Bedal v. Smith

• Decision Date: 28 March 1923
• Citation: 36 Idaho 797,214 P. 213
• Parties: WILLIAM BEDAL and JESSIE BEDAL, Appellants, v. FRANK SMITH and ANDREW SMITH, Respondents
• Court: Idaho Supreme Court

214 P. 213

36 Idaho 797

WILLIAM BEDAL and JESSIE BEDAL, Appellants, v. FRANK SMITH and ANDREW SMITH, Respondents

Supreme Court of Idaho

March 28, 1923

WATER RIGHT-CHANGE OF PLACE OF USE-FINDING OF TRIAL COURT ON CONFLICTING EVIDENCE NOT DISTURBED ON APPEAL - DEED REFORMATION OF.

Where there is a conflict in the evidence the findings and judgment of the trial court will not be disturbed when the proof is sufficient, if uncontradicted, to sustain it.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles F. Reddoch, Judge.

Action to quiet title to water and for the reformation of a deed. Judgment for defendants. Affirmed.

Judgment of the trial court affirmed. Costs awarded to respondents.

Wood &amp Driscoll, for Appellants, cite no authorities on point decided.

Clinton H. Hartson, for Respondents, files no brief.

BUDGE C. J. McCarthy, William A. Lee, Dunn and Wm. E. Lee, JJ., concur.

OPINION

BUDGE, C. J.

This is an action to quiet title to the use of certain water and for the reformation of a deed given by appellants to respondents.

From the record it appears that appellants were the owners of two tracts of land known as the Basil and the Matli or Sandlin tracts. Highland Creek divides these two tracts of land. Prior to the sale of the Basil land to respondents, in an action between Bedal and one, Alfred Percy, an owner of land above the tract owned by Bedal, a stipulated decree was entered wherein the waters of Highland Creek were decreed to Bedal and Percy as follows: The latter was adjudged to be entitled to the use of the waters of that stream to be used upon his land four days each week. The former was entitled to the use of the waters of that stream upon the Basil tract for three days out of each week so long as the flow of the stream was not less than 25 miner's inches, in which event Percy was to divert and use all of the waters of Highland Creek. Subsequent to the decree, Bedal purchased the Matli or Sandlin tract and applied a portion of the waters, decreed to him as aforesaid, upon that tract. Thereafter, in the spring of 1915 appellants, by warranty deed, transferred the Basil tract to respondents, "together with all the irrigation ditches or laterals or water rights therein belonging or in anywise appertaining thereto," and "together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining."

It is the contention of appellants that since, under the decree they were entitled to the use of the waters of Highland Creek upon the Basil land three days out of each week so long as the flow exceeded 25 miner's inches, and having diverted a portion of said waters upon the Matli or Sandlin tract, the water became appurtenant to that tract and was in no way affected or controlled by the deed given to respondents. It is further contended that at the time the deed was given it was expressly understood by respondents...