#### Ruth A. W. Coatsworth, Plaintiff, *v.*Charles C. Hayward and Maud Noble Harlan, Defendants.

(Supreme Court, Essex Trial Term,

November, 1912.)

Deeds — easements — vesting of title — right to use water of a spring —■ injunction.

A lease for ninety-nine years of the right to take water from a spring on lessor’s farm provided for the laying of a one-inch pipe from the spring, and contained the following covenant: “ That the party of the second part has the privilege of attaching a "half-inch pipe to the said main'pipe for the purpose of drawing water therefrom at any point between the dwelling-house of the party of the first part and the dwelling-house of the party of the second part. And it is further understood and agreed that the party of the second part has the privilege of using one-half inch of said water at her dwelling-house.” Said pipe was laid from the spring by the lessee and ran in the highway from the farm to a point opposite a red house owned by the lessee, and was tapped with a half-inch pipe, and the water conducted to a yellow house owned by the lessee’s brother, which lay between the farm and the red house, and thereafter he, to whom the lessee had never conveyed any interest in said spring water or its use, conveyed the yellow house and the appurtenances thereto by a deed which made no mention of any easement or right to use said spring water, and under similar deeds the title to said premises became vested in plaintiff. Thereafter the lessee of the spring conveyed the red house “ Together with all and singular the rights, privileges and easements of bringing water and using the same on the said premises appurtenant to the same and now enjoyed thereon,” to her son who by her direction disconnected said half-inch pipe, but the purchaser of the premises at auction had the pipe connected and water restored to the house.

In an action to restrain the grantee of the farm whose conveyance was made subject to the rights and covenants of the lease for ninety-nine years with plaintiff’s use of the spring, held, that said lease was a grant of the right to use the water in gross and was not appurtenant to the yellow house, and the lessee had the right to use the water of the spring to the capacity of the half-inch pipe without wasting and to change the connection to some other place between the points limited in the lease.

*195That the right to use the spring water in the yellow house, though a valuable convenience, was not a necessity to the reasonable use and enjoyment of the estate of the grantee though there was no other spring on the premises or reached therefrom by pipes.

That the deed of the yellow house containing no reference to the right to use water, and the grantee through whom plaintiff derived her title having stated while in possession of the premises that she understood that she had no right to use the water, except by her grantor’s permission, such statement was competent and relevant testimony with reference to the intention of the parties to the deed, in an action between third parties.

That the defendant owner of the red house was entitled" to an injunction against the use of the spring by the owner of the yellow house, and that the complaint should be dismissed.

Action for an injunction.

Stokes & Owen, for plaintiff.

Weeds, Conway & Cottér, for defendants.

Van Kirk.

This action is brought to restrain the defendant from interfering with plaintiff’s use of a spring situated on the farm of defendant Hayward. By the terms of a lease dated September 24, 1869, between David S. Hayward, the first party, and Laura A. ¡Noble, the second party, the second party is permitted to take water from a spring on the Hayward farm for the term of ninety-nine years. The lease provides for the laying of a one-inch pipe from the spring and contains the following: “And it is further agreed and understood by and between the parties to this agreement that the party of the second part has the privilege of attaching a half-inch pipe to the said main pipe for the purpose of drawing water therefrom at any point between the dwelling-house of the party of the first part and the dwelling-house of the party of the second part. And it is further understood and agreed that the party of the second part has the privilege of using one-half inch of said water at her dwelling-house. And it is mutually agreed and understood by the parties to this agreement that *196neither of the parties is to allow said water to run to waste on their premises or at any point where water is taken from said main pipe.”

At the time this agreement was made, David S. Hayward owned 'the hereinbefore mentioned farm. Laura A. Noble owned the red house and her brother Belden Welch owned the yellow house, which lay between the said farm and the red house. The inch pipe was constructed from the spring by Laura A. Noble and ran from the farm, in the highway, past the yellow house to á point opposite the red house. In connection with the laying of the inch pipe the same was tapped with a half-inch pipe and the water conducted to the yellow house.

The Hayward farm has since been conveyed, subject to the rights and covenants of the said lease to the defendant Hayward. Therefore the defendant Hayward cannot interfere with the use of the said spring and the maintenance of the pipe line thereto, if the use and maintenance are in accord with the terms of said lease, by any person or persons succeeding to the rights of Laura A. Noble. Hnder the lease an easement appurtenant to the red house, then owned by Laura A. Noble, came into existence and Laura A. Noble has conveyed the red house together with said easement. In the deed dated December 31, 1892, Laura A. Noble to Henry H. Noble, is the following: “Together with all and singular the rights, privileges and easements of bringing water and using the same on the said premises appurtenant to the same and now enjoyed thereon.” This is a grant of the right to use water through the half-inch pipe drawn from the said inch main as then used in the red house. Cady v. Springfield W. W. Co., 134 N. Y. 118, 120. So that the defendant Harlan is the owner of the red house and of the said easement appurtenant thereto.

