123 Va. 519 | Va. | 1918
after making the foregoing statement, delivered the following opinion of the court:
1. We are of opinion, under well settled rules of law, that upon the partition and sale for partition of the land of John G. Snidow’s estate in 188.., and thereafter, the waste-race, as well as the tail-race below the mill now belonging to appellants, and the use of such races alternately in connection with the operation of the mill, by the temporary stopping of the discharge of water along the tail-race while the owners might be making necessary repairs to the mill, and the discharging of such water during such time by an over-flow from a point above the mill into the waste-race (the respective locations' of which races are shown on the sketch above), were easements (technically known as secondary easements), of an open, visible and permanent character, appurtenant to the ownership of said mill property as the dominant estate; were reasonably necessary to the enjoyment of the ownership of the mill property, and passed, by implication of law, to those under whom appellants claim and derive title, and thence to appellants, as against those of the appellees who claim and derive title tó their lands from the same common source of title, to-wit, from John C. Snidow’s estate, without the use of any descriptive words of grant or reservation in the conveyances under which such appellants or appellees claim and derive
The accustomed use fixed the right of use of the easements, and such easements were none the less valid because they consisted in the right of the use thereof at intervals of time, and for certain purposes, as for a diversion of water for certain repairing to be done. Angell on Water Courses, supra, sec. 143, p. 245, and sec. 153a, supra; 1 Minor on Real Prop. sec. 108. The easements in question having been created as aforesaid, upon the severance of the dominant and servient estates aforesaid, and such severance having been made in a manner equivalent to .a partition of the land, the conveyances making such partition, under which the appellants and appellees affected derive title as aforesaid, must be treated as if they were simultaneous conveyances, and the established principles governing the acquisition of easements by implied grant govern the case. Angell on Water Courses, sec. 161, pp. 282-3; Idem. sec. 166h; 3 Farnham on Waters and Water Courses, sec. 830; 1 Minor on Real Prop., secs. 102, 103. Therefore, in the case before us, as to the right of appellants as against such ap-. pellees, all deriving title from the partition or sale for par
2. As to the right of appellants, as against the .appellees, H. W. Snidow and Mrs. Josephine Snidow (as to a portion of her land), deriving title from Jacob Snidow, Jr., the easements aforesaid having been under the claim of right and of the character aforesaid and hostile to the rights of such appellees as now claimed by them and against such rights in Jacob Snidow, Jr., under whom they claim and derive title, and enjoyed by appellants and those under whom they claim title from about 1847 until this suit was instituted, by adverse, uninterrupted (with respect to the accustomed use), notorious and exclusive enjoyment, as against such appellees and the said Jacob Snidow, Jr., a period of many times more than twenty years, the appellants long before the institution of this suit acquired prescriptive title to such easements. 1 Minor on Real Prop., sec. 108; Angell on Water Courses, secs. 201, 209, 210, 219c; 3 Farnham on Waters and Water Courses, secs. 809, 822, 827d.
3. As to the rights of appellánts as against the citizens of the'town of Pembroke and others, riparian lower owners of land on the natural channel of the creek aforesaid (aside
4. The observations above made apply to such easements as those aforesaid, which are of a permanent character and are necessary for the disposition of water continuously flowing from the dominant estate, so long as the accustomed operation of the mill may be continued in substantially the same way; and where the location of the artificially constructed ways' or channels for the flow of the water and the use being made of them are plainly visible, open and obvious. In such case the rule applies, which is above applied, that the easements arise and exist by implication as attached or appurtenant to the dominant estate, and arc charged upon the servient estates, without the existence of express words of grant or reservation thereof. A different rule has been applied to easements of a different character and for other drainage, such as for rain water, for sewerage and the like, and where the conduits therefor are concealed from view and their location in any particular direction is not a matter of any peculiar necessity. Angell on Water Courses, secs. 121, 128, 166n, 166t and 166v, relied on by appellees. But, for the reasons above indicated, such a rule has no application to the cause before us.
