
    Abram Nellis, Resp’t, v. John G. Munson et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed February 28,1888.)
    
    1. Easement—Right to draw water through pipes over the land of ANOTHER IS AN ESTATE IN LAND.
    An easement to draw water through pipes over the land of another for the benefit of a dominant tenement is an interest in lands existing independent of the fee of the land over which it is exercised, and is an estate in land possessed in fee by the owner of the dominant estate.
    2. Same—Is a freehold estate within 3 Rev. Stat. (7th ed.), 2195, § 137.
    It is an incorporeal hereditament consisting of an estate of inheritance» transferable according to the statute of descents, and comes within the meaning of the terms, fee or freehold estate, as used in 3 Revised Matutes (7th ed.), 2195, § 137, and requires for its conveyance a deed executed in the manner prescribed in the said statute, to affect the right of á subsequent purchaser.
    6. Same—Requisites of.
    The principal requisites of easements are that they be imposed upon ' corporeal real property; that they be for the benefit of corporeal, real " property, and that there be two distinct estates, the dominant and the servient.
    4. Same—Terms purchaser or incumbrancer defined.
    The terms', “ purchaser or' incumbrancer,” as used in said section, do iiot mean only those persons, who acquire their rights in good faith, without notice pi prior conveyances »
    Appeal from a judgment of the supreme court, general term, third department, affirming a judgment in favor of the plaintiff, entered upon the trial of the action by the court, without a jury.
    Mrs. Swan being in 186J, owner of certain land, by a sealed agreement with the plaintiff, conveyed to him the right to lay down a water pipe over the same. The agreement was not then witnessed or acknowledged, but it was acknowledged in March, 1868. After making this agreement, Mrs. Swan, in 186J, by an agreement, duly witnessed, contracted with one, Snell, to sell him this land, excepting therein the privilege given to the plaintiff. In November, 1867, she conveyed to Snell the land by a warranty deed, without mentioning therein the easement of plaintiff. Snell took possession under his contract before he received the deed, and, while he owned the land, the plaintiff put in a water pipe, according to his easement. In January, 1869, Snell and wife conveyed the land to the defendant by warranty deed containing no mention of the easement. But the pipe had been laid and the defendant knew of that fact, and of plaintiff’s easement, before he purchased. This action is brought to restrain defendant’s interference with the pipe, and the question is, whether the plaintiff has the easement which he claims.
    
      Esek Cowen, for app’lt; E. Countryman, for resp’t.
    
      
       Reversing 24 Hun, 575.
    
   Ruger, Ch. J.

The main question involved in this case is whether the right to bring water in a pipe across the lands of one for the benefit of another constitutes an interest “in fee or a freehold estate” in such a sense that, as against a subsequent purchaser, its creation requires a conveyance executed according to the forms and conditions prescribed by section 137, 3 Revised Statutes (7th ed., 2195).

This section reads as follows: “Every grant in fee or of a freehold estate shall be subscribed and sealed by the person from whom the estate or interest is intended to pass, or his lawful agent. If not duly acknowledged previous to its delivery, * * * its execution and delivery shall be attested by at least one witness; or if not so attested, it shall not take effect as against a purchaser or incumbrancer until so acknowledged.”

In order to reach the material question in the case it is well to dispose of a suggestion that has sometimes been made that the terms “purchaser or incumbrancer,” as used in this section, mean only those persons who acquire their rights in good faith without notice of prior conveyances.

The case of Chamberlain v. Spargur (86 N. Y., 603) is decisive against this view, and the circumstance that the subsequent grantors of the premises in question had notice of the plaintiff’s prior .conveyance may be laid out of view as not affecting the point in dispute.

Returning to the serious question in the case, we think a reference to other provisions of the statute in the same chapter with that referred to, will exhibit the scope and meaning of the terms “in fee or of a freehold estate,” as used in the section quoted, beyond the possibility of misconception.

The section is contained in chapter 1, part 2, of the Revised Statutes (3d ed., 2175), entitled “Of the Nature and Qualities of Estates in Real Property, and the Alienation Thereof.”

The first, second and fifth sections of title 2, article 1, of this chapter read as follows:

“Sec. 1. Estates in lands are divided into estates of inheritance, estates for life, estates for years, and estates at will and by sufferance.

