Brown v. Fuller

Brooke, J. (after stating the facts). The sole ques — 165 — tion for determination here is whether or not there is an implied reservation of an easement over the land sold by complainant to defendants. It is said that in reaching the conclusion he did, the learned circuit judge relied upon the case of Smith v. Dresselhouse, 152 Mich. 451 (116 N. W. 387). An examination of the facts in that case will at once demonstrate that it differs vitally and fundamentally from the case here considered. There the owner of two adjoining tenements, located upon either side of a river, upon each of which stood a mill, sold one of the tenements to the complainant in that case, and, as appurtenant to the tenement conveyed, sold the water rights. The owner and his grantees continued to operate the mill on the other side of the river, using the water for tíiat purpose. Complainant filed his bill to enjoin the use of the water. This court held that, as to the water, complainant was a tenant in common with the owner of the adjoining tenement on the opposite bank of the stream. Mr. Justice Ostrander, in stating the general rule, there said: “ It is a general rule of the law of easements that where the owner of two tenements sells one of them, the purchaser takes the portion sold with all the benefits and burdens which appear at the time of the sale to belong to it as between it and the property which the vendor retains.” " The matter under consideration was a grant, not a reservation, and in discussing the effect of the grant he further said: “We should not expect that a. grant of the land on one side of the river only, the grantor retaining the land and mill on the other side, and using the water there appurtenant, conveyed an exclusive, right to the entire water power. . The terms of the grant to complainant are express and seem to be unambiguous. The land is described by metes and bounds. One boundary is the center of the main channel of the river. The mill tract and the mill are within the boundaries. It is the mill privilege and water power 'there situate,’ i. e., appurtenant to the land conveyed, which is deeded, with the right to flow lands — 166 — and to ‘ use and make use of the water power there situated.’” Assuming, therefore, that the rule was correctly stated, the case was determined, not by any application of the rule, but by a construction of the terms of the grant. Nor is it applicable to the case under consideration. Here, the sewer was under ground. It was not apparent, and defendants are not shown to have had any knowledge of its existence under the land purchased by them. But, if they had such knowledge, that fact would not be controlling, because complainant knew that the use to which this property was to be devoted would uncover the sewer and, as it existed, destroy it. Even if it could be said that a grantor under any circumstances could by implication reserve the right to continue an underground sewer in the premises granted, which we do not determine, it would not aid complainant. Here, it is sought by implication to reserve the right to have the existing sewer destroyed and rebuilt in the air through the basement of the tenement to be erected upon the demised lands. Simply to state such a proposition would seem to be a sufficient answer. The rule applicable to implied reservations of easements is stated in 14 Cyc. p. 1171, as follows: “As regards implied reservations of easements, the matter stands on principle in a position very different from implied grants. If the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant. To say that a grantor reserves to himself in entirety that which may be beneficial to him, but which may be most injurious to his grantee, is quite contrary to the principle upon which an implied grant depends, which is that a grantor shall not derogate from or render less effectual his grant or render that which he has granted less beneficial to his grantee. Accordingly, where there is a grant of land with full covenants of warranty without express reservation of easements, the best considered cases hold that there can be no reservation by implication, unless the easement is strictly one of necessity.” — 167 — ' Cases are cited from many jurisdictions in support of this statement of principle, and we think it is in accord with the weight of modern authority. The great weight of authority touching the question, with reference to subterranean drainage, is to the efEect .that, if the owner of the land under which there is such a drain conveys a part of it with full covenants of warranty without reference to the drain, no easement is reserved. The grantor and his privies, under such circumstances, are estopped to claim any interest in the premises so granted. To permit such a claim would be to allow the grantor to derogate from the terms of his grant which, by every applicable principle, is forbidden. The authorities upon the subject are collected and discussed in 10 Am. & Eng. Enc. Law (2d Ed.), p. 420. See, also, 14 Cyc. p. 1169, and cases there cited, and Farnham on Waters & Water Rights, vol. 3, pp. 2454, 2455. In the recent case of Covell v. Bright, 157 Mich. 419 (122 N. W. 101), which upon principle much resembles the case at bar, we said: “To entitle the complainant to a decree, the burden was upon him to establish that the servitude was apparent, continuous, and strictly necessary to the enjoyment of his lands” — citing cases. In New Jersey, a different doctrine for a long time obtained, based upon the ruling in the celebrated case of Pyer v. Carter, 1 Hurlst. & N. 916, and those cases which followed the rule there laid down. Pyer v. Carter has frequently been severely criticised, and was finally distinctly overruled in England. The case of Toothe v. Bryce, 50 N. J. Eq. 589 (25 Atl. 182), contains a review of the English and American cases, questions the soundness' of the doctrine announced by that court in its earlier decisions, and seems to recognize the distinction between an implied grant of an easement and an implied reservation. While it is apparent from the record that it will be somewhat expensive to dispose of the sewage from com — 168 — plainant’s building otherwise than over defendants’ land, it by no means appears that it is impossible to do so. There is not made out, therefore, a case of strict necessity. The case presents this alternative: Either complainant at some, perhaps considerable, expense to herself, must take care of her own sewage and storm waters, or the defendants who purchased and paid for a tenement warranted to be free from all incumbrances, must take that tenement charged in perpetuity with an incumbrance of a very serious character and one which is liable, through the breaking or stoppage' of the drain, to cause serious annoyance and damage. Why should defendants be compelled to accept this burden ? Why should they be charged in perpetuity with the duty of defraying one-half of the expense of maintaining complainant’s sewer as well as the cost of its original construction ? So far as the record discloses, they have done no act which was not fully warranted by the terms of the grant to them. They have sought to make use of the granted tenement in a lawful manner and in a manner and for a purpose known by complainant before the sale. Touching the disposition of the storm waters, it is clear that, by the sale of the one-story building upon which it had theretofore been carried to the alley, with the knowledge that said building was to be immediately demolished, complainant must have known that such drainage would be interrupted. The very terms of her written contract show this, because she stipulated for the erection of a brick wall between the premises granted and those retained. This wall was to be 16 inches thick and about 40 feet in height. It is obvious that she could not have contemplated the carrying of her roof waters over that wall. At that moment it was apparent that some new arrangement must be made to care for this water. Defendants did not contract to build a new drain and carry it across their own property to the alley, nor did they agree to construct a new sewer, and we know of no principle of equity which would compel them to do so. — 169 — The decree of the court below is reversed, and the bill <of complaint is dismissed, and, inasmuch as the record discloses that defendants have expended certain sums of money in obedience to the mandate of the court in caring for complainant’s sewage and water, the record will be remanded for the purpose of ascertaining the exact amount of such expenditure which, when ascertained, shall be decreed to be a debt due from complainant to defendants for the collection of which execution may issue. Ostrander, C. J., and Hooker, McAlvay, Blair, and Stone, JJ., concurred with Brooke, J.