Torrance, J.
In 1851 John
W.
and Benjamin F. Brown owned a piece of land in New London fronting on the river Thames and lying between that river and Bank street. On the river front was a wharf and docks, and between the wharf and Bank street was about an acre and a half of land used by the Browns in carrying on a coal and wharfage business. The wharf was then very valuable, but less so than at present, because of added improvements. In June o.f that year the Browns conveyed, for railroad purposes, to the New Haven & New London Railroad Company, a strip of this land, twenty-five feet wide, running through the land and separating the wharf from the land lying westerly of the strip conveyed, and rendering it inaccessible except by crossing the strip. This right of crossing was indispensable to the Browns and all who might own the premises then owned by them.
This strip of land was conveyed by a warranty deed, which provided, among other things, that it should be used for the purposes of a railroad, “ and for no other use and purpose whatever.” It further provided as follows :—“ And the said company is to lay their track so that the top of the rail shall be on the general level of the ground of our wharf.” * * * “ And we reserve to ourselves the privilege of crossing and re-crossing said piece of land described, or any part thereof within said bounds.” * * * “And said railroad company shall secure our water-pipes from all harm or damage where they cross said described land, and shall so arrange them that they may be attended to at any and all proper times when necessary for repairs or laying down anew.”
The defendant is the successor of the grantee in the deed and entitled to all the rights under the same which the grantee had thereunder. The plaintiffs now own the prem
ises formerly owned by the Browns, and, it- is found; are entitled to all the rights in the strip conveyed “ which attached to said lands belonging to said Browns ” after giving the deed aforesaid, or which said Browns “ saved or reserved ” in said deed “ or which attached as conditions to the estate granted under said deed and which were not terminated upon the deaths of said Browns.”
John
W.
Brown died in 1879 and Benjamin P. Brown died in 1885. One of the plaintiffs and his successive co-tenants and partners have owned and occupied the Brown premises and have carried on a very extensive business there as coal dealers and wharfingers since 1871, when the premises were purchased from one of the Browns, who had then become the sole owner thereof. The plaintiffs have openly and continuously, and under claim of right and without hindrance or objection, since 1871 exercised all the rights excepted or reserved in the deed of 1851 in favor of the grantors therein. They have crossed the strip of land conveyed at any and all times, and at any point and for all purposes. The amount of coal alone carted across annually is about twenty thousand tons. They have also laid new water-pipes across the strip and repaired the old ones' when necessary. Since 1871 the docks and lands of the plaintiffs and the tracks of the defendant have remained at the same general level with each other, but the defendant since that time has had no occasion until recently to raise its tracks at this point, but by reason of improvements and changes near this point this has now become necessary. The strip has been at all times used as a railroad bed. The defendant and its predecessor had no knowledge of any claim of rights over or in the strip, on the part of the Browns or their assigns, except such as was inferable from their use of the strip and from the record of the deeds.
The defendant now proposes and threatens to raise its track over the strip about three arid one half feet at thé south line of the plaintiffs’ land and about two and one half feet at the north line, and it is found that “when so raised' it will be impossible for the plaintiffs to cross said track
with teams, without constructing approaches, which will occupy and render useless a part of the dock, and the gravel and material used in constructing said track and road-bed can only be retained within said locus and prevented from running on to the plaintiffs’ said land and dock, by a retaining wall, which will greatly increase the burden of lateral support by the plaintiffs’ dock, outside of said locus, there, being but twelve feet from said retaining wall to the edge of the wharf at one point.”
Since 1871 the plaintiffs have expended about seventy-five thousand dollars in improving their docks in walls, filling coal bins and coal pockets, which it is found “ will be cut off from access if the plaintiffs have no right of way across said locus, and which will be greatly depreciated in value if said track is changed and maintained at the proposed new grade, unless the plaintiffs at large expense raise the general level of the land and docks, and extend the docks into the river.” The plaintiffs have also expended about fifteen thousand dollars on the land west of the docks, to fit it for use in connection with the docks. If the track should be raised as proposed and threatened, the plaintiffs could only with great difficulty repair or lay water-pipes across the strip.
These in substance are the facts found, and upon them two questions are reserved for the advice of this court, namely—1. Whether the defendant has the legal right to raise its track and road-bed as proposed within said locus. 2. Whether such raising of the track and road-bed ■ is an illegal disturbance of any of the plaintiffs’ rights, and if so of what rights.
