alley building terminated and extinguished whatever rights the complainant acquired to use said doorway by virtue of the assignment of the lease of the Mathewson street building from the Emery Bros. to him, and that he has no right to use the doorway in the Washington street building.

* * *

[Appeal dismissed.]3

NAUMAN v. TREEN BOX CO.

(Supreme Court of Pennsylvania, 1924. 280 Pa. 97, 124 A. 349.)

Suit by Paul Nauman against the Treen Box Company. Decree for plaintiff, and defendant appeals.

SIMPSON, J. On April 22, 1919, plaintiff sold and conveyed to defendant's predecessor in title, a piece of ground situated at the corner of Tioga and Tulip streets (two open, public highways of the city of Philadelphia), retaining, for his own use as a coalyard, the balance of his lot, fronting on Tulip street. Along Tioga street there then was and still is a freight track, from which, at the time of the sale and for some years prior thereto, a siding or spur ran across the lot conveyed by plaintiff, and to and upon that retained by him; but the deed from him to defendant's predecessor in title makes no mention of it, and the question we are asked to decide is whether or not a right to the use of the siding across defendant's property was nevertheless impliedly reserved to plaintiff. Defendant denied the right, and the railroad company, on notice from him, having refused to move any more coal cars over the siding, plaintiff filed the present bill in equity to have his right established by an appropriate decree, and defendant enjoined from interfering with it. The court below so decreed, and defendant appeals.

If we were considering an executory agreement for the sale of real estate, which expressly required a clear title, we would be compelled to decide that defendant could refuse to take the property, despite the visible and notorious character of the siding. * * *Here, however, the contract has been executed; in which event, the various courts of the country differ widely regarding the effect of the conveyance, where, as in the instant case, a private right of way has not been expressly reserved. In perhaps the larger number of jurisdictions (19 C. J. 920, note 75), it has been held that if the deed makes no reference to an easement, which, though beneficial to the rest of the grantor's property, is not strictly a way of necessity, the law will not imply a reservation of it, for the reason that a vendor will not be permitted to derogate from his own grant. * * * In the instant case there is no claim of a way of necessity; doubtless for the reason that plaintiff has access, by Tulip street, to the unsold part of the property.

Upon much consideration, we later abandoned the rule of Collam v. Hocker, 1 Rawle, 108, Kieffer v. Imhoff, 26 Pa. 438, and reached the conclusion, which has since been definitely formulated as follows: "Where an owner of land subjects part of it to an open, visible, permanent, and continuous service or easement in favor of another part, and

3 But in Citizens' Electric Co. v. Davis, 44 Pa. Super. Ct. 138 (1910), where an easement was over a plank road, the washing out of the plank road did not destroy the easement, which was appurtenant to the soil.

BAU.& DIL.B.L.-38

then aliens either, the purchaser takes subject to the burden or the benefit as the case may be." Grace Methodist Episcopal Church v. Dobbins, 153 Pa. 294, 297, 25 A. 1120, 34 Am. St. Rep. 706.

This conclusion has been steadily maintained by us, and has become a rule of property, to which stare decisis compels us to adhere, so long as it is not altered by legislation. Incidentally it may be said it has the support also of the courts of last resort in almost as many jurisdictions as approve the opposite rule. 19 C. J. 921, note 79.

Is, then, this siding of the character above specified? It is, of course, open and visible; a structure of this kind necessarily is. At common law it was not treated as continuous, however, because its physical use depends on the act of man. Jones on Easements, 119, 120. Under that rule, a private road, no matter how much traveled, would not be a continuous easement, while a drain, however infrequently used, was always held to be so. By the civil law, however-which we early followed on this particular subject (Kieffer v. Imhoff, supra)—a broader and more sensible rule obtains, for the test of a continuous easement is whether or not it is of a nature adapted to continuous use, and hence an ordinary right of way, such as a road, a path, or an alley, has been held to be continuous. Whether or not a railroad siding would be within that class need not be considered on this appeal, for we are of opinion it is not a permanent easement.

* * *

In Francies' Appeal, 96 Pa., 200, 207, the master held: "That all easements, of whatever class, which pass by implication or construction of law, must be necessary, apparent and permanent in their character; that a temporary provision or arrangement made for the convenience of the entire estate, will not constitute the degree of necessity and permanency required to burden the property with a continuance of the same when divided or separated by conveyance to different parties"; and we affirmed "upon the remarkably clear and able opinion of the learned master." *

* *

[Decree reversed.]

SECTION 2.-PROFITS À PRENDRE

A. has the right to get a load of clay from the land of B. each year, or C. has the right to take half of the grain raised on the land of D. each year, or E. has a right to pasture his horses on the land of F. Such rights are said to be profits à prendre.

"A profit à prendre is a right exercised by one man in the land of another, accompanied with participation in the profits of that land. In other words, it consists of a right to take a part of the soil, or produce of the land.” 4

4 Burdick on Real Property, p. 441.

BAU.& DIL.B.L.

SECTION 3.-RENTS

If A. grant to B. an estate in freehold, B. has the right to collect rents from the premises in question. B.'s right is realty. But it has sometimes happened that one person has held only the right to collect rents from the land for a certain period, not having himself any freehold estate. Under such conditions, one's right to rents is personalty.

Where the owner of an estate in realty merely grants to another the right to collect rents, he has not granted him a tenure of any kind. Therefore, in such a case, the holder of the right to collect rents has none of the rights of a tenant of the land.

