Page:Federal Reporter, 1st Series, Volume 6.djvu/563

 BANK OF BBITISH NOBTH AMEBICA V. MILLES. 651 �ment, and at the time is in use thereon and there-with, as an appartenance in fact, although not technically so at law, and this upon the presumption, more or less cogent accord- ing to the circumstabces, that it was the intention of the parties to the agreement of sale that it should pass with the property to which it was then apparently subservient. Nwh-' olat T. Chamberlain, S Cro. 121; Whitney v. Olney, 3 Mas. 280; U. 8. V. Appleton, 1 Sum. 500; Tkayer v. Payne, 2 Oush. 327; Strickler v. Todd, 1 S. & R. 63, (13 Am. Dec. 'ied;) Coolidge v. Hagcr.iB Ver. 9, (5 Am. Rep. 256;) Sheets V. fi'eMen, 2 Wall. 186. �In such a case the question is simply as to the intention of the parties to be gathered from the terms 'of the conveyance, the subject-matter, and its use and situation at the time of the sale, oi'sLB was Said by Mr. Justice Story in U. S. v. Appleton, «upra: "In the construction of grants the court ought to take into consideration the circumstances attendant upon the transaction, the particular situation of the parties, the state of the country, and the state of the thing granted, for the purpose of ascertaining the intention of the parties. In truth, every grant of a thing naturally and necessarily imports a granfc of it as it actually exists, unleas the contrary is provided for." In this case it was held that the vendees of the wings of a building were entitled, as against a prior vendee of the cen- tral part thereof, to the use of the Windows and doors opening on to the front porch of the latter, not because such right was technically appartenant thereto, but because such porch was so used at the time of the sale of the wings. �In Sheets v. Selden, supra, it was held on the same prin- ciple, in the language of the syllabus, that upon the sale of a division of a canal belonging to the state of Indiana, " 'including its banks, margins, tow-paths, side cuts, feeders, basins, right of way, dams, water-power, structures, and ail the appurtenances thereunto belonging,' certain adjoining parcels of land belonging to the grantor, which were neces- sary to the use of the canal and water-power, and were used with it at the time, but which could not be iucluded in any of the terms above, passed by the conveyance." ��� �