Quinn v. Stone

• Decision Date: 12 May 1954
• Docket Number: No. 8024,8024
• Citation: 75 Idaho 243,270 P.2d 825
• Parties: QUINN et ux. v. STONE et al.
• Court: Idaho Supreme Court

Page 825

270 P.2d 825

75 Idaho 243

QUINN et ux. v. STONE et al.

No. 8024.

Supreme Court of Idaho.

May 12, 1954.

Rehearing Denied June 4, 1954.

Albaugh, Bloem, Barnard & Smith, Idaho Falls, for appellants.

Robert M. Kerr, Jr., Blackfoot, for respondents.

GIVENS, Justice.

Respondents own fractional Lots 4 and 5 in the northern part of the South half of Section 31, Township 4 North, Range 41 East Boise Meridian. Appellants own the land adjoining on the north in the same Section.

April 23, 1945 Sophie Thomsen, a widow and respondents' predecessor-owner, by written agreement duly acknowledged and recorded, for a valuable consideration granted appellants an easement over her lands in perpetuity and as covenants appurtenant to and running with the title, to install diversion works, pumping plant, transformer station and pumping house at a designated point in Lot 4 on a slough; the right to extend, build, maintain and operate an irrigating ditch from the pumping plant extending in a northerly direction; the right to extend another irrigating ditch from the said pumping plant in a northwesterly direction; the ditches of such width, size and capacity, including banks and borrow pits, to carry approximately 200 miner's inches of water for the irrigation of appellants' land in both Sections 30 and 31 (north and west of respondents' land); an electric power line extending from the westerly line of the grantor's land to the point of the pumping plant hereinbefore referred to; with right of free ingress and egress at all times for the purpose of maintaining and operating and repairing said power line, ditches and pumping plant.

At the time of this agreement a ditch existed or was immediately constructed from the pump site directly north towards appellants' land. While some attempt was made to use this ditch, it proved unsatisfactory as water therefrom could not be conveyed easterly on appellants' land because the slope of the land was to the west and this ditch thus never was used, but immediately discarded and the same year, 1945, a ditch northeast from the pumping plant was constructed, which is the only ditch ever actually used by appellants.

The exact date when respondents purchased their land from Mrs. Thomsen is not shown, but evidently after 1945. Mr. Spaulding, Mrs. Thomsen's son-in-law, testified he farmed a small portion of the northern part of respondents' land in 1941, the balance being rough sage brush land with cottonwoods and willows thereon and that none f respondents' land was farmed thereafter until 1950 and since the latter date it has been farmed only by Mr. James Mason, respondents Stone's renter, thus, at the time respondents Stone acquired the land and when they began to extend the leveling and cultivation thereof, appellants had in use and actual operation only the one ditch. Apparently in 1950 or 1951, Mason, in part, separately from appellants, pumped water, but carried it jointly in appellants' northeasterly ditch. The water thus augmented caused this ditch to develop sink holes, which interfered with appellants' ability to get water to flow north and west on their land. They then entered upon respondents' land and commenced to construct a ditch northwesterly from the pump, when they were summarily stopped and ousted by Mason, respondents' renter.

This suit ensued, to quiet title to a right-of-way for a ditch northwesterly from the pumping plant and to enjoin respondents from interfering with the construction and operation of such ditch.

The answer admitted the easement agreement; refusal to permit the construction of the northwesterly ditch; asserted the description of the right-of-way therefor is so indefinite and uncertain that it is incapable of location and, therefore, of no force or effect; that by the construction of the ditch which originally went north from the pumping plant, plowed under in 1945, and the construction of the northeasterly ditch, appellants have exhausted all their rights under the easement agreement, and that the construction of the northwesterly ditch as attempted by appellants would cross respondents' cultivated lands at a sharp angle, making it difficult to farm the same; and plead the bar of the statute of limitations.

The court found the easement agreement was made, and progressive findings and conclusions in the alternative; construction, but unsatisfactory use of and immediate abandonment of the first ditch straight north, which was plowed under the same year; concluding the construction of this ditch, together with the construction of the northeast ditch exhausted appellants' easement rights, thereby now confined to this one northeast ditch; and if such rights are not so exhausted, appellants, because they did not construct the northwesterly ditch until after a lapse of almost seven years, were guilty of laches and lost any further right to any such second ditch; and if they have not so exhausted or lost their rights by laches, the description in the agreement was too indefinite to grant an easement for said northwesterly ditch.

