the pipe. It was assignable and inheritable, to him, his heirs and assigns, and the use was restricted to the particular house now occupied by the plaintiff. Such a right may be conveyed without being restricted to a particular locality; and its character is not changed by reason of a restriction in that respect. A man may purchase such right restricted in its use to a particular house, or to a particular purpose, as for running a mill, although he may not own the house or mill; he may do this in contemplation of owning or of building a house or mill, and when he does so, the easement to take the water becomes annexed to the house or mill, or in other words may be availed of to the extent granted. Amidon not owning the fee, and the grant being to him, his heirs and assigns, affords a presumption that it was not intended to terminate the easement with his estate in the premises, but that it was intended it should pass to his heirs and assigns, who could enjoy it only so far as they could properly and legally annex it to the premises. The conveyance of the easement by the heirs of Amidon to the plaintiff gives her the power of enjoyment, and she can enforce any rights to the water which Amidon could have enforced. Goodrich v. Burbank, 12 Allen, 459; Lonsdale Co. v. Moses, 21 Law Reporter, 658, 664; Hankey v. Clark, 110 Mass. 262.

The easement being created by indenture with mutual covenants binding upon the heirs and assigns of both parties, the party entitled to enjoy it at the place designated may maintain an action for its disturbance. For all purposes of enjoyment and of maintaining the right to enjoy, it is annexed to the plaintiff's estate, and is a charge upon the lands of the defendants. White v. Crawford, 10 Mass. 183, 188; Bowen V. Conner, 6 Cush. 132, 137. It is too well established to require an extended consideration of the authorities, that a grantor has no right to derogate from his own grant, and that there is always an implied covenant that he will do no act to interfere with, prevent or diminish the full enjoyment of the right granted. Dexter v. Manley, 4 Cush. 14. It is misfeasance in a grantor to defeat the grant by a voluntary act on his part. The distinction was taken in an early case between the disturbance on the part of a grantor, by his own act, of an easement conveyed by him, and an alleged failure on his part to do some act, which not being done, the easement became worthless. As where the grantor of a way or a watercourse, or the right to draw water at a pump, cannot stop the way or the watercourse, or remove or destroy the pump, but is not bound to keep them in repair. Pomfret v. Ricroft, 1 Saund. 321. By such act the grantor attempts to exercise control over the thing granted, in derogation of his grant, in violation of the implied covenant that the grantee may enjoy it as against him. As when one covenants that another shall have a certain amount of wood annually, and the covenantor destroys all the wood, an action lies against him. And when a lessee covenanted that at the seasons for burning lime he would supply the lessor with lime at a certain price, it was held there was an implied covenant that he would burn lime

at all such seasons, and that it was no defence that at one season no lime was burned, so that the lessor could not be supplied. Shrewsbury v. Gould, 2 B. & Ald. 487; Sampson v. Easterby, 9 B. & C. 505; Saltoun v. Houstoun, 1 Bing. 433.

Applying these principles to the present case, it is clear, in the absence of a distinct provision to the contrary, that there is an implied covenant in the first, second and third clauses of the indenture, that Amidon, his heirs and assigns, shall have the right, as long as the water runs in the main pipe, to draw a sufficient supply for the families occupying the house of the plaintiff, without any disturbance by Negus or those claiming under him. The words, "so much water as

may be necessary for the supply," &c., &c., are not to be construed as merely a restriction on its use by the grantor, as contended by the defendants. They determine the extent of the use, apply to the grantor as well as the grantee, and indicate the measure of the rights of both parties. While the grantee may not use more than is required for the supply of the house, the grantor cannot limit or restrict the supply below that quantity. The words of a covenantor, or of a grantor, are to be construed more strictly as against himself. If by any act of Negus, or those claiming his estate, the supply is stopped or materially diminished, an action will lie. Nor is it necessary that the act should be done by the owner in person. It is no less the act of the owner, when done by another acting under his permission or authority; and the granting permission by an oral agreement to Bugbee to draw the water as alleged, and thereby to deprive the plaintiff of the enjoyment of the easement, is a breach of the covenants of the indenture by the defendants.

