would have created an easement in this strip for the support of the house.
Griffiths v. Morrison, 106 N. Y. 165 , N. E. Rep. 580;
Reiners v.
Young, 109 N. Y. 648 , 16 N. E. Rep. 368 . The servitude must be open and visible to raise a presumption that the parties contracted with it in view. The wall above the ground projected over plaintiff’s premises only about 7 inches. A mere inspection of the premises would not disclose this projection. It would require a measurement or survey of the premises to determine this fact.
Butterworth v.
Crawford,, 46 N. Y. 353 , and cases above cited. The wall under the ground projected 7 inches further upon plaintiff’s premises than the wall above the ground. This extra projection under the ground could only be ascertained by removing the earth concealing it. It seems to us that this alleged servitude was not open and visible. It is not necessary for us to rest our decision upon the foregoing grounds, because the alleged servient estate was conveyed by the common owner, Eastman, before the alleged dominant estate. It seems to be the fairly settled rule in this state that the vendor of a lot carved out of a larger plot owned by him can impose no servitude upon the lot so sold in favor of the portion retained by him in derogation of his grant, without an express reservation to that effect in the grant. This question was squarely presented to the court, and so decided, in
Burr v. Mills, 21 Wend. 290 . Gowen, J., says, (page 292:) “If a man convey land which is covered by his mill-pond without any reservation, he loses his right to flow it. There is no room for implied reservation. A man makes a lane across one farm to another, which he is accustomed to use as a way. He then conveys the former without reserving a right of way. It is clearly gone. A man cannot, after he has absolutely conveyed away his land, still retain the use of it for any purpose without an express reservation. The flowing or the way are but modes of use, and a grantor might as well claim to plow and crop the land. ” “If the mill had first been sold * * * to another, it would have been different; for the right of flow would have passed to that other as an incident, and could not then be cut off by the grantor.” This latter proposition was decided in
Oakley v. Stanley, 5 Wend. 523 . We can think of no good reason why a grantor should be allowed to continue, under the idea of an implied reservation, the occupation of a part of the land absolutely conveyed with a part of his house, standing mostly on an adjoining lot retained by him, if he would not be permitted to continue the occupation of land conveyed by him with a mill-pond to run a mill on the adjoining land retained by him. In our opinion,
Burr v.
Mills is decisive of the case at bar, unless it has been overruled by subsequent decisions. A careful examination fails to disclose such authorities; but, on the contrary, we find it cited with approval in
Simmons v.
Sines, 4 Abb. Dec. 248, by Grover, J.;
Schrymser v. Phelps, 62 How. Pr. 1 ; and in
Outerbridge v.
Phelps, 13 Abb. N. C. 124 . The intimation of Selden, J., in
Lampman v.
Milks, 21 N. Y. 507 , that the rule in respect to easements is the same when the servient estate is first conveyed as when the dominant estate is'first conveyed, is mere
obiter dictum; for in that case the dominant estate was first conveyed, and then there was no reference to
Burr v.
Mills, which indicates that the court had no intention of overruling the principle laid down in that case. In
Butterworth v. Crawford, 46 N. Y. 349 , the plaintiff sought to assert an easement where the alleged servient estate had been first conveyed; but the court disposed of the case on the ground that the asserted servitude was not apparent, and could not, for that reason, be upheld. Page 351. Rapallo, J., says: For that reason the court refrains from the expression of an opinion upon the effect of the conveyance by a common owner of the servient, prior to the dominant, estate. Our courts have manifested no inclination to disturb this rule of
Burr v.
Mills, which, we think, is sound in principle. We apprehend that the establishment of the converse of this rule at this late date would lead to much confusion and uncertainty in respect to titles, many of