Van Sandt v. Royster

• Decision Date: 05 November 1938
• Docket Number: 33908.
• Parties: VAN SANDT v. ROYSTER et al.
• Court: Kansas Supreme Court

83 P.2d 698

148 Kan. 495

VAN SANDT v. ROYSTER et al.

No. 33908.

Supreme Court of Kansas

November 5, 1938

Syllabus by the Court.

An "easement" is an interest which a person has in land in possession of another, and therefore an owner cannot have an easement in his own land.

Where an owner uses one part of his land for benefit of another part, condition created is spoken of as a "quasi easement," the land benefited being referred to as the "quasi dominant tenement" and part utilized for benefit of benefited land being referred to as the "quasi servient tenement."

Where grantor of three lots had run a sewer pipe from her home on lot farthest from street through other lots to connect with public sewer in street, and had thereafter conveyed corner lot to a person who erected house thereon connected with sewer pipe, which was entirely underground and of which plaintiff, who subsequently obtained title to corner lot, had no notice except through existence of plumbing in house there was an implied reservation of an easement, which was an "apparent easement," over lot of plaintiff.

A grantor owned three lots, lying east of Highland Avenue and south of Tenth street, numbered respectively 19, 20 and 4. From her home on lot 4 on the east, she ran a sewer pipe through lots 20 and 19 and connected it with a public sewer in Highland Avenue on the west of lot 19. About the same time or shortly thereafter the grantor conveyed lot 19 (the corner lot) to a person who erected a house thereon and connected with the sewer pipe. By mesne conveyances the title to lot 19 passed to the plaintiff. The sewer pipe was entirely underground, and the plaintiff had no knowledge or notice of the sewer pipe except the plumbing in the house. Held, there was an implied reservation of an easement over the lot of the plaintiff.

Appeal from District Court, Neosho County; J. T. Cooper, Judge.

Action by James W. Van Sandt against Louise H. Royster and others to enjoin the defendants from using and maintaining an underground lateral sewer drain across plaintiff's land. Judgment for defendants, and plaintiff appeals.

Judgment affirmed.

Guy Lamer and DeWitt M. Stiles, both of Iola, for appellant.

T. R Evans, B. M. Dunham, and James A. Allen, all of Chanute, for appellees.

ALLEN Justice.

The action was brought to enjoin defendants from using and maintaining an underground lateral sewer drain through and across plaintiff's land. The case was tried by the court judgment was rendered in favor of defendants, and plaintiff appeals.

In the city of Chanute, Highland avenue running north and south intersects Tenth street running east and west. In the early part of 1904 Laura A. J. Bailey was the owner of a plot of ground lying east of Highland avenue and south of Tenth street. Running east from Highland avenue and facing north on Tenth street the lots are numbered, respectively, 19, 20 and 4. In 1904 the residence of Mrs. Bailey was on lot 4 on the east part of her land.

In the latter part of 1903, or the early part of 1904, the city of Chanute constructed a public sewer in Highland avenue, west of lot 19. About the same time a private lateral drain was constructed from the Bailey residence on lot 4 running in a westerly direction through and across lots 20 and 19 to the public sewer.

On January 15, 1904, Laura A. J. Bailey conveyed lot 19 to John J. Jones, by general warranty deed with usual covenants against encumbrances, and containing no exceptions or reservations. Jones erected a dwelling on the north part of the lot. In 1920 Jones conveyed the north 156 feet of lot 19 to Carl D. Reynolds; in 1924 Reynolds conveyed to the plaintiff, who has owned and occupied the premises since that time.

In 1904 Laura A. J. Bailey conveyed lot 20 to one Murphy, who built a house thereon and by mesne conveyances the title passed to the defendant Louise Royster. The deed to Murphy was a general warranty deed without exceptions or reservations. The defendant Gray has succeeded to the title to lot 4 upon which the old Bailey home stood at the time Laura A. J. Bailey sold lots 19 and 20.

In March, 1936, plaintiff discovered his basement flooded with sewage and filth to a depth of six or eight inches, and upon investigation he found for the first time that there existed on and across his property a sewer drain extending in an easterly direction across the property of Royster to the property of Gray. The refusal of defendants to cease draining and discharging their sewage across plaintiff's land resulted in this lawsuit.

