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Chaffee did not get possession of these plied reservation. On this precise question
buildings until that time. Immediately the authorities are in conflict. Courts of
thereafter he began tearing down the old high standing assert that the rule regarding
buildings to prepare the lot for an opera implied grants and implied reservation of
house. The chancellor reports that access "visible servitudes" is reciprocal, and that
to the rear of the Howley block over the it applies with equal force and in like cir-
right of way to the Chaffee lot, and thence cumstances to both grants and reservations.
around the corner of the south barn as But upon a careful consideration of the
described, is "reasonably necessary for the whole subject, studied in the light of the
full, convenient, and comfortable use and many cases in which it is discussed, we are
enjoyment of said block, and would add to convinced that there is a clear distinction
the value of said block, and would material- between implied grants and implied reserva-
ly benefit it."
tions, and that this distinction is well
founded in principle and well supported by
authority. It is apparent that no question
of public policy is here involved, as we have
seen is the case where a way of necessity is
involved. To say that a grantor reserves to
himself something out of the property
granted, wholly by implication, not only of-
fends the rule that one shall not derogate
from his own grant, but conflicts with the
grantor's language in the conveyance, which
by the rule is to be taken against him, and
is wholly inconsistent with the theory on
which our registry laws are based. If such
an illogical result is to follow an absolute
grant, it must be by virtue of some legal
rule of compelling force.

The decree below was for the orator and against Chaffee only. The latter appealed. The defendants treat the orator's suit as a claim of a way of necessity, so-called, and rely upon Dee v. King, 73 Vt. 375, 50 Atl. 1109, wherein it is said that such a way is called into existence in cases of necessity only, and that mere convenience, however great, will not suffice.

For present purposes we may assume that the rule regulating such ways is correctly stated in Willey v. Thwing, 68 Vt. 128, 34 Atl. 428, in the following quotation: "If A conveys land to B, to which B can have access only by passing over other land of A, a way of necessity passes by the grant. If A conveys land to B, leaving other land of A, to which he can have access only by passing over the land granted, a way of necessity is reserved in the grant."

It thus appears that in the matter of these ways implied grants and implied reservations stand alike. The foundation of this rule regarding ways of necessity is said to be a fiction of law by which a grant or reservation is implied to meet a special emergency, on grounds of public policy, in order that no land be left inaccessible for the purposes of cultivation. Buss v. Dyer, 125 Mass. 291. It is apparent that the case in hand has no standing under this rule, for the orator's land fronts on one of the principal streets of the city, and is, of course, accessible therefrom. The claim of the orator is in fact founded upon a different, though somewhat related, ground, a ground sometimes spoken of in the books as the doctrine of "visible servitudes," sometimes as the doctrine of "easements arising from severance with apparent benefit existing," and sometimes as the doctrine of "quasi easements." Much confusion of judicial thought has resulted from a failure to distinguish between ways of necessity and ways arising under this latter doctrine,-a confusion, it must be admitted, from which our own cases have not wholly escaped.

With the character and extent of implied grants, we now have nothing to do. We are here only concerned with determining the circumstances which will give rise to an im

The correct rule is, we think, that where, as here, one grants a parcel of land by metes and bounds, by a deed containing full covenants of warranty and without any express reservation, there can be no reservation by implication, unless the easement claimed is one of "strict necessity," within the meaning of that term as explained in Dee v. King, supra.

While some of the older authorities attach to an implied reservation a less strict requirement of necessity than this, the decided tendency of the courts is toward the more logical and sensible rule above stated.

Thus, after some divergence of judicial opinion and consequent uncertainty in the law, strict necessity has come to be the settled rule of implied reservations in England. Suffield v. Brown, 4 De. G. J. & S. 185, 3 New Reports, 340, 33 L. J. Ch. N. S. 249, 10 Jur. N. S. 111, 9 L. T. N. S. 627, 12 Week. Rep. 356; Wheeldon v. Burrows, L. R. 12 Ch. Div. 31, 48 L. J. Ch. N. S. 853, 41 L. T. N. S. 327, 28 Week. Rep. 196; Crossley v. Lightowler, L. R. 2 Ch. 478, 36 L. J. Ch. N. S. 584, 16 L. T. N. S. 438, 15 Week. Rep. 801.

