116 Ga. 376 | Ga. | 1902
On April 27, 1894, Swift & Etheridge, a partnership, purchased from Almand “ all the rock on ” a certain tract
The right of way granted by the plaintiff was to Swift & Etheridge, and the conveyance is by both sides treated as a conveyance to a partnership. This firm was subsequently dissolved, and the new firm, which is one of the defendants, is a distinct entity although it includes among its members Etheridge and the assignee of Swift’s interest in the quarry. If the instrument executed by Stovall created but a right of way in gross, such right could be exercised only by the old firm, as such, operating and working the quarry, and determined when the partnership was dissolved. If, on the other hand, the right was an easement appurtenant to the quarry, it ran with the quarry and may be exercised by the grantees’ successors in title so long as they are operating and working the quarry. If the easement was appurtenant, it passed with the dominant estate, although the conveyance thereof may not have expressly mentioned the easement or contained a general conveyance of the appurtenances of the estate. United States v. Appleton, 1 Sumn. 492; Taylor v. Dyches, 69 Ga. 455; Lide v. Hadley, 36 Ala. 627; Barnes v. Lloyd, 112 Mass. 224; Hollenbeck v. McDonald, Ibid. 247; Washb. Eas. (4th ed.) *26; 10 Am. & Eng. Enc. Law (2d ed.), 418. The decision of this case must, therefore, depend upon the question whether the right granted by Stovall was a right of way in gross or an easement appurtenant. An easement has been defined to be “a privilege wdthout profit which the owner of one neighboring tenement has of another, existing in respect of their several tenements, by which the servient owner is obliged to suffer or not to do something on his own land for the advantage of the dominant owner.” 10 Am. & Eng. Enc. Law (2d ed.), 398. An easement in gross, as the term is now commonly used, is a mere personal right in the land of another, while an easement appurtenant is an incorporeal right which is attached to and belongs to some greater or superior right. Ibid. 403. In determining whether a right granted is appurtenant or in gross, courts must consider the terms of the grant, the nature
In Lide v. Hadley, 36 Ala. 627, 76 Am. Dec. 338, certain land was devised to a daughter of the testator, and the will contained a provision that the devisee (naming her) should have a wagon-road to this land,allotted toherfree of charge, over other lands lying between it and the public road and devised to other children. The court held that this right of way was an easement appurtenant to the land devised to the daughter, and not a right in gross, and passed by a conveyance of the land to the alienee without express mention of the appurtenances. In Karmuller v. Krotz, 18 Ia. 352, two ten
In the light of these authorities, we think the right of way granted by Stovall was not personal but was appurtenant to the quarry. A right of way in gross is personal to the grantee, and is not appurtenant to any other premisés; while in the case of an easement appurtenant there is always a dominant tenement. It was argued here that the estate of Swift & Etheridge in the quarry was itself an incorporeal right, and that an easement can not be appurtenant to incorporeal property. Even conceding that an easement appurtenant must be imposed for the benefit of corporeal property, the doctrine can have no application in the present case; for Swift & Etheridge had, &ot merely a mining or quarry right in
Judgment affirmed.