Toothe v. Bryce

• Decision Date: 18 October 1892
• Parties: TOOTHE v. BRYCE.
• Court: New Jersey Court of Chancery

25 A. 182

50 N.J.E. 589

TOOTHE

v. BRYCE.

Court of Chancery of New Jersey.

Oct. 18, 1892.

(Syllabus by the Court.)

Bill by William Toothe against William Bryce to establish and protect complainant's right to the benefit of a flow of water to his premises from defendant's land. Injunction granted.

The other facts fully appear in the following statement by Pitney, V. C.:

The complainant by his bill seeks to establish and protect his right to the benefit of a flow of water to his premises from the defendant's premises through two several pipes, laid underground, and forced up by two hydraulic rams, situate, with the spring that drives them on the defendant's premises. The facts as they appear in the pleadings and affidavits, or are admitted by the parties, for the purposes of this motion only, are as follows: Before and on the 13th or April, 1892, the defendant was the owner of a tract containing about 45 acres, which comprised both tenements, situate in Madison, Morris county, N. J., and on that day entered into a written contract with the complainant, by which the defendant, in consideration of $13,000, agreed to sell and convey to complainant, and complainant agreed to purchase and pay that price for, the tract in question, consisting of 45 acres and 23-100ths of an acre, excepting there out a house and barn and lot whereon they stood, containing one acre, the deed of conveyance to he delivered, and the purchase money paid, on the 13th of May, at 11 o'clock a. m., at a specified place in New York city. At the date of the contract there were upon the whole tract two dwellings, two barns, and a green or hot house, a spring of water, and two hydraulic rams driven by its waters, with a pipe leading from each,—one to the greenhouse and one to one of the barns. One dwelling and one barn and the greenhouse were on the part contracted to be conveyed; the other dwelling and barn, the spring and rams, were on the lot of one acre reserved. Included in the sale were a lot of hothouse plants in the hothouse. At and before the date of the contract the water was flowing continuously at both the barn and greenhouse, in the latter of which were the hothouse plants. The water was discharged at the barn into an open trough, from which the cattle and horses drank, and at the greenhouse into a tank, from which it was used in watering the plants. This flow was observed by the complainant, and he knew it was due to the action of a ram (he supposed there was but one) on the lot reserved, and such flow formed, in complainant's mind, a feature of value in the premises. The pipes and flow of water to the barn had existed for several years, but that to the greenhouse had been in use for less than two years. The ram which supplied it had been in place and use for many years, and carried the water in a pipe along the road in front of the premises in question to a property adjoining it on the other side, which property was sold by the defendant in 1890 to another party, and the flow of water to it was cut off, and the pipe turned from the road up to this greenhouse, and was in use there from that time on. The corporate authorities of Madison have recently erected waterworks for the use of the town and its inhabitants, but no main has as yet been laid in the street in front of these premises.

