Shea v. Gavitt

Beach, J. The judgment for the plaintiff necessarily involves an adjudication in plaintiff’s favor on the issue of title, and that he was within his rights in building the side wall of the addition to his building in the manner described in the finding. It was claimed on argument that certain findings of subordinate facts were inconsistent with this adjudication. This question is not properly brought before us by a specific assignment of error, but we are satisfied that the findings are consistent with the judgment. The court finds that the boundary line between the plaintiff’s and defendant’s lands, according to the plaintiff’s deed, was by and along a certain fence; that the plaintiff built his side wall on and along the line forming the boundary line; and that a fence, evidently the same fence referred to in the plaintiff’s deed, had been maintained for twenty-five years as the defendant’s boundary line, which fence was taken down when the plaintiff’s wall was built. This fence is described in the finding as extending “from the corner of the wider part of the defendant’s building” and running in a direction away from Bank Street “about one foot distant from the defendant’s building”; and the description of the location of the fence as it existed before the plaintiff’s side wall was built is supposed to be inconsistent with the conclusion that the defendant’s wall is on the boundary line, because the wall is two inches inside of the extreme outer corner of the wider part of the defendant’s building, and because it is from eight to nine inches, instead of about one foot, distant from the defendant’s building. We *363 think, however, that the words “from the corner,” and “about one foot,” were intended merely as approximate locations, and when so understood they are entirely consistent with the other findings and with the judgment. We will not, by construction, create an inconsistency when it is clear that none was intended. The defendant’s claim of prescriptive right, presented by the second assignment of error, is negatived by the judgment and is not supported by the findings. The burden of proof was on the defendant to establish not only the maintenance of his building in its present condition for fifteen years or more, but also that it was so maintained adversely and under a claim of right. The maintenance of the building for the requisite time is found as a fact; but there is no finding that it was so maintained adversely or under a claim of right. Non constat but that it was so built or maintained by consent, sufferance, or implied license. It is argued that the mere maintenance of the building for so long a time is prima facie proof of an adverse claim of right. Whether that is true or not of the two inches as to which the defendant’s building apparently encroached upon and occupied the plaintiff’s land, is immaterial to the decision of this case; for on this appeal we are concerned, not with the actual occupancy of the soil by the building, but with the claim of an easement extending beyond the limits of such actual occupation. Whatever the rule may be in other jurisdictions, the probative effect of a long-continued unexplained use which does not wholly exclude or dispossess the owner of the legal title is, in this State, a question of fact and not of law. “The circumstances of this class of cases are so varied, and it is so important that every circumstance should be taken into consideration, that we doubt the propriety of laying down universal and absolute rules of law as to the effect in evidence of particular facts. *364 The party claiming title to an easement by user must of course satisfy the triers that the use was under claim of right and acquiesced in as such, and no doubt the fact of fifteen years open and continuous use is important evidence, and' may in many cases, under the circumstances of the use, carry conviction to the mind of the trier that it was under claim of right; yet we think the force of the evidence is matter of fact, and that the law does not give to it any peculiar effect, and that we ought not to grant a new trial because the court below refused to charge the jury in the manner requested by the plaintiffs.” Bradley Fish Co. v. Dudley, 37 Conn. 136, 147. In that case the easement claimed was a right of way, and the plaintiffs asked the court to charge the jury that an open and continuous use of the way for fifteen years unexplained is presumed to be under a claim of right and adverse. In Russell v. Davis, 38 Conn. 562, the rule above stated was applied to a case where the abandonment of common land was in question. We see no reason why it is not equally applicable to the present case; for it is not inherently improbable, or contrary to the