Citation. 148 Kan. 495, 83 P.2d 698, 1938 Kan.
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Brief Fact Summary.
The Plaintiff, Van Sandt (Plaintiff), discovered that his basement was flooded with sewage and brought an action to enjoin the Defendant, Royster (Defendant), from using and maintaining the underground sewer. The pipe crossed a single property encompassing both lots and the adjacent lot in 1904 that was owned by Bailey.
Synopsis of Rule of Law.
An easement is implied to protect the probable expectations of the grantor and grantee that a prior existing use will continue after the transfer. Thus, where the grantee is aware of a reasonably necessary use of the grantee’s property for the comfortable enjoyment of the grantor’s property an easement by implication is created.
The Plaintiff owns lot 19 and the Defendant owns lot 20. Both lots were part of the adjacent estate, lot 4, which was owned by Bailey in 1903-1904 and is now owned by Gray. Bailey constructed the pipe in late 1903 or early 1904 for the common benefit of all three lots. At that time, it was all one property so there is no dominant / servient estate. Lot 19 was conveyed in January 1904 and Lot 20 was also conveyed in 1904. The original conveyee of Van Sandt’s land was aware of the lateral sewer.
Is there an apparent easement even though the sewer drain pipe is not readily visible?
Can a common owner make use of part of his land for the benefit of another part, thereby creating a quasi-easement, which creates an easement by implied reservation upon severance of the servient estate from the dominant one?
An apparent easement existed. An easement need not be visible to be apparent. Appliances connected with and leading to the property were obvious adaptations of the property that led to a sewer. The Plaintiff purchased the property upon careful inspection and knowledge that the property had modern plumbing. Plaintiff was thus charged with notice of the sewer.
An easement by implication was created. The easement was necessary for the comfortable enjoyment of the grantor’s property (Bailey, the common owner, installed the plumbing for the benefit of all three lots). If the land cannot be used without disproportionate effort and expense an easement may still be implied in favor of the grantor or grantee on the basis of necessity alone. The original purchaser was aware of the sewer and thus there were reasonable expectations concerning the prior existing use.
The court follows the Restatement of Property factors rather than the common law rule of strict necessity.