Wells v. Garbutt

• Decision Date: 26 April 1892
• Citation: 132 N.Y. 430,30 N.E. 978
• Parties: WELLS v. GARBUTT.
• Court: New York Court of Appeals Court of Appeals

132 N.Y. 430

30 N.E. 978

WELLS

v.GARBUTT.

Court of Appeals of New York,

Second Division.

April 26, 1892.

Appeal from supreme court, general term, fifth department.

Action by Seth Wells against John W. Garbutt to restrain the defendant from obstructing the waters of a creek so as to overflow plaintiff's land. Plaintiff obtained an injunction, which was affirmed by the general term. Defendant appeals. Affirmed.

HAIGHT, PARKER. and LANDON, JJ., dissenting. 9 N. Y. Supp. 953, affirmed.

John J. Snell, for appellant.

Porter M. French, for respondent.

The other facts fully appear in the following statement by VANN, J.:

This action was brought to restrain the defendant from so obstructing the waters of Allen's creek, in the town of Wheatland, county of Monroe, as to cause them to set back upon the lands of the plaintiff. The trial court found that Allen's creek is a natural stream of water, flowing in an easterly direction across lot 37 to lot 38, and thence across lot 43, in said town. The defendant is the owner of a flour and plaster mill on lot 43, the machinery of which is propelled by the water of said stream, impounded by a dam on said lot, which, until the year 1887, set back the water across lot 38 onto lands now belonging to the plaintiff, in lot 37. For more than 50 years prior to 1887 there was a dam, rebuilt at intervals on substantially the same site, creating a water power used to run mills owned by the defendant and his grantors continuously since 1828. Prior to July 1, 1856, Phillip Garbutt, father of the defendant, owned lots 37 and 43, with the mill and dam on the latter, and had acquired the right from the owner of lot 38 to cause the water to flow back over it. On the day last named said Phillip Garbutt gave a mortgage upon 41 acres of lot 37 to one Fairchild, to secure the payment of the sum of $1,600, without reserving the right to flow any part of the lands thus mortgaged, which lay on both sides of the stream. At the date of said mortgage the mills were in operation, and the dam, maintained by Phillip Garbutt on lot 43, when it was filled, set back the water across and beyond the mortgaged premises. In 1858, Phillip Garbutt conveyed lot 37 to the defendant, subject to said mortgage, and at the same time he also conveyed to him the mill property on lot 43. June 27, 1888, pursuant to a judgment of foreclosure based upon said mortgage, the premises therein described were sold and conveyed to the plaintiff, who has ever since owned the same in fee, and has been in possession thereof. Neither in said judgment nor in the referee's deed was there reserved to the defendant any right to cause the water of Allen's creek to flow back onto any part of the premises so conveyed to the plaintiff. While the defendant owned lots 37 and 43, and until within a short time before the foreclosure sale, he maintained said dam at its accustomed height, the same as it had existed continuously since 1828. In 1887 a portion of the dam was carried away by high water, and, when this action was commenced, the defendant had partly rebuilt it, and intended to carry it up to its former height, the effect of which would be ‘to set back the waters to some extent upon that part of lot 37 owned by the plaintiff, and to interfere with and obstruct the natural flow of waters of Allen's creek thereon.’ After finding the foregoing facts, in substance, the trial court found, as conclusions of law, that there was ‘no implied reservation to the defendant of the right to set back the waters of Allen's creek upon the lands of the plaintiff, which he bought at the foreclosure of said mortgage,’ that the defendant had no right to so set back said waters as to flood any part of plaintiff's premises, ‘or to render any portion thereof wet, spongy, or unfit for agricultural purposes.’ A permanent injunction was awarded accordingly. As no part of the evidence appears in the appeal book, the questions involved are raised by exceptions to the conclusions of law.

VANN, J., ( after stating the facts.)

Both parties unite in the position that the plaintiff acquired, through the sale in foreclosure, the entire estate of both mortgagor and mortgagee, as of the date of the mortgage. Rector v. Mack, 93 N. Y. 488; Pardee v. Steward, 37 Hun, 259, 262; 2 Rev. St. p. 192, § 158; Code Civil Proc. § 1632. The question presented for decision, therefore, is whether a riparian owner, who has imposed a burden on one part of his land for the benefit of another part, upon conveying the former without express reservation, should be held, under the circumstances of this case, to have impliedly reserved the right to continue the burden. As a grantor cannot derogate from his own grant, while a grantee may take the language of the deed most strongly in his favor, the law will imply an easement in favor of a grantee more readily than it will in favor of a grantor, and this distinction explains many of the apparent inconsistencies in the reported cases. Some learned judges, in considering what may be termed an implied grant, as distinguished from an implied reservation, without, however, mentioning the distinction, have used language apparently applicable to all easements existing by implication, when it was in fact intended to be limited to those existing in favor of a grantee. Others, in deciding that an easement was impliedly created by a grant and conveyed to the grantee, have gone further in their discussions than the point involved required, and have broadly declared the rule to be reciprocal and applicable alike to benefits conferred and burdens imposed, provided the marks of either were open and visible. Such was the case in Lampman v. Milks, 21 N. Y. 506, where the discussion outran the decision; for while it was decided that, on the facts then appearing, an easement should be implied in favor of the grantee against the grantor and his remaining lands, it was asserted that, under like circumstances, an easement would be implied in favor of the grantor against the grantee and his lands. The latter proposition was involved neither in the case decided nor in any of those relied upon to support it, except such as have since been overruled, either expressly or impliedly. So much has been written upon the general subject of implied reservation that a review of the authorities is no longer practicable in an opinion of reasonable length, and we shall content ourselves by announcing the rule applicable to the facts of this case, and citing a few out of the many authorities upon which it is based.

Where the owner of two parcels of land conveys one by an absolute and unqualified deed, we think that an easement will be implied in favor of the land retained by the grantor, and against the land conveyed to his grantee, only in case the burdenis apparent, continuous, and strictly necessary for the enjoyment of the former. Outerbridge v. Phelps, 13 Abb. N. C. 117;Shoemaker v. Shoemaker, 11 Abb. N. C. 80; Scrymser v. Phelps, 33 Hun, 474; Dales v. Ceas, 5 Wkly. Dig. 400; Burr v. Mills, 21 Wend. 290, 292;Sloat v. McDougal, (City Ct. Brook.) 9 N. Y. Supp. 631;Butterworth v. Crawford, 46 N. Y. 349;Longendyke v. Anderson, 101 N. Y. 625, 630, 4...