TRADE SECRET-DISCLOSURE BY SERVANT— INJUNCTION CONTRACT. The case of C. & W. Thum Co. v. Tloczynski, recently decided by the Supreme Court of Michigan, involves a question of somewhat rare interest, viz: whether an employee when his employment terminates may make use of secrets confided to him by his employer necessary to be confided to him in the conduct of the business, when it is understood and agreed that he shall not make use of the secret knowledge so imparted to the detriment of the employer, and if he attempts so to do may be restrained by writ of injunction. The exact holding of the court on the subject, is that after his employment has terminated, a servant cannot make use of or divulge a trade secret necessarily confided to him by the master in the conduct of the business, where it was agreed, as a condition of the employment, that he should not use the secret to the master's detriment, or disclose it. This is so, although the contract did not, in terms, so provide, where such a condition is clearly implied by the oral statements of the parties, taken in connection with the surrounding facts and circumstances. It is also held that a condition of a contract of employment that the servant will never make use of or divulge trade secrets necessarily confided to him by the master in the conduct of the business is not invalid as being in restraint of trade. And that when one discovers and keeps secret a process of manufacture, whether or not a proper subject for a patent, he has a property therein that equity will protect by injunction against one who, in violation of contract, and in breach of confidence, undertakes to apply the secret to his own use, or to disclose it to a third person. The following from the exhaustive opinion of the court discloses the grounds upon which the court proceeded and cites the authorities: It is said by counsel that the remedy by injunction will not be granted in such a case as this, where, from the nature of the subject, there could be no decree for a specific performance; citing Newberry v. James, 2 Mer. 446; Williams v. Williams, 3 Mer. 157; Kimberley v. Jennings, 6 Sim. 340. It is also said that a decree for a specific perform. ance will not be granted where the court has not the means of seeing that its decree shall be carried out; citing Voorhies v. Frisbie, 25 Mich. 482; Blanchard v. Railway Co., 31 Mich. 43; Bumpus v. Bumpus, 53 Mich. 346, 19 N. W. Rep. 29. An examination of the Michigan cases cited shows that in those cases the court was asked to decree the performance of an affirmative act, where the agreement was of an indefinite and uncertain character, instead of being asked to enforce a definite agreement not to do an act. As to the other cases, if they tend to sustain the contention of the defendant, they are contrary to the great weight of su thority. Is it not true that, if one discovers a process of manufacture or an invention which is of use to individuals and the community, he has a property right in it, and that an agreement which must be respected may be made in relation to keeping the process of manufacture or the invention a secret between the discoverer or owner and an employee, which agreement is made one of the conditions of the employ ment? It has been said by a very able justice: "It" one invents or discovers and keeps secret a process of manufacture, whether a proper subject for a patent or not, he has not, indeed, an exclusive right to it as against the public, or against those who, in good faith. acquire knowledge of it; but he has a property in it which a court of chancery will protect against one who, in violation of contract and breach of confidence. undertakes to apply it to his own use, or to disclose it to third persons. Peabody v. Norfolk, 98 Mass, 452." And, again, Mr. Justice Gray, who delivers the opin ion, says: "In this court it is settled that a secret ar: is a legal subject of property, and that a bond for the conveyance of the exclusive right to it is not open to the objection of being in restraint of trade, but may be enforced by action at law, and requires the obligor not to divulge the secret to any other person. Vickery v. Welch, 19 Pick. 523; Taylor v. Blanchard, 13 Allen, 373, 374. In Jarvis v. Peck, 10 Paige, 118, such a boud was held valid in equity." In Salomon v. Hertz, N. J. Eq. 400, 2 Atl. Rep. 379, the court adopts the