Onthank v. . L.S. and M.S.R.R. Co.

In May, 1863, one Brown, whose farm adjoined that of the plaintiff, executed to the Buffalo and State Line Railroad Company a deed granting to it, and its successors and assigns forever, the right to enter upon his land "for the purpose of building and maintaining a reservoir for water, and laying down and maintaining an iron pipe or conductor to carry the water from said reservoir to the water-tanks at the Portland station, and also the right to build and maintain blind and covered ditches to conduct the water to the said reservoir; the said iron pipe is to be laid at least two feet below the surface of the ground." The plaintiff, knowing of the contents of this deed, on the same day executed to the same company a deed granting to it, and its successors and assigns forever, the right to enter upon his land "for the purpose of laying down and keeping in repair an iron pipe or conductor, to carry water to the water-tank near the Portland depot, which pipe are to be laid at least two feet below the surface of the ground." The defendant has succeeded to the rights of the grantee in these deeds. At the date of the deeds, there was a spring on Brown's land, the water of which flowed out of his land on to and across plaintiff's land in a well-defined, natural channel, which furnished a constant supply of water for plaintiff's cattle and horses. After the deeds were given, the grantee excavated a reservoir upon Brown's land, and collected therein the water of the spring and of the adjacent land; and it laid down two-inch iron pipe from the reservoir across Brown's land and plaintiff's land to Portland station. The pipe thus laid down remained until 1871, and during all that time there *Page 197 was enough surplus water flowing in the old channel to supply all plaintiff's wants. In 1871, the defendant improved and repaired the reservoir and the drains leading into it, and put down a four-inch pipe instead of the two-inch pipe, and thus used so much of the water of the spring as to leave running an insufficient quantity for the use of the plaintiff. This action was brought for the injury caused plaintiff by laying down the enlarged pipe, and thereby diverting the increased quantity of water. Plaintiff's grant to the railroad is general and indefinite. It does not define or limit the place in which the pipe was to be laid, nor specify what water was to be conducted. Hence the surrounding circumstances, such as the existence of the spring, the channel over plaintiff's land, the execution of the deed by Brown, the topography of the country, and the acts of the parties both prior and subsequent to the grant may be considered for the purpose of learning the intention of the parties, and thus defining and limiting the easement granted. (French v. Hays,43 N.H. 30.) It is thus made manifest that it was intended by plaintiff's grant to give the right to lay down pipe to conduct water from the reservoir on Brown's land over his land to the Portland station, which would otherwise flow in the natural channel above mentioned. After the grantee had once laid its pipe and, thus selected the place where it would exercise its easement thus granted in general terms, what was before indefinite and general became fixed and certain, and the easement could not be exercised in any other place. This is confessedly so in reference to rights of ways granted in similar terms. (Washburn on Easements, 225, 240;Wynkoop v. Burger, 12 J.R., 222.) And the same rule of construction was applied to the right to lay an aqueduct from a spring, granted in general terms, in Jennison v. Walker (11 Gray, 423). In that case BIGELOW, J., said: "Where an easement in land is granted in general terms, without giving definite location and description to it, so that the part of the land over which the right *Page 198 is to be exercised cannot be definitely ascertained, the grantee does not thereby acquire a right to use the servient estate without limitation as to the place or mode in which the easement is to be enjoyed. When the right granted has been once exercised in a fixed and definite course, with the full acquiescence and consent of both parties, it cannot be changed at the pleasure of the grantee." And he said: "This rule rests on the principle that when the terms of a grant are general or indefinite, so that its construction is uncertain and ambiguous, the acts of the parties, contemporaneous with the grant giving a practical construction to it, shall be deemed to be a just exposition of the intent of the parties." It is clear, then, that the right to lay the pipe under plaintiff's grant was fixed by the act of the grantee, and the acquiescence of the grantor to the place taken, and it cannot be exercised in any other place across plaintiff's land. But why is not the right also fixed for the same reasons as to the size of the pipe, and the quantity of water to be diverted? I can perceive no reason for confining the operation of this rule to the mere place where the right is to be exercised. There is the same reason for applying it to the entire right granted. InBannon v. Angier (2 Allen, 128), the same learned judge again said: "Where a right of way or other easement is granted by deed without fixed and defined limits, the practical location and use of such way or easement by the grantee under his deed acquiesced in by the grantor, at the time of the grant, and for a long time subsequent thereto, operate as an assignment of the right, and are deemed to be that which was intended to be conveyed by the deed, and are the same in legal effect as if it had been fully described by the terms of the grant." The language used in plaintiff's grant shows quite clearly that it was not intended that after the grantee had laid down a pipe, it should have the right to enter upon the land to lay down a larger pipe. The right granted was to enter upon the land, and lay down a pipe two feet below the surface, and to keep that pipe in repair, not to enter upon the *Page 199 land at any time, and dig up the soil for the purpose of laying down a larger pipe. Plaintiff's action is therefore maintainable, and the order of the General Term must be affirmed, and judgment absolute for plaintiff. All concur, except CHURCH, Ch. J., not voting; FOLGER and MILLER, JJ., absent. Order affirmed and judgment accordingly.