
    Jabez Furner, App’lt, v. Otis Seabury, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February 20, 1891.)
    
    1. Easement—Bight to take water from spring—Location.
    Although a grant of an easement to take water from a spring is indefinite as to the location of the pipe, yet where the parties to-it have made a practical location by laying the pipes in a track assented to by them, that'portion of the grant becomes definite by reason of the acts of the parties.
    2. Same—Rights oe grantee of easement.
    Defendant, by a written agreement, in consideration of the plaintiff’s grantor conveying water from a spring on defendant’s land to his meadow by a three-fourths inch pipe, to be laid under ground of sufficient depth to preserve it from injury by frost, etc., conveyed to plaintiff’s grantor all the water that could be conducted through a half-inch pipe to be inserted at" the termination of- the three-fourths inch pipe, and the right to all the water that can run through a half-inch pipe, to be kept in repair at the cost of plaintiff’s grantor. Held, that plaintiff had the right to repair the spring and put it in such condition as to enable him to receive the quantity of water specified, and that defendant had no right to disturb or interfere with such repairs.
    Appeal from a judgment entered on the 2d day of June, 1890, in Madison county, upon a decision made at special term in that county on the merits, dismissing the complaint and dissolving the injunction, which judgment also provided, viz: “That the plaintiff be, and he is hereby directed to fill up the excavation made by him at the spring mentioned and described in said decision, on the 17th day of April, 1890; and to replace in said spring a box similar to the one taken therefrom by him at the time he made said excavation, and to restore said spring to the same condition it was in at the time he commenced making said excavation on the said 17th day of April, 1889.” On the 20th day of August, 1852, the defendant owned a farm in the town of Hamilton, and he has remained the owner and in possession of the same ever since. At that date William Colson owned a farm adjacent to the defendant’s, which has since been acquired by the plaintiff with all the rights and appurtenances thereunto belonging. On the 20th day of August, 1852, said Colson and this defendant executed an instrument under their respective hands and seals which was by them duly acknowledged on that day and recorded on the 10th of January, 1855, which contained the following language: “Witnesseth : Whereas, the said parties at the date of the ensealing and delivery of these presents are respectively seized in fee of and in two contiguous tracts, pieces or parcels of land with the appurtenances in the town of Hamilton, aforesaid, and, whereas, there is a spring of water situated therein and upon the land of the party of the first part; said spring is situated west from the dwelling house of the party of the first part, it being nearly in the center of the farm owned by the party of the first part, which spring is owned by the-party of the first part. How, therefore, this indenture witnesseth, that the party of the second part, for and in consideration and agreement on the part of the first party, that he, the party of the second part, hereby agrees to convey the water from said spring in three-fourths inch lead pipe which is to be laid under ground of sufficient depth to preserve said pipe from injury by frost or other causes. The party of the second part is to carry said water as above described into the meadow of the party of the first part, in consideration of the foregoing agreement on the part of the party of the second part, the party of the first part has hereby granted, bargained, sold, released and confirmed, and by these presents does grant, bargain, sell, release and confirm unto the said party of the second part, his heirs and assigns, all the water of said spring which can be conducted through one-half inch lead pipe; the party of the second part has the right to all the water which can run through said one-half inch pipe, said half-inch pipe to be inserted at the termination of the three-fourths inch pipe as before described, tti be constructed and kept in repair at the cost, charge and expense of the party of the second part; to have and to hold all and singular the same easement and privilege to the said party of the second part, his heirs and assigns forever, as appurtenances belonging to his and their lands as aforesaid.
    “ In witness whereof we have hereunto set our hands and seals, ■ the day and year first above written.
    Otis Seaburt. [l. s.]
    “ Signed, sealed and delivered) Wm. Colson. [l. s.J in presence of— j
    A M. Covet.”
    It was conceded on the trial “ that at the time the above instrument was executed William Colson was the owner of a farm of about 140 acres and was, at that time, in possession thereof, and which was contiguous to the lands of the defendant, and are the lands mentioned in the instrument as belonging to Colson.”
    It was admitted “ that the title to the premises upon which the spring in question is located, being the spring referred to in the above-described instrument, was in the defendant at the time the instrument between him and Colson, dated August 20, 1852, was executed and that the defendant has ever since been the owner of the premises.”
    It was further admitted “ that under the grant from Otis Sea-bury to William Colson, in evidence, William Oolson soon after the date of the grant, to wit, the 20th of August, 1852, laid a three-quarter inch lead pipe, connecting it in the spring mentioned in the grant and running thence to the defendant’s meadow mentioned in the grant, at which point William Colson connected a. one-half inch lead pipe mentioned in the grant, and conveyed water thence to his premises. It was also conceded that on or about the year 1854 the defendant attached a one-half inch lead pipe at a point above and nearer the spring than where Colson’s one-half inch pipe joined to the three-quarter inch pipe, and that the one-half inch pipe thus attached conveyed water to his, the defendant’s, premises until about the year 1886, when he disponneoted it.”
    At the request of the plaintiff it was found “ that plaintiff at no time took or claimed the right to take more than one-half inch of water, and that the pipe at all times, laid and maintained by him, was a one-half inch lead pipe.”
    The trial court refused to find as matter of law “ that defendant, by his grant, rendered his lands subject thereto, and that any interference with plaintiff’s obtaining the one-half inch of water granted was actionable, and defendant was liable to damages therefor; ” and also refused to find “that defendant, by his grant, included everything that was essential to its enjoyment and all the means to attain the thing granted, and all the fruits thereof were granted inclusive with the grant of the thing itself, and that plaintiff was authorized to lower his pipe and dig out the spring to obtain the thing granted (one-half inch water)."
    