language of Justice Gray, and hold that there is property in a secret process of manufacture. Hard ware Co. v. Waibel (S. D.), 47 N. W. Rep. 814. ness. A recent and instructive case is that of Eastman Co. v. Reichenbach (Sup.), 20 N. Y. Supp. 110. "To briefly summarize, then, the established facts of this case, it appears that the plaintiff is the owner of va uable trade secrets, which were either discovered by one or more of the defendants, or necessarily disclosed to them, while occupying a confidential relation toward the plaintiff; that as to such trade secrets as were discovered by either Reichenbach or Passavant, they have undertaken and agreed to give plaintiff the exclusive property in and control over the same; a that, in violation of this agreement, they are now pre posing to make use of them, or some of them, in such a manner as to materially injure the plaintiff's bust With these facts established, the application of the legal principles which must govern the dispost tion of the case does not appear to be a very formic able undertaking. It may be safely assumed at the outset, I think, that whatever remedy plaintiff may have does not reside in a court of law. The very ture of the case, the peculiar character of the injury liable to be inflicted, and the incalculable damages which may possibly result, all show most conclusively that legal relief is totally inadequate for plaintif protection, and that its only resort must be to a court of equity. The learned counsel for defendants b contended, with all the adroitness and skill at b command, which is but another way of saying that such contention has been put forth with all possible adroitness and skill, that this case is not one of which a court of equity can take jurisdiction; and several authorities of both English and American courts are cited in support of this claim. I am constrained, bow ever, to hold that the weight of authority is opposed to his view of the law. The question presented is interesting one, and would justify a somewhat analyt ical review of the cases which bear upon either aspect of it did time permit; but, for the purposes of this adjudication, it will be necessary to advert to such only as are deemed conclusive upon this court. In Morison v. Moat, 9 Hare, 241, which is an English case, it was held that an injunction would issue to restrain the use of a secret in the compounding of a medicine not being the subject of a patent, and to restrain the sale of such medicine by a party who ac quired knowledge of the secret in violation of the contract of the party by whom it was communicated, and in breach of trust and confidence. An appeal was taken from the decision of the vice chancellor, and in 1852 the case was affirmed by the court of chancery, and it was there held that 'there is no doubt whatever that where a party who has a secret in trade employs persons under contract, either express or implied, or under duty, express or implied, those persons cannot gain knowledge of that secret, and then set it up against their employers.' Morison v. Moat, 21 Law J. Ch. 248. In 1868 the Supreme Court of Massachusetts recognized and followed the authority of Morison v. Moat, and in the opinion of Gray, J., the law is thus stated: If a party 'invents or discovers and keeps secret a process of manufacture, whether a proper subject for a patent or not, he has not indeed an exclusive right to it as against the public, or against those who in good faith acquire knowledge of it, but he has property in it which a court of chancery will protect against one who, in violation of contract and breach of confidence, undertakes to apply it to his own use, or to disclose it to a third person. The jurisdiction in equity to interfere by injunction to prevent such a breach of trust when the injury would be irreparable fand the remedy at law inadequate, is well established by authority.' Peabody v. Norfolk, 98 Mass. 452. The language above quoted was cited with approval in Salomon v. Hertz, 40 N. J. Eq. 400, 2 Atl. Rep. 379, and it is almost identical with that employed by elementary writers of recognized standing in discussing the same question. Judge Story says: 'Courts of equity will restrain a party from making a disclosure of secrets communicated to him in the course of a confidential employment, and it matters not in such cases whether the secrets are secrets of trade or secrets of title, or any other secrets of the party important to its interest.' 