Supreme Court of Kansas, 1938
83 P.2d 698
Highland avenue, which runs north and south, intersects with 10th street, which runs east and west, in the city of Chanute, Kansas. In early 1904, Bailey owned a tract of land lying east of Highland and south of 10th street. Moreover, running east from Highland and facing north on 10th street were lots 19, 20, and 4, which contained Bailey’s residence on the east part of the land. In either late 1903 or early 1904, the city built a public sewer in Highland avenue, west of lot 19. Around the same time, a private lateral drain was constructed running from the Bailey residence on lot 4 westerly through and across lots 19 and 20 to the public sewer. Bailey conveyed lot 19 to John J. Jones on January 15th, 1904 by general warranty deed with covenants against encumbrances and no exceptions or reservations. Accordingly, Jones built a dwelling on the north part of lot 19. In 1920, Jones conveyed the north 156 feet of lot 19 to Carl Reynolds, who then conveyed it to the plaintiff, Van Sandt, in 1924. Moreover, in 1904, Bailey conveyed lot 20 to Murphy, who built a home on the land, by general warranty deed without exceptions or reservations. Title eventually passed to the defendant, Royster, by mesne conveyances. Furthermore, another defendant, Gray, succeeded to title of lot 4, upon which the Bailey home stood at the time of the sales of 19 and 20. In March, 1936, the plaintiff’s basement flooded with sewage and filth to a depth of 6-8 inches. Upon investigation, plaintiff discovered for the first time the existence of the sewer drain extending easterly across the defendant Royster’s property to the property of Gray. Finally, the plaintiff commenced this cause of action after the defendants refused to cease draining and discharging the sewage across the plaintiff’s land.
The previous court held in favor of the defendants and the plaintiff now appeals.
Whether an easement will be implied in favor of a grantor if the existence of a sewer drain running through the grantee’s land is not mentioned in the conveyance or visible to the eye.
If land may be used without an easement, but cannot be used without disproportionate
effort and expense, an easement may still be implied in favor of either the grantor or grantee on the basis of necessity alone.
First off, nothing on the land visibly indicated the existence of the drain or the connection of the drain with the houses of the parties. The trial court found that an appurtenant easement existed in the said lateral sewer as to all three of the properties involved in the controversy here. Accordingly, the court denied the plaintiff’s prayer for relief and instructed the plaintiff to not interfere with the lateral drain or sewer. Plaintiff further alleges that he took the land free from encumbrances, such as the easement, and was a bona fide purchaser, without notice of the easement. Nevertheless, the trial court held that the lateral sewer was necessary for the reasonable use and enjoyment of both parties’ land, with which this court also agreed. An easement represents the interest one may have in land possessed by another, therefore logically providing that an owner cannot have an easement in his own property. The owner of property may make use of one portion of his/her property in order to fully benefit from another part, referred to as a quasi easement. Although easements follow a quasi-dominant tenement, i.e. the part of the land benefitting from the quasi easement, when conveyed by a grantor to a grantee, legal authorities are split when determining if the grantor retains the easement interest after conveying the quasi-servient tenement. American courts, such as Howley v. Chaffee, hold that an easement by implied reservation will only be created in favor of the grantor out of strict necessity. To hold otherwise, in the absence of express reservations in the warranty deed, would conflict with several fundamental notions underlying a conveyance, e.g. a grantor shall not derogate from his own grant. Here, the court agrees and further states that if the claimant of an easement is the grantor instead of the grantee, it must be considered as one of many factors determining whether an easement by implication was created. An easement by implication arises as an inference of the parties’ intentions at the time of the conveyance drawn from the circumstances, as opposed to language, underlying the conveyance. Furthermore, the pertinent factors involved in determining whether the parties intended to create an easement by implication include:
- Whether the claimant is the grantor or grantee
- the terms of the conveyance
- consideration given
- whether the claim was made against a simultaneous grantee
- the extent of necessity of the easement
- whether reciprocal benefits go towards the grantor or grantee
- the manner in which the land was previously used
- the extent to which the prior use was or might have been known by the parties (Restatement of Property)
Furthermore, an easement by implication will result out of a prior use that is continuous, apparent, and necessary. Here, the sewer drain was not visibly apparent to the plaintiff, yet this does not completely prove the easement was not apparent. For one, the prior owner of lot 19, John Jones, knew the lateral sewer existed for the benefit of the lots owned by Bailey at the time of the conveyance. In addition, the easement was necessary to the enjoyment of the grantor’s property. As is the case here, if land may be used without an easement, but only with disproportionate expense and effort, then an easement may be implied in favor of either the grantor or grantee out of necessity alone. Moreover, the plaintiff’s allegation of not having notice of the easement at the time of conveyance is without merit because both he and his wife completed a thorough investigation of the property before purchasing, i.e. they should have known per due diligence. The plaintiff should have known that the home’s modern plumbing needed to drain into a sewer somewhere. Therefore, under the facts of the case, the trial court rightfully found that the lateral sewer represented an apparent easement and, likewise, Van Sandt was charged with notice of its presence.
The Supreme Court of Kansas affirmed the judgment of the trial court in favor of the defendants and held that an easement by implication was created under the facts.