85 Md. 215 | Md. | 1897
delivered the opinion of the Court.
The appellant sued the appellee for damages alleged to have been sustained by him by reason of the latter’s interfering with his use of a well of water in Hancock, Md. We find from the record that Dr. W. H. H. Miller was the owner of two contiguous lots of ground in that town, which he improved by erecting thereon a double brick house. In the rear there was a well of water on or near the division line between the two houses. There was a fence dividing the lots connected with the two houses, and in the fence there was a gate near the well. During Dr. Miller’s ownership of the property he occupied the west side and rented the east side. He and his tenants used the well in common, and he testified that “ the well of which I have spoken and the houses were so constructed that the occupants of both sides of the house could have free access to the well for the use of the water;” that the tenants “ were entitled to the use of the water, and the houses were so constructed so as to give them the undivided right to it.” While that condition of affairs continued, on November 22, 1856, Dr. Miller sold the west side of the property to Lewis B. Evans, who on the 12th day of July, 1859, conveyed it to Dr. James B. Delaplane. The latter having died, it became vested in his widow and children, and the appellant claimed under them
As long as one person owned both properties it could not properly be said that an easement existed in favor of one of them, as the owner could not have an easement in his own land. But whilst that is true, it is also well settled that if during the unity of ownership the owner of two properties uses one for the benefit of the other in such manner as would have given rise to the presumption that an easement existed, if the tenements had been held by different persons, then upon a conveyance of the property so used an easement will be granted to the purchaser, provided the use has been such that the easement resulting from it would be of the class known as continuous and apparent, and would be necessary for the reasonable enjoyment of the property conveyed. The difficulty that often presents itself is the determination of the question whether the facts of the particular case before the Court bring it within that class.
There has been confusion in some of the cases because they have not distinguished between implied grants of easements and implied reservations. By no Court has the distinction been more clearly defined than in the case of Mitchell v. Seipel, 53 Md. 251, where Judge Miller delivered an able and exhaustive opinion on the subject. The reason for sustaining implied grants is apparent as “ a grantor shall not derogate from his grant,” and when he intends to limit, restrict or burden the use of property conveyed by him for the benefit of property retained, he should express his intention in language that is not easily misunderstood. Whilst Courts should not be too ready to sustain grants by implication, yet if at the time of the purchase of property there are visible and apparent easements and privileges annexed
In Janes v. Jenkins, 34 Md. 1, it was 'said, “Whenever, therefore; an owner has created and annexed peculiar qualities and incidents to different parts of his estate (and it matters not whether it be done by himself or his tenant by his authority), so that one portion of his land becomes visibly dependent upon another for the supply or escape of water, or the supply of light and air, or for means of access, or for beneficial use and occupation, and he grants the part to which such incidents are annexed, those incidents thus plainly attached to the part granted, and to which another part is made servient, will pass to the grantee as accessorial to the beneficial use and enjoyment of the land.” Again it was there said, “ The grantor being the owner of both tenements could, for the benefit of the tenement granted, fix upon his remaining tenement any servitude he thought proper. That being so, the relative rights and incidents of the two tenements must be taken as fixed at the time of severance by the first grant; and unless restrictive words are used, each will retain as between the two all such incidents and easements as are then openly and visibly attached to and used by it.” It is true there have been many decisions to the effect that an ordinary way, not being a way of necessity, which has been used during the unity of ownership, will not
In the case now before us there is evidence to the effect that the well was, at the time Dr. Miller sold the lot to Dr. Delaplane’s grantor, used by the occupants of both properties as if it belonged to both, and that it was so used that it could fairly be inferred that it was the intention and expectation of the parties that the use of it should continue after the sale. The quasi easement was apparent — it was visible to any one going upon the premises. In addition to the fact that there is some evidence that at least a part of the well is on the Delaplane property there has been either a gate or a door on the division line since the houses were built by Dr. Miller. Prior to 1869 there was a gate in the fence, and sinc'e then a door in the wall of the Delaplane house, which was then extended along the division line. The door is where the gate was. There was for nearly thirty years before the defendant purchased his property an uninterrupted user of the gate or door, the approach to the well and of the well itself by the occupants of the Delaplane property. The door and gate were only three or four feet from the pump, and according to the testimony offered on behalf of the plaintiff, Dr. Delaplane and his
Other authorities might be cited, and some of those relied on by the appellee distinguished from this case, but it is unnecessary, as we think there was sufficient evidence on all the material questions to be submitted to the jury, and there was therefore error in granting the defendant’s prayers — the first of which instructed the jury that the plaintiff had offered no legally sufficient evidence to entitle him to recover, and the second that under the pleadings and evidence he was not entitled to recover.
The plaintiff’s first prayer ought to have submitted to the jury the question whether the use of this well was necessary for the reasonable enjoyment of the property, and also whether at the time of the sale from Fite to the defendant the well was so used and the state of the premises such as to be notice to the defendant that there was this servitude on the property purchased by him. The prayer was defective in not submitting those questions. His second prayer was properly rejected althoügh the theory of it that this easement could be acquired by prescription is correct. But the latter part of it assumes that there was a continuous user by the owners and occupants of the Delaplane property since 1856. The third was also properly rejected. It asked the Court to instruct the jury that if they found that the defendant knew that the plaintiff had a right to use the doorway so as to get water then they were not confined to the actual damages sustained by the obstruction nor the inconvenience and expense the plaintiff was subject to, “but may find such further damages as the facts and circumstances accompanying the acts of the defendant may warrant, taking also into consideration the motives of the defendant.”
It proceeds upon the theory that the plaintiff was entitled to punitive damages merely because the defendant had knowledge of the plaintiff’s right to use the doorway, &c.
For error in granting defendant’s first and second prayers the judgment must be reversed.
Judgment reversed with costs, and new trial awarded.