Hall v. Taylor

Decision Date24 April 1937
Docket Number6426
Citation67 P.2d 901,57 Idaho 662
PartiesFRANK HALL, Respondent, v. RAY TAYLOR and IVA TAYLOR, Husband and Wife, Appellants
CourtIdaho Supreme Court

WATER AND WATERCOURSES - PERCOLATING WATER-OWNERSHIP-ADVERSE POSSESSION-EASEMENT-RIGHTS GOVERNED BY PRESCRIPTION.

1. Landowner held not entitled to easement in pond or reservoir constructed on adjoining land below spring, developed thereon by owners of both tracts, to collect waste and seepage waters, and hence not entitled to pipe water therefrom to his land.

2. Adverse right to property is not originated by consent, but against will, of true owner, and generally rests on original trespass, which matures into property right as result of such owner allowing adverse claimant or trespasser to continue adverse use and possession uninterruptedly with assertion of right for statutory period.

3. Judgment quieting landowner's prescriptive title to water from spring or seep against owners of adjoining land, on which located, should determine definite amount of annual flow to which plaintiff acquired prescriptive right by user and definitely fix location, length, and width of right of way or easement necessary for protection and enjoyment of such right.

4. One acquiring title to waters of spring or seep on land adjoining his land by adverse possession and use should be allowed only easement necessary for maintenance of pipe or ditch to carry water onto his land and no greater dam privileges than he exercised while acquiring such water right.

5. Prescriptive right acquired by landowner to waters from spring on adjoining land must be measured by nature and extent of use of such waters by him and his predecessors in title while acquiring such right, and he is not entitled to profit from increase in flow of spring since inception of right.

6. Right gained by prescription is confined to right as exercised for full period of time required by statute, and one claiming such right cannot claim use as enlarged by him during such time.

APPEAL from the District Court of the Third Judicial District, for Elmore County. Hon. Chas. F. Koelsch, Judge.

Action to quiet title to water right. Judgment for plaintiff. Defendants appeal. Judgment affirmed in part and reversed in part and remanded for further proceedings.

Judgment affirmed in part and reversed in part. Cause remanded with directions. Costs awarded to appellants.

A. F James for Appellants.

Waters of a spring located wholly upon land on which the spring arises are not subject to appropriation by any person other than the owner of such land on which the spring is located. (Public Utilities Com. v. Natatorium Co., 36 Idaho 287 (5), 211 P. 533; Kinney on Irrigation, vol. 2, pp. 1135 1136.

Percolating waters belong to the realty on which they are found. (King v. Chamberlin, 20 Idaho 504, at 512, 118 P. 1099; Willow Creek Irr. Co. v. Michaelson, 21 Utah 248, 60 P. 943, at 944, 81 Am. St. 687, 51 A. L. R. 280.)

Percolating waters developed artificially by excavation and other artificial means belong to the owner of the land upon which they are developed and are not subject to appropriation by another person. (Hunt v. City of Laramie, 26 Wyo. 160, 181 P. 137; Fourzan v. Curtis, 43 Ariz. 140, 29 P.2d 722; 67 C. J., p. 969.)

Where one attempts to appropriate waters on the lands of another without grant, condemnation proceedings, or prescription, the right acquired amounts only to a license which may be revoked at any time by the licensor, or his successor, and is revoked by the latter's obstruction of the flow. (Prentice v. McKay, 38 Mont. 114, 98 P. 1081; Davis v. Devanney, 7 Idaho 742, 65 P. 500; Jensen v. Gerrard, (Utah) 39 P.2d 1070.)

In order to establish adverse possession of water, adverse claimant must show that his use thereof deprived the prior appropriator at a time when the latter actually needed it and proof merely that the adverse claimant used the water and claimed the right to use it is insufficient to establish title by adverse possession. (Galiger v. McNulty, 80 Mont. 339, 260 P. 401 (16); Spring Creek Irr. Co. v. Zollinger, 58 Utah 90, 197 P. 737; Hall v. Blackman, 8 Idaho 272, at p. 283, 68 P. 19.

Charles Stout for Respondent.

