Root v. . Wadhams

*391 Peckham, J. TMs is an appeal by the defendant from a judgment of the General Term affirming a judgment in favor of the plaintiff entered upon the decision of the trial judge at circuit without a jury. Among the facts found are the following: On the 10th of March, 1865, one Bradbury took a conveyance of the premises now occupied by the plaintiff, and in June, 1870, he conveyed those premises to one Rowley, who, in February, 1883, conveyed them to the plaintiff. Bradbury had also been the owner and in possession of the premises now occupied by the defendant for thirty years prior to April 5, 1882, at which time he died, and on the 3d of July, 1882, the defendant took title to these premises from the executors of Bradbury who had power to sell. Thus, from 1865 to 1870, Bradbury was the owner both of the premises occupied by the plaintiff and of those occupied by the defendant. In 1860 one Aldrich Windsor conveyed to one Beebe a strip of land situated between the two above-mentioned lots, and such intervening strip was, at all points between the other two lots, at least fourteen rods wide. So that at the time when Bradbury was the owner of the premises now owned by the plaintiff and defendant, respectively, those lands were, and at all times for the past thirty years had been, entirely disconnected and separated from each other by this intervening lot. In December, 1861, Beebe conveyed the intervening lot to one Trask, who, in 1868, conveyed it to one Olark, who, in 1870, conveyed it to one Root, who has since that time been and now is the owner thereof. The title, it will be observed, to the plaintiff’s and defendant’s premises, respectively, came to Bradbury from entirely different sources, and while Bradbury parted with the title to the premises now owned and occupied by the plaintiff in June, 1870, he continued to hold and own the premises now occupied by the defendant up to the time of his death, in 1882. The premises owned and occupied by the plaintiff are described in the various conveyances through which she claims title, by metes and bounds, “ with the appurtenances thereto belong *392 ing; ” and no conveyance makes any mention of any further or greater rights, “ or of any water rights, spring, or the right to take water from any spring, or from the spring hereinafter mentioned.” The title of the defendant was from the executors of Bradbury, and by a good and sufficient deed describing the lands and premises by metes and bounds, and containing no limitation or reservation whatever, “ nor any mention of any right in any other person to any spring or to the water from the same, in whole or in part, or to the use of. the same, which might be on the said premises.” On the premises owned and occupied by the defendant, there is, and has been for many years, a living spring of water, and some time, about 1860 or 1861, while Beebe was the owner and in possession of the intervening premises, fourteen rods wide, as above mentioned, he was desirious of obtaining a. supply of water from the spring situated on the defendant’s land, then owned by Bradbury, and for that purpose he applied to Bradbury to purchase from him the right to lay a pipe under the ground from the spring to Beebe’s house, upon the intervening land, and to take the water from the spring through the same. Bradbury refused to sell or convey to him any such right, or any right to lay a pipe or take water from the spring, but he gave Beebe a parol license to lay a pipe from the spring to his house, and conduct the water thereto, at the same time informing Beebe that he should make a small charge, therefor as the consideration for such privilege in the way of' an annual rent. Under this license Beebe put the pipe from the spring, under ground, to his house, where it discharged' water into an open tub, and where the pipe terminated. When -the subsequent owners of the same premises, then owned by Beebe, respectively, came into the possession of the same under their purchases, Bradbury informed each of them that he should charge rent for the water from the spring, and in this they all acquiesced. After Beebe put this pipe down, and some time after April, 1860, one Merchant, who was then the owner of the premises now occupied by the plaintiff, with the consent of Bradbury, *393 and also with the consent of Beebe, the owner of the intervening land, laid a pipe from his (Merchant’s) house on his premises, under ground, to the tuh on the premises of Beebe, and took the surplus water from the tub through the pipe for the use of his house. His right to lay this pipe and take the water also rested in a parol license only. Bradbury never conveyed to Beebe, or to any of his successors, any right or privilege to take the water from the spring, or to lay the pipe under the ground, excepting in the manner already stated. In 1865, Rowley was hving on the premises now owned by the plaintiff, as tenant of Bradbury, and with the knowledge and by the direction of Bradbury, he connected the pipe running from the spring to Beebe’s house on the intervening premises with the pipe running from