Shippen, C. J.
The question in this case arises on the construction of the deed of 1704, from John Phelps and others, first purchasers of 5000 acres, to Shattick and Lane, whether a city lot annexed to that purchase, which had been laid out and surveyed six years prior to the date of the deed, did or did not pass to the grantees ?
The city lots are not expressly mentioned in the deed to be granted; but it is contended on the part of the plaintiffs, that by general and comprehensive words in the grant of the land, particularly by the words “ with their, and every of their appur- “ tenances,” the city lots were meant to be granted. And on the part of the defendants, it is contended, and so far very rightly [153]*153contended, that by the strictly legal effect and extent of the word appurtenances, land cannot be considered appurtenant to land ; but many of the authorities that establish this doctrine, do likewise settle, that if it appear to be the intention of the grantors, that lands should pass by these words, they will pass. The case therefore upon this point, resolves itself into a question of intention.
This intention must be chiefly collected from the deed itself; but in such an ancient transaction, it may receive some light from extraneous circumstances, and cotemporaneous expositions.
City lots have been uniformly described in ancient deeds and instruments as being held in right of, and as appurtenant to, the first purchases. The first proprietor himself, and his officers have generally, if not invariably, designated them as such. In one of the patents produced in the course of this argument, that to Henry James, the proprietor expressly describes the city lot as appurtenant to the purchase of 500 acres; and this case of Henry James, is certainly very apposite to the present one, notwithstanding the ingenious objections made to it. Now, when this word has been so generally used and appropriated to this kind of property, when a man grants the land in the ample and unreserved manner that this land is granted, together with every of its appurtenances, does it not indicate an intention to pass the lots so generally designated as appurtenants ?
Again, when the heir of Thomas Pearce grants his right to the original purchase of 5000 acres, with the appurtenances, and every part thereof, (he then resided in Ireland) with all his right and title to the same and every part thereof, in as ample and beneficial a manner, as he can, could or ought to have and hold the same, without making the least exception as to the city lot, could he mean to except it ? and what he did not mean to except, after using such comprehensive words, he must r* mean to grant. This idea too receives some confirma- *54 tion, from the grantors having actually made one exception, by the words except as is herein after excepted; which as appears afterwards, is that they should not be subjected to pay the proprietaries quit rents.
Again: it is now 100 years since the deed was executed. We do not know how long the grantors remained living, after the.deed was made; but if they did not mean to sell their whole estate, the city lots as well as the country land, is it not strange, that they should never make a separate grant of these lots to anv other person ?
But it is objected, that however the city lots might have been considered as appurtenant to the first purchase, while they remained connected with, and not separated from the 5000 acres, yet after surveys of the lots under warrants from the first proprietor, it could no longer be considered as such; the actual laying off and surveying the same, causing an entire severance and separation from the 5000 acres, being then, not held under [154]*154the original purpose, but a new and distinct title, namely, the warrants and surveys.
The right under which the first purchasers held the liberty land and city lots, was precisely the same, by which they held the country land: it was by the deeds of lease and release, together with the instrument called the concessions made to the purchasers, and to which they were parties, as well as the proprietor. By the first, the 5000 acres were granted generally: by the concessions it was stipulated in what manner the thing granted should be located and laid off, partly in tlje country and partly in the city and liberties. The whole was one purchase ; the consideration, money was paid equally for the liberty land and city lot as the country land. This appears by the patents for the city lots, the proprietor expressly declaring the grant made, to be for, and in consideration, in the indentures of lease and release mentioned; so that, altogether, they were considered as one entire purchase. In this view of the case therefore, it does not seem material which part was first surveyed, the only effect of the survey being to ascertain the several spots they had a right to, under the original purchase.
Upon the whole, I cannot resist the impression, that the grantors in the present case meant by their deed of 1704, to grant all the land they held; and of course their right to the city lots,' as well as the country land. My opinion therefore is, that judgments should be given for the plaintiffs.
Yeates, J.
I feel it my duty to declare, that my judgment is not satisfied, that the deed of 24th August 1704, passed the city lots in question, to James Shattick and Edward Lane, the gran- * tsl tees ^therein named. The terms of the deed, however large and general, or the word appurtenances, under all the circumstances of the case, are not sufficient, in my mind, legally to effect that end ; nor has that kind of evidence of the cotemporaneous exposition of such ancient deeds been offered, which satisfies my understanding in that particular.
