grantor.^"^
The witness need not be present at the actual
signing of the instrument by the grantor, provided the
latter acknowledges to him that it is his act, and ex-
l^ressly or impliedly requests him to attest the instru-
ment.*^^ The witnesses must sign the instrument, their
signatures being usually placed under a clause, "Signed,
sealed, and delivered in the presence of" or some other
expression which serves to show the purpose of their
signature being used.**^
Mitchell V. Parham, Harp. (S. C.) 521; Bowman v. Robb, Pa. St.
3; Davis v. Judd, 6 Wis. 85; 302; Lambden v. Sharp, 9 Humph.
Burnette v. Young, 107 Va. 184, (Tenn.) 224; Yale v. Zanders, 4
95. Sheppard's Touchstone, 54, Wis. 96.
57; Reg. v. Inhabitants of St. 97. 1 Stimson's Am. St. Law,
Paul, 7 Q. B. 232; Ball v. Dun- § 1566.
sterville, 4 Term R. 313; Ash well 98. Jackson v. Phillips, 9 Cow.
V. Ayres, 4 Grat. (Va.) 283. (N. Y.) 94. 113; Tate v. Law-
96. Carter V. Chandron, 21 Ala. rence, 11 Heisk. (Tenn.) 503:
88; Davis v. Burton, 4 111. 41, 36 Clements v. Pearce, 63 Ala. 284;
Am. Dec. 511: Bradford v. Ran- Mulloy v. Ingalls, 4 Neb. 115.
dall, 5 Pick. (Mass.) 496; Luns- See Little v. White, 29 S. C.
ford V. La Motte Lead Co., 54 170; Poole v. Jackson, 66 Tex.
Mo. 426; Northumberland v. Cob- 380, 1 S. W. 75; 1 Stimson's Am.
leigh, 59 N. H. 250; Pickens v. St. Law, § 1567.
Rymer, 90 N. C. 283, 47 Am. Rep. 99. The signature of the wit-
1728
Real Peopbbty.
[§ 460
The statutes liaA^e usually been construed as re-
quiring that the witness be competent, at the time of
his attestation of the conveyance, to testify in regard
to its execution in ease of litigation between the parties,
with the result that his attestation is of no effect for
the purpose of validating the conveyance, if he is not so
competent. ^'2
§ 460. Acknowledgment. In some states the stat-
ute requires a conveyance to be acknowledged by the
grantor before an official in order to make it effective
even as betw^een the parties," and in a number of states
an acknowledgment is necessary to the validity of a
conveyance by a married woman. More usually, how-
ever, the requirement of acknowledgment is imposed
only as a preliminary to the record of a conveyance,
for the purpose of charging a subsequent purchaser
with notice thereof,^ Avith the result that the record of a
ness, it has been decided, may be
by mark. Brown v. McCormick,
28 Mich. 215; Devereux v. Mc-
Mahon, 102 N. C. 284, 9 S. E. 635.
1-2. So it has been held that
one having a pecuniary interest
in the conveyance is disqualified.
Winsted Sav. Bank & Building
Ass'n v. Spencer, 26 Conn. 195;
Child V. Baker, 24 Neb. 1'88.
And a grantor cannot witness
the execution of the instrument
by his co-grantor. Townsend v.
Downer, 27 Vt. 119.
A wife or husband of a grant-
or has also been regarded as
disqualified. Third Nat. Bank of
Chattanooga v. O'Brien, 94 Tenn.
38, 28 S. W. 293; Johnston v.
Slater, 11 Grat. (Va.) 321; Cor-
bett V. Norcross, 35 N. H. 99.
But in some cases it has been
held that the witness need not
be competent to testify at the
time of its execution, provided he
can testify when called to prove
the execution in court. Frink
V. Pond, 46 N. H. 125; Doe d.
Johnson v. Turner, 7 Ohio, 216,
pt. 2.
3. See Lewis v. Herrera, 10
Ariz. 74, 85 Pac. 245; Parrott v.
Kumpf, 102 111. 423; Hout v. Hout,
20 Ohio St. 119.
4. 1 Stimson's Am. Stat. Law,
§ 1570.
5. See e g.; Green v. Abra-
ham, 43 Ark. 420; Lee v. Mur-
phy, 119 Cal. 364, 51 Pac. 549;
Edwards v. Thorn, 25 Fla. 222,
5 So. 707; New England Mort-
gage Security Co. v. Ober, 84 Ga.
294, 10 S. E. 625; Harris v. Reed,
21 Idaho, 364, 121 Pac. 780;
Graves v. Graves, 6 Gray (Mass.)
391; Thompson v. Scheid, 39
Minn. 102, 12 Am. St. Rep. 619,
38 N. W. 801; Ligon v. Barton,
§ 460] Transfer Inter Vivos. 1729
conveyance not properly acknowledged will have no
such effect."' The acknowledgment has, moreover, in a
number of states, the effect of rendering the conveyance
admissible in evidence without further proof of its
execution.^
Qualifications cf officer. The statute ordinarily
requires the acknowledgment to be made, if within the
state, before a judge, clerk of court, justice of the peace,
or notary public. The provisions of the statutes as to
acknowledgment in another state sometimes provide
that it may be taken by named classes of officials of the
latter state, sometimes by commissioners of deeds ap-
pointed for such state, and sometimes by any officials of
the other state authorized by the statutes of such state
to take acknowledgments. The statutes also contain,
almost invariably, specifie provisions as to the officials
who may take acknowledgments in foreigTi countries
for use in the state in which the statute is passed.
It is generally agreed that an officer who is benefi-
cially interested in the transaction cannot take an
acknowledgment.'^ Consequently the grantee cannot
take the grantor's acknowledgment,^ nor can either the
88 Miss. 135, 40 So. 555; Finley There is authority for the view
V. Babb, 173 Mo. 257, 73 S. W. that interest does not disqualify
180; Brown v. Manter, 22 N. H. if there is no other officer who
468; Bradley v. Walker, 138 N. can take the acknowledgment.
Y. 291, 33 N. E. 1079; Geneseo Stevenson v. Brasher, 90 Ky. 23.
First Nat. Bank v. National Live 13 S. W. 242; Lewis v. Curry, 74
Stock Bank, 13 Okla. 719, 76 Pac. Mo. 49. Contra, semhle, Hammers
130; Watts v. Whetstone, 79 v. Dole, 61 111. 307.
S. C. 357, 60 S. E. 703. 8. Lee v. Murphy, 119 Cal.
6. 1 Stimson's Am. St. Law, 364, 51 Pac. 549; Brereton v.
§ 1572; 4 Wigmore, Evidence, § Bennett, 15 Colo. 254; Hogans
1676. V. Carruth, 18 Fla. 587; Florida
7. But in Tennessee, apparent Savings Bank & Real Estate
ly, interest does not disqualify Exchange v. Rivers, 36 Fla. 575,
one to take an acknowledgment. 18 So. 850; Hammers v. Dole,
Cooper V. Hamilton Perpetual 61 111. 307; West v. Krebaum, 88
Bldg. etc. Ass'n, 97 Tenn, 285, 33 111. 263; Wilson v. Traer, 20
L. R. A. 338, 56 Am. St. Rep. Iowa, 231; Greenlee v. Smith, 4
795, 37 S. W. 12. Kan. App. 733, 46 Pac. 543;
1730
Real Property.
[§ 460
trustee in,^ or a beneficiary under/*' a deed of trust
take the acknowledgment of the grantor therein.
Whether one grantor can take the acknowledgment of
his cograntor appears to be uncertain.^ ^ By the weight
of authority an officer is disqualified to take an ac-
knowledgment in which a corporation is beneficially in-
terested if he is a stockholder therein, ^^ but not if
Beaman v. Whitney, 20 Me. 413;
Laprad v. Sherwood, 79 Mich.
520, 44 N. W. 943; W^asson v.
Connor, 54 Miss. 351; Hainey
V. Alberry, 73 Mo. 427; Amick v.
Woodworth, 58 Ohio St. 86, 50 N.
E. 437; Hunton v. Wood, 100
Va. 54, 43 S. E. 186.
But in Murray v. Tulare Irri-
gation Co., 120 Cal. 311, 49 Pac.
463, 52 Pac. 586, it was held
that an acknowledgment taken
by one of several grantees,
each of whom took "a separate
and defined interest" was good as
to all the grantees except that
one. And in Darst v. Gale, 83
111. 136, a substantially similar
view was taken as to an acknowl-
edgment before one of several
trustees to whom a mortgage
was made.
9. Muense v. Harper, 70 Ark.
309, 67 S. W. 869; Darst v. Dale,
83 111. 136; Holden v. Brimage,
72 Miss. 228, 18 So. 383; German
American Bank v. Carondelet
Real Estate Co., 150 Mo. 570,
51 S. W. 691; Lance v. Tainter,
137 N. C. 249, 49 S. E. 211;
Rothschild v. Daugher, 85 Tex.
332, 16 L. R. A. 719, 34 Am.
St. Rep. 811, 20 S. W. 142; Bow-
den v. Parrish, 86 Va. 67, 19
Am. St. Rep. 873, 9 S. E. 616;
Hunton v. Wood, 101 Va. 54.
43 S. E. 186. Contra, Weidman
V. Templeton, (Tenn. Ch. App.)
61 S. W. 102.
10. Wasson v. Connor, 54 Miss.
351; Long v. Crews, 113 N. Car.
256, 18 S. E. 499; Baxter v.
Howell, 7 Tex. Civ. App. 198, 26
S. W. 453.
11. That he can do so, see
Greve v. Echo Oil Co., 8 Cal.
App. 275, 96 Pac. 904. Contra,
People V. Railroad Comm'rs, 105
N. Y. App. Div. 273, 93 N. Y.
Supp. 584 (certificate of incor-
poration).
12. Hayes v. Southern Home
Bldg, etc., Ass'n, 124 Ala. 663,
82 Am. St. Rep. 216, 26 So. 527;
Ogden Bld'g, etc., Ass'n v. Mensch,
196 111. 554, 63 N. E. 1049;
Steger v. Travelling Men's Bldg
etc., Ass'n, 208 111. 236, 100 Am.
St. Rep. 225, 70 N. E. 236; Kothe
v. Krag Reynolds. 20 Ind. App.
293, 50 N. E. 594; Smith v.
Clark, 100 Iowa, 605, 69 N. W.
1011; Wilson v. Griess, 64 Neb.
792, 90 N. W. 866; Bexar Bldg.
etc., Ass'n v. Heady, 21 Tex. Civ.
App. 154, 50 S. W. 1079, 57 S. W.
583; Boswell v. Laramie First
Nat. Bank, 16 Wyo. 161, 92 Pac.
624.
That a stockholder Is not dis-
qualified to take the acknowl-
edgment of a mortgage to the
corporation, see Read v. Toledo
Loan Co., 68 Ohio St. 280, 62
§ 460]
Transfer Ixter Vivos.
1731
he is a corporate officer and not a stockholder. ^"^ One is
not disqualified merely because he is the attorney/^ or
the agent or employee, of an interested party.^^ Nor is
one disqualified to take an acknowledgment by the fact
that he is related to an interested party/^ and even
the husband of the grantee, it has been decided, may
take the grantor's acknowledgment.^"
Duties of officer. The officer, in taking the
acknowledgment, must comply with all the requirements
of the statute. The statute invariably requires him to
satisfy himself as to the identity of the person making
the acknowledgment, and occasionally provides the man-
ner in which he shall so satisfy himself, as by sworn
witnesses. In the absence of any prescribed method of
satisfying himself of the grantor's identity, the suffi-
ciency of the acknowledgment cannot be questioned be-
cause the officer acts merely on an introduction bv a
L. R. A. 338, 56 Am. St. Rep.
663, 67 N. E. 29. And this
though the stockholder was also
an officer of the corporation
Keene Guaranty Sav. Bank v.
Lawrence, 32 Wash. 572; Cooper
V. Hamilton Perpetual Building
& Loan Ass'n, 97 Tenn. 285, 33
L. R. A. 338, 56 Am. St. Rep.
795, 37 S. W. 12.
13. Woodland Bank v. Ober-
haus, 125 Cal. 320, 57 Pac. 1070;
Florida Sav. Bank v. Rivers, 36
Fla. 577. 18 So. 850; Horbach
V. Tyrrell, 48 Neb. 514, 37 L. R.
A. 434, 67 N. W. 485; Ogden
Bldg & Loan Ass'n v. Mensch,
196 111. 554, 89 Am. St. Rep.
330, 63 N. E. 1049; Bardsley
V. German American Bank, 113
Iowa, 216, 84 N. W. 1041; Keene
Guaranty Sav. Bank v. Lawrence,
32 Wash. 572, 73 Pac. 680.
14. Brown v. Parker, 97 Fed
446. 38 C. C. A. 261; Bierer v.
Fretz, 32 Kan. 329, 4 Pac. 284;
Helena First Nat. Bank v. Rob-
erts, 9 Mont. 323, 23 Pac. 718;
Havemeyer v. Dahn, 48 Neb. 536,
33 L. R. A. 332, 58 Am. St. Rep.
706, 67 N. W. 489.
15. Castetter v. Stewart, 70
Neb. 815, 98 N. W. 34; Wachovia
Nat. Bank v. Ireland, 122 N. C.
571, 29 S. E. 835; Penn v. Gar-
vin, 56 Ark, 511, 20 S. W. 410.
16. Helena First Nat. Bank v.
Roberts, 9 Mont. 323, 23 Pac.
718; Lynch v. Livingston, 6
N. Y. 422; McAllister v. Purcell,
124 N. C. 262, 32 S. E. 715.
17. Remington Paper Co. v.
O'Dougherty, 81 N. Y. 474; Nixon
V. Post, 13 Wash. 181, 43 Pac.
23; Kimball v. Johnson, 14 Wis.
674 (mortgage). But the con-
trary has also been decided, in
cases in which the grantor whose
acknowledgment was taken was
a married woman. Jones v.
1732 Real Property. [§ 460
third person,^'' however this may affect the question of
liis liability for a false certificate in this regard.^^ If
the person making the acknowledgment speaks only a
foreign language, the officer should employ an interpre-
ter.2o
Certificate, The stakite almost invariably re-
quires the officer M-ho takes the acknowledgment to
write upon, or attach to, the instrument, a certificate
of acknowledgment, that is, a statement, under his
hand, and ordinarily under his seal, showing that the
acknowledgment was made. The certificate must, it is
generally recognized, show a compliance with the statu-
tory requirements, and if the statute contains specific
provisions as to what the certificate must show, an
omission to comply therewith renders it invalid. It
must, in most jurisdictions, show the official character
of the officer, that the acknowledgment was in fact made
before him by the party w^ho executed the instrument,
and that such person was personally known to him, or
that he was satisfied or informed as to the identity of
such person. But the certificate is to be construed with
reference to the instrument to which it is appended,
and consequently omissions or errors therein, not per-
taining to the fact of acknowledgment itself, may usual-
ly be corrected by reference to the language of the
conveyance.- 1 And, generally speaking, a substantial
Porter, 59 Miss. 628; Silcock v. Cal. 486: Waltee v. Weaver, 57
Baker, 25 Tex. Civ. App. 508, Tex. 569.
61 S. W. 939. But in Micliigan an acknowl-
18. Nippel V. Hammond, 4 edgment tlirough an Interpreter
Col. 211; Wood v. Bach, 54 Barb. has been held to be insufficient.
(N. y.) 1.34. See Lindley v. Dewey v. Campau, 4 Mich. 565
Lindley, 92 Tex. 446, 49 S. W. Harrison v. Oakman, 56 Mich.
573. 390, 23 N. W. 164.
19. See Barnard v. Schuler, 100 21. Carpenter v. Dexter, 8
Minn. 289, 110 N. W. 966; Hat- Wall. (U. S.) 513; Frederick v.
ton v. Holmes, 97 Cal. 208, 31 Wilcox, 119 Ala. 355, 72 Am. St.
Pac. 1131. Rep. 925, 24 So. 582: Summer v.
20. Norton v. Meader, 4 Sawy. Mitchell, 29 Fla. 179, 14 L. R. A.
603; De Arnaz v. Escandon, 59 815, 30 Am. St. Rep. 106, 10 So.
§ 460]
Transfer Inter Vivos.
173:;^
comiDliance with the statutory requirement is sufficient,
an adherence to the actual language of the statute be-
ing regarded as unnecessary.-^ Oral evidence, how-
ever, is not admissible in order to prove an essential
fact which was by mistake omitted from the certificate.-^
In some states, by statute, the certificate is merely
prima facie evidence of the facts which it recites, and
its falsity may be shown by extraneous evidence.^"* In
the absence of such a statutory provision, a certificate
of acknowledgment is usually regarded as conclusive
in regard to the matters as to which the officer is re-
562; Milner v. Nelson, 86 Iowa.
452, 53 N. W. 405; Kelly v.
Rosenstock, 45 Md. 389; Bruns-
■wick-Balke-Collender Co. v.
Brackett, 37 Minn. 58, 33 N. W.
214; Owen v. Baker, 101 Mo. 407.
20 Am. St. Rep. 618; Claflin v.
Smith, 15 Abb. N. Cas. (N. Y.)
241; Fuhrman v. London. 13
Serg & R. (Pa.) 386, 15 Am.
Dec. 608.
22. Kelly v. Calhoun, 95 U.
S. 710, 24 L. Ed. 544; Frederick
V. Wilcox, 119 Ala. 355, 72 Am.
St. Rep. 925; Jacoway v. Gaiilt,
20 Ark. 190; Goode v. Smith, 8
Cal. 581; Wilson v. Russsii. 4
Dak. 376, 31 N. W. 645; De-
launey v. Burnett, 9 111. 454;
Martin v. Davidson, 3 Bush
(Ky.) 572; Bennett v. Knowles,
66 Minn. 4, 68 N. W. Ill; Gross
V. Watts, 206 Mo. 373, 121 Am. St.
Rep. 662, 104 S. W. 30; Torrey
V. Thayer, 37 N. J. L. 339; Ab-
rams v. Rhoner, 44 Hun 511;
Etheridge v. Ferebee, 31 N. C.
312; Garton v. Hudson-Kimberly
Pub. Co., 8 Okla. 631; Jamison
V. Jamison, 3 Whart. (Pa.) 457.
31 Am. Dec. 536: Timber v.
Desparois, 18 S. D. 587, 101 N.
W. 879: Hughes v. Powers. 99
Tenn. 480, 15 Lea, 683; Wilson
V. Simpson, 80 Tex. 279. 16 S.
W. 40: Welles v. Cole, 6 Gratt.
(Va.) 645; Bensimer v. Fell, 35
W. Va. 15, 29 Am. St. Rep. 774.
12 S. E. 1078.
23. Elliott V. Piersol's Lessee.
1 Pet. (U. S.) 328; Cox v. Hol-
comb, 87 Ala. 589. 13 Am. St.
Rep. 79; Ennor v. Thompson, 46
111. 214; Barnett v. Shankleford,
6 J. J. Marsh (Ky.) 532, 22 Am.
Dec. 100; Willis v. Gattman, 53
Miss. 721; Salt v. Anderson, 71
Neb. 826, 99 N. W. 678; Wynne
V. Small, 102 N. C. 133, 8 S. E.
912; Harty v. Ladd, 3 Ore. 353;
Looney v. Adamson, 48 Tex. 619;
Harrisonburg First Nat. Bank v.
Paul, 75 Va. 594, 40 Am. Rep.
740.
24. See Moore v. Hopkins, 83
Cal. 270, 17 Am. St. Rep. 248;
Tuten V. Gazan, 18 Fla. 751;
Carver v. Carver, 97 Ind. 497;
Peoples Gas Co. v. Fletcher, 81
Kan. 76, 41 L. R. A. N. S. 1161.
105 Pac. 34; Ronier v. Conter. 53
Minn. 171, 54 N. VS^. 1052; Pierce
V. Georger, 103 Mo. 540, 15 S. W.
848; McKay v. Lasher, 121 N.
Y. 477, 24 N. E. 711.
1734
Eeal, Propekty.
[§ 460
quired to certify,^^ but the fact that there was no ac-
knowledgixieiit whatever may be shown in contradiction
of the certificate.^^ As between the parties, moreover, evi-
dence is always admissible to show that the acknowledg-
ment was obtained by fraud or imposition, in which the
grantee participated, or of which he knew,^'^ but this can-
not be shown as against a person ignorant of the f raud,^^
25. Grider v. American Free-
hold Land Mortg. Co., 99 Ala.
281, 42 Am. St. R&p. 58; Petty
V. Grlsard, 45 Ark. 117; Ford v.
Ford, 27 App. D. C. 401, 6 L. K.
A. (N. S.) 442; Graham v.
Anderson, 42 111. 515, 92 Am. Dec.
89; Johnston v. Wallace, 53 Miss.
.333, 24 Am. Rep. 699; Pereau v.
Frederick, 17 Neb. 117, 22 N.
235; Mutual T.tfe Ins. Co. v.
Corey, 135 N. Y. 326, 31 N. E.
1095; Moore v. Fuller, 6 Ore. 275,
25 Am. Rep. 524; Heilman v.
Kroh, 155 Pa. St. 1, 25 Atl. 751;
Ronner v. Welcker, 99 Tenn. 623,
42 S. W. 439; Wheelock v. Cavitt,
91 Tex. 679, 66 Am. St. Rep. 920.
So it has been held that the
certificate cannot be impeached
by a showing that the acknowl-
edgment was taken by telephone.
Banning v. Banning, 80 Cal. 271,
13 Am. St. Rep. 156.
26. Grider v. American Free-
hold Land Mortg. Co., 99 Ala.
281, 42 Am. St. Rep. 58; Meyer
V. Gossett, 38 Ark. 377; Le
Mesnager v. Hamilton, 101 Cal.
533, 40 Am. St. Rep. 81; Smith
V. Ward, 2 Root (Conn.) 374, 1
Am. Dec. 80; Lewis v. McGrath,
191 in. 401, N. E. 61 N. E. 135;
Morris v. Sargent, 18 Iowa, 90;
O'Neil V. Webster, 150 Mass. 572,
23 N. E. 2.S5; Spivey v. Rose,
120 N. C. 163, 26 S. E. 701;
Williams v. Carskadden, 36 Ohio
St. 664; Michener v. Cavender,
38 Pa. St. 334, 80 Am. Dec. 486;
Wheelock v. Cavitt, 91 Tex.
679, 66 Am. St. Rep. 920.
27. Grider v. American Free-
hold Land Mortg. Co., 99 Ala.
281, 42 Am. St. Rep. 58; Chiving-
ton V. Colorado Springs Co., 9
Colo. 597; Eyster v Hatheway,
50 111. 521, 99 Am. Dec. 537:
Aultman-Taylor Co. v. Erasure,
95 Ky. 429, 26 S. W. 5; Central
Bank of Frederick v. Copeland,
18 Md. 305, 81 Am. Dec. 597.
O'Neil V. Webster, 150 Mass. 572,
23 N. E. 275; Allen v. Lenoir, 53
Miss. 32] : Williamson v. Car-
skadden, 36 Ohio St. 664; Cover
V. Manaway, 115 Pa. St. 338, 2
Am. St. Rep. 552; Pierce v. Fort,
60 Tex. 464.
28. De Arnaz v. Escandon, 59
Cal. 486; Ladew v. Paine, 82 111.
221; Johnston v. Wallace, 53
Miss. 331, 24 Am. Rep. 699;
Moore v. Fuller, 6 Ore. 272. 25
Am. Rep. 524; Londen v. Blythe,
27 Pa. St. 22, 67 Am. Dec. 142:
Pennsylvania Trust Co., v Kline.
192 Pa. St. 1, 43 Atl. 401;
Campbell v. Harris Lithia
Springs Co., 74 S. C. 282, 114
Am. St. Rep. 1001; Cason v.
Cason, 116 Tenn. 173, 93 S. W.
89; Pierce v. Fort, 60 Tex. 464;
§ 460] Transfer Inter Vivos. 17o5
at least if a purchaser for value.^^
It has been quite frequently decided that, as against
a purchaser for value and without notice, if the certifi-
cate is regular on its face, it cannot be showTi that there
was no valid acknowledgment by reason of lack of
authority in the officer, as when he was beneficially
interested, or that he undertook to act outside of his
jurisdiction. The tendency of the later authorities is
to regard the instrument as duly acknowledged, for
the purpose of making its record effective as construc-
tive notice, in favor of an innocent purchaser, in spite
of the existence of such a defect, not apparent on the
record or the face of the certificate."^*^ In a consider-
able number of decisions, however, any such qualifica-
tion upon the right to question the validity of the ac-
knowledgment is ignored.^^
By married woman. In some states, a con-
veyance in which a married woman joins, whether for
the purpose of conveying her own property, or in order
to release her rights in her husband's property, must,
in order to be etfective as against her, be acknowledged
29. Lewars v. Weaver, 121 Pa. 92 Pac. 624, 93 Pac. 661; National
St. 268, 15 Atl. 514; Edwards v. Bank of Fredericksburg, 1
Boyd, 9 Lea (Tenn.) 204. Hughes (U. S.) .'57 per Waite, C.
30. Ogden Bldg., etc., Ass'n v. J.
Mensch, 196 lU. 554, 89 Am. St. 31. See Edinburgh American
Rep. 330, 63 N. E. 1049; Bank of Land Mortg. Co. v. Peoples, 102
Benson v. Hove, 45 Minn. 40, 47 Ala. 241, 14 So. 656; Leonhard
N. W. 449; Stevens v. Hampton, v. Flood, 68 Ark. 162, 56 S. W.
46 Mo. 404; Morrow v. Cole, 58 781; Kothe v. Krag-Reynolds Co.,
N. J. Eq. 203. 42 Atl. 673; Heil- 20 Ind. App. 293, 50 N. E. 594;
brun V. Hammond, 13 Hun 474; Wilson v. Traer, 20 Iowa, 231;
Blanton v. Bostic, 126 N. C. 418, Farmers, etc., Bank v. Stockdale,
35 S. E. 1035; Ardmore National 121 Iowa, 748, 96 N. W. 732;
Bank v. Briggs, 20 Okla. 427, 23 Smith v. Clark, 100 Iowa, 605.
L. R. A. (N. S.) 1074, 94 Pac. 533; 69 N. W. 1011; Groesbeck v.
Peterson v. Lowry, 48 Tex. 408; Seeley, 13 Mich. 329; Davis v.
Corey v. Moore, 86 Va. 721. 11 Beazley, 75 Va. 491; Hunton v.
S. E. 114; BosweU v. First Nat. Wood, 101 Va. 54. 43 S. E. 186.
Bank of Laramie, 16 Wyo. 161,
1736 Keal Pkoperty. [§ 461
by her before the officer after a private examination by
liim to ascertain that she executes it voluntarily and
without compulsion from her husband, and the certiti-
cate of the officer must state that he so examined her,
and that she acknowledged the instrument to be her
free and voluntary act. In some of the other states,
while a private examination is not necessary, the certi-
ficate must contain such a statement as to the free and
voluntary nature of her act.^^ The officer is also occa-
sionally required by the statute to ascertain, before
taking the acknowledgment, that she understands the
nature of the instrument."'^ The number of states in
which an acknowledgment is thus necessary to the
validltv of a conveyance by a married w^oman is, how-
ever, steadily diminishing, the tendency of recent legis-
lation being to enable ner to dispose of her property as
if a feme sole.
Proof in place of acknowledgment. In many
states the statute authorizes, as an alternative to ac-
knowledgment, and as preliminary to record, proof of
the authenticity of the instrument, ordinarily by the
evidence of the attesting witnesses. In some states such
proof is authorized only when the grantor refuses to
make acknowledgment, or dies before making it. In
some it is authorized when the acknowdedginent or certifi-
cate thereof is defective. ^^
§ 461. Delivery. A written instrument, regarded
as a constitutive or dispositive act, becomes legally
operative by reason either (1) of the mutual action of
two or more persons, parties in interest thereto, or (2)
of the action of one person, from whom the writing
32. 1 Stimson's Am. St. Law, v. Reese. 1G5 Pa. St. 158, 30 Atl.
§ 6501. 722; Mettler v. Miller, 129 111.
33. See Norton v. Davis, 83 630, 22 N. E. 529.
Tex. 32, 18 S. W. 4^5; Drew v. 34. 1 Stimson's Am. St. Law,
Arnold, 85 Mo. 128; Tavenner v. §§ 1590-16ii6.
Barrett, 21 W. Va. 656; Spencer
§ 461] Transfer Inter Vivos. 17117
may be regarded as issuing. The mutual action of two
or more persons is required in the case of what are
known as simple contracts, while all other instruments,
by the theory of the English common law,"^ become
legally operative by the action of one party only. Of
such other instruments, some are said to take eifect
by delivery, this term serving to designate the final act
by which one who has previously signed the instrument,
or both signed and sealed it, signifies his intention that
the instrument shall have a legal operation, and so
realizes his intention in fact. Conveyances of land, in-
cluding leases, contracts under seal, mortgages of land
and of chattels, deeds of gift, insurance policies, and
promissory notes, take effect by delivery. Of the in-
struments which, while becoming operative by the action
of one person alone, are not said to take effect by
delivery, the most important class, perhaps the only
class, consists of testamentary instruments, wills. But
though, in the case of a will, there is no requirement of
delivery under that name, nevertheless an instrument
ordinarily becomes operative as a will only by virtue
of a final expression of intention by the maker to that
effect, such expression usually taking the form, by force
of statute, of a declaration in the presence of witnesses
of an intention that the instrument shall be legally
operative, or of a request addressed to witnesses to
attest the signature thereto, ])rovided they accede to the
request."*^ Such final expression of intention in the case
of a will is the equivalent of the final expression of in-
tention by means of delivery in the case of an instru-
ment inter vivos.
The expression "delivery," as applied to a written
instrument, had its inception, it appears,''^ in connection
with written conveyances of lands, the manual transfer
35. Post, § 463, note 7. Series) §§ 298, 302, 313; 2 Pollock
36. Post, § 469. & Maitland, Hist. Eng. Law, 85,
37. Brissaud, French Private 86.
h'dvf, (Continental Legal History
1738 liEAL Pkopekty, [*^ 461
or "deliver}^" of which was, in early times, upon parts
of the continent of Europe, regarded as in effect a
symbolical transfer of the land itself, analogous to
livery of seisin. And not only was the notion of physi-
cal delivery of the instrument applied in connection
with the transfer of land, hut it was applied also in con-
nection with written evidences of contract, the physical
transfer of the document being necessary to make it
legally operative, and being effective to that end.^^ The
view that a transfer of land could be effected by means
of the manual transfer of a writing was originally
adopted in England to but a limited extent, but in so
far as the courts recognized the effectiveness of a writ-
ten instrument for the purpose of transfer or of con-
tract, they adopted the continental conception of a
physical change of possession thereof as a prerequisite
to its legal operation, and accordingly the necessity of
delivery became established in connection with various
classes of written instruments as they came to be recog-
nized by the courts, particularly deeds of grant, con-
tracts under seal, the only class of contract recognized
in the earlier history of our law, and promissory notes.^®
^^Hiile, as before stated, the necessity of delivery
in connection with the instruments last named, and
others of an analogous character, is stiU fully recog-
nized, the crude conception of a manual transfer of the
instrument as the only means of making it legally
effective, which gave birth to the expression ^'delivery"
as used in this connection, has been superseded by the
more enlightened view that whether an instrument has
been delivered is a question of intention merely, there
being a sufficient delivery if an intention appears that
it shall be legally operative,^" however this intention
38. Brissaud. op. cit. § 370; 2 Law Quart. Rev. at p. 17.
Pollock & Maitland, 190. 40. Fitzpatrick v. Briginan,
39. As to promissory notes, 130 Ala. 450, 30 So. 500; Russell
see article by Professor W. S. v. May, 77 Ark. 89, 90 S. W. 617;
Holdsworth, "The Early History Follmer v. Rohrer, 158 Cal. 755,
of Negotiable Instruments," 31 112 Pac. 544; Flynn v. Flynn, 17
§ 461]
Transfer Inter Vn^os.
173:9
may bo indicated.^^ Accordingly, it is generally agreed
that delivery does not necessarily involve any manual
transfer of the instrument,^ ^ ^^^^ provided an intention
is indicated that the deed shall take effect, the fact that
the grantor retains possession of the instrument is im-
Idaho, 147, 104 Pac. 1030; Bowers
V. Cottrell, 15 Idaho, 221, 96 Pac.
936; Riegel v. Riegel, 243 111.
626, 90 N. E. 1108; Burkholder
V. Casad, 47 lud. 418; Sheldon
V. Crane, 146 Iowa, 461, 125 N.
W. 238; Doty v. Barker, 78 Kan.
636, 97 Pac. 964; Burk v. Sproat,
96 Mich. 404, 55 N. W. 985; Inger-
soU V. Odendab.i, 136 Minn. 428.
162 N. W. 525; Coulson v. Coul-
son, 180 Mo. 709, 79 S. W. 473;
Martin v. Flaharty, 13 Mont. 96,
32 Pac. 187, 19 L. R. A. 242, 40
Am. St. Rep. 415; Flannery v.
Flannery, 99 Neb. 557, 156 N. W.
1065; Vreeland v. Vreeland, 48 N.
J. Eq. 56, 21 Atl. 627; Fisher v.
Hall, 42 N. Y. 416; Lee v. Parker
171 N. C. 144, 88 S. E. 217;
Mitchell's Lessee v. Ryan, 3 Ohio
St. 377; Johnson v. Craig, 37
Okla. 378, 130 Pac. 581; Sapping-
field V. King,— Ore.— 8 L. R. A.
N. S. 106; Hannah v. Swarnet, 8
Watts (Pa.) 11; McCartney v.
McCartney, 93 Tex. 359, 55 S. W.
310; Matson v. Johnson, 48 Wash.
256, 125 Am. St. Rep. 924, 93
Pac. 324; Glade Coal Min. Co. v.
Harris. 65 W. Va. 152, 63 S. E.
873. In Cox v. Schnerr, 172 Cal.
371, 156 Pac. 509, it is in effect
said that though the grantor In-
tends, in handing the instrument
to the grantor, to make it oper-
ative as a conveyance, there is
no delivery if it is procured by
fraud. This is, it is submitted,
erroneous. The intention exists,
and hence there is a delivery,
though the intention is based
on a misconception wrongfully
induced. There are almost num-
berless decisions recognizing that
the legal title passes in such
case.
41. Delivery, being a question
of intention, is one of fact, for
the jury. Murray v. Stair, 2
Barn. & C. 82; Fitzpatrick v.
Brigman, 133 Ala. 242, 31 So.
940; Donahue v. Sweeny, 171 Cal.
388, 153 Pac. 708; Emmons v.
Harding, 162 Ind. 154, 1 Ann.
Cas. 864, 70 N. E. 142; Brann v.
Monroe, 11 Ky. L. Rep. 324;
Bishop V. Burke, 207 Mass. 133,
'^3 N. E. 254; O'Rourke v.
O'Rourke, 130 Minn. 292, 153 N.
W. 607; Hurlburt v. Wheeler, 40
N. H. 73; Jones v. Swayze, 42
N. J. L. 279; Crain v. Wright,
36 Hun, 74, 114 N. Y. 307; Ar-
f'hambeau v. Edmunson, 87 Ore.
476, 171 Pac. 186; Fisher v.
Kean, 1 Watts (Pa.) 278; Kana-
well V. Miller, — Pa.— 104 Atl.
861; McCartney v. McCartney, 93
Tex. 359, 55 S. W. 310; Dwinell
V. Bliss, 58 Vt. 353. 5 Atl. 317;
Holly St. Land Co. v. Beyer, 48
Wash. 422, 93 Pac. 1065; Garrett
V. Goff, 61 W. Va. 221, 56 S. E.
351; Kittoe v. Willey, 121 Wis.
548, 99 N. W. 337.
42. Gulf Red Cedar Co. v.
Crenshaw. 169 Ala. 606. 53 So.
812; Faulkner v. Feazel. 113 Ark.
289, 168 S. W. 568; Smith v.
1740
Eeal Peoperty.
[§ 461
material.^^ So, while it is frequently said, both by the
older and later authorities, that delivery may be made
to a third person for the benefit of the grantee,^* mean-
May, 3 Penn. (Del.) 233, 50 Atl.
59; Benneson v. Aiken, 102 111.
28-1, 40 Am. Rep. 592; Hoyt v.
Northup, 256 in. 604, 100 N. E.
164; Prince v. Prince, 258 111.
304, 101 N. E. 608; Fitzgerald v.
Goff, 99 Ind. 28; Newton v.
Bealer. 41 Iowa, 334; Pentico v.
Hays, 75 Kan. 76, 88 Pac. 738, 9
L. R. A. (N. S.) 224; Kirby v.
Hulette, 174 Ky. 257, 192 S. W.
63; Byers v. McClanahan, 6 Gill.
& J. (Md.) 250; Creeden v. Ma-
honey, 193 Mass. 402, 79 N. E.
776; Thatcher v. St. Andrews
Church, 37 Mich. 264; Chastek
V. Souba, 93 Minn. 418, 101 N.
W. 618; Young v. Elgin — (Miss.)
—27 So. 595; Lee v. Parker, 171
N. C. 144, 88 S. E. 217; Dukes
V. Spangler, 35 Ohio St. 119;
Kanawell v. Miller,— Pa. — 104 Atl.
861; Farrar v. Bridges, 5 Hump.
(Tenn.) 411; Watson v. Johnson,
48 Wash. 256, 125 Am. St. Rep.
924, 93 Pac. 324.
43. Doe d. Garnons v. Kmght,
5 Barn. & C. 671; Xenos v. Wick-
ham, L. R. 2 H. L. 296; Austin
V. Fendall, 2 MacArthur (D. C.)
362; Otis v. Spencer, 102 HI. 622,
40 Am. Rep. 617; Colee v. Colee,
122 Ind. 109, 17 Am. St. Rep.
345; Bunnell v. BunneH, 111 Ky.
566, 64 S. W. 420. 65 S. W. 607;
Moore v. Hazelton, 9 Allen
(Mass.) 102; Stevens v. Hatch,
6 Minn. 64; Wall v. Wall, 30
Miss. 91, 64 Am. Dec. 147; Ruck-
man V. Ruckman, 32 N. J. Eq.
259; Scrugham v. Wood, 15
Wend. (N. Y.) 545, 30 Am. Dec.
75; Mitchell's Lessee v. Ryan, 3
Ohio St. 377; Ledgerwood v.
Gault, 2 Lea (Tenn.) 643; Thatch-
er V. Capeca, 75 Wash. 249, 134
Pac. 923.
So the fact that the grantor
still has access to the instru
ment does not conclusively nega
tive delivery. Strickland v
Griswold, 149 Ala. 325, 43 So
105; Cribbs v. Walker, 74 Ark
104, 85 S. W. 244; Kenniff v
Caulfield. 140 Cal. 34, 73 Pac
803; Munro v. Bowles, 187 111
346, 54 L. R. A. 864; Terry v
Glover, 235 Mo. 544, 139 S. W
337; Payne v. Hallgarth, 33 Ore
430, 54 Pac. 162; Wilson v. Wil
son, 32 Utah 169, 89 Pac. 643.
44. Sheppard's Touchstone, 57,
4 Kent. Comm. 455; Doe d.
Garnons v. Knight, 5 Barn. & C.
671; Xenos v. Wickham, L. R.
2 H. L. 312: Gulf Red Cedar Co.
v. Crenshaw, 169 Ala. 606. 53
So. 812; Watson v. Hill, 123 Ark.
601, 186 S. W. 68; Crozer v.
White— (Cal.)— 100 Pac. 130:
Clark V. Clark, 183 111. 448. 75
Am. St. Rep. 115; Gomel v. Mc-
Daniels, 269 111. 362, 109 N. E.
996; Matheson v. Matheson. 139
Iowa, 511, 18 L. R. A. (N. S.)
1167. 117 N. W. 755: Harmon v.
Bower. 78 Kan. 135, 17 L. R. A.
(N. S.) 502, 16 Ann. Cas. 121,
98 Pac. 51: Beatty v. Beatty, 151
Ky. 547, 152 S. W. 540; Clark
V. Creswell, 112 Md. 339. 21 Ann.
Cas. 338, 76 Atl. 579; Foster v.
Mansfield, 3 Mete. (Mass.) 412:
Cooper v. Cooper, 162 Mich. 304.
§ 461]
Transfer Inter Vivos.
174J
ing thereby that the conveyance may take effect by
reason of physical transfer of the instrument to a third
person, this would seem to result, not from any particu-
lar virtue in the transfer, but from the fact that the
transfer may show an intention to make the instrument
legally operative. A declaration to such third person
of an intention that the deed shall take effect would
seem to be quite as effective as a manual transfer to
him, if satisfactoril}^ proven,^^ and would indeed, as
affording indubitable evidence of the grantor's inten-
tion, have a conclusiveness that may be lacking in the
case of a mere manual transfer. Such a transfer to a
third person, if not made with the intention that the
instrument shall be legally operative, does not con-
127 N. W. 266: Barnard v. Thur-
ston. 86 Minn. 343, 90 N. W.
574; Sneathen v. Sneathen, 104
Mo. 201. 24 Am. St. Rep. 326;
Jones V. Swayze, 42 N. J. L. 279:
Church V. Oilman, 15 Wend. (N.
Y.) 656: Robblns v. Roscoe, 120
N. C. 79. 38 L. R. A. 238, 58
Am. St. Rep. 774: Meeks v. StUl-
well, 54 Ohio St. 541; Belcher v.
La Grande Nat. Bk. 87 Ore. t)65,
171 Pac. 410; Blight v. Schenck,
10 Pa. St. 285; Eckman v. Eck-
man, 55 Pa. St. 269; Kanner v.
Startz,— Tex Civ. App.— , 203 S.
W. 603.
Statements, occasionally found,
to the effect that the instrument
must be handed to the third
person with the intention that
h<» pass it on, so to speak, to
the grantee named (See e. g.
Osborne v. Eslinger, 155 Ind. 351,
80 Am. St. Rep. 240, 58 N. E.
439) or that he must so pass it
on (Furenes v. Eide, 109 Iowa,
511, 77 Am. St. Rep. 545. 80 N.
W. 539; Jackson v. Phlpps, 12
Johns. (N. Y.) 418) are, it is
2 R. P.— 35
submitted, absolutely incorrect.
The intention of the grantor as
to whether the instrument shall
take effect as a conveyance is
the subject for ascertainment, not
his intention, if he happens to
have any, as to the ultimate
custody of the writing.
In one state it appears to have
been decided that a manual
transfer to a third person cannot
involve delivery unless such per-
son is a duly authorized agent
of the grantee. Jameson v.
Goodwin, — Okla. — 170 Pac. 241,
Such a view is, it is submitted,
entirely out of harmony with
the authorities generally.
45. 3 Preston, Abstracts, 63;
Doe d. Garnons v. Knight, 5
Barn. & C. 671; Xenos v. Wlck-
ham, L. R. 2 H. L. 312; Linton
V. Brown's Adm'rs (C. C.) 20
Fed. 455; Rushin v. Shields, 11
Ga. 636, 56 Am. Dec. 436; Moore
V. Hazelton, 9 Allen (Mass.) 102;
Regan v. Howe, 121 Mass. 424;
Kane v. Mackln, 9 Smedes & M.
(Miss.) 387; Vought v. Vought,
1742
Real Propeety.
[§ 461
stitute a delivery;**' nor does such a transfer to the
grantee himself, if the transfer is not with such inten-
tion, but is for another purpose as, for instance, to en-
able him to examine the instrument.*"^
In spite, however, of these numerous decisions
recognizing the minor imjiortance of the matter of
actual transfer of the instrument in connection with
the question of delivery, the courts not infrequently
speak as if such transfer were an essential in delivery.
The occasional mention, moreover, of delivery "to" the
grantee, suggests the idea of a physical transfer to
50 N. J. Eq. 177, 27 Atl. 489;
Scrugham v. W^ood, 15 Wend.
(N. Y.) 54,5; Diehl v. Emig, tJ5
Pa. St. 320; Contra, Moore v.
Conins, 15 N. C. 384.
46. Co. Litt. 36a; Sheppard's
Touchstone 57; Culver v. Carroll,
175 Ala. 469, Ann. Cas. 1914D,
103, 57 So. 767; Baker v. Baker.
— (Cal.)— , 100 Pac. 892; Merrills
V. Swift, 18 Conn. 257; Porter v.
Woodhouse, 59 Conn. 568, 13 L.
R. A. 64, 21 Am. St. Rep. 131,
22 Atl. 299; Lange v. Cullinan
205 111. 365, 68 N. E. 934; Connor
V. Buhl, 115 Mich. 531, 73 N. W.
821; Cannon v. Cannon, 26 N. J.
Eq. 316; Jackson v. Phlpps, 12
Johns. (N. Y.) 418; MltcheH's
Lessee v. Ryan, 3 Ohio St. 377;
Sears v. Scranton Trust Co., 228
Pa. 226, 20 Ann. Cas. 1145, 77
Atl. 423; Leftwich v. Early. 115
Va. 323, 79 S. E. 384; Showalter
V. Spangler, 93 Wash. 326, 160
Pac. 1042.
A statement of an intention
that the conveyance shall be
immediately operative has been
regarded as effective as a de-
livery, although the instrument
had been previously placed in
another's custody to hold It in
behalf of the grantor. Moore
V. Trott, 162 Cal. 268. 122 Pac.
462; Elliott v. Hoffhine, 97 Kan.
26, 154 Pac. 225.
47. Bray v. Bray, 132 Ark.
438, 201 S. W. 281; Kenney v.
Parks, 137 Cal. 527, 70 Pac. 556;
Cox V. Schnerr, 172 Cal. 371.
156 Pac. 509; Oswald v. Caldwell.
225 111. 224, 80 N. E. 131:
Kavanaugh v. Kavanaugh, 260
111. 179, 103 N. E. 65; Witt v.
Witt, 174 Iowa. 173. 156 N. W.
321; Ball v. Sandlin, 176 Ky.
537, 175 S. W. 1089; Tewkesbury
v. Tewkesbury, 222 Mass. 595. Ill
N. E. 394; Comer v. Baldwin, Its
Minn. 172; Braman v. Bingham.
26 N. Y. 483; Gaylord v. Gaylord,
150 N. C. 222. 63 S. E. 1028;
Clark V. Clark. 56 Ore. 218. 107
Pac. 23; In re Nicholl's Petition.
190 Pa. 308, 42 Atl. 692: Gordon
V. White, 33 S. D. 234. 145 N. W.
439; Dwinell v. Bliss. 58 Vt.
353, 5 Atl. 317: Zoerb v. Paetz,
137 Wis. 59, 117 N. W. 793.
1^ 4G1 1 Tkansfer Inter Vivos. 17415
him. The delivery of a conveyance or other instrument
involves in its essence no delivery ''to" any one, since
it means merely the expression, by word or act, of an
intention that the instrument shall be legally operative,
and the fact that in many cases such intention is indi-
cated by the making of a physical transfer does not
show that such transfer is necessary. The partial
survival of the primitive formalism, as it has been well
termed,^^ which attached some peculiar efficacy to the
physical transfer of the instrument, as involving a
symbolical transfer of the property described therein,
is presumably to be attributed to the fact that in other
connections the words ''deliver" and "delivery," as
applied to inanimate things, ordinarily have reference
to a physical transfer.
It being conceded that even a voluntary transfer of
the instrument by the grantor to the grantee does not in-
volve a delivery if not with the intention that the in-
strument shall be legally operative, it necessarily fol-
lows that the instrument cannot be regarded as having
been delivered merely because the grantee has ac-
quired possession thereof without the grantor's con-
sent.^^ And it has been decided that the fact of non
delivery in such case may be asserted even as against a
subsequent bona fide purchaser, who purchased in re-
liance on the grantee's possession of the instrument.-"'"
48. 4 Wigmore, Evidence, § v. Ayer, 2G Ore. 589, 39 Pac. 1;
2405. King v. Diffey— Tex. Civ. App.—
49. Bender v. Barton, 166 Ala. 192 S. W. 262.
337, 52 So. 26; Bowers v. Cottrell, 50. Gould v. Wise, 97 Cal. 532.
15 Idaho, 221, 96 Pac. 936; Lundy 32 Pac. 576, 33 Pac. 323: Henry
v. Mason, 174 111. 505. 51 N. E. v. Carson, 96 Ind. 412; Ogden v.
614; Schaefer v. Purvlance. 160 Ogden, 4 Ohio St. 458; Burns v.
Ind. 63, 66 N. E. 154;. Hintz v. Kennedy, 49 Ore. 588, 90 Pac.
Hintz, 175 Iowa, 392, 156 N. W. 1102; Van Amrlnge v. Morton, 4
878; White v. Holder— (Ky.)— Whart. (Pa.) 382; Steffian v.
118 S. W. 995; Westlake v. Dunn, Milmo Nat. Bank, 69 Tex. 513. 6
184 Mass. 260, 100 Am. St. Rep. S. W. 823; Tyler Building &
557; Gardiner v. Gardiner, 134 Loan Ass'n v. Baird & Scales. —
Mich. 90, 95 N. W. 973; Allen Tex. Civ. App.—. 16.') S. W. 5J2.
174-4: Eeal Property. [§ 461
There arc, however, dicta to the effect that the grantor
may, by reason of his lack of care in the custody of the
instrument, be estopped, in favor of a bona fide pur-
chaser, to deny its delivery.^ ^
Apart from any question of houa fide purchase,
there are a number of" decisions to the effect that an in-
strument of conveyance, the possession of which has
been improperly acquired by the grantee named therein,
may be subsequently made operative by the grantor's
recognition of the title as being in such grantee.^^ In
connection with these decisions the courts ordinarily
speak of such recognition as involving a ''ratification"
of the deed or of the delivery, but what actually, occurs
is, it is conceived, a delivery by the grantor, that is,
an expression of an intention by him, not previously
expressed, that the instrument, which has already
passed into the grantee's hands, shall take effect as a
transfer of title. An instrument which is inoperative
as a conveyance for lack of legal delivery cannot be
made operative by ratification, there being indeed, in
such case, nothing to ratify. And likewise a j^hysical
transfer of the instrument, which lacks all legal sig-
nificance because not made by one authorized to make
delivery, cannot thereafter, by ratification, be trans-
formed into a legal delivery, that is, an expression of
intention that the instrument shall be legally operative.
51. Gould V. Wise, 97 Cal. 532. Co., 13 C. C. A. 1, 65 Fed. 441.
32 Pac. 576, 33 Pac. 323; Alex- See post. § 462, note 42.
ander v. Welcker. 141 Cal. 302, 74 52. Whitney v. Dewey, 10
Pac. 845; Allen v. Ayer, 26 Ore Idaho, 633, 69 L. R. A. 572, 80
589, 39 Pac. 1; Merck v. Merck, 83 Pac. 1117; Phelps v. Pratt, 225
S. Car. 329, 137 Am. St. Rep. 815, 111. 85, 9 L. R. A. (N. S.) 945,
65 S. E. 347; Steffian v. Mllmo 80 N. E. 69: Harkness v. Cleaves,
Nat) Bank, 69 Tex. 513, 6 S. W. 113 Iowa, 140, 84 N. W. 1033;
823; Garner v. Risinger, 35 Tex. McNulty v. McNulty, 47 Kan.
Civ. App. 378, 81 S. W. 343; 208, 27 Pac. 819; Pannell v.
Tisher v. Beckwith, 30 Wis. 55, Askew,— Tex. Civ. App. — , 143 S.
11 Am. Rep. 546; Laughlin v. W. 364.
Calumet & Chicago Canal & Dock
§ 461]
Transfer Inter Vivos.
J 745
Delivery by agent. The delivery of an instru-
ment is a part of the execution thereof,'^^ and in so far
as a written or sealed authority may be necessary to
enable one to sign or seal an instrument as an agent
acting in behalf of the grantor, such an authority is, it
is conceived, necessary to enable one to deliver the
instrument as such agent. ^^ It would be strange if the
final expression of intention, which makes the instru-
ment legally operative, could be given by one acting
under an oral authority, while the merely preliminary
acts of signing and sealing can be performed by an
agent only when acting under authority in wiiting.
There are, however, to be found occasional judicial
statements that a deed may be delivered by one acting
under oral authority,^^ and that this may be done is not
infrequently assumed by the courts.^^ That an oral
authority is sufficient for this purpose appears to be
involved in the decisions, rendered in a number of
states,^^ that a conveyance which, at the time it leaves
53. See Goodlet v. Goodman
Coal & Coke Co., 192 Fed. 775,
113 C. C. A. 61; Clark v. Child,
66 Cal. 87, 4 Pac. 1058; Bowers
V. Cottrell, 15 Idaho, 221, 96 Pac.
936; Colee v. Colee, 122 Ind. 109,
17 Am. St. Rep. 345; McAndrew
V. Sewell, 100 Kan. 47, 163 Pac.
653; Tucker v. Helgien, 102 Minn.
382, 113 N. W. 912; and other
cases cited in "Words & Phrases"
under "Execute."
54. That an agent cannot de-
liver a deed without authority
under seal is explicitly decided in
Hibblewhlte v. M'Morine, 6 Mees.
& W. 200; Powell v. London &
Provincial Bank (1893), 2 Ch.
555.
So it is said In Sheppard's
Touchstone at p. 57, that "where
one person delivers an instru-
ment as the act of another per-
son, who is present, no deed con-
ferring an authority is requisite.
But a person cannot, unless au-
thorized by deed, execute an in-
strument as the act of a person
who is absent."
55. White v. Duggan, 140 Mass.
18, 54 Am. Rep. 437; Macurda v.
Fuller, 225 Mass. 341, 114 N. E.
366; Lafferty v. Lafferty, 42 W.
Va. 783, 26 S. E. 262. See Huff-
cut, Agency (2nd Ed.) p. 38.
56. Sturtevant v. Sturtevant,
116 111. 340, 6 N. E. 428; Furenes
V. Eide, 109 Iowa, 511, 77 Am.
St. Rep. 545, 80 N. W. 539; Con-
way V. Rock, 139 Iowa, 162, 117
N. W. 273; Santaquin Min. Co. v.
High Roller Min. Co., 25 Utah
282, 71 Pac. 77; Spring Garden
Bank v. Ilulings Lumber Co., 32
W. Va. 357, 3 L. R. A. 583.
57. Ante, § 434. note t;8.
1746 Real Property. [§ 461
the hands of the grantor, hicks the name of a grantee,
becomes valid if the name is subsequently inserted by
an agent acting under oral authority from the grantor,
these decisions apparently- involving the assumption
that the delivery of the deed is made by such agent,
since delivery could not be made so long as the instru-
ment, lacking the name of the grantee, was a legal
nullity, and there is no act by the grantor, after the in-
sertion of such name, which can be referred to as
indicative of an intention to deliver.
The view indicated in the decisions referred to,
that an agent acting under oral authority may make
delivery, is presumably based on the misconception,
previously referred to, that delivery of a deed means
merely the manual transfer of the instrument. That
an agent in possession of the instrument in behalf of
the grantor is in a position to hand it to the grantee,
whether his agency is based on a written or an oral
authority, is sufficiently obvious, and because he is in
a position to do this it is assumed that he has the
power and authority to make delivery of the instrument
on behalf of the grantor. But delivery of the instru-
ment involves more than a manual transfer thereof, and
the fact that the agent is in a position to make such a
transfer is no reason for assuming that he has legal
authority to express, by word or act, an intention on
the part of the grantor that the instrument shall be-
come legally operative. It no doubt frequently occurs
that the grantor hands the completed instrument to an
agent, with oral instructions to hand it to the grantee
upon some subsequent event, ordinarily the payment of
the purchase money. In such case, however, the de-
livery, it is conceived, is properly to be regarded as a
conditional delivery made by the grantor himself, a
delivery made by him, that is, at the time of handing
the instrument to his agent, conditioned however upon
the subsequent payment of the purchase money or
occurrence of the other event named, on which the
agent was to hand the instrument to the grantee. Upon
§ 461]
Transfer Inter Vivos.
1747
the satisfaction of the condition the delivery by the
grantor becomes effective, as in the case of any other
conditional delivery,"^ and the mere act of the agent in
handing the instrument to the grantee is not technically
speaking, a delivery thereof, it having already been
delivered.
Since the delivery must be made by the grantor,
or by the grantor's agent, in order to be eft'ective,
there can be no delivery after the grantor's death. A
deceased grantor can obviously not make delivery, and
the agent's authority necessarily comes to an end
upon the death of the principal.^''
Retention of control. It is not infrequently
said that there is no delivery if the grantor still re-
tains control or dominion over the deed.*'*' Such a state-
ment is somewhat ambiguous. The mere fact that the
grantor retains possession of the instrument is, as above
58. Post, § 462.
59. Mortgage Trust Co. of
Pennsylvania v. Moore, 150 Ind.
465, 50 N. E. 72; Schaeffer v.
Anchor Mut. Fire Ins. Co., 11.3
Iowa, 652, 85 N. W. 985; Colyer
V. Hyden, 94 Ky. 180, 21 S. W.
868; Taft v. Taft, 59 Mich. 185,
60 Am. Rep. 291; Givens v. Ott.
222 Mo. 395, 121 S. W. 23; Meikle
V. Cloquet, 44 Wash. 513, 87 Pac.
841.
60. See e. g. Tarwater v.
Going, 140 Ala. 273, 37 So. 330;
Porter v. Woodhouse, 59 Conn.
568, 13 L. R. A. 64, 21 Am. St.
Rep. 131, 22 Atl. 299; Rutledge
V. Montgomery, 30 Ga. 899; Cal-
lerand v. Plot, 241 111. 120, 89
N. E. 266: Pethel v. Pethel, 45
Ind. App. 664, 90 N. E. 102;
Kirby v. Hulette, 174 Ky. 257,
192 S. W. 63; Renehan v. Mc-
Avoy, 116 Md. 356, 38 L. R. A.
(N. S.) 941, 81 Atl. 586; .Toslin
V. Goddard, 187 Mass. 165. 72
N. E. 948; Taft v. Taft, 59 Mich.
185, 60 Am. Rep. 291; Ingersoll
V. Odendahl. 136 Minn. 428, 162
N. W. 525: Hall v. Waddill, 78
Miss. 16, 27 So. 936, 28 So. 831;-
Peters v. Berkemeier, 184 Mo.
393, 83 S. W. 747; Baker v.
Haskell, 47 N. H. 479, 93 Am.
Dec. 455; Fisher v. Hall, 41 N.
Y. 416; Gaylord v. Gaylord, 150
N. C. 222, 63 S. E. 1028; Arne-
gaard v Arnegaard, 7 N. D. 475,
41 L. R. A. 258; Ball v. Fore-
man, 37 Ohio St. l:{9; Eckman v.
Eckman, 55 Pa. St. 269; Johnson
V. John.son, 24 R. I. 571, 54 Atl.
378; Merck v. Merck, 83 S. C.
329, 137 Am. St. Rep. 815, 65 S.
E. 347; Cassidy v. Holland, 27
S. D. 287, 130 N. W. 771; Gaines
V. Keener, 48 W. Va. 56, 35 S.
E. 856; Butts v. Richards, 152
Wis. 318, 140 N. W. 1.
1748 Real Property. [§ 461
indicated,*'^ not incompatible with delivery, and yet it
can hardly be said that, having possession of the deed,
he has no dominion or control thereover. The state-
ment may mean that the fact that the grantor has a
right to demand the physical possession of the insti'n-
ment, or to refuse to relinquish such possession, conclu-
sively shows that the instrument has not been delivered
since, after delivery, the grantee, and not the grantor,
is entitled to control the possession of the instrument,
it being his muniment of title. Or it may mean that the
fact that the grantor has a right to determine whether
the instrument shall have a legal operation shows that
it has not been delivered, since after delivery he has
no such right. But since the question whether the
grantor has the right of control as regards either pos-
session of the instrument or its legal operation depends
on whether there has been a delivery, the statement re-
ferred to amounts to little more than a statement that,
so long as the instrument is subject to the grantor's
control by reason of lack of delivery, the instrument
has not been delivered. The statement is unquestion-
ably correct, but appears to be of questionable utility,
and its frequent repetition is calculated to obscure,
rather than to clarify, the nature of delivery.
Presumptions as to delivery. In connection
with the question of the delivery of a deed, various
rules of presumption have been judicially asserted, that
is, particular states of fact have been regarded as show-
ing prima facie, that the instrument has or has not l)een
delivered.
It has been said that the fact that the instrument
remains in the possession of the grantor raises a pre-
sumption that it has not been delivered.''- This appears
61, Ante, this section, note 43. 133 Iowa, 320, 107 N. W. 310,
62. Donahue v. Sweeny, 171 110 N. W. 582; Dunbar v. Mea-
Cal. 388, 153 Pac. 708; Kavan- dows, 165 Ky. 275, 176 S. W.
augh V. Kavanaugh, 260 III. 79, 1167; Dudley v. Niclierson, 107
103 N. E. 65; Shetler v. Stewart, Me. 25, 78 Atl. 100; Kanawell v.
§ 461] Transfer Inter Vivos. 17-1-9
to be merely another way of saying that delivery is an
affirmative fact, the burden of proving which is upon
the person alleging it. If he cannot support this burden
by evidence of a change of possession of the instru-
ment, he must support it by other evidence."^
While a presumption of non delivery is said ordi-
arily to arise from the grantor's possession of the
instrument, no such presumption arises, it is said, if
the grantor, by the terms of the instrument, reserves
a life estate in the property, for the reason that there
is no object in such a reservation unless the instrument
is to operate before the grantor's death.''^ That such
a reservation shows that the instrument was i)rei)ared
with the intention that its operation should not be
postponed till the grantor's death may be conceded,
but it is difficult to see what bearing this has on the
question of delivery, since the form of the instrument,
even without .the reservation, shows that it was pre-
pared with this intention. It might as well be said
that any instrument in the form of a conveyance inter
vivos as disting-uished from a will, though still in the
possession of the grantor, is to be presumed to have
been delivered, since it would not have l;een prepared
in that form had it not been intended to operate be-
fore the grantor's death. Delivery is, as above indi-
Miller, —Pa.— 104 Atl. 861; Cas- W. Va. 56, ;{5 S. E. 856; Butts v.
sidy V. Holland, 27 S. D. 287, Richards, 152 Wis. 318. 44 L. R.
130 N. W. 771; Butts v. Richards, A. (N. S.) 528, Ann. Cas. 1914C,
152 Wis. 318, 140 N. W. 1. 854, 140 N. W. 1.
63. See Jenkins v. Southern 64. Hill v. Kreiger, 250 111.
R. Co., 109 Ga. 35, 34 S. E. 355; 408, 95 N. E. 468; Buck v. Garber.
Burton v. Boyd, 7 Kan. 1: 261 111. 378, 103 N. E. 1059;
Powers V. RusseU, 13 Pick. Collins v. Smith, 144 Iowa. 200.
(Ma:!S.) 69: Bisard v. Sparks, 122 N. W. 839; Sneathen v.
133 Mich. 587, 95 N. W. 728; Sneathen, 104 Mo. 201, 24 Am.
Ligon V. Barton, 88 Miss. 135, St. Rep. 326, 16 S. W. 497; Wil-
40 So. 555; Tyler v. Hall, 106 Mo. liams v. Latham, 113 Mo. 165,
313, 27 Am. St. Rep. 338; At- 20 S. W. 99; Ball v. Foreman,
wood V. Atwood, 15 Wash. 285, 37 Ohio St. 132.
46 Pac. 240; Gaines v. Keener, 48
1750 Eeal Peopbrty. [^ 461
cated, the final expression, subsequent to the signing
and sealing, of an intention that the instrument shall
he legally operative, and, whatever the form of the
instrument, it cannot well constitute the basis for an
inference that, subsequent to the signing and sealing,
such intention was expressed.^^
It has furthermore been said that the grantor's
retention of the instrument does not give rise to a
presumption of non-delivery if he retains an interest in
the property and it is consequently to his advantage
that the instrument be preserved.*'^ It is, however, dif-
ficult to see that, in the ordinary case, it is to his
advantage that the instrument be preserved, if its
effect is to divest him of either the whole interest or a
partial interest in the property. He would in either
case be better off if the instrument were no longer
available for the purpose of asserting his grantee's
rights thereunder.
That the instrument is in the possession of the
grantee named therein is usually referred to as raising
a presumption that it has been delivered,''" based, it
would seem, on the probability that the grantor gave
him possession of the instrument, and the improbability
that the grantor would vest him w^ith such a muniment
of title unless he intended that the title should pass.
65. See Colyer v. Hyden, 94 E. 204; Inmau v. Swearingen,
Ky. 180, 21 S. W. 868; Whitney 198 III. 437, 64 N. E. 1112;
V. Dewey, 10 Idaho, 6H3, 69 L. R. Hathaway v. Cook, 258 111. 92,
A. 572, 80 Pac. 1117. 101 N. E. 227; Hild v. Hild, 129
66. Blakemore v. Byenside, 7 Iowa, 649, 113 Am. St. Rep.
Ark. 504; Cribbs v. Walker, 74 500; Fish v. Poorman, 85 Kan.
Ark. 104, 85 S. W. 244; Scrug- 237, 116 Pac. 898; Ball v. Sandlin,
ham V. Wood, 15 Wend. (N. Y.) 176 Ky. 537, 195 S. W. 1089;
545. Valentine v. Wheeler, 116 Mass.
67. Games v. Stiles, 14 Pet. 478; Barras v. Barras, 192 Mich.
(U. S.) 322, 10 L. Ed. 476; 584, 159 N. W. 147; Wilson v.
Simmons v. Simmons, 78 Ala. Wilson, 85 Neb. 167, 122 N. W.
365; Thompson v. McKenna, 22 856; Plerson v. Fisher, 48 Ore.
Cal. App. 129, 133 Pac. 512; Hill 223, 85 Pac. 621; Painter v.
V. Merritt, 146 Ga. 307, 91 S. Campbell, 207 Pa. 189, 56 Atl.
§ 461] Transfee Inter Vivos. 1751
In England and Massachusetts there are decisions
to the effect that the signing and sealing of the instru-
ment in the presence of an attesting witness raises a
presumption of delivery,''^ the effect of which presump-
tion would be to justify a finding of delivery, although
the instrument is still in the grantor's possession,
upon evidence that it was signed and sealed by him.
Such a presumption does not appear to have been rec-
ognized elsewhere, and it may perhaps be regarded as
based on a recognized practice, in the jurisdictions
named, of making delivery of the instrument by a dec-
laration to that effect in the presence of witnesses at
the time of signing and sealing. The propriety of such
an inference of delivery from the mere fact of signing
and sealing might indeed depend on the particular cir-
cumstances of the case, for instance on the presence or
absence of the grantee. That the grantor signs and
seals the instrument in the presence of the grantee may
justify an inference of delivery, while his doing so in
the grantee's absence may not.*'^
That the attestation clause, under which the wit-
nesses write their names, recites the delivery of the in-
strument, has occasionally been regarded as creating
a presumption of delivery,"" while a contrary view has
409; Jackson v. Lamar, 58 Wasti. Eliz 7; Levister v. Hilliard, 57
383, 108 Pac. 946. N. C. 12. "If both parties be
That the presumption is not present, and the usual formalities
overthrown by the fact that the of execution take place, and the
possession is not affirmatively contract is to all appearances
shown to have originated prior consummated without any condi-
lo the grantor's death, see Blair tions or qualifications annexed,
v. Howell, 68 Iowa, G19, 28 N. W. it is a complete and valid deed,
199; Melaney v. Cameron, 98 Kan. notwithstanding it be left in the
620, 159 Pac. 19. c\istody of the grantor." 4 Kent's
68. Hall v. Bainbridge, 12 Q. Comm. 455, quoted and applied
B. 699; Hope v. Harman, 16 Q. in Scrugham v. Wood, 15 Wend.
B. 751 note; Burling v. Paterson, (N. Y.) 545; Wallace v. Berdell.
9 Car. & P. 570; Moore v. Hazel- 97 N. Y. 13.
ton, 9 Allen (Mass.) 102; Howe 70. Xenos v. Wickham, L. R.
V. Howe, 99 Mass. 88. 2 H. L. 296; Evans v. Grey. 9 L.
69. See Shelton's Case, Cro. R. Jr. 539; Clark v. Akers, 16
1752
Real Property.
[§ 4G1
also been expressed/^ Such a fact might properly, it
would seem, be regarded as evidence sufficient to sup-
port a finding of delivery, but whether it should bo
regarded as creating a presumption of delivery, in the
sense of requiring a finding of delivery in the absence
of countervailing evidence, appears questionable^^
Upon the question whether the fact that an instru-
ment is acknowledged raises a presumption of delivery
the cases are few and unsatisfactory. That it does not
has occasionally been decided,'^'^ but there are a greater
number of decisions to an opposite effect.'^* The fact
that the instrument is acknowledged in the presence of
the grantee might operate to create an inference in this
regard which an acknowledgment out of his presence
would not create."^^ Some weight might also be im-
Kan. 166 (semble) ; Hall v.
Sears, 210 Mass. 185, 96 N. E.
141; Diehl v. Emig, G5 Pa. St.
320; Currie v. Donald, 2 Wash.
(Va.) 58.
71. Fisher v. Hall, 41 N. Y.
416; Rushin v. Shield, 11 Ga.
636; Hill v. McNichoI, 80 Me.
209, 13 Atl. 883.
72. The presence of such a
clause has been referred to as
some evidence of delivery. Den-
nis V. Dennis, 119 Mich. 380, 78
N. W. 333. And see, apparently
to this effect. Hill v. Merritt, 146
Ga. 307, 91 S. E. 204.
73. Braun v. Monroe, 11 Ky.
L. Rep. 324; Den v. Farlee, 21 N.
J. L. 279; Kille v. Ege, 79 Pa. St.
35.
In Alexander v. De Kermel, 81
Ky. 345, It was decided that
acknowledgment did not create
a presumption of delivery for the
reason that the concurrence of
the grantee is needed. This is
however another question, that
of the necessity of acceptance.
See post, § 463.
74. Boyd v. Playback, 63 Cal.
493; New Haven Trust Co. v.
Camp, 81 Conn. 539, 71 Atl. 788;
Baker v. Updike, 155 111. 54, 39
N. E. 587; Burton v. Boyd, 7
Kan. 17; Govin v. De Miranda,
76 Hun (N. Y.) 414, 27 N. Y.
Supp 1019; Tarlton v. Griggs,
131 N. C. 216, 233, 42 S. E. 591;
Humphrey v. Hartford Fire Ins.
Co., 15 Blatchf. (U. S.) 35.
Occasionally the fact that the
Instrument was both acknowledg-
ed and recorded is referred to as
raising a presumption of de-
livery. Sulzby v. Palmer, 194
Ala. 524, 70 So. 1; Stephens v.
Stephens, 108 Ark. 53, 156 S. W.
837: Felker v. Rice, 110 Ark. 70,
161 S. W. 162.
75. See Delaplain v .Grubb,
44 W. Va. 612, 67 Am. St. Rep.
788, 30 S. E. 201; Adams v.
Baker, 50 W. Va. 249, 40 S. E.
356; Scrugham v. Wood, 15 Wend.
(N. Y.) 545.
<^ 461] Transfer Inter Vivos. 1753
puted to the language of tlie certificate of acknowledg-
ment, an acknowledgment in express terms that the gran-
tor delivered the instrument being perhaps entitled to
more weight than an acknowledgment merely that he
executed it.'*^ The usage of the community as to the
time and manner of making acknowledgments might also
have a hearing in this regard.'" It would seem on the
whole desirable that the courts refrain from the as-
sertion of a presumption of delivery from acknowl-
edgment, but rather leave it to the jury to determine
w^hether the circumstances of the particular case show
an intention on the part of the grantor that the instru-
ment shall be legally operative.'* In several cases it is
in effect decided that a finding of delivery cannot be
based on the fact of acknowledgment alone. '^'^
The question may arise in this connection of the
effect of a statute, such as exists in a number of states,
making an instrument, if duly acknowledged, admissible
without further proof of execution. In one state such
a statute has been regarded as placing on the op-
posite party the burden of show^ing non-delivery,*'^
but this does not appear to accord with decisions in
other jurisdictions that the authentication of a docu-
ment sufficient to render it admissible in evidence does
not necessarily create a presumption of its execution.^^
76. See Blight v. Sclieuck, 10 W. Va. 561, 20 S. E. 591; Hutch-
Pa. 285; Den v. Farlee, 21 N. J. ison v. Rust, 2 Gratt. (Va.)
L. 279; Hawes v. Hawes, 177 HI. 394.
409, 53 N. E. 78. 79. Humphrey v. Hartford Fire
77. In Brann v. Monroe, 11 Ins. Co., 15 Dlatchf. (U. S.) 35;
Ky. L. Rep. 324 it is said that Wiggins v. Lusk, 12 III. 132;
the acknowledgment raises a pre- Baker v. Updike, 155 111. 54, 39
sumption of delivery because the N. E. 587; Btirton v. Boyd, 7
instrument ought to be delivered Kan. 17; Covin v. De Miranda,
before acknowledgment. This can 7G Hun. 414, 27 N. Y. Supp. 1019;
not well be said in all commu- 80. Tucker v. Helgren, 102
nities. Minn. 382, 113 N. W. 912.
78. That the acknowledgment 81. Anderson v. Cuthbert, i03
Is merely evidence bearing uu Ga. 767, 30 S. E. 244; Scott v.
the question appears to be recog- Delany, 87 111. 146; Ross v.
nlzed in Furguson v. Bond, 39 Gould, 5 Me. 204; Bogle v. Sul-
1754
Real Propeety.
[§ 461
That the grantor has the instrument recorded, or
leaves it with the proper official for record, has been
frequently referred to as raising a presumption of de-
livery.*^- This amounts in effect to a statement that
such action on the part of the grantor shows, primu
facie, an intention on his part that the instrument shall
be legally operative. It is in the ordinary case dif-
ficult to see any object in leaving the instrument for
record, unless it is intended that it shall operate as a
conveyance, and the rule of presumption referred to ap-
pears to be founded in reason. In a few states only
does this view appear to have been actually repudiated,
and it is not always clear, in these states, why such an
effect is denied to the grantor's conduct in this regard.^"
In a very considerable number of cases it is said that
the action of the grantor in having the instrument re-
corded does not show delivery if this was without the
knowledge or consent of the grantee,^'* but this intro-
livant, 1 Call. (Va.) 561; Sieg-
fried V. Levan, 6 Serg. & R. 308.
See 3 Wigmore, Evidence, § 2135.
82. Lewis v. Watson, 98 Ala.
479, 39 Am. St. Rep. 82; Lee
Hardware Co. v. Johnson, 132
Ark. 462, 201 S. W. 289; Ellis v.
Clark, 39 Fla. 714, 23 So. 410;
Creighton v. Roe, 218 111. 619,
109 Am. St. Reip. 310; Blacken-
ship V. Hall, 233 111. 116, 122 Am.
St. Rep. 149, 84 N. E. 192; Colee
V. Colee, 122 Ind. 109, 17 Am.
St. Rep. 345, 23 N. E. 687; Hut-
ton V. Smith, 88 Iowa, 238, 55
N. W. 326; Lay v. Lay,— (Ky.) —
66 S. W. 371; Holmes v. Mc-
Donald, 119 Mich. 563, 75 Am.
St. Rep. 430; Griffin v. Howey,
179 Mich. 104, 146 N. W. 210;
Ingersoll v. Odendahl, 136 Minn.
428, 162 N. W. 525; Chambers v.
Chambers, 227 Mo. 262, 137 Am.
St. Rep. 567, 127 S. W. 86; Mitch-
ell's Lessee v. Ryan, 3 Ohio
St. 377; Robbins v. Rascoe, 120
N. C. 79, 38 L. R. A. 238, 56 Am.
St. Rep. 774; Thompson v. Jones,
1 Head (Tenn.) 574; Davis v.
Garrett, 91 Tenn. 147, 18 S. W.
113; Newton v. Emerson, 66 Tox.
142; Bjmerland v. Ely, 15 Wash.
101.
83. See Egan v. Horrigan, 96
Me. 46. In McManus v. Commow,
10 N. D. 340, 87 N. W. 8, the
decision to this effect is based
on an ill-advised statute under-
taking to state what constitutes
delivery. In Massachusetts this
position appears to be in part
the result of the view (post, §
463) that there must be knowl-
edge of or assent to the convey-
ance on the part of the grantee.
(See Maynard v. Maynard, 10
Mass. 456; Samson v. Thornton,
3 Mete. 275), and in part of the
§ 461]
Transfer Inter Vivos.
1755
duces another question, that of the necessity of ac-
ceptance of a conveyance, which properly calls for
separate discussion,^^ and these cases cannot generally
be regarded as involving a repudiation of the view that
the action of the grantor in having the instrument re-
corded shows, prima facie, an intention that it shall
take effect as a conveyance. The presumption of de-
livery, based on the action of the grantor in having the
instrument recorded, is recognized as being subject to
rebuttal by evidence that he did not intend the instru-
ment to operate as a conveyance.^-'
In several cases the fact that the purpose of
the conveyance was merely to prevent the assertion or
collection of a claim by a third person against the gran-
notion that delivery of a deed
means the physical transfer of
the instrument. Hawkes v. Pike,
105 Mass. 560, 7 Am. St. Rep,
554; Barnes v. Barnes, 161 Mass.
381, 37 N. E. 379. The legisla-
ture has now intervened by mak-
ing the record of a conveyance
concllisive evidence of delivery
in favor of a bona fide purchaser.
See Rev. Laws, c. 127, § 5.
84. Younge v. Guilbeau, 3
Wall. (U. S. 636, 18 L. Ed. 262;
Parmelee v. Simpson, 5 Wall. (U.
S.) 81, 718 I.. Ed. 542; Knox v.
Clark, 15 Colo. App. 356, 62 Pac.
334; Sullivan v. Eddy, 154 111.
199, 40 N. E. 482; Wilenou v.
Handlon, 207 111. 104, 69 N. E.
892; Vaughan v. Godman. 94
Ind. 191; O'Connor v. O'Connor,
100 Iowa, 476, 69 N. W. 676;
Alexander v. De Kermel, 81 Ky.
345; Oxnard v. Blake, 45 Me.
602; Maynard v. Maynard, 10
Mass. 456, 6 Am. Dec. 146; Sam-
son V. Thornton 3 Mete. (Mass.)
275, 37 Am. Dec. 135; Bullitt v.
Taylor, 34 Miss. 708, 69 Am. Dec.
412; Cravens v. Rossiter, 116 Mo.
338, 38 Am. St. Rep. 606; Derry
Bank v. Webster, 44 N. H. 264;
Jackson v. Phipps, 12 .lohns. (N.
Y.) 418; King v. Antrim Lumber
Co.,— Okla.— 172 Pac. 958; Bogard
v. Barhan, 56 Ore. 269, 108 Pac.
214.
85. Post, § 463.
86. Humiston v. Preston, 66
Conn. 579. 31 Atl. 544; Jones v.
Bush, 4 Harr. (Del.) 1; Ellis v.
Clark, ;59 Fla. 714, 23 So. 410;
Sullivan v. Eddy, 154 111. 199, 40
N. E. 482; Vaughan v. Vaughan,
94 Ind. 19; Hutton v. Smith, 8»
Iowa, 238, 55 N. W. 326; Hoga-
done V. Grange Mut. Fire Ins.
Co., 133 Mich. 339, 94 N. W
1045; Barras v. Barras. 192 Mich.
584, 159 N. W. 147; Babbitt v.
Bennett, 68 Minn. 260, 71 N. W.
22; Metcalfe v. Brandon, 60 Mi.ss.
685; Boardman v. Dana. 34 Pa.
St. 252; Thompson v. Jones, 1
Head (Tenn.) 576; Walsh v.
Vermont Mut. Fire Ins. Co.,
54 Vt. 351.
1756 Eeal Property. [§ 461
tor and not to vest a beneficial interest in the grantee,
has been regarded as prechiding, or at least as tending
to preclude, any inference of delivery from the grantor 's
action in recording the instrument.^^ Such a view ap-
pears, however, to be open to question. The instrument
cannot operate in any degree for his protection unless
it operates as a conveyance, and the fact that he de-
sires protection would seem to be rather an additional
reason for regarding the instrument as having become
operative by delivery.^^ Even conceding that his pur-
pose to avoid payment of claims would show that there
was no delivery, it might be questioned whether he,
or one claiming in his right, should be allowed to assert
that the ordinary inference from his use of the record-
ing system should not be drawn, because he made such
use for purposes of deception.
That the grantor, after having the instrument re-
corded, himself obtains it from the recording officer,
instead of leaving it with the latter to be called for
by the grantee, does not appear to have any proper
bearing upon the question of the grantor's intention in
having it recorded.^*^ Even though there were the
87. Coulson v. Scott, 167 Ala. Chambers, 227 Mo. 262, 137 Am.
606, 52 So. 436; Union Mut. Life St. Rep. 567, 127 S W. 86;
Ins. Co. V. Campbell, 95 111. Decker v Stansberry, 249 111.
267, 35 Am. Rep. 166; Weber v. 487, Ann. Cas. 1912A, 227, 94
Christen, 121 111. 91, 2 Am. St. N. E. 940.
Rep. 68, 11 N. E. 898; Vaughan 89. See Lewis v. Watson, 98
V. Godman, 94 Ind. 19; Davis v. Ala. 480, 22 L. R. A. 297; Rus-
Davis, 92 Iowa, 147, 60 N. W. sell v. May, 77 Ark. 89, 90 S.
507; Egan v. Horrigan, 96 Me. W. 617; Moore v. Giles, 49 Conn.
46, 51 Atl. 246; Hogadone v. 570; Allen v. Hughes, 106 Ga.
Grange Mut. Fire Ins. Co., 133 775. 32 S. E. 927; Colee v. Colee,
Mich. 339, 94 N. W. 1045; Hoop- 122 Ind. 109, 17 Am. St. Rep.
er V. Vanstrum, 92 Minn. 406, 345. 23 N. E. 687; Collins v.
100 N. W. 229; Koppelmann v. Smith, 144 Iowa, 200, 122 N. W.
Koppelmann, 94 Tex. 40, 57 S. 839; Lay v. Lay, (Ky.), 66 S. W.
W. 570; Elmore v. Marks, 39 371; Mitchell's Lessee v. Ryan,
Vt. 538. 3 Ohio St. 377; Thompson v.
88. See Corley v. Corley, 2 Jones, 1 Head. (Tenn.) 576.
Cold, (Tenn.) 520; Chambers v. But Weber v. Christen, 121 111.
§ 461] Transfer Ixtee Vivos. 1757
fullest intention on the part of tlie grantor that the
instrument should become legally effective, he might
well desire to have it returned to him to hold tempo-
rarily. The fact, however, that the grantor not only
obtains the instrument after its record, but retains it
in his possession, has been regarded as showing that it
has not been delivered.^ *^ Conceding that the record of
the instrument by the grantor is sufficient in itself to
make a prima facie showing of delivery, it is not entirely
clear why his subsequent retention of the instrument
should be regarded as showing a different intention.
That the grantor has the instrument recorded might
properly, it is submitted, overcome any inference of
non-delivery from his subsequent possession of the in-
strument, since, as before remarked, it is difficult to
conceive of any object in having it recorded other than
that it should be legally operative.
It being conceded that a manual transfer of the
instrument by the grantor directly to the recording
officer shows, prima facie, an intention that it shall
operate as a conveyance, it would seem that his manual
transfer of the instrument to another, to be by the
latter handed to the recording officer, might likewise
show such an intention, and there are decisions to this
effect.^^
91, 2 Am. St. Rep. 68, 11 N. Railroad Co. v. Wheeler, 125
E. 893, is apparently contra. Ala. 538, 28 So. 38; Zeigler v.
90. Weber v. Christen, 121 Daniel. 128 Ark. 40:{, 194 S.
111. 91, 2 Am. St. Rep. 68, 11 N. W. 246; Valter v. Blavka, 195
E. 893; Hutton v. Smith, 88 111. 610, 63 N. E. 499; In re
Iowa, 238, 55 N. W. 326; Jourdan Bell's Estate, 1^0 Iowa, 725,
V. Patterson, 102 Mich. 602, 61 130 N. W. 798; Tngersoll v.
N. W. 64; Babbitt v. Bennett, Odendahl, 136 Minn. 428, 162 N.
68 Minn. 260, 71 N. W. 22; El- W. 325; Bobbins v. Rascoe, 120
more v. Marks, 39 Vt. 538; Fair N. Car. 79, 38 L. R. A. 238, 58
Haven Marble & Marbleized Slate Am. St. Rep. 774; Thompson v.
Co. V. Owens, 69 Vt. 246, 37 Atl. .lones, 1 Head (Tcnn.) 576;
749. See King v. Antrim Lumber Bates v. Winters, 138 Wis. 073,
Co., — Okla.— , 172 Pac. 958. 120 N. W. 498.
91. Tennessee Coal, Iron &
2 R. P.— 36
1758 Real Peopebty. [§ 461
It has been frequently asserted that the mere fact
that the instrument is of record raises a presumption of
delivery, without any reference being made to the
identity of the person who had it recorded.-*- The cases
do not ordinarily indicate the basis of this presump-
tion, but occasionally**-^ it has been regarded as based,
to some extent at least, upon the statutory provisions,
existent in most of the states,^^ making an instrument,
duly acknowledged (or proved), and recorded, or a
copy thereof, admissible without further proof. But
this latter view does not appear to accord with the
authorities, before referred to,^^ that the authentica-
tion of an instrument sufficient to justify its admission
in evidence does not create a presumption of its due
execution, A more satisfactory reason for inferring
delivery from the fact that the instrument is of rec-
ord w^ould seem to be the probability that it was placed
on record either by the grantor, thus indicating an
intention on his part to make it operative,^'^ or by the
grantee, thus indicating that it was in his possession,
this itself raising a presumption of delivery.^'^ Any
presumption arising from the mere fact of record might
be overthrown by evidence that the instrument was
92. Estes V. German Nat. 24; Whiting v. Hoglund, 127 Wis.
Bank, 62 Ark. 7, 34 S. W. 85; 135, 7 Ann. Cas. 224, 106 N.
Parker v. Salmons, 101 Ga. 160, W. 391; Laughlin v. Calumet
65 Am. St. Rep. 291; Spencer & Chicago Canal & Dock Co.,
V. Razor, 251 111. 278, 96 N. E. 13 C. C. A. 1, 65 Fed. 441.
300; Witt V. Witt, 174 Iowa, 173, 93. See Napier v. Elliott. 177
156 N. W. 321; Maynard v. Ala. 113, 58 So. 435; MitcheU's
Maynard, 145 Ky. 197, 140 S. W. Lessee v. Ryan, 3 Ohio St. 377;
156; Balin v. Osoba, 76 Kan. Jackson v. Perkins, 2 Wend. (N.
234, 91 Pac. 57; Patrick v. Y.) 317; Goodlett v. Goodman
Howard, 47 Mich. 40, 10 N. W. Coal & Coke Co., 192 Fed. 775,
71; Sweetland v. Buell, 164 N, 113 C. C. A. 61.
Y. 541, 79 Am. St. Rep. 676; 94. These statutes are sum-
Stephenson v. Van Blokland, 60 marized in 3 Wigmore, Evidence,
Ore. 247, 118 Pac. 1026; Mc- §§ 1651, 1676.
Daniel v. Anderson, 19 S. C. 211; 95. Ante, this section, note 81.
Morgan v. Morgan, 82 Vt. 243, 96. Ante, this section, note 82.
137 Am. St. Rep. 1006, 73 Atl. 97. Ante, this section, note 67.
§ 461] Transfer Inter Vivos. 1759
not placed on record by the authority of either the
grantor or grantee,^^ or by other evidence to the eifect
that there was no delivery,'^'^
That the parties to the instrument acted as if the
title to the property had passed to the grantee named has
been regarded as showing or tending to show delivery.^
In regard to this it may be conceded that the fact
that the grantor named acts as if the title had passed
to the grantee named would certainly appear to be
strong evidence of his intention that the instrument
should operate to pass the title.^ That the grantee
named so acts would appear to be strong evidence of
his acceptance of the conveyance, so far as an accep-
tance may be regarded as necessary in the particular
jurisdiction," but it does not seem to have any par-
ticular relevancy to the question whether the grantor
has delivered the instrument, assuming that, as is
believed to be the case, the cjuestion of acceptance is
entirely distinct from that of delivery.
Voluntary settlement. It was said by Chancel-
lor Kent in a quite early New York case,"-'' that a
voluntary settlement is valid, even though the grantor
98. Bouvier-Iaeger Coal Land 10 N. W. 71.
Co. V. Sypher, 186 Fed. 644. 2. See Corley v. Corley, 2
99. Equitable Mtge. Co. v. Poldw. (Tenn.) 520; Donahue
Brown, 105 Ga. 474, 30 S. E. 687: v. Sweeny, 171 Cal. 388, 153 Pac.
McCune v. Goodwillie, 204 Mo. 708; Tweedale v. Barnett, 172 Cal.
306, 102 S. W. 997; Hathaway v. 271, 156 Pac. 483; Tupper v.
Cook, 258 111. 92, 101 N. E. 227. Foulkes, 9 C. B. N. S. 797. That
1. Gould V. Day, 94 U. S. the grantor treats the land as
405, 24 L. Ed. 232; In re Jackson his own, after having signed
Brick & Tile Co., 189 Fed. 636; a conveyance thereof, has been re-
Cribbs v. Walker, 74 Ark. 104, garded as tending to show that
85 S. W. 244; Bruner v. Hart, the conveyance was not delivered.
59 Fla. 171, 51 So. 593; Rode- Little v. Eaton, 267 111. 62;i, 108
meier v. Brown, 109 111. 347, 61 N. E. 727.
Am. St. Rep. 176, 48 N. E. 468; 3. Post, § 463.
Bunnell v. Bunnell, 111 Ky. 566, 3a. Souverbye v. Ardcii, 1
64 S. W. 420, 65 S. W. 607; .Tohns. Ch. 240.
Patrick v. Howard. 47 Mich. 40,
1760 Real Property. [§ 461
retains possession of the instrument, in the absence of
other circumstances to show that it is not intended to
he ahsohite. In view of the fact, w^ell recognized at the
present day if not at that time, that not only a volun-
tary settlement, but any conveyance, may be effective al-
though the physical possession of the instrument re-
mains in the grantor,^ the statement referred to with
reference to voluntary settlements appears to have no
l^articular significance. It has however been quoted
from time to time,^ and it appears to be responsible
for the view, asserted in two or three states, that in
the case of a voluntary settlement, especially when made
in favor of an infant, the law will make stronger pre-
sumptions in favor of delivery than in other cases.'*
In one state it has been said that in the case of such
a settlement the burden of proof is on the grantor
to show that there was no delivery/ Why there should
be a relaxation of the requirements of proof of delivery
in the case of such a settlement is not entirely clear.
It has been said that ''the same degree of formality is
never required, on account of the great degree of
confidence which the parties are presumed to have in
each other, and the inability of the grantee, frequently,
to take care of his own interests."^ As a matter of fact,
however, no formality is necessary in any case for the
delivery of a conveyance, and conceding the necessity
4. Ante, this section, note 43. v. Schooler 258 Mo. 83, 167 S.
5. See WaUace v. Berdell, 97 W. 444.
N. Y. 13; Bryan v. Wash, 7 7. Bryan v. Wash, 7 lU. 557;
111. 557; 1 Perry, Trusts, § 103. Winterbottom v. Pattison, 152
6. Miller v. Meers, 155 111. . 111. 334, 38 N. E. 1050; Abbott
284, 40 N. E. 577; Ln tinier v. v. Abbott, 189 111. 488, 82 Am.
Latimer, 174 111. 418, 51 N. E. St. Rep. 472. But in Hawes v.
548; Abbott v. Abbott, 189 111. Hawes, 177 111. 409, 53 N. E. 78,
488, 82 Am. St. Rep 472; Baker the necessity of a showing of
V Hall, 214 111. 364, 73 N. E. delivery even in the case of a
351; Colee v. Colee, 122 Ind voluntary settlement is clearly
109, 17 Am. St. Rep. 345, 23 N. recognized.
E. 687; Crowder v. Searoy. 103 8. Bryan v. Wash, 7 111. 557.
Mo. 97, 15 S. W. 346; Schooler
§ 461]
Traxsfer Inter Vivos.
1701
of delivery, the reasons suggested for dispensing with
the ordinary proof thereof in this particular case ap-
pear somewhat inadequate. Indeed the fact that the
settlement is voluntary, a gift merely, might well be
regarded as requiring the strictest proof of delivery.^
Date of delivery. Since an instrument of
conveyance operates to transfer the title to the property
only upon delivery, the ascertainment of the date of
delivery is frequently a matter of importance. There
is a rebuttable presumption that the instrument was
delivered on the day on which it is dated,^*^ provided,
at least, it is not acknowledged, or is not acknow-
ledged on a different date. When the date of the in-
strument differs from the date of acknowledgment, the
delivery is by some courts presumed to have taken
place on the former date,^^ and by some on the
9. See Jamison v. Craven, 4
Del. Ch. 311; Hooper v. Van-
strum, 92 Minn. 406, 100 N. W.
229.
10. Williams v. Armstrong,
130 Ala. 389, 30 So. 553; Gordon
V. City of San Diego, 108 Cal.
264, 41 Pac. 301 (statute); Kim-
ball V. Chicago. 253 111. 105, 97
N. E. 257; Sweetser v. Lowell,
33 Me. 446; Schweigel v. L. A.
Shakman Co., 78 Minn. 142, 80
N. W. 871, 81 N. W. 529; Blair
State Bank v. Bunn, 61 Neb.
464, 85 N. W. 527; Crossen v.
Oliver, 37 Ore. 514, 61 Pac. 885;
State V. Dana, 59 Wash. 30, 109
Pac. 191; Douthat v. Roberts,
73 W. Va. 358, 80 S. E. 819;
Wheeler v. Single, 62 Wis. 380,
22 N. W. 569.
11. Smith V. Scarbrough, 61
Ark. 104, 32 S. W. 382; Smiley
V. Fries, 104 111. 416; Lake Erie
etc. R. Co. V Whitham, 155 III.
514, 46 Am. St. Rep. 355, 28
L. R. A. 612; Scobey v. Walker,
114 Ind.. 254, 15 N. E. 674;
Crabtree v. Crabtree, 136 Iowa,
630, 113 N. W. 923, 15 A. & E.
Ann. Cas. 149: McConnell v.
Brown, 6 Lltt. (Ky.) 459; Ford
V. Gregory, 10 B. Mon. (Ky.)
175; Smith v. Porter, 10 Gray.
(Mass.) 66; Conley v. Finn, 171
Mass. 70, 68 Am. St. Rep. 399.
But see Mighill v. Town of Row-
ley, 224 Mass. 586, 113 N. E.
569; People v. Snyder, 41 N. Y.
397; Harriman Land Co. v. Hil-
ton, 121 Tenn. 308, 120 S. W.
162; Kirby v. Cartwright, 48
Tex.. Civ. App. 8, 106 S. W.
742; Beall v. Chatham, (Tex.
Civ App.), 117 S. W. 492; Har-
man v. Oberdorfer, 33 Gratt.
(Va.) 497. In Calligan v. Cal-
ligan, 259 111. 52, 102 N. E. 247.
it is decided that the deed in
presumed to have been delivered
on the day of its date, thongli
not acknowledged till a later
17()2 Real PROPERTir. [^ 462
latter.^- This diiference of view as to whether the date of
acknowledgment should control, in the absence of other
evidence, appears to be the result, to a very considerable
extent, at least, of a difference of view as to the
probability of delivery before acknowledgment,^-" and
the usage of different communities in this regard might
well differ.
§ 462. Conditional delivery. The delivery of a
conveyance, or of any other instrument which takes
effect by delivery, may be conditioned upon the per-
formance of some act or the occurrence of some event.
A conditional delivery is usually referred to as
a delivery "in escrow," or it is said that an instrument
conditionally delivered is delivered as an "escrow."
These forms of expression have the sanction of cen-
turies of usage, and yet it may be questioned whether
they are not calculated to give a wrong impression as
to such a delivery. The word "escrow" meant origi-
nally, it appears, a piece or roll of parchment or paper,
and its use in this connection doubtless has reference
to the fact that an instrument conditionally delivered
is not immediately operative. But an instrument in
the form of a deed, which is conditionally delivered, is
delivered as a deed, an instrument capable of legal
operation, and not as a mere piece of paper. Other-
wise it could not become legally operative upon the
satisfaction of the condition. In the case of a con-
ditional delivery, a delivery in escrow, the maker of the
instrument in effect says : "I now deliver this as my
date, if the acknowledgment waa 336, 122 N. W. 780; Fontaine v.
not necessary to the passing of Boatmen's Sav. Inst., 57 Mo. 552;
title, and only then. Barber Asphalt Pav. Co. v. Field,
12. Kitchener v. Jehlik, 85 174 Mo. App. 11, 161 S. W. 364;
Kan. 684, 118 Pac. 1058; Loomis Bolaskey v. Furey, 12 Phila.
V. Pingree, 43 Me. 299 {semble) ; (Pa.) 428 (semble); Kent v.
Henderson v. Baltimore, 8 Md. Cecil, (Tex. Civ. App.), 25 S.
352 (semble); Blanchard v. Ty- W. 715.
ler, 12 Mich. 339, 86 Am. Dec. 12a. Atite, this section, note
57; Miller v. Peter, 158 Mich. 77.
§ 462] Transfer Inter Vivos.
1763
act and deed, provided such a condition is satisfied,"
and not '*I now deliver this as a mere piece of paper,
provided such a condition is satisfied." The use of
the word ''escrow" in this connection is, however, so
thoroughly established that any question as to its
propriety is necessarily futile, and the expressions
''conditional delivery" and "delivery in escrow" will
here be used for the most part interchangeably.
Physical transfer. Tlie conception of a con-
ditional delivery, a delivery in escrow, as ordinarily
presented in the older English books, is of a transfer
of the possession of the instrument to a third jierson,
as custodian or depositary, with directions to him to
hand it to the grantee or obligee named upon the satis-
faction of the condition,'"' and so in this country the
cases have tended to emphasize the matter of the phys-
ical transfer of the instrument. If, however, the de-
livery of a deed is, as appears to be generally agreed,
merely the expression, either by word or act, of an
intention that the instrument shall have a legal opera-
tion, conditional delivery would seem properly to be
merely an expression of an intention that the instru-
ment sliall have a legal operation provided a certain
condition is satisfied, and adopting such a view, the
physical transfer or custody of the instrument be-
comes of minor importance. An absolute delivery can
be made without a iihysical transfer of the instrument,'^
and it is difficult to see why a conditional deliverv
cannot be so made. There are in England judicial ex-
pressions to the effect that it can.''""' The contrary
view is a relic of the primitive formalism whicli at-
taches some peculiar efficacy to the physical transfer
of the instrument, as involving a symbolical transfer
of the property described therein.
13. Perkins, Conveyancing, §§ 15-16. See Gudgen v. Bessett.
142-144; Sheppard's Touchstone, 6 EH. & Bl. 986; Xenos v. Wlck-
59; 2 Bl. Comm. 307. ham, L. R. 2 H. L. 29(1.
14. Antr, § 461, notes 42, 43.
17()4:
Real Property.
[§ 462
The manual transfer of the instrument, which is
ordinarily assumed to be essential to a conditional
delivery, must, according to the authorities in this
country, be to a person other than the grantee, it being
held that if the grantor, intending to make a conditional
delivery, hands the instrument to the grantee, there is
necessarily an absolute delivery.^^ In England the
older authorities are generally to the same effect,^^ but
there are occasional modern dicta to the contrary.^''
That the mere physical transfer of the instrument
should, in any jurisdiction, be allowed to override the
grantor's explicit declaration of intention that the in-
strument shall not be immediately operative, is a
striking illustration of the persistence of the primitive
formalism before referred to.-^ An instrument mav be
17. Alabama Coal & Coke Co.
V. Gulf Coal & Coke Co., 165
Ala. 304, 51 So. 570; Campbell
V. Jones, 52 Ark. 493, 6 L. R. A.
783; Mowry y. Heney, 86 Cal.
471, 25 Pac. 17; Larsb v. Boyle,
36 Colo. 18, 86 Pac. 1000; Walker
V. Warner, 31 Dist. Colo. App. 76;
Duncan v. Pope, 47 Ga. 445;
Mays V. Shields, 117 Ga. 814, 45
S. E. 68; Whitney v. Dewey, 10
Idaho, 633; 69 L. R. A. 572;
McCann v. Atherton, 106 111. 31;
Potter V. Barringer, 236 111. 224,
86 N. E. 233; Robinson, Norton
& Co. V. Randall. 147 Ky. 45, 143
S. W. 769; Hubbard v. Greeley,
84 Me. 340, 17 L. R. A. 511, 24
Atl. 799; Ward v. Lewis, 4 Pick.
(Mass.) 518; Arnold v. Patrick,
6 Paige (N. Y.) 310; Worrall v.
Winn, 5 N. Y. 229, 55 Am. Dec.
330: Gaston v. City of Portland,
16 Ore. 255. 19 Pac. 127; Keenan
& Wade V. City of Trenton, 130
Tenn. 71, Ann. Cas. 1916B,
519, 168 S. W. 1053; Miller v.
Fletcher, 27 Gratt. (Va.) 403,
21 Am. St. Rep. 356; Richmond
V. Morford, 4 Wash. 337, 30 Pac.
241, 31 Pac. 513; Gaffney v.
Stowers, 73 W. V». 420, 80 S.
E. 501. But see Wilson v. Wil-
son, 158 567, 49 Am. St. Rep.
176, 41 N. E. 1007; Stanley v.
White, 160 111. 605, 43 N. E. 729.
18. They are cited in 13 Vin.
Abr. Fait (O.); Norton, Deeds,
17; 10 Halsbury's Laws of Eng-
land, p. 388. See Co. Litt. 36a;
Sheppard's Touchstone, 59.
19. Watkins v. Nash, L. R.
20 Eq. 262; London Freehold
and Leasehold Property Co. v.
Suffield, L. R. 2 Ch. 608, at p.
621; Hudson v. Pevett, 5 Bing.
368; Bower v. Burdekin, 11 M.
& W. 128, 146.
20. See 4 Wigmore, Evidence,
§§ 2405, 2408. This writer re-
marks in reference to the case
of Hawksland v. Gatchel Cro.
Eliz. 835, which clearly decided
that delivery was conditional, if
so intended, although the instru-
ment was handed to the obligee,
§ 462] Transfer Inter Vivos. 17G5
handed to the grantee or obligee without effecting any
delivery whatsoever,^! and it is difficult to see why it
cannot be so handed without effecting more than a
conditional delivery. So far as the danger of misleading
an innocent third person is concerned, the danger is as
great when there is no delivery as when the delivery
is conditional only. The view referred to has, by a
number of courts, been, repudiated in connection with
bills and notes, with the effect of upholding a condi-
tional delivery thereof in spite of a manual transfer
to the payee,^^ and the same considerations in favor of
its repudiation would seem to apply in the case of deeds
of conveyance. A tendency to break in upon such a
rule is indicated by decisions that it does not ai)})ly
if the instrument shows on its face an intention that
others than those who have executed it shall join in
its execution before it shall become operative,^' as well
as by decisions that the grantor can hand the instru-
ment to the grantee, to be in turn handed by the latter
to a third person to hold it in escrow, without thereby
rendering it immediately operative.^^
Occasional decisions to the effect that an instrument
cannot be regarded as conditionally delivered if it is
handed to the grantee's agent-''' are based upon the
"the authority and vogue of North American Fire Ins. Co., 23
Coke's and Sheppard's writing.s Wend. (N. Y.) 43, 35 Am. Dec.
obscured and suppressed prema- 543; Brown v. Reynolds, 5 Sneed,
•turely this progressive concep- (Tenn.) 639. But see Bramau
tion." V. Bingham, 26 N. Y. 491, for a
21. Ante, § 461, note 47. (lictum contra.
22. 1 Daniel, Negotiable In- 25. Duncan v. Pope, 47 Ga.
struments (6th ed.), § 68a; Nor- 445; Stewart v. Anderson, 59
ton. Bins & Notes (3rd ed.) 71. Ind. 375; Hubbard v. Greeley,
23. Shelby v. Tardy, 84 Ala. 84 Me. 340, 17 L. R. A. 511;
327, 4 So. 276; Ward v. Churn, Wier v. Batdorf, 24 Neb. 83, :i8
18 Gratt. (Va.) 80, 98 Am. Dec. N. W. 22; Worrall v. Munn, 5 N.
749; Wedlinger v. Smith, 75 Va. Y. 229, 55 Am. Dec. 330; Ordinary
309, 40 Am. Rep. 727. v. Thatcher, 41 N. J. L. 403 32
24. Cherry v. Herring, 83 Ala. Am. Rep. 225; Bond v. Wilson,
458, 3 So. 667; Fairbanks v. Met- 129 N. C. 325, 40 S. R. 179.
calf, 8 Mass. 230; Gilbert v.
1766 Keal Property. [§ 462
assumption that such a manual transfer to the grantee's
agent is in effect a transfer to the grantee himself.
Such an assumption is justified, however, only when the
transfer is to the grantee's agent as such; that is, the
mere fact that for other purposes one is the grantee's
agent does not render him such agent for the purpose of
holding possession of the instrument, and it has ac-
cordingly been decided in a number of cases that there
was a valid conditional delivery although the person to
whom the instrument was handed, to hold until satis-
faction of the condition, was for some purposes the
agent of the grantee.^*^
Occasional statements to the effect that an instru-
ment which has been handed to the grantor's agent
cannot be regarded as having been delivered condi-
tionally^'^ appear to be open to question. They are, no
doubt, an outgrowth of the view that there can be no
conditional delivery if the grantor retains possession of
the instrument, it being considered that possession by
the grantor's agent is in effect possession by the grantor
himself. Conceding that there can be no conditional
delivery so long as the grantor retains possession of the
instrument, a view which, as we have seen, appears
somewhat difficult to sustain on principle, it does not
seem that there is the equivalent of such a retention of
possession when the grantor hands the instrument to
another, merely because such other is his agent. That
is to say, the fact that the person to whom he hands the ,
instrument is the agent of the grantor for other pur-
26. Ashford v. Prewitt 102 762, 50 S. E. 262; Watkins v.
Ala. 264, 48 Am. St. Rep. 37; Nash, L. R., 20 Eq. 262.
Dixon V. Bristol Sav. Bank, 102 27. Day v. Lacasse, 85 Me.
Ga. 461, 66 Am. St. Rep. 193; 242, 27 Atl. 124; Van Valken-
Price V. Home Ins. Co., 54 Mo. burg v. Allen, 111 Minn. 333,
App. 119; Cincinnati. R. Co. v. 137 Am. St. Rep. 561, 126 N. W.
Iliff, 13 Ohio St. 235; Fertig v. 1092; Wier v. Batdorf, 24 Neb.
Bucher, 3 Pa. St. 308; Merchants' 83, 38 N. W. 22. Contra. Smith
Ins. Co. of New York v. Nowlin, v. Smith, 173 Cal. 725, 161 Pac.
(Tex. Civ. App.), 56 S. W. 198; 495; McLaughlin v. Wheeler, 1
Blair v. Security Bank, 103 Va. S. D. 497, 47 N. W. 816.
§ 4G2] Transfer Inter Vivos. 17G7
poses does not show that he is his agent as regards
the custody of the document. The practical incon-
venience of the view that there is in such case no con-
ditional delivery would seem to be considerable. Sup-
pose, for instance, the owner of land, having sold it,
signs and seals a conveyance and hands it to his legal
adviser, or other agent, with directions to hand it to
ihe purchaser upon payment of the purchase money.
If this is regarded as an absolute delivery by the vendor,
the legal title passes, contrary to his intention, even be-
fore the payment of the purchase money, while if it
is not regarded as a delivery, the conveyance would not
pass title to the purchaser even on his payment of tlie
price and the physical transfer of the instrument to
him by the agent, unless we adopt the view, which is
believed to be unsound on principle,-'^ that an agent
acting under oral authority may make delivery. The
proper view, it is submitted, of a transaction of the
character referred to, is that a conditional delivery
takes place when the instrument is handed to the agent,
the condition being the payment of the purchase money,
upon the satisfaction of which condition the ownership
passes.
Retention of control. The question whether,
when the instrument has been handed by the grantor
to a third person, it is to be regarded as having been
conditionally delivered, is to be determined with refer-
"ence to the language used by him, construed in the light
of the surrounding circumstances, as showing the
grantor's intention.^'-* That is, as absolute delivery is
28. Ante, § 461, notes 53-58. N. E. 800; Jackson v. Sheldon,
29. Murray v. Stair, 2 B. & 22 Me. 569; Andrews v. Farnham,
C. 82; Bowker v. Burdekin, 11 29 Minn. 246, 13 N. W. 161; Clark
M. & W. 128; Seeley v. Curts, v. Gifford, 10 Wend. (N. Y.>
(Ala.), 61 So. 807; In re Cor- 310; Gaston v. City of Portland,
nelius' Estate, 151 Cal. 550, 91 16 Ore. 255, 19 Pac. 127; Bronx
Pac. 329; White v. Bailey, 14 Inv. Co. v. National Bank of
Conn. 271; Shults v. Shults, 159 Commerce of Seattle, 47 Wash.
111. 654, 50 Am. St. Rep. 188, 43 566, 92 Pac. 380.
1758 iiEAL Pkoperty. [§ 4()2
a question of the grantor's intention/^'' so conditional
delivery is a question of his intention. Such a manual
transfer of the instrument to a third person is com-
patible with either an absolute delivery, a conditional
delivery, or no delivery whatsoever; that is, the
grantor may hand the instrument to a third person with
the intention that it become immediately operative, that
it become operative in case a certain condition is satis-
fied, or with no intention as to its becoming operative.
A conditional delivery differs from an absolute delivery
merely in the fact that it is subject to a condition, and
it is in its nature as final as an absolute delivery.^ ^'^s
For this reason it is difficult to yield our assent to oc-
casional decisions and dicta'* that the grantor may,
when handing the instrument to third person by way of
conditional delivery, retain a right of revocation, so
called, by an express statement that the instrument is
not to become operative even on satisfaction of the
condition if he, the grantor, in the meantime indicates
a desire to the contrary. It is recognized that, after
making a conditional delivery without expressly re-
taining any such right of control, the grantor cannot
prevent the instrument from becoming operative upon
30. Ante, § 461, note 40. Conn. 90, 87 Atl. 35; or for other
31-33. Consequently there is porposes, so long as he retains
no conditional delivery, or any the right to regard it as nullity.
delivery vi^hatsoever, if the grant- Miller v. Sears, 91 Cal. 282, 25
or hands the instrument to a Am. St. Rep. 176, 27 Pac. 589;
third person with a statement Holland v. McCarty, 173 Cal. 597,
that it is not to become opera- 160 Pac. 1069; Hoig v. Adrian
tive until he indicates a desire College, 83 111. 267; Kirby v.
to that effect. Masters v. Clark, Hulette, 174 Ky. 27, 192 S. W.
89 Ark. 191, 116 S. W. 186; 63.
Miller v. Sears, 91 Cal. 282, 25 34. Soward v. Moss, 59 Neb.
Am. St. Rep. 176; Loubat v. Kipp, 71, 80 N. W. 268; Ruggles v.
9 Fla. 60; James v. Vanderhey- Lawson, 13 Johns. (N. Y.) 285,
den, 1 Paige (N. Y.) 385. Or if 7 Am. Dec. 375; Wilkins v.
he hands it to a third person Somerville, 80 Vt. 48, 11 L. R. A.
merely for safe keeping. Dudley (N. S.) 1183, 130 Am. St. Rep.
V. Dodley, 126 Ark. 182, 189 S. 906, 66 Atl. 893.
W. 838; Shelinsky v. Foster, 87
§ 4(Jl'J
Transfer Inter Vivos.
17Gi)
the satisfaction of tlie condition,^^ and there is no reason
why he should be allowed to retain a right of control
by an express statement to that effect while making
delivery.^^ A delivery which the grantor can, at his
option, treat as not a delivery, is incomprehensible,
and in so far as the conveyance may still be subject to
the grantor's control, in the sense that he may treat it
as a legal nullity, it must be considered that there has
been no delivery, conditional or unconditional, and
that he has merely handed the instrument to the de-
pository to hold as his agent.
"Second delivery." One notion as to delivery
in escrow which, though erroneous on principle, and
generally repudiated,^" receives occasional expression,^^
is that such a delivery does not become operative by
35. Tharaldson v. Everts, 87
Minn. 168, 91 N. W. 467; Seibel
V. Higham, 216 Mo. 121, 129 Am.
St. Rep. 502, 115 S. W. 987;
James v. Vanderheyden, 1 Paige
(N. Y.) 385; Stanton v. MUler,
58 N. Y. 192. But see Brown v.
Allbright 110 Ark. 394, 161 S.
W. 1036, for a dictum contra.
36. That there is no delivery
whatsoever if such right of rev-
ocation is retained, see Moore
V. Moye, 122 Ark. 548, 184 S.
W. 63; Roe v. Lovick, 8 Ired.
Eq. (N. C.) 88; Prutsman v.
Baker, 30 Wis. 6'44, 11 Am. Rep.
592; and cases in note 31-33
supra. See also cases to the
same effect in connection with a
delivery to take effect on the
grantor's death, post, note 93.
That there is no delivery in so
far as a right of control stilt
exists in the grantor see ante.
§ 461, note 60.
37. White Star Line Steam-
boat Co. v. Moragne, 01 Ala. 610,
8 So. 867; Cannon v. Handley,
72 Cal. 133, 13 Pac. 315; Couch
V. Meeker, 2 Conn. 302; Davis
V. Clark, 58 Kan. 100, 48 Pac.
563; Francis v. Francis, 143
Mich. 300, 106 N. W. 864; Naylor
V. Stene, 96 Minn. 57, 104 N. W.
685; State Bank v. Evans, 15
N. J. L. 155, 28 Am. Dec. 400;
Craddock v. Barnes, 142 N. C.
89, 54 S. E. 1003; Shirley v.
Ayres, 14 Ohio St. 307; Ketter-
son V. Inscho, 55 Tex. Civ. App.
150, 118 S. W. 626; Prutsman v.
Baker, 30 Wis. 644.
38. See Fuller v. HoUis, 57
Ala. 435; Fitch v. Bunch, 30 Cal.
208, 212; Foster v. Mansfield, 3
Mete. (Mass.) 412; Taft v. Taft,
59 Mich. 185, 60 Am. Rep. 291;
Lindley v. Groff, 37 Minn. 338,
34 N. W. 26; Stephens v. Rine-
hart, 72 Pa. St. 434; 4 Kent's
Comm. 454; 3 Wai-hburn, Real
Prop.. § 2179; 16 Cyclopedia
Law & Proc. 561 n 3.
1770 Real PiiOPERXY. [^, 462
reason of the satisfaction of the condition, unless this
is followed by a manual transfer of the instrument by
its custodian to the grantee named therein, a "second
delivery" as it is sometimes called. It might, of course,
happen that such a transfer is a part of the condition
on which the delivery is made, but that it is not
ordinarily the grantor's intention that the operation of
the instrument shall depend on the custodian's caprice
or convenience in handing or not handing the instru-
ment to the grantee is sufficiently obvious. The fact
that, as is frequently the case, the grantor requests or
directs the custodian to hand the instrument to the
grantee upon the occurrence of the event specified, or
even that the grantor is under the mistaken impression
that such a manual transfer is necessary in order to
render the instrument operative, is no reason for infer-
ring an intention that the instrument shall not be
operative unless such a transfer is made. The neces-
sity of such a physical transfer of the instrument by its
custodian cannot be regarded as involved in the oc-
casional decisions that the grantee may, upon satis-
faction of the condition, recover possession of the instru-
ment from the custodian by suit.^'^ The grantee is en-
titled to its possession because it is a muniment of his
title, and not because its possession by him is necessary
to render it legally operative. This notion of the
necessity of a second delivery is evidently based on the
primitive idea, before referred to, which still so fre-
quently emerges, that the operation of a deed is de-
pendent on the physical transfer of the instrument to
the grantee or obligee.
39. Tombler v. Sumpter, 97 Appeal, 113 Pa. St. 58. 65, 4 Atl.
Ark. 480, 134 S. W. 967; Hardin 461; Gammon v. Bunnell, 22
V. Neal Loan & Banking Co., Utah, 421, 64 Pac. 958 (semble) ;
125 Ga. 820, 54 S. E. 755; Guild Bronx Inv. Co. v. National Bank
V. Althouse, 71 Kan. 604, 81 Pac. of Commerce, 47 Wash. 566, 92
172; Stanton v. Miller, 58 N. Y. Pac. 380; Schmidt v. Deegan, 69
192, 202, 65 Barb. 58; BaXim's Wis. 300, 34 N. W. 83.
§ 462]
Transfer Inter V
IVOS.
1771
Closely connected in its nature and origin with this
notion of the necessity of a second delivery is the con-
tention, occasionally made, that if the custodian of the
instrument hands it to the grantee before the satisfac-
tion of the condition, the instrument becomes immedi-
ately operative. This contention has met with no favor,
tliere being a considerable number of decisions that
an instrument delivered in escrow does not thus be-
come innnediately operative by reason of such a trans-
fer to the grantee of the possession of the i^strumont.^*'
And this has been held to be so even as against a
subsequent innocent purchaser for value from the
grantee,^ ^ unless the grantor, in giving the grantee pos-
session of the land in addition to relinquishing control
of the instrument, was guilty of such negligence as to
be precluded from asserting that the instrument was
delivered merely in escrow.^^ The grantor may, how-
40. Calhoun County v. Ameri-
can Emigrant Co., 93 U. S. 124,
127, 23 L. Ed. 826; Ober v.
Pendleton, 30 Ark. 61; Heney
V. Pesoli, 109 Cal. 53, 41 Pac.
819; Stanley v. Valentine, 79
111. 544; Jackson v. Rowley, 88
Iowa, 184, 55 N. W. 339; Dag-
gett V. Daggett, 143 Mass. 516,
10 N. E. 311; Black v Shreve,
13 N. J. Eq. 455, 4JB; Hinman
V. Booth, 2 Wend. (N. Y.) 267;
Thornhill v. Olson, 31 N. D. 81,
L. R. A. 1916A, 493, Ann Cas.
1917E, 427, 153 N. W. 442;
Powers V. Rude, 14 Okla. 381;
Bradford v. Durham, 54 Ore. 1,
l.-^S Am. St. Rep. 807, 101 Pac.
897; Sharp v. Kilborn, G4 Ore.
371, 130 Pac. 735; Etheredge v.
Aetna Ins. Co., 102 S. C. 313,
86 S. E. 687; Schmidt v. Mus-
son, 20 S. D. 389, 107 N. W. 367;
Morris v. Blunt, 35 Utah, 194,
99 Pac. 686.
41. Dixon V. Bristol Sav.
Bank, 102 Ga. 461, 31 S. E. 96,
66 Am. St. Rep. 193; Forcum v.
Brown, 251 111. 301, 96 N. E. 259;
Jackson v. Lynn, 94 Towa, 151,
58 Am. St. Rep. 386, 62 N. W.
704; Seibel v. Higham, 216 Mo.
121, 129 Am. St. Rep. 502, 115
S. W. 987 (semhle) ; Harkreader
V. Clayton, 56 Miss. 383, 31 Am.
Rep. 369; Wood v. French. 39
Okla. 685, 136 Pac. 734; Boswell
V. Pannell, — Tex. Civ. App. — ,
146 S. W. 233; Smith v. South
Royalton Bank, 32 Vt 341;
Everts v. Agnes, 4 Wis. 343, 65
Am. Dec. 314, 6 Wis, 453; Frank-
lin V. Killilea, 126 Wis. 88, 104
N. W. 993; Cobban v. Conklin,
125 C. C. A. 451, 208 Fed. 231;
United States v. Payette Lum-
ber & Mfg. Co., 198 Fed. 88.
See ante, § 461, note 50.
42. Bailey v. Crim, 9 Biss.
(U. S.) 95; Mays v. Shields, 117
1772
Eeal Peopkbty.
[§ -t62
ever, it is said, waive the condition, as by recognizing
the instrument as operative although the condition has
not been satisfied,^^ and even his mere failure, for an
unreasonable time, to take measures to cancel or other-
wise nullify the instrument after it has passed into the
grantee's control may preclude him from thereafter as-
serting, as against an innocent purchaser, that his de-
livery thereof was conditional.^^
A distinction in this regard is asserted in some of
the books between an instrument delivered as an escrow,
not to take eifect as the grantor's deed until the satis-
faction of a condition, and an instrument handed to a
third person, as the grantor's deed, to be "delivered"
to the grantee upon the satisfaction of a condition;
it being said that, in the latter case, as distinguished
from the former, the instrument is the grantor's "deed
presently," and if the grantee obtains possession thereof
even before the satisfaction of the condition it becomes
Ga. 814, 45 S. E. 68; Quick v.
Milligan, 108 Ind. 419, 58 Am.
Rep. 49; Hubbard v. Greeley, 84
Me. 340, 17 L. R. A. 511, 24 Atl.
799; Schurtz v. Colvin, 55 Ohio
St. 274, 45 N. E. 527; Wood v.
French, 39 Okla. 685, 136 Pac.
734; Blight v. Schenck, 10 Pa.
St. 285, 51 Am. Dec. 478; Spotts
V. Whitaker, — Tex. Civ. App. — ,
157 S. W. 422; King v. Diffey,
—Tex. Civ. App.—, 192 S. W.
262.
And that the grantor may be
estopped by reason of his failure
to 'act promptly against the
grantee after the wrongful acqui-
sition of the instrument by the
latter, see Allen v. Powell, (Ind.
App,), 115 N. E. 96; Baillarge
V. Clarke, 145 Cal. 589, 104 Am.
St. Rep. 75, 79 Pac. 268; Leonard
v. Shale, 266 Mo. 123, 181 S. W.
16. See i)Ost, § 462, note 44.
43. Jackson v. Badham, 162
Ala. 484, 50 So. 131; Mays v.
Shields, 117 Ga. 814, 45 S. E.
68; Eggleston v. Pollock, 38 Neb.
188, 56 N. W. 805; Oland v.
Malson, 39 Okla. 456, 135 Pac.
1055; Truman v. McCollum, 20
Wis. 70.
As well suggested in Mr.
Ewart's admirable work "Waiver
Distributed," at p. 130, in such
a case of waiver, so called, of the
condition on which delivery is
made, the condition is to be re-
garded as being subject, in its
creation, to the grantor's option,
that is, the grantor has the
privilege of having it regarded
as conditional or not conditional.
44. Mays v. Shields, 117 Ga.
814, 45 S. E. 68; Haven v. Kra-
mer, 41 Iowa, 382; Johnson v.
Erlandson, 14 N. D. 518, 105 N.
W\ 722; Connell v. Connell, 32
§ 462]
Tbansfek Inter Vivos.
1773
immediately operative.^ ^ This distinction is strongly
asserted in one case in this country,-*^ and in a few
others it is referred to in terms of approval.*" In
others it has been repudiated*^ or referred to as ques-
tionable.*^ The old books in which this distinction is
asserted make it hinge upon the language used by the
grantor or obligor in handing the instrument to the
intended custodian, that is, upon whether the grantor
handed it as his deed or as an escrow, it being re-
garded as his "deed presently" if referred to by him
as his deed.^*' At the present day it is ejitirely im-
material whether the grantor refers to the instrument
as an escrow or as his deed, and the fact that the
grantor directs the person to whom he hands the instru-
ment to hand or "deliver" it to the grantee only upon
the satisfaction of a condition would ordinarily be re-
W. Va. 319, 9 S. E. 252. See
ante, § 461, note 51. That the
grantor may have the instrument
cancelled If prematurely handed
by its custodian to the grantee,
see Anderson v. Goodwin, 125 Ga.
663, 54 S. E. 679; Bales v.
Roberts, 189 Mo. 49, 87 S. W.
914. That he may have its
record enjoined, see Matteson v.
Smith, 61 Neb. 761, 86 N. W.
472.
45. Comyn's Dig. Fait, A 3;
Perkins, Conveyancing, §§ 143,
144; Sheppard's Touchstone, 59;
Bushell V. Pasmore, 6 Mod. 217.
The distinction is recognized in
Murray v. Stair, 2 B. & C. 82,
but apparently repudiated in
Johnson v. Baker, 2 B. & Aid.
440.
46. Wheelwright v. Wheel-
wl"ight, 2 Mass. 447, 3 Am. Dec.
66.
47. Hathaway v. Payne, 34 N.
Y. 92; Martin v. Flaharty, 13
Mont. 96, 40 Am. St. Rep. 415;
2 R. P.— 37
Ball V. Foreman, 37 Ohio St.
132; Prutsman v. Baker, 30 Wis.
644, 11 Am. Rep. 592; Wells v.
Wells, 132 Wis. 73, 111 N. W.
1111.
48. State Bank at Trenton v.
Evans, 15 N. J. L. 155, 28 Am.
Dec. 400; Hall v. Harris, 5 Ired.
Eq. 303.
49. See Jackson v. Sheldon,
22 Me. 569; Wellborn v. Weaver,
17 Ga. 267, 63 Am. Dec. 235.
"The distinction on this point
is quite subtle, and almost too
evanescent to be relied on." 4
Kent's Comm. 455, n.
50. In Murray v. Stair, 2 B. &
C. 82, it is said that the word
"escrow" need not be used to
make a delivery in escrow, but
no criterion for the application
of the asserted distinction Is in-
dicated. See the judicious re-
marks of Hornblower, C. J., In
State Bank at Trenton v. Evans,
15 N. J. L. 158, 28 Am. Dec.
400.
1774 Real Propeety. [§ 462
garded as showing that the original delivery of the in-
strument was conditional only. There is, it is sub-
mitted, absolutely no distinction between an instrument
conditionally delivered as an escrow and one con-
ditionally delivered as a deed, and neither can take
effect until the condition is satisfied. There is, it is
true, a dictum of Chief Justice Shaw^ to the apparent
effect that an instrument can be regarded as an escrow
only when the delivery is conditioned upon the per-
formance of some act by the grantee or obligee, while it
is the grantor's "deed presently" if conditioned upon
the occurrence of some other character of *event,^^ but
as he cites no authority and states no reason in sup-
port of the dictum, it may, it is submitted, be disre-
garded, in view especially of the fact that there are
quite a number of cases'^- in which it is assumed with-
out question that an instrument conditionally delivered
is an escrow, although the condition does not involve
the voluntary performance of any act by the grantee or
obligee.
Necessity of contract. It has been asserted in
a number of cases that there can be no delivery in
escrow unless it takes place as the result of an actual
contract of sale between the parties to the instrument,
51. Foster V. Mansfield, 3 Mete. Am. St. Rep. 785, 14 Pac. 580;
(Mass.) 412, 37 Am. Dec. 154. McDonald v. Huff, 77 Cal. 279, 19
The dictum is quoted with ap- Pac. 499; Raymond" v. Smith, 5
proval in Fine v. Lasater, 110 Conn. 555; Stone v. Duvall, 77
Ark. 425, Ann. Cas. 1915C, 385, 111. 475; Shults v. Shults, 159
161 S. W. 1147; Grilley v. At- 111. 654, 50 Am. St. Rep. 188,
kins, 78 Conn. 380, 4 L. R. A. 43 N. E. 800; Fitzgerald v. Allen,
(N. S.) 816, 112 Am. St. Rep. 240 111. 80, 88 N. E. 240; Millett
152, 62 Atl. 337; Taft v. Taft, 59 v. Parker, 2 Mete. (Ky.) 608;
Mich. 185, 60 Am. Rep. 291; Hoagland v. Beckley, 158 Mich.
Stephens v. Rinehart, 72 Pa. St. 565, 123 N. W. 12; Price v. Home
434; Landon v. Brown, 160 Pa. Ins. Co., 54 Mo. App. 119; Gil-
St. 538, 28 Atl. 921. bert v. North American Fire Ins.
52. See e. g.; Prewitt v. Ash- Co., 23 Wend. (N. Y.) 44, 35
ford, 90 Ala. 294, 70 So. 831; Am. Dec. 543; Tooley v. Dibble,
Conneau v. Geis, 73 Cal. 176, 2 2 Hill. (N. Y.) 641; Payne v.
§ 462]
Transfer Inter Vivos.
1775
as, for instance, when the delivery is conditioned upon
the payment by the grantee of an agreed price for the
land. This view appears to have been first asserted in
a California case,^^ which, without naming any authority,
stated this as one possible ground of its decision, and
this was the only authority cited in a subsequent case
in Wisconsin, ^^ which explicitly decided that in the
absence of a valid and enforceable contract between the
parties for the sale of the land, there could be no
delivery in escrow. On the authority of this latter case
and of one of the text books hereafter referred to, the
same view^ was adopted, without discussion, by the
Supreme Court of Utah,'^^ and it was likewises adopted
in Oregon"'''^ upon the authority of text book statements
alone. There are occasional decisions to the same effect
in other States,^^ and various text books, on the
authority of one or more of the cases above referred to,
state this as settled law."''' The idea at the basis of this
asserted requirement of an auxiliary contract in con-
nection with conditional delivery appears to be that, in
the absence of such a contract, the grantor can control
the operation of the instrument, that, in other words,
Smith, 28 Hun (N. Y.) 104;
Clarke v. Eureka County Bank,
123 Fed. 922.
53. Fitch V. Bunch, 30 Cal.
208, approved in Miller v. Sears,
91 Cal. 282, 25 Am. St. Rep. 176;
Holland v. McCarthy, 173 Cal.
597, 160 Pac. 1069. Professor
R. W. Aigler considers that this
case first cited merely asserted,
in effect, that the absence of a
contract of sale is conclusive, or
approximately conclusive, that no
delivery has been made, that, in
other words, the depositary holds
it subject to the grantor's con-
trol. See article 16 Mich. Law
Rev. 569.
54. Campbell v. Thomas, 42
Wis. 437, 24 Am. Rep. 427.
55. Clark v. Campbell, 23
Utah, 569, 54 L. R. A. 508, 90
Am. St. Rep. 716, 65 Pac. 496.
56. Davis v. Brigham, 56 Ore.
41. 107 Pac. 961, Ann. Cas. 1912B,
1340, followed in Foulkes v. Seng-
stacken, 83 Ore. US, 163 Pac. 311.
57. Main v. Pratt, 276 111.
218, 114 N. E. 576; McLain v.
Healy, 98 Wash. 489, 168 Pac. 1;
Freeland v. Charnley, 80 Ind.
132. See Seibert v. Lanz, 29 N.
D. 139, 150 N. W. 568.
58. 16 Cyclopedia Law & Proc.
562; 11 Am. & Eng. Encyc. Law
(2d Ed.), 335; 1 Devlin, Deeds,
31.'].
1776 Eeal Property. [§ 462
he may revoke the delivery.^^ Such an idea is, it is
conceived, absolutely erroneous,^*^ and involves an en-
tire misapprehension of the nature of conditional de-
livery. After the delivery of the instrimaent of con-
veyance, whether absolutely or conditional, the parties
stand in the relation, not of vendor and purchaser under
a contract but of grantor and grantee under a convey-
ance, and consequently the question of the existence of
a valid contract of sale, is immaterial.'^ ^ There is no
more reason for regarding the conditional delivery of
a conveyance as invalid in the absence of an enforciblo
contract of sale than for so regarding an absolute de-
livery.
The view referred to, that a contract is necessary
to a conditional delivery, has no considerations of policy
or convenience in its favor, and its necessary result is
considerably to detract from the practical utility of the
doctrine of conditional delivery. Apart from the fact
that it involves a misapprehension of the nature of
conditional delivery, the following additional objections
thereto may be suggested. In the first place, the doc-
trine of conditional delivery is not peculiar to convey-
ances of land, but is recognized also in connection with
contracts under seal and also bills and notes. If there
can be no conditional delivery of a conveyance in the
absence of a contract of sale, that is, a contract to
execute a conveyance, it would seem a reasonable infer-
ence that there can be no conditional delivery of a
contract under seal or a promissory note unless there
is a contract to execute such an instruipent. There is
no more reason for requiring an auxiliary contract in
the one case than in the others. Yet it has never been
suggested, so far as the writer is informed, that there
59. See particularly Campbell 61. This is well stated in an
V. Thomas, 42 Wis. 437, 24 Am. editorial note in 15 Mich. Law
Rep. 427, for an assertion to this Rev. 579, by Professor R. W.
effect. Aigler. See also article by the
60. Ante, this section, note 35. same writer, 16 Id. 569.
§ 462] Transfer Inter Vivos. 1777
can be a conditional delivery of a contract under seal
or a promissory note, only when there is a legally valid
contract to execute the contract or note. Furthermore,
a valid conditional delivery may occur in connection with
transactions not involving a sale, in the case of a gift,
for instance. There can obviously be no contract of
sale in such case to support the validity of the delivery,^^
ye^ if a contract of sale is necessary to support a con-
ditional delivery in the one case, how can such a delivery
be valid without a contract of sale in the other?
Another consideration adverse to the view referred to
lies in the fact that, while the doctrine of delivery in
escrow was recognized in the common-law courts at
least as early as the tirst half of the fifteenth century ,•'•'•
a purely executory contract, not under seal, was not
there enforceable at that time.^^ That being the case, the
requirement of an extraneous contract in order to
make the delivery in escrow effective w^ould, in the
fifteenth or sixteenth centuries, have necessitated a con-
tract under seal, and it seems hardly probable that such
a delivery of an obligation or conveyance under seal
was ahvays accompanied by another obligation under
seal calling for its execution. The subject of delivery
in escrow is treated with considerable fullness in at
least two of the earlier books,^^ and there is not the
slightest suggestion in either as to the necessity of
such an auxiliary contract. It is, to say the least, some-
what extraordinary that an integral element in a
doctrine dating from the commencement of the fifteenth
62. This is recognized in Hoi- 6, 25.
land V. McCarthy, 173 Cal. 597, 64. Ames, History of Assump-
160 Pac. 1069, where it is ac- sit, 2 Harv. Law Rev. 1, 5.i, re-
cordingly stated that though a printed in Lectures on Legal
contract is necessary in other History, 129, 149; 3 Holdsworth,
cases of conditional delivery, it Hist. Eng. Law 336-349; Pollock,
is not necessary when it is made Contracts (8th Ed.) 148.
in pursuance of a gift. 65. Perkins. Conveyanring. §§
63. See Y. B. 13 Hen. 4. 8; 138. 144; Sheppard's Touchstone.
Y. B. 8 Hen. 6. 26; Y. B. 10 Hen. 58, 59.
1778 Keal Peoperty. [§ 462
centurj^ should have remained to be discovered by a
California court in the latter half of the nineteenth.
In addition to the cases above referred to which
assert that existence of a contract of sale is necessary
in order that a conveyance may be delivered in escrow,
there are to be found judicial suggestions to the effect
that the ''deposit in escrow," that is, the physical
transfer of the instrument by the grantor or obligor to
a third person, to hold until satisfaction of the con-
dition, must be in pursuance of a contract between the
parties.^^ Thus it has been said in one case that the
making of a deed in escrow presupposes a contract
pursuant to which the deposit is made,*^^ and in another
that there must be a contract which prevents the grantor
from recalling the deed.''^ The idea that, in the ab-
sence of a contract, the grantor can recall the deed is,
as before remarked, without any support in principle,
and there is, it is submitted, no more necessity of a
contract in regard to its custody when the delivery is
conditional than when it is unconditional.
Satisfaction of condition. Properly considered,
conditional delivery, or delivery in escrow, is the same
as any other delivery, except that it is subject to the
satisfaction of a condition. After the condition has
been satisfied, there is an operative conveyance^'^ which
is to be regarded as having been delivered at the time
of its conditional delivery, for the obvious reason that
it was then, and then only, that it was delivered, though
66. See Fitch v. Bunch, 30 of which three cases supports the
Cal. 208; Wellborn v. Weaver, statement in the slightest degree.
17 Ga. 267. 69. If the condition is satis-
67. Stanton v. Miller, 58 N. fied, the operation of. the con-
Y. 192. veyance is obviously not prevent-
68. Anderson v. Messenger (C. ed by the fact that the grantor
C. A.) 158 Fed. 250, citing James reacquires possession of the in-
V. Vanderheyden (N. Y.) 1 Paige, strument. Wymark's Case, 5 Co,
385; Cook v. Brown, 34 N. H. Rep. 74; Regan v. Howe, 121
460; and Prutsman v. Baker, 30 Mass. 424; Bauni's Appeal, 113
Wis. 644, 11 Am. Rep. 592, none Pa. St. 58, 4 Att. 461.
§ 462] Transfer Inter Vivos. 1779
the ownership cannot be regarded as having passed
until it actually did pass, that is, until the satisfaction of
the condition. The grantor in effect says, at the time
of handing the instrument to the intended custodian,
"I now deliver this as my deed provided such a thing
is done or occurs." That the delivery of the instru-
ment and the passing of the ownership thus occur at dif-
ferent times is, it is conceived, the solution of the some-
what vague statements in the books, that, on the satis-
faction of the condition, the deed will relate back to the
time of delivery in order to uphold the deed, or to do
justice, or to carry out the intention of the parties,'^'^
and it will serve to explain most of the decisions in
this regard. The analogy may be suggested of an exec-
utory limitation contained in a conveyance inter vivos,
which does not vest an estate until satisfaction of the con-
dition precedent, but which, when the condition is satis-
fied, takes effect regardless of events or transactions
which may have taken place since the time of the de-
livery of the conveyance. Accordingly, the fact that the
grantor dies,'^^ or becomes incapitated,'^- between the
70. Price v. Pitsburg, Ft. W. ^9, 72.
& C. R. Co., 34 in. 13; Hoyt v. 71. Davis v. Clark, 58 Kan.
McLagan, 87 Iowa, 746, 55 N. W. 100, 48 Pac. 563; Cook's Adm'r
18; Mohr v. Joslin, 162 Iowa, 34, v. Hendricks, 4 T. B. Mon. (Ky.)
142 N. W. 981; Baker v. Snave- 500; Wheelwright v. Wheelwright,
ley, 84 Kan. 179, 114 Pac. 370; 2 Mass. 447, 3 Am. Dec. 66;
Taft V. Taft, 59 Mich. 185, 60 Tharaldson v. Everts, 87 Minn.
Am. Rep. 291; Simpson v. Mc- 168, 91 N. W. 4G7; Schooler v.
Glathery, 52 Miss. 723; Frost v. Schooler, 258 Mo. 83, 167 S. W.
Beekman, 1 Johns. Ch. 288; 444; Webster v. Kings County
Craddock v. Barnes, l42 N. C. Trust Co., 145 N. Y. 275, 39 N.
89, 54 S. E. 1003; Shirley v. E. 964; Jackson v. Jackson, 67
Ayres, 14 Ohio, 307, 45 Am Dec. Ore. 44, Ann. Cas. 1915C, 373,
546; May v. Emerson, 52 Ore. 135 Pac. 201; Gammon v. Bun-
262, 16 Ann. Cas. 1129, 96 Pac. nell, 22 Utah, 421, 64 Pac. 958;
454, 1065; Landon v. Brown, 160 Bronx Inv. Co. v. National Bank
Pa. 538, 28 Atl. 921; Foxley v. of Commerce, 47 Wash. 566, 92
Rich, 35 Utah, 162, 99 Pac. 666; Pac. 380; Perryman's Case, 5
Spring Garden Bank v. Hulings Co. Rep. 84.
Lumber Co., 32 W. Va. 357, 3 L. 72. Perkins, Conveyancing. §§
R. A. 58;{; Sheppard's Touchstone, 10, 140; Jennings v. Bragg, Cro.
1780
Real Property.
[§ 462
time of the delivery of the instrument and the satis-
faction of the condition, does not affect the validity of
the instrument as a conveyance. And likewise, if the
grantee dies during such interval of time, the possibility
of ownership vests in his heir.'^^ So the instrument is
to be regarded as having been delivered at the time of
the conditional delivery, as against an intermediate
purchaser from the grantor, and is entitled to priority,
unless such purchaser is a bona fide purchaser for value,
and as such protected against a conveyance prior in
time.'''^ And as against a creditor of the grantor in favor
of whom a lien accrues by attachment or judgment
intermediate the delivery and the satisfaction of the
condition, the grantee takes priority,'^^ unless such
creditor is, by the recording law of the particular juris-
diction, entitled to the protection accorded a bona fide.
purchaser.'^'' On the other hand, since the title does not
Eliz. 447; Butler's Case, 3 Co.
Rep. 25; Davis v. Clark, 58 Kan.
100, 48 Pac. 563; Wheelwright
V. Wheelwright, 2 Mass. 447, 3
Am. Dec. 66; Simpson v. Mc-
Glathery, 52 Miss. 723.
73. Ferryman's Case, 5 Co.
Rep. 84; Prewitt v. Ashford, 90
Ala. 294, 7 So. 831; Stone v.
Duvall, 77 111. 475; Lindley v.
Groff, 37 Minn. 338, 34 N. W.
26; Webster v. Kings County
Trust Co., 145 N. Y. 275, 39 N.
E. 964; Perry v. Perry, 170 App.
Div. 525, 155 N. Y. Supp. 954.
74. McDonald v. Huff, 77 Cal.
279, 19 Pac. 499; Whitmer v.
Schenck, 11 Idaho. 702, 83 Pac.
775; Leiter v. Pike, 127 111. 287;
20 N. E. 23; Wright v. Astoria
Co., 45 Ore. 224, 77 Pac. 599; Wil-
kins V. Somerville, 80 Vt. 48, 11 L.
R. A. (N. S.) 1183, 130 Am, St.
Rep. 906, 66 Atl. 893. As against
equities accruing before the con-
ditional delivery, the grantee in
the deed conditionally delivered,
like any other grantee, cannot
claim as a bona fide purchaser
for value unless he paid value
before receiving notice. See
Baker v. Suavely, 84 Kan. 179,
114 Pac. 370.
75. Whitfield . v. Harris, 48
Miss. 710; Simpson v. McGlath-
ery, 52 Miss. 723; Hall v. Harris,
(N. C), 5 Ired. Eq. 303; see
Dettmer v. Behrens, 106 la. 585,
68 Am. St. Rep. 326, 76 N. W.
853; Shirley's Lessee v. Ayres,
14 Ohio, 307. Contra, Jackson v.
Rowland, (N. Y.), 6 Wend. 66;
Wolcott V. Johns, 7 Col. App.
360, 44 Pac. 675 {dictum); Taft
V. Taft, 59 Mich. 185, 60 Am.
Rep. 291.
76. See May v. Emerson 52
Ore. 262, 16 Ann. Cas. 1129, 96
Pac. 454; Riddle v. Miller, 19
Ore. 468, 23 Pac. 807.
§ 462] Transfer Inter Vivos. 1781
pass as of the time of the conditional delivery, a dis-
tress levied by the grantor before the satisfaction of
the condition is valid." And the grantor is entitled to
the rents and profits of the land until the condition is
satisfied,'^ except when, owing to the pajTnent by the
grantee of interest on the purchase price, the court,
in the equitable adjustment of the rights of the parties,
gives the rents and profits to the grantee."^ And the
grantor has been properly considered the owmer of the
land for the purpose of signing a petition for the organ-
ization of a drainage district,^^ as well as for the pur-
pose of imposing upon him a liability for taxes.^^
Decisions to the effect that, upon the satisfaction of the
condition, the grantee's title, that is, his ownership,
relates back to the time of the delivery, for the puri)ose
of validating an intermediate quit-claim conveyance by
the grantee,^2 appear to be questionable, as are, it is
submitted, decisions that, while a conveyance to a
non-existent corporation is ordinarily invalid, sucli a
conveyance is valid if its delivery is conditional upon
the formation of the corporation named, and such a
corporation is subsequently formed.^^ /
As the death of the grantor before the satisfaction
of the condition does not affect the validity of the
77. Oliver v. Mowat, 34 Up. the time of the delivery, so call-
Can. Q. B. 472. ed, involved in the manual trans-
78. Perkins, Conveyancing, § fer of the instrument by the
10. depository to the grantee, ap-
79. Price v. Pittsburg R. Co., pears questionable.
34 111. 13; Scott v. Stone, 72 Kan. 82. Beekman v. Frost (N. Y.)
545, 84 Pac. 117. 18 Johns. 544, 9 Am. Dec. 246;
80. Hull V. Sangamon River Tooley v. Dibble (N. Y.) 2 Hill,
Drainage District, 219 111. 454, 641. That It does not relate back
76 N. E. 701. for this purpose, see 2 W^illianis,
81. Mohr V. Joslin, 142 N. W. Vendor & Purchaser (2d Ed.)
981. 1251, note (d), referred to in
The decision in McMurtrey v. 10 Halsbury's Laws of England.
Bridges, 41 Okla. 264, 137 Pac. 390, note (m).
721, that a warranty against 83. Spring Garden Bank v.
taxes at the "time of delivery" Hulings Lumber Co., 32 W. Va.
of the conveyance meant taxes at 357, 3 L. R. A. 583; Santaquin
1782 Eeal Peopeety. [§ 462
delivery made by him, so one may make delivery sub-
ject to a condition which cannot, by its terms, be satis-
fied until after his death. A judicial statement to the
effect that if the condition cannot be satisfied until
after the grantor's death, the instrument is neces-
sarily testamentary in character,^^ appears to be based
on the mistaken view that such a condition makes the
transfer revocable so long as the grantor lives.
Since so long as the condition is not satisfied, the
title does not pass, it results that when it becomes as-
sured that the condition will never be satisfied, the
instrument loses all possible efficacy. In such case the
grantor will ordinarily desire to have the instrument
returned to him, to preclude the possibility^ of its after-
wards being utilized to his detriment, but the deposi-
tary may properly retain the instrument so long as
there is the slightest uncertainty as to the ultimate satis-
faction of the condition. Occasional expressions*^
to the effect that the action of the depositary in retain-
ing the instrument or returning it to the grantor has in
itself some effect on the rights of the grantor and gran-
tee are, it is submitted, erroneous. If the condition
can never be satisfied, the instrument can never be
operative, regardless of who has the possession, and if
the condition is satisfied, that the instrument has in
some way passed into the possession of the grantor
does not prevent its operation.*'^
Min. Co. V. High Roller Min. Co., Cas. 1915C, 373, 135 Pac. 201;
25 Utah, 282, 71 Pac. 77. In Gammon v. Bunnell, 22 Utah,
these two cases a significance is 421, 64 Pac. 958.
imputed to the "second delivery" 85. Taft v. Taft, 59 Mich. 185,
to which it is not entitled. 60 Am. Rep. 291, approved in
84. Dettmer v. Behrens, 106 Culy v. Upham, 135 Mich. 131,
Iowa, 585, 68 Am. St. Rep. 32?; 106, Am. St. Rep. 388.
Nolan V. Otney, 75 Kan. 311, 9 86. Brown v. Allbright, 110
L. R. A. (N. S.) 317, 89 Pac. Ark. 394, Ann. Cas. 1915D, 692,
690; Stockwell v. Shalit, 204 161 S. W. 1036; Hall v. Yaryan,
Mass. 270, 90 N. B. 570; Jack- 25 Idaho, 470, 138 Pac. 339.
son v. Jackson, 67 Ore. 44, Ann. 87. Ante, this section, note 69.
§ 462] Transfer Inter Vivos. 1783
The cases upon the question of the burden of proof
in connection with a conditional delivery are few and
not entirely satisfactory. In view of the ordinary
presumption of delivery from the grantee's possession
of the instrument,*"^ it would seem that, if the grantee
has such possession, it is for the grantor to show that
though the instrument was delivered, the delivery was
conditional,'^'*'' and for the grantee to show that the
condition was satisfied.-^''
Delivery conditioned on death. Not infre-
quently the grantor hands the instrument to a third per-
son with a request or direction that he hand it to the
grantee named upon the grantor's death, or otherwise
indicates his intention that it shall become fully opera-
tive only upon his death. Such action has usually been
regarded as involving a delivery of a conditional or
quasi-conditional character, in that an instrument so
delivered does not operate in exactly the same manner
in which it would have operated had there been no refer-
ence to the grantor's death. There is, however, ati
obvious distinction betw^een such a delivery and an
ordinary conditional delivery. In the latter case the
condition may never be satisfied, while in the former
the condition, that of death, must necessarily be satis-
fied. A delivery conditioned upon a condition whicli
cannot fail to be satisfied is strictly speakinsi', not a
conditiv)nal delivery. The courts might have taken
this view, that such a delivery is not properly subject;
to any condition, and that consequently the instrument
operates exactly as if there had been no reference to the
grantor's death, l)ut this they have not done. Tliey
88. Ante, § 461, note 67. Kavanaugh, 260 111. 179, 11)3, N.
88a. Evans v. Gibbs, 6 Humph. E. 65.
(Tenn.) 405; Union Bank v. 88b. Black v. Shreve. 13 N.
Ridgely, 1 Harr. & G. (Md.) J. Eq. 455; Kavanaugh v. Kava-
324; Black v. Shreve, 13 N. J. naugh, 260 111. 179, 103 N. E.
Eq. 455. But see Kavanaugh v. 65. Contra, Swain v. McMillan,
30 Mont. 433, 76 Pac. 94.1.
1784 Real Property. [§ 462
have regarded the reference to death in such case,
in connection with the delivery, as in some way aifect-
ing the operation of the conveyance, without, however,
any entirely satisfactory elucidation of the matter.
The courts have not infrequently said that, upon
such a delivery, the title passes immediately, subject to
a life estate in the grantor,^^ or with the right of
possession postponed.^" If this means that a con-
veyance so delivered creates two estates, a particular
estate for life in the grantor and an estate in the
nature of a remainder or reversion in the grantee, the
propriety of the statement appears to be somewhat
open to question. Thus to give to a conveyance in terms
creating only an estate in fee simple, the additional
effect of creating an estate for life in the grantor, does
considerable violence to its language, and furthermore
it gives to the matter of delivery an operation to which
it is not entitled. The function of delivery is to determine
whether the instrument shall be operative, not the
estate or estates which the instrument shall create when
it does become operative.
Another theory which may be suggested as to such a
delivery with reference to the grantor's death is that,
by reason of the language used at the time of handing
the instrument to its custodian, the conveyance, though
in terms creating a vested estate in fee simple in the
grantee, creates merely a prospect of an estate, which
89. Bury v. Young, 98 Cal. 797; Maxwell v. Jlarper, 51
446, 35 Am. St. Rep. 186, 33 Pac. Wash. 351, 98 Pac. 756.
338; Hunt v. Wicht, 174 Cal. 90. Kirkwood v. Smith, 212
205, 162 Pac. 639; GrlUey v. At- III. 395, 72 N. E. 427; Owen v.
kins, 78 Conn. 380, 4 L. R. A. Williams, 114 Ind. 179, 15 N. E.
(N. S.) 816, 112 Am. St. Rep. 678; Gideon v. Gideon, 99 Kan.
152, 62 Atl. 337; Wheeler v. 332, 161 Pac. 595; Meech v.
Loesch, 51 Ind. App. 562, 99 N. Wilder, 130 Mich. 29, 89 N. W.
E. 502; Rowley v. Bowyer, 75 556; Dickson v. Miller, 124 Minn.
N. J. Eq. 80, 71 Atl. 398; 346, 145 N. W. 112; Shaffer v.
Arnegaard v. Arnegaard, 7 N. D. Smith, 53 Okla. 352, 156 Pac.
475, 41 L. R. A. 258, 75 N. W. 1158.
§ 462] Transfer Inter Vivos. 1785
will ripen into a vested estate only on the death of the
grantor, as if a springing nse had been created, the
fee simple remaining in the meanwhile in the grantor.
Such a result may be attained by regarding a delivery
with reference to the grantor's death as but one case
of conditional delivery, ignoring the fact that the condi-
tion named, that of death, is certain to be satisfied. This
involves a fiction, it is true, but it is a beneficial fiction,
conducive to simnlicity and harmony, as bringing into
a single categoiT all the cases of qualified delivery.
Applying this latter theory, in accordance with the
views previously indicated, while the delivery is to be
regarded as occurring at the time at which it actually
does occur, the title does not pass, that is, the grantee
does not acquire any estate, until the death of the gran-
tor. The delivery is etTective as against subsequent
donees, grantees and attaching and judgment creditors,
except in so far as they stand in the position of innocent
purchasers for value.^^ And so the death of the grantee
after the delivery and before the grantor's death does
not atfect the validity of the delivery and, upon the
grantor's death, an estate becomes vested in the gran-
tee's heir.^2 q^^ tj-^g other hand, no estate vests in the
grantee or grantee's heir until the grantor's death,
until, that is, the condition named is satisfied.
That the grantor, in handing the instrument to the
depositary, retains a right to control its operation, a
91. To this effect appear to mell v. Shirley, 69 Ohio St. 187,
be Wittenbrock v. Cass, 110 Cal. persons who gave credit to the
1, 42 Pac. 300; Grilley v. Atkins, grantor in ignorance of the con-
78 Conn. 380, 4 L. R. A. (N. S.) veyance so delivered were given
816, 112 Am. St. Rep. 152, 62 Atl. priority, and in Ladd v. Ladd, 14
337; Nowakowski v. Sobeziak, 270 Vt. 185, the widow by a marriage
111. 622, 110 N. E. 809; Smiley v. subsequent to such delivery was
Smiley, 114 Ind. 258, 16 N. E. regarded as entitled to dower.
585; Owen v. Williams, 114 Ind. 92. Stone v. Duvall. 77 111.
179, 15 N. E. 678; Brown v. 475. And compare Stonehill v.
Austen (N. Y.) 35 Barb. 341; Ran- Hastings. 202 N. Y. 115, 91 N.
ken V. Donovan, 166 N. Y. 626, E. 1068.
46 App. Div. 225. But in Rath-
178G
Real Property.
[§ 462
right, for instance, to withdraw and cancel it, precludes
the physical transfer to the depositary from operating
as a delivery, in the case of an instrument which is to
take effect on the grantor's death,'*'^ as in the case of
an instrument which is to take effect on the satisfaction
of any other condition.'^* As before remarked, a delivery
which the grantor can, at his option, treat as not a
deliver}^ is incomprehensible, and cases which recognize
a delivery in spite of such retention of control,-*^ cannot
he supported on principle. If, however, no such power
of control is retained, the mere fact that the depositary
allows the grantor to resume possession of the instru-
ment,'''^ or that he would do so if requested,''''^ does not
affect the fact of deliverv.
93. Seeley v. Curts, 180 Ala.
445, Ann. Cas. 1915C, 381, 61 So.
807; Bury v. Young, 98 Cal. 446,
35 Am. St. Rep. 186, 33 Pac. 338;
Williams v. Kidd, 170 Cal. 631,
Ann. Cas. 1916E, 703, 151 Pac.
1; Wilson v. Wilson, 158 111. 567,
49 Am. St. Rep. 176; Kunkel v.
Johnson, 268 111. 422, 109 N. E.
279; Osborne v. Eslinger, 155
Ind. 351, 80 Am. St. Rep. 240;
Brown v. Brown, 66 Me. 316;
Burk V. Sproat, 96 Mich. 404,
55 N. W. 985; Dickson v. Miller,
124 Minn. 346, 145 N. W. 112;
Cook V. Brown, 34 N. H. 460;
Saltzsieder v. Saltzsieder, 219
N. Y. 523, 114 N. E. 856; Hud-
dleston v. Hardy, 164 N. C. 210,
80 S. E. 158; Arnegaard v.
Arnegaard, 7 N. D. 475, 41 L. R.
A. 258, 75 N. W. 797; Williams
V. Schatz, 42 Ohio St. 47; Thrush
V. Thrush, 63 Ore. 143, 125 Pac.
267, 126 Pac. 994; Johnson v.
Johnson, 24 R. I. 57; Showalter
V. Spangler, 93 Wash. 43, 160
Pac. 1042; Williams v. Daubner,
103 Wis. 521, 74 Am. St. Rep.
902.
94. Ante, this section, notes
29-35.
95. Woodward v. Camp, 22
Conn. 457 (but see Grilley v.
Atkins, 78 Conn. 380, 4 L. R. A.
(N. S.) 816, 112 Am. St. Rep.
154, 62 Atl. 337) ; Lippold v.
Lippold, 112 Iowa, 134, 84 Am.
St. Rep. 331; Daggett v. Simonds,
173 Mass. 340, 46 L. R. A. 332;
Ruggles V. Lawson, 13 Johns.
(N. Y.) 285, 7 Am. Dec. 375;
Henry v. Phillips, 105 Tex. 459,
151 S. W. 533.
96. Tweedale v. Barnett, 172
Cal. 271, 156 Pac. 483; Foreman
V. Archer, 130 Iowa, 49; Peterson
V. Bisbee, 191 Mich. 439, 158
N. W. 134; Thrush v. Thrush,
63 Ore. 143, 125 Pac. 267', 126
Pac. 994. But this has been
referred to as evidence that there
was originally no valid delivery.
Tweedale v. Barnett, 172 Cal.
271, 156 Pac. 483; O'Brien v.
O'Brien, 19 N. D. 713, 125 N. W.
307.
97. Loomis v. Loomis, 178
§ 462] Transfer Inter Vivos. 1787
Decisions to the effect that there is no valid de-
livery if it is conditioned on the grantor's death within
a period named,''^ or on his death before the death of
the grantee,"^ appear to be decidedly questionable.
They are based on the assumption, erroneous, it is sub-
mitted, that in such case the grantor retains control of
the operation of the instrument. It would hardly be
contended that in the analogous case of a delivery con-
ditioned on the payment of the purchase money within
a time named, the grantor retains such control, and
that there is consequently no valid delivery. That the
grantor expressly retains the privilege of cancelling the
instrument in case the grantee fails to support her for
the balance of her life involves no such retention of
control as to affect the validity of the delivery, it in-
volving merely a right to terminate the estate created,
in case the named contingency occurs.^
It is sometimes said of such a delivery witli refer-
ence to the grantor's death, that the deed becomes op-
erative upon its 'Vlelivery" by the custodian to the gran-
tee after the grantor's death,- but, it is conceived, any
such reference to a "second delivery," so called, mean-
ing thereby a manual transfer by the custodian of the
instrument to the grantee, introduces an entirely er-
roneous conception. Assuming, as is no doubt ordinarily
the case, that the grantor intends the instrument to be
fully effective upon his death even though the custodian
does not hand the instrument to the grantee, such i)liysi-
Mich. 221, 144 N. W. 552; White Mullis, 167 N. C. 405, 83 S. E.
V. Watts, 118 Iowa, 549, 92 N. 582.-
W. 660; Maxwell v. Harper, 51 2. Owen v. Williams, 114 Iiul
Wash. 351, 98 Pac. 756. 179, 15 N. E. 678; Haeg v.
98. Long V. Ryan, 166 Cal. Haeg, 53 Minn. 33, 55 N. W.
442, 137 Pac. 29. 1114; Dickson v. Miller, 124
99. Kenney v. Parks, 125 Cal. Minn. 346, 145 N. W. 112; Wil-
146, 57 Pac. 772; Dunlap v. Hams v. Latham, 113 Mo. 165, 20
Marnell, 95 Neb. 535, 145 N. W. S. W. 99; Tooley v. Dibble, 2
1017. Hill. (N. Y.) 641 : Rosseaii v.
1. Malley v. Quinn, 132 Minn. Bleau, 131 N. Y. 177, 27 Am. St.
254, 15G N. W. 263; Phifer v. Rep. 578, 30 N. E. 52; Stonehlll
1788 Real Property. [§ 463
cal transfer to the grantee is absolutely immaterial,
and the instrument becomes operative upon his death
by reason of *'the first and only delivery. "^ If the
grantor intends such a manual transfer to be a part of
the condition of the delivery, it must of course be made
in order to render the instrument operative, but the
manual transfer would not constitute the delivery of
the conveyance, in the technical sense. This has already
taken place, and moreover a deed of conveyance cannot
be delivered after the death of the grantor.^
§ 463. Acceptance. In many of the states, perhaps
a majority, an acceptance of the conveyance by the
grantee named therein has been stated to be essential to
its validity.^ And it has accordingly been decided in a
number of cases that the conveyance is not effective as
against the claim of a third person which accrued, by
reason of attachment, recovery of a judgment, or
purchase for value, between the time of delivery of the
instrument and the grantee's subsequent assent thereto.^
V. Hastings, 202 N. Y. 115, 94 v. Houlton, 119 Md. 180, 86 Atl.
N. E. 1068; Crooks v. Crooks, 34 514; Meigs v. Dexter, 172 Mass.
Ohio St. 610; Stephens v. Rine- 217, 52 N. E. 75; Watson v.
hart, 72 Pa. St. 434; Wilson y. Hillman, 57 Mich. 607, 24 N. W.
Wilson, 32 Utah, 169, 89 Pac. 663; Miller v. McCaleb, 208 Mo.
643; Ladd v. Ladd, 14 Vt. 185. 562, 106 S. W. 655; Rennebaum
3. Per Hosmer, C. J., in Stew- v. Rennebaum, 78 N. J. Eq. 507,
art V. Stewart, 5 Conn. 317. '79 Atl. 309, 79 N. J. Eq. 654,
4. Ante, § 461, note 59. 83 Atl. 1118; Arnegaard v.
5. Russell V. May, 77 Ark. 89, Arnegaard, 7 N. D. 475, 41 L.
90 S. W. 617; Hibberd v. Smith, R. A. 258, 75 N. W. 797;
67 Cal. 547, 56 Am. Rep. 726; Couch v. Addy, 35 . Okla. 355,
Knox V. Clark, 15 Colo. App. 356, 129 Pac. 709; Larisey v. Larisey,
62 Pac. 334; Stallings v. Newton, 93 S. C. 450, 77 S. E. 129; Reid
110 Ga. 875, 36 S. E. 227; Hulick v. Gorman, 37 S. D. 314, 158
V. Scovil, 9 111. 159; Abernathie N. W. 780; Kempner v. Rosen-
V. Rich, 256 111. 166, 99 N. E. thai, 81 Tex. 12, 16 S. W. 639;
883; Woodbury v. Fisher, 20 Ind. Welsh v. Sackett, 12 Wis. 243.
387, 83 Am. Dec. 325; Kyle v. 6. Parmelee v. Simpson, 5
Kyle, 175 Iowa, 734, 157 N. W. Wall. (U. S.) 81; Hibberd v.
248; Alexander v. De Kermely, Smith, 67 Cal. 547, 56 Am. Rep.
81 Ky. 345; Gates v. Gates, 152 726; Knox v. Clark, 15 Colo. App.
Ky. 47, 153 S. W. 10; Houlton 356, 62 Pac. 334; Evans v. Cole-
§ 463:]
Transfer Inter Vivos.
1789
A conveyance was effective at common law although
the transferee did not assent thereto or even know there-
of, he always having, however,' the right to ''disclaim,"
that is, to repudiate the conveyance and thereby revest
the title in the grantor.' Such is the rule in England at
the present day.® And in spite of the constant assertion
and reassertion by the courts in this country of the
necessity of acceptance, it is difficult to avoid the con-
clusion that in a number of states the rule in this regard
is the same as in England, that no acceptance of the
conveyance is necessary, though the grantee may, if he
choose, dissent and disclaim.^'* That no acceptance is
necessary appears to be involved in the statement, made
with great frequency^ that, provided the conveyance can
be regarded as beneficial in character, and as not in-
volving any burden on the grantee, his acceptance will
be presumed in the absence of any showing of dissent,''
man, 101 Ga. 152, 28 S. E. 645;
Partridge v. Chapman, 81 111.
137; Woodbury v. Fisher, 20 Ind.
387, 83 Am. Dec. 325 (but see
Emmons v. Harding, 162 Ind.
154, 1 Ann. Cas. 864, 70 N. E.
142); Day v. Griffith, 15 Iowa,
104; Bell v. Farmers' Bank of
Kentucky, 11 Bush (Ky.) 34,
21 Am. Rep. 205; Simpson v.
Yocum, 172 Ky. 449, 189 S. W.
439; Field v. Fisher, 65 Mich.
606, 32 N. E. 838; Kuh v. Gar-
vin, 125 Mo. 547, 28 S. W. 847;
Fischer Leaf Co. v. Whipple, 51
Mo. App. 181; Rogers v. Heads
Iron Foundry, 51 Neb. 52, 37 L.
R. A. 433; Derry Bank v. Web-
ster, 44 N. H. 264; Kempner v.
Rosenthal, 81 Tex. 12, 16 S. W.
639; Welch v. Sackett, 12 Wis.
243.
7. Litt. §§ 684, 685; Butler &
Baker's Case, 3 Co. Rep. 260;
Thompson v. Leach, 2 Vent. 198;
2 R. P.— 38
Sheppard's Touchstone, 284. See
Skipwith's Ex'r v. Cunningham,
8 Leigh (Va.) 272.
8. Siggers v. Evans, 2 El. &
Bl. 367; Standing v. Bowring,
31 Ch. D. 286; Mallott v. Wilson
(1903), 2 Ch. 494. See article
on the nature of disclaimer by
F. E. Farrer, Esq., in 32 Law
Quart. Rev. 83.
8a. See editorial note, 19
Harv. Law Rev. at p. 612; Harrl-
man, Contracts, (2d Ed.) §§ 82,
83.
9. Arrington v. Arrlngton, 122
Ala. 510, 26 So. 152; Graham
v. Suddeth, 97 Ark. 283, 133 S.
W. 1033; De Levillian v. Edwards.
39 Cal. 120; Merrills v. Swift, 18
Conn. 257, 46 Am. Dec. 315:
Moore V. Giles, 49 Conn. 570;
Baker v. Hall, 214 111. 364, 73 N.
E. 351; Bremmerman v. Jennings,
101 Ind. 253; Emmons v. Harding.
162 Ind. 154, 70 N. E. 142; Pod-
1790
Real Property.
[§ 463
and this though he is in entire ignorance of the con-
veyance.^^ Such a statement represents a tendency,
which appears to be open to criticism,^ ^ to express rules
of substantive law in the form of rules of presumption,
a mode of expression which is particularly objectionable
w^hen, as in this case, the thing presumed to exist is a
thing which concededly does not exist. If there is no
acceptance, no rule of law, whether or not designated a
presumption, can create an acceptance. And the only
conclusion, it is submitted, to be drawn from the deci-
sions upholding a beneficial conveyance even in the ab-
hajsky's Estate, 137 Iowa, 745,
115 N. W. 596; Gideon v. Gideon,
99 Kan. 322, 161 Pac. 595; Jeffer-
son County Building Ass'n v. Heil,
81 Ky. 513; Houlton v. Houlton,
119 Md. 180, 86 Atl. 514; IngersoU
V. Odendahl, 136 Minn. 428, 162
N. W. 525; Metcalfe v. Brandon,
60 Miss. 685; Ensworth v. King.
50 Mo. 477; Jones v. Swayze, 42
N. J. L. 279; Rennebaum v.
Rennebaum, 78 N. J. Eq. 427, 79
Atl. 309. 79 N. J. Eq. 654, 83 Atl.
1118; Spencer v. Carr, 45 N. Y.
406. 6 Am. Rep. 112; Ten Eyck.
V. Whitbeck, 156 N. Y. 341, 50
N. E. 963; Lynch v. Johnson,
171 N. C. 611, 89 S. E. 61; Arne-
gaard v. Arnegaard, 7 N. Dak.
475, 41 L. R. A. 258, 75 N. W.
797; Shaffer v. Smith, 53 Okla.
352, 156 Pac. 1188 (voluntary
deed); In re Braley's Estate, 85
Vt. 351, 82 Atl. 5; Guggenheimer
V. Lockridge, 39 W. Va. 457, 19
S. E. 874. In Ward v. Ritten-
house Coal Co., 152 Ky. 228, 153
S. W. 217, it is said that ac-
ceptance is not to be implied or
presumed if the grantee is com-
petent and is present in person.
10. Elsberry v. Boykin, 65 Ala.
336; Gulf Red Cedar Co. v.
Crenshaw, 169 Ala. 606, 53 So.
812; Russell v. May, 77 Ark. 89,
90 S. W. 617; Tibballs v. Jacobs,
31 Conn. 428; Graham v. Suddeth,
97 Ark. 283, 133 S. W. 1033; Burch
V. Nicholson, 157 Iowa, 502, 137
N. W. 1066; Wuester v. Folin, 60
Kan. 334, 56 Pac. 490; Clark v.
Creswell, 112 Md. 339, 21 Ann.
Cas. 338, 76 Atl. 579; Vreeland v.
Vreeland, 48 N. J. Eq. 56, 21 Atl.
627; Everett v. Everett, 48 N.
Y. 218; Munoz v. WUson, 111 N.
Y. 295, 18 N. E. 855; Robbins
V. Roscoe, 120 N. C. 79, 38 L. R.
A. 238, 58 Am. St. Rep. 774; Mit-
chell's Lessee v. Ryan, 3 Ohio
St. 377.
So acceptance has been said to
be presumed in the case of a de-
livery on condition or to take
effect on the grantor's death.
Kyle V. Kyle, 175 Iowa, 734, 157
N. W. 248. And the grantee's
ignorance of the conveyance is
immaterial. Roepke v. Nutz-
mann, 95 Neb. 589, 146 N. W. 939;
Saltzsieder v. Saltzsieder, 219 N.
Y. 523, 114 N. E. 856.
11. See Thayer, Preliminary
Treatise on Evidence, pp. 326,
§ 463'J Transfer Inter Vivos. 1791
seiice of acceptance, is that acceptance is not necessary
in the case of such a conveyance. The adoption of the
double fiction, that acceptance is necessary, and that it
exists although confessedly it does not exist, has, it is
conceived, no reason whatsoever of policy or conveni-
ence in its favor.
The assertion of a presumption of acceptance, as it
appears in the cases referred to, is objectionable, it is
submitted, not only as involving the introduction of
confusing and unnecessary fictions, but also because it
in effect ditferentiates, as regards the necessity of ac-
ceptance, between conveyances which are and are not
beneficial. Since the grantee, so long as he has not ac-
tually accepted the transfer, can disclaim, and so oycbide
any possibility of prejudice to him by reason of the con-
veyance, it is not readily perceived why the courts
should undertake to discriminate in this regard. AVheth-
er the conveyance shall be eventually availed of by the
grantee is a matter for him to decide, and it does not
appear to be the province of the court to indulge in sup-
positions as to his probable action in this respect. If
acceptance is otherwise not necessary, why should the
non beneficial character of the conveyance render it
necessary? If it is otherwise necessary, why should the
beneficial character of the conveyance render it unneces-
sary? Such a distinction, based on the beneficial or
onerous character of the conveyance, has been re-
pudiated in England,^- but has been applied in several
cases in this countrv,^^ with the effect of invalidatinfr a
335, 351; 2 Chamberlayne, Evi- courts should be asked in each
dence, §§ 1087, 1145, 114(;, 1160 particular instance if the deed
et seq. may not be considered onerous."
12. "Almost every conveyance, Campbell, C. J., in Siggers v.
in truth, entails some charge or Evans, 5 El. & Bl. 367.
obligation vv^hich may be onerous 13. Occasionally a conveyance
in the way of covenant or lia- has been regarded as not bene-
billty; and we think It much ficial because It was made in the
safer that one general rule performance of a contract of sale,
should prevail, than that the which Imposed an obligation for
1792
Real Peopeety.
[§ 463
conveyance not actually accepted, because not regarded
by the court as beneficial in character, although, in these
same jurisdictions, a ''beneficial" conveyance would
have been upheld without any acceptance. If an actual
assent or acceptance, it may be remarked, is to be re-
garded as necessary whenever any burden or obligation
is imposed on the grantee, it is somewhat difficult to un-
derstand the decisions, hereafter referred to^^ which up-
hold the validity of a conveyance in trust, although the
trustee has not assented thereto.
The view that assent or acceptance on the part of
the grantee is necessary appears to have had its origin,
for the most part, in the notion that a conveyance is a
contract, and that consequently there must be a meeting
of minds. ^^ But a conveyance is not a contract,^^ and
there is no intrinsic difficulty in regarding a conveyance
as effective to vest property in the grantee even before
the latter has consented to receive it. In the case of a
the (purchase money upon the
purchaser. Derry Bank v. Web-
ster, 44 N. H. 268; Boardman v.
Dean, 34 Pa. 252; Wood v. Mont-
pelier, (Vt.) 82 Atl. 671. And a
mortgage or conveyance to secure
several creditors has been regard-
ed as not beneficial for the rea-
son that its acceptance by any
one of the creditors might result
la precluding his recovery of the
whole of his claim. Johnson v.
Farley, 45 N. H. 505. A convey-
ance made to one merely as a
conduit of title has been regarded
as not beneficial for this purpose.
Little V. Eaton, 267 111. 263, 108
N. E. 727. Compare Ferrell v.
Childress, 172 Ky. 160, 189 S. W.
1149. where a conveyance so
made was regarded as properly
accepted by the person beneficial-
ly interested in its execution.
14. Post, this section, notes
19, 20.
15. See Welch v. Sackett, 12
Wis. 243; Rogers v. Heads Iron
Foundry, 51 Neb. 52, 37 L. R. A.
433.
16. Anson, Contracts (13th
Ed.) 3, 4; Pollock, Contracts, Ap-
pendix A; Hammon, Contracts, §§
6, 7, note 11; Clark Contracts,
IL
Nor does a contract necessarily
Involve a meeting of the minds
of the parties. "The contractual
obligations which the common
law recognized were enforced,
and are still enforced, not be-
cause those obligations are the
result of agreement, but because
certain forms of procedure af-
forded remedies for certain
wrongs." Harriman, Contracts.
2d Ed.) § 61L
§ 463'] Transfer Inter Vivos. 1793
devise, as well as in that of a transfer by operation of
law, the ownership passes without reference to whether
the transferee has consented to take the property, and
the same might well occur in the case of a voluntary
transfer inter vivos, provided only the transferee has the
privilege of subsequently refusing the transfer.^^ In
support of this view reference may be made to the
case of conveyances to infants, and persons non compos
mentis, and to that of conveyances in trust, discussed
in the two following paragraphs.
In the case of a conveyance to an infant, or to a
person non compos mentis the courts, even those which
assert most positively the necessity, in the ordinary
case, of an actual acceptance, undertake to avoid the
difficulty of requiring acceptance on the part of one in-
capable of giving it, by asserting that in such case the
assent of the grantee will be conclusively presumed, pro-
vided at least the conveyance is beneficial in character.^^
But, as before remarked, the conceded lack of acceptance
cannot well be supplied by a presumption that the
17. If a father should die les- Thurman, C. J., in Mitchell's
tate, devising an estate to his Lessee v. Ryan, 3 Ohio St. 377.
daughter, and the latter should 18. Staggers v. White, 121 Ark.
afterwards die without a knowl- 328, 181 S. W. 139; Turner v.
edge of the will, it would hardly Turner 173 Cal. 782, 161 Pac. 980;
be contended that the devise be- Miller v. Meers, 155 111. 284, 40 N.
came void for want of acceptance, E. 577; Vaughan v. Godman, 94
and that the heirs of the devisee Ind. 191; Tansel v. Smith, 49 Ind.
must lose the estate. Neither App. 263, 93 N. E. 548, 94 N. E.
win it be denied that equitable 890; Fitzgerald v. Tvedt, 142
estates are every day thrust upon Iowa, 40, 120 N. "W. 465; Combs
people by deeds, or assignments, v. Ison, 168 Ky. Ky. 728, 182 S.
made in trust for their benefit. W. 953; Campbell v. Kuhn, 45
nor win It be said that such Mich. 513, 40 Am. Rep. 479; Fen-
beneficlarles take nothing until ton v. Fenton, 261 Mo. 202, 168
they assent. Add to these the S. W. 1152; Chambers v. Cham-
estates that are thrust upon bers, 227 Mo. 262, 137 Am. St.
people by the statute of descent. Rep. 567, 127 S. W. 86; Davis v.
and we begin to ' estimate the Garrett, 91 Tenn. 147, 18 S. W.
value of the argument, that a 113; Bjmerland v. Eley, 15 Wash,
man shall not be made a prop- 101, 45 Pac. 730.
erty holder against his will.
1794
Real Peopeety.
[§ 463
grantee would, if he had an opportunity, accept the
conveyance, and moreover, even supposing this could
be done, the presumed acceptance, in the case of a con-
veyance to an infant, or to a person non compos mentis,
would be an acceptance by a person lacking in legal
capacity, and therefore a nullity.
In the case of a conveyance in trust, the legal 'itle
is usually regarded as vesting in the trustee without
any acceptance by him, or even any knowledge on his
part of the conveyance,^^ this result being not infre-
quently attained on the theory of a presumption of
assent.^*^ Even though he subsequently dissents, and
refuses to accept, the conveyance does not become nuga-
tory, but equity will appoint another trustee. ^^ The
equitable interest under a deed of trust likewise vests
in the beneficiary named without any acceptance thereof
19. Adams v. Adams, 21 Wall.
(U. S.) 185, 22 L. Ed. 504; Devol
V. Dye, 123 Ind. 321, 1 L. R. A.
439; Mlnot v. Tilton, 64 N. H.
371, 10 Atl. 682; Gulick v. Gullck,
39 N. J. Eq. 401; Myrover v.
French, 73 N. C. 609; Read v.
Robinson, 6 Watts & S. (Pa.)
329; First Bank v. Holmes. 85
Pa. 231; Talbot v. Talbot, 32 R.
I. 72, Ann. Cas. 1912C, 1221, 78
Atl. 535; Cloud v. Calhoun, 10
Rich. Eq. (S. Car.) 358; Fur-
man V. Fisher, 4 Cold. (Tenn.)
626, 94 Am. Dec. 210; Fletcher
V. Fletcher, 4 Hare 67; Ames,
Cases on Trusts (2d Ed.) 229.
But statements are occasionally
found to the effect that no title
vests in the trustee until he ex-
pressly or by implication accepts
the trust. 1 Perry, Trusts, §
259, Armstrong v. Morrill, 14
Wall. (U. S.) 138; Oxley Stave
Co. V. Butler County, 121 Mo.
614, 26 S. W. 367; McFall v.
Kirkpatrick, 236 111. 281, 86 N.
E. 139.
20. Kennedy v. Winn, 80 Ala.
165; Devol v. Dye, 123 Ind. 321,
7 L. R. A. 439; Howry v. Gard-
ner, 41 Ohio St. 642; McKinney
V. Rhoads, 5 Watts (Pa.) 343;
Eyrick v. Hetrick, 13 Pa. 488;
Goss v. Singleton, 2 Head (Tenn.)
67; Bowden v. Parrish, 86 Va.
