I am unable to distinguish the present case from the case ofBiggs v. Sea Gate Association, decided by this court by a unanimous approval of the opinion of Judge MILLER (211 N.Y. 482). That action was brought by the defendant here, Biggs, to enjoin the Sea Gate Association from cutting off the connection of the Biggs property with its sewer and water pipes. Biggs succeeded in the action at Special Term. The judgment secured by her was reversed by the Appellate Division. We reversed the order of the Appellate Division and affirmed the judgment of the Special Term. In the opinion in that case it was said that a brief statement of some of the essential facts found by the trial court (which we sustained) will conduce to a proper understanding of the question of law involved, and thereupon the facts narrated embraced the substance of about twenty of the findings of fact found by the trial court in the present case, which in connection with the additional facts found in the present case unanimously affirmed by the Appellate Division sustain the right of Biggs to have the judgment below affirmed.
In the case cited it was found as matter of fact as likewise found in this case that McAlley purchased the several lots which he conveyed to Biggs knowing of and relying upon the statements and representation contained in the booklets and advertisements issued by the Norton Point Land Company to attract purchasers, to the effect that a complete system of sewer and water and gas mains had been constructed at Sea Gate and that purchasers were to have the right to use the improvements introduced without any assessment, for the cost thereof. The conclusion resulting from that finding clearly appears in the opinion: "It is not seriously denied that the purchasers of lots, relying upon the printed advertisements and the map, acquired not only easements in the streets, the fee of which remained in the land company, but the *Page 130 right to connect with the sewer and water systems. * * * Had the house connections been laid prior to the sale of the lands by the land company there could be no doubt whatever that the grantees would have acquired not only the usual easements of light, air and access in the streets, but the right to maintain said connections, which rights and easements would have been appurtenant to the land conveyed and passed to each successive grantee. (Lampman v. Milks, 21 N.Y. 505; Curtiss v.Ayrault, 47 N.Y. 73; Fritz v. Tompkins, 168 N.Y. 524, 532.) The lots were sold with reference to a uniform plan of improvement, and the representation that water and sewer systems had been completed, and purchasers of lots would not be assessed for the same, necessarily implied an agreement that such purchasers should have the right to make connections, and the case is the same as though the connections had already been made, and is in principle analogous to cases in which it is held that reciprocal rights and burdens are created by the sale of lots with reference to a map showing streets, or to a uniform plan of improvement. (Tallmadge v. East River Bank, 26 N.Y. 105;Trustees of Columbia College v. Lynch, 70 N.Y. 440; Lord v.Atkins, 138 N.Y. 184; Thousand Island Park Association v.Tucker, 173 N.Y. 203; Reis v. City of New York, 188 N.Y. 58;Matter of Mayor, etc., of New York, id. 581.)
"The plaintiff (Biggs) acquired the rights appurtenant to the premises possessed by her grantor (McAlley), and, as she at least had the right to make connections at convenient points with the existing systems. * * *"
I am unable to reconcile the language thus employed with the conclusion in the prevailing opinion in this case that "the defendant Biggs is not entitled to an easement over the plaintiffs' land by reason of anything that occurred through the general advertisement of the property by the land company * * *. If the representation *Page 131 was untrue it would not create an easement by implication or otherwise, but it was true so far as appears except perhaps to the extent that the association had failed to extend the sewer and water mains a few feet on to Beach Fiftieth street."
In the former case the court said: "But there can be no doubt that it was the purpose of the advertisements to give the purchasers to understand, and that they did understand, that they would have the right to connect with the sewer and water systems." Then follows the conclusion that had the connections been made before McAlley's purchase, an easement would have existed appurtenant to the land, to maintain the connections, and in view of the sale of the lots with reference to a uniform improvement and the representation that a sewer system had been completed made the case the same as though the connection had been made before the sale to McAlley.
The first deed to McAlley was a full covenant warranty deed. It was dated October 20th, 1897. The findings disclose: "At that time the sewer system had been constructed generally through the streets of Sea Gate, but no sewer or any lateral has ever been constructed at Beach Fiftieth street upon which street the Biggs property fronts.