the house on the premises on which he was then living and made one continuous line, a small branch pipe being attached to discharge the water into the tub at the Beebe house. Bradbury did not own the pipe leading from the spring to Beebe’s premises, but it was laid and owned by Beebe. In June, 1870, when Bradbury conveyed the premises now ownedby the plaintiff to the said Rowley, the water from the spring on Bradbury’s premises now occupied by the defendant was running through a pipe and discharging into a tub on the premises now owned by the plaintiff, in the manner above described, and the learned judge in his findings adds: “ That it was necessary for the use and enjoyment of such premises; and with such water running the plaintiff’s premises were of much more value than they would be without it.” This finding as to the necessity of the water for the use and enjoyment of the premises is limited by the further finding in which the learned judge says that the premises could have been supplied with water by means of a well dug on the premises. The defendant also offered to show such well could be dug for $25, which would furnish a constant supply of good water, but under objection the evidence was excluded. While Rowley was the owner of the premises now owned by the plaintiff, he informed the defendant, who was about purchasing the premises now owned by her from the executors *394 of Bradbury that no person other than the intended grantors owned the said spring, or any right in or to the waters of the same, or the right to take water from it, and she relied on such statement in making the purchase. Subsequently, the defendant disconnected the pipe from the spring on her premises, and this action was brought by the plaintiff to enjoin the defendant from such action and to enforce her right to a supply of water from the said spring. Upon thése facts the court granted the injunction and gave judgment for the plaintiff. She bases her right of action in this case upon two propositions, first, that the right to the use of this water passed to her by the deeds from Bradbury to Rowley, and from Rowley to her, as an appurtenance to the premises, and, second, that under the circumstances there was an implied easement consisting of the right to take water through or over the lands now owned by the defendant, so long as the parties owning intervening lands did not object to its passage across such lands in order to reach the lands now owned by the plaintiff. We think no such right passed by the several conveyances to plaintiff and her grantors, which simply conveyed the land by metes and bounds “with the appurtenances thereunto belonging.” Rothing passes by the word appurtenance except such incorporeal easements or rights or privileges as are strictly necessary and essential to the proper enjoyment of the estate granted. A mere convenience is not sufficient to thus create such a right or easement. (See Ogden v. Jennings, 62 N. Y. 526 ; Green v. Collins, 86 id. 246; Griffiths v. Morrison, 106 id. 165.) Ror do we think that under the circumstances there was any implied easement which passed to the grantees under the deed from Bradbury. It must be remembered that the two premises, although at one time both owned by Bradbury, were essentially two distinct plots of ground, and the title to each vested in Bradbury from a different source. Between the two lots of ground was this intervening strip of fourteen rods in width, substan *395 tially and physically separating the premises and making two separate and distinct lots. It must also be remembered that the spring existing on the land now owned by the defendant was owned by Bradbury long anterior to the time when he became the owner of the premises now owned by the plaintiff, and that before that time, and while the intervening lot was owned by one Beebe, permission had been obtained by Beebe from Bradbury to take the waters from the spring across Bradbury’s land to the lands now owned and occupied by Beebe, and that Bradbury had distinctly refused to grant him any permanent right, having given him simply a parol license to take it during his pleasure only, and in consideration of a small annual rent. This state of things existed at the time Merchant, who occupied at one time the land now owned by the plaintiff, was permitted to take the surplus water from the intervening lots and conduct it to his own premises; and that was done by the mere parol license of Beebe and Bradbury. The same state of things existed at the time Bowley succeeded Merchant as tenant to Bradbury, and subsequently as Bradbury’s grantee, Bowley at all times understood perfectly well the terms upon which his right existed to conduct the water over Bradbury’s premises to his own, and he understood that it rested simply upon the. parol license of Bradbury. All the facts show conclusively that Bradbury understood his own rights in the premises and never intended that any right to obtain the water from the spring on the premises now occupied by the defendant should accrue to the owners or occupiers either of the intervening lot or of the premises now