Big Cottonwood Tanner Ditch Co. v. Moyle

Decision Date07 November 1946
Docket Number6721
Citation174 P.2d 148,109 Utah 213
CourtUtah Supreme Court

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

For former opinion, see 109 Utah 197, 159 P. 2d 596.

Judgment and decree of trial court modified and as modified affirmed.

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.

J. A. Howell, of Ogden, A. V. Watkins, of Provo, Elias Hansen and Fisher Harris, both of Salt Lake City, A. H. Christenson, of Provo, Wendell Day, of Murray, Dean F. Brayton, of Salt Lake City, David K. Holther, of Ogden, Homer Holmgren, D. Howe Moffat and A. C. Melville, all of Salt Lake City, Young & Bullen, of Logan, E. R. Christensen, and Harold E. Wallace, both of Salt Lake City, amici curiae on rehearing.

Wolfe, Justice. McDonough, J., concurs. Larson, Chief Justice (concurring). Pratt, Justice. Wade, Justice.


Wolfe, Justice.

A petition for hearing has been filed in behalf of plaintiff below. Our original opinion in this case, 109 Utah 197, 159 P. 2d 596, reversed the judgment of the lower court and remanded the case with instructions to dissolve the injunction.

Mr. Justice Wade in the court's original opinion of the case clearly stated the facts as follows:

"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 purposes 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 stockholders 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 * * * 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 [it was claimed] 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 [and evaporation].

"The case was tried to the court without a jury and it found that plaintiff's easement entitled it to enter upon defendant's 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."

No rights to water are involved in this case as defendants concede that they have no rights to the use of the seepage water and that plaintiff may abandon the ditch in question and conduct its water to the place of use over a different route without responding in damages to defendants for losses resulting from thus cutting off the water supply of the foliage which had grown up along the banks of the ditches. The word "ditches" as used in the opinion refers to all irrigation facilities involved in the case -- ditches, canals, weirs, laterals, etc.

Counsel for plaintiff argued vigorously that the easement involved was acquired by express grant from the United States by virtue of a July 26, 1866, act of Congress. Defendants contend plaintiff acquired its easement by prescription. Under both plaintiff's and defendants' theory, the plaintiff has only an easement. How that easement was acquired is immaterial to the result of this case. We will assume the plaintiff has merely a prescriptive easement as defendants contend.

In the lower court in opposition to plaintiff's requested relief, defendants made the following three contentions:

1. The prescriptive easement plaintiff has to course irrigation water across defendants' land is mutual and coexistent with defendants' right to the benefit of having seepage water nurture the flora along the banks of said ditches. To waterproof the ditches will cut off the seepage water and plaintiff may not continue to use its easement unless it continues to allow defendants the benefits from said use.

2. The method plaintiff proposes to use to improve its ditches will add additional burdens to the servient estates by making the ditches materially more dangerous to children thus substantially depreciating the value of the servient estates for residential purposes -- for which purposes they are chiefly used and suitable.

3. One of the defendants -- Mr. Moyle -- is a tenant-in-common with the plaintiff irrigation company in the ditches and a tenant-in-common may not materially change the property enjoyed in common without consent of the other common tenants if the change will make the estates less convenient or useful to the tenant-in-common who opposes the change.

We will discuss the contentions in that order.

There existed under the English common law the conception that an easement may not only be a restriction of the property rights of the servient tenant, but where the facts of the grant or user warrant, it may include a right to a benefit by the servient estate. Carlisle v. Cooper, 21 N. J. Eq. 576, at page 597; Wutchumna Water Co. v. Ragle, et al., 148 Cal. 759, 84 P. 162.

Defendants relying on this common law concept contend that in this case the plaintiff's right to have its ditch cross defendants' land is mutual and co-existent with defendants' right to have seepage water from said ditch nurture the flora along the banks of the ditch. The contention is that plaintiff may not retain its prescriptive easement if it cuts off the benefits which accrued therefrom to the defendants.

Under the common law in England the doctrine of acquiring a right by prescription presumed a grant, the title papers of which had been lost. To ascertain the terms of the grant, the law looked to the nature of the use during the prescriptive period. If incidental benefits accrued to the owner of the servient estate, it was presumed that in the absence of said benefits the owner of such estate could and would have stopped the use before the prescriptive period had run. Thus, if after the prescriptive period had run, the benefits were cut off, the servient estate owner was permitted to restrain the use.

While the principle is somewhat the same, this taking away of the benefits should be distinguished from those cases in which the owner of the easement attempts to make changes thereon which will increase the burden on the land. The former takes away a benefit which accrues as an incident to the use of the easement; the latter imposes additional burdens.

Plaintiff's first contention deals with a benefit which accrued as an incident to the use of the easement. Before the ditch involved was made across defendants' land no flora could have grown from seepage water from the ditch. The making and use of the ditch incidentally added a benefit to the land on which it was made because the seepage water therefrom supplied water for trees and plants to grow along its banks. Cutting off the seepage water is not then adding an additional burden to the servient estate but is merely taking away an incidentally accrued benefit.

Cases involving the taking away of benefits which the use of an easement confers on the servient estate apparently do not often arise, but if the common law doctrine of prescriptive rights is followed, it would logically appear that the dominant estate owner could not continue to use the easement after he prevented the accrual of benefits to the servient estate. If we are to presume a lost grant and determine the scope of the grant strictly by the use, the common law will read into the prescriptive right a limitation requiring the owner of the right to continue to use it substantially as it was used during the running of the prescriptive period. If a benefit accrues to the servient estate from the use of the easement, it would assume that absent the benefits the use would have been stopped.

Where the use is to convey irrigation water in earthen...

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