Carrington v. Crandall, 7140
| Decision Date | 12 April 1944 |
| Docket Number | 7140 |
| Parties | C. E. CARRINGTON, Appellant, v. LYNN CRANDALL, NORMA DUSTIN and MRS. NORMA DUSTIN, RALPH BYRNE and MRS. RALPH BYRNE, HENRY BATES and MRS. HENRY BATES, BEATRICE M. KRITCHLOW, MRS. GEORGE E. WOOD, ORAL WOOD, DWIGHT WOOD, GOLDEN R. WOOD, ELWIN WOOD, CLIFFORD WOOD, DARREL WOOD, infant, GLORIA WOOD, infant; said infants by and through their guardian ad litem, Golden R. Wood, Respondents |
| Court | Idaho Supreme Court |
1. Appeal and error
Where there is substantial evidence to support court's findings, judgment based thereon will not be interfered with.
2. Abandonment
Abandonment of real property right cannot be declared except upon clear and convincing evidence.
3. Waters and water courses
Abandonment of a water right must be continuous for 5 successive years. (I.C.A., sec. 41-216.)
4. Waters and water courses
Although statutory abandonment of a water right has occurred forfeiture is not effective if, after five-year period original owner or appropriator resumes the use of the water prior to claim of right by a third party. (I.C.A., sec 41-216.)
5. Abandonment
The essential element of actual "abandonment" is intent to leave, quit, renounce, resign, surrender, relinquish vacate, or discard; "abandon" denoting the absolute giving up of an object, often with further implication of its surrender to the mercy of something or someone else.
6. Waters and water courses
Evidence that occupation of water right was intermittently interrupted and not wholly under assertion of right and absence of evidence of payment of taxes failed to establish adverse possession of water right. (I.C.A., secs. 5-210, 41-216.)
7. Waters and water courses
In action to quiet title to water rights held adversely defendants claiming decreed water were not barred by estoppel and laches from having the right quieted in them where there was lack of acquiescence in plaintiff's claim, and no substantial expenditure appeared to have been made upon the claim of ownership. (I.C.A., sec. 41-216.)
8. Judgment
A decree is binding as to parties to action but not as to any person not a party or privy thereto.
Appeal from the District Court of the Ninth Judicial District, for Teton County. Hon. C. J. Taylor, Judge.
Affirmed.
A. A. Merrill, L. H. Merrill, and Black & Black for appellant.
All right to the use of waters in Idaho, acquired as provided by law or otherwise, including water that has been decreed, shall be lost and abandoned by a failure for the term of five years to apply it to the beneficial use for which it was appropriated. (Sec. 41-216, I. C. A., 1932; Albrethsen v. Wood River Land & Livestock Co., 40 Ida. 49 231 P. 418; Washington State Sugar Co. v. Goodrich, 27 Ida. 26, 147 P. 1073; Chill v. Jarvis, 50 Ida. 531, 298 P. 273; Wyoming Corp. Ranch v. Hammond Pkg. Co., 263 P. 764 (Wyo.)
Rule of laches and estoppel can be invoked without pleading laches and estoppel when the facts which lead to application of rule appear from proof submitted by respective parties on the trial. (Hillcrest Irrigation District v. Nampa Irrigation District, 57 Ida. 403, 66 P.2d 115; Powell Sanders Co. v. Carson, 28 Ida. 201, 152 P. 1067; Peltengill v. Blackman, 30 Ida. 241, 164 P. 358; Mabee v. Pacific Mutual Life Ins. Co., 27 Ida. 681, 219 P. 602.)
S. H. Atchley for respondents.
The award of two hundred twenty (220) inches of water to George W. Allen with priority date of May 26, 1900, was made appurtenant to the lands described in the Snake River decree as the George W. Allen lands and would remain appurtenant thereto unless conveyed or transferred to other lands or abandoned. (I. C. A. 41-216; Hillcrest Irr. Dist. v. Nampa, Etc. Irrig. District, 57 Ida. 403; Zezi v. Lightfoot, 57 Ida. 707; First Security Bank of Blackfoot v. Wood Livestock Co., 49 Ida. 740, 291 P. 1064.
Abandonment results in reversion as to the right of the State of Idaho. No other person acquires any interest thereby. To constitute abandonment there must have been a total and continuous failure to apply the water to beneficial use for the full period of five years. (I. C. A. 41-216; Zezi v. Lightfoot, Supra.)
In an action to quiet title to a water right which had been previously decreed to an earlier appropriator the plaintiff, relying upon abandonment of the decreed right and the subsequent right in himself by appropriation, must plead the facts showing abandonment and his own subsequent appropriation or prescriptive right. (I. C. A. 5-605; Neilsen v. Board of Dir. Big Lost River Irrig. Dist., 117 P.2d 472, (Ida.); McDonald v. Lannen, 47 P. 648, (Mont.); Watts v. Spencer, 94 P. 39, (Ore.)
"Abandonment is a matter of intent coupled with a corresponding conduct; thus a question of fact." (St. John Irrig. Co. v. Danforth et al., 50 Ida. 513-516.)
Ailshie, J. Holden, C. J., and Givens and Dunlap, JJ., concur. Budge, J., sat at the hearing but did not participate in the decision.
The original complaint in this action was to quiet title to the waters of Mahogany Creek in Teton county. By amendment 4A to the complaint, appellant claimed adverse possession, and that respondents had abandoned their decreed rights by failing for more than five years to apply the waters to a beneficial use.
By the Snake River Decree, dated December 16, 1910, the following water rights, among others, were awarded the parties in this action or their predecessors in interest:
"C. E. Carrington, plaintiff, 160 miner's inches with priority of May 26, 1900, in Mahogany Creek;
Norma Dustin and Mrs. Norma Dustin, by mesne conveyances from George W. Allen, 160 miner's inches in Mahogany Creek, with priority of May 26, 1900;
Ralph Byrne and Mrs. Ralph Byrne, also by mesne conveyances from said George W. Allen, 20 miner's inches in Mahogany Creek with priority of May 26, 1900;
Golden R. Wood, Mrs. George E. Wood and the other Wood defendants herein, 160 miner's inches in said Mahogany Creek with priority of June 1, 1893, being a portion of the waters of said creek so decreed to one Samuel L. Wood."
In addition to the above rights, the following rights were acquired to the "high waters" of Mahogany Creek:
Demurrer to the complaint was overruled. Cross-complaint by the several defendants, praying for adjudication of their rights under the Snake River Decree, was filed. The cause was tried to the court, without a jury. Nonsuit was granted as to plaintiff, Eleanore Patterson.
The court found, among other things, as follows:
From the foregoing findings, the court concluded, inter alia:
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