Gorrie v. Weiser Irr. Dist.

• Decision Date: 27 November 1915
• Citation: 28 Idaho 248,153 P. 561
• Parties: NORVAL GORRIE, Appellant, v. WEISER IRRIGATION DISTRICT, a Corporation, Respondent
• Court: Idaho Supreme Court

153 P. 561

28 Idaho 248

NORVAL GORRIE, Appellant, v. WEISER IRRIGATION DISTRICT, a Corporation, Respondent

Supreme Court of Idaho

November 27, 1915

CANAL-RIGHT OF WAY-EASEMENT-ADVERSE USER-RIGHT TO MAINTAIN AND REPAIR CANAL.

1. One who has acquired a right of way for a canal across the land of another by adverse user has acquired also the right to enter on such land for the purpose of cleaning and maintaining such canal.

2. Held, that the right to clean and maintain the canal is involved in the acquisition of it, but in doing that work the owner must do the same with due care and not occupy any more or greater width of the land along the banks of the canal than is absolutely necessary in depositing the debris and other matter necessarily required to be taken from such canal to properly clean and maintain it.

[As to liability of irrigation companies for negligent care of ditch, see note in 81 Am.St. 492]

APPEAL from the District Court of the Seventh Judicial District, in and for Washington County. Hon. Ed. L. Bryan, Judge.

Action to enjoin the defendant from trespassing on the lands of plaintiff and to recover damages. Judgment for plaintiff for $ 50 as damages for defendant's interfering with the lateral ditch of plaintiff. Judgment for the defendant denying an injunction. Judgment affirmed.

Judgment affirmed, with costs in favor of the respondent.

Ed. R Coulter, for Appellant.

"The location of a water right and filing of a notice therefor in accordance with law does not give any right to build ditches across lands belonging to others until an easement therefor has been acquired either by purchase or condemnation." (Swank v. Sweetwater Irr. etc. Co., 15 Idaho 353, 98 P. 297.)

"No change whatever can be made on land passed into private hands at the time or subsequent to the appropriation, so far as such acts change the character of the servitude, and this particularly prohibits the change of ditches or other works on such land at all." (Wiel on Water Rights, 3d ed., pp 536, 539. See, also, Vestal v. Young, 147 Cal. 715, 82 P. 381.)

"The extent of the use during prescription limits rights." (Wiel on Water Rights, pp. 637, 918; Swank v. Sweetwater Irr. Co., supra; Miller v. Madera Canal etc. Co., 155 Cal. 59. 99 P. 502, 22 L. R. A., N. S., 391.)

"Injunction will be granted without a showing of damage, because it is a violation of the right of ownership of the land." (Wiel on Water Rights, p. 536; Vestal v. Young, supra; McGuire v. Brown, 106 Cal. 660, 39 P. 1060, 30 L. R. A. 384; Wilson v. Eagleson, 9 Idaho 17, 108 Am. St. 110, 71 P. 613; 22 Cyc. 765.)

Lot L. Feltham, for Respondent.

Where there is a substantial conflict in the evidence, the verdict of the jury and the findings of the trial court will not be reversed. (O'Connor v. Langdon, 3 Idaho 61, 26 P. 659; Later v. Haywood, 15 Idaho 716, 99 P. 828; Brown v. Grubb, 23 Idaho 537, 130 P. 1073.)

SULLIVAN, C. J. Budge and Morgan, JJ., concur.

OPINION

SULLIVAN, C. J.

This suit was instituted on two causes of action. It is alleged in the complaint that the plaintiff is the owner of certain lands therein described, and that the defendant is the owner and proprietor of an irrigation canal running through, over and across plaintiff's said land, and that during the years 1909, 1910, 1911 and 1912 defendant wrongfully, unlawfully and in violation of the rights of plaintiff, took and dug sand and other debris matter from its said canal and dumped and placed the same upon the lands of this plaintiff, thereby filling up his ditches and rendering his land unfit for cultivation and farming, and otherwise damaging him in the sum of $ 200.

The second cause of action is based on an alleged failure of the defendant to comply with a certain agreement, but this appeal touches only the matters contained in the first cause of action. Plaintiff prays for damages in the first cause of action and for a permanent restraining order preventing defendant from dumping any debris taken from said canal, and for costs.

Defendant in its answer admitted the ownership of the land by the plaintiff, admitted the ownership of the canal in itself, but denied all the other material allegations of the complaint. Further answering, the defendant claims a right of way across plaintiff's land for its canal by adverse usage and possession, and furthermore claims that it has not used any more of plaintiff's land in maintaining its canal than is included in its easement, and has used no more than was necessary to be used in the lawful conduct and operation of its canal.

The cause was tried before the court but a jury was impaneled to determine the question of damages. By the verdict of the jury the plaintiff was given $ 50 on account of the second cause of action, but said nothing about the damages on the first cause of action. Thereafter the court made its finding of facts and conclusions of law based upon the verdict and judgment of the jury, and judgment was thereupon entered upon said finding of facts and conclusions of law for the defendant and against the plaintiff.

The court found as a conclusion of law that the plaintiff was not entitled to a permanent restraining order, and it is from that part of the judgment denying plaintiff a permanent restraining order that this appeal is taken. And that is the only question involved on this appeal, so far as the plaintiff is concerned.

The verdict in favor of the plaintiff for fifty dollars was granted as damages under the second cause of action, which was based on the failure of the defendant to comply with an arrangement made with the plaintiff to place the debris washed into said canal by a cloudburst on the upper side of the ditch and properly spread the same over the land. This however, is not material to the questions raised on this appeal, since the appeal touches only the matters contained in the first cause of...