Chevalier v. Tyler

• Decision Date: 01 February 1955
• Docket Number: No. 539,539
• Citation: 111 A.2d 722,118 Vt. 448
• Parties: Eli CHEVALIER and Florence Chevalier v. Edward J. TYLER and Francis J. Tyler.
• Court: Vermont Supreme Court

Page 722

111 A.2d 722

118 Vt. 448

Eli CHEVALIER and Florence Chevalier v. Edward J. TYLER and Francis J. Tyler.

No. 539.

Supreme Court of Vermont.

Feb. 1, 1955.

John H. Webster, Swanton, for plaintiffs.

John G. Kissane, St. Albans, A. Pearley Feen, Burlington, for defendants.

Before SHERBURNE, C. J., JEFFORDS, ADAMS and CHASE, JJ., and SHANGRAW, Superior Judge.

CHASE, Justice.

This is a suit in equity in which the plaintiffs seek to permanently enjoin the defendants from using a cesspool situated on property owned by the plaintiffs and from permitting the overflow from such cesspool to flow onto property of the plaintiffs. The defendants, by way of answer and cross bill, claim the right to use this cesspool and to let its overflow run onto the land of the plaintiffs by reason of an implied reservation by necessity. The defendants seek to permanently enjoin the plaintiffs from interfering with the use of this cesspool and from interfering with the discharge of this cesspool and that of another cesspool situated on lands of the defendant onto lands of the plaintiffs.

A hearing was had during the September Term, 1952 of the Franklin County Court of Chancery. Requests for findings were filed by the defendants. A decree was made which permanently enjoined the defendants, their servants, agents, executors, administrators, successors, heirs and assigns from discharging or depositing sewage and other waste material in and upon premises of the plaintiffs. The defendants took and were allowed exceptions to the admission and exclusion of evidence, to certain findings, to the failure to find as requested and to the decree. The case is here on the bill of exceptions of the defendants.

From findings of fact which are supported by substantial evidence and not excepted to, it appears that prior to her death a Matilda Cadorette was the common owner of property in Highgate, Vermont, known as the Franklin House property. The Franklin House property is located on the westerly side of U.S. Route 7 at an elevation extending above that highway. Easterly of Route 7 is the right of way of the Central Vermont Railway. Easterly of this right of way is land of the plaintiffs, called the 25 acre piece, which originally was a part of the Franklin House property. Route 7 and the railroad right of way are parallel and run generally in a north and south direction intersecting the Franklin House property as it was during the lifetime of Matilda Cadorette. During the time Matilda Cadorette owned the Franklin House property the sewage and waste matter from the Franklin House drained easterly into two cesspools. One cesspool, located south of some tennis courts, also received sewage from buildings other than the Franklin House, which buildings are now owned by a Marguerite Cadorette. The overflow from this cesspool ran into a trap or pit which during the hearing was sometimes referred to as a cesspool. Marguerite Cadorette now owns the property on which this trap or pit is located. The overflow from this trap or pit did and does now go under the railroad tracks onto the 25 acre piece. The other cesspool was located on the 25 acre piece in a northeasterly direction from the Franklin House and its overflow ran onto 25 acre piece. On October 25, 1943, the executor of the Estate of Matilda Cadorette conveyed the 25 acre piece to the plaintiffs but did not reserve the cesspool situated thereon nor the right to have the overflow of this and the other cesspool, which made up the sewage system of the Franklin House, run onto the twenty-five acre piece. On October 26, 1943, said executor conveyed a portion of the Franklin House property to Marguerite Cadorette and reserved the pit or trap situated thereon. On June 22, 1944, said executor conveyed to the defendants and John C. Wriston and Hildreth Tyler Wriston the balance of the Franklin House property. Included in this conveyance was the pit or trap situated on the property conveyed to Marguerite Cadorette. Subsequently the Wristons conveyed their interest to the Franklin House property to the defendants. At the time the plaintiffs acquired the 25 acre piece, plaintiff Eli Chevalier had been generally familiar with the sewage system of the Franklin House and its overflowing onto the 25 acre piece for some thirty years. From a finding that was excepted to but not briefed, it appears that after the defendants and the Wristons acquired the Franklin House property they installed on the railroad right of way a septic tank with a chlorinator in place of the cesspool located on the twenty-five acre piece. The overflow from this septic tank flows onto the twenty-five acre piece. The use of this septic tank and the permitting of the overflow from it to run onto the twenty-five acre piece was not made an issue in this case by the pleadings, although the case was apparently tried on the theory that it had been.

The defendants, in support of their claim of right to use the two cesspools and permit their overflow to run onto the 25 acre piece, rely upon an easement by implication. To create such an easement there must be--(1) Unity and subsequent separation of title. (2) Obvious benefit to the dominant estate and burden to the servient portion of the premises existing at the time of the conveyance. (3) Use of the premises by the common owner in their altered condition long enough before the conveyance to show that the change was intended to be permanent. (4) Necessity for the easement. Read v. Webster, 95 Vt. 239, 244, 113 A. 814, 16 A.L.R. 1068. There can be no reservation of an easement by implication unless the easement is one of strict necessity. Wheeler v. Taylor, 114 Vt. 33, 34, 39 A.2d 190.

The effective date in this case for the existence or nonexistence of the four elements necessary to create an easement by implication was October 25, 1943, the date of the conveyance to the plaintiffs. Wheeler v. Taylor, 114 Vt. 33, 37, 39 A.2d 190; Reed v. Webster, 95 Vt. 239, 244, 113 A. 814; McElroy v. McLeay, 71 Vt. 396, 404, 45 A. 898; 28 C.J.S., Easements, § 35; 17 Am.Jur.Easments, § 43.

The first exception briefed by the defendants was to the admission of testimony of Eli Chevalier, one of the plaintiffs, that he would permit the defendants to lay tile across his land that lay northerly of the Franklin House so that sewage could be disposed of on land owned by the defendants. This land of the defendants was not a part of the Franklin House property on October 25, 1943, and the offer of the plaintiff, Eli Chevalier, could have no bearing on any question involved in this case. This exception is sustained.

The next exception briefed by the defendants was to the refusal of the Chancellor to find that the sewer system that existed at the time of the sale of the 25 acre piece was an obvious benefit to the hotel property and a burden to the 25 acre piece, as requested in No. 2 of Defendants' Requests. The uncontradicted evidence was that the sewer system as it existed on October 23, 1943, was the only system in existence for the disposal of the sewage from the hotel property and that the overflow from the two cesspools emptied into the brook or ditch on the 25 acre piece. Upon this evidence this request should have been complied with. This exception is sustained.

The next exception briefed by the defendants was to the refusal of the Chancellor to find that the use of the 25 acre piece for the purpose of receiving the overflow from cesspools was for a long period of time and that this use was intended to be permanent, as requested in No. 3 of Defendants' Requests. In addition to the evidence referred to under the previous exception there was uncontradicted evidence given by the plaintiff, Eli Chevalier, that for thirty years prior to October 25, 1943, the overflow from the cesspools had run into the brook or ditch on the 25 acre piece. Upon this evidence this request should have been complied with. This exception is sustained.

The next exception briefed by the defendants was to the refusal of the Chancellor to find that the cesspools located easterly of the railroad tracks and on the southeasterly corner of the defendants' premises were there during the time when Eli Chevalier owned the premises north of the 25 acre piece which was for a period of approximately thirty years and that Eli Chevalier knew of their presence at the time he purchased the 25 acre piece, as requested in No. 4 of Defendants' Requests. Upon the uncontradicted evidence previously referred to and reasonable inferences therefrom this request should have been complied with. This exception is sustained.

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