67, 19 Am. St. Rep. 873.
21. Irvine v. Dunham, 111 U.
S. 327, 28 L. Ed. 444; Smith v.
Davis, 90 Cal. 25, 25 Am. St.
Rep. 92, 27 Pac. 26; Dailey v.
New Haven, 60 Conn. 314, 14 L.
R. A. 69, 22 Atl. 945; Braswell
v. Downs, 11 Fla. 62; French v.
Northern Trust Co., 197 111. 30,
64 N. E. 105; Brandon v. Carter,
119 Mo. 572, 41 Am. St. Rep.
673; King v. Donelly, 5 Paige (N
Y.) 46; Roseman v. Roseman, 127
N. C. 494, 37 S. E. 518; Talbot
V. Talbot, 32 R. I. 72, Ann. Cas.
1912C, 1221, 78 Atl. 535; Cloud
§ 463:]
Transfer Inter Vivos.
1795
by him, or even any knowledge by him of the trust.^^
It is sometimes said, in this connection, that one is pre-
sumed to accept the benefit of a trust.^'
The courts, in referring to the necessity of accep-
tance, do not always clearly indicate whether it is to be
regarded as an element of delivery, or as something
additional to, and separate from, delivery. Perhaps they
more frequently suggest the former view,-^ and this they
apparently do in effect when they state that the grant-
or's record of the instrument does not create any pre-
sumption of delivery if without the knowledge or assent
V. Calhoun, 10 Rich. Eq. (S. C.)
358; Ames, Cases on Trusts, 230.
22. Brooks v. Marbury, 11
Wheat. (U. S.) 78; Security Trust
& Safe Deposit Co. v. Farrady, 9
Del. Ch. 306, 82 Atl. 24; Koch
V. Streuter, 232 111. 594, 83 N.
E. 1072; Milholland v. Whalen,
89 Md. 212, 44 L. R. A. 205, 43
Atl. 43; Boston v. Turner, 201
Mass. 190, 87 N. E. 634; Mar-
quette V. Wilkinson, 119 Mich.
414, 43 L. R. A. 840, 78 N. W.
474; Gulick v. Gulick, 39 N. J.
Bq. 401; Martin v. Funk, 75 N.
Y. 134. 31 Am. Rep. 446; Moloney
V. Tilton, 22 N. Y. Misc. 682, 51
N. Y. Supp. 682; Breedlove v.
Stump, 3 Yerg. (Tenn.) 257;
Connecticut River Sav. Bank v.
Albee's Estate, 64 Vt. 571, 33 Am.
St. Rep. 944, 25 Atl. 487; Skip-
with's Ex'r v. Cunningham, 8
Leigh (Va.) 272; Fleenor v.
Hensley, 121 Va. 367, 93 S. E.
582; See McEwen v. Bamberger,
3 Lea, (Tenn.) 576.
23. Brunson v. Henry, 140 Ind.
455, 39 N. E. 256; Emporia First
Nat. Bank v. Ridenour, 46 Kan.
718, 26 Am. St. Rep. 167; H. B.
Cartwright & Bro. v. United
States Bank & Trust Co., 23 N.
M. 82, 167 Pac. 436; Stone v.
King, 7 R. I. 358, 84 Am. Dec.
557; Cloud v. Calhoun, 10 Rich.
Eq. (S. C.) 358; Furman v.
Fisher, 4 Coldw. (Tenn.) 626, 94
Am. Dec. 557.
24. Stallings v. Newton, 110
Ga. 875, 36 S. E. 227; Byers v.
Spencer, 101 111. 429, 40 Am. Rep.
212; Bremmerman v. Jennings,
101 Ind. 253; O'Connor v.
O'Connor, 100 Iowa, 476, 69 N.
W. 076; Sullivan v. Sullivan, 179
Ky. 686, 201 S. W. 24; Meigs v.
Dexter, 172 Mass. 217, 52 N. E.
75; Miller v. McCaleb, 208 Mo.
562, 106 S. W. 655; Jaskson v.
Phipps, 12 Johns. (N. Y.) 418;
Spencer v. Carr, 45 N. Y. 406, 6
Am. Rep. 112.
Occasionally it has been said
that delivery and acceptance must
be simultaneous. Church v. Gil-
man, 15 Wend. (N. Y.) 656, 30
Am. Dec. 82; Hulick v. Scovll, 9
111. 159. Contra, Sullivan v. Sul-
livan, 179 Ky. G86, 201 S. W. 24
Regan v. Howe, 121 Mass. 424
Welch v. Sackett, 12 Wis. 243
And see Stone v. New England
Box Co.. 216 Mass. 8, 102 N. K.
949.
1796 Eeal Peopekty. [§ 463
of the grantee.-'^ There would seem, however, to be
some difficulties in the way of regarding the grantor's
indication of intentioii as constituting delivery only
when accompanied or immediately followed hy ac-
ceptance. Adopting such a view, the grantor would,
after having indicated his intention that the conveyance
should operate, have the right until acceptance to change
his intention, and to dispose otherwise of the property,
and yet the cases regard his indication of intention, in
the case both of conditionaP^ and unconditional deliv-
ery,^'^ as concluding him in this regard. It is more
satisfactory, it is submitted, conceding that acceptance
is necessary, to regard it as something outside of de-
livery, as, in etfect, an indication of the grantee's inten-
tion, as delivery is an indication of the grantor's in-
tention.-^ The contrary vew, above referred to, is ap-
parently to some extent the outcome of the mistaken
tendency to regard delivery as involving a manual
transfer of the instrument, such a transfer being ordi-
naril}'^ impossible without the assent of the person to
whom the transfer is made.
The acceptance may, it has been said, be given by
another person acting on behalf of the grantee, such ac-
ceptance being sufficient if afterwards ratified by the
grantee.^^ Such a statement is somewhat ambiguous.
If it means that, provided an unauthorized person ac-
25. Ante, § 461, note 84. 29. Meigs v. Dexter, 172 Mass.
26. Ante, § 462, notes 31-36. 217, 52 N. E. 75; Couch v. Addy,
27. Ante, § 461, note 60. 35 Okla. 355, 129 Pac. 709.
28. Such a view is involved in In Blackwell v. Blackwell, 196
the occasional statements that the Mass. 186, 12 A. & E. Ann. Cas.
acceptance may be given by the 1070, it was decided that there
grantee even after the grantor's may be a valid acceptance by the
death. Gulf Red Cedar Co. v. grantor in behalf of the grantee,
Crenshaw, 169 Ala. 606, 53 So. whose general agent he was. The
812; Cates v. Cates, 152 Ky. 47, cases cited in support of the deci-
153 S. W. 10; Burkey v. Burkey, — sion merely involved the princi-
Mo. — 175 S. W. 623; Taylor v. pie that no manual transfer of
Sanford, 108 Tex.- 340, 193 S. W. the instrument is necessary.
661.
§ 464] Transfer Inter Vrv'os. 1797
cepts oil behalf of tlie grantee, title immediately vests
in the latter, subject to an option on liis part as to
whether he will ratify the acceptance, this appears to
be the equivalent of a statement that, although there
is no valid acceptance, title immediately passes to the
grantee subject to an option in him subsequently to
repudiate the transfer, this being the common law and
present English rule. It may, however, mean that an
unauthorized acceptance being invalid, title does not
pass until the grantee, by indicating his adoption of
the acceptance, in effect himself accepts the conveyance,
this in effect recognizing the asserted American rule,
that the grantee's acceptance is necessary. Whichever
meaning is given to the statement, it does not appear
that the unauthorized acceptance has any legal signifi-
cance, the grantee's ratification of such accoiDtance, so
called, being merely his acceptance of the transfer, of
which there had previously been no valid acceptance.
§ 464. Execution by agent. The owner of land
may transfer it, not only by himself executing the in-
strument of transfer, but also by empowering another
so to do in his absence. The execution of a convey-
ance by the agent of the grantor, in the grantor's ab-
sence, by virtue of the authority given the agent for
this purpose, is to be distinguished from the case,
before referred to,"^^ in which the signing of an instru-
ment by the hand of another is adopted by the grantor
as his own act, this being for all purposes his own sig-
nature.
A written instrument by which one is authorized to
act as the agent of another, in connection with the
transfer of land, as in otlier connections, is frequently,
indeed ordinarily, referred to as a power of attorney.
The common law rule that authority to execute an
instrument under seal must itself be under seal appears
to be still recognized in a considerable number of
30. Ante, § 457. notes 76, 77.
1798 Real Property. [§ 464
states,^^^ and, in so far as a seal may, in a particular
jurisdiction, be necessary to the legal validity of a con-
veyance, an authority to one as agent to execute a con-
veyance must be under seal.^^ But without reference to
such a common law requirement of a seal, which ob-
viously involves a requirement of a written instrument,
the statutes of most of the states expressly require such
an authority to be in writing, and some require it to be
under seal.^^
Since delivery is part of the execution of the in-
strument, it would seem that, in so far as a written or
sealed authority may be necessary to enable an agent to
sign or seal a conveyance of land, such an authority is
also necessary to enable him to deliver the instrument,
•The question has been previously discussed.^^
It is a technical rule of the common law that only
those are bound by a sealed instrument who purport to
be parties thereto and in whose names it is signed and
sealed,^^ and, applying this rule it has occasionally been
decided that a conveyance executed by an agent was
insufficient because it purported to be the deed, not of
the intended grantor, but of the agent himself, even
though the body of the instrument indicated that the
person who signed and sealed it was acting merely as
agent,^^ or even though a statement of his agency was
appended to his signature.^'' In other cases, however,
30a. Huffcut, Agency, § 26; 35. Taylor v. Agricultural &
Mechem, Agency, § 212. Mechanical Ass'n, 68 Ala. 229;
31. Tilton V. Cofield, 2 Colo. Stinchfield v. Little, 1 Me. 231, 10
392; Watson v. Sherman, 84 111. Am. Dec. 65; Elwell v. Shaw, 16
263; Montgomery v. Dorion, 6 N. Mass. 42, 8 Am. Dec. 126; Stone
H. 250; Heath v. Nutter, 50 Me. v. Wood, 7 Cow. (N. Y.) 453, 17
378; Shuetze v. Bailey, 40 Mo. 69; Am. Dec. 529; Bellas v. Hays, 5
Blood V. Goodrich, 9 Wend. (N. Serg. & R. 427, 9 Am. Dec. 385.
Y.) 68, 24 Am. Dec. 121; Cadell 36. Echols v. Cheney, 28 Cal.
V. Allen, 99 N. C. 542. 157; Morrison v. Bowman, 29 Cal.
32. 1 Stimson's Am. St. Law, § 337; Harper v. Hampton, 1 Harr.
1670. J. 622; Brinley v. Mann, 2 Cush.
33. Ante, § 461, notes 53-58. 337, 48 Am. Dec. 689; Town-
34. HufEcut, Agency (2d Ed.) send v. Corning, 23 Wend. 442;
§ 188; Mechem Agency, § 1093. Farmers v. Respass, 5 T. B. Mon.
§ 464]
Transfer Inter Vivos.
1799
such strictness of view is not adopted, it being regarded
as sufficient that it appears, either from the signature
or from the body of the instrument, that it is intended
to be the deed, not of the agent, but of the principal,-"*^
and in some states there is a statutory provision to this
general effect.^ ^
The question whether an intention appears from
the face of the instrument that it shall take effect as
the deed of the principal is, in its nature, a question of
the construction of the language used, as to which no
absolute rule can be laid down.^^ Such an intention
does not ordinarily appear to be inferred from the fact
that the person who executes the instrument is de-
scribed therein as the agent of the principal, or that
he professes to be acting under authority from the
latter,^^^ though in some cases this appears to be re-
garded as sufficient for the purpose.^^ That the convey-
(Ky.) 562; Crawford v. Crawford,
77 S. C. 205.
37. Carter v, Chaudron, 21 Ala.
72; Magill v. Hinsdale, 6 Conn.
464a; Doe d. Tenant v. Roe, 27
Ga. 418; Avery v. Dougherty, 102
Ind. 443, 2 N. E. 123, 52 Am. Rep.
680; Nobleboro v. Clark, 68 Me.
87; Herbert v. Pue, 72 Md. 307;
Hutchins v. Byrnes, 9 Gray, 367;
Murphy v. Welch, 128 Mass. 489;
Bigelow V. Livingston, 28 Minn.
57; McClure v. Herring, 70 Mo.
18; Hubbard v. Swafford etc. Co.,
209 Mo. 495, 123 Am. St. Rep. 488,
108 S. W. 15; Hale v. Woods, 10
N. H. 471; Donovan v. Welch, 11
N. D. 113, 90 N. W. 262; Heffer-
nan v. Addams, 7 Watts (Pa.)
116; Rogers v. Bracken's Adm'r,
15 Tex. 564; Shanks v. Lancaster,
5 Gratt. (Va.) 110, 50 Am. Dec.
108.
38. 1 Stimson's Am. St. Law, §
1675; 1 Mechem, Agency, § 1096,
note 22.
39. See Haven v. Adams, 4
Allen (Mass.) 80; Nobleboro v.
Clark, 68 Maine 87.
40. Jones V. Morris, 61 Ala.
518; Sheridan v. Pease, 93 111.
App. 219; Fowler v. Shearer, 7
Mass. 14; First Baptist Church of
Sharon v. Harper, 191 Mass. 196,
77 N. E. 778; Kiersted v. Orange
& A. R. Co., 69 N. Y. 343, 25 Am.
Rep. 199; Cadell v. Allen, 99 N.
C. 542, 6 S. E. 399; Norris v.
Dains, 52 Ohio St. 215, 39 N. E.
660, 49 Am. St. Rep. 716; Quigley
v. De Haas, 82 Pa. St. 267; North
V. Henneberry, 44 Wis. 306; See
Hill V. Conrad, 91 Tex. 341, 43 S.
W. 789.
41. Donovan v. Welch, 11 N.
Dak. 113, 90 N. W. 262; Avery v.
Dougherty, 102 Ind. 443, 2 N. E.
423, 52 Am. Rep. 680; Maglll v.
Hinsdale, 6 Conn. 464a, 16 Am.
Dec. 70; Hubbard v. Swafford etc.
Co.. 209 Mo. 495, 123 Am. St. Rep.
488.
1800 Keal Property. [§ 46-1
aiice is made by the agent as if in his own right, without
any reference to the fact of agency, and without any
mention of his principal by name, would obviously pre-
clude the conveyance from operating to divest the prin-
cipal's rights.^ ^ That the instrument is signed in the
name of A the principal "by" B the agent, is, it seems,
sufficient to make the instrument effective as the deed
of A, although it reads as the deed of B,^^ while a sig-
nature B "for" A would be sufficient to make it A's
deed if the instrument itself reads as the deed of A,
and not otherwise.^^
The fact that the name of the principal is signed
by the agent without any addition to the signature
showing that the signing was by an agent has been
held not to affect the validity of the signature.^ ^ It has
been suggested that it must appear somewhere upon
the face of the instrument that it was executed, not by
the grantor, but by an agent of the grantor,"*^ but
it may be questioned whether this is essential, how-
ever desirable. ^'^
A conveyance which fails at law, because its execu-
tion is by the agent in his own name, instead of in that
of his principal, will be sustained in equity as an agree-
ment to convey, and, as such, will be effective, not only
42. Bassett v. Hawk, 114 Pa. 34 Am. Dec. 176; Cadell v. Allen,
St. 502, 8 Atl. 18. 99 N. C. 542, 6 S. E. 399; Donovan
43. See Northwestern Distill- v. Welch, 12 N. D. 113; Norris v.
ing Co. V. Brant, 69 IH. 658, 18 Dains,— Ohio— 39 N. E. 660, 49
Am. Rep. 631; Shanks v. Lan- Am. St. Rep 716; McDaniels v.
caster, 5 Gratt. (Va.) 110, 50 Am. Flower Brook Mfg. Co., 22 Vt.
Dec. 108; McClure v. Herring, 70 274.
Mo. 18, 35 Am. Rep. 404. 45. Forsyth v. Day, 41 Me. 382;
44. Smith v. Morse, 9 Wall. (U. Berkey v. Judd, 22 Minn. 287;
S.) 76, 19 L. Ed. 597; Carter v. Devinney v. Reynolds, 1 Watts
Chaudron, 21 Ala. 72; Hancock v. & S. (Pa.) 328.
Younker, 83 111. 208; Hunter's 46. Wood v. Goodridge, 6 Cush.
Adm'rs v. Miller's Adm'rs, 6 B. (Mass.) 117, 52 Am. Dec. 771.
Mon. (Ky.) 612; Nobleboro v. 47. See Forsyth v. Day, 41
Clark, 68 Me. 87; Mussey v. Scott, Me. 382; Hunter v. Giddings, 96
7 Cush. (Mass.) 215, 54 Am. Dec. Mass. 41, 93 Am. Dec. 54.
719; Hale v. Woods, 10 N. H. 470,
§ 46-4] Transfer Inter Vivos. 1801
between the parties, but as against subsequent pur-
chasers with notice.^^
A married woman has power to transfer her rights
in land only in the mode named by statute, and con-
sequently, in the absence of express statutory authority,
or a declaration that she may transfer her separate es-
tate as if she were sole, she cannot execute the convey-
ance by an agent or attorney, and, if so executed, it will,
as against her, be void both at law and in equity."*^
The validity of the execution of a conveyance in
behalf of a corporation by an officer thereof is to be
determined by the same considerations as determine
the validity of a conveyance executed by any other agent
of the intended grantor. The instrument should prop-
erly name the corporation rather than the officer as the
gTantor, and should be signed with the corporate name
and sealed with the corporate seal.^*^ If, however, the
fact that the conveyance is intended to be the deed of the
corporation clearly appears from the language of the
instrument, the fact that it is signed in the name of the
officer does not aifect its validity as a conveyance by
the corporation.^^ And in such case the seal affixed to
the signature, though a mere scroll, will be presumed to
48. Taylor v. Agricultural & Dentzel v. Waldie, 30 Cal. 138;
Mechanical Ass'n, 68 Ala. 229; Wilkinson v. Getty, 13 Iowa, 157:
Love V. Sierra Nevada Lake Earle's Adm'rs. v. Earle, 20 N.
Water & Min. Co., 32 Cal. 639, J. L. 347.
91 Am. Dec. 602; Robbins v. 50. See Cook, Corporations, §
Butler, 24 111. 387; Wilkinson 722.
V. Getty, 13 Iowa, 157, 81 Am. 51. Magill v. Hinsdale, 6
Dec. 428; McCaleb v. Pradat, 25 Conn. 464a, 16 Am. Dec. 70;
Miss. 257; Kearney v. Vaughan, Purinton v. Security etc. Co., 72
50 Mo. 284; Ramage v. Ramage, Me. 22; Haven v. Adams, 4 Allen
27 S. C. 39, 2 S. E. 834. See (Mass.) 80, distinguishing Brinley
Stark V. Starr, 94 U. S. 477, 24 v. Mann, 2 Cush. (Mass.) 337;
L. Ed. 276. Sherman v. Fitch, 98 Mass. 59:
49. Randall v. Kreiger, 23 Tenney v. East Warren Lumber
Wall. (U. S.) 137; Mexia v. Co., 4.T N. H. 343; McDanlels v.
Oliver, 148 U. S. 664; Waddell Flower Brook Mfg. Co., 22 Vt.
V. Weaver's Adm'rs, 42 Ala. 293; 274.
Holland v. Moon, 39 Ark. 120;
1802 Keal Pkoperty. [§ 464
be the seal of the corporation, for this particular occa-
sion at least.^^ Aiid even though the instrument pur-
ports to be merely the deed of the officer, the fact that it
is signed and sealed in the name of the corporation will,
it seems, render it effective as the deed of the corpora-
tion.^^ If it does not appear from the language of the
instrument or from the signature that it is the deed of
the corporation, it would not usually be regarded as
such, even though the officer is referred to by his
official name.^^
Acknowledgment by agent. An acknowledg-
ment may, in the absence of an express statutory pro-
vision to the contrary, be made by the agent or attorney
in fact of the grantor. The cases do not indicate what
formality of authorization is necessary, but there would
seem to be little question that the same formality is
necessary to enable an agent to acknowledge as to
sign or seal the instrument, that, for instance, a writ-
ten power of attorney is necessary for the one purpose
if it is necessary for either of the others. An authority
in terms to '^execute" the instrument is no doubt suffi-
cient to authorize its acknowledgment,^^ though, strictly
speaking, an acknowledgment can not be regarded as
a part of the execution, except in jurisdictions where it
is necessary in order to transfer the title.
The certificate of acknowledgment should show
that the agent of the grantor made the acknowledgment
in behalf of his principal, and not in his own behalf,^^
but the courts ordinarily appear disposed to disregard
52. See cases cited Cook, Cor- Md. 376; Bigelow v. Livingston,
porations, § 721, 1 Clark & 28 Minn. 57, 9 N. W. 31; Rich-
MarshaU, Corporations, § 192c. mond v. Voorhees, 10 Wash. 316,
53. See Northwestern Distill- 38 Pac. 1014.
ing Co. V. Brant, 69 111. 658, 18 56. Pfeiffer v. Cressey, 85 III.
Am. Rep. 631; Shaffer v. Hahn, App. 11; Campbell v. Hough, 73
11] N. Car. 1, 15 S. E. 1033. N. J. Eq. 601, 68 Atl. 759; Peters
54. Ante, this section, note 42. v. Condron, 2 Serg. & R. (Pa.)
55. Robinson v. Mauldin, 11 80.
Ala. 977; Basshor v. Stewart, 54
§ 464]
Transfer Inter Vr-os.
1803
any such requirement, or to construe the language used
with the utmost liberality in this regard/^"
The mode of acknowledgment on behalf of a cor-
poration is frequently prescribed by statute. In the
absence of any statutory designation of the person
who is to make the acknowledgment on behalf of
the corporation, it may ordinarily be made by any
officer who has authority to affix the corporate seal.^**
The certificate should show that the officer taking the
acknowledgment was satisfied that the person making
the acknowledgment was actually the corporate officer
which he purported to be,^» and that he acknowledged
the instrument as the act and deed of the corporation.**®
But a recital that he acknowledged it as his own act
and deed has usually been regarded as sufficient, it be-
ing inferrable from the context and the instrument it-
self that the acknowledgment was in liehalf of the
corporation."^
57. Robinson v. Mauldin, 11
Ala. 977; Talbert v. Stewart, 39
Cal. 602; Sowden v. Craig, 26
Iowa, 156, 96 Am. Dec. 125;
Munger v. Baldridge, 41 Kan.
236, 13 Am. St. Rep. 273; Bige-
low V. Livingston, 28 Minn. 57,
9 N. W. 31; McAdow v. Black,
6 Mont. 601; Moses v. Dibrell,
2 Tex. Civ. App. 457, 21 S. W.
414; Ferguson v. Ricketts, — (Tex.
Civ. App.)— 57 S. W. 19; Rich-
mond V. Voorhees, 10 Wash. 316;
58. See Gray v. Waldron, 101
Mich. 612, 60 N. W. 288; Morris
V. Keil, 20 Minn. 531; Bowers
V. Hechtman, 45 Minn. 238, 47
N. W. 792; Hoopes v. Auburn
Water Works Co., 37 Hun. (N.
Y.) 568; Sheehan v. Davis, 17
Ohio St. 571. Compare Johnson
V. Bush, 3 Barb. Ch. 207.
59. Kelly v. Calhoun, 95 U. S.
710, 24 L. Ed. 544; Klemme v.
McLay, 68 Iowa, 158, 26 N. W.
533; Bennett v. Knowles, 66 Minn.
4, 68 N. W. Ill; Hopper v. Love-
joy, 47 N. J. Eq. 573, 12 L. R. A.
588, 21 Atl. 298; Withrell v.
Murphy, 154 N. C. 82, 69 S. E.
748; Holt v. Metropolitan Trust
Co., 11 S. D. 456, 78 N. W. 947.
60. See Chicago First Nat.
Bank v. Baker, 62 111. App. 154;
Gessner v. Minneapolis etc. R.
Co., 15 N. D. 560.
61. Copper Belle Min. Co. v.
Costello, 11 Ariz. 334, 95 Pao.
94; Chicago etc. R. Co, v. Lewis,
53 Iowa, 101, 4 N. W. 842; Frost-
burg Mut. Bldg. Ass'n v. Brace,
51 Md. 508; Eppwright v. Nicker-
son, 78 Mo. 482; Descombes v.
Wood, 91 Mo. 196, 60 Am. Rep.
239; Tenney v. East Warren
Lumber Co., 43 N. H. 343; Muller
V. Boone, 63 Tex. 91; McDaniels
V. Flower Brook Mfg. Co., 22 Vt.
1804 Real Property. [§ 465
§ 465. Effect of execution — Return or cancellation.
After the instrument has been delivered, and the title
has consequently passed to the grantee named, it cannot,
it has usually been held, be revested in the grantor by
the mere physical transfer to him of the instrument, or
by the cancellation of the instrument, although this is by
agreement. In order to reconvey to his grantor, as to
any other person, the grantee must execute a conveyance
to him.^'^ In a few states, however, the view has been
adopted that the grantee in an unrecorded conveyance,
after returning the instrument to the grantor, with the
intention of revesting the title in him, or after cancel-
ling the instrument with this intention, cannot intro-
duce secondary evidence of the instrument, the practical
effect of this being to divest him of the title in favor of
the original grantor.^^ And in other jurisdictions it is
recognized that, under particular circumstances, the
grantee may, by reason of such return or cancellation
of the instrument, be estopped to assert title in him-
274; Banner v. Rosser, 96 Va. St. 550, 35 Atl. 214; Wilke v.
238, 31 S. E. 67. Wilke, 28 Wis. 296; Furguson v.
62. Gimon v. Davis, 36 Ala. Bond, 39 W. Va. 561, 20 S. E.
589; White v. Moffett, 108 Ark. 591; Slaughter v. Bernards, 97
490, 158 S. W. 505; Cranmer v. Wis. 184, 72 N. W. 977; Bolton
Porter, 41 Cal. 462; Weygant v. v. Carlisle, 2 H. Bl. 263; Ward
Bartlett, 102 Cal. 224, 36 Pac. v. ^ Lumley, 5 Hurlst. N. 87.
417; Botsford v. Morehouse, 4 And see cases cited ante, § 440
Conn. 550; Metropolitan Trust note 29.
& Sav. Bk. V. Perry, 259 111. 183, 63. Thompson v. Thompson, 9
102 N. E. 218; Gibbs v. Potter, ind. 323, 68 Am. Dec. 638; Far-
166 Ind. 471, 77 N. E. 942; Hatch rar v. Farrar, 4 N. H. 191; Mus-
V. Hatch, 9 Mass. 311, 6 Am. Dec. sey v. Holt, 24 N. H. 248;
67; Tabor v. Tabor, 136 Mich. Emery v. Dana, 76 N. H. 48?| 84
255, 99 N. W. 4; Green v. Hayes, Atl. 976; Gugins v. Van Gorder,
120 Minn. 201, 139 N. W. 139; 10 Mich. 523, Potter v. Adams,
McAllister v. Mitchner, 68 Miss. 125 Mo. 118, 28 S. W. 490; Arring-
672, 9 So. 829; Potter v. Adams, ton v. Arrington, 114 N. C. 115,
125 Mo. 118, 28 S. W. 490; Raynor 19 S. E. 145; Simpkins v. Wind-
V. Wilson, 6 Hill (N. Y.) 469; sor, 21 Ore. 382, (semhle);
Parshall v. Shirts, 54 Barb. (N. Howard v. Huffman, 3 Head
Y.) 99; Jeffers v. Philo, 35 Ohio (Tenn.) 562; Wilke v. Wilke, 28
St. 173; Tate v. Clement, 176 Pa. Wis. 296, and cases cited ante, §
§ 465]
Transfer Inter Vivos.
1805
self .^^ 111 one or two states the return of the instrument
to the grantor, or its destruction, with the intention of
revesting the ownership in him, has been regarded as
divesting the grantee of the equitable though not of
the legal title,^^ and in two states, apparently, of the
legal title as well.*^*^ In all these cases, how^ever, in
which the return or cancellation of the instrument has
been regarded as effective, directly or indirectly, in
favor of the grantor, the instrument was at the time
unrecorded, and the return or cancellation of an in-
strument previously recorded would, in every jurisdic-
tion, presumably, be absolute nugatory.^'''
440, note 34. But that it does
not so operate as against a third
person, see Thompson v. Thomp-
son, 9 Ind. 323, 68 Am. Dec. 638;
Wilke V. Wilke, 28 Wis. 296.
Compare Pollock, Contracts
(Williston's Edition) p. 849.
64. Whisenant v. Gordon, 101
Ala. 256, 13 So. 914 (semble) ;
Brown v. Brown, 142 Iowa, 125,
120 N. W. 724; Rowe v. Epling,
163 Ky. 381, 173 S. W. 801;
Patterson v. Yeaton, 47 Me. 308;
Comm. V. Dudley, 10 Mass. 403;
Trull V. Skinner, 17 Pick.
(Mass.) 213; Howe v. Wilder,
11 Gray (Mass.) 267; McAllister
V. Mitchner, 68 Miss. 672, 9 So.
829; Dukes v. Spangler, 35 Ohio
St. 119; Stanley v. Epperson, 45
Tex. 645.
65. Reavis v. Reavis, 50 Ala.
60; Sanford v. Finkle, 112 111.
146; Happ v. Happ, 156 111. 183,
41 N. E. 39; Cossman v. Keister,
223 111. 69, 8 L. R. A. (N. S.) 698,
114 Am. St. Rep. 305, 79 N. E. 58;
Matheson v. Matheson, 139 Iowa,
511, 18 L. R. A. (N. S.) 1167, 117
N. W. 755; Russell v. Meyer, 7
N. D. 335, 75 N. W. 262. A like
view was applied when the instru-
ment was not returned or can-
celled, but, having been lost, it
was regarded by the parties as
having been returned and cancell-
ed. Hays V. Dean, — Iowa, — 164 N.
W. 770.
66. Huffman v. Huffman, 1
Lea (Tenn.) 491; Peterson v.
Carson,— (Tenn.)— 48 S. W. 383;
Respass v. Jones, 102 N. Car. 5,
8 S. E. 770.
The making of a second con-
vej^ance of the same property, by
the same grantor to the same
grantee, but excepting a part of
that previously conveyed, has
been held to render the first
conveyance nugatory. Wardman
V. Harper, 156 Iowa, 453, 136
N. W. 893; Hall v. Wright. 137
Ky. 39, 127 S. W. 16.
67. See Pollock, Contracts.
(Williston's Ed.) 850; Thomp-
son V. Thompson, 9 Ind. 323, 68
Am. Dec. 6.38; Rifeiner v. Bow-
man, 53 Pa. St. 313; Wheeler v.
Single. 62 Wi.s. 380, 22 N. W.
569.
2 R. P.
CHAPTER XX
TRANSFER BY WILL.
§ 466. General considerations.
467. Will and conveyance distinguished.
468. Signing by testator.
469. Acknowledgment and publication.
470. Competency of witnesses.
471. Attestation and subscription.
472. Holographic and nuncupative wills.
473. Undue influence.
474. Lapsed and void devises.
475. The revocation of a will.
476. Children or issue omitted from will,
477. Revival of will.
478. Republication.
§ 466. General considerations. While, before the
Norman Conquest, and for a century thereafter, per-
sons were allowed to make post obit gifts of land, to
take effect in possession after the death of the donor,
the rule was established by the king's court, late in the
twelfth century, in favor of the heir, that a transfer of
a freehold interest in land, though to take effect only
after the death of the transferor, must be by livery of
seisin, and so any transfer of such an interest, answer-
ing to our modern will or devise, became impossible, ex-
cept in the case of certain lands devisable by local
custom.^ Eventually the invention of uses enabled one
to devise his land by making a feoffment to uses to be
declared by his last will, in which case chancery would
enforce the use so declared.^ The power of thus making
a will by the declaration of a use was, however, put an
end to by the Statute of Uses, this being in fact one of
1. 2 Pollock & Maitland, Hist. (5th Ed.) 64; Williams, Real
Eng. Law, 324-329. Prop. (21st Ed.) 168. See ante, §
2. 1 Sanders, Uses & Trusts 96.
(1806)
§ 466] Transfer by Will. 1807
tlie purposes of its passage, as recited in the preamble.
But the inconvenience of this prohibition of testamen-
tary disposition was so greatly felt that, five years
later, the Statute of Wills^ was passed, by which statute
tenants in fee simple were empowered to dispose by will
of all their lands held in socage tenure, and two-thirds
of those held by knight service, and, after the change of
all tenures into socage tenures,* all lands came within
the operation of this statute, and were devisable. '^
A will of real property was in early times, and
likewise after the Statute of Wills, regarded as a species
of conveyance, to take effect at a future time, that is,
on the death of the testator.** This theory had important
results upon the law of wills of real property, as dis-
tinct from wills of personalty. One most important
result of this theory was that, since one could convey
only such land as he owned, a will could operate u]ion
such real property only as the testator owned at the
time of making the will.'' And for this reason, if one,
after having made a will, aliened property covered by
the will, such property did not pass under the will,
even though he subsequently reacquired it,^
The rule that after-acquired real property does
not pass under a will has been changed by statute in
most, if not all, jurisdictions. In England the Wills
Act ^ provided that a testator might dispose of all real
and personal estate to which he might be entitled at the
time of his death, and that every will should, in the
absence of indications of a contrary intention, be con-
strued to take effect, with reference to the real and
personal estate comprised in it, as if executed imme-
diately before the death of testator. The effect of these
3. 32 Hen. VIII. c. 1 (A. D. 7. Harwood v. Goodright. 1
1540). Cowp. 87; Brydges v. Chandos. 2
4. An,te, § 12. Ves. Jr. 417, 427; Williams, Real
5. Digby, Hist. Real Prop. c. 8. Prop. 250.
6. Pollock & Maitland, Hist. 8. Post, § 475.
Eng. Law, 313; Williams, Real 9. 7 Wm. IV. and 1 VUt. c.
Prop. (21st Ed.) 250. 20 §§ 3, 24 (A. D. 18:57).
1808 Eeal Property. [^ 466
provisions is that a gift in general terms, such as ''all
my real estate," or "all my property," or "all my
land," passes after-acquired interests, unless a contrary
intention appears, and that a "residuary devise," that
is, a devise of all one's proj)erty not otherwise disposed
of, has the same effect.^"
In some of the states there are statutes substantially
similar to those in England,^^ and having a similar op-
eration.^- In other states the statute provides that
after-acquired real property shall pass by the wiU only
when it appears from the will that such was the testa-
tor's intention. ^^
Another effect of the theory that a devise was a
conversance was that a residuary devise was regarded as
a specific devise of such land as the testator owned at
the time of making the mil, and did not othermse dis-
pose of therein, a matter which will be considered here-
after more particularly in connection with "lapsed and
void devises."^*
A further result of the theory that a disposition of
real property by Avill was in effect a conveyance ap-
peared in the fact that a devise of real property, unlike
a legacy of personalty, was regarded as passing the land
directly to the devisee, without the intervention of the
executor or administrator. This rule still prevails in
the majority of jurisdictions, though it has been changed
by recent statutes in England and some states.^'
The king's courts, in the twelfth century, having es-
tablished the principle that there could be no testamen-
10. 1 Jarman, Wills, 291, 612. Briggs, 69 Iowa, 617, 29 N. W.
11. 1 Stimson's Am. St. Law, 632; Paine v. Forsaith, 84 Me. 66,
§§ 2806, 2809. 24 Atl. 590; Woman's Union Mis-
12. See Webb v. Archibald, 128 sionary Soc. of America v. Mead.
Mo. 299, 34 S. W. 54; Jacobs' Es- 131 111. 33, 23 N. E. 603; Kimball
tate, 140 Pa. St. 268, 11 L. R. A. v. Ellison, 128 Mass. 41.
767, 23 Am. St. Rep. 230, 21 Atl. 14. See iwst, § 474.
318. 15. 2 Woerner, Administration,
13. 1 Stimson's Am. St. Law, § § 337; 11 Am. & Eng. Enc. Law
2809 (C). See Church v. Warren (2d Ed.) 1037 et seq.
Mfg. Co., 14 R. I. 539; Briggs v.
"^ 467] Transfee by Will. 1809
tary gift of land, relinquished the jurisdiction of the
personal property of decedents to the ecclesiastical
courts, and thereafter the law of succession to personal
property, including chattels real, was developed by these
latter courts. ^^ As a result, the civil-law conception of
a will, not as a conversance, but as a secret and revoca-
ble instrument, which was to take effect at the death
of testator only, has always been applied in the case of
personalty ;^'^ and likewise the position of an executor
or administrator as the personal representative of the
deceased, to whom all his personal property passes on
his death, including that disposed of by will, became
established at an early date.^^
§ 467. Will and conveyance distinguished. The
question frequently arises whether a particular instru-
ment is to be regarded as a conveyance inter vivos or
as an instrument of a testamentary character, that is,
a will. The distinction would seem to be clear, liowever
difficult of application. If the instrument is intended to
be immediately operative, it cannot be regarded as a
will, and conversely, if it is intended to be operative only
upon the death of the maker, it cannot be regarded as a
conveyance inter vivos.'^^ The question is, in the last
16. 2 Pollock & Maltland, Hist. 144; Sapplngford v. King, 49 Ore.
Eng. Law, 329, 331. 102, 8 L. R. A. N. S. 1006, 89 Pac.
17. Holds-worth & Vickers, Lav/ 142, 90 Pac. 150; Trumbauer v.
of Succession, 31; Maine, Anc. Rust, 36 S. D. 301, 154 N. W. 801;
Law (4th Ed.) 173 et seg.; Har- In re Edwall's Estate, 75 Wash,
wood V. Goodright, Cowp. 87. 391, 134 Pac. 1041; and cases cited
18. 2 Pollock & Maitland, Hist. in note to Phillips v. Phillips,
Eng. Law, 334, 345; Digby, Hist. A. & E. Ann. Gas. 1916D, 996) is
Real Prep. (5th Ed.) 380. in a sense correct, but it is open
19. The statement frequently to criticism as suggesting that
made that whether an instrument the distinction depends on the
is a deed or a will depends upon character of the interest which
whether it passes a "present in- passes rather than on the time
terest (See e. g. Ransom v. at which it is to pass. Until the
Pottawattamie County, 168 Iowa, testator's death, nothing passes by
570, 150 N. W. G57; Glover v. a will.
Fillmore, 88 Kan. 545, 129 Pac.
1810 Real Peoperty. [§467
analysis, merely whether the maker of the instrument
intended, by its execution, immediately to transfer an
interest to another, or whether he intended merely to
declare in whom an interest should vest upon his death,
in case he did not subsequently indicate a different in-
tention. The difficulty in the practical application of
the distinction lies in the difficulty of ascertaining the
intention of the maker of the instrument in this regard.
That no estate in favor of the person named is to com-
mence until the death of the maker of the instrument
does not show that the instrument is testamentary in
character,-'' since an estate to commence at his death
can, as previously stated,-^ be created by a conveyance
inter vivos. And the fact that the maker expressly
reserves a life estate,^^ or the possession and control
of the property during his life,^^ is perfectly compatible
with the operation of the instrument as a conveyance
inter vivos. Nor is the instrument necessarily a will
because the beneficiary named has merely a possibility,
and no assured prospect, of an estate, to commence upon
the testator's death. For instance a conveyance may
be made inter vivos of a life estate to commence in
20. West V. Wright, 115 Ga. St, Rep. 334, 59 Pac. 1059; Deck-
277, 41 S. E. 602; Kytle v. Kytle, enbach v. Deckenbach, 65 Ore. 160,
128 Ga. 387, 57 S. E. 748; Bowler 130 Pac. 729; Muntz v. Whitcomb,
V. Bowler, 176 111. 541, 52 N. E. 40 Pa. Super Ct. 553.
4.37; Love v. Blauw, 61 Kan. 496, 23. Adair v. Craig, 135 Ala.
48 L. R. A. 257, 59 Pac. 1059; 332, 33 So. 902; Guthrie v.
O'Day V. Meadows, 194 Mo. 588, Guthrie, 105 Ga. 86, 31 S. E. 40;
112 Am. St. Rep. 542, 92 S. W. Spencer v. Razor, 251 111. 278, 96
637; Fellbush v. Fellbush, 216 Pa. N. E. 300; Tansel v. Smith, 49
141, 65 Atl. 28. Ind. App. 263, 93 N. E. 548, 94 N.
21. Ante, § 159. E. 890; Saunders v. Saunders, 115
22. Mays v. Burleson, 180 Ala. Iowa, 275, 88 N. W. 329; Dozier
396, 61 So. 75; Sharpe v. Mat- v. Toalson, 180 Mo. 546, 102 Am.
thews, 123 Ga. 794, 51 S. E. 706; St. Rep. 586, 79 S. W. 420; Ran-
Timmons v. Timmons, 49 Ind. ken v. Donovan, 166 N. Y. 626, 60
App. 21, 96 N. E. 622; Lefebure N. E. 119; Cook v. Cooper, 59 S.
V. Lefebure, 143 Iowa, 293, 121 C. 560. 38 S. E. 218; Jones v
N. W. 1025; Love v. Blauw, 61 Caird, 153 Wis. 384, 141 N. W.
Kan. 496, 48 L. R. A. 257, 78 Am. 228.
§ 467] Transfer by Will. 1811
interest upon the grantor's death, in which case the
beneficiary has, previous to the grantor's death, merely
a possibility of an estate, dependent on his survival of
the grantor.2^ And one may, by a conveyance inter
vivos, limit an estate to conmience on the death of the
maker of the instrument provided a particular con-
tingency occurs, provided, for instance the transferee
named survives the maker.^^ In such a case the gi-antee
would have merely a possibility of an estate, but the
possibility becomes his immediately upon the delivery
of the conveyance, and he cannot be deprived of the
possibility by any act on the part of the maker.
While a will is in its nature revocable and a convey-
ance inter vivos is in its nature not revocable, the fact
that the instrument contains an express power of revoca-
tion does not show it to be a will.-*^ The right to revoke a
will, which is based on the fact that the will does not be-
come operative until the testator's death, is in effect a
right to render the instrument absolutely nugatory, while
an express powder of revocation contained in a convey-
ance inter vivos does not involve a right to render the in-
strument absolutely nugatory, but merely empowers the
grantor to divest an estate or interest which is created
by the conveyance. Occasionally, language is used by
the courts suggesting that the absence of an express
power of revocation tends to show that the instrument
24. See e. g. Lindemann v. as deciding the contrary, they
Dobossy, — (Tex. Civ. App.) — 107 cannot, it is submitted, be up-
S. W. Ill; West v. West, 155 held.
Mass. 317, 29 N. E. 582. 26. Mays v. Burleson, 180 Ala.
25. See e. g., Thomas v. Wil- 396, 61 So. 75; Cribbs v. Walker,
Hams, 105 Minn. 88, 117 N. 74 Ark. 104, 85 S. W. 244;
W. 155; Phifer v. Mullis, 167 Tennant v. John Tennant Mem-
N. C. 405, 83 S. E. 582. If orial, 167 Cal. 570, 140 Pac. 212;
Kenney v. Parks, 125 Cal. 146, 57 Brady v. Fuller, 78 Kan. 448, 96
Pac. 772; Dunlap v. Marnell, 95 Pac. 854; Wall v. Wall, 30 Miss.
Neb. 535, 145 N. W. 1017; In re 91, 64 Am. Dec. 147; Stamper v.
EdwaH's Estate, 75 Wash. 391, Venable, 117 Tenn. 557, 97 S. W.
134 Pac. 1041, are to be regarded 812; 1 Jarman, Wills, 22.
1812 Real Peopekty. [§ 467
was intended as a conveyance inter vivos^'^ but the prop-
erty of such an inference seems most questionable. The
absence of an express power of revocation might quite
as well be regarded as tending to show that the in-
strument was intended as a will, since a will is always
I'e vocable, and there is no possible object in inserting
sucli an express power therein.
That an instrument has been expressly delivered
as a conveyance would seem to be conclusive that
it is not intended to operate as a will, unless it is
susceptible of division into two instruments, one a
will and the other a conveyance. Usually, however,
even though the circumstances are such as to create
a presumption of delivery, so as to validate the in-
strument if regarded as a conveyance, they are not
such as to show conclusively that the instrument was
intended to operate as a conveyance. If, for instance,
the maker hands the instrument to the transferee
named, though this creates a presumption of delivery
in case the instrument is to be regarded as a convey-
ance,^^ and may tend to show that the instrument was
intended as a conveyance,-^ it is perfectly possible that
the instrument was put in such transferee's care as a
will, and that it was not intended to operate as a con-
veyance.'*" On the other hand, the fact that there is
no evidence of delivery of the instriunent, such as is
necessary to support it as a conveyance inter vivos, that
27. See e. g. Abney v. Moore, coll, 143 Cal. 528, 77 Pac. 471;
106 Ala. 131, 18 So. 60; Harper Youngblood v. Youngblood, 74 Ga.
V. Reaves, 132 Ala. 625, 32 So. 614; Hathaway v. Cook, 258 111.
721; Stroup v. Stroup, 140 Ind. 92, 101 N. E. 227; Fellbush v.
179, 27 L. R. A. 523, 39 N. B. Fellbush, 216 Pa. 141, 65 Atl.
864; Lacy v. Comstock, 39 Kan. 28; Billings v. Warren, 21 Tex.
86, 39 Pac. 1024; Kelleher v. Civ. App. 77, 50 S. W. 625.
Kernan, 60 Md. 440; Ellis v. 30. See Fellbush v. Fellbush,
Pearson, 104 Tenn. 591, 58 S. 216 Pa. 141, 65 Atl. 28; Griffin
W. 318. V. Mcintosh, 176 Mo. 392, 75 S
28. Ante, § 463, note 67. W. 677; Tewkesbury v. Tewkes-
29. AUney v. Moore, 106 Ala. bury, 222 Mass. 595, 111 N. E.
131, 18 So. 60; DriscoII v. Dris- 394.
§ 467] Teansfkr by Will. 1813
is, no evidence of an expression, by word or act', of an
intention that it shall operate as such, won Id seem to
afford some room for an inference that it was intended
to operate only at the maker's death,^^ though an in-
strument which is in form clearly a conveyance inter
vivos cannot, it would seem evident, be regarded as a
will merely because it has not been delivered as a con-
veyance."^ In so far as a lack of delivery can be
inferred from the maker's retention of possession of the
instrunient,^'^ and in so far as testamentary intention can
be inferred from a lack of delivery ,^^ such intention can
be inferred from the retention of possession. But the
retention of possession is not conclusive of a lack of
delivery,^^ and it is certainly not conclusive of an in-
tention that the instrument shall operate as a will
rather than as a conveyance.
The fact that an instrument of doubtful character
is invalid if regarded as a conveyance while valid if
regarded as a will, has been referred to as a ground
for regarding it as a ^^all,'*^ and conversely, the fact
that an instrument is invalid if regarded as a will while
valid if regarded as a conveyance has been considered
a ground for regarding it as a conveyance.''^ This view
is based partly upon the policy of the courts to give
31. Sharp v. HaH, 86 Ala. 110, 35. Ante, § 461, uole 43.
11 Am. St. Rep. 28; Rice v. 36. Heaston v. Kreig, 167 Ind.
Carey, 170 Cal. 748, 151 Pac. 101, 119 Am. St. Rep. 475, 77 N.
135; Nichols v. Chandler, 55 Ga. E. 805; Symes v. Arnold, 10 Ggi.
369; Nichols v. Huddleson, 13 B'. 506; Sharp v. Hall, 86 Ala. 110.
Men. (Ky.) 299; Bromley v. 11 Am. St. Rep. 28; Trumbauer
Mitchell, 155 Mass. 509, 30 N. v. Rust, 36 S. D. 301. 154 N. W.
E. 83; Edwards v. Smith, 35 801; 1 Jarman, Wills, 22. And
Miss. 197; Miller v. Holt, 68 Mo. see ante, this section, note 31.
584; Kresecker's Estate, 170 Pa. 37. Jacoby v. Nichols, 23 Ky.
St. 476; RouDtree v. Rountree, L. Rep. 205, 62 S. W. 734;
85 S. C. 383, 67 S. E. 471. Thomas v. Williams, 105 Minn.
32. See Dexter v. Witte, 138 88, 117 N. W. 155; Abney v.
Wis. 74, 119 N. W. 891. Moore, 106 Ala. 131, 18 So. 60;
33. Ante, § 4G1, note 62. Wynn v. Wynn, 112 Ga. 214, 37
34. Ante, this section, note 31. S. E. 378.
1814 Kbal Propeety. [§ 467
to an instrument a legal operation wherever possible,
and partly upon the consideration that the maker of the
instrument must have intended it to operate in the
mode in which he rendered it capable of operating.
The fact, however, that an instrument which is clearly
intended to operate as a will is not executed with the
formalities required in the case of a will is not sufficient,
it would seem, to give it validity as a conveyance inter
vivos, but it is totally inoperative."^ The maker's in-
tention that the instrument shall not be operative until
his death excludes an intention that it shall be im-
mediately operative, which latter intention is necessary
to constitute delivery.^^ With this intention lacking, the
fact that the maker hands the instrument to the trans-
feree named therein could not make the instrument
effective as a conveyance inter vivos.'*'^
That an instrument otherwise in the form of a
conveyance inter vivos contains a clause to the effect
that it is not to take effect until the maker's death has
in some cases been regarded as showing a testamentary
intent,^ ^ while in others this has been regarded as not
inconsistent with the operation of the instrument as a
conveyance imter vivos, and as merely postponing the
38. See Murray v. Cazier, 23 102, 8 L. R. A. (N. S.) 1066, 89
Ind. App. 600, 53 N. E. 476; Pac. 142, 90 Pac. 150; Turner
Priester v. Hohloch, 70 N. Y. v. Scott, 51 Pa. 26; Coulter v.
App. Div. 256, 75 N. Y. Supp. Shelmadine, 204 Pa. 120, 53 Atl.
405; Tuttle v. Raish, 116 Iowa, 638; Fellbush v. Fellbush, 216
331, 90 N. W. 66; Larson v. Pa. 141, 65 Atl. 28.
Lund, 109 Minn. 372, 123 N. W. 41. Seay v. Huggins, 194 Ala.
1070. 496, 70 So. 113; Donald v. Nes-
39. Ante, § 461, notes 40-47. bit, 89 Ga. 290, 15 S. E. 367;
40. See Griffin v. Mclntosli, 176 Ransom v. Pottawattamie Coun-
Mo. 392, 75 S. W. 677. And see ty, 168 Iowa, 570, 150 N. W.
cases cited, ante, § 461, note 47; 657; In re Bybee's Estate, 179
Murphy v. Gabbert, 166 Mo. 596, Iowa, 1089, 160 N. W. 900;
89 Am. St. Rep. 733, 66 S. W. Leonard v. Leonard, 145 Mich.
536; Terry v. Glover, 235 Mo. 563, 108 N. W. 985; Moody v.
544, 139 S. W. 3S7; Pinkham v. Macomber, 159 Mich. C57, 124
Pinkham, 55 Neb. 729, 76 N. W. N. W. 549; Simpson v. Mc-
411; Sappingfield v. King, 49 Ore. Gee, 112 Miss. 344, 73 So. 55.
§ 467] Teansfer by Will. 1815
transferee's right of enjoyment.'' ^ Such language would
seem, prima facie, to indicate a testamentary intention,
but when read in connection with the context and the
surrounding circumstances, it may no doubt be suscep-
tible of a different construction. The decisions which
regard such a clause as merely postiDoning the right of
enjoyment are to a considerable extent, it appears,
based on the consideration that otherwise the instrument
would be a nullity because not executed as a will. It
does not seem that any absolute rule that such a
clause shows, or that it does not show, a testamentary
intention, should properly be aserted, it being a ques-
tion merely of the construction of the language used.
One may, of he chooses, by conveyance inter vivos,
create in another an estate to commence upon his, the
grantor's, death,^2a ^^^ ^^^ j^^^ ^^^^ -^^ ^j^^ particular
instrument he indicates an intention to create such an
estate is certainly not conclusive that the instrument
is a will and not a conveyance.
That an instrument undertakes to dispose only of
such property as the maker may have at the time of
his death has been regarded as strong, if not conclusive,
evidence of an intention that the instrument shall op-
erate as a will and not as a conveyance.^^
42. Abney v. Moore, 106 Ala. Hunt, 119 Ky. 39, 68 L. R. A.
131, 18 So. 60; Phillips v. 180, 82 S. W. 998; Abbott v.
Phillips, 186 Ala. 545, 65 So. Holway, 72 Me. 298; Vessey v.
89; Burch v. Nicks, 50 Ark. Dwyer, 133 N. W. 613; Rogers
367, 7 S. W. 563; West v. v. Rogers (Miss.) 43 So. 946;
Wright, 115 Ga. 277, 41 S. E. Wimpey v. Ledford (Mo.) 177
602; Griffith v. Douglas, 120 S. W. 302; Merck v. Merck, 83
Ga. 582, 48 S. E. 129; Harsh- S. C. 329, 65 S. E. 347; Truni-
barger v. Carroll, 163 111. 636, bauer v. Rust, 36 S. D. 301, 154
45 N. E. 565; Hathaway v. N. W. 801; Garrison v. Mc-
Cook, 258 ni. 92, 101 N. E. 227; Lain. (Tex. Civ. App.) 112 S.
Kelly V. Shimer, 152 Ind. 290, W. 773; Lauck v. Logan, 45 W.
53 N. E. 233; Rust v. Ruth- Va. 25, 31 S. E. 986.
erford, 95 Kan. 152, 147 Pac. 42a. Ante, § 159.
805; Phillips v. Lumber Co., 43, Nichols v. Nichols, 108 Cal.
94 Ky. 445, 42 Am. St. Rep. 444, 143 Pac. 712; Robinson v.
367, 22 S. W. 652; Hunt v. Schley, 6 Ga. 515; Brewer v.
1816
Keal Property.
[§ 467
That an instrument, in form a conveyance inter
vivos, is handed to a person other than the grantee,
with instructions to retain it until the grantor's death,
is not, by reason of the reference to the grantor's death,
testamentary in character, is generally recognized,^*
such a physical transfer being regarded as involving
delivery, of a quasi conditional character, of the instru-
ment as a conveyance.*-^ If, however, the grantor, at
the time of handing the instrument to a third person,*^
or to the grantee himself,* '^ indicates an intention that
the instrument shall have no operation whatsoever until
the grantor's death, and that in the meanwhile he may
revoke or cancel it, or treat it as not legally existent,
the instrument cannot be regarded as having been de-
livered as a conveyance, and it must be regarded, either
as an instrument of conveyance which is nugatory for
lack of delivery, or as a testamentary instrument which
is valid only if executed as such.*'^^
Baxter, 41 Ga. 512, 5 Am. Rep.
530; Roth v. Michalis, 125 111.
325, 17 N. E. 809; Heaston v.
Kreig, 167 Ind. 301, 119 Am. St.
Rep. 475, 77 N. E. 805; Poore
V. Poore, 55 Kan. 687, 41 Pac.
973; Watkins v. Dean, 10 Yerg.
(Tenn.) 321, 31 Am. Dec. 583;
See Kyle v. Perdue, 87 Ala. 423.
6 So. 296; Roth v. Michaelis, 125
111. 325, 17 N. E. 809; Gage v.
Gage, 12 N. H. 371.
44. Griswold v. Griswold, 148
Ala. 239, 121 Am. St. Rep. 64,
42 So. 554; Fine v. Lasater, 110
Ark. 425, 161 S. W. 1147; Hunt
V. Wicht, 174 Cal. 205, 162 Pac.
639; Thurston v. Tubbs, 257 111.
465, 100 N. E. 947; American
Nat Bank of Lincoln v. Martin,
277 111. 629, 115 N. E. 721; Wheel-
er V. Loesch, 51 Ind. App. 262,
99 N. E. 502; Schniinger v.
Bawek, 135 Iowa, 131, 112 N. W.
210; Hoagland v. Beckley, 158
Mich. 565, 123 N. W. 12; Peter-
son V. Bisbee, 191 Mich. 439, 158
N. W. 134; Dickson v. Miller, 124
Minn. 346, 145 N. W. 112; Saltz-
sieder v. Saltzsieder, 219 N. Y.
523, 114 N. E. 856; Shaffer
V. Smith, 53 Okla. 352, 156 Pac.
1188.
45. A7ite, § 462.
46. Williams v. Kidd, 170 Cal.
631, Ann. Cas. 1916E, 703, 151
Pac. 1; Shipley v. Shipley, 274
111. 506, 113 N. E. 906; Tewkes-
bury V. Tewkesbury, 222 Mass.
595, 111 N. E. 394; Felt v. Felt,
155 Mich. 237, 118 N .W. 953.
47. Benner v. Bailey, 234 IH.
79, 84 N. E. 638; Felt v. Felt,
155 Mich. 237, 118 N. W. 953;
Watson V. Magill, 85 N. J. Eq.
592, 97 Atl. 43.
47a. Cox V. Schnerr, 172 Cal.
371, 156 Pac. 509.
§ 467]
Transfer by Will.
1817
Extrinsic facts and circumstances may usually be
considered in order to ascertain whether a particular
instrument was or was not intended to operate as a
will."^^ That is, the avimus testandi, if not apparent
from the face of the instrument, may be shown other-
wise, and consequently, although the phrasinr^ of an
instrument is strongly suggestive of a conveyance inter
vivos, or even of a contract, it may operate as a will.^^
Conversely, although the instrument contains phrases
suggestive of a will, it may be shown that it was in-
tended to operate, not as a will but as a conveyance
inter vivos.^^ There are several decisions, however, that
if an instrument contains no language suggestive of a
testamentary intent, such intent cannot be shown by
proof of extrinsic circumstances.^^ And there are also
decisions that if the language of the instrument clearly
shows a testamentary intent, it cannot be shown to
have been intended to take effect as a conveyance.^-
48. Nichols v. Nichols, 2
Phillim. 183; Lister v. Smith, 3
Swab. & Tris. 282; Sharp v.
Hall, 86 Ala. 110, 11 Am. St.
Rep. 28; Clarke v. Ransom, 50
Cal. 595; Tuttle v. Raish, 116
Iowa, 331, 90 N. W. 66 (semble) ;
Wareham v. Sellers, 9 G. & J.
(Md.) 98; McGrath v. Reynolds,
116 Mass. 566; Prather v. Prath-
er, 97 Miss. 311, 52 So. 449;
Outlaw V. Hurdle, 46 N. C. 150;
Tozer v. Jackson, 164 Pa. 373,
30 Atl. 400; White v. Helmes, 1
McCord (S. C.) 430; Ferguson
V. Ferguson, 27 Tex. 339; Bel-
garde V. Carter, — Tex. Civ. App.
— , 146 S. W. 964; Smith v.
Smith, 112 Va. 205, 33 L. R. A.
(N. S.) 1018, 70 S. E. 491.
49. Gomez v. Higgins, 130
Ala. 493, 30 So. 417; Wellborn
V. Weaver. 17 Ga. 267, 63 Am.
Dec. 235; Blackman v. Preston,
123 111. 381, 15 N. E. 42; Ison
V. Halcomb, 136 Ky. 523, 124 S.
W. 813; Moody v. Macomber,
159 Mich. 657, 124 N. W. 549;
Sartor v. Sartor, 39 Miss. 760;
In re Belcher, 66 N. C. 51;
Kiesecker's Estate, 190 Pa. St.
476, 42 Atl. 886; Ingram v.
Porter, 4 McCord (S. C.) 198.
50. Ward v. Ward. 104 Ky.
857, 48 S. W. 411: Clayton v.
Liverman, 29 N. C. 92; Tozar v.
Jackson, 164 Pa. 373; Faulk v.
Fa-ulk, 23 Tex. 653.
51. Clay V. Layton, 134 Mich.
317, 96 N. W. 458; Dodson v.
Dodson, 142 Mich. 586, 105 N. W.
1110; Elliott V. Cheney, 183 Mich.
561, 150 N. W. 163; Noble v.
Fickes, 230 111. 594, 82 N. E.'
950, 13 L. R. A. N. S. 1203.
And see Fellbush v. Fellbuali,
216 Pa. 141, 65 Atl. 28.
52. Goodale v. Evans, 263 Mo.
1S18 Eeal Property. [§ 468
Upon the question whether an instrument which
purports on its face to be a will, and is duly executed as
such, can be shown to have been executed without any
intention that it have a legal effect, whether it can be
shown, for instance, that it was executed merely as a
memorandum, or to illustrate how a will should be made,
or to obtain immunity from the solicitation of a person
named therein, the cases are not entirely in accord.
The tendency of the authorities in this country is rather
adverse to the introduction of evidence for this purpose,
the solemnity of the execution of the instrument in the
statutory mode being regarded as sufficient to exclude
the jDOSsibility of thus asserting a lack of testamentary
intent.^^ The English authorities are to the effect that
a lack of such intent rnay be shown.^*
§ 468. Signing by testator. In all states the
statute requires, as did the English Statute of Frauds,
that a will shall be signed by the testator, or, in the
majority of states, by some other person, by the testa-
tor's express direction, and in his presence.^^ The
testator's owm signature may be by means of a mark,
even though he is able to write, provided the mark is
intended as a signature ;^*^ and so, in signing, he may use
219, 172 S. W. 370; Phifer v. 52 Am. Dec. at p. 167.
Mullis, 167 N. C. 405, 83 S. E. 54. Nicholls v. Nicholls, 2
582. Phniim. 183; Lister v. Smith, 3
53. BarnewaU v. Murrell, 108 Swab. & Tr. 282; 1 Jarman, Wills,
Ala. 366, 18 So. 831; In re Ken- 23. And such is the rule in
nedy, 159 Mich. 548, 28 L. R. A. Massachusetts. Fleming v. Mor-
(N. S.) 417, 134 Am. St. Rep. rison, 187 Mass. 120, 105 Am. St.
743, 18 A. & E. Ann. 892; Heas- Rep. 386, 72 N. E. 499.
ton V. Krieg, 167 Ind. 101, 119 55. 1 Stimson's Am. St. Law,
Am. St. Rep. 475, 77 N. E. 805; § 2640.
Brown v. Avery, 63 Fla. 376, 56. In re Clark's Estate, 170
Ann. Cas. 1914A, 90. 58 So. 34. Cal. 418, 149 Pac. 828; Robinson
And see Sewell v. Slingluff, 57 v. Brewster, 140 111. 649, 33 Am.
Md. 537. As to the admissibility St. Rep. 265; Bevelot v. Lestrade,
of the maker's declarations upon 153 111. 625, 38 N. E. 1056; Rook
this question, see 3 Wigmore, v. Wilson, 142 Ind. 24, 51 Am. St.
Evidence, § 1736, and note in Rep. 163; Ahnert v. Ahnert, 98
§ 468] Transfee by Will. 1819
only his initials, or his Christian name, or even adopt
another name than his own.'" When the signature is
by a person other than the testator, the requirements
that it be by his direction and in his presence must be
strictly comi^lied with.^^ Even in the absence of lan-
guage in the statute expressly authorizing the signature
to be made by another than the testator, by the latter 's
direction and in his presence, such a signature would, it
seems, ordinarily be upheld as being in effect the signa-
ture of the testator himself, in the absence of language
in the statute clearly sho^\dng a contrary intention.^"
This would be in accord with the rule which prevails
in the case of a conveyance inter vivos, ^^ as well as
in other connections,''^ and a different construction of
the statute would have the unfortunate effect of dis-
abling any person, incapacitated by physical disability
to make a mark, from making a will. There appears no
reason why a signature by another in one's own pre-
sence, properly proven, should not be as effective for the
purpose of a will as for other purposes.
In regard to the position of the signature, the niles
in the different states are not in accord. Under statutes
which follow the English Statute of Frauds in merely
Kan. 768, 160 Pac. 201; Nickerson Greenough v. Greenough, 11 Pa.
V. Buck, 12 Gush. (Mass.) 332; St. 489. See Pool v. Buffum, 3
Plate's Estate, 148 Pa. St. 55, 33 Ore. 438, 443.
Am. St. Rep. 805; In re Hers- 59. In re McElwaine, 18 N.
perger's Estate, 24B Pa. 569, 91 J. Eq. 499, the statute was con-
st. 942; Wilson v. Craig, 86 strued as requiring the physical
Wash. 465, 150 Pac. 1179. act of signature to be the act
57. 1 Jarman, Wills, 79; In of the testator, and Robins v.
re Savory, 15 Jur. 1042; Knox's Coryell, 27 Barb. (N. Y.) 559
Estate, 131 Pa. 220, 6 L. R. A. contains a dictum that such
353, 17 Am. St. Rep. 798, 18 would be the case in the absence
Atl. 1021. of words in the statute indica-
58. Page, Wills, §§ 175, 176; tive of a contrary intention.
Waite V. Frisbie, 45 Minn. 361, 60. Ante, § 457.
47 N. W. 1069; Murry v. Hen- 61. See authorities cited 25
nessey, 48 Neb. 608, 67 N. W. Am. & Eng. Encyc. Law (2nd
470; Armstrong's Ex'r v. Arm- Ed.), 1066.
strong's Heirs, 29 Ala. 538;
1S20 Eeal Peopekty. [§ 468
requiring that tlie will be signed, it has been decided that
the place of the signature, whether by the testator him-
self, or by another for him, is immaterial, and that it
may be made in the margin, in the body of the will, or
elsewhere. Accordingly, the writing of the testator's
name in the body of the will, as when he commences it,
''I, John B.," is sufficient, under such statutes, as a.
signature, provided, it seems, it is so intended, or at
least another signature is not intended to be added.'^^
The statutes of a number of states, however, require the
testator to "subscribe" the will, or contain some other
express requirement that the signature appear at the
end of the will,*^^ and there are a number of decisions
upon the question of whether the signature to a parti-
cular will was at the end thereof, so as to comply wdth
the statute.*^* The solution of this question involves the
consideration, not only of whether some particular lan-
guage is to be regarded as following the signature,"^
but also of whether this language is of such a disposi-
tive character as properly to constitute a part of the
will, so that its occurrence after the signature can be
regarded as conclusive that this is not at the end of
the will.*^*^ It has, moreover, occasionally been con-
62. lieraayne v. Stanley, 3 ject up to 1907 are collected in
Lev. 1; Armstrong's Ex'r v. Arm- a note in 17 L. R. A. N. S. at
strong's Heirs, 29 Ala. 538; Miles', p. ;>53. See also editorial note,
Will, 4 Dana. (Ky.) 1; Arm- 12 Columbia Law Rev. 380.
strong V. Walton, 105 Miss. 337, 65. See e. g. Irwin v. Jac-
62 So. 173; Catlett v. Catlett, ques, 71 Ohio St. 395, 69 L. R.
55 Mo. 330; Peace v. Edwards, A. 422, 73 N. E. 683; In re
170 N. C. 64, Ann. Cas. 1918A, Swire, 225 Pa. St. 188, 73 Atl.
778, 86 S. E. '"807; Lawson v. 1110.
Dawson. 21 Tex. Civ. App. 361, 66. See Baker v. Baker, 51
53 S. W. 64. See In re Phelan's Ohio St. 217; In re Andrews, 162
Estate, 82 N. J. 316, 87 Atl. N. Y. 1, 48 L. R. A. 662, 76
625; In re Booth, 127 N. Y. 109, Am! St. Rep. 294; Wineland's Ap-
24 Am. St. Rep. 429. peal, 118 Pa. St. 37, 4 Am. St.
63. 1 Stimson's Am. St. Law, Rep. 37.
§ 2640; 1 Woerner, Administra- That a clause appointing an
tion, § 39. executor is part of the will, so
64. The cases upon the sub- that if the signature precedes
^ 469] Transfer by Will. 1821
tended that the wiU is not signed at the end thereof
by reason of the fact that a very considerable blank
space exists between the last clause of the will and the
signature.*'^ The signature may be either before or after
the *' attestation" clause,^^ the nature of which is ex-
plained in another section.*^'' If writing is added below
the signature subsequently to the execution and publica-
tion of the will, it is merely an attempted codicil, not
affecting the validity of the will as expressed in the
writing before the signature/*^
§ 469. Acknowledgment and publication. The
statute sometimes requires the testator's signature to be
acknowledged by him before witnesses, usually as an
alternative to his actual signature of the will in their
presence,"^ No particular words of acknowledgment are
necessary, it being sufficient that he indicates to the
witnesses, either by words or acts, that the signature
is his and the instrument his act."- In at least three
states, on a construction of the statute, it has been
regarded as necessary that the witness see the signa-
snch clause, the signature is not 70. In (re Jacobson. 6 Dem.
at the end of the win, see Sur. (N. Y.) 298; Chaplin, Wills,
Sisters of Charity of St. Vin- 229.
cent de Paul v. Kelly, 67 N. Y. 71. 1 Stimson's Am. St. Law,
409. Contra. Ward v. Putnam, § 2642. See Limbach v. Bolin
119 Ky. 889, 85 S. W. 179. 169 Ky. 204, L. R. A. 1916D,
67. In re Seaman, 146 Cal. 1059, 183 S. W. 495; Ludlow v.
455, 106 Am St. Rep. 53, 80 Ludlow, 36 N. J. Eq. 597; Sisters
Pac. 700; Morrow's Estate, 204 of Charity of St. Vincent de
Pa. St. 479, 54 Atl. 313. See Paul v. Kelly, 67 N. Y. 409.
Sears v. Sears, 77 Ohio St. 104, 72. Thompson v. Karme, 268
17 L. R. A. (N. S.) 353, 11 A. 111. 168, 108 N. E. 101; Turner
& E. Ann. Cas. 1008. v. Cook, 36 Ind. 129; Smith v.
68. Younger v. Duffie, 94 N. Holden, 58 Kan. 535, 50 Pac. 447;
Y. 535, 46 Am. Rep. 156; In re Nickerson v. Buck, 12 Cush.
Young's Will, 153 Wis. 337, 141 (Mass.) 332; In re Landy, 148
N. W. 226; Hallowell v. Hallo- N. Y. 403; In re Herring, 152
well, 88 Ind. 251; Page, Wills, N. C. 258, 67 S. E. 570; In re
§ 183. Claflin, 73 Vt. 129, 87 Am. St.
69. Post, § 471. Rep. 693.
R. P.— 40
1S2:
Eeal Pbopbrty.
[§ 469
ture which the testator acknowledges to be his,^^ while in
others this is regarded as unnecessary, it being suffi-
cient that the witness is told by the testator that the
instrument has been. signed by him, or that he otherwise
indicates to the witness that such is the case.'^^'^'
There is also, in some states, a requirement that the
testator acknowledge, in the presence of witnesses, that
the instrument is his last will and testament, this con-
stituting what is known as the ''publication" of the
will.''^'' The publication, however, like the acknowledg-
ment of the signature, need not be by express declara-
tion, the testator's mere assent to a statement by an-
other, or incidental reference to the instrument as his
will, being sufficient, if it plainly informs the witnesses
that the instrument is his will."^' In the absence of a
statutory requirement, it is unnecessary that the testa-
tor inform the witnesses that the instrument is his willJ^
73. In re Mackay's Will, 110
N. Y. 611, 1 L. R. A. 491, 6 Am.
St. Rep. 409, 18 N. E. 433;
KTunn v. Ehlert, 218 Mass. 471,
196 N. E. 163; Pope v. Rogers,
92 Conn. 248, 102 Atl. 583. See
editorial notes, 28 Harv. Law
Rev., 217; 27 Yale Law Journ.,
847.
74-75. White v. Trustees of
British Museum, 6 Bing. 310;
Hobart v. Hobart, 154 111. 610,
45 Am. St. Rep. 151; Gould v.
Chicago Theological Seminary,
189 111. 282, 59 N. E. 536;
Dougherty v. Crandall, 168 Mich.
281, 134 N. W. 24.
76. 1 Stimson's Am. St. Law,
§ 2642; Bigelow, Wills, 47.
77. In re CuUberg's Estate,
(Cal.), 146 Pac. 888; Harp v.
Parr, 168 111. 459, 48 N. E. 113;
Schierbaum v. Schemme, 157 Mo.
1, 80 Am. St. Rep. 604; In re
Williams' Will, 50 Mont. 142,
145 Pac. 957; In re Ayers' Es-
tate, 84 Neb. 16, 120 N. W. 491;
Hildreth v. Marshall, 51 N. J.
Eq. 241, 27 Atl. 465; Gilbert v.
Knox, 52 N. Y. 125; In re Meurer,
44 Wis. ;?92, 28 Am. Rep.*59L
78. White v. Trustees of
British Museum, 6 Bing. 310;
Moodie v. Reid, 7 Taunt. 355;
Barnewall v. Murrell, 108 Ala.
366. 18 So. 831; Canada's
Appeal from Probate, 47 Conn.
450; In re Barry's Will, 219 111.
391, 76 N. E. 219; Turner v.
Cook, 36 Ind. 129; Scott v.
Hawks, 107 Iowa, 723, 70 Am. St.
Rep. 228; Osburn v. Cook, 11
Cush. (Mass.) 532, 59 Am. Dec.
155; Watson v. Pipes, 32 Miss.
451; In re Skinner, 40 Ore. 571,
67 Pac. 951; Dauphin County His-
torical Soc. V. Kelker, 226 Pa.
St. 16, 134 Am. St. Rep. 1010;
Long V. Michler, 133 Tenn. 51.
179 S. W. 477; In re Claflin's
§ 470] Transfer by Will. 1823
§ 470. Competency of witnesses. The state stat-
utes, with few, if any, exceptions, require the signature,
or acknowledgment thereof, to be in the presence of
two and sometimes three witnesses,"^ and also, as just
stated, publication of the will as such in the presence
of witnesses is frequently required. If there be less
than the statutory number of competent witnesses, the
will is void.^"^ The statute usually requires the witness
to be ''competent" or " credible, "^^ and the term
"credible" is construed as meaning the same as "com-
petent."^- It is sufficient that the competency exists at
the date of the will; and the fact that the witness
becomes subsequently incompetent to testify does not in-
validate the will, though it may necessitate that the will
be proven by secondary evidence.**^ In other words, the
statutory requirement as to the witnesses necessary to
attest the execution of a will is entirely distinct from the
question as to how the will shall be proved after the
testator's death, though such proof is by means of the
attesting witnesses, if they are then competent to testify,
and are accessible.^^
Will, 75 Vt. 19, 58 L. R. A. 261, v. Fellowes, 5 Mass. 219; Combs'
52 Atl. 1053. Appeal, 105 Pa. St. 158: Brown
79. 1 Stimson's Am. St. Law, v. Pridgen, 56 Tex. 124.
§ 2644. 83. Brograve v. Winder, 2 Ves.
80. See Cureton v. Taylor, 89 Jr. 636; Gillis v. Gillis, 96 Ga.
Ga. 490, 15 S. E. 643; Poore v. 1, 30 L. R. A. 143, 51 Am. St.
Poore, 55 Kan. 687; Johnson v. Rep. 121, 23 S. E. 107; Fishpr
Delome Land & Planting Co., v. Spence, 150 111. 253, 41 Am.
77 Miss. 15, 26 So. 360; Simmons St. Rep. 360; Warren v. Baxter.
V. Leonard, 91 Tenn. 183, 30 Am. 48 Me. 193; Higgins v. Carltou..
St. Rep. 875. 28 Md. 115, 92 Am. Dec. 666;
81. 1 Stimson's Am. St. Law, Sears v. Dillingham. 12 Mass
§ 2646. 358; In re Holts' Will, 56 Minn.
82. Hudson v. Flood, 5 Del. 33. 45 Am. St. Rep. 434; Stewart
450, 94 Atl. 760; Gillis v. Gillis, v. Harriman, 56 N. H. 25, 22 Am.
96 Ga. 1, 30 L. R.. A. 143, 51 Rep. 408; Hoff v. State, 72 Tex.
Am. St. Rep. 121, 23 S. E. 107; 281. The statute so provides in
In re Noble's Will, 124 HI. 266, a number of states. 1 Stim-
15 N. E. 850; Clark's Appeal, son's Am. St. Law, § 2647.
114 Me. 105, 95 Atl. 517; Amory 84. Cheatham v. Hatcher, 30
1824 Eeal Property. [§ 470
The competency of an attesting witness is, as a
general rule, determined by the consideration whether
the witness is a person competent to testify in a court
of justice in regard to the will, and questions have fre-
quently arisen as to the competency of particular per-
sons at common law, and under modern statutory pro-
visions. At common law, a ' beneficiary under the will
was not a competent witness, because, by the rules pre-
vailing in courts of justice, one interested in litigation
could not testify therein.^^ Since this rule had the
effect of frequently invalidating a will merely because
a witness had a small interest thereunder, it was pro-
vided by statute that the testamentary provision in
favor of the witness should be void, and that he should
be regarded as a competent witness. ^'^ In this countrj^
there are statutes of a more or less similar character in
most of the states, it being usually declared, as in Eng-
land, that the devise or bequest to the witness shall be
void, but frequently with a provision giving such wit-
ness what he would have taken, in the absence of the
will, by descent or distribution, to the extent that this
does not exceed the devise or bequest.^^ A mere charge
upon land in favor of a witness for the payment of debts
due him will not, however, in most states, affect his
competency.^^ And the statute also, in effect, frequent-
ly provides that the witness shall not lose the benefit of
such a provision if there are enough witnesses without
him.^ In a few states a mtness to a will is no longer
regarded as disqualified by reason of his beneficial in-
terest thereunder, since the adoption of statutes allow-
ing even interested parties to testify in judicial pro-
Grat. (Va.) 56, 32 Am. Rep. and 1 Vict. c. 26, § 14.
650; Trustees of Theological Sem- 87. 1 Stimson's Am. St. Law,
inary of Auburn v. Calhoun, 25 §§ 2650, 2651.
N. Y. 422; Carlton v. Carlton, 88. 1 Stimson's Am. St. Law,
40 N. H. 14. § 2648.
85. 1 Jarman, Wills, 69; Hold- 89. 1 Stimson's Am. St. Law,
fast V. Dowsing, 2 Strange, 1253. § 2650; 1 Woerner, Administra-
86. 25 Geo. II. c. 6; 7 Wm. IV. tion, § 41.
§ 470]
Transfer by Will.
1825
ceedings.^" An executor named in the will is not usually
regarded as so interested, by reason of his right to com-
missions, as to be disqualified as a witness thereto.^ ^
In two or three states, however, a different view ob-
tains.^2
At common law, a husband or wife is incompetent
as a W'itness in regard to any matter in which the other
has a pecuniary interest,®^ and it has accordingly been
decided that the husband or wife of a devisee or a lega-
tee is not a competent witness to the will.^^ Modern
statutes, however, removmg the disability of the hus-
band and wife of a party in interest to testify, have in
some states been construed as removing the incom-
petency as an attesting witness to a will,^^ and the same
effect has in one state at least been given to a statute
90. See White v. Bower, 56
Colo. 575 136 Pac. 1053; Leitch
V. Leitch 114 Md. 336 79 Atl.
600; In re Wiese's Estate 98
Neb. 463, 153 N. W. 556, L. R. A.
1915E, 832.
91. Comstock v. Hadlyme Ec-
clesiastical Sec, 8 Conn. 254, 20
Am. Dec. 100; Meyer v. Fogg,
7 Fla. 292, 68 Am. Dec. 41;
Davenport v. Davenport, 116 La.
1009, 114 Am. St. Rep. 575, 41
So. 240; Wyman v. Symmes, 10
Allen (Mass.) 153; Sears v. Dil-
lingham, 12 Mass. 358; Geraghty
V. Kilroy, 103 Minn. 286, 114 N.
W. 838; Stewart v. Harriman, 56
N. H. 25, 22 Am. Rep. 408;
Children's Aid Soc. v. Loveridge,
70 N. Y. 387; Snyder v. Bull, 17
Pa. St. 54; Coalter v. Byan, 1
Gratt. (Va.) 18; Richardson v.
Richardson, 35 Vt. 298.
92. Tucker v. Tucker, 27 N.
C. 161, (as regards personal prop-
erty) ; Jones v. Grieser, 238 111.
183, 15 A. & E. Ann. Cas. 787 &
note, 87 N. E. 295. And the dis-
qualification has been held to ex-
tend to the wife of an executor.
Fearn v. Postlethwaite, 240 111.
626, 88 N. E. 1054; Huie v. Mc-
Connell, 47 N. C. 455.
93. See the discussion and
criticism of this rule in 1 Wig-
more, Evidence, § 600 et seq.
94. Windham v. Chetwynd, 1
Burrows, 414, 424; Sloan's Estate.
184 111. 579, 56 N. E. 952; Sul-
livan V. Sullivan, 106 Mass. 474;
Rucker v. Lambdin, 12 Smedes
& M. (Miss.) 230; Hodgman v.
Kittredge, 67 N. H. 254, 68 Am.
St. Rep. 66i, 32 Atl. 158; Gid-
dings V. Turgeon, 58 Vt. 106, 4
Atl. 711.
95. Hawkins v. Hawkins, 54
Iowa, 443, 6 N. W. 699; Iji re
Holt's Will, 56 Minn. 33, 22 L.
R. A. 481, 45 Am. St. Rep. 434.
57 N. W. 219; Lippincott v.
Wikoff, 54 N. J. Eq. 107, 33 Atl.
305.
1826 Real Pbopehty. [§ 471
modifying the common law doctrine of unity of interest
of husband and wife.^^
A statute invalidating a provision in favor of a
witness in order to render the witness competent has
occasionally been construed to apply to a provision in
favor of the husband of a witness.^ ^ Such a statute has
not, however, usually been given such a construction.^^
In a number of states a devise or legacy to the husband
or wife of a subscribing witness is expressly made void
by the statute.^^
§ 471. Attestation and subscription. The witnesses
as to the execution or publication of a will are required,
usually, not only to witness the performance of these
acts by testator, but also to sign their names upon the
instrument "in the presence of" testator, and sometimes
'4n the presence of" each other.^ The question of
what constitutes "presence," within this requirement,
has been the subject of numerous decisions, of a some-
what conflicting character.^ The testator and the wit-
nesses need not, it has been held, be in the same room,
in order to render the signatures of the latter "in the
presence of" the former, it being sufficient that he sees
them, as through a door or window;^ and though the
testator does not actually see the witnesses sign, this is
96. Gamble v. Butchee, 87 Tex. Rep. 360, 37 N. E. 314.
643, 30 S. W. 861. 99. 1 Stimson's Am. St. Law
97. Winslow v. Kimball, 25 § 2650.
Me. 493; Jackson v. Durland, 2 1. 1 Stimson's Am. St. Law,
Johns. Cas. (N. Y.) 314; Moore § 2644.
V. McWilliams, 3 Rich. Eq. (S. 2. The cases are collected in
C.) 10. note in 6 A. & E. Ann. Cas. at
98. White v. Bower, 56 Colo. p. 414. See also editorial ^.note,
575, 136 Pac. 1053; Fisher v. 14 Columbia Law Rev. 180.
Spence, 150 111. 253, 37 N. E. 314, 3. Shires v. Glascock, 2 Salk.
41 Am. St. Rep. 314; In re Holt's 688; Casson v. Dade, 1 Brown.
Will, 56 Minn. 33, 45 Am. St. Ch. 99; Ambre v. Weishaar, 74
Rep. 434, 22 L. R. A. 481; Hodg- 111. 109; Riggs v. Riggs, 135
man v. Kittredge, 67 N. H. 254, Mass. 238, 46 Am. Rep. 464; In
68 Am. St. Rep. 661; Giddings v. re Meurer, 44 Wis. 392 28 Am.
Turgeon, 58 Vt. 106, 41 Am. St. Rep. 591.
§ 471]
Transfer by Will.
1827
usually regarded as taking place in his presence, if he
is physically able, by shifting his gaze, to see the act
of signing, provided at least he can do this without pain
or danger to life.^ He must know what the witnesses are
doing,^ and the signing is not in his presence if he is in
such a state mentally as not to have such knowledge."
When the will is signed in the room in which testator
is, there is, it seems, a presumption that the requirement
is satisfied.''' The statutory requirement is not usually
regarded as satisfied by an acknowledgment by the
witness, in the testator's presence, of a signature pre-
viously affixed by him out of the testator's presence.^
The statute occasionally provides in express terms
that the witnesses shall attest the will at the request
of the testator, and even though the statute makes no
reference to a request, it has been held that there must
4. 1 Jarman, Wills, 89 et seq;
Bigelow, Wills, 55; Schouler,
Wills, §§ 340-342. See Gordon
V. Gilmer, 141 Ga. 347, 80 S. E.
1007; Drury v. Connell, 177 111.
43, 52 N. E. 368; Raymond v.
Wagner, 178 Mass. 315, 59 N. E.
811; Maynard v. Vinton, 59 Mich.
139; Watson v. Pipes, 32 Miss.
451; Jones v. ' Turk. 48 N. C.
202. Compare McKee v. McKee's
Ex'r, 155 Ky. 738, 160 S. W.
261; Cunningham v. Cunning-
ham, 80 Minn. 180, 81 Am. St.
Rep. 256, 51 L. R. A. 642; Healey
V. Bartlett, 73 N. H. 110, 6 A.
& E. Ann. Cas. 413.
5. 1 Jarman, Wills, 89; Orn-
dorff V. Hummer, 12 B. Men.
(Ky.) 619; Watson v. Pipes, 32
Miss. 451; Baldwin v. Baldwin,
81 Va. 405. But if testator is
blind, he may take cognizance
through his other senses of the
signing by a witness. Riggs v.
Rlggs, 135 Mass. 238, 46 Am. Rep.
464; In re Allred's Will, 170 N.
C. 153, 86 S. E. 1047; Ray v.
Hill, 3 Strobh. (S. C.) 297.
6. Right V. Price, 1 Doug.
(Mich.) 241; Chappel v. Trent,
90 Va. 849, 19 S. E. 314.
7. In re Howard, 51 B. Mon.
(Ky.) 199, 17 Am. Dec. 40;
Watson V. Pipes, 32 Miss. 451;
Stewart v. Stewart, 56 N. J.
Eq. 761, 57 N. J. Eq. 664; Neil
V. Neil, 1 Leigh. (Va.) 6; Bald-
win V. Baldwin, 81 Va. 405.
8. Calkins v. Calkins, 216 111.
458, 1 L. R. A. (N. S.) 393 and
note, 108 Am. St. Rep. 233; Men-
dell V. Dunbar, 169 Mass. 74
61 Am. St. Rep. 277; Den v.
Milton, 12 N. J. L. 70; Ragland
V. Huntingdon, 23 N. Car. 561;
Pawtucket v. Ballou, 15 R. I. 58,
2 Am. St. Rep. 868. But see
contra, Cook v. Winchester, 81
Mich. 581, 8 L. R. A. 822 and
note; Sturdivant v. Birchett, 10
Gratt. (Va.) 67, 11 Gratt. 220.
1828 Eeal Property. [§ 471
be a request.*^ But the request need not be in express
terms, ^'^ and it appears to be sufficient that the circum-
stances are such as to show that, in attesting the will,
the witnesses are acting in accordance with the testa-
tor's wish at the time,^^ as when the request is made
by a third person in the testator's presence and the
latter 's conduct indicates an acquiescence in such re-
quest.^- There is evidently no such assent on the part
of testator if he is not in a condition to know what is
being done.^^
An '^attestation clause," which consists of a recital,
signed by the witnesses, of a compliance with the
necessary requirements in execution of the will, should
always be appended to the will, since it furnishes
prima facie evidence of its due execution, and may
serve to refresh the memory of the witnesses as to the
circumstances of the execution. Such a clause is not
however, necessary to the validity of the will, the stat-
utes merely requiring the witnesses to sign their names
upon the document, or, in some states, upon the docu-
ment at the end or foot of the will itself. ^^
9. Gross V. Burneston, 91 Md. Savage v. Bowen, 103 Va. 540, 49
383, 46 Atl. 993; Burney v. Al- S. E. 668.
len, 125 N. C. 314, 74 Am. St. 12. HufE v. Huff, 41 Ga. 696;
Rep. 637; Savage v. Bowen, 103 Harp v. Parr, 168 HI. 459, 48
Va. 540, 49 S. E. 668; Skinner N. E. 113; Conway v. Vizzard,
v. American Bible Soc, 92 Wis. 122 Ind. 266, 23 N. E. 771; Iii re
209, 65 N. W. 1037. HuU's WiU, 117 Iowa, 738, 89
10. Rogers v. Diamond, 13 N. W. 979; Martin v. Bowdern,
Ark. 474; Schierbaum v. Schem- 158 Mo. 379, 59 S. W. 227;
me, 157 AIo. 1, 80 Am. St. Rep. Matter of Nelson, 141 N. Y. 152,
604; Coffin v. Coffin, 23 N. Y. 9, 36 N. E. 3; Burney v. Allen, 125
80 Am. Dec. 235; Savage v. N. Car. 314, 74 Am. St. Rep. 637,
Bowen, 103 Va. 540, 49 S. E. G68; 34 S. E. 500; In re Skinner, 40
Skinner v. American Bible Soc. Ore. 571. 63 Pac. 523, 67 Pac.
92 Wis. 209, 65 N. W. 1037. 951.
11. In re MuUin's Estate, 110 13. McMechen v. McMechen, 17
Gal. 252, 42 Pac. 645; Higgins v. W. Va. 683, 41 Am. Rep. 682.
Carlton, 28 Md. 115, 92 Am. Dec. 14. 1 Jarman, WiUs, (Bige-
666; Gross v. Burneston, 91 Md. low's Ed.), 123; Schouler, Wills,
383, 46 Atl. 993; In re Voorhis, § 346.
125 N. Y. 765, 26 N. E. 935;
<§§ 472, 473] Transfer BY Will. 1829
§ 472. HologTaphic and nuncupative wills. By
statute in a number of states, "holographic" wills, that
is, wills entirely written by testator himself, are valid,
• though not executed in accordance with the ordinary
statutory requirements, if signed by him, and if, in two
states at least, found among the valuable papers and
effects of deceased, or entrusted by him to another for
safe keeping.^^
"Noncui)ative" wills, that is, wills consisting of
merely oral declarations by testator in the presence of
witnesses, were allowed before the passage of the
Statute of Frauds, but by that statute the right to make
them was much restricted, the amount of property which
could be so disposed of being greatly limited, and it also
being provided that they could be made only in the last
sickness of deceased, before three witnesses, and usually
in his own habitation. In this country there are usually
statutory provisions of a somewhat similar character,
providing especially, however, for the making of such
wills by soldiers in actual military service, and by mari-
ners at sea. The law of nuncupative wills never applied
in England to real property, in the absence of a local
custom to the contrary, since, before the Statute of
Wills, such property could not be devised, and since, by
the terms of that statute, as well as by the Statute of
Frauds, a will of lands was required to be ' * in writing. ' '
The statutes on the subject in this country usually re-
strict such wills to personal property.^®
§ 473. Undue influence. The question whether a
certain testamentary disposition was the result of the
exercise of "undue influence" upon the testator is the
subject of frequent litigation. The courts have not
been very successful in defining what constitutes uiulue
15. 1 Stimson's Am. St. Law, 16. Bigelow, Wills, 03 et sci].;
§ 2645. See Page, Wills, §§ 229- Page, Wills, §§ 232-240; 1 Stim-
231; Schouler, Wilts (5th Ed.), son's Am. St. Law, §§ 2700-2705;
§"255. Schouler, Wills, § 359, et scq.
1830
Real Peopebty.
[§ 473
influence sufificient to defeat a testamentary provision,
but it is stated, in a general way, that it must be such
persuasion or importunity as to overpower the will of
the testator, without convincing his judgment,^'^ that is,
it involves a substitution of another person's will for
that of testator.^^ But the mere fact that one per-
suades the testator to make a will in his favor, or in-
duces him to do so by argument or flattery, does not,
of itself, show undue influence, ^^ and so ''appeals to the
affections or ties of kindred, to a sentiment of gratitude
for past services, or pity for future destitution, or the
like," are legitimate, and do not affect the validity of
the will.20
The question of undue influence is entirely distinct
from that of the mental capacity of the testator to make
a will, which will hereafter be considered i^i but the
fact that, though mentally capable of making a will, he
is wanting in physical and mental vigor, is usually an
17. Hall V. Hall, L. R. 1 Prob.
& Dlv. 481; Coghill v. Kennedy,
119 Ala. 641, 24 So. 459; In re
Clark's Estate, (Cal.), 149 Pac.
828; Wiley v. Gordan, 181 Ind.
252, 104 N. B. 500; Kennedy v.
Kennedy. 124 Md. 38, 91 Ail.
759; Gay v. GiUilan, 92 Mo. 250,
1 Am. St. Rep. 712; In re Tuni-
son's Will, (N. J.), 93 Atl. 1087;
In re Diggins' Estate, 76 Ore.
341, 149 Pac. 73; Herster v. Her-
ster 122 Pa. 239, 9 Am. St. Rep.
95; Scott V. Townsend, 106 Tex.
322, 166 S. W. 1138.
18. Wingrove v. Wingrove, 11
Prob. Div. 81; Phillips v. Gaither,
191 Ala. 87, 67 So. 1001; May-
nard v, Vinton, 59 Mich. 139,
60 Am. Rep. 276; Schmidt v.
Schmidt, 47 Minn. 451, 50 N.
W. 598; Riley v. Sherwood, 144
Mo. 354, 45 S. W. 1077; Wadding-
ton V. Buzby, 45 N. J. Eq. 173,
14 Am. St. Rep. 706; In re
Mueller's Will, 170 N. C. 28, 83
S. E. 719; Cook v. Bolduc, 24
Wyo. 281, 157 Pac. 580, 158 Pac.
266.
19. 1 Woerner, Administration,
§ 31; McDaniel, v. Crosby, 19
Ark. 533; Yoe v. McCord, 74 111.
S3; Bush v. Lisle, 89 Ky. 393,
12 S. W. 762; In re Mclntyre's
Estate, 193 Mich. 257, 159 N. W.
517; Hughes v. Murtha, 32 N.
J. Eq. 288; Trost v. Dingier,
118 Pa. St. 259, 4 Am. St. Rep.
593.
20. HaU V. Hall, L. R. 1 Prob.
& Div. 481; Bevelot v. Lestrade,
153 111. 625, 38 N. E. 1056; Gay
V. Gillilan, 92 Mo. 250, 1 Am.
St. Rep. 712; In re Mondorf's
Will, 110 N. Y. 450, 18 N. E. 256;
In re Craven's Will, 169 N. C.
561, 86 S. E. 587.
21. See post, § 595.
§ 474]
Transfer by Will.
1831
important consideration in determining the question of
undue influence.-^
The fact that a beneficiary under the will sustains
a confidential relation towards testator, such as that
of attorney or guardian, does not of itself, according
to some authorities, raise a presumption of undue in-
fluence sufficient to overthrow the will, though, under
such circumstances, much slighter evidence of improper
acts on the part of the beneficiary will be required than
ordinarily.^^ By some decisions, however, the mere
existence of the confidential relation raises a presump-
tion that the will is invalid.^^ That a beneficiary who is
not a near relative himself prejDared the instrument is
usually regarded as tending to show undue influence.-^
§ 474. Lapsed and void devises. As a consequence
of the "ambulatory" nature of a will, which prevents its
22. Griffith v, DifEenderffer, 50
Md. 466; Sullivan v. Foley, 112
Mich. 1, 70 N. W. 322; Shailer
V. Bumstead, 99 Mass. 112; Wad-
dington v. Buzby, 45 N. J. Eq.
173, 14 Am. St. Rep. 706, 16 AtL
690; Turner v. Butler, 253 Mo.
202, 161 S. W. 765.
23. Parfiitt v. Lawless, L. R.
2 Prob. & Div. 462; Bancroft v.
Otis, 91 Ala. 279, 24 Am. St. Rep.
904, 8 So. 286; Lockridge v.
Brown, 184 Ala. 106, 63 So. 524;
Carter v. Dixon, 69 Ga. 82; Pil-
strand v. Swedish Methodist
Church, 275 111. 46, 113 N. E. 958;
Denning v. Butcher, 91 Iowa,
425, 59 N. W. 69; In re Smith's
Will, 95 N. Y. 516; Bigelow,
Wills, 89.
24. Connor v. Stanley, 72 Cal.
556, 1 Am. St. Rep. 84; Kirby's
Appeal, 91 Conn. 40, 98 Atl. 349;
Meek v. Perry, 36 Miss. 190,
Wendling v. Bowden, 252 Mo.
647, 161 S. W. 774; Carroll
V. Hause, 48 N. J. . Eq. 269, 27
Am. St. Rep. 469; Miller v.
Miller, 187 Pa. 572, 41 Atl. 277;
Hartman v. Strickler, 82 Va.
225; 1 Woerner, Administration,
§ 32.
25. Barry v. Butlin, 1 Curt.
Ecc. 637; Coghill v. Kennedy, 119
Ala. 641, 24 So. 459; Richmond's
Appeal, 59 Conn. 226, 21 Am. St.
Rep. 85; Bush v. Delano, 113
Mich. 321. 71 N. W. 628; Yardley
V. Cuthbertson, 108 Pa. St. ;?95,
56 Am. Rep. 218; In re Barney's
Will, 70 Vt. 352, 40 Atl. 1027;
Montague v. Allan's Ex'r, 78 Va.
592, 49 Am. Rep. 384; Bigelow,
Wills 87, 89,
26. 1 Jarman, Wills, 307; 2
Woerner, Administration, § 434.
27. Page, Wills, § 740; Merrill
V. Hayden, 80 Me. 133, 29 Atl.
949; Crum v. Blis.s, 47 Conn..
592.
1832 Real Property. [§ 474
operation until the death of the testator, the death of a
devisee or legatee during the testator's lifetime will, in
the absence of a statute to the contrary, render the gift
absolutely void.^^ And so a devise or legacy to a cor-
poration may lapse or become void by the dissolution of
the corporation before testator's death.^" The testator
may, however, make a substitutionary gift of that partic-
ular property in case the other gift fails, owing to the
death of the beneficiary or for other reasons, and this
will be carried out by the courts.-* The fact that the
gift is in terms to one "and his heirs" does not, of it-
self, show any intention to make a substitutionary gift
to the heirs, since this is a word merely of limitation,
and not of purchase.-^ In some cases, however, the use
of the words "and heirs" has been construed as con-
stituting a substitutional gift to the heirs,^° and this is
the effect usually given to a provision for one "or his
heirs. "^^
In most of the states there is at the present day
a statutory provision naming a class of persons who
may take in case of the death of the beneficiary during
the lifetime of the testator. In many states it is pro-
vided that a devise or bequest to a child or other des-
cendant of the testator shall, in case of the death of
the devisee or legatee before the testator, pass to the
issue or occasionally the heirs of such devisee or lega-
28. 1 Jarman, Wills, 308; Mass. 382; Hand v. Marcy, 28
Page, Wills, § 741; Wilde v. Bell, N. J. Eq. 59.
86 Conn. 610, 87 Atl. 8; Gilmor's 30. Gilmor's Estate, 154 Pa.
Estate, 154 Pa. St. 523, 35 Am. St. St. 523, 35 Am. St. Rep. 855, 26
Rep. 855, 26 Atl. 614; Rivers v. Atl. 614; Gittings v. McDermott,
Rivers, 36 S. C. 302, 15 S. E. 2 Mylne & K. 69, 73; 2 Woerner,
137. See ante, § 26. Administration, § 434.
29. Gibbons v. Ward, 115 Ark. 31. 2 Woerner, Administra-
184, 171 S. W. 90; Maxwell v. tion, §§ 417, 434; Hand v. Marcy,
Featherston, 83 Ind. 339; In re 28 N. J. Eq. 59; O'Rourke v.
Wells, 113 N. Y. 396, 10 Am. St. Beard, 151 Mass. 9, 23 N. E.
Rep. 137; Kimball v. Story, 108 576. See Keniston v. Adams, 80
Me. 290, 14 Atl. 203.
§ 474] Transfer by Will. 1833
tee.^- In some, the same provision is made in favor
of the issue of any devisee or legatee who is a relation
of the testator, while, in others, the issue of any devisee
or legatee dying before the testator takes the gift, unless
a contrary intention appears.^^
In the case of a devise of land to two or more in-
dividuals, to take as tenants in common and not as
joint tenants,^* if one of them dies before testator, the
devise will, at common law, lapse as to his share, in the
absence of controlling language to the contrary, while
the other donee or donees will take the same interest
as if such death had not occurred.^^^ On the other
hand, in the case of a devise to members of a class,
such as children or nephews, if one who would other-
wise be a member of the class dies before the testator,
his share does not lapse, even at common law, but the
property is divided between the members of the class,
as ascertained at the time of testator's death, or at such
later date as may be indicated in the will.^*^ And even
32. 1 Stimson's Am. St. Law, 36. In re Warner's Appeal, 39
§ 2823(A). Conn. 253; Lancaster v. Lan-
33. 1 Stimson's Am. St. Law, caster, 187 lU. 540, 79 Am. St.
§ 2823(B), (C). See Page, Wills, Rep. 234, 58 N. E. 462; In re
§§ 742, 743; 2 Woerner, Admin- Nicholson's Will, 115 Iowa, 493,
istration, § 435. 91 Am. St. Rep. 175, 88 N. W.
34. If the gift is to them as 1064; Stetson v. Eastman, 84
joint tenants, those of them who Me. 366, 24 Atl. 868; Shots v.
survive the testator will take Poe, 47 Md. 513, 28 Am. Rep.
all. See ante, § 191. 485; Dove v. Johnson 141 Mass.
35. Bill V. Payne, 62 Conn. 287, 5 N. E. 520; In re Wood-
140, 25 Atl. 354; Magnuson v. ward's Estate, 84 Minn. 161,
Magnuson, 197 111. 496; Morse v. 86 N. W. 1004; Carter v. Long,
Hayden, 82 Me. 227, 19 Atl. 443; 181 Mo. 701, 81 S. W. 162; Camp-
Best V. Berry, 189 Mass. 510, bell v. Clark, 64 N. H. 328, 10
109 Am. St. Rep. 651; Moffett v. Atl. 702; Campbell v. Rawdon,
Elmendorff, 152 N. Y. 475. 57 Am. 18 N. Y. 412; Pimel v. Betjemann,
St. Rep. 529, 46 N. E. 845; 183 N. Y. 194, 2 L. R. A. (N. S.)
Twitty V. Martin, 90 N. C. 643; 580, 5 A. & E. Ann. Cas. 289;
Strong V. Ready, 9 Humphr. Robinson v. McDIarmId, 87 N.
(Tenn.) 168; In re Sharpless' C. 643.
Estate, 214 Pa. 335, 63 Atl. 884.
1834r Keal. Property. [§ 474
tliough tlie class is to be ascertained as of a date prior
to testator's death, if a member of the class, as-
certained as of that date, subsequently dies before the
testator, his share, it seems, does not lapse, but the
survivors take the whole.^'^ In the case of such a
gift to a class, the survivors take the whole, by reason
of a construction of the language used in the will as
indicating an intention that the beneficiaries of the
devise shall be those members of the class who survive
the testator, and it is accordingly somewhat difficult to
see the applicability to such a case of a statute intended
to prevent lapse. It has accordingly been decided, in
several states, that the statutory provisions above re-
ferred to, enabling the issue of a deceased devisee or
legatee to take in the latter 's place, do not apply to a
devise or legacy to a class,^^ but in a greater number
these statutes have been held to apply to such a case,
in the absence of a showing of a diiferent intention,
with the result that the share which w^ould have gone to
the deceased member of the class passes to his issue."'^
These decisions appear ordinarily to be based on a
presumption that the testator, in drafting the will, had
in mind the statute in question and intended by the
naming of a class, to include issue of a deceased mem-
ber thereof. It is also to be observed that in the states
in which this view has been adopted, the statute ordi-
37. See 1 Jarman, Wills 312. 415, 29 N. E. 631; Strong v.
38. Davie v. Wynn, 80 Ga. Smith, 84 Mich. 567, 48 N. W.
673, 6 S. E. 183; Craycroft v. 183; Jamison's Executors v. Hay,
Craycroft, 6 Harr. & J. (Md.) 54; 46 Mo. 546; Wooley v. Paxson,
Trenton Trust & Safe Deposit 46 Ohio St. 307; In re Bradley's
Co. V. Sibbitts, 62 N. J. Eq. 131, Estate, 166 Pa. 300, 31 Atl. 96;
49 Atl. 530; Olney v. Bates, 3 Moore v. Dimond, 5 R. I. 121;
Drew, 319. Missionary Society v. Pell, 14 R.
39. Rudolph V. Rudolph, 207 I. 456; Jones v. Hunt, 96 Tenn.
HI. 266, 99 Am. St. Rep. 211; 369.
In re Nicholson, 115 Iowa, 493, 40. Billingsley v. Tongue, 9
91 Am. St. Rep. 175; Moses v. Md. 575; Twitty v. Martin, 90 N.
Allen, 81 Me. 268, 17 Atl. 66; C. 643; Moss v. Helsley, 60 Tex.
Moore v. Weaver, 16 Gray (Mass.) 426.
305; Howland v. Slade, 155 Mass.
§ 474] Transfer by Will. 1835
narily does not provide that no lapse shall result by
reason of the death of a devise or legatee, nor refer to
the matter of lapse, but merely declares that in
case of such death, the issue of the deceased devisee or
legatee shall take in his place.
A devise or legacy to one who is dead at the time
of the execution of the will is absolutely void,^^ except
in so far as the rule in this regard may have been
changed by statute. Such a devise or legacy is some-
times referred to as lapsing,*^ but the expression
''lapse" would seem to be more properly confined to
the case of a devise or legacy which fails by reason
of some occurrence subsequent to the execution of
the will. Statutes which provide who shall take
in case the devisee or legatee dies before the testa-
tor have more usually been applied regardless of
whether such death occurred before or after the execu-
tion of the will,^^ though occasionally a ditferent con-
struction has been adopted.*'^ In the case of a devise
to a class of persons, the question is, not of the con-
struction of the statute, but rather of the construction
of the language of the testator as showing his intention^
and the adoption of a statute obviating the failure of a
devise by reason of the death of the devisee is no reason
for assuming that the testator meant to include within
the class named the issue or heirs of a person who, had
he been living would have been a member of the class,
but who died before the execution of the will. This view
41. Baybank v. Brooks, 1 Bro. N. Y. 194, 2 L. R. A. (N. S.)
Ch. 84; Dildiue v. Dildine, 32 580, 5 Ann. Cas. 239; Mintner's
N. J. Eq. 78. Appeal, 40 Pa. St. 11; Wildberger
42. Cheney v. Selman, 71 Ga. v. Cheek's Ex'rs, 94 Va. 517, 27
384; Chenault v. Chenault, 10 Ky. S. E. 441.
L. Rep. 840, 9 S. W. 775, 88 Ky. 43. BiUingsley v. Tongue, 9
83; Nutter v. Vickery, 64 Me. Md. 575; Lindsay v. Pleasants, 39
490; Bray v. Pullen, 84 Me. 185, N. C. 320; Alniy v. Jones, 17 R.
24 Atl. 811; Guitar v. Gordon, 17 I. 265, 12 L. R. A. 414; Suber v.
Mo. 408; Jamison v. Hay, 46 Nash. 84 S. C. 12, 65 S. E. 947;
Mo. 546; Pimel v. Betjemann, 183
1836 Eeal Peoperty. [§ 474
has been adopted in the majority of the jurisdictions in
which the question has arisen, including some in which
the applicability of the statute to the case of an in-
dividual donee who is dead at the time of the execution
of the will is fully recognized.^^
Effect of residuary clause. One result of the
theory that a devise of land was a present conveyance of
the land, and of the rule that a will did not pass after-
acquired land,*^^ was that a residuary devise of land,
however general in its terms, was in its nature specific,
as operating only on such land as the testator owned
at the time of executing the will and did not devise to
another person, and was equivalent to a devise of such
land by name or specific description. Consequently,
although a devisee of specific land in the will died before
testator, causing a ''lapse" of the devise, the land
could not pass under the residuary devise, but descended
to the heir,^^ A ditferent view has, in one or two cases,
been taken as to a devise which was originally void,
as distinguished from one which lapsed, it being held
that the property included therein would pass under a
residuary clause, on the theory that the devise being a
nullity from the beginning, the property must be re-
garded as part of the residuum.*®
44. Davie V. Wynn, 80 Ga. 673, 1 Jarman, Wills 609; Johnson v.
6 S. E. 183; In <re Nicholson, 115 Hollfield, 82 Ala. 123, 2 So. 753;
Iowa, 493, 91 Am. St. Rep. 175, Deford v. Deford, 36 Md. 168;
88 N. W. 1064; Howiand v. Prescott v. Prescott, 7 Mete.
Slade, 155 Mass. 415, 29 N. E. (Mass.) 141; Kip v. Van Cort-
631; Pimel v. Betjemann, 183 N. laud, 7 HiU (N. Y.) 34G; Holton
Y. 194, 2 L. R. A. (N. S.) 580, v. Jones, 133 N. C. 399; Wil-
5 Ann. Cas. 239; In re Harrison, Hams v. Neff, 52 Pa. St. 326;
202 Pa. St. 331, 51 Atl. 976. Stonestreet v. Doyle, 75 Va. 356,
Contra, Nutter v. Vickery, 64 Me. 40 Am. Rep. 731.
490; Moses v. Allen, 81 Me. 268, 46. Doe, Lessee of Stewart, v.
17 Atl. 66; Guitar v. Gordon, 17 Sheffield, 13 East, 526, 534; Doe
Mo. 408; Jameson v. Hays, 46 d. Ferguson v. Roe, 1 Har. (Del.)
Mo. 546. 524, 528. That no such distinc-
44a. Ante, § 466, note 6. tion between void and lapsed de-
45. Williams, Real Prop, 251, vises exists, see 1 Jarman, Wills,
<§ 475] Transfer by Will. 1837
The rule that a residuary devise will not operate
upon land included in a devise which has lapsed or has
otherwise failed has heen changed in England by the
provision of the Wills Act that, unless a contrary inten-
tion ajjpears from the will, real estate comprised in any
void or lapsed devise shall be included in the residuary
devise.^ ^ There is a substantially similar jirovision in
a number of states in this country/^ The operation of
such a statute is, however, much restricted by the stat-
utes previously referred to, naming persons to take in
case of the death of the devisee named.
Even in the absence of a statute expressly making
the residuary devise operative upon land included in a
lapsed devise, the courts of a number of states have
held that, since the passage of the statutes making a
will j)ass after-acquired realty, the reason for treating
the residuary devise as a specific provision no longer
exists, and that consequently it covers all land included
in a devise which has lapsed or become void.^'* In some
states, however, a diiferent view has been taken, it
being held that such a statute as to after-acquired prop-
erty does not cause land included in a lapsed devise to
pass under the residuary clause. ^^
§ 475. The revocation of a will. xV will remains
subject to revocation by the testator at any time. Such
revocation may be effected either by cancellation or
610, note; Lingan v. Carroll, 3 Wellington, 9 Allen (Mass.) 283,
Har. & McH. (Md.) 333, 338; 296; Molineaux v. Raynolds, 55
Deford v. Deford, 36 Md. 168, N. J. Eq. 187, 36 Atl. 276; Cruik-
179. shank v. Home for Friendless,
47. 7 Wm. IV. and 1 Vict. c. 113 N. Y. 337, 4 L. R. A. 140, 21
26, § 25; 2 Woerner, Administra- N. E. 64; Albany Hospital v.
tion, § 438. Hanson, 214 N. Y. 435, 108 N.
48. 1 Stirason's Am. St. Law, E. 812.
§ 2822. 50. Massey's Appeal, 88 Pa. St.
49. In re Upham's Estate, 127 470; Rizer v. Perry, 58 Md. 112.
Cal. 90, 59 Pac. 315; Drew v. See 2 Woerner, Administration, §
Wakefield, 54 Me. 291; Thayer v. 438.
2 R. P.— 41
1838 Eeal Peoperty. [§ 475
destruction of the will, or by the execution of another
testamentary instrument, expressly revoking the for-
mer will or making an inconsistent disposition of the
property. The Statute of Frauds provides that no
devise in writing of lands, tenements, or hereditaments,
or any clause thereof, shall be revocable otherwise than
by some will or codicil in writing, or other writing de-
claring the same, signed in the presence of three or four
witnesses, or by burning, canceling, tearing, or oblitera-
ting the previous will,"*^ In this country the statutory
provisions are usually of a substantially similar charac-
ter.^2
By cancellation or destruction of the instru-
ment. In order that a will be revoked by cancellation
or destruction, it is necessary that the act be done with
the intention of revoking the will, animo- revocandi, as
it is expressed.^^ Consequently, the destruction of the
will by accident,^* or by mistake,^^ as when the testator
wrongly believes it to be invalid,^'' or during the in-
sanity of the testator,^'^ does not revoke it. On the
other hand, the mere intention to revoke is insufficient
unless accompanied by some act constituting a legal
51. 29 Car. II, c. 3, § 6. See relative revocation, post, this sec-
Swinton v. Bailey, 4 App. Cas. tion, notes 70-73.
70. 56. Giles v. Warren, L. R. 2
52. 1 Stimson's Am. St. Law, Prob. & Div. 401.
§§ 2672, 2673. 57. Rich v. Gilkey, 73 Me. 595;
53. 1 Jarman, Wills, 118; 1 Brunt v. Brunt, L. R. 3 Prob. &
Woerner, Administration, § 48. Div. 37; Lang's Estate, 65 Cal.
The statute frequently contains 19; Sprigge v. Sprigge, L. R. 1
a provision to this effect. 1 Stim- Prob. & Div. 608; Forbing v.
son's Am. St. Law, § 2672(C). Weber, 99 Ind. 588; Delafield v.
54. Burtenshaw v. Gilbert, Parish, 25 N. Y. 9. In Billington
Cowp. 52; Burns v. Burns, 4 Serg. v. Jones, 108 Tenn. 234, 91 Am.
& R. (Pa.) 295. See Lord's Es- St. Rep. 751, 56 L. R. A. 654,
tate, 106 Me. 51, 75 Atl. 286. it was held that, in the absence
55. Strong's Appeal, 79 Conn. of a statute fixing the mode of
123, 6 L. R. A. (N. S.) 1107; revocation, the writing in pencil,
Semmes v. Semmes, 7 H. & J. below the signature, of a state-
(Md.) 388. See, as to dependent ment that the will was null and
void, was sufficient.
§ 475] Teansfee by Will. lg;^9
revocation,^^ and it is immaterial that the testator
wrongly supposes that the will has been destroyed as
directed by him.^*^
The act of destruction, whether by burning, tearing,
or other means, must, to constitute a revocation, be car-
ried through to its end, and consequently, if the testator
desists from his purpose after having partly torn or
destroyed the instrument, there is no revocation, pro-
vided he would have made the act more complete had he
i]ot changed his mind.^'^ A partial destruction is
sufficient, however, if the testator supposed that the
act was carried far enough for the purpose, and the
preservation of the will in its mutilated condition by a
third person will not affect the validity of the revoca-
tion.^^
In a considerable number of states it is provided
that the cancellation or destruction of the will which
effects its revocation may be the act of a third person
as well as of the testator himself, provided, ordinarily,
this is by the testator's direction and in his presence,
and in some states the fact of destruction with the
testator's consent must be proven by at least two wit-
nesses.
The cancellation or destruction, animo revocandi,
of any essential part of the will, has the effect, unless
the statute otherwise provides,"^ of revoking the will, as
58. Mundy v. Mundy, 15 N. J. C. 139, 51 Am. Dec. 204; Clingau
Eq. 290; Hoitt v. Hoitt, 63 N. H. v. Micheltree, 31 Pa. Si. 25.
475; Kent v. Mahaffey, 10 Ohio 60. Doe d. Perkes v. Perkes, 3
St. 204; Delafield v. Parish, 25 Barn. & Aid. 489; Elms v. Elms, 1
N. Y. 9. So in Doe d. Reed v. Swab. & Tr. 155.
Harris, 6 Add. & E. 209, it was 61. Hibb v. Thomas. 2 W. U\.
decided that throwing the will 1043; Sweet v. Sweet, 1 Re6L
on the fire, if it was snatched off Surr. (N. Y.) 451; White v.
by another person before more Casten, 46 N. C. 197, 59 Am. Dec.
than the envelope was singed, did 585; Lawyer v. Smith, 8 Mich,
not constitute a revocation. 411.
59. Trice v. Shipton, 113 Ky. 62. Gay v. Cay, 60 Iowa, 415,
102, 101 Am. St. Rep. 351, 67 S. 46 Am. Rep. 78.
W. 377: TTise v. Fincher, 32 N.
1840
Eeal Peopekty.
[§ 475
when the signature is scratched or erased,^^ or so much
of the paper as contains the signature is torn off,^*
or the seal is destroyed.''^
In some jurisdictions the statute expressly author-
izes the revocation of a particular clause of the will
by cancellation or obliteration, without affecting the
balance of the will. Whether, in the absence of an
express recognition in the statute of such a right of
partial revocation, the statute should be regarded as
authorizing it, is a question as to which the statutes
have been differently construed.^^ But even though a
right of partial revocation by cancellation or oblitera-
tion is recognized, this does not involve a right, by can-
celling or obliterating some of the words of a will, to
make a new and different testamentary disposition, this
63. Olmstead's Estate, 122 Cal.
224, 54 Pac. 745; WoodfiU v. Pat-
ton, 76 Ind. 575, 40 Am. Rep.
269; Townshend v. Howard, 86
Me. 285, 29 Atl. 1077; Semmes v.
Semmes, 7 Har. & J. (Md.) 388;
In re White's Will, 25 N. J. Eq.
501; Evans' Appeal, 58 Pa. St.
238.
64. Bell V. Fothergill, L. R.
2 Prob. & Div. 148; Sanders'
Adm'r v. Babbitt, 106 Ky. 646, 51
S. W. 163; Whitehead v. Kirk,
104 Miss. 776, 51 L. R. A. (N. S.)
187, Ann. Cas. 1916A, 1051, 61
So. 737, 62 So. 432; Smock v.
Smock, 11 N. J. Eq. 156; Cutler
V. Cutler, 130 N. C. 1, 57 L. R. A.
209, 89 Am. St. Rep. 854, 40 S. E.
689; That the signature was torn
"through" has been regarded as
creating a presumption of revo-
cation. In re Wellborn's Will,
165 N. C. 636, 81 S. E. 1023.
65. This is so, even though
the seal is not necessary to the
validity of the will. Price v.
Powell, 3 Hurl. & N. 341; Avery
V. Pixley, 4 Mass. 460. See In re
White's Will, 25 N. J. Eq. 501.
66. That such a partial revoca-
tion may be effected, see Miles'
Appeal, 68 Conn. 237, 36 L. R. A.
176; Brown's Will, 1 B. Mon.
(Ky.) 56; Townshend v. Howard,
86 Me. 285, 29 Atl. 1077; Safe
Deposit & Trust Co. v. Thorn.
117 Md. 154, 83 Atl. 45; Bigelow
V. Gillott, 123 Mass. 102, 25 Am.
Rep. 32; Michigan Trust Co. v.
Fox, 192 Mich. 699, 159 N. W.
332; Re Kirkpatrick, 22 N. J. Eq.
463; Barfield v. Carr, 169 N. C.
574, 86 S. E. 498; In re Wood's
Estate, 247 Pa. 377, 93 Atl. 483;
Brown v. Brown, 91 S. C. 101, 74
S. E. 135. That it cannot, see
Law V. Law, 83 Ala. 432, 3 So.
752; Lovell v. Quitman, 88 N.
y. 377, 42 Am. Rep. 254; Giffin
V. Brooks, 48 Ohio St. 211, 31
N. E. 734; Hartz v. Sobel, 136 Ga.
565, 71 S. E. 995.
§ 475] Transfer by Will. 1841
involving, not the mere revocation of a will, but the
making of a will.*^^
In case the will of a decedent, which he is known
to have made, and of which he retained the custody, can-
not be found, it is presumed to have been destroyed by
him with the intention of revoking it.^^ This pre-
sumption may, however, be rebutted by evidence to the
contrary, as when it is shown that there was no change
in the testator's desire to benefit the persons named in
the will, or circumstances appear calculated to raise
a suspicion that the will was wrongfully destroyed by
a person other than testator.^^
Dependent relative revooation. ''Where the
act of destruction is connected with the making of an-
other will, so as fairly to raise the inference that the
testator meant the revocation of the old to depend
upon the efficacy of the new disposition intended to be
substituted, such will be the legal eifect of the transac-
tion ; and therefore, if the will intended to be substituted
is inoperative from defect of attestation or any other
cause, the revocation fails also, and the original will
remains in force.""'' This principle of "dependent
relative" revocation, as it is termed, has been applied in
the case of the cancellation of clauses in tlie will by
67. Miles' Appeal, 68 Conn. 237, N. C. 135, 3 S. E. 719; Jackson
36 L. R. A. 176, 36 Atl. 39; v. Hewlett, 114 Va. 573, 77 S.
Eschbach v. Collins, 61 Md. 478; E. 518; Harris v. Harris, 10
Gardner v. Gardiner, 65 N. H. Wash. 555; See note 28 Am. St.
230, 8 L. R. A. 383, 19 Atl. 651. Rep. at p. 347; Schouler, Wills,
68. Griffith v. Higinbotom, 262 § 402.
111. 126, 104 N. E. 233; Idley v. 70. 1 Jarman, Wills, 119; See,
Bowen, 11 Wend. (N. Y.) 227; also, 1 Williams, Executors (9th
Knapp V. Knapp, 10 N. Y. 276; Ed.) 126 et scq.; Onions v. Tyrer,
Foster's Appeal, 87 Pa. St. 67; 2 Vern. 742; Mclntyre v. Mcln-
Harris v. Harris, 10 Wash. 555; tyre, 120 Ga. 67. 102 Am. St. Rep.
In re Valentine's Will, 93 Wis. 71, 1 A. & E. Ann. Cas. 606;
46, 67 N. W. 12.. Thompson's Appeal, 114 Me. 338,
69. Patten v. Poulton, 1 Swab. 96 Atl. 238; and article by Ar-
& Tr. 55; Schiiltz v. Schultz, 35 mislead M. Uobie, Esf|. 2 Virginia
N. Y. 653; Scoggins v. Turner, 98 Law Rev. 327.
1842 Keal Peoperty. . [§ ^''^
testator with the intention of substituting other clauses,
but without re-executing the will after making such al-
terations, and the cancellation has been held to be
nugatory as a revocation.'^ ^ The same doctrine was
held to apply when the testator destroyed a will under
the mistaken impression that a i3revious will would
be thereby validated, and with the intention of setting
up such former disposition^^ The fact, however, that
the act of destruction is accompanied by an intention to
make another will in the future cannot prevent such act
from operating as a revocation."^^
Subsequent will. As stated above, a will can
ordinarily, by force of the statute, be revoked by a sul>
sequent writing only when such writing is executed as a
will.'^^ Such revocation may result either from the
language of the later instrument revoking the earlier
will, or the later will may make a disposition of testa-
tor's property, or part thereof, inconsistent with the
earlier disposition."^^ If the second will neither in terms
71. Winsor v. Pratt, 2 Brod. & words written upon another part
B. 650; Wolf v. Bollinger, G2 111. of the paper, to the effect that
368; Doane v. Hadlock, 42 Me. the will is ^evoked or. "cancell-
72; Wilbourn v. Shell, 59 Miss, ed," though signed by the testa-
205; Gardner v. Gardiner, 65 N. tor, do not revoke the will,
H. 230, 8 L. R. A. 383, 19 Atl. unless witnessed as required in
651; In re Penniman's Will, 20 the case of a will. Howard v.
Minn. 245 (Gil. 220), 18 Am. Rep. Hunter, 115 Ga. 357, 90 Am. St.
368. Rep. 121, 41 S. E. 638; Matter of
72. Powell V. Powell, L. R. 1 Akers, 74 N. Y. App. Div. 461,
Prob. & Div. 209. 77 N. Y. Supp. 643, 173 N. Y. 620,
73. Olmstead's Estate, 122 Cal. 06 N. E. HOP.; Lewis v. Lewis, 2
224, 54 Pac. 745; Mclntyre v. Watts & S. (Pa.) 455; Ladd's
Mclntyre, 120 Ga. 67, 102 Am. St. Will, 60 Wis. 187; Matter of Gos-
Rep. 71, 1 A. & E. Ann. Cas. ling, 11 Prob. & Div. 79. But see
606; Townsheni v. Howard, 86 Evans' Appeal, 58 Pa. St. 238;
Me. 285, 29 Atl. 1077; Semmes v. Billington v. Jones, 108 Tenn. 234,
Semmes, 7 Har. & J. (Md.) 388; 56 L. R. A. 654, 91 Am. St. Rep.
Brown v. Thorndike, 15 Pick. 751; Warner v. Warner, 37 Vt.
(Mass.) 388; Banks v. Banks, 65 356.
Mo. 432. 75. 1 Jarman, Wills, 139; Bige-
74. 1 Stimson's Am. St. Law, § low, Wills. 136.
2673. So it has been held that
§ 475]
Tkansfee by Will.
184J
revokes the previous will nor is inconsistent therewith,
then both are in force, the later being- in effect a codicil
to the former instrument,'^« and, if the later will is only
partially inconsistent with the earlier will, the latter
remains in force in other respects.'^ The subsequent
will may contain no provision other than that revokin.x^
the earlier will,'^ and it has the effect of revocation if
it so provides, although the attempted disposition there-
in of the testator's property is for some reason invalid.'^^
The contents of a lost will may be shown for the
purpose of establishing the revocation of a previous
will.^^ But the mere fact of the execution of a later
will without evidence as to its contents, is not sufficient
to show a revocation.^^
A revocation by a will or codicil of a previous dis-
position of property is invalid if expressly made upon
an assumption of fact which turns out to be mistaken.^^
But the fact that the revocation was the result of mis-
76. 1 Jarman, Wills, 139; In
re Dunabaugh, 130 Iowa, 692, 107
• N. W. 925; Deppen's Trustee v.
Deppen, 132 Ky. 755, 117 S. W.
352; Lane v. Hill, 68 N. H. 275,
73 Am. St. Rep. 591, 44 Atl. 393;
Smith V. McChesney, 15 N. J. Eq.
359; Wetmore v. Parker, 52 N.
Y. 450; In re Venable's Will, 127
N. C. 344, 37 S. E. 465; Gordon
V. Whitlock, 92 Va. 723, 24 S. E.
342.
77. Freeman v. Freeman, 5 De
Gex. M. & G. 704; Lemage v.
Goodban, L. R. 1 Prob. & Div.
57; Kelly v. Richardson, 100 Ala.
584, 13 So. 785; In re DeLavea-
ga's Estate, 119 Cal. 651; Wil-
liams V. Miles, 68 Neb. 463, 110
Am. St. Rep. 431, 62 L. R. A.
383, 4 A. & E. Am. Caa. 306;
Wetmore v. Parker, 52 N. Y. 450;
Price V. Maxwell, 28 Pa. St. 23.
78. Barksdale v. Hopkins, 23
Ga. 332; Bayley v. Bailey, 5
Gush. (Mass.) 245.
79. Ex parte Ilchester, 7 Ves.
348, 373; Burns v. Travis, 117
Ind. 44, 18 N. E. 45; Dudley v.
Gates, 124 Mich. 440, 83 N. W.
97, 86 N. W. 959; In re Scott, 88
Minn. 386, 93 N. W. 109: Hairston
V. Hairston, 30 Miss. 276; Morey
V. Sohier, 63 N. H. 507. 56 Am.
Rep. 538, 3 Atl. 636; In re Mel-
ville's Estate. 245 Pa. 318, 91 Atl.
679.
80. Caeman v. Van Harke, 33
Kan. 333, 6 Pac. 620; Wallis v.
Wallis, 114 Mass. 510.
81. Hitchins v. Basset. 2 Salk.
592; Kern v. Kern, 154 Ind. 29,
55 N. E. 1004; In re Sternberg's
Estate, 94 Iowa, 305. 62 N. W.
734; Williams v. Miles. 68 Neb.
463. 94 N. W. 705. 96 N. W. 151;
Lane v. Hill. 68 N. II. 275, 73 Am.
St. Rep. 591,
1844 Real Property. [§ 475
take cannot be shown by evidence extrinsic to the
will,^^ and it has been held that even a mistake apparent
in the will does not defeat the revocation if it is not
based on information received from others, but the
matter is within the personal knowledge of testator.'^^ A
revocation, moreover, which is stated to be based upon
certain advice given testator, has been supported, though
the advice was mistaken, since it was the advice on which
testator acted, and as to his receipt of the advice there
was no mistake.*'^
Marriage and birth of issue. The common
law rule was that the will of a man is not revoked by
his marriage alone, ^^ and this rule still controls in
some states. In others the statutes changing the com-
mon-law rights of a married woman as regards her in-
terest in her husband's estate on his death without issue
have been regarded as changing the rule, so as to give to
his marriage the effect of revoking his will,^''^"** and oc-
casionally there is a statutory provision expressly to
that effect.89
82. CampbeU v. French, 3 Ves. bell's Ex'r, 19 Grat. (Va.) 758.
321, where the revocation of a 86. 1 Jarman, Wills, 111.
provision in favor of certain per- 87-88. Brown v. Scherrer, 5
sons, "they being all dead," was Colo. App. 255, 21 Colo. 481; Mor-
held to be inoperative, they being gan v. Ireland, 1 Idaho, 786;
alive. See also Doe d. Evans, 10 Tyler v. Tyler, 19 111. 151; Ameri-
Adol. & El. 228; Mordecai v. can Board of Com'rs for Foreign
Boylan, 59 N. C. 365; and a sug- Missions v. Nelson, 72 111. 564;
gestive editorial note in 22 Harv. In re Teopfer, 12 N. Mex. 372, 67
Law Rev. at p. 374. L. R. A. 315. Contra, Goodsell's
83. Dunham v. Averill, 45 Appeal, 55 Conn. 171, 10 Atl. 557;
Conn. 61, 29 Am. Rep. 642; Hayes Hulett v. Carey, 66 Minn. 327, 34
V. Hayes, 45 N. J. Eg. 461, 17 L. R. A. 384, 61 Am. St. Rep. 419;
Atl. 634; Gifford v. Dyer, 2 R. Hoitt v. Hoitt, 63 N. H. 475, 56
L 99; Skipwith v. Cabell's Ex'r, Am. Rep. 530, 3 Atl. 604.
19 Gratt. (Va.) 758. 89. See In re Anderson's Es-
84. Mendinhall's Appeal, 124 tate, 14 Ariz. 502, 131 Pac. 975;
Pa. St. 387, 10 Am. St. Rep. 590. In re Cutting's Estate, 172 Cal.
85. Attorney General v. Lloyd, 191, Ann. Cas. 1917D, 1171, 155
1 Ves. Sr. 32; Newton v. Newton, Pac. 1002; In re Roton's Will, 95
12 Ir. Ch. 118; Skipwith v. Ca- S. C. 118, 78 S. E. 711; Koontz v.
§ 475] Tkansfee by Will. 1845
At coniinoii law, the marriage of a woman revokes
her will, for the reason, it is said, that, since the mar-
riage destroys her right to make or revoke a will, if
marriage did not in itself cause a revocation, the will
would stand as a permanent disposition of her prop-
gP^y 90 rpj^-g ^.^^|g -g ^ positive rule of law, and evidence
is not admissible to show a contrary intention on the
part of testatrix.*^ ^ In several states it has been held
that this rule does not apply when the common-law re-
striction upon the right of a married woman to make
a will no longer exists.^^ An express statutory provision
in accordance with the common-law rule has, however,
been held not to be impliedly repealed by a statute giv-
ing testamentary capacity to married women f^ and the
common-law rule has been regarded as confirmed by a
provision, in the statute regarding the revocation of
wills, that nothing therein contained shall prevent the
revocation implied by law from subsequent changes in
the condition or circumstances of the testator.^*
By the common-law rule, generally recognized as in
force in this country, in the absence of a statutory
change, the marriage of a man, if followed by the birth
of a child, revokes his will previously made/'^ This rule
Koontz, 83 Wash. 180, 145 Pac. 173, 54 Am. Rep. 329; Kelly v.
201. Stevenson, 85 Minn. 247, 56 L. R.
90. 1 .Tarman, Wills, 110; A. 754, 89 Am. St. Rep. 545:
Hodsden v. Lloyd, 2 Brown Ch. Fellows v. Allen, 60 N. H. 439, 49
534; Garrett v. Dabney, 27 Miss. Am. Rep. 329; Webb v. Jones,
335. So by statute in a number 36 N. J. Eq. 163; Morton v. Onion,
of states. 1 Stimson's Am. St. 45 Vt. 145; In re Lyons, 96 Wis.
Law, § 2676(A). 339, 65 Am. St. Rep. 52; Contra.
91. Nutt V. Norton, 142 Mass. Swan v. Hammond, 138 Mass. 45.
242, 7 N. E. 720; Hoitt v. Hoitt, 93. Brown v. Clark. 77 N. Y.
63 N. H. 475, 56 Am. Rep. 530, 3 369; In re Kaufman's Will, 131
Atl. 604. N. Y. 620.
92. In ire Tuller's Will, 79 111. 94. Shorten v. .ludd, 60 Kan.
99, 22 Am. Rep. 164; In re Emery, 73, 57 Pac. 938; Swan v. Ham-
81 Me. 275, 17 Atl. 68; Roane v. mond, 138 Mass. 45; In re Booth's
Hollingshead, 76 Md. ;!69, 35 Am. Will, 40 Ore. 154, 61 Pac. Ii;t5. 66
St. Rep. 438, 17 L. R. A. 592; Pac. 710.
Noyes v. Southworth, 55 Mich. 95. 1 Jarman, Wills, 110;
1846 Eeal Peoperty. [§ 475
is based, it is said, upon a tacit condition, annexed to
the will, that, in case of snch a total change in testator's
circumstances, the will shall be void,''''' and consequently
evidence of a contrary intention on the part of the testa-
tor is, by the weightiest decisions, not admissible.'*'^
The rule that marriage and birth of issue revokes the
will does not, however, apply if the future wife and the
issue of the marriage are provided for by the will,''^ and
occasionally, by statute, a provision for the issue alone
is sufficient to prevent its application.'*''
The birth of a child does not, apart from statute,
affect a man's previous disposition of his property by
will.i
There are in most of the s rates express statutory
provisions as to the effect of marriage or birth of issue
in revoking a will. In some states a will is revoked by
marriage and birth of issue, unless provision for such
issue is made in the w^ill or by settlement, or they are in
such way mentioned in the will as to show an intention
not to provide for them. In several states the marriage
alone of the testator revokes the will, subject, in some
Christopher v. Christopher, 2 v. Hoitt, 63 N. H. 475, 56 Am.
Dickens, 445. Rep. 530, 3 Atl. 604. Contra,
In New Hampshire it lias been Wheeler v. Wheeler, 1 R. I. 364.
held that the marriage and birth 98. Kenebel v. Scrafton, 2
of Issue no longer effect a revo- East, 530; Marston v. Roe, 8
cation, in view of the statute Adol. & E. 14; Warner v. Beach,
which gives to a widow and child 4 Gray (Mass.) 162; Baldwin v.
not provided for in the will the Spriggs, 65 Md. 373, 5 Atl. 295.
same share as if decedent had 99. 1 Stimson's Am. St. Law,
died intestate. Hoitt v. Hoitt, 63 § 2G76(C).
N. H. 498. 1. Doe d. White v. Barford, 4
96. Kenebel v. Scrafton, 2 East, Maule & S. 10; GoodseU's Appeal
530; Baldwin v. Spriggs, 65 Md. from Probate, 55 Conn. 171,
373, 5 Atl. 295. 10 Atl. 557; Swan v. Hammond,
97. Marston v. Roe, 8 Adol. & 138 Mass. 45; Brush v. Wilkins,
E. 14; Chicago, B & Q. R. Co. v. 4 Johns. Ch. (N. Y.) 506. Con-
Wasserman (C. C.) 22 Fed. 872; tra, McCullum v. McKenzie, 26
Baldwin v. Spriggs, 65 Md. 37."^, Iowa, 510; Negus v. N°~us 46
5 Atl. 295. See Nutt v. Norton, lowa, 487, 26 Am. Rep. 157.
142 Mass. 242, 7 N. E. 720; Hoitt
§ 475] Transfer by Will. 1847
states, to tlie condition that lie leaves a widow for whom
he does not provide by marriage settlement or in the
will, or does not so mention her in the will as to show an
intention not to provide for her. And in some states a
will made before the birth of issue, which makes no
mention of possible issue, is in etfect revoked if the
testator leaves a cliild.^
Aliengtion of land. The conveyance by the
testator of land, which would otherwise pass under a
will previously made, necessarily withdraws such land
from the operation of the will.^ When there is merely
a contract to convey, the vendor is, as before stated,^
a trustee for the purchaser, and the legal title alone
passes under his previous devise of the land, the right
to the purchase money passing, in the absence of stat-
ute, to the personal representative."^ In some states,
however, the statute provides that, on the death of the
vendor of land, the unpaid purchase money shall pass
under the devise of the land, in place, as it were, of the
land.^
So far as the common-law rule that the will operates
only on land owned by testator at the time of its execu-
tion may still remain in force in any jurisdiction, the
reconveyance to testator of land conveyed by him after
the making of the will cannot render the will operative
as to such land.'^ And, apart from any change in the
law brought about by the modern statutes, a conveyance
by the testator after the making of his will, otherwise
2. 1 Stimson's Am. St. Law, § Atl. 295, 296; Skinner v. New-
2676; 1 Woerner, Administration, berry, 51 111. 203; Bruck v. Tuck-
§ 55. See Shackelford v. Wash- er, .32 Cal. 426. See ante, § 127.
burn, 180 Ala. 168, 60 So. 318, 6. 1 Woerner, Administration.
43 L. R. A. (N. S.) 1195. § 53.
3. 1 Jarman, Wills, 129. 7. 1 Jarman, Wills (4th Ed.)
4. Ante, § 125. 147; Philippe v. Clevenger, 239
5. 1 Jarman, WiUs, 129, Wal- 111. 117, 16 A. & E. Ann. Cas. 207,
ton V. Walton, 7 Johns. Ch. (N. 87 N. E. 858; Morey v. Sohler,
Y.) 258 11 Am. Dec. 456; Bender 63 N. H. 507, 56 Am. Rep.
V. Luckenbach 1G2 Pa. St. 18, 29 538.
1848 Eeai. Property. [§ 475
than by waj^ of mortgage, ^ if it transfers the legal or
equitable title in fee simple, is effective as a revocation,
even though, by the same instrument, the title is im-
mediately revested in him.^ Under the statutory rule
which now prevails in England, and in most, if not all,
of the states, that the will operates on such land as the
testator has at the time of his death, a conversance by
testator after making his will cannot prevent the opera-
tion of the will upon the land conveyed, if it is recon-
veyed or title is in any way revested in the testator
before his death ; and in many jurisdictions there is an
express provision that a conveyance shall not prevent
the operation of the will with respect to such an estate
as testator has at the time of his death, unless, in some
states, the intention to revoke is expressed in the con-
veyance.^"
A conveyance by a testator was held in England, as
the law formerly stood, to effect a revocation of a de-
vise of the land conveyed, although the conveyance was
void, either for want of capacity in the grantee, or for
want of the proper formalities, on the theory, it seems
that such an attempted conveyance shows an intention
that the devise shall never be operative. ^^ This rule
is no longer in force in England, for the reason, it is
said, that, as a valid conveyance no longer effects a
revocation if the title becomes revested in testator, one
which is invalid can have no greater effect.^^ In this
country there seems to be no explicit decision that an
8. Jackson v. Parker, Ambl. 2 Whart. (Pa.) 103; See Ballard
687; Baxter v. Dyer, 5 Ves. Jr. v. Carter, 5 Pick." (Mass.) 112, 16
656; McTaggart v. Thompson, 14 Am. Dec. 377.
Pa. St. 149. This is by reason 10. Wills Act, 7 Wm. IV. and
of the fact that a mortgage is in 1 Vict. c. 26, § 23; 1 Stimson's
equity merely a security or lien. Am. St. Law, § 2810.
9. Cave v. Holford, 3 Ves. 650; 11. 1 Jarman, Wills (4th Ed.)
Brydges v. Chandos, 2 Ves. Jr. 165; Mountague v. Jecifereys
417; Krieg v. McComas, 126 Md. Moore, 429; Hick v. Mors, Amb.
377, 95 Atl. 68; Walton v. Walton, 215; Walton v. Walton, 7 Johns.
7 Johns. Ch. (N. Y.) 258, 11 Ch. (N. Y.) 258, 11 Am. Dec. 456.
Am. Dec. 456; Jones v. Hartley, 12. 1 Jarman, Wills, 133.
§§ 476, 477] Transfer by Will. 1849
invalid conveyance could in an}' case effect a revocation,
but there are dicta to such an effect.^-^ And on such
theory, or one analogous thereto, a revocation has been
regarded as effected by a conveyance delivered on a
condition which was never satisfied.^* A conveyance
which is voidable because procured by fraud has in two
states been decided not to cause a revocation.^ ^'
§ 476. Children or issue omitted from will. In
most states there is a statutory provision that, if a
child living at the testator's death, or who has died
prior to such death leaving issue, was born after the
execution of the will, such child or issue shall take the
share to which he or they would have been entitled if
testator had died intestate. In a number of the states,
such a provision applies only in case the child or issue
were not provided for otherwise by testator, or were
not intentionally omitted.^*' In a number of states,
statutes of this character, entitling an omitted child to
the share which he would have had if deceased had died
intestate, are not restricted in their ap})lication to
children born after the execution of the will, but ap]ily
in the case of any child, usuall}- whether that child was
omitted intentionally or unintentionally.^'^
§ 477. Revival of will. In the case of a will which
is revoked by an express statement to that effect in a
subsequent will, or by inconsistent provisions therein,
the question has frequently arisen as to tlie etfcct of a
13. Walton v. Walton, 7 Johns. W. 697; Smithwick v. Jordan, 15
Ch. (N. Y.) 258; Graham v. Mass. 113. Contra in England
Burch, 47 Minn. 171, 28 Am. St. Simpson v. Walker, 5 Sim. 1. See
Rep. 339, 49 N. W. 697; Bigelow, Redfield, Wills (4th Ed.) 344.
Wills, 134. But see Bennett v. 10. 1 Stimson's Am. St. Law,
Gaddis, 79 Ind. 347. § 2843.
14. In re Gensemore's Estate, 17. 1 Stimson's Am. St. Law, §
246 Pa. 216, 92 Atl. 134. 2842. See Page, Wills, § 291; 1
15. Graham v. Burch, 47 Minn. Woeruer, Administration, § 55.
171, 28 Am. St. Rep. 339, 49 N.
1850 Eeal Property. [§ 477
subsequent revocation of the revoking will. In England
it was held by the couunon-law courts that the effect
was to ''revive" or put in force again the pro^^sions of
the earlier will, if this had not been destroyed, on the
theory that, as the second will had no operation until
testator's death, if it was revoked it could not operate
as a revocation of the earlier will.^^ The ecclesiastical
courts, however, held that the question of revival was
one of intention purely, to be decided according to the
fact and circumstances of the particular case.^^ This
question is there set at rest by the Wills Act,^" which
provides ''that no will or codicil, or any part thereof,
which shall be in any manner revoked, shall be revived
otherwise than by the re-execution thereof, or by a
codicil executed in manner hereinbefore required, and
showing an intention to revive the same," it being held
thereunder that the cancellation or destruction of the
revoking will cannot revive the previous will.^^
In this country the view of the English ecclesiasti-
cal courts, that the question of revival is one purely of
intention, has occasionally been adopted,^- with the
burden, it seems, of showing revival upon the party
asserting it.-' In some jurisdictions, on the other
hand, the view^ is taken that the revocation of the sub-
sequent will ipso facto revives the earlier one,^^ pro-
is. Goodright v. Glazier, 4 431, 4 A. & E. Ann. Cas. 306
Burrows, 2512, 4 Gray's Cas. 434; and note, 96 N. W. 151; Lane v.
1 Jarman, Wills (4th Ed.) 136. Hill, 68 N. H. 275, 73 Am. St.
19. Moore v. Moore, 1 Phillim. Rep. 591; McClure v. McClure, 86
357; Usticke v. Bawden, 2 Tenn. 173, 6 S. W. 44; In re
Addams, 116. Gould's Will, 72 Vt. 316, 47 Atl.
20. 7 Wm. IV. and Vict. C. 1082; See Bohannon v. Walcot, 1
26, § 22. How. (Miss.) .-566; Randall v.
21. 1 Jarman, Wills 126; 1 Beatty, 31 N. J. Eq. 643.
Williams, Executors (9tli Ed.) 23. Pickens v. Davis, 134
16:5. Mass. 252; Lane v. Hill, 68 N.
22. Blackett v. Ziegler, 153 H. 275, 73 Am. St. Rep. 591. See
Iowa, 344, 133 N. W. 901; Pick- editorial note, 15 Harv. Law Rev.
ens V. Davis, 134 Mass. 252; 142.
Williams v. Miles, 68 Neb. 463, 24. Stetson v. Stetson, 200 111.
62 L. R. A. 383, 110 Am. St. Rep. GOl, 61 L. R. A. 258, 66 N. E.
§ 478] Transfer by Will. 1851
vided, accordingly to some courts, there was uo express
revocation of the first will, but merely an inconsistency
between the first and second wills, on the theory that
while an express revocation operates inmiediately, a
revocation by an inconsistent provision is ambulatory
until death.-^ In a few states the rule of the English
statute has been adopted in the absence of local
legislation on the subject.-''
There are, in many states, statutory provisions on
this subject, it being sometimes provided, as in England,
that a will once revoked can be revived only by a re-
execution thereof, or by a codicil duly executed, while
in others the canceling, destruction, or revocation of
the second will does not revive the first will, unless
such intent appears in the terms of the revocation, or
the first will is duly republished.-*^*
§ 478. Republication. A will may be republished
so as to give the words of the will the same effect as
if the will had been originally executed at the time of
such republication, that is, so as to make it "speak" as
of that time.-' Under the law as it formerly existed
262; Moore v. Rowlett, 269 HL 315; Danley v. Jeftersou, 150
88, 109 N. E. 682; Flintham v. Mich. 590, 121 Am. St. Rep. 640,
Bradford, 10 Pa. St. 82; Bates v. 13 Ann. Cas. 242, 114 N. W.
Hacking, 29 R. I. 1, 14 L. R. A. 470; In re Noon's Will, 115 Wis.
(N. S.) 937, 68 Atl. 622; Taylor 299, 95 Am. St. Rep. 944, 91 N.
V. Taylor, 2 Nott & McC (S. C.) W. 670. See editorial note, 12
482. Columbia Law Rev. 353.
25. James v. Marvin. 3 Conn. 26a. 1 Stimson's Am. St. Law,
576; Colvin v. Warford, 20 Md. §§ 2678, 2679.
357; Scott v. Fink, 45 Mich. 241, The destruction of a codicil re-
7 N. W. 799; Cheever v. North, viving a former revoked will has
106 Mich. 390, 37 L. R. A. 561, been decided not to have the
58 Am. St. Rep. 499, 64 N. W. effect of rendering the revival in-
455. See Peck's Appeal from Pro- operative, if there was no inten-
bate, 50 Conn. 562; Fitzpatrick's tion that it should have that
Appeal, 87 Conn. 579. 89 Atl. 92; effect. James v. Shrimpton. 1
Hawes v. Nicholas, 72 Tex. 481, Prob. Div. 431.
2 L. R. A. 863, 10 S. W. 558. 27. 1 Jarman, Wills, 159; Wil-
26. Harvell v. Lively, 30 Ga. liams. Executors (9th Ed.) 170.
1852 Keal Property. [§ 478
in England, restricting the operation of a devise of
lands to such lands as were owned by the testator at the
time of execution of the will, and in those states in
this country where the same rule still prevails, the effect
of a republication is important, as it brings lands ac-
quired between the date of execution and of republi-
cation within the operation of a general devise.^* But
since the general change of the law in this respect, the
doctrine of republication has lost much of its importance
and it calls for consideration now chiefly in connection
with the possibility of giving effect to a will orginally
invalid,^^ or w^hich has been revoked,^" but not de-
stroyed.
The republication may consist of a re-execution of
the instrument with the same formalities as are neces-
sary in the case of an absolutely new will. Accordingly,
while, previous to the Statute of Frauds, it might be
by means of an oral declaration even in the case of
land,^^ since that time the same formalities have been
required in the republication, as in the making, of a will
of land.^^ The making and execution of a codicil to a
will has likewise the effect, in the absence of any ap-
pearance of a contrary intention, of a republication
of the will, and it is immaterial whether the codicil
28. Beckford v. Parnecott Cro. Atl. 426; Skinner v. American
Eliz. 493; Barnes v. Crow, "4 Bible Soc, 92 Wis. 209, .65 N. W.
Brown Ch. 2; Luce v. Dimock. 1 1037.
Root (Conn.) 82; Jack v. Shoen- 30. In re Cutting's Estate, 172
berger, 22 Pa. St. 416. Cal. 191, 155 Pac, 1002, Ann.
29. Burge v. Hamilton, 72 Ga. Cas. 1917D, 1171; Brown v.
568; Brown v. Riggin, 94 111. 560, Clark, 77 N. Y. 369; Burge v.
Manship v. Stewart, 181 Ind. Hamilton, 72 Ga. 568; Wickoff's
299, 104 N. E. 505; Barnes v. Appeal, 15 Pa. St. 281, 53 Am.
Phillips, 184 Ind. 415, 111 N. E. Dec. 597.
419; Beall v. Cunningham, 3 B. 31. Beckford v. Parnecott, Cro.
Mon. (Ky.) 390, 39 Am. Dec. 120; Eliz. 493.
McCurdy v. Neall, 42 N. J. Eq. 32. Jackson v. Potter, 9 Johns.
333, 7 Atl. 566; Smith v. Runkle, (N. Y.) 312; Love v. Johnston,
— (N. J.)— 97 Atl. 296; Stevens v. 34 N. C. 355, 1 Woerner, Admin-
Myers, 62 Ore. 372, 121 Pac. 434; istration § 56.
Walton's Estate. 194 Pa. 528, 45
§ 478]
Transfer by "Will.
1853
expressly so provides, or whether it is actually annexed
to the will.''^ In the absence of an expression of a
contrary intention, the republication of a will, whether
by re-execution, or by the making of a codicil, is of the
will as changed by any pre-existing codicils, they being
in effect a part of the will.^* The mere fact that the
will is referred to by its original date does not take
the case out of the rule.^^
33. 1 Williams, Executors
(9tli Ed.) 164; Barnes v. Crow,
4 Brown Ch. 2; Freeman v. Hart,
61 Colo. 455, 158 Pac. 305; Pope
V. Pope, 95 Ga. 87, 22 S. E. 245;
Hobart x. Hobart, 154 111. 610, 45
Am. St. Rep. 151; Manship v.
Stewart, 181 Ind. 299, 104 N. W.
505; In re Murfield's Will, 74
Iowa, 479; Brimmer v. Sohier, 1
Cush. (Mass.) 118; McCurdy v.
Neall, 42 N. J, Eq. 333, 7 Atl.
566; Van Alstyne v. Van Alstyne,
28 N. Y. 375; Stevens v. Myers,
62 Ore. 372, 121 Pac. 434; Lin-
nard's Appeal, 93 Pa. 313, 39 Am.
Rep. 753; Skinner v. American
Bible Soc, 92 Wis. 209, 65 N. W.
1037.
34. 1 Williams, Executors (9th
Ed.) 171; Crosbie v. MacDoual, 4
A''es. 610.
35. Green v. Tribe, 9 Ch. Div.
231.
2 R. P.— 42
CHAPTER XXI.
DEDICATION.
§ 479. Purposes for which dedication may be made.
480. No particular beneficiary or baneficiaries.
481. Who may effect dedication.
482. Intention to dedicate.
483.. Acceptance.
484. Dedication distinguished from estoppel.
485. Qualified and conditional dedication.
486. Effect of dedication.
§ 479. Purposes for which dedication may be made.
Land may be "dedicated" to a public use by means
of a declaration by its owner, either by word or act,
of his intention that the land shall be devoted to such
use.^ The doctrine of dedication appears in its in-
ception to have been confined to the case of a dedica-
tion of land, or of a bridge erected thereon, to high-
way uses,^'' but the scope of the doctrine has been very
greatly extended. It has, for instance, been decided
that land may be dedicated for use by the public as a
park, common or public square,^ as a wharf or landing
1. Angell. Highways. § 1H2 2 Ed. 4, 9; 8 Ed. 4, 9; 8 Hen. 7,
et seq: Elliott, Roads & Streets, 5; 2 Co. Inst. 705). For it is
c, 5. presumed by the law, that the
la. While Lade v. Shepherd, proprietor of such land adjoin-
2 Strange, 1004 (anno 1735) ap- ing gave up to the public for
pears to be the first reported passage at some former period all
case in which the doctrine is the land between his enclosure
specifically referred to, it is rea- and the middle of the road"
sonable to suppose that it existed, (citing Doe d. v. Pearsey, 7 B.
in theory at least, from a much & C. 306). See also the discus-
earlier period. In Woolrych, sion and quotations Cn the opin-
Ways, p. 5, appears the following ion of Collin, J., in Appleton v.
language: 'It is laid down in the New York, 219 N. Y. 250, 114 N.
old books, that in a highway the E. 73.
king has nothing except the pas- 2. Baker v. Johnston, 6 Pet.
sage for himself and his people, (U. S.) 431; San Leandro v. Le
but that the freehold, and all the Breton, 72 Cal. 170, 13 Pac. 405;
profits, as trees, etc., appertain to Gordon County v. Calhoun, 128
the lord of the soil (citing Y. B. Ga. 781, 58 S. E. 360; Rhodes v.
(1854)
§ 479]
Dedication.
1855
place,3 as a cemetery,-' foi- school })nrposes,^ and for the
erection of public buildings."
The analogy between the dedication of land for a
park or common and its dedication for a liighway is
reasonably close, since in both cases there results a riaht
of user in each and every member of the public. The
Town of Brightwood, 145 Ind.
21, 43 N. E. 942; Pella v. Scholte,
24 Iowa, 283, 95 Am. Dec. 729;
Northport Wesleyan Grove Camp
Meeting Ass'n v. Andrews, 104
Me. 342, 20 L. R. A. (N. S.) 976,
71 Atl. 1027; Higgenson v. Slat-
tery, 212 Mass. 583, 99 N. E.
523; Trustees of M. E. Church,
Hoboken v. Council of Hoboken,
33 N. J. L. 13, 97 Am. Dec. 696;
Porter v. International Bridge Co.,
200 N. Y. 234, 93 N. E. 716; Le-
Clercq v. Gallipolis, 9 Ohio, 217,
28 Am. Dec. 641; Carter v. Port-
land, 4 Ore. 339; Com. v. Rush,
14 Pa. St. 186; State v. Travis
County, 85 Tex. 435, 21 S. W.
1029; State v. Trask, 6 Vt. 355, 27
Am. Dec. 554; Sturmer v. Ran-
dolph County Court, 42 W. Va.
724, 36 L. R. A. 300, 26 S. E.
532; Thorndike v. Milwaukee Au-
ditorium Co.. 143 Wis. 1, 126 N.
W. 881.
3. City of Napa v. Rowland, 87
Cal. 84, 25 Pac. 247; Alton v.
Illinois Transportation Co., 12 111.
38, 52 Am. Dec. 479; Village of
Mankato v. Willard, 13 Minn. 13,
97 Am. Dec. 208; Child v. Chap-
peU, 9 N. Y. 246; Portland & W.
V. R. Co. V. Portland, 14 Ore.
188, 58 Am. Rep. 299, 12 Pac. 205;
City of Pittsburg v. Epping Car-
penter Co., 194 Pa. St. 318, 45 Atl.
129; Gardner v. Tisdale, 2 Wis.
153, 60 Am. Dec. 407.
4. Wormley v. Wormley, 207
111. 411, 3 L. R. A. (N. S.) 481,
69 N. E. 865; Redwood Cemetery
Ass'n V. Bandy, 93 Ind. 246;
Hagaman v. Dittmar, 24 Kan. 42;
Tracy v. Bittle, 213 Mo. 302, 112
S. W. 45; First Nat. Bank of
Pawnee City v. Hazels, 63 Neb.
844, 56 L. R. A. 765, 89 N. W.
378; Stockton v. Newark, 42 N. J.
Eq. 531, 9 Atl. 203; Hunter v.
TruiBtees of Sandy Hill, 6 Hni
(N. Y.) 407; Pott v. Pottsville, 42
Pa. 132; Mowry v. City of Provi-
dence, 10 R. I. 52; Pierce v.
Spafford, 53 Vt. 394; Roundtree
V. Hutchinson, 57 Wash. 414, 27
L. R. A. (N. S.) 875, 107 Pac. 345;
5. Carpenteria School Dist. v.
Heath, 56 Cal. 478; Chapman v.
Floyd, 68 Ga. 455; Board of
Regents for Normal School Dist.
No. 3 V. Painter, 102 Mo. 464, 10
L. R. A. 493, 14 S. W. 938; Board
of Education of Incorporated Vil-
lage of Van Wert v. Edson, 18
Ohio St. 221; Pott v. Pottsville.
42 Pa. 132; School Dist. No. 2 of
Johnson County v. Hart, 3 Wyo.
563, 27 Pac. 919. 29 Pac. 741.
P. Spires v. Los Angeles, 150
Cal. 64. 87 Pac. 1026; Campbell
County Court v. Newport, 12 B.
Mon. (Ky.) 538; State v. Travis
County, 85 Tex.[ 435, 21 S. W.
1029; Board Sup'r.s Frederick
County v. City of Winchester, 84
Va. 467, 4 S. E. 844.
1856 Eeal Property. [§ 479
same may be said of a dedication of land, covered by-
water, for use by the individual members of the public,
for purposes of navigation, i)assage or recreation,"^ and
of a dedication of land immediately surrounding a well
or spring, to enable the public to obtain water there-
from.^ Likewise, a decision that land may be dedicated
to the use of the public for the purpose of keeping
the view of the sea unobstructed appears to involve
merely a recognition of the fact that there may, in
such a case, be a use of the land by any member
of the public who may chose to look at the sea
over that land. But the position that land may be
dedicated for school purposes, or for use by the public
authorities as a cemetery, involves a very considerable
departure from the original conception of dedication,
since such a use is necessarily restricted to but a
small part of the public. A school building into which
any^ and every person shall have the right of entry,
or a cemetery in which any and every person shall
have the right of burial, is not readily conceivable.
And likewise, when land is devoted to the purposes of
the particular municipality, as, for instance, to the
erection of a municipal building, the beneficiaries of the
use are not the public generally, but that class of the
public who reside within the municipal limits. As
regards the dedication of land for a wharf or landing
place, such a use of land appears to be analogous to its
use for highway purposes, in so far as the former use
7. See Shaw v. Crawford, 10 v. McPherson, — Ky. — 124 S. W.
Johns. 236; Compton v. Waco 272.
Bridge Co., 62 Tex. 715; Gillean 9. Atty Gen. v. Vineyard Grove
V. Frost, 25 Tex. Civ. App. 371, Co., 181 Mass. 507, 64 N. E. 75;
61 S. W. 345; Trenton Water See Atlantic City v. Associated
Power Co. v. Donelly, 77 N. J. Realties Corp., 73 N. J. Eq. 721,
L. 659, 73 Atl. 597. 17 Ann. Cas. 743, 70 Atl. 345;
8. Smith v. Cornelius, 41 W. Berrien Springs v. Ferguson, 154
Va. 59, 30 L. R. A. 747, 23 S. E. Mich. 472, 118 N. W. 262; Poole
599; McConnell v. Lexington, 12 v. Commissioners of Rehoboth, 9
Wheat, 582; Raleigh County v. Del. Ch. 192, 80 Atl. 683.
Ellison, 8 W. Va. 308; Thompson
<§> 479] Dedication. 1857
involves merely a right, in any member of the public,
to pass to or from boats over that land, but in so far as
this may involve the temporary storage or piling of
goods on the land by any member of the public, to the
possible exclusion of any use whatsoever of the land by
the owner of the land or by other members of the
public, the applicability thereto of the doctrine of
dedication appears, on principle, to be open to question,
and there are judicial expressions to this effect.^^
The greatest extension which the doctrine of dedi-
cation has received is that involved in decisions that
land may be dedicated for the use of a particular
religious sect or denomination, or a particular church
society, as a place for worship,^^ as a cemetery/^ or as
a parsonage.^^ These decisions appear, ordinarily, to
have been dictated by a desire to uphold a gift which
would otherwise fail for lack of a sufficient conveyance,
and they are usually sought to be justified on the theory
that such a use is a public use. It is difficult to con-
cede, however, that a use of land by a sect or society
for religious or cemetery purposes is a public use. The
doctrine of dedication has never, apparently, been
applied in the case of land devoted to a merely philan-
thropic use, such as an almshouse or hospital, not under
the control of the public authorities,^^ and yet the pub-
lic is ordinarily quite as mueli interested in such a use
10. Pearsall v. Post, 20 Wend. S.) 566, 7 L. Ed. 212; Boyce v.
(N. Y.) Ill; Post V. Pearsall, 22 Kalbaugh, 47 Md. 334, 28 Am.
Wend. N. Y.) 425. Rep. 464.
11. Com'rs of Wyandotte Co. v. 13. McKinney v. Griggs, 5
Presbyterian Church, 30 Kan. 620, Bush (Ky.) 401, 96 Am. Dec. 360.
1 Pac. 109; Griffey v. Briars, 7 14. In Cincinnati v. White's
Bush. (Ky.) 471; Hannibal v. Lessee, 6 Pet. (U. S.) 431. it is
Draper, 15 Mo. 634; Cooper v. said that " it was admitted at the
Sandy Hill First Presbyterian bar that dedications for charitable
Church, 32 Barb. (N. Y.) 222; and religious purpo.ses, and for
Williams v. First Presbyterian public highways, were valid." The
Society, 1 Ohio St. 478; Atkinson admission appears to have been
V. Bell, 18 Tex. 474. unjustified as regards dedications
12. Beatty v. Kurtz, 2 Pet. (U. for charitable purposes.
1858 Real Peopeety. [^ 480
as in the use of land for worship under the auspices
of some particular church. And it has been explicitly
decided that land cannot be dedicated for use for a
raihvay,^-^ a use in which all classes of the community
are more or less interested. The decisions that land
may be dedicated for the use of a particular religious
sect or society, appear to be based, directly or in-
directly, upon a false analogy suggested in an early
case in the federal Supreme Court,^^ between the doc-
trine of dedication, and a doctrine, applied in that
case, that a grant for the establishment of a church will
be upheld even though at the time of the grant there
is no grantee in existence." The suggestion thus made,
that land may be dedicated for religious purposes, was
subsequently applied by that court as validating an
oral gift of land to an unincor[3orated religious body
for use as a cemetery.^^ And these cases are ordinarily
referred to as conclusive of the validity of a dedication
for the benefit of a religious society.
§ 480. No particular beneficiary or beneficiaries.
It is well recognized that a dedication of land does not
involve any necessity of a particular grantee or bene-
ficiary.^^ The purpose and effect of a common-law dedi-
15. Elyton Land Co. v. South purposes. Morgan v. Railroad
& North Alabama Co., 95 Ala. 631, Co., 96 U. S. 716, 24 L. Ed. 743;
10 So. 270; Pittsburgh, C, C. & Kansas City & N. Connecting R.
St. L. Ry. Co. V. Warrum, 42 Co. v. Baker, 183 Mo. 312, 82 S.
Ind. App. 179, 82 N. E. 934, 84 W. 85; Iowa Cent. R. Co. v.
N. E. 356 (dictum); Louisville Homan, 151 Iowa, 404, 131 N. W.
etc. R. Co. V. Stephens, 96 Ky. 878.
401, 49 Am. St. Rep. 303, 28 S. W. 16. Pawlet v. Clark, 9 Cranch
14; Lake Erie & W. R. Co. v. U. S. 292, 3 L. Ed. 735.
Whitham, 155 111. 514, 28 L. R. A. 17. See editorial note 16 Harv.
612, 46 Am. St. Rep. 355, 40 N. Law Rev. 128.
E. 1014; Todd v. Pittsburg, Ft. W. 18. Beatty v. Kurtz, 2 Pet. (U.
& C. R. Co., 19 Ohio St. 514; Wat- S.) 566, 7 L. Ed. 521.
son v. Chicago M & St. P. R. 19. Beatty v. Kurtz, 2 Pet.
Co., 46 Minn. 321, 48 N. W. 1129. 566, 7 L. Ed. 521; Doe v. Jones,
But by force of statute land 11 Ala. 63; Warren v. Jackson-
may be dedicated for railway vllle, 15 111. 236, 58 Am. Dec.
§ 480]
Dedicatiox.
1859
cation is to create a riglit of user in the public, or at
least in some particular class of the public, and not in
some particular person or persons, natural or legal.
And for this reason, not only is a particular grantee
or beneficiary unnecessary, but there is, it seems, no
dedication when there is a particular grantee or bene-
ficiary.
As there cannot be a dedication in favor of a par-
ticular person, so there cannot be a dedication in
favor of a limited number of persons.-" It must be
in favor of the public, and not of a part of the public.
Consequently an attempted dedication in favor of a
municipality, or the inhabitants of a municipality, has
no legal validity, unless construed as a dedication in
favor of the whole public,^! and this although the numi-
cipality may represent the public for tbe purpose of ac-
610; Maywood Co. v. Village of
Maywood, 118 lU. 61, 6 N. E.
866; San Leandro v. Le Breton,
72 Cal. 170, 13 Pac. 405; State
V. Wilson, 42 Me. 9; Winona v.
Huff, 11 Minn. 119; Bryant's
Lessee v. McCandless, 7 Ohio Pt.
2, 135; Atkinson v. Bell, 18 Tex.
874; Meeker v. Puyallup, 5 Wash.
759, 32 Pac. 727.
20. Hill V. W^ng, 193 Ala. 312,
69 So. 445; Illinois Ins. Co. v.
Littlefield, 67 111. 368; City of
Chicago V. Borden, 190 111. 430,
60 N. E. 915; Thomas v. Ford, 63
Md. 346, 52 Am. Rep. 513; Witter
V. Harvey, 1 McCord L. 67, 10
Am. Dec. 650; Brown v. Oregon
Short Line R. Co., 36 Utah, 257,
24 L. R. A. (N. S.) 86, 102 Pac.
740; Talbott v. Richmond & D.
R. R. Co., 31 Graft. (Va.) 685;
Tupper V. Huson, 46 Wis. 646, 1
N. W. 332.
21. Poole V. Huskinson, 11 M.
& W. 827; Miller v. City of
Indianapolis, 123 Ind. 196, 24 N.
228; Atty Gen. v. Tarr, 148 Mass.
309, 2 L. R. A. 87, 19 N. E. 358;
Trerice v. Barteau, 54 Wis. 99, 11
N. W. 244.
In connection with the state-
ment that it is immaterial to the
validity of a dedication that
there is no municipal corporation
existent at the time to assume
control of the land dedicated on
behalf of the public, it is oc-
casionally suggested that the lack
in this respect is remedied by
the subsequent creation of such
a corporation. Riverside v. .Mac-
Lain, 210 III. 308, 66 L. R. A. 288.
102 Am. St. Rep. 164, 71 N. E.
408; Buffalo L. & R. Ry. Co. v.
Hoyer. 214 N. Y. 236. 108 N. E.
455; Kniss v. Duquesne Borough,
255 Pa. 417, 100 Atl. 132; Gillian
v. Frost. 25 Tex. Civ. App. 371.
61 S. W. 345. This is, it is con-
ceived, misleading. The dedica-
tion is valid regar(U«^ss of wiietlier
1860 Real Property. [§ 481
cepting the dedication,-- and controlling the user of the
land dedicated. .
The case of a gift of land to a municipal corporation,
effected by a written conveyance to the corporation,
for a purpose involving a use of the land by or for
the benefit of the inhabitants, is occasionally referred
to as a dedication,^'^ but it is not properly such. In
such a case the municipality is in the position of a
grantee, while in the case of a dedication there is, as
above stated, no grantee. And conceding that a valid
dedication may be made in favor of a religious as-
sociation by an oral declaration of an intention to that
effect,^'* a view which, as before suggested, is difficult
to harmonize with the requirement that dedication be
in favor of the public and not of part of the public,
the term dedication is not properly applicable when
there is a valid conveyance in writing to such associa-
tion or in trust therefor. In such case the title passes,
not by dedication, but by grant.
§ 481. Who may effect dedication. No one other
than the owner of land, or one acting under authority
from him, can effect a dedication,^^ and an attempted
such a corporation is subsequent- R. I. 56, 19 L. R. A. 262, 25 Atl.
ly created. 692; Spokane v. Security Savings
22. Post, § 483. Soc, 82 Wash. 91, 143 Pac. 435.
23. Gaynor v. Bauer, 144 Ala. 24. Anie, § 479 notes 11-13.
448, 3 L. R. A. N. S. 1082, 39 So. 25. Johnson v. Dadeville, 127
749; Cordano v. Wright, 159 Cal. Ala. 244, 28 So. 700; California
610, A. & E. Ann. Cas. 1912C, Nav. & Improvement Co. v. Union
1044, 115 Pac. 227; H. A. Hillmer Transportation Co., 126 Cal. 433,
Co. V. Behr, 264 111. 568, 106 N. 46 L. R. A. 825, 58 Pac. 936;
E. 481; In re Wellington, 16 Shedd v. Alexander, 270 111. 117,
Pick. (Mass.) 87, 26 Am. Dec. 110 N. E. 327; Edenville v. R. R.
631; Rowzee v. Pierce, 75 Miss. Co., 77 Iowa, 69, 41 N. W. 568;
846, 40 L. R. A. 402, 65 Am. St. Allen v. Meuwenberg, 108 Mich.
Rep. 625, 23 So. 307; Normal 629, 66 N. W. 571; Stillman v.
School Dist. No. 30 v. Painter, 102 Olean, 210 N. Y. 168, 104 N. E.
Mo. 464, 10 L. R. A. 493, 14 S. 128.
W. 938; Greene v. O'Connor, 18
^ 481]
Dedication.
1861
dedication by one not the owner is not valididated by
his subsequent acquisition of title, unless he thereafter
in some way recognizes the dedication.-*^
One having a }iartial or limited interest in land can-
not be affected by a dedication in which he does not
participate. For instance, an existing easement in the
land,^^ or lien, by way of mortgage,-^ or otherwise,-^ is
not affected by a dedication made by the owner of an
estate in fee simple in the land, and a dedication by
one cotenant is a nullity as regards the other cotenants.-'*^
Likewise a reversioner or remainderman cannot be af-
fected by a dedication made by the particular tenant
alone.^^
A municipal corporation, it has been held, may dedi-
cate land owned by it to a particular public use,"- and
26. Boerner v. McKillip, 52
Kan. 508, 35 Pac. 5; Kansas City
Mining Co. v. Riley, 133 Mo. 574,
34 S. W. 835; Camden v. Mc-
Andrew & Forbes Co., 85 N. J. L.
260, 88 Atl. 1034; Chase v. Oregon
City, 72 Ore. 527, 143 Pac. 1111;
liushnell v. Scott, 21 Wis. 451, 24
Am. Dec. 555.
27. Delaware & Hudson Co. v.
Olyphant Borough, 224 Pa. 387,
73 Atl. 458; State v. Steamship
Co., Ill La. 120, 35 So. 482; De-
troit V. Detroit & M. R. Co., 23
Mich. 173; Sarcoxie v. Wild, 64
Mo. App. 403. See South Berwick
V. York County, 98 Me. 108, 56
Atl. 623.
28. Hoole V. Atty. Gen. 22 Ala.
190; Jacobs Pharmacy Co. v.
Luckie, 143 Ga. 457, Ann. Cas.
1917A, 1105, 85 S. E. 332; H. A.
Hillmer Co. v. Behr, 264 111. 568,
106 N. E. 481; Granite Bituminous
Pav. Co. V. McManus, 244 Mo. 184,
148 S. W. 621; Gate City v. Rich-
mond, 97 Va. 337. 33 S. E. 615.
29. Hays v. Perkins, 109 Mo.
102, 18 S. W. 1127; Morning v.
Lincoln, 93 Neb. 364, 140 N. W.
638.
30. South Baltimore Harbor &
Imp. Co. V. Smith, 85 Md. 537,
37 Atl. 27; St. Louis v. Laclede.
96 Mo. 197, 9 Am. St. Rep. 334, 9
S. W. 581; Thomason v. Dayton,
40 Ohio St. 63; Daniels v. Almy,
18 R. I. 244. 27 Atl. 330; Scott
V. State, 1 Sneed (Tenn.) 629.
31. Wood V. Veal, 5 Barn. &
Aid. 454; City of Durham v.
Southern R. Co., 121 Fed. 894;
Rives V. Dudley. 56 N. C. 126,
67 Am. Dec. 231; Schenley v.
Com., 36 Pa. 29. 78 Am. Dec.
359; McKinney v. Duncan. 121
Tenn. 265. 118 S. W. 683; See
editorial note. 21 Harv. Law
Rev. 151.
32. Boston v. Lecraw. 17 How.
Pr. (N. Y.) 426; San Francisco
V. Calderwood, .'.1 Cal. 585;
Holladay v. City and County of
San Francisco, 124 Cal. 352, 57
1862
Real Peoperty.
[§ 482
a dedication by the United States government, by-
means of an Act of Congress, has been recognized^^ as
lias a dedication by a state. ^^
§ 482. Intention to dedicate. A dedication need
not be by any formal act or declaration, and it is
sufficient if in any way the owner of the land indicates
an intention to devote the land to the public use.^**
The act of dedication is affirmative in character, and
the intention to dedicate must be clearly shown.^^ It,
however, the acts of the owmer of the land are such as
unequivocally to indicate an intention to dedicate, the
fact that he had no such intention is immaterial.^^
In case his acts are equivocal in character, he may, ac-
Pac. 146; Attorney General v.
Tarr, 148 Mass. 309, 2 L. R. A.
87, 19 N. E. 358; State v. Wood-
ward, 23 Vt. 92.
33. United States v. Illinois
Cent. R. Co., 154 U. S. 225, 237,
38 L. Ed. 971; Cook v. Burling-
ton, 30 Iowa, 94, 6 Am. Rep. 649;
Wells V. Pennington County, 2
S. D. 1, 39 Am. St. Rep. 758, 48
N. W. 305.
34. Snowden v. Loree, 122 Fed.
493; Zinc Co. v. City of La Salle,
117 111. 411, 2 N. E. 406, 8 N. E.
81; Terre Haute & I. R. Co. v.
Scott, 74 Ind. 29; Reilly v. City
of Racine, 51 Wis. 526, 8 N. W.
417.
34a. Hill V. Houk, 155 Ala.
448, 46 So. 562; Quinn v. Ander-
son, 70 Cal. 454, 11 Pac. 746;
Godfrey v. City of Alton, 12 IH.
29, 52 Am. Dec. 476; Williams
V. Wiley, 16 Ind. 362; HaU v.
McLeod, 2 Mete. (Ky.) 98, 74
Am. Dec. 400; Wright v. Tukey,
3 Cush. (Mass.) 290; Buntin v.
Danville. 93 Va. 200, 24 S. E.
30.
35. Harper v. State, 109 Ala.
66, 19 So. 901; Monterey v.
Malarin, 99 Cal. 290, 33 Pac. 840;
Denver v. Jacobson, 17 Colo.
497, 30 Pac. 246; City of Hart-
ford V. New York & N. E. R.
Co., 59 Con. 250, 22 Atl. 37;
Swift V. Lithonia, 101 Ga. 706, 29
S. E. 12; Bethel v. Pruett, 215
111. 162, 74 N. E. Ill; State v.
Green, 41 Iowa, 693; O'Malley v.
Dillenbeck Lumber Co., 141 Iowa,
186, 119 N. W. 601; Hayden v.
Stone, 112 Mass. 346; State v.
Nudd, 23 N. H. 327; Heiple v.
East Portland, 13 Ore. 97; Cin-
cinnati & M. V. R. Co., V. Rose-
ville, 76 Ohio St. 108, 81 N.
E. 178; Harris v. Commonwealth,
20 Graft. (Va.) 833; Atlas Lum-
ber Co. V. Quirk, 28 S. Dak. 643,
135 N. W. 172; Provident Trust
Co. V. City of Spokane, 63
Wash. 92, 114 Pac. 1030; Lynch-
burg Traction & Light Co. v.
Guill, 107 Va. 86, 57 S. E. 644.
36. Town of Holly Grove v.
Smith, 63 Ark. 5, 37 S. W. 956;
Frauenthal v. Slaten, 91 Ark.
350, 121 S. W. 395; Denver v.
Clements, 3 Colo. 484; Hanson v.
§ 482]
Dedication.
1863
cording to some decisions, testify as to his actual inten-
tion.^^
The existence or non existence of the intent to
dedicate in any particular case is a question of fact
rather than of law.^^
Public user as evidence. There are numerous
decisions to the effect that the mere fact that land is
used by the public for a greater or less time does not
in itself show a dedication thereof by the owner,^*
Proffer, 23 Idaho 705, 132 Pac.
573; Seidschlag v. Antioch, 207
in. 280, 69 N. E. 949; Miller v.
Indianapolis, 123 Ind. 196, 24 N.
E. 228; Tise v. Whitaker Harvey
Co., 146 N. C. 374, 59 S. E. 1012;
Cole V. Minnesota Loan & Trust
Co., 17 N. Dak. 409, 17 Ann. Cas.
304, 117 N. W. 354; Kuck v.
Wakefield, 58 Ore. 549, 115 Pac.
428; Lamar County v. Clemenis,
49 Tex. 347; Champ v. Nicholas
County Court, 72 W. Va. 475, 78
S. E. 36L
37. Bidinger v. Bishop, 76 Ind.
244; Goodfellow v. Riggs, 88
Iowa, 540, 55 N. W. 319; City of
Chicago V. Chicago, R. I. & P. Ry.
Co., 152 111. 561, 38 N. E. 768;
Helm V. McClure, 107 Cal. 199, 40
Pac. 437. Contra, Perkins v.
Fielding, 119 Mo. 149, 24 S. W.
444, 27 S. W. 1100.
38. City of Hartford v. New
York & N. E. R. Co., 59 Conn.
250, 22 Atl. 37; Harmony v.
Clark, 250 111. 57, 95 N. E. 47;
Owensboro v. Muster, 111 Ky.
