165 Mich. 162 | Mich. | 1911
Lead Opinion
(after stating the facts). The sole ques
“ It is a general rule of the law of easements that where the owner of two tenements sells one of them, the purchaser takes the portion sold with all the benefits and burdens which appear at the time of the sale to belong to it as between it and the property which the vendor retains.”
" The matter under consideration was a grant, not a reservation, and in discussing the effect of the grant he further said:
“We should not expect that a. grant of the land on one side of the river only, the grantor retaining the land and mill on the other side, and using the water there appurtenant, conveyed an exclusive, right to the entire water power. . The terms of the grant to complainant are express and seem to be unambiguous. The land is described by metes and bounds. One boundary is the center of the main channel of the river. The mill tract and the mill are within the boundaries. It is the mill privilege and water power 'there situate,’ i. e., appurtenant to the land conveyed, which is deeded, with the right to flow lands*166 and to ‘ use and make use of the water power there situated.’”
Assuming, therefore, that the rule was correctly stated, the case was determined, not by any application of the rule, but by a construction of the terms of the grant. Nor is it applicable to the case under consideration. Here, the sewer was under ground. It was not apparent, and defendants are not shown to have had any knowledge of its existence under the land purchased by them. But, if they had such knowledge, that fact would not be controlling, because complainant knew that the use to which this property was to be devoted would uncover the sewer and, as it existed, destroy it.
Even if it could be said that a grantor under any circumstances could by implication reserve the right to continue an underground sewer in the premises granted, which we do not determine, it would not aid complainant. Here, it is sought by implication to reserve the right to have the existing sewer destroyed and rebuilt in the air through the basement of the tenement to be erected upon the demised lands. Simply to state such a proposition would seem to be a sufficient answer.
The rule applicable to implied reservations of easements is stated in 14 Cyc. p. 1171, as follows:
“As regards implied reservations of easements, the matter stands on principle in a position very different from implied grants. If the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant. To say that a grantor reserves to himself in entirety that which may be beneficial to him, but which may be most injurious to his grantee, is quite contrary to the principle upon which an implied grant depends, which is that a grantor shall not derogate from or render less effectual his grant or render that which he has granted less beneficial to his grantee. Accordingly, where there is a grant of land with full covenants of warranty without express reservation of easements, the best considered cases hold that there can be no reservation by implication, unless the easement is strictly one of necessity.”
The grantor and his privies, under such circumstances, are estopped to claim any interest in the premises so granted. To permit such a claim would be to allow the grantor to derogate from the terms of his grant which, by every applicable principle, is forbidden. The authorities upon the subject are collected and discussed in 10 Am. & Eng. Enc. Law (2d Ed.), p. 420. See, also, 14 Cyc. p. 1169, and cases there cited, and Farnham on Waters & Water Rights, vol. 3, pp. 2454, 2455.
In the recent case of Covell v. Bright, 157 Mich. 419 (122 N. W. 101), which upon principle much resembles the case at bar, we said:
“To entitle the complainant to a decree, the burden was upon him to establish that the servitude was apparent, continuous, and strictly necessary to the enjoyment of his lands” — citing cases.
In New Jersey, a different doctrine for a long time obtained, based upon the ruling in the celebrated case of Pyer v. Carter, 1 Hurlst. & N. 916, and those cases which followed the rule there laid down. Pyer v. Carter has frequently been severely criticised, and was finally distinctly overruled in England. The case of Toothe v. Bryce, 50 N. J. Eq. 589 (25 Atl. 182), contains a review of the English and American cases, questions the soundness' of the doctrine announced by that court in its earlier decisions, and seems to recognize the distinction between an implied grant of an easement and an implied reservation.
While it is apparent from the record that it will be somewhat expensive to dispose of the sewage from com
The case presents this alternative: Either complainant at some, perhaps considerable, expense to herself, must take care of her own sewage and storm waters, or the defendants who purchased and paid for a tenement warranted to be free from all incumbrances, must take that tenement charged in perpetuity with an incumbrance of a very serious character and one which is liable, through the breaking or stoppage' of the drain, to cause serious annoyance and damage.
