Opinion
March 7, 1951.
Appeal from Supreme Court, Columbia County.
Present — Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ.
Plaintiffs and defendant are owners of adjoining parcels of land. Both parcels were once owned by a common owner who placed drain pipes from the house now owned by plaintiffs so that they drained upon the parcel now owned by defendant. The parcels became separated by the foreclosure of separate mortgages, one on each parcel, and public sales by a referee. Defendant purchased her parcel from the referee. Defendant and two other parties purchased from the referee the parcel now owned by plaintiffs. They conveyed this parcel to another individual who in turn conveyed to plaintiffs. Plaintiffs claim an easement by implication to continue to drain from their property upon the lands of defendant. The trial court has found that the plaintiffs have failed to establish an easement by implication. The evidence sustains such a finding. The evidence also discloses that the underlying equitable reasons upon which an easement by implication is ordinarily based are not present. After acquiring title to their lands plaintiffs, without the knowledge of defendant, placed drainage pipe and a large septic tank upon defendant's land. Concededly no such tank had ever been there before. Even if the previously existing arrangement could be construed as an easement by implication, placing this tank upon defendant's land increased the burden of the easement to an extent which justified a judgment directing its removal. Judgment unanimously affirmed, with costs.