
    David Walters et al., Plaintiffs, v. Louise M. Hill et al., Defendants.
    (Supreme Court, Monroe Equity Term,
    October, 1914.)
    Easements — continuation of right of drainage across defendants’ farm — when not specifically mentioned in deed — damages.
    Plaintiffs and defendants are the owners of adjoining farms which were originally one. Hear the westerly line of plaintiffs’ farm there is a spring” and more than fifty years ago the then owner of both farms constructed a ditch leading from the spring across the entire farm to the highway. This ditch served the purpose of draining the westerly portion of plaintiffs’ farm, the water from the spring passing through said ditch across the lands now owned by defendants to a culvert in the highway and had existed in practically the same condition for more than fifty years before either of the parties to this action became interested in the tract of land. In an action for an injunction to restrain the obstruction of the ditch by defendants, which ditch was perfectly apparent at the time they purchased their lands, held, that they were chargeable with knowledge that the ditch existed across the entire easterly portion of their farm before they purchased it.
    That the right to drainage across defendants’ farm passed as an appurtenance to plaintiffs’ farm even though it was not specifically mentioned in the deed, and that plaintiffs had a right to expect that the easement imposed by the former owners of the property would be continued.
    Where, therefore, defendants, without plaintiffs’ consent, and over their objection, put in tile crossing their portion of the farm and filled up the ditch making a covered tile drain, and it is established that since defendants made such change portions of plaintiffs’ lands have not been drained as formerly and crops that they have planted have been injured because of the water standing on their lands, plaintiffs are entitled to the relief demanded in the complaint.
    Action for an injunction to restrain the obstruction of a ditch.
    
      Lynn Brothers, for plaintiffs.
    Havens & Havens (W. F. Strang, of counsel), for defendants.
   Clark, J.

Plaintiffs and defendants own adjoining farms in the town of Webster, Monroe county, N. Y., plaintiffs’ farm lying westerly of the farm owned by defendants. These two small farms were originally one farm consisting of forty-five acres of land. There is a spring near the westerly line of plaintiffs’ farm and more than fifty years ago the then owner of the entire farm constructed) a ditch leading from that spring in an easterly and northeasterly direction across the entire farm to the hig’hway, which is east of the entire tract. This ditch served the purpose of draining the westerly portion of the farm (now owned by plaintiffs), the water from the spring passing down through this ditch across the lands now owned by defendants to a culvert in the highway above mentioned.

This ditch had existed in practically the same condition for more than.fifty years before either of the parties to this action became interested in this tract of land.

On or about October 1, 1907, Martin Brothers of Webster became the owners of this entire tract of forty-five acres of land, they having purchased the property at referee’s sale, and on November 27, 1907, they sold by land contract the western half of the farm to the plaintiffs, they retaining the title to the eastern half, which was subsequently sold to defendants. Plaintiffs on or about December 2, 1907, paid to Martin Brothers on their land contract $200 and took possession of the western portion of the farm, and they have ever since been in possession thereof.

Subsequently and in the latter part of February, 1908, Martin Brothers sold the easterly half of.the forty-five acre farm, to a man named Fullington, his deed being recorded May 11,1908, and plaintiffs’ deed bearing date April 30/ 1908, was recorded two days thereafter, and by various mesne conveyances the title of the eastern half of this property passed to the defendants on the 1st day of September, 1911.

The ditch above referred to from the time of its construction more than fifty years ago, down to December, 1913, had always been an open ditch, and it served the purpose of draining from the westerly half of the farm the waters from the spring above referred to.

In December, 1913, defendants without the consent of plaintiffs, and over their objection, put in tile crossing their portion of this farm, and filled up the ditch, making a covered tile drain instead of an open drain, which had existed for so many years.

In constructing this tile ditch defendants started at the culvert east of their farm with an eight-inch tile, and proceeded westerly on their land some fifty odd feet, and from that point onto a point near the plaintiff’s line they used a six-inch tile, filling in the ditch above the tile so that all waters that came from plaintiffs’ land at that point must necessarily pass through this six-inch tile.

