West Coast Power Co. v. Buttram, 6084

• Court: United States State Supreme Court of Idaho
• Writing for the Court: MORGAN, J.
• 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
• Docket Number: 6084
• Decision Date: 05 April 1934

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

[54 Idaho 319] 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, [54 Idaho 320] 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 [54 Idaho 321] 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; [31 P.2d 688]

"NOW THEREFORE, in consideration...