Brossard v. Morgan

Citation7 Idaho 215,61 P. 1031
PartiesBROSSARD v. MORGAN
Decision Date23 June 1900
CourtUnited States State Supreme Court of Idaho

FINDINGS-REVIEW ON APPEAL.-In the absence of evidence, the findings of fact cannot be reviewed upon appeal, or their correctness questioned.

WATER RIGHT-STATUTE OF LIMITATIONS.-To bar the claim of a senior appropriator of water by limitation, or lapse of time, in favor of a junior appropriator, the latter must show continuous adverse possession and use in himself, accompanied by claim of title, and such possession and use as excludes the senior appropriator from the possession and use of such water.

ADVERSE POSSESSION AND USE OF WATERS.-A right to the use and possession of the waters of a stream may be acquired by prescription, only when accompanied by claim of title, and by such possession and use as excludes other claimants from the use and possession thereof.

SAME.-Plaintiff appropriated, diverted and used for the irrigation of their certain lands, two hundred and twenty inches of the waters of Stockton creek, and continuously used same from the date of appropriation, May 1, 1870, to the commencement of the action, July 25, 1893; defendant appropriated one hundred and fifty inches of water from said stream, May 1, 1880, and continuously used same for irrigating his lands up to the time of the commencement of the action, but did not deprive the plaintiffs of the possession and use of the waters claimed by him. Held, that plaintiffs were not bound by limitation from asserting prior rights to the use of said stream against the defendant, and that the right of the latter is subordinate to those of the plaintiff.

PLEADING AND PRACTICE-AMENDMENT TO CROSS-COMPLAINT.-It is not necessary to deny affirmative allegations in an amendment to a cross-complaint made by a defendant, when such allegations were contained, in substance, in the original cross-complaint of the defendant, and denied by the answer of plaintiff thereto.

(Syllabus by the court.)

APPEAL from District Court, Bannock County.

Judgment affirmed. Costs awarded to respondents.

Dietrich & Stevens, A. A. Fraser and John T. Morgan, for Appellants.

A water right is real estate and subject to all of the rights and limitations of real estate. (Wyatt v. Irrigation Co., 18 Colo. 298, 36 Am. St. Rep. 280, 33 P. 144; Travelers' Ins. Co. v. Childs, 25 Colo. 360, 54 P. 1020.) A water right acquired by the user of water under a contract with an irrigation company is an incorporeal herditament descendible by inheritance to the owner's heirs and constitutes a freehold estate. (Wyatt v Larimer, 18 Colo. 298, 36 Am. St. Rep. 280, 33 P. 144.) Where deeds to land include appurtenances to the land, the right to the water passed to the plaintiff like other appurtenances to real estate. (Smith v. North Canyon Water Co., 16 Utah 194, 52 P. 283.) Uninterrupted use for thirteen years of a certain quantity of water constitutes an abandonment on the part of the former claimant. (Smith v. North Canyon Water Co., 16 Utah 194, 52 P. 283; Ada Co. Farmers' Irr. Co. v. Farmers' Canal Co., 5 Idaho 793, 51 P. 990; McMasters v Torsen, 5 Idaho 536, 51 P. 100.) A water right is not barred by acquiescence in an impairment thereof for less time than is required for adverse user. (Mayberry v. Alhambra Add. Water Co., 122 Cal. 152, 54 P. 530.) The right of the appropriator of water held to depend on the statute of limitations, as against a purchaser of land from the government only as to acts subsequent to the purchase. (Wood v. Etiwanda Water Co., 122 Cal. 152, 54 P 726; McClure v. Koen, 25 Colo. 284, 23 P. 1058; Carson v. Gentner, 33 Ore. 512, 52 P. 506; Kleyenstuber v. Robinson (Ariz.), 52 P. 1117; Dunniway v. Lawson, 6 Idaho 28, 51 P. 1032; Union Water Co. v. Crairy, 25 Cal. 509, 85 Am. Dec. 145; Davis v. Gale, 32 Cal, 35, 91 Am. Dec. 554; Evans v. Ross (Cal.), 8 P. 88; Smith v. Logan, 18 Nev. 149; Wiggins v. Muscupiabe Land etc. Co., 113 Cal. 182, 54 Am. St. Rep. 337, 45 P. 160; Becker v. Marble Irr. Co., 15 Utah 225, 49 P. 892, 1119.) Ditches and water rights are real estate under the Idaho Revised Statutes, section 2825. (Ada Co. Farmers' Irr. Co. v. Farmers' Canal Co., 5 Idaho 793, 51 P. 990; State v. Corbit, 116 Cal. 587, 48 P. 725; Harris v. Harrison, 93 Cal. 676, 29 P. 325; Wiggins v. Water Co., 113 Cal. 182, 54 Am. St. Rep. 337, 45 P. 160; Senior v. Anderson (Cal.), 47 P. 456, 457; Smith v. Greene, 109 Cal. 228, 41 P. 1022; Greene v. Carrotta, 72 Cal. 267, 13 P. 685.)