The trial court returned findings of fact, from which we quote:

"The plaintiff and the defendants Louise Royster and Lael Bailey Gray are the present owners, respectively, of properties adjoining one another in Bailey's Addition to the City of Chanute, Kansas, on each of which properties there is a residence, the plaintiff being the owner of Lot 19, the defendant Louise Royster being the owner of part of Lot 20, and the defendant Lael Bailey Gray being the owner of Lot 4, part of original Lot 9 in Block 3, in said Addition. All of said properties front to the north on Tenth Street. Plaintiff's property is farthest west. Immediately adjoining it on the east is the Royster property and immediately adjoining the Royster property on the east is the Gray property. Immediately adjoining plaintiff's property on the west is Highland Avenue, a public street.

"2. Laura A. J. Bailey was originally the owner of all the above described properties and other land adjacent thereto and prior to the summer of 1904 the only residence or dwelling house on any of said properties was the house on the property fartherest east, namely Lot 4, being the property now owned by Gray.

"3. On January 15, 1904, Laura A. J. Bailey sold to John J. Jones said Lot 19 (and other land) and conveyed same to him by general warranty deed, and with usual covenants against encumbrances, and containing no exceptions or reservations whatsoever. The deed was duly recorded. John Jones erected a dwelling house on the north 156 feet of Lot 19. On January 12, 1920, John Jones conveyed the north 156 feet of Lot 19 to Carl D. Reynolds by general warranty deed containing usual covenants against encumbrances, and containing no exceptions or reservations whatsoever, but also included the 'appurtenances thereunto belonging,' etc. This deed was duly recorded. On November 7, 1934, Carl D. Reynolds conveyed said last described property to plaintiff by general warranty deed with usual covenants against encumbrances excepting only a mortgage thereon, but also including the 'appurtenances thereunto belonging,' etc. Plaintiff has owned and occupied said property ever since.

"4. On April 14, 1904, Laura A. J. Bailey conveyed part of Lot 20 to W. P. Murphy who erected a dwelling house on the lot and later sold that property to W. E. Royster, conveying the same by general warranty deed without reservation but including the 'appurtenances thereunto belonging,' etc., and from said W. E. Royster the property passed to the defendant Louise Royster.

"5. The defendant Lael Bailey Gray has succeeded to the title to Lot 4 upon which the old Bailey house stood at the time Laura Bailey sold the other lots.

"6. In the latter part of the year 1903 or the early part of 1904 the City of Chanute extended its public sewer system and constructed a public sewer running north and south in Highland Avenue immediately west of Lot 19 above mentioned. When this public sewer was constructed a private sewer was laid from the old Bailey house on Lot 4 in a general westerly direction across Lots 20 and 19 to the public sewer in Highland Avenue and the old Bailey house was connected through this private sewer to the public sewer. When the houses were erected on Lot 19 and Lot 20 respectively, these houses were connected with this private sewer, and the same has been in continuous use for all of said properties ever since.

"7. At the time Laura A. J. Bailey sold Lot 19 to Jones she owned Lot 18 which lies south of Lots 19 and 20, extends in an east and west direction from the west boundary of Lot 4 (or original Lot 9) near the southwest corner thereof to Highland Avenue. The east boundary of Lot 18 is contiguous with the west boundary of original Lot 9 for a distance of at least 20 feet north from the southwest corner of said Lot 9. Lot 18 was not sold by Mrs. Bailey until November, 1905.

"8. There is not now and was not at the time plaintiff purchased his property anything on record in the office of the Register of Deeds of the county pertaining to the private sewer above referred to.

"9. At the time plaintiff purchased his property he and his wife made a careful and thorough inspection of the same, knew that the house they were buying was equipped with modern plumbing and knew that the plumbing had to drain into a sewer, but otherwise had no further knowledge of the existence of said lateral sewer.

"10. That the lateral sewer in controversy was installed prior to the sale of the property by Mrs. Laura A. J. Bailey to John J. Jones on January 15, 1904; but if not, the said lateral sewer certainly was installed shortly after the sale to John J. Jones and with the knowledge and acquiescence of said John J. Jones, and that the said John J. Jones paid the said Mrs. Laura A. J. Bailey one-third of the cost of the installation of the said sewer.

"11. That all of the original owners of the three properties in controversy, to-wit, Laura A. J. Bailey, John J. Jones and W P. Murphy, had notice and knowledge of the existence of the lateral sewer in controversy, and all acquiesced in the use of the sewer by all parties, and the use of the sewer by the said parties and their successors in interest has been continuous from the...