9 Del. Ch. 127 | New York Court of Chancery | 1910
The complainant is the owner of a building at the southwest corner of Fifth and Market Streets, and the defendant the owner of the adjoining building fronting on Fifth Street and extending west to Shipley Street. Pipes for conducting the drainage and sewage from the complainant’s building are connected with a main pipe running through the defendant’s building into what is now a public sewer in the bed of Shipley Street, and into this main pipe the drainage and sewage of the defendant’s building also, flows, so that the main pipe into the sewer acts as a common drain pipe for both buildings. To prevent a threatened severance of this connection by the defendant is the object of this bill.
The material facts are that the building now owned by the defendant was built by prior owners thereof between February and May, 1883, and prior to the erection of the building of the
There is in this case no grant of the easement to comply with the statute of frauds, the arrangement above referred to being entirely oral and not in writing, or by deed. The complainant acquired no interest or estate in the defendant’s land by virtue of the agreement, but only a license. At law a license cannot create or transfer any interest in land, and is always revocable though granted for a valuable consideration and though money may have been expended on the faith of it. This principle is stated clearly by Chancellor Bates in his valuable and illuminating decision in Jackson & Sharp Co. v. Phila. etc., R. R. Co., 4 Del. Ch. 180, 191, and in his notes to that case.
There was no contract, either written or verbal, by which there was given to the complainant the perpetual use of the sewer pipe through the defendant’s land for the purpose of draining the property of the complainant, or any contract by which there was any restriction upon the owner of the defendant’s land against the disconnecting of the sewer pipe from the sewer pipes for the complainant’s land. The arrangement concerning the joint use of the pipes was made by the complainant and Whitford, and nothing appears in the record to show any words which passed from one to the other tending to show that there was any concession to the complainant of an enduring privilege. In this case, then, there is no ground for the principle of part performance of an oral express contract concerning an interest in land such as in some cases justifies a court of equity to enforce a contract contravening the statute of frauds. Nor is such a contract to be implied from the acts of the parties. In his bill the complainant does not allege a contract for a permanent privilege, but in his evidence clearly states that he thought he was acquiring such, and Mr. Whitford in his testimony is equally positive that there was no intention to confer such permanent use. It was clearly mutually advantageous that the complainant should be allowed to attach his drain pipe to that in the defendant’s building, for in this way he obtained an outlet not then available for discharging his
Viewing the transaction in question only as a paroi license, and not as a contract, express or implied, it is claimed that by reason of the expenditure of money by the complainant the licensee cannot be put in statu quo, and the defendant is estopped from revoking the license. This means that though the defendant has a legal right to revoke there are equitable reasons why
Viewing the arrangement respecting the pipes, not as giving by implied contract a permanent right to maintain the pipes in all events, but rather as giving the privilege to maintain them there until such time as some other reasonable plan for draining the building of the complainant should be available, by the refusal of the complainant to adopt the new plan above mentioned, it being apparently a reasonably suitable one, the defendant was entitled to relieve itseff of the burden of the privilege given to the complainant, and the complainant could not thereafter insist upon a continuance of the privilege, a further continuance being inconsistent with the implied contract. If, therefore, the complainant has not otherwise acquired an easement to maintain the sewer pipes, the defendant had a legal right to revoke the license, and there was nothing inequitable in its insistence on its legal right to do so. There was no misrepresentation of a matter of fact; the complainant was not misled to his prejudice by the then owner of the defendant’s property, or by the defendant; and there was no conduct of the latter which now renders it an act of bad faith to terminate the privilege or inequitable for it to now exercise its legal right to cut off the pipe of the complainant. If the controversy had arisen soon after the complainant had built his building, or at the time when no other way to drain his building existed, a different conclusion might have been more just. In all cases of this character, the principles of fair dealing must control
In reaching this conclusion great regard is given to the opinion of Chancellor Bates in the case of Jackson & Sharp Co. v. Phila., etc., R. R. Co., 4 Del. Ch. 180, as being alike on several material points. There the bill was to restrain by injunction the taking up a side track made by the defendant at the expense of the complainant to connect the premises of the complainant with the main line of the defendant. Subsequent to the laying of the side track, the complainant expended large sums of money in erecting car works on its lands. After a user of the track for cars passing from the complainant’s works for about seven years the defendant gave notice of its intention to take up the side track. The learned Chancellor held that at law the license to use the defendant’s tracks did not create or transfer any interest in the land, and hence at law such a license is always revocable, though granted for a. valuable consideration, and though-the licensee may have expended money on the faith of it, as it did in paying for the side track and erecting buildings on its land for a business in prosecution of which the track was used. This rule is modified in equity, and the right of revocation will be restrained if there be such conduct as would render the assertion of the legal right a fraud. Speaking of equitable estoppel, the Chancellor said:
"Its effect, when applied, is to restrain a party from exercising his legal right, and this even a court of equity cannot do unless there have been on his part some conduct, declaration or improper concealment", misleading an innocent person to his prejudice and rendering the assertion of the legal right against such person an act of bad faith, amounting to constructive fraud.”
