Conant v. Jones

• Decision Date: 08 February 1893
• Citation: 3 Idaho 606,32 P. 250
• Parties: CONANT ET AL. v. B. F. JONES
• Court: Idaho Supreme Court

32 P. 250

3 Idaho 606

CONANT ET AL. v. B. F. JONES

Supreme Court of Idaho

February 8, 1893

PRACTICE-WAIVER.-When cross-complaint is not answered, and defendant proceeds to trial as though answer had been filed, he thereby waives answer.

DIVERSION OF WATER FOR IRRIGATION-TIME OF APPLICATION TO BENEFICIAL USE.-Appropriators of water for irrigation purposes, after conducting water to point of intended use, have a reasonable time in which to apply it to the use intended. They may add to the acreage of cultivated land from year to year and make applica- tion of water thereto for irrigation as their necessities demand or as their abilities may permit until they have put to a beneficial use the entire amount of water at first diverted by them; provided, that that amount is needed for the reasonable irrigation of the land.

FINDINGS.-Findings sufficient to sustain judgment.

(Syllabus by the court.)

APPEAL from District Court, Cassia County.

Judgment affirmed with costs in favor of respondent.

Stewart & Dietrich and Charles Cobb, for Appellants.

The law does not warrant the court in measuring appropriation of water by capacity of ditch made to conduct it, as seems to have been done here. (Farmers' etc. Reservoir Co. v Southworth, 13 Colo. 111, 21 P. 1028; Ft. Morgan Land etc. Co. v. South Platte Ditch Co., 18 Colo. 1, 36 Am. St. Rep. 259, 30 P. 1032.) The true measure is application to a beneficial use. (Hindman v. Rizor, 21 Or. 112, 27 P. 13; Wheeler v. Northern Colo. Irr. Co., 10 Colo. 587, 3 Am. St. Rep. 603, 17 P. 487.) We know the reluctance of an appellate court to weigh conflicting testimony, but we insist the plaintiff in a civil action has a right to the benefit of what he has proved by clear preponderance of evidence, and Jones' knowledge and full acquiescence in that settlement is so proved, and by it he is estopped to claim aught inconsistent with it. (Pomeroy's Equity Jurisprudence, 11, 818.)

Hawley & Reeves, for Respondent.

Section 4188 of the code provides that the parties affected by a cross-complaint may answer or demur thereto. The supreme court of California, in passing upon a statute similar in all respects to section 4188, declares that all matters stated in the cross-complaint, if not denied, are taken as confessed. (Herold v. Smith, 34 Cal. 123.) Where there is a substantial conflict in the evidence it will not be reviewed on appeal, but the verdict or findings are conclusive. (Mootry v. Hawley, 1 Idaho, 513; Payne v. Jacobs, 1 Cal. 39; Beckman v. Wilson, 61 Cal. 335; Thiele v. Kaster, 63 Cal. 241; Stockman v. Riverside etc. Irr. Co., 64 Cal. 57, 28 P. 116; People v. Forsythe, 65 Cal. 101, 3 P. 402; Lowden v. Frey, 67 Cal. 474, 8 P. 31.) Where one holding a possessory right to public land appropriates water for the purpose of irrigating it, such water right becomes a part of the improvements. (Hindman v. Rizor, 21 Or. 112, 27 P. 13.) The water right as an appurtenant to possessory rights in public lands passes on a sale of such possessory rights in the land. (Geddis v. Parrish, 1 Wash. 587, 21 P. 314.) The conveyance of land with its appurtenances conveys also the interest of the grantors in a ditch and water right which is necessary to the cultivation of the land. (Tucker v. Jones, 8 Mont. 225, 19 P. 571; Cave v. Crafts, 53 Cal. 138; Framer v. Ukiah Water Co., 56 Cal. 11.) A party who has entered upon public land, to acquire the title from the government, must show his good faith by diligently complying with the requirements of the law under which he expects to acquire title. (McLaughlin v. Menotti, 89 Cal. 354, 364, 365, 26 P. 880; Mott v. Hawthron, 17 Cal. 58; Western Pac. R. R. Co. v. Teris, 41 Cal. 494; Kitts v. Austin, 83 Cal. 167, 23 P. 290.) Appropriation would not date back from the time when some squatter before them used water upon the same land, but must date from their own appropriation. (Smith v. O'Hara, 43 Cal. 371; Chiatovich v. Davis, 17 Nev. 133, 28 P. 239; Pomeroy on Water Rights, sec. 58.)

