
    Chase Lathrop, Plaintiff, v. George A. Lytle, Defendant.
    
    (Supreme Court, Erie Equity Term,
    December, 1913.)
    Easements—■ reservation should he stated in deed — agreement between adjoining landowners as to use of spring — injunctions — riparian owners — claim of right adverse to owner.
    While a vendor will not be allowed to derogate from Ms grant, all those visible easements which are necessary to the enjoyment of the property will be deemed to pass by implication, but a different rule is applicable against the vendee where the servient portion has been conveyed.
    A reservation should be expressly stated in a deed of conveyance and will be implied only on strict necessity.
    By an indefinite agreement between B and L, adjoining land owners, the latter cleaned out and walled up a spring which though situated on B’s farm flowed by a natural channel across L’s land, and laid a pipe conducting the water to his own barn. Thereafter B conveyed his farm to L who continued in possession of both farms for sixteen years when he conveyed the B farm to his daughter by a deed which contained no express reservation of any right in the spring and about a year after L conveyed his farm to plaintiff. The executors of the said daughter, several years later, conveyed the B farm to defendant. In an action to restrain defendant from interfering with plaintiff’s alleged right to take water from said spring, held:
    That the agreement between B and L with regard to the spring did not prove that plaintiff’s grantors acquired any easement therein, but on the contrary indicated that whatever his rights they rested on license.
    That if an easement had been proved the purchase of the B farm by L would have extinguished any such right by merger of the titles.
    That while it would be a great convenience for plaintiff to continue the use of the spring, yet in view of the facts shown the easement though apparent and continuous was not strictly necessary to the enjoyment of plaintiff’s property.
    That plaintiff as a lower riparian proprietor, not as the owner of an easement to take water from defendant’s spring, had a right to have it cross the division line of the farms at the same point that it had crossed it since the agreement between B and L, but not to go on defendant’s land to repair or for any purpose.
    Where not only the precise terms of a stipulation are unknown but its existence has not been established, it will be disregarded when first called to the attention of the court in the brief of counsel.
    While twenty years’ unexplained use of an easement will be presumed to be under claim of right adverse to the owner, and so create an easement by prescription, the burden is on the owner of the servient estate to show that it was not adverse where such user has been established.
    
      Action for an injunction.
    Charles H. Addington (Reginald F. Penton, of counsel), for plaintiff.
    William B. Reading (H. B. Butterfield, of counsel), for defendant.
    
      
       Received too late for insertion in proper place.—[Repr.
    
   Bissell, J.

This action is brought to obtain an injunction to restrain the defendant from interfering with the plaintiff’s alleged right to take water from a spring on the land of the defendant.

There is no dispute as to the important facts which, briefly stated, are as follows:

In the year 1844, Paul B. Lathrop, father of the plaintiff, came into title and possession of a farm, hereinafter called the Lathrop farm, situated in the town of Elma, county of Erie. In 1869 one John Bragg purchased the farm, hereinafter called the Bragg farm, lying next south and adjoining the Lathrop farm.

The spring, about which this controversy arose, is situated on the Bragg farm about ten rods south of the division line of the two farms. Formerly it flowed by a natural channel in a northerly direction from the Bragg farm and across the Lathrop tract. In 1872, in accordance with some agreement, the exact terms of which are not available, entered into ' between John Bragg and Paul B. Lathrop, the latter cleaned out and walled up the spring and laid a pipe conducting the water to his barn on the Lathrop farm. In May, 1876, John Bragg conveyed his land to Paul B. Lathrop, and the latter became the owner of the tract, including both the Lathrop and Bragg farms, and continued in possession of the same until April 19, 1892. On that date he conveyed the Bragg farm to his daughter, Grace L. Kinney, who remained in possession until her death in 1904. On April 1, 1912, the executors of Grace L. Kinney conveyed the Bragg farm to the defendant in this action. On April 22, 1893, Paul B. Lathrop conveyed the Lathrop farm to his son, Chase Lathrop, the plaintiff in this action.

