Federal Land Bank of Spokane v. Union Central Life Ins. Co.
| Decision Date | 22 December 1931 |
| Docket Number | 5672 |
| Citation | 51 Idaho 490,6 P.2d 486 |
| Parties | FEDERAL LAND BANK OF SPOKANE, a Corporation, Respondent, v. UNION CENTRAL LIFE INSURANCE COMPANY, a Corporation, Appellant |
| Court | Idaho Supreme Court |
WATER AND WATERCOURSES - CHANGE IN PLACE OF USE - EVIDENCE SUFFICIENCY OF-ACTION TO QUIET TITLE-BURDEN OF PROOF.
1. To have place of use of water changed, applicant must show ownership of water, or right to change, which must be determined in action for that purpose, if disputed (C. S sec. 5582).
2. Plaintiff could bring action to quiet title to water allegedly transferred from defendant's ranch to plaintiff's ranch when both were owned by same predecessor, notwithstanding predecessor never sought statutory authority to change appurtenancy (C. S., sec 5582).
3. Plaintiff suing to quiet title to water had burden of proving allegation that water was intentionally transferred from defendant's to plaintiff's ranch by predecessor who then owned both ranches.
4. General use by owner of adjoining ranches of appurtenant water cannot show abandonment of water on one ranch and permanent transfer to other.
5. Acquisition of water by nonuse on one tract of land and use on other land would require five years' of such use uninterrupted and exclusive.
6. In quiet title action, parties must recover on strength of own title.
7. Plaintiff's failure to question witness regarding material matter raised presumption that answer would have been adverse to plaintiff.
8. That mortgage transaction was fraudulent cannot be presumed.
9. In quiet title action, evidence did not show transfer of use of definite amount of water, which would support alleged transferee's claim to water.
10. Claim to water based upon transfer of use must be established by proof of transfer of definite amount.
APPEAL from the District Court of the Fourth Judicial District, for Blaine County. Hon. D. H. Sutphen, Judge.
Action to quiet title. Judgment for plaintiff. Reversed.
Reversed and remanded. Costs to appellant. Petition for modification denied.
McElroy & Chalfant and W. A. Brodhead, for Appellant.
Change of place of use or point of diversion of decreed water is administrative and governed by C. S., sec. 5582. The requirements of said section must be observed, after which the right to change the place of use of water can be judicially determined. (Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073; First Security Bank of Blackfoot v. State, 49 Idaho 740, 291 P. 1064, headnote 4; State v. Adair, 49 Idaho 271, 287 P. 950.)
"Manifestly the use must coexist with the ownership of the water right to make it appurtenant to the land." (Gause v. Pacific Gas & E. Co., 60 Cal.App. 360, 212 P. 922.)
"To make water rights appurtenant to other property there must be a unity of right and title to use in the same person." ( Utah Metal & Tunnel Co. v. Groesbeck, 62 Utah 251, 219 P. 248.)
Bissell & Bird, for Respondent.
Where one owns two ranches and openly and intentionally transfers a water right from one ranch to the other, for permanent use on the latter, immediately such water is separated from the one ranch and becomes an 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 are presumed to contract with reference to the physical condition of the property at the time of the sale or mortgage, and such persons are charged with notice of visible, physical facts existing on the premises. ( Pioneer Min. Co. v. Bannack Gold Min. Co., 60 Mont. 254, 198 P. 748, 751; note, 41 A. L. R. 1442; Morris v. Bean, 146 F. 423, 427.)
A water right may be acquired by the constitutional, as well as by the statutory, method of appropriation. (Nielson v. Parker, 19 Idaho 727, 115 P. 488, and Pioneer Irr. Dist. v. American Ditch Assn., 50 Idaho 732, 1 P.2d 196.)
Likewise the place of use of water may be changed by the owner of the land and appurtenant water, without complying with the statutory forms, if no other water right is damaged thereby. (First Security Bank v. State, supra; Joyce v. Rubin, 23 Idaho 296, 306, 130 P. 793; In re Johnson, supra; Twin Falls Canal Co. v. Shippen, 46 Idaho 787, 271 P. 578.)
