Ortman v. Dixon

Baldwin, J. delivered the opinion of the Court Terry, C. J. concurring.

Bill filed for an injunction against the defendants, to restrain them from turning the waters of a stream, called Mill Creek, into a ditch constructed by them, known as Ditch, Mo. 3, as marked on the map accompanying the pleadings.

Two main questions arise on the record : 1st. Can a water right be conveyed by a bill of sale not under seal ? and, 2d. Has the prior locator of a water privilege the right to change the point of diversion from the main stream under the facts hereafter stated ?

First—We do not consider that it is at all necessary to hold that a water right, so as to pass the legal title from grantor to grantee (the premises being in adverse possession), must be conveyed by deed; for here the right of the water was appurtenant to, or connected with, a ditch. Any executed contract which passed the equitable right to the ditch, and the use of the water as the property of the grantee, is enough to assure to him the rights for which he stipulated as against an adverse Claimant-Possession i-tself would be enough, and surely that possession is no worse for being associated with an equitable right. The difference between instruments sealed and unsealed is at least, at this day, a mere arbitrary and unmeaning distinction made by technical law, unsustained by reason; and, though the Courts may have no right to abrogate what the law has established, even when the rule be senseless, yet we will not go out of our way to give effect to such distinctions, when the law does not clearly so require. But this distinction between sealed and unsealed papers has no force, as a general rule, except in a particular class of cases to which this does not belong. Where an instrument touching title to the realty is not under seal, the strict legal title, at common law, was not conveyed; but the equitable [37]title might be conveyed by an instrument not sealed, if otherwise sufficient; and this equitable title, if accompanied by possession, is sufficient, under our system, to give a right of possession. Indeed, we do not see, under our system of practice, which recognizes none of the old forms of action, but which was designed to afford a plain, unembarrassed remedy upon the particular facts of each case, why an action cannot be maintained upon any title, legal or equitable; or upon an instrument sealed or unsealed, which entitles the plaintiff to the possession of the property in dispute as against the defendant. But this is a proceeding in equity, and in that form an equitable title is as good as a legal title, as a matter for defense or recovery.