83 P. 742 | Utah | 1906
Lead Opinion
after stating the facts, delivered the opinion of the court.
The appellant insists, among other things, that the court erred in permitting the introduction of evidence respecting the conversations between the vendor and the vendee and admissions of the vendor had and made, at the time the bargain of sale was made and when the deed was executed, concerning the drain ditch, and use of the water flowing therein, because, as is urged, such evidence was inadmissible as varying the terms of a written conveyance. This objection to the admission of the testimony referred to is, under the circumstances, not well founded. We recognize the general rule, declared by many of the authorities cited by the appellants, that, where contracting parties have reduced their agreement to writing, the terms expressed cannot be varied by parol; the writing itself being the evidence of the agreement. The testimony covered by the objection in this case, however, was introduced for no such purpose. It was introduced, not to vary the terms of the deed, but to explain a latent ambiguity, and to show what was in the minds of the contracting parties — what was intended should pass under the terms “privileges and appurtenances” employed in the instrument. The testimony was not only admissible for such purpose, but as evidence of the condition of the property when the bargain of sale was made, and to show how the parties themselves construed and applied
When, therefore, tbe appellants claim that tbe right to tbe use of tbe water from one ditch is not embraced in those terms, and at tbe same time admit that such a right in another ditch is embraced in them, both ditches being upon tbe same land and equally obvious to tbe parties while making tbe contract of sale, and neither one of tbe ditches being mentioned specifically in tbe conveyance, they themselves attach one meaning to tbe terms in tbe one instance and a different meaning to them in tbe other, and thereby admit that the terms as employed are susceptible of different meanings, and hence that there exists a latent ambiguity. Such being the case, how, or by what means, is the court to interpret those terms ? How is it to ascertain what was in the minds of the contracting parties at the time of the sale — what things they intended to include in the conveyance by the use of the terms in question ? The instrument itself affords no means whereby to ascertain the meaning of the parties; no specific reference to any ditch or water right being contained therein. Clearly, therefore, evidence dehors the instrument was not only admissible, but necessary to place the court in-the light of the surrounding circumstances existing at the time of the transaction, so as to enable it to perceive what was in fact included in the general terms employed in the writing. Whenever the
“In the light of what was said and done at the time of a transaction, of the conduct of the parties thereafter, and of the interpretation which they themselves have placed upon it, a court is more likely to arrive at the real meaning and intent of the parties when the terms employed in an instrument are indefinite or ambiguous. Such evidence is not received to vary the language of the writing, hut to explain what was meant by its use. It serves to explain the subject-matter, and enables the court to determine what the instrument referred to and embraced. Its object is to elucidate the meaning of the parties.” (Brown v. Markland, 16 Utah 360, 52 Pac. 597, 67 Am. St. Rep. 629.)
In Wood’s Practice Evidence, section 25, the author says:
“The rule that parol evidence is admissible to explain and apply a writing, where it does not contradict or vary it, is universal in its application, and is in accordance with another rule which is well recognized, that a writing may be read in the light of surrounding circumstances in order that the true intent and meaning of the parties may be arrived at, and that independent and collateral facts, about which the contract is silent, may be shown by parol. The surrounding circumstances, and subsequent conduct and acts of the parties, are material and competent to show the interpretation which they put on an agreement, and what conditions they have waived. It is allowable also, in many instances, to show in evidence pre-existing and contemporaneous facts and circumstances attending the negotiations of the parties in making the contract as such facts often throw light upon the disputed contract itself.”
And in section 26 he says:
“Parol evidence may be admitted to prove a collateral agreement connected with stipulations in a deed, and in no respect repugnant to it.”
“It may be laid down as a broad and distinct rule of law that extrinsic evidence of every material fact, -which will enable the court to ascertain the nature and qualities of the subject-matter of the instrument, or in other words, to identify the persons and things to which the instrument refers, must of necessity be received. Whatever the nature of the document under review, the object is to discover the intention of the writer as evidenced by the words he has used; and, in order to do this, the judge must put himself in the writer’s place, and then see how the terms of the instrument affect the property or subject-matter.”
