Johnson v. Higley

• Decision Date: 07 October 1999
• Docket Number: No. 981252-CA.,981252-CA.
• Citation: 1999 UT App 278,989 P.2d 61
• Parties: Russell JOHNSON and Peter Johnson, Plaintiffs and Appellees, v. Arthur Stephen HIGLEY and Susan M. Higley, Defendants and Appellants.
• Court: Utah Court of Appeals

989 P.2d 61

1999 UT App 278

Russell JOHNSON and Peter Johnson, Plaintiffs and Appellees, v. Arthur Stephen HIGLEY and Susan M. Higley, Defendants and Appellants.

No. 981252-CA.

Court of Appeals of Utah.

October 7, 1999.

John K. Mangum and Scott M. Ellsworth, Salt Lake City, Nielsen & Senior, PC, and B. Kent Ludlow, South Jordan, for Appellants.

Marc T. Wangsgard, Williams & Hunt, Salt Lake City, for Appellees.

Before WILKINS, P.J., DAVIS, and ORME, JJ.

AMENDED OPINION¹

ORME, Judge:

¶ 1 Defendants Arthur Stephen Higley and Susan M. Higley appeal the trial court's judgment in favor of plaintiffs Russell Johnson and Peter Johnson, enjoining Higleys from interfering with Johnsons' use of the Blue Lakes reservoirs on Higleys' property and awarding monetary damages for flooding. We affirm.

BACKGROUND

¶ 2 "On appeal from a bench trial, we view the evidence in a light most favorable to the trial court's findings, and therefore recite the facts consistent with that standard." Lake Philgas Serv. v. Valley Bank & Trust Co., 845 P.2d 951, 953 n. 1 (Utah Ct.App.1993). Accord Van Dyke v. Chappell, 818 P.2d 1023, 1024 (Utah 1991)

.

¶ 3 Plaintiffs Johnson are brothers who inherited their Grantsville, Utah, property (the Johnson Ranch) from their father, Maxwell Johnson. In 1990, defendants Higley purchased property (the Higley property) adjacent to the Johnson Ranch, subject to "all easements and rights of way actual or of record or that may be apparent upon inspection of the surface." The Higley property contains the Blue Lakes reservoirs. The water in the Blue Lakes has been periodically used by Johnsons and their predecessors in interest—Paul Wrathall and others—since at least 1950 for crop irrigation and to provide water for cattle.

¶ 4 In 1946, Penina W. Anderson and J. Keith and Elba H. Brown, who then owned the Higley property, executed deeds (the Wrathall Deeds) conveying easements to Paul E. Wrathall.² Wrathall owned property, which is now owned by George C. Brown, near the Higley property. The Wrathall Deeds were promptly recorded with the Tooele County Recorder and granted Wrathall and "his successors in interest and assigns" the right to store water on Anderson's and Browns' land through "an unconditional easement and right in and to [the land]" which "shall be in force and effect perpetually." Neither deed mentioned any particular parcel of land, adjacent or otherwise, upon which Wrathall was required to use the water, or any particular purpose to which the water would be put. Both deeds encumbered enough land to contain water that runs there naturally, and the Brown deed specifically limited the encumbered land to the "natural reservoir basin." Later in 1946, Wrathall conveyed to Maxwell A. Johnson, Johnsons' father and predecessor in interest, an undivided one-half interest in the easement, any related dikes or dams, and the right to store water in the reservoirs. This conveyance (the Johnson Deed) was not recorded until 1995.³ In 1986, Russell Johnson obtained the right to store water in the reservoir from the State Engineer. Defendants Higley, however, have obtained no such state-sanctioned rights.

¶ 5 Beginning in December 1995, Higleys channeled water into the Blue Lakes. This deprived Johnsons of some space in which to store their water. In the summer of 1996, Higleys blocked Johnsons' irrigation ditch and directed the excavation of a canal into one of the reservoirs, draining Johnsons' stored water from the reservoir.

¶ 6 The Higley property also contained uncapped artesian wells, which are jointly owned by defendant Arthur Higley and five other individuals. The water from these wells followed the "Higley Ditch" through the Higley property and then along the western edge of the Johnson Ranch. Although the approved water rights pertaining to the wells permitted use of this water during the summer months only, the wells were not capped during the winter. In the winters of various years, the Higley Ditch, abutting the Johnson Ranch, would fill with debris and ice and overflow its banks, flooding a portion of the Johnson Ranch. To remedy this problem, Johnsons granted Higleys an easement across their property to install a pipeline for transporting the water that would otherwise flow in the Higley Ditch. However, Arthur Higley selected a pipe size that could not handle the water flow. As a result, in January and March of 1996 and from November 1996 through the summer of 1997, surplus water again flooded the Johnson Ranch.