"In February, 1901, the main trunk sewer of Sea Gate consisting of an eighteen inch pipe ran through Surf Avenue and emptied into the Bay at the end thereof under the pier which then existed there.
"That in the year 1901, and prior to June first, the Norton Point Land Company shifted the sewer pipe running through Surf Avenue to the Bay and turned it at right angles to Surf Avenue about eight feet from McAlley's northern line and ran it parallel with that line and through its own land westerly to the ocean.
"That said change was made by the Norton Point *Page 132 Land Company for its own benefit and for the purpose of layingout and selling this part of its property.
"That the result of such change was to bring the sewer outlet of the Sea Gate sewer system to six feet eight and three-fourths inches of McAlley's rear or northern line where it has since remained."
The findings quoted with the following facts and comments, I deem of importance. The change in the outlet was made nearly four years after McAlley's first purchase of three of the four lots and at a time when the lots were yet vacant property and did not require to be connected with a sewer system. When in February, 1901, the Norton Point Land Company conveyed by deed to the Sea Gate Association as mentioned in the prevailing opinion, Beach Fiftieth street, Surf avenue and the ocean front known as Beach Reservation together with the sewer pipes, etc., together with about one hundred lots, assuming that by such conveyance the fee of the streets, etc., was thereupon vested in the Sea Gate Association, McAlley as well as any other purchaser of lots who had acquired easements of light, air and access therein and the right appurtenant to their lots to make connection with sewers. Not only did that right exist, but it was recognized in the deed to the association as was likewise the right of the land company to provide another outlet for the Surf avenue sewer. The description of the property conveyed included the sewer pipes, etc., "and to have sewage and surface water discharged throughpresent outlets until suitable substitutes therefor shall beprovided." The right of the land company to provide suitable substitutes for present outlets of sewers was not confined to the land conveyed, but to any land owned by the land company. The deed also recognized that purchasers of lots already sold or thereafter to be sold by the land company were vested with certain rights which were to be expressly reserved, by the following *Page 133 language contained in the deed: "Subject, however, to anyeasements or rights now existing in respect to any of thesame (i.e., streets, sewers, water or gas mains, outlets, etc.) and to any easement or easements in favor of any and all of the lands still remaining the property of the party of the first part (the land company) and of any of the owners or occupants of any of such land at any time of the same character and extent as is appurtenant to like lands heretofore sold andconveyed by the party of the first part" (the land company).
The deed in question did not include any part of the block of land embracing the lots sold to McAlley or the several blocks of land sold to the plaintiffs. Both parties to the deed appreciated that not only remaining land unsold but as well land already sold was subject to and burdened with rights and easements appurtenant to the land for light, air and access in the streets, and the privilege of connecting with the sewer, gas and water systems.
The language of the deed also indicates that new outlets for sewers were to be substituted for some of the existing outlets and the findings are that the outlet of Surf avenue sewer was changed prior to June 1st, 1901, by the Norton Point Land Company shifting it from a point in Surf avenue directly opposite lot No. 1 running same across the length of that lot, Ocean avenue and through other lots a distance of over six hundred feet to the ocean; that the change was made to enable the land company to lay out and sell its property in that locality and it has continuedto be the outlet of the Surf avenue sewer since that time.
Following the change of outlet of Surf avenue sewer made by the land company prior to June 1st, 1901, for the purposes stated, the land company continued the owner of the land northerly of the Biggs land. On April 17th, 1906, the land company caused a survey to be made of some of said land upon which it laid out *Page 134 in blocks and lots, the latter being numbered one to fifty-four inclusive and twenty-four A to fifty-four A inclusive. Such survey and platting is shown on the "Map of Sea Gate property of Norton Point Land Company * * * Supplement E" (in the record), the same survey and map referred to in the deed from the land company to the plaintiffs.
