[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 432
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 433 Both parties unite in the position that the plaintiff acquired through the sale in foreclosure the entire estate of both mortgagor and mortgagee, as of the date of the mortgage. (Rector, etc., v. Mack, 93 N.Y. 488; Pardee v. Steward, 37 Hun, 259, 262; 2 R.S. 192, § 158; Code Civ. Pro. § 1632.) The question presented for decision, therefore, is whether a riparian owner, who has imposed a burden on one part of his land for the benefit of another part, upon conveying the former without express reservation, should be held *Page 435 under the circumstances of this case, to have impliedly reserved the right to continue the burden. As a grantor cannot 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 a grantee more readily than it will in favor of a grantor, and this distinction explains many of the apparent inconsistencies in the reported cases. Some learned judges, in considering what may be termed an implied grant, as distinguished from an implied reservation, without, however, mentioning the distinction, have used language apparently applicable to all easements existing by implication, when in fact intended to be limited to those existing in favor of a grantee. Others in deciding that an easement was impliedly created by a grant and conveyed to the grantee, have gone farther in their discussions than the point involved required and have broadly declared the rule to be reciprocal and applicable alike to benefits conferred and burdens imposed, provided the marks of either were open and visible. Such was the case of Lampman v. Milks (21 N.Y. 506), where the discussion outran the decision, for, while it was decided that, on the facts then appearing, an easement should be implied in favor of the grantee, against the grantor and his remaining lands, it was asserted that under like circumstances an easement would be implied in favor of the grantor, against the grantee and his lands. The latter proposition was involved neither in the case decided, nor in any of those relied upon to support it, except such as have since been overruled, either expressly or impliedly. So much has been written upon the general subject of implied reservation that a review of the authorities is no longer practicable in an opinion of reasonable length and we shall content ourselves by announcing the rule applicable to the facts of this case and citing a few out of the many authorities upon which it is based.
Where the owner of two parcels of land conveys one by an absolute and unqualified deed, we think that an easement will be implied in favor of the land retained by the grantor and against the land conveyed to his grantee, only in case the burden *Page 436 is apparent, continuous and strictly necessary for the enjoyment of the former. (Outerbridge v. Phelps, 13 Abb. [N.C.] 117;Shoemaker v. Shoemaker, 11 id. 80; Scrymser v. Phelps, 33 Hun, 474; Dales v. Ceas, 5 W. Dig. 400; Burr v. Mills, 21 Wend. 290, 292; Sloat v. McDougall, 30 N.Y.S.R. 912;Butterworth v. Crawford, 46 N.Y. 349; Longendyke v.Anderson, 101 id. 625, 630; Buss v. Dyer, 125 Mass. 287;Mitchell v. Seipel, 53 Md. 251; Burns v. Gallagher, 62 id. 462; Brown v. Burkenmeyer, 9 Dana, 159; S.C., 33 Am. Dec. 541; M'Donald v. Lindall, 3 Rawle, 492; Dillman v.Hoffman, 38 Wis. 575; O'Rorke v. Smith, 11 R.I. 264;Cooper v. Maupin, 35 Am. Dec. 464, note; Collins v.Prentice, 15 Conn. 39; S.C., 38 Am. Dec. 61; Wheddon v.Burrows, L.R. [12 Ch. Div.] 31; Crassley v. Lightowler, L.R. [2 Ch. App.] 478; Suffield v. Brown, 4 DeGex, J. O. 185; Russell v. Watts, L.R. [25 Ch. Div.] 572; Brown v.Alabaster, 37 id. 504; Washburne on Easements, 104 [4th ed.]; Gould on Waters, §§ 357, 362; 6 Am. Eng. Encyc. 143; 4 R.S. [8th ed.] p. 2491, § 1.)
