39 P.2d 924 | Kan. | 1935
The opinion of the court was delivered by
This was an action to enjoin the governing body of a city from diverting the waters of a stream. Judgment was for defendants. Plaintiff appeals.
Some time prior to 1923 Charles S. Gill became the owner of the right of way of the millrace and all of the ground condemned by the corporation in the first place, together with the building on the old millsite at the lower end of the race. In 1928 Charles S. Gill and wife, by a quit-claim deed, conveyed to the city the upper end of the millrace from the point where the waters of the Ninnescah are directed into it to a point near the east corporate limits of the city. The deed contained the following language:
“Also the millrace, together with the rights of way belonging to the Ninneseah Roller Mill under former grants in so far as they apply to tracts west of the north-and-south half-section line in section five (5), township twenty-eight (28), range seven (7), west of the sixth P. M., the same being the same right of way condemned heretofore by legal proceedings by the Ninnescah Water and Power Company, said race at the time of said condemnation being*133 through and across the lands of S. Turner, W. D. Sugar, South Addition to the city of Kingman, Kansas, A. D. Turner, H. L. Ball, Joseph L. Roberts and P. Buffington, together with all dams, wasteways, sluices and all appendages and properties, belonging to said race in so far as they apply to the property west of the north-and-south half-section line of said section, five (5).
“The intention being hereby to grant, convey and quitclaim unto party of the second part, its successors and assigns, all of the millrace property and contiguous lands lying within the corporate limits of the city of Kingman, Kan., and west of the center line of section five (5), township twenty-eight (28), range seven (7), west of the sixth P. M., together with any and other rights or easements which we now have within the corporate limits of said city not heretofore conveyed or contracted upon.”
The point where the waste gate was installed in the millrace is located at about the east edge of the portion of the millrace that was acquired by the city. Shortly after the city acquired title to the upper portion of the right of way of the raceway, and near the point where the waste gate was located in the north bank of the raceway near the east corporate limits of the city of Kingman, and near the east edge of the grant to the city of Kingman, the city tore away the waste- gate and built a dam across the entire width of the race and raised the level of the water in the race, widened out its banks and added that portion which they owned to their park system. In building the dam and structure the city tore away and removed the north bank of the millrace, this being the bank next to the river below the point where they erected the dam, thus diverting the water after it passed over the dam back into the river and placed the water in such a way it could not and did not flow on down the raceway to the millsite.
Shortly after the city acquired title to the upper portion of the millrace the plaintiff acquired title to the lower portion of it east of the city limits and to the land belonging to Gill at the millsite. Desiring to use the water that flowed down the raceway the plaintiff demanded of the city that it restore the north bank of the race below the dam so the water might flow over the dam in the race and on down the race to the point where the water could be utilized for the operation of a mill on the land of this plaintiff. The city refused, and this action is the result.
The petition alleged facts about as they have been stated here. The defendants demurred on the ground that the petition did not state a cause of action. The demurrer was sustained. Hence this appeal.
It is the contention of plaintiff that the millrace, having been used
It will be noted that the party from whom plaintiff acquired his title to the lower portion of the millrace and the millsite is the same one from whom defendant acquired the upper portion of the millrace. It is also worthy of note that plaintiff acquired his title after defendant had acquired its title, and the conveyance to defendant conveyed all rights and easements which grantor then had.
The theory of plaintiff is that his land is the dominant estate, and that water having flowed over the land owned by defendant for use at the millsite of plaintiff, the defendant’s land is the servient estate. The trouble with that theory is that there was no servient or dominant estate here. From the time when the condemnation proceedings were first had until the upper part of the millrace was conveyed to defendant all the property in question belonged to one person. There was unity of ownership of the dominant and servient estates. This question was considered in Gayetty v. Bethune, 14 Mass. 49. There a right of way across land was claimed by right of prescription. The court held that it was impossible for a man to obtain an easement over his own ground. The court said:
“Prescription, in the ancient sense of the word, is founded upon the supposition of a grant; and therefore it is, that the use or possession, on which it is founded, must be adverse, or of a nature to indicate that it is claimed as a right, and not the effect of indulgence, or of any compact, short of a grant.” (p. 52.)
To the same effect is Vossen v. Dautel, 116 Mo. 379. There the court said:
“It is to be observed that no man can acquire an easement in his own lands.” (See, also, Clark v. Allaman, 71 Kan. 206, 245, 80 Pac. 571.)
The reason for this rule is that the obtaining of a right by prescription is based on the theory that the person claiming the right claimed it all the time as a right against the rights of others. If there was a situation at any time while the right by prescription
The judgment of the trial court is affirmed.