I concur in the order made, but I reach my conclusions by a less circuitous route. I think some of the bases upon which the prevailing opinion rests are rather unstable. I do not subscribe to the reasoning of the prevailing opinion as to the legal fiction which it assumes as a basis for its conclusions. The fiction set up by the old English common law of a lost grant as a ground for prescriptive rights, being without basis in fact and without necessity in law, should be utterly disregarded. It is as unreal and unsubstantial as the "will-o-the wisp", — an ignis fatuus. It is merely a legal tower of Babel, which leads to a confusion of tongues. Law should be more realistic — it should stand on its own feet, supported only by its necessity, its reasonableness, and its logic. Whatever may have the seeming necessity in the beginning for the fiction of assuming a grant, it no longer exists. The doctrine of prescriptive rights is firmly imbedded in our jurisprudence. In the trial court, the right is established upon the same theory, and by proof on the same lines and on the same order as in the title suits based upon adverse possession. The only apparent differences are in the element of time and payment of taxes. Even in adverse possession the payment of taxes is not necessary as no taxes were assessed against the property. Easement rights for water ditch are non-taxable in this state. The difference in time — seven years to acquire title and twenty to acquire *Page 242 an easement — stands logically upon the difference in the nature and extent of the possession and use. In title cases founded on adverse possession there must be a complete and exclusive exercise of dominion by the claimant, or interloper, for seven years — which is deemed sufficient time to establish the adverse nature of the claim. However, in acquiring prescriptive easements, since the owner of the servient estates is only partially disposed — that is, there is only a limited interference with his property (the right of exclusive possession and use) a longer period is required to establish that the use or claim in the property is adverse and not permissive. All the elements involved and necessary to establish a prescriptive easement, are the elements of adverse possession. To say such rights are founded upon presumed grants is simply another illustration that "the voice is Jacob's voice, but the hand is the hand of Esau." I think therefore that in this day in our law, prescriptive rights are founded upon adverse possession and not upon presumed grants. Harkness v. Woodmansee, 7 Utah 227,26 P. 291; Yeager v. Woodruff, 17 Utah 361, 53 P. 1045;Coleman v. Hines, 24 Utah 360, 67 P. 1122; Morris v.Blunt, 49 Utah 243, 161 P. 1127; Bolton v. Murphy, 41 Utah 591,127 P. 335; Farr v. Wheelwright Const. Co., 49 Utah 274,163 P. 256.
Starting from the conception of the origin of an easement, I agree that the right of the dominant estate is broad enough to enable the owner to effectively utilize the right. As stated by Mr. Justice WOLFE this does not permit him to put added burdens on the servient estate, but the right to convey water through a ditch necessarily involves the right to maintain a ditch to convey the water. Since the water is the valuable thing, and its safe conveyance is the only reason for the ditch, it follows that a ditch may be maintained that will convey the water with a minimum of loss. If in maintaining the ditch or conveying its water the dominant estate puts an added burden upon the servient estate not within the nature and extent of the burden imposed by the easement as its existed — in other words if *Page 243 the dominant estate seeks to enlarge its easement and thereby imposes greater burdens upon the servient estate, it must respond in damages to the servient estate for such added burden. I do not think we can say at this time that there would or would not be damage to the servient estate because that question is not here. The court did not award any damages and no question is raised as to that matter. On the record as it stands the writer is unable to see any damages, but the question not being here, I think we should not foreclose the issue. At this time we cannot tell what might be done in the future as to the ditch, nor as to increased burdens. That question should be left until it arises. By the same token I agree the trial court erred in holding the proposed improvement was a damage or increased burden which should be enjoined, and in retaining jurisdiction to pass upon the methods of leak proofing the ditch before improvements are undertaken. I agree that the servient estate has no right to have water seep from the ditch, and no right to prevent the dominant estate from leak proofing its ditch.
I therefore concur in the order made.