#### Gertrude St. John Wood, Appellant, *v.*The Village of Richfield Springs, Respondent.

Third Department,

July 1, 1914.

Vendor and purchaser — real property — conveyance of land to village for water purposes — contemporaneous agreement giving vendors right to use water — parol evidence of contemporaneous agreement not varying deed — Statute of Frauds—water right to vendor not personal.

A village purchased a portion of a tract of land for the purpose of conducting some water pipes across the same and of obtaining the use of certain springs thereupon. The deed recited a money consideration, but at the time the pipes were laid the main pipe was tapped and water taken to the buildings of the vendors, which privilege one of them testified was a part of the consideration. Later, after the original vendors had sold the land, the village relaid its pipes and cut off the connection with the buildings upon said land. In a suit by the purchaser from the original vendors to enjoin such action upon the part of the village, held, that a judgment should be granted as prayed for in the complaint, with nominal damage for the withholding of the water and with costs;

*104That parol evidence of one of the vendors as to the contemporaneous agreement was not incompetent as tending to vary the terms of the deed;

That the'defendant is notin a position to object to the contemporaneous agreement because it was not in writing as required by the Statute of Frauds;

That the water right given to the original vendors was not personal, but was a necessary incident to the enjoyment of the land, and passed with it to the subsequent vendee.

Appeal by the plaintiff, Gertrude St. John Wood, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Otsego on the 24th day of September, 1913, dismissing the complaint and vacating an injunction heretofore granted upon the report of a referee appointed to hear and determine the issues.

*Arnold & Cooke [Lynn J. Arnold*with them on the brief], for the appellant.

*William T. Welden [Louis E. Walrath*of counsel], for the respondent.

Smith, P. J.:

Upon the 3d day of Ifay, 1879, three sisters, Catherine M. St. John, Sarah A. St. John and Martha St. John, were owners of a parcel of land outside of the village of Richfield Springs. The village of Richfield Springs desired to purchase a strip of this parcel of land for the purpose of conducting some water pipes across the same, and of obtaining the use of certain springs thereupon. Upon the day named the three sisters executed a deed to the village of Richfield Springs of a strip of land containing about four and twelve one-hundredths acres, upon which its pipes were afterwards laid and a reservoir built for use as water works to supply the village of Richfield Springs. That deed is recited to be in consideration of $700 to the grantors and duly paid. At the time that the pipe was laid upon this land the main pipe was tapped and water taken to the buildings of the grantors. The evidence of one of the grantors, un contradicted, is to the effect that they paid nothing for it, and that it was part of the consideration of the deed that they should have the use of the water. Thereafter, in 1908, after the original grantors had parted with their land to the *105plaintiff, the village of Richfield Springs relaid its pipes and cut off the connection with the buildings upon the land. This action is brought to enjoin such action upon its part, the plaintiff claiming the right to the use of said waters under the agreement made with her grantors at the time the land was sold.

The learned referee has denied relief to the plaintiff upon three grounds: *First,*upon the ground that proof of the contemporaneous agreement, by the evidence of one of the grantors, was incompetent because it tended to vary the stipulations of the deed. In this holding we think the referee erred. In *Rozier*v. *Buffalo, N. Y. & Phila. R. R. Co. (15*Wkly. Dig. 99) the plaintiff sought to compel the defendant to build a crossing over its road at a stated place on plaintiff’s farm, and to fence its road through the plaintiff’s farm. This agreement was shown to have been made at the time that the land was deeded to the defendant by the plaintiff. It was there held by the General Term of the Fourth Department that the execution of the deed was but a part performance of the agreement, and that the oral testimony introduced to prove other parts of the contract did not contravene the rule that parol evidence was inadmissible to contradict or vary a written instrument. The same rule would seem to be held in *Witbeck*v. *Waine*(16 N. Y. 532); *Juilliard*v. *Chaffee*(92 id. 535); *Chapin*v. *Dobson*(78 id. 74). The case of *Rozier*v. *Buffalo, N. Y. & Phila. R. R. Co. (supra)*is to my mind precisely parallel to the case at bar, and in the absence of overruling authority is determinative of the question here presented.

The second ground upon which plaintiff has been denied relief is that such a contract is void by the Statute of Frauds, because not in writing. If, however, the contract was a part Consideration of the transfer of the land it does not rest with the defendant to say that it will hold this land and will not perform the contract because not evidenced by a writing. That would be to make use of a Statute of Frauds as an instrument for fraud, and not a use thereof contemplated within the authorities. Whatever right the defendant might have by reason thereof to avoid the whole transaction it cannot take advantage of the part favorable, even though in writing, and *106reject another part of the contract unfavorable because not in writing.

The third ground upon which plaintiff has been denied relief is that the right given was personal and expired with the ownership of the grantors, and did not pass to this plaintiff as a grantee of the original grantors. The right to the use of this water upon the premises, however, would seem to be a necessary incident to the enjoyment of the farm. Some of the springs had been taken upon the farm. The water was piped to the corner of the bam, primarily apparently for the use of the stock used upon the farm. Upon the sale of the farm the right to this water would materially enhance its value. From these circumstances there is no reason to believe that the right was ever given as a personal privilege, and there is every reason to believe that it was a right so far attached to the land as to pass with the land in perpetuity. There can be no difficulty in defining the extent of the right. If the connection were made at the time the water works were originally put ip. and by the servants of the village, who put in those water works, this constitutes a practical construction of the extent of the use as far as the size of the pipe is concerned. The right to the use of the water upon the farm would be confined to ordinary and domestic use, such as is frequently given, and has never been found incapable of definite limitation. The testimony of the only surviving grantor as to the right given at the time of the purchase is strongly corroborated by the continued use of the water from the time of the giving of the deed for twenty-nine years, until the pipes were renewed, and the defendant can have little cause of complaint if the courts compel the continuance of the service.

The judgment should, therefore, be reversed on law and facts, with costs, and judgment granted as prayed for in the complaint, with nominal damage for the withholding of the water, and with costs. This court finds from the evidence that at the time of the sale of the land to the defendant there was a collateral agreement not embodied in the deed, giving the right to the owners of the land, whoever they might be, to make use of said water for domestic purposes through pipes no larger than those used for such connection from 1879 to *1071908, and that the defendant threatens to sever said pipes and deprive the plaintiff of the benefit of the water therefrom.

All concurred; Lyon, J., not sitting.

Judgment reversed on law and facts, with costs, and judgment granted as prayed for in the complaint, with nominal damage for the withholding of the water, and with costs. The court finds from the evidence that at the time of the sale of the land to the defendant there was a collateral agreement not embodied in the deed giving the right to the owners of the land, whoever they might he, to make use of said water for domestic purposes through pipes not larger than those used for such connections from 1879 to 1908, and that the defendant threatens to sever said pipes and deprive the plaintiff of the benefit of the water therefrom.