Alcorn v. Reading

• Decision Date: 08 February 1926
• Docket Number: 4226
• Citation: 243 P. 922,66 Utah 509
• Court: Utah Supreme Court
• Parties: ALCORN v. READING

243 P. 922

66 Utah 509

ALCORN v. READING

No. 4226

Supreme Court of Utah

February 8, 1926

Appeal from District Court, Third District, Salt Lake County; G. A Iverson, Judge.

Action by James A. Alcorn against Charles Reading. Judgment for defendant, and plaintiff appeals.

REVERSED and remanded, with directions.

William Waters, of Midvale, and D. H. Wenger, of Salt Lake City, for appellant.

D. W Moffat, of Murray, for respondent.

THURMAN J. GIDEON, C. J., and FRICK, CHERRY, and STRAUP, JJ., concur.

OPINION

THURMAN, J.

In a former opinion filed in this case, which has not been officially published, the cause was remanded to the court below with certain suggestions as to further proceedings. A rehearing was granted on the application of respondent, upon the assumption that the court had misconceived respondent's theory of the case. As the arguments on rehearing have tended somewhat to clarify questions as to which the court entertained serious doubt, the former opinion will not be officially published or further considered, except as it may be convenient in the course of this opinion.

This controversy arose over an alleged right of way for an irrigating ditch. Plaintiff is the owner of lot 1, block 1, Eastvale addition, in the town of Midvale, in Salt Lake county. Defendant is the owner of lots 8, 9, 10, 23, 24, and 25, block 3, in the same addition. Plaintiff's lot is situated in the southeast corner of the addition as platted, while defendant's lots are situated near the northwest corner. The plat abuts upon a street on the south known as Center street, running east and west. On the north side of the street, and running parallel therewith, is an irrigation ditch operated by the Union and East Jordan Irrigation Company. This ditch for many years prior to the commencement of this action was used in part for conveying water to irrigate the land afterward platted as the Eastvale addition. The water for irrigating said land was diverted from the ditch above referred to at a point where the southeast corner of plaintiff's lot is now situated, and conveyed water by means of a lateral running along and upon the east side of the lot afterwards conveyed to the plaintiff. Prior to 1917, the land now constituting the Eastvale addition was used as a farm, and the water was used thereon for farming purposes. In 1917 the Russon Investment Company, a real estate concern, purchased the land in question, and caused the same to be platted into lots, blocks, and streets under the name of the Eastvale addition and offered the lots for sale.

The trial court found that one O'Brien, plaintiff's grantor, purchased lot 1 in February, 1918, and that defendant purchased his lots in the month of May of the same year. Plaintiff purchased lot 1 from O'Brien in 1924, at which time he constructed a residence thereon. The east wall of his residence is about 3 feet from the east line of his lot. In the spring of 1924, and after the construction of plaintiff's residence, the defendant, Reading, without the consent of plaintiff, entered upon plaintiff's lot east of his residence where the lateral was situated, ostensibly for the purpose of opening it up or cleaning it out preparatory to irrigating his lots. In this connection it may be stated that defendant purchased a water right for his lots by a separate instrument at the time he purchased the lots. His right to water was represented by stock in the Union & East Jordan Irrigation Company, operating the water ditch along and upon Center street heretofore referred to.

The entry of defendant upon plaintiff's lot and defendant's attempt to open up and use the lateral referred to, together with defendant's claim of right thereto, constitute the basis of the present controversy between the parties.

Plaintiff alleges in his complaint that defendant has constructed the ditch against the foundation of plaintiff's house, and is threatening to run water through it to lands occupied by defendant, that the same will undermine the foundation of plaintiff's house, and that the injury thereto will be irreparable.

Defendant, as the basis of his claim, relies on the fact that the lateral in question was an old irrigation ditch, open, plain, and visible, and that defendant and his predecessors in interest had used the same for conveying water for irrigation for a period of more than 50 years, and that defendant had used it for the same purpose to water his lots ever since he purchased the same in 1918. Defendant also alleges he has no other means of conveying water to his lots than through the lateral in question. It is further alleged by defendant that from plaintiff's land the water is conveyed by means of a ditch running westerly across other lands to defendant's lots, where the water is used for gardening purposes.

