delivered the opinion of the Court.
The defendants, Mitchell and Powers, petition for relief from the judgment of both courts below, establishing easements in favor of the plaintiff-respondents, Castellaw et vir., as owners of a corner filling station lot, over two small strips upon the two adjoining lots of the petitioners, all in Block 42 of the City of Gilmer. The trial was by the court, and no fact findings appear in the record. For further details of the proceеdings below, see the opinion of the Court of Civil Appeals,
The location of the strips and lots in question is, for our purposes, sufficiently indicated by the following sketch (with arbitrary lot numbers):
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As indicated, the alleged servitudes are (x) a driveway connecting the filling station (lot 3) with Tyler Street via lot 2 and (y) the northerly two and a half feet of a wash shed or rack of the station which projects from its main location on lоt 3 onto lot 1 to that extent. As decreed by the courts below, the driveway is to be without limit in point of time, but the other is to expire on removal of the projecting part of the wash shed for any cause. The easements derive respectively from two 1938 conveyances of a Mrs. Sallie Stapp, who then owned all three lots, the driveway being said to arise by way of express reservation in her deеd of lot 2 to Malcolm Smith and wife, while the temporary wash shed easement is implied from circumstanes incident to her deed of lot 1 to her daughter, Mrs. Isabelle Anderson.
Throughout 1938 and for many years previously and subsequently, lot 3 was leased out by Mrs. Stapp and has been continuously used as a filling station under those leases, the last of which was apparently still in effect when she died sometime between 1945 and 1948. Respondent, Mrs. Castellaw, who is *60 another daughter of Mrs. Stapp, succeeded to ownership of the filling station as her devisee and, in effect, renewed the last lease made by Mrs. Stapp, so that the term will expire in late 1953.
As to the driveway easement, Mrs. Stapp’s conveyance of lot 2 to Smith and wife was by general warranty deed, which is copied in full in the footnote. C1) Obviously, the only words suggestive of a resеrvation are those following the metes and bounds description of the full lot and reading as follows:
(O
“ ‘That I, Mrs. Sallie Stapp, a widow, of the County of Upshur, State of Texas, for and in consideration of the sum of One Thousand and no/100 Dollars to me in hand paid by Malcolm Smith and wife Blynn Smith as follows: Cash in hand the receipt of which is hereby acknowledged and confessed, have granted, sold and conveyed, and by these рresents do grant, sell and convey, unto the said Malcolm Smith and wife, Blynn Smith, of the county of Upshur, State of Texas,
“ ‘All that certain portion of Block 42 of the City of Gilmer, Texas, as shown by the plan and plat of said city which is located in Upshur County, Texas, as described below:
“ ‘Beginning 67 feet in. W of S.E. corner of Block 42 on Tyler Street, same being the S.E. Corner of Judie Barnwell’s lot;
Thence N 59 feet;
Thence E 29 feet;
Thence S 59 feet;
Thence West 29 feet to place of beginning.
“ ‘It is expressly agreed and understood that grantors, thеir heirs or assigns, shall not build or permit any one else to construct any type of building or anything else on the portion of lot described as follows; and that grantor shall have the right to use this part of said lot as a driveway:
“ ‘Beginning at the S.E. corner of above described lot;
Thence west 9 feet;
Thence North 23 feet;
Thence east 9 feet;
Thence South 23 feet to place of beginning.
“ ‘To have and to hold the above described premises, together with all and singular the rights and appurtenances thereto in anywise belonging unto the said Malcolm Smith and wife, Blynn Smith, their heirs and assigns forеver and I do hereby bind myself and my heirs, executors and administrators, to warrant and forever defend, all and singular the said premises unto the said Malcolm Smith and wife, Blynn Smith, their heirs and assigns, against every person whomsoever lawfully claiming, or to claim the same, or any part thereof.
“ ‘Witness my hand at.
.this 28th day of March. 1938.
“‘(S) Mrs. Sallie Stapp.’”
