199 A.D. 90 | N.Y. App. Div. | 1921
There is no substantial disagreement about the essential facts in this case. One Beadle for some time prior to the year 1895 was the owner of two lots in the village of Cooperstown. One of these lots, now owned by the defendant, was located at the corner of Prospect place and Nelson avenue. The second lot was located immediately south of the above premises, and fronted upon Nelson avenue, and still farther to the south, and adjoining the Nelson avenue premises, was a residence now owned by parties by the name of Shipman. This property has no connection with the properties formerly owned by Beadle, and it is mentioned only because of an incidental involvement in the present controversy bearing upon the equities. In the year 1892 Beadle, the then owner of the Prospect place and the Nelson avenue properties involved in this controversy, constructed two houses, one upon each of such properties, and, as there was no sewer upon Nelson avenue at the time, he placed a four-inch tile pipe in the rear of the Nelson avenue house, leading north through the Prospect
On the 9th of September, 1898, Keese and Brewer, the assignees of Arnold, sold the mortgage upon the Prospect place house to the defendant, John B. Conkling, who went into immediate possession, as mortgagee in possession. On the 29th day of December, 1898, one day prior to the sale under the foreclosure action, through which sale the plaintiff secured title to the Nelson avenue property, the defendant in possession as mortgagee took a deed from Sophia B. Raymond, devisee under the Beadle will, having paid the difference between the purchase price and the mortgage, thus perfecting his record title in advance of that of Keese and Brewer as executors, which was the first remove from the united ownership of the properties in Sophia B. Raymond. There was, it would seem, no severance of the properties until the 29th day of December, 1898, on which day the defendant came into full ownership of his property by metes 'and bounds, and .on the following day the plaintiff’s predecessor came into a like ownership of the Nelson avenue property. Of course there could be no easement so long as the title to the property remained in a single owner (Lampman v. Milks, 21 N. Y. 505) and the law is well established that where the premises upon which the easement is sought to be imposed were conveyed by the owner prior to the conveyance of the premises
The evidence in this case clearly indicates that the sewer was of a temporary character, the very existence of which was unknown to the parties to this action for many years after coming into the ownership of their respective properties, coming to their attention only with the clogging of the same. It appears that the plaintiff has, by the rental of rooms in his house, increased the burden upon this temporary sewer, and that his neighbors on the south have attached their house to the same outlet without, so far as appears, any possible legal right. While the plaintiff claims that he has had nothing to do with the Shipmans attaching to the sewer it yet appears that he has done nothing to prevent it, and as the sewage from the Shipman premises comes upon the premises of defendant through the plaintiff’s premises it must be obvious that the plaintiff cannot escape the equitable consequences of this invasion of the defendant’s rights. Assuming that the plaintiff had the rights existing at the time of his purchase, as against the defendant, he clearly had no right to increase, or to permit of the increase, of the burden upon the sewer to the prejudice of the rights of the defendant, and this of itself would justify a court of equity in refusing relief.
From the time the village of Cooperstown constructed a sewer upon Nelson avenue in front of the plaintiff’s premises in 1894, which was while the premises were in the possession and ownership of Sophia B. Raymond, there has been no legal necessity for the sewer involved in this controversy. It has been entirely practicable for the plaintiff and his predecessors in title to connect with this public sewer; and the rule is well established that where the property is conveyed by metes and bounds “ with the appurtenances thereunto belonging ”
The intelligent discussion of the court at Trial Term makes it unnecessary to go into this case further.
The judgment appealed from, should be affirmed, with costs.
Present — John M. Kellogg, P. J., Woodward, Cochrane, H. T. Kellogg and Van Kirk, JJ.
Judgment unanimously affirmed, with costs.