Fayter v. North

BARTCIí, O. J.,

after stating the facts, delivered the opinion of the court.

The appellant insists, among other things, that the court erred in permitting the introduction of evidence respecting the conversations between the vendor and the vendee and admissions of the vendor had and made, at the time the bargain of sale was made and when the deed was executed, concerning the drain ditch, and use of the water flowing therein, because, as is urged, such evidence was inadmissible as varying the terms of a written conveyance. This objection to the admission of the testimony referred to is, under the circumstances, not well founded. We recognize the general rule, declared by many of the authorities cited by the appellants, that, where contracting parties have reduced their agreement to writing, the terms expressed cannot be varied by parol; the writing itself being the evidence of the agreement. The testimony covered by the objection in this case, however, was introduced for no such purpose. It was introduced, not to vary the terms of the deed, but to explain a latent ambiguity, and to show what was in the minds of the contracting parties — what was intended should pass under the terms “privileges and appurtenances” employed in the instrument. The testimony was not only admissible for such purpose, but as evidence of the condition of the property when the bargain of sale was made, and to show how the parties themselves construed and applied tbe contract to tbe subject-matter. Tbe trouble here is uot that tbe terms employed are insensible, having no settled meaning, but that they are admissible of several interpretations with reference to the subject-matter in contemplation at tbe time of tbe making of tbe contract. Tbe terms employed may or may not include tbe right to tbe water flowing in tbe ditch in question as a part of tbe subject of sale. It is admitted, however, that water rights in another ditch did pass under and by virtue of tbe same terms, without specific mention in tbe instrument, and, such being tbe case, it became properly a matter for investigation dehors tbe instrument, to determine whether the disputed rights in tbe drain ditch did not also pass. That such rights may pass with tbe land by conveyance was recognized by our statute (section 2183, Gomp. Laws 1888).

When, therefore, tbe appellants claim that tbe right to tbe use of tbe water from one ditch is not embraced in those terms, and at tbe same time admit that such a right in another ditch is embraced in them, both ditches being upon tbe same land and equally obvious to tbe parties while making tbe contract of sale, and neither one of tbe ditches being mentioned specifically in tbe conveyance, they themselves attach one meaning to tbe terms in tbe one instance and a different meaning to them in tbe other, and thereby admit that the terms as employed are susceptible of different meanings, and hence that there exists a latent ambiguity. Such being the case, how, or by what means, is the court to interpret those terms ? How is it to ascertain what was in the minds of the contracting parties at the time of the sale — what things they intended to include in the conveyance by the use of the terms in question ? The instrument itself affords no means whereby to ascertain the meaning of the parties; no specific reference to any ditch or water right being contained therein. Clearly, therefore, evidence dehors the instrument was not only admissible, but necessary to place the court in-the light of the surrounding circumstances existing at the time of the transaction, so as to enable it to perceive what was in fact included in the general terms employed in the writing. Whenever the .terms of a written instrument are susceptible of more tban one interpretation, or a latent ambiguity arises, or the extent and object of the instrument cannot be ascertained from the language employed, parol evidence is admissible to show the sense which the contracting parties attached to the terms or language employed in the instrument; and for this purpose the acts and conversations of the parties, at or about and subsequent to the time of the transaction, relating to the subject-matter constitute proper evidence.

“In the light of what was said and done at the time of a transaction, of the conduct of the parties thereafter, and of the interpretation which they themselves have placed upon it, a court is more likely to arrive at the real meaning and intent of the parties when the terms employed in an instrument are indefinite or ambiguous. Such evidence is not received to vary the language of the writing, hut to explain what was meant by its use. It serves to explain the subject-matter, and enables the court to determine what the instrument referred to and embraced. Its object is to elucidate the meaning of the parties.” (Brown v. Markland, 16 Utah 360, 52 Pac. 597, 67 Am. St. Rep. 629.)

In Wood’s Practice Evidence, section 25, the author says:

“The rule that parol evidence is admissible to explain and apply a writing, where it does not contradict or vary it, is universal in its application, and is in accordance with another rule which is well recognized, that a writing may be read in the light of surrounding circumstances in order that the true intent and meaning of the parties may be arrived at, and that independent and collateral facts, about which the contract is silent, may be shown by parol. The surrounding circumstances, and subsequent conduct and acts of the parties, are material and competent to show the interpretation which they put on an agreement, and what conditions they have waived. It is allowable also, in many instances, to show in evidence pre-existing and contemporaneous facts and circumstances attending the negotiations of the parties in making the contract as such facts often throw light upon the disputed contract itself.”

