delivered the opinion of the court.
On the 1st day of April 1851, and many years prior thereto, John Southgate, Tazewell Taylor and others,
In this state of facts, on the 1st day of April 1851, John Southgate, Tazewell Taylor and wife and the other owners of the property aforesaid,' by deed of that date, conveyed to Josiah Wills a portion of said wharf property particularly discribed in the deed. The Eastern
But immediately following the «grant and warranty is a special covenant in the following words: “ And the said parties of the first part hereby convenant to allow the said Josiah Wills to have the common use with themselves or their tenants of the dock herein first mentioned, for the purpose of landing goods on his wharf' from vessels or boats which may enter therein, as long as the said dock and adjoining premises are owned by said parties of the first part, or until they may choose to fill up the said dock. The said Wills, in consideration thereof, hereby undertaking to clean out, from time to time, the said dock at his own expense. ”
On the 23 day of March 1854, Southgate, Taylor and others, grantors in the deed to Wills, ceased to own the residue of the property, first mentioned, including said dock, having on that- day sold and conveyed the same
The appellant claims under the deed to Wills, the appellees under the deed to Ball, Santos and Mellen.
The appellant and those under whom he claims, seem to have enjoyed from the date of the deed to Wills, down to the date of the proceeding sought to be enjoined, the common use of the dock for the purpose of landing goods on their wharf, but not to charge dock-age. The appellees had the same use of the dock, but also when they thought proper to charge it, received dockage from all vessels entering the dock.
In February 1869 the appellee, McCullough, representing in his own right and as tenant the entire interest conveyed to Ball, Santos and Mellen, by the deed of the 23d of March 1854, commenced driving piles in said dock on the Western side thereof near the appellant’s wharf, with the purpose of erecting thereon a fence so as to exclude the appellant from the further use of the dock. The suit below was instituted to enjoin this pi'oceeding of McCullough, the plaintiff claiming in his original bill under the deed of April 1, 1851, to Josiah Wills alone. The injunction was awarded. In the course of the proceeding amended bills were filed, in one of which the title of the original grantors, South-gate, Taylor and others, to the dock, was denied, and the right of the State thereto was asserted as part of Elizabeth river below low water mark, and therefore a public highway open to all citizens of the State. On final hearing the injunction was dissolved and the bill dismissed with costs; and from that decree an appeal was taken by Hardy to this court.
1. Because, “ if the dock was the property of the grantors in the deed to Josiah Wills, then that deed passed to Wills the right to use it i¿ connection with his wharf, by way of easement as parcel of the subject especially granted.”
2. Because, “The right to use the dock passed to Wills, also, upon the principle that where the owner of a heritage consisting of two parts, grants one of them, the grant will by implication pass all those continuous and apparent easements which have in fact been used by the owner during the unity of ownership and possession, though they have no legal existence as proper technical easements.”
In considering these propositions and their application to the case at bar, the general subject of easements and servitudes has been ably and elaborately discussed by the counsel on both sides, and the authorities on the questions carefuly collected and examined; but as the same subject has been veryrecently investigated, (for the first time I believe,) by this court, in the case of Scott v. Beutel, reported supra 1, where the same authorities were reviewed, we will content ourselves by a reference to the law in such cases as there laid down by the court. It was a case coming within the class referred to in the second proposition of the appellant aboved stated; and Judge Christian delivering the unanimous opinion of court, said:
“The owner of two tenements who sells one and retains the other, may undoubtedly grant the right of drain or not to pass with the estate conveyed, or may reserve such right over the estate conveyed for the bene
“ In certain cases, by implication of law, where the owner of two tenements has so arranged them that one derives a benefit from the other, and sells one of them, the purchaser of the tenement takes it with all the beu e-fits and burdens lohich appear at the time of sale to belong to it, as between it and the property which the vendor retains. The parties are presumed to contract in reference to the condition of the property at the time of sale. Washburne on Easements, 2d ed. p. 76, (Marg. 49.) But whether the estate sold be the dominant or servient estate, it is well settled (by numerous-cases in England and in the States of the Union) that the easement or other incident of property in order to pass by implication must be open, visible, apparent and continuous; and it seems to be equally well settled that where the servient estate is granted and the dominant reserved, the easement reserved by implication must be, not only one that is apparent and continuous and such as is indicated by the condition of the premises at the time of the sale, but the easement claimed must be one strictly of necessity, so that another cannot be substituted at a reasonable expense.” Washburne on Easements, 2d Ed. 71-8, and cases there cited; 10 Allen 11. 366; 7 Allen R. 369; 2 Metc. R. 234; 2 Cush. R. 327; 31 Law J. ch. 610; 2 Eq. Cases 508; 33 L. J. ch. 249; and Russell v. Harford, L. R. 2 Eq. 507; Scott v. Beutel, supra 1.
