Fitzstephens v. Watson

344 P.2d 221 (1959)

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Nature of the Case

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Facts

Both of the tracts involved originally constituted one large parcel known as the 'Davies Ranch.' Various seeps and springs rise on the servient tract owned by D. While Davies was still the owner of the entire tract known as the Davies Ranch he installed a water system to make use of the spring water on his land. Davies and his wife conveyed the dominant tract, consisting of approximately three acres, to the Mairs. A part of the consideration for the sale of the dominant parcel was an oral agreement between the parties where the grantors promised to supply to the grantees water from the system on the grantor's land. Mairs connected a two-inch pipe to the pipeline on the land retained by the grantors and used the water on the dominant tract. Davies and his wife executed and delivered to the Mairs an instrument entitled 'Easement Deed' which was dated '--- January 1947,' acknowledged on October 8, 1947, and recorded on October 25, 1947. As part of the deal, the grantors further agreed to maintain an adequate reservoir and pipeline to furnish the water. On November 4, 1947, Davies and his wife conveyed the servient tract to D. The grant recognized the water rights. The Mairs developed a part of the dominant tract as a fishing resort. On April 27, 1948, they sold the eastern two-thirds of the dominant tract, including the resort buildings, to P. No mention was made in the deed of the water right described in the 'Easement Deed.' P made improvements on his tract, including the construction of additional cabins, a trailer camp, and laundry facilities, all of which used water from the pipeline. D developed the servient tract as a fishing resort which is in competition with P's business. Ps water supply was interrupted for periods ranging from five minutes to five hours by D closing a valve in the pipe leading to P's land. D contends that the water was shut off to obtain a flow of water in the pipeline leading to their buildings when the water supply was short. D contends that the shortage of water in the system was due in part to P's wasteful use of the water. P claims harassment. P was forced to obtain a revocable license to draw water from a spring on the property of a landowner on the opposite side of the Rogue River. The water was pumped across the river through plastic pipe. P has included the cost of installing and operating this system as a part of the damage alleged to be attributable to D's unlawful conduct in cutting off P's water supply. On October 9, 1954, D informed P that P would not be permitted to use any water from the system from that time forward. On February 15, 1955, P filed the present suit. The trial court held that the 'Easement Deed' created 'a valid and perpetual easement and is binding and effective as to all its terms and covenants therein contained.' D was permanently enjoined from interfering with P's use of the water and from violating the covenants in the deed. The trial court rejected P's claim for damages.