The contentions of the plaintiff are as follows:

First. The agreement between John Bragg and Paul E. Lathrop created an easement which was confirmed by Lathrop’s purchase of the Bragg farm.

Second. After the said purchase, a quasi easement existed between the two grants of land in favor of the Lathrop farm, and Grace L. Kinney took the Bragg farm subject to that burden.

Third. A new channel has been created which cannot now be disturbed.

Fourth. Prescription.

We will take up the propositions in their order.

The agreement above set forth gave the right to the plaintiff’s grantor to clean out the spring and lay pipe to conduct the water to his farm. It does not appear, however, that there was any grant. The plaintiff in his brief says: The terms oi the agreement * * * referred to in the complaint, rest in obscurity. ’ ’ The mere fact that an agreement existed does not prove that the plaintiff’s grantor acquired an easement. Such a fact, on the contrary, would indicate that whatever rights he had rested upon license. Even if the existence of such easement were proved, however, the purchase of the Bragg farm in 1876 would have extinguished any such right by a merger of the titles.

The second contention of the plaintiff is a more serious one. On the principle that a vendor will not be allowed to derogate from his grant, all those visible easements which are necessary to the enjoyment of the property conveyed will be deemed to pass- by implication. A different rule, however, is applicable against the vendee where the servient portion has been conveyed. A reservation should be expressly stated in the deed. It will be implied only on strict necessity. The distinction between implied grants and implied reservations is clearly stated by Vann, J., in Wells v. Garbutt, 132 N. Y. 430-435: “ Where the owner of two parcels of land conveys one by ah absolute and unqualified deed, we think that an easement will be implied in favor of the land retained by the grantor and against the land conveyed to his grantee, only in case the burden is apparent, continuous and strictly necessary for the enjoyment of the former.”

Some of the cases do not sustain this distinction. Lampman v. Milks, 21 N. Y. 505, cited by the plaintiff, contains perhaps the strongest statement of the other view. In that case, Selden, J., after stating the rule governing implied grants, says: “ This is not a rule for the benefit of purchasers only, but is entirely reciprocal. Hence, if, instead of a benefit conferred, a burden has been imposed upon the portion sold, the purchaser, provided the marks of this burden are open and visible, takes the property with the servitude upon 'it. The parties are presumed to contract in reference to the condition of the property at the time of the sale, and neither has a right, by altering arrangements then openly existing, to change materially the relative value of the respective parts.”

This was entirely dictum, however, as the case of Lampman v. Milks was one of implied grant and not implied reservation, as is the case at bar. No case has been cited, nor have we been able to find any case, of implied grant decided upon the rule laid down in Lampman v. Milks, supra.

There is no claim that the deed to Mrs. Kinney, the defendant’s grantor, contains any express reservation of any right in the spring. If the plaintiff is to succeed in his contention, therefore, it must appear that at the time of the conveyance to Mrs. Kinney her grantor was enjoying easement in the land conveyed that was “ apparent, continuous and strictly necessary.” That the easement was apparent and continuous is unquestioned. We do not think, however, that it meets, the requirement of strict necessity. In discussing what constitutes necessity, Vann, J., in Wells v. Garbutt, supra, says: “While absolute physical necessity need not be shown, as in the case of landlocked premises, or the support of a wall, there must be a reasonable necessity, as distinguished from mere convenience. ’ ’

Also in a recent decision (Hill v. Bernheimer, 78 Misc. Rep. 472), where this question is disposed of on analogous facts, Page, J., says: “ In applying this rule the courts hold that where the property can be put to all of its reasonable uses without imposing any burden on the adjoining premises, there is no necessity. ’ ’

