Miller v. Vaughn, 8 Or. 333

Miller v. Vaughn

8 Or. 333 | Or. | 1880

*336Bv the Court,

Kelly, C. J.:

The deed made by the respondent to Baxter, on the sixteenth of August, 1872, is somewhat informal; but, after all, there is no difficulty in ascertaining what was the intention of the grantor when he made it, and what was actually granted by the deed. By a recital contained in it, it appears that Baxter was then in the act of constructing a race along Kilchis river, and the testimony shows that the place where the water was to be taken from the river was aboul one and a half miles above the upper end of respondent’s land. Baxter was about to erect a saw-mill on a small piece of land which he had purchased on the lower end of the same that belonged to respondent, and the object in making the race was to convey water from Kilchis river to propel the mill, and necessarily to take it across the respondent’s land.

By the deed the respondent granted to Baxter, his heirs, and assigns, the right of way over a strip of land, one rod in width, from the east side of his tract of land, to the sawmill on the west side, to be used as a passage way for the purpose of floating logs to the mill and supplying it with water. The right so granted was an easement, an incorporeal right; a right which was intangible. It was not the grant of a strip of land, nor of any water naturally flowing on the land, but simply the right to dig a race and conduct water in that race across the land of respondent, for the purposes specified in the deed. When an easement is granted, nothing passes as an incident to such grant but what is necessary for its reasonable and proper enjoyment. And notwithstanding the grant, there remains in the grantor the right of full dominion and use of the land, except so far as a limitation of his right is essential to the fair enjoyment of the right of way which he has granted. And it is not necessary that the grantor should expressly reserve any right which he may exercise consistently with a fair enjoyment of the grant. Such rights remain with him because they are not granted. (3 Kent’s Com. 420; Maxwell v. McAtee, 9 B. Munroe, 20; Lyman v. Arnold, 5 Mason, 195.)

*337It appears from tbe deed itself, as well as tbe evidence in tbe case, that it was manifestly tbe intention, both of tbe grantor, wbo made tbe deed, and tbe grantee, wbo accepted it, that tbe right of way was given to enable tbe latter to conduct tbe water from Kilehis river, not from Yaughn creek, to tbe saw-mill. And it would be a perversion of tbe terms of tbe grant to say that, because tbe grantee neglected to repair tbe dam in tbe Iiilchis river, be thereby acquired tbe right to supply bis mill with water from a stream which never was intended to be granted to him, and which, in fact, never was granted. Even if tbe respondents bad granted fee simple title to tbe strip of land, instead of simply tbe right to take water over it, it is questionable whether Baxter, or bis assigns, would be authorized to divert tbe water in Yaughn creek from its natural channel, to the injury of tbe riparian owners below tbe race-way. It is sufficient for us to say that no such right exists under tbe deed of tbe sixteenth of August, 1872.

Tbe decree of tbe court below is affirmed with costs.