In Browne, Par. Ev. section 54, speaking of written contracts, tbe author says:
“The conversations and acts of the parties, at and about the time of the making of the contract, as well as subsequent to the making of the contract, are admissible in evidence to show what sense the parties attached to any term or phrase used in the contract, which is in itself susceptible of more than one interpretation, or which, viewed in the light of the evidence explanatory of the subject-matter, the relations of the parties, and the circumstances, may reasonably be susceptible of more than one interpretation.”
In Ganson v. Madigan, 15 Wis. 158, 82 Am. Dec. 659, Mr. Chief Justice Dixon, speaking of written contracts, said:
“If evidence of surrounding facts and circumstances is admitted to explain the sense in which the words were used, certainly proof of the declarations of the parties, made at the time of their understanding of them, ought not to be excluded. And so it was held in several of the cases above cited. 2 C., M. & R. 422; [Emery v. Webster] 42 Me. 204 [66 Am. Dec. 274; Waterman v. Johnson], 13 Pick. 261. Such declarations, if satisfactorily established, would seem to be stronger and more conclusive evidence of the intention of the parties than proof of facts and circumstances, since they come more nearly to direct evidence than any to be obtained, whilst the other is but circumstantial.”
So in Shore v. Wilson, 9 Clark &F. 566, Lord Chief Justice Tindal, after stating the general rule applicable to written instruments, said:
“The true interpretation, however, of every instrument being manifestly that which will make the instrument speak the intention of the party at the time it was made, it has always been considered as an ex*168 ception, or, perhaps to speak more precisely, not so much an exception from, as a corollary to, the general rule above stated, that where any doubt arises upon the true sense and meaning of the words themselves, or any difficulty as to their application under the surrounding circumstances, the sense and meaning of the language may be investigated and ascertained by evidence dehors the instrument itself; for both reason and common sense agree that by no other means can the language of the instrument be made to speak the real mind of the party.”
Likewise in Reed v. Insurance Co., 95 U. S. 23, 24, L. Ed. 348, Mr. Justice Bradley, delivering tbe opinion of tlie court, said:
“Although a written agreement cannot he varied (by'addition or subtraction) by proof of the circumstances out of which it grew and which surrounded its adoption, yet such circumstances are constantly resorted to for the purpose of ascertaining the subject-matter and the standpoint of 'the parties in relation thereto. Without some knowledge derived from such evidence, it would be impossible to comprehend the meaning of an instrument, or the effect to be given to the words of which it is composed. This preliminary knowledge is as indispensable as that of the language in which the instrument is written. A reference to the actual condition of things at the time, as they appeared to the parties themselves, is often necessary to prevent the court, in construing their language, from falling into mistakes and even absurdities.” (2 Taylor, Ev., section 1198; Wood, Pr. Ev., sections 15, 26; Hall v. Davis, 36 N. H. 569; Bartels v. Brain, 13 Utah 162, 44 Pac. 715; In re Curtis [Conn.] 30 Atl. 769; Harrington v. Chambers, 3 Utah 94, 1 Pac. 362; Abba v. Smyth, 21 Utah 109, 59 Pac. 756; Macdonald v. Longbottom, 1 E. & E. 978; Thorington v. Smith, 8 Wall. 1, 19 L. Ed. 361.)
From tbe foregoing considerations, we are of tbe opinion that tbe testimony in question was properly admitted for tbe purposes indicated.
