Sec. 221. Miscellaneous notes. The description in the decree need not follow the complaint in terms, it being sufficient if it show the same real estate. McCartney v. Dennison et al., 101 Cal. 252 (35 Pac. Rep. 766). An assessment which does not contain a description sufficient to identify the property is void beyond curative power of subsequent legislation. Augusti v. Lawless, 45 La. 1370 (14 So. Rep. 228). A deed conveying lots 1, 2, 3 & 4, in a block, they being all the numbered lots in the block, does not pass title to any part of the strip of land included in said block, but not numbered as a lot. Young v. Crosgrove, 83 Ia. 682 (49 N. W. Rep. 1040). A conveyance of land bordering on a lake, the east boundary line of which is described as follows: "thence east to the shore of the lake; thence north, along said shore, to a certain point; and thence west," conveys all the riparian rights of the grantor in the lake. Castle v. Elder, Minn.

(59 N. W. Rep. 197). Where a deed bounds an estate by or on a public highway, the presumption is, if nothing else appears, that the center of the highway is the boundary line. Henderson v. Hatterman, 146 Ill. 555 (34 N. E. Rep. 1041); Citing, Dean v. Lowell, 135 Mass. 55.

EASEMENTS.

EPITOME OF CASES.

Sec. 222. Definitions-Appurtenant and in gross. An easement is a right without profit created by grant or prescription which the owner of one estate may exercise in or over the estate of another for the benefit of the former. Greenwood L. & P. R. R. Co. v. N. Y. & G. L. R. R. Co., 134 N. Y. 435 (31 N. E. Rep. 874). An appurtenant easement is an incorporeal right which, as the term implies, is attached to and belongs to some greater or superior right,-something annexed to another thing more worthy, and which passes as incident to it. It is a species of what the civil law calls a

"servitude." It is incapable of existence separate and apart from the particular messuage or land to which it is annexed, there being nothing for it to act upon. In order to the exist ence of an easement of this sort, there must be two distinct tenements, the dominant, to which the right belongs, and the servient, upon which the obligation rests. An easement in gross is a mere personal interest in the real estate of another, and is not assignable or inheritable. It dies with the person, and it is so exclusively personal that the owner of the right cannot take another person in company with him. Whether an easement in a given case is appurtenant or in gross is to be determined mainly by the nature of the right and the intention of the parties creating it. If it be in its nature an appropriate and useful adjunct of the land conveyed, having in view the intention of the grantee as to its use, and there being nothing to show that the parties intended it to be a mere personal right, it should be held to be an easement appurtenant to the land, and not an easement in gross; the rule for the construction of such grants being more favorable to the former than the latter class. Cadwalader v. Bailey, 17 R. I. 495 (23 Atl. Rep. 20; 14 L. R. A. 300).

Sec. 223. Creation of easements. Where the owner of certain land residing thereon conveys other land, with the reservation that one-half interest in the well thereon should be excepted, and that he should have the privilege of a right of way to and from the same, such reservation does not create a mere personal right, but an easement which passes by a conveyance thereof, which specifically grants this right. Dumesnil v. Dumesnil, 92 Ky. 526 (18 S. W. Rep. 229). Where a deed granting a right of way to the owner of a lot, "his heirs, assigns and the tenants and occupyers thereof at all times forever,” is executed on the same day as the deed conveying the lot to such owner by metes and bounds, it creates an easement appurtenant to such lot. Moll v. Mc Cauly, 83 Ia. 677 (50 N. W. Rep. 216). A deed to R., "his heirs and assigns, for the sole purpose of an alleyway, to be used in common with the owners of other property adjoining said alleyway,' conveys only an easement, and dedicates the land for use as an alleyway. Pellissier v. Corker, Cal. (37 Pac. Kep.

465). A reservation in a deed of a "reasonable right of way across the land” conveyed, does not entitle the owner of the dominant estate to enclose a right of way with fences. Sizer v. Quinlan, 82 Wis. 390 (52 N. W. Rep. 590). Where one conveys a part of his land expressly reserving an easement in favor of the portion retained, such easement will pass by a conveyance of this portion without special mention. Jones v. Adams, Mass. (38 N. E. Rep. 437). An agreement by a turnpike company to give a landowner the right to use its road free of toll, in consideration of a grant of a right of way, does not give the former an easement in the road. Kellett v. Ida Clayton & G. W. Wagon-Road Co., 99 Cal. 210 (33 Pac. Rep. 885). A reservation in a deed conveying one story of a building comprising two stories, of "the right to use the front stairs and the hall on the second floor in common with the owners of the premises hereby conveyed," creates an easement appurtenant to the premises retained, which passes to subsequent purchasers of them. Walz v. Walz, Mich.