The case was tried to the court, which found in favor of defendant. From the judgment entered thereon, plaintiff appeals.

In view of the theory upon which the case was tried, there is little or no dispute concerning the facts. The Russon Investment Company purchased the property included in the Eastvale plat from one Olsen, who used it for farming purposes. The lateral in controversy was an old water ditch used to carry water from the Union & East Jordan ditch to the lands north and west of appellant's lot now covered by the Eastvale plat. The evidence conclusively shows that the lateral on appellant's lot was open, visible, and plainly observable to any one going upon the land at the time appellant purchased from his grantor O'Brien. It was equally plain, open, and visible when O'Brien purchased from the Russon Investment Company, and likewise when respondent made his purchase. It is upon this theory that respondent bases his claim to a right of way for the lateral across appellant's land.

From a mere reading of the pleadings, we had some doubt as to the theory upon which the parties based their respective claims, but matters which occurred during the progress of the trial, together with the argument of counsel submitted in their briefs, make it quite clear what the theories of the respective parties are. Appellant claims by virtue of his deed from O'Brien in 1924 and O'Brien's deed from the Russon Investment Company in February 1918, at a time when said company owned all of the land in the plat, together with the water ditches situated thereon. The theory of respondent's claim can best be stated in the language of his attorney during the progress of the trial, when a question arose as to the admissibility of certain evidence. Mr. Wenger, the attorney for appellant, said: "I would like to know what your theory is then, on what theory is it offered?" Mr. Moffat, for respondent, replied: "Under the theory that it is simply an irrigating ditch; that it has been used, that everybody could see it. We know it has been used, and for that reason it can't be closed."

Respondent relies on Devlin on Deeds, vol 2 (3d Ed.) § 841, and quotes therefrom as follows:

"When an owner of land has created an advantage for one part of the land to the detriment of the other, the holders of the two parts upon a severance of ownership take them as they openly and visibly appeared at the time of the deed."

The language quoted appears to make in favor of respondent's contention. The author cites, in support of the text, Lampman v. Milks, 21 N.Y. 505 and 507. At page 507 of the report, the court states the question to be decided as follows:

"The precise question in this case is whether an owner, who, by such an artificial arrangement of the material properties of his estate, has added to the advantages and enhanced the value of one portion, can, after selling that portion, with those advantages openly and visibly attached, voluntarily break up the arrangement, and thus destroy or materially diminish the value of the portion sold."

Many cases are reviewed in the opinion and practically all of them appear to be cases of the same nature as that described in the above excerpt.

If the order of making the conveyance by the Russon Investment Company to O'Brien and the respondent here were reversed so as to give the respondent priority in point of time, the case of Lampman v. Milks, supra, would be strongly in point. But in the instant case we have this situation: The Russon Investment Company, at the time it sold lot 1 to plaintiff's grantor, was the owner in fee of every foot of land in the entire plat, together with all of the water ditches thereon, including the lateral on plaintiff's lot, and everything for which such ditches had theretofore been used. There was nothing whatever, as we understand it, pertaining to the land included in the plat that was not at that time owned by the Russon Investment Company in fee as far as the rights of private individuals were concerned. What rights, if any, the city of Midvale, or the public, may have acquired in respect to streets, etc., are not in question here. In that situation the Russon Investment Company, in February, 1918, sold lot 1 to O'Brien, and gave him a warranty deed therefor without reservation of the easement which respondent now seeks to enforce. O'Brien, without conferring any right whatever upon respondent, either by way of conveyance or othervise, as the evidence expressly shows, afterwards conveyed the lot, by warranty deed, to appellant, and that likewise without reservation as far as the ditch in question is concerned. Respondent purchased his lots from the Russon Investment Company in May, 1918, some three months after appellant's grantor purchased lot 1 from the same company. The question therefore to be determined is, When the Russon Investment Company, the common grantor of both parties here, conveyed lot 1 to O'Brien, appellant's...