Scott v. Henry

RICHARDS, J.—This

appeal is from a judgment in the plaintiffs’ favor in an action brought to enjoin the defendant from interfering with the plaintiffs’ alleged right to maintain and use a water ditch upon and across the defend

[668]

ant’s land. The plaintiffs, in their second amended complaint, based their claim of right to maintain and use said ditch in common with each other and with the defendant upon their ownership of an easement alleged to have been acquired by plaintiffs from the predecessor of the defendant in the ownership of the servient tenement, and also by prescription. The defendant in his answer denied each of these sources of title in the plaintiffs and upon the issues thus joined the cause went to trial. The trial court made its findings of fact in plaintiffs’ favor, wherein it found that the plaintiffs had acquired their ownership in said easement before the defendant became the owner of the land; and also found that the plaintiffs had acquired a prescriptive right to said easement by open, peaceable, continuous, uninterrupted, and adverse maintenance and use of said ditch for a period of more than five years prior to a date antedating the commencement of the action. From the judgment based upon these findings the defendant prosecutes this appeal.

The first contention of the appellant is that the deeds by which the plaintiffs purported to have acquired their rights to construct, maintain, and use said ditch from one Papalian, the grantor of the servient tenement to the defendant, were nullities, for the reason that in neither of said deeds were the lands subsequently conveyed by Papalian to the defendant correctly or at all described. The error in description in one of these deeds consisted in describing the lands of the servient tenement as situated in the

northeast

instead of the

northwest

quarter of the government section in which the lands of the defendant are in fact located; and in the other deed consisted in locating said lands in the wrong township altogether and in a section six miles east of the defendant’s said location. When the plaintiffs offered these deeds in evidence respectively the defendant objected to their introduction as muniments of title to the easement in question, whereupon the plaintiffs conceded, and the court ruled, that as such they were not admissible. They were then offered by the plaintiffs in connection with the testimony of Papalian, the grantor therein, to the effect that he intended by these conveyances to give to the plaintiffs the right to said easement upon and over the particular land in question which he then did own and not upon and