DISSENTING OPINION BY JUDGE BIGGS.
In 1891 the Hodiamont Realty Company owned ten acres of land immediately west of the western limits of the city of St. Louis and situate in St. Louis county. There were two small tracts between this land and the city. The land is now known as the “Hodiamont subdivision,” the company having subsequently (to wit in the spring of 1892) divided it into lots and streets. Two strips of land extending north and south from Maple avenue through the' subdivision and *479designated as alleys in the majority opinion, were reserved from sale by the realty company and were not dedicated to public use. With the view of selling the lots the company upon a parol license from the road overseer of the district established a water main on a public road known as Maple avenue, which was the southern boundary of the subdivision, and two supply pipes were laid north from Maple avenue along the two strips of land to Bartmer avenue, the northern, boundary of the subdivision. Connection was made with the water system of the city at the eastern terminus of Maple avenue. A water ineter was put in at the point of connection, which was the western limit of the city’s system. The company built a house on lots 96 and 97 of the subdivision. The house was constructed with the necessary pipes. When the house was completed, to wit, March, 10, 1892, the company sold the house and lots to the plaintiff. At the date of the sale the pipe leading from the house had not been connected with the supply pipe in the rear of the premises. In 1893 the company, haying disposed of all lots in the subdivision, wound up its affairs and relinquished its charter. Before doing so it sold to the defendant Frank O’Bear the water pipes and meter and all appurtenances. The tax charged by the city for water supplied to the residents of the subdivision was one hundred and sixty-five dollars for six months. Prior to June, 1897, the business of looking after the supply of water was intrusted to a voluntary company, composed of residents of the subdivision. This company paid the water tax to the city and imposed a water tax on the inhabitants of the subdivision sufficient to meet the charges of the city. In June, 1897, O’Bear asserted his right to the control of the water pipes and meter, and in a contest between him and the voluntary company of citizens, the water commissioner of the city issued the license to him. After procuring the license O’Bear imposed a water tax against each householder in the subdivision, which was at the same rate-as that charged by the city. The plaintiff *480refused to pay tbe license tax, and O’Bear having threatened to shut off the water from his house, he instituted this suit to enjoin him from carrying his threat into execution. After reciting substantially the foregoing facts the bill charged “that defendants or either of them have no rights in said water meter, sewer or water pipes or any of them and have no right to control or manage the same as against plaintiff and the other property owners of the subdivision. That the threatened interference with the right of plaintiff and such property owners to the uninterrupted control, use and management of said entire system of water, meter, water pipes and sewer and of the water supplied by and through the same will cause irreparable injury and continuing loss and damage to plaintiff and said numerous property owners and to the lands so owned by them, for which ño adequate remedy exists at law.”
O’Bear in his answer pleaded his purchase of the water pipes and meter and his right thereunder to manage the same and to charge for the water. He also averred that the tax imposed by him for water was reasonable, being the same as that imposed by the city. In the reply the plaintiff denied the alleged purchase by O’Bear, and averred that at the time he pretended to have bought the water system the realty company had sold all of the lots in the subdivision and had wound up its business growing out of the sales and surrendered its charter. The plaintiff also averred that under the conveyances made by the realty company a common and exclusive right to use the water pipes and meter for the purpose of obtaining a supply of water was vested in the grantees therein. Upon the hearing of the cause the temporary injunction was dissolved and the proceedings dismissed. The plaintiff has appealed.
*481Appurtenances. *480At the trial great latitude was given in the introduction of evidence. The pleadings, however, present but a single issue. The question is, who has the right to manage the water pipes and meter? On the one hand the plaintiff contends *481that the right is a common one belonging to the aggregate-body of property owners in the subdivision, and that any one-of such property owners, -suing for himself and others, can complain of its infringement. On the other hand O’Bear claims that the property owners bought only the right to connect, their improvements with the water pipes and to receive a supply of water at reasonable rates, and that the title or ownership of the water system itself remained in the realty company. In the deed to plaintiff the water pipes are not mentioned. In some of the other deeds executed by the realty company the-right to connect with the supply pipes is expressly granted. In none of them are the pipes sold. The deed of the realty company to plaintiff conveys the two lots and “the appurtenances thereto.” What are appurtenances as applied to the water system ? Undoubtedly the pipe leading from the house-to the supply pipe in the alley is an appurtenance to plaintiff’s lots, and when the special purpose for which the water system was constructed is taken into consideration it may be safely asserted that the right to connect plaintiff’s property with the system-also passed by the deed as an appurtenance. I am also of the opinion that under the circumstances in evidence the plaintiff' acquired the right'to have his premises supplied with water-at reasonable rates and that the realty company so obligated itself. But the contention of the appellant goes much further and is to the effect that by the terms of the various deeds the-entire property in the water main and the supply pipes and the-right to control or arrange for the supply of water vested in the aggregate body of purchasers of the subdivision.- The-question involved is what incorporated rights or easements belonging to the grantor and situate on land belonging to him other than that conveyed will pass by implication as an appurtenance to the land mentioned in the deed. My associates hold that any such right which is reasonably necessary to the full and free enjoyment of the estate conveyed will pass as *482an appurtenance. Some of the authorities cited by Judge Bland in his opinion sustain this view, but the great weight of authority is to the effect that the ownership of the right or easement must be absolutely necessary or indispensable to the enjoyment of the property sold. This is the law in this state as declared by Judge Sherwood in Barrett v. Bell, 82 Mo. 110. This case has not been overruled, modified or questioned. In the case at bar the petition fails to aver, and the evidence does not show, and my associates do not find, that the use and ownership of the water system is absolutely essential to the ownership of plaintiff’s property. They only find that it is reasonably necessary to its use. There was evidence tending to prove that the plaintiff relied on the system for water, but he did not attempt to show that he could not provide water by digging wells or cisterns at a reasonable cost. It must be remembered that the plaintiff’s property is situated in the country, and there was nothing to prevent him from digging wells or ponds, as is usually done in providing for a supply of water in country districts. In Johnson v. Jordon, 2 Met. (Mass.) 234, it appeared that A. 'owned two adjoining messuages. He constructed a drain through both. He sold both tracts on the same day without mentioning the drain in either deed. The purchaser of the upper estate entered on the other tract for the purpose of cleaning the ditch, for which he was sued in trespass. In justification he claimed that the right to the use of the drain passed to him under his deed as an appurtenance to the land conveyed. The court held that he acquired no such right by implication, if by reasonable labor and expense he could make a drain without going through the other tract. This case was cited by Judge Sherwood with approval in Barrett v. Bell, supra, and hence must be regarded as the law of this state. Therefore in my judgment the opinion in the case at bar is opposed to that of Barrett v. Bell, supra, and for this reason I ask that the cause be certified to the supreme court.