53 N.J. Eq. 88 | New York Court of Chancery | 1894
The object of this bill is to establish and protect complainant’s right in, and enjoyment of, an easement.
The circumstances, which are not open to serious dispute, are peculiar. For some years prior to and on the 1st day of June, 1893, Mrs. Elizabeth Mabey, of Montclair, Essex county, was the owner of a lot of land fronting on Elmwood avenue, in that ■city, upon which was a double frame dwelling, comprising, under -one roof, two complete dwellings, separated only by an ordinary lath and plaster partition, without any openings. Some years before that date she had procured a well to be drilled in the ■earth and underlying water-bearing rock in the rear of this building, and had laid therefrom two independent water-pipes placed in the earth, leading to the dwelling, one into the sink of each kitchen. Each dwelling was supplied with an ordinary hand-pump, and in this manner, and in no other way, each of the separate dwellings was supplied with water. There was ■nothing visible on the ground in the rear of the house to indicate the existence of a well or its connection with the dwelling, and there was no water-main in the street.
This being the situation, Mrs. Mabey, in the spring of 1893, was minded to sell this property, but was unwilling to sell a part without the whole. At the same time, both complainant and defendant were desirous of purchasing houses for their individual use, and, hearing of this property, called together on Mrs. Mabey — that is, complainant and John Peterson, acting as agent for his wife — and looked at the property. They looked at only one of the dwellings — that in. the actual occupation of Mrs. Mabey, the other being in the occupation of a tenant — and were informed, and truly, by Mrs. Mabey, that the two dwellings were precisely alike in all respects, and,
At the hearing thdre was no contention that the well did not supply water enough for both families, or that complainant had made an unreasonable use of it.
The above are the facts as I have found them. Peterson does, indeed, deny that he was told on the occasion in question that-the other dwelling had a pump like the one they inspected, or-that there was but one well for both houses. But the contrary is supported not only by the evidence of complainant, but also, by that of Mrs. Mabey and her daughter, both disinterested witnesses — or rather, if they have any interest, it is against complainant, since Mrs. Mabey gave Mr. Peterson a warranty deed —who gave their evidence in a way to command the belief of the court. Besides, Peterson does not deny that he saw the pump and heard that it was supplied with water from a well, but does deny that he was told that the other dwelling was similarly supplied. But he knew that both dwellings were a. part of one building, and that in external appearance they were-precisely alike; that the other dwelling was occupied; he fixed the value of the choice between the two houses at only $10, which was due, as he admits, to a difference in the size of the front yard, which would necessarily result, as shown by the plot, from a division of it in the way proposed and agreed upon. He does not contend that his choice was due to any supposed difference in the interior of the houses, or to the presenc’e of water in one and its absence in the other, or that he supposed that each house had an independent supply of water. These circumstances render it highly improbable that he did not, in some way, learn that both dwellings were supplied with water in the same way and from the same source. It was, to say the least, not probable that the proprietor of such a lot and building would incur the expense of an independent water-supply to each dwelling.
Upon this case, the complainant, in his able brief, makes two points which support each other, and either of which, standing' alone, he contends, entitles him to relief. First. That the well and aqueduct running therefrom to complainant’s house constitute
It seems to me that the controlling question is, whether the arrangement for the supply of water to complainant’s house constituted what is known to jurists as a “continuous and apparent” easement, which was “necessary” in the sense in which that word is used in that connection, for the comfortable use and •occupation of the complainant’s premises.
As to the quality of its being “apparent,” the fact that it was, in part, hidden in the earth, and so not physically apparent to the eye, is not conclusive. The part on complainant’s land — the pump — was visible, and the water must have come either from the land actually conveyed to him or from that conveyed to Peterson. Independent of the actual notice, I am of opinion •that Mrs. Peterson, under the peculiar circumstances of this case, is chargeable with notice that there was such a pump on the complainant’s tenement, and that it might connect with the well •or cistern on the part that was conveyed to her.
