Nielson v. Sandberg

• Decision Date: 27 September 1943
• Docket Number: 6555
• Citation: 105 Utah 93,141 P.2d 696
• Court: Utah Supreme Court
• Parties: NIELSON v. SANDBERG

141 P.2d 696

105 Utah 93

NIELSON v. SANDBERG

No. 6555

Supreme Court of Utah

September 27, 1943

Appeal from District Court, Fifth District, Washington County; Will L. Hoyt, Judge.

Action by Israel Nielson, Jr., against Neils Sandberg to enjoin defendant from letting his turkeys roam in and about ditch over the defendant's property. From an adverse judgment defendant appeals.

Reversed and remanded for further proceedings in accordance with opinion.

Ellis J. Pickett, of St. George, for appellant.

LeRoy H. Cox, of St. George, for respondent.

LARSON Justice. McDONOUGH, MOFFAT, and WADE, JJ., WOLFE, Chief Justice, concurring.

OPINION

LARSON, Justice.

What new burdens can be imposed upon the servient estate, merely because of the existence of an easement? We are asked to review the answer to this question as given by the District Court of Washington County.

About 1866, the pioneers of Washington County established a Cotton Factory near St. George. To furnish power for this factory, water was diverted from Sand Hollow Wash, or Mill Creek, and taken in a ditch constructed for that purpose over part of the southeast quarter of Section 15, Township 42 South, Range 15 West of Salt Lake Base and Meridian, to a forbay where a penstock led down to the factory building. Part of these waters, not needed at the cotton factory were continued by a ditch from the forbay along the creek bank some distance where it furnished power for a grist mill, and flowed back into the creek bed. It was then diverted from the creek bed by another ditch and used by an irrigation company and individuals on their farms. In 1875, the quarter section above referred to was patented by one Whitehead which patent contained the usual reservations for

"any vested and accrued water rights * * * and rights to ditches and reservoirs used in connection with such water rights as may be recognized and used by local customs, laws and decisions of the court."

This patent covered the lands now embraced within the Washington Townsite Survey and the lands occupied by the cotton factory. The lands owned by plaintiff and hereinafter referred to as the swimming pool, and the lands of defendant, hereinafter referred to as the pasture are parts of the Washington Townsite Survey. The factory operated until 1901, and thereafter only periodically until 1920, when it closed permanently. The grist mill ceased operations in 1918. The water, however, continued to flow through the ditch across the pasture, as it had done previously, and emptied into the original creek bed from which it was diverted by the farmers. About 1909, defendant became the owner of Block 20 and Lot 27 of Washington Townsite Survey. Lot 27, herein designated as the Pasture is largely in the bottom of the wash, has some trees, grasses and bushes upon it, and is chiefly useable, and has always been used, as pasturage for domestic animals and poultry. Block 20, adjoining it on the west is on higher ground. Part of this is cultivated and here defendant has his home.

Plaintiff acquired Lot 6, Block 12, in the Townsite Survey, south of defendant's property, and in 1926 built a swimming pool thereon. That year through the State Engineer's office, he appropriated 4 C. F. S. of water from Sand Hollow Wash or Mill Creek, to be diverted at a point north of defendant's property, conducted through the old factory ditch to the swimming pool, there used for swimming purposes, and then returned to the natural channel. In short, all plaintiff proposed to do was to make a nonconsumptive use of the waters, which were flowing across defendant's land in the ditch of the factory and mill. In 1940, plaintiff commenced this action in the District Court to enjoin defendant from letting his turkeys roam in and about the ditch over defendant's property, alleging that the turkeys polluted the water so it was unfit for swimming pool purposes. The trial court enjoined defendant from running more than 70 head of turkeys on his lands. Defendant appeals. The following questions are presented:

First: Has plaintiff a right of way or easement for a ditch over the lands of defendant, the pasture?

Second: If he has such right of way or easement does that give him the right to have the water come to his swimming pool, pure and uncontaminated?

Third: Can the owner of an easement change the nature of his use so as to put added burdens upon the servient estate?