So, too, in New York, though it was formerly thought (Lampman v. Milks, 21 N. Y. 505) that the rule of visible servitudes worked both ways, the distinction between implied grants and implied reservations is now fully established, and it is held that an implied reservation only arises when the easement claimed is necessary in the strict

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sense of the term. Hill v. Bernheimer, 78 | but has existed almost as far back as the Misc. 472, 140 N. Y. Supp. 35; Lathrop v. Lytle, 84 Misc. 161, 145 N. Y. Supp. 906; Wells v. Garbutt, 132 N. Y. 430, 30 N. E. 978; Paine v. Chandler, 134 N. Y. 385, 19 L.R.A. 99, 32 N. E. 18.

It was said in Carbrey v. Willis, 7 Allen, 364, 83 Am. Dec. 688, that "where there is a grant of land by metes and bounds, without express reservation and with full covenants of warranty against encumbrances, we think there is no just reason for holding that there can be any reservation by implication, unless the easement is strictly one of necessity. Where the easement is only one of existing use and great convenience, but for which a substitute can be furnished by reasonable labor and expense, the grantor may certainly cut himself off from it by his deed, if such is the intention of the parties. And it is difficult to see how such an intention could be more clearly and distinctly intimated than by such a deed and warranty." It should be noted in this connection that the Massachusetts court applies the rule of strict necessity to grants as well as reservations.

Buss v. Dyer, 125 Mass. 289.

The Massachusetts rule prevails in Maine. In Warren v. Blake, 54 Me. 276, 89 Am. Dec. 748, the court quotes and adopts the rule of Carbrey v. Willis, as above, suggesting that to hold otherwise would open the door "to doubt and uncertainty, to the disturbance and questioning of titles, and to controversies as to matters of fact outside of the language or boundaries of the deed." This holding was approved as settled law in Stevens v. Orr, 69 Me. 323. See also Stillwell v. Foster, 80 Me. 333, 14 Atl. 731.

law upon the subject can be traced," reaches the conclusion that no implied right in the alley was reserved in the first sale, as use of the alley was not legally necessary to the other house. This rule is approved in Burns v. Gallagher, 62 Md. 462; Jay v. Michael, 92 Md. 210, 48 Atl. 61, and Mancuso v. Riddlemoser Co. 117 Md. 53, 82 Atl. 1051, Ann. Cas. 1914A, 84.

In Cherry v. Brizzolara, 89 Ark. 309, 21 L.R.A. (N.S.) 508, 116 S. W. 668, the distinction is recognized and the rule stated thus: "But there is a marked difference between an implied grant and an implied res ervation of an easement in the conveyance of the dominant and servient estate. Where a man grants the dominant estate, he grants with it everything necessary to its enjoyment; and by the grant there passes by implication to the grantee all those continuous and apparent easements which are necessary to the reasonable enjoyment of the property granted, and which have been, and are at the time of the grant, used by the owner of the entirety for the benefit of the part granted.

But where the owner has sold and granted the servient estate and attempts to retain by implied reservation the easement for the estate he retains, the matter stands on a different footing. The grant is taken most strongly against the grantor. And so the [great] weight of authority is that where there is a grant of land with full covenants of warranty, and without express reservation of easement, there can be no reservation by implication, unless the easement is strictly one of absolute necessity."

Other cases recognizing this distinction between grants and reservations are Walker v. Clifford, 128 Ala. 67, 86 Am. St. Rep. 74, 29 So. 588; Brown v. Fuller, 165 Mich. 162, 33 L.R.A. (N.S.) 459, 130 N. W. 621, Ann. Cas. 1912C, 853; Toothe v. Bryce, 50 N. J. Eq. 589, 25 Atl. 182; Denman v. Mentz, 63 N. J. Eq. 613, 52 Atl. 1117; Wilson v. Riggs, 27 App. D. C. 550; Crosland v. Rogers, 32 S. C. 130, 10 S. E. 874; Scott v. Beutel, 23 Gratt. 1.

The doctrine of visible servitudes is not new in this state. It was in Harwood v. Benton, 32 Vt. 724, that it was first recog

Mitchell v. Seipel, 53 Md. 251, 36 Am. Rep. 404, is a well-considered and instructive case in point. The owner of a lot built two houses on it. One was 15 feet wide; the other was 12 feet wide on the ground, but 15 feet wide above the first story. This left between the houses an alley 2 feet wide, extending from the street to the back yards of the houses. Above the alley the timbers of the narrow house extended across the alley and rested on the wall of the other house. The alley was used as a common passageway by the occupants of both houses. The narrow house was sold by a deed which in-nized by this court. Judge Barrett therein cluded the alley, but without any reserva- calls attention to the rule that, while an tion of any right therein. Then the other owner of a parcel of land could not have an house was sold by a deed embracing no part easement in one part in favor of another of the alley. The court reviews the cases, part thereof, yet, by force of his ownership, English and American, and, “being satisfied he could use it as he pleased and impress it the distinction so clearly drawn in those de- with such conditions as he chose, which upon cisions between what has been called an im- severance would survive. And it was acplied grant and what has been attempted to cordingly there held that the parcel of land be established under the name of an implied sold was subject to the seller's right to reservation is not only founded in reason, maintain his mill pond on the part reserved,

though he thereby interfered with the full strict necessity. Both doctrines herein disenjoyment of the premises conveyed.