Tbe appellants further complain that tbe court erred in finding that tbe plaintiff purchased tbe tract of land together with tbe drain ditch and stream of spring and seepage water flowing therein, and that tbe ditch, with right of way and stream, was conveyed to him with tbe land by deed. They insist that such finding is contrary to tbe evidence, and that tbe finding and decree ought to have been in their favor. This presents tbe decisive question in this case, which is whether tbe right to tbe water and ditch passed by tbe deed as an appurtenance to tbe land. As has already been noticed, tbe deed
But after having constructed the ditch and carried the water upon a particular portion and applied it there, and having thus added an advantage to the land and enhanced its value by artificial means, could he in his lifetime, after selling that portion with the benefits and advantages pointed out and openly visible to the purchaser, or can his grantee of another portion of the tract to which the'water had never been carried or applied, now that the grantor is. dead, destroy the ditch, or can his legal representatives now, after the grantor is gone, destroy the ditch, deprive that portion of the land of these benefits and advantages, materially dimmish the value of. the part sold, and so change the ditch and dispose of the water as not even to benefit the land which the grantor retained? The mere statement of such a proposition would seem sufficient to refute it. It is insisted, however, for the appellants that the owner could not create an easement in his own land, and that, so long as the grantor owned what are now claimed to be the servient estate and the dominant estate, his use of one for the benefit of the other was a mere exercise of a right of property over his own land, and in no sense an easement. Whether or not the artificial arrangement of the material properties of his estate by the owner, constituted a technical easement is, under the facts and circumstances of this case, immaterial. It clearly created a condition to the land sold partaking of the character of an easement constituting at least a quasi easement, visible to the purchaser, and one of the things in the minds of the parties when the bargain of sale was made. The contract of sale was made with reference to it as a part of the subject-matter, and was thus treated as, and in fact became, quasi appendant to the land sold, and the vendor could not thereafter derogate from his own grant. The presumption of law is that the parties contracted with a view to the condition of the property as it actually was at the time of the transaction, and after sale neither one had a right,
“The rule of the common law on this subject is wel] settled. The principle is that where the owner of two tenements sells one of them, or the owner of an entire estate sells a portion, the purchaser takes the tenement, or portion sold, with all the benefits and burdens which appear, at the time of the sale, to belong to it, as between it and the prop--erty which the vendor retains. This is one of the recognized modes by which an easement or servitude is created. No easement exists, so long as there is a unity of ownership, because the owner of the whole may at any time, rearrange the qualities of the several parts; but the moment a severance occurs, by the sale of a part, the right of the owner, to redistribute the properties of the respective portions ceases, and easements or servitudes are created, corresponding to the benefits and burdens mutually existing at the time of the sale. This is not a rule for the benefit of purchasers only, but it is entirely reciprocal. Hence, if, instead of a benefit conferred, a burden has been imposed upon the portion sold, the purchaser, provided the marks’ of the burden are open and visible, takes the property with the servitude upon it. The parties are presumed to contract in reference to the condition of the property at the time of the sale, and neither has a right, by altering arrangements then openly existing, to change materially the relative value of the respective parts.” (Lampman v. Milks, 21 N. Y. 505.)
But it is insisted, for the appellants, that the right to the ditch and water in this case did not pass as an easement nor as a quasi easement, because, it is urged, it was not continuous, but was discontinuous in its character and not strictly a necessity to the enjoyment of the estate granted. This contention, it must be conceded, presents a question upon which the authorities do not all appear to be harmonious. The distinction between easements continuous and discontinuous is found in the Civil Code of France, where easements, or servi-tudes, are divided into continuous and discontinuous, and are defined:
*172 “Continuous are those of which the enjoyment is or may be continued, without the necessity of any actual interference by man, as a waterspout or a right of light or air. Discontinuous are those the enjoyment of which can be had only by the interference of man, as rights of way, or a right to draw water.” Washburn on Basements and Servitudes [4 Ed.] 21.
The same Code, it seems, also divides servitudes into “apparent” and “nonapparent,” and the analogy between tbe French Code and the common law in this regard would seem to indicate, as suggested by Gale & Whatley, in their work on the Law of Easements (page 40), a common origin. In many common-law cases the substance of these classifications can be distinctly traced, and the distinction is frequently recognized in American cases. Mr. Washburn, in his work above referred to (page 107), which has been cited by the appellants, says the general rule is that such easements as are noncontinuous will not pass by an implied grant; and of these, he says, the most important are rights of way. The same author says that continuous and apparent easements, such as rights of drainage, of aqueducts, of air and light, or conduits, will pass by implied grant, when, as generally held, they are “necessary to the reasonable use and enjoyment of the granted premises.” Then, after explaining these rules, the author says:
“A noted exception to the general rules above stated is found in the decisions of the courts in Maine and Massachusetts. It is held by them that no easement, whether continuous or noncontinuous, apparent or nonapparent, will pass by implied grant or reservation, unless it is one of strict necessity. If the grantee can procure the enjoyment of a similar easement, no matter how great the cost, or if the easement is not absolutely necessary to the enjoyment of the granted property, it will not pass.”