There is no doubt that it would be a great convenience for the plaintiff to continue the use of the spring on the defendant’s property, but we do not think, from the facts before us, it amounts to a necessity. The plaintiff himself testified that there was a spring “ there now about one hundred, or over one hundred, rods from the buildings down grade.” He further testified: “We drawed water from there when the wells at the house gave out.” This would indicate that there is a spring within little over a hundred rods from the plaintiff’s buildings, and that it provides an unfailing supply of water. Its situation is down grade from the buildings, and a windmill or some other form of pumping apparatus would have to be installed which would be a matter of expense and inconvenience, but, nevertheless, not such an insuperable difficulty as would make the use of the defendant’s spring a strict necessity, at least in the absence of any facts before the court concerning the value of the farm and the income derived from it by its occupants. Three wells have been dug on the farm; two of them before the birth of the plaintiff and the other at some time beyond his recollection. The plaintiff is sixty-three years old, so it is apparent that no modern methods have ever been used in an effort to reach a constant supply of water. In fact he testified that no wells had ever been drilled. In this connection it is, perhaps, worthy of note that the wells which were at one time in use appear to have yielded an adequate supply of water in all except dry seasons.

It must be pointed out that no facts relative to the income from the farm have been laid before the court, nor has any estimate of the expense of installing a pumping apparatus, or other methods of arriving at water on the farm of the plaintiff been produced. No intelligent conclusion, therefore, can be reached as to the relation between the income from the farm and the expense of supplying it with water within its own confines.

In view of all these facts we cannot conclude that the easement claimed by the plaintiff is necessary within the meaning of the rule laid down above.

In his third contention, the plaintiff seems to treat the spring as a watercourse. It is scarcely to be doubted that the plaintiff has a right to have the stream cross the division line, at the same point that it has crossed it for the last forty years. These rights doubtless belong to the plaintiff as a lower riparian proprietor, not as the owner of an easement to take water from Ms neighbor’s premises. They do not, of course, incMde any rights to the plaintiff to go upon the land of the defendant to repair, or for any purpose.

Lastly, the plaintiff relies on prescription. The defendant’s predecessor in title, Mrs. Kinney, came into possession of the Bragg farm by deed dated April 19, 1892. On April 10,1912, the following letter was written:

“ Bast Aurora, N. Y., April 10, 1912.
“ Mr. Chase Lathbop,
“Willink, K Y.:
“Dear Sib.— In compliance to an agreement entered into December 1st, 1911, between Mr. Jirek Kinney and with you, as executors of the estate of the late Grace L. Kinney, and myself, title to the farm which adjoins you on the south was transferred to me April 1st, 1912.
“ I find upon the farm a certain concrete structure and a line of pipe placed there, I am informed during your term as tenant.
“ My deed makes no reservation of the land occupied by these structures, and, while I am perfectly willing to give you a lease thereof, business principles require that one be executed or the structures removed.
“ Without any feeling of animus upon my part, you are therefore notified to execute a lease for the land so occupied or remove the structures from the farm within five days.
“ Very truly yours,
“Geo. A. Lytle.”

The “ structures ” referred to in this letter were not removed and have not' been disturbed by either party. The defendant states in his brief that “ performance of the conditions in the said letter was suspended without prejudice to the rights of either party, from time to time, until the summons and complaint herein were served.”1

The period beginning with Mrs. Kinney’s deed, April 19, 1892, and ending with the date of the above letter, April 10, 1912, is nine days short of twenty years. The importance of this stipulation is, therefore, apparent. Apart from this reference in the brief of the defendant, it has not been brought to the attention of the court. Not. only are its precise terms unknown, but its existence has not been established. It is not, therefore, properly before the court and must be disregarded.

The plaintiff has alleged and proved that he and his grantor, since the separation of the two farms by deed to Mrs. Kinney, April 19, 1892, to the beginning of this action by service of a summons July 26, 1912, have continuously maintained a structure over the spring, and a pipe line conducting the water therefrom to the barn on his premises. Use of the easement for twenty years, unexplained, will be presumed to be under claim of right adverse to the owner. This user having been established, it was incumbent on the defendant to show that such user was not adverse to the owners. In the absence of such rebuttal a grant is presumed. Nicholls v. Wentworth, 100 N. Y. 455; Ward v. Warren, 82 id. 265.

On this ground, therefore, judgment must be given for the plaintiff.

Judgment for plaintiff.  