Hall v. Blackman

CourtUnited States State Supreme Court of Idaho
Writing for the CourtSULLIVAN, J. Per Curiam.
Citation68 P. 19,8 Idaho 272
Decision Date31 January 1902

68 P. 19

8 Idaho 272


Supreme Court of Idaho

January 31, 1902

WATER RIGHTS LOCATED BY COPARTNERS OR COTENANTS.-Where E. & E., as copartners, procured title to four hundred and eighty acres of adjoining land (the former to three hundred and twenty acres and the latter to one hundred and sixty acres), and diverted and appropriated water sufficient to irrigate the same and conducted such water upon said land in 1872, and in that year put two hundred acres of the land that stood in the name of the former in cultivation, and thereafter until the year 1886, did not increase [8 Idaho 273] the acreage of cultivated land, and in the latter year dissolved partnership, and divided their land and water right equally, the former getting all of the cultivated land and the latter the uncultivated. Held, that the right to the use of water for the irrigation of all of said land had been acquired, and should date from the first appropriation of such water, to wit, March, 1, 1872.

WATER RIGHT APPURTENANT TO LAND.-Under the facts, held, that the right to the use of water sufficient for the irrigation of the land not actually put into cultivation became appurtenant thereto, and was transferred by deed conveying such land and its appurtenances.

PRESCRIPTION RIGHT-HOW ACQUIRED.-Under the law of this state, in order to obtain a prescription right to the use of water, the use on which such claim is based must be adverse to the rights of the owner, and must be accompanied by all of the elements necessary to constitute adverse possession and use.

SAME.-A prescriptive right to the use of water cannot be acquired by the use thereof with the consent or permission of the owner, or where the statute law requires him to let others use it.

PROSPECTIVE STATUTE.-The provisions of section 12 of an act entitled "An act providing for the appropriation and distribution of water," etc., approved February 25, 1899 (Sess. Laws 1899, p. 380), are prospective, and are not intended to forfeit vested rights.

WATER RIGHTS DECLARED TO BE REAL ESTATE.-By the provisions of sections 16 and 2825 of the Revised Statutes, possessory rights are made real estate, and may descend to the heirs of a deceased locator.

POSSESSORY CLAIMS.-Sections 4552 to 4556, inclusive, give the right of action to recover public lands not inclosed and cultivated, and have no application to the facts of this case, while the provisions of section 4041 of the Revised Statutes have some application.

USE OF WATER-PUBLIC LANDS-DEATH OF APPROPRIATOR-RIGHT DESCENDS TO HEIRS.-A settler upon public lands of the United States may appropriate water and acquire the right to the use thereof upon such lands, and such right may be sold by him, or, in case of his death, the right descends to his heirs.

(Syllabus by the court.)

APPEAL from District Court, Elmore County.

Cause remanded with instructions. Judgment affirmed in part.

Hawley & Puckett and Wyman & Wyman, for Appellant Blackman.

The theory of the judge of the court below, in arriving at a conclusion in this case, seems to have been that a water right attaches to a particular piece of land upon which such water was used, and that the Ethell brothers having actually used most of their water upon lands now owned by plaintiff Wilson, that such lands must have the benefit of the appropriation. This theory, we urge, cannot be maintained, and is neither founded upon law or upon reason. The right to the use of water acquired by prior appropriation is not in any way dependent upon the place of its application to the beneficial use designed, or to the particular use to which it was first applied. (Davis v. Gale, 32 Cal. 26, 91 Am. Dec. 554; Maeris v. Bicknell, 7 Cal. 261, 68 Am. Dec. 257.) The decision in Maeris v. Bicknell has always been followed in California, and the principle decided applies and has always been construed as applying to water appropriated for agricultural purposes as well as that used in mining. We cite in support of this doctrine, besides the above: McDonald v. B. B. A. W. Mfg. Co., 13 Cal. 220; Coffin v. Left Hand Ditch Co., 6 Colo. 443; Thomas v. Gounod, 5 Colo. 530; Atchinson v. Peterson, 20 Wall. 507; Woolman v. Yarringer, 1 Mont. 535; Huston's Irrigation Law, p. 64; Santa Paula Waterworks v. Peralta, 113 Cal. 39, 45 P. 168; Long on Irrigation, p. 50; Kinney on Irrigation, 233, 234; 5 Sess. Laws, sec. 10, p. 381.) "The right of a prior appropriator of water cannot be defeated to any portion thereof on the ground that he has, by reason of a mistake as to the location of his boundary lines, used a portion of such water upon other lands than his own." (Mahony v. Neiswanger, 6 Idaho 750, 59 P. 561.) "Possessory rights to rights of way for irrigating ditches and the right to the use of water may each have an existence independent of the other." (Ada Co. Farmers' Irr. Co. v. Farmers' Canal Co., 5 Idaho 793, 51 P. 990.) Appellant sets up in subdivision 9 of his cross-complaint that he has been in the continued adverse and uninterrupted possession, use and enjoyment of two hundred and fifty inches of the waters of Bennett creek for more than five years before the commencement of the action, and thereby has acquired a right by prescription to the use thereof. (Smith v. Hamilton, 20 Mich. 433, 4 Am. Rep. 398.) The plaintiff Wilson, following the example of his predecessors, made no objection for over five years to the use of one-half of the waters by appellant. Wilson stood passively by and allowed appellant to open out his fields and bring his entire ranch under cultivation and irrigate it with the water from their joint ditches, and he now is estopped from denying Blackman's right. (Dickerson v. Colgrove, 100 U.S. 578; Kirk v. Hamilton, 102 U.S. 68; Smith v. Hamilton, 20 Mich. 433, 4 Am. Rep. 398; Parke v. Kilham, 8 Cal. 78, 68 Am. Dec. 310; Kirman v. Hunnewill, 93 Cal. 527, 29 P. 124; Long on Irrigation, 88-93; Kinney on Irrigation, 293.)

