Jobling v. Tuttle

89 P. 699, 75 Kan. 351, 1907 Kan. LEXIS 64

• Court: Supreme Court of Kansas
• Decided: March 9, 1907
• Docket: No. 14,922
• Status: Published

Opinion

The opinion of the court was delivered by

Porter, J.:

The first complaint we shall notice is of error in finding No. 25 made by the court. This finding in substance is that prior to purchasing the springs defendant had no knowledge or notice that the Loomis hotel property had any special right to the use of the waters other or greater than that enjoyed by the general public. Plaintiff contends that this is not a finding of fact but a conclusion of law; that there was no issue raised by the pleadings in reference to what the rights of the public were in the use of the springs. The petition, however, alleges that for more than forty years the public had enjoyed the free and uninterrupted use of the waters of the springs; that the citizens of Geuda Springs had enjoyed the privilege from the time the town was established.

In his opening statement on the trial plaintiff’s counsel stated one of the issues in the following language:

“The • first proposition under which we claim the right to use these springs is that of prescription — that is, as a citizen of Geuda Springs; that the use of them vested in every citizen of that town, and has so existed for a period of thirty-five years. . . . We claim that by virtue of having that right as a citizen of Geuda Springs; that the defendant could not close the springs against them.”

Plaintiff proved by several witnesses that the public had enjoyed the privilege for a great many years. The petition also alleged that defendant had notice of the special claim to the use of the waters by the proprietors of the hotel and their guests and servants. The answer contained a specific denial of such notice. The reply alleged that the agent of Tuttle in the purchase of the springs had actual and constructive notice of plaintiff’s claim as set forth in the petition. The finding was therefore of facts well within the issues. Nor do we agree with the contention of counsel that it is wholly immaterial whether Jobling’s rights were greater or less than those claimed by the public in general. As we shall attempt to show further on, this is one of the controlling facts in the case.

Did plaintiff acquire an easement in the use of the waters by grant, or, as alleged in the petition, by virtue of an executed parol contract? Finding No. 5 by the court is that one of the inducements for building the hotel was the agreement on' the part of the owners of the springs that the guests and servants of the hotel should have the use of the waters, but that this agreement was never reduced' to writing. Finding No. 7 is that Gilbert, 'vfrho built the hotel, and his successors in interest, including the guests and servants of the hotel, had used the waters of the springs without objection on the part of the owners, but that such use was enjoyed in the same manner and to the same extent as by the public generally. These findings, together with the finding that defendant at the time he purchased the springs had no notice of any right claimed by virtue of such agreement, present the further question whether an innocent purchaser of the' springs can be bound by, or in anywise affected by, the fact that an agreement of the kind had been in fact made and relied upon by the original builder of the hotel.

The conveyance under which Tuttle took title to the land whs the ordinary warranty deed, with no restrictive language. That percolating waters, such as these springs are, belong to the owner of the land as much as the land itself, admits of no doubt. (City of Emporia v. Soden, 25 Kan. 588, and cases cited at p. 608, 37 Am. Rep. 265. See, also, note to Wheatley v. Baugh, 25 Pa. St. 528, in 64 Am. Dec. 721.) In the case of Armor v. Pye, 25 Kan. 731, it was held that where the recorded deed made no mention of a right of way through lands a subsequent grantee took without notice. (To the same effect see Cox v. Leviston, 63 N. H. 283; Taylor v. Millard, 118 N. Y. 244, 23 N. E. 376, 6 L. R. A. 667; National Exchange Bank v. Cunningham, 46 Ohio St. 575, 22 N. E. 924.) It is contended by defendant that the claim set up by plaintiff is a non-apparent, non-observable, disconnected easement, and can only be binding on Tuttle by proof of actual notice. This, doubtless, was the conclusion arrived at by the trial court.

Plaintiff’s hotel is situated on the block of ground adjoining the tract upon which the springs are, but seven lots which do not belong to the hotel property intervene. The springs are disconnected from the dominant estate to which it is claimed they are appurtenant. There is no connection between the two to indicate that one is servient to the other. It has been held not indispensable to the existence and enjoyment of an easement that the dominant and servient estates should be in contiguity with each other. (Jones, Easements, § 5; Witt v. Jefferson [Ky.], 18 S. W. 229.) But there should be such a connection between the use and the thing used as to suggest to a purchaser that the one estate is servient to the other. (Taylor v. Millard, 118 N. Y. 244, 23 N. E. 376, 6 L. R. A. 667; Simmons et al. v. Cloonan et al., 81 N. Y. 557; Kuhlman v. Hecht, 77 Ill. 570.) Thé servitude must be open, apparent, and visible, so as to raise a presumption of notice, or the purchaser will not be bound. (Jones, Easements, §§ 121-123.)

It is manifest that whatever right plaintiff and his predecessors in title had or claimed to the use of the waters of these springs, it was one which, as the trial court found, was enjoyed by the public generally, and possessed no distinctive qualities which made it apparent or observable to a purchaser without notice, or which put him upon inquiry, unless a purchaser was bound by knowledge of the use enjoyed by the public. The latter condition involves the consideration of the right claimed by prescription. It is not seriously contended by plaintiff that the record discloses any facts which defendant was obliged to take notice of which would have challenged his attention to the claim of the hotel proprietor of any special right to the use of the waters, except the fact that the public used the springs. The grant, therefore, resting in parol, was not sufficient to affect or bind defendant in the absence of actual notice.

Did plaintiff acquire an easement in the springs by prescription ?

