Van Sandt v. Royster

Facts

Laura A. J. Bailey owned a plot in Chanute, Kansas, that included lots 19, 20 and 4, running east from Highland avenue. Her house stood on lot 4, the easternmost lot. In the latter part of 1903 or the early part of 1904, the city built a public sewer in Highland avenue, west of lot 19. About the same time, a private lateral drain (a side sewer) was built from the Bailey house, west across lots 20 and 19, to the public sewer. On January 15, 1904, Bailey conveyed lot 19 to Jones by a general warranty deed with the usual covenants against encumbrances and no exceptions or reservations. Jones built a house on it and connected it to the drain. Bailey also sold lot 20 in 1904, and that lot later passed to Royster. Gray later held title to lot 4. Van Sandt got part of lot 19 in 1924 from Reynolds, who had bought it from Jones in 1920. Nothing about the drain was in the public land records. The pipe lay several feet underground, with nothing visible on the surface. Before buying, Van Sandt and his wife inspected the property carefully and knew the house had modern plumbing that had to drain into a sewer. In March, 1936, sewage flooded Van Sandt's basement, and he first learned of the drain. The trial court found that the original owners knew of the drain and that the three properties had used it continuously for more than thirty-three years.

Issues

1. When a landowner sells one lot by a deed with no reservation, can an easement for an existing underground sewer drain be implied in favor of the land the grantor keeps?
2. Did Van Sandt, who inspected the property when nothing about the drain was on record, take free of the easement as a purchaser without notice?

Holding

On the facts the trial court found, the court held that an easement by implication was created for the sewer drain across Van Sandt's lot, even though the grantor kept the benefited land. The easement was necessary to the grantor's comfortable enjoyment of her property, and Van Sandt was charged with notice of it.