Jobling v. Tuttle

• Decision Date: 09 March 1907
• Docket Number: 14,922
• Citation: 89 P. 699,75 Kan. 351
• Parties: JOHN JOBLING v. JAMES L. TUTTLE
• Court: Kansas Supreme Court

89 P. 699

75 Kan. 351

JOHN JOBLING v. JAMES L. TUTTLE

No. 14,922

Supreme Court of Kansas

March 9, 1907

Decided January, 1907. [Copyrighted Material Omitted]

Error from Cowley district court; CARROLL L. SWARTS, judge.

STATEMENT.

PLAINTIFF is the owner of a hotel at Geuda Springs, in Cowley county. He brought this suit to enjoin the proprietor of the Geuda mineral springs from denying to him and to the guests and servants of the hotel free access to, and use of, the mineral waters of the springs. His claim is that an easement had been acquired by himself and his predecessors in title to the free and uninterrupted use of the waters. As set out in the petition, this claim is founded, first, upon prescription second, upon an executed parol contract.

The right by prescription, it was alleged, arose out of the continuous, open, notorious and adverse use of the waters of the springs for drinking purposes by the public and by the plaintiff's grantors under a claim of right for a period of more than fifteen years preceding the commencement of the suit.

The claim under an executed parol contract, as set forth in the petition, is that in 1887 the waters of the springs had acquired a widespread reputation for possessing medicinal qualities and had begun to attract visitors; that there were in the small town of Geuda Springs no adequate hotel accomodations, and no local demand sufficient to induce any one to erect a hotel attractive to visitors seeking rest and recreation at the springs; that the Geuda Springs Town and Water Company then owned the springs, and sold to S. L Gilbert the ground upon which the plaintiff's hotel is located, and, in order to induce Gilbert to erect a large. and commodious hotel, made a verbal agreement with him that if he would do so the company would grant to him and his successors, and to the guests and servants of the hotel, forever, the free and uninterrupted use of the mineral waters for drinking purposes; that in pursuance of the verbal agreement Gilbert built a hotel costing $ 18,000; and that since that time Gilbert and his successors in title, and the guests and servants of the hotel, had enjoyed the free use of the waters without interruption, until defendant, a short time before the commencement of the suit, had closed the springs and denied to plaintiff and the public access to the waters.

It was alleged that plaintiff purchased the hotel May 1, 1905, paying therefor the sum of $ 11,000, and that defendant had, on the 19th day of May, 1905, closed the springs and denied to plaintiff and his guests further use of mineral waters; that without the free and uninterrupted use of the waters and access at all times to the springs the hotel could not be operated except at great financial loss.

The answer alleged that on December 1, 1901, the defendant purchased the property upon which the mineral springs are located, paying therefor the sum of $ 18,750, at which time the public records showed no claim or easement in or to the springs by the public or the owner of the hotel property; that he had no notice, actual or constructive, of any interest or claimed easement, appurtenant or otherwise, in or to the mineral springs on the part of plaintiff's predecessors in title, and had no notice or knowledge that the public generally or the citizens of Geuda Springs or the proprietors, guests or servants of the hotel had ever used or claimed the right to use the waters of the springs; that he had no notice or knowledge of any parol agreement with regard to the erection of the hotel, as alleged in the petition, and had purchased in good faith, and would not have purchased had he known of any of the interests or rights claimed by the public or plaintiff's predecessors.

The reply, in addition to the general denial, alleged that the agent of defendant, who represented him in the purchase of the property, had notice of everything alleged in the petition.

The facts in the case appear from the findings made by the court, which follow:

"(1) That the town of Geuda Springs, Kan., was, in 1888, and now is, a city of the third class, possessing a population of from two hundred and fifty to three hundred and fifty inhabitants, and is located near the Geuda mineral springs, the use of the waters of which springs are in controversy in this action.

(2) That from the year A. D. 1874 to May 29, 1905, the said Geuda mineral springs, located in Cowley county, Kansas, have at all times been open to the free and uninterrupted use of the public and of the citizens of the town of Geuda Springs for drinking purposes.

"(3) That the said town of Geuda Springs, since 1874, has been chiefly and largely kept up on account of the medicinal qualities of the water of said springs.