W. E. Borah and E. M. Wolfe, for Plaintiff Wilson.

In support of our contention that water brought upon premises and used for irrigating the land will pass with the land when the land and the appurtenances are conveyed, see the following authorities: Farmer v. Water Co., 56 Cal. 11; Cave v. Crafts, 53 Cal. 135; Coonradt v. Hill, 79 Cal. 587, 21 P. 1099; Clyne v. Water Co., 100 Cal. 310, 34 P. 714; Frank v. Hicks, 4 Wyo. 502, 35 P. 475, 1025; Ely v. Ferguson, 91 Cal. 190, 27 P. 587; Eshelman v. Snyder, 82 Ind. 502; Wilson v. Higby, 62 F. 726; McGinness v. Stanford, 6 Idaho 372, 55 P. 1020. "A prescriptive title cannot be founded upon use and occupation which is not adverse to the title of the owner, but which is under permission of such owner." (Davis v. Devanney, 7 Idaho 742, 65 P. 500; Lakeside Ditch Co. v. Crane, 80 Cal. 181, 22 P. 76; Hanson v. McCue, 42 Cal. 310, 10 Am. Rep. 299.) "The law is well established that no right to the use of water can be acquired by prescription unless there has been such an invasion of the rights of the parties against whom it is asserted as would give them a cause of action therefor." (Carson v. Hays, 39 Or. 97, 65 P. 817; Dick v. Bird, 14 Nev. 167; Anaheim Co. v. Water Co., 64 Cal. 185, 30 P. 623; Alta Land etc. Co. v. Hancock, 85 Cal. 219, 20 Am. St. Rep. 217, 24 P. 645; Grigsby v. Water Co., 40 Cal. 396; Union v. Ferris, 2 Saw. 176, 450; Kinney on Irrigation, sec. 294; Huston v. Bybee, 17 Or. 140, 20 P. 51.) "A right to the use and possession of the water of a stream may be acquired by prescription only when accompanied by claim of title and by such possession and use as exclude other claimants from the use and possession thereof." (Brossard v. Morgan, 7 Idaho 215, 61 P. 1031; Lower Co. v. Louden Co., 27 Colo. 267, 83 Am. St. Rep. 80, 60 P. 631; Boggs v. Mining Co., 14 Cal. 279; Water Supply etc. Co. v. Tenney, 24 Colo. 344, 51 P. 505.) The next question is, Did plaintiff Wilson forfeit his water rights by failing to record a notice as required by section 12, House Bill No. 185, Session Laws of 1899? Section 10 says that those who have heretofore acquired water rights must be taken to have secured them to the extent of their works regardless of compliance with this act. The language "this act," includes section 12. (Kirk v. Bartholomew, 3 Idaho 367, 29 P. 40; McRea v. Haraszthy, 51 Cal. 150.)

N. M. Ruick, for Respondent Hall, cites no authorities upon the points decided not cited above.

W. C. Howie, for Defendants C. F. Ross and Ida Ross.

Conceding, for the sake of argument, that G. B. Ross' possessory right to the land would not descend to his heirs, there can be no question that G. B. Ross acquired a water right and that water right descended to his heirs, for that a water right can be acquired and held independent of land has been repeatedly held by this court, and that it is the universal law in these western states, see Judkins v. Elliott (Cal.), 12 P. 116; Black's Pomeroy on Water Rights, sec. 47; Gould on Water Rights, sec. 230; Hindman v. Rizor, 21 Or. 112, 27 P. 13. Though the deeds were to the land as though the heirs had the absolute title in fee to it, while they had only a contingent interest, yet the deeds would convey whatever interest they had in the land. (Holbrook v. Holbrook, 15 Me. 9; Whetstone v. Ottawa Min. Co., 13 Kan. 320 (see 341); Martin v. Sterling, 1 Root (Conn.), 210; Law v. Hempstead, 10 Conn. 23 (see 27); Foote v. Saunders, 72 Mo. 616; Mt. Washington Hotel Co. v. Marsh, 63 N.H. 230; Sinclair v. Jackson, 8 Cow. (N. Y.) 543 (see 579). And the deeds would carry any and all water rights that had been used or enjoyed with the land whether the deed called for the appurtenances or not. (Hindman v. Rizor, 27 P. 13; Cave v. Crofts, 53 Cal. 135; Gould on Waters, sec. 354; Geddis v. Parrish, 1 Wash. 587, 21 P. 314; Frank v. Hicks, 4 Wyo. 502, 35 P. 475; Farmer v. Ukiah Water Co., 56 Cal. 15; Eshelman v. Snyder, 82 Ind. 498 (see 501); Frank v. Hicks, 4 Wyo. 502,...

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