Wiege v. Knock, 12824

• Citation: 293 N.W.2d 146
• Decision Date: 11 June 1980
• Docket Number: No. 12824,12824
• Parties: Elmer WIEGE and Delores R. Wiege, Plaintiffs and Appellees, v. Calvin N. KNOCK and Audrey J. Knock, Defendants, Third-Party Plaintiffs and Appellants, v. Herman W. PIEBENGA and Esther C. Piebenga, Third-Party Defendants and Appellees.
• Court: Supreme Court of South Dakota

Page 146

293 N.W.2d 146

Elmer WIEGE and Delores R. Wiege, Plaintiffs and Appellees, v. Calvin N. KNOCK and Audrey J. Knock, Defendants, Third-Party Plaintiffs and Appellants, v. Herman W. PIEBENGA and Esther C. Piebenga, Third-Party

Defendants and Appellees.

No. 12824.

Supreme Court of South Dakota.

Argued March 18, 1980.

Decided June 11, 1980.

Edward C. Carpenter of Costello, Porter, Hill, Nelson, Heisterkamp & Bushnell, Rapid City, for plaintiffs and appellees.

George Beal, Rapid City, for defendants and third-party plaintiffs and appellants.

James W. Olson of Wilson, Bottum, Olson, Goodsell & Nash, Rapid City, for third-party defendants and appellees.

FOSHEIM, Justice.

This is an appeal from a judgment determining the rights and duties of the parties concerning the water from a well located on private property. We affirm in part and reverse in part.

The third-party defendants, Herman W. Piebenga and Esther C. Piebenga, purchased a tract of land south of Rapid City. On part of this property they developed a commercial campground. The tract was platted. One lot, on which a well had been dug and equipped, was sold to the Piebengas' son. In that deed, a perpetual water easement in the well was reserved to the grantors. This lot was subsequently acquired by the plaintiffs and appellees herein, Elmer Wiege and Delores R. Wiege. The defendants and appellants herein, Calvin N. Knock and Audrey J. Knock, subsequently purchased the dominant tenement land to which the easement is attached. On January 2, 1975, the Piebengas entered into a water-use agreement with the plaintiffs. On August 27, 1975, the Knocks and Wieges entered into a similar agreement including a rate schedule. In November of 1976, the defendants advised the plaintiffs that the water to their residence would be cut off unless they agreed within two weeks to pay $15.00 per month for water and certain other fees. The Wieges then sought declaratory and injunctive relief and damages. The Knocks resisted this action and sought damages and indemnity from the third-party defendants, Herman and Esther Piebenga. The trial court concluded that the Wiege property carried a permanent transferable water right and made a determination as to water allocation and rates. The trial court denied both the Wieges' claim for damages and the Knocks' claim for damages and indemnity. From the trial court's judgment, the Knocks appeal.

The basic issue assigned by appellants Calvin and Audrey Knock is whether the Wieges have a permanent transferable right to use the water from the well located on their land. The warranty deed from Piebengas to their son contained the following reservation:

(S)ubject to . . . a right in the Grantors, and their heirs, successors and assigns, to keep, repair and maintain thereon a water well, pumps, holding and pressure tanks, and such other equipment as may be necessary and required to keep, operate and maintain the same, and to draw the water therefrom, and to otherwise have a right of ingress and egress thereto.

The trial court found that the Piebengas intended by that reservation to vest permanent rights to water from the well on the lot burdened with the servitude.

In Sheffield Water Co. v. Elk Tanning Co., 225 Pa. 614, 622, 74 A. 742, 745 (1909), the Supreme Court of Pennsylvania construed a similar easement reservation in this language: "The reservation of an easement in land conveyed does not of itself import a use to the exclusion of the owner." In Homes Development Co., Inc. v. Simmons, 75 S.D. 575, 70 N.W.2d 527 (1955), after quoting statutes which have been in force since territorial days and now appear as SDCL 43-1-5, 43-4-18 and 43-25-30, ¹ we adopted the generally recognized rule that where, during unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another part, which servitude, at the time of severance, is in use and is reasonably necessary for the fair enjoyment of the other part of the estate, then upon a severance of the ownership, a grant of the right to continue such use arises by implication of law. See also : Loughman v. Couchman, 242 Iowa 885, 47 N.W.2d 152 (1951). "Similarly, where the owner of property, one part of which has been subjected to such a use for the benefit of another part, sells both parts to different purchasers, the respective portions granted are subject to or benefited by, as the case may be, an easement corresponding to such use." 25 Am.Jur.2d Easements and Licenses § 27 (1966).

It appears from the facts found by the court and supported by the evidence, that before there was a separation of title to the property, the use of the well had so long continued and was so obvious and manifest as to show that it was meant to be permanent. It follows that all of the elements essential to create an easement or servitude by implication of law upon the severance of the unity of ownership in an estate were present in this case.

Appellants contend, however, that since no documents were on record revealing plaintiffs' water rights, they should not be bound to any permanent water right easement. We are not persuaded by this argument. Notice of an easement is generally imputed to a purchaser where the easement is of such character that a purchaser acting with ordinary diligence would know or learn of its existence. Thus, where the easement is open and visible, the purchaser will be charged with notice even though the easement was created by a grant which was not then recorded. The grantee is bound where a reasonably careful inspection of the premises would disclose the existence of the easement or where the grantee has knowledge of facts sufficient to put a prudent buyer on inquiry. Gilmore v. New Beck Levee District, Harrison County, 212 N.W.2d 477 (Iowa 1973); Putnam v. Dickinson, 142 N.W.2d 111 (N.D.1966); Magnuson v. Coburn, 154 Neb. 24, 46 N.W.2d 775 (1951); 28 C.J.S. Easements § 49 (1941).

According to the evidence, appellants were aware when they purchased the campground that the Wiege house was supplied by the well, that the well was located by an easement on the Wieges' lot, and that the Piebengas had previously owned and developed all of the property served by the well. They also knew that water was a premium commodity in that area. We therefore conclude that the trial court correctly found that the Wieges have a permanent transferable water right to the use of the water from the well located on their property and that appellants are charged with notice of that right.

Appellants next contend the trial court...