The exception thus pointed out by the eminent author serves to explain the cases cited, by appellants, as to the rule, insisted upon by them, of strict necessity, whether the easement be continuous or noncontinuous, apparent or nonapparent. In the same work, however, after a further discussion of this question and different lines of authorities the author (on page 110) says:
*173 “To return to the general subject, the courts in the United States have generally adopted the English rule, that simultaneous sales or descents of two adjoining lots belonging to the same owner impress upon each lot the apparent and continuous servitudes which are in use over it at the time of the sale. Those states in which such easements, to pass by implied grant, must of strict necessity apply the same limitations herej while in those states in which the easements need only be reasonably necessary to the use of the granted premises such reasonable necessity is sufficient.”
Tested by tbe rule of reasonable necessity which commends itself as alike just and equitable, and in consonance with fair dealing, the right to the ditch and water, in this case, clearly passed by the conveyance of the premises, as an appendant or quasi appendant thereto. We fully recognize the fact that the owner of a tract of land may use one part thereof for the benefit of another, or each part for the benefit of the other in any manner he may choose, or in such a way that, if he sold one of them, he would not desire to continue the use, and that so long as he owns the unity he may change the use at his will, or discontinue it altogether, and thereby restore to each part its natural properties or qualities; but, if the use be so obvious and of such character as to induce in the public a reasonable belief that it has been permanently established as an incident to each part, then justice and common fairness require that, if he contemplates a change in the use or state of the premises, he must make it anterior to a sale of one of the portions, or reserve the right in his deed or grant, else be bound by the servitude as to the land he retains. Where a conveyance is made by deed, the
“property conveyed passes, with all the incidents then rightfully belonging to it, or actually and usually enjoyed with it at the time of the conveyance, so far as they are necessary to the full benefit and perfect enjoyment of the property, without any specification of them and without the usual phrase, ‘with all the privileges and appurtenances to the same belonging.’” (Dunklee v. Wilton R. Co., 24 N. H. 489.)
Mr. Famham in his work on Water and Water Nights (volume 3, section 831), says:
*174 “If the owner of land has artificially created upon the property a condition which is favorable to one portion of his property, and then sells that portion, the grantee will take it with the right to have the favorable condition continued. Therefore, where the owner of land across which a stream flows has diverted it through an artificial channel, so as to relieve a portion of it formerly overflowed, which he then conveys, neither he nor his grantees of the residue can return the stream to its ancient bed,-to the injury of the first grantee.”
Gale & Whatley, in their work on the Law of Easements (page 40) say:
“It is true that, strictly speaking, a man cannot subject one part of his property to another by an easement, for no man can have an easement in his own property, but he obtains the same object by the exercise of another right, the general right of property, but he has not the less thereby permanently altered the quality of the two parts of his heritage; and if, after the annexation of peculiar qualities, he alien one part of his heritage, it seems but reasonable, if the alterations thus made are palpable and manifest, that a purchaser should take the land burthened or benefited, as the ease may be, by the qualities which the previous owner had undoubtedly the right to attach to it.”
In Gould on Waters (3 Ed.), section 354, it is said:
“The general rules relating to severance of tenements are that a grant by the owner of a tenement or part of that tenement, as it is then used and enjoyed, passes to the grantee by implication, and without the use of the word ‘appurtenances,’ or similar words, all those easements which the grantor can convey, which are necessary to the reasonable enjoyment of the granted property, and have been and are at the time of the grant, used by the owners of the entirety for the benefit of the granted tenement.”
