North Fork Water Co. v. Edwards
Before: Chipman
Synopsis
Easement—Pbescbiption—Ditch—Wsongful Dischabge of Storm Wateb. An easement acquired by prescription in a ditch carrying water for domestic use, and so constructed by plaintiff along a hillside near the edge of defendants’ land as to receive and carry away the storm water flowing in depressions down the hill, and to prevent its flow over the land of the defendants, who, relying upon the continuance of the prevention of such flow, had graded their land, filled up the depressions, and planted trees thereon, does not include the right of the plaintiff subsequently to construct aprons across the ditch at such depressions, so as to discharge the storm water across the ditch to the injury of the defendants.
In.—Limitation of Easement—Rights of Sebvient Estate—Continuous Divebsion of Wateb.—The acquired easement upon the servient estate of the defendants was limited to the right of the plaintiff to maintain the ditch so as to close the depressions receiving the storm water, and to convey it away from the land of the defendants, who had the right to treat their lands as though no depressions or drainage channels had ever existed, and to assume that plaintiff would continue the use of the ditch in the same manner , in which it was used in acquiring the right.
In.—Necessity fob Discharge of Wateb—Pollution fbom Cultivation of Lanes.—An apparent necessity for the use of aprons across the ditch to discharge the storm water, in nowise connected with the origin of the easement for the ditch, but arising from increased pollution of the storm water, owing to subsequent rightful cultivation of lands above the ditch, thereby interfering with the water carried for domestic use, cannot justify its discharge upon the servient lands of the defendants, as against whom the carry, ing away of the storm water entered into the user by which the prescriptive right to the easement was acquired. Such necessity is a condition which should have been provided for in the acquisition of the .easement.
In.—Seconoary Easements—Limitation of Necessity.—Every easément includes ‘‘secondary easements,” consisting of the right to do such things as are necessary for the full enjoyment of the easement; but this right is limited, and must be exercised in such reasonable manner as not to increase injuriously the burden upon the servient tenement.
Id.—Enlargement of Burden—Trespass.—The burden of the dominant tenement cannot be enlarged to the manifest injury of the servient estate by any alteration in the mode of enjoying the former; nor can the owner thereof commit a' trespass upon the servient tenement beyond the limits fixed by the grantor.
In.—Prescription Limited by User.—Rights acquired by prescription are stricti juris, and cannot extend beyond the user; and the extent of an easement so acquired is fixed and determined by the user under which it was gained.
CHIPMAN, C. Plaintiff is the owner of a ditch used to convey water to a large number of families and to the inmates of the Southern California Insane Asylum for domestic and other uses. The course of the ditch at the point in question was along a hillside, and above the ditch the lands were uncultivated and not owned by defendants. Below the ditch and extending to its center are defendants’ lands.
Plaintiff acquired a right of way or easement over defendants’ lands by prescription. When the ditch was first dug it followed generally the contours of the land. There were two depressions running down the hillside to defendants’ lands. A short flume carried the water of the ditch across one of these depressions originally; at the other the ditch was built on the ground. These depressions were slight, but formed drains for the land above the ditch and led into and some little distance over de[664]fendants’ land, where they spread out and disappeared as distinct channels. The ditch was reconstructed later—about eight years before the action was commenced—and was converted into an open cement and stone-walled ditch, and was built upon the ground at the depressions referred to, leaving no passageway for storm waters to pass beyond it. The flume mentioned was dispensed with; the ditch received the storm water and prevented it from flowing onto defendants’ land; defendants thereupon graded and leveled their lands at considerable cost, filling up these depressions, and planted the lands to fruit trees up to within ten feet of the ditch. The easement acquired by plaintiff dates from the construction of this cemented ditch. Plaintiff never exercised or claimed the right to construct aprons at these points and pass the storm water over the ditch onto defendants’ land until 1895, but up to that time always received this water in its ditch with such sand and other debris as it anight carry. In the spring of 1895 the land above the ditch ¡along these depressions owned by other persons was cleared and planted to fruit trees, and the cidtivation of the soil caused additional sand and detritus to flow into the ditch, to the injury of plaintiff and the quality of the water, to avoid which two aprons were constructed in December, 1895, to carry the storm water over the ditch at these depressions and discharge it upon defendants’ lands. It appeared that the water conveyed to consumers was injured in quality more than it had been hitherto, although it appeared that the water was always more or less muddy just after storms, and that at many places along the ditch plaintiff had diverted the surface waters at similar depressions into its ditch. The evidence was that defendants would be materially injured by the flow of storm waters across these aprons as constructed, and that the water would form new and different channels from the depressions formerly existing. One of these aprons was one hundred and ten feet wide and the other eighty feet wide, and the necessity for resorting to them grew out of the cultivation of the lands above the ditch, and not by any act of defendants. It was found by the court that the aprons "are in all respects a suitable and proper appliance for so conducting said storm- and other waters for the protection of said ditch.” It was also found that the consumers of water had no other adequate supply than by
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