Priority--Waste, seepage, and spring waters may be appropriated. (41-107, I. C. A.; Breyer v. Baker, 31 Idaho 387, 171 P. 1135; Sebern v. Moore, 4 Idaho 410, 258 P. 176; Bower v. Moorman, 27 Idaho 162, 147 P. 496, Ann. Cas. 1917C, 99.)

Appellant to prevail herein must show an abandonment by Hall and his predecessors for a period of five years. (Sec. 41-216, I. C. A.; Chill v. Jarvis, 50 Idaho 531, 298 P. 373.) Proceeding to declare forfeiture should be instituted. (Carns v. Idaho etc. Co., 34 Idaho 330, 202 P. 1071; Hurst v. Idaho etc. Co., 34 Idaho 342, 202 P. 1068.)

Presumption from long continued use is that water was validly appropriated. (Harris v. Chapman, 51 Idaho 283, 293, 5 P.2d 733.) Defendant's claim must be set up by cross-bill. (Kinney on Irrigation, 2d ed., p. 2793, n. 6.)

AILSHIE, J. Givens, J., concurs, Morgan, C. J., and Holden and Budge, JJ., concur in the conclusion.

OPINION

AILSHIE, J.

--This action was commenced by respondent to quiet his title to the waters of a small spring or seep situated on appellants' land, and he alleged title to such waters by adverse possession and use. The court made findings and entered judgment in favor of the plaintiff (respondent here) and the defendants appealed.

The assignments of error involve the sufficiency of evidence to sustain the findings, and particularly to establish title to the waters of the spring in question, either by adverse possession or by diversion and appropriation. The essential part of the court's decree reads as follows:

"It is now, therefore, hereby ordered, adjudged, and decreed that the plaintiff have judgment as prayed for in his complaint herein against the defendants, and each and all of them. That all adverse claims of the defendants, and each of them and all persons claiming or to claim said water right and right of way, or any part thereof, through, or under said defendants, or either of them, are hereby adjudged, and decreed to be invalid, and groundless and that the plaintiff be, and he is hereby declared and adjudged to be the true and lawful owner of said water right, and right of way as described in the complaint and hereinafter described, and every part and parcel thereof, and that his title thereto is adjudged to be quieted against all claims, demands, or pretensions of the defendants, or either of them, who are hereby perpetually estopped from setting up any claims thereto or any part thereof, or interfering with in any way the right of the plaintiff to the use of said waters, and the right to enter into and upon the hereinafter described land to maintain the said dam and ditches. Said premises are bounded and described as follows, to wit: The right to the use of said waters in the amount of twenty-five inches with a priority of 1914 of an unnamed spring and stream situated on lands described as the Southeast quarter of the Northeast quarter (SE 1/4 NE 1/4) of Section Thirty Three (33), Township Five (5) South, Range Eleven (11) East, the point of diversion being approximately 15 ft. north and 24 rods west of the southeast corner of said land, together with a right of way to enter said land, repair the ditches thereon, for the purpose of conveying the said water, maintaining a dam or dams sufficient to divert said waters onto the Northeast quarter of the Southeast quarter (NE 1/4 SE 1/4), and the Southeast quarter of the Southeast quarter (SE 1/4 SE 1/4), of Section Thirty Three (33), Township Five, (5) South, Range Eleven (11) East, B. M. Said dam and ditches to be maintained by the plaintiff in the same general situation they are now in."

The findings of fact support the decree. Our consideration of the case is therefore reduced to the issue as to whether or not the evidence is sufficient to support the finding and decree based thereon, as above set out.

We have examined the record of the testimony very carefully, and, while it is very meager and indefinite in some respects, we are not prepared to say that it is not sufficient to support the finding that the plaintiff's and his predecessor's "use of said waters . . . . has been continuous, uninterrupted, adverse and notorious and uninterfered with during all the times since appropriation, to-wit, since the year 1914, and has continued to be so used to this date (date of trial) except during the months of April, May, June and a portion of July of the year 1935. . . ."

The evidence is sharply conflicting, that on behalf of plaintiff being of positive character and that on behalf of defendants negative in character. In considering this evidence, the...

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