The Chancellor further held that a g'rant of a privilege which was accessory to a permanent business is presumed to be commensurate in duration with the business, and although at first a license, and as such revocable, yet when acted on in the expenditure of money it becomes a contract for a valuable consideration to be enforced in equity as a contract partly performed; yet that this principle must always depend for its
"Looking to all the circumstances of the case, it is my conviction that although the connection of the car works with the railroad was doubtless contemplated on both sides as one to be in fact permanent, yet that no stipulation to that effect was asked or given, or supposed by either party to have been given; but that the arrangement was tacitly left to rest upon the general understanding with respect to such accommodations, Jackson & Sharp either not anticipating the contingency which has now happened, or trusting to the mutual interest and good will of the parties as a sufficient guaranty for the permanence of the connection, without securing it as a legal right according to prescribed forms of law. Their disappointment certainly involves them in no little hardship. But hardship is not a ground for equitable relief, except in favor of one who, without any negligence in securing his rights by the appropriate legal modes, has been misled to his prejudice through some fraud or loches of the party against whom the relief is sought, or by such conduct of the latter as renders it an act of bad faith to take advantage of the mistake.”
It is too violent a presumption, and an unreasonable one, to assume that the privilege granted the complainant was intended to be commensurate with the existence of his building and as a permanent accessory thereto. The utmost limit of the presumed use would be until such time as some ether suitable way for disposing of his sewage into a public sewer was provided. Viewing the facts in the case before the Court in the light of the decision of Chancellor Bates, it is quite evident that it was not the presumed intention of the parties that the privilege should be a perpetual, indefeasible right in all events, and that the land of the defendant should be perpetually burdened by the pipe of the complainant; but the arrangement was tacitly left to rest upon the good will of the parties as a sufficient guaranty of the permanence of the use, so long as no other reasonabfy available plan for draining the complain
Did the complainant acquire a perpetual easement by an open, adverse, continuous use for more than twenty years? There was a continuous user for more than twenty years. The use was open, in that the existence of the pipes was subject to observation and was known to the defendant when it acquired ownership, Whitford being the agent for the grantor or grantors of the defendant as well as agent of the defendant, and his knowledge would be the knowledge of the defendant and the use was acquiesed in by the defendant and its grantors. It remains to be considered whether the user was adverse. The sewer connection was made June 30th, 1883, the then owners of the servient tenement being the Every Evening Publishing Company. By deed dated December 31st, 1885, the Every Evening Publishing Company conveyed the premises to the Every Evening Printing Company, whose charter expired November 15th, 1905, and the trustees for said defunct company conveyed the premises to the defendant on January 15th, 1906. In none of the deeds was there a reservation of the drain or other reference, direct or inferential, to the existence of the drain. The complainant claims that there was a paroi agreement for the easement by reason of which the user was of right, and, therefore, adverse, and also urges that the conveyance of December 31st, 1885, revoked the original license theretofore held as of right, and thereafter the user was adverse.
Several cases were cited by the complainant to show that the use of an easement under a claim of right by virtue of a paroi contract or agreement is adverse. Stearns v. Janes, 12 Allen (Mass.) 582; Legg v. Horn, 45 Conn. 409; Arbuckle v. Ward, 29 Vt. 43; McKenzie v. Elliott, 134 Ill. 156, 24 N. E. 965; Talbott v. Thorn, 91 Ky. 417,16 S. W. 88; Boyd v. Woolwine, 40 W. Va. 282, 21 S. E. 1020; Jewett v. Hussey, 70 Me. 433. But the cases in Delaware do not so hold. Here, if the user originates by permission, an easement cannot be acquired by continued
“The right of way by usage must be on proof of uninterrupted, adverse usage for twenty years and upwards, in opposition to the owner of the land, and without any reference to a permission or license from him.”
The case of Pennington v. Lewis, 4 Pennewill, 447, 56 Atl. 378, was an action of trespass quare clausam fregit. The locus was an alley or driveway between the land of the plaintiff and defendant. The defendant claimed paper title to one-half of the alley and also an easement in all of it by user. The Court charged the jury in general terms as to the acquisition of an easement by user:
“If such use was not under a claim of right, but under a license or permission from the owner of the land, a right of way by prescription could not thereby be acquired; since a license negatives adverse right.”