2 Story, Eq. Jur. 952. See, also, 1 High. Inj. (2d Ed.) p. 15. The same doctrine has obtained in this State for at least half a century, and has been enunciated by a line of decisions which, with a single exception, is unbroken. Jarvis v. Peck, 10 Paige, 118; Hammer v. Barnes, 26 How. Prac. 174; Champlain v. Stoddart, 30 Hun, 300; Tabor v. Hoffman, 118 N. Y. 30, 22 N. E. Rep. 12. The Champlin Case was decided by the general term of this department. Smith, P. J., writing the opinion, in the course of which he takes occasion to say that 'a secret in trade is fully recognized as property in equity, the disclosure of which will be restrained by injunction.' By a careful reading of the various decisions upon this subject, it will be seen that some are made to depend upon a breach of an express contract between the parties, while others proceed upon the theory that where a confidential relation exists between two or more parties engaged in a business venture, the law raises an implied contract between them that the employee shall not divulge any trade secret imparte 1 to him or discovered by him in the course of his employment, and that a disclosure of such secrets, thus acquired, is a breach of trust, and a violation of good morals, to prevent which a court of equity should intervene. It should also be observed in this connection that the word 'property,' as applied to trade secrets and trade inventions, has its limitations; for it is undoubtedly true that when an article manufactured by some secret process, which is not the subject of a patent, is thrown upon the market, the whole world is at liberty to discover, if it can by any fair means, what the process is, and, when the discovery is thus made, to employ it in the manufacture of similar articles. In such a case the manufacturer's or inventor's property in his process is gone, but the authorities all hold that, while knowl. edge obtained in this manner is perfectly legitimate, that which is obtained by any breach of confidence cannot be sanctioned; and this distinction is quite forcibly presented in a recent decision of the court of appeals, to which the attention of this court has been directed by the supplemental orief of defendant's counsel. Judge Landon, in his opinion, speaking of the plaintiff's claim, says: 'His case is unlike those in which the injunctive process of the court is sought to restrain the disclosure of a secret or the publication of a letter which may prove injurious to business or character.' Bristol v. Society, 132 N. Y. 264-267, 30 N. E. Rep. 506. But without multiplying citations or prolonging consideration of the legal aspect of this case, it may be said, by way of conclusion, that the principle contended for by the plaintiff is not only abundantly supported by authority, but is likewise founded in good common sense, and is peculiarly applicable to the case in hand. Here is a party, which, by the expenditure of large sums of money, and the exercise of much skill and ingenuity, has built a large and prosperous business, the capital of which consists largely in certain inventions and discoveries made by its officers, servants and agents. The world at large knows nothing of these inventions and discoveries, because they are locked within the brains of those who conceived them. The defendants, who have been largely instrumental in perfecting them, while under both an express and implied contract to give plaintiff the benefit of their inventive genius, propose now to disregard their legal and moral obligations by creating a new establishment, where these inventions and discoveries may be employed to plaintiff's serious injury. This is not legitimate competition, which it is always the policy of the law to foster and encourage, but it is contra bonos mores, and constitutes a breach of trust, which a court of equity, should not tolerate." Fralich v. Despar (Pa. Sup.), 30 Atl. Rep. 521. It is argued in this case that there is no express contract shown, and that an implied contract is not such a one as will be enforced. We think the testimony discloses very clearly an express agreement wetween the employer and the employed, but, if it may be stated that the only agreement is an implied one, growing out of oral statements taken in connection with the facts