De Weber v. Cassiday

SHAW, J.

The purpose of the action was to obtain a decree declaring plaintiff the owner of an undivided one-half interest in and to a certain well wherein water had been developed, together with a like interest in the pump and windmill used in raising the water therefrom and pipe-line conducting the same for use upon plaintiff’s premises, and to enjoin defendant from interfering with such use.

Judgment went for defendant, from which, and an order denying a motion for new trial, plaintiff appeals.

It appears that in April, 1898, Prank Ransom and his wife were the owners of the northeast quarter of the southwest quarter of section 26, and Ira Winget was the owner of the west half of the southeast quarter of said section; that prior to April 11, 1898, the Ransoms and Winget had constructed a well located, as they believed, upon said northeast quarter of the southwest quarter of said section 26 so owned by the former, but which, in fact, as found by the court, was located on the southeast quarter of the northwest quarter of the section, owned by other parties. After the supply of water was developed in the well it was equipped with appliances for raising the water and a pipe-line constructed leading therefrom to the land so owned by Winget. Thereafter, on April 11, 1898, the Ransoms executed a deed whereby they remised, released and quitclaimed to Winget “the undivided one-half interest in that certain well of water and the windmill, tank, pump, pipe, and all appurtenances thereunto attached or in any way connected therewith,

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needful for pumping and conveying water to the present home and lands of the said party of the second part (Winget), with which said plant is now connected, and which said well and pumping plant is located at or near the northwest corner of the northeast quarter of the southwest quarter of section 26.” From thence for a period of seven or eight years, to a time when this well was destroyed by caving in, Winget obtained water from this well and exercised the rights of a tenant in common therein. When the well caved in the further use thereof was abandoned and Mrs. Burbridge, the then owner of the Ransom land, at her own expense, caused to be constructed thereon a new well, located some thirty-five feet from the old well, and in equipping the same she removed from the old well the windmill and pump, installing them in the new well. Plaintiff has acquired title to the Winget land, and defendant is now the owner of the Ransom land.