The controversy between the parties relates chiefly to the right of way across the railroad. The defendant contends that such right of way was, at most, one during the life of the survivor of the Browns, and not to them and their heirs and assigns.
This claim is founded on the well-settled rule of the common law that to create an estate of inheritance in land by deed to an individual, it is absolutely necessary, with some
few and well-settled exceptions, within which it is claimed the present case does not eome, to use the word “heirs,” and that “ no circumlocution or other words will supply the place of that word.” 1 Swift’s Digest, top p. 77; Challis on Real Prop., 170. This rule, it is true, “has obviously become a mere arbitrary rule, still, unless changed by statute, it is as imperative as a rule of law as ever.” 1 Wash-burn’s Real Prop., chap. 2, par. 53. In England and many of our states the rule has been so changed, but not in our own state.
This rule has been applied quite generally to “ exceptions ” and “ reservations,” so called, in deeds, as well as to “grants” of land or of interests therein, express or implied, to which it is more properly applicable. It is not applicable, and has never been properly applied, to an “ exception ” in the correct sense of the term, as will be shown hereafter; but the distinction between an “ exception ” and a “reservation” is frequently quite obscure and uncertain and has not always been observed.
As the technical words of limitation were not used in “ reserving ” the right of way to the Browns, the defendant contends that the easement did not extend beyond the life of the survivor of them. We think this claim is not well founded.
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Torrance, J.
In 1851 John
W.
and Benjamin F. Brown owned a piece of land in New London fronting on the river Thames and lying between that river and Bank street. On the river front was a wharf and docks, and between the wharf and Bank street was about an acre and a half of land used by the Browns in carrying on a coal and wharfage business. The wharf was then very valuable, but less so than at present, because of added improvements. In June o.f that year the Browns conveyed, for railroad purposes, to the New Haven & New London Railroad Company, a strip of this land, twenty-five feet wide, running through the land and separating the wharf from the land lying westerly of the strip conveyed, and rendering it inaccessible except by crossing the strip. This right of crossing was indispensable to the Browns and all who might own the premises then owned by them.
This strip of land was conveyed by a warranty deed, which provided, among other things, that it should be used for the purposes of a railroad, “ and for no other use and purpose whatever.” It further provided as follows :—“ And the said company is to lay their track so that the top of the rail shall be on the general level of the ground of our wharf.” * * * “ And we reserve to ourselves the privilege of crossing and re-crossing said piece of land described, or any part thereof within said bounds.” * * * “And said railroad company shall secure our water-pipes from all harm or damage where they cross said described land, and shall so arrange them that they may be attended to at any and all proper times when necessary for repairs or laying down anew.”
The defendant is the successor of the grantee in the deed and entitled to all the rights under the same which the grantee had thereunder. The plaintiffs now own the prem
ises formerly owned by the Browns, and, it- is found; are entitled to all the rights in the strip conveyed “ which attached to said lands belonging to said Browns ” after giving the deed aforesaid, or which said Browns “ saved or reserved ” in said deed “ or which attached as conditions to the estate granted under said deed and which were not terminated upon the deaths of said Browns.”
John
W.
Brown died in 1879 and Benjamin P. Brown died in 1885. One of the plaintiffs and his successive co-tenants and partners have owned and occupied the Brown premises and have carried on a very extensive business there as coal dealers and wharfingers since 1871, when the premises were purchased from one of the Browns, who had then become the sole owner thereof. The plaintiffs have openly and continuously, and under claim of right and without hindrance or objection, since 1871 exercised all the rights excepted or reserved in the deed of 1851 in favor of the grantors therein. They have crossed the strip of land conveyed at any and all times, and at any point and for all purposes. The amount of coal alone carted across annually is about twenty thousand tons. They have also laid new water-pipes across the strip and repaired the old ones' when necessary. Since 1871 the docks and lands of the plaintiffs and the tracks of the defendant have remained at the same general level with each other, but the defendant since that time has had no occasion until recently to raise its tracks at this point, but by reason of improvements and changes near this point this has now become necessary. The strip has been at all times used as a railroad bed. The defendant and its predecessor had no knowledge of any claim of rights over or in the strip, on the part of the Browns or their assigns, except such as was inferable from their use of the strip and from the record of the deeds.
