text:
    Peder Larsen v. John Peterson.
    1. A water-pipe leading from a driven well in a yard, to a sink in the kitchen of a dwelling, there ending in a pump, by which water can be, and is, habitually drawn from the rvell to the kitchen for domestic purposes — the well and water-pipe being completely hidden from view — form an apparent and continuous easement, which will pass with a conveyance of the dwelling alone by the owner of both yard and house, the owner retaining the yard.
    2. The same result will follow a simultaneous conveyance by the owner of both tenements, of the house to one person and of the yard and well to another, provided the grantee of the yard and well has notice of the existence of the connection between the well and the pump and of the other conveyance, and such conveyance is made by his consent.

      Heard on pleadings and proofs.

      .Mr. Edwin B. Goodall, for the complainant.

      .Mr. Soott German, for the defendant.
   Pitney, V. C.

The object of this bill is to establish and protect complainant’s right in, and enjoyment of, an easement.

The circumstances, which are not open to serious dispute, are peculiar. For some years prior to and on the 1st day of June, 1893, Mrs. Elizabeth Mabey, of Montclair, Essex county, was the owner of a lot of land fronting on Elmwood avenue, in that ■city, upon which was a double frame dwelling, comprising, under -one roof, two complete dwellings, separated only by an ordinary lath and plaster partition, without any openings. Some years before that date she had procured a well to be drilled in the ■earth and underlying water-bearing rock in the rear of this building, and had laid therefrom two independent water-pipes placed in the earth, leading to the dwelling, one into the sink of each kitchen. Each dwelling was supplied with an ordinary hand-pump, and in this manner, and in no other way, each of the separate dwellings was supplied with water. There was ■nothing visible on the ground in the rear of the house to indicate the existence of a well or its connection with the dwelling, and there was no water-main in the street.

This being the situation, Mrs. Mabey, in the spring of 1893, was minded to sell this property, but was unwilling to sell a part without the whole. At the same time, both complainant and defendant were desirous of purchasing houses for their individual use, and, hearing of this property, called together on Mrs. Mabey — that is, complainant and John Peterson, acting as agent for his wife — and looked at the property. They looked at only one of the dwellings — that in. the actual occupation of Mrs. Mabey, the other being in the occupation of a tenant — and were informed, and truly, by Mrs. Mabey, that the two dwellings were precisely alike in all respects, and, indeed, this was plainly indicated by their exterior appearance. In the kitchen of the part occupied by Mrs. Mabey, both complainant and Peterson saw and particularly noticed the pump in the sink and tasted the water from it, and were informed that it came from a drilled well in the back yard, and that both dwellings were supplied in the same way and from the one well. The precise location of the well was not pointed out, and was not known either to Mrs. Mabey or to either of the parties until after the conveyances presently to be mentioned. Both complainant and defendant knew that there was no water-main in the street. On that occasion complainant and John Peterson agreed together, and with Mrs. Mabey, to purchase the property at a price named, and agreed that it should be equally divided between them, and that the title should be made to each in severalty according to a dividing line to be agreed upon between them and actually run on the ground by a surveyor in such a manner that it should run through the partition separating the two dwellings, and then divide the land as nearly equally as practicable. Peterson at the same time gave $10 for the choice of the houses, and then and there chose the house in which Mrs. Mabey was living; but such choice had no reference to the location or control of the well, and was influenced entirely by the-circumstance that the house so chosen had, owing to the shape of the lot, more light and air in its front and side than the other. The survey was had accordingly, and a description of the dividing line given, and deeds of conveyance in accordance with it, dated June 1st, 1893, were executed by Mrs. Mabey on June 5th, and duly delivered at the same moment, one to complainant and the other to Mrs. Peterson, the wife of John. Both parties took possession. Subsequently Peterson discovered that the well was on his land, and then cut-off' the pipe leading to complainant’s kitchen, who thereupon attempted to repair it and was prevented by the defendant; whereupon he filed this bill asking that his rights in the premises may be established, and the defendant enjoined from preventing him from renewing the-water-pipe connection with the well. Upon the filing of the-bill an injunction was granted accordingly, and the complainant took advantage of it to restore the connection between his pump and the well to its former condition.

At the hearing thdre was no contention that the well did not supply water enough for both families, or that complainant had made an unreasonable use of it.

