
    
      Henry Ferguson vs. L. J. Witsell.
    
    In case, for obstructing a canal, plaintiff declared that he was seized, and possessed of the tract of land to which the right of drainage, through the canal, was appurtenant : at the trial he proved no title but only his possession: held, that the proof was sufficient, — that plaintiff’s possession was presumptive evidence of such title as would sustain his action.
    ■Unity of title will, in general, extinguish an easement, but where the easement is essential, and the estate cannot be enjoyed without it, the easement of necessity is appurtenant to the estate, and will pass with it to a purchaser when the title is severed.
    
      
      Before Frost, J. at Colleton, Spring Term, 1851.
    The report of his Honor, the presiding Judge, is as follows :
    
      “ The declaration sets out that the plaintiff is seized and possessed of a certain plantation ; and that he and those under whom he claims, have immemorially used a certain canal, partly on the land of the plaintiff, and partly on the land of the defendant; and that the defendant had unlawfully obstructed the said canal, used to vent the water from the plaintiff’s land, to his damage, &c.
    “ The plantation of the plaintiff comprised the lower portion of an inland swamp. Above the plantation of the plaintiff, Burrill Saunders and Edward Glover own rice lands on the same swamp. The road from Savannah to Charleston crosses the swamp, at or near the dividing line of the lands of the plaintiff and Saunders. There is a bridge in the road causeway, over the channel of the swamp, through which the water from Saunders’s and Glover’s lands is vented into the land of the plaintiff. Along the side of the causeway is a canal extending across the swamp; at one end venting into a spring ditch or canal, and at the other end into the canal in dispute. The channel or natural course for the water is obstructed below the causeway, in the land of the plaintiff, by banks which were made for the culture of the land. Below the land of the plaintiff the defendant owns a few acres of swamp on the creek, into which the swamp is vented, and the canal passes through that piece of land. The defendant obstructed the canal in this part, and a long way above, nearly to Tupelo bank. The plaintiff’s plantation had been owned and planted by Wilmot Gibbes from 1804 to 1843, when it was purchased by Sampson W. Leith.— The defendant’s plantation (Auckland) had been owned by Cotesworth Pinckney before 1843, when it also was purchased by Leith. Leith planted the Gibbes tract two years, and then died in 1845. After his death, Auckland was conveyed by the Commissioner in Equity to the defendant. The plaintiff was in possession of the Gibbes land, but did not produce any title. There was evidence that the canal, from the creek to the Savannah road, had existed and been used more than fifty years ago. Gibbes in 1837 and ’38 did not plant beyond Tupelo bank, which is some distance below the road. The water from above then flowed through the upper fields until it reached Tupelo bank, when it was drawn by a canal above and along the bank into the canal in dispute. The disputed canal is along the dividing line between Auckland and the Gibbes tract, following the edge of the high land. The earth from .the canal was thrown on Gibbes’s land, forming a bank between the canal and the swamp. There was also evidence that the natural channel for the water of the swamp had been filled up by the banks made across it for the cultivation of the land ; and that the canal was necessary to the cultivation of the plaintiff’s land, and of the lands above the road. Thirty-five or forty years ago the canal was open below the road, and above through the lands of Saunders and Glover. At that time, one or two squares next the road were not planted ; but before and until sixteen years ago the canal was kept open. That the earth was thrown on the Gibbes tract, was, in the opinion of some witnesses, evidence that the canal was the line. It was of no benefit nor any disadvantage to the Auckland tract
    
      “ The defendant moved for a nonsuit, on the ground that the plaintiff had not proved he was seized of the Gibbes tract; but the motion was refused, because there was evidence that Gibbes had, by prescription, acquired the right to the use of the canal, as appurtenant to his land; and the plaintiff, though he shewed only possession of the tract, might maintain an action for the disturbance of an easement appurtenant to the land.
    “ The defendant then produced in evidence a deed of conveyance from A. Campbell, Commissioner in Equity, to the defendant, of the Auckland tract, dated 11th February, 1845, and also a deed of the same date from Campbell, Commissioner in Equity, to Burnett McBride, of the Gibbes tract. This deed calls for Auckland as a boundary, and the first deed calls for the Gibbes tract as a boundary.
    
      “ Archibald Campbell testified that file plantations having been the property of Leith, were sold by him as Commissioner in Equity. McBride said he had paid for the land with funds of the estate of Ferguson, and bought it for that estate. The witness could not say that he had sold the lands by the plat produced by the defendant, but thinks it highly probable he did so. The plat is not referred to in the deeds. On the plat the bank is represented as the line between the tracts, and the canal is not laid down.
    “ It was contended that when the tide to Auckland and the Gibbes tract became united in Leith, the easement of the canal, appurtenant to the Gibbes tract, was extinguished; and was not restored when the unity of the title was severed by the sale of the Gibbes tract to plaintiff. But the-Jury were instructed that the canal, being a necessary easement, appurtenant to the Gibbes tract, was not so extinguished by the union of the title to it and Auckland in Leith ; that on a re-sale, byLeith, of the Gibbes tract, it was not deprived of this appurtenant easement; for an easement necessary to the cultivation or valué of a tract of land, and appurténant to it when it was acquired'by the vendor, by intendment of the law shall pass with the land when it is aliened by ■him, if there be no agreement to the contrary.
    
