Watson v. French

• Decision Date: 23 November 1914
• Citation: 92 A. 290,112 Me. 371
• Parties: WATSON v. FRENCH.
• Court: Maine Supreme Court

92 A. 290

112 Me. 371

WATSON

v. FRENCH.

Supreme Judicial Court of Maine.

Nov. 23, 1914.

Report from Supreme Judicial Court, Aroostook County, in Equity.

Bill by John Watson against Walter J. French. On report. Decree for complainant.

Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, HANSON, and PHILBROOK, JJ.

Madigan & Pierce, of Houlton, for complainant.

Hersey & Barnes, of Houlton, for respondent.

CORNISH, J. The rights of the parties in this case are to be determined by the construction of a certain deed given by Albion P. Heywood to the plaintiff on June 13, 1893. Prior to that time the premises of both the plaintiff and defendant belonged to Heywood, the common grantor, who on that date conveyed the rear portion, with a stable thereon, to the plaintiff, and retained the front portion, with the opera house thereon, adjoining Court street. The plaintiff was also granted the right, in common with Heywood and others, "to use said passageway along the north side of said George Cary's lot, and also the right to use a passage between the premises herein conveyed and the opera house, some 12 or 15 feet wide."

The following diagram will explain the situation:

When the Houlton Water Company installed its system in 1887, Heywood made connection on June 6th of that year with the Court street main, by means of a two-inch pipe which enters the opera house cellar under the front wall, and rises up and runs across the cellar on top of the concrete floorto a point near the rear wall, and there is connected with a three-fourths inch pipe that drops down under the cellar, the rear wall, and the passageway, and comes up into the stable. The larger pipe supplied the opera house, and the smaller the stable. This was the situation when the plaintiff occupied the stable as a tenant of Heywood for several years prior to his purchase in 1893. It was the situation when he purchased, and it remained unchanged after his purchase during the lifetime of said Heywood, and after his decease, until July, 1912, when the defendant, as purchaser from the heir at law of Heywood, shut off the supply to the plaintiff's stable.

This bill in equity was brought, asking that the defendant be enjoined "from interfering with or preventing the repairing and restitution by said plaintiff of the said water connection wherever necessary, and from interfering with the entry of the plaintiff on the premises of the defendant for that purpose, and from interfering, injuring, or damaging in any way, either personally or by his agents, servants, or employes, the said connection or the flow of water from the main of the Houlton Water Company through the premises of the defendant to the stable of the plaintiff."

The precise question involved is whether, under the facts of this case and under the circumstances and conditions existing when the deed was executed, the plaintiff had an implied grant of the right to have the water pipes remain as at the time of conveyance, or at least in some other situation equally adapted to conveying water to the plaintiff's premises; in other words, whether the plaintiff has an easement by necessity.

The vital question is: Did the parties intend that the right now claimed by the plaintiff should be granted? In our opinion they did.

The basis of the plaintiff's claim is the presumption of a grant arising from all the circumstances of the case. This is but the application of the general principle that the grant of a thing is presumed to include and carry with it as an incident of the grant whatever right the grantor had in connection with it and could convey by apt words, without which the thing granted would prove practically useless to the grantee. One of these circumstances, and oftentimes the controlling one, is the necessity; and, however lenient other courts may be in defining the degree of necessity which must exist in order to raise the implication that the easement or quasi easement passes, as in New Jersey (Toothe v. Bryce, 50 N.J.Eq. 589, 25 Atl. 182) and in New York (Spencer v. Kilmer, 151 N. Y. 390, 45 N. E. 865), the rule has been firmly established in this state, and has been reiterated in many cases, from Warren v. Blake, 54 Me. 276, 89 Am. Dec. 748, to Doten v. Bartlett, 107 Me. 351, 78 Atl. 456, 32 L. R. A. (N. S.) 1075, that there can be neither implied grant nor implied reservation unless the easement be one of strict necessity. Mere convenience, however great, is not sufficient.

This rule has been applied in cases of right of way of necessity, as in Whitehouse v. Cummings, 83 Me. 91, 21 Atl. 739, 23 Am. St. Rep. 756; Kingsley v. Land Co., 86 Me. 279, 29 Atl. 1074, 25 L. R. A. 502; Hildreth v. Googins, 91 Me. 227, 39 Atl. 550; in case of stairway, Stillwell v. Foster, 80 Me. 333, 14 Atl. 731; and of drainage, Dolliff v. B. & M. R. R. 68 Me. 173. And the test of necessity is whether the party claiming the right can, at reasonable cost, on his own estate, and without trespassing on his neighbors, create a substitute. See cases supra, and in case of a chimney, Buss v. Dyer, 125 Mass. 287; a drain, Randall v. McLaughlin, 10 Allen (Mass.) 366, and Thayer v. Payne, 2 Cush. (Mass.) 327.

Applying this test in the case at bar, necessity in its strictest sense is seen to exist. It could not be seriously contended that a water supply to a stable from some source is not an absolute necessity, and the evidence here is uncontradicted that the only available source is by means of the pipe passing through the opera house cellar and connecting the pipe extending to the stable with the main. If the plaintiff's land extended to the street, it might with reason be said that he should secure his supply direct from the street main. But his land is situated about 125 feet back from the street, and his only means of ingress and egress is over a private way, in which he has only a right of passage in common with others. Such a right of passage constitutes a limited easement, and gives him no right in the soil, so that he could lay pipes in it to connect with the street main. He would be a trespasser, should he attempt it On all other sides his lot is bounded by land of other parties over which he has no rights.

The defendant suggests that, if the plaintiff should apply to the Water Company for service, that company would take the necessary intervening land by right of eminent domain, and render the service desired. We do not think this argument removes the necessity, and for several reasons.

In the first place, it is doubtful whether the Houlton Water Company under its charter (Priv. & Sp. L. 1878-80, c. 227) has the legal right to condemn land of a private individual in order to construct a service pipe to one taker. In the second place, there is no evidence that the company would attempt to do this, even if it has the legal right to do so. The suggestion of defendant is a mere assumption. There is no evidence of the fact. And in the third place, while a water company is obliged...