49 Wn.2d 481, HARRY C. WHITE et al., Respondents, v. ANTHONY B. PAQUE et al., Appellants, DALISON D. WHITE et al., Defendants
[No. 33474. En Banc. Supreme Court November 15, 1956.]
HARRY C. WHITE et al., Respondents, v. ANTHONY B. PAQUE
et al., Appellants, DALISON D. WHITE et al., Defendants.«1»

[1] WATERS AND WATERCOURSES - CONVEYANCES AND CONTRACTS - EASEMENTS - CONSTRUCTION. In an action for injunctive relief by a former tenant in common of a tract of land to restrain the successor of another former tenant in common from interfering with a water line which the plaintiff had connected with a spring located on that portion of the tract occupied by the defendant, held that under the terms of a water agreement executed prior to the partition of the tract each of the parcels of land into which the tract was partitioned has an easement in the spring and a right to use water therefrom, and this right includes, by necessary implication, the right to run water pipes to the spring; the agreement also granting the right to take water from the existing system and prescribing the cost and manner of doing so.

[2] SAME. In such an action, the different rights of means to obtain water, as provided by the terms of the water agreement, are independent of each other; and the rights of the plaintiff, who is not served by the existing water system, are not governed by the terms of the agreement pertinent to it.

[3] SAME. In such an action, held that the defendants were not aggrieved by the installation of the water system by the plaintiff and had no right to remove it.

Appeal from a judgment of the superior court for Kitsap county, No. 33883, Sutton, J., entered May 9, 1955, upon findings in favor of the plaintiffs, in an action for injunctive relief, tried to the court. Affirmed.

Greenwood & Shiers and Robert G. Presser, for appellants.

Harry H. Schlee, Roy A. Holland, and Merkel & Cook, for respondents.

MALLERY, J. -

This is an appeal from a permanent injunction restraining appellants, defendants below, from obstructing, interfering with, or contaminating the water systems of respondents as they now exist.

«1» Reported in 303 P. (2d) 524.

[1] See 89 A. L. R. 1187; 56 Am. Jur. 623, 710.

482 WHITE v. PAQUE. [49 Wn. (2d)

In 1903, the parents of respondents Harry C. White and Ethel M. Morris, plaintiffs below, and defendant Dalison D. White, acquired twenty acres of land near Port Orchard, which, thereafter, became the children's property as tenants in common. Prior to a partition of the property, six dwelling houses had been constructed and a one and onehalf inch water pipe line installed, which supplied them with water from an ample spring on the south portion of the land.

On December 23, 1952, the tenants in common executed a "water agreement" intended to serve as a covenant running with the land, which would protect the right of the present and future owners of the different parts of the land to use water from the spring. It was recorded on January 23, 1953.

The appellants purchased the south third of the tract on a real-estate contract from defendant Dalison D. White. Thereafter, respondent Chester White put in a new threeinch water line to serve the north third of the property. It was first cross-connected to the old one and one-half inch main, from which appellants got their water. Unfortunately, this resulted in reducing the pressure in the old gravity system and deprived appellants of water. The connection was taken out upon the discovery of this unexpected effect upon appellants' water supply. Since then, the new system has been separately maintained.

The appellants have been restrained from further direct action, such as was provoked by their temporary lack of water.

The appellants contend that respondents violated the terms of the water agreement by putting in a separate new system using three-inch pipes. They contend the respondents' water rights are limited to the use of the old system and such repairs and replacements as may be made to it. Under the terms of the contract, they contend that pipes larger than one and one-half inches in diameter cannot be used. They seek to have the new three-inch line removed, or, in the alternative, to have the water agreement rescinded by reason of the alleged violation thereof.

The pertinent parts of the water agreement provide:

Nov. 1956] WHITE v. PAQUE. 483

"AND WHEREAS the parties to this agreement anticipate that they will partition the said property into three parcels. each parcel to be separately owned by the parties hereto . . .

"AND WHEREAS the parties hereto desire that the owners of each parcel . . . , when the same shall be partitioned, shall have equal rights in the spring . . .