#### John D. McPherson *vs.*Nicholas Acker.

Equity. No. 5,194.

Decided October 6, 1879.

1. The owner of two adjoining dwelling-houses conveyed one of them, There was a passage way, under and wholly constructed in, the other which was arched over this passage up to the second story. The passage had been used for some time by the tenants of both houses. The deed convéyed the lot by metes and bounds, but did not include the passage-way, and the grantee at the time of the purchase was informed that the right to use the way did not pass with the house. The grantee sold to the complainant, who purchased after inspecting the premises, but without any assurance from the original owner of the house. It was *held*that no right of way existed, and .that the original owner might obstruct and close the same.

2. Pipes placed under the passage-way for the purpose of draining both lots by the original owner before he conveyed, and with no notice given ' that he intended to disturb the same, constitute an apparent and continuous easement, clearly to be implied from the condition and necessities of the premises; and the original owner could be enjoined from disturbing or destroying this right of drainage.

STATEMENT 0E THE CASE.

This suit grew out of the following circumstances : Nicholas Acker was the owner of part of lot 5, in square 685, fronting about 37 feet 6 inches on the east side of North Capitol street. He built a house on the southern part of the lot, having a front of 18 feet 6 inches. Some years afterwards he built another house on the north part of the lot, leaving an alley way under the house and adjacent to the south house of 3 feet in width. The new house was arched *151over the alley and connected with the walls of the other. The southern house was numbered 223 and the other 225. For some time this alley-way was used in common by the tenants of the two houses for passing between the street and the rears of their respective houses ;■ but in consequence of dissension between the tenants Acker accommodated the tenants of No. 225 with an alley on the north side of that house, and then removed the fence running from the northeast corner of the southern house, and connected it with the southeast corner of No. 225,.so as to leave the entrance into the alley only from the rear of house No. 223, and from that time the tenants of that house had the exclusive use of that alley.

Another feature in the case is, that both houses drained through pipes running under ground beneath the surface of the alley to the public sewer in front.

While the houses were in this condition, on the 1st of February, 1876, Acker sold the southern house No. 223 to Jesse Y. N. Huyck. The deed conveys it by metes and bounds, and does not include the alleyway, but conveys *“*with the appurtenances.”

The court found as matter of fact, from the evidence, that at this time the right of way through the alley was the subject of discussion between Acker and Huyck, and that Acker distinctly iuformed Huyck that the alley would not pass with the house, and that he intended to close it up ; and that the utmost that Huyck received was an assurance, w'hich did not seem to have been authorized, from Acker’s agent, that he would be allowed to use the alley.

In July, 1876, Huyck sold to the complainant, McPherson. Mr. McPherson inspected the houre, and discovered that the alley was under the house No. 225. He inquired of Huyck whether it was embraced in his deed, and was answered in the negative. He then remarked that it would not do to have that alley closed up. Huyck assured him that there was no chance of that, that it was there when he bought the house ; and Mr. McPherson contented himself with this assurance without further inquiry.

*152■ Meanwhile, Acker had gone to Europe. On his return in the spring of 1876, he gave notice that he would close up the alley. This bill was then filed by Mr. McPherson, praying that he might be enjoined from obstructing the alleyway, and from interfering with the use of it by himself.

The case came to a final hearing, and the court below denied the relief as to the alleyway, but did enjoin as to the obstruction of the drain underground.

Both parties appealed.

„ Geo. E. Appleby and Calderon Carlisle for complainants:

It is a well-settled doctrine “that the law will not reserve anything out of a grant in favor of the grantor except in case of necessity” Crossley *vs.*Lightower, L. R., 2 Chancery Appeals, 486.

In that case Lord Chancellor Chelmsford said: “ It appears to me an immaterial circumstance that the easement should be apparent and continuous, for *non constat*that the grantor does not intend to relinquish it unless he show the contrary by *expressly*reserving it.” Ibid. Washburn on Easements, §25 *b.*74.

In the present ease the grant from defendant Acker to Huyck, the complainant’s vendor, did not *expressly*reserve the exclusive right to use the alley to house No. 225, and did not *expressly*exclude the use of the alley from house No. 223, and the testimony clearly shows that when Huyck purchased house No. 223, the alley was exclusively used by house No. 225, and continued to be so used until this controversy arose. The grant, without making any such express reservation, conveyed the lot with the “ privileges and appurtenances thereto belonging,” which are apt terms in themselves to convey an alleyway used in connection with the premises conveyed.

We are clearly entitled to the relief asked. Lampkin *vs.*Milks, 21 N. Y., 505; James *vs.*Jenkins, 34 Md., 1-11*;*Thayler vs. Payne, 2 Cush., 727; Washburn on Easements, ch. 1 and 2.

