Rogers v. Cation, 27908.

• Citation: 9 Wn.2d 369,115 P.2d 702
• Decision Date: 12 July 1941
• Docket Number: 27908.
• Parties: ROGERS et al. v. CATION et al.
• Court: United States State Supreme Court of Washington

115 P.2d 702

9 Wn.2d 369

ROGERS et al. v. CATION et al.

No. 27908.

Supreme Court of Washington

July 12, 1941

Department 2.

Action by Mary Fowler Rogers and V. H. Rogers, her husband, against Everell L. Cation and Ethel M. Cation, his wife, and Olive Ella Cornwell, a single woman, to quiet title to an easement to use, on plaintiffs' own land, the waters of a spring arising on premises of the defendants, and to enjoin defendants from interfering with such easement. From a decree in favor of plaintiff, Everell L. Cation and Olive Ella Cornwell appeal. Pursuant to stipulation the action has been abated as to V. H. Rogers.

Decree reversed, with direction to dismiss the action.

STEINERT J., dissenting.

Appeal from Superior Court, Walla Walla County George W. Thompson, Judge pro tem.

Lehrer & Marquis and Herbert Ringhoffer, all of Walla Walla, for appellants.

Cameron Sherwood, of Walla Walla, for respondent.

DRIVER Justice.

Plaintiffs brought this action to quiet title to an easement to use, on their own land, the waters of a spring arising on the premises of the defendants and to enjoin the latter from interfering with such easement. A trial to the court resulted in a decree in favor of the plaintiffs, and the defendants Everell L. Cation and Olive Ella Cornwell appealed. Pursuant to a stipulation of the parties, the action has been abated as to respondent V. H. Rogers, and Mary Fowler Rogers is now the only respondent.

A shallow valley runs from east to west across the farm lands involved in the controversy. Appellants own the upper easterly tract, and respondent the adjoining lower westerly one. A small creek, fed by numerous springs arising in marshy ground on the westerly portion of appellants' premises runs down through the valley and across the land of the respondent. Above the springs, the creek is dry except in the flood season, but below them it maintains a continuous flow. The water which is the subject of the present action comes from one of the springs on appellants' land several hundred feet up the valley from the common north and south boundary line.

At the time the suit was started in July, 1938, respondent was using the water for domestic and live stock purposes in two dwelling houses and a barnyard watering trough situated just below the boundary line and north of the creek. A pipe line brought the water from the spring by gravity flow and under pressure to the place of use.

All the land was at one time under the common ownership of J. M. Cornwell, who acquired it prior to the year 1875. He died intestate in 1899, and, by agreement of his heirs, it was allocated to his son, A. G. Cornwell, and his daughter, Laura F. Robinson, as tenants in common. When his estate was finally settled in 1902, the land was divided, the son taking the lower (respondent's) tract and the daughter the upper (appellants'). Laura Robinson held hers until her death in 1934. It then passed, by inheritance through an intermediate intestate, to Forrest Cation and appellant Everell L. Cation. In April, 1938, the other appellant, Olive Cornwell, acquired, by purchase, the undivided one-half interest of Forrest Cation. The other, or lower, tract remained in the ownership of A. G. Cornwell from 1902 until he died intestate in 1927, when it descended to his widow, Carrie E. Cornwell. She died in 1931, and the following year her administrator sold it to Oliver T. Cornwell, who was then respondent's husband. Respondent acquired full title upon his death in 1935.

The testimony is sharply in conflict as to when the use of the water began. It was first taken from a natural spring seventy or eighty feet inside the upper tract, and was carried through a flume to a wooden watering trough a short distance below the boundary line. Some time later, water from the same spring was piped to a small dwelling house on the lower tract. When this was done does not appear, but probably it was not long after the division of the property in 1902. In 1917, A. G. Cornwell razed the dwelling and built a new one in the same location. The new house utilized the identical water system which had served the old one. Another small dwelling house, which had been moved in from a nearby farm, also was attached to the same pipe line. It then became apparent that the water pressure was insufficient, and A. G. Cornwell and his son Elmer, who had established residence in the new house upon its completion early in 1918, decided that they would undertake to develop a more adequate source of supply. How this was accomplished appears from the following testimony of Elmer Cornwell:

'A. I was quite anxious to have a water supply and I talked with my father and we decided to talk with Mrs. [Laura] Robinson. He and I went to her place here in town and I asked her if it would be all right,-- * * *

'Q. Go ahead? A. I told her the conditions and what trouble we had with the water and asked her if it would be all right to use this spring in the pasture,--if we were granted that courtesy and she said yes, it would be all right to put the spring there. * * *

'Q. Now tell what you did about that new spring? A. I got that tile and took it up there and found a good place to put the spring,--the tile drained from this marshy ground into the creek, I did not know the best place to put the tile.

