25 N.J. Eq. 70 | New York Court of Chancery | 1874
The bill in this action is filed by Alfred De Luze, a lunatic, by his guardian, to restrain the defendant, Adra E. Bradbury, from drawing off from a certain well situated on the land of the latter, any water, so as to interfere with, impair, or diminish the supply of Avater which, prior to, and at the time of, filing the bill, flowed therefrom to the house of the complainant. It prays a decree establishing the right of the complainant to have that Avater floAv from the Avell referred to, through certain pipes and a tank or reservoir, all of which are also on the defendant’s land, to the complainant’s house, Avithout diminution. The bill states that, on or about the first of May, 1862, Henry Nason and his Avife leased to the complainant the premises now owned by him, situated in the township of Montclair, in the county of Essex, for the term of one year; that the lease, which AATas by indenture, under seal, contained, among other things, the folloAving covenants on the part of the lessors: “ That, during the said term, there shall be a necessary supply of water in the said house, through the Avater pipes now laid therein, and that they, the said parties of the first part will indemnify the said
The bill further states, that afterwards, on or about the date of the lease above mentioned, the complainant and his family entered into the possession and occupation of the premises and of the house thereon, which was a large and commodious residence, and enjoyed them during the term of the lease, or until the conveyance of the property by Nason to the complainant, and during all that time, and up to the making of that deed, the complainant and his family enjoyed the use of a full supply of hot and cold water in and through the house by means of a boiler, wash-tubs, wash-bowls and other appliances erected in the house for the use of the water-there, and that the water was then conducted to the house by means of an iron pipe leading from the house to a small tank or reservoir, which had been erected on other land of Nason and his wife, or one of them, and located on an elevation on the side of the road which runs by the house in a westerly or northwesterly direction, to the top of Mount Prospect, and sufficiently high to furnish head enough to force the water by its own pressure, to the upper rooms of the house; and the tank or reservoir was supplied by earthen or tile pipes, which led from it up the hill and on the side of the same road to the spring or well, from which the water ran through these pipes to the tank, and from there through iron pipes to the house; that the works were constructed by Nason, on his own. land or land owned by him and his wife, at the time previous to the execution of the lease, when he and his wife or one of them, owned the premises leased to the complainant, as well as that on which the tank was erected and the pipes laid y that the works were constructed for the sole purpose of affording a lasting supply of water for the house, no other house-
The answer denies that the premises of the complainant at or before the time of the conveyance thereof to him by Nason and wife, were supplied with water from the spring or well now on the defendant’s premises, and alleges that the defendant has been informed and believes it to be true, that the complainant’s premises were then and until the conveyance from Nason and wife to Graves, supplied with water only from the spring or well on the north side of the road, on other premises than those owned by the defendant; and that when Nason and his wife conveyed to the complainant his premises, Nason proposed and offered to sell and convey to the complainant, also the right to the use of the water from that source, but the complainant refused to buy it and did not do so, but received a vei’bal license to use the water until Nason should want it, the complainant alleging as a reason for not purchasing or acquiring the right, that the supply was doubtful; that the complainant, finding a year or two after-wards, that the supply was very much diminished, abandoned the spring and the supply therefrom, and dug a well on his own premises from which he procured a supply of water, but being unable to force the water therefrom, to all parts of his
The only question submitted is as to the existence of the-easement claimed in the bill of complaint. The evidence is. very contradictory. On the one hand, Mrs. Do Luze swears ■ that the house, which was a new one, and had never been occupied, had, at the time of the execution of the lease, all the appliances for the use of hot and cold water mentioned, in the bill; that Nason represented that the water was from.
The evidence of Nason seems to me to be open to the charge of disingenuousness in some respects. For instance, he seems unwilling to give a direct answer to the question whether he did not tell Mrs. He Luze, while the lease was a subject of negotiation, that the house had a full supply of' mountain water from a never failing spring. Flis statement, as to the tank is liable to the same criticism. He says it was. a box, an old second-hand box which he put in for a tank.. He admits, however, that it was in fact a second-hand box tank which had been used for water in a cottage he had bought. His statement that he provided for blunging the-water to the house merely for the use of the masons in building, does not seem to be entitled to credit in view of the provision of the lease in respect to water:,, and the various-conveniences he had put in the house, the use of which depended entirely on the supply from the tank, from which the water was conducted to the house, not by tile- pipe, or any temporary conduit, but by an iron pipe,, by which it was-brought into the cellar. There is a discrepancy between his-statement that he declined to superintend the work of repairing and improving the works until • Graves’ consent had been obtained, and the evidence of Graves, that he knew nothing of the work until after it had been commenced. Nason expressly swears that there was nothing; at or beyond the end of the tile pipe to collect the water, that is, he denies, and that is the drift of all his testimony.on that head, that there was any well or receptacle for the collection of water for the supply of the tank, im whole or in part, on the south side of the road, until one was made, as he supposed with Graves’ consent, under his supervision
The weight of the evidence is, that-the house was supplied with water from the lower tank, when the complainant bought, and also when he leased the premises; that the tank was then fed by the spring on the north side of the road, and also by the well on the south side. Nason, when he sold to the complainant, owned the premises subsequently sold to Graves. When he sold to Graves, they were subject to the burthen of the easement claimed by the complainant in this suit, and are so still. The easement was continuous and apparent, and the defendant holds her land subject to it. The complainant is entitled to the relief he seeks. Seymour v. Lewis, 2 Beas. 439. The injunction, therefore, will be made perpetual. The complainant is entitled to costs.