Majority
Headnote
A. owned a lot of land, upon which was a spring of water; he gave to B., the owner of an adjoining lot, in consideration of a small annual rent, a parol license, revocable at his pleasure, to lay a pipe underground from the spring to conduct the water therefrom to the house of the latter. B. laid the pipe to his house where it discharged into an open tub. O. owned a lot, separated about fourteen rods frojn that of A., the lot of B. intervening. With the consent of A. and B., 0. laid a pipe from his house to the tub on the premises of B. and thus took the surplus water therefrom for the use of his house. A. thereafter purchased C.’s lot, and his tenant, by his direction, connected the two pipes at the tub, which was thereafter supplied by a branch pipe. A. sold and conveyed the C. • lot “with the appurtenances thereto belonging;” the deed making no mention of the spring or of the water therefrom. Through various mesne conveyances, containing similar descriptions, plaintiff acquired title to said lot. A. continued to own the lot upon which was the spring until his death; his executors thereafter sold and conveyed the same to defendant by deed, describing it by metes and bounds, and containing no reservation or mention of any right in any other person to the spring or the water from the spring. Defendant, after the conveyance to her, disconnected the pipe from the spring. In an action to restrain such interference with the flow of water through the pipe and to enforce plaintiff’s . alleged right to a supply of water from the spring, it appeared that, when defendant was negotiating for the purchase, R., who then owned plaintiff’s lot, informed defendant that no person, other than the executors, owned any right in or to tlie waters of the spring or to take water therefrom, and she relied on such statement in making the purchase. The trial court found that the water from the spring was necessary for the use and enjoyment of plaintiff’s premises, and with it they were of much more value than without, but that the premises could have been supplied with water by means of a well on the premises; defendant offered to show on the trial that such a well could have been dug at a small cost. Held, that the action was not maintainable; that the right to the use of the water did not pass as an appurtenance under the deed from A. of the plaintiff's lot; and that there was no implied easement giving such a right.TMs is an appeal by the defendant from a judgment of the General Term affirming a judgment in favor of the plaintiff entered upon the decision of the trial judge at circuit without a jury.
Among the facts found are the following: On the 10th of March, 1865, one Bradbury took a conveyance of the premises now occupied by the plaintiff, and in June, 1870, he conveyed those premises to one Rowley, who, in February, 1883, conveyed them to the plaintiff. Bradbury had also been the owner and in possession of the premises now occupied by the defendant for thirty years prior to April 5, 1882, at which time he died, and on the 3d of July, 1882, the defendant took title to these premises from the executors of Bradbury who had power to sell. Thus, from 1865 to 1870, Bradbury was the owner both of the premises occupied by the plaintiff and of those occupied by the defendant. In 1860 one Aldrich Windsor conveyed to one Beebe a strip of land situated between the two above-mentioned lots, and such intervening strip was, at all points between the other two lots, at least fourteen rods wide. So that at the time when Bradbury was the owner of the premises now owned by the plaintiff and defendant, respectively, those lands were, and at all times for the past thirty years had been, entirely disconnected and separated from each other by this intervening lot. In December, 1861, Beebe conveyed the intervening lot to one Trask, who, in 1868, conveyed it to one Olark, who, in 1870, conveyed it to one Root, who has since that time been and now is the owner thereof.
The title, it will be observed, to the plaintiff’s and defendant’s premises, respectively, came to Bradbury from entirely different sources, and while Bradbury parted with the title to the premises now owned and occupied by the plaintiff in June, 1870, he continued to hold and own the premises now occupied by the defendant up to the time of his death, in 1882. The premises owned and occupied by the plaintiff are described in the various conveyances through which she claims title, by metes and bounds, “ with the appurtenances thereto belong
On the premises owned and occupied by the defendant, there is, and has been for many years, a living spring of water, and some time, about 1860 or 1861, while Beebe was the owner and in possession of the intervening premises, fourteen rods wide, as above mentioned, he was desirious of obtaining a. supply of water from the spring situated on the defendant’s land, then owned by Bradbury, and for that purpose he applied to Bradbury to purchase from him the right to lay a pipe under the ground from the spring to Beebe’s house, upon the intervening land, and to take the water from the spring through the same. Bradbury refused to sell or convey to him any such right, or any right to lay a pipe or take water from the spring, but he gave Beebe a parol license to lay a pipe from the spring to his house, and conduct the water thereto, at the same time informing Beebe that he should make a small charge, therefor as the consideration for such privilege in the way of' an annual rent. Under this license Beebe put the pipe from the spring, under ground, to his house, where it discharged' water into an open tub, and where the pipe terminated. When -the subsequent owners of the same premises, then owned by Beebe, respectively, came into the possession of the same under their purchases, Bradbury informed each of them that he should charge rent for the water from the spring, and in this they all acquiesced.
