Walker v. Clifford
128 Ala. 67
Ala.
1900
Check Treatment
HARALSON, J.

1. In the 10 Am. & Eng. Encyc. Law (2d ed.), 420, it is said, with the citation of many’ authorities to support the ¡text, that “According to the established English doctrine, which is supported by some of the later American authorities, if the owner of both the quasi dominant and quasi servient tene*74meats conveys ¡the f-ormer, reserving the latter, all snclx continuous and apparent quasi easements as are reasonably necessary to the enjoyment of the property granted, pass to the grantee, giving rise to easements by implied grant. If, on the other hand, the quasi servient tenement is granted, while the quasi dominant tenement is retained, no- easement is reserved by implication, unless it is strictly necessary to the enjoyment of the -property retained. These rules are founded on the principle that a grantor shall not derogate from his own grant.” “A dominant estate is the one enjoying the easement, and to which it is attached; the servient estate is the one upon which the easement is imposed.” — Tiedeman on Real Prop. § 497.

In Whiting v. Gaylord, 66 Conn. 337, it is said: “The American cases have with almost entire unanimity limited easements by'implied grants to such as were open, visible, — such as would be apparent to any ordinary observer, — continuous, and necessary to the enjoyment of the estate granted or retained. * * * These cases differ considerably as to the degree of necessity which must exist in order to raise tli-e implication that the easement or quasi easement passes; but they all concur in the rule just stated, that it must be one which is open, visible, and necessary.”

Mr. Tiedeman states the rule thus: “If the quasi servient estate has been conveyed, it is a question of some doubt whether there is reserved to the grantor by implication an easement to maintain the drain or other burden upon the granted estate. The authorities, English and American, 'are at variance on this question. In this country the better opinion is that the rule would be the same as in the case of the conveyance of the quasi dominant estate, especially if it was strictly necessary to the enjoyment of the dominant estate, and the existence of the easement is apparent or known to the grantee.” Tiedeman Real Prop. § 602.

The same author further observes (Section 609) : “When such a necessity exists as will create by implication a right of way, is a question of fact determined by ¡the circumstances of each particular case. • Mere *75inconvenience will not constitute sucli necessity. It must be 'strict necessity; but excessive expense in procuring another way avou-IcL make it a case of strict necessity.”

The complainant’s counsel say in their brief: “The dofetrine upon which complainant’s bill rests is that announced in Lampman v. Milks, 21 N. Y. 505. It is this [quoting from the decision] : ‘Where the owner of two tenements sells one of them, or the owner of an entire estate sells a portion, the purchaser takes (the tenement or portion sold, with all the benefits and burdens which appear, at the time of the sale, to belong to it, as between it 'and the property which the vendor retains.’ ” But this principle, as there, announced, was afterward' declared to be a dictum, was limited to the facts of that case, and repudiated as unsound, in Wells v. Garbutt, 132 N. Y. 435, where the court, citing a great array of authorities to sustain the proposition, announced that “where the owner of two parcels of land conveys one by an absolute and unqualified deed, Ave think that an easement will be implied in favor of the land retained by the grantor and against the land conveyed to his grantee, only in cases the burden is apparent, continuous and strictly necessary for the enjoyment of the former.” See also 6 Am. & Eng. Enc. Law, (1st ed.), 143, note 1, where the authorities are collated to sustain the foregoing principle. We apprehend that the doctrine laid down in the text books as above referred to, and in Wells v. Garbutt, supra, sustained as it seems to us on reason and authority, is the correct one in reference to easements by implication. — Ramsey v. McCormick, 4 Cal. 245; Oliver v. Dickinson, 100 Mass. 116.

2. The appeal in this case is from a decree dissolving the preliminary injunction, granted in favor of complainant. The defendants’ motion to dissolve was predicated on the grounds, that there was no equity in the bill, and on the denials contained in their sworn ansAver theretofore filed.

The right of complainant to maintain the bill rests solely on the ground of an implied easement or right of way over respondents’ premises, existing from con*76venience and necessity, which, respondents deny, setting out, as a part of their denial, the lease of complainant to them, and [the facts on which they base the denial, which are not questioned by complainant. The easement claimed is not reserved in the 'contract of lease to respondents, and necessarily arises, if at all, by implication. That part of the premises retained * by complainant, and not rented to defendants, and every part thereof, is easily accessible from the street, and the way claimed over the premises granted by him to defendants is, therefore, clearly not a way of necessity, but one merely of convenience to his other tenant, the Burnett Company. The way into the bar room is approached, as the hotel rotunda is, by a door, as stated, opening from the same street; and between this and the billiard room in ¡the rear, there are glass doors for entrance into the latter from the front room, so that customers of the Burnett Company may pass freely in and out of the bar room and billiard or pool room, without hindrance or inconvenience. On this denial, alone, the chancellor very correctly dissolved the injunction.

3. Furthermore, a lessee or termor in possession under a valid lease may, during the continuance-of his lease, maintain an action of ejectment or other proper action against his lessor, even, although he is the owner of the fee, less the term, as against any other person who takes possession of the property without his consent ; and this, upon the principle, that during the term of lease he is the owner of the property, unless his ownership has been forfeited under the terms of his lease. — Tennessee & C. R. R. Co. v. East Alabama Ry. Co., 75 Ala. 524; 1 Taylor Landl. & Ten., § 172. “An action for an obstruction or disturbance of the enjoyment of an easement may be maintained by any person in possession of the premises to which such easement is appurtenant.” — 7 Enc. Pl. & Prac. 256.

After entry of a tenant under lease he may bring actions for injuries to his possession, but “ the landlord’s rights, after the tenant’s entry, are confined to the protection of his reversionary interest merely, — that is, to the maintenance of actions for such injuries as *77would, in the ordinary course of things, continue to affect such interest after the determination of the lease; whether the injury he 'committed by a tenant, an under-tenant, or a stranger, and whether the term shall have, expired or not. * * * But the injury complained of must be of such character as permanently to affect the inheritance; and a mere disturbance, if not of a continuous nature, even though done in the assertion of a right, will not entitle the reversioner to an action.”—1 Taylor Landl. & Ten., § 173, and authorities there cited; Hastings v. Livermore, 7 Gray, 194; Tinsman v. Railroad Co., 25 N. J. Law, 255; Brown v. Brown, 30 N. Y. 519.

The tenant, Burnett & Company, and not the complainant, Avas the proper party to bring this suit. There is no pretense in the bill, that the obstruction of the alleged easement was of injury to complainant’s reversion.

The decree beloAv is affirmed.