In Curtis v. Ayrault, 43 N. Y. 73, where, as here, the controversy was over a drain ditch which was deepened from time to time, and which had been constructed to carry water, accumulating on one parcel of land, over another, while there was a unity of ownership, and where, in disposing of the case, the essential question of fact was stated to be whether the purchaser of the parcel, across which the water flowed by means of the ditch, in arriving at the price he would pay, did consider and had a right to consider, as an element of value, the ditch across the tract giving, a supply of water through it,
"Some stress is laid upon the purpose which Newbold had in making the ditch, and it is claimed that it was naught else than to drain his lands. But the application of the rule does not depend solely upon the purpose for which the changes have been made in the tenement by the owner. It is the open and visible effect upon the parts which the execution of the purpose has wrought which presented to the view of the purchaser is presumed to influence his mind, and to move him to Ms bargaining.”
Tbe leading case, one of approved authority, wbicb bas uniformly been regarded as settling tbe law on tbis subject, is Nicholas v. Chamberlain, Cro. Jac. 121, where, using tbe language of Coke:
“It is held by all the court upon demurrer that if one erect a house and build a conduit thereto in another part of his land, and convey water by pipes to the house, with the appurtenances, excepting the land, or sell the land to another, reserving to himself the house, the conduit and pipes pass with the house, because it is necessary, et quasi, appendant thereto, and he shall have liberty by law to dig in the land for amending the pipes, or making them new, as the case may require.”
In Baker v. Rice, 56 Ohio St. 463, 47 N. E. 653, with reference to continuous and discontinuous easements it was said:
“But it is claimed that only such easements as are termed 'continuous’ will pass by implication in a grant, and that such as are termed ‘discontinuous’ will not. This is a distinction of the civil law, and has been incorporated in the law of some of the states, particularly Maine and Massachusetts. The former are such as operate without the intervention of man, such as drains and sewers; the latter require the intervention of man in their use, such as ways. The distinction is somewhat arbitrary and is not uniformly adopted, as will appear from the cases cited. The better rule, and the one now generally adopted, is not to consider the particular kind of easement, but whether it is apparent, designed to be permanent, and is reasonably necessary to the use of the premises granted.”
So, in James v. Jenkins, 34 Md. 1, 6 Am. Rep. 300, after a statement of tbe principle tbat, wben one owns an entire
“Whenever, therefore, an .owner has created and annexed peculiar qualities and incidents to different parts of his estate (and it matters not whether it be done by himself, or his tenant by his authority), so at one portion of his land becomes visibly dependent upon another for the supply or escape of water, or the supply of light and air, or for means of access, or for the beneficial use and occupation, and he grants the part to which such incidents are annexed, those incidents thus plainly attached to the part granted, and to which another part is made servient, will pass to the grantee, as accessorial to the beneficial use and enjoyment of the land.”
In Ingals v. Plamondon, 75 Ill. 118, a case cited by tbe appellants, it was said:
“The rule of the common law upon the subject is that where the owner of two heritages, or of one heritage, consisting of several parts, has arranged and adapted these so that one derives a benefit or advantage from the other of a continuous and obvious character, and he sells one of them without making mention of these incidental advantages or burdens of one in respect to the other, there is, in the silence of the parties, an implied understanding and agreement that those advantages and burdens, respectively, shall continue as before the separation of the title.” (3 Far., Water & Water Rights, sections 831-833; Gale & Whatley on Easements, pp. 38-41; Gould on Waters (3 Ed.), sections 318, 319, 354; Washburn’s Easements & Servitudes [4 Ed.], 105-111; Eliason v. Grove, 85 Md. 215, 36 Atl. 844; Paine v. Chandler, 134 N. Y. 385, 32 N. E. 18, 19 L. R. A. 99; Cave v. Crafts, 53 Cal. 135; Lampman v. Milks, 21 N. Y. 505; Kieffer v. Imhoff, 26 Pa. 438; Robbins v. Barnes, Hob. 131; Liford's Case, 11 Co. 52; Farmer v. Ukiah Water Co., 56 Cal. 11; Cihak v. Klekr, 117 Ill. 643, 7 N. E. 111; Newell v. Sass [Ill.], 31 N. E. 177; Jackson v. Trullinger, 9 Or. 393; Coolidge v. Hager, 43 Vt. 9, 5 Am. Rep. 256; Cannon v. Boyd, 73 Pa. 179; United States v. Appleton, 1 Sumn. 492, Fed. Cas. No: 14463.)
