This action was instituted, by the plaintiff to restrain the defendants from obstructing the drainage, from the premises of the plaintiff through the premises of the defendants, to the public sewer.
After a trial at Spe.cial Term the injunction which had been previously granted was continued, and judgment entered accordingly, from which the defendants appeal. Previous to November 1, 1861, Levi A. Dowley was the owner of land situated in the city of New York, known as lots Nos. 31, 33, 35 and 37 on Broadway. He erected thereon the buildings in question and located drain pipes connecting them with the public sewer. The drainage from lots 31 and 33 was conducted into and through a pipe passing through lots 35 and 37. On the 1st of November, 1861, Dowley conveyed lots 31 and 33 to. Henry Mariet, by a deed which contained a covenant of warranty, and also a covenant for quiet enjoyment. The deed contained the following: “As the ^ame are now built upon and in the occupancy of the said party of the second part;” “to have and to hold the same with the appurtenances.” This deed was recorded the same day it was executed. Mariet and wife conveyed the same premises to Thompson J. S. Plint, the-plaintiff, on the 31st day of March, 1863, by deed which .contains the following provision: “ As the same are now built upon and in the occupancy of the said party of the first part, together with all and singular the tenements, hereditaments and appurtenances thereto belonging.”
On the 25th of November, 1861, Dowley and wife conveyed lots 35 and 37, to Augustús Hemenway, the testator of the defendant, which deed contains the following : “As the same arre now i/nclosed, built upon and oecupiedP
'When Dowley conveyed to Mariet, he knew precisely the condition of the premises, and made the conveyance accordingly, and the language of the deed above stated, shows that he intended that *457his grantees should receive the premises, with the easement, namely the right of sewerage through the portion of the land reserved by Dowley. It is quite evident from an inspection of the deed to Hemenway that Dowley intended to convey to him lots thirty-five and thirty-seven, subject to such easement. Doubtless he might have employed more apt words to convey such intention. The words, “ Ns the sa/me a/re now unclosed, built upon and occupied] incorporated in a deed, could not fail to arrest the attention of a reasonably careful man, and suggested an inquiry in regard to such occupancy, as to its nature and extent. (Nicholas v. Chamberlain, Cro. Jac., 121; Lampman v. Milks, 21 N. Y., 505; Woodhull v. Rosenthal, 61 id., 382; Roberts v. Roberts, 55 id., 275.)
The phraseology of the deed from Dowley to hlariet, which was recorded when Hemenway purchased, should also have put him on inquiry in regard to the manner the premises were occupied. In purchasing property situated in a populous city, it would seem that the subject of sewerage, would be most likely first to attract the attention of a purchaser, and that a slight intimation would put him on inquiry in regal’d thereto.
Considering the form of the several conveyances, the situation of the premises, and the relation of the parties, we are of the opinion that the defendant’s acquired their title subject to the right of sewerage, as the same was, substantially, possessed and enjoyed by JVIariet, at the time of the conveyance to Augustus Hemenway. The case of Butterworth v. Crawford (46 N. Y., 349), does not, in our judgment, conflict with the views expressed above, when applied to the facts of this case. It is true the court in this case, finds as a fact, that the defendants had no actual knowledge that the drain pipe from the plaintiff’s premises entered the defendant’s premises, and that it was not observable upon ordinary inspection. Yet we deem such finding not conclusive upon the rights of the plaintiff, when considered in connection with the other facts of this case.
The appellant further insists, that if any such right was ever possessed by the plaintiff, the same became forfeited, -in consequence of the manner the plaintiff exercised the same; that he has abused such right to such an extent, as should deprive him altogether of any enjoyment thereof. The court finds that no injury has arisen in this respect from the maimer the plaintiff has used his premises. *458Such finding is as follows : “ But the same has never obstructed the free passage through said pipes or drain, nor injured the same, nor has there been any choking or obstruction of said pipes or drain, except the one before mentioned, as occasioned in the winter of 1869-70, from the dislocation aforesaid.”
The manner of such use has not been changed; it has been increased, but within the capacity of the conduit. A question of this nature, when applied to the use of property in such a city where changes become necessary, from various causes, in the use of buildings, must necessarily be regarded by the courts with reasonable ■liberality. Especially so, when it affirmatively appears, that no injury has arisen from such use.
In regard to the question of costs, it was matter of discretion with the trial court, with which this court should not interfere, but as to the costs of the appeal the appellant should pay them, as he fails upon the entire case here presented.
The judgment must be affirmed with costs.
Beady, J., concurred; Davis, P. J., not sitting.Judgment affirmed, with costs.