After Beebe put this pipe down, and some time after April, 1860, one Merchant, who was then the owner of the premises now occupied by the plaintiff, with the consent of Bradbury,
In 1865, Rowley was hving on the premises now owned by the plaintiff, as tenant of Bradbury, and with the knowledge and by the direction of Bradbury, he connected the pipe running from the spring to Beebe’s house on the intervening premises with the pipe running from the house on the premises on which he was then living and made one continuous line, a small branch pipe being attached to discharge the water into the tub at the Beebe house. Bradbury did not own the pipe leading from the spring to Beebe’s premises, but it was laid and owned by Beebe. In June, 1870, when Bradbury conveyed the premises now ownedby the plaintiff to the said Rowley, the water from the spring on Bradbury’s premises now occupied by the defendant was running through a pipe and discharging into a tub on the premises now owned by the plaintiff, in the manner above described, and the learned judge in his findings adds: “ That it was necessary for the use and enjoyment of such premises; and with such water running the plaintiff’s premises were of much more value than they would be without it.” This finding as to the necessity of the water for the use and enjoyment of the premises is limited by the further finding in which the learned judge says that the premises could have been supplied with water by means of a well dug on the premises. The defendant also offered to show such well could be dug for $25, which would furnish a constant supply of good water, but under objection the evidence was excluded. While Rowley was the owner of the premises now owned by the plaintiff, he informed the defendant, who was about purchasing the premises now owned by her from the executors
Upon thése facts the court granted the injunction and gave judgment for the plaintiff. She bases her right of action in this case upon two propositions, first, that the right to the use of this water passed to her by the deeds from Bradbury to Rowley, and from Rowley to her, as an appurtenance to the premises, and, second, that under the circumstances there was an implied easement consisting of the right to take water through or over the lands now owned by the defendant, so long as the parties owning intervening lands did not object to its passage across such lands in order to reach the lands now owned by the plaintiff.
We think no such right passed by the several conveyances to plaintiff and her grantors, which simply conveyed the land by metes and bounds “with the appurtenances thereunto belonging.” Rothing passes by the word appurtenance except such incorporeal easements or rights or privileges as are strictly necessary and essential to the proper enjoyment of the estate granted. A mere convenience is not sufficient to thus create such a right or easement. (See Ogden v. Jennings, 62 N. Y. 526 ; Green v. Collins, 86 id. 246; Griffiths v. Morrison, 106 id. 165.)
Ror do we think that under the circumstances there was any implied easement which passed to the grantees under the deed from Bradbury.
It must be remembered that the two premises, although at one time both owned by Bradbury, were essentially two distinct plots of ground, and the title to each vested in Bradbury from a different source. Between the two lots of ground was this intervening strip of fourteen rods in width, substan
This state of things existed at the time Merchant, who occupied at one time the land now owned by the plaintiff, was permitted to take the surplus water from the intervening lots and conduct it to his own premises; and that was done by the mere parol license of Beebe and Bradbury. The same state of things existed at the time Bowley succeeded Merchant as tenant to Bradbury, and subsequently as Bradbury’s grantee, Bowley at all times understood perfectly well the terms upon which his right existed to conduct the water over Bradbury’s premises to his own, and he understood that it rested simply upon the. parol license of Bradbury. All the facts show conclusively that Bradbury understood his own rights in the premises and never intended that any right to obtain the water from the spring on the premises now occupied by the defendant should accrue to the owners or occupiers either of the intervening lot or of the premises now occupied by the plaintiff. We see nothing in the facts found by the learned trial judge which would change the right to use the water from a right resting simply in a parol license, to an absolute right based upon an easement implied in agrant of the premises to plaintiff and her grantors.