“ The recent case of Lampkin vs. Milks, 21 N. Y., 505,” *153says Washburn, in his work on Easements, ch. 1, § 3 *48, “presents an elaborate examination and discussion of the effect of granting an estate with which the grantor had been accustomed to use certain privileges in the nature of easements, though not naturally belonging to them, nor properly appurtenant to the same, nor granted by deed with the principal estate in express terms.

“It was there held that when the owner of two tenements sells one of them, the purchaser takes the tenement or the portion sold with all the benefits and burdens which appear at the time of sale to belong to it as between it and the property which the vendor retains. The parties are presumed to contract in reference to the condition of the property at the time of sale. Where the owner, by artificial arrangements of the material properties of his estate, has added to the advantages and enhanced the value of one portion, he cannot, after selling that portion with those advantages openly and visibly attached, voluntarily break up the arrangement, and thus destroy or materially diminish the value of the portion sold.” See Washburn as above cited.

A bill in equity lies to prevent the destruction of an easement. Washburn, 698-706. If the act complained of is continued or carried on after clear and distinct notice that it is objected to, (as in this case) the jurisdiction in equity will be exercised more freely than in cases where complaint is not made until after it is completed. Kerr on Injunctions, 232, and cases there cited. There is no rule which prevents the court from granting a mandatory injunction where the injury sought to be restrained has been completed before the filing of the bill. Ibid. The theory of defendant’s answer is in direct hostility to these principles.

N. H. Miller for defendant:

By a fair construction of the deed from Acker to Iluyck nothing passed except the specific piece of land conveyed therein.

No facts appear which tend to show an easement by *154necessity. An easement by necessity is implied only when necessary to the beneficial use of the estate for which it is claimed, and where no substitute for it can be attained at a reasonable expense. White *vs.*Chapin, 12 Allen, 518; also Carbrey vs. Willis, 7 Allen, 364.

If the owner of two adjoining estates, through one of which a drain exists for the benefit of the other, conveys them both on the same day to different purchasers, the right to use the drain will not pass as an easement or appurtenance to the purchaser of the upper estate, provided a new drain can be built upon his own land by reasonable labor and expense. Randall *vs.*McLaughlin, 10 Allen, 366.

In the case of Johnson *vs.*Jordan, 2d Metcalfe, 234, Chief Justice Shaw, in delivering judgment, said:

“ It is vary clear that, whilst both estates were held by the same owner, he had a right to carry his drain as he pleased, through any part of his own grounds ; and as long as both tenements were owned and occupied by the same person, no easement was created, or began to be created, in favor of one, and operating as a service or burden upon the other. So long, therefore, as such unity of title and of possession subsists, no right of easement is annexed to one tenement, or charged on another *;*and it is quiet immaterial how long the drain has subsisted during such ownership.”

To warrant a decree and an injunction to compel a land owner to keep open a way over his premises for the use of another, the complainant’s right should be clear and undoubted. If doubtful, the decree should be withheld until the right is established at law. King *vs.*McCully, 38 Penn., 76; also Atkins *vs.*Bordman aud others, 2d Metcalf, 457.

In order to acquire a right to the enjoyment of water in a particular manner by user, the user must have been adverse aud uninterrupted for fifteen years.

The subject-matter of a deed is to be ascertained from the premises. By a deed of land described as such, an easement not naturally and necessarily belonging to the premises will not pass. Manning *vs.*Smith, 6 Conn., 289.

*155Nothing passes by a deed of land with metes and bounds except what exists at the time as necessary to the enjoyment of the land conveyed, and is a natural incident thereof. Gaetty *vs.*Bethune, 14 Mass., 49; Grant *vs.*Chase, 17 Mass., 443; Whalley *vs.*Thompson, 1 Bos. & Pul., 371.

An easement of this kind is a freehold, and can be created only by deed, or by long, adverse, peaceable and uninterrupted use, which furnishes a presumption of a grant. Hewlins vs. Shippam, 7 Dawl. and Ryl., 783, S. C., 5 Barn. & Cresw, 221; Shury vs. Piggot, 3 Bulst., 339; Erskine vs. Moulton, 4 L. and E. R., May 31, 1877.

Where the soil of a way did not pass as included in the description by metes and bounds, it was held that it could not pass under the term appurtenances. Harris et al. vs. Jesse D. Elliott, 10 Peters, 25.

The general principle is that no right in a way which has been used during the unity of ownership will 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.*

Where a specific piece of laud is conveyed by deed, it being a part of a larger piece held and owned by the grantor, and described by metes and bounds in the absence of apt and express terms, no specific way outside the limits of the land granted, if not properly an existing easement will pass as appurtenant. Oliver *vs.*Hook, 47 Md., 301; Butterworth *vs.*Crawford, 46 New York R., 349.

