Kirk v. Hoge , 123 Va. 519 ( 1918 )

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

1. We are of opinion, under well settled rules of law, that upon the partition and sale for partition of the land of John G. Snidow’s estate in 188.., and thereafter, the waste-race, as well as the tail-race below the mill now belonging to appellants, and the use of such races alternately in connection with the operation of the mill, by the temporary stopping of the discharge of water along the tail-race while the owners might be making necessary repairs to the mill, and the discharging of such water during such time by an over-flow from a point above the mill into the waste-race (the respective locations' of which races are shown on the sketch above), were easements (technically known as secondary easements), of an open, visible and permanent character, appurtenant to the ownership of said mill property as the dominant estate; were reasonably necessary to the enjoyment of the ownership of the mill property, and passed, by implication of law, to those under whom appellants claim and derive title, and thence to appellants, as against those of the appellees who claim and derive title tó their lands from the same common source of title, to-wit, from John C. Snidow’s estate, without the use of any descriptive words of grant or reservation in the conveyances under which such appellants or appellees claim and derive their titles; such easements, upon the partition aforesaid, being by implication of law charged upon the lands lying below the mill and on which such easements were then located, and those lands being thereby made servient to that extent to the said mill property as the dominant estate. Washburn’s Easements, and Servitude, (3rd ed.) sec. 37, pp. 91-2; Idem. p. 95; Angell on Water Courses (4th ed.) sec. 142; Idem. sec. 153, pp. 271-2; Idem. sec. 155a, p. 272; Idem. sec. 153, p. 278; Idem. sec. 159; Idem. sec. 161, pp. 282-3; Idem. sec. 163, p. 285; Idem. sec. 166b, pp. 290-1; Idem. pp. 292-3; Idem. sec. 166f, sec. 166g and sec. 166h; 3 Farnham on Waters and Water Courses, sections 830, 831, 832a, 832b; Bennett v. Booth, 70 W. Va. 264, 73 S. E. 909, 39 L. R. A. (N. S.) 618; Note in 6 L. R. A. (N. S.) 327; Note in 26 L. R. A. (N. S.) 315.

The accustomed use fixed the right of use of the easements, and such easements were none the less valid because they consisted in the right of the use thereof at intervals of time, and for certain purposes, as for a diversion of water for certain repairing to be done. Angell on Water Courses, supra, sec. 143, p. 245, and sec. 153a, supra; 1 Minor on Real Prop. sec. 108. The easements in question having been created as aforesaid, upon the severance of the dominant and servient estates aforesaid, and such severance having been made in a manner equivalent to .a partition of the land, the conveyances making such partition, under which the appellants and appellees affected derive title as aforesaid, must be treated as if they were simultaneous conveyances, and the established principles governing the acquisition of easements by implied grant govern the case. Angell on Water Courses, sec. 161, pp. 282-3; Idem. sec. 166h; 3 Farnham on Waters and Water Courses, sec. 830; 1 Minor on Real Prop., secs. 102, 103. Therefore, in the case before us, as to the right of appellants as against such ap-. pellees, all deriving title from the partition or sale for partition of the lands of John C. Snidow’s estate as aforesaid, no question arises as to whether a reservation of said rights of easement will be implied by law in the absence (as there was) of any express reservation thereof in the conveyances to appellees. We are therefore not called upon to enter here upon any consideration of the distinctions which are drawn by the authorities as to when a reservation of an easement, as appurtenant to real estate retained by a grantor, will be implied in law. See 1 Minor on Real. Prop., secs. 105, 106, 107; 3 Farnham on Waters and Water Courses, secs. 832, 832a, 832b; Angelí on Water Courses, pp. 292-3, as to implied reservations' of easements where a grantor conveys away the servient and retains the dominant estate.

