Big Cottonwood Tanner Ditch Co. v. Moyle , 109 Utah 197 ( 1945 )

The opinion of Mr. Justice Wade, in applying the English common law doctrine governing rights acquired by prescription, reaches a result which discourages the development of water conservation methods. The doctrine of acquiring a right by prescription presumes a lost grant. To ascertain the terms of the grant, the law looks to the nature of the use during the prescriptive period. If incidental benefits accrue to the owner of the servient estate, it is presumed that in the absence of said benefits the owner of such estate could have and would have stopped the use before the prescriptive period had run. Thus if after the prescriptive period has run, the benefits are cut off, the servient estate owner is permitted to restrain the use. While the principle is somewhat the same, this taking away of the benefits should probably be distinguished from those cases in which the owner of the easement attempts to make changes thereon which will increase the burden on the land. The former takes away a benefit which accrues as an incident to the use of the easement; the latter imposes additional burdens.

The great majority of the cases invoking this principle involve situations under which the owner of the easement attempts to add additional burdens on the land. The law seems to be settled that this cannot be done. See 28 C.J.S., Easement, § 95.

"The owner of the dominant estate can make no alteration in the character of the easement which would increase the restrictions on the servient estate."

Other cases proceeding on the same theory have held that the owner of a dirt road cannot, without servient estate's approval, cement said road. See Littlefield v. Hubbard, 120 Me. 226, 113 A. 304; Burr v. Stevens, 90 Me. 500,38 A. 547; Lorenc v. Swiderski, 109 N.J. Eq. 147, 156 A. 465.

So as to a dominant estate owner who has an easement to run water in an open ditch. It is held that such owner cannot substitute a pipe of the same carrying capacity as the ditch, for such a substitution would substitute a new and different servitude. Allen v. San Jose Land Water Co., 92 Cal. 138,28 P. 215, 15 L.R.A. 93.

It has also been held that no material alteration can be made in the character of an easement although no damage results in consequence thereof to the servient estate, or although it would even be beneficial. Allen v. San Jose Land Water Co., supra.

Cases involving the taking away of benefits which the use of an easement confers on the servient estate apparently do not often arise, but if the common law doctrine of prescriptive rights is followed, it would logically appear that the dominant estate owner could not continue to use the easement after he prevented the accrual of benefits to the servient estate. If we are to presume a lost grant and determine the scope of the grant strictly by the use, the common law will read into the prescriptive right a limitation requiring the owner of the right to continue to use it substantially as it was used during the running of the prescriptive period. If a benefit accrues to the servient estate from the use of the easement, it is reasonable to assume that absent the benefits the use would have been stopped.

In this arid country there is considerable doubt whether the common law of this area should read into the prescriptive use the implied condition that the easement for the conveyance of water would not be changed so as to deprive the servient estate of the benefits accruing from the use. We have in the past refused to follow the English common law where to do so would be contrary to the common interests if applied in this area. Thus in the case ofWinters v. Turner, 74 Utah 222, 278 P. 816, in discussing an earlier Utah case, Buford v. Houtz, 5 Utah 591, 18 P. 633, which latter case was affirmed by the United States Supreme Court,133 U.S. 320, 10 S. Ct. 305, 33 L. Ed. 618, we noted that the common law principle of liability for trespassing animals was in the early settlement of this state ill adapted to the custom and habit of the people of this area. And in Buford v. Houtz, the Utah court and the U.S. Supreme Court refused to apply the common law rule to this unsettled country where to do so would practically deprive the owners of livestock of the right to use the public domain. There are numerous situations under which American jurisdictions have refused to follow the English common law because such common law principles were not adapted to the custom, habit and needs of the people. One of these which comes to mind is the refusal to apply and follow the common law riparian rights cases.

There certainly are grounds for questioning whether or not the result reached by Mr. Justice Wade is adapted to the habit, custom, and needs of this state. Less than 5% of the lands of the state of Utah are now under cultivation. Water is the life blood of the state. One may reasonably ask whether or not the common law of Utah should read into the prescriptive easement to carry water the same content as the English common law has applied to rights of way over land. It could reasonably be said that at the time of this grant, which is now presumed to be lost, all parties concerned, knowing of the arid nature of this country, contemplated that at some future time the owner of the water would be required by law to prevent the wasting of water. Possible at the time of the grant, it was not considered wasteful to use water as "carrier-water" to carry the water through leaking ditches, and while it is not necessary so to decide in this case, I am of the opinion that water diverted from the natural channel and used as carrier water has been appropriated if diverted prior to 1903. As the need for water grows more acute, it may be that water used as carrier water cannot be said to be used beneficially. The law would require the closing of the leaks — maybe even the stoppage of loss by evaporation. It would be reasonable in this arid area to hold that at the time of the supposed lost grant, both parties contemplated that this might be done. If this was contemplated, and the common law of Utah should presume that it was, then the terms of the grant would be presumed to be that the owner of the easement should have the right to carry water across the lands of another beginning with a dirt ditch; that as water became more valuable, it was agreed that the ditch might be improved so as to save the water; that these further developments to conserve water could be made by the owner of the easement so long, and only so long, as the new developments did not put further burdens upon the land. If they did put new burdens upon the land, the owner of the easement should pay for the additional burden. However, in no event was the servient estate to be allowed to obtain an interest in the seepage water or to acquire any other benefits which might incidentally accrue from the use of the easement. No right to the benefits could be obtained by the servient estate because the common law of Utah would not read into the prescriptive use that content. Rather the Utah common law rule would presume that the parties contemplated that these benefits might vanish because of the need to conserve water and made the grant with this very point in mind. Such a presumption is in all probability contrary to actual fact. But so is the basis for the whole doctrine of title by prescription. To fit the concept of title by prescription into established real property law concepts, common law courts adopted the fiction of a lost grant. Ordinarily it had no actual relationship to fact. It resulted in the taking of one man's property and giving of it to another by presuming that the former had made a conveyance to the latter, who had been using the property throughout the prescriptive period. It was a case in which the law inserted a legal basis for the human transaction so as to keep logical the fabric of the law when the owner of the servient tenement either orally permitted the owner of the dominant tenement to use his land or made no protest to his doing so — a transaction arising out of neighborliness without thought of how it fitted into legal concepts. The law followed the event rather than the event the law, but the law rationalized it. The content of this fiction was no doubt adopted to fit the needs, custom and habits of the people of the times.

The result advocated by me would encourage the development of water conservation methods. It is well adapted to the needs of the people of this arid state. It enables the owner of the servient estate to receive additional compensation for any additional damage to the land itself, but denies him any right to damages resulting from the conservation of the water.

Such a rule would let the landowners (servient estate) obtain damages for any new and additional burdens placed upon their lands by new development, but it would not permit them to claim damages for the loss of the incidental benefits. If such a rule were not adopted, it would be beyond the power of the legislature ever to change it as to existing easements. To be consistent we would be compelled to hold that a statute designed to adopt such a rule would be unconstitutional as depriving the servient estate owner of property without due process of law. For if the rule advocated by Mr. Justice Wade is adopted it would be presumed that the grant of the easement was in return for the benefits. A statute taking away the benefits without also abolishing the easement would have to be held by the courts to be taking property without due process of law.