The above are the facts as I have found them. Peterson does, indeed, deny that he was told on the occasion in question that-the other dwelling had a pump like the one they inspected, or-that there was but one well for both houses. But the contrary is supported not only by the evidence of complainant, but also, by that of Mrs. Mabey and her daughter, both disinterested witnesses — or rather, if they have any interest, it is against complainant, since Mrs. Mabey gave Mr. Peterson a warranty deed —who gave their evidence in a way to command the belief of the court. Besides, Peterson does not deny that he saw the pump and heard that it was supplied with water from a well, but does deny that he was told that the other dwelling was similarly supplied. But he knew that both dwellings were a. part of one building, and that in external appearance they were-precisely alike; that the other dwelling was occupied; he fixed the value of the choice between the two houses at only $10, which was due, as he admits, to a difference in the size of the front yard, which would necessarily result, as shown by the plot, from a division of it in the way proposed and agreed upon. He does not contend that his choice was due to any supposed difference in the interior of the houses, or to the presenc’e of water in one and its absence in the other, or that he supposed that each house had an independent supply of water. These circumstances render it highly improbable that he did not, in some way, learn that both dwellings were supplied with water in the same way and from the same source. It was, to say the least, not probable that the proprietor of such a lot and building would incur the expense of an independent water-supply to each dwelling.

Upon this case, the complainant, in his able brief, makes two points which support each other, and either of which, standing' alone, he contends, entitles him to relief. First. That the well and aqueduct running therefrom to complainant’s house constitute a change of a permanent nature in the structure of defendant’s tenement, made for the benefit of complainant’s tenement by the •owner of both, of which defendant had actual notice through her agent before she purchased, and which was of such a nature as to be discovered on an examination, and hence became an apparent and continuous easement in favor of complainant’s tenement •upon the defendant’s tenement. Second. That the effect of the transaction between complainant, defendant and Mrs. Mabey, was a purchase by the two jointly from Mrs. Mabey, with an agreement between the two that the property should be divided in .the manner stated, and that the arrangement for the supply •of water for each house should remain as it was.

It seems to me that the controlling question is, whether the arrangement for the supply of water to complainant’s house constituted what is known to jurists as a “continuous and apparent” easement, which was “necessary” in the sense in which that word is used in that connection, for the comfortable use and •occupation of the complainant’s premises.

As to the quality of its being “apparent,” the fact that it was, in part, hidden in the earth, and so not physically apparent to the eye, is not conclusive. The part on complainant’s land — the pump — was visible, and the water must have come either from the land actually conveyed to him or from that conveyed to Peterson. Independent of the actual notice, I am of opinion •that Mrs. Peterson, under the peculiar circumstances of this case, is chargeable with notice that there was such a pump on the complainant’s tenement, and that it might connect with the well •or cistern on the part that was conveyed to her.

It seems to be well settled that the mere fact that a drain or aqueduct, as the case may be, is concealed from casual vision, does not prevent it from being “ apparent ” in the sense in which that word is used in that connection. The aqueduct, in Nicholas v. Chamberlain, 2 Cro. 121; the drain, in Pyer v. Carter, 1 Hurlst. & N. 916; the aqueduct, in Watts v. Kelson, L. R. 6 Ch. 166; in Brakeley v. Sharp, 1 Stock. 9 and 2 Stock. 207; in Seymour v. Lewis, 2 Beas. 439, and in Toothe v. Bryce, 5 Dick. Ch. Rep. 589, were all buried beneath the surface and not visible to the casual observer, and yet the easement in each case was. upheld. The point of actual appearance to the eye was distinctly raised in Pyer v. Carter, and overruled. There, as here,, the two dwellings were under one roof, and once had a common owner, and had a drain in common for the use of both, which was not visible. Baron Watson, in his considered judgment,, used this language: “We think it was the defendant’s own fault that he did not ascertain what easements [the drain] the owner of the adjoining house exercised at the time of the purchase.”' Although this case has been severely criticised as to the main-ground upon which it was decided, the part of it just quoted has not been questioned, and the general result was undoubtedly right. See Toothe v. Bryce, 5 Dick. Ch. Rep. 599.

It is true that, in each of the cases of aqueducts above cited, both ends of the pipe — as well that from which the flow of water’ came as that to which it was carried — were probably visible, while here only that end was visible which was on the dominant tenement; but I am of the opinion that where, as here, and in Toothe v. Bryce, the dominant tenement is conveyed and theservient tenement is reserved, the controlling fact is that the-existence of the quasi-easement is shown by something in sight upon the dominant tenement. That is the point to which the-attention of the purchaser is naturally directed ; and the principle upon which the cases go is that he is entitled to the tenement he buys in its then present condition, and the use of all such-easements as are apparent and continuous. Now, the easement which he sees on the tenement which he buys must be held to-be apparent.

