
    Luella S. Root, Resp’t, v. Harriet E. Wadhams, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed November 29, 1887.)
    
    1. Easement—Real property—What is not included under appurtenances—Right to draw water from a spring upon the land OF ANOTHER.
    On the 10th day of March, 1865, the premises now occupied by this-plaintiff were conveyed to a party who subsequently, and in the month of June, 1870, conveyed them to another, who, in turn, conveyed them to this plaintiff in the month of February, 1883. The party first named as the owner of the above premises was also, for thirty years prior to the 5th day of April, 1832, the owner and in possession of the premises now occupied by the defendant. At the latter date he died, and on the 30th day of July, 1882, the defendant took title to these premises from his executors who had the power to sell. In the year 1860 a strip of land separating the lots above mentioned was conveyed to a party from which it passed to-several owners until conveyed to the iiresent owner in the year 1870. At sometime, either in the year 1860 or 1801, the owner of the intervening-premises obtained from the person owning that lot whom is now the defendant’s, for an annual rent, the license to lay a pipe and conduct water from the premises last named to his own. This right was accorded upon the same terms to subsequent owners of that land. Consent was given also, at some time after the month of April 1860, that the owner of the-premises now occupied by the plaintiff should extend the underground pipe so as to carry the surplus of the water not used to his own premises. The premises now owned by the plaintiff were conveyed to her and her grantors by deeds which simply conveyed the land by metes and bounds- “ with the appurtenances thereunto belonging.” Held, that nothing passed by the word appurtenances except such incorporeal easements or rights- or privileges as were strictly necessary and essential to the proper enjoyment of the estate granted, and that a mere convenience was not sufficient to thus create such a right or easement.
    2. Same—What does not constitute.
    
      Held, that the right of the occupiers of the land now owned by the plaintiff to obtain water from the spring on the defendant’s land rested only in a paroi license, and that there were no circumstances through which it was changed to an absolute right based on an easement.
    Appeal by the defendant from a judgment of the general term, fourth department, affirming a judgment in favor of the plaintiff entered upon the decision of the trial judge at circuit without a jury. The facts are sufficiently stated in the opinion.
    
      George W. Ray, for app’lt; A. F. Gladding, for resp’t.
    
      
       Reversing 35 Hun, 57.
    
   Peckham, J.

Among the facts found are the following: On the 10th of March, 1865, one Bradbury took a conveyance of the premises now occupied by the plaintiff, and in June, 1870, he conveyed these premises to one Rowley, who, in February, 1883, conveyed them to the plaintiff. Bradbury had also been the owner and in possession of the premises now occupied by the defendant for thirty years prior to April 5, 1882, at which time he died, and on the 3d of July, 1882, the defendant took title to the these premises from the executors of Bradbury who had power to sell.

Thus from 1865 to 1870 Bradbury was the owner, both of the premises occupied by the plaintiff and of those occupied by the defendant. In 1860, one Aldrich Windsor conveyed to one Beebe a strip of land about fourteen rods wide and situated between the two above mentioned lots, and that lot of land intervening was at all points between the other two lots at least fourteen rods wide. So that at the time when Bradbury was the owner of the premises now owned '■■by the plaintiff and defendant respectively, those lands were ' and at all times for the past thirty years had been entirely disconnected and separated from each other by this intervening lot. In December, 1861, Beebe conveyed the intervening lot to one Frank, who in 1868 conveyed it to one Clark, who in 1870 conveyed it to one Root, who has since that time been and now is the owner thereof.

The title, it will be observed, to the plaintiff’s and defendant’s premises respectively, came to Bradbury from entirely different sources, and while Bradbury parted with the title to the premises now owned and occupied by the plaintiff in June, 1870, he continued to hold and own the premises now occupied by the defendant up to the time of his death in 1882. The premises owned' and occupied by the plaintiff are described in the various conveyances through which she claims title, by metes and bounds, “with the appurtenances thereto belonging,” and no conveyance makes any mention of any further or greater rights, or of any water rights, spring, or the right to take water from any spring, or from the spring hereinafter mentioned.

