delivered the opinion of the Court:
It appears from the evidence that the furnace in appellant’s house, which is used for the heating thereof, was set up and used by Crighton, its builder and the original owner of both the lots, as it is now erected; that it is not movable or portable, but is constructed so as to be permanent, being inclosed by a brick wall connected with the floor and basement wall; that the flue in question was especially planned and adapted for a smoke-escape and draft for the furnace; that there are besides a kitchen and laundry flue in the house, but that neither one of these can - be adapted or used for the furnace; that no other flue could be constructed for the use of the furnace without greatly injuring the house and involving material changes in its plan and arrangement. There is, it is true, the contradictory testimony of Crighton, that the smoke-pipe attached to the furnace might be connected with either of the other flues, and that they would either be sufficient to provide a proper draft for the furnace, and that the change could be made at an expense not to exceed one hundred dollars. But the testimony of practical architects, who had made a personal examination of the premises, including the one who made the plans and designs of the dwelling and superintended its erection, is to the effect as first above stated, and their testimony must be taken as more competent and satisfactory upon the point than that of Crighton. The closing of the flue, then; would appear to have the effect to render the furnace useless. TJnder such circumstances the flue, as it now is and ever has been, must be regarded as reasonably necessary to the beneficial enjoyment of appellant’s house. The location of the flue, or at least the greater portion of it, is in the south half of the south wall of the house.
The land upon which this south half of the wall rests, the appellee, Mrs. Plamondon, owns by conveyance of it to her from Crighton. This south wall, under the writings in evidence, must be regarded as a partition wall between appellant and Mrs. Plamondon, it having been paid for as such by her. Land covered by a party wall remains the several property of the owner of each half, but the title of each owner is qualified by the easement to which the other is entitled of supporting his building by means of the half of the wall belonging to his neighbor. Gartridge v. Gilbert, 15 N. Y. 601; Brooks v. Curtis, 50 id. 639 ; Hendricks v. Stark, 37 id. 106. The only proper easement attached to a party wall is the easement of support. This would give no right to the unobstructed use of the flue by appellant. The conveyance from Crighton to appellant of the north lot contains no express grant of such right. Was it acquired by implied grant under that conveyance ?
The rule of the common law upon the subject is, that where the owner of two heritages, or of one heritage consisting of several parts, has arranged and adapted these so that one derives a benefit or advantage from the other of a continuous and obvious character, and he sells one of them without making mention of those incidental advantages or burdens of one in respect to the other, there is, in the silence of the parties, an implied understanding and agreement that these advantages and burdens, respectively, shall continue as before the separation of the title. Washb. Easements, 58; Morrison v. King, 62 Ill. 30 ; Lampmam, v. Milks, 21 N. Y. 505; Jones v. Jenkins, 34 Md. 1. It may be noted that the deed here from Crighton to Ingals, specifically conveyed the house as well as the north lot.
Were the question between Crighton and Ingals, the equity of the latter to restrain Crighton’s interruption of the use of the flue by Ingals—circumstanced as the flue is in respect of the beneficial enjoyment of the house—would be plain.
In order that an easement should pass in the manner as above named, by implication, under the grant of an estate, it must be one that is apparent, as well as necessary and continuous. We regard the easement here claimed by appellant,of the uninterrupted use of this flue, as continuous, and necessary to the beneficial enjoyment of his house, and the only serious question with us as to the claim of this easement against the grantee of Crighton of the south lot, Mrs. Plamondon, is, whether the easement was an apparent one at the time of her purchase. Thére is no evidence in the record that at that time she had any actual notice or knowledge that any flue in the party wall was being or had been used by appellant for any purpose.
To affect her, the easement must have been obvious and apparent to any observer; an apparent sign of servitude must have existed on the part of the premises she purchased, in favor of those of appellant; or, as expressed by some of the authorities, marks of the burden must have been open and visible. Butterworth v. Crawford, 46 N. Y. 349; Washb. Easements, 60, 88. At the time of Mrs. Plamondon’s purchase, the entire south side of the south wall of appellant’s house stood exposed to view; the projection forming the flue stood out from the wall proper some eight inches, with the chimney thereon, and rested visibly on the land she purchased. We are of opinion that the easement claimed in the use of this flue by appellant was indicated by the condition of the premises; that it was obvious and apparent to any observer; that there were apparent signs of the servitude, and that the marks of the burden were open and visible, so as to satisfy the requirements of the authorities in such respect.
It is admitted that the projection in the wall indicated there was a flue there, but it is said that as it was on the south side of the wall it might have been taken as an indication that it was put there for the benefit of the building which might afterward be erected and joined on to the wall. But we think such would be a forced inference; that the reasonable conclusion should be, that the flue was constructed for the use of the building of which it constituted a part, and that the wall was to be used and enjoyed by the adjoining proprietors as a party wall, in the condition which it was then in, so far as respected this flue.
The decree dismissing the bill will be reversed, and the cause remanded for further proceedings consistent with this opinion.
Decree reversed.