Lewis v. Carstairs

The opinion of the court was delivered by - Gibson, C. J. Two principal subjects of direction are comprised in the assignment of errors,—Mr. Burd’s reservation of a right in the alley for himself and his grantees, subsequently confirmed by the plaintiff,—and the defendants’ adverse enjoyment of.the alley, in connexion with their contribution to the expense of keeping it in order, on a common understanding that all were liable for their proportion of it. By the conveyance in which the reservation is contained, Mr. Burd granted to Mr. Sims a lot butting on an alley, of which Mr. Burd had then the exclusive use, “ together with the free use and privilege of the said alley as a passage in common with the said E. S. Burd and his heirs, and those to whom he may likewise grant the same;” and the first question is whether his power to grant was appurtenant or in gross. The alley was contiguous, not only to the ground granted, but also to Mr. Burd’s other ground; and did the matter stop here, the spirit of the decision in Kirkham v. Sharp would go far to restrain it to the former. Such a reservation, however, „ was unnecessary; for it was settled in Watson v. Bioren, (1 Serg. & Rawle, 227,) that each grantee of a parcel of ground to which such an easement is appurtenant, is entitled to the benefit of it; and Mr. Burd’s grantees would consequently have been entitled without it. The parties, however, seem to have been ignorant of that; and the object of the reserved power, unexplained by the subsequent agree- • ment with the plaintiff, might seem to be no more than expressly to append the use of the alley to the other ground, and to put Mr. Burd’s right to pass it as an appurtenance, beyond the reach of cavil: for it would be unreasonable to intend that the parties had in view a power to sell the privilege, and thus let in all the neighbouring proprietors. Mr. Sims would -probably have refused to purchase on terms that would have allowed Mr. Burd to surcharge. Even had such a power been' reserved, it is doubtful whether it could have been exercised by Mr. Burd’s grantee. It is certain that a privilege merely personal, cannot be granted over; and thus if a man lend his horse, the borrower cannot lend him to another: nor can a right of way for life, or common of estovers be granted. 2 Rol. 46. But, however that may be, the easement passed from Burd to Murray as appurtenant to the residue of Burd’s ground; and it could pass in no other way, for the conveyance contained no power in gross to grant it without stint. On that state of the case, then, Murray could not append it to ground to which it was not appendant before; and how can his, or Mr Burd’s, power be enlarged by the agreement with the plaintiff? [208] If there were a doubt about the object of the reservation as it appears in the conveyance to Sims, this agreement would solve it. Mr. Burd had laid off only a narrow strip of the original lot for the alley; and that it was not enough for the purpose, was well understood by the parties at the time of the conveyance. A few months after-wards, the plaintiff agreed to throw in an additional foot on the other side, in consideration of being allowed to use the alley in common with the other two. That this agreement was contemplated by the original parties at the time of the conveyance, which is expressly mentioned in it, and that the end of the reservation was to provide for it so as to introduce the plaintiff as a third party by the description of a grantee, is undisputable; and the agreement, then, was an entire execution of the power. . But though no right to the easement passed to the defendants by the conveyance of Burd, or of Murray his grantee, it remains to be seen whether there was not presumptive evidence of some other1 grant which might have been left to the jury; and whether the facts said to be proved by it, did not constitute an equitable estoppel in favour of an innocent purchaser, who may have parted with his money on the faith of them. In the conveyance to Murray, the easement is described as an alley and “ water-course over and along the same.” It is as obvious to the spectator that these alleys are used as much for drainage as for passage, as it is obvious to the lawyer, that the word watercourse was here used in a sense very different from its technical one. ■ A water-course, it is said in 3 Bulstr. 340, begins not by prescription, nor yet by assent, but ex jure natures ; and that being a natural course, it may not be diverted. And we know that our interest in it will be protected, even when it sinks below the surface. But a water-course over and along an alley is, by the words of its description, a superficial, as well as an artificial one,; and the ownership of it consequently gives no right to break up the soil for the purpose of laying pipes, which, being - a subject of separate grant, might be acquired by adverse use, without, at the same time, acquiring a right of way. Now should it be found that the evidence had regard to expenditure for laying pipes, or for replacing the pavement; having laid them, it would go to prove a contribution to a' general charge of a very different nature from that which would imply the existence of a joint right to the alley as a passage and a drain. On the other hand, if the expenditure was for the ordinary repairs of the alley, the payment of Mr. Biddle’s proportion of it, could be looked upon in no other light than that of contribution to a common burden founded in a common obligation and con’elative right in the thing which was the subject of it; and as such a right could exist only on the basis of a grant, the admission of obligation implied from the act of contribution, would be an admission of a grant, the evidence of which would be proper for the jury, not as [209] conclusive or even necessarily prima facie, but as operating just so far as it should produce conviction ,<of the fact. As a ground of equitable estoppel, however, it might be conclusive, if, to the appearance of adverse enjoyment occasioned by the plaintiff’s supineness, were added positive acts of acquiescence, on his part, which may have encouraged an innocent purchaser to pay his money on the faith of them. This estoppel has its root in a plain • and familiar principle of equity, vvhich casts a loss from a voluntary, though innocent act, on the author of it. Now, though the evidence did not show very clearly the specific object to which Mr. Biddle’s contribution had been applied, there was still something to be left to the jury. The testimony of Doctor Shoemaker and Looney undoubtedly had regard to expenditure for laying pipe; but Mr. Biddle testified that he paid his contribution for repairs done to the alley; and in that, he is corroborated by Mr. Sims’s receipt for so much paid for Mr. Biddle’s own, and Mr. Craig’s, proportion of the'expense incurred for paving it. Now this paving could not have been a part of the expense incidental to the laying of the pipe spoken of by the other witnesses; for that was done in 1834, and Mr. Biddle’s payment was in 1821. It is certaintly true, that there was a pipe there before, ■ but how long, is not stated. Doctor Shoemaker speaks of its existence at the time of Miss Care’s purchase ; blit that was so late even as 1833. There was nothing therefore to connect Mr. Biddle’s payment with the expense of any pipe whatever; and the attention of the jury was withdrawn from its importance by having been exclusively directed to the evidence of adverse possession for a period equal to that of the statute of limitations. Though the direction was accurate as regards the abstract principle laid down, it tended directly to mislead by inducing the jury to understand, that under the'circumstances of the case, the duration of the naked possession was the only criterion. Judgment reversed, and a venire de novo awarded.