Other Delaware cases, O’Daniel v. Bakers’ Union, 4 Houst. 488, and Clawson v. Primrose, 4 Del. Ch. 643, do not throw any light on the question considered here. The case of Cooper v. McBride, 4 Houst. 461, is instructive with reference to the case under consideration. There owners of land on an alley leading to a public road made an arrangement by which the owner of land farthest from the road should have a right to use the alley to reach the road if he would move back his fence in order to widen the alley. This was done and the use of the alley in common by the owners of the two lots continued for more than twenty years, and until the owner of the servient tenement put a gate across the mouth of the alley at the public road. This gate the defendant, owner of the dominant tenement, broke down, and hence the action of trespass, to which the defense was the easement. The plaintiff’s predecessor in title had the right to the alley before the arrangement above preferred to was made, and gave the defendant’s predecessor in title the right to use the alley upon his doing some act, viz., setting back his fence. In that case the Court, according to the complainant, should have instructed the jury that the defendant’s user of the alley
“For notwithstanding the use oí it by the defendant, and those under whom he claims, may have commenced by the permission of the owner of it, and if so, is presumed to continue by permission, yet it might become at any time afterward adverse in its character upon its being used and enjoyed as a right and in hostility to the rights and title of the owner of the soil; and in case such an adverse use so acquired has continued uninterruptedly for twenty years, it will have grown and matured into a right of way which cannot be successfully controverted or resisted by the' owner of the ground over which it is claimed. But the legal presumption of the continuance of the permission in such a case, may be rebutted and denied by any evidence sufficient to satisfy the jury that after the permission was granted, the way was used and enjoyed adversely and under a claim of right.”
The Court must have meant, and it must be true in principle, that if there is a permission or consent of the owner of the servient tenement to the user at the time when the user began, the subsequent user does not become adverse, unless there be something said or done showing that the continued user was thereafter under a claim of right arising otherwise than from the original permission and be so continued for twenty years uninterruptedly. If this be not so, then there is no meaning to the rule that an easement cannot be acquired by prescription if the user was permissive, and that the user must be adverse or hostile. The claim of right must be based on something other than the original transaction, if that be a permission, for its continuance as a permission is presumed until rebutted. There is a presumption of a grant from user, without evidence to explain how it began, and satisfactory evidence which accounts for the use otherwise than under a claim or assertion of right rebuts and defeats the presumption. Garret v. Jackson,
In this case before the Court there is nothing, either word or deed, to show that the permission given did not continue to the time of the threat to disconnect the pipes of the complainant, except the conveyance of the servient tenement, and unless this operated as a revocation, so that thereafter the user was by reason of the conveyance hostile and adverse, and such later user so continued for more than twenty years, the complainant - did not acquire the easement to maintain the pipes to discharge his drainage through the pipes on the defendant’s land. But whether the principle contended for by the complainant’s solicitor, that user by virtue of a paroi agreement granting it was adverse, be correct or not, there was in this case no actual, clear agreement such as was shown in the cases cited by the counsel for the complainant. The case of Stearns v. Janes, 12 Allen (Mass.) 582, was a typical one. There in an action of trespass the defendant relied on a right to use a well on the land of the plaintiff and a way to it by user. The well was dug at the mutual expense of the then owners of the lands of the plaintiff and defendant, and the Court charged the jury:
“If the jury were satisfied that the original parties to the transaction dug the well under a verbal contract that they should own and have the right to use the well and the way in common, and thereupon the defendant and his grantors began and have since continued the use under a claim of right, such use would be adverse and would ripen into a title.”
The Court on appeal approved the charge and held:
“If the use of a way is under a paroi consent given by the owner of the servient tenement to use it as if it were legally conveyed, it is a use as of right. * * * But the character of the use or occupation depends upon the language used and the manner of the enjoyment. If the language is such as to create only a license or a lease, the enjoyment is regarded as permissive, and not as of right, and no title is acquired by it.”
In the case at bar there is no súch agreement. The complainant and the predecessor in title of the defendant did not together and at joint expense construct a common drain pipe for the building of both, under an agreement that the complainant should thereafter have perpetually, or for any length
It is claimed by the solicitor for the complainant, and admitted by the solicitor for the defendant, that the conveyance of the servient tenement without a reservation operated as a revocation of the right. The complainant draws the conclusion that after the conveyance in 1885, the user was adverse because of such revocation of any previous permission. No authority for this latter proposition is shown except the case of Eckerson v. Crippen, 110 N. Y. 585, 18 N. E. 443, 1 L. R. A.
Briefly stated the conclusions are: (1) That there was no express or implied contract that the complainant should have a permanent indefeasible right at all events to maintain his drain pipe connected with the pipe in the defendant’s building, but at most to maintain it until some other reasonably suitable method of disposing of his drainage into a public sewer was available. (2) That inasmuch as there was such other method now available, it was not inequitable not to restrain the defendant from
In view of the conclusion reached it is unnecessary to pass upon some other questions raised by the solicitor for the defendant, including the contention that the defendant had no legal right to grant the permission originally given, because to do sc would violate the rules of the Shipley Street Sewer Company, as to which matter much testimony was taken and elaborate argument had on both sides. The conclusion, therefore, is that the complainant has not established the right to continue to connect his drain pipes with that of the defendant, and the defendant had and has a right to sever the connection. The restraining order will be dissolved and the bill dismissed with costs against the complainant. But inasmuch as it would be unreasonable to allow the sewer connection to be severed without some opportunity to the complainant to make some other arrangement for disposing cf his drainage, if an application be 1 made by the complainant to delay for a reasonable time the making of the order proper under this opinion, the application will be granted.