Gustin v. Harting

• Decision Date: 17 February 1912
• Docket Number: 661
• Citation: 121 P. 522,20 Wyo. 1
• Parties: GUSTIN v. HARTING
• Court: Wyoming Supreme Court

121 P. 522

20 Wyo. 1

GUSTIN v. HARTING

No. 661

Supreme Court of Wyoming

February 17, 1912

ERROR to the District Court, Fremont County; HON. CHARLES E CARPENTER, Judge.

The material facts are stated in the opinion.

Judgment affirmed.

Stone &amp Winslow, for plaintiff in error.

Plaintiff failed to show sufficient title to his land to authorize a recovery, all that was shown being his occupancy of the tract in question. The plaintiff also failed to establish any right of way for a ditch or that he had any appropriation of water. The contention of the plaintiff in error, defendant below, is that the flume was used jointly under a permission or license but without any right of way or ownership by Harting, the plaintiff below; and that the permission for the use of the flume by Harting was under an agreement giving to the plaintiff in error the use of the main ditch. A ditch is real estate, and a conveyance of it must be in writing. (Wiel on Water Rights, Secs. 150, 222; Clark v. Willett, 35 Cal. 534; Barber v. Mooney, 87 P. 556; Whalon v Canal Co., 11 Wyo. 313.) After title has passed from the Government the land can be burdened with a right of way for water only by consent of the owner or by condemnation proceedings. (Wiel on Water Rights, Sec. 151.) A ditch is more than a mere excavation; it must be connected with a good and sufficient water right before it is technically a ditch. (Whalon v. Canal Co., supra.) Working upon, cleaning out and using an irrigation ditch is not itself sufficient to vest title. One cannot arbitrarily use another's ditch or interest in a ditch and thereby impair the right or use of the owner. (McPhail v. Forney, 4 Wyo. 557; Wiel on Water Rights, Sec. 133.)

The proof was wholly insufficient to establish a right in the plaintiff by prescription or adverse user. If the user begins under a license, and the nature of the use never changes, no prescriptive right will be acquired. (Farnham on Waters, Secs. 1800, 2367; Lane v. Miller, 27 Ind. 534.) The use must be continued for the statutory period, exclusive, open, under claim of right (color of title), hostile, and an invasion of the right of the other which the latter might have prevented. (Wiel on Water Rights, Secs. 234-248; Butler v. Smith, 84 Neb. 78.) The evidence shows repeated efforts by the plaintiff below within the statutory period to obtain by purchase the right of way for the flume. Thereby the plaintiff below recognized the superior title in the defendant, and made it impossible for him to claim adverse possession or user. (Irr. Co. v. Fulton (Utah) 65 P. 205.) Where one enters possession of the property by the owner's permission without any tenancy except at sufferance, possession being given merely as a matter of favor, title by adverse possession cannot be acquired against the true owner, unless there is a clear, positive and unequivocal disclaimer, disavowal of the owner's title, and the assertion by the occupant of the title in hostility thereto, notice thereof being brought home to the true owner. (12 L. R. A. (N. S.), p. 1140, note; 22 Ency. Law, 1195-96.) Use of water below the place of the claimed easement will not establish an adverse title. (Wiel on Water Rights, p. 380, 357; Canal Co. v. Burnam, 147 N.C. 41.)

Where the evidence produced by a party is insufficient in law to authorize a finding in his favor a peremptory instruction should be given in favor of his adversary. (Boswell v. Bank, 16 Wyo. 161.)

W. E. Hardin, for defendant in error.

Title by prescription may be shown under a general allegation of ownership. (Montecito Co. v. Santa Barbara, 77 P. 1113; Lakeside Co. v. Crane, 22 P. 76.) A right of way for an irrigation ditch and flume may be acquired by a gratuitous license of the landowner, and after entry and expenditure of money thereon the license becomes irrevocable. (DeGraffenreid v. Savage, 47 P. 902; Maple Orchard &c. v. Marshall, 75 P. 369; Tynon v. Despain, 43 P. 1059; Turner v. Stanton, (Mich.) 4 N.W. 402; Marble v. Whitney, 28 N.Y. 297.)