“Sec. 2. Every estate of inheritance, notwithstanding the abolition of tenures, shall continue to be termed a fee simple or fee, etc.

“Sec. o. Estates of inheritance and for life shall continue to be denominated estates of freehold, estates for years shall be chattels real, and estates at will or by sufferance shall be chattel interests, etc.”

It is further provided that the terms “real estate” and “lands,” as used in this chapter, shall be construed as coextensive in meaning with “lands, tenements and hereditaments.” Section 10, tit. 5, chap. 1, 3 R. S. (7th ed.), 2205.

It is quite obvious from the plain - reading of the statute, that hereditaments are included in the terms “estates of inheritance,” and that such estates may be held in fee and are capable of having the same interest and estate created with respect to them as may or can pertain to any real estate. They are created, granted, assigned, extinguished and inherited in the same manner and by the same forms as other real property, and are distinguished therefrom mainly by the fact that they are incorporeal instead of being corporeal property. Thus it is said by elementary] writers, that the word hereditaments is more extensive in its signification than land or tenements,, signifies anything capable of being inherited, and as applied to realty, is divided into .corporeal and incorporeal. Bouvier’s Institutes, §§ 1595, 1596. Incorporeal real property is defined to be a right issuing out of or annexed to a thing corporeal, and .consists of the right to have some part only of the produce or benefit of the corporeal property, or to exercise a right or have an easement or privilege or advantage over or out of it. Bouvier’s Institutes, § 1597. The principal requisites of easements are, that they be imposed upon corporeal real property; that they be for the benefit of corporeal real property, and that there be two distinct estates, the dominant and the servient. Bouvier’s Institutes, § 1602.

The right of drainage or jus acqceductus is said to be, an easement which gives the owner of land the right to bring-down water through or from the land of another, either from its source or from any other place. Bouvier’s Insti tutes. § 1625. This right cannot exist independent of its connection with another tenement, and therefore cannot be

aliened or conveyed except by a conveyance as an appurtenance of the dominant estate. It can be created only by grant or prescription and partakes in this, as well as other respects, of the characteristics of real estate. Bouvier’s Institutes, § 1025; Cronkhite v. Cronkhite, 94 N. Y., 323; Addison on Torts, 130; 3 R. S., (7th ed.), 2326. It can be inherited, and is therefore, classified by all elementary writers as an hereditament. Its owner has neither the general property in nor seizure of the servient estate, but by holding a fee in the estate to which such easement is appurtenant he has an estate of inheritance in the easement. Washburn on Easements, 3d ed., 15.

An easement in the strict sense of the word “is a liberty, privilege or advantage in land without profit, existing distinct, from an ownership of the soil,” and therefore rights to enter upon the lands of another for the purpose of growing crops, or cutting grass, wood or timber, or to derive a profit from the product of the land, or, as it is called, the right of profit a prendre, are not considered easements in the strict sense of the term, although they are generally treated under the same heads and governed by the same rules. Post v. Pearsall, 22 Wend., 432; Huntington v. Asher, 96 N. Y., 604; Bouvier’s Institutes, §

It is, however, quite unnecessary to enter into a consideration of the various kinds of easements and the distinctions existing between them, for, whatever these may be, they are all alike when attached to a dominant estate classified by .elementary writers as incorporeal heredita.ments, and described with the estate to which they are attached as land and by the express terms of the statute may be held and enjoyed in fee, and are freehold estates. Pitkin v. Long Island R. R. Co., 2 Barb. Chy., 230; Washburn on Easements, 3 to 14; Senhouse v. Christian, 1 Term R., 560; Post v. Pearsall, 22 Wend., 425; Child v. Chappell, 9 N. Y., 254.

The respondent seems to concede that .the right of profit a prendre requires a conveyance attended by the same formalities as are prescribed by the section in question, and we are of the opinion .that such a right is not distinguishable from that of easements generally. Huntington v. Asher, supra.