and circumstances surrounding the business, the parties, and their acts, still, if it is clearly established by all that was said and done that the secrets confided to the defendant were not to be disclosed by him to others, and were not to be used by him except when he was in the employment of those who imparted to him the secret, or their legal representatives, and that was one of the conditions of his employment, we do not think it would make any difference in the principle involved. The knowledge came to him in the course of a confidential employ. ment, relying upon his using the knowledge only for the benefit of the employer. It is said by an eminent writer: "On the whole, the doctrine may be generally stated that wherever confidence is reposed, and one party has it in his power, in a secret manner, for his own advantage, to sacrifice those interests which he is bound to protect, he will not be permitted to hold any such advantage." Story, Eq. Jur. § 323. The same authority, when discussing the subject of what cases injunction will be issued in, says: "Upon similar grounds of irreparable mischief, courts of equity will restrain a party from making a disclosure of secrets communicated to him in the course of a confidential employment; and it matters not, in such cases, whether the secrets be secrets of trade, or secrets of title, or any other secrets of the party impor tant to his interests. Thus a party has been restrained from using the secret of compounding a medicine not protected by patent, when it appeared that the secret was imparted to him, to his own knowledge, in breach of faith or contract on the part of the persons communicating it." Story, Eq. Jur. § 952, and many cases there cited; 10 Am. & Eng. Enc. Law, 949; High, Inj. § 19; Davies v. Clough, 8 Sim. 262; Williams v. Assurance Co., 23 Beav. 338; Morison v. Moat, 9 Hare, 241; Yovatt v. Winyard, 1 Jac. & W. 394; Tipping v. Clarke, 2 Hare, 393; Peabody v. Norfolk, 98 Mass. 452; Champlin v. Stoddart, 30 Hun, 309; Salomon v. Hertz, 40 N. J. Eq. 400, 2 Atl. Rep. 379. The case of Little v. Gallus (Sup.), 38 N. Y. Supp. 487, is against the contention of the defendant. In that case the plaintiff was a maker of type-writer ribbons by secret processes and formulæ. The defendants entered his employ when they were minors. The court says: "It seems, therefore, too plain for controversy that the plaintiff was the owner of a process or invention which possessed great value, and which he had secured at the cost of much time, trouble, and expense; that the defendants, Gallus and Bostwick, occupying a confidential relation toward the plaint iff, gained a knowledge of the process and formulæ employed by him in conducting his business; that they well understood the nature of his business, their relations to it, and the care which was used to keep the same secret; and that, notwithstanding the knowl edge thus obtained, and in violation of the faith and confidence reposed in them, they surreptitiously made memoranda of these formulæ, and are now using the same, as well as all the other knowledge obtained while in the plaintiff's service, to start and operate a rival establishment. The only question therefore, to be determined upon this state of facts, is whether or not they shall be permitted to carry out their intentions. It is contended by the plaintiff that his case is brought directly within the rule laid down in that of Kodak Co. v. Reichenbach, 79 Hun, 183, 29 N. Y. Supp. 1143, recently decided by the general term in the fifth department; and the defendants, while conceding that the law of the case is there correctly stated, insist that the facts do not warrant its appli. cation here. We find ourselves unable to concur in the view thus taken, and which was carefully elabo rated upon the argument by the learned counsel for the defendants. The facts of this case differ somewhat from those of the Reichenbach Case, in that there was no written agreement entered into between these parties by which the employees undertook to give to their employers exclusive right in, or control over, any inventions discovered by, or disclosed to, the former; but we are unable to see how this strengthens the defendant's contention. In the case cited there happens to be an express contract, but, nevertheless, it is asserted, in the opinion of the court, and such is unquestionably the