Eliason v. Grove

Boyd, J., delivered the opinion of the Court. The appellant sued the appellee for damages alleged to have been sustained by him by reason of the latter’s interfering with his use of a well of water in Hancock, Md. We find from the record that Dr. W. H. H. Miller was the owner of two contiguous lots of ground in that town, which he improved by erecting thereon a double brick house. In the rear there was a well of water on or near the division line between the two houses. There was a fence dividing the lots connected with the two houses, and in the fence there was a gate near the well.

During Dr. Miller’s ownership of the property he occupied the west side and rented the east side. He and his tenants used the well in common, and he testified that “ the well of which I have spoken and the houses were so constructed that the occupants of both sides of the house could have free access to the well for the use of the water;” that the tenants “ were entitled to the use of the water, and the houses were so constructed so as to give them the undivided right to it.” While that condition of affairs continued, on November 22, 1856, Dr. Miller sold the west side of the property to Lewis B. Evans, who on the 12th day of July, 1859, conveyed it to Dr. James B. Delaplane. The latter having died, it became vested in his widow and children, and the appellant claimed under them ²²⁴ as their tenant. On May 7, 1864, Dr. Miller conveyed the east side to Henry Fite, who on March nth, 1887, conveyed it to the appellee.

None of the deeds mentioned or refer to the use of the well, or the approach to it by the owners or occupants of the west-side property, although the one from Miller to Evans does convey the property, “ together with all and singular the buildings, improvements, ways, waters, water courses, rights, members, privileges, advantages and appurtenances thereto belonging or in any wise appertaining.” Since the conveyance to Dr. Delaplane the occupants of the west-side property had the uninterrupted use of the water until the trouble arose that resulted in this suit. In 1869 Dr. Delaplane extended his building along the eastern line of his lot and put a door in the wall where the gate had stood, and after that the door was used as the gate had been. The pump is only three or four feet from the door, and is close to the wall of the Delaplane house— the appellee testified that it was from eight to fifteen inches away. There is some controversy as to' whether any portion of the well is on the west side of the division line although the pump is on the defendant’s property.

Dr. Miller drew a plat from recollection, and he placed the division line very near the middle of the well, but he had not seen the property for many years: The plaintiff testified that he undertook to locate the westerly side of the well by digging down below the foundation of the house, and there found a stone which looked like the coping of the well, which projected about eighteen inches west of the wall of the Deleplane house. The location of the pump itself would seem to indicate that some of the wall of the well was probably on the Delaplane side, and there was certainly some evidence tending to show that such was the case. The appellee on April 1st, 1895, shut up the door above spoken of and thereby interfered with the use of the water and cut off the former approach to it — although there is evidence that he offered to let the appellant and his family use the well, provided they came in the yard by a ²²⁵ route designated by him. We will have occasion to more particularly refer to the prayers offered, but the main question intended to be presented is whether the owner of the west-side property acquired such a right to the use of the well and the way to it from the door as gives a cause of action against the appellee, who claims he was not aware of any such right before he purchased the property.

As long as one person owned both properties it could not properly be said that an easement existed in favor of one of them, as the owner could not have an easement in his own land. But whilst that is true, it is also well settled that if during the unity of ownership the owner of two properties uses one for the benefit of the other in such manner as would have given rise to the presumption that an easement existed, if the tenements had been held by different persons, then upon a conveyance of the property so used an easement will be granted to the purchaser, provided the use has been such that the easement resulting from it would be of the class known as continuous and apparent, and would be necessary for the reasonable enjoyment of the property conveyed. The difficulty that often presents itself is the determination of the question whether the facts of the particular case before the Court bring it within that class. There has been confusion in some of the cases because they have not distinguished between implied grants of easements and implied reservations.

By no Court has the distinction been more clearly defined than in the case of Mitchell v. Seipel, 53 Md. 251 , where Judge Miller delivered an able and exhaustive opinion on the subject. The reason for sustaining implied grants is apparent as “ a grantor shall not derogate from his grant,” and when he intends to limit, restrict or burden the use of property conveyed by him for the benefit of property retained, he should express his intention in language that is not easily misunderstood. Whilst Courts should not be too ready to sustain grants by implication, yet if at the time of the purchase of property there are visible and apparent easements and privileges annexed ²²⁶ to it, which are necessary for its reasonable enjoyment, we must assume that they were taken into consideration when the price was agreed upon and that the use of them was paid for. We are not unmindful of the fact that the owner of two tenements may use each for the benefit of the other in such manner as he would not be willing to continue if he sold one of them, but if the use has been of such character as would induce the public to believe that it was attached to the property and is so to continue, it is but fair to a purchaser that a change of the state of the premises be made before the sale is consummated, or notice be given of the intended change by a provision in the deed, if the vendor does not intend to permit the former use of the premises to continue.

That would not be asking too much of the vendor. In Janes v. Jenkins, 34 Md. 1 , it was 'said, “Whenever, therefore; an owner has created and annexed peculiar qualities and incidents to different parts of his estate (and it matters not whether it be done by himself or his tenant by his authority), so that one portion of his land becomes visibly dependent upon another for the supply or escape of water, or the supply of light and air, or for means of access, or for beneficial use and occupation, and he grants the part to which such incidents are annexed, those incidents thus plainly attached to the part granted, and to which another part is made servient, will pass to the grantee as accessorial to the beneficial use and enjoyment of the land.” Again it was there said, “ The grantor being the owner of both tenements could, for the benefit of the tenement granted, fix upon his remaining tenement any servitude he thought proper. That being so, the relative rights and incidents of the two tenements must be taken as fixed at the time of severance by the first grant; and unless restrictive words are used, each will retain as between the two all such incidents and easements as are then openly and visibly attached to and used by it.” It is true there have been many decisions to the effect that an ordinary way, not being a way of necessity, which has been used during the unity of ownership, will not ²²⁷ pass upon a severance of the tenements unless proper terms are employed in the conveyance to show an intention to create the right de novo. It was so held in Oliver v. Hook, 47 Md. 301 .

But there are a number of cases which hold that ways may be so improved and well defined as to bring them within the class of easements, or quasi easements, known as continuous and apparent, and hence pass by implied grants. The tendency of many modern decisions has been to broaden the meaning of the term “ way of necessity,” so as to pass “ways ” by implication. In the case of Burns v. Gallagher, 62 Md. 462 , it was