Wood v. Woodcock

• Decision Date: 03 September 1976
• Citation: 554 P.2d 151,276 Or. 49
• Parties: John R. WOOD, Respondent, v. Lyle E. WOODCOCK, Appellant.
• Court: Oregon Supreme Court

Page 151

554 P.2d 151

276 Or. 49

John R. WOOD, Respondent, v. Lyle E. WOODCOCK, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted April 29, 1976.

Decided Sept. 3, 1976.

Patrick G. Huycke, Medford, argued the cause for appellant. With him on the briefs were Van Dyke, DuBay, Robertson & Hilts, P.C., Medford.

Oscar R. Nealy, Grants Pass, argued the cause for respondent. On the brief were Donald H. Coulter and Myrick, Coulter, Seagraves & Nealy, Grants Pass.

BRYSON, Justice.

Plaintiff brought this suit to enjoin defendant, an adjoining landowner, from interfering with 'spring and seepage' water on which plaintiff claimed priority pursuant to a water permit issued by the state engineer. Defendant filed a general denial and a counterclaim for trespass and to establish a prescriptive easement over plaintiff's land.

The trial court entered a decree as follows:

'1. The defendant is hereby permanently and forever enjoined from entering on to the plaintiff's property other than along the easement right of way of the Watts Topping Ditch, and is forever and permanently enjoined from using the Wilson Box located on the plaintiff's property to divert and convey water therefrom across the plaintiff's property to the property of the defendant;

'2. That defendant is permanently and forever enjoined from interfering in any manner with the plaintiff's use and enjoyment of the spring and seepage water on the plaintiff's property around the Wilson Box and immediately northeasterly of the Watts Topping Ditch while said ditch transverses the plaintiff's property; * * *

'* * *.'

and also entered judgment against plaintiff on defendant's counterclaim for trespass in the sum of $500. The defendant appeals.

Watts-Topping Ditch Company owns the ditch which diverts water from Williams Creek for irrigation of land in this area.

The drawing below illustrates the area in controversy:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Plaintiff and defendant are members of the ditch company and are entitled to use designated amounts of water from the ditch for irrigation. For a number of years water had been accumulating on the northeast corner of plaintiff's property where a pond is presently situated. Several witnesses described this area as being a swamp or marsh. The evidence shows that the accumulation is largely the result of natural seepage, drainage and 'waste' water from the Watts-Topping Ditch in the area of the Wilson (diversion) Box.

The ditch terminates on defendant's property and, being 'tail-end-Charlie,' defendant is entitled to impound and use the water not previously appropriated from the ditch by prior authorized users.

Water released from the Wilson Box flows naturally in a general northeasterly direction for some 20 feet over plaintiff's land and then onto defendant's property, down through a wash, under John Flower's Lane and into a ditch from which defendant can irrigate. This water also flows naturally and easterly along John Flower's Lane and back onto plaintiff's land where plaintiff constructed a pond to capture it.

In September 1969 plaintiff filed an application for 'spring and seepage' water and received a water permit from the state engineer to appropriate such water to irrigate 10 acres. This is the water which had been accumulating on the northeast corner of plaintiff's property. Shortly thereafter plaintiff cleared the area, built a pond to accumulate the seepage water and installed equipment to pump the water out of the pond and onto his land.

During the same year defendant repaired an existing culvert under John Flower's Lane and installed a steel pipe to channel the water flowing down the hill from the Wilson Box area into an irrigation ditch for his use. During the summer of 1972 plaintiff, believing that defendant was misappropriating plaintiff's water, entered onto defendant's land and dug a small ditch by hand to divert the water away from defendant's steel pipe and down to plaintiff's pond. Later, in the early part of 1973, defendant widened John Flower's Lane near the steel pipe and filled plaintiff's hand dug ditch with gravel.

Plaintiff then commenced this suit and obtained a temporary restraining order against defendant. After the restraining order had been granted, plaintiff again entered onto defendant's land with a back hoe, blocked defendant's steel pipe and dug a ditch over defendant's land to draw the disputed water down to his pond.

Defendant contends that the trial court 'erred in failing to determine that the defendant had established a prescriptive easement across plaintiff's land (from the Wilson Box to defendant's property--see drawing) for the transportation of water.'