856. C4 S. W. 840; Cushwa v.
Williamsport, 117 Md. 306, 83 Atl.
389; Adams v. Iron Cliffs Co., 78
Mich. 278, 18 Am. St. Rep. 441,
44 N. W. 270; Morse v. Zeize, 34
Minn. 35, 24 N. W. 287; New
Orleans, J. & G. N. R. Co. v.
Moye, 39 Miss. 374; Benton v. St.
Louis, 217 Mo. 687, 118 S'. W.
418; Wood v. Kurd, 34 N. J. L.
87; Waters v. Philadelphia, 208
Pa. St. 189, 57 Atl. 523; Folsom
V. Town of Underhill, 36 Vt.
580. The facts on which a find-
ing of dedication vel non, in a
large number of cases, was based,
are stated and considered in a
note to Benton v. St. Louis, 129
Am. St. Rep. 582 et seq.
39. Folkstone Corp. v. Brock-
man (1914) App. Cas. 338; Irwin
V. Dixion, 19 How. (U. S.) 10
13 L. Ed. 25; McKey v. Village
of Hyde Park, 134 U. S. 84, 33
L. Ed. 860; Steele v. Sullivan, 70
Ala. 589; San Francisco & Grote,
120 Cal. 59, 41 L. R. A. 335, 65
Am. St. Rep. 155, 52 Pac. 127;
Healey v. Atlanta, 125 Ga. 736, 54
S. E. 749; Palmer v. Chicago, 248
111. 201, 93 N. E. 765; Johnson
V. Robertson, 156 Iowa, 64. 135
N. W. 585; Cyr v. Madore, 73 Me.
53; Hayden v. Stone, 112 Mass.
340; £tacey v. Miller, 14 Mo. 478;
Nelson v. Reick, 96 Neb. 486,
148 N. W. 331 ; Lewis v. City of
Portland, 25 Ore. 133, 42 Am. St.
Rep. 772; Weiss v. Borough of
South Bethlehem. 136 Pa. 294. 20
1864
Real Property.
[§ 482
but the owner's acquiescence in such user of the land is
a fact to be considered in connection with other facts
bearing on the question of dedication,^^ the weight to
be attributed to such acquiescence depending, it would
seem, on the length and character of the user, the
nature of the place in w^hich it occurs, the ability of the
owner to prevent such user by the public without inter-
fering with his own user of the land, as well as other
circumstances.^^ The theory is that if the public user
has been openly as of right, and for so long a time that
Atl. 801; Worthington v. Wade,
82 Tex. 26, 17 S. W. 520; Bacon
V. Boston & M. R. Co., 83 Vt. 421,
76 Atl. 128; Lynchburg Traction
& Light Co. V. Guill, 107 Va. 86,
57 S. E. 644; Cunningham v.
Hendricks, 89 Wis. 632, 62 N. W.
410. But in Kentucky the con-
tinuous public user of a pass-
way for fifteen years without let
or hindrance from the owner has
been regarded as raising a con-
clusive presumption of dedication.
Bloomfield v. Allen, 146 Ky. 34.
141 S. W. 400.
40. Schwerdtle v. Placer
County, 108 Cal. 589, 41 Pac.
448; Atlanta Railway & Power
Co. V. Atlanta Rapid Transit
Co., 113 Ga. 481, 39 S. E. 12;
City of Chicago v. Chicago R. I.
& P. Ry. Co., 152 111. 561, 38 N.
E. 768; State v. Birmingham, 74
Iowa, 407, 38 N. W. 121; Southern
Railway v. Coplinger's Adm'r, 151
Ky. 749, 152 S. W. 947; Neal v.
Hopkins, 87 Md. 19, 39 Atl. 322;
Klenk v. Town of Walnut Lake.
51 Minn. 381, 53 N. W. 703; New
Orleans, J. & G. N. R. Co. v.
Moye, 39 Miss. 374; Penquite v.
Lawrence, 11 Ohio St. 274; Weiss
V. South Bethlehem Borough, 136
Pa. St. 294, 20 Atl. 801; Water-
town V. Troeh,— S. Dak.—, 125 N.
W. 501; Bennington County v.
Manchester, 87 Vt. 555, 90 Atl.
502; Christianson v. Caldwell, 152
Wis. 135, 139 N. W. 751; Sturmer
V. Randolph County Court, 42 W.
Va. 724, 36 L. R. A. 300, 26 S. E.
532. But that acquiescence in
public user for less than the pre-
scriptive period is insuflBcient to
evidence dedication, see Jones v.
Peterson, 178 Iowa, 1389, 161 N.
W. 181.
In a considerable number of
Jurisdictions the public user of
one's land under claim of right, if
continued for the prescriptive
period, is regarded as giving rise
to a conclusive presumption of
the legal creation of rights of
user in public, analogous to
the conclusive presumption of a
gi'ant on which the doctrine of
prescription for private rights
has ordinarily been based. This
matter we consider in connection
with the doctrine of prescription.
Post, § 533.
41. That the question whether
acquiescence in the user is such
as to evidence an intention to
dedicate is purely one of fact, see
Folkstone Corporation v. Brock-
man App. Cas. (1914) 338.
*§> 482 J Dedication. ]865
it must have come to the knowledge of the owner of the
land, the owner's acquiescence therein may justify the
inference that he intended that it be devoted to such
use.^2 jf ti^g usej. is ^q^ ^^g ^f pig^t, but is based upon
a license or permission given to individuals or to a
class of individuals, the owner's acquiescence therein
can obviously not support an inference of dedication.-*"'
When the owner of land leaves it open in whole or
in part as a means of access to his own premises, the
fact that he allows the public generally to use it for
purposes of passage is but slight, if any, evidence of
an intention to dedicate, since he could not con-
veniently leave it open to those persons coming to his
own premises and close it as against all others.'*'* And
the owner's mere acquiescence in the use of land by the
public for purposes of travel or recreation can furnish
but slight evidence of dedication when such land is un-
enclosed land, not in use for purposes of cultivation or
otherwise.^"'^ That, on the other hand, one whose land is
42. See per Blackburn J. in 25 Ore. 133, 22 L. R. A. 736, 42
Greenwich Board of Works v. Am. St. Rep. 772; Columbia & P.
Maudslay, L. R. 5 Q. B. 404. S. R. Co. v. Seattle, 33 Wash. 513,
43. Barraclough v. Johnson, 8 74 Pac. 670.
Ad. & El. 99; Wooster v. Fiske, 45. Tutwiler v. Kendall, 113-
115 Me. 161, 98 Atl. 378; Carpen- Ala. 664, 21 So. 332; Latham v.
ter V. City of St. Joseph, 263 Mo. Los Angeles, 87 Cal. 514, 25 Pac.
705, 174 S. W. 53. 673; Ely v. Parsons, 55 Conn. 83,
44. Irwin v. Dixion, 9 How. 10 Atl. 499; Savannah v. Standard
(U. S.) 10, 13 L. Ed. 25; Loomis Fuel Supply Co., 140 Ga. 353, 78
V. Connecticut Ry. & Lighting Co., S. E. 906; Kyle v. Logan, 87 111.
78 Conn. 156, 61 Atl. 539; Georgia 64; Hansen v. Green, 275 111. 221.
R. R. & Banking Co. v. Atlanta. 113 N. E. 982; State v. Kansas
118 Ga. 486, 45 S. E. 256; Chicago City etc. R. Co., 45 Iowa, 139;
V. Chicago, R. I. & P. R. Co., 152 Tucker v. Conrad, 103 Ind. 349,
111. 561, 38 N. E. 768; Pennsylvania 2 N. E. 803; Rathinan v. Noren-
Co. V. Plotz, 125 Ind. 26, 24 N. E. berg, 21 Neb. 467, 32 N. W. 305;
343; Bradford v. Fultz, 167 Iowa, Hutto v. Tiildall. 6 Rich. L. (S.
686, 149 N. W. 925; Durgin v. C.) 396; Gulf C. & S. F. R. Co. v.
Lowell, 3 Allen (Mass.) 398; Rail- Montgomery, 85 Tex. 6f. 19 R. W.
road V. Roseville, 76 Ohio St. 108, 1015.
81 N. E. 178; Lewis v. Portland,
186G Keal Peopeety. [§ 482
for the most part enclosed, leaves outside his fence a
strip suitable for passage, not apparently for his own
convenience, and acquiesces in the public use of that
strip, may frequently justify the inference of an inten-
tion on his i)art to dedicate such strip to the public
use.^*'
In some jurisdictions it has been asserted that if the
owner of land acquiesces in the public use thereof for
such a length of time that the public accommodation
and private rights might be materiall}^ affected by an
interruption of the enjoyment, an intention to dedicate
may be presumed.^^ This statement, borrowed, directly
or indirectly, from a dictum in an early case in' the
Supreme Court of the United States,^'^ appears to be
somewhat opposed to the cases above referred to, in
which it is decided that the fact of user alone is not
sufficient of itself to show a dedication,^^ and it is dif-
ficult to see how the possibility of detriment to public
or private interests by reason of the interruption of
the use can have a bearing upon the question whether
there has been a dedication, a question of the land-
owner's intention.^"
46. See McCracken v. Joliet, Marion v. Skinman, 127 Ind. 130,
271 111. 270, 111 N. E. 131; Carl- 11 L. L. A. 55, 26 N. E. 676;
son V. Allen, 90 Kan. 457, 135 Cromer v. State, 21 Ind. App. 502,
Pac. 669; Neal v. Hopkins, 87 52 N. E. 239; State v. Wilson, 42
Md. 19, 39 Atl. 322; Boonville Me. 9; Case v. Favier, 12 Minn.
Special Road Dist. v. Fuser, 184 89; Parrish v. Stephens, 1 Ore.
Mo. App. 634, 171 S. W. 962; 59; Hughes v. Providence etc. R.
Benton v. St. Louis, 217 Mo. 687, Co., 2 R. I. 493; Johnson City v.
118 S. W. 418, 129 Am. St. Rep. Wolfe, 103 Tenn. 277. 52 S. W.
561; Robison v. Gebauer, 98 Neb. 991; Whittaker v. Ferguson, 16
196, 152 N. W. 329; Johnson City Utah, 240, 51 Pac. 980; Richmond
V. Wolfe, 103 Tenn. 277, 52 S. W. v. Stokes, 31 Gratt. (Va.) 713;
991; Schettler v. Lynch, 23 Utah, Roundtree v. Hutchinson, 57
305, 64 Pac. 955; Humphrey v. Wash. 414, 27 L. R A.. (N. S.)
Krutz, 77 Wash. 152, 137 Pac. 875, 107 Pac. 345.
806. 48. Cincinatti v. White, 6 Pet.
47. Macon v. Franklin, 12 Ga. 431
239; Chicago v. Wright, 69 111. 49. Ante, this section, note 39.
318; Indianapolis v. Kingsbury, 50. See Hayden v. Stone, 112
101 Ind. 200, 51 Am. Rep. 749; Mass. 346.
§ 482]
Dedication.
186<
That the public user has been aceomiianied by ex-
penditures on the part of the municipal authorities, to
adapt the land to such user, and that the land owner
knew of such expenditures, and acquiesced therein,
would appear to be a consideration indicative of an
intention on his part to dedicate, or perhaps operative
to preclude him from denying such intontion.^i
That the owner of land continues to pay taxes
thereon,"^- or that he makes a conveyance of thQ land,^^
may tend to rebut any inference that he has dedicated
it to public use. That he has maintained a gate or
bars across the land, thus interfering more or less with
any public user thereof, is evidence in rebuttal of any
rights in the public,'^^ though not conclusive in this
regard.^^
51. See Eldridge v. Collins, 75
Neb. 65, 105 N. W. 1085; Harris
V. Commonwealth, 20 Gratt. (Va.)
833; McKenzie v. Gilmore, — (Cal.)
— , 33 Pac. 262; State v. Birming-
ham, 74 Iowa, 411, 38 N. W. 121;
Raymond v. Wichita, 70 Kan. 523,
79 Pac. 323; Rex v. thomas, 7
El. & Bl. 39&.
52. Mansur v. State, 60 Ind.
357; City of Topeka v. Cowee, 48
Kan. 345, 29 Pac. 560; Case v.
Favier, 12 Minn. 89 (Gil. 48);
Bauman v. Boeckeler, 119 Mo. 189,
24 S. W. 207; Eugene v. Lowell,
72 Ore. 237, 143 Pac. 903. But
payment of taxes is but slight
evidence against a dedication. See
Rhodes v. Town of Brightwood!,
145 Ind. 21, 43 N. E. 942; Getchell
V. Benedict, 57 Iowa, 121, 10 N.
W. 321; San Leandro v. Le
Breton, 72 Cal. 170, 13 Pac. 405;
City of Ottawa v. Gentzer, 160 111.
509, 43 N. E. 601.
53. Hall V. City of Baltimore.
56 Md. 187; Case v. Favier, 13
Minn. 89 (Gil. 48).
54. Rugby Charity Trustees v.
Merry weather, 11 East 375 note;
Jones V. Phillips, 59 Ark. 35,
26 S. W. 386; Cook v. Sudden, 94
Cal. 443, 29 Pac. 949; Bidinger v.
Bishop, 76 Ind. 244; Gray v.
Haas, 98 Iowa, 502, 67 N. W. 394;
State V. Adkins, 42 Kan, 203, 21
Pac. 1069; Cyr v. Madore, 73 Me.
53; Com. v. Newbury, 2 Pick.
(Mass.) 51; Field v. Mark, 125
Mo. 502, 28 S. W. 1004; Carpenter
V. Gwynn, 35 Barb. (N. Y.) 395;-
Lewis v. Portland, 25 Ore. 133,
42 Am. St. Rep. 772, 22 L. R. A.
736, 35 Pac. 256; Wickre v. In-
dependence, 31 S. D. 623, 141
N. W. 973.
55. People v. Eel River etc.
R. Co., 98 Cal. 665. 33 Pac. 728;
Indianapolis v. Kingsbury, 101
Ini. 200, 51 Am. Rep. 749; Brad-
ford v. Fultz, 167 Iowa, 686, 149
N. W. 925; Eldridge v. Collins.
75 Neb. 65, 105 N. W. 1085. But
that the maintenance of gates
and bars, in four different places
within a distance of half u mile
1868
Eeal Peoperty.
[§ 482
Sales with reference to plat. As a general
rule, if the owner of land lays it off into lots, with
streets and alleys intersecting the same, and thereafter
sells lots with reference to such streets and alleys, or
with reference to a plat on which they appear, he is
regarded as having dedicated to the public the land
covered by such street and alleys,^*' and a like result
has been held to follow if he sells lots with reference
to a plat made by another.^ ^ But that the owner of
conclusively excluded an infer-
ence of dedication, see Jones v.
Davis, 35 Wis. 376.
56. Irwin v. Dixion, 9 How.
(U. S.) 10, 31, 13 L. R. A. 25;
South & N. A. R. Co. V. Davis,
185 Ala. 193, 64 So. 606; Balmat
V. Argenta, 123 Ark. 175, 184
S. W. 445; Porter v. Carpenter,
39 Fla. 14, 21 So. 788; Fossion
V. Landry, 123 Ind. 136, 24 N.
E. 96; Schick v. West Davenport
Imp. Co., 167 Iowa, 294, 145 N.
W. 689, 149 N. W. 451; Bartlett
V. City of Bangor, 67 Me. 460;
Mayor & City Council of Balti-
more V. Frick, 82 Md. 77, 33
Atl. 435; Briel v. City of Natchez,
48 Miss. 423; Harrington v. Man-
chester, 76 N. H. 347, 82 Atl. 716;
Ridgefield Park v. New York, S.
& W. R. Co., 85 N. J. L. 278, 89
Atl. 773; In re Hunter, 163 N.
Y. 542, 57 N. E. 735; Sexton v.
Elizabeth City, 169 N. C. 385, 86
S. E. 344; Meier v. Portland Cable
Ry. Co., 16 Ore. 500, 1 L. R. A.
856, 19 Pac. 610; Quicksall v.
City of Philadelphia, 177 Pa. 301,
35 Atl. 609; Chambersburg Shoe
Mfg. Co. v. Cumberland Valley R.
Co., 240 Pa. 519, 87 Atl. 698;
Brown v. Curran,— (R. I.) — 83
Atl. 515; City of Elkins v. Dono-
hoe. 74 W. Va. 335, 81 S. E. 1130.
Likewise a part or square
shown on a plat with reference
to which lots have been sold has
been regarded as dedicated.
Frauenthal v. Slaten, 91 Ark. 350,
121 S. W. 395; Davidow v. Gris-
wold, 23 Cal. App. 188. 137
Pac. 619; East Atlanta Land
Co. V. Mower, 138 Ga. 380, 75
S. E. 418; New Orleans v.
Carrolton Land Co., 131 La.
1092, 60 So. 695; Northport
Grove Camp meeting Ass'n v.
Andrews, 104 Me. 342, 20 L. R. A.
(N. S.) 976, 71 Atl. 1027; Cush-
wa V. Williamsport, 117 Md. 306.
83 Atl. 389; Atty. Gen. v. Abbott,
154 Mass. 323, 13 L. R. A. 251, 28
N. E. 346; Pondler v. Minnea-
polis, 103 Minn. 479, 115 N. W.
274; Ramstad v. Carr, 31 N. D.
504, L. R. A. 1916B, 1160, 154
N. W. 195; Lueders v. Town of
Tenino, 49 Wash. 521, 95 Pac.
1089; as has a wharf, under like
circumstances. City of Pittsburg
V. Epping — Carpenter Co., 194 Pa.
318, 45 Atl. 129. But see Palen
V. Ocean City, 64 N. J. L. 669,
46 Atl. 774.
57. Hall" V. Breyfogle, 162 Ind.
494, 70 N. E. 883; Thomas v.
Metz, 236 111. 86, 86 N. E. 184;
Longworth v. Sedevic, 165 Mo.
221, 65 S. W. 260; Clark v. Eliza-
§ 482]
Dedication.
1869
land makes a plat thereof, without making any sales in
accordance therewith, has been usually regarded as not
involving a dedication,^^ in the absence of a statutory
provision for dedication by the filing of a plat.^^ That
a dedication may result from sales with reference to a
plat it is unnecessary, it has been decided, that the
spaces asserted to be dedicated be marked on the plat
as streets alleys or squares, it appearing from a con-
sideration of the plat as a whole, with reference to
the surrounding circumstances, that the spaces were
intended to be devoted to a public use.^**^
In a considerable number of the cases in which this
doctrine of dedication by sales with reference to a
plat has been asserted, the rights of individual pur-
chasers of lots only were in question, but their rights,
as against their vendor, to have the streets and other
public places kept open, in accordance with the plat on
the strength of which they made their purchases, is to
beth, 40 N. J. L. 172; Wyman v.
Mayor of New York, 11 Wend. (N.
Y.) 486; Oregon City v. Oregon &
C. R. Co., 44 Ore. 165, 74 Pac.
924; City of Pittsburg v. Epping
Carpenter Co., 194 Pa. 318, 45 Atl.
129; Deadwood v. Whittaker, 12
S. Dak. 515, 81 N. W. 908; Corsi-
cana v. Zorn, 97 Tex. 317, 78 S.
W. 924.
58. United States v. Chicago, 7
How. (U. S.) 185, 12 L. R. A.
660; Webb v. Demopolis, 95 Ala.
116, 21 L. R. A. 62, 13 So. 289;
Town of Holly Grove v. Smith, 63
Ark. 5, 37 S. W. 956; People v.
Reed, 81 Cal. 70, 15 Am. St. Rep.
22, 22 Pac. 474; Baltimore &
Ohio S. W. Ry. Co. v. Seymour,
154 Ind. 17, 55 N. E. 953 (sem
ble) ; Bennett v. Seibert, 10 Ind.
App. 369, 35 N. E. 35; Rowan v.
Portland, 8 B. Mon. (Ky.) 232;
Quirk V. Miller, 129 La. 1071, 57
2 R. P.— 43
So. 521; Whitworth v. Berry, 69
Miss. 882, 12 So. 146; New York
& L. B. R. Co. V. Borough of
South Amboy, 57 N. J. L. 252,
30 Atl. 628; Nodine v. Union, 42
Ore. 613, 72 Pac. 582; Patterson
V. Peoples Natural Gas. Co., 172
Pa. St. 554, 33 Atl. 575.
59. Post, notes fi3a-66.
59a. East Birmingham Realty
Co. V. Birmingham Machine &
Foundry Co., 160 Ala. 461, 49 So^
448; Los Angeles v. McCollum,
156 Cal. 148, 23 L. R. A. (N. S.)
387, 103 Pac. 914; Kimball v.
Chicago, 253 111. 105, 97 N. E.
257; Indianapolis v. Kingsbury,
101 Ind. 200, 51 Am. Rep. 749;
Hanson v. Eastman, 21 Minn. 509;
Bu.schmann v. City of St. Louis,
121 Mo. 523, 26 S. W. 687; Weger
V. Delran, 61 N. J. L. 224, 39 Atl.
730.
1870 Eeal Peoperty. [§ 482
be sustained upon a different theory,"^ and it is
unnecessary, in such a case, to introduce any reference
to tlie doctrine of dedication. Many of the cases, how-
ever, which assert this doctrine of dedication by sales
with reference to a plat, involve the rights of the
public generally, or of the municipality as representa-
tive of the public, and that such sales do usually in-
volve a dedication in accordance with the plat may
be regarded as settled in most, if not all, of the states.
It is to be regretted that, of the great number of cases
in which a dedication by sales in accordance with a
plat is asserted, none, so far as the writer has ob-
served, undertake to explain why such sales should
operate as effecting a dedication, why, for instance, the
fact tliat the owner of land has sold two or three lots
with reference to a plat, and has thereby subjected him-
self to obligations in favor of the purchasers as re-
gards the streets depicted on the plat, is to be re-
garded as showing an intention to create rights in such
streets in favor of the public generally. The doctrine
had its origin, it may be suspected, in a failure to
distinguish between the rights of the individual pur-
chasers and of the public, as when the courts said, as
they have not infrequently said, that the sale of lots
with reference to a plat involves a dedication of the
lots in favor of the purchasers, thus ignoring the well
settled principle that land cannot be dedicated for the
benefit of particular members of the public.*'^ The ex-
pression "dedication" having thus been introduced to
express the result of such sales in favor of individuals,
it was to be expected that, as time went on, such sales
should come to be regarded as effecting a dedication for
all purposes.^2
60. Ante, § 366(b). 62. That such sales effect a
61. See the remarks in People dedication appears to be negativ-
V. Reed, 81 Cal. 70, 15 Am. St. ed in Washington. See Smith v.
Rep. 22, 22 Pac. 474; Prescott v. King County, 80 Wash. 273, 141
Edwards, 117 Cal. 298, 59 Am. St. Pac. 695.
Rep. 186, 49 Pac. 178.
§ 482] Dedication. 1871
Description with reference to street. That in
selUng or conveying land, it is described by reference
to a suppositious street, or extension of a street, which
has not actually been opened, does not, it seems, neces-
sarily involve a dedication of land for such street,<52a
though it would no doubt ordinarily give the pur-
chaser a right of way in the land so referred to as a
street, if the vendor is the owner thereof.''^
Statutory dedication. In the statutes author-
izing the record of a plat of a subdivision of land made
by the owner thereof,*^'^'' there is usually a provision
that the strips or pieces of land which the owner, as
indicated on the plat, intends shall be used by the public
for streets, parks, and the like, shall be regarded as
dedicated to the public. These statutes usually contain
minute requirements in regard to the form and authenti-
cation of the plat, and, if these requirements are not
complied with, the plat does not constitute a statutory
dedication, though it may, in connection with sales of
land with reference thereto, or other acts, constitute
evidence of a common-law dedication."*
A statutory dedication by the recording of a plat
differs from a common-lsiw dedication in that it in-
volves a direct conveyance of the legal title, the owner-
ship of the land, to that extent, to the municipality,
while in the case of a common-law dedication the legal
ownership is not affected, there being vested in the
62a. Hoole v. Atty. Gen., 22 238 Pa. 504, 86 Atl. 278; Felin
Ala. 190; Mobile v. Fowler, 147 v. Philadelphia, 241 Pa. 164, 88
Ala. 403, 41 So. 468 (semble) ; Atl. 421; Rathmun v. Halfman, 58
Cerf V. Pfleging, 94 Cal. 131, 29 Tex. 551. Contra, Flershelm v.
Pac. 417; Owensboro v. Muster, Baltimore, 85 Md. 489. ;J6 Atl.
Ill Ky. 856, 64 S. W. 840; City of 1098; Philadelphia, B. & W. R.
Omaha v. Hawver, 49 Neb. 1, 67 Co. v. Baltimore, 124 Md. 635, 93
N. W. 891; Atlantic City v. Groff, Atl. 146; Whyte v. City of St.
68 N. J. L. 670, 54 Atl. 800; In re l^ouis, 153 Mo. 80, 54 S. W. 478.
Eleventh Avenue, 81 N. Y. 436; 63. Ante, § 366(a).
Jones V. Teller, 65 Ore. 328, 133 63a. Ante, § 443.
Pac. 354: Tesson v. Porter Co.,
1872
Keal Peopebty.
b) 483
public merely a privilege of iiser.^'^ In case there is no
municipality in existence at the time of a statutory
dedication, the fee, it has been said, is in abeyance until
a municipality is created.^^
§ 483. Acceptance. In order that a dedication, or
rather, an offer of dedication, may be effective for
the purpose of imposing burdens and liabilities upon
the public authorities as regards the condition and re-
pair of the property, it is ordinarily necessary that it
be accepted by the public,^'^ and, by numerous decisions,
an acceptance is also necessary in order to render the
offer of dedication irrevocable by the dedicator,^^ and
in order to give to the municipality rights of control as
regards the property.''^ In one state it has been de-
64. See Marsh v. Village of
Fairbury, 163 111. 401, 45 N. E.
236; Ruddlman v. Taylor, 95
Mich. 547, 55 N. W. 376; Hatton
V. St. Louis, 264 Mo. 634, 175 S.
W. 888; Kaufman v. Butte, 48
Mont. 400, 138 Pac. 770; Pills-
bury V. Alexander, 40 Neb. 242,
58 N. W. 859; Incorporated Vil-
lage of Fulton's Lessee v. Mehren-
feld, 8 Ohio St. 440; Kee v.
Satterfield, 46 Okla. 208. 149 Pac.
243; McCoy v. Thompson, 84 Ore.
141, 164 Pac. 589; Thorndike v.
Milwaukee Auditorium Co., 143
Wis. 1, 126 N. W. 881.
65. Post, § 486.
66. Winthrop Harbor v. Gur-
des, 257 111. 596, 101 N. E. 199.
67. City & County of San Fran-
cisco V. Calderwood, 31 Cal. 585,
91 Am. Dec. 545; City of Denver
V. Denver & S. F. Ry. Co., 17
Colo. 583, 31 Pac. 338; Rhodes v.
Town of Brightwood, 145 Ind. 21,
43 N. E. 942; Maine v. Brad-
bury, 40 Me. 154; Ogle v. City of
Cumberland, 90 Md. 59, 44 Atl.
1015; Downend v. Kansas City,
156 Mo. 60, 56 S. W. 902; State v.
Atherton, 16 N .H. 203; Atlantic
& S. R. Co. V. State Board of
Assessors of New Jersey, 80 N.
J. L. 83, 77 Atl. 609.
68. City of Los Angeles v. Mc-
Collum, 156 Cal. 148, 23 L. R. A.
(N. S.) 378, 103 Pac. 914; Riley
.V. Hammel, 38 Conn. 574; H. A.
Hillmer Co. v. Behr, 264 111. 568,
106 N. E. 481; Town of Kenwood
Park V. Leonard, 177 Iowa, 337.
158 N. W. 655; Whittington v.
Comm'rs of Crisfield, 121 Md. 387,
88 Atl. 232; Hayden v. Stone, 112
Mass. 346; MighiU v. Town of
Rowley, 224 Mass. 586, 113 N. E.
569; Price v. Town of Brecken-
ridge, 92 Mo. 378, 5 S. W. 20;
Buffalo V. Delaware, L. & W. R.
Co., 190 N. Y. 84, 82 N. E. 513;
Simmons v. Cornell, 1 R. I. 519;
Spokane v. Security Sav. Soc, 82
Wash. 91, 143 Pac. 435; Univer-
sity of Our Lady of the Sacred
Heart v. City of Watertown, 150
Wis. 505, 137 N. W. 754.
69. Schmidt v. Spaeth, 82 N.
J. L. 83 Atl. 242; Pope v. Clarke,
§ 483]
Dedication.
1873
cided that the death of the dedicator before acceptance
milhfies the dedication.'^
Some of the statutes providing for a dedication by
the record of a plat have been construed as not in-
volving any necessity of an acceptance.-^i And ac-
cording to some decisions there is a presumption of
acceptance of a dedication which is beneficial in char-
acter,'-^ a view which in effect dispenses with the neces-
sity of an acceptance in such a case. Furthermore bv
the weight of authority, a dedication effected by sales
with reference to a plat'^ cannot be revoked even
though there has been no indication of acceptance, "^^ a
122 Md. 1, 89 Atl. 387; Moore v.
Fowler, 58 Ore. 292, 114 Pac.
472; Baltimore v. Broumel, 86
Md. 153, 37 Atl. 648; Phillips v.
Stamford, 81 Conn. 408. 71 Atl.
361; Gilder v. City of Breuham,
67 Tex. 345, 3 S. W. 309.
70. People v. Johnson, 237 111.
237, 86 N. E. 676; Chicago M. &
St. P. Ry. Co. V. Chicago, 264 111.
24, 105 N. E. 702.
71. Town of Lake View v. Le
Bahn, 120 111. 92, 9 N. E. 260;
Osage City v. Larkin, 40 Kan.
206, 2 L. R. A. 56, 10 Am. St.
Rep. 186, 19 Pac. 658; Keyes v.
Excelsior, 126 Minn. 456, 148 N. W.
501; Town of Otterville v. Bente,
240 Mo. 291, 144 S. W. 822; Weep-
ing Water v. Reed, 21 Neb. 261,
31 N. W. 797; Carter v. City of
Portland, 4 Ore. 339; Sowadzki v.
Salt Lake County, 36 Utah, 127,
104 Pac. Ill; Meachem v. City of
Seattle, 45 Wash. 380, 88 Pac.
628.
72. Archer v. Salinas City, 93
Cal. 43, 16 L. R. A. 145, 28 Pac.
839; Guthrie v. Town of New
Haven, ?,1 Conn. 308; Poole v.
Commissioners of Rehoboth, 9
Del. Ch. 192, 80 Atl. 683; Abbott
V. Cottage City, 143 Mass. 521, 58
Am. Rep. 143, 10 N. E. 325;
Harrington v. Manchester, 76 N.
H. 347, 82 Atl. 716. See Phillips
V. Stamford, 81 Conn. 408, 71 Atl
361.
Such a presumption cannot, it
has been suggested exist in the
case of a highway, there being
liabilities to repair in connection
therewith. Abbott v. Cottage
City, 143 Mass. 521, 58 Am. Rep.
143, 10 N. E. 325; Wayne County
V. Miller, 31 Mich. 447. But It
might, it would seem, even then
exist for purposes other than of
Imposing a liability upon the
public. See Henderson v. Yea-
man, 169 Ky. 503, 184 S. W. 878;
Harrington v. Manchester, 76 N.
H. 347, 82 Atl. 716.
73. Ante, § 482, note 56.
74. Rulolph V. Birmingham
188 Ala. 620, 65 So. 1006; Brook-
feld V. Block, 123 Ark. 153. 184
S. W. 449; Davidow v. Griswold,
23 Cal. App. 188, 137 Pac. 619;
Boise City v. Hon. 14 Idaho, 272,
94 Pac. 167; HusfpII v. Lincoln.
200 III. 511, 65 N. E. 1088; Louis-
1874
Real Pkoperty.
[§ 483
view which is ordinarily asserted without any attemjot
to state a reason for such an exception to the ordinary
requirement of acceptance, but which is occasionally
based on the somewhat unsatisfactory theory that the
individual purchasers, by making the purchases, ac-
cept in behalf of the public the dedication made by the
sales to themJ^ It would rather seem that it is be-
cause of the creation of rights in the individual pur-
chasers, which rights are not subject to subsequent con-
trol by the vendor, and of the association which ap-
parently exists between the creation of such individual
rights and the asserted dedication in favor of the pub-
lic,'''^^ that the vendor has been regarded as unable to
revoke the dedication thus made.
The acceptance of the dedication may be by formal
action on the part of the state or municipality, as repre-
senting the public,"^^ but this is not usually necessary.
ville V. Mut. Life Ins. Co., 147
Ky. 141, 738, 143 S. W. 782, 145
S. W. 389; Bartlett v. Bangor, 67
Me. 460; Baltimore v. Frick, 82
Md. 77, 33 Atl. 435; Harrison
County Supervisors v. Seal, 66
Miss. 129, 3 L. R. A. 659, 14 Am.
St. Rep. 545, 5 So. 622; Shearer
V. City of Reno, 36 Nev. 443, 136
Pac. 705; Darling v. Jersey City,
73 N. J. Eq. 318, 67 Atl. 709;
Revard v. Hunt, 29 Okla. 835, 119
Pac. 589; Baker City Mut. Irr.
Co. V. Baker City, 58 Ore. 306, 110
Pac. 392, 113 Pac. 9; City of Pitts"-
burg V. Epping Carpenter Co., 194
Pa. 318, 45 Atl. 129; Martinez v.
City of Dallas, 102 Tex. 54, 109 S.
W. 287, 113 S. W. 1167. Contra,
Gathright v. State, 129 Ark. 339,
195 S. W. 1069; Prescott v. Ed-
wards, 117 Cal. 298, 59 Am. St.
Rep. 186, 49 Pac. 178; Eltinge v.
Santos, 171 Cal. 278. 152 Pac. 915;
Kimball v. Chicago, 253 111. 105,
97 N. E. 257; Rose v. Elizabeth-
town, 275 111. 167, 114 N. E. 14;
Steinauer v. Tell City, 146 Ind.
490, 45 N. E. 1056; Clendenin v.
Maryland Construction Co. 86 Md.
80, 37 Atl. 709; Canton Co. v.
Baltimore, 106 Md. 69, 11 L. R.
A. (N. S.) 129, 66 Atl. 681; Vil-
lage of Grandville v. Jenison, 84
Mich. 54, 47 N. W. 600; State v.
Hamilton, 109 Tenn. 276, 70 S.
W. 619.
75. Sanford v. Meridian, 52
Miss. 383; Christian v. Eugene,
49 Ore. 170, 89 Pac. 419; Highland
Realty Co. v. Avondale Land Co.,
174 Ala. 326, 56 So. 716.
75a. Ante, § 482 notes 61, 62.
76. Little Rock v. Wright, 58
Ark. 142, 23 S. W. 876; City of
Eureka v. Armstrong, 83 Cal. 623,
22 Pac. 928, 23 Pac. 1085; White
V. Smith, 37 Mich. 291; State v.
Atherton, 16 N. H. 203; State v.
City of Elizabeth, 35 N. J. L. 359;
§ 483]
Dedication.
1875
Any action on the part of the municipality showing that
it has assumed control of the land dedicated is suf-
ficient evidence of acceptance.'" Eepairs or improve-
ments made by, or under the authority of, officers who
have general charge of highways, and power to lay them
out, may show' an acceptance of the dedication of a
highway,"^^^ though repairs made by a merely subordi-
nate officer would not have such an effect."^ A mere
user by the public is sufficient, according to the weight
of authority, to justify a finding that there w^as an ac-
ceptance for most purposes,^*^ though not, according to
some cases, for the purpose of imposing any burden or
Bellenot v. Richmond, 108 Va.
314, 61 S. E. 785. In Virginia
there must, it appears, be an ac-
ceptance of record. Terry v. Mc-
Clung, 104 Va. 599, 52 S. E. 355.
77. Brewer v. City of Pine
Bluff, 80 Ark. 489, 97 S. W. 1034;
Penick v. Morgan County, 131 Ga.
385, 62 S. E. 300; People v. John-
son, 237 111. 237, 86 N. E. 676;
Burroughs v. City of Cherokee,
134 Iowa, 429, 109 N. W. 876;
Mulligan v. McGregor, 165 Ky.
222, 176 S. W. 1129; Lyons v.
Mullen, 78 Neb. 151, 110 N. W.
743; In re Hunter, 163 N. Y. 542,
57 N. E. 735; Palmer v. East
River Gas Co., 115 N. Y. App.
Div. 677, 101 N. Y. Supp. 347;
Jeffress v. Town of Greenville, 154
N. C. 490, 70 S. E. 919; Cincinnati
& L. Ry Co. V. Carthage, 36 Ohio
St. 631; Herrington v. Booth &
Flinn, 252 Pa. 70, 97 Atl. 178;
Doyle V. City of Chattanooga, 128
Tenn. 433, 4 N. C. C. A. 167, 161
S. W. 997; Spencer v. Arlington,
49 Wash. 121, 94 Pac. 904.
78. Town of Lake View v. Le
Bahn, 120 111. 92, 9 N. E. 269;
Town of Fowler v. Linguist, 138
Ind. 566, 37 N. E. 133; Wright
V. Tukey, 3 Cush. (Mass.) 290;
Kaime v. Harty, 73 Mo. 316; Du
Bois Cemetery Co. v. Griffin, 165
Pa. St. 81, 30 Atl. 840; Folsoni v.
Town of Underbill, 36 Vt. 580.
79. State v. Bradbury, 40 Me.
154; White v. Bradley, 66 Me.
254.
80. Stewart v. Conley, 122 Ala.
179, 27 So. 303; Tranmell v. Brad-
ford— (Ala.)— 73 So. 894; Hall v.
Kauffman, 106 Cal. 451, 39 Pac.
756; City of Denver v. Denver &
S. F. Ry. Co., 17 Colo. 583, 31 Pac.
338; Phillips v. City of Stamford,
81 Conn. 408, 22 L. R. A. (N. S.)
1114, 71 Atl. 361; Parsons v.
Trustees of Atlanta University, 44
Ga. 529; Consumers' Co. v. Chica-.
go, 268 111. 113, 108 N. E. 1017;
Pittsburg, C. C. & St. Ry. Co.
V. Warrum, 42 Ind. App. 217, 82
N. E. 9:54, 84 N. E. 356; Raymond
V. Wichita, 70 Kan. 523, 79 Pac
323; Riley v. Buchanan, 116 Ky.
625, 63 L. R. A. 642. 3 Ann. Cas.
788. 76 S. W. 527; Cnahwa v.
Williamsport. 117 Md. 306. 83 Atl.
389; Atty. Gen. v. Abbott, 154
Mass. 323, 13 L. R. A. 251. 28 N.
lcS76
Eeal, Property.
[§ m
liability on the municipality.^'^ Occasionally the view
has been asserted that, in order that acceptance may
be inferred from user, for any purpose whatsoever,
the user must have continued for the prescriptive
period.^^ And in some cases the question of the suf-
ficiency of user for this purpose has been said to be to a
great extent dependent on whether the public con-
venience would suffer bv a cessation of the user.^^
E. 346; Minium v. Sole!,— (Mo.) —
183 S. W. 1037; Cassidy v. Sulli-
van, 75 Neb. 847, 106 N. W. 1027;
Schmidt v. Spaeth, 82 N. J. L.
575, 83 Atl. 242; Montgomery v.
Somers, 50 Ore. 259, 90 Pac. 674;
Com. V. Moorehead, 118 Pa. 344,
4 Am. St. Rep. 599, 12 Atl. 424;
Watertown v. Troeh, 25 S. D. 21,
125 N. W. 501; Morris v. Blunt,
49 Utah, 243, 161 Pac. 1127;
Seattle v. Hinckley, 67 Wash. 273,
121 Pac. 444.
In some states, however, ptiblic
user is not regarded as sufficient
evidence of acceptance, for any
purpose. Palmer v. Palmer, 150
N. Y. 139, 55 Am. St. Rep. 653, 44
N. E. 966; Smith v. Smythe, 197
N. Y. 457, 35 L. R. A. (N. S.)
524, 90 N. E. 1121; Cincinnati &
M. V. R. Co. V. Roseville, 76 Ohio
St. 108, 81 N. E. 178; Lynchburg
Traction & Light Co. v. Guill, 107
Va. 86, 57 S. E. 644 (semble);
Chapman v. Sault Ste. Marie, 146
Mich. 23, 109 N. W. 53.
81. Pennick v. Morgan County,
131 Ga. 385, 62 S. E. 300; People
V. Commissioners, 52 111. 498;
Cochran v. Town of Shepherds-
ville,— (Ky.)— 43 S. W. 250; May-
berry V. Standish, 56 Me. 342;
Kennedy v. Mayor and City
Council of Cumberland, 65 Md.
514, 57 Am. Rep. 346, 9 Atl. 234;
Ogle V. City of Cumberland, 90
Md. 59, 62, 44 Atl. 1015; Downend
V. Kansas City, 156 Mo. 60, 51 L.
R. A. 170, 56 S. W. 902; Gilder
V. City of Brenham, 67 Tex. 345,
3 S. W. 309; Tower v. Rutland, 56
Vt. 28; Clarendon v. Rutland R.
Co., 75 Vt. 6, 52 Atl. 1057; Hast
V. Piedmont & C. R. Co., 52 W.
Va. 396, 44 S. E. 155; See Stevens
V. Nashua, 46 N. H. 192. Contra,
Ivey V. City of Birmingham, 190
Ala. 196, 67 So. 506; Guthrie v.
New Haven, 31 Conn. 308;
Phillips V. Stamford, 81 Conn.
408, 71 Atl. 361 (dictum); Benton
V. St. Louis, 217 Mo. 687, 129 Am-.
St. Rep. 560, 118 S. W. 418; Ack-
erman v. Williamsport, 227 Pa.
591, 76 Atl. 421; Kniss v. Du-
quesne Borough, 255 Pa. 417, 100
Atl. 132; Caston v. City of Rock
Hill, 107 S. C. 124, 92 S. E. 191;
Doyle V. Chattanooga, 128 Tenn.
433, 161 S. W. 997 ((licttim).
82. People v. Johnson, 237 111.
237, 86 N E. 676; Whittington v.
Comm'rs of Crisfield, 121 Md.
387, 88 Atl. 232.
83. Ivey v. City of Birming-
ham, 190 Ala. 196, 67 So. 506;
San Francisco v. Carnavan, 42
Cal. 541; Benton v. St. Louis,
217 Mo. 687, 129 Am. St. Rep. 561,
118 S. W. 418; Pence v. Bryant,
54 W. Va. 263, 46 S. E. 275.
§ 483]
Dedicatiox.
18;
The question whether there has been an acceptance
IS, like that of the offer of dedication, ordinarily one
of fact.s^
It is not infrequently said that the acceptance of
a dedication must take place within a reasonable time,
or that the public has a reasonable time for acceptance.*^
"What is a reasonable time appears to be a question of
fact in each particular case^'^ and is to be determined,
to some extent at least, by the necessity or desirability
of the public use of the land dedicated, the public beino-
under no obligation to accept the dedication before con^
ditions are ripe for its utilization of the land.^' The
delay of acceptance, to render it nugatory, nmst, it has
been said, be for such a length of time and under such
84. City of Hartford v. New
York & N. E. R. Co., 59 Conn.
250, 22 Atl. 37; Grube v. Nichols,
36 111. 92; Flack v. Village of
Green Island, 122 N. Y. 107, 25 N.
267; Downend v. Kansas City, 71
Mo. App. 529; Folsom v. Town of
Underhill, 36 Vt. 580.
85. People v. Reed, 81 Cal. 70,
91 Am. Dec. 542, 22 Pac. 474;
Rose V. Elizabethtown, 275 III.
167, 114 N. E. 14; Town of Ken-
wood Park V. Leonard, 177 Iowa,
337, 158 N. W. 655; Field v.
Manchester, 32 Mich. 279; Briel
V. City of Natchez, 48 Miss. 433;
Ramstad v. Carr, 31 N. D. 504,
L. R. A. 1916B, 1160, 154 N. W.
195.
86. H. A. Hillmer Co. v. Behr.
264 111. 568, 106 N. E. 481; Ken-
wood Park V. Leonard, 177 Iowa,
377, 158 N. W. 655; Chafee v.
City of Aiken, 57 S. C. 507, 35 S.
E. 800. So it is said that the
acceptance of the dedication need
not be within any particular time.
Henderson v. Yeaman, 169 Ky.
603, 184 S. W. 878; Beale v.
Takoma Park, 130 Md. 297, 100
Atl. 379.
In Christopherson v. Incorpo-
rated Town of Forest City, 178
Iowa, 893, 160 N. W. 691, it was
held that an acceptance thirty
years after the dedication and
twenty years after the fencing
in of the property was too late.
And in People v. Reed, 81 Cal.
70, 91 Am. Dec. 542, 22 Pac. 474,
a like view was taken of an ac-
ceptance twenty-one years after
the dedication. And in Kelley
V. Jones, 110 Me. 360, 86 Atl.
252, of an acceptance eighty years
after the dedication.
87. Lee v. Harris, 206 111. 128.
97 Am. St. Rep. 176, 69 N. E.
230; McClenehan v. Town of
Jesup, 144 Iowa, 352, 120 N. W.
74; City of Meridian v. Poole.
88 Miss. 108, 40 So. 548; Meier v.
Portland Cable Ry. Co.. 16 Ore.
500, 1 L. R. A. 856, 19 Pac. 610;
City of Ashland v. Chicago & *
N. W. Ry. Co., 105 Wis. 398, SO
N. W. 1101.
1878 Real Peoperty. [§ 483
circumstances as clearly to indicate an abandonment
of any intention to accept the offer of dedication.^'^
Since a municipality has authority, in the ordinary
case, to accept a dedication in behalf of the public, the
question whether, when the dedication is made by the
municipality, an acceptance, by public user or other-
wise, is necessary to complete the dedication, is one
of some difficulty.^^^ And the same question may arise
in coruiection with a dedication by the United States or
a state.^^ No clear and harmonious rule appears to
exist in this regard.
The question whether the dedication of a highway
has been accepted as regards its entire breadth or
length by reason of repairs on part only of its breadth
or length, or of public user of such part only, would
seem to be a question of fact, to be determined with
reference to the circumstances of the case, with a pre-
sumption perhaps, by the weight of authority, in favor
of the acceptance of the whole way as dedicated.^*'
88. Ramstad v. Carr, 31 N. D. by the United States appears to
504, L. R. A. 1916B, 1160, 154 N. be assumed in WeUs v, Penning-
W. 195. And see 129 Am. St. ton County, 2 S. D. 1, 39 Am. St.
Rep. at p. 619, note to Benton v. Rep. 758, 48 N. W. 3C5; Hatch
City of St. Louis. Bros. Co. v. Black, 25 Wyo. 109,
88a. That acceptance is neces- 165 Pac. 518. So in the case of
sary in such a case, see San a dedication by the state. Reilly
Francisco v. Calderwood, 31 Cal. v. City of Racine, 51 Wis. 526.
585, 91 Am. Dec. 542; Curtis v. 8 N. W. 417.
Hoyt, 19 Conn. 154, 48 Am. Dec. 90. People v. Langenoir, — Cal.
149; Board of Trustees of Phil- App.,— 142 Pac. 888; Ellis v.
adelphia INIuseums v. Trustees of City of Hazlehurst, 138 Ga. 181,
the University of Pennsylvania, 75 S. E. 99; McDonald v. Stark,
251 Pa. 125, 96 Atl. 126. Contra, 176 111. 456, 52 N. E. 37; Sullivan
Attorney Gen. v. Tarr, 148 Mass. v. Tichenor, 179 lU. 97, 53 N. E.
309, 2 L. R. A. 87, 19 N. B. 561; Village of Augusta v. Tyner,
358.' In Knox v. Roehl, 153 Wis. 197 lU. 242, 64 N. E. 378; Hall
239, 140 N. W. 1121, it is said v. Breyfogle, 162 Ind. 494, 70
that only slight proof of accept- N. E. 883; Kuehl v. Town of
ance is necessary in such case. Bettendorf, 179 Iowa, 1, 161 N.
89. That acceptance is neces- W. 28; Crosby v. City of Green-
sary in the case of a dedication ville, 183 Mich. 452, 150 N. W.
§ 483:]
Dedication?.
1879
In the case of a dedication for streets by the re-
cord of a plat, or the sale of lots with reference to a
jjlat, the acceptance of one or more of the streets has
occasionally been regarded as involving an acceptance
of all, in the absence of a showing of a contrary inten-
tion.^ ^ It has in one state been stated that the ac-
ceptance of one street does not show acceptance of
all,^2 and that the acceptance of those streets in one
part of the land platted does not show acceptance of
those in another part,''^ but that the acceptance of the
most important streets,^^ or of most of the streets,^^
justifies an inference that all have been accepted.
246; Kennedy v. Le Van, 23
Minn. 513; Triplett Twp. v. Mc-
Phearson, 172 Mo. App. 369, 157
S. W. 857; City of Pittsburg v.
Epping-Carpenter Co., 194 Pa. St.
318, 45 Atl. 129; Chaffee v. Aiken,
57 S. C. 507, 35 S. E. 800. In
Borough of South Amboy v. New
York & L. B. R. Co., 66 N. J.
L. 623, 50 Atl. 368, it is said
that the dedication must be ac-
cepted in whole, if accepted at
all.
On the other hand it has been
quite occasionally decided that,
in the particular case, an ac-
ceptance as to the whole did
not result from repairs on, or user
of, a part of the land dedicated.
Mobile V. Fowler, 147 Ala. 403,
41 So. 468; Hall v. Meriden, 48
Conn. 416; Kelsoe v. Oglethorpe,
120 Ga. 951, 102 Am. St. Rep.
138, 48 S. E. 366; Theissen v.
City of Lewiston, 26 Idaho, 505,
144 Pac. 548; Bell v. City of
Burlington, 68 Iowa, 296, 27 N.
W. 245; Wayne County v. Miller,
31 Mich. 447; Commonwealth v.
Royce, 152 Pa. St. 88, 25 Atl.
162; Ashland v. Chicago & N. W.
Ry. Co., 105 Wis. 398, 80 N. W.
1101.
91. Village of Lee v. Harris,
206 111. 428, 99 Am. St. Rep.
176, 69 N. E. 230; Parriott v.
Hampton, 134 Iowa, 157. Ill N.
W. 440; Heitz v. City of St. Louis,
110 Mo. 618, 19 S. W. 735; Derby
V. Ailing, 40 Conn. 410; City of
Jackson v. Laird, 99 Miss. 476,
55 So. 41. But see Kelsoe v.
Oglethorpe, 120 Ga. 951, 102 Am.
St. Rep. 138, 48 S. E. 366; Wolf-
skill V. Los Angeles County, SC>
Cal. 405, 24 Pac. 1094; Kennedy
V. Mayor and City Council of
Cumberland, 65 Md. 514, 57 Am.
Rep. 346, 9 Atl. 234.
92. Rose V. Elizabethtown, 275
111. 167, 114 N. E. 14; Casey v.
Chicago, 263 111. 147, 104 N. E.
1025.
93. Chicago, M. & St. P. Ry.
Co.. 264 111. 24, 105 N. E. 702.
94. Kimball v. Chicago, 253
111. 105, 97 N. K. 257; Dewey v.
Chicago, 274 111. 268, 113 N. E.
599.
95. Consumers' Co. v. Chicago,
268 in. 113, 108 N. E. 1017.
1880 Eeal Property. [§ 484
§ 484. Dedicaticn distinguished from estoppel. It
is frequently asserted that the doctrine of dedication is
based upon the theory of estoppel in pais, but this
would seem to be incorrect.^^ The doctrine of dedica-
tion was recognized earlier than the doctrine of esto^j-
pel in pais,^' and the former doctrine is perfectly com-
prehensible without reference to the latter. One who
indicates, by his course of conduct, an intention to de-
vote his property to j)ublic use, thereby effects a dedica-
tion, just as one who, by executing an instrument of
conveyance in favor of an individual, indicates an in-
tention to transfer to him an estate in land, effects such
transfer. In neither case can it properly be said that,
because the expression of intention in accordance with
legal requirements results in effecting the intention, an
estoppel in pais is involved. So when it is said, as it
occasionally is said, that one whose acts are such as
to show an intention to dedicate, is estopped to deny
such intention, the introduction of the theory of estop-
pel appears entirely unnecessary. Such a case in-
volves merely an application of a general rule that, for
legal purposes, one's intention is such as his acts would
lead a reasonable man to believe to be his intention. ^^
The only case, it is submitted, in which it is at all
appropriate to refer to the theory of estoppel in this
connection is that, above referred to,^^ of a dedication
by sales with reference to a plat, in which case the dedi-
cation appears to be, in some way not explained, a
96. As is well stated In An- 2; Ewart, Estoppel, p. 7. As
gell, Highways, § 156. before remarked <^ante, § 479,
97. The doctrine of dedication note la), the doctrine of
was recognized in express terms dedication presumably was recog-
in Lade v. Shepherd, 2 Strange nized in principle, if not by name,
1004, an action of trespass, decid- early in the history of English
ed anno 1735. Estoppel in pais, law.
or equitable estoppel, received its 98. See 4 Wigmore, Evidence,
first explicit recognition in courts § 2413.
of law in the nineteenth century. 99. Ante, § 482, note 56.
See Bigelow, Estoppel, ch. 18, §
§ 485] Dedication. 1881
result of the vendor's asserted estoppel, as against the
purchasers, to deny the existence of ways and spaces
as indicated on the plat.
Although, as just stated, the doctrine of dedication
is properly independent of that of estoppel, the fact
that the public have been allowed to utilize the land
as if it has been dedicated to public use may, under
particular circumstances, operate to prevent or estop
the owner from interrupting such use. In such a case
the court is quite as likely to state that the user of the
land by the public for the particular puri>ose shows a
dedication for that purpose, as to say that the land-
owner is estopped to prevent the continuance of such
user. For instance, in the ca&e of land which has been
used, without dissent by the owner, for the purpose of
a cemetery, a finding of dedication is no doubt usually
based, to a considerable extent at least, upon considera-
tions which appertain properly to the doctrine of es-
toppel rather than to that of dedication. A dedication
is found to have been made by reason of circumstances
which would properly estop the owner to deny that it
was made. For the purpose of the particular case the
confusion of the two doctrines is immaterial, but for
the purpose of scientific discussion it is much to be
deprecated.^
§ 485. Qualified and conditional dedication. A
dedication may be made subject to reservations in favor
of the dedicator or to restrictions upon the freedom of
use of the land by the public. Thus it has been held that
a highway may be dedicated, to be used only at certain
seasons,^ or subject to a right in the dedicator oi- in
others to use the land for certain ])urp()ses, or at cer-
tain times.^ And the dedication of a liighway may be
1. See the admirable discus- Y. 347, 17 L. R. A. 454. T2 N.
sion in the editorial note in 16 E. 78.
Harv. Law Rev. at p. 128. 3. Mercer v. Woodgate. I.. R.
2. Hughes V. Bingham, 135 N. 5 Q. B. 26; Arnold v. Blaker, I-.
1882 Ekal Property. [§ 485
made, not for general highway purposes, but for use
by pedestrians only, or for a certain class of vehicles.*
But there may be a restriction imposed by the dedicator
upon the control or user of the land by the public so
far reaching in its nature as to be inconsistent with
the very nature and purpose of a dedication.
In cases in which land was dedicated for a highway,
a reservation, in favor of the dedicator, of a right to
locate and maintain, or to enable others to locate and
maintain, railway tracks in the highway, has ordinarily
been regarded as valid,^ while on the other hand a
general reservation of the control of public utilities
in connection with the highway has not been upheld.^
A stipulation that the j)ublic user of the highway shall
be subject to certain specific restrictions on the power
to remove trees or grass from parts of the land has
been supjDorted.'^ A jDrovision, in connection with the
dedication, that the municipality shall make certain
improvements has been given effect as a condition
R. 6 Q. B. 433; City of Nobles- Ayres v. Pennsylvania R. Co., 48
ville V. Lake Erie & W. R. Co., N. J. L. 44, 57 Am. Rep. 538,
130 Ind. 1, 29 N. E. 484; City of 3 Atl. 885; 52 N. J. L. 405, 20
Dubuque v. Benson, 23 Iowa, 248; Atl. 54; Tallon v. Hoboken, 59
Atlantic City v. Associated Real- N. J. L. 383, 60 N. J. L. 212, 37
ties Corp. 73 N. J. Eq. 721, 17 Ann. Atl. 895; Oklahoma City & T.
Cas. 743, 70 Atl. 345; City of R. Co. v. Dunham, 39 Tex. Civ.
Cohoes V. President, etc., Dela- 575, 88 S. W. 849. And so, ap-
ware & H. Canal Co., 134 N. Y. parently, a reservation of a right
397, 31 N. E. 887. to place a canal in the highway
4. Stafford v. Coyney, 7 Barn. may be valid. City of Cohoes v.
& C. 257; Home Laundry Co. President, etc. Delaware & H.
V. Louisville, 168 Ky. 479, 182 Canal Co., 134 N. Y. 397, 31 N.
S. W. 645; Hemphill v. Boston, E. 887.
8 Cush. (Mass.) 195; Tyler v. 6. Jones v. Carter, 45 Tex.
Sturdy, 108 Mass. 196; Trustees Civ. App. 450, 101 S. W. 514;
of Methodist Episcopal Church of Bradley v. Spokane & I. E. R.
Hoboken v. City of Hoboken, 33 Co., 79 Wash. 455, 140 Pac. 688.
N. J. L. 13, 97 Am. Dec. 696. 7. Avis v. Borough of Vine-
5. Noblesville v. Lake Erie & land, 56 N. J. L. 474, 23 L. R. A.
W. Ry. Co., 130 Ind. 1, 29 N. E. 685, 28 Atl. 1039; Young v.
484; Arn v. Chesapeake & O. Ry., Landis, 73 N. J. L. 266, 62 Atl.
171 Ky. 157, 188 S. W. 340; 1133.
§ 485] Dedication. 1883
precedent to the vesting- of rights iu the puhlic,^ as
has a provision that otlier owners of land shall dedicate
for the same public purpose.^ A stipulation relieving
the dedicator from liability for aii}^ part of the cost of
adapting the land to the public use has been upheld.^''
That a stipulation in favor of the dedicator, made
at the time of dedication, is invalid, does not ordinarily
invalidate the dedication.^ ^ But a stipulation for a
right to revoke the dedication has been regarded as
showing an intention not to dedicate.^- And there is.
evidently no dedication when the owner of the land
retains the power to determine in the future what part
of the land shall be devoted to the public use.^-'
Although, by a statutory dedication, the ownership
of the land dedicated would otherwise be vested in the
municipality,^^ the dedicator may, it has been decided,
by an express provision on the plat, retain the owner-
ship, a right of user merely being vested in the public,' ^'^
and he may, likewise, it seems, expressly retain the
minerals in the land dedicated,^^ the ownership of
which would otherwise be vested in the municipality.^"
8. People V. WiUiams, 64 Cal. of Charlestown, 4:5 W. Va. 796,
498. 2 Pac. 393; Jenkins County 28 S. E. 831; State v. Spokane
V. Dickey, 139 Ga. 91, 76 S. E. St. Ry. Co., 19 Wash. 518, 41 L.
856. R. A. 515, 67 Am. St. Rep. 739,
9. Peoples' Gas Light & Coke 53 Pac. 719.
Co. V. Chicago, 255 111. 612, 99 N. 12. San Francisco v. Canavan,
E. 703; St. Louis v. Meier, 77 Mo. 42 Cal. 541.
13; Jacobs Pharmacy Co. v. 13. Niagara Falls Suspension
Luckie. 143 Ga. 457, 85 S. E. 332. Bridge v. Bachman, 66 N. V. 261.
10. Perth Amboy Trust Co. v. 14. Ante. § 482, note 64.
Perth Amboy, 75 N. J. L. 291, 15. Dubuque v. Benson, 23
68 Atl. 84. See the comments on Iowa, 248.
this case in 21 Harv. Law Rev. 16. Brown v. City of Cartilage,
at p. 357. Compare Richards v. 128 Mo. 10, 30 S. W. 312; Dubu-
Cincinnati, 31 Ohio St. 506. que v. Benson, 23 Iowa, 248.
11. City of Noblesville v. Lake 17. Des Moines v. Hall. 24
Erie & W. R. Co., 130 Ind. 1, 29 Iowa, 234; Zinc Co. v. City of
N. E. 484; Des Moines v. Hall, 24 La Salle, 117 111. 411, 2 N. K.
Iowa, 234; Richards v. Cincinnati, 406, 8 N. E. 81; Hawesvllle v.
31 Ohio St. 506; Riddle v. Town Iliiwes' Heirs. 6 Bush. (Ky.)
]884
Eeal Pkoperty.
[§ 486
§ 486. Effect of dedication. A common law dedi-
cation for highway purposes/^ or even for a park,
common, or sqnare,^^ does not affect the ownership
of tlie land, but merely gives to the public a right of nser
therein. When, however, land is dedicated for a pur-
pose which excludes the idea of its use by any and every
individual, as in the case of a dedication for a school,
church, or cemetery, the corporation or association
which carries out the purpose of the dedication must
have an exclusive control of the land which is practi-
cally equivalent to possession thereof.^" In some states
the view has been taken that in the case of land dedi-
cated for a park,^^ or even for a highway ,^^ the munici-
pal corporation which controls the land so dedicated in
behalf of the public has a right of possession therein
which entitles it to maintain ejectment against an in-
truder thereon, a view which is not entirely satis-
232. But see Leadville v. Bohii
Mining Co., 37 Colo. 248, 8 L- R-
A. (N. S.) 422, 11 Ann. Cas. 443,
86 Pac. 1038.
18. Lade v. Shepherd, 2 Strange
1004; City of San Francisco v.
Calderwood, 31 Cal. 585. 91 Am.
Dec. 542; Robbins v. White, 52
Fla. 613, 42 So. 841; Indianapolis,
B. & W. R. Co. V. Hartley, 67
III. 439; Farwell v. Chicago, 247
HI. 235, 93 N. E. 168; Wilder v.
City of St. Paul, 12 Minn. 192;
Charleston Rice Milling Co. v.
Bennett, 18 S. C. 254.
19. Cincinnati v. White, 6 Pet.
(U. S.) 431, 8 L. R. A. 452; At-
torney General v. Abbott, 154 Mass.
323, 13 L. R. A. 251, 28 N. E. 346;
Porter v. International Bridge Co.,
200 N. Y. 234, 93 N. E. 716; Pome-
roy V. Mills, 3 Vt. 279, 23 Am. Dec.
207; Raleigh County Sup'rs v.
Ellison, 8 W. Va. 308.
20. It has accordingly been
decided that one who has dedicat-
ed land for a cemetery has there-
after no such right to possession
of the land as to be entitled to
maintain ejectment. Campbell v.
City of Kansas, 102 Mo. 326, 10
L. R. A. 593, 13 S. W. 897;
Hunter v. Trustees of Sandy Hill,
6 Hill. (N. Y.) 407.
21. Methodist Episcopal Church
V. Hoboken, 33 N. J. L. 13, 97
Am. Dec. 696; Price v. Plain-
field, 40 N. J. L. 608.
22. Visalia v. Jacob, 65 Cal.
434, 52 Am. Rep. 303, 4 Pac. 433;
City and County of San Fran-
cisco V. Grote, 120 Cal. 59, 41 L.
R. A. 335, 65 Am. St. Rep. 155,
52 Pac. 127; Lee v. Harris, 205
111. 428, 99 Am. St. Rep. 176,
69 N. E. 230; Winona v. Huff,
11 Minn. 119; Hoboken Land &
Improvement Co. v. Hoboken,
36 N. J. L. 540; Ocean Grove
§ ^^^^ Dedication. 1885
factory from the standpoint of principle.-^ It is some-
what difficult to see how a mere right of user in the
public can confer on the municipality a right of
possession, sufficient to sustain ejectment, it being con-
ceded that a private individual having a mere right of
user, that is, an easement, can have no such right ol
possession. Even though the public right of user is
of such character and extent as entirely to preclude
any user of the land by the dedicator, or by his suc-
cessor in interest, it seems desirable, for the purpose of
legal theory, to deny the element of possession to a
mere right of using the land.
The statutes in regard to dedication by the re-
cording of a plat frquently provide that the owner-
ship of the land, and not a mere right of user, shall
be vested in the municipality in trust for the public.-*
Under such a statute the title to the land is properly to
be regarded as passing by way of grant or conveyance,
rather than by way of dedication, as the term was
understood at common law. The statute makes the
plat in eifect a conveyance of the land which purports to
be devoted to j)ublic use.
AVhether the ownership or merely a right of user
is vested in the public, the land cannot be aliened by
Camp Meeting Ass'n v. BerthaH, 481, 50 Am. Rep. 119, 21 N. W.
63 N. J. L. 312, 43 Atl. 887. 520.
23. For contrary decisions, see 24. See Leadville v. Bohn SUn.
Savannah v. Steamboat Co., R. Co., 37 Colo. 248, 86 Pac. 1038:
M. Charlt. (Ga.) 342; Covington Gebhardt v. Reeves, 75 lU. 301;
V. Freking, 8 Bush. (Ky.) 121; City of Pella v. Scholte, 21
Bay County v. Bradley, 39 Midi. Iowa, 463; Hutchinson v. Danley,
133, 33 Am. Rep. 367; Canton Co. 88 Kan. 437, 129 Pac. 163; VII-
V. City of Baltimore, 106 Md. lage of Grandville v. Jenson, 84
69, 66 Atl. 679, 11 L. R. A. (N. Mich. 54, 47 N. W. COO; City o?
S.) 129, 67 Atl. 274; South- Winona v. Huff, 11 Minn. 119;
ampton v. Betts, 163 N. Y. 454, Carroll v. Elmwood. 88 Neb. 352.
57 N. E. 762; Street Comm'rs v. 129 N. W. 537; Incorporated Vil-
Taylor, 1 Brev. (S. C.) 129; lage of Fulton's Lessee v. Mehren-
Racine v. Crotsenberg, 61 Wis. feld. 8 Ohio St. 440.
1886
Eeal Peoperty.
[§ 486
the public authorities to individuals,-'^ nor used for
purposes other than those for which it was dedicated.^®
A use of the land by the public authorities for
l)urposes other than those contemplated in the dedica-
tion will be restrained upon the application of owners
of other land injured by such change of use^"^ and a
suit for this purpose may be maintained by the dedi-
cator, it seems, in case the ownership of the land is
still in him,-^ but not if, under the statute, the owmer-
25. Douglass v. City Council
of Montgomery, 118 Ala. 599, 43
L. R. A. 376, 24 So. 745; Rudolph
Herman Co. v. City and C.ounly
of San Francisco, 154 Cal. 688,
99 Pac. 169; City of Alton v.
Illinois Transp. Co., 12 111 38,
52 Am. Dec. 479; Trustees of
August V. Perkins, 3 B. ^^oil.
(Ky.) 437; Cummings v. City of
St. Louis, 90 Mo. 259, 2 S. W.
130; Haberly v. Treadgcld, 67
Ore. 425, 136 Pac. 334; Corpora-
tion of Seguin v. Ireland, 58 Tex.
183.
26. Western Railway of Ala. v.
Alabama G. T. R. Co., 96 Ala.
272, 17 L. R. A. 474, 11 So. 483;
Arkansas River Packet Co. v.
Sorrels, 50 Ark. 466, 8 S. W. 683;
Gurnsey v. Northern California
Power Co., 160 Cal. 699, 36 L.
R. A. (N. S.) 185, 117 Fac. 906;
Lutterloh v. Town of Cedar Keys,
15 Fla. 306; Ward v. Field Mu-
seum, 241 in. 496, 89 N. E. 731;
East Chicago Co. v. East Chi-
cago, 171 Ind. 654, 87 N. E. 17;
Hopkinsville v. Jarrett, 156 Ky.
777, 162 S. W. 85; Codman v.
Crocker, 203 Mass. 146, 89 N.
E. 177; Board of Regents for
Normal School-Dist. No 3 v.
Painter, 102 Mo. 464, 10 L. R. A.
493, 14 S. W. 938; Trustees of
Methodist Episcopal Church of
Hoboken v. City of Hoboken, 33
N. J. L. 13, 97 Am. Dec. 696;
Louisville & N. R. Co. v. Cin-
cinnati, 76 Ohio St. 481, 81 N.
E. 983; Church v. Portland, 18
Ore. 73, 6 L. R. A. 259.
27. Douglass v. City Council
of Montgomery, 118 Ala. 599, 43
L. R. A. 376, 24 So. 745; Lutter-
loh v. City of Cedar Keys, 15 Fla.
306; Strange v. Hill & West
Dubuque St. Ry. Co., 54 Iowa,
669, 7 N. W. 115; Price v.
Thompson, 48 Mo. 363; Dodge
v. North End Improvement Ass'n,
189 Mich. 16, Ann Cas. 1918E,
485, 155 N. W. 438; Row-
zee V. Pierce, 75 Miss. 846,
40 L. R. A. 402, 65 Am. St.
Rep. 625, 23 So. 307; Huber v.
Gazley, 18 Ohio, 18, 3 Ohio St.
399; Church v. City of Portland,
18 Ore. 73; Morrow v. Highland
Grove Traction Co., 219 Pa. 619,
123 Am. St. Rep. 677, 69 Atl. 41;
Clement v. City of Paris, 107
Tex. 200, 175 S. W. 672.
28. Hardy v. City of Memphis,
10 Heisk. (Tenn.) 127; Rowzee
V. Pierce, 75 Miss. 846, 40 L. R.
A. 402, 65 Am. St. Rep. 625,
23 So. 307. But see Thorndike
V. Milwaukee Auditorium Co., 143
Wis. 1, 126 N. W. 881.
§ 486]
Dbdioatioit,
1887
ship of the land is in the public.-^
In case a right of user only is vested in the public,
an abandonment of the right has the effect of leaving
the land free from the burden thereof, in the original
dedicator or those claiming under him.^° And even
when, under the statute, the ownership is vested in the
public, if the authorities entirely relinquish the use of
the land, or the use for which the land was dedicated
becomes impossible, the land has been held to revert
to the original dedicator, or to persons claiming under
him.^^
A mere failure on the part of the pulilic to exercise
the right of user, or the cessation of such exercise,
does not show an abandonment,'^^ nor is an improper
29. United States v. Illiuois
C. R. Co., 154 U. S. 225, 38 L.
Ed. 971; Thorndike v. Mil-
waukee Auditorium Co., 143 Wis.
1, 126 N. W. 881. Contra, War-
ren V. City of Lyons City, 22
Iowa, 351.
30. Mahoning County Comr's
V. Young, 8 C. C. A. 27, 59 Fed.
96; Matthews v. Bloodworth, 111
Ark. 545, 165 S. W. 263; Olin
V. Denver & R. G. R. Co., 25
Colo. 177, 53 Pac. 454; Benham
V. Potter, 52 Conn. 248; Robbins
V. White, 52 Fla. 613, 42 So. 841;
Bayard v. Hargrove, 45 Ga. 342;
Thomsen v. McCormick, 136 111.
135, 26 N. E. 373; Town of
Freedom v. Norris, 128 Ind. 377,
27 N. E. 869; Kitzman v. Green-
halgh, 164 Iowa, 166, 145 N. W.
505; Baltimore & O. K. Co. v.
Gould, 67 Md. 60, 8 Atl. 754; Briel
v. City of Natchez, 48 Miss. 423;
Tracy v. Bittle, 213 Mo. 302, 112 S.
W. 45; Porter v. International
Bridge Co., 200 N. Y. 234. 9:5 N.
E. 716; Rowe v. James, 71 Wash.
267, 128 Pac. 539.
31. Hill V. Kimball, 269 111.
398, 110 N. E. 18; Board of
Sup'rs of Kent County v. City
of Grand Rapids, 61 Mich. 144,
27 N. W. 888; Gaskins v. Wil-
liams, 235 Mo. 563, 139 S. W.
117; City of Newark v. Waison,
56 N. J. L. 667, 24 L. R. A. 843,
29 Atl. 487; Heard v. City of
Brooklyn, 60 N. Y. 242; Board
of Education of the Incorporated
Village of Van Wert v. Inhabi-
tants of Van Wert, 18 Ohio St.
221, 98 Am. Dec. 114; Haberly
v. Treadgold, 67 Ore. 425, 136
Pac. 334; State v. Travis County,
85 Tex. 435, 21 So. 1029: Sow-
adzki v. Salt Lake County, 36
Utah, 127, 104 Pac. 111.
32. Santa Ana v. Santa Ana
Valley Irr. Co., 163 Cal. 211.
124 Pac. 847; Chicago R. 1. &
P. Ry. V. Council Bluffs. 109
Iowa, 425, 80 N. W. 564; Gardarl
V. Humboldt. 87 Kan. 41. 123
Pac. 764; Rowan v. Portland,
8 B. Mon. (Ky.) 232; Uriel v.
Natchez, 48 Miss. 423; Smith v.
State, 23 N. J. L. 712; Spencer
Eeal Pkopeety.
[§ 486
use of the land by the public authorities sufficient in
itself to terminate the riglits of the public therein."'^
V. Peterson, 41 Ore. 257, 68 Pac.
519; Pittsburg v. Epping-Carpen-
ter Co., 194 Pa. St. 318, 45 Atl.
129; Hogan v. Jamestown, 32
R. I. 528, 80 Atl. 271; Basic
City V. Bell, 114 Va. 157, Ann.
Cas. 1914A, 1031, 76 S. E. 336;
Olson Land Co. v. City of Seattle,
76 Wash. 142, 136 Pac. 118;
Lins V. Seefield, 126 Wis. 610, 105
N. W. 917.
33. Barclay v. Howell, 6 Pet.
(U. S.) 498, 8 L. R. A. 478;
McAlpine v. Chicago Great West-
ern R. Co., 68 Kan. 207, 64 L. R.
A. 85, 1 A. & E. Ann. Cas. 452,
75 Pac. 73; Parker v. City of
St. Paul, 47 Minn. 317, 50 N.
W. 347; Goode v. City of St.
Louis, 113 Mo. 257, 20 S. W.
1048; Williams v. First Presby-
terian Soc. in Cincinnati, 1 Ohio
St. 478; Hardy v. City of Mem-
phis, 10 Heisk. (Tenn.) 127;
Thorndike v. Milwaukee Audi-
torium Co., 143 Wis. 1, 126 N.
W. 881.
CHAPTER XXII.
INTESTATE SUCCESSION,
§ 487. General considerations.
488. Descent to issue.
489. Surviving consort as lieir.
490. Parent as lieir.
491. Descent to collateral kindred.
492. Kindred of the half blood.
493. Representation.
494. Ancestral lands.
495. Illegitimate children.
496. Unborn children.
497. Adopted children.
498. Advancements.
499. Disinheritance.
§ 487. General considerations. At common law, the
real property belonging to decedents j^assed, in the
absence of a valid will/ to persons standing in a position
of blood relationship to them, according to certain
established rules or ''canons" of descent.- Personal
property, on the other hand, including chattels real,
passed to the administrator, appointed by the ecclesi-
astical court from among the intestate's next of kin,
who usually, whether rightly or wrongly, appropriated
to his own use all the surplus after payment of debts,^
until by statute it was provided that such sur])lus
should be distributed, in a certain manner, to the
widow and children, or, in default of children, to the
next of kin.*
In this country, the common-law distinction between
real and personal property in this regard is still re-
1. But a will was valid, ex- 208 et scq.
cept by particular custom, only ?>. Blackst. Comni. 515; Holds-
after the Statute of Wills. See worth & Vickers Law of Suf-
ante, § 466. cession, 132.
2. Litt. §§ 2-8; 2 Bl. Comm. 4. 22 & 2ri Car. II. c. 10.
(1889)
1890 Eeal Property. [§ 487
tained in perhaps a majority of states, though in some
the executor is empowered, upon receiving authority
from the court, to sell real property for the payment
of debts. ^ In some states the statute provides that real
property shall pass to the personal representative, to
be administered by him in the same manner as personal
property,*^ and there is a growing tendency to obliterate
the distinctions between the two classes of property as
regards the powers of the executor or admin'strator in
redarg thereto. Generally, moreover. In this country,
the persons to whom the real property passes upon the
death of the owner intestate are approximately the same
as those entitled to the personal property when dis-
tributed by the personal representative.
The original rule at common law was that the
right of succession was determined by relationship to
the ''first purchaser," as he was termed, meaning
thereby the person who in theory, at least, brought the
land into the family, but who might as well have been
termed the last purchaser, as being the person who
last acquired the land otherwise than by descent. In
course of time, when land had been in the same family
for several generations, it frequently became difficult
satisfactorily to identify such purchaser, and the courts
came to regard relationship to the person last seised
in deed of the land as sufficient for this purjjose, on a
presumption apparently to the effect that a person re-
lated to the person last seised was ordinarily likewise
related, in the same line of descent, to the first pur-
chaser.'^ And so it is usually said that, at common law^,
5. Post, § 552. The common-law rule that seis-
6. Woerner, Administration, in in deed makes the root of
§§ 276, 337; 1 Dembitz, Land descent, in connection with the
Titles, § 28; 11 Am. & Eng. Enc. rule that persons of the half
Law, 1037 et seq. blood could not inherit, received
7. Watkins, Descents {4th what was regarded as its typical
ed.) 11, 2 Blackst. Comm. 228, exemplification in the following
and Chitty's note to same on p. case: If, on the death of a
209; Leake, Prop, in Land, 60. father seised in fee simple, leav-
§ 487 Intestate Successiox. 1891
the person claiming land by descent must have shown
that he was heir to the person who was last actually
seised of the land. Xevertheless, if one acquired land by
purchase, although he did not acquire the actual seisin,
as for instance a devisee w^ho failed to enter, his heir
could take by descent to the exclusion of the heir of
the person last actuahy seised.^
The present English statute provides that descent
shall always be traced from the last purchaser^* while
in this country, in most, if not all, the states, descent
is traced from the person last entitled to the land,
regardless of whether he was seised, or whether he ac-
quired the land by purchase or by descent.*^
At common law, as in England at the present day,
the male issue inherits before the female, and, when
there are two or more males of equal degree, the elder
alone inherits, while females inherit all together. These
rules, in so far as they give priority to the male issue,
and to the eldest of such issue, have been changed in all
the states of this country, and all those in the same
degree of relationship, w^hether male or female, share
equally in the inheritance, the legislation in this country
having followed in this respect, as it has frequently done
in other respects, the provisions of the English statute
as to the distribution of personal property.^"
ing a son and a daughter by a referred to as the doctrine of
first marriage, and a son by a "possessio fratis.'' See Litt. §
second marriage, the elder son, 8; WiHlams, Seisin, 55; Challis,
the heir, entered and obtained Real Prop. 241.
seisin, and then died without is- 8. Watkins, Descents (4th ed.)
sue, his half brother could not 29, 32; Hubback, Succession, 114.
inherit, but the land passed to 8a. 3 & 4 Wm. IV. c. lOG.
the sister, while, if he did not "The Inheritance Act."
enter, the land would pass to 9. 4 Kent's Comm. itSS;
the half brother. Hence the Greenleaf's Cruise's Dig. tit. 29.
maxim, "Possessio fratris de feodo ch. 3; Dembitz, Land Titles,
simplici facit sororem esse haer- § 30.
edem," and the rule that seisin 10. 4 Kent's Comm. 379; 1
in deed is necessary to make the Stimson's Am. St. Law, § 3101.
root of descent was frequently Occasionally a naked legal title
]S92 Real Property. [§ 487
Reversions and remainders. Since at common
law descent was traced either from the person last
actually seised, or from the last purchaser, it followed
that if a reversion or remainder subject to a particular
estate of freehold was cast upon an heir, such heir did
not, unless he did acts changing the course of descent,
constitute a root of descent, in case of his death while
the particular estate was still outstanding, but the per-
son claiming as heir upon his death was required to
trace his descent from the original reversioner or re-
mainderman, as being the last purchaser, and it was the
person who was the heir of the latter at the time of the
termination of the particular estate who was then enti-
tled to possession. ^1 A like rule applied in the case of
an executory devise, that person being entitled who could
show himself the hoar of the original devisee at the time
of the vesting. ^2
The common-law rule in this regard was recognized
and applied in a number of states,^^ but even in those
states, as in others, it has, for the most part, been super-
seded, owing to the statutory changes in the law of
descent, with the result that a reversion or remainder,
which passes to one by descent, subsequently passes, on
still descends as at common law. Scoggin, 92 N. Car. 99, 53 Am.
As to estates tail, see cmfe, § Rep. 410.
30. In Barnitz v. Casey, 7 Cranch
11. Watkins, Law of Descents 456, and Garrison v. Hill, 79 Md.
(14th Ed.) 130; Cruise, Digest. 75, 47 Am. St. Rep. 363, 28 Atl.
tit. 29, ch. 4, § 1 e< seq. 1062, it is said that he is en-
12. Goodright v. Searle, 2 Wils. titled who makes himself heir at
29; Doe v. Hutton, 3 Bos. & the time when the contingency
Pull. 643; Watkins, Law of De- happens. That is so in the
scents, 132; Fearne, Cont. Rem. case of an executory interest, as
561. in the first of the above cited
13. Buck V. Lantz, 49 Md. cases, because it is then that
439; Conner v. Waring, 52 Md. the interest falls into possession,
724; Jenkins v. Bonsai, 116 Md. but it would not seem to be so
629, 82 Atl. 229; Payne v. Rosser, in the case of a contingent re-
53 Ga. 662; Jackson v. Hilton, mainder, unless the vesting and
16 Johns. (N. Y.) 96; Lawrence the termination of the particular
V, Pitt. 46 N. Car. 344; King v. estate occur at the same time.
§ 48 / ] Intestate Succession. 1893
his d?atli intestate, to his heirs, without regard to the
ancestor from whom he inherited. ^^
Devise to heir. In case one undertakes to
devise to his heir exactly the same interest in par-
ticular land as the latter would take by descent, he is
regarded as taking by descent and not by the devise,
descent being regarded as the worthier title.^-' So if
one having an estate in fee simple undertakes to de-
vise an estate for life to one person with remainder
in fee simple thereon to his, the testator's, heir at lav\',
the latter, instead of taking an estate in remainder under
the devise, takes an estate in reversion by descent.^*^
That the devise is subject to a charge of some sort does
not affect the application of the rule.^*^" But if the
devise undertakes to give to the heir an estate in a
larger or smaller share of the land than would have
passed to him by descent, he takes under the devise."'''
In case the property w'ould, apart from the devise,
pass by descent to two or more persons to hold jointly,
as in the second of the above son v. Koehler, 76 Ind. 398;
cited cases. At common law the Tyler v. Fidelity & Columbia
general doctrine applied to a Trust Co. 158 Ky. 280, 164 S.
vested as well as to a contin- W. 939; Medley v. Williams, 7
genty remainder. G. & J. (Md.) 70; Ellfs v. Page,
14. Kean v. Hoffecker, 2 Harr. 7 Cush. (Mass.) 161; Felton v.
(Del.) 103, 29 Am. Dec. 336; Billups, 2 Dev. & B. (19 N.
Oliver v. Powell, 114 Ga. 592, Car.) 308; Seabrook's Excrs. v.
40 S. E. 826; North v. Graham, Seabrook, 1 McMul. Eq. (S.
235 111. 178, 18 L. R. A. (N. S.) C.) 201; Hoover's Lessee y.
624, 126 Am. St. Rep. 189, 85 Gregory, 10 Yerg. 444.
N. E. 267; Miller v. Miller, 10 16. Watkins, Law of Descents
Mete. (Mass.) 393; Cook v. Ham- (4th Ed.) 221; Barr v. Gardner,
mond, 4 Mason, 467; Moore v.- 259 111. 256, 102 N. E. 287; Stel-
Rake, 26 N. J. L. 574; Barber v. well v. Knapper, 69 Ind. 558, 35
Brundage, 165 N. Y. 368, 62 N. Am. Rep. 240; Donelly v. Turner,
E. 417; Early v. Early, 134 N. 60 Md. 81; Whitney v. Whitney,
C. 258, 46 S. E. 503; Hicks v. 14 Mass. 88.
Pegues, 4 Rich. Eq. (S. C.) 413. 16a. Clark v. Smith, 1 Salk.
15. Watkins, Law of Descents 241; Ellis v. Page, 7 Cusli.
(4th Ed.) 229; Co. Litt. 12b, (Mass.) 161; Kinney v. Glasgow,
Hargrave's note; .Tost v. Jost, 1 53 Pa. 141.
Mackey (Dist. Col.) 487; David-
1894 Real Peoperty. [§ 488
the question whether a devise of the property to those
persons would be operative depends primarily on wheth-
er, in that particular jurisdiction, joint heirs take as
coparceners or as tenants in common.^^^ If joint heirs
take as coparceners, such persons named as joint
devisees take under the devise and not by descent, since
the devise creates a tenancy in common or joint tenancy,
and cannot create a holding in coparcenery,^^*^ while if
joint heirs take as tenants in common, a devise to
them jointly, if not in such form as to create a joint
tenancy, is nugatory as creating the same interest in
each of them as he would acquire by descent. ^"^
§ 488. Descent to issue. In all the states, realty
descends to all the legitimate children of deceased living
at his death, and to the descendants of deceased children,
these latter taking per stirpes, and not per capita, that
is, the descendants of each child taking what their an-
cestor would have taken had he been alive, without
reference to their number, ^^ In case all the children of
the intestate are dead, the grandchildren and issue of
deceased grandchildren inherit in their jjlace. Such
descendants take per stirpes if they are not all in the
same degree of relationship to the intestate, as when
some are grandchildren and some are great-grand-
children, while, if they are all in the same degree of
relationship, they take in some states per capita, though
in other states per stirpes}^
16b. Landic v. Simmous, 1 300, 12 S. E. 753; McAfee v.
App. D. C. 507; McDaniel v. Al- Gilmore, 4 N. H. 391'.
leu, 64 Miss. 417, 1 So. 356; Mc- * 17. See Trustees of University
Kay V. Hendon, 7 N. C. 209. v. Holstead, 4 N. Car. 289.
16c. Ante, § 193. 18. 1 Stimson's Am. St. Law,
16d. Watkins, Law of Descent § 3101.
(4th Ed.) 233; Anon. Cro. Eliz. 19. 1 Stimson's Am. St. Law,
431, pi. 6; Gilpin v. HoUings- §§ 3103, 3137; 1 Dembitz, Land
worth, 13 Md. 190, 56 Am. Dec. Titles, § 33,
737; Biedler v, Biedler, 87 Va.
§ 481)] Intestate Suocessiox. 1895
§ 489. Surviving consort as heir. At common
law, the surviving husband was entitled to an estate by
curtesy in his wife's real property,^" while he took an
absolute interest in her personal property, including
chattels real.-^ Apart from his estate by curtesy, her
real property did not pass to him, even though other-
wise it escheated for failure of heirs. In this country,
at the present day, the surviving husband is frequently
given a fee-simple interest in his wife's real property.
In some, he is, if the wife leaves no issue, given a fee-
simple interest in all her realty, while in some he is given
one-half or two-thirds of her realty in such case. In a
number of states, although there are children, he takes
a share by descent, which is greater or less, according to
the number of children who are to share in the intestate's
property. In some states, moreover, he takes all tlie
realty, if the wife leaves no issue, parent, or brother or
sister, and in most, if not in all, the states, he takes it
if she leaves no kindred.^^
The surviving wife had, at common law, her right of
dower only out of his realty, while, by the English
statute of distribution, she was given one-third of his
personalty, unless he left no issue, in which case she
had one-half.^^ In this country the widow is frequently,
by statute, given a fee-simple interest in a portion of
her husband's realty in certain contingencies, as when
he leaves no issue, or no issue, parent, or brother or sis-
ter, or when he leaves no kindred, her rights correspond-
ing, in a general way, to those of a surviving husband.^-*
In a number of states, moreover, she is given a third
or a half in fee simple, even though her husband loaves
20. Ante, §§ 237-245. Dembitz, Land Titles, § 32.
21. Co. Litt. 351; 2 Blackst. 23. 2 Blackst. Comm. 515.
Comm. 434. 24. 1 Stinison's Am. St. Law,
22. 1 Stimson's Am. St. Law, §§ 3109, 311.5, 3119. 3123; 1
§§ 3105, 3109, 3115, 3119, 3123; 1 Woerner, Administration. § 67;
Woerner, Administration, § 66; 1 1 Dembitz, Land Titles, § !52.
189G Real Propebty. [§§490,491
issue,^^ and this she is frequently allowed to take in lieu
of any provisions made for her in his will.^^
§ 490. Parent as heir. At common law, land could
never lineally ascend, that is, it could not pass to the
father or grandfather of the decedent upon the latter 's
death, though it could pass to his uncle, the brother of
his father, and might from him pass to the father.^ ^ This
rule has been entirely changed in this country, and the
statute frequently provides that the decedent's prop-
erty shall pass to his father or mother in certain cases.
Thus, in some states it is provided that, if the intestate
leave no descendants, his property shall pass to his
father, or to the father or mother, or to the mother,
together with brothers and sisters, though in some states
the brothers and sisters of deceased are preferred to
either of his parents.^^
§ 491. Descent to collateral kindred. In case the
intestate leaves no issue surviving, and the realty does
not pass entirely to the surviving consort, or to one or
bott of the parents, under the statutes referred to
above, it descends among the collateral kindred of the
intestate, that is, to persons not lineally related to him,
but related by reason of the fact that they are descended
from the same ancestor. Among such collateral kindred
the brothers and sisters and their descendants hold the
first place, and are sometimes, by the terms of the stat-
ute, preferred to the parents of deceased.^^
Generally, as between collateral kindred not ijartio-
ularly specified in the statute of descent, those standing
25. 1 Stimson's Am. St. Law, Law, 287 et seq.; Holdsworth
§ 3105. & Vickers, Law of Succession,
26. 1 Stimson's Am. St. Law, 152.
§ 3262; see a^ite, § 236. 28. 1 Stimson's Am. St. Law,
27. Litt. § 3. Different ex- §§ 3107, 3111, 3117; 1 Woerner,
planations of the origin of this Administration, § 68.
rule have been given. See 2 29. 1 Stimson's Am. St. Law,
Blackst. Coram. 211 et seq.: §§ 3107, 3111, 3113, 3121.
2 Pollock & Maitland, Hist. Eng.
§ 49J] Intestate Successio:n-. 1897
in an equal degree of relationship to the intestate share
the inheritance to the exclusion of those in a more dis-
tant degree. In the majority of the states, the statute
provides that the degrees of kinship shall be computed
according to the rule of the civil law, though a few
have adopted that of the canon law, sometimes referred
to as that of the common law.'*^ The preference shown
for the civil law is in accord with the general tendency
to follow the English statute of distributions, which
was construed with reference to the civil law rule."^^
The difference between the two rules is as follows. The
canon law regarded the intestate and a particular claim-
ant as in the degree of relationship to one another which
corresponded to the number of degrees between their
common ancestor and the one of his two descendants who
was most distant from him, so that if the claimant and
intestate were both grandchildren of the common an-
cestor, they were related to one another in the second
degree, while, if one was a grandchild and the other
a great-grandchild, they were related in the third degree.
By the civil-law method of computing relationship, on
the other hand, the degrees between the common ances-
tor and the intestate were added to those between the
former and the claimant, in order to ascertain the
degree of relationship; and so two grandchildren of a
common ancestor were related in the fourth degree, and
a grandchild and a great-grandchild in the fifth degree.^-
The canon law rule was utilized by the ecclesiastical
courts for the purpose of determining the validity of
marriage between blood relatives, but does not appear
ever to have been recognized in England l)y the common
law courts.-^"^ It has never in that country been applied
for the purpose of determining rights of inheritance,
30. 1 Stimson's Am. St. Law, Ed.) 355.
§§ 3121, 3139; 1 Woerner, Admin- 32. 2 Blackst. Comm. 206 ct
istration, § 72. srq.
31. Lloyd V. Tench, 2 Ves. Sr. 33. See Christian's note to 2
212; 1 Williams, Executors (9th Blackst. Comm. 207.
1898 Real Property. [§ 492
for the reason that these have always been ascertained,
as between collateral kindred, upon the princi]3le of
representation, according to which the lineal descend-
ants of any person deceased stand in the place in which
such person would have stood if he had been living.^*
§ 492. Kindred of the half blood. At common law,
in order that one might inherit as a collateral kinsman
of the intestate, it was necessary that they both be
descended not only from the same person, but from the
same marriage of that person, that is, the claimant
must have been a kinsman of the whole, and not of the
half, blood. So, one could not inherit from his half
brother, even though the land had descended from their
common parent to such half brother, and though other-
wise the land would escheat for want of heirs.^^ This
rule has been changed by statute in most, if not all, the
states, but the statutory provisions on the subject are
very divergent. In a few states, kindred of the half
blood are given the same rights of succession as those of
the whole blood; and in some they inherit half shares
only as against the whole shares passing to those of the
whole blood. In a number of states, while the dis-
tinction between the whole and half blood no longer ex-
ists in connection with land purchased by the intestate,
it does exist as to ancestral land, so as to exclude from
any share therein collateral kin not of the blood of the
ancestor from whom the land was derived.^^* In a few
states kindred of the half blood do not take except in
default of kindred of the whole blood in the same de-
gree of relationship.^*^ In the absence of any reference
to the matter of whole or half blood, the statute has al-
34. Post, § 493. tion, § 70; 1 Dembitz, Land
35. Litt. §§ 6-8; 2 Blackst. Titles, § 37. The cases on the
Comm. 227. subject are collected in editorial
35a. Post, § 494. notes 29 L. R. A. 552, 26 L.
36. 1 Stimson's Am. St. Law, R. A. N. S. 603, L. R. A. 1916C,
§ 3133; 1 Woerner, Administra- 923.
§ 493] Intestate Sucoesstox. 1899
most invariably been construed to apply without refer-
ence to such a distinction.^"^
§ 493. Representation. The common law doctrine
was that the lineal descendants of a person deceased
represent the latter, that is, stand in the place, for pur-
poses of inheritance from another, in which the deceased
person would have stood had he survived."^ ^ In this
country, since the statutes expressly give the right of
inheritance to the direct descendants of the intestate,
and declare whether they are to take per stirpes or per
capita, the application of the doctrine of representation
is not usually called for in their favor. As regards col-
lateral kindred, there is in some states a general pro-
vision that the descendants of any person deceased shall
inherit the estate which such person would have inherit-
ed had he survived the intestate, but more usually the
right of representation is in terms restricted to descend-
ants of a deceased brother or sister. Thus, if the in-
testate left surviving a brother and the children of a
deceased sister, though such children could not otherwise
assert any right to share the intestate's property with
the surviving brother, since he stands in a closer degree of
relationship to the intestate, they can do so by reason of
their right of representation of the intestate.^^ In either
case, descendants of a deceased brother or sister of the
intestate stand in the place of such brother or sister as
37. In re Lynch's Estate, 132 453, 61 Am. Dec. 632; Beebee
Cal. 214, 64 Pac. 284; Ector v. v. Griffing, 14 N. Y. 235; Stock-
Grant, 112 Ga. 557, 53 L. R. A. ton v. Frazier, 81 Ohio St. 227,
723, 37 S. E. 984; Aldridge v. 90 N. E. 168; Edwards v. Barks-
Montgomery, 9 Ind. 302; Ander- dale, 2 Hill Eq. 416; Baker v.
son V. Bell, 140 Ind. 375, 29 L. Chalfant, 5 Whart. 477; Lynch's
R. A. 541, 39 N. E. 7:T5; Neely v. Appeal, 132 Pa. St. 422, 19 Atl.
Wise, 44 Iowa, 544; Clay v. 281; Marlow v. King, 17 Tex. 177.
Cousins, 1 T. B. Men. (Ky.) 75 38. 2 Blackst. Comm. 217.
Sheffield v. Lovering, 12 Mass. 39. 1 Stimson's Am. St. Law,
489; Rowley v. Stray, 32 Mich. § 3138.
70: Prescott v. Carr, 29 N. H.
1900 Eeal Pkoperty. [§ 493
regards the right to share with any surviving brothers
and sisters of the intestate or descendants of other
deceased brothers and sisters. In some states the right
of representation is not conceded to all descendants of
a deceased brother or sister, but is restricted to the
children of such brother or sister, the result of which
would be, in the case stated above, that the surviving
brother would take all the intestate's property, to the
exclusion of the gi'andchildren of the deceased sister,
though the children of the deceased sister would have
been entitled had they survived.^^* A statute providing
that no representation shall be allowed beyond the degree
of brothers' and sisters' children precludes all persons
not so closely related from taking by representation.
Under such a statute, for instance, uncles and aunts take
to the exclusion of the children of deceased uncles and
aunts.^*^ But a statute thus limiting representation
within certain degrees of kindred does not limit inheri-
tance within those degrees, that is, persons beyond those
degrees, if all in the same degree of kindred to the in-
testate, may take as heirs without reference to the doc-
trine of representation.^^
Ordinarily, if the statute expressly provides that
certain classes of relatives shall take by representation,
that doctrine cannot apply in favor of others.^- And a
provision that the property shall, in a certain con-
39a. 1 Wocruer, Administra- 42. Curry's Estate, 39 Cal.
tion, § 71; 1 Dembitz, Land 529; Quinby v. Higgins. 14 Me.
Titles, § 35. 309; Bigelow v. Morong, 103
40. Porter v. Askew, 11 Gill. Mass. 287; In re Chapoton's Es-
& J. 346; Clary v. Watkins, 64 tate, 104 Mich. 11, 53 Am. St.
Neb. 386, 89 N. W. 1042; John- Rep. 454, 61 N. W. 892; Douglas
ston V. Chesson, 6 Jones Eq. (59 v. Cameron, 47 Neb. 358, 66 N.
N. C.) 146. And first cousins W. 430; Clayton v. Drake, 17
to the exclusion of children of Ohio St. 367; Brennemans Ap-
first cousins. Adee v. Campbell, peal, 40 Pa. St. 115; North v.
79 N. Y. 52; In re Clendaniel's Valk, Dud. Eq. (S. C.) 212; In re
Estate, 12 Phila. 54. Robert's Estate, 84 Wash. 163,
41. Hoffman v. Watson, 109 146 Pac. 398.
Md. 532, 72 Atl. 479.
§ 493] Intestate Succession. 1901
tingency, descend to the next of kin "in equal degree,"
has ordinarily been construed as excluding any right, in
those who are not next of kin, to share, by way of
representation, with those who are next of kin.^^"*
The doctrine of representation, as applied when
there are claimants in different degrees of relationship
to the intestate serves, so far as it may be available un-
der the statute, to prevent the exclusion of the claimants
of the more remote degree from all share in the in-
testate's property. When all the claimants are in the
same degree, they are all equally the intestate's next
of kin, and consequently they may all share in the in-
testate 's property without reference to the doctrine of
representation. Whether, in such case, they take by
way of representation or purely in their own right may
however be important for the purpose of determining
whether they take per stirpes or per capita.*^ If, for
instance, the nephews and nieces of the intestate are to
be regarded as taking by way of representation, the
children of each brother or sister take together their
parents share, that is, they take per stirpes, while if
they do not take as representing their parent, they take
per capita. The statutes fixing the course of descent
have more usually been construed as calling for the
application of the doctrine of representation only when
the claimants are of unequal degree, and not when they
are all of the same degree, the result of such construc-
tion being that, in the latter case, they take per capita
43. In re Nigro's Estate, 172 Ark. 52. 9 S. W. 435; Houston
Cal. 474, 156 Pac. 1019; Van v. Davidson, 45 Ga. 574; Cox v.
Cleve V. Van Fossen, 73 Mich. Cox, 44 Ind. 368; Doane v. Free-
342, 41 N. W. 258; Conant v. man, 45 Me. 113; McComas v.
Kent, 130 Mass. 178; Douglas v. Amos, 29 Md. 132; Balch v.
Cameron, 47 Neb. 358, 60 N. W. Stone, 149 Mass. 39. 20 N. E.
430; Schenck v. Vail, 24 N. .1. 322; Ernst v. Freeman's Estate.
Eq. 538; In re Sullivan's Estate, 129 Mich. 271, 88 N. W. 636:
48 Wash. 631, 94 Pac. 48.'], 95 Jones v. Barnett, 30 Tex. 637;
Pac. 71. 2 Blackst. Coram. 417.
44. See Garrett v. Bean, 51
2 R. P.— 45
1902
Keal Propeety.
[§ 494
and not per stirpes y^* A different construction has, how-
ever, occasional!}^ been i^laced on a particular statute.^**
In some states there is a specific provision that when
all those entitled are of the same degree of kindred to
the intestate, they shall take per capita.*'^
§ 494. Ancestral lands. At common law, in case
of failure of lineal descendants of the person last seised,
the land passed to his collateral relations only when
they were of the blood of the first purchaser, by whom
the land was brought into the family.^* This rule of the
common law survives to some extent in the statutory pro-
visions, found in a number of states, to the effect that, if
the land came to the intestate either by descent, or by
gift or devise from an ancestor, or sometimes, ''on the
part of" or ''from" his father or mother, it shall pass
to such kindred as are of the blood of the ancestor from
whom it was derived by him.^^ The statutes of this
45. Byrd v. Lipscomb, 20 Ark.
19; Houston v. Davidson, 45
Ga. 574; In re Nigro's Estate,
172 Cal. 474, 156 Pac. 1019;
Baker v. Bourne, 127 Ind. 466,
26 N. E. 1078; Snow v. Snow,
111 Mass. 389; Nichols v. Shep-
ard, 63 N. H. 391; Staubitz v.
Lambert, 71 Minn. 11, 73 N. W.
511; Eshleman's Appeal, 74 Pa.
St. 42; Fisk v. Fisk, 60 N. J.
Eq. 195, 46 Atl. 538; Wagner v.
Sharp, 33 N. J. Eq. 520; Miller's
Appeal, 40 Pa. St. 387; Stent v.
McLeod, 2 McCord Eq. (S. C.)
354; Davis v. Rowe, 6 Rand.
(Va.) 355; Ball v. Ball, 27 Gratt.
(Va.) 325.
46. McComas v. Amos, 29
Md. 132; Odam v. Caruthers, 6
Ga. 39; Crump v. Faucett, 70 N.
C. 345; Jackson v. Thurman, 6
Johns. (N. Y.) 322.
The English statute of Distri-
bution has been construed as
giving the property to the direct
descendants of the intestate,
when in equal degree, per stirpes,
and to the collateral relatives,
when in equal degree, per capita.
Lloyd V. Tench, 2 Ves. Sen. 213;
Re Ross's Trusts, L. R. 13 Eq
286; In re Natt, 37 Ch. Div. 517.
47. 1 Stimson's Am. St. Law,
§ 3137. See Ellis v. Harrison,
140 N. C. 444, 53 S. E. 299;
Witherspoon v. Jernigan, 97 Tex.
98, 76 S. W. 445; Moore v.
Conner— (Va.)—, 20 S. E. 936.
48. Litt. § 4; 2 Blackst. Coram.
220. See ante. § 487. Thus, if
A purchased land and it de-
scended to his son B, wbo was
seised, and B died without issue,
the land descended to such col-
lateral relatives of B only as
were of the blood of A.
49. 1 Stimson's Am. St. Law,
§ 494] Intestate SuccKSiiioN. 1903
general character differ to so great an extent in their
phraseology that any general statements with reference
thereto are difficult, if not impossible, to niake.-'^'' In
some the exclusion of collateral kindred not of the blood
of the ancestor from whom the property was derived
applies only as between kindred in equal degree, and
in some only in case there is a relative of the blood of
that ancestor within a certain degree named, and in
some it excludes the kindred not of the ancestor's blood
in favor of any existing kindred of his blood, though
not ordinarily, by the terms of the statute, to the extent
of allowing the property to escheat for failure of heirs.'*'^
The statutes have ordinarily been construed as
restricting the right of inheritance to the blood of the
ancestor from whom the land passed directly to the in-
testate, and not to the blood of the ancestor who first
brought the property into the family, as at common
law.^^
When the statute speaks of a gift or devise from
an ancestor, the expression ''ancestor" might reason-
ably, it would seem, be construed as referring to a person
from whom the donee or devisee did actually inherit, or
would have inlierited had the gift or devise not been
made, rather than as referring to one from whom he
§ 3101; 1 Dembitz, Land Titles, v. Shailer, 46 Conn. 119; Smith
§ 36. V. Groom, 7 Fla. 81; Murpliy v.
49a. The cases construing the Henry, 35 Ind. 442; Cutter v.
statutes in this regard are most Waddingham, 22 Mo. 206; Den v.
conveniently collected in note Jones, 8 N. J. L. 340; Wheeler
to L. R. A. 1916C, 902 et seq. v. Clutterbuck, 52 N. Y. 67;
See also editorial note 15 Col- Hyatt v. Pugsley, 33 Barb. (N.
umbia Law Rev. 526. Y.) 373; Clayton v. Drake, 17
50. That the property does not Ohio St. 367; White v. White,
escheat, see State University v. 19 Ohio St. 531; Morris v. Pot-
Brown, 1 Ired. L., 23 N. Car. ter, 10 R. L 58; Arnold v. O'Con-
387; Dowell v. Thomas, 13 Pa. nor, 397 R. L 557, L. R. A. 1916C,
St. 41; Parr v. Bankhart, 22 898, 94 Atl. 145. Contra, Lewis
Pa. St. 291. V. Gorman, 5 Pa. St. 164; Wil-
51. Gardner v. Collins, 2 Pet. kerson v. Bracken, 2 Ired L.
(U. S.) 58, 7 L. Ed. 347; Clark (24 N. C.) 315.
190J: Ee.\l property. [§ 49^
might have inherited had some other heir not inter-
vened.^- For instance, the fact that the person who de-
vised the land to the intestate was his micle or his
cousin, so that, had the latter not left a brother surviv-
ing, the property would have come to the intestate by
descent, would not seem to make such testator the
ancestor of the intestate within the meaning of the
statute. A brother or sister may be an ancestor within
such a provision.^^ That the statute provides for the
descent of property, in a certain contingency, from
husband to wife, or from wife to husband, has in at
least one state been regarded as not making the one
consort the ancestor of the other, for the purpose of the
statutes referred to.^^
In case the legal and equitable titles to the land in
question came to the intestate from ditferent sources, it
is the source of the legal title, rather than of the equit-
able, which determines whether it is to be regarded as
coming from a particular ancestor.^'* But the fact that
the ancestor paid for the land, or that it was paid for
from his estate, has been regarded as making it a gift
to the intestate from the ancestor, though it was con-
veyed by the vendor directly to the intestate.^®
52. Such construction was 699.
adopted in Burgwyn v. Devereux. 55. Goodright v. WeUs, Dougl.
1 Ired. Law (23 N. C.) 583; 771; Selby v. Alston, 3 Ves. Jr.
Osborne v. Widenhouse, 3 Jones 339; Hill v. Heard, 104 Ark. 23,
Eq. (56 N. C.) 238. But in 42 L. R. A. (N. S.) 446, Ann.
Greenlee v. Davis, 19 Ind. 60, Cas. 1914C, 403, 148 S. W. 254;
the word "ancestor" was con- Wells v. Head, 12 B. Mon. (Ky.)
strued as equivalent to "kindred." 166; Nicholson v. Halsey, 1
And to that effect is Hostetler Johns. Ch. (N. Y.) 417; Higgins
V. Peters, 94 Ohio 17, 113 N. E. v. Higgins, 57 Ohio St. 239, 48
656. N. E. 943; Russell v. Bruer, 64
53. Benedict v. Brewster, 14 Ohio St. 1; Shepard v. Taylor,
Ohio, 368; Cutter v. Waddingham, 15 R. I. 204, 3 Atl. 382, 16 R. I.
22 Mo. 206. 166, 13 Atl. 105.
54. Brower v. Hunt, 18 Ohio 56. Galloway v. Robinson, 19
St. 311; Stembel v. Martin, 50 Ark. 396; Cotton v. Citizens'
Ohio St. 495. Contra. Cornett Rank. 97 Ark. 568. 135 S. W.
V. Hough, 136 Ind. 387, 35 N. E. 346; Prick Coke Co. v. Longhead,
§ 49-1:] Intestate Succession. 1905
Generally speaking, land acquired by means of an-
cestral land, as by purchase with the proceeds of the
sale of the latter, ^^^ or by exchange,^^ is not ancestral.
But ancestral land would not ordinarily lose its charac-
ter as such because a partition thereof between the heirs
is elTected.'^'-^ If one who owns land which came to him
from an ancestor conveys it to another and takes a re-
conveyance back, the land will ordinarily lose its ances-
tral character and pass, on his death intestate, as having
been newly acquired by him.'^'^
Of somewhat the same nature as the statutory pro-
visions above referred to, as making the course of de-
scent dependent upon the source of the intestate's title,
are the provisions found in a number of states to the
effect that, upon the death of a minor unmarried, leav-
ing property which came from either parent, by descent
or, in some states, by gift or devise, it shall descend to
the other children of the same parent, or to the issue
of such children.*'^ The effect of a statute of this
character has in several cases been said to be to make
the property pass to the surviving children as by de-
scent, not from the deceased child, but from the parent,
203 Pa. 168, 52 Atl. 172. Contra, ante, § 203.
Pattersnn v. Lamson, 45 Ohio 60. Co. Litt. 12b; Watkin«?,
St. 77. Conipare Carter v. Day, Law of Descents (4th Ed.) 241
59 Ohio St. 96, 69 Am. St. Rep. et seq; Holme v. Shinn, 62 N.
757, 51 N. E. 967. J. Eq. 1, 49 Atl. 151; Kihlken v.
57. Watson v. Thompson. 12 Kihlken, 59 Ohio St. lOG, 69 Am.
R. I. 466; Martin V.Martin, 98 Ark. St. Rep. 757. 51 N. E. 967;
93, 135 S. W. 348. See Adams v. Nesbitt v. Trindle, 64 Ind. 183.
Anderson, 23 Miss. 705; Cornett But see Dudrow v. King, 117
V. Hough, 136 Ind. 387. Md. 182, 83 Atl. 34, and the edi-
58. Armington v. Armington, torial note thereon, 12 Columbia
28 Ind. 74; Brower v. Hunt, 18 Law Rev. 625.
Ohio St. 311. 61. 1 Stimson's Am. St. Law.
59. Martin v. Martin, 98 Ark. § 3101; 1 Dembitz. Land Titles,
93, 135 S. W. 348; Conkling v. § 36. See In re Van Orsdol's
Brown, 8 Abb. Pr. N. S. (N. Estate. 94 Neb. 98. 142 N. W.
Y.) 345; Lawson v. Townlev, 686; and editorial note, L. R.
90 Ohio, 67. 106 N. E. 780. Sae A. 1916C, at p. 926.
1906 IJeal Property. [§ 495
as if such cliild had died in the parent's lifetime.''- But
nevertheless it has been occasionally decided that prop-
erty which came, by force of the statute, to the deceased
minor child upon the death of another deceased minor
child, did not come from the deceased parent, so as to be
within the operation of the statute.*'^ The statute does
not apply when the property came from a grand parent
and not from a parent,''^ and when it in terms applies
only to property acquired by descent, it does not ap-
ply to property acquired by devise.^^
§ 495. Illegitimate children. At common law, a
child born out of wedlock was regarded as filiiis nullius,
and as consequently bearing no relationship to any
persons other than his own offspring. Consequently
he could be the heir neither of his own father or mother,
nor of any other person, and no persons could inherit
from him except the heirs of his body.^*' This rule has
been changed generally in this country by various statu-
tory provisions. In the first place, the state statute
frequently provides that the intermarriage of the
parents after the birth of the child, or such intermar-
riage when accompanied by the father's acknowledgment
of the child, shall render the child legitimate, and in some
states the acknowledgment by the father without inter-
marriage has this effect, subject to the proviso, usually,
that an acknowledgment of the child shall not enable
the child to inherit from the kindred of the father.^'^
62. In re North's Estate, 48 64. Walden v. Phillips, 86 Ky.
Conn. 583; Nash v. Cutler, 16 302, 5 S. W. 757; Sedgwick v.
Pick. (Mass.) 491; Crowell v. Minot, 6 Allen (Mass.) 171;
Clough, 23 N. H. 207; Perkins Whitten v. Davis, 18 N. H, 88.
V. Simons, 28 Wis. 90; In re 65. Donahue's Estate, 36 Cal.
Fort's Estate, 14 Wash 10, 44 329; Nash v. Cutler, 16 Pick.
Pac. 104. (Mass.) 491; BurTte v. Burke,
63. Driskell v. Hanks, 18 B. 34 Mich. 451.
Mon. (Ky.) 855; Goodrich v. 66. 1 Blackst. Comm. 459; 2
Adams, 138 Mass. 552; Walkers v. Kent's Comm. 212.
Boaz, 2 Rob. (Va.) 485. Contra, 67. 1 Stimson's Am. St. Law,
Perkins v. Simons, 28 Wis. 90. §§ 6631, 6632. There is an ex-
§ 496] Intestate Succession. 1907
In most states, by statute, the illegitimate children in-
herit from the mother equally with the legitimate chil-
dren, and in some states they inherit also from her
kindred, though in a majority of the states, while inherit-
ing from the mother, they do not inherit from her kin-
dred. In a few states they inherit from the mother only
in case of default of lawful issue."^' The property of an
illegitimate child will descend to the sur\'iving husband
or wife, or to the children, as in the case of any other
person dying intestate. In default of such others en-
titled to inherit, the decedent's property goes usually,
under the statute, to the mother and the latter 's kin-
dred.«9
§ 496. Unborn children. At common law, a cliild
en ventre sa mere at the time of the death of the intes-
tate, if subsequently born alive, is regarded as living at
the time of such death, for the purpose of taking from
him by descentj^ this according with a general rule
that such a child is to be regarded as living when it is
to its interest so to regard it.'^^ The common law rule
has been applied in a number of decisions in this coun-
try,'^^ occasionally subject to the qualification that not
only must the child be born alive, but the period of its
ceUent summary of the statutes, 71. See Doe d. Clarke v.
vith references to some of the Clarke, 2 H. El. 399; Gray
decisions thereon. In 1 Dembitz. Perpetuities, § 220; Williams,
Land Titles, §§ 39, 40. See also Real Prop. (21st Ed.) 3G3. See
27 Am. & Eng. Encyc. Law (2nd for a general discussion of the
Ed.) 327. status of such a child, editorial
68. 1 Stimson's Am. Law, § note 26 Harv. Law Rev. 638.
3151; 1 Woerner, Administration, 72. Morrow v. Scott. 7 Ga.
§ 75. 5.15; Barr v. Gardner, 259 111.
69. 1 Stimson's Am. St. Law, 256, 102 N. E. 2S7; Massie v.
§ 3154; 1 Woerner, Administra- Hiatt's Adm'r. 82 Ky. 314;
tion, § 75. Aubuchon v. Render, 44 Mo. 560;
70. Watkins, Law of Descents, Giles v. Solomon, 10 Abb. Prac.
ch. 4; Challis, Real Prop. (3rd (N. S.) 97; Hill v. Moore. 1
Ed.) 139. Murph. (5 N. C.) 23:5; Pear.son
V. Carlton, 18 S. C. 47.
1908 Eeal Peopekty. [§ 496
foetal existence must have been such that its contin-
uance in life may be reasonably anticipated,''^" and in a
number of states the common law rule has been confirmed
by statute.'^'* In many states, however, the statute in
terms provides for inheritance by posthumous children
only who are the children of the intestate, or, in some,
who are descended from him.'^' A statute thus ex-
cluding posthumous children other than children of
the intestate has been construed to exclude only those
born after the death of the intestate, and not to exclude
a relative previously born merely because he happened
to have been born after the death of his own father/^
A child which was en ventre sa mere at the time of
the intestate's death, and entitled to take by descent
from him, cannot be divested of his interest, it has been
held, by a proceeding to which he was not a party, even
though the decree therein was rendered before his
birth.'^
The case of descent to a child en ventre sa mere at
the time of the intestate's death prosents one case of
what has been referred to as the doctrine of shifting
inheritances, by which, as it was recognized at common
law, the estate of the person wlio was next in the line
of descent at the time of the intestate 's death was liable
to be divested in favor of one subsequently born who was
nearer in the line of descent.'^^ In so far as descent to
a child en ventre sa mere at the time of the intestate's
death is recognized, the inheritance necessarily shifts,
73. Nelson v. Iverson, 24 Ala. 278, 4 Atl. 679.
9, 60 Am. Dec. 442;; Harper v. 77. Botsford v. O'Conner, 57
Archer, 4 Sm. & M. (Miss.) 99, 111. 72; Massie v. Hiatt, 82 Ky.
43 Am. Dec. 472; Marsellis v. 314; Giles v. Solomon, 10 Abb.
Thalhimer, 2 Paige 35, 21 Am. Pr. N. S. 97; Deal v. Sexton,
Dec. 66. 144 N. C. 157, 119 Am. St. Rep.
74. 1 Stimson's Am. St. Law 943, 56 S. E. 691.
§ 3136. 78. 2 Blaekst. Comm. 208; 3
75. 1 Stimson's Am. St. Law, Cruise's Dig. tit. 29 ch. 3, § 11;
§§ 2844, 3135, 3136; 1 Woerner, Watkins, Law of Descents, 169,
Administration, § 74. 185.
76. Shriver v. State, 65 Md.
§ 497] Intestate Succession. 1909
either partially or wholly, npon his subsequent birth.
But in several eases in this country the doctrine of shift-
ing inheritances has been repudiated, in so far as it was
asserted in favor of a person born after the intestate 's
death who was not at the time of such death en voitre.
sa mere/^ Occasionally the statute provides that no
child born after the intestate's death shall take bv
descent unless born within ten months thereafter.**^
§ 497. Adopted children. The statutes authorizing
the adoption of children quite frequently contain express
provisions as to inheritance both by and from an
adopted child.^^ Apart from any such express provision,
the effect of the adoption is ordinarily to entitle the
child to inlierit from the adoptive parent as if he were
the latter 's own child, ^^ and to entitle the child of the
adopted child to inherit from the adoptive parent.'^'^
But the statutes do not ordinarily operate to give to thb
adopted child a right to inherit from the kindred of the
adoptive parent,** they frequently containiuij an ex-
79. Bates v. Brown, 5 Wall. Me. 578, 55 Atl. 520; Ross v.
(U. S.) 710, 18 L. Ed. 535; Cox Ross, 129 Mass. 24.3, 37 Am. Rep.
V. Matthews, 17 Ind. 367; Drake 321; Morrison v. Estate of Ses-
V. Rogers, 13 Ohio St. 21; Melton sion's, 70 Mich. 297, 14 Am. St.
V. Davidson, 86 Tenn. 129, 5 S. Rep. 500, 38 N. W. 249; Rowans
W. 530. The doctrine was for- Estate, 132 Pa. 299, 19 Atl. 82.
merly recognized in North Car- See editorial note 5 Virginia Law
olina. Ciitlar v. Cutlar, 2 Rev. 349.
Hawkes (9 N. C.) 324, but was 83. In re Darling's Estate. 173
superseded by the act of 1823. Cal. 221, 159 Pac. 606; Pace v.
Rutherford v. Gregn, 2 Ired. Eq. Klink, 51 Ga. 220; Gray v.
(37 N. C.) 121. Holmes, 57 Kan. 217, 33 L. R. A.
80. 1 Stimson's Am. St. Law, 207, 45 Pac. 596: Power v.
§ 3136. Hafley, 85 Ky. 671. 4 S. W. 683;
81. 1 stimson's Am. St. Law, Herrick's Estate, 124 Minn. 85,
§ 6647. 144 N. W. 455; Bernero v. Good-
82. Re Newman, 75 Cal. 213, 7 win, 267 Mo. 427. 184 S. W. 74;
Am. St. Rep. 146, 16 Pac. 887; Batchelder v. Walworth,— (Vt.) —
Barnes v. Allen, 25 lad. 222; 82 Atl. 7; See In re Webb's Eh-
Merritt v. Morton, 143 Ky. 133, tate, 250 Pa. 179. 95 Atl. 419.
33 L. R. A. (N. S.) V.id, 136 S. 84. Van Matre v. Sankey, 148
W. 133; Virgin v. Marwlck, 97 ill. 536, 2.S L. R. A. 665. 39 Am.
1910
Eeal Property.
[§ 497
plicit provision to this effect. The adopted child may,
it has been held, inherit from his natural parent as he
would have done had he never been adopted.^^ But
there are decisions to the effect that one cannot
inherit from the adoptive parent both as an adopted
child and as a blood relative of such parent.^^
St. Rep. 196, 36 N. E. 628;
Wallace v. Noland, 246 111. 535,
138 Am. St. Rep. 247, 92 N. E.
535; Barnhizel v. Ferrell, 47 Ind.
335; Sunderland h Estate, 60
Iowa, 732, 13 N. W. 655; Merritt
V. Morton, 143 Ky. 133, 33 L.
R. A. (N. S.) 139, 136 S. W.
133; Van Derlyn v. Mack, 137
Mich. 146, 66 L. R. A. 437, 109
Am. St. Rep. 669, 100 N. W. 278,
4 Ann. Cas. 879; Hockaday
V. Lynn, 200 Mo. 456, 8 L. R. A.
(N. S.) 117, 118 Am. St. Rep.
672, 9 Ann. Cas. 775, 98 S. W.
585; Meader v. Archer, 65 N. H.
214; Phillips v. McConica, 59
Ohio St. 1, 51 N. E. 445, 69 Am.
St. Rep. 753; Burnett's Estate,
210 Pa. 599, 69 Atl. 74; Batchel-
ler-Durkee v. Batcheller, 39 R.
I. 45, 97 Atl. 378; Helms v.
EUiott, 89 Tenn. 446, 10 L. R. A.
635, 14 S. W. 930: Moore v.
Moore, 35 Vt. 98. "The ancestors
of the adopter are presumed to
know their relatives by hlood,
and to have them in mind in the
distribution of their estates,
either by will or descent, but
they cannot be expected to keep
informed as to adoption proceed-
ings in the probate court of the
coXinties of this state; and to
allow an adopted child to inherit
from the ancestors of the adop-
ter would often put property into
the hands of unheard-of adopted
children, contrary to the wishes
and expectations of such ances-
tors." Burket, J., in Phillips v.
McConica, 59 Ohio St. 1, C9 Am.
St. Rep. 753.
85. Barnhizel v. Farrell, 47
Ind. 335; Wagner v. Warner, 50
Iowa, 532; Clarkson v. Hatton,
143 Mo. 47, 39 L. R. A. 748, 65
Am. St. Rep. 635, 44 S. W. 761;
Upson V. Noble, 35 Ohio St. 655;
Compare dicta in Re Jobson's
Estate, 164 Cal. 312, 43 L. R. A.
(N. S.) 1062, 128 Pac. 938; Re
Havsgord's Estate, 34 S. D. 131,
147 N. W. 378. That the adopted
son may inherit from his natural
grandfather, see In re Darling's
Estate, 173 Cal. 221, 159 Pac.
606.
In Indiana it has been d«eided
that a child adopted by a hus-
band during his former marriage
was a child "by a previous wife"
within a statute giving a share
in his estate to such a child.
Markover v. Krauss, 132 Ind. 294,
17 L. R. A. 806, 31 N. E. 1047;
Patterson v. Browning, 146 Ind.
160, 44 N. E. 993.
An adopted child of a deceased
devisee has been regarded as "an
heir in a descending line" of
such devisee within a statutory
provision substituting such heir
in place of the deceased devisee,
so as to prevent a lapse. Clark
v. Clark, 76 N. H. 551, 85 Atl.
758; Warren v. Prescott, 84 Me.
483, 17 L. R. A. 435. 30 Am. St.
497]
Intestate Succession",
19]1
As regards inheritance from the adopted child, it is
occasionally provided by the statute that property ac-
quired by him by gift, devise or descent from the adopt-
ive parent shall pass, upon his death intestate and with-
out issue, to such parent, and in some states that prop-
erty otherwise acquired by him shall so pass.«" There
is at least one decision to the effect that, even in the
absence of any statutory provision in this regard, all
property of the child, in such case, passes to the
adoptive parent, to the exclusion of his blood relatives.^"*
There are, on the other hand, decisions that all his prop-
erty passes to his own kindred to the exclusion of the
adoptive parent,^'-* such a view being occasionally based
on the fact that the statute, providing in te?-ms that the
adopted child should be heir of the adoptive parent, and
being silent as to any right of inheritance by the lat-
ter, impliedly excluded any such rights.*'" In some states
Rep. 370, 24 Atl. 948. And in
Riley v. Day, 88 Kan. 503, 129
Pac. 524 it was held that the
adopted child of a deceased child
of decedent was "living issue"
of such deceased child within a
statute providing for descent to
living issue of a deceased child.
86. Morgan v. Reel, 213 Pa.
81, 62 Atl. 253; Billings v. Head,
184 Ind. 361, 111 N. E. 177; De-
lano V. Bruerton, 148 Mass. 619,
2 L. R. A. 698, 20 N. E. 308;
Contra, Wagner v. Varner, 50
Iowa, 532. As regards the effect
of a second adoption by another
person upon the child's right to
inherit from him who first
adopted him, see editorial
notes, 31 Harv. Law Rev. 488; 16
Mich. Law Rev. 119; 5 Virginia
Law Rev. 349, commenting on In
re Klapp's Estate, 107 Mich. 615,
164 N. W. 381, in which it was
decided that the right to inherit
under the first adoption was de-
stroyed. Contra, Patterson v.
Browning, 146 Ind. 160, 44 N. E.
993.
87. 1 Stimson's Am. St. Law,
§ 6649.
88. In re Jobson's Estate, 164
Cal. 312. 43 L. R. A. (N. S.)
1062, 128 Pac. 938.
89. White v. Dotter, 73 Ark.
130, 83 S. W. 1052; Russell v.
Jordan, 58 Colo. 445, 147 Pac.
693; In tre Namaun, 3 Hawaii.
484; Baker v. Clowser, 158 Iowa,
156, 43 L. R. A. (N. S.) 1056, 138
N. W. 837; Fisher v.
Browning, 107 Miss. 729, Ann.
Cas. 19170, 466, 66 So. 132;
Reinders v. Koppelman. 68 Mo.
482, 494; Edwards v. Ycarby. 168
N. C. 663. L. R. A. 1!»1.'-)E. 462, 85
S. E. 19; Upson v. Noble. 35 Ohio
St. 655; nolo v. Rol)l)ln.s. 53 Wis.
514, 10 N. W. 617.
90. Corn v. Powell. Ml W N.
]912
Keal Pkopekty.
[§ 498
it is the law that an adoptive parent or his kindred shall
take such proi:)erty as passed to the child from the
adoptive parent, while the blood relatives take property
which he acquired otherwise. ^^
The right of inheritance, acquired by a child's
adoption in one state will, it has been held, be recognized
in another state, in so far as this right is not inconsis-
tent with the laws and policy of the latter state.^^
§ 498. Advancements. An advancement is a giv-
ing, by anticipation, to a child or other relative, of a
part or the whole of what the donee would receive on
the death of the donor intestate, with the result, general-
ly speaking, that the amount thereof is deducted in
determining the share of such donee after the donee's
death. A substantially similar doctrine was recognized
at common law, in the case of land given to one of
several co-heiresses to hold in frank marriage, she being
excluded from any share in the ancestor's land unless
she brought the land given her into a common fund
for equal distribution, this being known as ''hotchpot.'"^"
C. (Pa.) 297; Hole v. Robbins,
53 Wis. 514, 10 N. W. 617.
91. See Swick v. Coleman, 2l8
m. 33, 75 N. E. 807; Lanferman
V. Van Zile, 150 Ky. 751, 150 S.
W. 1008; Hole v. Robbins, 53
Wis. 514, 10 N. W. 617;
Humphries v. Davis, 100 Ind. 274.
In Humphries v. Davis, 100
Ind. 274, 50 Am. Rep. 788, Paul
V. Davis, 100 Ind. 422, overruling
Barnhizel v. Ferrell, 47 Ind. 335,
it was decided that property
which descended to the adopted
child from the adoptive parent
descended to the latter's kindred,
the question of the descent of
property otherwise acquired being
expressly left undecided.
92. Woodward's Appeal, 81
Conn 152, 70 Atl. 453; Van
Matre v. Sankey, 148 IH. 536, 23
L. R. A. 665, 39 Am. St. Rep. 196.
36 N. E. G28; Schick v. Howe,
137 Iowa, 249, 14 L. R. A. (N. S.)
980, 114 N. W. 916; Gray v.
Holmes, 57 Kan. 217, 33 L. R. A.
207, 45 Pac. 596; Ross v. Ross,
129 Mass. 243, 37 Am. Rep. 321;
Fisher v. Browning, 107 Miss.
729, Ann. Cas. 1917C, 466, 66 So.
132; Anderson v. French, 77 N.
H. 509, 93 Atl. 1042, L. R. A. 1916
A, 660; Finley v. Brown, 122
Tenn. 316, 25 L. R. A. (N. S.)
1285, 123 S. W. 359. See Calhoun
V. Bryant, 28 S. Dak. 266, 133 N.
W. 266. Contra, Brown v. Fin-
ley, 157 Ala. 424, 21 L. R. A. N.
S. 679, 131 Am. St. Rep. 68, 47
So. 577.
93. 2 Blackst. Comm. 190. As
§ 498] Intestate Succession. 1913
Frank-marriage was, however, practically obsolete even
in Blackstone 's time,^^ and the modern law of advance-
ments is based exclusively on statutes, which differ some-
what in different states."^
In most states the statute applies in terms to a gift
to any descendant of the intestate, but a statute apply-
ing in terms to a gift to a child only has been construed
as extending to a gift to another descendant.'**^
The statutes^f many states provide that if the per-
son to whom the advancement was made dies before the
intestate, his representives shall stand in his place as
regards the advancement, that is, will take subject to
the deduction thereof as the ancestor would have done.®^
But even apart from an express provision to that effect,
it seems, persons taking by right of representation the
share of him to whom the advancement was made, take
subject to such deduction.^^ Persons, on the other hand,
who take in their own right and not by right of represen-
tation, take free from any claim on account of advance-
ments made to their parent.^^
to local customs of charging ad- 114 111. 603, 2 N. E. 603, 4 N. E.
vancements in connection with 137, 7 N. E. 287; Bramford v.
the distribution of personalty, Crawford, 51 Ga. 20; Coffman v.
see 2.Blackst. Comm. 517; Holt Coffman, 41 W. Va. 8, 23 S. E.
V. Frederick, 2 P. Wms. 356. 523.
94. 2 Blackst. Comm. 115. 98. Simpson v. Simpson, 114
95. 1 Stimson's Am. St. Law, 111. 603, 2 N. E. 603; Barber v.
§§ 31G0-31G8; 2 Woerner, Admin- Taylor, 9 Dana (Ky.) 84; Smith
istration, § 559. v. Smith, 59 Me. 214; Williams'
96. In re Williams. 62 Mo. Estate, 62 Mo. App. 339; Headen
App. 339; Johnson v. Antriken, v. Headen, 42 N. C. 159; Quarlcs
205 Mo. 244, 103 S. W. 936; v. Quarles. 4 Mass. 680; Parsons
Storey's Appeal, 83 Pa. St. 89; v. Parsons, 52 Ohio St. 470; Per-
A gift to a grandchild made son's Appeal, 74 Pa. St. 121; Mr-
while the grandchild's parent was Lure v. Steel, 14 Rich. Eq. 105.
alive has been regarded as not 99. Brown v. Taylor, 62 Ind.
constituting an advancement to 295; Skinner v. Wynne, 2 Jones
the parent. Stevenson v. Martin, Eq. 41; Calhoun v. ('osgrove. 33
11 Bush (Ky.) 485. La. Ann. 1001; Person's Apeal,
97. 1 Stimson's Am. St. Law, 74 Pa. St. 121.
§ 3164. See Simpson v. Simpson,
1914 Real Property. [§ 498
The question whether a gift to a possible heir or
distributee is to be regarded as an advancement is a
question as to the intention of the donor, and, apart from
statute, a gift to an adult child, if of substantial value,
is usually presumed to be an advancement.^ In a num-
ber of states there are statutory provisions to the effect
that the gift, in order to constitute an advancement, must
be acknowledged in writing as an advancement by the
donee, or must be expressed in the g^ft or grant to be
made as such, or must be so charged by the donor in
writing.- In some states it is provided that maintaining,
educating, or giving money to a minor child, without any
view to a portion or settlement for life, is not an ad-
vancement.^
The statute in most states declares that, if the
amount of the advancement exceeds the share to which
the donee would be entitled on the death of the donor in-
testate, though he need refund no part of what he has
received, he can receive nothing further from the intes-
tate 's estate. In case the advancement is not equal
to the share to which he is entitled, the donee, iti a num-
ber of states, is given so much of the intestate's prop-
erty as will make all the shares equal ; and in some states
it is provided that the advancement is to be charged
against the share to which the donee is entitled in
either the real or the personal property, according as the
advancement may have been the one or the other, and
that, if the advancement should exceed the amount to
which he may be entitled out of either class of ]3roperty,
his share in the other class shall be proportionally re-
duced. In some states it is provided in terms that the
donee must, in order to obtain his proper share in the
1. 2 Woerner, Administration, 2. 1 Stimson Am. St. Law, §
§ 555; Boyer v. Boyer, 62 Ind. 3162.
App. 73, 111 N. E. 952; Calhoun 3. 1 Stimson, Am. St. Law, §
V. Taylor, 178 Iowa, 56, 159 N. 3161. This appears to be so apart
W. 600; Lynch v. Culver, 260 Mo. from such an express provision.
495, 168 S. W. 1138. 2 Woerner, Administration, § 555.
§ 499] Intestate Succession. 1915
intestate's proi)erty, bring the amount of tlie advance-
ment into ''hotch pot," that is, he must eontiibute to
the common fund the amount of his advancement, and
shall then receive therefrom the same amount as if the
advancement had not been made.^
The statutes in regard to advancements have no ap-
plication, as a general rule, in the case of a partial in-
testacy, since it is presumed that the will would have
mentioned any gifts which it was intended should be
regarded as advancements.^
§ 499. Disinheritance. It is generally recognized
that one who would otherwise take, as heir or distributee,
the w^liole or a part of decedent's property, cannot be
deprived of his right in this regard by a mere expres-
sion of an intention to that effect in decedent's will,
without a testamentary disposition of the property in
favor of another or others. For instance, a statement
in testator's will that his eldest son is not to share
in his estate will not preclude the son from so sharing,
unless all tlie estate is etfectuallv disposed of bv tlie
will.«
Even though all of decedent's property is otherwise
disposed of by the will, this is not necessarily effective,
in many states, to deprive a child of decedent, or tlie
issue of a deceased child, of a right to share thereiu, it
4. 1 Stirason's Am. St. Law, § Anderson, 69 N. H. 561, 44 All.
:>]63. 103; Nagle v. Conard, 79 N. J.
5. 2 Woerner, Administration, Eq. 124, 81 Ail. 841, 80 N. J. Eq.
§ 553; 1 Dembitz, Land Titles, § 253, 86 Atl. 1103; Gallagher v.
248. Crooks, 132 N. Y. :]?>S. 30 N. K.
6. Denn v. Gaskin, Cowp. 657; 746; In re Trimble's Will, 199 N.
Pickering v. Stamford, 3 Ves. Jr. Y. 454, 92 N. E. 1073; Atkins
492; Campbell-Kan nanakoa v. v. Kron, 2 Ired. Eq. (N. C.) 58;
Campbell, 152 Cal. 201, 92 Pac. Vaughn v. Lanford, 81 S. C. 282.
184; Lane v. Patterson, 138 Ga. 62 S. E. 316; Bois.seau v. Al-
710, 76 S. B. 47 (semble); Tea dridges, 5 Leigh (Tenn.) 222;
V. Millen, 257 111. 624, 101 N. E. Coffman v. Coffman, 85 Va. 459,
209; Doe v. Lanius, 3 Ind. 441. 8 S. E. 072.
56 Am. Dec. 518 & note; Wells v.
1916 Real Peoperty. [§ 499
being frequently provided by statute that a child, or the
issue of a deceased child, not provided for in the will,
shall, subject to varying limitations, take the share
which he would have received in case decedent had died
intestate, and in many states there is such a provision,
confined in its operation, however, to the case of a child
who was born after the execution of the wdllJ
7. See 1 Stimson's Am. St. Administration, § 55.
Law, §§ 2842, 2843, 1 Woerner,
CHAPTEE XXIII
ADVERSE POSSESSION OF LAND.
§ 500. General considerations.
501. Actual and visible possession.
502. Exclusiveness of possession. .
503. Hostility of possession.
504. Necessity of claim of title.
505. Mistake in locating boundary.
506. Necessity of right of action.
507. Interruption of running of statute.
508. Tacking.
509. Personal disabilities.
510. Exception in faTor of the sovereign.
511. Effect as vesting and divesting title.
512. Extent of possession.
513. Particular relations.
(a) Landlord and tenant.
(b) Trustee and cestui que trust.
(c) Licensor and licensee.
(d) Principal and agent.
(e) Grantor and grantee.
(f) Vendor and vendee.
(g) Life tenant and remainderman,
(h) Cotenants.
(i) Mortgagor and mortgagee.
(j) Mortgagor and foreclosure purchaser.
(k) Surviving spouse and heirs.
(1) Parent and child.
(m) Husband and wife.
§ 500. General considerations. There were, even
in early times, numerous statutes adopted in England
limiting the time within which an action could be brouglit
on account of a disseisin of land, but these differed from
the statutes of the present day in that, instead of naming
a certain number of years before the institution of the
action beyond which no disseisin could be alleged, they
named a certain j^ear back of which the pleader could
Z R. P.-46 (191')
1918 Real Property. [§ 500
not go.^ The last statute whicli adopted this method
of tixing the period of limitation was St. Westminster I.
e. o9,- which forbade the seisin of an ancestor to be
alleged in a writ of right prior to the beginning of the
reign of Richard I. (A. D. 1189), and for other writs
fixed the year 1217. Thus, under this statute, at the
time of its passage, the period of limitation for some
writs was fifty-eight years, and this period was lengthen-
ed, as time went on without any change in the law, so
that it exceeded three hundred years when, by 3^2 Hen.
VIII. c. 2,^ a change was made, and the modern method
was adopted of tixing a certain number of years Avithin
which the action must be brought. This last statute, how-
ever, applied only to the old real actions, and, the action
of ejectment having to a great extent taken their place,
St. 21 Jac. I. c. IG,"* was passed, which provided that
no person should thereafter make any entry into any
lands, tenements, or hereditaments but within twenty
years next after his or their right or title shall have
accrued. This statute, while not in terms applying to the
action of ejectment, did so in effect by barring the right
of entry on which the action depended.
In this country the statutes of the different states,
as regards the limitation of actions to recover land,
exhibit very considerable diversity, but the courts, in
appMng them, have recognized certain general princi-
ples as governing the subject, with but little regard, for
the most part, to the language of the particular statute.
The period of twenty years, named in tlie statute of
James, has been adopted in the legislation of a number
1. Thus the earliest date at Pollock & Maitland, Hist. Eng.
which the seisin of an ancestor Law, 51, 81, 141.
could be alleged in a writ of 2. 3 Edw. I. (A. D. 1275).
right was the beginning of the 3. A. D. 1540. The disadvan-
reign of Henry 1. (A. D. 1100) un- tages of the long period of limita-
til this was changed by the tion was, however, to a great ex-
Statute of Merton to the begin- tent avoided by the system of
ning of the reign of Henry II. levying fines. See Lightwood,
(A. D. 1154). Other dates were Possession of Land. 15C.
fixed for other writs. See 2 4. A. D. 1623.
^ ^^)] Adverse Posslssjox. 1919
of the states, while in a few the lapse of a greater
period is required to har the right of action, and in
some a much less period. In a number of the states
there are statutory provisions for what are known as
"short limitations," in effect considerably r ' ' _ the
ordinary- period in cases when the adverse p :i is
by one claiming under "color of title," that is, by one
who has, in taking possession, acted on the strength of
a conveyance or judicial decree purporting to vest the
title in him, but which, for some reason, fails to do so.
In some states, such a provision exists in favor of one
occupying under a particular class of conveyance or de-
cree, as when it is provided that a junior patent from the
state under which one occupies cannot be attacked after
a certain number of years, and such a provision is fre-
quently found in favor of a purchaser at certain classes
of judicial sales, or at tax sales. The possession under
such a •'short limitation" act is usually required to be
accompanied by the payment of taxes on the land by the
person in possession.^
The doctrine of adverse possession, as now estab-
lished, may be expected to diminish in importance with
the further extension and utilization of the system of
registration of titles ordinarily referred to as the
Torrens System,^' by reason of the fact that the legisla-
tion establishing this system quite frequently provides
that title shall not be acquired by adverse possession as
against the registered owner of the land.^
5. The short limitation acts of registered land." Ii has been said,
the several states are ■well sam- in this connection that "if the
marized in 2 Dembitz. Land
Titles. § 186.
5a. Post. I 580.
5b. But the English Commis-
sioners on Land Transfer recom-
mend a change in this regard In
the English act, to the effect that
"the statutes of limitation shall article by James Edward Hoge.
operate in the same manner with Esq.. 28 Yale Law Joum. at pp.
regard to registered as to un- 54, 58, wherein is faTOied the
policy of the V^: ■
acts is
(as has always
1 so'Jnd,
what adec
-a there
be for r€
. to ni»-
registered lanu.
.Article by
Arthur UnderhJlL
Elsq. in 27
Law Quart- Rev. at
p. 178. See
1920 Eeal Pboperty. [§ 500
Theory of the legislation. The desirability of
fixing, by law, a definite period within which claims to
land must be asserted has been generally recognized,
among the practical considerations in favor of such a
policy being the prevention of the making of illegal
claims after the evidence necessary to defeat them
has been lost, and the interest which the community
as a whole has in the securit}^ of title. The moral
justification of the policy lies in the consideration
that one who has reason to know that land belonging
to him is in the possession of another, and neglects, for
a considerable period of time, to assert his right thereto,
may properly be penalized by his preclusion from there-
after asserting such right. It is, apparently, by reason
of the demerit of the true owner, rather than any sup-
posed merit in the person who has acquired wrongful
possession of the land, that this possession, if continued
for the statutory period, operates to debar the former
owner of all right to recover the land.®
Presumption of conveyance distinguished. The
doctrine, occasionally asserted, that the long continued
possession of land by one claiming as owner gives rise
to the presumption of a valid conveyance to him or to the
person under whom he claims, though ordinarily similar
in its practical results to the statutes of limitation, is
entirely independent thereof. It involves a presumption
of the rightfulness of one's possession, while the stat-
applicatiou of the limitation stat- Haralson, J., in Lecroix v. Malone,
utes to land registered under the 157 Ala. 434, 47 So. 725; Depue,
system, the limitation period to J., in Foulke v. Bond, 41 N. J. L.
begin to run, however, only after 527. A different view is indicated
registration. in Mclver v. Ragan, 2 Wheat, 25,
6. See Ames, Disseisin of approved in Craven v. Craven,
Chattels, 3 Harv. Law Rev. 318, 181 Ind. 553, 103 N. E. 333, 105
Lectures on Legal History 197; N. E. 41. See the discussion of
Editorial note, 10 Columbia L. the policy of the statutes by
Rev. 761; Pollock & Wright, Pos- Professor Henry W. Ballantine, 32
session, 96; Gibson, C. J., in Harv. Law Rev. 135,
Sailor v. Hertzogg, 2 Pa. St. 182;
§ 500] Adverse Possessiox. 1921
utes of limitation are by their terms applicable only
when tlie possession is, apart from such statutes, wrong-
ful.
As regards the doctrine referred to, of the pre-
sumption of a conveyance based on long continued
possession, it has been said, by the United States
Supreme Court, that in order to presume a conveyance it
is not necessary for the jury to believe that a conveyance
was in fact executed, but it is sufficient if the evidence
leads to the conclusion that the conveyance might hav^e
been executed, and that its existence would be a solution
of the difficulties arising from its non execution.' Such
a view has also been indicated by some of the state
courts,^ while others merely recognize that long con-
tinued possession is a fact, to be considered along with
other facts, tending to show that a convej^ance was ex-
ecuted, without being in any way conclusive in that
regard.^
The cases do not ordinarily specify the length of
the period of possession w^hich will be sufficient to justi-
fy the presumption of a grant. It would appear, how-
ever, that in so far as the presumption is regarded as a
rule of law^, calling for the finding of a grant without
7. Field, J., in Fletcher v. Ful- Valentine v. Piper, 22 Pick,
ler, 120 U. S. 534, 30 L. Ed. 759. (Mass.) 85, 33 Am. Dec. 715;
8. Kidd V. Browne, — Ala. — , 70 .lenkins v. McMichael, 21 Pa.
So. 65; Reed v. Money, 115 Ark. Super. Ct. 161; Taylor v. Wat-
1. 170 S. W. 478; Casey's Lessee kins, 26 Tex. 688; Herndon v.
V. Inloes, 1 Gill (Md.) 430, 503, Vick, 89 Tex. 469, 35 S. W. 141;
39 Am. Dec. 658; Melvin v. Wad- Townsend v. Downer's Adm'r, 32
dell, 75 N. C. 357; Davis v. Me- Vt. 183.
Arthur, 78 N. C. 357; Williams v. Regarded as a mere matter of
Donnell, 2 Head (Tenn.) 695;i inference, a grant may be in-
Dunn V. Eaton, 92 Tenn. 743, 23 ferred or presumed from other
S. W. 163; Matthews v. Burton, facts, even though the person aa-
17 Gratt. (Va.) 312. serting the grant had never been
9. Nelson v. Weekly, 1!)5 Ala. in possession. Le Blanc v. Jack-
1, 70 So. C61; Carter v. Good- son.— Tex Civ. App.— , 161 S. W.
son, 114 Ark. 359, 169 S. W. 806; CO.
Sumner v. Child, 2 Conn. C07;
]922 Eeal Peoperty. [§ 500
regard to the actual belief of the jury therein/'^ it must
be supported by a possession of at least the period of
the statute of limitations, and ordinarily its application
has been based on a possession for a longer period.^^
When the presumption, so called, involves merely an
inference of the making of a conveyance from the fact
of possession, taken in connection with other circum-
stances, it seems that a period of possession less than the
limitation period might properly be considered in aid
of the inference. ^-
A conveyance from the state may be presumed,^^
although the statute of limitations will not ordinarily
run against the state. ^^ A conveyance will not be pre-
sumed, it seems, on the part of one who was incapaci-
tated to make a conveyance. ^^
Character of possession. Ordinarily at least,
the statutes of limitation with reference to land in terms
impose no requirement upon the person in wrongful
possession as to the character of his possession neces-
10. Ante, this section, notes 65 So. 170; Tracy v. Norwich etc.
7, 8. R. Co., 39 Conn. 382; Jarboe v.
11. Waggener v. Waggener, 3 McAtee, 7 B. Mon. (Ky.) 279;
T. B. Mon. (Ky.) 542; Hunt v. State v. Dickinson, 129 Mich. 221,
Hunt, 3 Mete. (Mass.) 175, 88 N. W. 621; Caruth v. Gillispie,
57 Am. Dec. 130; Kellum v. Corr, 109 Miss. 679, 68 So. 927; Jackson
209 N. Y. 486, 103 N. E. 701; v. McCall, 10 Johns. (N. Y.) 377;
Stockdale v. Young, 3 Strob. L. Reed v. Earnhart, 10 Ired. (N.
S. C.) 501; Coleman v. Coleman, C.) 516; Davis v. McArthur, 78
71 S. C. 521, 51 S. E. 250; Scales N. C. 357. See Editorial note, 29
V. Cockrill, 3 Head (Tenn.) 432; Harv. Law Rev. 88.
Cannon v. Phillips, 2 Sneed 14. Post, § 510.
(Tenn.) 211. 15. Hunt v. Hunt, 3 Mete.
12. Barclay v. Howell, 6 Pet. (Mass.) 175, 37 Am. Dec. 130;
(U. S.) 498, 8 L. Ed. 477; RicarJ Spears v. Oakes, 4 Rich. L. (S.
V. Williams, 7 Wheat, 59, 5 L. C.) 347; Habersham v. Hopkins,
Ed. 398; Courcier v. Graham, 1 4 Strob. L. (S. C.) 238, 53 Am.
Ohio, 330 Stockdale v. Young, 3 Dec. 676 (deed in breach of
Strob. L. (S. C.) 501. trust); Garrett v. Weinberg, 48
13. United States v. Chaves, S. C. 28; Martin v. State, 10
159 U. S. 452, 40 L. Ed. 215; Humph. (Tenn.) 157; Drewery v.
Carter v. Walker, 186 Ala. 140, Nelms, 132 Tenn. 254, 177 S. W.
§ 500] Adverse Possession". 1923
sary to make the bar effective, and it is merely by reason
of the endeavor of the courts adequately to protect the
interests of the rightful owner that certain requirements
in this regard have become established. The most im-
portant of these requirements is that to the effect that
the possession must be hostile or ''adverse" to the true
owner, and so generally has this requirement been recog-
nized, and so important has it been regarded, that the
expression "adverse possession" has come to be general-
ly applied to describe that branch of the law which has
to do with the construction and application of the stat-
utes of limitation in reference to land. The emphasis
thus laid upon the character of the wrongful possession
has the unfortunate effect of obscuring the theory on
which, as above stated, these statutes appear properly
to operate, that is, that, like other statutes of limitation,
they bar the remedy of the person rightfully entitled
not by reason of any merit in the wrongdoer, but by
reason of the demerit of the person who, having a
remedy, fails to exercise it within the time named in
the statute.
It is occasionally said that the adverse possession
which is sufficient to cause the statute of limitations to
run is synonymous with disseisin, as recognized at com-
mon law, but this is not entirely correct. Disseisin is,
properly, "where a man enters into any lands or tene-
ments where his entry is not congeable (i. e. ])ermissi-
ble), and ousted him which has the freehold."'" Dis-
seisin then, as the expression was used in the old l)()oks,
means a wrongful dispossession of one who has a free
hold estate in the land. And it was carefully distinguish-
ed from a mere trespass, which did not involve any
dispossession of the freeholder.*"^ Since then disseisin,
generally speaking, meant tlie wrongful dispo.^sessioii
of one person by another, and the statute of limitations
946; Ferguson v. Prince, 136 17. Co. l.itt. 181a, 2 Preston
Tenn. 543, 190 S. W. 548. Abstracts, 287.
16. Litt. § 279.
1924 Real Peopeety. [§501
I'lms by reason of such wrongful dispossession,' it would
ordinaril}^ be correct to say that the statute runs in
favor of a disseisor as against the disseisee. But it also
runs under circumstances which did not involve a dis-
seisin at common law, as for instance, when a tenant
pur auter vie holds over after the death of cestui que
vie,^^ or a tenant for years disclaims the title of his
landlord.^^ On the other hand the statute may not run
under circumstances which at common law involved a
disseisin. "If a man entereth into land of his own
wrong, and take the profits, his words to hold it at
the will of the owner cannot qualify his wrong, but he is
a disseisor. "-° But the statute of limitations would
not run in favor of one so entering and claiming to be
tenant at will of the rightful owner, for the reason that
his possession lacks the element of adverseness or
hostility, which is necessary to the running of the
statute. Furthermore the expression "disseisin," like
* ' dispossession, ' ' has reference to a change of occupancy,
while the expression "adverse possession " involves
the idea of a continuous occupancy without change.
§ 501. Actual and visible possession. In order that
the statute of limitations shall run against the right to
recover land, it is necessary, not only that the person
rightfully entitled be out of the actual possession, but
also that there be an entry upon the land by another.
The statute does not run as against the true owner in
favor of one who, while having what purports to be a
conveyance of the land, or other paper title, has never
entered on the land.^^ Nor is an entry upon the land
sutKcient in itself, but it must be followed by such acts
IS. Post, § 513(g). 72 Ala. 151; Christy v. Spring
19. Post, § 513(a). VaUey Water Works, 97 Cal. 21,
20. Co. Litt. 271a. 31 Pac. 1110; Walker v. Hughes,
21. White V. Burnley, 20 How. 90 Ga. 52, 15 S. E. 912; Thayer v.
(U. S.) 235, 15 L. Ed. 886; Ward McClellan, 23 Me. 417; Word v.
V. Cochran, 150 U. S. 597, 37 L. Box, 66 Tex. 596, 3 S. W. 93.
Ed. 1195; Lipscomb v. McClellan,
§ 501] Adverse Possession. 1925
of dominion over the land as will constitute what the
law regards as actual possession of the land.-- This re-
quirement of actual possession by another appears to
find sufficient justification in the consideration that un-
less some other person is in possession there is no one
against whom the rightful owner can enforce his riglit
of action or entrj-, and so no one in favor of whom the
statute can operate, and also in the consideration that
if no person is in possession there is nothing to sug-
gest to the rightful owner the desirability or propriety of
asserting his rishts in the land.
What is sufficient to constitute actual possession of
the land depends upon the character of the land and all
the circumstances of the case.^^ It involves, as a general
rule, the doing of acts of dominion on the land, sufficient-
ly pronounced and continuous in character to charge the
owner with notice that an adverse claim to the land is
asserted. Continued residence on the land is no doubt
sufficient to show actual possession f^ and cultivation or
otherwise improving the land has been regarded as suffi-
cient in particular cases,^^ and the erection and main-
tenance of a fence around the land may, in connection
22. The payment of taxes is road & Coal Co. v. Quick, 68 Pa.
not a substitute for possession. St. 189; Alabama State Land Co.
Franklin v. Snuw, 195 Ala. 569, v. Kyle, 99 Ala. 474-, 13 So. 43.
71 So. 93; Mitchell v. Chicago B. Under some of the "short limi-
& Q. R. Co., 265 III. 300, 106 N. tation" statutes, actual residence
E. 833; Frazier v. Ison, 161 Ky. is necessary. Stumpf v. Oster-
379, 170 S. W. 977; Millett v. hage, 94 111. 115; Chiles v. Jones.
Mullen, 95 Me. 400, 49 Atl. 871, 4 Dana (Ky.) 479.
Whitman v. Shaw, 166 Mas.. 451, 25. Butler v. Drake, 62 Minn.
44 N. E. 333; Young v. Grieb, i>5 229, 64 N. W. 559; Susquehanna
Minn. 396, 104 N. W. 131; Leaven- & W. V. Railroad & Coal Co. v.
worth V. Reeves, 106 Miss. 722, Quick. 68 Pa. 189; Congdon v.
64 So. 660; Hays v. Pumphrey, Morgan, 14 S. C. 587; Crapo v.
226 Mo. 119, 125 S. W. 1109. Cameron, 61 Iowa. 477. 16 N. W.
23. The matter is well discuss- 523; Finn v. Wisconsin River
ed in 2 Dembitz Land Titles, § Land Co., 72 Wis. 546. 40 N. W.
181. 209; Johns v. McKibben, 156 111.
24. Susquehanna & W. V. Rail- 71, 40 N. E. 449.
1926
Real Peopeety.
[§ 501
with other circumstances, be sufficient.^*^ On the other
hand, a merely occasional and sporadic use of the land,
an occasional entry to cut timber or grass, or to ap-
propriate other products or profits of the land, does not
usually constitute actual possession.^'^ The question
whether, in any particular case, there was an actual pos-
session of the land, is ordinarily one of fact for the
jury under the instructions of the court.^^
In a number of states ther£ are statutory provisions
as to what shall constitute possession for this purpose,
26. Perry v. Lawson, 112 Ala.
480, 20 So. 611; Carpenter v.
Smith, 76 Ark. 447, 88 S. W.
976; Brumagim v. Bradshaw, 39
Cal. 24, 50; Ritzman v. Aspel-
meier, 89 Iowa, 179, 56 N. W.
421; Lamereaux v. Creveling, 103
Mich. 501, 61 N. W. 783; Barker
V. Publisher's Paper Co., — N. H.
— , 97 Atl. 749; Moore v. Curtis,
169 N. C. 74, 85 S. E. 132; Am-
brose V. Huntington, 34 Ore. 484,
56 Pac. 513; Illinois Steel Co. v.
Bilot, 109 Wis. 418, 84 N. W.
855, 85 N. W. 402, 83 Am. St.
Rep. 905.
27. Chastang v. Chastang, 141
Ala. 451, 109 Am. St. Rep. 45, 37
So. 799; Denham v. Holeman, 26
Ga. 182, 71 Am. Dec. 198; White
V. Harris, 206 111. 584, 69 N. E.
519; Smith v. Chapman, 160 Ky.
400, 169 S. W. 834; Lacroix v.
Crane, 133 La. 227, 62 So. 657;
Malone v. Long, 128 Md. 377, 97
Atl. 643; Parker v. Parker, 1
Allen (Mass.) 245; Leavenworth
V. Reeves, 106 Miss. 722, 64 So.
666; Herbst v. Merrifield, 133 Mo.
267, 34 S. W. 571; Cornelius v.
Giberson, 25 N. J. L. 1; Wheeler
V. Spinola, 54 N. Y. 377; Camp-
bell V. Miller, 165 N. C. 51, 80 S.
E. 974; Wheeler v. Taylor, 32
Ore. 421, 67 Am. St. Rep. 540, 52
Pac. 183; Wheeler v. Winn, 53
Pa. 122, 91 Am. Dec. 186; Stevens
V. Pendregon, 106 Tex. 576, 173
S. W. 210; Wilson v. Blake, 53
Vt. 305. 1 Compare McLellan v.
McFadden, 114 Me. 242, 95 Atl.
1025; D. W. Alderman & Sons
Co. V. McKnight, 95 S. C. 245,
78 S. E. 982; Chase v. Eddy, 88
Vt. 235, 92 Atl. 99.
So it has been decided that the
mere pasturing of cattle ' on
land did not, in view of the
character of the land and the
custom of the community, involve
an actual possession; Bergere v.
United States, 168 U. S. 66, 42
L. Ed. 383; McCloskey v. Hayden,
169 111. 297, 48 N. E. 432; Fuentes
V. McDonald, 85 Tex. 132, 20 S.
W. 43; Chilton v. White, 72 W.
Va. 545, 78 S. E. 1048.
28. Anderson v. Bock, 15 How.
(U. S.) 323, 14 L. Ed. 714; Trues-
dale V. Ford, 37 111. 210; Arm-
strong V. Risteau, 5 Md. 256, 59
Am. Dec. 115; Pendill v. Mar-
quette County Agricultural Soc,
95 111. 210; Martin v. Rector, 30
Hun (N. Y.) 138; O'Hara v.
Richardson, 46 Pa. St. 385.
§ 501]
Adverse Possessiox.
]92;
a usual one being that land shall be regarded as possess-
ed by one when it has been protected by him by means
of a substantial enclosure, or when it has been "usually
cultivated and improved,"-^ this latter phrase being
construed as equivalent to cultivated and improved as
land of a similar character is usually cultivated and
improved.^*'
The possession need not be by the adverse claimant
himself, he being regarded as in actual possession for
this purpose if one holding under him as his tenant or
agent is in possession.^^
The possession must, it is said, be ''visible" and
"notorious," so that the owner may have an opportunity
to learn of the adverse claim, and to protect his rights.'^-
Actual knowledge of the possession on the part of the
true owner is not, however, necessary, it being suffi-
cient that he could have learned thereof bv the exercise
29. Wood, Limitations (4th
Ed.) § 255.
30. See Mattes v. Hall,— (Cal.)
—132 Pac. 295; Trask v. Success
Mining Co., 28 Idaho, 483, 155
Pac. 288; Ramapo Mfg. Co. v.
Mapes, 216 N. Y. 362, 110 N. E.
772.
31. Holtzman v. Douglas, 168
U. S. 278; Elliott v. Dycke, 78
Ala. 1; Beckett v. Petaluma, 171
Cal. 309, 153 Pac. 20; Kepley v.
Scully, 185 111. 52, 57 N. E. 187;
Atty. Gen. v. Ellis, 198 Mass. 91,
15 L. R. A. (N. S.) 1120, 84 N.
E. 430; Ramsey v. Glenny, 45
Minn. 401, 22 Am. St. Rep. 736,
48 N. W. 322; Lindenmayer v.
Gunst, 70 Miss. 693, 35 Am. St.
Rep. 685, 13 So. 252; Alexander
V. Gibbon, 118 N. C. 796, 54 Am.
St. Rep. 757, 24 S. E. 748; Strom
V. Hancock Land Co., 70 Ore.
101, 140 Pac. 458; Whitehead v.
Foley, 28 Tex. 1; Chamberlain v.
Pybas, 81 Tex. 511, 17 S. W. 50.
Such possession by one person
by the hands of another has been
conveniently designated as "medi-
ate posession" as distinct from
the "immediate possession' of the
person who is actually in the
possession of the land. Salmond's
Jurisprudence, § 101.
32. Lawrence v. Doe, 144 Ala.
524, 41 So. 612; De Frieze v.
Quint, 94 Cal. 653, 28 Am. St.
Rep. 151, 30 Pac. 1 ; Grimes v.
Ragiand, 28 Ga. 123; McCIeUan
V. Kellogg. 17 111. 498; Haas v.
Wilson, 97 Kan. 176, 154 Pac.
1018; Frazier v. Ison, 161 Ky.
379, 170 S. W. 977; Reatty v.
Mason, 30 Md. 409; Fugate v.
Pierce, 49 Mo. 441; Little v. Down-
ing, 37 N. H. 355; King v. Wells.
94 N. C. 344; Wade v. Crouch.
14 Okla. 593; Bowman v. Bow-
man. 35 Ore. 279; Daniel v. Day-
ton Coal & Iron Co., 132 Tenn.,
1928
Real Pkoperty.
[§ 502
of proper diligence."^ And since the requisites of
''actual" possession are usually defined with reference
to the sufficiency of such acts to affect the owner with
notice of the adverse claim, it would seem somewhat
questionable whether there can be any ''actual" posses-
sion which is not at the same time "visible" and "no-
torious." There are, however, statements to be found
that notoriety of possession is not necessary in case
the possession is actually known to the rightful owner,^^
statements which suggest, by implication, that there
might be a possession sufficient to satisfy the require-
ment of actual i^ossession, but not sufficient to satisfy
that of visible and notorious jDOSsession.
§ 502. Exclusiveness of possession. In order that
one may acquire rights in land by possession for the
statutory period, the possession must, it is frequently
501, 178 S. W. 1187; Mhoon v.
Cain, 77 Tex. 416; Dignan v.
Nelson, 26 Utah, 186, 72 Pac.
936.
33. Bynum v. Hewlett, 137 Ala.
333, 34 Sj. 391; School Dist. No.
8 of Tliompson v. Lynch, 33
Conn. 336; St. Louis A. & T. H.
R. Co. V. Nugent, 152 111 119,
39 N. E. 263; Alden v. Gilmorp.
13 Me. 178; Saumels v. Borrow-
scale, 104 Mass. 207; Merritt v.
Westerman, 180 Mich. 449, 1-17 N.
W. 483; Village of Glencoe v.
Wadsworth, 48 Minn. 402, 51 N.
W. ;;77; Spicer v. Spicer, 249
Mo. 51^2, Ann. Cas. 1914D, 238,
155 S. W. 832. See Editorial
note, 11 Columbia Law Rev. 673;
Carney v. Hennessey, 74 Conn.
107. 53 L. R. A. 699, 92 Am. St.
Rep. 199, 49 Atl. 910; St. Louis
etc. R. Co. V. Nugent, 152 111.
119, 39 N. E. 263; Denham v.
Holeman, 26 Ga. 182.
34. Brown v. Cockrell, 33 Ala.
47; Trotter v. Neal, 50 Ark. 340,
7 S. W. 384; Clarke v. Gilbert, 39
Conn. 94; Cook v. Babcock, 11
Cush. (Mass.) 206; McCaughn v.
Young, 85 Miss. 277, 37 So. 839;
Norton v. Kowazek, — (Mo.) — 193
S. W. 556; Dausch v. Crane, 109
Mo. 323, 19 S. W. 61; Pease v.
Whitney,— N. H.— , 98 Atl. 62;
Sheaffer v. Eakman, 56 Pa. St.
144; McAuliff v. Parker, 10 Wash.
141, 38 Pac. 744.
35. Ward v. Cochran, 150 U. S.
597, 37 L. Ed. 1195; Goodson v.
Brothers, 111 Ala. 589, 20 So.
443; Towle v. Quante, 246 111.
568, 92 N. E. 967; Stump v.
Henry, 6 Md. 201, 61 Am. Dec.
301; Bailey v. Carlton, 12 N. H.
9, 37 Am. Dec. 190; Cahill v.
Palmer, 45 N. Y. 478; CoUins
V. Lynch, 167 Pa. St. 635, 31 Atl.
921.
§ 50l>]
ADviiESE Possession.
1929
said, be exclusive.''^ It must be exclusive of the true
owner and also of third persons. If the true owner is on
the laud as o^^^ler, the possession is, in the eye of the
law, in such o^^^ler,^^ and another person who is on
the land has, not only no adverse possession, but no pos-
session whatsoever. He is on the land either as a licensee
or a trespasser.^'^ If, however, the true owner is sho^vn
to be on the land merely as a licensee, not asserting, by
word or act, any right of o^vnership or possession, his
presence on the land does not amount to an actual
possession, and the possession may properly be attri-
buted to him who is on the land exercising or claiming
exclusive control thereof.^*
As regards the requirement that the possession be
exclusive of third persons, this appears to follow from
the very nature of legal possession. If two or more
persons are on land, neither having title thereto, and
each claiming possession independently of the other,
neither can be regarded as in legal possession of
36. Reading v. Royston, Salk.
423; Gafford v. Strauss, 89 Ala.
282, 7 L. R. A. 568, 18 Am. St.
Rep. Ill, 7 So. 248; Inskup v.
Shields, 4 Harr. (Del.) 345;
Spencer Christian Church's Trus-
tees V. Thomas, 27 Ky. L. Rep.
250, 84 S. W. 750; Royer v. Ben-
low, 10 Serg. & R. (Pa.) 303;
Illinois Steel Co. v. Tamms, 154
Wis. 340, 141 N. W. 1011; Litt. S
701; Lightwood, Possession of
Land, 36.
37. See Gafford v. Strauss, 89
Ala. 282, 7 L. R. A. 568, 18 Am.
St. Rep. Ill, 7 So. 248; Hoyt v.
Zumwalt, 149 Cal. 381, 86 Pao.
600; Brumback v. Brumback, 198
III. 66, 64 N. E. 741; Bellis v.
Bellis, 122 Mass. 414; Smith v.
Hitchcock, 38 Neb. 104, 56 N. W.
791; O'Hara v. Richardson, 46 Pa.
385; Lloyd v. Rawl, 63 S C 219,
41 S. E. 312; Larwell v. Stevens.
(C. C.) 12 Fed. 559.
The true owner has been re-
garded as being in possession of
land over which the eaves of his
house extended, so as to prevent
the assertion of adverse posses-
sion by another who made use of
the land under the eaves. Lins
V. Seefeld, 126 Wis. 610. 105 N.
W. 917, approved 24 Harv. Law
Rev. at p. 232. Contra, Randall
V. Sanderson, 111 Mass. 114;
Rooney v. Retry, 22 Ont. L. llo\^.
101.
38. Feliz v. Feiiz, 105 Cal. 1.
38 Pac. 521; Owsley v. Owsley.
117 Ky. 47, 77 S. W. 397; First
Baptist Church of Sharon v. Har-
per. 191 Mhs'^ 106 77 y F. 778.
1930 EE.VL Pkoperty. [§ 503
the land. Legal possession is in nature exclusive."^
There is, however, one case in which the possession of
an individual is not exclusive, and that is in the case
of co-ownership. In that case, however, the possessions
of the co-o\\mers are not separate possessions, but
rather a single possession, that is, as stated by Black-
stone, a unity of possession exists.^^ In the case of
persons thus claiming as co-owners the possession of
each or, it seems, of one alone,* ^ will operate in favor of
all.''^
One may be in possession, for the purpose of
acquiring land under the statutes of limitation, al-
though he permits the public to pass over the land,*^
nor is the existence of an easement thereover in favor
of another individual,*"* or of the public,*^ inconsistent
with his acquisition of title.
§ 503. Hostility of possession. In order that the
statute of limitations may bar one of his right to
recover land it is necessary, not only that the land be
in possession of another, but that such possession be
"adverse" or "hostile" to the true o^\Tier. It is some-
what surprising, in view of the frequency with which
the courts have recognized this requirement, that they
have so seldom ventured to explain what they mean by
an adverse or hostile possession as distinguished from
one which is not adverse or hostile. A possession, it
39. Lightwood, Possession of 44. Randall v. Sanderson, 111
Land, 14; Pollor'k & Wright, Pos- Mass. 114; Barker v. Publishers'
session 21. Paper Co.— N. H.— 97 Atl. 749;
40. 2 Blackst. Comm. 180, 191. Sowles v. Butler, 71 Vt. 271, 44
41. Woodruff V. Roysden, 105 Atl. 355.
Tenn. 491, 80 Am. St. Rep. 905, 45. Webber v. Clark, 74 Cal.
58 S. W. 1066. 11, 15 Pac. 431; Cady v. Fitz-
42. Hutchinson v. Chicago etc. simmons, 50 Conn. 209; Rupley v.
R. Co., 41 Wis. 541; Beedy v. Fraser, 132 Minn. 311, 156 N.
Dine, 31 Pa. 13; Ward v. Ward, W. 350; Woodruff v. Paddock, 130
L. R. 6 Ch. 789. N. Y. 618, 29 N. E. 1021; Cocke
43. Bendorff v. Uihlein, 1.''.2 v. Texas etc. R. Co.. 46 Tex. Civ.
Tenn. 193, 177 S. W. 481;. App. 363, 103 S. W. 407.
§ 503]
Adveese Possession.
1931
appears, is adverse to the tiiie owner when it is iiiiac-
companied by any recognition, express or inferrible from
circumstances, of the right in the latter. It does not
involve the necessity of an express denial of the title
of the true o^vner, and, it is evident, in the majority of
cases there is no such denial.
The requirement that the possession be adverse has
its logical justification in the consideration that the rec-
ognition by the person in possession of the title of
the true owner is calculated to lull the latter into a false
sense of security and so to induce him to refrain from
asserting his right by entry or action. And in accord
with this consideration are the decisions,"**^ very con-
siderable in number, that if the possession w^as originally
not adverse to the true owner, the statute cannot be set
in motion against him until the possessor has changed
the character of the possession by a denial of the title
of such owner, and such change has been brought to
the knowledge of the latter.
46. Trufant v. White, 99 Ala.
536; Cotton v. White, 131 Ark.
273, 199 S. W. 116; Kerns v.
Dean, 77 Cal. 555; Millett v.
Lagomarsino, 107 Cal. 102, 38
Pac. 308: Harrall v. Leverty, 50
Conn. 46, 47 Am. Rep. 608; Trask
V. Success Mining Co., 28 Idaho,
483, 155 Pac. 288; Thompson v.
Toledo, St. L. & W. R. Co. 271 111.
11, 110 N. E. 901; Kirby v. Kirby,
236 111. 255, 86 N. E. 259; Mc-
Clenahan v. Stevenson, 118 Iowa,
106, 91 N. W. 925; Frazier v.
Morris, 161 Ky. 72, 170 S. W.
496; Lancey v. Parks, 102 Me. 135.
66 Atl. 311; Hall v. Stevens, 9
Mete. (Mass.) 418; Compau v.
Lafferty, 50 Mich. 114, 15 N. W.
40; Collins v. Colleran. 86 Minn.
199, 90 N. W. 3o4; Stevenson v.
Black, 168 Mo. 549, 68 S. W. 909;
McCune v. Coodwillie, 204 Mo.
306, 102 S. W. 997; Smith v.
Hitchcock, 38 Neb. 104, 56 N. W.
791; Lewis v. New York & H.
R. Co., 162 N. Y. 202, 56 N. E.
540; Acton v. Culbertson, 38
Okla. 280, 132 Pac. 81,2; Coqullle
Mill & Mercantile Co. v. Johnson,
52 Ore. 547, 1:52 Am. St. Rep.
716, 98 Pac. 132; Bannon v. Bran-
don, 34 Pa. St 263, 75 Am. Dec.
655; Johns v. Johns, 244 Pa. 48,
90 Atl. 535; McCutchen v. Mc-
Cutchen, 77 S. C. 129, 12 L. R.
A. (N. S.) 1140, 57 S. E. 678;
Duke V. Harper, 6 Yerg. (Tenn.)
280, 27 Am. Dec. 462; Ilulvey v.
Hulvey, 92 Va. 192, 23 S. R.
233; Graydon v. liurd, 55 Fed.
724, 5 C. C. A. 258. But it has
been decided that, if one pur-
chases land in the possession
of one other than his vendor,
he is charired wilh noticf Hint
1932
Real Property.
[§ 503
It is sometimes said that the possession must be
adverse, not only to the rightful owner, but to the whole
world.^^ Such a requirement corresponds, apjjarently,
in some degree to the requirement, so frequently as-
serted, that the possession be under claim of title, which
is the subject of discussion in the following section.
The basis of the asserted requirement that possession
be adverse to the whole world is not readily percejitible.
If the possession is adverse to the rightful owner, it is
for the latter to assert his rights, regardless of whether
the person in possession mistakenly assumes that the
title is in a third person."*"^
Question of fact. The question whether the
possession was adverse is ordinarily a question of
fact.^8
That the possession was adverse may be shown by
evidence that possession was taken under color of title,^^
the possession, though original-
ly subservient to the vendor's
title, had become hostile. How-
att V. Green, 139 Mich. 289,
102 N. W. 734.
47. Ashford v. Ashford, 136
Ala. 632, 96 Am. S't. Rep. 82
34 So. 10 (dictum) ; Ballard v.
Hansen, 33 Neb. 861, 51 N. W.
295; Bracken v. Union Pac. R.
Co., 75 Fed. 347, 21 C. C. A.
387 (Nebraska); Altschul v.
O'Neill, 35 Ore. 202, 58 Pac. 95;
McNaught-Collins Imp. Co. v.
May, 52 Wash. 632, 101 Pac.
237.
47a. That the possession need
not be adverse to the whole
world, see Skipwith v. Martin,
50 Ark. 141, 6 S. W. 514; Hayes
V. Martin, 45 Cal. 559; McManus
V. O'Sullivan, 48 Cal. 485;
Adams v. Guerard, 29 Ga. 651,
76 Am. Dec. 624; Mather v.
Walsh, 107 Mo. 121, 17 S. W.
755; Smith v. Badura, 70 Ore.
58, 139 Pac. 107; Smith v. Jones,
103 Tex. 632, 31 L. R. A. (N.
S.) 150, 132 S. W. 469. See
note in 14 Harv. Law Rev. at
p. 374, criticizing Bond v. O'Gara,
177 Mass. 139, 83 Am. St. Rep.
265, 58 N. E. 189.
48. Hogan v. Kurtz, 94 U. S.
773, 24 L. Ed. 317; Snow v.
Bray, Ala., 73 So. 542; Stevens,
V. Velde. 138 Minn. 59, 163 N.
W. 796; Page v. Gaskill, 84
N. J. L. 615, 87 Atl. 460;
Ramapo Mfg. Co. v. Mapes, 216
N. Y. 362, 110 N. E. 772; Stokes
V. Murray. 95 S. C. 120, 78 S.
E. 741.
49. Pillow V. Roberts, 13 How.
(U. S.) 472, 14 L. Ed. 228;
Oglesby V. Hollistel", 76 Cal. 136,
9 Am. St. Rep. 177, 18 Pac.
146; Taylor v. Danbury Public
Hall Co., 35 Conn. 4.30; Ken-
drick V. Latham, 25 Fla. 819, 6
§ 503]
Adverse Possespiox,
19.^",
as well as by evidence of the declarations of the person
in possession accompanying his possession.^'' It may
also be shown by evidence of acts by the person in pos-
session of such a character as would not be done by
him if he conceded the other's title."' ^ The payment by
him of taxes upon the land has been regarded as evi-
dence that the possession is adverse. ''-
Burden of proof. Since the element of liostil-
ity or "adverseness" involves merely the absence of a
course of action of an affirmative character, that is, of
So. 871; Godfrej' v. Dixon Power
etc. Co., 228 lU. 487, 81 N. E.
1089; Brady v. Baltimore, 130 Md.
506, 101 Atl. 142 isemble); Cha-
bert V. Russell, 109 Mich. 571,
67 N. W. 902; Brown v. Peaslee,
69 N. H. 436, 45 Atl. 234; Warne
V. Greenbaum— (N. J.)— 101 Atl.
568; Myers v. Folkman, 89 N.
J. L. 390, 99 Atl. 97; La Frani-
bois V. Jackson, 8 Cow. 589, 18
Am. Dec. 463; Steinwand v.
Brown, 38 N. D. 602, KiG N. W.
129; Dikeman v. Parrish, 6 Pa.
St. 210, 47 Am. Dec. 455.
50. Gibson v. Gaines, — Ala.
— , 73 So. 929; Stockton Sav.
Bank v. Staples, 98 Cal. 189,
32 Pac. 936; Knight v. Knight,
178 Til. 553, 53 N. E. 306; Rand
V. Huff, 59 Kan. 777, 53 Pac.
483; Swope v. Ward, 185 Mo.
316, 84 S. W. 895; Harnage v.
Berry, 43 Tex. 567. The admis-
sibility of such evidence is dis-
cussed with references to cases,
in '■'> Wigmore, Evidence, § 1778.
51. Grim v. Murphy, 110 111.
271; Rennert v. Shirk, 163 Ind.
542, 72 N. E. 546; Dyer v. Eld-
ridge, 136 Ind. 654, .'36 N. E. 522;
Dean v. Goddard, 55 Minn. 290,
56 N. W. 1060; Whitaker v. Erie
2 R. P.— 47
Shooting Club, 102 Mich. 454;
60 N. W. 983; Davis v. Bowman,
55 Miss. 671; Benne v. Miller, 149
Mo. 228, 50 S. W. 824; Brock v.
Bear, 100 Va. 562, 42 S. E. 307;
Pioneer Wood Pulp Co. v. Chan-
dos, 78 Wis. 526, 47 N. W. 661.
52. Holtzman v. Douglas, 168
U. S. 278, 42 L. Ed. 466; Chas-
tang V. Chastang, 141 Ala. 451,
109 Am. St. Rep. 45, 'M So. 799;
Gee V. Hatley, 114 Ark. 376, 170
S. W. 72; Frick v. Sinon, 75 Cal.
337, 7 Am. St. Rep. 177, 17 Pac.
