Fayter v. North

• Decision Date: 04 January 1906
• Docket Number: 1640
• Citation: 30 Utah 156,83 P. 742
• Court: Utah Supreme Court
• Parties: FAYTER v. NORTH et al

83 P. 742

30 Utah 156

FAYTER v. NORTH et al

No. 1640

Supreme Court of Utah

January 4, 1906

APPEAL from District Court, Salt Lake County; W. C. Hall, Judge.

Suit by Louis Fayter against Marian K. North and others. From a decree in favor of plaintiff, defendants appeal.

AFFIRMED.

Sutherland Van Cott & Allison for appellants.

APPELLANT'S POINTS.

It is fundamental that in order for a thing to pass as an appurtenance it must belong and be appendant to the thing granted. (2 A. & E. Ency. Law (2 Ed.), 523-4.)

It is essential as a preliminary requisite that such an easement should have in fact been used by the owner during the unity of the tenements. (Kelly v. Dunning, 10 A. 279; Tool Co. v. Corliss etc. Co., 9 Rhode Island 564 Evans v. Dana, 7 Rhode Island 310; Kenyon v Nichols, 1 Rhode Island 417.

One cannot own an easement in his own land. North owning what is now claimed to be the servient estate and the dominant estate, his use of one for the benefit of the other was a mere exercise of a right of property in his own land, and in no sense an easement. (Goddard on Easements (Bennet's Ed.), 11; Langley v. Hammond, L. R. 3 Ex. Cas. 161, 168; Thompson v. Waterlow, L. R. 6 Eg. Cas. 36, 40; Plimpton v. Converse, 42 Vermont 712, 716; Barker v. Clark, 17 Am. Dec. 428; Macomber v. Godfrey, 108 Mass. 219, 223; Oliver v. Hook, 47 Md. 301.)

The rule is, however, well settled that in order for a right of this character to pass as quasi-appurtenant, it must be apparent, continuous, and of necessity. If it is not apparent, or is discontinuous in character, or its use has been as a matter of convenience and not of necessity, it will not pass. (Whiting v. Gaylord, 34 A. 85, 88.)

Parol evidence that North agreed that the water derived from the drainage of other lands should pass for the same consideration named in the deed is inadmissible, as varying the terms of the written conveyance, and such an agreement cannot, therefore, be held to have passed title. (Warner v. Cogswell, 10 Gray 76; Armstrong v. Granite Co., 49 Am. St. Rep. 683, 686; Canal Co. v. Ryerson, 27 N. J. Law 457, 466; Van Husan v. Ry. Co., 92 N.W. 47, 51; Uihlein v. Matthews, 64 N.E. 792, 794; Kansas City v. Banks, 61 P. 333; Proctor v. Gilson, 49 New Hamshire 62; Tool Co. v. Corliss, etc. Co., 9 Rhode Island 569; Cottam v. Hocker, 1 Rawle 108; Shaner v. Edgell, 37 S.E. 664, 666; Crislip v. Cain, 19 West Virginia 483; Koegel v. Nitchman, 40 S.W. 68.)

If one should dig a ditch on his own land which would interrupt percolating water and thereby dry his neghbor's spring, the latter would have no cause of action therefor. (Miller v. Spring Imp. Co., 86 A. S. R. 924.)

That such water cannot be acquired by adverse possession and that no action will lie against the owner of the land who constructs a ditch and diverts it away, no matter how long continued its use may have been, is settled by the decisions of our own court. (Crescent v. Silver King, 17 Utah 444, and authorities cited; Railway v. Dayfour, 95 Cal. 615; Gould on Waters, 279; White v. Chapin, 12 Allen 520; Arkwright v. Gell, 5 Meeson & Wellsby 203, 234; 52 Rev. Rep. 671, 693.)

James H. Moyle and Ray Van Cott for respondent.

RESPONDENT'S POINTS.

That while the owner of property cannot be the owner of an easement thereon, yet when he sells, he by implication grants all servitudes existing thereon, and which is obvious and permanent or apparent and continuous. (Toothe v. Bryse (N. J. 25), A. 182; Lampman v. Milks, 21 N.Y. 505, and Curtis v. Ayrult, 47 N.Y. 72; Evans v. Dana, 7 Rhode Island 310; Kenyon v. Nichols, 1 Rhode Island 114; Curtiss v. Ayrault, 47 N.Y. 73; Butterworth v. Crawford, 46 N.Y. 349; 7 Am. Rep. 352; Cave v. Crafts, 53 Cal. 135.)

