Daly v. Josslyn

• Decision Date: 27 May 1901
• Parties: DALY v. JOSSLYN
• Court: Idaho Supreme Court

65 P. 442

7 Idaho 657

DALY v. JOSSLYN

Supreme Court of Idaho

May 27, 1901

CONTRACT-SPECIFIC PERFORMANCE-PERSONAL OBLIGATION.-A contract agreeing that the claimants to the water of a certain stream should own and use them equally, one-third each, and that a party thereto violating the same should pay the party injured the sum of $1,000, one of the parties sold the land to which his water right was appurtenant, to J., who did not assume the obligations of said contract. Held, that specific performance of said contract could not be decreed.

SPECIAL FINDINGS IN EQUITY CASE-INSTRUCTIONS TO THE JURY-REVIEW ON APPEAL.-Where special findings are submitted to a jury, under instructions of the court, in an equity case, the correctness of such instructions will not be reviewed upon appeal. Affirming Kelly v. Perrault, 5 Idaho 221, 48 P. 45, affirmed.

EVIDENCE-DECLARATIONS OF OWNER IN POSSESSION.-Declarations made by the owner, while in possession, adversely to his title is admissible in evidence against himself, and those claiming under him.

(Syllabus by the court.)

APPEAL from District Court, Blaine County.

Cause remanded, with instructions. Decree affirmed.

Lyttleton Price, for Appellant.

The finding of the trial court is that he, Kimbrough, had only constructive notice by the record. That being a purchaser in good faith, for value, without notice of the contract, he is not bound by its terms. This raises at once the question of the nature of the contract and whether its record gave constructive notice of its contents. Constructive notice of the contents of recorded instruments is purely a creature of the statute. (Rev. Stats. sec. 3000.) This is in form an equitable action. Applying the rule in equity to the facts here, the action is barred. There was always an active acquiescence in the use of the water by Kimbrough as far as Goble was concerned. He knew Kimbrough was using it. He did not deny his right to use it. He asked several times, as a favor, that it be turned down to him. He bought and in other ways secured water from other sources; and he even rented the Galbraith land to secure what water might otherwise have been taken upon it for the avowed purpose of getting it for use on the Goble land. When asked at the trial why he did so, and why he did not demand his right to the third of Seaman's creek, here claimed by him, he does not answer the question. Here was an executory contract stipulating that a certain thing should be done by all the parties to it. It undoubtedly contemplated that it should be done soon. It was not the duty of any one of the parties to do it; neither one was under any obligation to the others to put it into effect. The evidence established full acquiescence. It further establishes laches in asserting any rights under the agreement. (Peters v Delaplaine, 49 N.Y. 362; Wood on Limitations, 157, 163; Fletcher v. Peck, 6 Cranch, 136.) Section 2023 of the Revised Statutes of Idaho provides what instruments may be recorded. It omits executory contracts. The record of an executory contract does not impart notice of its contents. (Wade on Law of Notice, sec. 122; Messic v Sunderland, 6 Cal. 297; Washburn v. Burnham, 63 N.Y 135.)