5. However, appellees claim that (a) as owners of the land located on said tail-race, they have the natural corporeal right to the enjoyment of an uninterrupted flow of
(a) The natural corporeal right in question is possessed by riparian owners of land on natural channels of water courses only. Such right does not exist in the water flowing in an artificial' channel. The right, of those owning land bordering upon or through which artificial channels pass, to the use of the water flowing therein, is not a natural right, nor a corporeal right, but an incorporeal right, which can bé acquired only by grant, express or implied, or by prescription. Angell on Water Courses, sec. 90, p. 91; 3 Farnham on Waters and Water Courses, sec. 820.
There are some expressions in some of the authorities cited and relied on by appellees (40 Cyc. p. 608, (f); 28 Am. & Eng. Ency. Law [1st ed.] p. 982), and in other authorities on the subject, to the effect that rights may be acquired by land owners on artificial channels of water courses of which they cannot be deprived; but upon close consideration of such authorities it will be found that the rights which can be so acquired must be by prescription, or by grant express or implied, and can be acquired in no other way. We venture to say that no well considered authority can be found which holds that such rights are natural rights, such as are possessed by a riparian land owner upon the natural course of a flowing stream, or that they can be acquired otherwise than as aforesaid.
As to appellees, who own parcels of the Augustus E. Snidow, subsequently the John C. Snidow, land; as we have seen above they acquired such lands subject- to the easements aforesaid and, in that regard, servient to the said dominant estate of the appellants in said mill property.
(b). The use and enjoyment.of the water flowing in the tail-race by appellees and those under whom they claim title to lands formerly belonging to Augustus E. Snidow, later to John C. Snidow, as aforesaid, was never in conflict with the use of said easements appurtenant to the dominant estate aforesaid and the attendant right of the owners of the dominant estate to divert the water to the waste-race as aforesaid, nor ever even claimed to be so until some three to five years before the suit, as aforesaid. There was never, therefore, any use of such water by such appellees, or those under whom they claim, adverse or hostile to the rights of appellants aforesaid. The absence of such aderse or hostile element in the use relied on by such appellees—an element essential to the acquisition of right by prescription— is fatal to the claim of such appellees to a prescriptive right
As to appellees who own parcels of the Jacob Snidow, Jr., land; as we have seen above, appellants have acquired the prescriptive right to said easements. This has barred the natural rights which such appellees, or those under whom they claim title, rnay have once had to the uninterrupted flow of the water in the natural channel of the creek, and has vested in the appellants the right to interrupt the flow of the water in the tail-race in accordance with the accustomed use thereof aforesaid, which fixed and determined the extent of appellants’ prescriptive right as aforesaid. And such appellees, equally with the other appellees, never had any natural right, as pointed out above, to the use of the water in the tail-race, an artificially constructed channel therefor. They do not claim to have derived the right to the uninterrupted use of the water by grant. As to their claim of prescriptive right to such use, the adverse or hostile element in their use of the water was absent, equally as in the case of The other appellees and, hence, they could not and did not acquire such right by prescription.. Therefore, the appellees, who own parcels.of the Jacob Snidow land, had not, when this suit was instituted, any right to the uninterrupted flow of the water in said tail-race as against appellants, whether by natural right, by grant, express or implied, or by prescription.
The same observations apply to the citizens of the town of Pembroke and other lower riparian owners aforesaid and to their alleged rights (were they parties to this suit), in so far as such rights appear herein to have once existed.
6. The circumstance that in recent years a cave, or sink, occurred on the channel of the waste-race, after the right of appellants aforesaid had been acquired a§ aforesaid, in
7. It should perhaps be mentioned in this connection (although it can have no effect upon the rights aforesaid of the parties) that if the water above the mill-race, where it was originally diverted, were turned back into the original natural channel of the creek, it would be lost, except in. times of freshet, in the caves, which have in recent years also occurred in that channel above the lands of appellees, and, hence, would not reach them in uninterrupted flov/.
8. The appellee, H. W. Snidow, has certain contract rights to the use of water delivered through a certain pipe-log conduit extending from, the mill-race above the mill, but as that right is not drawn in question by the pleadings in this cause, nor affected by the decree complained of, no further reference thereto need be made.
For the foregoing reasons we are of opinion that the decree complained of is erroneous and should be reversed, and that the bill and suit of the appellees should be dismissed, which will be accordingly done.
Reversed.