¶ 7 Johnsons brought this action seeking compensatory damages for the repeated flooding, punitive damages for interfering with their water rights, and an order enjoining future flooding and interference with their right to store water in the Blue Lakes. Defendants Higley asserted various defenses, including that Johnsons' water rights were invalid because based upon an ineffectively conveyed easement and that Johnsons consequently had no water rights with which Higleys could interfere. Higleys alleged that even if the easement was otherwise valid, it was unenforceable against Higleys because, under the recording statute, they were bona fide purchasers for value and had no notice of the unrecorded Johnson Deed. Higleys also argued that the easement had been abandoned and that Johnsons' own conduct caused the flooding. Higleys also counterclaimed, arguing they owned the water in the Blue Lakes and that Johnsons interfered with their water rights in various ways.

¶ 8 Higleys also moved to compel joinder of indispensable parties, requesting joinder of the other five joint owners of the wells on the Higley property and all persons claiming an interest in Johnsons' claimed easement. Higleys argued that failure to join such parties may "impair or impede their ability to protect [their] interest as against the claims of [Johnsons]." The trial court denied the motion because the "action grows solely out of the alleged conduct of [Higleys], [Johnsons] seek no relief against anyone other than [Higleys, and] for the reasons set forth in Johnsons' memorandum in opposition to said motion."

¶ 9 After a bench trial, the court determined that Susan Higley was not monetarily liable to Johnsons, entered judgment against Arthur Higley on Johnsons' claims and Higleys' counterclaims, and permanently enjoined Higleys from interfering with Johnsons' use of the Blue Lakes and from diverting more water into the pipeline than it can carry. The court also awarded Johnsons $8,650 in damages, including $450 predicated on Higleys' one-sixth joint ownership in the artesian wells. In so doing, the trial court concluded that Johnsons owned an easement to store water in the Blue Lakes and that Higleys were not bona fide purchasers for value, without notice, against whom Johnsons' easement was invalid. Higleys appeal.

ISSUES

¶ 10 Higleys raise several issues on appeal. First, they challenge the judgment enjoining them from interfering with Johnsons' right to store water in the Blue Lakes, arguing Johnsons have no such right because they lack a valid easement and that even if the easement were valid, it is unenforceable against Higleys under the recording statute.⁴ Next, Higleys claim the trial court erred in denying their motion to compel joinder of indispensable parties or to dismiss. Finally, Higleys challenge the trial court's findings that Higley caused the flooding of the Johnson Ranch and that Higley interfered with Johnsons' water rights.

JOHNSONS' EASEMENT

¶ 11 First, Higleys argue that Johnsons' easement, originally granted to Maxwell Johnson by Wrathall via the Johnson Deed, was ineffective because the easement was appurtenant and the grant did not convey the dominant estate. The interpretation of an unambiguous deed is a question of law, which we review for correctness. See Gillmor v. Cummings, 904 P.2d 703, 706 (Utah Ct.App.1995),

cert. denied, 913 P.2d 749 (Utah 1996). Because the parties have not pointed to any ambiguity in the Wrathall Deeds granting the original easement, and—like the trial court—we see none, the interpretation of the Wrathall Deeds presents a question of law.

¶ 12 Without disputing the validity of the Wrathall Deeds, Higleys argue that the easement was appurtenant and, because it could not be transferred separately from the dominant estate, the subsequent conveyance of a one-half undivided interest in the easement to Maxwell Johnson was legally ineffective. Of course, if we conclude the easement is not appurtenant, but rather is a commercial easement in gross, their key argument fails, as a commercial easement in gross is fully transferable.⁵See Crane v. Crane, 683 P.2d 1062, 1066 (Utah 1984) ("`Easements in gross, if of a commercial character, are alienable property interests.'") (quoting Restatement of Property § 489 (1944)).

¶ 13 An easement in gross is not tied to any particular piece of land, and "grants to the holder the right to enter and make use of the property of another for a particular purpose." Warburton v. Virginia Beach Fed. Sav. & Loan Ass'n, 899 P.2d 779, 781 (Utah Ct.App.1995). In contrast, an appurtenant easement, such as one for access or for constructing and maintaining a retaining wall, "inheres in the [grantee's] land, concerns the premises, and pertains to its enjoyment. It is incapable of existence separate from the particular land to which it is annexed." 25 Am.Jur.2d Easements and Licenses § 10 (1996). See Abbott v. Nampa Sch. Dist. No. 131, 119 Idaho 544, 808 P.2d 1289, 1295 (1991)

("`An easement . . . "appurtenant". . . serves the owner of [the benefitted land] in a way that cannot be separated from his rights in the land.'") (quoting R. Cunningham et al., The Law of Property § 8.2, at 440 (1984)).

¶ 14 The Wrathall Deeds did not tie Wrathall's easement to the use of his land and, indeed, made no mention of his land at all. Rather, the deeds expressly provided for "unconditional" use and authorized storage "or other use of said water,"...