Morgan et al. v. Mason. 158), upon the authority of a great number of English and American cases, lays down the general rule thus: "The maxim of the law is, that whoever grants a thing is supposed also tacitly to grant that without which the grant would be of no effect; and accordingly, whenever anything is granted, all the means to attain it, and all the fruits and effects of it, are granted also, and will pass inclusive, together with the thing, by the grant of the thing itself, without the words cum pertinentiis, or with appurtenances,' or any like words." The following cases will illustrate the application of this rule under a variety of circumstances. It is true that in some of them stress is laid upon the fact that the term appurtenances was found in the deed, but it will be seen that the weight of authority fully sustains Mr. Angell in saying that that, or any similar word, is not necessary. The direct question as to the necessity of any such provision was made in Kent v. Waite, 10 Pick. 141. The court say: "It is admitted that the plaintiff has a valid title to the wood-lot, but it is denied that he has any title to the right of way, because in some of his title-deeds there is no express grant of the right of way, nor of the appurtenances of the *wood-lot. But this omis- [411 sion is not material; for the principle seems to be well settled, that a right of way or other easement appurtenant to land, will pass by a grant of the land, without any mention being made of the easement or the appurtenances. This principle is laid down by Lord Coke, and is supported by a strong current of authorities. There is a dictum to the contrary in the case of Higgins v. Grant, Cro. Eliz. 18, but it is wholly unsupported." Justice Story, in the case of the United States v. Appleton, 3 Sumn. 502, is equally explicit upon this point. Referring to the case of Staples v. Hayden, 6 Mod. I., he says: "It is observable, that in this case reliance is placed on the language of the grant, with all the ways,' etc. But this is wholly unnecessary, for whatever are properly incidents and appurtenances of the grant will pass without the word' appurtenances,' by mere operation of law. So it is laid down by Lord Coke in Co. Lit. 307. The same doctrine is affirmed by Lord Chief Baron Comyn (Dig., Grant, E. 11), and it has been fully supported by the Supreme Court of Massachusetts in a very recent case." The Supreme Court of Pennsylvania have, in effect, adopted the same rule. Morgan et al. v. Mason. In Swartz v. Swartz, 4 Barr, 359, Gibson, C. J., says: “Though the rule admits of exceptions, it is generally true that land can not be appurtenant to land; but that a license or privilege may, was ruled in Pickering v. Staples, 5 Serg. & R. 107, in which a water-right was allowed to pass without the word 'privileges,' as appurtenant to a saw-mill. The privileges in this case as well as in that was enjoyed in connection with the land which was the subject of the conveyance-it would have been useless separated from it and it is not to be doubted that it passed by the word ' appurtenances."" By the very recent case of Hinckliff v. Earl of Kinmoul, 5 Bing. (N. C.) 1, it appears to be the settled modern doctrine in England. The question there was whether a right of way claimed to be incident to an estate, could be maintained under a lease that did 412] not contain the word "appurtenances." *Tindal, C. J., says: "We are of opinion that upon the facts found in this special verdict, such a right did pass as a necessary incident to the subject matter actually demised, although not specially named in the lease." I think these cases conclusively settle that incidents and appurtenances to property will pass upon its alienation without being named. What can be regarded as such, and when they arise, is also made very clearly to appear by the adjudged cases. In the case of Hazard v. Robinson, 3 Mason, 279, Justice Story lays down the following general rule: "Whatever is actually enjoyed with the thing granted, as a beneficial privilege at the time of the grant, passes as parcel of it; but not otherwise." The same learned judge considered the subject very fully in the case of the United States v. Appleton, before cited. The question in that case arose upon the claim of the defendant to the use of a door and piazza as a passage to the street, the same being enjoyed at the time he purchased the property. The following extracts from the opinion will show the view of the law taken by the judge, and the ground upon which his decision was based: "The general rule of law is, that when a house or store is conveyed by the owner thereof, everything belonging to, and in use for, the house or store, as an incident or appurtenance, passes by the grant. It is implied from the nature of the grant, unless it contains some restrictions, that the grantee shall possess the house in the manner, and with the same beneficial Morgan et al. v. Mason. rights as were then in use and belonged to it. Thus, if a man sells a mill, which, at the time has a particular stream of water flowing to it, the right to the water passes as an appurtenance, although the grantor was, at the time of the grant, the owner of all the stream above and below the mill. The law gives a reasonable intendment in all such cases to the grant; and passes with the property all those easements and privileges which at the time belong to it, and are in use as the appurtenances. In truth, every grant of a thing *naturally and necessarily im- [413 parts a grant of it as it actually exists, unless the contrary is provided for." In the case of New Ipswich Factory v. Batchelder, 3 N. H. 190, it was held that where a grantor deeded a piece of land by metes and bounds with a mill upon it, and at the time there was a raceway running beyond the bounds of the lands granted, into other land of the grantor, to carry the water off which was necessary to the convenient use of the mill, that the right to have the water flow off uninterruptedly through the whole extent of the raceway, passed as appurtenant to the mill. The court remark that, "It is well known that in the conveyance of real estate some things have always been held to pass as incidents to other things," and that "a raceway may be as necessary an appurtenance to a mill, to conduct the water from it, as a canal to conduct to it the water necessary to work it. In many cases a severance of the appurtenance from the thing to which it is appurtenant would render both useless." In Kilgour v. Ashcom, 5 Har. & Johns. 