R. F Buller and E. F. Ensign, for Respondents.

Where the transcript does not contain all of the evidence introduced at the trial in an equity case the appellate court will not resolve itself into a trial court and review the evidence. This seems to be a well-settled rule of equity practice which prevails in all of the states as well as in England. (Ragains v. Geiser, 10 Okla. 544, 63 P. 687; Riborado v. Quang Pang Min. Co., 2 Idaho 144, 6 P. 125; Cochrane v. Bussche, 7 Utah 233, 26 P. 294; Enos v. Wilcox, 3 Wash. 44, 28 P. 364; M. K. & T. R. R. Co. v. Williamson, 58 Kan. 814, 49 P. 157; Hardwick v. Rutter, 5 Kan. App. 692, 49 P. 98; Territory v. Roberts, 9 Mont. 12, 22 P. 132; Roy v. Union Merc. Co., 3 Wyo. 417, 26 P. 996.) Where the bill of exceptions contains no specification of the particulars wherein a finding is not justified by the evidence, the finding must be deemed conclusive. (Hurlburt v. Spaulding, 93 Cal. 55, 28 P. 795; Hartman v. Rogers, 69 Cal. 643, 11 P. 581; City v. Pacific Bk., 89 Cal. 23, 26 P. 615, 835; Bass v. Buker, 6 Mont. 442, 12 P. 722; Idaho Rev. Stats., sec. 4441, subd. 4.) A written agreement as to a water right, acknowledged and recorded, is valid against all the world, and even a parol agreement partly performed gives a right to specific performance in favor of any grantee of the land intended to be irrigated by such water. (Idaho Rev. Stats., secs. 2024, 2825, 2990, 3000-3002; Stowell v. Tucker, ante, p. 312, 62 P. 1033; Pallette v. Murphy, 131 Cal. 192, 63 P. 366-367; Male v. Leflang, ante, p. 348, 63 P. 108.) In order to establish title by limitation, open, notorious, continued, uninterrupted, hostile, adverse possession for the statutory period must be shown. (Hurd v. McClellan, 1 Colo. App. 327, 29 P. 181; Wimer v. Simmons, 27 Ore. 1, 39 P. 6, 50 Am. St. Rep. 685, and cases cited; Bath v. Valdez (Cal.), 7 P. 487; In re Grider, 81 Cal. 571, 22 P. 908; Kerns v. Dean, 77 Cal. 555, 19 P. 817; Rix v. Horstman, 93 Cal. 503, 29 P. 120.) Any interruption of adverse user, however slight, will prevent the acquisition of title by prescription. (Bree v. Wheeler, 129 Cal. 145, 61 P. 782; American Co. v. Bradford, 27 Cal. 368.) Specific performance is often decreed after a lapse of time much greater than the period of the statutes of limitations. Thus in Taylor v. Longworth, 14 Pet. 172, a decree was granted after thirteen years. In Cleaver v. Taylor, 98 F. 900, after eight years. See, also, Gunton v. Carroll, 101 U.S. 426; Cheney v. Libby, 134 U.S. 68, 10 S.Ct. 498.) There was no fraud upon Josslyn. There were the headgates and the open ditches on the Galbraith and Goble ranches. They were being used and their mere existence was sufficient to put him upon inquiry as to their owners' rights to the waters of the creek. (Cooper v. Thomason, 30 Ore. 161, 45 P. 296; Neponset v. Dixon, 10 Utah 334, 37 P. 573.)

QUARLES, C. J. Sullivan, J., concurs. Stockslager, J., did not sit at the hearing, and took no part in the decision of this case.

OPINION

QUARLES, C. J.

This action was commenced by the respondents, as plaintiffs, to obtain a decree for the specific enforcement of a contract or agreement made and entered into by and among three different parties, viz., Simpson Goble, Asa M. Kimbrough, and Jennie B. Galbraith, on the seventeenth day of December, 1891, for the purpose of compromising and settling litigation among themselves then pending to settle the rights of said parties in and to the waters of that certain stream in what is now Blaine county, known as "Seaman's Creek." In said agreement it was agreed that the waters of said creek should be equally divided among said three parties, with the exception of one hundred and fifty inches therein agreed to belong to the city of Bellevue, and that said parties should place a box or flume, with division boards inserted therein, in said creek, as near as practicable to the head of the ditches then and theretofore used by said Kimbrough. It was also agreed in said agreement, which was in writing, that each of said parties should be bound in the penal sum of $ 1,000 for the faithful performance of said agreement, which sum might be recovered, by the party injured, against the party or parties violating said agreement. This agreement, while signed by each of said parties named, does not appear to have been acknowledged in the manner required by the statute for the acknowledgment and certification thereof of deeds of conveyance, yet the same appears to have been recorded in the recorder's office of said county. Afterward the appellant, Josslyn, in 1898 purchased the lands of said Kimbrough from him, and has occupied the same from that time, and has claimed and now claims the right to use all the water in said Seaman's creek, without any regard whatever to the rights of the other claimants. It also appears from the record that the respondent, R. F. Buller, by purchase under a decretal sale under a decree foreclosing a mortgage, has succeeded to the rights of the said Goble in and to the lands occupied by him at the date of said agreement, and by him watered and irrigated with water from said Seaman's creek. It also appears from the record that the respondent Daly has succeeded by purchase, since the date of said agreement, to the lands occupied by said Galbraith, and by her watered and irrigated with water from said Seaman's creek. It is contended on behalf of the appellant, Josslyn, that said agreement is not binding upon him; that he purchased without actual notice thereof; that the recordation of said agreement did not, under the circumstances, give him constructive notice of said agreement. Said appellant also claims to have obtained the right to use all of said waters by adverse user, and claims to have obtained the right to do so by prescription.

A careful study of the record shows that Kimbrough, the predecessor in interest of appellant, never claimed more than one-third of the waters of said stream adversely, as against the respondents, Buller and Daly, and their predecessors in interest, said Goble and Galbraith. Appellant has, however, claimed said waters adversely to the respondents since June, 1898, and has largely, if not wholly, deprived respondents of the use of said waters. There is no merit in appellant's contention that he has obtained the right to the use of said waters by prescription or adverse user under our statutes, and his plea of the statute of limitations must fall.

We are of the opinion that respondents were not entitled to a decree of specific performance of the contract above...