Kelly v. Nagle

• Decision Date: 09 March 1926
• Docket Number: 83.
• Citation: Kelly v. Nagle, 150 Md. 125, 132 A. 587 (Md. 1926)
• Parties: KELLY v. NAGLE.
• Court: Maryland Court of Appeals

132 A. 587

150 Md. 125

KELLY v. NAGLE.

No. 83.

Court of Appeals of Maryland

March 9, 1926

Appeal from Circuit Court, Harford County, in Equity; Wm. H. Harlan Judge.

"To be officially reported."

Bill by Jennie Nagle against James M. Kelly. From a decree granting a perpetual injunction, defendant appeals. Reversed, and bill dismissed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, and WALSH, JJ.

Stevenson A. Williams, of Bel Air (Robinson & Fahey and Fred R Williams, all of Bel Air, on the brief), for appellant.

Robert H. Archer, Jr., of Bel Air (W. Worthington Hopkins, of Bel Air, on the brief), for appellee.

DIGGES J.

This appeal is from a decree of the circuit court of Harford county perpetually enjoining the appellant (defendant below) from in any way interfering with the water pipe which enters the spring of the defendant, or doing anything to prevent the flow of the water from the said spring through the pipe. This decree was passed upon a bill, answer, and testimony, and was in response to a prayer of the bill. The bill was for an injunction to restrain the defendant from interfering with the plaintiff in the use of water from a spring located on the land now belonging to the defendant.

The facts as disclosed by the record are substantially these: Thomas F. Nagle, the father-in-law of the appellee, by deed dated March 1, 1900, acquired from Alverda Hood and husband a tract of land in Harford county lying on the south side of the public road leading from Schuck's corner to Thomas' run, described by courses and distances in said deed, and containing according thereto 56 acres 27 perches of land. Shortly after acquiring this property, Thomas F. Nagle moved to, and resided upon, the same. On March 27, 1915, Thomas F. Nagle and wife conveyed to the appellant, James M. Kelly, a portion of the land which he had obtained from Hood. This deed described the land conveyed by courses and distances, and by such description contained 47 acres of land more or less. After this conveyance Thomas F. Nagle had remaining, according to the plat forming a part of the record, 6 acres 27 perches of the land originally obtained by him from Hood. Upon this 6 acre 27 perch tract were located the dwelling house of Thomas F. Nagle and also a large spring inclosed with a wall. This spring was located between the dwelling house and the public road, about 125 feet distant from the latter. By deed dated April 19, 1921, Thomas F. Nagle acquired in fee simple from Spencer Nagle a tract of land containing 6 1/2 acres lying on the north side of the public road above referred to, and being separated from the tract upon which the spring was located by said public road. On February 14, 1922, Thomas F. Nagle and wife conveyed to the appellee the 6 1/2-acre tract on the north side of the road, which he had previously acquired from Spencer Nagle in 1921. This deed was a feesimple deed signed by Thomas Nagle and wife, and contained the following clause:

"Together with the buildings and improvements thereupon, and all and every the rights, roads, ways, waters, easements and appurtenances thereto belonging or in any wise appertaining."

On November 16, 1922, the following deed was executed by Thomas F. Nagle and wife to the appellee:

"This deed, made this 16th day of November, in the year nineteen hundred and twenty-two, by Thomas F. Nagle and Capitola Nagle, his wife, of Harford county in the state of Maryland.

Whereas, Thomas F. Nagle is the owner of certain lands situate in Harford county, state of Maryland, more particularly described in a deed from Alverda Hood and husband to said Thomas F. Nagle, dated March 1st, 1900, and recorded among the land records of Harford county in Liber W. S. F. No. 99, folio 167, on which there is located a spring which is about one hundred fifty (150) feet from the public road leading from Schuck's corner to Thomas' run.

And, whereas, the said Thomas F. Nagle intends to grant unto a certain Jennie Nagle the right and privilege of laying a water pipe, not exceeding three-quarters of an inch in diameter, from the said spring to the lands of Jennie Nagle near or adjoining the said lands of Thomas F. Nagle so that the said Jennie Nagle may enjoy the use of such water from said spring as she may need on her said property.

