56 N.J. Eq. 476 | New York Court of Chancery | 1898
The object of the bill is to define the relative rights of the complainant and defendants in a designated spring and the water
“lay under the ground of the lands of the said Abram and Isaac Wildrick an aqueduct of iron pipes, from a spring of water on the lands of the said Abram and Isaac Wildrick and over and across and through their lands, for the purpose of bringing water to the said village of Marksboro, immediately in front of and into and upon the lands of the said James Blair and into his dwelling-house and other buildings upon the lot of land above described, for the use and convenience of the said property, and into and upon certain lands of the said Abram and Isaac Wildrick in the said village of Marksboro, upon which there was an hotel and other buildings, for the use and convenience of said hotel property, and that the said aqueduct should be the joint property of the said James Blair and Abram and Isaac Wildrick and their several heirs and assigns, and that the said spring of water should be and remain for the use of and under the control of both parties and their heirs and assigns forever, and that each party and their heirs and assigns should have the privilege of entering upon the lands of the other along the line of said aqueduct of iron j pipe for the purpose of repairing the same, and that they should be joint owners thereof and also of said spring, and should have the privilege of entering upon the lands of each other for the purpose of repairing said aqueduct, when repairs should be necessary, doing no unnecessary damage to the lands."
Blair conveyed to Moore, with privilege and right of use of the water of the spring. In October, 1866, Moore entered into
“that whereas, some years before the date thereof, the party of the first part, Abram and Isaac "Wildrick, by verbal agreement with James Blair, who resided and owned a lot of land in the village of Marksboro, on which there was a dwelling-house, storehouse, barn, wagon-house and other outbuildings, situate in the northwest side of the public road leading from the Marksboro hotel to the village of Paulina, which lot of land was purchased by the said James Blair of the said party of the first part — they, the parties of the first part, also owned lands in the village of Marksboro, on which there was a large tavern-house and shed and other outbuildings, and are adjoining the Blair lot — and that by said agreement the said Wildricks and James Blair proceeded to lay an aqueduct of iron pipes, from a spring of water on lands of the parties of the first part through lands of said parties of the first part, for the purpose of bringing the water from the spring to the village of Marksboro, immediately in front of and into the buildings belonging to the parties, the parties of the first part being at half the expense and the said James Blair the half, the said aqueduct to remain the joint property of the said parties and their several heirs and assigns; each party, their heirs or assigns to have the privilege of entering on said lands for the purpose of repairing said aqueduct, when repairs are necessary, doing no unnecessary damage to the lands; each party or their assigns to be at half the expense of all necessary repairs to the spring and main pipes ; also, each party, their heirs and assigns shall have the right and privilege to insert a pipe or pipes into the main pipe, of not mox-e than tlxree-fourths of an inch bore, for the purpose of supplying their own lands axxd buildings with water.
“And whereas the said John Moore, party of the second part, was then the owner of the Blair lot refei'red to in the said agreement, the said James Blair having conveyed the same to the said John Moore by deed bearing date the 22d day of Max’ch, 1866, also all the said Blair’s rights, title and interest in the said aqueduct and water works, it was agreed by and between the parties to the said agreement that the said spring, aqueduct and water works should remain under the control of the said parties, with the same rights and privileges as the said James Blair had at the time he conveyed the said property to the said John Moore.”
When Moore sold to Van Horn, in 1871, he, by writing under seal, assigned to Van Horn all his right, title and interest under the agreement just mentioned. Prior to 1889 the main pipe from the spring was two inches in diameter, and was tapped by a pipe three-quarters of an inch in diameter through which
The defendants contend that the written agreement of 1866 was not intended to confer upon Moore other right than Blair had when he conveyed to Moore, and that such right was a mere revokable license. If the first part of this proposition be true, which I do not agree as will presently be again stated, was the right of Blair a mere revokable license ?
I do not find that the views expressed by Chief-Justice Beasley, in Lawrence v. Springer, supra, militate against the correctness of this conclusion. There the proposition disapproved was that a parol license without any consideration moving to the licensor, operating as part of an easement, is irrevocable in equity where the licensee has gone to expenditures in the erection of structures on his own land in pursuance of such authority. The chief-justice deprecated that which he
He expressly approves of Raritan Water Power Co. v. Veghte as having been rightly decided, and he passes without disapproval the case of Duke of Devonshire v. Elgin, 14 Beav. 530, 20 L. J. (N. S.) 495, where the answer admitted that there-was a parol agreement to allow a water-course to be made through the defendant’s land in consideration of the payment of a reasonable sum, and as the only disagreement was as to the terms of the contract with respect to the consideration, the master of the rolls decreed that the complainants were entitled to the free use and enjoyment of the water-course in Elgin’s lands, and, by injunction, restrained interference with it, making reference to a master to ascertain the compensation to be paid Elgin.
