15 P.2d 340 | Utah | 1932
In this suit plaintiff by two causes of action sought to restrain defendant (a) from maintaining on his land a cement dam or headgate thereby causing the waters of Kay's creek to back up and overflow its banks and flood a portion of plaintiff's land; and (b) from maintaining a row of willow trees along the boundary common to plaintiff's land and defendant's land, and from permitting the roots and branches thereof to extend into and over plaintiff's *411 land. Plaintiff also prayed for damages on each cause of action. Defendant's defense to the first cause of action was set out by way of counterclaim (designated by him as cross-complaint) wherein he alleged that he and his predecessors in interest as owners of his land had long ago established an easement in plaintiff's land to back up the water in Kay's creek and to flood one-fourth acre of plaintiff's land adjacent to the creek by the maintenance of the dam or headgate, and prayed the court to quiet his title to such easement and restrain plaintiff from interfering therewith. Defendant's defense to the second cause of action was that the row of trees in question marked the common boundary line between the two farms and that the trees were, and for forty years had been maintained by the parties as a common boundary line fence.
The case was tried to the court without a jury. After the introduction of all the evidence the trial judge viewed the premises and then made findings against the plaintiff and in favor of the defendant on all the issues, dismissed plaintiff's complaint, and entered judgment quieting title in the defendant to an easement to hold back the waters in Kay's creek as they pass through plaintiff's land and to flood one-fourth acre of plaintiff's adjoining land, and enjoined plaintiff from interfering with such easement. From this judgment plaintiff appeals and has assigned twenty-four alleged errors. The assignments are directed to three questions which may be stated as follows: (1) That defendant's counterclaim fails to state a cause of action; (2) that the evidence does not support the findings of the trial court that an easement had been established by defendant as claimed, because of a break in continuity of use of the alleged easement by reason of: (a) change in the location of the dam; (b) the construction of a flume across Kay's creek in the vicinity of the dam to carry water from the north branch of Kay's creek through the Weaver Lane Ditch to irrigate defendant's seventeen acres of land; and (c) increase in the burden of the easement by the construction of *412 a cement dam some five or six inches higher than the old earthen dam; and (3) that the finding that black willow trees constitute a boundary line fence mutually agreed to by the parties is not sustained by but is contrary to the evidence. The objection that the counterclaim fails to state a cause of action is raised for the first time on appeal. No demurrer was filed and no objection made to the introduction of evidence on this ground.
It is contended the counterclaim fails to state a cause of action because it is not therein alleged "that the easement is under a claim of right nor that it was adverse to appellant nor that it was open and notorious." These are all necessary elements in the establishment of an easement 1, 6 and must be proved to entitle one claiming an easement to prevail. There is evidence in the record supporting each and all of these elements. The use that will give a prescriptive right to maintain a private nuisance, such as the flooding of another's land must be adverse, under claim of right, uninterrupted, and continuous for twenty years, with the knowledge and acquiescence of the party whose right is invaded.North Point C.I. Co. v. Utah S.L. Canal Co.,
Appellant complains that the findings of the court with respect to the establishment of a right of easement in defendant to hold back the waters in Kay's creek and flood one-fourth acre of land adjoining thereto by reason of the maintenance of a dam in Kay's creek on defendant's property is not 7, 9 supported by, but is contrary to, the evidence. Plaintiff and defendant are owners of adjoining farms. Plaintiff's farm adjoins defendant's land on the northeast. Kay's creek arises in the mountains in a general easterly direction from the land in question and the center branch of the creek referred to throughout the case as Kay's creek courses in a southwesterly direction through approximately the center of both farms. At a point on Kay's creek about twenty feet from the common boundary line, the defendant maintains a cement dam which was constructed in 1912. This structure took the place of an earthen dam which had been used for many years to enable defendant to take irrigation water from Kay's creek to irrigate seventeen acres of land lying to the south and east of the creek. This earthen dam was placed in the stream as early as 1880 and was used continuously until it was replaced by the cement dam in 1912. Flashboards are placed in the dam and the water diverted thereby for about eight hours each week *415