The defendant now proposes and threatens to raise its track over the strip about three arid one half feet at thé south line of the plaintiffs’ land and about two and one half feet at the north line, and it is found that “when so raised' it will be impossible for the plaintiffs to cross said track
with teams, without constructing approaches, which will occupy and render useless a part of the dock, and the gravel and material used in constructing said track and road-bed can only be retained within said locus and prevented from running on to the plaintiffs’ said land and dock, by a retaining wall, which will greatly increase the burden of lateral support by the plaintiffs’ dock, outside of said locus, there, being but twelve feet from said retaining wall to the edge of the wharf at one point.”
Since 1871 the plaintiffs have expended about seventy-five thousand dollars in improving their docks in walls, filling coal bins and coal pockets, which it is found “ will be cut off from access if the plaintiffs have no right of way across said locus, and which will be greatly depreciated in value if said track is changed and maintained at the proposed new grade, unless the plaintiffs at large expense raise the general level of the land and docks, and extend the docks into the river.” The plaintiffs have also expended about fifteen thousand dollars on the land west of the docks, to fit it for use in connection with the docks. If the track should be raised as proposed and threatened, the plaintiffs could only with great difficulty repair or lay water-pipes across the strip.
These in substance are the facts found, and upon them two questions are reserved for the advice of this court, namely—1. Whether the defendant has the legal right to raise its track and road-bed as proposed within said locus. 2. Whether such raising of the track and road-bed ■ is an illegal disturbance of any of the plaintiffs’ rights, and if so of what rights.
The controversy between the parties relates chiefly to the right of way across the railroad. The defendant contends that such right of way was, at most, one during the life of the survivor of the Browns, and not to them and their heirs and assigns.
This claim is founded on the well-settled rule of the common law that to create an estate of inheritance in land by deed to an individual, it is absolutely necessary, with some
few and well-settled exceptions, within which it is claimed the present case does not eome, to use the word “heirs,” and that “ no circumlocution or other words will supply the place of that word.” 1 Swift’s Digest, top p. 77; Challis on Real Prop., 170. This rule, it is true, “has obviously become a mere arbitrary rule, still, unless changed by statute, it is as imperative as a rule of law as ever.” 1 Wash-burn’s Real Prop., chap. 2, par. 53. In England and many of our states the rule has been so changed, but not in our own state.
This rule has been applied quite generally to “ exceptions ” and “ reservations,” so called, in deeds, as well as to “grants” of land or of interests therein, express or implied, to which it is more properly applicable. It is not applicable, and has never been properly applied, to an “ exception ” in the correct sense of the term, as will be shown hereafter; but the distinction between an “ exception ” and a “reservation” is frequently quite obscure and uncertain and has not always been observed.
As the technical words of limitation were not used in “ reserving ” the right of way to the Browns, the defendant contends that the easement did not extend beyond the life of the survivor of them. We think this claim is not well founded.
If, in construing the “ reservation ” in question, we lay out of view the technical rule above mentioned, it is difficult to believe that the parties to the deed intended that the right to cross was only to exist during the lives of the grantors. The situation and needs of the grantors’ premises seem to forbid such a belief. The way at the date of the deed was an existing one, plainly visible, and necessary, and in almost constant use. The right to continue to use it was an almost absolute necessity, not only to the grantors, but to all subsequent owners of the premises. Without it the wharf would be practically worthless, and the value of the other land would be greatly diminished. Then again, if the deed had been silent as to the right to cross, the law would have given an adequate “ way of necessity ” in favor
of the owners of the premises.
Collins
v. Prentice, 15 Conn., 39;
Myers
v.
Dunn,
49 id., 71. In the absence of any relinquishment of such a way of necessity in ¡the deed, it is hard to believe that the parties intended, by an express reservation, made under these circumstances, .to give to the grantors or allow them to retain a less extensive right than the law would have given if nothing had been said in the deed about the right to cross.
Then too the right to cross was, in a certain sense, a right existing in the grantors at the date of the deed. . It was. a part of their full dominion over the strip about to be Conveyed by the deed, and not a right to be, in effect, conferred upon, them by the grantees. It was something which the ■“ reservation ” in effect excepted ’’ out of the operation of the grant.
