Davis v. Devanney

• Decision Date: 11 June 1901
• Citation: 7 Idaho 742,65 P. 500
• Parties: DAVIS v. DEVANNEY
• Court: Idaho Supreme Court

65 P. 500

7 Idaho 742

DAVIS v. DEVANNEY

Supreme Court of Idaho

June 11, 1901

APPEAL-JUDGMENT UNSUPPORTED BY PLEADINGS AND FINDINGS.-Upon appeal a judgment which is not supported by the pleadings and findings will be reversed.

ADVERSE USER-TITLE BY PRESCRIPTION.-A prescriptive title cannot be founded upon use and occupation, which is not adverse to the title of the owner, but which is under permission of such owner.

(Syllabus by the court.)

APPEAL from District Court, Lincoln County.

Reversed and remanded. Costs awarded to the appellants.

L. L Sullivan, for Appellants.

The parties to this action never were parties in any suit in which the right to the use of any of the said waters of Little Wood river was decreed to them, and even if the respondent was granted the right to the use of any of said water it can have no binding force whatever upon either of the said appellants, as they were not parties to the action in which such a judgment was rendered. (Stocker v Kirtley, 6 Idaho 795, 59 P. 891; 2 Black on Judgments sec. 600.) One cannot obtain a right by prescription or adverse user when occupying and having the possession of property under lease or contract of purchase. The findings of fact must support the judgment. (Kinsey v. Green, 51 Cal. 379.) The answer contains no averment of ownership. (Parke v. Boulware, ante, p. 490, 63 P. 1045.)

Guy C. Barnum, for Respondent.

The objections contained in plaintiff's brief as to the insufficiency of the answer to raise the issue of adverse use or prescriptive right is disposed of in the case of Alhambra Addition Water Co. v. Richardson, 72 Cal. 598, 14 P. 379.

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

OPINION

QUARLES, C. J.

This action was commenced by the appellants, as plaintiffs, to quiet the title claimed by them in and to a certain ditch and dam, and to obtain a perpetual injunction restraining the defendant, respondent here, from interfering with their use and occupation of said ditch and dam. The answer denies title in the appellants, and, among other things, alleges "That the defendant built and constructed said ditch and dam, and is, and has always been, the owner thereof exclusively for seven years last past; and said plaintiffs, nor either of them, nor their predecessors in interest, nor any of them, have ever had any interest in, or right or title to, said ditch or dam, but said defendant has always been the sole and exclusive owner thereof, as alleged above." The trial court found that the ditch and dam in question were constructed in the year 1886 by Charles Copeland under the employment of S. B. Calderhead; that in the year 1891 said Calderhead sold the same to the said Copeland; that from May 5, 1894, respondent used said ditch for the purpose of irrigating his lands, and had kept the same in repair; that from 1886 to the commencement of the action said Copeland, and his successors in interest, had used said dam and ditch; that the plaintiff C. W. Davis purchased the lands of said Copeland, together with his interest in and to the waters conveyed by means of said dam and ditch; that the plaintiff Thomas Marren purchased one-half of the interest of said Davis in said dam and ditch, but does not find the date of said purchase. The court then finds in the twelfth finding of fact that the defendant, James Devanney, "has used said dam and ditch for the purpose of irrigating his said lands, as aforesaid, for six (6) years last past," and that said Devanney had rebuilt and repaired said ditch and dam each and...