Adams, J.
The facts of the ease seem to bring it squarely within the well-settled principle that where one of two tenements, or a portion of an entire [741] estate, is sold, the purchaser takes the tenement or portion sold with all the benefits and burdens which manifestly appear, at the time of the sale, to belong to it, as between it and the property which the vendor retains. Nicholas v. Chamberlain, Cro. Jac. 121; Robbins v. Barnes, Hob. 131; Lampman v. Milks, 21 N. Y. 505; Curtiss v. Ayrault, 47 N. Y. 73; Rogers v. Sinsheimer, 50 N. Y. 646; Roberts v. Roberts, 55 N. Y. 275; Simmons v. Cloonan, 81 N. Y. 557. It is insisted, however, that this rule has been somewhat modified by the later decisions, and the attention of the court is directed to the cases of Griffiths v. Morrison, 106 N. Y. 165, 12 N. E. Rep. 580, and Root v. Wadhams, 107 N. Y. 384, 14 N. E. Rep. 281, as authorities for this contention. It is true that in these cases the court distinguishes between continuous and discontinuous easements, and holds that in regard to the latter only such as are absolutely necessary to the enjoyment of the estate pass upon a severance of tenements by the owner; but this is really nothing more than a reiteration of the doctrine of Lampman v. Milks, which in turn is founded upon a provision of the French Code, as well as the common law cases, and the analogy between these several authorities seems to suggest a common origin. The substance of the distinction between the two classes of easements is stated in the opinion of Selden, J., in Lampman v. Milks, to be that such as are not dependent for their enjoyment upon any actual interference by man are continuous in their nature, while those, the enjoyment of which cannot be had save by the interference of man, are discontinuous, and pass upon a severance of tenements by the owner only when absolutely necessary to the enjoyment of the property conveyed.
A very recent decision by the supreme court of Yew Jersey defines the rule applicable to easements which pass by implication upon a severance of tenements in a very clear and comprehensive manner, and states that three things are essential to their existence: First. A separation of the title; second, that before separation takes place the use which gives rise to the easement shall have been so long continued, and so obvious or manifest, as to show that it was meant to be permanent; and, third, that the easement shall be necessary to the beneficial enjoyment of the land granted .or retained, but that the degree of necessity is such merely as renders the easement essential to the convenient and comfortable enjoyment of the property, as it existed when the severance was made. Kelly v. Dunning, 10 Atl. Rep. 276. It has likewise been recently held by the court of appeals in this state that the element of necessity is supplied if it appears that the property conveyed cannot be fully enjoyed without subjecting the servient estate to the easement. Simmons v. Cloonan, supra. All the requirements thus held to be essential to the existence of a servitude are. found to be present in fche case under consideration. The title, which was formerly in the defendant, has been separated. Before such separation took place the use of the waters from the spring upon the Brines farm by means of pipes below the surface of the soil was so obvious and constant as to show that it was meant to be permanent, and the easement thus created, if not absolutely necessary, is certainly essential to the full beneficial enjoyment of the land granted. It follows, therefore, that, whether it comes within the definition of a continuous or discontinuous easement, the defendant, when he severed his tenements, charged the portion retained by him with the servitude of a stream of water conducted by artificial means from the spring in question to the plaintiff’s barn-yard.
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Adams, J.
The facts of the ease seem to bring it squarely within the well-settled principle that where one of two tenements, or a portion of an entire [741] estate, is sold, the purchaser takes the tenement or portion sold with all the benefits and burdens which manifestly appear, at the time of the sale, to belong to it, as between it and the property which the vendor retains. Nicholas v. Chamberlain, Cro. Jac. 121; Robbins v. Barnes, Hob. 131; Lampman v. Milks, 21 N. Y. 505; Curtiss v. Ayrault, 47 N. Y. 73; Rogers v. Sinsheimer, 50 N. Y. 646; Roberts v. Roberts, 55 N. Y. 275; Simmons v. Cloonan, 81 N. Y. 557. It is insisted, however, that this rule has been somewhat modified by the later decisions, and the attention of the court is directed to the cases of Griffiths v. Morrison, 106 N. Y. 165, 12 N. E. Rep. 580, and Root v. Wadhams, 107 N. Y. 384, 14 N. E. Rep. 281, as authorities for this contention. It is true that in these cases the court distinguishes between continuous and discontinuous easements, and holds that in regard to the latter only such as are absolutely necessary to the enjoyment of the estate pass upon a severance of tenements by the owner; but this is really nothing more than a reiteration of the doctrine of Lampman v. Milks, which in turn is founded upon a provision of the French Code, as well as the common law cases, and the analogy between these several authorities seems to suggest a common origin. The substance of the distinction between the two classes of easements is stated in the opinion of Selden, J., in Lampman v. Milks, to be that such as are not dependent for their enjoyment upon any actual interference by man are continuous in their nature, while those, the enjoyment of which cannot be had save by the interference of man, are discontinuous, and pass upon a severance of tenements by the owner only when absolutely necessary to the enjoyment of the property conveyed.
