By the Court.
Daly, F. J.The only feature which distinguishes this case from Pyer v. Carter, 1 Hurlst. & Nor. 916, is that the deed here conveying the servient tenement contained a covenant that it was free of all charges, incumbrances, &c., &c., but that distinction does not, in my judgment, affect the principle upon which Pyer v. Carter was decided, which was, in the language of Baron Watson, that it is in accordance with reason, that when the owner of two or more adjoining houses sells and conveys one of them to a purchaser, such *63house in his hands is subject to all the drains then necessarily used for the enjoyment of the adjoining house, without any express reservation or grant, because he purchases the house as it is; and he adds the very pertinent reason that the inconveniences in towns would be very great, if, when the owner of several houses conveys one of them separately, the purchaser of the house could stop up the system of drainage made for the benefit and necessary occupation of the whole.
Justice Selden, in Lampman v. Milks, 21 N. Y. Rep. 512, has stated very concisely, the rule necessarily to be deduced from the decision made in the early case of Robbins v. Barnes, Hob. 131, that “ upon the severance of two tenements belonging to the same owner, by the conveyance of one or both, they must be taken as they were at the time of the conveyance. If, therefore, the owner retains the tenement benefited, and sells that upon which the burden has been imposed, the purchaser takes the latter with the burden of servitude annexed.” It is, as the respondent has argued, the rule of the common law, that when the owner of two tenements sells one of them, the purchaser takes the one sold with all the benefits and burdens as between it and the other tenement, which existed at the time of the severance and sale, a proposition fully borne out by the authorities to which he has referred.
The owner of the two adjoining houses in this case, Nos. 83 and 85, built a vault, which was partly extended over both lots, from which vault he constructed a drain, extending over lot 85 to the sewer in 46th street. The vault and the drain was one general structure for the benefit of both houses, and when he severed the ownership by conveying lot 85, over which the drain was built, to the defendant, the defendant necessarily took it with the sewer-tube annexed. It does not affect the application of the rule that he covenanted in the deed that the lot then conveyed was free of incumbrance, because that was not an incumbrance. It was an easement which the owner of lot 83 had, after the severance, that the vault or cess-pool built upon both lots, and extending four feet over each, should continue with the drain from it over lot 85 to the sewer in 46th street. Easements are in certain cases incumbrances, but not in a case *64like this. In Whitbeck v. Cook, 15 Johns. 483, Chief Justice Spencer was of the opinion that even a highway through the land was not within the covenants of the deed an incumbrance, for the reason that the purchaser must be presumed to have known of the existence of a road over the land common to the public, and had no right to complain that the general covenants in his deed were broken by the existence of what he saw when he purchased the property; though the reverse has been held in Massachusetts and Connecticut, where a highway has been regarded as an incumbrance within the meaning of the covenant (Kellogg v. Ingersoll, 2 Mass. 96; Hubbard v. Norton, 10 Conn. R. 422).
But in a case, however, much more in point (Hendricks v. Stark, 37 N. T. 106), it was held, by the unanimous judgment of the Court of Appeals, that a party wall was not such an easement or incumbrance upon the premises as would relieve the defendant from his contract to purchase them, though he was ignorant that the walls were party walls when he made the contract. The failure of the defendant, says the court, to inform himself upon a subject upon which the contract was silent, shows that he was content to buy without being at the trouble of examination or inquiry, and a specific performance of the contract to purchase was enforced. Upon a contract to purchase, a party is not bound to take the property, if he finds that there is a subsisting legal incumbrance upon it, and this decision, therefore, necessarily proceeded upon the ground that a party wall is not such an incumbrance. A party wall is an easement creating a* community of interest between adjoining proprietors, and this is exactly what the vault and drain from it was, in this case.
This decision is an answer to the defendant’s second point, that the referee erred in excluding his offer to show that he had no notice of the vault and drain over the lot when he purchased it, and his third point is untenable. The injury complained of —the cutting off the drain—was an injury to the inheritance, which the plaintiff had the right to restrain by injunction, though he had leased the tenement, and it was in the the occupation of his lessee when the act complained of was done.
The report of the referee should be affirmed.