Johnson v. Gould et al.
| Decision Date | 20 February 1906 |
| Citation | 60 W.Va. 84 |
| Parties | Johnson v. Gould et al. |
| Court | West Virginia Supreme Court |
Upon partition of real estate descended, between heirs, each heir takes his share of land subject to any apparent, permanent, continuous and reasonably necessary quasi easement which existed thereon, for the benefit of another part of such real estate, at the death of the ancestor, unless the existence of such quasi easement has been discontinued by the heirs before partition, or provision is made by the partition for its discontinuance. (p. 91.)
Upon partition of a farm descended from ancestor, between his heirs, by what is termed an interchangeable or partition deed, whereby they in effect provide for the continuance of an apparent, permanent, continuous and reasonably necessary quasi easement, which existed at the death of the ancestor, upon a part of the farm for the benefit of another part thereof, and convey to one of the heirs the servient part and to other of the heirs the dominant part, the one to whom the servient part is thus conveyed has no right to so change the physical condition thereof as to materially and permanently interfere with or destroy such easement. (p. 94.)
Where such easement consists of a right to a supply of water naturally issuing or flowing from the servient land, the owner thereof has no right to cut off or materially impair that supply by making excavations, tunnels, walls or other constructions on the servient land. (p. 96.)
A court of equity has jurisdiction, by injunction, to prevent a continuing material interference with an easement. (p. 97.)
Appeal from Circuit Court, Wood County.
Bill by Nannie K. Johnson against Fannie M. Gould and others. Decree for plaintiff, and defendant Gould appeals.
Reversed.
V. B. Archer and Wm. Beard, for appellant.
Dave D. Johnson and Van Winkle & Ambler, for appellee,
This cause is upon the rehearing of an appeal from a final decree of the circuit court of Wood county. We adopt the substance of the statement of the case made by Judge Miller, who delivered the former opinion.
Eppa T. Bartlett was in his lifetime the owner of a certain farm in Wood county, described in the record of this case as the "Home Farm," situate near Parkersburg. This farm was divided by a public road. East of the road, and bounded thereby, was a lot measuring 125 feet on each of its four sides, known as the "spring lot," and other land belonging to said farm. Upon the land west of the road were ice ponds, an ice plant, and some buildings.
In 1893, said Eppa T. Bartlett died intestate, survived by Martha Bartlett, his widow, John J., Gertrude O. and Sallie Bartlett, and Fannie M. Gould (nee Bartlett), his only children and heirs at law. By a writing dated the 27th day of April, 1893, the said children, and the husbands of Gertrude O. Bartlett and Fannie M. Gould, agreed upon the division of the estate of which Eppa T. Bartlett died seized. It was therein provided that the "part of the home farm lying east of the center of the public road, except the spring lot, shall be conveyed to said Fannie M. Gould"; that the part thereof west of the center of said road, and also the spring lot, "embracing the ice ponds, ice houses, engine and machinery, and two tenement houses, * * * shall be conveyed to Gertrude O. Bartlett and Sallie Bartlett jointly." It was further provided therein that "the free use and access to the spring lot and spring, for stock, farm uses and all domestic purposes, shall be perpetually reserved to the lands east of the road, but so as not to interfere with the protection of the spring, and its flow to the ice pond." This agreement was consummated by an interchangeable or partition deed, executed on November 22nd following, whereby the proper parties conveyed, quit-claimed and released to the grantees therein the several estates mentioned in the partition agreement. In the grant therein to Gertrude O. and Sallie Bartlett was the clause: "But there is reserved to the lands hereinafter mentioned, and conveyed to Fannie M. Gould, the free use and access to the said spring lot and spring, for stock, farm uses and all domestic purposes, but so as not to interfere with the protection of the said spring, and its flow to the ice ponds on the west side." In the part of the deed conveying to the said Fannie M. Gould the land east of the public road, except the spring lot aforesaid, was the provision: "Also the free use and access to the spring lot and spring, for stock, farm uses and all domestic purposes as aforesaid." The conveyances by this deed were subject to the widow's dower. Sallie Bartlett subsequently died testate. By her will, her undivided interest in the estate owned jointly by her and Gertrude O. Bartlett, being the lands on the west side of the road and also the spring lot, was devised to her mother, Martha, for life, and after her death to plaintiff, Nannie K. Johnson.
