Brown v. Newell

• Decision Date: 08 March 1906
• Citation: 12 Idaho 166,85 P. 385
• Parties: PETER BROWN, Respondent, v. WM. W. NEWELL, Appellant
• Court: Idaho Supreme Court

85 P. 385

12 Idaho 166

PETER BROWN, Respondent, v. WM. W. NEWELL, Appellant

Supreme Court of Idaho

March 8, 1906

APPEAL from District Court of Fourth Judicial District for Elmore County. Hon. Lyttleton Price, Judge.

Defendant appealed from the judgment and order denying the motion for a new trial. Affirmed.

Judgment of the lower court affirmed. Costs in favor of respondent.

Wyman &amp Wyman, for Appellant Newell.

A water right may be acquired without any compliance whatever with the statutes relating to the location of water. "A person deciding to appropriate the waters of a stream may do so either by actually diverting the water and applying it to a beneficial purpose, or he may pursue the statutory methods by posting and recording his notice, then commencing and prosecuting his work within the statutory time." (Sand Point W. & L. Co. v. Panhandle D. Co., 11 Idaho 405, 83 P. 347.) "When an appropriator of water does not post and file notice of location as provided by law his right only dates from the last act perfecting such appropriation." (Pyke v. Burnside, 8 Idaho 487, 69 P 477.)

The purpose and object of the legislature was merely to define with precision the conditions upon which the appropriator of water could have the advantage of the familiar doctrine of relation. (De Necoches v. Curtis, 80 Cal. 397, 20 P. 563, 22 P. 198; Murray v. Tingley, 20 Mont. 260, 50 P. 723; Farnham on Water Rights, sec. 663.)

As between two appropriators, neither of whom has complied with the statutes requiring the posting and recording of the notice of appropriation, the one who has his ditch completed and the water flowing over his land first has the superior right, notwithstanding the other first commenced work on his ditch. (17 Am. & Eng. Ency. of Law, 498; Long on Irrigation, 72.)

A statute as to notice is to be construed strictly and rights can be acquired under it only by strict compliance with its terms. (Long on Irrigation, secs. 37, 51; Taylor v. Abbott, 103 Cal. 421, 37 P. 408; 17 Am. & Eng. Ency. of Law, 502; Murray v. Tingley, supra; Umatilla I. Co. v. Barnhart, 22 Or. 366, 30 P. 30 (37).)

Respondent's grantor had been out of possession for more than two years when he gave the deed. This is the exact condition of fact that existed in the case of McGinnis v. Stanfield, 6 Idaho 372, 55 P. 1020, where this court held such deed to be without effect.

Before secondary evidence can be introduced, it must be shown that a diligent and unsuccessful search was made for the document. (25 Am. & Eng. Ency. of Law, 165.) A deed or other instrument deposited as an escrow is nothing more than a mere scroll until the condition is fully performed or the contingency happens upon the faith of which it was deposited; and this being so, no title passes prior to that time without the grantor's consent. (11 Am. & Eng. Ency. of Law, 348, 349.)

E. M. Wolfe, for Respondent.

A person may add from year to year acreage to his cultivated land, and increase his application of water thereto for irrigation as his necessities may demand or as his abilities permit, until he has put to a beneficial use the entire amount of water at first diverted by him and conducted to the point of intended use. (Conant v. Jones, 3 Idaho 606, 32 P. 250; Hall v. Blackman, 8 Idaho 272, 68 P. 19.)

The deed of respondent's grantor conveyed all of his interest in the property described to respondent. (Day v. Cohn, 65 Cal. 508, 4 P. 511.)

AILSHIE, J. Stockslager, C. J., and Sullivan, J., concur.