One of plaintiff's predecessors in title, Clifford E. Wilson, and his father built the 'Wilson Box' to divert water for irrigating their land situated east and west of Watergap Road. He testified:

'Q There has been testimony that there is presently a concrete structure around the box itself, meaning to compose the box and for the boards to fit in. Do you know how long that's been the case?

'A Not exactly, but I think it was put in in the early fifties.

'Q Can you tell us who built that box as it now exists?

'A I built the box, along with help with some neighbors that was working together.

'* * *.

'Q Was the Defendant, Mr. Woodcock, involved in any way in the structure or building of that box?

'A No sir.

'Q Was his father involved in any way in building that box?

'A No.

'* * *.

'Q Up until 1970 or 1971, as you are stating the date to be, when you no longer used the Wilson box, during the years prior to that did Mr. Woodcock use your box to irrigate the field adjacent to Watergap Road?

'A He did some, and before the cement box was put in he used it some.

'Q How about after the cement box was put in?

'A There was for a period of time there that he didn't use it at all.

'* * *

'Q Did you at any meetings of the Watts-Topping Ditch give or delegate to Mr. Woodcock your right to that box on Watts-Topping ditch?

'A Not the box. I gave him the right to my water that was in the ditch when I wasn't using it. * * *.

'* * *

'Q Did Mr. Woodcock ask you if he could use that box to irrigate his lower field adjacent to Watergap Road at any time?

'A I don't remember if it was ever discussed.

'* * *.

'Q I see. Now isn't it a fact, though, that the box has been used by Lyle Woodcock since about 1962 during the summer months and during the irrigation season?

'A Part of the time.

'Q By part of the time you mean during part of the summer months, not during the early part?

'A Not every year.'

Watts-Topping Ditch terminates in defendant's pond near his house which is some distance from the nine acres of defendant situated in the southeast corner of his property adjoining plaintiff's property. It is this nine acres that defendant desires to irrigate by opening the Wilson Box and allowing water to flow across plaintiff's land down to the acreage. The evidence shows that defendant could irrigate these nine acres from one of two ponds (other than plaintiff's pond as shown on the preceding diagram) located on his property although it is more expensive and requires running pipe a further distance.

The evidence also shows that another neighbor, Wallace Palmer, as well as Clifford E. Wilson, has permissively diverted water over plaintiff's land. Nevertheless, defendant contends he has a right to use the Wilson Box and a prescriptive right from the Wilson Box over plaintiff's land to his nine acres.

Easements by prescription are not favored by the law, 2 Thompson, Real Property § 335, at 154 (1961). Courts have held that uses of unenclosed or unemployed lands tend to be permissive in nature and that the claimant must affirmatively prove the adverse character of his behavior in such instances. 3 Powell, The Law of Real Property 413, at 481--84 (1975); Annot., 170 A.L.R. 776, 820--23.

In 2 Thompson, Supra at 154, the author states that the modern tendency is to restrict the acquisition of rights of way by prescription which were granted as a neighborly act or out of courtesy. See also Thompson v. Scott, 270 Or. 542, 551, 528 P.2d 509 (1974).

The evidence does not support defendant's allegation that he has 'continuously and adversely' used plaintiff's land for the required purpose 'for more than ten years last past.' The evidence adduced by defendant to establish his prescriptive claim to use plaintiff's land was sparse and ambiguous.

'Something more than this must be required before an owner's property interest is forfeited and transferred to another whose claim rests solely on the use of the owner's property.' Thompson v. Scott, supra at 552, 528 P.2d at 513.

We concluded from the facts of this case that defendant did not acquire a prescriptive easement over plaintiff's land.

Defendant next contends that the court 'erred in granting an injunction which in effect bars the defendant from using the Wilson box in any manner whatsoever and in determining that defendant's right to use the Wilson box terminated when the prior user and owner of the box transferred his point of diversion to another ditch.' In this connection defendant also contends that the court erred in determining that the water used by plaintiff for his pond was abandoned waste rather than water intentionally diverted by the defendant for irrigation purposes.

The trial court's decree previously set forth provides that defendant is 'permanently enjoined from using the Wilson Box located on the plaintiff's property to divert and convey water therefrom across the plaintiff's property * * *.' We do not interpret this to mean that the defendant cannot maintain the Wilson Box to improve his rightful flow of water in the Watts-Topping Ditch to his pond. The trial court concluded, and we reach the same conclusion, that defendant may not use the Wilson Box for the purpose of diverting water across plaintiff's land.

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