Van Sandt v. Royster

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


Bailey owned three adjoining lots. The lots were numbered 19, 20 and 4. The residence of Bailey was on lot 4 as of 1904. In the latter part of 1903, the city constructed a public sewer system west of lot 19. At about that same time, a private lateral drain was built by Bailey across her lots to the road to connect with the city sewer line. Eventually, Bailey conveyed lot 19, the one closest to the street, to Jones by a general warranty deed with the usual covenants against encumbrances and containing no exceptions or reservations. Jones built a home on the lot, and in 1920 Jones conveyed the north 156 feet of his lot to Reynolds. Reynolds conveyed it to Van Sandt (P) in 1924. Bailey conveyed the middle lot (20) to Murphy by a general warranty deed who then built a house on it. By mesne conveyances title passed to Royster (D). The deed to Murphy was a general warranty deed without exceptions or reservations. Gray (D1) got title to lot #4 about the same time that lots 19 and 20 were sold. After receiving his lot, P noticed that his basement flooded with sewage and filth from the sewage line. P then discovered the sewer drain. The drain was several feet under the ground and there was nothing visible to indicate the existence of a drain or the connection to the drain with the houses. P brought suit to enjoin the two D's from using and maintaining the sewer drain running through P's land. He claimed that the Ds had no easement, and even if one had been created, P received his land free from easement because he was a bona fide purchaser without notice. P sought an injunction against the continued use of the sewer below his land. The trial court did not grant P's injunction; an appurtenant easement existed in the lateral sewer. Ds contend that the easement was created by implied reservation on the severance of the servient from the dominant estate and that also there was a valid easement by prescription. P appealed.