Jersey Farm Co. v. Atalanta Realty Co.

LENNON, P. J.

The plaintiff in this action sought to quiet its title to certain easements consisting of: 1. The right to maintain and use a reclamation levee erected and situated on the land of the defendant; 2. The right to have surface and seepage water flow through drainage canals situated on the land of the defendant; and, 3. The right to maintain and use a pumping plant, also situated on the land of the defendant.

Plaintiff’s cause of action proceeds entirely upon the theory that its right to the claimed easements had its source in their

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obvious and permanent user by the owner of the original tract upon which they were constructed and erected, and that upon the severance of the unity of title of the original tract such right by implication and operation of law vested in plaintiff’s predecessor in interest, and ultimately rested with the plaintiff.

The answer of the defendant, while denying the material allegations of plaintiff’s complaint, pleads the special defense of a release of the claimed easements solely as the result of a quitclaim deed made and executed after the severance of the unity of title by the owner of the dominant tenement, plaintiff's predecessor in interest, to the owner of the servient tenement, defendant’s predecessor in interest.

In its findings of fact the trial court declared that “said levee, canals, ditches and pump were constructed and installed as one general uniform system for the reclaiming and cultivating of said land, and were constructed and installed at groat expense; that said, or some other levee, canals, ditches, and pump constructed as one general system for reclaiming said land and cultivating the same, and the whole thereof are absolutely indispensable for the use and cultivation thereof.” The findings of the trial court, however, upon the issue of title to the claimed easements were made in favor of the defendant. Judgment was accordingly entered in favor of the defendant from wdiich, and from an order denying a new trial the plaintiff has appealed. Heretofore one phase of the case was presented to, and passed upon by the supreme court upon an appeal by the defendant from an order of the court below granting the plaintiff’s prayer for a preliminary injunction restraining the defendant from interfering with the repair and maintenance by the plaintiff of the levee, drainage canals, and pumping plant in controversy.