Wetmore v. Fiske

A private way, called Lawrence Avenue, belonging to the estate of the late William B. Lawrence, extends along the easterly line of the complainant's estate. Very nearly in the line of this avenue, the water drained from land in the vicinity was accustomed to flow in a natural watercourse, or open ditch, along the entire length of the avenue and across the land of Lawrence, now owned by the respondent, into the sea. About thirty years ago, a drain, following the same general line, was constructed by Lawrence, to take the water underground. This drain consisted simply of a ditch about two and a half feet deep, with loose stones upon the sides and a stone-covered top. The complainant had no title to any part of Lawrence Avenue until August, 1872, when he purchased a lot of Lawrence, adjoining the westerly side of said avenue; but he claims that for more than twenty years prior to that time the drainage of his premises had flowed into the drain, as it had naturally flowed into the watercourse before it was changed by Lawrence. In August, 1881, the complainant, "desirous to further assure his title to the privilege of draining his said premises through the stone drain aforesaid," entered into an agreement, with mutual grants, with two of the trustees of the estate of said Lawrence, by which, he alleges, he obtained an express grant of a right of drainage appurtenant to his entire estate, through said Lawrence Avenue, and, "by necessary implication," across the land then owned by the trustees, and subsequently purchased by the respondent. In 1883, having built a new stable, which contained also a tenement for servants, the complainant relaid his drain-pipes, abandoning the outlets previously used, and connecting all, through the stable, with the drain in Lawrence Avenue. In 1885, the respondent, coming upon the drain while excavating upon his lot, and finding that it emitted offensive odors, cut off the drain on his premises and placed a dam across it; whereupon the complainant brought this bill to enjoin him from stopping the flow of water in the drain. *Page 356 Pursuant to our statute, Pub. Stat. R.I. cap. 192, § 16, the respondent set up in his answer, by way of cross-bill, that the complainant was wrongfully disposing of sewage through his drain, and prayed that he might be restrained from so doing. The complainant filed a replication to the answer, and an answer to the cross-bill; the respondent filed his replication to the answer to the cross-bill; testimony was taken, and the cause set down for hearing. The complainant then filed a discontinuance of his bill, and claimed that, under it, the cross-bill must also be dismissed as a mere dependency upon the original bill. This does not necessarily follow. "Whether the dismissal of the original bill carries with it the cross-bill depends on the character of the latter. If the cross-bill sets up matters purely defensive to the original bill, and prays for no affirmative relief, the dismissal of the latter necessarily disposes of the former. But where the cross-bill sets up, as it may, additional facts not alleged in the original bill, relating to the subject matter, and prays for affirmative relief against the plaintiffs in the original bill in the case thus made, the dismissal of the original bill does not dispose of the cross-bill, but it remains for disposition in the same manner as if it had been filed as an original bill." Lowenstein v. Glidewell, 5 Dill. 325, 329;Dewers v. Dewers, 55 Miss. 315; Jones, Dumright Co. v.Thacker Co. 61 Ca. 329; Worrell v. Wade, 17 Iowa, 96;Ragland v. Broadnax, 29 Gratt. 401, 419; and West Va. O. O.L. Co. v. Vinal, 14 W. Va. 637, where this subject is elaborately discussed. But the complainant contends that the respondent's bill is not a cross-bill, inasmuch as it introduces new subjects of litigation, distinct from those in controversy in the original suit. We do not think that the objection is well taken. The cross-bill pertains only to the subject-matter of the original bill, viz., the use of the drain. By way of defense to the stoppage of the drain, the respondent in the original bill sets up that the water comes down mingled with sewage, which the complainant has no right to discharge upon or through his land, and from such wrongful discharge he prays that the complainant be restrained. We do not see how any matters of original and cross-bill could be more closely connected. Indeed, they are identical. If the respondent can maintain his right to stop the discharge of sewage upon or through his *Page 357 premises, his right to restrain a further discharge must follow as an almost necessary consequence. The matter of the cross-bill, therefore, is not new nor distinct. In Atlanta Mills v.Mason, 120 Mass. 244, a bill was filed by an owner of a mill against a lower owner on the same stream, to restrain him from maintaining his dam at a greater height than he was entitled to. The defendant filed a cross-bill, alleging grievances in the use of the stream by the plaintiff, and the court held that, as it related to the same subject-matter, the respective rights in the use of the stream, it could be maintained, upon the principle that a plaintiff seeking equity should be prepared to do equity. We think that Fiske is entitled to proceed with his cross-bill notwithstanding the discontinuance of the original bill. Upon the cross-bill the question arises whether Wetmore, the respondent therein, has the right to discharge sewage from his tenement through the drain across the land of Fiske. Considerable testimony has been offered to show that he had acquired a prescriptive right to use the drain, but it is not necessary to decide that question upon this bill, inasmuch as the bill prays only for an injunction to restrain the discharge of sewage from the tenement over the stable. No prescriptive right can be claimed for