correct rule, that the law raises an implied contract that an employee who occupies a confidential relation toward his employer will not divulge any trade secrets im parted to him or discovered by him in the course of his employment; and we do not see why the defendants, Gallus and Bostwick, are not us der just as strong an obligation to observe and keep sacred the trust reposed in them as they would be had they reduced the contract which the law im plies to writing. Nor does the fact that they entered the plaintiff's service while minors, and at first per formed duties comparatively unimportant in their character, relieve them from a faithful observance of their obligation. Gallus, at least, was ultimately advanced to a position of great responsibility, and both of them had attained their majority before attempt ing to take improper advantage of the knowledge inparted to them while in the plaintiff's employ, and their present experiments are not in the direction of legitimate competition, but involve a breach of trust which we think the court should prevent." Taberv. Hoffman, 118 N. Y. 31, 23 N. E. Rep. 12; Tuek 1. Priester, 19 Q. B. Div. 629; Pollard v. Photographi Co., 40 Ch. Div. 345. DAMAGE SUITS BY STEVEDORES. Admiralty jurisdiction in matters of cotract, depends upon nature of contract, but in torts locality governs. In admiralty the vessel is deemed an offending thing. And the locus of the damage, not the locus of the origin of the tort determines the question. The application of this test sometimes give rise to exceedingly nice distinctions. For curious illustration see the Manhasset, where the injury was inflicted upon a passenger in the act of stepping from the ferry boat to the landing, the court holding that the bes caused the injury, and that the injury was inflicted upon a part of the body of the man which had not yet landed. Generally speak ing the vessel is bound to furnish tacke rigging, appliances and machinery, reaso ably safe for the use of those employed in receiving or discharging cargo. This duty includes a reasonably safe place to stand ani 1 Phil., etc. Co. v. Phil., etc. Co., 23 How. 215; S. F. Co. v. Chase, 16 Wall. 53; Kate Cann, 2 Fed. Rep. 24 8 Fed. Rep. 719; Harmon v. Port Blakeley Mill C 69 Fed. Rep. 646, 71 Fed. Rep. 853. 2 Sherlock v. Aalling, 93 U. S. 108. 4 Steel v. McNeill, 60 Fed. Rep. 105; The Phoen 34 Fed. Rep. 760; The Carolina, 30 Fed. Rep. 19% Fed. Rep. 112; The Eddystone, 33 Fed. Rep. 925; T Allianca, 44 Fed. Rep. 97; The Frank and Willie, Fed. Rep. 494; The Nebo, 40 Fed. Rep. 31; Ashebre 44 Fed. Rep. 124; The William Branfoot, 48 Fed. Ep. 914, 52 Fed. Rep. 390; The Rheola, 19 Fed. Rep. 22 The Kate Cann, 2 Fed. Rep. 243, 8 Fed. Rep. 1 The Serapis, 51 Fed. Rep. 91; The Servia, 44 Fe Rep. 943; The Maharajah, 40 Fed. Rep. 784, 49 Fe Rep. 111; The Islands, 28 Fed. Rep. 478; The Haro 21 Fed. Rep. 428. 6 work. The machinery and appliances need not be the safest and best or of the newest pattern. But it is not sufficient that the appliances when furnished were safe, for they must be repaired and kept in proper condition. The vessel is responsible if her master knew, or had the means of knowing, or if the circumstances are such as to put him on inquiry so that he could know that the tackle or appliances were unsafe." If however the instrument be new and the defect latent and imperceptible so as to avoid a close scrutiny, no liability attaches. But where the accident is an unusual and unexpected one, and the thing causing the accident is in the exclusive management, possession, or control of the vessel, the vessel is responsible notwithstanding the defect is not apparent to the eye. In such cases the doctrine res ipsa loquitur applies and the onus probandi rests upon the vessel. In admiralty contributory negligence does not bar recovery but entitles libellant to divided damages. The conflict in the decisions in the lower courts of the United States upon this point was finally decided in the Max Morris Case,10 in 1890. Negligence of fellow servants is one of the risks assumed with the employment which will exonerate the vessel. But if negligence of the vessel in the appliances furnished combines with the negligence of the fellow laborers, the vessel will still be held responsible.12 There is some conflict in the application of the doctrine of fellow-servants. In the Furnessia,13 the court held the stevedore working in the hold a fel 5 The Terrier, 73 Fed. Rep. 265; Hermann v. The Port Blakeley Mill Co., 71 Fed. Rep. 853; Keily v. Allianca, 44 Fed. Rep. 97; The Frank and Willie, 45 Fed. Rep. 494; The Protos, 48 Ped. Rep. 919; The Helios, 12 Fed. Rep. 732; The Dago, 31 Fed. Rep. 574; The Harold, 21 Fed. Rep. 428; The Kate Cann, 2 Fed. Rep. 243. 