"While tbe evidence does not in direct terms sbow tbat tbe water was actually used upon tbe land for irrigation prior to tbe sale it does sbow expressly tbat tbe ditcb bad been constructed over tbe land and tbat water flowed therein for many years prior to tbat time, and it is also shown tbat immediately
We do not deem it important to discuss any other point presented.
The judgment is affirmed, with costs.
Dissenting Opinion
(dissenting).
I dissent, not from the principles of law as stated in the cases cited in the prevailing opinion, but from the application made of them to the facts of this case. In brief, the case is this: In 1891, and prior thereto, Levi North was the owner of a certain tract of land. The north and middle portion of it was too wet for farming, and so a plow furrow, variously estimated as being eight to twelve inches deep and spoken of by the witnesses as a drain or waste ditch, was run partially through the tract, northerly and southerly, to drain it. In June, 1891, North sold to plaintiff, Fayter, 2.2'9 acres off the southerly portion of the tract, at which time plaintiff made a partial payment on the purchase price and took possession of the land. . The deed was not made and delivered until June, 1893. Originally the drain ditch ran to the north boundary of the land purchased by the plaintiff, and thence coursed westerly to a slough lying to the north of the land purchased by plaintiff. The water flowing in the drain or waste ditch was seepage water percolating through the soil of the land lying to the north of that sold to plaintiff. In July and August, 1891, and after he had taken possession, plaintiff built a house on the land purchased by him, and in 1892 widened and deepened portions of the drain ditch, as he says, to drain a portion of his own land, to obtain an increased water supply, and because North agreed to pay him one-half of the expense of enlarging the ditch. The defendants say plaintiff’s widening and deepening the ditch was.all done for hire. Plaintiff used water from the drain ditch in building his house, and later, and up to 1903, used it for irrigating portions of his land and for culinary purposes. There was also a water right sufficient to irrigate two acres, which belonged to the land and admittedly was conveyed to plaintiff by his deed of conveyance as an appurtenance, and is not here in controversy. Levy North died three years after his conveyance to plaintiff. The defendants North are his heirs, and the other defendants arc his gi antees, who succeeded to the ownership of the land lying to the north of that sold to plaintiff,
1. The majority court has affirmed the judgment, not on the theories as found by the court, but on the theory that the drain ditch and the water coursing in it were appurtenances to the land conveyed to plaintiff. This is principally done because of the conversations between the parties and of statements made by North at the time of the sale, and because of acts and conduct with respect to the water thereafter. To support this theory, texts and cases are cited to the effect, first, that where, during the unity of title, an apparently permanent and obvious servitude is imposed on one
“To justify such construction it must appear from the disposition, arrangement, and use of the several parts that it was the owner’s purpose in adopting the existing arrangement to create a permanent and common use in the one part for the benefit of the other or for the mutual benefit of both, and it must be reasonably inferable from the existing disposition and use that it was intended to be continuous, notwithstanding the severance of ownership. ... A mere temporary or provisional arrangement, however, which may have been adopted by the owner for*182 the more convenient enjoyment of the estate cannot constitute the degree of necessity or permanency which would authorize the engrafting upon a deed by construction of a right to the enjoyment of something not within the lines described.” (Hancock Mut. Life Ins. Co. v. Patterson, 103 Ind. 582, 2 N. E. 188, 53 Am. Rep. 550.)
