Van Sandt v. Royster

Supreme Court of Kansas · 1938 · Property

Propertyeasementsimplied easementprior usedrainageimplied easementquasi easementprior use

Facts

Laura A. J. Bailey originally owned adjoining lots 19, 20, and 4, and before selling the parcels a private lateral sewer was laid from the house on lot 4 westward across lots 20 and 19 to a public sewer in Highland Avenue. Bailey first conveyed lot 19 to Jones and later conveyed lot 20 to Murphy, both by general warranty deeds without reservations; the houses later built on lots 19 and 20 were connected to the same lateral sewer, which was continuously used for more than thirty-three years. The sewer pipe was underground and not visible on the surface, but plaintiff knew when he bought lot 19 that his house had modern plumbing that had to drain into a sewer. After plaintiff discovered sewage flooding his basement in 1936, he learned for the first time of the lateral sewer running across his property and sued to stop defendants' use of it.

Issue

Whether defendants had an easement by implication to continue using the underground lateral sewer across plaintiff's land after severance of the formerly unified tract. Also, whether plaintiff took free of any such easement because he was a bona fide purchaser without notice.

Rule

An easement by implication arises from the inferred intention of the parties under the circumstances of a conveyance, rather than from the language of the deed alone, and may arise in favor of either the conveyor or the conveyee. In determining whether such an easement exists, important factors include whether the claimant is grantor or grantee, the terms and consideration of the conveyance, the extent of necessity, reciprocal benefits, the manner of prior use, and the extent to which that prior use was or might have been known to the parties. An underground drain or sewer may qualify as an apparent easement when connected appliances or circumstances would disclose it upon reasonably prudent investigation.

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Nina Calder owned two adjoining parcels in Topeka, Kansas: a house lot on the east and a vacant lot on the west. Before selling the west lot, she had installed an underground drain carrying wastewater from the house across the west lot to a public line; the buyer of the west lot, Owen Price, was told about the drain at closing. Nina later kept using the drain from the retained house lot, and Owen now argues that no easement exists because his deed contained no reservation.

Who is most likely to prevail?

Explanation. The majority rejected any absolute rule barring implied easements in favor of a grantor absent an express reservation. Instead, the easement arises from inferred intent under the circumstances of severance, considering factors such as prior use, necessity, and the parties' knowledge. Here, the drain existed before severance, served the retained parcel, and the grantee knew of it, so an implied easement is most likely recognized.