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The doctrine of implied grant of easement is based upon the principle that where, during unity of title, the owner imposes an apparently permanent and obvious servitude on one tenement in favor of another, which at the time of severance of title is in use and is reasonably necessary for the fair enjoyment of the tenement to which such use is beneficial, then, upon a severance of ownership, a grant of the dominant tenement includes by implication the right to continue such use. That right is an easement appurtenant to the estate granted to use the servient estate retained by the owner.
In 1915 defendants acquired the corner lot real property in Minneapolis, on which there was a duplex dwelling near the corner facing Twelfth Avenue, known as 1312 Twelfth Avenue north, and a small dwelling toward the rear facing Humboldt, known as 1206 Humboldt Avenue north. Both houses were equipped with plumbing serviced by a common sewer drain which connected with the public sewer in Humboldt avenue. On February 23, 1921, defendants acquired the real property now owned by plaintiffs, located immediately east of the duplex and known as 1310 Twelfth avenue north. At that time this property was without plumbing and sewer connection. In 1922 defendants installed plumbing in the house at 1310 Twelfth Avenue, which they connected with a sewer drain they laid below the basement floor and underground extending from the rear of the house across the properties of the parties into the basement of the duplex, where it was connected with the sewer drain from the duplex to the street. After this connection was made the one sewer drain connecting with the public sewer in Humboldt avenue serviced the three houses on defendants' property. The pipes became obstructed and clogged on numerous occasions, causing sewage to back up and thus creating an unsanitary and unhealthful condition.
On February 25, 1921, two days after defendants became the owners of 1310 Twelfth avenue north and about one year before they installed the plumbing and made the sewer connection there, they executed a mortgage of the property, with the appurtenances thereto belonging, to one Margaret Roggeman. The mortgage contained the usual covenants of a warranty deed. In July 1936, Margaret Roggeman acquired title through foreclosure of the mortgage. She did not inspect the property either when she took the mortgage or when she foreclosed it. She dealt through an agent, who afterwards looked after the renting and who, out of rents collected, paid defendant Plotkin for cleaning and repairing the sewer. On August 8, 1938, plaintiffs purchased the property from Roggeman. They dealt through Roggeman's agent. Plaintiff Nicholas Romanchuk testified that he observed the drainpipes in an unfinished and unused part of the basement. He also testified that the agent told him that the sewer drain connected with the public sewer in the street. Neither the mortgage to Roggeman nor the deed to plaintiffs mentions any easement in the sewer across defendants' land. In 1941 the common drain connecting these properties with the city sewer became clogged, necessitating repairs. Plaintiffs' proportionate share of the repairs was $25, of which they paid five dollars prior to trial and the balance during the trial.
On October 22, 1941, defendants Samuel Plotkin notified plaintiffs that on November 5, 1941, the connection of the sewer drain serving their property with the drain to the sewer in the street would be severed. Plaintiffs then brought this action to enjoin defendants from disconnecting their sewer connection and to compel them to remove the fence. The lower court ruled that plaintiffs had an easement for the use and maintenance of the sewer drain across defendants' property connecting with the sewer in Humboldt avenue north, subject to the requirement that they pay their proportionate share of the cost of repairing and maintaining the same.
Are the plaintiffs entitled to an easement for the use and maintenance of the sewer drain across defendants’ land?
It is commonly said that three things were essential to create an easement by implication upon severance of unity of ownership, viz.: (1) a separation of title; (2) the use which gives rise to the easement shall have been so long continued and apparent as to show that it was intended to be permanent; and (3) that the easement is necessary to the beneficial enjoyment of the land granted.
In the instant case the plumbing fixtures and their connection with the sewer pipes were plainly visible. The pipes extended from the rear of plaintiffs' house toward defendants' duplex. A plumber easily could have ascertained that the pipes, although underground and invisible, extended under the duplex, where they connected with the drain leading from the duplex to the sewer in the street. Further, the use of the drain was highly beneficial and convenient to the use of plaintiffs' property. The reasonable construction of the mortgage under which plaintiffs claim title in the light of the surrounding circumstances was that the use of the sewer drain was an appurtenance to plaintiffs' property which passed under the mortgage. Lastly, it appeared that the parties placed a practical construction on their rights by which they in effect recognized plaintiffs' right to the easement. Plaintiffs were permitted to continue to use the sewer. Defendants charged them for repairs and maintenance, and plaintiffs paid the charges. A practical interpretation by the parties that an easement exists supports an inference that the easement is one of legal right.