
    Wells Paine, Pl’ff, v. Jeremiah W. Chandler, Def’t.
    
      (Supreme Court, Equity Term, Fifth Department,
    
    
      Filed April 12, 1889.)
    
    1. Easement—When created on sale of one of two tenements.
    Defendant, the owner of two contiguous farms, conveyed one by warranty deed to plaintiff. At the time of such conveyance, and for many years prior thereto, there had existed a valuable spring of water on the farm retained by defendant, the waters of which were conducted by means of pipes to the barn-yard of plaintiff’s farm. The use of the water was essential to the full enjoyment of the latter farm, upon which there was no other adequate supply of water. Held, that defendant, when he severed his tenements, charged the portion retained by him with the servitude of a stream of water, conducted by artificial means from the spring in question to the plaintiff’s barn-yard.
    2. Same—Equivalent to covenant.
    A grant executed under circumstances which implied the right to a permanent use of the waters of a spring is equivalent to a covenant, and any interference with the water, either directly or indirectly, is a violation of such covenant.
    3. Same—Grantor cannot maliciously destroy same.
    A person who confers a right or privilege upon another cannot maliciously destroy such right, either by direct or indirect interference with the same
    In March, 1886, the defendant was the owner of two contiguous tracts or parcels of land situate in the town of Nunda, Livingston county, N. Y.; one of which tracts, consisting of about ninety-two acres, was known as the “Grines” farm, and the other, containing about eighty-nine acres, was designated as the “Paine” farm.
    On the 9th day of April, 1886, the defendant executed and delivered to the plaintiff a warranty deed of the “Paine” farm, and he has ever since remained the owner and in the occupancy of the premises thus conveyed. At the time of such conveyance, and for many years prior thereto, there had existed a valuable spring of water upon the “Grines” farm, which had been walled up in such a manner as to retain the water, and the same was conducted by means of wooden logs and iron pipes to the barn-yard on the “ Paine ” premises, where it was used for domestic purposes, watering stock, etc.
    Defendant was well aware of the existence of this spring, and that its waters were conducted to the last-mentioned premises and used in the manner specified, and also that their use was essential to the full enjoyment of the “Paine” farm, upon which there was no other adequate supply of water for the use of the stock ordinarily kept there, except such as was obtained, at considerable inconvenience, from a creek which ran through a gully some sixty or seventy rods from the barns where the stock was kept.
    Plaintiff was in the occupation of the “Paine” farm, and in the use and enjoyment of the water from the spring in question at the time of his purchase from the defendant.
    In the month of May, 1886, the defendant stopped up the pipe through which the water was conducted on to plaintiff’s premises, at a point near the dwelling house upon the 1 1 Grines ” farm, but such obstruction was removed immediately upon a demand being made to that effect by the plaintiff.
    Thereafter, and in the month of August, 1887, defendant dug a well upon the “ Grines ” premises about twenty feet south of the spring, and in December following, he dug a ditch parallel with the pipes leading from the spring, in such a manner as to intercept and cut off the water from the spring and conduct it into the well. By means of this diversion, the water in the spring was diminished to such an extent that it did not reach the mouth of the pipe which had formerly conducted it on to plaintiff’s premises, and plaintiff has ever since been wholly deprived of its use.
    The excavations made by defendant are claimed to have been necessary for. the purpose of supplying his house with water from this spring, but the evidence establishes very dearly that there was an abundance of good water available for this purpose without interfering with that in the spring, and that such interference proceeded from a wanton and malicious motivé.
    There was no mention made off this spring in the deed to plaintiff, either by way of grant or reservation, but such deed contained the ordinary words incidental to a conveyance, viz., ‘‘together with all and singular the hereditaments and appurtenances thereto belonging or in any wise appertaining,” and the usual covenant of warranty.
    This action is brought to compel defendant to restore the water to the spring in question, and to restrain him from any further interference therewith. °
    
      F. C. Peck and E. A. Nash, for pl’ff; D. S. Robinson and C. J. Bissell, for def’t.
   Adams, J.

The facts of the case seem to bring it squarely within the well-settled principle that where one of two tenements, or a portion of an entire estate, is sold, the purchaser takes the tenement or portion sold, with all the benefits and burdens which manifestly appear, at the time of the sale, to belong to it, as between it and the property which the vendor retains. Nicholas v. Chamberlain, 2 Cro. Jac., 121; Robbins v. Barnes, Hob., 131; Lampman v. Milks, 21 N. Y., 505; Curtiss v. Ayrault, 47 id., 73; Rogers v. Sinsheimer. 50 id., 646; Roberts v. Roberts, 55 id., 275; Simmons v. Cloonan, 81 id., 557.

It is insisted, however, that this rule has been somewhat modified by the later decisions, and the attention of the court is directed to the cases of Griffiths v. Morrison (106 N. Y., 165; 8 N. Y. State Pep., 585); and Root v. Wadhams (107 N. Y., 384; 12 N. Y. State Pep., 30), as authorities for this contention. It is true that in these cases, the court distinguishes between continuous and discontinuous easements, and holds that in regard to the latter, only such as are absolutely necessary to the enjoyment of the estate pass upon a severance of tenants by the owner, but this is really nothing more than a reiteration of the doctrine of Lampman v. Milks, which in turn is founded upon a provision of the French Code as well as the common law cases, and the analogy between these several authorities seems to suggest a common origin. The substance of the distinction between the two classes of easements is stated in the opinion of Selden, J., in Lampman v. Milks, to be that such as are not dependent for their enjoyment upon any actual interference by man are continuous in their nature, while those * * * the enjoyment of which cannot be had, save by the interference of man * * * are discontinuous and pass upon a severance of tenements by the owner only when absolutely necessary to the enjoyment of the property conveyed.