439; Wren v. Parker. 57 Conn.
529, 6 L. R. A. 80, 14 Am. St.
Rep. 127. 18 Atl. 790; Wilbur
v. Cedar Rapids & M. R. R. Co.,
116 Iowa, 65, 89 N. W. 101;
Carter v. Clark, 92 Me. 225. 42
At. 398; Whitman v. Shaw, 166
Mass. 451, 44 N. E. 333; Sauers
V. Giddings, 90 Mich. 50, 51
N. W. 265: Mattso.»i v. Warner.
115 Minn. 520, 132 N. W. 1127:
Draper v. Shoot, 25 Mo. 197. 69
Am. Dec. 262; Minimelberger-
Harrison Lumber Co. v. Craig,
248 Mo. 319, 154 S. W. 73;
Rover v. Benlow. 10 Serg. u R.
30.!; Hunter v. Malone, 49 Tex.
Civ. App. 116, 108 S. W. 709.
1934 Eeal Property. [§ 503
the recognition of the other's title, it would seem that
the lack of hostility, rather than the presence thereof,
is an affirmative fact to he proven, in the ahsence of cir-
cumstances which are recognized as legally sufficient to
create a presumption that the possession is not hostile,
and this accords witli the reason of the matter. Know-
ing, or having reason to know, that his land is in the
possession of another, the true owner should he barred
by reason of his laches in asserting his own right of pos-
session, unless he can show that he was induced so to
do by the possessor's recognition and admission of his
rights. In some cases this view has been adopted, that
the possession will, in the absence of countervailing
evidence, be presumed to be hostile,^^ and this view
would seem to be more or less involved in the numerous
decisions ""^ that, by reason of a particular relation,
such as that of landlord and tenant or that
of trustee and cestui que trust, the posses-
sion is prima facie not hostile or adverse, this appar-
ently implying that, in the absence of such a relation,
the possession is prima facie hostile, or at least that it
is not prima facie lacking in hostility. It has, however,
frequently been asserted that the person claiming by
force of the statute of limitations has the burden of
53. Boone v. Chiles, 10 Pet. 53 S. C. 126, 121 S. E. 3; Toltec
177, 223; Alexander v. Wheeler, Ranch Co. v. Babcock, 24 Utah,
69 Ala. 332; Hammond v. Crosby. 183, 606 Pac. 876; Morse v.
68 Ga. 767; Craven v. Craven, Churchill, 41 Vt. 649; Illinois
181 Ind. 553, 103 N. E. 333, 105 Steel Co. v. Budzisz, 106 Wis.
N. E. 806; Frazier v. Morris, 499, 48 L. R. A. 830, 80 Am.
161 Ky. 72, 170 S. W. 496; St. Rep. 54; 81 N. W. 1027, 82
Zabriska's Succession, 119 La. N. W. 534.
1076, 44 So. 893; Greene v. That the user of another's
Anglemire, 77 Mich. 168, 43 N. land is presumed to be adverse,
W. 772; Davis v. Bowmar, 55 for the purpose of the creation
Miss. 742; Monnot v. Murphy, of a prescriptive right In the
207 N. Y. 240, 100 N. E. 742; nature of an easement, see post,
Bryan v. Spivey, 109 N. C. 57, § 519, note 73.
13 S. E. 766; Neel v. McElhenny. 54. Post, § 513.
69 Pa. St. 300; Satcher v. Grice,
§ 503]
Adverse Possession.
1935
showing that his possession was hostile or adverse.^'' It
is presumably true that such wrongful possessor has the
burden of proof in the sense of risk of non persuasion
of the jury, but in so far as we mean by burden of proof
the duty of producing evidence,^** the burden as to the
hostility of the possession properly shifts, it is sub-
mitted, to the person having documentary title, so soon
as the other has introduced evidence of his possession
for the statutory period. When it is said, as it fre-
quently is said,'^'''^ that the burden of showing adverse
possession is upon the party asserting it, this jirosum-
ably refers to the burden of persuading the jury, and
55. Ricard v. Williams, 7
Wheat. 121 (semble) ; Davis v.
Caldwell, 107 Ala. 526, 18 So.
103; Beasley v. Howell, 117 Ala.
499, 22 So. 989; Love v. Cowger,
130 Ark. 445, 197 S. W. 853;
Janke v. McMahon, Cal. App.,
133 Pac. 21; Russell v. Davis,
38 Conn. 562; Barrs v. Brace,
38 Fla. 265, 20 So. 991; Mc-
Cullough V. East Tennessee, etc.
R. Co., 97 Ga. 373, 23 S. E.
838; Thompson v. Toledo, St.
Louis & W. R. Co., 271 111. 11,
110 N. E. 901; Benedict v. Bush-
nell, — Ind. App.—, 117 N. E.
267; McClenahan v. Stevenson,
118 Iowa, 106, 91 N. W. 925;
Edwards v. Fleming, 83 Kan. 653,
33 L. R. A. (N. S.) 923, 112
Pac. 836; Mounts v. Mounts, 155
Ky. 363, 159 S. W. 819; McCune
V. Goodwillie, 204 Mo. .306, 102 S.
W. 891; Smith v. Sedalia. 152 Mo.
283, 48 L. R. A. 711, 53 S. W.
907; Weeping Water v. Reed, 21
Neb. 261, 31 N. W. 797; Johnson
V. Atlantic R. Co., 73 N. J. L. 767,
64 Atl. 1061; Licari v. Carr,
84 N. .L L. 345. 86 Atl. 421;
Heller v. Cohen, 154 N. Y. 299,
48 N. E. 527; Rathbunville Union
Cemetery Ass'n v. Betson, 208 N.
Y. 364, 101 N. E. 892; Monk v.
Wilmington, 137 N. C. 322, 49
S. E. 345; Johns v. Johns, 244
Pa. 48, 90 Atl. 535; Smith v.
Estill, 87 Tex. 264, 28 S. W. 801.
56. 4 Wigmore, Evidence, §§
2485-2490.
56a. See e. g. Jones v. Temple,
117 Ark. 579, 176 S. W. 143;
Tippenhauer v. Tippenhauer, 158
Ky. 639, 166 S. W. 225: Spicer
v. Spicer, (Mo.), 155 S. W. 832;
Vanderbilt v. Chapman, 172 N.
C. 809, L. R. A. 1917C 143, 94
S. E. 703; Stokes v. Murray, 95
S. C. 120, 78 S. E. 741; Village
Mills Co. V. Houston Oil Co.,
— (Tex.)— 186 S. W. 785; People's
Savings Bank v. Bufford, 90
Wash. 204. 155 Pac. 1068. Oc-
casionally the statute In terms
places the burden of proof on
the party asserting adverse pos-
session. Blue llidgo Land Co.
V. Floyd, 167 N. C. 6S6, 83 S. E.
687, 88 S. E. 862; Slipppi-'k v.
Sheppick, 44 T'tah. 131. 13S Pac.
1169.
193G Real Property. [§ 504
such is probably the sense in wliicli the expression
''burden of proof" is used in some of the cases, above
cited, in which it is stated that the person claiming by
force of the statute of limitations has the burden of
showing that his possession was hostile or adverse.
When possession was taken under circumstances
which ordinarily give rise to a presumption that it is
not adverse, the burden is obviously upon the possessor
of showing that,- by reason of the course of action
adopted by him, such as denial of the title of the rightful
owner, his possession has become adverse.^"^
§ 504. Necessity of claim of title. It has been
asserted, by perhaps most of the courts in this country,
that in order that the statute of limitations may run in
favor of one in possession of land, the possession must
be under claim of right or title. ^^ There would seem
reason to doubt, however, whether, in asserting this re-
quirement, the courts ordinarily have in mind anything
more than a restatement of the requirement of hostility
of possession. ^'^ They do not, so far as the writer has
57. Zeller v. Eckert 4 How. v. Wright, .38 Nev. 25, 143 Pac.
(U. S.) 295; McClenahan v. 1184; Vanderbilt v. Chapman, 175
Stevenson, 118 Iowa, 106, 91 N. N. C. 11, 94 S. E. 703; Thomas
W. 925; McCune v. GoodwiUie, v. Spencer, 66 Ore. 359, 133
204 Mo. 306, 102 S. W. 997; Pac. 822; Vermont Marble Co. v.
Collins V. Colleran, 86 Minn. 199, Eastman, 91 Vt. 425, 101 Atl.
90 N. W. 364; Hall v. Stevens, 151; Skanski v. Novak, 84 Wash.
9 Mete. (Mass.) 418. See aiite. 39, 146 Pac. 160; Custer v. Hall,
this section, note 46. 71 W. Va. 119, 76 S. E. 183.
58. See e. g. McLester Bldg. 59. See, for instance, occas-
Co. V. Upchurch, 18 Ala. 23, 60 sional statements that the pes-
So. 173; Janke v. McMahon, 21 session "must be adverse, that is,
Cal. App. 781, 133 Pac. 21; under a claim of right." Sar-
Stowell V. Lynch, 269 111. 437, gent v. Ballard, 9 Pick. (Mass.)
110 N. E. 49; Goulding v. 251; Colvin v. Burnet, 17 Wend.
Shonquist, 159 Iowa, 647, 141 N. (N. Y.) 565; State v. Heaphy,
W. 24; Chesapeake & O. R. Co. 88 Vt. 428, 92 Atl. 813. And see
V. Rosskamp, 179 Ky. 175, 200 S. O'DonneU v. McCool. 89 Wash.
W. 496; Erickson v. Crosby, 100 537, 154 Pac. 1090.
Neb. 372, 160 N. W. 94: Howard
§ 504]
Adverse Possession.
193^
observed, undertake to explain why a claim of title on
the part of the possessor is necessary, and it appears
that the rightful owner is quite sufficiently protected by
the requirement of adverseness or hostility of posses-
sion.*' ° Did this requirement of the making of a claim
of title really mean what it appears on its face to mean,
that the person in possession must state that the land
belongs to him, the effect would be, approximately, to
limit the operation of the statute of limitations to the
case of possession by one who believes himself to have
title, since one who knows that he has no title is not apt
to claim title until his title is questioned.
The notion of the necessity of a claim of title may
possibly have originated in the following manner. One is
not in adverse possession in case he makes acknowledg-
ment to the rightful owner of the latter 's title, that is,
60. TRat claim of right or
title is unnecessary, see Johnson
V. Gorham, 38 Conn. 513; Car-
ney V. Hennessey, 74 Conn. 107,
53 L. R. A. 699, 92 Am. St. Rep.
199, 49 Atl. 910; Campau v.
Dubois, 39 Mich. 274; CarroU
V. Mays, 8 Dana. (Ky.) 178
(semble) ; Rupley v. Fraser, 132
Minn. 311. 156 N. W. 350; Rude
V. Marshall, 54 Mont. 27, 166 Pac.
298; Parker v. Southwick, 6
Watts (Pa.) 377, per Gibson, C.
J.; Cox V. Sherman Hotel Co.,
(Tex. Civ. App.), 47 S. W. 808.
Claim of title is not referred
to as one of the necessary ele-
ments of adverse possession by
the Supreme Court of the United
States. See Holtzman v. Doug-
las, 168 U. S. 278, 42 L. Ed. 466.
"The whole inquiry is reduced
to the fact of entering and the
intention to usurp possession."
Per Johnson, J., in Bradstreet
V. Huntington. T, Pet. 402, 439.
In Texas the statute defines
adverse possession as an actual
and visible appropriation of the
land, commenced and continued
under a "claim of right incon-
sistent with and hostile to the
claim of another," but the ex-
pression claim of right in the
statute has been decided to mean
merely that "the entry of the
limitation claimant must be with
the intent to claim the land as
his own, to hold it for himself."
and that "such must continue
to be the nature of his posses-
sion." Houston Oil Co. of Texas
V. Jones, —Tex.-. 198 S. W.
290. See Brown v. Fisher. —
Tex. Civ.—, 193 S. W. 357. And
in Wisconsin a statutory require-
ment that the land be held under
"claim of title" was regardpd as
satisfied if there was an entry
hostile to the whole worli. and
an Intention on the part of (he
possessor "lo Imld llie land as
1938 Eeal Propekty. [§ 504
in case he disclaims title in himself,^^ and there is au-
thority for the view that his possession is not adverse
if he acknowledges the title of the rightful owner b}^
a communication to a third person.*^^ It being conceded
that the statute does not run if there is a disclaimer of
title by the person in possession, it was perhaps as-
sumed as a corollary that a claim of title by such per-
son was necessary to the running of the statute. This
explanation of the origin of the requirement is, how-
ever, purely conjectural, and occasionally a different
theory in this regard is indicated by expressions to the
effect that the statute of limitations runs only when
there is a technical disseisin, as recognized at common
law, and that such a disseisin involves the necessity of
a claim of title. In reference to such a theory, it may
be said in the first place, as before explained, that ad-
verse possession and disseisin are not absolutely the
same.^^ In the second place, claim of title, that is, of
right, appears never to have been regarded as neces-
sary to effectuate a disseisin. The old digests make no
mention of such a requirement, and that it did not
exist is sufficiently apparent from the fact that there
might be disseisin by one person for the use of another,
which operated as a disseisin by the former alone until
agreed to by the latter, and after such agreement made
them both disseisors.^* Indeed the repeated statements
that one who wrongfully dispossesses another, though
he claims merely as tenant for years or by statute, or
even as tenant at will, is a disseisor, for the reason that
he cannot qualify his own wrong,^^ would seem to show
that claim of title by him was immaterial."'^
his own." Chicago & N. W. Rwy. Co. Litt. 180b.
Co. V. Groh, 85 Wis. 641, 55 N. 65. 1 Rolle's Abr. Disseisin
W. 714. (I); Vin. Abr. Disseisin (I);
61. Post. § 507, note 37. Com. Dig. Seisin, (Fl); Co. Litt.
62. Post, § 507, note 38. 271. See post, 511, notes 16-18.
63. Ante, § 500. notes 18-20. 66. As to the asserted neces-
64. See Vin. Abr. Disseisin sity, that to constitute a dis-
(B); Bac. Abr. Disseisin (A); seisin, there must be an inten-
§ 504] Adverse Possession. 193i)
It has been said that by claim of right or title, in
connection with the doctrine of adverse possession, is
meant merely "an intention to appropriate and hold the
land as owner, and to the exclusion, rightfully or wrons-
fully, of every one else."*^' It is most unfortunate, if
this is the idea which the courts intend to convey, that
they use language which on its face means something
entirely different. The presence of such an intention to
appropriate is no doubt necessary for the purpose of
adverse possession, but this is, it is submitted, not be-
cause without it the possession would not be adverse,
but because without it there would be no possession.*^^
It was recognized at common law that, in determin-
ing whether one was a disseisor or a trespasser merely,
his intention, as indicated by his acts, was to be con-
sidered,^^ and so at the present day, in determining
whether one person has taken possession of property
previously in the possession of another, his acts must
be such as to show his intention to exercise exclusive
control, at least for the time being."^ And this, it is
conceived, must be the meaning of the occasional judicial
statements that, in order to acquire title by adverse
tion to claim a fee, see post, § hoc fecerit, language which is
511, note 19. again quoted in Towle v. Ayer,
67. Sedgwick & Wait, Trial of 8 N. H. 57; Bond v. O'Gara, 177
Title to Land (2d Ed.), § 756, Mass. 139, 83 Am. St. Rep. 265,
quoted, apparently with approval, 58 N. E. 275.
by Holmes, C. J., in Bond v. 70. So in Pollock v. Wright.
O'Gara 177 Mass. 139, 83 Am. Possession, § 14, it is said that
St. Rep. 265, 58 N. E. 275. See "to constitute a dispossession
also, to the same effect. Fear there must in every case be
V. Barwise, 93 Kan. 131, 143 Par. positive acts which can be rc-
505; Rupley v. Eraser. 132 ^linn. ferred only to the intention of
311, 156 N. W. 350; Morrison acquiring exclusive control." And
V. Linn, 50 Mont. 396, 147 Pac. as to the necessity of the ele-
166 (construing statute). ment of intention in posses-slon
68. Ante, § 14. see Lightwood, Possession of
69. Co. Lift. 15.3b, quoting Land, p. 21; Holmes, The Com-
the statement of Bracton quae- mon Law, 206 et scq.; Salmond,
rendum est a judice, quo anirno Jurisprudence, § 97.
1940
Real Property.
[§ 504
possession, there must be an intention to claim title. "^
That is, there must be an intention to assert dominion
over the property to the exclusion of others. But the
requirement of an intention to exercise exclusive con-
trol over the property, involved in the asserted necessity
of "an intention to claim title," in order that the right-
ful owner may be regarded as dispossessed, is to be dis-
tinguished from the asserted requirement of a "claim
of title," in order to make the statute of limitations
elTective as against the dispossessed owner.
As tending to negative any requirement of claim of
risht or title as necessary to put the statute of limita-
tions in motion, reference may be made to the general
acceptance of the view that, in the absence of an ex-
press statutory requirement to that effect, the statute
will run regardless of whether the wrongful possession
was taken under a bona fide claim of right. '^- There
71. Brown v. Cockerall, 33 Ala.
38; Wilson v. Hunter, 59 Ark.
626, 43 Am. St. Rep. 63, 28
S. W. 419; Watrous v. Morrison,
33 Pla. 261, 39 Am. St. Rep. 139,
14 So. 805; Riley v. Griffin, 16
Ga. 141; Winn v. Abeles 35
Kan. 85, 57 Am. Rep. 138, 10
Pac. 443; Worcester v. Lord, 56
Me. 265, 96 Am. Dec. 456; Ford
V. Wilson, 35 Miss. 490, 72 Am.
Del. 137; Pharis v. Jones, 122
Mo. 125, 26 S. W. 1032; Simmons
V. Nahant 3 Alien (Mass.) 316;
Haney v. Breeden, 100 Va. 781,
42 S. E. 916.
72. Newsome v. Snow, 91 Ala.
641, 24 Am. St. Rep. 934, 8 So.
377; Unger v. Mooney, 63 Cal.
586, 49 Am. Rep. 100; Montgom-
ery & Mullen Lumber Co. v.
Quimby, 164 Cal. 250, 128 Pac.
402; French v. Pearce, 8 Conn.
443, 21 Am. Dec. 480; May v.
Dobbins, 166 Ind. 331, 77 N. E.
353; Rutter v. Small, 68 Md. 133,
6 Am. St. Rep. 434, 11 Atl. 698;
Warren v. Bowdran, 156 Mass.
280, • 31 N. E. 300; Dawson v.
Falls City Boat Club, 136 Mich.
259 112 Am. St. Rep. 363, 99 N.
W. 17; Wilkerson v. Eilers, 114
Mo. 245, 21 S. W. 514; Omaha
& F. Land & Trust Co. v. Han-
sen, 32 Neb. 449, 49 N. W. 456;
Foulke V. Bond, 41 N. J. L. 527;
Humbert v. Trinity Church 24
Wend. (N. Y.) 587; Morrison v.
Holliday, 27 Ore. 175, 39 Pac.
1100; Reeves v. Dougherty, 7
Yerg. (Tenn.) 222, 27 Am. Dec.
496; Kinney v. Vinson, 32 Tex.
135; Lampman v. Van Alstyne,
94 Wis. 417, 69 N. W. 171; Ovig
V. Morrison 142 Wis. 243, 125
N. W. 449.
In Iowa good faith is neces-
sary; Litchfield v. Sewel, 97
Iowa, 247, 66 N. W. 104; Clark
V. Sexton, 122 Iowa, 310, 98 N.
§ 5011
Adverse Possessiox.
1941
would seem to bo a certain inconsistency between such
a view and the view that the statute will not run unless
the wrongful possessor, after obtaining possession, as-
serts a claim of right. '^ To re(iuire one, in order to
enjoy the benefit of the statute, to assert a claim of
right, even though he knows it to be false, involves the
placing of a premium upon dishonesty, in contravention
of the ordinary judicial policy.'^
Evidence. Conceding the necessity of a show-
ing by the person in possession of a claim of right or
title on his part, such claim may no doubt be shown by
evidence, of declarations by the possessor,'"' but ordi-
narily, it appears, it is to be inferred from the fact that
the possessor's entry was under color of title,'^" or from
the doing of acts by the possessor during his posses-
W. 127; Goulding v. Shonquist,
159 Iowa, 647, 141 N. W. 24.
And such seems to be the view
of the court in Jaspersoh v.
Scharnikow, 150 Fed. 571; Skan-
ski V. Novak, 84 Wash. 39, 146
Pac. 160.
73. "The expressions claim of
title, or right, or ownership are,
in connection with a naked ad-
verse possession, inaccurate, for
they imply a belief in the valid-
ity of the claim, or good faith
on the part of the claimant."
Sedgwick & Wait, Trial of Title
to Land, § 756. But it has been
said in a recent New York case
that claim of right, though neces-
sary, need not be bona fide; Ram-
apo Mfg. Co. V. Mapes, 216 N.
Y. 362, 110 N. E. 772.
74. In Iowa it has been said
that one's knowledge of a de-
fect in his title is not incom-
patible with good faith on his
part. Hughes v. Wyati, 146 Iowa,
392, 125 N. W. .'U; Collins v.
Reimers, 181 Iowa, 1143, 165 N.
W. 373.
75. Henry v. Brown. 143 Ala.
446, 39 So. 325. And see the
following cases, in which asser-
tions of title by the wrongful
possessor were admitted to show
the adverse character of the
possession. Stockton Sav. Bank
V. Staples, 98 Cal. 189; St.
Peters Church \. Beach, 26 Conn.
355; Burr v. Smith, 152 Ind. 469,
53 N. E. 4; Cottle v. Howerton,
18 Ky. L. Rep. 121, .15 S. W. 552;
Jacobs v. Callaghan, 57 Mich. 11,
23 N. W. 454; Brown v. Kohoul,
61 Minn. 113, 63 N. W. 248;
Westenfelder v. Creen, 24 Ore.
448, 34 Pac. i23; Texas & N. O.
R. Co. V. Broom, 5:^ Tex. Civ.
App. 78. 114 S. W. 655.
76. Goodson v. Brotliers. Ill
Ala. 589, 20 So. 453; Shlpwith
V. Martin, 50 Ark. 141, 6 S. W.
514; Wiggins v. Brewster, 1:11
Ga. 162. 62 S. E. 40; HadJock
V. Leary 148 N. C 37S. 62 S.
194:
Eeal Property.
[§ 504
sioii such as ordinarily only an owner would do,"'^ such
as the making of improvements,^^ or the payment of
taxesJ'' In other words the claim of title is to be estab-
lished by evidence of the same character as is ordinarily
relied on to establish the hostile or adverse character
of the possession,^*^ a consideration which harmonizes
with the view above suggested, that in asserting the
necessity of a claim of title, the courts ordinarily in-
tend merely to restate the requirement of hostility or
adverseness of possession.
Recognition of title in third person. Apart
from the fact that, as involving an affirmative fact, it is
calculated to place upon the person in possession the
burden of proof, and from the consideration that the
presentation of this additional issue is calculated to con-
fuse the jury, it does not seem that the assertion of the
E. 426; Power v. Kitching, 10 N.
D. 254, 88 Am. St. Rep. 691, 86
N. W. 737.
77. Kidd V. Browne, — Ala. — ,
76 So. 65; Lyons v. Stroud, 257
111. 350, 100 N. E. 973; Rennert
V. Shirk, 163 Ind. 542, 72 N. E.
546; Craven v. Craven, 181 Ind.'
553, 103 N. E. 333; Woodcock v.
Crosby's Unknown Heirs, 92 Neb.
723, 139 N. W. 646; Smith v.
Badura, 70 Ore. 58, 139 Pac. 107.
In New York the statute re-
quires possession under claim of
title, but it is said that the ac-
tual possession and improvement
of the premises, as owners are
accustomed to possess and Im-
prove their estates, without any
payment of rent or recognition
of title in another will, unless
rebutted by other evidence, estab-
lish the fact of a claim of title.
Barnes v. Light, 116 N. Y. 34,
22 N. E. 441; Monnot v. Murphy,
207 N. Y. 240, 100 N. E. 742.
78. Normant v. Eureka Co.,
98 Ala. 181, 39 Am. St. Rep. 45,
12 So. 454; Lick v. Diaz, 44
Cal. 479; Grim v. Murphy, 110
111. 271; Illinois Cent. R. Co. v.
Houghton, 126 111. 233, 1 L. R.
A. 213, 9 Am. St. Rep. 581; Ren-
neot V. Shirk, 163 Ind. 542, 72
N. E. 546; Dean v. Goddard, 55
Minn. 290, 56 N. W. 1060; Barnes
V. Light, 116 N. Y. 34; Rowland v.
Williams, 23 Ore. 515. 32 Par.
402; La Frambois v. Jackson, 8
Cow. (N. Y.) 603.
79. Prick v. Sinon, 75 Cal. 337,
7 Am. St. Rep. 177. 17 Pac. 439;
Beecher v. Ferris, 117 Mich. 108,
75 N. W. 294; Murphy v. Doyle,
37 Minn. 113, 33 N. W. 220;
Allen V. Mansfield, 108 Mo. 343,
18 S. W. 901; Dredla v. Patz,
78 Neb. 506, 111 N. W. 136;
Thompson v. Burhans, 79 N. Y.
93; Paine v. Hutchins, 49 Vt.
314.
80. Ayite, § 503, notes 49-52.
§ 504] Adverse. Possession. 1943
requii'ement of claim of title rather than mere adverse-
ness or hostility of possession will, in the ordinary case,
affect the result. That is, if the jury can find that the
possession is adverse, it mil probably, from a consid-
eration of the same evidence, find that it is under claim
of title. In one case, however, the assertion of this re-
quirement might become of primary importance, that
is, when the wrongful possession was taken under the
mistaken impression that the title is in a third person,
and with full recognition of the supposed rights of such
person. If possession adverse to the whole world ^^ is
necessary to make the statutory bar effective as against
the true owner, the possession in the case supposed is
insufficient, although it be clearly adverse to the right-
ful owner. What is in substance this state of facts has
been presented in a number of cases in which one took
and held possession of vacant lands belonging to an-
other, under the impression that it belonged to the
government. In the majority of these cases it has been
decided that the statute of limitations runs under such
circumstances,^- while in others the contrary view has
been adopted, on the ground that there is no claim of
title by the person in possession, or, as otherwise ex-
pressed, his possession is not adverse to the whole
world.^'^ If claim of title is necessary to enable the stat-
81. Ante, § 503, note 47. Civ. App. 60, 77 S. W. 41G; True-
82. Page v. Fowler, 28 Cal. heart v. Graham, — Tex. Civ.
611; Hayes v. Martin, 45 Cal. App. — , 141 S. W. 281; Francoeur
559; Blumer v. Ohio Land Co., v. Newhouse, 43 Fed. 236; North-
129 Iowa, 32, 105 N. W. 342; ern Pac. R. Co. v. Kranich, r^2
Rathbone v. Boyd, 30 Kan. 485, Fed. 911. See editorial notes,
2 Pac. 664; Maas v. Burdetzke, 9 Columbia Law Rev. 640; 12 Id.
93 Minn. 295, 106 Am. St. Rep. 364; 10 Mich. Law Uev. 406.
436, 101 N. W. 182; Boe v. Arn- 83. Hunnewell v. Burchelt.
old, 54 Ore. 52, 20 Ann. Cas. 152 Mo. 611. 54 S. W. 487; Alt-
533, 102 Pac. 290; Sharpe v. .schul v. O'Neill, 35 Ore. 202. 58
Catron, 67 Ore. 368, 136 Pac. 20; Pac. 95; Schleicher v. Gatlin.
Smith V. Jones, 103 Tex. 632, 85 Tex. 270, 20 S. W. 120; Mc-
31 L. R. A. (N. S.) 150, 132 S. Naught-Collins Imp. Co. v. May,
W. 469; Price v. Eardley, 34 Tex. 52 Wash. 632, 101 Pac, 237;
1944 Real Property. [§ 504
ute to run, it is difficult to see how it can run when the
])ossessor admits the title to be in the government, even
though such admission is based on a mistake. The stat-
ute does run in such case, it is submitted, for the reason
that the possession is adverse to the rightful owner, and
the latter is not excused from asserting his rights within
the limitation period by the fact that the adverse pos-
session is accompanied by an assertion of title in a third
person. That such a view is incompatible with the as-
serted requirement of claim of title by the possessor
would seem to be merely an additional reason for ques-
tioning w^hether claim of title is properly necessary in
order that the statute may run.
The necessity that the possession be under claim
of title has been referred to as ground for holding that
the possession of a "mere squatter" is insufficient to
give title under the statute of limitations.-^ The ex-
pression "squatter" is somewhat lacking in certainty,
but it ordinarily means one who, while in possession of
another's land, admits that the title is in another per-
son, even though without knowledge of such person's
identity. There is in such case no claim of title by the
person in possession, but even apart from that con-
sideration, the possession would seem, by reason of the
Skanski v. Novak, 84 Wash. 39, session acknowledged that he had
146 Pac. 160. See editorial no title to the land was held
notes 5 Columbia Law Rev. 605; not to prevent the running of
18 Harv. Law Rev. 180. the statute in his favor, he hav-
84. Gay v. Mitchell, 35 Ga. 139, ing "entered to hold the land as
89 Am. Dec. 278; Bell v. Fry, long as he could."
5 Dana (Ky.) 341; Blake v
Shiver, 27 Wash. 593, 68 Pac
330; Jasperson v. Scharnikow
150 Fed. 571; Parkersburg In
dustrial Co. v. Schultz, 43 W. Va
470, 27 S. E. 255. See Baber v
Henderson, 156 Mo. 566, 79 Am
in Patterson v. Reigler, 4 Pa
St. 201, that the person in pos-
In Northern Pacific Ry. Co. v.
Concannon, 75 Wash. 591, 135
Pac. 652, the fact that the one
in possession made valuable im-
provements on the land was re-
garded as showing that he was
something more than a mere
St. Rep. 540, 57 S. W. 719. But squatter, for the purpose of the
statute of limitations.
§ 504] Advf.ese Possf.sstox. 1945
recognition of another's title, to he deprived of the ele-
ment of hostility or adverseness, concedino;, that is, that
an acknowledgment of another's title will operate to
deprive possession of the element of adverseness, al-
though such acknowledgment is not made directly to
such other.'"''
Claim of easement. The statement occasionally
made that possession under a claim to a mere ease-
ment does not, although continued for the statutory
period, confer title to the fee,*^" involves the miscon-
ception that one merely exercising, or undertaking to
exercise, "an easement in land, has i)Ossession, or may
have possession, of the land. He does not acquire title
to the land by adverse possession, for the reason that
he never had possession, adverse or nonadverse.'^'
Claim of fee simple. Ap])lying and extending
the asserted requirement of claim of title, it has occa-
sionally been said that the statute runs in favor of the
person in possession only if he claims title in fee.-""* In
so far as this may mean that the statute does not run
against the rightful owner, if the possessor recognizes
85. Post, § 507, note 38. Atl. 97; BedeU v. Shaw. 59 N.
86. Dothard v. Denson, 75 Ala. Y. 46.
482; Indianapolis R. Co. v. Ross, In New York the statute, which
47 Ind. 25. See O'Banion v. asserts the necessity of claim of
Cunningham, 168 Ky. 322, Ann. title in order that the possession
Cas. 1917A, 1017, 182 S. W. 185, may be adverse, has been regard-
Roe V. Strong, 107 N. Y. 350, ed as requiring a claim of title
14 N. E. 294. ill fee, so that if the person
87. But in Long Island Rail- in possession claims merely an
way Co. y. Mulry, 212 N. Y. 108, estate for years, the statu!*; does
105 N. E. 806, it seems to be held not run in his favor. I^e-Joll v.
that a railroad company is in Shaw, 59 N. Y. 46. But a claini
possession though asserting an by a railroad company to a rlKlU
easement merely, of way merely has been regard-
88. Harden v. Watson, 104 ed a? so closely eriuivalent to a
Ark. 641, 148 S. W. 506; lona claim of title in fee as to enable
V. Uu, 16 Hawaii, 432; Laport v. the statute to run. Lour l.sland
Todd, 32 N. J. L. 131; Myers K. Co. v. Mulry. 211! N. V. lo8.
V. Folkman, 89 N. J. L. 3-90, 99 105 N. E. 80G.
1946 Real Property. [§ 505
tlie fee simple as being in such owner, there can be no
question as to the correctness of the statement. But in
so far as it may mean more than this, it would appear
to be open to question, even conceding that some claim
of title is necessary. Opposed to such a view are the
cases, hereafter referred to,^^** in which a conveyance or
devise having been made to a person for life with re-
mainder to another, entry and- possession by the former
were held to enure to the benefit of the latter, so as to
vest in him a fee simple estate. And the possession of
one holding under a lease for years, though this involves
no claim on his part to the fee simple, is sufficient as
against the rightful owner.^*^
§ 505. Mistake in locating boundary. The ques-
tion has frequently arisen whether, when an owner of
land, by mistake as to the boundary line of his land, takes
possession of another's land, and holds it for the statu-
tory period, he thereby acquires the title as against the
real owner. In some states, in such a case, the posses-
sion has been regarded as adverse, without reference to
the fact that it is based on mistake, it being sufficient
that there is an actual and visible possession without
any recognition of the other's title. ^"^ In other states
88a. Post, § 511, notes 30-33b. Velde, 138 Minn. 59, 163 N. W.
89. Ante, § 501, note 31. 796; Crowder v. Neal, 100 Miss.
90. Lucas V. Provinen, 130 730, 57 So. 1; Rude v. Marshall,
Cal. 270, 62 Pac. 509; French v. 54 Mont. 27, 166 Pac. 298; Baty
Pearce, 8 Conn. 439, 21 "Am. Dec. v. Elrod, 66 Neb. 735, 92 N. W.
680; Krause v. Nolte, 217 111. 1032, 97 N. W. 343; Zweimer v.
298, 3 Ann. Cas. 1061, 75 N. E. Vest, 96 Neb. 399, 147 N. W.
362 (semble); Daily v. Boudreau, 1129; Crary v. Goodman, 22 N.
231 111. 228, 83 N. E. 218 (sem- Y. 170; Yetzer v. Thoman, 17i
ble); Rennert v. Shirk, 163 Ind. Ohio St. 130, 91 Am. Dec. 122;
542, 72 N. E. 546; Dowell v. Dil- Parker v. Wolf, 69 Ore. 446, 138
Ion, 178 Ky. 531, 199 S. W. 6; Pac. 463; Miles v. Pennsylvania
Jordon v. Riley, 178 Mass. 524, Coal Co., 245 Pa. 94, 91 All. 211;
60 N. E. 7; Greene v. Angle- Erck v. Church, 87 Tenn. 575, 4
mire, 77 Mich. 168, 43 N. W. L. R. A. 641, 11 S. W. 794; Wil-
772; Weeks v. Upton, 99 Minn. liams v. Hewitt, 128 Tenn. 689,
410, 109 N. W. 828; Stevens v. 164 S. W. 1198; Burnell v. Ma-
'^ 505] Adverse Possessiox. 1947
the fact that, in such case, the possession of the other's
land is under mistake, has been regarded as frequently
material, and a distinction is asserted to the effect that,
if such possession up to the boundary as located is with
the intention of claiming title to that extent, even though
the boundary be incorrect, the possession is adverse,
while, if it is with the intention of claiming title to that
extent only if the boundary is correct, the possession is
not adverse.-'^ The decisions of a particular court in
this regard are not infrequently lacking in entire con-
sistency, one with another, and occasionally the judicial
discussion of the subject is such as to leave us somewhat
in the dark as to the exact position of the court on the
question.
Though the courts which assert the possible mate-
riality of mistake as to the boundary line, ordinarily state
that w^hether an intention to claim title to the boundary
as located in spite of any mistake therein is the im-
portant consideration, they fail to tell us what they
mean by such an intention, and in the actual discussion
loney, 39 Vt. 579, 94 Am. Dec. 106, 165 S. W. 684; Preble v.
358; Wissinger v. Reed, 69 Wash. Maine Cent. R. Co., 85 Me. 260,
684, 125 Pac. 1030; Mielke v. 21 L. R. A. 829. 35 Am. St. Rep.'
Dodge, 135 Wis. 388, 115 N. W. 366, 27 Atl. 149; Borneman v.
1099; Ovig v. Morrison, 142 Wis. Milliken, 116 Me. 76, 100 Atl.
243, 125 N. W. 449. See editorial 5; Mulligan v. Fritts. 226 Mo.
notes 9 Harv. Law Rev. at pp. 189, 125 S. W. 1101; Vanderbilt
289, 467; 10 Columbia Law Rev. v. Chapman, 175 N. C. 11. !H
at p. 665; 11 Mich. Law Rev. 57. S. E. 70;j; Dunnigan v. Wood,
91. Smith V. Bachus, 195 Ala. 58 Ore. 119, 112 Pac. 531; Chance
8, 70 So. 261; Couch v. Adams, v. Branch, 58 Tex. 490; Davis
111 Ark. 604, 164 S. W. 728: v. Owen, 107 Va. 283, 13 L. R.
Bossom v. Gillman, 70 Fla. 310, A. (N. S.) 728, 58 S. E. 581;
70 So. 364; Grube v. W^ells, 34 Christian v. Bulbeck, 120 Va. 74.
Iowa, 148; Keller v. Harrison, 90 S. E. 661; Shanski v. Novak.
151 Iowa, 320, Ann. Cas. 1913A, 84 Wash. 39, 146 Pac. 160; Mc-
30, 128 N. W. 851, 131 N. W. Cormick v. Sorenson, 58 Wash.
53; Edwards v. Fleming, 83 Kan. 107, 137 Am. St. Rop. 1047. 107
653, 33 L. R. A. (N. S.) 923. Pac. 1055; Snell v. Steiling, 83
112 Pac. 836; Turner v. Morgan, Wash. 248, 145 Pac. 466.
158 Ky. 511, 52 L. R. A. (N. S.)
]948 Eeal Peoperty. [§ 505
of the particular case they not infrequently shift the in-
quiry from one as to the existence of an intention to
claim title in the contingency of mistake to one as to
whether a claim of title was actually made or indicated
during the period of possession. An intention to claim
title in spite of a mistake in the location of the bound-
ary might mean an intention to retain possession until
legally ejected, even though convinced of the mistake, or
it might mean merely an intention to assert a right to
the possession although relinquishing possession by rea-
son of proof of mistake. Probably what the courts have
in view in asserting this distinction is that the posses-
sion is not adverse as regards land erroneously in-
cluded in one's possession by reason of a mistake in
the boundary line, provided he concedes that if there is
any such land he has a mere permissive possession, that
he holds possession, in other words, in subordination
to any right therein on the part of the adjoining owner,
while his possession is adverse if he does not concede
the possibility of mistake, and thus fails to recognize any
possibility of right in the other. So regarded, it may
be questioned whether the position of the courts as-
serting the possible materiality of mistake in this re-
gard is so entirely out of harmony with that of the
courts which assert its immateriality as is frequently
assumed. Even the latter courts would hardly regard
one's possession of land enclosed by mistake as ad-
verse, if the possessor explicitly acknowledges to the
rightful owner that any such land is held by him in
subordination to any right in the latter and their as-
sertion of the immateriality of mistake in this regard
appears to mean no more than that the fact of mistake
is not a basis for inferring such an acknowledgment on
the part of the possessor that he holds in subordination
to any possible rights in the true owner. But this ap-
l)ears to involve the same position as that held by the
courts which assert the possible materiality of the mis-
§ 505]
Adverse Possession.
1949
take, in so far as they recognize"- a presuniiition of in-
tention to claim title regardless of the mistake, that is,
a presumption that, in spite of the mistake, the posses-
sion is adverse. Adopting this view, it is only in so far
as the courts, which assert the possible materiality of
the mistake, recognize a contrary presumption,"^ of an
intention on the part of the wrongful possessor not to
claim title if he is mistaken as to the boundary, tliat
the assertion of the materiality of mistake as to bound-
ary becomes of substantial importance. That the pre-
sumption is properly in favor of the adverse or hostile
character of the possession rather than against it has
been previously argued,"^ but whatever presumi)tion in
this regard may be recognized, the introduction of the
element of mistake in the discussion of the question of
adverse possession is, it is submitted, unnecessary and
undesirable. In no case except in that of a mistake as
to boundary has the element of mistake been regarded
as having any significance,^^ and there is no reason foi'
92. As in Huffman v. White,
90 Ala. 354, 7 So. 816; Couch v.
Adams, 111 Ark. 604, 164 S. W.
728; Heath v. Kirkpatrick, 48
Iowa, 78; Zimmerman v. Ginter,
69 Kan. 331, 63 Pac. 657; Patter-
son V. Hollis, 90 Kan. 655, Ann.
Cas. 1915B, 725, 136 Pac. 258:
Turner v. Morgan, 158 Ky. 511, 52
L. R. A. (N. S.) 106, 165 S. W.
684 (semble) ; Goltermann v.
Schiermeyer, 111 Mo. 404. 19 S.
W. 484. 20 S. W. 161; Mangold
V. Phillips, — Mo.— , 186 S. W. 988:
Nichols V. Tallman, Mo., 189 S.
W. 1184; Pearson v. Dryden.
28 Or. 350, 43 Paf. 166. See
ante, § 295.
93. As in Lecroix v. Malone,
157 Ala. 434, 47 So. 725; Jahnke
V. Seydel, 178 Iowa, 363, 159 N.
W. 986; Shanline v. Wiltsie. 70
Kan. 177, 3 Ann. Cas. 140. 7S
2 R. P.— 48
Pac. 436; Davis v. Alexander,
—Mo.—, 183 S. W. 563; Ware v.
Cheek, Mo., 201 S. W. 847; Chris-
tian V. Bulbeck, 120 Va. 74. 90 S.
E. 661. See Hornsby v. Tucker.
180 Ala. 418. 61 So. 928.
94. Ante. § 503, note 54.
95. "If possession through mis-
take were held not to be adverse,
very little room would be left for
the statute of limitation, for al
most every man who buys land
under a bad title labors under
the mistaken idea that his dee^l
is good and effectual." 2 Deni-
bitz. Land Titles, 1397. "Adopt
the rule that an entry and pos-
session under a claim of right,
if through misiakf. does not con-
stitute an adverse possession.
* ♦ * the in(|uiry no longer
is whether visible possession,
with the intent to posseess, under
1950 Eeal Pbopebty. [§ 506
attributing greater weight thereto when the mistake is
as to the proper location of a boundary than when it
is a mistake as to the title to all the land wrongfully
possessed. And to introduce the element of mistake,
and then limit its significance by an inquiry as to the
intention which the possessor may have as to his course
of action in case there should be a mistake, an intention
which has ordinarily no existence whatsoever, is cal-
culated only to cause confusion in the minds of the jury,
without, it is conceived, any compensating advantage.
In case a temporary boundary line is located by
agreement between the adjoining owners, with the un-
derstanding that they shall occupy with reference there-
to until the proper Hue is ascertained, the possession of
one beyond the proper line, in accordance with such
temporary location, has been regarded as not adverse
to the other.'^" His possession in such case is in effect
permissive, and involves a recognition of the other's
title to the extent of that title.
§ 506. Necessity of right of action. The purpose
of the statutes of limitation is to debar one of his right
to assert his claim when, having the powder to assert
such claim, he has failed to do so for the period named.
Consequently the statutes do not commence to run as
against a particular person until a right of entry or
action accrues to him. So, as against one who has a
remainder upon an estate for life, the statute does not
a claim of right, and to use and v. Moreland, 26 Iowa, 96; Mur-
enjoy as one's own, is a disseisin, phy v. Comm., 187 Mass. 361, 73
but from this plain and easy N. E. 524; Bunce v. Bidwell, 43
standard of iproof we are to de- Mich. 542, 5 N. W. 1023; Majors
part, and the invisible motives v. Rice, 57 Mo. 384; Jackson v.
of the mind are to be explored." Vermilyea, 6 Cow. 677; Bryson
French v. Pearce, 8 Conn. 439, v. Slagle, 44 N. C. 449; Massen-
per Hosmer, C. J. gill v. Boyles, 11 Humph. (Tenn.)
96. Smith v. Keyser, 115 Ala. 112; Texas Land Co. v. Williams,
455, 22 So. 149; Peters v. Gracia, 51 Tex. 51; BurneU v. Maloney,
110 Cal. 89, 42 Pac. 455; Hassett 39 Vt. 579, 94 Am. Dec. 358.
V. Ridgely, 49 111. 197; McNamee
§ 506] Adverse Possession. 1951
ordinarily begin to run in favor of a third person, who
takes wrongful possession during the life tenancy, until
the termination of the estate for life,*^^ and, presumably,
as against one who has a reversion upon an estate
for years, the statute does not begin to run, in favor of
one who takes possession during the existence of the
estate for years, until the termination of such estate.^**
Nor, it seems, does the fact that the reversioner or re-
mainderman has a right of entry for a forfeiture be-
fore the normal expiration of the particular estate
cause the statute to run as against him before such ex-
piration.^'' In one or two states, however, the fact that
the remainderman is by statute enabled to maintain a
suit to quiet title even before the death of the life tenant
is regarded as causing the statute to run as against him
in favor of a wrongful possessor, immediately upon his
acquisition of knowledge of such wrongful possession.^
If the i^articular estate for life or for years is vol-
untarily created after the statute has begun to run, it
97. Angell, Limitations, § 371, Childers v. Bumgarner, 53 N. C.
et seq.; Rosenau v. Childress, 297; Davis v. Dickson, 92 Pa. St.
Ill Ala. 214, 20 So. 95; Ogden 365; Moseley v. Hankinson, 25 S.
V. Ogden, 60 Ark. 70, 46 Am. St. C. 519; Carver v. Maxwell, 110
Rep. 151, 28 S. W. 796; Ander- Tenn. 75, 71 S. W. 752; Mansfield
son V. Northrop, 30 Fla. 612, 12 v. Neff, 43 Utah, 258, 134 Pac.
So. 318; Bagley v. Kennedy, 81 1160.
Ga. 721, 8 S. E. 742; Orthwein 98. Potrero Nuevo Land Co.
v. Thomas, 127 111. 554, 11 Am. v. All Persons, 29 Cal. App. 743.
St. Rep. 159, 4 L. R. A. 434, 13 156 Pac. 876; Orrell v. Madox.
N. E. 564, 21 N. E. 430; Mettler :J Cruise, Dig. tit. 31, ch. 2, §
V. Miller, 129 lU. 630, 22 N. E. 30. That the statute begins to
529; Williams v. McClanahaa, 3 run immediately on expiration of
Mete. (Ky.) 420; Pratt v. Church- the lease, though it is renewed,
ill, 42 Me. 471; Wallingford v. see Gartlan v. C. H. Hooper &
Hearl, 15 Mass. 471; Lindley v. Co., —Cal.—, 170 Pac. 1115.
Groff, 37 Minn. 338, 34 N. W. 26; 99. Doe v. Danvers. 7 East
Watkins v. Green, 101 Mich. 493, 299; Gwynn v. .Tones, 2 Gill. &
60 N. W. 44; Reed v. Lowe, 163 J. (Md.) 173.
Mo. 519, 85 Am. St. Rep. 578, 63 1. Marray v. Quigley. 11««
S. W. 687; Pinckney v. Burrage. Iowa. 6. 97 Am. St. Uep. 276. 92
31 N. J. L. 21; Jackson v. .John- N. W. 869; Crl.swell v. ^risweli.
son, 5 Cow. 74, 15 Am. Dec. 433; 101 Neb. 349, 163 N. W. 303.
1952 Eeal Property. [§ 506
will continue to run, as against the reversioner or re-
mainderman as well as against the particular tenant.-
That is, an owner in fee against whom the statute has
commenced to run cannot interrupt its running by creat-
ing a particular estate, either with or wdthoat a re-
mainder thereon.
Applying the principle that the statute does not
run against one who has no right of entry or action, it
has been decided that if, after the adverse possession
has begun, the rightful owner, a married woman, dies,
and her husband has then an estate for life, the statute
does not run as against the woman's heirs during the
existence of the life estate.-^
In states in which an estate in fee tail is still recog-
nized, since the reversioner or remainderman on the
estate in fee tail has no right of entry or action until
the failure of the designated heirs of the body, the stat-
ute of limitations cannot, in theory, run as against him
until then. The English statute of limitations now in
force provides in effect that after the statute shall have
run as against the tenant in tail, it shall be regarded as
having also run against alb persons whom he might have
barred by conveyance or otherwise, but before this stat-
ute was passed, it was recognized that ''while posses-
sion adverse to a tenant in tail told against the issue in
tail, who claimed in right of the same estate,^ such pos-
session, though protracted for centuries, went for no-
2. Hubbard v. Swofford Bros. 616, 62 L. R. A. 562, 44 S. E.
Dry Goods Co., 209 Mo. 495, 123 508. A contrary view is asserted
Am. St. Rep. 488 ,108 S. W. 15; in Beattie v. Stewart, 154 111.
Sutton V. Clark, 59 S. C. 440, 82 273, 40 N. E. 340. See also
Am. St. Rep. 848, 38 S. E. 150; Henry v. Carson, 59 Pa. St. 207.
Stackpoole v. Stackpoole, 4 Dr. 4. That it bars such issue
& War. at p. 347; 1 Hayes, Con- see Tolson v. Kaye, 3 Brod. &
veyancing, 257. Bing. 217; Croxall v. Shererd, 5
3. Jackson v. Johnson, 5 Cowen Wall. (U. S.) 268, 18 L. Ed. 572;
(N. Y.) 74, 15 Am. Dec. 434, Inman v. Barnes, 2 GaU. 315, 13
followed in Jackson v. Mancius, Fed. Cas. No. 7048; Martindale
2 Wend. (N. Y.) 369; McNeely v. Troup, 3 Harr. & McH. 244;
V. South Penn. Oil, 52 W. Va. Wickes v. Wickes, 98 Md. 307,
§ 506] Adverse Possession. 1953
thing as against the remainderman or reversioner, who
had a substantive right, which did not accrue until fail-
ure of the issue in tail."^ The matter is of little practical
importance in this country, by reason not only of the
small number of states in which estates in fee tail are
recognized, and the rarity of their occurrence even in
such states, but also of the fact that the reversioner or
remainderman would ordinarily be bjirred by a convey-
ance by the first tenant in tail.
In so far as the government may be by statute lia-
ble to suit,''' or as the rightful owner can, by legal pro-
ceedings against the agents of the government, assei-t
his right of pos.session,'^ the statutory bar may run in
favor of the government, while, it would seem, it cannot
run in absence of such a right of action in his favor.
Therie are several cases in which the right of the state
to acquire title under the statute of limitations is rec-
ognized, without any reference being made to the ques-
tion of the ability of the rightful possessor to enforce
his claim,^ and these must, it seems, ordinarily be up-
held on the theory that there was a right of action
against the agents of the state in possession.
Bar of cestui que trust. There is one case in
which a person may be barred by the adverse jiosses-
sion of another although he has no riglit of action or
56 Atl. 1017; Baldridge v. Mc- 454. See editorial note 17 Harv.
Farland, 26 Pa. 338 (semble); Law Rev. 55.
Dow V. Warren, 6 Mass. 328. 7. Stanley v. Schwalby. 147 V.
5. 1 Hayes, Conveyancing (5th S. 508, 37 L. Ed. 2ri9; E]! Paso
Ed.), 258. See Angell, Limita- v. Ft. Dearborn Nat. Bank. 96
lions, § 361, quoting 3 Cruise's Tex. 496, 74 S. W. 21.
Dig. tit. 31, ch. 2, § 13. The 8. Atty. Gen. v. Ellis. 198
case of Bassett v. Hawk, 118 Pa. Mass. 91, 15 L. R. A. (N. S.)
94, 11 Atl. 802, to the effect 1120, 84 N. E. 430; Eldridge v.
that the reversioner or remain- Binghamptou, 120 N. Y. 309, 24
derman is barred, is based on the N. E. 262; Birdsell v. ("ary, 66
express provision of the act of How. Pr. 358; Parker v. Soiith-
1859. wirk, 6 Watts (Pa.) 377.
6. Baxter v. State, 10 Wis.
1954 Keal Peoperty. [§ 506
entry, that of a cestui que trust. If the possession is
adverse to the trustee, so as to bar his right to recover
possession after the statutory period, the cestui que trust
is also barred.'' This rule, that the cestui que trust must
suffer for the negligence of the trustee in failing to sue,
has been in terms based on the consideration that were
the rule otherwise, the cestui, having no right of action,
would never be barred by the statute. ^^ In further
justification of the rule reference has been made to the
theory^^ that the cestui que trust has, properly speaking,
merely a right in personam against the trustee and not
an actual estate in the land, and that as he is not liable
personally, as is a legal owner, upon an obligation at-
taching to the land, such as that on a covenant running
therewith, so he is not entitled to protection as is a
legal owner.^2
The bar of the statute being based on the existence
of a right of action in favor of the trustee, the fact that
the cestui que trust is under disability, such as infancy
9. Elmendorf v. Taylor, 10 of the trust did not accept or
Wheat. 152, 6 L. Ed. 360; Cruse qualify, and hence there was no
V. Kidd, 195 Ala. 22, 70 So. 166; person to bring suit. The deci-
East Rome Town Co. v. Cothran, sion has been criticized on the
81 Ga. 359, 8 S. E. 737; Hall v. theory that the heir or personal
Waterman, 220 111. 569, 77 N. representative of the creator of
E. 142, 4 L. R. A. (N. S.) 776; the trust held the legal title and
Barclay v. Goodloe, 83 Ky. 493; could have brought suit on be-
Stoll V. Smith, 129 Md. 164, 98 half of the cestui. See editorial
Atl. 530; Walton v. Ketchum, note, 17 Columbia Law Rev. 568.
147 Mo. 209, 48 S. W. 924; Ben- 10. See the language of Lord
nett V. Garlock, 79 N. Y. 302, 35 Hardwicke in Llewellyn v. Mack-
Am. Rep. 517; Cameron v. Hicks, worth, 2 Eq. Cas. Abr. 579, Barn.
141 N. Car. 21, 7 L. R. A. (N. S.) 445, quoted 2 Perry, Trusts, §
407, 53 S. E. 728; Williams v. 858.
Otey, 8 Humph. (Tenn.) 563, 47 11. Ante, § 103(b).
Am. Dec. 632; Collins v. McCarty, 12. "If a man wants complete
68 Tex. 150, 2 Am. St. Rep. 475, legal protection, let him acquire
3 S. W. 730. In Ayer v. Chap- a true proprietary right, with
man, 145 Ga. 608, 91 S. E. 548, its incident liabilities, for him-
it was held that the statute did self." T. Cyprian Williams, Esq.
not run against the cestui when in 51 Solictor's Journal, at p.
the trustee named in ihe creation 156.
§ 507] Adverse Possession. 1955
or coverture, is immaterial,^^ as is the fact that the
cestui que trust has an equitable estate in remainder
only, the legal title in fee being in the trustee.^*
§ 507. Interruption of running of statute. It not
infrequently occurs that, after the statute of limitations
has begun to run against the right to recover land, and
before it has run for the period named therein, it, for
some reason, ceases to run. Since it runs by reason of
the failure to assert one's right to the land as against
one in possession thereof whose possession is adverse
to the rightful owner, one would expect it to cease to
run either upon the owner's assertion of the riglit to
the land, upon the cessation of the possession, or upon
the cessation of the hostile character of the possession.
We will consider, in the above order, the operation in
this regard of these various classes of circumstances.
By entry or action. One whose land is in tlie
wrongful possession of another may assert his right to
the land either by entry or by action. It is well recog-
nized that the running of the statute is interrupted })y
the owner's entry on the land, if, and only if, this is
made openly and under claim of right, with a clearly
13. Molton V. Henderson, 62 Rabon. 142 Ga. 1B3, 82 S. E.
Ala. 426; Patchett v. Pac. Coast 544; Waterman v. Waterman
Ry., 100 Cal. 505, 35 Pac. 73; Hall, 220 111. 569; Edwards v.
Salter v. Salter, 80 Ga. 178, 12 Woolfolk, 17 B. Mon. (Ky.) 376;
Am. St. Rep. 249, 4 S. E. 391; Ewing v. Shanahan, 113 Mo. 18S,
Barclay v. Goodloe, 83 Ky. 493; 20 S. W. 1065; King v. Rhew.
Crook V. Glenn, 30 Md. 71; Ewing 108 N. C. 696, 23 Am. St. Rop.
V. Shanahan, 113 Mo. 188, 20 S. 76, 13 S. E. 174; Watkins v.
W. 1065; Thompson v. Carrai- Specht, 7 Cold. (Tenn.) 585.
chael, 122 Pa. St. 478, 15 Atl. 867; Obviously, if the trustee has
Williams v. Otey, 8 Humph. only a life estate, the statute
(Tenn.) 563, 47 Am. Dec. 632; does not run against the legal
Collins V. McCarty, 68 Tex. 150, remainderman. East Rome Town
2 Am. St. Rep. 475, 3 S. W. 730. Co. v. Cothran, 81 Ga. 359, S
14. Cushman v. Coleman, 92 S. E. 737; Ewin v. Llndsey,
Ga. 772, 19 S. E. 46; McLain v. (Tenn.) 58 S. W. 388.
1956
Eeal Property.
[§ 507
indicated purpose of taking ijossession.^^^ In several
states, however, such an effect has been denied to a
forcible entry, at least when not followed by continuous
possession,^'' and in some states there is a statutory pro-
vision restricting the operation of an entry as an inter-
ruption of the adverse possession, as by requiring it to
be followed by possession for a certain time, or by an
action of ejectment, and occasionally the statute ex-
pressly deprives the entry of any such effect.^'
The bringing of an action by the true owner to re-
cover the possession, if followed both by a judgment in
his favor and the recovery of possession thereunder,
interrupts the running of the statute,^^ and such inter-
15. Doe V. Clayton, 81 Ala.
391, 2 So. 24; Burrows v. Gal-
lup, 32 Conn. 493, 87 Am. Dec.
186; Brett v. Farr, 66 Iowa, 684,
24 N. W. 275; Batchelder v. Rob-
bins, 93 Me. 579, 45 Atl. 837;
Wickes V. Wlckes, 98 Md. 307,
56 Atl. 1017; Boweu v. Guild, 130
Mass. 121; Musser-Sauntry Land,
Logging & Mfg. Co. v. T'ozer, 56
Minn. 443, 57 N. W. 1072; Camp-
bell V. Wallace. 12 N. H. 362. 37
Am. Dec. 219;^ Landon v. Town-
shend, 129 N. V. 166, 29 N. E. 71;
Altemus v. Campbell, 9 Watts
(Pa.) 28, 34 Am. Dec. 494; Evitts
V. Roth, 61 Tex. 81; Illinois Steel
Co. V. Budzisz, 115 Wis. 68, 90 N.
W. 1019.
The owner may enter by an
agent as well as in person.
Batchelder v., Robbins, 93 Me. 579,
45 Atl. 837; Johnson v. Fitz-
george,- 50 N. J. L. 470, 14 Atl.
762; Ingersoll v. Lewis, 11 Pa.
212, 51 Am. Dec. 536; Camp v.
Camp, 88 Vt. 119, 92 Atl. 12;
Illinois Steel Co. v. Budzisz, 115
Wis. 68, 90 N. W. 1019.
16. Gould V. Carr. 33 Fla. 523,
24 L. R. A. 130, 15 So. 259; Bella
V. Scholte, 24 Iowa, 283; Men-
denhall v. Price, 88 Iowa, 203,
55 N. W. 321 (semble); Fergu-
son V. Bartholomew, 67 Mo. 212;
Norvell v. Gray, 1 Swan (Tenn.)
96. Contra, San Francisco v.
Fulde, 37 Cal. 349, 99 Am. Dec.
278. In Illinois an entry has
been regarded as forcible for this
purpose if against the will of
the person in possession. Bug-
ner v. Chicago Title & Trust Co.,
280 111. 620, 117 N. E. 711.
17. See Place v. Place, l;59
Mich. 509, 102 N. W. 996; Doug-
las V. Irvine, 126 Pa. 643, 17
Atl. 802; Cobb v. Robertson, 99
Tex. 138, 122 Am. St. Rep. 609,
86 S. W. 746, 87 S. W. 1148.
. 18. Moore v. Greene, 19 How.
f!U. S.) 69. 15 L. Ed. 533; Bishop
V. Truett, 85 Ala. 376; McGrath
V. Wallace, 85 Cal. 622; Smith v.
Hornback, 4 Litt. (Ky.) 232, 14
Am. Dec. 122; Barrell v. Title
Guarantee & Trust Co., 27 Ore.
77, 39 Pac. 992; Potts v. Wright,
82 Pa. 498.
§ 507]
Adverse Possession.
lii.")'
ruption occurs, it has been decided, at the time of the
bringing of the action. ^'^ The bringing of an action,
however, which results unsuccessfully to plaintiff, does
not interrupt it.^*^ There are a number of decisions to
the effect that even though a judgment is rendered for
plaintiff in such action, the statute does not cease to run
unless there is a change of possession in accordance
with the judgment,-^ while tliere are other decisions to
the contrary. 2^
In some of the earlier cases,- • the asserted ineffec-
tiveness in this regard of a judgment, not followed by
a change of possession in accordance therewith, was
based upon the consideration that a judgment in eject-
ment decided only that the plaintiff' was entitled to pos-
session during the term named in the fictitious demise,
19. Butler v. Secrist, 92 Neb.
506, 138 N. W. 749; Barrell v.
Title Guarantee Co., 27 Ore. 77,
39 Pac. 992; Chicago & N. W.
R. Co. V. Jenkins, 103 111. 588;
Dunn V. Miller, 75 Mo. 260; Breon
V. Robrecht, 118 Cal. 469, 62 Am.
St. Rep. 247, 50 Pac. 689, 51 Pac.
33; Ball v. Lively, 1 Dana (Ky.)
60; Beard v. Ryan, 78 Ala. 37.
20. Moore v. Greene, 19 How.
(N. Y.) 71; Langford v. Poppe,
56 Cal. 73; Workman v. Guthrie,
29 Pa. St. 495, 72 Am. Dec. 654;
Snell V. Harrison, 131 Mo. 495,
52 Am. St. Rep. 642, 32 S. W.
:M; Nelson v. Triplett, 99 Va.
421, ."^g S. E. 150.
21. Bradford v. Wilson, 140
Ala. 633, 37 So. 295; Carpenter
V. Natoma, etc., Water Co., 63
Cal. 616; Gould v. Carr, 33 Fla.
523, 24 L. R. A. 130, 15 So. 259;
O'Neal V. Boone, 53 111. 35;
Forbes v. Caldwell, 39 Kan. 14, 17
Pac. 478; Smith v. Trabue, 1 Mc-
Lean (U. S.) 87.
22. Snen v. Harrison, 131 Mo.
495, 52 Am. St. Rep. 642, 32 S.
W. 37, overruling Mabary v.
Dollarhide, 98 Mo. 204, 14 Am.
St. Rep. 639, 11 S. W. 611;
Rogers v. Johnson, 259 Mo. 17.!.
168 S. W. 613; Perry v. Eagle
Coal Co., 170 Ky. 824, 186 S. W.
875, apparently overruling Mar-
tin V. Hall,. 152 Ky. 677, 153 S.
W. 997; Brolaskey v. McClain,
61 Pa. St. 166; Wade v. Mc-
Dougle, 59 W. Va. 113, 52 S. E.
1026.
A like view has been taken as
to the effect of a decree for a
conveyance (Gower v. Quinlan.
40 Mich. 572) and a decree «iiiiet-
ing title (Hintrager v. Smith, 89
Iowa. 270, 56 N. W. 456; 01)erein
V. Wells, 163 111. 101. 45 N. E.
294).
23. Kennedy v. Reynolds. 27
Ala. 364; Smith v. llornljuck. 4
Litt. 233; Jackson v. Ilavilaml.
13 Johns. 229.
1958 Real Peoperty. [§ 507
and was consequently not conclusive as to the title gen-
erally,^^ but this consideration has ceased to be effective
Avith the change in the nature of the action. And the
view that a change of possession is necessary can be
based only on the theory that, in the absence of a change
of possession, the running of the statute is not inter-
rupted unless tlie possession loses its hostile character,
and that it does not lose such character merely as a
result of the rendition of a judgment in favor of the
rightful owner. It is said on the other hand, that the
judgment does have the effect of depriving the posses-
sion of its adverse character, for the reason that it
estops the defendant therein from asserting that he
holds under claim of title.^" But conceding that a hold-
ing under claim of title is necessary to put the statute
in motion,^*' it is by no means clear that a judoment in
ejectment against the wrongful possessor should prop-
erly estop him from the assertion of such a holding. It
estops him from asserting title in subsequent litigation,
but he is at liberty, it would seem, after the rendition
of the judgment, as before, to assert in conversation or
otherwise, that he claims title to the property, and hav-
ing made such assertion, to show, in subsequent litiga-
tion, that he did so. The bringing of an action by the
true owner to assert his rights, followed by the recovery
of a judgment by him, without any actual change of pos-
session, might, it is submitted, be regarded as effective
to stop the running of the statute against him, for the
reason that in that way he has asserted, in the most
conclusive manner possible, his rights in the land. While
his failure to assert his rights by either action or entry
involves laches on his part, it does not seem that he
should be regarded as guilty of laches, and made to
suffer accordingly, because, after asserting his rights
by an action brought to a successful conclusion, he fails
24. See an excellent editorial 25. 9 Columbia Law Rev. 351.
note in 9 Columbia Law Rev. 26. Ante, § 504.
at p. 351.
§ 507] Adverse Possession. 1959
to follow tJais up by an entry on the land. He has a
right to assume, after judgment in his favor, and in the
abs(?nce of anything to show the contrary, that defend-
ant, in retaining possession, is doing so in his behalf,
that is, in accord with the adjudication.-'^
By cessation of possession. Since the statute
runs against the rightful owner only if there is an actual
possession of the land by another, it ceases to run upon
a cessation of such actual possession, an interruption of
the continuity of possession, as it is frequently termed.
If such an interruption occurs, and possession is there-
after resumed, the limitation period commences to run
only from the time of such resumption. ^^ Interruption
of continuity of possession may result from the cessa-
tion by the person in possession of his exercise of acts
of possession or ownership over the land,-^ but the mere
fact that the acts of possession are not continuous, or
that the owner does not continue in actual occupancy,
does not necessarily show an interruption of the posses-
sion, this depending on the character of the acts neces-
sary to constitute actual possession, the intention of the
possessor, and the other circumstances of the
case."" Nor is the continuity of possession interrn))tod
27. See Sanford v. Herron, 161 83 Tex. 580. 19 S. W. 136; Illinois
Mo. 176, 84 Am. St. Rep. 703, Steel Co. v. Budzisz, 115 Wis. 68,
61 S. W. 839. 90 N. W. 1019.
28. Ross V. Goodwin, 88 Ala. 29. Louisville & N. R. Co. v.
390, 6 So. 682; Brown v. Hanauer, Philyaw, 88 Ala. 264, 6 So. 837;
48 Ark. 277, 3 S. W. 27; Town- Sharp v. Johnson, 22 Ark. 79;
send V. Edwards, 25 Fla. 582. 6 Clark v. White, 120 Ga. 957, 48
So. 212; Chicago & A. R. Co. v. S. E. 357; Downing v. Mays. 153
Keegan, 185 111. 70, 56 N. E. 1088; 111. 33, 46 Am. St. Rep. 896. 3S
Steeple v. Downing. 60 Ind. 478; N. E. 620; Nixon v. Porter. 38
Logan V. Williams, 159 Ky. 412, Miss. 401; Barrell v. Title Guar-
167 S. W. 124; Armstrong v. antee & Trust Co. 2.7 Ore. 77,
Risteau's Lessee, 5 Ind. 256, 59 39 Pac. 997; Stephens v. Leach,
Am. Dec. 115; Old South Soc. 19 Pa. St 262; Fitch v Beyer,
V. Walnwright, 156 Mass. 115, 51 Tex. 336.
30 N. E. 476; Bliss v. Johnson, 30. Beasloy v. Ilowoll. 117 Ala.
94 N. Y. 235; Philipson v. Flynn, 499. 22 So. 989; Aldrirh Mining
![)()()
Real Peoperty.
[§ 507
by the entry of a third person upon the land, not effect-
ing an ouster of the person previously in possession,
such an entry constituting merely a trespass upon such
person's possession.^^
That the interruption of continuity of possession is
the result of overwhelming necessity, such as the sub-
mersion of the property ,^^ sickness,''^ or military con-
ditions,^^ appears' to be immaterial in this regard, but
when the cessation of occupation is temporary merely,
the fact that it is obviously the result of such necessity
is a consideration tending to show that the legal posses-
sion is nevertheless continuing.'^ '^
By cessation of hostility. Since the statute
runs against the true owner in favor of one in posses-
sion only when such possession is hostile or adverse, it
follows that if the possession, although otherwise con-
tinuous, ceases to be hostile or adverse, by reason of
Co. V. Pearce, 192 Ala. 195, 68
So. 900; Botsford v. Eyraud, 148
Cal. 431, 83 Pac. 1008; Downing
V. Mayes, 153 111. 330, 46 Am. St.
Rep. 896, 38 N. E. 620; Butt v.
Houser — (Ky.)— 188 S. W. 628;
McLellan v. McFadden, 114 Me.
242, 95 Atl. 1025; Ford v. Wil-
son, 35 Miss. 490; Hunter v.
Finnell, 193 Mo. 142, 91 S. W.
472; Pease v. Whitney, — N. H. — ,
98 Atl. 62; Cross v. Seaboard
Air Line R. Co., 172 N. C. 119,
90 S. E. 14; Hughs v. Pickering,
14 Pa. St. 297; Cathcart v. Mat-
thews, 105 S. C. 329, 89 S. E.
1021; Langdon v. Templeton, 66
Vt. 173, 28 Atl. 866; Chase v.
Eddy, 88 Vt 235, 92 Atl. 99.
31. Chastang v. Chastang, 141
Ala. 451, 109 Am. St. Rep. 45, 37
So. 799; Prouty v. Tilden, 164, 111.
163, 45 N. E. 445; Martin v.
Hall, 152 Ky. 077, L. R. A.
1918A, 1041, 153 S. W. 997; Batch-
elder V. Robbins, 95 Me. 59, 49
Atl. 210; Ballard v. Hansen, 33
Neb. 861, 51 N. W. 295; Clark v.
Potter, 32 Ohio St. 49; Workman
V. Guthrie, 29 Pa. 495, 62 Am.
Dec. 382; Love v. Turner, 78 S.
C. 513, 59 S. E. 529; Glover v.
Pfeuffer, —Tex. Civ.—, 163 S. W.
984; Zeller v. Martin, 157 Wis.
341, 147 N. W. 371.
32. Western v. Flanagan, 120
Mo. 61, 25 S. W. 531. S§e 2
Columbia Law Rev. 562; 16 Har-
vard Law Rev. 224.
33. Taylor v. Dunn, 108 Tex.
337, 193 S. W. 663.
34. See Holliday v. Cromwell,
37 Tex. 437.
35. See McColgan v. Langford,
6 Lea (Tenn.) 108, 116; Robin-
son V. Nordman, 75 Ark. 593, 88
S. W. 592; Thomas v. Spencer,
66 Ore. 359, 133 Pac. 822,
§ 507
Adverse Possession.
1961
the possessor's recognition of the title of the rightful
owner, the statute thereupon ceases to run.^^' The pos-
session also ceases to be hostile when the possessor ac-
quires the right of possession, by a conveyance or lease/*"
In other words, if after the statute has commenced to
run, the person in possession acquires the title to the
land, and subsequently disposes thereof, retaining pos-
session, the statutory period must be figured from the
time of such separation of the title and the possession.
There are occasional decisions or dicta to the effect that
the possessor's recognition of the title of the rightful
owner is effective for the purpose of negativing the ele-
ment of hostility although it is communicated, not to the
rightful owner himself, but to some third person or
persons,"^ but the soundness of such a view is, it is sub-
mitted, open to question. One who takes possession of
another's land without permission from the owner is
guilty of a tort regardless of the fact that he concedes
36. Russell v. Erwin, 38 Ala.
44; Trufant v. White, 99 Ala.
526, 13 So. 83; Vittitow v. Bur-
nett, 112 Ark. 277, 165 S. W.
625; Lovell v. Frost, 44 Cal. 471;
McMahill v. Torrence, 163 111.
277, 45 N. E. 269; Litchfield v.
Sewell, 97 Iowa, 247, 66 N. W.
104; Pratt v. Ard, 63 Kan. 182,
65 Pac. 255; Ray v. Barker's
Heirs, 1 B. Mon. (Ky.) 364;
Vaughan v. Bacon, 15 Me. 455;
Warren v. Bowdran, 156 Mass.
280, 31 N. E. 300; City of St.
Paul V. Chicago, M. & St. P. R.
Co., 63 Minn. 330, 34 L. R. A.
184, 63 N. W. 267, 65 N. W.
649, 68 N. W. 458; Tomlinson v.
Lynch, 32 Mo. 160; Stone v.
Kansas City & W. B. R. Co., 261
Mo. 61, 169 S. W. 88; Nebraska
Ry. Co. V. Culver, 35 Neb. 14:5,
52 N. W. 886; Keneda v. Gardner,
4 Hill (N. Y.) 464; Williams v.
Scott, 122 N. C. 545, 29 S. E.
877; IngersoU v. Lewis, 11 Pa.
St. 212, 51 Am. Dec. 536; Erskine
V. North, 14 Gratt. (Va.) 60.
Contra, McAllister v. Hartzell, 60
Ohio St. 69.
That the person in possession
instituted a suit for specific per-
formance against the rightful
owner was held to involve an ad-
mission of the latter's title. Cen-
tral Pac. Ry. Co. v. Tari)ey.—
Utah—. 168 Pac. 554.
37. Patton v. Smith. 171 Mo.
231, 71 S. W. 187; Joy v. I'ale-
thorpe. 77 Ore. 552. 152 Pac. 230.
38. Chirago etc. R. Co. v. Kee-
gan. 185 111. 70. 56 N. E. 1088;
Patterson v. Reigle, 4 Pa. 201;
Whitaker v. Thayer, 38 Tex. Civ.
537, R6 S. W. 364; City of Clovo-
liind V. Clevflund, <".. C. & Sf. L.
Ry. Co., 93 Fed. 113; An<l soc
cases cited auir, § 504 nolo 84;
1962 Eeal Property. [§ 507
the other's title, and such other should be excused from
the obligation of asserting his title within the statutory
period only when the possessor acknowledges his title
by direct communication, and the latter is thereby in-
duced to refrain from asserting his title.
Effect of offer to purchase. Whether, in a
particular case, there was such a recognition of the
rightful title as to change the character of the posses-
sion, would seem ordinarily to be a question of fact, but
the courts have tended to discuss it as a matter of law,
particularly with reference to the question whether the
person in possession may offer to purchase from the
rightful owner, without thereby recognizing the latter 's
title. The proper distinction would seem to be that be-
tween an offer to purchase the land, and an offer to pur-
chase immunity from litigation, and that such is the dis-
tinction is recognized in a number of cases.^^ In some
cases, on the other hand, such a distinction appears to
be ignored, and an offer to purchase from the rightful
owner is regarded as necessarily involving a recogni-
tion of the latter 's title.* «
Effect of contract or conveyance. The fact
that the wrongful possessor actually contracts to pur-
see also Bryan v. Atwater, 5 Day. St. Rep. 978, 99 N. W. 1027.
181; Bank v. Wilson, 10 Watts, 40. Litchfield v. Sewell, 97
261; McAllister v. Hartzell, 60 Iowa, 247, 66 N. W. 104; Gay v.
Ohio St. 69, 13 N. E. 715. Moffitt, 2 Bibb (Ky.) 506, 5 Am.
39. Lovell V. Frost, 44 Cal. Dec. 633; Moore v. Moore, 21 Me.
471; Central Pacific R. Ca. v. 350; Croze v. Quincy Mining Co.,
Mead. 63 Cal. 112; Montgomery 199 Mich. 515, 165 N. W. 786;
& Mullen Lumber Co. v. Quimby, Jackson v. Britton, 4 Wend. (N.
164 Cal. 250, 128 Pac. 402; Chapin Y.) 507; Truman v. Raybuck, 207
V. Hunt, 40 Mich. 595; Walbrun v. Pa. St. 357, 56 Atl. 944.
Ballen, 68 Mo. 164; Oldig v. Fisk, That such an offer tends to
53 Neb. 156, 73 N. W. 661 prove that the possession is not
(sembZe) ; Chambers v. Bessent. adverse, see Liggett v. Morgan,
17 N. Mex. 487, 134 Pac. 237; 98 Mo. 39, 11 S. W. 241. Alsup
Headrick v. Fritts, 93 Tenn. 270, v. Stewart, 194 111. 595, 88 Am.
24 S. W. 11; Meyer v. Hope, 101 St. Rep. 169, 62 N. E. 795;
Wis. 123, 77 N. W. 720; Clithero Zweibel v. Myers, 69 Neb. 294,95
v. Fenner, 122 Wis. 356, 106, Am. N. W. 597.
<§> 507] Adverse Possession. 1963
chase from the rightful owner, should not, it is con-
ceived, any more than should his offer to purchase, bo
considered conclusive of his recognition of the latter 's
title, but there are occasional decisions in which it has
been apparently so regarded.^ ^ The lanouage of the
contract may of course show such recognition.^-
If the person in wrongful possession actually takes
a conveyance from the true owner, he will oidinarily
base his claim upon such conveyance rather than upon
the statute of limitations, but it may occur that the con-
veyance is invalid, or that it covers only part of the
property. The language of the conveyance may no
doubt be such as to show a recognition of the grantor's
title,*^ but apart from this, it seems that the wrongful
possessor's acceptance of a conveyance, while it may be
evidence of his recognition of the grantor's title,^'* is
not conclusive thereof."*^
Effect of taking lease. The taking of a lease
from the true owner would almost necessarily, it seems,
involve a recognition of the latter 's title, since the lease
cannot well be regarded as acquired merely to i)rotect
41. Olson V. Burk, 94 Minn. Meyer v. Hope, 101 Wis. 123, 77
456, 103 N. W. 335; Cluss v. N. W. 720; Elder v. McClaskey,
Hackett, 127 Minn. 397, 149 N. W. 70 Fed. 529, 17 C. C. A. 251. But
647; Texas, N. 0. R. Co. v. that it necessarily interrupts tbe
Speights, 94 Tex. 350, 60 S. W. running of the statute, see Jack-
659. son V. Sears, 10 Johns. (N. Y.)
42. Cahuac v. Cochrane, 41 Up. 435.
Can. Q. B. 437. That the acquistion of a tax
43. As in Ingersoll v. Lewis, title does not interrupt the run-
11 Pa. St. 212, 51 Am. Dec. 536. ning of the statute, see Hayes v.
44. Price v. Greer, 89 Ark. 300, Martin, 45 (^al. 559; Mather v.
116 S. W. 676, 118 S. W. 1009. Walsh. 107 Mo. 121, 17 S. W. 755;
45. Ripley v. Miller, 165 Mich. Griffith v. Smith, 27 Neb. 47. 42
47, 52, 130 N. W. 345, Ann. Cas. N. W. 749; Zweibel v. Myers. 69
1912C, 952; Bryani v. Prewitt, Nen). 294, 95 N. W. 597; Bannon
132 Ky. 799, 117 S. W. 343; .John v. Brandon, 34 Pa. 263, 75 Am.
L. Roper Lumber Co. v. Richmond Doc. 655; Silverstone v. Hanley.
Cedar Works, 168 N. C. 344, Ann. 55 Wash. 458. 104 Pac. 767.
Cas. 1917B, 992, 84 S. B. 523;
1964 Real Pkopeety. [§ 507
the lessee from an unfounded claim by the owner.*^
That it does interrupt the running of the statute has
been decided in a number of cases.^'^ A mere offer to
take a lease would seem also to be strong evidence of
recognition of the other's title, even if not conclusive
in that regard.^*'* But the taking of a lease of a tract
adjoining the land of which the lessee is in wrongful
possession cannot be regarded as involving a recogni-
tion of the lessor's title to the latter land, merely be-
cause he is the owner of both tracts."'^
Recognition of title in third person. Whether
the recognition or admission by the person in posses-
sion, that the title is in a third j^erson, operates to inter-
rupt the running of the statute as against the true
owner, appears to depend on whether it is to be con-
ceded that a claim of title, or as otherwise expressed,
possession hostile to the whole world, is necessary to
the running of the statute. It is, it is submitted, not
necessary,^" and consequently such recognition does not
interrupt the running of the statute. Such recognition
may, however, if it goes to the extent of an attornment to
46. But see Bidwell v. Evans, ment of the lessor's title. It
156 Pa. 30, 26 Atl. 817. would rather seem, h6wever, that
47. Abbey Homestead Ass'n v. the invalidity of the lease would
Willard, 48 Cal. 614; Chicago ordinarily be immaterial in this
etc. R. Co. V. Keegan, 185 111. 70, regard.
56 N. E. 1088; Boling v. Ewing, 48. Risher v. Madsen, 94 Neb.
9 Dana (Ky.) 76; Campau v. 72, 142 N. W. 700; Horton v.
LalTerty, 43 Mich. 429. 50 Mich. Davidson, 135 Pa. 186, 19 Atl. 934.
114, 5 N. W. 648, 15 N. W. 40; 49. O'Flaherty v. Mann, 196
Olson V. Burk, 94 Minn. 456, 103 111. 304, 63 N. E. 727; Rabberman
N. W. 335; Hermann v. Mclver. v. Carroll, 207 111. 253, 69 N. E.
51 Tex. Civ. App. 270, 111 S. W. 759; Tex v. Pflug, 24 Neb. 66, 8
766; Northern Pac. R. Co. v. Am. St Rep. 231, 39 N. W. 839;
George, 51 Wash. 303, 98 Pac. Levy v. Yerga, 25 Neb. 764, 13
1126. In Broad v. Beatty, 73 Ark. Am. St. Rep. 525, 41 N. W. 773;
106, 83 S. W. 339, it is decided Dixon v. Baty, L. R. 1 Exch. 259.
that the acceptance of a void 50. Ante, § 503, note 47a. In
lease raises merely a rebuttable Chicago & Alton R. Co. v. Keegan,
presumption of an acknowledg- 185 111. 70, 56 N. E. 1088, it
§ 507] Adveese Possession. 1965
such third person as tenant, or an agreement to hokl as
agent of such person, have the result of making the
possession thereafter enure to the benefit of such person
rather than of the actual possessor."^^
That the person in wrongful possession purchases,
or offers to purchase, the claim of a third person to the
land, has been decided not to affect the running of the
statute as against the true owner.^- These decisions
might be based upon the theory, either that the pur-
chase did not involve any recognition of the title of the
third person, or that the recognition of the title of a
third person does not interrupt the running of the stat-
ute against the rightful owner.
If two persons have distinct interests in property
which is in the adverse possession of another person, the
fact that the latter purchases or otherwise acquires the
interest of one of such two jDersons does not affect the
running of the statute as against the other of such per-
sons.^^ Accordingly the fact that the wrongful posses-
sor purchases the interest of one tenant in common does
not preclude him from asserting the statute as against
the other tenants in common. ^^ Even were it conceded
appears to be decided that if one Mass. 280, 31 N. E. 300; Dean v.
in adverse poss^ession makes a con- Goddard, 55 Minn. 290, 56 N. W.
veyance of the land to another, 1060; Wiese v. Union Pac. R. Co. 77
without however relinquishing Neb. 40, 108 N. W. 175; Northrop
possession, the continuity of the v. Wright, 7 Hill (N. Y.) 476;
adverse possession is broken. West v. Edwards, 41 Oreg. 609, 09
This would seem to be upon the Pac. 992; Bannon v. Brandon,
theory that recognition of the title 34 Pa. St. 363, 75 Am. Dec. 655:
as being in a third person inter- Alsworth v. Richmond, Cedar
rupts the ninning of the statute. Works, 172 N. C. 17, 89 S. K.
51. See Robinson v. Bazoon. 1008.
79 Tex. 524, 15 S. W. 585, and 53, See City of St. Paul v.
ante, § 501, note 31. Chicago M. & SI. P. H. Co.. 45
52. Singer Mfg. Co. v. Stock- Minn. 387, 48 N. W. 17.
man, 36 Cal. 535, 95 Am. Dec. 54. Elder v. McClaskey, 70
205; Clark v. Peckenpaugh. 4»; Fed. 529, 17 C. C. A. 251; Winter-
Ill. 11; Medlock v. Suter, 80 Ky. burn v. Chambers. 91 Cal. 170,
101; Bean v. Bachelder, 74 Me. 27 Pac. 658; Richardson v. Watta,
202; Warren v. Bowdran, 156 94 Me. 476, 48 Atl. 180; Cook v.
2 R. P.— 49
1966 Real Peopeety. [^ 507
that the recognition of a title, which is really in A, as
being in B would interrupt the running of the statute
aganst A, the recognition of the title to one interest as
being in B would not interrupt the running of the stat-
ute against A as to an entirely distinct interest.
Effect of tenant's acknowledgment. If one is
in wrongful possession by his tenant,"^^ a question may
arise as to whether the tenant's acknowledgment of the
true owner's title deprives the possession of the ele-
ment of hostility, so as to interrupt the running of the
statute. There are a number of decisions to the effect
that such acknowledgment does not interrupt the run-
ning of the statute,^*^ while it has occasionally been as-
serted that it does cause such interruption.^'^ And in a
few cases it has been decided that it causes such inter-
ruption if the rightful owner does not know of the rela-
tion of tenancy.^* These latter cases would seem to in-
dicate the proper distinction in this regard. If the
rightful owner has no reason to suspect that the person
wrongfully in possession of his land is so in possession,
not in his own behalf but in behalf of another, he is
justified in assuming that the person in possession has
full power to characterize his possession, as being hostile
or the reverse, and if such person acknowledges the true
Clinton, 64 Mich. 309, 8 Am. St. Robertson, 99 Tex. 138, 122 Am.
Rep. 816, 31 N. W. 317: St. Paul St. Rep. 609, 86 S. W. 746, 87 S.
V. Chicago etc. R. Co., 45 Minn. W. 1148; Pickens v. Stout, 67 W.
387, 48 N. W. 17; Jackson v. Va. 422, 68 S. E. 354.
Smith, 13 Johns. (N. Y.) 406; 57. Russell v. Irwin, 38 Ala.
Northrop v. Wright, 7 Hill. (N. 44; Illinois Steel Co. v. Budsisz,
Y.) 476; Coakley v. Perry, 3 Ohio 115 Wis. 68, 90 N. W. 1019;
St. 344. Western Union Beef Co. v. Thur-
55. Ante, § 501. note 31- man, 70 Fed. 960, 17 C. C. A. 532.
56. Elliott V. Dycke, 78 Ala. 58. Koons v. Steele, 19 Pa. St.
150; Mills V. Bodley, 4 T. B. Mon. 203; Thompson v. Pioche, 44 Cal.
(Ky.) 248; Middlesboro Water- 508; Louisiana & Texas Lumber
works V. Neal, 105 Ky. 58, 49 S. Co. v. Alexander, — Tex. Civ. App.
W. 428; Warren v. Frederichs, 76 — , 154 S. W. 233.
Tex. 647, 13 S. W. 643; Cobb v.
>^ 507] Adverse Possession. 1967
owner's title, tlie latter is not guilty of laches in failing
to take legal proceedings. On the other hand, if the
rightful owner has reason to know that the person in
possession is in possession merely in behalf of another,
he has no right to assume that such person has authority
to acknowledge his title, or, by reason of such acknowl-
edgment, to refrain from legal proceedings. In at least
one state-^^ it has been said that the fact that tlie land-
lord is unaware of the acknowledgment by his tenant of
the true owner's title is a reason for not regarding such
acknowledgment as effecting an interruption."'^ This
view is apparently based on the theory that if the land-
lord is aware of the acknowledgment by the tenant, he
may be regarded as having previously authorized it, or
as being in a position to repudiate it and to recover pos-
session from the tenant.
Occasionally the asserted inability of the tenant to
interrupt the running of the statute by taking a lease
from the true owner is in tenns based" ^ on the rule that
a tenant in possession cannot attorn to a third person not
having the reversion."- But whether the acknowledg-
ment of title takes the form of an attornment, that is,
the acceptance of a lease, is immaterial. The tenant
cannot usually interrupt the running of the statute in
favor of his landlord, hj acknowledging title in the tnie
owner, for the reason that he has no authority to make
such an acknowledgment. He represents his landlord
59. Haynes v. Boardman, 119 takes such measures was regarded
Mass. 414. And see Rankin v. as showing that the running of
Tenbrook, 5 Watts (Pa.) 383. the statute was interrupted.
60. In Coyle v. Franklin, 54 61. See Elliott v. Dycke. 78
Fed. 644, 4 C. C. A. r,38, it is Ala. 150; Ellsworth v. Ksliok, 91
decided that the acknowledgment Kan. 287, 137 Pac. 973; Cobb v.
by the tenant does not interTui)t Robfrtson, 99 Tex. 138. 122 Am.
the running of the statute if the St. Rep. 609, 8(i S. W. 74n, S7 S.
landlord immediately takes meas- W. 1148; Rankin v. Tenbrook. Ti
ures to recover the possession as Watts (Pa.), 386.
having been forfeited by the ten- 62. See 1 Tiffany, liandlord &
ant. In Custer v. Hall, 71 W. Va. Tenant, § 19.
119, 76 S. E. 183, a failure to
l'J68 Eeal Property. [§ 508
for the purpose of holding possession against third per-
sons, bnt not for the purpose of acknowledging the title
of third persons.
§ 508. Tacking. The question has frequently
arisen whether the running of the statute against the
true owner is affected by the fact that during the statu-
tory period, although the possession was continuously
hostile to the true owner, it was the possession, not of
one person alone, but of two or more persons in succes-
sion. This question is ordinarily discussed with refer-
ence to the relation between themselves of the succes-
sive possessors, and it is said that successive possessions
by different persons may be "tacked," so as to defeat
the claim of the rightful owner, if such persons are in
privity one with another, the expression ''privity" serv-
ing to indicate the relationship which exists between two
or more persons, one of whom claims under the other
or others, as representing the same persona or estate.®^
That an heir is entitled to tack his ancestor's pos-
session to his own is generally conceded,*'^ and, by the
very great weight of authority, one to whom another,
having adverse possession of the land, voluntarily trans-
fers the possession, can tack to his own possession the
possession of the latter,*'^ even though the transfer of
63. Holmes, The Common Law, 42 S. E. 426; CivH v. Toomey,
368. 103 S. C. 460, 88 S. E. 261; East
64. Sawyer v. Kendall, 10 Cush. Tennessee Iron & Coal Co. v.
(Mass.) 241; Fugate v. Pierce, Broyles, 95 Tenn. 613, 32 S. W.
49 Mo. 441; Montague v. Marunda, 761.
71 Neb. 805, 99 N. W. 653; Alex- 65. Frost v. Courtis, 172 Mass.
ander v. Gibbon, 118 N. C. 796, 54 401, 52 N. E. 515; Gage v. Gage,
Am. St. Rep. 757, 24 S. E. 748; 30 N. H. 421; McNeely v. Langan,
Barrett v. Brewer, 153 N. C. 547, 22 Ohio St. 32; Overfield v.
42 L. R. A. N. S. 403, 69 S. E. Christie, 7 Serg. & R. (Pa.) 173.
614; McNeely v. Langan, 22 Ohio And see cases cited in next note.
St. 32; Rowland v. Williams, 23 Contra, King v. Smith, Rice (S.
Or. 515, 32 Pac. 402; Overfleld v. C.) 10; Garrett v. Weinberg, 48
Christie, 7 Serg. & R. (Pa.) 173: S. C. 28.
Epperson v. Stansill, 64 S. C. 485.
§ 508]
Adverse Possessiojs",
1969
possession is accompanied merely by an oral agreement
of transfer of title or by an invalid written convey-
ance.^^ Consequently, in spite of decisions that, if the
land in dispute is not included in the description in a
particular conveyance, the possessions of the grantor
and grantee cannot be tacked,''^ it seems that even in
such case the possessions can be tacked if there was an
oral transfer of the possession by the former to the
latter, in addition to the making of the written conve}'-
ance.^®
A devisee can tack to his possession that of his
devisor,''^^ and even in the case of a sale under judicial
process or decree, the purchaser has been held entitled
66. Faloon v. Simshauser, 130
111. 649, 22 N. E. 835; Shedd v.
Alexander, 270 111. 117, 110 N. E.
327; Comm. v. Gibson, 85 Ky. 666;
Wishart v. McKnight, 178 Mass.
356, 86 Am. St. Rep. 486, 59 N.
E. 1028; Sherin v. Brackett, 36
Minn. 152, 30 N. W. 551; Crispen
V. Hannavan, 50 Mo. 536: Davock
V. Nealon, 58 N. J. Law 21, 32 Atl.
675; McNeely v. Longan, 22 Ohio
St. 32; Parker v. Wolf, 69 Or. 446,
138 Pac. 463; Hughs v. Pickering,
14 Pa. St. 297; Illinois Steel Co.
V. Budsisz, 106 Wis. 499, 48 L. R.
A. 830, 80 Am. St. Rep. 54, 81
N. W. 1027, 82 N. W. 534; Ram-
bert V. Edmondson, 99 Tenn. 15,
63 Am. St. Rep. 819, 41 S. W. 935;
Moran v. Moseley — Tex. Civ. App.
— , 164 S. W. 1093. But see
Sheldon v. Michigan Cent. R. Co.
161, Mich. 503, 126 N. W. 1056,
criticized 10 Columbia Law Rev.
763.
67. Southern Iron & Steel Co.
V. Stowers, 189 Ala. .^14, 66 So.
677; Messer v. Hibernia Sav. etf.
Soc. 149 Cal. 122, 84 Pac. 835;
Rich V. Naffziger, 255 111. 98, 99
N. E. 341; Lake Shore & M. S.
Ry Co. V. Sterling, 189 Mich. 36t;,
155 N. W. 383; Jennings v. White,
139 N. C. 23, 51 S. E. 799:
Ferguson v. Prince, 136 Tenn. 543.
190 S. W. 548; Allis v. Field, 89
Wis. 327, 62 N. W. 85.
68. St. Louis Southwestern R.
Co. V. Mulkey, 100 Ark. 71, Ann.
Cas. 1913C. 1339, l.'^9 S. W. 643;
Rich V. Naffziger, 255 111. 98, 99
N. E. 341; Helmick v. Davenport.
R. I. & N. W. Ry. Co., 174 Iowa,
558, 156 N. W. 736; Vandall v.
St. Martin, 42 Minn. 163, 44 N. W.
525; Crowder v. N'eal, lOn Miss.
730, 57 So. 1; West v. Edwards.
41 Or. 609. 69 Pac. 992: Nah?r v.
Farmer, 60 Wash. 600, 111 Pac.
768; Mielke v. Dodge, 135 Wis.
388. 115 N. W. 1099: Clithcro v.
Fenner, 122 Wis. 3r,6. 99 N. W.
1027, 106 Am. St. Rep. 978.
68a. Shaw v. Nicholay. 30 .Mo.
99; Sherin v. Brackett, 36 Minn.
152. 36 N. W. 551; Dunbar v.
Aldrich, 79 Miss. 698, 31 So. 341;
Hart V. Wllllania, 1S9 Pa. 31. 41
All. 983. Contra. Burnett v. Craw-
ford. 50 S. Car. ir.l. 27 S. E. 645.
1970 Real Peopeety. [§ 508
to tack to his possession the possession of tlie person
or persons whose title the sale was intended to divest.^^
It has been held that one claiming as remainderman
under a will may tack to his own possession the posses-
sion of the testator and the life tenant under the will,
since the possession of each is under the same titleJ"
If the personal representative of decedent, without
statutory or testamentary authority, takes possession,
his possession is in effect that of a wrongdoer, and it
cannot be tacked to the possession of decedent.'^^ The
rule is different, however, if he has authority to take
possession.'^-
Wlien, upon the death of a tenant in fee simple," his
widow remains in possession claiming by reason of a
statute giving to a widow the right of possession, there
would seem to be such. a ''privity" between the deceased
and his widow as to entitle her to tack his possession to
her own,"^^ the case being somewhat analogous to that of
tacking by the heir. And in such a case the temporary
possession of the widow may, it seems, be tacked to that
of the husband's heirs, in order to give the latter title
69. Riggs V. Fuller, 54 Ala. Co. v. Ferguson,— Tenn Ch. — , 35
141; Memphis L. R. R. Co. v. S. W. 900.
Organ, 67 Ark. 84, 55 S. W. 952; 72. Cannon v. Prude, 181 Ala.
Kendrick v. Latham, 25 Fla. 819, 629, 62 So. 24; Vanderbilt v.
6 So. 871; Dunbar v. Aldrich, 79 Chapman, 172 N. C. 809, 90 S. E.
Miss. 698, 31 So. 341; Miller v. 993; Rowland v. Williams, 23 Ore.
Bumgardner, 109 N. C. 412, 13 S. 515, 32 Pac. 402. See Ricker v.
E. 935; Clark v. Bundy, 29 Ore. Butler, 45 Minn. 545, 48 N. W.
190, 44 Pac. 282; Cooper v. Great 407.
Falls Cotton Mills Co., 94 Tenn. 73. To that effect see McEntire
588, 30 S. W. 353; Hall v. Hall, 27 v. Brown, 28 Ind. 347; Mills'
W. Va. 468. Heirs v. Bodley, 4 T. B. Mon.
70. Haynes v. Boardman, 119 (Ky.) 248; Atwell v. Shook, 133
Mass. 414; Hart v. Williams, 189 N. Car. 387, 45 S. E. 777; John-
Pa. 31, 41 Atl. 983. Contra, son v. Johnson, 106 Ark. 9, 152
Austin V. Rutland R. Co., 45 Vt. S. W. 1017; Mielke v. Dodge, 135
215. See Hickman v. Link, 97 Wis. 388, 115 N. W. 1099. Contra,
Mo. 482, 10 S. W. 600. semble, Robinson v. AUison, 124
71. Bullen v. Arnold, 31 Me. Ala. 325, 27 So. 461.
583; East Tennessee Iron & Coal
§ 508] Adveesb Possession. 1971
by adverse possession.'^ When the widow has no right
of possession immediately on the husband's death, but
merely a right to have dower assigned to her, the pos-
session of the widow can, it has been held, not be tacked
to the possession of the husband."^ This view has, how-
ever, been questioned, it being asserted that the posses-
sion of the widow in such case, not being adverse to the
heirs,'^*' should be regarded as in their behalf and con-
sequently subject to be tacked to the possession of the
decedent to the same extent as that of the heirs. '^^
If one who is in adverse possession leases in turn
to different persons, the possession of each of these
lessees is, for the purpose of the statute of limitations,
the possession of the lessor,"^^ and the possessions of the
lessees may be tacked together, and may also be tacked
to that of the lessor.'^'' And if one in adverse posses-
sion in his own right attorns to a third person, or
agrees to hold as the latter 's agent, his possession in
his own right may, it would seem, be tacked to his pos-
session in behalf of such third person, for the purpose
of barring the claim of the true owner.^^^
It has been asserted, in quite a number of cases,
that one w^ho disseises another whose own possession
74. Hickman v. Link, 97 Mo. See editorial note 17 Harv. Law
482, 10 S. W. 600; AtweU v. Rev. at p. 277.
Shook, 133 N. Car. 387, 45 S. E. 78. Aiite. § 501. note 31.
777; Jacobs v. WiUiams, 173 N. 79. Ramsey v. Glenny, 45
C. 276, 91 S. E. 951; Mills' Heirs Minn. 401, 22 Am. St. Rep. 736.
V. Bodley, 4 T. B. Mon. (Ky.) 48 N. W. 322; Landon v. Town-
248. shend, 129 N. V. 166, 29 N. E. 71;
75. McEntire v. Brown, 28 Ind. Alexander v. Gibbon, 118 N. C.
347; Sawyer & Kendall. 10 Gush. 796, 54 Am. St. Rep. 757, 24 S. E.
(Mass.) 241; Marr v. Gilliam, 1 748; Weaver v. Love, 146 N. C.
Coldw. (Tenn.) 488; Baker v. 414, 59 S. E. 1041; Thompson v.
Hale, 6 Baxt. (Tenn.) 46; Doe v. Kauffelt, 110 Pa. St. 209, 1 Atl.
Barnard, 13 Q. B. 945. 267; Sims v. Eastland, 3 Head 3i;S;
76. Post, § 513 (k), note 60. Hanks v. Houston Oil Co. of
77. Atwell V. Shook, 133 N. C. Texas,— Tex Civ.—, 173 S. W. 635.
387, 45 S. E. 777; Mill's Heirs v. 80. But Robinson v. Bazoon, 19
Bodley, 4 T. B. Mon. (Ky.) 248. Tex. 524, 15 S. W. 585, is contra,
1972
Real Pbopeety.
[§ 509
was that of a disseisor, and so adverse to the record
owner, cannot tack the adverse possession of such other
to his own adverse possession, in order to make up the
statutory period.*^ There are a few cases of a con-
trary tendency, ^2 and the view first referred to has heen
criticized on the ground that the statute of limitations
should be applied as against one who allows himself to
remain out of possession for the statutory period, with-
out reference to who may happen to be seised of the
land during that period.^^
There can be no tacking if the possession of one
person does not immediately follow upon that of the
other, since in that case the element of continuity of
possession is absent.^^
§ 509. Personal disabilities. The statute of limita-
tions invariably extends the period for bringing an ac-
81. Little V. Vice,— Ala.— , 76
So. 942; Lucy v. Tennessee & C.
R. Co., 92 Ala. 246, 8 So. 806;
City & County of San Francisco
V. Fulde, 37 Cal. 349, 99 Am. Dec.
278; Smith v. Chapin, 31 Conn.
531; McEntire v. Brown, 28 Ind.
347; Sawyer v. Kendall, 10 Cush.
(Mass.) 241; Sherin v. Brackett,
36 Minn. 152, 30 N. W. 551;
Crispen v. Hannavan, 50 Mo. 536;
Locke V. Whitney, 63 N. H. 597, 3
Atl. 920; Low v. Schaffer, 24 Ore.
239, 33 Pac. 678; Erck v. Church,
87 Tenn. 75, 4 L. R. A. 641, 11
S. W. 794; Heflin v. Burns, 70
Tex. 347, 8 S. W. 48; Jarrett v.
Stevens, 36 W. Va. 445, 15 S. E.
177.
82. Fanning v. Willcox, 3 Day
258; Shannon v. Kinny, 1 A. K.
Marsh 3; Hord v. Walton, 2 A. K.
Marsh 620; Candler v. Lunsford,
4 Dev. & B. 407; Davis v. Mc-
Arthur, 78 N. C. 357; Scales v.
Cockrill, 3 Head, 432. And see
Wishart v. McKnight, 178 Mass.
356, 86 Am. St. Rep. 486, 59 N.
E. 1028.
83. 3 Harv. Law Rev. at p.
324, article by Professor J. B.
Ames, reprinted. Lectures on
Legal History, at p. 205. See also
1 Harvard Law Rev. 248. 10
Columbia Law Rev. 761. The
merits of the prevailing view are
excellently presented by Professor
Henry W. Ballantine, 32 Harv.
Law Rev. at p. 147 et seg.
84. Louisville N. R. Co. v.
Philyaw, 88 Ala. 264, 6 So. 837;
Kilburn v. Adams, 7 Mete.
(Mass.) 33, 39 Am. Dec. 754;
Turner v. Baker, 64 Mo. 218, 27
Am. Rep. 226; Brandt v. Ogden,
1 Johns. 156; Jackson v. Leonard.
9 Cow. (N. Y.) 653; Cunningham
v. Patton, 6 Pa., 355; Warren v.
Fredericks, 76 Tex. 647, 13 S. W.
643; Winslow v. Newell, 19 Vt.
§ 509] Adverse Possession. 1973
tion to recover land in case tlie plaintiff was under dis-
ability at the time the right of action accrued. The
Statute of James I. contained such provision in favor
of (1) persons under twenty-one years, (2) femes covert,
(3) persons uon compos mentis, (4) persons imprisoned,
and (5) persons *' beyond the seas."
The saving clause in favor of infants is retained in
most, if not all, of the state statutes, though the time at
which infancy ceases differs in different states. Tlie
saving in favor of married women also still exists in the
majority of states, though in some it has been expressly
abolished, in view of legislation enal)ling a married wo-
man to sue alone. The saving in favor of persons uoi
compos mentis is usually retained, and those in favor of
persons imprisoned and of persons "beyond the seas,"
or, what is regarded as equivalent, "absent from the
United States," are also frequently to be found. In
some states, moreover, there are exceptions in favor of
alien enemies. The statutes differ greatly as to the ex-
tent of time after the removal of the disability within
which an action may be brought, some naming the full
period of limitation, and others naming a much shorter
period.^^
These exceptions in statutes limiting tlie time for the
recovery of land, as in those applical)le to personal ac-
tions only, are usually construed as api)licabl(' only to
a disability existing at the time of the accrual of the
right of action, and the fact that a disability in llu'
owner to sue arises after such accrual does not aft'ect
the running of the statute.^*' Accordingly, if the right
of action has once existed in favor of a person, the fact
164; Jarrett v. Stevens, 36 W. Va. Ga. 267. 63 Am. Dec. 235; Currier
445, 15 S. E. 177. v. Gale, 3 Allen (Mass.) 328;
85. The statutory provisions as Demarest v. Wynkoop, 3 Johns,
to disabilities are summarized In Ch. (N. V.) 129, 8 Am. Dec. 476;
Wood, Limitations (3d Ed.) § Holmes v. Carr. 172 N. C. 213, 90
237. Dembitz, Land Titles § 177. S. E. 152; Milton v. Pace, 85 S.
86. Doe d. Caldwell v. Thorp, 8 C. 373, 67 S. E. 458.
Ala. 253; Wellborn v. Weaver, 17
1974
Real. Propeety.
[§ 509
that it passes from him by descent to one under the dis-
ability of infancy does not extend the time for bringing
suit.*^ And if a disability existing at the time of the
disseisin or other accrual of the cause of action is once
removed, the fact that a subsequent disability inter-
venes, as when a female infant, after arriving at age,
marries, such subsequent disability does not operate in
her favor.^^
If the owner of the land is under two or more disa-
bilities at the time of the accrual of the cause of action,
he may take advantage of both, or, rather, of the one
which endures the longest;*^ but if only one disability
exists at that time, he can take advantage of that alone,
and the fact that, before such disability terminates, an-
other intervenes, as when an infant feme sole marries,
does not extend the time for the recovery of the land,
or, as it is frequently stated, disabilities cannot be
'' tacked. "^*^ Likewise, the disabilities of different per-
87. Harris v. McGuvern, 99 U.
S., 61 affirming 2 Sawy. 515, Fed.
Cas. No. 6125; Gates v. Beck-
worth, 112 Ala. 356, 20 So. 399;
Castro V. Geil, 110 Cal. 292, 52
Am. St. Rep. 84, 42 Pac. 804;
Doyle V. Wade, 23 Fla. 90, 11
Am. St. Rep. 334, 1 So. 516;
Hale's Heirs v. Ritchie, 142 Ky.
424, 134 S. W. 474; Ray v. Thur-
man's Ex'r, 13 Ky. L. Rep. 3,
15 S. W. 1116; Burdett v. May.
100 Mo. 13, 12 S. W. 1056; Lyons
V. Carr, 77 Neb. 883, 110 N. W.
705; Jackson v. Moore, 13 Johns.
(N. Y.) 513, 7 Am. Dec. 398;
Campbell v. Dick,— Okla.— , 157
Pac. 1062; Lynch v. Cox, 23 Pa.
265; Fore v. Berry, 94 S. C. 71,
78 S. E. 706; Pickens v. Stout, 67
W. Va. 422, 68 S. E. 354. Contra,
Everett's Ex'rs v. Whitfield's
Adm'rs, 27 Ga. 133. That the
disability of a devisee is not avail-
able, if the statute had begun to
run in favor of testator, see De
Hatre v. Edmunds, 200 Mo. 246,
98 S. W. 744.
88. Gherson v. Brooks, — (Ark.)
— , 5 S. W. 329; Keil v. Healey,
84 111. 104, 25 Am. Rep. 434;
Priddy v. Boice, 201 Mo. 309, 99
S. W. 1055, 119 Am. St. Rep. 762,
9 Ann. Cas. 874, 9 L. R. A. (N.
S.) 718.
89. Jackson v. Johnson, 5 Cow,
(N. Y.) 74, 15 Am. Dec. 433;
Butler V. Howe, 13 Me. 397;
North V. James, 61 Miss. 761;
Keeton's Heirs v Keeton's Adm'r,
20 Mo. 530; Blake v. Hollands-
worth, 71 W. Va. 387, 43 L. R. A.
(N. S.) 714, 76 S. E. 814.
90. Bunce v, Wolcott, 2 Conn.
27; White v. Clawson, 79 Ind.
188; Duckett v. Crider, 11 B.
Mon. (Ky.) 188; Wickes v.
Wickes, 98 Md. 307, 56 Atl. 1017;
§ 510] Advebse Possession. 1975
sons canuot be tacked, in order to make up tlie statutory
period; and so, if the owner is under a disability from
the time of the accrual of the right of action till his
death, his infant heir cannot tack his own disability to
that of his ancestor, in order to extend the statutory
period.^'
§ 510. Exception in favor of the sovereign. Ac-
cording to the maxim Nullum tempus occurrit regi, the
adverse possession of land belonging to the state cannot,
unless the statute otherwise provides, divest the govern-
ment title.*^- Nor can the state authorities, even by an
express provision to that effect, make the statute of
limitations effective as against the United States.^-^ The
statutory limitation begins, however, to run in favor
of one in hostile possession of public land so soon as its
ownership passes to a grantee of the government. In
determining the time at which the private ownership be-
gins for this purpose, the decisions are not in accord,
some holding that it does not begin until the issue of
the patent,^^ while others consider it as beginning so
Herndon v. Yates — (Mo.)—, 194 Central Pac. R. Co., 24 Cal. 245;
S. W. 46; Nutter v. De Roche- Twining v. City of Burlington,
mont, 46 N. H. 80; Demarest v. 68 Iowa, 284, 27 N. W. 243; Hall
Wynkoop, 3 Johns. Ch. (N. Y.) v. viittings* Lessee, 2 Har. &
129, 9 Am. Dec. 476; Cozzens v. J. (Md.) 112; Munshower v.
Farnan, 30 Ohio St. 491, 27 Am. Patton, 10 Serg & R. (Pa.) 334.
Rep. 470; Thompson v. Smith, 7 13 Am. Dec. 678; Hall v. Webb,
Serg. & R. (Pa.) 209; McFarland 21 W. Va. 318. See, as to stat-
V. Stone, 17 Vt. 165, 44 Am. Dec. utes on the subject, 2 Dembitz,
325; Contra, Miller v. Bumgard- Land Titles. § 179.
ner, 109 N. C. 412, 13 S. E. 935. 93. Gibson v. Chouteau. 13
91. Dowell V. Tucker. 46 Ark. Wall. ( U. S.) 92. 20 L. Ed. 534:
438; Griswold v. Butler, 3 Conn. Redfield v. Parks. 132 U. S. 239.
227; Pim v. City of St. Louis, 122 33 L. Ed. 327.
Mo. 654, 27 S. W. 525; Henry v. 94. RedHeld v. Parks, 132 U.
Carson, 59 Pa. St. 297; Jackson S. 239, 33 L. 9d. 327; String-
V. Houston, 84 Tex. 622, 19 S. fellow v. Tennessee Coal. Iron &
W. 799. R- R. Co., 117 Ala. 250, 22 S.
92. Wagnon v. Fairbanks, 105 E. 997; Mathews v. Ferrca, 45
Ala. 528, 17 So. 20; Doran v. Cal. 51; Chiles v. Calk. 4 Bibb
1976
Real Peopeety.
[§ 510
soon as, by payment for the land, the individnal has be-
come entitled to a patent.''^
The question of the extent to which the statute of
limitations runs against a municipal or quasi municipal
corporation, as regards land belonging to it, has been
the subject of much discussion, and the decisions are
not in accord on the question. In the majority of the
states, land owned by a municipality, and devoted to
uses of a purely public character, as when the "fee" of
a street or park is vested in the mmiicipality, or land is
conveyed to the municipality for a public building,
hospital, or the like, the municipality is regarded as
merely the agent of the state, and its rights cannot
be affected by the statute of limitations,'"'' though in a
(Ky.) 554; Smith v. McCorkle,
105 Mo. 135, 16 S. W. 602; King
V. Thomas, 6 Mont. 409, 12 Pac.
865; South End Min. Co. v.
Tinney, 22 Nev. 221, 38 Pac.
402; La Frombois v. Jackson, 8
Cow 589, 18 Am. Dec. 463; Clark
V. Southard, 16 Ohio St. 408;
Steele v. Boley, 7 Utah, 64, 24 Pac.
755.
95. Hibben v. Malone, 85 Ark.
584, 109 S. W. 1008; Bauman v.
Grubbs, 26 Ind. 419; Dolen v.
Black. 48 Neb. 688, 67 N. W. 760;
Ambrose v. Huntington 34 Ore.
484, 56 Pac. 513; Patten v. Scott,
118 Pa. St. 115, 12 Atl. 292, 4
Am. St. Rep. 576; Udell v. Peak.
70 Tex. 547, 7 S. W. 786; Dutton
V. Thompson, 85 Tex. 115, 19 S.
W. 1026.
96. Mobile Traii»;portation Co. v.
Mobile, 128 Ala. 3.35, 30 So. 645,
86 Am. St. Rep. 143, 64 L. R. A.
333; Board of Education of City
& County of San Francisco v.
Martin, 92 Cal. 209, 28 Pac. 799;
Norrell v. Augusta R. & Electric
Co., 116 Ga. 313, 59 L. R. A. 101,
42 S. E. 466; City of SuHivan
V. Tichenor, 179 111. 97, 53 N.
E. 561; Close v. Chicago, 257
111. 47, 100 N. E. 215; Cheek v.
City of Aurora, 92 Ind. 107;
Kuehl V. Town of Bettendorf, 179
Iowa, 1, 161 N. W. 28; Inhab-
itants of Charlotte v. Pembroke
Iron Works, 82 Me. 391, 8 L. R.
A. 828, 19 Atl. 902; Brady v.
City of Baltimore, 130 Md. 506,
101 Atl. 142; St. Vincent Female
Orphan Asylum v. Troy, 76 N.
Y. 108, 32 Am. Rep. 286; Heddle-
ston V. Hendricks, 52 Ohio St.
460, 40 N. E. 408; Comm. v.
Moorehead, 118 Pa. 344, 4 Am.
St. Rep. 559, 12 Atl. 424; McKee
V. Pennsylvania R. Co.. 255 Pa.
560, 100 At. 454; Almy v. Church,
18 R. I. 182, 26 Atl. 58; Norfolk
& W. R. Co. V. Supervisors of
Carroll County, 110 Va. 95. 65 S.
E. 531; Gustaveson v. Dwyer, 83
Wash. 303. 145 Pac. 458; Ralston
v. Town of Weston. 46 W. Va.
544, 76 Am. St. Rep. 834, 33 S.
E. 326.
But the city may, by some au-
§ 510]
Adverse Possession.
19;
number of states a different view obtains."" But even in
the former class of states there is a tendency to distin-
guish between land devoted to ]mh\ic use and that which
is held by the municipality in a "private capacity," and
over which it has the power of alienation, the latter be-
ing rei>:arded as subject to the bar of the statute.^^
While there are authorities to the effect that land
held by a railroad com])any for right of way purposes
is so devoted to a public use as not to be the sub-
ject of adverse possession,»» such land is. by the weight
i)f authority, so subject.*
tliorities, be estopped, by reason
of Its acquiescence in improve-
ments made on its land, to claim
title to the land; Christopherson
V. Incorporated Town Forest
City, 178 Iowa, 893, 160 N VV. 691;
Barton v. City of Portland. 74
Ore. 75. 144 Pac. 114(1; Wall v.
Salt Lake City,— Utah— . 168 Puc.
766; See Dillon, Mun. Corp., §§
1187, 1191, 1194.
97. Fort Smith v. McKibbln,
41 Ark. 45, 48 Am. Rep. 19;
Axmear v. Richards, 112 Iowa,
657. 84 N. W. 686; Covington v.
McNickles's Heirs, 18 B. Mon.
(Ky.) 262; Pastnrino v. City of
Detroit, 182 Mich. 5, 148 N. W.
231; Wayzata v. Great Northern
Ry. Co., 50 Minn. 438, 52 N. W.
913; St. Charles County v.
Powell, 22 Mo. 525. 66 Am. Dec.
637; Meyer v. City of Lincoln, 33
Neb. 566, 18 L. R. A. 146, 29
Am. St. Rep. 500, 50 N. W. 763;
Oxford Township v. Columbia, 3S
Ohio St. 87; Ostrom v. City of
San Antonio, 77 Tex. 345, 14 S.
W. 66.
98. Simplot V. Chicago M. &
St. P. Ry. Co. (C. C.) 16 Fed.
350; Ames v. City of San Diego,
101 Cal. 390, 35 Pac. 1005;
Robinson v. Lemp, 29 Idaho. 661.
161 Pac. 1024; City of Chicago
V. MIddlebrooke, 143 111. 265, 32
N. E. 457; City of Bedford v.
Willarcl. 133 Ind. 562, 36 Am.
St. Rep. 563, 33 N. E. 368; City
of New Orle;m5! v. Salmen Brick
& LumLer Co., 135 La. 828. 66 So.
237; In re Willard Parker Hos-
pital, 217 N. Y. 1, 111 N. E. 256;
Turner v. Hillsboro, 127 N. C.
153, 37 S. E. 191; Board of Super-
visors of Tazewell County v. Nor-
folk & W. R. Co., 119 Va. 763, 91
S. E. 124; GJ3tai''?son v. Dwyer,
83 Wash. 303, 145 Pac. 458, 2
Dillon, Mun. Corp. (5th Fa\.). 5
1188 et seq.
99. Southern Pac. Co. v.
Hyatt, 132 Cal. 240, 54 L. R. A.
522, 64 Pa<?. 272; McLucas v.
St. Joseph, etc.. R. Co.. 67 Neb.
603, 93 N. W. 928. 97 N. W. 312,
2 Ann Cas 715; Conwell v. Phil-
adelphia. etc., R. Co., 241 Pa.
172, 88 Atl. 417.
1. Mobile & G. R. Co. v. Hulh-
erford. 184 Ala. 204. 63 So. lOO.',:
St. Louis, etc. R. Co. v. Martin.
104 Ark. 274. 149 N. W. 69: Il-
linois Cent. R. Co. v. Houghton.
126 111. 23,^, 18 N. K. 301, 9 Am.
St. Rep. nsi. 1 L. R. A. 213;
1978 Real Peoperty. [§511
§ 511. Effect as vesting and divesting title. While
occasionally the statutes limiting the time for the bring-
ing of an action to recover land provide that a failure
to sue within the time named shall operate to transfer
the title to the person in possession, they almost in-
variably in terms bar the remedy merely. They have,
however, with few, if any, exceptions, been regarded as
operating to divest the title of the former owner and to
give title to the wrongful possessor. The theory on
which this result may be regarded as based has been
stated by a great master of the law as follows: True
property or ownership consists of possession coupled
with the unlimited right of possession, and when one
person is dispossessed by another only the right of pos-
session remains vested in the former, and the disposses-
sor has complete ownership except for this outstanding
right of possession. When the period of limitation has
run, the statute, by forbidding the exercise of this right,
virtually annihilates it, and the imperfect title there-
upon becomes perfect.^
Pittsburgh, etc. R. Co. v. Strick- session of land in the assumed
ley, 155 Ind. 312, 58 N. E. 192; character of owner and exercis-
Louisville, etc. R. Co. v. Smith, ing peaceably the ordinary rights
125 Ky. 336, 101 S. W. 317, 128 of ownership has a perfectly good
Am. St. Rep. 254; Matthews v. title against all the world but the
Lake Shore etc. R. Co., 110 Mich. rightful owner. And if the
170, 67 N. W. 1111, 64 Am. St. rightful owner does not come
Rep. 336; Northern Pac. R. Co. forward and assert his title by
V. Townsend, 84 Minn. 152, 87 Am. process of law within the period
St. Rep. 342, 86 N. JV. 1007; Pax- prescribed by the provisions of
ton V. Yazoo, etc., R. Co., 76 Miss. the statute of limitations appli-
536, 24 So. 536; Northern Pac. R. cable to the case, his right is
Co. V. Hasse, 28 Wash. 353, 68 forever extinguished and the pos-
Pac. 882, 92 Am. St. Rep. 840. sessory owner acquires an ab-
2. Professor J. B. Ames, 3 solute title." Perry v. Clissold,
Harvard Law Rev. at p. 318, App. Cas. (1907) 72.
Lectures on Legal History, 193, "Possession itself is a species
198. So it is said by the Judi- of title, of the lowest grade, it
cial Committee of the Privy Coun- is true; yet it is good against all
cil, in an opinion delivered by who cannot show a better, and
Lord Macnaghten; "It cannot be by lapse of time may become,
disputed that a person in pos- under the statute, perfect and in-
§ 511]
Ad\'eese Possession.
1979
The title being thus vested in the wrongful posses-
sor by reason of the running of the statute, it follows
that he may assert his ownership, in an action of eject-
ment or otherwise, against the whole world,^ including
the original owner,^ and a legal conveyance is necessary
in order to revest the o^\Tiorship in the latter, after the
lapse of the statutory period, a mere disclaimer of the
benefit of the statute by the wrongful possessor being
insufficient.^
A court of equity will frequently compel a pur-
chaser to accept a title acquired by adverse possession."
defeasible." White, J., in Mc-
Neally V. Langan, 22 Ohio St.
32.
3. Harpeuding v. Reformed
Protestant Dutch Church of New
York City, 16 Pet. (U. S.) 455;.
Jacks V. Chaffln, 34 Ark. 534;
McDuffee v. Sinnott, 119 III. 449,
10 N. E. 385; Sutton v. Pollard,
96 Ky. 640, 29 S. W. 637; Arm-
storn V. Risteau's Lessee, 5 Md.
256; Joseph v. Bonaparte, 118
Md. 591, 85 Atl. 962; Schock v.
Falls City, 31 Neb. 599, 48 N.
W. 468; Sherman v. Kane, 86 N.
Y. 57; Baker v. Oakwood, 123 N.
Y. 16, 10 L. R. A. 378, 25 N. E.
312; Mitchell v. Campbell, 19 Ore.
198, 24 Pac. 455; Spath v. Sales, 70
Ore. 269, 141 Pac. 160 ; Way v. Hoot-
on, 156 Pa. 8, 26 Atl. 784; Gulf, C.
& S. F. Ry. Co. V. Cusenberry,
86 Tex. 525, 26 S. W. 43; Hughes
V. Graves, 39 Vt. 359.
4. Sharon v. Tucker, 144 U.
S. 533; Jacks v. Chaffin, 34 Ark.
534; Cannon v. Stockman, 36
Cal. 535, 95 Am. Dec. 205; Goetz
V. Glos, 266 111. 238, 107 N. E.
464; Armstrong v. Risteau's
Lessee. 5 Md. 256, 59 Am. Dec.
115; Barnes v. Light. 116 N. Y.
34, 22 N. E. 441; Hall v. Hall,
27 W. Va. 468, 480.
5. Tennessee Coal I. & w. R.
Co. V. L^nn, 123 Ala. 112, 26 So.
245, 82 Am. St. Rep. 108; Todd
V. Kauffman, 8 Mackey (D. C.)
304; Illinois Cent. R. Co. v.
Wakefield, 173 111. 564, 50 N.
E. 1002; Riggs v. Riley, 113 Ind.
208, 15 N. E. 253-; Inhabitants
of School Dist. No. 4, in Win-
throp V. Benson, 31 Me. 381;
Allen V. Mansfield. 82 Mo. 688;
Towles V. Hamilton. 94 Neb. 588.
143 N. W. 935; Bell v. Adams.
81 N. C. 118; Round Mountain
Lumber & Coal Co. v. Bass, 136
Tenn.. 687, 191 S. W. 341; Bruce
V. Washington, 80 Tex. 368. l.'i
S. W. 1104; Austin v. Hailey, 37
Vt. 219, 86 Am. Dec. 703.
6. See e. tj. Tewksbury v.
Howard, 138 Ind. 103, 37 N. E.
353; Stevenson v. Polk. 71 Iowa.
278. 32 N. W. 340; Keepers v.
Yocum. 84 Kan. 554. 114 Pac.
1063; Logan v. Bull 78 Ky. 607;
Westerfield v. Cohen, 130 La. 5.33.
58 So. 175; Stewart v. Kreuzer,
127 Md. 1. 95 Atl. 1052; Conley
v. Finn, 171 Mi.ss. 70, 68 Am.
St. Rep. 399, 50 N. E. 460;
Barnard v. Brown, 112 MIoh.
452. 67 Am. St. Rep. 432. 70 N.
1980
Real PROPEPtTY.
[§ 511
and it lias been held tliat one may maintain a suit to
remove the cloud on the title thus acquired, created by
the documentary title of the original owner.'^ A title
thus acquired cannot be affected by the repeal of the
statute of limitations under which it was acquired.^
Although the effect of the statute is to divest thq
title of the former owner, and to vest title in the wrong-
ful possessor, the statute does not, it appears, trans-
fer the former title, but the wrongful possessor acquires
an entirely new title.^ Consequently the liability on
covenants does not pass to the new owner.^" But a
legal right of a proprietary character, such as an ease-
ment,^ ^ a mortgage, ^^ or presumably a right of entry,^^
W. 1038; Long v. Lackawanna
Coal & Iron Co., 233 Mo. 713, 136
S. W. 673; Pratt v. Eby, 67 Pa.
396; Miller v. Cramer, 48 S. C.
282, 26 S. E. 657; Summers v.
Hively, 78 W. Va. 53, 88 S. E.
608. Contra, Mays v. Blair, 120
Ark. 69, 179 S. W. S31; Hartley
V. James, 50 N. Y. 38. And see
Heller v. Cohen, 154 N. Y. 299,
48 N. E. 527; Adkins v. Gillespie,
—Tex.—, 189 S. W. 275.
7. Pendleton v. Alexander, 8
Cranch, 462; Clemmons v. Cox,
116 Ala. 567, 23 So. 79; Arring-
ton V. Liscom, 34 Cal. 365; Mick-
ey V. Barton 194 111. 446, 62 N. E.
802; Cramer v. Clow, 81 Iowa,
255, 9 L. R. A. 772, 47 N. W. 59;
Proprietors of Jeffries Neck Pas-
ture V. Inhabitants of Ipswich,
153 Mass. 42, 26 N. E. 239; Pence
V. Miller, 140 Mich. 205, 103 N.
W. 582; Dean v. Goddard, 55
Minn. 290, 56 N. W. 1060; Web-
ster V. City of Lincoln, 56 Neb.
502, 76 N. W. 1076; Nash v.
Northwest Land Co. 15 N. Dak.
566, 108 N. W. 792; Hamilton v.
Fluornoy, 44 Ore. 97, 74 Pac. 483;
Hatch V. Lusignan, 117 Wis. 428,
94 N. W. 332. Contra, McCoy v.
Johnson, 70 Md. 490, 17 Atl. 387;
Contee v. Lyon, 19 D. C. 207;
Miller v. Robertson, 35 Can. Sup.
Ct. 80.
8. Sharp v. Blankenship, 59
Cal. 288; Bowen v. Preston, 48
Ind. 367; Trim v. McPherson, 7
Cold. (Tenn.) 15; Grigsby v.
Peak, 57 Tex. 142; Sprecker v.
Wakely, 11 Wis. 432. See Camp-
bell V. Holt, 115 U. S. 620, 29 L.
Ed. 483.
9. Price v. Lyon, 14 Conn.
291; Tichborne v. Weir, 67 Law
Times (N. S.) 735; Coal Creek
Consol. Coal Co. v. East Ten-
nessee Iron & Coal Co., 105 Tenn.
563, 59 S. W. 634.
10. Tichborne v. Weir, 67 Law
Times (N. S.) 735.
11. Re Nisbett & Potts (1905)
1 Ch. 391, (1906) 1 Ch. 386; Re-
formed Church V. Schoolcraft,
65 N. Y. 134.
12. Fletcher v. Bird, Fisher
on Mortgages, Appendix.
13. See Banning, Limitations
84, 85.
§ 511] Adverse Possession. 1981
can be enforced against the land in the hands of its
new owner as of the old, the statute operating to bar
only the j^erson M'ho was entitled to sue on account of
the wrongful possession,
Chiaracter of estate. The question of the
character of the estate acquired by the wrongful
possessor is, in some cases, one of considerable diffi-
culty. The common-law rule was that one who dis-
seised another acquired an estate in fee simple, ^^ and
this regardless of whether he claimed a less estate, ^°
since "wrong is unlimited and ravens all that can be
gotten, "^'^ and one cannot qualify his own wrong.^" The
only case in which one who dispossessed another appears
not to have acquired a wrongful fee simple was when
there was an existing particular estate, and the dis-
possessor claimed merely such particular estate.'** And
in such a case, if the particular estate was of a chattel
character, there was no disseisin, but only a disposses-
sion. Apart from this single case of an existing particular
estate and a claim by the dispossessor restricted thereto,
it appears that the effect of a wrongful dispossession
as constituting a disseisin and as so conferring an es-
tate in fee simple by wrong was, and presumably is,'"
absolutely independent of the character of the estate
claimed by the dispossessor, or of whether he makes any
claim. The statement occasionally made by American
judges and writers, that a claim of a fee simjile,^''^ or
14. Litt, § 519; Pollock & 19. See Wniianis, Seisin, 7,
Wright, Possession, 94; Watkins, quoted by Professor J. B. Ames,
Conveyancing (7th Ed.) 78. 3 Harv. Law Rev. at p. ;^23;
15. See citations, ante § 504, Lectures on Legal History, at p.
note 65. 173; T. Cyprian Williams, Esq.,
16. Hobart 323. in 51 Solicitors' Journal, p. 143.
17. Co. Litt. 271a. 20. Rlcard v. Williams, 7
18. Co. Litt 271a and Butler's Wheat. (U. S.) 59, at p. 107, 6
note; 2 Preston, Conveyancing, L. Ed. 221, per Story, .1.; Bedell
321; 2 Preston, Abstracts of Title, v. Shaw, 59 N. Y. 46; Bond v.
293. O'Gara, 177 Mass. 139, 83 Am.
2 R. P.— 50
1982 Real Peoperty. [^ 511
of a freeliold,^^ estate is necessary to a disseisin is, it
is respectfully submitted, without support in the
older^books.
From what has been said in the preceding para-
graph, it appears that the effect of a dispossession, as
conferring a w^'ongful title in fee simple upon the
disseisor, is ordinarily independent of whether the per-
son actually dispossessed was a tenant in fee simple
or merely a particular tenant, such as a tenant for life
or years, the only exception being when the disposses-
sor claims merely as against the particular tenant. He
has a fee simple title, good as against everybody ex-
cept the particular tenant whom he has dispossessed
and the reversioner or remainderman. After the statute
has run against the former, he has a fee simple title
good as against everybody except the latter, and if he
retains possession for the statutory period after a right
of action has accrued to the remainderman or rever-
sioner, his fee simple title becomes valid as against
everybody.-^ A different view as to the operation of
the statute of limitations in such a case has, however,
been suggested, that the dispossessor acquires success-
ively, by the running of the statutory period against the
successive tenants, an estate equal in quantum to the
estate of each tenant,^^ that, for instance, if A is tenant
for life, with remainder to B for life, with remainder to
C in fee simple, and A is wrongfully dispossessed, the
wrongful possessor would acquire, by the completion of
the statutory period during A's life, an estate for the
life of A, by the completion of such period after A's
death and during B's life, an estate for the life of B, and
St. Refp. 265, 58 N. E. 275, per 270; Dart, Vendors & Purchasers
Holmes, C J.; editorial note 12 (6th Ed.) 464; Lightwood, Pos-
Columbia Law Rev. 364. session of Land, 275, and is in-
21. Editorial notes, 5 Columbia dicated in Tichborne v. Weir, 67
Law Rev. 605; 22 Harv. Law Rev. Law Times (N. S.) 735.
139. 23. This view is favored in
22. This view is asserted in Rankin v. McMurtry, 24 L. R.
1 Hayes, Conveyancing (5th Ed.) Ir. 297.
§ 511] Adverse Possession. 1983
by the completion of such period after B's death, an
estate in fee simple. The former theory would seem to
be preferable from the standpoint of principle, and is
certainly more in accord with the common law decisions
upon the effect of disseisin.
In case one makes, without authority, a lease of
another's land, the question whether the lessee will
acquire the fee simple title by the lapse of the statutory
period, would seem ordinarily to depend on whether the
lease was in the name of the true owner. If it was in
such owner's name, the lessee's possession is not hos-
tile to such owner, an}^ more than if the lease had been
made by the latter, while if it is not in the true o\\Tier's
name the lessee's possession would ordinarily be hostile
to the latter, the case being that, before referred to,^*
of adverse possession by a tenant in behalf of liis land-
lord.^^ In neither case, it is conceived, should the fact
that the possession purported to be under a lease for
years have the effect of carving out of the fee simple an
estate for years in favor of the possessor.-''
24. Ante, § 501, note 30. version or remainder, and a par-
25. But it has been decided in ticular estate cannot be created by
New York (Bedell v. Shaw, 59 claim or entry." 2 Preston, Ab.
N. Y. 46; Sanders v. Riedinger, stracts of Title, 293. But in
30 N. Y. App. Div. 277, 51 N. Y. several Mississippi cases it Is
Supp. 937, 164 N. Y. 564, 58 N. decided that if one enters under
E. 1092) that one entering under an invalid lease, made without
an invalid "tax lease" did not authority in the name of the
acquire adverse possession as county for a term of ninety-nine
against the owner, for the reason years, possession by the lessee
that he asserted no claim to the for the statutory period sives
fee. See ante, this section, note him a right to retain possession
20. until the end of the term. See
26. "If a man enter claiming Brown v. Isaquena County Super-
a particular estate, when in point visors, 54 Miss. 2.50; Jones v.
of fact there is not any such Madison County, 72 Miss. 777, 18
estate, then the disseisin is, of So. 87; Warren County v. Lanil)-
necessity, of the fee; for In kin, 93 Miss 123, 22 L. R. A. (N.
things in esse there cannot be a S.) 920, 46 So. 497. See note
particular estate without a re- in 22 Ilarv. Law itev. 138.
1984 Real Peofeety. [§ 511
As vesting title in third person. Reference
has before been made to the case of a hostile entry on
land under the mistaken impression that it belongs to
the government, in which case, by the weight of author-
ity, the statute runs against the rightful owner.^''' The
question then arises whether the statutory bar operates
to vest the title in the person in possession or in the
government, and this appears to depend primarily on
whether he is to be regarded as holding on behalf of
the government, or on his own behalf, the reasonable
presumption being that he- holds in his own behalf.^*
And even though he takes and holds possession in be-
half of the government, a wrongful estate cannot be
regarded as vested in the government, for the purpose
of being perfected by the statute of limitations, unless
the government in some way indicates its assent thereto,
the case being in effect that of a disseisin to the use of
another, which does not give a freehold to the other
until the other agrees.^^
As vesting title in remainderman. Although,
as above stated,^*' according to the common law authori-
ties, a disseisin has the effect of conferring a fee simple,
except in the single case when there previously existed
a particular estate, and the disseisor claims such partic-
ular estate only, it may occur, according to modern
decisions, that the fee simple is conferred on a person
other than the person in wrongful possession, by reason
of the fact that the person in possession entered under
an instrument which purported to give him a life estate
only, with remainder in favor of such other. There
are several decisions to the effect that if one having no
title undertakes to convey or devise particular land to A
for life with remainder in fee simple to another, and A
27. Ante, § 504, note 82. Disseisin (E) (G); Bacon's Abr.
28. See editorial notes, 14 Disseisin (A).
Harvard Law Rev. 374, 18 Id. 30. Ante, tliis section, notes
380. 14-18.
29. Co. Litt. 180b; Viner's Abr.
^ 511] Advebse Possession.
1985
enters, and the statutory period expires with him in
possession, the statute runs in favor not only of A but
also of the remainderman named.^i In other words, in
such a case, the wrongful estate in fee simple is gained
for the remainderman and not for the life tenant. This
view has been based upon the theory of estoppel, and
the case has been assimilated to that of the estoppel of
a tenant to deny the title of the lessor.^^ Applying-
such an analogy, the idea would seem to be that" the
intended life tenant, having acquired possession by
force of the devise or conveyance, as a lessee acquires
possession by force of the lease, he, and those in privity
with him, are precluded from asserting, as against any
person, such as the remainderman, who is in privity
with the testator or grantor, that the title in fee was at
the time outstanding in another, and was so capable of
being acquired by the intended life tenant by force of
the statute of limitations. In this country' the same
result has been held to follow in the case of a convey-
ance or devise to one for life with remainder to an-
other in fee simple, when the conveyance or devise was
invalid or inoperative as regards the particular proji-
erty, not by reason of lack of title in the grantor or
testator, but for some other reason.''^ In England, on
the other hand, the estoppel has not been applied in such
case as against the intended life tenant, for the i-easoii,
apparently, that the asserted remainderman cannot be
regarded as in privity with the grantor or testator, and
is consequently unable to assert the estoppel.-''"' The
31. Board v. Board, L. R. 9 where the will was voidable and
Q. B. 48; Reynolds v. Trawick, not void. Compare 28 Yale Law
— Ala.—, 78 So. 827; Charles v. Journ., p. 2.'.4, remarks of Pro-
Pickens, 214 Mo. 212, 24 L. R. A. fessor Ballantine.
(N. S.) 1055, 112 S. W 551. 33a. Dalton v. Fitzgerald.
32. Board v. Board, L. R. 9 Q. (1897), 1 Ch. 87; Palno v. Jones,
B. 48, per Blackburn, J. L. R. 18 Eq. 320; /Jyj StriuRcrg
33. Hanson v. Johnson, 62 Ind. Estate, 6 Ch. U. 1; In re Ander-
25, 50 Am. Rep. 199; Anderson son (1905), 2 Ch, 70; In re Ten-
V. Rhodes, 12 Rich. Eq. 104. See nent's Estate (1913), 1 Ir. 280.
Brown v. Brown, 82 Tenn. 253,
1986 Real Property. [§ 511
English view, rather than that asserted in this country,
harmonizes with the common law rule that a disseisin
does not operate to create a i>articular estate. In
order, however, that the estopiDel operate in any case in
favor of the person named as remainderman, it would
seem to be necessary, as a recent writer has well
pointed out,^^^ that the grantor or testator have been
himself in possession, since if he was not in possession,
there was nothing which could be regarded as passing
by the conveyance or devise, so as to create a piivity in
the remainderman named.
As between husband and wife. In case both
husband and wife are upon the land belonging to a
third person, and the wife alone has color of title, the
statute, it appears, will run in her favor rather than in
favor of the husband, that is, the possession will be
presumed to accord with the color of title.^^
As against bona fide purchaser. One who
acquires title by adverse possession for the statu-
tory period may, it has been decided, assert
such title as against a bona fide purchaser of the record
title, although such adverse possessor had relinquished
possession previous to the sale.^^ The recording acts
protect a bona fide purchaser only as against a prior
33b, Article by Professor 117 Wis. 428, 94 N. W. 332.
Henry Winthrop Ballantine, 28 And See Collins v. Lynch, 157
Yale Law Journ. at pp. 224-235. Pa. St. 246, 37 Am. St. Rep. 723,
This appears to be recognized 27 Atl. 721.
by Jessel, M. R. in Re Stringer's 35. Faloon v. Simhauser, 130
Estate, 6 Ch. D. 1. 111. 649, 22 N. E. 835; Schall
34. McLeod v. Bishop, 110 Ala. v. Williams Valley R. Co., 35 Pa.
640, 20 So. 130; Clark v. Gilbert, St. 191; MacGregor v. Thompson,
39 Conn. .96; Meraman v. Cald- 7 Tex. Civ. App. 32, 26 S. W. 649;
■well, 8 B. Mon. (Ky.) 32; Potter East Texas Land etc. Co. v.
V. Adams, 125 Mo. 118, 46 Am. Shelby, 17 Tex. Civ. App. 685,
St. Rep. 478, 28 S. W. 490; Tem- 41 S. W. 542; Winters v. Powell,
pleton V. Twitty, 88 Tenn. 595, 14 180 Ala. 425, 61 So. 96 isemble).
S. W. 435; Holton v. Whitney, See Ridgeway v. Holliday, 59 Mo.
30 Vt. 405; Hatch v. Lusignan, 444.
§ 512] Adverse Possessiox. 1987
instrument which might have been, but was not, re-
corcled,^*" and there is no obligation upon one Nvho has
acquired title by adverse possession to retain the pos-
session in order to charge a subsequent purchaser with
notice of his rights. But if one in wrongful possession
of land, before the end of the limitation period, obtains
a conveyance from the true owner, his possession should
thereafter, it seems, be regarded as based on the con
veyance, so that, if he fails to record it, a subsequent
hona fide purchaser will acquire a superior title al-
though, if the person in possession had not received the
conveyance from the true owner, he would, by tlie
running of the statute of limitations, have acquired a
title superior to that of the subsequent hona fide \mv-
chaser.^' Having obtained a deed from the rightful
owner, his possession ceases to be wrongful, and the
statute runs only in favor of a wrongful possession.
§ 512. Extent of possession. As a general rule,
one can acquire by adverse possession so great an
extent of land only as is covered by his acts of actual
posses,sion, continued through the statutory period.^^** It
is, however, a well-recognized doctrine in this country
that one having "color of title" that is, claiming under
what purports to be a valid muniment of title, al-
though he actually occupies a part only of the tract
covered by his muniment of title, is to be regarded as
in possession of the whole tract for the purpose of
barring the entry of the owner after the lapse of 1 1n-
statutory period, *' constructive possession," ns it is
usually termed, of the part not actually occupied hv
36. Post § 567. 915; Garrison v. Sampson, 15
37. See editorial note, 26 Harv. Cal. 93; Mattes v. Hall, 21 Cal.
Law Rev. 762, criticizing Winters App. 552, 132 Pac. 295; Roberts
V. Powell, 180 Ala. 425, 61 So. T. Merwin, 80 Conn. 347, 6S
96. Atl." 377; Tillman v. Bomar, 1.34
38. Bowles v. Lowery, 181 Ala. Ga. 660, 68 S. E. 504; Bristol.
603, 62 So. 107; Langhorst v. v. Carroll County. 95 111. 84:
Rogers, 88 Ark. 318, 114 S. W. Meade v. Ratliff. 133 Ky. 411. i:t4
1988
Real Peopekty.
[§ 512
him. As a result of this doctrine, the owner of land
who fails to assert his rights within the statutory period
as against one in adverse possession of part may be
deprived of the whole of the tract, although he had no
reason to suppose that the adverse possession was under
color of title.
The doctrine referred to applies not only when pos-
session is taken under a conveyance which is invalid,
either for want of title or capacity in the grantor, or
for w^ant of proper formalities in the execution of the
instrument,"'^ but also when it is taken under a void or
voidable decree of court,^'' and generally when there
is what is known as a ''paper title." There is, how-
ever, considerable question as to whether a conveyance
void on its face constitutes "color of title" for this
purpose, or for the purpose of the short limitation
acts.^^ A conveyance which does not contain anv suf-
Am. St. Rep. 467, 118 S. W. 271;
Proprietors of Kennebeck Pur-
chase V. Springer, 4 Mass. 416;
Barber v. Robinson, 78 Minn.
193, 80 N. W. 968; Allen v. Mans-
field, 108 Mo. 343, 18 S. W. 901;
Anderson v. Meadows, 162 N. C.
400, 78 S. E. 279; Humphries v.
Huffman, 33 Ohio St. 395; Lars
V. Smith, 63 Ore. 206, 127 Pac.
26: Ege v. Medlar, 82 Pa. St. 86;
Langdon v. Templeton, 66 Vt.
173, 28 Atl. 866.
39. Wright v. Mattison, 18
How. (U. S.) 50, 15 L. Ed. 280;
Carter v. Chevalier, 108 Ala. 563,
19 So. 798; Noyes v. Dyer, 25
Me. 468; Hecock v. Van Dusen,
80 Mich. 359, 45 N. W. 343;
Miesen v. Canfleld, 64 Minn. 513,
67 N. W. 632; Fugate v. Pierce,
49 Mo. 447; Ellington v. Elling-
.ton, 103 N. C. 54, 9 S. E. 208;
Swift V. Mulkey, 17 Ore. 532, 21
Pac. 871; Stull v. Rich Patch
Iron Co., 92 Va. 253, 23 S. E.
293.
40. Reedy v. Camfield, 159 111.
254, 42 N. E. 833, Jones v
Thomas, 124 Mo. 586, 24 S. W.
76; Bynum v. Thompson, 25 N.
C. 578. See Brind v. Gregory,
120 Cal. 640, 53 Pac. 25; Salter
V. Salter, 80 Ga. 178, 12 Am.
St. Rep. 249, 4 S. E. 391; Wright
V. Stice, 172 111. 571, 51 N. E. 71.
41. That a conveyance void on
its face does not give color of
title, see Redfield v. Parks, 132
U. S. 239, 33 L. Ed. 327; Larkin
V. Wilson, 28 Kan. 513; Frique
V. Hopkins, 8 Mart. (La.) 110;
Fitschen v. Olsen, 155 Mich. 320,
119 N. W. 3; Wafford v. McKinna,
23 Tex. 36, 76 Am. Dec. 53;
Matthews v. Blake, 16 Wyo. 116,
27 L. R. A. 339, 92 Pac. 242.
Contra. Reddick v. Long, 124
Ala. 260, 27 So. 402; Wilson v.
Atkinson, 77 Cal. 485, 11 Am. St.
§ 512]
Adverse Possession.
1989
ficient description of the land sought to be conveyed is
necessarily insufficient as color of title for the' pur-
pose of constructive possession.^-
According to some decisions this doctrine of con-
structive possession is not applicable unless the person
seeking to avail himself thereof acquired the color of
title in the honest belief that the instrument was ef-
fective for the purpose of passing title-*-' and further-
more fraud on his part in its acquisition has been re-
garded as depriving him of the right to assert the
doctrine.^* It is not clearly apparent why the effect of
the instrument as showing a constructive possession
greater than the actual possession should be regarded as
dependent on the existence of a belief in its validitv
or a lack of fraud in its acquisition.''^
Rep. 299, 20 Pac. 66; Barger v.
Hobbs, 67 111. 592; Miesen v.
Canfield, 64 Minn. 513, 67 N. W.
632; Power v. Kitching, 10 N. D.
254, 88 Am. St. Rep. 729, 86 N.
W. 737.
The view is sometimes taken
that a conveyance defective on
its face will be sufficient as
color of title provided only the
defect is such that a person un-
learned in the law would have
reason to consider the instru-
ment valid. Bloom v. Strauss,
70 Ark. 483, 69 S. W. 548, 72
S. W. 563; De Foresta v. Cast,
20 Cal. 307, 38 Pac. 244; Beverly
v. Burke, 9 Ga. 443. 54 Am. Deo.
351; Ipock V. Gaskins, 161 N.
C. 673, 77 S. E. 843; Burns v.
Stewart, 162 N. C. 360, 78 S. E.
321.
42. Reddick v. Long. 124 Ala.
260; 27 So. 402; Ohio & M. Ry.
Co. V. Barker, 125 111. 303, 17 N.
E. 797; Bellows v. Jewell. 60 N.
H. 420; Jackson v. Woodruff, 1
Cow. (N. Y.) 276, 13 Am. Dec.
525; Davis v. Stroud, 104 N. C.
484, 10 S. E. 666; Humphries v.
Huffman, 33 Ohio St. 395; Ege v.
Medlar, 82 Pa. St. 86; Garvin v.
Garvin, 40 S. C. 435, 19 S. E. 74;
Bassett v. Martin, 83 Tex. 339,
18 S. W. 587; Blakey v. Morris,
89 Va. 717, 17 S. E. 126.
43. Walsh V. Hill, 38 Cal. 481;
Reay v. Butler, 95 Cal. 206, 30
Pac. 208; Lee v. O'Quin. 103 Ga.
355, 30 S. E. 356; Godfrey v.
Dixon Power & Lighting Co.,
228 111. 487. 81 N. E. 1089; Smith
V. Young, 89 Iowa, 338, 56 N. W.
506; Foil Ike v. Bond, 41 N. J. L.
527; Ege v. Medlar, 82 Pa. St.
86; Texas Land Co. v. WHliams.
51 Tex. 51; Gregg v. Sayre, 8
Pet. (U. S.) 244, 25;{, 8 L. Ed.
932.
44. Miller v. Rich, 204 III.
444, 68 N. E. 4S8.
45. See editorial note 23 Harv.
Law Rev. at p. 57.
1990 Real Peopeety. [§ 512
In order that this doctrine, giving one constructive
possession beyond the limits of his actual occupancy,
may apply, the part of the land not actually occupied
by him, and the part occupied, must belong to the same
person, and the owner of land is not affected with notice
as of a constructive possession of his land by the fact
that it is included in a conveyance with other land not
belonging to him, if such other land alone is occupied
by the claimant.^^ Were the rule otherwise, the owner
of land might be deprived thereof by force of the
statute of limitations, although no part was in the pos-
session of another, and there was consequently no
reason for asserting his title.
The fact that the true owner is in actual possession
of part of his land prevents the application, in favor of
another, of the doctrine of constructive possession by
color of title as to the land not occupied by either.^^
In such case the constructive possession of the true
owner takes precedence over the constructive possession
46. Henry v. Brown, 143 Ala. Coal Creek Min. Co. v. Heck,
446, 39 So. 325; Hurdie v. In- 15 Lea (Tenn.) 497; Daniel v.
, vestment Guaranty etc. Co., 81 Dayton Coal & Iron Co., 132 Tenn.
Ark. 141, 98 S. W. 701; KimbaU 501, 178 S. W. 1187; Word v. Box,
V. Stormer, 65 Cal. 116, 3 Pac. 66 Tex. 596, 3 S. W. 93; Green v.
408; Wheatley v. San Pedro, L. Pennington, 105 Va. 801, 54 S. E.
A. & S. L. R. Co., 169 Cal. 505, 877; Robinson v. Lowe, 66 W. Va.
147 Pac. 135; Tennis Coal Co. v. 665, 66 S. E. 1001.
Sackett, 172 Ky. 729, Ann. Cas. 47. Hunnicutt v. Peyton, 102
1917E, 629, 190 S. W. 130; Walsh U. S. 333, 26 L. Ed. 113; Semple
V. Wheelwright, 96 Me. 174, 52 v. Cook, 50 Cal. 26; Wilkins v.
Atl. 649; Turner v. Stephenson, Pensacola City Co., 36 Fla. 36,
72 Mich. 409, 2 L. R. A. 277, 40 18 So. 20; Harriss v. Howard,
N. W. 735; Leavenworth v. 126 Ga. 325, 55 S. E. 59; Peoria
Reeves, 106 Miss. 722, 64 So. 660; etc. R. Co. v. Tamplin, 156 111.
Bailey v. Carleton, 12 N. H. 9, 285, 40 N. E. 960; Hopson v.
37 Am. Dec. 190; Schmitt v. Cunningham, 161 Ky. 160, 170 S.
Traphagen, 73 N. J. Eq. 399, 133 W. 522; Stearns Coal & Lumber
Am. St. Rep. 739, 69 Atl. 189; Co. v. Boyatt, 168 Ky. Ill, 181
Lewis V. Covington, 130 N. C. 541, S. W. 962; Schlossnagle v. Kolb,
41 S. E. 677; Hicklin v. McClear, 97 Md. 285, 54 Atl. 1006: Bellis
18 Ore. 126, 22 Pac. 1057; Hole v. Bellis, 122 Mass. 414; Bradley
v. Rittenhouse, 25 Pa. St. 491; v. West, 60 Mo. 33; Benne v.
§ 512 J
Adverse Possession,
1991
of the trespasser.^^ And, in spite of occasional state-
ments to the contrary,^^ this would seem to be so, regard-
less of whether the constructive possession of the
tresjDasser commenced before or after the constructive
possession of the true owner.^*^
The land in actual possession must adjoin that of
which Qonstructive possession is claimed,^^ and they
must, according to some decisions, be included within
one description in the instrument under which the
claim is made, and, if they are described or referred to
as separate tracts or lots, it is immaterial that they are
both included in one conveyance. ^^ Occasionallv the
Miller, 149 Mo. 228, 50 S. W. 824;
Schmitt V. Traphagen, 73 N. J.
Eq. 399, 133 Am. St. Rep. 739, 69
Atl. 189; Hall v. Powel, 4 Serg.
& R. (Pa.) 456, 8 Am. Dec. 722;
Eenneker v. Warren, 17 S. C.
139; Sequatchie & South Pitts-
burg Coal & Iron Co. v. Tennessee
Coal, Iron & RaUroad Co., 131
Tenn. 221, 174 S. W. 1122; Jones
V. Coal Creek Min. & Mfg. Co.,
133 Tenn. 183, 180 S. W. 991;
Claiborne v. Elkins, 79 Tex. 380,
15 S. W. 395; Langdon v. Temple-
ton, 66 Vt. 173, 28 Atl. 866; Fry
V. Stowers, 98 Va. 417, 36 S. E.
482.
48. But in North Carolina the
constructive possession of the
true owner is denied this effect.
McLean v. Smith, 106 N. C. 172,
11 S. E. 184; Currie v. Gil-
christ, 147 N. C. 648, 61 S. E.
146; Simmons v. Defrance Fox
Co., 153 N. C. 261, 69 S. E. 146
49. Fox V. Hinton, 4 Bibb.
(Ky.) 55; Kentucky Land & Im-
migration Co. V. Reynolds, 22
Ky. L. Rep. 1389. 60 S. W. 635:
Richie v. Owsley, 143 Ky. 1, 135
S. W. 439; Miniard v. Napier. 167
Ky. 208, 180 S. W. .363; Stull v.
Rich Patch Iron Co., 92 Va. 253,
23 S. E. 293; Garrett v. Ramsey.
26 W. Va. 345, 360 idictu7n).
50. Hunnicutt v. Peyton, 102
U. S. 333, 26 L. Ed. 113; Semple
V. Cook, 50 Cal. 26; Altemus v.
Long, 4 Pa. St. 254, 45 Am. Dec.
688; Ament v. Wolf, 33 Pa. St.
331; Creech v. Jones, 5 Sneed
(Tenn.) 631; Evitts v. Roth, 61
Tex. 81; Combes v. Stringer, 106
Tex. 427, 167 S. W. 217. See
note 6 Columbia Law Rev. 583.
51. Brown v. Bocquin, 57 Ark.
97, 20 S. W. 813; Georgia Pine
Inv. & Mfg. Co. V. Holton, 94 Ga.
551, 20 S. E. 434; Stephenson v.
Doe, 8 Blackf. (Ind.) 508. 46 .4m.
Dec. 489; Louisville Property Co.
V. Lawson, 156 Ky. 288. 160 S. W.
1034; Farrar v. Eastman, 10 Me.
191; Herbst v. Merrifield. 133 Mo.
267. 34 S. W. 571; Wilson v.
McEwan, 7 Ore. 85. Lands have
been held to he contiguous within
this requirement wlion inoroly
a corner of one coincides with
a corner of the other. Parsons
v. Dlls, 172 Ky. 774. Ann. Cas.
191SE. 796. 189 S. W. 1158.
52. Grimes v. Ragland. 28 Ga.
123; Rnwe v. TTenderson Navnl
1992
Real Property.
[§ 512
criteriou in this regard has been stated to be whether
the instrument shows that the two pieces adjoin one
another.^^
In some states there is a restriction upon the ap-
plication of the rule of constructive possession, to the
effect that it will apply only when the land claimed
by reason of constructive possession is such, in char-
acter and extent, that its use in connection with the
land actually occupied would be in accord with the cus-
tom of the country.'^^ In other states no such restriction
upon the application of the rule is recognized, it being
only necessary that the actual possession be of a visible
character, however small it may he in extent in com-
parison with the land claimed.^^
stores Co., 143 Ga. 756, 85 S. E.
917; Hornblower v. Banton, 103
Me. 375, 125 Am. St. Rep. 300,
69 Atl. 568; Morris v. McClary,
43 Minn. 346, 46 N. W. 238;
Den d. Carson v. Mills, 18 N. C.
546, 30 Am. Dec. 143; Doe d.
Laflin v. Cobb, 46 N. C. 406, 62
Am. Dec. 173; Willamette Real
Estate Co. v. Hendrix, 28 Ore.
485, 52 Am. St. Rep. 800, 42 Pac.
514; Camp v. Riddle, 128 Tenn.
294, Ann Cas. 1915C, 145, 160 S.
W. 844; Montgomery v. Gunther,
81 Tex. 320, 16 S. W. 1073. Contra,
Johnson v. Simerly, 90 Ga. 612,
16 S. E. 951; Dills v. Hubbard, 21
111. 328; Parsons v. Dills, 159
Ky. 471, 167 S. W. 415, 172 Ky.
774, Ann. Cas. 1918E, 796, 189 S.
W. 1158; Broiigher v. Stone, 72
Miss. 647, 17 So. 509; Roller v.
Armentrout, 118 Va. 173, 86 S.
E. 906; Webb v. Richardson, 42
Vt. 465.
53. Griffin v. Lee, 90 Ga. 224,
15 S. E. 810; Den d. Carson v.
Mills, 18 N. C. 546, 30 Am. Dec.
143.
54. Louisville etc. R. Co. v.
Gulf of Mexico Land etc. Co., 82
Miss. 188, 33 So. 845, 100 Am. St.
Rep. 627; Jackson v. Woodruff, 1
Cow. (N. Y.) 276; Simpson v.
Downing, 23 Wend. (N. Y.) 316;
Thompson v. Burhans, 61 N. Y.
52; Paine v. Hutchins, 49 Vt. 314;
Pepper v. O'Dowd, 39 Wis. 538
(statute). See Zirngibl v.
Calumet & C. Canal & Dock Co.,
157 111. 430, 42 N. E, 431; Turner
V. Stephenson, 72 Mich. 409, 2 L.
R. A. 277, 40 N. W. 735; Murphy
V. Doyle, 37 Minn. 113, 33 N. W.
220; Chandler v. Spear, 22 Vt.
388.
55. Marietta Fertilizer Co. v.
Blair, 173 Ala. 524, 56 So. 131;
Hicks V. Coleman, 25 Cal. 122,
85 Am. Dec. 103; Furgerson v.
Bagley, 95 Ga. 516, 20 S. E. 241;
Taliaferro v. Butler, 77 Tex. 578,
14 S. W. 191. See 6 Columbia
Law Rev. 5S3, for a criticism of
the New York rule. See also
Doe d. Lenoir v. South, 32 N. Car.
237.
§ 512] Adverse Possession. 1993
AVlien a person having color of title to a tract of
land conveys a part of such tract to another, who takes
possession of that part and no more, such possession
of a part by the grantee is not equivalent to possession
by the grantor, for the purpose of giving the latter
constructive possession of the balance. ^"^ But if the
person having color of title to a tract makes a lease of
part of the tract, and the lessee takes possession of
that part, the possession of the lessee in behalf of the
lessor \vill, by the weight of authority, be regarded as
extending to the whole tract.^'''
Minerals in the land. The question has quite
frequently arisen, under what circumstances does the
statute of limitations run as regards rights in minerals
beneath the surface of land. There exists in this con-
nection a primary distinction between the case in which
the ownershij) of the surface of the land is not already
separated from that of the minerals, and that in Avhicli
it is so separated.
If one person owns both the surface of the land
and the minerals thereunder, and another takes wrong-
ful possession of the surface, his actual possession of
the surface is ordinarily extended by construction to
56. Trotter v. Cassaday, 3 A. 1066); Knorr v. Raymond, 73 Ga.
K. Marsh, 365, 13 Am. Dec. 183; 749; Williams v. Ballance, 23 111.
Cochran v. Linville Imp. Co., 127 193, 74 Am. Dec. 187; Murphy v.
N. Car. 386, 37 S. E. 496; Jones Comm. 187 Mass. 361, 73 N. E. 524
V. Chiles, 2 Dana (Ky.) 25; Wil- (semble) ; Heinemann v. Bennett,
lamette Real Estate Co. v. Hen- 144 Mo. 113, 45 S. W. 1092; Ruf-
drix, 28 Ore. 485, 42 Pac. 514, fin v. Overby, 105 N. C. 78, 11 S.
52 Am. St. Rep. 800; Chandler E. 251; Cochran v. Linville Imp.
Rushing, 38 Tex. 591; Sharpe v. Co., 127 N. C. 386, 37 N. E. 496;
Shenandoah Furnace Co., 100 Bowles v. Brlce, 66 Tex. 724. 2
Va. 27, 40 S. E. 103. S. W. 729. Contra, MaasenKill
57. Zundel v. Baldwin, 114 Ala. v. Bayles, 11 Humph. (Tenn.)
328, 21 So. 420; Wheeler v. Foote, lU; Texas Land Co. v. Williams.
80 Ark. 485, 97 S. W. 447 (dis- 51 Tex. 61; Walker v. Knox,
tinguished in .Tohnson & Burr v. -Tex. Civ. App.— , 191 S. W.
Elder, 92 Ark. :'.n, I'/l S. W. 730.
1994 Real Propeety. [^ 512
the minerals beneath the surface, ^^ and if the statute
runs against the rightful owner as regards the surface
it also runs as regards the minerals. ^^ It has been
decided that the running of the statute in such case as
regards the minerals is not aifected by the fact that
the wrongful possessor undertakes to convey the miner-
als alone to another, who does not take possession, the
continued possession of the surface by the grantor in
such case being regarded as extending to the minerals
in behalf of the grantee.^*^ And conversely it was held
in the same state that if one who had taken wrongful
possession of the land conveyed the surface, retaining
the minerals, the subsequent possession of the surface
by the grantee extended to the minerals in behalf of
the grantor.^^*^ But the wrongful possession of the
surface does not extend by construction to the minerals,
if the possession was originally taken under color of
a conveyance which expressly excepted the minerals.^ ^
And it has been decided that, when a company was min-
ing part of the minerals contained in a tract belonging
to it, but not that part of the minerals beneath the
portion of the surface of which defendant had wrongful
possession, defendant, by the lapse of the statutory
period, although he acquired title to the portion of the
surface of which he had possession, did not acquire
title to the minerals beneath such portion of the sur-
face, he having been fully informed as to the operations
58. See Armstrong v. Caldwell, however, overruled by Northcut
53 N. Y. 284; editorial note 10 v. Church, 135 Tenn. 541, 188 S.
Columbia Law Rev. 70. W. 220.
59. Baker v. Clark, 128 Cal. 60a. Moore v. Empire Land
181, 60 Pac. 677; Davis v. Shep- Co., Ala., 61 So. 940. See editor-
herd, 31 Colo. 141, 72 Pac. 57; ial notes 24 Harv. Law Rev. 582,
Bradley v. Johnson. 11 Idaho. 689, 27 Id. 173.
83 Pac. 927. 61. Louisville v. Nashville R.
60. Black Warrior Coal Co. v. Co., 136 Ala. 156, 96 Am. St. Rep.
West, 170 Ala. 346, 54 So. 200; 17, 33 So. 896. See editorial note
McBurney v. Glenmary Coal & 10 Columbia Law Rev. 70, and
Coke Co., 121 Tenn. 275, 118 S. cases cited, post, note 64.
W. 220. The latter case was.
§ 512] Adverse Possession". 1995
of the company, and that, by such operations, the com-
pany had in effect made a severance of the minerals
from the surface, analogous to the severance or separa-
tion of ownership referred to in the next parag-raph.'"'-
This theory of severance by the working of the mineral
deposits is somewhat obscure, and the same result
might, it is submitted, have been attained on the theory,
above referred to, that actual possession is not ex-
tended by construction as against the rightful owner in
possession of part of his land.
If the ownership of the minerals becomes separated
from that of the surface, the subsequent^^ possession of
the surface owner is not regarded as extending to the
minerals, so as to give him title thereto under the
statute, even though the owner of the minerals makes
no attempt to remove the minerals.^^ The two properties
are entirely distinct and there is no more reai^on that
the owner of one property should be regarded as in
wrongful possession of the other than if the ])lane
by which they are separated was vertical instead of
horizontal. And in order that the surface owner
may be regarded as in possession of the minerals,
so that the statute may run in his favor with I'eference
thereto, he must conduct mining operations with such
62. Delaware & Hudson Canal 167 Pac. 1025; Crowe Coal & Miu-
Co. V. Hughes, 183 Pa. 66, 38 L. ing Co. v. Atkinson, 85 Kan. 357,
R. A. 826, 38 Atl. 568, 63 Am. Ann. Cas. 1912D, 1196, 116 Pac.
St. Rep. 743. 499; Marvin v. Brewster Iron
63. If the separation of own- Mining Co., 55 N. Y. 538; Gill v.
ership does not occur until after Fletcher, 74 Ohio St. 295, 113 Am.
the taking of wrongful possess- St. 295, 113 Am. St. Rep. 962, 78
ion of the surface, it does not, N. E. 433; Kingsley v. Hillside
it has been decided, prevent the Coal & Iron Co., 144 Pa. 613, 23
running of the statute as to the Atl. 250; Armstrong v. Caldwell,
minerals as well as the surface. 53 Pa. St. 284; Murray v. Allred,
Finnegan v. Stineman, 5 Pa. Sup- 100 Tenn. 100. 66 Am. St. Rep.
er, Ct. 124. 740, 39 L. R. A. 249. 43 S. W. 355;
64. Birmingham Fuel Co. v. Northoutt v. Cliurch. 135 Tenn.
Boshell, 190 Ala. 597, 67 So. 403; 541, 188 S. W. 220, Ann Cus.
Crandall v. Goss. 30 Idaho, 661, 1918B, 545; Morlson v. American
1996 Eeal Peopeety. [§ 513
a degree of continuity as accords with the nature of
the business, and in such a way as will indicate his
intention of exclusive appropriation.^^
If, after the o\vnership of the minerals has be-
come separated from that of the surface, a third per-
son takes possession of the minerals, the statute will
run in his favor as regards the minerals,^^' if his
possession is not only adverse, but also visible and
notorious.''" But if, after the ownership of the miner-
als has become separated from that of the surface, a
third person takes wrongful possession of the sur-
face, his possession does not extend to the minerals,
so as to enable him, by the running of the statutory
period, to acquire title thereto.*'^
§ 513. Particular relations — (a) Landlord and ten-
ant. Possession for the statutorj^ period by the tenant
under a lease is, it is agreed, not ordinarily suflBcient
to confer title upon him as against his landlord.''^
Ass'n, 110 Va. 91, 65 S. E. 469; 69. Alabama State Land Co.
Wallace v. Elm Grove Coal Co., v. Kyle, 99 Ala. 474, 13 So. 43;
58 W. Va. 449, 6 Ann. Cas. 140, 52 Rigg v. Cook, 9 111. 336; Pilaris
S. E. 485. V. Jones, 122 Mo. 125, 26 S. W.
65. Hooper v. Bankhead, 171 1032; Gwynn v. Jones' Lessee, 2
Ala. 626, 54 So. 549; Gordon v. Gill & J. 173; Lyebrook v. Hall,
Park, 219 Mo. 600, 117 S. W. 1163, V3 Miss. 509, 19 So. 348; Carson
119 Am. St. Rep. 802; Armstrong v. Broady, 56 Neb. 648, 73 Am.
V. Caldwell, 53 Pa. 284. See St. Rep. 691, 77 N. W. 80; Le-
edltorial notes, 11 Columbia Law port v. Todd, 32 N. J. L. 124;
Rev. 673, 26 Harv. Law Rev. 555. Jackson v. Cams, 20 Johns. (N.
66. Catlin Coal Co. v. Lloyd, V.) 301; Whiting v. Edmunds,
176 111. 275, 52 N. E. 144. 9i N. Y. 309; Doherty v. Matsell,
67. Pierce v. Barney, 209 Pa. 119 N. Y. 646, 23 N. E. 994; Tay-
132, 58 Atl. 152; Huss v. Jacobs, lor v. Kelly, 56 N. C. (3 Jones
210 Pa. 145, 59 Atl. 1904. See Eq.) 240; SchuylkiU & D. Imp.
French v. Lansing, 73 N. Y. Misc. & R. Co., 58 Pa. 304; Nessley v.
80, 132 N. Y. Supp. 523. Ladd, 29 Ore. 354, 45 Pac. 904
68. Catlin Coal Co. v. Lloyd, Duke v. Harper, 6 Yerg. (Tenn.)
180 111. 398, 72 Am. St. Rep. 216, 280, 27 Am. Dec. 462; Flanagan
54 N. E. 214; Morelaud v. H. v. Pearson, 61 Tex. 302; Sherman
C. Frick Coke Co., 170 Pa. St. v. Champlain Transportation Co.,
33. 32 Atl. 634. 31 Vt. 162; Emerick v. Tavenner,
§ 513] Advebsb Possession. 1997
The tenant's possession, taken under the lease, in-
volves a recognition of the landlord's title in rever-
sion, and is consequently not adverse or hostile to the
latter. If, however, one becomes tenant of another
without being aware of the fact, there is no recogni-
tion by him of the other's title, and his possession is
consequently adverse, so as to cause the statute to run
in his favor, provided only the landlord has no reason
to suppose the possession to be otherwise. If, for
instance, one takes possession by virtue of an invalid
conveyance in fee simple, even an oral gift, under
the impression that it is a valid conveyance, he is
prima facie a tenant at will under his grantor or
donor,'^*' but his possession is nevertheless, in the ordi-
nary case, adverse to the latter."^ And if one takes
possession under a conveyance which he supposes to
give him a fee simple estate, but by reason of lack of
form gives him a life estate merely, the possession is
to be regarded as adverse to his grantor, so that the
statute will ordinarily commence to run in favor of
those claiming under him, so soon as, by reason of
the expiration of the life estate, the landlord has a
right of action to recover possession. '-
Even though the landlord has a right to enforce
a forfeiture for breach of an express condition, he is
under no obligation so to do, and the statute does not
commence to run by reason of the occurrence of a cause
of forfeiture. '^^ Since the statute does not rim even
afer the term has come to an ond,'^ it could hardly run
merely by reason of a right to bring tlie term to an
end.
9 Gratt. (Va.) 220, 58 Am. Dec. 449, 40 So. 865. In New Haven
217; Swann v. Young, 36 W. Va. Trust Company v. Camp, 8l Conn.
57. 539, 71 Atl. 788, it appears to be
70. Ante, § 61(a). held that the statute begins to
71. Post, § 513(e). run even before the life estate
72. Jackson v. Harsen, 7 Cow. Is out of the way.
(N. Y.) 323, 17 Am. Dec. 517; 73. Doe v. Danvers, 7 East
Henley v. Wilson, 77 N. Car. 216. 299; Gwynn v. .Tones, 2 Gill & J.
See Breland v. O'Neal, 88 Miss. (.Md.) 173.
2 R. P.— 51
1998
Eeal Pbopeety.
[§ 5L'
It has been frequently asserted that, although the
tenant's possession is prima facie not adverse to the
landlord, it may become adverse by reason of his open
repudiation of the tenancy, and notice thereof brought
home to the landolrd.''^^ The repudiation of the tenancy
nmst, it has been said be "clear, positive, and con-
tinued,"'^" and the landlord is not affected by the
repudiation of the tenancy, even though this takes the
form of an attornment to another,'" unless and until
notice thereof is brought home to him."'^ Express
notice is not necessary, it being sufficient that he in
74. Post, this subsection, note
90.
75. Willison v. Watkins, 3 Pet.
43; Ponder v. Cheeves, 104 Ala.
307, 16 So. 145; Rigg v. Cook, 9
111. 336, 46 Am. Dec. 462; Austin
V. Wilson, 46 Iowa, 362; Patter-
son V. Hansel, 4 Bush (Ky.)
654; Sanscrainte v. Torongo, 87
Mich. 69, 49 N. W. 497; Meridian
Land & Industrial Co. v. Ball,
68 Miss. 135, 8 So. 316; Doherty
V. Matsell, 119 N. Y. 646, 23 N.
E. 944; Nessley v. Ladd, 29 Ore.
354, 45 Pac. 904; McGinnis v.
Porter, 20 Pa. 80; Duke v. Har-
per, 6 Yerg. (Tenn.) 280, 27 Am.
Dec. 462; Reusens v. Lawson,
91 Va. 226, 21 S. E. 347; Swann
V. Thayer, 36 W. Va. 46, 14 S. E.
423.
76. Morris v. Wheat, H App.
Dist. Col. 201; Rigg v. Cook, 9
111. 336, 46 Am. Dec. 462; Wilkins
V. Pensacola City Co., 36 Fla.
36, 18 So. 20; Nessley v. Ladd, 29
Ore. 354, 45 Pac. 904.
77. Doe V. Clayton, 81 Ala. 391.
2 So. 24; De Jarnette v. McDan-
lell, 93 Ala. 215, 9 So. 570;
Camden Orphan Soc. v. Lockhart,
2 Mull. Law (S. C.) 84. Contra,
semble, Holtzman v. Douglas, 168
U. S. 278, 42 L. Ed. 466.
Occasionally it appears to be
asserted that the tenant's attorn-
ment to another cannot start the
running of the statute as against
the landlord. Dausch v. Crane,
109 Mo. 323, 19 S. W. 61; Fowler
V. Simpson, 79 Tex. 611, 23 Am.
St. Rep. 370, 15 S. W. 682. This
does not accord with the decisions
that the tenant's possession be-
comes adverse if he repudiates
the tenancy and so informs the
landlord.
78. Willison v. Watkins, 3 Pet.
(U. S.) 43; Le Croix v. Malone,
157 Ala. 434, 47 So. 725; Wilkins
V. Pensacola City Co., 36 Fla. 36.
18 So. 20; Farrow's Heirs v. Ed-
mundson, 4 B. Mon. (Ky.) 605,
41 Am. Dec. 250; Leport v. Todd,
32 N. .1. L. 124; Campbell v.
Shipley, 41 Md. 81; Holman v.
Bonner, 63 Miss. 131; Greenwood
V. Moore, 79 Miss. 201, 30 So.
609; Hamilton v. Boggess, 63
Mo. 233; Ross v. McManigal, 61
Neb. 90, 84 N. E. 610; Nesley v.
Ladd, 29 Ore. 354, 45 Pac. 904;
McGinnis v. Porter, 20 Pa. 80;
Whaley v. Whaley, 1 Speer Law
'^ 513] Adverse Possessiox. 1991)
some way acquires knowledge of the tenant's action."''
And according to some decisions lie is chargeable witli
notice by reason of the open and notorious character
of the repudiation of the tenancy.^*^
Since the statute of limitations cannot commence
to run until there is a right of action in favor of the
rightful owner, it follows that the doctrine above re-
ferred to, that the repudiation of the tenancy starts
the running of the statute, necessarily involves tlie
assumption that such repudiation gives a right to the
landlord to assert a forfeiture of the tenant's estate,
and there are ciuite a number of decisions that it does
give such right,* ^ In a few jurisdictions, however, it
appears that a mere oral disclaimer of the tenancy
does not give any right of action to the laiidlord,"^-
and in any such jurisdisdiction adopting that view,
the repudiation of the tenancy could not start the
statute in favor of the tenant, until after the expiration
of the term for which the tenancy was created.
(S. C.) 225, 40 Am. Dec. 594; 80. Wells v. Sheerer. 78 Ala.
Bryce v. Cayce, 62 S. C. 546, 4ft 142; Rigg v. Cook, 9 111. 336, 4C
S. E. 948; Duke v. Harper, 6 Am. Dec. 462; Farrow v. Edmund-
Yerg. (Tenn.) 280, 27 Am. Dec. son, 4 B. Mon. (Ky.) 605, 41 Am.
462; Udell v. Peak. 70 Tex. 547, Dec. 250; Myers v. Sill jacks, ?8
7 S. W. 786; Stacy v. Bostwick, Md. 319; McClanahan v. McClana-
48 Vt. 192; Allen v. Paul, 24 han, 258 Mo. 579. 167 S. W. 991.
Gratt. (Va.) 332; Voss v. King, 81 These decisions are cited 2
33 W. Va. 236, 10 S. E. 402. Tiffany, Landlord & Tenant. § 192.
79. Wells V. Sheerer, 78 Ala. 82. See Jackson v. Kissoll)rack,
142; Cotton v. White, 131 Ark. 10 Johns. (N. Y.) :536. 6 Am. Dec.
273, 199 S. W. 116; Morton v. 341; De Lancey v. Ganong, 9 N.
Lawson, 1 B. Mon. (Ky.) 45; Y. 9; Bedlow v. N. V. Floating
Catlin V. Decker, 38 Conn. 262: Dry Dock Co. 112 N. Y. 263. 287,
Brandon v. Bannon, 38 Pa. 63; 2 I.. R. A. 629, 19 N. E. 800;
Cosgrove v. Franklin, 35 R. I. Rosseel v. Jarvis, 15 Wis. 571,
527, 87 Atl. 544; Floyd v. Mintsey, 82 Am. Dec. 298; Gale v. Oil Hun
7 Rich. Law (S. Car.) 181; Udell Petroleum Co., 6 W. Va. 200 >
V. Peak, 70 Tex. 547, 7 S. W. 786; Doe d. Graves v. Wells. 10 Adol.
Rensens v. Lawson, 91 Va. 226, & El. 427; Doe d. Daniels t.
21 S. E. 347; Swann v. Thayer, Weese, 5 Up. Can. Q. B. 5S9.
36 W. Va. 46. 14 S. K. 423.
2000 Eeal Property. [§ 513
Occasionally it has been asserted that, in order
that the tenant may start the statute running in his
favor, he must not only repudiate the teancy, but must
also relinquish the possession acquired under the lease
and then reenter.^'' This view appears to be based
on the theory that by reason of the doctrine that a
tenant is estopped or precluded to deny his landlord's
title,^^ he cannot make his possession adverse by such
a denial, but that such doctrine ceases to apply after
the tenant has relinquished possession. The doctrine of
the estoppel of the tenant to deny the landlord's title
has, it is submitted, no bearing whatsoever upon the
question. That doctrine precludes the tenant from
denying, in certain classes of action, that the lessor
had a valid title at the time of the lease, but it does
not, and in fact it cannot, preclude him from making
such a denial out of court, and there is nothing in the
doctrine to prevent him from subsequently showing,
in the course of a legal proceeding, that he did make
such denial, and that as a result of such denial the
title of the lessor was extinguished by the statute of
limitations. Furthermore, if this doctrine of estoppel
did apply for this purpose, it is most questionable
whether it should cease to apply merely because the
tenant relinquishes possession,^^ unless such relinquish-
ment is accepted by the landlord, so as to etfect a sur-
render by operation of law,^*^ in which case the former
tenant's subsequent entry might well be adverse.
