159 P. 568 | Or. | 1916
delivered the opinion of the court.
“The right of a canal-way through all and any lands then owned or occupied by [the grantors] in Marion*336 County necessary to be passed through, in conveying the water of the Santiam into the channel of Mill Creek,” and also the right “to enter upon the same for the purpose of cutting a canal sufficiently large to admit the flow of any amount of water required by said company for their purposes at Salem.”
A ditch was constructed in 1857, but in 1873 the Santiam Biver was so deflected from its course as to leave the intake of the ditch quite a distance from the new channel of the river, and the plaintiff prolonged its ditch for a considerable distance up the river to a point where it was practical to establish a new intake. The grantees of the original owner of the land interfered with the operation of this extension of the ditch, contending, as here, that the easement became fixed when the original ditch was dug. Upon this point Judge Deady observes:
“The power and privilege was not exhausted by the construction of the ditch to a certain point on the river in 1857. For the purpose of maintaining a canal or ditch on, over, and through the Porter donation, so as to receive and take water from the Santiam thereon, in such quantity as the company or its successors in interest might or may need or require at Salem, it continued and still continues in full force. * * At the date of the grant of the easement Porter and wife were seised of an estate of inheritance in the land, and there is nothing in the terms of their deed or the nature or purpose of the easement which at all indicates an intention to grant the easement for a less time than the duration of their own estate in the premises, but the contrary. Hence the right to maintain a ditch on and through the Porter donation was to conduct water from the Santiam to the channel of Mill Creek, for the purposes of the woolen company at Salem, is perpetual; and if, in the course of time or events, it becomes necessary, to accomplish such purposes, to widen, deepen, or lengthen said ditch, the then owner of the easement may do so.”
“It is claimed that the instrument is void for uncertainty, in that no time certain is fixed for the execution of the purpose of the grant. It was, however, competent for Woods to make such a conveyance without any time limitations. He could convey an interest in the realty as absolutely as he could convey the whole of it. The right of way and the right to divert the water were a part of the realty itself. By the terms of the deed these were conveyed to the grantee, his heirs and assigns forever, subject to certain specified reservations pertaining to the domestic use of the water by the grantor. The absence of specific time limitations must be construed to mean that no such were intended.”
It was also claimed that the right of way was abandoned by nonuser. Concerning this the court says:
“Appellants contend that the right of way was abandoned. Soon after the deed was made, and in the same year, the grantee selected a strip for right of way, and began the construction of a pipe-line system. An outstanding lease, older than the right of way and water right, was held by one Crook. The deed was therefore subject to the lease, and the lease continued until 1896. An application by the lessee to enjoin the continuance of construction work, and the diversion of the water, was sustained by this court: Crook v. Hewitt, 4 Wash. 749 (31 Pac. 28). Nothing further could be done until after the lease expired in 1896. Meantime there was not an abandonment. The evi*338 dence shows that there was no snch intention. Some of the constructed work was left in place, and material remained upon the ground. Occasional examination was made of a constructed dam, and debris was removed to prevent injury thereto. But it is insisted, further, that the failure to proceed promptly after the lease expired, together with the delay until 1902, amounted to abandonment. This court held, in McCue v. Water Co., supra, that where no time is fixed for the occupation and use of a granted right of way, no mere nonuser, for any length of time short of the period of the statute of limitations, will defeat the right of grantee to occupy and use it for the purposes of the grant. If the statute of limitations comprehends the running of time against a mere nonuser, under a grant of this kind, it in any event did not begin to run until such time as the grantee might have peaceably occupied, which was after the lease expired in 1896. Active user was again attempted about August 1, 1902, and this suit was brought within the same month. A period of six years only having expired, it follows that the limitation period fixed by our statutes for actions pertaining to the possession, of lands had not expired.”