      John F. Smith and L. P. Fuess, for app’lt; Mason & Cushman, for resp’t.
   Hardin, P. J.

Plaintiff has succeeded to the rights acquired by William Colson under the grant and easement executed by the defendant on the 20th of August, 1852. He is entitled to all the rights, privileges and enjoyments mentioned in that instrument While the instrument is indefinite in respect to the location of the pipe to be taken from the spring mentioned in the instrument, three-quarters of an inch in diameter, to a certain point in the meadow of defendant, where the union of the pipe with the one-half inch in diameter is to be made to carry the water across the remaining portion of the defendant’s premises to the lands of Colson, yét as the parties made a practical location and usage, laying both the pipes in a track assented to by the parties to the instrument, and enjoyed by them, that portion of the agreement became definite and certain by reason of the acts of the parties in the premises. Tyler v. Cooper, 47 Hun, 94; S. C., 16 N. Y. State Rep., 545.

When the instrument of 1852 was executed, Colson and the defendant owned adjacent farms in the town of Hamilton, as the instrument recites; and the instrument also recites that there is a spring of water situated in and upon the land ’’ of the defendant; and it also recites that “ said spring is situated west from the dwelling house of the party of the first part” The instrument also recites a consideration moving from Colson to the defendant, which was an agreement on the part of Colson binding him “ to convey the water from said spring in f- inch lead pipe, which is to be laid under ground of sufficient depth to preserve said pipe from injury by frost or other causes.” The evidence discloses that the consideration or agreement was fulfilled, as Colson shortly after the agreement was entered into laid a pipe so as to conduct the water from the spring a distance of some twenty rods, having a size of three-quarter inch, and for some eighty rods of one-half inch in diameter, in accordance with his agreement to cany the water “ into the meadow of the ” defendant, which in the instrument is declared in express words to be the consideration for the grant made by the defendant to Colson and his assigns and heirs. The instrument then proceeds to state, viz.: “The party of the first part has hereby granted, bargained, sold, released and confirmed, and by these presents does bargain, sell, release and confirm unto the said party of the second part, his heirs and assigns, all the water of said spring which can be conducted through one-half inch lead pipe; the party of the second part has the right to all the water which can run through said one-lialf inch pipe, said half inch pipe to be inserted at the termination of the three-quarter inch pipe, as before described, to be constructed and kept in repair at the cost, charge and expense of the party of the second part, to have and to hold all and singular the same easement and privilege to the said party of the second part, his heirs and assigns forever, as appurtenances belonging to his and their lands as aforesaid.” The language which we have quoted is definite and certain in many of its parts. (1) It contains words indicative that the quantity of water specified is granted, sold, released and confirmed to the second party to the instrument; (2) It is definite and certain in that it defines the quantity of water covered by the presents, to wit: “ all the water of said spring which can be conducted through one-half inch lead pipe." These latter words indicate the size of the conduit to be used, and they bear significantly the idea that the pipe is to be so laid that it will carry all the water that can be conducted through such a pipa The words “ can be conducted ” may properly receive significance in considering the manner in which the pipe was to be inserted in the spring and was to be laid and used to effectuate the intention of the parties. The subsequent language of the instrument does not limit the phrases with which we have already dealt; it is well chosen to make more clear and definite, if need be, the words already used. It declares in express words, viz.: “The party of the first part has the right to all the water which can be run through said one-half inch pipe; ” following these words are those which indicate where the one-half inch pipe is to be connected to the one that is three-quarter inch; and, according to the testimony, the one-half inch pipe was inserted in the three-quarter inch pipe about twenty rods from the spring.