There are occasional decisions to the effect that
if one holding under a lease assumes to transfer a fee
simple estate in the property, and the transferee takes
possession in ignorance of the fact that his transferor
83. Millett V. Lagomarsino, 107 Hightower, 97 Ga. 592, 25 S. E.
Cal. 102, 40 Pac. 25; Alderson v. 371. See 2 Columbia Law Rev.
Marshall, 7 Mont. 288, 16 Pac. 52, 9 Id. 451.
576; Whiting v. Edmunds, 94 N. 84. Ante, § 57.
Y. 309; Dasher v. Ellis, 102 Ga. 85. Ante, § 57 (d).
830, 30 S. E. 544; Flannery v. 86. Ante, § 431.
*§> 513] Adveese Possession. 2001
had merely a leasehold interest to transfer, the pos-
session of the transferee is adverse to the original
landlord, although the latter has no notice to that
effect.^" Such decisions do not appear to accord with
the well settled rule that the statute does not com-
mence to run by reason of the repudiation of the
tenancy unless and until notice of such repudiation is
brought home to the landlord. The landlord has a
right to assume, until notified of the contrary, that one
in possession under a transfer from the lessee is in
possession as tenant merely, and while the fact that
the transferee is ignorant of the lease shows that
there is no recognition by him of the landlord's title,
this is no reason for applying as against the landlord
a doctrine which has properly no application in the
absence of laches on the part of the latter.^** And so,
it one holding as tenant at will dies, and his widow
succeeds him in the possession, her possession is pre-
sumed, in the absence of any repudiation by her of
the tenancy, to be subordinate to the title of the true
owner.^^^
If the tenant under a lease holds over witliout the
consent of the reversioner, that is, without riglit, he
is not, properly speaking, a tenant of the person whom
he wrongfully excludes from possession,*^'' but never-
theless his possession is, prima facie, not regarded as
adverse to the latter.^*'
87. Macdougall v. Reedy, 71 Philips v. Rothwell, 4 Bibb. (Ky.)
Ga. 750; Dikeman v. Parrish, tJ 33; Millett v. Lagonia(rsino, 107
Pa. 225, 47 Am. Dec. 455; Town- Cal. 102, 38 Pac. 308; Gee v.
send V. Boyd, 217 Pa. 386, 12 L. Hatley, 114 Ark. 376, 170 S. W.
R. A. N. S. 1148, 66 Atl. 1099; 72; editorial notes 9 Columbia
Illinois Steel Co. v. Budzisz, 139 Law Rev. 451. 22 Harvard Law
Wis. 281, 119 N. W. 935, 121 N. Rev. 604; 7 Mich Law Rev. 592.
W. 362. 88a. Frazer v. Naylor, 1 Mete
88. See Luce v. Carley, 24 (Ky.) 593; Neilson v. (;^i^;IU)Il,
Wend. (N. Y.) 451, 35 Am. Dec. 85 Wis. 550, 55 N. W. 890.
637; Bedlow v. New York Float- 89. Ante, § 68.
ing Dry Dock Co., 112 N. Y. 263, 90. Gwynn v. Jones' Lessee, 2
287, 2 L. R. A. 629, 19 N. E. 800; Gill. & J. (Md.) 173; Lyebrook
2002
Real Peopeety.
[§ 513
(b) Trustee and cestui que trust, Tlie posses-
sion of the trustee under an express trust is ordinarily
not adverse to the cestui que trust,^'^ But although the
possession of the trustee is originally not adverse, it
becomes so in case he repudiates the trust by un-
equivocal words or acts, and such repudiation is
brought to the notice of the cestui que trust.^^
In the case of a constructive trust, which is rec-
ognized by a court of equity for the purpose of relief
against fraud,'''^ the possession of the holder of the
legal title is ordinarily adverse to the person who
V. Hall, 73 Miss. 509, 19 So. 348;
Carson v. Broady, 56 Neb. 648,
71 Am. St. Rep. 691, 77 N. W. 80;
Jackson v. Cams, 20 Johns. (N.
Y.) 301; Taylor v. Kelly, 3 Jones
Eq. (56 N. Car.) 240; Leport v.
Todd, 32 N. J. L. 124; Nessley v.
Ladd, 29 Ore. 354, 45 Pac. 904;
Whaley v. Whaley, 1 Speer Law
(S. C.) 225. 40 Am. Dec. 594;
Brandon v. Bannon, 38 Pa. 63;
Uiike V. Harper, 6 Yerg. (Tenn.)
280, 27 Am. Dec. 462; Flannagan
V. Pearson, 61 Tex. 302; Fahey v.
Kaies,— Tex. Civ.—, 181 S. W.
782; Sherman v. Champlain
Transportation Co., 31 Vt. 162;
Emerick v. Tavener, 9 Gratt.
(Va.) 220, 58 Am. Dec. 217;
Swann v. Young, 36 W. Va. 57,
14 S. E. 426.
In New York the statute pro-
vides that the holding of a tenant
shall not be adverse till twenty
years after the expiration of the
term. See Whiting v. Edmunds,
94 N. Y. 309.
91. Seymour v. Freer, 8 Wall.
(U. S.) 202. 19 L. Ed. 306; Cruse
v. Kidd, 195 Ala. 22, 70 So. 166;
Watson V. Sutro, 86 Cal. 500, 24
Pac. 172, 25 Pac. 64; Meacham
V. Bunting, 156 111. 586, 47 Am.
St. Rep. 239, 28 L. R. A. 618;
Dunn V. Wheeler, 86 Me. 238, 29
Atl. 985; Hatt v. Green, 180 Mich.
383, 147 N. W. 593; Kane v.
Bloodgood, 7 Johns. Ch. 125; Mil-
ler V. Bingham, 36 N. C. 423, 36
Am. Dec. 58; Williams v. First
Presbyterian Soc. in Cincinnati,
1 Ohio St. 478; Smith v. McElyea,
68 Tex. 70, 3 S. W. 258; Reuford
V. Clarke, 100 Va. 115, 40 S. E.
630.
92. Willison v. Watkins, 3 Pet.
42, 52; Schlessinger v. Mallard,
70 Cal. 326, 11 Pac. 728; Terry
V. Davenport, 185 Ind. 561, 112 N.
E. 998; McGuire v. Nugent, 103
Mo. 161, 15 S. W. 551; Stanton
V. Helm, 87 Miss. 287, ?9 So.
457; Lamberton v. Youmans, 84
Minn. 109. 86 N. W. 894; Con-
gregational Soc. etc. v. Newing-
ton, 53 N. H. 595; Boydstun v.
Jacobs. 38 Nev. 175, 147 Pac. 447;
Williams v. Cincinnati First
Presby. Church, 1 Ohio St. 478;
Long v. Cason, 4 Rich. Eq. 60;
Fennell v. League, 107 Tenn. 239,
63 S. W. 1121.
93. Ante, § 108(a).
§ 513] Adverse Possession. 20U3
is asserting the fraud.''* That is, the statutory period
within which one must seek to be relieved against
another's fraud is not extended by reason of the fact
that such fraud has resulted in placing the legal title
to land in the wrongdoer, and that the court, in re-
lieving against the fraud, does so by declaring him
to hold in trust for the person defrauded. But if the
fraud arises from the repudiation of a promise or
undertaking to hold the land for the benefit of another,
the statute does not begin to run until the repudiation
actually occurs, and knowledge thereof is brought
home to the person entitled to assert the fraud. '^^^
And the view, adopted in many states, that the statute
of limitations does not run against a right of action
based on fraud, until the fraud is discovered, would
frequently operate to extend the time for the assertion
of a constructive trust.^^
To what extent, in the case of a resulting trust,
that is, a trust implied in accordance with presumed
intention,'''^ the possession of the trustee is to be re-
garded as adverse or not adverse to the person bene-
ficially entitled, the cases are not entirely clear. It has
been decided in a number of cases that, when the
trust resulted from the payment of a consideration by
one person for property conveyed to another, the
possession of the latter was not adverse to the person
making the payment mitil there was an exj)licit re-
pudiation of the trust, reference being made, however,
in some of these cases, to the fact that the circum-
stances showed an acknowledgment by the former of
94. Lewis V. Hawkins, 23 Wall. 95. Odell v. Moss, 130 Cal. 352,
119; Hunter v. Dennis, 112 HI. 62 Pac. 555; Carr v. Craig, 138
568, Terry v. Davenport, 185 Ind. Iowa, 526, 116 N. W. 720; Newia
561, 112 N. E. 998; Kennedy v. v. Topfer, 121 Iowa. 433. 96 N.
Kennedy, 25 Kan. 151; Edwards W. 905.
V. University, 21 N. C. 325. 30 96. Markley v. Canulon Safe
Am. Dec. 170; Church v. Winton, Deposit & Trust Co., 74 N. .T. Eg.
196 Pa. St. 107, 46 Atl. 363. 279. 69 Atl. 1100.
97. Ante, § 107.
2004 Real Property. [§ 513
the existence of a trust.^^ When the title is taken in
the other's name with a fraudulent intention on the
part of such other, the trust is to be regarded as a
constructive rather than a resulting trust, and the
statute would run at least from the time of the dis-
covery of the fraud.''^
In case the trustee under an express trust trans-
fers the legal title to a third person, who takes with
notice of the trust, or who pays no consideration, the
cestui que trust may assert the trust as against such
transferee.^ The possession of such transferee for
the statutory period has been regarded as sufficient
to bar the rights of the cestui que trust, in some cases
on the ground that his possession is adverse to the
original trustee,- applying the rule that the cestui que
trust is barred when the trustee is barred,^ while in other
cases the cestui cjue trust has been regarded as barred on
the theory that the possession of the transferee of the
legal title is that of a constructive trustee, and is con-
sequently adverse to the person equitably entitled.^ In
98. Long V. King, 117 Ala. 78 Neb. 584, 111 N. W. 368;
423, 23 So. 534; Haney v. Legg, Crowley v. Crowley, 72 N. H. 241,
129 Ala. 619, 87 Am. St. Rep. 81, 56 Atl. 190; Fawcett v. Fawcett,
30 So. 34; Plass v. Plass, 122 85 Wis. 332, 39 Am. St. Rep.
Cal. 3, 15; Norton v. Bassett, 154 844, 55 N. W. 405.
Cal. 411, 129 Am. St. Rep. 162, 99. Kennedy v. Kennedy, 25
87 Pac. 894; Corr's Appeal from Kan. 151; Cox v. Menzing,
Com'rs, 62 Conn. 403, 26 Atl. 478;' —(Miss.)— 30 So. 41; Reed v.
Warren v. Adams, 19 Colo. 515, Painter, 145 Mo. 341, 46 S. W.
36 Pac. 604; Reynolds v. Sumner, 1089.
126 111. 58, 1 L. R. A. 327, 9 Am. 1. Ante, § 114.
St. Rep. 523; Zunkel v. Colson, 2. Merriam v. Hassam, 14
109 Iowa, 695, 81 N. W. 175; In re Allen (Mass.) 516, 92 Am. Dec.
Mahin's Estate, 161 Iowa, 459, 795; Smilie v. Piffle, 2 Pa. St.
143 N. W. 420; Smith v. Smith, 52, 44 Am. Dec. 156; McCrary v.
132 Iowa, 700, 119 Am. St. Rep. Clements, 95 Ga. 778, 22 S. E.
581, 109 N. W. 194; Lufkin v. 675.
Jakeman, 188 Mass. 528, 74 N. 3. Ante. § 506, note 9.
E. 933; Condit v. Maxwell, 142 4. Robinson v. Pierce, 118
Mo. 266, 44 S. W. 467, (but see Ala. 273, 45 L. R. A. 66, 72 Am.
Reed v. Painter, 145 Mo. 341, 46 St. Rep. 160, 24 So. 984; Smith
S. W. 1089); Hanson v. Hanson, v. Dallas Compress Co., 195 Ala.
*§ 513] Adveesb Possession. 2005
at least one case the conclusion that the beneficiary is
barred is based upon the theory that the transfer of
the legal title by the original trustee involves a re-
pudiation of the trust by him, which starts the run-
ning of the statute in favor of him and of any person
claiming under him.^ It has occasionally been decided
that the possession of the transferee is adverse as
against the beneficiary of the trust even though the
latter is not siii juris^' and that it is adverse even as
against one equitably entitled in remainder only/ de-
cisions which are evidently based on the theory, above
referred to, that the beneficiary is barred ))y reason of
the bar of the original trustee. To regard, however,
an innocent beneficiary as barred by his trustee's
failure to take legal action to set aside a wrongful
transaction in which the latter knowingly participated
does not seem entirely in accord with equitable princi-
ples. And the rule that the cestui is barred of relief
as against the transferee of the trustee merely be-
cause the statute has run as against the trustee him-
self has been occasionally asserted to be inapplicable
in favor of one who thus colluded with the trustee in
a breach of trust. ^ The bar of the cestui que trust may,
534, 70 So. 662; Nougues v. 512; Williams v. First Presby-
Newlands, 118 Cal. 102, 50 Pac. terian Soo. 1 Ohio St. 478.
386; StillweU v. Leavy, 84 Ky. 6. McCrary v. Clements, 95
379, 1 S. W. 590 (semble); Ga. 778, 22 S. E. 675; Wilson
Cummings v. Stovall, 6 Lea v. Louisville Trust Co., 102 Ky.
(Tenn.) 679; Bedford v. Clarke, 522, 44 S. W. 121; Ewing v.
100 Va. 115, 40 S. E. 630. See Shannahan, 113 Mo. 188, 20 S.
Newman v. Newman, 60 W. Va. W. 1065.
371, 7 L. R. A. N. S. 370. In 7. Robinson v. Pierce, 118
Norton v. Bassett, 154 Cal. 411, Ala. 273 45 L. R. A. 66. 72 Am.
129 Am. St. Rep. 162, 97 Pac. St. Rep. 160. 24 So. 984.
894, it was decided that if the 8. Chase v. Cartright, 53 Ark.
legal title passes by descent on 358, 22 Am. St. Rep. 207, 14 S.
the death of the trustee, the W. 90; Parker v. Hall, 2 Head,
heirs taking possession are con- (Tenn.) 641; Elliott v. Landls
structive trustees merely, in Mach. Co., 236 Mo. 546, 139
favor of whom the statute runs. S. W. 356, distinguishing Ewing
5. Peters v. Jones, 35 Iowa, v. Shannahan, 113 Mo. 188, 20
2QP6 Beal Property. [§ 513
it is submitted, be most satisfactorily based upon the
theory that the transfer by the the original trustee in-
volves a repudiation of the trust, which sets the
statute in motion as against him and those claiming
under him, so soon, and not until, it becomes known to
the cestui que trust.
The possession of the cestui cpte trust under an
express trust is prima facie not hostile to the trustee,
though it may become so by the assertion by him of a
claim in his own right.^'^ The possession of one whose
beneficial interest exists by reason of a resulting trust
implied from his payment of the purchase price has
been regarded as adverse to the person to whom he
had the legal title conveyed.^ ^
(c) Licensor and licensee. One who goes on
land as a licensee merely has no possession of the
land,^2 and consequently the statute does not begin to
run in his favor unless and until he in effect takes
possession by denying that he is in the position of a
licensee. ^^
(d) Principal and agent. Whether one who
is upon another's property in the capacity of agent
has, strictly speaking, possession of the property
S. W. 1065 on the ground that Stevenson, 118 Iowa, 106, 91 N.
in the earlier case the purchase W. 925; Matthews v. Ward, 10
was not directly from the trustee. G. & J. (Md.) 443; Whiting v.
See also Deans v. Gay, 132 N. Whiting, 4 Gray (Mass.) 236;
Car. 227, 43 S. E. 643. Newmarket v. Smart, 45 N. H.
9. As to the necessity of 103; Marr's Heirs v. Gilliam, 1
knowledge on the part of the Cold. (Tenn.) 488.
beneficiary, see Marshall's Estate, 11. Ripley v. Bates, 110 Mass.
138 Pa. St. 285, 22 Atl. 24; Jones 161.
V. Godwin, 10 Rich. Eq. 226; 12. Ante. § 349(a).
Neal V. Bleckley, 51 S. C. 506, 13. Sanitary Dist. of Chicago
29 S. E. 249; editorial note 11 v. Allen, 178 lU. 330, 53 N. E.
Columbia Law Rev. 686. 109; Blaisdell v. Portsmouth,
10. Burrows v. Holt, 20 Conn. G. F. & C. R. Co., 51 N. H. 483;
464; Winn v. StriclVaid, 34 Fla. Luce v. Carley, 24 Wend. (N.
610, 16 So. 606; McClenahan v. Y.) 451, 35 Am. Dec. 637; Curtis
§ 513]
Advebse Possession.
2007
appears to be open to doubt.'"" But assuming that ho
oan be regarded as having possession, his possession is
prima facie not adverse to the owner, liis principal.'*
Hie may, liowever, acquire an adverse possession as
against tlie latter by a repudiation of the relation of
agency, or assertion of a claim to the property in his
own right, so soon as the principal is affected with
knowledge thereof.'^
(e) Grantor land grantee. If one who has
made a conveyance of land retains possession of the
land, his possession is regarded as prima facie in sub-
ordination to the title of his grantee, and as conse-
quently not adverse, unless and until he in some wa}'
indicates to the latter that he holds in his own behalf.'*'
V. La Graude Hydraulic Water
Co., 20 Ore. 34; Kittaning Acad-
emy V. Brown, 41 Pa. St. 269;
Raleigh v. Wells, 29 Utah, 217,
110 Am. St. Rep. 689, 81 Pac.
908.
In Cameron v. Chicago, M. &
St. P. Ry. Co., 60 Minn. 100, 61
N. W. 814, it was held that the
fact that the licensee undertook
to transfer the land to another,
who took possession, did not
start the running of the statute
in favor of such other, since it
might be assumed that the own-
er, in not objecting to the lat-
ter's presence on the land, in
effect regarded him as a licensee.
The decision seems open to ques-
tion, since it does not appear
that the transferee in possession
regarded himself as a licensee.
But see Bond v. O'Gara, 177
Mass. 139, 83 Am. St. Rep. 265;
58 N. E. 275, criticized 14
Harv. Law Rev. 374.
13a. See Pollock & Wright,
Possession 17; Lightwood, Pos-
session of Land, 22; Holmes,
The Common Law, 227.
14. Baucum v. George, 65 Ala.
259; Hoskins v. Byler, 53 Ark.
532, 14 S. W. 864; Peabody v.
Tarbell, 2 Cush. (Mass.) 226;
Combs V. Goldsworthy, 109 Mo.
151, 18 S. W. 1130; Leigh v.
Howard, 87 N. J. L. 113, ?3 Atl.
680; Martin v. Jackson, 27 Pa.
St. 504, 67 Am. Dec. 489; Pea-
body v. Leach, 18 Wis. 657.
15. Carney v. Hennessey, 77
Conn. 577, 60 Atl. 129; Whiting's
Heirs v. Taylor's Heirs, 8 Dana
(Ky.) 403; Martin v. Jackson,
27 Pa. St. 504, 67 Am. Dec. 489;
Williams v. Pott, L. R. 12 Eq.
149. As to adverse possession
by an agent, holding by one
to whom he has leased the land
for his principal, see note in
14 Columbia Law Rev. at p. 266.
16. Daniels v. Williams, 177
Ala. 140, 58 So. 419; Stuttgart
V. John, 85 Ark. 520, 109 S. W.
541; Gernon v. Sisson, — (Cal.) —
l.'.l Pac. 85; Jay v. Whelchel.
2008
Real Property.
[§ 513
The cases do not clearly explain why the possession of
the grantor is thus presumed not to be in his own
behalf.^'^ Obviously, if the grantor retains possession
by reason of permission to that effect from the grantee,
his possession is not adverse, it being in effect that of a
tenant, ordinarily a tenant at will, of the latter,^^ but
the desirability of regarding the grantor as a tenant of
the grantee, or as otherwise holding in behalf of the
78 Ga. 786; Trask v. Success
Mining Co., 28 Idaho, 483, 155
Pac. 288; Rowe v. Beckett, 30
Ind. 154, 95 Am. Dec. 676; Iowa
Cent. R. Co. v. Homan, 151 Iowa,
404, 131 N. W. 878; Sellers v.
Crossan, 52 Kan. 570, 35 Pac.
205; Nugent v. Peterman, 137
Mich. 646, 100 N. W. 895; Col-
lins V. Colleran, 86 Minn, li'9,
90 N. W. 364; Robmson v. Rey-
nolds,— (Mo.)— , 176 S. W. 3;
Cohn V. Plass, 85 N. J. Eq. 153,
95 Atl. 1011; Jackson v. Burton,
1 Wend. (N. Y.) 341; Flesher v.
Callahan, 32 Okla. 283, 122 Pac.
489; Gardner v. Wright, 49 Ore.
609, 91 Pac. 286; Pierce v. Bar-
ney, 209 Pa. 132, 58 Atl. 152;
Lowe V. Turner, 78 S. C. 513, 59
S. E. 529; Virginia Midland R.
Co. V. Barbour, 97 Va. 118, 33 S.
E. 554; Spaulding v. Collins, 51
Wash. 488, 99 Pac. 306; Schwall-
back V. Chicago, M. & St. P. Ry.
Co., 69 Wis. 292, 2 Am. St. Rep.
740, 34 N. W. 128.
17. It is occasionally said that
the grantor's possession is not
adverse, because he is to be re-
garded as tenant at sufferance of
the grantee. See e. g. Daniels
V. Williams, 177 Ala. 140, 58 So.
419; Building & Loan Ass'n v.
Warren, 101 Ark. 163, 141 S.
W. 765; McNeil v. Jordan, 28
Kan. 7; Bloomer v. Henderson,
8 Mich. 395. A tenant at suf-
ferance is a wrongful possessor,
and he is not properly a. tenant
of the person whom he deprives
of possession. And consequently
that one is tenant at sufferance
does not appear to be conclusive
that his possession is not ad-
verse. In other words, the fact,
if it be a fact, that the grantor
retaining possession is tenant at
sufferance (See 1 Tiffany, Land-
lord & Ten., § 44) does not in
itself show that his possession
is not adverse. For instance,
if a tenant per autre vie retains
(possession after the death of
the cestiu que vie, his possession
is usually regarded as adverse
to the remainderman [see post
§ 513(g)], although he is a
tenant at sufferance.
18. See Prichard v. Tabor,
104 Ga. 64, 30 S. E. 415; Butler
V. Nelson, 72 Iowa, 732, 32 N.
W. 399; Hunt v. Comstock, 15
Wend. (N. Y.) 665; Preston v.
Hawley, 101 N. Y. 586, 5 N. E.
770, Id., 139 N. Y. 296, 34 N. E.
90G; Cadwallader v. Lovece, 10
Tex. Civ. App. 1, 29 S. W. 666,
917; Hodges v. Gates. 9 Vt. 178.
§ 513]
Adverse Possession.
2009
latter, in the absence of any evidence to that effect,
appears to be open to question.^^
One who goes into possession of land under a
transfer of the land from the owner, whether by way
of gift or otherwise, which is invalid because oral mere-
ly, may usually assert the bar of the statute against the
owner if his possession continues for the statutory
period, since his possession is presumed to be adverse
to any right in the o^vner.^o And generally a grantee's
possession is regarded as adverse to the rights of the
grantor, whatever be the character of the defects in
the grant.2^
19. See, in this connection,
Knight V. Knight, 178 111. 553,
53 N. E. 306; Waltemeyer v.
Baughman, 63 Md. 200; Smith
V. Montes, 11 Tex. 24; Brinkman
V. Jones, 44 Wis. 498, 524.
In Arkansas it is said that
when the grantor's possession
continues unexplained for an un-
reasonable length of time, the
presumption that it is in sub-
ordination to the grantee's title
is gradually overcome. Tegarden
V. Hurst, 123 Ark. 354, 185 S.
W. 463. It does not appear
whether, if the presumption is
thus overcome, the limitation
period is to be regarded as be-
ginning to run from the date
of the grant or when the pre-
sumption is overcome.
20. Gillespie v. Gillespie, 149
Ala. 184, 43 So. 12; Trotter v.
Neal, 50 Ark. 340, 7 S. W. 384;
New Haven Trust Co. v. Camp,
81 Conn. 539. 71 Atl. 788;
Studstill v. Wilcox, 94 Ga. 690,
20 S. E. 120; Stewart v. Duffy,
116 111. 47. 6 N. E. 424; Albright
V. Albright, 153 Iowa, .'597, 133 N.
W. 737; Tippenhauer v. Tlippen-
hauer,— (Ky.)— , 166 S. W. 225;
Sumner v. Stevens, 6 Mete.
(Mass.) 337; Schafer v. Hauser,
111 Mich. 622, 35 L. R. A. 835,
66 Am. St. Rep. 403, 70 N. W.
136; Sinclair v. Matter, 125
Minn. 484, 147 N. W. 655; Ran-
nels V. Ranuels, 52 Mo. 109;
Davidge v. Talbot, 98 Neb. 816,
154 N. W. 543; Parker v. Kelsey,
82 Ore. 334, 161 Pac. 694; Nulton
V. Nulton, 247 Pa. 572, 93 Atl.
630; Bartlett v. Secor, 56 Wis.
520, 14 N. W. 714.
It has been said that unless
the donee's entry into possession
is under the honest belief that
the land was given him, he Is
presumed to be holding under a
license, and the possession not to
be adverse. Johns v. Johns, 244
Pa. 48, 90 At. 535; O'Boyle v.
Kelley, 249 Pa. 13, 94 Atl. 448.
The idea apparently is that if
the person so entering knows
that the land was not legally
given him, he is presumed to
regard his possession as per-
missive merely until a valid gift
is actually made.
21. Robinson v. Thornton, 102
2010
Eeal Peopeety.
[§ 5i:
(f ) Vendor and vendee. The possession of
the vendee of land under an executory contract of
sale is presumed to be in subordination to the rights of
his vendor so long as the purchase price has not been
paid or the contract is otherwise unperformed on his
part,-^ while, by the weight of authority, so soon as he
has completely performed his part of the contract,
his possession becomes adverse to the vendor,^^ as it
does, even before performance by him, if he explicitly
repudiates holding under the vendor.-^
Cal. 675, 34 Pac. 120; Carmody
V. Chicago & A. R. Co., Ill 111.
69; Big Sandy Co. v. Ramey, 162
Ky. 236, 172 S. W. 508; Melvin
V. Proprietors of Locks & Canals
on Merrimack River, 5 Mete.
(Mass.) 15, 38 Am. Dec. 384;
Case V. Green, 53 Mich. 615, 19
N. W. 554; Mattison v. Ausmuss,
60 Mo. 551; Nowlin v. Adams,
25 Gratt (Va.) 137; Parkersburg
Nat. Bank v. Neal, 28 W. Va.
744.
22. Lewis v. Hawkins, 23 Wall
119; Sample v. Reeder, 107 Ala.
227, 18 So. 214; Perry v. Arka-
delphia Lumber Co., 83 Ark. 374,
103 S. W. 724; Woodward v.
Hennegan, 128 Cal. 293, 60 Pac.
769; Spratt v. Livingston, 32
Fla. 507, 22 L. R. A. 453; Moore
V. Mobley, 123 Ga. 424, 51 S. E.
351; Peabody v. Hewett, 52 Me.
33, 83 Am. Dec. 486; Brown v.
King, 5 Mete. (Mass.) 173; Burke
V. Douglass, 115 Mich. 197, 73 N.
W. 133; Moring v. Abies, 62 Miss.
263, 52 Am. Rep. 186; In re De-
partment of Public Parks, 73 N.
Y. 560; Worth v. Wrenn, 144 N.
C. 656, 57 S. E. 388; West v.
Edwards, 41 Ore. 609, 69 Pac.
992; Moo-e v. Kelly, 57 Okla.
348, 157 Pac. 81; McCulloch v.
Nicholsou,^Tex. Civ. App — , 162
S. W. 432; William James Sons
Co. V. Hutchinson, 79 W. Va. 389,
90 S. E. 1047. The possession
of the vendee has been regarded
as becoming adverse in case the
vendor repudiates the contract, as
by conveying to another person.
Pearson v. Boyd, 62 Tex. 541.
23. Alabama State Land Co.
V. Matthews, 168 Ala. 200, 53 So.
174; Dickson v. Sentell, 83 Ark.
.385, 104 S. W. 148; New Domain
Oil & Gas Co. v. Gaffney Oil Co.,
134 Ky. 792, 121 S. W. 699;
Grigsby v. Smith, 174 Ky. 819,
192 S. W. 856; Brown v. King, 5
Mete. (Mass.) 173; Moring v.
Abies, 62 Miss. 263, 52 Am. Rep.
186; Ogle v. Hignet, 161 Mo. 47,
61 S. W. 596; Lanham v. Bowlby,
86 Neb. 148, 125 N. W. 149; An-
derson v. McCormick, 18 Ore.
301, 22 Pac. 1062; Watts v. Witt,
39 S. C. 356, 17 S. E. 822; Central
Pac. Ry. Co. v. Tarpey,— Utah— ,
168 Pac. 554; Adams v. Fullam,
43 Vt. 592; Furlong v. Garrett.
44 Wis. Ill; See Endicott v.
Haviland, 220 Mass. 48, 107 N. E.
394.
24. Zeller v. Eckert, 4 How.
295: Sample v. Reeder, 107 Ala.
227, 18 So. 214; Pope v. Brass-
§ 513] Adverse Possessiox. 2U11
It is not entirely clear why the performance of
the vendee's part of the contract should b<^ regarded
as ipso facto giving to his possession an adverse
character, but it is perhaps based on the view that the
vendee is then entitled to possession,-*' and that con-
sequently, while previously his possession could be
explained only on the theory tliat he was the tenant of the
vendor,-'^ such tenancy might be regarded as automatic-
ally ended by reason of complete performance of the
contract by him. There are decisions, however, that
even in the case of such complete performance by
the vendee, a repudiation of the vendor's title is nec-
essary to start the running of the statute.-" And in
support of this view it may be suggested that, what-
ever change in the relations of the parties may be
made by the vendee's performance, in the view of a
court of equity, it does not change their relations at
law.
Where the vendee under an executory contract of
sale transfers his interest to another, who takes pos-
session, the possession of the latter is ordinarily, like-
that of the original vendee, not adverse to the vendor,-^
provided at least he has notice that his vendor, the
field, 110 Ky. 128, 61 S. W. 161; man v. Chapman, 91 Va. 397, 50
Burke v. Douglass, 115 Mich. 197, Am. St. Rep. 846, 21 S. E. 813;
73 N. W. 133; Lanham v. Bowlby Core v. Faupel, 24 W. Va. 238.
86 Neb. 148, 125 N. W. 149; Cook In Briggs v. Prosser, 14 Wend.
V. Knott, 28 Tex. 85; Chapman 227, whether the possession after
V. Chapman, 91 Va. 397, 50 Am. performance is adverse, was re-
st. Rep. 846, 21 S. E. 813. garded as a question to be deter-
25. See cases cited, 19 Am. & mined with reference to the
Eng. Encyc. Law (2d Ed.) 704; facts.
39 Cyclopedia Law & Proc. 1621. 28. Lewis v. Hawkins. 23
26. See 1 Tiffany, Landl'd & Wall. 119; Hannibal, etc., R. Co.
Ten. § 43a. v. Miller, 115 Mo. 158, 21 S. W.
27. Pope V. Brassfield, 110 Ky. 915; Jackson v. Bard, 4 Johns.
128, 61 S. W. 5; Roxbury v. (N. Y.) 230, 4 Am. Dec. 267:
Hutson, 37 Me. 42 (seni'ble) ; Gillison v. Savannah, etc.. R. Co.,
Rodgers v. Beckel, 172 Mich. 544, 7 S. C. 173. Compare ilunter
138 N. W. 202 isemble); Chap- v. Parsons, 2 Bailey ( S. C) 59.
2012 Real Property. [§ 513
original vendee, claims under an executory contract.^''
It lias been decided, however, that if the original
vendee make a conveyance to another, who takes with-
out notice that his grantor is holding merely under an
executory contract of sale, the possession of the
grantee is adverse to the original vendor.^*^ And there
are occasional decisions that the mere fact that a
purchaser from the original vendee has made full
payment to the latter suffices in itself to make such
purchaser's possession adverse to the original vendor.-^^
In any case, the possession of one claiming under the
original vendee, like that of the original vendee him-
self, may become adverse by reason of his repudiation
of the claim of the vendor.^-
(g) Life tenant and remainderman. The
statute of limitation does not operate in favor of a
tenant for his owm or another's life, so long as the
life endures, as against the remainderman or rever-
sioner.'''" The life tenant is rightfully in possession ana
the theory of adverse possession operates only wiien
there is a wrongful possession,^* and it is consequently
29. Little Rock etc. R. Co. v. A. 618, 47 Am. St. Rep. 239, 41
Rankin, 107 Ark. 487, 156 S. W. N. E. 175; Haskett v. Maxey, 134
431 (grantee by quitclaim charg- Ind. 182, 19 L. R. A. 379; Mixter
ed with notice). Brown v. v. Woodcock, 154 Mass. 535, 28
Huey, 103 Ga. 448, 30 S. E. 429; N. E. 907; Stevens v. Winship, 1
Keys V. Mason, 44 Tex. 144. Pick. 318, 11 Am. Dec. 178; Lum-
30. Wingfield v. Davis, 53 Ga. ley v. Haggerty, 110 Mich. 552, 64
655; Ripley v. Miller, 165 Mich. Am. St. Rep. 364, 68 N. W. 243;
470, 130 N. W. 345 Ann. Gas. Pincknay v. Burrage, 31 N. J. L.
1912C 952; Snow v. Rich, 22 21; Clute v. New York Cent. & H.
Utah 123, 61 Pac. 336. R. Co., 120 N. Y. 267, 24 N. E.
31. Tayloe v. Dugger, 66 Ala. 317; Ladd v. Byrd, 113 N.
444; Beard v. Ryan, 78 Ala. 37. Car. 466, 18 S. E. 666; McCorry
32. Robertson v. Wood, 15 v. King, 3 Humph. (Tenn.) 267,
Tex. 1, 65 Am. Dec. 140. 39 Am. Dec. 165; Hannon v.
33. Washington v. Norwood, Hounihan, 85 Va. 429, 12 S. E.
128 Ala. 391, 30 So. 405; Ogden 157; Titchenell v. TitcheneU, 74
v. Ogden, 60 Ark. 70, 46 Am. St. W. Va. 237, 81 S. E. 978.
Rep. 151, 28 S. W. 796; Meacham 34. See Pickett v. Doe, 74
V. Bunting, 156 111. 586, 28 L. R. Ala. 131; Hanson v. Ingwaldson,
§ 513]
Adveese Possessioiq-.
2013
immaterial that the life tenant asserts a claim to the
fee, since this gives the remainderman no right of entry
or action.^^ Even though the remainderman might,
if he chose, assert a forfeiture of the life estate by
reason of wrongful acts upon the part of the life tenant,
he is, it seems, under no obligation so to do, in order
to prevent the running of the statute."''" In one or two
states, however, it has been decided that, in view of a
statute giving to a reversioner or remainderman the
right to institute a proceeding to quiet title, it is in-
cumbent upon the remainderman so to do in case a
tenant in life makes a conveyance in fee, and that the
statute runs against the remainderman from the time
of such conveyance."'
One to whom a tenant for life transfers his estate,
whether the conveyance purports to convey a life
estate or a fee simple estate, acquires the estate of his
grantor, with a like right of possession, and conse-
quently the statute does not run in his favor as against
the remainderman, until after the termination of tlie
life.38
77 Minn. 533, 77 Am. St. Rep.
692. 80 N. W. 702.
35. Keith v. Keith, 80 Mo. 125.
125.
36. Wallingford v. Hearl, 15
Mass. 471; Mixter v. Woodcock,
154 Mass. 535, 28 N. E. 907;
Moore v. Luce, 29 Pa. 260, 72 Am.
Dec. 629; But in Green v. Horn,
207 N. Y. 489, 101 N. E. 430 it is
intimated that a "positive act
of disclaimer" might render the
life tenant's possession adverse.
37. Murray v. Quigley, 119
Iowa, 6, 97 Am. St. Rep. 276, 92
N. W. 869; Garrett v. Olford,
152 Iowa, 265, 132 N. W. 379;
Maurer v. Reifschneider, 89 Neb.
673, Ann. Gas. 1912C, 643. 132
N. W. 197; Criswell v. Criswell,
2 R. P.— 52
101 Neb. 349, 163 N. W. 197;
Contra, Armor v. Frey, 253 Mo.
447, 161 S. W. 829: Dallas Com-
press Co. v. Smith, 190 Ala. 423,
67 So. 289.
38. Winters v. Powell, 180
Ala. 425, 61 So. 96; Edwards v.
Bender, 121 Ala. 77, 25 So. 1010;
Moore v. Childress, 58 Ark. 510,
25 S. W. 833; Luquire v. Lee,
121 Ga. 624, 49 S. E. 834; Howard
v. Henderson, 142 Ga. 1. 82 S. E.
292; Maring v. Meeker, 263 111.
136, 105 N. E. 31; Schroeder v.
Bozarth, 224 111. 310, 79 N. E.
583: Gates v. Colfax Northern
Ry. Co., 177 Iowa. 690, 159 N. W.
456; Carpenter v. Moorelock, 151
Ky. 506, 152 S. W. 575; Mixter v.
Woodcock, 154 Mass. 535, 28 N. E.
201-1:
Real Peoperty.
[§ 513
If a tenant pur autre vie retains possession after
the death of the cestui que vie, his possession is usually
regarded as adverse to the remainderman from that
time."^ as would be, it seems, the possession of the
representatives of a tenant for life who hold over after
the death of the latter.
(h) Cotenants. As between cotenants, the
fact that A is in possession,^*^ or takes all the rents and
profits,*^ while B is not in possession and receives none
907; Hauser v. Murray, 256 Mo.
58, 165 S. W. 376; Westmeyer v.
Gallenkamp, 154 Mo. 28, 77 Am.
St. Rep. 747, 55 S. W. 2.31;
Green v. Horn, 207 N. Y. 489,
101 N. E. 430; Thompson v.
Simpson, 128 N. Y. 270, 28 x^J. E.
627; Smith v. Proctor, 139 N. 0.
314, 2 L. R. A. N. S. 172, 51 S.
E. 889; Cooley v. Lee, 170 N.
C. 18, 86 N. E. 720; Carpenter v.
Denoon, 29 Ohio St. 379; Rawls
V. Johns. 54 S. C. 394, 32 S. E.
451; Chambers v. Chattanooga
Union R. Co., 130 Tenn. 459, 171
S. W. 84; Davis v. Tebbs, 81 Va.
600; McDowell v. Beckham, 72
Wash. 224, 130 Pac. 350.
39. Mann v. Mann, 141 Cal.
326, 74 Pac. 995; Jones v. John-
son, 81 Ga. 293, 6 S. E. 181; Tur-
ner V. Hause, 199 m. 464, 65 N.
E. 445; Miller v. Ewing, 6 Cush.
(Mass.) 34; HaU v. French, 165
Mo. 430; Barrett v. Stradl. 73
Wis. ?.85, 9 Am. St. Rep. 795, 41
N. W. 439. In Day v. Cochran.
24 Miss. 261 the possession of a
tenant pur antre vie holding over
is stated not to be adverse.
Occasionally the cases suggest
a distinction between the holding
over of one who had never as-
serted a claim to more than a
life estate, and that of one who
entered under a conveyance from
a life tenant which purported
to give him a fee simple estate,
the former possession not being
regarded as adverse. See Irvine
V. Silbetts, 26 Pa. 477; Bannon
V. Brandon, 34 Pa. St. 263, 75
Am. Dec. 655; Gernet v. Lynn, 31
Pa. St. 94; Barrett v. Stradl, 73
Wis. 385. 9 Am. St. Rep. 795, 41
N. W. 439.
That if one has a life estate
merely by reason of the omission
of words of inheritance, the pos-
session of one to whom he under-
takes to convey in fee is adverse
to the reversioner after the life
tenant's death, see Jackson v.
Harsen, 7 Cow. (N. Y.) 323, 17
Am. Dec. 517; Henley v. Wilson,
77 N. Car. 216.
40. McClung v. Ross, 5 Wheat.
(U. S.) 116; Wheat v. Wheat, 190
Ala. 461, 67 So. 417; Ashley v.
Rector, 20 Ark. 375; Oglesby v.
Hollister, 76 Cal. 136, 9 Am. St.
Rep. 177, 18 Pac. 146; Russell v.
Stickney, 62 Fla. 569, 56 So. 691;
Blackaby v. Blackaby, 185 111. 94,
56 N. E. 1053; Stowell v. Lynch,
269 111. 437, 110 N. E. 51; Pedin
Y. Cavins, 134 Ind. 494, 39 Am.
St. Rep. 276, 34 N. E. 7; Bader
V. Dyer, 106 Iowa, 715, 68 Am.
St. Rep. 332, 77 N. W. 469; John-
513]
Ad^-ebse Possession.
2015
of the rents and profits, is not of itself sufficient to
start the running of the statute in favor of A. B has
a right to assume that A hokls j)Ossession, or other-
wise utilizes the property, with a full recognition of
the right of B to do the same if he so chooses, and B is
guilty of no laches in failing to assert his rights. But
though the exclusive possession of one cotenant, or
his exclusive receipt of the profits, does not of itself
serve to show that his possession is adverse to the
other or, as it is frequently expressed, that there is an
ouster by him of such other, it has been quite occasion-
ally asserted that the sole and uninterrupted possession
and receipt of profits by one cotenant, continued for a
long series of years, ^\^thout any interruption or
claim on the part of the cotenant, wall justify a
jury in inferring an actual ouster and adverse pos-
session.^- The distinction appears to be in effect, that
son V. Myer, 168 Ky. 430, 182 S.
W. 190; Mansfield v. McGinnis, 86
Me. 118, 41 Am. St. Rep. 532, 29
Atl. 956; Donohue v. Vosper, 189
Mich. 78, 155 N. W. 407; Also-
brook V. Eggleston, 69 Miss. 833,
13 So. 850; Warfield v. Lindell,
30 Mo. 272, 77 Am. Dec. 614;
Collier v. Gault, 234 Mo. 457, 137
S. W. 884; Carson v. Broady, 56
Neb. 648, 71 Am. St. Rep. 691, 77
N. W. 80; Jackson v. Tibbitts, 9
Cow, (N. Y.) 241; Youngs v.
Heffner, 36 Ohio St. 232; Tulloch
V. Worrall, 49 Pa. St. 133; Odom
V. Weathersbee, 26 S. C. 244, T
S. E. 890; Hubbard v. Wood's
Lessee 1 Sneed (Tenn.) 279;
Gilkey v. Peeler, 22 Tex. 663;
Ilolley V. Hawley, 39 Vt. 525;
Clark V. Beard, 59 W. Va. 669,
53 S. E. 597: Lagorio v. Dozier,
91 Va. 492, 22 S. E. 239.
41. McKneely v. Terry, 61 Ark.
527, 33 S. W. 95:!; Hill v. Cher-
okee Const. Co., 99 Ark. 84, 137
S. W. 553; Morgan v. Mitchell.
104 Ga. 596, 30 S. E. 792; Todd
V. Todd, 117 111. 92, 7 N. E.'583;
Hudson V. Coe, 79 Me. 83, 1 Am.
St. Rep. 288, 8 Atl. 249; Warfield
V. Lindell, 30 Mo. 272, 77 Am.
Dec. 121 idictum) ; Rodney v.
McLaughlin, 97 Mo. 426, 9 S. W.
726; Velott v. Lewis, 102 Pa. St.
327.
42. Johnson v. Toulmin, 18
Ala. 50; Kidd v. Borum, 181 Ala.
144, Ann. Cas. 191.5C. 1226, 61 So.
100; Oglesby v. Hollister, 76 Cal.
l;i6, 9 Am. St. Rep. 177. 18 Pac.
146; Burns v. Byrne, 45 Iowa,
287; Chambers v. Pleak, 6 Dana
(Ky.) 432; Harrington v. Wil-
liams, 173 Ky. 575, 191 S. W. 273
(senihle) ; Parker v. Proprietors
of Locks & Canals on Merrimack
River, 3 Mete. (Mass.) 91, 37 Am.
Dec. 121; Lefavour v. Homan, :5
Allen (Mass ) ?.',a- .Joyce v. Dyer,
2016
Real Property.
[§ 513
while the exclusive possession of one cotenant does not in-
volve an ouster of the other, so as to start the running of
the statute, the fact that one cotenant is in sole pos-
session for twenty, thirty, or forty years, without any
claim being made by the other, justifies a finding that
an ouster had taken place, ''because men do not ordi-
narily sleep on their rights for so long a period, and a
strong presumption arises that actual proof of the
original ouster has become lost by lapse of time."*^
While the sole possession of one cotenant is prima
facie not adverse to the other, it may, as has been
above indicated, become adverse to him, and whether
it has so become adverse is ordinarily a question of
fact.^* The cotenant in possession may deny the right
of the other either by express statement,^^ or by im-
189 Mass. 64, 109 Am. St. Rep.
603, 75 N. E. 81; Warfleld v. Lin-
dell, 38 Mo. 561, 90 Am. Dec. 443;
Lund V. Nelson, 89 Neb. 449, 131
N. W. 919; Jackson v. Whitbeck,
6 Cow. (N. Y.) 632, 16 Am. Dec.
454; Dobbins v. Dobbins, 141 N.
Car. 210, 10 L. R. A. (N. S.) 185,
115 Am. St. Rep. 682, 53 S. E.
870; Bolton v. Hamilton, 2 Watts
& S. (Pa.) 294, 37 Am. Dec. 509;
Rider v. Maul, 46 Pa. St. 376
(semUe) ; Rohrbach v. Sanders,
212 Pa. 636, 62 Atl. 27; Hubbard
V. Wood, 1 Sneed (Tenn.) 279;
Drewery v. Nelms, 132 Tenn. 254,
177 S. W. 946; Baber v. Baber, 121
Va. 740, 94 S. E. 209; Doe v.
Prosser, Cowp. 217; See Sagen &
Nelson v. Gudmanson, 164 Iowa,
440, 145 N. W. 954.
43. Lefavour v. Homan, 3
Allen (Mass.) 354.
44. Carpentier v. Mendenhall,
28 Cal. 484, 87 Am. Dec. 135;
Oglesby v. Hollister, 76 Cal. 136,
9 Am. St. Rep. 177, 18 Pac. 146;
Gill V. Fauntleroy, 8 B. Mon.
(Ky.) 177; La Fountain v. Dee,
110 Mich. 347, 68 N. W. 220;
Harmon v. James, 7 Sm. & M.
(Miss.) Ill, 45 Am. Dec. 296;
Warfleld v. Lindell, 38 Mo. 581,
90 Am. Dec. 443; Golden v. Tyer,
180 Mo. 196, 79 S. W. 143; Beall
V. McMenemy, 63 Neb. 70, 93 Am.
St. Rep. 427, 88 N. W. 134; Clark
V. Crego, 47 Barb. (N. Y.) 599;
Bolton V. Hamilton, 2 Walls & S.
(Pa.) 294, 37 Am. Dec. 509;
Keyser v. Evans, 30 Pa. St. 509;
Workman v. Guthrie, 29 Pa. St.
495, 72 Am. Dec. 654; PurceU v.
Wilson, 4 Gratt. (Va.) 16.
45. Brady v. Huff, 75 Ala. 80;
Ashley v. Rector, 20 Ark. 359;
Oglesby v. Hollister, 76 Cal. 136,
9 Am. St. Rep. 177, 18 Pac. 146;
Coogler V. Rogers, 25 Fla. 853, 7
So. 391; King v. Carmichael, 136
Ind. 20, 43 Am. St. Rep. 303, 35
N. E. 509; Gill v. Fauntleroy, 8
B. Mon. (Ky.) 177; Fenton v.
Miller, 108 Mich. 246, 65 N. W.
966. Thornton v. York Bank, 45
Me. 158. Phillips v. Gregg, 10
§ 513]
Adverse Possession.
201:
plication, as, for instance, by liis actual exclusion of the
otlier,^^^ or by utilizing all or part of the property in
such a way as to show an intention to make a per-
manent appropriation thereof to his o^\ti use.*^ But
the statute does not begin to run in his favor unless
the other acquires actual notice of the adverse char-
acter of his possession, or unless his assertion of an
exclusive claim, however made, is so open and notori-
ous that the otlier, exercising reasonable diligence,
would necessarily learn thereof.'**
Watts, (Pa.) 158, 36 Am. Dec.
158; Hubbard v. Wood, 1 Sneed
(Tenn.) 279; Church v. Waggon-
er, 78 Tex. 200, 14 S. W. 581.
46. Carpenter v. Webster, 27
Cal. 524; Norris v. Sullivan, 47
Conn. 474; Goodwin v. Bragaw,
87 Conn. 31, 86 Atl. 668; Hudson
V. Coe, 79 Me. 83, 1 Am. St. Rep.
288, 8 Atl. 249; Jordan v. Surgh-
nor, 107 Mo. 520, 17 S. W. 1009;
Humbert v. Trinity Church, 24
Wend. (N. Y.) 587; Forward v.
Deetz, 32 Pa. St. 69; Jefcoat v.
Knotts, 13 Rich. L. (S. C.) 50.
Hubbard v. Wood's Lessee 1 Sneed
(Tenn.) 279.
47. Roumillot v. Gardner, 113
Ga. 60, 53 L. R. A. 729, 38 S. E.
365; Laraway v. Larue, 63 Iowa,
407, 19 S. W. 242; Bennett v.
Clemence, 6 Allen (Mass.) 10;
Capen v. Leach, 182 Mass. 175, 65
N. E. 63; Warfield v. Lindell, 38
Mo. 561, 90 Am. Dec. 443; Dunlap
V. Griffith. 146 Mo. 283, 47 S. W.
917; Childs v. Kansas City. St. J.
& C. B. R. Co.— (Mo.)— , 17 S. W.
954; Zapf v. Carter, 70 N. Y. App.
Div. 395, 75 N. Y. Supp. 197; An-
nely v. De Saussure, 26 S. C.
497. 40 Am. St. Rep. 725. 2 S. E.
490. Cox V. Tompkinson. 39 Wash.
70, 80 Pac. 1005; Cochran v.
Cochran, 55 W. Va. 178, 46 S. E.
924.
48. Barr v. Gratz, 4 Wheat. (U.
S.) 213, 4 L. Ed. 553; McClung
V. Ross, 5 Wheat. (U. S.) 116,
5 L. Ed. 46; Packard v. Johnson,
57 Cal. 180; Unger v. Mooney, 63
Cal. 586, 49 Am. Rep. 100; Stokely
V. Conner, 69 Fla. 412, 68 So. 452;
Christopher v. Mungen, 71 Fla.
545, 71 So. 625; Grand Tower
Min., Mfg. & Transp. Co. v.
Gill, 111 111. 541; Stowell v.
Lynch, 269 111. 437, 110 N. E. 51;
Warfield v. Lindell, 30 Mo. 272, 77
Am. Dec. 614, 38 Mo. 581, 90 Am.
Dec. 443. Hynds v. Hynds, 253
Mo. 20, 161 S. W. 812; Culver v.
Rhodes, 87 N. Y. 348; Lodge v.
Patterson, 3 Watts (Pa.) 74, 27
Am. Dec. 335; Saunders v. Terry,
116 Va. 495, 82 S. E. 68; Vermont
Marble Co. v. Eastman. 91 Vt.
425, 101 Atl. 151.
That actual notice to the coten-
ant not in possession is unneces-
sary, see Van Gunden v. Virginia
Coal & Iron Co.. 52 Fed. 838. 3 C.
C. A. 294; Elder v. McClaskey, 70
Fed. 529, 17 C. C. A. 251; Kidd v.
Borum, 181 Ala. 144, Ann. Cas.
1915C 1226, 61 So. 100; Unger
V. Mooney, 63 Cal. 586, 49 Am.
Rep. 100; Oglesby v. Hollister, 76
2018
Real Peoperty.
[§ 513
The cotenant out of possession is not charged with
notice that the possession of the other is adverse to
him, so that the statute will run in favor of such other,
by the mere fact that the other has taken from a third
person a conveyance which purports to transfer
the whole j^roperty.^^ And, accepting the view which
is usually approved, that the purpose of the recording
acts is merely to afford protection to subsequent pur-
chasers,^*^ the record of such a conveyance to one co-
tenant is not sufficient to charge the other with notice
of the former's adverse claim. But while there are at
least two decisions to this etfect,^^ there are others
which give to such record the effect of charging with
Cal. 136, 9 Am. St. Rep. 177, 18
Pac. 146; Roberts v. Cox, 259 111.
322, 102 N. E. 204; Knowles v.
Brown, 69 Iowa, 11, 28 N. W.
409; Wilson v. Hoover, 154 Ky.
1, 156 S. W. 880; Greenhill v-
Biggs, 85 Ky. 155, 7 Am. St. Rep.
579, 2 S. W. 774; Fuller v.
Swensberg, 106 Mich. 305, 58 Am.
St. Rep. 481, 64 N. W. 463; Peck
V. Lockridge, 97 Mo. 549, 11 S.
W. 246; Dunlap v. Griffith, 146
Mo. 283, 47 S. W. 917; Culver v.
Rhodes, 87 N. Y. 348; Zapf v.
Carter, 70 N. Y. App. Div. 395. 75
N. Y. Supp. 197; Lodge v. Patter-
son, 3 Watts (Pa.) 74, 27 Am.
Dec. 335 Miller v. Cramer, 48 S.
C. 282, 26 S. E. 657; Humphreys
V. Edwards, 89 Tex. 512, 36 S. W.
333, 434; Mathews v. Baker, 47
Utah, 532, 155 Pac. 427; Baber v
Baber, 121 Va. 740, 94 S. E. 209;
Cox V. Tomnkinson, 39 W^sh. 70,
80. Pac. 1005; Clark v. Beard, 59
W. Va. 669, 53 S. E. 597; Roberts
V. Decker, 120 Wis. 102 (semble).
Compare Gracy v. Fielding, 71
Fla. 1, 70 So. 625: Kidd v.
Borum, 181 Ala. 144, Ann. Cas.
1915C 1226, 61 So. 100; Custer
V. Hall, 71 W. Va. 119, 76 S. B.
183.
It has been decided in a recent
case that if cotenants in posses-
sion have no knowledge of the
fact that there are other coten-
ants, their possession is to be
regarded as adverse to the latter
apart from any question of notice,
actual or constructive. Bourne v.
Wiele, 159 Wis. 340, 150 N. W.
420.
49. Inglis v. Webb, 117 Ala.
387, 23 So. 125; Donason v. Bar-
bero, 230 111. 138, 82 N. E. ff20.
Craig V. Cox, 255 111. 564, 99 N.
E. 647; Hignite v. Hignite, 65
Miss. 447, 4 So. 345; Culver v.
Rhodes, 87 N. Y. 348; Barrett v.
McCarty, 20 S. D. 75, 104 N. W.
907; Holley v. Hawley, 39 Vt. 532,
94 Am. Dec. 350.
50. Post § 567(a).
51. Cocks V. Simmons, 55 Ark.
104, 29 Am. St. Rep. 28, 17 S. W.
594: Holley v. Hawley, 39 Vt.
525.
§ 513]
Adveese Possession".
2019
notice thereof the tenant out of possession.''- Under
these latter decisions, a cotenant who refrains from
taking possession is bound to inspect the records in
order to ascertain whether the possession of the other
has become adverse to him.
If a cotenant makes a conveyance which purports
to convey not merely his undivided interest in the
land, but the entire interest therein, or in a part there-
of, and the grantee in the conveyance takes possession
accordingly, without any recognition of the rights of
the other cotenant, out of possession, the possession of
the grantee is regarded as adverse to the latter, and
the latter is charged with notice to this effect. He is
charged with notice of the fact that a person other
than his original cotenant is in possession of the
land, and he is also charged with notice of the char-
acter of the claim of such person. ' and cannot assume
that it is other than such as is indicated by the con-
veyance under which he holds."'-'' If, liowever, the
52. Ames v. Howes, 13 Idaho,
756, 93 Pac. 35; Puckett v. Mc-
Daniel, 8 Tex. Civ. App. 630, 28
S. W. 360; Morgan v. White, 50
Tex. Civ. App. 318, 110 S. W.
491; Craven v. Craven, 68 Neb.
459, 94 N. W. 604; McCann v.
Welch, 106 Wis. 142. 81 N. W.
996.
53. Jackson v. Huntington, 5
Pet. 402, 8 L. Ed. 170; Elder v.
McClaskey, 70 Fed. 529, 17 C. C.
A. 251. Fielder v. Childs, 73 Ala.
567; Brown v. Bocquin, 57 Ark.
97, 20 S. W. 813; Winterburn v.
Chambers, 91 Cal. 170, 27 Pac.
658; McDowell v. Sutlive, 78 Ga.
142, 2 S. E. 937; Bowman v.
Owens, 133 Ga. 49, 65 S. E. 156;
Waterman Hall v. Waterman, 220
in. 569. 77 N. E. 142; King v.
Carmichael, 136 Ind. 20, 43 Am.
St. Rep. 303, 35 N. E. 509; Blank-
enhorn v. Lenox, 123 Iowa, 67, 98
N. W. 556; Clarke v. Dirks, 178
Iowa, 335, 160 N. W. 31; Rose
v. Ware, 115 Ky. 420, 74 S. W.
188; Segelbohm v. Waldnef, 101
Kan. 156, 165 Pac. 049. Soper v.
Lawrence Bros. Co., 98 Me.
268, 99 Am. St. Rep. 397, 56 Atl.
908; Merryman v. Cumberland
Paper Co., 98 Md. 223, 56 Atl. 364;
Parker v. Proprietors of Locks &
Canals on Merrimack River, 3
Mete. (Mass.) 91, 37 Am. Dec.
121; Joyce v. Dyer, 189 Mass. 64,
109 Am. St. Rep. 603, 75 N. E.
81; Phipps V. Crowell, 224 Mass.
342, 112 N. E. 648: Fuller v.
Swensberg, 106 Mich. 305, 58 Am.
St. Rep. 481, 64 N. W. 463; Brig-
ham V. Reau, 139 Mich. 256, 102
N. W. 845; Hanson v. Ingwald-
son. 77 Minn. 533. 77 Am. St. Rep.
692, 80 N. W. 702; Sanford v.
2020
Real Property.
[§ 513
conveyance purports to be, not of the entire interest in
the property, but of the interest of the grantor merely,
the possession of the grantee is prima facie like that
of his grantor, that of a cotenant only, and not adverse
to the other cotenant, and the latter is justified in as-
suming this to be the case.^^
(i) Mortgagor and mortgagee. Even in those
states in which the mortgagee is regarded as having
the legal title, so that there might otherwise be room
for the application of the doctrine of adverse pos-
session as between the mortgagor and mortgagee.
Safford, 99 Minn. 380, 109 N. W.
819; Eastman v. Hinton, 86 Miss.
604, 109 Am. St. Rep. 726, 38 So.
779; Foulke v. Bond, 41 N. J. L.
527; Baker v. Trujillo De Armijo,
17 N. M. 383, 128 Pac. 73; Sweet-
land V. Buell, 164 N. Y. 541, 79
Am. St. Rep. 676, 58 N. E. 663;
Wheeler v. Taylor, 32 Ore. 421,
67 Am. St. Rep. 540, 52 Pac. 183;
Culler V. Motzer, 13 Serg. & R.
(Pa.) 356, 15 Am. Dec. 604; Sud-
duth V. Sumeral, 61 S. C. 276, 85
Am. St. Rep. 83, 39 S. E. 534:
Weisinger v. Murphy, 2 Head
(Tenn.) 679; Virginia Coal &
Iron Co. V. Hylton, 115 Va. 418,
Ann. Cas. 1915A 741. 79 S. E.
337; Church v. State, 65 Wash.
50, 117 Pac. 711; Roberts v.
Decker, 120 Wis. 102, 97 N. W.
519. In North Carolina a differ-
ent view has apparently been
taken. Hardee v. Weathington,
130 N. C. 91, 40 S. E. 855; Bullin
V. Hancock, 138 N. C. 198, 50 S.
E. 621; Roscoe v. Roper Lumber
Co., 124 N. C. 42, 32 S. E. 389.
If there is no change of posses-
sion after the conveyance, as
when the person who held as
tenant under the grantor con-
tinues to hold under the grantee,
the other cotenant is not charge-
able with notice that the posses-
sions has become adverse. Pick-
ens V. Stout, 67 W. Va. 422, 68
S. E. 354; Long v. Morrison, 251
III. 143, 95 N. E. 1075. And so
when a cotenant makes a con-
veyance of the whole, even though
this be recorded, but he retains
the exclusive possession. Brasher
V. Taylor, 109 Ark. 281, 159 S. W.
1120.
54. Bath V. Valdez, 70 Cal. 350,
7 Pac. 487; Gracy v. Fielding, 71
Fla. 1, 70 So. 625; Grand Tower
Min., Mfg. & Transp. Co. v. Gill,
111 111. 541; Stevens v. Wait, 112
111. 544; Moore v. Antill, 53 Iowa,
612, 6 N. W. 14; Curtis v. Barber,
131 Iowa, 400, 117 Am. St. Rep.
425, 108 N. W. 755; Lefavour v.
Haman, 3 Allen (Mass.) 356; See
McQuiddy v. Ware, 67 Mo. 74;
Woods V. Banks, 14 N. H. Ill;
Foulke V. Bond, 41 N. J. L. 547;
Sharp V. Brandow, 15 Wend. (N.
Y.) 597; Edwards v. Bishop, 4 N.
Y. 64. So in the case of a con-
veyance in terms of an undivided
interest. Wilson v. Storthz, 177
Ark. 418, 175 S. W. 45.
§ 513]
Adverse Possession.
2021
it is recognized that the possession of the mortgagor
is not adverse to the mortgagee unless he denies the
latter 's rights in an open and notorious manner,^^
and the possession of the mortgagor's transferee is
likewise not adverse to the mortgagee.
The possession of the mortgagee before default
is regarded as in behalf of the mortgagor, to whom he
must account for the rents and profits;"'*^ and is con-
sequently not adverse, in the absence of a denial of the
mortgagor's rights.^" But if the mortgagee takes i:)os-
session after condition broken, for the purpose of
realizing his security, his possession is presmned to be
adverse, or, as it is ordinarily expressed in jurisdic-
tions where the legal title is in the mortgagee, a court
of equity will, in such case, apply the analogy of the
statute of limitations as against the right of tlie mort-
gagor to redeem, in the absence of any recognition by
him of the mortgagor's title. ^^
55. Gafford v. Strauss, 89 Ala.
282, 7 L. R. A. 568, 18 Am. St.
Rep. Ill, 7 So. 248. Whittington
V. Flint, 43 Ark. 504, 51 Am. Rep.
572; Norrls v. He, 152 111. 190, 43
Am. St. Rep. 233, 38 N. E. 762;
Holmes v. Turner's Falls Co., 150
Mass. 535, 6 L. R. A. 283, 23 N.
E. 305; Chouteau v. Riddle, 110
Mo. 366, 19 S. W. 814; Tripe v.
Marcy, 39 N. H. 439; Colton v.
Depew, 60 N. J. Eq. 454, 83 Am.
St. Rep. 650, 46 Atl. 728; Martin
V. Jackson, 27 Pa. St. 504, 67 Am.
Dec. 489; Creigh's Heirs v. Hen-
son, 10 Gratt. (Va.) 231; Flynn
V. Lee, 31 W. Va. 487, 7 S. E. 430.
56. See post § C13(c).
57. Warder v. Enslen, 73 Cal.
291, 14 Pac. 874; Jones v.
Foster, 175 III. 459, 51 N. E. 862,
Green v. Turner, 38 Iowa, 112;
McPherson v. Hayward, 81 Me.
329, 17 Atl. 164; Holmes v. Tur-
ner's Falls Co., 150 Mass. 535, 6
L. R. A. 283, 23 N. E. 305; Anding
V. Davis, 38 Miss. 574, 77 Am. Dec.
658; Kip v. Hirsh, 53 N. Y. Super.
Ct. 1; Robinson v. Fife, 3 Ohio
St. 551; West v. Middlessex Bank-
ing Co., 33 S. D. 465, 146 N. W.
598.
58. Hughes v. Edwards, 9
Wheat (U. S.) 489, 6 L. Ed. 142;
Byrd v. McDaniel, • 33 Ala. 18;
Tibbs V. Reed, 105 Ky. 331, 49
S. W. 6, (semble) ; Munro v.
Barton, 98 Me. 250, 56 Atl. 844:
Ayres v. Waite, 10 Cush. (Mass.)
72; Stephens v. Dedham Institu-
tion, 129 Mass. 547; Nelson v.
Ratliff, 72 Miss. 656, 18 So. 487:
Essex V. Smith, 97 Neb. 649, 150
N. W. 1022; Hall v. Hooper, 47
Neb. Ill, 66 N. W. 33. Clark v.
Clough, 65 N. H. 43, 23 Atl. 521;
Hubbell V. Sibley, 50 N. Y. 468;
Knowlton v. Walker, 13 Wis. 295.
2022 Real Peoperty. [§ 513
(j) Mortg^agor and foreclosure purchaser.
There are decisions that the possession of tho mort-
gagor is not adverse as against the purchaser at fore-
closure sale,^^ a view which appears to harmonize with
the like view which has lieen taken with reference to
the possession of a judgment debtor after sale under
execution on the judgment.'^*'
The possession of the purchaser under an in-
valid foreclosure sale being in effect that of an assignee
of the mortgage,**^ the right of redemption as against
him will also ordinarily be barred after the statutory-
period.*'^
(k) Surviving spouse and heirs. If, upon the
death of a tenant in fee simple, his widow has, by the
law of that jurisdiction, the right to hold possession of
the land until the assignment of her dower, the statute
of limitations cannot run in her favor as against the
heirs or devisees, since they have no right of entry or
action,''"^ and it is immaterial tliat they might, if they
59. Bosley v. Stewart, 140 Co., 33 S. D. 465, 146 N. W. 598.
Iowa, 101, 117 N. W. 1103; Els- 63. Robinson v. Allison, 124
worth V. Eslick, 91 Kan. 287, 137 Ala. 325, 27 So. 461; Padgett v.
Pac. 973; Cook v. Travis, 20 N. Y. Norman, 44 Ark. 490; Jarrett v.
400; Neilson v. Grignon, 85 Wis. Jarrett, 113 Ark. 134, 167 S. W.
550, 55 N. W. 890. Contra, Garren 482; Riggs v. Girard, 133 111. 619.
V. Fields, 131 Ala. 304, 30 So. 775. 24 N. E. 1031; Renter v. Stuck-
60. Bradford v. Russell, 79 Ind. art, 181 111. 529, 54 N. E. 1014;
64; Jones v._ Lickliter, 154 Ky. Westmeyer v. Gallenkamp, 154
848, 159 S. W. 652; Snowden v. Mo. 28, 55 S. W. 231, 77 Am. St.
McKinney, 7 B. Mon. 258; Jackson Rep. 747; Meddis v. Kenney,
V. Sternbergh, 1 Johns. Cas. 153; 176 Mo. 200, 98 Am. St. Rep. 496;
Swift V. Agnes, 33 Wis. 228. Wofford v. Martin,— Mo.— , 183 S.
61. Post § 654. W. 603; Larson v. Anderson,
62. Chickering v. Failes, 26 74 Neb. 361, 104 N. W. 925; Reed
in. 507; Jellison v. Halloran, 44 v. Hackney, 69 N. J. L. 27, 54
Minn. 199, 46 N. W. 332; Miner Atl. 229: Perkins v. Perkins,—
V. Beekman, 50 N. Y. 337; Hamm Tex. Civ. App.— , 166 S. W. 915:
V. McKenny, 73 Ore. 347, 144 Pac. Hulvey v. Hulvey, 92 Va. 182, 23
435; Houts v. Hoyne, 14 S. Dak. S. E. 233. See editorial note 14
176; West v. Middlesex Banking Harvard Law Review, 149.
§ 513] Adverse PossEvSstox. 2023
choose, have her dower assigned.^-' And the case is
the same after dower is assigned. She is in the
position of a life tenant, and the statute cannot run
during her life as against the reversioners or remain-
derman.*'^
Even though the widow's possession is otherwise
without right, it is, apparently, regarded prima facie
as by permission of, or in behalf of, the heirs, and so
not adverse to them,''" but it may become adverse by
reason of her repudiation of the rights of the heirs."'^
If a widow marries again, and the second husband
lives with her on the land of her first husbtaid, the
possession, even if conceded to be in the second
husband, is prima facie not adverse to the children of
the first marriage, so as to cause the statute of limi-
tations to run in his favor.*'^ He may, however, it has
been decided, so assert a right of possession, under
particular circumstances, that the statute will so run.'^^
64. See Foy v. Wellborn, 112 Givens v. Ott, 222 Mo. 395, 121 S.
Ala. 160, 20 So. 604. W. 23.
65. Neely v. Martin, 126 Ark. 67. Hays v. Lemoine, 156 Ala.
1, 189 S. W. 182; Green v. Ellis. 465, 47 So. 97; Brinkley v. Taylor,
145 Ga. 241, 88 S. E. 976; Swear- 111 Ark. 305, 163 S. W. 521;
engln v. Stafford, — Mo. — , 188 S. Hogan v. Kurtz, 1 MacArth.
W. 97; Graves v. Causey, 170 N. C.)135; Williams v. Thomas, 65
C. 175, 86 S. E. 1030; Cockrell v. Iowa, 183, 21 N. W. 509; Munroe
Curtis, 83 Tex. 105, 18 S. W. 436. v. Wilson, 68 N. H. 580, 41 Atl.
66. Brinkley v. Taylor, 111 240; Colgan v. Pellens, 48 N. J.
Ark. 305, 163 S. W. 521; Sloss- L. 27, 2 Atl. 633; Davis v. Dick-
Sheffield Steel & Iron Co. v. Mc- son, 92 Pa. St. 365; Humphreys
Cullough, 177 Ala. 272, 59 So. 658; v. Edwards, 89 Tex. 512, 36 S. VV.
Frazer v. Frazer, 1 Mete. (Ky.) 333.
593; Moore v. Gulley, 30 Ky. L. 68. Johnson v. Oldham, 126
Rep. 442, 98 S. W. 1011. (See Ala. 309, 28 So. 487, 85 Am. St.
Bush v. Fitzgeralds,— Ky.— 125 S. Rep. 30; Dewitt v. Shea, 20.! 111.
W. 716); Shoultz v. Lee, 260 Mo. 923, 67 N. E. 761, 96 Am. St. Rep.
719, 168 S. W. 1146; Reed v. 311; Livingston v. Pendergast,
Hackney, 69 N. .1. L. 27, 54 Atl. 34 N. H. 544.
229; Larson v. Anderson, 74 Neb. 69. Munroe v. Wilson, 68 N. H.
361, 104 N. W. 92.-); Hall v. Ma- 580, 41 Atl. 240.
thias, 4 Watts & S. 331. Contra,
2024 Eeal Peopeety. [§ 513
If, upon the death of a tenant in fee simple, her
surviving husband has a life estate in the land, the
statute cannot run in his favor as against the .heirs or
devisees, since they have no right of entry or actionJ^
If the surviving husband has no estate in the land,
whether the statute of limitations will run in his
favor depends on whether his possession is to be re-
garded as adverse to the heirs. There are decisions
to the effect that it is prima facie adverse,'''^ and also
decisions to the contrary.'^^
(1) Parent and child. A child who is upon
the land of his parent may be there, and frequently
is there, as a licensee merely, in which case he is not
in possession.'''^ And if he is in possession his jDosses-
sion is apt to be permissive merely, the possession of
a tenant, and so not adverse to the parent.'^* The
child may, however, be in possession purely in his
own right, and not as the licensee or tenant of the
parent,'''^ as for instance when he holds under an oral
gift,"^^ and in such case the statute will ordinarily run
in his favor.
It has been judicially stated that the relationship
of parent and child raises a presumption that the
parent's possession of land belonging to the child is
70. Ante, § 506. Hunt v. Hunt, 3 Mete. (Mass.)
71. Pattison v. Dryer, 98 Mich. 175, 37 Am. Dec. 130; O'Bryan v.
564, 57 N. W. 814; Norwood v. Allen, 108 Mo. 227, 32 Am. St.
Totten, 166 N. C. 648, 82 S. E. Rep. 595, 18 S. W. 892; Haggard
951. V. Martin, — Tex. Civ. App. — , 34
72. Marshall v. Pierce, 12 N. H. S. W. 660.
127; Jackson v. Cairns, 20 Johns. 75. Lane v. Copley, 1 Root
(N. Y.) 301. (Conn.) 68; New Haven Trust
73. See Butler v. Butler, 133 Co. v. Camp, 81 Conn. 539, 71
Ala. 377, 32 So. 579; Wyatt v. Atl. 788; Roberts v. Roberts, 2
Elam, 23 Ga. 201; Hume v. Hop- McCord L. (S. C.) 268, 13 Am.
kins, 140 Mo. 65, 41 S. W. 784. Dec. 721.
74. See Ellsworth v. Hale, 33 76. Wilson v. Campbell, 119
Ark. 633; Brettman v. Fischer, Ind. 286, 21 N. E. 893. Cyrus v.
216 111. 142, 74 N. E. 777: Wells Holbrook, 32 Ky. L. Rep. 466, 106
v. Head. 12 B. Mon. (Ky.) 170; S. W. 300; Malone v. Malone. 88
§ 513]
Adverse Possession.
2025
not adverse to the latter."" But it may be questioned
whether there is properly any such presumption. The
relationship is merely one of the considerations tend-
ing to show that the possession is permissive, and the
weight to be imputed to this consideration would vary
with the age of the child and the other circumstances
of the case.'^^ The courts, however, while recognizing
that the parent's possession may be adverse to the
children,'^'' have occasionally tended to give considerable
weight to the relationship as showing the contrary.^*'
And they ordinarily hold that the statute does not run
in favor of a surviving parent as against liis children,
some or all of whom are minors at the time of his
entry, he being in such case regarded as upon the land
in the capacity of natural guardian or bailiff.^^
(m) Husband and wife. At common law, as be-
tween husband and wife, even though one were in the
Minn. 418, 93 N. W. 605; Grimes
V. Bryan, 149 N. C. 248, 63 S. E.
106. Contra, Boykin v. Smith, 65
Ala. 294.
77. O'Boyle v. McHugh, 66
Minn. 390, 69 N. W. 37; CoUins
V. Colleran, 86 Minn. 199, 90 N.
W. 390; Roberts v. Roberts, 2 Mc-
Cord L. (S. Car.) 268, 13 Am. Dec.
721.
78. See Silva v. Winpenny, 136
Mass. 253; Gifford v. Gifford, 100
Mich. 258, 58 N. W. 1000; AHen
V. Allen, 58 Wis. 202. 210, 16 N.
W. 610; Dunham v. Townshend,
118 N. Y. 281, 23 N. E. 367; 10
Harv. Law Rev. 376; 24 Harv.
Law Rev. 495.
79. McCarty v. Colton, 134
Iowa. 658, 108 N. W. 217; Fox
v. Windes, 127 Mo. 502, 48 Am.
St. Rep. 648, 30 S. W. 323; Clark
V. Lane, 2 N. J. L. 417; Livings-
ton V. Pendergast, 34 N. H. 544;
Scarboro v. Scarboro, 122 N. C.
234, 29 S. E. 352; Douglas v.
Irvine, 126 Pa. 643, 17 Atl. 802.
80. White v. White, 52 Ark.
188, 12 S. W. 201; Reed v. Smith,
125 Cal. 491, 58 Pac. 139; TuUy
V. Tully, 137 Oal. 60, 69 Pac. 700;
Parker v. Salmons, 101 Ga. 160,
65 Am. St. Rep. 29L 28 S. E. 681;
Horn V. Metzger, 234 111. 240, 84
N. E. 893; Kirby v. Kirby, 236
111. 255, 86 N. E. 259; Nugent v.
Peterman, 137 Mich. 646, 100 N.
W. 895; Allen v. Allen, 58 Wis.
202, 16 N. W. 610.
81. McQueen v. Fletcher, 77
Ga. 444; Wilson v. Sutton,— Ky.
— , 154 S. W. 394; Carpenter v.
Carpenter, 126 Mich. 217, 85 N. W.
576; Livingston v. Pendergast, 34
N. H. 544; Lawrence v. Lawrence,
14 Ore. 77, 12 Pac. 307; Cook v.
Nicholas, 4 Watts & S. (Pa.) 331;
Hall & Mathias, 4 Watts & S.
(Pa.) 331; Clark v. Trindle, 52
Pa. St. 492; Searle v. Laraway,
2U26
Eeal Pkoperty,
[§ 513
exclusive occupation of the other's land, the statute
could not run, since they were regarded as constituting
but one person.^- But in so far as this common-law doc-
trine has been altered by modern legislation, there
seems to be no reason why the statute should not run
in favor of one as against the other, provided the
former is in exclusive possession of the other's land,
and his possession is hostile or adverse to the other.^^
And there is obviously, after a divorce has taken place,
no such identity of persons as can prevent the run-
ning of the statute. ^^
When the husband and wife live together on land
belonging to the one or the other of them, the pos-
session is ordinarily in the one who has the legal
title, and the other is in the position of a licensee, and
the statute will consequently not run in favor of the
latter as against the former.^^ But there are oc-
27 R. I. 557, 65 Atl. 269; Thomas
V. Thomas, 2 Kay & J. 79; How-
ard V. Shrewsbury, L. R. 17 Eq.
397; In re Hobbs, 36 Ch. Div.
553.
82. See Bell v. Bell, 37 Ala.
536; Skinner v. Hale. 76 Conn.
223; McArthur v. Egleson, 3 Ont.
Appr 577. In Cervantes v. Cer-
vantes, — Tex. Civ. App. — , 76 S.
W. 790, it was decided that the
wife's possession was, under the
community system there in force,
the possession of the husband, so
that she could not acquire his
property -by adverse possession,
even though deserted by him.
83. See Trammel v. Craddock.
93 Ala. 450, 9 So. 815; Lide v.
Park, 135 Ala. 131, 93 Am. St.
Rep. 17, 33 So. 175; Evans v.
Russ. 131 Ark. 335, 198 S. W.
518; Union Oil Co. v. Stewart, 158
Cal. 149. 110 Pac. 313; Warr v.
Honeck, 8 Utah, 61, 29 Pac. 1117.
84. Ross v. McCann, 145 Mo.
271, 46 S. W. 955; Ferring v.
Fleischman— (Tenn.)— , 39 S. W.
19; Kelly v. Kelly. — Tenn. — ,
58 S. W. 870. See House v. Wil-
liams, 16 Tex. Civ. App. 122, 40
S. W. 414.
85. Gafford v. Strauss, 89 Ala.
283 7, L. R A. 568, 18 Am. St.
Rep. Ill, 7 So. 248; Stiff v. Cobb,
126 Ala. 381, 85 Am. St. Rep. 38,
28 So. 402; Tumlin v. Tumlin,
195 Ala. 457, 70 So. 254; Mauldin
V. Cox, 67 Cal. 387, 391, 7 Pac.
264; Bias v. Reed, 169 Cal. 387,
145 Pac. 516; Green v. Jones, 169
Ky. 146, 183 S. "W. 488; Claughton
V. Claughton, 70 Miss. 384, 12 So.
340; Boynton v. Miller, 144 Mo.
681, 46 S. W. 754; Hovorka v.
Havlik. 68 Neb. 14, 110 Am. St.
Rep. 387, 93 N. W. 990; Springer
V. Young, 14 Ore. 280, 12 Pac.
400; Reagle v. Reagle. 179 Pa. St.
89, 36 Atl. 191; Berry v. Wied-
§ 51o] Advek^e Possession. 2027
casio'nal decisions to the apparent effect that if the
wife has color of title to the land, the statute will run
in her favor as against the husband, he not asserting
his title.^'^
In so far as the legal identit\* of husband and
wife is still recognized, it does not seem that the
mere fact of the husband's wrongful abandonment of
the ^^'ife should enable the wife to acquire title to his
land by the statute of limitations,"'" but there are
occasional suggestions, judicial and extra judicial, that
the fact of desertion may have an effect in this regard,^**
apart from that of giving to the wife the possession
which, before the departure of the husband, was pre-
sumably in him as having the legal title.
man, 40 W. Va. 36, 52 Am. St. 87. See McArthur v. Egleson,
Rep. 866, 20 S. E. 817. 3 Ont. App. 577; Cervantes v.
86. Hartman v. Nettles, 64 Cervantes — (.Tex. Civ. App.) — , 76
Miss. 495, 8 So. 234; Massey v. S. W. 790.
Rimmer, 69 Miss. 667, 13 So. 88. Union Oil Co. v. Stewart,
832; Mcpherson v. McPherson, 75 158 Cal. 149, 110 Pac. 313; Warr
Neb. 830, 121 Am. St. Rep. 835, v. Honeck, 8 Utah, 61, 29 Pac.
106 N. W. 991; Potter v. Adams, 1117, (invalid divorce). Editorial
125 Mo. 118, 46 Am. St. Rep. 478, notes, 10 Columbia Law Rev.
28 S. W. 490 isemble). See Mattes 775; 24 Harvard Law Rev. 316.
V. Hall, 21 Cal. 352, 132 Pac. 295.
CHAPTER XXIV.
PRESCRIPTION FOR INCORPOREAL THINGS.
§ 514. General considerations.
51.5. Restrictions on application of the doctrine.
516. Who may acquire right by prescription.
517. AVhat rights may be acquired by prescription.
518. Actual user necessary.
519. Adverse character of user.
520. Necessity of claim of right.
521. Necessity of notice to landowner.
522. Necessity of exclusive user.
523. Necessity of peaceable user.
524. Necessity of right of action.
525. Continuity of user.
526. Cessation of adverse character.
527. Interruption by landowner.
528. Protests and interference by landowner.
529. Tacking.
530. Personal disabilities.
531. Nature and extent of prescriptive right.
532. Reciprocal prescriptive rights.
533. Prescription for highways.
(a) General considerations.
(b) User by public necessary.
(c) Adverseness of user.
(d) Necessity of claim of right.
(e) Necessity of notice of user.
(f) Continuity of user.
(g) Width of highway.
§ 514. General considerations. Though the Statute
of Westminster I., establishing a date back of which
the pleader could not go/ applied to actions for the
recovery of the land only, and not to those for the
recovery of incorporeal tilings, "the judges, with that
assumption of legislative authority which has at times
1. Ante, § 500.
(2028)
<§ 514] Peescription. 2029
characterized our judicature, proceeded to apply the
rule as to prescription established b}' the statute to in-
corporeal hereditaments, and, among others, to ease-
ments. "^ Subsequently, when, by the Statute of 82
Hen. VIII. c. 2, and 21 Jac. I. c. 16, the time for bring-
ing a writ of right or a possessory action to recover
land was reduced to sixty and twenty years, respec-
tiveh% it might have been expected that the judges
would as in the case of the earlier act, apply the anal-
og}' of these acts to incorporeal things. This, however,
it seems, they did not do,"^ but they effected the same end
by the adoption of the fiction that a grant of the right
would be presumed if it had been exercised for a period
of twenty years , this doctrine of a lost grant being
in reality prescription, under another name, shortened
in analogy to the period of limitation fixed by the
Statute of James.* In the case of prescrii)tion, as it
existed by analogy to the early statute, the exercise of
the right from the date named conferred an unim-
peachable title. Whether this presumption of a lost
grant, on the other hand, had a like effect, that is,
whether it was a conclusive presumption, or could be
rebutted by evidence that there was no such grant, is
a question on which there was great doubt. In prac-
tice it seems to have been the custom for the court to
instruct the jury to find the existence of such a grant,
even though there was evidence to show that it did not
exist. Eventually the Statute of 2 & 3 Wm. IV. c. 71
(A. D. 18o2), termed the ''Prescription Act," was
2. Cockburn, C. J., in Angus determining the period of "im-
V. Dalton, 3 Q. B. Div. So, 104. memorial user" for the purpose
3. Gale, Easements (8th Ed.), of prescription, see Yard v. P'ord,
191, citing statements to that 2 Wms. Saund. 175, note; Gale,
effect in Angus v. Dalton, 4 Q. B. Easements, 190; Coolidge v.
Div. at pages 170, 199, per Learned, 8 Pick. (Mass.) 504.
Thesiger and Brett, L. J., and in 4. Gale, Easements, 192. See
6 Aipp. Gas. at page 788, per Fry, Coolidge v. Learned, 8 Pick.
J. But that the periods fixed (Mass.) 504.
by these statutes was applied in
2 R. P.— 53
2030
Real Property.
[§ 514
passed, "with the view," it is said, "of putting an end
to the scandal on the administration of justice which
arose from thus forcing the consciences of juries."^
In this country the courts have usually followed the
analogy of the statute of limitations applicable to
actions for the recovery of land, with the effect that
one who has exercised as of right a user in another's
land for the statutory period, is regarded as having a
right of user to that extent.^ And while, quite fre-
quently, it is said that from such user a grant will
be presumed, the presumption is in effect a positive
rule of law, and evidence that no grant was made would
be immaterial/ In other words, it is conclusively pre-
sumed from the landowner's acquiescence for the statu
tory period in the other's user of his land, he having
the right and power to stop such user, that the user
is a rightful user.^
5. Cockburn, C. J., in Angus
V. Dalton, 3 Q. B. 105. And see
Bright V. Walker, 1 Cromp. Mees.
& Ros. 211, per Parke, B., and
editorial note 29 Harv. Law Rev.
88.
6. Legg V. Horn, 45 Conn.
409; Coolidge v. Learned, 8 Pick.
(Mass.) 504; Melvin v. Whiting,
10 Pick. (Mass.) 295; Mueller v.
Fruen, 3 Minn. 273; Carlisle v.
Cooper, 19 N. J. Eq. 256; Cobb
V. Davenport, 32 N. J. L. 369;
Corning v. Gould, 16 Wend. (N.
Y.) 531; Nicholls v. Wentworth,
100 N. Y. 455, 3 N. E. 482; Krier's
Private Road, 73 Pa. St. 109.
7. Smith V. Hawkins, 110 Cal.
122, 42 Pac. 453; Coolidge v.
Learned, 8 Pick. (Mass.) 504;
Wallace v. Fletcher, 30 N. H.
434; L6hig;h Valley R. Co. v.
McFarlan, 43 N. J. L. 605; Ward
v. Warren, 82 N. Y. 265; Pavey
V. Vance, 56 Ohio St. 162, 46 N,
E. 898; Okeson v. Patterson, 29
Pa. St. 22; Carter v. Tinicum
Fishing Co. 77 Pa. St. 310;;
Lewis V. San Antonio, 7 Tex.
288; Tracy v. Atherton, 36 Vt.
503; Cornett v. Rhudy, 80 Va.
710; Tyler v. Wilkinson, 4 Mason
397, Fed Cas. No. 14312. There
are suggestions to the contrary
in Lanier v. Booth, 50 Miss. 410;
Parker v. Foote, 19 Wend. (N.
Y.) 309.
8. See Sturges v. Bridgman,
11 Ch. D. 852, 863; Dalton v.
Angus, 6 App. Cas. 740, 773, 803,
823; Warren v. Jacksonville, 15
111. 236; Gayetty v. Bethune, 14
Mass. 49, 7 Am. Dec. 188; Cobb
V. Davenport, 32 N. J. L. 369;
Wallace v. Fletcher, 30 N. H.
434; Jones v. Crow, 32 Pa. St.
398; Lamb v. Crosland, 4 Rich.
Law (S. C.) 536; Dodge v. Stacy,
39 Vt. 559.
§ 515]
Pkescription.
2031
§ 515. Restrictions on application of the doctrine.
It is generally recognized that no right can be ac-
quired by prescription to maintain a public nuisance.^
So it has been decided that there can be no prescriptive
right to maintain an obstruction in the highwaj^^" or
to poUute a stream to the detriment of the public." In
a number of cases, however, it has been decided that one
may acquire by prescription a right to use another's
land although such use is incidental to the maintenance
of a public nuisance.^2 For instance, a prescriptive
right to overflow land has been recognized, although the
overflow was effected by the maintenance of a dam in
9. Kissel V. Lewis, 156 Ind.
233, 59 N. E. 478; Dygert v.
Schenck, 23 Wend. (N. Y.) 446,
35 Am. Dec. 576; North Point
Consol. Irrigation Co. v. Utah
& S. L. Canal Co., 16 Utah, 246,
40 L. R. A. 851, 67 Am. St. Rep.
607, 52 Pac. 168. See cases cited
in note to Leahane v. Cochrane.
53 L. R. A. 891.
10. Pierson v. Elgar, 4 Cranch
(U. S.) 454; Harn v. Common
Council of Dadeville, 100 Ala.
199, 14 So. 9; Blackman v.
Mauldin, 164 Ala. 337, 27 L. R.
A. (N. S.) 670, 51 So. 23 (navi-
gable stream); Fresno v. Fresno
Canal & Irrigation Co., 98 Cal.
179, 32 Pac. 943; Wolfe v. Town
of Sullivan, 133 Ind. 331, 32 N.
E. 1017; Lewiston v. Booth, 3
Idaho, 692, 34 Pac. 809; Hynea
V. Brewer, 194 Mass. 435, 9 L.
R. A. (N. S.) 598, 80 N. E. 503;
Veazie v. Dwinel, 50 Me. 479
(floatable stream) ; Morton v.
Moore, 15 Gray (Mass.) 573;
New Salem v. Eagle Mill Co.,
138 Mass. 8; Burbank v. Fay,
65 N. Y. 57; Dead wood v. Hursh,
30 S. D. 450, 138 N. W. 1122.
Contra, semble. Moon v. Mills,
119 Mich. 298, 75 Am. St. Rep.
390, 77 N. W. 926; Chase v. Mid-
dleton, 123 Mich. 647, 82 N. W.
612.
11. Bowen v. Wendt, 103 Cal
236, 37 Pac. 149; Piatt Bros. v.
Waterbury, 72 Conn. 531, 48 L. R.
A. 691, 77 Am. St. Rep. 335, 45
Atl. 154; Woodyear v. Schaefer,
57 Md. 1, 40 Am. Rep. 419; Mar-
tin V. Gleason, 139 Mass. 183,
29 N. E. 664; Attorney General
V. Grand Rapids, 175 Mich. 503,
50 L. R. A. (N. S.) 473, Ann.
Cas. 1915A 968, 141 N. W. 890;
Shelby v. Cleveland Mill & Power
Co., 155 N. C. 196, 71 S. E. 218;
Owens V. Lancaster, 182 Pa. 257,
37 Atl. 858; North Point Consol.
Irrigation Co. v. Utah & S. L.
Canal, 16 Utah, 246, 40 L. R. A.
851, 67 Am. St. Rep. 607, 52 Pac.
168.
12. See Hudson v. Dailey, 156
Cal. 617, 105 Pac. 748; Felton v.
Wedthoff, 185 Mich. 72, 151 N.
W. 727; Charnley v. Shawano
Water Power & River Improve-
ment Co., 109 Wis. 563. G:i L. R.
A. 895, 85 N. W. 507.
2032 Eeal Property. [§ 515
a highway, a public nuisance/^ and even though the
collection of such a body of stagnant water constituted
a public nuisance by reason of exhalations therefrom.^^
But in so far as the owner of the land suffers a special
damage in such case from the condition which gives to
the structure the character of a public nuisance, he
does not, by lapse of time, lose his right to immunity
from the nuisance. So while the owner of the flooded
land may, by lapse of time, lose the right to object
to the flooding of the land, he does not lose the right,
as one of the jDublic, to object to the unhealthy exhala-
tions caused thereby.^^ If what would otherwise be a
public nuisance is legalized by the public authorities
it loses its character of a public nuisance, and conse-
quently prescription might, it would seem, run as
against an individual as regards its maintenance, to the
same extent as in the case of any private nuisance.^"
In accordance with the maxim nullum tempus oc-
currit regi, a right of user cannot be acquired by
prescription in land belonging to the United States, ^^
in the absence at least of an act of Congress establish-
ing a limitation period as against the government.
That a right of user may be acquired by prescription
against the state, if the statute of limitation is ex-
13. Borden v. Vincent, 24 Pick. Wis. 417, 122 N. W. 1062. See
(Mass.) 301; Lawrence v. In- Comm. v. Upton, 6 Gray (Mass.)
habitants of Fairhaven, 5 Gray 473.
(Mass.) 110; Inhabitants of New 15. See cases last cited.
Salem v. Eagle Mill Co., 138 Mass. 16. See editorial note 9 Col-
8; Perley v. Hilton, 55 N. H. 444; umbia Law Rev. 183; Tiewis v.
Charnley v. Shawano Water Pow- New York & H. R. Co., 162 N.
er & River Improvement Co. 109 Y. 202 at 223, 56 N. E. 540.
Wis. 563, 53 L. R. A. 895, 85 N. 17. Union Mill & Milling Co.
W. 507. V. Ferris, Fed Cas. No. 14371, 2
14, Mills V. Hall, 9 Wend. (N. Sawy. 176; Smith v. Hawkins, tlO
Y.) 315, 24 Am. Dec. 160; Rhodes Cal. 122, 42 Pac. 453; Lanique v.
V. Whitehead, 27 Tex. 304, 84 Am. Morrison, 29 Oal. App. 136, 154
Dec. 631; Green Bay &. Mississippi Pac. 881.
Co. V. Teluah Paper Co., 140
"^ 516] Peescription. 2033
pressly made operative as against the state, has been
occasionally recogiiized.^^
Since the doctrine of prescription is based in
theory upon the presumption of a grant, it can apply
only when an actual grant would have been valid.^^
Consequently, it has been held, a right to lateral
support from the bed of a street cannot be acquired
by prescription, since the municipality has no power to
grant such a right,^^ and a right to appropriate water
from a canal cannot be based on prescription when it
could not have been the subject of a grant.^^
§ 516. Who may acquire right by prescription.
The common law rule is that a prescriptive right appur-
tenant to land can be asserted only in favor of one
who has an estate in fee simple in the land, for the
benefit of which the user is made, and that if a tenant
for life or years undertakes to assert such a right,
he must assert it as having been acquired by the ten-
ant in fee simple, under whom he claims.-- The right
is appurtenant to the land rather than to any particular
estate in the land. An easement in gross acquired
by prescription, on the other hand, belongs to the per-
is. Nichols V. Boston, 98 Miss. Rogue River Packing Co., 51 Ore.
39, 93 Am. Dec. 732; Attorney 237, 31 L. R. A. (N. S.) 396. 131
General v. Revere Copper Co., Am. St. Rep. 732, 83 Pac. 391, 92
152 Mass. 444, 9 L. R. A. 510. Pac. 1065, 96 Pac. 865; Goodman
25 N. E. 605; People v. Page. 39 v. Saltash Corp. 7 App. Cas. 633;
N. Y. App. Div. 110, 56 N. Y. Neaverson v. Peterborough Rural
Supp. 834, 58 N. Y. Supp. 239 Council (1902) 1 Ch. 557.
(semble). Compare Kirschner v. 20. Quincy v. Jones, 7(1 111.
Western & A. R. Co., 67 Ga. 760. 231, 20 Am. Rep. 243.
19. Woodworth v. Raymond, 51 21. Burbank v. Fay, 65 N. Y.
Conn. 70; Attorney General v. 57; Rockdale Canal Co. v. Rad-
Revere Copper Co., 152 Mass. 444, cliffe, 18 Q. B. 287.
9 L. R. A. 510, 25 N. K. 005; 22. 2 Blackst. Comm. 2*15; God-
Brookline v. Mackintosh, 133 dard, Easements (6th Ed.) 218;
Mass. 215, 225 (pollution of Perley v. Hilton, 55 N. II. 444;
stream); Felton v. Simpson, 11 Smith v. Kinard, 2 Hill L. (S.
Tred L. (33 N. C.) 84; Hume v. C.) 642. note. See Wheaton v.
2034: Real 'Peopekty. [§ 517
son who exercised the user during the prescriptive
period, and is ordinarily purely personal to him.-^^
That a municipality may acquire by prescription
the right to use the land of an individual for a munic-
ipal purpose has been recognized,^^ but the user of
the land for the prescriptive period by individual in-
habitants of the municipality is insufficient to create
an easement in favor of the municipality.^*
The public cannot, strictly speaking, acquire rights
by prescription. Since a grant cannot be made to the
public, there is no room for the presumption of a grant
in such case. The analogy of prescription has however
been freely applied in the case of highways, on the
theory that an adverse user of private land by the
public for the prescriptive period gives rise to a pre-
sumption that the land was dedicated for a highway,
and the term prescription is almost invariably used in
that connection. The matter of the establishment of
a highway by reason of adverse user on the part of
the public is discussed at the end of this chapter.
§ 517. What rights may be acquired by prescrip-
tion. A right of way over another's land may be ac-
quired by prescription,-^ and the doctrine is perhaps
more frequently applied in this connection than in any
other. That there were, during the prescriptive period,
gates across the way, does not preclude the acquisition
Maple & Co., (1893) 3 Ch. 48, Pick. (Mass.) 191; Green v.
63; Ivimey v. Stocker, L. R. 1 Chelsea, 24 Pick. (Mass.) 71;
Ch. App. 396; Fear v. Morgan, Hill v. Lord, 48 Me. 83.
(1906) 2 Ch. 406. 25. See, e. g. Cheney v. C'Bri-
22a. Ante, § 350. en, 69 Cal. 199, 10 Pac. 479;
23. Gordon v. Taunton, 126 Everedge v. Alexander, 75 Ga.
Mass. 349; Deerfield v. Con- 858; Talbott v. Thorn, 91 Ky. 417,
necticut R. R., 144 Mass. 325, 11 16 S. W. 88; Jones v. Percival.
N. E. 105; Smith v. Sedalia, 152 5 Pick. (Mass.) 485, 16 Am. Dec.
Mo. 283, 48 L. R. A. 711, 53 S. 415; Garnett v. Slater. 56 Mo.
^^ 907. App. 207; Arnold v. Cornman, 50
24. Coram v. Newbury. 2 Pick. Pa. St. 361.
(Mass.) 59; Sale v. Pratt, 19
§ 517]
Pkescription.
2035
of the right,-*' though it may be regarded as tending
to show that the user was permissive.^'
The right to appropriate the water of a stream in
excess of one's natural right may be acquired by pre-
scription as against lower riparian proprietors -* The
right to dam or obstruct the water of a stream so as to
flood the land of another may also be thus acquired,^^
as may the right to pollute the water,"^" or to control
or change the flow.^^ One may also acquire by pre-
scription the right to maintain an aqueduct,-^- or a
26. Johnson v. Stayton, 5 Harr.
(Del.) 448; Smith v. Roath, 238
111. 247, 87 N. E. 414; Moll v.
Hagerbaumer, 98 Neb. 555, 153
N. W. 560; Demuth v. Amweg,
90 Pa. St. 181.
27. Post, § 519, note 80.
28. TVler v. Wilkinson, 4 Ma-
son, 397, Fed., Cas. No. 14312;
Coonradt v. HiU, 79 Cal. 587, 21
Pac. 1099; Arroyo Ditch & Water
Co. V. Baldwin, 155 Cal. 280,
100 Pac. 874: Kuhlman v. Hechl,
77 111. 570; Fankboner ". Coid^r
127 Ind. 164, 26 N. E. 766; Barnes
V. Haynes, 13 Gray (Mass.) 188,
74 Am. Dec. 629; Whitney v.
Wheeler Cotton-Mills, 151 Mas*
396, 7 L. R. A. 613, 24 N. E.
774; Smith v. Putnam, 62 N. H.
369; Shreve v. Voorhees, 3 N. J.
Eq. 25; Krier's Private Road, 73
Pa. St. 109; Horn v. MiUer, 142
Pa. St. 557, 21 Atl. 994; Olney v.
Fenner, 2 R. I. 211, 57 Am. Dec.
711; Ferrell v. Ferrell, 1 Baxt.
(Tenn.) 329; Boyd v. Woolwine,
40 W. Va. 282. 21 S. E. 1020.
29. Atlanta & B. Air Line Ry
V. Wood, 160 Ala. 657. 49 So.
426; Vail v. Mix. 74 111. 127;
Wallace v. Winfield, 96 Kan. A5,
149 Pac. 693; Williams v Nel'-on,
23 Pick. (Mass.) 141; Turner v.
Hart, 71 Mich. 128, 15 Am. St.
Rep. 243, 38 N. W. 890; Mueller
V. Fruen, 36 Minn. 273, 30 N. W.
886; Alcorn v. Sadler, 71 Miss.
634, 42 Am. St. Rep. 484, 14 So.
444; Hammond v. Zehner, 21 N.
Y. 118; Emery v. Raleigh & G.
R. Co., 102 N. C. 209, 11 Am. St.
Rep. 727, 9 S. E. 139; McGeorge
V Hoffman, 133 Pa. St. 381, 19
Atl. 413; Shearer v. Hutterische
Bruder Gemeinde, 28 S. D. 509,
134 N. W. 63; Haas v. Choussard,
17 Tex. 588; Perrin v. Garfield, 37
Vt. 304.
30. Crossley v. Lightowler. 2
Ch. App. 478; Crosby v. Bessey,
49 Me. 539; Holsman v. Boiling
Spring Bleaching Co., 14 N. J. Eq.
335; Gladfelter v. Walker, 40 Md.
1; Jones v. Crow, 32 Pa. St.
398.
31. Brace v. Yale, 10 Allen
(Mass.) 441; Dyer v. Cranston
Print Works Co., 22 R. I. 506,
48 Atl. 791.
32. Churchill v Louie. 1X5 Cal.
608, 67 Pac. 1052; Frederick v.
Dickey, 91 Cal. 358, 27 Pac. 742;
Watkins v. Peck. 13 N. H. 370;
Coventon v. Seufert, 23 Ore. 548,
32 Pac. 508; French Hoek v.
Hugo, L. R. 10 App. Cas. 336.
2036
Eeal Property.
[§ 517
drain,^^ over another's land and likewise the right to
discharge drainage thereon.^'*
One may, it has been held, acquire by prescription
a right to take seaweed from another's land,^^ or a
right to fish thereon.^^ Likewise a prescriptive right
to take water,^"^ or ice,^* from another's land has been
recognized. A profit a prendre can, however, it has
been said, be acquired by prescription only as appur-
tenant to a dominant tenement or, as it is technically
expressed, the party must prescribe in a que estate.-^"
Among other prescriptive rights which have been
judicially recognized are the right to have a division
fence maintained by the owner of adjoining land,^'' the
33. Alderman v. New Haven,
81 Conn. 137, 18 L. R. A. (N. S)
74, 70 Atl. 626; Earl v. De Hart,
12 N. J. Eq. 280, 72 Am. Dec.
395; Beasley v. Engstrom, 31
Idaho, 14, 168 Pac. 1145; Pyott
V. State, 170 Ind. 118, 83 N. E.
737; Pascal v. Hynes, 170 Iowa,
121, 152 N. W. 26; White v.
Chapin, 12 Allen (Mass.) 516;
Shaughnessey v. Leary, 162 Mass.
108, 38 N. E. 197; McCracken v.
MacNeal, 169 Mich. 414, 135 N.
W. 461; Ramsdale v. Foote, 55
Wis. 557, 13 N. W. 557; Wilkins
V. Nicolai, 99 Wis. 178, 74 N.
W. 103.
34. Cotton V. Pocasset Mfg.
Co., 13 Mete. (Mass.) 429; Chapel
V. Smith. 80 Mich. 100, 45 N.
W. 69; Seigmund v. Tyner, 52
Ind. App. 581, 101 N. E. 20;
Peacock v. Stinchcomb, 189 Mich.
301, 155 N. W. 349.
35. HiH V. Lord, 48 Me. 83.
36. Turner v. Hebron, 61 Conn.
175, 14 L. R. A. 386, 22 Atl. 951;
Melvin v. Whiting, 10 Pick-.
(Mass.) 295, 20 Am. Dec. 524, IS
Pick. (Mass.) 188; McFarlin v.
Essex Co., 10 Cush. (Mass.) 304;
Cobb V. Davenport, 32 N. J. L.
369. Compare Tinicum Fishing
Co. V. Carter, 61 Pa. St. 21.
37. Rollins v. Blackden, 112
Me. 459, Ann. Cas. 1917A 875,
92 Atl. 521; Kennedy v. Niles
Water Supply Co., 173 Mich. 474,
43 L. R. A. (N. S.) 836, 139 N.
W. 241; Fraser v. Nerney, 89
Vt. 257, 95 Atl. 501; Mason v.
Yearwood, 58 Wash. 276, 30 L.
R. A. (N. S.) 1158, 108 Pac. 608.
There may be a prescriptive right
to take water from another's
aqueduct. Cole v. Bradbury, 86
Me. 380, 29 Atl. 1097; Kearney
v. Westchester, 199 Pa. 392, 49
Atl. 227.
38. Hoag V. Place, 93 Mich.
450, 18 L. R. A. 39, 53 N. W. 617;
Hinckel v. Stevens, 35 N. Y. App.
Div. 5, 54 N. Y. Supp. 457.
39. Grimstead v. Marlowe, 4
Term Rep. 717; Merwin v. Wheel-
er, 41 Conn. 14; Beach v. Morgan,
67 N. H. 529, 68 Am. St. Rep.
692. 41 Atl. 349; Washburn, Ease-
ments (4th Ed.) 18.
40. Castner v. Riegel, 54 N-
§ 517] Pkescription. 2037
right to conduct on one's land a business which pollutes
the atmosphere, to the injury of the land adjoining/ ^
the right to extend eaves of a roof, or a cornice, or
other part of a building, over another's land."- the
right to maintain gates or other structures on a private
way,*3 the right to stand horses and carriages on an-
other's land,^^ the right to turn one's horses on an-
other's land in ploughing,^^ the right to attach a sign
to another's building,^« the right to maintain an air
shaft through another's property,"'" the right to use
another's property for a ferry landing.*^
There are, on the other hand, some easements
which cannot be acquired by prescription, owing to the
fact that the owmer of the land is not in a position to
prevent the exercise of the user claimed, or to sue on
account thereof, and consequently the fact that he does
not do so is no evidence of acquiescence on his part.
On this principle it has been decided that the appropria-
tion of an excessive quantity of water from a water-
J. L. 498, 24 Atl. 484; Bronson has been decided, can give no
V. Coffin, 108 Mass. 175, 11 Am. right to have branches of trees
Rep. 335; Adams v. Van Alstyne, overhang adjoining land, in view
25 N. Y. 232. of the constant change incident
41. Sturges v. Bridgman, 11 to growth. Lemmon v. Webb,
Ch. Div. 852; Dana v. Valentine, (1894) 3 Ch. 1.
5 Mete. (Mass.) 8. 43. Goodwin v. Bragaw, 87
42. Norwalk Heating & Light- Conn. 31, 86 Atl. 668; Moon v.
ing Co. V. Vernam, 75 Conn. 662, MiUs, 119 Mich. 298, 75 Am. St.
96 Am. St. Rep. 246, 55 Atl. 168; Rep. 390, 77 N. W. 926; Ailes v.
Cherry v. Stein, 11 Md. 1; Mat- Hallam, 69 W. Va. 305, 71 S. E.
thys V. First Swedish Baptist 273.
Church of Boston, 223 Mass. 544, 44. Trauger v. Sassnian, 14 Pa.
112 N. E. 228; Grace Methodist St. 514.
Episcopal Church v. Dobbins, 153 45. .Tones v. Percival, 5 Pick.
Pa. St. 294, 34 Am. St. Rep (Mass.) 485, 16 Am. Dec. 415.
706, 25 Atl. 1120; Sorkin v. Sent- 46. Moody V. Steggles, 12 Ch.
man, 162 Pa. St. 543. 29 Atl. Div. 261.
722. So there may be a presrrip- 47. Bass v. Gregory, 25 Q. B.
tive right to have vessels overlap d. 481.
another's wharf. Wellington v. 48. Clark v. White, 5 Pi:sl5,
Cambridge, 220 Mas-i. 312, 107 353; Bird v. Smith. 8 Watts (Pa.)
N. E. 976. But prescription, ;t 434, 34 Am. Dec. 488.
2038
Real Peopeety,
[§ 517
course for the statutory period by a lower riparian
proprietor does not give him any right to continue such
appropriation as against an upper proprietor who may
thereafter desire to use water therefrom, since the lat-
ter had no means of preventing such excessive appro-
priation other than appropriating the water himself.'*^
One cannot acquire by prescription a right to water
percolating from other land to his land, since the owner
of the land from which it percolates is not in a position
to prevent its percolation.'^*^ Nor can the owner of a
lower tenement acquire by length of user, as against
the upper tenement, a right to the flow of surface
water.^^ So, the owner of the upper tenement, who
has no natural right to have surface water flow from
his land on the lower tenement, cannot acquire such
right by the fact that the owner of the latter does not
prevent such flow until the prescriptive period has
elapsed, since such flow gives no right of action.'^
49. Sampson v. Hoddinott, 1
C. B. N. S. 590; Stockport Water-
works Co. V. Potter, 3 Hurl & C.
300; Walker v. Lillingston, 137
Cal. 401, 70 Pac. 282; Miller &
Lux V. Enterprise Canal & Land
Co., 169 Cal. 415, 147 Pac. 567;
Parker v. Hotchkiss, 25 Conn
o21; Thurber v. Martin, 2 Gray
(Mass.) 394; Pratt v. Lamson, 2
Allen (Mass.) 275, 288; Crawford
V. Hathaway, 67 Neb. 325, 60 L.
R. A. 889, 108 Am. St. Rep. 647,
93 N. W. 781; Davis v. Chamber-
lain, 51 Ore. 304, 98 Pac. 154;
Mud Greek Irr. Agr. & Mfg. Co.
V. Vivian, 74 Tex. 170, 11 S. W.
1078; Lawrie v. Silsby, 76 Vt.
240, 104 Am. St. Rep. 927, 56 Atl.
1106. See note to 93 Am. St. Rep.
at p. 717. But one's ability to
acquire a prescriptive ''ght to
divert water from a stream at a
certain point is not affected by
the fact that he owns riparian
land lower down on the stream.
Dontanello v. Gust, 86 Wash. 268,
150 Pac. 420.
50. Chasemore v. Richards, 7
H. L. Cas. 349; Hanson v. Mc-
Cue, 42 Cal. 303, 10 Am. Rep.
299; Roath v. Driscoll, 20 Conn.
533, 52 Am. Dec. 352; Elster v.
Francis, 18 Pick. (Mass.) 117;
Village of Delhi v. Youmans, 50
Barb. (N. Y.) 316; Frazier v.
Brown, 12 Ohio St. 294; Elster
V. Springfield, 49 Ohio St. 82, 30
N. E. 274; Wheatley v. Baugh,
25 Pa. St. 528, 64 Am. Dec. 721;
Wheelock v. Jacobs, 70 Vt. 162,
43 L. R. A. (N. S.) 105, 67 Am.
St. Rep. 626, 40 Atl. 51.
51. Wood V. Waud, 3 Exch.
748; Greatrex v. Hay ward, 8
Exch. 291; Broadbent v. Rams-
botham, 11 Exch. 602.
52. Parks v. City of Newbury-
§ 517] Prescription. 2039
Where the civil-law rule, giving the proprietor of the
upper tenement a natural right to have his surface
water flow off on the lower tenement, controls, he may
lose this right by submitting to the obstruction of such
flow for the prescriptive period/"*'^ In case tho owner
of the upper tenement causes the water to flow on the
lower tenement in a particular channel, the lower pro-
prietor can prevent such action, and consequently his
failure so to do may be regarded as acquiescence there-
in, which confers the right if continued for the statutory
period.^*
One cannot, in this country, by the maintenance of
windows in one's building overlooking adjacent land
for the statutory period, acquire an easement of light
and air in such land, since this involves no injury to
the land, or diminution of the value of the beneficial
interest therein, and consequently gives no right of
action to the landowner.^^ Likewise, the right of sup-
port for a building by another building or by adjacent
land cannot, by the weight of authority in this country,
be acquired by prescription, since not only is the
exercise of the right not one which causes injury to the
port, 10 Gray (Mass.) 28; White 55. Western Granite & Marble
V. Chapin, 12 Allen (Mass.) 516; Co. v. Knickerbocker, 103 Cal.
Swett V. Cutts, 50 N. H. 439, 9 111, 37 Pac. 192; Guest v. Rey-
Am. Rep. 276. Compare Ross v. nolds, 68 111. 478, 18 Am. Rep.
Mackeney, 46 N. J. Eq. 140, 18 570; Lahere v. Luckey, 23 Kan.
Atl. 685. 534; Pierre v. Fernald, 26 Me.
53. Zerban v. Erdman, 258 111. 436, 46 Am. Dec. 573; Keats v,
486, 101 N. E. 925; Tootle v. Hugo, 115 Mass. 204, 15 Am. Rep.
Clifton, 22 Ohio St. 247, 10 Am. 80; Parker v. Foote, 19 Wend.
Rep. 732; Louisville & N. Ry. Co. (N. Y.) 309; Mullen v. Strieker,
V. Mossman, 90 Tenn. 157, 25 Am. 19 Ohio St. 135, 2 Am. Rep. 379;
St. Rep. 670, 16 S. W. 64. Plaverstick v. Sipe, 33 Pa. St.
54. Moody v. Fremd, 177 Ky. 368; Napier v. Bulwinkle, 5 Rich.
5, 197 S. W. 433; White v. Law (S. C.) 311; Hubbard v.
Chapin, 12 Allen (Mass.) 516; Town, 33 Vt. 295; Powell v. Sinia.
Schnitzius v. Bailey, 48 N. J. 5 W. Va. 1, 13 Am. Rep. 629.
Eq. 409, 22 Atl. 732; Glenn v. Contra, Clawson v. Primrose, 4
Line, 155 Mich. 608, 119 N. W. Del. Ch. 643.
1097.
2040 Eeal Pkopebty. [§ 518
supporting land or building, but the dependence of a
building on such support is a fact which is in most
cases not discoverable until the support is withdrawn."'^
In England, on the other hand, the right of support
may be thus acquired.^''^
There are several decisions in this country that a
right in the use of a party wall may be acquired by
prescription,^^ but this view, while clearly correct when
it involves the placing of beams or other parts of a
building in or on a wall upon adjoining land,^'' is, it
seems, in other cases, not involving any occupation of
the space above such land, not reconcilable with the
principle that the user, to be adverse, must be action-
able,^" nor with the decisions above referred to, that
a right of support for buildings from adjoining land
or buildings cannot be acquired by prescription.
§ 518. Actual user necessary. In order that
the doctrine of prescription may operate in one's favor
he must have actually used the land of another and the
mere assertion of a right to use it is insufficient.®^
56. Richart v. Scott, 7 Watts 614; Weadock v. Champe, 193
(Pa.) 460; MitcheU v. City of Mich. 553, Ann. Cas. 1918C 874,
Rome, 49 Ga. 19, 15 Am. Rep. 160 N. W. 564; McVey v. Durkin,
669; Tunstall v. Christian, 80 Va. 136 Pa. St. 418, 20 Atl. 541;
1, 56 Am. Rep. 581; Handlan v. First Nat. Bank of Wichita FaUs
McManus, 42 Mo. App. 551; Sul- v. Zundelowitz, — Tex. Civ. App.
livan V. Zeiner, 98 Cal. 346. See — , 168 S. W. 40.
Gilmore v. Driscoll, 122 Mass. 59. As in Barry v. Edlavitch,
199, 207. But see City of Quincy 84 Md. 95, 33 L. R. A. 294, 35
V. Jones, 76 111. 231, 20 Am. Rep. Atl. 170; McLaughlin v. Cecconi,
243; Lasala v. Holbrook, 4 Paige 141 Mass. 252, 5 N. E. 261.
(N. Y.) 169, 25 Am. Dec. 524. 60. See Whiting v. Gaylord,
57. Dalton v. Angus, 6 App. 66 Conn. 337, 50 Am. St. Rep.
Cas. 740; Lemaitre v. Davis, 19 87. 34 Atl. 85.
Ch. Div. 281. 61. Peterson v. McCullough, 50
58. Bright' v. J. Bacon & Sons, Incl. 35; Gibson v. Fischer, 68
131 Ky. 848. 20 L. R. A. (N. S.) Iowa, 29, 25 N. W. 914; Fox
386, 116 S. W. 268 (dictum)
Dowling V. Hennings, 20 Md. 179
Brown v. Werner, 40 Md. 15
Schile V. Brokhahus, 80 N. Y,
River Flour & Paper Co. v.
Kelley, 70 Wis. 287, 35 N. W.
744,
§ 519] Prescription. 2041
It has occasionally been asserted that no right
of user can be acquired by prescription unless the user
was, during the prescriptive period, actually beneficial
to the person exercising it."- In some of these cases
the question was as to the acquisition of the right to
divert water from a stream, and the assertion of the
requirement of beneficial user involved merely the
application to the case of prescription of a require-
ment recognized in those jurisdictions in connection
with the law of prior appropriation.'"''^ "Since a right
of appropriation cannot be held without beneficial use,
one pretending to be an app'ropriator has no color of
title w^ithout beneficial use."*^^ However, the pro-
priety of such a requirement of beneficial use as
an element of prescription even in those states has
been questioned.*^^ And, generally speaking rhe in-
troduction of any additional requirements as to the
characteristics of the user necessary for the purpose
of prescripfion is to be deprecated, as adding to the
existing complexity of the subject.
§ 519. Adverse character of user. In order that
a right to use another's land be acquired by (lie user
thereof for the statutory period, the user must be hos-
tile or adverse to the owner of the land."*'
62. LouisviUe & N. R. Co. v. 64. Wiel, Water Rights in the
Hays, 11 Lea (Tenn.) 382, 47 Am. Western States (2nd Ed.), § 247.
Rep. 291; Simons v. Munch, 115 65. 93 Am. St. Rep. note to
Minn. 360, 132 N. W. 321, and Oregon etc. Co. v. Allen, at
cases cited in next note. p. 720; Wiel, Water Rights, §
63. Senior v. Anderson, 115 247.
Cal. 496, 47 Pac. 454; 130 Cal. 66. Humphreys v. Blasingame.
290, 62 Pac. 563; California Pas- 104 Cal. 40, 37 Pac. 804; Dexter
toral & Agricultural Co. v. Medera v. Tree, 117 111. 532, b N. K.
Canal & Irrigation Co., 167 Cal. 506; Cox v. Forrest, 60 Md. 74;
78, 138 Pac. 718; Lavery v. Arn- Chollar Potosi Min. Co. v. Ken-
old, 36 Ore. 84, 57 Pac. 907; nedy, 3 Nev. 361, 93 Am. Dec.
Oregon, etc. Co. v. Allen, 41 Ore. 409; Pavey v. Vance, 56 Ohio St.
209, 93 Am. St. Rep. 701, 69 Pac. 162, 46 N. E. 898; Pierre v.
455; Cleary v. Daniels, —Utah, Cloud, 42 Pa. St. 102, 82 Am. Dec.
— , 167 Pac. 820. 496; Kearney y. Borough of West
2042
Real Pkopeety.
[§ 519
The courts usually refrain from an explicit state-
ment of what they mean by adverse user in this con-
nection, but it appears reasonably safe to say that a
user is adverse if not accompanied by any recognition,
in express terms or by implication, of a right in the
landowner to stop such user now or at some time in
the future. The recognition of the landowner's right
to put an end to the user precludes any presumption,
from his failure to assert such right, that no such
right exists.
That the user of the land is under permission or
license from the owner of the land shows, it is generally
recognized, that the user is not adverse.^'^ Such a
user evidently involves a recognition of the land-
owner's right to stop it now^ or in the future, and in
view of such recognition, no inference can be drawn
from his failure actually to stop it. But a user which
Chester, 199 Pa. St. 392, 49 Atl.
227.
67. Stewart v. White, 128 Ala.
202, 55 L. R. A. 211, 30 So. 526;
Medlock v. Owen, 105 Ark.
460, 151 S. W. 995; Thomas v.
England, 71 Cal. 456, 12 Pac.
491; Cassin v. Cole, 153 Cal.
677, 96 Pac. 277; Lamhe v. Man-
ning, 171 111. 612, 49 N. E. 509;
Anchor v. Stewart, 270 111. 57,
110 N. E. 385; Conner v. Wood-
fill, 126 Ind. 85, 22 Am. St. Rep.
568, 25 N. E. 876; Sexton v. Holt,
91 Kan. 26, 136 Pac. 934; Dris-
coll V. Morehead, 147 Ky. 107, 143
S. W. 758; Morse v. Williams, 62
Me. 445; Kilburn v. Adams, 7
Mete. (Mass.) 33, 39 Am. Dec.
754; Moore v. Bulgreen, 153 Mich.
261, 116 N. W. 1005; Lanier v.
Booth, 50 Miss. 410; Dulce Realty
Co. V. Staed Realty Co., 245 Mo.
417, 151 S. W. 415; Crawford
V. Minnesota & M. Land & Im-
provement Co., 15 Mont. 153, 38
Pac. 713; Bone v. James, 82
Neb. 442, 118 N. W. 83; Howard
V. Wright, 38 Nev. 25, 143 Pac.
1184; Parker v. Foote, 19 Wend.
(N. Y.) 309; Wiseman v. Luck-
singer, 84 N. Y. 31, 38 Am. Rep.
479; Lincoln v. Great Northern
Ry. Co., 26 N. D. 504, 144 N. W.
713; Wimer v. Simmons, 27 Ore.
1, 50 Am. St. Rep. 685; Zerbey
V. Allan, 215 Pa. 383. 64 Atl. 587;
Turnbull v. Rivers, 3 McCord L.
(S. C.) 131, 15 Am. Dec. 622;
Turner v. South & West Improve-
ment Co., 118 Va. 720, 88 S. E.
85; Whaley v. Jarrett, 69 Wis.
613, 2 Am. St. Rep. 764, 34 N.
W. 727. But Frederic v. Mayers,
89 Miss. 127, 43 So. 677 appears
to assert, in an obscure way, that
a revocable license becomes ir-
revocable after the prescriptive
period has passed.
It has been decided that the
§ 519]
Pbesckiption.
2043
is permissive in its inception may become adverse by
the action of the person exercising the user in denying
the right of the landowner to interfere with the user,
provided notice of such denial is brought home to the
landowner,*^^
When the owner undertakes to confer upon another
a perpetual right of user in the land, but fails to do so
in a valid manner, as when he makes an oral grant of
an easement, the user of the land by such other in ac-
cordance with the terms of the invalid grant cannot
be regarded as permissive and in subordination to the
rights of the lando^vner, but is in effect adverse to
such rights.^^ Such a case is analogous to that of
the possession of land under an invalid conveyance
user is not adverse if it was
under permission, although the
person giving permission was a
tenant who had no authority to
give permission. Williamson v.
Abbott, 107 S. C. 397, 93 S. E.
15. This appears to be entirely
reasonable.
That payment to the land
owner of an annual sum in
connection with the user justifies
an inference that it is permis-
sive, see Gardner v. Hodgson's
Kingston Breweries Co. (1903)
App. Cas. 229; O'Brien's Appeal,
11 Wkly Notes Cas. (Pa.) 229.
68. Barbour v. Pierce, 42 Cal.
657; Hill v. Hagaman, 84 ind.
287; McAllister v. Pickup, 84
Iowa, 65, 50 N. W. 556; Patterson
V. Griffith,— (Ky.)—, 62 S. W.
884; Pitzman v. Boyce, 111 Mo.
387, 33 Am. St. Rep. 536, 19 S.
W. 1104; Hurst v. Adams, 86 Mo.
App. 73; Taylor v. Gerrish, 59 N.
H. 569; Eckerson v. Crippen,
110 N. Y. 585, 1 L. R. A. 487. IS
N. E. 443; Huston v. Bybee. 17
Ore. 140, 2 L. R. A. 568. 20 Pac.
51; Thoemke v. Fiedler, 91 Wis.
386, 64 N. W. 1030; Weidensteiner
V. Mally, 55 Wash. 79, 104 Pac.
143.
69. Oneto v. Restano. 78 Cal.
374, 20 Pac. 743; Myers v. Berven.
166 Cal. 484, 137 Pac. 260; Gyra
v. Winler, 40 Colo. 366, 13 Ann.
Cas. 841, 91 Pac. 36; Legg v.
Horn, 45 Conn. 415; Alderman v.
New Haven, 81 Conn. 337, 18 L.
R. A. (N. S.) 74, 70 Atl. 626;
McKenzie v. Elliott, 134 HI. 156.
24 N. E. 965; Schmidt v. Brown,
226 111. 590, 80 N. E. 1071; Parish
V. Kaspare, 109 Ind. 586, 10 N.
E. 109; Shimanek v. Chicago. M.
& St. P. Ry. Co. —(Iowa),— 152
N. W. 574; Talbott v. Thorn, 91
Ky. 417, 16 S. W. 88; Oak Grove
Missionary Baptist Church v.
Rice, 162 Ky. 525. 172 S. W. 927;
Jewett v. Hussey, 70 Me. 433;
Stearns v. Janes, 12 Allen (Mass.)
582; Sanford v. Kern, 223 Mo.
616, 122 S. W. 1051; Wells v.
Parker, 74 N. H. 193, 66 Atl. 121.
Hearrl v Bowcn.- Tex Civ Apr.
— , 184 S. W. 234; Holm v.
2044
Beal Peoperty.
[§ 519
thereof, which is ordinarily adverse to the grantor.'^
The user of the land under such circumstances in-
volves no recognition of any right as remaining in the
grantor.
The user of one piece of land for the benefit of
another piece cannot be adverse so long as both are
in the possession of the same person, since in such
case whatever user is made of either by the person in
possession is to be imputed to the fact of possession."*^"
A tenant under a lease cannot, it has been decided,
acquire by prescription a right in land, near the de-
mised premises, which also belongs to the landlord,
whether this neighboring land is or is not in the pos-
session of a tenant under a lease. '''^ Since the right
Davis, 41 Utah, 200, 44 L. R. A.
(N. S.) 89, 125 Pac. 403; J-e-hman
V. Mills, 46 Wash. 624, 13 L,. R
A. (N. S.) 990, 13 Ann. Cas. 923,
91 Pac. 11. Contra, semhle, Wise-
man V. Lucksinger, 84 N. Y. 31,
38, Am. Rep. 479; Long v. May-
berry, 96 Tenn. 378, 36 S. W.
1040.
70. Ante § 513(e), note 20.
70a. Battishill v. Read, 18 C.
B. 696; Onley v. Gardiner, 4
M. & W. 496; Damper v. Bassett
(1901) 2 Ch. 350; Outram v.
Maude, 17 Ch. Div. 391, 405;
Barker v. Mobile Elec. Co., 173
Ala. 28, 55 So. 364; Hickox v.
Parmelee, 21 Conn. 86; Broom v.
Gizzard, 136 Ga. 297, 71 S. E.
430; Williams v. Deskins, 179
Ky. 61, 200 S. W. 1; Pierce v.
Fernald, 26 Me. 436. 46 Am. Dec.
573; Murphy v. Welch, 128 Mass,
489; Vossen v. Dautel, 116 Mo.
379, 22 S. W. 734; Stuyvesant v.
Woodruff, 21 N. J. L. 133, 47
Am. Dec. 156; Stevens v. Den-
nett, 51 N. H. 324; Wells v.
Parker, 74 N H. 193, 66 Atl.
121; Phillips v. PhiUips, 48 Pa.
St. 178, 86 Am. Dec. 577; Payne
v. WiUiams, 2 Spears L. (S. C.)
15; Crosland v. Rogers, 32 S.
C. 130; Sasman v. Collins,— (Tex.
Civ. App.), 115 S. W. 337; Mable
V. Matteson, 17 Wis. 1; In Franz
V. Mendonca, 131 Cal. 205, 63 Pac.
361, it is said that the user
continues to be adverse although
the same person is in possession
under leases of both properties.
This is, it is submitted, erro-
neous. See also Gerstner v,
Payne,— (Mo. App.)—, 142 S. W.
794, and Rogers v. Flick, 144 Ky.
844, 139 S_. W. 1098, criticized in
editorial note, 10 Mich. Law Rev.
236.
71. Gayford v. Moffatt, 4 Ch.
App. 133; Kilgour v. Gaddes,
(1904) 1 K. B. 457; Kuhlmau
V. Hecht, 77 111. 570; Brown v.
Dickey, 106 Me. 97, 75 Atl. 382;
Vossen v. Dautel, 116 Mo. 379,
22 S. W. 734; Stevens v. Dennett,
51 N. H. 324; Phillips v. Phillips,
48 Pa. St. 178, 86 Am. Dec. 577.
§ 519]
Presckiption.
2045
would be acquired by the tenant as appurtenant to the
land itself, and so for the benefit of his landlord,'^
it would result that the landlord would acquire a
right of user against himself, an easement in his own
land, a legal impossibility. And moreover the fact
that the user of land is made in connection with other
land which he holds under a lease from the peroon who
owns both pieces of land is sufficient in itself to show
that the user is permissive merely.
Since it is the recognition of a riaht in the land-
owner to put an end to the user which deprives the
user of the element of adverseness, and such recogni-
tion is in its nature an affirmative fact, the burden of
proof in reference thereto is properly on the landowner,
that is, in the absence of e^ddence to the contrary, the
user of another's land is ordinarily presumed to be
adverse. ''■^ If evidence to the contrary is introduced,
the question of the character of the user is obviously
one of fact,'^^ and the burden of proof, in the sense of
72. Ante, § 516, note 22.
73. Polly V. McCali, 37 Ala.
20; Fleming v. Howard, 150 Cal.
28, 87 Pac. 908; Cheda v. South-
ern Pac. Co.,— (Cal.)— , 134 Pac.
717; Mitchell v. Bain 142 Ind.
604, 42 N. E. 230; Smith v.
Ponsford, 184 Ind. 53, 13 N. E.
194; Stewart v. Brumley, — (Ky.)
— , 119 S. W. 798; Bordes v.
Leece, 179 Ky. 655, 201 S. W.
4; Cox V. Forrest, 60 Md. 74;
Barnes v. Haynes, 13 Gray
(Mass.) 188; White v. Chapin, 12
Allen (Mass.) 516; Berkey &
Gay Furniture Co. v. Valley City
Milling Co., 194 Mich. 234, 160
N. W. 648; Novinger v. Shoop,
— Mo. — , 201 S. W. 64; Moll
V. Hagerbaumer, 98 Neb. 555, 153
N. W. 560; Smith v. Putnam, 62
N. H. 369; Clement v. Bettle, 65
N. J. L. 675, 48 Atl. 567; Ham-
mond V. Zehner, 21 N. Y. 118;
American Bank-Note Co. v. New
York El. R. Co., 129 N. Y. 252,
29 N. E. 302; Pavey v. Vance,
56 Ohio St. 162, 46 N. E. 898;
Gardner v Wright, 49 Ore. 609.
91 Pac. 286; Steffey v. Carpenter,
37 Pa. 41; Slater v. Price, 96 S.
C. 245, 80 S. E. 372; Dodge v.
Stacy, 39 Vt. 558; Muncy v. Up-
dyke, 119 Va. 6.'{6, 89 S. E. 884:
Lechman v. Mills, 46 Wash. 624,
91 Pac. 11, 13 L. R. A. (N. S.)
990, 13 Am: Cas. 923; Hawkins
V. Conner, 75 W. Va. 220, 83 S.
E. 982; Carmody v. Mulrooney, 87
Wis. 552, 58 N. W. 1109.
74. Thomas v. England, 71
Cal. 456, 12 Pac. 491; Humphreys
V. Blasingame, 104 Cal. 40, 37
Pac. 804; Hill v. Crosby, 2 Pick.
(Mass.) 466, 13 Am. Dec. 448;
Bigelow Carpet Co. v. Wiggln, 209
2 R. P.
2046
Real Propeety.
[§ 519
risk of lion persuasion of the jury,^^ is, as regards the
adverse character of the user as well as the other
elements of prescription, upon the person asserting
the prescriptive right. '**
While ordinarily, as ahove stated, the user of
another's land is presumed to he adverse, such a
presumption does not exist, it seems, in the case of
unenclosed land or, as it may be otherwise expressed,
evidence that the land is unenclosed is sufficient to
rebut the presumption."' And it has been decided that
when one throws his land open to the use of the
public, or of his neighbors generally, a user thereof by
a neighboring landowner, however frequent, will be
presumed to be permissive and not adverse, in the ab-
sence of any attendant circumstances indicative of the
contrary."^^ And it has been said that if the proprie-
Mass. 542, 95 N. E. 938; Burn-
ham V. McQuesten, 48 N. H. 446;
Iselin V. Starin, 144 N. Y. 453, 39
N. E. 488; Bennett v. Biddle, 140
Pa. 396, 21 Atl. 363.
75. 4 Wigmore, Evidence, §
2485.
76. District of Columbia v.
Robinson, 180 U. S. 92, 45 L. Ed.
440; Clarke v. Clarke, 133 Cal.
667, 66 Pac. 10; Barlow v. Frink,
171 Cal. 165, 152 Pac. 290; Shea
V. Gavitt, 89 Conn. 359, L. R. A.
1916 A, 689, 94 Atl. 360; Rollins
V. Blackden, 112 Me. 459, 92 Atl.
521; Smith v. Sedalia, 152 Mo.
283, 48 L. R. A. 711, 53 S. W. 907;
Barber v. Bailey, 86 Vt. 219, 84
Atl. 608, 44 L. R. A. (N. S.) 98;
St. Martin v. Skamania Boom
Co.. 79 Wash. 393, 140 Pac. 355;
Crosier v. Brown, 66 W. Va. 273,
25 L. R. A. N. S. 174, 66 S. E. 326.
77. Card v. Cunningham, —
Ala.—, 74 So. 335; Clarke v.
Clarke, 133 Cal. 667, 66 Pac. 10;
Illinois Cent. R. Co. v. Stewart,
265 111. 35, 106 N. E. 512 (unen-
closed and unoccupied); Bowman
V. Wickliffe, 15 B. Mon. (Ky.) 84;
Conyers v. Scott, 94 Ky. 123, 21
S. W. 530, (But see Hansford v.
Berry, 95 Ky. 56, 23 S. W. 665);
Winlock V. Miller, 167 Ky. 717,
181 S. W. 330 (unenclosed wood-
land); Downing v. Benedict, 147
Ky. 8, 143 S. W. 756; Donnell v.
Clark, 19 Me. 174; Davidson v.
Nantz, 177 Ky. 50, 197 S. W. 520;
Gibson v. Durham, 3 Rich. L.
85; Hutto V. Tindall, 6 Rich. L.
396; Schulenbarger v. Johnstone,
64 Wash. 202, 116 Pac. 843, 35
L. R. A. (N. S.) 941. Contra, in
Pennsylvania and West Virginia
Worrall v. Rhoads, 2 Whart.
(Pa.) 427; Walton v. Knight, 62
W. Va. 223, 58 S. E. 1025. The
Pannsylvania act of 1850 provides,
however, that no right of way
shall be acquired by prescription
over unenclosed woodland.
78. Kilburn v. Adams, 7 Met.
(Mass.) 33, 39 Am. Dec. 754;
^ 519]
Prescription,
2047
tors of churches, school houses and other qu(i<i public
buildings enclose their grounds and provide unlocked
gates for passage, an adjoining proprietor cannot ob-
tain title to a right of way by occasionally passing
through the gates and over the enclosed land to his
own premises,'''
The presumption that the user of another's land
was adverse may obviously be rebutted by evidence that
the person exercising the user recognized the right of
the landowner to stop such user. And so the fact that the
former apparently recognizes the latter 's right to
make the user less convenient, as by failing to object
to the erection of a gate or bars over a way, may tend
to rebut such presumption.*^ The presumption that the
user was adverse may also be rebutted by evidence that
it was under permission or license, this in eifeet in-
volving a recognition of the landowner's right to stop
it. If the user was originally by permission, it is pre-
Burnham v. McQuesten, 48 X. H.
446; Cobb v. Davenport, 32 N. J.
L. 369; Howard v. Wright, 38
Xev. 25, 143 Pac. 1184; Plimpton
T. Converse, 44 Vt. 158: Cincin-
nati Southern R. Co. v. Slaughter,
31 Ky. L. 913, 104 S. W. 291;
O'Neil v. Blodgett, 53 Vt. 213;
Witt V. Creasey, 117 Va. 872, 86
S. E 128; And see Cook v. Gam-
mon, 93 Ga. 298, 20 S. E. 332;
City of Chicago v. Chicago, R. I.
& P. Ry. Co. 152 111. 561, 38 N.
768.
A like rule appears to be ap-
plied in Hunter v. Emerson, 75
Vt. 173, 53 Atl. 1070, with refer-
ence to the right to enter on
another's land in order to take
water from a spring. Compare
Gentry v. Piercy, 175 Ky. 174, 193
S. W. 1017.
79. Menter v. First Baptist
Church, 159 Mich. 21, 123 N. W.
585. And that this is the rule
in the case of grounds attached to
such buildings, if they are un-
enclosed, see Kilburn v. Adams,
7 Mete. (Mas.?.) 33, 39 Am. Dec.
754; Thompson v. Bowers, 115
Me. 6, 97 Atl. 1.
80. Prewitt v. Hustonville
Cemetery Co., 31 Ky. L. Rep. 125,
101 S. W. 892; Downing v. Beae-
dict. 147 Ky. 8, 143 S. W. 756;
Cahill v Mangold, 151 Ky. 156,
151 S. W. 373; Moll v. Hager-
baumer, 98 Neb. 555, 151 X. W.
300; Howard v. Wright, 38 Nev.
25, 143 Pac. 1184; Peters v. Rob-
ertson, 73 Ore. 263, 144 Pac. 568;
Schulenbarger v. Johnstone. 64
Wash. 202; 116 Pac. 843, 35 L. R.
A. (S. S.J 941. Compare MoU v.
Hagerbaumer, 97 Neb. 809, 153 N.
W. 560; Demuth v. Amweg, 90 Pa.
St. 181.
2048
Real Peopeety.
[§ 519
sumed to have so continued, in the absence of af-
firmative evidence of the assertion of a right to such
user or a repudiation of the landowner's right to stop
it.»i
The user by another of a way or space laid out or
left by the landowner, concurrently with its user by the
latter, has occasionally been regarded as presumably
by permission of the landowner ;*2 but w^hether such
user is permissive would seem properly to be deter-
minable with reference to all the circumstances of the
case, more particularly the character and location of
the way or place of passage. The mere fact that the
owner of the land also passes in the same place or
alone: the same line would not seem in itself sufficient
81. Brandon v. Umpqua Lum-
ber & Timber Co., 'ZQ Cal. App.
96, 146 Pac. 46; Fightmaster v.
Taylor, 147 Ky. 469, 144 S. W.
381; LouisviUe & N. R. Co. v.
Cornelius, 165 Ky. 132, 176 S. W.
964; Flagg v. PhiUips, 201 Mass.
216, 87 N. E. 598; Fitzman v.
Boyce, 111 Mo. 387, 33 Am. St.
Rep. 536, 19 S. W. 1104; Howard
V. Wright, 38 Nev. 25, 143 Pac.
1184; Flora v. Carbean, 38 N. Y.
Ill; Yeager v. Woodruff, 17
Utah, 361, 53 Pac. 1045; Witt v.
Creasey, 117 Va. 872, S6 S. E.
128; Schulenberger v. Johnstone,
64 Wash. 202, 35 L. R. A. (N. S.)
941, 116 Pac. 843.
That one who purchases land
mistakenly supposes that his ven-
dor's user of adjoining land be-
longing to another was not per-
missive, has been held not in it-
self to make the vendee's user of
the latter land adverse. Luce v.
Carley, 24 Wend. (N. Y.) 451. 35
Am. Dec. 637; Yeager v. Wood-
ruff, 17 Utah, 361, 53 Pac. 1045.
But see Conaway v Toogood, 172
Cal. 706, 158 Pac. 200. In Toney
V. Knapp, 142 Mich. 652, 106 N. W.
552, it was held that after a li-
cense of passage was revoked by
the licensor's conveyance of his
land, the subsequent user of the
land for passage by the licensee
and persons claiming under him
was adverse. See the discussion
in Editorial note, 5 Mich. Law
Rev. 545.
82. Barker v. Mobile Electric
Co., 173 Ala. 28, 55 So. 364;
Manion v. Creigh, 37 Conn. 464;
Gascho V. Lennert, 176 Ind. 677,
97 N. E. 6; HaU v. McLeod, 2
Mete. (Ky.) 98; Anthony v. Ken-
nard Bldg. Co., 188 Mo. 704, 87 S.
W. 921; Howard v. Wright, 38
Nev. 25, 143 Pac. 1184; Peters y.
Robertson, 73 Ore. 263, 144 Pac.
568; Sassman v. Collins, 53 Tex.
Civ. App. 71, 115 S. W. 337;
Harkness v. Woodmansee, 7 Utah,
227, 26 Pac. 291. So it has been
said that w^hen a space is design-
edly left open by the owner for
his own convenience the presump-
tion ordinarily is that the user
§ 520]
Prescription.
2049
to show that the user is permissive.^^ There are several
decisions to the effect that if two adjoining proprietors
establish a way, for their mutual accommodatiou, upon
the division line between the two properties, and each
uses, for the j^urpose of passage, the part of the way
on the other's land as well as that on his own, such
user is to be presumed to be adverse. ^^
That the owner of the dominant tenement joined
with the owner of the servient tenement in repairing
the appliances by means of which the user was exer-
cised does not show that the user is permissive and
not adverse.*^*
§ 520. Necessity of claim of right. It is fre-
quently stated that, in order that one may acquire a
right by prescription, the user must be under claim of
right.*^ Sometimes this requirement is stated as ad-
of such space by another even
for his own purpose is permis-
sive. Gascho V. Lennert, 176, Ind.
677, 97 N. E. 6.
83. See Bennett v. Biddle, 150
Pa. St. 420, 24 Atl. 738.
84. Thompson v. Easley, 87 Ga.
320, 13 S. E. 511; Clark v. Hen-
ckel,— (Md.)— , 26 Atl. 1039; Dow-
ling V. Hennings, 20 Md. 179, 8:5
Am. Dec. 545; Barnes v. Haynes,
13 Gray (Mass.) 188, 74 Am. Dec.
629; Jensen v. Showalter, 79 Neb.
544, 113 N. W. 202; Nicholls v.
Wentworth, 100 N. Y, 455, 3 N.
E. 482; Craven v. Rose, 3 S. C.
72 See Scott v. Dishough, 83
Ark. 369, 103 S. W. 1153. But
see Wilkinson v. Hutzel, 142
Mich. 674, lOG N. W. 207.
84a. Watkins v. Peck, 13 N. H.
360; Shaughnessey v. Leary, 1G2
Mass. 108, 38 N. E. 197.
85. Union Mill & Mining Co.
V. Ferris, 2 Sawy. 176, Fed Cas.
No. 14371; Trump v. McDonnell,
120 Ala. 200, 24 So. 353; Barbour
V. Pierce, 42 Cal. 657; Brandon
v. Umpqua Lumber & Timber
Co., 26 Cal. App. 96, 146 Pac.
46; Clarke v. Clarke, 133 Cal.
667, 66 Pac. 10; Medlock v. Owen,
105 Ark. 460, 151 S. W. 995;
Brossard v. Morgan, 7 Idaho, 215,
61 Pac. 1031; Dexter v. Tree, 117
111. 532, 6 N. E. 506; Hill v.
Hagaman, 84 Ind. 287; Parish v.
Kaspare, 109 Ind. 586, 10 N. E.
109; Bowman v. Wickliffe, 15 B.
Mon. (Ky.) 84; Rollins v. Black-
den, 112 Me. 459, Ann. Cas. 1917A
875, 92 Atl. 521; Sargent v.
Ballard, 9 Pick. (Mass.) 251;
Brace v. Yale, 10 Allen (Mass.)
441; Bigelow Carpet Co. v. Wig-
gin, 239 Mass. 542, 95 N. E. 938;
Wallace v. Fletcher, 30 N. H. 434;
Burnham v. McQuesten, 48 N. U.
446; Cobb v. Davenport, 32 N. J.
L. 369; Felton v. Simpson, 11
Ired. L. (33 N. C.) 84; Louisville
& N. R. Co. V. Hays, 11 Lea.
2050
Real Peopebty.
[§ 520
ditional to that of the adverseness of the user, and
sometimes as explanatory of what the requirement of
adverseness means. In whichever way it be av^serted,
the recognition of such a requirement, like that
of claim of title as a prerequisite to the running
of the statute of limitations in favor of one wrongfully
in possession of land, involves considerable difficulty.
It appears to be conceded that this requirement of
claim of right does not involve any necessity of a
verbal assertion, during the period of user, of a
right to exercise such user, and that it is sufficient if
an assertion of such a claim can be inferred from the
circumstances of the user itself.^*^ And so it has been
stated that, in the absence of evidence to the contrary,
the user of another's land without interruption for the
prescriptive period will be presumed to have been
under claim of right. ^'^ This requirement of claim of
(Tenn.) 382, 47 Am. Rep. 291;
Dodge V. Stacy, 39 Vt. 558; Wilder
V. Wheeldon, 56 Vt. 344; Kent
V. Dobyns, 112 Va. 586, 72 S.
E. 139; Bisbee v. Lacky, 97
Wash. 447, 166 Pac. 638. In
Boyd V. Morris, 32 Ky. L. Rep.
642, 106 S. W. 867, it is said to
be immaterial whether the ad-
verse use of a passway over the
land of another is claimed as
a matter of right or merely as a
matter of convenience.
86. Deerfield v. Connecticut
R. R., 144 Mass. 325, 11 N. E.
105: Smith v. Putnam, 62 N.
H. 369; Hammond v. Zehner, 21
N. Y. 118; Townsend v. BisseU,
4 Hun (N. Y.) 297; Snowden v.
Bell, 159 N. C. 497, 75 S. E. 721;
Pavey v. Vance, 56 Ohio St. 162,
46 N. E. 898; Hall v. Austin, 20
Tex. Civ. App. 59, 48 S. W. 53;
Barber v. Bailey, 86 Vt. 219, 44
L. R. A. (N. S) 98, 84 Atl. 608;
Dodge V. Stacy, 39 Vt. 558. An
Iowa statute provides that user
shall not be evidence of a claim
of right, and that express notice
of the claim must be given. See
Gates V. Colax Northern R. Co.,
177 Iowa, 690, 159 N. W. 456;
McBridge v. Bair, 134 Iowa, 611,
112 N. W. 169.
87. Smith v. Ponsford, 184
Ind. 53, 110 N. E. 194; Mitchell
V. Pratt, 177 Ky. 438, 197 S. W.
961; Blake v. Everett, 1 Allen
(Mass.) 248; Miller v. Garlock,
8 Barb. (N. Y.) 153; Pavey v.
Vance, 56 Ohio St. 162, 46 N.
E. 898; Barber v. Bailey, 86
Vt. 219, 44 L. R. A. (N. S.) 98,
84 Atl. 608; Poronto v. Sinnott,
89 Vt. 479, 95 Atl. 647; Muncy
v. Updike, 119 Va. 636, 89 S. E.
884; Rogerson v. Shepherd, 33
W. Va. 307, 10 S. E. 632; Wend-
ler V. Woodward, 93 Wash. 684,
161 Pac. 1043.
But the burden of proof, in
the sense of risk of non persua-
§ 520] Pbescriptiox. 2051
right thus appears to resolve itself into a requirement
merely of a user which will justify an inference or pre-
sumption of such a claim, and the only user which can
possibly satisfy this requirement is obviously a user
''as of right," that is, a user unaccompanied by any
recognition of a right in the landowner to stop such
user. It would be more satisfactory if the courts, in-
stead of asserting that the user must be under claim
of right, would assert merely that it must be ''as of
right "^^ or w^ould be satisfied with the statement that
it must be adverse, which apparently means the same.
As it is not necessary that the person exercising the
wrongful use verbally assert a claim of right to make
such use, so, it is conceived, it is not necessary that he
believe himself to have such a right, that is, a mental
claim of right is no more necessary than a verliai claim
of right. It is recognized that good faith is not neces-
sary to entitle one to the benefit of the statute of limi-
tations,^^ and there is no reason for regarding it as
necessary for the application of the doctrine of pre-
scription.^*^
sion of the jury, is necessarily Act, the two expressions "as
upon the person asserting ihe of right" and "claiming right"
prescriptive right. Shea v. are used, and they are regarded
Gavitt, 89 Conn. 359, L. R. A. as similar in meaning. Tickle
1916A 689, 94 Atl. 360; Rollins v. Brown, 4 Ad. & El. 369, and
V. Blackden, 112 Me. 459, Ann. "as of right," it has been decid-
Cas. 1917A 875, 92 Atl. 521; ed, means as a person right-
Smith V. Sedalia, 152 Mo. 283, fully entitled would have en-
48 L. R. A. 711, 53 S. W. 907; joyed the user. Bright v. Wal-
St. Martin v. Skamania Boom ker, 1 Cromp. Mees. & Ros. 211,
Co., 79 Wash. 393, 140 Pac. 355; while the user is not "as of
District of Columbia v. Robin- right" if permissive. Inter-
son, 180 U. S. 92, 45 L. Ed. 440 national Tea Stores v. Hobbs
(dictum). (1903) 2 ch. 165; Gardner v.
88. As in Polly v. McCall, 37 Hodgson's Kingston Brewery
Ala. 20; Stevens v. Dennett, 51 (1903) App. Cas. 229.
N. H. 324; Worrall v. Rhoads, 2 89. Ante, § 504 note 72.
Whart. (Pa.) 427; Webster v. 90. The decision in Wilder v.
Lowell, 142 Mass. 324, 8 N. E. Wheeldon. 56 Vt. ."'.44. that the
54. claim of a right of way by
In the English Prescription prescription was defeated by
2052
Eeal Peopeety.
[§ 521
§ 521. Necessity of notice to landowner. It has
been quite frequently stated that the adverse user must
be known to the owner of the land in order tliat the
doctrine of prescription may apply as against him.^^
But it appears that actual knowledge on his part need
not be shown, it being sufficient that the user is so
visible and notorious that, in the exercise of due dili-
gence, he would learn thereof .^^ Otherwise, as has been
remarked ''a non resident, or a landowner unusually in-
attentive to his property and business might escape the
operation of the rule of prescription under circum-
stances which would expose to it a resident or land-
owner who kept well informed respecting his property,
evidence that the claimant
"never entertained any cliim ct
right to use the way," is, it is
submitted, erroneous.
91. Stewart v. White, 128 Ala.
202, 55 L. R. A. 211, 30 So.
526; American Co. v. Bradford,
27 Cal. 360; Wills v. Babb, 222
111. 95, 6 L. R. A. (N. S.) 136,
78 N. E. 42; Peterson v. Mc-
Cullough, 50 Ind. 35; Zigefoose,
v. Zigefoose, 69 Iowa, 391, 28 N.
W. 654; George Tt Stagg Co. v.
Frankfort Modes Glass Works,
175 Ky. 330, 194 S. W. 333;
Barry v. Edlavitch, 84 Md. 95,
33 L. R. A. 294, 35 Atl. 170;
Sargent v. Ballard, 9 Pick.
(Mass.) 251; Holman v. Richard-
son, 112 Miss. 216, 72 So. 921;
Gross v. Jones, 85 Neb. 77, 122 N.
W. 681; Wallace v. Fletcher, 30
N. H. 434; Cobb v. Davenport,
32 N. J. L. 369; Wooldridge v.
Coughlin, 46 W. Va. 345, 33 S.
E. 233.
92. Jesse French Piano &
Organ Co. v. Forbes, 129 Ala.
471, 87 Am. St. Rep. 71, 29
So. 683; Abbott v. Pond, 142
Cal. 393, 76 Pac. 60; Lockwood
V. Lawrence, 77 Me. 297, 52 Am.
Rep. 73; Deerfield v. Connecticut
R. R., 144 Mass. 325, 11 N. E.
105; O'Brien v. Goodrich, 177
Mass. 32, 58 N. E. 151; Mc-
Cracken v. MacNeal, 169 Mich.
414, 135 N. W. 461; Holman v.
Richardson, 115 Miss. 169, L.
R. A. 1917F 942, 76 So. 136;
Wells V. Parker, 74 N. H. 193, 66
Atl. 121; Carlisle v. Hooper, 21
N. J. Eq. 576; Treadwell v. Ins-
lee, 120 N. Y. 458, 24 N. E. 651;
Salem Mills Co. v. Lord. 42 Ore.
82, 69 Pac. 1033, 70 Pac. 832;
Reimer v. Stuber, 20 Pa. St. 458,
59 Am. Dec. 744; Hughesville
Water Co. v. Person, 182 Pa. St
450, 38 Atl. 584; Perrin v. Gar-
field, 37 Vt. 304; Arbuckle v.
Ward, 29 Vt. 43; Davison v.
Columbia Lodge No. 8, K. P., 90
Wash. 461. 1.^6 Pac. o83: Daltoc
V. Angus, 6 App. Cas. 740 at 801,
per Selborne, L. C; Union Light-
erage Co. V. London Graving
Dock Co.. (1901) 2 Ch. 300,
(1902) 2 Ch. 557. Compare Cheda
V. Southern Pac. Co., 22 Cal. App.
373, 134 Pac. 717.
§ 522]
Prescription.
2053
and thus diligence would be punished and laches re-
warded.'"'^
The owner of the land, having notice, ex])ress or
implied, of the user, may properly, it would seem, be
charged with notice of the adverse character thereof,
unless the circumstances are such as to raise a pro-
sumption that it is permissive.^^ It has, however, been
occasionally stated in general terms that the land-
owner must have notice of the adverse character of
the user.*-^
§ 522. Necessity of exclusive user. It is some-
times said that, in order to acquire a right of user by
prescription, the user during the prescriptive must bo
exclusive,''*^ but this appears to be so in a very limited
sense, if at all.^' For instance, the user of another's
93. 93 Am. St. Rep. at p 722,
note to Oregon, etc.. Ditch Co.
V. Allen Ditch Co. That if the
user is known, it is immaterial
whether it is open or notorious,
see Fogarty v. Fogarty, 129 Ca'.
46, 61 Pac. 570.
94. See Trustees of CincinnaH
Southern R. Co. v. Slaughter,
31 Ky. L. Rep. 913, 104 S. W.
291; Wells v. Parker, 74 N. H.
193, 66 Atl. 121; Barber v
Bailey, 86 Vt. 219, 44 L. R. A.
(N. S.) 98, 84 Atl. 608.
95. Menter v. First Baptist
Church, 159 Mich. 21, 123 N. Y/.
585; Brandon v. Umpqua Lumber
& Timber Co., 26 Cal. App. 96,
146 Pac. 46; Callan v. Waiters,
— Tex: Civ. App.—, 190 S. W. 829.
In Snowden v. BeU, 159 N. C
497, 75 S. E. 721, it is said that
the user must be such as to give
notice of the claim of right.
In Barber v. Bailey, 86 Vt. 219,
44 L. R. A. (N. S.) 98, 84
Atl. 608; Poronto v. Sinnott,
89 Vt. 479, 95 Atl. 647, it ia
said that the fact that the use
is notorious raises a presump-
tion that it is under claim of
right.
86. Turner v. Selectmen of
Hebron, 61 Conn. 175, 14 L. R.
A. 386, 22 Atl. 951; Waters v.
Snouffer, 88 Md. 391, 41 Atl.
785; Day y. Allender, 22 Md.
511; Miller v. Gariock, 8 Barb.
(N. Y.) 153; Reid v. Garnett,
101 Va. 47, 43 S. E. 182. &e*»
22 Am. & Eng. Encyc. Law (2nd
Ed.) 1203.
97. It has been said that "it
is not necessary that the one
who claims the easement should
be the only one who can or may
enjoy that or a similar right
over the same land, but that hia
right should not depend for itu
enjoyment upon a similar right
In others, and that he may ex-
ercise it under some claim ex-
isting in his favor, independent
of all others." Washburn, Ease-
2054
Real Propeety.
:§ 522
land for purposes of passage, if continued for the pre-
scriptive period, may operate to create an easement of
a right of way, although the owner of the land also
passes upon the same line'*^ or allows others to pass
thereon,**^ nor is it material, in this regard, that an
exactly similar easement of passage in favor of another
is already existent,^ or is in course of establishment.^
The user of another's land merely as one of the public
does not, it is true, although continued for the pre-
scriptive period, ordinarily give an individual right of
user,^ but this is either because the circumstances are
such as to indicate that the user was permissive,'* or
because, assuming the user to be adverse, there is then
an adverse user by the public, and the user results in
the acquisition of a right by the public^ and not by an
ments (4th Ed.) 164. See to th»
same general effect, McKenzie
V. EUiott, 134 in. 156, 24 N.
E. 965; Schmidt v. Brown, 226
111. 590, 80 N. E. 1071; Reid v.
Garnett, 101 Va. 47, 43 S. E.
182; Poronto v. Sinnott, 89 Vt.
479, 95 Atl. 647. In Davis v.
Brigham, 29 Me. 391, It is said
that "the word exclusive in
this connection can only mean
that the enjoyment of the ease-
ment as claimed, whether it he
a limited or more general en-
joyment, should exclude others
from a participation of it.".
98. Bennett v. Biddle, 150 Pa.
St. 420. 24 Atl. 738: Schmidt
V. Brown, 226 III. 590, 80 N. B.
1071.
99. McKenzie v. Ellioit. 134
111. 156, 24 N. E. 965; Thompson
V. Bowes, 115 Me. 6, 97 Atl. 1;
Cox V. Forest, 60 Md. 74; San-
ford V. Kern, 223 Mo. 616, 122
S. W. 1051: Nash v. Peden, 1
Speers, 22. So in the case of an
irrigation ditch, which was used
by others. Silva v. Hawn, 10
Cal. App. 544, 102 Pac. 952.
1. Webster v. Lowell, 142
Mass. 324, 8 N. E. 54; Ballard
V. Demmon, 156 Mass. 449, 31
N. E. 635. So it has been decid-
ed that the fact that one per-
son has a right of flowage in
certain land does not preclude
another from acquiring by pre-
scription a right of flowage
therein. Davis v. Brigham, 29
Me. 391.
2. Kent v. Dobyns, 112 Va.
586. 72 S. E. 139.
3. Merwln v. Wheeler. 41
Conn. 14; Stevens v. Dennett.
51 N. H. 324; Day v. AUender,
22 Md. jll; Prince v. Welbourn.
1 Rich. L. (S. C.) 58; Rowland
V. Wolfe, 1 Bailey L. (S. C.) 56;
Reid V. Garnett. 101 Va. 47. 43
S. E. 182; Sassman v. Collins,
53 Tex. Civ. App. 71, 115 S. W.
337; Muncy v. Updyke. 119 Va.
636, 89 S. E. 884.
4. Ante, § 519, note 79.
5. Post, § 533.
§§ 523, 524] Prescription. 2055
individual. Likewise, although, in order to acquire a
prescriptive right to fish in navigable waters, to the ex-
clusion of the public, one's fishing therein during the
prescriptive period must be exclusive of the public, in
the sense that the public must be prevented by him from
fishing at that place,*' this is for the reason that other-
wise his fishing would be merely the exercise of a right
appertaining to him as one of the public.
§523. Necessity of peaceable user. The user must
it is said, in order to ripen into a prescriptive right, be
peaceable.'^ Just what this means does not clearly ap-
pear,^ but it may be presumed to mean that the user is
ineffectual if its exercise involves the forcible over-
coming of resistance interposed by the landowner or
forcible removal of physical obstacles interposed by
the latter. The requirement finds its justification, it
would seem, in the consideration of the impropriety of
allowing one to acquire a right by the continuous repeti-
tion of forcible acts of aggression, thus placing a prem-
ium upon the commission of such acts, and also in the
fact that the necessity of resorting to force in order to
accomplish the user clearly demonstrates a lack of ac-
quiescence on the part of the landowner.
§ 524. Necessity of right of action. In order that
a right of using another's land be acquired by lapse of
time, the user must have been such as to give rise to a
6. Chalker v. Dickinson, 1 S.) 538; Cave v. Crafts. 53 Cal.
Conn. 384, 6 Am. Dec. 250; Day 135; Trenton Water Power Co.
V. Day, 4 Md. 262; Lakeman v. v. Raff. 36 N. J. L. 335; Rhodes
Burnham, 7 Gray (Mass.) 437; v. Whitehead, 27 Tex. 304.
Hume V. Rogue River Packing Co., 8. See Lehigh Valley R. Co.
51 Ore. 237, 31 L. R. A. (N. S.; v McFarlan, 43 N. J. L. 605. 622.
396, 131 Am. St. Rep. 732, In Montecito Valley Water Co.
83 Pac. 391, 92 Pac. 1065, 96 v. Santa Barbara, 144 Cal. 578.
Pac. 865; Sloan v. Biemillor, 34 77 Pac. 1113. it is said that
Ohio St. 492. peaceable in this connection
7. Stillman v. White Rock means uninterrupted.
Mfg. Co., 3 Woodb. & M. (U.
2056
Eeal Propeety.
L§ 524
right of action on the part of the owner, since, if he
cannot legally protect himself against the user, no infer-
ence can be drawn from his failure to do so.^ Provided
a right of action exists on account of the user of the
land, the fact that there is, by such user, merely an in-
fringement of the right of property, and no actual dam-
age to the land, does not prevent the running of the
prescriptive period.^" And so it has been held that one
may acquire by prescription, as against a lower riparian
owner, the right to divert water from the stream,
although such a lower owner has, during the preserip-
9. Stouts Mountain Coal &
Coke Co. V. Ballard, 195 Ala.
283, 70 So. 172; Miller & Lux
V. Enterprise Canal & Land Co.,
169 Cal. 415, 147 Pac. 567; Whit-
ing V. Gaylord, 66 Conn. 337,
50 Am. St. Rep. 87, 34 Atl. 85;
Mitchell V. City of Rome, 49
Ga. 19; Gilmore v. DriscoU, 122
Mass. 199, 207; Turner v. Hart,
71 Mich. 128, 15 Am. St. Rep.
243, 38 N. W. 890; Roe v. Howard
County, 75 Neb. 448, 5 L. R. A.
N. S. 831, 106 N. W. 587; Swett
V. Cutts, 50 N. H. 439, 9 Am.
Rep. 276; Carlisle v. Cooper, 19
N. J. Eq. 256; Emery v. Raleigh
& G. R. Co., 102 N. C. 210, 11
Am. St. Rep. 727, 9 S. E. 139;
Wimer v. Simmons, ^7 Ore. 1,
50 Am. St. Rep. 685, 39 Pac. 6;
Williams v. Haile Gold Min. Co.,
85 S. C. 1, 7, 66 S. E. 117, 1057;
St. Martin v. Skamania Boom
Co., 79 Wa.sh. 393, 140 Pac. 355;
Eells V. Chesapeake & O. Ry.
Co., 49 W. Va. 65, 87 Am. St.
Rep. 737, 38 S. E. 479.
So it has been held that pre-
scription commenced to run in
favor of a right to overflow
another's land, not upon the
erection of the appliance or struc-
ture, which ultimately caused the
overflow, but only when the over-
flow began. Galbreath v. Hop-
kins, 159 Cal. 297, 113 Pac. 174;
Button V. Stoughton, 79 Vt. 361,
65 Atl. 91; Hume v. Grand
Trunk Western R. Co., 192 Mich.
225, 158 N. W. 840.
10. Heilbron v. Fowler Switch
Canal Co., 75 Cal. 426, 7 Am. St.
Rep. 183, 17 Pac. 535; Mott v.
Ewing, 90 Cal. 231, 27 Pac. 194;
Bolivar Mfg. Co. v. Neponset
Mfg. Co., 16 Pick. (Mass.) 241;
Dana v. Valentine, 5 Mete.
(Mass.) 8; Parker v. Foote, 19
Wend (N. Y.) 309; Tootle v.
Clifton, 22 Ohio St. 247, 10 Am.
Rep. 732; Olney v. Fenner, 2 R.
I. 211, 57 Am. Dec. 711; Mally v.
Weideusteiner, 88 Wash. 398,
153 Pac. 342.
In Maine there is. In the ab-
sence of actual damage, no right
of action on account of the
flowage of land, the common law
right of action in this regard
being superseded by the flowage
statute. Hathorne v. Stinson, 12
Me. 183, 28 Am. Dec. 167; Seid-
ensparger v. Spear, 17 Me. 123.
35 Am. Dec. 234. And there a
perceptible amount of damage
§ 524]
Pbescription.
2057
tive period, no need of a quantity of water greater than
that which still remains in the stream. ^^ That there is
sufficient water for all would seem to have its chief
significance as tending to exclude any inference of no-
tice to the riparian owner of the adverse user of the
water,^^
The question whether a prescriptive right can be ac-
quired as against a reversioner or remainderman would
ordinarily depend upon whether the user is such as to
give him a right of action in spite of the fact that the
seems to be regarded as neces-
sary even in other cases. Crosby
V. Bessey, 49 Me. 539, 77 Am.
Dec. 271; Lockwood Co. v. Law-
rence, 77 Me. 207, 52 Am. Rep.
763.
11. Bolivar Mfg. Co. v. Nepon-
set Mfg. Co., 16 Pick. (Mass.)
241; Olney v Fenner, 2 R. I. 211.
57 Am Dec. 711; Messinger s
Appeal, 109 Pa. 285; Cape v.
Thompson, 21 Tex. Civ. App. 681.
But occasionally a contrary view
appears to have been applied
as regards prescription againsi a
riparian owner. See Anaheim
Water Co. v. Semi Tropic Water
Co., 64 Cal. 185, 30 Pac. Q2-s;
Meng V. Coffey, 67 Neb. 500, 60
L. R. A. 713, 108 Am. St. Rep
697, 93 N. W. 713; Redwater
Land & Canal Co. v. Jones, 27
S. D. 194, l.'iO N. W. 85; Martin
V. Burr — Tex. Civ. App. — , 171
S. W. 1044. See the query in
this regard in Wiel Water Rights
in the Western States (2nd Ed.)
380. A like view has been as-
serted as regards a right to take
water from another's spring, to
the effect that it was not estab-
lished by the long continued tak-
ing of the water, if the owner of
the spring had all the water
which he needed. Jobling v. Tat-
tle, 75 Kan. 351, 9 L. R. A.
(N. S.) 960, 89 Pac. 699.
As against a prior appropria-
tor, as distinguished from a ri-
parian owner, prescription runs
only when the prescriptive claiiii-
ant so ases the water as actually
to deprive the prior appropria-
tor of some part of the water
10 which he is entitled under
his appropriation and which is
needed by him. Sgan v. Estrada.
6 Ariz. 248. 56 Pac. 721; Church
V. Stillwell, 12 Colo. App. 43.
54 Pac. 395; Brossard v. Morgan.
7 Idaho, 215, 61 Pac. 1031; Tal-
bott V. Butte City Water Co.,
29 Mont. 17. 73 Pac. 1111; Smith
V. Duff, 39 Mont. 102 Pac. 381;
Ison V. Sturgill, 57 Ore. 109, 109
Pac. 579, 110 Pac. 535; Henderson
V. Gaforth. 34 S. D. 441. 148 N.
W. 1045; Miller v. Wheeler, 54
Wash. 429, 103 Pac 641; Sander
V Bull, 76 Wash. 1. 135 Pac. 489.
12. So it is said in Watts v.
Spencer, 51 Ore. 262, 94 Pac. 39
that there is no adverse user
until the owner is deprived of
the benefits of the use of the
water in such a substantial man-
ner as to know that his right
is invaded.
2058 Real Property. [§ 524
possession is in anotlier.^-^ In case he has a right of
action, and fails to exercise it,^^ tlie doctrine of prescrip-
tion is, it seems, applicable as against him as if he
had an estate in possession,^^ unless some special
method is provided by statute to prevent the acquisition
of such a right by prescription, and he adopts it.^®
In no case, it seems, does the existence of an out-
standing particular estate prevent the application of
the doctrine as against the reversioner or remainder-
man, if such particular estate was created after the
prescriptive period had commenced to run.^" And the
general docrine has been regarded as applying in spite
of an outstanding tenancy from year to year, it being
said that the owner of the fee ''had the right to bring
suit every year. "^^ But as to this last case there might
be some question, if the tenancy from year to year was
created before the commencement of the prescriptive
period, and if the user were not such as to give a right
of action to one who has a reversion upon a tenancy for
years. The owner of the fee should not be under an
obligation to bring suit if this could be done only by
terminating the tenancy.^^
If one has a right of user by grant, express or
implied, his exercise of such user is to be imputed to
such grant,^""^^ and being rightful, no prescriptive right
can be acquired thereby. And so one who has a way of
13. See Phillips v. Phillipai, 449, 31 N. E. 635.
186 Ala. 545, 65 So. 49; Reimer 17, Cross v. Lewis, 2 Barn.
V Stuber, 20 Pa. St. 458; Cun- & Cr. 686; Ballard v. Demmon,
ningham v. Dorsey, 3 W. Va. 293. 156 Mass. 449, 31 N. E. 635;
Pentland v. Keep, 41 Wis. 490. Ward v. Warren, 82 N Y. 265;
14 The extent to which a re- Stothart v. Hilliard, 19 Ont. 542.
versioner has such a right is dis- 18. Reimer v. Stuber, 20 Pa.
cussed in 2 Tiffany, Landlord & St. 458.
Tenant, § 353. 19. See ante, § 506, note 99.
15. See Gale, Easements (8th 20-21. Atkins v. Boardman, 2
Ed.) 215. Mete. (Mass.) 457, 37 Am. Dec.
16. As in Massachusetts, in 100; Smith v. Hope Min. Co., 18
the case of a right of way. Mont. 432, 45 Pac. 632; Smith v.
See Mass. Rev. Laws p. 1260; Wiggin, 52 N. H. 112. See Horn
Ballard v. Demmon, 156 Mass. v. Miller, 142 Pa. St. 557-
§ 525] Prescription. 2059
necessity, on the theory of implied grant,-- cannot ac-
quire, by the user of the way for the prescriptive period
before the necessity ceases, a right to the way after the
necessity ceases,^^ But even though one has a valid
grant of a perpetual right of user in particular land, he
may, by a user of the same land in a manner different
from that named in the grant, or to a greater extent,
acquire an easement by prescription in addition to
that named in the grant,-^ provided the different or
more extended user is known to the landowner.--'"'
The user of a public highway by an individual can-
not be effective as against the owner of the land on
which the highway is located, so as to create a prescrip-
tive right to a way in an individual using the highway,
since the owner of the land cannot, while it is used as a
highway, prevent passage thereon by such individual.-'^
But such user may become adverse upon the abandon-
ment of the highway.- '^
§ 525. Continuity of user. The user of the land,
in order to create a right by prescription, must be con-
tinuous for the prescriptive period.-^ This requirement
22. Ante, § 363(c), 105 Pa. St. 371; Ruttan v. Win-
23. Ann Arbor Fruit & Vine- ans, 5 Up. Can. C. P. 379.
gar Co. V. Ann Arbor R. R. Co., 25. Gross v. Jones, 85 Neb. 77.
136 Mich. 599, 66 L. R. A. 431, 122 N. W. 681.
99 N. W. 869; Rater v. Shuttle- 26. Webster v. Lowell, 142
field, 146 Iowa, 512, 44 L. R. A. Mass. 324, 8 N. E. 54; Wheel-
(N. S.) 101, 125 N. W. 235; Saas- er v. Clark. 58 N. Y. 267:
man v. Collins, 53 Tex. Civ. App. Whaley v. Stevens, 27 S. C. 549.
71, 115 S. W. 337. Expressions 4 S. E. 145.
to the contrary in Johnson v. 27. Black v. O'Hara. 54 Conn.
Allen, ;i3 Ky. L. Rep. 621, 110 17, 5 Atl. 598.
S. W. 851, are, it is submittel, 28. Johnson v. Lewis. 47 Ark.
erroneous. 66. 2 S. W. 329; Smith v. Jlawk-
24. Atkins v. Bordman, 20 ins, 110 Cal. 122, 42 Pac. 453;
Pick. (Mass.) 291; Hales v. At- Peters v. Little, 95 Ga. 161 22
lantic Coast Line R. Co., 172 N. S. E. 44; Bodfish v. Bodflsh, lOR
C. 104, 90 S. E. 11; Wheatley v. Mass. 317; Dummer v. U. S.
Chrisman, 24 Pa St. 298, 64 Am. Gypsum Co., 1.53 Mich. 622. 117
Dec. 657; Gehman v. Erdman, N. W. 357; Bonelli v. Blakcmore,
2060
Real Peopekty.
[§ 525
of continuity does not however involve any necessity
that the user be exercised constantly and without inter-
mission,-^ and it is sufficiently continuous, it would
seem, if it is exercised with such frequency and con-
stancj' as to affect the landowner with notice that it is
being exercised."'*' Occasionally it has been said that
the user is sufficiently continuous if use is made of the
land whenever there is any necessity for such use on
the part of the claimant.^ ^
A right of way may be acquired by prescription al-
though the user was exercised at infrequent inlervals,^^
and a preserij^tive right to divert water from a natural
watercourse may be acquired although the diversion was
not constant."^^ Likewise a right to flood another's land
to a certain extent may exist by prescription although
the flowage is at times diminished or interrapted by
66 Miss. 136, 14 Am. St. Rep.
550, 5 So. 228; NichoHs v. Went-
worth, 100 N. Y. 455. 3 N. E.
482; Geer v. Durham W'ater Co..
127 N. C. 349, 37 S. E. 474;
Watt V. Trapp, 2 Rich. Law (S.
Car.) 136; Ferrell v. Ferrell, 1
Baxt. TTenn.) 329: Texas West-
ern Ry. Co. V. Wilson. 83 Tex.
153, 18 S. W. 325; Plimpton v.
Converse, 42 Vt. 712.
29. See Kamer v. Bryant. 103
Ky. 723. 46 S. W. 14: Dana v.
Valentine. 5 Mete. (Mass.) 8.
30. Pollard v. Barnes, 2 Gush.
(Mass.) 191; Dummer v. U. S.
Gypsum Co., 153 Mich. 622. 117
N. W. 317; Gilford v. Winni-
piseogee Lake Co., 52 N. H. 262;
Bodfish V. Bodfish. 105 Mass.
317; Hollins v. Verney, 13 Q. B.
D. 304: Gale, Easements (8th
Ed.) 186; editorial note in 11
Columbia Law Rev. at p. 674.
31. Hesperia Land & Water
Co. V. Rogers, 83 Cal. 10. 17 Am.
St. Rep. 209. 23 Pac. 196; Myers
V. Berven, 166 Cal. 484, 137 Pac.
260; Cox V. Forrest, 60 Md. 74;
Cornwell Mfg. Co. v. Swift, 89
Mich. 503. 50 N. W. 1001: Dum-
mer v. United States Gypsum
Co., 153 Mich. 622, 117 N. W.
317; Swan v. Munch. 65 Minn.
500, 35 L. R. A. 743, 60 Am. St.
Rep. 491. 67 N. W. 1022: Lake
Co. V. Young, 40 N. H. 420; Jar-
man V. Freeman, 80 N. J. Eq.
81. 83 Atl. 372: Garrett v. Jack-
son, 20 Pa. St. 331; Messinger's
Appeal, 109 Pa. St. 285, 4 Atl.
162; Brand v. Lienkaemper, 72
Vvash. 547, 130 Pac. 1147.
32. Cox v. Forrest, 60 Md.
74; Bodfish v. Bodfish. 105 Mass.
317; Winnipiseogee Lake Co. v.
Young, 40 N. H. 420.
33. Lane v. Miller, 27 Ind.
534; McDougal v. Lame, 39 Ore.
212; 64 Pac. 864; Messinger's
Appeal, 109 Pa. 285. 4 Atl. 162;
Jordan v. Lang, 22 S. C. 159.
525]
Pkescription",
2061
reason of a lack of water, a need of repairing the dam,
or other temporary condition."^^
Diversity of user. A user of another's land in
one mode for part of the prescriptive period can not
be added to a user in another mode for the balance of
the period, in order to make up the user necessary for
the creation of a prescriptive right. For instance, it
the course and place of termination of a di'ain are
changed, the user cannot be regarded as being the same
user before and after the change, for the purpose of
conferring a prescriptive right. ^^ So it has been decided
that an elevated railway structure substituted for an-
other structure of a similar but less burdensome char-
acter could not be regarded as involving the same in-
fringement of an abutting owner's rights.^" And the
It has been said that there
must at least be an annual
flowage of land in order to give
a prescriptive right. Turner v.
Hart, 71 Mich. 128, 15 Am St.
Rep. 243, 38 N. W. 890; Gleason
v. Tuttle, 46 Me. 288. See Wood
V. Kelley, 30 Me. 47; Crosby v.
Bessey, 49 Me. 539.
34. Cornwell Mfg. Co. v.
Swift, 89 Mich. 503, 50 N. W.
1001; Reason v. Peters, 148
Mich. 532, 112 N. W. 117; Swan
V. Munch, 65 Minn. 500, 60 Am.
St. Rep. 491, 67 N. W. 1022;
Alcorn v. Sadler, 71 Miss. 634,
42 Am. Rep. 484, 14 So. 444;
Winnipiseogee Lake Co. v. Young,
40 N. H. 420; Carlisle v. Cooper,
21 N. J. Eq. 576; Ely v. State,
199 N. Y. 213, 92 N. E. 629;
Gerenger v. Summers, 24 N. C.
229; Haag v. De Lorme, 30 Wis.
591.
35. Cotton v. Pocasset Mfg.
Co., 13 Mete. (Mass.) 429; Totel
V. Bonnefoy, 123 111. 653, 5 Am.
2 R. P.— 55
St. Rep. 570, 14 N. E. 687. But
it has been decided that there
is no interruption of the user
of water from a stream on an-
other's land by reason of a
change, of not more than 200
yards, as regards the point on
the stream at which the water
is taken. Malley v. Weidenstein-
er, 88 Wash. 398, 153 Pac. 342.