The description found to be defective as to the northwesterly ditch is as follows:

'The right to extend another irrigating ditch from the said point of the pumping plant, in a northwesterly direction, to the aforesaid East and West Half Section line of said Section 31, Township and Range aforesaid.'

The pump, the initial or starting point, was and has been definitely located since 1945.

The general, appropriate rule is thus stated:

'Where a conveyance of a right of way does not definitely fix its location, the grantee is entitled to a convenient, reasonable, and accessible way within the limits of the grant.' 28 C.J.S., Easements, § 80a, page 760.

'In describing an easement, all that is required is a description which identifies the land which is the subject of the easement, and expresses the intention of the parties. Here the defendant's land is the subject of the easement and it has been described with particularity. In Lidgerding v. Zignego, supra [77 Minn. 421, 80 N.W. 360], this court held a description sufficient which indicated a right of way 'upon or near' the line of defendant's property. In Callan v. Hause, 91 Minn. 270, 97 N.W. 973, 1 Ann.Cas. 680, and note, the rules governing the location of easements where the description is indefinite are stated. In such a case the grantor has the right in the first instance to designate and locate the roadway, and, if reasonably suitable for the purpose, a selection of a place cannot be questioned. If the grantor omits to exercise this right, the grantee may make the selection and his selection will be upheld unless he has abused the right. (Cases.) In Grafton v. Moir, 130 N.Y. 465, at page 471, 29 N.E. 974, 976, 27 Am.St.Rep. 533, Judge Vann, speaking for the court, said: 'When the right of way is not bounded in the grant, the law bounds it by the line of reasonable enjoyment.' This means that the easement must be a convenient and suitable way and must not unreasonably interfere with the rights of the owner of the servient estate. See Kretz v. Fireproof Storage Co., 127 Minn. 304, 312, 149 N.W. 648, 955. * * *' Ingelson v. Olson, 199 Minn. 422, 272 N.W. 270, 274, 110 A.L.R. 167, at pages 170-171;

17 Am.Jur. 987, § 86.

The above thought is further expressed, elucidated and recognized in Parker v. Swett, 40 Cal.App. 68, 180 P. 351, 352, and Id., 188 Cal. 474, 205 P. 1065.

'It is true that the route of the pipe line is not definitely described in the deed, but it has been held that in such a case a reasonable route is intended, and title may be quieted to such reasonable route. (Cases.)

'It is proper and customary under such circumstances, in view of the general equitable jurisdiction to do full and complete justice in one action, for the court to designate for the parties just what would be a reasonable route under all the circumstances in evidence. (Cases.)' Parker v. Swett, supra, 180 P. at page 352.

E. M. Christensen, a civil engineer who had made other surveys on these lands, testified as to the ability to locate and construct a ditch from the description in the easement:

'Q. * * * Now, Mr. Christensen, with those descriptions in mind, could you, as an engineer, go out there on the ground, and from what appears there, establish those ditches, or that ditch? A. Well, that northwesterly direction, ordinarily when they--when the description is made that way you usually count it north forty-five degrees west, or somewheres close to there.

'Q. And with regard to the size of the ditch, does that have any definite meaning to you, in your experience---- A. Yes.

'Q. -- as an engineer? A. The first thing I would have to do is run a profile line, to find out what fall the ditch would have; and then from that profile, or those notes, then I could figure what size ditch capacity it would take in order to carry two hundred inches of water.

'Q. And could you do that on the ground? A. Yes.'

His cross examination did not negative the above:

'Q. Mr. Christensen, you feel that you could take that description and establish a suitable--Do you feel, Mr. Christensen, that you could take that instrument, the easement, and establish a suitable ditch, a reasonably suitable ditch for that purpose, on the ground? A. Well, having been on that farm, and knowing the location, and that, I would follow somewheres near the north forty-five degrees west as I could; but I would also, unless there was some objection from the land owner, try to make as economical a ditch as possible, and not try to hit ridges or, at least, make as direct a route but avoid holes and swales, and things like that.

'Q. Yeah. A. In other words, make it a practical ditch, instead of a theoretical ditch.

'Q. Well, that's what I am asking you, if you could establish a reasonably practical and suitable ditch, from what appears in that instrument? A. I would say so, yes.'

R. T. Michener, likewise an engineer, thus...