The subject has been before the court in various cases since, including Coolidge v. Hager, 43 Vt. 9, Am. Rep. 256; Goodall v. Godfrey, 53 Vt. 219, 38 Am. Rep. 671; Wiswell v. Minogue, 57 Vt. 616; Willey v. Thwing, 68 Vt. 128, 34 Atl. 428; McElroy v. McLeay, 71 Vt. 396, 45 Atl. 898; and Dee v. King, 77 Vt. 230, 68 L.R.A. 860, 59 Atl. 839. Of these cases Harwood v. Benton and Wiswell v. Minogue and Willey v. Thwing were, alone, cases of implied reservations, which need be noticed in this discussion. It was said in the former, in speaking of Gale & Whatley on Easements, that the learned authors show that in this class of cases: "While the law will make all necessary implications to prevent the grantor from derogating from his own grant, it will reciprocally and equally make like implications to prevent the grantor from being shorn of his just rights in reference to the property

which he retains."

So far as the opinion may be taken as an indorsement of this statement, it was a pure dictum, for it was wholly unnecessary to the decision. The case then before the court was manifestly one in which the easement reserved was one of strict necessity,-for a mill without a mill pond would be wholly useless, and no substitute could be provided. So this statement that the law would reciprocally and equally imply a reservation in favor of the grantor was outside the decision.

cussed were referred to in the opinion, but no attempt was made to define the degree of necessity required in visible servitudes reserved by implication.

We find, then, no binding precedent in this state to embarrass us in the adoption of the rule of the best considered cases hereinbefore stated. Indeed, the very distinction which we now adopt was referred to in Goodall v. Godfrey, 53 Vt. 219, 38 Am. Rep. 671, with a very broad intimation that it was sound in law. For Judge Veazey said in the opinion that if the owner of the property had in his lifetime divided it, and then "sold the east and west tenements to the plaintiff without reservation of a right of way for the middle tenement, then it might be argued, upon strong authority, that he did not retain such right of way by implication. Although it may have been held that there is no distinction in legal effect between what has been called an implied grant and an implied reservation, such a distinction has been recognized in many well-considered cases. This distinction is only alluded to, not passed upon."

It is a fair assumption from this language that the court did not then understand that the distinction had ever been passed upon in this state up to that time.

In this state of the law of the subject in this jurisdiction, we do not hesitate to put ourselves in line with the modern holdings.

That the way here in question is not necessary to the Howley block in the strict sense of the term is apparent. The finding is that it "is reasonably necessary for the full, convenient, and comfortable use and enjoyment" of the block. This is not enough under the rule herein adopted. It is appar

Again, in Wiswell v. Minogue, it is said that "it is now universally recognized that, from the necessity of a right of way to the reasonable use and enjoyment of land granted or reserved, is to be found an implied grant or reservation of such right, inent that the way is highly convenient, but it the absence of some express negation thereof in the deed."

Here again the court, as the opinion says, was discussing a case wherein the easements were of strict necessity. When the farm was first sold a landlocked quarry was reserved, -a typical case of a way of necessity by implied reservation. When the 3-acre piece was conveyed to the quarry owner, the easement claimed was not reserved, but granted. And this, too, was a plain way of necessity, as the case shows that the quarry owner, even after the purchase of the 33-acre piece, had no other way out to the highway except over the way claimed. So no reference to the doctrine of visible servitudes was required, and the quotation above was wholly obiter.

Willey v. Thwing was apparently a way of

is not indispensable. For aught that appears a substitute through the stores can be prepared without unreasonable trouble or expense. It may be safely said that it appears that this can be done. At any rate, whatever inconvenience may result-whatever detriment to the Howley block may follow this decision,-it is attributable to the deliberate act of Mrs. Richardson, who could have (had she so desired or intended) averted it all by a stroke of her pen when she deeded to Chaffee. In reaching this result, we make no reference to several special circumstances tending strongly to show that Mrs. Richardson had, in fact, no idea that this way was to be kept open after the Chaffee deed was given.

