Joseph v. Ager

McFarland, J. This action was -for an injunction to restrain defendant from interfering with a certain ditch dug by plaintiff on the land of defendant, and for damages alleged to have been caused by the filling up of part of said ditch by defendant. The verdict and judgment were for defendant; and plaintiff appeals from an order denying his motion for a new trial.

The appellant owns land on a natural watercourse called Willow creek, and respondent owns land on said creek adjoining and immediately above said land of appellant; and for many years appellant and his predecessors have exercised the right of maintaining a ditch up-through a part of respondent’s land in which they have carried water from the north side of said creek down to-their said land. As, owing to the nature of the creek,, it was difficult to keep the head of the ditch always at. the same place, they, during the years prior to 1890,. several times extended the ditch somewhat farther up-the. creek, but always keeping on the north side. But,, from the effect of a freshet in 1890, the creek changed its course, leaving its ancient channel at a point above-the land of respondent, and running through the latter’s-land in a channel several hundred yards south of its-old channel, and south of some land called “ the island,” and beyond the reach of appellant’s ditch. Thereupon the appellant, notwithstanding the objection and protest of respondent, constructed a new piece of ditch from a point nearly six hundred feet below the head of the old ditch, across respondent's land to the new channel of said creek. This new piece of ditch is about seven hundred feet long; and, after it had been dug, against-respondent’s objection as aforesaid, respondent filled up a part of it, which act is the basis of this action. The-[520]evidence warranted the jury in finding that this new ditch, if maintained, would be a damage to respondent of at least one thousand dollars; that respondent offered to allow appellant to make a connection between his old ditch and the new channel by means of a new piece of ditch at other points on respondent’s land where but little damage would be done respondent by such connection; and that, by accepting respondent’s offer, appellant could have re-established his ditch and water right, and enjoyed the use thereof, as formerly, at less expense than he incurred by digging the said new ditch.

The question whether or not the connection of appellant’s old ditch with the new channel of the creek would be a substantial change of the servitude (Allen v. San Jose etc. Co., 92 Cal. 138), and therefore not maintainable, does not arise, because respondent did not make that point. The general law applicable to this case is therefore well settled. The right to take water from the land of another for use on the premises of the person taking it is an easement founded on a grant, or on a prescription which supposes a grant. "Such an easement does not give its owner the right to commit a trespass upon the servient tenement, or to exercise the easement after any manner which happens to suit his pleasure. His right is measured by the terms of his grant; or, where the supposed original grant does not appear, by the prescriptive use. This, however, includes what are called “secondary easements,” such ¡as the right to enter upon the servient tenement and make repairs, and to do such things as are necessary for the full exercise of the right. But these secondary easements must be exercised only when necessary, and in such a reasonable manner as not to needlessly increase the burden upon the servient tenement. (Hargrave v. Cook, ante, p. 72; Gale and Whately on Easements, 235, et seq., and notes.) “As every easement is a restriction upon the right of property of the owner of the servient tenement, no alteration can be made in the mode of enjoyment by the owner of the dominant herit