dissenting:
This is an appeal by the defendants, Joseph S. Whitmore and Horace C. Littlejohn from a decree of the Circuit Court of Loudoun county perpetually enjoining and restraining them from using a certain driveway through the land of the plaintiff, Margaret Paxton Memorial for Convalescent Children, a corporation.
*1029The facts upon which this decree is based are practically uncontrovérted. For many years — indeed for fifty years or more — there had been maintained by Mrs. Rachel A. Paxton, deceased, and her husband, her predecessor in title, a roadway from her residence known as “Carlheim” to the Leesburg and Point of Rocks turnpike. This roadway, as shown by the plat filed with the record, extended from said turnpike, along the southern boundary line of the farm and the Babson tract, then turns slightly northeast through the farm by the mansion house, lawn and garden, to the barns and the farm or tenant house. There is a driveway from the mansion house, across its lawn, running into this roadway. There is also a roadway from the yard of the farm or tenant’s house, extending north to the United- States Government’s road to Ball’s Bluff where the latter joins the Leesburg State highway to Point of Rocks.
The annexed plat shows the location of the road in controversy extending A to B and thence to C, and the location of the buildings on the farm and their relation to the balance of the farm, and this roadway and the public highways.
Charles R. Paxton purchased this farm of more than 800 acres in 1869. He erected a very handsome and expensive residence thereon, with a lawn and garden bounded upon this roadway. He also erected barns, and a stone farm house in the rear of his residence and extended said roadway to these buildings. During his lifetime this roadway was used by himself and his tenants as the means of ingress and egress to and from the Leesburg highway; all the occupants of the farm traded and did business at Leesburg.
In 1889 Charles R. Paxton died, having made his last will and testament whereby he devised said farm to his
*1030
*1031wife, Rachel A. Paxton. Mrs. Paxton used and occupied this farm as her husband had done. She leased said farm to a tenant, except thirty acres thereof near her dwelling, by written lease for a year, but the tenants held over as tenants from year to year, for as much as ten years or more. The leases from Charles R. Paxton nor his wife, to each succeeding tenant, did not expressly grant an easement in this driveway as appurtenant to the respective leases. But each tenant during his occupancy freely used and enjoyed said driveway as a matter of right and no objection or condition was placed upon them in regard to it by their landlord.
Rachel A. Paxton died, testate, in the latter part of 1921. Her will, with codicil, was probated in Loudoun county circuit court on the 16th day of January, 1922. By the seventh clause thereof she gave and devised her “home at Leesburg, Loudoun county, Virginia, and known as ‘Carlheim’ with fifty acres of land surrounding it, so selected as to include the house and buildings and the driveway and hedge leading from ‘Carlheim’ to the turnpike road,” to her executors, in trust to be by them given and deeded to a proper corporation or society which might thereafter be organized for the purpose of supporting and maintaining a summer home for convalescent children to be known as “The Margaret Paxton Memorial for Convalescent Children.” The word “summer” was stricken from the will by the codicil.
By the sixteenth clause of her will, she nominated and appointed Charles Adsit, of Hornell, New York, and Dr. William Claytor Orr, of Leesburg, Virginia, her executors, and authorized, empowered and directed “them to sell all of my property, both real and personal, either at public or private sale, at such times and for *1032such prices and upon such terms as they may deem to be for the best interests of my estate, and to convey the same by deed or deeds to the purchaser or purchasers thereof.” The purpose of the above clause in her will, as shown by the codicil, was to pay certain legacies therein provided for, including $70,000.00 to the Memorial Corporation, and to pay over one-third of the residue to the Memorial Corporation and two-thirds to her nephew, Charles Adsit.
The Margaret Paxton Memorial for Convalescent Children having been chartered and organized, the executors of Mrs. Paxton, on September 5, 1923, executed to it a deed conveying fifty acres of land upon which “Carlheim” residence is located. This parcel of fifty acres was so laid off as to extend across and include a considerable part of the roadway from the farm dwelling to the Leesburg and Point of Rocks turnpike.
The executors afterwards undertook to sell the balance of the farm, 810 acres, at public auction, but not receiving a satisfactory bid, it was taken in. At this public offering, with the consent of the trustees of the Memorial Corporation, it was announced that an easement of right-of-way over the roadway would go with the land. W. H. Howser, the hold-over tenant of Mrs. Paxton, was using the roadway as appurtenant to his lease.
Charles Adsit having died, the surviving executor, Dr. W. C. Orr, by contract in writing, sold the residue of the land for $60,000.00 to the defendants, Whitmore and Littlejohn, subject to the lease of Howser. After the public offering of the balance of the farm, the trustees served notice upon Dr. Orr to the effect that the residue of the farm did not have an easement over said roadway. Dr. Orr maintained that such easement *1033passed with, the land. He executed a deed to the defendants for the land without mentioning the easement over the roadway. Thereupon the plaintiff corporation filed its bill in chancery, in the Circuit Court of Loudoun county, to perpetually restrain and enjoin the grantees and the tenant, Howser, from using said roadway.
