RAPALLO, J.

We have come to the conclusion, that the drain in controversy, did not constitute an apparent servitude or easement, and that consequently the case does not present the question so fully argued before us, whether when a dominant and servient tenement are owned by the same person, and he makes a conveyance of the servient tenement first, with covenants of warranty, and against encumbrances, and without the express reservation of any easement, such conveyance will preclude him or his assigns, from afterward asserting in favor of the dominant tenement, which he retains, the benefit of the easement in the premises so conveyed. We therefore refrain from expressing an opinion upon that point.

All the authorities cited on the argument, by the learned counsel for the respective parties, concur in holding, that the rule of law which creates an easement on the severance of two tenements or heritages, by the sale of one of them, is confined to cases, where an apparent sign of servitude exists on the part of one of them in favor of the other; or as expressed in some of the authorities, where the marks of the burden are open and visible.

Unless therefore, the servitude be open and visible, or at least, unless there be some apparent mark or sign, which would indicate its existence to one reasonably familiar with the subject, on an inspection of the premises, the rule has no application.

There was nothing in the situation or appearance of the premises, to indicate that there was any drain from the privies in question. Drains are not a necessary accompaniment of privies constructed as these were. In cities, municipal regulations provide for their being cleansed by licensed public scavengers, and this practice is frequently brought to the notice of the inhabitants in a very obvious manner. No evidence was introduced to show that drains from them were usual in the locality in question. But had such evidence been given, it does not appear, that there was anything to indicate, that the privy of the neighboring house was drained through the lot sold to the defendant.

In the case of Pyer v. Carter (1 Hurl. Nor., 916), which was much relied upon on the argument, and in the opinion of the learned court below, the dominant and servient tenement had originally been one house. This house had been divided into two parts. The drainage was of the water which fell upon the roof, and it may well be, that the situation and arrangement of the building were such as to indicate, that some drain necessarily existed as an appurtenant to the house, and that upon the division of the house into two parts, that drain became common, and afforded drainage for both of the parts through one of them.

Such seems to have been the fact; for the court says, in rendering judgment, that "the defendant must have known, or ought to have known, that some drainage existed, and if he had inquired, would have known of this drain."

That decision recognizes the necessity of establishing, that the servitude is apparent, or that there is an apparent mark or sign of it, and seems to be based on the fact, that the situation and construction of the premises afforded such a sign.

In Washburn on Easements (2d ed., p. 68), the learned author, after reviewing the cases on this subject, states that he considers the doctrine of Pyer v. Carter confined to cases, where a drain is necessary to both houses, and the owner makes a common drain for both; and this arrangement is apparent and obvious to an observer.

If Pyer v. Carter goes further than that, or, at all events, if it applies to cases where there is no apparent mark or sign of the drain, it is not in accordance with the current of the authorities.

The bearing of that case upon the question, whether the alleged easement was one of necessity, upon the point as to the order in which the tenements were sold, and upon the other questions, which were argued before us with so much learning and ability, need not be now considered, as we do not propose at this time to decide those questions; and for the same reason, we forbear reviewing the numerous other authorities to which we have been referred, basing our decision upon the single ground, that the servitude claimed was not apparent.

The judgment should be reversed and a new trial granted, with costs to abide the event.

All concur.

Judgment accordingly.