Eliason v. Grove

Boyd, J., delivered the opinion of the Court. The appellant sued the appellee for damages alleged to have been sustained by him by reason of the latter’s interfering with his use of a well of water in Hancock, Md. We find from the record that Dr. W. H. H. Miller was the owner of two contiguous lots of ground in that town, which he improved by erecting thereon a double brick house. In the rear there was a well of water on or near the division line between the two houses. There was a fence dividing the lots connected with the two houses, and in the fence there was a gate near the well. During Dr. Miller’s ownership of the property he occupied the west side and rented the east side. He and his tenants used the well in common, and he testified that “ the well of which I have spoken and the houses were so constructed that the occupants of both sides of the house could have free access to the well for the use of the water;” that the tenants “ were entitled to the use of the water, and the houses were so constructed so as to give them the undivided right to it.” While that condition of affairs continued, on November 22, 1856, Dr. Miller sold the west side of the property to Lewis B. Evans, who on the 12th day of July, 1859, conveyed it to Dr. James B. Delaplane. The latter having died, it became vested in his widow and children, and the appellant claimed under them — 224 — as their tenant. On May 7, 1864, Dr. Miller conveyed the east side to Henry Fite, who on March nth, 1887, conveyed it to the appellee. None of the deeds mentioned or refer to the use of the well, or the approach to it by the owners or occupants of the west-side property, although the one from Miller to Evans does convey the property, “ together with all and singular the buildings, improvements, ways, waters, water courses, rights, members, privileges, advantages and appurtenances thereto belonging or in any wise appertaining.” Since the conveyance to Dr. Delaplane the occupants of the west-side property had the uninterrupted use of the water until the trouble arose that resulted in this suit. In 1869 Dr. Delaplane extended his building along the eastern line of his lot and put a door in the wall where the gate had stood, and after that the door was used as the gate had been. The pump is only three or four feet from the door, and is close to the wall of the Delaplane house— the appellee testified that it was from eight to fifteen inches away. There is some controversy as to' whether any portion of the well is on the west side of the division line although the pump is on the defendant’s property. Dr. Miller drew a plat from recollection, and he placed the division line very near the middle of the well, but he had not seen the property for many years: The plaintiff testified that he undertook to locate the westerly side of the well by digging down below the foundation of the house, and there found a stone which looked like the coping of the well, which projected about eighteen inches west of the wall of the Deleplane house. The location of the pump itself would seem to indicate that some of the wall of the well was probably on the Delaplane side, and there was certainly some evidence tending to show that such was the case. The appellee on April 1st, 1895, shut up the door above spoken of and thereby interfered with the use of the water and cut off the former approach to it — although there is evidence that he offered to let the appellant and his family use the well, provided they came in the yard by a — 225 — route designated by him. We will have occasion to more particularly refer to the prayers offered, but the main question intended to be presented is whether the owner of the west-side property acquired such a right to the use of the well and the way to it from the door as gives a cause of action against the appellee, who claims he was not aware of any such right before he purchased the property. As long as one person owned both properties it could not properly be said that an easement existed in favor of one of them, as the owner could not have an easement in his own land. But whilst that is true, it is also well settled that if during the unity of ownership the owner of two properties uses one for the benefit of the other in such manner as would have given rise to the presumption that an easement existed, if the tenements had been held by different persons, then upon a conveyance of the property so used an easement will be granted to the purchaser, provided the use has been such that the easement resulting from it would be of the class known as continuous and apparent, and would be necessary for the reasonable enjoyment of the property conveyed. The difficulty that often presents itself is the determination of the question whether the facts of the particular case before the Court bring it within that class. There has been confusion in some of the cases because they have not distinguished between implied grants of easements and implied reservations. By no Court has the distinction been more clearly defined than in the case of Mitchell v. Seipel, 53 Md. 251, where Judge Miller delivered an able and exhaustive opinion on the subject. The reason for sustaining implied grants is apparent as “ a grantor shall not derogate from his grant,” and when he intends to limit, restrict or burden the use of property conveyed by him for the benefit of property retained, he should express his intention in language that is not easily misunderstood. Whilst Courts should not be too ready to sustain grants by implication, yet if at the time of the purchase of property there are visible and apparent