Owen v. Field

W., the ownei of land, on which were springs, entered into an indenture with K, by which he let, granted, sold and conveyed to K. and his heirs “the whole use ” of said springs, with the right of laying an aqueduct for the purpose of supplying water to a town, and also the right of entering upon the land at all reasonable times for the purpose of construction and repairs, doing no unnecessary damage; and K. covenanted to furnish to W. and his heirs a. reasonable supply of water at his house, “ and if by any reason the water should not be delivered in the main pipe for the space of one whole year at one time, this indenture is to cease and be thereafter void and of no effect,” K., his heirs and assigns, “ retaining the right in that case to take away their pipes, they filling up the trenches and doing no unnecessary damage.” Held, that this indenture gave K. no right iq the soil of W.’s land, hut only an easement which was determined by its own limitation on K.’s ceasing for the space of more than a year to deliver water, and taking up his pipes. B., the owner of land containing four springs and subject to an easement in K. to take the ■ water of said springs by an aqueduct, conveyed the land to H., reserving “ the right of laying down other pipe, and taking the waters of- said springs, and repairing any aqueduct that said B., or his heirs or assigns, may see fit to lay down and use as per the conditions relating to the present pipe and fixtures.” K. was bound by agreement to do no unnecessary damage in laying and repairing the pipes, and to supply water to an estate now owned by F., a third party. Held, that this reservation gave B. the right, after the termination of K.’s easement by abandonment according to its limitation, to convey and nse the water as K. might have done, but without any obligation to supply F., and that this right was assignable, although B. had no land in the neighborhood, for the benefit of which it could operate. One who owns land on both the north and south sides of a highway and the fee in the soil of the southern half of the highway, and has laid an aqueduct under the highway from springs on one side to his house on the other, without objection on the part of the owner of the soil of the northern half of the highway, can maintain a bill in equity to restrain one who has cut off the water from the aqueduct. Equity will restrain a landowner from obstructing the plaintiff in her right to draw water by an aqueduct from springs on his land for the use of her house, if such obstruction is total, is meant to cut her off entirely, and is accompanied with denial of her right, and if her right is ancient, although such right has been until recently exercised by an aqueduct going partly in another direction, laid-over land of the defendant by his permission, and used by him, without waiver of right by either party; and although a hill previously brought for the same purpose was dismissed because it did not appear that the plaintiff could then convey the water from the springs to her house without trespassing on the land of others, if she has since purchased land which enables her to carry the water to her house without any trespass, though such land was purchased for the purpose of renewing the litigation. On a bill in equity to restrain the defendant from obstructing the right of the plaintiff to take water from four springs on the defendant’s lot, it appeared by the master’s report that the plaintiff was entitled to take water from four certain springs on the lot distinctly specified in the deed to her, and that she had taken water from four springs on the lot. At the hearing before the full court it was for the first time suggested by the defendant that there was no evidence that the springs from which the plaintiff had taken water were the springs to the water of which she was entitled. Meld, that, in the absence of evidence of any practical uncertainty or that there were more than four springs on the lot, the possession of the plaintiff must be presumed to be according to the terms of her deed. A person to whom had been granted by deed the right to draw the water of four springs on the grantor’s land by an aqueduct used the water of only two of them for fifteen years; but there was no adverse use of the other two; afterwards he took the two other springs into the aqueduct. Melcl, that the right to the enjoyment of these latter two springs had not been lost by nonuser, and that the remedy of the plaintiff in equity against the defendant for obstructing the use of the springs was not confined to the two springs which he had at first used.

