Big Cottonwood Tanner Ditch Co. v. Moyle
|15 June 1945
|159 P.2d 596,109 Utah 197
|Utah Supreme Court
|BIG 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.
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.
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:
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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