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Wolek v. Feo

Decided: March 18, 1960.

ANNA WOLEK, PLAINTIFF-APPELLANT,
v.
JOSEPHINE DI FEO, DEFENDANT-RESPONDENT



Goldmann, Conford and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

[60 NJSuper Page 326] Plaintiff brought an action in the Chancery Division to enjoin defendant's use of plaintiff's sewer and to recover damages. The complaint alleges that she has only recently ascertained that sewage from defendant's adjoining dwelling is flowing into a sewer located on her property, and this without her prior knowledge, consent or license; that as a result of such unauthorized use defendant has caused the sewer to become clogged; that plaintiff has been put to expense in keeping her sewer in repair; and, finally, that although she has notified defendant to discontinue the unlawful and unauthorized use, defendant refuses to do so. Defendant's answer denies the significant allegations of the complaint and sets up the

defenses of laches and a right of easement to use the sewer. Defendant also counterclaimed, alleging that the parties and their predecessors in title shared the use of the sewer; that when the parties took title to their respective premises they were aware of the sewer situation and continued the existing arrangement; that defendant therefore had an easement right in the sewer and plaintiff should be restrained from severing the connection between her sewer and defendant's.

After a full hearing the Chancery Division judge found as a fact that there was a common sewer running from defendant's premises onto and through plaintiff's land, leading out to the street; that the sewer trouble which developed on plaintiff's property in December 1958 and brought on the present action was due to a break in the pipe underneath her premises, but not to any cause with relation to the operation of the sewer on defendant's property; that there was no evidence to show that either of the parties knew there was a common sewer until December 1958; that defendant had no right of easement by express grant or reservation to the use of plaintiff's sewer, nor was there an easement by prescription; but plaintiff's property is and has been burdened with an implied sewer easement in favor of defendant's property. The trial judge further held that if plaintiff took title free of notice of the easement, she would be entitled to have the encumbrance removed. The burden of proof was hers: it was not enough for her to show that she alone was without notice or knowledge of the existence of the easement; she also had to establish that her husband, now deceased, was without such notice or knowledge at the time they took title by the entirety. This, he said, she had failed to do. Independently of the foregoing, he held that to deprive defendant of the use of the sewer after so long a period of time, and to subject her to the expense of installing a sewer line of her own, would be inequitable.

Accordingly, the trial court entered judgment in defendant's favor, but ordered that she share with plaintiff past

and future expenses for the repair and maintenance of the sewer used by them in common. Plaintiff appeals.

Plaintiff is the owner of 33 Erie Street, Jersey City. She and her husband acquired title to this property as tenants by the entirety in December 1934. She became sole owner when he died in June 1952. Defendant is the owner of the adjoining property at 31 Erie Street, separated from plaintiff's by a common party wall. She and her husband acquired title as tenants by the entirety in 1947. Her husband died in January 1959. There is no reference to a sewer easement in either plaintiff's or defendant's deed, or in the deeds of their predecessors in title.

We agree with the Chancery Division judge that there is no evidence showing that either plaintiff or defendant knew of the existence of the common sewer until December 1958, when the sewer under plaintiff's house became stopped up and overflowed and a plumber was engaged to relieve the condition. It was then discovered that defendant's sewer connected with and ran into plaintiff's. The sewer pipe runs from defendant's premises underneath plaintiff's land and then follows a course along the party wall two or three feet inside plaintiff's property line, continuing out to the common sewer in the street. The pipe lies 4 1/2'-5' below ground level in the rear of plaintiff's house and pitches downward toward the street, being 6'-6 1/2' underground in front of the house.

The houses in question are old, semi-detached buildings, only 20 feet wide. The evidence is that the premises were held in common ownership until 1870, when defendant's parcel was conveyed out. Title to plaintiff's parcel came out of the common ownership by sheriff's deed in 1877. There was no proof as to just when these houses were built or the common sewer system installed. A title expert was of the opinion that the houses date back to 1870, and this on the basis of his examination of the mortgage records of the county. The sewer pipes themselves are of earthenware construction, indicating that they pre-date 1912, since which

time the local sanitary code prohibits their use. One thing is certain from the evidence: the location and the manner of installation of the earthenware sewer pipes clearly show they were installed before the houses were built over them.

There is no express grant or reservation of easement here, and this because of the total absence of any reference to a sewer easement in the two chains of title. Nor is the easement one by prescription. See Plaza v. Flak , 7 N.J. 215, 219-220 (1951). Rather, the sewer easement, if any did exist, was one that arose by implication of law -- in this case, an easement by implied grant, A.J. & J.O. Pilar, Inc. v. Lister Corp. , 38 N.J. Super. 488, 496-498 (App. Div. 1956), affirmed 22 N.J. 75 (1956), and not one by implied reservation, cf. Adams v. Cale , 48 N.J. Super. 119, 128 (App. Div. 1957). Since ...


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