Jobling v. Tuttle

Citations

• 75 Kan. 351
• 89 P. 699
• 1907 Kan. LEXIS 64

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Easements — Executed Parol Agreement-^-Purchase of Serv-ient Estate without Notice. An easement consisting of the right to the free use of the water of mineral springs situated upon lands of another, which it is claimed arose by virtue of an executed parol contract with the former owner of the lands, cannot be asserted against a subsequent grantee where nothing appears of record indicating the existence of any servitude attached to the lands, and the grantee purchased without notice.</p> <p>2. - Constructive Notice. In order to furnish constructive notice of the existence of a servitude in lands there should be such a connection between the use and the thing used as to suggest to a purchaser that one estate is servient to the other. The servitude must be open, apparent 'and visible, so as to raise the presumption of notice, or the purchaser will not be bound, in the absence of actual notice.</p> <p>3. —- Knowledge, of a Common Use — Notice of a Special .Right Not Presumed. In a suit to enjoin interference with an easement which it was claimed arose by virtue of an executed parol contract, entered into between the proprietors of mineral springs and the owner of a hotel situated .on adjacent lands, providing that in consideration of the erection of the hotel the guests and servants should have, forever, the free use of the waters of the springs for drinking purposes, knowledge by defendant, who was a subsequent purchaser of the springs, to the effect that the guests and servants of the hotel had for years enjoyed the privilege in common with the public will not raise a presumption that defendant had notice of any special right of plaintiff’s in the use of the waters.</p> <p>4. -Prescription — Adverse Use Essential — License. In order to acquire by prescription an easement in lands of another, consisting of the right to the free use of the waters of mineral springs situated thereon, the user must have been continuous, uninterrupted,