The title of the defendant was from the executors of Bradbury and by a good and sufficient deed describing the lands and premises by metes and bounds and containing no limitation or reservation, whatever, nor any mention of any right in any other person to any spring or to the water to the same in whole or in part or to the use of the same which might be on the said premises

On the premises owned and occupied by the defendant there is and has been for many years a living spring of water, and sometime about 1860 or 1861, while Beebe was the owner and in possession of the intervening premises-fourteen rods wide, as above-mentioned, he was desirous of obtaining a supply of water from the spring situated on the defendant’s land, then owned by Bradbury, and for that purpose he applied to Bradbury to purchase from him the right to lay a pipe under the ground from the spring to Beebe’s house" upon the intervening land and to take the water from the spring through the same. Bradbury refused to sell or convey to him-any such right, or any right to lay a pipe or take water from the spring, but he gave Beebe a paroi license to lay a pipe from the spring to his house and conduct the water thereto, at the same time informing Beebe that he should make a small charge therefor as the consideration for such privilege in the way of an annual rent. Under this license Beebe put the pipe from the spring underground to his house where it discharged water into an open tub and where the pipe terminated. When the subsequent owners of the same premises then owned by Beebe respectively came into the possession of the same under their purchases, Bradbury informed each of them that he should charge rent for the water from the spring and in this they all acquiesced.

After Beebe put this pipe down, and sometime after April, 1860, one Merchant who was then the owner of the premises now occupied by the plaintiff with the consent of Bradbury, and also with the consent of Beebe, the owner of the intervening land, laid a pipe from his, Merchant’s house, on his premises underground to the tub on the premises of Beebe, and took the surplus water from the tub through the pipe for the use of his house. His right to lay this pipe and take the water," also, rested in a paroi license only. Bradbury never conveyed to Beebe or to any of his successors any right or privilege to take the water from the spring or to lay the pipe under the ground excepting in the manner already stated.

In 1865 Rowley was living on the premises now owned by the plaintiff, as tenant of Bradbury, and with the knowledge and by the direction of Bradbury he connected the pipe running from the spring to Beebe’s house on the intervening premises with the pipe running from the house on the premises on which he was then living and made one continuous line, a small branch pipe being attached to discharge the water into the tub at the Beebe house. Bradbury did not own the pipe leading from the spring to Beebe’s premises, but it was laid by and was owned by Beebe. In June, 18f0, when Bradbury conveyed the premises now owned by the plaintiff to the said Rowley, the water from the spring on'Bradbury’s premises now occupied by the defendant was running through a pipe and discharging into a tub on the premises now owned by the plaintiff in the manner above described, and the learned judge in his findings adds: “ That it was necessary for the use and enjoyment of such premises, and with such water running, the plaintiff’s premises were of much more value than they would be without it.” This finding as to the necessity of the water .for the use and enjoyment of the premises is limited by the further finding in which the learned judge says that the premises could have been supplied with water by means of a well dug on the premises. The defendant also offered to show such well could be dug for twenty-five dollars, whicli would furnish a constant supply of good water, but under objection the evidence was excluded. While Rowley was the owner of the premises now owned by the plaintiff, he informed the defendant, who was about purchasing the premises now owned by her from the executors of Bradbury, that no person other than the intended grantors owned the said spring or any right in or to the waters of the same, or the right to take water from it, and she relied on such statement in making the purchase. Subsequently the defendant disconnected the pipe from the spring on her premises and this action was brought by the plaintiff to enjoin the defendant from such action and to enforce her right to a supply of water from the said spring.

Upon the facts the court granted the injunction and gave judgment for the plaintiff.

She bases her right of action in this case upon two propositions: First, that the right to the use of this water passed to her by the deeds from Bradbury to Rowley and from Rowley to her, as an appurtenance to the premises; and, second, that under the circumstances there was an implied easement consisting in the right to take water through or over the lands now owned by the defendant, so long as the parties owning intervening lands did not object to its passage across such lands in order to reach the lands now owned by the plaintiff.

We think no such right passed by the several conveyances to plaintiff and her grantors, which simply conveyed the land by metes and bounds, “with the appurtenances thereunto belonging.” Nothing passes by the word appurtenances except such incorporeal easements or rights or privileges as are strictly necessary and essential to the proper enjoyment of the estate granted. A mere convenience is not sufficient to thus create such a right or easement. See Ogden v. Jennings, 62 N. Y., 526; Green v. Collins, 86 id., 246; Griffiths v. Morrison, 106 id., 165; 8 N. Y. State Rep., 585.

Nor do we think that under the circumstances there was any implied easement which passed to the grantees under the deed from Bradbury.

It must be remembered that the two premises, although at one time both owned by Bradbury, were essentially two distinct plots of ground, and the title to each vested in Bradbury from a different source. Between the two lots of ground was this intervening strip of fourteen rods in width, substantially and physically separating the premises and making two separate and distinct lots. It must also be remembered that the spring existing on the land now owned by the defendant was owned by Bradbury long anterior to the time when he became the owner of the premises now owned by the plaintiff, and that before that time,, and while the intervening lot was owned by one Beebe,, permission had been obtained by Beebe from Bradbury to-take the waters from the spring across Bradbury’s land to the lands now owned and occupied by Beebe, and that Bradbury had distinctly refused to grant him any permanent right, having given him simply a paroi license to-take it during his pleasure only, and in consideration of a. small annual rent.

