
    Lewis Munsion, Resp’t, v. John Reed, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November, 1887.)
    
    1. Servitudes—When they do not exist by grant.
    A party, who was the owner of several lots adjoining one another constructed a covered ditch through them, and subsequently conveyed the lot now owned by the defendant in this action, granting the right to use the drain, leading over the lot owned by him, to the street. Thereafter he conveyed a lot.further removed from the street, ‘ ‘ together with all,and singular, the hereditaments and appurtenances.” The latter lot was after several mesne conveyances granted to this plaintiff, “ together with the free and undisputed use o, the drain in common with the other owners, with the appurtenances. Held, that the grantee of property has a right to suppose the apparent condition of the property to be the real one, and that if his deed gives no notice of any right in favor of a lot retained by the grant r upon or across the lot conveyed, the latter was freed from the servitude.
    2. Adverse possession—What necessary to constitute.
    
      Held, that use of such a water course, it not being apparent, could not he adverse until notice to the party over whose land it led.
    Appeal from a judgment in favor of the plaintiff, entered in Albany county upon the decision of the court, upon a trial at the circuit, without a jury.
    The action was brought to establish the right of the plaintiff to maintain and use a drain or sewer leading from his own premises across the premises of the defendant, and to enjoin the defendant, from obstructing the same.
    The evidence tended to show that in 1845 Platt Williams was the owner of five lots, situate between Clinton avenue (formerly Patroon street), on the north, and Orange street on the south, as shown in the following diagram:
    
      
    
    Platt Williams conveyed these lots to several grantees, and under mesne, conveyances the title to the most westerly lot, fronting upon Clinton avenue, was at the commencement of this action owned by the plaintiff, the lot adjoining upon the east by William Carroll, the lot adjoining William Carroll’s, on the east, by the defendant, and the lot east of and adjoining the defendant’s by George Carroll. These four lots front upon Clinton avenue: In the rear of George Carroll’s lot, and fronting upon Orange street, is the lot of Mr- Mood. Before conveying any of these lots, Platt Williams constructed a drain beneath the surface, commencing upon the most westerly lot, now owned by the plaintiff, and extending easterly across the rear of the lot fronting upon Clinton avenue, now owned by William Carroll and by the defendant, and to and upon the lot next east of the defendant’s lot and turning thence southerly across Flood’s lot to Orange street. This drain was not visible from the surface.
    Platt Williams first conveyed the lot now owned by the defendant. He gave a deed thereof to one Davidson in 1845, but it was not recorded until 1873.
    This deed contained the following clause: “The said party of the second part is to have the use of the drain in the rear of said premises, leading from thence through another lot of the parties of the first part to the public drain in Orange street, but the said party of the second part is hereafter to contribute proportionately to the expense of keeping the drain in repair.”
    The deed to the defendant referred to this deed with respect to the drain.
    Williams _ conveyed the lot now owned by plaintiff to-Charles Vail in 1849. This deed did not in terms refer to the drain, but contains this expression, ‘: together with all and singular the hereditaments and appurtenances, ” etc.
    Vail conveyed the same lot to William Eennie in 1851, the deed containing the following clause, “with the appurtenances and the free and uninterrupted use of the drain in common with the other owners.”
    After several mesne conveyances, the land was conveyed, to the plaintiff in 1860 by deed recorded in 1871, the deed containing the clause, “together with the free and undisturbed use of the drain in common with the other owners, with the appurtenances. ”
    The plaintiff commenced the occupation of the lot under his deed and the use of the drain in 1860, and continued such occupation and use until May, 1885, when the defendant obstructed the use of the drain by cutting it off and plugging it up with clay; upon his own premises. Other facts are stated in the opinion.
    The trial court directed judgment for the plaintiff.
    
      Isaac Lawson, for app’lt; G. L. Stedman, for resp’t.
   Landon, J.

—The deed from Williams to' Griswold, in 1845, of the lot now owned by defendant was the first conveyed by the common grantor of any of the lots affected by the drain. If that deed cut off or excluded the right of drainage from the lot subsequently conveyed by Williams to the plaintiff’s grantor, then no matter what right Williams attempted to convey, he conveyed no right of drainage across plaintiff’s lot, for he had none to sell.

This was an underground drain, and Was not open and visible, and therefore bears no relation to such visible and open watercourses as the common owner of a parcel of land may create upon it and then subdivide it and sell the subdivisions to different owners. In such a case the artificial watercourse, among the several purchasers, is governed by the same rule as a natural watercourse. Lampman v. Milks, 21 N. Y., 505; Roberts v. Roberts, 55 id., 275.

But an underground drain, which is not apparent to the purchaser from the common owner, is not governed by the same rule. Butterworth v. Crawford, 46 N. Y., 349.

The grantee m such a case takes his land according to the terms of his deed; he has the right to suppose that the apparent condition is the real one; and if the deed gives no notice of any right in favor of the lot retained by the grantor upon or across the lot conveyed, the latter lot is freed from the servitude. The grantor cannot both sell his right and keep it. Id.; Outerbridge v. Phelps, 13 Jones & S., 555.

The clause in the deed from Williams to Davidson, referring to a drain, gives no notice that the defendant’s lot is burdened by a servitude in favor of the grantor’s lots on the west; the language is clear and distinct to the effect that the defendant’s lot is benefited by the right to have the use of the drain leading from it through another lot of the grantor to Orange street, but there is not one word of intimation that it is burdened by any servitude in favor of the grantor’s lots on the west." It is significant that the benefit conferred is expressed, and that the servitude claimed is suppressed.

Plaintiff’s grantors obtained no right over the defendant’s lot from any grant of Williams. The plaintiff acquired no right by virtue of the priority of the record' of his deed. The defendant’s lot.has been actually occupied since 1845 by _ William’s grantees and those holding under them; plaintiff was, therefore, put upon inquiry with respect to their title, and hence takes nothing from priority of record.

The evidence does not establish adverse user of the drain by plaintiff sufficient to ripen into a title. Such user, from its nature, would be non-apparent. Hence the adverse user would not begin to run until it was brought to the notice of the defendant or some one of his grantors other than Williams, the common grantor. Ward v. Warren, 82 N. Y., 265, 268; Nicholls v. Wentworth, 100 id., 455; Parker v. Foote, 19 Wend., 309; Hanefin v. Blake, 102 Mass., 297.

No notice is brought to anyone in possession of defendant’s lot until 1874, and that notice was not brought to defendant, but to his brother, who was in charge of the lot. Assuming such notice to have been to the defendant, it is too recent to permit the user ripening into a right.

Defendant’s brother, while in charge of defendant’s lot, collected of plaintiff five dollars for repairs of the drain. Assuming that the defendant did this by the hand of his brother, it did not amount to a conveyance of the drain or of the right to use it. It was evidence of notice of the plaintiff’s user of and from that date; it may have amounted to a revocable license, but it was no grant or estoppel sufficient to pass title to real estate. Wiseman v. Lucksinger, 84 N. Y., 31.

The judgment should be reversed, new trial granted, costs to abide event.

Learned, P. J., and Williams, J., concur.  