Van Sandt v. Royster

148 Kan. 495, 83 P.2d 698 (1938)

 

RULE:

Upon a severance of possession by conveyance, an easement or a profit results from an inference as to the intention of the parties. To draw an inference, the prior use must be known to the parties at the time of the conveyance or have been within the possibility of their knowledge. Each party is bound to what he intended and also to what he might reasonably have foreseen the other party expected. The parties are assumed to intend the continuance of uses that are in a considerable degree necessary to the continued usefulness of the land, especially those necessary uses that have so altered the premises as to make them apparent upon reasonably prudent investigation. The degree of necessity required to imply an easement in favor of the conveyor is greater than that required in the case of the conveyee. Yet, even in the case of the conveyor, the implication from necessity is aided by a previous use made apparent by the physical adaptation of the premises to it.

FACTS:

Plaintiff landowner knew that his house was connected to a sewer when he purchased it but was unaware of the location of a lateral sewer drain that ran through his property or the fact that the drain had been constructed 30 years earlier for the use of neighboring properties as well as his own. There was no mention of an easement in any deed. The problem arose when sewage backed up into his basement. He filed a suit against the defendants to cease draining and discharging their sewage across his land. The trial court ruled that an easement by implication had been created by the common predecessor of the parties. The lateral sewer "was an appurtenance to the properties belonging to plaintiff and defendant, and the same is necessary to the reasonable use and enjoyment of the said properties of the parties."

ISSUE:

Was the servient estate is entitled to an easement even if the sewage lines are not visible?

ANSWER:

Yes.

CONCLUSION:

On appeal, the court held that when an owner utilized part of his land for the benefit of another part, a quasi easement existed, and that if the owner conveyed the quasi dominant tenement, an easement corresponding to the quasi easement was ordinarily regarded as vested in the grantee, provided that it was of an apparent continuous and necessary character. The court held that parties were assumed to intend the continuance of uses that were in a considerable degree necessary to the continued usefulness of the land, especially those necessary uses that had so altered the premises as to make them apparent upon reasonably prudent investigation. The court found that the existence of plumbing fixtures and lines in the landowner's house made the easement apparent although it was not visible.

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