Bill in equity filed November 2,1866, setting forth that the plaintiff was owner of a house and land in Stockbridge, and also of four springs on land of the defendant, and that she had a right to have the water from these springs conducted by an aqueduct across the defendant’s land to her house; but that the defendant had destroyed the aqueduct and prevented the plaintiff from exercising her said right, doing her irreparable injury. The prayer was for the restoration of the plaintiff’s right, for an injunction and for general relief. The answer denied the plaintiff’s right and also that she was entitled to relief in equity, and set up the statute of limitations. The case was referred to a master who reported the following facts. On June 5,1830, Joseph E. Woodbridge, being owner of a lot of land in Stockbridge on the south side of the Housatonic River, afterwards known as the “ Hull lot,” on which were four springs, of a homestead lot and house north of the river and between it and the Stockbridge and Lee road, then a turnpike, but which in 1853 became a highway, and of a third lot and house on the opposite side of the road, entered into an indenture, as party of the first part, with Isaac Kellogg, George C. Kellogg, Thomas Dyer and Harvey Case, parties of the second part. This indenture, after reciting that “ the parties of the second part have it in contemplation ” to conduct the water from the four springs to the village of Stockbridge, set forth that “ to facilitate said undertaking, and in consideration of sixty dollars to me in hand paid, and of the covenants and agreements hereinafter mentioned, the party of the first part, for himself, his heirs and assigns, lets, leases, grants, sells and conveys to the parties of the second- part, and to their heirs and assigns forever, the whole use of said four springs, and the right and privilege of laying an aqueduct in the usual manner for the purpose aforesaid across any ” of his land on the south side of the road, and also the right and privilege of making reservoirs, “ and also the right and privilege of entering upon said land at all reasonable and proper times ” “ for the purpose of making said aqueduct and reservoirs, and of making all suitable or necessary repairs of the same, doing no unnecessary damage.” The parties of the second part covenanted for themselves, their heirs, executors, administrators and assigns, with the party of the first part, his heirs and assigns, to deliver to him, his heirs and assigns, a reasonable supply of water for the use of two houses and a barn on his land, the water to be delivered by the first day of December next, “ and to be continued thereafter forever, subject to the conditions and stipulations hereafter mentioned. But if there should be a failure of water at the springs, or of the main pipe leading from the springs to the north side of the river, the parties of the second part are not to be responsible in damages for not delivering the water in manner aforesaid. And the parties of the second part, for themselves, their heirs, executors, administrators and assigns, covenant and agree with the party of the first part, bis heirs and assigns, to make an aqueduct with good leaden pipes from the first reservoir north of the river or from the main pipes, and conduct the water therefrom to the party of the first part, his heirs and assigns, at the several places aforesaid, and then they are to be discharged from the further care and support of that part of the aqueduct leading from the said first reservoir north of the river, or from the main pipe, to the several places aforesaid, and the party of the first part, for himself, his heirs and assigns, covenants with the parties of the second part, their heirs and assigns, to support and keep the same in repair thereafter, at his or their own expense. And if by any reason the water should not be delivered in the main pipe, on the north side of the river, for the space of one whole year at one time, this indenture is to cease and be thereafter void and of no effect, the parties of the second part, their heirs and assigns, retaining the right in that case to take away their pipes, they filling up the trenches and doing no unnecessary damage.” Isaac Kellogg and his associates, the parties of the second part under this indenture, soon after its execution, laid an aqueduct supplying the village with water to some extent, as well as both of Woodbridge’s houses, as specified in the indenture. This aqueduct was kept in operation, with more or less regularity, and under charge of various persons, for several years. It ceased to supply one of Wood bridge’s houses as early as 1840, and there was no evidence that it ran to any other place in the village later than 1840 except to the other Woodbridge house. It was contended by the defendant that the aqueduct supplied water to this latter place as late as 1847, and much evidence was introduced upon the point, “ but it failed to satisfy the master of ths fact and he cannot state that it did supply water later than 1840.” Isaac Kellogg and his associates ceased to repair thus aqueduct after 1839; a year or two previous to 1851 they endeavored to sell it and their rights in it; and in 1851 they took up and removed the pipe. On October 25,1832, Woodbridge conveyed to Edward Buirail the “ Hull lot,” on which the springs were situated, by a warranty deed containing this provision: “ Hereby reserving from and on said lot above mentioned all the rights and privileges heretofore conveyed by the said Joseph E. Woodbridge to Isaac Kellogg, George C. Kellogg, Thomas Dyer and Harvey Case, their heirs and assigns, by an indenture dated June 5, 1830 ” and on. February 9, 1846, Burrall conveyed the Hull lot. to David C. Hull by a warranty deed containing this provision: “ The said Burrall reserving to himself, his heirs and administrators and assigns, the water of four springs on said land, being the same springs conveyed by Joseph E. Woodbridge to Isaac and George C. Kellogg, Thomas Dyer and Harvey