Hence it is quite reasonable to conclude that the stipulation as to the right of way was intended by both parties to give a right not temporary and personal, but permanent, and for the benefit not so much of the Browns as of 'the premises they continued to hold. In such cases we think the rule is well settled that a permanent easement in favor of the retained land may be made without words of limitation.
The rule in question has been thus stated:—“In respect to whether a reservation is of a perpetual interest like a fee in the easement reserved, the question seems to turn uppn whether it is a personal right, an easement in gross, or ope for the benefit of the principal estate, whoever may be its owner. In the latter case it is held to be a permanent right, appurtenant to the principal estate in the hands of successors and assigns without words of limitation.” Washburn on Easements, 4th ed., chap. 1., sec. 5, par. 2. The question .whether the easement is “ for the benefit of the principal estate, whoever may be its owner,” is to be determined fi;o,m the intent of the parties as gathered from the language em.ployed to express it, read in the light of the surrounding •circumstances.
The rule above mentioned has, we think, been recognized
and acted upon by this court. It was recognized in the ease-of
Kennedy
v.
Scovil,
12 Conn., 326. In that case the deed contained the words “always provided that this deed is given on condition that the grantors are to have and retain, the privilege of conveying water from said dam similar to the one now in use,” etc., without words of limitation. The language of the court is—“ What did the parties intend by the reservation in question? And for the purpose of ascertaining the intention it is proper to take into consideration the condition of the property and the circumstances of the parties in relation thereto. * * * The objection is that the use is reserved to them without naming heirs and assigns. * * * It is true that the right is reserved to them without words of inheritance and without naming their assigns. But.it becomes material to enquire for
what purpose the reservation was made.
It was ‘ for the necessary accommodation and use of the old shop.’ Of this they were the owners in fee simple; and can it be supposed that they meant to' limit the use of the water without which the establishment was of no value to their own personal occupancy ? And can it be believed that such was the intention of the parties to this deed ? The idea is opposed to every presumption and to all probability. Are we then prevented by any rigid rule of construction from giving effect to the intention of the parties? We know of none, and we think this part of the case entirely free from doubt.”
This rule was applied in the case of
Randall
v. Latham, 36 Conn., 48. The deed in that case contained this clause: —“Reserving and excepting the following privileges; to wit,—the privilege of the. right of way in common with said grantee in the land; * * * and also the said grantor is to have the privilege of drawing the water from the ditch of said Latham’s grist mill at all times * * * for the' accommodation of the factory below said Latham’s mill.” The point was distinctly made that the stipulation as to .water was a bare license to the grantor so long as he continued to own the mill. But the court held that it was an easement permanently attached, to. the factory, which passed to the
assigns of the grantor. The court- on this point said:— “ But it is said the agreement was only a license to Thomas (the grantor) to draw the water for so long a time as he should own the mill below. This claim is in conflict with all the facts of the case. The right to the water is reserved without limitation as to time. It was made for the benefit of the mill below and manifestly was designed to be appurtenant to it. It would not only be beneficial so long as Thomas should own the mill, but would enhance its value-to some extent when sold.” ,
In
Mather
v. Chapman, 40 Conn., 382, 401, the' “ reservation ” was without words of'limitation. It is true the objection was not taken there, but both court and counsel seem to proceed on the theory that they were not necessary under the circumstances. So too in
Myers
v.
Dunn,
49 Conn., 71, the “ reservation ” of a way contained no proper technical words of limitation, but the effect of the decision-is to sustain the rule in question.
The rule has been applied in other states, as may be seen, by reference to the following
decisions:—Borst
v.
Empie,
1 Selden, 33;
Mendall
v.
Delano,
7 Met., 176;
Dyer
v.
Sanford,
9 id., 395;
Bowen
v.
Conners,
6 Cush., 132;
Smith
v.
Higbee,
12 Verm., 113;
Karmuller
v.
Krotz,
18 Iowa, 352. In this last case, it is true, technical words of limitation were by statute made unnecessary; nevertheless it is an authority for the rule that where an easement is manifestly intended “ for the benefit of the principal estate, whoever may be its owner,” it will be held to be a permanent easement rather than a personal one.
