Robinson v. Hillman

Mr. Justice Robb delivered the opinion of the Court: The rule of the common law is well settled by a long line of authorities that where the owner of an estate uses a quasi easement of an apparent and continuous character over one part of his estate, for the benefit of the other part, and which is reasonably necessary to the enjoyment of that other part, and subsequently conveys the quasi dominant part to one person and the quasi servient to another, the grantees, in the absence of express provision, will take the respective parts burdened or benefited as they were prior to the division. Lampman v. Milks, 21 N. Y. 505; Barnes v. Loach, L. R. 4 Q. B. Div. 494, 48 L. J. Q. B. N. S. 756, 41 L. T. N. S. 278, 28 Week. Rep. 32; Goodall v. Godfrey, 53 Vt. 219, 38 Am. Rep. 671; Ellis v. Bassett, 128 Ind. 118, 25 Am. St. Rep. 421, 27 N. E. 344; Greer v. Van Meter, 54 N. J. Eq. 270, 33 Atl. 794; Eliason v. Grove, 85 Md. 215, 36 Atl. 844. So long as there is unity of ownership there can be no easement, for the obvious reason that the owner of the whole may at any time make such changes in any part as he pleases. When, however, the severance occurs, the rights of the owner of each part become fixed, and each is presumed to have purchased with reference to the [248] situation then existing. This rule is so well established that we content ourselves with its mere statement. The evidence before the jury, bearing upon the first count of the déclaration, was conflicting, plaintiffs’ evidence fending to show that said “4-foot strip” or right of way was established and located as averred in the declaration, and that the use of said right of way was reasonably necessary to the enjoyment of plaintiffs’ property, while the defendants’ evidence was to the contrary. It was for the jury to determine the issue thus raised, and their verdict must be accepted by us unless errors of law occurred. There being evidence before the jury that when the heirs of Hugh Gelston destroyed the unity of title theretofore existing, by dividing said estate among themselves, said right of way was apparent and well defined, and had been used for many years by the occupants of plaintiffs’ premises, and that such use was reasonably necessary to the enjoyment of those premises, the court’s charge to the jury on this branch of the case was correct. The verdict upon the second count of the declaration is challenged upon the ground that the alleged easement therein mentioned was concealed, and that there was nothing in the general situation reasonably calculated to convey notice of its existence. There was no evidence even tending to show that Hugh Gelston had actual knowledge of the running of this sewer pipe through lot 36. Whether, when that pipe was laid, there was a sewer in the 14-foot alley, is not important, for the reason that there was nothing to prevent Wools from running said pipe down said alley to the 35-foot alley. Lot 36 was then practically unoccupied, and there was no evidence before the jury which would warrant the finding that Gelston ever knew that the said sewer had been run through said lot. There was no evidence that any of the Gelston heirs, when they divided his estate among themselves, knew or had any reason to know of the existence of this sewer pipe in lot 36. How can it be contended that those heirs, when they made such division, took into consideration, as affecting the relative values [249] of tbe different parts, an easement the existence of which was not apparent, and in fact was unknown to them ? And yet the verdict under the second count must be sustained, if at all, upon that ground. To sustain that verdict upon the evidence in this case would do violence to the rule which the plaintiffs have invoked to sustain the verdict under the first count of their declaration. In the division among said heirs, there was nothing to indicate that lot 36 was burdened with this alleged servitude, nor was there anything to indicate that plaintiffs premises were benefited by it. In fact, it is more reasonable to suppose that the parties, knowing that said 14-foot alley either contained a sewer or Rd directly to the one used, assumed that Wools, the builder and owner of the three houses, ran the sewer pipe from those houses either to or down said 14-foot alley, and thus avoided trespassing upon lot 36. It is unreasonable to assume, from the evidence and the general situation of the premises, that Gelston’s heirs or the defendants knew of the existence of this sewer pipe. Taking into consideration the facts and circumstances surrounding this case, we are of the opinion that this buried or concealed easement, could pass only by express grant. In the cases heretofore cited, and in the other authorities examined by us, it appeared that the easement was either plainly apparent, or that the situation was such as to indicate its existence to anyone exercising ordinary care. In Pyer v. Carter, 1 Hurlst. & N. 916, 26 L. J. Exch. N. S. 258, 5 Week. Rep. 371, upon which plaintiffs rely, the court said: “The defendant stated he was not aware of this drain at the time of the conveyance to him; but it is clear that he must have known, or ought to have known, that some drainage then existed, and if he had inquired, he would have known of this drain; therefore it cannot be said that such a drain could not have been supposed to have existed; and we agree with the observation of Mr. Gale (Gale, Easements, 2d ed. p. 53) that by ‘apparent signs must be understood not only those which must necessarily be seen, but those which may be seen or known on a careful inspection by a person ordinarily conversant [250] with the subject.” The evidence before the court in that case evidently warranted the conclusion that the situation existing at the time of the conveyance to the defendant was such as to charge anyone exercising ordinary care with knowledge not only of the existence of the drain, but of its location. As above stated, there was nothing to charge the heirs of Hugh Gelston with knowledge of the existence of the sewer pipe in lot 36, and nothing requiring a reasonably prudent person to make inquiry in reference thereto. In Butterworth v. Crawford, 46 N. Y. 349, 7 Am. Rep. 352, the owner of two adjacent houses and lots in the city of New York built a vault, half of which was in each lot. The division fence of the lots extended over the center of the vault, and an outhouse for each dwelling was erected on either side of said fence and over the vault. The drain from the vault ran through one of the lots, which the defendant purchased. The plaintiff subsequently purchased the other lot. Whereupon the defendant closed up the drain. After stating the general rule, the court said: “Unless, therefore, the servitude be open and visible, or, at least, unless there was some apparent mark or sign which would indicate its existence to one reasonably familiar with the subject, on an inspection of the premises, the rule has no application.” The court also referred to Pyer v. Carter, supra, and distinguished that case from the case before it. The plaintiffs having filed a motion that they be permitted, in the event this court should be of opinion that error was committed with respect to the verdict and judgment under the second count in the declaration, but that the verdict and judgment under the first count was correct, to file a remittitur of the $416.64, recovered under said second count, that motion will be granted. (Hansen v. Boyd, 161 U. S. 397, 40 L. ed. 746, 16 Sup. Ct. Rep. 571.) The judgment under the first count will therefore be affirmed, each party to pay half the costs in "this court. Affirmed, as to the first count. [251] A petition for a rehearing was denied, the court in its opinion saying: This motion must be denied. Damages occasioned by the interference with the use and occupation of this easement were sought and obtained in the trial court without any question being raised as to the right of the tenant in possession to maintain such a suit. It is too late to raise the question here. It may be suggested, however, that one rightfully in possession of premises to which an easement is appurtenant is entitled to damages for the abridgment of that easement. Foley v. Wyeth, 2 Allen, 135; Hastings v. Livermore, 7 Gray, 196; Hamilton v. Dennison, 56 Conn. 368, 1 L.R.A. 287, 15 Atl. 748; Walker v. Clifford, 128 Ala. 67, 86 Am. St. Rep. 74, 29 So. 588. Motion denied.