Kelly v. Nagle

Digges, J., delivered the opinion of the Cburt. This appeal is from a1 decree of the Circuit Court of Harford County perpetually enjoining the appellant (defend ¹²⁷ ant below) from in any way interfering with the water pipe which enters the spring of the defendant, or doing anything to prevent the flow of the water from the said spring through the pipe. This decree was passed upon a bill, answer and testimony, and was in response to a prayer of the bill. The bill was for an injunction to restrain the defendant from interfering with the plaintiff in the use of water from a spring located on the land now belonging to the defendant.

The facts as disclosed by the record are substantially these: Thomas F. Nagle, the father-in-law of the appellee, by deed dated March 1st, 1900, acquired from Alverda Hood and husband a tract of land in Harford County lying on the south side of the public road leading from Schuck’s Corner to Thomas’ Run, described by courses and distances in said deed,, and containing according thereto fifty-six acres, twenty-seven perches, of -land. Shortly after acquiring this property, Thomas F. Nagle moved to and resided upon the same. On March 27th, 1915, Thomas F. Nagle and wife conveyed to the appellant, James M. Kelly, a, portion of the land which he had obtained from Hood. This deed described the land conveyed by courses and distances, and by such description contained forty-seven acres of land more or less.

After this conveyance 1 Thomas F. Nagle had remaining, according to the plat forming a part of the record, six acres twenty-seven perches of the land originally obtained by him from Hood. Upon this six acre twenty-seven perch tract were located the dwelling house of Thomas F. Nagle and also a large spring enclosed-with a wall. This spring was located between the dwelling house and the public road, about one hundred and twenty-five feet distant from the latter. By deed dated April 19th, 1921, Thomas F. Nagle acquired in fee simple from.

Spencer Nagle a tract of land containing six and one-half acres, lying on the north .side of the public road above referred to, and being separated from the tract upon which the spring was located by said public road. On February 14th, 1922, Thomas F. Nagle and wife conveyed to the appellee the six and one- ¹²⁸ half acre tract on the north side of the road, which he had previously acquired from Spencer Nagle in 1921. This deed was a fee simple deed signed by Thomas Nagle and wife, and contained the following clause: “Together with the buildings and improvements thereupon and all and every the rights, roads, ways, waters, easements and appurtenances thereto belonging or in any wise appertaining.” On November 16th, 1922, the following deed was executed by Thomas E'. Nagle and wife to the appellee: “This Deed, made this 16th day of November, in the year nineteen hundred and twenty-two by Thomas E. Nagle and Captóla Nagle, his wife, of Harford County in the State of Maryland.

Whereas, Thomas E. Nagle, is the owner of certain lands situate in Harford County, State of Maryland, more particularly described in a deed from Alverda Hood and husband to said Thomas E. Nagle, dated March 1st, 1900 and recorded among the Land Records of Harford County in Liber W. S. E. No. 99, folio 167, on which there is located a spring which is about one hundred fifty (150) feet from the public road leading from Schuck’s Corner to Thomas’ Run. And whereas the said Thomas E. Nagle intends to grant unto a certain Jennie Nagle the right and privilege of laying a water pipe, not exceeding three-quarters of an inch in diameter, from the said spring to the lands of Jennie Nagle near or adjoining the said lands of Thomas E. Nagle so that the said Jennie Nagle may enjoy the use of such water from said spring as she may need on her said property. Now this deed witnesseth, that in consideration of the premises, and the sum of five dollars ($5.00) the receipt whereof is hereby acknowledged, the said Thomas E. Nagle and Captóla Nagle, his wife, grant, bargain and sell unto the said Jennie Nagle, her heirs and assigns, an easement and right, use and privilege to draw and use from.said spring, for the purposes aforesaid, all water that she may need on her said ¹²⁹ property as aforesaid, with the right to said Jennie Eagle, her heirs and assigns, of ingress and egress over and upon the lands of the said Thomas E. Eagle for the purpose of keeping in repair the pipe as aforesaid. "Witness our hands and seals.