Again the grant contains the following definite language in respect to the conduit to be used, and the manner of its use, and names the party on whom the burden rests of keeping it in repair■ as in the instrument we find the following language, in respect to the conduit: “ To be constructed and kept in repair at the cost, charge and expense of the party of the second part, to have and to hold all and singular the same easement and privilege to the said party of the second part, his heirs and assigns forever, as appurtenances belonging to his and their lands as aforesaid.” The instrument serves as an express grant and is itself “ the creation of the easement ” and in clear language it expresses the nature and extent From that language in connection with the circumstances existing at the time of making the instrument the nature and extent of the grant is to be determined. 2 Washburn on Beal Estate, 278, 3d ed. If the construction was doubtful the interpretation according to authority should be given favorable to the grantee. Fisk v. Wilber et al., 7 Barb., 395. The language used very clearly casts the burden upon the dominant estate to keep in repair the easement and its incidents. Such is the general rule in respect to easements. Mr. Washburn says, p. 311, 2d vol., viz.: “ As a general proposition, the dominant estate is bound to repair the way it enjoys over the servient estate, though the owner of the latter may, by grant, or reservation or by prescription, be bound to make the necessary repairs in order to its enjoyment.” The important and substantive thing granted is the use of the water, as well as the privilege of conducting it from the mentioned ■spring across the premises of the defendant to the premises now occupied and owned by the plaintiff. It is said by Mr, Wash-burn, vol. 2, p. 319, viz.: “ Property in water in connection with real estate can only be predicated of its use, which serves by its ■enjoyment to give a value to the corporeal hereditament with which its use is applied.” Under the language of the grant now before us we are of the opinion that it was the duty of-the plaintiff to maintain in repair, not only the conduit, but the spring from which he was granted the privilege of conducting so much water as would flow through a lead pipe one-half inch in diameter. Such burden was cast upon the plaintiff by -the exact words of the grant That burden seems to be in accordance with the general rule laid down in respect to enjoyment of easements. It is said by Mr. Washburn, p. 325, of vol. 2, viz.: If one owns the right of a water course in the land of another, it is incumbent upon him to keep the same in repair, unless' the land owner is bound by some covenant to make repairs. And to this <?nd he has the right, as incident to the principal easement, to enter upon the servient estate, and do whatever is necessary to make such repairs, such as.digging up the soil and the like, but doing no unnecessary damage thereby.” For the purpose of enabling the plaintiff to enjoy the use of the water covered by the language of the grant, to obtain the same from the spring mentioned, we ate -of the opinion that he had the right to “ repair ” the spring; to put it in such a condition as to receive therefrom the quantity of water specified in the grant, and thus enable him to enjoy the full benefit of the rights secured by the grant made by the defendant. The tub which was placed, or the box which was inserted in the spring at the place where the water issued, was not the spring; the ■earth which lay adjacent to the tub or the box was not the spring; neither was the rock which was on the westerly side of the aperture the spring. It was said in Magoon v. Harris, 46 Ver., 264, “ The word spring, when applied to water, means the formation of water that naturally gushes out of the earth’s surface. A spring is a place where water issues from the ground by natural forces.” Bloodgood v. Ayers, 108 N. Y., 405; 13 N. Y. State Rep., 663.

If the lowering of the tub or box a few inches, if clearing the earth from under it fifteen inches and letting the tub down, were acts necessary to secure to the plaintiff the use of such water as would flow through the prescribed pipe, then they were acts which were lawful and reasonable; and after they were performed and the site put in situation to yield the required quantity of water the plaintiff had the right to have it remain in that situation. The defendant had not the right to disturb; to interfere or displace the reasonable arrangements made to secure the quantity of water conveyed by the grant The defendant had. undertaken that the owner of the dominant estate should have “ the privilege ” of “ all of the water of said spring which can be conducted through a one-half inch lead pipe,” and in view of the grant the plaintiff has the right to all the water which can run through said one-half inch pipe.” In this connection the language used by the court in Paine v. Chandler, 5 N. Y. Sup., 742; 23 N Y. State Rep., 357, is appropriate: “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 it, 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. * * * 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.”

