Gaynor v. Bauer

• Decision Date: 21 December 1905
• Citation: 39 So. 749,144 Ala. 448
• Parties: GAYNOR v. BAUER.
• Court: Alabama Supreme Court

39 So. 749

144 Ala. 448

GAYNOR v. BAUER.

Supreme Court of Alabama

December 21, 1905

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

"To be officially reported."

Suit by Cornelia E. Gaynor against Kate Bauer. Decree for defendant and plaintiff appeals. Affirmed.

R. Inge Smith, for appellant.

R. H. &amp N. R. Clarke, for appellee.

SIMPSON J.

This was a bill filed by appellant against appellee, complaining of the disturbance by appellee of the rights of the appellant in certain water drains, pipes, etc., alleged to be on the line between the property of complainant and defendant, and used by both for the discharge of water from the buildings of both, and also of the disturbance of complainant's rights in a certain stairway, which had been used by both; and the bill prays that defendant be required to restore said drains pipes, etc., and said stairway, and that defendant be enjoined from injuring, etc., the same, and be also required to pay damages for the interference with and destruction of the property.

The first insistence of the appellant is that the court erred in sustaining the demurrer to that part of the bill relating to "the vertical pipe and underground drain," "upon the ground that said bill fails to show that any part of said pipe or of said drain is upon the premises owned by the complainant." This demurrer does not seem to be well taken, as the bill shows that the vertical gutter passes down the boundary line between that part of the building owned by complainant and that part owned by defendant, and that the sewer was on the boundary line. But, even though the court should be found to be in error in sustaining the demurrer on one of the grounds assigned, if there was another ground assigned which should have been sustained, the judgment of the court in that particular will be affirmed. Steiner v. Parker & Co., 108 Ala. 357, 365, 366, 19 So. 386.

The other ground of demurrer was that complainant had an adequate remedy at law. If complainant has any rights in the premises which have been invaded, as to which we will treat more fully hereafter, no allegations in the bill show any reason why complainant could not recover full compensation at law for the damage suffered, and place the drains on her own land. Appellant insists that the court could not know, in considering the demurrer, whether as a matter of fact the water could be carried off in some other way; but it was the duty of the appellant to make out her right to equitable relief by proper allegations in the bill, and there are no allegations in the bill of facts going to show that the easements claimed could not be provided for on complainant's own land, or that complainant was entitled to the easement, as will be more fully shown in the discussion of the subject hereafter. We hold that this ground of demurrer should have been sustained. Wharton v. Hannon, 115 Ala. 518, 523, 22 So. 287, adopting the dissenting opinion of Chief Justice Stone in same case in 101 Ala. 554, 14 So. 630. There is nothing in the amendment to the bill which removes it from the above principle.

The undisputed facts are that the land in question was originally owned by the parties complainant and defendant (or their predecessors) in common, as an inheritance from their ancestors; that the water pipes, drains, and stairway were in position when they inherited the lands, and so remained when the deed of partition (Exhibit A) was executed. The important question to be determined, then, is: What were the rights of the complainant in the drains and stairway, which were located in whole or in part on the lands of the defendant. The subject of these quasi easements has been very exhaustively discussed in numerous cases, both English and American, and the general result of the decisions seems to be pretty clear to the effect that where a man owns two parcels of land and conveys one of them, or the owner of an estate sells a portion, "all such continuous and apparent quasi easements as are reasonably necessary to the enjoyment of the property granted pass to the grantee, giving rise to easements by implied grant. If, on the other hand, the quasi servient tenement is granted, while the quasi dominant tenement is retained, no easement is reserved by implication, unless it is strictly necessary to the enjoyment of the property retained." 10 Am. & Eng. Ency. Law (2d Ed.) pp. 419, 424, and notes; Wells v. Garbutt, 132 N.Y. 435, 30 N.E. 978; Walker v. Clifford, 128 Ala. 67, 29 So. 588, 86 Am. St. Rep. 74. It will be observed that, in the most favorable view that can be taken, the quasi easement must be at least reasonably necessary to the enjoyment of the estate granted, while in the case of the grant of the servient estate it must be strictly necessary in order to enjoy the benefit of this implication of law.

In a case like the present, where each party is both grantor and grantee, it is a matter of some difficulty to apply the rule above stated. The reason given for the distinction is that a "grantor cannot derogate from his grant, while the grantee may take the language of the deed most strongly in his favor." Wells v. Garbutt, 132 N.Y. 435, 30 N.E. 979. It is but an implication at best, and it has been stated that "when such necessity exists as will create by implication a right of way is a question of fact determined by the facts of each particular case. Mere inconvenience will not constitute such necessity." Tiedeman on Real Property, § 609; Walker v. Clifford, 128 Ala. 74, 29 So. 588, 86 Am. St. Rep. 74. In an early case in Massachusetts, where both lots were conveyed simultaneously and no mention was made of the drain which ran from one through the other, after discussing the principles as before stated, the court said: "But neither of these rules will apply to the present case. * * * It is therefore much more like a partition between tenants in common, where each party takes his estate with the rights, privileges, and incidents inherently attached to it." The court goes on to hold that...