6 The Serapis, 51 Fed. Rep. 91; The Maharajah, 40 Fed. Rep. 784, 49 Fed. Rep. 111; The Servia, 44 Fed. Rep. 943; The Benbrack, 33 Fed. Rep. 687. 7 Steel v. McNeil, 60 Fed. Rep. 105; The Phoenix, 34 Fed. Rep. 760; The Nebo, 40 Fed. Rep. 31. 8 The Benbrack, 33 Fed. Rep. 687. The William Branfoot, 52 Fed. Rep. 390, 48 Fed. Rep. 914; The Eddystone, 33 Fed. Rep. 925. 10 S. C. Rep. 29, 137 U. S. 1. 11 The Furnesia. 30 Fed. Rep. 878; Hermann v. The Port Blakeley Mill Co., 71 Fed. Rep. 853; The Wallawalla, 46 Fed. Rep. 198; The Servia, 44 Fed. Rep. 943; The Islands, 28 Fed. Rep. 478; The Harold, 21 Fed. Rep. 428; The Victoria, 13 Fed. Rep. 43. 12 The Phoenix, 34 Fed. Rep. 760; Anderson v. Ashebrook, 44 Fed. Rep. 124. 13 30 Fed. Rep. 878. low-servant with the man at the winch and cited The Harold,14 as authority. The same court by the same judge in the subsequent case of The Victoria, 15 held directly contrary to this ruling and cited Johnson v. Navigation Company, 16 but made no reference to the Furnessia. The same court by a different judge holds them to be fellow-servants.17 With regard to the gangwayman whose duty is to give warning to the laborers at work in the hold the decisions are more harmonious. The weight of authority seems to be that they are fellow-servants.18 It is difficult to gather from the cases what effect, if any, the fact that the vessel is under charter party, and that loading is done by charterers stevedore, has upon the liability of the vessel for torts to the stevedores or their employees. The language of the "Stevedore clause" in charter parties in the different cases is seldom the same, consequently the construction and effect thereof varies with the particular case. Where the charter party is silent as to the matter of the employment of the stevedore and the custom of the port does not otherwise provide the presumption would be that the stevedore is the agent of the ship.19 Where the charter party is not simply an affreightment but amounts to a demise of the ship it seems that charterers would be liable in personam. This would hardly relieve the vessel however in rem for charterers would then be owners pro hac vice. Where the charter party is only a contract of affreightment and the stevedore is employed by charterer but is injured by defective appliance furnished by the vessel the vessel is liable.20 It was said in Steel v. McNeil,21 that the law is too well settled to require argument, that an action in rem will lie for damages arising from defective or imperfect appliances furnished those employed in receiving or discharging cargo al14 21 Fed. Rep. 420. 15 69 Fed. Rep. 160. 16 132 N. Y. 576. 17 The Servia, 44 Fed. Rep. 943. 18 Hermann v. The Port Blakely Mill Co., 71 Fed. Rep. 853; The Servia, 44 Fed. Rep. 943; The Islands, 28 Fed. Rep. 478; The Victoria, 13 Fed. Rep. 43; The Phoenix, 34 Fed. Rep. 760. 19 George W. Bush & Sons Co. v. Thompson, 65 Fed. Rep. 812. 20 34 Fed. Rep. 760; 44 Fed. Rep. 124; 19 Fed. Rep. 926; 2 Fed. Rep. 241. 21 60 Fed. Rep. 105. though they may be in the immediate employ and pay of the stevedore. But the decisions in some cases under such circumstances hold that the vessel is not liable upon the ground that the stevedore is an independent contractor.23 As between shipper or owner of goods, and the vessel, the vessel has been held liable for negligence of the stevedore, although the ship was under charter party by which charterer named the stevedore.24 This case it is true was reversed,' 25 but upon other grounds. Indeed the point appears conceded on appeal to the circuit court, that the stevedore was the agent of the ship, and his negligence the ship's negligence, although he was selected by the charterer.26 And when the clause reads "under direction of the master," the stevedore is an agent of the ship though appointed by the charterer.27 But the better and stronger reason for holding the vessel responsible in cases of tort, even when the vessel is under charter, is given by Judge Benedict in the oft quoted case of The Kate Cann, 28 where he says "to be sure the libellant was not directly employed by the ship owner, and it may be truly said that no relation by contract existed between the ship owner and the libellant but the libellant was trimming the ship owner's ship. He was doing what was necessary to be done to enable the ship to carry the cargo in safety and the only reason why he was so employed was because the ship owner had by a contract with the charter indirectly provided for the performance of the service." W. HUGER FITZSIMONS. Charleston, S. C. 22 60 Fed. Rep. 105. 