We have thus stated the conclusions of this court, in the case of Scott v. Beutel, at greater length, perhaps, than is necessary in the present case. We understand
To apply this law to'the case before us, had the deed to Mills, under which the appellant claims, conveyed the wharf properly, with its appurtenances, to Wills, with general warranty, with no reference to the terms and conditions on which he was to use the dock, we are of opinion on the facts proved in the cause, that the right to use the dock in connection with and for the benefit of the wharf, as it had been openly used by the grantors, would have passed to the grantee by implication of law as an easement, or as part of the property granted.
But, such is not the case. There is no absence here of an express contract • between the parties on the very question; and there is, therefore, no room for implica-, tion or presumption. The case stands “upon the ground of convention between- those who have a disposing power.” And about the terms and effect of that “ convention” there is, we think, no room for discussion. After making the western side of the dock the eastern boundary of the property conveyed, which included no part-of the dock, the parties, to preclude, apparently, the
We are of opinion, therefore, that by the grant to Wills, in this case, no general right to the use of the dock, as the grantors had used it, passed to him; that the extent of his right under the grant was limited and defined by the express terms of special covenant,, and that the right to use it at all, would wholly cease whenever his grantors should cease to own the dock,and other property of which it was claimed to be part, or when they should think proper to fill it up.
But it is further contended, that the dock is not private property at all, but that it is a part of Elizabeth river, below low water mark; and is, therefore, the property of the State and a public highway. It will be observed that this claim is not preferred by the State herself, or by any one claiming under her by grant or otherwise. Neither the State, nor the city of Norfolk, nor the citizens of either, save the appellant alone, seem to have ever at any time set up such a pretension. On the contrary, the State, the city of Norfolk, and the citizens of each, have uniformly treated them as private property, from a time whereof the memory of men now living runneth not to the contrary. As far back as October 1705, in the 4th year of Queen Anne, it was enacted that “ if any person having a lott in town, upon the water side, will build out into the water before his own lott,
The 3d section recites that “owners of lots on the rivers and creeks are constantly extending their wharves and breastworks beyond each other, whereby navigation is greatly obstructed,” and requires the portwardens to run a line in the water from the east to the west end of said borough, and also on each side of the creeks, so as to leave a pass-way of 40 feet at least beyond .which no wharf should be extended, under a penalty of $10,000. 2 Hen. Stat. at Lar., New Series, ch. 48, p. 282-3. And the 2d section of the act of February 4th, 1818, entitled “an act to extend the jurisdiction and enlarge the powers of the corporation of the borough of Horfolk,” authorizes the corporation, among other things, to provide for the “ opening, filling and cleaning docks.”
Under and by virtue of these laws the vendors of Southgate, Taylor and others, were as owners of the dock in question, actually ordered by the proper authorities of the corporation, soon after their purchase of the dock, to fill up a portion thereof; and under that order they filled up about fifty feet of it.
. It will be remembered, also, that the portwarden’s line does not run into this creek at all, as it is required to be run into creeks, but runs along the main channel of Elizabeth river directly across the mouth of the dock, so as to leave the entire dock within the line.
In addition to all this, Wills and those claiming under him, have in the most solemn form, in the deed under which they claim the wharf property,-acknowledged the dock to be private property, and to be owned by their ■grantors. This acknowledgment occurs both in the granting part of the deed and in the special covenant.
But, however that might be, were the commonwealth a party claiming the dock, we are clearly of opinion, in the absence of such claim, and in the face of the apparent waiver and abandonment aforesaid, that the appellant cannot rely upon that supposed title in derogation of the solemn acknowledgment and express contract of his grantor to. the contrary.
The decree must be affirmed.
Decree arrirmed.