It seems to me that, in Toothe v. Bryce, the result must have been the same if the ram which drove up the water to the tenement conveyed to the complainant, had been entirely invisible.

In the case in hand the controlling fact is that the pump was there visible and in use, and by its connection with the invisible-pipe leading to some fountain the house conveyed to complainant was supplied with water.

This view must hold if the defendant’s tenement had been, retained by Mrs. Mabey and the action were against her instead of Mrs. Peterson and, according to the well-settled rule in this court, the result would be the same if Mrs. Mabey had conveyed to Mrs. Peterson and retained the lot conveyed to complainant, provided Mrs. Peterson had notice of the actual fact that the pump on the lot retained was supplied by water from a well which might prove to be on the lot conveyed (see the cases on this point in Toothe v. Bryce); and provided, of course, the easement had the other elements requisite, viz., that of being continuous and necessary in the qualified sense in which that word is used in that connection. In short, in my opinion all that is meant by “apparent,” in that connection, is that the parties •should have either actual knowledge of the gwasi-easement or knowledge of such facts as to put them upon inquiry.

Next, as to the quality of being “ continuous.” Mr. Gale, in the later editions of his book — §§ 50, 52 (4-th Eng. ed., 1868, pp. 87, 89) — comes to the conclusion that the test of continuousness is that there should be an alteration in the quality — or “disposition” — of the tenement, which is intended to be, and is, in its nature, permanent, and gives the tenement peculiar qualities, and results in making one part dependent, in a measure, upon the other. It is not of the essence of this test, as applied to a watercourse, that the water should flow of itself continuously, but the test is that the artificial apparatus by which its flow is produced is of a permanent nature. It is with a view of bringing out this quality of permanence that the learned author contrasts this class of easements with a right of way, “ the enjoyment of which depends upon an actual interference of man at each time of enjoyment.” Now, what is meant by that sentence is that the burthen of the easement in the case of a right of way is not felt by the servient tenement except at the moment of each enjoyment of it. A permanent structure upon, or alteration of, the servient tenement is not a necessary element of such ■an easement. And by the expression “interference of man at each time of enjoyment” is meant no more than an interference with the servient tenement by an entry upon it, as illustrated not only by ordinary rights of way, but also by rights of way with a right to take something from the servient tenement, as in Polden v. Bastard, 4 Best & S. 257; L. R. 1 Q. B. 156.

I stop here to say that the distinction between a watercourse and a formed and metaled road constructed for permanent use is quite thin, and there have been expressions of judges in modem times intimating an inclination to Bold that where a dwelling or other such tenement is conveyed with an artificially-formed road leading to it over other lands of the grantor which are reserved, a right of way ought to be held to pass.

The true distinction between a continuous and a non-continuous easement is again illustrated by the case of the rain-water drain in Pyer v. Carter, through which the water actually ran only when it rained, and yet it was held continuous because it was permanent and constituted a permanent alteration in the structure of the tenement. Suppose that in that case it had been necessary for the plaintiff on each occasion of a rain to pump the rainwater from a pit in his cellar into the drain, would it have been, by reason of that arrangement, any the less continuous ? I think not. In short, I conclude that the word “continuous” in this connection means no more than this — that the structure which produces the change in the tenement shall be of a permanent character, and ready for use at the pleasure of the owner of the dominant tenement without making an entry on the servient tenement. In Seymour v. Lewis, supra, although the water did run by gravity, the head was so small that a sufficient supply could not be procured without the use of a pump, and a pump was in actual use and yet that did not destroy the continuous character of the easement.

For these reasons I conclude that the easement here in question is both apparent and continuous. That it was “ necessary ” in the -sense in which that word is used in this connection is undeniable.

In this case there is no room for the application of the distinction, even if that distinction were recognized by this court, between the reservation and the grant of an easement of this ■character upon the severance of the tenement. The conveyances from the original proprietor, which produced the severance, were simultaneous, and amounted, under the circumstances, to a voluntary partition between complainant and defendant. In-such a case, as shown by Chancellor Williamson, in Brakeley v. Sharp, 2 Stock. 207, the rule that a man cannot derogate from-his own grant does not apply.

I conclude that the complainant is entitled to the relief prayed-for, and will so advise.


source: Caselaw Access Project

author: Green, V. C.

license: Public Domain

text:
    In re Mary Ann Alexander, alleged to be a lunatic, et al.
    The act of March 27th, 1878 {Rev. Sup. p. %67), relative to inchoate dower,, does not apply to cases where the marriage from which the right to dowersprings was contracted, and the lands in which it is claimed vested in possession in the husband, before the x>assage of the act.
    On petition &c.

