[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 528 The effect and extent of the grant from Rufus Jennings to the school district was, by the charge of the judge at the Circuit, made to depend upon the solution of the question of fact, whether the use of the locus in quo was necessary to the district in order to a reasonable enjoyment of the granted premises for school purposes, rather than the terms of the grant and the description therein of the lands granted. The defendants prevailed at the Circuit and had judgment, from which the present appeal is brought, upon the finding of the jury that the disputed parcel of land was a necessary adjunct of the school-house as a play-ground for the *Page 530 children attending the school and essential to a reasonable enjoyment of the property conveyed. If this play-ground was not included within the description of the premises granted, the grant could not be enlarged by the necessities, actual or supposed, of the grantee. It is urged that if the reasonable necessity of these grounds was established, the case would be within the familiar rule, that by the grant or demise of a house or messuage, without further description, the curtilage and garden belonging to it passes with it as part and parcel of it, and as embraced within the more worthy name of the principal thing granted or demised. But only the garden, curtilage and close, adjoining to the house and on which the house is built, passes under the general description. Other lands, although occupied with the house, will not pass except particularly described. (Smith v. Martin, 2 Saund., 400, and n. 2.) A devise of a house, with its appurtenances or lands appertaining thereto, may have a more extensive effect and carry other land, depending upon the intent of the testator as manifested by the entire will. (Blackburn v. Edgley, 1 P. Wm. 600; Doe v.Collins, 2 T.R., 498; Buck v. Newton, 1 B. P., 53;Bodenham v. Pritchard, 1 B. C., 350.)
In a grant or demise, the addition of the word "appurtenances" will not vary the effect of the grant or extend it so as to include other lands not parcel of the house and close mentioned. (Bettisworth's Case, 2 Coke, 516.) The rule stated does not result from the necessity of a garden or curtilage to the reasonable occupation and enjoyment of the house, but from the fact that they are regarded as in fact and in law parcel of it, and as technically within the grant and the description of the thing granted. If a grant is made of a house, and there is no garden, curtilage or close annexed to and a part of it, the grantee cannot claim, as incident to the grant, a garden and curtilage such as twelve men may say is reasonably necessary to the proper occupation and enjoyment of the house as a dwelling. Whether a garden is or is not necessary to a dwelling is wholly immaterial in interpreting *Page 531 and giving effect to a grant of the messuage and determining what lands pass by the conveyance. So here, whether any or what extent of play-ground was convenient or necessary in connection with a school-house, was entirely immaterial in construing and determining the boundaries of the grant.
It is also urged that, by reason of the reasonable necessity for these lands as a play-ground for the pupils, the title passed as "appurtenant," and under the clause "cum pertinantes" in the deed; and the cases in which easements "of necessity" have been sustained, are referred to by the court below, and the learned counsel for the respondents.
The principle was carried in this case beyond the creation of a mere easement, and was made to effect a change of title to lands other than those included within the grant. It is well settled that, in a deed, the word appurtenances will not pass any corporeal real property, title to lands, but merely incorporeal easements or rights and privileges. It cannot include a strip of land adjacent to that granted. A title to land will not pass by implication. (Jackson v. Striker, 1 J. Ch., 284; Jackson v.Hathaway, 15 J.R., 447; Buszard v. Capel, 8 B. C., 141; S.C., in Ex. Ch., 6 Bing., 150.)
Easements exist as appurtenant to a grant of lands, and as arising by implication, only by reason of a necessity to the full enjoyment of the property granted. Nothing passes by implication, or as incident or appurtenant to the lands granted, except such rights, privileges and easements as are directly necessary to the proper enjoyment of the granted estate. Upon the grant of a mill, every right necessary to the full and free enjoyment of the mill passes as incident to the grant; and the necessity measures the extent and duration of the right. When the necessity ceases, the rights resulting from it cease. It must be an actual and a direct necessity. A mere convenience is not sufficient to create or convey a right or easement, or impose burthens on lands other than those granted, as incident to the grant. In all cases the question of necessity controls. (Holmes v. Seely, 19 Wend., 507; Nicholas v. Chamberlain, Cro. Jac., 121; *Page 532 Oakley v. Stanley, 5 Wend., 523; Tabor v. Bradley,18 N Y, 109; Le Roy v. Platt, 4 Paige, 77; French v.Carhart, 1 Comst., 96; Voorhees v. Burchard, 55 N.Y., 98;N.Y.L. Ins. and T. Co. v. Milnor, 1 Barb. Ch., 353; Warren v. Blake, 54 Maine, 276; Pierce v. Sellick, 18 Com. 321.) The necessity of a proper head of water for the profitable operation of a mill, a mill-yard to a saw-mill, of a way of access in order to the occupation of any granted premises, is palpable, but the necessity of a play-ground or an open court, except for light and air, about a school-house is not apparent. There was no evidence that appurtenances of that character were either usual or necessary for any purpose connected with the proper conduct of the school, or to the health or welfare of the children. That such appendages are not a universal necessity is very evident. Indeed, there was no evidence that a space for a play-ground was even a convenience for any proper school purpose. It, doubtless, may be a source of pleasure to the children, but that will not suffice to create an easement by implication, or as appurtenant to the granted lands. The law will not imply that a space of ground set apart for the exercise and diversion of the children, is a necessity for a country school-house, or that for all recognized school purposes the district may not have and enjoy the school-house and premises fully without such an adjunct, and it would require very cogent evidence to establish a right to such grounds as passing by implication and as an incident to a conveyance of a school-house. Here there was no evidence to warrant the submission of the necessity of such an incident to the jury.
It was error for the judge to submit it as the pivotal question of fact in the action, for two reasons: 1st. It was, under the circumstances, an immaterial question, and neither the cause of action nor defence properly depended upon its determination. And 2d. There was no evidence that any necessity existed for the possession by the district of this or any other parcel of ground as a play-ground. This would lead to a reversal of the judgment unless on examination of the grant, *Page 533 in connection with the evidence and the plaintiff's title, it is evident that the action cannot be maintained.*
* * * * * * * * * * * The judgment must be affirmed.
All concur.
Judgment affirmed.
* The judge then proceeded in the examination of the title from the common source of title of the respective claimants, and upon an interpretation of the various deeds, came to the conclusion that the plaintiff had no title to the locus in quo, and thereupon determined that the judgment should be affirmed.