Farmers' Cooperative Irrigation Co., Ltd. v. Alsager
| Decision Date | 30 April 1929 |
| Docket Number | 5134 |
| Citation | 47 Idaho 555,277 P. 430 |
| Court | Idaho Supreme Court |
| Parties | FARMERS' COOPERATIVE IRRIGATION COMPANY, LIMITED, a Corporation, Appellant, v. L. L. ALSAGER, M. M. CHRISTENSEN, ALLEN GATFIELD, THOMAS J. COONROD, HOWARD HARPER, WALTER LARKIN, FRED WEST, ANDREW SORENSEN, CHARLES GAYFORD and EARL FRUIT COMPANY, a Corporation, Respondents |
ADVERSE POSSESSION-PERMISSIVE USE-PRESCRIPTIVE RIGHT-INJUNCTION.
1. A use that is permissive in its inception does not ripen into an adverse use giving rise to a prescriptive right until something is done to bring notice to the owner that the character of the use has changed.
2. Adverse use by disposal of waste water into irrigation canal continuing under a claim of right for only a single irrigation season prior to commencement of action to restrain such wasting of water, was insufficient to give an easement by prescription.
3. Irrigation company was entitled to enjoin the disposal of waste waters into canal regardless of damage, in that allowing such disposal of waste waters under claim of right would eventually burden right of way with an easement.
APPEAL from the District Court of the Seventh Judicial District, for Gem County. Hon. Henry F. Ensign, Judge.
Action for an injunction to restrain the wasting of water. Decree for defendants. Reversed.
Decree reversed with instructions. Costs awarded to appellant.
Freehafer & McClure, for Appellant.
A right by permission can never ripen into an adverse right by prescription, however long continued. (Kirk v. Smith, 9 Wheat. (U.S.) 241, 6 L.Ed. 81, opinion by Chief Justice Marshall, in which Henry Clay and Daniel Webster made argument, at page 286 Chief Justice Marshall said: "It would shock that sense of right which must be felt equally by legislators and by judges, if a possession which was permissive, and entirely consistent with the title of another, should silently bar that title."
This case is quoted with approval in District of Columbia v Robinson, 180 U.S. 92, 21 S.Ct. 283, 45 L.Ed. 440, in which the court says: "Mere use of land for a public highway is not sufficient to constitute the road a highway unless the use is adverse to the owner of the fee, and not permissive."
Finley Monroe, for Respondents.
"The use of an easement constitutes a direct invasion of the dominion of the proprietor of the land, and the statute forbids maintenance of an action to prevent such use as has been enjoyed openly, continuously, adversely and with the acquiescence of the owner for a period of five years or more." (Last Chance Ditch Co. v. Sawyer, 35 Idaho 66, 204 P. 654.)
Chas M. Kahn, for Respondent Earl Fruit Co.
Reasonable grounds for apprehending an actual injury or a reasonable probability of injury must be shown before an injunction will be granted. (Boise Development Co. v. Idaho Trust & Sav. Bank, Ltd., 24 Idaho 36, 133 P. 916.)
The Farmers' Cooperative Irrigation Company owns and operates a main canal known as the Farmers' Canal distributing water from the Payette River to many hundreds of users. The lands of the defendants lie along a lateral taking its water from another canal. This lateral runs roughly at a right angle to the Farmers' Canal and crosses it below Emmett. Prior to 1904 this crossing was accomplished by means of a syphon. In 1904 a wooden flume was built; this was replaced about 1910 by another wooden flume and in 1924 by a concrete flume.
When the first wooden flume was constructed, at the request of some of the defendants the officials of the Farmers' Canal who were in charge of the construction of this flume and others along its right of way, agreed to leave an opening in the flume to permit the excess waste water in the lateral to run into the canal. This same permission was granted when the wooden flume was rebuilt.
In 1923 a serious break occurred in the Farmers' Canal and thereafter it was determined by the officials in charge to forbid the wasting of water into the canal from the various laterals which crossed its right of way.
When the concrete flume was constructed in 1924, permission was again sought to have an opening left in it but such request was refused.
In 1925 the officials of the Farmers' Company were vigilant in preventing the wastage of any water into their canal. In 1926, however, some of the defendants made an opening from their lateral into the canal in such a way as again to dispose of their waste waters. This was closed up by employees of the ditch company and immediately reopened by some of the defendants. This occurred several times during the 1926 irrigation season.
In October, 1926, plaintiff company commenced this action asking that defendants be restrained from causing or permitting any of their irrigation waters to be conveyed on or into the right of way or canal of plaintiff. Defendants contend that they have acquired a right by prescription so to dispose of their waste waters.
The trial court found that the wasting of water in substantially the same amount had continued for more than five consecutive years immediately preceding the commencement of this action, and that such use had been with the knowledge and acquiescence of the plaintiff and had been continuous, uninterrupted, adverse, open and notorious. The court held that an easement had been acquired by prescription, and denied the injunction.
We do not believe that the evidence, which is substantially without conflict, sustains the findings of the trial court. The evidence shows that the permissive use which commenced in 1904 continued as such until the construction of the concrete flume in 1924. The rule is well established that a use that is permissive in its inception does not ripen into an adverse use, giving rise to a prescriptive right, until something is done to bring notice to the owner that the character of the use has changed. ...
To continue reading
Request your trial
-
Taylor v. O'Connell
...years is not necessarily an easement and does not give title to the ditch right of way. (See Bower v. Kollmeyer, supra; Farmers' Cooperative Irr. Co. v. Alsager, supra; McReynolds v. Harrigfeld, supra; McKinnon v. Black Pine Co., supra; Howes v. Barmon, 11 Idaho 64, 114 Am. St. 255, 81 P. 4......
-
Fajen v. Powlus
...would not have supported a claim for adverse possession or prescriptive easement. Farmers' Co-operative Irrigation Co., Ltd. v. Alsager, 47 Idaho 555, 277 P. 430 (1929). Less than five years of time had elapsed between the Powluses' contract of purchase on January 30, 1969, and Fajen's brin......
-
Robertson v. Swayne
...was allowed by the trustee to remain in possession and to manage and control the trust property. This Court in Farmers' Cooperative Irr. Co. v. Alsager, 47 Idaho 555, 277 P. 430 said: 'a use that is permissive in its inception does not ripen into an adverse use * * * until something is done......