Shaughnessey v. Leary

Holmes, J. The fact set forth in the report warranted a finding that the plaintiff had acquired a right by prescription to use the drain for waste water, excluding water-closet drainage, as it had been used for more than twenty years. The wooden drain has been there from 1866. The laying of an earthen drain inside the wooden one, taken by itself, did not interrupt the running of time in favor of the plaintiff. The fact that this was done at joint expense has no greater effect as matter of law. The owner of the now servient tenement may have joined, as well because he yielded to a paramount claim, as on the footing of a license given by him and accepted by the plaintiff. Even if the continuance of the pipe itself was not a trespass or adverse, the use of it over the servient land by the plaintiff may have been adverse just as easily when the defendant’s predecessor in title partly paid for it, as if the plaintiff had laid it wholly at his own expense. The fact that the use of the drain was greater, in the character of the substances discharged into it, after 1878, does not prevent the gaining of an easement for the less burdensome use which was continued for twenty years. The same known or discoverable thing, the drain pipe, remained unchanged in [112] place during the whole time. A greater or more burdensome use of the drain did not make it a different drain, nor destroy the character of such use as was continuous. The fact that a pipe from the water-closet was connected with the drain, in addition to a pipe from a sink, did not change the nature of the use from the sink. That the servient owner submitted to a greater use for a part of the time is no reason why his submitting to a-less use for twenty years should not have its usual effect. And if the matter be approached from the side of the dominant owner, the feeling of right which grows out of habit certainly is no less because larger intrusions have been carried out successfully for a part of the time during which the less have been practised without dispute. Baldwin v. Calkins, 10 Wend. 167, 177. Crossley v. Lightowler, L. R. 2 Ch. 478, 481. As the right was acquired before the defendant bought, it is not necessary to consider whether her ignorance of the existence of the drain when she took her deed would have affected the running of the necessary time. It did not put an end to the existing easement. The registry laws do not extinguish easements by prescription in favor of purchasers without notice. Pub. Sts. c. 120, § 4. See Johnson v Knapp, 146 Mass. 70, 73. We have discussed the question whether the plaintiff has any right in the drain, as both parties have treated that question as open on the report. Whether it is so or not we express no opinion. May v. Gates, 137 Mass. 389. Moors v. Washburn, 159 Mass. 172, 176. Harris v. Harris, 153 Mass. 439. We cannot say that the plaintiff has a prescriptive right to discharge his water-closet through the drain. As we have implied already, the judge may not have found that the drain was maintained adversely, but only that the plaintiff’s use of it was adverse. If so, it is not necessary to consider whether, if a drain had been laid and maintained adversely, it would carry the right to use it for all possible purposes, without regard to the way in which it had been used in fact. If the easement is only a right to use, the right must be limited to use of the kind which has been made for twenty years. Decree affirmed.