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GOODRICH 2. BURBANK.
SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1866.
[Reported 12 Allen, 459.] Foster, J. This action of tort is brought to recover damages for the acts of the defendant on his own land, who has cut off a pipe hy which water was conducted from a spring thereon, and has contaminated the water which flowed through said pipe to the plaintiff's premises. The lot on which the spring is situated was part of a farm owned by Thomas F. Plunkett, and conveyed to the defendant by Plunkett by a deed dated March 27th, 1850, containing the following clause: “ Also reserving to myself, my heirs and assigns, the right of taking so much water forever froin the spring situate on the lot last above described, and from which water is now taken in a pipe to supply the grounds of W. H. Tyler, as now runs in said pipe, so long as said pipe lasts, together with the right to replace the same with a pipe of one and one quarter inch inside calibre, and also the right of taking so much water from said spring as will run in said pipe of one and one quarter inch calibre, when thus substituted for the present pipe, together with the right to enter and repair said aqueduct at all times, it being understood that I am to pay such damages as may be from time to time occasioned to the crops and land by said repairs, and said Burbank, his heirs and assigns, is not to molest said Plunkett, his heirs and assigns, in the use of the above reserved rights.” At the date of this deed, the pipe was laid as it now is through the defendant's estate, and conducted water to the premises of W. H. Tyler. No part of Plunkett's remaining estate was then or ever had been supplied with water from this aqueduct. It is therefore improbable that the reservation was intended for the exclusive benefit thereof. Plunkett had given to Tyler no right, but the latter bad only a revocable license from Plunkett's predecessor to the use of the aqueduct; and there is no reason to suppose that Plunkett intended to annex the reservation to the estate of a stranger, if that were possible. The language used is broad and unqualified. The right is reserved to Plunkett, his heirs and assigns, and not to the assigns of his remaining estate. There is no restriction as to the place where or the purpose for which the water might be used, but only as to the quantity reserved. We are therefore satisfied that Plunkett intended to retain for himself, his heirs and assigns, a right, the enjoyment of which was limited to no particular premises, capable of being used upon any land which he or they might at any time acquire, an assignable and inheritable interest, not annexed to any parcel of land. If the rules of
law permit the acquisition of such a right by reservation or grant, we cannot doubt that it has been effectually created in the present instance. And if so, it must inure to the benefit of the present plaintiff, who has derived it by warranty deed from Plunkett through divers mesne conveyances.
But the defendant insists that such an interest is a predial servitude, in its nature inseparably annexed to some estate, apart from which it cannot be enjoyed ; that if regarded as an easement in gross, it is necessarily of a purely personal character, incapable of assignment or inheritance, belonging to Plunkett alone for his personal benefit.
This proposition requires examination. There are dicta, perhaps authorities, to the effect that an easement proper, like a way in gross, cannot be created by grant, so as to be assignable or inheritable. Washburn on Easements, 80. Ackroyd v. Smith, 10 C. B. 187. However the law may be elsewhere, it would be difficult to establish that doctrine in this Commonwealth, where it has been held that ways in gross“ may be granted or may accrue in various forms to one, his heirs and assigns ;” White v. Crawford, 10 Mass. 188; and that " the law is settled in Massachusetts, by a series of decisions, that a right of way may be as well created by a reservation or exception in the deed of the grantor, reserving or retaining to himself and his heirs a right of way either in gross or as annexed to lands owned by him so as to charge the lands granted with such easement and servitude, as by a deed from the owner of the land to be charged, granting such way either in gross or as appurtenant to other estate of the grantee.” Boven v. Conner, 6 Cush. 137.
In the case of rights of profit à prendre, it seems to be held uniformly that, if enjoyed in connection with a certain estate, they are regarded as easements appurtenant thereto, but if granted to one in gross they are treated as an estate or interest in land, and may be assignable or inheritable. Post v. Pearsall, 22 Wend. 425; Washburn on Easements, 7. The right to take water from a well or spring is held to be an interest in land, although not a profit à prendre, and may be claimed by custom. Race v. Ward, 4 El. & Bl. 702. And we are aware of no case which denies that the right to an aqueduct may be so created as to exist independently of any particular parcel of land owned by the grantee thereof, and be enjoyed by him and his heirs on any estate which he or they may own or acquire, and be capable of assignment or conveyance in gross. The water itself may not be the subject of property, but the right to take it and to have pipes laid in the soil of another for that purpose, and to enter upon the land of another to lay, repair and renew such pipes, is an interest in the realty, assignable, descendible and devisable. On this subject the language of Judge Curtis is as follows: " I know of no rule of the common law which prohibits grants of the incorporeal right to divert water from being made in gross. If I have a spring, I may sell the right to take water from it by pipes, to one who does not own the land across which the pipes are to be carried, and I may either restrict the use to a particular house, or not, as I please. It is true the grantee cannot make the grant useful without acquiring from the owner of the intermediate land the right to lay pipes therein, nor can he use the water in a house until he obtains the right to possess that house. But these may be acquired afterwards. Incorporeal rights may be inseparably annexed to a particular messuage or tract of land, by the grant which creates them, and makes them incapable of separate existence. But they may also be granted in gross, and afterwards, for purposes of enjoyment, be annexed to a messuage or land, and again severed therefrom by a conveyance of the messuage or land, without the right, or a conveyance of the right without the land.” Lonsdale Co. v. Moies, 21 Law Rep. 664.
We have many cases in our own reports which recognize the right to take a certain quantity of water from a mill pond as a distinct and substantive subject of grant, without restriction as to its use at any designated place. Rights of water duly granted by deed, not appurtenant to any particular parcel of land, may be used by the owner at any place or in any manner, so long as he does not interfere with or impair the rights of others. De Witt v. Harvey, 4 Gray, 486. We are unable to distinguish between the right to take water by a canal from a pond for the purposes of power, and the right to take it from a spring in a pipe for domestic purposes, the watering of cattle, to supply an artificial jet or fountain, and to sell it to others for any uses they may desire to make of it.
