Francis v. Green

• Decision Date: 31 May 1901
• Citation: 7 Idaho 668,65 P. 362
• Parties: FRANCIS v. GREEN
• Court: Idaho Supreme Court

65 P. 362

7 Idaho 668

FRANCIS v. GREEN

Supreme Court of Idaho

May 31, 1901

WATER RIGHTS-ENFORCEMENT OF CONTRACT-EQUITY-PART PERFORMANCE-POSSESSION AND RIGHTS OF SETTLERS-PUBLIC DOMAIN.-A verbal contract to convey the right to use water for irrigation and domestic purposes, where there has been a part performance of the contract of sale, and the possession and use of such water has been changed, will be enforced in a suit in equity. Settlers upon Indian reservations are subject to the same law governing the possession and right to the possession of property as settlers upon the public domain, where it appears that they occupy lands as homes within such reservation by sufferance only.

(Syllabus by the court.)

APPEAL from District Court, Bannock County.

Reversed and remanded.

J. W Eden and D. W. Standrod, for Appellants.

In a suit to quiet title the plaintiff must allege and prove title in himself, and if he fails he cannot recover. (See Heney v. Pesoli, 109 Cal. 53, 41 P. 819; Winter v McMillan, 87 Cal. 256, 22 Am. St. Rep. 243, 25 P. 407; San Francisco v. Ellis, 54 Cal. 72.) W. M. Francis the vendor of the plaintiffs, not only could not acquire any right to the land or water on the reservation but was forbidden by law from going upon the land and when he did go upon the land and settled thereon he committed a crime against the laws of the United States. (See U. S. Rev. Stats., sec. 2118; Langford v. Monteith, 1 Idaho 612.) The plaintiffs and their predecessors in interest are and were trespassers upon the Indian reservation, without any right whatever to settle or make improvements upon the lands reserved for the sole use of said tribes. (See Langford v. Monteith, 1 Idaho 612; 15 U. S. Stats. at Large, 674.)

Terrell & Guheen, for Respondents.

The appellants having been voluntary parties to that suit, and having accepted the fruits of a decree, can they now be heard to say it is void, when they think it operates against them? Are they not estopped? We think the following authorities answer the questions favorable to the respondent: Denver City Irr. Co. v. Middaugh, 12 Colo. 434, 21 P. 565, 13 Am. St. Rep. 234; Board of Commissioners v. Welch, 40 Kan. 767, 20 P. 483; Sanford v. Oberlin College, 50 Kan. 342, 31 P. 1089; Neil v. Tolman, 12 Ore. 289, 7 P. 103; Lord v. Thomas (Cal.), 36 P. 372; Bryan v. Kales (Ariz.), 20 P. 311; Clemens v. Clemens, 37 N.Y. 74; Bloomer v. Struges, 58 N.Y. 176; Aspden v. Nixon (exhaustive notes), 4 How. 466, 11 L. ed., 1059. In the trial court it was contended that the federal courts had exclusive jurisdiction, but we deny the proposition. To give a court of the United States jurisdiction of a cause, it must appear that the right to relief sought must depend directly upon the construction of some provision of the constitution or laws of the United States. (Montana R. O. P. Co. v. Boston & M. C. C. Co., 93 F. 274; Tennessee v. Union & P. Bank, 152 U.S. 454, 14 S.Ct. 654.) In the case of Prallus v. P. G. & S. M. C., 35 Cal. 34, the court says: "The plaintiffs, as appears by their complaint, claim only a possessory title in or upon the public lands of the United States, and the first question presented is, whether such a claim or title is sufficient to authorize an action by a party in possession under the same, to determine the adverse title or claim of a party out of possession. This has been frequently decided by this court in the affirmative and we think correctly." (Merced Min. Co. v. Fremont, 7 Cal. 319, 68 Am. Dec. 262; Smith v. Brannon, 13 Cal. 107; Boggs v. Merced Min. Co., 14 Cal. 279; Curtis v. Sutter, 15 Cal. 259; Head v. Fordyce, 17 Cal. 149.) The district court rendered judgment in favor of the plaintiffs, because the deed made by W. M. Francis to defendants was not signed by his wife Sarah M. Francis one of the plaintiffs in this case. This was upon the theory that the water was community property and real estate, and that it could be conveyed only as provided by section 2921 of the Revised Statutes of Idaho. (Idaho Rev. Stats., sec. 2825; Ada County Farmers' Irr. Co. v. Farmers' Canal Co., 5 Idaho 793, 51 P. 990; Clifford v. Larrien (Ariz.), 11 P. 397; Reed v. Spicer, 27 Cal. 58; McGinnis v. Standfield, 6 Idaho 372, 55 P. 1020.) That the deed made by the husband without the signature or acknowledgment of the wife for property occupied and used as a place of residence is void. (Rev. Stats., secs. 2505, 2921, 2922, 2956; Stowell v. Tucker, ante, p. 312, 62 P. 1033; Wilson v. Wilson, 6 Idaho 597, 57 P. 708-710; Northwestern etc. Bank v. Rauch, ante, p. 152, 61 P. 516; Law v. Spence, 5 Idaho 244, 48 P. 282.)