The negotiations for the purchase and sale were carried on between the complainant in person and an agent of the defendant, and nothing was said by either in their course about the flow of water. Such flow continued up to the date of the delivery of the deed. Before 10 o'clock on the morning of that day defendant directed his employe in charge of the premises to stop the operation of the rams, and then proceeded by train to New York to deliver the deed, which was done about 11 o'clock. The man in charge stopped the ram supplying the barn at once, but left the one supplying the greenhouse running until 3 o'clock p. m. So that in point of fact the water was probably not running to the barn at the moment the deed was delivered, but was running to the greenhouse. No notice was given to the complainant at the delivery of the deed that the flow of the water had been stopped, nor was any mention made of it by either party. The deed contained the usual verbiage as to appurtenances, including "ways, waters, privileges," etc. The springs driving the rams are about 15 feet lower than the barn and greenhouse, so that the water would not run naturally to either. The difference in height between the spring and the rams does not appear. The parties agreed that the court should act upon its personal knowledge of the peculiarities of hydraulic rams, which, so far as necessary for present purposes, are as follows: By the use of this machine the power due to the full from a given height of a given quantity of water is utilized to lift a comparatively small fraction thereof to a height greater than the source or head. The effect of the machine is precisely the same as would be that of a water wheel driving an ordinary pump. The ad vantage of the use of the ram is its extreme simplicity and durability. It works automatically, and in theory should run without stopping or touch by the hand of man until its parts were actually worn out. It is however, liable to stop, and requires the hand of man to start it again. This liability is due to several causes, none of which are of any importance, and all can be guarded against by proper care in setting it, and in preventing substances other than water from passing through it, except one, viz., a necessary part of the machine is a chamber of confined air which acts as a cushion. This air comes in contact with, and is liable to be absorbed by, the water, and exhausted, and when the air chamber becomes filled with water the ram works defectively and is liable to stop. The tendency of the air to be exhausted varies with the character of the water and the height or head to which it is lifted. If the water is lifted to a great height, there is a corresponding pressure of the water upon the air, and the absorption of the air by the water is increased thereby; but with a small height to lift against, like 15, 20, or 30 feet, rams may run for weeks and months without stopping. The process of recharging the air chamber with air is very simple, and may be done by any person in a few minutes. An hydraulic ram, properly set, may run for one or more years without any repair, and the operation of repair or renewal is very simple.

John C. Bessod and Mr. Aub, for complainant.

George G. Frelingbuysen, for defendant.

PITNEY, V. C. (alter stating the facts.)

The complainant rests his right to the continued flow of the water upon the fact that such flow was apparent and continuous at the time of the purchase, and constituted a valuable adjunct to the premises, rendering their use more beneficial and valuable. Against the case thus made defendant makes three points: First, that 'the use of the water in the way described was not necessary to the enjoyment of the premises; second, that it was not in actual use at the moment when the title passed; third, that it was not in its nature continuous, since the water did not run by gravity, but by machinery, which required the intervention of the hand of man, upon the land of the grantor, the defendant.

1. As to the element of necessity. I think some inaccuracy of thought and expression has arisen in the discussion by bench and bar of this doctrine of the creation of an easement by implication upon the severance of a tenement, as to the importance of the element of necessity, by failing to distinguish between that class of cases where it has been held or claimed that an easement is reserved by implication in favor of that portion of the tenement which is retained by the grantor in and upon that portion conveyed, and that other class of cases where it has been held that an easement was granted in favor of the part conveyed in and upon the part reserved. In the former class of cases the grantor is usually claiming an easement in direct derogation of his own grant, while in the latter it is well held to be in accordance with, and to flow naturally by implication from, his grant. In fact, it has been suggested that the grant in such cases is not by implication, but that the quasi easement passes with the quasi dominant tenement as, in substance, a part of the thing conveyed, and without any regard to the element of necessity. On the other hand, in the case of a reservation, it has been held that there can be no implied reservation of an easement in the land granted when the grantor has conveyed, as he generally does, all his right, title, and interest therein, except such an easement as is absolutely necessary to any enjoyment of it whatever, as in the case of a way of necessity. Gale & W. Easem. 72; Godd. Easem. (Amer. Ed.) 266, 267; Nichols v. Luce, 24 Pick. 105; Oliver v. Pitman, 98 Mass. 50; Washb. Easem. 163,164, and cases. To permit the grantor to claim such reservation is to permit him to derogate from his own grant. So rigid was this rule held that in the older cases the reservation of a right of way to and from the close retained by the grantor out of the conveyance of the land surrounding it was put on the ground of the interest that the public had that the close so surrounded should not be unused and unproductive. The conveyances in common use in this country contain an express conveyance of all the right, title, and interest of the grantor in and to the premises conveyed, and it is difficult to perceive on what ground short of absolute necessity any easement could be reserved. This distinction between a grant and a reservation by implication seems to be founded in logic, and, as will appear further on, is now thoroughly established in the English tribunals, and it seems to me to furnish the true test as to the value and importance of the element of necessity in the establishment of...