STRONG, J.
At the time of the partition between the heirs of John Beekman, they owned the strip of land over which the easement as an alley-way is claimed by the plaintiff, and also the adjoining lots on each side of it. The alley-way, as claimed, then clearly appeared upon the land, and was in actual, visible use by the occupants of the contiguous lots. It had been open, apparent to observation, and in such actual use for more than forty years. Two of the deeds given on the partition, one conveying the lot now owned by the plaintiff to his grantor, and the other conveying to the grantor of the defendant the lot now owned by the defendant, recognize the alley-way as existing, and refer to it as a boundary. In the former of said deeds, it is expressed that one of the lines of the lot runs to the "southerly side of an alley-way three feet wide," and that the west line runs "southeasterly along said alley-way." In the other deed, one of the lines, as given, runs to the "easterly side of an alley-way three feet wide; thence northwesterly along the same." The alley is not otherwise mentioned or embraced in any of the conveyances on the partition. It is not important to the decision of this case, whether or not the description in the last mentioned deed covers that portion of the alley opposite the lot conveyed; for, assuming that it does, the easement will nevertheless exist for the common benefit of all the lots, if it is apparent from the conveyances, and the circumstances connected with the manner of the use and enjoyment of the land, that such was the intention of the parties. The conveyance, in that case, is subject to the easement. The first mentioned deed clearly cannot embrace more than one-half of the alley, if it includes any part of it.
In seeking for the intention of the parties on the subject, the several conveyances on the partition must be regarded as one transaction, and all be taken into consideration in connection with the fact of the existence and use of the alley-way as above stated. The importance of the way for the benefit of the lots may properly be inferred from the period it had existed and been used; and it is a reasonable supposition that the grantee of each lot, in the division, would desire, and insist upon having, an easement corresponding with it. It is also a fair conclusion, in the absence of evidence excluding that idea, that the grantors designed to convey, with the lots, a way which had been long used as appurtenant to them. The omission to convey the alley, or at most but part of it, in a division of the premises among the heirs, would seem strongly to indicate an intention of all the parties that the alley-way should be and remain an easement for the common benefit of the owners of the lots. Another important circumstance, manifesting a similar purpose, is the reference in the deeds to the alley as a boundary of the land conveyed. If the alley was to be abandoned and no longer exist, it would hardly be made a part of the description of the land, to aid in identifying it, not merely at the time of giving the deed, but in future. All these circumstances point in the same direction, and there is no fact in the case in conflict with them. They are conclusive, to my mind, that all the parties intended the way should continue and be used, as it had theretofore been, in connection with the several lots; and if so, an easement to that extent was conveyed to the several grantees as an appurtenance.
It is a general rule that, upon a conveyance of land, whatever is in use for it, as an incident or appurtenance, passes with it. The law gives such a construction to the conveyance, in view of what is thus used for the land as an incident or appurtenance, that the latter is included in it. Whether a right of way or other easement is embraced in a deed, is always a question of construction of the deed, having reference to its terms and the practical incidents belonging to the grantor of the land at the time of the conveyance. The intention of the parties is to be learned from those facts. (4 Kent's Com., 467, and cases there cited; United States v. Appleton, 1 Sumn., 492; N. Ins. Fac. v. Batchelder, 3 N.H., 190; Pyer v. Carter, 40 Eng. L. and Eq., 413.)
My conclusion is that the judgment should be affirmed.
Judgment affirmed.
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