With regard to the first proposition, that is recognized as law in the opinion already delivered. The difficulty in the plaintiff's case lies in the nature of the acts, which he contends create a right of common. The second proposition states what these acts are. Now, there are two modes of creating an easement — one is by express grant, and the other by implication.
A grant may be implied in two ways. First, upon the severance of an heritage into two or more parts, and, secondly, by prescription. Upon the severance of an heritage, a grant will be implied of all those continuous and apparent easements which have in fact been used by the owner during the unity, though they have had no legal existence as easements. The implication here proceeds upon the presumed intent of both parties to the deed, that the grantee should have the same easements for the portion of the heritage conveyed as have been used by the grantor before the severance. Gale Whateley, Law of Easements, p. 18.
Now the representations of the committee, plat and sale under these, are, if anything, matters of express grant. Supposing, for the sake of the argument, that they mean what the plaintiff's counsel say they mean, to wit, that the State intended to sell and did sell this right of common *Page 418 with the land; they do not amount to an express grant, which must be under hand and seal, and they certainly furnish no ground on which to imply one.
In the case cited by the plaintiff's counsel from 1 Hill R. p. 189, the facts were these: D. owned four adjoining lots in the city of New York and the land in front of them, the latter being designated in the commissioner's map as part of the site of a street; and before the street was opened, he sold three of the lots, bounding the purchasers respectively by the street, conveying to them all his interest in the land within the street adjoining their several lots, subject to the use of the owners of the lots as a public street. It was held that his acts amounted to a dedication of the lands in the site of the street to the public use, and therefore upon the opening of the street he was entitled to no more than nominal damages for the land taken therefor in front of the fourth lot. The deed bounding the three lots on the street was held to be a grant of right of way to the grantee of these lots over the street in front of the fourth lot, and a dedication of the street to public use.
The deed of the General Treasurer to Nathan Kenyon contains no reference to the common lots.
In the case cited from the 1 Hill R. p. 19, it was held that one who conveys lands in the city of New York, bounding the purchase by a street, designated on the commissioner's map, thereby dedicates his adjoining land in the site of the street to the public use, so that on the opening of the street he will be entitled only to nominal damages therefor.
To the same effect is the case cited from 19 Wendall, p. 128. *Page 419
We are not able to perceive that these cases have any application to the case at bar.
The third ground taken is an estoppel in pais.
A right of common can no more pass by an estoppel in pais, than land. An incorporeal right lies in grant, and can only be conveyed by grant express or implied, and the difference between lands and incorporeal rights at common law is, that the former may pass by delivery, by deed or without deed, but easements only by grant. Coke Litt. 9 and 42; Gale Whateley, Law of Easements, p. 19.
In Hewlins v. Shippam, 5 Barn. Cres. 221, it was decided that a right to the drain running through the adjoining land can only be created by deed.
In Fentiman v. Snith, 4 East, p. 107, the facts were, the defendant gave the plaintiff leave by parol to put a tunnel in his, the defendant's land, to carry water to his, the plaintiff's, mill; and the defendant agreed to pay the plaintiff a guinea therefor. The plaintiff built the tunnel, the defendant assisting. The defendant obstructed the tunnel. Held, that the right could not pass by parole, and if the plaintiff held by license, it was revocable at any time.
Now the case at bar presents no stronger ground for claiming the right under an estoppel in pais than the case cited.
Again, an estoppel binds only parties and privies. The defendant sets up no title under the State, or in any other way, — he puts the plaintiff to the proof of his title. That title is by way of estoppel against the State, and all claiming under the State, but cannot avail against the defendant who is a stranger to it. *Page 420
In the view we have taken of this case, we have taken it for granted, that the right claimed in the present case might pass by an implied grant, and that the word used in the deed, (appurtenances,) is sufficient to convey it by express grant.
It may well be doubted, whether the easement claimed be continuous and apparent so as to bring it within the rule of a grant by implication.
Motion denied.