Q. When you refer to putting the tile in the ground, that is the big concrete pipe? A. Yes, the one I put in and then there was some small tile for drainage. I started at the end of this small tile and dug a ditch along until I found where the two inch tile began. I figured I would get more water that way. Then I concreted it in for the water supply. And my father located some second hand pipe, I think it was about two inch pipe, and we took it out to the ranch. I think they sent a wagon in town for it. Then I dug a ditch from this spring down to the square concrete spring.

'Q. That was what direction from the spring we have talked about? A. That was west toward the buildings.

'Q. Between the new spring and what? A. And the old one.

'Q. And the A. G. Cornwell buildings? A. Yes, sir.

'Q. You dug a ditch through there? A. Yes, and disconnected the lower spring and then we took our water supply from the artificial spring.

'Q. What did you do about piping from the new spring? A. We disconnected the old spring and connected up with the pipe from the new spring and used it from there down.

'Q. That was in 1919? A. Yes, sir.

'Q. The flow of water was then from where? A. From the upper spring.

'Q. Was the lower spring used then? A. No, never to my knowledge since then. * * *'

From the time the land was divided in 1902, A. G. Cornwell, the owner of the lower land where the water was used, rented the upper tract, which was its source, from its owner, Laura Robinson, and this relationship of tenant and landlord existed without interruption until his death in 1927. After A. G. Cornwell died, his widow continued to rent the Laura Robinson land, but for just how long the record does not show. However, in 1932 and 1933, when the title to the lower tract was in Oliver T. Cornwell, he also rented the upper tract from Mrs. Robinson.

The trial court's decree was based upon the conclusion expressed in its memorandum opinion, that an easement had been created by prescription. The burden was upon the respondent to establish an adverse possession for an uninterrupted period of at least ten years. Skansi v. Novak, 84 Wash. 39, 146 P. 160; People's Savings Bank v. Bufford, 90 Wash. 204, 155 P. 1068; Downie v. Renton, 167 Wash. 374, 9 P.2d 372.

Ordinarily, a tenant can not adversely hold the real property of his landlord for the purpose of acquiring title by prescription. This elementary principle is succinctly stated in 4 Tiffany, Real Property, 3rd Ed., 508, § 1178, as follows: 'Possession for the statutory period by the tenant under a lease is, it is agreed, not ordinarily sufficient to confer title upon him as against his landlord. The tenant's possession, taken under the lease, involves a recognition of the landlord's title in reversion, and is consequently not adverse or hostile to the latter.'

A similar statement may be found in 1 Am.Jur. 807, § 32. Also to the same effect are Doherty v. Matsell, 119 N.Y. 646, 23 N.E. 994; Lyebrook v. Hall, 73 Miss. 509, 19 So. 348; Carson v. Broady, 56 Neb. 648, 77 N.W. 80, 71 Am.St.Rep. 691.

In the case at bar, the successive owners of the lower tract, which the trial court considered the dominant tenement, were the tenants of Mrs. Robinson, the owner of the upper, servient tract, continuously from 1902 until after 1927, and during the years 1932 and 1933. Consequently, there was no uninterrupted ten-year period during which an adverse possession and use could ripen into title by prescription.

It is not necessary for us to state or consider under what exceptional circumstances a tenant may acquire title by adverse possession against his landlord, because there was no proof of such circumstances in the present case.

The respondent advances, as an additional reason why the trial court's decree should be affirmed, the contention that, upon the division of the I. M. Cornwell land, an easement by implication arose.

In Bailey v. Hennessey, 112 Wash. 45, 191 P. 863, 864 this court stated how easements by implied grant may be created as follows: 'Easements by implication arise where property has been held in a unified title, and during, such time an open and...