Fitzstephens v. Watson

• Citation: 218 Or. 185,344 P.2d 221
• Parties: William FITZSTEPHENS, Respondent and Cross-Appellant, v. L. W. WATSON and Anna May Watson, R. B. Bobo and Inell Bobo, Appellants.
• Decision Date: 23 September 1959
• Court: Oregon Supreme Court

Page 221

344 P.2d 221

218 Or. 185

William FITZSTEPHENS, Respondent and Cross-Appellant, v. L. W. WATSON and Anna May Watson, R. B. Bobo and Inell Bobo Appellants.

Supreme Court of Oregon, Department 1.

Argued July 8, 1959.

Decided Sept. 23, 1959.

J. B. Bedingfield, Coos Bay, argued the cause for appellants. With him on the brief was Herbert R. Dewart, Gold Beach.

Frederic H. Starkweather, Jr., Gold Beach, argued the cause and submitted a brief for respondent and cross-appellant.

Before McALLISTER, C. J., and PERRY, O'CONNELL and CRAWFORD, JJ.

O'CONNELL, Justice.

This is an appeal by the defendants from a decree permanently enjoining the defendants from interfering with the flow of water in a pipeline running from a reservoir on defendants' land to the land of the plaintiff. The decree also enjoined the defendants from violating the terms of an 'Easement Deed' in which the defendants covenanted to maintain the water system through which the water was conveyed to the grantee's land. The plaintiff's prayer for damages resulting from the alleged conduct of the defendants in cutting off plaintiff's water supply was denied.

We shall refer to the defendants' and the plaintiff's lands as the servient and dominant tracts respectively. Both of these tracts originally constituted one large parcel known as the 'Davies Ranch.' Various seeps and springs rise on the servient tract now owned by the defendants. The water from these sources forms a small creek with well defined banks which runs southwesterly a distance of approximately 1800 feet where it empties into the Rogue River. The creek never wholly leaves the tract referred to as the 'Davies Ranch' although for a few feet just north of the river a part of the creek flows over the land of an adjoining owner, the center of the creek marking the boundary between the contiguous parcels.

While Davies was still the owner of the entire tract known as the Davies Ranch he installed a water system to make use of the spring water on his land. He placed a pipe in the creek bed near the springs from which the water was permitted to flow by gravity to a large redwood storage tank. The intake pipe leading to the tank was originally either three-fourths or one inch in diameter, the evidence on this point being in dispute. A two-inch pipe conveyed the water from the reservoir for use on the ranch.

On November 20, 1956 Davies and his wife conveyed the dominant tract, consisting of approximately three acres, to Robert W. Mairs and Harriet B. Mairs. This tract was bounded on the west by the creek described above. According to the plaintiff's testimony a part of the consideration for the sale of the dominant parcel was an oral agreement between the parties by which the grantors promised to supply to the grantees water from the system on the grantor's land. Soon after the conveyance Mairs connected a two-inch pipe to the pipeline on the land retained by the grantors and used the water on the dominant tract. Thereafter, Davies and his wife executed and delivered to the Mairs an instrument entitled 'Easement Deed' which was dated '___ January, 1947,' acknowledged October 8, 1947 and recorded on October 25, 1947. The relevant parts of this instrument are as follows:

'Whereas the grantors have agreed, * * * to furnished [sic] to the grantees water for use on the above described premises to the extent of three-eighths of the volume now presently flowing through the pipe line connecting a reservoir situated on the property of the grantors and running to the property above described owned by the grantees, and

'Whereas the grantors further agree to maintain an adequate reservoir and pipe line to furnish said water,

'Now this Indenture Witnesseth that the grantors hereby covenant that they, their heirs or assigns will maintain a reservoir on the property now known as the Davies Ranch and a pipe line leading from the said premises to the above described premises owned by the grantees and will furnish to the grantees, their heirs or assigns, water equal to three-eighths of the volume now flowing through the pipe line presently carrying water from the Davies Ranch premises to the above described premises owned by the grantees.'

On November 4, 1947 Davies and his wife conveyed the servient tract to the defendants L. W. Watson and Anna May Watson and two other grantees whose interest the Watsons later acquired. The deed effecting this conveyance contained the following exception:

'Also excepting a certain water right appertaining to a portion of said excepted Tract 1.'

