Beisell et Ux. v. Wood et Ux.

• Decision Date: 24 October 1947
• Citation: 185 P.2d 570,182 Or. 66
• Parties: BEISELL ET UX. <I>v.</I> WOOD ET UX.
• Court: Oregon Supreme Court

182 Or. 66

185 P.2d 570

BEISELL ET UX.v.

WOOD ET UX.

Supreme Court of Oregon.

Argued September 18, 1947.

Reversed October 24, 1947.

Waters and water courses — Spring

1. A "spring" is a place where water issues naturally from the surface of the earth.

See Words and Phrases, Permanent Edition, for all other definitions of "Springs".

Waters and water courses — Private water

2. A spring which issued from tract of land and flowed directly into a small marsh on the same tract, without any perceptible outlet, was not subject to appropriation by any person other than the owner of the land, and was private water, a part of the land on which it arose, and belonged to the owner of the land.

Judgment — Burden of proof

3. In suit to enjoin interference by defendants with plaintiffs' water rights in spring located on defendants' land, defendants had burden of establishing by proof their allegation which was denied by plaintiffs, that plaintiffs' predecessor in interest was a party to a proceeding for adjudication of water rights.

Judgment — Adjudication

4. In suit to enjoin interference by defendants with plaintiffs' water rights in spring located on defendants' land, plaintiffs were not bound by adjudication in proceeding determining water rights, on ground that plaintiffs' predecessor in interest was a party to the proceedings, where plaintiffs denied that their predecessor in interest was a party, and defendants failed to establish that he was a party.

Waters and water courses — Use — Conveyed

5. The water of a spring located entirely on one of the tracts of land could be severed from the land, and the right to use the water could be conveyed away by deed.

Waters and water courses — Necessary — Enjoyment — Appurtenant

6. Where owner of realty, when he conveyed part of his land, granted use of water from spring located on the remaining portion of the land, and the use of the water was an incident necessary to enjoyment of the land conveyed, it became appurtenant thereto.

Waters and water courses — Easement

7. The right to take or divert water from the land of another for the benefit of the land of the grantee is an easement appurtenant to the grantee's land.

Waters and water courses — Express grant — Misdescription

8. Where conveyance included an express grant of the appurtenances, fact that there was a misdescription of the water right given to the grantees to take water from the grantor's land, which right was actually appurtenant to and necessary to the beneficial use of land conveyed was not fatal to grantees' rights to the water.

Injunction — Equitable rights — Invasion — Damage

9. To invoke equitable protection by way of injunctive relief, plaintiff must establish that rights in respect of which such relief is sought are of character which equity will protect, and that threatened or actual invasion thereof of which he complains is or will be an injurious invasion of such rights which will result in actual and substantial damage.

Waters and water courses — Irreparable injury

10. Where wrongful acts of defendants in shutting off plaintiffs' supply of water from spring on defendants' land made it necessary for plaintiffs to procure water for domestic purposes from a neighbor a quarter of a mile away, plaintiffs were entitled to an injunction, on ground of irreparable injury.

Waters and water courses — Nominal damages

11. Where plaintiffs showed that because deprived of water from spring by defendants it was necessary for plaintiffs to haul water a distance of about a quarter of a mile and to travel to such place for bathing and washing of linens, but there was no showing as to value of time consumed and expenses involved, plaintiffs were entitled to only nominal damages.

Damages — Loss — Pecuniary value

12. Generally, compensation in money must be fixed according to some standard which will admeasure the loss in terms of pecuniary value, if that can be done, and the measure applied must be a real and tangible one.

Damages — Speculation

13. A court cannot base an award of damages upon mere speculation, conjecture, or surmise.

Waters and water courses — Expenses incurred.

14. In suit to enjoin interference with water rights and for damages, plaintiffs were entitled to recover for expenses incurred in repairing broken water pipe-line that was broken by tractor on defendant's premises.

Waters and water courses — Grantee — Grantor

15. Where owner of realty, when he conveyed part of his land, granted use of water from spring located on remaining portion of

the land, rights of grantee and his successors were superior to those of the grantor and his successors in the water.

                  See 106 A.L.R. 687
                  56 Am.Jur. 723
                  67 C.J., Waters, § 557
                

Appeal from Circuit Court, Marion County.

GEORGE R. DUNCAN, Judge.

