Blankenship v. Whaley
Before: Henshaw
Synopsis
Easement—Interest in Irrigating Ditch—Executed Parol Agreement —Enforcement against Purchaser of Land. — An interest in an irrigating ditch constructed upon the lands of another is an estate in real property which is within the statute of frauds; but where the owner of the land made a parol agreement with the ■plaintiff and other persons, by the terms of which they were jointly to enlarge and increase the ■ capacity of the ditch, and were jointly to use the ditch and the water flowing therein for irrigating purposes, and there was such an execution of the parol agreement on the plaintiff’s part as to entitle the plaintiff to enforce it in equity against the original owner of the land, it may be enforced against purchasers from such owner, if they took with knowledge or notice of the plaintiff’s equitable interest.
Id.—Title op Purchasers at Administrator’s Sale—Caveat Emptor— Record Title—Notice of Defects.—Purchasers of land at an administrator's sale are subject to the maxim caveat emptor, and are not warranted in the title purchased; but they are nevertheless subject to the recording acts, and are not charged with constructive notice of secret defects which do not appear of record when their deed is recorded.
Id.—Notice op Plaintiff’s Rights—Pleading—Proof—Omission to Find.—If there is nothing of record to charge the purchasers with notice of plaintiff’s rights when their deed was recorded, it is incumbent upon the plaintiff, who seeks to enforce the executed parol agreement as against such purchasers, to plead and prove that; they took the title with notice or knowledge of the plaintiff’s rights, and an omission to find upon that material question is ground for reversal of a judgment in favor of the plaintiff, enforcing his rights as against the purchasers.
Id.—Reservation in Administrator’s Deed—Order of Court—Ambiguous Finding.—An administrator is not authorized to make a reservation in his deed which will operate to create any new interest in the land in favor of the plaintiff; but he may, pursuant to an order of court, note existing rights of the plaintiff, and except them from the operation of the conveyance of the interest of the decedent, and in such case the purchaser would take with notice of those rights. A finding that the administrator’s deed was “duly executed pursuant to an order of the superior court” is ambiguous, and insufficient to show that the exception of plaintiff’s rights was authorized.
HENSHAW, J. By his action plaintiff seeks an injunction restraining defendants from interfering with him in the use of a certain ditch upon the lands of defendants. Plaintiff avers that he “constructed a certain irrigating ditch” upon lands which were at the time the lands of one R. G. Rogers, under an agreement with Rogers that he, plaintiff, was to have the perpetual right to the use of the ditch for the purpose of conducting water to his lands, together with the right at all times to enter upon the premises of Rogers to repair the ditch and [302]keep it in proper condition. He alleged that for ten years last past he had qpenly and notoriously and adversely to all .others used the ditch for the indicated purpose; that about a year before the commencement of the action the defendants 'became the reputed owners of the land upon which the ditch is constructed, but that they became such owners with full notice of the existence of the ditch and of plaintiff’s rights therein and thereto. Prior -to the commencement of the action defendants informed plaintiff that they would not then nor at any time in the future permit him to use the ditch, or run water through it to his lands, or enter upon the lands for the purpose of repair of the ditch, or for any purpose whatsoever. Fifteen acres of plaintiff’s land consists of high, sandy soil sown to alfalfa, of the valúe of fifty dollars per acre. It can be irrigated only by water conducted through the ditch, and without being irrigated the land and the crop growing thereon would be rendered entirely worthless. Unless plaintiff is permitted to use the ditch and run the water through the same without delay, his crop will be destroyed, and he will suffer great and irreparable damage. The answer denied all the material averments of the complaint, excepting the ownership of the land, and if is specifically denied that defendants acquired ownership with any knowledge of any rights of the plaintiff in and to the land or to the ditch. The court found that plaintiff did not "construct” any ditch upon the land of Rogers at all, but it found that during the year 1887, while Rogers was the owner of the land, plaintiff and Rogers “entered into a parol agreement, by the terms of which plaintiff, Rogers and others were to do the work of enlarging and increasing the capacity of the ditch mentioned and referred to in plaintiff’s complaint • herein, and, in consideration of said work being done as aforesaid, the parties performing the same were to have the use of ' said ditch and the water flowing therein, and jointly use the same during the irrigating season for irrigating purposes; that ■ pursuant to said agreement the- work of enlarging the said ditch and increasing the capacity'thereof was done by said plaintiff,’ the said Rogers and others, the said work being finished during " -the year 1887.” "Thereafter, at various times between the year l:'188'7'-ahd'the year 1893,'the Said parties to said .agreement used
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