76 P. 1023 | Cal. | 1904
The case is here on appeal from a judgment on an agreed statement of facts. Plaintiffs are, and have been for many years, the owners of the premises described in the complaint, situated in Santa Rosa Road District, Sonoma County. Along the northerly aide of said lands there is a public highway which has been in use as such for more *238 than thirty years, and occupies a strip of land twenty-five feet wide, and the center line of the road is the north boundary-line of plaintiff's land; defendants are the board of supervisors of said county and the ex officio road commissioner of the said road district; on May 27, 1903, defendants, in their official capacity, without the consent of plaintiffs, went upon said strip of land, erected machinery for the purpose of boring a well on said highway about four or five feet from the southerly line thereof, and where said highway ran along and over plaintiffs' land. This well was six inches in diameter, and was bored to the depth of forty-four feet, and an iron pipe or casing placed therein, and defendants erected over said well a windmill and pump and water-tank. This well was bored and the pump and tank were erected "for the purpose of obtaining water from said well to sprinkle and keep in repair said public road"; the plant was so erected as not to interfere in any way with the free use and enjoyment by the public of said highway; "said highway was not out of repair at the point where said well was bored, . . . and said well was not bored for the purpose of getting soil to repair said highway, but was bored solely for the purpose of getting water to sprinkle said highway and thereby to prevent the same from getting out of repair and to render it more fit and convenient for public use." The water "sought to be taken from said well is such as flows or percolates through the soil of said premises at a depth of from twenty to forty-four feet from the surface of the ground." It is further stipulated that the defendants "threaten to and will operate said pump, windmill, and waterworks, and take and remove from said well large quantities of water, which flows and percolates through the side of said premises into said well, and use the same upon said highway, unless restrained by injunction of this court."
There is no stipulation as to whether plaintiffs were making any use of the percolating waters subterranean of their land, or as to the damages alleged.
Plaintiffs appeal from the judgment given in defendants' favor.
Section 2631 of the Political Code reads: "By taking or accepting land for a highway, the public acquire only the *239 right of way, and the incidents necessary to enjoying and maintaining the same, subject to the regulations in this and the Civil Code provided."
This is but the formulation of the general rule laid down in the books and decided cases when treating of highways as easements, which they are.
Speaking of the rights retained by the adjacent owner, Parker, C.J., in Tucker v. Tower, 9 Pick. 109,1 said: "It is too clear to require any discussion that the proprietor of land over which a public highway has been laid retains his right in the soil for all purposes which are consistent with the full enjoyment of the easement acquired by the public." The question here raised has, in one form and another, been before the courts frequently, and it will be found that the decisions invariably turn upon what may reasonably be said to be "incident" to either the construction, repair, or maintenance of the road constructed over the right of way. The decided cases (and they are numerous) are illustrative of the principle declared in the code, but in none of the cases cited, and in none we have been able to find, has it been held that the easement or the dominant tenement draws to it the right, as an incident, to bore or dig wells along the right of way for the purpose above stated.
It was said in Burris v. People's Ditch Co.,
In North Fork Water Co. v. Edwards,
If we are to hold that the county may dig or bore wells, and to any depth necessary to obtain water at convenient distances along the highways, for the purposes named, it must be because it has the right as an incident to the principal object, which is to establish a highway, and as necessary to that object. And the right would not depend on the fact that the owner of the servient tenement was not at the time using the water or contemplating its use. Should he find it necessary to use the percolating waters in his land adjacent to the highway, and should it be found that the wells in the highway diminished his flow of water materially, the county would still have the right to a just apportionment of the water if respondent's contention be sound, and if the percolating waters pass as incident to the easement. In other words, it must be held that the percolating waters under the surface of a highway are acquired as incident to the easement, and are a part of the grant or use, at least to the extent needed to sprinkle the highway, and that to that extent these waters do not belong to the owner of the servient tenement. A very small mileage of the public roads of the country are sprinkled with water as a means of preservation. Doubtless such use of water on some roads is desirable in maintaining them and adds to their convenient use, but it can hardly be said generally that the sprinkling of roads is necessary to their maintenance.
In Town of Suffield v. Hathaway,
This statute indicates that the legislature deemed it necessary to provide some further authority for sprinkling the highways than was given in section 2631 of the Political Code. The statute referred to at least would seem to corroborate the view we have taken of that section.
The court said in Robert v. Sadler,
In the case cited pits were dug for gravel with which to cover the roadway, and for this reason defendants claim that the case is not in point. But would it have been less so if the gravel had been obtained by sinking shafts and mining for it in such manner as not to interfere with the surface of the roadway? The question always recurs, What incidents pass with the easement, and what rights go as incidents? The diligence of counsel (and the briefs on both sides cite cases copiously), aided by our own research, has failed to disclose a case where it has been held that the easement brings with it the right to penetrate the earth along the highway to an indefinite extent for materials with which to construct and maintain it.
Upon the facts as stipulated we think the judgment as entered should be reversed, and judgment should be for the plaintiff as prayed for in the complaint, restraining defendants "from taking, apporpriating, or removing the percolating *243 waters from plaintiffs' said lands," described in the complaint. It is accordingly so advised.
Cooper, C. and Harrison, C, concurred.
For the reasons given in the foregoing opinion, the judgment is reversed, with directions to enter judgment in favor of plaintiffs as prayed for in the complaint, restraining defendants from taking, appropriating, or removing the percolating waters from plaintiffs' said lands, described in the complaint.
McFarland, J., Lorigan, J., Henshaw, J.