Patterson v. Chambers Power Co.

159 P. 568 | Or. | 1916

Mr. Justice McBride

delivered the opinion of the court.

1-6. The whole case here turns upon the construction of the deed from Shaw. It is plain and direct in its terms, and was executed and recorded before any of the plaintiffs purchased their property, and they therefore took title with constructive notice of any burden which it created upon their holdings. "We are aware of no rule of law, and there is none, prohibiting the grant of an easement to take effect or to be enjoyed in the future, and that is this case. We have first a grant of the water-power upon the premises conveyed which necessarily made the raceway which carried the water across the grantor’s premises to the 23-acre tract a present easement in the land conveyed. Then we have the right to dig the raceway as deep and wide as may be necessary to run the mins now on the tract sold, and all other mills or machinery that may, at any time, be placed thereon, which creates a right or easement in the land of the grantor to be taken advantage of and enjoyed whenever the necessity of the case requires. In this there is nothing indefinite, nothing that calls for action upon the part of the grantee until the exigency contemplated in the deed shall arise. It is contrary to the general policy of the law to restrict the power of citizens to make any kind of contract which they may see fit to enter into so long as the proposed contract does not affect the morals or well-being of society to such an extent as to be against public policy; and it is also a well-recognized principle of legal construction that a contract will not be held void for ihdefiniteness when by considering it as a whole and taking into consideration the surrounding circumstances the true intent of the parties can be ascertained: Chitty, Contracts (17 ed.), 97, 98.

7-13. Let us now consider the circumstances under which the grant under consideration was made. The conveyance was executed on March 1, 1856, at a time when the now flourishing City of Eugene was a very small country village, which did not arise to the dignity of a corporation until seven years later. The land over which the raceway extended had not been platted, and was all owned by the grantor, who had a sawmill and gristmill upon the 23-acre tract now owned by defendants. Presumably there was water enough, and more than enough, to operate the machinery then employed, and it is evident from all the circumstances, as well as from the terms of the deed, that the parties had in mind at the time the construction of additional factories and mills upon the tract conveyed, and also contemplated the necessity for additional water-power to operate them when they should be so constructed. Hence it was natural that the purchaser should require from the grantor such a conveyance as would effectuate this intention. Plainly it was vital to the grantee in view of the contemplated development of the tract as a factory site that these facilities should be secured, and it was clearly to the advantage of the grantor, that until the occasion for widening the ditch arose, he should have the use of all the land lying adjacent to it which the present necessities of the grantee did not require. There was no method by which the exact future requirements of the grantee could be estimated or even approximated. As population increased and commerce extended the natural result would probably be to increase the demand for factory and mill sites, which would result in an increased demand for waterpower. The demand for manufactured products was then local, for the reason that navigation of the river was only seasonal and difficult, and a transcontinental railroad was a dream and a hope only realized many years after. In this condition of uncertainty as to the developments of the future the parties made the contract in question. The grantee wished to secure all that might be necessary for the possible future development of his power site. The grantor did not wish to grant more than such development might require, and not until it might be so required. Therefore they provided in the deed that the lateral extent of the easement should be measured by the growth of manufacturing industries upon the tract. That this was indefinite as to the extent laterally is in a sense true, but it is no more true than it is in contingent contracts and grants which are made every day and universally recognized by the courts. The principles here enunciated are not new, and have been applied in this state in a case where the grant of .an easement was much less specific than in the case at bar. In Salem Capital Flour Mills Co. v. Stayton Water-Ditch Co. (C. C.), 33 Fed. 146, 148, decided by Judge Deady, the grant was:

“The right of a canal-way through all and any lands then owned or occupied by [the grantors] in Marion 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.”

In Everett Water Co. v. Powers, 37 Wash. 143 (79 Pac. 617), there was a conveyance to defendants’ grantor of a right of way for a water-pipe line over the grantor’s land, and the right to divert the flow of water with a habendum to the grantee and his heirs and assigns forever. There was no time limit for the execution of the purposes of the grant. It was contended that the deed was void for uncertainty for that reason, and the court thus disposes of this Contention:

“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 evidence 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 certainly must be some present probability that, either at the time of the enlargement or within a reasonable time in the future, the increase of manufacturing establishments on the tract conveyed would fairly justify such enlargement.

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 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 originally occupied by Mm in accordance with the demands of the future, such enlargement will be upheld.

