Spear v. Cook

By the Court, Boise, J.: The defendants justify the trespass complained of under a grant from the plaintiff of an easement or right to use the premises which are the subject of the alleged trespass, for the purpose of conveying the water over the same. It appears from the allegations of the answer, that the plaintiff, in August, 1873, conveyed to J. W. Cook, defendant (and grantor of V. Cook), a parcel of land in lots 2 and 3 in section 5; and further, a grant of the water of the east fork of Spear creek, and the right and privilege to divert said water from its natural channel, and convey it upon and across said lots 2 and 3, conveyed to said Cook; and also to enter upon lot 1 in section 6 (plaintiff’s), and build, maintain, and repair, and keep up and in operation, all dams, ditches, pipes, aqueducts, or flumes necessary and proper for the conveyance of said water to the premises of said Cook. The rights of the parties in this case must depend on the construction of this instrument. 1. The defendnat, by this instrument, became the owner of all the water of the east fork of Spear creek. 2. The deed gives them the right to convey the same over said lot 1 to lots 2 and 3, but is silent as to the location of the part or parts of said lots to which the water may be conveyed. The grant is that the defendants may enter on lot 1 and construct and maintain all dams, ditches,, pipes, aqueducts, or flumes necessary and proper for such conveyance. This grant is very broad, and gives the defendants the right to take the water over said lot 1 in several channels or courses, if such should be necessary, in order that they may use it for several distinct purposes on said lots 2 and 3; that is, defendants may use it to supply a cannery on one portion [391] of said lots, and run one or more mills on other portions. Such is the natural and obvious meaning of the language used, and the instrument is to be construed strictly towards the grantor and to effectuate the object of the grant. (3 Pars. on Cont. 533, 534.) The deed grants the water to defendants to be used on lots 2 and 3, and as the use to which the water is to be applied is not named, the presumption is that it can be used for any purpose the defendants may desire, and at such time in the future as may suit their convenience. The defendants purchased and owned all the water of Spear creek, and the right to convey it over lot 1 in one or more channels. Suppose in 1873 defendants wished to divert a part of this water to their cannery, and constructed a flume for that purpose, which was sufficient to convey only a part of said water, the whole not being needed for that establishment, they did not thereby lose their right to take the balance of said water when they should need it, either for their cannery or for any other purpose. The purchase was of all the water and the right to convey it over said lot, and the defendants can not be supposed to have located their easement on said lot 1 until they have established channels sufficient to convey the water. If the defendants had constructed one or more passages for the water, which were sufficient for the purpose of conveying it, and had established the location of its entire use, then they might be deemed to have located their easement on this lot, and fixed its limits. But whether or not they had done this, it being a matter in parol, would be a question of fact to be established by evidence. Such being, as we think, the proper construction of this conveyance, we will consider the questions presented by the bill of exceptions, being objections taken to portions of the instruction given by the court to the jury in the trial of this case in the circuit court. It is claimed that the court erred in instructing the jury that Cook, in constructing his new flume, was “not necessarily confined to the precise location of the old flume in all its parts.” It is enough, says the court, “if the location is [392] substantially tbe same. If it followed substantially tbe same route, tbe fact that it deviates in places from tbe old line will not necessarily preclude tbe defendant from exercising his right upon the new line.” We think this instruction was proper, for it might be necessary to deviate in order to avoid defects which so far impaired the easement as to render it valueless; and the question whether it did substantially follow the old line was a matter for the jury, and a necessary deviation by the defendant w'ould not be a violation of his easement, provided he had already located and used a definite line. The next error claimed is to the following instruction: “If, through mistake, he (Cook) so constructed his first ditch that upon experiment it was found not to be large enough to answer the purpose, he will not be precluded from constructing a new flume or ditch of sufficient capacity.” We think this construction is correct, for the reasons stated above, because Cook owned all the water, and had a right to a ditch of sufficient capacity to bring it; otherwise, his grant would be in part defeated. What we have said in reference to the plaintiff’s objections to instructions numbers three and five is sufficient to dispose of the objections to instructions six and eight, which involve the same questions. The foregoing are objections made by the plaintiff to the general charge of the court. The court then gave certain instructions asked for the respondents, which appear in the foregoing statement of the case, to all of which instructions the plaintiff excepted. We think all these instructions correct, and they are in accordance with the views heretofore expressed, which we have already said in construing the conveyance by which respondents claim, and it will not be necessary to repeat these views here, or further consider the questions presented by these instructions. The plaintiff then asked certain instructions, which were given with certain modifications, which modifications were excepted to. These instructions and modifications are also set out in the foregoing statement of the case. These instructions, except the last, number five, raise no questions differing [393] materially from those already discussed, and need no further notice. Instruction number five is as follows: “The grant by Spear to Cook was simply a grant of a right of way and the right to construct a passage to convey water, and any use of the easement for the transportation of wood, was in excess of the grant; and any change of route, or of the form of the flume, not necessary for the mere conveyance of water, was unlawful, and subjected Cook to the action for damages.” The court refused to so instruct the j ury, and gave such instructions with the addition in effect as follows: That Cook had a right to construct a flume that would carry all the water of the creek, and if the water conveyed was sufficient to carry wood, then Cook had the right to use his flume and water therein to convey wood, provided he did not thereby injure the plaintiff. All the questions presented by the several propositions contained in this instruction, except the right of the respondent to float wood in their flume, have been sufficiently noticed in what we have already said in defining the rights of the respondents under the conveyance by which they justify. The court simply said to the jury that the respondents had aright to float wood in the water conveyed, if they did not thereby injure the plaintiff. The object of the instruction asked was to have the court say to the jury that the floating of the wood was unlawful, and that the doing of this unlawful act was a trespass, and would entitle plaintiff to nominal damages without the proof of any actual injury. We think the flume and the w^ater w'as the property of the respondents, and that they might use them in any manner they pleased, if they did not thereby injure the plaintiff, and were only responsible to the plaintiff for actual damages caused to plaintiff by such use, and the question of actual damages caused by floating the wood, was properly left to the jury. We think there were no substantial errors in the instructions of the circuit court, and the judgment will be affirmed.