Talbot v. Joseph

• Decision Date: 15 February 1916
• Citation: 79 Or. 308,155 P. 184
• Parties: TALBOT v. JOSEPH ET AL.
• Court: Oregon Supreme Court

155 P. 184

79 Or. 308

TALBOT v. JOSEPH ET AL.

Supreme Court of Oregon

February 15, 1916

Department 1.

Appeal from Circuit Court, Multnomah County; J. P. Kavanaugh, Judge.

Action by Guy W. Talbot against George W. Joseph and another. From a decree for defendants dismissing the suit, plaintiff appeals. Modified and affirmed.

This is a suit to abate and compel the removal of a "V" flume which the defendants maintain upon the land of the plaintiff.

W. W. Cotton and H. W. Strong, both of Portland (John A Laing, of Portland, on the brief), for appellant. B. E. Haney and Barnett H. Goldstein, both of Portland (Joseph & Haney of Portland, on the brief), for respondents.

BURNETT J.

According to the report of the testimony there is but little dispute about the facts. The controversy hinges on the construction to be given to a deed from the common grantor of the parties under which the defendants claim. In 1893 J. C. Latourell was the owner of 160 acres of land in Multnomah county, through which flows Latourell Falls creek. This stream is nonnavigable, and perhaps but little more than a mile in length. It flows northerly through the lands of plaintiff into the Columbia river. In its course it falls 240 feet over a precipice on his premises, and at that point is visible from steamers plying on the Columbia river and from trains passing on a nearby railway. The waterfall thus formed is far-famed as an object of great natural beauty. In 1893 Latourell sold a portion of his tract to one Maffet, who in turn deeded the same premises to the present defendant Maffet. By apt metes and bounds the deed conveys a designated part of the land, and then continues in these words:

"Also enough water from the natural flow of Latourell Falls creek to be taken above the large falls, to fill and maintain a continual flow through a four-inch pipe, at all seasons of the year. Also ten feet square of ground above the Latourell Falls upon which to build a tank to feed said pipe and a strip of ground ten feet wide from where said creek is tapped to said tank and from said tank to where said pipe line leaves the lands of J. C. Latourell, and the right to enter upon adjacent lands at all times to erect, maintain repair and operate said pipe, flume or aqueduct and tank or reservoir."

By mesne conveyances the plaintiff became owner of the remainder of the original tract on June 21, 1911. It is to be determined how the excerpt above set out affects the plaintiff's holding. In purchasing, he relied upon an abstract of title and not upon a search of the records. In the abstract no mention was made of the deed to Maffet. The plaintiff declares that he had no actual notice whatever of the quoted portion of that deed. The defendant Maffet conveyed to the defendant Joseph an undivided half interest in the privilege conferred by the quoted clause of the Latourell deed, all prior to the time the plaintiff acquired title to his tract. The defendant Joseph does not own nor claim any interest in the premises described by metes and bounds in that deed. After the plaintiff acquired title the defendants, without his knowledge, went upon his land and constructed a flume from a point about 1,200 feet south of and above the falls and thence running substantially parallel to the stream northerly about 900 feet, where it leaves the lands of the plaintiff, turns on a northeasterly course, and afterwards crosses a corner of his premises. The flume is constructed of boards nailed together at right angles in a V-shape, one side being 22 inches and the other 24 inches in width. It is erected upon trestlework and is of sufficient capacity to contain all the water of the stream at its ordinary stage. The defendants claim the right not only to divert the quantity of water mentioned in the Latourell deed, but also to appropriate 2 1/2 second feet by virtue of an application to the state board of control.

The plaintiff contends that in any event the right conferred by the Latourell deed is an easement appurtenant to the land described in that instrument, and is inseparable therefrom, so that it could not be transferred to Joseph except together with an estate in the land itself. The authorities cited by the plaintiff in support of his claim on this point relate to ways appurtenant to land access to which could not be enjoyed without the right of passage. A somewhat different rule applies to an easement for the diversion of water. By virtue of a classification too general in its terms and which unduly restricts the use of water as practiced in the Western states, some authors make every easement necessarily dependent upon the ownership of a dominant estate in lands. That a right to divert water upon the lands of another, although an easement in a certain sense, can be classed as a separate estate and is not unavoidably appurtenant to other lands is taught by Goodrich v. Burbank, 12 Allen (Mass.) 459, 90 Am. Dec. 161, Poull v. Mockley, 33 Wis. 482, Columbia W. P. Co. v. Columbia Elec., etc., Co., 43 S.C. 154, 20 S.E. 1002, and De Witt v. Harvey, 4 Gray (Mass.) 486. Such a right may well enough be said to fall within that category within the meaning of Jackson v. Trullinger, 9 Or. 393, where Mr. Chief Justice Lord says that:

"An easement is defined to be the right which one man has to use the land of another for a specific purpose."

In Ruhnke v. Aubert, 58 Or. 6, 10, 113 P. 38, 40, Mr. Justice McBride explicitly states that:

"The right to take or divert water from the land of another constitutes an easement."

In that particular instance the water was to be used to irrigate a certain tract of land to which it was indeed appurtenant under the doctrine of that case, but it was not intended to say that in every instance water taken out upon the land of one person should necessarily become inseparably annexed to another parcel of realty. If it were the hard and fast rule that an easement for the diversion of water must indispensably be made appurtenant to some dominant estate, it would utterly defeat all projects for appropriation of water for sale and general distribution to the public, for often such appropriators do not own land themselves, but are only purveyors of water to those who do have real property. We hold, therefore, that the defendant Joseph is the owner of an undivided half of the water right conferred upon Maffet by the Latourell deed, and cannot be prevented from the proper enjoyment thereof.

The plaintiff attacks the grant asserting that it is void for uncertainty. In construing the clause establishing the privilege we are entitled to take the whole instrument of which it is a part. The stream and the fall are natural objects upon the premises owned by the grantor at the time. The deed states that the lands are in Multnomah county, state of Oregon. The part indicated by metes and bounds is referable in its description to government surveys. It is said that the water is to be taken from the natural flow of the creek above the large fall. So far as location of the point of diversion is concerned and the water to be taken, there is enough in the deed for identification by the aid of parol testimony. For instance, in Bogard v. Barhan, 52 Or. 121, 96 P. 673, 132 Am. St. Rep. 676, it was held sufficient to allude to "the 15-acre farm located one mile north of Woodburn, Marion county, Or.," and the "5-acre residence property lying west of the Catholic church," and that these designations might be aided by parol giving the correct metes and bounds. It is true that the case was reversed because the metes and bounds given in the amended complaint would not close, thus rendering the pleading amenable to demurrer. In House v. Jackson, 24 Or. 89, 32 P. 1027, we have approved the rule that:

"Any description by which the property might be identified by a competent surveyor, with reasonable certainty, either with or without extrinsic evidence, is sufficient."

There the written agreement for the sale of lands referred to them as situated on "Sauvies Island," and known as the "Jackson Ranch," and more particularly described...