94 Mass. 459 | Mass. | 1866
This action of tort is brought to recover damages for the acts of the defendant on his own land, who has cut off a pipe by which water was conducted from a spring thereon, and has contaminated the water which flowed through said pipe to the plaintiff’s premises. The lot on which the spring is situated was part of a farm owned by Thomas F. Plunkett, and conveyed to the defendant by Plunkett by a deed dated March 27th 1850, containing the following clause : “Also reserving to myself, my heirs and assigns, the right of taking so much water forever from the spring situate on the lot last above described, and from which water is now taken in a pipe to supply the grounds of W. H. Tyler, as now runs in said pipe, so long as said pipe lasts, together with the right to replace the same with a pipe of one and one quarter inch inside calibre, and also the right of taking so much water from said spring as will run in said pipe of one and one quarter inch calibre, when thus substituted for the present pipe, together with the right to enter and repair said aqueduct at all times, it being understood that I am to pay such damages as may be from time to time occasioned to the crops and land by said repairs, and said Burbank, his heirs and assigns, is not to molest said Plunkett, his heirs and
But the defendant insists that such an interest is a predial servitude, in its nature inseparably annexed to some estate, apart from which it cannot be enjoyed; that if regarded as an easement in gross, it is necessarily of a purely personal character, incapable of assignment or inheritance, belonging to Plunkett alone for his personal benefit.
This proposition requires examination. There are dicta, perhaps authorities, to the effect that an easement proper, like a way in gross, cannot be created by grant, so as to be assignable or inheritable. Washburn on Easements, 80. Ackroyd v Smith, 3 0 C. B. 187. However the law may be elsewhere,
In the case of rights of profit á prendre, it seems to be held uniformly that, if enjoyed in connection with a certain estate, they are regarded as easements appurtenant thereto, but ii granted to one in gross they are treated as an estate or interest in land, and may be assignable or inheritable. Post v. Pearsall 22 Wend. 425. Washburn on Easements, 7. The right to take water from a well or spring is held to be an interest in land although not a profit á prendre, and may be claimed by custom. Race v. Ward, 4 El. & Bl. 702. And we are aware of no case which denies that the right to an aqueduct may be so created as to exist independently of any particular parcel of land owned by the grantee thereof, and be enjoyed by him and his heirs on any estate which he or they may own or acquire, and be capable of assignment or conveyance in gross. The water itself may not be the subject of property, but the right to take it and to have pipes laid in the soil of another for that purpose, and to enter upon the land of another to lay, repair and renew such pipes, is an interest in the realty, assignable, descendible and devisable. On this subject the language of Judge Curtis is as follows : “ I know of no rule of the common law which prohibits grants of the incorporeal right to divert water from being made in gross. If I have a spring, I may sell the right to take water from it by pipes, to one who does not own the land across which the pipes are to be carried, and
besides cases cited in the opinion, cited Senhouse v. Christian, 1 T. R, 560; Ashley v. Pease, 18 Pick. 268; Boreel v. Mayor
In the present case it does not appear that the change in the direction or location of the pipe after it leaves the land of the defendant has increased the quantity of water taken from the spring. We are therefore of opinion that this action can be maintained; and, the judge who presided at the trial in the superior court having ruled otherwise, the exceptions are sustained.