This would seem questionable,
since the change would involve
the location of the aqueduct
along an entirely different line.
The authorities cited concern
merely a right to divert water
based on prior appropriation,
not on prescription.
36. American Bank-Note Co. v.
New York El. R. Co.. 129 N. Y.
252, 29 N. E. 302. But a change
in the motive power used on
the elevated railroad and an
increase in the length of the
trains was held to be immaterial.
Bremer v. Manhattan Ry. Co.,
191 N. Y. 333, 84 N. E. 59.
2062
Real, Property.
[§ 525
use of an additional track for ''drilling" cars was held
to involve a user different from that made of the tracks
previously existing.-'" On the other hand a change in
the location of a dam by which land of another is over-
flowed has been held not to involve a change of user, if
the same land is overflowed to the same extent,"^ and
a change in the mode of utilizing the water which is
diverted from a stream has likewise been regarded as
immaterial.-'*' Likewise, as previously indicated,^*' a
change of user does not occur merely because the extent
of the flowage of land varies from time to time.
It is generally agreed, at least in this country, that
to acquire a right of way by prescription, the passage
during the prescriptive period must have been sub-
stantially along one line of travel,^ ^ though it is oc-
37. Pennsylvania R. Co. v.
Thompson, 45 N. J. Eq. 870, 14
Atl. 897, 19 Atl. 622.
38. Stackpole v. Curtis, 32 Me.
383. See Emery v. Raleigh &
G. R. Co., 102 N. C. 209, 11 Am.
St. Rep. 727, 9 S. E. 139. Com-
pare Branch v. Doane, 17 Conn.
402.
39. Stein v. Burden, 24 Ala.
130, 60 Am. Dec. 453; Gallaher
V. Montecito Valley Water Co..
101 Cal. 242, 35 Pac. 770; Bel-
knap V. Trimble, 3 Paige (N. Y.)
577; Smith v. Adams, 6 Paige
(N. Y.) 435; Whitehan v. Brown,
80 Kan. 297, 102 Pac. 783; 3
Kent's Comm. 443.
40. A7ite, this section, note 34.
And it has been held that the
right, by prescription, to main-
tain a dam at its original height
is not affected by the fact that
the flash boards were sometimes
carried away by water and ice,
or were removed to prevent them
from being carried away, or for
other reasons. Tosini v. Cas-
cade Milling Co., 22 S. D. 377,
117 N. W. 1037, See also, as to
flash boards, Carlisle v. Cooper,
21 N. J. Eq. 576; Hall v. Augs-
bury, 46 N. Y. 622; Ely v.
State, 199 N. Y. 213, 92 N. E.
629.
41. Johnson v. Lewis, 47 Ark.
66, 2 S. W. 329; Peters v. Little,
95 Ga. 151, 22 S. E. 44; Poole v.
Bacon, 238 111. 305, 87 N. E.
320; Bowman v. Wickliffe, 15 B.
Mon. (Ky.) 99; Hoyt v. Ken-
nedy, 170 Mass. 54, 48 N. E.
1073; Garnett v. Slater. 56 Mo.
App. 207; Holmes v. Seeley, 19
Wend. (N. Y.) 507; Bushey v.
Santiff, 86 Hun (N. Y.) 384,
33 N. Y. Supp. 473; Nellis v.
Countryman, 153 N. Y. App. Div.
500, 138 N. Y. Supp. 246; Ar-
nold V. Cornman, 50 Pa. St.
361; Turnbull v. Rivers, 3 Mc-
Cord, Law (S. C.) 131, 15 Am.
Dec. 622; Sassman v. Collins,
53 Tex. Civ. App. 71, 115 S.
W. 337; Lund v. Wilcox, 34 Utah,
205, 97 Pac. 33; Plimpton v.
§ 526] Presckiption. 2063
casionally said that a slight divergence, especially if
necessitated by local conditions, is immaterial.-
The fact that the nse is increased during the
prescription period does not, provided the nature of the
nser remains unchanged, preclude the establishment of
a right corresponding to the original user as it existed
before the change was made,^'^ but there is no pre-
scriptive right corresponding to the increased user,^^
except in so far as the increased user itself continues
for the prescriptive period.^^
§ 526. Cessation of adverse character. Although
the user of another's land in a particular way continues
for the whole of the prescriptive period, no right is ac-
quired thereby if the user loses its adverse character
before the period expires. This it may do by reason of
the fact that the possession of the servient tenement
becomes united with that of the dominant tenement."*"
Or it may occur that the person exercising the user in
some way recognizes the right of the owner of the land
Converse, 44 Vt. 158; Crosier v. 191 N. Y. 3;53, 84 N. E. 59.
Brown, 66 W. Va. 273, 66 S. E. 44. Mississippi Mills Co. v.
326. But there are in Wimbledon Smith, 69 Miss. 297, 30 Am. St.
etc. Conservators v. Dixon, 1 Ch. Rep. 546, 11 So. 26; Matthews
Div. 363 dicta to the contrary. v. Stillwater Gas & Electric Light
42. Cheney v. O'Brien, 69 Cal. Co., 63 Minn. 493, 65 N. W. 947;
199. 10 Pac. 479; Gentleman v. Smith v. City of Sedalia, 152 Mo.
Soule. 32 111. 271, 83 Am. Dec. 283, 48 L. R. A. 711, 53 S. W.
264; Talbott V. Thorn, 91 Ky.- 417, 907; Prentice v. Geiger, 74 N.
16 S. W. 88; Salmon v. Martin, Y. 341; Boynton v. Longley, 19
156 Ky. 309. 160 S. W. 1058; Nev. 69, 3 Am. St. Rep. 781.
Moll V. Hagerbaumer, 98 Neb. 6 Pac. 437;; McCallum v. Ger-
555. 153 N. W. 560: Bolton v. mantown Water Co., 54 Pa. St.
Murphy, 41 Utah, 591, 127 Pac. 40, 93 Am. Dec. 656; Shearer v.
335; Walton v. Knight, 62 W. Va. Hutterische Bruder Gemeinde, 28
223. 58 S. E. 1025: Warren v. S. D. 509. 134 N. W. 63.
Van Norman, 29 Ont. 84. 45. McDonnell v. Hufflne, 44
43. Shaughnessey v. Leary, 162 Mont. 411. 120 Pac. 792; Bolton
Mass. 108, 38 N. E. 197; Bald- v. Murphy, 41 TTtah. .^91, 127 Par.
win V. Calkins, 10 Wend (N. Y.) 335.
167: Bremer v. Manhattan R. Co., 4C. Avtr. § r)24. note 20.
2064
Real Property.
[§ 527
to stop the nser,'''^ as when he asks permission of the
latter.^^ Whether such a recognition is to be regardea
as involved in an offer on the part of the person exer-
cising the user to purchase the right of user would ap-
pear to be a question of fact in the particular case,^^
§ 527. Interruption by landowner. That the
owner of the land interposes physical obstacles to the
exercise of the user, to an extent sufficient to render it
impossible, has been regarded as precluding the ac-
quisition of a prescriptive right.^° So one cannot ac-
quire a right of way by prescription if the lando^\Tier
places a fence or other structure so as to prevent pas-
sage,^^ and it has been decided that no right to divert
water accrues by lapse of time if the landowner pre-
vents, even though only temporarily, the diversion of
water.^^ Such action on the part of the landowner
necessarily stops the user, the continuity of which is
essential to the application of the doctrine of prescrip-
47. Sumner v. Tileston, 7
Pick. (Mass.) 198; Colvin v.
Burnet, 17 Wend. (N. Y.) 569;
Perrin v. Garfield, 37 Vt. 304;
Wasatch Irrigation Co. v. Fulton,
23 Utah, 466, 65 Pac. 205;
Strong V. Baldwin, 137 Cal. 432,
70 Pac. 288.
48. Weed v. Keenan, 60 Vt. 74,
6 Am. St. Rep. 93, 13 Atl. 804.
49. See Watkins v. Peck, 13
N. H. 360, 40 Am. Dec. 156;
Kana v. Bolton, 36 N. J. Eq. 21.
50. In Rollins v. Blackden,
112 Me. 459, Ann Cas. 1917A
875, 92 Atl. 521, it was held
that the prescriptive user of the
water from a well on another's
land was interrupted by the lat-
ter's grant to a third person of
a right to take water. Why
this should be so is not explain-
ed.
51. Pollard v. Rebman, 162
Cal. 633, 124 Pac. 235; Sears v.
Hayt, 37 Conn. 406; Barker v.
Clark, 4 N. H. 380, 17 Am. Dec.
428; Brayden v. New York, N.
H. & H. R. Co., 172 Mass. 225.
51 N. E. 1081; Jackson v. Cody,
(Tex. Ch.), 63 S. W. 302; Cun-
ningham V. San Saba County, 11
Tex. Civ. App. 557, 32 S. W. 928,
33 S. W. 892; Morris v. Blunt,
49 Utah, 243, 161 Pac. 1127. See
Wooldridge v. Coughlin, 46 W.
Va. 345, 33 S. W. 233.
52. Bree v. Wheeler, 129 Cal.
145, 61 Pac. 782; Authors v.
Bryant, 22 Nev. 242, 38 Pac. 439;
Wasatch Irrigation Co. v. Ful-
ton, 23 Utah, 466, 65 Pac. 205;
Smith v. North Canyon Water
Co., 16 Utah, 194, 52 Pac. 283.
But see, as to the character of
the interruption necessary. Gard-
ner V. Wright, 49 Ore. 609, 91
Pac. 286.
§ 527] Pkescriptiox. 2065
tion, and even a merely temporary stoppage or sus-
pension, resulting from the act of the landowner, has
a legal etfect different from a like stoppage or suspen-
sion which is purely voluntary, in as much as it indicates
a lack of that acquiescence by the landowner in the user,
on which acquiescence alone the presumption of a grant
can be based. ^-^ It has been said, however, that the
occasional interruption of passage across the land by the
storage thereon by the landowner of lumber and car-
riages does not prevent the acquisition of a prescrip-
tive right of passage, if such interruption were merely
casual, or accompanied by acts recognizing a right of
passage.^^
It has been decided that the interruption by the
landowner of the user, if secret and by stealth, as when
water appliances or structures are secretly destroyed by
him, will not prevent the acquisition of the prescriptive
right.^* This is based on the analogy of the law of ad-
verse possession of land, by which a secret re-entry does
not prevent the running of the statute. The analogy
is, however, not entirely satisfactory. It the owner of
land re-enters on the land by stealth, the possession of
the wrongdoer is regarded as continuing, while the mere
user of another's land cannot well be regarded o.s con-
tinuing, when it has been actually stopped by the
landowner, w^hether this was done secretly or openly.
Moreover the interruption of the user, although origi-
nally clandestine, must eventually become known to the
other party, except in the rare instance when tlie land-
owner voluntarily repairs the injury which he has
caused, while the re-entry of the landowner on land in
another's wrongful possession may, if temporary merelj',
continue unknown to the latter.
It has been said that an interruption of the user by
a bird person is immaterial. ^^^ This is presumably so.
52a. See editorial note 20 54.
Harv. Law Rev. 317. 54. Brattain v. Conn, 50 Ore.
53. Plimpton v. Converse, 42 156, 91 Pac. 458.
Vt. 712. And see "Webster v. 54a. Gardner v. Wright, 4!t Ore.
Lowell, 142 Mass. 324, 8 N. E. 609, 91 Pac. 28ti; Dorntree v.
2066 Real Property. [§ 528
That is, such interruption does not serve to indicate any
lack of acquiescence in the user on the part of the
landowner, and does not, for that reason, prevent the
establishment of a right by prescription. It is con-
ceivable, however, that the interruption by a third person
may be so prolonged as to deprive the user of the ele-
ment of continuity, or that after an interruption has
occurred b}^ reason of a third person's destruction of
appliances, no attempt is made to replace the appli-
ances so as to continue the user.
§ 528. Protests and interference by landowner.
Applying the theory that what makes a continued user
effective to confer a corresponding right is the acquies-
cence of the owner in such user, as raising a presumption
of a grant, it would seem to be sufficient to exclude such
presumption that the owner of the land has protested
against the user at any time during the prescriptive
period, and some courts have taken this view.^-^ The
weight of authority is", however, perhaps the other way,
that mere remonstrances or protests by the lando^vner
will not prevent the acquisition of a right by prescrip-
tion, in the absence of any physical interference with
the user, or legal proceedings based thereon.^'' These
Lyons, 224 Mass. 256, 112 N. E. 565; Reed v. Garnett, 101 Va.
610; Mclntire v. Talbot, 62 Me. 47, 43 S. E. 184; Woolridge v.
312. So as to mere efforts by a Coughlin, 46 W. Va. 345, 33 S.
stranger to interrupt. Mclntire E. 233; Crosier v. Brown, 66 W.
V. Talbot, 62 Me. 312. Va. 273, 25 L. R. A. (N. S.)
55. Stillman v. White Rock 174, 66 S. E. 326; Gwinn v.
Mfg. Co., 3 Woodb. & M. 538, Fed. Gwinn, 77 W. Va. 281, 87 S. E.
Cas. No. 13446; Chicago & N. W. 371. See also Conner v. Wood-
Ry. Co. V. Hoag, 90 111. 339; fill, 126 Ind. 85, 22 Am. St. Rep.
DartneU v. Bidwell, 115 Me. 227, 568, 25 N. E. 876; Tracy v.
98 Atl. 743; Powell v. Bagg, 8 Atherton, 36 Vt. 503.
Gray (Mass.) 441, 69 Am. Dec. 56. Cox v. Clough, 70 Cal.
262; Lehigh Valley R. Co. v. Mc- 345, 11 Pac. 732; Connor v. Sul-
Farlan, 30 N. J*. Eq. 180; Work- livan, 40 Conn. 26; Lehigh Val-
man v. Curran, 89 Pa. St. 226; ley R. Co. v. McFarlan, 43 N.
Nichols V. Aylor, 7 Leigh (Va.)
529]
Prescription.
2067
latter cases follow, in this regard, the analogy of the
decisions with reference to the statutes limiting the
period for the recovery of land.
That the owner of the land, during the prescrip-
tive period, institutes a legal proceeding on account of
the user of the land by another, prevents the latter
from acquiring the right by lapse of time,^" provided
at least the proceeding is conducted by the landowner
to a successful conclusion."*
§ 529. Tacking. As successive adverse possessions
of land by different persons may be tacked in order to
make up the statutory period, so successive adverse
users by different persons may be tacked for tlie same
purpose,^^ provided there is a privity or contractual
connection between them.'^° There is sufficient privity
for this purpose, it would seem, when the user is exer-
cised, for the benefit of neighboring land, by successive
J. L. 605; Morris Canal & Bank-
ing Co. V. Diamond Mills Paper
Co., 73 N. J. Eq. 414, 75 Atl.
1101, aff'g 71 N. J. Eq. 481, 64
Atl. 746; Dickinson v. Delaware,
L. & W. R. Co., 87 N. J. L. 264,
93 Atl. 703; Oregon Const. Co.
V. Allen Ditch Co., 41 Ore. 209,
69 Pac. 455; Okeson v. Patterson,
29 Pa. St. 22; McGeorge v. Hoff-
man, 133 Pa. St. 381, 19 Atl. 413;
Jordan v. Lang, 22 S. C. 159;
Ferrell v. Ferrell, 1 Baxt.
(Tenn.) 329; Angus v. Dalton,
3 Q. B. Div. 93, per Lush, J.,
4 Q. B. Div., per Thesiger &
Cotton, L. J. J. See Rollins v.
Blackden, 112 Me. 459, Ann. Cas.
1917A 875, 92 Atl. 521.
Temporary cessation of the use,
following upon demand that the
use be stopped, has been refer-
red to as tending to show that
the use was permissive. St.
Martin v. Skamania Boom Co.,
79 Wash. 393, 140 Pac. 355;
Eaton V. Swansea Water Works
Co., 17 Q. B. 267.
57. Alta Land & Water Co. v.
Hancock, 85 Cal., 219, 20 Am.
St. Rep. 217, 24 Pac. 645; Bunten
v. Chicago, R. I. & P. Ry. Co.,
50 Mo. App. 414; Workman v.
Curran, 89 Pa. St. 226; Cobb v.
Smith, 38 Wis. 21.
58. Postlethwaite v. Payne, 8
Ind. 104; Harmon v. Carter.
(Tenn.), 59 S. W. 656.
59. Bradley's Fish Co. v. Dud-
ley, 37 Conn. 136; Ross v. Thomp-
son, 78 Ind. 90; Sargent v.
Ballard. 9 Pick. (Ma'^s.) 2.t1:
Matthys v. First Swedish Church
of Boston, 223 Mass. 544. 112
N. E. 228; Leonard v. Leonard.
7 Allen (Mass.) 277; Dodge v.
Stacy. 39 Vt. 558.
60. Holland v. Long, 7 Gray
(Mass.) 486; Bryan v. City of
East St. Louis, 12 IH. App. 390.
2068 Real Property. [^ 530
owners or possessors of such land, between whom there
exists some legal relation other than that of disseisor
and disseisee.*^ ^ One decision,*'^ apparently to the
effect that a grantee of land cannot tack his grantor's
user of neighboring land unless the conveyance to
him specifically mentions such inchoate right, is based
on a misapplication of authorities to the effect that
there is no breach of a covenant of title by reason ot
the failure of an easement supposed to be appurtenant
to the land conveyed unless such easement was specfi-
cally mentioned in the conveyance.
§ 530. Personal disabilities. The statutory excep-
tions in the statutes of limitations in favor of persons
under legal disability are applied by analogy, in the
case of prescription, when the owner of the land is
under disability, and they are usually applied to the
same extent, and subject to the same restrictions.^"
So, while the statutory period does not begin to run
during the disability of the landowner, if this existed
when the right of action on account of the user of the
land accrued,^^ a disability thereafter arising will not,
by the weight of authority, extend the statutory
period,^^ and one disability cannot be tacked to an-
other.*'^
61. See ante, § 508. Edson v. Munsell, 10 Allen
62. Durkee v. Jones, 27 Cal. (Mass.) 557.
59, 60 Pac. 618. 65. Tracy v. Atherton, 36 Vt.
63. Occasionally the excep- 503; Mebane v. Patrick, 46 N. C.
tion in favor of a person under 23; Wallace v. Fletcher, 30 N. H.
disability is based on the theory 434; Edson v. Munsell, 10 Allen
that a grant by one who has (Mass.) 557; State v. Macy, 72
no power to make a grant can Mo. App. 427. Contra, Lamb v.
not be presumed. Watkins v. Crosland, 4 Rich. Law (S. C.)
Peck, 13 N. H. 360; McKinney 536; Thorpe v. Corwin. 20 N. J.
V. Duncan, 121 Tenn. 265, 118 L. 311. See Melvin v. Whiting.
S. W. 683. 13 Pick. (Mass.) 184, 185.
64. Lamb v, Crosland, 4 66. Reimer v. Stuber, 20 Pa.
Rich. Law (S. C.) 536; Melvin v. St. 458, 59 Am. Dec. 744.
Whiting, 13 Pick. (Mass.) 185:
§ 531] Presceiption. 2069
§ 531. Nature and extent of prescriptive right.
That the nature and extent of a prescriptive riglit
are measured by the character of the user in wliich it
originated is generally recognized,*^' but the applica-
tion of this rule frequently involves considerable prac-
tical difficulties. If it were applied with absolute
strictness, the right acquired would frequently be of
no utility whatsoever. A right of way, for instance,
would, as has been judicially remarked,*'^ be available
for use only by the people and the vehicles which have
passed during the prescriptive period. But the rule
is not applied with absolute strictness. "As in the case
of a grant the language is to be construed in the light
of the circumstances, so in the case of prescription
the use is to be looked at in the same way. The nature
of the right is not to be determined by the actual
proved use alone, but by that in connection with the
circumstances. ' '^^
There is obviously no difficulty when a right of
user is asserted entirely different in its nature from
the user during the prescriptive period. If, for in-
stance, one has used another's land for purposes of
passage only, he can acquire by such user no right to
overflow it, and if he has used it merely for the pur-
pose of an aqueduct he can thereby acquire no right
to use it for a drain. But if one has used another's
land for a drain from a house upon his land, the ques-
tion whether he may build another house upon his
land and discharge sewage from both the houses
67. Wright v. Moore. 38 Ala. Salem Flouring Mills Co., 13 Ore.
593, 82 Am. Dec. 731; Lawton v. 28, 7 Pac. 53, 15 Ore. 581, 16
Herrick, 83 Conn. 417, 76 Atl. Pac. 426; Elliott v. Rhett, 5 Rich.
986; Postlethwaite v. Payne, 8 L. (S. C.) 405, 57 Am. Dec. 750;
Ind. 104; Middlesex Co. v. City Shrewsbury v. Brown, 25 Vt.
of Lowell, 149 Mass. 509, 21 N. 197.
E. 872; Harvey v. Illinois Cent. 68. Cowling v. Higgenson, 4
R. Co., Ill Miss. 835, 72 So. 723; Mees. & W. 245 per Parke, B.
American Bank-Note Co. v. New 69. Baldwin v. Boston & M.
York El. R. Co.. 129 N. Y. R. R., 181 Mass. 166, 63 N. E.
252. 29 N. E. 302; Tucker v. 428, per Hammond. J.
2070 Eeal Property. [§ 531
through the drain is a more difficult one, and similar
questions as to whether the right acquired by a pre-
scriptive user would be, in the particular case, suf-
ficient to justify a slight extension of the user, or a
user in a slightly different manner, will readily sug-
gest themselves. The question appears ordinarily to
be, what are the nature and extent of the right, the
existence of which is to be presumed from the user
during the prescription period.'^" Does it, in the
particular case, include a right of user which differs in
degree but not in kind from the former user and, con-
ceding that it does, what constitutes a difference in
degree merely! Occasionally, when there has been
a change' or increase of user since the prescriptive
period, the court undertakes to determine tne per-
missibility of such new user by the consideration
whether it involves an increase in the burden upon the
servient tenement, '^^ Such a consideration, however,
would seem to be material merely in determining the
scope of the prescriptive right.'- A user which in-
volves a substantial increase of burden upon the ser-
vient tenement should not ordinarily be regarded as
within the prescriptive right, since such increased
burden was not what the landowner acquiesced in.
But, as before indicated, the nature or circunistances
70. See Cowling v. Higgenson, Crow, .32 Pa. 398; Atty. Gen. v.
4 Mees. & W. 245; Prentice v. City of Grand Rapids, 175 Mich.
Geiger, 74 N. Y. 341; Jones v. 503, 50 L. R. A. (N. S.) 473, 141
Crow, 32 Pa. 398. N. W. 890; Fansler v. City of
71. Wimbledon etc. Conserva- Sedalia,— (Mo.)— 176 S. W. 1102.
tors V. Dixon, 1 Ch. Div. 362; A prescriptive right to main-
Simons V. Munch, 115 Minn. 360. tain a dam to sluice logs, a tem-
132 N. W. 321. This criterion porary use, does not, it has
of an increase of burden has been held, involve a right to
been applied in several cases in maintain it for permanent use
connection with the pollution of in connection with a saw mill,
a stream. Mclntyre Bros. v. Simons v. Munch, 115 Minn.
McGavin, L. R. (1893) App. Cas. 360, 132 N. W. 321.
268: Mississippi Mills Co. v. 72. See the thoughtful discus-
Smith, 69 Miss. 299, 30 Am. St. sion in 8 Columbia Law Review
Rep. 546, 11 So. 26; Jones v. at p. 402,
§ 531]
Prescription.
2071
of the user may be such that the landowner could have
seen that a mere change in details of the user'^ would
increase the burden upon his land, and he is accord-
ingly to be regarded as having acquiesced in the user
as thus subject to possible extension.
It would seem that a user during the prescriptive
period which actually burdens but a limited portion of
space on another's land gives a right to burden that
space only. For instance, a user of land for purposes
of passage to a certain Avidth would not, it is con-
ceived, give a prescriptive right to use land to any
greater width^"* and, by the decided weight of authority,
the fiowage of a certain amount of land for the pre-
scriptive period gives no right, by tightening the dam,
or otherwise, to flow a greater amount of land.^^ So
it has been decided that the user of a wall as a party
73. In Bremer v. Manhattan
R. Co., 191 N. Y. 333, 334, 84
N. E. 59, it was held that a
prescriptive right to maintain
and operate an elevated railway
track included the right to
make a change in the motive
power and to increase the length
of the trains, since "the opera-
tion and length of the trains were
mere details of the right, not sub-
stantial elements or limitations of
it."
74. See District of Columbia v.
Robinson, 14 App. Cas. D. C.
512; Dymeak v. Christjensen, 279
111. 242, 116 N. E. 654.
75. Wright v. Moore, 38 Ala.
593, 82 Am. Dec. 731; Savannah
etc. Canal Co. v. Bourquin 51 Ga.
378; Iowa Power Co. v. Hoover,
166 Iowa, 415, 147 N. W. 858;
Whitehair v. Brown, 80 Kan. 297,
18 Ann. Cas. 216, 102 Pac. 783,
and note; Turner v. Hart, 71
Mich. 128, 15 Am. St. Rep. 243;
Cook V. Beard, 108 Mich. 17, 65
N. W. 518; Reason v. Peters, 148
Mich. 532, 112 N .W. 117; Gil-
ford V. Winnipeseogee Lake Co.,
52 N. H. 262; Griffin v. Bartlett,
55 N. H. 119; Carlisle v. Cooper,
21 N. J. Eq. 571; Horner v.
Stillwell, 35 N. J. L. 307; Stiles
V. Hooker, 7 Cow. (N. Y.) 266;
Russell V. Scott, 9 Cow. (N. Y.)
279; Morris v. Commander, 3
Ired L. (25 N. C.) 510; Tucker
v. Salem Flouring Mills Co., 13
Ore. 28, 7 Pac. 53; Mertz v.
Dorney, 25 Pa. 519; Sabine T.
Johns, 35 Wis. 183.
But in Maine & Massachusetts
the height of the dam is the
criterion, the person asserting
the easement having a right to
maintain the dam to the height
to which it was maintained
during the prescriptive period, ir-
respective of changes In the ex-
tent of the fiowage by reason of
the state of repair of the dam,
the extent of the use of the
water, the amount of water in tho
2C72 Real Peopeety. [§ 531
wall to a certain height gives no right to use it as
such to a greater height.'''^
The question of the user which may be made of
a prescriptive right of way has been the subject of a
number of adjudications. That the way was used for
a single purpose will ordinarily support a right of way
for that purpose only/" but that the way was used for
all purposes for which it was desired to use it justifies,
it has been held, a finding of a right of way for all
purposes for which it might reasonably be desired
for the use of the dominant tenement while substan-
tially in the same condition. '^^ ''But if the condition
and character of the dominant estate are substantially
altered — as in the case of a way to carry off wood from
wild land, which is afterwards cultivated and built
upon, or of a way for agricultural purposes to a farm,
which is afterwards turned into a manufactory or
divided into building lots — the right of way cannot be
used for new purposes, required by the altered condi-
tion of the property, and imposing a greater burden
upon the servient estate.""^ It has been held however
that there was no such substantial alteration of the
stream, or other causes. Voter 76. Barry v. Eblavitch, 84 Md.
V. Hobbs, 69 Me. 19; Cowell v. 95, 33 L. R. A. 294, 35 Atl. 170.
Thayer, 5 Mete. (Mass.) 253, 38 77. Bradburn v. Morris, 3 Ch.
Am. Dec. 400; Jackson v. Har- Div. 812; Wimbledon & Putney
rington, 2 Allen (Mass.) 242; Commons Conservators v. Dixon,
Daniels v. Citizen Sav. Inst. 127, 1 Ch. Div. 362; Atwater v. Bod-
Mass. 534. Occasionally, without fish, 11 Gray (Mass.) 150; Parks
stating that the height of the v. Bishop, 120 Mass. 340, 21 Am.
dam is the criterion, the courts Rep. 519.
refer to the right to Increase 78. Cowling v. Higgenson, 4
the height of the dam as the Mees. & W. 245; Dare v. Heath-
question at issue. See Cobia v. cote, 25 L. J. (N. S.) Exch. 245;
Ellis, 149 Ala. 108, 42 So. 751; Williams v. James, L. R. 2 C.
Haigh V. Lenfesty, 239 111. 227, P. 577; Sloan v. Holliday, 30
87 N. E. 962; Iowa Power Co. Law Times (N. S.) 757; Parks
V. Hoover, 166 Iowa, 415, 147 v. Bishop, 120 Mass. 340, 21 Am.
N. W. 858; McGeorge v. Hoffman, Rep. 519.
133 Pa. St. 381, 19 Atl. 431; Mc- 79. Parks v. Bishop, 120 Mass.
Innis V. Day Lumber Co., 102 340, per Gray, C. J. citing Wim-
Wash. 38, 172 Pac. 844. bledon, etc., v. Dixon, 1 Ch. D.
§ 531] Prescription. 2073
condition and character of the dominant tenement
when, during the prescriptive period, there was one
dwelling house thereon, and subsequently two additional
buildings were erected, each of which accommodated
two families. ^<>
After a right of way has been established along
a certain line on the basis of prescriptive user of the
servient tenement along that line, it cannot be changed
by the person entitled thereto to another lino,^'^'' though
such person may, it has been decided, deviate from
the original line, in case of an obstruction by the land-
owner.^'^'' In the case of a right of way appurtenant
to certain land by prescription, as in that of one by
grant, the way cannot be used for the purpose of
going to or from other land beyond.^*'^
In the case of an easement to use a wall on an-
other's land as a party wall, based on prescription, it
being limited by the extent of the use during the pre-
scriptive period, the one entitled to the easement has
no privilege of raising the wall,*'''^ or, if it is raised by
its owner, of using the additional part.^^® It would
seem that when two adjoining owners acquire by pre-
scription mutual party wall rights as regards a wall
erected on the division line, the same rule would apply,
so that neither could raise the wall as a whole with-
out the other's consent.
362; Williams v. James, L. R. 80d. Welford v. Gerard, 108
2 C. P. 577; Atwater v. Bod- Ky. 322, 56 S. W. 416; Bright v.
fish, 11 Gray 150. J. Bacon & Sons, 131 Ky. 848.
80. Baldwin v. Boston & M. 116 S. W. 268, 20 L. R. A. (N.
R. R. 181 Mass. 166, 63 N. E. S.) 386; McLaughlin v. Cecconi
428. 141 Mass. 252, 5 N. E. 261;
80a. Nichols v. Peck, 70 Conn. Bright v. Allan, 203 Pa. 294, 93
439, 66 Am. St. Rep. 122, 40 L. Am St. Rep. 769, 53 Atl. 251.
R. A. 81, 39 Atl. 803; Vance v. 80e. Barry v. Edlavitch, 84
Adams (Ky.) 112 S. W. 927. Md. 95, 35 Atl. 170; Bright v.
80b. Haley v. Concord, 59 N. Morgan, 218 Pa. 178, 11 Ann.
H. 9, 47 Am. Rep. 176. Gas. 708, 67 Atl. 210; Brown &
80c. Williams v. James, L. R. Hamilton Co. v. Johnson, 251 Pa.
2 C. P. 577. See ante § 350. 378, 96 Atl. 823.
2074
Real, Property.
[§ 531
A right which was regularly, during the prescrip-
tive period, exercised only during a certain season of
the year, can, after such period, be exercised only at
that season.*^^
A prescriptive riglit to divert water from a stream
has been regarded as independent of the use to which
the water may be put after diversion,^^ ]yy^i ^ g^b-
stantial increase in the amount diverted would ordi-
narily not be permissible.^^ A prescriptive right to
maintain an aqueduct through another's land has been
regarded as limited to the amount of water conducted
81. Cowell V. Thayer, 5 Mete
(Mass.) 253, 38 Am. Dec. 400
Griffin v. Bartlett, 55 N. H. 119
Davis V. Brigham, 29 Me. 391
Swan V. Munch, 65 Minn. 500, 67
N. W. 1022, 35 L. R. A. 743;
Carlisle v. Cooper, 21 N. J. Eq.
576; Hall v. Augsbury, 46 N. Y.
622; Gardner v. Wright, 49 Ore.
609, 91 Pac. 286; Cleary v.
Daniels,— Utah— , 167 Pac. 820.
82. Luttrel's Case, 4 Co. Rep.
86; Gallaher v. Montecito Valley
Water Co., 101 Cal. 242, 35 Pac.
770; Walton Cranberry Co. v.
Seamon, 171 Mich. 98, 137 N. W.
147. Compare Mastenbrook v.
Alger, 110 Mich. 414, 68 N. W.
213; Scranton Gas & Water Co.
V. Delaware, L. & W. R. Co., 240
Pa. 604, 47 L. R. A. (N. S.) 710,
88 Atl. 24.
83. S. O. & C. Co. V. Ansonia
Water Co., 83 Conn. 611, 78
Atl. 432; Stock v. Hillsdale, 155
Mich. 375, 119 N. W. 435; Irv-
ing V. Borough of Media, 194 Pa.
648, 45 Atl. 482.
In Michigan while it was de-
cided that a prescriptive right to
take water from a lake was lim-
ited to the amount diverted dur-
ing the prescriptive period (Stock
V. Hillsdale, 155 Mich. 375, 119
N. W. 435) it was later decided
by a majority of four judges to
three, that the extent of such a
right was to be measured not
by the amount taken, but the
level resulting from the taking,
and that consequently the pipe
could not be lowered as the
level became lower. (Kennedy
V Niles Water Supply Co., 173
Mich. 474, 43 L. R. A. (N. S.)
836, 149 N. W. 241.
In Mally v. Weidensteiner, 88
Wash. 398, 153 Pac. 342, it was
decided that a non riparian
owner who diverted one third of
the total flow of the stream dur-
ing the prescriptive period, had
no right to claim, upon a diminu-
tion of the total flow, a right to
more than one third, that is, a
right to the same number of
cubic feet per second as he en-
joyed during the prescriptive
period.
In Tinker v. Bessel, 213 Mass.
74, 99 N. E. 946, it appears to be
held that a prescriptive right ^^o
take water from a spring is to be
measured by the user which was
apparent to the landowner.
It has been said, as regards
§ 532] Pkesckiption. 2075
through it during the prescriptive period.^"* And it
has been decided that one who has, during the pre-
scriptive period, conducted water through an open
ditch on another's land, does not thereby acquire the
n<?ht to conduct water through covered pipes.*^
§ 532. Reciprocal prescriptive easements. The ques-
tion has occasionally arisen whether, when one has
acquired by prescription an easement in another's
land or in diminution of another's natural rights, such
other has a right to insist upon the continued exercise
of the easement. The question has arisen ordinarily^
if not exclusively, in connection with water rights.
There are a number of decisions adverse to any such
"reciprocal easement" in the owner of the servient
tenement,*'^ it having been decided, for instance, that a
riparian owner has no right to insist that an upper
owner, who has acquired a prescriptive right to main-
tain a dam in a certain way, shall continue to maintain
it in the same way,*'^ and likewise that one whose land
has been utilized for the prescriptive period for the
the prescriptive right to take Co. L. R., 6 Q. B. 678; Ark-
water from a watercourse, that wright v. Cell, 5 Mees & W. 203;
it must appear that a definite Gale, Easements (8th Ed.)'
amount of water was taken dur- 296. Editorial note 11 Columbia
ing the prescriptive period. Cus- Law Rev. at p. 770. The cases
ter Consol. Mines Co. v. City bearing on the subject are
of Helena, 52 Mont. 35, 156 Pac. stated and discussed at length in
1090; Hayes v. Silver Creek, etc. 3 Farnham, Waters, §§ 819 827b
Co. 136 Cal. 238, 68 Pac. 704; 828; and in 50 L. R. A.' at p!
Logan Guichard, 159 Cal. 592, 841, note to Pewaukee v. Savoy.
114 Pac. 989. 87. Weare v. Chase, 93 Me.
84. Shrewsbury v. Brown, 25 264, 44 Atl. 900; Brace v. Yale,
Vt. 197; Darlington v. Painter, 99 Mass. 488 (semble); Sparks
7 Pa. 473; Osten v. Jerome, 93 Mfg. Co. v. Town of Newton, 57
Mich. 196, 53 N. W. 7. N. J. Eq. 367, 41 Atl. 385; Fel-
85. Allen v. San Jose Land & ton v. Simpson, 11 Ired L. (33
Water Co., 92 Cal. 138, 15 L. R. n. C.) 84; Vliet v. Sherwood, 35
R. 93, 28 Pac. 215. Wis. 229: Contra, Belknap' v.
86. See in addition to the Trimble, 3 Paige, Ch. (N. Y.)
cases cited in the following notes, .577, 605; Middleton v. Gregorie,
Mason v. Shrewsbury & H. R. 2 Rich. L. (S. C.) 638.
2076 Eeal Property. [§ 532
discharge of water has no right to demand that the
water shall continue to be discharged on or over his
land.^^
So far as the doctrine of prescription is concerned,
the decisions above referred to would appear to be
absolutely unexceptionable. In order that one may
acquire a prescriptive right in another's land his user
of such land during the prescriptive period must be
actionable,^^ and the doctrine of reciprocal rights based
on prescription would seem to be tenable only on the
assumption that, because A has a right of action dur-
ing the prescriptive period against B by reason of B's
infringement of A's rights, B has a right of action
during such period against A, an assumption which is
evidently unwarranted. It may no doubt occur that
coincidently with A's adverse user of B's land, on ac-
count of which B has a right of action against A, B
makes an adverse user of A's land, on account of which
A has a right of action against B, but such a con-
junction of circumstances is necessarily of but in-
frequent occurrence. And as has been judicially re-
marked, ''the enjoyment of the easement is of itself no
evidence that the party enjoying it has become sub-
ject to the servitude of being bound to exercise the
easement for the benefit of the neighbor. A right of
way is no evidence that the party entitled thereto is
under a duty to walk; nor a right to eavesdropping on
the neighbor's land, that the party is bound to send on
his rainwater to that land."^^ In spite, however, of
88. Gaved v. Martyn, 19 C. well, 38 Ohio St. 518; Hill v.
B. N. S. 732; Oliver v. Lockie, 1^6 American Land & Live Stock Co.,
Ont. 28; Lambeye v. Garcia, 18 82 Ore. 202, 161 Pac. 403; Garns
Ariz. 178, 157 Pac. 977; Burk- v. Rollins, 41 Utah, 260, Ann. Gas.
hart V. Meiberg, 37 Colo. 187, 6 1915C, 1159, 125 Pac. 867; Roberts
L. R. A. N. S. 1104, 119 Am. St. v. Gribble, 43 Utah, 411, 134 Pac.
Rep. 279, 86 Pac. 98; Mitchell v. 1014; Lyons v. Ingle, 91 Wash.
Parks, 26 Ind. 363; Lake Drum- 179, 157 Pac. 460.
mond Canal & Water Co. v. Burn- 88a. Ajiie, § 524.
ham, 147 N. C. 41, 17 L. R. A. £9. Per Erie, C. J., in Gaved
(N. S.) 945, 125 Am. St. Rep. v. Martyn, 19 C. B. N. S. 732.
527, 60 S. E. 650; Peter v. Cas-
§ 532] Prescription. 2077
the valid theoretical objections to such a doctrine of
reciprocal rights by prescription, there are a number of
judicial expressions in its favor and the tendency of
the cases in this country appears to be in that direction,
so far as concerns rights as to water. It has, for
instance, been said that the rule as to the adverse
enjojanent of water must be reciprocal, and one who
has taken the water from the original channel, and has
continued to divert and enjoy it for a period beyond
the time fixed by the statute of limitations as to real
actions, cannot afterwards be permitted to restore it
to its original state when it will have the effect to
destroy or materially injure those through or by which
it formerly flowed.^^ And there are a number of cases
in which a like view has been asserted, with more or
less distinctness, as regards the right of one who has
changed the channel of a stream to restore it to its
former channel as against one who has enjoyed it dur-
ing the prescriptive period in its artificial channel.^^
It has also been asserted that one who has acquired
a prescriptive right of flowage on another's land can-
not discontinue or lessen the flowage to the detriment
of persons whose lands are subjected thereto as well
as to others,^^ and that an upper proprietor who has
90. Matthewson v. Hoffman, 77 gart v. Jaflrey, 75 N. H. 473, 28
Mich. 420, 6 L. R. A. 349, 43 N. L. R. A. (N. S.) 1050, 139 Am.
W. 879; Broadwell Special Drain- St. Rep. 729, 76 Atl. 123. Contra,
age District v. Lawrence, 231 111. Peter v. Caswell, 38 Ohio St. 518.
86, 83 N. E. 104; Kray v. In North Fork Water Co. v. Ed-
Muggii, 84 Minn. 90, 54 L. R. A. wards, 121 Cal. 662, 54 Pac. 69,
473, 87 Am. St. Rep. 332, 86 N. it was held that one who had a
W. 882. prescriptive right to conduct
91. Delaney v. Boston, 2 Harr.. water through a ditch on an-
(Del.) 489; Murchie v. Gates, 78 other's land could not alter the
Me. 300, 4 Atl. 698; Matthewson ditch so as to allow storm water,
V. Hoffman, 77 Mich. 420, 43 N. which had previously passed
W. 879, 6 L. R. A. 349; Smith away by the ditch, to run on the
V. Musgrove, 32 Mo. App. 241; land.
Shepardson v. Perkins, 58 N. H. 92. Kray v. Muggli, 84 Minn.
354; Woodbury v. Short, 17 Vt. 90, 54 L, R. A. 47:3, 87 Am. St.
387, 44 Am. Dec. 344. See Tag- Rep. .332, 86 N. W. 882; Fin &
2 R. P.— 56
2078 Real Property. [§ 532
acquired by prescription the right to change the
natural manner of flow of a stream cannot restore the
natural manner of flow to the detriment of mills
erected with reference to such changed manner of
flow.^^ In a considerable number of these cases, how-
ever, in which such reciprocal rights are recognized,
the element of equitable estoppel appears to have had
considerable weight, that is, the court considered that,
the servient owner having incurred expenditures under
the reasonable supposition created by the dominant
owner's conduct, that the exercise of the easement would
not be discontinued, the dominant owner should not be
allowed to discontinue it. The doctrine of estoppel is evi-
dently entirely independent of any doctrine of reciprocal
easements by prescription, and if the former doctrine is
otherwise applicable in favor of the servient owner,
it is difficult to see why its application should bo limited
to the case in which the user of his land by the domi-
nant owner has ripened into a right by reason of its
continuance for the prescriptive period.
So far as concerns the right of one who has, for
the prescriptive period, caused the water of a stream
to flow through another's land, subsequently to restore
the stream to its original channel, to the detriment of
such other, the latter might perhaps be protected, in
some states,*^^ upon the theory that, after the prescrip-
tive period has elapsed, even if not before, the arti-
ficial channel is to be regarded as the natural cliannel,
so far as concerns the rights of those througli whose
land it passes, and so in the case of a lake or pond
created by the flowage of another's land, the person
whose land is subjected in part to the flowage might be
Feather Club v. Thomas, — Tex. 93. Belknap v. Trimble, 3
Civ. App.— , 138 S. W. 150. See Paige 573; Murchie v. Gates, 78
also Smith v. Youmans, 96 Wis. Me. 300, 4 Atl. 698. See Marshall
103, 37 L. R. A. 285, 65 Am. St. Ice Co. v. La Plant, 136 Iowa,
Rep. 30, 70 N. W. 1115; Pewaukee 621, 12 L. R. A. (N. S.) 1073, ill
V. Savoy, 103 Wis. 271, 79 N. W. N. W. 1016.
436, 50 L. R. A. 836, 74 Am. St. 94. Ante, § 339(h).
Rep. 859.
§ 533] Prescription. 2079
regarded as in the position of a riparian owner on a
natural lake or pond, and as such entitled to object if
the person who created the pond or lake takes active
measures to lower its level. With this may be com-
pared the English view, that where an artificial water-
course or an artificial diversion of a natural water-
course is not in its nature merely temporary, tht owner
of land by or through which the water flows may have,
on the theory of prescription, a right to the uninter-
rupted flow of the water, or to make a particukir use
thereof, the question of whether a grant of such a right
shall be presumed being determined with reference to
the circumstances under which the artificial water-
course or diversion was presumably created, and the
mode in which it has been in fact used and enjoyed.^ ^
§ 533. Prescription for highways, (a) General
considerations. A right to use land for highway pur-
poses may usually be acquired by the public by its use
for such purposes under a claim of right for the
statutory period of limitation as to land. Such mode
of acquisition of highway rights is ordinarily referred
to as ''prescription,'"^^ and is usually based on the
theory that such user of the land raises the presump-
tion of a dedication, or of an appropriation of the land
by a statutory proceeding.^''' In some states there are
95. Arkwright v. Gell, 5 Mees. fiction of a grant can, however,
& W. 203; Gaved v. Martyn, 19 hardly be regarded as an inte-
C. B. N. S. 732; Wood v. Waud, gral part of the law of pre-
3 Exch. 748; Burrows v. Lang, scription in this country at the
(1901), 2 Ch. 508; Bailey & Co. present day.
V. Clark, Son & Morland, (1902), 97. Howard v. State, 47 Ark.
1 Ch. 649. 431, 2 S. W. 331; Schwerdtle v.
96. If prescription is to be Placer County, 108 Cal. 589, 41
regarded as necessarily based on Pac. 448; Daniels v. People, 21
the presumption of a grant, the 111. 439; Pittsburgh, C, C. & St.
term is not accurate as applied L. Ry. Co. v. Town of Crown
to the case of a highway, since Point, 150 Ind. 536, 50 N. E.
highway rights are created, not 741; Onstott v. Murray, 22 Iowa,
by grant but by dedication. See 457; Thomas v. Ford, 63 Md.
Angell, Highways, § 131. The 346, 52 Am. Rep. 513; Reed v.
2080
Beal Property.
[§ 533
statutory provisions in regard to the effect of iiser by
the public as establishing a highway.^^
Not only may long user by the public operate to
establish a highway otherwise non existent, but it may
also operate to change the line of the highway.^^ And
if the exact line or limits of the highway are otherwise
uncertain, prolonged user will serve to make them cer-
tain.^ Occasional decisions that passage by the public
off the actual line of the highway, although continued
for the prescriptive period, will establish no right to
continue such passage, if such divergence from the true
line of the highway is the result of mistake,^ are based
upon the analogy of the doctrine, asserted in some
Inhabitants of Northfield, 13
Pick. (Mass.) 94, 23 Am. Dec.
662; Willey v. Portsmoutli, 35 N.
H. 303; Comm. v. Cole, 26 Pa.
St. 187; note 5 Columbia Law
Rev. 608; note 57 Am. St. Rep.
744.
98. See Freshour v. Hihn, 99
Cal. 443, 34 Pac. 87; Chicago v.
Gait, 224 111. 421, 79 N. E. 701;
Strong V. Makeever, 102 Ind. 578,
1 N. E. 502, 4 N. E. 11; Neal
V. Gilmore, 141 Mich. 519, 104
N. W. 609; Elfelt v. Stillwater
St. Ry. Co., 53 Minn. 68, 55 N.
W. 116; Speir v. Town of New
Utrecht, 121 N. Y. 420, 24 N. E.
692; Stewart v. Frink, 94 N. C.
487; Walcott Twp. v. Skauge,
6 N. D. 382, 71 N. W. 544;
Comm. V. Kelly, 8 Gratt.- (Va.)
632: Dicken v. Liverpool Salt &
Coal Co., 41 W. Va. 511, 23 S.
E. 582.
99. Patton v. State, 50 Ark.
53, 6 S. W. 227; Patterson v.
Munyan, 93 Cal. 128, 129, 29 Pac.
250: Landers v. Town of White-
field, 154 111. 630, 39 N. E. 656:
Strong V. Makeever, 102 Ind. 578
1 N. E. 502. 4 N. E. 11; Joseph
V. Sharp, 172 Iowa, 254. 154 N.
W. 469; Stockwell v. Fitchburg,
110 Mass. 305; Meyer v. Peters-
burg, 99 Minn. 450. 109 N. W.
840; Zimmerman v. Snowden, 88
Mo. 218 (semile); Brandt v.
Olson, 79 Neb. 612, 113 N. W.
151, 114 N. W. 587; Comm. v.
Marshall, 137 Pa. 170, 20 Atl. 580;
Almy V. Church, 18 R. I. 182. 26
Atl. 58; State v. Lloyd, 133 Wis.
408. 133 N. W. 964; Christian-
son v. Caldwell, 152 Wis. 135,
139 N. W. 751.
1. Taeger v. Riepe, 90 Iowa,
484, 57 N. W. 1125; Comm. v.
Logan, 5 Litt. (Ky.) 286; Marl-
boro Twp. V. Van Derveer, 47 N.
J. L. 259; Western Railway of
Ala. V. Alabama G. T. R. Co., 96
Ala. 272, 17 L. R. A. 474, 11 So.
483.
2. Bolton V. McShane, 79
Iowa, 26; State v. Welpton, 34
Iowa, 144; Hamilton County v.
Garrett, 62 Tex. 602; Shanline
V. Wiltsie, 70 Kan. 177, 78 Pac.
436.
533]
Presckiption".
2081
states, that possession beyond one's boundary line,,
which is the result of mistake, is not adverse.^
(b) User by public necessary. The user by
the jjublic of private land for purposes of passage, in
order to establish a highway by prescription, must be
along substantially one line,^ as must a prescriptive
private way.^ A slight divergence is, however, it
seems, permissible, especially w^hen caused by the phys-
ical condition of the road.^
As to what constitutes a user by the public, it has
been said that the public means, in this connection, all
those w^ho have occasion for the user,'^ and that the
amount of travel is immaterial.^ On the other hand
it appears that user by a few individuals,^ or by the
residents in the neighborhood^^ is not sufficient. The
3. Ante, § 505.
4. Sprague v. Stead, 56 Colo.
538, 139 Pac. 544; O'Connell v.
Chicago Terminal Transfer R.
Co., 184 111. 308, 56 N. E. 355;
Hougham v. Harvey, 40 Iowa,
634; Schroeder v. Village of
Onekama, 95 Mich. 25, 54 N. W.
642; Montana Ore Purchasing
Co. V. Butte & B. Consol. Min.
Co., 25 Mont. 427, 65 Pac. 420;
South Branch R. Co. v. Parker,
41 N. J. Eq.. 489 5 Atl. 641;
Montgomery v. Somers, 50 Ore.
259, 90 Pac. 674; Brake v.
Crider 107 Pa. St. 210.. Sample
V. Harter, 37 S. D. 150, 156 N.
W. 1016; Hart v. Town of Red
Cedar, 63 Wis. 634, 24 N. W.
410.
5. Ante, § 525, note 41.
6. Vance v. Adams, — (Ky.) — ,
112 S. W. 927; City of Beatrice v.
Black. 28 Neb. 263, 44 N. W.
189; Kendall Smith Co. v. Lan-
caster County, 84 Neb. 654, 121
N. W. 960; Kurtz v. Hoke, 172
Pa. St. 165, 33 Atl. 549.
7. Louisville, etc., R. Co. v.
Etzler, 3 Ind. App. 562; Village
of Grandville v. Jenison, 84
Mich. 54, 47 N. W. 600; Easter
V. Overlea Land Co., 129 Md. 627,
99 Atl. 893; Jones v. Davis, 35
Wis. 376.
8. Louisville, etc R. Co. v.
Etzler, 3 Ind. App. 562; Bald-
win V. Herbst, 54 Iowa, 168, 6
N. W. 257; Village of Grand-
ville V. Jenison, 84 Mich. 54, 47
N. W. 600.
9. Harper v. State, 109 Ala.
66, 19 So. 901; Martin v. Peo-
ple, 23 111. 395; O'Connell v.
Chicago Terminal Transfer Co.,
184 111. 308; State v. Tucker, 36
Iowa, 485; Eddy v. Clarke. 38 R.
I. 371, 95 Atl. 851. See State
V. Auchard, 22 Mont. 14, 55 Pac.
361; Rice v. Pershall, 41 Wash.
73, 82 Pac. 1038; O'Connell v.
Chicago Terminal Transfer R.
Co., 184 111. 308, 56 N. E. 355.
10. Easter v. Overlea Land
Co. of Baltimore County, 129
Md. 627, 99 Atl. 893; State v.
2082 Eeal Property. [^ 533
result of the cases would seem to be that, while travel
over the land need not be frequent, it must not be
confined to persons who can be identified or segregated
from the members of the community as a whole, that
is, user by the public does not mean user by certain
specific members of the public.
(c) Adverseness of user. In order to establish
a highway by prolonged user of the land for highway
purposes, the user must be adverse,^ ^ and the expres-
sion ''adverse" in this connection presumabl}^ means
the same as in connection with the doctrines of adverse
possession and prescription for private rights of user,
a lack of recognition of any right in the landowner
ever to put an end to it. When the user is not adverse,
that is, when the user is accompanied by recognition of
such right in the landowner, the latter has no reason to
interfere with the user, and consequently no inference
of a right of user should be drawn from his failure to
do so. Furthermore, the very idea of a user for high-
w^ay purposes invoves a negation of the right in the land-
owner to put an end to such user. That the user is by
permission shows that the user is not adverse,^^ it
Lucas, 124 N. Car. 804, 32 S. E. 741; Stickley v. Sodus Tp., 131
553; Stotts v. Dichdel, 70 Ore. Mich. 510, 59 L. R. A. 287, 91
86, 139 Pac. 932, 933; Witter v. N. W. 745; Hamilton v. Village
Harvey, 1 McCord, L. (S. C.) 67, of Owego, 42 N. Y. App. Div.
10 Am. Dec. 650. 312, 59 N. Y. Supp. 103; Stewart
11. District of Columbia v. v. Frink, 94 N. C. 487, 55 Am.
Robinson, 180 U. S. 92, 45 L. Rep. 618.
Ed. 440, 14 App. Cas. (D. C.) That, under certain statutory
512; City of Chicago v. Borden, provisions as to highways by
190 111. 430, 60 N. E. 915; Ladd user, the user need not be ad-
V. Osborne, 79 Iowa, 93, 44 N. verse, see Strong v. McKeever,
W. 235; Mayberry v. Standish, 102 Ind. 578, 1 N. E. 502, 4 N.
56 Me. 432; Johanson v. Boston E. 11; Wellsville v. Hallock, (N.
& A. R. Co., 153 Mass. 79, 26 N. Y. Misc.), 139 N. Y. Supp. 961;
E. 238; Slater v. Gunn, 170 Bolger v. Foss, 65 Cal. 250.
Mass. 509, 41 L. R. A. 268, 49 3 Pac. 871 (semble) .
N. E. 1017; Pittsburgh, C. C. & 12. Jones v. Bright, 140 Ala.
St. L. Ry. Co. V. Town of Crown 268, 37 So. 79; Olson v. People,
Point, 150 Ind. 536, 50 N. E. 56 Colo. 199, 138 Pac. 21; Chi-
§ 533]
Pkescriptiox.
2083
necessarily involving a recognition of such right in
the landowner.
The recognition of the landowner's right to stop
the user being an affirmative fact, it is, it seems, for
him to show it, that is, the user of land by the public
may, in the ordinary case, be presumed to be adverse,^''
in the absence of circumstances tending to show the
contrary. A contrary presumption, however, that the
user is permissive, is generally recognized in the case
of wild or unoccupied land, especially if unenolosed.^^
cago V. Chicago, R. I. & P. Ry.
Co., 152 111. 561, 38 N. E. 768;
Baltimore & O. S. W. Ry. Co.
V. City of Seymour, 154 Ind.
17, 55 N. E. 953; Moffatt v.
Kenny, 174 Mass. 311, 54 N. E.
850; Weihe v. Macatawa Resort
Co., 198 Mich. 334, 164 N. W.
510; State v. Fisher, 117 N. C.
733, 23 S. E. 158; Bayard v.
Standard Oil Co., 38 Ore. 438, 63
Pac. 614; Ferdinando v. City of
Scranton, 190 Pa. St. 321, 42 Atl.
692; Gaines v. Merryman, 95 Va.
,660, 29 S. E. 738; Fitts v.
County, 78 Wash. 238, 138 Pac.
885.
13. Carter v. Walker, 186 Ala.
140, 65 So. 170, 171 (but see
Jones V. Bright, 140 Ala. 268, 37
So. 79; Belleview Cemetery Co.
V. McEvers, 168 Ala. 535, 53 So.
272); Hartley v. Vermillion, 141
Cal. 339, 74 Pac. 987 (semhle);
Thorworth v. Scheets 269 111.
573, 110 N. E. 42; Southern
Indiana R. Co. v. Norman. 165
Ind. 126, 74 N. E. 896; Meade
V. Topeka, 75 Kan. 61, 88 Pac.
574; Jefferson v. Callahan, 153
Ky. 38, 154 S. W. 898; Canton
Co. of Baltimore v. Mayor, etc.,
of City of Baltimore 104 Md.
.582, 65 Atl. 324; Brandt v. Ol-
son, 79 Neb. 612, 113 N. W. 151
(senible) ; White v. Town of
Edenton, 171 N. C. 21, 86 S. E.
170; Earle v. Boat, 63 S. C. 439,
41 S. E. 525; Hanson v. Taylor.
23 Wis. 547.
14. Brumley v. State, 83 Ark.
236, 103 S. W. 615; Ely v. Par-
sons, 55 Conn. 83, 10 Atl. 499;
O'Connell v. Chicago Terminal
Transfer R. Co., 184 111. 308, 56
N. E. 355; State v. Kansas City,
etc., R. Co., 45 Iowa, 139; State
V. Horn, 35 Kan. 717, 12 Pac.
148; Potter v. Magruder, 30 Ky.
L. Rep. 76, 97 S. W. 732; May-
berry V. Standish, 56 Me. 342;
Engle V. Hunt, 50 Neb. 358, 69
N. W. 970; Hutto v. Tindall, 6
Rich. Law, 396; State v. Rod-
man, 86 S. Car. 154, 68 S. E.
343; McKinney v. Duncan, 121
Tenn. 265, 118 S. W. 683; Cun-
ningham V. San Saba County, 1
Tex. Civ. App. 480, 20 S. W. 941;
Watson V. Board of Com'rs of
.A.dams County, 38 Wash. 662, 80
Pac. 201; Board of Com'rs of
Sheridan County v. Patrick, 18
Wyo. 130, 104 Pac. 531, 107 Pac.
748. So, it seems, in the case
of an open common in a town. Mc-
Kay V. Reading, 184 Mass. 140, 68
N. B. 43; Langley v. Gallipolis, 2
Ohio St. 107.
2084
Eeal Peopbety.
[§ 533
And if there is already a private way, which is open
to the use of the public, the public use thereof, to a
limited extent at least, cannot be presumed to be ad-
verse, in the absence of anything to show that it is so.^^
The fact that there was an ineffectual attempt
to dedicate does not make the user by the public per-
missive,^^ the case being analogous to that of an indi-
vidual claiming under an invalid grant of an ease-
ment." And likewise the public user is adverse if
based on a defective jrroceeding for the establishment
of a high way. ^^
(d) Necessity of claim of right. It is fre-
quently said that the user must be under a claim of
right in the public,^^ but it may be questioned whether
this means anything more than that it must be ad-
15. Shellhouse v. State, 110
Ind. 509, 11 N. E. 484; Sprow v.
Boston & A. 'R. Co., 163 Mass.
330, 39 N. E. 1024; Aikens v.
New York, N. H. & H. R. Co.,
188 Mass. 547, 74 N. E. 929;
Stickley v. Sodus, T. P., 131
Mich. 510, 59 L. R. A. 287, 91 N.
W. 745; Speir v. Town of Utrecht,
121 N. Y. 420, 24 N. E. 692; Cin-
cinnati & M. v. R. Co. V. Rose-
ville, 76 Ohio St. 10§, 81 N. E.
178; Bohrnstedt Co. V. Scharen, 60
Ore. 349, 119 Pac. 337; Root v.
Comm. 98 Pa. St. 170, 42 Am.
Rep. 614; Frye v. Village of
Highland, 109 Wis. 292, 85 N. W.
351.
16. Bassett v. Harwich, 180
Mass. 585, 62 N. E. 974.
17. Ante, § 519, note 69.
18. Emira Highway Com'rs. v.
Osceola Highway Corn's, 74 111.
App. 185; Richards v. Bristol
County Com'rs, 120 Mass. 401;
Neal V. Gilmore, 141 Mich. 519,
104 N. W. 609; Rogers v. Town
of Aitkin, 77 Minn. 539, 80 N. W.
702; State v. Auchard, 22 Mont.
14, 55 Pac. 361; Lydick v. State,
61 Neb. 309, 85 N. W. 70; Bryant
V. Tamworth, 68 N. H. 483, 39
Atl. 431; Bayard v. Standard Oil
Co., 38 Ore. 438, 63 Pac. 614;
Village of West Bend v. Mann,
59 Wis. 69, 17 N. W. 972.
19. Jones v. Bright, 140 Ala.
268, 37 So. 79; Lieter v. People,
33 Colo. 493, 81 Pac. 270; City of
Chicago V. Wildman, 240 111.
215,, 88 N. E. 559; Southern
Indiana R. Co. v. Norman, 165
Ind. 126, 74 N. E. 896; Fairchild
V. Stewart, 117 Iowa, 734, 89 N.
W. 1075; May v. Blackburn, —
Ky. — , 25 S. W. 112; Slater v.
Gunn, 170 Mass. 509, 41 L. R. A.
268, 49 N. E. 1017; Wills v. Reed,
86 Miss. 446, 38 So. 793; Quinn v.
St. Louis & S. F. R. Co., 253 Mo.
48, 161 S. W. 820; Nelson v.
Sneed, 76 Neb. 201, 107 N. W.
255; White v. Wiley, 59 Hun (N.
Y.) 618, 13 N. Y. Supp. 205;
§ 533] PnESCRiPTrox. 2085
verse,2" that is, must be ''as of right," and it must
necessarily be ''as of right in the public," if it is by
the public and adverse. It is recognized that this
requirement of claim of right involves no necessity
that each member of the public, in passing over the
land, shall state that he claims the right to do so as
one of the public,^! and the requirement of claim of
right appears ordinarily to be satisfied by acts and
circumstances of a character which serve to show that
the user is adverse.
(e) Necessity of notice of user. The public
user must be with the knowledge of the owner of the
land,22 or the circumstances must be such that he can
be charged with notice.^s
It has been said that the owner must be charge-
able with notice that the user is under claim of right
in the public,^* and in at least two states it is laid
down ^ that there must be acts on the part of the
municipal authorities sufficient to show notice that
state V. Fisher. 117 N. C. 733, 23 Sprow v. Boston & A. R. Co., 163
S. E. 158; Root v. Comm. 98 Pa. Mass. 330, 39 N. E. 1024.
170, .42 Am. Rep. 614; Sharp v. 22. Falter v. Packard, 219 111
Mynatt, 1 Lea (Tenn.) 375. Oc 356, 76 N. E. 495; state v.
casional decisions to the effect Green, 41 Iowa, 693; State v.
that a user by the public is Teeters, 97 Iowa, 458,' 66 N. W.
presumed not to be under claim 754; Graham v. Hartnett, 10 Neb.
of right (Merchant v. Markham, 518; Rice v. PershaU, 41 Wash
170 Ala. 278. 54 So. 236; Gulf & 73, 82 Pac. 1038.
S. I. R. Co. V. Adkinson, 117 23. Patton v. State, 50 Ark 53
Miss. 118, 77 So. 954) do not 6 S. W. 227; State v. Kansas City,
appear to harmonize with the etc. R. Co., 45 Iowa, 139; O'Con-
decisions (ante, this section, note nell v. Chicago Terminal Transfer
14) that such user in the case of R. Co., 184 111. 308, 56 N. E. 355;
enclosed land at least, is pre- Village of Manchester v. Clark-
sumed to be adverse. son, 195 Mich. 354, 162 N. W.
20. See Palmer v. Chicago, 248 115.
in. 201, 93 N. E. 765. 24. O'Connell v. Chicago Term-
21. Hansen v. Green, 275 111. Inal Transfer R. Co. 184 111
221, 113 N. E. 982; Shellhouse v. 308, 56 N. E. 355; 'sprow v.
State, 110 Ind. 509. 11 N. E. Boston & A. R. Co.', 163 Mass.
484; State v. Green, 41 Iowa, 693; 330, 39 N. E. 1024.
2086
Real Property.
[§ 533
the user is of that character.-^ If, however, the land-
owner is chargeable with notice of the user in the par-
ticular case, he might, it would seem, be charged with
notice of the character of the user, except when the
circumstances are such that the user is presumed to
be permissive, rather than adverse or under claim of
right, as when it is of wild and unoccupied land,^^ or
is upon the line of a private way which is open to tho
public.-"
(f) Continuity of user. The user of the land
by the public must be substantially continuous through
out the prescriptive period, in order to create a public
right,^^ and consequently, if the landowner, during such
period, erects a fence or other structure whii:'h pre-
vents a continuance of the user, no right is acquired.^^
25. Frink v. Stewart, 94 N. C.
484; Stickley v. Sodus Tp., 131
Mich. 510, 59 L. R. A. 287, 91 N.
W. 745; See Rice v. Pershall, 41
Wash. 73, 82 Pac. 1038.
26. See Watson v. Board of
Com'rs of Adams County, 38
Wash. 662, 80 Pac. 201; and ante,
this section, note 14.
27. See Sprow v. Boston &
A. R. Co., 163 Mass. 330, 39 N.
E. 1024 and ante, § 533(c), note
15.
28. State v. Green, 41 Iowa,
693; City of Topeka v. Cowee,
48 Kan. 345, 29 Pac. 560; Jen-
nings V. Tisbury, 5 Gray, 73;
Hodges V. West Bloomfleld, 186
Mich. 259, 152 N. W. 1056; State
V. Auchard, 22 Mont. 14, 55 Pac.
361; Bletk v. Keller, 73 Neb. 826,
103 N. W. 674; Bayard v. Stand-
ard on Co., 38 Ore. 438. 63 Pac.
614; In re Twenty-second Ave.
Southwest, 72 Wash. 99, 129 Pac.
884; Town of Rolling v. Emrich,
122 Wis. 134, 99 N. W. 464.
29. See Jones v. Phillips, 59
Ark. 35, 26 S. W. 386; O'ConneU
V. Bowman, 45 111. App. 654;
Weld V. Brooks, 152 Mass. 297,
25 N. E. 719; Jones v. New
York, N. H. & H. R. Co., 211 Mass.
521, 98 N. E. 607; Rolling v.
Emrich, 122 Wis. 134, 99 N. W.
464.
It is occasionally said that the
placing of such an obstacle to
travel prevents a prescriptive
highway because it shows an in-
tention on the part of the land-
owner to exclude the public user.
Harper v. State, 109 Ala. 66 19
So. 901; Whaley v. Wilson 120
Ala. 992, 24 So. 855; Shellhouse
V. State, 110 Ind. 509, 11 N. E.
484; Village of Peotone v. Illinois
Cent. R. Co., 224 HI. 101 79 N.
E. 678; Campau v. City of Detroit,
104 Mich. 560, 62 N. W. 718;
Shell V. Poulson, 23 Wash. 535,
63 Pac. 204; Megrath v. Nicker-
son, 24 Wash. 235, 64 Pac. 163.
In re Twenty-Second Ave. South-
west, 72 Wash. 99, 129 Pac. 884;
Jones V. Davis, 35 Wis. 376. This
means, it appears, that such ac-
tion on the part of the landlord
§ 533]
Presceiption.
2087
The fact, however, that he makes the exercise of the
user more difficult, as by erecting a fence with a
gate or bars therein, does not of itself interrupt the
user,^*^ though its erection, coupled with the fact that it
is allowed by the jDublic to remain, would seem to be
evidence tending to show that the user is not adverse.'^
It has been said that the public user is not suf-
ficient if it is always contested by the owner.^- Just
what this means does not clearly appear. A;.] is re-
marked above, the fact that the owmer erects gates or
bars, which operate to some extent to interfere with
travel, and which nevertheless are allowed by the
public to remain, tends to show that the user by the
public is not "as of right," but is permissive only,
and the fact that the owner places notices to that
effect on the gates, which are also allowed to remain''^
excludes any inference of acquies-
cence in the user as a basis for
prescription. In Chicago v. Gait,
224 111. 421, 79 N. E. 701, verbal
protests appear to be regarded
as sufficient for this purpose.
30. Mills & Allen v. Evans,
100 Iowa, 712, 69 N. W. 1043;
Hinks V. Hinks, 46 Me. 423: Weld
V. Brooks, 152 Mass. 297, 25 N.
E. 719; Cunningham v. San Saba
County, 11 Tex. Civ. App. 557, 32
S. W. 928, 33 S. W. 892. But
see Berry v. St. Louis & S. F.
R. Co., 124 Mo. App. 436, 101 S.
W. 714.
31. See Jones v. Phillips, 59
Ark. 35, 26 S W. 386; Huffman
V. Hall, 102 Cal. 26, 36 Pac. 417;
Township of IMadison v. Galla-
gher, 159 111. 105, 111. 105, 42 N. E.
316; State v. Cipra, 71 Kan. 714,
81 Pac. 488 (semhle) ; Louisville &
I. R. Co. v. Bailey, 33 Ky. L.
Rep. 179, 109 S. W. 336 (locked
gates opened on request) ; Easter
V. Overlea Land Co. of Balti-
more, 129 Md. 627, 99 Atl. 893;
Lewis V. City of Portland, 25
Ore. 133, 22 L. R. A. 736, 42 Am.
St. Rep. 772, 35 Pac. 256; Goelet
V. Board of Aldermen, 14 R. I.
295. But see. apparently to the
contrary, Weld v. Brooks, 152
Mass. 297, 25 N. E. 719; Webster
v. Lowell. 142 Mass. 234, 8 N. E.
54. Compare Pitser v. McCreery,
172 Ind. 663, 88 N. E. 303, 89
N. E. 317. That a gate to keep
in cattle does not prevent pre-
scription for a highway, see Clark
v. Hull, 184 Mass. 164.
32. Moragne v. City of Gads-
den, 170 Ala. 124, 54 So. 518.
And see City of Chicago v. Gait,
224 111. 421, 79 N. E. 701.
33. See Megrath v. Nickerson,
24 Wash. 235, 64 Pac. 163; In re
Southwest Twenty Second Ave. 72
Wash. 99, 129 Pac. 884.
2088 Eeal Propeety. [§ 533
is perhaps additional evidence to the same effect.^*
But whether the action of the owner in contesting the
public user merely by posting warnings not to tres-
pass would be sufficient to prevent the acquisition of
the right by the public, would seem to be open to ques-
tion. If it is impossible to prevent the public travel
without interfering with travel by those rightfully en-
titled, the safer course for him to adopt would seem to
be the construction of gates.
(f ) Recognition by municipal authorities. In
connection with the question of the establishment of
a highway by length of user, reference is frequently
made to the consideration whether the existence of
such a highway has been recognized by the municipal
authorities, by the making of repairs or otherwise, and
the cases appear to be in a state of considerable con-
fusion in this regard. Some cases assert the view that
such recognition is not necessary to the existence of
a prescriptive highway.^ ^ In so far as such recognition
may be regarded as a prerequisite to the imposition of
a liabilty upon the municipality for physical defects
in the highway,^*^ such a view appears to accord with
the rule that an acceptance of the dedication of land
as a highway cannot be inferred merely from public
user, for the purpose of imposing a liability upon the
municipality.'''' But in so far as public user is, for other
34. Tarpey v. Veith, 22 Cal. 67 Atl. 225; Porter v. Johnson,—
App. 289, 134 Pac. 367. Tex. Civ App— . 151 S. W. 599;
35. Carter v. Walker, 186 Ala. Seattle v. Smither's 37 Wash.
140, 65 So. 170: Madison Tp. 119, 79 Pac. 615; Mason County
V. Gallagher, 159 111. 105, 42 N. v. McReavy, 84 Wash. 9, 145 Pac.
E. 316: Menard County Road Dis- 993.
trict V. Berbe, 231 111. 147, 83 36. See State v. Kent County
N. E. 131; Jennings v. Tisbury, Com'rs, 83 Md. 377, 33 L. R. A.
5 Gray (Mass.) 73; Bassett v. 291, 35 Atl. 62; Downend v. City
Harwich, 180 Mass. 585. 62 N. of Kansas City, 156 Mo. 60, 51
E. 974; Smith v. Nofsinger, 86 L. R. A. 170, 56 S. W. 902; State
Neb. 834, 126 N. W. 659 (sembJe); v. Dry Fork R. Co., 50 W. Va.
Stevens v. Nashua, 46 N. H. 193; 235, 40 S. E. 447.
Harriman v. Moore, 74 N. H. 277, 37. Ante, § 483, note 81.
§ 533]
Prescbiption.
2089
purposes, ordinarily regarded as sufficient evidence
of acceptance of a dedication,^^ it would seem that, for
such other purposes, any acceptance or recognition by
the municipal authorities might be dispensed with when
there has been a public user for the prescriptive period.
Nevertheless the recognition of the highway by the
municipal authorities is, in a number of jurisdictions,
regarded as necessary in any case to make a highway
by prescription.^^ In some of the cases in which this
necessity is asserted, no reason is stated, vx^hile in
some it is said or intimated that this is necessary in
order to show a claim of right in the public.'* ° Adopt-
ing the latter view, the recognition would have to take
, place at the commencement of the prescription period
and continue throughout such period. Conceding, as
38. Ante, § 483, note 80.
39. For statements or sugges-
tions that such recognition is
necessary, see Southern R. Co.
V Combs, 124 Ga. 1004, 53 S. E.
508; Louisville & N. R. Co. v.
Hames, 135 Ga. 67, 68 S. E. 805;
Nichols V. State, 89 Ind. 298;
State V. Horn, 35 Kan. 717, 12 Pac.
148; Stickley v. Sodus Tp., 131
Mich. 510, 59 L. R. A. 287, 91 N.
W. 745; State v. Auchard, 22
Mont. 14, 55 Pac. 361; Speir v.
Town of Utrecht, 121 N. Y. 420,
24 N. E. 692; Smith v. Smythe,
197 N. Y. 457, 35 L. R. A. (N. S.)
524, 90 N. E. 1121; Boyden v.
Achenbech, 79 N. C. 539; State
V. Lucas, 124 N. C. 804, 32 S. E.
553; Ridings v. Marion County,
50 Ore. 30, 91 Pac. 22; Gaines
V. Merryman, 95 Va. 660, 29 S.
E. 738; Way v. Fellows, 91 Vt.
326, 100 Atl. 682; State v. Dry
Fork R. Co., 50 W. Va. 235, 40
S. E. 447.
Occasionally the statute re-
quires that the road be worked
by the county authorities. See
Rose V. Nolen, 166 Ky. 336, 179
S. W. 229; Rauch Co. v. Emery,
191 Mich. 188, 157 N. W. 419;
Town of Nells v. Sullivan, 125
Minn. 353, 147 N. W. 244; Bar-
nard Realty Co. v. City of Butte,
48 Mont. 102, 136 Pac. 1064;
Meservey v. Gulliford, 14 Idaho,
133, 93 Pac. 780.
40. State v. Green, 41 Iowa,
093; Stickley v. Sodus Tp. 131
Mich. 510, 515, 59 L. R. A. 287,
91 N. W. 745; Wills v. Reid, 86
Miss. 446, 38 So. 793; Hill v
McGinnis, 64 Neb. 187, 89 N. W.
783; People v. Osborn, 84 Hun.
441, 32 N. Y. Supp. 358; Stewart
V. Frink, 94 N. Car. 487; Blute
v. Scribner, 23 Wis. 357; Marsh-
field Land & Lumber Co. v. John
Week Lumber Co., 108 Wis. 268,
84 N. W. 434; Parrott v. Stewart,
05 Ore. 254, 132 Pac. 523; Board
of Com'rs Sheridan County v.
Patrick, 18 Wyo. 130, 104 Pac.
531, 107 Pac. 748.
2090
Eeal Peoperty.
[§ 533
suggested above, that user under claim of right means
merely adverse user/^ and that user is ordinarily to
be presumed to be adverse in the absence of evidence to
the contrary,^2 jt does not seem that recognition by the
municipal authorities should be regarded as essential,
though the fact of such recognition throughout the
prescriptive period is the strongest sort of evidence
that the user is not permissive merely.^ ^
(g) Width of highway. Ordinarily the width
of a highway based upon prescription is determined by
the extent of the user during the prescriptive period.^*
Other considerations, however, are frequently effective
to extend the exterior limits of the highway beyond the
line of actual travel.^^ If the user is based upon invalid
proceedings for the location of a highway, the width
named in such invalid location will ordinarily control*^
and enclosures, such as fences or buildings, along the
41. Ante, § 533(d), note 20.
42. Ante, § 504.
43. Smith v. Nofsinger, 86
Neb. 834, 126 N. W. 659; Wecker
V. Dommer, 97 Neb. 728, 151 N.
W. 157; O'Connell v. Chicago
Terminal Transfer R. Co., 184
III. 308, 56 N. E. 355; Parrott
V. Stewart, 65 Ore. 254, 132 Pac.
523; Sharp v. Mynatt, 1 Lea.
(Tenn.) 375.
44. District of Columbia v.
Robinson, 180 U. S. 92, 45 L. Ed.
440; Goerke v. Town of Manitou,
25 Colo. App. 482, 139 Pac. 1049;
Evans v. Bowman, 183 Ind. 264,
108 N. E. 956; Anderson v. City
of Huntington, 40 Ind. App. 130,
81 N. E. 223; Meade v. City of
Topeka, 75 Kan. 61, 88 Pac. 574;
Scheimer v. Price, 65 Mich. 638,
32 N. W. 873; Wayne County
Sav. Bank v. Stockwell, 84 Mich.
586, 22 Am. St. Rep. 708, 48 N.
W. 174; Arndt v. Thomas, 93
Minn. 1, 100 Am. St. Rep. 378,
106 Am. St. Rep. 418; State v.
Auchard, 22 Mont. 14,' 55 Pac.
361; Talmage v. Hunting, 29 N.
Y 447; Silverton v. Brown, 63
Ore. 418, 128 Pac. 45; Morse v.
Ranno, 32 Vt. 600; Prince Wil-
liam County V. Manuel, 118 Va.
716, 88 S. E. 54; Upper v. Lowell,
7 Wash. 460, 35 Pac. 363.
45. See Bayard v. Standard
Oil Co., 38 Ore. 438, 63 Pac.
614.
46. Pillsbury v. Brown, 82 Me.
450, 19 At. 858, 9 L. R. A. 44;
Marchand v. Maple Grove, 48
Minn. 271, 51 N. W. 606; State
V. Auchard, 22 Mont. 14, 55 Pac.
361; Bayard v. Standard Oil Co.,
38 Ore. 438, 63 Pac. 614; Upper
V. Lowell, 7 Wash. 460, 35 Pac.
363; Konkel v. Pella, 122 Wis.
143, 99 N. W. 453. But the
width named in the invalid loca-
tion will not control as against
533]
Prescbiption.
2091
line of the highway, maintaiued by the owners of the
land, will be given very great weight in detf rmining
the limits of the highway.*' Even where the width is
regarded as measured b}^ the user, it is not necessarily
to be confined to the beaten track or thread of actual
travel, it being essential that those using the road have
sufficient room to pass and repass,-*^^ and occasionally a
greater width being required for the purpose of proji-
erly improving the road.*'' The question of width is usu-
ally regarded as one of fact for the jury,^"'^ and statutory
provisions as to the width of highways are not ordi-
narily regarded as controlling.^^ Occasionally it has been
said that the public user is to be regarded as evidence
one whose fences blocked part
of such width. Samuel v. Sher-
man, 170 in. 265, 48 N. E. 576.
47. Middletown v. Glenn, 278
111. 149, 115 N. E. 847; Evans
V. Bowman, 183 Ind. 264, 108 N.
E. 956; Tilton v. Wenham, 172
Mass. 407, 52 N. E. 514; Wash-
ington Borough V. Steiner, 25
Pa. Super. Ct. 392; Whitesides
V. Green, 13 Utah. 341, 57 Am.
St. Rep. 740, 44 Pac. 1032. See
Watz V. Sunderland, 147 Mich.
96, 110 N. W. 507; Kendall Smith
Co. V. Lancaster Co., 84 Neb.
654, 121 N. W. 960.
48. Davis v. City of Clinton,
58 Iowa, 389, 10 N. W. 768;
Tilton V. Wenham, 172 Mass. 407,
52 N. E. 514; Arndt v. Thomas,
93 Minn. 1, 106 Am. St. Rep.
418, 100 N. W. 378; State v.
Morse, 50 N. H. 9; Whitesides
V. Green, 13 Utah, 341, 57 Am.
St. Rep. 740, 44 Pac. 1032; Bart-
lett v. Beardmore, 77 Wis. 356,
46 N. W. 494.
49. Marchand v. Town of
Maple Grove, 48 Minn. 271, 51
N. W. 606; Whitesides v. Green,
13 Utah, 341, 57 Am. St. Rep.
740, 44 Pac. 1032.
50. Meservey v. Gulliford, 14
Idaho, 133, 93 Pac. 780; Davis
V. City of Clinton, 58 Iowa, 389,
10 N. W. 768; Lawrence v. Mt.
Vernon, 35 Me. 100; Arndt v.
Thomas, 93 Minn. 1, 106 Am. St
Rep. 418, 100 N. W. 378; State
V. Morse, 50 N. H. 9; Bayard v.
Standard Oil Co., 38 Ore. 438,
63 Pac. 614; Burrows v. Guest,
5 Utah, 91, 12 Pac. 847; White-
sides V. Green, 13 Utah, 341, 57
Am. St. Rep. 740, 44 Pac. 1032;
Hamp V. Pend Oreille County,
102 Wash. 184, 172 Pac. 869.
51. Goerke v. Town of Mani-
tou, 25 Colo. App. 482, 139 Pac.
1049; Davis v. City of Clinton,
58 Iowa, 389, 10 N. W. 768. Com-
pare Yakima County v. Conrad
26 Wash. 155, 66 Pac. 411. Such
a statutory provision could not
extend the width as against an
owner of land adjoining the line
of travel, whose land was fenced.
Watz V. Sunderland, 147 Mich.
96, 110 N. W. 507.
2092 Eeal Peopeety. [§ 533
of a right in the public to use the land to the usual
width of a highway, by widening the travelled path, or
otherwise, as the exigencies of the public rnay re-
quire.^^
52. Sprague v. Wait, 17 Pick. 494. See Meservey v. Gulliford,
(Mass.) 309; Coffin v. Plymouth, 14 Idaho, 133, 93 Pac. 78; Arndt
49 N. H. 173; Kendall Smith v. Thomas, 93 Minn. 1, 100 N.
Co. V. Lancaster Co., 84 Neb. W. 378, 106 Am. St. Rep. 418;
G54, 121 N. W. 960; Bartlett v. City of Olympia v. Lemon, —
Beardmore, 77 Wis. 356, 46 N. W. Wash. — , 161 Pac. 363.
CHAPTER XXV.
ACCRETION.
§ 534. General considerations.
535. As rule of law or rule of construction.
536. Applicable only to land above water.
53?. Sudden and perceptible changes.
538. Accretion artificially produced.
539. Land appearing in place of land disappearing.
540. Accretions subject to existing incumbrances.
541. Vested right in future accretions.
542. Accretions to island.
543. Apportionment of accretions.
544. Formation of new islands.
§ 534. General considerations. When the line be-
tween water and the land bordering thereon is changed
by the gradual deposit of alluvial soil upon the margin
of the water or by the gradual recession of the water,
the owner of the land ordinarily becomes entitled to
the new land thus formed;' and, conversely, in case
land bordering on water is gradually washed away, or
the water otherwise gradually encroaches upon the
land, the owner ordinarily loses the land which has
thus been encroached on by the water, unless he re-
tains its ownership as having previously been entitled
1. Rex V. Yarborough, 3 B. Iowa, 241, 35 Am. St. Rep. 304,
& C. 91; Gifford v. Yarborough, 50 N. W. 983; Linthicum v. Coan,
5 Bing. 163; Jefferis v. East 64 Md. 439, 54 Am. St. Rep.
Omaha Land Co., 134 U. S. 178, 775, 2 Atl. 826; Widdecombe v.
33 L. Ed. 872; Hagan v. Campbell, Chiles, 173 Mo. 195, 61 L. R. A.
8 Port. (Ala.) 9, 3:5 Am. Dec. 267; 309, 96 Am. St. Rep. 507, 73 S.
St. Louis, I. M. & S. Ry. Co. v. W. 444; Saunders v. New York
Ramsey, 53 Ark. 314, 8 L. R. A. Cent. & H. R. R. Co, 144 N. Y.
559, 22 Am. St. Rep. 195, 13 S. 75, 26 L. R. A. 378, 43 Am.
W. 931; Fillmore v. Jennings, 78 St. Rep. 729, 38 N. B. 992; Caul-
Cal. 634, 21 Pac. 536; Chicago field v. Smyth, 69 Ore. 41, 138
Dock & Canal Co. v. Kinzie, 93 Pac. 227; Fulton v. Frandolig,
111. 415; Coulthard v. Stevens, 84 63 Tex. 330.
(2093)
R. P.— 57
2094 Real Propeety. [§ 535
to the land under the particular body or stream of
water, or that part thereof.^
When one acquires additional land by the deposit
of soil, he is said to acquire it by accretion or alluvion,
When he acquires it by the recession of the water, he
is more properly said to acquire it by reliction (or
dereliction), but the expression accretion is not infre-
quently applied in such a case as Avell as in tliat first
referred to, and it will, for the sake of convenience, be
so applied in the course of the following remarks. The
gradual loss of land by the action of the water is
occasionally referred to as "erosion," while its sudden
and violent removal or separation by such action is
spoken of as "avulsion."
§ 535. As rule of law or rule of constniction. The
legal effect of a change in the line between land and
water, such as is above referred to, is frequently- re-
garded as based on positive rules of law, that is, it is
said in effect that one acquires land whi-^h is added
to his land by the gradual action or recession of water,
and that likewise one loses land which is gradually
washed away or encroached upon by the water. It
appears, however, to be open to question whether there
are, properly speaking, any such rules of law, and
whether, so far as the legal effects of such physical
changes are concerned, they are not rather the result
of a general rule for the ascertainment of boundaries,
a rule of construction, in eifect, that if the boundary
of land is determinable with reference to the sea or
any body or stream of water, the boundary is pre-
sumably intended to vary as the particular physical
feature referred to may vary, provided the variation
2. In re Hull & Selby Ry. Co., Mo. 337, 50 Am. St. Rep. 450,
5 Mees. & W. 327; Warren v. 31 S. W. 592; Bouvier v. Strick-
Chambers, 25 Ark. 120, 4 Am. lett, 40 Neb. 792, 59 N. W. 550;
Rep. 23; Steele v. Sanchez, 72 Town of East Hampton v. Kirk,
Iowa, 65, 2 Am. St. Rep. 233, 84 N. Y. 218; Wilson v. Shiveley,
33 N. W. 366; Cox v. Arnold, 129 11 Ore. 215, 4 Pac. 324.
§ 535] Accretion. 2095
is gradual. It is ordinarily immaterial, as regards
results, which view is adopted, whether, for instance,
it is said that one whose land bounds on the sea gains
such land as may be left by the gradual recession of
the sea and loses such land as may be encroached upon
by the sea, or whether it is said that his boundary is
presumed to be intended to change as the sea changes.
In some cases, however, and for some purposes, it is
material.
In the first place, if we recognize a distinct doc
trine of accretion, in effect a rule of law that an owner
of land shall have whatever adjacent land may be
created by the gradual action or change of the water,
the intention of the parties interested in the delimita-
tion of the boundaries of the land is immaterial. In
the presence of such a doctrine, the fact that, in con-
veying the projDerty to its present owner, the grantor
expressly retained all future accretions, would be im-
material, as would be the fact that the conveyance, in
describing the land, made no reference to the body or
stream of water, or to any incident or characteristic
thereof. We do not find any case which explicitly de-
cides that one can, in conveying property bounding on
M^ater, retain any subse(iuent accretions thereto, but
there are dicta to that effect."' The effectiveness of
intention in this regard is also indicated by jud'cial as-
sertions that when the boundary is fixed by the deed at
a specified line without reference to the water, the
grantee cannot claim accretions beyond such line.*
And in accord with this view are occasional decisions
denying any right to accretions in favor of land bound-
ed on the edge of an artificial pond, on the ground that
3. People ex rel. Burnham v. 43, 88 S. W. 832; Bristol v. Car-
Jones, 112 N. Y. 597, 20 N. E. roll County, 95 111. 84; Swerin-
577; Minneapolis Trust Co. v. gen v. St. Louis, 151 Mo. 348,
Eastman, 47 Minn. 301, 50 N. 52 S. W- 346; Frank v. Goddin,
W. 82, 930; Frank v. Goddin. 193 Mo. 395, 112 Am. St. Rep.
193 Mo. 395, 112 Am. St. Rep. 423, 91 S. W. 1057; Volcanic
493, 91 S. W. 1057. Oil and Gas Co. v. Chaplin, 27
4. Perry v. Sadler, 76 Ark. Ont. L. Rep. 34, 484.
209G Real Property. [^ 535
the intention in naming such boundary was to convey
land only extending to the line of such edge as it then ex-
isted.^-'' The question whether there is a distinct doc-
trine of accretion, or whether the so called doctrine is
merely a rule for the ascertainment of boundaries on wa-
ter, appears to be clearly presented by cases involving
the right of one, whose non riparian land has become
riparian by the gradual encroachment of the water, to
claim land subsequently formed by the action of the
water. In such a case, the intention of the grantor of
the present proprietor, or of some person anterior to
him in the chain of title, was to convey land extending
only to a boundary away from the water, and conse-
quently if, because his land has become riparian, he is
given the benefit of accretions thereto, he is in efifect
given what it was never the intention of his predecessor
in title to convey. If there is a rule of law that ac-
cretions belong to the rii^arian proprietor, he 'is en-
titled to the accretions,^ while otherwise he is not so
entitled.^ The most extreme application of the former
view appears to be found in a Connecticut case,'^ in
which it was decided that w^hen the land of A. which
was originally on the East side of a river, but was not
4a. Cook V. McClure, 58 N. 6. That he is not entitled to
L. 437, 17 Am. Rep. 270; Eddy the accretions in such a case,
V. St. Mars, 53 Vt. 462, 38 Am. see Ocean City Ass'n v. Shriver,
Rep. 395; Holden v. Chandler, 64 N. J. L. 550, 51 L. R. A.
61 vt. 291, 18 Atl. 310. 425, 46 Atl. 690; Allard v. Cur-
5. That he is entitled to the ran, — S. D.— , 168 N. W. 761;
accretions in such a case, see Stockley v Cissna, 119 Fed. Rep.
Peuker v. Kanter, 62 Kan. 363, 812; 3 Farnham, Waters at p.
63 Pac. 617; Crandall v. Allen, 2498. See also Gilbert v. El-
118 Mo. 403, 22 L. R. A. 591, dridge, 47 Minn. 210, 13 L. R.
24 S. W. 172; Widdecombe v. A. 511, 49 N. W. 679; Maw v.
Chiles, 173 Mo. 195, 61 L. R. A. Bruneau, 37 S. D. 75, 156 N. W.
309, 96 Am. St. Rep. 507, 73 S. 792; Volcanic Oil & Gas Co.
W. 444; Welles v. Bailey, 55 Conn. v. Chaplin, 27 Out. L. Rep. 34,
292, 3 Am. St. Rep. 48, 10 Atl. 484.
565; editorial notes in 16 Harv. 7. Welles v. Bailey, 55 Conn.
Law Rev. 527, 26 Id. 185. 292, 3 Am. St. Rep. 48, 10 Atl.
565.
§ 535] Accretion. 2097
described, in the conveyance to him, with reference to
the river, came to lie on the West side, by reason of
a gradual Eastward change in the location of the river,
the fact that it became, in the course of the change,
riparian land on the West side of the river, entitled its
owner to claim by way of accretion all the land over
which any further Eastward change in the river caused
it to pass. Applying such a doctrine, if there were a
number of lots, no matter how many, over which a
river gradually passed, in the course of a transverse
change in its location, the owner of the lot on which
tlie river first impinged, it being made thereby riparian
land, would be entitled to all the lots over which the
subsequent changes in the river caused it to pass.
The law in regard to the effect on property rights
in land of a gradual change in the location of water is
adopted by the common-law writers from the civil law,*
and that in the latter system the so-called doctrine of
accretion or alluvion was, properly considered, a rule
for ascertaining the intention as to the boundaries of
land, may perhaps be inferred from the fact that it had
no application when the limits or boundaries of
the lands were fixed, that is, when they were what
were known as agri Umitati.^ A like idea, that
the doctrine of accretion does not apply if the
boundaries of the land are fixed, not with reference
to the water on w^hich the land happens to border, but
by other objects or by measurements, is occasionally
indicated by the common law writers. ^*^
8. See per Lindley, J., in Hunt's Boundaries & Fences (6th
Foster v. Wright, 4 C. P. D. 438 Sd.) 47.
at p. 447. 10. In Britton, Bk. 2, ch. 2,
9. Dig. 41, 1, 16. See Muni- pi. 7, it is said that one is
cipality No. 2 v. Orleans Cotton «;ititled to the increase "if
Press, 18 La. 122, 36 Am. Dec. certain bounds are not found."
624; Smith v. St. Louis Public And so it is said in Sir Mat-
Schools, 30 Mo. 290; Frank v. thew Hale's De Jure Maris, ch.
Godden, 193 Mo. 395, 112 Am. St. 1, that it is immaterial that the
Rep. 443, 1 S. W. 1057; Salkow- alteration be by insensible de-
ski's Private Roman Law, 399; grees, if "there be other known
2098 Real Property. [§ 535
Adopting the view of the subject of accretion above
indicated, that it is, in the last analysis, a rule, or
aggregate of rules, of construction rather than of law,
it would follow that there exists, in the case of land
bounding on water the bed of which is in the state, a
presumption that in so far as the original grant from
the state, or any subsequent conveyance in the chain of
title, bounded the land on the water or on any physical
feature incident thereto, it was the intention that the
location of the boundary should change as the line of
the water, or of the specified physical feature, might
gradually change in the future. And so when the line
of demarcation between lands belonging to two indi-
viduals is some stream or body of water, or a partic-
ular feature thereof, such as the edge or the centre of
the channel, it is presumed that, in so bounding the
land, it was the intention to have the boundary change
as the particular feature of the water referred to might
thereafter change. That the rules in regard to accre-
tion are rules for the ascertainment of the boundary,
rules of construction, in effect, has occasionally been
judicially stated.^ ^ A further argument in favor of
this view is to be found in the consideration that when
land is bounded on the center line of a stream or
body of water, the boundary moves as such center
line moves, although in such case the doctrine of ac-
cretion is apparently inapplicable.^^'*
The only decisions which appear to be absolutely
opposed to the view of the subject as a rule for the
determination of boundaries are those above cirod^ that
a non riparian owner becoming a riparian owner is
entitled to accretions, ^^ and several decisions to the
boundaries as stakes or extent ers v. Mathis, 42 La. Ann. 471,
of land." 21 Am. St. Rep. 38f;, 7 So. 605;
11. Jefferis v. East Omaha Minto v. Delaney, 7 Ore. 337;
Land Co., 134 U. S. 178, 33 L. Camden & Atl. Land Co. v.
Ed. 872; Chicago Dock & Canal Lippincott, 45 N. J. L. 405.
Co. V. Kinzie, 93 111. 425; Le 11a. Post, § 536, note 21.
Beau V. Given, 37 Mo. 556; Mey- 12. Ante, this section, note 5.
§ 535] Accretion. 2099
effect that one cannot claim land as an accretion which
first formed as a bar in the stream, and subsequently
became attached to the mainland by the gradual filling
in of the intervening space. ^^' As regards these latter
decisions, the view might, it is submitted, more prop-
erly be taken, that when land is conveyed as bounding
on the edge of a stream, or on the seashore, it is to
be regarded as continuing so to bound, irrespective of
the direction of the accretion which causes a gradual
change in the position of the boundary named.^"* The
owner of the mainland is not entitled to the accretions
to an island, and there might consequently arise, on
occasion, a question of some difficulty whether a partic-
ular formation away from the shore could be regarded
as an island, ^^ but there is quite as considerable diffi-
culty in the practical application of the view that ac-
cretions, in order to belong to the owner of the main-
land, must commence at the edge of his property and
work outwards. In the first case, it is impossible to
say in which direction accretions grow, since bars
ordinarily form beneath the water, and subsequently
become connected w^ith the main land by the filling up
of the intervening space, and there is no logical reason
for distinguishing in this regard between a bar a few
inches below the surface of the water, and one a few
inches above it. The question might furthermore be
suggested, does the rule that accretions cannot be
''saltatory," as it has been expressed, apply to a leap
of an inch or two inches, and if not, at what distance
does it commence to apply. Finally, it may be remark-
ed, the place of the inception and the direction of
13. Hammond v. Sheppard, 186 Kan. 511, 6 L. R. A. N. S. 162,
111. 235, 78 Am. St. Rep. 274, 117 Am. St. Rep. 534, 85 Pac.
57 N. E. 867; Crandall v. Smith, 763; Linthicum v. Coan, 64 Md.
134 Mo. Q^?'. 3G S. W. 612; De 439, 54 Am. Rep. 75, 2 Atl. 826.
Lassus V. Faherty, 164 Mo. 361, 14. It is so decided in King
58 L. R. A. 193, 64 S. W. 183; v. Young, 76 Me. 76, 49 Am. Rep.
Nix V. Pfeifer, 73 Ark. 201, 83 596.
S. W. 951; Fowler v. Wood, 73 15. Post, § 542, note 53.
2100 Real Propeety. [§ 536
progress of a gradual alluvial formation are ordinarily
at the time matters of negligible importance and in-
terest, and the memory thereof by witnesses, testifying
perhaps after an interval of a number of years, is
peculiarly apt to be fallacious, even when not intention-
ally false. It appears to be undesirable to make prop-
erty rights dependent on testimony of such an ordinarily
untrustworthy character.
§ 536. Applicable only to land above water. In
speaking of the acquisition of land by accretion, the
courts evidently have reference to visible land and not
to land covered by water.^" It would never be sug-
gested, for instance, when the bed of a stream or body
of water does not originally belong to the owner of
the bank or shore, that, because such bed is raised by
an alluvial formation gradually extending outwards
from his land, but not of such depth as to appeai- above
the water, he is entitled by accretion to that particular
stratum beneath the water. On the other hand, if the
owner of the bank or shore does own the bed of the
stream or body of water, or of part thereof, any verti-
cal addition to the bed, whether or not sufficient in depth
to appear above the water, belongs to him, not by
reason of the doctrine of accretion, but because his
ownership extends upwards as well as downwards, as
it does in the case of land absolutely dissociated from
water.^^ In other words, such new land belongs to
him merely because it is within the boundaries of his
land, the limits of his ownership^^
16. Hess V. Muir, 65 Md. 586, D. 17, 156 N. W. 591.
5 Atl. 540, 6 Atl. 673. Land 17. Ante, § 251.
cannot be acquired by accretion, 18. See St. Louis v. Rutz, 138
it is said, if it appears above the U. S. 226, 34 L. Ed. 941; Mulry
water merely temporarily. Ben- v. Norton, 100 N. Y. 424, 53 Am.
nett V. National Starch Mfg. Co., Rep. 206. 3 N E. 581; Hopkins
103 Iowa, 207, 72 N. W. 507; Academy v. Dickson, 9 Cush.
Sapp V. Frazier, 51 La. Ann. 544; Bussen v. Dickson, 97 III.
1718, 72 Am. St. Rep. 493, 26 So. App. 310; Griffin v. Johnson, 161
378; Anderson v. Ray, 37 S.
536] AccBETiox. 2101
As the courts, in recognizing the acquisition of
newly formed land, consider onh^ conditions 3S they
appear above the water, so, in recognizing the loss of
land by erosion, so called, they consider only conditions
so apparent. That is, the fact that, after the disap-
pearance of the strata which previously appeared above
the water, the lower strata beneath the water still
remain as before, as is usually the case, is not con-
sidered. The riparian proprietorship is regarded as
ceasing as to the low^er strata, so soon as the upper
strata disappear.
The consideration above referred to, that the doc-
trine of accretion has reference to visible land only
and not to land covered by w^ater, would seem to show
that it is not the governing principle in the following
cases. When land is bounded on the centre of a stream
as a monument,^*^ the centre of the stream is gtill the
boundary, although the location thereof is substantially
changed by the gradual change of the bed of the
stream.-*^ And likewise, if one owns the bed of a
stream, without any land outside the stream, he con-
tinues to own such bed, in spite of any change in the
location of the stream.^i In both of these cases the
person who owns the bed of the stream, or a portion
thereof, acquires, as the stream moves in the opposite
direction, the bed, or a portion of the bed, of the
stream in its new location, but this new acquisition,
being of land covered by water, cannot be based upon
in. 377, 44 N. E. 206; Linthicum W. 91; Fowler v. Wood, 7.S Kan.
V. Coan, 64 Md. 439, 54 Am. Rep. 511, 6 L. R. A. (N. S.) 162, 117
775; State v. Muncie Pulp Co.. Am. St. Rep. 534, 85 Pac. 763;
119 Tenn. 47, 104 S. W. 437. Cruikshanks v. Wilmer, 93 Ky.
19. Ante, § 445: 19, 18 S W. 1018; Trustees of
20. Nebraska v. Iowa, 143 U. Hopkins Academy v. Dickinson,
S. 359, 36 L. Ed. 186; Wallace 9 Cush. (Mass.) 544; Gerrish v.
V. Driver, 61 Ark. 429, 31 L. R. Clough, 48 N. H. 9; Niehaus v.
A. 317, 33 S. W. 641; Welles v. Shepherd, 26 Ohio St. 40.
Bailey, 55 Conn. 292, 3 Am. St. 21. Foster v. Wright, 4 C. P.
Rep. 48, 10 Atl. 565; State v. Div. 438; State v. Muncie Pulp
Livingston, 164 Iowa, 31, 145 N. Co., 119 Tenn. 47, 104 S. W. 437.
2102 Eeal Property. [§ 537
any doctrine of accretion. And when, as occurs in the
case first referred to, the land which he owns while
covered by w^ater, remains his after it is laid bare by
the transverse movement of the stream, he caimot be
regarded as newly acquiring such land, already owned
by him, upon the theory of accretion, or upon any
theory whatsoever.
§ 537. Sudden and perceptible changes. The rules
above stated, to the effect that the ownership follows, or
is presumed to follow, changes in the location of the
water, do not apply in the case of sudden and percepti-
ble changes, and such changes, whether the land en-
croaches on the water or the w^ater encroaches on the
land, effect no change in the ownership of the lociis in
quoP And so, if the middle line of a stream is the
boundary line between tw^o owners, the boundary line
remains the same, although, owning to a sudden change
in the location of the stream, that line ceases to be the
middle line of the stream.^'^ This distinction, when
looked at, not as a rule restrictive of a doctrine of ac-
cretion, and of a doctrine of encroachment by water
22. St. Louis V. Rutz, 138 U. 20 N. C. 62, 32 Am. Dec. 672;
S. 26, 34 L. Ed. 941; Nebraska Spigener v. Cooner. 8 Rich. L.
V. Iowa, 143 U. S. 359, 36 L. (S. C.) 301, 64 Am. Dec. 755.
Ed. 186; WaUace v. Driver, 61 23. Buttenuth v. St. Louis
Ark. 429, 31 L. R. A. 317, 33 S. Bridge Co., 133 IH. 535, 5 Am.
W. 641; Fuller v. Shedd. 161 111. St. Rep. 545, 17 N. E. 439: Smith
462, 33 L. R. A. 146. 52 Am. v. Miller, 105 Iowa, 688, 70 N.
St. Rep. 380, 44 N. E. 286; Kit- W. 123, 75 N. W. 499; Sweat-
teridge v. Ritter, 172 Iowa. 55, man v. Holbrook. 18 Ky L. Rep.
151 N. W. 1097; Fowler v. Wood. 870, 38 S. W. 691, 39 S. W.
73 Kan. 511. 6 L. R. A. N. S. 258; Rees v. McDaniel, 115 Mo.
162, 117 Am. St. Rep. 534, 85 Pac. 145, 21 S. W. 913; BouVier v.
7G3: Hahn v. Dawson. 134 Mo. Stricklett, 40 Neb. 792, 59 N.
581 36 S. W. 233; Iowa Railroad W. 550; Kinkead v. Turgeon,
Land Co. v. Coulthard, 96 Neb. 74 Neb. 573, 580, 1 L. R. A.
607, 148 N. W. 328; Mulry v. (N. S.) 762, 7 L. R. A. (N.
Norton, 100 N. Y. 424, 53 Am. S.) 316, 121 Am. St. Rep. 740,
Rep. 206, 3 N. E. 581; In re City 13 Ann. Cas. 43, 104 N. W. 1061,
of Buffalo, 206 N. Y. 319, 99 N. 109 N. W. 744: State v. Muncie
E. 850; Den d Lynch v. Allen, Pulp Co., 119 Tenn. 47. 104 S.
§ 537] AccEETTON. 2103
upon the land, but as a limitation upon a rule of con-
struction as to boundaries on waters, finds its reason
in the consideration that, in fixing the boundary ^^dth
reference to the water or some physical feature thereof,
it may be presumed that the parties in interest had in
mind the probability of its gradual change with the
passage of years, but did not have in mind the possibil-
ity of a sudden and perceptible change.
The distinction between a gradual and a sudden
change, on which the difference in the resulting rights
is based, has usually been viewed as dependent on
the question whether, in the particular case, the actual
process of change is perceptible, and it has not been
regarded as sudden, rather than gradual, merely be-
cause, at distinct periods of time, one may be able
to see that a change has occurred.^* Occasionally the
fact that the change took place as a result of a flood or
storm appears to have been regarded as making the
change a sudden one for the purpose of the distinction.^^
The distinction above referred to, between a grad-
ual and a sudden change in the location of the water,
or of some feature thereof, appears to have been to
some extent abandoned in connection with the Mis-
souri and other rivers of the middle west, the banks
Y/. 437; A. G. Winemau & Sons Coan, 64 Md. 439, 54 Am. Hep.
V. Reeves, 245 Fed. 254. 157 C. 775, 2 Atl. 826; Nix v. D'cberson,
C. A. 446. 81 Miss. 632, 33 So. 490; Camden
24. King V. Yarborough, 3 B. & Atlantic Ry. Co. v. Lippincott,
& C. 91; Jefferis v. East Omaha 45 N. J. L. 405: Halsey v. Mc-
Land Co. 134 U. S. 178. 33 L. Ed. Cormick. 18 N. Y. 147; Saunders
872; Nebraska v. Iowa, 143 U. v. New York Central & Hudson
S. 359, 36 L. Ed. 186; Philadel- River R. Co., 144 N. Y. 75, 26
phia Co. V. Stimson, 223 U. S. L. R. A. 378, 43 Am. St. Rep.
605. 56 L. Ed. 570: W&.rreu v. 729. 38 N. E. 992.
Chambers, 25 Ark. 120, 4 Am. 25. St. Louis v. Rutz, 138 U.
Rep. 24; Coulthard v. Stevens, S. 226, 34 L. Ed. 941; Fowler v.
84 lo^va, 241, 35 Am. St. Rep. Wood, 73 Kan. 511, 6 L. R. A.
304, 50 N. W. 98.3; Fowler v. (N. S.) 162, 117 Am. St. Rep.
Wood, 73 Kan. 511, 6 L. R. A. 534, 85 Pac. 763; Lynch v. Al-
(N. S.) 162, 117 Am Pt. Rep. len, 20 N. C. 190. 32 Am. Dec.
534, 85 Pac. 763; Linthicum v. 671.
210-i Real Pkopekty. [§ 537
of which are peculiarly subject to disintegration by
the action of the current. Such disintegration of the
banks, although ordinarily culminating in a sudden
and perceptible disappearance of the stratum of soil
above the level of the water, has been regarded as in-
volving a gradual rather than a sudden change, so that
the boundary of the land shifts in accordance with
the change,^*' This view might perhaps have been
based on the theory that the disintegration of the bank,
which finally culminates in the sudden disappearance
of its upper stratum, is itself gradual rather than sud-
den, but the tendency has been to regard the change
as gradual rather than sudden for the reason that the
soil, upon its removal by the water, loses all identity,
and is gradually and imperceptibly attached by way
of accretion to the banks of the river at other points
thereon.^'^ That is, by these decisions, apparently, the
continued preservation of the identity of the land or
soil separated from the bank is regarded as necessary
to render such separation sudden rather than gradual,
within the meaning of the rule that the boundary re-
mains unchanged in spite of a sudden change in the
stream.
The distinction between a sudden and perceptible
change on the one hand and a gradual and imjiercepti-
ble change on the other, is frequently difficult of ap-
plication, and it appears questionable whether, as is
ordinarily assumed in this connection, in the case of a
sudden change the process is necessarily more percepti-
ble than in the case of a gradual change. Perhaps a
preferable line of distinction, in so far as concerns land
on which the water has encroached, is that suggested
in some of the cases,^^ and occasionally strongly in-
26. Nebraska v. Iowa, 143 U. 40 Neb. 792, 59 N. W. 550; Denny
S. 359, 36 L. Ed. 186; BeUe- v. Cotton, 3 Tex. Civ. App. 634.
fontaiue Imp. Co. v. Niedring- 22 S. W. 122.
haus, 181 111. 426, 72 Am. St. 27. See Nebraska v. Iowa, 143
Rep. 269, 55 N. E. 184; McCor- U. S. 359, 36 L. Ed. 186.
mack V. Miller, 239 Mo. 463, 144 28. See cases cited ante, this
S. W. 101; Bouvier v. Strickett, section, note 26.
§ 538] AccBETiON". 2105
sisted upon, to the effect that the ownershixD of partic-
ular soil remains unchanged only when it retains its
identity, it being said that the distinction is that be-
tween "a sudden disruption of a piece of ground from
one man's land to another's which may be followed
and identified," and "that increment which slowly
or rapidly results from floods, but which is utterly
beyond the power of identification. "^^^
In case a stream cuts out a new channel through
the land, so as to separate parts of the land which were
formerly not separated, the owmership of each part
remains the same as before, unless at least the separa-
tion can be regarded as gradual rather than sudden.^''
To w^hat extent the suddenness of the change is control-
ling in this connection does not clearly appear. The
courts ordinarily refer to the change in the channel as
being sudden in character, but there is high authority
for considering the rule as the same even when the new
channel is gradually formed, the decisive consideration
being the lack of change in the location and character
of the land as to which the question arises." ^
§ 538. Accretion artificially produced. That the
change in the shore or bank is the result, either in
29. Benson v. Morrow, 61 Mo. W. 258; Cooley v. Golden, 117
352, quoted with approval in Mo. 33, 21 L, R. A. 300, 23 S.
Coulthard v. Stevens, 84 Iowa, W. 100; Kinkead v. Turgeou, 74
241, 35 Am. St. Rep. 304, 50 Neb. 573, 580, 1 L. R. A. (N.'s.)
N. W. 983; Yutterman v. Grier, 762, 7 L. R. A. (N. S.) 316, 121
112 Ark. 366, 166 S. W. 749. See Am. St. Rep. 740, 13 Ann. Gas.
also Nix V. Dickerson, 81 Miss. 43, 104 N. W. 1061, 109 N. W.
632, 33 So. 490. 744; McCormack v. Miller, 239
30. Nebraska v. Iowa, 143 U. Mo. 463, 144 S. W. 101.
S. 359, 36 L. Ed. 186; Missouri 31. Trustees of Hopkins Acad-
v. Nebraska, 196 U. S. 23, 49 L. emy v. Dickinson, 4 Gush.
Ed. 372; Belief ontaine Imp. Go. (Mass.) 544, per Shaw, G. J. See
v. Niedringhaus, 181 111. 426, 72 De Lassus v. Faherty, 164 Mo.
Am. St. Rep. 269, 55 N. E. 1B4; 361, 58 L. R. A. 193, 04 S. W.
Bonewitz v. Wygant, 75 Ind. 41; 183; Grady v. Royar, — (Mo.) — ,
Sweatman v. Holbrook, 18 Ky. 181 S. W. 428.
L. Rep. 872, 38 S. W. 691, 39 S.
2106
Real Property.
[§ 539
whole or in j^art, of human agency, is not ordinarily
regarded as affecting the application of the established
rules on the subject,^- subject to this limitation, how-
ever, that the owner of land abutting on the water
cannot himself extend its limits at the expense of ad-
joining proprietors by producing a condition which
causes an accretion to his land.^^ The question of tne
right of the owner of land thus to extend his land as
against the state or a state agency would be detcrrajned
with reference, not so much to the law of accretion,
as to the right of a litoral proprietor, in that jurisdic-
tion, to reclaim land covered by water.'^ That the
owner of land on tide water does not become the owner
of "made" land, w^hich results from filling in in front
of his land under authority from the state has been
occasionally recognized."^
§ 539. Land appearing in place of land disappear-
ing. It has occasionally been said that if part of one's
land disappears by erosion or submergence, and sub-
32. Lovingston v. St. Clair
County, 64 lU. 56, 16 Am. Rep.
516; Bruudage v. Knox, 279 111.
450, 117 N. E. 123; Adams v.
Roberson, 97 Kan. 198, 155 Pac.
22; Adams v. Frothingham, 3
Mass. 352, 3 Am. Dec. 151; Tatum
V. St. Louis, 125 Mo. 647, 28 S.
W. 1002; Whyte v. City of St.
Louis, 153 Mo. 80, 54 So. 478;
Halsey v. McCormick, 18 N.
Y. 147 (dictum); Steers v. City
of Brooklyn, 101 N. Y. 51, 4 N.
E. 7; Gillihan v. Cieloha, 74
Ore. 462, 145 Pac. 1061; State v.
Sturtevant, 76 Wash. 158, 135
Pac. 1035, 138 Pac. 6o0; Standly
V. Perry, 3 Can. Sup. 356. Com-
pare Dana v. Jackson St. Wharf
Co., 31 Cal. 118, 89 Am. Dec. 164;
Lewis V. John L. Roper Lumber
Co., 113 N. C. 55, 18 S. E. 52.
33. Atty. Gen. of Southern
Nigeria v. John Holt & Company,
Ltd, (1915) App. Cas. 599;
People ex rel. Blakeslee v.
Commrs, 135 N. Y. 447, 32 N. E.
139; Saunders v. New York Cent.
& H. R. R. Co., 144 N. Y. 75,
26 L. R. A. 378, 43 Am. St. Rep.
729, 38 N. E. 992; Ball v. Stack,
2 Whart. (Pa.) 508, 30 Am. Dec.
278; Menominee River Lumber
Co. V. Seidl, 149 Wis. 316. 135
N. W. 854 (as against state).
34. Ante, § 305.
35. Patton v. City of Los An-
geles, 169 Cal. 521, 147 Pac
141; Sage v. New York, 154 N.
Y. 61, 61 Am. St. Rep. 592, 58
L. R. A. 606, 47 N. E. 1096. See
Hoboken v. Pennsylvania R. R.
Co., 124 U. S. 656, 31 L. Ed.
543.
§ 540] Accretion. 2107
sequently land forms or reappears in the same place,
the latter land belongs to the person who owned the
land which disappeared.^'^ Such a statemeni, however,
does not appear to accord with the authorities to the
etfect that, by the gradual encroachment o? -^ater on
one's land, one loses the part encroached on," and it
would seem to be true only when the encroachment is
sudden and perceptible, or there appears an intention
that the boundary shall remain in the same location in
spite of a gradual change in the location cf the water,
or for some other reason the locality covered bv the
land which disappeared remains in the same ownership
after the disappearance as before. ^^
§ 540. Accretions subject to existing incumbrances.
When land is dedicated for a public use of such a charac-
ter as to render its continued extension to the Avater de-
sirable, as for instance for a highway leading to the
water or for a park, the dedication is presumed to ex-
36. Chicago v. Ward, 169 111. Columbia Law Rev. 370; 16 Harv.
392, 38 L. R. A. 849, 61 Am. St. Law Rpv. 527.
Rep. 185, 48 N. E. 927; Hughes In St. Louis v. Rutz, 138 U. S.
V. Birney's Heirs, 107 La. Ann. 226, 34 L. Ed. 941, in which it
664, 32 So. 30; Mulry v. Norton, was held that one whose land
100 N. Y. 424, 3 N. E. 586, 53 was washed away re-acquired
Am. Rep. 206; State v. Muncie land formed in the same place,
Pulp Co., 119 Tenn. 4, 104 S. it was explicitly stated that
W. 437; Stockley v. Cissna, 119 such washing away was "rapid
Fed. 812. and perceptible in its progress."
37. Ante, § 534, note 2. A like statement might be made
38. Wallace v. Driver, 61 Ark. in regard to the disappearance
429, 31 L. R. A. 317, 33 S. W. of the land in Fowler v. Wood,
641; Holcomb v. Blair, 25 Ky. 73 Kan. 511, 6 L. R. A. (N. P.)
L. Rep. 974, 76 S. W. 843; Cox 16, 117 Am. St. Rep. 534, 85 Pac.
V. Arnold, 129 Mo. 337, 50 Am. 763, and such appears to be the
St. Rep. 450, 31 S. W. 592; Vog- meaning of the statement in
elsmeier v. Prendergast, 137 Mo. Lord Hale's De Jure Maris, cap.
271, 39 S. W. 83; Frank v. God- 4. See Hall, Foreshore (2nd
din, 193 Mo. 390, 112 Am. St Ed.) at p. 130, as quoted In
Rep. 493, 91 S. W. 1057; In re Ocean City Ass'n v. Shriver, 64
City of New York, 206 N. Y. 319, N. J. Law 550, 51 L. R. A. 425,
99 N. E. 850; editorial notes, 7 4G Atl. 690.
2108
Eeal Propeety.
[§ 540
tend as far as the water, although this, by reason of ac-
cretions to the land, becomes more distant after the
dedication is made.^^ "The presmnption is that the in-
tent was that the way would reach the water so as to en-
able the public to enjoy the navigation of the stream. "*°
Likewise, it has been decided that when a highway was,
by statutory proceedings, laid out extending to the water,
or to some particular feature of the water, it continued
to extend thereto in spite of any change that might occur
in the water.^^ The grant of a private right of way
extending to the water would no doubt ordinarily be
construed in the same way as is a dedication for high-
way purposes.^^ And a restrictive covenant in regard
to shore land has been regarded as applying to land
added thereto by accretion.^^
A lease for years of land, bounding on water, is,
like a conveyance in fee simple, presumed to intend
the water to remain the boundary, in spite of any
gradual change in the location thereof ,^^^ And this is
likewise the case when a mortgage is made of such
land.44
39. Doe V. Jones, 11 Ala. 63
Town of Freedom v. Norris, 128
Ind. 377, 27 N. E. 869; Cook v.
Burlington, 30 Iowa, 94, 6 Am.
Rep. 649; Godfrey v. Alton, 12
111. 29, 52 Am. Dec. 476; Mayor
of Jersey City v. Morris Canal
& Banking Co., 12 N. J. Eq. 547;
Hathaway v. City of Milwaukee,
132 Wis. 249, 9 L. R. A. (N, S.)
778, 122 Am. St. Rep. 975, 111
N. W. 570, 112 N. W. 455. That
a contrary intention may be in-
ferred from the circumstances,
see Mark v. West Troy, 151 N. Y.
453, 45 N. E. 842.
40. State v. Yates, 104 Me.
360, 22 L. R. A. (N. S.) 592,
71 Atl. 1018, per Savage, J.
41. Newark Lime & Cement
Mfg. Co. V. Newark, 15 N. J.
Eq. 64; Hoboken Land & Imp.
Co. V. Mayor, etc., of Hoboken,
36 N. J. L. 540; State \. Yates,
104 Me. 360, 22 L. R. A. (N. S.)
592, 71 Atl. 1018; Dana v. Crad-
dock, (36 N. H. 593, 32 Atl. 757.
42. See Lockwood v. New York
& N. H. R. Co., 37 Conn. 387.
43. Bridgewater v. Ocean City
Ass'n, 85 N. J. Eq. 379, 96 Atl.
905.
43a. Cobb v. Lavalle, 89 lU.
331, 31 Am. Rep. 91; Rutz v.
Kehr,— (111.)— , 25 N. E. 957; Wil-
liams V. Baker, 41 Md. 523.
44. Cobb V. Lavalle, 89 111.
331, 31 Am. Rep. 91; Cruik-
shanks v. Wilmer, 93 Ky. 19, 18
S. W. 1018; Allen v. St. Louis,
I. M. & S. R. Co., 137 Mo. 205,
38 S. W. 957.
§ 541] Accretion. 2109
A lien or incumbrance on the land, which is created
by operation of law, such as a right of dower,*^ binds
subsequent accretions to the land, for the reason, it
seems, that it is necessarily co-extensive with the
ownership of the land, and the latter is presumed to
extend to the water without reference to any gradual
change which may take place in the location of the
water.^^
It has been decided that if, after the statute of
limitations has partially run in favor of one in adverse
possession of land bounding on the water, land is ad-
ded thereto by accretion, he acquires, upon the subse-
quent running of the balance of the limitation period,
the title to the newly formed land as well as to that
originally existing. This is for the reason, it is said,
that "the indicia of the actual possession of him who
held on the main land are extended over the forming
accretion and bring it within his actual posses9ion."'*^
Presumably a like view w^ould be taken in the case of
adverse user of land by the public or an individual for
passage to the water, that is, the user w^ould be re-
garded as in theory extending over the accretion then
forming or liable to form in the future, for the purpose
of giving a right by prescription.*'^
§ 541. Vested right in future accretions. It has
been occasionally stated that a riparian owner has no
vested right as to future accretions.^^ This is pre-
45. Lombard v. Kinzie, 7;i 111. 48. Western Pac. R. Co v.
446. Southern Pac. Co., 151 Fed. 37f>,
46. Benne v. Miller, 149 Mo. 80 C. C. A. 606, Cohen v. United
228, 50 S. W. 824, quoted and States, 162 Fed. 364; Eisenbach
applied in Bellefontaine Improve- v. Hatfield, 2 Wash. 250, 26 Pac.
ment Co. v. Niedrlnghaus, 181 539. The cases of Taylor v.
111. 426, 72 Am. St. Rep 2oj, Underhill, 40 Cal. 471; Chicago,
55N. E. 184; Chicago & N. W. Ry. R. I. & P. Ry. Co. v. Porter, 72
Co. V. Groh, 85 Wis. 641, 55 N. Iowa, 426, 34 N. W. 286, occa-
W. 714. sionally cited to this effect, do not
47. Compare note in 22 Harv. support the statement.
Law Rev. at p. 610.
2 R. P.— 58
2110 Real Pkopekty. [§ 542
sumably correct as regards his right to have conditions
remain such that accretions may form in the f^^ture in
front of his land/^ but it appears questionable as re-
gards his right to such accretions as do form.^" For in-
stance, if the state grants land bounded by the shore,
and it is clearly the intention that the grant sliall ex-
tend to the shore regardless of any change that may
take place in the location thereof, the state cannot, it is
conceived, make such intention nugatory by enacting
that no accretion shall accrue to the benefit of any
litoral owner. And in the case of land bounded by the
edge of a river, it would hardly be permissible for the
legislature to deprive the grantee of such land of the
right to future accretions, and to give them to his
grantor, by establishing a conclusive presumption that
in such a case the boundary line is intended to remain
in the same location in spite of any change in the edge
of the stream as a result of accretions to the land.
§ 542. Accretions to island. In the case of an
island, the same rule applies as in the case of land
bounded by water on one side only, that is, the bound-
aries are presumed to vary with any gradual change in
the line between the land and the water or, e.s it is
otherwise expressed, the owner of an island is entitled
to land added thereto by accretion to the same extent
as the owner of land on the bank or shore of the main-
49. In Freeland v. Pennsyl- with the utility of land actually
vania R. Co., 197 Pa. 529, 58 L. owned by him.
R. A. 206, 80 Am. St. Rep. 850. 50. There are dicta to the ef-
47 Atl. 745, it was decided that feet that one has a vested right
a riparian owner could recover to future accretions, in County of
damages for the loss of futufe St. Clair v. Lovingston, 23 Wa'l.
alluvium by reason of the erec- (U. S.) 46, 23 L. Ed. 59; Hohl
tion of a ra'ilway embankment v. Iowa Cent. R. Co., 162 Iowa,
higher up the stream, but there 66, 143 N. W. 850; Municipaiity
the alluvium was accustomed to No. 2 v. Orleans Cotton Press,
form, not horizontally adjacent 18 La. 122, 36 Am. Dec. 624;
to plaintiff's land, but I'pon it. Meyers v. Mathis, 42 La. Ann.
That is, tnere was an inte-ierence 471, 21 Am. St. Rep. 385, 7
§ 542] Accretion. 2111
land.^^ In case accretions to the island and to the
mainland eventually meet, the owner of each, it is said,
owns the accretions to the line of contact,''"^ or, as we
would prefer to express it, the boundary of an island,
as that of the mainland, changes as its edge or shore
line changes, and when there is no longer any island,
owing to the growth of the accretions, he to whom the
island belonged owns to where its edge or shore line
was last visible.
The question may arise, in this connection, whether
a formation of land which appears in the stream is of
sufficient size, importance and permanence, to be re-
garded as an island. It has been said in this connection
that not everything which rises above highwater mark
can be called an island, that there may be reefs and
rocks and other accumulations that are not such in any
essential sense, and it may be a question of fact whether
sand heaps and bars, separated from tlie mainland only
by narrow channels or sloughs, are islands. ^^
So. 605. See Linthicum v. Coan, 590, 184 S. W. 891; Naylor v.
64 Ind. 439, 54 Am. Rep. 775, 2 Cox, 114 Mo. 232, 21 S. W. 589.
Atl. 826; Webber v. Axtell, 94 52. BeUefontaine Imp. Co. v.
Minn. 375, 6 L. R. A. (N. S.) Niedringhaus, 181 111. 426, Tj
194, 102 N. W. 915. That after Am. St. Rep. 269, 55 N. E. 184;
the federal government granted Fowler v. Wood, 73 Kan. 511, 85
land as bordering on a lake, Pac. 763, 117 Am. St. Rep. 534,
it could not deprive the grantee 6 L. R A. (N. S.) 162; Bigelow
of land formed by accretion v. Hoover, 85 Iowa, 161, 19 Am.
is decided in Knudsen v. Oman- St. Rep. 296, 52 N. W. 124;
son, 10 Utah, 124, 37 Pac. 250. Cooley v. Golden, 117 Mo. 33,
51. St. Louis v. Rutz, 138 U. 21 L. R. A. 300, 33 S. W. 100;
S. 226, 34 L. Ed. 941; Fillmore Hahn v. Dawson, 134 Mo. 581, 36
v. Jennings, 78 Cal. 634, 21 Pac. S. W. 233; Moore v. Farmer. 156
536; Glassell v. Hansen, 135 Cal. Mo. 33, 79 Am. St. Rep. 504,
547, 67 Pac. 964; Griffin v. John- 56 S. W. 493. See People v.
son, 161 in. 377, 44 N. E. 206; Warner, 116 Mich. 228, 74 N.
Holman v. Hodges, 112 Iowa, 714, W. 705.
58 L. R. A. 673, 84 Am. St. Rep. 53. Peters, C. J., in Babson v.
367, 84 N. W. 950; Stark v. Meri- Tainter, 79 Me. 368. 10 Atl. 368.
wether, 98 Kan. 10, Ann. Cas. It has been decided by the same
1918E, 993, 157 Pac. 438; Perks court that an elevation of muscle
& Higgins V. McCracken, 169 Ky. bed, occasionally covered by the
2112
Real Property,
[§ 543
§ 543. Apportionment of accretions. In making
the division between adjoining litoral or riparian own-
ers of the land formed by accretion, the courts have
usually adopted the rule of the civil law, by wbich the
new water front is divided between them in the same
proportions as the old water front, the side boundary
lines being- run in a straight course from the points of
division on the old frontage to the points of division on
the new.^^ It is generally conceded, however, even by
the decisions which adopt this rule of division in the
ordinary case, that it is subject to modification under
particular circumstances,^^ and that especially in fixing
the extent of the frontage the ''general available line"
thereof should be taken rather than the actual lino as
extended by deep indentations or sharp projections.
In at least one case the lines were extended from the
points of division on the old water front to pro]»ortion-
water, is not an island. Thorn-
ton V. Foss, 26 Me. 402.
54. Johnston v. Jones, 1 Black.
(U. S.) 210, 17 L. Ed. 117;
Malone v. Mobbs, 102 Ark. 542,
Ann. Cas. 1914A, 479, 145 S. W.
193, 146 S. W. 143; Kehr v.
Snyder, 114 111. 313, 55 Am. Rep.
866, 2 N. E. 68; Hammond v.
Shepard, 186 111. 235, 78 Am. St.
Rep. 274, 57 N. E. 867; Berry
V. Hoogendoorn, 133 Iowa, 437,
108 N. W. 333; Newell v. Leath-
ers, 50 La. Ann. 162, 69 Am. St.
Rep. 395, 23 So. 243; Deerfield
V. Arms, 17 Pick. (Mass.) 41,
28 Am. Dec. 276; Blodgett & D.
Lumber Co. v. Peters, 87 Mich.
498, 49 N. W. 917, 24 Am. St
Rep. 175; Smith v. Leavenworth,
101 Miss. 238, 57 So. 803; De
Lassus V. Faherty, 164 Mo. 361,
58 L. R. A. 193, 64 S. W. 183;
Batchelder v. Kenniston, 51 N.
H. 496, 12 Am. Rep. 143; O'Don-
nell V. Kelsey, 10 N. Y. 415;
Northern Pine Land Co. v. Bige-
low, 84 Wis. 157, 21 L. R. A. 776,
54 N. W. 496; Hathaway v. City
of Milwaukee, 132 Wis. 249, 9 L.
R. A. (N. S.) 778, 122 Am. St.
Rep. 975, 112 N. W. 455.
55. Malone v. Mobbs, 102 Ark.
542, Ann. Cas. 1914A, 479, 145 S.
W. 193, 146 S. W. 143; Kehr v.
Snyder, 114 111. 313, 55 Am. Rep.
866, 2 N. E. 68; City of Peoria
V. Central Nat. Bank, 224 111. 43,
12 L. R. A. (N. S.) 687, 79 N.
E. 296; Stark v. Meriwether,
98 Kan. 10, Ann. Cas. 1913E.
993, 157 Pac. 438; Blodgett &
Davis Lumber Co. v. Peters, 87
Mich. 498, 24 Am. St. Rep. 175, 49
N. W. 917; Smith v. Leavenworth.
101 Miss. 238, 57 So. 803; Batch-
elder v. Keniston, 51 N. H. 496,
12 Am. Rep. 143; Thornton v.
Grant, 10 R. I. 477, 14 Am. Rep.
701; Hubbard v. Man well, 60
§ 513] AccEETioi^. 2113
ate i^oints of division, not on the new front, but on the
thread of the stream.^*'
Occasionally the new land formed in a stream has
been divided by drawing straight lines from the
division points on the old front at right angles to the
general course of the stream,°^ and sometimes the
division has been made by continuing the side lines of
the properties in exactly the same direction through the
newly formed land.^^ This latter method of api^ortion-
ment would seem best to accord with the theory of ac-
cretion, above advocated,^^ that one acquires title tc the
newly formed land merely because the muniment of title
is construed as making the water the boundary regard-
less of change in the location of the water. P^or in-
stance, if a conveyance describes the side boundary as
running in a certain course to the water, it should
run in that course regardless of any change in t]ie loca-
tion of the water. But the courts have not looked at
the subject from this point of view, and have occasion-
ally repudiated in express terms the method of appor-
tionment referred to.^'^ They have a]i])arently had in
mind chiefly the securing a fair division of the new
frontage, a consideration which, it would seem, is of
much greater importance in the case of navigable
waters than in the ca§e of those not navigable.
This matter of the apportionment of accretions
has been occasionally discussed with referenr>^ to the
analogous case of the apportionment of the ''flats" or
the shore among the owners of the uplands, in cases in
which the state has relinquished the ownership of the
Vt. 235, G Am. St. Rep. 110, 14 App. 479, 2 Pac. 86; Gorton v.
Atl. 693. Rice, 153 Mo. 676, 55 S. W. 241;
56. Kehr v. Snyder, 114 111. Hubbard v. Manwell, 60 Vt. 235.
313, 55 Am. Rep. 886, 2 N. E. 68. 6 Am. St. Rep. 110, 14 Atl. 693,
57. Gorton v. Rice, 153 Mo. 59. Ante, § 535.
076, 55 S. W. 241; Miller v. Hep- 60. Kehr v. Snyder. 114 III.
burn, 8 Bush (Ky.) 326. 313, 55 Am. Rep. 866, 2 N. E.
58. Stockley v. Cissna, 119 68; Berry v. Hoogendoorn, 133
Fed. 812, 56 C. C. A. 324 (sem- Iowa, 437. 108 N. W. 923; Cran-
ble); McCamon v. Stagg, 2 Kan. dall v. Allen, 118 Mo. 403, 22
2114 'Real. Peoprrty. [§ 543
flats,*^^ and like considerations have been recognized
as applicable in the two cases, as they have, in
determining the rights of riparian or litoral owners,
as against each other, to construct improvenients in
front of their laud.^- In all these cases the difficulty
of arriving at a just mode of apportionment is partic-
ularly emphasized when the lands belonging to the
various proprietors are located on a bay or cove, and
varying rules have been suggested as to the most desir-
able method of apportionment in such a case, the under-
lying idea of all of which, however, is to give to eacli
proprietor the same proportionate access to the water
as he previously had.®^
When a lake, the bed of which originally belonged
to the state, becomes dry, the question as to the owner-
ship of the bed is a difficult one. It appears to de-
pend in the first place upon the direction or directions
in which the recession of the water occurred^ each
owner of abutting land being entitled by ''accretion"
to land left dry as the water receded from his shore.
Frequently, however, it would be impossible to ascertain
the direction of the recession of the water, and in such
a case the court would presumably have to proceed
on the theory that the whole bed of the lake became dry
at one time, and fix the lines of division, as between
individual proprietors, as if the ownership had not
originally been in the state.^^* In case it appears
that, in the course of the gradual disappearance of
the water, islands formed or appeared, these would be-
L. R. A. 591, 24 S. W. 172; 62. See Blodgett & Davis Lum-
Manchester v. Point Street Iron ber Co. v. Peters, 87 Mich. 498,
Works, 13 R. I. 355. 24 Am. St. Rep. 175, 49 N. W.
61. See Comm. v. City of Rox- 917; Thornton v. Grant, 10 R.
bury, 9 Gray (Mass.) 451; Won- I. 477, 14 Am. Rep. 701,
son V. Wonson, 14 Allen (Mass.) 63. See editorial notes, 122
85; Thornton v. Grant, 10 R. I. Am. St. Rep. 986. 21 L. R. A.
477, 14 Am. Rep. 701; Lowndes 776, 25 L R. A. (N. S.) 257.
v. Wickes, 69 Conn. 15, 36 Atl. 63a. Ante, § 445.
1072.
§ 544] AccBETiox. 2115
long to the state,^^^ and so the state would be entitled
to any extensions of such islands caused by the further
recession of the water away therefrom.®^*^
§ 544. Formatioii of new islands. An island, when
formed in a stream or body of water by the deposit of
alluvial matter therein, belongs to the owner of the
land beneath the water, on which the island is formed,
whether such owner be the stat€ or an individual.^^^
So, if the island is on both sides of a line dividing the
lands of different owners, the island belongs to both
owners,^* This is evidently not so much by force of a
doctrine of accretion as by reason of the fact that the
island is within the limits of the ownership of the
particular proprietor. A new formation on bis land
belongs to him just as much as the old formation.
If an island which first forms opposite the land of
one riparian proprietor gradually extends by accretion
opposite the land of another proprietor, the island be-
longs, not exclusively to the fonner, but in part to the
former and in part to the latter.^-^
An island which is formed, not by the deposit or
increase of alluvial matter, but by a change in the
course of a river, operating to cut off from the mainland
a ix)rtion of land previously constituting a pa^T of the
63b. Post. § 544. 53 Am. Rep. 206. 212, 3 X. E.
63c. See Hammond v. Shepard. 581; McCullough v. Wall. 4 Rich.
186 111. 235, 78 Am. St. Rep. 274, (S. C.) 6S. 53 Am. Dec. 715;
57 N. E. 876. Menominee River Lumber Co. v.
63d. St. Louis t. Rutz, 138 U. Seidl, 149 Wis. 316, 136 N W.
S. 226, 34 L. Ed. 941; Glassell 854.
V. Hansen, 135 Cal. 547, 67 Pac 64. Trustees of Hopkins k^&d-
964; Middleton v. Pritxihard, 4 emy v. Dickinson. 9 Cush (Mass.)
111. 510, 38 Am. Dec. 112; East 548: Wiggenhorn r. Kountz, 23
Omaha Land Co. v. Hansen. 117 Xeb. 690. 8 Am. St. Rep. 150, 37
Iowa. 96, 90 N. W. 705; Wilson X. W. 603; State v. Muncie Pulp
V. Watson. 144 Ky. 352, Ann. Cas. Co., 119 Tenn. 47, 104 S. W
1913 A 774, 138 S. W. 283; Cox v. 43"; 3 Kent's Comm. 428.
Arnold. 129 Mo. 337. 50 Am. St. 65. Archer t. Southern Ry. Co.,
Rep. 450, 31 S. W. 592; Muliy 114 Miss. 403, 75 So. 251.
V. Norton. 100 X. Y. 424. 4-:d.
2116 Real Property. [§ 544
mainland, continues in the same ownership as before.^®
provided at least the change in the course of the stream
can be regarded as sudden.^^
66. Trustees of Hopkins Acad- 64 S. W. 183; Grady v. Royar,
emy v. Dickinson, 9 Cush. (Mo) 181 S. W. 428; Bonewitz
(Mass.) 544; De Lassus v. Faher- v. Wygant, 75 Ind, 41.
ty, 164 Mo. 361, 58 L. R. A. 193, 67 Se& ante, § 537.
CHAPTER XXVI.
ESTOPPEL.
§ 545. Assertion of after acquired title.
(a) General considerations.
(b) Character of conveyance.
(c) Necessity and character of covenants.
(d) Cases to which doctrine inapplicable.
(e) Persons bound by the estoppel.
546. Estoppel by representation.
547. Improvements by oral grantee.
§ 545. Assertion of after acquired title — (a) Gen-
eral considerations. At common law, a transfer of
land by feoffment, fine, or common recovery operated
to transfer any estate or interest which might be sub-
sequently acquired by the transferor, in case he did not,
at the time of making the assurance, have such an
estate as he purported to transfer.^ A lease by in-
denture had a partially similar effect, in thai", if the
lessor did not have any interest in the land at the time
of making the lease, an interest subsequently acquired
by him became subject thereto, though this was not al-
ways the case if the lessor had some interest at the date
of the lease.^ Conveyances other than those named
had no such effect of passing an after acquired interest
or title at common law, nor have they in England at
the present day.'
1. Bigelow, Estoppel (6th Ed.) Doe d. Strode v. Seaton, 2
419, 450-456; Rawle, Covenants Cromp., M. & R. 728; Trevivan
for Title (5th Ed.) § 243; Doe v. Lawrence, 1 Salk. 276.
d. Christmas v. Oliver, 10 Barn. 3. Williams, Real Prop. (21st
& C. 181; Sturgeon v. Wingfield, Ed.) 507; Rawle, Covenants for
15 Mees. & W. 224. Title (5th Ed.) §§ 244, 246, 262:
2. Co. Litt. 47b; Williams, Bigelow, Estoppel, 459 et seq; 2
Real Prop. (21st Ed.) 507; Tiff- Smith, Lead. Cas. Amer. notes
any, Landlord & Tenant, § 76; 839; Right v. Bucknell, 2 Barn.
(2117)
2118 Eeal Property. [§ 545
It has been recognized in England,* as it has in
numerous jurisdictions in this country,^ that if a con-
veyance purports to transfer a certain estate, whether
this appears from recitals, covenants, or any other part
of the instrument, the grantor is estopped thereafter
to assert that, by reason of lack of title in him at the
time, such an estate did not pass by the conveyance,
to assert, in other words, that he acquired title after
and not before the conveyance. This latter view is
ordinarily referred to as involving merely an applica-
tion of the common law doctrine of estoppel by deed,
precluding a party to a deed from contradicting or
disproving any declaration or averment therein. Fre-
quently, however, it might as well be regarded as in-
volving an application of the modern doctrine of es-
toppel by misrepresentation, the grantor, that is, hav-
ing induced a change of position on the part of the
grantee, the pajnnent of purchase money, by his repre-
sentation that he has an estate of a certain character,
& Adol. 278; General Finance, 157 N. W. 734; Fitzhugh v.
Mortgage & Discount Co. v. Liber- Tyler, 9 B. Mon. (Ky.) 561;*
ator Permanent Benefit Bldg. Cornelius v. Kinnard, 157 Ky. 50,
Soc. 10 Ch. Div. 15. 162 S. W. 524 (semble) ; Wells
4. See Right v. Bucknell, 2 B. v. Blackman, 121 La. 324, 46 So.
& Ad. 278; Heath v. Crealock, 437 (semble); Pendill v. Mar-
L. R. 10 Ch. 30; Bensley v. quette County Agricultural Soc,
Burden, 2 Sim. & S. 524, 8 L. 95 Mich. 491, 55 N. W. 384; Mc-
J. Ch. 85; General Finance, etc., Innes v. Pickett, 65 Miss. 354,
Co. V. Liberator, etc., Society, 10 3 So. 660; Hagensick v Castor,
Ch. Div. 15; Poulton v. Moore 53 Neb. 495, 73 N. W. 932; Han-
(1915), 1 K. B. 400. non v. Christopher, 34 N. J. Eq.
5. Van Rennsselaer v. Kear- 465; Northrup v. Ackerman, 84
ney, 11 How. (U. S.) 297, 13 L. N. J. Eq. 117, 92 Atl. 802, 309;
Ed. 703; Diaz v. Sanchez, 226 Hallyburton v. Slagle, 132 N. C.
U. S. 234, 57 L. Ed. 201 (sem- 947, 44 S. E. 655; Keady v.
ble); Molina v. Ramirez, 15 Martin, 69 Ore. 299, Ann. Cas.
Ariz. 249, 138 Pac. 17; Clark v. 1916A, 796, 137 Pac. 856; Root
Baker, 14 Cal. 629, 76 Am. Dec. v. Crock, 7 Pa. 378; Lindsay v.
449; Doe dem Potts v. Dowdali, Freeman, 83 Tex. 259, 263, 18 S.
3 Houst. (Del.) 369; Habig v. w. 727; Breen v. Morehead, 104
Dodge, 127 Ind. 31, 25 N. E. 182; Tex. 254, 126 S. W. 650;
Bring v. Swarm, 176 Iowa, 153, Reynolds v. Cook, 83 Va. 817, 3
§ 545] Estoppel. 2119
is thereafter estopped to deny that he had snch an
estate at the time of the payment. Whichever theory
be adopted, there is no necessity of regarding the after
acquired title as actually passing to the grantee. In
this country, however, there are decisions and numer-
ous dicta to the effect, not only that the grantor in a
conveyance is estopped to deny that it passed tlie es-
tate which it purported to pass, but also that the
conveyance actually passes, by way of estoppel, any
estate or title which the grantor may thereafter acquire
in the land, if this is within its apparent scope, and
especially if it contains certain covenants of title.*^
There are, moreover, in a number of states, statutory
provisions to this etfeetJ
For most purposes, the question whether there is
merely an estoppel on the grantor to assert the after-
acquired title, or whether such title actually passes
under the conveyance, is immaterial. The distinction
between the two views is, however, important in that,
as between the grantor and grantee, the effect of the
application of the rule, without exception, that a con-
veyance containing a covenant of title operates to pass
an after-acquired estate, would be that the grantee
would be compelled to take such an estate, and would
not have the option of refusing so to do, and of recover-
ing full damages on the covenant. Eecognizing the
injustice of such a result, it has occasionally been held
that the grantee has such an option, and is not com-
pelled to accept the after-acquired estate in partial or
total satisfaction of the covenant.®
S. E. 710, 5 Am. St. Rep. 317; 1454; Rawle, Covenants for Title
Summerfield v. White, 54 W. Va. (5th Ed.) § 249.
311, 46 S. E. 154. 8. Burton v. Reeds, 20 Ind.
6, Rawle, Covenants for Title 87; Blanchard v. Ellis. 1 Gray
(5th Ed.) § 248, and the numer- (Mass.) 193; Resser v. Carney,
ous oases there cited; Biselow 52 Minn. 397, 54 N. W. 89;
Estoppel, 465; 2 Smith, Lead. Tucker v. Clark. 2 Sandf. Ch.
Cas. Amer. notes 838; 11 Am. & (N. Y.) 96; Woods v. North, (i
Eng. Enc. Law, 418. Humph. (Tenn.) 309; Mclnnis
7. 1 Stimson, Am. St. Law, § v. Lyman, 62 Wis. 191, 22 N. W.
2120 Eeal Property. [§ 545
The view that the conveyance operates to transfer
the after-acquired title is frequently based on the theory
that circuity of action is thereby avoided, the title being
given to the grantee instead of compelling him to sue on
the grantor's covenant for the damage caused by the
want of such title. But, as before indicated, so far as the
estoppel of the grantor is concerned, the presence of a
covenant for title is immaterial, it being sufficient if
the intention to convey a certain estate appears from
any part of the conveyance,'^"^^ and as shown by an
able writer, even when there are such covenants, the
estoppel frequently operates although there is no right
of action on a covenant.^^ The theory referred to, of
avoidance of circuity of action, however satisfactory
it may be in many cases, does not serve to explain the
decisions as a whole, and as stated by the same author-
ity,^2 the only satisfactory theory in this connection is
that the courts have merely applied, under common
law forms, the equitable principle that, where one
having no title or an imperfect title, purports to convey
405. Contra, King v. Gilson, 32 liable on the covenant; (3) when
111. 355; Baxter v. Bradbury, 20 the state is held to be estopped,
Me. 260; Reese v. Smith, 12 Mo. though not liable on the cov©-
344; Farmers' Bank v. Glenn, 68 nant; (4) when the grantor is
N. C. 35; Knowles v. Kennedy, estopped, though exempt from
82 Pa. 445; Boulter v. Hamil- liability on the covenant owing
ton, 15 U. C. C. P. 125. to a discharge in bankruptcy; and
9-10. Ante, § 545(a), notes 4, 5. (5) when he is estopped, thoilgh
11. Rawle, Covenants for Title the claim on the covenant is
(5th Ed.) § 251, where the fol- barred by limitations. See the
lowing cases in which the es- cases there cited, and also cita-
toppel has been held to operate tions in 11 Am. & E. Encyc.
in the absence of any liability Law (2d Ed.) 413. But that
on the covenants are enumer- there is no estoppel in case
ated; (1) When the estoppel is there is no liability upon the
sought to be enforced against covenants for title see Smiley v.
a purchaser of the subsequently- Fries 104 111. 416; Webber v.
acquired title, and not against Webber, 6 Me. 127; Goodel v.
the grantor himself; (2) when Bennett 22 Wis. 565.
a married woman is estopped 12. Rawle Covenants for Title
(in some states) to claim after- (5th Ed.) § 264.
acquired property, though not
§ 545] Estoppel. 2121
a good title to another, and afterwards acquires the
land under another title, he may be compelled to con-
vey to such other the title so acquired. That is, if an
attempted conveyance of a certain estate or interest in
land is ineffective by reason of the fact that the grantor
has not title to the land at the time of the conveyance,
equity will regard the attempted conveyance as a con-
tract to convey, and will compel specific performance
thereof upon his subsequent acquisition of title. ^^ And
the courts of this countrj^ in so far as they regard the
after acquired title as actually passing to the grantee,
have merely taken the further step of regarding as
done what equity would compel to be done.
(b) Character of conveyance. Since the es-
toppel of the grantor to assert the after acquired title
is based upon the consideration that by his conveyance
he purported to convey some certain estate or interest,
there can be no such estoppel when the conveyance
undertakes to transfer merely such an estate or interest
as the grantor has,^^ and the fact that such a convey-
13. Taylor v. Debar 1 Ch. 123 S. W. 350. See Judge Hare's
Cas. 274; Noel v. Bewley, 3 note, 2 Smith's Leading Cas. (8th
Simons, 103; Smith v. Baker, 1 Am. Ed.) at p. 850.
Y. & Col. C. C. 223; Jones v. 14. Vary v. Smith, 162 Ala.
Kearney, 1 Dru. & W. 134, 159; 457, 50 So. 187; Quivey v. Baker,
In re Bridgewater's Settlement 37 Cal. 465; Dailey v. Spring-
(1910), 2 Ch. 342; Holyrood v. field, 144 Ga. 395, 87 S. E. 479;
Marshall, 10 H. L. Cas. 191, 211 Benneson v. Aiken, 102 111. 284.
per Lord Westbury; Wright v. 40 Am. Rep. 592; Harriman v.
Shumway, 1 Biss. 23; Goodson Gray, 49 Me. 537; Fay v. Wood,
V. Beacham, 24 Ga. 150; Miss- 65 Mich. 390, 32 N. W. 614;
issippi Sawmill Co. v. Douglas, Gibson v. Chouteau, 39 Mo. 536;
107 Miss. 678, 65 So. 885; Lewis Perrin v. Perrin, 62 Tex. 477;
V. Baird, Fed. Cas. No. 8,316, 3 Jourdain v. Fox, 90 Wis. 99, 62
McLean, 80; Hannon v. Chris- N. W. 936. But in South Caro-
topher, 34 N. J. Eq. 459; Buck- lina a conveyance of "all my
ingham v. Hanna, 2 Ohio St. right title and interest" in cer-
551, 558; Chew v. Barnet, 11 tain land has been regarded as
Serg. & R. 389; Jordan v. Cham- creating the estoppel, on the
bers, 226 Pa. 573, 75 Atl. 956; theory, apparently, that such a
Taylor v. Swafford, 122 Tenn. 30.T, conveyance is a quitclaim deed,
2122
Real Property.
[§ 545
ance contains covenants for title does not change its
character in this respect. ^^
Likewise, if the conveyance purports to pass a
limited or partial interest only, the estoppel extends
only to such interest, even though the grantor subse-
quently acquires a greater interest.^^ And, if a con-
veyance is in terms subject to a mortgage, the subse-
quent acquisition by the grantor of the mortgagee's
interest does not enure to the grantee's beneiit^ pro-
vided the covenant for title expressly excepts the mort-
gage, ^'^ and, it would seem, even though there is no such
express exception, since the covenant may well be
regarded as restricted by the character of the interest
which the conveyance purports to convey.^^ And so if
a married woman joins in her husband's conveyance
and a quitclaim deed is effectual
as a conveyance. Blackwell v.
Harrelson, 99 S. C. 264, 84 S. E.
33> See post, this section, notes
20-24.
15. Hanrick v. Patrick, 119 U.
S. 156, 175, 30 L. Ed. 396; Kim-
ball V. Semple, 25 Cal. 440; Hol-
brook V. Debo, 99 111. 372;
Stephenson v. Boody, 139 Ind.
60, 38 N. E. 331; Bennett v.
Davis, 90 Me. 457, 38 Atl. 372;
Blanchard v. Brooks, 12 Pick.
(Mass.) 47; Bogy v. Shoab, 13
Mo. 365; Bell v. Twilight, 26 N.
H. 401; Coble v. Barringer, 171
N. C. 448, L. R. A. 1916E, 901,
88 S. E. 518; White v. Brocaw,
14 Ohio St. 339; Rawle, Cove-
nants for Title, § 250.
But the presence of a cove-
nant for title may affect the
construction of the instrument
as showing an intention not lo
convey merely such estate or
Interest as the grantor has. Mills
V. Catlin, 22 Vt. 98; Jones v.
King, 25 111. 383; Baker v. Aus-
tin, 174 N. C. 433, 93 S. E. 949;
Bayley v. McCoy, 8 Ore. 259;
Blackwell v. Harrelson, 99 S. C.
264, 84 S. E. 233. Compare,
as to the North Carolina law.
Coble V. Barringer, 171 N. C.
448, L. R. A. 1916E, 901, 88 S.
E. 518; and see Rawle, Cove-
nants for Title, §§ 298, 299.
16. Wheeler v. Aycock, 109
Ala. 146, 19 So. 497; Gill v.
Grand Tower Min. Co.. 92 111.
249; Stoepler v. Silberberg, 220
Mo. 258, 119 S. W. 418; Mclnnis
V. Pickett, 65 Miss. 354, 3 So.
660; Kent v. Watson, 22 W. Va.
561; Simanek v. Nemetz, 120
Wis. 42, 97 N. W. 508; Gillen
v. Powe, 219 Fed. 553, 135 C.
C. A. 321.
17. Huzzey v. Heffernan, 143
Mass. 232, 9 N. E. 570.
18. Jaclfson v. Hoffman, 9
Cow. (N. Y.) 271; Bricker v.
Bricker, 11 Ohio St. 240. Con-
tra, Ayer v. Philadelphia & B.
Face Brick Co., 159 Mass. 84,
34 N. E. 177; discussed and
§ 545]
Estoppel.
212rl
merely to release her dower, a title subsequently ac-
quired by her will not enure to the benefit of the
grantee in the conveyance. ^^
Not infrequently it is said that the grantor in a
quitclaim deed is not estopped to assert an after-
acquired title, -^' but unfortunately the courts do not al-
ways clearly indicate what they mean by a quitclaim
deed. Occasionally they use the expression in this con-
nection to describe a conveyance which purtDorts in
teniis to transfer merelv such interest as the i^rantor
criticized in 7 Harv. Law Rev.
at p. 429. And see Rawle, Cove-
nants for Title, § 298.
That an exception of a mort-
gage in a covenant against in-
cumbrances does not extend to
the covenant of warranty in
the same instrument, so as to
exclude an estoppel, see Sand-
wich Mfg. Co. V. Zellmer, 48
Minn. 408; Rooney v. Koenig, 80,
Minn. 483, 83 N. W. 399. See, as
to this last case, 14 Harv. Law
Rev. 233.
19. Sanford v. Kane, 133 111.
199, 8 L. R. A. 724, 23 Am. St.
Rep. 602, 24 N. E. 414; Miller
V. Miller, 140 Ind. 174, 39 N.
E. 547; O'Neill v. Vanderburg,
25 Iowa, 104; Raymond v. Holden,
2 Cush. (Mass.) 270; Griffin v.
Sheffield, 38 Miss. 359.
20. Quivey v. Baker, 37 Cal.
465; Habig v. Dodge, 127 Ind.
31. 25 N. E. 182; Haskett v.
Maxey, 134 Ind. 182, 19 L. R. A.
379, 33 N. E. 358; French v.
Bartel & Miller, 164 Iowa, 677,
146 N. W. 754; Fisher v. Hal-
lock, 50 Mich. 465, 15 N. W. 552;
People V. Miller, 79 Mich. 93,
44 N. W. 172; Ernst v. Ernst,
178 Mich. 100. 144 N. W. 513. 51
L. R. A. (N. S.) 317; Jackson
V. Winslow, 9 Cow. (N. Y.) 18;
Harden v. Collins, 8 Nev. 4^;
Perrin v. Perrin, 62 Tex. 477.
In Illinois it is so provided by
statute. Wells v. Glos, 277 111.
516, 115 N. E. 658.
In Hagensick v. Castor, 53
Neb. 495, 73 N. W. 932, it was
held that although an instru-
ment was in the ordinary form
of a quitclaim deed, yet since
the grantors described them-
selves as the heirs of A, wrong-
ly believing A to be dead, they
in effect purported to convey
an estate of inheritance vested
in them as heirs at law of A,
and could not, on A's actual
death, assert the title which then
passed to them as A's heirs.
It has been said that the excep-
tion to the general rule in the
case of a quitclaim deed does
not apply when the title subse-
(juently acquired by the grantor
is "merely an evidence and forti-
fication of the title" which ho
previously had. Ford v. Axel-
son, 74 Neb. 92, 103 N. W. 1039;
Johnson v. Johnson, 173 Ky. 701,
191 S. W. 672. This might mean
merely that the effect of tho
quitclaim as passing what tho
grantor has at the time of its
2124
Real Propbety.
[§ 545
may have,^^ a form of conveyance which, as before
stated,^^ gives no room for an estoppel. Occasionally
the courts apparently regard an instrument as a quit-
claim deed for this purpose if the words ''release" or
''quitclaim," or both, appear as operative words there-
in,-^ presumably on the theory that the use of such
words precludes a construction of the instrument as
purporting to pass any certain estate or interest. Oc-
casionally the language used suggests that the court
regards as a quitclaim deed any conveyance in which
there are no covenants for title.-^
The doctrine of estoppel to assert an after acquired
title has been applied in the case of a mortgage as well
execution is not affected by the
fact that he subsequently ob-
tains a deed purporting to con-
vey what he already has, but
the statement has also been
applied to a case in which the
grantor had an equitable title
merely at the time of the execu-
tion of the quitclaim deed, and
thereafter obtained the legal title.
Johnson v. Johnson, 173 Ky. 701,
191 S. W. 672.
21. As in Anderson v. Yoak-
um, 94 Cal. 227, 28 Am. St.
Rep. 121, 29 Pac. 500; Frink
V. Darst, 14 111. 308, 58 Am.
Dec. 575; Benneson v. Aiken,
102 111. 289; Irish v. Steeves,
154 Iowa, 286, 134 N. W. 634, 157
N. W. 734; Pring v. Swarm, 176
Iowa, 153; Nicholson v. Caress, 45
Ind. 479; Carter v. Hosier, 84
Kan. 361, 114 Pac. 226; Manson v.
Peaks, 103 Me. 430, 69 Atl. 690;
Butcher v. Rogers, 60 Mo. 138;
Brawford v. Wolfe, 103 Mo. 391,
15 S. W. 426; Taft v. Stevens, 3
Gray (Mass.) 504; Bell v. Twi-
light, 26 N. H. 401; Dorris v.
Smith. 7 Ore. 267; Lindsay v.
Freeman, 83 Tex. 259, 18 S. W.
727; Balch v. Arnold, 9 Wyo.
17, 59 Pac. 434.
22. Ante, this section, notes
14, 15.
23. As in Avery v. Akins, 74
Ind. 283; Bruce v. Luke, 9 Kan.
201; Wholey v. Cavanaugh, 88
Cal. 132, 25 Pac. 1112; Frost v.
Missionary Society, 56 Mich. 62,
22 N. W. ,189. Contra, Ford v.
Axelson, 74 Neb. 92, 103 N. W.
1039. This is presumably the
character of instrument intended
by the Mississippi statute, which
provides that a conveyance of
quitclaim and release shall estop
the grantor from asserting a
subsequently acquired title. It
could hardly mean a conveyance
of such interest as the grantor
may have. See Bramlett v. Rob-
erts, 68 Miss. 325, 10 So. 56.
24. Bohon v. Bohon. 78 Ky.
408; Dart v. Dart, 7 Conn. 256;
Tillotson V. Kennedy, 5 Ala. 413,
39 Am. Dec. 330; Cramer v.
Benton, 64 Barb. (N. Y.) 522;
Jackson v. Hubble, 1 Cow. (N.
Y.) 613.
§ 545]
Estoppel.
2125
as in that of an absolute conveyance, more particularly
when the mortgage instrument contains a covenant
of warranty or other covenant.^ ^ And it has been so
a.pplied not only in jurisdictions in which the legal title
passes to the mortgagee,-'^ but in other jurisdictions
likewise.-" There appears to be no difference, as re-
gards the doctrine of estoppel, between the principles
applicable to a mortgage and to an absolute convey-
ance, and the statements here made in reference to the
latter will ordinarily apply as well to the former.^''^
If a conveyance is for any reason absolutely in-
valid, there is no estoppel upon the grantor as to an
after-acquired title.-^ But that the conveyance is in-
25. Jones v. Wilson, 57 Ala.
122; Curren v. Driver, 33 Ind.
480; West Michigan Park Ass'n
V. Pere Marquette R. Co., 172
Mich. 179, 137 N. W. 799; Hagen-
sick V. Castor, 53 Neb. 495, 73
N. W. 932; Smith v. De Russy,
29 N. J. Eq. 407; Jackson v.
Littell, 56 N. Y. 108; Donovan
V. Twist, 85 N. Y. App. Div. 130,
83 N. Y. Supp. 76; Jarvis v.
Aikens, 25 Vt. 635; DosweU v.
Buchanan, 3 Leigh (Va.) 365,
23 Am. Dec. 280.
26. Howze v. Dew, 90 Ala.
178, 24 Am. St. Rep. 783, 7 So.
239; Hoyt v. Dimon, 5 Day
(Conn.) 479; Gochenour v. Mow-
ry. 33 III. 331; Dagger v. Mu-
tual Union Loan & Building
Ass'n, 146 111. 283, 33 N. E. 946;
Parsons v. Little, 66 N. H. 339,
20 Atl. 958; White v. Patten, 24
Pick. (Mass.) 324; Cockrill v.
Bane, 94 Mo. 444, 7 S. W. 480;
Northrup v. Ackerman, 84 N. J.
Eq. 117, 92 Atl. 909; Rauch v.
Dech, 116 Pa. St. 157, 2 Am. ftt.
Rep. 598, 9 Atl. 180.
27. Clark v. Boyreau, 14 Cal.
636; Yerkes v. Hadley, 5 Dak.
2 R. P.— 59
324, 2 L. R. A. 363, 40 N. W.
340; Hill v. O'Bryan, 104 Ga.
137, 30 S. E. 996; Rice v. Kelso,
57 Iowa, 115, 7 N. W. 3, 10 N.
W. 335; Whitley v. Johnson, 135
Iowa, 620, 113 N. W. 550; Thalls
V. Smith, 139 Ind. 496, 39 N. E.
154; Watkins v. Houck, 44 Kan.
502, 24 Pac. 361; Gray v. Franks,
86 Mich. 382, 49 N. W. 130;
Caple V. Switzer, 122 Mich. 636,
81 N. W. 560; Osborn v. Scottish
American Co., 22 Wash. 83, 60
Pac. 49.
27a. If one who has no title to
land undertakes to mortgage the
land to one who has a perfect
title, and subsequently acquiries
the land by descent from the
latter, he is not estopped, it has
been held, to assert such title
as against the latter's repre-
sentative. "Neither the mort-
gagee nor her representative can
deny that her own title was
good, because she had taken a
conveyance from one having no
title." Harding v. Springer, 14
Me. 407, 31 Am. Dec. 61.
28. Kercheval v. Triplett, 1
A. K. Marsh (Ky.) 493; Patter-
2126
Real Propeety.
[§ 545
valid as to one grantor obviously does not affect the
estoppel upon another grantor. ^^
(c) Necessity and character of covenants.
Applying the view, above referred to, that a conveyance
is given the effect of transferring an after- acquired
title as a means of avoiding the necessity of suing on
the covenant for title, it has frequently been asserted
that the presence of such a covenant is necessary in or-
der that an after-acquired title may pass."" And the cases
occasionally distinguish between the different classes of
covenants as regards their efficacy in this respect. Thus
a covenant of warranty has been referred to in many
cases as effective for this purpose,^ ^ frequently as the
result of a mistaken application of the doctrine of war-
ranty at common law,^^ and the same effect has been
given to a covenant for quiet enjoyment,^^ while it
has, in sOme states, been denied to a covenant for seisin
son V. Pease, 5 Ohio, 191; Kemery
V Zeigler, 176 Ind. 660, 96 N.
E. 850.
29. Blakeslee v. Mobile Life
Ins. Co., 57 Ala. 265; Chapman
V Abrahams, 61 Ala. 108; Well-
born V. Finley, 7 Jones L. (N.
C.) 228.
30. See cases cited 11 A. & E.
Encyc. Law (2nd Ed.) 409.
31. Schuman v. George, 110
Ark. 486, 161 S. W. 1038; Doe
d. Potts V. Roe, 3 Houst, (Del.)
369, 11 Am. Rep. 757; Oliver v.
Holt, 141 Ga. 126, 80 S. E. 630;
Walton V. Follansbee, 131 III.
147, 23 N. E. 332; Childs v. Mc-
Chesney, 20 Iowa, 431, 89 Am.
Dec. 545; Creekmore v. Bryant,
158 Ky. 166, 164 S. W. 337;
Bennett v. Davis, 90 Me. 457, 38
Atl. 372; Knight v. Thayer, 125
Mass. 25; Morris v. Jansen, 99
Mich. 436, 58 N. W. 365; De-
merse v. Mitchell, 187 Mich. 683,
164 N. W. 97; Barron v. H. D.
Williams Cooperage Co., 185 Mo.
App. 625, 171 S. W. 683; Moore
V. Rake, 26 N. J. L. 574; Ford
V. McBrayer, 171 N. C. 420, 88
S E. 736; Broadwell v. Phillips.
30 Ohio St. 255; Blackwell v.
Harrelson, 99 S. C. 264, 84 S. E.
233; Johnson v. Branch, 9 S. D.
116, 62 Am. St. Rep. 857, 68 N.
W. 173; Ferguson v. Prince, 136
Tenn. 543, 190 S. W. 548; Raines
V. Walker, 77 Va. 95.
32. 2 Smith's Leading Cases,
Judge Hare's note (8th Am. Ed.)
841 et seq; Rawle, Covenants for
Title, §§ 252, 254; Bigelow, Es-
toppel (6th Ed.) pp. 453, 463.
33. Smith v. Williams, 44
Mich. 240, 6 N. W. 662; Long
Island R. Co. v. Conkiin, 29 N.
Y. 572; Tully v. Taylor, 84 N.
J. Eq. 459, L. R. A. 1918B, 731,
94 Atl. 572. See Taggart v.
Risley, 4 Ore. 235.
§ 545] Estoppel. 2127
or for good right to convey.'^^ On the other hand there
are numerous decisions and judicial dicta that if the
conveyance purports to transfer some certain estate,
the grantor is estopped, irrespective of the presence of
covenants therein, to assert that such an estate did not
•pass thereby.^ ^
"When the conversance does not purport to convey
such interest only as the grantor has, or a limited in-
terest only, the fact that a covenant therein is special,
that is, against the acts of the grantor and those claim-
ing under him only, does not appear to aifect its opera-
tion by way of estoppel.^^
(d) Cases to which doctrine inapplicable.
The doctrine that a grantor is estopped to assert an
after-acquired title applies only when such assertion
would involve a denial that the conveyance passed the
interest or estate which it purported to pass. Conse-
quently the grantor may freely assert a title subse-
quently acquired by him from the grantee either by
voluntary conveyance,^ '^ judicial or execution sale,^^
34. Allen v. Sayward, 5 Me. Short, — Tex. Civ. App. — , 151
227, 17 Am. Dec. 221; Doane v. S. W. 633.
Willcutt, 5 Gray (Mass.) 333, 66 35. Ante, this section, note 5,
Am. Dec. 369; Chauvin v. Wag- 36. Kimball v. Blaisdell, 5 N.
ner, 18 Mo. 531. Contra, Wight- H. 533; Gibbs v. Thayer, 6 Cush.
man v. Reynolds, 24 Miss. 675. (Mass.) 30; Coal Creek IMin. &
And see Irvine v. Irvine, 9 Wall. Mfg. Co. v. Ross, 12 Lea (Tenn.)
(U. S.) 617, 19 L. Ed. 800; Van- 1. Compare, Bennett v. Davis,
derheyden v. Crandall, 2 Den. 90 Me. 457, 38 Atl. 372.
(N. Y.) 9. 37. Condit v. Bigalow, 64 N.
It has been held that the J. Eq. 504, 54 Atl. 160.
covenant against incumbrances 38. Erwin v. Morris, 26 Kan.
which, by a state statute, is im- 664; Rauch v. Dech, 116 Pa. 157,
plied from the use of the word 2 Am. St. Rep. 598, 9 Atl. 180;
"grant" or "convey" was suflfi- Goode v. Bryant, 118 Va. 314, 87
clent for this purpose. Morris v.S. E. 588.
2128 Eeal Property. [§ 545
adverse possession,^® tax sale,^" or otherwise.*^ In such
a case the grantor asserts, not that the conveyance
failed to pass the interest which it purported to pass,
but merely that, after such interest had, by the convey-
ance, become vested in the grantee, it was divei-;ted out
of him and vested in the grantor. Nor is the grantor
estopped to assert that, under the circumstances of
the case, while the legal title was by the conveyance
vested in the grantee, the beneficial interest was vested
in another.*^
If one who has conveyed land in his own right
subsequently acquires a title thereto, not in his own
right but as trustee for another, the doctrine her^^ under
discussion does not apply. One cannot thus alfect the
interest of another by purporting to convey more than
he has.^^ But one may, it seems, by a conveyance in
an official or representative capacity, by which he pur-
ports to convey a certain interest or estate, be estopped
to assert a title subsequently acquired by him in his
39. Abbett v. Page. 92 Ala. 571, Hannah v. Collins, 94 Ind. 201;
9 So. 332; Doolittle v. Robert- Porter v. Lafferty, 33 Iowa, 254;
son, 109 Ala. 412, 19 So. 851; Gardner v. Gerrish, 23 Me. 46
Garibaldi v. Shattuck, 70 Cal. Frank v. Caruthers, 108 Mo. 569,
511, 11 Pac. 778; Berthelemy v. 18 S. W. 927.
Johnson, 3 B. Mon. (Ky.) 90, 38 41. Thielen v. Richardson, 35
Am. Dec. 179; Hines v. Robin- Minn. 509, 29 N. W. 677.
son, 57 Me. 324, 99 Am. Dec. 42. Harrold v. Morgan, 66
772; Stearns v. Hendersass, 9 Ga. 398; Condit v. Bigalow, 64
Gush. (Mass.) 497, 57 Am. Dec. N. J. Eq. 504, 54 Atl. 160.
65; Horbach v. Boyd, 64 Neb. 43. Dewhurst v. Wright, 29
129, 89 N. W. 644; Tilton v. Fla. 223, 10 So. 682; Phillippi
Emery, 17 N. H. 536; Sherman v. v. Leet, 19 Colo. 246, 35 Pac.
Kane, 86 N. Y. 57; Johnson \. 540; Kelley v. Jenness, 50 Me.
Farlow, 13 Ired, L. (35 N. C.) 455, 79 Am. Dec. 623; Harlan
84; Chatham v. Lonsford, 149 N. v. Jordan, 104 Me. 49, 70 Atl.
C. 363, 63 S. E. 81; Harn v. 1066; Runlet v. Otis, 2 N. H.
Smith, 79 Tex. 310, 23 Am. St. 167: Wark v. Willard, 13 N. H.
Rep. 340, 15 S. W. 240. 389; Jackson v. Mills, 13 Johns.
40. Erwin v. Morris, 26 Kan. (N. Y.) 463; Buckingham v.
664; Foster v. Johnson, 89 Tex. Hanua. 2 Ohio St. 551; Burchard
640, 36 S. W. 67. But only if v. Hubbard, 11 Ohio, 316; Fre-
the sale was for taxes which telliere v. Hindes, 57 Tex. 392;
came due after the conveyance. Newton v. Easterwood, Tex. Civ.
§ 545] Estoppel. 2129
own right/^ particularly if the instrument contains a
personal covenant by him for title,^^ it being recognized
that he may by such a conveyance be estopped to assert
a title which he actually has at the time thereof.'*^
In the case of a purchase money mortgage, the
mortgage is properly to be construed as purporting to
convey or charge such interest only as the mortgagor
acquired by the conveyance from the mortgagee, and
consequently, if he acquired no title or an imperfect
title thereby, the mortgagee cannot claim the benefit
of a title subsequently acquired by the mortgagor, the
purchaser.^'^ And so, it would seem, when cotenants
claiming under a single title make voluntary partition,
the mutual conveyances executed by them to carry
the partition into effect may properly be regarded as
purporting to convey only such title as they all have,
and if one subsequently acquires a paramount title, he
should not be estopped to assert it as against the
others,*® a result which might also be attained on the
theory*^ that the purpose and effect of such convey-
ances is not to transfer interests in land but merely
to designate the share of each of the parties. ^^
App. — , 154 S. W. 646; Gregory liams, 85 Tex. 499, 22 S. W.
V. Peoples, 80 Va. 355. 399; Carbee v. Hopkins, 41 Vt.
44. Molina v. Ramirez, 15 250.
Ariz. 249, 138 Pac. 17; Mountain 47. Randall v. Lower, 98 Ind.
Home Lumber Co. v. Swartwout, 255: Brown v. Phillips, 40 Mich.
30 Idaho, 559, 166 Pac. 271. 264. And see Butterfield v. Lane.
45. Prouty v. Mather, 49 Vt. 114 Me. 333, 96 Atl. 233. Contra,
425; See Morris v. Wheat, 8 Hitchcock v. Fortier, 65 111. 239.
App. D. C. 379; Hitchcock v. The latter case is disapproved
Southern Iron & Timber Co., in Rawle, Covenants for Title,
— Tenn.— , 38 S. W. 588; Ver- § 267; Bigelow, Estoppel (6th
meule v. Vermeule, 113 Me. 74, Ed.) 448.
93 Atl. 37. 48. See Rector v. Waugh. 17
46. Rannels v. Howe, 145 Fed. Mo. 26; Pendill v. Marquette
296, 74 C. C. A. 376; Poor v. County Agric. Soc. 95 Mich. 491,
Robinson, 10 Mass. 131; WeUs v. 55 N. W. 384; Carson v. Carson.
Steckelberg. 52 Neb. 597, 66 Am. 122 N. C. 645, 30 S. E. 4; Doane
St. Rep. 529, 72 N. W. 865; v. Willicutt. 5 Gray (Mass.) 328.
Kellerman v. Miller, 5 Pa. Super. 49. Ante, § 203.
Ct. 443; Corzine's Heirs v. Wil- 50. See Harrison v. Ray. 108
2130 Real Propbety. [§ 545
(e) Persons bound by the estoppel. If, after
executing the conveyance, the grantor acquires an
estate in the land and then dies, his heir is precluded, to
the same extent as was the grantor himself, from
asserting that such after-acquired title did not enure to
the benefit of the grantee.^^ But while the heir is
estopped to assert a title subsequently acquired by the
grantor, the heir is not estopped to assert a title subse-
quently acquired by him from a source other than his
ancestor, the grantor.^^
The question whether one to whom the grantor,
after his subsequent acquisition of title, undertakes to
make a conveyance, is estopped, as was the grantor,
to assert such subsequently acquired title, is one of
considerable difficulty. It has been frequently said that
an estoppel by deed binds not only parties but also
privies,^^ and a like statement is ordinarily made in
regard to estoppel by misrepresentation.^^ Strictl}^
applying such a rule, the estoppel would operate
against a subsequent grantee although he is a pur-
chaser for value without notice of the prior conveyance
by his grantor. And there are a considerable number
of cases which appear to adopt such a view, that the
subsequent grantee is estopped to assert the after-
N. Car. 215, 11 L. R. A. 722, 23 K. A. 162, 25 N. E. 1013; Galladay
Am. St. Rep. 57, 12 S. E. 993; v. Knock, 235 111. 412, 85 N. E.
Chace v. Gregg, 88 Tex. 552, 32 649; Wilson v. Godfrey, 145
S. W. 520. Iowa, 696, 124 N. W. 875; Russ
51. French v. Spencer, 21 How. v. Alpaugh, 118 Mass. 369, 19 Am.
(U. S.) 228, 16 L. Ed. 97; Perry Rep. 464; Gorton v. Roach, 46
V. Kline, 12 Gush. (Mass.) 118; Mich. 294, 9 N. W. 422; Wm. D.
Russ V. Alpaugh, 118 Mass. 369, Cleveland & Sons v. Smith, — Tex.
19 Am. Rep. 464; Wark v. Wil- Civ. App.— , 113 S. W. 547. See
lard, 13 N. H. 389; Tefft v. Mun- editorial note, 10 Columbia Law
son, 57 N. Y. 97; Du Rose v. Kell, Rev. 483.
90 S. C. 196, 71 S. E. 371. See 53. See cases cited 16 Cyclo-
Chace v. Gregg, 88 Tex. 552, 32 pedia Law & Proc. 715; Bigelow,
S. W. 520. Estoppel (6th Ed.) 372.
52. Zimmerman Mfg. Co. v. 54. See 16 Cyclopedia Law &
Wilson, 147 Ala. 275, 40 So. 515; Proc. 778; Bigelow, Estoppel, 629.
Ebey v. Adams, 135 111. 80, 10 L.
§ 545]
Estoppel.
2151
acquired title of his grantor, as against a prior grantee
of the latter, without reference to whether sucli subse-
quent grantee has or has not notice of the iDrior con-
veyance.^^ In some cases, however, a contrarj^ view
is asserted, expressly or by implication, that the subse-
quent grantee is not bound by the estoppel unless he
had notice of the prior conveyance by his grantor.^^*^
In several of these latter cases the question chiefly
discussed is whether the subsequent grantee is f^harged
with notice by the record of the prior conveyance, this
occurring before his grantor acquired title. This ques-
tion has ordinarily been answered in the negative,
that is, the purchaser was regarded as under no obliga-
tion to search the records for conveyances b}^ his
55. Letson v. Roach, 5 Kau.
App. 57, 47 Pac. 321; Morrison
V. CaldweU, 5 T. B. Mon. (Ky.)
426, 17 Am. Dec. 84; Powers v.
Patten, 71 Me. 583; White v.
Patten, 24 Pick (Mass.) 324;
Knight V. Thayer, 125 Mass. 25;
Ayer v. Philadelphia & B. Face
Brick Co., 159 Mass. 84, 34 N.
E. 177; Philly v. Sanders, 11
Ohio St. 490, 78 Am. Dec. 316;
McCusker v. McEvey, 9 R. I.
528, 10 R; I. 606, 11 Am. Rep.
295; Jarvis v. Aikens, 25 Vt.
635. See Owen v. Brookfort, 208
111. 35, 69 N. E. 952; Colonial &
rj. S. Mtge. Co. V. Li°. 95 Ark.
253, 129 S. W. 84; Organ v.
Bunnell— Mo.— , 184 S. W. 102.
