43 N.J. Eq. 62 | New York Court of Chancery | 1887
The complainant claims a right of drainage through the land of the defendant, and this suit is brought to vindicate the validity of his claim. The right claimed, if it exists at all, is appurtenant to a tract of land which the complainant purchased of James M. Trippe in the spring-of 1867. At the time of the complainant’s purchase, Mr. Trippe owned a tract of land in the city of Orange-containing about three acres, bounded on the north by a public way, now called Central avenue, on the east and south by land of Eichard B. Harrison, and on the west by a natural stream known as Parrow brook. The complainant’s purchase consisted of a strip fifty feet in width, lying within about ninety feet of the eastern ■ boundary of the tract just described, and extending from the public way, now called Central avenue, to the land of Eichard B. Harrison on the south. The great bulk of the land still held by Mr. Trippe, after the complainant’s purchase, lay to the west of the strip purchased by complainant. Title to the land purchased by complainant was made to Charles "Wiley on the 5th of March, 1867. Mr. Wiley advanced the purchase-money for the complainant, and took title to the land simply as security. The land in equity belonged to the complainant, and the legal title to it was conveyed to him on the 30th of May, 1874. The complainant erected a dwelling-house on the land in the early part of 1868, and took possession of it, with his family, in July of the same year, and has since resided there continuously.
The complainant, by his bill, alleges that for many years prior to his purchase, there had existed, as a means of drainage, an open ditch on the Trippe tract, running through its centre, and extending from its eastern boundary to Parrow brook; that it was there, serving as a drain, at the time of his purchase, and then constituted the only means of drainage which the land he purchased possessed, and was one of the principal reasons which induced him to purchase. He also says, that the ditch has, since his purchase, been continuously used as a means of drainage for his and the adjacent lands up until September, 1884, when the defendant wrongfully closed it at the point where it intersects
The defendant does not deny that she obstructed and closed a ditch extending from the complainant’s land to hers, but she does deny that, at the time of the complainant’s purchase, a ditch existed on the Trippe tract, as an apparent and continuous means of drainage, but says, that the ditch which she closed was a subterranean drain, which the complainant and others constructed subsequent to his purchase. Her averment respecting the origin of the drain which she closed is this : She says, that the complainant and other persons who purchased parts of the Trippe tract, lying between the complainant’s land and her land, so changed the natural surface of their lands, by filling and grading, after the complainant’s purchase, as to cause the water which, prior .to such change, flowed off evenly over the surface, to collect and stand on their lands, and that they then, in order to relieve their lands from the water thus collected, conducted the water to her' land, and there discharged it in bulk at one point. And this, she says, is the drain which she closed.
The evidence leaves no doubt respecting what the truth is, as to whether or not a ditch of the kind described existed on the Trippe tract prior to, and at the time of the complainant’s purchase. The fact that there was a ditch there, at that time, and that it had existed there for a long time anterior to that date, is established, I think, beyond doubt. The natural formation of the land was such, as to render it almost certain that the water would make a channel for itself, at the point, where it is claimed the ditch existed. That was the lowest point in the Trippe tract, and the declivity of the adjacent lands on the north, east and south was in that direction. The natural condition of the land, adjacent to the ditch, was such as to render a ditch or drain, of some kind, indispensable to the reclamation of the land.
The proof furnished, by the recollection of witnesses, of the existence of the ditch prior to, and at the time of the complainant’s purchase, is of the most ample and convincing character. Richard B. Harrison, now over eighty years of age, and who has owned land adjacent' to the Trippe tract, on the east and south, since 1828, swears, that a run has existed through the middle of the Trippe tract ever since he can remember anything, and that he is positive that it was there while Edward Pierson owned that tract, and also while Barnabas Day owned it. This tract was conveyed by Pierson to Day in 1841, and by Day to Trippe in 1854. ’With regard to the origin of this run Mr. Plarrison says, nature formed it first, but somebody cleaned it out afterwards. Fifteen other witnesses, who have been intimately acquainted with the Trippe tract for periods, extending from twenty to thirty years last past, swear positively to the existence of the ditch prior to the date of the complainant’s purchase. They describe it as an open ditch, carrying water most of each year, seldom dry, three or four feet in width, about two feet deep, extending from the eastern boundary of the Trippe tract, through its centre, to Parrow brook. They also say, that when they first knew it, its appearance indicated that it had been in existence for many years; bushes, such as alders, briers, and other brushwood, were growing on its bank, showing a growth of several years, and also rendering the line of the ditch
The evidence on the part of the defendant fails, in my judgment, to break the case made by the complainant’s proof at a single point. No proof whatever was offered, tending to show that a subterranean drain, as an original affair, had been constructed subsequent to the complainant’s purchase. The whole of the proof offered on this point simply shows, that some of the lot owners have covered that part of the original ditch, which runs through their land with large flat stones, so as to make the passage from one part of their land to the other, across the ditch, easy and convenient. The defendant’s proofs, on the main
The fact is established, I think, beyond dispute, that for years prior to the complainant’s purchase a ditch existed through the
This principle has been repeatedly recognized and enforced in this state. Brakely v. Sharp, 1 Stock. 9; S. C., 2 Stock. 206; Seymour v. Lewis, 2 Beas. 439; Fetters v. Humphreys, 3 C. E. Gr. 260; S. C. on appeal, 4 C. E. Gr. 471; Denton v. Leddell, supra; De Luze v. Bradbury, 10 C. E. Gr. 70; Stuyvesant v. Woodruff, 1 Zab. 133; Central R. R. Co. v. Valentine, 5 Dutch. 561. Three things are essential to the creation of an easement by this method: first, a separation of the title; second, that, before the separation takes place, the use, which gives rise to the ease
There can be no doubt, therefore, that the complainant, when he acquired title to part of the Trippe tract, also, by force of this legal principle, acquired a right of drainage over the remainder of that tract lying to the west of his land. Nor can it be doubted that the complainant's injuries are the proper subject of equity cognizance. The defendant's act results in inundating the complainant's land with water, whenever snow melts, or a rain of a few hours' duration occurs, thus rendering the occupation of his dwelling uncomfortable, unhealthy and dangerous.
The complainant is entitled to a decree compelling the defendant to remove the obstructions which she has placed in the ditch, and to restore the ditch to the condition in which it existed, at the time his right to its use accrued, and to refrain in the future, from all acts which will deprive the complainant of its full enjoyment for all proper purposes. The complainant is also entitled to costs.