      Mr. Sherrerd Depue, for the guardian ad litem,.

      Mr. Samuel Howell Jones, for the petitioner.
   Green, V. C.

The petitioner’, Mary Alexander, claims to be the owner in fee-of a lot of land in Newark, subject to the inchoate right of dower in an undivided half thereof, of Mary Ann Alexander, wife of Sylvester Alexander. The said Mary Ann Alexander-being a lunatic, this petition is filed under the act of March 27th, 1878 (Rev. Sup. p. 2 £67) for a release of her inchoate right of dower in said land and for other purposes.

The petitioner claims title to the said lot from these circumstances : Her mother, a widow, died in Newark, August 28th, 1876, seized thereof, leaving her surviving her heirs-at-law, four-children, Sylvester, Wellington, Ann Eliza and the petitioner.

Another son, Horatio, when about nineteen years of age, in 1851, left home, and no word or trace of him had been received for over forty years, and he had been given up for dead for over thirty years.

Her brother Wellington, in 1875, when about thirty-one' years of age, also left his home, in Newark, and no word or trace of him had been received for over eighteen years, and ha had been given up for dead for over ten years.

Neither of her brothers was ever married.

Her sister, Ann Eliza, died intestate and unmarried, in 1884.

By the presumed death of her two brothers and the death of her sister, the title became vested in her brother and herself, in equal shares.

Sylvester was married to his wife, Mary Ann, in 1865.

The petitioner recovered a judgment October 13th, 1885, in the Essex county circuit court, against Sylvester, for $815.78, and his undivided half was sold by the sheriff to her, December 22d, 1885, for'$200, and afterwards conveyed to her.

The petition states that both Sylvester and Mary Ann are now, and have been for ten years, insane, and for seven years, patients in the Essex county lunatic asylum.

She has made a contract of sale of the lot for $650, which she says is a fair value. She seeks a decree for a release of the inchoate right of dower and of the rights of the two brothers. The only question now is as to the release of dower. A guardian ad litem having been appointed for the alleged lunatic, counsel for said guardian raises objection to the validity and applicability of the law invoked, to the case of the lunatic.

The power of the legislature as representing the sovereignty of the state to control the property of lunatics and idiots has always been exercised and is unquestionable. The legislature is in the place of the sovereign as parens patrice, and on it is cast not only the power, but the duty, to provide for the care of the persons and property of such unfortunates. The king was invested with this prerogative, but while, after office found, he had the right, seldom if ever exercised, to take the profits of the estate of an idiot after making ample provision for the support of the idiot and his family, his power over the estate of a lunatic was only for its preservation for the benefit of the lunatic or of the estate. No case can be found holding that the king had any power over the estate of a lunatic except for such purpose as a trustee for the lunatic or the estate; that he could dispose of it for the benefit of another was never heard of. 1 Coll. Lun. pt. 1 ch. I. p. *86; Shelf. Lun. & Idiots *9, 15; Stock. Non Comp. Ment. *79, 83; In re Farrell, 6 Dick. Ch. Rep. 353; In re Duvausney, 7 Dick. Ch. Rep. 502. The act of 1878 is unique in this regard, that whereas all other acts of this state which authorize the sale of the lands of persons non sui juris, base the jurisdiction of the court on the fact to be found that a sale will be for the benefit of the estate of such person. This provides that the chancellor is to be satisfied, not that the interests of the alleged lunatic, entitled to the inchoate right of dower, but “ that the interest of the owner of such lands ” require and will be promoted by a sale of the same. Such acts of this state as those for the sale of lands of infants and lunatics are for the protection of persons helpless in the eye of the law and for the relief of the public from the burden of their support so long as their estate may prove sufficient. It would be unjust that public taxes should be levied for the support of those who were possessed of ample means, or that such persons should be deprived of the means of realizing from their property sufficient for their maintenance and support. But the act in question seeks to accomplish no such purpose; it is for the benefit alone of the estate of another person that the power is sought to be conferred on the court, and proposes to force a lunatic wile to do in invitum and for the benefit of another what, if compos mentis, would be beyond the compulsive power of courts and legislature. By no other process known to the law can the inchoate right of dower be taken away, or for it substituted some other form of security.

It is objected that the act of 1878 does not apply to cases where the marriage from which the right to dower springs was contracted, and the lands in which it is claimed vested in possession in the husband before the passage of the act.

