Mulrooney v. O'Bear

80 Mo. App. 471, 1899 Mo. App. LEXIS 191

Opinions

BLAND, P. J.

The Hodiamont Realty Company (incorporated), in 1891 and 1894, laid off into building lots, streets and alleys, a subdivision of land just west of the city limits of the city of St. Louis, which it duly platted, acknowledged and designated as Hodiamont, and caused the same to be recorded in the recorder’s office of St. Louis county (where the land is situated). Maple avenue road runs north and south on the western boundary line of Hodiamont. The city waterworks of the city of St. Louis has a supply water pipe just south of the south boundary line crossing Maple avenue, near the southwest corner of Hodiamont. The object had in view by the realty company when it platted its lands, was to sell the lots to persons seeking locations for residences, and in order to make the property available for that purpose, it, by permission of the road overseer of Maple avenue, laid a water supply pipe in the avenue bordering on its property, which pipe by permission of the city authorities, it connected with the city waterworks, and put in a large water meter at the point of connection. It also laid in the alleys of Hodiamont service water pipes connecting them with the Maple avenue supply pipe, and at the same time constructed sewers and made the necessary connections with the water system. After the water system had been laid, the plaintiff purchased of the realty company parts of lots 96 and 97, in Hodiamont and received a general warranty deed conveying the ground and all the rights, immunities, privileges and appurtenances to same belonging. The dwelling on these lots was arranged to receive water from a supply pipe laid in an alley back of the premises and the necessary connections had been made to supply water to the dwelling. The realty company continued to supply the residents of Hodiamont with water through this system, and collected a water tax from them, until it sold all the lots, divided its assets among the stockholders, and disincorporated. Afterwards the citizens appointed an agent,who took out a water license from the city and paid for the same out of a com-' mon fund provided by the residents. This continued until June, 1897, when the water commissioner of the city recognized defendant O’Bear as the owner of the water pipes and issued a license to him, refusing at the same time to give a license to the appointed agent of the residents of the subdivision. After receiving this license O’Bear demanded payment of water rates (same as city), of plaintiff and other residents, and threatened to cut off the supply if the rates demanded were not paid. It is also in evidence that defendant Deavers, by direction or permission of O’Bear, has laid pipes and made connections with the Maple avenue pipe so as to convey water in territory beyond the limits of Hodiamont, and there is evidence that the capacity of the Maple 'avenue pipe is not more than sufficient to supply Hodiamont. Plaintiff for himself and others similarly situated brought suit to enjoin defendants from any and all interference or threatened interference with the Hodiamont water supply. A temporary injunction was granted, but was, on final hearing, dissolved and the bill dismissed. Erom this judgment the plaintiff appealed.

