Gray v. City of Cambridge , 189 Mass. 405 ( 1905 )

Loring, J.

[After the foregoing statement of the ease.] We are of opinion first, that the master’s construction of the Stearns grant is substantially correct; and second, that pipes laid under this grant can be used as supply pipes only and cannot be used as distribution pipes.

What are the terms of the grant ? They are (1) “ to enter upon a strip of land fifteen feet wide,” which strip of land is (2) “situated in said Cambridge and lying between Reservoir Street and land of Josiah Coolidge,” (3) “ for the purpose of laying one or more water pipes,” which pipes are to be used (4) “ for conveying water from Fresh Pond to the city reservoirs on said street [Reservoir Street],” and (5) “of examining, repairing and relaying the same whenever necessary.”

The question comes down to this : For what purpose were these words inserted: “ for conveying water from Fresh Pond to the city reservoirs on said street ” ? and what effect is to be given to them?

They were not inserted to describe the termini of the fifteen foot strip. That was stated fully elsewhere. There is the previous description of the fifteen foot strip as a strip of land “lying between Reservoir Street and land of Josiah Coolidge,” and the subsequent delineation of it in the plan referred to in the deed. Moreover, as a description of the terminus ad quern it is inaccurate. Mr. Stearns’s ownership extended only to Reservoir Street; it did not extend across the street to the reservoir.

In the second place these words were not inserted to state the use to be made of the fifteen foot strip. That is stated by the words immediately preceding the clause in question, to wit, “ for the purpose of laying one or more water pipes ” in it, the fifteen foot strip.

We see no escape from the conclusion that these words were inserted as a description of the use to be made of the pipes to be laid in the strip. That use is “ for conveying water from Fresh Pond to the city reservoirs on said street.” That is to say, these pipes are not for general use in the water system of the city, but for the narrower use of conveying water from the supply to the reservoir which is the initial point of distribution. Pipes which are to convey water from the source of supply on a low level to *a reservoir on a higher level, which reservoir includes a standpipe to enable the water to reach houses higher than the level of the reservoir, for convenience may be termed (as they have been termed in this opinion) supply pipes. Those which take the water from the reservoir (including the standpipe as part of the reservoir) are or may be termed distributing pipes. The limitation “ for conveying water from Fresh Pond to the city reservoirs ” is in effect a provision that the “ water pipes ” to be laid in the fifteen foot strip are to be used as supply pipes, thereby excluding their use as distributing pipes, as they are now exclusively used.

The defendant city in effect claims that in spite of the words “ for conveying water from Fresh Pond to the city reservoirs on said street,” it can use these pipes for any purpose in the water system of the city; that the reservoir was a mere resting place for the water on its way from the supply to the consumer, and the pipes can be used to convey water to the consumer.

So far as we can see, no effect is given to the words in question if that construction is adopted ; and unless we can read the words “ for the purpose of conveying water from Fresh Pond to the city reservoirs ” on Reservoir Street to mean or to include “ for the purpose of conveying water from the city reservoirs, wherever situated, to the consumers,” the use now made is not covered by the grant. In our opinion the words cannot be so read.

The explanation of the whole matter seems to be found in a suggestion of the plaintiffs’ counsel that ordinarily distribution mains are laid in public streets and in public streets only. The unexpected however turns out to be the event in the case at bar, and it has become convenient now for the city to utilize these supply pipes as a link in the distribution system starting from the new reservoir. This remote contingency did not occur to the city when it made its bargain with Mr. Stearns in 1866, and, by the terms of what was then agreed upon as the trade struck between them, such a use was not included.

It remains to consider the several arguments put forward by the defendant on this point.

The defendant has argued in the first place that the easement is a perpetual one. But if the city thought that it might keep the reservoir at the corner of Reservoir and Highland Streets for' an indefinite time, it was necessary to stipulate for a perpetual easement. There is nothing inconsistent in the easement being made perpetual and being limited to the special purpose of being used as a supply pipe. This fact therefore is not in our opinion significant. Neither is it significant that there is no condition attached to it. Being an easement it is not capable of seisin ; it lies in grant, not in seisin. For that reason no condition could be attached. The land subject to the easement continues to be the land of the grantor of the easement. He cannot re-enter on himself. The fact that there is no clause reserving to the grantor what is not granted is equally without significance. A proper way of limiting an easement is to specify the purposes for which it is to be used. If an easement is so limited, the land subjected thereto cannot be used by the grantee of the easement for any other than the purpose named. As well might it be argued that when a life estate is carved out of a fee it is not enough that all that is granted is a life estate, in order that the reversion should be preserved to the original owner. For the same reason it is of no importance that the words “ for no other purpose whatsoever ” found in the grant of 1856 are omitted from the grant in question.^* It is enough if an easement is limited to a specific purpose. It never is necessary in a legal conveyance in addition to saying that A is white to add that it is not black. Finally, the defendant argues that if the grantor had intended that the easement should cease in case the city ceased to use the reservoir, it should have said so. But in that event the easement did not cease unless it was made appurtenant to, the land on which the reservoir was built (upon which we do not find it necessary to express an opinion). The easement continues' in legal contemplation, to wit, the easement to maintain pipes in the fifteen foot strip for the purpose of conveying water from Fresh Pond to the reservoir. So long as the defendant has no reservoir nothing can be done under the easement, but the easement continues. The city hereafter may erect a new reservoir on the same site. Whether the city can continue the pipes under this continuing easement after razing the reservoir to the ground is another matter.