And in section 26 he says:

“Parol evidence may be admitted to prove a collateral agreement connected with stipulations in a deed, and in no respect repugnant to it.”

So in Taylor on Evidence, section 1194, vol. 2, it is said:

“It may be laid down as a broad and distinct rule of law that extrinsic evidence of every material fact, -which will enable the court to ascertain the nature and qualities of the subject-matter of the instrument, or in other words, to identify the persons and things to which the instrument refers, must of necessity be received. Whatever the nature of the document under review, the object is to discover the intention of the writer as evidenced by the words he has used; and, in order to do this, the judge must put himself in the writer’s place, and then see how the terms of the instrument affect the property or subject-matter.”

In Browne, Par. Ev. section 54, speaking of written contracts, tbe author says:

“The conversations and acts of the parties, at and about the time of the making of the contract, as well as subsequent to the making of the contract, are admissible in evidence to show what sense the parties attached to any term or phrase used in the contract, which is in itself susceptible of more than one interpretation, or which, viewed in the light of the evidence explanatory of the subject-matter, the relations of the parties, and the circumstances, may reasonably be susceptible of more than one interpretation.”

In Ganson v. Madigan, 15 Wis. 158, 82 Am. Dec. 659, Mr. Chief Justice Dixon, speaking of written contracts, said:

“If evidence of surrounding facts and circumstances is admitted to explain the sense in which the words were used, certainly proof of the declarations of the parties, made at the time of their understanding of them, ought not to be excluded. And so it was held in several of the cases above cited. 2 C., M. & R. 422; [Emery v. Webster] 42 Me. 204 [66 Am. Dec. 274; Waterman v. Johnson], 13 Pick. 261. Such declarations, if satisfactorily established, would seem to be stronger and more conclusive evidence of the intention of the parties than proof of facts and circumstances, since they come more nearly to direct evidence than any to be obtained, whilst the other is but circumstantial.”

So in Shore v. Wilson, 9 Clark &F. 566, Lord Chief Justice Tindal, after stating the general rule applicable to written instruments, said:

“The true interpretation, however, of every instrument being manifestly that which will make the instrument speak the intention of the party at the time it was made, it has always been considered as an exception, or, perhaps to speak more precisely, not so much an exception from, as a corollary to, the general rule above stated, that where any doubt arises upon the true sense and meaning of the words themselves, or any difficulty as to their application under the surrounding circumstances, the sense and meaning of the language may be investigated and ascertained by evidence dehors the instrument itself; for both reason and common sense agree that by no other means can the language of the instrument be made to speak the real mind of the party.”

Likewise in Reed v. Insurance Co., 95 U. S. 23, 24, L. Ed. 348, Mr. Justice Bradley, delivering tbe opinion of tlie court, said:

“Although a written agreement cannot he varied (by'addition or subtraction) by proof of the circumstances out of which it grew and which surrounded its adoption, yet such circumstances are constantly resorted to for the purpose of ascertaining the subject-matter and the standpoint of 'the parties in relation thereto. Without some knowledge derived from such evidence, it would be impossible to comprehend the meaning of an instrument, or the effect to be given to the words of which it is composed. This preliminary knowledge is as indispensable as that of the language in which the instrument is written. A reference to the actual condition of things at the time, as they appeared to the parties themselves, is often necessary to prevent the court, in construing their language, from falling into mistakes and even absurdities.” (2 Taylor, Ev., section 1198; Wood, Pr. Ev., sections 15, 26; Hall v. Davis, 36 N. H. 569; Bartels v. Brain, 13 Utah 162, 44 Pac. 715; In re Curtis [Conn.] 30 Atl. 769; Harrington v. Chambers, 3 Utah 94, 1 Pac. 362; Abba v. Smyth, 21 Utah 109, 59 Pac. 756; Macdonald v. Longbottom, 1 E. & E. 978; Thorington v. Smith, 8 Wall. 1, 19 L. Ed. 361.)

From tbe foregoing considerations, we are of tbe opinion that tbe testimony in question was properly admitted for tbe purposes indicated.