Attention has been called to Phelps v. Nowlen, 72 N. Y., 39, where it was held: “A party is not liable for the consequences of an act done upon his own land, lawful in itself and which does not infringe upon any lawful rights of another, simply because he was influenced in the doing of it by wrong and malicious mo five; the courts will not inquire into the motives actuating a person in the enforcement of a legal right.' It our construction of the grant already intimated is correct, that case does not aid the re spondent, who, having conferred a right upon the plaintiff, was not at liberty to infringe upon it by preventing by direct acts the plaintiff from the enjoyment of the right secured to him by the grant. Attention has been given to Bliss v, Greeley, 45 N. Y., 671, so much relied upon by the respondent to sustain the judgment before us. In that case that was a limited and specific grant of “the right to dig and stone up a certain spring, and conduct the -water therefrom through the grantor’s land, by a specified pipe, to the grantee’s house, with covenant of warranty.” It was held that such a grant “ does not render the entire premises servient to the easement; and the grantor may lawfully sink another spring, but twenty-seven feet distant, although the effect is to render the first one useless.” In the course of the opinion delivered in that case it is said: “ The grant and the covenants of the grantor are the precise measure of the plaintiff’s right,” and after stating that the grant conferred “the right to' dig out and box this spring, and to put a pipe in it,” the pertinent question is asked by the judge: “Did he thereby covenant that he would not use the rest of his farm in a farmer-like manner ? ” and the burden of the opinion is to answer in the negative, and later on the learned judge says: “This grant prevents the grantor and his assigns from any substantial interference with the spring or the pipe. It does not prevent their improvement or use of the residue of the farpa.”

In Johnstown Cheese Mf’g Co. v. Veghte, 69 N. Y,, 23, the case is referred to in the following language, viz.: “ The case of Bliss v. Greeley, 45 N. Y., 671, is cited on the part of the defendant as in conflict with this judgment; but the facts of that case were very different. In that case there was simply a grant of a right to dig and stone up a certain spring and to conduct the water therefrom through the grantor’s land, with a covenant of warranty and the court held that this did not preclude the grantor from sinking another spring on his land at some distance from the one granted, although the effect of it was to render the latter useless, provided such act was not done unnecessarily or maliciously. In that case the parties were regarded in the same light as adjacent owners, and the rule was applied that the defendant might lawfully dig on her own ground, though the effect was to cut off the water from the plaintiff’s spring by percolation. But there was no grant in that case of any particular supply of water from the spring or from the defendant’s lands. The grant was merely of the right to the spring, and secured the plaintiff no greater rights than such as he would have had if he had owned the land on which it was situated.’’ Thus it clearly appears that that case was unlike the one of Johnstown v. Veghte, supra. The latter case was more like the one now before us. In concluding the opinion it was said: “In. this case the grant was of the use of the water which at the time of the grant was being conducted from the spring, and the intent was to secure the continuance of that supply of water, it being-essential to the operation of the cheese factory conveyed.” In the case in hand, as we have already intimated, the grant was of the use of a specified quantity of water to be taken from a specified spring, and the acts and efforts of the plaintiff were in the direction well calculated to secure to him the water granted; the quantity granted from the site mentioned in the grant from the spring described in the grant.

It is claimed by the learned counsel for the respondent that the burden imposed cannot be made greater than it was at the time of the execution of the conveyance, and he has called our attention to Roberts v. Roberts, 7 Lansing, 55; S. C. affirmed 55 N. Y., 275. We do not understand that this is in conflict with the views already . expressed, for, as we understand it, it is held “ that the burden imposed cannot be made greater than it was at the time of the conveyance.” According to the evidence the plaintiff’s right secured by the grant, and the privileges, of the easement mentioned therein, are valuable and important, and are entitled to the protection of a court of equity. The foregoing views lead to the-conclusion that the result at the special term was erroneous.

Judgment reversed, and a new trial ordered, with costs to abide-the event.

Martin and Merwin, JJ., concur.  