Sanderlin v. Baxter

• Decision Date: 23 March 1882
• Citation: 76 Va. 299
• Parties: SANDERLIN v. BAXTER.
• Court: Virginia Supreme Court

76 Va. 299

SANDERLIN v. BAXTER.

Supreme Court of Appeals of Virginia.

March 23, 1882

Appeal fro decree of circuit court of Norfolk city in suit of Oscar F. Baxter against Willis B. Sanderlin, perpetuating an injunction to prevent encroachment on plaintiff's easement appurtenant to his estate " " Woodland," over the defendant's estate " Fairfield." From this decree Sanderlin obtained an appeal to this court. Opinion of court gives the facts.

Burroughs & Bro. and L. D. Starke, for appellant.

1. Upon overruling demurrer and motion to dissolve, cause should have been continued for final hearing on its merits. 1 Dan Ch'y Pr. 1780; High on Injunctions, § 3 and § 935.

2. Injunction perpetuated, was granted by a county judge in vacation, who was without such authority.

3. Doctrine that an " old existing right" of easement may pass by grant of the land to which it is attached does not apply where grantor owns both dominant and servient tract. Scott v. Bentel, 23 Gratt. 6; James v Plant, 4 A. & E. 749; Thompson v. Waterlaw, Law Reports, 6 Eq. Cases, p. 36; Tabor v. Bradley, 18 N.Y. 109; Spaulding v. Abbott, 55 N.H. 423; Standiford v. Gondy, 7 West Virginia, 364.

4. The right of drainage did not pass by deed of 1811, under doctrine of " " heritages." Washburne on Easements, § 25. The easement was discontinuous--i e., requiring man's interference to make it efficient; and it must be shown to be absolutely necessary to the enjoyment of the premises granted. Lampann v. Milks, 21 N.Y. 515-16.

5. The right to easement being disputed, the courts will ordinarily first require title to be established at law. Washburne on E. p. 698; High on Inj. § 486.

6. The right to drainage was not established by prescription. That requires use under claim of right exclusive, continuous, and uninterrupted. Such was not the case here. The use was interrupted from 1811 to 1816; from 1816 to 1854 it was tolerated by the life tenant, which user did not affect the reversioners. In 1856 it was denied by the reversioners, and the drains closed. Plaintiff attempted to have a drain condemned, and finally abandoned it. In 1859 he purchased the right of Brickhouse, who then owned " Fairfield," subject to a trust deed, under which it was sold in 1866, and plaintiff's purchased right ceased.

7. No facts are stated in the bill to show the injury was irreparable in damages. Mere easement is insufficient. High on Inj. § 35; 2 Sto. Eq. § 925.

Ellis & Thom, for appellee.

OPINION

BURKS, J.

The appellant assigns as error in the decree of the circuit court, that the cause was prematurely heard and disposed of on the merits. It is claimed that it was submitted solely on a motion to dissolve the injunction, and that it was not ready for hearing. This is said in argument, but does not appear to be supported by the record. It is true, there was a motion to dissolve the injunction, but the case was ripe for hearing, and the decree shows that it was fully head upon the pleadings and proofs. The judge evidently considered the cause to be so submitted, and not merely on the motion to dissolve. If by this action the appellant was taken by surprise, his remedy was plain. As soon as the decree was pronounced, and during the term, he should have applied to have the decree set aside, except so far as it related to the motion, and this application, if denied by the court, should, with the grounds on which it was made and rejected, have been spread on the record, so that this court might be enabled to see whether the refusal was error or not. The record discloses no such application or action of the court, and in a court of errors the maxim is quod non apparet non est. We can only look to the record, and in that we find no such error as is complained of.

The original injunction was granted by a judge of the county court in August, 1878, and was made perpetual by the decree of the circuit court. This is assigned as error on the ground that the judge of the county court had no authority, under the statutes, to award an injunction. (See Code of 1873, ch. 154, § 4; ch. 175, § 6; Acts of 1874, ch. 144, § 4.)

It is needless to inquire or decide whether the judge of the county court had the jurisdiction he exercised. Both bills prayed for an injunction, and if the judge had no power to award it, his order was merely inoperative. But the circuit court, nevertheless, had the right at the hearing to award an injunction " although not prayed for in the bill," if " it was necessary for the purposes of complete justice" (Kerr on Injunctions, ch. 29, § 4, p. 637), and hence might adopt the previous order as its own, as it did in effect by making it perpetual.

As to the merits. We do not propose to discuss the evidence in detail. It is sufficient to give our conclusions.

Anthony Walke, Sr., was the owner of two tracts of land, " Woodlawn" and " " Fairfield," in the county of Princess Anne. By deed, in November, 1811, he conveyed " Woodlawn" to his son, Anthony Walke, Jr., and in 1816 by his will he devised the other tract, " Fairfield," to his son David M. Walke, with a contingent limitation to the children (except the said Anthony) of the grantor. The appellant, Sanderlin, claims title to " Fairfield" under this devise and subsequent conveyances. At the date of the conveyance of " Woodlawn" the two farms were, as they are now, separated by a public road. Topographically, " " " Woodlawn" is higher than " Fairfield." While Anthony Walke, Sr., was the owner of both farms, several ditches or drains had been cut for some distance on the " " " Woodlawn" tract to the intervening road and across it into and through the " " " Fairfield" tract, so as to connect with the eastern branch of Elizabeth river. At the time " Woodlawn" was conveyed as aforesaid, these ditches or drains were open and visible, and were then, as they still are, necessary for the convenient and beneficial use and enjoyment of the " " " Woodlawn" tract. They were constructed to carry off the surface water and prevent its accumulation on that farm, and the draining could be effected by no other means at reasonable cost and expense. It seems that after Baxter acquired " Woodlawn," he did cut a ditch through his own land to Deep Branch; but this was done to drain the land owned by him and not embraced in the Walke deed, and was closed to protect his crops from the water thrown upon his land by Sanderlin's stopping the ditches before mentioned. The very decided weight of the proof is, that " Woodlawn" can not be effectually drained to Deep Branch without a heavy expenditure of money, and that the ditches through Sanderlin's land are essential to the draining. These ditches have been used to drain " " " Woodlawn" ever since they were first cut, continuously, with the exception of a short period, until they were obstructed by Sanderlin in 1878, which caused Baxter to file his bill.

Upon these facts, although the right to the use of the ditches as an easement was not given in express terms by the deed of the elder Walke to his son, under whom Baxter claims, yet we are of opinion that it passed with the land granted as an incident.

This doctrine of the grant of an easement by implication, under circumstances such as have been stated, seems now to be well settled. The...