Chill v. Jarvis, 5624

• Decision Date: 16 April 1931
• Docket Number: 5624
• Citation: 50 Idaho 531,298 P. 373
• Parties: ARTHUR L. CHILL, Appellant, v. SAMUEL M. JARVIS, ELLEN F. JARVIS, His Wife, PETTERS AND COMPANY, a Corporation, and LEMHI COUNTY, IDAHO, Respondents, v. IDA E. LING, Intervenor and Respondent
• Court: Idaho Supreme Court

298 P. 373

50 Idaho 531

ARTHUR L. CHILL, Appellant, v. SAMUEL M. JARVIS, ELLEN F. JARVIS, His Wife, PETTERS AND COMPANY, a Corporation, and LEMHI COUNTY, IDAHO, Respondents, v. IDA E. LING, Intervenor and Respondent

No. 5624

Supreme Court of Idaho

April 16, 1931

WATER AND WATERCOURSES-PRESCRIPTIVE RIGHTS-ABANDONMENT.

1. Evidence held to show that use of water by plaintiff claiming water right by prescription was not invasion of rights of persons in whom title to water right was vested.

2. Evidence held to show abandonment of water right by defendants in action to establish prescriptive title to water right and quiet title thereto (C. S., sec. 5582, as amended by Laws 1921, chap. 146).

3. Abandonment of water right is complete when intention to abandon and relinquishment of possession unite (C. S., sec 5582, as amended by Laws 1921, chap. 146).

4. Abandonment of water right began when owners ceased to apply water to beneficial use, and having failed to so apply it for five years, water right reverted to state (C. S., sec. 5582 as amended by Laws 1921, chap. 146).

5. Finding as to prescriptive title to water right held sufficient (C. S., sec. 5582, as amended by Laws 1921, chap 146).

6. Finding defendants failed to apply water to beneficial use negatived issue as to plaintiff's prescriptive title, and was therefore responsive to pleadings (C. S., sec. 5582, as amended by Laws 1921, chap. 146).

APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. Ralph W. Adair, Judge.

Suit to establish prescriptive title to water right and quiet title thereto. Plaintiff appeals from decree denying the same. Affirmed.

Decree affirmed. Costs to respondent.

E. H Casterlin, for Appellant.

One who claims a right by prescription must use the water continuously, uninterruptedly and adversely for a period of at least five years, after which time the law will conclusively presume an antecedent grant to him of his asserted right. (Smith v. Hawkins, 110 Cal. 122, 42 P. 453; Faulkner v. Rondoni, 104 Cal. 140, 37 P. 883; American Co. v. Bradford, 27 Cal. 361; Union Water Co. v. Crary, 25 Cal. 504, 85 Am. Dec. 145; Alper v. Tormey, 7 Cal.App. 8, 93 P. 402; Koon v. Empey, 40 Idaho 6, 231 P. 1097; 25 Cal. Jur., p. 1150, par. 165.)

"While . . . . a water right cannot be abandoned in favor of any particular person, it may be abandoned and thereby lost by the acquiescence of the appropriator or owner in the adverse use thereof by another, continued uninterruptedly and notoriously for the statutory period." (2 Kinney on Water Rights, 2d ed., p. 2004, sec. 1112; Davis v. Gale, 32 Cal. 26, 91 Am. Dec. 554; New Mercer Ditch Co. v. Armstrong, 21 Colo. 357, 40 P. 989; Kieler v. McDonald, 37 Idaho 573, 218 P. 365.)

Permissive use cannot ripen into title. (Davis v. Devanney, 7 Idaho 742, 65 P. 500; Hall v. Blackman, 8 Idaho 272, 68 P. 19.)

E. W. Whitcomb, and Francis R. Hall, Jr., for Intervenor and Respondent.

No right by adverse use can result from use below that of another user, having an earlier priority. There must be an actual invasion of the rights of the upper user. (Wiel on Water Rights, 2d ed., p. 380, notes, 215-217, p. 518, notes, 21-23.)

"In order to constitute a right by prescription there must have been such an invasion of the rights of the party against whom it is claimed that he would have had ground of action against the intruder." (Kinney on Irrigation, p. 414.)