We will consider them in order. As to the first question, plaintiff does not contend that he ever obtained by purchase, or eminent domain, or by grant or prescription, any easement over the pasture for the conveyance of water. He bases his right upon two grounds. He contends that since the ditch ran over the pasture before patent, the reservation of existing easements by the patent, created an easement in favor of any one who thereafter wished to avail themselves of existing ditches; also contends that since the factory and mill had a ditch over the pasture, 100-1-7, U. C. A. 1943, gives plaintiff an easement right therein without the consent and against the will of the owner of the servient estate, and without compensation therefor. The patent to the pasture reserved an easement over the lands for:

"* * * any vested and accrued water rights for mining, agriculture, manufacturing, or other purposes, and rights to ditches and reservoirs used in connection with such water rights as may be recognized by * * * law * * *." (Italics added.)

While this reserves an easement, it is only reserved for water rights which at time of patent had accrued and vested, and for ditches used in connection with such water rights as had then accrued and vested. It is not reserved for anyone who may thereafter decide that he wanted to convey some water over the land. Says Kinney in Vol. II, 2d Ed., of his work on Irrigation and Water Rights, Section 933;

"It is only the right to, or the right of way for, such ditches, canals, or reservoirs as are used in connection with a vested water right that the owner of the latter can successfully claim. Therefore unless the claimant to the right of way first acquires a vested and accrued water right, he is not entitled to an easement over the public lands for his ditch, canal or other work." Nippel v. Forker, 26 Colo. 74, 56 P. 577, affirming 9 Colo. App. 106, 47 P. 766; Clear Creek, etc., Co. v. Kilkenny, 5 Wyo. 38, 36 P. 819; Hobart v. Ford, 6 Nev. 77; 40 Land Dec. 431; Noteware v. Sterns, 1 Mont. 311, 4 Mor. Min. Rep. 650; Broder v. Natoma W. & M. Co., 101 U.S. 274, 25 L.Ed. 790, affirming 50 Cal. 621; Tynon v. Despain, 22 Colo. 240, 43 P. 1039; Childs v. Sharai, 8 Idaho 378, 69 P. 111; Kinney Sec. 931.

After lands have once passed into private ownership rights of way can only be acquired in accordance with the laws of the state. Kinney Sec. 935.

An interesting sidelight is reflected; it was held by the Secretary of Interior that the right of way provisions of the Act of 1866, never applied to rights of way for power purposes. Kern River Co., 38 Land Dec. 302.

Plaintiff contends that he has an easement over the pasture by virtue of 100-1-7 U. C. A., which provides:

"Where any person desires to convey water for irrigation or any other beneficial purpose and there is a canal or ditch already constructed that can be used or enlarged to convey the required quantity of water, such person shall have the right to use or enlarge such canal or ditch already constructed, by compensating the owner of the canal or ditch to be used or enlarged for the damage caused by such use or enlargement, and by paying an equitable proportion of the maintenance of the canal or ditch jointly used or enlarged; * * *."

He takes the position that this section gives anyone desiring to convey water from one place to another the right to use any existing ditch so situate that he could avail himself of it without the consent and against the will of the owner of the land over which the ditch goes, without compensation or without as much as saying, "by your leave." Plaintiff argues, and the trial court apparently took that point of view, that since the factory and mill had an easement to conduct water through a ditch over the pasture, this statute gave anybody else the right to flow water through the ditch without permission of the owner of the pasture, and without condemnation. The argument seems to be that once an easement exists in favor of one person for the right to flow water through a ditch, the statute grants equivalent rights to any and everybody else without consent of the owner of the fee. In short, although A, the first user, must purchase or condemn an easement to flow water through a ditch over B's land, C, D, and E, are given the right to flow their water thought the ditch without either method, and without the permission of A. Such is not the law. This court held in Salt Lake City v. East Jordan Irrigation Co., 40 Utah 126, 121 P. 592, that proceedings under this section of the statute were controlled by the principles involved in eminent domain. See also Tanner v. Provo Bench Canal & Irrigation Co., 40 Utah 105, 121 P. 584; Nash v. Clark, 27 Utah 158, 75 P. 371, 1 L.R.A., N.S., 208, 101 Am. St. Rep. 953, 1 Ann. Cas. 300. Section 100-1-6, U. C. A., provides for the right of eminent domain for ditches, etc., "upon payment of just compensation therefor." In Alcorn v. Reading, 66 Utah 509, 243 P. 922, we held that in view of this section, there were no implied rights of way, or ways of necessity for the passage of water. The cases cited supra are the only ones that have been before this court involving 100-1-7. But in each of those cases, brought against the easement owner, to condemn an easement in his easement, it was recognized that such action and judgment...