Larsen v. Peterson

• Decision Date: 14 January 1895
• Citation: 53 N.J.E. 88,30 A. 1094
• Parties: LARSEN v. PETERSON.
• Court: New Jersey Court of Chancery

30 A. 1094

53 N.J.E. 88

LARSEN

v. PETERSON.

Court of Chancery of New Jersey.

Jan. 14, 1895.

(Syllabus by the Court.)

Bill by Peder Larsen against John Peterson. Decree for complainant.

E. B. Godell, for complainant.

Scott German, for defendant.

PITNEY, V. C. The object of this bill is to establish and protect complainant's right In, and enjoyment of, an easement. The circumstances, which are not open to serious dispute, are peculiar. For some years prior to and on the 1st day of June, 1893, Mrs. Elizabeth Mabey, of Montclair, Essex county, was the owner of a lot of land fronting on Elmwood avenue in that city, upon which was a double frame dwelling, comprising, under one roof, two complete dwellings, separated only by an ordinary lath and plaster partition, without any openings. Some years before that date she had procured a well to be drilled in the earth and underlying water-bearing rock in the rear of this building, and had laid therefrom two independent water pipes, placed in the earth, leading to the dwelling, one into the sink of each kitchen. Each dwelling was supplied with an ordinary hand pump, and in this manner, and in no other way, each of the separate dwellings was supplied with water. There was nothing visible on the ground iu the rear of the house to indicate the existence of a well, or its connection with the dwelling, and there was no water main in the street. This being the situation, Mrs. Mabey, in the spring of 1893. was minded to sell this property, but was unwilling to sell a part without the whole. At the same time both complainant and defendant were desirous of purchasing houses for their individual use, and, hearing of this property, called together on Mrs. Mabey,—that is, complainant and John Peterson, acting as agent for his wife,—and looked at the property. They looked at only one of the dwellings,—that in the actual occupation of Mrs. Mabey, the other being in the occupation of a tenant,— and were informed, and truly, by Mrs. Mabey, that the two dwellings were precisely alike in all respects, and, indeed, this was plainly indicated by their exterior appearance. In the kitchen of the part occupied by Mrs. Mabey both complainant and Peterson saw and particularly noticed the pump in the sink, and tasted the water from it, and were informed that it came from a drilled well in the back yard, and that both dwellings were supplied in the same way, and from the one well. The precise location of the well was not pointed out, and was not known either to Mrs. Mabey or to either of the parties until after the conveyances presently to be mentioned. Both complainant and defendant knew that there was no water main in the street. On that occasion complainant and John Peterson agreed together and with Mrs. Mabey to purchase the property at a price named, and agreed that it should be equally divided between them, and that the title should be made to each in severalty, according to a dividing line to be agreed upon between them, and actually run on the ground by a surveyor in such a manner that it should run through the partition separating the two dwellings, and then divide the land as nearly equally as practicable. Peterson at the same time gave $10 for the choice of the houses, and then and there chose the house in which Mrs. Mabey was living; but such choice had no reference to the location or control of the well, and was influenced entirely by the circumstance that the house so chosen had, owing to the shape of the lot, more light and air in its front and side than the other. The survey was had accordingly, and a description of the dividing line given, and deeds of conveyance in accordance with it, dated June 1, 1893, were executed by Mrs. Mabey on June 5th, and duly delivered at the same moment, one to complainant and the other to Mrs. Peterson, the wife of John. Both parties took possession. Subsequently Peterson discovered that the well was on his land, and then cut off the pipe leading to complainant's kitchen, who thereupon attempted to repair it, and was prevented by the defendant; whereupon he flled this bill, asking that his rights in the premises may be established, and the defendant enjoined from preventing him from renewing the water-pipe connection with the well. Upon the filing of the bill an injunction was granted accordingly, and the complainant took advantage of it to restore the connection between his pump and the well to its former condition. At the hearing there was no contention that the well did not supply water enough for both families, or that complainant had made an unreasonable use of it.

The above are the facts as I have found them. Peterson does, indeed, deny that he was told on the occasion in question that the other dwelling had a pump like the one they inspected, or that there was but one well for both houses. But the contrary is supported not only by the evidence of complainant, but also by that of Mrs. Mabey and her daughter, both disinterested witnesses,—or rather, if they have any interest, it is against complainant, since Mrs. Mabey gave Mr. Peterson a warranty deed,—who gave their evidence in a way to command the belief of the court Besides, Peterson does not deny that he saw the pump, and heard that it was supplied with water from a well, but does deny that he was told that the other dwelling was similarly supplied. But he know that both dwellings were a part of one building, and that in external appearance they were precisely alike; that the other dwelling was occupied. He fixed the value of the choice between the two houses at only $10, which was due, as he admits, to a difference in the size of the front yards, which would necessarily result, as shown by the plot, from a division of It in the way proposed, and agreed upon. He does not contend that his choice was due to any supposed difference in the interior of the houses, or to the presence of water in one and its absence in the other, or that he supposed that each house had an independent supply of water. These circumstances render it highly improbable that he did not, in some way, learn that both dwellings were supplied with water in the same way, and from the same source. It was, to say the least, not probable that the proprietor of such a lot and building would incur the expense of an independent water supply to each dwelling. Upon this case the complainant, in his able brief, makes two points, which support each...