*61 “ ‘It is expressly agreed and understood that grantors, their heirs or assigns, shall not build or permit any one else to construct any type of building or anything else on the portion of lot described as follows; and that grantor shall have the right to use this part of said lot as a driveway.’ ” (followed by metes and bounds description of the driveway strip).
Clearly, if this single provision, which itself contains no words of inheritance or other words of art, were lifted out of the instrument, the latter would be a grant of complete and exclusive dominion over the lot. The word “grantors” in the very first part of the provision obviously was intended to mean “grantees.” The grantees, Smith and wife, conveyed the lot to petitioners Mitchell and Powers in 1947 (some ten years later) and in their deed changed “grantors” to read “grantees,” but otherwise used the exact “reservation” clause of the Stapp deed.
The view of petitioners is that the provision in question either amounted to nothing morе than a so-called easement “in gross,” that is, a merely personal right of Mrs. Stapp, which did not pass by her devise of the filling station lot to respondent, Mrs. Castellaw, or that the provision is repugnant to the grant of the whole lot and should therefore be treated as if never written. Further consideration of the matter confirms our original conclusion that the courts below properly rejected these contentions.
1 That an easement of this kind may be validly reserved in a deed of the fee simple title is beyond question. Stuart v. Larabee, Tex. Civ. App.,
So far as the point of repugnance goes, if the granting, habendum or warranty clause had contained the mere phrase “subject to the reservation elsewhere made herein,” or if the reservation clause had but included the words “notwithstanding any other provision of this instrument,” there would be little doubt
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from the whole instrument that a reservation was intended. The situation is clearly different from one in which, for example, the usage were for very general purposes, or for a specific purpose but purportedly applicable to every part of the lot conveyed. In Hansen v. Bacher, supra, which upheld a reservation for temporary occupancy by the grantor in an otherwise fee simple, general warranty deed, and is quoted from at length in the opinion below, Judge Powell aptly points out that in a sense every reservation conflicts with the grant, and the real question is whether there is such a clear conflict that the grantor could not reasonably have intended both provisions to stand as written. See also Word v. Kuykendall, supra; Cravens v. White,
Certainly none of thе decisions cited for petitioners suggest a contrary conclusion. Koenigheim v. Miles,
As suggested in Hansen v. Bacher, supra, where both the grant and the reservation are general, or both are specific, a true repugnance is far more probable than where the grant is general and the reservation specific. In the two former situations, the intent of the grantor may well be, as a practical matter, a hopeless enquiry. In the latter, there is ordinarily a common sense inference that the grant is meant to be qualified by *63 the specific reservation, and accordingly to that extent both should be allowed to stand. See also Word v. Kuykendall, supra, 14 Tex. Jur., supra. In the present case the specific character of the reservation relative to the grant is evident from the limited physical area affected, the exact description thereof, its location at the very edge of the lot, the limited number of rights reserved and no doubt also the fact that such rights were consistent with a substantial usage of the same area by the grantee.
2
We consider equally unfounded the contention of an easement in gross or — what in result here would be the same thing —thе inadequacy of the reservation for lack of words such as “reserve” of “and her heirs.” In Stuart v. Larrabee, supra, A reserved in her deed to B a right of way for C and D “as owners of” certain tracts adjoining the land conveyed. In holding the easement to be appurtenant to the mentioned tracts, the court considered “not only the terms of the grant itself, but the nature of the right and the surrounding circumstances.”
