Carter v. Wakeman

70 P. 393, 42 Or. 147, 1902 Ore. LEXIS 151

• Court: Oregon Supreme Court
• Decided: October 27, 1902
• Status: Published

Opinion

Mr. Justice Wolvsrton,

after stating the facts, delivered the opinion of the court.

1. The action is simple in its nature, the plaintiff being only required by her complaint to state her ownership of the easement by appropriate averments; describing it so it may be readily discerned of what it consists, the invasion or obstruction thereof, and the damages, specified or general, ensuing, as may be adapted to the exigencies of the case. It is altogether unnecessary, in an action of this character, to set out or to' show the particular manner in which or from whom the easement was'acquired: 7 Enc. PI. & Pr. 258. Any person in possession of premises to which the easement is appurtenant may maintain the action (7 Enc. PI. & Pr. 256)', but, if the plaintiff is also the owner of an estate in or title to the premises forming the basis of his possession and right thereto, it would be safer, perhaps, to allege such ownership also. If, however, plaintiff has gathered into her complaint sufficient facts by which to establish an easement appurtenant to premises in her rightful occupancy, or of which she is the owner, and to further show a wrongful obstruction or hindrance to her use, by which she is damaged, it may be sustained, as against the test of a general demurrer, notwithstanding it may consist in setting up minutely and with much detail the manner of her acquirement of such easement. In such a ease, as in the ordinary one, the pleading is construed most strongly against the pleader.

2. Pleasant Creek flows through both the lands of the plaintiff and the defendant, the latter’s being above those of the former. Now, as we read the complaint, it is alleged that the water was taken and appropriated through a ditch constructed from Pleasant Creek to a point on defendant’s land partly by defendant and partly by plaintiff’s husband, and from thence to and upon plaintiff’s lands wholly by her husband; that continuously ever since its construction, being more than twenty years, plaintiff and her husband contributed to the maintenance of said ditch down to the initial point of such extension, and from thence they have wholly maintained it; that Pleasant Creek affords more water than is needed for the úse of both plaintiff and defendant, and that said ditch was constructed with sufficient capacity to carry all the water required by both; that for more than twenty years plaintiff and her predecessor have continuously, each year, during the irrigating season, used all the water upon their land so conveyed from said Pleasant Creek, and flowing through said extension; that during all of said time plaintiff and her predecessor have continuously, each year throughout the irrigating season, so appropriated and used all the water flowing in said ditch from the point on defendant’s land before mentioned, flowing and conveying the same from Pleasant Creek through said portion of said ditch constructed by plaintiff’s said husband and the defendant, and have so used said water and the ditch, through ■which the same has been conveyed from Pleasant Creek, continuously and adversely, under an honest claim of right, etc. A like allegation is made as to plaintiff individually, showing a continuous use for more than sixteen years last past, her husband having died in 1883. From these allegations it is deduced by the pleader that the long, continuous, and uninterrupted use of said water and ditch has ripened into and become an easement appurtenant to the lands occupied by plaintiff.

We are not sure whether the pleader intends to rely upon an appropriation from Pleasant Creek, and to base ownership of the easement upon the right, or upon a right by prescription acquired from long, continuous, and adverse user as against the defendant. The facts alleged fall short of stating any title or right of use by appropriation. True, it is averred at the outset that the water was taken and appropriated through the ditch constructed in the manner designated; and a little further on, that plaintiff has for more than twenty years continuously appropriated and used all the water from the point whence the extension was made solely by plaintiff’s husband. But these averments, with such others as may aid them, are so vague and indefinite that they cannot by any reasonable construction or legal intendment be held to show an appropriation either by defendant or plaintiff of any water from Pleasant Creek. To constitute an appropriation, there must be an appropriator, with the intent to appropriate to some beneficial use. This must be followed by a diversion and application to the use within a reasonable time, but the complaint contains no sufficient statement of these essentials. The allegation that plaintiff and her husband appropriated from the point where the husband made the extension refers, by all reasonable intendment, to the surplus water after defendant’s use; and, standing alone, it would be but a conclusion of law, and could not be sufficient upon which to base an original appropriation. There is conjoined with this averment, however, another that they used all the water from that point, continuously flowing the same through the ditch from its source; and, coupled with what follows, an intention to set up a prescriptive right, and not an appropriation, may be inferred. If such is the purpose, the right is so illy defined that it cannot be determined of what it consists. Is it a right produced by adverse user as against the defendant, extending to the surplus water allowed by him to pass down the ditch to the point of extension, or does it comprise a right to take water in amount equal to such surplus from Pleasant Creek, and flow it through the entire length of the ditch, and apply it to plaintiff’s necessities upon her premises? We are unable to determine which, from what is stated. And again, no definite quantity of water is named, to the use of which plaintiff has become entitled by her alleged prescription. This is perhaps important as descriptive of the right. Without entering further into detail touching the sufficiency of the complaint, suffice it to say that it does not with sufficient definiteness describe and define the easement which it is alleged the defendant obstructed, nor is plaintiff’s ownership thereof indicated by appropriate and apt allegations. The demurrer was therefore properly sustained.

Another question arose subsequent to the entry of judgment dismissing the action. Plaintiff filed a second amended complaint under an impression that she had leave of the court so to do, and moved for judgment for want of an answer, which was denied, and the action of the court in this particular was assigned as error. An examination of such complaint shows it to be in all material respects, save one, the same as the complaint to which the demurrer was interposed and sustained; the difference being that the latter contains an allegation that plaintiff is the owner in fee of the premises in her possession. This alone, however, did not make it a good complaint, and the judgment must be affirmed. Affirmed.