But the defendants contend that, even assuming this to be the law, there is a recital in the preamble which, properly construed, enables them to grant similar privileges without limit, whatever may be the consequences to the plaintiff. In the preamble Negus recites that "it is his intention to dispose of privileges to use said water so conveyed as aforesaid to such individuals as may desire to purchase the same." It is not necessary to consider how far these words of recital in the preamble can control the covenants, which are necessarily implied from the express covenants entered into by the grantor in the main body of the instrument, because we do not think they have the meaning contended for, or were intended as a reservation to the grantor to the extent of impairing the privilege of the grantee and derogating from and making worthless his grant, which is elsewhere given in clear and decisive words. The right of Negus to sell similar privileges to others is not derived from this recital in the preamble. He has that right independently of the indenture to sell all that he had not therein granted. He need not give notice of this to his grantee; he sells to him a limited quantity, and may sell and dispose of the surplus as he pleases. The statement was not made to reserve anything to himself, but evidently for another purpose. At the close of the second clause,

Amidon agrees to pay his proportion of the cost of repairing the main pipe, with others who may have similar privileges to use the water with him. Amidon being the first grantee, it was proper, in order to make this provision intelligible, that the preamble should state the facts that other similar privileges were to be conveyed, and that when conveyed, each house should bear one part of such expense. This provision for keeping in repair has also a strong bearing upon, and indicates the understanding of the parties that the benefits derived from the conveyance by Amidon were not to be diminished by the later conveyances; for it cannot be presumed from doubtful words inserted in a preamble, that Amidon would covenant to keep the main pipe in repair, in connection with other grantees, if the grantor could by increasing the number indefinitely render his grant worthless. This seems to have been the practical construction put upon the agreement by the parties in the lifetime of Negus, as he made similar conveyances to seven persons only, the last of which was made in 1856, and there was sufficient water for all, until the permission was given to Bugbee to take the

water.

We think, therefore, the bill can be maintained, if the plaintiff can establish the facts set forth. Demurrer overruled.

BOATMAN v. LASLEY.

SUPREME COURT OF OHIO. 1873.

[Reported 23 Ohio St. 614.]

MOTION for leave to file a petition in error to the District Court of Gallia county.

The original action was brought in the Court of Common Pleas of Gallia county by Matthew Lasley against Isaac Boatman and wife, to foreclose a mortgage executed by the defendants to secure the payment of purchase-money of the lands mortgaged. The mortgaged premises had been conveyed by the plaintiff to defendant, Isaac Boatman, on the 15th of March, 1870, by a deed containing a covenant that the demised premises were free and clear of all incumbrances. The defendant answered, and by way of counter-claim, alleged damages resulting from a breach of this covenant against incumbrances. The alleged incumbrance consisted of a private right of way over the warranted premises, outstanding at the date of the conveyance in one Alexander Logue. This right of way had been granted by deed, on the 7th day of June, 1862, by the warrantor, to "Logue, his heirs and assigns, and the tenants or occupiers for the time being of the lands now (then) owned and Occupied by the said Alexander Logue, in section 15, town 5, of range 14, in the Ohio Company's Purchase." It is also alleged in the answer,

that, before the 15th of March, 1870 (the date of the covenant), said Logue had conveyed his lands in section 15, town 5, of range 14, in the Ohio Company's Purchase, to one George W. Roush. It is not alleged, however, that Logue, at the time the right of way over the warranted premises was granted to him by the plaintiff, was the owner or occupier of any land in said section 15, or elsewhere, nor is it alleged that the right of way complained of became appendant or appurtenant to any land whatever, or that said Roush had any interest in said right of way.

The plaintiff, in his reply, denied that Roush had an easement or right of way on the premises granted to the defendant, and also denied that the defendant had sustained any damage by reason of the right of way complained of.