Moreover, at the westerly end of this six-inch tile put in by defendants, and at a point near plaintiffs’ easterly line, defendants filled in the ditch between the westerly end of the six-inch tile and plaintiffs ’ easterly line with cobble stones covered with earth, so that any water coming from the spring on plaintiffs’ land in order to get into the new tile ditch would have to drain through this stone construction.

After these changes had been made by defendants it was observed, and has been established here, that it resulted in a failure to drain plaintiffs’ land as it had previously been drained for many years by the open ditch. In other words, the limited capacity of the tile drain, and perhaps to some extent the cobblestone construction at the westerly end of it, together obstructed the flow of the water from the spring, so it resulted in setting the water back on plaintiffs’ land and portions thereof which had for many years been generally dry and upon which good crops had been raised were rendered practically valueless, because the water would not flow out through this tile drain but would be set back on plaintiffs’ lands and remain there until it soaked away or was evaporated.

Plaintiffs’ lands up near the spring in question were naturally low, but the open ditch referred to had served the purpose of adequately draining off this water, and there never had been any serious difficulty until defendants put in the tile drain above referred to, and the result has been that plaintiffs’ land has not been drained as in former years, for the new tile drain does not carry off the water as rapidly as it has been carried by the open ditch for more than fifty years.

This ditch was perfectly apparent at the time defendants purchased their lands, and could have been seen by the exercise of ordinary care, and under the circumstances defendants must be charged with knowledge that it existed across the entire easterly portion of the farm before they purchased it.

When plaintiffs purchased these lands of a common owner this ditch was apparent and visible to everybody, and it had been used by former owners for draining the waters of this spring for many years, and it must be held that plaintiffs ’ grantors, even though the ditch was not mentioned in the deed, granted to plaintiffs by implication the right to have the ditch across the easterly half of the lands remain as it was to the end that their lands might be drained as they had been in former years. The right to drainage across the •easterly part of the farm passed as an appurtenance of the westerly portion, even though it was not specially mentioned in the deed, and it undoubtedly materially affected the value of the land and plaintiffs had a right to expect that this easement imposed by the former owners of the property would be continued. Paine v. Chandler, 134 N. Y. 385; Trustees of Columbia College v. Lynch, 70 id. 440; Roberts v. Roberts, 7 Lans. 57; 40 Cyc. 650.

A careful reading of the numerous cases cited by counsel for defendants fails to change my conclusions that plaintiffs are right in their contention here, for each one of the cases cited is distinguishable as to the facts from the case at bar.

When plaintiffs purchased these lands, even though the ditch was not mentioned in their contract or deed, it was there open and notorious and it had been observed for more then fifty years by the neighbors living in that vicinity who knew that it was draining the waters from the spring above mentioned. This was a perfectly open and apparent burden placed upon the easterly half of the farm by a former common owner. Its draining of this spring had been without interruption and the continuance of this ditch to drain off the waters of the spring was reasonably necessary for the proper enjoyment of the westerly half of the farm, and that being so an easement would be implied in favor of that portion of the farm, even though it was not specially mentioned in the deed of people subsequently purchasing it. Wells v. Garbutt, 132 N. Y. 439.

Defendants have interposed a counterclaim, claiming that plaintiffs, by digging certain ditches, had turned water on lands of the defendants at other points causing them certain damages, but it is sufficient to say that upon all of the evidence with reference to the counterclaim it has not been established. Plaintiffs have drained no water on defendants except what would naturally flow upon their property, and the counterclaim must be disallowed.

Upon all the evidence in this case it impresses me that defendants were not justified in interfering with this open ditch, which had for so many years served the purpose of properly and sufficiently draining plaintiffs’ lands, unless they substituted a covered ditch of sufficient capacity to drain plaintiffs’ lands as' well as they had been drained before. This the defendants did not do, for it is established that since defendants made the changes heretofore referred to portions of plaintiffs’ lands have not been drained as formerly, crops that they had planted have been injured because of the water standing on their lands, and under the circumstances plaintiffs are entitled to the equitable relief demanded in the complaint, with costs to be taxed.

Findings may be submitted, and judgment is directed accordingly.

Judgment accordingly.  