"But it is claimed that only such easements as are termed 'continuous' will pass by implication in a grant, and that such as are termed 'discontinuous' will not. This is a distinction of the civil law, and has been incorporated in the law of some of the states, particularly Maine and Massachusetts. The former are such as operate without the intervention of man, such as drains and sewers; the latter require the intervention of man in their use, such as ways. The distinction is somewhat arbitrary, and is not uniformly adopted, as will appear from the cases cited. The better rule and the one now more generally adopted, is not to consider the particular kind of easement, but whether it is apparent, designed to be permanent, and is reasonably necessary to the use of the premises granted." (Baker v. Rice (Ohio), 47 N.E. 656; Curtis v. Ayrault, 47 N.Y. 73; Wood's Practice Evidence, 52; Lampman v. Milks, 21 N.Y. 505; Payne v. Chandler, 134 N.Y. 385, is a leading case; Eliason v. Grove (Md.), 36 A. 844; Goddard on Easements, p. 122; Farmer v. Ukiah Water Co., 56 Cal. 11; Cave v. Crafts, 53 Cal. 135, which follows the New York cases; Cihak v. Kleke (Ill.), 7 N.E. 111; Newal v. Sass (Ill.), 31 N.E. 178; Jackson v. Trullinger, 9 Ore. 395; Railroad v. Moffit, 94 Mo. 60; Dunklee v. Ry. Co., 24 N.H. 507; Coolidge v. Hayer, 43 Vt. 9.)

Parol evidence of the admissions of the vendor, as to the conditions existing and surrounding the transaction, and the purposes for which that which was granted was used, and could be used are admissible. (Bartells v. Brain, 13 Utah 162; Harrington v. Chambers, 3 Utah 94; Ganson v. Madigan, 15 Wis. 144; Hall v. Davis, 36 N.H. 569; Thorington v. Smith, 8 Wall. 1; Confederate Note cases, 19 Wall. 548; Reed v. M. M. Insurance Co., 95 U.S. 23; Brown v. Markland, 16 Utah 364; Buford v. Lonergan, 6 Utah 301.)

The rule that parol testimony may not be given to contradict a written contract applies only in suits between the parties to it, or their privies. In a contention between the party to an instrument and a stranger, either can give parol testimony differing from the contents of the instrument. (1 Greenl., Ev. sec. 279; McMaster v. Insurance Co., 234; Lowel Mfg. Co. v. Safeguard F. I. Co., 88 N.Y. 599; Lee v. Adsit, 37 N.Y. 94.)

We also insist that such water rights, though entirely arising from percolating water, may be appropriated and sold or title thereto acquired as in other cases. (Sullivan v. Northern Spy M. Co., 11 Utah 438; McPhee v. Kilsey (Ore.), 74 P. 401; Roberts v. Crafts (Cal.), 74 P. 281; East v. Houston, & T. R. Co., 77 S.W. 646.)

BARTCH, C. J., delivered the opinion of the court. McCARTY, J., concurs. STRAUP, J., dissenting.

OPINION

BARTCH, C. J.

STATEMENT OF FACTS.

This is a suit in equity to restrain the defendants from interfering with a certain ditch which the plaintiff claims to own and use for irrigation, domestic and culinary purposes, and to water live stock, to require the defendants Enos N. Jacklin Melinda H. Butterworth and Clarence North to show what right or title they have to the ditch or the waters thereof, to quiet title to the ditch, and the water flowing therein, in the plaintiff against the defendants, and to recover damages against the defendants Marian K. North, John R. North, and James North for obstructing the ditch. From the record and the evidence it appears that Levi North, for many years prior to 1891, was the owner of a tract of land in Salt Lake county, which tract included the land involved in this suit. The land was patented to his son A. C. North, who retained the legal title, while his father was the beneficial owner and had the possession and use of the property. In June, 1891, Levi North sold, by oral agreement, 2.29 acres thereof to the plaintiff for $ 250 per acre, and on June 13, 1893, a deed was executed therefor by the holder of the legal title and delivered to the purchaser. Just previous to the purchase by plaintiff the defendant Jacklin bought adjoining land of the same quality from Mr. North for $ 200 per acre. The land sold to the plaintiff was located in the southwest corner of the tract, and there is evidence showing that for many years previous to and at the time of the sale of this land there was a drain ditch on the tract, which is the ditch over which this controversy arose. It entered the land sold to plaintiff from the northeast, and carried percolating and spring waters, which, after leaving the plaintiff's land, flowed into a slough to the west. According to some of the witnesses, the ditch originally was but a plow furrow made for the purpose of carrying off the waste water, but others claim it was about a foot deep and a foot wide and drained the land lying north of that owned by plaintiff. That the ditch was larger than a plow furrow, at the time of plaintiff's purchase, is shown clearly by the evidence. In March, 1892, after the oral agreement of sale had been made, the ditch was made two and a half feet deep. As to this, the plaintiff in his testimony said he agreed with his vendor to "dig this ditch; he was to pay me one-half, which he did, for the time I put on it, and I was to put in my half of the labor for the increase in the flow of the stream. I deepened the ditch about eighteen inches, to a total depth of about two and one-half feet." There is no direct evidence that the water which flowed in this ditch was actually used to irrigate the land sold prior to the oral contract of sale but there is testimony to the effect that the vendor did, after the making of that agreement, in 1891, use this water upon the land to irrigate his crops, which he had reserved from sale, and that at the same time, the plaintiff having taken possession of the land, his workmen used water from this ditch during the erection of his house, and ever since, until this controversy arose, the water from the drain ditch was used to irrigate crops and for domestic purposes. There is also evidence showing that the water flowing in the drain ditch is necessary to enable the plaintiff to...