Dr. Orr claimed that an easement over the roadway was appurtenant to the land. His deed to the defendants by virtue of section 5168 of the Virginia Code conveyed to them all the appurtenances of every kind belonging to the lands embraced therein.
The contract of sale between Dr. Orr and the defendants was an executory contract for the sale of land, and the general rule of law is that where .an executory contract of sale is followed by a subsequent deed, in the absence of fraud or mistake, the executory contract and the rights of the parties rest solely on the executed contract or deed. The plaintiff, not being a party or privy to either of these contracts, cannot invoke the contract of sale to limit the legal effect of the deed.
Upon the bill and exhibits, affidavits and testimony taken orally before the court, the learned chancellor decided that the easement did not exist, and perpetually enjoined the grantees from using the driveway. From this decree the defendants have appealed.
It is the contention of the plaintiff that defendants did not have the right-of-way over the “driveway” after the devise to the corporation, unless it was a “way by necessity.” The court took that view of the case and so ruled in taking the testimony, while the defendants claimed the right to use the roadway as appurtenant to the land. The issue therefore is in a narrow compass. The plaintiff claiming that the intent of the testator in devising the driveway to it in fee *1034simple, gave it the exclusive right to the same. The defendants on the other hand claim that it was the intent of the testator to devise the driveway subject to the easement in favor of the residue of the farm as used during her life.
It is true that Mrs. Paxton, the fee simple owner of the whole property, could not have had a separate easement (a lesser estate) in the driveway from the barns and farm dwelling to the public road. Nevertheless during the lifetime of her husband and herself, for nearly forty years, this driveway was used by their tenants as an easement appurtenant to said leases, and when she came to partition the land between the plaintiff and her executors she must have had-in mind' this driveway and its continuous use by herself and tenants. Hancock v. Thornhill, 119 Va. 103-105, 89 S. E. 97.
The case of Scott v. Moore, 98 Va. 668, 37 S. E. 342, 81 Am. St. Rep. 749, involved the easement in alleyway over No. 400 East Franklin street in the city of Richmond as appurtenant to the adjoining lot No. 402. Both lots were owned by James Caskie, who in his lifetime established the alley-way, which was used as appurtenant to No. 402. James Caskie died in the year 1866, and by will left No. 400 to trustees for the benefit of the family of his son James A. Caskie; and No. 402 to his son John S. Caskie, thus by his will he severed his entirety of ownership as was done by Mrs. Paxton in the instant case.
The said lots passed by mesne conveyances to the parties to that suit; lot No. 402 to the appellant Scott, and lot No. 400 to the appellee Moore. The appellee, who prevailed in the trial court, contended, that it requires descriptive words of grant or reservation in the will to create an easement in favor of one part of a *1035heritage over another, and as there were no descriptive words of grant or reservation in the C aside will to create the easement in favor of the owner of premises No. 402, no such easement existed.
Judge Cardwell, who delivered the opinion of the court reversing the decree of the trial court, in discussing the law on this subject, on page 675 of 98 Va. (37 S. E. 344), cites the general rule as set forth in Washburn on Easements on pages 102-103, as follows:
“Although it might, perhaps, be difficult to embody the leading doctrine of the foregoing cases into any general proposition, it would seem that, in case of a division of an estate consisting of two or more heritages, whether an easement or convenience which may have been used in favor of one, in or over the other, by the common owner of both, shall become attached to the one, or charged upon the other, in the hands of separate owners, by a grant of one or both of those parts, or upon a partition thereof, must depend, where there are no words limiting or defining what is intended to be embraced in such deed or partition, upon whether such easement is necessary for the reasonable enjoyment of the part of such heritage as claims it as an appurtenance. It must be reasonably necessary to the enjoyment of the part which claims it, and where that is not the case, it’requires descriptive words of grant or reservation in the deed to create an easement in favor of one part of a heritage over another.”
Again on page 105, it is said:
“It may be considered as settled law in England, (1) that where the owner of two adjoining lots sells one, he does not reserve impliedly for the benefit of the other easement except those of strict necessity, such as a way of necessity; but, (2) that he does impliedly grant to the grantee all those continuous and apparent ease*1036ments which are necessary for the reasonable use of the property granted, and which have been, or are at the time of the grant, used by the owner of the entirety for the benefit of the part granted; (3) if he sells both lots at the same time, each grant carries all the apparent and continuous easements, which are necessary for the reasonable use of the property granted, and which have been or are at the time of the grant used by the grantor for the benefit of such property.”
As stated by Judge Cardwell in Scott v. Moore, supra:
“It is under this latter clause mainly that the case we have in hand comes.” So we must conclude that the instant case comes under said clause.