Thomas E. Eagle (Seal) Capitola Eagle (Seal) Test: Lewis J. Williams.” Subsequent to the execution of this deed Thomas F. Eagle died, and Philip H. Close, trustee, under the decree of the Circuit Court of Harford County, sold and conveyed to the appellant, by deed dated Alay 19, 1924, that part of the land which Thomas E. Eagle had obtained from Hood, which was not sold by him during his lifetime, which contained six acres twenty-seven perches, and upon which the spring in question is located. Some time in Eovember, 1922, the appellee, in pursuance of the deed to her of Eovember 16, 1922, giving her that right, laid a three-quarter-inch pipe from the spring across the county road to a milk house oil her tract of six and one-half acres: and she continued to use this pipe until EehrUr ary, 1925, at which time the appellant plugged up the plaintiff’s pipe in the said spring and felled some trees across the spring. Because of this action on the part of the appellant, this suit wa's instituted. The plaintiff below (appellee here) claims her right to use the water from the spring for the benefit of her property on three grounds: Efrst, by right of prescription acquired by adverse user by herself and her predecessors in title for more than forty years, during which time the water for the household and blacksmith shop located on her six and one-half acre tract was obtained from the spring in question continuously, without permission or license from the owners of the property on which the spring is located; second, that at the time of the execution of the deed of Thomas E. Eaglo ¹³⁰ to the appellee in February, 1922, there was an implied grant, appurtenant to the property sold., of the use of the spring in question, for the reason that at the time the grantor was the owner of the land on which the spring wa's located, and the occupants of the property sold to the appellee were at that time, and had been, for more than thirty years prior thereto, using the water from the spring; third, by virtue of the deed from Thomas F. Eagle and wife to the appellee, dated Eovember 16th, 1922, expressly conveying her the right to lay and maintain the pipe from the spring to her property.

There may be some question as to whether or not the acts of user by the owners and occupants of the six and one-half acre tract, which is the dominant tenement, were sufficient to create an easement by prescription. It is unnecessary for us to determine that question in this case, for, assuming the contention of the appellee to be correct, and that the easement had been validly acquired by prescription, yet when the ownership' of the dominant and servient estates became, in 1921, united in Thomas E. -Eagle, any easement then acquired and existing was extinguished. In 14 Oye., at page 1188, it is said: “An owner of land cannot have an easement in his own estate in fee, for the plain and obvious reason that in having the jus disponendi, the full and unlimited right and power to make any and every possible use of the land, all subordinate and inferior derivative rights are necessarily merged and lost in the higher right.” In McTavish v. Carroll, 7 Md. 352 , at page 358, we said: “For a man cannot subject one part of his property to another by an e'asement, because he cannot have an easement in'his own property, as the same object is obtained by him through the exercise of the general right of property.” In Capron v. Greenway, 74 Md. 289 , we held that where one became the owner of the dominant and servient estates, and there was no one else entitled to either, they were merged and the easement was extinguished. And again, in Duval v. Becker, 81 Md. 537 , this Court, speaking through ¹³¹ Judge McSherry, said: “It is true that when the same person becomes the owner of the dominant and servient estates, and there is no intervening or outstanding interest or title held by some one else in or to the appurtenant easement, the unity of the two estates in the one individual necessarily extinguishes and merges the easement' appurtenant to the dominant estate, because no person can have an easement in the land which he himself owns.” Mitchell v. Seipel, 53 Md. 251 ; Oliver v. Hook, 47 Md. 308.

The next question is whether or not, by reason of the deed of February 14, 1922, from Thomas F. Eagle to Jennie Eagle, there was an implied grant of the easement to use water out of the spring located upon the land then remaining in the ownership of Thomas F. Eagle. An implied grant of an easement is based upon the principle of construction that where a man grants a definite thing, there accompanies it, by implication, as a part of that grant, everything necessary to its reasonable enjoyment, or at least those things which the common owner has used for the benefit of, and which are appurtenant to, the thing which is granted, during the time it was in his possession. Or, in other words, upon the grant by the owner of part of his property, as it is then being used and enjoyed, there will pass to the grantee all those continuous and apparent quasi easements which are necessary to the reasonable use and enjoyment of the property granted, and which have been and are at the time of the grant being used by the owner of the entirety for the benefit of the part granted. Janes v. Jenkins, 34 Md. 1 ; Mitchell v. Seipel, supra.