      “ The jury found a verdict for the plaintiff, affirming the existence of the canal in its whole extent. The verdict was not ordered to be amended, though it found more than the issue; because, though not evidence for Saunders and Glover, it might suppress other suits.”
    • The defendant appealed, and now renewed his motion for a nonsuit in this case,
    1. Because the words, as laid down in the declaration, that the plaintiff was seized and possessed of the land, was not sustained by evidence.
    2. Because the proof submitted by plaintiff clearly shewed that he had no ownership in the soil.
    And failing in that, then he moved for a new trial:
    Because the rights of plaintiff, if he ever had any, were extinguished by unity of title and possession in Dr. Leith to both plantations.
    Henderson, for the motion.
    
      Cam, contra.
   The opinion of the Court was delivered by

Evans, J.

There is no doubt that one, proving the actual possession of land, to which an easement is attached, may have an action for disturbing him in the enjoyment of it. And it is not denied that this plaintiff was under no obligation to set out the quantum of interest which he had in the land. Possession was all that was necessary to be alleged or proved. It has been argued that seisin means the same as possession, but I do not find this to be so. It does mean possession, but it is a possession of a freehold estate, such as by the common law is created by livery of seisin. The facts stated in the declaration must be such as to give the plaintiff a cause for action, but it is not contended if he sets out more than this, he is bound to prove it, and if he does not, there is a variance between the allegation and the proof. The rule from some of the cases would seem to be this, that if two facts are stated and one of them is sufficient, it is not imperative on the plaintiff to prove both. Bromfield vs. Jones, 4 B. & C. 380, (10 Eng. C. L. R. 362), was an action for the escape of one committed on execution. The declaration set out that the plaintiff at E. T. 5 Geo. 4th in K. B. recovered against one H. W. seventy-nine pounds, as appeared by the record, and that at Trinity term of the same year, such proceedings were had as that the plaintiff was entitled to his execution for his damages, &c; whereupon the said H. W. was committed to the custody of the defendant, who suffered him to escape. On the trial, the plaintiff gave in evidence his original judgment, but gave no evidence of the scire facias, and his proof was held to be sufficient. He had proved enough to maintain his action, and was not bound to prove the proceedings or the scire facias, although he had set them out in his declaration. But there is a confusion in the cases on this subject, and I am unable to lay down any clear and intelligible rule whereby to determine when a plaintiff is bound to prove an unnecessary averment. It is certain that some immaterial averments may be struck out as surplusage, and it is equally true that if there be a traverse of an .immaterial averment and issue be taken on it, it must be proved. But whether the general traverse of the plea of not guilty imposes the proof on the party making the averment, is not so very certain. 1 would rather infer from what is said in 1 Chit. PI. 229, and 2 Saund. B,. 206, that the issue shall be made by a special traverse. But we meet this case on a different ground. Possession is presumptive evidence of title, not of any particular title, but of such as is necessary to maintain the action. When, therefore, it was proved that the plaintiff. Ferguson, was in possession, the law from this, presumes he was the owner of the land, unless the contrary be proved. I think, therefore, the defendant can take nothing by his motion for a nonsuit.

It is not denied that Gibbes had a prescriptive right of drainage through the canal which the defendant has obstructed, but it is contended that because the title to both estates was united in S. W. Leith, this operated as an extinguishment of the easement. It is true that unity of title will in general have that effect. But where the easemeht is essential to the enjoyment of the land, and the estate cannot be enjoyed without, it, the easement of necessity is appurtenant to the estate, and will pass with it to the purchaser. (Nicholas vs. Chamberlain, Cro. Jac. 121.) A man erected a house on a part of his land, and built a conduit on another part, and laid pipes to conduct the water to the house. He afterwards sold the house, and it was held that the use of the conduit was appurtenant to the house and passed by the sale to the purchaser. According to this case, if Leith, whilst he was the owner of both tenements, had dug the canal for the purpose of draining the plaintiff’s land, and had after-wards sold the land, the right to use the canal would go with the land.

It can make no difference that the canal was there before Leith purchased, or that the Commissioner in Equity and not Leith sold the land. When he became the owner of both tenements, it was competent for him to have severed the easement from the tenement, and if he had done so, I suppose the doctrine would apply, that an easement once severed was extinguished forever. But he used the canal for the purposes to which it had been originally devoted, and in that condition it was sold as a part of his estate. We are of opinion, therefore, that the plaintiff, who is presumptively the legal owner of the estate, is entitled to the use of the canal; and to retain his verdict against the defendant for obstructing it.

The motion is dismissed.

Q’Neall, Wardlaw, Frost, Withers and Whitner, JJ. concurred.

Motions dismissed.  