Johnson v. Gustafson

• Decision Date: 20 May 1930
• Docket Number: 5457
• Citation: 288 P. 427,49 Idaho 376
• Parties: CARL E. JOHNSON, Respondent, v. FRED GUSTAFSON, Appellant. H. H. PLANK, Respondent, and MINNIE RENO, Defendant
• Court: Idaho Supreme Court

288 P. 427

49 Idaho 376

CARL E. JOHNSON, Respondent, v. FRED GUSTAFSON, Appellant.

H. H. PLANK, Respondent, and MINNIE RENO, Defendant

No. 5457

Supreme Court of Idaho

May 20, 1930

EASEMENTS-WATER AND WATERCOURSES-RIGHT TO OVERFLOW-PRESCRIPTION-TRANSFER OF RIGHTS.

1. General clause conveying "appurtenances" is sufficient to transfer appurtenant water right not specifically described in deed, as regards prescriptive drainage easement (C. S., sec. 5375).

2. Unless expressly reserved, easement annexed to land either by grant or prescription passes as appurtenance of dominant estate, although not specifically mentioned (C. S., sec 5375).

3. Since "easement" is right in lands of another, one cannot have easement in his own lands.

4. Where owner, after using part of tract to derive continuous apparent benefit from residue, sells such part, easement impliedly passes, being necessary for reasonable enjoyment.

5. Drainage right across another's land to carry off surface and surplus irrigation waters, being necessary for reasonable enjoyment of adjoining land, impliedly passed to grantee thereof.

6. Grantee of servient estate, notwithstanding lack of express reservation, took subject to implied reservation of drainage easement appurtenant to adjoining land.

7. Right to flow waste waters and also surplus irrigation waters over another's land, affording natural drainage, may be acquired by prescription.

8. On conflicting evidence, finding sustained by evidence will not be disturbed.

9. Person claiming prescriptive right to maintain dike obstructing natural drainway across his land has burden of showing with substantial certainty extent of claimed right.

10. One defendant, only party appealing, could not complain because co-defendant who defaulted was awarded relief in strict conformity and incidental to relief granted other parties.

11. Defendant in default, against whom no affirmative relief had been asked, was in no position to claim error on co-defendant's appeal.

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. C. J. Taylor, Judge.

Action and cross-action to establish prescriptive easement for drainage. Judgment for plaintiff and cross-complainant. Defendant Gustafson appeals. Affirmed.

Decree, affirmed. Costs to respondents.

O. A Johannesen, for Appellant.

The use of the word "appurtenances" in a conveyance is not sufficient to create an easement nor convey one if it did not exist before. (9 R. C. L. 755.)

Implied grants and reservations are not favored by the courts, and the person asserting such a claim must prove his rights by clear and convincing evidence; it cannot be established by intendment or presumption, nor because of convenience. ( Polson v. Ingram, 22 S.C. 541, Ann. Cas. 1913C, 1112, note; Read v. Webster, 95 Vt. 239, 16 A. L. R. 1068, 113 A. 814; Brown v. Fuller, 165 Mich. 162, Ann. Cas. 1912C, 853, 130 N.W. 621, 33 L. R. A., N. S., 459.)

C. E. Crowley and Arthur W. Holden, for Respondents.

The conveyance of the Tautphaus land in separate parcels to these parties created an easement in the right to use the natural drainway for the drainage of surplus water from their lands, which passed to respondents and Minnie Reno as an appurtenance without express provision in the deeds therefor. (C. S., sec. 5375; Russell v. Irish, 20 Idaho 194, 118 P. 501.)

By their continuous use of the natural drainway for more than five years last past, the respondents and Minnie Reno have acquired a prescriptive right to use the natural drainway for the drainage of surplus water from their lands through the natural drainway and across the land of appellant. ( Beasley v. Engstrom, 31 Idaho 14, 168 P. 1145.)

