86 N.Y. 246 | NY | 1881
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *248 The deed from the defendant to the plaintiff conveyed the premises therein described by metes and bounds "with the appurtenances and all the estate, title and interest therein of the said party of the first part," and contained the following covenant: "And the said William Collins doth hereby covenant and agree to and with the said party of the second part, her heirs and assigns, that the premises thus conveyed in the quiet and peaceable possession of the said party of the second part, her heirs and assigns, he will forever warrant and defend against any persons whomsoever, lawfully claiming the same or any part thereof."
The question to be determined is whether the right to use the sewer over the land of Albertson's, which was adjoining, was not a legal appurtenance to the premises within the meaning of the deed, and a failure of the plaintiff to enjoy such right by means of a paramount title was a breach of the covenant of quiet enjoyment or of warranty contained in such *250
deed. The language of the deed of itself does not convey to the plaintiff a right to use her premises in such manner as would create a nuisance upon the land of the adjoining proprietor. The words "with the appurtenances" cannot affect the rights of the parties or enlarge the scope of the deed, as the appurtenances would pass without such words, for it is a general rule that whatever is in use for the land as an incident or appurtenance is conveyed by the deed. (Huttemeier v. Albro,
The case of Adams v. Conover (22 Hun, 424), decided in the Supreme Court, holds that it is not necessary that the appurtenances of land conveyed, i.e., the right to overflow adjoining land, should be specially described in the deed. This rule was laid down in the case cited upon the authority of the decision in the case at bar in the Supreme Court. The exact terms of the deed in the case cited were not before that court, and the construction given is based upon the assumption from oral evidence that it was an ordinary warranty deed. It may also be remarked that, in the conveyance of a mill site, the water privilege is a most important element of value, and hence, in determining what shall pass as an incident appurtenant to that in the terms conveyed by the grant, it is the necessity of the mill and its free enjoyment which controls. (Voorhees v. Burchard,
From the discussion already had it is entirely obvious that the judge erred in denying the motion made by the defendant's counsel for a nonsuit, upon the ground that it was not shown that the defendant, at the time of the execution and delivery of the deed, had an easement or a right to drain into the sewer in question the privy and sink deposits; that they were not mentioned in the deed, and that there was nothing to show the intent to convey such right to the plaintiff, and also in refusing to charge as requested by the defendant's counsel, that the plaintiff must show that the defendant had an easement and right to drain the privy and sink deposits upon the lands of Albertson at the time of the delivery of the deed.
Another question is raised as to the effect of a settlement alleged to have been made between the parties. It was proved upon the trial that Albertson commenced an injunction suit against the plaintiff to perpetually restrain the use of the main sewer for the purpose of draining the water-closet, and discharging the drainage upon the land of Albertson, and the defendant entered into an agreement with the attorney of the plaintiff, by which he obligated himself to pay the plaintiff all damages and costs which should be adjudged in said suit; also to dig and stone up a cess-pool upon the premises, and to connect the pipes of the water-closet in the house with the same. This agreement was fulfilled by the defendant, and all damages and costs paid. We are unable to see, if actually made as a settlement, *256 why it was not final between the parties, and a waiver of the plaintiff's claim to recover damages in this action. The difficulty, however, is that, while the question whether the agreement was made as a full settlement of the plaintiff's claim was submitted to the jury by the judge in his charge, no distinct point appears to have been raised or exception taken as to its legal effect, and therefore we are not called upon to determine whether it was conclusive. Without passing upon this question for the errors which have been discussed, the judgment should be reversed and a new trial granted, with costs to abide the event.
All concur, except FOLGER, Ch. J., absent at argument.
Judgment reversed.