What is said in the foregoing excerpt in regard to the statute of limitations can manifestly have no application to .the case at bar, since no necessity for widening the ditch, and consequently no right to exercise the right to do so, arose until a short time before the commencement of this suit. By the terms of the deed defendants were authorized to widen the ditch so as to furnish w:ater to propel such machinery as might be placed upon the tract conveyed in the future; and to widen it at once and before there was any probability that an increased flow of water would be required would have been going beyond the terms of the grant. While the defendants would probably not be required to enlarge their ditch piecemeal, there
The case of Collins v. Driscoll, 34 Conn. 43, is an instructive case. In that case land was conveyed which had on it a drainage ditch leading from it over the grantor’s land; the ditch then being six feet deep, six feet wide at the top, and two feet wide at the bottom, the sides sloping so as to prevent the banks from caving in. The conveyance was of the land “with the privilege of deepening the ditch leading from the premises, to drain the same over the grantor’s land as deep as the grantees may desire.” To deepen it required either curbing or widening it at the top, which latter was the usual mode of ditching swamp-lands. The grantees later desired to deepen the ditch, and in order to do this without curbing, they widened it at the top, cutting away such portions of plaintiff’s adjoining soil as were necessary for that purpose, and thereupon plaintiff brought an action of trespass. Plaintiff’s counsel argued among other matters:
“The words giving ‘the privilege of deepening the ditch’ to an unlimited depth cannot be strained to confer the right to widen to a proportionate or unlimited width. The construction of words should be according to the literal sense: 1 Swift, Dig., 223, 229. It is only where the language is equivocal or doubtful that the situation of the parties or the surrounding circumstances may be shown: Strong v. Benedict, 5 Conn. 210; Brown v. Slater, 16 Conn. 195 (41 Am. Dec. 136). The circumstances confirm the literal construction. Simply deepening the ditch would not injure the plaintiff’s meadow; widening would. Again, no man would convey an unlimited right to deepen and widen also, for this would be more than equivalent*340 to conveying all his land. The language conferring the privilege of deepening the ditch is equivalent to an express provision that it shall not be otherwise disturbed.”
But the court held that when the grantor gave the privilege of deepening the ditch, the parties must have had in mind the method that the grantor had used in its original construction, i. e., by sloping the sides so as to prevent caving, instead of the unusual method of curbing, and that, therefore, the grantees took by implication the right to enter upon and cut away plaintiff’s land for that purpose. This case is in many particulars similar to the case at bar, except in so far as the court goes beyond the necessities of the case at bar in holding the right to cut away plaintiff’s land was conferred by implication, while here such right is expressly conferred. There, as here, the extent of such lateral easement was not directly expressed; there, as in the case at bar, the actual extent of the right was limited only by the future necessities of the grantee, and there, as here, there was no limitation as to the time within which the right should be exercised. Other cases more or less remotely bearing upon this phase of the case are: Adams v. Warner, 23 Vt. 395; Stevenson v. Wiggin, 56 N. H. 308; Jordan v. Mayo, 41 Me. 552; Herman v. Roberts, 119 N. Y. 37 (23 N. E. 442, 16 Am. St. Rep. 800, 7 L. R. A. 226); Quigley v. Baker, 169 Mass. 303 (47 N. E. 1007); and see generally notes to Winslow v. Vallejo, 5 L. R. A. (N. S.) 851; Spear v. Cook, 8 Or. 380; Wheeler v. Wilder, 61 N. H. 2; Standard Oil Co. v. Buchi, 72 N. J. Eq. 492 (66 Atl. 427). The effect of all these cases is that if from the terms of the grant there is manifested a clear intention that the grantee shall enlarge the space origi
The able and ingenious counsel for plaintiffs have suggested no good reason why upon principle such an easement may not be created, and the authorities cited by them fail to support their contention. In the first case cited (Barrett v. Hosmer, 1 Root (Conn.), 271) there was a grant to the defendant of the privilege of erecting a gristmill and dam. The grantee built the mill and dam about the year 1687, and the dam was maintained at a certain height until about 1790, when the then owners raised it 10 inches, thereby overflowing plaintiff’s meadow. It was held that the easement became fixed and definite when the dam was built and long maintained at the original height. It will be noticed here that there was nothing in the grant providing for a future enlargement of the easement, as there was in the deed through which defendants claim, and it has always been the law that where there is an indefinite grant of an easement of this character, with notMng to indicate that it may be changed or enlarged in the future, the first location and user fixes the limits of the grant. The next case (Chapman v. Newmarket, 74 N. H. 424. (68 Atl. 868, 15 L. R. A. (N. S.) 292), was a case where there was a grant of a right of way to flow water across the grantor’s lands, the quantity of water not being specified. It was held that such a grant conveyed an unlimited reasonable right to flow water, but that the grantee could not flow water where there was no necessity for it. The gist of the holding in that case was that the defendant could not flow water for which he had no use when such flow injured an adjoining proprietor.. The right to flow water in a reasonable manner to the extent of the grantee’s necessities was conceded. The next case cited, and
The only cesspool then existing on the adjoining property of Bruce was an open ditch or moat about 150 yards from the Priory House, and the only drains or sewers were those conveying the water and sewage from the Priory House to the moat, and only a part of this drainage was carried there. When Wood got his title, he enlarged the Priory House from a building suitable for 25 inmates to one that would accommodate 150 persons, and converted it into a lunatic asylum, in consequence of which the volume of sewage was greatly increased, creating an intolerable nuisance. Saunders being in possession of the Bruce lands stopped up the drains, and Wood brought suit to en
In the case at bar the deed expressly permits a future increase in the flow of water, and expressly provides that the ditch may be widened to accommodate it. There is no room here for speculation as to what Hilyard Shaw intended to grant by his deeds. If it is in the power of a man by deed to grant an easement which may be enlarged according to the future requirements of the grantee, and to make such future requirements the measure of the extent of his right, then the grantor has used apt words to accomplish that very thing. It is a question of his power to so contract, not of construction as to the meaning of the conveyance. We have given more than usual consideration to the last case cited, for the reason that at first glance it apparently sustains the contention of plaintiffs, although a critical analysis of it shows that the conditions in that case were so different from the one at bar that it can have no application.
