West Coast Power Co. v. Buttram, 6084

• Decision Date: 05 April 1934
• Docket Number: 6084
• Citation: 54 Idaho 318,31 P.2d 687
• Parties: WEST COAST POWER COMPANY, a Corporation, Respondent, v. R. E. BUTTRAM and THET BUTTRAM, His Wife, Appellants
• Court: Idaho Supreme Court

31 P.2d 687

54 Idaho 318

WEST COAST POWER COMPANY, a Corporation, Respondent, v. R. E. BUTTRAM and THET BUTTRAM, His Wife, Appellants

No. 6084

Supreme Court of Idaho

April 5, 1934

EASEMENTS-RIGHTS OF PARTIES.

Owner of land could not be enjoined from plowing in customary manner across pipe-line, though it might result in unintentional damage to pipe, where agreement and deed reserving pipe-line and right of way did not prohibit such plowing.

APPEAL from the District Court of the Fourth Judicial District, for Blaine County. Hon. Adam B. Barclay, Presiding Judge.

Suit for injunction. Decree for plaintiff enjoining defendants from plowing into pipe-line. Reversed and remanded with instruction to dismiss the suit.

Decree reversed and suit dismissed. Costs awarded to appellants.

A. F James, for Appellants.

In the absence of limitations imposed by contract or otherwise where one has an easement for conveying water across the lands of another, owner of servient estate has the right to use his land according to the ordinary course of husbandry including the right to graze his livestock thereon and to cultivate the land. (Pioneer Irr. Dist. v. Smith, 48 Idaho 734, 285 P. 474 (6); Coulsen v Aberdeen-Springfield Canal Co., 47 Idaho 619, at 630 277 P. 542; City of Bellevue v. Daly, 14 Idaho 545, at 549, 94 P. 1036, 125 Am. St. 179, 14 Ann. Cas. 1136, 15 L. R. A., N. S., 992.)

Oppenheim & Lampert and Leo M. Bresnahan, for Respondent.

"The servient owner retains the use of his land for all purposes except such as are inconsistent with the right granted to the dominant owner or acquired by him." (Merry v. Priest et al., 276 Mass. 592, 177 N.E. 673, on page 674.)

"No duty is imposed upon the owner of the servient tenement to do any positive act; all that is required of him is to abstain from unlawfully interfering with the easement." (9 R. C. L. 798.)

"Injunction will issue against interference by the owner of a servient tenement with the enjoyment of an easement to which it is subject." (Bina v. Bina, 213 Iowa 432, 239 N.W. 68, 78 A. L. R. 1216; 9 R. C. L. 820.)

MORGAN, J. Budge, C. J., and Givens, Holden and Wernette, JJ., concur.

OPINION

MORGAN, J.

Respondent brought this suit to enjoin appellants from plowing into, cutting, breaking, damaging, or in any way interfering with a wood stave pipe-line belonging to and in use by it, which crosses agricultural land belonging to and in use by them. The trial resulted in a decree "that the defendants and each of them, their agents, servants, employees, and all persons acting for them, and each of them, be, and they are hereby enjoined and restrained from in any manner plowing into, or, by plowing into, cutting breaking or damaging any part of the pipe line of the plaintiff extending through the lands of the defendants." This appeal is from the decree.

The record shows appellants are the owners of 1,000 acres of land near the city of Hailey; that about 300 acres of it is in cultivation and that the pipe-line of respondent, used by it in conveying water to Hailey and its inhabitants for domestic, irrigation and municipal purposes, is laid through this cultivated land a distance of about 2 1/2 miles at a depth ranging from a few inches to a foot or more below the surface of the ground; that October 20, 1932, while appellant, R. E. Buttram, was plowing in the usual manner and to a depth of 6 to 8 inches, the plow point struck the pipe and tore a hole in it, and that on a number of occasions theretofore the pipe had been struck and damaged in plowing appellants' fields. It is not shown that Buttram intentionally plowed into the pipe. L. R. Gray, local manager of respondent corporation, testified on cross-examination:

"Q. You don't accuse Mr. Buttram of maliciously tearing up the pipe line, do you?

