Hansel v. Collins

• Decision Date: 13 January 1942
• Docket Number: 70.
• Citation: Hansel v. Collins, 180 Md. 209, 23 A.2d 686 (Md. 1942)
• Parties: HANSEL et ux. v. COLLINS et ux.
• Court: Maryland Court of Appeals

23 A.2d 686

180 Md. 209

HANSEL et ux. v. COLLINS et ux.

No. 70.

Court of Appeals of Maryland

January 13, 1942

Appeal from Circuit Court, Allegany County; William A. Huster Judge.

Suit in equity by Charles S. Hansel and wife against William C Collins and wife to enjoin interference with plaintiffs' use of a water pipe line by defendants, who filed a cross-bill for injunction against plaintiffs' use of water from such line.Decree for defendants, and plaintiffs appeal.

Affirmed.

Charles G. Watson, of Cumberland (Morgan C. Harris, of Cumberland, on the brief), for appellants.

Walter C. Capper, of Cumberland, for appellees.

Before SLOAN, JOHNSON, DELAPLAINE, COLLINS, FORSYTHE, and MARBURY, JJ.

MARBURY Judge.

The bill of complaint in this case was filed by the appellants in the Circuit Court for Allegany County on October 2nd, 1940, to enjoin the appellees from interfering with the use of a water pipe line by the appellants.To this bill an answer was filed, and also a cross-bill, in which the appellees asked that the appellants be enjoined from using the water, and a mandatory injunction be issued against them to cease such use and to sever the connections they had made with the water line.The appellants answered the cross-bill, testimony was taken, and the Court below signed a decree dismissing the bill of complaint, and enjoining the appellants from using the water, and requiring them to remove any connections they had with the water line.From this decree the appeal herein was taken.

The testimony shows that in May, 1884, the property of the appellants and the property of the appellees at Rawlings, Allegany County, were both owned by a certain Lynn Hutson.On May 14th, 1884, Lynn Hutson and his wife, Mary M. Hutson, conveyed to Mary Shaw the property which is now owned by the appellees.This deed was recorded on May 21st, 1884.Five days after the date of this deed, and on the 19th day of May, 1884, Lynn Hutson conveyed to his wife, Mary M. Hutson, the property now owned by the appellants.In the first deed, in which the grantee of the second deed joined as grantor with her husband, there is no mention of any reservation of any rights in the property granted, it being an out and out conveyance in fee simple.The Shaw property, which is that of the appellees, was subsequently placed by Mary Shaw in the name of herself and her husband, Alexander Shaw, as tenants by the entireties.At her death it passed to Alexander Shaw, who died owning it.His will was probated on July 28th, 1905.He devised the property to Mary S. Rawlings and Norma Rawlings for their lives, and to the survivor for her life.Remainders were left for one-half interest in the farm each to the children or descendants of each of the life tenants, living at the death of the survivor, with provisions that the children and descendants of one should take all in case there were no children or descendants of the other.Both of the life tenants married, Mary Rawlings becoming Mary Lanham and Norma Rawlings becoming Norma Wentz.Norma Wentz and her husband filed an equity suit against Mary Lanham and her husband and all the remaindermen for the sale of the property, and trustees were appointed.These trustees sold the property to the appellees, and conveyed it to them on March 12th, 1940.The testimony shows that both of the life tenants left the property when they were married in 1906, but Mrs. Wentz returned there in 1930 and lived there until 1940, when the property was sold to the appellees.Both of the lift tenants were living there in 1905 with their parents.

During the lifetime of Alexander Shaw, he constructed a two inch water line from a point near the foot of a mountain on his property at Mill Run.This water line came down over his property to bring water to his mansion house, and in so doing it ran across a corner of the property of the appellants.In 1905 Mrs. Wentz was asked by Mrs. Hutson, the owner of the appellants' property at that time, if she could tap this two inch line by a one inch pipe line in order to provide water for the Hutson house on the property now owned by the appellants.Permission was given by Mrs. Wentz to Mrs. Hutson to do this verbally, and Mrs. Wentz, who testified in the case, stated that she told Mrs. Hutson that she could have it as long as she lived.Mrs. Hutson died in 1912, and her property was sold through equity proceedings in 1920.A deed was made by the trustees appointed in such proceedings conveying this property to the appellants on June 9, 1921.The appellants' property touches Mill Run, which in some places appears to go through it, so that it is not cut off from water.The appellant, Charles S. Hansel, testified that when he bought the place the water from the one inch pipe line was used in the house and the watering trough, that he built six houses, the first one about ten or fifteen years ago, and got water for these houses from this line, abandoning the connection with the watering trough, but also putting in a connection into his milk house.That aside from his own dwelling house and dairy house, there are nine or ten families in his houses being supplied with the water.The appellee, William C. Collins, testified that after he bought the property he told Mr. Hansel he would either have to disconnect his water or pay water rent, and that the appellant'allowed he could pay water rent', and bills were sent him, but never paid.This conversation took place during April, 1940, when Mr. Collins got his deed.

There is further testimony that the use of all this water by the appellants interferes with the flow to the appellees' dwelling house, although this is denied.There is also testimony produced by the appellants that the Hutson one inch line was put there about forty-five years ago, but this is by a witness who has no way to fix it except his recollection.It is directly contrary to the testimony of Mrs. Wentz, who gave the permission to connect it in 1905, and to the testimony of the daughter of Mrs. Hutson, who said that the one inch line was laid in 1905, and during the entire lifetime of her mother, water from it was only used in the house and in the watering trough.She also testified that the two inch water line was laid from the mountain in 1895 or 1896 by Alexander Shaw, who had married Mr Hutson's sister.A witness, William Leese, who was seventy-five years old the day he testified, said that he did the actual work of laying the pipe line for Major Shaw, who paid for it.That at the time it was built, there was no connection made for the Hutson place, but simply a two inch water line from the mountain side through Mill Run to the Shaw mansion.The witness was unable to give even an approximate year as to when this was done.Another witness, Clara Hardy, who was sixty-one years old, remembered seeing Mr. Leese there digging, but she could...