the property cannot be had without them. One selling property lying within the limits of a city, and in the conveyance bounding such property by streets designated as such in the conveyance, or on a map made by the city, or by the owner of the property, impliedly covenants that the purchaser shall have the use of such streets, although at the time of the sale they are unopened. The incidents which pass must be open and visible, though it is not essential that they were at the time of the grant in actual use. But they must have been attached to the lands conveyed as a matter of right. An easement will not pass, unless legally appurtenant to the land in the hands of the grantor. Land will not pass as incident or appurtenant to land; nor does a deed of land convey to the purchaser title to timber cut and lying on the ground. § 2289. Right of Owner of Soil to Full Dominion over It, above and below. The owner of land has a right to the exclusive dominion over it, above and below. He is entitled to all the minerals beneath it, the water which is in it, and everything in fact in the soil the surface of which is his. So, too, he has a right to everything above it, cujus est solum, ejus est usque ad cœlum. Therefore § 2290. Things Overhanging One's Land. no one has a right to make any erection on his land which may project over the land of his neighbor, and to do so constitutes a nuisance, for which an action will lie without proof of any special damage.10 Thus a bay-window 1 Simmons v. Cloonan, 81 N. Y. 559. 2 White v. Flannigin, 1 Md. 525; 54 Am. Dec. 669; Moale v. Baltimore, 7 Md. 314; 61 Am. Dec. 277. 3 Simmons v. Cloonan, 81 N. Y. 557; Butterworth v. Crawford, 46 N. Y. 349; 7 Am. Rep. 352. Simmons v. Cloonan, 81 N. Y. 557. 5 Green v. Collins, 86 N. Y. 246; 40 Am. Rep. 531. 6 Spalding v. Abbot, 55 N. H. 423; Jackson v. Hathaway, 15 Johns. 447; 8 Am. Dec. 263. 7 Van O'Linda v. Lothrop, 21 Pick. 292; 32 Am. Dec. 261; St. Louis Bridge Co. v. Curtis, 103 Ill. 410. 8 Jenkins v. Lykes, 19 Fla. 148. Marvin v. Brewster Iron Co., 55 N. Y. 528; 14 Am. Rep. 322; Chasemore v. Richards, 2 Hurl. & N. 168. 10 Tucker v. Newman, 11 Ad. & E. 40; Reynolds v. Clarke, 1 Strange, 634; Aiken v. Benedict, 39 Barb. 400; Fay v. Prentice, 14 L. J., N. S., 298, the court saying, among other things, that "in a declaration for an injury for the that projects, a cornice, stoop, portico, or anything that may be regarded as an invasion in any degree interfering with the rights of the owner of the soil, may be regarded as a nuisance, and actionable to the same extent as though it was an actual invasion of the soil. A brick wall projecting over an adjoining lot is a nuisance, without any reference to the question whether it is safe and secure or not. But though an action for a nuisance will lie, an action of ejectment will not; nor will trespass. The party injured may at his election cut off all that portion. of the eaves or other projection over his land, and thus of his own motion abate the nuisance; or he may bring his action for the damages and also for an abatement of the nuisance. So an insecure building allowed to stand near another's property is a nuisance. 3 § 2291. Trees Overhanging Another's Land. — If the branches of trees growing on one person's land overhang the land of his neighbor, this is a nuisance. The latter may sue for damage caused thereby, or he may abate the nuisance himself by cutting off the branches which overhang to the extent that they overhang his land. In Du erection of a building by an adjoining land-owner so that its eaves project over the land of another, it need not be stated that any special damage has been done; for it is an injury to a right, and the law will presume that rain will fall, and after the lapse of a reasonable time will presume that it has fallen. This was an action on the case for erecting a house with a cornice projecting over the lands of the plaintiff by means of which quantities of rain fell from the cornice upon the plaintiff's garden and did damage, and by reason of which the plaintiff had been greatly annoyed and incommoded in the use and possession of his premises. It was held by the court that the projection in itself was a nuisance from which the law inferred a damage, and that the plaintiff could maintain his action in respect to the projection alone, even though no rain had fallen, and that the plaintiff was not confined to damage from the rain." 1 Wood on Nuisances, 112; Com. v. Blaisdell, 107 Mass. 234; Com. v. McDonald, 16 Serg. & R. 390; Grove v. Fort Wayne, 45 Ind. 429; 15 Am. Rep. 262; Jenks v. Williams, 115 Mass. 217. Meyer v. Metzler, 51 Cal. 142. Aiken v. Benedict, 39 Barb. 400. But see Sherry v. Frecking, 4 Duer, 452. Reynolds v. Clark, 2 Ld. Raym. 1399. 5 Wood on Nuisances, 109; Shipley v. Fifty Associates, 106 Mass. 194; 8 Am. Rep. 318; Bellows v. Sackett, 15 Barb. 96. 6 Benson v. Saurez, 28 How. Pr. 511; Ferguson v. Selma, 43 Ala. 398. 