easements and privileges annexed — 226 — to it, which are necessary for its reasonable enjoyment, we must assume that they were taken into consideration when the price was agreed upon and that the use of them was paid for. We are not unmindful of the fact that the owner of two tenements may use each for the benefit of the other in such manner as he would not be willing to continue if he sold one of them, but if the use has been of such character as would induce the public to believe that it was attached to the property and is so to continue, it is but fair to a purchaser that a change of the state of the premises be made before the sale is consummated, or notice be given of the intended change by a provision in the deed, if the vendor does not intend to permit the former use of the premises to continue. That would not be asking too much of the vendor. In Janes v. Jenkins, 34 Md. 1, it was 'said, “Whenever, therefore; an owner has created and annexed peculiar qualities and incidents to different parts of his estate (and it matters not whether it be done by himself or his tenant by his authority), so that one portion of his land becomes visibly dependent upon another for the supply or escape of water, or the supply of light and air, or for means of access, or for beneficial use and occupation, and he grants the part to which such incidents are annexed, those incidents thus plainly attached to the part granted, and to which another part is made servient, will pass to the grantee as accessorial to the beneficial use and enjoyment of the land.” Again it was there said, “ The grantor being the owner of both tenements could, for the benefit of the tenement granted, fix upon his remaining tenement any servitude he thought proper. That being so, the relative rights and incidents of the two tenements must be taken as fixed at the time of severance by the first grant; and unless restrictive words are used, each will retain as between the two all such incidents and easements as are then openly and visibly attached to and used by it.” It is true there have been many decisions to the effect that an ordinary way, not being a way of necessity, which has been used during the unity of ownership, will not — 227 — pass upon a severance of the tenements unless proper terms are employed in the conveyance to show an intention to create the right de novo. It was so held in Oliver v. Hook, 47 Md. 301. But there are a number of cases which hold that ways may be so improved and well defined as to bring them within the class of easements, or quasi easements, known as continuous and apparent, and hence pass by implied grants. The tendency of many modern decisions has been to broaden the meaning of the term “ way of necessity,” so as to pass “ways ” by implication. In the case of Burns v. Gallagher, 62 Md. 462, it was held that the right to the use of the alley in controversy was vested in the plaintiffs by implied grant, or rather by way of estoppel. A man named Coffay was deemed by the Court to be the real owner of three adjacent lots which fronted on Eager street, in Baltimore City, and were designated in the opinion as the western, central and eastern lots. Decker street was on the easterly side and a three-foot alley on the westerly. In the rear an alley a little over two feet wide was laid off, which was fenced on each side and was used in common by the occupants of the three houses for many years. It was the only way of ingress and egress to and from the back yard of the central lot, except through the front door. In 1865 Coffay purchased, and paid for, the three lots from one Sanders, but only took a deed for the eastern lot. In 1866 Sanders, at Coffay’s instance, conveyed the western and central lots —the latter to Arthur Gallagher, under whom the plaintiffs claimed. In 1867 Coffay sold the eastern lot to the defendants, and no reservation was made in the deed to them in respect to the alley. The defendants closed the alley and obstructed the drainage of water that ran from a hydrant which was upon the division line, between the central and eastern lots, for which suit was brought. This Court referred to the well-settled principle that all apparent easements, or quasi easements, which are necessary to the reasonable enjoyment of the premises granted, and which have been and are at the time of the grant used or allowed to be — 228 — used by the owner of the entirety for the benefit of the part granted, will pass to the grantee by implication, and held that Coffay was bound and concluded in respect to the easement over the eastern lot retained by him, and that the defendants claiming and holding under Coffay with notice were equally bound. The Court said, “ The general principle of law is that where a person makes a grant or conveyance of property, he impliedly grants that also which is necessary to make the grant or conveyance of the principal subject effectual and beneficial; and in this case we must suppose that it was the intention, as doubtless it was the expectation of the parties, that the premises sold and transferred to Gallagher should be used and enjoyed with the same easements and privileges with which they had previously been used and were then enjoyed,” and sustained the right of the plaintiffs to the use of the alley. In the case now before us there is evidence to the effect that the well was, at the time Dr. Miller sold the lot to Dr. Delaplane’s grantor, used by the occupants of both properties as if it belonged to both, and that it was so used that it could fairly be inferred that it was the intention and expectation of the parties that the use of it should continue