Hamel v. Griffith

J. F. Daly, J. The premises first conveyed by defendant Griffith were the dominant, and those retained by him (No. 558) the servient, in respect to the easement claimed; and if the servitude was open and apparent at the time of the conveyance, the easement passes with the premises and cannot be destroyed by his act or that of his grantee (Lampman agt. Milks, 21 N. Y., 505). Apparent servitudes are defined to be not only such as are visible or must necessarily be seen, but such as may be seen or known on a careful inspection by a person ordinarily conversant with the subject (Gale & W. on Easements, p. 40; quoted with approval in 21 N. Y., 516). When defendant became the owner of the three houses and lots, he saw that the drainage of the houses was effected by means of pipes descending through the cellars, and he must have known that these pipes communicated with the sewer through drains. It was for him to ascertain, before conveying any of the premises, whether the drainage of each house was separate, if he desired to sever the premises effectually and sell one portion independent of the others. In the case of Butterworth agt. Crawford (46 N. Y., 349), it was held that the servitude was not apparent, because the drain pipe was .laid to conduct sewage from privies in the yard, and the court say.: “ There was nothing in the situation or appearance of the premises to indicate that there was any drain, drains not being a necessary accompaniment of privies in the yard, and no evidence- being introduced to show that drains from them we^e usual in- the locality in question.” It seems to follow from this -reasoning that where the appearances are such as to indicate beyond doubt that premises are drained by underground sewer pipes, and the owner of two such houses and lots, without making any inquiry as to whether the drainage of the two houses is separate, severs by selling the dominant tenement, and retains and subsequently conveys the servient, he and his grantee hold subject to the easement in the drain, if there be one. Houses such as those mentioned in the complaint, are drained by sewer pipes laid 307 under ground, to which the gutter and other waste pipes descend beneath the surface of the cellar or the yard. It is not too much to hold owners and purchasers to the obligation to inquire, or the responsibility of knowing, where these pipes descend to and by what channel the waste water reaches the sewer. It is not a matter of course that each house in this city is drained by a separate sewer connection. There is no evidence to show that such is the case, ór that the owner or purchaser has the right to presume that such is the ease. The injunction asked for must be granted, with ten dollars costs.