Legg v. Horn

C, owning two dwelling-houses upon adjoining lots, and having a right to the water from a spring upon land of another party for use at the houses, sold one of the houses to L. In the negotiation he had agreed that L should have one-half the water from the spring and that they should at their joint expense lay a pipe from the spring to a point near the houses, from which each should lay a pipe to his own house at his own expense. This agreement was not put into the deed, nor in writing, but it had a controlling influence in inducing L to purchase. The pipes were thus laid, at an expense to L of $100. After-wards C purchased the lot containing the spring, and some time after sold that lot with his dwelling-house to H, who bought with full knowledge of the agreement with L as to the water and pipes. After his purchase B demanded payment of L for the further use of the water, but L continued to take it as before, claiming the right to do so under the agreement with O. B forbade L to take water from the spring and finally cut the pipes on his own land. L had used the water under the agreement for more than fifteen years from the time of the purchase. Upon a petition for an injunction against B, it was held— 1. That the agreement of C with L was not a mere license, but that L acquired under it an equitable right. 2. That L, by his use of the water under a claim of right for fifteen years, had acquired a legal title to the easement. 3. That L had a right to enter upon the land of B to repair the pipes and put the spring in order. 4. That the remedy by action at law for damages was entirely inadequate, and a court of equity had jurisdiction. 5. That B should be enjoined, not only from doing any act that should prevent L from taking water from the spring, but from using the water in any manner that should deprive L of the use of one-half of it.

Petition for an injunction against interference by the respondent with the right of the petitioners to the use of water from a spring; brought to the Superior Court in Tolland County. The following facts were found by the court: On 3d day of January, 1860, and for some time before, the Hockanum Company owned a tract of land in the town of Yernon, on which was a spring of water. North of this land and adjoining it Andrew. J. Colburn owned a tract of land on which were two dwelling-houses about nine rods apart, and nearly opposite each other on an east and west line; the east one of which Colburn occupied as a residence. He desired to sell the- west part of the tract with the other dwelling-house and a barn thereon, and the petitioners desired to buy a place for a residence. The premises which Colburn desired to sell were destitute of water, but he represented to the petitioners that he owned the land on which the spring was situated, and had control of the spring, and could secure and convey to them the right to take water from the spring by a ditch and pipes for the use of the premises, and promised them that in case they should buy the place he would secure to them for the use of the house and premises the right to take one-half of the water from the spring by proper ditches and pipes, and that he and they at joint and equal expense would put and keep the-spring in proper condition by mason-work, and would convey the water .from it by a suitable ditch and pipe to a spout on the premises designated by a large stone, from which point each party might at his own expense take the water in branch pipes of equal size to the two dwelling-houses. This was agreed upon between them, but was not reduced to writing. Thereupon •the petitioners bought of Colburn the west dwelling-house and premises, and he conveyed the same to the petitioner, Ellen Legg, wife of the other petitioner John Legg, by deed, dated January 3d, 1860, and the petitioners immediately went into possession, which possession has ever since continued. The agreement of Colburn with the petitioners regarding the spring of water and taking water from it and his representations regarding his ownership of the spring, and his promise that he would convey to them the right to use the water at the house and on the premises in question, in case they should buy the same, had a controlling influence with the petitioners in inducing them to buy the property. Immediately after the deed had been given, and in pursuance of the agreement as to the water, Oolburn and the petitioners constructed a main ditch from the spring across the land of the Hockanum Company, and aci’oss the premises coxxveyed to a point thereon designated by a large stone, and laid therein a suitable main pipe of oxxe and one-half iixches iix diameter, and put the spxing in good condition, all at their joint and equal expense, the petitioner's’ half of which was something over $100. From the point of the termination of the main pipe, Colburn conveyed water by ditch and branch pipe to his owxx house, and the petitioners in like manner to theirs, the pipes being of the same size, three-fourths of an inch in diameter. The wox’k was completed by the 15th of Apx-il, 1860, axxd in Jxxne following the petitioners carried the water by a branch pipe, from their own pipe, to the banx. In January, 1868, the Hockanum Company sold and conveyed the land oxx which the spx'ixxg was situated, to Colburn. In April, 1864, Colburn sold and coxxveyed his own dwelling-house and premises to Frederick Horn, the respondent, and with them the land that he had pxxrclxased of the Hockanum Company. His deed was an absolute one, containing no exception of the rights of the petitioners iix the sprung and water. After the respondent took his conveyance of Colburn he claimed pay of the petitioners for the use of the spring, and from time to time made the demand, but the petitioners coixtinued to take the water by means of the pipes in the same manner as befox’e, and claiming the right to do so under their agreemexxt with Oolburn, uixtil the 16th of November, 1875, when the respondent cut the main pipe on the land formerly owned by the Hockanum Company and entirely stopped the water from going to the premises of the petitioners, and was engaged in diverting the water from the spring at the time the petition was served on him, and .has ever since forbidden the petitioners to use the spring axxd the water from it. The respondent took his conveyance from Colburn with full knowledge given him at the time by Colburn and the petitioners regarding the agreement as to the spring, and with full knowledge that the petitioners were then in the use and enjoyment of the spring by virtue of the agreement by the ditches and pipes connected with it, and the same were pointed out to him on the premises by Colburn before ho took his convey* anee, Colburn informing him that he sold him the property as it then was. Upon these facts the case was reserved for the advice of this court.