A very recent decision by the supreme court of New Jersey defines the rule applicable to easements which pass by implication upon a severance of tenements, in a very clear and comprehensive manner, and states that three things are essential to their existence: First, a separation of the title; Second, that before separation takes place, the use which gives rise to the easement shall have been so long continued and so obvious or manifest as to show that it was meant to be permanent, and, third, that the easement shall be necessary to the beneficial enjoyment of the land granted or retained, but that the degree of necessity is such merely as renders the easement essential to the convenient and comfortable enjoyment of the property as it. existed when the severance was made. Kelly v. Dunning, 10 Atl. Rep., 276.

It has, likewise, been recently held by the court of appeals in this state, that the element of necessity is supplied if it appears that the property conveyed cannot be fully enjoyed without subjecting the servient estate to the easement. Simmons et al. v. Cloonan (supra).

All the requirements thus held to be essential to the existence of a servitude are found to be present in the case under consideration. The title, which was formerly in the defendant, has been separated; before such separation took place, the use of the waters from the spring upon the Grines farm, by means of pipes below the surface of the soil, was so obvious and constant as to show that it was meant to be permanent, and the easement thus created, if not absolutely necessary, is certainly essential to the full beneficial enjoyment of the land granted. It follows, therefore, that whether it comes within the definition 'of a continuous or discontinuous easement, the defendant, when he severed his tenements, charged the portion retained by him with the servitude of a stream of water conducted by artificial means from the spring in question to the plaintiff’s barnyard.

It is contended, however, by the learned counsel for the . defendant, that even if the plaintiff’s deed did convey a right to the use of the waters so conducted from the spring upon the servient tenement, the defendant cannot be compelled to furnish the relief sought by this action, inasmuch as he has not interfered directly with the water in the spring or pipes; but that whatever interference there has been, was occasioned by excavations upon bis own' land in the vicinity of the spring which he had the right to make, although they did result in diminishing the water in the spring, to plaintiff’s discomfort and injury, and in support of this contention the case of Bliss v. Greeley (45 N. Y., 671) is cited. It is not difficult to discover a distinction between the doctrine of that case and this, I think, and it is the same as is pointed out by Rapallo, J., in his opinion in the case of Johnstown Cheese Mfg. Co. v. Veghte (69 N. Y., 10). In the case relied upon by defendant, the parties were regarded in the same light as adjacent owners, and the rule was applied which permits one party to dig upon his own land although the effect of his digging is to cut off the water from a spring upon adjacent land by means of percolation. Furthermore, the grant was merely of the right to the spring, and secured no greater privilege than would have accrued to the grantee if he had been the owner of the land, on which it was situated. Here, however, there was a grant under circumstances which implied the right to a permanent use of the water.which, at the time of the grant, was being conducted from the spring on to plaintiff’s premises. This implication was really equivalent to a covenant, in my opinion, and if so, any interference with the water, whether directly or indirectly, was a violation of such covevant, and therefore unwarranted. Johnstown Cheese Mfg. Co. v. Veghte, supra; Lasala v. Holbrook, 4 Paige, 169.

If, however, this may be regarded as an extreme construction of the principle which governs the creation and maintenance of a servitude, there is another answer to the defendant’s claim of rightful interference with the easement in question, which is, that such interference proceeded from a malicious motive, and was designed to accomplish the precise result attained. But, it is insisted, the defendant Was only asserting his rights, and the courts will not inquire into the motives actuating a person in the enforcement of a legal right. As an abstract statement, this proposition is doubtless correct. Phelps v. Nowlen, 72 N. Y., 39; Kiff v. Youmans, 86 id., 324.

It has no application, however, to the case in hand, as will readily be observed by a careful reading of the opinion in the former of the cases above cited, by which it appears that the act complained of was the digging of a ditch by the defendant through an embankment surrounding a spring upon his own land, which embankment had theretofore retained the water so as to fill a well upon the plaintiff’s land, and the digging of the ditch diverted the water in such manner as to destroy this well.

The plaintiff had no right, by prescription or otherwise, to the water from the spring, and its use was enjoyed by the mere permission or license of the defendant, which he could revoke at his pleasure. The digging of the ditch was, therefore, simply an assertion of his legal right to revoke the license, and it consequently was a matter of no moment what motive actuated him, for, as is distinctly stated by the court, he interfered wnth no right enjoyed by the plaintiff. In the case under consideration, the facts are essentially different. The plaintiff had a legal right to the use of the water from the spring upon defendant’s land, and this right had been conferred upon him by the defendant. Such being the case, while it may not have deprived the defendant of the right to the enjoyment of his premises, and to the underground waters upon them, it nevertheless did require of him that he should exercise that right in good faith, and with due regard to the rights of the plaintiff. The distinction here made is otie which is recognized in many of the cases in the books, and it has been expressly held that- while an act, legal in itself, which violates no right of another, cannot be made actionable by reason of the motive which induced it, yet where it does violate some right, the old maxim, sic utere tua ut alienum non laedas, applies. Chasemore v. Richards, 7 House of Lords Cases, 387; Chatfield v. Wilson, 28 Vt., 49; Bliss v. Greeley, (supra).

No case can be found which holds that a person may confer a right or privilege upon another, and then maliciously destroy such right, either by direct or indirect interference with the same, and this court does not propose to be the pioneer of any such inequitable doctrine.  