This state of things existed at the time Merchant, who-occupied at one time the land now owned by the plaintiff,, was permitted to take the surplus water from the intervening lots and conduct it to his own premises, and that was-done by the mere paroi license of Beebe and Bradbury. The same -state of things existed at the time Rowley became Merchant’s successor in the possession of the-premises now occupied by the plaintiff in the character of tenant to Bradbury and subsequently as his grantee, Rowley at all times understood perfectly well the terms and conditions upon which his right existed to conduct the water over Bradbury’s premises to his own, and he understood that it rested simply upon the paroi license of Bradbury. All the facts show conclusively that Bradbury understood his own rights in the premises, and never intended that any right to obtain the water from the spring on the-premises now occupied by the defendant should accrue to the owners or occupiers either of the intervening lot or of the premises now occupied by the plaintiff.

We see nothing in the facts found by the learned trial judge which would change the right to use the water from a right resting simply in a paroi license to an absolute right based upon an easement implied in a grant of the premises-to plaintiff as her grantors.

We do not think the case comes within the principle of those cases cited by the counsel for the' plaintiff, of which Lampman v. Milks (21 N. Y., 505), and Curtiss v. Ayrault (47 N. Y., 73), are examples.

In Lampman v. Milks, the original owner of the land across which a stream flowed, diverted the stream through an artificial channel so as to relieve a portion of the land formerly overflowed by the stream, and that portion of the-land he afterwards conveyed to a third party. The court-held that neither he nor his grantees of the residue of the-land could return the stream to its ancient bed to the damage of the first grantee.

That is an entirely different case from the one at bar.. The land which the owner conveyed, after he had diverted the channel of the stream, would have become worthless by being overflowed if he or his grantees of the remaining portion had been permitted to return the stream to its original channel. The court held that under such circumstances the owner in conveying the premises thus relieved from overflow, charged the remaining portion of the premises with the servitude of submitting to the stream running through their lands. In the course of the opinion in that case the learned judge distinguished between those easements which are continuous, that is self-perpetuating, indepedent of human intervention, and those which are termed discontinuous easements, the enjoyment of which can be had only by the interference of man, such as rights of way or a right to draw water. In regard to such latter kind of easements, upon a severance of tenements by the owner they only pass which are absolutely necessary to the enjoyment of the property conveyed.

In Curtiss v. Ayrault, the same general doctrine is held. In that case it appeared that a marsh had been drained by the owner of the whole tract by digging a ditch which carried the water to other portions of the tract where it made a permanent channel m which the water, gathered in the marsh flowed in a continuous stream thus mutually benefiting the lands drained and the lands through which a supply of good water was thereby conveyed. The owner of the property while these reciprocal benefits and burdens were in existence and apparent, divided the tract into parcels, and conveyed the parcels to different grantees who contracted with reference to the then open and apparent condition of the land and it was held that such condition was essential to the enjoyment of all the lands, and especially to that portion which by the digging of the ditch had been drained and made good, available land.

To the same effect is Adams v. Conover (87 N. Y., 422), although that case arose under an alleged breach of covenant of warranty and of quiet enjoyment contained in the deed. It was contended that the covenant was broken because, at the time of the conveyance of the premises, which consisted of a mill, a dam and a pond, which furnished water-power for the mill, they were in a certain visible condition in regard to the height of the dam, and yet a right existed in and was subsequently exercised by a third party, to compel the lowering of such dam, the effect being to substantially ruin the premises for use as a water-power, which was the sole consideration for their purchase and their chief value. The court held that the conveyance by metes and bounds, which included the dam and water-power, conveyed the dam as it then stood at its existing and apparent height. The court said that the power of the water thus created and stored was the essential and material element of value in the mill property, which was the subject of the conveyance, and, therefore, there was a breach of the covenant of warranty and of quiet enjoyment when it was shown that there was a superior right in a third person to demand a reduction of the height of the dam and the lessening of the head of water thereby;, and it was so determined because of the fact that substantially the whole value of the property depended upon continuing the height of the dam as it existed, openly and apparently, at the time of the conveyance.

We have carefully looked through the cases cited in the opinion of the learned justice who wrote at general term, but we can find nothing in them that militates against the views here expressed.

Upon all the facts in this case we are of opinion that there - was nothing but a mere paroi license proved from the grantor of the defendant, and that the right to take or convey water from the defendant’s premises did not pass to the plaintiff by the use of the word appurtenances in any of the deeds to her or her grantors, nor did such a right pass as an easement by implication.

The judgment of the general term and of the circuit should, therefore, be reversed and a new trial granted, costs to abide the event.

All concur, except Raparlo, J., absent.  