Citation. 148 Kan. 495, 83 P.2d 698, 1938 Kan.
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.
Held. 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.
Discussion. The court follows the Restatement of Property factors rather than the common law rule of strict necessity.