Case, as per their contract dated June 5,1830, together with the aqueduct pipe now in the ground on said land, with all fixtures belonging to said aqueduct and springs, with all the privileges named in said agreement of entering upon the land to repair said aqueduct at all times, to take away said pipe and fixtures, and all other privileges conveyed by said agreement. The said Burrall also reserves the right of laying down other pipe and taking the waters of said springs, and repairing any aqueduct that said Burrall or his heirs, administrators or assigns, may see fit to lay down and use, as per the conditions relating to the present pipe and fixtures.” On March 17, 1851, Hull conveyed to the Stockbridge and Pittsfield Railroad Corporation “ the right to the sole use and occupancy of” a strip of land running across the Hull lot from east to west north of the springs, “ as a roadway and for the purposes of a railroad.” In 1855 the heirs of Hull conveyed to the defendant by warranty deed that part of the Hull lot which lay north of the railroad, between it and the river, “ and also the water of the springs on my land south of the railroad, or so much thereof ás does not already belong to Daniel Stanton or Edward Burrall, together with the right to build and maintain an aqueduct to the same; ” and in 1864 the heirs of Hull conveyed to the defendant that part of the Hull lot which lay south of the railroad, “reserving all rights to springs and the right to take them, lay down, take up and repair aqueduct, &c., which Edward Burrall reserved in his deed to David C. Hull, dated February 9,1846.” Burrall by deed dated April 1, 1847, conveyed to Isaac Brown three parcels of land in Stockbridge. The first has nothing to do with the present case; the second was a narrow strip running from the Stockbridge and Lee road to the Housatonic River opposite to the third parcel; the third parcel lay on the south side of the Housatonic River and adjoined the west side of the Hull lot. The deed contained this provision: “ The said Burrall reserves to himself, his heirs, executors, administrators ana assigns, all the lead pipe belonging to an aqueduct in or on the ground or in the river, on the two last described lots of land; also, the right of continuing in the ground and in the river, and also of laying down pipe through the lane or second piece of land from the river to the said turnpike road. Said Burrall also reserves the right of entering upon the last two pieces of land, by himself and hired men, for the purpose of laying down pipe and repairing said aqueduct; he also reserves the right of making a reservoir for said aqueduct, on the lot on the south side of said river; also reserves the right of entering upon the last two pieces of land, by himself and hired men and teams, for the purpose of taking up and carrying aw.ay all of said lead pipe, aqueduct and fixtures belonging to the same, he leaving the land smooth and in good order. The three above described parcels of land are hereby conveyed with all the privileges and appurtenances belonging to the same, subject to the above reservations.” The title to the second and third parcels, known respectively as the “ Brown lane ” and the “ Brown lot,” became, by mesne conveyances, vested in the defendant. On March 25, 1845, Burrall, who was at that time the owner of two lots of land to the north of the Stockbridge and Lee turnpike, one on the east side of a road leading from the turnpike to Jones’s Hill, and the other on the opposite side of said road, (the former lot being the one now belonging to the plaintiff,) conveyed to Horatio Byington the latter lot and “ also the aqueduct pipes and appurtenances on the premises, and the pipes across the west half of the road leading to said Jones; also one half of the water of the springs on the land of said Burrall, lying eastwardly of the land hereby conveyed, and a right in the aqueduct on the land of said Burrall and on the east half of said road, leading to said Jones, through which the water is now conducted, for the purpose of conducting the water on to the premises hereby conveyed; also a right of entry on the land of said Burrall, for the purpose of putting down and repairing said aqueduct and spring, leaving the land of said Burrall and premises in as good order as when entered upon.” The spring mentioned in this deed has no reference to any of the springs on the Hull lot, but to a spring on that other lot of Burrall to the north of the turnpike, which now belongs to the plaintiff. This spring has been dry during a part of several years. This other lot of Burrall’s to the north of the turnpike consisted of two parcels separated by a highway running at an angle from' the turnpike and leading to Lenox, so that one of the parcels, called “ the triangle,” lay between the turnpike and the Lenox road, and the other lay between the Lenox road and the road to Jones’s Hill above mentioned. Burrall, by deed dated November 7,1851,- conveyed both these parcels to Junius D. Adams, who, by deed dated November 20, 1851, conveyed them' to Daniel Stanton. In these deeds the former parcel was bounded beginning at the junction of the turnpike with the Lenox road, thence on the Lenox road five rods to a stake, thence south 4° west by land of Hinckley “ to a stake in the north line of the turnpike road, thence north 84° west four rods to the place of beginning; ” and Burrall, by a quitclaim deed, dated March 23, 1853, released to Stanton all his “ right in and title to the water of four springs, the springs and the land connected therewith necessary for the enjoyment and use of the same, being the springs mentioned and intended ” in the indenture between Woodbridge and Isaac Kellogg and his associates, “ and reserved in a deed of land to David C. Hull given by me dated February 9, 1846,” “ with all the rights of entering upon the land so conveyed to Hull for the purpose of taking away the water of said springs, laying down aqueduct pipe, repairing, or for the purpose of doing any other