Tone v. Tillamook City
114 P. 938
Or.
1911
Check Treatment
Mr. Justice McBride

delivered the opinion of the court.

1. The principal question to be considered is the nature and extent of the covenants in the conveyance from Lowry and wife to the defendant. Whether a reservation or covenant in a deed shall be construed to create an easement in gross or one appurtenant to the land is a matter to be deduced (1) from the terms of the instrument itself; or (2), if that is ambiguous, then from a consideration of all the circumstances surrounding its execution, always bearing in mind the rule that courts should construe an instrument to convey an easement appurtenant, rather than one in gross. 10 Am. & Eng. Enc. Law (2 ed.) 405; Ruhnke v. Aubert, 58 *385Or. 6 (113 Pac. 39), and cases there cited. In the case at bar the covenants of the defendant are a part of the consideration for the land. Indeed, it is fair to assume that they constitute the only consideration beyond the nominal sum of $1.00 recited in the deed.

2. In this State the word “heirs” is not necessary to create an estate in fee.

3. Such a covenant operates as a re-grant of a portion of the estate already conveyed, its effect, as we held in Ruhnke v. Aubert, was to convey to Lowry and wife an assignable interest or right, unless it appears by necessary implication that a less estate was intended. Section 7103, L. O. L.

We find nothing in this conveyance that either by express terms or by necessary implication indicates that the grantors were to take merely a temporary personal right to the water which was to be conveyed across their premises. The burden upon their land was perpetual, and, as we have held lately in Portland v. Metzger, 58 Or. 276 (114 Pac. 106) includes the right on the part of defendant to erect telephone poles and string wires from the city to the headworks; to prohibit the grantor from erecting buildings upon the strip granted; to allow the servants of the city, in the necessary repair of its pipe line, to pass along the strip on foot or in wagon; and to dig the soil or lay additional pipes. Such a servitude must necessarily affect, to some degree, the free use and value of the property, and will do so to a greater extent as the city increases in population and the necessity for more frequent and extensive use of the right of way consequently increases.

4. These considerations would indicate the probability of an assignable estate being created rather than to necessarily imply that something less than that was intended. If the easement were assignable, the depreciation in the *386value of the estate caused by the servitude imposed upon it would be to some extent, and perhaps entirely, recouped by the increased value added to it by the privilege of obtaining water conveniently. The suggestion that in case the court should hold that the conveyance in question creates interest appurtenant to the land each subsequent purchaser of a parcel of it will be entitled to the whole quantity of water reserved to the grantors is unsound. The right is limited to a particular quantity, and, unless subsequent conveyances otherwise provide, the purchaser of any fraction of the original quantity will be entitled to such a proportional quantity of the water reserved as his fraction of the land bears to the whole tract: Ruhnke v. Aubert, 58 Or. 6 (113 Pac. 39).

5. Also the suggestion that the covenant was one beyond the authority of the city to make, and is void, therefore cannot be considered so long as the city retains the fruits of the contract. The covenant that the grantors which we have already held includes their assigns were to have the right to take free a certain quantity of water was a consideration for the deed, perhaps the main consideration, and, until defendant abandons or offers to reconvey the right of way granted, it cannot be heard to say that its contract was ^lltra vires, unless there is shown some provision of its charter absolutely or by necessary implication prohibiting it from so contracting. We do not find such provision in the charter of the defendant.

6. The power to provide a water system is not governmental nor legislative in its character, but strictly proprietary, and the city, when engaged in prosecuting such an improvement, is clothed with the same authority and subject to the same liabilities as a private citizen. This has been held by this court in an opinion by Mr. Justice Bean, which has become a leading case on this subject: *387Esberg Cigar Co. v. Portland, 34 Or. 282 (55 Pac. 961: 43 L. R. A. 435: 75 Am. St. Rep. 651).

7. There is no question of the city granting a perpetual franchise involved in this case. The city needed the right of way and took it, subject to the burden of this easement. It did not obligate itself to perpetually convey water through its pipes, and may at any time relieve itself from the obligation of doing so by taking some other route than that across the plaintiffs’ land. While regulations as to the manner of using the water and management of the business may be prescribed by ordinance or resolution, the legal position of the city is that of a proprietor, and we see nothing in the construction which we have given that interferes with any regulation that it may make unless it attempts to evade its contract.

The decree of the circuit court is affirmed.

Affirmed.

Mr. Justice Burnett took no part in this decision.