Coleman Co. v. Southwest Field Irrigation Co. ( 1978 )

HALL, Justice:

Plaintiff (“Coleman”) sought equitable relief in the nature of a decree quieting title to a prescriptive easement by adverse possession, or in the alternative, for damages for failure to maintain the easement. Defendant, Southwest Field Irrigation Company, disclaimed any property interest and was properly dismissed as a party. The case was tried to the court, sitting without a jury, and from a judgment of dismissal Coleman appeals.

The trial court based its ruling on stipulated facts, however, that stipulation does not appear in the record before us. Nevertheless, it is not disputed here that the defendant, Old Fort Old Field Irrigation Company, (“Old Fort”) had a 50-year prescriptive easement in a ditch running through plaintiff’s and its predecessors’ land. As required by statute,¹ Old Fort maintained the ditch with little effort and expense since it was fairly shallow, well-established and sodded and apparently followed the natural contour of the land. Plaintiff relocated the ditch solely for its own benefit and convenience and without Old Fort’s express consent. Old Fort was found by the lower court to have acquiesced in the location change and to have properly maintained it in the same manner as it had maintained the ditch in the original channel. Some time thereafter the new ditch began washing out and endangered plaintiff’s fence. Old Fort refused to expend the funds necessary to stabilize the new channel and gave rise to this suit.

The trial court correctly observed that plaintiff acquired no rights by adverse possession simply by relocating the easement, and in any event, it was not an adverse act at all because it was acquiesced in by Old Fort.

It is also to be noted that, having sought equity, it is incumbent upon plaintiff to do equity.² By its action in relocating the ditch for its sole benefit and convenience, plaintiff sought to decrease the burden on its servient estate but its actual result was to increase the burden of Old Fort. Certainly Old Fort’s acquiescence did not contemplate an increase in its burden of maintenance and no such increase can be made without its consent.³ The burden of maintenance as to the relocated easement should only be as great as the burden of maintenance as to the original easement, absent such further agreement between the parties.

The facts of this case support the judgment of the trial court and its judgment is affirmed.

CROCKETT and WILKINS, JJ., concur. ELLETT, C. J., dissenting.

1 . U.C.A., 1953, 73-1-8.

2 . 30 C.J.S. Equity § 90.

3 .Hubble, et al., v. Cache County Drainage District No. 3, 123 Utah 405, 259 P.2d 893 (1953).