36 Conn. 48 | Conn. | 1869
In the deed from Thomas to the respondent the
grantor reserved from the premises conveyed the right to draw a certain quantity of water at all times when the respondent or his successor should not be using sufficient water for-the accommodation of the factory below. The grant- or owned a factory below the mill deeded to the respondent, and the reservation was for the benefit of that factory. There is a provision in the deed in connection with the reservation that the respondent and his successor should keep a spout ten inches square at the bottom of the ditch leading to his grist mill to which the grantor should at all times have access for the purpose of exercising the right reserved in the deed. The reservation taken in connection with this provision is in effect a reservation of the right to draw wafer through a spout ten inches square. The right reserved is not otherwise limited or defined. That right was never sold to the respondent, but was subsequently transferred to the petitioners, and is now owned by them in as ample a manner as it formerly was by Thomas. But the deed purports to require the respondent to putin the spout upon land not conveyed, and the question is, whether a court of equity can compel him to do it under the circumstances of the case. That the respondent by accepting the deed containing this provision thereby agreed to perform this duty there can be no doubt. The case of Hinsdale v. Humphrey, 15 Conn., 431, is in point. See also Townsend v. Ward, 27 Conn., 610; Felch v. Taylor, 13 Pick., 133; Goodwin v. Gilbert, 9 Mass., 510; Burnett v. Lynch, 5 Barn. & Cress., 589. This duty was apart of the consideration of his deed. The respondent has received full compensation, and it is difficult to see why he is not bound to
The reservation of the right to the water would have carried with it an easement in the land conveyed for the purpose of drawing the water, on the principle that where a right is reserved or conveyed what is necessary for the enjoyment of the right, and without which the right would be useless, passes or is retained by implication. And again, if the agreement had not been made no doubt Thomas would have expressly reserved a place for the orifice. The agreement of the respondent prevented his doing .this, and shall the respondent be permitted now to say that he will not perform liis agreement when he has obtained the land of Thomas by means of it, and has been and is now in the enjoyment of the land as his own ? If A agrees to convey to B a tract of land in consideration that B will convey to A an easement in certain other lands, and A fulfills his part of the agreement and B goes into possession of the land, there can be no doubt that a court of equity would compel B to perform his part of the agreement. The respondent therefore can derive no benefit from the fact that the spout was agreed to be placed upon land that Thomas never owned.
But it is said that the agreement was only a license to Thomas to draw the water for so long a time as he should own the mill below. This claim is in conflict with all the facts of the case. The right to the water is reserved without limitation as to time. It was made for the benefit of the mill'below, and manifestly was designed to bo appurtenant to it. It would not only be beneficial so long as Thomas should own the mill, but would enhance its value to some extent when sold. If the right to the water was designed to be a perma
- It is further claimed that if a right to the spout ever existed, it has been waived and. abandoned. But waiver and abandonment are questions of fact for the court below to determine. No such facts have been found. '
Again it is claimed that the agreement was a mere chose in action, and did not pass by the deed from Thomas to the petitioners. The deed to the petitioners refers to the deed from Thomas to the respondent, and expressly conveys all the rights and privileges specified in that deed that Thomas had the right to convey. The right to the water was reserved by that deed. That right was manifestly conveyed to the petitioners. By that deed Thomas acquired an easement ip the respondent’s land to have the spout. That right was an equitable interest in the land and was also conveyed. By that deed the respondent agreed with Thomas to put in the spout. The act of putting in the spout is intimately connected with the easement, so much so that the easement could not be enjoyed without the. performance of this duty. Thomas had no right to go upon the respondent’s land and dig up the soil for the purpose of inserting the spout, neither- have the petitioners. The spout was agreed to be placed in the bob tom of the ditch leading to the respondent’s grist mill. The respondent has the right to select the place in the ditch where it shall be put, and to attend himself to the putting and keeping of it there. Eor aught that we can discover this may be an important qualification 'of the right given to Thomas to have it there. A conveyance therefore of the equitable easement carried with it the privilege of the respondent inseparably connected with it. Again, the promise of the respondent to put in the spout cannot be regarded as a separate and independent promise, even if it is a duty onerous to be performed. He agreed not only to grant an easement in his land, but to put it in a condition to be enjoyed; An easement in that condition he promised Thomas in consideration for the land he conveyed. An equitable
Again, it is claimed that the statute of limitations has barred the claim. Butfifteen years did not intervene between the giving of the deed by Thomas to the respondent and the bringing of this petition. Thomas acquired an equitable interest in the respondent’s land that could not be extinguished by lapse of time short of fifteen years. The agreement to put in the spout is intimately connected with the easement, as we have seen, ,so much so that this obligation remains so long as the easement continues. It is like the case of a promise by one to convey to another certain lands. If the agreement is valid and binding, so that the promisee can claim the land, then so long as the right to the land continues in the promisee, so long the obligation remains upon the promisor to perform the duty of executing the deed. It is all one agreement. A part 'of it cannot be barred by the statute while the rest remains in force.
Again, it does not appear that the spout has been needed to supply the lower mill with water. By the terms of the agreement this fact must appear before complaint could be successfully made. If the respondent has supplied the lower mill at all times with water, he has done all that he was bound to do, and there has been no default, and consequently no bar by the statute.
Again, it is claimed that the agreement is within the statute of frauds, on the ground that it was not in writing. It might well be questioned whether the fact that the respondent claims title under a deed from Thomas in which the terms of the agreement are expressed in writing, is not sufficient to take the case out of the statute. But however this may be, the case of Eaton v. Whitaker, 18 Conn., 222, and other cases that might be cited, fully show that there is nothing in this claim. Thomas fully performed his part of the
It is further claimed that the petitioners cannot sustain thoir bill because the finding does not show that the spout is needed to supply the lower mill with water. We think the respondent is right in this claim. But the- want of a finding upon this subject may have been owing to oversight on the part of counsel in neglecting to offer' evidence upon a point not in dispute between the parties, and we think the proper course therefore is to advise the Superior Court that if it shall be. found on a further hearing of the case that the spout is needed to supply the petitioner’s mill with water, the prayer of the petition should be granted. And we so advise.
In this opinion the other judges concurred.