Poull v. Mockley , 33 Wis. 482 ( 1873 )

Cole, J.

On looking into the deed executed by Fuchs to Budinger, there can be no doubt about the intention of the former to convey to the latter an assignable right or privilege. For the language is, conveying to Budinger, “ his heirs and assigns forever the right and privilege to take water for the use of his family, and for any other purposes, out of the well being on the premises ” of the grantor. These words in the deed show very clearly that it was not the intention of the grantor to convey a mere personal right which could be enjoyed by the grantee alone. But notwithstanding the intention of the grantor is plain, not to make this right to take water from the well which was upon his land of a personal character, still it is said that the nature of the right was such that by the rules of the common law, it was incapable of assignment or inheritance.' It was, it is claimed, an easement in gross, which was attached to the person of the grantee, and could not be enjoyed by his assigns, to whom he had attempted to convey it.

When Fuchs conveyed to Budinger the right or privilege to take water from the well on his lot, and also “ the right to use the hook, chain and other implements at such well by which the water ” was taken by the grantor, and the right to have and use “ a road three feet wide ” from the east line of the grantor’s lot, Budinger was the owner in fee of lot 9 adjoining on the east. There might be, therefore, some ground for claiming that the easement over Fuchs’ lot number 8 was appurtenant to lot 9, and necessarily attached to it, into whosesoever hands the latter might come by purchase or otherwise. In that case, the easement, being appendant to lot 9, would go with the ownership of that estate. But, assuming that the easement was not appurtenant to lot 9, the question then arises, Was it capable of transfer and assignment by the grantee, Budinger? We think it was, and that the evidence shows that the right or privilege has been transferred to the defendant in the action.

There are authorities which hold that where the owner of land grants to another the right to pass over his ground, or through his private alley, or to take water from a well or spring, this gift or grant is particular, and confined to the grantee alone, and not be assigned to another. The case of Ackroyd v. Smith, 70 Eng. Com. Law R., 164, is a leading authority upon that point, and is followed in Garrison v. Rudd, 19 Ill., 558, and is cited with approbation in some of the elementary works on easements and servitudes. Washburn on Easements and Ser-vitudes, pp. 9, 26, 81. See also 8 Kent, 552, 10th ed.; Woolr. Ways, p. 16. On the other hand, there are cases in which it has been decided “ that ways in gross may be granted or may accrue in various forms to one, his heirs and assigns.” Goodrich v. Burbank, 12 Allen, 459 ; French v. Morris, 101 Mass., 68. In Goodrich v. Burbank, the decision, as stated in the head-note, is as follows :

“ A vendor of land may reserve an assignable right of taking water from a spring situated thereon, through pipes of certain dimensions, with the right to enter upon the land to make repairs, upon payment of the damages caused thereby; and such right need not be annexed to any particular estate, or be limited as to place or manner of its enjoyment.

“ A vendor of land reserved to himself, his heirs and assigns, the right of taking forever so much water from a spring situated thereon, from which water was then taken in a pipe to supply the grounds of a neighbor, as then ran in said, pipe, so long as the same should last, together with the right to replace the same with a pipe of a certain size, and thereupon to take so much water as would run through the substituted pipe, and to enter and repair the aqueduct at all times, upon payment of the damages caused. thereby. The neighbor received the water under a revocable license; and no part of the vendor’s remaining land had the -use of water from the spring. Held, that the reservation gave to the vendor an assignable right to take the specified quantity of water, not annexed to any particular estate or limited as to the place or manner of its enjoyment.”

In this case the court refer to the rule laid down in Ackroyd v. Smith, to the effect that an easement proper, like a way in gross, can not be created in grant so as to be assignable or inheritable, and disapprove of it. They say that such is not the rule of law in Massachusetts. We have concluded to follow the authorities of that state upon this subject. We cannot see any substantial reason for holding that an easement in gross cannot be assigned or transferred, especially when the language of the grant shows unmistakably that the intention was that it should be enjoyed by the grantee, “ his heirs and assigns.” There is surely no ground for saying that Fuchs only intended to grant a personal right to Budinger, and to restrict the right to take water from his well to him alone. Such an inference would he wholly unwarranted from the language of the grant. In this case the defendant has become the owner of lot 9, and he has likewise acquired from Budinger the easement, unless the rule of the common law prohibits grants of that character. We do not think there is any such inflexible principle, and consequently sustain the grant in the present case.

By the Court. — The j udgment of the circuit court is reversed, and the cause remanded with directions to dismiss the complaint