(59 N. W. Rep. 431). Where a street has been platted and the portion that lies abutting thereon has been sold with reference to it, the easement as to the abutting owner does not depend upon the acceptance of the plat by. the authorities of the town or city. Merrill v. Newton, 99 Mich. 225 (58 N. W. Rep. 70). An easement may be created although the dominant and servient estates are not contiguous. Cady v. S. W. W. Co., 134 N. Y. 118 (31 N. E. Rep. 245); Dumesnil v. Dumesnil, 92 Ky. 526 (18 S. W. Rep. 229). Particular deed construed, and held to grant, as appurtenant to the premises conveyed, an easement for alley purposes in adjoining land. Long v. Fewer, 53 Minn. 156 (54 N. W. Rep. 1071). Case involving particular facts in which the evidence is considered and held sufficient to create an easement. Riley v. Stein, 50 Kan. 591 (32 Pac. Rep. 947).

Sec. 224. Creation of easement by prescription. When it is shown that there has been the use of an easement for twenty years, unexplained, it will be presumed to have been under a claim of right and adverse, and will be sufficient to establish a right by prescription, and to authorize the presumption of a grant, unless contradicted or explained. In

such a case the owner of the land has the burden of proving that the use of the easement was under some license, indulgence, or special contract inconsistent with the claim of right by the other party. Carmody v. Mulrooney, 87 Wis. 552 (58 N. W. Rep. 1109). To create the presumption of the grant of the right of way, the circumstances attending its use must be such as to make it appear that it was established for the benefit of the claimant, or that its use was accompanied by a claim of right, or by such acts as manifested an intention to enjoy it, without regard to the wishes of the owner of the land. The use must have been enjoyed under such circumstances as will indicate that it has been claimed as a right, and has not been regarded by the parties merely as a privilege revocable at the pleasure of the owners of the soil. Conyers v. Scott, 94 Ky. 123 (21 S. W. Rep. 530). There must be such an invasion of the rights of the party against whom the prescription is claimed that he would have had ground of action against the intruder. Richard v. Hupp, Cal. (37 Pac. Rep. 920). It is not indispensable to the establishing of a highway by adverse user that there be no deviation in the line of travel. If the travel has remained substantially unchanged, it is sufficient, even though at times, to avoid encroachments or obstructions upon the road, there may have been a slight deviation from the common way. Nelson v. Jenkins, Neb. (60 N. W. Rep. 311).

Where a city with the consent of a railway company lights and uses a footway in connection with the company's bridge for thirty-five years, it acquires an easement by prescription, and upon the removal of the bridge and the construction of a new one by the railway company a court of equity will compel the restoration of the footway. Kentucky Cent. R. Co. v. City of Paris, 95 Ky. 627 (27 S. W. Rep. 84). The uninterrupted adverse use of the water of an artificial aqueduct for twenty years, is sufficient to create a presumptive right to the enjoyment of it, to the extent of such use, in the same manner as would have been the case if the water had flowed in a natural channel; and the term of enjoyment requisite for the prescription is deemed to be uninterrupted when it is continued from ancestor to heirs, and from seller to buyer. Cole v. Bradbury, 86 Me. 380 (29 Atl. Rep.

1097). In Nebraska an easement may be acquired by ten years' adverse possession. Omaha & R. V. R. Co. v. Rickards, 38 Neb. 847 (57 N. W. Rep. 739). An easement by prescription can only be created by adverse use for a period sufficient to bar an action. Bell v. Sausalito Land & Ferry Co., Cal. (33 Pac. Rep. 449). Ten years adverse user of a dam for raising water partly on another's land gives an easement. Alcorn v. Sadler, 71 Miss. 634 (14 So. Rep. 444). In Kentucky a private way may be acquired by fifteen years adverse use. Hansford v. Berry, 95 Ky. 56 (23 S. W. Rep. 665). Mere divergences from the ordinary route of the way to avoid muddy or worn places do not affect the adverse use of it. Talbott v. Thorn, 91 Ky. 417 (16 S. W. Rep. 88).

Sec. 225. Grant of easement by implication. When the owner of land sells a part thereof, he impliedly grants to the grantee all those apparent and visible easements which are necessary for the reasonable use of the property granted, and which are at the time of the grant used by the owner of the entirety for the benefit of the part granted. This rule is not confined in its application to continuous easements, but applies to those artificial arrangements which openly exist and effect materially the value of the respective parts of the estate at the time of the sale. Paine v. Chandler, 134 N. Y. 385 (32 N. E. Rep. 18; 19 L. R. A. 99); Tooth v. Bryce, 50 N. J. Eq. 589 (25 Atl. Rep. 182). It is held that where the owner of land through which ran a public highway, the fee of which was in him, conveyed a portion bounded by but not including the highway, that he impliedly warranted to the grantee that so much of the highway as bordered on the premises granted should perpetually exist as an open way, and, in legal effect, granted such usual and necessary easements as would be comprehended in the free flow of light and air over the open way and in the free use thereof of such portion, and that such easements so granted survive the extinguishment of the public easement by an act of law. Holloway v. Southmayd, 139 N. Y. 390 (34 N. E. Rep. 1017, 1052). In a recent case the supreme court of Pennsylvania say: "Where an owner of land subjects part of it to an open, visible, per