Ruhnke v. Aubert

• Citation: 58 Or. 6,113 P. 38
• Parties: RUHNKE et al. v. AUBERT.
• Decision Date: 31 January 1911
• Court: Oregon Supreme Court

113 P. 38

58 Or. 6

RUHNKE et al. v. AUBERT.

Supreme Court of Oregon

January 31, 1911

Appeal from Circuit Court, Hood River County; W.L. Bradshaw, Judge.

Action by Albert Ruhnke and another against Paul Aubert. Decree for plaintiffs, and defendant appeals. Reversed.

In June, 1903, John Vauthiers was the owner of the S. 3/4 of the N.W. 1/4 of section 27, township 1 N., range 10 E., in Hood River county. Harvey C. Rush owned the N. 1/4 of the same quarter section, and the plaintiffs owned land immediately adjoining it on the north. None of this land could be farmed to advantage without irrigation. The method by which the most of the water for such purpose was obtained was by purchasing shares of stock from the Mt. Hood Water Supply Company, a corporation. The holder of a share of stock was entitled to divert from the ditch of the corporation approximately 6 2/5 inches of water for his own purposes. Vauthiers was the owner of several shares of this stock; the exact number not being disclosed by the testimony. On June 26, 1903, Vauthiers and wife executed a conveyance to plaintiff Albert Ruhnke, which reads as follows: "This indenture witnesseth: That J Vauthiers and Mary J. Vauthiers, his wife, for and in consideration of the sum of $1.00 to them in hand paid by Albert Ruhnke, the receipt whereof is hereby acknowledged have bargained, sold, and conveyed, and by these presents do bargain, sell, and convey, unto the said Albert Ruhnke, his heirs and assigns, forever, a strip of land 10 feet wide across the S.W. 1/4 of the N.W. 1/4 of section 27, township 1, North range 10 East of the Willamette meridian, for the purpose of building, constructing and maintaining an irrigation ditch; also the right to maintain a dam in the creek now upon the said S.W. 1/4 of the N.W. 1/4 of said section 27 township 1, North range 10 East of Willamette meridian, subject to the right of the grantors to put crossings over said ditch wherever they may see fit and use the water therefrom to the extent of their interest. To have and to hold the said premises and privilege unto the said Albert Ruhnke, his heirs and assigns forever. In witness whereof we have hereunto set our hands and seals this 26th day of June, 1903. J. Vauthiers. [Seal.] Mary J. Vauthiers. [Seal.]" Pursuant to this deed, plaintiffs constructed the ditch over the land in question, which, in connection with other rights of way previously purchased, gave them a continuous right of way to their own lands, and ever since then they have used the ditch for conveying water to their own land for the purposes of irrigation, and incidentally selling surplus water to an adjoining landowner. On December 21, 1903, Vauthiers and wife sold lots 5, 6, and 7 of section 27 to defendant, Aubert, and conveyed it by a warranty deed which in terms included appurtenances. In addition to this the granting clause in the deed also contains this language "Also 27 inches of water stock of the Mt. Hood Water Supply Co., five (5) inches of water, nevertheless, is hereby reserved to the said grantors from a certain spring located about the center of lot seven." The deed also conveyed a fractional share of water stock representing 2 inches of water, and it appeared from the testimony that the number "27" should have been "26 2/3." The testimony shows that Vauthiers at the time he made the sale to Aubert showed him the ditch and represented that he had a right to use it for irrigation purposes, and that the land was purchased with a view to using the water flowing through this ditch for the purpose of irrigation. The defendant used the ditch jointly with Vauthiers and plaintiffs, without objection, assisting from time to time in repairing and enlarging it, until 1906, when Vauthiers notified him in writing to cease taking water from the ditch until some arrangement should be made for the payment of the same, which notice was disregarded. In 1907 plaintiffs gave a similar notice and warning, which was disregarded, and they brought this suit to enjoin defendant from taking water from the ditch. Defendant answered, setting up his deed from Vauthiers, and claiming an easement in the ditch for the amount of water represented by the shares mentioned in Vauthiers' deed to him. The circuit court rendered a decree for plaintiffs, and defendant appeals.

Samuel W. Stark (Carlton L. Pepper, on the brief), for appellant.

E.H. Hartwig, for respondents.

McBRIDE, J. (after stating the facts as above).

The decision of this case turns upon one proposition namely: Does the reservation in the deed from Vauthiers to plaintiffs create a mere personal right in Vauthiers to take water from plaintiffs' ditch, or is the right therein reserved assignable? In other words, is the right reserved in the deed a personal privilege to the grantee, and therefore an easement in gross, or is it for the benefit of the land of the grantee and appurtenant to the land through which the right of way for an irrigation ditch is granted? "An easement is an interest in land created by grant or agreement, express or implied, which confers a right upon the owner thereof to some profit, benefit, dominion, or lawful use out of or over the estate of another." Huyck v Andrews, 113 N.Y. 81, 20 N.E. 581, 3 L.R.A. 789, 10 Am.St.Rep. 432. The right to take or divert water from the land of another constitutes an easement. Washburn on Ease (4th Ed.) 5, 13, 14, 305, 350. It is conceded by respondents that the reservation in Vauthiers' deed to them created an easement, and, indeed, in view of the authorities, no other conclusion is possible, but they contend that such servitude is only an easement in gross and personal to Vauthiers, and...