(dissenting).
I am unable to agree with the majority opinion and therefore respectfully dissent.
The facts show that the lake in question is a landlocked lake, fed only by rainfall. The lake covers approximately thirty acres and stocked with fish purchased by the parties hereto and their predecessors in title.
In 1967 the parties entered into a contract which led to each party delivering a Quit Claim Deed to the other, whereby each party conveyed to the other their one-half interest in the lake and abutting land as particularly described in said deeds.
The evidence disclosed that Hefner’s investment in lands surrounding and adjacent to the lake was approximately $600,000.00, while the investment of lands of Story was slightly over $16,000.00.
In leading up to the agreement to exchange of said deeds the intentions of the grantors were shown by certain testimony of the parties.
Certain testimony of Hefner, leading up to the Quit Claim Deeds was as follows:
“Q. Did you meet with Mr. Story on about April 16, 1967 ?
“A. Yes, sir, at my house.
“Q. And what was the subject of that conversation ?
“A. We agreed to divide the property.
“Q. And did you tell, did at that conversation, did you tell Mr. Story why you wanted to divide the property ?
“A. Yes, sir.
“Q. What did you tell Mr. Story ?
“A. I told him that I would like to develop a ranch in the area, that there was some property that would shortly be for sale adjoining it, and I asked him if he’d like to go in with me and buy it. You want the conversation? He said no, that he didn’t have the money and he wasn’t interested either in ranching. So I told him I would like to get it divided final and completely so that I could go ahead and acquire property.
“Q. What was the date of this conversation ?
“A. April 15th, 1967.
“Q. And that was at your house ?
“A. Yes, sir, and that’s what I told him, and he said he would divide it with me.
“Q. Was there to be anything done to document this division ?
“A. He asked me to prepare the deeds, which I did.
“Q. And are those the deeds which are marked Plaintiff’s Exhibits 1 and 2.
“A. Yes, sir.
“Q. Now, did you subsequently meet with Mr. Story for the purpose of exchanging these deeds ?
“A. Yes, he came to my office on April 27th, 1967. I handed him a fully executed deed from myself and my wife to him. I handed him a deed from Mr. & Mrs. Story to me for my part that we agreed on, and my deed conveyed to him the part he’d agreed to, his deed would convey to me the part that I was to have in the division. He said, ‘I’ll take this deed and have Dorothy sign it and return it to you today.’ ”
Story testified on cross-examination, in part, as follows:
“Q. And then in 1967, in April, you and Mr. Hefner divided the property by way of' Plaintiff’s Exhibits 1 and 2, is that right?
“A. Correct.
“Q. Did he state that he wanted to divided this property so that he could have absolute ownership in part of it?
*569“A. Yes.
“Q. And that you would have the absolute ownership in your part, is that right?
“A. Correct.”
By the conveyances of the Quit Claim Deeds the parties divided the lake property into two individually owned tracts.
The judgment of the trial court, after describing the lands involved in the Quit Claim Deeds, states as follows: “By way of said Quit Claim Deeds, each of the parties acquired the exclusive right to the use of the lake over their own land as specifically described in said Deeds.
“Further, neither party has an easement over the property of the other, by implication, or otherwise.
“Further, there is not sufficient evidence to support the theory that a license exists in favor of either party for the use of the property of the other party.
“Further, the Court finds the issues in regard to any riparian rights in this particular lake in favor of the plaintiff and against the defendants.
“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the plaintiff and the defendants are each granted a permanent injunction against the other party or parties, respectively, and the others’ heirs, personal representatives, successors or assigns, prohibiting the trespassing upon all of the others’ land or water.”
The law pertaining to the ownership of the water under land in a case such as this where the lake is landlocked and fed by rainfall is governed by the first sentence of Title 60 O.S.1971, § 60, which reads, as follows:
“The owner of the land owns water standing thereon, or flowing over or under its surface but not forming a definite stream.”
It is true that after the Quit Claim Deeds were executed the parties and their guests continued to use the whole lake until Hefner built the fence across the lake on the dividing line of their respective property. Hefner built the fence after he became dissatisfied with so many people, as guests of Appellant, using the lake. During this time, however, the parties used the whole lake as permissive and not adverse. This permissive use did not ripen into an easement or prescriptive right. Curry v. Hill, Okl., 460 P.2d 933.
The majority opinion is written on the theory that Appellant had an easement by implication to enjoy the use of the whole lake and relies heavily on this point by citing the cases of Keller v. Fitzpatrick, 204 Okl. 192, 228 P.2d 367, and Gorman v. Overmyer, 199 Okl. 451, 190 P.2d 447.
The last above cited cases are readily distinguishable from the case at bar. These cases both involve facts where the one owner of two separate lots established driveways between the two lots, and part of the driveway being constructed on each of the two lots. The cases hold that where the owner of two or more adjoining lots employs one so that the other derives a benefit of a continuous permanent and apparent nature from the other, and sells the one in favor of which the quasi easement exists, such easement, being necessary to the reasonable enjoyment of the property granted, will pass to the grantee by implication.
In the present case at the time the Quit Claim Deeds were executed the property was owned jointly by the parties involved. By the Quit Claim Deeds the parties divided the lake property into two individually owned tracts. When their deeds were exe-' cuted and delivered a whole new ballgame came into being. The written deeds are unambiguous. The parties made a new bargain and should be required to live by it.
In a case of equitable cognizance, court will examine the record and weigh evidence, but the judgment will be sustained on appeal unless it is found to be against the clear weight of the evidence or is contrary to law or established principles of equity. Nunn v. Osborne, Okl., 417 P.2d 571.
*570In my opinion the judgment of the trial court is not against the clear weight of the evidence Or contrary to law. I believe the trial court should be affirmed.
I am authorized to state that WILLIAMS, C. J., and IRWIN, J., concur in this dissent.