Plaintiff, respondent herein, an irrigation company, as the owner of easements for its ditches and canals which extended across tracts of land owned by defendants, appellants herein, brought this suit to enjoin the defendants from preventing it from entering upon their lands for the purpose of cementing and waterproofing its ditches. *Page 199
The defendants are the owners of considerable tracts of land valuable chiefly for residential purposes. They admitted that plaintiff was the owner of easements over their respective lands and that these easements consisted of ditches and canals through which coursed water belonging to plaintiff. Oscar W. Moyle, one of the defendants, claimed to be a tenant in common with plaintiff as to the canals and ditches crossing his land; all of the defendants were stockholders in plaintiff company.
Plaintiff decided to waterproof its ditches to avert a loss of water. Defendants objected to this because there had grown up around the streams beautiful flora and trees which greatly enhanced the value of their properties for residences. The properties were not valuable for farming purposes and if the ditches were waterproofed many trees, such as tag alder and birch, would die for lack of sufficient water. This would decrease the beauty of the tracts to such an extent that their value for residential purposes would be lessened approximately 50%. They also objected that the manner in which plaintiff proposed to make these alterations in its ditches would make the streams more dangerous to children. Besides cementing the ditches, plaintiff proposed to make the channels narrow so that the water could course through in a swifter current, thus saving considerable loss of water from seepage.
The case was tried to the court without a jury and it found that plaintiff's easement entitled it to enter upon defendants' lands for the purpose of constructing, maintaining and repairing its distribution system consisting of ditches, canals, laterals, drains and weirs and also for the purpose of conserving and conveying its water through said distribution system, and therefore granted the injunction. However, the court also found that the manner in which the plaintiff proposed to make its alterations would be more dangerous to children and so it retained jurisdiction of the case to be able to pass upon any proposed alteration for the purpose of determining whether it would be done in such a manner as would not make it more *Page 200 dangerous to children and would not materially depreciate the value of the land for residential purposes.
Defendants appeal from the order and judgment enjoining them from interfering with the prosecution of the works by plaintiff and plaintiff cross-appeals from the court's finding and judgment that it retain jurisdiction of the case to see that the works are carried out under the conditions imposed in the decree.
At the outset it must be made clear that no water rights are involved in this case. The sole question to be determined by this court is: Will the proposed changes by the owner of the easement rights create a greater burden on the servient tenements?
The extent of an easement is determined by the grant, or if based on a prescriptive right, by its user, and once the character of the easement has been fixed no material change or enlargement of the right acquired can be made if thereby a greater burden is placed on the servient 1 estate. Stephens Ranch Live Stock Co. v. UnionPac. R.R. Co., 48 Utah 528, 161 P. 459; Nielson v. Sandberg,105 Utah 93, 141 P.2d 696; 28 C.J.S., Easements, § 95(b); Wiel, Water Rights in the Western States, 3rd Ed., Vol. 1, Sec. 502.
Appellants contend that respondent's proposal to cement the ditches would be a material change in its easement rights and that such changes would greatly increase the burden on their estates because the ditches as they are now constructed and have been since the inception of the easements allow enough water to seep through to enable tag alder, birch trees and other varieties of plant life to grow and luxuriate. Should the changes be allowed this seepage will not occur and the tag alder and birch trees will die and the other varieties of plant life will not be so abundant, with the result that it will occasion a substantial decrease in the value of the properties for residential purposes. They also contend that the proposed changes will increase the hazard to children and thereby also decrease the value of the properties for residential purposes. *Page 201
We do not understand appellants to claim that the seepage waters belong to them, but that they object solely on the ground that the change from non-waterproofed ditches to waterproofed ditches would be such a substantial alteration of the easements acquired by respondent as to amount to a material increase on the burden of the servient estates and therefore should not be allowed. It is appellants contention that respondent acquired its easements by prescription; that a prescriptive right is presumed by law to have its inception in a grant founded upon an agreement between the parties and the grant having been lost, the nature, character and extent of the easement is determined by its actual continued user and that the rights of the dominant and servient estates are mutual and that each is entitled to demand that the prescriptive right be exercised in the same manner it was being exercised while the right was being acquired. They citeWutchumna Water Co. v. Ragle et al., 148 Cal. 759, 84 P. 162,165, in support of these contentions. In that case the defendants had acquired a prescriptive right to divert a certain amount of water from the Wutchumna Water Company's ditch. In determining the rights of the parties to the suit in this water, the lower court attempted to attach a condition that notice be given to the water company before defendants diverted the water. No such notice had been given when the prescriptive right had been acquired. The Supreme Court held that court erred in attaching this condition because
"* * * the rights of a party who has acquired a prescriptive title, and the rights of one against whom said title is acquired, are mutual, and each is entitled to demand that the prescriptive right be exercised in the same manner that it was exercised while it was being acquired."
The theory that a prescriptive right may have attached to it a mutuality of duties found approval in an early New Jersey case,Carlisle v. Cooper, 21 N.J. Eq. 576 at page 597, wherein the following dictum appears:
"Prescriptions may be upon condition in restraint of the mode in which the prescriptive right is to be enjoyed, or may have annexed to *Page 202 them a duty to be performed for the benefit of the person against whom the prescription exists."