The question involved is the scope of legislative power over dower, inchoate at the time of enactment. A review of the numerous decisions bearing on the point, in the hope of extracting some recognized governing principle, would be a profitless task, as the cases developed an irreconcilable contrariety of opinion. Judges affirming the power of the legislature to modify, control and even abolish inchoate dower, argue that it is a mere possibility because it is a right which cannot vest before it becomes consummate by the death of the husband; that it is a mere incident to the marriage relation, established by law and not by contract, and therefore subject to legislative change or destruction. On the other hand, while recognizing that the consummation of dower is contingent on the death of the husband in the lifetime of the wife, other judges argue that inchoate dower is something more substantial than a mere possibility, viz., that it becomes, coincident with the seizin of the husband, an interest in such real estate. This is based on well-known incidents of the right. Dower was, indeed, proverbially the foster-child of the law, and so highly was it rated in the catalogue of social rights, as to be plated in the same scale of importance with liberty and life.” Park Dow. *2; Co. Litt. 124 b. When it had attached by the seizin of the husband, it could not be discharged by any act of his, although the owner of the fee, without the wife’s concurrence. Park Dow. 5. It is an encumbrance (Porter v. Noyes, 2 Greenl. 22; S. C., 11 Am. Dec. 30, note at 39), and, as such, defeats a contract to convey an unencumbered title (Ib.; Jones v. Gardner, 10 Johns. 266), and comes within a covenant against encumbrances. Shearer v. Ranger, 22 Pick. 447; Carter v. Denman, 3 Zab. 260. It is a valuable consideration for a conveyance to a wife (Bullard v. Briggs, 7 Pick. 533; Garlick v. Strong, 3 Paige 440), or for a promissory note to her. Sykes v. Chadwick, 18 Wall. 141. The wife may maintain an action for its protection (Petty v. Petty, 4 B. Mon. 215; S. C., 39 Am. Dec. 501; Thayer v. Thayer, 14 Vt. 107; S. C., 39 Am. Dec. 211, 218), or file a bill for the redemption of a mortgage covering it. Davis v. Wetherell, 13 Allen 60. She must be a party to any suit affecting it. Vreeland v. Jacobus, 4 C. E. Gr. 231. That it is an interest in the land from the time of the seizin of the husband, is the law in this state. Wheeler v. Kirtland, 12 C. E. Gr. 534.

In that case Catharine Kirtland was, and since 1836 had been, the wife of John Kirtland. On the 16th of December, 1869, her husband was the owner of about six acres of land in the county of Essex. On that day a judgment was entered up against Kirtland, the husband. On May 30th, 1870, the Essex public road board laid an avenue across the tract, taking two and eighteen-hundredths acres. Damages were awarded to Kirtland, the husband, by reason of the taking and condemning of the same, to the amount of $15,000. The judgment creditors served a notice on the road board warning them not to pay the award to Kirtland. Afterwards, by a sale under the judgment, one Whitney became the owner of the rights of Kirtland, the husband, in the premises, and entitled to the interest of the husband in the, amount awarded for the portion of the premises condemned. The wife, by her bill, claimed to have an interest in the award by reason of her inchoate dower in the land so condemned. The court of errors and appeals held that the inchoate dower of the wife was a valuable interest in the land condemned, the value of which passed into the award by the transmutation of the land into money, and that she was entitled to the amount decreed in her favor by the chancellor. Mr. Justice Reed, in giving the opinion of the court, refused to follow the cases of Gwynne v. Cincinnati, 3 Ohio 24, and Moore v. City of New York, 8 N. Y. 110, upon which many of the decisions will be found to be based. The case of Wheeler v. Kirtland expressly declares that inchoate dower is a valuable interest in land, and brings it within the protecting clause of the constitution which provides that private property shall not be taken for public use without just compensation. If this is so, on what principle can it be said that it is not also within the rule of legislative inhibition that private property shall not be taken for private use with or without compensation, a rule which, if not a corollary from the clause quoted, springs out of the first clause of the bill of rights of our constitution, which declares that the right of acquiring, possessing and protecting property is inalienable? Under that rule it is not'competent for the legislature, by enactment, to take the property of A and give it to B, nor, under the principle of Wheeler v. Kirtland, to take a valuable interest in land which A has acquired and transfer it to B. This inhibition of arbitrary legislation as to a right in property is not confined to a transfer of it from one person to another, but extends to attempts to impair its value or weaken its security. As the inchoate right of dower of Mrs. Mary Ann Alexander had attached to the land in question prior to the passage of the act, I am of opinion that its provisions do not apply to her interest therein.