Greene v. Fickert
Greene v. Fickert
Opinion of the Court
Plaintiff and respondent instituted this action against defendants and appellants Louise Fickert and Nellie Fickert, individually and as administratrices with the will annexed of the estate of Frederick A. Fickert, deceased, to quiet title to an easement to use a certain spring located on appellants’ land. The trial court decreed that appellants’ predecessor in title, by conveyance of a portion of his estate to respondent, transferred an easement to use a spring on grantor’s reserved portion in favor of the granted estate. The complaint is in the ordinary form of a complaint in a quiet title action.
From 1910 to 1935, one George H. Palmer and wife owned all of section 18, township 82, S. R. 32 E., M. D. B. & M. in Kern County.
On June 26, 1935, the Palmers deeded to Frederick A. Fickert the N. W. 14 and the E. % of section 18. This deed was based upon some oral agreement of sale between them, made a few months prior to that date. October 30, 1935, Fickert conveyed to respondent Angus F. Greene 185 acres of the south portion of the east half of section 18, which would be approximately the southeast quarter of section 18, which we will designate parcel A, “subject to reservations and rights of way of record . . . together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in any wise appertaining, ...” Parcel A is now and has been since 1890, improved by a house, barn, corrals and outbuildings. These improvements are located on the north part of parcel A and immediately adjacent to the north % of the east % of section 18, which we will designate as parcel B.
From 1890 until January, 1936, the house and barn on the premises so conveyed by Fickert to Greene (parcel A) received its water supply for household and domestic uses and for watering stock and poultry from one of several springs known as the “house spring,” all of which were located north of the house and barn on parcel B. The water was transferred from the “house spring” to the house and barn by
From March 1, 1935, until about January 1, 1936, respondent had the free and uninterrupted use of the “house spring.” Subsequent to July 1, 1936, Fickert forcibly tore up the pipe line running from that spring to the house and prevented respondent from enjoying the benefits thereof.
Appellants’ answer sets up two defenses: (1) that the right given by Fickert to the Greenes was a mere license to use the water; (2) that in any event Fickert, after arrangements had been made to acquire the Palmer tract, had rearranged the burdens and services as to the various portions of his common estate so as to allow for the joint user of the water of the “house spring” during the summer ranging season.
The trial court specifically found (1) that at the time of the Fickert-Greene sale, Fickert was the owner of the entire estate, (i. e., of both the servient and dominant tenements) ; that at the time of conveyance, “the benefit of the exclusive use of said house spring . . . together with the right to pipe the water therefrom and the right to enter upon the land upon which the spring is located, was obvious and apparent, and that said benefit appeared ... to belong to the property conveyed to said Greenes as between it and the property which the vendor Fickert retained”; (2) that Greene had the exclusive free and uninterrupted use of the “house spring” from March 1, 1935, to January 1, 1936; (3) that during said period, the “house spring” “was obviously permanently used ...” for the benefit of the Greene parcel. It found generally in accordance with the facts above stated and de49
It is now argued by appellants (1) that there is no evidentiary support for special findings 1 to 3 inclusive; (2) that the court’s conclusion that respondent was entitled to all the water from the “house spring” was erroneous and not supported by the evidence.
In an endeavor to prove that respondent was not entitled to the exclusive, free and uninterrupted use of the “house spring,” appellants introduced testimony that in September, 1934, grantor'Fickert installed a watering trough near the “house spring,” connected it up with the spring, used it for watering cattle, and did not permit the house on the Greene portion to use this water or any portion of it except during the nighttime when it was not needed for cattle, and that this situation and arrangement continued during the cattle ranging seasons of 1934 and 1935. The evidence on this question is conflicting. We will refer to sufficient evidence to support the finding complained of.
There is no question but that the “house spring” supplied the house and buildings on parcel A up to a time when Fickert removed a watering trough which had been used at another spring called the “tunnel spring” over to the “house spring.” At some period in 1934, 1935 or 1936, Fickert made this change. The change allowed Fickert’s cattle grazing on parcel B to water from the trough at the “house spring” during the summer months. By a hose connection, the supply could be changed from running to the trough and made to run through the pipes leading to parcel A. Under this change, it was necessary for the owner of parcel A to regulate the flow by walking 1500 feet from the house to the “house spring” each time it was changed. This procedure continued until the pipes were torn up as above indicated.
The question as to the time when this trough was installed at the “house spring” becomes important to show what easement or condition existed at the time of the transfer of parcel A to respondent and whether he would be entitled to the full flow of that particular spring. The evidence in this respect is not only conflicting but confusing. One witness,
The question of the conflict in the evidence was for the trial court to determine. There was certain evidence admitted, over objection, showing that the particular “house spring” was used exclusively by respondent’s predecessors in interest back as far as 30 years. Even if the reception of this
It therefore follows, under the findings, section 1104 of the Civil Code which provides that “A transfer of real property . . . creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent as such property was obviously and permanently used by the person whose estate is .transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed,” section 1084 of the Civil Code, and the decisions thereunder, that appellants’ contentions are without merit. (Cave v. Crafts, 53 Cal. 135; Kallenburg v. Long, 39 Cal. App. 731 [179 Pac. 730]; Swarzwald v. Cooley, 39 Cal. App. (2d) 306 [103 Pac. (2d) 580]; Jersey Farm Co. v. Atlanta Realty Co., 164 Cal. 412 [129 Pac. 593]; Vargas v. Maderos, 191 Cal. 1 [214 Pac. 849].)
Appellants question the sufficiency of the allegations of the complaint. The complaint states a cause of action. No demurrer to the complaint was interposed in the trial court. This question cannot be raised for the first time on appeal. (Egilbert v. Hall, 44 Cal. App. (2d) 305, 311 [112 Pac. (2d) 291].) The evidence supports the findings and the findings support the judgment.
Judgment affirmed.
Barnard, P. J., and Marks, J., concurred.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.