this, since the stable and tenement have been recently constructed, and a right gained by prescription cannot be enlarged or extended beyond the prescriptive use. Cotton v.Pocasset Manuf. Co. 13 Met. 429. The right to discharge the sewage of the tenement into the drain, and so through the complainant's land, must be found, if at all, in the agreement of August, 1881. In this agreement, signed by those representing the Wetmore estate and by two of the trustees of the Lawrence estate, after mutual exchanges of rights of way through avenues opened and extended through the respective estates, and provisions that these shall be private ways for the owners of said estate, is the following clause: "together withthe right of drainage in and through the same, by said parties and signers hereof, and their heirs, successors, and assigns respectively, forever, as appurtenant to all and singular their respective lands." Several questions are raised by the complainant as to the validity *Page 358 and effect of this agreement, only one of which needs to be considered, viz.: Does the agreement, under the term "right of drainage," give to Wetmore, "by necessary implication," the right to turn sewage into the drain and across other land then owned by the Lawrence estate? We do not think it does. The agreement, by its terms, extends as far as Ruggles Avenue on the south, on which the land of Fiske abuts. At the time of its execution, a plan for public sewers, one of which was to be laid through Ruggles Avenue, was under consideration by the city council of Newport. It is significant that no mention is made of the drain then existing in Lawrence Avenue, but, on the contrary, the right of drainage is given to all the parties, through all the avenues, including those in which there were no drains. We think the agreement could not have been intended to include, as it does not in terms include, a right to send sewage from all the land comprised in the agreement, covering many acres, through the Lawrence Avenue drain to Ruggles Avenue, there to be disposed of by the owners of the Lawrence estate. The drain evidently was not constructed for, nor is it suitable to, such a service. If the respondent has the right, by the agreement, to discharge the sewage of one tenement, recently erected, with the further right of easement in the complainant's land for its disposition, he could erect many houses upon the many lots into which his estate can be divided, and all would have the same right; the result of which would be the creation of an intolerable nuisance. The possibility of such a result affords a strong presumption that it could not have been intended by the parties, and the improbability that the present owners of the land would use it to so great an extent does not raise a presumption that, for that reason, the owners of the Lawrence estate meant to subject their land to such a perpetual burden. The right of drainage granted in the agreement, so far as it relates to the Lawrence Avenue drain, must have been intended to cover the ordinary drainage of the land, as it had been accustomed to flow through the avenue, first in the watercourse, afterwards in the drain; together with the right, by a proper drain, to connect with the common sewer, when it should be built. This seems to be the most natural and reasonable meaning of the terms of the grant. While there has been no judicial construction *Page 359 of the words "drainage" and "sewerage," and in many cases they may be and are synonymous, yet, as they are used nowadays, they suggest to the mind a difference. Formerly the word "sewer" was used for "a fresh-water trench, compassed in on both sides with a bank; a small current or little river." Callis on Sewers, *80. So the statute 25 Henry VIII. cap. 5, "concerning Commissions of Sewers," was to remedy damage from the "flowing surges and course of the sea in and upon marsh grounds;" also land waters and springs upon meadows, and other watercourses. More recently, however, and probably from the appropriation of the word, in acts and ordinances, to the common conduits of liquid filth, it is usually associated with such a use. Thus Webster defines "sewers": "A drain or passage to convey off water and filth underground." For "drain" he gives: "A watercourse; a sewer." Kent speaks of the right of drainage, 3 Comment. *436, as a "right to convey water in pipes through or over the estate of another." In Goldthwait v. Inhabitants of East Bridgewater, 5Gray, 61, 64, the court says: "The words `ditch' and `drain' have no technical or exact meaning. They both may mean a hollow space in the ground, natural or artificial, where water is collected or passes off." So in The Queen v. GodmanchesterLocal Board of Health, 5 B. S. 886, a distinction is made between a drain and a sewer, but the distinction is based upon a statute. While we cannot say, as a matter of legal definition, that sewerage may not in some cases, be included in drainage yet, when the simple term "drainage" is used as appurtenant to lands, the most obvious suggestion is a drainage of water; and when, in addition, we find that a drain for water exists, and that no suitable provision is made for sewerage from houses which, if included, might result in a nuisance, we cannot think that an agreement for drainage, which did not include house drainage in its terms, could have been intended to cover it by necessary implication. A sufficient reason for the agreement in this case is found in the contemplated building of a sewer in Ruggles Avenue, with the right to take to it such drainage as the parties might properly take through the several avenues named. We therefore conclude that the respondent has no easement in the complainant's land for the discharge of sewerage from his *Page 360 tenement, through the drain in Lawrence Avenue, and that the complainant is entitled to relief as prayed.