The right to the use of the water of Baldwin Creek for irrigation through the Harting and Sharp Ditch and its branches had its original support in the Act of Congress approved July 9, 1870. Upon the refusal of an owner to permit a ditch to run through his land a right of way may be condemned, and the statutes of Wyoming Territory gave that right at the time the main ditch and flume in question were originally constructed. A clandestine tearing down of the flume in the night time by stealth and without the knowledge of plaintiff as to the one who did it is not sufficient to destroy adverse possession. (Britain v. Cronn, 91 P. 458.) Any visible act which demonstrates an intention to claim ownership and possession is sufficient to establish adverse possession. The mode of use and enjoyment of the flume and lateral for thirty-two years determined the right of Harting to maintain the same. (Guernsey v. Antelope Creek, 92 P. 326; Knight v. Cohen, 93 P. 396.) The offer to purchase after the statute has fully run will not bar claim of adverse possession. (Coventon v. Seufert, 32 P. 508.) The use of the flume by permission does not affect the prescriptive right so long as it has been used and exercised for the requisite period under a claim of right. If the use of the right were under parol consent to use it as if it were legally conveyed it became a use as of right. (Gould on Waters, 338; Washburn on Easements, 127; Wiel on Water Rights, (2nd Ed.), Sec. 238.)

In many respects the testimony on the part of the defendant is inconsistent, and the jury very properly found the facts in favor of the plaintiff below. When the defendant purchased the land upon which the ditch was located and the flume and lateral runs, and took possesion thereof in 1887, he is presumed to have bought with notice of the rights of plaintiff in the premises. (Coffman v. Robbins, 8 Ore. 278.) An attempt to convey a water right by an imperfect deed operates as an abandonment of the title obtained by the appropriator thereof. (Barkley v. Tieleke, 2 Mont. 34.) If a deed recites two descriptions of property, one of which sufficiently identifies it, but the other fails in fact, the false description should be rejected as surplusage. (Reed v. Spicer, 27 Cal. 57.)

POTTER, JUSTICE. BEARD, C. J., and SCOTT, J., concur.

OPINION

POTTER, JUSTICE.

This action was brought in the District Court in Fremont County by Henry Harting against Edward A. Gustin to recover damages alleged to have been sustained through the destruction by defendant of a flume that had been used in connection with certain ditches for the purpose of conveying water appropriated by the plaintiff for the irrigation of a nine-acre tract of land situated in the southeast corner of the northwest quarter of the northeast quarter of Section 12 in Township 33 North Range 100 West of the Sixth principal meridian.

The petition alleges that before and at the time of the injury complained of the plaintiff was one of the joint owners of an irrigating ditch taken out of Baldwin Creek known as the "Harting & Sharp" ditch, and referred to as the main ditch, and a right of way for said ditch through certain lands of defendant, and also of the proportionate right to the use of water through said ditch for the irrigation of the plaintiff's land above mentioned, which is described in the petition by metes and bounds. It is further alleged that the plaintiff was the joint owner of a certain lateral ditch commonly known as the "Fosher & Harting" ditch, and of a certain flume connecting said main and lateral ditches, together with a right of way for said flume and lateral ditch across the said lands of defendant; and that on the 7th day of August, 1908, the defendant wrongfully, wantonly, willfully and maliciously destroyed and removed said flume, whereby the plaintiff was deprived of the use of the water for the remainder of the irrigating season, and the crops, vegetables, plants and trees, which were growing upon the plaintiff's said land were greatly burned, injured and damaged. The answer is a general denial. The jury impaneled in the case returned a general verdict for the plaintiff and assessed his damages in the sum of $ 460. Thereupon a judgment for the amount of the verdict was rendered in favor of the plaintiff. Upon the hearing of defendant's motion for new trial an order was entered sustaining the same unless the plaintiff should file a remittitur in the sum of $ 230; and thereafter, such remittitur having been filed, the motion for new trial was again heard and overruled, and the judgment for the reduced amount allowed to stand. The defendant brings the case here on error.

It appeared upon the trial that the defendant was the owner of all the quarter section of land above referred to except the plaintiff's nine-acre tract; and that he had acquired the title thereto in October, 1886, under an execution sale upon a judgment rendered in his favor against Amos Gustin, the former owner of the land. It also appeared that the Harting &amp Sharp ditch, or the "main ditch" as it is called, runs across a part of defendant's land in a southeasterly direction from a point near the northwest corner thereof; that the flume in question connected with that ditch on defendant's land and was constructed across a hollow or swale to the lateral ditch mentioned in the petition; and that for many years the plaintiff's land aforesaid was supplied with water for its irrigation through said ditches and the said flume or others replaced by it. The fact that defendant had destroyed the flume at or about the time alleged was established by the plaintiff's evidence and was admitted by the defendant in his testimony. No question was raised upon the trial as to the main ditch or...