Dixon v. Schermeier

Citations

• 110 Cal. 582
• 42 P. 1091
• 1895 Cal. LEXIS 1101

Syllabus

<p>Easement—Water Ditch—Servitude.—A water ditch constituting an independent property disassociated from the land over which it passes, though it may be an easement in gross, is a servitude upon the land.</p> <p>Id.—Unity of Title—Extinguishment of Servitude.—When the owner of the land over which the ditch passes becomes the owner of the ditch, the servitude is extinguished by unity of title during the time that such unity of title may continue.</p> <p>Id. —Ditch Appurtenant to Distinct Mining Claims.—Where a ditch, as an artificial watercourse, is apparently necessary to the working of two distinct mining claims owned by the owner of the ditch, it becomes an appurtenance to each of the mining claims.</p> <p>Id.—Mortgage upon One Claim—Severance of Tenements—Easement of Wav.—The execution of a mortgage upon one of the two mining claims to which the water ditch is an appurtenance, creates, potentially, a severance of the tenements to which the ditch is appurtenant, and where the ditch crosses the mortgaged claim to the other mining claim to which the ditch is also appurtenant, and which is not included in the mortgage, an easement of way for the ditch over the mortgaged claim is reserved in the mortgage by implication of law in favor of the other mining claim.</p> <p>Id.—Subsequent Mortgage upon Easement — Foreclosure of First „ Mortgage—Disclaimer—Extinguishment of Lien.—A subsequent mortgage of the other mining claim covers the easement reserved by implication of law in the former mortgage; and in a suit to foreclose the former mortgage the subsequent mortgagee may assert a lien on the easement of way for the ditch over the first mortgaged claim; but by disclaiming any interest in the land which is the subject of that suit, the j 'dgment of foreclosure of the prior mortgage founded on such disclaimer, aid the sale and deed thereunder, extinguishes the lien of the subsequent mortgagee on every part of the first mortgaged claim, including the easement of way and the