Tait v. First Fed. Sav. & Loan Ass'n of N.Y., 139/524.

• Decision Date: 24 November 1942
• Docket Number: 139/524.
• Parties: TAIT et al. v. FIRST FEDERAL SAVINGS & LOAN ASS'N OF NEW YORK.
• Court: New Jersey Court of Chancery

28 A.2d 764

132 N.J.Eq. 493

TAIT et al.

v. FIRST FEDERAL SAVINGS & LOAN ASS'N OF NEW YORK.

139/524.

Court of Chancery of New Jersey.

Nov. 24, 1942.

Syllabus by the Court.

1. In construing a grant of an easement, the accompanying circumstances will be considered in determining the meaning of the language used.

2. In construing a grant of an easement, acts of the parties in giving a practical construction of it will be considered in determining their intent.

3. The same estoppel may operate against the mortgagee as against the mortgagor, where the circumstances are such as to put the mortgagee upon his inquiry as to the nature of the easement.

Suit by Katherine Tait and another against the First Federal Savings & Loan Association of New York to restrain threatened interference with water rights.

Decree for complainants.

Huckin & Huckin, of Englewood (LeRoy B. Huckin, of Englewood, of counsel), for complainants.

Meyers & Lesser, of Newark, for defendant.

LEWIS, Vice Chancellor.

This suit is brought to restrain threatened interference with water rights granted to complainant, Katherine Tait, under a deed executed and recorded in 1929 by her father, Charles R. Lamb, conveying to her part of the premises occupied by him. They were remote from any water supply other than the private system of the grantor, and the deed accordingly granted to the daughter the right "To obtain water from the existing water pipes on the land of the said Charles R. Lamb adjoining that hereby conveyed by running pipes across said adjoining land and connecting them with such existing pipes, or direct from the reservoir itself." Pursuant to the deed, complainants laid pipes connecting with those running from a reservoir then used as the source of supply. Two years later, Lamb, with the knowledge and acquiescence of complainants, discontinued the use of the reservoir, substituting a well which he dug. By like arrangement, and in recognition of their rights, he permitted complainants to connect their pipes with his pipes now running to the well, and these they have used ever since. Defendant, which acquired the Lamb property by foreclosure of a mortgage executed in 1935, threatens to disconnect complainants' pipes.

It is contended by defendant, though conceding that it is bound by the easement created by the deed of 1929, this easement does not extend to a water supply from the well, having been terminated by the change in source of supply; and that any rights enjoyed since by complainants have been under a new oral easement, which is not binding upon defendant. In my opinion this contention is unsound, since it places too narrow a construction on the deed and does not take into consideration the facts and circumstances involved.

From these it seems clear, and...