Owen v. Field

| Mass. | Sep 15, 1869

Ames, J.

Upon the attempt to draw up the final decree in this'case, it was suggested that there were a few points which seemed to have been left by the judgment not entirely free from controversy, and it has been thought expedient, as to those points, to hear further argument from counsel.

It appears from the master’s report that the aqueduct, as used by Stanton, conducted water from two springs only; and that the plaintiff, since the dispute between these parties began, has taken the water of two other springs into her aqueduct. The defendant now objects that it does not appear that these two springs last mentioned were among the four that are referred to in her title deeds. But the four springs are described with much precision in the Kellogg indenture, and the same description appears to have been adopted, by reference to that indenture, in all the subsequent deeds. The master’s report certainly implies that the four springs which the plaintiff claims are the same four that are referred to in the entire chain of conveyance. ]>io question as to their identity appears to have been raised at any previous stage of the case. In. the absence of all evidence of any practical uncertainty upon the subject, and of all reason to infer from the report that there are more than four springs upon the lot, we must assume that her possession, taken under a deed containing a definite and clear description, is in accordance with her deed.

As to the alleged forfeiture of her right to make use of the two springs recently taken into the aqueduct, it is to be remembered that she claims by deed, and for that reason mere nonuser would be of no avail to impair or defeat her right. The nonuser, to have that effect, must be in consequence of something which is adverse to i!he user. Nothing short of adverse use, on the part of the owner of the servient estate, inconsistent with and preventing the use of the easement, can destroy the easement. According to the authorities, the interruption of the easement, by adverse use on the part of some person adversely interested, must be continued for at least twenty years in order to destroy the easement. Smyles v. Hastings, 22 N. Y. 217. Arnold v. Stevens, 24 Pick. 106. Washburn on Easements, 551, 556, and cases there collected. In this case there has been no inconsistent or adverse use by the defendant and those from whom he derives his title; and the very title deed under which he holds the Hull lot, in express terms, reserves and excepts out of the grant the rights of Burrall, in the springs, as reserved in the deed from Burrall to Hull.

The defendant also insists that the plaintiff’s right in the springs is subject to the conditions described in the Kellogg in. denture. In the deed from Burrall to Hull, the grantor reserved to himself and his heirs, &c., in very general and comprehensive terms, the entire control of the water of the springs. It is true that in so doing he uses the expression “ as per the conditions relating to the present pipe and fixtures.” But, at the date of that deed, neither of the parties to it had any interest in, or were under any obligation towards, the owner of the homestead which has since been conveyed to the defendant or his family. Wood-bridge had conveyed it to Hyde, and Hyde had no rights in the springs except such as were reserved to Woodbridge under tho+ indenture. Upon the termination of the easement created by that indenture, the lessees under it had the right to remove all their fixtures, the indenture was “ to cease and be thereafter void and of no effect,” and the right in the springs then stood exactly as if no such indenture had ever been made. They came under the full control of Burrall, according to the reservation in his deed. He was under no obligation or necessity to impose upon their use any condition for the benefit of a mere stranger to the title, and we can give no other construction to the phrase “ as per the conditions relating to the present pipe and fixtures,” than to say that it was descriptive of the mode of use, and the general manner of conducting away thp water, doing no unnecessary damage, &c. It certainly cannot operate as a grant to a third person.

Whatever rights the plaintiff can lawfully claim in the four springs, she holds by a single and indivisible title, not dependent on continuous user, but upon a series of formal and regular grants from successive owners. It can hardly be said, merely because her predecessor had never exercised the whole of his right, and she also had not done so until quite recently, that her title had not been put in use, and that therefore her remedy in equity must be confined to the two springs first connected with the aqueduct. It is enough that she has made out a case of long continued enjoyment under a clear title; that, although she has not used her whole right, she has never abandoned any part of it; and that the defendant’s denial of her right and his opposition to its exercise have extended to her whole title.

We did not intend, in this additional hearing, to reopen the controversy between the parties, or to intimate any uncertainty in our own minds as to the general character of the decision already given. On the contrary, we have desired to confine ourselves strictly to the objections taken by the defendant to the decree originally prepared. And as to those objections, we do not see on what ground they can be sustained.

Final decree for the plaintiff.