Spensley v. Valentine

Lyon, J. The testimony satisfactorily shows that the lots of the plaintiff in error, and the water power or right granted to him therewith, are worth the sums at which the lots, were valued by the board of review. On the other hand, it is- undisputed that, excluding such water right, the lots are not worth to exceed one-fifteenth of the Valuation placed upon them by the board. If such water right is merely a personal one — if it be only a right or an easement in gross — the value of it has been illegally included in the valuation of the lots by the board of review, and such valuation is, in that event, so largely in excess of the true value, that the proceedings of the board must necessarily be vacated and set aside. But if such right or easement is appendant or appurtenant to the lots, the assessment is valid and must be affirmed. Hence the question to be determined is, whether such water right or privilege is an easement in gross — a mere personal right — or is appurtenant to the lots of the plaintiff in error. [160] The language of the grant is, “ the perpetual right to draw from the pond through the head race on the north end of said lots, and use, 800 square inches of water,” etc. These words may mean that the point or place through which the water is to be drawn is in the north line of the lots. If this is the true construction of the grant — if, by its terms, the water must be drawn from the race on. the lots of the plaintiff in error — it would seem to demonstrate that the easement is appurtenant to the lots. An easement of a way over the land of another, which terminates on the land of the owner of the easement, is appurtenant to the land of such owner. Garrison v. Rudd, 19 Ill., 558. The same principle seems applicable to this case.' On the other hánd, the language of the grant may be construed to give the plaintiff in error the right to draw the water from any point in the head race, without regard to his lots. Were this construction to prevail, the easement is in gross — a mere personal right —- in no way appendant to the lots, and not to be considered as an element of value in making an assessment of the lots for taxation. Which of these constructions is the true one? It is a’rule of law applicable to this question, that an easement in gross is never presumed when it can fairly be construed to be appurtenant to some other estate. Washburn on Easements, 29, 161. This rule would probably require us to hold the easement appurtenant to the lots, even though there were no other guide than the language of the grant itself, to enable us to ascertain its meaning. But there are other clauses of the deed which contains this grant, which show conclusively that the parties intended that the water granted should be used on the lots, and hence, that the easement is appurtenant to the lots. The deed contains a covenant that the grantee, his heirs and assigns, shall pay a portion of the expense of keeping the dam and race in repair; and in case of failure to do so, it is provided that the grantors, their heirs or assigns, “ have the right to enter upon the above described land, and into anv buildings which may [161] he erected thereon, and to shut off from said land above described all of ike water herein above mentioned, until such pro rata payment shall be made, and for that purpose and no other; all water gates which may be constructed on said lands are hereby declared to be the property of the parties of the first part, their heirs and assigns.” The lands referred to in the foregoing extract are the lots in question. Had the parties intended that the easement should be personal, and that the plaintiff in error should have authority under the grant to draw the water from the race at any point he pleased, the right of re-entry reserved in the deed would not have been restricted to the lots of the plaintiff in error, but would have been as broad and extensive as the grant The facts that the lots are unimpiwed, and that the head race is not constructed or excavated to them, only affect the value of the property. They do not change the character of the easement or the rule of taxation in respect thereto. The right of the plaintiff in error to construct the race to his lots and utilize thereon his right to draw water from the race, can not be successfully denied. But it is said that, if appurtenant to any of the lots, the easement can only be appurtenant to lots 147 and 148, because it was included in the mortgage on those lots and was not included in the mortgage on lot 149 ; and that therefore the latter lot should be valued independently of the water right. We think that the extent and character of the easement is fixed and determined by the final conveyance, and is not affected by the previous mortgages; and that the same is appurtenant to the three lots by virtue of such conveyance. We find no error in the decision and order of the board of review fixing the valuation of the lots in question, and the same must therefore be affirmed. By the Court. — So ordered.