## Facts

- Mr. and Mrs. Davies owned a ranch with springs and seeps that formed a small creek running to the Rogue River.
- While owning the entire ranch, the Davieses built a gravity-flow water setup: a pipe at the creek carried water to a storage tank (reservoir), and an outlet pipe distributed water for use on the ranch.
- In 1946, the Davieses sold about three acres of the ranch to the Mairses (the future dominant tract). As part of the sale, the parties orally agreed that the Davieses’ retained land (the future servient tract) would continue to supply the Mairses with water from the existing system.
- The Davieses later executed and delivered a recorded instrument titled “Easement Deed” to the Mairses. It recited that the “grantors have agreed to furnish to the grantees water for use” and that the grantors “covenant that they, their heirs or assigns will maintain a reservoir” to supply the grantees’ land.
- In 1947, the Davieses conveyed the remaining ranch land (including the springs and reservoir) to the Watsons (defendants).
- The Mairses developed their land as a fishing resort. In 1948, the Mairses sold part of the dominant tract, including resort buildings, to Fitzstephens (plaintiff), who continued relying on the same water line.
- The Watsons also developed their tract as a fishing resort. Beginning around 1949, they periodically shut off the flow to Fitzstephens by closing a valve, claiming he wasted water and that shutoffs were needed to keep enough water for their own resort.
- In 1954, the Watsons notified Fitzstephens they would no longer permit him to use any water from the system on their land.
- The Watsons later relied on a state-issued Certificate of Water Right as support for their claimed authority to control the water and to terminate Fitzstephens’s use.
- Fitzstephens sued, seeking an injunction to restore the water supply and damages for costs and losses allegedly caused by the shutdowns. The trial court found a valid, perpetual easement and entered a permanent injunction, but denied damages. The Watsons appealed, and Fitzstephens cross-appealed on damages.

## Issues

1. Did the instrument titled “Easement Deed” create a valid, perpetual easement appurtenant that entitled the dominant tract to receive water through the system on the servient tract and bound successors?
2. Could the Watsons, as successors to the servient tract, avoid the recorded water arrangement by asserting the dominant tract was nonriparian or by invoking their later state Certificate of Water Right?
3. Did the trial court err by denying Fitzstephens money damages while granting injunctive relief?

## Decision

- The Oregon Supreme Court affirmed the decree that the “Easement Deed,” construed by its substance, created a valid and perpetual easement appurtenant for water supply benefiting the dominant tract.
- The court held the Watsons took the servient tract subject to the easement and could not cut off or interfere with the flow contrary to the deed.
- The court rejected the argument that the Watsons’ later Certificate of Water Right defeated the previously granted private easement.
- The permanent injunction against interference with the water flow to Fitzstephens’s land was affirmed.
- The denial of Fitzstephens’s damages claim was affirmed.

## Legal Principles

- Courts interpret a written instrument by the property interest it actually grants; language framed as a “covenant” to furnish water and maintain a reservoir may create an easement when it grants a continuing right benefiting a particular parcel.
- An easement is appurtenant when it benefits the holder in the use and enjoyment of identified land; such an easement runs with the dominant land and burdens the servient land in the hands of later owners.
- A riparian owner may convey a continuing right to use water by granting an easement tied to another tract, even if the benefited tract is not itself riparian to the watercourse.
- A purchaser of the servient estate with record notice of the easement (and notice from the visible, existing waterworks) is bound by the easement’s terms, including limits on interference with the water delivery system.
- A later-obtained state water right certificate does not extinguish or nullify a preexisting private easement affecting the same water use; the certificate is held subject to existing property interests.
- Injunctive relief is appropriate to stop repeated interference with an easement supplying water needed for the use of the dominant land; money damages require proof of compensable loss with reasonable certainty.

## Conclusion

The Oregon Supreme Court held that the recorded “Easement Deed” granted a perpetual appurtenant right for the dominant tract to receive water through the reservoir-and-pipeline system on the servient tract, binding the Watsons as successors, and that their later water right certificate did not defeat that private property right; the injunction was properly entered and the denial of damages was properly left in place.


Fitzstephens v. Watson, 344 P.2d 221 (1959)