23 31 Fed. Rep. 574; 33 Fed. Rep. 687; 31 Fed. Rep. 418; 28 Fed. Rep. 478; 4 Fed. Rep. 493; 8 Gray, 147; 3 Gray, 349. 24 22 Fed. Rep. 662. 25 40 Fed. Rep. 91. 26 See The Keystone, 31 Fed. Rep. 412. 27 Gerard v. Lovespring, 42 Fed. Rep. 853. 28 2 Fed. Rep. 241. See, also, The Joseph B. Thomas, 81 Fed. Rep. 578; Bramble v. Culmer, 78 Fed. Rep. 497; The Alijandro, 56 Fed. Rep. on p. 624; The Conde Wifredo, 77 Fed. Rep. 324. EASEMENT-IMPLIED RESERVATION. MEREDITH v. FRANK. Supreme Court of Ohio, June 8, 1897. 1. Where an owner of a tract of land has made and maintained a private way over his land to a public highway, and such way is his only means of ingress and egress to his home, sells and conveys to another a portion of it lying on the public highway, and is thereby deprived of all access to the highway except by the way he had previously constructed and maintained, and which passes through the granted part, and the facts were well understood by both parties at the time in such case, the way is reserved to the lands of the grantor by implication, although the deed contains a covenant against incumbrances. 2. It is a general rule that one cannot derogate from his grant; so that, to warrant the interference of a way reserved by implication, it must be one of strict necessity to the remaining lands of the grantor. It is not merely a matter of convenience, and, if the || grantor has another mode of access to his land, how ever inconvenient, he cannot claim a way by implica tion in the land conveyed, though he may have been in the use of a way over it to a public highway at and a long time before the conveyance, and of which the grantee had notice at the time. MINSHALL, J.: This case was argued and submitted with the case of Baker v. Rice, reported 47 N. E. Rep. 657, on the assumption that each presented the same question, so that the affirmance of one would involve the reversal of the other, and e converso. But, in our judgment, there is a difference between the reservation of a way and the grant of a way by implication. The reservation of a way by the grantor in apparent derogation of his deed and its covenants stands upon a much narrower ground than does the case of a grant. In the latter case, as held in Baker v. Rice, a way passes by implication where it had been attached to the part granted by the grantor. and is apparent, and necessary to the reasonable enjoyment of the premises granted. It is not necessarily a way of strict necessity. But in the reservation of a way by implication the case is different. Ordinarily a deed is taken most strongly against the grantor. He may in sert in it such exceptions and reservations as he desires, and the grantee, by accepting the deed. is held to assent to them; and therefore the grantor is not generally permitted to derogate from his grant, or disregard the covenants of his deed. But there seems to be a well-recognized exception, and that is where a grantor, by the sale and conveyance of a part of his land, is thereby deprived of all access to any public highway from the part retained, and this is known to the grantee. In such case it is a fair inference that the grantor did not intend to subject himself to the necessity of buying a way out; nor can it be inferred that the grantee, with knowledge of the facts, supposed that he did, particularly where the grantor had a well-defined way over the part granted to the highway in use at the time of the conveyance. In such case the cir cumstances are such as to indicate that the deed does not express the real understanding of the parties as to the way over the land granted, and might have been reformed in equity. But the courts in such cases have pursued a more liberal practice, and done at law by the implication of a grant what could have been accomplished in 1 |