Hall v. Taylor
Decision Date | 24 April 1937 |
Docket Number | 6426 |
Citation | 67 P.2d 901,57 Idaho 662 |
Parties | FRANK HALL, Respondent, v. RAY TAYLOR and IVA TAYLOR, Husband and Wife, Appellants |
Court | Idaho 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.)
--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:
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...
To continue reading
Request your trial-
Maher v. Gentry
...to the owners of the land (Sec. 41-206, I.C.A.; Kennison et al. v. McMillan Sheep Co. et al., 46 Idaho 754, 270 P. 1062; Hall v. Taylor, 57 Idaho 662, 67 P.2d 901; Washington County Irr. Dist. v. Talboy, 55 382, 43 P.2d 943; Marshall v. Niagara Springs Orchard Co., Ltd., 22 Idaho 144, 125 P......
-
Jones v. McIntire
...to the owners of the land (sec. 41-206, I. C. A.; Kennison et al. v. McMillan Sheep Co. et al., 46 Idaho 754, 270 P. 1062; Hall v. Taylor, 57 Idaho 662, 67 P.2d 901; Washington County Irr. Dist. v. Talboy, 55 382, 43 P.2d 943; Marshall v. Niagara Springs Orchard Co., Ltd., 22 Idaho 144, 125......
-
West v. Smith
...740 (1941).29 See note 32 for the exception to this rule.30 Checketts v. Thompson, 65 Idaho 715, 152 P.2d 585 (1944); Hall v. Taylor, 57 Idaho 662, 67 P.2d 901 (1937); White v. Kamps, 119 Mont. 102, 171 P.2d 343 (1946); Northwest Cities Gas Co. v. Western Fuel Co., 13 Wash.2d 75, 123 P.2d 7......
-
Chester v. Wild Idaho Adventures RV Park, LLC, Docket No. 48363
...of right until the statutory period has run, which bars the true owner from either asserting or defending his right to the property. 57 Idaho 662, 668, 67 P.2d 901, 903 (1937) ; see also Nw. & Pac. Hypotheekbank v. Hobson , 59 Idaho 119, 124, 80 P.2d 793, 795 (1938) (applying the above rule......