To the same effect is the case of Wimer v. Simmons, 27 Ore. 1, 50 Am. St. 685, 697, 39 P. 6.

It would appear that from the very moment that Jarvis ceased to use the water, the period of five years commenced to run, which would result in statutory abandonment and necessarily the title to the water would first revert to the state at the expiration of five years, after which it would again be subject to appropriation and use by another, and such use would be based wholly upon a law of appropriation and not upon adverse use.

There can be no adverse use against the United States or the state of Idaho. (Mathews v. Ferrea, 45 Cal. 51; Wilkins v. McCue, 46 Cal. 656; Van Sickle v. Haines, 7 Nev. 249; Wattier v. Miller, 11 Ore. 329, 8 P. 354; Wiel on Water Rights, 2d ed., p. 582, sec. 252.)

VARIAN, J. Lee, C. J., and Budge, Givens and McNaughton, JJ., concur.

OPINION

VARIAN, J.

This action relates to the use of the waters of Zeph Creek and its tributary, Schwartz Creek, situate in Lemhi County, Idaho. Zeph Creek flows into the Lemhi River below plaintiff Chill's ranch. The Jarvis ranch is situate about half a mile above the Chill place and Schwartz Creek flows into Zeph Creek on the Jarvis ranch. The Ling (intervenor) ranch is above the Jarvis place on Schwartz Creek. Appellant in the amended complaint of his first cause of action claims a prescriptive right to 80 inches of the waters of Zeph and Schwartz Creeks with priority of June 1, 1897, alleging use thereof since about the first day of April, 1922; also, in a second cause of action, a right to use 75 inches of the waters of said creeks with a priority of April 1, 1918. The defendants, Jarvis and wife and Lemhi County defaulted; the defendant, Petters & Company, answered, setting up a mortgage upon the Jarvis ranch. The answer of intervenor, Ida E. Ling, sets up a claim to two cubic feet of the waters of Schwartz Creek with a priority of July 1, 1915. The parties stipulated before trial that plaintiff Chill and intervenor Ling might each be decreed 3.2 cubic feet per second of time of the flood waters of Zeph and Schwartz Creeks, as to Chill, and of Schwartz Creek only as to Ling, with priority of April 1, 1919.

The court found the duty of water to be one inch, or one-fiftieth of one cubic foot per second of time, per acre; that plaintiff Chill appropriated 1.2 cubic feet, as of April 1, 1918; that the defendants, Jarvis and Petters & Company, have failed to use any of the waters of Zeph and Schwartz Creeks for more than five years prior to the commencement of this action; that intervenor Ling and her predecessors in interest have appropriated 1.46 cubic feet of the waters of Schwartz Creek with priority as of July 1, 1915; that plaintiff Chill is entitled to 3.2 cubic feet of high and flood waters of Zeph and Schwartz Creeks with priority as of April 1, 1919, and intervenor Ling is entitled to 3.2 cubic feet of the flood and high waters of Schwartz Creek with priority as of April 1, 1919. All of said amounts were decreed accordingly and Jarvis and wife and Petters & Company were decreed to have no interest in the waters of either of said creeks. Plaintiff appeals from the decree so rendered.

In another suit under date of June 26, 1913, the waters of Zeph and Schwartz Creeks were adjudicated and there was decreed to predecessors in interest of Jarvis and wife, 1.6 cubic feet per second of time, of the waters of said creeks with priority dating June 1, 1897.

It is the theory of appellant that he has acquired, by prescription, the water right belonging to Jarvis and wife through five years adverse possession with the same priority decreed to Jarvis' predecessors, to wit: June 1, 1897.

The court found that Jarvis and wife and the mortgagee, Petters &amp Company, a corporation, "have failed to use and apply to a beneficial use any of the waters of said Zeph and Schwartz Creeks, for a period of more than five years prior to the commencement of plaintiff's complaint." This language follows the verbiage of our abandonment statute which reads, so far as applicable here, as follows: "Section 5582. All rights to use of water acquired under this chapter or otherwise 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, and when any right to the use of water shall be lost through nonuse or abandonment such rights to such water shall revert to the state and be again subject to...