Bothwell v. Keefer

• Decision Date: 02 November 1933
• Docket Number: 5979
• Citation: 53 Idaho 658,27 P.2d 65
• Parties: JAMES R. BOTHWELL, Appellant, v. JOS. KEEFER, J. A. KEEFER and DONALD MACKAY, Trustees of the FILER LIVESTOCK COMPANY, INC., a Corporation, Defendants, and FEDERAL RESERVE BANK OF SAN FRANCISCO, CALIFORNIA, a Corporation, Respondent
• Court: Idaho Supreme Court

27 P.2d 65

53 Idaho 658

JAMES R. BOTHWELL, Appellant, v. JOS. KEEFER, J. A. KEEFER and DONALD MACKAY, Trustees of the FILER LIVESTOCK COMPANY, INC., a Corporation, Defendants, and FEDERAL RESERVE BANK OF SAN FRANCISCO, CALIFORNIA, a Corporation, Respondent

No. 5979

Supreme Court of Idaho

November 2, 1933

ATTACHMENT-REAL PROPERTY-APPURTENANCES-WATER RIGHTS.

1. Only one statute with regard to liability under attachment bond was at all times in force even though amended, amendment being read into and becoming part thereof (I. C. A., sec 6-503).

2. Though shares of stock in irrigation company may be personalty, water right which controls is real property and included in attachment of real estate (I. C. A., secs. 6-506, 8-201, 41-1725, 41-2101 to 41-2109, 54-101, 54-603).

3. Water right is attached equally with land to which it is appurtenant, though land alone is specified in writ or return of attachment (I. C. A., sec. 41-1725).

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. William A. Babcock, Judge.

Intervention on attachment. Judgment for intervenor. Affirmed.

Judgment affirmed; costs to respondent. Petition for rehearing denied.

Ray Agee and Vaughn A. Price, for Appellant.

Although a water right may be appurtenant to land, it is real property; the subject of property; a distinct subject of grant; a separable appurtenance; transferable either with or without the land as real property. Therefore whether a conveyance of land conveys the water right depends upon the intention of the grantor, to be gathered from the express terms of the conveyance, or, when the conveyance is silent from the circumstances. The sheriff in an attachment proceeding acting as the agent of the attaching creditor (purchaser) and accomplishing an involuntary conveyance, conveys only that which has been specifically described, and there can be no intention presumed or determined from the conveyance or the circumstances, the sheriff's intention or the purchaser's intention not controlling. ( Cooper v. Shannon, 36 Colo. 98, 85 P. 175, 118 Am. St. 95; First Security Bank v. State, 49 Idaho 740, 291 P. 1064; Andrews v. North Side Canal Co., 52 Idaho 117, 12 P.2d 263; Harris v. Chapman, 51 Idaho 283, 5 P.2d 733.)

A. C. Agnew and Merrill & Merrill, for Respondent.

When title to land passed from the United States to the state and the water right was thus dedicated to the land, it became a complement or appurtenance to the land. (Section 41-101, I. C. A. 1932; sec. 556, C. S. 1919; Andrews v. Northside Canal Co., 52 Idaho 117, 12 P.2d 263.)

The word "appurtenance" need not be used in a conveyance of land in order to include therein the water privileges appurtenant thereto and all other things essential to its complete enjoyment. (Scott v. Michaels, 129 Ind. 250, 28 N.E. 546; Tucker v. Jones, 8 Mont. 225, 19 P. 571; Cave v. Crafts, 53 Cal. 135.)

GIVENS, J. Budge, C. J., and Holden and Wernette, JJ., concur. MORGAN, J., Dissenting.

OPINION

GIVENS, J.

November 30, 1931, three writs of attachment were issued in behalf of intervenor, each against, "all the property of said defendant Filer Livestock Company, Inc., a corporation, or so much thereof as may be sufficient to satisfy said plaintiff's demands. "

Thereafter the sheriff of Twin Falls county levied and made return on said writs of attachment as follows:

"To the County Recorder of Twin Falls County, Idaho:

"PLEASE TAKE NOTICE that by virtue of the annexed writ of attachment, I hereby attach all right, title and interest of every kind and character of FILER LIVESTOCK CO., Inc., a corporation:",

describing only certain real property, making no mention of any water rights whatever.

"I, E. F. Prater, sheriff of the County of Twin Falls, State of Idaho, hereby certify that I received the within and hereunto annexed Writ of Attachment on the 30th day of November, 1931, and executed the same within said County and State, on the 30th day of November, 1931, by delivering to and leaving with Harry C. Parsons, County Recorder of Twin Falls County, State of Idaho, a copy of said Writ of Attachment, together with a notice in writing that all the right, title, interest and claim of FILER LIVESTOCK COMPANY, Inc., a corporation, the within named defendant, of, in and to the following described real estate, was attached and levied upon by virtue of said Writ of Attachment, to-wit:"

Likewise describing only real estate, mentioning no water rights. A Carey Act water right was appurtenant to said real estate being used thereon at the time by the debtor.