OPINION

STATEMENT OF FACTS. This is a contest between two appropriators and users of the waters of Deer Creek in Elmore county. It appears from the evidence that Richard Horton, the predecessor in interest of the plaintiff, settled upon unsurveyed government land on Smith's prairie, in Elmore county, about August 1, 1899. Horton testified on behalf of the plaintiff as follows: 'I went upon the land belonging to the plaintiff about August 1, 1899. That fall I cleaned out what ditch there was dug there--that is, a little--and ran it down through there, and then went on with the survey, and found out that the ditch was an old survey by Peterson, who had been on the ground before I went there, was too high. I resurveyed it and cut out some brush, and then winter was on, and I went down to Highland valley and stayed that winter. Within one hundred and fifty feet of the headgate the ditch struck the line of my land. The water was running in that ditch when I went there. I cleaned it out, and had a little more put into it, before I left that fall. I cut between twenty-five and thirty acres of hay, in 1900, and had about one-half of an acre in garden, and a little patch of wheat for a trial patch. There was no person on the Newell lands when I went there. I improved the land during the summer of 1900, and also irrigated it and cut hay from it in 1901. Mr. Pierce cut the hay that year. In 1902, I sold to the plaintiff Brown. I judge that the ditch would carry two hundred inches after I cleaned it out in the fall of 1899. In 1900 and 1901, I used all of the water of the creek along in July and August.

"The man who was on the land before me had abandoned it. I put in a headgate and cleaned out the ditch a little. It was a little over one hundred feet long when I went there. I put in a small headgate made of old drygoods boxes and one thing and another. I made a sort of temporary gate--done well enough; I took a couple of hours to make it and put it in. It took me about one-half day to clean out the ditch, using pick and shovel. That ditch ends right in the field, a little draw that runs down onto the place. I went on the ground some time in August, and the work above mentioned was done about two months later. I left the property in December. The survey ran too high--either on a dead level or up. The water has been running in that ditch ever since I turned it in in the fall. It is running in there now. From the end of that ditch I commenced my survey. I used that portion of it dug. I began constructing the ditch next spring, the latter end of April, and worked on and off all the time till I got it done, up into the latter end of June. I had water running in on that place--I got the ditch dug the latter end of June, 1900. The hay on the place is wild hay. I sold to plaintiff May 20, 1902. He took possession at that time. I used all the water there was in the creek during July and August of 1900 and 1901."

The plaintiff Brown testified that he took possession of the land on May 20, 1902, receiving possession from Horton; that he had a written agreement with Horton which was left in escrow with one Baker. That Baker thereafter died, and that plaintiff, prior to the trial, made inquiry of Baker's wife concerning this escrow, and that she could not find it, and that he (plaintiff) did not know the whereabouts of that agreement or contract. He further testified that by virtue of the contract or agreement, Horton conveyed the land and water right in question to the plaintiff, and that plaintiff had paid the sum of $ 40 on the purchase price at the time the agreement was made and possession delivered. On June 2, 1904, Horton executed and delivered to plaintiff a deed for the land and water right described in the complaint, whereby he conveyed all of his rights, title and interest in and to the property in question. Plaintiff continued to cultivate and irrigate the land from the time of his purchase from Horton until the trial of this case.

On May 9, 1900, the defendant Newell settled on a part of the unsurveyed public domain which now belongs to him. Two days previous to that time, his brother, who claimed to be a partner, had made settlement, and commenced to open up an old ditch, and within a couple days the two completed the ditch and turned water through it and onto their land, and have continued ever since to use the water in the irrigation of their land. Defendant is the successor by purchase to all the interest of his brother. At the trial, after the plaintiff had shown the settlement, appropriation and diversion by his predecessor and grantor, Horton, and his purchase from Horton, and entry into possession, and subsequent use and application of the water, he offered to prove the nature of the agreement entered into between him and Horton at the time he took possession. The defendant objected on the grounds that it was not the best evidence, and plaintiff had not shown diligence in his effort to produce the original contract which was in writing. The district court appears to have ruled with the defendant upon this objection, and thereupon the defendant introduced evidence showing his settlement, and also his appropriation and diversion of the...