A like doctrine has been In
one case applied, as against a
purchaser of land to which an
casement appertained, in favor of
one to whom the servient tene-
ment had previously been con
veyed, with a covenant of war-
ranty, it being held that the
grantor of the servient tene-
ment was estopped to assscrt
the easement against his grantee,
upon acquiring the dominant tene-
ment, and that one to whom he
conveyed the latter was also
estopped. Hodges v. Goodspeed,
20 R. I. 537, 40 Atl. 373. See 12
Harv. Law Rev. at p. 219.
56. Rozell V. Chicago Mill &
Lumber Co., 76 Ark. 525, 89 S.
W. 469; Wheeler v. Young, 76
Conn. 44, 55 Atl. 670; Way v.
Arnold, 18 Ga. 181; Donahue v.
Vosper, 189 Mich. 78, 155 N. W.
407; Ford v. Unity Church Soc,
120 Mo. 498, 23 L. R. A. 561.
41 Am. St. Rep. 711, 25 S. W.
394; Greai Falls Co. v. Worster,
15 N. H. 452 (dictum): Bing-
ham V. Kirkland, 34 N J. Eq.
221; Farmer's Loan & Trust Co.
V Maltby, 8 Paige (N. Y.) 361;
Doyle V. Petroleum Co., 44 Barb.
(N. Y.) 240 (se7nble); Calder
V Chapman, 52 Pa. St. 359. 91
Am. Dec. 163; Richardson v.
Atlantic Coast Lumber Co., 93
S. C. 254, 75 S. E. 371; Bernardy
V. Colonial, etc., Mortgage Co.,
17 S. D. 637, 98 N. W. 166; Green
2132 Real Property. [§ 545
grantor executed and recorded before the grantor had
any title to convey, it being sufficient that he searches
the records under his grantor in order to discover any
conveyance made by the latter after acquiring title. ^'^'^
A contrary view would impose on every purchaser the
very serious burden of searching the records for con-
veyances made not only by his vendor, but also by his
vendor's predecessors in title, for an indefinite time
back of the date of his or their acquisition of title."
The decisions above referred to, that a purchaser
without notice of the previous conveyance by his
grantor is not estopped to assert the title acquired by
his arantor after the previous conveyance, appear ordi-
narily to be based upon the theory that a contrary view
would to that extent defeat the purpose and spirit of the
recording laws, in giving priority to a conveyance which,
though first executed, was not recorded under such
circumstances as to satisfy the statutory requirement
of record. Another view which has been suggested
in this regard is that, since the claim of a grantee as
V. Morehead, 104 Tex. 254, 136 Mich. 274; Schoch v. Birdsall, 48
S. W. 1047, Ann. Cas. 1914A, Minn. 441, 51 N. W. 382; Boyd
1285; See Doswell v. Buchanan, v. Mundorf, 30 N. J. Eq. 545.
3 Leigh (Va.) 365; Higgins v. 57. See 2 Pomeroy Eq. Jur. §
Dennis, 104 Iowa, 605, 74 N. W. 9. 658, p. 1134 note; Rawle, Cove-
But a purchaser Is charged nants for Title. §§ 259-261; note
with notice of a conveyance made in 17 Harv. Law Rev. at 482.
by his vendor before the latter'* But that the record of the
acquisition of title, if such con- earlier conveyance does in such
veyance was recorded after such case affect the subsequent pur-
acquisition. Semon v. Terhune, chaser with notice was decided
40 N. J. Eq. 364, 2 Atl. 18. in Tefft v. Munson, 57 N. Y. 97;
56a. The impropriety of re- (distinguished in Oliphant v.
quiring a search previous to the Burns, 146 N. Y. 218, 40 N. E.
mortgagor's acquisition of title 980); Bernardy v. Colonial & U.
has in several cases been given S. Mortg. Co., 17 S. D. 637, 108
as a reason for according prior- Am. St. Rep. 791, 98 N. W. 166;
Ity to a purchase money mort- Hale v. Hollon, 14 Tex. Civ. App.
gage as against a mortgage given 96, 35 S. W. 843, 36 S. W. 288;
previously by the same party. Balch v. Arnold, 9 Wyo. 17, 59
Ely v. Pingrey, 56 Kan. 17, 42 Pac. 434.
Pac. 330; Heffron v. Flanigan, 37
§ 545] Estoppel. 2133
to the subsequently acquired title of his grantor is,
properly regarded, equitable in its nature,^^ it may, like
other equitable claims, not be asserted as against sub-
sequent purchasers for value without notice.
As against a subsequent purchaser from the. same
grantor who took with notice of the conveyance made
by the latter before he acquired title,^^" or wijO was
not a purchaser for value,^^^ the prior granteo can no
doubt assert the estoppel to the same extent as he could
have asserted it against the grantee himself.
As regards the question whether the claim of the
person to whom the conveyance is made before the
grantor's acquisition of title takes priority over the
claim under a judgment against the grantor, the cases
are few in number and not entirely in harmony. Tak-
ing first the case of a judgment rendered before
the making of the conveyance, it has been held in one
state that, upon the acquisition of title by the grantor;
the land becomes subject to the lien of the judgment,
in priority to the grantee's claim by way of es'oppel,^"
and there is also a decision to the contrary.'^ ^ It does
not seem that, by reason of the grantor's lack of title at
the time of his conveyance, the grantee should profit
at the expense of the judgment creditor, and the
former decision appears to be preferable. In the case
of a judgment rendered against the grantor after the
making of the conveyance and before his acquis'tion of
the title, it has been held that the grantee takes free of
the lien of the judgment, on the theory, apparently,
that the grantor, in view of his conveyance, acquires at
58. Ante, § 545(a), note 13. Circle, 60 Mo. 258; Wark v.
59. See Editorial note, 22 Willard, 13 N. H. 389; Mann v.
Harv. Law Rev. 136; also the dis- Young, 1 Wash. Terr. 454.
cussion by Mr. Ewart as to the 59b. Lindsay v. Freeman, 83
somewhat analogous question Tex. 259, 18 S. W. 727; Mann v.
of the incidence of the burden of Young, 1 Wash. Terr. 454.
an estoppel by misrepresentation. 60. Bliss v. Brown, 78 Kan.
Ewart, Estoppel, 199 et seq. 467. 96 Pac. 945.
59a. Edwards v. Hillier, 70 61. Watkins v. Wassell, 15
.Miss. 803, 13 So. 692; Barker v. Ark. 73.
2134 Real Propeety. [§ 546
most merely a legal title, the beneficial interest vesting
immediately in the grantee.*'^ In the case of a judg-
ment rendered against the grantor not only after his
conveyance, but also after his acquisition of the title,,
the judgment creditor can, it would seem, for a like
reason, have no lien upon the property, excej>t as he
may, in some states, be protected as a bona fide pur-
chaser for value.^^
§ 546. Estoppel by representation. In connection
with the law of land there is frequent occasion for the
application of the familiar principle that one who, by
his words or actions, represents a certain state of facts
to be true, and thereby induces another to act to his detri-
ment, is precluded from thereafter denying the exist-
ence of such a state of facts. So it has frequently
been decided that if one, having title to land, as he
knows or has reason to know, disclaims any rights
therein,^^ or fails to assert his rights,^^ and thereby
62. Lamprey v. Pike, 28 Fed. Schneider, 281 111. 557, 118 N. E.
30; Brown v. Barker, 35 Okla. 41; Webb v. Hardaway — (Ky.) — ,
498, 130 Pac. 155. See also Wat- 121 S. W. 669; Blodgett ▼. Mc-
kins V. Wassell, 15 Ark. 73. Com- Murtry, 34 Neb. 782, 52 N. W.
pare Leslie v. Harrison Nat. 706; Mayer v. Ramsey, 46 Tex.
Bank, 97 Kan. 22, 154 Pac. 209. 371.
63. In Pennsylvania a judg- 65. Bryan v. Ramirez, 8 Cal.
ment creditor is so protected as 461, 68 Am. Dec. 340; Baillarge
against a mortgage made by the v. Clark, 145 Cal. 589, 79 Pac.
debtor before acquiring title. 268; Coram v. Palmer. 63 Fla.
Calder v. Chapman, 52 Pa. 559, 116, 58 So. 721; Loughran v.
91 Am. Dec. 163; Gallagher v. Gorman, 256 111. 46, 99 N. E. 886;
Stern, 250 Pa. 292, 95 At. 518. Simpson v. Yocum, 172 Ky. 449,
The latter case is criticized in 189 S. W. 439; Hatch v. Kimball,
an editorial note in 29 Harv. Law 16 Me. 146; Brown v. Union
Rev. 457 on the ground that the Depot St. Ry. & Transfer Co.,
judgment creditor was chargeable 65 Minn. 508, 68 N. W. 107;
with notice. Pabst v. Berch, 126 Minn. 58, 147
64. Dickerson v. Colgrove, 100 N. W. 714; Guffey v. O'Reilly,
U. S. 578, 25 L. Ed. 618; Burle- 88 Mo. 418, 57 Am. Rep. 424;
son V. Mays, 189 Ala. 107, 66 So. Thompson v. Sanborn, 11 N. H.
36; Coogler v. Rogers, 25 Fla. 201, 35 Am. Dec. 490; Wendell v.
853, 7 So. 391; Whalen v. Van Rensselaer, 1 Johns. Ch. (N.
§ 546]
Estoppel.
2135
causes one, excusably ignorant of the true state of the
title, to purchase the land from a third person, he can-
not thereafter assert any claim to the land. Like^vdse,
the true owner of land who stands by and sees another,
under the belief that he has the unincumbered title to the
land, make expenditures for improvements thereon,
may be under such a duty to inform the person in pos-
session of the true state of the title as to be there-
after estopped from asserting any rights in the land.""
The mere failure to assert one's title, without any
active misrepresentation in regard thereto, will not
ordinarily have the effect of an estoppel, if his title
appears of record, since one purchasing or improving
the land is in such case charged with notice of the
true state of the title,*''^ And the result appears to be
Y.) 344; Heckman v. Davis, 56
Okla. 483, 155 Pac. 1170; Gaddes
V. Pawtucket Inst, for Savings,
33 R. I. 177, Ann. Cas. 1912B.
407, 80 Atl. 415; Marines v.
Goblet, 31 S. C. 153, 17 Am. St.
Rep. 22; Grigsby v. Verch, 34 S.
D. 39, 146 N. W. 1075.
66. Kirk v. Hamilton, 102 U.
S. 68, 26 L. Ed. 79; Hendrix v.
Southern Ry. Co., 130 Ala. 205, 80
Am. St. Rep. 27, 30 So. 596;
Gibson v. Herriott, 55 Ark. 85,
29 Am. St. Rep.. 17; Beardsley
V. Clem, 137 Cal. 328, 70 Pac. 175;
Holmes v. Brooks, 84 Conn. 512.
80 Atl. 773; Coram v. Palmer, 63
Fla. 116, 58 So. 721; Georgia Pac.
Ry. Co. V. Strickland, 80 Ga.
776, 12 Am. St. Rep. 232, b S. E.
27; Crumley v. Laurens Banking
Co., 141 Ga. 603, 81 3. fi. 871;
Hoi comb v. Independent School
Dist, 67 Minn. 321, ^^9 N. W.
1067; Thomas v. Pull is, 56 Mo.
211; Deilett v. Kemh!^, r^ N. J
Eq. 58; Marvin v. Tusch. 86 Ohio
St. 49, 98 N. E. 860; ^rusha v
Board of Education of Gklahcraa
City 41 Okla. 595, 139 Pac. 298,
L R. A. 1916C, 233; McDroom v.
Thompson, 25 Ore. 559, 42 Am.
St. Rep. 806, 37 Pac. 57; 7/arapol
v. Kountz, 14 S. D. 334, 86 Am.
St. Rep. 765. 85 N. W. 595;
Danielson v. Gustafson, 33 S. D.
440, 146 N. W. 562; Clark v.
Kirby, 18 Utah, 258, 55 Pac. 372.
67. Wiser v. Lawler, 189 U. S.
260, 271; Porter v. Wheeler, 105
Ala. 451, 47 L. Ed. 802; Wo.its
v Moore, 89 Ark. 19, 115 S. W.
931; Neal v. Gregory, 19 Fla. 356;
Bell v. Nye, 255 111. 283, 99 N.
E. 610; Farm Land Mfg. & De-
benture Co. V. Hopkins, 63 Kan.
678, 66 Pac. 1015; Mason v.
Philbrook, 69 Me. 57; Oberheim
V. Reeside, 116 Md. 265, 81 Atl.
590; Gray v. Bartlett, 20 Pick.
186; Boston & A. R. R. v. Rear-
don, 226 Mass. 286, 115 N. E. 408;
Staton V. Bryant, 55 Miss. 261:
Blodgett V. Perry, 97 Mo. 203, 10
Am. St. Rep. 307, 10 S. W. 891:
Clark V. Parsons, 69 N. H. 147, 70
2136 Real Property. [§ 546
the same when the true owner is in possession of the
land.^^
An estoppel of this character, since it is based on a
representation that one has not title to land, and not
that he has title, has obviously no effect upon a title
afterwards acquired by the person making the repre-
sentation.^^
This class of estoppel, though frequently spoken
if as ''equitable" estoppel, is ordinarily rocognized
and enforced in courts of law as well as in equity. But
though the principles governing in this class of cases
were not clearly recognized and formulated under that
name until well into tho nineteenth century,"" before
this there existed in equity a doctrine which was equiv-
alent to the modern doctrine of estoppel by representa-
tion, to the effect that one who knowingly makes a
false representation to one who acts on it is bound to
make that representation good;'^' and a similar princi-
ple was also involved in the equitable rule that the
fraudulent failure of one to make known his title to a
person about to purchase the land from another would
have the effect of changing the ordinary rule of priori-
Am. St. Rep. 157, 39 Atl. 898; velopment Co., 52 Tex. Civ. App.
Chambers v. Bessent, 17 N. M. 205, 114 S. W. 857. So it is
487, 134 Pac. 237; Fisher v. Moss- said that the person asserting the
man, 11 Ohio St. 42; Knouff v. estoppel must have been without
Thompson, 16 Pa. 357; Sullivan a convenient means of ascertain-
V. Moore, 84 S. C. 426, 65 S. E. ing the truth. Crary v. Dye,
108; Crabtree v. Winchester Bank, 208 U. S. 515, L. Ed.; Stonecipher
108 Tenn. 483, 67 S. W. 797; v. Kear, 131 Ga. 688, 63 S. E.
Bigelow v. Tapliff, 25 Vt. 273; 215; State v. Mutual Life Ins.
Kingman v. Graham, 51 Wis. 232, Co.,— (Ind.)— , 93 N. E. 213.
8 N. W. 181. Contra, Farr v. 69. Gluckauf v. Reed, 22 Cal.
Semmler, 24 S. D. 290, 123 N. 468; Davidson v. Dwyer, 62 Iowa,
W. 835. 332, 17 N. W. 575; Donaldson v.
68. Maeomter v. Kinney, 114 Hibner, 55 Mo. 492.
Minn. 146, 128 N. W. 1001, 130 70. Pickard v. Sears, 6 Adol. &
N. W. 851; Bliss v. Waterbury, E. 469 (A. D. 1837).
27 S. D. 429, 131 N. W. 731 (sevi- 71. Evans v. Bicknell, 6 Ves.
ble); Pierce v. Texas Rice De- 174; Bigelow, Estoppel, 603.
§ 546] Estoppel. 213:7
ties, and of postponing his claim to that of the jnir-
chaser."-
There has been considerable difference of ojjinion
as to whether a misrepresentation, whether by condnct
. or b}^ express statement, must be fraudulent in order
to give rise to an estoppel of this character. I'he de-
cided weight of authority is to the effect that it need
not be such;'^^ but apart from the question of the
existence of such a requirement in other case.'=!, it is
by some authorities asserted that, in order that one
may, by reason of misrepresentations, be estopped to
assert his title to land, he must have been guJlty of
fraud, on the theory that the application of the doctrine
of estoppel by representation in such a ease involves
in effect a transfer of land, and that is, by the Stat-
ute of Frauds, required to be in writing.'^'' More-
over, while, as a general rule, an estoppel by represen-
tation is as available at law as in equity, it is, by the
decisions of some states, not available at law when the
title to land is involved, on the ground that at law the
Statute of Frauds must control, and that in equity only
can the case be regarded as taken out of the statute
by the fraud, actual or constructive, involved in tlie mis-
representation."^^ The view is, however, taken in most
72. 2 Pomeroy, Eq. Jur. §§ 310; 2 Pomeroy, Eq. Jur. § 307.
686, 731; Ewart, Estoppel, 257. Contra, McDowell v. McDowell,
73. Bigelow, Estoppel, 685 note. HI Iowa, 286, 31 L. R. A. (N. S.)
2 Pomeroy, Eq. Jur. §§ 805, 806, 176, 133 Am. St. Rep. 170, 119
11 Am. & Eng. Enc. Law (2d N. W. 702.
Ed.) 431; Ewart, Estoppel, 88 ct 75. Stodenmeyer v. Hart, 155
seg. But fraud is necessary lo Ala. 243, 46 So. 488; Mattoon v.
the existence of a misrepresenta- Elliott, 259 111. 72, 102 N. E. 251;
tion, on which to base the es- Hayes v. Livington, 34 Mich. 384,
toppel, in the case of a mere 22 Am. Rep. 533; Johnson v.
failure to assert one's rights. Hogan, 158 Mich. 635, 123 N. W.
Ewart, Estoppel 92. Editorial 891; Petit v. Flint & P. M. R. Co..
note, 24 Harv. Law Rev. 494. ng Mich. 492, 75 Am. St. Rep.
74. Trenton Banking Co. v. 417, 78 N. W. 554; Suttle v.
Duncan, 86 N. Y. 221; Huyck v. Richmond, F. & P. R. Co., 76 Va.
Bailey, 100 Mich. 223, 58 N. W. 284.
1002; May v. Hanks. 62 N. C.
2138 Real Propekty. [§ 546
jurisdictions,'^'' that such an estoppel may be asserted
at law as well as in equity. So far as concerns the ap-
l)licability of the Statute of Frauds in such a ease, it
may be remarked that though, in the ordinary case,
the practical result of the estoppel is equivalent to that
of a transfer of the land, it does not actually involve
a transfer, and even were it a transfer, it would be a
transfer by operation of law, and consequently not with-
in the statute.
In equity the person in favor of whom the owner
is estopped to claim the land is entitled to a convey-
ance of the land by the owner, that is, the owner may be
compelled to make good his representations;'^'^ this, as
before stated, being a recognized equitable doctrine
before the legal development of the law of estoppel
under that name.'^^ In determining, therefore, the
rights of the person to assert the estoppel as against
persons other than the person who was originally
guilty of the misrepresentation, the former should,
it seems, be regarded as standing in the position of any
other person having an equity to a conveyance. Con-
sequently, the estoppel should be enforceable as against
any subsequent owner of the land, as would any other
equity, until the land passes to a bona fide purchaser
for value. '^'^ This view has usually been applied,^'^ though
76. Kirk v. Hamilton, 102 U. v. Slaveus, 218 Mo. 598, 117 S
S. 68, 26 L. Ed. 79; Davis v. W. 1104.
Davis, 26 Cal. 23; Levy v. Cox, 78. Ante, note 71.
22 Fla. 546, Bigelow v. Foss, 59 79. See Ewart, Estoppel, 196.
Me. 164; Macomber v. Kinney, on which the view here presented
114 Minn, 146, 128 N. W. 1001, is based.
130 N. W. 851; Brown v. Bowen. 80. Ions v. Harbison, 112 Cal.
30 N. Y. 519; Beaupland v. Mc- 260, 44 Pac. 572; Ramboz v.
Keen, 28 Pa. St. 124; Sh-' Stowell, 103 Cal. 588, 37 Pac.
Beebe, 35 Vt. 204; Bigelow, Estop- 519; Thornton v. Ferguson, 133
pel (6th Ed.) 781. Ga. 825, 134 Am. St. Rep. 226,
77. Citizens' Bank of Louisi- 67 S. E. 97; Rutz v. Kehn, 143
ana v. First Nat. Bank of New m. 558, 29 N. E. 553; Maxon r.
Orleans, L. R. 6 H. L. 360; Beatty Lane, 124 Ind. 592, 24 N. E.
V Sweeney, 26 Mich. 217; Favill 683; Webb v. Hardaway, — Ky.
v. Roberts. 50 N. Y. 222; Hubbard L. Rep.—, 121 S. W. 669; Brian
<^ 546] Estoppel. 2139
frequently tlie subject has been confused by uiider-
taking to determine whether the subsequent owner of
the land is a ''privy" of the person originally estopped,
a question which, by reason of the ambiguity of the
terms "privy" and ''privity" is difficult of solution.
An important application of the principle of estop-
pel by representation is seen in the decisions by which
one who allows the record title of land belonging to
him to stand in the name of another, who is m pos-
session or apparent possession, is precluded from as-
serting his ownership as against creditors of the
record owner who gave credit on the assumption . that
the record showed the true state of the title. ^"'' These
decisions are, to a great extent, cases in which the
record title being in the husband, the wife was held to
be estopped to assert her beneficial interest as against
the husband's creditors,^^"' but the same view has been ap-
plied when the relation of husband and wife was non
existent.
Another important application,, and at times ex-
tension, of the doctrine of equitable estoppel, is to be
found in the decisions, not inconsiderable in number,
that if an individual, by reason of a mistaken assump-
tion as to the extent or limits of a street, encroaches
upon the street by the erection of buildings or the
construction of other improvements, and the munic-
ipality makes no objection to such action on his part,
the municipality may be estopped subsecpiently to assert
the rights of the public as against sucli encroachment. **'
V. Bonvillain, 52 La. Ann. 1794, Rif^hts and Remedies, § 206 ct
28 So. 261; Stinchfield v. Emer- seq; Editorial note, 28 Yale Law
son, 52 Me. 465, 8.'', Am. Dec. Journ. f)85.
524; Southard v. Sutton, 68 Me. 80b. The cases in this regard
575; Thistle v. Buford, 50 Mo. are collected in A. & E. Ann.
278; Smith & Richer v. Hill Cas. 1914C, 1066. note to Goldberg
Bros., 17 N. M. 415, 134 Pac. 243; v. Parker.
Hodges V. Eddy, 41 Vt. 485, 98 81. See 3 Dillon, Municipal
Am. Dec. 612. Corporations (5th Ed.) §§ 1191,
80a. The subject is excellent- 1194.
ly discussed in Glenn, Creditors
2140
Real Property.
[§ 547
The chief difficulty in these cases appears to be in the
fact that ordinarily the abutting owner is in a position to
ascertain the existence and limits of the street, and i&
consequently hardly justified in asserting that he was
misled by the failure of the municipality to object to
the encroachments.^-
§ 547. Improvements by oral grantee. The cases
are generally to the effect that an oral gift of land,
if followed by the making of substantial improvements
by the donee on the strength thereof, will be recog-
nized and enforced by a court of equity.^' In some of
these cases it appears that the court construed the lan-
82. See notes in 8 Columbia
Law Rev. at p. 273, 21 Id. at p.
292, 30 Id. 769.
83. Neale v. Neale, 9 Wall. (U.
S.) 1, 19 L. Ed. 590; Burris v.
J.anders, 114 Cal. 310, 46 Pac.
162; Kinsell v. Thomas, 18 Cal.
App. 683, 124 Pac. 220; Hunt v.
Hayt, 10 Colo. 278, 15 Pac. 410;
Howell V. Ellsberry, 79 Ga. 475,
5 S. E. 96; Garbutt v. Mayo, 128
Ga. 269, 13 L. R. A. (N. S.) 58.
57 S. E. 495; Drum v. Stevens,
94 Ind. 181 (but see Winslow v.
Winslow, 52 Ind. 8) ; Bevington v.
Bevington, 133 Iowa, 351, 9 L. R.
A. (N. S.) 508. 12 Ann. Cas.
490. 110 N. W. 840; Dyer v. School
Dist. No. Ill of Sedgwick County,
76 Kan. 889, 92 Pac. 1122; Bige-
low V. Bigelow, 93 Me. 439, 45
Atl. 513, 95 Me., 17, 49 Atl. 49;
Polk v. Clark, 92 Md. 372, 48
Atl. 67; Whitaker v. McDaniel,
113 Md 388, 78 Atl. 1; Trebesch
V. Trebesch, 130 Minn. 368, 153
N. W. 754; Maas v. Anchor Fire
Ins. Co. of Cincinnati, 148 Mich.
432, 111 N. W. 1044; Dozier v.
Matson, 94 Mo. 328, 4 Am. St.
Rep. 388, 7 S. W. 268; Story v.
Black, 5 Mont. 26, 51 Am. Rep.
37, 1 Pac. 1; Merriman v. Merrl-
man, 75 Neb. 222, 166 N. W. 174;
Seavey v. Drake, 62 N. H. 393;
Freeman v. Freeman, 43 N. Y.
34, 3 Am. Rep. 657; Messiah
Home V. Rogers, 212 N. Y. 315,
106 N. E. 59; Thayer v .Thayer,
69 Ore. 138, 138 Pac. 478;
Syler's Lessee v. Eckert, 1 Binn.
(Pa.) 378; Burns v. Suther-
land, 7 Pa. 103; Cook v. Cook, 24
S. D. 223, 123 N. W. 693; Wool-
ridge V. Hancock, 70 Tex. 18, 6
S. W. 818; Cooke v. Young, 2
Utah, 254; Burkholder v. Ludlan,
30 Gratt. (Va.) 255, 32 Am. R.jp.
668; Halsey v. Peters, 79 Va. 60;
Coleman v. Larson, 49 Wash. 321,
95 Pac. 262; Crim v. England, 46
W. Va. 480, 76 Am. St. Rep. 826.
33 S. E 310; Dillwyn v. Llewellyn,
4 De G. F. & J. 517 (semble);
See 1 White & Tudor's Ldg. Cas.
in Eq. (4th Am. Ed.) p. 1047;
Pomeroy, Equitable Remedies, §
828; Editorial notes, 15 Harv.
Rev. at p. 659; 13 Columbia Law
Rev. at p. 151; 26 Yale Law
§ 547] Estoppel. 2141
guage used by the donor as in effect an offer to convey
the land to the so-called donee on condition that he
would make improvements, which offer was a.^-cepted
by the making of improvements, giving rise to a con-
tract to convey the land,^^ but more usually the de-
cision is based upon the theory that, after the owner
of land has induced another to make substantial ex-
penditures thereon by purporting to give him the land,
a withdrawal of such gift would, although no contract
is created, in effect operate as a fraud upon the donee,
which equity will interfere to prevent by requiring the
execution of a conveyance in accordance with the in
tended gift. In applying this doctrine the courts per-
haps ordinarily refer to it as a case of specific per-
formance, stating that the making of improvements con-
stitutes a jDart performance sufficient to take the trans-
action out of the Statute of Frauds. The expressions
''part performance" and "specific performance, how-
ever, appear to be particularly inappropriate as applied
to an attempted conveyance, as distinguished from a
contract, and the doctrine may, it is conceived, be more
satisfactorily regarded as involving an application, or
perhaps extension, of the principle of estoppel tn pais.
Journ. 592; article by Professor 3 Blackf. (Ind.) 446; Ridley v.
Roscoe Pound, 13 Illinois Law McNain, 2 Humph. (Tenn.) 174.
Rev. at p. 672. 84. Gwynn v. McCauley, 32
In occasional comparatively Ark. 97; Gaines v. Kendall, 176
early decisions the oral donee 111. 228, 52 L. R. A. 277, 58 N.
was restricted to a right to re- E. 598; Harlan v. Harlan, 273
cover the value of his improve- 111. 155, 112 N. E. 452; Haines
ments. Evans v. Battle, 19 Ala. v. Haines, 6 Md. 435; Seavey v.
398; Runker v. Abele, 8 B. Mon. Drake, 62 N. H. 393; Young v.
(Ky.) 566. See also Tolleson Overbaugh, 145 N. Y. 158, 39 N
V Blackstock, 95 Ala. 510, 11 So. E. 712; Greenwood v. School Dis-
284. Relief to the oral donee trict, 126 Mich. 81, 85 N. W. 241.
was denied In Adamson v. Lamb
2 R. P.— 60
CHAPTER XXVII.
ESCHEAT AND FORFEITURE.
§ 548. Escheat.
549. Forfeiture.
§ 548. Escheat. At common law, as before stated,
an escheat of land occurred in favor of the feudal lord
in case the tenure terminated by reason of the failure
of inheritable blood, such failure arising from the
corruption of the blood of the tenant by attainder of
felony, as well as from the death of the tenant ^;ith-
out any ascertainable heir.^ In this country, in those
states in which tenure is to be regarded as nonexistent,^
the feudal conception of escheat cannot obtain, though
even there the right of the state to land the owner of
which dies intestate without heirs would no doubt be
sustained as an attribute of sovereignty. Any question
upon the subject, however, is avoided in most, if not
all, the states by statutory provisions that, upon the
failure of other heirs, the land shall pass to the
state or to some state agency.'' This right of the state
to land in default of heirs is ordinarily spoken of as
''escheat."^
An ''escheat" of this character may occur in states
where aliens are forbidden to hold lands, as a result of
the absence of all heirs other than aliens, and l- kewi.se
owing to the inability of one, otherwise entitled to in-
herit, to trace his descent except through an alien.*"
1. 8 Blackst. Comm. 244 et laws of the state" within the in-
seq; ante, § 9. heritance tax law, see 29 Harv.
2. Ante, § 13. Law Rev. 455, discussing and ap-
3. 1 Stimson's Am. St. Law, §§ proving People v. Richardson, 111.
400, 1151-1154, 3125. 103 N. E. 1033, in favor of the
4. As to whether a county ac- liability to the state,
quiring land, under the state 4a. Post, § 595.
statute, took "by the intestate
(2142)
§ 549] Escheat and Forfeiture. 2143
But the term *' escheat" is not, it seems applicable to
the forcible acquisition by the state of land which an
alien has, in violation of law, undertaken to acquire bj^
purchase, though the term is frequently so used, this
being in the nature of the enforcement of a forfeiture
by the state, rather than an escheat.^
§ 549. Forfeiture To state. At common law,
upon his attainder of high treason, one forfeited to
the crown all his freehold estates, and, in case of petit
treason and felony, his freehold estates for life, and his
chattel interests absolutely.*' In this country the effect
of a conviction of crime is rarely to forfeit all the land
of the wrongdoer, the statutes of most states providing
explicitly that no conviction of crime shall work for-
feiture of estate or corruption of blood, though in two
or three there may, it seems, be a forfeiture during the
life of the offender.'^
If an alien undertakes to acquire land in violation
of the law of the particular state, he may, unle^^s pro-
tected by the terms of a treaty with his government, be
deprived of such land, and a forfeiture to the state
be compelled.^
During the American Revolution, many of the co-
lonial governments confiscated the lands of persons sup-
porting the royal cause,^ and, during the Civil War,
acts confiscating the property of persons aiding the
Confederate cause were passed by congress, the confis-
cation, however, in the case of land, being limited to
the term of the offender's natural life,^^ The confis-
cation of enemies' property is, at the present day, not
generally approved by writers on international law.^^
5. See 2 Blackst. Coram. 274, can Revolution, 75 et seq.
293; 2 Kent's Comm. 61; Read v. 10. Jenkins v. Collard, 145 U.
Read, 5 Call (Va.) 207. S. 546, 36 L. Ed. 812.
6. 4 Blackst. Comm, 381-383. 11. Lawrence's Wheaton, In-
7. 1 Stimson's Am. St. Law, ternat. Law, 596 et seq. Law-
§§ 143, 1162. rence, Internat. Law, § 178; Tay-
8. Post, § 597. lor, Internat. Law, § 540.
9. Sabine, Loyalists of Ameri-
2144 Real Peopeety. [§ 549
Occasionally the statute, in restricting the power ot
a corporation to acquire land, provides, expressly or
impliedly, that land acquired by the corporation in
violation of law shall be forfeited to the state. ^^ In the
absence of such a provision for forfeiture, though the
state may annul the transfer or dissolve the corpora-
tion, it does not have any right to the land which the
corporation thus wrongfully acquired. ^-^
Land used for purposes which violate the internal
revenue laws in certain ways become subject to for-
feiture, by express provision of statute, to the United
States government.^*
At common law, the proceedings on the part of the
state to enforce a forfeiture as well as an escheat was
by ''office found" or "inquest of office," this being a
proceeding, by the aid of a jury, which was made use
of in any cases in which the crown asserted a claim to
lands or goods. ^^ There is, in some states, a statutory
proceeding for the enforcement of such rights, but an
inquest of office as at common law, or, it seems, an
action of ejectment, would be sufficient to try the rights
of the state to the land in any such case.
To individual. A tenant of a particular estate
usually holds it subject to certain implied conditions.
At common law, a life tenant held the land subject to
an implied condition that he should not make a feoff-
ment thereof in fee simple, since this divested the
whole fee-simple title, and by so doing he forfeited his
12. See Leazure v. Hillegas, 7 v. Licking Valley Land & Min-
Serg. & R. (Pa.) 313; Com. v. ing Co., 15 Ky. L. Rep. 211,
New York, L. E. & W. R. Co., 132 22 S. W. 881; Com. v. New York,
Pa. St. 591, 7 L. R. A. 634, 19 L. E. & W. R. Co., 132 Pa. St.
Atl. 291, 139 Pa. St. 457, 21 Atl. 591, 7 L. R. A. 634, 19 Atl. 291,
528; Louisville & N. R. Co. v. 139 Pa. St. 457, 21 Atl. 528;
Com., 151 Ky. 325, 151 S. W. 934, Fayette Land Co. v. Louisville &
151 Ky. 774, 152 S. W. 976. N. R. Co., 93 Va. 274, 24 S. E.
13. Union Nat. Bank v. Mat- 1016.
thews, 98 U. S. 621, 25 L. Ed. 14. Rev. St. U. S. § 3400.
188; National Bank of Commerce 15. 3 Blackst. Comm. 358.
§ 549] Escheat and Foefeiture. 2145
estate. This ground of forfeiture is now obsolete,
since a modern conveyance passes onl}- such interest
as the grantor has/*^ A life tenant may, however, at
the present day, forfeit his interest by the commission
of acts of waste, the statute frequently containing a
provision to this effect.^" A tenant under a lease may
also forfeit his tenancy by his disclaimer of his land-
lord's title, and, in some states, by the use of the
premises for an illegal purpose.^*
The subject of the forfeiture of an estate in land
for breach of an express condition subsequent lias been
before considered. ^^
16. Ante, § 33. 18. 2 Tiffany, Landrd & Ten.
17. 1 Stimson's Am. St. Law, §§ 192, 193. See ante, § 77.
§ 1332. 19. Ante, §§ 82-88.
CHAPTER XXVIII.
TRANSFER UNDER JUDICIAL PROCESS OR DECREE.
§ 550. Sales and transfers under execution.
551. Sales in equity at the instance of creditors.
552. Sales of decedent's lands.
553. Sales of lands of infants and insane persons.
554. Sales and transfers for purpose of partition.
555. Decrees transferring title.
&b6. Adjudications of bankruptcy.
§ 550. Sales and transfers under execution. The
land of a debtor was first made subject to the claims
of creditors by an early statute/ which provided that
one who had recovered a judgment might elect to have
the sheriff deliver to him the chattels of the dentor and
one-half his land, the writ under which this was done
being termed a "writ of elegit/' because it recited that
the creditor had elected (elegit) to pursue that remedy.
Formerly the creditor had merely the right to retain
the land taken under this writ until the rejits and
profits sufficed to pay the judgment, he being knowm as
a tenant by elegit; but now, by statute in England,
the creditor may not only take all the debtor's land
under the writ, but he may obtain an order for the sale
of the land, the proceeds being distributed ara')ng all
the creditors.^
The writ of elegit has been made use of in but few-
states, and is at the present daj-, it seems, obsolete in
every state but Delaware.^ In most of the states the
same method is authorized for the realization of debts
from the land of the judgment debtor as from his chat-
tels, that is, a seizure and sale by the sheriff, and ap-
1. 13 Edw. I c. 18 (St. West- Ed.) § 370.
minster II.). 3. Freeman, Executions (3d
2. WiUiams, Real Prop. (21st Ed.) 271.
(2146)
§ 550] Judicial Peocess or Decree. 2147
plication of the proceeds to the payment of the .judg-
ment. In the New England states, however, the satis-
faction of a judgment out of the debtor's land is usually
obtained, not by a sale of the land, but by a delivery of
the land, or a part thereof, at a value fixed by ap-
praisers, to the judgment creditor, this being known
as a levy ''by extent," and the land being said to be
''extended." The statutory provisions as to the method
of making the extent are full and precise, and the}'' must
be strictly followed. A certain period, usually six
months or a year, is allowed to the debtor in which he
may pay the judgment and recover the extended lands,
but, if this is not done, the creditor acquires the whole
estate and interest of the debtor absolutely.^ The satis-
faction of a pecuniary judgment, whether by a sale
under the writ or an extent, is known as an "execution"
of the judgment.
As a general rule, all legal interests in land are
subject to sale under execution.^ But a bare legal title,
that is, a legal title not associated with any beneficial
interest whatsoever, is not so subject.*' The interest of
a tenant at will is not so subject,''' since he has no
interest capable of transfer.* Whether the possibility
of an estate created by the limitation of an estate
subject to a condition precedent, such as a contingent
remainder or an executory devise, is subject to sale
under execution would seem ordinarily to depend on
whether it is an interest which is capable of transfer,^
4. 3 Freeman, Executions, § McCann, 24 How. (U. S.) o98, 16
372 et seq.; 2 Dembitz, Land L. Ed. 714.
Titles, § 173. 7. Colvin v. Baker, 2 Barb.
5. 2 Freeman, Executions, § (N. Y.) 206; Bigelow v. Finch,
172. 11 Barb. (N. Y.) 498; Waggoner
6. Baker v. Copenbarger, 15 v. Speck, 3 Ohio, 292.
in. 103, 58 Am. Dec. 600; Mor- 8. Ante, § 62(d).
rison v. Herrington, 120 Mo. 9. So it would ordinarily not
665, 25 S. W. 568; Mallory v. be so liable if in favor of un-
Clark, 9 Abb. Pr. (N. Y.) 358; certain persons. Taylor v. Tay-
Bostick V. Keizer, 4 J. J. Marsh. lor, 118 Iowa, 407, 92 N. W. 71
597, 20 Am. Dec. 237; Smith v. while it might be liable if in
2148 Real Propeety. [§ 550
provided the langauge of the statute authorizing execu-
tion sales is sufficiently broad to apply to such a
case.^"
At common law there was no method by which
equitable interests could be reached by execution, but,
by the Statute of Frauds/^ it was enacted that the
execution might be levied on lands of which saiy other
person or persons were seised or possessed of in trust
for the execution defendant. This provision has been
adojDted or re-enacted in a number of the states, but it
has usually been construed as applicable only in cases
in which the execution defendant has, under an express
declaration of trust, the exclusive enjoyment of a bene-
ficial interest in property, the legal title to wliich is in
another, and neither it not its American counterparts
have had the effect of making all equitable interests
subject to execution. In some states, however, more
liberal statutes have been adopted, subjecting equitable
interests generally to execution, while in others the
common-law rule which prevailed previous to the Stat-
ute of Frauds still controls. ^^ Equitable interests which
cannot be sold under- execution may usually be reached
by a proceeding in equity, known as a "creditor's bill,"
or ''creditors' suit. "^^
A sale by a sheriff under a writ of execution is by
force of a statutory power,^* and is effective, if legally
favor of a certain person, the 474.
execution defendant. De Haas v. 10. In New York it is said
Bunn, 2 Pa. 335, 44 Am. Dec. that a contingent remainder is
201 (executory devise) ; White v. not within the terms of the exe-
McPheeters, 75 Mo. 286; In re cution statute. Jackson v. Mid-
Packer's Estate, 246 Pa. 116, 92 dleton. 52 Barb. (N. Y.) 9;
Atl. 70 isemhle). Sheridan v. House, 4 Abb. Dec.
Occasionally however it appears 218.
to be assumed that no contingent 11. 29 Car. II. c. 3, § 10.
remainder is liable to sale under 12. 2 Freeman, Executions, §§
execution. Watson v. Dodd, 68 187, 189; 11 Am. & Eng. Bnc.
N. C. 528; Howard v. Peavy, 128 Law (2d Ed.) 632.
111. 430, 15 Am. St. Rep. 120, 21 13. 3 Freeman, Executions, §
N. E. 503; Hill v. Hill, 264 lU. 424 et seq.; 5 Enc. PL & Pr. 393.
219, 106 N. E. 262; Roundtree v. See post, § 551.
Roundtree, 26 S. C. 450, 2 S. E. 14. See ante, § 312.
§ 550] Judicial Process ok Decree. 2149
made, and followed by a conveyance to the purchaser,
to divest the title of the judgment debtor, and to vest
it in the vendee. In order that the sale may have this
effect, it must be made under a judgincnt rendered by a
court having jurisdiction of the subj'J-ct- matter and of
the parties.^^ If the judgment is valid, an innocent pur-
chaser at the sale is not usually affected by irregulari-
ties in the j^roceedings leading up to the sale, though,
if the judgment creditor is the purchaser, the rule is
different, and he is regarded as chargeable with notice
of any irregularities.^^
The statutes of a number of states give the judg-ment
debtor a certain period after the execution sale within
which he may redeem therefrom, hi the absence of
statute, there is no right of redemption.^"
The sheriff is required, by the statutes of most, if
not all, the states, to make a conveyance of the land to
the purchaser at the sale, and this is usually regarded
as necessary to vest the legal title in the purchaser.
This conveyance should recite the recovery of the judg-
ment, the issue of the writ, and the sale thereunder,
but any requirements in this regard are regarded as
directory merely. The conveyance must usually be
executed like other conveyances, and an acknowledg-
ment is, in most states, though not in all, necessary only
for the purpose of record. If the conveyance is in-
valid, the purchaser is ordinarily entitled to have a
valid one executed in its place. ^*
In the case of a sale under execution, the sale is
made bv the sheriff as a ministerial officer, acting under
the writ, and the court has no control over his actions,
and, except in a few states, no confirmation of the sale
by the court is necessary in order to validate the sale.
An execution sale is accordingly to be distinguished
15. Freeman, Executions, §§ 17. 3 Freeman, Executions, §
19, 20; Kleber, Void Judicial 314.
Sales, §§ 262-267, 294. 18. 3 Freeman, Executions, §
16. 3 Freeman, Executions, § 324 ct seq.
339 et seq.
2150 Eeal Peoperty. [§§ 551, 552
from the sales hereafter referred to in this chapter,
which are made in conformity with the order of a court,
and must be confirmed by it, and which are accordingly
I'egarded as the act of the court, though a commissioner
or other officer is necessarily employed by the court as
an instrument in making the sale. An execution sale
is accordingly not, properly speaking, a judicial sale.'^
§ 551. Sales in equity at the instance of creditors.
The various liens to which land may be subject in behalf
of a person other than the owners are enumerated in
another part of this work.^^ These liens are almost in-
variably enforced by a sale of the land under the de-
cree of a court of equity for the purpose of paying the
amount of the lien from the proceeds. Likewise, equity
may decree a sale in a creditors' suit brought to ob-
tain a discovery of assets, to prevent waste and spolia-
tion thereof, or to reach property which is not subject
to execution because of its equitable character, or be-
cause transferred by a conveyance fraudulent as to
creditors.2^
§ 552. Sales of decedent's lands. At common law,
an unsecured debt could not be enforced, as against the
real property of the debtor, after the latter 's decease,
unless it was due on a contract under seal, which ex-
pressly bound the debtor's heirs, and then it could be
enforced against the heir to the extent of any land in
fee simple descended to him.^- Under this condition of
the law there was no remedy available to even the
specialty creditor in case the decedent had devised the
land, or the heir had aliened it, and, accordingly, it
was provided by statute^^ that a devisee should be
liable to the same extent as the heir, and that no alien-
ation by either the heir or the devisee should affect his
19. Kleber, Void Judicial Sales. 1413-1415.
§i 15-20. 22. 2 Blackst. Comm. 244, Wil-
20. Post, Part VI. liams, Real Prop. (21st Ed.) 280.
21. 3 Pomeroy, Eq. Jur. §§ 23. 3 Wm. & M. c. 14 (A. D.
§ 552] Judicial Process or Decree. 2151
liability for the debt. These statutes imposed on the
heir and devisee a personal liability for the debt to the
extent of the value of land descended or devised to
him, and this was restricted to debts under seal.
Later it was provided-'* that all interests in land should
be assets for the payment of debts, whether created by
simple contract or by contract under seal, and that
the heir or devisee might be sued in equity accordingh'
by any creditor of the deceased. In this country there
is probably in every state a statute making the
realty of a decedent liable for his debts as against his
heirs and devisees.^^
Under the English statute making the lands of a
decedent liable in equity for his debts, the proceeding
to subject the land was by a "creditors' bill" in equity
and this mode of proceeding for the purpose is recog-
nized in a number of the states.-^ In most of the states,
however, the probate court has full jurisdiction to order
the sale of land for the payment of debts, and likewise,
frequently, for other purposes, such as the payment of
legacies, or in order to make distribution, and the
statutes usually provide that such sales shall be ordered
on the application of the executor or administrator.^'''
The length of time after the decedent's death within
which a sale of lands for this purpose can be applied
for by the personal representatives or the creditors of
deceased is in some states fixed by statute. ^^ In the ab-
sence of statute, it is said that the application must
be made within a reasonable time,^^ and occasionally
1691; 6 & 7 Win. Ill c. 14 (A. D. tion, § 463; 11 Am. & Ens. Enc.
1695), 1 Wm. IV c. 47 (A. D. Law, 1072.
1830). 27. 2 Woerner, Administration,
24. 3 & 4 Wm. IV. c. 104 (A. §§ 463, 464.
D. 1833). 28. 2 Woerner, Administration,
25. 2 Dembitz, Land Titles. § § 465.
150; 2 Woerner, Administration, 29. Liddel v. MrVickar, 11 N.
§§ 463, 490; 11 Am. & Eng. Enc. J Law, 44; Rosenthal v. Renick,
Law (2d Ed.) 838. 44 111. 202; Killough v. Hinton,
26. 3 Pomeroy, Eq. .lur. §§ 54 Ark. 65; State v. Probate Court
1152-1154; 2 Woerner, Admiuistra-
2152 Real Pkopekty. [§ 552
this has been determined with reference to the statutory
period in which an action to recover lands is barred.*^*'
A sale of real estate to pay debts is ordinarily
authorized only when the personal estate is insufficient
for the purpose, and that such is the case must appear
from the bill or petition for sale in order to give the
court jurisdiction. In some states proceedings for
sale by an executor or administrator are regarded as
adversary to the heirs or devisees, so that a failure to
give notice to the latter as required by statute renders
the sale void. In other states they are regarded as
proceedings in rem, and so valid, though no notice is
given.^^ In a number of states the failure of the execu-
tor or administrator to give bond before making sale
as required by the statute is regarded as absolutely in-
validating the sale, and sometimes such effect is given
to a failure to make the proper oath.^-
The sale must comply not only with the require-
ments of the statute, but also with the terms of the or-
der for sale. The sale, when made by the executor or
administrator, must, in most states, be confirmed by
the court in order to have any effect whatsoever in
passing title, since the personal representative, not ex-
pressly empowered to sell by the terms of the will, is
regarded as the instrument of the court, and the sale,
to be valid, must be adopted by the court as its own
act.^^ After the sale is confirmed, the executor or
administrator, still acting as the instrument of the
court, is usually required to make a conveyance of the
ol Ramsey County, 40 Minn. 296; Sumner v. Child, 2 Conn. 607.
Ferguson v. Scott, 49 Miss. 500. 31. 2 Woerner, Administration,
See Bindley's Appeal, 69 Pa. St. § 466; Kleber, Void Judicial
295. Sales, §§ 72, 156.
30. Ricard v. Williams, 7 32. 2 Woerner, Administration,
Wheat. (U. S.) 59, 55 L. Ed. 398; § 472; Kleber, Void Judicial Sales,
Wingerter v. Wlngerter, 71 Cal. _ §§ 253, 254, 316, 317.
105, 11 Pac. 853; Rosenthal v. ' 33. Kleber, Void Judicial Sales,
Renick, 44 111. 202; Bozeman v. §§ 1-4, 381.
Bozeman, 82 Ala. 389, 2 So. 732;
§§ 553, 554] Judicial Process or Decree. 2153
land to the purchaser, and, until such conveyance is
executed, the purchaser has an equitable title inerely.^^
§ 553. Sales of lands of infants and insane persons.
The extent to which a court of . equity has inherent
power to sell the land of an infant for his benefit is
involved in considerable doubt; but the question has,
to a considerable extent, lost its importance, owing to
the passage of acts, in most, if not all, of the states,
authorizing such sales by courts either of etiuity or
probate jurisdiction.^^ These sales are usually con
ducted by the guardian of the infant, under the direction
of the court, the proceedings being generally similar to
those in the case of sales of decedents' lands. The ap-
plication for the sale is ordinarily required to h(^ made
by the guardian, but in some states the statute author-
izes it to be made by parents or other persons inter-
ested in the infant 's welf are.^*^
The lands of persons non compos mentis may like-
wise be sold under the direction of a court by force
of statute to that effect in all or in most of the states,
and occasionally such power has been asserted by courts
of equity apart from statute. The sale is usually made
by the committee or guardian of the lunatic acting as
an instrument of the court."^^
§ 554. Sales and transfers for purpose of partition.
Proceedings by one interested in land as co-owner with
others, to obtain a partition or sale of the land, have
previously been discussed.''"^ In this country the juris-
diction of proceedings for partition is usually deter-
34. 2 Woerner, Administration, 36. W^oerner, Guardianship, §§
§ 480. 08-78; 2 Dembitz, Land Titles, §
35. And the question of the 151; 3 Pomeroy, Eq. Jur. § 1309;
inherent power of a court of Kleber, Void Judicial Sales, §§
equity may well arise by reason 93, 157, 234-2.'',6.
of a failure to comply with the 37. Woerner, Guardianship, §
statutory requirements. See edi- 148; 2 Dembitz, Land Title.s, §
torial note, 23 Harv. Law Rev. 152.
473. 38. Ante. § 204.
2154 Real Property. [§ 555
mined by the statute, and there are in many states
special provisions for the partition of land belonging to
a decedent in the probate court, or for a sale for the
purpose of partition.^*^
As before stated, a partition proceeding is avail-
able only when there is a unity of possession in two or
more persons, and consequently cannot be employed in
order to apportion the land, or to procure a sale, when
the persons interested in the land have successive rights
of possession, as when thej^ are tenants for life and in
remainder, or one is tenant in fee simple, subject to an
executory limitation in favor of the other. In. a few-
states there is a provision for a sale in such case under
the direction of a court of equity.^''
§ 555. Decrees transferring title. The court of
chancery in England always acted in personam, and not
in rem, and consequently, in adjudicating rights of the
different parties to a proceeding concerning land, it did
not, by its decree, undertake to transfer the title from
one to the other of such parties, but gave relief by
ordering one party to make a conveyance, cancel an
instrument, or do other acts so as to establish and per-
fect the rights of the respective parties as adjudicated.
This principle of action on the part of courts of equity
has, however, been changed by statute in many states of
this country, so that, instead of requiring the parties to
carry out the decree, the court itself does so, acting
through a commissioner or other officer, and, under some
statutes, the decree alone, without any further action, is
sufficient to transfer the title."* ^ As regards land out-
side the jurisdiction, however, the court must still act
in personam}^
39. Freeman, Cotenancy, §§ 42. Pomeroy, Eq. Jur. §§ 134,
550-564. 135, 170, 1317. See Arndt v.
40. 2 Dembitz, Land Titles, § Griggs, 134 U. S. 316, 33 L. Ed.
156. 918; Lindley v. O'ReiUy, 50 N.
41. Huston, Decrees in Equity, .J. L. 636, 1 L. R. A. 79, 7 Am.
Ch. 2. St. Rep. 802, 15 Atl. 379.
§ 556] Judicial Process or Decree. 2155
While a judgment in an action concerning land of a
strictly legal character, such as ejectment, or the old
real actions, or the statutory ''trespass to try title,"
is usually decisive of the rights of the parties thereto
in regard to the ownership of the land, as betweon them-
selves, it cannot be regarded as transferring t!)e title
in any sense, but merely decides what effect is to be
given to previous transfers.
§ 556. Adjudications of bankruptcy. The present
bankrupt act^" provides that the trustee of a bankrupt,
upon his appointment and qualification, shall be vested
b}^ operation of law with the title of the bankrupt, as of
the date he was adjudged a bankrupt, to all proj^erty
which, prior to the filing of the petition, he could by any
means have transferred, or which might hav^e been
levied upon and sold under judicial process agaiiist him.
The title to the bankrupt's land, therefore, as well as
other property, passes, as it were, by force of Ihe ad-
judication of bankruptcy, to the trustee subsequently
appointed. Previous bankrupt acts, as well as the in-
solvency statutes of the various states, have contained
similar provisions transferring the property of the
bankrupt or insolvent to the trustee, for. the purpose of
distribution among creditors."*^
43. Act July 1, 1898 (30 Stat. 44. 16 ' A. & E. Encyc. Law
565, § 70a). 721.
CHAPTER XXIX.
TRANSFER FOR NONPAYMENT OF TAXES,
§ 557. Character of title acquired.
558. Judgment for taxes.
559. Forfeiture to state.
560. Remedial legislation.
§ 557. Character of title acquired. The payment
of taxes on land is in this country usually enforced by
a summary sale of the land, conducted by the tax col
lector or some other ministerial officer.
The power to sell lands for nonpayment of taxes is
a purely statutory power, and it has always been held
that the statutory requirements as to the mode of mak-
ing sale must be strictly complied with, and that, more-
over, since the power to sell exists only in case there
are valid taxes, which are unpaid, no title will pass un-
less the tax was levied and assessed in accordance with
law. Tax sales have accordingly been held to be in-
valid in particular cases for want of a valid assessment
or valuation of the property, duly verified by the proper
officers, and approved by the legal reviewing authority
or "board of equalization," defects in the levy of the
tax, defects in the warrant issued to the collector for
the collection of the tax, failure to return the list of
deliquent taxes, noncompliance with the various re-
quirements as to the mode of advertising the sale,
failure to comply with the statute, and also with the
advertisement, as to the conduct of the sale, failure to
sell all the land, though a part brings enough to pay the
taxes.
Furthermore, the statutory requirements as to the
return of the sale by the officer must be complied with,
and he must make a conveyance to the purci'aser in
strict conformity to the statute. The sale is 'ilso in-
(2156)
§ 557] NOXPAYMENT OF Taxes. 2157
valid if the tax was unconstitutional, or not pro})erly
levied by the legislature or the municipal authorities
or if the land was exempt, or the taxes liad been paid
before the sale. In vievv^ of these many possible de-
fects in the proceedings, as well as others which, might
be mentioned, it is not strange that titles based on tax
sales are usually regarded as of most questionable
soundness, and, though this condition of things has
been to some extent removed by legislation of a char-
acter hereafter referred to, the possibilities of failure
of title through defects in the proceedings are stdl such
that land, when sold for taxes, rarelj^, if ever, brings its
actual value, and its purchase is ordinarily for pur-
poses of speculation, rather than for actual occu])ation/
By the statutes of many states, the sale is of an
estate in fee simple in the land, free from any incum-
brances, and without reference to the estate or interest
belonging to the particular person against whom the
tax was assessed, that is, the proceeding for sale is in
eifect against the land, and not against any particular
owner thereof ; and if one interested in the land, tliougii
not bound to pa}'' the taxes as against the person in pos-
session, desires to protect his interest, he must pay the
taxes, or redeem from the tax sale. So, a remainderman
or lienor may, by the failure of the owner in possession
to pay the taxes, be divested of all interest in the land.
In some states, however, or under particular acts, the
taxes are not enforceable against the entire interest in
the land, but against the interest onh' of tho person
against whom the taxes are assessed, in which case th/.'
interests of other owners or of lienors are not divested
by the sale.
1. An admirable sketch of the are those by Henry C. Black,
uncertainties involved in a tax Esq. and by Robert S. Blackwell,
title is contained in 2 Dembitz, the fifth edition of which is
Land Titles, p., 1323 et seq. Tlie well edited by Frank Parsons,
standard works upon the very Esq.
extensive subject of tax sales
2 R. P.— 61
2158 Real Property. [§ 558
The statute usually, if not always, names a certain
period, varying from six months to three years, within
which the owner of the laud may redeem from the sale
by the pa^Tuent to the purchaser of the purchase money,
interest, and costs, in addition to which he is ordinarily
required to pay a penalty, calculated in interest at n
high. rate.
The purchaser has, until the execution ot a con-
veyance or ''deed" by the officer making the sale,
neither a legal nor equitable title to the land, but rather
a lien thereon for the amount of the purchase money,
interest, costs, and penalty. He is usually entitled to
the deed upon the expiration of the time for redemption,
and not before, and the statutes frequently imprse cer-
tain formalities as conditions precedent to his obtaining
the deed. The requirements of the statute as to the
form of the deed, which are frequently most detaileil
and precise in character, and often include full recitals
of the antecedent proceedings, must be strictly followed,
and the deed must be executed in strict compliance wnith
the statute in order to vest the title in the purchaser,
§ 558. Judgment for taxes. In some states the leg-
islator has provided that the sale of land for taxes
shall be preceded by the rendition of a judgment deter-
mining the amount of the taxes due. The proceeding
to obtain such a judgment is in the nature of a proceed-
ing in rem against the land, rather than in personam
against the owner of the land, and, consequently,
personal service of notice of the proceeding is not
regarded as a prerequisite to the judgment, construc-
tive service by publication being authorized. Any ob-
jections to the validity of the tax or to the assessment
must be made by way of defense to the application for
judgment, and the judgment is. until reversed, re-
garded as conclusive of the right to make the sale,
according to numerous decisions, even though the taxes
were actually paid.
^§ 551>, 560] XoxPAYMEXT OF Taxes. 2151)
§ 559. Forfeiture to state. The statute occasiou-
ally provides tliat, upon noiipaymeut of taxes due the
state, the laud, instead of being sold, shall be for-
feited to the state. To what extent such a forfeiture is
valid if not preceded by a judicial finding that a default
in the payment of taxes exists is a question as t>. which
there has been considerable difference of opinion. -
§ 560. Remedial legislation. The legislatures of
the various states have, particularly in more recent
years, frequently passed curative statutes for the pur-
pose of validating tax sales previously made, as well
as those thereafter to be made. These acts are re-
garded as valid in so far as they undertake to
validate the proceedings in respect to a particuhir step
therein with which the legislature could have dis})ensed
in the first place, but no furtlier. The same end of
curing defective proceedings has frequently been at-
tained by the passage of acts providing that the deed
to the purchaser shall be prima facie evidence of th"
regularity of the proceedings, and it has sometimes
been made even conclusive evidence in this respect, this
latter legislation being valid, however, as are other
curative acts, in regard only to matters which conld
have been previously dispensed with.
Another mode in which the legislatures have under-
taken to add to the security of the purchaser at a tax
sale is by "short" statutes of limitation in connection
with tax titles, requiring the original owner to proceed
to recover the land from the jnirchaser within a certain
number of years, less than that within which actions for
land must ordinarily be brought. These statutes have
usually, like the other statutes having the same purpose-
in view, been regarded as applicable only wli^ii tlie
jurisdictional requirements of a valid sale were present,
and as insufficient to validate a sale wliich is void for
want of jurisdiction on the part of the officials to make
the sale.
2. Cooley. Taxalitm (:!rd V.(\.)
S5S ct scfj.
CHAPTER XXX.
APPROPRIATION UNDER EMINENT DOMAIN.
§ 561. TTie power to appropriate.
562. Rights subject to appropriation.
563. Mode of appropriation.
564. Time of passing of title.
565. Cessation of public use.
§ 561. The power to appropriate. The power of
the state to approjDriate profjerty for public nse. upon
payment of just compensation, may be exercised direct-
ly by the state itself, or the state may, in the exercise
of the power, select particular agencies, either natural
persons or corporations, on whom it confers the right
to take private projDerty for joublic use. Thus, the
legislature may, and ordinarily does, authorize munici-
pal corporations to appropriate or "condemn" land
for street and other municipal purposes, and s(; it may
authorize a railroad or irrigation company, or other
private corporation, to appropriate property for its use,
upon jDayment of just compensation, provided only the
use for which it is appropriated is of a public character.
This grant by the legislature of the right to exercise
the power is frequently by means of a general statute
operating in favor of the corporations of a particular
class which may desire to exercise the right. ^
The result of the exercise of the power in connection
.with land is to transfer to the state, or to the corporate
bod}^ to which the power is delegated by the state, aJl
or some of the rights in particular land previously
vested in a particular individual, or in a number of
individuals.
1. Randolph, Eminent Domain, main (3rd Ed.) § 367 et seq.
§S 102-106; Lewis, Eminent Do-
(2160)
§ f)62] Eminent Domain. 2161
§ 562. Rights subject to appropriation. There
may be an a]3i3ropriation of the rights of owner j^"hip in
a particular piece of land, the entire interest of the
former owner thus passing to the appropriator, or a
j-ight merely to use the land for the particular ]3ublic
purpose may be acquired. Whether there is an appro-
priation of the ownership of the land is u-i^ally a
question of the construction of the statute und'.-r which
the land is condemned, in connection with any con-
stitutional restrictions upon the power. There i< usual-
ly a presumption that the ownership, or, as it is ordi-
narily expressed, the ''fee," does not pass, and, unless
the statute explicitly authorizes the taking of a fee, or
this is necessary for the particular use, it is ordinarily
considered that a right of user only is taken by even
a municipal corporation.- So a railroad company ordi-
narily acquires by condemnation merely an easement in
the land, and, in the case of land taken for bighway
purposes, the public frequently acquires merely the right
to use the land for such purposes.
The rights of the owner of land may be iisfi'inged,
7iot by the actual taking of the land for a particular
public purpose, but by the fact that the utilization of
neighboring land for such a purpose results in the fore •
ing of water upon the former land, or the casting
thereon of stone, earth, or sewerage, thus interfering
with the owner's rights of user in the land, and to
that extent appropriating his rights in the land.*^ The
taking for ])ublic use may also involve, not a physical
invasion of the land itself, but merely the divesting of
some of the natural rig'hts incident to the owneishi)) of
land. 80, one may be divested of rights as to the flow of
a natural watercourse, of access to water, or of rights
with respect to percolating and surface water. Like-
2. Randolph, Eminent Domain, (U. S.) ICG, 20 L. Ed. 557; Eaton
§ 205; 2 Lewis, Eminent Domain, v. Boston, C. & M. R. Co., 51 N.
§§ 449-451. H. 504. See editorial notes. 19
.''.. Pumpelly v. Green Bay & llarv. Law Rev. 127, 12 Columbia
Mississippi Canal Co., 13 Wall. Law Rev. 1C5.
2162
Real I^rofekty.
[§ 5(i2
wise, one maj' be deprived of his natural right to free-
dom from dust, smoke, noise, and the like. The cases
are in very considerable conflict as to the right to
compensation for consequential injuries to land, arising
from the invasion of the natural rights of freedom from
dust, noise, or noxious odors.*
One may be entitled to compensation as having been
deprived, by the physical appropriation of another per-
son's land, of an easement which he enjoyed in such
land.^ And it has been decided that if land is subject
to an agreement restricting its use, the person for whose
benefit such restriction exists is entitled to compensa-
tion when the land is appropriated under the power
of eminent domain for a purpose which involves a
violation of the agreement.^
4. Randolph, Eminent Domain,
§ 152; 1 Lewis, Eminent Do-
main, § 235. See notes, 19 Harv.
Law Rev. 127; 10 Columbia Law
Rev. 245, 12 Id. 165.
5. 1 Lewis, Eminent Domain,
§ 223; Strickler v. City of Colo-
rado Springs. 16 Colo. 61, 25 Am.
St. Rep. 245. 26 Pac. 313; Indian-
apolis & C. G. R. Co. V. Belt Ry.
Co., 110 Ind. 5, 13, 10 N. E. 923;
Ladd V. City of Boston, 151 Mass.
585, 21 Am. St. Rep. 481, 24 N.
E. 858; Detroit Leather Specialty
Co. V. Michigan Cent. R Co., 149
Mich. 588, 113 N. W. 14; Arnold
V Hudson River R. Co., 55 N. Y.
661; Willey v. Norfolk S. R. Co.,
96 N. C. 408. 1 S. E. 446; Neff
v Pennsylvania R. Co., 202 Pa.
371, 51 Atl. 1038.
6. Long Eaton Reci-eation
Grounds Co. v. Midland Railway
(1902) 2 K. B. 574; Flynn v.
New York, W. & B. R. Co., 218
N. Y. 140. Ann. Cas. 1918B. 588.
112 N. E. 913. See Allen v. De-
troit, 167 Midi. 464. 133 N. W.
317, 36 L. R. A. N. S. 890, and
editorial note 21 Harv. Law Rev.
139. In Ladd v. Boston, 151
Mass. 585, 21 Am. St. Rep. 585,
24 N. E. 858, a like result was
obtained by regarding the re-
strictive agreement as creating a
legal easement. See also, to the
same general effect Riverbank
Imp. Co. V. Chadwick, 228 Mass.
242, 117 N. E. 244.
That there is no right of com-
pensation in such a case wa.s
decided in Doan v. Cleveland
Short Line R. Co., 92 Ohio St.
461, 112 N. E. 505, on the
ground that if the person en-
titled to the benefit of the re-
striction is allowed damages in
such case, "only a mere device
of conveyancing is necessary to
defeat entirely the rule that de-
preciation of property incidental
to a public use does not con-
stitute a taking," quoting United
States V. Certain Lands in Town
of Jamestown, R. I., 112 Fed.
622. See also Wharton v. United
§ 563] Eminent Domain. 2163
The fact that one's h\iid abuts on a highway or
street is quite generally considered to give him certain
rights of light, air, and access, interference with which
entitles him to compensation as for the taking of prop-
erty. Eights of this character, as the subject of com-
pensation, have been before referred to, as has the ques-
tion of the extent to which the previous appro ja'iation
or dedication of land for a highway authorizes its use,
without further compensation, for particular purposes,
on the ground that such purposes are of a ''highway"
character.'^
§ 563. Mode of appropriation. The statutes usually
contain explicit provisions as to the constitution of the
tribunals which are to decide the amount of compensa-
tion to be paid for the property taken. Such a tribunal
may, in the absence of any constitutional requirement
to the contrary, be composed of a jury of less than
twelve men, or of a board of commissioners.
The petition for the condemnation should fJiow the
public character of the use, and the necessity of taking
the particular land, and this latter must be accurately
described. Notice to the owner is necessary before the
compensation is assessed, but constructive notice by
publication is usually regarded as sufficient. The action
of the tribunal in fixing the amount of the compensation
is frequently subject to review by appeal or certiorari,
but is not so in the absence of a statutory provision.
In the case of an attempted taking of private j.ro|)ei-ty
under color of the right of eminent domain, vrlnch is,
however, unauthorized, on account either of the private
nature of the use, the lack of necessity for the appro-
priation, or lack of legislative authority, the owner may
usually obtain an injunction against the wrongful entry
on the land, or may sue in ejectment or trespass, and
sometimes other remedies are available.
states, 153 Fed. 876, 88 C. C. A. 7. Ante, § 417.
58, to the same effect.
2164 Real Peopertv, [§ 504
The constitutions of some states provide tlist cora-
poni^ation shall be made before the land is taken, but in
others, where there is no such provision, the leai-'^latuie
sometimes authorizes a taking of property, and leaves
the onus upon the landowner of instituting proceedings
to ascertain the compensation to be paid, and to enforce
its pa^anent. Such legislation has usually been siipport-
ed in the case of a taking by the state or a municipal
corporation, but in a number of states it has !)een held
that, in the case of the actual occupation of land by a
private corporation, the payment of the comitensation
must be in some way secured to the owner of the land
before he can thus be deprived of his property. WheTi
the taking of property does not involve the direct oc-
cupation of the land of the person claiming compensa-
tion, but merely consequential injuries thereto, the
actual payment of the compensation is naturally subs.e-
quentto the acts which constitute the taking, since th-^
])roper amount thereof was not previously ascertaina-
ble.«
§ 564. Time of passing of title. The statute is
usually construed as divesting the title of the owner of
the land taken only upon payment of the compensation
aw'arded,^ and this is necessarily the case wdien the con-
stitution provides that the compensation shall be paid
8. Randolph, Eminent Domain, Chicago, R. I. & P. R. Co., 57
§§ 231, 291, 362; 2 Lewis, Emi- Mo. 256; Flynn v. Beaverhead
nent Domain, §§ 678-681, 872. County, 49 Mont. 347, 141 Pac.
9. New Orleans & S. R. Co. v. 673; Manchester & K. R. Co. v.
Jones, 68 Ala. 48; Fox v. West- Keene, 62 N. H. 81; Erie County
ern Pac. R. Co., 31 Cal. 538; v Fridenberg, 221 N. Y. 389, 117
Village of Depue v. Bansbach, N. E. 611; Levering v. Phila-
273 111. 574, 113 N. E. 156; Per- delphia, G. & N. R. Co., 8 Watts,
kins V. Maine Cent. R. Co., 72 & S. (Pa.) 459; Stacey v. Ver-
Me. 95: Mnllan v. Belbin. 130 mont Cent. R. Co. 27 Vt. 39;
Md. 313, 100 Atl. 384; Williams Jones v. Miller.— Va.—, 23 S. E.
V. New Orleans. M. & T. R. Co., ?5; Port of Seattle v. Yesler
CO Miss. 689; Horton v. Grand Estate, 83 Wash. 166, 145 Pac:
Rapids & T. Ry. Co., 199 Mich. 209.
472, 165 N. W. 653; Provote v.
§ 564] Eminent Domain. 2165
previous to the taking. ^"^ Iii the absence of such a
constitutional provision, the statute may authorize the
taking of the land before payment. Such a statutory
provision has occasionally been construed as not trans-
ferring the title before payment of the award, but as
merely giving a right of entry and occupation of the
land as a preliminary to acquiring title by condemna-
tion.^ ^ But, in the absence of such a constitutional* jn-o-
vision as that referred to, the fact that the cons*'tution
requires a just or reasonable compensation to ho paid
has not usually been regarded as prohibiting a statute
authorizing the passing of the title before payment of
the compensation, provided there is adequate provision
for the ascertainment and collection of the comuensa-
tion.i-
By a number of decisions it is held that the owner
of the land has a lien for the amount of the unpaid
compensation, either by force of the specific statutory
provisions, or by analogy to a vendor's lien for the pur-
chase price. ^" Such decisions seem necessarily to imp]v
10. Southern Railway Co. v. Lake City Water & Electrical
Birmingham. S. & N. O. Ry. Co., Power Co. v. Salt Lake City, 24
130 Ala. 660, 31 So. 509; Stein- Utah. 282, 07 Pac. 791.
hart V. Superior Court of Men- 12. Sweet v. Rechel. 159 U.
docino County, 137 Cal. 575, 59 S 380; Haverhill Bridge Pro-
L. R. A. 404, 92 Am. St. Rep. prietors v. Essex County, 103
183, 70 Pac. 629; Asher v. Louis- Mass. 120; Appleton v. City of
ville & N. R. Co., 87 Ky. 39L Newton, 178 Mass. 59 N. E. 648;
8 S. W. 854; Redman v. Phila- Ballon v. Ballou, 78 N. Y. .325;
delphia, M. & M. R. Co., 3;^ N. Brewster v. Rogers Co., 169 N.
J. Eq. 165; Martin v. Tyler, 4 Y 73, 58 L. R. A. 495; City of
N. Dak. 278, 25 L. R. A. 838, 60 Pittsburg, v. Scott. 1 Pa. 309.
N. W. 392; Brown v. Seattle, 5 13. Organ v. Memphis & L.
Wash. 35. See 10 Columbia Law R. R. Co., 51 Ark. 235. 11 S. W.
Rev. at p. 245. 96; New Bedford R. Co. v. Old
11'. Kennedy v. Indianapolis, Colony R. Co., 120 Mass. 397:
103 U. S. 599, 103 L. Ed. 550; Drury v. Midland R. Co., 127
Cherokee Nation v. Southern Mass. 571; Provolt v. Chicago,
Kansas R. Co., 135 U. S. 641, R. I. & P. R. Co., 69 Mo. 6:^3;
34 L. Ed. 295; Fox v. Western Frelinehuysen v. Central R. Co.
Pac. R. Co., 31 Cal. 538; Cush- of New Jersey, 28 N. J. Eq. 388;
man v. Smith, 34 Me. 247; Salt Jn re New York, W. S. & B. Ry.
2166 Eeal Pkopebty. [§ 565
that the ownership of the land passes by the condemna-
tion proceeding even before payment of the compensa-
tion, since one cannot usually have a lien on his own
land.
§ 565. Cessation of public use. When merely a
right of user for the benefit of the public is take'U, and
subsequently such user ceases, the owner of the land
has it free from the public burden.^* Logically, in
such a case, the corporation, which acquired the right
of user for one public purpose, having abandoned that
mode of user, could not utilize the land, or authorize it
to be utilized, for a different public purpose, without
payment of the value of the right of user for this lat-
ter purpose. ^^ There appears, however, to be a disposi-
tion occasionally to allow such change of user subject
to the payment to the owner of the land of the amount
by which the burden of the new user exceeds that of
the original user.^''' If not merely a right of user, but
the "fee," as it is expressed, is taken, that is, if the
ownership of the land is acquired for a public purpose,
under the power of eminent domain, the fact that it
ceases to be used for that purpose does not ordinarily
affect the title, and the corporation which acquired the
property may utilize it for other purposes, or may dis
pose of it, as may be most to its advantage. ^'^ Tt may
Co., 94 N. Y. 287: Lycoming Gas Malone v. Toledo, 28 Ohio St.
& Water Co. v. Moyer. 99 Pa. 643; Lucas v. Ashland Light,
St. 615; Gillison v. Savannah & Mill & Power Co., 92 Neb. 550,
C. R. Co., 7 Rich. (S. C.) 173; 138 N. W. 761.
Kittell V. Missisquoi R. Co., 56 17. Frank v. Evansville, & I.
Vt. 96; 2 Lewis, Eminent Do- R. Co., Ill Ind. 132, 12 N. E.
main, § 885. 105; Sweet v. Buffalo, N. Y. &
14. See Heard v. Brooklyn, 60 P. Ry. Co., 79 N. Y. 293; Eld-
N. Y. 242; Pittsburgh & Lake ridge v. City of Binghamton,
Erie R. Co. v. Bruce, 102 Pa. 120 N. Y. 309, 24 N. E. 462;
23. Currie v. New York Transit Co.,
15. See editorial note 22 Harv. 66 N. J. Eq. 313, 58 Atl. 308;
Law Rev. 439. Malone v. Toledo, 28 Ohio St.
16. See Hatch v. Cincinnati & 643; State v. Griftner, 61 Ohio
Indiana R. Co., 18 Ohio St. 92; St. 201. 55 N. E. 612; Wyoming
§ 565]
Eminent Domain
2167
conceivably occur, Jiowever, that by force of the statute
under which the land is taken for public use, a deter-
minable fee only is acquired by tlie corporation v^xercis-
ing the right of condemnation, limited in effect to .^ndure
only so long as the land is utilized for the ^articular
purpose. ^^
Coal & Transport Co. v. Price.
81 Pa. St. 1.56; Chamberlain v.
Northeastern R. Co., 41 S. C.
399, 44 Am. St. Rep. 717. 25 L.
R. A. 139, 19 S. E. 743, 996;
Seattle Land & Imp. Co. v. Seat-
tle, 37 Wash. 274, 79 Pac. 780;
Hays V. Walnut Creek Oil Co..
75 W. Va. 263, Ann. Cas. 1918A.
802, 83 S. E. 900.
18. Lithgow V. Pearson, 28
Colo. App. 70, 135 Pac. 759; Ben-
ham V. Potter, 52 Conn. 248:
Chambers v. Great Northern
Power Co., 100 Minn. 214. 110
N. W. 1128; Chicago & E. I. R.
Co. V. Clapp, 201 111. 418, 66 N.
E. 223: MeCombs v. Stewart, 40
Ohio St. 647; Lazarus v. Morris,
212 Pa. St. 128, 61 Atl. 815;
Canadian River R. Co. v. Wichita
Falls & N. W. Ry. Co., — Okla.
— , 166 Pac. 163.
CHAPTEK XXXI.
PRIORITIES, NOTICE AND RECORDING.
§ 566. Priorities apart from recording acts.
(a) As between legal interests.
(b) As between legal and equitable interests.
(c) As between equitable interests.
§ 567. The recording acts.
(a) General considerations.
(b) Instruments capable of record.
(c) Unauthorized record of instrument.
(d) Instruments not in chain of title.
(e) Instrumsnts executed prior to acquisition of
title,
(f) Instruments executed after apparently parting
with title,
(g) Instruments recorded after parting with title,
(h) What constitutes recording,
(i) Time allowed for recording,
(j) Mistakes by recording officer.
(k) Index to records.
(1) Persons affected with notice by record,
(m) Persons entitled to assert failure to record.
§ 568. Notice as substitute, for recording.
569. Information putting on inquiry.
570. Notice to agent.
571. Notice from possession.
(a) General considerations.
(b) Character of the possession.
(c) Possession consistent with record title.
(d) Cotenant in possession.
(e) Joint possession or occupation.
(f) Possession by tenant under lease.
(g) Continued possession by grantor.
§ 571. Notice from statements in instruments of title.
573. Actual and constructive notice.
574. Purchasers for value.
(a) Valuable consideration,
(b) Pre-existing debt.
(2168)
§ 566] Priorities and Eecording. 2169
(c) Adequacy of consideration.
(d) Notice before payment.
(e) Notice after part payment.
(f) Payment by note.
(g) Payment without acquiring legal title.
§ 575. Purchasers with notice from purcliasers without notice.
576. Purchasers without notice from purchasers with notice.
577. Purchasers at execution sales.
578. Burden of proof.
579. Lis pendens.
§ 586. Priorities apart from recording acts (a)
As between legal interests. "At common law, the title
of a purchaser ordinarily depends, first, upon the titlL'
of his vendor, secondly, upon whether the vendor has
transferred his title to the purchaser. If the vendor
had no title, or if his title was defective, it is not
material that the purchaser paid the full value of the
property, and supposed he was acquiring a jierfeot
title. "^ Were the rule otherwise, it is evideht, any
owner of property could be divested of his rignts by a
nominal sale of the property to an innocent purchaser
by one having no rights therein.
Applying this rule, it follows that if B claiming
under a purported conveyance from A, has no title be-
cause the signature on such conveyance was forged,
one claiming under a conveyance from B can assert
no title, even though he paid value under the supposi-
tion that he was acquiring title by B 's conveyance ■
1. Langdell, E«]uity Pleading, sada, 54 Ga. 74: John v. Hat-
§ 139. To the same effect, see field, 84 Ind. 75 •, Vanhoose v.
Bispham, Equity, § 261; 2 White Fairchild, 145 Ky. 700, 141 S. W.
6 Tudor's Leading Cas. in Eq. 75; Plattsmouth First Nat. Bank
(4th Am. Ed.) Judges' Hares v. Gibson, GO Neb. 767, 84 N. W.
notes, at p. 46; Vattier v. Hinde, 259; McGregor v. Putney, 75 N.
7 Pet. (U. S.) 252, 8 L. Ed. 675; H. 113, 71 Atl. 226; Smith v.
Iowa Land & Trust Co. v. U. Markland, 223 Pa. 605, 72 Atl.
S. 217 Fed. 11, 133 C. C. A. 1: 1047; Jarman v. Farley. 7 Lea
United States v. Southern Co., 18 (Tenn.) 141; Mortimer v. J.u-k-
Fed. 273; Winters v. Powell. 180 son, — Tex. Civ. App. — , 155 S.
Ala. 425, 61 So. 96; Bird v. Jones, W. 341.
37 Ark. 195; Comptcni v. Cas- 2. Sampeyreae v. United States,
2170 - Real Property. [§ 566
Likewise, since a conveyance which has not been de-
livered is a nullity, one claiming under the grantee
therein, though a purchaser for value without notice,
cannot, apart from estoppel, assert any title as against
the original grantor named," ^ and the same principle
has been applied in connection with a conveyance de-
livered in escrow, which was handed by the depositary
to the grantee before the satisfaction of the condition.-^
Since, as just indicated, one who has no title can-
not transfer title to another, one who has transferred
his legal estate to one person cannot thereafter detract
from the effectiveness of such transfer by undertaking
to transfer it to another. And it is immaterial that the
later grantee paj^s value under the supposition that ho
is acquiring the property, that is, that he is a 'bona fide
purchaser for value." And as one who has divested
himself of his title cannot convey that title to another,
so one claiming under him cannot do so. In other words,
apart from statute, transfers of the legal title to land
rank, between themselves, according to priority in
time. The very considerable departure from this rule,
resulting from the statutory provisions for the record-
ing of conveyances, will be subsequently discussed
(b) As between legal and equitable interests.
As between a legal and an equitable interest in the
same property, courts of equity have favored the former,
and have in effect regarded the holder of the legal title
as the actual owner, against whom an equitable in-
terest can be asserted only under particular conditions.^
7 Pet. (U. S.) 222, 8 L. Ed. 665; 3-4. Ante, § 461. And see I-co
Bird V. Jones, 37 Ark. 195; Mc- v. Parker, 171 N. C. 144, 88 S.
Ginn v. Tobey, 62 Mich. 252, 4 E. 217.
Am. St. Rep. 848, 28 N. W. 818; 5. Ante, § 462.
Gross V. Watts, 206 Mo. 373, 121 6. The clearest elementary
Am. St. Rep. 662, 104 S. W. 30: treatment of this subject is per-
Lee V. Parker, 171 N. C. 144, 88 haps to be found in Prof. Mait-
S. E. 217; Smith v. Markland, land's Lectures in Equity, p. 120
223 Pa. 605, 132 Am. St. Rep. ci scg.
747, 72 Atl. 1047.
§ 566]
Pkiorities axd Recording.
2171
As between a legal title to property aud an equit-
able interest therein or claim thereto, the legal title, if
earlier in point of time, takes priority, that is, as
one who has transferred his legal title cannct affect
his grantee by subsequently attempting to transfer the
legal title to another, so he cannot affect his grantee by
subsequently attempting to create an equitable interest
in another, even though such other pays value without
notice of the prior transfer of the legal title."
If the equitable interest or claim is first created,
the question whether one who subsequently acquires the
legal title takes free from the equitable interest or claiui,
will ordinarily depend on whether he is a purchaser for
value without notice thereof, courts of equity refusing
to enforce the prior equity as against such a purchaser.*
7. That the defense of bona
fide purchase for value is not
available against a prior legal
title see Williams v. Lambe, 3
Bro. C. C. 264; Finch v. Shaw, 5
H. L. Cas. 905; Collins v. Archer,
l.Russ. & My. 284; Duncan Town-
site Co. V. Lane, 245 U. S. 308,
62 L. Ed. 309; Hurst v. McNeil,
1 Wash. (U. S.) 70; Curts v.
Cisna. 7 Biss. (U. S.) 260; United
States V. Southern Co., 18 Fed.
273; Hooper v. Savannah & M.
R. Co., 69 Ala. 529; Daniel v.
Hollingshead, 16 Ga. 190; Jenkins
v. Bodley, Smedes & M. Ch.
(Miss.) 338; Jones v. Zollicoffer,
4 N. C. 645, N. C. Term R. 212.
7 Am. Dec. 708; Elstner v. Fife.
32 Ohio St. 358; Blake v. Hey-
ward. Bail Eq. (S. C.) 220;
Brown v. Wood, 6 Rich. Eq. (S.
C.) 155.
The defense of bona fide pur-
chaser for value was, however,
available, under the former
chancery practice, as against a
prior legal title, when the plain-
tiff was invoking the auxiliary,
as distinct from the concurrent
or exclusive, jurisdiction of a
court of equity. Langdell, Equity
Pleading, § 144; White & Tudor's
Leading Cas. in Eq. (8th Ed.)
168, 172; 13 Halsbury's Laws of
England, 77.
8. See, e. g.. Lea v. Polk
County Copper Co.. 21 How. (U.
S.) 493, 16 L. Ed. 203; Dean v.
Roberts, 182 Ala. 221, 62 So. 44;
Turner v. Wilkinson, 72 Ala.
367; Myers v. Berven, 166 Cal.
484, 137 Pac. 260; Mays v. Red-
man, 134 Ga. 870, 68 S. E. 738;
Pitts V. Cable, 44 111. 103: Walker
V. Cameron, 78 Iowa. 315. 43 N.
W. 199; Winlock v. Munday, 156
Ky. 806, 162 S. W. 76; Haas v.
Fontenot, 1.12 La. 812. 61 So.
831: Beidler v. City Bank of
Battle Creek, 172 Mich. 381, 137
N. W. 717; Conn v. Boutwell,
101 Miss. 353. 58 So. 105: Har-
rington v. Erie Cotinty Sav Bank.
101 N. Y. 2r.7. 4 N. E. 346; Fles-
ner v. Cooper, — Okla. — , 134 Pac.
2172
Real Peoperty.
[§ 566
This principle, that equitable relief will be denied as
against a purchaser for value and without notice, who
has acquired the legal title, is fundamental, the court
in effect refusing to deprive him of his right f)f prop-
erty in such case because it is not unconscientious for
him to retain it. On the other hand eciuity regards as
unconscientious the retention of the right of property,
as against a prior equity, by one who acquired it witli
notice of the equity, or without paying value, and will
give relief against him accordingly/^
The rule that a purchaser for value without notice
will be protected against a prior equity, and its com-
plementary rule, that a purchaser with notice or not for
value will not be protected, applies regardless of the
character of the equity, whether, for instance, it be an
express trust, an implied trust, a right to set aside a
conveyance, a right to call for a conveyance, a right to
reform a conveyance, an equity of redemption, or an
equitable lien.
379; Elwert v. Reid, 70 Ore. 318,
139 Pac. 918, 141 Pac. 540; Bigley
■V. Jones, 114 Pa. St. 510, 7 Atl.
54; High v. Batte, 10 Yerg.
(Tenn.) 335; Hennessy v. Blair,
107 Tex. 39. 173 S. W. 871; Ver-
mont Marble Co. v. Mead, 85 Vt.
20, 80 Atl. 852; Croup v. De
Moss, 78 Wash. 128, 138 Pac.
fi71; Cresap v. Brown, 69 W. Va.
658, 72 S. E. 751.
9. See e. g.. Gilley v. Denman,
185 Ala. 561, 64 So. 97; Gilbert
V. Sleeper, 71 Cal. 290, 12 Pac.
172;' New York, New Haven &
H R. Co. V. Russell, 83 Conn.
581, 78 Atl. 324; Gamble v. Hamil-
ton, 31 Fla. 401, 12 So. 229;
Finch V. Beal, 68 Ga. 594;
Mason v. Mullahy, 145 111. 383,
34 N. E. 36; Walte-r v. Cox, 25
Ind. 271; Burt Zaiser Co v. Fin-
negan, 161 loAva, 631, 143 N. W.
486; Price v. Bassett, 163 Mass.
598, 47 N. E. 243; Converse v.
Blumrich, 14 Mich. 109, .90 Am.
Dec. 230; Marshall v. Hill, 246
Mo. 1, 151 S. W. 131; Veith v.
McMurtry, 26 Neb. 341, 42 Si. W
6; Brinton v. Scull, 55 N. J. Eq.
747, 35 Atl. 843; Bellamy v.
Andrews, 151 N. C. 256, 65 S. E.
963; Horgan v. Russell, 24 N.
D. 490, 43 L. R. A. (N. S.) 1150,
140 N. W. 99; Taylor v. Taylor,
69 Ore. 541, 139 Pac. 852; Duff
V. McDonough, 155 Pa. St. 10,
25 Atl. 608; Bristow v. Rosen-
burg, 45 S. C. 614, 23 S. E. 957;
Sautelle v. Carlisle, 13 Lea
(Tenn.) 391; Ayres v. Jack, 7
Utah, 249, 26 Pac. 300; Curtis
V. Lunn, 6 Munf. (Va.) 42;
Crowley v. Byrne, 71 Wash. 444,
129 Pac. 113; Parker v. Brast,
45 W. Va. 339, 32 S. E. 269.
§ 566] Priorities and Eecoedixg. 21(3
Claimant under quitclaim deed. The question
whether one chiiming under a quitehdiii deed may hold
as a bona fide purchaser for value as agai^ist prioi*
equities, not based on the recording act, has occacionally
been adjudicated adversely to such claimant. •'''' SucJi
a question is for the most part analogous to the question
hereafter discussed,^"^ as to the rights of such claimant
as against an unrecorded conveyance, but when only
prior equities are outstanding it is somewhat difficulty
to construe the conveyance, even though in ih<^ form
of a quitclaim deed, as intended to convey the legal title
subject to such outstanding equities.''^ Consequently,
there might be stronger reason for protecting the
grantee under such a deed as against a prior equity;
than as against a prior unrecorded deed.
Subsequent acquisition of legal title. Occa-
sionally it happens that a purchaser for value does not
acquire the legal title at the time of his purcliase, that
is, at the time of his payment of the consideration, but
acquires it at a later time. He is in such ca^o in the
position of the holder of an equity acquiring the legal
title. If such subsequent acquisition of the legal title
is effected by him without notice on his part of a
9a. Derrick v. Brown, 66 Ala. recording acts, he cannot tlius
162; Hannan v. Seidentopf, 113 claim as against an equity which
Iowa, 658, 86 N. W. 44; Gibson could not be made the subject
V Morris State Bank, 49 Mont. of record, such as a right to
00, 140 Pac. 76; Hudman v. set aside the deed to his grantor
Henderson, 58 Tex. Civ. App. 358, for fraud. Hendricks v. Callo-
124 S. W. 186. way, 211 Mo. 536, 111 S. W. 60;
9b. Post, S 567(m), notes 14- Starr v. Bartz, 219 Mo. 47, 117
23. S. W. 1125. If he is to be re-
9c. See editorial note, 10 Co- garded, however, as an innocent
lumbia Law Rev. at p. 371. purchaser for the purpose of pro-
In Missouri the vie\y has been tection against a prior unre-
adopted that, while a purchaser corded conveyance, he should
holding under a quitclaim deed properly, it would seem, be so
may claim as against a prior regarded for tl}e purpose of pro-
unrecorded deed as being within tection against prior e'luitics.
the protection afforded by Die under the general rule.
2 R. P.— (JL!
2174
Real Pkopebty.
[^ 566
prior equity in favor of another, it operates to protect
him as against such equity.^'' Indeed, by perhaps the
weight of authority, the holder of a later equity, if a
bona fide purchaser thereof for value, may protect him-
self as against an earlier equity by acquiring the legal
title, even though he does so after he has notice of the
earlier equity, and merely for the purpose of securing
priority.^ 1 So it is well settled in England that a third
mortgagee, who has only an equitable title subsequent
to that of the second mortgagee, may, by acquiring the
legal title of the first mortgagee, secure priority over
10. 13 Halsbury's Laws of
England 83; Bailey v. Barnes
(1894) 1 Ch. 25; Taylor v. Rus-
sell (1892) App. Cas. 244; Flagg
V. Mann, 2 Sumn. (U. S.) 486;
United States v. Detroit Timber
6 Lumber Co., 131 Fed. 668;
People V. Swift, 96 Cal. 165, 31
Pac. 16; Carlisle v. Jumper, 81
Ky. 282; Flynt v. Hubbard, 57
Miss. 471; Newton v. McLean, 41
Barb. (N. Y.) 285; Wilson v.
Western North Carolina Land
Co., 77 N. C. 445; Oviatt v.
Brown, 14 Ohio 285, 45 Am. Dec.
539; Perkins v. Hays, 3 Tenn.
163, 5 Am. Dec. 680; Hill v.
Moore, 62 Tex. 610.
11. Blackwood v. London Char-
tered Bank of Australia, L. R.
5 Prlv. Coun. App. Ill; Bailey
V. Barnes (1898) 1 Ch. 25;
Taylor v. Russell (1892) App.
Cas. 244; Fitzsimmons v. Ogden,
7 Cranch. (U. S.) 2, 3 L. Ed.
249; Bayley v. Greenleaf, 7 Wheat.
(U. S.) 46, 5 L. Ed. 393; United
States V. Detroit Timber & Lum-
ber Co., 131 Fed. 668 {dictum);
Wheaton v. Dyer, 15 Conn. 307;
McNary v. Southworth, 58 111.
473; Campbell v. Brackenridge,
8 Blackf. (Ind.) 471; Weston v.
Dunlap, 50 Iowa, 185; Carroll v.
Johnston, 55 N. C. 120; Gibler
V. Trimble, 14 Ohio, 323; Dueber
Watch Case Mfg. Co. v. Dough-
erty, 62 Ohio St. 589, 57 " N. E.
455; ZoUmau v. Moore, 21 Graft.
(Va.) 313; Hoult v. Donahue, 21
W. Va. 294. See Smith Paper
Co. V. Servin, 130 Mass. 511.
But that the holder of the
later equity cannot thus protect
himself after notice of the earlier
equity, see Fash v. Ravesies,' 32
Ala. 451; LouisviUe & N. R. Co.
V. Boykin, 76 Ala. 560; Paul v.
McPherrin, 48 Colo. 522, 21 Ann.
Cas. 460. Ill Pac. 59 (dictum);
Corn V. Sims, 3 Mete. (Ky.) 391;
Cline V. Osborn, 24 Ky. L. Rep.
511, 68 S. W. 1083; Wing v. Mc-
Dowell, Walk. Ch. (Mich.) 175;
Kilcrease v. Lum, 36 Miss. 569;
Doe V. Doe. 37 N. H. 268; Dean
V. Anderson. .14 N. J. Eq. 496;
Grimstone v. Carter. 3 Paige (N.
Y.) 421, 24 Am. Dec. 230; Golds-
borough y. Turner, 67 N. C. 412;
Bush V. Bush, 3 Strobh. Eq. (S.
C.) 131, 51 Am. Dec. 675; Pillow
V. Shannon, 3 Yerg. (Tenn.) 508
(semble) ; Hoover v. Donally, 3
Hen. & M. (Va.) 316 (semble).
§ 566]
Peiorities and Recording.
2175
the second mortgagee/^'' The riglit of a bona fide pui-
chaser thus to protect himself by the subsequent acquisi-
tion of the legal title is, however, subject to a qualifica-
tion, to the effect that such acquisition must not iiivolve
a breach of trust, as regards the holder of the prior
equity, upon the part of the person from whom the
legal title is acquired.^^ AVhether the trust mast be an
express trust, and whether the trustee or the purchaser
must have notice of the trust, appears not to be definite-
ly settled.!''
■ (c) As between equitable interests. As be-
tween interests or claims of a purely equitable character,
that is, enforceable in equity alone, the rule, as generally
stated, is that between equal equities priority of time
will prevail, that is, they will rank according to their
time of accrual.!'* And the fact that the later ecjuity is
acquired without notice of the earlier equity i? ordi-
narilv immaterial in this connection. ^"^ For instance.
lla. Post, § 639.
12. Saunders v. Dehew, 2 Vern.
271; Pilclier v. Rawlins, L. R.
7 Ch. 259; Bates v. Johnson,
Johns. (N. Y.) 304; Taylor v.
London & County Bank (1901) 2
Ch. 231; Mumford v. Stohwasser,
L. R. 18 Eq. 56.5; Central Trust
Co. V. West India Improvement
Co. 169 N. Y. 314, 62 N. E. 387.
13. See the discussion of the
English cases bearing on the sub-
ject in White & Tudor's Leading
Cases, (8th Ed.) vol. 2, at p. 128.
14. Snell, Equity (16th Ed.)
10; 2 Pomeroy, Eq Jur. §§ 683,
718; Louisville & Nashville R.
Co. v. Boykin, 76 Ala. .560;
Carlisle v. Jumper, 81 Ky. 282;
Wailes v. Coopor, 24 Miss. 208;
Dedeaux v. Cuevas, 107 Miss. 7,
64 So. 844; Boskowitz v. Davis,
12 Nev. 466; Wilkes v. Harper,
2 Barb. Ch. (N. Y.) 338; Wil-
liams V. Lewis, 158 N. C. 571, 74
S. E. 17; Dueber Watch Case
Mfg. Co. V. Dougherty, 62 Ohio
St. 589, 57 N. E. 455; Henry v.
Black, 213 Pa. 620, ^3 Atl. 250;
454; Lowther Oil Co. v. Miller
Sibley Oil Co., 53 W. Va. 501, 97
Am. St. Rep. 1027, 44 S. E. 433.
Briscoe v. Ashby, 24 Gratt. (Va.)
"Every equitable title is in-
complete on its face. It is in
truth nothing more than a title
to go into chancery to have the
legal estate conveyed, and there-
fore every purchaser of a mere
equity takes it subject to every
clog that may lie on it, whether
he has had notice of it or not."
Chew V. Barnett, 11 Serg. & R.
(Pa.) 389, per Gibson, J.
15. hi re Vernon Ewens &
Co., 33 Ch. Div. 402; Boone v.
Chiles, 10 Pet. (U. S.) 177, 9 L.
Ed. 388; Curts v. Cisna, 7 Biss.
2176 Keal Peopeety, [<S, 566
if one liaving an equitable interest, the legal title out-
standing in another, mortgages his interest, aiui sub
sequently undertalves to convey his whole interest to a
purchaser, the purchaser can acquire only such jitterest
as is left in the grantor, that is, the equities of the mort
gagee and purchaser are ranked according to time."'''
So if a trustee, having the legal title, sells, without
conveying the legal title, to another, the equit}^ of the
cestui que trust against him, being prior in time to that
of the purchaser, will be preferred.'" But this general
rule of protection for the earlier equity applies • only
when the equities are, in other resjiects than 'hat of
time, equal one to the other, and such equality is lacking
if the holder of the earlier equity, by his fraudulent oi
negligent statements or conduct, misled the later in-
cumbrancer.'^ Thus the holder of a prior equity, who
expressly disclaimed any such equity, and by such dis-
claimer induced another to pay value for an equitable
interest in the property, could not assert his equity as
against the later equity, the former equity being, by
reason of his misconduct, inferior to the latter.*'-' And
it is upon such a theory that the equity of a vendor's
lien has occasionally been postponed to the subsequent
(U. S.) 260; Overan v. Taylor, 733; Lowther Oil Co. v. Miller-
99 Ala. 12, 11 So. 738; Taylor Sibley OU Co., 53 W. Va. 501, 97
V. Weston, 77 Cal. 534, 20 Pac. Am. St. Rep. 1027, 44 S. E. 433.
62; Johnson v. Hayard, 74 Neb. 16. Phillips v. Phillips, 4 Do
157, 5 L. R. A. (N. S.) 112, i2 G., F. & J. 208, per Lord W^c.-^t-
Ann. Cas. 800, 103 N. W. 1058, bury.
107 N. W. 384; Jenkinson v. New 17. Pinkett v. Wright, 2 Hare,
York Finance Co., 79 N. J. Eq. 120.
247, 82 Atl. 36; Peabody v. Fen- 18. Rice v. Rice, 2 Drew. 73;
ton, 3 Barb. Ch. (N. C.) 451; Heyder v. Excelsior Building &
Bonelli v. Burton, 61 Ore. 429, Loan Ass'n, 42 N. J. Eq. 403, 59
123 Pac. 37; LaBelle Coke Co. v. Am. Rep. 49, 8 Atl. 310; Hume
Smith, 221 Pa. 642, 70 Atl. 894; v. Dixon, 37 Ohio St. 66; Wilson
Craig V. Leiper, 2 Yerg. (Tenn.) v. Hicks, 40 Ohio St. 418; St.
193, 24 Am. Rep. 479; National Johnsbury v. MorriU. 55 Vt. 165.
Oil & Pipe Line Co. v. Teel, 95 19. 2 Pomeroy, Eq. .Jur. §§ 686,
Tex. 586, 68 S. W. 979; Wilson 779-782.
V. Morrell, 5 Wash. 654, 32 Pac.
§ 566] Petoeities axd Recording. 2177
equity of one who purchased in ignorance of the li^n, the
conduct of the lienor in failing to take a mortgage to
secure his claim, or otherwise to make the existence oi
the lien a matter of record, being regarded as involving
an element of negligence, and as consequently snaking
his equity inferior to that of the subsequent purchaser.^'*
In England such postponement of the earlier to the
later equity quite frequently occurs by reason of the
negligent conduct of the holder of the prior equity in
not obtaining the title deeds or in not retaining posses-
sion of them.-^ This can obviously not happen in thi"?
country, where the possession or non possession of the
title deeds possesses no significance. Such c?ses of
postponement of the earlier to the later equity by
reason of the misleading conduct of the holder of the
earlier equity might usually, if not invariably, ir seems,
be regarded as applications of a doctrine analogous to
that of estoppel in pais?'-
The general rule being, as above stated, that as
between equal equitable interests or claims the one
prior in time will prevail, a qualification of this rule has
been suggested by high authority, to the eliect that the
equities should be against the same person, and that
if against different persons, the subsequent equity
should be protected in favor of one who acquires it
bona fide for value, just as if it were a legal title. In
other words, that, as a purchaser for value of a legal
title, without notice of an equity in favor of another,
takes free of the equity, so a purchaser for valu'^ of an
equitable title, without notice of a ''subequity" in
favor of another, should take free from such sub-
equity.-^^'^^ Under the view suggested, for instance, if
20. Bayley v. Greenleaf, 7 Leading Cases in Equity (8th
Wheat. (U. S.) 46, 57, 5 L. Ed. Ed.) 104 et seq.
39:v, Hume v. Dixon, 37 Ohio St. 22. See Mr.' Ewart's ingenious
66; Campbell v. Sidwell, 61 Ohio and suggestive discussion, in his
St. 179, 55 N. E. 609. See Cox work on Estoppel, pp. 251-291.
V. Romine, 9 Gratt. (Va.) 27. 23-24. Professor J. B. Ames,
21. See 2 White & Tudor's in 1 Harv. Law Rev. at p. 8,
2178 Beal Property. [^ 566
A, having an eqnitable interest, such as an equity of
redemption, or the beneficial interest under a trust,
agrees to hold his interest for the benefit of B, or, as
having acquired such interest from B by fraud, holds it
under a constructive trust for B, and A subsequently
conveys his equitable interest to a purchaser for value
without notice of B's claim, the latter would take free
from such claim. In such a case the personal right in
favor of B against A to enforce a trust is not in its
nature exclusive of a like personal right in favor of the
purchaser against the legal owner, and consequently
there would seem to be no reason that the former,
though earlier in time, should exclude the latter, though
such rights against the same person in regard to the
same land are necessarily exclusive one of the other, and
consequently it is proper to prefer the one which was
first acquired. This view, it has been rem.arked,^^ con-
forms in principle with the doctrine, more generally
accepted in this country, that the assignee of a chose in
action, for value and without notice of equities in a
third person, takes free of such equities.^*^ It has,
however, been criticized, and is probably contrary to the
weight of judicial authority.-'^
It has been not infrequently stated that if the hold-
er of the subsequent equity, having acquired it for
value and without notice of the prior equity, has the
"best right" to call for the legal estate, he is to be pro-
tected as if he had actually acquired such estate.^*
"It has accordingly been held that if a purchaser for
value takes an equitable title only, or omits to gt-t in an
Lectures on Legal History at p. Enforcement of Decrees in Equity,
263. See Editorial notes, 12 Co- 116-124, 144.
lumbia Law Rev., pp. 155-158; 28. Wilkes v. Bodington, 2
24 Harv. Law Rev. at p. 490. Vern. 599; Wilmot v. Pike, 5
25. Editorial note, 24 Harv. Hare, 14; Hume v. Dixon, 37 Ohio
Law Rev. at p. 491. St. 66; Dueber Watch Case Mfg.
26. Post, § 630(b). Co. v. Dougherty, 62 Ohio St.
27. See article by Professor 589, 596, 57 N. E. 455; St. Johns-
Thaddeus Kenneson, 23 Yale Law bury v. Morrill, 55 Vt. 165; Pres-
Journ. at p. 205 et seq.; Huston, ton v. Nash, 76 Va. 1.
§ 566] Priorities and Recording. 2179
outstanding legal estate, and a subsequent purchaser
for value without notice procures, at the time of his
purchase, the person in whom the legal title is vested
to declare himself a trustee for him, or even to join as
party in a conveyance of the equitable intere.-«^t, (al-
though he may not formally convey or declare a trust
of the legal estate), still the subsequent purchaser
gains priority. "^'^ So a bona fide purchaser is pro-
tected as against a prior equity, if he has the legal
title conveyed to another instead of to himself, he having
in such case the right to call for a conveyan.'o of the
legal title.''^ Under what other circumstances this doe
trine of the ''best right" might become applicable in
favor of the holder of the subsequent equity does not
clearly appear from the cases.^^ In one case in this
country it was regarded as protecting a subsequent pur-
chaser as against a prior equity by reason of tiie fact
that such purchaser had a right, under his coTitract,
to demand a conveyance.^^
Even though a bona fide purchaser has not acquired
the legal title, he stands in the same position a? if ho
had done so, as regards a prior equity, if he has- power
to acquire the legal title by performing some act, without
ai'y action on the part of the holder of such title, as,
for instance, when he is given an ex])ress and irrevoca-
ble power to transfer the property to himself or
another.''^
29. Stirling, L. J., in Taylor 426.
V. London and County Banking 31. See 2 White & Tudor,
Company (1901) 2 Ch. at p. Leading Cases in Eq. (8th Ed.)
261. at p. 151.
30. Ames, Cases on Trusts 32. Preston v. Nash, 76 Va. 1.
(2nd Ed.) 286; Willoughby v. In Buck v. Winn. 11 R Men.
Willoughby, 1 Term Rep. 76:^.; (Ky.) 323, it was held that a
Kinicott v. Board of Snp'rs of purchaser at sheriff's sale, before
Wayne County, 16 Wall. (U. S.) procuring a deed, had such an
452, 21 L. Ed. 319; Stokes v. "inchoate legal title" that he was
Riley, 121 111. 166, 11 N. E. 877. entitled to protection as a bona
Compare, Seacoast R. Co. v. fjilc purchaser.
Wood, 65 N. J. Eq. 530, 56 Atl. 33. Dodds v. Hills, 2 H. & M.
337, criticized 17 Harv. Law Rev. 297. See Brewster v. Sime, 42
2180 Real Peopeety. [§ 567
It has been decided, in one state, that as between
equal equities, if the holder of the later equity was a
bona fide purchaser for value and has actually acquired
possession as such and made improvements, he will bo
protected as against the prior equity.^"^ Such a doc
trine does not appear to be generally recognized."-"^
§ 567. The recording acts (a) General consider-
ations. The rule first above referred to, that, as between
conveyances of the legal title, the first in time nnist pre-
vail, has been entirely changed by the recording nets,
which exist in every state, and wdiich provide in etfeet
that a conveyance or mortgage of land, and frequently
any other instrument affecting land, shall not, as against
a subsequent conveyance or mortgage in favor of a
purchaser for value, be valid, unless it is fiWl for
record in a public record office. The requirement of
record has almost invariably been regarded as intendoa
for the protection of subsequent purchasers only, so that
the failure to record the instrument in no way aii"e?ts the
passing of title as between the ]:)arties thereto.-^'' The
Cal. i;^,9; Professor Ames' Essay, Cas. 1916C, 943, 169 S. W. 253;
1 Harv. Law Rev. at p. 5, Lee- Warnock v. Harlow, 96 Cal. 298,
tures on Legal History, 257. 31 Am. St. Rep. 209, 31 Pac. 106;
34. St. .Johnsbury v. Morrill. Licata v. De Corte, 50 Fla. 5G?.,
55 Vt. 165. See United States 39 So. 58; Lytle v. Black, 107 Ga.
V. Detroit Timber & Lumber Co., 386, 33 S. E. 414: Gibson v.
131 Fed. 668, 678. Brown, 214 111. 330, 73 N. E. 578:
35. In PhiHips v. Phillips, 4 Shirk v. Thomas, 121 Ind 147. 16
De G. F. & J. 208, which is Am. St. Rep. 381, 22 N. E. 976;
usually referred to as the leading Smith v. Noble, 174 Ky. 151, 191
case on the law of bona fide S. W. 641, Willet v. Andrews, 106
purchaser. Lord Westbury dis- La. 319, 30 So. 883; Lawry v. Wil-
tinctly overruled the argument liams, 13 Me. 281; Palmer v.
that the possession of the holder Paine, 9 Gray (Mass.) 56; Van
of the subsequent equity, the de- Husan v. Heames, 96 Mich. 504
fendant, gave him any protection 56 N. W. 22; McCamant v. Pat
as against the prior equity. terson, 39 Mo. 100; Ames v
And see editorial note, 11 Colum- Robert, 17 N. M. 609, 131 Pac
bia Law Rev. 555. 994; Wood v. Chap in, 13 N. Y
36. Western Tie & Timber Co. 509, 67 Am. Dec. 62; McBrayer
V. Campbell, 113 Ark. 570, Ann. v Harrill, 152 N. C. 712, 68 S
§ 567]
Peioeities and Eecordtxg.
2IS1
grantor merely retains, by force of the statute, a power
to defeat the conveyance, if not recorded, by a subse-
quent conveyance to another.^'
The construction placed by the courts ujvju the
recording acts has been in effect to protect a subsequent
purchaser as against a prior instrument, if he pays
value in ignorance of such instrument, and to n-ake the
record of an instrument in accordance with the act
equivalent to notice to the subsequent purchase]- of the
existence and contents of the instrument, irrespective of
whether he actually examines the records so as to ob-
tain such information.^ '^'^ And the record is notice not
only of the instrument and of the facts stated tlierein,
but also of any other matters as to which the necessity
of an inquiry is suggested by statements in the
instrument.-^^ The practical effect of the acts is that an
intending purchaser of land may, by reference to thc-
E. 204; McLaughlin v. Ihmsen,
85 Pa. St. 3G4; Wilkins v. Mc-
Corkle, 112 Tenn. 688, 80 S. W.
834; Raines v. W^alker, 77 Va.
02; Whalon v. North Platte
Canal & Colonization Co. 11 Wyo.
313, 71 Pac. 995.
In Maryland the legal title does
not pass until recorded. Nickel
V. Brown, 75 Md. 172, 23 Atl.
736; West v. Pusey, 113 Md. 569.
77 Atl. 973. And occasionally re-
fording has been regarded as
necesary to give validity to a
particular class of conveyance,
as one by a married woman,
Rorer's Heirs v. Roanoke Nat.
Bank, 83 Va. 589, 4 S. E. 820.
37. See article by Professor
Wesley N. Hohfield, 26 Yale Law
Jonrn. at p. 756.
37a. 2 Pomeroy. Eq. Jur. §
649; 2 White & T. Lead. Cas.
Eq. Amer. notes, 203; Webb, Rec-
ord of Title, § 4.
38. Crawford v. Chicago, B. &
T. R. Co., 112 111. 314; Mettart
V. Allen, 139 Ind. 644, 39 N. E.
239; Loser v. Plainfield Sav.
Bank, 149 Iowa, 672, 37 L. R. A.
(N. S.) 1112, 128 N. W. 1101;
Taylor v. Mitchell, 58 Kan. 194,
48 Pac. 859; Hickman v. Green,
123 Mo. 165, 29 L. R. A. 39, 22
S. W. 455, 27 S. W. 440; Carter
V. Leonard, 65 Neb. 670, 91 N.
W. 574; Sweet v. Henry, 175 N.
Y. 268, 67 N. E. 574; Cook v.
Caswell, 81 Tex. 678, 17 S. W.
385; Passumpsic Sav. Bank v.
Buck, 71 Vt. 190, 44 Atl. 9:];
Flanary v. Kane, 102 Va. 547,
46 S. E. 312, 681; Smith v.
Owens, 63 W. Va. 60, 59 S. E.
762.
In Georgia the record of a
voluntary deei is not effective
to give priority as again-t a
subsequent purchaser, it neing
necessary that he have noiice
2182 Real Property. [§ 567
record, determiiie whether his vendor has previously
disposed of any interest in the land and also ascertain
both the person from whom his vendor obtained the land,
and whether such jDcrson had disposed of any interest to
a person other than such vendor, and so, iu the case of
each of the successive owners of the land, determine
whether, during the period of his ownership, he created
any interest not vested in the present vendor.'** The
series of successive conveyances by virtue of which the
vendor or another asserts ownership of the land is fre-
quently referred to as his or the "chain of title," each
conveyance constituting, figuratively speaking, one link
in the chain.
(b) Instruments capable of record. Since tlie
effect of the record of an instrument as charging a
subsequent purchaser with notice thereof is solely by
reason of the statute to that effect, it is necessarily
confined to such instruments as the statute authorizes
to be recorded.*" And it is obviously in the case of
such instruments only that the failure to record car.
affect injuriously a person asserting a claim or benefit
under the instrument.'*^ The statutes, however, espe-
cially the later ones, are usualh' quite inclusive in this
regard ; and the tendency of the courts is to give them an
otherwise. Fowler v. Weldrip. 1019; Sjoblom v. Mark, 103 Minn.
10 Ga. 350; Black v. Thornton. 193, 15 L. R. A. (N. S.) 1129, 14
31 Ga. 641; Avera v. Southern Ann. Cas. 125, 114 N. W. 746;
Mortg. Co., 147 Ga. 24, 92 S. E. Riddle v. Fellows, 42 N. H. 309;
533. Sexton v. Elizabeth City, 169 N.
39. A purchaser is bound to C. 385, 86 S. E. 344; Burnham
examine the records back to the v. Chandler, 15 Tex. 441; Pringle
time of the acquisition of title v. Dunn, 37 Wis. 449, 19 Am.
by his vendor, not merely to Rep. 772; Prentice v. Duluth
the time of the record of the Storage & Forwarding Co., 58
conveyance by which the title Fed. 437, 7 C. C. A. 293.
was acquired. Higgins v. Den- 41. Brown v. Butler, 87 Va.
nis, 104 Iowa, 605, 74 N. W. 9. 621, 13 S. E. 71; Hutchinson v.
40. Williams v. Smith. 128 Ga. Bramhall, 42 N. J. Eq. 372, 7
306, 57 S. E. 801; Mack v. Mc- Atl. 873.
Intosh, 181 111. 633, 54 N. E.
§ 567]
Priorities and Recording.
2183
efficient operation, by regarding them as authorizing
the record of ahnost every instrument of a character to
affect the title to land. And so, though by some of the
earlier decisions the record of an equitable title v/as not
regarded as sufficient to affect a subsequent purchaser
with notice thereof, the rule is now generally settled
otherwise, sometimes by express statutory provision,
and consequently the purchaser takes subject to an
instrument, creating or transferring an equity, which
has been recorded."*^ A written contract for the sale
of land, of which specific performance would be decreed,
is ordinarily regarded as within the recording acts,
sometimes by reason of its express mention.^'^ But oc-
casionally the record of such a contract has been re-
garded as nugatory because unauthorized by the stat-
ute.^* In so far as an equity is of a character which
42. O'Neal v. Seixas, 85 Ala.
80; Fish v. Benson, 71 Cal. 428,
12 Pac. 454; Bailey v. Myrick,
50 Me. 171; General Ins Co. of
Maryland v. United States Ins.
Co. of Baltimore, 10 Md. 517, 69
Am. Dec. 174; Edwards v. Mc-
Kernan, 55 Mirh. 520, 22 N. W.
20; Wilder v. Brooks, 10 Minn.
50, 88 Am. Dec. 49; Hunt v. .lohn-
son, 19 N. Y. 279; Tarbell v.
West, 86 N. Y. 280; Russell's
Appeal, 15 Pa. 319; Smith v.
Neilson, 13 Lea (Tenn.) 461;
Herrington v. Williams, 31 Tex.
448.
A restrictive covenant, not con-
tained in an instrument of con-
veyance, has in one state been
held not to be entitled to record.
Sjoblom v. Mark, 103 Minn. 193,
15 L. R. A. (N. S.) 1129, 14
Ann. Cas. 125, 114 N. W. 746.
Contra, Wootton v. Seltzer, 83
N. J. Eq. 163, 90 Atl. 701. 84 N.
J. Eq. 207, 93 Atl. 1087; Bradley
v Walker, 138 N. Y. 291. .",3 N.
E. 1079
43. De Wolf v. Pratt, 42 111.
198; Case v. Bumstead, 24 Ind.
429; Chesbrough v. Vizard In-
vestment Co., 156 Ky. 149, 160
S. W. 725 (option contract);
Bailey v. Coffin, 115 Me. 495, 99
Atl. 447 (as creating trust) ;
South Baltimore Harbor & Im-
provement Co. of Anne Arundel
County v. Smith, 85 Md. 537, 37
Atl. 27; Weisberger v. Wisner.
55 Mich. 246, 21 N. W. 331;
Thorsen v. Perkins, 39 Minn. 420,
40 N. W. 557; McBee v. O'Con-
nell, 16 N. M. 469, 120 Pac. 734;
Kirven v. Wilds, 98 S. C. 403, 82
S. E. 673; Camp Mfg. Co. v.
Carpenter. 112 Va. 79, 70 S. E.
497; Bernard v. Benson, 58 Wash.
191, 137 Am. St. Rep. 1051, 108
Pac. 439; Conaway v. Sweeney, 24
W. Va. 64j3. An assignment of the
contract of sale has also been re-
garded as within the statute.
Salisbury v. La Fitto, 57 Colo.
358, 141 Pac. 484
44. Kendrick v. Colyar, 143
Ala. 597. 42 So. 110; (^hurchill
218J: Eeal Property. [<§ 567
does not admit of record, such as a resulting tfust, an
equity to reform an instrument, or to set aside an in-
strument, the fact that the equity does not appear of
record can obviously not affect the right to assert it as
against a subsequent purchaser. A subsequent pur-
chaser acquiring the legal title for value, however, if
without notice of the equity, would take free therefrom.
Leases, other than those for brief periods, are
ordinarily within the recording laws, so that the record
thereof will operate as notice to a subsequent purchaser,
and the failure to record it may render it nugatory as
to snch purchaser,"*^
In many states the statute requires that a power of
attorney shall be recorded in order to render the record
of a conveyance made under such power effective as
notice to subsequent iDurchasers,^** In the absence of
such statutory requirement there is no necessity, it
seems, of recording the power, since the conveyance puts
the purchaser on inquiry as to the authority of the agent
or attorney.^^ The revocation of a power of attorney
is also frequently required to be recorded in order to
be valid, if the power itself has been recorded. ^^
(c) Unauthorized record of instrument. In
order that the record of an instrument shall operate as
constructive notice to subsequent purchasers, the form
of the instrument must be such that its record is au-
thorized. Consequently, if it is not duly executed,^'-' or
V. Little, 23 Ohio St. 301; First 46. 1 Stimson's Am. St. Law,
Nat. Bank of Stevens Point v. S 1624(10), 1670.
Chafee, 98 Wis. 42, 73 N. W. 47. See Anderson v. Dugas, 29
318. Ga. 440; Valentine v. Piper, 22
45. Jones v. Marks, 47 Cal. Pick. (Mass.) 85. 33 Am. Dec.
242; Commercial Bank v. Pritch- 715; Wilson v. Troup, 2 Cow.
ard, 126 Cal. 600, 59 Pac. 130; (N. Y.) 195, 14 Am. Dec. 458.
Kronfeld v. Missal, 87 Conn. 491, 48. 1 Stimson's Am. St. Law,
89 Atl. 95; Toupin v. Peabody § 1673.
162 Mass. 473, 39 N. E. 280; 49. Racouillat v. Sansevain,
Lucas V. Sunbury & E. R. Co., 32 Cal. 376; Carter v. Champion,
32 Pa. St. 458; Bova v. Norigian, 8 Conn. 549, 21 Am. Dec. 695;
28 R. 1. 319, 67 Atl. 326. Parret v. Shaubhut, 5 Minn. 323
§ 567]
PeIOEITJES and liECOEDING.
2185
if it is not acknowledged or certified as requiired lay
law,^^ its record does not operate as constructive notice
to subsequent purchasers. Moreover, in order to give
priority as against a subsequent purchaser, the instru-
ment must describe the land with sufficient accuracy to
enable one examining the record to identify the land."'^
The view has usually been accepted that if a subse-
quent purchaser actually sees the record of a prior
instrument, although it was not entitled to be recorded,
he is to be regarded as charged with notice ihoreof.^^'
(Gil. 258), 80 Am. Dec. 424;
Rainey v. Lamb Hardwood Lum-
ber Co., 91 Miss. 690, 45 So.
367; Van Thorniley v. Peters, 26
Ohio St. 471; Pringle v. Dunn,
37 Wis. 449, 19 Am. Rep. 772.
50. McDonald v. Norton, 123
Ark. 473, 185 S. W. 791, 1199;
Herndon v. Kimball, 7 Ga. 4;!2,
50 Am. Dec. 406; Donalson v.
Thomason, 137 Ga. 848, 74 S. E.
762; Harris v. Reed. 21 Idaho,
364, 121 Pac. 780; Sinclair v.
Gunzenhauser, 179 Ind. 78, 98 N.
E. 37, 100 N. E. 376; Blackman
V. Henderson, 116 Iowa, 578, 56
L. R. A. 902, 87 N. W. 655:
Ferrell v. Childress, 172 Ky. 760,
189 S. W. 1149; Cockey v. Milne's
Lessee, 16 Md. 200; Graves v.
Graves, 6 Gray (Mass.) 391;
Tinnin v. Brown, 98 Miss. 378,
Ann. Cas. 1913A, 1081, 53 So.
780; Bishop v. Schneider, 46 Mo.
472, 2 Am. Rep. 533; Bradley v.
Walker, 138 N. Y. 291, .•?3 N. E.
1079; Indian Land & Trust Co.
V. Scott, — Okla. — , 158 Pac.
1164; Fleschner v. Sumpter, 12
Ore. 161, 6 Pac. 506; Heister's
Lessee v. Fortner, 2 Binn. (Pa.)
40, 4 Am. Dec. 417; Phillis v.
Gross, 32 S. D. 438, 143 N. W.
37.!; Childers v. Wm. H. Cole-
man Co., 122 Tenu. 109, 118 S.
W. 1018; Playden v. MoffaJ;t, 74
Tex. 647, 15 Am. SL Rep. 836,
12 S. W. 820; Raines v. Walker,
77 Va. 92; South Penn. Oil Co.
V. Blue Creek Development Co.,
77 W. Va. 682, 88 S. E. 1029;
Girardin v. Lampe, 58 Wis. 267,
16 N. W. 614.
51. Evans v. Russ, 131 Ark.
335, 198 S. W. 518; Chamberlain
V. Bell, 7 Cal. 292, 68 Am. Dec.
260; Touchstone v. Ford, 146 Ga.
797, 92 S. E. 524; Thorpe v.
Helmer, 275 111. 86, 113 N. E.
954; Bailey v. Galpin, 40 Minn.
319, 41 N. W. 1054; Simmons v.
Hutchinson, 81 Miss. 351, 33 So.
21; Baker v. Bartlett, 18 Mom
446, 56 Am. St. Rep. 594, 45 Pac.
1084; Banks v. Ammon, 27 Pa.
St. 172; Merritt v. Bunting, 107
Va. 174, 12 Ann. Cas. 954, 57 S.
E. 567; Bright v. Buckman (C.
C.) 39 Fed. 247.
52. Parkside Realty Co. v.
MacDonald, 166 Cal. 426, 137 Pac.
21; Walter v. Hartwig, 106 Ind.
123, 6 N. E. 5; Musick v. Barney,
49 Mo. 458; Woods v. Garnett,
72 Mass. 78, 16 So. .'!90; Hastinsa
V. Cutler, 24 N. H. 481; Mds-
grove V. Bonser, 5 Ore. 313, 20
Am. Rep. 737; Pliillis v. Gross,
2186 Real Propeety. [§ 567
But occasionally a directly contrary view has <>btained,
to the effect that the purchaser may entirely ignore the
record in such case."'"
(d) Instruments not in chain of title. Tlie
recording acts have been construed as charging a pur-
under which the grantor or mortgagor claims, that
as having been executed by a person in the chain of title
is, if there is another and independent chain of title
aifecting the land, but of those only which appear there
theory that, if he exercised proper diligence, he would,
chaser with notice of a recorded instrument on the
is no clue calling his attention to such instrumenrs. t'or
by searching the records, discover the existence and
terms of such instrument, and he has, on the same
upon the records, a purchaser is not affected with
mortgagee is ordinarily regarded as charged wilh notice,
notice of the instruments contained therein, since there
not of all the instruments which appear on the record as
theory, been held not to be charged with notice when his
failure to discover the recorded instrument Vv^is not
owing to lack of diligence. Accordingly, a grantee or
instance, A purchasing from B is not affected with
notice of a conveyance, previouslj^ recorded, from C to
D, unless B's title appears on the record to be derived
through C.^^ And, if a conveyance is not recorded, the
32 S. D. 4.38, 143 N. W. 373, Pac. 489; Harris v. Reed, 21
Gilbert v. Jess, 31 Wis. 110. Idaho, 364, 121 Pac. 780; City of
And so where an instrument Chicago v. Witt, 75 lU. 211; Sin-
was recorded in the wrong coun- clair v. Gunzenhauser, 179 Ind.
ty, but the subsequent purchaser 78, 98 N. E. 37, 100 N. E. 376;
saw it on record. Perrin v. Gardner v. Jaques, 42 Iowa, 577;
Reed, 35 Vt. 2. Ora v. Bane, 92 Kan. 567, 141
53. Nordman v. Rau, 86 Kan. Pac. 303; John T. Moore Plant-
19, 38 L. R. A. (N. S.) 400, iug Co. v. Morgan's Louisiana &
Ann. Cas. 1913B, 1068, 119 Pac. T. R. & S. S. Co., 126 La. 840,
351; Kerns v. Swope, 2 Watts 53 So. 22; Roberts v. Bourne, 23
(Pa.) 75. Me. 165, 39 Am. Dec. 614; Baker
54. Abbott V. Parker, lO.''. Ark. v. Griffin, 50 Miss. 158; Page
425, 147 S. W. 70; Standard Oil v. Waring, 76 N. Y. 463: Blake
Co. V. Slye, 164 Cal. 435, 129 v. Graham, 6 Ohio St. 580, 67
^ 567]
Priorities and Eecordixg.
2187
fact that a conveyance or mortgage by the grantee
therein is recorded will not affect with notice a person
who subsequently obtains a conveyance from the same
grantor.^-^ And the fact that there is of record a inort-
gage from B to A does not charge a subsequent pur-
chaser from A with notice of a prior conveyance by A
to B which was not recorded.^"*'"^ Likewise, the record
of the conveyance of an equitable title from one who
has such title only, while notice to a subsequent pur-
chaser of the same title from the same grantor, is not
notice to one who purchases from the holder of the
legal title,-^*' provided at least he has no notice, actual
Am. Dec. 360; Perkins v. Cissell,
32 Okla. 827, 124 Pac. 7; Ad-
vance Thresher Co. v. Esteb, 41
Ore. 469, 69 Pac. 447; Hethering-
ton V. Clark, 30 Pa. St. 393;
Smyly v. Colleton Cypress Co.,
95 S. C. 347, 78 S. E. 1026; White
V. McGregor, 92 Tex. 556, 71
Am. St. Rep. 875, 50 S. W. 564;
Webb V. Ritter, 60 W. Va. 193,
54 S. E. 484. In Fullerton Lum-
ber Co. V. Tinker, 22 S. D. 427,
18 Ann. Cas. 11, 118 N. W. 700,
the decision to the contrary is
based on the fact that the regis-
ter of deeds was required to
keep an index, which would show
in one place all the conveyances
which might be made of any
particular piece of property.
55. Tennessee Coal, Iron &
Railroad Co. v. Gardner 131 Ala
599, 32 So. 622; Rowe v. Hender
son Naval Stores Co., 139 Ga
318, 77 S. E. 17; Booker v. Book
er, 208 111. 529, 100 Am. St. Rep
250, 70 N. E. 709; Roberts v
Bourne, 23 Me. 165, 39 Am
Dec. 614; Board of Education of
Minneapolis v. Hughes, 118 Minn.
404. 41 L. R. A. (N. S.) n37.
136 N. W. 1095; Hart v. Gardner,
81 Miss. 650, 33 So. 442; Page
V. Waring, 76 N. Y. 463; Hether-
ington V. Clark, 30 Pa. St. 393;
Sayward v. Thompson, 11 Wash.
706, 40 Pac. 379.
It has been said that a pur-
chaser from one in possession
can not assert ignorance of a
prior recorded conveyance by his
vendor, merely because no con-
veyance to his vendor appears of
record, and that he is chargeable
with notice of any recorded con-
veyance made by his vendor in
possession. Eversole v. Virginia
Iron, Coal & Coke Co., 122 Ky.
649, 92 S. W. 593. But he would
be chargeable with notice of a
previous recorded conveyance by
his vendor even if his vendor is
not in possession.
55a. Sternberger v. Ragland,
57 Ohio St. 148, 48 N. E. 811;
Pyles V. Brown, 189 Pa. St. 164,
69 Am. St. Rep. 794, 42 Atl. 11;
Veazie v. Parker, 23 Me. 170;
Pierce v. Taylor, 23 Me. 246.
56. Pearce v. Smith, 126 Ala.
116, 28 So. 37; Ora v. Bane, 92
Kan. 567, 141 Pac. 303; Becker
2188 Eeal Propekty. [§ 567
or constructive, of the equitable title-^^"" This general
rule, restricting the operation of the record as notice
to subsequent purchasers, is obviously based upon the
prevailing method of indexing the records by the names
of the grantors and grantees, and it is readily conceiv-
able that the introduction, in any particular community,
of a method of indexing the records with reference to the
property atfected, might be regarded by the courts as
ground for abrogating the rule."*"
If two or more persons join as grantors or mortga-
gors, the grantee or mortgagee, or one claiming under
him, is chargea])le with notice of recorded instruments
executed by each of them, or by persons in the chain of
title under which each of them claims.^^ And tUe case
is the same when two or more persons, as asserting
conflicting claims to land, or as having merely undivided
interests 'therein, make separate conveyances thereof to
one person.^^
Conveyance of neighboring la,nd. A purchaser
is, it appears, ordinarily charged with notice of an
incumbrance upon the property created by an instru-
ment which is of record, although the primary purpose
of such instrument is, not the creation of such ineum-
Ijrance, but the conveyance of neighboring proiierty.
For instance, if one owning two adjoining city lots
V Stroeher, 167 Mo. 306, 66 S. Law Rev. at p. 324, upon the
V\^. 1083; Tarbell v. West, 86 N. effect of a mortgage by one claim-
Y. 280; Sands v. Beardsley, 32 ing under a contract of sale.
W. Va. 594, 9 S. E. 925. 57. See FuUerton Lumber Co.
56a. Davis & Son v. Milligan, v. Tinker, 22 S. D. 427, 18 Ann.
88 Ala. 523, 6 So. 908 (semMe) ; Cas. 11. 118 N. W. 700; Harris v.
Alden v. Garver, 32 in. 32; Reed, 21 Idaho, 364, 121 Pac.
.Tones V. Lapham, 15 Kan. 540; 780; Balch v. Arnold, 9 Wj'O. 17.
Balen v. Mercier, 75 Mich. 42, 42 59 Pac. 434.
N. W. 666; Crane v. Turner, 7 58. Gimon v. Davis, 36 Ala.
Hun (N. Y.) 357, aff'd 67 N. Y. 589; Creel v. Keith, 148 Ala. 233,
437. See Edwards v. McKernau, 41 So. 780.
55 Mich. 520, 22 N .W. 20. These 59. Brannan v. Marshall, 1S4
citations are in part from an Ala. 375, 63 So. 1007.
editorial note in .17 Columbia
§ 567] Priorities and Recording. 2189
conveys one of them, the instrument of conveyance ex-
pressly granting an easement as against the lot retained
in favor of that conveyed, the record of such conveyance
will, it seems, affect a subsequent purchaser of the
former lot with notice of such easement and he will take
subject thereto. In such a case, at common law, the
purchaser would take subject to the easement previous-
ly^ created, as being a legal interest, irrespective of
whether he has notice thereof,*'^ and the rule in this
respect could not well be regarded as changed by the
adoption of the recording law, as applied to a case in
which the grant of the easement does appear of record,
though in connection with the conveyance of other land,
to which the easement is made appurtenant.^' And
when, as may occur,"^ the acceptance of a convey-
ance of land, or of a grant of an easement in particular
land, involves the creation of an easement upon other
land, belonging to the grantee, in favor of land belong-
ing to the grantor, by reason of words of contract or
reservation inserted in the instrument, a subc^^equent
purchaser of such other land from the grantee would, it
seems, be charged with notice of the easement, by reason
of the record of the conveyance or grant, althou2:h the
primary purpose thereof was to convey an interest in
60. See ante, § 566(a), 11 chargeable with notice, by the
Halsbury's Laws of England, 247; record of the conveyance to A,
Leech v. Schweder, 9 Ch. App. that not only did she, A, have the
463, 474. part described, but also that an
61. See Hammonds v. Eads, 146 easement was granted by that
Ky. 162, 142 S. W. 379, Glorieux conveyance to A over the balance
V. Lighthipe, 88 N. J. L. 199, Ann. of the tract.
Cas. 1917E, 484, 96 Atl. 94; Bow- 62. See Dyer v. Sanford, 9
man v. Holland, 116 Va. 805, 83 Meto. (Mass.) 404; Case v.
S E. 393. In Mitchell v. D'Olier, Haight, 3 Wend. (N. Y.) 632;
68 N. J. L. 375, 59 L. R. A. 949, referred to in 6 Harv. Law Rev.
53 Atl. 467, it was held that 311, article by H. W. Chaplin,
where a conveyance to B of a Esq. In the first cited case,
tract of land contained an ex- Shaw, C. J., says: "We think a
ception of a certain part specif- grant may be so made as to
ically described, as having been create a right in the grantee's
previously conveyed to A., B was land in favor of the grantor. For
2 R. P.— 63
2190 Real Property. [§ 567
different land. And if, in conveying lot A, tlie grantor
enters into a restrictive agreement as to the improve
ment of lot B, retained by him, a subsequent purchaser
of lot B would ordinarily be charged with notice of the
agreement, by reason of its record as a part of the
conveyance of lot A. Were he not so charged, the re-
strictive agreement might be to a considerable extent
nugatory.^'"^ And, as will appear later,^'^ where one
mortgage covers two or more lots or tracts, the pur-
chaser of one lot or tract is, by the record of a previous
conveyance or mortgage of the other tract, increasing
the proportion of the mortgage debt to be borne by the
former lot or tract, charged with notice thereof.
(e) Instruments executed prior to acquisition
of title. The question whether a jjurchaser is charged
with notice by the record of a conveyance, executed by
a f)erson in his grantor's chain of title before such per-
son's acquisition of the title, has been considered in
connection with our discussion of the doctrine of the
grantor's estoppel to assert an after acquired title,'^^"*^''
it being only by reason of that doctrine that such a con-
veyance by one without title can in any case be effective.
instance; suppose A. has close C3. King v. St. Louis Union
No. 2, lying between two closes. Trust Co., 226 Mo. 351, 126 S. W.
Nos. 1 & 3, of B; and A grants 415; Lowes v. Carter, 124 Md.
to B the right to lay and main- 678, 93 Atl. 216; Whistler v. Cole,
tain a drain 'from close No. 1, 81 N. Y. Misc. 519, 143 N. Y.
across his close No. 2, thence to Supp. 478, 146 N. Y. Supp. 1118;
be continued through his own Holt v. Fleischman, 75 N. Y. App.
close, No. 3, to its outlet; and A, Div. 593, 78 N. Y. Supp. 647.
in his grant to B, should reserve But a contrary view was adopted
the right to enter his drain, for in Glorieux v. Lighthipe, 88 N. J.
the benefit of his intermediate L. 199, Ann. Cas. 1917E 484, 96
close, with the right and privilege Atl. 94, on the ground that the
of having the waste water there- statute, in making the record
from pass off freely through the notice to subsequent purchasers,
grantee's close, No. 3, forever. meant purchasers of the same
In effect, this, if accepted, would land as that previously conveyed,
secure to the grantor a right in 64. Post. § 625.
the grantee's land." 65-67. Ante, § 545(e).
§ 567] Pkioeities and Kecobding. 2191
The cases are not in harmony as to whether a purchaser,
finding the record of a conveyance by A to B for in-
stance, and a subsequent conveyance by B to the vendor,
must examine the records to see whether B, before the
conveyance by A to him, had made a conveyance to some
other person, which, upon B 's acquisition of title, vested
the title in such person.
(f ) Instruments executed after apparently
parting with title. It is generally agreed that a pur-
chaser is not charged with notice of a conveyance by a
person in the grantor's chain of title, by reason of the
record thereof, if such conveyance was executed after
the grantor therein appears, by a recorded conveyance,
to have parted with the title.^^ For instance, if A first
conveys to B, and then conveys to C, a purchaser from
B, is not, by reason of the record of the conveyance to
C, charged with notice of its existence, so as to be put
on inquiry as to the validity of the conveyance by A to
B. He has the right to assume that A, having conveyed
to B, would have made no further conveyance, and he is
consequently under no obligation to search for such a
conveyance. Whether, in case the purchaser from B
had actual notice of the subsequent conveyance to C, he
would be put on inquiry thereby as to the validity of
the conveyance to B, is another question, which would
probably call for an affirmative answer.
(g) Instrument recorded after parting with
title. When a purchaser who receives his conveyance
before the record of a prior conveyance by the same
grantor to another, nevertheless takes subject to such
prior conveyance, as having actual notice thereof, on.^
who purchases from him, but after the record of such
prior conveyance, has usually been regarded as taking
68. Goodkind v. Bartlett, 153 Hooker v. Pierce, 2 Hill (N. Y.)
HI. 419, 38 N. E. 1045; Tydings 650; White v. McGregor, 92 Tex.
V. Pitcher, 82 Mo. 379; Chowen v. 556. 71 Am. St. Rep. 875, 50 S.
Phelps, 26 Mont. 524, C9 Pac. 54; W. 564.
2192 Real Property. [§ 567
subject thereto. Such last purchaser cannot claim
priority as a purchaser from an innocent purchaser,*^'
since his vendor took with notice, and he cannot him-
self claim to be an innocent purchaser, because he is
charged with notice by the record of the prior convey-
ance before his purchase.'^'' In states in which a sub-
sequent purchaser, in order to be protected as against
an unrecorded conveyance of which he has no notice,
must first record his conveyance, '^^ it seems that the last
purchaser might, under such circumstances, bo post-
poned, even though he purchased before the record of
such first conveyance, unless he records his conveyance
before the first conveyance is recorded,'^^
Under the doctrine stated in the preceding para-
graph, an intending purchaser, although he finds by the
index of grantors in the record office, that a particular
person in the chain of title executed a conveyance of the
land, must nevertheless continue the examination of
the records under the name of such person, in order to
see whether there was subsequently recorded a i^moc
conveyance by such person, though, as before stated'^^
he is under no such duty for the purpose of seeing
w^hether there was subsequently recorded a suhsequent
conveyance by such person. If, however, he perform
his duty in searching for any prior conveyance, he
would usually discover any subsequent conveyance of
record, and for this reason there seems a certain incon-
sistency in making the question of his constriK^tive no-
tice of a conveyance subsequently recorded depend upon
69. Post. § 575. 280; Parrish v. Mahany, 10 S. D.
70. Mahoney v. Middleton, 41 276, 66 Am. St. Rep. 715, 73 N. W.
Cal. 41; Bayles v. Young ,51 111. 97; White v. McGregor, 92 Tex.
127; Van Aken v. Kleason, 34 556, 71 Am. St. Rep. 875, 50 S.
Mich. 477; Cook v. French, 96 W. 564, (dictum); Erwin v.
Mich. 525, 56 N. W. 101; Woods Lewis, 32 Wis. 276.
V. Garnett, 72 Miss. 78, 16 So. 71. Post, § 567(1), note 11.
390; Jackson v. Post, 9 Cow. (N. 72. Fallass v. Pierce, 30 Wis.
Y.) 120, 15 Wend. (N. Y.) 588; 443.
Van Rensselaer v. Clark, 17 73. Ante, § 5G7(f).
Wend. (N. Y.) 25, 31 Am. Dec.
§ 567] Priorities and Recording. 2193
the date of the conveyance. In one state any distinction
in this regard is obviated by decisions to the effect that
an intending purchaser, having found on the lecords a
conveyance by a particular person in the chain of title,
is under no obligation to ''run down" such person
further in the index of grantors for the purpose of dis-
covering any prior conveyance by him subsequently re-
corded/^
(h) What constitutes recording. By the con-
struction usually placed on the recording acts, and fre-
quently by the express language thereof, it is the time
of the filing or deposit of an instrument for record, and
not the time of its actual record by the official recorder,
that determines the rights of the claimant thereunder
as against a subsequent purchaser.'^^
That after the instrument has been recorded, the
record is in some way destroyed, as by tire, has b'?en re-
garded as not affecting the validity of the act of record,
for the purpose of protecting the claimant thereunder
as against a subsequent purchaser. '^^"'^^
74. Morse v. Curtis, 140 Mass. Cas. 559, 38 So. 797; Lewis v.
11, 54 Am. Rep. 456, 2 N. E. Hinman, 56 Conn. 55, 13 Atl.
929. In Day v. Clark, 25 Vt. 143; Greenfield v. Stout, 122 Ga.
Vt. 397, the same result is attain- 303, 50 S. E. Ill; Tucker v. Shaw,
ed on the theory that, as a subse- 158 111. 326. 41 N. E. 914; Sinclair
quent purchaser with notice from v. Slawson, 44 Mich. 123, 38 Am.
a purchaser without notice takes Rep. 235, 6 N. W. 207; Deming
free from any adverse claim, the v. Miles, 35 Neb. 739, 37 Am. St.
last purchaser is, in this case, to Rep. 464, 53 N. W. 665: Davis v.
be preferred, because he does not Whitaker, 114 N. C. 279, 41 Am.
know that his grantor had actual St. Rep. 793, 19 S. E. 699; Fara-
notice of the unrecorded convey- bee v. McKerihan, 172 Pa. 234, 51
ance. Such a view, that a pur- Am. St. Rep. 734, 33 Atl. 583;
chaser is protected unless he Throckmorton v. Price. 28 Tex.
knows that his vendor had notice 605, 91 Am. Dec. 334. And see
of an adverse claim, appears to authorities cited post, § 567 (i),
find no support elsewhere. See note 78.
also Bowman v. Holland, 116 Va. 76-77. Paxson v. Brown, 10 C.
805, 83 N. E. 393. C. A. 135, 61 Fed. 874; Houston
75. See Chapman & Co. v. Oil Co. of Texas v. Wilhelm, 104
Johnson, 142 Ala. 633, 4 Ann. C. C. A. 618, 182 Fed. 474; Alvis
-l9-t Eeal Property. [§ 567
(i) Time allowed for recording. The statute
occasionally provides that the instrument shall be re-
corded or filed for record within a certain period after
its delivery, or expressly allows such a period for re-
cording. A requirement that the instrument shall be
recorded w^ithin a specified time would ordinarily be
satisfied by the filing of it for record within that time,
the grantee not being in a position to control the time
of actual recording by the official recorder.'** This would
seem to be a reasonable construction to place upon such
a provision, and usually the statute contains an express
declaration that the instrument shall be regarded as re-
corded from the time at which it is filed or ''lodged"
for record, 'or that it shall be effe.ctive as against sub-
sequent purchasers from that time, thus indicating that
the time of filing and not the time of actual recording
is the important consideration.
A provision thus specifying the time within which
the instrument must be recorded in order to make it
etfective as against subsequent purchasers has ordina-
rily been construed as making the record of the instru-
ment at any time within the period named e»^iui\'alent
to its record at the time of its delivery, so as to give it
priority over a subsequent conveyance made lo a bona
fide purchaser within that period, even though this be
first recorded. ^^ The record of an instrument offer the
V. Morrison, 63 IH. 181, 14 Am. Gibbons, 30 Gratt. (Va.) 632.
Rep. 117; Shannon v. Hall, 72 111. 78. 'McGregor v. HaH, 3 Stew.
354, 22 Am. Rep. 146; Hyatt v. & P. 397; Dubose v. Young. 10
Cochran, 69 Ind. 436; Thomas v. Ala. 365; Gill v. Fauntleroy's
Hanson, 59 Minn. 274; Myers v. Heirs, 8 B. Mon. (Ky.) 177;
Buchanan, 46 Miss. 397; Geer v. Harrold v. Simonds & Bailey, 9
Missouri Lumber Min. Co., 134 Mo. 326; Hughes v. Powers, 99
Mo. 85, 34 S. W. 1099, 56 Am. St. Tenn. 480, 4 S. W. 1. And see
Rep. 489; Deming v. Miles, 35 authorities cited ante. § 567(h)
Neb. 739, 37 Am. St. Rep. 464, 53 note 75. But see Benson v. Green,
N. W. 665; Cooper v. Flesner, 24 80 Ga. 230, 4 S. E. 851; Moore v.
Okla. 47, 23 L. R. A. (N. S.) Collins, 15 N. C. 384.
1180, 20 Ann. Cas. 29, 103 Pac. 79. Betz v. Mullin, 62 Ala. 365;
1016; Houston v. Blythe, 71 Tex. White v. Interstate Bldg. Ass'n.,
719, 10 S. W. 520; Armentrout v. 106 Ga. 146, 32 S. E. 26; Mc-
§ 567] Priorities and Recording. 2195
statutory period can obviously not have sucli an effect
of making the record relate back to the time of de-
livery,^^ but for other purposes it is as effective as rec-
ord within the period, that is, it operates as construc-
tive notice to one purchasing after such record.**^
As between two instruments, neither of which is re-
corded within the statutory time, the matter of priority
would ordinarily be determined, it seems, as if there
were no provision in the statute as to time.^^ As
betw^een two instruments, of which the one first re-
corded was not recorded within the statutory time, and
the other was recorded within such time, it was held,
on a construction of the statute, that the one first re-
corded was entitled to jDriority.*'^
In the absence of a statutory provision as to the
time of recording, the record of an instrument cannot
relate back to the time of its delivery, so as to take
priority over an intervening conveyance oi" incum-
brance.^* If the record did so relate back, without any
limitation as to the extent of the interval between the
delivery and record of the conveyance, a subsequent
Carthy v. Seisler, 130 Ind. 63, Bush (Ky.) 225; Claiborne v.
29 N. E. 407; Finley v. Spratt, 14 Holmes, 51 Miss. 146; Sanborn v.
Bush (Ky.) 225 Claiborne v. Adair, 29 N. J. Eq. 338; North-
Holmes, 51 Miss. 146; Fries v. rup v. Bremer, 8 Ohio, 392;
Null, 154 Pa. 573, 26 Atl. 554 Pleschner v Sumpter, 12 Ore. 161,
(dictum); Steele v.' Mansell, 6 6 Pac. 506; Fries v. Null, 154 Pa.
Rich. L. (S. C.) 543; Camp Mfg. 573. 26 Atl. 554; CoUins v.
Co. V. Carpenter, 112 Va. 79, 70 Aaron, 162 Pa. 539, 29 Atl.
S. E. 497. 724; Levi v. Gardner, 53 S. C. 24,
80. Maddox v. Wilson, 91 Ga. 30 S. E. 617; Turner v. Cochran,
39, 16 S. E. 213; Pollard v. 94 Tex. 480, 61 S. W. 923.
Cocke, 19 Ala. 188; Schmidt v. 82. McGuire v. Barker, 61 Ga.
Zahrndt, 148 Ind. 447, 47 N. E. 339; Fleschner v. Sumpter, 12
335; Littlefield v. Prince, 96 Me. Ore. 161, 6 Pac. 506; Souder v.
499, 52 Atl. 1010; Harding v. Morrow, 33 Pa. 83; Collins v.
Allen, 70 Md. 395, 17 Atl. 377; Aaron, 162 Pa. 539, 29 Atl. 724.
Leger v. Doyle, 11 Rich. L. (S. 83. Fries v. Null, 154 Pa. 573,
C.) 109, 70 Am. Dec. 240. 26 Atl. 554, 158 Pa. 15, 27 Atl.
81. Adair v. Davis, 71 Ga. 769; 867.
McVay v. English, 30 Kan. 368, 84. See Sigourney v. Lamed,
1 Pac. 795; Finley v. Spratt, 14 lo Pick. (Mass.) 72.
2196 Real Property. [§ 567
purchaser would never be protected against a prior un-
recorded conveyance. In one state, however, it has been
held that, although there is no statutory provision as
to the time of record, the record will relate back to the
time of delivery if the recording occurs within a ''rea-
sonable" time.^^ In one state it has been decided that,
although the statute in terms invalidates an unrecorded
conveyance only as against a subsequent purchaser
whose conveyance shall first be duly recorded, a delay
in recording an instrument may operate by way of
estoppel to prevent the beneficiary thereunder from as
serting it as against a subsequent purchaser whose con-
veyance is not first recorded.^^ This view appears not to
have been asserted elsewhere, though there are numei'-
ous decisions to the effect that the failure to record
may operate by way of estoppel in favor of creditors
of the grantor who give credit to him on the assump-
tion that he is still the owner of the land.^''^^
The question of the effect of a delay in recording
presents obvious difficulties from a practical point of
view. A statute which allows a grantee, by recording
his conveyance at any time within a certain period,
thereby to obtain priority over an intervening pur-
chaser who took in ignorance of the prior conveyance
and had no means of discovering its existence, must
frequently work hardship, and prevents a purchaser
from relying with any sense of absolute security upon
the title as it appears of record. On the other hand, if
a grantee is allowed no time within which he may re-
85. Goodsell v. Sullivan, 40 Kappes v. Rutherford Park Ass'n,
Conn. 83; Hartford Building & 60 N. J. Eq. 129. See also Long-
Loan Ass'n V. Goldreyer, 71 Conn. worth v. Chase, 1 McLean, (U.
95, 41 Atl. 659. S.) 282. And compare Mintz v.
86. Marling v. Nommensen, 127 Russ, 161 N. C. 538, 77 S. E. 851
Wis. 363, 5 L. R. A. (N. S.) 412, That a delay of several years in
115 Am. St. Rep. 1017. 7 Ann. Cas. recording does not Involve an
364, 106 N. W. 844. See, as to "abandonment" of one's title, see
the effect of a failure for twenty- Bond v. Wilson, 129 N. C. 325, 40
two years to record or to make S. E. 179.
claim as constituting laches, 86a. Ante, § 546.
§ 567] Priorities and Kecording. 2197
cord the instrument, being in effect liable to be post-
poned to a subsequent conveyance to another executed
immediately after his own conveyance, during the inter-
val of time, perhaps, necessary for the transmission of
his own instrument to the record office, such grantee
is evidently not fully protected.
The statutory provisions as to the time for record-
ing, construed, as they have been, as allowing the
grantee to postpone recording for a certain period with-
out thereby endangering his right of priority, seem to
be of questionable expediency. A greater dtgree of
justice is likely to be attained by the statutes which,
not naming any time for recording, afford protection
as against a subsequent purchase only if the prior con-
veyance is recorded before the subsequent purchase oc-
curs. Under such a statute no doubt a purchaser wiio
exercises the greatest possible promptitude in record-
ing his conveyance may occasionally be postponed by
reason of the immediately previous record of a con-
veyance to another, but this is not apt to occur, and if
it does occur, he is in a position immediately to learn
thereof and to take measures accordingly, while when
a certain period is allowed for recording, a purcliaser
although he has recorded his conveyance, must wait
until the statutory period has expired before he can rest
assured that he has obtained the title w^hich he under-
took to purchase. ^'^
(j) Mistakes by recording officer. The couiis
of the different states are divided upon the (question as
to who must suffer the loss occasioned by an error made
by the officer in recording a conveyance deposited with
him for record. Some courts liold that a grantee, by
lodging the instrument with the proper officer for rec-
ord, acquits himself of all responsibility as to the actual
recording, and that from that time it is notice to sub-
sequent purchasers of what it contains, and not of what
87. See Webb, Record of Title,
§ 7.
2198 Real Pkopeety. [^, 567
the rocording officer may make it show on the rec-
Qj,(j S8S9 rpi^jg view is usually based upon the language
of the recording statute of the particular state, provid-
ing in effect that a conveyance shall be operative as a
record, or as against a subsequent purchaser, from tlic
time that it is filed or deposited for record. Other
courts hold that subsequent purchasers are bound only
by what the records show, and that the grantee in a
conveyance, in order absolutely to guard against mis-
takes by the recorder, and to insure the preservation
of his rights as against subsequent purchasor^■, must
ascertain that the recordino^ is correctlv done."'' This
latter view is usually based on the theor}^ that che re-
cording officer is to be regarded, in respect to the record
of any particular instrument, as the agent of the bene-
ficiary under the instrument, and that the latter is in a
position, by the exercise of a considerable degree of dili-
gence, to ascertain whether the officer has correctly per-
formed his duty, which a subsequent purchaser, even by
the exercise of the greatest diligence, could not possibly
88-89. Minis v. Mims, 35 Ala. McKerrihan, 172 Pa. 234, 51 Am.
23; Chapman & Co. v. Johnson, St. Rep. 734, 33 Atl. 583; Parrish
142 Ala. 633, 4 Ann. Cas. 559, 38 v. Mahany, 10 S. D. 276, 66 Am.
SO. 797; Carter v. Tennessee Coal St. Rep. 715.
& Iron & Ry. Co., 180 Ala. 367, 90. Cady v. Purser, 131 Cal.
61 So. 65 (deed lost in record 552, 82 Am. St. Rep. 391, 63 Pac.
office); Case v. Hargadine, 43 844; Shepherd v. Burkhalter, 13
Ark 144; Lewis v. Hinman, 56 Ga. 443, 58 Am. Dec. 523; Gil-
Conn. 55, 13 Atl. 143; Merrick v. christ v. Gough, 63 Ind. 576, 30
Wallace, 19 111. 486; Tucker v. Am. Rep. 250; Miller v. Bradford,
Shaw, 158 111. 326, 41 N. E. 914; 12 Iowa, 14; Hall v. Wright, 137
Zeiner v. Edgar Zinc Co., 79 Kan. Ky. 39, 127 S. W. 516; Hill v. Mc-
406, 99 Pac. 614; Gillespie v. Nichol, 76 Me. 314; Brydon v.
Rogers, 146 Mass. 610, 16 N. E. Campbell, 40 Md. 331; Grand
711; Mangold v. Barlow, 61 Miss. Rapids Nat. Bank v. Ford, 143
593, 48 Am. Rep. 84; Sinclair v. Mich. 402, 114 Am. St. Rep. 668,
Slawson, 44 Mich. 123, 38 Am. 8 Ann. Cas. 102, 107 N. W. 76;
Rep. 235; Deming v. Miles, 35 Frost v. Beekman, 1 Johns. Ch.
Neb. 739, 37 Am. St. Rep. 464, 53 (N. Y.) 288; Beekman v. Frost,
N. W. 665; Davis v. Whitaker, 18 Johns. (N. Y.) 544; New
114 N. C. 279, 41 Am. St. Rep. York Life Ins. Co. v. White, 17
793, 19 S. E. 699; Ferabee v. n. Y. 469; Jennings' Lessee v.
§ 567]
Peiorities and Recording.
2199
do. This view has occasionally been adopted even when
the statute in terms provided that the instrument shall
operate as notice from the time of its filing for record.'-^^
Accordingly as the one or the other of tije two
views referred to is adopted, it is, in some states, im-
material to the grantee in a conveyance that the in-
strument is recorded in the wrong book, it nevertheless
operating as constructive notice to subsequent pur-
chasers,''- while in other states the contrary is true.^^
The rule before referred to^^ that it is the time of
the filing or deposit of an instrument of record, and not
the time of its actual record by the official recorder, that
determines the rights of the claimant thereunder as
against a subsequent purchaser, is recognized even in
Wood, 20 Ohio 261; Prouty v.
Marshan, 225 Pa. 570, 25 L. R. A.
(N. S.) 1211, 74 Atl. 550; Sawyer
V. Adams, 8 Vt. 172, 30 Am. Dec.
459; Ritchie v. Griffiths, 1 Wash.
429, 12 L. R. A. 384, 22 Am.
St. Rep. 155, 25 Pac. 341; Pringle
V. Dunn, 37 Wis. 449, 19 Am.
Rep. 772.
91. Miner v. Bradford, 12
Iowa, 14; Terrell v. Andrew
County, 44 Mo. 309; Sinclair v.
Gunzenhauser, 179 Ind. 78, 98 N.
E. 37, 100 N. E. 376 (semble).
92. Lignoski v. Croiker, 86
Tex. 324, 24 S. W. 278, 788;
Swenson v. Bank, 9 Lea (Tenn.)
723. In Cawthon v. Stearns
Culver Lumber Co., 60 Fla. 313,
53 So. 738, it was held that since
the statute did not contain any
requirement as to recording in a
particular book, the fact that the
instrument was recorded in a
book other than the one in which
it might be expected to be found
was immaterial.
In Pennsylvania, although, ac-
cording to the latest decision, a
purchaser is bound only by what
the records show, nevertheless ho
Is bound by a mortgage recorded
and indexed, not in the mort-
gage book and index, but in the
deed book and index, since it
would be discovered by any per-
son examining the title. Seo
Prouty V. Marshall, 225 Pa. 570,
25 L. R. A. (N. S.) 1211, 74 Atl.
550; distinguishing Farabee v. Mc-
Kerrihan, 172 Pa. 234, 51 Am. St.
Rep. 734, 33 Atl. 583.
93. Cady v. Purser, 131 Cal.
552, 82 Am. St. Rep. 391, 63 Pac.
844; Sinclair v. Gunzenhauser,
197 Ind. 78, 98 N. E. 37, 100 N.
E. 376; Grand Rapids, etc.. Bank
V. Ford, 143 Mich. 402, 114 Am.
St. Rep. 668, 8 A. & E. Ann. Cas.
102, 107 N. W. 76; Gillig v. Maass,
28 N. Y. 191; Parsons v. Lent,
PA N. J. Eq. 67; Drake v. Rep-
gel, 10 Utah. 376, 37 Par. 583;
Sawyer v. Adams, 8 Vt. 172;
Bernard v. Benson, 58 Wash. 191,
137 Am. St. Rep. 1051, 108 Pac.
439.
94. Ante, § 567(h).
2200 Real Property. [<§ 567
tliose states in which a grantee is not protected as
against subsequent purchasers by the mere tiling of
the instrument for record, but must see that the re-
cording is correctly done. In this class of states it
is considered that, while the filing or deposit of the
instrument for record is in itself nugatory, yet if it
is thereafter properly recorded, the recording dates
back to the time of tiling, for the purpose of determin-
ing priorities.^^
(k) Index to records. An index of the gran-
tors and grantees as named in the recorded convey-
ances is ordinarily kept in the record office, and the
statute frequently so requires. And occasionally the
statute requires that this index also indicate the
property conveyed, and perhaps other details of
the conveyance. A subsequent purchaser has been
regarded as chargeable with notice of statements in the
index, even after the conveyance is actually recorded,
in so far as such statements may serve to correct errors
or supply omissions in the record itself.^'' An entry in
the index is sufficient if it serves to put a purchaser
on inquiry ,^'^ and, in so far as it undertakes to describe
the land, points thereto with reasonable certainty.'''^
An omission, from the entry in the index, of all descrip-
tion of the land, although there is a blank space for such
95. Anderson v. Dugas, 29 Ga. Mich. 123, 38 Am. Rep. 235, 6 N.
440; Sinclair v. Gunzenhauser, W. 207; Pringle v. Dunn, 37 Wis.
179 Ind. 78, 98 N. E. 37, 100 N. 449, 19 Am. Rep. 772. But a sub-
E. 376; Terrell v. Andrew County, sequent purchaser has been held
44 Mo. 309; Leger v. Doyle, 11 not chargeable with notice of
Rich. (S. C.) 109, 70 Am. Dec. statements in the index as to
240; Bigelaw v. Topliff, 25 Vt. matters not required to be stated.
282. In Whalley v. Small, 25 Gilchrist v. Gough, 63 Ind. 576, 30
Iowa, 184, while this principle Am. Rep. 250.
was conceded, it was decided to 97. Jones v. Berkshire, 15
be inapplicable when there was Iowa, 248, 83 Am. Dec. 412.
a delay of twenty-five years in 98. Barney v. Little, 15 Iowa,
the actual recording. 527; Malbon v. Grow, 15 Wash.
96. Sinclair v. Slawson, 44 301, 46 Pac. 330.
§ 567] Prioeities and Eecoeding. 2201
descrijotion, and it is ordinarily inserted, has been held
not to affect the effectiveness of the entry, the index
referring to the place of record of the conveyance.^"
In so far as the recording statute of the particular
state is construed as charging a subsequent purchaser
with notice of an instrument by reason merely of the
filing thereof, without reference to mistakes or omih;-
sions of the recorder,^ a subsequent purchaser can not
assent that he was misled by errors or omissions in the
index, he being chargeable with notice of the prior in-
strument without reference to the index.^ In jurisdic-
tions in which a subsequent purchaser is chargeable
with notice of a prior conveyance by reason of the rec-
ord thereof only if the record is correct,^ the question
w^hether a subsequent purchaser is bound by r prior
conveyance not properly indexed has usually been de-
termined by the consideration whether its inclusion in
the index is to be regarded, under the statute, as an
essential part of its record, the subsequent purchaser
not being chargeable with notice of the conveyance if
such inclusion is an essential part of its record,^ while
he is so chargeable otherwise.^
99. Oconto V. Jerrad, 46 Wis. 155, 25 Pac. 341;" Lombard v.
317, 50 N. W. 591; St. Croix Land Culbertson, 59 Wis. 433, 18 N. W.
& Lumber Co. v. Ritchie, 73 Wis. 399.
409, 41 N. W. 345, 1064. 5. Chatham v. Bradford, 50 Ga.
1. Ante, § 566 (j) note 88. 327, 15 Am. Rep. 692; Agurs v.
2. See Amos v. Givens, 179 Ala. Belcher & CresweU, 111 La. 378,
605, 60 So. 829; Davis v. Whit- 100 Am. St. Rep. 485, 35 So. 607;
aker, 114 N. C. 279, 41 Am. St. Bishop v. Schneider, 46 Mo. 472, 2
Rep. 793, 19 S. E. 699; Herndon Am. Rep. 533; Mutual Life Ins
V Ogg, 119 Ky. 814, 84 S. W. 754. Co. of New York v. Dake, 87 N.
3. Ante, § 566(j), note 90. Y. 257; Green v. Garrington, 16
4. Barney v. McCarty, 15 Iowa, Ohio St. 548, 91 Am. Dec. 103;
510, 83 Am. Dec. 427; Koch v. Stockwell v. McHenry, 107 Pa. St.
West, 118 Iowa, 468, 96 Am. St. 237, 52 Am. Rep. 475; Armstrong
Rep. 394, 92 N. W. 663; Prouty v. Austin, 45 S. C. 69, 29 L. R.
V. Marshall, 225 Pa. 570, 25 L. A. 772, 22 S. E. 763; Curtis v.
R. A. (N. S.) 1211, 74 Atl- 550; Lyman, 24 Vt. 338, 58 Am. Dec.
Ritchie v. Griffiths, 1 Wash. 429, 176.
12 L. R. A. 384, 22 Am. St. Rep.
2202 Real Property. [^ 567
(1) Persons affected with notice by record.
The recording acts usually in terms require the record
of an instrument for the benefit of a subsequent pur-
chaser or incumbrancer only. Consequently, one who
has previously acquired an interest in the land, or who
is a party to the instrument itself, is not charged with
notice of any facts by the record.*' For instance^ the
record of a conveyance does not charge the grantor
therein with notice that the grantee, after its execution,
fraudulently inserted an additional provision therein,'^
nor does it charge the rightful owner of the property
with notice of an adverse claim thereto on the part of
the grantor and grantee.^ And it appears to be well
recognized that one having a debt secured by mortgage
on land is not, by the record of a subsequent convey-
ance or mortgage of part of the mortgaged land,
charged with notice thereof, so as to be precluded from
releasing another part of the land to the detriment of
the subsequent grantee or mortgagee.^
The purchaser of an equitable title, it seems evi-
dent, cannot be in a better position as regards a prior
instrument than if he acquired a legal title, and con-
sequently he takes subject to a prior conveyance or in
6. Karns v. Olney, 80 Cal. 90, 525, 94 Am. Dec. 350; Bradtl v.
13 Am. St. Rep. 101, 22 Pac. 57; Sharkey, 58 Ore. 153, 113 Pac.
Lowden v. Wilson, 233 111. 340, 84 653.
N. E. 245; Annan v. Hays, 85 Md. 9. Birnie v. Main, 29 Ark. 591;
505, 37 Atl. 20; Corey v. Smalley, Woodward v. Brown, 119 Cal. 283,
106 Mich. 257, 58 Am. St. Rep. 51 Pac. 2, 542, 63 Am. St. Rep.
474, 64 N. W. 13; Lausman v. 168; Lewis v. Hinman, 56 Conn.
Drahos, 8 Neb. 457; Stuyvesant 55, 13 Atl. 143; Boone v. Clark,
V. Hall, 2 Barb. Ch. (N. Y.) 151; 129 111. 446, 5 L. R. A. 276, 21
First Nat. Bank of Dickinson v. N. E. 850; George v. Wood, 9
Big Bend Land Co., 38 N. D. Allen, 80, 85 Am. Dec. 741;
33, 164 N. W. 322; Stivens v. Howard Insurance Co. v. Halsey,
Summers, 68 Ohio St. 421, 67 N. 8 N. Y. 271, 59 Am. Dec. 478;
E. 884. Lynchburg Perpetual Bldg. Ass'n
7. Davis V. Monroe, 187 Pa. v. Fellers, 96 Va. 337, 70 Am.
212, 67 Am. St. Rep. 581, 41 Atl. St. Rep. 851, 31 S. E. 505. So, a
44. judgment lienor may release part
8. HoUey v. Hawley, 39 Vt. of his lien without first examin-
<§> 567] Peioeities and Recobding. 2203
cumbrance duly recorded to the same extent as the pur-
chaser of the legal title. In case the prior conveyance
involved a disposition of the legal title, the grantor has
nothing left of which to dispose, and in case it involved
a disposition of the equitable title only, it would be
entitled to priority as being first in order of time.^*^'
(m) Persons entitled to assert failure to record.
The statute in a number of the states pi'ovides that an
unrecorded conveyance shall be void as against a sub-
sequent purchaser without notice ''whose conveyance is
first recorded," thus making the question of priority
depend to a considerable extent upon priority of re-
cording.^^ In the absence of such a clause, it has usu-
ally been held that the later purchaser may, without
recording his conveyance, assert priority over an earlier
unrecorded conveyance of which he has no notice. ^^
The statutory clause referred to, by which the priority
of a subsequent conveyance over an earlier unrecorded
conveyance is made dependent upon the earlier record
of the subsequent conveyance, has been referred to^'^ as
not in accord with the general policy of the recording
laws, which is to protect a subsequent purchaser who
takes for value and without notice as against the prior
ing the records to see how it will 37; McGuire v. Barker, 61 Ga.
affect other persons. Taylor's 339; Sanborn v. Adair, 29 N. J.
Ex'rs V. Maris, 5 Rawle (Pa.) 51. Eq. 338; Swanstrom v. Washing-
10. See Digman v. McCoUum, ton Trust Co., 41 Wash. 561;
47 Mo. 372. And ante, § 566(c). Webb, Record of Title, § 13, 166.
11. 1 Stimson's Am. St. Law, § But Houlahan v. Finance Consol.
1611. See Simmons v. Stum, 101 Min. Co., 34 Colo. .^65, 82 Pac.
111. 454; Clabaugh v. Byerly, 7 484; Brookfield v. Goodrich, 32
Gill (Md.) 354, 48 Am. Dec. 575; 111. 363; Simmons v. Stum, 101
Drake v. McLean, 47 Mich. 102, 111. 454 are to the effect that even
10 N. W. 126; Westbrook v. Glea- though the statute does not in
son, 79 N. Y. 23; Pennsylvania terms require the later convcy-
Salt Mfg. Co. V. Neel, 54 Pa. St. 9. ance to be first recorded thin is
12. Steele v. Spencer, 1 Pet. necessary in order that it bo
(U. S.) 552, 7 L. Ed. 259; Miller given priority.
V. Merine, 43 Fed. 261; Coster's 13. Webb, Record of Title, §§
Ex'rs V. Bank of Georgia, 24 Ala. 13-15, 165-167.
2204 Real Property. [§ 567
unrecorded conveyance, it being said that ^'wliere,
through the neglect of the first grantee to record his
deed, a subsequent party has been led to part with a
valuable consideration, a race for registry between the
two does not afford a proper criterion by which their
rights should be determined." There is considerable
force in this view, but as a practical matter a ''race for
registry" is not likely to occur, since ordinarily each
party is ignorant of the conveyance to the other, and
the subsequent purchaser can ordinarily protect him-
self against the possible subsequent record of a prior
conveyance by promptly recording his own conveyance.
There does not seem to be any particular injustice in
confining the benefit of the recording acts to those sub-
sequent purchasers who act promptly in placing their
conveyances or contracts upon the records, although
such a provision involves, to some extent, a departure
from the theory that a purchaser is to be protected from
a prior unrecorded conveyance because he is in effect
a purchaser without notice thereof. Such a provision
has a beneficial operation as encouraging the prompt
record of conveyances, since no grantee can feel as-
sured that a prior conveyance, unknown to him, may
not be filed for record after the time of his purchase,
and before he files his own, unless he does this im-
mediately.
Claimant under quitclaim deed. In a very
considerable number of jurisdictions it has been decided
that the grantee under a ''quitclaim deed" is entitled,
to the same extent as the grantee in any other convey-
ance, to the protection of the recording laws as against
a prior unrecorded conveyance. ^^ These decisions are
usually in terms based upon the broad and inclusive
language of the recording law^s and sometimes upon the
14. Henry Wrape Co. v. Cox, Pac. Ill; Marshall v. Pierce, 13
122 Ark. 445, 183 S. W. 955; Frey Ga. 543, 71 S. E. 893; Reed r.
V. Clifford, 44 Cal. 335; Kelsey McConnell. 5 111. 117; Smith v.
V. Norris, 53 Colo. 306, 125 McClaiu, 146 Ind. 77, 45 N. B. 41;
§ 567]
Priorities and Eecording.
2205
fact that what is ordinarily known as a quitclain] deed,
that is, a deed which in terms conveys only the grantor's
right title and interest in certain property, v/ithout
covenants of title, does not, in that jurisdiction, diifer
in its nature and operation from one in terms convey-
ing the property itself.^^ In some states, however, a
different view has been adopted, that a purchaser under
a quitclaim deed cannot claim as a bona fide purchaser
for value, as against a prior unrecorded deed, or at least
that he is put on inquiry, b}' the form of the convey-
ance, as to possible defects in his grantor's title. ^^ In
support of this view two reasons have been given. One
is that the fact that the vendor offers a conveyance in
this form is sufficient to raise a suspicion in the mind
of the purchaser that the title is defective. As to this,
however, it may well happen that the vendor prefers
this form with an absence of covenants for title, merely
Eger V. Brown, 77 Kan. 510, 15
L. R. A. (N. S.) 459, 94 Pac.
803; Williams v. White Castle
Lumber & Shingle Co., 114 La.
448, 38 So. 414; Dow v. Whitney,
147 Mass. 1, 16 N. E. 722; Fox
V. Hall, 74 Mo. 315, 41 Am. Rep.
316; Schlott v. Dosh, 49 Neb. 187,
59 Am. St. Rep. 531, 68 N. W.
386; Brophy Min. Co. v. Mining
Co., 15 Nev. 101; Wilhelm v. Wil-
ken, 149 N. Y. 447, 52 Am. St. Rep.
743, 32 L. R. A. 370, 44 N. E. 82;
Morris v. Daniels, 35 Ohio St.
406; Babcock v. Wells, 25 R. I.
23, 105 Am. St. Rep. 848, 54 Atl.
596; Shutz v. Tidrick, 26 S. D.
505, 128 N. W. 811; Campbell v.
Home Ice & Coal Co., 126 Tenn.
524, 150 S. W. 427; Cutler v.
James, 64 Wis. 178, 54 Am. Rep.
606, 24 N. W. 874; Eyanson v.
Waidlich, 57 Wash. 234, 106 Pac.
746; Ellison v. Torpin, 44 W. Va.
414, 30 S. E. 183; Olmstead v.
McCrory. 158 Wis. 323, 148 N.
2 R. P.— 64
W. 87; Moelle v. Sherwood. 148
U. S. 21, 37 L. Ed. 350; United
States V. California & O. Land
Co., 148 U. S. 31, 37 L. Ed. 354;
Boynton v. Haggart, 57 C C. A.
301, 120 Fed. 819.
That a sheriff's conveyance of
"all the right, title, and interest"
of the execution debtor in certain
described land is effective as
against a prior unrecorded con-
veyance by the debtor, see Wood-
ward V. Sartwell, 129 Mass. 210,
and Parker v. Prescott, 87 Me.
444, 32 Atl. 1001.
15. See cases cited post, this
section, note 21.
16. Wood V. Holly Mfg. Co.,
100 Ala. 326, 46 Am. St. Rep.
56, 13 So. 948; Townley v. Corona
Coal & Iron Co.,— Ala.— . 77 So.
1; Snow V. Lake, 20 Fla. 656. 51
Am. St. Rep. 625; Steel v. Sioux
Val. Bank, 79 Iowa, 339. 7 L. R.
A. 524, 18 Am. St. Rep. 370. 44
N. W. 564; Hannen v. Sciden-
2206 Real Pbopeety. [§ 567
because he knows nothing about the title, or because,
though believing the title good, he prefers not to as-
sume any resiDonsibility, and it seems hardly proper to
say that this preference on the vendor's part is calcu-
lated to raise a suspicion on the purchaser's part of a
defect in the title.^^ Indeed, as has been forcibly sug-
gested by an able writer, the fact that a purchaser ac-
cepts a quitclaim deed without covenants of title, tends
to indicate his contidence in the title, while his insist-
ence on such covenants might well indicate the con-
trary.^^ It is, moreover, very questionable whether the
fact that the grantee in a conveyance has reason to sus-
pect that the grantor has doubts as to the validity of
the title should of itself preclude him from claiming as
a bona fide purchaser for value, he having no clue by
the aid of w^hich to determine the propriety of the grant-
or's doubts.
The other reason given for the view that a "quit-
claim deed" does not take priority of a prior unre-
corded conveyance, is that by a quitclaim deed one un-
dertakes to convey only his right or interest in the
property, whatever that may be, and that it consequent
ly passes only such interest as may remain to him after
the execution of the first conveyance, and can pass no
interest as against this latter, although this is not rc-
topf, 113 Iowa, 658, 86 N. W. 44; 74 Tex. 453, 15 Am. St. Rep. 850,
Lasley v. Stout, 90 Kan. 712, 136 12 S. W. 67.
Pac. 249; Reed v. Knights, 87 17. See opinion of Field, J., in
Me. 181, 32 Atl. 870; Peters v. Moelle v. Stierwood, 148 U. S. 21,
Cartier, 80 Mich. 124, 20 Am. St. 37 L. Ed. 350; Babcock v. Wells,
Rep. 508, 45 N. W. 73; Backus 25 R. I. 23, 105 Am. St. Rep.
V. Cowley, 162 Mich. 585, 127 N. 848, 54 Atl. 596.
W. 775; McAdow v. Black, 6 18. Rawle, Covenants for Title,
Mont. 601, 13 Pac. 377; Wetzstein § 29. See Schott v. Dosh, 49 Neb.
V. Largey, 27 Mont. 212, 70 Pac. 187, 59 Am. St. Rep. 531, 68 N.
717; Muller x. McCann, 50 Okla. W. 346; Babcock v. Wells, 25
710, 151 Pac. 621; Fowler v. Will, R. I. 23, 105 Am. St. Rep. 848,
19 S. D. 131, 117 Am. St. Rep. 54 Atl. 596; Wilhelm v. Wilken,
9.-58, 8 Ann. Cas. 1093, 102 N. 149 N. Y. 447, 32 L. R. A. 370,
W. 598; Garrett v. Christopher, 52 Am. St. Rep. 743, 44 N. E. 82.
§ 567] Priorities and Eecording. 2207
corded. The soundness of this reason for the view in-
dicated appears to be beyond question, provided it be
conceded that the deed was intended, not as a convey-
ance of the property as such, but as a dis])osition mere-
ly of what interest the grantor had therein, subject, as
it w^ere, to any prior conveyance made by him or another
in the chain of title. If a conveyance is to be con-
strued as equivalent to a conveyance of "such interest
as I ma}^ now have" or of "such interest as I have not
disposed of,"^*' the grantee therein cannot well claim
any interest which has been previously disposed of by
the grantor, whether the previous conveyance was or
was not recorded, and if the previous conveyance dis-
posed of all the grantor's interest, the later convey-
ance would be nugatory. Whether a conveyance in the
form of a quitclaim deed is thus to be limited in its
operation is a question, it seems, of the intention of the
parties thereto, to be determined by a construction of
the language used with reference to the circumstances
of its execution, including the usage of the community
as to the employment of such deeds. This view has
been clearly expressed in occasional decisions.-*^
The view expressed in some of the decisions up-
holding the priority of the subsequent quitclaim deed,
that such a deed is in its operation and effect equiva-
lent to a deed of grant or of bargain and sale,^^ does
19. As, for instance, a con- • topher, 74 Tex. 435, 15 Am. St.
veyance of "Juch interest only as Rep.. 850, 12 S. W. 67; Cutler
they (the grantors) now have, v. James, 64 Wis. 173, 54 Am.
whatever that may be." Virginia Rep. 603, 24 N. W. 874. And see
& T. Coal & Iron Co. v. Fields, Hooper v. Leavitt, 109 Me. 70, 82
94 Va. 102, 26 S. E. 426. And Atl. 547; Schmittou v. Dunham,
see Mason v. Black, 87 Mo. 329; —Tex. Civ. App.— , 142 S. W. 941;
Stephen Putney Shoe Co. v. Rich- Gallup v. Harding, 241 Fed. 858,
mond, F. & P. R. Co., 116 Va. 154 C. C. A. 560.
211, 81 S. E. 93; Eaton v. Trow- 21. Robinson v. Clapp, 65
bridge, 38 Mich. 454. Conn. 365, 29 L. R. A. 582, 32
20. Brown v. Banner Coal Co., Atl. 939; Frey v. Clifford, 44
97 111. 214, 37 Am. Rep. 103; Cal. 335; Brown v. Banner etc..
