Spaulding v. Abbott

• Decision Date: 12 March 1875
• Citation: 55 N.H. 423
• Parties: Spaulding v. Abbot.
• Court: New Hampshire Supreme Court

55 N.H. 423

Spaulding v. Abbot.

Supreme Court of New Hampshire

March 12, 1875

A conveyed to S. a tract of land with buildings thereon supplied with water from a spring on land of H. by an aqueduct. In describing the premises conveyed, no mention was made of the aqueduct, or of any easement in the land of H. Following the description was the habendum in these words "To have and to hold the said granted premises, with all the privileges and appurtenances to the same belonging." Held, that the word "appurtenances" in the habendum would not be construed to convey an easement in the land of H., which, not having ripened into a legal right, had not become legally attached to the premises conveyed.

By the use of the word "appurtenances" in the habendum of a deed, an easement will not pass unless legally appurtenant to the land in the hands of the grantor.

An easement will not pass when not legally appurtenant to the land, unless the deed contain proper words describing it, and showing the intention of the grantor to pass it

COVENANT BROKEN, by James B. Spaulding against Ann Abbot administratrix of James W. Abbot. The declaration alleges that the

decedent, by his deed, conveyed to the plaintiff certain land, described as follows: "Commencing, &c. * * thence upon the bank of said river bed to the north line of James Howley's land; thence on said Howley's line, &c., * * to a cedar post; * * to have and to hold the said granted premises, with all the privileges and appurtenances to the same belonging."

The declaration alleges that the deed contained full covenants of title and against incumbrances, &c. (making profert of the deed), and that "on said premises, so by said deed conveyed to him, was a large and valuable dwelling-house and barn and outbuildings; and, as appurtenances to the same at the time of said conveyance, there was an aqueduct and a stream of water running therein and belonging thereto, which water came from a spring on the land of said James Howley; and said aqueduct and stream of water running therein were then and there appurtenances to said house, barn, and land, and said house, barn, aqueduct, and stream of water were then and there a part of the premises conveyed as aforesaid." The breach alleged is, that the decedent "did not own the aqueduct and stream of water running therein, so a part of said appurtenant to said premises," and had no right to convey the same, &c., and did not defend the same, &c., and that said "aqueduct and stream of water was taken from him," &c.

The declaration and deed therein referred to are made a part of the case, and the court transferred to the full bench the question whether the deed purports to convey the right to the water running from and upon the land of said Howley in said aqueduct.

The parties may hereafter try by the jury any questions of fact presented by the pleadings.

Fletcher & Heywood and Ray & Drew, for the plaintiff. G. A. Bingham, for the defendant

SMITH J

The question in this case is, whether James W. Abbot, by the use of the word "appurtenances" in the habendum clause of his deed, conveyed to the plaintiff the right to take water from the land of Howley by an aqueduct to the premises conveyed by said deed. In the description of the premises conveyed, no mention is made of any such easement or right. It is nowhere mentioned in the deed or in any way alluded to, unless the construction to be given to the word appurtenances in the habendum is broad enough to cover it; and if not included under that term, it is not embraced within any of the covenants of his deed.

Whether such easement was annexed to the estate he conveyed or not, it was doubtless competent for Abbot to include it in express terms in his deed, and to covenant to defend it against all claims, provided he was willing to take that risk; and in case of failure the plaintiff could recover for breach of the covenant.

It is clear, upon authority, that when an easement has become

appurtenant to a dominant estate, a conveyance of that estate carries with it the easement belonging to it, whether mentioned in the deed or not, although not necessary to the enjoyment of the estate by the grantee---2 Washb. on Real Property 28, Kent v. Waite, 10 Pick. 138, Underwood v. Carney, 1 Cush. 285, Seavey v. Jones, 43 N.H. 443, Barker v. Clark, 4 N.H. 382; and an easement may be acquired by express grant, implied grant, and by prescription. 2 Washb. on Real Property 27. If Abbot acquired in either of these three modes the right to the flow of water in this aqueduct from Howley's land, it passed by his deed as appurtenant to the estate conveyed, although no mention of it was made in the deed.

The question, however, transferred for our consideration, is not whether such easement had been acquired by grant or prescription so that it passed as appurtenant to the land, but whether the deed purports to convey such easement; and this brings us to the consideration of the office of the habendum. It is thus explained by GILCHRIST, C. J., in Brown v. Manter, 21 N.H. 533: "The technical meaning of the premises in a deed is all that precedes the habendum. Shep. Touch. 75; Co. Lit. 6, 7; Sumner v. Williams, 8 Mass. 174. This is a simple, but a perfectly accurate definition. The office of the habendum is not to grant the estate, but only to limit its certainty---Co. Lit. 6 a, Buckler's case, 2 Co. 55, Earl of Shrewsbury's case, 9 Co. 47 b, Com. Dig., Tait, (E. 9); but the habendum cannot enlarge the premises. Com. Dig., Tait, (E. 10). Nothing can be limited in the habendum of a deed which has not been given in the premises, because, the premises being that part of a deed in which the thing is granted, it follows that the habendum, which is only used for the purpose of limiting the certainty of the estate, cannot increase the gift, for in that case the grantee would in fact take a thing which was never given to him. 4 Cruise's Dig., tit. 32, ch. 20, sec. 73. But if a thing is comprehended in the premises, and has another name in the habendum, the habendum is good---ib., sec. 74; and it is held in Manning v. Smith, 6 Conn. 289, that the habendum never extends the subject-matter of the grant."

To the same effect is the language of SEDGWICK, J., in Sumner v. Williams, 8 Mass. 174. The defendants as administrators, under license, had sold and...