Miller v. Skaggs.

• Citation: 79 W.Va. 645
• Decision Date: 20 February 1917
• Docket Number: No. 3182.,3182.
• Court: Supreme Court of West Virginia
• Parties: Miller v. Skaggs.

79 W.Va. 645

Miller

v.Skaggs.

No. 3182.

Supreme Court of Appeals of West Virginia.

Submitted February 13, 1917.

Decided February 20, 1917.

1. Easement Grant Necessity.

To raise an implied reservation or grant of an easement the existing servitude must at the time of the deed be apparent, continuous and strictly necessary, (p. 647).

2. Same Bights of Purchaser Benefits and Burdens.

It is a general rule of the common law, applicable in such cases, that when the owner of two tenements sells one of them, or the owner of an entire estate sells a portion thereof, the purchaser takes the tenement or portion sold with all the benefits and burdens which appear at the time of the sale to belong to it, as between it and the property which the vendor retains, (p. 648).

3. Same Drain Visibility.

An apparent easement need not be actually visible. It is enough that the facts and circumstances, fairly construed, will disclose it as in the case of a drain pipe under the surface into which the water is conducted from a roof. (p. 648).

4. Same Reservation or Grant Necessity.

The rule of strict necessity applicable to an implied reservation or grant of an easement is not limited to one of absolute necessity, but to reasonable necessity, as distinguished from mere convenience, (p. 649).

Error to Circuit Court, Summers County.

Action on the case for damages by Janet E. Miller against C. H. Skaggs. Judgment for plaintiff, and defendant brings error.

Affirmed.

T. N. Read, for plaintiff in error.

Wm. H. Sawyers and R. F. Dunlap, for defendant in error.

Miller, Judge:

An action on the case for damages for obstructing a private sewer serving the adjoining properties of the parties and other properties and running under and across a corner of defendant's lot at the rear end thereof.

Plaintiff obtained a verdict and judgment for three hundred dollars, and defendant sued out the present writ of error.

One J. A. Graham once owned both properties, and then in connection with the owners of adjoining properties built and maintained the sewer in question. All properties served, including that of the defendant, are situated on a hill side; defendant's property faces Second Avenue, as does the property of one Cundiff, at the corner of James Street and Second Avenue, and as does the hotel property also of plaintiff, that of the defendant being situated between the Cundiff property and plaintiff's hotel property; and the sewer in question after leaving the lot of defendant runs down between his property and the plaintiff's lot, and connects into the city sewer on Second Avenue. The property of plaintiff affected by the defendant's act complained of, however, fronts on James Street immediately back of the Cundiff property, and between it and the property of one James, and below it and the property of one Pucket, the other properties connected into said private sewer.

The sewer in question serves both as a sanitary and a storm sewer, and there is connected into it not only water closets, bath tubs, and sinks from the respective houses on the lots, but down spouts from the roofs thereof are also run into it, the latter on the plaintiff's property evidenced by terra cotta tiling projecting above the ground and plainly visible from defendant's property; and the lateral pipe or sewer from the Cundiff property crosses the entire width of defendant's property back of his house and is connected into the sewer before leaving his lot. The evidence shows that the main trunk of this private sewer occupies the natural channel for the drainage of the surface waters from the hill side and is practically coincident with an old drain or gutter once open and denned for a part of the way at least across defendant's lot by a stone curbing, but at the time of the sale and conveyance to defendant the sewer had been laid under ground and was in use and serving the properties of all parties connected therewith.

Defendant obtained his property by deed dated November 10, 1909, and the injuries complained of occurred on or about September 30, 1915. A few days prior to that time defendant had dug down to and torn up the sewer where it crossed under his lot, and stopped it up with old rags and clothing, completely shutting off the flow of the water and sewage, and a heavy rainfall occurring thereafter and at the time of the injury, the water and sewage backed up and overflowed the basement of plaintiff's house, resulting in the damages for which she sued.

Neither in the deed from Graham to his immediate grantee, nor in any of the intermediate deeds down to and including the deed from one Butler and wife to defendant was there reserved in terms any easement over the lot of defendant for the purpose of said sewer, and it is conceded that if such easement exists it is one implied in the original grant by Graham and the intermediate deeds referred to.

In accordance with the weight of modern English and American decisions we have decided that an implied reservation or grant of an easement can only arise where at the time of the deed or grant the existing servitude is apparent, continuous, and strictly necessary to the enjoyment of the dominant estate. Hoffman v. Shoemaker, 69 W. Va. 233, and authorities cited.

And there seems to be no material distinction in the application of this principle between an implied reservation and implied grant of such an easement, except that in a grant the terms of the grant according to the general rule is to be construed most strongly against the grantor in favor of the grantee. 9 E, C. L. 765, and cases cited.

And there is a well recognized rule of the common law, applicable to cases of implied reservations or grants of such easements, namely, that where the owner of two tenements sells one of them, or the owner of one entire estate sells a portion thereof, the purchaser takes the tenement or portion sold with all the...