We do not think the case comes within the principle of those cases cited by the counsel for the plaintiff, of which Lamp
To the same effect is Adams v. Conover ( 87 N. Y. 422 ), although that case arose under an alleged breach of covenant of warranty and of quiet enjoyment contained in the deed. It was contended that the covenant was broken because at the time of the conveyance of the premises, which consisted of a mill, a dam and a pond which furnished water power for the mill, they were in a certain visible condition in regard to the height of the dam, and yet a right existed in and was subsequently exercised by a third party to compel the lowering of such dam, the effect being to substantially ruin the premises for use as a water power, which was the sole consideration for their purchase and their chief value. The court held that the conveyance by metes and bounds, which included the dam and water power, conveyed the dam as it then stood at its existing and apparent height. The court said that the power of the water thus created and stored was the essential and material element of value in the mill property which was the subject of the conveyance, and, therefore, there was a breach of the covenant of warranty and of quiet enjoyment when it was shown that there was a superior right in a third person to demand a reduction of the height of the dam and the lessening of the head of water thereby, and it was so determined because of the fact that substantially the whole value of the property depended upon continuing the height of the dam as it existed, openly and apparently, at the time of the conveyance. We have carefully looked through the cases cited in the opinion of the learned justice who wrote at General Term, but we can find nothing in them that militates against the views here expressed.
Upon all the facts in this case we are of opinion that there was nothing but a mere parol license proved from the grantor of the defendant, and that the right to take or convey water from the defendant’s premises did not pass to the plaintiff
The judgments of the General Term and of the Gircuit should therefore be reversed, and a new trial granted, costs to abide the event.
All concur.
Judgments reversed.
Cases cited
- Lampman v. Milks 21 N. Y. 505 p. 384, p. 386, p. 396
- Curtiss v. Ayrault 47 N. Y. 73 p. 384, p. 387, p. 388
- Green v. Collins 86 N. Y. 246 at 252, at 254 p. 385, p. 386, p. 387, p. 390
- Adams v. Conover 87 N. Y. 422 p. 385, p. 397
- Wiseman v. Lucksinger 84 N. Y. 31 p. 385
- Mumford v. Whitney 15 Wend. 380 p. 386
- Ex parte Coburn 1 Cow. 568 p. 386
- Selden v. Delaware & Hudson Canal Co. 29 N. Y. 634 p. 386
- Simmons v. Cloonan 47 N. Y. 3 p. 386, p. 387
- Butterworth v. Crawford 46 N. Y. 349 p. 386, p. 387
- De Herques v. Marti 85 N. Y. 609 p. 387
- Newton v. Porter 69 N. Y. 133 p. 387
- Tilton v. Nelson 27 Barb. 595 p. 387
- Ogden v. Jennings 62 N. Y. 526 at 531 p. 387, p. 394
- Simmons v. Cloonan 81 N. Y. 557 p. 387, p. 390
- Outerbridge v. Phelps 58 How. Pr. 77 p. 387
- Barber v. Babel 36 Cal. 11 p. 388
- Gibert v. Peteler 38 Barb. 488 p. 388
- Gibert v. Peteler 38 N. Y. 165 p. 388
- Brouwer v. Jones 23 Barb. 153 p. 388
- Lattimer v. Livermore 72 N. Y. 174 p. 388
- Roberts v. Roberts 55 N. Y. 275 p. 388
- Huttemeier v. Albro 18 N. Y. 48 p. 388, p. 389
- Trustees of Columbia College v. Lynch 70 N. Y. 440 p. 389
- Stevens v. Stevens 16 Johns. 110 p. 389
- Jackson ex dem. Bonnell v. Wheeler 10 Johns. 164 p. 389
- Wellington v. Kelly 84 N. Y. 543 p. 389
- Abbott v. Allen 14 Johns. 248 p. 389
- McNeil v. Tenth National Bank 46 N. Y. 325 p. 389
- Nicholls v. Wentworth 100 N. Y. 455 p. 389
- Spencer v. Carr 45 N. Y. 406 p. 390
- Brewster v. Striker 2 N. Y. 19 p. 390