Afterwards Gertrude O. Bartlett brought a suit against Eppa T. Bartlett's administrator, his widow, Martha, Nannie K. Johnson, Fannie M. Gould, and others, to assign dower in the land of which Eppa T. Bartlett died seized, and to partition the land conveyed by the interchangeable deed to Sallie and Gertrude O. Bartlett jointly. The commissioners appointed in that suit reported "that all the parties to whom allotments and partitions have been made of the home farm, shall at all times have the free use and access to the said 'spring lot' and spring aforesaid, to obtain water for stock, farm uses, and all domestic purposes, but so as not to interfere with the protection of the said spring, and its flow to the ice ponds on the west side of the public road." By decree of January 11, 1896, the report of the commissioners was confirmed, the decree containing exactly the same language used by the commissioners with reference to the rights of the several parties to the spring lot and spring. The land west of the road, designated by the commissioners as lot No. 4, and also the spring lot, were decreed to Martha J.Bartlett for life, and after her death to Nannie K. Johnson; and that part of the land east of the road, designated by the commissioners as lot No. 6, not including the spring lot, was also decreed to said widow for life, and after her death to Fannie M. Gould. Upon the death of said Martha J. Bartlett, on December 29, 1899, the title to lot No. 4 and to the spring lot became absolute in Nannie K. Johnson; and the title to lot No. 6 became absolute in Fannie M. Gould.
On the 28th day of August, 1899, Fannie M. Gould filed her bill in chancery against Nannie K. Johnson and others, and obtained an injunction inhibiting them from interfering with her right of free access to, and use of, said spring lot and spring in the manner theretofore enjoyed. Certain criminal proceedings against sons of Fannie M. Gould, Cecil R. and Earl Gould, for the removal of a part of said fence, which act was claimed to be a trespass, were enjoined.
After the death of Martha J. Bartlett, Nannie K, Johnson filed her cross-bill in said cause against Fannie M. Gould and others, alleging therein the foregoing facts and many other facts, and claiming to be entitled to the rights and priv- ileges under the several contracts and decrees with reference to the said spring lot and spring.
She further alleged that for many years prior to the death of Eppa T. Bartlett, he had resided upon the land east of said road; that upon the land west of said road he had constructed and maintained for many years large ice ponds, and an ice plant and that for more than thirty years the ice procured therefrom had been of special value on account of its purity, and had produced a large revenue; that said spring was of large volume; that it had been known for more than a century, and had been called the "Bartlett Spring" for forty years; that in 1884 said Bartlett placed a line of tiling from the spring to a point near the line between lot No. 6 and the spring lot; and that all of the parties to said contract and deed had been familiar from childhood with the situation and condition of the lands partitioned, and that the values were agreed upon with the distinct understanding that the spring should be forever maintained.
She further alleged in her cross-bill that, within a short distance (shown by the evidence to be about 22 feet) from the line dividing the spring lot from the land of Fannie M. Gould, the latter and her sons had dug down into her (Mrs. Gould's) lands for a distance of more than 20 feet and to the depth of about 8 feet, and had struck the subterranean stream of water which supplied said spring, cutting off the stream and wholly preventing its flow to the spring; that, in the excavation so made into the hill or bluff and across the channel of said stream, Mrs. Gould and her two sons had built a brick tunnel; that the wall thereof, on the side next to the spring lot, is of solid masonry, cemented so as to be absolutely impervious to water, thereby wholly obstructing said stream; that a large and copious flow of the water, thus hindered, is now carried down to the public road and conveyed, through tiling, along the western boundary of said spring lot and upon the highway, and thrown to waste in a branch of Pond Bun, which is below the level of the said Johnson's ice ponds.
Fannie M. Gould filed her demurrer and answer to said cross-bill, denying that she was bound to maintain or protect the supply of water in said spring on the spring lot, and admitting, and claiming the legal right to make the excavations upon her own land. She also admitted the placing of the tiling drain upon the public road, but averred that it was done under authority of the county court.
Upon final hearing at January term, 1902, the...
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