Myton v. Wilson

6 Pa. Super. 293 | Pa. Super. Ct. | 1898

Opinion by

Smith, J.,

The trespass of which the plaintiff complains was the laying of a pipe through his land, by the defendant, for the conveyance of water from a spring thereon to the defendant’s land adjacent. The defendant contends that the right to do this is an easement appurtenant to his land.

William Johnston, in 1810, conveyed part of a tract of land to his sons, William and John, and by his will, executed later, authorized his executors to sell the residue. The plaintiff holds under the deed and the defendant under the will. The deed contains the following stipulation: “Provided always, nevertheless, and it is hereby declared to be the express intent and meaning of the parties to these presents, that the right to one moiety or half part of a certain spring which rises on the above described land, opposite to and about ten perches east south east of a red oak, corner of the line, south eight degrees west twenty-four perches, and which crosses the said line, south eight degrees west twenty-four perches passing in a northwesterly course between the lines, south thirty-four degrees east twenty-four perches to a still house and south thirty degrees west eighty-six perches to a white oak, and the free use, liberty and privilege of the same shall still subsist in and continue and remain unto the said William Johnston, esquire, his heirs and assigns. To have and to hold the said above described land hereby granted, or mentioned, and intended so to be with the appurtenances unto the said William Johnston, Junior, and the said John Johnston, their heirs and assigns, as tenants in common, and not as joint tenants, to the only proper use, benefit and behoof of them the said William and Jolm and their respective heirs and assigns forever. Excepting, nevertheless, the right to one half part of said spring and one moiety of the spot of ground whereupon it arises, which the said William Johnston, esquire, expressly reserves, as aforesaid, to himself, his heirs and assigns forever.”

The defendant contends that the water right thus described became appurtenant to the land retained by the grantor, and passed to his successors in title. As the case is presented, however, a determination of this point is unnecessary. First, there is a question as to the identity of the spring described with that reached by the defendant’s pipe. Next, it appears that a natural outlet or channel existed, by which the water of the latter spring was conveyed to the defendant’s land, and there is no allegation of interference therewith by the plaintiff. If the spring to which the defendant laid his pipe was not the one mentioned in the stipulation, it is clear that the pipe was laid without right. If it was that spring, the first question to be considered is whether the stipulation, if creating a right appurtenant to the defendant’s land, authorized him to lay the pipe. Access to the spring in some manner, for the purpose of taking water, it undoubtedly implied. But with an existing channel, natural or artificial, conducting the water, the parties must, in the absence of any provision for a different mode of conveyance, be understood as contemplating the use of such channel for that purpose. There is no express provision for a departure from this channel, or for the laying of a pipe through the land conveyed ; while the description, beginning with the spring, follows with courses and distances that apparently refer to its outlet, as if for the purpose of including it. Under the terms of the stipulation, therefore, the grantor had a right to so maintain the existing channel as to keep it adequate for the purposes of the stipulation. He had no right to construct a channel elsewhere. If such a right can be implied, it is without limit, and the grantor might change the channel as often as he desired. Such a construction would give him an unreasonable dominion in the premises; one beyond evident need and beyond the apparent intention of the parties. To say that he had a riparian right to the flow through the natural channel, independent of the stipulation, does not meet the case. This right was limited to the natural flow from the spring, which might have been less than the quantum stipulated for. The stipulation gave the right to a fixed proportion of the spring water, and must be construed as contemplating its conveyance by the existing channel, with a right to make such improvement or enlargement- as might be found necessary to its sufficiency. This was the extent of the defendant’s right, and the substitution of another mode of conducting the water through the plaintiff’s land without his consent was unwarranted. Since this change in the manner of its enjoyment was without authority, the question whether the water right was appurtenant to the defendant’s land becomes immaterial.

Judgment affirmed.