act or thing in any wise touching said springs or the land so conveyed to said Hull, which I reserved to myself in and by said deed.” The deed also quitclaimed and released to Stanton all the rights reserved by Burrall in his deed to Brown above mentioned, and also all his right, title and interest in the land over which the Lenox- road passed. There was evidence tending to show that Burrall, at the time of his giving this quitclaim deed to Stanton, had no real estate in Stockbridge, except a distant piece of swamp land. On December 19, 1860, Stanton conveyed to the plaintiff the premises conveyed to him by Adams by the deed of November 20,1851, and also all the rights, .privilege and estate conveyed to him by Burrall by the deed of March 23,1853. Woodbridge conveyed to Caleb Hyde his lot of land on the south side of the turnpike by á warranty deed dated February 20, 1833, and containing the following provisions: “ And .1 do also sell, assign and make over to the said Caleb Hyde, all the rights and privileges to which I am entitled by virtue of” the indenture of June 5, 1830, with Isaac Kellogg and his associates, “ to have water delivered by them at my barn yard and at my dwelling-house on the premises hereby conveyed to the said Caleb Hyde, and also the right of enforcing all the covenants and agreements contained in said indenture and obligation, on the parties of the second part, relating to the delivering of the said water to the two places above named, as fully as I now possess the same. And it is expressly understood and agreed by the parties to this instrument, that the above described land is hereby conveyed to the said Caleb Hyde, subject to all the rights and privileges granted in and by said indenture by me to the said Isaac Kellogg and others: and that the said Caleb Hyde, his heirs and assigns, will allow, do and perform all things which I, the said Woodbridge, am bound by said indenture to allow, do and perform in -relation to the aqueduct mentioned in said indenture, and to the water to be delivered at the two places aforesaid, and to the support of the said aqueduct and pipes, so far as they are connected with the above conveyed land, and with the conducting and delivery of the water at the two places above named.” The premises conveyed by this deed had become vested in the daughter of the defendant. In 1855 Stanton, who then owned the premises now belonging to the plaintiff, laid an aqueduct “taking the water of two springs on the Hull lot to said premises.” This aqueduct between the river and the Stockbridge and Lee road passed over other land of the defendant not hereinbefore described. At a conference with the defendant some time before the aqueduct was laid, Stanton claimed the right to lay the aqueduct, which the defendant did not admit; but the parties agreed that Stanton might lay down the line, as he afterwards did, on condition that the defendant might lay a pipe from the aqueduct to supply his house and barn, and in pursuance of this agreement the aqueduct and pipe were laid down and used, “ neither party waiving their legal rights in the premises.” When the plaintiff purchased her estate from Stanton she “ took two other springs into the aqueduct,” and continued to use it till July 1866, when she cut off the pipe leading to the defendant’s house, whereupon the defendant took up that part of the aqueduct which crossed his land between the river and the Stockbridge and Lee road, and forbade the plaintiff to interfere with the water of the springs. The plaintiff filed, on July 26, 1866, a bill in equity against the defendant to restrain him from disturbing her rights to the springs; but this bill was dismissed, as appears by the report in 12 Allen, 457, because she failed to show that, even if the defendant did break up the aqueduct, she had the right to conduct the water to her own land without trespassing on the land of others. The plaintiff had previously, on November 10, 1864, purchased a small lot of land, known as the Thompson lot, on the south side of the Stockbridge and Lee road, opposite the parcel called the triangle, above mentioned, conveyed to her by Stanton. The deed conveying this lot bounded it north on the Stockbridge and Lee road. By deed dated September 28,1866, the plaintiff purchased from Patrick Lawless a strip of land one rod wide leading from the south side of the Thompson lot to the river, there terminating opposite to the Hull lot. The plaintiff purchased this strip of land from Lawless solely for the purpose of obtaining a way by which she might lay her aqueduct from the Hull lot to her house, and she testified that when she bought this strip she “ knew there was a possibility of a lawsuit with the defendant, and a probability of it.” Soon after this purchase she changed the course of the aqueduct, carrying it across the Hull lot, the river, the strip purchased from Lawless the Thompson lot, the Stockbridge and Lee road, the triangle and the Lenox road, to her house. This new line left the line laid down by Stanton at a point on the Hull lot, and joined it again at a point on the Stockbridge and Lee road. On the same day on which this line was completed, the defendant broke it by taking up some pipes on the Hull lot. The aqueduct laid down by Stanton as well as that laid down by the plaintiff were carried under the Stockbridge and Pittsfield Railroad on the Hull lot. The president of the railrtiad company testified that he knew of no authority having been given to run the Stanton aqueduct across the railroad, but that he did not know that it disturbed the railroad and that he had never made any objection. Woodbridge, by deed dated September 25, 1865, released to the plaintiff “ all my rights and title to four springs of, and right of soil for laying aqueduct pipes, together with rights now possessed by me in ” the indenture between him and Isaac Kellogg and others of June 5,1830. The case was reserved by the chief justice, on the pleadings and master’s report, for the determination of the full court.