Decree reversed, and cause remanded, with directions to dismiss the bill.

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With the exception of the Texas cases which are governed by special statute, the cases in point divide themselves into two classes, namely, those in which, as in STATE v. CORCORAN, the decision turns on whether there was an unlimited and unrestricted right of entry, and those in which the decision turns on the intent of the employee at the time of entry, the entry itself being with right.

In Pointer v. State, 148 Ala. 676, 41 So. 929, holding that a servant in a hotel who has a right of access to a pantry in the performance of his menial duties as servant is nevertheless guilty of burglary if, after the pantry is locked for the night, he enters the same and steals provisions therefrom, the entry, in view of the time it was made, was apparently wrongful irrespective of its purpose.

That was also apparently true of Hild v. State, 67 Ala. 39, holding that a servant in charge of a house during his employer's absence is guilty of burglary if without right he enters a closed room and steals therefrom.

In Rex v. Gray, 1 Strange, 481, it was held to be burglary where a servant with design to commit rape opened the door of his mistress's room, which was fastened with a bolt.

So, also, for a servant at night to unlatch the door of his master's or mistress's bedroom for purpose of committing murder. Edmonds Case, Hutton, 20 J. Kelyng, 67; United States v. Bowen, 4 Cranch, 604, Fed. Cas. No. 14,629.

In STATE V. CORCORAN the court seems to have assumed, although it was not neces sary to pass upon the point, that if the defendant had had the right to enter the store at any time of the day or night, he would not have been guilty of burglary even if the entry upon the particular occasion was with the preconceived intention to steal. And this seems to have been the view of Sir Mathew Hale, who said that if the servant unlatches a door, or turns a key in a door, in the house, and steals goods out of that room, the opening of the door in

the building, and entered the building at an unusual hour and took articles therefrom at a time different from that charged in the indictment.

Burglary opening building with key lawfully acquired.

2. An employee's opening a building at a time when his duties did not require him to do so, by means of a key furnished him by the employer for the limited purpose of opening the store for business in the morning, followed by his taking property of his employer therefrom with intent to convert it to his own use, is a sufficient breaking to constitute burglary.

(October 8, 1914.)

this manner is within his trust, and so no breaking of the house, and therefore not within the law of burglary; but if the servant breaks open a door, whether outward or inward (as for the purpose a closet, study, or counting house), and steals goods, this is a robbery and breaking the house,-such opening not being within his trust. 2 Hale, P. C. 354. But it is pointed out in Russell on Crimes, vol. 2, p. 10, note, that this view was in conflict with the Edmonds Case, supra.

But in State v. Howard, 64 S. C. 344, 58 L.R.A. 685, 92 Am. St. Rep. 804, 43 S. E. 173, it was held that a servant having a right to lodge in his master's house is guilty of burglary if he opens a closed door or raises a sash and enters the building, not for the purpose of using the same as a lodging house, but with intent to steal his master's goods. The court said: "A servant's right to enter his master's dwelling depends upon the purpose with which he enters. If he enters pursuant to the trust of his employment, being rightfully in, if he then conceives the felonious purpose, and attempts to carry it out without breaking any inner door, it is not burglary, for there is no breaking and entering with felonious intent; but if, being out of the dwelling, he does that which would constitute a breaking and entering in a stranger, and does it with the intent to steal or commit a felony, or if, being in without breaking, he breaks an inner door with such purpose, then he commits burglary, for the entrance for such purpose is in violation of his trust and employment."

So, in Lowder v. State, 63 Ala. 143, 35 Am. Rep. 9, the court holds that an office boy and servant of an attorney who goes into the office at nighttime for the purpose of going to bed, and has the right to do so from his employers, or is accustomed to sleep there at night with their knowledge, and without objection, is not guilty of burglary though, after entering the office for that purpose only, he forms the desire to steal his employer's money, which is in a bedroom off the office; it is clearly implied that he would be guilty if the entry were with the preconceived intent to steal, although not otherwise wrongful.

In Colbert v. State, 91 Ga. 705, 17 S. E.

A

PPEAL by defendant from a judgment against the person accused of a particular of the Superior Court for Spokane crime, is not admissible. County convicting him of burglary in the second degree. Affirmed.

The facts are stated in the opinion.

