Big Cottonwood Tanner Ditch Co. v. Moyle

Decision Date15 June 1945
Docket Number6721
Citation159 P.2d 596,109 Utah 197
CourtUtah Supreme Court
PartiesBIG COTTONWOOD TANNER DITCH CO. v. MOYLE et al

Appeal from District Court, Third District, Salt Lake County; H M. Schiller, Judge.

Suit by the Big Cottonwood Tanner Ditch Company against Oscar W Moyle and others to enjoin defendants from preventing plaintiff from entering upon defendants' lands to cement and waterproof plaintiff's ditches. From an adverse judgment, defendants appeal and plaintiff cross-appeals.

For opinion on rehearing see 109 Utah 213, 174 P. 2d 148.

Reversed and remanded with instructions.

T D. Lewis, O. W. Moyle, Jr., Dan T. Moyle, and David T. Lewis, all of Salt Lake City, for appellants.

Shirley P. Jones, of Salt Lake City, for respondent.

Wade, Justice. Turner, J., concurs. Larson, Chief Justice. McDonough, Justice (concurring in part -- dissenting in part). Wolfe, Justice (dissenting).

OPINION

Wade, Justice.

Plaintiff, respondent herein, an irrigation company, as the owner of easements for its ditches and canals which extended across tracts of land owned by defendants, appellants herein, brought this suit to enjoin the defendants from preventing it from entering upon their lands for the purpose of cementing and waterproofing its ditches.

The defendants are the owners of considerable tracts of land valuable chiefly for residential purposes. They admitted that plaintiff was the owner of easements over their respective lands and that these easements consisted of ditches and canals through which coursed water belonging to plaintiff. Oscar W. Moyle, one of the defendants, claimed to be a tenant in common with plaintiff as to the canals and ditches crossing his land; all of the defendants were stock-holders in plaintiff company.

Plaintiff decided to waterproof its ditches to avert a loss of water. Defendants objected to this because there had grown up around the streams beautiful flora and trees which greatly enhanced the value of their properties for residences. The properties were not valuable for farming purposes and if the ditches were waterproofed many trees, such as tag alder and birch, would die for lack of sufficient water. This would decrease the beauty of the tracts to such an extent that their value for residential purposes would be lessened approximately 50%. They also objected that the manner in which plaintiff proposed to make these alterations in its ditches would make the streams more dangerous to children. Besides cementing the ditches, plaintiff proposed to make the channels narrow so that the water could course through in a swifter current, thus saving considerable loss of water from seepage.

The case was tried to the court without a jury and it found that plaintiff's easement entitled it to enter upon defendants' lands for the purpose of constructing, maintaining and repairing its distribution system consisting of ditches, canals, laterals, drains and weirs and also for the purpose of conserving and conveying its water through said distribution system, and therefore granted the injunction. However, the court also found that the manner in which the plaintiff proposed to make its alterations would be more dangerous to children and so it retained jurisdiction of the case to be able to pass upon any proposed alteration for the purpose of determining whether it would be done in such a manner as would not make it more dangerous to children and would not materially depreciate the value of the land for residential purposes.

Defendants appeal from the order and judgment enjoining them from interfering with the prosecution of the works by plaintiff and plaintiff cross-appeals from the court's finding and judgment that it retain jurisdiction of the case to see that the works are carried out under the conditions imposed in the decree.

At the outset it must be made clear that no water rights are involved in this case. The sole question to be determined by this court is: Will the proposed changes by the owner of the easement rights create a greater burden on the servient tenements?

The extent of an easement is determined by the grant, or if based on a prescriptive right, by its user, and once the character of the easement has been fixed no material change or enlargement of the right acquired can be made if thereby a greater burden is placed on the servient estate. Stephens Ranch & Live Stock Co. v. Union Pac. R. R. Co., 48 Utah 528, 161 P. 459; Nielson v. Sandberg, 105 Utah 93, 141 P. 2d 696; 28 C. J. S., Easements, § 95(b); Wiel, Water Rights in the Western States, 3rd Ed., Vol. 1, Sec. 502.