Among the cases cited in support of this dictum is Paddock v. Forrester, 3 Mann. Gran. 903. The court in that case held that in an action for trespass upon the lands of plaintiff wherein the defendant pleaded a right by prescription to enter for the purpose of digging minerals subject to compensating the occupants of the servient estate upon demand for the damages suffered as a result of such entrance, that the prescriptive right of entry and the duty to pay the compensation were one prescriptive right. As authority for this conclusion, the court cites Gray's Case, 5 Coke 78(b),
"where the plaintiff entitled himself to have common of pasture in the place in which, § and the jury found he ought to have the same common, but that every copyholder had used to pay time out of mind for the same common, a hen and five eggs every year. For although the court held in that case, that on this verdict the plaintiff should have judgment `for the plaintiff need not show more than makes for him, and is of his part,' yet it is expressly said by the court, `that if the jury had found that the plaintiff should have common, paying so many hens and eggs, the issue had been found against him, because it is parcel of the custom.'"
From this it would appear that in the old English law the conception was that an easement may not only be a restriction on the property rights of the servient tenement, but where the facts of either grant or user warrant, it may include a right to a benefit by the servient estate on the part of the dominant tenement.
In the instant case there was no evidence of an actual grant. The rights of plaintiff are based on prescription. From the inception, earthen ditches have been used. There was evidence that defendants' properties had never been valuable for farming but at least for the past fifty years have been valuable for residential purposes. It cannot be gainsaid that the beauty and safety of the premises are very material elements in their value. The court found that the growth of trees and shrubs did materially add to *Page 203 the beauty of the premises and to their value as suburban homes and that waterproofing the ditches would cause a portion of these to be destroyed, but concluded that the attractiveness of the property would not be appreciably affected. It is difficult for us to see how the destruction of trees which contribute to the beauty of a place will not affect the attractiveness of the properties for residential purposes. The court further found that the proposed manner in which the alterations were to be made would result in a greater hazard to the lives of children and concluded in that respect that it would be a greater burden on the servient tenements and therefore granted the injunction prayed for by plaintiff only on condition that the alterations in the ditches and canals be done in such a manner as not to make these more dangerous to the lives of children who might be on the premises.
In view of the fact that Utah is an arid state and the conservation of water is of the first importance, it is with great hesitancy that we subscribe to any contention which would make it appear to be more difficult to save water. It has always been the public policy of this state to 2-4 prevent the waste of water. Salt Lake City v.Gardner, 39 Utah 30, 114 P. 147; Wrathall v. Johnson,86 Utah 50, 40 P.2d 755; Little Cottonwood Water Co. v.Kimball, 76 Utah 243, 289 P. 116. However, as we have stated, this case does not involve water rights, but is concerned with the respective rights of the easement owner and the servient estates. These rights have to be determined from the facts of each individual case. The American Law Institute in its April 8, 1943 issue of its Proposed Final Draft of Group No. 2 of the Restatement of the Law of Property, Sec. 29, page 84, outlines the factors which should be considered in determining the extent of easements created by prescription. It is there stated:
"In ascertaining whether a particular use is permissable under an easement created by prescription a comparison must be made between such use and the use by which the easement was created with respect to:
"(a) their physical character *Page 204
"(b) their purpose
"(c) the relative burden caused by them upon the servient tenement."
In the instant case the respondent proposed to change the physical aspect of its easements by cementing the ditches to make them impervious to water and to accelerate the current of the water, thus preventing the loss of a considerable amount of water. It does not propose to change the purpose of the use. Its purpose will still be to course water through its ditches and canals. We are therefore confronted with the question of whether the proposed physical changes will place a greater burden on the servient estates under the facts of this case.
The following comment by the author of the American Law Institute report referred to above has proven to be of considerable aid in determining this question. He states on page 86 of his report:
"* * * A prescriptive interest presupposes an assertion of privilege by the person whose adverse use created it and a failure on the part of the owner of the servient tenement to interrupt the use. An increase in the burden on the servient tenement beyond that caused by the adverse use by which an easement was created is an undue increase if it is such anincrease as it may reasonably be assumed, would have provoked aninterruption in the adverse use had the increase occurred duringthe prescriptive period. It is an increase such that its tolerance is not implicit in the tolerance of the adverse use by which the easement was created * * *." (Emphasis ours.)
And as an example of what would probably be considered an undue increase in the burden on the servient estate he gives the following example:
"4. For the prescriptive period, A conducts water for irrigation across B's premises in an open ditch without interfering with the use of the water by B. B's cattle were accustomed to drinking from the ditch. B also received benefit from the seepage of the water from it. A attempts to replace the ditch with an underground pipe. Upon the facts given, a court would be justified in holding that he may not do this." *Page 205
As we have shown, the evidence in the instant case disclosed that the properties of the servient estates had always been chiefly valuable for residential purposes and that the beauty of the premises was an essential element in their value for such purposes. It is reasonable to presume that 5 under these circumstances if the easement owner had attempted to make the changes now proposed before its easement rights had matured, that the owners of the servient estates would have objected then, as they do now, and would have interrupted the user. The fact that the ditches as then constructed would insure a good supply of seepage water to the servient estates may well have been a paramount reason in allowing the ditches to be constructed on their premises. It was error therefore, under the facts of this case, for the district court to find that the proposed changes would not result in a material increase on the burden on the servient estates and to grant the injunction prayer for by respondent.
Reversed and remanded with instructions to dissolve the injunction. Costs awarded to appellants.
TURNER, J., concurs.