In 1916, Martin Albrethsen acquired title to what is referred to as the Kingsbury ranch, including the N. 1/2NE. 1/4 sec. 8, and the E. 1/2E. 1/2 Fractional Sec. 5, Tp. 1 S., R. 19 E., B. M., to which described land a water right of 105 inches, with a priority of May 1, 1886, had been decreed by the Frost decree adjudicating the waters of Wood River, December 13, 1909. The entire Kingsbury ranch consists of about 713 acres, with a total decreed water right of about 750 inches. At the same time in 1916, Martin Albrethsen acquired the so-called Buller ranch, adjoining the Kingsbury ranch to the south, consisting of about 720 acres, with a water right awarded by the same decree to said ranch generally, of some 750 inches of water of the priority of June 12, 1886.
Martin Albrethsen did not take possession of the Kingsbury place until 1917, and the Buller place until 1921, because the latter property was under lease until that time.
February 27, 1920, Martin Albrethsen mortgaged the above designated N. 1/2NE. 1/ 4 Sec. 8, and E. 1/2E. 1/2 Fractional Sec. 5, Tp. 1 S., R. 19 E., B. M., of the original Kingsbury ranch, to respondent, together with appurtenances, etc., which concededly includes whatever water right there was belonging thereto; but no specific right was designated, and the only recorded appurtenant water was as above indicated, being the 105 inches awarded in the Frost decree. By foreclosure, respondent acquired title to this land and its appurtenant water.
June 7, 1922, Martin Albrethsen mortgaged the Buller ranch and 600 inches of water (150 inches of the original decreed right thereto having been previously transferred by him, which 150 inches is of no moment herein) as appurtenant thereto, to appellant, and appellant, by foreclosure, has acquired title thereto.
Respondent brought suit to quiet title to 150 inches of this 600 inches of water of the Buller water right, on the ground that while Martin Albrethsen owned both the Kingsbury and Buller ranches, he intentionally transferred 150 inches of the Buller right to the land mortgaged February 27, 1920, to respondent.
Appellant attacks the court's findings, conclusions, and judgment on various grounds, two of which we will consider.
First, that no permit was secured from the commissioner of reclamation under C. S., sec. 5582, authorizing the change of use from the Buller ranch to that portion of the Kingsbury ranch involved; being the land heretofore specifically described. Before a person may have the place of use of water changed, he must show that he owns the water, or has the right to have it changed, which must, if there is a dispute, be determined in an action for that purpose. (Twin Falls Canal Co. v. Shippen, 46 Idaho 787, 271 P. 578; First Security Bank v. State, 49 Idaho 740, 291 P. 1064.)
Under the peculiar facts in this case, i. e., that at the time when respondent contends the transfer of the water from the Buller place to the Kingsbury place was made, Martin Albrethsen owned both land and water and all the water came through the same ditch, and since no other user would have been affected by such change of use, it would seem that no necessity existed at that time for statutory action before the commissioner of reclamation. While, therefore, the fact that Martin Albrethsen never sought statutory authority to change the place of use from the Buller ranch to the Kingsbury ranch, of this 150 inches of water, is a circumstance bearing on whether he intended so to change the appurtenancy of the water, it is not an impediment to his successor in interest bringing an action to quiet title to the water involved.
The real controversy revolves around the rule of law as stated by respondent:
"Where one owns two ranches and openly and intentionally transfers a water right from one ranch to the other, for permanent use on the latter, immediately such water is separated from the one ranch and becomes an appurtenance to the one to which it is so transferred; this right of transfer being one of the incidents of ownership."
This being a suit to quiet title, the burden of proof rested on respondent to prove according to its own statement of the law, that Martin Albrethsen intentionally transferred 150 inches from the Buller ranch to the Kingsbury ranch.
Respondent called Martin Albrethsen as its witness and examined him, but never asked him whether he so transferred this water; whether he intended to transfer it; what water he considered he was mortgaging February 27, 1920, to respondent, or what water he intended the mortgage to cover as appurtenant to the portion of the Kingsbury ranch covered by the mortgage. (Jones, Commentaries on Evidence, 2d ed., sec. 709; 41 C. J., pp. 450, 475; Seymour Water Co. v. Lebline, 195 Ind. 481, 144 N.E. 30, 145 N.E. 764.) Respondent relies solely on nonuse on the Buller place, and use on the Kingsbury place, of the water in question.
Martin Albrethsen's son, Holger Albrethsen, who managed or worked the places for his father at certain times, testified as follows:
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