Aylmore v. Bickford , 1921 Wash. LEXIS 913 ( 1921 )

Mitchell, J.

— Prior to December, 1905, James F. Lane and John P. Hoyt appropriated to their own use the waters of a spring, or a number of springs, originating on block 4 of “White and Noble’s Addition to East Seattle. Jabíes F. Lane and wife owned twenty-five lots of block 4, upon which lots the springs were situated, and alone or with the Hoyts owned block 3 of the same addition. John P. Hoyt and wife owned real property adjacent to that belonging to Lane, which was subject to, or conveniently located with reference to, the flow of the water from the springs. Together they had constructed a storage tank near the springs and had piped the water to their several properties. Arthur F. Bickford and Ernest L. Bickford were the owners of nearly all of J. T. Forrest’s First Addition to East Seattle, and had not the waters of the spring been diverted they would have flowed over and across the Bickford property, but not over that portion of it subsequently acquired by Reeves Aylmore, Jr., plaintiff. As a matter of amicable adjustment of any question that might otherwise arise in regard to the use of the water, James F. Lane and wife, as parties of the first part, and John P. Hoyt and wife, as parties of the second part, and Ernest L. Bickford and wife with Arthur F. Bickford and wife, as parties of the third part, entered into a written contract (hereinafter spoken of as the water contract) on December 29,1905, concerning the storage and use of the water. The contract provided that, whereas the first and second parties had appropriated the waters to their own use for domestic and irrigation purposes, and had erected a storage tank on block 4 wherefrom the water had been piped to their properties, at an expense of $350; and whereas the parties of the third part, through whose lands the rivulet or stream flowed in its natural course before it was appropriated, desired to tap the water pipe of the first and second parties for the taking of water therefrom for domestic and irrigation purposes, and which was agreeable to the first and second parties, the water to be so taken, however, not to exceed one-third of the flow in the pipe, it was agreed:

“That the said parties of the first and second parts will allow the said parties of the third part to tap their said pipe at some point on said block three and will and do hereby grant and convey to said parties of the third part, their heirs and assigns, the right to so tap said pipe and take therefrom, at the place where so tapped for the uses and purposes hereinbefore mentioned, not to exceed one-third of the water flowing therein;

“And said parties of the third part in consideration of the covenants and agreements on the part of the parties of the first and second parts, do hereby agree to and do hereby grant and convey unto the said parties of the first and second parts, their heirs and assigns, all of the right, title and interest of the said parties of the third part which they have had or may have to the waters of said spring or rivulet and the use thereof by reason of the fact that if not appropriated, as hereinbefore stated, it would have flowed in its natural state across J. T. Forrest’s First Addition to East Seattle owned by said parties of the third part, or otherwise, it being the intent of all parties hereto to adjust by this agreement, any and all claims which they or either of them may have had or may have to the waters of said spring or rivulet and the use thereof where it has been appropriated as hereinbefore stated, or elsewhere, and to respectively give, grant and convey to each other the right to appropriate, divert and use the said waters equally for the purposes herein-before specified; that is to say, to the parties of the first part one-third thereof, to the parties of the second part one-third thereof, and this indenture is and is to be taken as a full and complete conveyance, each to the other, of - any and all rights of each and all parties hereto to said waters and to the use thereof for the accomplishment of the purposes herein set out.”

It was further agreed that the parties of the third part should pay $116.67 as their one-third of the cost of the construction of the works as they then existed, and that the tapping of the water pipe should be done in a workmanlike manner, from which point the distributing pipe of the third party across block 3 to reach the J. T. Forrest First Addition should be placed deep enough not to interfere with the ploughing and cultivating of the ground. It was also agreed that the expense of maintenance, and of additions agreed upon, down to the point where the two-inch pipe should be tapped, should be borne and shared equally by the parties, and that the parties should not make use of their respective shares of the water except for the purposes mentioned and upon the designated properties of the parties. It was further agreed that the third parties might, instead of tapping the pipe, take their share of the water at the intake on block 4 and from thence conduct it to a tank to be erected by the third parties on their own property, in which event, and if parties of the third part do not exercise their right to tap the two-inch pipe at some point on block 3, the parties of the third part shall be relieved from paying the sum of $116.67 mentioned and shall be relieved from paying any of the expenses of maintenance, but not relieved from their share of expense incident to any improvement agreed upon by the parties for the purpose of improving the waters or flow thereof to the point at which it may be used for the benefit of the parties. The concluding paragraph of the contract is as follows:

“It is further mutually expressly covenanted and agreed that this indenture is and shall be of full force and effect and binding upon each and all of the parties hereto, and their and each of their heirs, executors, administrators and assigns, and shall be taken and considered as and shall be covenants and agreements running with the land and binding upon the grantees respectively of the above named parties and each of them, as the owners of each and all of the land hereinbefore described respectively.”

The contract was recorded in the county auditor’s office and afterwards James F. Lane and John P. Hoyt acquired another lot in block 4 upon which there is a spring, and they and the Bickfords purchased nine other lots or parcels of land near the spring as a precaution against contamination of the water. After the date of the water contract, the Bickfords occupied their property in Forrest’s First Addition as a home. For their water supply they laid, at their own expense, a water pipe from the intake at the springs to two barrels, used for storing the water, on their own premises, and thence to their residence. Some time after the date of the water contract a large water tank was erected near the old one, and shortly the old one fell into disuse and decay. A replat of Forrest’s First Addition was made and filed, designating the property as tracts 1 to 10. Tracts 3 to 10, of different sizes from a small area to four acres, were owned by the Bickfords. By a statutory warranty deed dated October 5, 1910, delivered shortly thereafter, tract 5 of the replat was conveyed to Reeves Aylmore, Jr., on which he built a residence, completing it about May, 1911. It has been his residence since that time.