Now this deed witnesseth that in consideration of the premises, and the sum of five dollars ($5.00) the receipt whereof is hereby acknowledged, the said Thomas F. Nagle and Capitola Nagle, his wife, grant, bargain and sell unto the said Jennie Nagle, her heirs and assigns, an easement and right, use and privilege to draw and use from said spring, for the purposes aforesaid, all water that she may need on her said property as aforesaid, with the right to said Jennie Nagle, her heirs and assigns, of ingress and egress over and upon the lands of the said Thomas F. Nagle for the purpose of keeping in repair the pipe as aforesaid.

Witness our hands and seals:

Thomas F. Nagle. [ Seal]

Capitola Nagle. [ Seal]

Teste: Lewis J. Williams."

Subsequent to the execution of this deed Thomas F. Nagle died, and Philip H. Close, trustee, under the decree of the circuit court of Harford county, sold and conveyed to the appellant, by deed dated May 19, 1924, that part of the land which Thomas F. Nagle had obtained from Hood which was not sold by him during his lifetime, which contained 6 acres 27 perches, and upon which the spring in question is located. Some time in November, 1922, the appellee, in pursuance of the deed to her of November 16, 1922, giving her that right, laid a three-quarter inch pipe from the spring across the county road to a milk house on her tract of 6 1/2 acres, and she continued to use this pipe until February, 1925, at which time the appellant plugged up the plaintiff's pipe in the said spring, and felled some trees across the spring. Because of this action on the part of the appellant this suit was instituted.

The plaintiff below (appellee here) claims her right to use the water from the spring for the benefit of her property on three grounds: First, by right of prescription acquired by adverse user by herself and her predecessors in title for more than 40 years, during which time the water for the household and blacksmith shop located on her 6 1/2-acre tract was obtained from the spring in question continuously, without permission or license from the owners of the property on which the spring is located; second, that at the time of the execution of the deed of Thomas F. Nagle to the appellee in February, 1922, there was an implied grant, appurtenant to the property sold, of the use of the spring in question, for the reason that at the time the grantor was the owner of the land on which the spring was located, and the occupants of the property sold to the appellee were at that time, and had been for more than 30 years prior thereto, using the water from the spring; third, by virtue of the deed from Thomas F. Nagle and wife to the appellee, dated November 16, 1922, expressly conveying her the right to lay and maintain the pipe from the spring to her property.

There may be some question as to whether or not the acts of user by the owners and occupants of the 6 1/2-acre tract, which is the dominant tenement, were sufficient to create an easement by prescription. It is unnecessary for us to determine that question in this case, for, assuming the contention of the appellee to be correct, and that the easement had been validly acquired by prescription, yet when the ownership of the dominant and servient estates became, in 1921, united in Thomas F. Nagle, any easement then acquired and existing was extinguished. In 14 Cyc. at page 1188, it is said:

"An owner of land cannot have an easement in his own estate in fee, for the plain and obvious reason that in having the jus disponendi, the full and unlimited right and power to make any and every possible use of the land, all subordinate and inferior derivative rights are necessarily merged and lost in the higher right."

In McTavish v. Carroll, 7 Md. 352, at page 358 (61 Am. Dec. 353) we said: "For a man cannot subject one part of his property to another by an easement, because he cannot have an easement in his own property, as the same object is obtained by him through the exercise of the general right of property."

In Capron v. Greenway, 22 A. 269, 74 Md. 289, we held that, where one became the owner of the dominant and servient estates, and there being no one else entitled to either, they were merged, and the easement was extinguished. And again, in Duval v. Becker, 32 A. 308, 81 Md. 537, this court, speaking through Judge McSherry, said:

"It is true that when the same person becomes the owner of the dominant and servient estates, and there is no intervening or outstanding interest or title held by someone else in or to the appurtenant easement, the unity of the two estates in the one individual necessarily extinguishes and merges the easement appurtenant to the dominant estate, because no person can have an easement in the land which he himself owns." Mitchell v. Seipel, 53 Md. 251, 36 Am. Rep. 404; Oliver v. Hook, 47 Md. 308.

The next question is whether or not, by reason of the deed of February 14, 1922, from Thomas F. Nagle to Jennie Nagle there was an implied grant of the easement to use water out of the spring located upon the land then remaining in the ownership of Thomas F. Nagle. An implied grant of an easement is based upon the principle of construction that, where a man grants a definite thing, there accompanies it, by implication, as a part of that grant, everything necessary to its reasonable enjoyment, or at least those things which the common owner has used for the benefit of, and which are...