The trial court found "that at the time of the making and execution of the said mortgage said mills were in operation and there had been maintained a dam across said creek through said lot 43, which set the water back up the creek to lot 37." It was not expressly found, however, that there was any apparent overflow at the time when the mortgage, or the deed, was given, or that the mortgagee or the grantee had any notice of the facts when either instrument was accepted. While the dam was high enough to overflow the forty-one acres when the pond was full, it does not appear, unless by implication, that any standing water was visible at the date of the mortgage, or that there was then any visible sign indicating "to a person reasonably familiar with the subject, upon an inspection of the premises," that water had stood there in the past. (Butterworth v. Crawford, 46 N.Y. 349. ) At the date of the deed the dam was not in use, as it had been partly swept away by a freshet. Both the mortgage and the deed were given at a season of the year when the water of streams in this state is *Page 437 ordinarily low. Thus it is by no means clear, from the facts as found, that at the date of either instrument upon which the plaintiff's title is founded, there was any visible overflow, or apparent sign of previous overflow. As regularity is presumed, the one who claims that an error was committed, must cause it to clearly appear, or effect will be given to the presumption by affirming the judgment appealed from. (Tracey v. Altmyer,46 N.Y. 598; Appleby v. Erie Co. Sav. Bank, 62 id. 12, 18.)
But even if the findings, when liberally construed, show that the alleged easement was apparent and continuous, they utterly fail to bring it within the rule of strict necessity. It does not appear that the water-power of defendant would be materially diminished if he were not permitted to overflow the lands in question. The maximum overflow affects but little more than two acres of plaintiff's land, which, if the dam should be restored, would be rendered "wet and spongy" and unfit "for agricultural purposes." The defendant claims that the capacity of his mill, when the pond is full, is about fifty barrels of flour each day, and that the fall at the bulkhead is eleven feet, but it does not appear what the capacity or fall would be with the overflow restricted to the lands which he has the undisputed right to overflow. We are not informed as to the fall of the stream as it flows through the land affected, the grade of the banks, the depth of the water when the overflow is greatest, or the quantity of water that was accumulated or stored on the two acres by the old dam. For aught that appears the advantage of flowing such a small quantity of land was so trifling as to raise the presumption that the mortgagor willingly abandoned it when he omitted to mention or reserve it from the operation of the mortgage. The doctrine of implied reservation rests upon the presumed intention of the parties as it is gathered from the conveyance, interpreted in the light of the circumstances surrounding them when it was executed and with reference to which, as existing facts, they are supposed to have contracted. If it appeared that the mill could not be operated without overflowing the plaintiff's land, *Page 438 it would be cogent if not conclusive proof of that strict necessity, which does not create the easement, but is simply evidence as to the intention of the parties. If, on the other hand, it appeared that owing to the slight declivity the accumulation of water was insignificant and that the mill property was worth substantially as much without the right in controversy as with it, there would be no proof of "necessity" and nothing upon which an implication in favor of the mortgagor or grantor could rest. Even the dimensions of the pond are not furnished us, and we cannot compare its extent with and without the two acres, although it appears to extend partly across one lot and entirely across another before it reaches the lands of the plaintiff. When it is claimed that an easement exists by necessity, evidence of the necessity must be given. (Stuyvesant v. Woodruff, 47 Am. Dec. 156; Gayetty v. Bethune,14 Mass. 49, 55; Elton v. Pitman, 98 id. 50.)
While absolute physical necessity need not be shown, as in the case of land-locked premises, or the support of a wall, there must be a reasonable necessity, as distinguished from mere convenience. (Root v. Wadhams, 107 N.Y. 384; Hollenbeck v.McDonald, 112 Mass. 250; Berry v. Brown, 6 Caldw. 98;Cooper v. Maupin, 35 Am. Dec. 464, note.)
But in the case before us, where certainty is required, all is conjecture. There is neither finding nor evidence that, in order to run the mill with substantially undiminished efficiency, it is necessary to maintain the dam at such a height as would cause the water to flow over the plaintiff's land.
Upon the facts as found, we think it would be unreasonable to hold that the mortgagor intended to reserve any right in the nature of an easement over the mortgaged premises, or that the mortgagee understood when he accepted the security that it was cut down in extent and reduced in value by the fiction of an implied reservation.
The judgment should be affirmed, with costs.
All concur, except HAIGHT, PARKER and LANDON, JJ., dissenting.
Judgment affirmed. *Page 439