Van Sandt v. Royster - brief

CASE NAME	JAME W. VAN SANDT, Appellant, v. LOUISE H. ROYSTER, MARGARET ROYSTER, WILLIAM M. GRAY and LAEL BAILEY GRAY, Appellees.
CITATION, DATE	148 Kan. 495; 83 P.2d 698; 1938 Kan. LEXIS 219. November 5, 1938
COURT	Supreme Court of Kansas

PROCEDURAL HISTORY
TRIAL COURT: (Neosho district court)		APPEAL COURT (for appeal cases only):
PLAINTIFF	Van Sandt	APPELLANT	Van Sandt
DEFENDANT	Royster	RESPONDENT	Royster

DESCRIPTION OF EVENTS
A grantor owned three lots, lying east of Highland avenue and south of Tenth street, numbered respectively 19, 20 and 4. From her home on lot 4 on the east, she ran a sewer pipe through lots 20 and 19 and connected it with a public sewer in Highland avenue on the west of lot 19. About the same time or shortly thereafter the grantor conveyed lot 19 (the corner lot) to a person who erected a house thereon and connected with the sewer pipe. By mesne conveyances the title to lot 19 passed to the plaintiff. The sewer pipe was entirely underground, and the plaintiff had no knowledge or notice of the sewer pipe except the plumbing in the house. Held, there was an implied reservation of an easement over the lot of the plaintiff. "In the latter part of 1903 or the early part of 1904, the city of Chanute constructed a public sewer in Highland avenue, west of lot 19. About the same time a private lateral drain was constructed from the Bailey residence on lot 4 running in a westerly direction through and across lots 20 and 19 to the public sewer." "On January 15, 1904, Laura A. J. Bailey conveyed lot 19 to John J. Jones, by general warranty deed with usual covenants against encumbrances, and containing no exceptions or reservations.... In 1904 Laura A. J. Bailey conveyed lot 20 to one Murphy, who built a house thereon, and by mesne conveyances the title passed to the defendant, Louise H. Royster. The deed to Murphy was a general warranty deed without exceptions or reservations." "On November 7, 1924, Carl D. Reynolds conveyed said last-described property to plaintiff by general warranty deed with usual covenants against encumbrances excepting only a mortgage thereon, but also including the 'appurtenances thereunto belonging,' etc. Plaintiff has owned and occupied said property ever since." " There is not now and was not at the time plaintiff purchased his property anything on record in the office of the register of deeds of the county pertaining to the private sewer above referred to." "all of the original owners of the three properties in controversy, to wit, Laura A. J. Bailey, John J. Jones and W. P. Murphy, had notice and knowledge of the existence of the lateral sewer in controversy, and all acquiesced in the use of the sewer by all parties, and the use of the sewer by the said parties and their successors in interest has been continuous from the time of its installation to the present time--a period of more than thirty-three years--and has been a mutual enterprise, and the said lateral sewer was an appurtenance to the properties belonging to plaintiff and Louise Royster, and the same is necessary to the reasonable use and enjoyment of the said properties of the parties." "At the time plaintiff purchased his property he and his wife made a careful and thorough inspection of the same, knew that the house they were buying was equipped with modern plumbing and knew that the plumbing had to drain into a sewer, but otherwise had no further knowledge of the existence of said lateral sewer." "The drain pipe in the lateral sewer was several feet under the surface of the ground. There was nothing visible on the ground in the rear of the houses to indicate the existence of the drain or the connection of the drain with the houses." "In March, 1936, plaintiff discovered his basement flooded with sewage and filth to a depth of six or eight inches, and upon investigation he found for the first time that there existed on and across his property a sewer drain extending in an easterly direction across the property of Royster to the property of Gray. The refusal of defendants to cease draining and discharging their sewage across plaintiff's land resulted in this lawsuit."

REMEDY SOUGHT	defendants to cease draining and discharging their sewage across plaintiff's land

ARGUMENT FOR PLAINTIFF
"Plaintiff contends that the evidence fails to show that an easement was ever created in his land, and, assuming there was an easement created as alleged, that he took the premises free from the burden of the easement for the reason that he was a bona fide purchaser, without notice, actual or constructive."

ARGUMENT FOR DEFENDANT
"Defendants contend: (1) That an easement was created by implied reservation on the severance of the servient from the dominant estate of the deed from Mrs. Bailey to Jones; (2) there is a valid easement by prescription."

COURT OPINION
US ruling in 1915: "Courts of high standing assert that the rule regarding implied grants and implied reservation of 'visible servitudes' is reciprocal, and that it applies with equal force and in like circumstances to both grants and reservations. But upon a careful consideration of the whole subject, studied in the light of the many cases in which it is discussed, we are convinced that there is a clear distinction between implied grants and implied reservations, and that this distinction is well founded in principle and well supported by authority. It is apparent that no question of public policy is here involved, as we have seen is the case where a way of necessity is involved. To say that a grantor reserves to himself something out of the property granted, wholly by implication, not only offends the rule that one shall not derogate from his own grant, but conflicts with the grantor's language in the conveyance, which, by the rule, is to be taken against him, and is wholly inconsistent with the theory on which our registry laws are based. If such an illogical result is to follow an absolute grant, it must be by virtue of some legal rule of compelling force. The correct rule is, we think, that where, as here, one grants a parcel of land by metes and bounds, by a deed containing full covenants of warranty and without any express reservation, there can be no reservation by implication, unless the easement claimed is one of strict necessity" In proposed restatement of property code: "SEC. 28. FACTORS DETERMINING IMPLICATION OF EASEMENTS OR PROFITS. In determining whether the circumstances under which a conveyance of land is made imply an easement or a profit, the following factors are important: (a) whether the claimant is the conveyor or the conveyee...." "Parties to a conveyance may, therefore, be assumed to intend the continuance of uses known to them which are in a considerable degree necessary to the continued usefulness of the land. Also they will be assumed to know and to contemplate the continuance of reasonably necessary uses which have so altered the premises as to make them apparent upon reasonably prudent investigation. The degree of necessity required to imply an easement in favor of the conveyor is greater than that required in the case of the conveyee (see comment b)." "If land may be used without an easement, but cannot be used without disproportionate effort and expense, an easement may still be implied in favor of either the grantor or grantee on the basis of necessity alone. This is the situation as found by the trial court." "Neither can it be claimed that plaintiff purchased without notice. At the time plaintiff purchased the property he and his wife made a careful and thorough inspection of the property. They knew the house was equipped with modern plumbing and that the plumbing had to drain into a sewer. Under the facts as found by the court, we think the purchaser was charged with notice of the lateral sewer. It was an apparent easement as that term is used in the books."

DISPOSITION OF CASE
Judgment affirmed--Held, there was an implied reservation of an easement over the lot of the plaintiff.

ECONOMIC ANALYSIS

requirements about how obvious covenants must be "in order for it to be binding on a new owner are stricter for passing burdens than for passing benefits." Since benefits are more likely to be disclosed voluntarily (F126)