Three things are essential to the creation of an easement in this way: First, a separation of title; second, that before the separation takes place the use which gives rise to the easement shall then exist and shall have been so long continued and so obvious as to show that it was meant to be permanent; and, third, that the easement shall be necessary to the beneficial enjoyment of the land granted or retained. So the fact that the plaintiff used the water from the drain ditch on the land after he purchased it and went into possession is not here of controlling force, for it is essential that such an easement should have in fact been used by North during the unity of the tenements and was existing at the time of the severance of ownership, designed by him to have been permanent and for the use and benefit of the land conveyed by him to the the plaintiff, and that its use was necessary for the enjoyment of the property. Kelly v. Dunning, 43 N. J. Eq. 62, 10 Atl. 276; Ingals v. Plamondon, 75 Ill. 118; Whiting v. Gaylord, 66 Conn. 337, 34 Atl. 85, 50 Am. St. 87; Root v. Wadhams, 107 N. Y. 384, 14 N. E. 281; Brakely v. Sharp, 9 N. J. Eq. 9, and cases cited in the prevailing opinion; Providence Tool Co. v. Corliss, 9 R. I. 564; Evans v. Dana, 7 R. I. 306.)
It is not necessary here to determine whether such an easement to be an appurtenance and pass with the land shall not only be apparent, designed to be permanent, and whether it shall, also, be strictly necessary, as some authorities say, or only reasonably necessary or a mere beneficial and valuable convenience, as others say, for the evidence lacks the required proof that the water coursing in the drain ditch was at all used upon the land or belonged to it at the time of the purchase and sale, or that the drain ditch was at all constructed or maintained for the use and benefit of the land purchased by plaintiff. It is said that while the canal and spring water
“The degree of necessity which nnist exist to give rise to an easement hy implied grant is such merely as renders the easement necessary for the convenient and comfortable enjoyment of the property as it existed when the severance was made” (Kelly v. Dunning, supra; Hancock Mut. Life Ins. Co. v. Patterson, supra).
and not to what use it may have been put thereafter. The evidence is wanting that prior to the severance North used any drain water on the land sold to plaintiff, or that lie used or enjoyed the property in any such manner as did the plaintiff. To the contrary, the evidence shows that plaintiff completely changed the condition of the property by erecting buildings, planting trees, vines and shrubs, and doing gardening, and thereby created a necessity for more water. So, when the authorities say that the easement, such as here, shall be necessary to the beneficial enjoyment of the land, they mean “as it existed when the severance was made,” and not as it may thereafter be changed or adapted to different uses. The fact, if it be a fact, that Levi North, after the sale and possession of the plaintiff, used water out of the drain ditch on the land to mature the crop reserved by him affords no presumption that he had done so before the sale and plaintiff’s possession. Lawson’s Presumptive Ev., 230, 238. Even if it afforded any such presumption, it, however, could not prevail against the direct and positive evidence that the water had not been used on the land prior thereto.
It is also said that the situation and surrounding conditions should be considered as they were at the time when the deed was actually made and delivered, in June, 1893. I think not. The conditions and situation are to be considered as
I find no authority holding this evidence admissible. To the contrary, the authorities are numerous holding it inadmissible.
“The evidence does not prove that the way in question was such an easement or privilege in the defendant’s land appurtenant to the granted premises as would pass with the deed of those premises. . . . The evidence failing to prove the way claimed to have existed and been used by the owner of the severed heritage for the benefit of that part of the estate severed prior to the severance, no parol evidence of an agreement concerning such way for the purpose of showing that it passed by the deed, the deed being silent respecting it, is competent or admissible. A deed of land, or of any interest in land, must be explained by its own terms as to what passes by it, except as to the condition of the premises at the time of the purchase — what easements then existed as appurtenant, or had been annexed to or used in connection with or for the benefit of the premises so conveyed prior to the severance. This rule of law excludes all evidence of any parol agreement concerning this right of way.” (Providence Tool Co. v. Corliss, supra.)
“It is too clear to admit of any doubt that parol evidence could not be received to vary the terms of the deed. The situation of the subject-matter of the conveyance may, indeed, be shown by parol, to aid in the construction of the instrument; but evidence that it was verbally agreed that certain things should or shoiüd not be included in the conveyance would not be admissible.” (Proctor v. Gilson, 49 N. H. 62.)
