5 N.Y.S. 739 | N.Y. Sup. Ct. | 1889
The facts of the ease seem to bring it squarely within the well-settled principle that where one of two tenements, or a portion of an entire
A very recent decision by the supreme court of Yew Jersey defines the rule applicable to easements which pass by implication upon a severance of tenements in a very clear and comprehensive manner, and states that three things are essential to their existence: First. A separation of the title; second, that before separation takes place the use which gives rise to the easement shall have been so long continued, and so obvious or manifest, as to show that it was meant to be permanent; and, third, that the easement shall be necessary to the beneficial enjoyment of the land granted .or retained, but that the degree of necessity is such merely as renders the easement essential to the convenient and comfortable enjoyment of the property, as it existed when the severance was made. Kelly v. Dunning, 10 Atl. Rep. 276. It has likewise been recently held by the court of appeals in this state that the element of necessity is supplied if it appears that the property conveyed cannot be fully enjoyed without subjecting the servient estate to the easement. Simmons v. Cloonan, supra. All the requirements thus held to be essential to the existence of a servitude are. found to be present in fche case under consideration. The title, which was formerly in the defendant, has been separated. Before such separation took place the use of the waters from the spring upon the Brines farm by means of pipes below the surface of the soil was so obvious and constant as to show that it was meant to be permanent, and the easement thus created, if not absolutely necessary, is certainly essential to the full beneficial enjoyment of the land granted. It follows, therefore, that, whether it comes within the definition of a continuous or discontinuous easement, the defendant, when he severed his tenements, charged the portion retained by him with the servitude of a stream of water conducted by artificial means from the spring in question to the plaintiff’s barn-yard.
It is contended, however, by the learned counsel for the defendant, that, even if the plaintiff’s deed did convey a right to the use of the waters so conducted from the spring upon the servient tenement, the defendant cannot be compelled to furnish the relief sought by this action, inasmuch as he lias not interfered directly with the water in the spring or pipes; but that whatever interference there has been was occasioned by excavations upon his own land, in the vicinity of the spring, which he had the right to make, although