The cause was submitted to a jury, who assessed the defendant's damages, by reason of the existence of the right of way, at $100, which sum was deducted from the mortgage debt, and decree entered in favor of the plaintiff for the balance.

During the trial the defendant took a bill of exceptions, from which it appears that the defendants offered in evidence the deed for the right of way from Lasley to Logue, a copy of which is attached, marked "A." They also gave evidence tending to prove that said right of way was still in the occupation of said Alexander Logue, and those claiming under him, who were then occupying the lands to which said right of way was intended to be made appendant. "And the plaintiff, to maintain the issue on his part, gave evidence tending to show that at the time said deed of right of way was executed by him to Alexander Logue, the said Logue did not own the land to which the right of way was intended to be appendant, and that said Logue had, prior to the execution of the deed of right of way, conveyed said lands to one George W. Roush."

The evidence being closed, the court charged the jury as follows: "If the jury shall find from the evidence that at the date of the deed made by Lasley to Logue, marked A,' the said Alexander Logue, grantee therein, was not the owner in fee or otherwise of some real estate adjoining the farm through which said right of way is granted, or situate in the neighborhood, so that said right of way may become appurtenant to the same, then the said deed conveys a right of way personal to himself alone, one which cannot descend to his heirs, and one which he cannot assign or release to another person, except such other person be the owner of the farm through which said granted."

way

was

The judgment of the Common Pleas was afterward, on petition in error, affirmed by the District Court of Gallia county.

Leave is now asked to file a petition in error in this court to reverse the judgment below, for alleged error in the charge to the jury as above set forth.

Joseph Bradbury, for the motion.

W. H. Lasley, contra.

MCILVAINE, J. Is a private right of way over the lands of another, in gross, such an interest or estate in land, as may be cast by descent, or may be assigned by the grantee to one who has no interest in the land? These are the only questions in this case. If such a right be inheritable or assignable, the Court of Common Pleas erred in its charge; otherwise there is no error in the record.

The terms of the deed from Lasley to Logue plainly import an intention to make the right of way therein granted appendant and appurtenant to other lands, but the record does not disclose either the facts or the law given to the jury, whereby it could determine whether or not that intention was accomplished. It simply shows that the jury was instructed that if the right of way granted did not and could not, under the circumstances, become appurtenant to lands other than those over which it was granted, then it was a mere personal right in the grantee, which could not be inherited from him, or transferred by him to a stranger.

The correctness of this instruction does not depend upon a construction of the deed by which it was granted, for the terms of the grant are "to Alexander Logue, his heirs and assigns." The real question is, whether or not a private right of way in gross is, in law, capable of being transferred or transmitted.

It is strongly insisted upon, in argument, that a right of way in gross may be conveyed to the grantee "and to his heirs and assigns forever," because an owner in fee may carve out of his estate any interest less than the whole and dispose of the less estate absolutely; and this because the power to dispose of the whole estate includes a power to dispose of any part of it.

This argument assumes the affirmative of the very question in controversy, to wit, that such a right of way is an interest or estate in the land.

A mere naked right to pass and repass over the land of another, a use which excludes all participation in the profits of the land, is not, in any proper sense, an interest or estate in the land itself. Such a right is in its nature personal; it attaches itself to the person of him to whom it is granted, and must die with the person.

If such right be an inheritable estate, how will the heirs take? In severalty, in joint tenancy, coparcenary, or as tenants in common? If not in severalty, how can their interests be severed?

If it be assignable, what limit can be placed on the power of alienation? To whom and to how many may it be transferred? Why not to the public at large, and thus convert into a public way that which was intended to be a private and exclusive way only?

Where the way is appendant or appurtenant to other lands, very different considerations arise. There the right attaches to the lands to is appurtenant, because it is granted for the convenience of their occupation without respect to the ownership or number of occu

which the

way