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 one which comes anywhere near supporting plaintiff’s contention, is Wood v. Saunders, L. R. 10 Ch. 582. The case is poorly reported and the opinion ambiguous. Saunders and Bruce leased a mansion and the grounds about it to Wood for the term of two years, with the option to purchase at the end of that period. The lessee was to have the privilege of the free passage of water and soil to the existing cesspools on other lands of the grantor in and through all sewers then constructed, or to he constructed, through such lands for the term of two years. The mánsion on the premises, called the “Priory House,” could not be enlarged during the period of the lease without the consent of the lessor, and in its then condition it could accommodate about 25 persons. Before the expiration of his lease Wood exercised his option, and purchased the premises, taking a deed which gave him “the free running of water and soil in and to the existing cesspools and in and through all the drains, sewers and watercourses, constructed or thereafter to he constructed, through the adjoining property of L. B. Knight Bruce.”

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 enjoin him. It was held that the deed should be construed as giving no greater easement than that existing under the lease, and that the right of drainage should be referred to the conditions existing at that' date when the Priory House accommodated only 25 persons._ The conclusion of the vice-chancellor seems to have been that the grantee was free to construct as many new drains as he wished, but that the aggregate flowage through them could not be increased beyond what it was at the time the deed was made.

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 act of the grantee in using a particular portion of the land as a way in the first instance, or the act of the grantee in the second instance in habitually ’and for a long period flowing a certain quantity of water, is a practical construction of the intent and extent of the grant; but in none of the grants involved in the cases cited does there appear a provision for a future enlargement of the right of the grantee such as appears in the case at bar.

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, and an absolute legal right to improve the banks of the ditch subject to the encumbrance created by Shaw’s conveyance to defendants’ predecessors.

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-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 make, made them at their peril. There is no evidence of acquiescence in the improvements by defendants further than that they did not actually object to them, and that they did not declare orally the claim which their deeds were asserting all the time.

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.

14-18. It is claimed that the easement granted is appurtenant to the 23 acres of land conveyed, and that a conveyance of a portion of the land reserving the water-power extinguishes the easement so far as these defendants are concerned; the argument being that these defendants are not themselves engaged in operating machinery on the tract, but are selling power to other persons who are operating such machinery and who are not demanding any increased power. The authorities cited do not sustain this position. A pure easement is one where the land of one person, which land is denominated the “servient tenement,” is subjected to some use or burden for the benefit of the lands of another person, whose lands are termed the “dominant tenement”; but there are many water rights and rights of way for ditches which do not strictly come within this definition and yet are called easements. For instance, one may purchase the right of way for a pipe-line to convey water for the purpose of selling it to such of the inhabitants of a particular town as may choose to buy, and yet, strictly speaking, there is no dominant tenement and the way is appurtenant to nothing. The same is true of a ditch constructed for the conveyance and sale of water to persons along the line who may desire to purchase, or for general sale to persons who desire it for power purposes. Eights of way for these purposes are in a sense easements, but there is no dominant tenement.

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 was the principal thing conveyed. The 23-acre tract described in the deed would be worthless if there were not water to operate the machinery, and the future development of the tract as a factory district would be impossible without the right to convey across the land of the grantor such additional water as would make such factories practicable. Conceding for the purposes of the argument that the terms of the deed made the water appurtenant to the tract conveyed, it does not follow that a segregation of the tract by sale of part of it destroyed the water right. Unless reserved in the conveyance, it would pass by the deed in such a proportion as the acreage of the tract sold bore to the whole 23 acres: Ruhnke v. Aubert, 58 Or. 6 (113 Pac. 38).

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 importance as to who owns the tract. The defendants own power as well as land, and it is inconceivable that it was the intention of the grantees of Shaw to cover the 23 acres with their own mills. The tract was principally valuable as a place where factories could be built and the water-power thereby find a market. The transmission or leasing of water-power to factories and mills is a common thing in the manufacturing portions of this country, and the prospective chance of doing so with profit in this instance was probably one of the incentives for the original purchase of this tract and water right from Shaw.

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 Have a profit in the lands they have conveyed or leased by furnishing water-power for the factories thereon. As they or their predecessors could have bought the water right without buying the land in the first instance, so they can sell the land without selling the water-power now, or they can sell the water right and retain the land; the only restriction being that whatever water-power is used must be used in factories erected on this tract, and that no more may be taken than is necessary for these purposes.

19, 20. The defendants have no right to use the ditch for the purpose of floating logs, timber or cordwood, without protecting its sides from the erosion that is necessarily caused by such use of it. Courts will not interfere with a change of use of an easement of this character unless it imposes an additional burden in some way upon the servient tenement, but it is clear that unless the banks of the ditch are protected, either by booming, riprapping with stone or bulkheading with timber, such use will add to the burden, and it should be prohibited until this is done.

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.

Mr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justice Benson concur.