President, Managers & Co. of the Delaware & Hudson Canal Co. v. Hughes

<p>APPEAL from District Court, Ada County.</p> <p>An action to establish a right to the possession of a right of way over which to divert water cannot be maintained exclusive of the fight to divert water, especially as against one who has such right to divert. {Smith v. Hawkins, 110 Cal. 122, 42 Pac. 453.) There is only one way, so far as this controversy is concerned, to acquire the right to the possession of a right of way. over the public domain and that is as follows: “Whenever, by priority of possession, rights to the use of water for . . . agricultural .... purposes, have vested and accrued; .... the right of way for the construction of ... . canals .... is acknowledged and confirmed.” (17. S. Rev. Stats., sec. 2339.)</p> <p>Possessory rights to ditches and possessory rights to water may each have an existence independent of the other. That a person may convey a water right, reserving the ditch, or convey a ditch independent of the right to the use of the water accustomed to flow therein, is, we think, clearly within reason. A ditch is itself land. (Kinney on Irrigation, see. 224, and cases cited in note; Reed v. Spicer, 27 Cal. 58.) Interest in water ditch is real estate, and can only be transferred by deed, prescription or condemnation. (Burnham v. Freeman, 11 Colo. 601, 19 Pac. 761; Smith v. O’Hara, 41 Cal. 371.) For a case recognizing ownership of ditch in one person and ownership of watqp running therein in another, see ' Clifford v. Larrien (Ariz.), 11 Pac. 397. A ditch constructed on unoccupied public lands of the United States is held by grant, and the owner of such ditch does not forfeit his right thereto merely by nonuser. (Welch v. Garrett, ante, p. 639, 51 Pac. 405.)</p>

<p>Appeal, No. 316, Jan. T., 1909, by plaintiffs, from judgment of Superior Court, April T., 1909, No. 31, reversing decree of C. P. Warren Co., March T., 1908, No. 41, granting injunction in case of F. H. Rockwell & Company v. Warren County and C. S. Keefer, Treasurer.</p> <p>Appeal from Superior Court. See 39 Pa. Superior Ct. 468.</p> <p>Error assigned was judgment of the Superior Court.</p>

<p>Appeal, No. 56, Jan. T., 1914, by plaintiff, from decree of C. P. Lackawanna Co., Oct. T., 1913, No. 5, in equity, dismissing bill in equity for an injunction in case of The Graff Furnace Company v. Scranton Coal Company.</p> <p>Bill in equity for an injunction. Before Edwards, P. J,</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court on final hearing dismissed the bill. Plaintiff appealed.</p> <p>Errors assigned were in dismissing various exceptions to the findings of fact and law of the trial judge and the decree of the court.</p> <p>If the destruction of surface support is not necessarily incident to the business of mining, then a conveyance by the owner of real estate of the coal therein and of its rights to mine and remove the same by any subterranean process incident to the business of mining, does not grant the right to destroy the surface: Coleman v. Chadwick, 80 Pa. 81; Weaver v. Berwind-White Coal Co., 216 Pa, 195; Dignan v. Altoona Coal & Coke Co., 222 Pa. 390; Berkey v. Berwind-White Coal Mining Co., 229 Pa. 417; Noonan v. Pardee, 200 Pa. 474; Stilley v. Pittsburgh-Buffalo Co., 234 Pa. 492.</p> <p>While the principle that the under or mineral estate owes a servitude of sufficient support to the upper or superincumbent estate has no application where the same person is the owner of both estates, still upon the severance of the two estates, in the absence of a waiver of surface support in the grant, the law imposes upon the underlying mineral estate the servitude of surface support.</p> <p>An exception or reservation of the right of surface support in a grant of land, if the grantor has the right, is void and of no effect: Horner v. Watson, 79 Pa. 242; Touchstone, page 78; Dorel v. Collins, Cor., Eliz. 6; Little v. Greek, 233 Pa. 534; Shoenberger v. Lyon, 7 W. & S. 184; Stokely’s Est., 19 Pa. 476; Siebert v. Levan, 8 Pa. 382; Kieffer v. Imhoff, 26 Pa. 438; Grace Methodist Episcopal Church v. Dobbin, 153 Pa. 294; Huff v. McCauley,