97 P. 26 | Utah | 1908
The defendant Stevenson is the owner of 157 acres of land situate in Bbx Elder county. The other defendants are his lessees. In 1890 the Bear Lake & B-iver Waterworks & Irrigation Company, for the purpose of “constructing and maintaining thereon an irrigation canal or ditch to conduct water from the Bear Lake and Bear river” for the distribution of water for irrigating purposes, condemned a strip of land 150 feet in uniform width and about a half •mile in -length across the middle of Stevenson’s land. The canal proper, as constructed, is about sixty feet wide. During the irrigation season a stream of water courses the canal about sixty feet wide and about five feet deep. The plaintiff succeeded to all the rights of the condemner. Along the banks of the canal, and within the 150-foot strips, a kind of
On appeal the plaintiff urges that the finding and conclusion that the maintenance of the fences was not inconsistent with a reasonable use of the plaintiff’s easement is unsupported by the evidence and is against law. The evidence tends to show: That, unless the defendant’s land is inclosed by a fence, live stock from adjoining farms and from the highway will stray and feed on his land and damage his crops; that, unless he is permitted to maintain the fences, as constructed, he will be obliged to construct a line of fences parallel with and on each side of the canal for its* entire distance. The evidence further tends to show that the gates maintained by defendants are easily opened and elosed and afford ready ingress and egress to and from the condemned strip of land. The fences in no manner in
It is well settled tbat
“The owner of the servient estate may erect fences along the sides of a way, hut not across the way so as to entirely obstruct it. In the case of a ditch or artificial water course, he may erect fences across the course, provided the owner of the easement does not have an open right of way along the same. The grant of a way without any reservation of a right to maintain gates does not necessarily imply that the owner of the land may not do so. Unless it is expressly stipulated that the way shall he an open one, or it appears from the terms of -the grant or the circumstances of the case that such was the intention of the parties, the owner of the servient estate may erect gates across the way, provided they are so located and constructed as not unreasonably to interfere with the right of passage.” (14 Cyc. 1212.)
"VVe are of tbe opinion tbat from tbe evidence it is not made to appear tbat tbe acts complained of so conclusively show an interference witb tbe reasonable enjoyment by plaintiff of its easement as to preclude a contrary finding.
Tbe judgment of tbe court below is therefore' affirmed, ■witb costs.