
    CHARLESTON.
    Miller v. Skaggs.
    Submitted February 13, 1917.
    Decided February 20, 1917.
    1. Easement — Grant—Necessity.
    To raise an implied reservation or grant of an easement the existing servitude must at the time of the deed be apparent, continuous and strictly necessary, (p. 647).
    2. Same — Bights of Purchaser — Benefits and Burdens.
    
    It is a general rule of the common law, applicable in such cases, that when the owner of two tenements sells one of them, or the owner of an entire estate sells a portion thereof, the purchaser takes the tenement or 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, (p. 648).
    3. Same — Dram—Visibility.
    An apparent easement need not be actually visible. It is enough that the facts and circumstances, fairly construed,- will disclose it as in the case of a drain pipe under the surface into which the water is conducted from a roof. (p. 648).
    4. Same — Beservation or Grant — Necessity.
    The rule of strict necessity applicable to an implied reservation or grant of an easement is not limited to one of absolute necessity, but to reasonable necessity, as distinguished from mere convenience, (p. 649).
    
      Error to Circuit Court, Summers County.
    Action on the case for damages by Janet E. Miller against C. H. Skaggs. Judgment for plaintiff, and defendant brings error.
    
      Affirmed.
    
    
      T. N. Read, for plaintiff in error.
    
      Wm. H. Sawyers and R. F. Dunlap, for defendant in error.
   Miller, Judge : '

An action on the case for damages for obstructing a private sewer serving the adjoining properties of the parties and other properties and running under and across a corner of defendant’s lot at the rear end thereof.

Plaintiff obtained a verdict and judgment for three hundred dollars, and defendant sued out the present writ of error.

One J. A. Graham once owned both properties, and then in connection with the owners of adjoining properties built and maintained the sewer in question. All properties served, including that of the defendant, are situated on a hill side; defendant’s property faces Second Avenue, as does the property of one Cundiff, at the corner of- J ames Street and Second Avenue, and as does the hotel property also of plaintiff, that of the defendant being situated between the Cundiff property and plaintiff’s hotel property; and the sewer in question after leaving the lot of defendant runs down between his property and the plaintiff’s lot, and connects into the city sewer on Second Avenue. The property of plaintiff affected by the defendant’s act complained of, however, fronts on James Street immediately back of the Cundiff property, and between it and the property of one James, and below it and the property of one Pucket, the other properties connected into said private sewer.

The sewer in question serves both as a sanitary and a storm sewer, and there is connected into it not only water closets, bath tubs, and sinks from the respective houses on the lots, but down spouts from the roofs thereof are also run into it, the latter on the plaintiff’s property evidenced by terra cotta tiling projecting above the ground and plainly visible from defendant’s property; and the lateral pipe or sewer from the Cundiif property crosses the entire width of defendant’s property back of, his house and is connected into the sewer before leaving his lot. The evidence shows that the main trunk of this private sewer occupies the natural channel for the drainage of the surface waters from the hill side and is practically coincident with an old drain or gutter once open and defined for a part of the way at least across defendant’s lot by a stone curbing, but at the time of -the sale and conveyance to defendant the sewer had been laid under ground and was in use and serving the properties of all parties connected therewith.

Defendant obtained his property by deed dated November 30, 1909, and the injuries complained of occurred on or about September 30, 1915. A few days prior to that time defendant had dug down to and torn up the sewer where it crossed under his lot, and stopped it up with old rags and clothing, completely shutting off the flow of the water and sewage, and a heavy rainfall occurring thereafter and at the time of the injury, the water and sewage backed up and overflowed the basement of plaintiff’s house, resulting in the damages for which she sued.

Neither in the deed from Graham to his immediate grantee, nor in any of the intermediate deeds down to and including the deed from one Butler and wife to defendant was there reserved in terms any easement over the lot of defendant for the purpose of said sewer, and it is conceded that if such easement exists it -is one implied in the original grant by Graham and the intermediate deeds referred to.

In accordance with the weight of modern English and American decisions we have decided that an implied reservation or grant of an easement can only arise where at the time of the deed or grant the existing servitude is apparent, continuous, and strictly necessary to the enjoyment of the dominant estate. Hoffman v. Shoemaker, 69 W. Va. 233, and authorities cited.

And there seems to be no material distinction in the application of this principle between an implied reservation and implied grant of such an easement, except that in a grant the terms of the grant according to the general rule is to be construed most strongly against the grantor in favor of the grantee. 9 R. C. L. 765, and cases cited.

