I concur with the prevailing opinion of Mr. Justice WOLFE as to the question of the prescriptive easement on the following grounds only; I concur with his opinion on the other questions therein decided for the reasons therein stated. *Page 244
In determining the nature of this prescriptive easement, its extent and limitations, the burdens and benefits which it confers upon each estate, we must look to the nature of the use which existed during the prescriptive period. Since the right has its inception in the use during that time, its extent and limitations, its burdens and benefits are determined by the nature of that use and the understandings of the parties thereto. Thus any use which would have probably been interrupted by the owner of the servient estate had the owner of the dominant estate attempted such use prior to the expiration of the prescriptive period, is a use which places a greater burden on the servient estate and therefore is beyond the prescriptive right acquired by the dominant estate. However, any use which the owner of the servient estate could during the prescriptive period reasonably anticipate would in the future be made of his property under such prescriptive use is not a greater burden on the servient estate. See Restatement of the Law of Property, Division V, Servitudes, §§ 477 to 480.
I concur with the result that Mr. Justice WOLFE reaches because I believe that the owner of the servient estate could, during the prescriptive period, reasonably anticipate that this ditch would in the future be improved and cemented as it is now proposed to do, and that regardless of this fact did not interfere with the use being made thereof. I believe that from the earliest time when irrigation ditches and canals were constructed it was understood that they were at first makeshift in their construction and would be improved later. By nature the longer a ditch or canal stands without breaking, the more impervious it becomes to seeping waters. It has been a universal custom in this state for irrigation and canal companies to make necessary improvements in their systems to prevent loss of water by seepage, particularly in places where the ground is especially porous. The history of irrigation in this state has been one of continuous improvement of systems, for that purpose, and that such improvements have been made, almost without objection on the part of the servient estates. It is only because *Page 245 I believe that such was the general understanding of all the parties concerned and that the proposed improvements could have reasonably been anticipated by the owners of the servient estates that I concur with the present result rather than adhere to the original opinion.