Appellants contend that respondent's proposal to cement the ditches would be a material change in its easement rights and that such changes would greatly increase the burden on their estates because the ditches as they are now constructed and have been since the inception of the easements allow enough water to seep through to enable tag alder, birch trees and other varieties of plant life to grow and luxuriate. Should the changes be allowed this seepage will not occur and the tag alder and birch trees will die and the other varieties of plant life will not be so abundant, with the result that it will occasion a substantial decrease in the value of the properties for residential purposes. They also contend that the proposed changes will increase the hazard to children and thereby also decrease the value of the properties for residential purposes.

We do not understand appellants to claim that the seepage waters belong to them, but that they object solely on the ground that the change from non-waterproofed ditches to waterproofed ditches would be such a substantial alteration of the easements acquired by respondent as to amount to a material increase on the burden of the servient estates and therefore should not be allowed. It is appellants contention that respondent acquired its easements by prescription; that a prescriptive right is presumed by law to have its inception in a grant founded upon an agreement between the parties and the grant having been lost, the nature, character and extent of the easement is determined by its actual continued user and that the rights of the dominant and servient estates are mutual and that each is entitled to demand that the prescriptive right be exercised in the same manner it was being exercised while the right was being acquired. They cite Wutchumna Water Co. v. Ragle et al., 148 Cal. 759, 84 P. 162, 165, in support of these contentions. In that case the defendants had acquired a prescriptiveright to divert a certain amount of water from the Wutchumna Water Company's ditch. In determining the rights of the parties to the suit in this water, the lower court attempted to attach a condition that notice be given to the water company before defendants diverted the water. No such notice had been given when the prescriptive right had been acquired. The Supreme Court held that court erred in attaching this condition because

"* * * the rights of a party who has acquired a prescriptive title, and the rights of one against whom said title is acquired, are mutual, and each is entitled to demand that the prescriptive right be exercised in the same manner that it was exercised while it was being acquired."

The theory that a prescriptive right may have attached to it a mutuality of duties found approval in an early New Jersey case, Carlisle v. Cooper, 21 N. J. Eq. 576 at page 597, wherein the following dictum appears:

"Prescriptions may be upon condition in restraint of the mode in which the prescriptive right is to be enjoyed, or may have annexed to them a duty to be performed for the benefit of the person against whom the prescription exists."

Among the cases cited in support of this dictum is Paddock v. Forrester, 3 Mann. & Gran. 903. The court in that case held that in an action for trespass upon the lands of plaintiff wherein the defendant pleaded a right by prescription to enter for the purpose of digging minerals subject to compensating the occupants of the servient estate upon demand for the damages suffered as a result of such entrance, that the prescriptive right of entry and the duty to pay the compensation were one prescriptive right. As authority for this conclusion, the court cites Gray's Case, 5 Coke 78(b),

"where the plaintiff entitled himself to have common of pasture in the place in which, & c.; and the jury found he ought to have the same common, but that every copyholder had used to pay time out of mind for the same common, a hen and five eggs every year. For although the court held in that case, that on this verdict the plaintiff should have judgment 'for the plaintiff need not show more than makes for him, and is of his part,' yet it is expressly said by the court, 'that if the jury had found that the plaintiff should have common, paying so many hens and eggs, the issue had been found against him, because it is parcel of the custom.'"

From this it would appear that in the old English law the conception was that an easement may not only be a restriction on the property rights of the servient tenement, but where the facts of either grant or user warrant, it may include a right to a benefit by the servient estate on the part of the dominant tenement.

In the instant case there was no evidence of an actual grant. The rights of plaintiff are based on prescription. From the inception, earthen ditches have been used. There was evidence that defendants' properties had never been valuable for farming but at least for the past fifty years have been valuable for residential purposes. It cannot be gainsaid that the beauty and safety of the premises are very material elements in their value. The court found that the growth of trees and shrubs did materially add...

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