Tbe appellants further complain that tbe court erred in finding that tbe plaintiff purchased tbe tract of land together with tbe drain ditch and stream of spring and seepage water flowing therein, and that tbe ditch, with right of way and stream, was conveyed to him with tbe land by deed. They insist that such finding is contrary to tbe evidence, and that tbe finding and decree ought to have been in their favor. This presents tbe decisive question in this case, which is whether tbe right to tbe water and ditch passed by tbe deed as an appurtenance to tbe land. As has already been noticed, tbe deed does not in express terms convey tbe ditcb or water therein flowing, bnt it does convey tbe “privileges and appurtenances” belonging to tbe land. Were, then, tbe ditcb and water appurtenances attached to tbe land which passed with it by tbe conveyance ? To determine this, we must look into tbe evidence to see what the conditions of tbe premises, with respect to tbe ditcb and water, were at tbe time of sale. Tbe evidence shows that tbe entire' tract of land, of which that in dispute formed a part, was owned by tbe grantor and bad been owned by him for many years; that tbe ditcb bad been constructed by tbe owner upon tbe tract many years prior to tbe bargaining for tbe sale with tbe respondent; that at tbe time of sale tbe ditcb, with water flowing therein, was open and visible to tbe contracting parties as a condition of tbe land; that tbe ditch was a benefit to land retained by tbe grantor because it drained it of spring and seepage water and a benefit to tbe land sold, in that it furnished it with water for irrigation and domestic use; that tbe grantee informed tbe grantor that be wanted to purchase a piece of land with water rights that would entitle him to tbe use of water whenever be saw fit to do so; and that tbe grantor, while upon tbe land that was being bargained for, pointed to tbe drain ditcb and showed the grantee bow be himself used it upon tbe land, informing him that be considered that stream of water worth $25 per year for such use, and charged tbe grantee $50 per acre more than be bad charged another purchaser for adjoining land of tbe same quality, but which bad not tbe benefit of this stream. It is evident that tbe spring and seepage or percolating waters were natural qualities of that portion of tbe tract retained by tbe owner, and, so long as be bad dominion over tbe entire tract, be bad tbe undoubted right to make such disposition of those qualities as be chose. He bad tbe right to construct tbe drain ditcb and carry tbe water to any portion of bis land, apply it to any beneficial use be saw fit, and thereby change tbe relative value of tbe parts affected; for be bad a right to make one portion of bis land subservient to another, and, so long as be bad the unity of ownership, be bad tbe same right to change tbe ditcb to another tract, or obstruct the ditch and retain the water where it was wont to be, or do with it what the appellants have done — change the ditch and convey the water into a slongh where it would benefit none of his land.

But after having constructed the ditch and carried the water upon a particular portion and applied it there, and having thus added an advantage to the land and enhanced its value by artificial means, could he in his lifetime, after selling that portion with the benefits and advantages pointed out and openly visible to the purchaser, or can his grantee of another portion of the tract to which the'water had never been carried or applied, now that the grantor is. dead, destroy the ditch, or can his legal representatives now, after the grantor is gone, destroy the ditch, deprive that portion of the land of these benefits and advantages, materially dimmish the value of. the part sold, and so change the ditch and dispose of the water as not even to benefit the land which the grantor retained? The mere statement of such a proposition would seem sufficient to refute it. It is insisted, however, for the appellants that the owner could not create an easement in his own land, and that, so long as the grantor owned what are now claimed to be the servient estate and the dominant estate, his use of one for the benefit of the other was a mere exercise of a right of property over his own land, and in no sense an easement. Whether or not the artificial arrangement of the material properties of his estate by the owner, constituted a technical easement is, under the facts and circumstances of this case, immaterial. It clearly created a condition to the land sold partaking of the character of an easement constituting at least a quasi easement, visible to the purchaser, and one of the things in the minds of the parties when the bargain of sale was made. The contract of sale was made with reference to it as a part of the subject-matter, and was thus treated as, and in fact became, quasi appendant to the land sold, and the vendor could not thereafter derogate from his own grant. The presumption of law is that the parties contracted with a view to the condition of the property as it actually was at the time of the transaction, and after sale neither one had a right, without the consent of the other, to change that condition, which openly and visibly existed, to the detriment of the other. The deed conveyed the land with all the benefits and burdens appendant or quasi appendant thereto, and the ven-dee could neither shake off the burdens-nor could the vendor take away the benefits that were open and visible at the time of sale.