I freely admit, that the original grantees, under the deeds of lease and release, or their descendants, not claiming the city lots, nor having transferred them to others, besides those under whom the plaintiffs claim, afford thereby a degree of evidence of intention in the parties, as to the premises in controversy: but this of itself, is not of sufficient weight to determine my judgment, to carry the construction of the deed to the extent contended for by the plaintiffs’ counsel. This opinion however, I pronounce with great diffidence, from my inexperience of the origin of titles to city lots in early times.
Smith, J.
The material question in this case is, whether the conveyance of 24th August 1704, transferred together with the 5000 acres, the city lots as appurtenant thereunto.
It is a general rule, that land cannot be appurtenant to land ; but this, like almost every other general rule, is subject to ex[155]*155ceptions. The clear intention of the parties may take the case out of the general rule. No rule can be general, unless as applied to a subject matter similar in every circumstance.
No case has been cited, where by the law of England, the grantee of an ascertained quantity of land is thereby entitled to a lot in any city. But by the grants from the first proprietors of Pennsylvania, every purchaser of a certain quantity of land in the country, is entitled of right, and as incident thereunto, to a proportioned city lot; and in all recitals of the proprietors respecting such city lots, they are said to be as appurtenant to the country land.
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Shippen, C. J.
The question in this case arises on the construction of the deed of 1704, from John Phelps and others, first purchasers of 5000 acres, to Shattick and Lane, whether a city lot annexed to that purchase, which had been laid out and surveyed six years prior to the date of the deed, did or did not pass to the grantees ?
The city lots are not expressly mentioned in the deed to be granted; but it is contended on the part of the plaintiffs, that by general and comprehensive words in the grant of the land, particularly by the words “ with their, and every of their appur- “ tenances,” the city lots were meant to be granted. And on the part of the defendants, it is contended, and so far very rightly [153]*153contended, that by the strictly legal effect and extent of the word appurtenances, land cannot be considered appurtenant to land ; but many of the authorities that establish this doctrine, do likewise settle, that if it appear to be the intention of the grantors, that lands should pass by these words, they will pass. The case therefore upon this point, resolves itself into a question of intention.
This intention must be chiefly collected from the deed itself; but in such an ancient transaction, it may receive some light from extraneous circumstances, and cotemporaneous expositions.
City lots have been uniformly described in ancient deeds and instruments as being held in right of, and as appurtenant to, the first purchases. The first proprietor himself, and his officers have generally, if not invariably, designated them as such. In one of the patents produced in the course of this argument, that to Henry James, the proprietor expressly describes the city lot as appurtenant to the purchase of 500 acres; and this case of Henry James, is certainly very apposite to the present one, notwithstanding the ingenious objections made to it. Now, when this word has been so generally used and appropriated to this kind of property, when a man grants the land in the ample and unreserved manner that this land is granted, together with every of its appurtenances, does it not indicate an intention to pass the lots so generally designated as appurtenants ?
Again, when the heir of Thomas Pearce grants his right to the original purchase of 5000 acres, with the appurtenances, and every part thereof, (he then resided in Ireland) with all his right and title to the same and every part thereof, in as ample and beneficial a manner, as he can, could or ought to have and hold the same, without making the least exception as to the city lot, could he mean to except it ? and what he did not mean to except, after using such comprehensive words, he must r* mean to grant. This idea too receives some confirma- *54 tion, from the grantors having actually made one exception, by the words except as is herein after excepted; which as appears afterwards, is that they should not be subjected to pay the proprietaries quit rents.
Again: it is now 100 years since the deed was executed. We do not know how long the grantors remained living, after the.deed was made; but if they did not mean to sell their whole estate, the city lots as well as the country land, is it not strange, that they should never make a separate grant of these lots to anv other person ?
But it is objected, that however the city lots might have been considered as appurtenant to the first purchase, while they remained connected with, and not separated from the 5000 acres, yet after surveys of the lots under warrants from the first proprietor, it could no longer be considered as such; the actual laying off and surveying the same, causing an entire severance and separation from the 5000 acres, being then, not held under [154]*154the original purpose, but a new and distinct title, namely, the warrants and surveys.
The right under which the first purchasers held the liberty land and city lots, was precisely the same, by which they held the country land: it was by the deeds of lease and release, together with the instrument called the concessions made to the purchasers, and to which they were parties, as well as the proprietor. By the first, the 5000 acres were granted generally: by the concessions it was stipulated in what manner the thing granted should be located and laid off, partly in tlje country and partly in the city and liberties. The whole was one purchase ; the consideration, money was paid equally for the liberty land and city lot as the country land. This appears by the patents for the city lots, the proprietor expressly declaring the grant made, to be for, and in consideration, in the indentures of lease and release mentioned; so that, altogether, they were considered as one entire purchase. In this view of the case therefore, it does not seem material which part was first surveyed, the only effect of the survey being to ascertain the several spots they had a right to, under the original purchase.
