Paine v. Chandler

• Decision Date: 01 October 1892
• Citation: 134 N.Y. 385,32 N.E. 18
• Parties: PAINE v. CHANDLER.
• Court: New York Court of Appeals Court of Appeals

134 N.Y. 385

32 N.E. 18

PAINE

v.CHANDLER.

Court of Appeals of New York,

Second Division.

Oct. 1, 1892.

Appeal from supreme court, general term, fifth department.

Action by Wells Paine against Jeremiah W. Chandler to compel defendant to restore a stream of water flowing from defendant's premises upon the premises of plaintiff, and to restrain further interference with it. From a judgment of the general term, (12 N. Y. Supp. 955,mem.,) affirming a judgment for plaintiff rendered at special term, (5 N. Y. Supp. 739,) defendant appeals. Affirmed.

EASEMENTS-SEVERANCE OF TENEMENTS-DIVERSION OF WATER.

1. Defendant, the owner of two adjoining farms, conveyed one of them, with its appurtenances, to plaintiff. For many years there had been a spring on the farm retained by defendant, which was walled up so as to hold the water, and from which the water flowed, through wooden logs and iron pipes, to plaintiff's premises. After the conveyance defendant dug a well near the spring, and by means of a ditch diverted the water from the spring to the well, and deprived plaintiff of its use. The evidence showed that defendant was amply supplied with water, and that the diversion was wanton and malicious. Plaintiff had no other convenient and adequate supply of water, and the court found that the loss of the flow impaired the rental value of the farm $50 a year, and depreciated the fee value $6 per acre. The spring was not mentioned in the deed to plaintiff. Held, that a right to the supply of water from the spring passed with the deed as an open and visible appurtenance to the land, and necessary to its full enjoyment. 5 N. Y. Supp. 739, affirmed.

EASEMENTS-SEVERANCE OF TENEMENTS-DIVERSION OF WATER.

2. The fact that defendant diverted the water maliciously is of no importance in determining whether a legal right of plaintiff had been violated.

Chas. J. Bissell, for appellant.

E. A. Nash, for respondent.

The other facts appear in the following statement by Brown, J.:

The judgment appealed from directed the restoration to certain water pipes of the waters of a spring on defendant's farm, so that it would flow, as it had theretofore done, to the plaintiff's premises, and awarded damages for the diversion of the water, and, in case the waters could not be restored to the spring, gave damages for injury to the freehold. Prior to March 26, 1886, plaintiff owned two contiguous farmsin Livingston county, which he used and cultivated as one, and which are referred to in the evidence as the ‘Grimes Farm’ and the ‘Paine Farm.’ On March 26th, he conveyed both farms to defendant. He was then living on the Paine farm, and before removing therefrom, and on April 9, 1886, he repurchased that farm from defendant. In 1867, a pipe had been laid by the then owner of the two farms from a spring on the Grimes farm to the barnyard on the Paine farm, and from that time until the date of the conveyance to the plaintiff sufficient water flowed through said pipes to water the stock kept on the Paine farm, and also to supply other domestic uses. The deed to the plaintiff from the defendant made no mention of the spring, or pipes connected therewith. It described the land, and conveyed it, with the appurtenances. About a year after the conveyance the defendant diverted the water from the spring, so that it ceased to flow to the Paine farm. The court found that the uninterrupted flow of water through the pipe, as constructed and in use at the time of the conveyance to plaintiff, was essential to the full enjoyment of the estate conveyed to him, and that the defendant's act in stopping the flow of water was malicious, and done with intent to injure the plaintiff. Other facts appear in the opinion.

BROWN, J., ( after stating the facts.)

The judgment in this action rests upon the rule of Lampman v. Milks, 21 N. Y. 505, that when the owner of land sells a part thereof he impliedly grants to the grantee all those apparent and visible easements which are necessary for the reasonable use of the property granted, and which are at the time of the grant used by the owner of the entirety for the benefit of the part granted. The learned counsel for the appellant does not attack the principle. but his contention is that the easement involved in this controversy is of the class known as ‘discontinuous,’ and such an easement passes by implication only when absolutely necessary to the enjoyment of the property conveyed. To use his own language, ‘the rule contended for has been confined to cases where the easement claimed was something, without the use of which the premises would be practically wortbless.’ The rule is not confined in its application to continuous easements, but applies to those artificial arrangements which openly exist, and affect materially the value of the respective parts of the estate at the time of the sale. Lampman v. Milks, supra; Courtiss v. Ayrault, 47 N. Y. 73-79. To support his argument upon the claim of absolute necessity the appellant in part relies upon Massachusetts cases. It was said in the opinion in Buss v. Dyer, 125 Mass. 287,that if an easement existed by implication it was because it was absolutely necessary to the enjoyment of the estate. But that remark was not necessary to the decision, as the verdict of the jury was in the defendant's favor, under a charge that there was no easement unless there was a reasonable necessity therefor. The learned judge who delivered the opinion in that case conceded that his statement of the rule was in conflict with the decisions of the courts of England and of the state. In this state the rule of strict necessity is applied to implied reservations, but not to implied grants. In the recent case of Wells v. Garbutt, 132 N. Y. 430, 30 N. E. Rep. 978, it was said: ‘As a grantor cannot derogate from his own grant, while a grantee may take the language of the deed most strongly in his favor, the law will imply an easement in favor of a grantee more readily than it will in favor of a grantor.’ This distinction between implied reservations and impled grants, there pointed out, is well founded in the law, although in some of the reported cases it has apparently been overlooked. In Johnson v. Jordan, 2 Metc. (Mass.) 234, Chief Justice SHAW, after stating the rules applicable to the construction of a grant, said: ‘If a man owning two tenements has built a house on one and annexed thereto a drain through the other, if he sell and convey the house, with the appurtenances, such a drain may be construed to be de lacto anncxed as an appurtenance, and pass with it, because such a construction would be most beneficial to the grantee; whereas, if he were to sell and convey the lower tenement, still owning the upper, it might reasonably be considered that, as the right of drainage was not reserved in terms, it could not be claimed by the grantor. The grantee of the lower tenement, taking the language of the deed most strongly in his own favor, and against the grantor, might reasonably claim to hold his granted estate free of the incumbrance.’ See, also, Wheeldon v. Burrows, 12 Ch. Div. 31, 49; Washb. Easem. (4th Ed.) pp. 105, 106; Burr v. Mills, 21 Wend. 290. In Jonnson v. Jordan, supra, to which appellant refers, the conveyances of the dominant and servient tenements were simuitaneous, and the right to the easement was denied upon a construction given to the deeds and the circumstances attending their delivery. In Buss v. Dyer, 125 Mass. 287, the chimney in which an easement was claimed had worn out, and had been taken, and the jury found as a fact that the...