“The rule of the common law on this subject is wel] settled. The principle is that where the owner of two tenements sells one of them, or the owner of an entire estate sells a portion, the purchaser takes the tenement, or portion sold, with all the benefits and burdens which appear, at the time of the sale, to belong to it, as between it and the prop--erty which the vendor retains. This is one of the recognized modes by which an easement or servitude is created. No easement exists, so long as there is a unity of ownership, because the owner of the whole may at any time, rearrange the qualities of the several parts; but the moment a severance occurs, by the sale of a part, the right of the owner, to redistribute the properties of the respective portions ceases, and easements or servitudes are created, corresponding to the benefits and burdens mutually existing at the time of the sale. This is not a rule for the benefit of purchasers only, but it is entirely reciprocal. Hence, if, instead of a benefit conferred, a burden has been imposed upon the portion sold, the purchaser, provided the marks’ of the burden are open and visible, takes the property with the servitude upon it. The parties are presumed to contract in reference to the condition of the property at the time of the sale, and neither has a right, by altering arrangements then openly existing, to change materially the relative value of the respective parts.” (Lampman v. Milks, 21 N. Y. 505.)

But it is insisted, for the appellants, that the right to the ditch and water in this case did not pass as an easement nor as a quasi easement, because, it is urged, it was not continuous, but was discontinuous in its character and not strictly a necessity to the enjoyment of the estate granted. This contention, it must be conceded, presents a question upon which the authorities do not all appear to be harmonious. The distinction between easements continuous and discontinuous is found in the Civil Code of France, where easements, or servi-tudes, are divided into continuous and discontinuous, and are defined:

“Continuous are those of which the enjoyment is or may be continued, without the necessity of any actual interference by man, as a waterspout or a right of light or air. Discontinuous are those the enjoyment of which can be had only by the interference of man, as rights of way, or a right to draw water.” Washburn on Basements and Servitudes [4 Ed.] 21.

The same Code, it seems, also divides servitudes into “apparent” and “nonapparent,” and the analogy between tbe French Code and the common law in this regard would seem to indicate, as suggested by Gale & Whatley, in their work on the Law of Easements (page 40), a common origin. In many common-law cases the substance of these classifications can be distinctly traced, and the distinction is frequently recognized in American cases. Mr. Washburn, in his work above referred to (page 107), which has been cited by the appellants, says the general rule is that such easements as are noncontinuous will not pass by an implied grant; and of these, he says, the most important are rights of way. The same author says that continuous and apparent easements, such as rights of drainage, of aqueducts, of air and light, or conduits, will pass by implied grant, when, as generally held, they are “necessary to the reasonable use and enjoyment of the granted premises.” Then, after explaining these rules, the author says:

“A noted exception to the general rules above stated is found in the decisions of the courts in Maine and Massachusetts. It is held by them that no easement, whether continuous or noncontinuous, apparent or nonapparent, will pass by implied grant or reservation, unless it is one of strict necessity. If the grantee can procure the enjoyment of a similar easement, no matter how great the cost, or if the easement is not absolutely necessary to the enjoyment of the granted property, it will not pass.”

The exception thus pointed out by the eminent author serves to explain the cases cited, by appellants, as to the rule, insisted upon by them, of strict necessity, whether the easement be continuous or noncontinuous, apparent or nonapparent. In the same work, however, after a further discussion of this question and different lines of authorities the author (on page 110) says:

“To return to the general subject, the courts in the United States have generally adopted the English rule, that simultaneous sales or descents of two adjoining lots belonging to the same owner impress upon each lot the apparent and continuous servitudes which are in use over it at the time of the sale. Those states in which such easements, to pass by implied grant, must of strict necessity apply the same limitations herej while in those states in which the easements need only be reasonably necessary to the use of the granted premises such reasonable necessity is sufficient.”

Tested by tbe rule of reasonable necessity which commends itself as alike just and equitable, and in consonance with fair dealing, the right to the ditch and water, in this case, clearly passed by the conveyance of the premises, as an appendant or quasi appendant thereto. We fully recognize the fact that the owner of a tract of land may use one part thereof for the benefit of another, or each part for the benefit of the other in any manner he may choose, or in such a way that, if he sold one of them, he would not desire to continue the use, and that so long as he owns the unity he may change the use at his will, or discontinue it altogether, and thereby restore to each part its natural properties or qualities; but, if the use be so obvious and of such character as to induce in the public a reasonable belief that it has been permanently established as an incident to each part, then justice and common fairness require that, if he contemplates a change in the use or state of the premises, he must make it anterior to a sale of one of the portions, or reserve the right in his deed or grant, else be bound by the servitude as to the land he retains. Where a conveyance is made by deed, the

“property conveyed passes, with all the incidents then rightfully belonging to it, or actually and usually enjoyed with it at the time of the conveyance, so far as they are necessary to the full benefit and perfect enjoyment of the property, without any specification of them and without the usual phrase, ‘with all the privileges and appurtenances to the same belonging.’” (Dunklee v. Wilton R. Co., 24 N. H. 489.)

