Churchill v. Harris

• Decision Date: 24 November 1926
• Citation: 154 N.E. 87,257 Mass. 499
• Parties: CHURCHILL v. HARRIS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

257 Mass. 499

154 N.E. 87

CHURCHILL

v.HARRIS et al.

Supreme Judicial Court of Massachusetts, Franklin.

Nov. 24, 1926.

Appeal from Superior Court, Franklin County; Callahan, Judge.

Bill in equity by Merritt H. Churchill against Herbert R. Harris and another for injunction. From an interlocutory decree sustaining demurrer to bill, plaintiff appeals. Reversed.

Homer Sherman, of Charlemont, for appellant.

W. A. Davenport and C. Fairhurst, both of Greenfield, for appellees.

CROSBY, J.

This is a bill in equity brought to restrain the defendants from interfering with the plaintiff's alleged right to take water from a spring on the defendants' premises.

The bill alleges that the plaintiff on April 25, 1925, was the owner of a farm upon which was situated a farm house; that on that date he conveyed to the defendants by warranty deed a portion of the premises, including that part upon which the farm house was located; that the plaintiff has adjoining the land conveyed a tract known as the ‘bungalow lot’ on which is situated a bungalow designed as a summer dwelling; that upon the granted premises is a certain spring from which pipes ran to the cellar of the farm house; that at the time of the conveyance and for some time prior thereto a water pipe had been connected in the defendants' cellar with the pipe from the spring and laid to the bungalow, supplying the plaintiff there with water; that the deed to the defendants contained the following provision: ‘Reserving also to the grantor and his heirs and assigns one-half of the spring of water which now runs to the buildings on said premises.’ The bill further alleges that the defendants have refused to allow the plaintiff to connect the pipe running from the bungalow with the pipe in the defendants' cellar or to come upon their premises under any circumstances unless he pays them the sum of $50; that ‘by virtue of the reservation in his said deed of one-half of the said spring of water [he] is entitled by necessity to a right to the reasonable use of said water; and that the right to connect the pipe in the cellar of the defendants as aforesaid is the natural, logical and lawful right appurtenant to the plaintiff's ownership in the one-half interest of the said spring.’ The plaintiff prays for an injunction restraining the defendants from preventing him from connecting the pipes in the cellar of the defendants, from interfering with him in his use and enjoyment of his property in the spring, and for damages. The bill also contains a prayer for general relief. The case is before us on an appeal by the plaintiff from an interlocutory decree sustaining a demurrer to the bill.

[1][2][3] The recital in the deed that the grantor reserves to himself and his heirs and assigns ‘one-half of the spring of water which now runs to the buildings on said premises' is a reservation. Bean v. French, 140 Mass. 229, 3 N. E. 206. The effect of the reservation is to create an easement in the spring appurtenant to the bungalow and the land upon which it is situated. Goodrich v. Burbank, 12 Allen, 459, 90 Am. Dec. 161;Willets v. Langhaar, 212 Mass. 573, 99 N. E. 466. The reservation in the deed by the plaintiff to himself of one-half of the spring results in the plaintiff and the defendants being the owners in fee as tenants in common of so much of the land out of which the spring issues as is necessary for the reasonable use of the spring itself, as well as a right to one-half of the water. Owen v. Field, 102 Mass. 90, 102;Proprietors of Mills on Montiquot River v. Braintree Water Supply Co., 149 Mass. 478, 484, 21 N. E. 761, 4 L. R. A. 272;Tinker v. Bessel, 213 Mass. 74, 99 N. E. 946;Mixer v. Reed, 25 Vt. 254.

[4][5][6] The defendants in their brief assume that the plaintiff has the right to go upon their land and carry away water from the spring, but contend that no burden is imposed upon their land by the terms of the reservation. Such a limitation of the...