Smith v. Blanpied , 62 N.H. 652 ( 1883 )

Mrs. Smith had no unnecessary easement in the plaintiff's land. Smith v. Smith, 62 N.H. 429. As it was found by experiment that a convenient cesspool could be constructed on her premises at a reasonable expense, a sewer easement on his lot was not necessary. Allen v. Kincaid, 11 Me. 155; Warren v. Blake, 54 Me. 287; Dolliff v. Railroad, 68 Me. 173, Johnson v. Jordan, 2 Met. 234; Thayer v. Payne, 2 Cush. 327, 332; Carbrey v. Willis, 7 Allen 364, 370; Randall v. McLaughlin, 10 Allen 366; Buss v. Dyer, 125 Mass. 287, 288, 289; Wash. Ease. 61; Godd. Ease. (Am. ed., 1880) 124. If she could not have built a cesspool on any part of her grounds at a reasonable outlay, it would not follow that the owner of the plaintiff's lot would always be bound to receive the sewage from her house and bear the expense of disposing of it. The former ownership of these lots by one person does not subject each lot to all the uses made of it, before the division, for the benefit of the other. The fact that the former owner of both had poured his filth into his own land does not authorize Mrs. Smith to pour hers into the plaintiff's land. Her right to an owner's use of the plaintiff's property is not shown. The rights involved in this suit are what they would have been if the former owner had sold the house-lot to her, and at the same instant sold the barn-lot to the plaintiff, or the heirs had made the division by mutual conveyances. A grant or reservation of a way or other easement is implied, not from a mere expense which a person of ordinary frugality would consider unreasonable, but from necessity. Were a sewer easement in the plaintiff's lot derivable from a right of Mrs. Smith to be burdened by no more than a reasonable expense of living in her house, it might not be easy to sustain the incumbrance if he offered to contribute enough to reduce her housekeeping expenses to a reasonable sum. Whether a change of circumstances required a change of the sewer to be made at their joint expense, — whether he could be relieved from a nuisance by paying her the excess of the cost of a cesspool on her land beyond her reasonable share, — is a question that did not arise. In this action, the committee who set off her dower and homestead are conclusively presumed to have known the law and all facts material to be known in the partition; and the disposal of sewage, like the supply of water, light, and air, is one of the many elements of value presumed to have been considered in the appraisal of the property. No error of law or of fact appears in that proceeding. If there had been a mistake in it, if could have been corrected, but not in this form of action. There was no evidence on which the defendant could prevail.

Judgment on the verdict.

SMITH and CARPENTER, JJ., did not sit: the others concurred.