occupied by the plaintiff. We see nothing in the facts found by the learned trial judge which would change the right to use the water from a right resting simply in a parol license, to an absolute right based upon an easement implied in agrant of the premises to plaintiff and her grantors. We do not think the case comes within the principle of those cases cited by the counsel for the plaintiff, of which Lamp *396 man, v. Milks (21 N. Y. 505), and Curtiss v. Ayrault (47 id. 73) are examples. In Lampmam, v. Milks the original owner of the land across which a stream flowed, diverted the stream through an artificial channel so as to relieve a portion of the land formerly overflowed by the stream, and that portion of the land he afterwards conveyed to a third party. The court held that neither he nor his grantees of the residue of the land could return, the stream to its ancient bed to the damage of the first grantee. That is an entirely different case from the one at bar. The land which the owner conveyed after he had diverted the channel of the stream would have become worthless by being overflowed if he or his grantees of the remaining portion had been permitted to return the stream to its original channel. The court held that under such circumstances the owner in conveying the premises, thus relieved from overflow, charged the remaining portion of the premises with the servitude of submitting to the stream running through their lands. In the course of the opinion in that case the learned judge distinguished between those easements which are continuous, that is, self-perpetuating, independent of human intervention, and those which are termed discontinuous easements, the enjoyment of which can be had only by the interference of man, such as rights of way or a right to draw water. In regard to such latter kind of easements, upon a severance of tenements by the owner, they only pass which are absolutely necessary to the enjoyment of the property conveyed. In Curtiss v. Ayrault the same general doctrine is held. In that case -it appeared that a marsh had been drained by the owner of the whole tract by digging a ditch which carried the water to other portions of the tract where it made a permanent channel in which the water, gathered in the marsh, flowed in a continuous stream, thus mutually benefiting the lands drained and the lands through which a supply of good water was thereby conveyed. The owner of the property, while these reciprocal benefits and burdens were in existence and apparent, divided the tract into parcels and conveyed the parcels to different grantees who contracted with reference to the then open *397 and apparent condition of the land, and it was held that such condition was essential to the enjoyment of all the lands, and especially to that portion which, by the digging of the ditch, had been drained and made good available land. To the same effect is Adams v. Conover (87 N. Y. 422), although that case arose under an alleged breach of covenant of warranty and of quiet enjoyment contained in the deed. It was contended that the covenant was broken because at the time of the conveyance of the premises, which consisted of a mill, a dam and a pond which furnished water power for the mill, they were in a certain visible condition in regard to the height of the dam, and yet a right existed in and was subsequently exercised by a third party to compel the lowering of such dam, the effect being to substantially ruin the premises for use as a water power, which was the sole consideration for their purchase and their chief value. The court held that the conveyance by metes and bounds, which included the dam and water power, conveyed the dam as it then stood at its existing and apparent height. The court said that the power of the water thus created and stored was the essential and material element of value in the mill property which was the subject of the conveyance, and, therefore, there was a breach of the covenant of warranty and of quiet enjoyment when it was shown that there was a superior right in a third person to demand a reduction of the height of the dam and the lessening of the head of water thereby, and it was so determined because of the fact that substantially the whole value of the property depended upon continuing the height of the dam as it existed, openly and apparently, at the time of the conveyance. We have carefully looked through the cases cited in the opinion of the learned justice who wrote at General Term, but we can find nothing in them that militates against the views here expressed. Upon all the facts in this case we are of opinion that there was nothing but a mere parol license proved from the grantor of the defendant, and that the right to take or convey water from the defendant’s premises did not pass to the plaintiff *398 by tbe use of the word appurtenance in any of the deeds to her or her grantors, nor did such a right pass as an easement by implication. The judgments of the General Term and of the Gircuit should therefore be reversed, and a new trial granted, costs to abide the event. All concur. Judgments reversed.