Washburn, in discussing the distinction between an easement and a license, says that “ an easement always implies an interest in the land, in or over which it is to be enjoyed Á license carries no such interest. The interest of an easement may be a freehold, or a chattel one according to its duration; an easement must be an interest in or over the §oil. It lies .not. in. livery, but in a grant, and a freehold interest in it cannot be created or passed otherwise than by-deed.” Washburn on Easements, 6, 7.

And, further, he says, “the ownership of an easement and that of the fee in the same estate are in different persons. Nor does the interest' of the one affect that of the other, so but that each may have his proper remedy for an injury to his right independent of the other.”

It seefns to follow necessarily from the authorities that an easement to draw water through pipes over the land of another for the benefit of a dominant tenement, is an interest in lands existing independent of the fee of the land over which it is exercised, and is an estate in land possessed in fee by the owner of the dominant estate. It is an incorporeal hereditament consisting of an estate of inheritance transferable according to the statute of descents, and comes directly within the meaning of the terms, “fee or freehold estate,” as used in section 137i That it was the intention of the grantor of the easement in question to convey a fee therein is manifest from the language of the instrument, as it grants and conveys the. interest described to the grantee and “his heirs and assigns,” and is made obligatory upon the grantor and “her heirs and assigns.” 3 R. S. (7th ed.), 2205, § 1, tit. 5.

We are, therefore, of the opinion that the easement conveyed was an estate in fee and required for its conveyance a deed executed in the' manner prescribed in the statute to affect the right of a subsequent purchaser. We are much impressed with the apparent equities of the plaintiff’s claim in view of the fact that the subsequent grantees of the -servient estáte took title with notice .of the easement claimed by the plaintiff, but we see no way of escaping the effect of the plain words of the statute. It was suggested in the opinion below that the plaintiff could probably establish a right in equity to a conveyance under an implied agreement on the part of Mrs. Swan and her grantees, taking with notice to convey the easement in question, and that the judgment could be sustained on that theory.

We are, however, of the opinion that-it was error for the general term to uphold the judgment upon that ground. Most of the evidence tending to support this theory was admitted by the trial court against the objection by defendant that the facts were not-material under the issue formed by the pleadings, and this objection was clearly well taken. It is quite apparent that such a view of the case involves very serious questions as to the force and effect of the deeds given, and the covenants contained in them, by Mrs. Swan to Snell and from Snell to the defendant. These questions cannot be properly and finally determined .without the presence of other parties in the litigation and proper aliegations in the complaint to cover them. The reservation of an easement in the contract between Mrs. Swan and Snell had no effect as establishing title in the plaintiff, as such reservation could not enure to the benefit of a stranger, and operates in this case only as evidence of Snell’s knowledge of the existence of the alleged easement. It was competent for the parties to that agreement to waive performance as to any provision contained therein, without the assent of the plaintiff; and the subsequent delivery of a warranty deed from Swan to Snell affords some evidence of such waiver.

The acts of acquiescence on the part of Snell and Munson in the exercise by the plaintiff of rights over the granted premises, in laying and repairing his water pipes, may well have taken place under the assumption on the part of Snell and Munson that the plaintiff possessed a legal title to the alleged easement. They had no knowledge of the invalidity of the plaintiff’s title and no legal right or agreement therein, so far as we can observe, can be based upon their omission to object to the acts of the plaintiff.

It would be quite improper to sustain the judgment here upon a theory which was not set up in the complaint or tried and determined by the trial court. The case was tried upon the theory, as presented by the complaint, of a legal right, on the part of the plaintiff, to the easement in question, and the only evidence af such right presented by the plaintiff was the deed from Mrs. Swan to him, now alleged by the defendant to be invalid as to subsequent .purchasers. The deed from Mrs. Swan to Snell is, so long as it stands unreformed, an apparent bar to the claim made by the plaintiff, and the court would be wholly unwarranted in reforming such deed without the presence, in the litigation, of parties who claimed -rights under it.

We do not wish to be understood as intimating that the plaintiff possesses equitable rights wdiich could be enforced in any form of action, but we are of the opinion that such an issue should not be tried without appropriate pleadings setting forth the nature of the right claimed, and an opportunity to meet it by evidence on the part of the defendant.

We think the judgment of the general and special terms should be reversed and a new trial ordered, with costs to abide the event.

All concur, except Andrews, J., not voting.  