specially concurring:
I concur in reversing the judgment below but I do not concur in all that is said in the majority opinion. Appellee brought an action against appellant for damages to appellee’s crops grown upon lands which he had leased from Dumond, for the years 1905 and 1906. In each count of appellee’s declaration he charged that the Dumond land, which he had leased, had a perpetual easement to drain the water from the Dumond land through a tile drain which had been laid from east to west across a tract of land owned by Ascherman, thence across another tract owned by Smith and across the lands owned by appellant, Hoffman, where it emptied into an outlet, and that Hoffman wrongfully closed up the drain on his land, by means whereof the water' from the Dumond land was held back and not permitted to flbw off through said drain. Appellee charged in his declaration .that this easement was created by mutual consent by the several owners of land over which the drain was constructed, in accordance with the second section of the Drainage act of 1889. (Hurd’s Stat. 1965, p. 832.) Under that statute, to establish a drain or ditch for the mutual benefit of adjacent land owners, it is necessary that the several owners of the lands over which such drain or ditch is to pass shall consent to the construction of the drain, and without such consent no one can acquire a right, under that statute, to an easement, in the nature of an appurtenance, to have water pass off over the lands of his neighbor.
Appellee having averred the existence of an easement, as an appurtenance to the Dumond land, over the lands of appellant, the burden of proof was upon him to establish the existence of such easement, and a failure to do so entitled appellant to a verdict. There is no evidence whatever in this record that anyone having authority consented to the construction of this drain across the Smith tract. The Smith tract, it must be remembered, was east of appellant’s land and west of the Dumond land. The only consent shown by the evidence to construct the ditch across the Smith land was given by appellee’s landlord, Dumond, who was the administrator of Smith. The fee in the Smith tract belonged to the Smith heirs. The administrator had nothing to do with the real estate. He had no power to encumber it by giving consent to the establishment of any easement over it, in favor of his own land or that of any other person.
With the Smith tract eliminated from this drainage scheme we have this situation: Ascherman, on the east, consented to the establishment of the ditch over his land. Appellant, on the west, gave the consent for the ditch to pass over his land; but the intermediate tract, belonging to the Smith heirs, was entered and,the ditch constructed wrongfully and without authority of law.
It is difficult to see how it is possible that an easement could exist across the Hoffman land, as an appurtenance to the Dumond land, unless the intermediate tract belonging to the Smith heirs was also burdened with the same easement. It cannot be said, and is not pretended, that any legal right existed in favor of appellee to have the water flow from his land over the Smith tract. The only pretense of right is the establishment of this statutory ditch by a mutual consent, and the only consent shown by the evidence, so far as the Smith tract is concerned, is that given by Dumond, who had no power to give such consent. There is no continuity in the appurtenance from the lands of Dumond to the lands of appellant. Easements, such as highways and drains, in order to be appurtenant to land, must be connected with the land to which the appurtenances appertain. In Philbrick v. Ewing, 97 Mass. 133, it is held that where, at the time of the conveyance of a house and land, water was supplied to the house through a pipe laid under an oral license across the land of a third person to a highway, where it joined a pipe leading from the main pipe of an aqueduct company, no easement to maintain the pipes across the land of such third person passed by the deed. The right did not belong to the land conveyed and the grantor had no power to convey it as an easement appurtenant. The principle decided in this case is applicable here. The water in this drain, in its passage over the Smith land, could not be in virtue of an easement, because the right did not rest upon the consent of the owner. This situation is met by the majority opinion by invoking the doctrine of estoppel against appellant and in favor of a trespasser and a wrongdoer. This would seem to be a new application of the doctrine of estoppel.
I concur in reversing the judgment of the court below, not only for the error pointed out in the majority opinion, but also for the further error committed by the court in denying appellant’s motion for a directed verdict. In my opinion the evidence in this case fails to sustain appellee’s declaration.