A very recent decision by the supreme court of Yew Jersey defines the rule applicable to easements which pass by implication upon a severance of tenements in a very clear and comprehensive manner, and states that three things are essential to their existence: First. A separation of the title; second, that before separation takes place the use which gives rise to the easement shall have been so long continued, and so obvious or manifest, as to show that it was meant to be permanent; and, third, that the easement shall be necessary to the beneficial enjoyment of the land granted .or retained, but that the degree of necessity is such merely as renders the easement essential to the convenient and comfortable enjoyment of the property, as it existed when the severance was made. Kelly v. Dunning, 10 Atl. Rep. 276. It has likewise been recently held by the court of appeals in this state that the element of necessity is supplied if it appears that the property conveyed cannot be fully enjoyed without subjecting the servient estate to the easement. Simmons v. Cloonan, supra. All the requirements thus held to be essential to the existence of a servitude are. found to be present in fche case under consideration. The title, which was formerly in the defendant, has been separated. Before such separation took place the use of the waters from the spring upon the Brines farm by means of pipes below the surface of the soil was so obvious and constant as to show that it was meant to be permanent, and the easement thus created, if not absolutely necessary, is certainly essential to the full beneficial enjoyment of the land granted. It follows, therefore, that, whether it comes within the definition of a continuous or discontinuous easement, the defendant, when he severed his tenements, charged the portion retained by him with the servitude of a stream of water conducted by artificial means from the spring in question to the plaintiff’s barn-yard.
It is contended, however, by the learned counsel for the defendant, that, even if the plaintiff’s deed did convey a right to the use of the waters so conducted from the spring upon the servient tenement, the defendant cannot be compelled to furnish the relief sought by this action, inasmuch as he lias not interfered directly with the water in the spring or pipes; but that whatever interference there has been was occasioned by excavations upon his own land, in the vicinity of the spring, which he had the right to make, although [742] they did. result "in diminishing the water in the spring, to plaintiff’s discomfort and injury; and in support of this contention the case of Bliss v. Greeley, 45 N. Y. 671, is cited. It is not difficult to discover a distinction between the doctrine of that case and this, I think, and it is the same as is pointed out by Rapallo, J., in his opinion in the case of Manufacturing Co. v. Veghte, 69 N. Y. 16. In the case relied upon by defendant the parties were regarded in the same light as adjacent owners, and the rule was applied which permits one party to.dig upon his own land although the effect of his digging is to cut off the water from a spring upon adjacent land by means of percolation. Furthermore, the grant was merely of the right to the spring, and secured no greater privilege than would have accrued to the grantee if he had been the owner of the land on which it was situated. Here, however, there was a grant under circumstances which implied the right to a permanent use of the water, which at the time of the grant was being conducted from the spring onto plaintiff’s premises. This implication was really equivalent to a covenant, in my opinion, and, if so, any interference with the water, whether directly or indirectly, was a violation of such covenant, and therefore unwarranted. Manufacturing Co. v. Veghte, supra; Lasala v. Holbrook, 4 Paige, 169. If, however, this may bfe regarded as an extreme construction of the principle which governs the creation and maintenance of a servitude, there is another'answer to the defendant’s claim, of rightful interference with the easement in question, which is that such interference proceeded from a malicious motive, and was designed to accomplish the precise result attained. But it is insisted the defendant was only asserting his rights, and the courts will not inquire into the motives actuating a person in the enforcement of a legal right. As an abstract statement this proposition is doubtless correct. Phelps v. Nowlen, 72 N. Y. 39; Kiff v. Youmans, 86 N. Y. 324. It has no application, however, to the case in hand, as will readily be observed by a careful reading of the opinion in the former of the cases above cited, by which it appiears that the act complained of was the digging of a ditch by the defendant through an embankment surrounding a spring upon his own land, which embankment had theretofore retained the water so as to.fill a well upon the plaintiff’s land, and the digging of the ditch diverted the water in such manner as to destroy this well. The plaintiff had no right, by prescription or otherwise, to the water from the spring, and its use was enjoyed by the mere'permission or license of the defendant, which he could revoke at his pleasure. The digging of the ditch was therefore simply an assertion of his legal right to revoke the license, and it consequently was a matter of no moment what motive actuated him, for, as is distinctly stated by the court, he interfered with no right enjoyed by the plaintiff. In the case under consideration the facts are essentially different. The plaintiff had a legal right to the use of the water from the spring upon defendant’s land, and this right had been conferred upon him by the defendant. Such being the case, while it may not have deprived the defendant of the right to the enjoyment of his premises, and to the underground waters upon them,'it nevertheless did require of him that he should exercise that right in good faith, and with due regard to the rights of the plaintiff. The distinction here made is one which is recognized in many of the cases in the books, and it has been expressly held that while an act, legal in itself, which violates no right of another, cannot be made actionable by reason of the motive which induced it, yet, where it does violate some right, the old maxim, sic utere tua ut alienum non laidas, applies. Chasemore v. Richards, 7 H. L. Cas. 387; Chatfield v. Wilson, 28 Vt. 49; Bliss v. Greeley, supra. Ho case can be found which holds that a person may confer a right or privilege upon another, and then maliciously destroy such right either by director indirect interference with the same; and this court does not propose to be the pioneer of any such inequitable doctrine.