SECTION 4.--RESTRICTIONS ENFORCEABLE BY IN

JUNCTION

A., the owner of land adjoining a city or village, plats a lot of land into building lots, submits the plat to the city council or village board, which accepts it and constitutes A.'s land an addition to the municipality. A. proceeds to sell lots. In order to assure the building of only large, well-planned, and soundly constructed buildings, A., in each deed of conveyance to purchasers, inserts a clause in which the grantee agrees to build no dwelling at a cost of less than $20,000. In order to secure spacious lawns of uniform depth, he may insert a covenant in which the grantee agrees not to build any structure within seventy feet of the front of the lot. These and many similar covenants are said to create equitable easements, and they protect neighboring property owners in the addition from having buildings and conditions around them undesirable. Such covenants are enforceable by injunction."

5 See part IV, chapter X, section 4.

CHAPTER IX

EQUITABLE ESTATES AND INTERESTS IN PROPERTY

Section

1.

Introduction.

2. Distinctions Between Equitable Estates and Other Equitable Interests. 3. Trusts.

SECTION 1.-INTRODUCTION

Usually, when A. is said to own a certain tract of land, A. actually holds the legal title in fee simple, and has also the beneficial ownership and use of the same tract. But it sometimes happens. that A. has the legal title to the land, while B. has a beneficial interest, in which case B. may be said to have either an equitable estate or an equitable interest in the land. In order that there may be either an equitable estate or an equitable interest, it is necessary that the legal title be in a person other than the owner of the legal title; for, if both the legal title and the equitable estate or interest be in one person, the equitable estate or interest is destroyed by merger. One form in which the equitable estate frequently exists is the trust. The legal estate is recognized by courts of law, and the equitable estate, the equitable interest, or the equitable right, is recognized by courts of equity.1

SECTION 2.-DISTINCTIONS BETWEEN EQUITABLE ESTATES AND OTHER EQUITABLE INTERESTS

McILVAINE v. SMITH et al.

(Supreme Court of Missouri, 1867. 42 Mo. 45, 97 Am. Dec. 295.) Bill in equity by McIlvaine against Garesche, as trustee, and Smith, as cestui que trust. Plaintiff and another had recovered judgments against Smith, and at a sheriff's sale thereunder the plaintiff became the purchaser, and alleged that he thereby acquired the title of Smith to the

*

*

1"In all cases of equitable estates, as distinguished from lesser interests, whether in fee, for life, or for years, they are in equity what legal estates are in law the ownership of the equitable estate is regarded by equity as the real ownership, and the legal estate is no more than the shadow always following the equitable estate, which is the substance, except where there is a purchaser for value and without notice who has acquired the legal estate. This principle of a double, one legal and the other equitable, is not confined to equitable estates, properly so called; it is the essential characteristic of every kind of equitable interest inferior to estates. In the total ownership resulting from mortgages, or from the operation of the doctrine of conversion, or from the assignment of things in action, and other interests not assignable at law, and in liens, there is always a legal title or estate vested in one person, which is recognized, and, according to its nature, protected or enforced by courts of equity." Pomeroy's Equity Jurisprudence (Students' Edition) § 147.

realty which was the subject of the trust deeds; it having been conveyed to him by deed duly executed, and Smith at the time being in the enjoyment of the rents, issues, and profits as granted to him by the deeds of trust in question. The petition prayed that Garesche, the trustee, be ordered and decreed "to pay and render" to the plaintiff during the life of Smith, and that Garesche, or his successors as trustees, be enjoined from paying the income to any one other than the plaintiff or his assignees, and that generally the plaintiff be fully subrogated, during the life of Smith, to all his rights and interests under the trust deeds. The trust deeds were made and executed by one Gibson to Riggin, who was the first trustee. Under a power of appointment reserved to Smith in the deed to change the trustee, Garesche had been substituted as trustee. The petition further alleged that Gibson, the grantor, was merely the nominal and not the real owner at the time of the execution of the trust deed, and that Smith was the real owner, having conveyed to Gibson, without consideration, who thereupon executed two trust deeds of the realty in question to Riggin, making Smith cestui que trust. A demurrer to the petition was sustained, and the cause submitted to this court on writ of error.

*

HOLMES, J. ** The first question is whether the trust declared for his benefit creates an equitable estate in the land that could be levied on and sold under execution. By the statute, "all real estate whereof the defendant, or any person for his use, was seised in law or equity," is subject to sale under execution; and the term "real estate" includes "all estate and interest in lands, tenements, and hereditaments." Rev. Code 1855, p. 740, §§ 17, 73. The statute contemplates an interest or estate in the land, of which the defendant, or the trustee for his use, is seised in law or equity; and when there is no seisin of such an equitable estate, there is no interest in the land which is liable to execution. * * * It was said in Broadwell v. Yantis, 10 Mo. 403, that there must be an interest in land which a court of law can protect or enforce, in order that it may be subject to the lien of a judgment and execution, and that "a mere equity, unaccompanied with possession, is not such an interest." The previous decision of this court would seem to warrant a distinction, in reference to the beneficiary, between a vested equitable estate in possession, and a mere ground of equitable relief against the trustee, as a simple right to maintain a suit in equity. * * The case of Broadwell v. Yantis, supra, recognized the authority of the case of Bogart v. Perry, 1 Johns. Ch. (N. Y.) 52, which appears to have proceeded upon a distinction of this nature; and it was there said that there must be an equitable title or estate within the purview of the statute of uses, and not a mere equitable interest in the land. It is not very clear what was meant by such an interest, but it may be supposed to mean such an interest only as might furnish a ground for equitable relief against the trustee to enforce the execution of the trust, or “an equitable chose in action," as it was said in that case.

*

A life estate in land, at common law, was evidenced by the tenant being clothed with the possession under the name of livery of seisin, and he became a freeholder. Trusts are cognizable only in equity, and it was for the reason that the collateral obligations of trusts were not known at law as interest in lands that they took the name of equitable estates. A simple trust supposes the legal estate merely to be vested in the trustee, and that the cestui que trust is entitled in equity to the rents