Feeney v. Chester

• Decision Date: 27 November 1900
• Citation: 7 Idaho 324,63 P. 192
• Parties: FEENEY v. CHESTER
• Court: Idaho Supreme Court

63 P. 192

7 Idaho 324

FEENEY v. CHESTER

Supreme Court of Idaho

November 27, 1900

WATER RIGHTS-IRRIGATION-ACTION TO QUIET TITLE TO DITCH AND WATER-VERBAL AGREEMENT AS TO USE OF WATER.-Where it is apparent from the pleadings that the purpose of the litigation is the settlement of the rights of the parties litigant to the waters of a certain creek or river flowing through a certain ditch and the rights of the parties to the use of such ditch, it is not error for the trial court having before it all of the parties interested and having jurisdiction of the subject matter, to pass upon and decide the entire matter. Where one contemplating the construction of a ditch or canal for the purpose of conducting water from a creek or river to lands owned by him finds that it is necessary to construct the same over and through the lands of another, and makes an agreement with the owner of said lands, that in consideration of a right of way through the same, such owner shall have an interest in said ditch to the extent of a sufficient amount of water therefrom to irrigate his said lands, such agreement is binding upon both the party making the agreement and those holding or claiming to hold under him.

(Syllabus by the court.)

APPEAL from District Court, Bannock County.

Judgment affirmed, with costs to respondent.

Arthur Brown and Thomas F. Terrell, for Appellant.

The contract which is sought to be specifically executed ought not only to be proved, but the terms of it should be so precise as that neither party could reasonably misunderstand them. If the contract be vague or uncertain, or the evidence to establish it be insufficient, a court of equity will not exercise its extraordinary jurisdiction to enforce it, but will leave the party to his legal remedy. (Calson v Thompson, 2 Wheat. 336; Magee v. McManus, 70 Cal. 553, 12 P. 451; Los Angeles etc. Assn. v Philips, 56 Cal. 530; Morrison v. Rossignol, 5 Cal. 64; Potts v. Whitehead, 20 N. J. Eq. 55; Brown v. Brown, 33 N. J. Eq. 650.) Any decree is erroneous which is not within the issues framed by the pleadings. (Owen v. Meade, 104 Cal. 179, 37 P. 923; Stout v. Coffin, 28 Cal. 65; Tomlinson v. Monroe, 41 Cal. 94; Johnson v. Moss, 45 Cal. 515; Clark v. Insursurance Co., 36 Cal. 168; Mondran v. Goux, 51 Cal. 151.) If the defendant relies on the equities of his case for anything beyond a defense, and seeks affirmative relief, he must file a cross-bill. An answer will not be sufficient. (5 Ency. of Pl. & Pr. 632; San Juan etc. Co. v. Finch, 6 Colo. 214; Story's Equity Pleading, sec. 398a; McConnell v. Smith, 23 Ill. 611; Harrison v. McCormick (Cal.), 9 P. 114.)

Winters & Guheen, for Respondent, cite no authorities in their brief.

HUSTON, C. J. Quarles and Sullivan, JJ., concur.

OPINION

HUSTON, C. J.

Although this case is, as shown by the record, an action to restrain a trespass, still it seems to have been treated by both court and counsel as an action to quiet the title of the parties litigant to the waters of Soda creek, or to a ditch taking water from said creek. Appellant states in his brief that "this is a suit in equity to quiet the title of appellant to a certain ditch, described and set forth in the complaint." In his complaint appellant, after setting forth his title to the ditch and the water therein flowing, and alleging the acts of defendant in taking water therefrom, prays "that the defendant be required to set up any right he may have or claim in or to the ditch or canal, and the waters flowing therein, belonging to plaintiff, and that any such right or claim be adjudged and decreed to be inferior and subordinate to the rights of the plaintiff, and void as to the ditch or canal owned by the plaintiff"; and then prays that the defendant be perpetually enjoined from interfering with the right of the plaintiff in and to the ditch or canal aforesaid, or the water flowing therein. The complaint also sets forth the ownership by plaintiff of certain lands susceptible of irrigation by means of the waters aforesaid, and avers the right in the plaintiff to the use for irrigating said land of three hundred and twenty inches of water, measured under a four-inch pressure, of the flow of the waters of said Soda creek. Defendant admits the ownership by plaintiff of the lands described in the complaint, but denies that plaintiff ever used more than fifteen inches of said water for irrigating said land, or that plaintiff has more than fifteen acres of land that is susceptible of irrigation from said ditch and the water of said Soda creek. Defendant also avers that plaintiff's predecessors in interest, and who constructed said ditch, found it necessary in such construction to run said ditch through two subdivisions, of forty acres each, of defendant's land, and, in consideration of defendant granting to him the right of way through said lands, plaintiff's grantor (one Horseley) did agree to give to defendant an interest in said ditch for the purpose of using the waters therein; and that the defendant has, for each and every year since the construction of said ditch, used the waters of the said Soda creek through the said ditch for the irrigation of the lands of said defendant, without any hindrance from the plaintiff or his predecessor in interest, until about one year ago, when the plaintiff laid claim to the whole ditch, without regard to the rights of the defendant. None of the evidence appears in the record.

The court finds, inter alia, after finding the appropriation (no definite number of inches appearing) of said waters by Horseley, the predecessor of plaintiff, as follows: "After the posting of the notice of appropriation as aforesaid, and prior to the actual commencement of work in the excavation of said ditch, it was ascertained that said ditch would traverse two forty-acre subdivisions of the defendant's (William Chester's) land, and thereupon it was verbally agreed between the said Herbert Horseley and defendant that, as a consideration for crossing said land of the defendant with said ditch, the said defendant should be allowed to run water through, and have an interest in, said ditch or canal; that the supply of water from said Soda creek is abundant for all appropriators, and many hundreds of inches of said water going to waste each irrigating season; that one inch to the acre is sufficient water for the irrigation of any of the lands of the plaintiff or defendant; that plaintiff and his predecessors in interest have continuously used from said canal water sufficient to irrigate ten acres of his said land and for domestic purposes; that defendant has continuously, each and every year, used water from said canal for the land mentioned in finding 13 hereof, as such land has been cleared and cultivated." And as conclusions of law the court finds "that the defendant is entitled to the use of said canal for the purpose of...