Allen v. San José Land & Water Co.

Garoutte, J. This is an appeal from a judgment upon the pleadings.

The only material facts alleged in the complaint, and not denied by the answer, are: 1. The ownership of the [139]land; 2. The defendants have placed pipe upon plaintiffs’ land preparatory to laying the same permanently in a ditch across said land.

Defendants’ answer alleges that “it is the owner of a certain ditch across plaintiffs’ land used for the purpose of carrying water to its (defendants’) land for the purpose of irrigation; that the pipes to be laid are of no greater carrying capacity than its said ditch, and when so laid by defendants, will render the use of the easement less burdensome to plaintiffs’ servient estate, and more convenient to defendants; that no damage has been done to plaintiffs’ land, and no damage or trespass threatened or intended.” Defendants also set out the facts showing title to the ditch and water by adverse user.

Upon these facts, judgment was rendered for plaintiffs for a perpetual injunction restraining the defendants from laying the pipe, and this is an appeal from such judgment.

The principal question in this case is, whether an easement to run water over plaintiffs’ land in an open ditch is satisfied by carrying the water in a closed pipe laid on the bottom of such ditch and then covered to the depth of thirteen inches with dirt, provided that such change in the easement would benefit the servient estate and convenience the dominant estate.

After a careful examination of many authorities, we are led to conclude that the allegation of the answer, “that the alteration in the mode and manner of using the easement will be less burdensome to the servient estate and more convenient to the defendant,” adds no strength to defendants’ position, and that such fact is never a material element in a case where it is insisted that the alteration is so substantial as would result in the creation and substitution of a different servitude from that which previously existed.

In speaking of this question of easements in Merritt v. Parker, 1 N. J. Eq. 466, the chief justice said: “No one has a right to compel another to have his property improved in a particular manner; it is as illegal to force [140]