117 Me. 536 | Me. | 1918
Bill in equity. The docket entries in the court below, made part of the record, show that the sitting Justice made a finding sustaining the bill, from which appeal was taken, but upon a later date, by agreement of parties, the same Justice signed an order to report the case to this court, which tribunal is to determine the cause “according to the equitable rights of the parties.”
Comparatively few issues of fact exist. From a careful consideration of all the evidence we think the following statement of the case is correct.
The plaintiffs are respectively son and daughter of Joseph W. Davis, who died in 1904. The defendants are 'respectively widow and daughter of Judson Briggs, who died testate in 1906. By the terms of the latter’s will all his estate was devised to these defendants. Since the beginning of these proceedings Mrs. Briggs has died and Mrs. Henderson, her daughter and co-defendant, and executrix of her will, defends individually and as such executrix.
On May 1, 1894, Joseph W. Davis, owned a double tenement house situated on the easterly side of Briggs Street in the Village of Brown-ville, while at the same time Judson Briggs owned a homestead on land adjoining the Davis property on the south, and also a stable and three tenement houses on land adjoining the Davis property on the north. Briggs Street runs in a northerly and southerly direction. Parallel to and easterly from Briggs Street, and between one hundred and fifty and two hundred feet distant thereform, is Church Street. Between the easterly line of the Davis land and the westerly line of Church Street is land known as the Dunning land. From the latter land, passing some distance northerly along Church Street, we come
In the year 1894 Judson Briggs and Joseph W. Davis entered into an agreement substantially upon these terms; Briggs was to complete a partly constructed water-pipe from the spring to the Dunning land,while Davis was to lay a connecting pipe from Church Street, across the Dunning land, across his own land to his own house, permit Briggs to tap the connecting pipe with a tee to his homestead on the south of, and his stable and tenement houses on the north of the Davis house. Davis was also to pay Briggs the sum of fifty dollars. When all this was done Davis was to have water from the spring without any limit of time thereto being agreed upon. The water-pipes were laid, the connecting tees attached and used by Briggs, the fifty dollars paid, and from that time, during the remainder of the life of Judson Briggs, a period of about twelve years, and for the further period of about five years after his death, Davis and his' heirs, these plaintiffs, received water from these pipes without charge or demand of payment for any water thus received. On the twenty-second of August, 1911, Mrs. Henderson notified the plaintiffs that the water would be cut off unless arrangements were made by August twenty-eighth, and thereafter the pipe was cut by Mrs. Henderson and the supply ceased. The plaintiffs ask this court to order the defendant to re-connect the severed pipe and to thereafter refrain from any act which would prevent the enjoyment of this water supply.
What are the "equitable rights of the parties” which we are to determine. The plaintiffs claim an easement. This the defendants deny.
An easement is defined to be a right in the owner of one parcel of land, by reason of such ownership, to use the land of another for a specific purpose, not inconsistent with a general property in the owner, a right which one proprietor has to some profit, benefit, or' beneficial use, out of, in, or over the estate of another proprietor, 2 Washburn on Real Property, 25; Pomeroy v. Mills, 3 Vt., 279. Our own court, in Bonney v. Greenwood, 96 Maine, 335, said that an easement may be concisely defined as a privilege without profit which one has, for the benefit of his land, in the land of another. But as to the
In Shurtleff v. Wiscasset, supra, we find our court, in no uncertain terms, declaring that an estoppel may grow out of a long continued acquiescence in or enjoyment of the fruits of a contract. In the case at bar a contract was made by Davis and Briggs. The contract, so far as Davis was concerned, was fully completed according to all its terms. The convenience, the benefits, the fruits of that contract were enjoyed and acquiesced in by Briggs during all the rest of his life, and for about five years thereafter by these defendants. The pipe laid by Davis afforded a conduit for the water to the homestead, tenements and stable of Briggs. The money paid by Davis to Briggs, in part at least, defrayed the expense incurred by the latter in extending the pipe from its prior terminus to the Dunning land. Briggs and his successors in title having thus, and for so long a time, enjoyed and acquiesced in the fruits of that contract, we have no hesitation in declaring, under the rules already referred to, that by equitable estoppel an easement was created in favor of Davis, a right to have the Davis pipe connected with the pipe laid by Briggs, and to have a flow of water through it uninterrupted by any act of the defendants.
In more concise language it was said in Lidgerling v. Zignego, 77 Minn., 421, 80 N. W., 360, 77 Am. St. Rep., 677, that “an easement is appurtenant, and not in gross, when it appears that it was granted for the benefit of the grantee’s land.”
Without reiterating the facts as they appear in the record, the gist of which has been already, stated, the court is clearly of opinion that the easement created is an easement appurtenant, running with the land, and hence enjoyable by the plaintiffs who are heirs of Joseph W. Davis.
Jt is therefore the opinion of the court that the defendants should forthwith, without expense to the plaintiffs,’ reconnect the severed pipe and thereafter refrain from interfering with or interrupting the natural flow of water from the spring through this connected pipe. The mandate will be, bill sustained; with costs.
Case remanded to the court below for the preparation and execution of a decree in accordance with this opinion.