The case considered is stronger than the Elgin case, for, upon demurrer, the fact of the parol agreement and its terms, and that the stipulated consideration was given, are all admitted as stated in the bill.
I think that, in equity, Blair had not only the right of property in the aqueduct which he had joined in constructing, but also had permission or license to take from the spring a supply of water for his dwelling through the aqueduct, which permission or license equity would not permit to be revoked, and
But, as I have said, I do not agree that the written and sealed agreement of October, 1866, between Moore and the Wildricks, was not intended to confer upon Moore other claim or right than Blair actually had when he conveyed to Moore. The agreement was evidently intended to both permanently regulate the maintenance and use of the aqueduct and spring and to confirm, by solemn covenant under seal, the right contemplated as Blair’s in the recitals of the covenant. The agreement first recited, the situation, use and ownership of the properties of Blair and the Wildricks — the fact that Blair had purchased his property from the Wildricks, the fact that Blair and the Wildricks had constructed the aqueduct at their joint expense, under verbal agreement (1) that the “aqueduct” should remain in the joint property of them and their heirs and assigns; (2) that each and their heirs and assigns might enter upon the lands upon which it was constructed to make necessary repairs to it; (3) that each and their assigns should bear half the expense of repairs to the “ spring and main pipes,” and (4) that each and their heirs and assigns should have the right and privilege to insert a pipe or pipes into the main pipe of not more than three-fourths inch bore, for the purpose of supplying their own lands and buildings with water — then, that Moore had become the owner of the Blair lot and of Blair’s right, title and interest in the aqueduct and water works, and terminated with an agreement that the spring,-aqueduct and water works should remain under the control of Moore and the Wildricks, with the same rights and privileges as Blair had when he conveyed to Moore.
The obvious design was, in consideration of mutual obligations, to thereafter by that instrument subject the spring and lands to Moore’s use as the parol agreement recited designed that they should be subjected to the use of Blair, and as the design of the parol agreement was to make that use permanent, the sealed covenant or deed did the same. Such a covenant appears to be all that is necessary to create an easement in the land. 2 Washb. Real Prop. 317.
The.complaint is that William H. Clark has tapped the aqueduct with two pipes, one of which is double the three-quarters of .an inch in diameter which the covenant allows; that he threatens ¡to tap it with an additional pipe; that he has permitted the defendant Ryman to tap the aqueduct and to give away water, and that Ryman, availing himself of that permission, has tapped the aqueduct and is giving away water. All of which use, causing constant diminution and sometimes stoppage of the water-supply to the complainant, does him irreparable injury.
It appears to me to be plain that the only adequate remedy is the regulation of the use of the aqueduct and spring between the complainant and the defendants. Regulation of the enjoyment of mutual rights in a common easement is within the cognizance of a court of [equity. Delaware, Lackawanna and Western Railroad Co. v. Erie Railroad Co., 6 C. E. Gr. 298; Lehigh Valley Railroad Co. v. Society, &c., 3 Stew. Eq. 145, 161; National Docks Railway Co. v. Central Railroad Company of New Jersey, 5 Stew. Eq. 767; National Docks, &c., Railway Co. v. United Companies, 24 Vr. 217; Same v. Pennsylvania Railroad Co., 9 Dick. Ch. Rep. 13. In the first of these cases the late Chief-Justice Beasley, sitting for the chancellor as master, said : “ They are tenants in common of an easement, and if this court cannot protect the one against the injustice of the other, the party whose rights are invaded is clearly without any adequate remedy, for it is certain that either of these companies, thus situated, can so act with respect to the common easement as to render it worthless to the other, and thus bring upon the latter incalculable mischief. The general cognizance of equity in cases of this kind, where property is enjoyed in common, will not, it is presumed, be disputed by anyone, and I can perceive no reason why this power should not exist where
Neither the admitted allegations of the bill nor the provisions-of the covenant and agreement on this subject are involved in obscurity. I perceive no reason why the agreement may not beat once enforced by this court.
The defendant Ryman is taking water in virtue of the right of Clark so far as that right may extend. It does not appear' that he takes more water than Clark was entitled to take from the aqueduct, and hence it is not shown that he evicts the complainant from his right so that the complainant may maintain-an action at law against him.
I think that, because of his right had from Clark, he is a proper party to this suit. In regulating the use of the water,, his claim of right, whatever it may be, may be taken into consideration, and dealt with in the regulation of enjoyment of the' common right.
I will overrule the demurrers, with costs.