In the present case it does not appear that the change in the direction or location of the pipe after it leaves the land of the defendant has increased the quantity of water taken from the spring. We are therefore of opinion that this action can be maintained ; and, the judge who presided at the trial in the Superior Court having ruled otherwise, the exceptions are sustained.
W. H. Swift (M. Wilcox with him), for the plaintiff.
AMIDON v. HARRIS.
[Reported 113 Mass. 59.] Bill in equity against Lucian Harris, Mary A. Harris his wife, and Harriet Bugbee.
The bill alleged that the plaintiff was seised in fee of a lot of land with a dwelling-house upon it lving between the mansion-house which once belonged to one Charles Negus, deceased, and a lot called the spring lot, which was also once his property ; that Negus sunk a well
upon the spring lot; that this well was supplied by a spring which furnished water abundantly sufficient to supply the wants of Negus's estate and of some six other estates in the vicinity ; that Negus constructed an aqueduct and conveyed water from the well to his house, and that Negus and the plaintiff's husband, Rufus Amidon, who was then seised of a life estate as tenant by the curtesy in the plaintiff's land, and who had since died, executed the following indenture :
“ This indenture made and executed this 1st day of January, A. D. 1819, by and between Charles Negus, of Webster, in the county of Worcester and Commonwealth of Massachusetts, physician, of the one part, and Rufus Amidon, of the same Webster, of the other part, Witnesseth:
"That whereas the said Negus, being the owner of a certain spring of water situated in said Webster, has brought and is still bringing water therefrom by means of an underground pipe running from said spring to the premises now occupied by him in said Webster, and whereas it is his intention to dispose of privileges to use said water so conveyed as aforesaid, to such individuals as may desire to purchase the same: And whereas the said Amidon is desirous of obtaining the right of using the said water upon the premises of him the said Amidon, situate in said Webster: Now, therefore, the parties hereto have mutually covenanted and agreed as follows, to wit:
"First. The said Negus, for himself, his heirs and assigns, doth covenant and agree to and with the said Amidon, that he, the said Amidon, his heirs and assigns, may at any and all times hereafter, so long as water shall run from said spring through said pipe as aforesaid, draw from the main pipe of said Negus, at a point agreed upon by the parties, so much water as shall be necessary for the supply of the family or families resident in the house now owned by said Amidon.
" Second. And the said Amidon doth hereby covenant and agree to and with the said Negus, that he will pay to the said Negus for the right of water so granted to him as aforesaid, the sum of fifty dollars, to be paid upon the execution of this instrument, and that he will, and bis heirs and assigns shall, pay his or their proportion of any and all espenses which may hereafter accrue for the repair of the main pipe, the whole of said expenses to be proportionately borne by all those who sball use the said water ; that is to say, that at each and every time that the main pipe shall become out of repair, the expense of repairing the same shall be divided into as many equal parts as there may be houses supplied with water from said main pipe, and the owner of each house shall pay one part.
** Third. And the said Amidon for himself, his heirs and assigns, aoth further covenant and agree to and with the said Negus, his heirs and assigns, that he or they will lay down and keep in repair at bis or their own proper cost and charge a branch pipe leading from said main pipe to the house of said Amidon ; that he and they will use the said water so granted as aforesaid in an economical manner, and not suffer the same to be uselessly wasted or extravagantly expended.
“In witness whereof, the parties have hereunto set their hands and seals, the day and year first above written.
“Charles Negus. [L. s.]
- Rufus Amidon. [l. s.]." The bill then alleged that the plaintiff was, by conveyance from the heirs of her husband, the owner of the right granted to him by this indenture ; that her husband laid a branch pipe from the main pipe to her house ; that she and her husband drew from the pipe all the water necessary for the house; that they had always paid their proper proportion of the expense of repairing the main pipe; that Negus afterwards granted similar rights to take water to six other persons; that there was always abundance of water for the plaintiff and the six other grantees; that Negus devised his mansion-house estate to the defendant Mary A. Harris ; that the spring lot had by conveyances (which were set forth in the bill) become the property of the defendant Lucian Harris ; that Lucian and Mary Harris had empowered the defendant Bugbee and others, who owned estates situated upon a lower level than the plaintiff's estate, to extend the main pipe to their estates, and had thus enabled them to draw water from the spring when the plaintiff and the other grantees of Negus were suffering from its want; that for four months before the filing of the bill the plaintiff had been almost wholly deprived of water, and had been obliged to obtain a supply elsewhere; that she had called upon the defendants to desist from the unlawful taking of the water, but that they had refused, and had threatened to continue the taking. The bill prayed for an injunction and for general relief.
The defendants demurred generally, for the want of equity.
ENDICOTT, J. This indenture conveyed to Rufus Amidon, his heirs and assigns, the right to draw and take so much water from the main pipe running from the spring to the mansion-house of Charles Negus, as was or should be necessary for the supply of the families resident in the house described as owned by Amidon. This right was to continue so long as the water should run from the spring through the main pipe. At the date of the indenture Amidon did not own the premises on which the house stood, but occupied them with his wife, the present plaintiff, who then as now held them in fee in her own right. The defendants, who own the estate of Negus, subject to all the rights conveyed to Amidon, contend that the indenture conveyed an easement appurtenant to the estate of Amidon in the premises ; and that, as his estate expired with his life, so did the easement.
But we do not think this the true construction of the indenture, or that such was the character of the interest conveyed. The indenture conveys an easement in gross to take a certain amount of water from