State v. Cottrell, 56 Wash. 544, 106 Pac. 179; Lowman v. State, 109 Ga. 501, 34 S. E. 1019, 13 Am. Crim. Rep. 389; People v.

Mr. George H. Armitage, with Mr. W. Geyer, 196 N. Y. 364, 90 N. E. 48; Jordan C. Donovan, for appellant:

Evidence of other distinct criminal acts cannot be introduced against the accused to prove him guilty of the crime on the charge of which he is on trial.

State v. Bokien, 14 Wash. 403, 44 Pac. 889; State v. Oppenheimer, 41 Wash. 630, 84 Pac. 588; Collier v. State, - Miss. 64 So. 373; Lightfoot v. People, 16 Mich. 507. Evidence of other offenses not amounting to crimes and misdemeanors, the admission of which is calculated to prejudice the jury 840, where a servant unlocked a door of a room and took certain articles therefrom, the court said that if the intent to steal was formed after he entered, his offense was only larceny from the house; but if the intent to steal was formed before entering, his offense was burglary. It is not clear, however, but that the latter alternative was upon the hypothesis that the entry was wrongful irrespective of its purpose. As stated, the Texas cases are governed by a statute that provides that an entry into a house for the purpose of committing a theft, unless the same is effected by actual breaking, is not burglary when the same is done by a domestic servant or other inhabitant of such house, and the question involved generally is whether one is a domestic servant or inhabitant within the meaning of the statute.

In construing the terms "domestic servant or other inhabitant of such house," the court in Wakefield v. State, 41 Tex. 556, said that they did not extend to a servant whose employment is out of doors, and not in the house, or to a lodger or visitor, as distinguished from an inhabitant, and they do not therefore come within the classification of a domestic servant or an inhabitant of the house.

So, an entry into a house and a theft therefrom by a servant of a guest of a house, who had access to the house for the purpose of getting property of his master, constitute burglary. Ibid.

And a farm hand who does not sleep or eat in his employer's house, and who has only occasional duties to perform in the house, such as making fires and carrying water, is not a domestic servant of the owner of the house so as to require that there shall be an actual breaking to constitute burglary by such a one, and so he will be guilty of burglary if he enters the house not in the performance of such occasional duties and steals articles therefrom. Waterhouse v. State, 21 Tex. App. 663, 2 S. W. 889.

So, also, a servant of a hotel whose sole duties are to scour the floors of the corridors of the hotel and clean the spittoons

v. Osgood, 109 Mass. 457, 12 Am. Rep. 731; State v. Gottfreedson, 24 Wash. 398, 64 Pac. 523; Underhill, Crim. Ev. 8th ed. § 88, p. 160.

A motive for committing a crime is admissible only where it is necessary to prove the defendant's connection with the commission of a crime apparently committed by someone by proof of the corpus delicti.

Shaffner v. Com. 72 Pa. 60, 13 Am. Rep. 649; People v. Molineux, 62 L.R.A. 193, and note, 168 N. Y. 264, 61 N. E. 286.

is not the servant of a saloon in the same building and under the same management, and in which he performs no duty whatever, so as to necessitate an actual breaking in order to constitute burglary where an entry is made by a domestic servant, and so such a servant who enters the saloon and steals therefrom is guilty of burglary, although actual force is not used, but entry is made by means of unlocking the door. Jackson v. State, 43 Tex. Crim. Rep. 260, 64 S. W. 864.

And a lifting of the latch and opening a door do not constitute an actual breaking, within the meaning of the statute. Neiderluck v. State, 23 Tex. App. 38, 3 S. W. 573.

But where a domestic servant, in pursuance of a conspiracy with others who are not servants, lifts the latch and opens the door and enters the house, he is guilty of burglary though the breaking be not actual. Ibid.

Entry of place open for business.

Under a California statute which provides that "every person who enters any house, room, store, with intent to commit grand or petit larceny or any felony, is guilty of burglary," one who with intent to steal enters a store is guilty of burglary though it be during business hours. People v. Brittain, 142 Cal. 8, 100 Am. St. Rep. 95, 75 Pac. 314; People v. Barry, 94 Cal. 481, 29 Pac. 1026.

It was contended in the Barry Case that a store during business hours is a public place, and that the defendant as one of the public had a legal right to be there or rather to enter there; that the proprietors were doing business with the general public; the public were invited to enter, and that therefore the defendant entered under an invitation of the owners, and that consequently his entry was lawful, and therefore there could be no burglary when there is a lawful entry. But the court said that to this line of reasoning it could only say that a party who enters with the intention to commit a felony enters without

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