Dolliff v. Boston & Maine Railroad

Walton, J. The plaintiffs are not entitled to recover, for the reason that they have failed to establish a right of drainage through the defendants’ land. Undoubtedly such a right may be established by an implied grant as well as by an express grant. But implied grants are not to be favored. They should not be held to exist except in cases of clear necessity. If it is intended that an easement shall pass as one of the appurtenauces of an estate, it is very easy to have this intention expressed in the deed. If the deed is silent upon the subject, it is no more than fair to the [177] grantor to presume that he did not so intend; and, to overcome this presumption, to require of the party claiming the easement clear proof that it is necessary to the beneficial enjoyment of the estate conveyed to him. Such is the doctrine maintained in Massachusetts, and it meets our approbation. In Johnson v. Jordan, 2 Met. 234, the court held that where the owner of two adjoining messuages and lots of land constructs a drain through one of them for the drainage of the other, and then sells the lots to different purchasers on the same day, and in the deed of the lot drained does not mention the drain, such purchaser acquires no right to the use of the drain through the other lot, if he, by reasonable labor and expense, can make a drain without going through that lot. In Thayer v. Payne, 2 Cush. 327, the court say that the question in such a case is whether the drain is necessary to the beneficial enjoyment of the estate conveyed; that this question involves the inquiry whether or not a drain can be conveniently constructed at a reasonable expense without going through the grantor’s land; because, if the grantee can thus furnish his premises with a drain, it cannot be necessary to the enjoyment of his estate that he should have a drain through the grantor’s land. Upon this point the plaintiffs’ case fails. The burden of proof is upon them to show, not only that a drain to their premises is necessary, but that it is necessary that it should go through the defendants’ land. In other words, that they could not, at a reasonable expense, provide their premises with a drain without going through the defendants’ land. This they have failed to do. On the contrary, it is stated as a fact in the case that such a drain could be constructed at an expense not exceeding $175. Judgment for defendants. Akpleton, O. J., BarRows, Yirgin, Peters and Libbey, JJ., concurred.