155 P. 184 | Or. | 1916
delivered the opinion of the court.
According to the report of the testimony there is but little dispute about the facts. The controversy hinges on the construction to be given to a deed from the common grantor of the parties under which the defendants claim. In 1893 J. O. Latourell was the owner
“Also enough water from the natural flow of Latourell Falls Creek to be taken above the large falls, to fill and maintain a continual flow through a four-inch pipe, at all seasons of the year. Also ten feet square of ground above the Latourell Falls upon which to build a tank to feed said pipe and a strip of ground ten feet wide from where said creek is tapped to said tank and from said tank to where said pipe-line leaves the lands of J. C. Latourell, and the right to enter upon adjacent lands at all times to erect, maintain, repair and operate said pipe, flume or aqueduct and tank or reservoir.”
By mesne conveyances the plaintiff became owner of the remainder of the original tract on June 21,1911. It is to be determined how the excerpt above set out affects the plaintiff’s holding. In purchasing, he relied upon an abstract of title and not upon a search of the records. In the abstract no mention was made of the deed to Maffet. The plaintiff declares that he had no actual notice whatever of the quoted portion of that deed. The defendant Maffet conveyed to the defendant Joseph an undivided half interest in the privilege
“An easement is defined to be the right which one man has to use the land of another for a specific purpose.”
In Ruhnke v. Aubert, 58 Or. 6, 10 (113 Pac. 38, 40), Mr. Justice McBride explicitly states that:
“The right to take or divert water from the land of another constitutes an easement. ’ ’
In that particular instance the water was to be used to irrigate a certain tract of land to which it was indeed appurtenant under the doctrine of that case, but it was not intended to say that in every instance water taken out upon the land of one person should necessarily become inseparably annexed to another parcel of realty. If it were .the hard-and-fast rule that an easement for the diversion of water must indispensably be made appurtenant to same dominant estate, it would utterly defeat all projects for appropriation of water for sale and general distribution to the public, for often such appropriators do not own land themselves, but are only' purveyors of water to those who do have real property. We hold, therefore, that the defendant Joseph is the owner of an undivided half of the water
“Any description by which the property might be identified by a competent surveyor, with reasonable certainty, either with or without extrinsic evidence, is sufficient. ’ ’
There, the written agreement for the sale of lands referred to them as situated on “Sauvies Island,” and known as the “Jackson Ranch,” and more particularly
“Also enough water from the natural flow of Latourell Falls' Creek to be taken above the large falls, to fill and maintain a continual flow through a four-inch pipe at all seasons of the year.”
By necessary implication enough would go with those words to enable the grantee to enjoy the privilege conferred, even if nothing else was said. But the language continues:
“Also ten feet square of ground above the Latourell Falls upon which to build a tank to feed said pipe and a strip of ground ten feet wide from which said creek is tapped to said tank and from said tank to where-said pipe-line leaves the lands of J. C. Latourell, and the right to enter upon adjacent lands at all times to erect,*315 maintain, repair and operate said pipe, flume, or aqueduct and tank or reservoir.”
There is no designation of metes and hounds and no data or reference to any other source given by which such delimitations can be ascertained and applied to the ground thus mentioned. Considered as an executed contract for the sale of land to which the excerpt alludes, the description is so indefinite as to be void in the absence of any further agreement of the parties. Nothing is suggested and no reference is made to records as in House v. Jackson, 24 Or. 89 (32 Pac. 1027), whereby extrinsic evidence to explain this description could be supplied. The only use for the dimensions given is to restrict the size of the structures used in transporting the water. It follows that as a conveyance of the land itself above the falls the instrument is void, and does not pass title as it did to the premises described by metes and bounds with reference to government surveys.
“An artificial channel for a stream of water to be applied to some industrial use.”
Plumes for conducting water to mill-wheels are open or covered passages formed of boards, planks or stone from which the water falls upon the wheel. Other lexicographers give substantially the same definition of the term. In Joseph Milling Co. v. City of Joseph, 74 Or. 296 (144 Pac. 465), we are told of what is termed a “barrel flume.” The structure, therefore, is not necessarily of wood or an open box and, as applied to the instant case and the clause under consideration, it would not be doing violence to the vernacular to say that the designation of “flume” might be applied to a pipe conveying water upon or above the surface of
“Subject to existing rights all waters within the state may be appropriated for beneficial use, as herein provided, and not otherwise; but nothing herein contained shall be so construed as to take away or impair the vested right of any person, firm, corporation, * * to any water.”
The section was amended as shown by the Laws of 1913 at page 273 in a manner not affecting the language quoted. This section does not give the right to private individuals to invade the premises of any other person for the purpose of diverting water from a stream. It is only by the power of eminent domain, which has never yet been granted to any individual for private purposes, that such a prerogative can be exercised, and then only for public use. To allow the defendants to do so in this instance in excess of the terms of their grant would be to take the property of one man and give it to another. Their rights on the premises of the plaintiff are measured by the terms of the Latourell deed, and, having been given this inch, they cannot take the ell they desire.
The conclusion is that the defendants must be restricted in their enjoyment of the water right to the use of a four-inch pipe introduced into the stream át a point above the falls no farther than is reasonably necessary to give access thereto for the purpose so as to take .of the natural flow, without the aid of dams or
The decree of the Circuit Court will be modified accordingly. Modified.