Mr. Famham in his work on Water and Water Nights (volume 3, section 831), says:

“If the owner of land has artificially created upon the property a condition which is favorable to one portion of his property, and then sells that portion, the grantee will take it with the right to have the favorable condition continued. Therefore, where the owner of land across which a stream flows has diverted it through an artificial channel, so as to relieve a portion of it formerly overflowed, which he then conveys, neither he nor his grantees of the residue can return the stream to its ancient bed,-to the injury of the first grantee.”

Gale & Whatley, in their work on the Law of Easements (page 40) say:

“It is true that, strictly speaking, a man cannot subject one part of his property to another by an easement, for no man can have an easement in his own property, but he obtains the same object by the exercise of another right, the general right of property, but he has not the less thereby permanently altered the quality of the two parts of his heritage; and if, after the annexation of peculiar qualities, he alien one part of his heritage, it seems but reasonable, if the alterations thus made are palpable and manifest, that a purchaser should take the land burthened or benefited, as the ease may be, by the qualities which the previous owner had undoubtedly the right to attach to it.”

In Gould on Waters (3 Ed.), section 354, it is said:

“The general rules relating to severance of tenements are that a grant by the owner of a tenement or part of that tenement, as it is then used and enjoyed, passes to the grantee by implication, and without the use of the word ‘appurtenances,’ or similar words, all those easements which the grantor can convey, which are necessary to the reasonable enjoyment of the granted property, and have been and are at the time of the grant, used by the owners of the entirety for the benefit of the granted tenement.”

In Curtis v. Ayrault, 43 N. Y. 73, where, as here, the controversy was over a drain ditch which was deepened from time to time, and which had been constructed to carry water, accumulating on one parcel of land, over another, while there was a unity of ownership, and where, in disposing of the case, the essential question of fact was stated to be whether the purchaser of the parcel, across which the water flowed by means of the ditch, in arriving at the price he would pay, did consider and had a right to consider, as an element of value, the ditch across the tract giving, a supply of water through it, tbe court, after stating that neither tbe grantor nor tbe grantee bad tbe right after sale to change tbe relative condition of one parcel to tbe injury of another, observed:

"Some stress is laid upon the purpose which Newbold had in making the ditch, and it is claimed that it was naught else than to drain his lands. But the application of the rule does not depend solely upon the purpose for which the changes have been made in the tenement by the owner. It is the open and visible effect upon the parts which the execution of the purpose has wrought which presented to the view of the purchaser is presumed to influence his mind, and to move him to Ms bargaining.”

Tbe leading case, one of approved authority, wbicb bas uniformly been regarded as settling tbe law on tbis subject, is Nicholas v. Chamberlain, Cro. Jac. 121, where, using tbe language of Coke:

“It is held by all the court upon demurrer that if one erect a house and build a conduit thereto in another part of his land, and convey water by pipes to the house, with the appurtenances, excepting the land, or sell the land to another, reserving to himself the house, the conduit and pipes pass with the house, because it is necessary, et quasi, appendant thereto, and he shall have liberty by law to dig in the land for amending the pipes, or making them new, as the case may require.”

In Baker v. Rice, 56 Ohio St. 463, 47 N. E. 653, with reference to continuous and discontinuous easements it was said:

“But it is claimed that only such easements as are termed 'continuous’ will pass by implication in a grant, and that such as are termed ‘discontinuous’ will not. This is a distinction of the civil law, and has been incorporated in the law of some of the states, particularly Maine and Massachusetts. The former are such as operate without the intervention of man, such as drains and sewers; the latter require the intervention of man in their use, such as ways. The distinction is somewhat arbitrary and is not uniformly adopted, as will appear from the cases cited. The better rule, and the one now generally adopted, is not to consider the particular kind of easement, but whether it is apparent, designed to be permanent, and is reasonably necessary to the use of the premises granted.”