Laura A. Noble became the owner of the yellow house by deed dated July 3, 1876, in which no mention of any right to use water from the spring is made; and by no writing or otherwise had Laura A. Noble ever conveyed to Belden Welch any interest in said spring water or its use. By deed dated Hay 22, 1882, Laura A. Noble conveyed to Sarah E. *197M. Wait, her daughter, the yellow house, without any mention of any easement or right to use said spring water, but the deed contains the usual clause that the premises are granted with the appurtenances thereunto belonging. After the death of Mrs. Wait, the yellow house went by mesne conveyances to this plaintiff and none of the conveyances in terms carries any right to take water from said spring, unless covered by the general clause that the premises are conveyed with the “ appurtenances thereunto belonging.” Henry H. Moble disconnected the pipe on or about October 22, 1892, under the direction of his mother, Laura A. Moble. In 1894, when Richardson went into occupancy of the house he had the pipes connected and the water restored to the house. The water since then has been used in the yellow house until the time complained of in the complaint. The grant in the lease that the second party “ has the privilege of attaching a half-inch pipe to the "said main pipe for the purpose of drawing water therefrom at any point between the dwelling-house of the party of the first part and the dwelling-house of the. party of the second part ” was a grant of the right to use the water in gross and not appurtenant to the yellow house. 14 Cyc. 1140; Linthicum v. Ray, 76 U. S. 241, 243. The grant was to Laura A. Moble and under that grant Laura A. Moble had the right to use the water to the capacity of the half-inch pipe without wasting. Cady v. Springfield W. W. Co., 134 N. Y. 118; Nellis v. Munson, 108 id. 453. She had the right to allow her daughter to use this water if she saw fit, or she had the right to change the connection to some other place between the points limited in the lease. Such a right, may be held separate from any particular piece of land, and it may be retained by the grantee or conveyed as an appurtenance to land. Bank of British North America v. Miller, 6 Fed. Rep. 545. If Laura A. Moble has ever parted with that right, it must have been by the deed to her daughter, Mrs. Wait. Whether or not this conveyance transferred said right in gross depends upon the intent of the parties to the deed. Id.; Watson v. City of New York, 67 App. Div. 573; affd., 175 N. Y. 475. If the right is one necessary and essential *198to the enjoyment of the property, the intent to convey is presumed (Lampman v. Milks, 21 N. Y. 507) ; and, without a recital in the deed showing it is excluded, or other competent and satisfactory evidence that the parties intended to exclude it, such necessary and essential right would pass with the conveyance as an appurtenance, under the general expression, “ appurtenances thereunto belonging.” Root v. Wadhams, 107 N. Y. 384, and cases cited. But the right to use this spring water in the yellow house is a valuable convenience; it can hardly be denominated a necessity to the reasonable use and enjoyment of the estate granted to Mrs. Wait. It is true there is no other spring upon the premises, or reached from the premises by pipes. Lake Champlain can be reached, or a well dug. Residence properties are not generally supplied with spring water.

But in any event the intent of the parties controls, and the said presumption, if it exists in this case, may be rebutted by parol. Watson v. City of New York, *supra.*A conversation has been related in which it is stated in substance that Laura A. Eoble declared that Mrs. Wait had no right to use the water except by her (Noble’s) permission, and Mrs. Wait, then in possession, replied, “ I understand that.” It is urged that on cross-examination the witness gave another meaning to his testimony, but a careful reading of all will disclose that this is the substance and his meaning. This statement of Mrs. Wait, while she was in possession of the premises, is competent and relevant testimony with reference to the intention of the parties to the deed in question, in an action between third parties. Chadwick v. Fonner, 69 N. Y. 404, 407; Lyon v. Riker, 141 id. 225; Merkle v. Beidleman, 165 id. 21. In the deed of the red house the right is specifically granted. This fact has some significance in considering the deed of the yellow house to Mrs. Wait, which contains no reference to the right to use water.

• I conclude that this right in gross was not conveyed to Mrs. Wait.

Eo title to this right in gross has been acquired by the owner of the yellow house by prescription.

On October 22, 1892, E. K. Richardson bid in the yellow *199house at an auction sale., The water was then cut off. At the time he bid in the property, he knew that water from said spring had been used in the house, and supposed it was then so rightfully used. After he made his first payment he discovered that the half-inch pipe had been disconnected in the highway opposite the yellow house. He still completed his payments and took the property. Under the circumstances the easement did not pass to Richardson. Jones Ease., § 25. Kor could the easement pass by any subsequent conveyance, unless it passed by the deed to Mrs. Wait. Spencer v. Kilmer, 151 N. Y. 391; Green v. Collins, 86 id. 246. While it is true that the existence of the piping and supply of water from the spring to the yellow house is to be fairly construed as an inducing cause for the purchase thereof by the plaintiff, and the plaintiff undoubtedly hoped that such right existed, she was warned by the deed from Wamsley that there was a question as to the right, because in said deed it is expressly excepted from the warranty and the grantor, Wamsley, assumed to convey only such rights as he had in and to said spring.

The defendant Harlan is entitled to an injunction against plaintiff’s use of the spring.

The complaint should be dismissed, with costs. A decision may be submitted in accordance herewith.

Complaint dismissed, with costs.