The claim that an easement has been lost must be established by facts decisive and conclusive. (Adams v. Hodgkins, 109 Me. 361, 84 A. 530, 42 L. R. A., N. S., 741.)

VARIAN, J. Givens, C. J., and Budge, Lee and McNaughton, JJ., concur.

OPINION

VARIAN, J.

In the year 1890 one Tautphaus made homestead entry of the southwest quarter of section 30, township 2 north, range 38, E. B. M., and continued in the possession thereof for more than twenty years, during which time he actively farmed and improved the same, bringing the entire tract under cultivation. The parties to this suit have each acquired a portion of the said original Tautphaus homestead entry. Defendant Gustafson owns 33.94 acres in what is practically the southwest quarter of the larger tract. His deed is dated June 11, 1913. In 1925 plaintiff Johnson acquired the tract adjoining Gustafson on the east, containing 38.4 acres and embracing nearly all of the southeast quarter of the Tautphaus tract, by deed from the grantee of the heirs of Tautphaus. Defendant Plank has title to 28 acres, or most of the northeast quarter of the Tautphaus tract, adjoining Johnson on the north, acquired by deed in 1910. The defendant Reno owns the remainder of the tract lying north of Gustafson and west of Plank.

The topography is such that water placed upon Plank's lands, as well as upon about five acres of defendant Reno's lands, for irrigation, which is not absorbed by the soil or evaporated, drains off on to the Johnson land, and, with such water originating from irrigation by Johnson, continues on to the Gustafson lands, from whence it passes through a culvert under a highway into an irrigation canal. The court found that there is a natural depression or basin, which is alluded to in the evidence by some of the witnesses as a "swale," extending from Plank's land southwesterly through Johnson's land and thence through Gustafson's land to the said highway. In the fall of 1911, while in possession of his lands under contract, Gustafson erected a low dike of earth, about six inches high, upon which he constructed the division fence, across the depression aforesaid and along the easterly line of his land, designed to obstruct the surface and surplus waters flowing on to his land from the Johnson lands. Later, in the fall of 1927, Gustafson erected a new earthen dike, about eighteen inches high, close to and paralleling the six-inch dike.

Johnson commenced this suit early in 1928, against Gustafson, Plank, and Minnie Reno, for the purpose of compelling Gustafson to remove his dike constructed in 1927 and enjoining him from further interference with said drainway, claiming an easement across his lands for drainage purposes, and praying the determination of the rights of plaintiff and all the defendants in such drainway, and for general relief. Plank answered, admitting practically all of the allegations of the complaint, and by cross-complaint asked for the same relief for himself as demanded by plaintiff, and that Johnson and Gustafson be enjoined from interfering with the drainway or waste water from cross-complainant's lands.

In answer to the complaint, defendant Gustafson alleges the erection of the six-inch dike about 1911, and that he has since that time maintained the same, etc.; denies the material allegations of the complaint and cross-complaint as to the existence of a drainway; denies the necessity to irrigate in such a manner as to develop surplus water upon the lands of the other parties; and denies that either of the parties has an easement to drain surplus or waste waters through his said lands. The answer to the cross-complaint further alleges carelessness on the part of the other parties in handling and wasting irrigation water, etc., and pleads right by prescription to maintain the dike along the east boundary line of his premises.

Defendant Minnie Reno defaulted. The cause was tried to the court without a jury, and, upon conflicting evidence, findings and decree were entered in favor of plaintiff Johnson and cross-complainant Plank. Defendant Gustafson alone appeals.

But three questions are presented by this appeal. It is clear from the record that the original patentee (Tautphaus) of the lands involved used the natural drainway to take away his surplus irrigation water, and never attempted to dam the same at any place. The several deeds of conveyance from his widow or heirs to plaintiff and the several defendants, including plaintiff Johnson's grantor contain no particular grant of any easement to run waste or surplus water across Gustafson's lands. However, the deed in every instance contains the usual clause, following the description of the land, conveying the "appurtenances." ...