58 A.D. 242 | N.Y. App. Div. | 1901
This action was brought to enjoin the defendant from cutting off, disturbing or interfering with a drain which extended from the plaintiff’s premises, No. 586 Seventh avenue, under the houses No. 584 and No. 582 Seventh avenue, the defendant being the owner of No. 582 Seventh avenue. It seems that one Charles K. Covert was prior to the year 1874 the owner of’ these three houses Nos. 582, 584 and 586 Seventh avenue — 582 is at the northwest corner of Forty-first street and Seventh avenue; 584 adjoins the same on the north, and 586 adjoins 584 on the north. Covert, being the owner of the three houses, by a deed dated April 18, 1874, and recorded April 21, 1874, conveyed to the plaintiff in fee the house No. 586 Seventh avenue, and since that time the plaintiff has remained the owner and in possession thereof. At the time of the said conveyance, and at all times subsequent thereto, there was a drain extending from the premises owned by the plaintiff through the premises on the south to Forty-first street. Such drain conveyed the sewerage from the plaintiff’s residence to the public sewer in Forty-first street, and during all the period named has continued to drain the plaintiff’s premises. Covert conveyed the premises owned by the defendant by deed dated December 16, 1875, and recorded February 28, 1876. It does not appear by whom these buildings were constructed, but at the time the premises were conveyed to the plaintiff this drain existed.
The defendant to defeat this application relies on the fact that she purchased these premises without knowledge of the existence of this drain, and that as soon as she discovered it she notified the plaintiff that at the expiration of thirty days she would cut off the drain and prevent its future use. There is no evidence as to when
The question presented is whether the plaintiff acquired an easement by the purchase of his premises, when at the time of the conveyance to him there was a visible arrangement by which the plaintiff’s ■sewerage was discharged through a drain under the adjacent property, ■then owned by the grantor, to the sewer in Forty-first street. That ¡this drain and its connection were a visible appurtenance to the plaintiff’s property is not disputed. The plaintiff’s grantor must be chargeable with knowledge of the actual condition at the time of the conveyance to plaintiff and that when he conveyed one of the houses to the plaintiff he knew that he conveyed a house with this drain as an actual and visible appurtenance to it. ■ That thereby the plaintiff acquired an easement to continue this dráin as constructed at the
We think, therefore, that by this conveyance of No. 586 Seventh avenue there was an implied grant of an easement to which the remaining portions of the grantor’s premises were subject, and by which the plaintiff acquired the right to maintain this drain connecting his house with the sewer in Forty-first street.
Nor do I think the rules of the building department or the action of the board of health destroyed this right. No question is made upon this appeal as to the obligation of the plaintiff to keep this drain in repair, so that it shall comply with the requirements of the health authorities. The affidavit of the plumber submitted on behalf of the defendant is only to the effect that the present .drain cannot be kept tight in consequence of the amount of drainage passing through it. Nor is the right of the owner of the house adjoining the defendant’s house to use this drain for the benefit of his premises before us. The requirements of the building department seem to apply only to buildings erected after the passage of the act, and there is no evidence to show that when these buildings were erected there were any provisions of law which made such a construction illegal, nor is there any provision of law that makes a continuation ■of such a construction illegal.
Our conclusion, therefore, is that appurtenant to the plaintiff’s premises "is an easement arising by the implication of a grant to which the defendant’s premises are subject, and it follows that the defendant had no right to interfere with the propér and legal exercise of this- easement.
The order appealed from should, therefore, be affirmed, with ten dollars costs and disbursements.
Van Brunt, P. J., Rumsey, O’Brien and McLaughlin, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.