(dissenting):
The referee found as a fact that MeComb, who owned a large tract of land adjoining land owned by the Chauncey Realty Company, agreed if that company would settle and discharge certain claims of the estate - of Wood, his brother-in-law, against Joel B.; Erhardt and others interested in the realty company’s property, which were in-suit, by satisfying two mortgages for something over $1,000, and in addition give' á note of the realty company for $2,000 to Mary Esther MeComb, as administratrix, that then “ he, the said James Jennings MeComb, would grant and convey to the Chauncey Realty Company for the benefit of its said lands, an easement in perpetuity to use Walgrove Avenue and the sewer mains thereunder, and also to extend said mains from the terminals thereof, and to extend • Walgrove Avenue in a southerly direction through his property into the lands of the Chauncey Realty Company and to use said sewer and roadway extensions, and would also grant and' convey. to the Chauncey Realty Company a right of way over ..his property, known as the Alpine Drive Turn. But it - was provided by the said MeComb that said easement of sewage was to be limited to interior and not to include the roof drainage of . buildings or surface' drainage, and that said Walgrove Avenue extensions and the sewer thereunder were to be subject as to location ■ to the approval of William C. Kidney, the agent, of said MeComb, and the sewer extension was to be built with Y’s every 50 feet to furnish drainage facilities for the MeComb property through which . it passed.”
The prevailing opinion proceeds lipón the theory that this finding ' is without evidence to support it, and for that reason there should be a new trial. I am unable to concur in this view. . I think that the finding is not only sustained by the evidence,, but that a finding to the contrary would be against evidence. The fact that the realty company did settle the claims of the Wood estate against Erhardt and others, and satisfied the mortgages and gave the note is not disputed, and it could not well be in view of the receipt given on the 20th of February, 1900, by the administratrix of that estate, and which was witnessed by MeComb himself. Mor is the fact disputed that the realty company did' exténd Walgrove avenue across McComb’s property at an expense to it of $1,655,-and laid there*543under some 2,300 feet of sewer mains with Y’s every 50 feet at a cost of $1,810.60, which Y’s were solely for the benefit of McOomb’s property. Nor is the fact disputed that the Alpine Drive Turn was constructed, and the sewer extension and roadway to connect with Walgrove avenue were built, all in exact accordance with the understanding with McComb and with the approval as to location of his representative, Kidney. While these facts are not disputed, it is nevertheless urged that there is no evidence to sustain the finding that the agreement as to the easements of sewerage and right of way had anything to do with the Wood settlement and was, at most, a mere license on the part of McComb which he could at pleasure revoke. The evidence is to the contrary. The witness Lamb, who represented the realty company, testified that McComb said he would give to the realty company “the right of way and the use of the sewer in consideration of our paying or giving the notes for the Wood account, and to cancel the two mortgages on the Fleming properties. He stated that the amount of the notes should be $2,000 or something to that effect; I don’t recall just the amount. * * * Later, when it came to the time for constructing that sewer, I went to see him and he appointed Mr. Kidney to go with _ me to point out those places where the old sewer left off or where the right of way through the Scliaffenberg place should be.” He was then asked : “ Q. Was anything said at any of those interviews as to the character or duration of this easement?” And he answered : “Yes, sir. It was to be a perpetual easement. Mr. McComb said he would give that.” He further testified that McComb himself and his representative were on the ground after the work had been commenced. Kidney stated that he went with Lamb and looked over the ground and finally agreed with him as to the location of the road ; also that he heard a conversation between Lamb and McComb “ about a sewer right, about a connection with the sewer, along in the spring of 1900.”
When the whole subject is considered, it is perfectly obvious that the realty company was negotiating not for a mere personal license, but for something which shbuld be permanent —something which should be appurtenant to and run with the property which was to be developed. It wanted a way onto its land and a right to sewer therefrom. It is improbable that the company would expend large *544.amounts of money in building nearly half a .mile .of roadway and lay an -eight-inch .sewer main, both of 'which wer.e, of substantial "benefit -to the McComb .property, and secure nothing permanent in return for itself. That McComb intended .to grant not a mere .license to the realty company, but .an easement of -sewerage-and .roadway is apparent from his -own written statement. .Shortly following the time .Lamb testified the agreement .was made, when McComb. -was urged to become further interested .in the realty .company, .and on the 7th of December, 1.900, he wrote its president .as follows;:. “1 think I .have afforded you ¡assurance of my.desire to Anther the interests of .all .concerned by the-.concessions .already made in the matter of a roadway .through any property, including •.easement, for the.right t.o lay sewer and other pipes therein, which have ¡already become an embarrassment tome in a negotiation now pending .for ¡the sale of the .Springhurst or' Schaifenberg property in its entirety as when I bought -it.” What did he mean by the use -of the word ;“ -.easement,? ” . Clearly not ,a mere license which he -could revoke at pleasure, because if so he would have'revoked it instead of ¡allowing the same to “become an embarrassment ” in a negotiation for some, of his property over which the “ easement ” •extended. When this- statement is considered- in connection with the written, .report -of the president of the.realty company ,to its ¡-stockholders a fewdays later—to which MeComb took no exception and made no Objection—M seems-to me-¡conclusive',that he not ■only .intended,.-but-supposed he had bound himself to give to .the realty company ;a perpetual, .easement of sewerage ¡and roadway. 'The ¡annual meeting ¡of the stockholders of the realty company was ..held on the 8 th ¡of January, 190.O-.' Kidney attended the meeting .as ■ proxy for McComb. The president of thecompany then reported the ■facts as to ¡the Wood -settlement,;, the satisfaction of the two mortgages ■;■ the giving off the $2,i©.0,0 note, and that “ The company .also received from. J,. <L McComb <a deed for the right of way over his • property for [the purpose of the Alpine Drive,, and ■ an,agreement by Mr. McComb ¡to convey, sewerage rights ¡and otherrights of-way over "Ms .property, in connection with. the Walgrove extension and ¡sewer~age.” A .copy-of the report was subsequently sent ,to" the --stockiholders, incinding.Mc.C.omb, and Kidney testified that..he “talked '-over the report with Mr. McComb ” and that neither he .nor. *545McComb ever made to the realty company any protest against the statement therein contained to the effect that the company had received from McComb “ an agreement * * * to convey sewerage rights and, other rights of way over his property in connection with the Walgrove extension and sewerage.”