It seems to be well settled that the mere fact that a drain or aqueduct, as the case may be, is concealed from casual vision, does not prevent it from being “ apparent ” in the sense in which that word is used in that connection. The aqueduct, in Nicholas v. Chamberlain, 2 Cro. 121; the drain, in Pyer v. Carter, 1 Hurlst. & N. 916; the aqueduct, in Watts v. Kelson, L. R. 6 Ch. 166; in Brakeley v. Sharp, 1 Stock. 9 and 2 Stock. 207; in Seymour v. Lewis, 2 Beas. 439, and in Toothe v. Bryce, 5 Dick. Ch. Rep. 589, were all buried beneath the surface and not visible
It is true that, in each of the cases of aqueducts above cited, both ends of the pipe — as well that from which the flow of water’ came as that to which it was carried — were probably visible, while here only that end was visible which was on the dominant tenement; but I am of the opinion that where, as here, and in Toothe v. Bryce, the dominant tenement is conveyed and theservient tenement is reserved, the controlling fact is that the-existence of the quasi-easement is shown by something in sight upon the dominant tenement. That is the point to which the-attention of the purchaser is naturally directed ; and the principle upon which the cases go is that he is entitled to the tenement he buys in its then present condition, and the use of all such-easements as are apparent and continuous. Now, the easement which he sees on the tenement which he buys must be held to-be apparent.
It seems to me that, in Toothe v. Bryce, the result must have been the same if the ram which drove up the water to the tenement conveyed to the complainant, had been entirely invisible.
In the case in hand the controlling fact is that the pump was there visible and in use, and by its connection with the invisible-pipe leading to some fountain the house conveyed to complainant was supplied with water.
This view must hold if the defendant’s tenement had been, retained by Mrs. Mabey and the action were against her instead
Next, as to the quality of being “ continuous.” Mr. Gale, in the later editions of his book — §§ 50, 52 (4-th Eng. ed., 1868, pp. 87, 89) — comes to the conclusion that the test of continuousness is that there should be an alteration in the quality — or “disposition” — of the tenement, which is intended to be, and is, in its nature, permanent, and gives the tenement peculiar qualities, and results in making one part dependent, in a measure, upon the other. It is not of the essence of this test, as applied to a watercourse, that the water should flow of itself continuously, but the test is that the artificial apparatus by which its flow is produced is of a permanent nature. It is with a view of bringing out this quality of permanence that the learned author contrasts this class of easements with a right of way, “ the enjoyment of which depends upon an actual interference of man at each time of enjoyment.” Now, what is meant by that sentence is that the burthen of the easement in the case of a right of way is not felt by the servient tenement except at the moment of each enjoyment of it. A permanent structure upon, or alteration of, the servient tenement is not a necessary element of such ■an easement. And by the expression “interference of man at each time of enjoyment” is meant no more than an interference with the servient tenement by an entry upon it, as illustrated not only by ordinary rights of way, but also by rights of way
I stop here to say that the distinction between a watercourse and a formed and metaled road constructed for permanent use is quite thin, and there have been expressions of judges in modem times intimating an inclination to Bold that where a dwelling or other such tenement is conveyed with an artificially-formed road leading to it over other lands of the grantor which are reserved, a right of way ought to be held to pass.
The true distinction between a continuous and a non-continuous easement is again illustrated by the case of the rain-water drain in Pyer v. Carter, through which the water actually ran only when it rained, and yet it was held continuous because it was permanent and constituted a permanent alteration in the structure of the tenement. Suppose that in that case it had been necessary for the plaintiff on each occasion of a rain to pump the rainwater from a pit in his cellar into the drain, would it have been, by reason of that arrangement, any the less continuous ? I think not. In short, I conclude that the word “continuous” in this connection means no more than this — that the structure which produces the change in the tenement shall be of a permanent character, and ready for use at the pleasure of the owner of the dominant tenement without making an entry on the servient tenement. In Seymour v. Lewis, supra, although the water did run by gravity, the head was so small that a sufficient supply could not be procured without the use of a pump, and a pump was in actual use ■ and yet that did not destroy the continuous character of the easement.
For these reasons I conclude that the easement here in question is both apparent and continuous. That it was “ necessary ” in the -sense in which that word is used in this connection is undeniable.
In this case there is no room for the application of the distinction, even if that distinction were recognized by this court, between the reservation and the grant of an easement of this ■character upon the severance of the tenement. The conveyances from the original proprietor, which produced the severance, were
I conclude that the complainant is entitled to the relief prayed-for, and will so advise.