So, in James v. Jenkins, 34 Md. 1, 6 Am. Rep. 300, after a statement of tbe principle tbat, wben one owns an entire heritage and grants a part thereof, there will pass to the grantee all such continuous and apparent easements as may be, at the time of the grant, in use for the beneficial enjoyment of the parcel granted, by implication, unless words are used in the grant manifesting an intent to exclude them, it was said:

“Whenever, therefore, an .owner has created and annexed peculiar qualities and incidents to different parts of his estate (and it matters not whether it be done by himself, or his tenant by his authority), so at one portion of his land becomes visibly dependent upon another for the supply or escape of water, or the supply of light and air, or for means of access, or for the beneficial use and occupation, and he grants the part to which such incidents are annexed, those incidents thus plainly attached to the part granted, and to which another part is made servient, will pass to the grantee, as accessorial to the beneficial use and enjoyment of the land.”

In Ingals v. Plamondon, 75 Ill. 118, a case cited by tbe appellants, it was said:

“The rule of the common law upon the subject is that where the owner of two heritages, or of one heritage, consisting of several parts, has arranged and adapted these so that one derives a benefit or advantage from the other of a continuous and obvious character, and he sells one of them without making mention of these incidental advantages or burdens of one in respect to the other, there is, in the silence of the parties, an implied understanding and agreement that those advantages and burdens, respectively, shall continue as before the separation of the title.” (3 Far., Water & Water Rights, sections 831-833; Gale & Whatley on Easements, pp. 38-41; Gould on Waters (3 Ed.), sections 318, 319, 354; Washburn’s Easements & Servitudes [4 Ed.], 105-111; Eliason v. Grove, 85 Md. 215, 36 Atl. 844; Paine v. Chandler, 134 N. Y. 385, 32 N. E. 18, 19 L. R. A. 99; Cave v. Crafts, 53 Cal. 135; Lampman v. Milks, 21 N. Y. 505; Kieffer v. Imhoff, 26 Pa. 438; Robbins v. Barnes, Hob. 131; Liford's Case, 11 Co. 52; Farmer v. Ukiah Water Co., 56 Cal. 11; Cihak v. Klekr, 117 Ill. 643, 7 N. E. 111; Newell v. Sass [Ill.], 31 N. E. 177; Jackson v. Trullinger, 9 Or. 393; Coolidge v. Hager, 43 Vt. 9, 5 Am. Rep. 256; Cannon v. Boyd, 73 Pa. 179; United States v. Appleton, 1 Sumn. 492, Fed. Cas. No: 14463.)

"While tbe evidence does not in direct terms sbow tbat tbe water was actually used upon tbe land for irrigation prior to tbe sale it does sbow expressly tbat tbe ditcb bad been constructed over tbe land and tbat water flowed therein for many years prior to tbat time, and it is also shown tbat immediately after tbe sale tbe vendor himself did in fact use tbe water to irrigate bis reserved crops, and that tbe vendee, with tbe knowledge of and without objection from tbe vendor, continued its use for irrigation and domestic purposes, until tbe latter’s death, and during all tbe years following until tbe interruption by tbe appellants, which resulted in this controversy. It further appears from tbe evidence that tbe water right from another ditch which admittedly did pass, as an appurtenant to tbe land, is not sufficient to- irrigate all tbe land for the purposes for which it was sold, and that tbe ditch and water in question constituted rights, incidents, or conditions which, at tbe time of sale, were not only apparent and continuous, but obviously necessary to the reasonable enjoyment of the thing sold; and the court’s finding that they were necessary to such enjoyment has ample support in tbe evidence. These things do not only appear from tbe testimony, but it isa matter of common knowledge, of which no proof is necessary, that, in this arid region, land is practically worthless in the ■absence of sufficient water for irrigation. Under such facts and circumstances, as are here presented, and in the light of the principles and authorities hereinbefore considered, we have no hesitancy in holding that the ditch, and water flowing therein, passed as appurtenances with the grant. And when the permanency of the ditch and the fact that the servitude was perfectly obvious and apparent, at the time of the conveyance, was of material benefit and necessary to the reasonable enjoyment of the premises, when all these things are considered in connection with the conversations, acts, and conduct of the parties, while on the land sold at the time of bar-g'aining, and thereafter during the lifetime of the vendor, it would seem that, under practically all the authorities, the -ditch and water passed by the deed.

We do not deem it important to discuss any other point presented.

The judgment is affirmed, with costs.

McOAKTY, J., concurs.