2. As to the right of appellants, as against the .appellees, H. W. Snidow and Mrs. Josephine Snidow (as to a portion of her land), deriving title from Jacob Snidow, Jr., the easements aforesaid having been under the claim of right and of the character aforesaid and hostile to the rights of such appellees as now claimed by them and against such rights in Jacob Snidow, Jr., under whom they claim and derive title, and enjoyed by appellants and those under whom they claim title from about 1847 until this suit was instituted, by adverse, uninterrupted (with respect to the accustomed use), notorious and exclusive enjoyment, as against such appellees and the said Jacob Snidow, Jr., a period of many times more than twenty years, the appellants long before the institution of this suit acquired prescriptive title to such easements. 1 Minor on Real Prop., sec. 108; Angell on Water Courses, secs. 201, 209, 210, 219c; 3 Farnham on Waters and Water Courses, secs. 809, 822, 827d.

3. As to the rights of appellánts as against the citizens of the'town of Pembroke and others, riparian lower owners of land on the natural channel of the creek aforesaid (aside from the consideration that they are not parties to this suit), it is deemed sufficient to say that the water from the natural channel of such creek having been diverted by those under whom appellants claim title as long ago as about 1847 and such diversion having been continued and the use thereof by appellants and those under whom they claim having been of the character and manner aforesaid, what is said in paragraph next above applies as against the original rights of such citizens also, and they have been long since barred, and the appellants have acquired by prescription the right to continue such diversion of such water.

4. The observations above made apply to such easements as those aforesaid, which are of a permanent character and are necessary for the disposition of water continuously flowing from the dominant estate, so long as the accustomed operation of the mill may be continued in substantially the same way; and where the location of the artificially constructed ways' or channels for the flow of the water and the use being made of them are plainly visible, open and obvious. In such case the rule applies, which is above applied, that the easements arise and exist by implication as attached or appurtenant to the dominant estate, and arc charged upon the servient estates, without the existence of express words of grant or reservation thereof. A different rule has been applied to easements of a different character and for other drainage, such as for rain water, for sewerage and the like, and where the conduits therefor are concealed from view and their location in any particular direction is not a matter of any peculiar necessity. Angell on Water Courses, secs. 121, 128, 166n, 166t and 166v, relied on by appellees. But, for the reasons above indicated, such a rule has no application to the cause before us.

5. However, appellees claim that (a) as owners of the land located on said tail-race, they have the natural corporeal right to the enjoyment of an uninterrupted flow of the water therein; and, if not, that (b) - they and those under whom they claim and derive title, have, by their long use and enjoyment of the water flowing in such tail-race, acquired title by prescription to the enjoyment of an unin- • terrupted flow of such water in such race. These positions will be considered in their order as stated.

(a) The natural corporeal right in question is possessed by riparian owners of land on natural channels of water courses only. Such right does not exist in the water flowing in an artificial' channel. The right, of those owning land bordering upon or through which artificial channels pass, to the use of the water flowing therein, is not a natural right, nor a corporeal right, but an incorporeal right, which can bé acquired only by grant, express or implied, or by prescription. Angell on Water Courses, sec. 90, p. 91; 3 Farnham on Waters and Water Courses, sec. 820.

There are some expressions in some of the authorities cited and relied on by appellees (40 Cyc. p. 608, (f); 28 Am. & Eng. Ency. Law [1st ed.] p. 982), and in other authorities on the subject, to the effect that rights may be acquired by land owners on artificial channels of water courses of which they cannot be deprived; but upon close consideration of such authorities it will be found that the rights which can be so acquired must be by prescription, or by grant express or implied, and can be acquired in no other way. We venture to say that no well considered authority can be found which holds that such rights are natural rights, such as are possessed by a riparian land owner upon the natural course of a flowing stream, or that they can be acquired otherwise than as aforesaid.

As to appellees, who own parcels of the Augustus E. Snidow, subsequently the John C. Snidow, land; as we have seen above they acquired such lands subject- to the easements aforesaid and, in that regard, servient to the said dominant estate of the appellants in said mill property. Therefore, the implied contractural relations between the parties thence arising measure and fix the rights of such appellees touching the use of the water in said tail-race. Hence their right to the use of such water has always been, and was at the time of the institution of this suit, subject to the right of the appellants to divert such water into the waste-race whenever the latter had need to do so to make repairs to the mill in accordance with said accustomed use of said easements. And while it is true that such appellees had and have the right to use the water in the tail-race so long as it might or may flow therein as a result of the use of said easements by the owners of the dominant estate, such.right of appellees was and is subject to be terminated whensoever and during such period of time as the necessary use aforesaid, appurtenant to the dominant estate, might or may occasion such result (3 Farnham on Waters and Water Courses, secs. 824, 827, 827b, 827c, and other authorities above cited); unless, indeed, such appellees, and those under whom they claim title, have acquired greater rights by prescription, which subject we will now consider.