OPINION

By the COURT.

This is an appeal from an order overruling a motion for a new trial and from the judgment. The matter in controversy is the right to the use of the water of Black Pine creek, Oneida county. The appellants allege appropriation of all of the water of said creek in 1880, by their grantors and predecessors in interest. Respondent denied the allegations of appropriation, and by way of counterclaim or cross-complaint claims all of the water of said creek by appropriation made in May, 1884. The court without a jury tried the cause, and rendered judgment in favor of the respondent who was defendant in the court below.

There was no denial of the allegations of the cross-complaint, and counsel for respondent contend that for that reason said allegations are admitted, and that the court would have been justified in finding said allegations true, regardless of the proof. The record fails to show that respondent moved for judgment on his cross-complaint, but it does show that he went to trial and introduced his proofs for the purpose of establishing the allegations of his cross-complaint. We think that respondent waived an answer by going to trial without objection, the same as though an answer had been filed, and that he is estopped from claiming now that he is entitled to a judgment on the pleadings.

In Bliss on Code Pleading, section 397, it is said: "The defendant may waive a reply and if he shall go to trial as though a reply, by way of traverse, were in, he shall be deemed to have waived it, or it will be considered as having been filed." The question has been raised as to whether that part of the answer called a cross-complaint is in fact a cross-complaint, or merely a counterclaim, but in our view of the case it is not necessary for us to determine that question. If it is a counterclaim its denial is not necessary, and if a cross-complaint, an answer thereto has been waived. The appellants allege appropriation by their grantors and predecessors in interest of all the water of Black Pine creek in January, 1880, for the irrigation of the land described in the complaint. There is not a particle of evidence in the record even tending to prove said allegations, or that they are entitled to any of the water of said creek for any purpose prior to 1888.

A stipulation purporting to have been made by Jason Wells and J. S. Houtz on November 11, 1885, whereby Wells agreed that Houtz should have the free use of one-third of the water of the aforesaid creek was put in evidence, and A. Heed was sworn as a witness on behalf of appellants and testified that respondent was present when said stipulation was made and consented to it, but respondent denies that he had anything to do with the making of said stipulation, or that he ever consented to the making of the same. Appellants thereafter introduce in evidence a deed of conveyance from George J. Wells to John S. Houtz conveying the following described property, to wit: "All improvements situate on a possessory claim as more fully appears in 'Book A' of Possessory Claims, page 468, also a certain water right in Black Pine creek, Oneida county, Idaho." And also a deed from John S. Houtz and wife to the appellants conveying the following described property, to wit: "All improvements situate on a possessory claim as more fully appears in Book A of Possessory Claims of said Oneida county at page 468. Also a certain water right in Black Pine creek in said county of Oneida now and heretofore used in connection with said possessory claim." The stipulation and two deeds mentioned were all of the written evidence introduced. The possessory claim record referred to in said deed was not put in evidence.

Conant, one of the appellants, testified on their behalf that he first became acquainted with Black Pine creek in 1886, and that they bought Houtz and Riche out and afterward bought Houtz' interest in said stream and his inclosure. That they took a deed of all the property so purchased including the water. Gillispee, a witness on behalf of the appellants, testified that he first became acquainted with said creek in 1885, and gave no testimony as to the date of the location or appropriation of any of the water thereof. The foregoing is substantially all of the evidence introduced by appellants in support of the allegations of the complaint.

It is evident therefrom that they claim through deed from Houtz and Houtz' claim is based on the stipulation and deed from Wells. Both deeds recite as a foundation of their rights the possessory claim...