Greene v. Fickert

GRIFFIN, J. Plaintiff and respondent instituted this action against defendants and appellants Louise Fickert and Nellie Fickert, individually and as administratrices with the will annexed of the estate of Frederick A. Fickert, deceased, to quiet title to an easement to use a certain spring located on appellants’ land. The trial court decreed that appellants’ predecessor in title, by conveyance of a portion of his estate to respondent, transferred an easement to use a spring on grantor’s reserved portion in favor of the granted estate. The complaint is in the ordinary form of a complaint in a quiet title action.

From 1910 to 1935, one George H. Palmer and wife owned all of section 18, township 82, S. R. 32 E., M. D. B. & M. in Kern County.

On June 26, 1935, the Palmers deeded to Frederick A. Fickert the N. W. 14 and the E. % of section 18. This deed was based upon some oral agreement of sale between them, made a few months prior to that date. October 30, 1935, Fickert conveyed to respondent Angus F. Greene 185 acres of the south portion of the east half of section 18, which would be approximately the southeast quarter of section 18, which we will designate parcel A, “subject to reservations and rights of way of record . . . together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in any wise appertaining, ...” Parcel A is now and has been since 1890, improved by a house, barn, corrals and outbuildings. These improvements are located on the north part of parcel A and immediately adjacent to the north % of the east % of section 18, which we will designate as parcel B.

From 1890 until January, 1936, the house and barn on the premises so conveyed by Fickert to Greene (parcel A) received its water supply for household and domestic uses and for watering stock and poultry from one of several springs known as the “house spring,” all of which were located north of the house and barn on parcel B. The water was transferred from the “house spring” to the house and barn by [513]means of pipes. There were no springs on parcel A, and no other source of water for household, stock or other use was ever developed on parcel A. The use of the water from the “house spring,’’ at the house and barn, was practically continuous from 1890 to January 1, 1936, except for interruptions due to necessary repairs and infrequent interruptions when no one was living in the house. About March 1, 1935, respondent Greene and his wife entered upon the property described as parcel A, took possession of the house and barn thereon, and lived thereon up to the date of the trial of this action. This entry and occupation was made by virtue of an oral lease between the Greenes and George H. Palmer, owner of the property at that time. Rental therefor was paid to Palmer. Thereafter, when Fickert purchased the property from Palmer, they attorned to Fickert and paid the rent directly to him.