Munsion v. Reid , 11 N.Y. St. Rep. 798 ( 1887 )

Landon, J.:

The deed from Williams to Griswold, in 1845, of the lot now owned by defendant, was the first conveyance by the common grantor of any of the lots affected by the drain. If that deed cut off or excluded the right of drainage from the lot subsequently conveyed by Williams to the plaintiff’s grantor, then, no matter what right Williams attempted to convey, he conveyed no right of drainage across defendant’s lot, for he had none to sell.

This was an underground drain and was not open and visible,’ and therefore bears no relation to such visible and opeii watercourses as the common owner of a parcel of land may create upon it, and then subdivide it and sell the subdivisions to different owners. In such a case, the artificial water-course, among the several purchasers, is governed by the same rule as a natural water-course (Lampman v. Milks, 21 N. Y., 505; Roberts v. Roberts, 55 id., 275.) But an underground drain which is not apparent to .the purchaser from the common owner, is not governed by the same rule. (Butterworth v. Crawford, 46 id., 349.) The grantee, in such a case, takes his land according to the terms. of his deed; he has the right to suppose that the apparent condition is the real one, and if the deed gives no notice of any right in favor of the lot retained by the grantor upon or across the lot conveyed, the latter lot is freed from the servitude. The grantor cannot both sell his right and keep it. (Id.; Outerbridge v. Phelps, 13 Jones & S., 555.)

The clause in the deed from "Williams to Davidson, referring to a drain, gives no notice that the defendant’s lot is burdened by a servitude in favor of the grantor’s lots on the west; the language is clear and distinct to the effect that the defendant’s lot is benefited by the right to have the use of the drain leading from it through another lot of the grantor to Orange street, but there is not one word of intimation that it is burdened by any servitude in favor of the grantor’s lots on the west. It is significant that the benefit conferred is expressed, and that the servitude claimed is suppressed.

Plaintiff’s grantors obtained no right over the defendant’s lot from any grant of "Williams. The plaintiff acquired no right by virtue of the priority of the record of his deed. The defendant’s lot has been actually occupied since 1845, by "William’s grantees and those holding under them; plaintiff was, therefore, put upon inquiry with respect to their title, and hence takes nothing from priority of record. The evidence does not establish adverse user of the drain by plaintiff sufficient to ripen into a title. Such user from its nature would be non-apparent. Hence the adverse user would not begin to run until it was brought to the notice of the defendant or some one of his grantors other than "Williams, the common grantor. {Ward v. Warren, 82 N.Y., 265, 268; Nicholls v. Wentworth, 100 id., 455 ; Parker v. Foote, 19 Wend., 309; Hannefin v. Blake, 102 Mass., 297.) No notice is brought to any one in possession of defendant’s lot until 1874, and then that notice was not brought to defendant, but to his brother, who was in charge of the lot. Assuming such notice to have been to the defendant, it is too recent to permit the user ripening into a right.

Defendant’s brother, while in charge of defendant’s lot, collected of plaintiff five dollars for repairs of the drain. Assuming that the defendant did this by the hand of his brother, it did not amount to a conveyance of the drain, or of the right to use it. It was evidence of notice of the plaintiff’s user of and from that date; it may have amounted to a revocable license; but it was no grant or estoppel sufficient to pass title to real estate. (Wiseman v. Lucksinger, 84 N. Y., 31.)

The judgment should be reversed, new trial granted, costs to abide event.

Learned, P. J., and Williams, J., concurred.

Judgment reversed, new trial granted, costs to abide event.