Appurtenant. As wo gather from the pleadings and evidence, O’Bear does not claim any interest in nor control over the service pipes which were laid in the alleys of Hodiamont, bnt claims to own and a right to control the supply pipe that was laid in Maple avenue. He bases this claim on an assignment to him from the realty company made June 1, 1893, for a nominal consideration of “all the right, title and interest which the realty company had in and to the water pipes and water meter in Maple avenue running west from city limits to Hodiamont.” This assignment was made after the realty company had by deeds conveyed all of its holdings in Hodiamont, and only a few days prior to its dissolution and disincorporation. In none of the conveyances by the realty company was there any reservation of the Maple avenue pipes or of the water meter. If the plaintiff and other purchasers of the Hodiamont lots, by their several deeds of conveyances acquired as appurtenant to their property the right to have water, supplied by the city, flow through the Maple avenue pipes to supply their premises with water, as against the grantor (the realty company), then the judgment should be reversed and judgment given for the plaintiff perpetually enjoining defendants from intermeddling with such right. If no such right passed, the defendant O’Bear under the assignment made to him has the right to control the flow of water through these pipes, and the judgment should be affirmed. “It is well settled law that the grant of a thing will include whatever the grantor has power to convey which is reasonably necessary to the enjoyment of the thing granted; and a grant of a house with appurtenances passes a conduit by which water is conveyed to it.” 3 Washburn on Real Property [3 Ed.], 719; Farmer v. Water Co., 56 Cal. 11; Meek v. Breckenridge, 29 Ohio St. 642; 1 Am. and Eng. Ency. of Law, 641. In Badger Lumber Co. v. Marion Water Supply, Electric Light and Power Co., 48 Kan. 182, it is said by the court: “That an appurtenance is a thing belonging to another thing as principal, and passing as an incident thereto; and that poles planted in the streets of a city necessary to transmit electric light from a power house are appurtenances.” The same ruling was made by this court in Southern Electric Supply Co. v. Rolla Electric Light and Power Co., 75 Mo. App. 622, and in Forbes v. Williamette Falls Electric Co., 19 Ore. 61. In Lampman v. Mills, 21 N. T. 505, it is said: “That where the owner of land sells a part thereof, he impliedly grants to the grantee all of those apparent and visible easements which are necessary for the reasonable use of the property granted and which are at the time used by the owner of the entirety for the benefit of the'part granted.” In Cave v. Grafts, 53 Cal. 135, the court says: “The general rule of law is that where a party grants a thing, he by implication grants whatever is incident to it and necessary to .its beneficial enjoyment. The incident goes with the principal thing. The idea and definition of an easement to real estate granted is a privilege off and beyond the local boundaries of the lands conveyed.” In Missouri Pacific Railway Co. v. Maffit, 94 Mo. 56, our supreme court says that the word “appurtenant” has no inflexible meaning, but must be construed in connection with the nature and subject of the principal thing granted.” And, as is said in Wells v. Garbut, 132 N. Y. 430, “as a grantor can not derogate from his own grant, while a grantee may take the language of the deed most ^strongly in his favor, the law will imply an easement in favor of the grantee more readily than it will in favor of a grantor.” To the same effect is Johnson v. Jordan, 2 Met. 234, opinion by Chief Justice Shaw. The service pipes and sewers would be entirely useless without the supply pipe laid in Maple avenue. This latter pipe is, to the Ilodiamont water system, the fountain head of supply, and he who has the control of this pipe has control of the entire system, and may at his pleasure supply or cut off the supply of water to the inhabitants. Rut the contention is that the grantees of the Ilodiamont property can have no property interests in the Maple avenue pipe; that it was laid there not under any grant of right, but by permission only. Easement. The pipe is there by the license of the road overseer, it is connected with the city’s water system also by permission. These licenses may ripen into an easement by prescription, but whether they may do so or not is immaterial here; they are there, and according to the testimony furnished inducements and entered into the consideration of the purchases made by plaintiffs and others, and being necessary to the reasonable enjoyment of the property, passed as appurtenant thereto. If the realty company had a property right in the Maple avenue pipes which was capable of being assigned to O’Bear, might it not, by implication convey that same right to the purchasers of the Hodiamont property ? And is not O’Bear estopped by the very instrument under which he claims, to say that the realty company had no such right in these pipes and meter as could be passed by a deed of conveyance? It was not necessary that the realty company should own the ground in which the pipe in Maple avenue was laid to make it appurtenant to the Hodiamont property. The fact that they were placed there by the realty company for the purpose of furnishing a conduit for water supply and was used for that purpose and. that the plaintiff and others made their purchases with these facts in view, is sufficient to make them appurtenant to the Hodiamont property. Simmons v. Winters, 21 Oregon 35 (s. c., 28 Am. St. Rep. 727), is a case presenting a parallel state of facts to the one at bar. There Cox and Rowland from whom Winters derived title had dug an irrigating ditch from a creek over and across unoccupied public lands to convey water to irrigate their lands. In a controversy between Simmons and Winters as to the right of the use of the ditch, it was held that when Oox and Rowland conveyed by their deeds their lands with the appurtenances, they also conveyed their interests respectively in the -ditch and water right which was connected therewith and necessary to the cultivation and enjoyment of the lands, as much so and as certainly as if they had declared so by the expressed terms of their deeds. With equal propriety it may be said that when the Hodiamont Realty Company conveyed their lots by deed to plaintiff, they conveyed to him as appurtenant thereto the right to have water flow through the Maple avenue pipe and thence by the supply pipes to his premises on such terms as he might be able to contract with the city as if the pipe and the meter had been conveyed by express terms in the deed. Our conclusion is that O’Bear has no right, title or interest in the water meter or the Maple avenue pipes; that these are appurtenant to the Hodiamont property, and as such passed from the realty company to the purchasers of that property, and that the owners of the Hodiamont lots have the sole right to use and control the same. vThe judgment is reversed, with directions that the trial court set aside its order dissolving the temporary restraining order, and that it enter judgment for plaintiff perpetually restraining defendants from using or interfering with the said water meter and the Maple avenue water pipes described in the petition.

Judge Bond concurs; Judge Biggs dissents and asks that the cause be certified to the supreme court because in his opinion, the majority opinion is opposed to the ruling of the supreme court in Barrett v. Bell, 82 Mo. 110. The cause is accordingly certified to the supreme court for its decision.