A much closer question is that of respondents’ implied easement on lot 1 for accommodation of part of the wash shed. As stated, Mrs. Stapp in 1938, while owning lots 1 and 3, conveyed lot 1 to her daughter, Isabelle Anderson, from whom the title (to the southerly half) duly passed to petitioners, Mitchell and Powers after sundry mesne conveyances. (An earlier claim of respondents Castellaw that a deed out of Mrs. Anderson expressly provided for the easement has been abandoned). The conveyance to Mrs. Anderson was an unrestricted general warranty deed, reciting a consideration of $10 cash “and the further consideration of love and affection.” It contained nothing whatever to suggest a reservation. At the time of this conveyance the wash shed extended onto lot 1 just as it does today, having been built thus “in the early thirties” by Malcolm Smith, who was then operating the filling station on lot 3 as before mentioned. The wash shed is evidently a substantial structure with concrete flooring and has been at all times, no doubt, plainly visible, though there does not appear otherwise to have been anything on the ground to indicate its encroachment onto lot 1. Mrs. Stapp evidently knew about the erection of the shed, but there is nothing to indicate that, when she conveyed to Mrs. Anderson, either of them realized that the encroachment existed. The width and length of lot 1 (stated in the deed) are respectively about twenty times and four times the corresponding dimensions of the encroachment. The existence of the latter would in no way be suggested by the deed, without a physical application of the description to the ground. Despite its small extent, the encroachment undoubtedly served a purpose quite useful to the enjoyment of the filling station lot. But whether it was at all necessary to such enjoyment in the sense that the station could not have been properly conducted without it or that a readjustment of the shed so as to eliminate the encroachment would have been impracticable for any reason, is not touched on in the evidence.
3 It is universally recognized that where the owner of- a single area of land conveys away part of it, the circumstances attending the conveyance may themselves, without aid of language in the deed, and indeed somеtimes in spite of such language, cause an easement to arise as between the two parcels thus created —not only in favor of the parcel granted (“implied grant”) but also in favor of the one remaining in the ownership of the
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grantor (“implied reservation”). The basis of the doctrine is that the law reads into the instrument that which the circumstances show both grantor and grantee must have intended, had they given the obvious facts of the transaction proper consideration. And in the case of an implied reservation it is not necessarily a bar to its creation that the grantor’s deed, into which the law reads it, actually warrants the servient tract thereby conveyed to be free of incumbrance. Restatement, Property, §§ 474-6; 28 C.J.S., Easements, §§ 30,34; 17 Am. Jur., Easements, §§ 32,45; Othen v. Rosier,
4 On the other hand, even in the case of an implied grant, courts do not lightly hold the grantor to convey more than stated in his deed; and he being less favored in law than his grantee, the weight of authority seems still more reluctant to imply a reservation in his favor at the expense of his grantee. Restatement, supra, § 476, comments c and g; 28 C.J.S., supra, § 34; 17 Am. Jur., supra, § 45; Othen v. Rosier, State v. Black Bros., Sellers v. Texas Central Ry. Co., and other decisions, supra. Thus although various tyрes of factual consideration may operate in a particular case to defeat the implication of intent to reserve the easement, (e.g. the nonapparent character of the flood usage considered in Sellers v. Texas Central Ry. Co., supra) and while decisions of the different states, are not uniform on the point, we ourselves have stated in broad terms as reсently as Othen v. Rosier, supra, (
5 The question of strict necessity vel non is one of mixed law and fact and accordingly one for the fact finder in the ordinary *67 cаse. In the instant case, as before stated, we find no evidence in the record on which an implied or express finding of such necessity might rest. For aught that appears, the wash shed could be easily altered so as to rest entirely on lot 3 and be there used without grave difficulty in the other operations of the station. The burden of proof was on the respondent, Castellaw, who asserts the implied easement. Baines v. Parker, supra. Since respondents failed to discharge that burden, the judgments of both courts below must be reversed on this phase of the case. Ordinarily we would also render judgment thereon for the petitioners. However, the case seems not to have been tried with the issue of strict necessity in mind. Upon another trial it seems probable that evidence on that question would be forthcoming. We believe that justice would be better served by not rendering judgment for the petitioners at this time.
6 Since this issue as to the wash shed is severable from that regarding the driveway, we may properly affirm the judgments of both courts as to the latter, while reversing the judgments and remanding the cause for a new trial as to the former.
It. is so ordered. The costs in this court are taxed equally to both parties. Costs in the Court of Civil Appeals are taxed against the petitioners, Mitchell and Powers.
Opinion delivered January 30, 1952.
Rehearing overruled March 5, 1952.