usual course of human conduct, that the plaintiff’s grantors may have suffered the defendant’s roof to eaves-drip on an unused portion of their lot as a matter of favor. It follows that the finding of fact of an unexplained maintenance of the defendant’s roof for thirty years prior to 1903, is net inconsistent in point of law with the adjudication that no easement was thereby created. The remaining question in the case is that raised by the defendant’s first assignment of error, and the legal question involved is whether the defendant has a right, inherent in the ownership of his land, to permit the rain-water from his roof to flow against the plaintiff’s side wall. *365 On this branch of the case the defendant’s claim of law is that rain-water falling on the roof becomes surface water, and that under our decisions the defendant has the right to discharge such surface water on the plaintiff’s property, provided he does not collect it and discharge it in unreasonable volume through artificial means. Laying aside the question of whether the defendant correctly intei’prets our decisions, his claim comes to the point that the right of eaves-drip upon adjoining property is a right appurtenant to the ownership of land. We think this claim is fundamentally unsound. An examination of our decisions on the subject shows that they dealt with water flowing on the surface of the ground. Adams v. Walker, 34 Conn. 466; Grant v. Allen, 41 Conn. 156; Chadeayne v. Robinson, 55 Conn. 345, 11 Atl. 592; Smith v. King, 61 Conn. 511, 23 Atl. 923; Byrne v. Farmington, 64 Conn. 367, 30 Atl. 138; Goldman v. New York, N. H. & H. R. Co., 83 Conn. 59, 75 Atl. 148; Thompson v. New Haven Water Co., 86 Conn. 597, 86 Atl. 585. In Stein v. Coleman, 73 Conn. 524, 48 Atl. 206, we expressly refused to pass upon the correctness of a portion of the charge of the trial court which laid down the doctrine that rain-water falling on the roof was to be regarded as surface water; and it is plain that the right to dispose of surface water by allowing so much of it as is not absorbed by the ground to pursue its natural course, is quite a different thing from the right, claimed in this case, to intercept rain-fall and divert it upon adjoining property before it reaches the ground at all. In fact, the recognition by the common law of an easement of eaves-dripping, to be acquired by express grant or prescription, is inconsistent with any supposed common-law right of eaves-dripping as an appurtenance of the ownership of adjoining land. *366 As Mr. Washburn puts it, the easement "grows out of the fact, that, for one to construct the roof of his house in such a manner as to discharge the water falling thereon in rain, upon the land of an adjacent proprietor, is a violation of the right of such propi’ietor, if done without his consent, and this consent must be evidenced by express grant or prescription.” Washburn on Easements (3d Ed.) * 390. The authorities exactly in point do not seem to be very numerous, but so far as we know they are in accord with the above statement. In Martin v. Simpson, 88 Mass. (6 Allen) 102, 104, it is said: "No one has a right, by an artificial structure of any kind upon his own land, to cause the water which falls and accumulates thereon in rain or snow to be discharged upon land of an adjacent proprietor. Such an erection, if it occasions the water to flow, either in the form of a current or stream, or only in drops, works a violation of the adjoining proprietor’s right of property, and cannot be justified unless a right is shown by express grant or by prescription.” In Davis v. Smith, 141 N. C. 108, 53 S. E. 745, the complaint demurred to alleged the same condition of fact as exists in this case, of rain-water thrown against the plaintiff’s wall from a roof not provided with gutters; and the decision overruling the demurrer rests in part on the admission that this condition could be remedied at little cost by proper gutters and drains, and in part on the ground that a roof which prevents part of the rain-fall from soaking into the soil, collects and discharges the rain-water in a manner different from its natural discharge. In Huber v. Stark, 124 Wis. 359, 102 N. W. 12, there was a gutter and connections on the defendant’s roof which, under certain conditions of heavy rain-fall or when filled with ice, failed to carry off the rain-fall and *367 allowed it to fall upon the plaintiff’s roof; and the court, relying on Washburn on Easements and on Martin v. Simpson, supra, held that the right of eaves-dripping is an easement or interest in realty, and does not exist as a mere appurtenance to the ownership of adjoining land. We think this conclusion is correct. There is no error. In this opinion the other judges concurred.