The decisions upon the subject of implied grant in the different States of the Union are numerous and often conflicting, but the court in Scott v. Moore, supra, 98 Va. pages 676-677, 37 S. E. 345 (81 Am. St. Rep. 749), quotes with approval the following language from Elliott v. Rhett, 5 Rich. (S. C.) 405, 57 Am. Dec. 750, and notes, making it the law in Virginia, as follows:
“Apart from all considerations of time, there is implied, upon the severance of a heritage, a grant of all those continuous and apparent easements which have in fact been used by the owner during its unity, though they have no legal existence, as well as of all those necessary easements without which the enjoyment of the several portions could not be fully had.”
“The opinion of the Supreme Court of Maryland by Miller, J., in Mitchell v. Seipel, 53 Md. 251 36 Am. Rep. 404, is an able and elaborate discussion of the American English cases as to the law applicable to cases where the severance of heritage is by simultaneous conveyance to separate persons, and it is said:
“ ‘All these continuous or apparent easements, or, in *1037other words, all these easements which are necessary to a reasonable enjoyment of the premises granted, and which have been, or are at the time of the grant, used by the owner of the entirety for the benefit of the part granted will pass to the grantee under the grant.’ ”
The ride of law laid down in this latter case is identical with Elliott v. Rhett, supra, but it goes further and adds “as well as of all those necessary easements without which the enjoyment of the several portions could not be fully had.”
The driveway in the instant ease was apparent, and had been in continuous use by the owners of the heritage and their tenants for more than forty years, as necessary to a reasonable enjoyment of the premises devised. It had been, and was at the time of the devise, used by the owner of the entirety for the benefit of the part of the farm devised to her executors, for sale, and the easement therein passed to their grantee. The evidence in the case shows that this driveway was reasonably necessary to the enjoyment of that part of the farm; that it would cost a considerable sum of money to build another road, and if the purchasers of the farm had not believed it an appurtenance, they would have paid less for the farm.
When the will was drawn (which was clearly prepared by an attorney of learning and ability) and up to the time of her death, the driveway was plainly visible, notorious and jointly used by her tenants and herself, and it may be fairly presumed that she intended its preservation. But this driveway in its lower stretches was upon the land she designed to devise to her executors for sale, and if she devised the fifty acres of land to the plaintiff, without the driveway, the executors and their grantees would have taken the driveway subject to the implied use and benefit of the *1038fifty acre tract because reasonably necessary and convenient thereto. To prevent any controversy over this right, she gave the roadway with the fifty acres of land to the plaintiff.
There is another very manifest reason why the driveway was given to the plaintiff. The executors were given authority to sell the residue of the farm upon such terms as they may deem best for the estate. If they had been given the driveway, they could have added as many servitudes thereon as they saw fit. By virtue of the manner of division of her real estate by the testator, no other or greater servitudes can be placed upon this driveway than were enjoyed by her tenants in her lifetime.
It does not seem to us that the fact that the testator devised the driveway with the fifty acres of land to the plaintiff shows clearly an intention to discontinue its use and enjoyment as appurtenant to the residue of the tract, nor overcome the presumption of law that she intended its preservation. Her intent as gathered from the language of the will and the surrounding circumstances was to make the plaintiff the owner of the servient estate, and the residue of the farm the dominant estate.
Judge Cardwell, after reviewing the former decisions in Virginia on this subject in Scott v. Moore, supra, on page 683 of 98 Va. (37 S. E. 347), states the rule of law, where the owner of a heritage by contemporaneous conveyance severs the same, and what easements pass by implication with the respective estates, in the following paragraph:
“ ‘Servitudes adopted by the owner which are plainly visible and notorious, and from the character of which it may be fairly presumed that he intended their preservation as necessary to the enjoyment of his prop*1039erty, become, when lands are divided and pass into other hands, permanent appurtenances thereto, and neither the owner of the dominant or servient portions of the land have power to adversely interfere with their proper use and enjoyment.’ Phillips v. Phillips, 48 Pa. St. 178 [86 Am. Dec. 577]; Eby v. Elder, 122 Pa. St. 342 [15 Atl. 423]; Stein v. Dahm, 96 Ala. 485 [11 So. 957].”
The fact that there was another farm road from the farm dwelling to the United States Government road which was used infrequently does not deprive the purchasers of their rights in this driveway. The defendants rights are not based upon the principle of a right-of-way by necessity, but is a matter of intention of the testator. Nor do the contentions of the plaintiff that (a) “the right-of-way is not a continuous easement,” and (b) that the roadway in question is not “reasonably necessary” to the enjoyment of the estate of the defendants apply to the easement in this case.
For the reasons above set forth, I think the decree complained of should be reversed, but the majority of the court, for reasons set forth in the opinion of Crhmp, P., have decided to affirm the decree, and a judgment of affirmance will therefore be entered.