(b). The use and enjoyment.of the water flowing in the tail-race by appellees and those under whom they claim title to lands formerly belonging to Augustus E. Snidow, later to John C. Snidow, as aforesaid, was never in conflict with the use of said easements appurtenant to the dominant estate aforesaid and the attendant right of the owners of the dominant estate to divert the water to the waste-race as aforesaid, nor ever even claimed to be so until some three to five years before the suit, as aforesaid. There was never, therefore, any use of such water by such appellees, or those under whom they claim, adverse or hostile to the rights of appellants aforesaid. The absence of such aderse or hostile element in the use relied on by such appellees—an element essential to the acquisition of right by prescription— is fatal to the claim of such appellees to a prescriptive right to the uninterrupted use of the water in the tail-race as against appellant. 3 Farnham on Waters and Water Courses, secs. 827d, 828; Angelí on Water Courses, secs. 215a, 219a, and 219c.

As to appellees who own parcels of the Jacob Snidow, Jr., land; as we have seen above, appellants have acquired the prescriptive right to said easements. This has barred the natural rights which such appellees, or those under whom they claim title, rnay have once had to the uninterrupted flow of the water in the natural channel of the creek, and has vested in the appellants the right to interrupt the flow of the water in the tail-race in accordance with the accustomed use thereof aforesaid, which fixed and determined the extent of appellants’ prescriptive right as aforesaid. And such appellees, equally with the other appellees, never had any natural right, as pointed out above, to the use of the water in the tail-race, an artificially constructed channel therefor. They do not claim to have derived the right to the uninterrupted use of the water by grant. As to their claim of prescriptive right to such use, the adverse or hostile element in their use of the water was absent, equally as in the case of The other appellees and, hence, they could not and did not acquire such right by prescription.. Therefore, the appellees, who own parcels.of the Jacob Snidow land, had not, when this suit was instituted, any right to the uninterrupted flow of the water in said tail-race as against appellants, whether by natural right, by grant, express or implied, or by prescription.

The same observations apply to the citizens of the town of Pembroke and other lower riparian owners aforesaid and to their alleged rights (were they parties to this suit), in so far as such rights appear herein to have once existed.

6. The circumstance that in recent years a cave, or sink, occurred on the channel of the waste-race, after the right of appellants aforesaid had been acquired a§ aforesaid, in which the water when diverted to the waste-race sank so that it no longer passed or will pass on for the use of appellees and others, whose lands are located below, whether on the waste-race, tail-race or the natural channel of the creek, was not due to any act of the appellants in excess of their right to the use of the easements aforesaid. Such occurrence falls within what is defined in the quaint language of the common law as an “act of God,” for which no man can be held responsible. That was the misfortune of the appellees and others affected, and not the fault of the appellants; and, hence,- the previously acquired rights of the latter should not be thereby taken away.

7. It should perhaps be mentioned in this connection (although it can have no effect upon the rights aforesaid of the parties) that if the water above the mill-race, where it was originally diverted, were turned back into the original natural channel of the creek, it would be lost, except in. times of freshet, in the caves, which have in recent years also occurred in that channel above the lands of appellees, and, hence, would not reach them in uninterrupted flov/.

8. The appellee, H. W. Snidow, has certain contract rights to the use of water delivered through a certain pipe-log conduit extending from, the mill-race above the mill, but as that right is not drawn in question by the pleadings in this cause, nor affected by the decree complained of, no further reference thereto need be made.

For the foregoing reasons we are of opinion that the decree complained of is erroneous and should be reversed, and that the bill and suit of the appellees should be dismissed, which will be accordingly done.

Reversed.