The defendant gets no assistance by citing Gloucester Water Supply Co. v. Gloucester, 179 Mass. 365, as to the right of the water company to dam the waters of Little River for a water supply under a vote made by the town of Gloucester in 1682 that “Jacob Davis and others joyning along with him hath liberty of the streame at the head of Little River to sett up a saw milne.” The ground of the decision on that point is stated at pp. 379, 380, to be: “It is well settled that the rigid rules of construction which are applicable to modern conveyances are not to be applied to transactions of the kind in question, which took place early after the settlement of the country, when conveyancing was little understood. Adams v. Frothingham, 3 Mass. 352. Stoughton v. Baker, 4 Mass. 522. Green v. Putnam, 8 Cush. 21, 25. For the same reason, the easement granted was not limited to damming the waters of the stream for the purpose of running a saw mill. Adams v. Frothingham, 3 Mass. 352.”

The master in our opinion was wrong in ruling that the use of these pipes for high service was not within the grant. He construed the clause in question to forbid the use of these pipes for conveying water unless that water went into one of the two basins of the reservoir. This was not the case when the high service was in operation, as is explained in the master’s report. When the high service was in operation, the water was pumped against the column of water in the standpipe directly into one or another distributing main. But the standpipe was as much a part of the reservoir as the two basins. It is patent that one, if not the main, purpose of getting the new fifteen foot strip was to introduce the high service. Water which flowed into the bottom of the standpipe through the twenty-four inch supply pipe and out of it through the twenty-four inch distributing main while the high service was in operation, was without question water conveyed to the reservoir within this grant. In our opinion no distinction can be made between water pumped through the bottom of the standpipe while the high service was in operation and water pumped under the pressure of high service into the distributing mains at the connections in Reservoir Street, in the immediate neighborhood of it.

We do not find it necessary to consider whether these words permitted the city to convey water from the pond to connections with distributing mains short of but in the immediate vicinity of the city reservoir on Reservoir Street, when those same mains are also connected with the outlets of the reservoir.

If we assume in favor of the defendant that such a use was a wrongful one, it is plain that it has not ripened into a prescriptive right to use the pipes.

The defendant city’s claims to this prescriptive right are: First. Since its acts have not been clandestine, it is not necessary for it to show that Mr. Hooper had actual knowledge or is chargeable with knowledge. It is enough that he had the means of knowledge of which he ought to have availed himself. Secondly. That on the evidence the master should have found as a fact that Mr. Hooper ought to have known of the use in fact made.

The foundation of the establishment of a right by prescription is the acquiescence on the part of the owner of the servient tenement in the acts which are relied on to establish the easement by prescription. This makes it necessary that he should know of those acts or be charged with knowledge of them if he did not in fact know of them. The point has been settled in cases where a party has undertaken to establish a prescriptive right to maintain drains or other appliances under the ground. In such case he must be shown to have known or to be chargeable with knowledge, if he did not in fact know of the use made. Carbrey v. Willis, 7 Allen, 364. Hannefin v. Blake, 102 Mass. 297. Union Lighterage Co. v. London Graving Dock Co. [1901] 2 Ch. 300; [1902] 2 Ch. 557. Gately v. Martin, [1900] 2 Ir. 269. See also in this connection Deerfield v. Connecticut River Railroad, 144 Mass. 325, 338; Ludlow Manuf. Co. v. Indian Orchard Co. 177 Mass. 61, 63.

We see nothing in Poignard v. Smith, 6 Pick. 172, much relied on by the defendant, inconsistent with this. The owner of the servient tenement cannot avoid the effect of twenty years’ adverse user by showing that he was out of the country and so did not in fact know of the acts. A servient owner in that condition comes within the second branch of the rule that he is chargeable with knowledge.

The finding of the master as to what Mr. Hooper knew or was chargeable with knowing went further, but included a finding on the point which we decide was material. We see no reason for disturbing the master’s finding upon these questions. We agree with the conclusion reached by him.

There must be a decree for the plaintiffs on terms to be settled by a single justice. The interests of the public are concerned in the peremptory shutting off of the water asked for by the plaintiffs. Subject to such modification as may be called for by those public interests, the plaintiffs are entitled to a decree with costs in accordance with the prayer of their bill.

So ordered.

* The deed from Stearns to the Cambridge Water Works was dated May 5, 1856, and began as follows: “Know all Men by these Presents That I, William G. Stearns of Cambridge, in the County of Middlesex and Commonwealth of Massachusetts, Esquire, in consideration of one thousand dollars to me paid by the Cambridge Water Works, a corporation established by the laws of said Commonwealth, the receipt whereof is hereby acknowledged, do hereby grant and convey to the said Cambridge Water Works a right to enter upon a strip of land ten feet in width and extending from the Reservoir of said Corporation in Cambridge to land of Josiah Coolidge, for the purpose of laying one or more water pipes to connect the said Reservoir with Fresh Pond, and of examining, repairing, and relaying the same when necessary, and for no other purpose whatsoever.”

The deed from Stearns to the defendant was dated December 25, 1866, and began as follows: “Know all Men by these Presents That I, William G. Stearns of Cambridge, in the County of Middlesex and Commonwealth of Massachusetts, in consideration of two thousand dollars to me paid by the City of Cambridge in the Commonwealth aforesaid, the receipt whereof is hereby acknowledged, do hereby grant and convey to the sd City of Cambridge, its successors and assigns, the right to enter upon a strip of land fifteen feet wide, situated in said Cambridge and lying between Reservoir St. and land of Josiah Coolidge, for the purpose of laying one or more water pipes for conveying water from Fresh Pond to the City Reservoirs on said Street, and of examining, repairing and relaying the same whenever necessary.”