Johnson v. Jordan

| Mass. | Mar 15, 1841

Shaw, C. J.

In an action of trespass quare clausum fregit, the defendant justifies under a claim of right to enter, and open and cleanse a drain, running from his own house into and through the defendant’s premises, to a sewer in Ridgway’s Lane. If he has such a right, it is a good justification ; it being admitted that he entered for that purpose, and did no damage beyond what was necessary to accomplish it. But the plaintiff contends that the defendant had no right to continue the drain through his premises ; and this is the question for the consideration of the court.

It is very clear that whilst both estates were held by the same, owner, he had a right to carry his drain as he pleased, through any part of his own grounds; and so long as both tenements were owned and occupied .by the same person, no easement was created, or began to be created, in favor of one, and operating as a service or burden upon the other. So long, therefore, as such unity of title and of possession subsists, no right of easement is annexed to one tenement, or charged on another; and it is quite» immaterial how long the drain has subsisted during such owner ship.

If such an owner will convey one of the tenements and retain the other, he may grant the right of drain, or not, to pass with the estate conveyed, or may reserve such a right over the estate conveyed, for the benefit of the one retained, as he pleases. It is matter of contract, and must depend entirely upon the con struction of the conveyance. Supposing this to be clear, the question recurs, what construction will the law put upon a conveyance, where the intention of the parties in this respect is not expressed in terms.

In the first place, it is proper to distinguish an artificial gutter of this description, made for the purpose of draining, from a natural watercourse, the rights of parties to which depend upon a different principle. Every person, through whose land a natural watercourse runs, has a right, publici juris, to the benefit of it, as it passes through his land, to all the useful purposes to which it may be applied ; and no proprietor of land, on the same watercourse., either above or below, has a right unreasonably to divert it from flowing into his premises, or obstruct it in passing from them, or to corrupt or destroy it. It is inseparably annexed to the soil, and passes with it, not as an easement, nor as an appurtenance, but as parcel. Use does not create it; and disuse cannot destroy or suspend it. Unity of possession and title in such land with the lands above it or below it does not extinguish or suspend it.

This case is also to be entirely distinguished from one wherein the declivity of the land and the relative position of the tenements are such, that a drain cannot be formed for the benefit of one, without passing through the other. Such a case might, stand upon a different ground. But in the present case, it was found by the jury, that a drain could be conveniently made, with reasonable labor and expense, from the defendant’s house, xvithout going through the plaintiff’s land.

There are some general and well settled rules of construction of conveyances, which tend in some degree to settle the question. The language of the deed is the language of the grantor; he selects the terms, and it being supposed that he will insert all that has been agreed upon beneficial to himself, and will be less careful to state fully all which is beneficial to the grantee, the language is to be construed most strongly against the grantor.

Another well settled rule of construction is, that a grant of any principal thing shall be taken to carry with it all xvhich is necessary to the beneficial enjoyment of the thing granted, and which it is in the power of the grantor to convey. When therefore a party has erected a mill on his own land, and cut an artificial canal for a raceway, through his own land, and then sells the mill, without the land through which such artificial raceway passes, the right to use such raceway through the grantor’s land shall pass as a privilege annexed de facto to the mill, and necessary to its beneficial use. New Ipswich Factory v. Batchelder, 3 N. Hamp. 190.

Under these rules, it might perhaps be held, that if a man, owning two tenements, has built a house on one, and annexed thereto a drain, passing through the other, if he sell and convey the house with the appurtenances, such a drain may be construed to be de facto annexed as an appurtenance, and pass with it; and because such construction would be most beneficial to the grantee : Whereas, if he were to sell and convey the lower tenement, still oxvning the upper, it might reasonably be considered that as the right of drainage was not reserved in terms, when it naturally would be, if so intended, it could not be claimed by the grantor. The grantee of the lower tenement, taking the language of the deed most strongly in his own favor and against the grantor, might reasonably claim to hold his granted estate free of the incumbrance. Leonard v. White, 7 Mass. 8. Grant v. Chase, 17 Mass. 443.

But neither of tírese rules will apply to the present case, be cause it appears by the deeds themselves, as well as by the other evidence in the case, that the two conveyances from the 'owner of the whole, under which the parties claim, were simultaneous. It is therefore much more like a partition between tenants in common, where each party takes his estate with the rights, privileges, and incidents inherently attached to it, than like the case of grantor and grantee, where the grantor conveys a part of his land, by metes and bounds, and retains another part to his own use, and where the question is, upon the terms of the deed, whether an easement for drainage has been granted with the estate conveyed over that retained, or reserved over that conveyed, for the benefit of that retained.

In the present case, the estates were both owned and- occu pied by Mr. Thacher until the sale made to Mr. Thorndike and Mr. Kendall, under whom the plaintiff and defendant respectively derive title. Both of these deeds bear date the same day. Each refers to the estate described, as this day sold to the other. Both deeds must be taken and construed together. In the deed to Thorndike, an easement for a gutter was created; and in the deed to Kendall, the same is charged as a perpetual servitude, m favor of Thorndike and his heirs. The conveyance to Kendall was made upon an onerous condition never to open windows in any building to be erected on the premises, on the side next to the dwellinghouse conveyed to Thorndike; a condition manifestly designed for the benefit of the estate conveyed to the latter; and in the deed to Thorndike, this restriction upon the estate conveyed to Kendall is recited; intended, no doubt, to show that the estate to Thorndike and his assigns, was thereby enhanced in value. The well known maxim of construction, and a very sound one is, expressio unius exclusio est alterius. Here was a division of these two tenements intimately connected with each other, with detailed provisions in respect of the rights which each should have in the other, and the duties to which each should be subject in favor of the other. If it was intended that one should have a perpetual right of drainage through the other, with a right of entry at all times to repair and relay such drain, especially where it is found not to be necessary to the enjoyment of the estate granted, it seems reasonable to suppose that it would have been expressed. As no such right was expressed, we are of opinion that it was not intended to be granted; and as it was not necessary to the enjoyment of the estate, and had not been de facto annexed, so as to pass by general words as parcel of the estate, it did not pass to the defendant’s grantor by force of the deed. As about' ten years only elapsed after these conveyances, and the consequent division of the two tenements between different proprietors, before the grievance complained of, it is very clear that the defendant derived no right to the easement by actual use and enjoyment. Such a right in the estate of another can be created by actual use, only when such use has been adverse, peaceable, and uninterrupted, and continued for a period of twenty years.

Judgment on the verdict for the plaintiff.