W. E. Borah, for Respondent.

We call the court's attention to the fact that the record fails to disclose the entry of the judgment or decree, from which the appeal is supposed to have been taken, and therefore there is nothing to appeal from so far as the judgment or decree is concerned, and the appeal is ineffectual. (McLaughlin v. Dougherty, 54 Cal. 519; Meysan v. Chabrick, 33 Kan. 640, 7 P. 213; Kimple v. Conway, 60 Cal. 71, 10 P. 189.) In view of the fact that there is no statement here, no bill of exceptions, no evidence before the court, and that the appeal was not taken within sixty days, we think we should not trespass upon the time of the court by discussing many of the propositions which are discussed in counsel's brief. (Jones v. Quayle, 3 Idaho 640, 32 P. 1134; Steffy v. Esler, 6 Idaho 228, 55 P. 239; Zion's Merc. Inst. v. Armstrong, 6 Idaho 464, 56 P. 168; Young v. Tiner, 4 Idaho 269, 38 P. 697.)

QUARLES, J. Huston, C. J., and Sullivan, J., concur.

OPINION

QUARLES, J.

This action came before us and was considered upon a former appeal (see Brossard v. Morgan, 6 Idaho 479, 56 P. 163), when this court refused to reverse an order granting a new trial. Upon a retrial of the cause the lower court found that the plaintiffs (respondent here) were prior appropriators of the water of Stockton creek, claimed by them, and which is in dispute, and decreed their rights to be prior in time to those claimed by the appellant. This appeal is upon the judgment-roll, so far as the appeal from the judgment is concerned; the evidence not being in the record, either by way of bill of exceptions, or statement on motion for new trial. The findings were filed April 28, 1899, and a decree in accordance therewith was made and entered on that day. August 8, 1899, the appellant moved the court to correct the findings and decree in certain particulars. This motion was denied, and appellant also appeals from the order denying said motion. The appellant waives, on this appeal, his said motion, in so far as it seeks to correct the findings of fact, and it is well that he does so. In the absence of the evidence, the findings of fact cannot be reviewed on appeal, or their correctness questioned.

The court found that the lands of all the parties were arid--not susceptible of producing crops without irrigation--and that the appropriation, diversion, and user of the water of Stockton creek by the parties and their predecessors in interest, respectively, had been continuous and for useful and beneficial purposes, and that same had been in quantity and at times as follows: By plaintiff Brossard, one hundred and fifteen inches, May 1, 1870; by plaintiff Van Ness, one hundred and five inches, May 1, 1870; by the intervener, Hadley, twenty-five inches, May 1, 1870; and that by defendant, Morgan, one hundred and fifty inches from and since May 1, 1880. The court also found that the quantity of water claimed by each of the parties was necessary for the irrigation of their said lands, respectively, and that there was no source of supply, other than Stockton creek, from which water could be obtained for the irrigation of said lands. The findings are supported by the...

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    • United States
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    • 9 Febrero 2007
    ...before and since the adoption of our constitution, is . . . that he who is first in time is first in right." Brossard v. Morgan, 7 Idaho 215, 219-20, 61 P. 1031, 1033 (1900). Thus, water rights obtained in a manner that is now called the constitutional method of appropriation are entitled t......
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