In Gale and Whatley on Easements, p. 59, it is said : “ In the case of Shury *vs.*Piggott, the court, by Dodridge, J., said: That a way if it were of convenience, *(voy de ease,)*is extinguished ‘ but not a way of necessity.’ And so it was the opinion of Topham, C. J., in the Lady Brown’s case.” See also the cases of Holmes *vs.*Goring, Buckley *vs.*Coles, James *vs.*Dods, and Holmes *vs.*Goring, pp. 81-85.

We also cite Washburn on Easements, 32, 33, 39, 40 and 164.

In Thayer *vs.*Payne, 2 Cush. 327, it was held that if the *156use of the drain was necessary t.o the beneficial enjoyment of the premises granted, the right to use it would pass, but the court added, “the settlement of this question will of course involve the inquiry whether or not a drain could be conveniently made with reasonable labor and expense without going through the plaintiff’s land. Because if the defendant can furnish his house with a drain, it cannot be necessary to the enjoyment of his estate that he should have a drain through the land of the plaintiff.”

We have quoted and cited these numerous authorities, and conclude with referring to the American Law Review, Vol. 4, pp. 49, 50, 52, 58 to 62 inclusive, and respectfully submit, in conclusion, that the relief sought by the complainant in his bill of complaint ought not to be granted ; that the injunction decreed by the Court in Special Term should be vacated, and the complainant’s bill be dismissed.

Mr. Justice Cox

delivered the opinion of the court. After stating the case he proceeded as follows :

The case presents some interesting questions connected with the law of easements. It is admitted on both sides that while Acker owned both houses, no easement in the proper sense could exist in behalf of one house against the other, because the very definition of an easement is “an accomodation which one man hath in the lands of another.” It supposes a separate ownership of the dominant and servient tenements. If an easement existed in this case at all, it arose in the very act of severance of ownership and conveyance of one house to Huyck. The deed of conveyance transfers the land “with the appurtenances.”

This easement must have been made an appurtenance, if at all, either by express grant or by implication. It is not claimed through any express grant; it must then have arisen through implication, if at all. That is, the sale must have been made under such circumstances that it was implied therefrom that this easement should pass.

The subject of easements by implication is a large one, *157and has been much discussed in decisions and text-books. The authorities are exhaustively considered in Washburn on Easements, page 60, and so on ; and the result of the decisions is the rule invoked by the complainant in this case, which is expressed as clearly, perhaps, as by any other authority, in the case of Lampman *vs.*Milks, 21 New York Reports, page 505, in the following language:

*“*The principle is that where the owner of two tenements sells one of them, or the owner of an entire estate sells a portion, the purchaser takes the tenement or portion sold with all the benefits and burdens which appear at the time of sale to belong to it as between it and the property which the vendor retains. This is one of the recognized modes by which an easement or servitude is granted. No easement exists so long as there is a unity of ownership, because the owner of the whole may at any time rearrange the qualities of the several parts. * * ***The parties are presumed to contract in reference to the condition of the property at the time of sale, and neither has a right of altering the arrangement then openly existing to change materially the relative value of the respective parts.”

Some authorities allude vaguely to the necessity of the easement to the granted property as an element. But the rule into which the authorities seem to have drifted takes no account of this necessity, but relies entirely upon the appearances created by the act of the grantor. The rule does not appear to be essentially different from the law of estoppel. The grantor, by holding out certain appearances to the purchaser, induces the expectation on his part that with the land purchased he is to receive certain privileges ; and it would be inequitable to defeat that expectation by afterwards denying them. This is exactly the law of equitable estoppel.

The cases, however, are not harmonious. The law is denied entirely by Judge Hoar, in Randall *vs.*McLaughlin, 7 Allen’s Reports. Other authorities discriminate between what are called apparent and continuous on the one hand, and discontinuous easements on the other*;*the former being *158
      *those*which are a constant and visible encroachment on the servient land, and the discontinuous easements being those which are only observable in their exercise, which is occasional, as a right of way over unenclosed land.

The application of the rule to ways is denied, in the case of Oliver *vs.*Hook, 47 Maryland Reports, 301, and other cases therein cited.

On the other hand, it is asserted in New York and Pennsylvania, and by Judge Story in The United States *vs.*Appleton, 1st Sumner, 500. A distinction is suggested in the case of Phillip *vs.*Phillip, 48 Pennsylvania, which may serve to reconcile these discrepancies. In that case the way was fenced in, and it may be well maintained that such a way is as apparent and continuous an easement as a drainpipe run over or under the land ; whereas a way having no visible boundaries may not be.

' If this distinction is just, the present ease comes clearly •within the general rule, because, as I have already stated, the way was bounded and marked by permanent enclosure, obvious to the most casual inspection.

