Rodemeyer v. Merger

SHAW, J.

This is an appeal from a judgment in favor of defendant; the action being one wherein plaintiff sought to have defendant enjoined from interfering with an irrigating ditch extending over the latter’s land, through and by means of which plaintiff claimed the right to conduct a flow of water for irrigating his land.

As alleged in the complaint, defendant was the owner of a twenty-acre tract of land which, on January 31, 1912, he conveyed to plaintiff, together “with the tenements, hereditaments, easements and appurtenances thereunto belonging or appertaining”; defendant reserving therefrom, however, three-fourths of an acre out of the northeast corner of said tract. (We will designate the nineteen and one-fourth acres of land conveyed to plaintiff as “Tract 1,” and the three-fourths of an acre reserved by defendant as “Tract 2.”) At the time of conveying tract 1 to plaintiff, and for some two years prior thereto, there existed an open ditch or conduit extending along the entire east side of the twenty-acre tract, through and by means of which water was conducted for irrigating the same, of which fact plaintiff at the time of Ms purchase had knowledge. After purchasing tract 1 plaintiff, without objection from defendant, and up to June, 1913, used that part of the ditch extending over and along the east side of tract 2, so reserved by defendant, as a means for conducting a supply of water to tract 1 for irrigating the same and the growing crops thereon, as defendant had done when owner thereof. No other means exist whereby plaintiff can obtain a supply of water, and irreparable injury will follow his failure to obtain such supply. In June, 1913, defendant obstructed the flow of water in the ditch extending across tract 2 and connecting with plaintiff’s ditch and land, and refused to allow plaintiff to convey water through the same.

[516]

In his answer defendant denied that he conveyed to plaintiff any easement or right to convey water across tract 2 so reserved by him or to nse the ditch thereon, and, on the contrary, alleged that plaintiff agreed that defendant should retain in himself the exclusive right to and use of the ditch on tract 2, together with the right as well to run water through the ditch over tract 1 sold to plaintiff. "He also alleged that the conduit in question now existing along the east side of tract 2 “is not the same ditch used by defendant in irrigating the said twenty acres of land prior to the time of the sale of the property herein to plaintiff,” but that prior to the sale of said land to plaintiff there had been no permanent ditch of any kind upon said tract, and that the ditch now located along the east side of tract 2 was, and is, and has been, a temporary ditch, and that the same has been plowed in and filled up many times by this defendant with the knowledge of the plaintiff.