Hovila v. Bartek

• Decision Date: 26 January 1956
• Docket Number: No. 33315,33315
• Citation: 48 Wn.2d 238,292 P.2d 877
• Parties: Richard J. HOVILA and Sally L. Hovila, husband and wife, Respondents, v. Emil E. BARTEK and Bertha N. Bartek, husband and wife, and Donald S. Peterson and Sophie E. Peterson, husband and wife, Appellants.
• Court: Washington Supreme Court

Page 238

48 Wn.2d 238

292 P.2d 877

Richard J. HOVILA and Sally L. Hovila, husband and wife, Respondents, v. Emil E. BARTEK and Bertha N. Bartek, husband and wife, and Donald S. Peterson and Sophie E. Peterson, husband and wife, Appellants.

No. 33315.

Supreme Court of Washington, Department 1.

Jan. 26, 1956.

Rehearing Denied March 8, 1956.

Merkel & Cook, Bremerton, for appellants.

Merrill Wallace, Bremerton, for respondents.

FINLEY, Justice.

This is an appeal from a judgment wherein plaintiffs were decreed to be the owners of a certain pipeline, which is part of a domestic water supply system, and were given a prescriptive right to maintain the portion of the pipeline which runs through land owned by defendants.

In substance, the facts found by the trial court are as follows: The parties hereto are adjoining property owners. The south portion of respondents' (the Hovilas) land, hereinafter referred to as Tract A, abuts land owned by appellants (the Barteks and the Petersons), hereinafter referred to as Tract B. In 1909, A. H. Moore and his wife, predecessors in title to respondents, purchased Tract A. To furnish water to his place and for irrigation purposes, Mr. Moore decided to construct a pipeline running generally north and south from Barker creek to his property. Apparently, the most direct or practicable route for the pipeline would have been north and south across Tract B, which lies immediately south of Tract A; however, Mr. Johnson, the then owner of Tract B, refused permission for the pipeline to cross through his property. Thereupon, Mr. Moore constructed the pipeline on a less direct route--in effect, going around Tract B through property lying to the east thereof. Subsequently, Mr. Moore changed the course of the pipeline from its original location by running it from Tract A, through Tract B, to an unnamed tributary of Barker creek. This occurred sometime prior to 1927, the year in which Benjamin and Margaret Rotter acquired title to Tract B from one Carter, Mr. Johnson's successor in title. When Mr. Moore changed the location of the pipeline, he also placed a ram in the tributary of Barker creek for the purpose of lifting water into the pipeline. The trial court also found that the Rotters (owners of Tract B from 1927 to 1945) recognized A. H. Moore as owner of the pipeline, the ram located in the tributary, and the water tank located upon Tract A. This finding is supported by Margaret Rotter's testimony relating to the water system: that, when their separate ram froze and became inoperative in the early thirties, the Rotters had asked and received permission of A. H. Moore to connect on to the pipeline then crossing through Tract B. The trial court further found that in 1936 one Louise Conger became the owner of Tract A and entered into an agreement with the Rotters, granting them permission to use the water made available by the ram, pipeline, and water tank previously owned by A. H. Moore. In other words, the trial court found that, for the period from 1927 to 1936, the Rotters recognized A. H. Moore's interest in the pipeline, and Louise Conger's interest and her successors' interest in it from 1936 until 1945. Tract A (first owned by A. H. Moore and then by Louise Conger and certain successors in title) was acquired by the Hovilas (respondents) by mesne conveyances; Tract B was acquired by the Barteks and the Petersons (appellants).

The specific findings of fact which the trial court made relative to the factual situation as it existed from the year 1945 until the commencement of this action are as follows:

'VI. That the defendants Bartek and wife, since the year 1945, and the defendants Peterson since the year 1947, have with the permission of plaintiffs used water from said pipeline and that plaintiffs have revoked permission to use the water furnished defendants by said ram, pipeline and storage tank, and that difficulty has existed between the parties relative to question of ownership, operation and maintenance of the water system.

'VII. That approximately eighteen months prior to the commencement of the action the existing ram placed in said creek by plaintiffs' predecessors in title became open and plaintiffs and defendants by oral agreement purchased a new ram and that defendants have waived all right, title and interest in and to said new ram.'

From the foregoing facts, the trial court made the following pertinent conclusion of law:

'II. That plaintiffs are entitled to a judgment of the Court adjudging them to be the owners of the diversion site for water supply as against any rights of the defendants therein and that plaintiffs are entitled to judgment awarding them the pipeline existing upon defendants' property and that none of said defendants have any right, title or interest in and to said water line existing upon their property and the said plaintiffs are further entitled to judgment awarding them an easement by prescription and by adverse user and possession over, along, above and across the property of the defendants, with the right to maintain the same and with a right to go upon said premises for the purposes of repair and replacement of said existing pipeline.'

Appellants (Barteks and Petersons) assign error to...