The scope of the doctrine of implication of an easement over one portion of a gran tor's lands in favor of the other portion, ei ther granted or reserved upon the sale of ei ther portion, is said to be in much confu sion in the United States. The rule in Eng land, as quoted and adopted in perhaps the most cited of the earlier American cases, Lampman v. Milks, 21 N. Y. 505, is, in ef fect, that where the owner of two tenements sells one of them, the purchaser takes the portion sold, with all the benefits and bur dens which appear at the time of the sale to belong to it, as between it and the prop erty which the vendor retains. . . . The parties are presumed to contract in reference to the condition of the property at the time of the sale, and neither has a right, by alter ing arrangements then openly existing, to change materially the relative value of the respective parts. The rule has been applied in Dixon v. Schermeier, 110 Cal. 582, 42 Pac. 1091; Fremont, E. & M. V. R. Co. v. Gayton, 67 Neb. 263, 93 N. W. 163; Janes v. Jenkins, 34 Md. 1, 6 Am. Rep. 300; Cihak v. Klekr, 117 III. 643, 7 N. E. 111; Dunklee v. R. Co., 24 N. H. 489; Henry v. Koch, 80 Ky. 391, 44 Am. Rep. 484 ; Cannon v. Boyd, 73 Pa. 179; John Hancock Mut. Life Ins. Co. v. Patter son, 103 Ind. 582, 2 N. E. 188, 53 Am. Rep. 550; Lam mott v. Ewers, 106 Ind. 310, 6 N. E. 636, 55 Am. Rep. 746. In the states where the rule has been adopted in terms, its ap plication has been quite limited, and in some of them an early tendency to liberality has been followed by a later strictness of limi tation; Griffiths v. Morrison, 106 N. Y. 165, 12 N. E. 580; Whyte v. Builders' League of New York, Y. 429, 58 N. E. 517; Keats v. Hugo, 115 Mass. 204, 15 Am. Rep. 80.
It is said that this rule has its reason in intended permanence of real estate arrange ments supposed to be in the minds of gran tor and grantee. But, whatever may be true in older communities, it would be difficult to find justification for any such presump tion in a new and developing country, and especially in cities. There, instead of per manence, change is to be expected, and there can be but a slight reason to suppose that, upon a sale of that part of an entire tract on which stands a house, it is intended per manently to subject other parts of the tract to such obsolescent uses, although the own er of the whole had so devoted them; Miller v. Hoeschler, 126 Wis. 263, 105 N. W. 790, 8 L. R. A. (N. S.) 327, where it is said: "The English rule, above quoted, if applied to the full extent of its words, would be against pub lic policy." In Dillman v. Hoffman, 38 Wis. 359, doubt is suggested whether any enlarge ment of the doctrine of implied easements, be yond rights of way strictly necessary to the use of the dominant estate, is at all wise. Largely on the authority of that case, neces sary rights of way have been implied• in sev eral cases ; Jarstadt v. Smith, 51 Wis. 96, 8 N. W. 29; Galloway v. Bonesteel, 65 Wis. 79, 26 N. W. 262, 56 Am. Rep. 616; Johnson v. Bor son, 77 Wis. 593, 46 N. W. 815, 20 Am. St. Rep. 146 ; Benedict v. Barling, 79 Wis. 551, 48 N. W. 670; but no other easement than a right of way has been held Implied in that state; Miller v. Hoeschler, 126 Wis. 263, 105 N. W. 790, 8 L. R. A. (N. S.) 327, where the con clusion is reached that even if, in some ex treme cases, there must be any easement other than right of way implied from neces sity, that necessity must be so clear and ab solute that, without the easement, the gran tee cannot, in any reasonable sense, be said to have acquired that which is expressly granted.
In New York the rule of strict necessity is applied to reservations, but not to grants; Paine v. Chandler, 134 N. Y. 385, 32 N. E. 18, 19 L. R. A. 99. The reservation of an ease ment will not be implied except in cases where it was apparent, continuous, and strictly necessary ; Wells v. Garbutt, 132 N. Y. 430, 30 N. E. 978; Whyte v. Builders' League of New York, 164 N. Y. 429, 58 N. E. 517. The former case was approved and fol lowed in Walker v. Clifford, 128 Ala. 67, 29 South. 588, 86 Am. St. Rep. 74. In Stuyve sent v. Early, 58 App. Div. 242, 68 N. Y. Stipp. 752, a distinction between an implied grant and an implied reservation was recog nized. It was there held that a right to drain through the grantor's premises passed by implication, on the ground that the ease ment was visible and apparent. The court said that, if the owner had conveyed the servient tenement first, no easement would have been implied.
In New Jersey, there is no distinction be tween an implied grant and an implied res ervation; Greer v. Van Meter, 54 N. J. Eq. 270, 33 Atl. 794; so in Seibert v. Levan, 8 Pa. 383, 49 Am. Dec. 525, the distinction be tween an implied grant and an implied res ervation was denied, following the rule in Gale & Whately, Easem. 52: "It is true that, strictly speaking, a man cannot sub ject one part of his property to another by an easement, for no man can have an ease ment in his own property; but he obtains the same object by the exercise of another right, the general right of property; but he has, nevertheless, thereby altered the quali ty of the two parts of his heritage, and if, after the annexation of peculiar qualities, he alien one part of his heritage, it seems but reasonable, if the alterations thus made are palpable and manifest, that a purchaser should take the land, burdened or benefited, as the case may be, by the qualities which the previous owner had undoubtedly the right to attach to it." In Burns v. Gallagher, 62 Md. 464, the test was said to be that the doctrine of res ervation of an easement would be invoked when the necessity is so strict that It would be unreasonable to suppose the parties in tended the easement in question should not be used. Where the owner of a lot, bounded on one side by a highway and on the other by the ocean, sold that half of the estate which adjoined the highway, without ex pressly reserving a way across it from the highway to the part he retained, and no ac cess could be had to the unsold portion ex cept by the ocean or by crossing the land of other owners, it was held, following the English rule, that the ocean was a public highway, and, as all communication was not shown to be cut off, the grantor must in fu ture rely on such access as the sea afforded. Hildreth v. Googins, 91 Me. 227, 39 Atl. 550. Where it is not necessary, it requires de scriptive words of grant or reservation in the deed to create it ; Washb. Easem. 95; 36 Am. Rep. 415. The common-law rule re quiring the word "heirs" in the creation of an estate of inheritance by deed is inappli cable in creating a permanent easement; Chappell v. R. Co., 62 Conn. 195, 24 Atl. 997, 17 L. R. A. 420; Lathrop v. Elsner, 93 Mich. 599, 53 N. W. 791. See Claflin v. R. Co., 157 Mass. 489, 32 N. E. 659, 20 L. R. A. as. The use of the word appurfenances is not suffi dent to create an easement where none ex isted before; Bonelli v. Blakemore, .66 Miss. 136, 5 South. 228, 14 Am. St. Rep. 550.