82, it was held that when K. died intestate, seized of a tract of land on which there was a grist mill, then in operation, on a division of the land, under the act to direct descents among his heirs, the mill was on the part allotted to his son John, the dam of which covered a portion of the part allotted to his daughter Mary, John had a right to use the mill and dam in the same way, and to the same extent, as they had been used by K. in his lifetime. In Blake v. Clark, 6 Greenl. 436, it was held that, "by the conveyance of a mill eo nomine, no other land passes in fee, except the land under the mill and its overhanging projections. But the term 'mill' may include the free use of the head of water existing at the time of its conveyance, or any other easement which has been made with it, and which is necessary to its enjoyment." Morgan et al. v. Mason. The right to overflow other lands of the grantor, outside of the 414] boundaries of the grant, involving the same general *principle, was most positively affirmed by the Supreme Court of New York, in Oakley v. Stanley, 5 Wend. 525. Sutherland, J., says: "Caldwell intended to sell and Hatch intended to buy a valuable water-privilege, for which a large consideration was paid. The right to overflow the adjoining premises of the grantor to the extent necessary to the profitable enjoyment of the privilege purchased, and in the manner in which it existed and had been used previous to the grant, passed to the grantee as necessarily appurtenant to the premises conveyed." In the light of these authorities, as well as many more that might be referred to, we are very clear in the opinion that this easement created in the estate of May, by his deed to McLaughlin, was by the owner attached as an incident to, and became a part of the fifteen 10-100 acre tract upon which the mill was situate, and that it passed by a conveyance of that tract, just as necessarily and inevitably, as the buildings and fences upon it; and that to effect such transfer, there was no more need of expressly naming the one than the other. The lien of the judgment covered the land with all its incidents and appurtenances as then used and enjoyed, and the sale of the land carried them all to the plaintiffs in error. The judgment debtor, after the lien of the judgment attached, could not have separated the incident from its principal; nor could the sheriff work such separation in his sale. They together constituted one indivisible whole, the whole of which the lien covered, and the sale transferred. A different doctrine might be ruinous to either debtor or creditor. If the debtor could separate the appurtenance, he might destroy the principal part of the security of the creditor, and if the creditor, through the sheriff, could do it, he might sacrifice the property of the debtor; since in either case, valuable mill property would be comparatively valueless without the appurtenance thus attached. The plaintiffs in this case did not expect to buy a mill without water-power to drive it, and we hold they did not. 415] *It follows, from these views, that the court of common pleas erred in instructing the jury, that the benefit of this appurtenance Little Miami Railroad Co. v. Stevens. would not pass to the purchaser, unless expressly named in the levy, and for this error the judgment is reversed, and the cause remanded for further proceedings. HITCHCOCK, C. J., was absent. 200 415 THE LITTLE MIAMI RAILROAD COMPANY v. JOHN STEVENS. (1) Where an employer placed one person in his employ under the direction of another, also in his employ, such employer is liable for injury to the person of him placed in the subordinate situation, by the negligence of his superior. When a railroad company places the engineer under their employ under the control of the conductor, who directs when the cars are to start, stop, etc., the company are liable to the engineer for an injury received, occasioned by the negligence of the conductor, whilst they are both engaged in their respective employments. ERROR to the common pleas of Hamilton county. In the common pleas, Stevens sued the Little Miami Railroad Company, in an action on the case, to recover damages for injury to his person, occasioned by a collision between two trains of railroad cars belonging to said company. One of the counts in the declaration is as follows: "And also, for that whereas, before the time of the committing of the grievances hereinafter next mentioned, the defendant was possessed of a certain other railway running from Cincinnati, in the county aforesaid, to Springfield, to wit, also in the county aforesaid, and of two certain other locomotives with other [416 trains of railway cars attached to each, the one thereof running from Cincinnati aforesaid to Springfield aforesaid and back again the ensuing day, and the other thereof also running from Springfield aforesaid to Cincinnati aforesaid and back again the ensuing day, which said two last-mentioned locomotives, with their respective trains, were used and accustomed to meet and safely pass each other at Plainville, in the county aforesaid, by the express direction and arrangement of the defendant, to wit, at the county (1) See this case reported in 7 West. Law Journal, 1849, 1850, p. 369. VOL. XX-23 353 70 170 |