The rule in question therefore seems to be sustained by authority, and we think it is founded in reason and good sense. The truth is that in adopting and applying this rule courts have frequently in effect treated such “reservations ” as if they had been “ exceptions ” in the proper sense of the word. The words “ reserve ” and “ reserving,” and “except” and “excepting,” in deeds, are often used interchangeably, and it is not always • easy to determine which was intended except by a reference to the subject matter
and surrounding circumstances.
Barnes
v.
Burt,
38 Conn., 542. “ The operation of an exception in a deed is to retain in the grantor some portion of his former estate which by the exception is excluded from the grant; and whatever is thus excluded remains in him as of his former right or title, because it is not granted.”
Ashcraft
v.
Eastern
R.
R. Co.,
126 Mass., 196. If this is a correct statement of the effect of an “ exception ” proper, and we think it is, it follows that no words of limitation are necessary in such cases.
A way or right of way “reserved” has often been treated in effect as if it had been “ excepted ” out of the grant, and on principle we see no reason why this may not be done in cases like the present to effectuate the plainly manifested intent of the parties. In the following cases “ways” or “rights of way” were “reserved” in deeds without words of limitation, and yet the courts expressly treat them as “exceptions” proper.
Inhab. of Winthrop
v.
Fairbanks,
41 Maine, 307;
Smith
v.
Ladd,
id., 314;
Bowen
v.
Conners,
6 Cush., 132. In
White
v.
Crawford,
10 Mass., 183, the court was prepared to so hold if necessary to carry out the intent of the parties. In
Bowen
v.
Conners,
SHAW, C. J., says:—“ Upon principle it appears to us that this right plainly intended to be secured to the plaintiffs, can legally be secured in the manner adopted in this deed, treating the right reserved as an exception.” We think the case at bar comes within the rule and that the right to cross, “ reserved ” in the deed here in question, was a permanent one in favor of the land and premises retained by the Browns, and that it passed to the plaintiffs and is now owned by them.
We think this is also true in effect of the easement for water pipes across the strip of land conveyed. The defendant relies upon the case of
Ashcraft
v.
Eastern R. R. Co., supra,
as decisive of the present case in its favor: but we cannot take this view of the matter. That case differs materially from the present in some important respects. The language of the deed was as follows :—“ Reserving to myself the right of passing and re-passing, and repairing my
aqueduct logs, forever, through a culvert six feet wide and rising in height to the superstructure of the railroad, to be built and kept in repair by said company.” In the first place, so far as appears in the case as reported, there was here no “ way ” or “ right ” of necessity remaining to the grantor if nothing had been “ reserved ” in the deed. In the next place the rights “ reserved,” being through a culvert to be built and maintained in the future by the grantee, had no existence, properly speaking, prior to the delivery of the deed, and so could not possibly be “ excepted ” or created by “ exception ” or be treated as retained by “ exception,” and this is the essential distinction between that case and the one at bar. The “ reservation ” was in truth and effect a “ grant ” of new rights to the grantor from the grantee, and so it could not be treated as an exception. The court puts the case on this ground and expressly says:—“We are of opinion that this clause must operate as a reservation or by way of implied grant. * * * The clause we are considering does not merely reserve to Lovejoy a right of way and of maintaining aqueduct logs through the land granted. The privilege which the parties intended to vest in him was the right of passing and re-passing and of maintaining his aqueduct logs
through a culvert to be built and kept in repair by the grantee.
The provision that the grantee shall build and keep in repair the culvert is an essential part of the grant, and clearly indicates that the intention of the parties was to confer upon the grantor a new right, not previously vested in him, and which therefore could not be the subject of an exception.” In such a case the rule of common law requiring words of limitation to extend the easement beyond the life of the grantor may well be applied without conflicting with the present decision.
. We are also of the opinion that the stipulation in the deed that “ the said company is to lay their track so that the top of the rail shall be on the general level of the ground of our wharf,” has reference to the reserved right of crossing, and provides for a right of way at the then grade of the level of the land so long as the right of way shall exist,
It is in effect an agreement to maintain the track substantially at the then level of the ground, and binds the defendant.
The Superior Court is therefore advised that the defendant has no legal right to raise its track and road-bed within said
locus in quo
as proposed.
This renders a specific answer to the second question unnecessary.
In this opinion the other judges concurred.