(dissenting). I am of the opinion that the trial court reached a right conclusion upon the law and facts in this case and that it ought to be affirmed by this» court.
In the case of Smith v. Dresselhouse, 152 Mich. 451 (116 N. W. 387), Mr. Justice Ostrander, discussing the doctrine of implied reservations, quoted, with approval, the following general rule of easements:
“ It is a general rule of the law of easements that where the owner of two tenements sells one of them, the purchaser takes the portion sold with all the benefits and burdens which appear at the time of the sale to belong to it as between it and the property which the vendor retains. Seymour v. Lewis, 13 N. J. Eq. 439 (78 Am. Dec. 108). Every grant of a thing naturally imports a grant of it as it actually exists. United States v. Appleton, 1 Sumn. (U. S.) 502 (Fed. Cas. No. 14,463).”
Mr. Justice Selden, in speaking of this rule, said:
“ This is not a rule for the benefit of purchasers only, but is entirely reciprocal. Hence, if, instead of a benefit conferred, a burden has been imposed upon the portion sold, the purchaser, provided the marks of this burden are open and visible, takes the property with the servitude upon it.” Lampman v. Milks, 21 N. Y. 505.
If we are to take the foregoing rule as our guide in determining this case, I am very firm in the conviction that *170defendants took the deed of the premises burdened with the sewer. In arriving at this conclusion, the distinction made by Mr. Justice Brooke, in his opinion, between implied grants and implied reservations, has not been overlooked. Although there is a difference of opinion in the cases as to the degree of necessity required to create them, the better rule seems to be, and the one supported by the weight of authority is, that a reasonable necessity is sufficient to raise an implied grant; whereas, a strict necessity is necessary to raise an implied reservation. This court has adopted the strict necessity rule in Covell v. Bright, 157 Mich. 419 (122 N. W. 101). The question therefore arises whether the circumstances of this case are such as to bring it within the rule of strict necessity. A study of the record has persuaded me that they do. To establish her case it was necessary for complainant to show that the easement claimed was apparent, continuous, and strictly necessary.
Was the easement apparent? “Apparent easements” have been defined to be those the existence of which appears from the construction or condition of one of the tenements so as to be capable of being seen or known on inspection. 10 Am. & Eng. Enc. Law (2d Ed.), p. 405. To this class of easements belongs the bed of a running stream, an overhanging roof, a pipe for carrying water, a drain, or a sewer. Fetters v. Humphreys, 18 N. J. Eq. 262. And the mere fact that a drain or aqueduct, as the case may be, is concealed from casual vision, does not prevent it from being “apparent” in the sense in which that word is used in that connection. Larsen v. Peterson, 53 N. J. Eq. 88 (30 Atl. 1094).
Defendant testified that he did not know that the sewer extended through the premises conveyed to him. If he had no actual knowledge, he did have constructive knowledge of that fact. He had owned for upwards of 25 years premises side by side with the premises in question, with like improvements. He knew there was a sewer which served complainant’s premises because he had the front *171portion of them under lease nearly two years before he purchased the rear portion, and at the time there were five water-closets in the portion he had under lease. He knew that the sewer from his own premises was discharged into the Farmer’s alley sewer, and must have known that there was no other sewer into which it could be discharged and, if he did, it would not be unreasonable to assume that he knew the same thing was true of complainant’s premises. On one occasion, prior to his purchase, a portion of the floor in the rear part was taken up, which disclosed the sewer, and defendant was present at that time. Defendant had, before purchasing the property, talked and planned with complainant’s husband about building a theater where he has since erected one, and, in doing so, undoubtedly considered the question of plumbing among other questions of construction and arrangement. A knowledge of these facts was sufficient in the law to put defendant upon inquiry and to charge him with notice that the sewer traversed that portion of the premises purchased by him.
Is the easement continuous ? The sewer had been in existence for 20 years, was of a permanent nature, was in use at the time, and was susceptible of being used and enjoyed without making an entry on defendant’s premises, except for the purpose of repair. These facts would clearly bring it within the definition of a “continuous easement.” Larsen v. Peterson, supra.
Is the easement strictly necessary to the enjoyment of complainant’s premises ? The sewer in Farmer’s alley is the only one available for her use. The city engineer testified that one might be constructed to De Visser alley, but that it would be impracticable for the reason that, where it would discharge into that sewer, it would be only 18 inches underground. The topography of that part of the city is such that no other sewer can he constructed which will serve these premises without a prohibitive expense. A cesspool was suggested by complainant; but the city authorities would not permit it. She *172then made an effort to buy the right of her neighbor on the north to go through the partition wall and connect with his sewer, which also discharges into the Farmer’s alley sewer; but to this her neighbor would not consent. We have then a situation where complainant must be permitted to use the sewer which has served her premises for 2"0 years, if her building is to have any sewer service. If this situation, which nature has so fashioned that the sewage can be directed only in the direction of Farmer’s alley, does not bring it within the rule of strict necessity, it would, indeed, be difficult to suggest one. If greater exigency than here exists is required before the strict necessity rule can apply, there would be little use for the existence of the rule, as its use would be so infrequent as to render it useless.
In my opinion, the trial court found his way to a very equitable adjustment of the entire matter, and I think his decree should be affirmed.
Moore, J., concurred with Bird, J.