In 14 Cyc. 1166 the rule of the common law upon this subject is stated to be: “'That where the owner of two heritages, or of one heritage consisting of several parts, has arranged and adapted these so that one derives a benefit or advantage from the other of a continuous and obvious character, and he sells one of them without making mention of those incidental advantages or burdens of one in respect of the other, there is in the silence of the parties an implied understanding and agreement that these ¹³² advantages and burdens respectively shall continue as before the separation of the title.” In Janes v. Jenkins, supra, this Court, speaking through Judge Alvey, 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.” See also Mitchell v. Seipel, supra ; Burns v. Gallagher, 62 Md. 462 ; Eliason v. Groves, 85 Md. 223 . It is also well settled that such quasi easements as pass by implication and ripen into easements for the benefit of the grantee of the dominant estate, must have been, and must be at the time of the conveyance,, apparent and continuous. In Tiffany on Real Property, vol. 1, page 706, it is stated: “That an easement to be thus created by implied grant must be apparent, is conceded by all decisions; and it is apparent, it is said, for this purpose, if its existence is indicated by signs which must necessarily be seen, or which may be seen or known on a careful inspection by a person ordinarily conversant with the subject.” In other words, to be apparent, a’s used in this connection, requires -that the quasi easement or use enjoyed by the dominant tenement and imposed as a burden upon the servient tenement, must be visible, or such as would come to the knowledge of a prospective purchaser of either the dominant or servient estate by such an examination of the premises as is ordinarily made by one desiring to purchase. In Eliason v. Groves, supra, this Court said: “Whilst courts should not be too ready to sustain grants by implication, yet ¹³³ if at the time of the purchase of the property there are visible and apparent easements and privileges annexed 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 nse 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 sncb a character as would induce the public to believe that it was attached to the property and is 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 he 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 addition to being apparent, the quasi easement must be continuous. In determining what constitutes a continuous easement or quasi easement, there is a difference of opinion as expressed in the decisions of the courts. In some of those cases the courts hold that an easement is continuous if no act of man is necessary to its continued exercise; cases holding this view being imported in Mississippi, Khode Island and Michigan.

The view adopted by other courts is, that if there is a permanent adaptation of the two tenements to the exercise of the easement, it is continuous. This view is supported by decisions in the states of Yew Jersey, Indiana and Yew York, and is in harmony with the decision of this Court in the case of Eliason v. Groves, supra. These principles being' firmly established, not only by the weight o£ authority elsewhere, but by our own decisions, the question is of their applicability to the facts of the case now being considered. The easement or quasi easement contended for by the appellee is the right to take water out of a spring by buckets.

In doing this, there would not necessarily be any marks or indications left upon the servient tenement as to the exer ¹³⁴ eise of the easement; and the easement or quasi easement was not of such a character as would bring to the knowledge of the prospective purchaser of either the dominant or servient tenement, even after the most careful inspection, the existence of such quasi easement. We, therefore, do not think that this case measures up' to the requirements of the quasi easement being apparent. As to the question of its being continuous, we think this question is concluded by Eliason v. Groves, supra, in which the right to take water out of a well was held to be a continuous easement; and there can be no difference between the right to take water out of a well and the right to take it out of a spring. It is contended by the appellee that the last mentioned case is also authority for this quasi easement being apparent.

But in this, as stated, we cannot agree. In that case there was a well on or near the division line between the dominant and servient lots, which were owned originally by the same party. There was also a gate or door through the fence which divided the two lots, directly at the well; and it was plainly apparent to anyone purchasing either of these lots that the well had been used, and was intended to be used, in common by both lots. There was also evidence in that