“Parol evidence is inadmissible to ingraft on a deed an agreement that the grantee shall have a right of way from his lot to the street over the grantor’s land.” (Kruegel v. Nitschmann, (Tex.), 40 S. W. 68.)
“When the language of a written agreement is susceptible of more than one interpretation — that is to say, is on its face ambiguous — it has been held that the courts will look at the surrounding circumstances existing, when the contract was made, at the situation of the parties and the subject-matter of the contract, and will sometimes even call in aid
To the same effect are tbe following cases: Uihlein v. Matthews (N. Y.), 64 N. E. 792; Van Husen v. Ry. Co., 118 Iowa 366, 92 N. W. 47; Shaver v. Edgel, 48 W. Va. 502, 37 S. E. 664; Canal Co. v. Ryerson, 27 N. J. Law 457; City of Kansas City v. Banks (Kan. App.), 61 Pac. 333; Armstrong v. Lake Champlain Granite Co., 147 N. Y. 495, 42 N. E. 186, 49 Am. St. Rep. 683; Evans v. Dana, 7 R. I. 306. If ibis were an action properly brought to reform tbe deed, it may be tbat some of tbis testimony would be admissible. But we bave no sucb case before us.
2. As to tbe adverse user and possession: Tbe undisputed evidence shows tbat tbe water in tbe drain ditch was seepage water coming from percolations through tbe soil of tbe land lying to tbe north of tbat purchased by tbe plaintiff, and, being therefore a part and parcel of tbe soil in which it was found, was not subject to appropriation and could not be acquired by adverse user. (Willow Creek Irr. Co. v. Michaelson, 21 Utah 248, 60 Pac. 943, 51 L. R. A. 280, 81 Am. St. Rep. 687; Crescent Min. Co. v. Min. Co., 17 Utah 444, 54 Pac. 244, 70 Am. St. Rep. 810; So. Pac. Ry. Co. v. Dufour, 95 Cal. 615, 30 Pac. 783, 19 L. R. A. 92.)
3. As to an estoppel: Tbe plaintiff claims tbat tbe defendants saw him build his bouse, plant trees and shrubs, deepen and widen tbe drain ditch, made no objection, did not deny him tbe right to tbe use of the water, and did not themselves assert title to it; therefore they should now be es-topped from asserting title to tbe water or from in any way interfering with its flow. Tbe mere statement of tbe essential elements of an equitable estoppel shows tbat tbis contention cannot prevail.
“In order to constitute an equitable estoppel, there must exist a false representation or concealment of material facts. It must have been made with knowledge, actual or constructive, of'the facts. The party
Tested by these principles, tbe facts are far from showing an estoppel. The plaintiff had the undoubted right to build a house on his own land and to improve it by planting trees and shrubs and the like. Against these acts the defendants were not in duty bound to speak, and could not properly have objected thereto had they desired to do so. The use that the plaintiff made of the water was a mere permissive one. To constitute an equitable estoppel the authorities say there must be some degree of turpitude in the conduct of the party before a court of equity will estop him from the assertion of his title. The acts claimed to work an estoppel did not involve' such false representations or concealment of facts, or such things done with intention to have been acted upon within the meaning of the adjudicated cases.
4. The decree adjudged the plaintiff not only to have the right to take the water out of the ditch, but adjudged him tobe the absolute owner of the water itself and of the ditch, quieted the title thereto in him, adjudged that the defendants had no claim or title whatever to either the water or the ditch, directed that they permit the water to flow down the ditch as it did when it was diverted by them, and enjoined and restrained them from in any manner interfering with such waters or said ditch. Thus the plaintiff was granted, not only an easement in and to the defendants’ land, but also an estate therein, for the percolating waters were and are part and parcel of the soil of their land, and, both by necessary implication and by the prohibiting and restraining provisions of the judgment, their right and power to use their own land in any manner which will result in diminishing the flow of the ditch or impair plaintiff’s title to or use of the water or ditch, or which will result in any interference therewith, have been completely destroyed. It substantially obligates the defendants to maintain their lands as a reservoir for
For these reasons, I think the judgment ought to be reversed.