Other cases are cited by counsel, but, when examined, they all turn either upon a construction of the terms of the grant, or upon that well-known principle that where an indefinite easement is granted, such as a right of way across the grantor’s land, without specifying the particular location, or the right to flow water through a ditch without specifying the quantity,
The possession by the plaintiffs of the parcels of land adjoining the ditch has not been adverse to defendants. The conveyance of an easement over land does not pass the title or interfere with the right of the owner of the soil to occupy it for any purpose not inconsistent with the easement: Washburn, Easements (3 ed.), 3, 9; Gfoddard, Easements, 4. It follows, therefore, that the plaintiffs, who are successors of Shaw, had a perfect right to occupy and improve their land adjoining the ditch, so long as such occupation or improvement did not interfere with the operations of defendants. Defendants were never in a position to bring ejectment or trespass against them until they were in a position to show that the use of the adjoining land was necessary, and that the growth of manufacturing business upon the 23-acre tract had made it essential for them to widen the ditch in order to procure additional power. If the plaintiffs, with the conveyance of Shaw to defendants’ predecessors staring them in the face, saw fit to make valuable improvements upon the adjoining lands under the mistaken idea that the necessity for defendants’ occupying it would never arise, or that the rights given by Shaw’s conveyances would not or .could not be successfully asserted, they will have to take the consequences of that mistake. They had a legal right to take that risk,
The case of Arthur Irr. Co. v. Strayer, 50 Colo. 371 (115 Pac. 724), is cited and quoted from at length as holding a view contrary to that above expressed, but a close examination of it shows that the plaintiff in error in that case had simply an oral permission to construct a ditch across certain lands, without any stipulation as to its width; that in 1873 they constructed a ditch 10 feet wide on the bottom, and maintained it at that width until 1906, when they proposed to widen it to the extent of 40 feet, 20 feet on each side. t Strayer and other grantees of the original owners of the land adjoining, which subsequent to the construction of the ditch had been laid out in lots and blocks, brought a suit to enjoin the proposed widening of the ditch. It was held that:
“Where one buys lands, through which, at the time, there exists an irrigating ditch in operation, the right of the owner of such ditch to maintain and use the same as before is in no wise affected. The right so acquired is an easement in the lands through which the ditch runs, but the legal title of the lands upon which the servitude rests is in the owner of the servient estate. While the right so acquired extends to the bed of the ditch and sufficient ground on either side thereof to properly operate the same, it does not vest authority in the owner of the ditch to place a greater servitude or burden upon the lands than existed at the time the ditch was constructed, or was reasonably necessary to properly operate it. The extent of the right necessarily depends, in each case, upon various circumstances and conditions.”
The court says further:
“The defendant held no right of way by deed. Its right' was an easement depending solely upon con-*346 tinned use. It not only failed to use the particular land in question, hut acquiesced in its use and improvement by the very ones in whom the fee was vested.”