We have, therefore, not only the testimony.of the witness, Lamb, that McComb agreed to give a. perpetual easement of sewerage and roadway, and the testimony of the witness, Kidney, that he heard the matter discussed between them, but we have also the written statement of McComb himself that he had given such easements and the written report of the president of the realty company to its stockholders to the same effect, to which he did. not in any way ■object.
There is other evidence in the record tending' to- show that what he agreed to give was not a mere license, but an easement. Enough lias been referred to, however, to1 indicate that the finding to which reference is made in the first part of the prevailing opinion, instead ■of being without evidence to support it,, is abundantly sustained by the evidence. We start, therefore, with the proposition, that McComb didi agree to give such easement, and the question is, is it of such a kind or character as a court of equity will enforce? In answer to the question it is suggested that since no deed had been given when the asylum purchased the property the agreement, was a mere chose in action and did not pass- under the foreclosure sale. But it is to be observed that when the property was sold tire sewer and roadway had been completed. So far as the realty company was concerned the contract had been performed. It had built the road and sewer across the McComb lands precisely as it agreed to do. .All that remained was to connect whatever buildings might be erected upon its property with the sewer which extended some twenty feet onto its land'. This was the condition when the asylum took title. Thé conveyance by the referee of the’ land covered by the mortgage carried with it as an appurtenance to the thing conveyed, McComb’s agreement to give an easement of sewerage and roadway. It was the visible means of access to and from the property. It was the only system of sewerage connected with it.
The .case in some respects is much like Newman v. Nellis (97 *546N. Y. 285). There the defendant had. promised orally to open a street over his property for the use of his grantee, plaintiff’s husband and others. The street was thereafter opened and used and the court held that the plaintiff, who had subsequently acquired the property conveyed to her husband, could restrain the defendant from closing the' street, Andrews, J., saying: “ The right of the plaintiff to maintain the action is questioned on the ground that the right of way did not pass to her by the deed from her husband. The way or street is not mentioned in the deed, nor is the word ‘ appurtenances ’ used. But the way was an apparent easement at the time the deed was executed, and if it was then legally appurtenant to the lot, or in other words, if it was enjoyed by right by the plaintiff’s husband as an appurtenance to the land, it passed by.the conveyance of the lot by metes and bounds, although not mentioned and although the word ‘appurtenances ’ was not used. (Huttemeier v. Albro, 18 N. Y. 48; 2 Wash. 279.)* We are. of opinion that the way having been opened, and the right which before rested in contract having thereby become consummate by the act of the owner of the land, in pursuance of a promise based upon a valuable consideration, although by parol, the easement became a perfect legal right attached to the land, the burden and benefit of which bind the respective parcels and follow the legal title.”
The principle announced in that case, it seems to me, should be applied to this. For a valuable consideration McComb had agreed to grant the easements in question and in pursuance of the agreement the realty company paid the consideration, entered upon his land, and at a large expense constructed the sewer and roadway as the parties had agreed. -The contract having been performed by the realty company it thereby acquired- a right or easement which a court of equity ought to enforce or protect, and this easement or right, whichever it may be called, passed to the asylum. (Dempsey v. Kipp, 61 N. Y. 462; Rindge v. Baker., 57 id. 209.) As was said in the case last cited': “ As a court of equity will take a parol contract for the sale of lands out of the statute of frauds, when it is partly performed, it will, on the same principle, treat an executed parol contract for an easement as equivalent to a grant under seal, where the parties cannot be restored to their original position.”
*547Here, it is perfectly obvious that the parties cannot be restored to their original position, and for that reason the court ought to exercise its equitable powers to compel the representatives of McComb to do what he agreed to and this because of the well-recognized rule that where one person has induced another, upon the faith of his promise, to spend money or labor for which lie can only be remunerated by the enjoyment of the thing promised, equity will compel the promisor to give such writing as will enable the promisee to enjoy the thing promised. (Flickinger v. Shaw, 87 Cal. 126; Russell v. Hubbard, 59 Ill. 335; Joseph v. Wild, 146 Ind. 249; Raritan Water Power Co. v. Veghte, 21 N. J. Eq. 463; Lacy v. Arnett, 33 Penn. St. 169; Olmstead v. Abbott, 61 Vt. 281.)
It would be most unjust and inequitable, as the case now stands, to deprive the asylum of the right to use the sewer and roadway. It has spent between $800,000 and $900,000 upon its property and unless it can use the sewer as it now exists it will cost in the neighborhood of $100,000 more to provide sewer facilities. It nowhere appears that the use of the sewer will injure, the plaintiffs or be prejudicial to their rights, but unless the asylum can do so it must necessarily result, to its great damage. Under such circumstances a court of equity ought to enforce the agreement which McComb made. (Rindge v. Baker, supra; Miller v. Ball, 64 N. Y. 286; Newman v. Nellis, supra; Hay v. Knauth, 169 N. Y. 298.)
I think the judgment appealed from should be affirmed, with costs.
Hottghtojst, J., concurred.
Judgment reversed and new trial ordered, with costs to appellants to abide event.
See 3 Waskb. Real Prop. (3d ed.) 379.— [Rep.