Wetmore v. Fiske ( 1886 )

After the foregoing opinion had been given, Wetmore, the respondent to the cross-bill Fiske v. Wetmore, filed a petition for a rehearing.

Newport, March 28, 1887. The respondent asks us to grant him a rehearing for several reasons, one of which is that we were influenced in coming to our former conclusion by certain errors of fact. These errors are stated to be, first, that a plan of sewerage, providing for a sewer in Ruggles Avenue, was before the city council of Newport when the indenture granting rights of drainage in and through Lawrence Avenue was executed; second, that the Lawrence Avenue drain had not previously been used for house and stable drainage; and, third, that said drain is unsuitable for such drainage. The respondent submits affidavits to prove that when the indenture was executed the plan was not before the city council, having been rejected, after adoption by the Common Council, by the non-concurring vote of the Board of Aldermen; that he had used the Lawrence Avenue drain for several years for house and stable drainage, and that such drains were in common use in Newport for such drainage. Some of the reasons given for our former opinions would be weakened by the proof if admitted; but would it lead us to a different conclusion?

What we formerly decided was, that the respondent is not entitled either by prescription or under the indenture, to a right to conduct the sewage of his new stable and tenement through the Lawrence Avenue drain, across Ruggles Avenue and the complainant's land, to the sea. The indenture grants "the right of drainage in and through" three private ways or avenues belonging to the grantors, Lawrence Avenue being one. Lawrence Avenue ends at Ruggles Avenue, and therefore the grant, according to its terms, extends no further. The respondent contends that it extends to the sea by implication, inasmuch as the land, now of the defendant, belonged to the grantors at the date of the grant. He argues that this must have been contemplated by the parties, since otherwise the grantees would take nothing by the grant, a right ending at Ruggles Avenue being unavailable. It was in view of this argument that we formerly referred to the plan of sewerage which we then supposed was before the city council. The rejection of the plan lessens the pertinency of the reference, but it does not convince us that the respondent would attach no value to the right unless it extended to the sea, since the adoption of some system of sewerage is probably only a question of time. Moreover, the indenture grants other rights and privileges, and therefore the grant of the right of drainage in addition might be accepted, however small its value.

The respondent, citing many cases, contends that an extension of the right to the sea must be implied as a matter of law. We have examined the cases, and find that they go only to the effect that the grant of an estate or easement carries with it by implication whatever incidental right is necessary to its beneficial enjoyment, provided the grantor has power to bestow it. Thus the grant of a right of way implies a right to make or mend the way. So the grant of a right of turbary implies a right not only to cut the turfs, but also to stack them for removal. Such implications do not add to the extent of the grant as expressed; they simply make it serviceable within the limits expressed. Cases which hold that the conveyance of a house may carry the site and curtilage are not in point, for they hold that the site and curtilage pass, not incidently to the house, but as parcel of it, within the meaning of the word "house" as used. A right of drainage from Lawrence Avenue to the sea cannot be construed to pass as parcel of a right of drainage "in and through" Lawrence Avenue. The case among the cited cases which comes nearest to supporting the complainant's claim is Bushwell v. Proprietors of Ore Bed, 31 Conn. 150. There the plaintiff conveyed to the defendants a right to wash ore in a stream, and discharge the dirt on his meadow lot. The exercise of the right resulted in an accumulation of dirt on the meadow lot which washed down upon the plaintiff's adjoining pasture lot, and the court held that no action would lie for the injury, the same being a natural consequence of the exercise of the right as granted. The case is authority to the effect, not that the grant of the right of drainage in and through Lawrence Avenue implies a right in continuation thereof across the complainant's land to the sea, but only that the respondent would not be liable for any injury resulting to the land of his grantors, or of the complainant as their successor in title, for exercising his right as granted; i.e. in and through Lawrence Avenue.

The respondent contends that he has a right to transmit his house and stable drainage through the drain to the sea, because the drain is a substitute for a natural watercourse which formerly followed the same direction. If the drain be such substitute, we suppose the respondent may have a right to use it as if it were the watercourse; but he would have no right, except by prescription, to use the watercourse for the carriage of his house and stable drainage or sewage to the sea, since such use would unlawfully contaminate and defile the water running in it. There is no satisfactory proof of prescription; on the contrary, it is in evidence that years after the drain was constructed the water running in it was pure enough to be drunk by both cattle and men.

The respondent contends that he is entitled to the use of the drain from Lawrence Avenue to the sea, under the law in regard to apparent and continuous easements. The law referred to is this: When the owner of land subjects one part of it to accommodations, resembling continuous easements, for the benefit of the other, such accommodations, by conveyance of the servient part, will really become continuous easements for the benefit of the other part. Providence Tool Company v. Corliss Steam EngineCompany, 9 R.I. 564. It may be that under this rule the complainant's land is subject to the drain for the benefit of Lawrence Avenue, since the drain was there when the land was conveyed to his predecessor in title by the owners of that avenue; but we do not see how it is subject thereto for the benefit of the respondent's land, except in so far as the drain is a substitute for the ancient watercourse. It is true the respondent was using the drain when the land was conveyed; but, in so far as he was using it independently of the indenture, the use was either permissive or by way of substitution for the watercourse, and, in so far as he was using it under the indenture, his right did not extend beyond Lawrence Avenue. It will be observed that the right granted by the indenture is not in terms a right to use the existing drain, but only a right of drainage in and through the avenues mentioned; and, even if the grant covers house and stable drainage or sewage, it does not follow that the grantees are entitled to use the existing drain, which was laid for other purposes, as a conduit for such drainage or sewage. We have no doubt that the trustees of the Lawrence estate, as owners of the land below Lawrence Avenue, could have refused to permit such use even after the indenture, because such use would send the drainage or sewage through the continuation of the drain upon their land below the avenues in excess of the grant; and if the trustees, as owners of the land below the avenues, were entitled to stop such use, or to have it stopped, we think the complainant as their successor in the title, is likewise entitled to have it stopped.

The respondent contends that to construe the grant so is to construe it contrary to the intention of the parties. In proof of this he introduces the deposition of one of the two trustees who signed the indenture. We do not think oral testimony is admissible to show the intention of the parties to a written instrument under seal. The deposition, however, scarcely goes to the extent of the respondent's claim, for the deponent, while disavowing any intention to limit the grant to land or surface drainage, in answer to the question. How was it understood that the drainage should be carried off after it was conducted to Ruggles Avenue? replied: "I don't think there was any understanding about it; my idea was that the drain would find a natural outlet as formerly," unless a sewer was laid in Ruggles Avenue. We cannot help thinking that if the trustees had really intended to charge their land from the foot of Lawrence Avenue to the sea with such a servitude as is claimed, they would have had an understanding about it, and would have expressed, and been required to express, it in plain words.

Petition dismissed.

The complainant Fiske then amended his bill as stated in the following opinion, and set the case down for hearing on the amended bill and answer thereto filed by the respondent Wetmore.