Davison v. Columbia Lodge No. 8 , 90 Wash. 461 ( 1916 )

Bausman, J.

One Smith owned a lot fronting upon a city street. The front half he sold to respondent’s grantor and, before he sold the rear half to appellant, he laid in the front half a line of pipe from the city water main to the rear half. In the next year he sold this half to appellant. After that sale, his grantee of the front half sold that portion to the respondent. All these conveyances were without mention of the pipe and without reservation concerning it. Except as it may have been visible at the time it was put in, it has ever since been invisible and its use unknown, though, during more than ten years, the appellant occupying the rear half has been using the city water through it.

We do not have to do here with the question of easement by what is called implication of necessity, because it happens that, at slightly increased expense, the occupant of the rear half can obtain service of water through an alley. Nor have we to do with the question of implied grants and implied reservations, for, at the time of the conveyance to respondent’s grantor of the front half, there was no service or pipe to the rear half. Before that time, the original owner of both had been serving his rear half from a pipe in a dwelling upon the front half, which practice, when he sold the rear half, the city forbade, requiring him to install the additional and now contested line. We have, accordingly, to discuss only the rights acquired by adverse user.

As for the period of user, that is long enough, but as to notoriety, the testimony is unanimous that nobody in the line of the servient title ever was aware of this pipe. The first grantee, respondent’s grantor, did not occupy the premises before the laying of this direct pipe and never knew of it. Nobody else was aware of it until, in preparing foundations just before the commencement of this suit, the respondent uncovered it. Nor can we attach consequence to the fact that the rear occupant was a public user of water in the city records.

Those who hope to establish rights over other people’s lands without contract must establish those claims by such open uses or assertions as give the other party an opportunity or duty to deny them. Peoples Sav. Bank v. Bufford, ante p. 204, 155 Pac. 1068. Such cases as Cogswell v. Cogs-well, 81 Wash. 315, 142 Pac. 655, involving easements existing before severance of an estate, have no application here.

Judgment affirmed.

Morris, C. J., Main, Parker, and Holcomb, JJ., concur.