"A. No, sir."

By deed, dated September 24, 1913, Idaho State Life Insurance Company, then owner of the land now owned by appellants and the pipe-line now owned by respondent, executed a deed whereby it conveyed to Dave G. Devine, appellants' predecessor in interest, the lands through which the pipe-line is constructed. That deed, after reserving a water right, contained the following:

"There is also hereby expressly reserved and excepted from this conveyance all those certain pipe lines and storage basins and rights of way therefor over and upon the lands above described, constructed or used in connection with the water system for supplying the City of Hailey and the inhabitants thereof with water for domestic, irrigation and municipal purposes, with right of ingress and egress by first party, its successors and assigns, for repair and maintenance of all such pipe lines and storage basins."

March 11, 1930, appellants, as parties of the first part, and respondent, as party of the second part, entered into a contract with respect to the easement reserved in that deed, in which, among other things, it was recited:

"WHEREAS, a controversy has arisen between the parties as to the interpretation of the deed in the first premise above referred to, and as to rights and easements therein defined;

"WHEREAS, the party of the second part has instituted a suit in eminent domain in the District Court of the Fourth Judicial District of the State of Idaho, in and for Blaine County against the parties of the first part, and the State of Idaho, to condemn an enlarged right of way for its underground conduits through the lands of said first parties; and

"WHEREAS, the parties have agreed to compose their differences and redefine their respective rights and to that end have entered into the following conveyances and agreements;

"NOW THEREFORE, in consideration of their mutual conveyances and assurances, the parties do hereby agree as follows:

. . . .

"RIGHT OF WAY FOR UNDERGROUND CONDUITS

"The parties of the first part grant to the party of the second part, its successors and assigns, a right of way across the following subdivisions: (Then follows a description of appellants' lands across which respondent's pipe-line is laid, and a description of the right of way, which is 10 feet wide on each side of a designated center line.)

. . . .

"With the right to erect, construct and lay therein an underground conduit or conduits with necessary gates, valves and relief boxes, in connection with said municipal water supply system; to reconstruct, repair, maintain and operate the same; with the right of ingress to and egress from said right of way for the construction, reconstruction, repair, maintenance and operation of said works, but subject to the payment of compensation to the parties of the first part, their heirs, executors, administrators and assigns for any damage caused by second party, its successors and assigns to the crops or other improvements of first parties.

. . . .

"REGULATIONS OF USE

"The party of the second part agrees, in the construction, reconstruction or repair of any of its hydraulic works on or in the lands of the first parties, to compensate said parties for any damage done to their crops or improvements; to place any underground conduit laid upon said right of way so that the top thereof shall be at least twenty inches below the surface of the ground and so as not to interfere permanently with the cultivation of said land by first parties, to remove within six months from said right of way all abandoned or unused pipe, and to refill and level off any excavation made upon said right of way, so as not to interfere with the farming operations and irrigation system of first parties."

Pursuant to said contract appellants, on April 17, 1930, deeded to respondent a right of way across their lands and in said deed recited:

"With the right to erect, construct and lay therein an underground conduit or conduits with necessary gates, valves and relief boxes, in connection with said municipal water supply system; to reconstruct, repair, maintain and operate the same; with the right of ingress to and egress from said right of way for the construction, reconstruction, repair, maintenance and operation of said works."

Since the execution of the contract about 2,000 feet of the old line has been replaced with new pipe at a depth of not less than 30 inches.

The pipe-line does not follow a straight course across appellants' land and one plowing a field crossed by it has no way of knowing, at all times, when the pipe is likely to be encountered. The testimony shows it is necessary to plow across the pipe-line in order to avoid forming a ridge which would interfere with irrigating the land.

Respondent's old pipe-line is laid at...