Cook v. Smith, 107 Tex. 119, 174 Co., 97 111. 214, 37 Am. Rep. 105;
S. W. 1094; Garrett v. Chris- Babcock v. Wells, 25 R. I. 23, 105
2208 Eeal Property. [§ 567
not necessarily conflict with the view, above expressed,
that it is a question as to what is the meaning of the
language used. The courts rendering these decisions
would hardly assert that a deed might not be so phrased
as to pass only such rights as the grantor actually has,
that is, to transfer merely a chance of the title, and
these decisions merely assert in etfect, it would seem,
that the fact that a conveyance is in the ordinary form
of a quitclaim deed does not of itself show an inten-
tion merely to relinquish such claim or title ss the
grantor may have. And the same may be said of the
statutory provisions which are in force in some states,
making a quitclaim deed equivalent to a deed of grant
or bargain and sale.^^ These do no more, it would
seem, than create a presumption that such a deed is not
to be given a limited effect. But a conveyance in terms
of ''such interest or title as I now have," though it
might properly be denominated a quitclaim deed, would
presumably, even in those states, not take priority over
a prior unrecorded conveyance by the same grantor.
Neither such a statute, nor a statute invalidating an
unrecorded conveyance as against a subsequent pur-
chaser, could well give priority to a person who under-
takes to purchase merely what the vendor has not pre-
viously disposed of, and so give to the conveyance an
operation not intended by the parties.
The tendency of the courts is no doubt in favor of
the view that the purchaser under a quitclaim deed is
entitled to protection as against a prior unrecorded
deed, a tendency which has become much more marked
since the United States Supreme Court adopted this
Am. St. Rep. 848, 54 Atl. 596; Lynn, 38 Minn. 315, 37 N. W. 448,
Southern Ry. v. Carroll, 86 S. C. it was held that such a statute
56, 138 Am. St. Rep. 1017, 67 S. gave the grantee in a quitclaim
E. 4. deed the right to claim as a
22. See Chapman v. Sims, 53 6ona fide purchaser, a previous
Miss. 154; Smith v. McClain, 146 decision denying such right to
Ind. 77, 45 N. E. 41; Cutler v. him (Marshall v. Roberts, 18
James, 64 Wis. 173, 54 Am. Rep. Minn. 405) having been rendered
693, 24 N. W. 874. In Strong v. before the adoption of the statute.
§ 567] Priorities and Eecording. 2209
view,^'^ repudiating prior dicta in that court to the con-
trary. That the view favored by the later decisions
works in favor of justice and the security of titles
seems sufficiently apparent. That one takes a convey-
ance of the grantor's "right, title and interest" in cer-
tain property, rather than of the property itself, does
not, as a matter of fact, ordinarily indicate that the pur-
chaser intends to take, not a title such as appears on
the records, but a mere chance of a title, subject to any
unrecorded conveyances that may have been made by
the grantor, and it does not seem desirable that the
courts should, by reason of the use of that language,
impute such an intention.
In some of the states, while priority is accorded to
a bona fide purchaser holding under a quitclaim deed,
the view has nevertheless been expressed that the fact
that one accepts a quitclaim is evidence tending to show
a lack of good faith.^^-*^ But, as is remarked above,
it appears most questionable whether, as a practical
matter, this can properly be regarded as indicative
of bad faith.-'
It has usually been assumed, and there are express
decisions to that effect, that, even if the grantee in a
quitclaim deed cannot claim protection as a bona fide
purchaser, a purchaser from him for value holding
under a warranty deed can so claim. That, in other
words, one may be a bona fide purchaser although a
quitclaim deed occurs in his vendor's chain of title.^^
23. MoeUe v. Sherwood, 148 U. Records & Breen, 165 Iowa, 134,
S. 21, 37 L. Ed. 350. 144 N. W. 336; Lasley v. Stout,
24-26. Moore v. Morris, 118 90 Kan. 712, 136 Pac. 249.
Ark. 516, 177 S. W. 6; Ennis v. 27. Ante, this section, note 18.
Tucker, 78 Kan. 55, 130 Am. St. 28. United States v. California
Rep. 352. 96 Pac. 140; Schott v. & O. Land Co., 148 U. S. 31, 37
Dosh. 49 Neb. 187, 59 Am. St. L. Ed. 354; Stanley v. Schwalby,
Rep. 531, 68 N. W. 386; Lowry 162 U. S. 255, 40 L. Ed. 960;
V Brown, 1 Cold. (Tenn.) 456. See Meikel v. Border, 129 Ind. 529,
McDonald v. Belding, 145 U. S. 29 N. E. 29; Winkler v. Miller,
492, 36 L. Ed. 788; Mansfield v. 54 Iowa, 476, 6 N. W. 698;
Dyer, 131 Mass. 200; Boileau v. Hannan v. Seidentopf, 113 Iowa,
2210 Real Property. [§ 567
The reason ordinarily asserted for this view is that
otherwise the occurrence of one quitclaim deed in a
chain of title would to a great extent render the title
unmarketable. But it is difficult to see how, if a quit-
claim deed is insufficient to give a good title to the
grantee therein, as against a prior unrecorded convey-
ance, such grantee can give a good title to another, and
thereby divest the rights of the grantee under the prior
conveyance. The practical necessity, if it be so re-
garded, of protecting a subsequent claimant under the
grantee in the quitclaim deed, tends strongly to indicate
the propriety of protecting the grantee himself.
A conveyance purporting to convey land by a gen-
eral description, such as "all my land," or ''all the land
which I have," or "all which I now have," in a certain
place, has been held not to take precedence of a prior
unrecorded conveyance of particular land in such place,
the language used, construed in connection with the sur-
rouiiding circumstances, showing an intention to con-
vey only such land as the grantor still retains.^^
659, 86 N. W. 44; Rich v. Downs, Persons Unknown, 43 Me. 432;
81 Kan. 43, 25 L. R. A. (N. S.) Fitzgerald v. Libby, 142 Mass.
1035, 105 Pac. 9, and note; Cul- 235, 7 N. E. 917; Ames v. Robert,
bertson v. H. Witbeck Co., .92 17 N. M. 609, 131 Pac. 994; Mc-
Mich. 469, 52 N. W. 993; Otis Namara Syndicate v. Boyd, 112
V. Kennedy, 107 Mich. 312, 65 N. Va. 145, 70 S. E. 694; See Hen-
W. 219; Marston v. Catterlin, 270 derson v. Armstrong, 128 Ga. 804,
Mo. 5, 192 S. W. 413; Snowden 58 S. E. 624; Buttergeld v.
V. Tyler, 21 Neb. 199, 31 N. W. Smith, 11 111. 485; Brown v.
661; Martin v. Ragsdale, 71 S. Banner, etc., Co., 97 111. 214,
C. 67, 50 S. E. 671; Campbell v. 37 Am. Rep. 105. In Hethering-
Home Ice & Coal Co., 126 Tenn. ton v. Clark, 30 Pa. St. 393, the
524, 150 S. W. 427. And see question whether such a con-
Brown V. Nelms, 86 Ark. 368, 112 veyance was intended to convey
S. W. 373. But see to the con- only such land as the grantor
trary Schmidt v. Musson, 20 S. D. still retained was regarded as a
389, 107 N. W. 367; Cook v. question for the jury. In Garner
Smith. 107 Tex. 119, 174 S. W. v Boyle, 97 Tex. 460, 79 S. W.
1094, 1095; Muller v. McCann, 50 1066, it was considered that such
Okla. 710, 151 Pac. 621 (semble). a conveyance passed all land
29. Callanan v. Merrill, 81 which on the records appeared
Iowa, 73, 46 N. W. 753; Coe v. to belong to the grantor, an uu-
§ 567] Prioeities and Eecording. 2211
Purchaser from heir or devisee. It has oc-
casionally been decided that a purchaser from an heir
or devisee takes subject to a conveyance by the ancestor
which was not recorded, on the theory that the convey-
ance being valid as against the ancestor, he retained no
interest which could pass to the heir or devisee and con-
sequently the latter 's grantee acquired nothing,^^ But
usually it has been held, more consistently, it would seem,
with the policy of the recording laws, that a purchaser
from an heir or devisee is, like a purchaser from any
other person, entitled to rely upon the title as it appears
of record. ^^
Purchaser of equitable interest. To what ex-
tent one who acquires an equitable interest is entitled
to take advantage of the failure to record an instru-
ment earlier in date, as giving him priority over the
earlier instrument, would properly depend on whether
the person acquiring the equitable interest could be re-
garded as a purchaser or incumbrancer such as the
statute undertakes to protect. In several cases the pur-
chaser of an equitable interest has been regarded as en-
titled to protection as against a prior unrecorded convey-
ance,^- while in one or two states the right to take ad-
recorded conveyance being regard- Mass. 491; First Nat. Bank of
ed as non existent. And see Durand v. Phillpotts, 155 Mich.
Cook V. Smith, 107 Tex. 119, 174 331, 119 N. W. 1; Youngblood
S. W. 1094. V. Vastine, 46 Mo. 239; Powers
30. Hill V. Meeker, 24 Conn. v. McFerran, 2 Serg. & R. (Pa.)
211; Hancock v. Beverly's Heirs, 47; McCulloch's Lessee v. Eudaly,
6 B. Men. (Ky.) 531; See Hender- 3 Yerg. (Tenn.) 346; Holmes v.
son V. Armstrong, 128 Ga. 804, 58 Johns, 56 Tex. 41; Keenon v.
S. E. 624. The Kentucky rule in Burkhardt, — Tex. Civ. App. — ,
this regard was changed by stat- 162 S. W. 483; Memphis Land &
ute. See Dozier v. Barnett, 13 Timber Co. v. Ford, 58 Fed. 452,
Bush (Ky.) 457. 7 C. C. A. 304.
31. Hallett v. Alexander, 50 32. Weston v. Dunlap, 50 Iowa,
Colo. 37, 34 L. R. A. (N. S.) 328, 185; United States Insur. Co. v.
Ann. Cas. 1912B, 1277, 114 Pac. Shiver, 3 Md. Ch. 381; General
490, 491; Kennedy v. Northup, 15 Insur. Co. v. United States Insu.r
in. 148; McClure v. Tallman, 30 Co., 10 Md. 517; Tarbell v. West.
Iowa, 515; Earle v. Fiske, 103 86 N. Y. 280; Trogden v. Wil-
2212 Eeal Peopeety. [§ 567
vantage of the failure to record is apparently confined
exclusively to purchasers of the legal title. ^^
Lessees. The question whether a lessee is
within the protection of the recording statute, so as to
be able to assert the failure to record a prior convey-
ance, is one which is not calculated to arise, since a
lessee, agreeing merely to pay a periodical rent, as is
usually the case, could not well be regarded as a pur-
chaser for value. If, however, he does pay value, he
may come within the protection accorded to purchasers
for value, the fact that the estate acquired by him being
for years only instead of in fee simple being immate-
rial.^*
Claimant under judicial decree. In at least
one state it has been decided that one taking title by
judicial decree is to be regarded as a purchaser for the
purpose of receiving protection under the recording
acts as against a prior unrecorded conveyance.^^
Creditors. The recording acts, in many juris-
dictions, in terms invalidate an unrecorded instrument
only as against a subsequent purchaser or mortgagee,
and consequently a creditor of the grantor cannot assert
a claim in priority over the grantee by reason of the
failure to record, except so far as the failure to record
may operate, under the doctrine of estoppel by repre-
sentation, to j^reclude the grantee from asserting his
title as against such creditor's claim.^^ In some juris-
dictions, however, the statutes expressly require a con-
liams, 144 N. C. 192, 10 L. R. A. 34. That a lease is a "con-
N. S. 867, 56 S. E. 865 (semble); veyance" within the protection of
Bellass v. McCarty, 10 Watts, the recording act, see Waskey v.
(Pa.) 13; Rhines v. Baird, 41 Pa. Chambers, 224 U. S. 564, 56 L.
256; Batts v. Scott, 37 Tex. 59; E 885. Contra, Topping v.
Preston v. Nash, 76 Va. 1. Parish, 96 Wis. 378, 71 N. W.
33. Combs v. Nelson, 91 Ind. 367.
123; Wailes v. Cooper, 24 Miss. 35. Wilkins v. McCorkle, 112
208; Dedeaux v. Cuevas, 107 Tenn. 688, 80 S. W. 834.
Miss. 7, 64 So. 844. 36. Ante, § 546, note 80a.
§ 568] Peiorities and Recording. 2213
veyance or mortgage to be recorded in order that it
may be effective as against creditors of the grantor or
mortgagor as well as against subsequent purchasers.^"'^
Such a statute, in terms protecting creditors against un-
recorded instruments, is ordinarily construed as pro-
tecting only such creditors as have, by attachment or
judgment, acquired a lien on the property,^* though oc-
casionally the statute is given a broader effect, in favor
of general creditors.^^ The usual construction of the
statutes, as not applying to general creditors unless the
language clearly shows an intention to that effect, is
based on the theory that the purchaser, in failing to
record his deed, has done merely what the creditor has
done, unduly trusted the grantor, and that the equity
of the creditor is no higher than that of the purchaser
under the unrecorded deed, who, if deprived of the prop-
erty, would also be a creditor of the grantor.
Ordinarily the statutes are construed to protect
creditors as to such claims only as were created after
the execution of the instrument in question, it being
considered that, as regards claims which existed pre-
viously, they could not have suffered by reason of
the failure of the record to show the true state of the
title.-'«
§ 568. Notice as substitute for recording. Of the
statutes in reference to the recording of conveyances,
37. The provisions of the re- gent v. Priebastch, 61 Miss. 402;
cording acts, as regards their King v. Fraser, 23 S. C. 543;
operation in favor of creditors, Grace v. Wade, 45 Tex. 522.
are conveniently summarized in 39. See e. g., Sixth Ward
a note in 13 Columbia Law Rev. Building Ass'n v. Willson, 41
at p. 539. Md. 506; Henderson v. McGheo,
38. See McGhee v. Importers' 6 Heisk. (Tenn.) 55.
& Traders' Nat. Bank. 93 Ala. 40. See, e. g., Clift v. Williams,
192, 9 So. 734; Martin v. Dry- 105 Ky. 559, 49 S. W. 328; Dyson
der, 6 111. 187; Campbell v. v. Simmons, 48 Md. 207; Brown
Remaly, 112 Mich. 214. 67 Am. v. Brabb, 67 Mich. 17, 11 Am. St.
St. Rep. 393, 70 N. W. 432; Hall Rep. 549, 34 N. W. 403. Contra,
V. Sauntry, 72 Minn. 420, 71 Am. Price v. Wall, 97 Va. 334, 75
St. Rep. 497, 75 N. W. 720; Nu- Am. St. Rep. 788, 33 S. E. 599.
2214 Eeal Peopekty. [§ 568
some provide that a conveyance, if not recorded, shall
be invalid as against a subsequent purchaser without
notice, some, that it shall be invalid as against a bona
fide purchaser or purchaser in good faith, and some
omit any reference to the matter of notice or good faith.
The statutes almost invariably, however, without refer-
ence to the particular language used, have received the
same construction, as affording protection to a subse-
quent purchaser only when he is without notice of the
unrecorded conveyance.^ ^ This appears to be merely a
logical result of the construction put upon the record-
ing acts, as making the record of an instrument equiva-
lent to notice thereof on the part of a subsequent pur-
chaser, since this construction implies that notice other-
wise obtained will have the same effect.^^ In a con-
siderable number of cases, however, the rule that notice
obtained otherwise than from the record excludes a pur-
chaser from the protection of the act, is based upon the
theory that one taking a conveyance with the purpose
of impairing prior rights in another of which he has
notice is guilty of fraud,'*"' a view which was originally
adopted from the decisions of the English courts in
connection with the local registration acts of that coun-
try.''^
41. See cases cited, 24 A. & E. this is so in the case of a con-
Encyc. Law (2d Ed.) 131; 2 veyance as well as a mortgage.
Pomeroy, Eq. Jur. § 649; Webb, Quinnerly v. Quinnerly, 114 N.
Pvecord of Title, § 201; 2 White C. 145, 19 S. E. 99; Moore v.
& T. Lead. Cas. Eq., Judge Hare'^ Johnson, 162 N. C. 266, 78 S. E.
notes, 213. Occasionally the stat- 158; Allen v. Roanoke Railroad
ute has been construed as so & Lumber Co., 171 N. C. 339, 88
absolutely requiring the record S. E. 492. As also in Louisiana,
of a mortgage as to make it McDuffie v. Walker, 125 La. 152,
invalid, if not recorded, even as 51 So. 100; Somat v. Whitmer,
against a subsequent purchaser 141 La. 235, 74 So. 916.
having actual notice thereof. May- 42. 2 Pomeroy, Eq. Jur. §
ham v. Coombs, 14 Ohio, 428; 665.
Building Ass'n v. Clark, 43 Ohio 43. 2 Pomeroy, Eq. Jur. §§
St. 427, 2 N. E. 846; Dodd v. 659, 660; 2 White & T. Lead. Cas.
Parker, 40 Ark. 536; Moore v. Eq. 213; Webb, Record of Title,
OUson, 105 Ark. 241, 150 S. W. § 215.
1028. And in North Carolina 44. See Le Neve v. Le Neve,
^ 569]
Pkiorities and Eecoeding.
2215
Xotice of one defect in a title is obviously not suf-
ficient to charge one with notice of an entirely different
defect.^^
In states in which lien creditors are protected as
against an unrecorded conveyance,^^ the protection does
not ordinarily exist if the creditor, at the time of ac-
quiring the lien, had actual or constructive notice of the
convevance.^''^
§ 569. Information putting on inquiry. In most
states it is sufficient, in order to deprive a person of the
right to claim as against a prior unrecorded convey-
ance, that he has either actual knowledge of such con-
veyance, or that he has information sufficient to put him
on inquiry in regard to such conveyance,"*^ and this con-
Ambl. 436, 1 Ves. Sr. 64; Webb,
Record of Title, § 215.
45. Koons v. Grooves, 20 Iowa,
373; Thompson v. Lapsley, 90
Minn. 318, 96 N. W. 788; Ruther-
ford Land & Improvement Co. v.
Sanntrock, (N. J. Ch.), 44 Atl.
938, aff'd 60 N. J. Eq. 471, 46
Atl. 648; Todd v. Eighmie.
10 N. Y. App. Div. 142, 41 N. Y.
Supp. 1013; Allen v. Anderson &
Anderson (Tex. Civ. App.), 96 S.
W. 54.
4,6. Ante, § 567m, note 38.
47. Richards v. Steiner, 166
Ala. 353, 52 So. 200; O'Rourke
v. O'Connor. 39 Cal. 442; West-
ern Chemical Mfg. Co. v. Mc-
Caffrey, 47 Colo. 397, 107 Pac.
1081; McAdow v. Wachob, 45 Fla.
482, 33 So. 702; Feinberg v.
Stearns, 56 Fla. 279, 131 Am.
St. Rep. 119, 47 So. 797; Van
Gundy v. Tandy, 272 lU. 319, 111
N. E. 1020; Baldwin v. Crow,
86 Ky. 679, 7 S. W. 146; Stan-
hope V. Dodge, 52 Md. 483; Priest
V. Rice, 1 Pick. (Mass.) 164, 11
Am. Dec. 156; Northwestern Land
Co. V. Dewey, 58 Minn. 359, 59
N. W. 1085; Loughridge v. Bow-
land, 52 Miss. 546; Hutchinson
V. Bramhall, 42 N. J. Eq. 372, 7
Atl. 873; Ildvedsen v. First State
Bank of Bowbells, 24 N. D. 227,
139 N. W. 105; Britton's Appeal,
45 Pa. St. 172; Brown v. Sartor,
87 S. C. 116, 69 S. E. 88; Frei-
berg V. Magale, 70 Tex. 116, 7 S.
W. 684.
But that notice to the creditor
is immaterial, see Edwards v.
Brinker, 9 Dana (Ky.) 69; May-
ham V. Coombs, 14 Ohio, 428;
Lookout Bank v. Noe, 86 Tenn. 21,
5 S. W. 433; Dobyns v. Wraing,
82 Va. 159.
48. Thompson & Ford Lumber
Co. V. Dillingham, 223 Fed. 1000,
139 C. C. A. 376; Gamble v. Black
Warrior Coal Co., — Ala. — , 55
So. 190; White v. Moffett, 108
Ark. 490, 158 S. W. 505; Lawton
V Gordon, 37 Cal. 202; Bradford
V Carpenter, 13 Colo. 30, 21 Par.
908; Hunt v. Dunn, 74 Ga. 120;
2216
Real Property.
[§ 569
structioii has usually been given to statutes which
provide that an unrecorded conveyance shall be void
except as against persons having "actual notice."-*^
But in one state at least such a statutory require-
ment of "actual notice" has been held to involve
the necessity of actual knowledge of the prior con-
veyance.^'^ That information sufficient to put one
on inquiry in regard to an adverse right is prima
facie sufficient to charge one with notice of such
right is a principle well settled in equity, without refer-
ence to the recording acts, and the question as to what
constitutes such information in connection with these
acts, when actual knowledge is not required, is deter-
mined by an application of equitable considerations.
Erickson v. Rafferty, 79 111. 209;
Young V. Wiley (Ind. App.), 72
N. E. 54; Clark v. Holland, 72
Iowa, 34, 2 Am. St. Rep. 230, 33
N. W. 350; Price v. McDonald,
1 Md. 403, 54 Am. Dec. 567;
Baldwin v. Anderson, 103 Miss.
462, 60 So. 578; Lyon v. Gom-
bert, 63 Neb. 630, 88 N. W. 774;
Nute V. Nute, 41 N. H. 60; Wil-
liamson V. Brown, 15 N. Y. 354;
Doran v. Dazey, 5 N. D. 167, 57
Am. St. Rep. 550, 64 N. W. 1023;
Brooks V. Reynolds, 37 Okla. 767,
132 Pac. 1091; Musgrave v. Bon-
ser, 5 Ore. 313, 20 Am. Rep.
737; Alexander v. Fountain, 195
Ala. 3, 70 So. 669; Hingtgen v.
Tbackery, 23 S. D. 329, 121 N.
W. 839; LeVine v. Whitehouse,
37 Utah, 260, Ann. Cas. 1912C,
407, 109 Pac. 2; Lamoille County
Sav. Bank & Trust Co. v. Belden,
90 Vt. 535, 98 Atl. 1002.
49. Hamilton v. Fowkes, 16
Ark. 340; Pope v. Nichols, 61
Kan. 230, 59 Pac. 257; Farris
V. Finnup, 84 Kan. 122, 113 Pac.
407; Knapp v. Bailey, 79 Me.
195, 1 Am. St. Rep. 295, 9 Atl.
122; Maupin v. Emmons, 47 Mo.
304; Drey v. Doyle, 99 Mo. 459,
12 S. W. 287; Creek Land & Imp.
Co. V. Davis, 28 Okla. 579, 115
Pac. 468; Rector v. Wildrick, —
Okla. — , 158 Pac. 610; Musgrovo
V. Bonser, 5 Ore. 313, 20 Am.
Rep. 737; Manigault v. Lofton,
78 S. C. 499, 59 S. E. 534; Tol-
land V. Corey, 6 Utah, 392, 24
Pac. 190; Brinkman v. Jones,
44 Wis. 498.
50. Pomroy v. Stevens, 11
Mete. (Mass.) 244; Lamb . v.
Pierce, 113 Mass. 72; Toupin v.
Peabody, 162 Mass. 473, 39 N. E.
280. See Crassen v. Swoveland,
22 Ind. 427; Wade, Notice, § 14;
2 White & Tudor, Leading Cas.
Eq. Amer. Notes, 218.
In Ohio it was held that when
the statute made an unrecorded
conveyance invalid as against a
subsequent bona fide purchaser
having "no knowledge" of such
conveyance, the fact that he
took under circumstances suffi-
cient to put him on inquiry as
§ 569]
Peiobities and. Recording.
2217
The information thus sufficient to put one on in-
quiry may consist of a statement made by the claimant
of the adverse right,^^ or by a third person not pecuni-
arily interested, if he is in a position to know the facts,
and his statement is definite. ^^ The information must
be sufficient to furnish a basis for investigation, and a
mere rumor or indefinite statement that there is an ad-
verse claim is not sufficient to put one on inquiry.^"
Knowledge by the purchaser of the condition of the
land, as by the presence of structures thereon, may be
sufficient to put him on inquiry as to whether this does
not indicate the existence of some adverse right or ease-
ment.^^ The fact that a purchaser obtains the property
at a very inadequate price is also, it is usually consid-
ered, a fact which should put him on inquiry as to the
to such conveyance did not cause
him to take subject thereto.
Varwig v. Cleveland, C, C. & St.
L. R. Co., 54 Ohio St. 455, 44
N. E. 92.
51. Davis V. Kennedy, 105 111.
300; Nelson v. Sims, 23 Miss.
383, 57 Am. Dec. 144; Epley v.
Witherow, 7 Watts (Pa.) 163;
Bell V. Bell, 103 S. C. 95, 87 S.
B. 540.
52. Lawton v. Gordon, 37 Cal.
202; Cox V. Milner, 23 111. 476;
Curtis V. Mundy, 3 Mete. (Mass.)
405; Jackson, L. & S. R. Co. v.
Davison, 65 Mich. 416, 32 N. W.
726; Jaeger v. Hardy, 48 Ohio
St. 335, 27 N. E. 863; Butcher
V. Yocum, 61 Pa. St. 168, 100
Am. Dec. 625; Martel v. Somers,
26 Tex. 551; Pocahontas Tan-
ning Co. V. St. Lawrence Boom
& Manufacturing Co., 63 W. Va.
685. 60 S. E. 890. See 2 Pome-
roy Eq. Jur. §§ 600-612.
53. Tompkins v. Henderson,
83 Ala. 391, .? So. 774; Smith
v. Yule. 31 Cal, 180, 89 Am, Dec.
167; Hopkins v. O'Brien, 57 Fla.
444, 49 So. 936; City of Chicago
V. Witt, 75 111. 211; Buttrick
V. Holden, 13 Mete. (Mass.)
355; Shepard v. Shepard, 36
Mich. 173; Loughridge v. Bow-
land, 52 Miss. 546; Condit v.
Wilson, 36 N. J. Eq. 370; Ray-
mond V. Flavel, 27 Ore. 219, 40
Pac. 158; Maul v. Rider, 59 Pa.
St. 167; Martel v. Somers, 26
Tex. 551.
54. Webb v. Robbins, 77 Ala.
176; Fresno Canal & Irrigation
Co. V. Rowell, 80 Cal. 114, 13
Am. St. Rep. 112, 22 Pac. 53;
Pollard V. Rebman, 162 Cal. 633,
124 Pac. 235; Blatchley v. Os-
born, 33 Conn. 226; New York
N. H. & H. R. Co. V. Russell, 83
Conn. 581, 78 Atl. 324; Ashel-
ford V. Willis, 194 111. 492. 62 N. E.
817; Joseph v. Wild, 146 Ind. 249,
45 N. E. 467; Brown v. Honey-
field, 139 Iowa, 414, 116 N. W.
731; Kamer v. Bryant, 103 Ky.
723; 46 S. W. 14; Illinois Cent. R.
Co. V. Sanders, 93 Miss. 107, 46
2218
Eeax. Pkopeety.
[§ 569
possible existence of an adverse claim.^^ As is, it has
been decided, knowledge on his part that one under
whom his grantor claims acquired the property at an
exceedingly inadequate price.^*'
If one put on inquiry makes such investigation as
may reasonably be demanded of a person of ordinary
diligence and understanding, and fails to ascertain the
existence of the adverse claim, any inference of notice
is rebutted.^'''
One is, it has been held, not charged with notice of
an adverse claim by the fact that there are circum-
stances sufficient to put him on inquiry in reference
thereto, and that he makes no inquiry, if inquiry by him
would necessarily have been futile. ^^ The circumstances
So. 241; Seng v. Payne, 87 Neb.
812, 128 N. W. 655; Day, Wil-
liams & Co. V. Atlantic & G. W.
R. Co., 41 Ohio St. 392; Mc-
Dougal V. Lame, 39 Ore. 212, 64
Pac. 864; Randall v. Siiverthorn,
4 Pa. 173; Eshleman v. Parkers-
burg Iron Co., 235 Pa. 439, 84
Atl. 399.
55. Mason v. MuUahey, 145 111.
383, 34 N. E. 36; Kuhn v. Wise,
90 Kan. 583, 135 Pac. 571; Atty.
Gen. V. Abbott, 154 Mass. 323,
13 L. R. A. 251, 28 N. E. 346;
Connecticut Mut. Life Ins. Co.
V. Smith, 117 Mo. 261, 38 Am.
St. Rep. 656, 22 S. W. 623;
Durant v. Crowell, 97 N. C. 367,
2 S. E. 541; Wood v. French,
39 Okla. 685, 136 Pac. 734; Hume
V. Hare, 87 Tex. 380, 28 S. W.
935; Wisconsin River Land Co. v.
Selover, 135 Wis. 594, 16 L. R.
A. (N. S.) ]073, 116 N. W. 265;
Lufkin Land & Lumber Co. v.
Beaumont Timber Co., Ltd., 151
Fed. 740, 81 C. C. A. 98. See
Booker v. Booker, 208 111. 529.
lOO Am. St. Rep. 250, 70 N. E.
709.
56. Winters v. Powell, 180 Ala.
425, 61 So. 96; Gaines v. Sum-
mers, 50 Ark. 322, 7 S. W. 301;
Hume V. Franzen, 73 Iowa, 25, 34
N. W. 490; Webber v. Taylor, 2
Jones Eq. (55 N. C.) 9; Baldwin
V. Anderson, 103 Miss. 462, 60
So. 578. See Moore v. Sawyer,
167 Fed. 826.
As to whether a purchaser is,
by notice of the inadequacy of
the consideration for the con-
veyance to his grantor, affected
with notice that such conveyance
was fraudulent as to the grant-
ors' creditors, see LongbeeJ v.
Armstrong, 84 N. J. Eq. 49, 92
Atl. 93, and cases there cited.
57. Thompson v. Pioche, 44
Cal. 508; Gregory v. Savage, 32
Conn. 250; Gavin v. Middleton,
63 Iowa, 618, 19 N. W. 805;
Schweiss v. Woodruff. 73 Mich.
473, 41 N. W. 511; WiUiamson
V. Brown, 15 N. Y. 354; Loomia
v. Cobb, — Tex. Civ. App. — ,
159 S. W. 305: 2 Pomeroy, Eq.
Jur. § G07.
58. Cornell v. Maltby, ir,5 N.
Y. 557, 59 N. E. 291; Herbert
§ 570] Priorities and Recording. 2219
may be such, however, that a reasonably diligent in-
quiry would necessarily involve the ascertainment of
the adverse claim, and in such case the presumption of
notice may be regarded as conclusive.-^^ Each case
must, to a very considerable degree, depend upon its
own peculiar circumstances, and it is impossible to
frame any absolute rule by which to determine whether
an intending purchaser has sufficient information to
put him on inquiry, and what constitutes due and suffi-
cient inquiry.^*^
§ 570. Notice to agent. The rule that notice to an
agent is notice to his principal applies in the case of a
purchaser of land acting through an agent, and he may
consequently be charged with noti<?e of adverse claims
either by the agent's actual knowledge, or by informa-
tion acquired by the latter sufficient to put him on in-
quiry.^ ^ The limitations upon the general rule in con-
nection with the time of the acquisition of notice by the
agent, and the character of the transaction in connec-
tion with which the notice is received, are by no means
settled, and are properly a matter for consideration in
a treatise on agency.
It is held by some courts that notice acquired by
the agent before the beginning of the agency is in no
case to be imputed to the principal f- while other courts
hold thrt such notice is to be imputed to the princi])al,
V. Wagg, 27 Okla. 674, 117 Pac. 235; Hickman v. Green, 123 Mo.
209. 165; Kimmel v. Scott, 34 Neb.
59. 2 Pomeroy. Eq. Jur. § 608; 493, 52 N. W. 371; Cowan v.
Kernochan v. Durham, 48 Ohio Withrow, 111 N. C. 306, 16 S.
St. 1, 12 L. R. A. 41, 26 N. E. E. 397; La Forest v. Downer,
982; Ohio River Junction R. Co. 63 Ore. 176, 126 Pac. 995; Bigley
V Pennsylvania Co., 222 Pa. St. v. Jones. 114 Pa. St. 510. 7 Atl.
573, 72 Atl. 271. 54; Steinman v. Clinchfield Coal
60. Webb, Record of Title, § Corporation, 121 Va. 611, 93 S. E.
227. See Kuhn v. Wise, 90 Kan. 684.
583, 135 Pac. 571. 62. Huffcutt, Agency (2d Ed.)
61. Clark v. Fuller, 39 Conn. § 144; Houseman v. Girard Mut.
238; Smith v. Dunton, 42 Iowa, Building & Loan Ass'n, 81 Pa
48; Russell v. Sweezey, 22 Mich. St. 256; Kaiiffman v. Robey, 60
2220
Real Property.
[^ 571
provided the fact of which he has received notice is
present in his mind while acting for the principal,^ "^ and
provided he is at liberty to disclose it to the principal.^^
Notice of a fact to the agent will not in any case
bind the principal if the fact is not within the scope of
the agency.^ ^ Nor is the principal charged with notice
if the agent is acting in fraud of the principal, and, to
further his own ends, conceals the fact from the prin-
cipal."^
§ 571. Notice from possession. — (a) General con-
siderations. An intending purchaser of land is, as a
general rule, by the fact that the land is in the posses-
sion of a person other than he who is undertaking to
sell it, charged with notice of the rights of such person,
to the extent that he could, by reasonable inquiry, have
ascertained the nature of such rights.^'^ This presump-
Tex 308, 48 Am. Rep. 264; Mc-
Cormick v. Joseph, 83 Ala. 401,
3 So. 796.
63. The Distilled Spirits, 11
Wall. (U. S.) 356, 20 L. Ed.
167; Armstrong v. Abbott, 11
Colo. 220, 17 Pac. 517; Mack v
Mcintosh, 181 111. 633, 54 N. E
1019; Constant v. University of
Rochester, 111 N. Y. 604, 2 L
R. A. 734, 7 Am. St. Rep. 769
19 N. E. 631; Arrington v. Ar
rington, 114 N. C. 151, 19 S. E
351; First State Bank of Keota
V. Bridges, 39 Okla. 355, 135
Pac. 378; Mechem, Agency, §
1809.
64. The Distilled Spirits, 11
Wall. (U. S.) 356, 20 L. Ed. 167;
Littauer v. Houck, 92 Mich. 162,
31 Am. St. Rep. 572, 52 N. W.
464; Mack v. Mcintosh, 181 111.
633, 54 N. E. 1019; Mechem,
Agency, § 1814.
65. Roach v. Karr, 18 Kan.
529; Trentor v. Pothen, 46 Minn.
298, 24 Am. St. Rep. 225, 49
N. W. 129; Tucker v. Tilton, 55
N. H. 223; Anketel v. Converse,
17 Ohio St. 11, 91 Am. Dec. 115;
Wood V. Rayburn, 18 Ore. 3, 22
Pac. 521; Mechem, Agency, §
1831.
66. Frenkel v. Hudson, 82 Ala.
158, 60 Am. Rep. 736, 2 So. 758;
Allen V. South Boston R. Co., 150
Mass. 200, 5 L. R. A. 716, 15
Am. St. Rep. 185, 22 N. E. 917;
Hickman v. Green, 123 Mo. 165.
29 L. R. A. 39, 22 S. W. 455,
27 S. W. 440; National Life Ins.
Co. of United States v. Minch, 53
N. Y. 144.
67. Kirby v. Tallmadge, 160
U. S. 379, 40 L. Ed. 463; Enslen
V. Thornton, 182 Ala. 311, 62 So.
525; Grant's Pass Land & Water
Co., 168 Cal. 456, 143 Pac. 754;
Davis V. Pursel, 55 Colo. 287, 134
Pac. 107; Coursey v. Courscy,
§ 571]
Pkiorities and Eecoeding.
2221
tion of notice appears to exist, even though the intend-
ing purchaser is a nonresident, or for other reasons is
without actual knowledge of the possession by a third
person.*^^ As is stated hereafter, however, the posses-
sion may not be of such a character as to put the pur-
141 Ga. 65, 80 S. E. 462; Trues-
dale V. Ford, 37 111. 210; Johnson
V. Clark, 18 Kan. 157; Everidge v.
Martin, 164 Ky. 497, 175 S. W.
1004; Kushler v. Weber, 182
Mich. 224, 148 N. W. 418; Niles
V Cooper, 98 Minn. 39, 13 L.
R. A. (N. S.) 49, 107 N. W. 744;
Strickland v. Kirk, 51 Miss. 795;
Maupin v. Emmons, 47 Mo. 304;
Pleasants v. Blodgett, 39 Neb.
741, 42 Am. St. Rep. 624, 58 N.
W. 423; Phelan v. Brady, 119
N. Y. 587, 8 L. R. A. 211, 23
N. E. 1109; Brown v. Trent, 36
Okla. 239, 128 Pac. 895; Ray-
burn V. Davisson, 22 Ore. 242,
29 Pac. 738; Kerr v. Day, 14
Pa. St. 112, 53 Am. Dec. 526;
Johnson v. Olberg, 32 S. D. 346,
143 N. W. 292; Toland v. Corey,
6 Utah, 392, 24 Pac. 190; Chap-
man V. Chapman, 91 Va. 397,
50 Am. St. Rep. 846, 21 S. E.
813; Field v. Copping, Agnew &
Scales, 65 Wash. 359, 36 L. R.
A. (N. S.) 488, 118 Pac. 329;
Mills V. McLanahan, 70 W. Va.
288, 73 S. E. 927; Olmstead v.
McCrory, 158 Wis. 323, 148 N. W.
871.
68. King V. Paulk 85 Ala 1S6.
4 So. 825; Hamilton v. Fowkes,
16 Ark. 340; Hyde v. Mangan,
88 Cal. 319, 26 Pac. 180; Tate
V. Pensacola, Gulf, Land & De-
velopment Co., 37 Fla. 439, 53
Am. St. Rep. 251, 20 So. 542;
Tillotson V. Mitchell, 111 111.
518; Delosh v. Delosh, 171 Mich,
2 R. P.— 65
175, 137 N. W. 81; Groff v.
Ramsey, 19 Minn. 44; Fried-
lander V. Ryder, 30 Neb. 783,
9 L. R. A. 700, 47 N. W. 83;
Galley v. Ward, 60 N. H. 33;
Hodge V. Amerman, 40 N. J. Eq.
99, 2 Atl. 257; Phelan v. Brady,
119 N. Y. 587, 8 L. R. A. 211,
23 N. E. 1109; Edwards v. Thomp-
son, 71 N. C. 177; Ranney v.
Hardy, 43 Ohio St. 157, 1 N. E.
523; Hottenstein v. Lerch, 104
Pa. St. 454, 1 N. E. 523; Sheorn
V. Robinson, 22 S. C. 32; Bli.ss
V. Waterbury, 27 S. D. 429, 131
N. W. 731; Ramirez v. Smith, 94
Tex. 184, 59 S. W. 258; Chapman
V. Chapman, 91 Va. 397, 50 Am.
St. Rep. 846, 21 S. E. 813; Week-
ly V. Hardesty, 48 W. Va. 39,
S5 S. E. 880. See Simmons
Creek Coal Co. v. Doran, 142 U.
S. 417, 35 L. Ed. 1063. Contra,
Harral v. Leverty, 50 Conn. 46,
47 Am. Rep. 608; Harris v.
Arnold, 1 R. I. 125.
To satisfy a requirement of
"actual notice" within the re-
cording acts, a knowle.^go of the
possession on the part of the
purchaser has been held to be
necesary. Vaughn v. Tracy, 22
Mo. 15, 25 Mo. 318, 69 Am. Dec.
471; Masterson v. West End
Narrow Guage R. Co.. 5 !\Ic. App.
64, 72 Mo. 342; Brinkman v.
Jones, 44 Wis. 498. See Porter
V Sevey, 43 Me. 519; Pomroy v.
Stevens, 11 Mete. (Mar.s ) 244.
2222 Eeal Property. [§ 571
chaser on inquiry .^^ Furthermore, even though the pos-
session was sufficient to put the purchaser on inquiry,
he is not chargeable with notice if he followed up the
inquiry in good faith without discovering any adverse
interest,'^ For instance, if the person in possession re-
fuses, upon inquiry, to indicate the nature of his inter-
est, the purchaser is justified in carrying through the
purchase without reference to any possible claim in
favor of such person,'''^ or, it would seem, in favor of
one in behalf of whom the possession may be held, the
possessor's landlord, for instance.'^^ And if the person
in possession, upon inquiry by the purchaser, disclaims
any interest or anything more than a limited interest,
the purchaser is not charged with notice of a greater
interest in such person by reason of his possession or
occupation. ^^
Even though the purchaser fails to perform his
duty of inquiry, he is not, it seems, charged with notice
of the interest of the person in possession if the in-
quiry would have been unavailing, as when the posses-
sor is ignorant of the nature of his interest,'^^ or he has
previously indicated an intention to deceive the pur-
chaser as to the basis of his possession.'''^
69. Post, § 571(b). with notice if he refuses to
70. Hellman v. Levy, 55 Cal. answer inquiries.
117; Emerich v. Alvarado, 90 73. Yates v. Hurd, 8 Colo.
Cal. 471, 27 Pac. 356; Austin v. 343, 8 Pac. 575; Barchent v.
Southern Home Building & Loan Sellick, 89 Minn. 513, 95 N. W.
Ass'n, 122 Ga. 439, 50 S. E. 382; 458; Trumpower v. Marcey, 92
Penrose v. Cooper, 88 Kan. 210, Mich. 529, 52 N. W. 999; Cavin
128 Pac. 362; Rogers v. Jones, v. Middleton, 63 Iowa, 618, 19 N.
8 N. H. 264; Huffman v. Cooley, W. 805; Losey v. Simpson, 11 N.
28 S. D. 475, 134 N. W. 49; J. Eq. 246.
Ellison V. Torpin, 44 W. Va. 414, 74 Cornell v. Maltby, 165 N.
30 S. E. 185. Y. 557. 59 N. E. 291; Bowles v.
71. Fair v. Stevenot, 29 Cal. Belt. — Tex. Civ. App. — , 159
486; Riley v. Quigley, 50 111. S. W. 885; First Nat. Bank v.
304. Chafee. 98 Wis. 42, 73 N. W.
72. In Fair v. Stevenot, 29 318; Teal v. Scandinavian Ameri-
Cal. 486, it is said that the pos- can Bank, 114 Minn. 435, 131 N.
session of an adverse claim- W. 486.
ant's servant does not charge 75. Austin v. Southern House
§ 571] Peiobities and Eecoeding. 2223
In every case, it is conceived, a purchaser put on
inquiry by another's possession, must make inquiry of
that very person as to the nature of his rights, and he
does not fulfil his duty if he makes inquiry merely of
others."^®
One who has the record title to land put in the name
of another, in order to conceal his own interest therein
from his creditors, has no equity, it has been held,
which he can assert as against an innocent purchaser
from such other, even though he is himself in the actual
possession of the propertyJ'^
(b) Character of the possession. What acts
and circumstances may or may not constitute posses-
sion for this purpose are necessarily varied, and depend
to some extent upon fhe nature and locality of the prop-
erty, the use to which it may be applied, and the situa-
tion of the parties.'^^ It is, in the final analysis, a ques-
tion of fact in each case, whether there is such posses-
sion of the property by A as to affect B with notice
thereof,^^ and that this is so must be recognized in seek-
ing to harmonize the numerous decisions.
Building & Loan Ass'n, 122 Ga. 78. Simmons Creek Coal Co.
439, 50 S. E. 382. v. Doran, 142 U. S. 417, 35 L.
76. Lestrade v. Barth, 19 Cal. Ed. 1063; Morrison v. Kelly, 22
660; Williams v. Brown, 14 111. 111. 610, 74 Am. Dec. 169. See
200; Allen v. Caldwell, 55 Mich. also Tate v. Pensacola, Gulf,
8, 20 N. W. 692; Sailor v. Hert- Land & Development Co., 37 Fla.
zcg, 4 Whart. (Pa.) 259; Can- 439, 53 Am. St. Rep. 251, 20 So.
field V. Hard, 58 Vt. 217, 2 Atl. 542; Bolland v. O'Neal. SI Minn.
136. 15, 83 Am. St. Rep. 362. 83 N.
77. Gill V. Hardin, 48 Ark. W. 471. See Eraser v. Fleming,
409, 3 S. W. 519; Groton Sav. 190 Mich. 238, 157 N. W. 269.
Bank v. Batty, 30 N. J. Eq. 126; 79. Emeric v. Alvarado. 90
Alliance Trust Co. v. O'Brien, 32 Cal. 444, 471, 27 Pac. 356; Helm
Ore. 333, 51 Pac. 640. But the v. Kaddatz, 107 111. App. 413;
creditors might, it seems, assert Hall v. Hilley, 134 Ga. 77, 67 S.
that the purchaser was charged E. 428; Hottenstein v. Lerch,
with notice by the possession. 104 Pa. St. 154; Betts v. Letcher,
Hood V. Fahnestock, 1 Pa. St. 1 S. D. 182, 46 N. W. 193;
470. Ponton v. Ballard, 24 Tex. 619.
•»")^
Eeal Propebty,
r^ 571
The ix)Sse5sion. to charge a purchaser with notice.
must, it is said, be an actual and visible possession,^**
by which is meant, apparently, merely that the posses-
sion must be sufficiently open, continuous and unambig-
uous in character, to indicate to the purchaser, if he
views the property, that some person other than the
vendor claims possession thereof.*^
It appears to be generally recognized that the acts
of possession need not extend to the entire tract sold,
in order to charge the purchaser with notice of the ad-
verse claim, such acts as to part being regarded as suffi-
cient to raise a duty of inquiry as to the extent and
source of the possessor's rights.-- And so occupancy of
part of a building has ben regarded as sufficient to put on
inquiry a purchaser of the building.-^ If, however, the
vendor is actually in occupation of part of the tract
80. Simmons Creek Coal Co.
T. Doran. 142 U. S. 417, S5 L.
E<L 106-3; Taylor r. Central Pac.
IL Co., 67 CaL 61i, 8 Pac. 436;
Tate T. Pensacola, Gulf, Land k
Development Co, 37 Fla. 439. 53
Am. St. Rep. 251, 20 So. 542;
Mason t. Mullahy, 145 111. 383,
34 N. E. 36; ilcMechan t. Grtf-
fing, .3 Pick. (Mass.) 149, 15
Am. Dec. 198; Holland t. Brown,
140 N. Y. 344, 35 N. K 577;
Ranney t. Hardy, 43 Ohio St.
157. 1 X. E. 523; Martin t.
Jackson. 27 Pa. St. 504, 67 Am.
Dec. 4S9.
81- See Rankin Mfg. Co. v.
Bishop, 137 Ala. 271, .34 So. 991;
Jerome t. Carbonate Nat. Bank,
22 Colo. 37, 43 Pac 215; Smith
V. Gibson, 15 Minn. 89; Cox v.
Devinney, 65 N. J. L. 389. 47
Atl. 569; Brown v. Volkening,
64 X. Y. 76; Raybum v. Davis-
son, 22 Ore. 242; Ranney v.
Hardy, 43 Ohio St. 157, 1 N.
E. 523; Meehan t. Williams, 48
I*a. 238; Billington's Lessee v.
Welsh, 5 Binn. (Pa.) 132, 5 Am.
Dec. 406.
82. Smith v. Gale. 144 U. S.
509, 36 L- Ed. 521; Gale v. Shil-
lock, 4 Dak. 1S2. 29 N. W. 661;
Small V. Stagg. 95 IlL 39; Mal-
lett V. Kaehler. 141 IlL 70, 30
N. E. 549; Watters v. Ccnneilv.
.59 Iowa. 217, 13 N. W. 32; Hol-
land V. Brown, 140 N. Y. 344, 35
N. E. 577; Day v. Atlantic k
G. W. R. Co., 41 Ohio St. 392;
Sweatman v. Edmunds, 28 S. C.
58. 62, 5 S. E. 165; Huffman v.
Cooley, 28 S. D. 475. 134 N. W.
49; Ramirez v. Smith, 94 Tei.
184, 59 S. W. 258; Dennis v.
North Pac. R. Co., 20 Wash.
320. 55 Pac. 210; Wickes v. Lake,
25 Wis. 71.
83. Boyer v. Chandler, 160 111.
394, 32 L. R. A. 113, 43 N. E.
803; Truth Lodge No. 213, A. F.
#■ A- M. V. Barton, 119 Iowa,
230, 97 Am. St. Rep. 303, 93 N.
N. W. 106.
§ 571] Priorities and Kecording. 2225
sold, the possession by a third person of the other part
would not usually be calculated to put the purchaser on
inquiry as to such third person's rights. ^^
The possession, to put a purchaser on inquiry, must,
it is said, be actually existent at the time of the pur-
chase, and the purchaser is not affected by a possession
which has been abandoned before that time.®^ But the
courts do not regard actual personal occupation of the
land as necessary to constitute possession for this pur-
pose, it being usually considered sufficient that an in-
spection of the land would indicate, or at least suggest,
that it is habitually utilized for agricultural or other
purposes, even though no person is actually in the oc-
cupation of the land at the time.^® Some of the courts
have, it is conceived, gone somewhat far in regarding a
purchaser as put on inquiry with reference to an ad-
verse claim by the existence of indications on the land
that it has been utilized in a particular way. That, for
instance, crops have been raised on the premises, that
timber has b^en taken therefrom, or that the land has
been fenced, furnishes practically no information to the
purchaser as to an adverse claim, and to hold that it
84. Jeffersouville, etc., R. Co. Watts & S. (Pa.) 474; King v.
V. Oyler, 82 Ind. 394; Cincinnati, Porter, — W. Va — , 71 S. E.
I. & St. L. & C. R. Co. V. Smith, 202.
127 Ind. 461, 26 N. E. 109; Bil- 86. Simmons Creek Coal Co.
lington V. Welsh, 5 Binn. (Pa.) v. Doran, 142 U. S. 417, 35 L.
132, 6 Am. Dec. 406. See Wade Ed. 1063; Sloss-Sheffieid Steel- &
V. Hiatt, 32 N. C 302; Robert- Iron Co. v. Taff, 178 Ala. .^82,
son V. Smith, 191 Mich. 660, Ann. 59 So. 658; Colburn v. Gilcrest,
Gas. 1918D, 145, 158 N. W. ?('7. 6C Colo. 92, 151 Pac. 909; Thom-
85. O'Neal v. Prestwood, 153 as v. Burnett, 128 111. 37, 4 L.
Ala. 443, 45 So. 251; Aden v. R. A. 222, 21 N. E. 352; Rodgers
Vallejo, 139 Cal. 165, 72 Pac. v. Turpin, 105 Iowa, 183, 74 N.
905; Hewes v. Wiswell, 8 Me. W. 925; Kendall v. Lawrence, 22
94; Roussain v. Norton, 53 Minn. Pick. (Mass.) 540; Krider v.
560, 55 N. W. 747; Hiller v. Lafferty, 1 Whart. (Pa. I 303:
Jones. 66 Miss. 636. 6 So. 465; Chapman v. Chapman, 91 Va.
Bingham v. Kirkland, 34 N. J. 397, 50 Am. St. Rep. 846, 21 S.
Eq. 229; Bost v. Setzer, 87 N. E. 813.
C. 187; Boggs v. Warner, 6
2226 Real Property. [§ 571
X^iits him on inquiry as to such a claim means that he
must, in the first place, assume that such prior use of
the land was by some person other than his vendor or
the latter 's predecessor in title, and must then, by in-
quiry of the owners of neighboring property, endeavor
to ascertain the identity of such person, and, having as-
certained his identity, must inquire as to the character
of his claim. This occasionally places a heavy burden
upon the intending purchaser, for the protection, or-
dinarily, of one whose adverse claim might, with proper
diligence, have been made a matter of record.
In case only an easement in the land is claimed,
there will not be any actual possession of the land by
the claimant, but merely an exercise of the easement
thereover, which exercise will ordinarily be intermittent
in character. In such case the notice will be based, strict-
ly speaking, not on possession of the land, but on the
exercise of the easement over the land with sufficient
constancy or continuity to inform one observing the
land of its exercise,*'^ or, quite frequently, upon the
existence of improvements or structures on the land
adapting it for the exercise of the easement.*^^
(c) Possession consistent with record title.
One limitation upon the effect of possession as notice,
which has been recognized in a number of states, is
that the possession of one who has a title of record is
not notice of any title in him other than that which
appears of record, the purchaser being regarded as
justified in attributing his possession to such record
title.^^^ It has accordingly been quite frequently de-
87. Franklin v. Pollard Mill S. C. 228, 51 S. E. 689.
Co., 88 Ala. 318, 6 So. 685; Mc- 88. Ante, § 569. note 54.
Lure V. Keon, 25 Colo. 284, 53 88a. Kirby v. Tallmadge, IGO
Pac. 1058; Rock Island & Pac. U. S. 379, 40 L. Ed. 463; Schu-
R. Co. V. Dimick, 144 111. 628, macher v. Truman, 134 Cal. 430,
19 L. R. A. 105, 32 N. E. 291; 66 Pac. 591; Crooks v. Jenkins.
Campbell v. Indianapolis & V. R. 124 Iowa, 317, 104 Am. St. Rep.
Co., 110 Ind. 490, 11 N. E. 482; 326, 100 N. W. 82; Red River
Harman v. Southern R. Co., 72 Valley Land, etc., Co. v. Smith,
§ 571]
Priorities and Eecording.
2227
cided that one purchasing- an undivided interest from
A, who appears of record to be a tenant in common with
B, is not, by the fact that B has the sole possession,
chargeable w^ith notice that A has previously transferred
his interest to B,^^ it being well recognized that one
tenant in common may hold possession in behalf of all
of the tenants,^*^ and the possession of B being conse-
quently consistent with the existence of an undivided
interest in A, as indicated by the records. And there
is a decision that if a mortgagee, having the legal title
of record, and so entitled to possession, takes a con-
veyance of the equity of redemption, which he fails to
record, a subsequent purchaser from the mortgagor-
will not, by the mortgagee's possession, be charged with
notice of such conveyance,^ ^ such possession being con-
sistent w4th the equitable title of record being in the
mortgagor.'^^ ^j^^j when the title to land appeared of
7 N. D. 236, 74 N. W. 194;
Woods V. Farmere, 7 Watts
(Pa.) 382, 32 Am. Dec. 772.
89. Stortlitz v. Chapline, 71
Ark. 31, 70 S. W. 465; Schu-
macher V. Truman, 134 Cal. 430,
66 Pac. 591: Tyler v. Johnson,
61 Fla. 730, 55 So. 870; May v.
Sturdivant, 75 Iowa, 116, 9 Am.
St. Rep. 463, 39 N. W. 221;
Button V. McReynolds, 31 Minn.
66, 16 N. W. 468; Jones v.
Brenizer, 70 Minn. 525, 73 N. W.
255; Mullins v. Butte Hardware
Co., 25 Mont. 525, 87 Am. St.
Rep. 430, 65 Pac. 1004; Ilvedsen
V. First State Bank, 24 N. D.
227, 139 N. W. 105; Farmers',
etc., Bank v. Wallace, 45 Ohio
St. 152, 12 N. E. 439; Martin v.
Thomas, 56 W. Va. 220, 49 S. E.
118. See Kendall v. Lawrence,
22 Pick. (Mass.) 542: Peck v.
Williams, 113 Ind. 250, 15 N. E.
270.
So it has been held that the
possession of the lessee of one
who appears by the records to
be a tenant in common merely,
is consistent with the record
title of the other tenant in
common, and does not put a
purchaser of the latter's un-
divided interest on inquiry. Schu-
macher V. Truman, 134 Cal. 430,
66 Pac. 591.
The possession of one cotenant
can obviously not operate aa
notice of the fact that the inter-
est of his cotenant has been
transferred to a third person.
Williams v. Sprigg, 6 Ohio St.
585; Wilcox v. Leominster Nat.
Bank, 43 Minn. 541, 19 Am. St.
Rep. 259, 45 N. W. 1136.
90. Ante, § 513(h).
91. Plumer v. Robertson, 6
Serg. & R. (Pa.) 179.
92. Pmt, § 612.
222S Real, Property. [§ 571
record as being vested in three persons in equal undi-
^dded shares, without mention of any partnership
relation between them, a purchaser from one of them
was regarded as justified in assuming that he had a
one-third beneficial interest, although the land was oc-
cupied for the purposes of a partnership consisting of
such persons, and the vendor's beneficial interest was
less than a third.^^ It has likewise been decided that,
if land sold under a judgment against A is, at the time
of the sale, in the possession of B, who claims under a
recorded deed which was executed after the judgment,
the purchaser is justified in imputing B's possession to
such deed, and not to a possible pre-existing interest
in him, not apparent of record.*** Occasionally, however,
this limitation upon the effect of possession as notice
has not been accepted,^'^ and such a view appears not to
be entirely without justification.
The theory at the base of the general rule of notice
from possession is that the purchaser, as he knows or
ought to know of the fact of possession by a third per-
son, is under an obligation to make inquiry of that
person as to the character and extent of the latter 's
rights. The limitation just referred to, upon the rule,
in effect relieves the purchaser from such an obligation
to make inquiry of the person in possession, if a title
in the latter appears of record sufficient to explain his
possession. This asserted limitation upon the general
93. Adams v. Bradley, 12 land v. Corey, 6 Utah, 392, 24
Mich. 346. Pac. 190. See Carr v. Brennan,
94. Rogers v. Hussey, 36 166 111. 108, 57 Am. St. Rep.
Iowa, 664; Lance v. Gorman, 136 119, 47 N. E. 721; Ellison v.
Pa. 200, 20 Am. St. Rep. 914, 20 Torpin, 44 W. Va. 415, 438, per
All. 792. Brannon, P. J.
95. Farmers' Nat Bank v. A purchaser is not justified
Sperling, 113 111. 273; Weisberger in ascribing the possession to a
V. Wisner, 55 Mich. 246, 21 N. recorded deed made to the pos-
W. 331; Schmidt v. Steinbach, sessor if he knows that deed to
193 Mich. 640, 160 N. W. 448; be void. Simonson v. Manson,
Collum V. Sanger, 98 Tex. 62, 82 36 S. D. 167, 153 N. W. 1020.
S. W. 459, 83 S. W. 184; Tol-
§ 5/1] Priorities and Eecording.
2229
nile has, by a judge of pre-eminent ability,^^ been based
on a quasi estoppel, it being said by him that the person
111 possession, m recording one only of his titles, does
an act which, by reason of its tendency to mislead, ought
to postpone his other title in favor of a purchaser, and
this is the course of reasoning indicated in other cases
on the subject. But it may happen that the person in
possession is not responsible for the fact that one of
his titles IS, and that the other is not, recorded. One
ot his titles might be of a character not susceptible of
record as when it is based on an oral transaction or on
an instrument not duly acknowledged.^^ And conceding
tha the record of the one title alone is calculated to
mislead a subsequent purchaser, it may happen that
not having examined the records before ^Durchasing, he
IS not actually misled. Is he protected in such ca.e
tLT7,^'^^'l unrec^orded title of the person in posses-
sion/ It IS to be borne in mind, moreover, that the
-recording of one only of two titles which one may
have, can properly be characterized as misleading only
upon the assumption that it is calculated to lead the
subsequent purchaser to refrain from makino- in-
quiries as to the rights of the possessor, and wheth-
er it IS so calculated is open to question. It might
be suggested that a reasonably prudent person, in pur-
chasing from A an interest in land which is in the pos-
session of B, would make inquiry of B as to his rights
even though there is of record a title in B which i.'
not exclusive of the asserted title in A. The fact that
there IS such a title of record in B makes it no more
difficult for the purchaser to make inquiry as to the
9>l Gibson. C. J., in Woods v. partly executed, which is not
SeT^r . . "^T- ^"""-^ '''■ ^"--Ptible Of registration; yet
"q7 ; ^; , 0". why register another, when,
Wa ts rPaT'38'2 "p.f^^'^^^L^' J '' "^'^h-'- -ere registered, the
Watts (Pa) 382, Gibson, C. J. possession would be notice of
says that an exception to this both." Bnt this omits to reoog-
m|ght be th« case of possession „ize the possibility that the
taken under a parol contract person in possession may have
2230 Real Pkoperty. [§ 571
rights of B. Furthermore, if a purchaser is justified
in refraining from inquiry as to the rights of the per-
son in possession merely because such person has a
title, which appears of record, to which his possession
may be attributed, it is difficult to see why he is not so
justified when such person has such a title, not of
record, of which the purchaser has notice. But the
imputation of such an effect to an unrecorded title is
practically denied by the decisions, hereafter referred
to,**^ that the possession of a tenant under a lease is
notice of rights in such tenant not based on the lease.
The tenant in possession under a lease has a title,
namely the lease, adequate to explain his possession, and
the purchaser has, in the ordinary case, knowledge of
such title, and yet it is held that the possession of the
tenant is notice, not only of his interest under the
lease, but of any other interest which he may have.
(e) Joint possession or occupation. The cases
not infrequently assert that the possession of a third
person, in order to affect a purchaser with notice of
such person's claim, must be "exclusive." Just what
this means is by no means clear. Legal possession is
in its nature exclusive of others, the only case in which
the possession of one person is not exclusive of others
being when there is a joint possession in him and an-
other or others. The statement referred to probably
means that the possession must be an actual legal pos-
session, and not a mere occupation under a license, in
connection with possession in another.
When two persons are together in the possession
of property, a person purchasing the property from
a third person, not in possession, would ordinarily be
put on inquiry as to the claims of such joint possessors.
If one person is in possession, and another person is
apparently associated w^ith him in the use of the prop-
registered his one title without of registration,
knowing that he might subse- 58. Post, § 571(f), note 20.
quently acquire another incapable
§ 571] Priorities and Recording. 2231
erty, as a member of his family, for instance, but. not
as sharing in the legal possession, a purchaser froni
a third person would presumably be put on inquiry as
to the rights of the former but not of the latter.
There are a number of decisions to the effect that
if two persons, A and B, are in occupation of land, and
B is merely a lodger with A, or is a subordinate mem-
ber of A's family, or otherwise A appears to be in
control of the land, the presence of B upon the land is
not such possession on his part as to charge a purchaser
from A with notice of an adverse interest in B.^'^ In
such case B is, in the ordinary case, and strictly speak-
ing, not in possession, and furthermore the fact that
he has apparently no powers of control serves to indi-
cate that he has no actual interest, in the land, but is
there merely in the right of A, and by his permission.
On the other hand, a purchaser from B, would, it ap-
pears, by the possession of A, be put on inquiry as to
the rights of A.^ If the two persons on the land ap-
pear to have equal rights of control thereover, a pur-
chaser from either would, it is conceived, be put on
inquiry as to the rights of the other, the presumption
being that each has a joint interest.
In perhaps a majority of the decisions as to the
effect of joint occupation, as charging a purchaser from
one occupant with notice of the other's claim, reference
is made to the matter of record title, it being said that
if, of two joint occupants, one alone has the record
99. Townsend v. Little, 109 U. N. W. 843, 111 N. W. 343; BeU
S 504, 510, 27 L. Ed. 1012; v. Twilight, 22 N. H. 500 (scm-
Kirby v. Tallmadge, 160 U. S. ble) ; Rankin v. Coar, 46 N. J.
379, 40 L. Ed. 463; Adams-Booth Eq. 566, 11 L. R. A. 661, 22 Atl.
Co. V. Reid, 112 Fed. 106; Miinn 177; Patterson v. Mills, 121 N.
V. Achey, 110 Ala. 628, 18 So. C. 258; Atteberry v. O'Neil, 42
299; Rubel v. Parker, 107 Ark. Wash. 487, 85 Pac. 270. But see
314, 155 S. W. 114; Goodwynne Wyatt v. Elam, 2.3 Ga. 201. 68
V. Bellerby, 116 Ga. 901, 43 S. Am. Dec. 518.
E. 275; Harris v. Mclntyre, 118 1. Watson v. Murray, 54 Ark.
111. 275, 8 N. E. 182; Nabel- 499, 16 S. W. 293.
spach V. Shaw, 146 Mich. 49;{, 109
2232 Real Propeety. [<S, 571
title, a purchaser has the right to assume that the other
lias no title,^ reference being also iisiially made, by way
of analogy, to the doctrine before referred to," that if
a person in possession has a title of record, his posses-
sion may be imputed to that title. It does not seem,
however, that the question of record title should ordi-
narily affect the question of the sufficiency of the pos-
session to operate as notice. If both A and B are
occupying the premises, but A appears to be in con-
trol and B to be on the premises in a merely sub-
ordinate capacity, a purchaser from B should, it is
conceived, inquire as to A's interest in the premises,
even though B has the record title, while a purchaser
from A should not, in such case, be put on inquiry as
to B's interest, even though neither has the record
title. Perhaps when both A and B appear to have
equal powers of control, a purchaser might be justified
in assuming that the one who has the record title is the
one actually in possession, and so be relieved from in-
quiring as to the rights of the other,* but even in such
case, it would seem, a purchaser from eitlier might
reasonably be required, without reference to the record
title, to inquire by what right the other exercises any
control over the property
Actual possession by one of two persons having
joint interests would seem to be sufficient, ordinarily, to
affect a purchaser from a stranger with notice of the
individual interest of the other of -such persons.^ The
2. See Kirby v. Talmadge, 160 Bank v. Wallace, 45 Ohio St.
U. S. 379, 40 L. Ed. 463; Munu ±d2, 12 N. E. 439.
V. Achey, 110 Ala. 628, 18 So. 3. Ante, § 571(c).
299; Walden v. Williams, 128 4. Butler v. Stevens, 26 Me.
Ark. 5, 193 S. W. 71; Smith v. 484; Rankin v. Coar, 46 N. J.
Yule, 31 Cal, 180, 89 Am. Dec. Eq. 566, 11 L. R. A. 661, 22 Atl.
167; Whalen v. Schneider, 281 177; Pope v. Allen, 90 N. Y. 298;
111. 557, 118 N. E. 41; Thierman Cameron v. Romele, 53 Tex. 238,
V. Bodley, 23 Ky. L. Rep. 756, are perhaps to that effect.
63 S. W. 737; Butler v. Stevens, 5. See Ramirez v. Smith, 94
26 Me. 484 (semble); Pope v. Tex. 184, 59 S. W. 258; Kerr v.
Allen, 90 N. Y. 298; Farmers'
§ 571] Peiortties and Recording. 2233
purchaser, upon inquiry of the one in possession, would
usually be informed by him that his interest is an un-
divided one, and that there is a similar interest out-
standing in another. Such possession by one cotenant
is obviously sufficient to put a purchaser on inquiry as
to the interest of such cotenant himself.*'
That the property is occupied by a married couple
has been held to put a purchaser from a third person
on inquiry as to a title in the wife adverse to such per-
son,''' as it would, no doubt, as to such a title in the
husband. And the case would be the same when the
husband claims imder a lease from the vendor.^ That
the property is occupied by a married couple would not
ordinarily put a purchaser from the husband on in-
quiry as to an adverse interest in the wife, he having
the right to assume that she is on the premises merely
by reason of the marital relationship.^
Whether the joint occupation of husband and wife
would be sufficient to put a purchaser from the wife on
inquiry as to a title in the husband appears to be a
matter in regard to which no positive rule can be as-
serted.^"
Kingsbury, 39 Mich. 150, 33 Am, Ala. 142, 50 So. 365; Neal v.
Rep. 362. Perkerson, 61 Ga. 346; Austin
6. Anthe v. Heide, 85 Ala. v. Southern Home Bldg. & Loan
236, 4 So. 380; Kirkham v. Ass'n, 122 Ga. 439, 50 So. 382;
Moore, 30 Ind. App. 549, 65 N. Gray v. Lamb, 207 111. 258, 69 N.
E. 1042; Wilcox v. Leominster E 794; Westerfield v. Kimmer,
Nat. Bank, 43 Minn. 541, 19 Am. 82 Ind. 365; Thomas v. Kennedy,
St. Rep. 259, 45 N. W. 1136. 24 Iowa, 397, 95 Am. Dec. 740;
7. Kirby v. Talmadge, 160 U. Allen v. Caldwell, 55 Mich. 8, 20
S. 379, 40 L. Ed. 463; Butler v. N. W. 692. But see Brown v.
Thweatt, 119 Ala. 325, 24 So. Carey, 149 Pa. 134, 23 Atl. 1103.
545; Iowa Loan & Trust Co. v. 10. That it is sufficient, seo
King, 58 Iowa, 598, 12 N. W. Broome v. Davis, 87 Ga. 584, 13
595; Phelan v. Brady, 119 N. Y. S. E. 749. That it is not suffi-
587, 28 L. R. A. 211, 23 N. E. cient, see Kirby v. Tallmadgo,
1109; Walker v. Neil, 117 Ga. KO U. S. 370, 40 L. Ed. 463 {die-
733, 45 S. E. 387. ium); Atwood v. Bearss, 47
8. Garrard v. Hull, 92 Ga. 787, Mich. 72, 10 N. W. 112 (semblc) ;
20 S. E. 357. Fussett v. Smith, 23 N. Y. 252
9. Langley v. Pulliam, 162 (semhle).
2234 Real Property. [§ 571
(f ) Possession by tenant under lease. By the
decided weigiit of autliority in tbis country, a pur-
chaser may, by the possession of a third person, be
charged with notice of the rights of one under whom
such person holds as tenant.^ ^ Tliis effect given to a
tenant's possession is based on the theory that, upon
inquiring of the tenant as to his rights, the purchaser
would be informed as to the identity of the landlord,
and would be put on inquiry as to the latter 's rights.
In England, however, as in one or two cases in this
country, the view has been adopted that a purchaser
who neglects to inquire into the title of the occupant,
while taking subject to such occupant's rights, does not
take subject to the rights of one under whom the latter
holds as tenant, unless the purchaser knows that the
rent is paid to one whose title is inconsistent with that
of the vendor.^^
The ordinary American rule that the purchaser of
land in the possession of a tenant under a lease is
11. Brunson v. Brooks, 68 Ala. 983; McBee v. O'Connell, 19 N.
248; Button v. Warschauer, 21 M. 565, 145 Pac. 123; Edwards
Cal. 609, 82 Am. Dec. 765; v. Thompson, 71 N. C. 177; Ran-
O'Rourke v. O'Connor, 39 Cal. dall v. Lingewall, 43 Ore. 383,
442; Tillotson v. Mitchell, 111 73 Pac. 1; Hood v. Fahnestock,
111. 523; Gallagher v. Northriip, 1 Pa. 470; Hottenstein v. Lerch,
215 111. 536, 74 N. E. 711; Dickey 104 Pa. 454; Glendennlng v. Bell,
V. Lyon, 19 Iowa, 544; Townsend 70 Tex. 632, 8 S. W. 324.
V. Blanchard, 117 Iowa, 36, 90 12. Barnhart v. Greenshields,
N. W. 519; Penrose v. Cooper. 9 Moore, P. C. C. 34; Hunt v.
86 Kan. 597, 121 Pac. 1103; Luck (1902), 1 Ch. 428; Flagg
Hanly v. Morse, 32 Me. 287; v. Mann, Fed. Cas. No. 4,847, 2
Brady v. Sloman, 156 Mich. 423, Sumn. 486; Beattie v. Beattie,
120 N. W. 795; Wilkins v. 21 Mo. 313, 64 Am. Dec. 234.
Bevier, 43 Minn. 213, 19 Am. For a criticism of the English
St. Rep. 238, 45 N. W. 157; view, see editorial note 12 Co-
Ludowese v. Amidon, 124 Minn. lumbia Law Rev. 549.
288, 144 N. W. 965; Bratton v. It has been decided that poa-
Rogers, 62 Miss. 281; Conlee v. session by a tenant does not
McDowell, 15 Neb. 184, 18 N. charge a purchaser with notice
W. 60; Wood v. Price, 79 N. J. that the rent has been assigned.
Eq. 620, 38 L. R. A. (N. S.) 772, Steel v. De May, 102 Mich. 274,
Ann. Cas. 1913A, 1210, 81 Atl. 60 N. W. 684,
§ 571] Priorities and Recording. 2235
charged with notice of the rights of the landlord, has, in
a number of cases, been regarded as inapplicable when
the same tenant had previously held possession as ten-
ant under the vendor, the theory being that there hav-
ing been no actual change of possession in such case,
a subsequent purchaser from the vendor has no reason
to suspect a divestiture of the latter 's title. ^'^ One
difficulty with this view is that it appears to assume
that the purchaser invariably has notice of the prior
state of the title. If he is not aware that the tenant
formerly held under the vendor, he is certainly not
justified in assuming that the tenant holds under the
vendor at the time of the sale.^^ It might furthermore
be questioned whether a purchaser has a right to as-
sume, because he knows that the person in possession
was formerly holding under a particular person, that he
is still holding under the same person. ^^ There are
occasional decisions apparently opposed to those above
cited.i*^
Whether, adopting the ordinary American rule, the
purchaser would be relieved from further inquiry in
case the tenant informs him that he holds under a lease,
but refuses to inform him as to the identity of the
landlord, appears not to have been decided. He would,
presumably, in such case, have no right to assume that
13. Fitzgerald v. Williamson, 14. See Phelan v. Brady, 119
85 Ala. 585, 5 So. 309; King v. N. Y. 587, 8 L. R. A. 211, 23
Paulk, 85 Ala. 186, 4 So. 825; N. E. 1109.
Griffin v. Hall, 111 Ala. 601, 20 15. See Mainwaring v. Tem-
So. 48; Wahrenberger v. Waid, pieman, 51 Tex. 212.
8 Colo. App. 200, 45 Pac. 518; 16. Haworth v. Taylor, 108
Stockton V. National Bank of 111. 275; Mallett v. Kaehler, 141
Jacksonville, 45 Fla. 590, 34 So. III. 70, 30 N. E. 549; Hannan v.
897; Veasie v. Parker, 2:5 Me. Seidentopf, 113 Iowa, 659, 86 N.
170. Loughridge v. Bowland, 52 W. 44; Penrose v. Cooper. 86
Miss. 546; Conlce v. McDowell, Kan. 597, 121 Pac. 1103; Duff v.
15 Neb. 189, 18 N. W. 60. See McDonough. 155 Pa. 10, 25 Atl.
McCormick v. McCorroick Har- 608; Mainwaring v. Tenipleman,
vesting Mach. Co., 122 Iowa, 393, 51 Tex. 212; Duncan v. Matula,
95 N. W. 181. (Tex. Civ. App.) 26 S. W. 638.
2236 Eeal Peopekty. [§ 571
the person in possession holds as tenant under the
vendor.^'''
There are occasional decisions that, if the person in
possession held originally as tenant under the vendor,
the fact that the vendor transferred his reversionary-
interest to another does not of itself, without any at-
tornment by the tenant to the transferee, make the latter
the landlord, so as to charge a subsequent purchaser with
notice of the latter 's rights by reason of the tenant's
possession.^* This requirement of attornment, which is,
in connection with the transfer of a reversion, for most
purposes obsolete, ^'^ is presumably to be regarded as
based on the theory that until the tenant has in some
way recognized his new landlord, an inquiry of him
would usually not result in the discovery of the transfer
of the reversion.
It has been decided in a number of states that, by
the possession of a tenant under a lease, a purchaser
is chargeable with notice, not only of the tenant's rights
under the lease, but also of any right which he may
have not under the lease, as, for instance, under an
agreement by the lessor to sell the property to him.^o
17. There is a decision that, Rep. 288, 45 N. W. 157; Ferguson
although a purchaser, upon in- v. McCrary, 20 Tex. Civ. App.
quiring of the tenant in posses- 529, 50 S. W. 472.
sion, is told by him that he is 19. Ante. § 53(a).
holding as tenant of the vendor, 20. Brewer v. Brewer, 19 Ala.
he is nevertheless charged with 481; McRae v. McMinn, 17 Fla.
notice of the rights of another, 876; Coari v. Olson, 91 111. 273;
under whom the tenant is ac- Crooks v. .Jenkins, 124 Iowa, 317,
tually holding as tenant. Clarke 104 Am. St. Rep. 326, 100 N. W.
V. Beck, 72 Ga. 127. This 82; Russell v. Moore, 3 Mete,
decision is based on the (mis- (Ky.) 476; Hull v. Noble, 40 Me.
taken) theory that a tenant can 481; Dengler v. Fowler, 94 Neb.
never deny his landlord's title. 621, 143 N. W. 944; Havens v.
See 1 Tiffany, Landlord & Tenant Bliss, 26 N. J. Eq. 363; Wood
pp. 448-450. The hardship on v. Price, 79 N. J. Eq. 620, 28 L.
the purchaser seems obvious. R. A. (N. S.) 772, Ann. Cas.
18. McCormick v. McCormick 1913A 1210, 81 Atl. 983; Chester-
Harvesting Mach. Co., 122 Iowa, man v. Gardner, 5 Johns. Ch. (N.
393, 95 N. W. 181; Wilkins v. Y.) 29; Kerr v. Day, 14 Pa. 112,
Bevier, 43 Minn. 213, 19 Am. St. 53 Am. Dec. 526; Anderson v.
§ 571] Priorities axd Eecording. 2237
These decisions are based on English decisions, to the
same effect,- ^ and involve merely an application of the
general rule, as recognized in England, that a pur-
chaser is under a primary duty to inquire of the per-
son or persons in possession as to the character and
extent of his rights. They do not consider the effect of
the possible record of the lease, but presumablv, if tho
lease were recorded, since the tenant would then have
a record title to explain the possession, the purchaser
would, in some states,- be relieved froin any duty of
inquiry as to the rights of the tenant apart froin the
lease.2^
It has been intimated that if the tenant under a
• lease acquired the fee simple title immediately before
the purchase of the land by another, the purchaser,
knowing that such tenant has been in possession as
tenant under a lease, may presume that his possession
is still under the lease, and is under no obligation to
make inquiry as to his rights.^-^ But such a view cannot
well be harmonized with the decisions, above referred
to,25 that by the possession of a tenant under a lease a
Brinsner, 129 Pa. 376, 6 L. R. A. 94 Neb. 621, 143 N W 944 The
205, 11 Atl. 809, IS Atl. 520. In first cited case refers to Leach v
Texas a contrary rule appears to Ansbacher 55 Pa. 85 to the effect
prevail. Smith v. Miller. 63 Tex. that, if a purchaser knows of
72; Brown v. Roland, 11 Tex. a lease, he can attribute the
Civ. App. 648, 33 S. W. 373; lessee's possession to the lease
Hamilton v. Ingram, 13 Tex. Civ. and is not charged with notice
App. 604, 35 "S. W. 748. But see of any outstanding equities But
Jackson V. Walls,-Tex. Civ. App. this latter case is overruled by
— , 187 S. W. 676. Anderson v. Brinsmer, 129 Pa
21. Allen v. Anthony, 1 Meriv. 376, 6 L. R. A. 205, 11 Atl.
282; Barnhart v. Greenshields, 9 809 18 Atl 520
Moore P^ C. 18; Daniels v. Davi- 24. Rogers v. Jones. 8 N. H.
son, 16 Ves. 249 264; McMechan v. Griffing :<
22. Ante, § 571(c).. pick. (Mass.) 149; Hewos v. Wis-
23. It was so decided In Red well, 8 Me. 94; Kelley v. Blakeney
River Valley Land & Investment —Tex. Civ. App _ 172 s W 77o'
Co. V. Smith, 7 N. D. 236, 74 N. Contra, Crooks v. .lenkins,' 124
W. 194; Hamilton v. Ingram, U Iowa, 317, 104 Am. St Rop 82
Tex. Civ. App. 604. 35 S. W. 100 N. W. 82.
748. Contra, Dengler v. Fowler. 25. Ante, this section, note 20
2 R. P.— 66
2238 Real Property. [§ 571
purchaser is charged with notice of rights of the latter
not based on the lease.-'' If the purchaser is, by the
possession of one who entered under a lease, charged
with notice of his rights, for instance, under a contract
for the purchase of the fee simple title, he should be
charged with notice of his rights under an actual con-
veyance.
There is a decision to the apparent effect that a
purchaser cannot, by the possession of a tenant under a
lease, be charged with notice of such tenant's rights, if
the latter was, before the making of the lease, in posses-
sion as a trespasser.-^ It is not clear why the pur-
chaser should, in such case, be relieved from the duty
of inquiry.
(g) Continued possession by grantor. Some
courts have adopted the view that the continuance in pos-
session by a grantor, after conveying the land, is, like
the possession of any other person, sufficient to put a
subsequent purchaser on inquiry, and so affect him with
notice of any rights in the grantor.^^ Other courts take
the view that, by executing a conveyance of property, the
26. See Flagg v. Mann, 2 navian American Bank of Grand
Sumn. 486, 556; Matthews v. Forks, 114 Minn. 435, 131 N. W.
Demerrltt, 22 Me. 312. 486; Ludowese v. Amidon, 124
27. Emmons v. Murray, 16 N. Minn. 288, 144 N. W. 965; Smith
H. 385. V. Myers. 56 Neb. 503, 76 N. W.
28. Gerwin v. Shields, 187 108; Seymour v. McKinstry, 106
Ala. 153, 65 So. 769; Pell v. Mc- N. Y. 230, 12 N. E. 348, 14 N. E.
Elroy, 36 Cal. 268; Illinois Cent. 94 (semble); Grimstone v. Carter,
R. C. V. McCullough, 59 111. 166; 3 Paige (N. Y.) 421, 24 Am. Dec.
Springfield Homestead Ass'n v. 230; (But see Cook v. Travis, 20
Roll, 137 111. 205, 31 Am. St. N. Y. 400); O'Toole v. Omlie, 8
Rep. 358, 27 N. E. 184 (semhle). N. D. 444, 79 N. W. 849; Manl-
Ronan v. Bluhm, 173 111. 277, 50 gault v. Lofton, 78 S. C. 499, 59
N. E. 694; Hopkins v. Garrard, N. E. 534; Pippin v. Richards,
7 B. Mon. (Ky.) 312; Kentland 146 Wis. 69, 130 N. W 872; In
Coal & Coke Co. v. Elswick, 167 Hedlin v. Lee, 21 N. D. 495, 131
Ky. 593, 181 S. W. 181, (if con- N. W. 390, it was held that a
veyance procured by fraud); Mc- purchaser from one who claimed
Laughlin v. Shepherd, 32 Me. 143, under an invalid foreclosure sale
52 Am. Dec. 646; Teal v. Scandi- was, by the continued possession
§ 571]
Pkiokities and Eecording.
2239
grantor in effect declares that he thereby disposes of all
his rights therein, and that a subsequent purchaser
from the grantee may accordingly assume that, if the
grantor retains possession, it is not by force of any
interest retained by him, but merely by the sufferance
of the grantee, and that the purchaser is consequently
relieved from any duty of making inquiry as to hia
rights,-'' unless, according to some cases, his possession
continues a considerable period after the delivery of
the conveyance.'''^ One difficult}' with this latter view
is that it imputes to a conveyance an effect as a declara-
tion by the grantor, for the purpose of raising an es-
toppel against him, which is not necessarily in accord
with the understanding of the parties or with the legal
effect of the conveyance. One executing, for instance, a
of the former owner, charged
with notice if the invalidity of
the sale.
29. Morgan v. McCuin, 96
Ark. 512, 132 S. W. 459:
Malette v. Wright, 120 Ga. 735,
48 S. E. 229; Koon v. Tramel, 71
Iowa, 132, 32 N. W. 243; Trulin
V. Plested, 178 Iowa, 220, 159 N.
W. 633; McNeil v. Jordan, 28
Kan. 7; Bloomer v. Henderson, 8
Mich. 395, 77 Am. Dec. 453; Mc-
Ewen V. Keary, 178 Mich. 6, L. R.
A. 1916B 1063, 144 N. W. 524;
Baldwin v. Anderson, 103 Miss.
462, 60 So. 578; Vankeuren v.
Central R. Co. of New Jersey, 38
N. J. L. 165; Rankin v. Coar, 46
N. J. Eq. 566, 11 L. R. A. 661, 22
Atl. 177; Cook v. Travis, 20 N. Y.
400; Red River Valley Land In-
vestment Co. V. Smith, 7 N. D.
236, 74 N. W. 194; Rowsey v.
Jamison, 46 Okla. 780, 149 Pac.
880; La Forest v. Downer, 63 Ore.
176, 126 Pac. 995; Scott v. Galla-
gher, 14 Serg. & R. (Pa.) 333;
Eylar v. Eylar, 60 Tex. 315:
Love V. Breedlove, 75 Tex. 649,
13 S. W. 22; Murry v. Carlton.
65 Wash. 364, 44 L. R. A (N. S.)
314, 118 Pac. 332. But the pur-
chaser can obviously not be pro-
tected if a lack of good faitli on
his part appears otherwise. Smith
V. Phillips, 9 Okla. 297, 60 Pac.
117.
On apparently the same theory
it has leen held that the con-
tinuance in possession of one
whose title has been divested by
judicial decree does not affect
with notice one purchasing from
the person in whom title is
vested by the decree. Dawson v.
Danbury Bank, 15 Mich. 489:
Harms v. Coryell, 177 111. 496,
53 N. E. 87.
30. Turman v. Bell, 4 Ark.
273, 26 Am. St. Rep. 35, 15 S. W.
886; American Bldg. & Loan Ass'n
v. Warren, 101 Ark. 163, 141 S.
W. 765; Bennett v. Robins.)Ti, 27
Mich. 26; Stevens v. Hulin, 53
2240 Real Pkopeety. [^ 572
conveyance of a fee simple title, may perfectly well ac-
quire, by the same or a subsequent transaction, an equity
against the grantee or a lease for a limited period, and
it is difficult to see why his conveyance should be re-
garded as a declaration that he has not acquired, or will
not acquire, such an interest, or why a subsequent pur-
chaser should be justified in assuming, for the purpose
of being relieved from any duty of inquiry, that the
grantor's continuance in possession is wrongful rather
than rightful.
It has been decided that if A and B being in pos-
session of land, A conveys the land to B, and they sub-
sequently both remain in possession, the possession of B
does not charge a purchaser from A with notice of B's
title." ^ If, however, in such case, B assumes control of
the property, A remaining thereon only in a subordinate
capacity, B 's possession might, it would seem, affect the
purchaser from A with notice of B's title.
§ 572. Notice from statements in instruments of
title. In so far as a purchaser has actual or construc-
tive notice of a conveyance or other instrument executed
by one previously owming or claiming to own the land,
he is charged with notice of all matters stated or refer-
red to in such conveyance, which may possibly affect
the title, and he is bound to make any inquiries or re-
searches suggested by such statements or references.^^
Mich. 93, 18 N. W. 569; Contra, 133 Mass. 513; Sioux City & St.
Jones V. Grimes, 115 Miss. 874 P. R. Co. v. Singer, 49 Minn. 301.
76 So. 735. 32 Am. St. Rep. 554; Stewart v.
31. McCarthy v. Nicrosi, 72 Matheny, 66 Miss. 21, 14 Am. St.
Ala. 332, 47 Am. Rep. 418; Watt Rep. 538, 5 So. 387; Gross T.
V. Parsons, 73 Ala. 202; Foulks v. Watts, 206 Mo. 373, 121 Am. St.
Reed, 89 Ind. 373; Atwood v. Rep. 662, 104 S. W. 30; Buchanan
Bearss, 47 Mich. 72, 10 N. W. v. Balkum, 60 N. H. 406; Roll v.
112; Rankin v. Coar, 46 N. J. Eq. Rea, 50 N. J. L. 264, 12 Atl. 905;
566, 11 L. R. A. 661, 22 Atl. 117. McPherson v. Rollins, 107 N. Y.
32. Gaines v. Summers, 50 316, 1 Am. St. Rep. 826, 14 N. E.
Ark. 322; Hitchcock v. Hines, 411; Muller v. McCann, 50 Okla.
143 Ga. 377, 85 S. E. 119; Craw- 710, 151 Pac. 621; Jennings v.
ford V. Chicago B. & Q. R. Co., Bloomfleld, 199 Pa. 638, 49 Atl.
112 111. 314; Smith v. Burgess,
§ 572]
Pkioeities and Eecording.
2241
For this purpose a purchaser is charged with notice of
any conveyance which occurs in the chain of title under
which he claims, that is, he is charged with notice of all
matters stated or referred to in any conveyance which is
essential to support his claim, without reference to
whether he has actual notice of such conveyance/''^ And
the fact that such conveyance in the chain of title is not
of record is immaterial in this regard.^^ And he is
charged with notice of the contents, not only of instru-
ments in his chain of title, but also of other instruments
referred to in such instruments, although not of record,'^
135; Teague v. Sowder, 121 Tenn.
132, 114 S. W. 484. So a pur-
chaser is chargeable with notice
of a restrictive covenant con-
tained in a conveyance in his
chain of title; Wiegman v. Kusel,
270 111. 520, 110 N. E. 884; Stees
V Kranz, 32 Minn. 313, 20 N. W.
241; Schadt v. Brill, 173 Mich.
647. 45 L. R. A. (N. S.) 726, 139
N. W. 878; Winfield v. Henning,
21 N. J. Eq. 188; Bowen v. Smith,
76 N. J. Eq. 456, 74 Atl. 675.
One purchasing land with notice
of a mortgage or deed of trust
thereon to secure a loan, contain-
ing a power of sale, has been
regarded as charged with notice
of a sale under the power.
Farrar v. Payne, 73 III. 82;
Heaton v. Prather, 84 111. 330;
Hill V. Ballard— (Mo.)— , 178 S.
W. 445; Mansfield v. Elcelsior
Refining Co., 135 U. S. 326, 34 L.
Ed. 162.
33. Wormley v. Wormley, 8
Wheat. (U. S.) 421, 447, 5 L. Ed.
651; Larkin v. Haralson, 189 Ala.
147, 66 So. 459; Costello v.
Graham, 9 Ariz. 257, 80 Pac. 336;
White v. Moffett, 108 Ark. 490,
158 S. W. 505; Myers v. Berven,
1G6 Cal. 484, 137 Par. 260; Simma
V. Freiherr, 100 Ga. 607, 28 S. E.
288; Stager v. Crabtree. 177 111.
59, 52 N. E. 378; Hazlett v. Sin-
clair, 76 Ind. 488; Knowles v.
Williams, 58 Kan. 221, 48 Pac.
856; Hyde Park Supply Co. v.
Peck-Williamson Heating & Ven-
tilating Co., 176 Ky. 513, 195 S.
W. 1115; Green v. Early, 39 Md.
223; Baldwin v. Anderson, 103
Miss. 462, 60 So. 578; Gross v.
Watts, 206 Mo. 373, 121 Am. St.
Rep. 662, 104 S. W. 30; Lyon v.
Gombert, 63 Neb. 630, 88 N. W.
774; Gosman v. Pfistner, 80 N.
J. Eq. 432, 83 Atl. 781; Holmes
V Holmes, 86 N. C. 205. In re
Mulholland, 224 Pa. 536, 132 Am.
St. Rep. 791; Baxter v. First Nat.
Bank, 85 Tenn. 33, 1 S. W. 501;
Whitlock V. Johnson, 87 Va.
32.'5, 12 S. E. 614.
34. Green v. Maddox, 97 Ark.
397, 134 S. W. 931; Bailey v.
Southern R. Co., 112 Ky. 424, 60
S. W. C31; Stees v. Kranz, 32
Minn. 313, 20 N. W. 241; Gil-
bough V. Runge, 99 Tex. 539, 122
Am. St. Rep. 659, 91 *S. W. 5G6;
2 Pomeroy, Eq. Jur. 627.
35. Hamilton v. Nutt. 34 Conn.
501; Weigel v. Green, 218 HI. 227,
2242
Real Propeety.
[§ 572
in so far, at least, as it is reasonably possible for him to
acquire knowledge thereof. And it follows that notice of
a prior conveyance thus acquired by reference thereto
in the chain of title is sufficient to defeat any claim of
priority based on the failure to record such convey-
ance.^^ Being put upon inquiry by the recital or state-
ment in a conveyance in the chain of title, the pur-
chaser "is bound to follow up this inquiry, step by step,
from one discovery to another and from one instrument
to another, until the whole series of title deeds is ex-
hausted and a comiDlete knowledge of all the matters
referred to and affecting the estate is obtained. Being
thus put upon inquiry, the purchaser is presumed to
have prosecuted the inquiry until its final result and
with ultimate success. "^"^ Likewise, if a purchaser is
charged with notice of an instrument, as being of record,
or in his chain of title, and such instrument refers to a
Judicial proceeding, he is chargeable with notice of the
75 N. E. 913; Walls v. State, 140
Ind. 16, 38 N. E. 177; Taylor v.
Mitchell, 58 Kan. 194, 48 Pac.
859; Bailey v. Southern Ry. Co.,
112 Ky. 424, 60 S. W. 631, 61
S. W. 31; White v. Foster, 102
Mass. 375; Daughaday v. Paine,
6 Miun. 443; Binder v. Weinberg,
94 Miss. 817, 48 So. 1013: Bu-
chanan V. Balkum, 60 N. H. 406;
Sweet V. Henry, 175 N. Y. 268, 67
N. B. 574; Creek Land & Imp.
Co. V. Davis, 28 Okla. 579. 115
Pac. 468; Hancock v. McAvoy,
151 Pa. 460, 18 L. R. A. 781, 31
Am. St. Rep. 774, 25 Atl. 47;
Davis V. Tebbs. 81 Va. 600; Duval
V- Crawford, 73 W. Va. 122. 80
S. E. 833. In Re Nisbet & Potts'
Contract (K05) 1 Ch. 391, it was
held that one acquiring title by
adverse possession was charged
with notice of recitals in a con-
veyance to the disseisee.
36. Rosser v. Cheney, 61 Qa.
468; Morris v. Hogle, 37 lU. 150,
87 Am. Dec. 243; Bronson v.
Wanzer, 86 Mo. 408; Buchanan v
Balkum, 60 N. H. 406; McPher-
son V. Rollins, 107 N. Y. 316,
1 Am. St. Rep. 826; Parke v
Neeley, 90 Pa. St. 52; Davis v.
Tebbs, 81 Va. 600; Town v.
Gensch, 101 Wis. 445, 76 N. W.
1096. 77 N. W. 893.
37. Loomis v. Cobb, — Tex. Civ.
App.— , 159 S. W. 305, per Ilig-
gins, J. See Croasdale v. Hill,
78 Kan. 140, 96 Pac. 37; Berg-
strom v. Johnson, 111 Minn. 247,
126 N. W. 899; Adams v. Gossom,
228 Mo. 566, 129 S. W. 16;
Snyder v. Collier, 85 Neb. 552,
133 Am. St. Rep. 682, 123 N. W.
1023; Roll V. Rea. 50 N. J. L.
264, 12 Atl. 905; Sweet v. Henry,
175 N. Y. 268, 67 N. E. 574;
Teague v. Sowder, 121 Tenn. 132.
114 S. W. 484; Montgomery v.
Noyes, 73 Tex. 203, 11 S. W. 138.
§ 572]
Priorities and Eecording.
2243
character and validity of such proceeding, so far as the
title is dependent thereon.-'^
A purchaser has occasionally been held to be
charged with notice of the inadequacy of the considera-
tion recited in a conveyance under which his grantor
claims, so as to be put on inquiry as to whether the title
is not defective.^^ But such a view has been regarded
as inapplicable when the conveyance had been executed
a number of years before."*''
A reference in one instrument to another instrument
can not affect a purchaser with notice of the latter in-
strument unless the reference is such as to put a reason-
ably careful man on inquiry with regard thereto."*^ And
consequently it must be in' such language as to suggest
a probability, or at least a possibility, that the instru-
ment referred to in some way affects the title. ^- Fur-
thermore, it has been said, it must be sufficiently specific
to enable a purchaser to ascertain by inquiry and in-
38. Chicago R. I. & P. R. Co.
V. Kennedy, 70 lU. 350; Singer
V. Scheible, 109 Ind. 575, 10 N.
ei6; Spears v. Waddington, 146
Ky. 434, 142 S. W. 679; Wood v.
Krebbs. 30 Gratt. (Va.) 708;
Whitney v. Whitney Elevator &
Warehouse Co., 183 Fed. 678, 106
C. C. A. 28.
39. Winters v. Powell, 180
Ala. 425, 61 So. 96; Gaines v.
Summers, 50 Ark. 322, 7 S. W.
301; Hume v. Franzen, 73 Iowa,
?5, 34 N. W. 490 (semble) ; Bald-
win V. Anderson, 103 Miss. 462,
60 So. 578.
40. Babcock v. Collins, 60
Minn. 73, 51 Am. St. Rep. 503, 61
N. W. 1020; Ross v. Kenwood
Inv. Co.,— Wash.— , 131 Pac. 649;
Kinney v. McCall, 57 Wash. ii45,
107 Pac. 385. In the last cited
case it is well said that "a pur-
chaser of real property is not
bound to compare the considera-
tion recited in every deed in his
chain of title with the market
value of the property at the
time of the several conveyances,
under penalty of having the prop-
erty impressed with a secret
trust in his hands."
41. Wood V. Pitman Coal Co.,
90 Ky. 588, 14 S. W. 588; Jen-
nings V. Dockham, 99 Mich. 253,
58 N. W. 66; Crofut v. Wood, 3
Hun (N. Y.) 571; Stewarts Ap-
peal, 98 Pa. 377; Durst t.
Daugherty, 81 Tex. 650, 17 S. W.
;!88; Lewis v. Barnhart, 145 U.
S. 56, 36 L. Ed. 621.
42. Mueller v. Engeln, 12
Bush (Ky.) 441; Mendelsohn v.
Armstrong, 52 La. Ann. 1300, 27
So. 7.'i5; Kansas City Land Co.
v. Hill, 87 Tenn. 589, 5 L. R. A.
45, 11 S. W. 797.
2244 Ry-AL Property. [§ 572
vestigation whether the instrument or proceeding or
other matter referred to does affect the title.^'''
A purchaser is not charged with notice of matter?
referred to in a conveyance of the land which is not a
part of the chain of title under which he claims, which
is not referred to in any instrument constituting a part
of such chain, and of which he has not otherwise any
actual or constructive notice.^^ and a fortiori is this the
case as regards a conveyance of other land.^^ But
a purchaser has been regarded as charged with notice
of a provision contained in a conveyance of neighbor-
ing land, made by one in his chain of title, when the
purpose and effect of such provision was to create an
easement or other servitude upon the land which he is
purehasing.^^
A purchaser is not, it seems, put on inquiry as to
defects in the title by the fact that a conveyance in the
chain of title contains no covenant for title,^^ or is in
the form of a quitclaim deed.^^ And the same view has
43. Spellman v. McKeen, 96 Claiborne v. Holland, 88 Va. 1046,
Miss. 693, 51 So. 914; Acer v. 14 S. E. 915; Providence Forge
Westcott, 46 N. Y. 384, 7 Am. Fishing Hunting Club v. Gill, 117
Rep. 355. See Walls v. State, 140 Va. 557, 85 S. E. 464. But in
Ind. 16, 38 N. E. 177. Rogers v. White,— Tex. Civ. App.
44. Grundies v. Reid, 107 HI. — , 194 S. W. 1001, the pur-
304; Hazlett v. Sinclair, 76 Ind. chaser of land was regarded as
488, 40 Am. Rep. 254; Sullivan v. charged with notice as to the
Mefford, 143 Iowa, 210, 121 N. W. ownership of such land by reason
569; Knox County v. Brown, 103 of a statement in a conveyance
Mo. 223, 15 S. W. 382; Chandler to him of other land.
V. Robinson (N. J. Eq.), 75 Atl. 46. A7ite, § 567(d), notes 60-
180; Hetherington v. Clark, 30 64.
Pa. St. 393; Ramirez v. Sinith, 94 47. Wilhelm v. Wilken, 149 N.
Tex. 184, 59 S. W. 258; Ely v. Y. 447, 32 L. R. A. 370, 52 Am. St.
Wilcox, 20 Wis. 523. Rep. 743, 44 N. E. 82; Schott v.
45. Lewis v. Barnhart, 145 U. Dosh, 49 Neb. 187, 59 Am. St.
S. 56, 36 L. Ed. 621; Bazemore v. Rep. 531, 68 N. W. 346; Bab-
Davis, 55 Ga. 504; Meacham v. cock v. Wells, 25 R. I. 23, 105
Blaess, 141 Mich. 258, 104 N. W. Am. St. Rep. 848, 54 Atl. 596;
579; Murray v. Ballou, 1 .Johns. Padgitt v. Still,— Tex. Civ. App.
Ch. (N. Y.) 566; Kiley v. Hall, — , 192 S. W. 1110.
76 Ohio 374, 117 N. E. 359; 48. A^ite, § 567(1), note 28.
§ 573] Priorities and Recording. 2245
been expressed as to the presence of a special war-
ranty in ordinary form.*^ The warranty might, how-
ever, be so limited as to put a purchaser on notice.^^
§ 573. Actual and constructive notice. Notice is
usually said to be either actual or constructive, but the
cases and text books are absolutely lacking in har-
mony as to the line of demarcation between the two
classes of notice, and any statements here made in re-
gard thereto are ventured merely by way of suggestion.
Fortunately it is immaterial whether notice is, in a
particular case, to be regarded as actual or constructive,
unless it is asserted as satisfying a statutory require-
ment of actual notice.^ 1
It would seem that one might properly be said to
have actual notice when he has information in regard
to a fact, or information as to circumstances an in-
vestigation of which would lead him to information of
such fact, while he might be said to have constructive
notice when he is charged with notice by a statute or a
rule of law^, irrespective of any information which he
may have, actual notice thus involving a mental operation
on the part of the person sought to be charged, and con-
structive notice being independent of any mental opera-
tion on his part. In the nature of things, information
as to a matter necessarily varies as regards the partic-
ularity of the information, and there seems, in principle,
no distinction between notice of a fact based on
po^-itive information that that very fact exists, and
notice based on information creating a suspicion that
the fact exists.
Applying such a criterion, a purchaser may have
actual notice of a prior claim on the land, not only
when the nature of the claim is specifically stated to
him, but also when he is told that a certain person has
49. Marston v. Catterlin, 270 292; Padgitt v. Still,— Tex. Civ.
Mo. 5, 192 S. W. 413. App.— , 192 S. W. lilO.
50. Cypress Lumber Co. v. 51. Ante, §§ 568, note 50, 571,
Shadel. 52 La. Ann. 2094, 28 So. note 68.
2246 Real Pkoferty. [§ 573
a claim of a character not mentioned, he thus ha\dng
information sufficient to enable him to inquire as to
the existence of such claim,^^ and he may be regarded
as having actual notice of the claim though he has not
been actually informed that any claim exists, as for
instance when he pays a grossly inadequate price for
the property,'^--'' or, in England, when the vendor refuses
to produce the title papers. Applying the same crite-
rion, a purchaser has constructive notice of all instru-
ments in his chain of title, irrespective of whether he
has any information in regard thereto, and also of all
statements or references in an instrument affecting the
title, of the existence of which instrument he has actual
or constructive notice, although he has not seen such
instrument. ^'^ Likewise, the notice with which a princi-
pal may be charged by reason of notice to his agent,^*
may properly be referred to as constructive notice, it
being entirely independent of any mental consciousness
on the part of the principal.
Adopting the suggested line of demarcation between
actual and constructive notice, a purchaser might, under
joarticular circumstances, be regarded as having both
actual and constructive notice. In the case, for in-
stance, of possession of the property by a third person,
the purchaser is charged with constructive notice of
an adverse claim under which such person is holding,^^
irrespective of his knowledge of such possession, as
when he is living in another state. But also he may
be regarded, provided he knows of such possession, and
only then, as having actual notice of the claim on which
such possession is based. And so the presence of struc-
tures upon the property may be sufficient to charge a
purchaser with actual notice of an easement upon the
property, provided he has actual knowledge of such
structures. But if he were to be charged with notice of
the easement by reason of the existence of the struc-
52. Ante, § 569, note 52. 54. Ante, § 570.
52a. Ante, § 569, notes 55, 56. 55. Ante, § 571(a), note 68.
53. Ante, § 572.
§ 574] Priorities and Recording. 2247
tures, independently of his having knowledge of them,
the notice would be constructive and not actual. ^^
§ 574. Purchasers for value. — (a) Valuable con-
sideration. In order to claim priority as against one
whose rights have first accrued, one must be a pur-
chaser, for value, and one who receives a conveyance
based on a merely ''good," as distinguished from a
"valuable," consideration, takes subject to all prior
conveyances or incumbrances. It is a principle of
equity, independently of statute, that such a purchaser
takes subject to prior equities, but the recording acts
usually in terms require a conveyance to be recorded
only as against purchasers for valuable consideration,
and, even in the absence of such an express declaration,
the statutes have ordinarily been so construed.^^
One is not a purchaser for a valuable consideration,
unless he has parted with money or money's worth in
consideration of the conveyance,^^ that is he must, as a
consideration for the conveyance, have done some act
by reason of which, if the conveyance were set aside,
he would be in a worse pecuniary position than before.^^
For this reason, an agreement by the grantee to sup-
port the grantor is not a valuable consideration, if it is
in effect merely a condition on which he can retain the
title, or merely a promise to pay, which would become
ineffective in case of lack of title on the part of the
vendor.*^'^ But the assumption by the purchaser, as a
part of the price, of a debt due by his vendor to a third
56. Ante, § 569, note 54. 809, 31 N. E. 994.
57. See 2 Pomeroy, Eq. Jur. 59. Boon v. Baines, 23 Miss.
§§ 656, 746-751; 1 Stimson's Am. 136.
St. Law, § 1611; Webb, Record of 60. Doe v. Doe, 37 N. H. 268.
Title, § 204. For a like reason, it does not
58. Frey v. Clifford, 44 Gal. seem that there is a valuable
335; Doss v. Armstrong, 6 How. consideration accruing to the
(Miss.) 258; Strong v. Whybark, grantor merely because his con-
204 Mo. 341, 12 L. R. A. (N. S.) veyance contains the reservation
240, 120 Am. St. Rep. 710, 102 S. of an easement in his favor. But
W. 968; Ten Eyck v. Witbeck, Aden v. City of Vallejo, 1.19 Cal.
135 N. Y. 40, 31 Am. St. Rep. 165, 72 Pac. 905, Is contra.
2248 Eeal Pkoperty. [§ 57-4
})erson, whereby lie becomes absolutely obligated to th<^
latter, constitutes a valuable consideration.^^
(b) Pre-existing debt. By the very decided
weight of authority, one who takes a mortgage or deed
of trust to secure a pre-existing debt, without at the
time relinquishing any right or claim as a consideration
for the mortgage, is not a purchaser for value/'^ Oc-
casional decisions, however, assert that the mortgagee is
in such case protected as against a prior unrecorded con-
veyance. This view is occasionally based upon the
fact that the recording act does not in terms mention a
valuable consideration as essential to the protection of
a subsequent purchaser,^^ and occasionally upon the
theory that such a mortgagee is a purchaser for valu-
able consideration.®^ So far as this latter view may be
sought to be supported by reference to the rule adopted
in many jurisdictions, that the indorsee of a negotiable
instrument, taking it as security for a pre-existing
debt, takes it free of equities or defenses between prior
61. Jackson v. Winslow, 9 Schumpart v. Dillard, 55 Miss.
Cow. (N. Y.) 13; Warren v. 361; Weaver v. Barden, 49 N. Y.
Wilder, 114 N. Y. 209, 215, 21 N. 286; Union Nat. Bank of Osh-
E. 159; Watkins v. Reynolds, 123 kosh v. Oium, 3 N. D. 193, 44
N. Y. 211, 25 N. E. 322; Citi- Am. St. Rep. 533, 54 N. W. 1034;
zen's Bank of Parker v. Shaw, McGrath v. Cowen, 57 Ohio St.
14 S. Dak. 197, 84 N. W. 779; 385, 49 N. E. 338; Adamson /.
Henderson v. Pilgrim, 22 Tex. Souder, L05 Pa. 498, 55 All. 182;
464; Essex v. Mitchell, — Tex. Brown v. Vanlier, 7 Humph.
Civ. App. — , 183 S. W. 399. (Tenn.) 239; Spurlock v. Sulli-
62. People's Sav. Bank v. van, 36 Tex. 511; McDonald i:
Bates, 120 U. S. 556, 30 L. Ed. Co. v. Johns, 62 Wash. 521, 33
754; Jones v. Robinson. 77 Ala. L. R. A. (N. S.) 57, 114 Pac. 175;
499; Haldiman v. Taft, 102 Ark. Funk v. Paul, 64 Wis. 35, 54 Am.
45, 143 S. W. 112; Hubert v. Rep. 576, 24 N. W. 419.
Merchants' Bank, "!37 Ga. 70. 72 63. Hayner v. Eberhardt, 37
S. E. 505; Gilchrist v. Gough 63 Kan. 308, 15 Pac. 168; Dorr v
Ind. 576, 30 Am. Rep. 250; Meyer, 51 Neb. 94, 70 N. W. 543.
Senneff v. Brackey, 165 Iowa, 525, 64. Frey v. Clifford, 44 Cn).
146 N. W. 24; Goodwin v. Mas- 335; Cammack v. Soran, 30
cachusetts Loan & Trust Co., 152 Graft. (Va.) 292; Chapman v.
Mass. 189, 25 N. E. 100; Box- Chapman, 91 Va. 397, 50 Am. St
heimer v. Gunn, 24 Mich. 372; Rep. 846, 21 S. E. 813; Gilbert
§ 574]
Pkiorities and Eecobding.
2249
parties, it seems appropriate to quote the statement of a
high tribmial that "the rules established in the interests
of commerce to facilitate the negotiation of mercantile
paper, which, for all practical purposes, passes by de-
livery as money, ought not, in reason, to embrace instru-
ments conveying or transferring real or personal prop-
erty as security for the payment of money. "^'
If, as a consideration for the giving of a mortgage
or deed of trust to secure a pre-existing debt, the
creditor relinquishes other security for the debt, he is in
a position to claim as a purchaser for value,"*^ as he is
if he extends the time for the payment of the debt/'"
One who takes an absolute conveyance of land in
satisfaction of a pre-existing debt, he relinquishing all
claim on the debt, is in some jurisdictions regarded as
entitled to claim as a purchaser for valuable considera-
tion,^^ while in other jurisdictions he is not so re-
Bros. & Co. V. Lawrence Bros., 56
W. Va. 281, 49 S. E. 155.
65. People's Sav. Bank v.
Bates, 120 U. S. 556, 30 L. Ed.
754, per Harlan, J. And see, to
the same effect. Haldiman v.
Taft, 102 Ark. 45, 143 S. W. 112.
66. Richardson v. Wren, 11
Ariz. 395, 95 Pac. 124, 16 L. R.
A. (N. S.) 190; Wilson v. Knight,
59 Ala. 172; Fitzpatrick v. Papa,
89 Ind. 17; McCleery v. Wake-
field, 76 Iowa, 529, 2 L. R. A. 529,
41 N. W. 210; Hinds v. Pugh, 48
Miss. 268; Lane v. Logue, 12 Lea.
(Tenn.) 681. See Farmers' Mer-
chants' Nat. Bank v. Wallace, 45
Ohio St. 153, 12 N. E. 439.
67. Jor-s V. Robinson, 77 Ahi.
499; Randolph v. Webb, 116 Ala.
135, 22 So. 550; Hill v. Yar
brough, 62 Ark. 320, 35 S. W.
433; Tripler v. MacDonaid Lum-
ber Co., 173 Cai 144, 159 Pac.
591; Gilchrist v. Gongh, 63 Ind.
576, 30 Am. Rep 250, Koon v.
Tramel, 71 Iowa, 132, 32 N. W.
243; De Mey v. Defer, 103 Mich.
239, 61 N. W. 524; Schumpert v.
Dillard, 55 Miss. 348; Dourde-
doure v. Humbert, 85 N. J. Eq.
89, 95 Atl. 742; O'Brien v.
Fleckenstein, 180 N. Y. 350, 105
Am. St. Rep. 768, 73 N. E. 30;
Branch v. Griffin, 99 N. C. 173,
5 S. E. 393, 398 {senible); First
Nat. Bank v. Lamont, 5 N. D.
393, 67 N. W. 145: Farmer's &
Merchants' Nat. Bank v. Wallace,
45 Ohio St. 153, 12 N E. 439;
Pittsburgh & C. R. Co. v. Barker,
29 Pa. St. 160; Far user's & Mer-
chants' Bank v. Citizens' Nat.
Bank, 25 S. D. 91, 125 N. W.
642; Steffian v. Milmo Nat. Bank,
69 Tex. 513, 6 S. W. 823.
68. Saffold V. Wade, 51 Ala.
214; Foorman v. Wallace, 75 Cal.
552, 17 Pac. 680; Schluter v.
Harvey, 65 Cal. 158, 3 Pac. 659;
Jerome v. Carbonate Nat. Bank,
22 Colo. 37, 43 Pnc. 215; Sutton
2250 Real Pbopeety. [§ 574
garded.*'^ On principle, it would seem, the fonner view
is the more satisfactory, and such a view is in no way
inconsistent with the view that one to w^hom a mortgage
is given to secure a pre-existing debt is not a pur-
chaser for value, since there is, in the latter case, no
relinquishment of the claim. It has, nevertheless, been
asserted by an able writer,^*^ that, however, logical may
be the view that a conveyance is on valuable considera-
tion if executed in satisfaction of a debt, and is not on
valuable consideration if executed as security for a
debt, such a distinction is unfortunate in its practical
results, as rendering it possible for the creditor, in his
testimony, to give such a color to the transaction as uiay
be most for his benefit, as against a third person not a
party to the transaction. This is no doubt true, to
some extent at least, but whether it is desirable to ob-
scure the legal principles applicable to a particular state
of facts for the sake of diminishing the possibility of
perjury, a possibility which can never be entirely ex-
cluded, may well be doubted, and it may be remarked,
moreover, that this is by no means the only case in
which a person may be affected by the testimony of
V. Fork, 144 Ga. 587, 87 S. E. 799; bridge v. Allen, 100 Iowa, 582, 69
Bunn V. Schnellbacher, 163 111. N. W. 1031; Western Grocer Co.
328, 45 N. E. 227 (semble) ; v. Alleman, 81 Kan. 543, 27 L.
Adams v. Vanderback, 148 Ind. R. A. (N. S.) 620, 135 Am. St.
92, 62 Am. St. Rep. 497. 45 N. E. Rep. 398, 106 Pac. 460; Schloss
645, 47 N. E. 24; Busey v. Reese, v. Feltus, 103 Mich. 525, 36 L.
38 Ind. 264; Hanold v. Kays, 64 R. A. 161, 61 N. W. 797; Pan-
Mich. 439, 8 Am. St. Rep. 835, coast v. Duval, 26 N. J. Eq. 445;
31 N. W. 420; Soule v. Shot- Dickerson v. Tillinghast. 4 Paige
well, 52 Miss. 236; State B.^nk (N. Y.) 215, 25 Am. Dec. 528;
of St. Loais V. Frame, 112 Mo. Howells v. Hettrick, 160 N. Y. 308,
502, 20 S. W. 620; Clements v. 54 N. E. 679; Temple v. Osburn,
Doerner, 40 Ohio St. 632; Alstin's 55 Ore. 506, 106 Pac. 16; Steffian
Ex'r V. Cundiff, 52 Tex. 453; v. Milmo Nat. Bank, 69 Tex. 513,
Cammack v. Soran, 30 Gratt. 6 S. W. 823.
(Va.) 292; Shufeldt v. Pease, 16 70. 2 Pomeroy, Eq. Jur. § 749.
Wis. 659. And see Retsch v. Renehan, 16
69. Landv. Hea, 20 Idaho, 250, N. Mex. 541, 120 Pac. 897; Gest
118 Pac. 506; Metropolitan Bank v. Packwood, 34 Fed. .368.
V. Godfrey, 23 111. 579; Lilli-
§ 574] Priorities and Eecordixg. 2251
another person as to a matter in regard to which he
himself is not in a position to testify.
In a few of the states in which one who receives a
conveyance in satisfaction of an indebtedness is not
ordinarily regarded as a purchaser for value, it has
been decided, apparently, that he is such a purchaser if,
at the time, he relinquishes security which he holds for
the indebtedness. "^1 But since the satisfaction and con-
sequent extinguishment of the debt would necessarily
release the security for the debt, it is not readily ap-
parent why the express relinquishment of security
should, when accompanying a satisfaction of the debt,
constitute a valuable consideration.
(c) Adequacy of consideration. It is general-
ly agreed that, in order that one may be protected as a
purchaser for value, it is not necessary that the con-
sideration paid by him be adequate, that is, that it equal
the full value of the property."^ On the other hand it is
said that one who pays a merely "nominal" considera-
tion cannot claim as a purchaser for value. '^ What
degree of inadequacy is necessary to render the con-
sideration merely nominal is a question of difficulty.
71. Bunn v. SchneUbacher, 163 said that the price must be fair
111. 328, 45 N. E. 227; Grand and reasonable. Collins v. Davis,
Rapids Nat. Bank v. Ford, 143 132 N. C. 106, 43 S. E. 579.
Mich. 402, 114 Am. St. Rep. 668, 73. Curtis v. Riddle, 177 Ala.
8 Ann. Cas. 102, 107 N. W. 76; 128, 59 So. 47; Morris v. Wicks,
Padgett V. Lawrence, 10 Paige 81 Kan. 790, 26 L. R. A. (N. S.)
(N. Y.) 170, 40 Am. Dec. 232. 681, 106 Pac. 1048; Tinnin v.
72. Frey v. Clifford, 44 Cal. Brown, 98 Miss. 378, Ann. Cas.
335; Ennis v. Tucker, 78 Kan. 1913A, 1081, 53 So. 780; Ten
55, 130 Am. St. Rep. 352; Strong Eyck v. Witbeck, 135 N. Y. 40, 31
V. Whybark, 204 Mo. 341, 12 L. Am. St. Rep. 809, 31 N. E. 994;
R. A. (N. S.) 240; Hume v. Abernathy & South & W. R. Co.,
Ware, 87 Tex. 380, 28 S. W. 150 N. C. 97, 63 S. E. 180; Huff
935; Reed v. Nunn, 80 C. C. A. v. Maroney, 23 Tex. Civ. App.
215, 148 Fed. 737; Bassett v. 465, 56 S. W. 754; Dunn v.
Notworthy, Rep. temp. Finch. Barnum, 2 C. C. A. 265, 51 Fed.
102, 2 White & Tudor's Leading Fed. 355. In Nichols-Stewart v.
Caa. in Eq. 1. Crosby, 87 Tex. 443, 29 S. W.
But In North Carolina it is 380, it was decided that a con-
2252 Real Propekty. [§ 57-i
It has been said in this connection that ''a small
sum, inserted and paid, perhaps because of a popular
belief that some slight money consideration is necessary
to render the deed valid, will not of itself satisfy the
terms of the (recording) statute, where it appears upon
the face of the conveyance, or by other competent evi-
dence, that it was not the actual consideration."^* This
statement was made in connection with a conveyance to
a near relative, and it indicates, it is conceived, the
proper criterion for such a case, that is, that if the
transaction is in reality a gift, though under the guise
of a sale, the beneficiary is not a purchaser for valuable
consideration.'^^ It does not seem, however, that one
who pays a substantial price should be deprived of the
protection accorded a purchaser for value merely be-
cause, by reason of relationship or friendship, he ac-
quires the property at a price lower than would have
been demanded of another person, except as this may
tend to charge him with notice.
In the case of a transaction between persons who
are connected by no ties of relationship or friendship,
the possibility of regarding the transaction as a gift is
excluded, and it can only be regarded as a sale. Though
one pays only ten dollars for property worth one thou-
sand, he is, unless the transaction was intended as a
gift, actually a purchaser, and it is difficult to say that he
is not a purchaser for value. But that the property is
offered to him at such a decidedly inadequate price is
sufficient to subject him to a duty of inquiry as to the
sideration of five dollars for 968, the transaction was evi-
property worth eight thousand dently merely a gift, and it does
was "too grossly inadequate." not seem that the grantee should
74. Ten Eyck v. Witbeck, 135 have been protected as a pur-
N. Y. 40, 31 Am. St. Rep. 809, chaser for value. The view there
31 N. E. 994. See also Martin v. stated that a consideration of one
White, 115 Ga. 866, 42 S. E. 279. dollar or less is insufficient to
75. In Strong v. Whybark, 204 entitle the purchaser to protec-
Mo. 341, 12 L. R. A. (N. S.) 240, tiou, while any greater sum is
120 Am. St. Rep. 710, 102 S. W. sufficient, is most unsatisfactory.
§ 574]
Priorities and Eecording.
2253
existence of an adverse claim,"*^ and a very great dis-
crepancy between the consideration paid and the market
value of the property might, it seems, of itself justify
a finding that the purchase was not bona fideP'^
(d) Notice before payment. A purchaser
who did not pay the consideration before receiving
notice of the adverse right cannot claim priority thereto,
even though he had previously received a transfer of the
legal title. '^^ He can assert the adverse right as a
defense to the claim for the purchase price, and hence
is not in the position of a purchaser for value.
(e) Notice after part payment. A purchaser
to whom the legal title has been conveyed, and who
paid part, but not all, of the purchase money, before
obtaining notice of the adverse claim, is usually con-
sidered as entitled to protection to the extent of the
payments made by him before receiving notice."^^ The
76. Ante, § 569, note 55.
77. Dunn v. Barnum, 2 C. C.
A. 265, 51 Fed. 355; Reed v.
Munn, 80 C. C. A. 215, 148 Fed.
737; Nichols-Stewart v. Crosby,
87 Tex. 443, 29 S. W. 380.
78. Wells V. Morrow, 38 Ala.
125; Duncan v. Johnson, 13 Ark.
190; Beattie v. Crewdson, 124
Cal. 577, 57 Pac. 463; Donalson
V. Thomason, 137 Ga. 848, 74 S.
E. 762; Brown v. Welch, 18 111.
343, 68 Am. Dec. 549; Schultze
V. Houfes, 96 111. 335; Sillyman
V. King, 36 Iowa, 207; Winlock
V. Munday, 156 Ky. 806, 162 S.
W. 76; Blanchard v. Tyler, 12
Mich. 339, 86 Am. Dec. 57; Fraser
V. Fleming, 190 Mich. 238, 157 N.
W. 269; Marshall v. Hill, 246 Mo.
1. 151 S. W. 131; Holladay v.
Rich, 93 Neb.| 491, 140 N. W.
794; Patten v. Moore, 32 N. H.
382; Jewett v. Palmer, 7 Johns.
2 R. P.— 67
Ch. (N. Y.) 65, 11 Am. Dec. 401;
Halloran v. Holmes, 13 N. D. 411,
101 N. W. 310; Evans v. Tem-
pleton, 69 Tex. 375, 5 Am. St.
Rep. 71, 6 S. W. 843; Lamar's
Ex'r V. Hale, 79 Va. 147; Tibbs
V. Zirgle, 55 W. Va. 49, 104 Am.
St. Rep. 977, 2 Ann. Cas.'421, 46
S. E. 701; Trice v. Comstock, 57
C. C. A. 646, 121 Fed. 620, 61
L. R. A. 176.
79. Craft v. Russel, 67 Ala.
9; House v. Davis, 196 Ala. 153,
71 So. 685; Davis v. Ward, 109
Cal. 186, 50 Am. St. Rep. 29, 41
Pac. 1010; Donaldson v. Thoma-
son, 137 Ga. 848, 74 S. E. 762;
Dickinson v. Wright, 56 Mich. 42,
22 N. W. 312; Parker v. Foy,
43 Miss. 260, 5 Am. Rep. 484;
Macauley v. Smith, 132 N. Y. 524,
30 N. E. 997; Rector v. Wildrick,
— Okla.— , 158 Pac. 610; Youst v.
Martin, 3 Serg. & R. (Pa.) 423;
2254 Real Property. [§ 574
mode of effecting this protection is, however, a matter as
to which the cases do not lay down any uniform rule.
It is sometimes stated that the adverse claimant cannot
assert his claim against the land in the hands of the
purchaser without reimbursing the latter the amount
paid by him before receiving notice,-'^ while, by other
cases, the adverse claimant is not entitled, as against
the purchaser, to recover the land, but can merely assert
his claim to the extent of the purchase money not paid
at the time of the purchaser's acquisition of notice,
such unpaid purchase money being thus in effect sub-
stituted for the land.^^ As between these two methods
of adjusting the rights of the parties, that one should
be adopted which, in view of the facts of the case, is
most likely to produce an equitable result, and this
would depend to some extent, it seems, upon the re-
spective portions of the purchase money paid and un-
paid at the time of the acquisition of notice, and also
upon the relation of the agreed price to the actual
value of the property.^- In order that the purchaser
may obtain reimbursement for the amount paid by him
Sparks v. Taylor, 99 Tex. 411, 6 E. 644.
L. R. A. (N. S.) 381, 90 S. W. If the purchaser has already
485. But see Wormley v. Worm- been reimbursed out of the rents
ley, 8 Wheat. (U. S.) 421, 450, 5 and profits of the property, he
L. Ed. 651; Doswell v. Buchanan, cannot, it has been held, claim
3 Leigh (Va.) 365; Heck v. any further reimbursement for
Fink, 85 Ind. 9. the payments made by him. Beck
80. Marchbanks v. Banks, 44 v. Ulrich, 13 Pa. 636, 16 Pa. 499.
Ark. 48; Henry v. Phillips, 163 81. Flagg v. Mann, 2 Sumn.
Cal. 135, 124 Pac. 837; Kitteridge 486, 563; Dowell v. Applegate, 7
V. Chapman, 36 Iowa, 348; Ben- Fed. Rep. 881; Baldwin v. Sager,
nett V. Titherington, 6 Bush 70 111. 503; Burton v. Regan.
(Ky.) 193; Wiles v. Shaffer, 175 75 Ind. 77; Green v. Green, 41
Mich. 704, 141 N. W. 599 (sem- Kan. 472, 21 Pac. 586; Hardin v.
hie); Dougherty v. Cooper, 77 Harrington, 11 Bush (Ky.) 367;
Mo. 528; Haughout v. Murphy, Sparks v. Taylor, 99 Tex. 411,
22 N. J. Eq. 531; Fluegel v. 427, 6 L. R. A. (N. S.) 381, 90
Henschel, 7 N. D. 276. 66 Am. S. W. 485.
St. Rep. 642, 74 N. W. 996; Webb 82. See Durst v. Daugherty,
V. Bailey, 41 W. Va. 463, 23 S. 81 Tex. 650, 17 S. W. 388.
§ 574] Priorities and Eecording. 2255
before notice, he must, it has been held, state such
claim, with the grounds thereof, in his pleading.^^
If the purchaser makes improvements on the prop-
erty before receiving notice of the adverse claim, he is
entitled, as a condition of recovery of the land by the
claimant, to reimbursement of the cost of the improve-
ments as well as of the payments innocently made by
him.^^ this according with the rule ordinarily ai)plied
in ecj[uity in favor of an innocent purchaser. ^°
(f) Payment by note. The fact that the
purchaser has given a non-negotiable note for the
price does not constitute him a purchaser for value,
since he may be relieved therefrom in equity upon a
showing that the title to the property has failed.^^^
If the purchaser gives a negotiable note on account
of the price, and such note is transferred to a bona fide
holder for value, the purchaser of the property, though
he subsequenth" receives notice of an adverse claim to
the property, cannot avoid payment of the note, and
he is consequently in the position of one who has paid
value.^^ But if he receives notice before the note is
83. Freeman v. Pullen, 130 Ala. Dec. 401; Wood v. Rayburn, 18
653, 31 So. 451; Mackey V. Bowles, Ore. 3, 22 Pac. 521 (semblc) ;
98 Ga. 730, 25 S. E. 834; Donal- Union Canal Co. v. Young, 1
son V. Thomason, 137 Ga. 848, 74 Whart. (Pa.) 410, 30 Am. Dec.
S. E. 762; Webb v. Bailey, 41 212; Beck v. Ulrich, 13 Pa. St.
W. Va. 463, 23 S. E. 644. And 636, 53 Am. Dec. 507; Lamoille
see Freeman v. Pullen, 130 Ala. County Sav. Bank & Trust Co.
653, 31 So. 451. v. Belden, 90 Vt. 535, 98 Atl.
84. Lewis v. Phillips, 17 Ind. 1002.
408; Florence Sewing Mach. Co. 86. Beebe Stave Co. v. Austin,
V Zeigler, 58 Ala. 221; Youst v. 92 Ark. 248, 135 Am. St. Rep.
Martin, 3 Serg. & R. (Pa.) 423. 172, 122 S. W. 482; Davis v.
85. Ante, § 274. Ward. 109 Cal. 186, 50 Am. St.
85a. Marchbanks v. Banks, 44 Rep. 29, 41 Pac. 1010; Donaldson
Ark. 48; Kitteridge v. Chapman, v. Thomason, 137 Ga. 848, 74 S.
36 Iowa, 348; Blanchard v. Tyler, E. 762; Partridge v. Chapman, 81
12 Mich. 339, 86 Am. Dec. 57; 111. 137; Rush v. Mitchell, 71
Haughwout V. Murphy, 22 N. .1. Iowa, 333, 32 N. W. 367:
Eq. 531; Jewett v. Palmer. 7 Daugherty v. Northern Coal &
Johns. Ch. (N. Y.) 63, 11 Am. Coke Co., 174 Ky. 423, 192 S.
2256 Real Property. [§ 574
negotiated, he is, it seems, in a position to prevent the
subsequent negotiation of the note, and can not there-
after pay the note, and assert that, by reason of such
payment, he is a ho72a fide purchaser for value.^^ Oc-
casionally it appears to have been considered that the
purchaser, if he has given a negotiable note, is pro-
tected as a purchaser for value, even though it has not
been negotiated at the time of his receipt of notice of
an adverse claim. ^^
is) Payment without acquiring legal title. The
cases but rarely consider whether one who pays the
agreed consideration, without at the time taking a con-
veyance, is to be protected as against a prior unrecorded
conveyance of which he has at the time no notice. He
acquires at most in such case merely an equitable as
distinguished from a legal title, and whether the holder
of an equitable title is to be regarded as within the
protection of the recording act is a question of the
construction of such act.^^ Furthermore, if the record-
ing act protects a subsequent purchaser only when his
conveyance is first recorded,^^' one paying for land
without at the time taking a conveyance of the legal title
would not be protected unless he has a contract which
is susceptible of record as a conveyance, and this is
first recorded, or, in case such a contract is not regarded
as a conveyance within the statute, as might well be the
case, unless he subsequently obtains a conveyance, and
this is first recorded. If a conveyance of the legal title
is thus subsequently obtained by the purchaser after
he has acquired notice of the prior unrecorded convey-
W. 501; Digby v. Jones, 67 Mo. 618; Citizens' Bank of Parker v.
104. Shaw, 14 S. D. 197, 84 N. W. 779.
87. Baldwin v. Sager. 70 111. But as to Texas see Nellius v.
503; Freeman v. Denning. 3 Thompson Bros. Lumber Co., —
Sandf. Ch. (N. Y.) 327. Tex. Civ. App— , 156 S. W. 259.
88. Tillman v. Heller, 78 Tex. 89. Ante. § 567 (m), notes 32,
597, 11 L. R. A. 628, 22 Am. St. 33.
Rep. 77, 14 S. W. 700; Dodd v. 90. Ante, § 567 (m), notes
Gaines, 82 Tex. 429, 18 S. W. 11-12.
§ 575] Priorities and Eecordixg. 2257
ance, there is some analogy to the case of the holder of
a later equity who, after acquiring notice of an earlier
equity, obtains the legal title.^^ That is, the grantee in
the prior conveyance might be considered, as regards
the subsequent purchaser, as having merely an equity,
and adopting such a view, the question whether the
subsequent purchaser could secure priority by obtaining
a conveyance with notice of the prior unrecorded con-
veyance would appear to be determinable with reference
to the rule adopted in that jurisdiction, as between the
holders of equities.^^
§ 575. Purchasers with notice from purchasers
without notice. A purchaser for value may not only en-
joy the property free from any adverse claim of which
he had no notice at the time of his purchase, but he may
algo transfer his rights in this respect to others, and
the fact that his alienee himself has notice is immaterial,
it being thus the rule that a purchaser with notice from
a purchaser without notice has all the rights of the lat-
ter.^^ Were the rule otherwise, a purchaser without
notice might be unable to dispose of his property for
value. The one exception to this rule exists when the
second purchaser had previously held the property sub-
91. Ante, § 566(b), notes 10- Varney v. Deskins, 146 Ky. 27,
13. 141 S. W. 411; Livingstone v.
92. See, as apparently apply- Murphy, 187 Mass. 315. 105 Am.
ing the analogy suggested. Whea- St. Rep. 400, 72 N. E. 1012;
ton V. Dyer, 15 Conn. 307; Paul Barksdale v. Learnard. 112 Miss.
V. McPherrin, 48 Colo. 522, 21 861, 73 So. 736; Craig v. Zimmer-
Ann. Cas. 460, 111 Pac. 59. man, 87 Mo. 475, 56 Am. Rep.
93. Harrison v. Forth, Finch. 466; McGrath v. Norcross, 78 N.
Prec. Ch. 51; Whitfield v. Rid- J Eq. 120, 79 Atl. 85, 82 N. J.
die, 78 Ala. 99; White v. Moffett, Eq. 367, 91 Atl. 1069; Card v.
108 Ark. 490, 158 S. W. 505; Patterson, 5 Ohio St. 319; Master-
Moore V. Allen, 26 Colo. 197, 77 son v. Crosby, — Tex Civ. App. — ,
Am. St. Rep. 255, 57 Pac. 698; 152 S. W. 173; Bernard v. Oon-
Roe V. Cato, 27 Ga. 637; Buck son, 58 Wash. 191, 137 Am. St.
V. Foster, 147 Ind. 530, 62 Am. St. Rep. 1051, 108 Pac. 439; KinjT
Rep. 427, 46 N. E. 920, East v. v. Porter, 69 W. Va. 80, 71 S. E.
Pugh, 71 Iowa, 162, 32 N. W. 309; 202.
2258 Real Property. [§§ 576, 577
ject to such adverse claim. That is, one having notice
cannot, by disposing of the property to an innocent
purchaser, and subsequently reacquiring it, obtain the
right to hold it free from such claim.^^
§ 576. Purchasers without notice from purchasers
with notice. A purchaser of land without notice, either
from the records or otherwise, of a prior outstanding
claim, is not affected thereby, even though his grantor
had actual notice of the claim.^^ Were a purchaser af-
fected by the fact of notice to his grantor, one could
never purchase with safety, since one can never be cer-
tain that his vendor is without notice of some adverse
claim.
§ 577. Purchasers at execution sales. A purchaser
at a sale on execution stands, in most jurisdictions, in
the position of any other purchaser for value, and
takes free from any equitable claims upon the land, or
claims based on unrecorded instruments, of which he has
no notice, actual or constructive, at the time of his
purchase.^^ In some states, however, an exception to
94. Simpson v. Montgomery, 25 Young v. Wiley, 183 Ind. 449,
Ark. 365, 99 Am. Dec. 228; Huling 107 N. E. 278; Trull v. Bigelcw,
V. Abbott, 86 Cal. 423, 25 Pac. 4; 16 Mass. 406, 8 Am. Dec. 144;
Bourquin v. Bourquin, 120 Ga. Mullins v. Butte Hardware Co.,
115, 47 S. E. 639; Johnson v. 25 Mont. 525, 87 Am. St. Rep.
Gibson, 116 111. 294, 6 N. E. 205; 430, 65 Pac. 1004; Anderson v.
Trentman v. Eldridge, 98 Ind. Ptoberts, 18 Johns. (N. Y.) 515,
525; Bailey v. Binney, 61 Me. 9 Am. Dec. 235; Odom v. Rid-
361; Clark v. McNeal, 114 N. Y. dick, 104 N. C. 515, 7 L. R. A.
287, 11 Am. St. Rep. 638, 21 N. 118, 17 Am. St. Rep. 686, 10 S.
E. 405; Church v. Ruland, 64 E. 609; Coombs v. Aborn, 29 R.
Fa. St. 432; Rogis v. Barnatowich, J. 40, 14 L. R. A. (N. S.) 1248,
36 R. I. 227, 89 Atl. 838; PhiUis 08 Atl. 817; London v. Youmans,
V. Gross, 32 S. D. 438, 143 N. 31 S. C. 147, 17 Am. St. Rep.
W. 373; Yost v. Crutcher, 112 17, 9 S. E. 775; Bowman v. Hol-
Va. 870, 72 S. E. 594. land, 116 Va. 805, 83 S. E. 393.
95. Lee v. Cato, 27 Ga. 637, 73 90. Meek v. Skeen, 60 Fed.
Am. Dec. 746; Lewis v. PhiUips, 322, 8 C. C. A. 641; riallett v.
17 Ind. 108, 79 Am. Dec. 457 Alexander, 50 Colo. 37, 34 L. R.
§ 577]
Peiorities and Eecoeding.
2259
this general rule is recognized in case the judgment
creditor is the purchaser at the execution sale, usually
on the theory that he is not a purchaser for value,^' an
exception which is denied in other states.^* And in a
few states, it seems, a purchaser at execution sale
takes merely such title as the execution debtor had.^^'^
A. (N. S.) 328, Ann. Cas. 1912B,
1277, 114 Pac. 490; Tyler v.
Johnson, 61 Fla. 730, 55 So. 870;
Gorman v. Wood, 68 Ga. 524;
Rogers v. Smith, 146 Ga. 373,
91 S. E. 414; McFadden v.
Worthington, 45 111. 362; Home
Savings & State Bank v. Peoria
Agricultural & Trotting Society,
206 111. 9, 99 Am. St. Rep. 132,
69 N. E. 17 isemble); McMillan
V. Hadley, 78 Ind. 590; Gower
V Doheney, 33 Iowa, 36; Lee v.
Bermingham, 30 Kan. 312, 1 Pac.
73; "Walker v. McKnight, 15 B.
Mon. (Ky.) 467; Dow v. Whit-
ney, 147 Mass. 1, 16 N. E. 722;
Hart V. Gardner, 81 Miss. 650,
33 So. 442, 497; Paine's Lessee
V. Mooreland, 15 Ohio, 435, 45
Am. Dec. 585; Boynton v. Win-
slow, 37 Pa. St. 315.
97. Sturdivant v. Cook, 81
Ark. 279, 98 S. W. 964; Moun-
tain Home Lumber Co. Ltd. v.
Swartwout, 30 Idaho, 559, 166
Pac. 271; Lewis v. Taylor, 96
Ky. 556, 29 S. W. 444; Banning
V. Edes, 6 Minn. 402; McAdow
V. Black, 6 Mont. 601, 13 Pac.
377; McClenaghan v. McClena-
ghan, 1 Strob. E(i. (S. C.) 295, 47
Am. Dec. 534; McKamey v.
Thorp, 61 Tex. 648; American
Sav. Bank & Trust Co. v. Hel-
gesen, 67 Wash. 572, 122 Pac. 26;
Collins V. Smith, 57 Wis. 284, 15
N. W. 192.
98. Hunter v. Watson, 12 Cal.
363, 73 Am. Dec. 543; Riley v.
Martinelli, 97 Cal. 575, 21 -L. R.
A. 33, 33 Am. St. Rep. 209, 32
Pac. 579; Lusk v. Reel, 36 Fla.
418, 51 Am. St. Rep. 32, 18 So.
582; Pugh v. Highley, 152 Ind.
252, 71 Am. St. Rep. 327, 44 L.
R. A. 392, 53 N. E. 171; Hallo-
way V. Platner, 20 Iowa, 121, 89
Am. Dec. 517; Gower v. Doheney,
33 Iowa, 36; McNamara v. Mc-
Namara, 167 Iowa, 479, 149 N.
W. 642; Columbia Bank v.
Jacobs, 10 Mich. 349, 81 Am.
Dec. 792; Sipley v. Wass, 49 N.
J. Eq. 463, 24 Atl. 463; Wood
V. Chapin, 13 N. Y. 509, 67 Am.
Dec. 62; Sternberger v. Rag-
land, 57 Ohio St. 148, 48 N. E.
811.
98a. Gray v. Denson, 129 Ala.
406, 30 So. 595; Hendrix v.
Southern Ry. Co., 130 Ala. 205,
89 Am. St. Rep. 27, 30 So. 596;
Frost V. Yonkers Sav. Bank, 70
N. Y. 553; Clute v. Emmerich,
99 N. Y. 342, 2 N. E. 6; Hicks
v. Skinner, 71 N. C. 539; Bur-
gin V. Burgin, 82 N. C. 196.
Occasionally the innocent pur-
chaser at execution sale is pro-
tected as against unrecorded in-
struments which might have been
recorded, but not as against
equities which were not sus-
ceptible of record. Tennant v.
Watson, 58 Ark. 252, 24 S. W.
495; Mississippi Valley Co. v.
Chicago, St. L. & N. 0. R. Co.,
2260 Eeal Property. [§ 578
Even though the purchaser at execution sale has
notice of the adverse claim of another, he takes the land
unaffected thereby, if the rights of the judgment cred-
itors were superior thereto, his position being analogous
to that of a purchaser with notice from a purchaser
without notice. Consequently, when, as may be the case
in a number of states,^'' the lien of the judgment or
execution is superior to an equity or conveyance which
is prior in point of time, owing to the want of notice
thereof to the judgment creditor, the purchaser under
the execution, even though having notice, is not affected
by such equity or claim. ^ But if the lien of the judg-
ment or execution is subject to a pre-existing equity or
conveyance, either because the judgment creditor had
notice thereof, or because such is the law of the state,^
the purchaser at execution sale, if he has^notice of such
outstanding right in a third person, 'akes subject
thereto."*
§ 578. Burden of proof. Regarding the question
of burden of proof, in its general aspect, in accordance
with the statement of a leading authority on the law of
evidence,^ as merely one "of policy and fairness based
on experience in the different situations," it is not
surprising that the courts, in imposing such burden in
58 Miss. 846; Lissa v. Posey, 64 (Tenn.) 420; Grace v. Wade, 45
Miss. 362, 1 So. 500. Tex. 522.
99. Ante, § 567 (m), note 47. 2. Post, § 670.
1. Stevenson v. Texas & P. Ry. 3. Koch v. Wilcoxon, 30 Cal.
Co., 105 U. S. 703, 26 L. Ed. App. 517, 158 Pac. 1048; Shirk
1215; Motley v. Jones, 98 Ala. v. Thomas, 121 Ind. 147, 16 Am.
443, 13 So. 872; Banner v. Crew, St. Rep. 381, 22 N. E. 976;
137 Ala. 617, 34 So. 822; Doyle Churchill v. Morse, 23 Iowa, 229,
V. Wade, 23 Fla. 90, 11 Am. St. 92 Am. Dec. 422; Tate v. Sanders,
Rep. 334, 1 So. 516; Guiteau v. 245 Mo. 186, 149 S. W. 485;
Wisely, 47 111. 433; Hughes v. Moyer v. Hinman, 13 N. Y. 180;
Williams, 218 Mass. 448, 105 N. Cantwell v. Barker, 62 Ore. 12, 124
E 1056; Sharp v. Shea, 32 N. Pac. 264.
J. Eq. 65; Herring v. Cannon, 4. 4 Wigmore, Evidence, §
21 S. C. 212, 23 Am. Rep. 661; 2486.
Butler V. Maury, 10 Humph.
§ 578] Priorities and Eecording. 2261
connection with the issue of purchase for value without
notice, are by no means in harmony. The claim by a
subsequent purchaser to priority may be based, in the
particular case, on the equitable doctrine of bona fide
purchaser for value, as it exists apart from statute, or
on the statutory provision for the recording of con-
veyances, and the rules as to the burden of proof are not
necessarily the same in both cases. ^ The courts do not
however, ordinarily suggest any distinction between the
two cases, in this regard, and the decisions hereafter
cited in regard to the burden of proof in the one case
are usually, so far as appears from the language of the
opinions, applicable as well in the other.
In this connection, as in others, the question of the
burden of proof is somewhat complicated by the fact
that the phrase is used in two senses, that is, in the
sense of the risk of non persuasion of the jury or other
tribunal, and also in the sense of the burden of produc-
ing evidence.^ In the decisions here referred to, in
regard to the burden of proof as to purchase for value
without notice, the courts do not ordinarily attempt to
distinguish between these two meanings of the i^hraso,
and it may l)e assumed that, in stating that the burden
of proof is on the subsequent purchaser, or on the
holder of tlie prior equity or unrecorded instrument, as
tjie case m.iy be, they mean that such person has both
burdens. o]ie of them, however, that of introrhicing evi-
dence, being susceptible of being subsequently shifted
to the other party.
There are a number of authorities to the eifect
that one who asserts an equity against a purchaser has
the burden of showing that the latter purchased with
5. See Bell v. Pleasant, 145 hoft, 1 Neb. (Unoff.) 8. 95 N. W.
Cal. 410, 104 Am. St. Rep. 61, 352.
78 Pac. 957; McAlpine v. Bur- 6. 4 Wigraore, Evidenco, §
nett, 2.3 Tex. 649; Johnson v. 2485 et seq.; 2 Chamborlayno,
Newman, 43 Tex. 628; Kimball Evidence, § 936 et srq.; Phipson,
V. Houston Oil Co., 100 Tex. 3:!6, Evidence (4th Ed.) 22 et scq.
99 S. W. 852; Sanely v. Crepen-
2262
Eeal Pkopeety,
[^ 578
nolice of the equity/ and in support of such a view it
has been suggested* that, regarding an equitable claim
as in its nature a mere right in personam, even when it
is referred to as an equitable interest or estate,** it
seems reasonable that one asserting such a claim against
a person, not originally subject thereto, merely by
reason of his having purchased certain property, should
be required to show that the purchase was under such
circumstances as to make the purchaser so subject. In
some jurisdictions, however, a contrary view has been
adopted, to the effect that the purchaser has the
burden of showing lack of notice on his part of the
prior equity.^"
7. Arnett v. Handley, 185 Ala.
Jl9, 64 So. 66; Bell v. Pleasant.
145 Cal. 410, 104 Am. St. Rep.
61, 78 Pac. 957; Kowalsky v.
Kimberlin, 173 Cal. 506, 160 Pac.
673; Johansen v. Looney, 30
Idaho, 123, 163 Pac. 303; Easter
V. Severln, 64 Ind. 375; Fields
V. Stamper, 177 Ky. 323, 197 S.
W. 919; Molony v. Ro'irke, 100
Mass. 190; Upton v. Betts, 59
Neb. 724, 82 N. W. 19; Holland
V. Brown, 140 N. Y. 344, 35 N.
E. 577 isemhle); Newton v. Mc-
Lean, 41 Barb. (N. Y.) 285;
Wilkins v. Anderson, 11 Pa. 399;
Giles V. Hunter, 10.3 N. C. — ,
194, 9 S. E. 549; Meador Bros.
V. Hines, — Tex. Civ. App. — ,
165 S. W. 915; Rogers v. Hous-
ton, 94 Tex. 403, 60 S. W. 869;
Teagarden v. R. B. Godley Lum-
ber Co., 105 Tex. 616, 154 S. W.
973; Crane's Nest Coal Co. v.
Virginia Iron, Coal & Coke Co.,
108 Va. 862, 62 S. E. 954, 1119;
Scott V. Farnan, 55 Wash. 336;
Cassiday Fork Boom & Lumber
Co. V. Terry, 69 W. Va 572, 73
S. E. 278. See Daniell, Chan-
cery Pleading and Practice (7th
Fd.) 494; Langdell, Equity
Pleading (1st Ed.) §§ 111, 141,
142; Martin v. Carlisle, 46 Okla.
268, 148 Pac. 833 (semble).
8. Langdell, Op. Cit. §§ 141,
142.
9. Ante, § 103 (by.
10. Bates v. Bigelow, 80 Ark.
86, 96 S. W. 125; Smith v. J.
R. Newberry Co., 21 Cal. App.
432, 131 Pac. 1055; Koebel v.
Doyle, 256 111. 610, 100 N. E.
154; Garritson v. Bray, 277 111.
158, 115 N. E. 195; Hume v.
Franzen, 73 Iowa, 25, 34 N. W.
490; Hannan v. Seidentopf, 113
Iowa, 658, 86 N. W. 44; Ludo-
wese V. Amidon, 124 Minn. 288,
144 N. W. 965; Connecticut Mut.
Life Ins. Co. v. Smith, 117 Mo.
261, 38 Am. St. Rep. 656, 22 S.
W. 623; Stephenson v. Kilpat-
rick, 166 Mo. 262, 65 S. W. 773;
Upton V. Betts. 59 Neb. 724, 82
N. W. 19; Gallatian v. Cunning-
ham, 8 Cow. (N. Y.) 382; At-
lanta & C. A. L. R. Co. V. Victor
Mfg. Co., 93 S. C. 397, 76 S. E.
1091; Balfour v. Hopkins, 93
Fed. 570; Tobey v. Kilbourne,
222 Fed. 760, 138 C. C. A. 308;
§ 578]
Peioeities and Eecording.
2263
In some jurisdictions one who claims priority as a
bona fide purchaser over an earlier conveyance by
reason of its absence from the records, has the burden
of showing that he is such a purchaser, that is, that he
paid value without notice of such unrecorded convey-
ance.ii The theory of these decisions appears ordi-
narily to be that, the conveyance, though not recorded,
being perfectly valid as a conveyance of the legal title'
and insufficient as such only as against purchasers for
value without notice, it is for the person seeking to
bring himself within this privileged class to show that
he is properly a member thereof. In a considerable
number of states, on the other hand, one claiming under
an unrecorded conveyance is regarded as havino- the
burden of showing that a subsequent purchase? had
notice of such conveyance,^^ a view which has oc-
See Boone v. Chiles, 10 Pet. (U.
S.) 177, 211, 9 L. Ed. 3S8; Atty.
Gen. V. Biphosphated Guano Co.,
11 Ch. Div. 336.
11. Bell V. Pleasant, 145 Cal.
410, 104 Am. St. Rep. 61, 78 Pac.
958; Gardner v. Early, 72 Iowa,
518, 34 N. W. 311; Ludowese v.
Amidon, 124 Minn. 288, 144 N
W. 965; Shraiberg v. Hanson,
138 Minn. 80, 163 N. W. 1032;
Brown v. Tuschoff, 235 Mo. 449,
138 S. W. 497; Dundee Realty
Co. V. Leavitt, 87 Neb. 711, 30
L_ R. A. (N. S.) 389, 127 N. W.
1057; Kimball v. Houston Oil
Co., 100 Tex. 336, 99 S. W. 852;
Ryle V. Davidson, 102 Tex. 233
115 S. W. 28; Scott v. Farnham,
55 Wash. 336, 104 Pac. 639.
In Bruce v. Overton, 54 Okla.
350, 154 Pac. 340, the burden of
proof is placed on the subsequent
purchaser on the ground that the
facts are peculiarly within his
knowledge.
In Texas, apparently, while
the burden of proof rests on
a subsequent purchaser, it doer,
not rest on a subsequent credi-
tor. Rule V. Richards, — Tex.
Civ. App. — 159 S. W. 386.
A subsequent mortgagee is a
purchaser and not a creditor
within this rule. Turner v.
Cochran, 94 Tex. 480, 61 S W
£23.
12. Gratz v. Land & River
Imp. Co., 82 Fed. 381, 27 C. C.
A. 305, 40 L. R. A. 393; Center
V. Planters' & M. Bank, 22 Ala.
743; Richards v. Steiner Bros.,
166 Ala. 353, 52 So. 200; Osceola
Land Co. v. Chicago Mill &
Lumber Co., 84 Ark. 1, 103 S.
W. 609; Jones v. Ainell, 123
Ark. 532, 186 S. W. 65; Fein-
berg v. Stearns, 56 Fla. 279, 131
Am. St. Rep. 119, 47 So. 797;
Ai)thony v. Wheeler, 130 111.
128, 17 Am. St. Rep. 281, 22 N.
E. 494; Lowden v. Wilson, 233
111. 340, 84 N. E. 245; McGuire
v. Gibbert, 270 111. 160, 110 N.
2264
Eeal Property.
[§ 578
casionally been in terms based on the theory that one
who was negligent in having his conveyance recorded
cannot thereby impose a burden upon another,^'^ and
occasionally on the theory that one who purchases with
notice of the prior conveyance is guilty of fraud, and
that this will never be presumed.^^
It has been held that, even though the burden is on
the adverse claimant as against a purchaser to show
notice to the latter, a purchaser who admits notice has
the burden of showing that the one from whom he
purchased was a bona fide purchaser, so that he
would be protected as a purchaser with notice from a
purchaser without notice. ^^
One claiming as a purchaser for value without
notice has, in the majority of jurisdictions, the burden
of proving the paj^ment of a valuable consideration, this
being regarded as a matter peculiarly within his knowl-
edge.^^ In some states, however, a contrary view has
E. 377 (in suit in equity);
Citizens' Bank v. Julian, 153
Jnd. 655, 55 N. E. 1007; Hoskins
V. Carter, 66 Iowa, 638, 24 N.
W. 249; Butler v. Stevens, 26
Me. 484; Shotwell v. Harrison,
22 Mich. 410; Sheldon v. Powell,
31 Mont. 249, 107 Am. St. Rep.
429, 78 Pac. 491; McGrath v.
Norcross, 78 N. J. Eq. 120, 79
Atl. 85, 82 N. J. Eq. 367. 91 Atl.
1069; Brown v. Volkenning, 64
N. Y. 76; Advance Thresher Co.
V. Esteb, 41 Ore. 469, 69 Pac.
447; Wilkins v. McCorkle, 112
Tenn. 688, 80 S. W. 834; Daly
V. Rizzutto, 59 Wash. 62, 29 L.
R. A. (N. S.) 467, 109 Pac. 276;
South Penn. Oil Co. v. Blue
Creek Development Co., 77 W.
Va. 682, 88 S. E. 1029; 01m-
stead v. McCrory, 158 Wis. 323,
148 N. W. 871.
13. See Boggs v. Warner, 6
Watts. & S. (Pa.) 439; Hoyt v.
Jones, 31 Wis. 389.
14. Bush V. Golden, 17 Conn.
594; Rogers v. Wiley, 14 111.
C5, 56 Am. Dec. 491; Holmes v.
Stout, 10 N. J. Eq. 419; Brown
V. Volkenning, 64 N. Y. 76
(semble) ; Kimball v. Houston
Oil Co., 100 Tex. 336, 99 S. W.
852; Vest v. Michie, 31 Gratt.
(Va.) 149, 31 Am. Rep. 722;
Sheffey v. Bank of Lewisburg,
33 Fed. 315.
In Advance Thresher Co. v.
Esteb, 41 Ore. 469, 69 Pac. 447,
the burden is regarded as rest-
ing on the claimant under the
unrecorded conveyance, apparent-
ly on the theory that he has
merely an equitable title.
15. Biggs V. Hoffman, 60
Wash. 495, 111 Pac. 576.
16. Lake v. Hancock, 38 Fla.
53, 56 Am. St. Rep. 159, 20 So.
§ 578]
Priorities and Eecording.
2265
been asserted as regards a purchaser claiming as against
a prior unrecorded conveyance/' especially when tho
later conveyance recites the payment of a substantial
consideration.^^ And in one state, apparently, one as-
serting an equity as against a subsequent purchaser has
the burden of showing the non payment by the latter
of a valuable consideration.^'' But even though A,
claiming as against a prior unrecorded conveyance by
the same grantor, may reasonably be subjected to the
burden of proving his payment of a valuable considera-
tion, it does not seem that one claiming under A should
be subjected to a like burden of proving such pay-
ment by A, it not being a matter peculiarly within his
knowledge, as it is within A's knowledge.
By the weight of authority, the subsequent pur-
chaser does not satisfy the requirement that he show
pa^aiient of a valuable consideration by showing a
recital to that effect in his conveyance, such a declara-
tion not being regarded as sufficient to affect the rights
811; McGuire v. Gilbert, 270 111.
160, 110 N. E. 377; Roseman v.
Miller, 84 111. 297; Kruse v.
Conklin, 82 Kan. 358, 36 L. R.
A. (N. S.) 1124, 108 Pac. 856;
Perkins v. Gregory, 87 Kan.. 303,
124 Pac. 168; Shotwell v. Har-
rison, 22 Mich. 410; Lloyd v.
Simons, 90 Minn. 237. 95 N. W.
003; American Exchange Nat.
Bank v. Fockler, 49 Neb. 713,
68 N. W. 1039; King v. Mc-
Rackan, 168 N. C. 621, 84 S. E.
1027, 171 N. C. 752, 88 S. E.
226; Morris v. Daniels, 35 Ohio
St. 406; Weber v. Rothchild, 15
Ore. 385, 3 Am. St. Rep. 162, 15
Pac. 650; Union Canal Co. v.
Young, 1 Whart. (Pa.) 410, 30
Am. Dec. 212; Lloyd v. Lynch,
28 Pa. 419; Bugg v. Seay, 107
Va. 648, 122 Am. St. Rep. 877,
60 S. E. 89; Harvey v. Mutter,
66 W. Va. 208.
17. Gratz v. Land & River
Imp. Co., 27 C. C. A. 305, 82
Fed. 381, 40 L. R. A. 393: Kim-
ball V. Houston Oil Co., 100 Tex.
336, 99 S. W. 852; Hoyt v. Jones,
31 Wis. 389.
18. Ryder v. Rush. 102 111.
338; Hiller v. Jones, 66 Miss.
646, 6 So. 465; Harrison v.
Moore, — Mo. — , 199 S. W. 188;
Mullins V. Butte Hardware Co.,
25 Mont. 525, 87 Am. St. Rep.
430, 65 Pac. 1004; Jackson v.
McChesney, 7 Cow. (N. Y.) 360;
Wood v. Chapin. 13 N. Y. 509,
C7 Am. Dec. 62; Lacustrine
Fertilizer Co. v. Lake Guano
& Fertilizer Co., 82 N. Y. 476.
See McConnell v. Citizens' State
Bank, 130 Ind. 127, 27 N. E.
616.
19. Teagarden v. R. H, dodley
Lumber Co., 105 Tex. 616. 154
S W. 973; Kenedy Pasture Co.
226G
Keal Propeety.
[§ 578
of third persons.-" But, as above indicated, a different
view has in some states been asserted in reference to
a purchaser claiming as against a prior unrecorded
conveyance.-^
It is not infrequent!}' stated that upon proof by the
subsequent purchaser of payment by him of a valuable
consideration, the burden of proof shifts to the prior
claimant to show notice to the purchaser.-^ The state-
ment referred to in effect regards tb.^ burden of pro-
ducing evidence both of payment of value and lack of
V. State, — Tex. Civ. App. — ,
196 S. W. 287.
20. Langley v. Pulliam, 162
Ala. 142, 50 So. 365; Galland
V. Jackman, 26 Cal. 79, 85 Am.
Dec. 172; Black Eagle Oil Co.
-I. Belcher, 22 Cal. App. 258, 133
Pac. 1153; Lake v. Hancock, 38
Fla. 53, 56 Am. St. Rep 159, 20
So. 811; Roseman v. Miller, 84
HI. 299; SiUyman v. King, 36
Iowa, 207; Minneapolis & St. L.
R. R. V. Chicago, M. & St. P.
R. R., 116 Iowa, 681, 88 N. W.
1082; King v. Mead, 60 Kan. 539,
57 Pac. 113; Shotwell v. Harrison,
22 Mich. 410; Bishop v. Schneider,
46 Mo. 472, 2 Am. Rep. 533;
Ranney v. Hardy, 43 Ohio St.
157; Adams Oil & Gas Co. v.
Hudson, 55 Okla. 386, 155 Pac.
220; Richards v. Snyder, 11 Ore.
501, 6 Pac. 186; Lloyd v. Lynch,
28 Pa. 419, 70 Am. Dec. 137;
Davidson v. Ryle, 103 Tex. 216,
124 S. W. 616 (but recital may
be considered); Bugg v. Seay,
107 Va. 648, 122 Am. St. Rep.
877, 60 S. E. 89; Johnson v.
Georgia, L. & T. Co., 72 C. C.
A. 639, 141 Fed. 593.
21. Ante, this section, note
18.
22. Barton v. Barton, 75 Ala.
400; Coskrey v. Smith, 126 Ala.
120, 28 So. 11; Kendrick v.
Colyar, 143 Ala. 597, 42 So. 110;
Osceola Land Co. v. Chicago
Mill & Lumber Co., 84 Ark. 1,
103 S. W. 609; Williams v.
Smith, 128 Ga. 306, 57 S. E.
801; Walter v. Brown, 115 Iowa,
360, 88 N. W. 832; Kruse v.
Conklin, 82 Kan. 358, 36 L. R.
A. (N. S.) 1124, 108 Pac. 856;
Hooper v. De Vries, 115 Mich.
231, 73 N. W. 132; Wright v.
Larson, 51 Minn. 321, 38 Am.
St. Rep. 504, 53 N. W. 712;
Ward v. Ishill, 73 Hun (N. Y.)
550, 26 N. Y. Supp. 141 {sem-
bJe) ; Morris v. Daniels, 35 Ohio
St. 406; Varwig v. Cleveland, C.
C. & St. L. R. Co., 54 Ohio St.
455, 44 N. E. 92. See Wood v.
Chapin, 13 N. Y. 509, 523, 67
Am. Dec. 62; Lacustrine Ferti-
lizer Co. v. Lake Guano & Fer-
tilizer Co., 82 N. Y. 476; Smith
V. Pure Strains Farm Co., 180
N. Y. App. Div. 703, 167 N. Y.
Supp 877; Atkinson v. Greaves,
70 Miss. 42, 11 So. 688; Adams
Oil & Gas Co. V. Hudson, 55
Ckla. 386, 155 Pac. 220; Daly
V. Rizzutto, 59 Wash. 62, 29 L.
R. A. (N. S.) 467, 109 Pac.
276.
"For it is not consistent with
the ordinary conduct of men, who
§ 579] Priorities and Recordixg. 2267
notice as in the first place upon the subsequent pur-
chaser, who may, however, by intioducing evidence of
payment of value, shift to the prior claimant the burden
of introducing evidence to show the existence of notice.
This does not, however, affect the burden of convincing
the jur}^, by a preponderance of evidence, that the
purchase was not only for value but that it was also
without notice. The burden in this regard remains, as
it was at the commencement of the action, upon the
subsequent purchaser.^^
§ 579. Lis pendens. The doctrine of lis pendens
by which one purchasing land from a party to a pending
litigation concerning such land takes subject to the re-
sults of such litigation, is properly based, it would seem,
not on the theory that such purchoser has notice of the
adverse claim, but rather on the principle that, pending
the litigation, a party thereto cannot transfer his rights
in the land to others, so as to prejudice another ])arty
to the litigation, since otherwise the decision might be
utterly ineffectual.^* The courts, however, frequently
refer to the doctrine as constituting a branch of the law
of notice, a pending litigation being said to be notice to
purchasers from parties thereto, and this is, in most
must be supposed to act with 13 Am. St. Rep. 258, 21 Pac. 710;
reference to their own interests, Norris v. He, 152 111. 190, 43
that valuable consideration should Am. St. Rep. 233, 38 N. E. 762;
be paid for that which the Watson v. Wilson, 2 Dana (Ky.)
purchaser knows does not belong 406, 26 Am. Dec. 459; Turner
to the seller." Stayton, C. J., in v. Houpt, 53 N. J. Eq. 526, 33
Rogers v. Pettus, 80 Tex. 425, 15 Atl. 28; Lamont v. Cheshire, 65
S. W. 1093. N. Y. 30; Arrington v. Arring-
23. See Errett v. Wheeler, 109 ton, 114 N. C. 151, 19 S. E. 351;
Minn. 157, 26 L. R. A. (N. S.) Baker v. Leavitt, 54 Okla. 70,
816, 123 N. W. 414; Dundee 153 Pac. 1099; Dovey's Appeal,
Refclty Co. v. Leavitt, 87 Neb. 97 Pa. St. 153; Newman v. Chap-
711, 30 L. R. A. (N. S.) 389, 127 man, 2 Rand. (Va.) 93, 14 Am.
N. W. 1057. Dec. 776; Linn v. Collins, 77
24. Bellamy v. Sabine, 1 De W. Va. 592, Ann. Cas. 1918C, 86,
Gex & J. 566; Cherry v. Dicker- 87 S. E. 934. See 2 Pomeroy
son, 128 Ark. 572, 194 S. W. 690; Eq. .Tur. § 632; editorial note
Cheever v. Minton, 12 Colo. 557, 20 Harv. Law Rev. 488.
2268
Real Property.
[§ 579
cases, the result of the doctrine. Consequently it is
not improper to refer to the doctrine in connection with
the law of notice.
The doctrine of lis pendens is sometimes spoken of
as being peculiarly applicable to equitable proceedings,
on the ground that, in the case of a legal action, a pur-
chaser pending the litigation can take only the title of
his vendor, irrespective of notice; but this latter state-
ment in regard to legal actions sees to involve but
another statement of the doctrine of lis pendens, and the
doctrine is regularly applied in the case of proceedings
concerning land at law, as well as in equity.^^ Applica-
tions of the doctrine accordingly occur in connection
with actions of ejectment,^^ as well as in connection with
equitable proceedings, such as suits to foreclose a mort-
gage or enforce any other lien,^^ to establish a trust in
land,^^ to set aside a conveyance,^^ or for partition.^°
25. See 2 Pomeroy, Eq. Jur.
§ 633; Tilton v. Cofield, 93 U.
S. 163, 23 L. Ed. 858; Cheever
V. Minton, 12 Colo. 557, 13 Am.
St. Rep. 258, 21 Pac. 710; Norris
V He, 152 111. 190, 43 Am. St.
Rep. 233, 38 N. E. 762; Smith
V. Hodson, 78 Me. 180, 3 Atl.
276; Mcllwrath v. Hollander, 73
Mo. 105, 39 Am. Rep. 484; La-
ment V. Cheshire, 65 N. Y. 30;
Rollins V. Henry, 78 N. C. 342;
Houston V. Timmerman, 17 Ore.
499, 4 L. R. A. 716, 11 Am. St.
Rep. 848, 21 Pac. 1037; Metcalfe
V. Pulvertoft, 2 Ves. & B. 200.
26. Walden v. Bodley, 9 How.
(U. S.) 34, 13 L. Ed. 36;
Wetherbee v. Dunn, 36 Cal. 147,
95 Am. Dec. 166; Elizabethport
Cordage Co. v. Whitlock, 37 Fla.
190; Glanz v. Ziabek, 233 111. 22,
84 N. E. 36; Smith v. Hodsdon,
78 Me. 180, 3 Atl. 276; RoUins
V. Henry, 78 N. C. 342; Snively
V. Hitechew. 57 Pa. St. 49.
27. Owen v. Kilpatrick, 96 Ala.
421; Burleson v. McDermott, 57
Ark. 229, 21 S. W. 222; Norris
V He, 152 111. 190, 43 Am. St.
Rep. 233, 38 N. E. 762; O'Brien
V. Putney, 55 Iowa, 292, 7 N.
W. 615; Bell v. Diesem, 86 Kan.
364, 121 Pac. 335; Rosenheim v.
Hartsock, 90 Mo. 357, 2 S. W.
473.
28. Walker v. Elledge, 65 Ala.
51; Pratt v. Hoag, 5 Duer (N.
Y.) 631.
29. Mellen v. Moline Malleable
Iron Works. 131 U. S. 352, 33
L. Ed. 178; Evans v. Welch, 63
Ala. 250; Lenders v. Thomas, 35
Fla. 518, 48 Am. St. Rep. 255,
17 So. 633; Watson v. Wilson, 2
Dana (Ky.) 406, 26 Am. Dec.
459; Cossett v. O'Ri'.ey. 160
Mich. 101, 125 N. W. 39; Jack-
son V. Andrews, 7 Wend. (N.
Y.) 152, 22 Am. Dec. 574.
30. Skvor V. Weis, 153 Iowa,
720, 134 N. W. 85; Hale v.
§ 579] Priorities and Recording. 2269
In most- jurisdictions, apart from statute, a pro-
ceeding is pending for the purpose of this doctrine, only
when the original pleading in the suit, that is, the dec-
laration, bill, complaint, or petition, as the case may
be, has been filed, and the defendant whose interest is
sought to be acquired has been served with process."'^
But by statute in many of the states the original uoe-
trine of lis pendens has been modified by statutory pro-
visions requiring a notice of lis pendens to be register-
ed or recorded in some particular mode, in order that a
purchaser for value and without actual notice may be
charged with notice of the litigation.^^
The doctrine of lis pendens applies not only in
favor of a plaintiff as against a transferee of a defend-
ant, but also in favor of a defendant as against a trans-
feree of a plaintiff, though its application is naturally
called for much less frequently in the latter case. The
lis pendens in favor of a defendant would seem properly
to commence, in the absence of a statute requiring the
defendant to file a notice, at the same time as that in
favor of a plaintitf, that is, so soon as the plaintiff's
Ritchie, 142 Ky. 424, 134 S. W. 509, 36 L. Ed. 521; Zeigler v.
474. Daniel, 128 Ark. 403, 194 S. W.
31. See Banks v. Thompson, 246; Bensley v. Mountain Lake
75 Ala. 531; Majors v. Cowell, Water Co., 13 Cal. 306, 73 Am
51 Cal. 478; Norris v. He, 152 Dec. 575; Tripp's Adm'r v. Bailey,
111. 190, 43 Am. St. Rep. 233; 152 Ky. 369, 153 S. W. 452; Alter-
Allen V. Poole, 54 Miss. 323; auge v. Christiansen, 48 Mich. 60,
Jackson v. Dickenson, 15 Johns. 11 N. W. 806; Jorgenson v.
(N. Y.) 309, 8 Am. Dec. 236; Minneapolis & St. L. Ry. Co., 25
Barry v. Hovey, 30 Ohio St. Minn. 206: Wood v. Price,
344; Shufeldt v. Jefcoat, 50 Okla. 79 N. J. Eq. 620, 38 L. R. A.
790, 151 Pac. 595; Diamond v. (N. S.) 772, Ann. Cas. 1913 A.
Lawrence County, 37 Pa. St. 35:i; I^^IO, 81 Atl. 983; Sheridan v.
Staples V. White, Handley & Co., Andrews, 49 N. Y. 478; Todd v.
88 Tenn. 30, 12 S. W. 339; Han- Outlaw, 79 N. C. 235; Spragiie
rick V. Gurley, 93 Tex. 458. 54 v. Stevens, 37 R. I. 1, 91 Atl.
S. W. 347, 55 S. W. 119. 56 S. 4.!; Vicars v. Sayler, 111 Va.
W. 330. 307, 68 S. E. 988; Phillips v.
32. 2 Pomeroy, Eq. Jur. § 640. Tompson, 73 Wash. 78, Ann. Cas.
See Smith v. Gale, 144 U. S 1914D, 672, 131 Pac. 461.
2 R. P.— 68
2270
Eeal Propeety.
[§ 570
original pleading has been filed, and defendant has
been served with process,^-^ except in so far, perhaps,
as a right to affirmative relief may be asserted by de-
fendant in his answer or cross complaint.^*
A purchaser is affected by a lis pendens only if the
land in litigation is described in the pleadings with
such reasonable certainty as to enable the purchaser
to know that it is the land which he is proposing to
purchase. ^^
The doctrine of lis pendens applies, not only against
a person who acquired the property in litigation from a
party thereto by voluntary conveyance, but also against
one who acquires the interest of such a party by
judicial''" or execution^" sale. It does not apply as
against one who, pending the litigation, acquires the
interest or supposed interest of one who is not a party
33. Stein v. McGratb. 128 Ala.
175, 30 So. 792; Welton v. Cook,
61 Cal. 481; Hurd v. Case, 32
111. 45; Olson v. Leibpke, 110
Iowa, 594, 80 Am. St. Rep. 327,
81 N. W. 801; S. C. HaU Lum-
ber Co. V. Gustin, 54 Mich. 624
20 N. W. 616; Jorgenson v.
Minneapolis & St. L. Ry. Co., 25
Minn. 206; Bailey v. McGinnis,
57 Mo. 362; Moss v. N. Y. Ele-
vated Ry. Co., 27 Abb. N. C. 318;
Zane v. Fink, 18 W. Va. 693.
34. Bridget v. Exchange Bank,
126 Ga. 821, 56 S. E. 95; Mc-
Guire v. Gilbert, 270 111. 160.
110 N. E. 377; Hart v. Hayden,
79 Ky. 348; Garver v. Graham,
6 Kan. App. 344, 51 Pac. 344;
Compare, S. C. Hall Lumber Co.
V. Gustin, 54 Mich. 624, 20 N.
W. 616, and see 7 Columbia Law
Rev. p. 282; Mullanphy Sav.
Bank v. Schott, 135 lU. 655, 25
Am. St. Rep. 401. 26 N. E. 640.
35. Miller v. Sherry, 2 Wall
(U. S.) 237, 17 L. Ed. 827;
Mitchell V. Amador Canal &
Mining Co., 75 Cal. 464, 17 Pac.
246: Norris v. He, 152 111. 190,
43 Am. St. Rep. 233, 38 N. E.
762; Boyd v. Emmons' Adm'r,
103 Ky. 393, 45 S. W. 364;
Allan v. Poole, 54 Miss. 323;
Griffith V. Griffith, 9 Paige (N.
Y.) 317; Todd v. Outlaw, 79 N.
C. 235; McWhorter v. Brady, 41
Okla. 383, 140 Pac. 782; Lewis
V. Mew, 1 Strob. Eq. (S. C.)
180; Boshear v. Lay, 6 Heisk.
(Tenn.) 163; Seibel v. Bath, 5
Wyo. 409, 40 Pac. 756.
.^.6. Randall v. Duff, 79 Cal.
115, 3 L. R. A. 754, 756, 21 Pac.
610; Randall v. Lower, 98 Ind.
255; Rider v. Kelsey, 53 Iowa,
367. 5 N. W. 509.
37. Brinkley v. Sanford. 99
Ga. 130, 25 S. E. 32; Ellis v.
Sisson, 96 111. 105; Gibbs v.
Davis, 93 Ky. 466, 20 S. W. 385;
Ettenborough v. Bishop, 26 N. J.
Eq. 262.
§ 579]
Peioeities and Eecoedixg.
2271
thereto.'"^^ It applies, it has been decided, as against
one acquiring a judgment lien upon the property of a
party to the pending litigation.^^
A suit pending in one county which affects land
lying in another county of the same state has been
regarded as binding on a purchaser from a party there-
to,^ ^ and a suit pending in a federal court would seem
to affect a purchaser of land lying anywhere in the
same district.^ ^ The full faith and credit clause of the
Federal Constitution has been held, however, not to re-
quire the court of one state to subject a purchaser of
land hdng therein to the results of litigation in a court
of another state.^^
There is a conflict in the decisions as to whether a
suit to assert a conveyance or enforce an incumbrance,
38. Miner v. Sherry, 2 Wall.
(U. S.) 237, 17 L. Ed. 827;
Scarlett v. Gorham, 28 111. 319;
Parsons v. Hoyt, 24 Iowa, 154;
Harrod v. Burke, 76 Kan. 909,
92 Pac. 1128; Herrington v.
Herrington, 27 Mo. 560; Merrill
V. Wright, 65 Neb. 794, 101 Am.
St. Rep. 645, 91 N. W. 697;
Allen V. Morris, 34 N. J. Eq.
159; Parks v. Jackson, 11 Wend.
(N. Y.) 442, 25 Am. Dec. 656;
Green v. Rick, 121 Pa. St. 130,
2 L. R. A. 48, 6 Am. St. Rep.
760, 15 Atl. 497; Johnson v. Ir-
win, 16 Wash. 652, 48 Pac. 345.
39. Stout V. Lye, 103 U. S.
66, 26 L. Ed. 428; Cooney v.
Coppock, 119 Iowa, 486, 93 N.
W. 495; Newdigate v. Jacobs, 9
Dana (Ky.) 17; Fuller v. Scrib-
ner, 76 N. Y. 190; Stewart v.
Wheeling & L. E. Ry. Co., 5:3
Ohio St. 151, 29 L. R. A. 438, 41
N. E. 247; Cradlebaugh v.
Pritchett, 8 Ohio St. 647, 72 Am.
Dec. 610; Winchester v. Paine,
11 Ves. Jr. 194; Trye v. Aid-
borough, 1 Ir. Ch. 666.
40. Marshall v. Whitley, 136
Ga. 805, 72 S. E. 244; Wick-
liffe's Ex'r v. Breckenridge's
Heirs, 1 Bush (Ky.) 427. And
see Carr v. Lewis Coal Co., 96
Mo. 149, 9 Am. St. Rep. 328, 8
S. W. 907. But a contrary view
is expressed in Benton v. Shafer,
47 Ohio St. 117, 7 L. R. A. 812.
24 N. E. 197.
41. Rutherglen v. Wolf, 1
Hughes 78, Fed. Cas. No. 12,175;
Atlas Ry. Supply Co. v. Lake
& River Ry. Co., 134 Fed. 503;
Wilson V. Hefflin, 81 Ind. 35;
Stewart v. Wheeling & L. E. Ry.
Co., 53 Ohio St. 151, 29 L. R. A.
438, 41 N. E. 247.
42. Shelton v. Johnson, 4
Sneed (Tenn.) 672; Carr v. Lewis
Coal Co., 96 Mo. 149, 9 Am. St.
Rep. 328, 8 S. W. 907 (dictum).
And see Holbrook v. New Jersey
Zinc Co. 57 N. Y. 616. Contra,
Fletcher v. Ferrell, 9 Dana (Ky.)
372.
2272
Eeal Pkoperty.
[§ 579
such as a mortgage, which has not been recorded, is
sufficient to make a purchaser of the land pending the
litigation a purchaser with notice, so as to render the
unrecorded instrument effective as against him.'*^
43. That it does have svch
effect, see Boiling v. Carter, 9
Ala. 921; Thorns v. Southard, 2
Dana (Ky.) 475. That it does
not, see Newman v. Chapman,
2 Rand. (Va.) 93, 14 Am. Dec.
766; Douglass v. McCrackin, 52
Ga. 596. See, also, McCutchen
V. Miller, 31 Miss. 65, 85; Page
V. Street, Speers Eq. 159, 212.
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