The case is not different from a hundred others that might be cited, holding that where the right of way is granted in general terms, it becomes fixed by location and user. In the case cited there was no grant and no provision for future widening of the ditch; here there are both. Neither is there anything shown here that ought to work an estoppel, The defendants were under no legal obligation to warn the owners of the fee not to do that which they had a perfect legal right to do. Had defendants been the owners in fee of the lands adjoining the ditch with the present right of possession, and under such circumstances permitted the plaintiffs to make improvements upon the property under a mistaken idea as to their title, perhaps it would have been their legal, and certainly their moral, duty to have spoken, but they were not the owners of the fee, and had no present right of possession, except, perhaps, to pass along the ditch for the purpose of improving or protecting it, and it was no more their duty to warn the owners of the fee against making improvements upon their potential right of way than it is the duty of a purchaser of a mortgage to warn the mortgagor against making improvements upon the encumbered property that may be sold to satisfy the exigency of the mortgage. The grant made by Shaw created an encumbrance on the property adjoining the original ditch, and the recording of the deed was notice of that encumbrance, and parties making improvements along the route of the ditch and near enough to be affected by any probable widening of it that the grantees might
It is claimed that Walter Edris, a former owner of an interest in the ditch, disclaimed the right to widen the ditch, and that this disclaimer is binding upon' the defendants. His testimony, however, does not indicate any disclaimer, but a mere failure to assert a right which his statements show it was unnecessary to assert, as he testifies that the ditch then furnished all the water that was necessary. A disclaimer, to be of value, must have been so publicly made as to have misled another person into the belief that the person making it intended to abandon an existing right, and thereby induced him to act to his own injury in respect to the subject matter. Such a state of facts does not appear in the testimony here. Neither is the fact that Edris and other grantees asked permission of adjoining owners to bank upon their property the mud and silt that had accumulated in the bottom of the ditch, and had desisted when objection was made, any evidence of acquiescence by them in an adverse claim by adjoining owners as against the easement now claimed by defendants. To “deepen and widen the ditch” means to make it deeper and wider than it then was, and does not, either by its terms or by reasonable implication, mean that in order to maintain it at its then depth defendants were at liberty to dump upon adjoining property filth and silt which had fortuitously accumulated on the bottom, thereby rendering it shallower. They had no such right.
The deed in question conveys: (1) A specific parcel of land; (2) a right to the grantee to the ditch and water flowing therein for the purpose of operating the machinery then upon the land and such other machinery as should be placed there; (3) the right to enter upon the grantor’s land and appropriate so much of it as may be necessary to operate any machinery placed upon the granted premises in the future. In the very nature of things the water right
But even if an appurtenance to the 23 acres, the water right may be reserved in a grant to any parcel of the land: Sweetland v. Olsen, 11 Mont. 27 (27 Pac. 339). Defendants’ relation to the water right and way in question is fixed by the deed, which, in effect, grants to them all the power then produced through the agency of the ditch, and as much more in the future as can be used in factories erected on the 23-acre tract. They would have no right to cover the tract with factories to its full capacity, and then build other factories upon adjoining land and increase the capacity of the ditch in order to supply these additional mills, because this would be putting a burden upon the servient estate beyond that which was contemplated in the grant; but so long as they confine their operations to factories situated upon the 23 acres, it is a matter of no moment to these plaintiffs, who take subject to Shaw’s conveyance to defendants’ grantors, how the water is apportioned among occupants of the dominant tract. Neither is it of im
There are, no doubt, cases where the right or easement is so intimately connected with the land that a reservation of it destroys it entirely. Such a case is Cadwalader v. Bailey, 17 R. I. 495 (23 Atl. 20, 14 L. R. A. 300). Cadwalader purchased from Bailey and another certain lands situated adjacent to Bailey Beach, a bathing resort. In the deed was a covenant by the grantors that they would not construct any buildings upon certain parts of said beach between the lands granted to plaintiff and the water; the evident object of this covenant, as the court found, being to preserve the view of the grantee from obstruction. Cadwalader sold the granted premises to another, but in the deed reserved to himself all the rights arising from the covenant of his grantors not to build in front of the land. His grantors did build, and he brought a bill in equity to compel them to remove the building. The court held that as the purpose of 'the covenant was to prevent an obstruction of Cadwalader’s view from the premises sold to him, and as he had sold the premises, and therefore had no view to obstruct, he had no cause of suit, and his reservation destroyed the easement created by the covenant. But here defendants
The defendants will be permitted to widen their ditch so as to bring it up to 50 feet in width, and will be enjoined from further widening it, and from throwing mud and silt from the bottom upon adjacent property. Neither party will recover costs here or in the court below. Modified.