Upon the whole, I cannot resist the impression, that the grantors in the present case meant by their deed of 1704, to grant all the land they held; and of course their right to the city lots,' as well as the country land. My opinion therefore is, that judgments should be given for the plaintiffs.
Yeates, J.
I feel it my duty to declare, that my judgment is not satisfied, that the deed of 24th August 1704, passed the city lots in question, to James Shattick and Edward Lane, the gran- * tsl tees ^therein named. The terms of the deed, however large and general, or the word appurtenances, under all the circumstances of the case, are not sufficient, in my mind, legally to effect that end ; nor has that kind of evidence of the cotemporaneous exposition of such ancient deeds been offered, which satisfies my understanding in that particular.
I freely admit, that the original grantees, under the deeds of lease and release, or their descendants, not claiming the city lots, nor having transferred them to others, besides those under whom the plaintiffs claim, afford thereby a degree of evidence of intention in the parties, as to the premises in controversy: but this of itself, is not of sufficient weight to determine my judgment, to carry the construction of the deed to the extent contended for by the plaintiffs’ counsel. This opinion however, I pronounce with great diffidence, from my inexperience of the origin of titles to city lots in early times.
Smith, J.
The material question in this case is, whether the conveyance of 24th August 1704, transferred together with the 5000 acres, the city lots as appurtenant thereunto.
It is a general rule, that land cannot be appurtenant to land ; but this, like almost every other general rule, is subject to ex[155]*155ceptions. The clear intention of the parties may take the case out of the general rule. No rule can be general, unless as applied to a subject matter similar in every circumstance.
No case has been cited, where by the law of England, the grantee of an ascertained quantity of land is thereby entitled to a lot in any city. But by the grants from the first proprietors of Pennsylvania, every purchaser of a certain quantity of land in the country, is entitled of right, and as incident thereunto, to a proportioned city lot; and in all recitals of the proprietors respecting such city lots, they are said to be as appurtenant to the country land. It is acknowledged, that if at the conveyance of the country land with the appurtenances, the city lot incident thereto, was not surveyed, it would pass by the general words ; but it is contended, that by being surveyed, it is severed, and does not pass without special words descriptive of it; for that the patents granted on the warrants and surveys of the city lots, does not recite the original grant of the land. If so, I cannot hesitate to say, that the city lots will pass aftér such warrants and surveys, by the same general words, unless it can be clearly collected from all the circumstances that they were excepted.
No additional consideration is paid for the warrant to survey the city lot. It is granted for the lot, as appurtenant to the land, and recites the grant of the land. In vain therefore is it said, that the patent on the survey of the city lot does not recite ^the original grant, but only the warrant, when that warrant recites the original grant. *- 5
That the parties in interest against the construction contended for on the part of the plaintiffs, must have considered that the city lots did pass, may be inferred ; because, for about 80 years they never pretended to claim the same.
The meaning of the word appurtenances, being appropriated by the lord of the soil, and made descriptive of the city lots as incident to the land, it cannot be confined within the trammels of the laws of England.
It seems to me, that the city lot passes of course, by a grant of the lands with the appurtenances ; but the presumption that it does so pass, may,, like every other presumption, be repelled by evidence, that it was not the intention of the parties.
No circumstance has in this instance been brought to repel che presumption : on the contrary, it is fortified by the acquiescence of the original purchasers, and their heirs; none of whom came forward for 80 years, to claim these lots ; from whence it appears, that it was the intention of the parties to the deed of 1704, that the lots should pass with the land.
Brackenridge, J.
I had prepared a written opinion on this case, which I have mislaid, and cannot recover at present.
The right to the liberty lands and city lots, depends on the same word appurtenances. In the patent to Henry James, the proprietor adopts the word in its full extent. I think I cannot [156]*156account for the liberty land and city lots, not being specified m this deed : they were not much regarded, but viewed as objects at a great distance. De minimis non curat lex.
Cited in I Miles 49.
Cited in 74 Pa. 33 to show that land under some circumstances, may be so annexed to other land as to pass as an appurtenant.
The term appurtenances in the conveyance under consideration, has,a substantial application to the liberty lands and city lots ; and the non-claim of the original purchasers, and their descendants for so great a length of time, is a powerful proof of the intention of the grantors, to release all their claim and interest, under the primitive grant.
I am clear without difficulty, that judgment be entered for the plaintiffs.
Judgments pro quer.