Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-18

conveyance from Lowry and wife to
the defendant. Whether a reserva-
tion or covenant in a deed shall be
construed to create an easement in
gross or one appurtenant to the land
is matter to be deduced (1) from
the terms of the instrument itself or
(2) if that is ambiguous, then from
a consideration of all the circum-
stances surrounding its execution,
always bearing in mind the rule that
the courts should construe an in
strument to convey an easement ap-
purtenant, rather than one in gross
10 a. & E. E. 4O5; Ruhnke V. Aubert
(Or) 113 Pac. 80, and cases there
cited. In the case at bar the cove
nants of the defendant are a part of
the consideration for the land. In
deed, it is fair to assume that they
constitute the only consideration be-
yond the nominal sum of one dollar
recited in the deed In this state the
word "heirs" is not necessary to
create an estate in fee, and, as this
covenant operates as a re-grant of a
portion Of the estate already con-
veyed, its effect, as we held in
Ruhnke v, Aubert, was to convey to
Lowry and wife an assignable inter-
est or right, unless it appears by
necessary implication that a less es-
tate was intended: L. o. L. Sec
71O9.
We find nothing in this convey
ance that either by express terms
or by necessary implication indicates
that the grantors were to take mere
ly a temporary personal right to the
water which was to be conveyed
across their premises. The burden
upon their land was perpetual and,
as we have held lately in Portland v.
Metzger, - Pac. -, includes the
right on the part of defendant to
erect telephone poles and string
wires from the city to the head
works; to prohibit the grantor from
erecting buildings upon the strip
granted; to allow the servants of the
city, in the necessary repair of its
pipe line, to pass along the strip on
foot or in wagon; and to dig the
soil or lay additional pipes. Such a
servitude must necessarily affect, to
some degree, the free use and value
Of the property and will do so to a
crater extent as the city increases in
population and the necessity for more
frequent and extensive use of the
right Of way consequently increases.
These considerations would indicate
the probability of an assignable es-
tate being created rather than to
imply that something
less than that was intended. If the
easement were assignable, the depre-
citation in the value of the estate,
causd by the servitude imposed upon
It, would be to some extent, and per-
haps entirely, recouped by the in
creased value added to 1t by the
privilege of obtaining water conven-
Iently.
The suggestion that, in case the
court should hold that the convey
ance in question creates interest ap-
purtenant to the land, each subse-
quent purchaser of parcel of it
will be entitled to the whole guam
tity of water reserved to the grant
Ors, is unsound. The right is limited
to a particular quantity and, unless
subsequent conveyances otherwise
provide, the purchaser of any frac-
ton of the original quantity will be
entitled to such proportional guam
tity of the water reserved as his
fraction of the land bears to the
whole tract: Ruhnke v. Aubert,
supra.
Also the suggestion that the cove
nant was one beyond the authority
Of the city to make and is void, there
fore, cannot be considered so long as
The city retains the fruits of the con-
.ract. The covenant that the grant