Big Cottonwood Tanner Ditch Co. v. Moyle
Decision Date | 07 November 1946 |
Docket Number | 6721 |
Citation | 174 P.2d 148,109 Utah 213 |
Court | Utah Supreme Court |
Parties | BIG COTTONWOOD TANNER DITCH CO. v. MOYLE et al |
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.
Pratt, Justice. Wade, 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:
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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So. Utah Wilderness v. Bureau of Land Management, No. 04-4071.
...estates `must exercise [their] rights so as not unreasonably to interfere with the other.'" Id. (quoting Big Cottonwood Tanner Ditch Co. v. Moyle, 109 Utah 213, 174 P.2d 148, 158 (1946)). This requires a system of coordination between the holder of the easement and the owner of the land thr......
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Southern Utah Wilderness Alliance v. Bureau of Land Management, No. 04-4071 (Fed. 10th Cir. 1/6/2006)
...estates `must exercise [their] rights so as not unreasonably to interfere with the other.'" Id. (quoting Big Cottonwood Tanner Ditch Co. v. Moyle, 174 P.2d 148, 158 (Utah 1946)). This requires a system of coordination between the holder of the easement and the owner of the land through whic......
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Judd v. Bowen
...grant in favor of that user. See Richins v. Struhs , 17 Utah 2d 356, 412 P.2d 314, 315–316 (1966) ; Big Cottonwood Tanner Ditch Co. v. Moyle , 109 Utah 213, 174 P.2d 148, 151 (1946). Legal recognition of a prescriptive right was said to restore and maintain that lost grant, and the extent o......
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U.S. v. Garfield County
...to the use encompassed the right to improve the right of way for its use as such.'" (Id. at 15 (quoting Big Cottonwood Tanner Ditch Co. v. Moyle, 109 Utah 213, 174 P.2d 148, 156 (1946)).) Garfield County concludes that its R.S. § 2477 right-of-way is all the "agreement" or "approval" the Co......