"(4) That in and during the year 1888 the Geuda Springs Town and Water Company, a duly organized corporation under the laws of the state of Kansas, was the owner of said Geuda mineral springs, comprising seven springs, possessing great medicinal and curative properties.

"(5) That in the year A. D. 1888 S. L. Gilbert visited the said town of Geuda Springs, and was desirous of erecting a hotel at said town near said springs which would accommodate the people visiting said springs for health and pleasure. And at said date the officers and agents of said town and water company had conversations with said Gilbert, and it was agreed by and between said officers and Gilbert that said town company would donate to said Gilbert lots upon which to erect a hotel, and also donate to Gilbert money and other property, all in the aggregate of the value of two thousand five hundred ($ 2500) dollars, in consideration of said Gilbert erecting said hotel, and at said time said officers and agents stated to said Gilbert that his boarders, guests and help at said hotel would have the privilege for drinking purposes of using said water of said springs at all times that the said statement so made to said Gilbert and relied on by him for the use of said waters for drinking purposes was not reduced to writing; that said Gilbert did erect a three-story hotel, about three hundred seventy-five feet from said mineral springs, and at an aggregate cost of about $ 7000, including furniture and equipment; that the said Geuda Springs Town and Water Company donated the said lots and paid cash to said Gilbert, all of the aggregate value of twenty-five hundred dollars; that said company caused to be conveyed to said Gilbert by a warranty deed the said lots, containing the ordinary covenants of general warranty; that there was nothing in said deed which in any wise referred to or pertained to the said Geuda mineral springs; and that, at said date, there were seven other lots in the same block, upon which the said hotel was thereafter erected, which said seven lots were situate between the lots conveyed to Gilbert and the said mineral springs.

"(6) That the hotels at Geuda Springs, prior to 1888, were sufficient to accommodate all persons desiring to visit Geuda Springs, except for pleasure and medicinal purposes.

"(7) That said S. L. Gilbert, who built the said hotel, which is now known as the Loomis hotel, and his successors in title and occupancy of said hotel property, down to near May 29, 1905, including all the guests, boarders and help at said Loomis hotel, used the water of said springs for drinking purposes without the objection on the part of the owners of said springs, which said use was in the same manner and to the same extent as the use made of said water by the general public.

"(8) That said Geuda Springs property, being the said mineral springs, was purchased by Anton Appel, Owen J. Martin, and James L. Tuttle, the defendant in this case, on or about December 1, A. D. 1901, for the agreed consideration of eighteen thousand, seven hundred fifty ($ 18,750) dollars.

"(9) That at the time the contract of purchase was entered into between Taylor and Reeves and said Martin, Tuttle and Appel to purchase said property, they paid $ 1000 of the consideration in cash, one-half of which was paid by Tuttle, and one-fourth of which was paid each by Martin and Appel; subsequently, about January 1, 1902, they paid $ 10,000 more of the purchase-price, and thereafter, about July 1, 1902, the balance of the purchase-price, $ 750, was paid in cash, and said Taylor and Reeves conveyed said mineral-springs property and other property to James L. Tuttle by a general warranty deed, with full covenants of warranty; that at the time of the payment of the $ 10,000, January 1, 1902, the said Taylor and Reeves placed Martin, Tuttle and Appel in possession and occupancy of said property; that between the date of the payment of the $ 10,000 in January, 1902, and the final payment of the purchase-price in July, 1902, the defendant Tuttle purchased the interest of Appel in and to said premises, and about the month of October, 1902, said Tuttle purchased the interest of Martin in said property, and thereby became the absolute and exclusive owner of all said property.

"(10) That on or about November 15, 1901, said Owen J. Martin and said James L. Tuttle, defendant, visited and were present in the town of Geuda Springs looking over the property with a view of purchasing said Geuda mineral springs.

"(11) That said Anton Appel, one of the purchasers of said property, had visited said springs several times before said purchase, and had full knowledge that the public generally used said springs for drinking purposes.

"(12) That the said S. L. Gilbert and his successors in title to the said property, known as the Loomis hotel property described in plaintiff's petition in this action, continuously used the waters of said mineral springs for drinking purposes from the date of the erection of said...