Van Sandt v. Royster

Supreme Court of Kansas
83 P.2d 698 (1938)

ELI5:

Rule of Law:

An easement may be implied by reservation when a common owner severs property, so long as a prior use was apparent, continuous, and reasonably necessary for the enjoyment of the retained land. An underground drain is considered 'apparent' if a purchaser, through a reasonable inspection of the premises, could discover its existence, thus charging the purchaser with notice.

Facts:

Laura A. J. Bailey owned a single tract of land that included the parcels later designated as lots 4, 19, and 20, with her residence located on lot 4.
In late 1903 or early 1904, Bailey had a private underground sewer drain constructed, running from her house on lot 4 across lots 20 and 19 to connect to a public sewer.
On January 15, 1904, Bailey sold lot 19 to John J. Jones via a general warranty deed that made no mention of the sewer easement. Jones knew about the sewer and had paid Bailey for one-third of its installation cost.
In April 1904, Bailey sold lot 20 to one Murphy, who built a house and connected to the private sewer.
The properties were subsequently conveyed multiple times. Van Sandt purchased lot 19 in 1924, while Royster acquired lot 20 and Gray acquired lot 4.
The underground sewer was not visible from the surface, and no document creating or mentioning the easement was ever filed in the public property records.
In March 1936, Van Sandt's basement flooded with sewage, leading him to discover the existence of the shared underground drain for the first time.

Procedural Posture:

Van Sandt (plaintiff) filed an action in the trial court to enjoin Royster and Gray (defendants) from using the sewer drain running across his property.
The trial court entered judgment in favor of the defendants.
Van Sandt (plaintiff-appellant) appealed the trial court's judgment.

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Issue:

Does a landowner who purchases property without actual or recorded notice of an underground sewer drain take the land subject to an implied easement for that drain, when the drain was established by a common grantor, was known to the original grantee, and is reasonably necessary for the enjoyment of the neighboring properties?

Opinions:

Majority - Allen, J.

Yes, a landowner takes the property subject to an implied easement under these circumstances. An easement created by implication arises as an inference of the intentions of the parties to a conveyance, drawn from the circumstances rather than the language of the deed. The court rejects a strict necessity test for implied reservations and instead adopts a multi-factor approach from the Restatement of Property, considering factors like prior use, necessity, and what the parties knew or could have known. At the time of the original severance, the sewer existed and was known to the original grantee (Jones), and it was necessary for the comfortable enjoyment of the grantor's (Bailey's) retained property. Therefore, an easement by implied reservation was created. A subsequent purchaser, Van Sandt, is bound by this easement because it was 'apparent.' 'Apparent' does not mean visible; rather, an easement is apparent if its existence is discoverable through a reasonable inspection. Since Van Sandt knew his house had modern plumbing that must connect to a sewer, he was charged with notice of any reasonably discoverable drainage system, including the shared lateral drain.

Analysis:

This decision is significant for establishing a modern, flexible standard for creating easements by implied reservation in Kansas, moving away from the rigid English common law rule of strict necessity. By adopting the Restatement's multi-factor test, the court prioritizes inferring the parties' intent from the circumstances of the conveyance. Furthermore, the case broadens the definition of an 'apparent' use to include non-visible conditions discoverable upon reasonable investigation, thereby increasing the due diligence burden on real estate purchasers to inspect for unrecorded servitudes like underground pipes.

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