About December, 1910, or January, 1911, and after the sale of tract 5, the Bickfords changed the plan of bringing water to their lands. They connected a two-inch water pipe with the large tank, installing a shutoff at that place, laid the pipe across the lands of James F. Lane and John P. Hoyt and thence to the Bickford residence, and then on to a public road which crosses the replatted property, and along the highway to the property line of tract 5, putting in a shut-off. During the building operations on tract 5, a private service pipe was connected at the property line, which has at all times since been used to supply that tract with water. Subsequent to the sale of tract 5, other tracts were sold and conveyed by warranty deeds, direct or intermediate from the Bickfords, to defendants Sine I. Tennant, S. H. McElfactrick and wife, and Perie A. Ament and husband, each of whose tract was supplied, when needed, with water in the same manner by extending the pipe to the property line and putting in a shut-off. The defendants Tennant, McElfactrick and Ament have paid water rent, being cautious, on purchasing their properties, in agreeing with the grantors that water should be delivered in the manner it has been for a consideration. It seems to have been understood that the plaintiff should not pay anything for his use of wat§r the first year. Thereafter, for two or three years, he paid an annual charge made by Bickford, and then for two or three years he refused, as he testified, to pay anything as water rent, while Bickford testified his understanding was that payments were refused because Beeves Aylmore, Jr., claimed he had been compelled on two or more occasions to assist in cleaning out or repairing the intake, ditch or water tank during the absence of Bickford. Again from July, 1917, until after November, 1919, Bickford was absent from the state, and upon his return and demand that Beeves Aylmore, Jr., pay water rent, which was refused, he threatened to remove the water pipe and discontinue the service to his property. This suit was then brought by Beeves Aylmore, Jr., against the Bickfords and their wives, John P. Hoyt (his wife having lately died), Sine I. Tennant, S. H. McElfactrick and wife and the Aments.

Upon the trial a judgment was entered in favor of the plaintiff and defendants Sine I. Tennant, S. H. Mc-Elfactrick and wife and Perie A. Ament and husband, that each was the owner of his respective tract in the replat of Forrest’s First Addition and entitled to the undisturbed use of the water flowing from the spring located on block 4 of “White and Noble’s First Addition to Seattle, through the pipe laid to the tract of each, in the proportion that it bears to all the land in J. T. Forrest’s First Addition, coupled with the .obligation on the part of each tract owner to pay to James F. Lane and John P. Hoyt the proportionate share for the upkeep and expense incident to the maintenance of the water plant located on block 4 and the making of any additions thereto which may be agreed upon by the parties in interest, and to pay defendant E. L. Bickford each his proportional share of the installation and upkeep of the said Bickford’s system after said water is diverted. The Bickfords were enjoined from interfering with the flow of the water to the premises of the owners of the tracts. The Bickfords and John P. Hoyt have appealed.

It appears that, about the year 1910, Arthur F. Bickford aud wife succeeded, by conveyance, to the interest of Ernest L. Bickford and wife to all of the property they owned in J. T. Forrest’s First Addition, and that James F. Lane and John P. Hoyt have been punctually paid by Mr. Bickford one-third of all expenses for maintenance of the works and costs of improvement, and, also, of the lots purchased to protect the springs, according to the terms of the water contract. There has been no controversy between the parties signing the water contract.

In their brief respondents say: “The case hinges entirely upon this question — is the agreement entered into between J. F. Lane, John P. Hoyt and Ernest L. Bickford (the Bickfords) one known as a covenant running with the land 1 ’ ’ There is nothing in the water contract that amounts to a covenant running with the land, or at all, with reference to the water, by which James F. Lane and wife and John P. Hoyt and wife agreed to deliver water at the lines of the properties now owned by the respondents. As to the point of delivery of the water, they simply agreed that the Bickfords might take one-third of it from the intake at the springs, or by tapping the water pipe on the lands of James F. Lane and John P. Hoyt, with the right in either event to cross their lands for the purpose of reaching the lands of the Bickfords. Neither is there anything in the terms of the water contract that amounts to a covenant running with the land, or at all, with reference to the water, by which the Bickfords agree or are obligated to deliver any of the water to anyone at any place at any time. They were granted the right and privilege of receiving from the intake at the springs, or at another place on the lands of James F. Lane and John P. Hoyt, one-third of the water. None of the parties signing the water contract bound himself to deliver any water at the lines of the properties of the respondents.

Bather than as suggested by the respondents, the question in the case is: Are the Bickfords, or either of them, under obligations to deliver water at the properties of the respondents ? It has been seen that the water contract does not provide for the service. There is nothing in the deeds of conveyance to the respondents which requires it. Bespondents Sine I. Tennant, S. H. McElfactrick and wife and the Aments have been receiving the service by independent agreements, and the courts are without power to make new ones for them. Nor is the respondent Beeves Aylmore, Jr., entitled to the use of the pipe line without the consent of Mr. Bickford, the owner of it, who laid and constructed it, after the sale of tract 5 to the respondent, in such a manner as to clearly indicate his dominion and control over it. Some contention is made on behalf of the respondent Beeves Aylmore, Jr., because of the fact that in making his purchase he was furnished an abstract of title showing the water agreement which had been recorded. As a representation it amounted only to saying the water contract was existing and outstanding, and cannot be considered as a representation, or inducement for the belief, that thereafter his grantor would or should construct and maintain at his own expense a line of water pipe to tract 5, for there was no such provision or obligation defined in that contract.

Unaided by any findings of fact by the trial court, an examination of the record in this case leads to the conclusion that the judgment is erroneous. The judgment is reversed, and the cause remanded with directions to set aside the injunction and dismiss the action,

Parker, O. J., Fullerton, Tolman, and Bridges, JJ., concur.