Childs v. Sharai

• Decision Date: 23 May 1902
• Citation: 69 P. 111,8 Idaho 378
• Parties: CHILDS v. SHARAI
• Court: Idaho Supreme Court

69 P. 111

8 Idaho 378

CHILDS v. SHARAI

Supreme Court of Idaho

May 23, 1902

RIGHT OF WAY FOR DITCH-SETTLER ON PUBLIC LAND.-Where a citizen settles upon a part of the unsurveyed public land of the United States, and has peaceable possession thereof, and constructs a ditch across the same, he secures the right of way therefor, although such land, when surveyed, is found to be within the grant to the Northern Pacific Railroad Company.

TITLE TO RIGHT OF WAY.-The purchaser of land from a railway company does not thereby acquire title to a ditch which was constructed prior to the survey of such land.

(Syllabus by the court.)

APPEAL from District Court, Kootenai County.

Reversed and remanded. Costs awarded to appellant.

Charles E. Heitman, for Appellant.

The right to sue upon a claim based upon statutory provisions which constitute title must be affirmatively shown by the party relying on it, and must show all the steps taken in perfecting such title, and every material fact must be pleaded as well as proven. (Wright v. Whitesides, 15 Cal. 47; Sweetland v. Froe, 6 Cal. 144; Hicks v Whiteside, 23 Cal. 405.) "One deraigning title to property through a corporation must prove the legal existence of the corporation. The recitals in deeds that the grantor was a corporation do not prove such corporate existence as against one claiming the property through another source of title." (Sonoma County Water Co. v. Lunch, 50 Cal. 503.) The evidence of five witnesses are against the finding that defendant did not use the ditch since 1898, and that he had abandoned all right or title thereto, while one witness only--the plaintiff-testified that the defendant had not used it since 1898, and plaintiff testified that defendant worked on and claimed the ditch in 1901. The burden is on plaintiff to show abandonment. (Beaver etc. Canal Co. v. Reservoir Co., 6 Colo. App. 130, 40 P. 1066; Utt v. Frey, 106 Cal. 392, 39 P. 807.) There is no proof in the case at bar that plaintiff ever used the water by virtue of his alleged water right through the ditch in question. He claims in his notice of location of water right to intend to use the water for irrigating the agricultural lands in section 35, to supply the inhabitants of the town of Hope with water for domestic purposes, and to furnish power for a mill to be erected on section 35. There is no evidence that he used the water for any of these purposes. There was no actual appropriation of the water and no use of the water right or of the ditch by the plaintiff shown in evidence. Plaintiff had not appropriated the water. (Low v Rizor, 25 Or. 551, 37 P. 82; Nevada Ditch Co. v Bennett, 30 Or. 59, 60 Am. St. Rep. 777, 45 P. 472; Fort Morgan etc. Co. v. Ditch Co., 18 Colo. 4, 36 Am. St. Rep. 259, 30 P. 1032.) In an action to quiet title the burden rests upon the plaintiff to show title in himself, and if he fails to make out a case, he is not entitled to recovery. (Winter v. McMillen, 87 Cal. 256, 22 Am. St. Rep. 243, 25 P. 407; Martin v. Lloyd, 94 Cal. 195, 29 P. 491.) In a suit to quiet title plaintiff must establish the validity of his own title, as well as the invalidity of that of his opponent. (Shelton Logging Co. v. Gosser, 26 Wash. 126, 66 P. 151.) One may own a ditch without owning a water right, and vice versa, and one may own a ditch and land independent of a water right. (Stocker v. Kirtley, 6 Idaho 795, 59 P. 891; Ada County Farmers' Irr. Co. v. Farmers' Canal Co., 5 Idaho 793, 51 P. 990; Welch v. Garrett, 5 Idaho 639, 51 P. 405; Sloan v. Glancy, 19 Mont. 70, 47 P. 334.) The defendant located his water right and constructed his ditch, and actually appropriated and used the said water right and said ditch when the land upon which the same was situated was unsurveyed public land of the United States and occupied by himself alone. (U. S. Rev. Stats., secs. 2339, 2340.) This statute has uniformly been construed in favor of one having a vested right to the use of water for mining, agricultural, manufacturing or other purposes. (Drake v. Earhart, 2 Idaho 750, 23 P. 541; Hillman v. Hardwick, 3 Idaho 255, 28 P. 438; Jones v. Adams, 19 Nev. 78, 3 Am. St. Rep. 788, 6 P. 442; Ramelli v. Irish, 96 Cal. 214, 31 P. 41; Judkins v. Elliott (Cal.), 12 P. 116; Geddis v. Parrish 1 Wash. 587, 21 P. 314; Hill v. Lenormand (Ariz.), 16 P. 266; Jacob v. Lorenz, 98 Cal. 332, 33 P. 119.) The law is now settled that where there has been an actual appropriation of water, a right to it is acquired without following the course laid down in the code. (Watterson v. Saldunbehere, 101 Cal. 107, 35 P. 432; Burrows v. Burrows, 82 Cal. 564, 23 P. 146; De Necochea v. Curtis, 80 Cal. 397, 20 P. 563, 22 P. 198; Murray v. Tingly, 20 Mont. 260, 50 P. 723; Nevada Ditch Co. v. Bennett, 30 Or. 59, 45 P. 472, 60 Am. St. Rep. 777-817, with elaborate note; Ada County Farmers' Irr. Co. v. Farmers' Canal Co., supra.) The right to divert and appropriate the unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right as between those using water. (Idaho Const., art. 15, sec. 3.)

Edwin McBee, for Respondent.

The Northern Pacific Railroad Company derived title to the same land in 1864 from the same source, and that the claim of the railroad company and the claim of the plaintiff merged when the plaintiff purchased said land and received a deed therefor from the railroad company. The defendant has never claimed adversely to the grant to the railroad company, nor could he do so successfully. (Van Wyck v. Knevals, 106 U.S. 364, 1 S.Ct. 336.) No right was acquired by the notice posted by the defendant and appellant on the 10th of September, 1895, and above referred to and under which he claims. (Barrington and Adams on Mines and Mining, c. 20, p. 637 et seq.)

SULLIVAN, J. Quarles, C. J., and Stockslager, J., concur.

OPINION

SULLIVAN, J.

This action was brought to quiet the title in respondent, who was plaintiff in the court below, to a certain water right from Strong creek, Kootenai county, and a ditch through which said water was conducted to the point of use. Said ditch extends across the east one-half of the north-east one-quarter of section 35, township 57 north, of range 1 east, Boise meridian. It is alleged in the complaint that the respondent located on the northeast one-quarter of said section 35 in the year 1890, which land was then believed to be unsurveyed public land of the United States, and filed a possessory claim on said land under the laws of the state of Idaho; that appellant in 1895 wrongfully entered upon and took possession of the east one-half of said one hundred and sixty acre tract, and proceeded to improve the same by building thereon a house and other buildings, planting an orchard and vineyard, and constructing the ditch described in the complaint upon and across said land, through which ditch he used the water of Strong creek to irrigate his said orchard and vineyard; that at the time the improvements and ditch were put on said land the appellant was claiming said land as a squatter on the public domain; that in 1897 it was ascertained that said described land was part of an odd-numbered section which had been granted by act of Congress to the Northern Pacific Railroad Company, and that neither respondent nor appellant had any legal right thereto that thereafter respondent purchased said land from the railway company, and after said purchase appellant consented to remove his improvements...