108 Ky. 495 | Ky. Ct. App. | 1900
Opinion of the coukt by
Affikming.
C. D. Chenault 'became the owner of a parcel of ground situated on the corner of First and Main streets, in the city of Richmond, upon which a hotel was situated, known as the “Frances House.” That building was destroyed
On December 8, 1877, Chenault conveyed to the appel-lee, McCreary, brick storehouse No. 2. Subsequently he conveyed the other brick storehouses, Nos. 1 and 3, and by a succession of conveyances the appellant, Mrs. Irvine,
The appellee testifies that, before he bought the property, Brawner and Chenault (Brawner then having a title bond for the lot from Chenault, upon which McCreary’s house is situated), pointed out to him this alley, and told him that it was left open for the use of the three houses. Chenault does not contradict him on this question, but simply says he has no recollection of having made that statement to him. The testimony also tends to show that appellee’s tenants, since the time he purchased it until this controversy arose, in about 1896, used the alley for the purpose of carrying their goods, boxes, etc., from .the street into the cellar under the house. The appellee, as well as his tenants, claimed' that they had the right to so use the alley. He also claimed that at the time he bought the property there was no door to close the alley from Main street. White there is proof that most of the time he has owned the property a door has inclosed the alley from the street, still that does not seem to have interfered with the use by appellee’s tenants of the alley. There
Washb. Easem. p. 81, says: “It may be considered as settled in the United States that, on the conveyance of one of several parcels of land belonging to the same owner, there is an implied grant or reservation, as the case may be, of all apparent and continuous easements or incidents or property which have been created or used by him during the unity of possession, though they could then have had no legal existence apart from his general ownership.” It is said in Kent, Comm., 467: “Some things will pass by the conveyance of land, as incidents appendant or appurtenant thereto. This is the case with a right of' way or other easement appurtenant to land. . . . And,, if a house or store be conveyed, everything passes which belongs to and is in use for it, as an incident or appurtenance.” In the case of Insurance Co. v. Patterson, 103 Ind., 582, 2 N. E., 188, it is said: “Where, during the unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which at the same time of the severance is in use, and is reasonably necessary for the fair enjoyment of the other, then, upon a severance of such ownership, whether by voluntary alienation or by judicial proceedings, there arises-by implication of law a grant or reservation of the right to continue such use. In such case the law implies that with the grant of the one an easement is also granted or reserved, as the case may be, in the other, subjecting' it to the burden of all such visible uses and incidents as are reasonably necessary to the enjoyment of the dominant heritage, in substantially the same condition in which it appeared and was used when the grant was made.” In the case of Lampman v. Milks, 21 N. Y., 505, it is said:.