STOCKSLAGER J., SULLIVAN, J. Quarles, C. J., Sullivan, J., and Stockslager, J., concurring.

OPINION

STOCKSLAGER, J.

In this case we are called upon to review the proceedings of the trial court on appeal from the judgment thereof. It appears that William M. Francis and Sarah F. Francis are husband and wife. The complaint alleges that the real estate which is the subject of this action is the separate property of the plaintiff Sarah M. Francis, and for that reason William M. Francis is not made a party to the action. The complaint alleges: That about the year 1879 said plaintiff and her said husband located upon and improved a certain tract of land as follows: "About one hundred and sixty acres lying along Marsh creek at the intersection of Little Cottonwood and said Marsh creek," etc. That said land is disputed Indian country, but by permission of the Secretary of the Interior plaintiffs and their predecessors in interest have been permitted to remain upon, cultivate occupy and improve the same, and that plaintiffs are now in the possession and occupation of said lands and improvements, and have been since the year 1879 continuously, and are entitled to such possession, occupation and improvements. That the defendants, their predecessors, etc., have been and now are in possession, occupation and use of about one hundred and sixty acres lying to the north of and adjoining the lands of plaintiffs upon such disputed Indian country, having the same, or practically the same, right that the plaintiffs have to the lands above described. That the land possessed by plaintiffs is arid, and will not produce agricultural crops successfully without irrigation. That plaintiffs and their predecessors in interest in the year 1879 appropriated of the waters of Little Cottonwood creek certain water therein flowing for agricultural and domestic purposes, and ever since have claimed and used, and now claim and use, such water for such purposes. That on the twenty-eighth day of December, 1898, in the action of William Francis, plaintiff (being the William M. Francis herein referred to), against Andrew Goodenough and J. and B. Green, defendants, in the above-entitled court, judgment and decree were duly made and entered in favor of said plaintiff and against said defendants adjudging and decreeing to plaintiff the use of one hundred and twenty-five inches of the waters of said Little Cottonwood creek from April 1st to June 1st of each year, and one hundred inches thereafter up to August 1st, and seventy-five inches thereafter during the remainder of each irrigating season, for the proper irrigation of the land of plaintiffs above described; such rights to be of equal dignity with a similar right awarded to Andrew Goodenough; such rights to be superior to all other rights of any parties claiming water from said stream; and that the rights decreed to J. and B. Green should in no wise interfere with the rights of the plaintiffs in said action. That since the year 1879 plaintiff and her husband, William M. Francis, resided upon and used above-described land as a home, diverted water from said creek to be used upon said land, and continued to so use and occupy said land as a home until some time during the year 1899, when said William M. Francis deserted and abandoned plaintiff Sarah M. Francis, and has since resided separate and apart from her; but that she, with her children, has continued to reside upon said land as a home, and continued to use the water for agricultural and domestic purposes. That after the separation of said William M. Francis and Sarah M. Francis, in settlement of their property rights, said William M. Francis, by deed, conveyed to Sarah M. Francis all his interest in and to said land and the water theretofore decreed to him. That about the same day said William M. Francis and his wife, Sarah M. Francis, conveyed by deed to William L. Francis an undivided one-half interest in all of said land and the water belonging thereto. That by reason of such conveyance said plaintiffs are the joint owners of such land and the water decreed thereto. That defendants claim some estate or interest in said water so decreed to William M. Francis adverse to plaintiff, but that such claim is without right, etc. To this complaint defendants answer, denying that the property in controversy is, or ever was, the separate property of Sarah M. Francis. Deny that the tract of land claimed by plaintiffs contains one hundred and sixty acres, or to exceed one hundred and twenty acres, and allege that not to exceed eighty acres have ever been improved or cultivated. Deny that said land is situated on disputed Indian country, but allege that said land lies within the Fort Hall Indian reservation. Deny that plaintiffs occupy said land by permission of the Secretary of the Interior, or any other legal authority, and allege that plaintiffs are trespassers upon said lands and Indian reservation. Admit the decree as set forth in plaintiffs' complaint, but allege the court was without jurisdiction, and that the decree was void. Deny that the plaintiffs, or either of them, have used or claimed the amount of...