during the irrigation season. When the flashboards are in the dam, the water is backed up in the channel of Kay's creek as it crosses appellant's land and overflows the banks and inundates a small area near the common boundary between the properties. The amount of land flooded since the cement dam was constructed is claimed by appellant to be three acres. A survey of the area was made by an engineer which shows the land flooded to be .25 of an acre. It is only this one-fourth acre, described by metes and bounds in the defendant's counterclaim and in the court's findings and judgment, to which defendant claims he has an easement. One of the grounds on which plaintiff attacks the findings of title to an easement in defendant is that there has been an enlargement of the area flooded by the construction of the cement dam five or six inches higher than the old one. The shoulder of the new cement dam is five or six inches higher than the earthen dam it replaced. It does not follow, however, that the easement on plaintiff's land has been enlarged by reason of such construction. While witnesses for plaintiff testified that a larger area is now flooded than heretofore, the testimony of defendant's witnesses and the defendant himself is to the effect that no larger area is now flooded than before 1912. Of course, defendant cannot by a new structure enlarge the easement and flood more of plaintiff's land than he did prior to the construction of the new dam. An easement acquired by prescription is always limited to the use made during the prescriptive period.Stephens R. R.L.S. Co. v. U.P.R. Co.,
It is also claimed by plaintiff that there was a break in the continuity of use of the dam. There is testimony that a flume was constructed by a predecessor in interest of defendant about the year 1900 for the purpose of carrying water from the Weaver Lane Ditch across Kay's creek immediately above 10 the dam and discharging into the ditch which had carried the water from the dam to defendant's seventeen acres of land located southeasterly from Kay's creek. Plaintiff attempted to prove that this had been used to some considerable extent, but we think it is satisfactorily shown by the evidence that this was a temporary or experimental use merely, and that it was not intended to and did not supersede or take the place of the dam. The person who constructed and used tht flume testified that it was washed out in 1900, the same year it was constructed, and had never been replaced. There is no fair preponderance of evidence to show an abandonment by either the defendant or his predecessors in interst of the use of the dam or of the right of easement claimed by them to flood plaintiff's land when such dam was used.
For a second cause of action plaintiff alleged that along the boundary common to plaintiff's and defendant's lands, *417 beginning at the northeast corner of defendant's land and running to Kay's creek, the defendant many years ago planted and has since maintained willow trees dividing plaintiff's land from defendant's land; that the branches and roots have spread so that the trees have encroached upon plaintiff's land for a distance of about fifty feet rendering the land upon which the roots and trees have encroached valueless; and that the defendant had carelessly and negligently permitted the trees and the roots to spread and grow and has at all times refused to remove the same or confine them to his own land. The prayer is for damages and that defendant be enjoined and restrained from maintaining the willow trees along the boundary common to plaintiff's and defendant's lands. Defendant denied the allegations of plaintiff's complaint, denied exclusive ownership of the willow trees, and alleged that the trees are owned jointly by plaintiff and defendant, and that the parties and their predecessors in interest had acquiesced in the trees remaining where they are as a fence or barrier between the two parties. The court made findings of fact that the row of trees had for more than thirty-five years served as a common boundary fence between the parties and had been acquiesced in by the parties and each of them as such fence, and that the defendant did not plant the trees or maintain them and had not committed any nuisance thereby, or carelessly or negligently permitted the roots and branches to spread, and refused to remove them, but on the contrary had always stood ready and willing to joint with plaintiff in removing them and substitute a post fence.
Trees standing on a boundary line between adjoining owners are the common property of both owners who are tenants in common as to the trees. Scarborough v. Woodill,
The judgment of the district court of Davis county is affirmed with costs to respondent.
CHERRY, C.J., and STRAUP, ELIAS HANSEN, and EPHRAIM HANSON, JJ., concur. *419