Vahlsing v. Harrell, 12827.

• Decision Date: 24 January 1950
• Docket Number: No. 12827.,12827.
• Citation: 178 F.2d 622
• Parties: VAHLSING v. HARRELL.
• Court: U.S. Court of Appeals — Fifth Circuit

178 F.2d 622 (1949)

VAHLSING v. HARRELL.

No. 12827.

United States Court of Appeals Fifth Circuit.

December 21, 1949.

Rehearing Denied January 24, 1950.

Ronald Smallwood, San Antonio, Tex., for appellant.

Orrin W. Johnson, Harlingen, Tex., for appellee.

Before HUTCHESON, WALLER, and RUSSELL, Circuit Judges.

HUTCHESON, Circuit Judge.

The suit was for a judgment declaring that plaintiff had a right to have and maintain a suction pipe under, and to draw water therewith for irrigation from a drainage ditch on, defendant's land.

The claim was: (1) that the drainage ditch was on defendant's land under a valid easement granted the LaFeria Water Control and Improvement District, Cameron County No. 3, hereafter called "The District" by plaintiff's predecessor in title; (2) that the drainage easement, included the right to construct, have, and maintain suction pipes across such easement and into said ditch for the removal therefrom of water for irrigation therefrom; and (3) that The District, having the right to permit appellant to maintain its suction pipe across the easement and into the drainage ditch, had given plaintiff permission to do so.

The defendant denied these claims and, in its turn, sought a judgment declaring: (1) that the District did not have, and, therefore, could not grant to plaintiff the right to construct, have, or maintain the disputed suction pipe without defendant's consent; (2) that defendant was a bona fide purchaser, without notice of plaintiff's alleged rights, and was not bound by them; and (3) that plaintiff was estopped to deny defendant's title to the land in question because plaintiff had in two leasing agreements upon valuable consideration recognized defendant's superior title to such portion of land and the right to grant or withhold from plaintiff the right to maintain the suction pipe.

A jury having been demanded and allowed, the case proceeded to trial and the taking of evidence,¹ consisting mainly of agreed facts, concluded, both plaintiff and defendant moved for a directed verdict.

Plaintiff's motion was based on the ground that the existence of the claimed easement and defendant's knowledge of it were established as matter of law, and a verdict for plaintiff on both issues was demanded.

The defendant's grounds were: (1) that, as matter of law, the evidence wholly failed to establish the existence of the easement claimed by plaintiff; and (2) that if such an easement existed and, though it was not recorded, defendant was put upon inquiry as to it, he had made all the inquiry required of a reasonably prudent person and was a bona fide purchaser without knowledge of it.

The district judge, reserving the motions for later determination, submitted to the jury one question for their answer: "Do you find from a preponderance of the evidence that the defendants did not make such inquiry as to the permissive use, if any, of the plaintiff Vahlsing of the drain ditch upon and the pipe under the land in question as an ordinarily prudent person would make under the same or similar circumstances before they, the Harrells, purchased the land in 1944"? and the jury answered it: "They did make such inquiry." Whereupon the district judge entered a judgment which, reciting that he had reserved for later determination the legal questions raised by the motions for directed verdicts, setting out the verdict of the jury, and declaring that he was of the opinion that the defendant is entitled to the relief he demands, declared, adjudicated, and decreed that plaintiff "is without the right, with or without the permission of the La Feria Water Control and Improvement District, Cameron County #3, to construct, have, or maintain a suction pipe under or across the land in question, belonging to defendant, for the purpose of obtaining water from the drainage ditch or to other purposes, unless the plaintiff first lawfully obtains, and has, the consent of the defendant to so construct, have, or maintain such pipe upon said land".

Appellant, urging upon us that the...