And there is a well recognized rule of the common law, .applicable to cases of implied reservations or grants of such easements, namely, that where the owner of two tenements sells one of them, or the owner of one entire estate sells a portion thereof, the purchaser takes the tenement or 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. Lampman v. Milks, 21 N. Y. 505; Seymour v. Lewis, (N. J.) 2 Beas. Ch. 439; Washburn on Easements and Servitude, (4th ed.) 95; Harwood v. Benton, 32 Vt. 733; Goodal v. Godfrey, 53 Vt. 219, 38 Am. Rep. 672.

That an underground pipe or conduit, such as a sewer, constitutes’a servitude within the meaning of the authorities needs no further elaboration. The distinction between a way or road and an easement for a pipe line or sewer is noted in Hoffman v. Shoemaker, supra. Its continuous character is determined by the fact that it needs no intervention of other agency to keep it alive, and because in its nature it is continuous.

The grounds of defense interposed to plaintiff’s theory of an implied reservation were that the alleged easement was neither apparent nor strictly necessary, so as to entitle plaintiff to continue the servitude upon defendant’s property.

We said in Hoffman v. Shoemaker, supra, page 238, in accordance with the great weight of authority, that “an apparent easement need not be actually visible. It is enough that the facts and circumstances, fairly construed, will disclose it, as in the case of a drain pipe under the surface into which the water is conducted from a roof.” In 10 Am. & Eng. Eney. Law, 405, apparent easements are defined as ‘ ‘ Those the existence of which appears from the construction or condition of one of the tenements, so as to be capable of being seen or known on inspection.” And in Larsen v. Peterson, 53 N. J. Eq. 88, 30 Atl. 1094, it was said that the mere fact that a drain or aqueduct may be concealed from casual vision, will not prevent it from being apparent in the sense in which that word is nsed.

• In the ease in hand the general lay of the land, the natural drainage, all tending from both sides of the sewer to that point; the knowledge which defendant must have had from the connections therewith from plaintiff’s property, and from his own and other properties; the absolute necessity for some drainage and sewerage for the reasonable use of these properties, we think were sufficient, and must have rendered the existence of the sewer through his property reasonably apparent, and so as to charge him with notice thereof. The .authorities cited and many that might be cited support this conclusion.

But was the .easement claimed one of strict necessity within the meaning of the authorities referred to ? The rule of strict necessity has not been uniformly defined by the courts. But the greater number in weight and reason hold this rule not to be limited to one of absolute necessity, but to reasonable necessity, as distinguished from mere convenience. 9 R. C. L. 765, section 28; Wells v. Garbutt, 132 N. Y. 430; Dillman v. Hoffman, 38 Wis. 559; Paine v. Chandler, (N. Y.) 19 L. R. A. 99; Miller v. Hoeschler, (Wis.) 8 L. R. A. (N. S.) 327, note III b. 328. In John Hancock Mut. Life Ins. Co. v. Patterson, 103 Ind. 582, it was decided that if the service imposed on one during unity of possession of two parcels was of a character looking to permanency, and discontinuance of such service would absolutely involve an actual and substantial re-arrangement of these parts of the estate in whose favor the service was imposed, to the end that it might be as comfortably enjoyed as before, then such necessity would seem to exist. Our case of Bennett v. Booth, 70 W. Va. 264, seems to'be in accord with this principle of implied reservation.

A decision well illustrating cases where the rule of reasonable necessity should not be applied is Bussmeyer v. Jablonsky, (Mo.) Ann. Cas. 1913C 1104. And Jones on Easements, section 156, says: “The term ‘necessary’ is to be understood as meaning that there could be no other reasonable mode of enjoying the dominant tenement without .this easement.” And in section 157, the same authority says: “The degree of necessity that must exist to give rise to an easement by implied grant, or to an easement by implied reservation, where such an easement is recognized, and no marked distinction is-made between a grant and a reservation,-is such merely as-renders the easement necessary for the convenient and reasonable enjoyment of the property as it existed when the-severance was made. ‘ The degree of necessity .is to be determined rather by the permanency, apparent purpose, and adaptability of the disposition made by the owner during the unity of title, than by considering whether a possible use can be made of the parcel granted, after a discontinuance-of the right formerly exercised over the other.’ The use of the right need not be absolutely necessary to the enjoyment of' the thing granted. It is only requisite that the right shall materially affect the value of the thing granted. ’ ’

On the trial below it was conceded that plaintiff had no way of-drainage or sewerage by way of James Street, or through adjoining lots, and whether it was reasonably possible to get from her lot fronting on James Street by changing the course of the sewer so as to make it run through her hotel lot or in some other way; and whether the sewer through the defendant’s lot Avas so apparent, as to charge defendant with notice thereof, were disputed facts properly submitted to the jury under the evidence, by instructions properly propounding the laAV of the ease, and by the verdict of the jury these facts were found adAersely to the contentions of the defendant, and we see no reason for disturbing that verdict or the judgment thereon. The judgment, therefore, Avill be

Affirmed.  