Utah-Idaho Sugar Co. v. Stevenson

STBAUP, J. The defendant Stevenson is the owner of 157 acres of land situate in Bbx Elder county. The other defendants are his lessees. In 1890 the Bear Lake & B-iver Waterworks & Irrigation Company, for the purpose of “constructing and maintaining thereon an irrigation canal or ditch to conduct water from the Bear Lake and Bear river” for the distribution of water for irrigating purposes, condemned a strip of land 150 feet in uniform width and about a half •mile in -length across the middle of Stevenson’s land. The canal proper, as constructed, is about sixty feet wide. During the irrigation season a stream of water courses the canal about sixty feet wide and about five feet deep. The plaintiff succeeded to all the rights of the condemner. Along the banks of the canal, and within the 150-foot strips, a kind of [187] roadway was constructed by plaintiff and its predecessors, wbicb was used by their canal riders, hydrographers, and other employees in maintaining and looking after the canal. The canal runs through Stevenson’s land east and west. His land on each side of the canal is farming land upon which hay and grain are grown. Adjoining his land on the .south is farming land; on the north, a public highway. The entire tract of Stevenson’s land is inclosed by a fence consisting of posts and wires. The fence on the north boundary, and at the north terminus of the condemned strip; was erected about one year prior to the condemnation; the fence on the south boundary of his land and at the south terminus of the condemned strip, about fifteen years ago, or about the time or shortly after- the condemnation. The fences at the north and south boundaries of his land are not constructed or maintained across the canal proper, but are maintained partly on the 150-foot strip, and up to the banks or water edge of the canal. At both the north and south termini of the condemned strip the defendants erected and maintained wire gates about ten or twelve feet wide, easily opened and closed, for the use and benefit of the plaintiff in passing along its right of way and in maintaining and looking after its' canal. The plaintiff brought this action to compel the defendants to remove the fences and gates from the strip of land condemned, and to prevent them from maintaining a fence or gate on any part of the 150-foot strip. The court found the facts as follows: “(3) That said 157 acres of land is inclosed and surrounded, save as across the water in the canal, by wire fences; that said fences mark the outer boundaries of said land and are a necessary and proper protection to said land and keep stock from entering upon said defendant’s farm lands; that the fence on the south side of said property has been maintained by "said defendants for more than fifteen years; that the fence on the north side of said property has been maintained by said defendants prior to and ever since the condemnation of said easement and the construction of the canal across said land, except that a few years' ago the same was moved [188] a couple of rods west to make room for said highway or road which runs parallel to said lands; that on each side-of said canal on the tops of the banks of said canal and where the employees, canal riders, hydrographers, teams, and wagons of said plaintiff travel, sufficiently wide and conveniently hung, defendants have erected and constantly maintained suitable gates consisting of three or four strands of wire fastened to a fence post at one end and to a board, stick, or plank at the other end, and said board, stick, or plank held in place to the next fence post by a loop of wire which is fastened to said board, stick, or plank and looped over said fence posts; that in order to open said gates it is only necessary to lift said loop of wire off from said fence post, throw down said wires, and go through onto the property of said defendant or out of the same as the case might be. (4) That it is a reasonable regulation by defendants in subjecting plaintiff’s easement to said fences and gates, and the inconvenience of opening and closing the same does not amount to an obstruction inconsistent with a reasonable use of said easement by said plaintiff. (5) That the decree of condemnation of said easement does not expressly or impliedly provide that said easement shall be an open one.” Upon these facts the court adjudged that the plaintiff was not entitled to recover, and dismissed its action. On appeal the plaintiff urges that the finding and conclusion that the maintenance of the fences was not inconsistent with a reasonable use of the plaintiff’s easement is unsupported by the evidence and is against law. The evidence tends to show: That, unless the defendant’s land is inclosed by a fence, live stock from adjoining farms and from the highway will stray and feed on his land and damage his crops; that, unless he is permitted to maintain the fences, as constructed, he will be obliged to construct a line of fences parallel with and on each side of the canal for its* entire distance. The evidence further tends to show that the gates maintained by defendants are easily opened and elosed and afford ready ingress and egress to and from the condemned strip of land. The fences in no manner in [189] terfere with the water coursing in the canal. The interference complained of by plaintiff is: That, when its employees, are riding or driving along the canal and approach the fences at the north and the south boundaries of plaintiff’s land, they are obliged to dismount and open and close the gates at each terminus of the condemned strip; that between June and August of each year, in order to remove and prevent aquatic growth in the canal, it is necessary to disc it every two weeks, and in the spring of each year to plow and scrape it; that in discing the canal two ropes are attached to the disc and extended to the banks of the canal where a team of horses drawing the disc is hitched to each end of the rope; and that the posts and fences constructed at the outer edge of the canal at each terminus of the strip interfere with the horses drawing the disc and traveling at such places along the bank and with the handling of the ropes as the two fences are approached. But it is not made to appear that the interference is unreasonable, or that the plaintiff is unreasonably delayed or hindered in doing such work, or unreasonably prevented from enjoying the uses and benefits of its easement. There is evidence tending to show that as the fences are approached the ropes can be slackened and easily lifted over the posts and fences, and the teams permitted to pass on through the gateways. Though such method was not practicable,, yet we see no great or unreasonable inconvenience or delay if the plaintiff, as the fences are approached were required to unhook the team on one side of the fence, drive the team through the gateway, and rehitch it to the rope on the other side of the fence. If there had been a number of fences along the condemned strip-, such a process might well constitute an unreasonable delay or hindrance in the progress of the work; but, as there were only two fences a half mile apart, we do not see that such a process would constitute an unreasonable hindrance, or the fences an unreasonable interference with a [190] proper use of plaintiff’s easement, or in doing tbe necessary-work for tbe maintenance and repair of tbe canal. It is well settled tbat “The owner of the servient estate may erect fences along the sides of a way, hut not across the way so as to entirely obstruct it. In the case of a ditch or artificial water course, he may erect fences across the course, provided the owner of the easement does not have an open right of way along the same. The grant of a way without any reservation of a right to maintain gates does not necessarily imply that the owner of the land may not do so. Unless it is expressly stipulated that the way shall he an open one, or it appears from the terms of -the grant or the circumstances of the case that such was the intention of the parties, the owner of the servient estate may erect gates across the way, provided they are so located and constructed as not unreasonably to interfere with the right of passage.” (14 Cyc. 1212.) "VVe are of tbe opinion tbat from tbe evidence it is not made to appear tbat tbe acts complained of so conclusively show an interference witb tbe reasonable enjoyment by plaintiff of its easement as to preclude a contrary finding. Tbe judgment of tbe court below is therefore' affirmed, ■witb costs. McCAETY, O. L, and FEIGN, L, concur.