Little v. Roop

RICHARDS, J.

This is an appeal by defendant from a judgment in favor of the plaintiffs for the sum of $540

[90]

in an action brought to recover damages for the alleged conversion of personal property.

But one question need be considered, namely: Did the plaintiffs have such an interest in the property alleged to have been converted as could furnish a foundation for the present action ?

It appears from the record that both of the plaintiffs and the defendant were severally the owners of parcels of agricultural land in a tract known as Grand View Heights Colony, deriving their title either directly or through mesne conveyances from a common grantor, the Garden City Bank and Trust Company. The defendant’s parcel was described as the south half of lot 3, and upon it was situated a well together with a pump, engine, and casing used in connection therewith and firmly attached to the realty. The respective deeds under which the plaintiffs each deraigned title contained the following language immediately after the description of the land conveyed:

“Together with the perpetual water right to . . . miner’s inches of water from that certain well now located on Lot 3 in Block B of Grand View Heights Colony, said miner’s inches of water above referred to to be equal to 1/50 part of one cubic foot per second continuous flow; also the right to lay and maintain pipes or conduits to convey water in the most direct course practical over the property of the party of the first part from the well above mentioned to the land herewith conveyed.”

(In one case the number of miner’s inches of water granted was two and in the other five.)

For several years the plaintiffs and the defendant each took water from the said well, using the pump, engine, and casing for that purpose, and taking it at such times as were mutually convenient. The immediate expense of pumping the water was borne by the party taking it, and the general expense of maintaining said machinery was borne in agreed proportions. On January 16, 1918, the defendant dismantled the pump, engine, etc., and sold them; and the plaintiffs, claiming to be the owners of a three-fifths interest in said machinery, brought this action of conversion to recover that proportion of the proceeds of said sale. In support of the judgment in their favor it is their claim that the clause in their respective deeds above quoted should be