after the sale. The quasi easement was apparent — it was visible to any one going upon the premises. In addition to the fact that there is some evidence that at least a part of the well is on the Delaplane property there has been either a gate or a door on the division line since the houses were built by Dr. Miller. Prior to 1869 there was a gate in the fence, and sinc'e then a door in the wall of the Delaplane house, which was then extended along the division line. The door is where the gate was. There was for nearly thirty years before the defendant purchased his property an uninterrupted user of the gate or door, the approach to the well and of the well itself by the occupants of the Delaplane property. The door and gate were only three or four feet from the pump, and according to the testimony offered on behalf of the plaintiff, Dr. Delaplane and his — 229 — heirs had always contributed towards keeping the well in proper condition. It was not an occasional use of such privileges that was required, but a daily and probably, during parts of the day, almost hourly use of them. Nor was it of such character as to suggest a mere temporary or permissive use of the well. The houses were originally constructed with reference to it, and it has been used by the occupants of both houses from that time to the day the defendant obstructed the way. There was then evidence tending to place it in the class of continuous and apparent easements. That there was some evidence that it was necessary for the reasonable enjoyment of the property purchased we think must be conceded. The plaintiff testified that since the interference of defendant' he was required to send three or four hundred yards for water — “ about three hundred yards away, one-half the distance being up a steep hill, and that was the best and nearest supply he could get.” It is not so stated, but that may be subject to the control of some other person. There is nothing in the record to suggest that there would be any reasonable assurance of obtaining water by digging a well on the Delaplane property. To show that there was some evidence of notice to the defendant of the existence of the easement when he purchased, it is only necessary to recall some of the facts we have already stated. The door in the wall that'had been there for eighteen years and the location of the pump indicating that the well was partly on the other side ought to at least have put him on inquiry. In Janes v. Jenkins, supra, it was said, “As the wall had been erected and the lights therein were plainly to be seen when the appellant purchased the property overlooked by them, it is but rational to conclude that he contracted with reference to that condition of the property, and that the price was regulated accordingly.” So in Burns v. Gallagher, supra, the notice to the defendants was through the condition of the alley when they purchased. The recent case of Ormsby v. Pinkerton, 159 Pa. St. 458, presents facts very — 230 — similar, although not so strong as those in this case, and goes very far 'towards supporting the position of the appellant. Other authorities might be cited, and some of those relied on by the appellee distinguished from this case, but it is unnecessary, as we think there was sufficient evidence on all the material questions to be submitted to the jury, and there was therefore error in granting the defendant’s prayers — the first of which instructed the jury that the plaintiff had offered no legally sufficient evidence to entitle him to recover, and the second that under the pleadings and evidence he was not entitled to recover. The plaintiff’s first prayer ought to have submitted to the jury the question whether the use of this well was necessary for the reasonable enjoyment of the property, and also whether at the time of the sale from Fite to the defendant the well was so used and the state of the premises such as to be notice to the defendant that there was this servitude on the property purchased by him. The prayer was defective in not submitting those questions. His second prayer was properly rejected althoügh the theory of it that this easement could be acquired by prescription is correct. But the latter part of it assumes that there was a continuous user by the owners and occupants of the Delaplane property since 1856. The third was also properly rejected. It asked the Court to instruct the jury that if they found that the defendant knew that the plaintiff had a right to use the doorway so as to get water then they were not confined to the actual damages sustained by the obstruction nor the inconvenience and expense the plaintiff was subject to, “but may find such further damages as the facts and circumstances accompanying the acts of the defendant may warrant, taking also into consideration the motives of the defendant.” It proceeds upon the theory that the plaintiff was entitled to punitive damages merely because the defendant had knowledge of the plaintiff’s right to use the doorway, &c. — 231 — As we have indicated above proof of such knowledge, or of facts that impute such notice, was necessary to entitle the plaintiff to recover under the first prayer, and therefore it would be equivalent to saying that if they find for the plaintiff under the facts mentioned in that- prayer the jury must allow punitive damages. There is no such evidence of a malicious motive or of wantonness in the record, as would justify the allowance of such damages. (Decided February 24th, 1897.) For error in granting defendant’s first and second prayers the judgment must be reversed. Judgment reversed with costs, and new trial awarded.