But in what manner was this easement created, if at all ? Evidently by an act *in pais,*which consisted of such a location of the fences as to give the appearance of a permanent easement. It is conceded that if the fence had been restored to its original location before the sale, there would have been no easement in this alley. In this respect, this case resembles Coppy’s case, cited from the year books by Gail and Whatley, in their work on Easements. That was an action for stopping a gutter running from the building of the plaintiff over the adjoining building of the defendant, both buildings having first been owned by the same person, afterwards sold, one to the plaintiff, and the other to the defendant. The easement claimed was allowed ; but it was conceded that if the owner of both tenements, before selling either, had destroyed the gutter, and then sold, the gutter could not have been restored. And it would have made no difference in this case if, after closing the fence and then selling, the grantor had opened it again after sale under a *159license to use the alley. Can it make any difference if, instead of actually moving the fence and closing up the entrance to the alley, the grantor informed the purchaser that he intended to close up the alley, but would allow him its temporary use ? Is not such a declaration itself an act *in pais*equally operative to detach the apparent easement from the grant, with the actual removal of the fence ? We think it is. There would be plainly no estoppel in such a case, but the grantee is enlightened as to the purposes of the grantor, and an appearance which might otherwise have misled him is, by parol explained away, so that it is no longer a delusive appearance ; and as the purchaser is compelled to prove by parol the existence of this appearance, so the defendant may show by parol that the appearance was explained away at the time of sale. *

We think, then, that the easement claimed did not pass by the grant to Iluyck. If so, no subsequent circumstances in the case could have entitled his grantee to it. If an estoppel did exist in behalf of Huyck, his grantee, as privy in estate, could have availed himself of it. But as no estoppel existed, none could arise in behalf of Mr. McPherson. The license to Huyck which was all that he had, was essentially a personal privilege, and not assignable ; and would not pass by a conveyance of the land in connection with which it was used, and it was revocable at pleasure. This is the law, irrespectively of any knowledge or notice, on the part of Mr. McPherson.

But we are satisfied besides, that he had knowledge sufficient to put him on inquiry, and affect him with notice of the real facts. As far, therefore, as relates to the right of way through this alley, we are of opinion that the court properly denied the relief.

The right to the underground drainage stands upon a different footing. The principal cases under this head relate to easements of that kind. Coppy’s ease as already stated, was that of a gutter draining one tenement through another. Another leading case is that of Nicholas vs. Chamberlain, Cro. James, 121, *in*which it was held, upon demurrer, that *160
      *“*if one erect a house and build a conduit thereto in another part of his land, and convey away by pipes to the house, and afterwards sell the house with the appurtenances accepting the land, or sell the land to another, reserving to himself the house, the conduit and pipes pass with the house, because it is necessarily and *quasi*appendant thereto.”

But the most important case is that of Pyer *vs.*Carter, which was decided in 1857, in the Exchequer Chamber, and afterwards affirmed in the House of Lords, reported in 1st H. & Norm., 916.

*“*The owner of one house converted it into two. The one was conveyed to the defendant and afterwards the other to the plaintiff. At the time of the conveyance, a drain ran under the plaintiff’s house and then under the defendant’s house to a common sewer. The plaintiff’s house was drained through this drain, but he might have made a new one at a small expense. The court held that, under these circumstances, the plaintiff had an easement or drain through the defendant’s premises by an implied grant, and that the defendant was liable for stopping it.”

This case is a leading authority in England, and seems to be recognized by the weight of authority in this country.

The easement by drain-pipes was an apparent and continuous one, and falls clearly within the rule we have spoken of. The purchaser had the more reason for expecting it to continue in the fact that house No. 225 drained through pipes under the same alley, and no disturbance of the pipes from No. 228, by excavation or structures, could be made without destroying both. The difference in the facts between the drainage easement and the right of way is, that no notice was given by Acker of any intention to disturb the former. His conversation related entirely to the alley, which was a superficial right of way, and no allusion was made to the underground drainage, and nothing done to undeceive the purchaser as to his continued enjoyment of that easement.

The bill alleges and charges the defendant with intending to sink the foundations of the wails of his house into the *161earth, so as to cut through and stop these drains. While the" defendant denies that his intended improvements will have that effect, he asserts the right, substantially, to make such improvements as his interest may require. As the right thus asserted might be exercised too speedily to allow an injunction, we are not disposed to find fault with the decree below which settled the question in advance and prevents further litigation.

We do not feel called upon however to decide anything as to the right of the owner of house No. 223, to enter on the other premises to repair the drain. We affirm the decree as to the right of way through the alley, and so much of it as enjoins disturbance of drain-pipes under the alley connected with complainant’s house, and interference with complainant’s use of the same.