“To determine to what extent an adverse right can be acquired, it is necessary to consider the elements which must enter into the acquisition of such right. And in general it may be stated that to acquire such rights the user must be continuous and uninterrupted, actual, open, notorious, and exclusive.” (2 Farnham, Waters & Water Rights, § 535.)

The same author says:

“If the use which was made of the water was one which the proprietor had a right to make, and it did no injury to the other person, it would not make the slightest difference how long it had continued. It was not until the use of the water became wrongful as to another or injured his rights that it became adverse so that its continuance would give a good title.” (§ 535.)

It must, therefore, be adverse, and this character of the use has been defined to be a use under a claim of right known to the owner of the servient tenement— use such as the owner of an easement would make of it without permission asked or given, and disregarding entirely the claims of the owner of the land. (22 A. & E. Encycl. of L. 1194.)

It is well settled that the use of a watercourse cannot be adverse to the rights of another so long as there is an abundance of water to supply both. (Faulkner v. Rondoni, 104 Cal. 140, 37 Pac. 883.) By the nineteenth finding of the court it appears that during all'the time the springs have been known there has been a surplus of water beyond what has been required by the owners. It is a contention of defendant, which is supported by this finding, and seems to be borne, out by the authorities, that the use of the surplus waters of these springs by the public generally, or by plaintiff’s predecessors in title, cannot be considered adverse so long as the use was in no respect a deprivation of the rights of the owner of the servient estate; in other words, the right to use merely the surplus waters flowing from the springs was a mere license, which could never ripen into a prescriptive right. In Brossard v. Morgan, 7 Idaho, 215, 61 Pac. 1031, it was held that there was no adverse user of waters for the reason that each of the parties was using the water claimed by him, and there was an abundance for both. It was there said:

“As against the plaintiffs, the use of waters from Stockton creek lacked every essential element of adverse use and possession. There was no deprivation of possession or use as against plaintiffs, and no claim of adverse title asserted against them by defendant/’ (Page 219.)

In Talbott v. Butte City Water Co., 29 Mont. 17, 73 Pac. 1111, it was said:

“To take the water when the prior appropriator has no use for it invades no right of his, and cannot even initiate a claim adverse to him.” (Page 27.)

“When there is sufficient water in the river to supply all parties, there can be no such thing as adverse use of the water to start the statute of limitations running.” (Egan v. Estrada, 6 Ariz. 248, 253, 56 Pac. 721.)

In Hunter v. Emerson and Emerson, 75 Vt. 173, 53 Atl. 1070, plaintiff sued to enjoin the use by defendants of a spring upon his land. Defendants claimed a right by prescription, and they and their grantors had used the waters for domestic purposes for more than forty years; they had also erected a fence around the spring. The court held that since it did not appear that the fence was built in the assertion of a right to the spring, or for its protection, or to exclude other persons from using the water, title by adverse possession could not be acquired by the building of the fence. The syllabus reads as follows:

“The open, notorious and continuous taking of water from a spring for a period of more than fifteen years, is permissive, and not adverse and under a claim of .right, when it is consistent with another’s title, though :no express license is given.”

To the same effect are the following cases, which, '.however, involve, the right to the use of the waters of streams: Alta Land etc. Co. v. Hancock, 85 Cal. 219, 24 Pac. 645, 20 Am. St. Rep. 217; Cox v. Clough, 70 Cal. 345, 11 Pac. 732; Smith v. Logan, 18 Nev. 149, 1 Pac. 678; Wheatley v. Baugh, 25 Pa. St. 528, 64 Am. Dec. 721.

When a right of way is claimed by prescription the rule is well settled that the user or enjoyment must, have been adverse as well as continuous and exclusive. If permissive merely, it is a license, which can never ripen into an easement. (U. P. Rly. Co. v. Kindred, 43. Kan. 134, 23 Pac. 112; Railway Co. v. Conlon, 62 Kan. 416, 63 Pac. 432; Insurance Co. v. Haskett, 64 Kan. 93, 67 Pac. 446.) In Falter v. Packard, 219 Ill. 356, 76 N. E. 495, the rule is stated in substance as follows: The user must have been under a claim of right, with the knowledge of the owner of the estate, but without his consent.

It appears from the findings that at no time was any water appropriated by plaintiff’s predecessors in title or their guests or servants, or by the public, that was needed or required by the owners. That such cannot, be held an adverse use of water is,-from the authorities we have cited, no longer open to controversy. (See, also, Farnham, Waters & Water Rights, §§ 537-540; Union Water Company v. Crary, 25 Cal. 504, 85 Am. Dec. 145.)

Moreover, it appears that defendant and the former proprietors of the springs were using the water from some of the springs for commercial purposes, and that during the time defendant so used it the supply from these particular springs would be exhausted for five or six hours at a time. Thus defendant, was asserting and exercising a right to the use of all the waters of two of the springs adverse to any right claimed or enjoyed by plaintiff during a portion of the period plaintiff claims to have gained his right by prescription. In this connection finding No. 17 is important, from which it appears that in 1902 defendant constructed a new building over the springs, and closed the entrances so that it became necessary for all persons visiting the springs or using the waters to enter and pass through doors and up and down stairs of the building belonging to defendant. It is apparent- from the findings that plaintiff's use of the-springs was permissive only and at all times consistent with the owner’s rights — never adverse, and that however long continued it could not xipen into an easement.

A considerable part of plaintiff’s brief is taken up with a discussion of the testimony and the contention that some of the findings of fact are contrary to the weight of the evidence. An examination of the entire record convinces us that every finding is sustained by competent evidence, and we are therefore not at liberty to disturb any of them.

The findings, we think, compel the affirmance of the judgment. It is therefore affirmed.