Newton, in 1859, conveyed by deed to Bent and his heirs and assigns "a certain spring of water with the land under the same," and the right of entering upon the land of the grantor for the purpose of constructing and maintaining an aqueduct for conducting water from the spring to Bent's dwelling-house. The legal construction of the deed is, that Bent thus acquired a title in fee to the spring, and an easement in the soil for constructing the aqueduct and keeping it in repair. It is possible that this is not what the parties intended, and that upon a bill in equity for the reformation of the deed, it may appear that they intended and understood an easement instead of a fee in the spring.
In 1889, Sabin, administrator of the estate of Bent, quitclaimed to the defendants all the right and interest Bent had in the spring *Page 487 at the time of his decease. Whether Bent's estate was settled in the solvent or insolvent course, and whether the administrator sold with or without license, may be material facts with regard to which there is no finding by the referee.
In the mortgage from Bent to Dickinson, and in the deed from Dickinson to the plaintiff, no mention was made of the spring or of the aqueduct easement, nor was any mention made of "appurtenances" in the grating part of either. If an aqueduct easement became appurtenant to the premises mortgaged and afterwards conveyed, it passed with the grant of the plaintiff's land. Spaulding v. Abbot, 55 N.H. 423; Kent v. Waite, 10 Pick. 138. But land cannot be appurtenant to land: the mortgagor's interest in the spring was not an easement, but the fee: and the rule is, that upon a conveyance of land there is no implied creation and grant of an easement in the grantor's adjoining land. Mullin v. Eaton, Hillsborough, December, 1889.
The defendants contend that whatever easement Bent and his successors in title had in the soil of Newton has been extinguished by twenty years' non-user. A distinction is made in the books between easements acquired by deed and those acquired by prescription. As to the former, the well settled doctrine is, that "no length of time of mere non-user will operate to impair or defeat the right. Nothing short of a use by the owner of the premises over which it was granted, which is adverse to the enjoyment by the owner thereof, for the space of time long enough to create a prescriptive right, will destroy the right granted." Wash. Ease. (ed. 1863) 551; Ang. Wat. (7th ed.), ss. 240-252; 3 Kent Com. 448; White v. Crawford,10 Mass. 183; Arnold v. Stevens, 24 Pick. 106; Owen v. Field, 102 Mass. 90,114; Smyles v. Hastings, 22 N.Y. 217, 224; Butz v. Ihrie, 1 Rawle 218, 222; Townsend v. McDonald, 12 N.Y. 381; Farrar v. Cooper, 34 Me. 394, 400; Eddy v. Chance, 140 Mass. 471.
In this case the plaintiff's easement, if he has one, was acquired by deed. A mere non-user of the easement without proof of adverse enjoyment by the owner of the land is not sufficient evidence of an abandonment of the right. There is no such evidence in this case. The water was stopped from flowing through the aqueduct after the fire in 1865, and has remained stopped to the present time. But it does not appear that Newton or his successors in title stopped it or performed other acts of adverse enjoyment prior to the trespass complained of, committed in 1889. The presumption is just as great, if not greater, that Ben stopped it to prevent waste or damage, as that the other party stopped it for the purpose of bringing about an extinguishment of the easement twenty years later. And the finding of the referee, that to the time of the alleged trespass neither the plaintiff nor his grantor had been disturbed in the use of the water since the deed of 1859, is conclusive that there has been no adverse interference with the aqueduct. *Page 488
The plaintiff may amend his declaration at the trial term by filing a bill in equity (Metcalf v. Gilmore, 59 N.H. 417, 432) for a reformation of Newton's and Dickinson's deeds and Bent's mortgage, and the bill may be tried at the earliest convenience of the parties. The facts not found may be material in the suit at law.
There is no legal difficulty in the plaintiff's heirs' (the plaintiff having deceased) having all the conveyances reformed and their rights established according to the intent of the parties. That may require his administrator, heirs, devisees, or all, to be made parties to the bill. It is unnecessary to decide whether it may be inferred, from the facts that appear in the case, that the intent was to mortgage and convey the spring, for trial of a reformatory bill will bring out all the facts and enable the trial judge to do equity.
All concurred.