Why should defendants be compelled to accept this burden ? Why should they be charged in perpetuity with the duty of defraying one-half of the expense of maintaining complainant’s sewer as well as the cost of its original construction ? So far as the record discloses, they have done no act which was not fully warranted by the terms of the grant to them. They have sought to make use of the granted tenement in a lawful manner and in a manner and for a purpose known by complainant before the sale.
Touching the disposition of the storm waters, it is clear that, by the sale of the one-story building upon which it had theretofore been carried to the alley, with the knowledge that said building was to be immediately demolished, complainant must have known that such drainage would be interrupted. The very terms of her written contract show this, because she stipulated for the erection of a brick wall between the premises granted and those retained. This wall was to be 16 inches thick and about 40 feet in height. It is obvious that she could not have contemplated the carrying of her roof waters over that wall. At that moment it was apparent that some new arrangement must be made to care for this water. Defendants did not contract to build a new drain and carry it across their own property to the alley, nor did they agree to construct a new sewer, and we know of no principle of equity which would compel them to do so.
Dissenting Opinion
(dissenting). I am of the opinion that the trial court reached a right conclusion upon the law and facts in this case and that it ought to be affirmed by this» court.
In the case of Smith v. Dresselhouse, 152 Mich. 451 (116 N. W. 387), Mr. Justice Ostrander, discussing the doctrine of implied reservations, quoted, with approval, the following general rule of easements:
“ It is a general rule of the law of easements that where the owner of two tenements sells one of them, the purchaser takes the portion sold with all the benefits and burdens which appear at the time of the sale to belong to it as between it and the property which the vendor retains. Seymour v. Lewis, 13 N. J. Eq. 439 (78 Am. Dec. 108). Every grant of a thing naturally imports a grant of it as it actually exists. United States v. Appleton, 1 Sumn. (U. S.) 502 (Fed. Cas. No. 14,463).”
Mr. Justice Selden, in speaking of this rule, said:
“ This is not a rule for the benefit of purchasers only, but is entirely reciprocal. Hence, if, instead of a benefit conferred, a burden has been imposed upon the portion sold, the purchaser, provided the marks of this burden are open and visible, takes the property with the servitude upon it.” Lampman v. Milks, 21 N. Y. 505.
If we are to take the foregoing rule as our guide in determining this case, I am very firm in the conviction that
Was the easement apparent? “Apparent easements” have been defined to be those the existence of which appears from the construction or condition of one of the tenements so as to be capable of being seen or known on inspection. 10 Am. & Eng. Enc. Law (2d Ed.), p. 405. To this class of easements belongs the bed of a running stream, an overhanging roof, a pipe for carrying water, a drain, or a sewer. Fetters v. Humphreys, 18 N. J. Eq. 262. And the mere fact that a drain or aqueduct, as the case may be, is concealed from casual vision, does not prevent it from being “apparent” in the sense in which that word is used in that connection. Larsen v. Peterson, 53 N. J. Eq. 88 (30 Atl. 1094).
Defendant testified that he did not know that the sewer extended through the premises conveyed to him. If he had no actual knowledge, he did have constructive knowledge of that fact. He had owned for upwards of 25 years premises side by side with the premises in question, with like improvements. He knew there was a sewer which served complainant’s premises because he had the front
Is the easement continuous ? The sewer had been in existence for 20 years, was of a permanent nature, was in use at the time, and was susceptible of being used and enjoyed without making an entry on defendant’s premises, except for the purpose of repair. These facts would clearly bring it within the definition of a “continuous easement.” Larsen v. Peterson, supra.
Is the easement strictly necessary to the enjoyment of complainant’s premises ? The sewer in Farmer’s alley is the only one available for her use. The city engineer testified that one might be constructed to De Visser alley, but that it would be impracticable for the reason that, where it would discharge into that sewer, it would be only 18 inches underground. The topography of that part of the city is such that no other sewer can he constructed which will serve these premises without a prohibitive expense. A cesspool was suggested by complainant; but the city authorities would not permit it. She
In my opinion, the trial court found his way to a very equitable adjustment of the entire matter, and I think his decree should be affirmed.