Chill v. Jarvis, 5624

CourtUnited States State Supreme Court of Idaho
Writing for the CourtVARIAN, J.
Citation50 Idaho 531,298 P. 373
Docket Number5624
Decision Date16 April 1931
PartiesARTHUR 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

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).

[50 Idaho 532]

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

[50 Idaho 533] 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...

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10 practice notes
  • Gilbert v. Smith, No. 11949
    • United States
    • United States State Supreme Court of Idaho
    • August 5, 1976
    ...v. McCammon Ditch Co., 41 Idaho 216, 240 P. 443 (1925); St. John Irr. Co. v. Danforth, 50 Idaho 513, 298 P. 365 (1931); Chill v. Jarvis, 50 Idaho 531, 298 P. 373 (1931); Smith Land Co. v. Furhiman, D.C.Idaho, 36 F.Supp. 667 (1941). Such intent may be evidenced by non-use for a substantial p......
  • Condie v. Swainston, 6785
    • United States
    • United States State Supreme Court of Idaho
    • October 24, 1940
    ...and be again subject to appropriation under this chapter. * * *" First Security Bank v. State, 49 Idaho 740, 291 P. 1064; Chill v. Jarvis, 50 Idaho 531, 298 P. 373.) Abandonment may occur through nonuse of the right or failure to keep in repair ditches and flumes. (Joyce v. Murphy Land etc.......
  • Hillcrest Irrigation District v. Nampa & Meridian Irrigation District, 6285
    • United States
    • United States State Supreme Court of Idaho
    • February 24, 1937
    ...and where he fails to so apply it within five years it reverts to the state and again becomes subject to appropriation. (Chill v. Jarvis, 50 Idaho 531, 298 P. 373; sec. 41-216, I. C. A.) "The doctrine of laches rests not alone upon the lapse of time but upon the inequity of permitting the c......
  • Federal Land Bank of Spokane v. Union Central Life Ins. Co., 5672
    • United States
    • United States State Supreme Court of Idaho
    • December 22, 1931
    ...appurtenance to the one to which it is so transferred; this right of transfer being one of the incidents of ownership. (Chill v. Jarvis, 50 Idaho 531, 298 P. 373; First Security Bank v. State, 49 Idaho 740, 291 P. 1064; In re Johnson, 50 Idaho 573, 300 P. 492.) Purchasers or incumbrancers a......
  • Request a trial to view additional results
10 cases
  • Gilbert v. Smith, No. 11949
    • United States
    • United States State Supreme Court of Idaho
    • August 5, 1976
    ...v. McCammon Ditch Co., 41 Idaho 216, 240 P. 443 (1925); St. John Irr. Co. v. Danforth, 50 Idaho 513, 298 P. 365 (1931); Chill v. Jarvis, 50 Idaho 531, 298 P. 373 (1931); Smith Land Co. v. Furhiman, D.C.Idaho, 36 F.Supp. 667 (1941). Such intent may be evidenced by non-use for a substantial p......
  • Condie v. Swainston, 6785
    • United States
    • United States State Supreme Court of Idaho
    • October 24, 1940
    ...and be again subject to appropriation under this chapter. * * *" First Security Bank v. State, 49 Idaho 740, 291 P. 1064; Chill v. Jarvis, 50 Idaho 531, 298 P. 373.) Abandonment may occur through nonuse of the right or failure to keep in repair ditches and flumes. (Joyce v. Murphy Land etc.......
  • Hillcrest Irrigation District v. Nampa & Meridian Irrigation District, 6285
    • United States
    • United States State Supreme Court of Idaho
    • February 24, 1937
    ...and where he fails to so apply it within five years it reverts to the state and again becomes subject to appropriation. (Chill v. Jarvis, 50 Idaho 531, 298 P. 373; sec. 41-216, I. C. A.) "The doctrine of laches rests not alone upon the lapse of time but upon the inequity of permitting the c......
  • Federal Land Bank of Spokane v. Union Central Life Ins. Co., 5672
    • United States
    • United States State Supreme Court of Idaho
    • December 22, 1931
    ...appurtenance to the one to which it is so transferred; this right of transfer being one of the incidents of ownership. (Chill v. Jarvis, 50 Idaho 531, 298 P. 373; First Security Bank v. State, 49 Idaho 740, 291 P. 1064; In re Johnson, 50 Idaho 573, 300 P. 492.) Purchasers or incumbrancers a......
  • Request a trial to view additional results

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