7 Wood on Nuisances, 113. bois v. Beaver1 it is said: "Different opinions have been held as to the rights of the owners of adjoining estates in trees planted, and the bodies of which are wholly upon one, while the roots extend and grow into the other; some holding that, in such cases, the tree, by reason of the nourishment derived from both estates, becomes the joint property of the owners of such estates; while others, with better reasons, as it seems to me, hold that the tree is wholly the property of him upon whose land the trunk stands."3 Where the trunk is on the boundary line, the tree belongs to the adjoining proprietors as tenants in common.1 If the branches of a fruit-tree which grows on the land of A overhang the land of B, B has no property in the fruit; neither can A enter upon B's land to pluck it; but A owns the fruit, and is entitled to it, if he can get it without trespassing upon B.5 ILLUSTRATIONS. -The branches of a tree not poisonous, upon the defendant's land, overhung the plaintiff's garden from five to fifteen feet. It was alleged that in consequence thereof the plaintiff's garden was injured. The only proof was, that the plaintiff had some berry-bushes on his side of the line, and he thought there was a difference between those in the shade and those not. Held, that the action could not be maintained, as no damage was shown. The plaintiff's remedy was by clipping the branches: Countryman v. Lighthill, 24 Hun, 405. § 2292. What is Conveyed by Particular Language, Words, and Phrases. -No particular form of words is necessary to convey realty; any words denoting an intent to transfer the title are sufficient." A conveyance purporting to convey a greater estate than the grantor has passes the estate he possesses." 1 25 N. Y. 123; 82 Am. Dec. 326. 2 Waterman v. Soper, 1 Ld. Raym. 737; Griffin v. Bixby, 12 N. H. 454; 37 Am. Dec. 225. 3 Holder v. Coates, 1 Moody & M. 112; Lyman v. Hale, 11 Conn. 177; 27 Am. Dec. 728; Masters v. Pollie, 2 Rolle, 141; Crabbe on Real Property, sec. 96; Skinner v. Wilder, 38 Vt. 115; 88 Am. Dec. 645; Hoffman v. Armstrong, 48 N. Y. 203; 8 Am. Rep. 537. § 2293. Reservations and Exceptions." 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 taken out or excluded from the grant; and whatever is thus excluded remains in him as of his former right or title, because it is not granted. A reservation or implied grant vests in the grantor in the deed some new right or interest not before existing in him." If land is, conveyed in general terms, an exception of a specific part, as the trees or woods, or the minerals, or an easement, is valid, and not repugnant to the grant. But if the part excepted was specifically granted, as if a person grants ten acres in specific terms, excepting one of them, the exception is repugnant to the grant, and void.3 A reservation may be made in the premises, the clause of grant, the habendum, or reddendum. A reservation is for the benefit of the grantor and his successors, and not for that of persons claiming title to property not conveyed by the deed, and derived from other sources. A reservation cannot be made to a stranger, nor by parol. The same rules of construction apply to a reservation as to an express grant. Therefore a reservation may be void for uncertainty. So where a deed excepts out of the conveyance one acre of land, and there is nothing in the exception or evidence to locate it upon any particular part of Ashcroft v. R. R. Co., 126 Mass. 196; 30 Am. Rep. 672; Roberts v. Robertson, 53 Vt. 690; 38 Am. Rep. 710; Eiseley v. Spooner, 23 Neb. 470; 8 Am. St. Rep. 128. * Boone on Real Property, sec. 303; Pike v. Munroe, 36 Me. 309; 58 Am. Dec. 751. 34 Kent's Com. 468. But this technical rule is rejected in Minnesota. Thus where a deed conveyed "all that piece or parcel of land described as follows, to wit, being the northeast quarter of section 32, except forty acres in the southeast corner of the northeast quarter of said section 32," it was held that the deed did not the tract, the exception is void for uncertainty, and the grantee takes the entire tract. Where there is a reservation or exception in a deed, it is to be construed most strongly against the grantor, and when the grantor asserts a reservation, the onus of showing it is upon him. But if the intention of the parties can be fairly ascertained from the instrument, such intention will govern.3 The invalidity of an attempted reservation for uncertainty does not necessarily vitiate the grant. An exception out of a grant includes all that is necessary to the enjoyment of the thing excepted. The words "right to use and occupy," in the reservation in a deed, import a general right in the grantors to use and occupy, either by themselves or others, limited only by the implied legal duty to occupy in a prudent manner. A deed of land to A, her heirs and assigns forever, in consideration of love, good-will, and affection, reserving the use of the lands during the grantor's natural life, conveys the fee in præsenti, subject to the life estate. A grant of land and all the buildings thereon "except the brick factory" does not pass the land on which the factory stands, nor the water privilege appurtenant thereto.8 ILLUSTRATIONS. A warranty deed was conditioned for a reservation of all the grantor's right, title, and interest for his life. Held, valid: Graves v. Atwood, 52 Conn. 512; 52 Am. Rep. 610. A deed reserved the right to cut and remove timber, "at any and all times, also the right of ingress and egress at any and all times, for the space of twelve years from the date above written, for the purpose so as aforesaid." Held, that the right of entry and of property ceases with the twelve years: 1 Mooney v. Cooledge, 30 Ark. 640. Grubb v. Grubb, 101 Pa. St. 11; Jackson v. Hudson, 3 Johns. 375; 3 Am. Dec. 500; Jackson v. Gardiner, 8 Johns. 394; Wiley v. Sirdorus, 41 Iowa, 224. 3 Wiley v. Sirdorus, 41 Iowa, 224. Baldwin v. Winslow, 2 Minn. 213. Allen v. Scott, 21 Pick. 25; 32 Am. Dec. 238; Rich v. Zeilsdorff, 22 6 Cooney v. Hayes, 40 Vt. 478; 94 Am. Dec. 425; Benhain v. Minor, 38 Conn. 252. Cribb v. Rogers, 12 S. C. 564; 32 Am. Rep. 511. Allen v. Scott, 21 Pick. 25; 32 Am. Dec. 238. |