Ada County Farmers' Irr. Co. v. Farmers' Canal Co.

• Decision Date: 24 January 1898
• Citation: 5 Idaho 793,51 P. 990
• Parties: ADA COUNTY FARMERS' IRRIGATION COMPANY v. FARMERS' CANAL COMPANY
• Court: Idaho Supreme Court

51 P. 990

5 Idaho 793

ADA COUNTY FARMERS' IRRIGATION COMPANY v. FARMERS' CANAL COMPANY

Supreme Court of Idaho

January 24, 1898

IRRIGATING CANALS-RIGHT OF WAY-DITCH-WATER-REAL ESTATE-FORFEITURE-NONUSER.-Possessory rights to rights of ways for irrigating ditches and the right to the use of water may each have an existence independent of the other. A ditch may be conveyed reserving the water right, or the water right may be conveyed reserving the ditch. Under the provisions of section 2825 of the Revised Statutes possessory rights to ditch and water rights are real property or real estate. The owner of a ditch on public lands of the United States does not forfeit the same merely by nonuser. Welch v. Garrett ante, p. 639, 51 P. 405, cited and approved.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Affirmed and ordered, with costs.

Hawley & Puckett, J. H. Richards and Hugh E. McElroy, for Appellants.

An action to establish a right to the possession of a right of way over which to divert water cannot be maintained exclusive of the right to divert water, especially as against one who has such right to divert. (Smith v. Hawkins, 110 Cal. 122, 42 P. 453.) There is only one way, so far as this controversy is concerned, to acquire the right to the possession of a right of way over the public domain and that is as follows: "Whenever, by priority of possession rights to the use of water for . . . agricultural purposes, have vested and accrued; . . . . the right of way for the construction of . . . . canals . . . . is acknowledged and confirmed." (U.S. Rev. Stats., sec. 2339.)

N. M. Ruick and W. E. Borah, for Respondent.

Possessory rights to ditches and possessory rights to water may each have an existence independent of the other. That a person may convey a water right, reserving the ditch, or convey a ditch independent of the right to the use of the water accustomed to flow therein, is, we think, clearly within reason. A ditch is itself land. (Kinney on Irrigation, sec. 224, and cases cited in note; Reed v. Spicer, 27 Cal. 58.) Interest in water ditch is real estate, and can only be transferred by deed, prescription or condemnation. (Burnham v. Freeman, 11 Colo. 601, 19 P. 761; Smith v. O'Hara, 41 Cal. 371.) For a case recognizing ownership of ditch in one person and ownership of water running therein in another, see Clifford v. Larrien (Ariz.), 11 P. 397. A ditch constructed on unoccupied public lands of the United States is held by grant, and the owner of such ditch does not forfeit his right thereto merely by nonuser. (Welch v. Garrett, ante, p. 639, 51 P. 405.)

SULLIVAN, C. J. HUSTON and Quarles, JJ., concur.

OPINION

SULLIVAN, C. J.

This is an action to recover possession of a certain right of way for an irrigating ditch in Ada county, on which is situated an uncompleted canal. It is alleged in the complaint that on the eighteenth day of January, 1896, one Eagleson located a water right, the water appropriated thereby to be used in the irrigation of certain lands therein described, and that a notice thereof was duly posted on the south bank of Boise river, about one mile above what is known as the "New York dam site," and nearly opposite the mouth of Sheep gulch, in Ada county (that being the place of intended diversion), whereby he claimed the waters of said river, to the amount of three hundred cubic feet per second; that within the time required by law a copy of said notice was filed for record in the recorder's office of Ada county, and a duplicate copy thereof in the office of the state engineer; that said Eagleson, who is designated "promoter" in trust for the plaintiff corporation thereafter to be formed, began, within sixty days after posting said notice, to construct a canal, by surveying, laying out, and staking off a right of way. Then follows a description of said right of way, which substantially covers the right of way claimed by the defendant corporation, and commonly known and designated as the "New York Canal Right of Way." It is also alleged that Eagleson, after said eighteenth day of January, 1896, became and was in the lawful and undisputed possession of said right of way, and proceeded with diligence in the construction of a ditch thereon; that thereafter, on the tenth day of February, 1896, said Eagleson, together with others, organized the corporation plaintiff and appellant, and that on the 29th of February said Eagleson conveyed to said corporation all of the rights he had acquired in and to said water right and right of way; that thereupon the plaintiff corporation took possession of said right of way, and diligently proceeded with the construction of a canal upon said right of way; that, while the plaintiff was such owner and in possession of said right of way, the defendant corporation, on or about the twentieth day of April, 1896, willfully and maliciously, with force and violence, and, without right or title, drove the plaintiff, its agents and employees, therefrom, and took possession of said right of way, except that part situated between the point where the said notice of location of water right was posted and the point commonly known as the "New York dam site," and ever since has withheld, and still withholds, possession thereof; that defendant has committed waste on said right of way, to plaintiff's damage in the sum of $ 1,000. The second cause of action set up in the complaint is equitable in its nature, and under it a temporary injunction. The defendant makes an answer, and files a cross-complaint. In them are set forth a brief history of the organization of the Idaho Mining and Irrigation Company; its ownership of certain water rights, and the greater portion of the right of way described in the complaint; the operations of said company, and its expenditure of about $ 300,000 upon said right of way, in surveying and constructing a very large canal, about six miles in length, which resulted in the insolvency of said company, and a large indebtedness to one W. C. Bradbury for constructing said canal; the purchase of said canal, right of way, and water rights of said company by said Bradbury at sheriff's sale--and alleges the organization of the defendant corporation, and the sale and transfer to it by Bradbury of said canal and right of way, and the work done by said defendant company thereon since its purchase thereof. The trial was by the court, without a jury, and judgment was rendered in favor of the plaintiff for the recovery of that part of the right of way situated above the said New York dam site; and it rendered judgment in favor of the defendant for the remainder of said right of way, or that below said dam site. A motion for a new trial was interposed by the appellant, and denied by the court. The appeal is from the judgment, and an order overruling the motion for a new trial.

This appeal involves the right to the possession and ownership of that portion of said right of way below said dam site, no appeal having been taken from the judgment awarding that part of said right of way above said dam site to the appellant. It appears from the record that one Eagleson located a water right on Boise river on January 18, 1896, with a view of diverting the water by means of a canal, and surveyed a right of way therefor, which right of way was substantially the same as the right of way hereinafter referred to as the "New York canal and right of way" (the intention being to appropriate said right of way), and the uncompleted canal situated thereon; that thereafter, on the 10th of February, 1896, said Eagleson, with others, organized the corporation plaintiff, and on the twenty-ninth day of February, 1896, conveyed whatever title he had acquired to said right of way and water right to said corporation; that thereupon said corporation began the construction of a canal on said right of way; that on about April 20, 1896, the defendant corporation, through its agents and employees drove the agents and employees of the plaintiff corporation therefrom, and took possession thereof for the defendant, except that portion situated above said...