The land company had five years before substituted for the original outlet of the Surf avenue sewer into the bay a new outlet across land owned by it extending from the junction of the old sewer in Surf avenue at right angles with the same northwesterly to the ocean, the course of same being about eight feet northerly of the Biggs lots. In November, 1906, the land company conveyed to the plaintiffs lots numbers 1 to 50 inclusive and 21A to 50A according to the survey of April 17, 1906, Supplement E, being all of the land shown thereon save eight or nine lots. The outlet at that time and for years had existed through lot number one. The deed was as stated subject to rights and easements and also contained a restriction which prohibited plaintiffs from erecting any building within ten feet of the line of the Biggs property. As lot number one was but twenty feet in width, it was thereby rendered useless as a lot for a building unless the unrestricted ten feet was utilized in connection with the lots adjoining it on the north. The restriction could serve but one purpose, viz., to prevent the erection of a building over the sewer outlet.
It is stated in the prevailing opinion that there exists in Surf avenue a sewer which can be reached from the Biggs property by a sixty-foot extension on Beach Fiftieth street. The record does not disclose any finding which justifies such conclusion and a basis for the suggestion cannot be found in the record. The course of the old sewer was down Surf avenue to the bay — the outlet of same being under the old dock. Assuming as *Page 135 the opinion must, that after the shifting of the outlet in 1901 to the ocean some of the old sewer pipes remained in Surf avenue below the point where the new outlet was turned at right angles to Surf avenue, a sewer through Beach Fiftieth street striking the old pipe at Surf avenue would not drain into the new or substituted outlet unless it ran up grade a distance of over one hundred feet. If the extension suggested were attempted to be made with the view of discharging through the old outlet it would be useless as the outlet to the old sewer into the bay had not only been abandoned but rendered unavailable. To justify that statement I refer to the evidence of the witnesses called by the plaintiffs, which was in part the basis of the findings of the trial justice, that the old sewer pipes constituting the outlet under the old dock into the bay were taken up and hung upon the timbers of the old dock and some of them left in the sand and when the present outlet was installed it was the main outlet.
The proposition is contrary also to the findings that the sewer across lot number one was constructed by the land company over that property as a part of the sewer system with the result that the same has since remained as such. It seeks to minimize and defeat the rights and easements reserved in the deed to the Sea Gate Association which was of record nearly six years before the conveyance to plaintiffs.
The facts relating to the change made in the outlet were stated in the opinion in Biggs v. Sea Gate Association, and therein this court said: "So far as the sewer was concerned, the plaintiff (Biggs) has made the connection with an existingoutlet." To deny to the Biggs property a right to sewer into the existing outlet is to deprive Biggs of a vested right appurtenant to the land. It renders valueless and uninhabitable a property upon which Biggs expended nearly seventy thousand dollars. *Page 136 It prevents Biggs connecting with the only outlet of the entire sewer system at Sea Gate. As the prevailing opinion refers to evidence in the record, I assume I may exercise the same privilege to justify that statement. A witness for the plaintiff testified that the existing outlet is the only outlet for the drainage of sewage. The sewers in all of the streets at Sea Gate drain into the main sewers in the larger streets and the main sewers into the outlet and that is the only sewage system existing in Sea Gate.
Lot number one, long before plaintiffs purchased the same, was burdened by the existing outlet for all of the sewage disposal at Sea Gate, and under the findings in this case and my view of the law as determined by this court in the former case.
My conclusions are that McAlley was entitled under his purchase as appurtenant to the land conveyed to him to connect said lots with any existing sewer system, and Biggs as his successor in title acquired the same right. That the sewer through lot number one being the outlet of the sewer system of Sea Gate, having been constructed by the land company as a part of the existing sewer system over land owned by it, said lot was burdened with and subject to the rights appurtenant to the Biggs lots to make connection therewith, and the plaintiffs took title to lot number one subject to the right to have the sewer maintained therein and of the adjoining owner, Biggs, to make sewer connection therewith.
I am adverse to overruling the decision of this court inBiggs v. Sea Gate Association, and for the reasons above stated and the views expressed in the opinions below, I vote for affirmance.
HISCOCK, Ch. J., McLAUGHLIN and ANDREWS, JJ., concur with CHASE, J.; HOGAN, J., reads dissenting opinion; POUND, J., absent; CRANE, J., not sitting.
Judgment accordingly. *Page 137