A portion of Tract 1 constituted a part of the dominant tract.

The Mairs developed a part of the dominant tract as a fishing resort which was serviced by water from the pipeline. On April 27, 1948 they sold the eastern two-thirds of the dominant tract, including the resort buildings, to the plaintiff and his wife. No mention was made in the deed of the water right described in the 'Easement Deed.' Upon the death of his wife the plaintiff became the sole owner of this parcel. The plaintiff made improvements on his tract, including the construction of additional cabins, a trailer camp and laundry failities, all of which used water from the pipeline.

The remaining one-third of the dominant tract was conveyed on August 25, 1950 by the Mairs to Edgar B. Spear and wife, the deed including a grant of 'all water right pertaining' to the land conveyed.

The defendants likewise have developed the servient tract as a fishing resort which is in competition with the plaintiff's business. The defendant Inell Bobo is the daughter of the Watsons. She and her husband, the defendant R. B. Bobo, live on the servient tract. The water from the system was used on dominant and servient tracts by the various owners without a water permit from the State Engineer until June 17, 1949 when the Watsons obtained a permit, followed by a 'Certificate of Water Right' dated July 6, 1954.

On numerous occasions from 1949 until this suit was filed the plaintiff's water supply was interrupted for periods ranging from five minutes to five hours. The interruptions resulted from the defendants' conduct in closing a valve in the pipe leading to the plaintiff's land. The plaintiff's pipeline ran downhill and the defendants' slightly uphill, as a consequence of which the defendants were the first to suffer in the event of a water shortage. The defendants contend that the water was shut off on the occasions referred to in order to obtain a flow of water in the pipeline leading to their buildings when the water supply was short. It was also contended by the defendants that the shortage of water in the system was due in part to the plaintiff's wasteful use of the water. The plaintiff accuses the defendants of cutting off the water supply for the purpose of harassing the plaintiff and interfering with his resort business.

In 1950, shortly after the interruptions in his water supply had begun the plaintiff obtained a revocable license to draw water from a spring on the property of a landowner on the opposite side of the Rogue River. The water was pumped across the river through plastic pipe which had to be removed from time to time to prevent its being swept away by the destructive force of the river current. The plaintiff has included the cost of installing and operating this system as a part of the damage alleged to be attributable to defendants' unlawful conduct in cutting off the plaintiff's water supply.

The controversy between the parties was finally brought to a head by a letter written on October 9, 1954 by the defendants' attorney informing the plaintiff that the defendants would need all of the water during the following spring season and that the plaintiff would not be permitted to use any water from the system from that time forward. On February 15, 1955 the plaintiff filed the present suit. The trial court held that the 'Easement Deed' referred to above created 'a valid and perpetual easement and is binding and effective as to all its terms and covenants therein contained'; that the rights and duties thus created ran with the land both as to benefit and burden; and that the defendants were permanently enjoined from interfering with the plaintiff's use of the water and from violating the covenants in the deed. As we have already stated, the trial court rejected plaintiff's claim for damages.

The water which is the subject of dispute has its surface source in two springs which arise on the defendants' land. The plaintiff asserts that the point of diversion for the water system is directly from the springs at the point where they issue from the ground. The defendants assert that the water is diverted from the bed of a small creek formed by the springs. The plaintiff admits that the waters leaving the springs follow a defined channel over defendants' land and eventually empty into the Rogue River. It is shown that the water never completely leaves the defendants' land although it touches neighboring land for a short distance before it reaches the river. The evidence clearly establishes the fact that water flows all year 'round between well defined banks through most of its course. Although it runs only a short distance from its source to the river we are satisfied from the testimony that the water flows in a watercourse. Levene v. City of Salem, 1951, 191 Or. 182, 229 P.2d 255; Hansen v. Crouch, 1920, 98 Or. 141, 193 P. 454; Simmons v. Winters, 1891, 21 Or. 35, 27 P. 7, 28 Am.St.Rep. 727; Shively v. Hume, 1881, 10 Or. 76.

It is the plaintiff's position that the spring waters in question were a part of the land and that an easement entitling the grantee to the use of a part of the water could be created. In support of this position plaintiff relies upon ORS 537.800 which reads as follows:

'All ditches now or hereafter constructed, for the purpose of utilizing waste, spring, or seepage waters, shall be governed by the same laws relating to...