Thereafter appellant attached in the present proceeding such water rights, the intervenor coming in on the claim that its attachment of the real property above indicated covered the water rights and was therefore prior, which appellant resisted.

Appellant attacks respondent's original attachment bond on the ground that it referred only to section 6781 of C. S. for 1919 (now sec. 6-503, I. C. A.), and was thereby insufficient because no mention was made of the liability added by chapter 206, 1921 Session Laws, page 416. After the amendment section 6781 still remained such section in C. S., with, however, the amendment read into, and part thereof, the same as though thus originally stated. (59 C. J. 1096, sec. 647, note 26.) The amendment to the statute was in force at the time the bond was given, which distinguishes it from Anthony v. Van, 96 Cal.App. 523, 274 P. 563, 564.

Only one statute with regard to liability under an attachment bond was at all times in force, namely, section 6781, though amended. (Gordon v. Kerr, ante, p. 106, 21 P.2d 930.)

The real question is whether or not an attachment of real property which has appurtenant thereto a Carey Act water right, without mention of such water right, creates a lien upon such water right.

Wells v. Price, 6 Idaho 490, 56 P. 266, held, that to be effective an attachment upon shares of stock in an irrigation company levied October, 1891, must have been levied in accordance with sections 4307 and 4477, R. S., now sections 6-506 and 8-201, I. C. A., saying:

"Shares of stock in an irrigation corporation are not appurtenant to the land owned by the owner of such shares, even though such land be irrigated by water from a canal owned by such corporation."

In 1895, after the attachment in the above case, the legislature passed the statute now section 41-1725, I. C. A., making Carey Act water rights appurtenant to land. Thereafter the court in Ireton v. Idaho Irr. Co., Ltd., 30 Idaho 310, 164 P. 687, held a Carey Act water right to be real property and that the shares are merely incidental to the ownership of the water rights, following the water rights which in turn are real property appurtenant to the land.

Thus, while the shares of stock may be personalty, the water right, which controls, is real property. (Watson v. Molden, 10 Idaho 570, 79 P. 503; Paddock v. Clark, 22 Idaho 498, 126 P. 1053.) Which is likewise the statute, sec. 54-101, I. C. A.

Appellant, however, relies on the case of Cooper v. Shannon, 36 Colo. 98, 85 P. 175, 18 Am. St. 95, to support the contention that the attachment without mention of the water right did not operate thereon.

Carey Act water rights can be separated from the land only under the procedure provided in sections 41-2101 to 41-2109, I. C. A.

This court has held, construing the Shannon case, that a water right passes with the realty to which it is appurtenant unless there is intention to the contrary (Molony v. Davis, 40 Idaho 443, 449, 233 P. 1000), and easements pass with the realty (section 54-603, I. C. A.), concerning which this court has held the following:

"And the general rule is that where an easement is annexed to land, either by grant or prescription, it passes as an appurtenance with the conveyance 'of the dominant estate, although not specifically mentioned' in the deed, or even without the use of the term 'appurtenances,' 'unless expressly reserved from the operation of the grant.' (19 C. J., pp. 935, 936.)" (Johnson v. Gustafson, 49 Idaho 376, 381, 288 P. 427.)

Conceding that an easement is different from a water right, water rights and appliances connected therewith have been considered, so far as the point here is concerned, sufficiently similar to easements, to pass with the land though not mentioned as such or as appurtenances. (Cave v. Crafts, 53 Cal. 135; Cross v. Kitts, 69 Cal. 217, 221, 10 P. 409, 58 Am. Rep. 558; Eshelman v. Snyder et al., 82 Ind. 498, 501; Frank v. Hicks, etc., 4 Wyo. 502, 35 P. 1025; Tucker v. Jones, 8 Mont. 225, 231, 19 P. 571; Hindman v. Rizor, 21 Ore. 112, 118, 27 P. 13; Simmons v. Winters, 21 Ore. 35, 46, 27 P. 7, 28 Am. St. 727; Farmer v. Ukiah Water Co., 56 Cal. 11, 15; Hard v. Boise City Irr. & L. Co., 9 Idaho 589, 76 P. 331, 65 L. R. A. 413.)

The Shannon case relied upon by appellants rests for its conclusion that the sheriff's deed there did not cover the water right, on chapter 107, 1893 Session Laws of Colorado, page 298, ^[1] which statute we do not have.

Montana, construing Ireton v. Idaho Irr. Co., Ltd., supra, has held in effect contrary to the rule in Colorado and in effect that contended for by respondents herein. (Yellowstone Valley Co. v. Associated Mortg. Investors, 88 Mont. 73, 290 P. 255, 70 A. L. R. 1002.)

In Andrews v. North Side Canal Co., 52 Idaho 117, 126, 12 P.2d 263, this court was considering whether an assessment of real property was valid without mentioning the water right and concluded thus:

"We are clearly of the opinion that the water right in the instant case is real estate, and under a fair construction of the statutes to which reference has been made, is appurtenant to and an integral part of the land to...