Ralph M. Holman, of Oregon City (with Butler & Jack, of Oregon City, on brief), for appellants.

John H. Carson, of Salem, for respondents.

Before LUSK, Acting Chief Justice, and KELLY, BAILEY, HAY and WINSLOW, Justices.

Suit by George Beisell and Lorraine Beisell against Delmar E. Wood and Martha E. Wood to enjoin interference with water rights and to recover general and special damages. From a decree dismissing the suit, the plaintiffs appeal.

REVERSED.

HAY, J.

This is a suit in equity for an injunction against interference with water rights. Plaintiffs are the owners and in possession of a tract of about one acre of land near the town of Detroit, in Marion county. Defendants own and are in possession of a tract of about 8.38 acres adjoining plaintiff's tract. The parties derived title to their respective tracts through mesne conveyances from a common grantor, one F.W. Stahlman. A spring of water arises on the tract owned by defendants. On August 27, 1929, Stahlman, who at that time owned the land comprising both tracts, conveyed the tract now owned by plaintiffs to J.F. and Ethel A. Bewley. The instrument of conveyance included a grant of the use of water from said spring, in the following language:

"Together with all water rights and free use of water from the springs for domestic and irrigation use from the springs on the adjoining property of Fred Stahlman, from which water is now piped to the property described above now being conveyed to and sold to Ethel A. Bewley and J.F. Bewley."

On April 21, 1931, Stahlman conveyed to Roy Robnett the tract now owned by defendants, subject to the following specific exception:

"In a deed granting and selling real property the said Fred Stahlman did sell and convey to Ethel A. Bewley and Frank Bewley free use of water for domestic and irrigation use from the springs on the land now being sold and conveyed to Roy Robnett and from said springs the water was then and is now piped to the property deeded to Ethel A. Bewley and Frank Bewley."

The complaint, after setting forth the ownership of the respective tracts, alleges that, from the date of the conveyance by Stahlman to the Bewleys and until on or about July 27, 1946, water from the spring on defendants' tract was piped to the tract owned by plaintiffs and was used by the owners thereof; that, on or about July 27, 1946, the defendants destroyed the pipe-line and cut off the flow of water; that, thereafter, plaintiffs entered upon defendants' land and repaired the pipe-line, but that defendants again destroyed it, and forbade plaintiffs from entering their premises to make further repairs; and that, by such actions of defendants, plaintiffs have been deprived of the use of the water for domestic and irrigation purposes. The prayer is for an injunction restraining defendants from interfering with the flow of water from the spring to plaintiffs' land, and requiring defendants to permit plaintiffs to enter upon defendants' land for the purpose of repairing the pipe-line. General damages in the sum of $2,500 and special damages in the sum of $250 are demanded.

The defendants' amended answer admits ownership of the respective tracts as alleged, but denies all other allegations of the complaint. As an affirmative defense, it alleges that, on February 1, 1945, in a proceeding in the Circuit Court of the State of Oregon for the County of Marion, entitled: "In the Matter of the Determination of the Relative Rights to the use of the Water of North Santiam River and its Tributaries, a tributary of Santiam River", initiated under the provisions of chapter 8, title 116, O.C.L.A., to which proceeding plaintiffs' predecessor was a party, a decree was duly entered by which there was awarded and confirmed unto one Lulu White, at that time the owner of the tract now owned by defendants, the right to the use of the waters of the spring involved herein, with priority as of the year 1908, for the irrigation of three acres of land and for domestic and stock purposes, and that the entire flow of the spring is required to satisfy the water right so awarded. These allegations are denied by the reply.

A hearing was held, and thereafter the trial court found that the plaintiffs were not entitled to the relief prayed for and entered a decree dismissing the suit. Plaintiffs appeal.

The Stahlman conveyance, which is in evidence, shows that, at the time when it was executed, the pipe-line had been installed and water was being piped from the spring to the tract now owned by plaintiffs.

1, 2. A spring, for the purposes of this discussion, may be defined as a place where water issues naturally from the surface of the earth. 1 Kinney, Irrigation and Water Rights, 2 ed., section 313; 58 C.J., Spring, section 1. The water of the spring involved in the present case does not pass from the tract of land upon which it arises, or becomes the source of any watercourse. It merely seeps or flows directly into a small marsh upon the same tract, having no perceptible outlet. Such a spring is not subject to appropriation by any person other than the owner of such land. It is private water, a part of the land upon which it...