Marcy v. Reimer

Headnote

¡Easements—Water—Adjacent Landowners.

A common grantor owned two tracts of land, and on one of the tracts a spring was located, the water from which was .conducted by underground pipes, and discharged in a receptacle on the other tract. She conveyed the tract on which the spring was located to defendant, and thereafter conveyed the other tract to plaintiff, and neither deed contained any mention of the spring or water. Held that, since at the time of the second conveyance plaintiff owned no property rights in the spring, the grantee of the second tract acquired no easement therein, or in the flow of the water to the receptacle, as appurtenant to his land.

Appeal from special term, Dutchess county.

Action by Marcus D. Marcy against Adolph Reimer and another for damages for cutting a pipe which carried water to plaintiff’s premises from a spring on defendants’ adjoining land. The parties held under a common grantor, by deeds executed on the same day, but •defendants had previously been in possession under a contract of -sale. From a judgment for defendants, plaintiff appeals.

.Affirmed.

The following is the opinion of the trial court:.

The deeds by which the parties obtained title to their respective lands were both delivered on the same day. Whose deed was delivered first? The parties and their witnesses differ on this point. A Mrs. White owned a tract of land. She agreed to sell a part of the tract to Reimer in January, 1894; deed to be delivered March 31, 1894, with possession delivered immediately. There was a spring on the piece Reimer bought, from which water was conveyed by underground pipes, which discharged in a tub above the surface of the ground on the part of the White land which she retained. No reservation of the right to have the water flow to the tub was contained in the agreement, .and Reimer knew nothing of the source of the water flow which discharged in the tub. On the 20th of March, 1894, one Feroe agreed with Mrs. White to buy the part of the tract not sold to Reimer, and to pay $500 on the 31st of March, 1894, and take a deed securing -the remainder by mortgage on the property. On the 31st March, 1894, Mrs. White attended, with her deeds,—one to Reimer and the other to Feroe. It then, for the first time, was proposed by ■Feroe that the plaintiff, who was his son-in-law, should take the deed, and he would secure the payment of the part of purchase money unpaid by an additional security on his (Feroe’s) other lands. This made a change in the deed necessary, and also a new mortgage. This mortgage was drawn by a justice ■of the peace. Feroe is dead; but the agent of the owner, Mrs. White, and •others give evidence tending to show that the Feroe deed was delivered about ■half past one or two o’clock p. m., and before the Reimer deed. The defend

ant’s witnesses say that the Feroe deed was not completed until one or two-o’clock p. m. I think the circumstances support the views of' the defendant. The parties all met at the same place, in respect to both deeds. Reimer had but. to pay the purchase price and take his deed. Feroe could not take his deed until after a new mortgage was drawn on other property, and this would naturally take time, and meanwhile the deed would be withheld. I find that theReimer deed was first delivered. There was no reservation in it of the right, to the water.

There is another disputed question between the owner and Marcy; Mrs. White’s agent, Smith, stating that the plaintiff, before the deed was given, saw the water running in the tub, and asked him about it, and he replied to-him that he would not guaranty that. The plaintiff denies this. I think the agent, Smith, is entitled to credit. He is uninterested, and it is natural that plaintiff should ask, before purchasing, whether or not the water flow in, the tub would be continued, and where it came from. Plaintiff’s deed contained no grant of the right in direct words, or in any way, unless it passed, as an appurtenant to the land. In point of fact, it could not be an appurtenant when the Marcy deed was given, for the right of Mrs. White had then been-conveyed away. Mrs. White had no' right to it, and could convey none by deed. It was not a right which passed as an appurtenant, under the evidence in this-case. Root v. Wadhams, 107 N. Y. 384 , 14 N. E. 281 . The owner never intended to reserve the right, and sold by absolute conveyance. -The purchaser, Reimer, knew of no easement. None was visibly imposed on the same. Wells-v. Garbutt. 132 N. Y. 430 , 30 N. E. 978 . The complaint of the plaintiff should be dismissed, with costs.