Harris v. Chapman

• Decision Date: 24 November 1931
• Docket Number: 5567 and 5649
• Citation: 5 P.2d 733,51 Idaho 283
• Parties: ANNIE I. HARRIS, Respondent, v. SEWELL H. CHAPMAN et al., Respondents, and UNION CENTRAL LIFE INSURANCE COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

5 P.2d 733

51 Idaho 283

ANNIE I. HARRIS, Respondent, v. SEWELL H. CHAPMAN et al., Respondents, and UNION CENTRAL LIFE INSURANCE COMPANY, a Corporation, Appellant

Nos. 5567 and 5649

Supreme Court of Idaho

November 24, 1931

WATER AND WATERCOURSES-APPROPRIATION-WATER OF SPRINGS ON PRIVATE LAND-CONSENT OF OWNER-CONTINUOUS USE-PRESUMPTION-CONVEYANCE-MORTGAGE-ACTION TO DETERMINE PRIORITY-BURDEN OF PROOF-ABANDONMENT OF RIGHT-CHANGE IN POINT OF DIVERSION-APPROVAL OF DEPARTMENT OF RECLAMATION-COSTS.

1. Court need not make findings on issues unnecessary to determination of case.

2. Defendant, in action to quiet title to water right, could not question right of plaintiff and predecessors to appropriate waters of springs on county poor farm, where land owner was not complaining.

3. Waters of springs may be appropriated with consent of owner of land on which springs are situated.

4. Presumption from long-continued use of waters of springs without land owner's objection is that water was validly appropriated and used.

5. Action to ascertain, determine, and decree extent and priority of right to use of water partakes of nature of action to quiet title to realty, and defendant must rely on strength of its own title, not weakness of adversary's.

6. Owner may convey part of land together with part of appurtenant water right, and similarly may mortgage all or any part of water right appurtenant to mortgaged land.

7. Mortgagee's water right for ranch held fixed by mortgage and limited to recitals therein, notwithstanding subsequent so-called correction deed purporting to increase water right.

8. General appurtenance clause in deeds, ostensibly including all tenements, hereditaments and appurtenances, did not enlarge specific water right described therein.

9. Change of place of use of decreed water right to lands other than those whereon water right was formerly used does not constitute "abandonment."

10. That land owner and successors used specified quantity of water on ranch when water was available and necessary for proper cultivation sufficiently showed intention to make such quantity appurtenant to ranch.

11. Change in point of diversion without reclamation department's approval does not forfeit water right.

12. Cost bill, unless filed within statutory time, will be stricken (C. S., sec. 7218).

13. Findings and conclusions are ordinarily "decision of court" within statute requiring filing and serving of cost bill after notice thereof (C. S., sec. 7218).

14. Attorney's receiving formal findings and conclusions signed and mailed by judge held actual "notice" of court's decision within statute requiring filing of cost bill (C. S., sec. 7218).

15. Assigned errors which are not argued and not supported by citation of authorities will be disregarded.

APPEAL from the District Court of the Fourth Judicial District, for Blaine County. Hon. Jay L. Downing, Judge.

Action to quiet title to water right. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondents. Petition for rehearing denied.

McElroy & Chalfant and Wm. A. Brodhead, for Appellant.

The place of diversion of adjudicated water cannot be changed by the water-master, except pursuant to authority from the Department of Reclamation. (C. S., sec. 5582; Walker v McGinness, 8 Idaho 540, 69 P. 1003.)

"Such conditions must be imposed on a water user who seeks to exercise the right to change his point of diversion as will prevent injury to other appropriators." (Basinger v. Taylor, 36 Idaho 591, 211 P. 1085.)

Water from springs is in the same class as developed water and claimant must establish his right thereto by convincing evidence as against appropriators from the stream to which the spring is naturally tributary.) (Josslyn v Daly, 15 Idaho 137, 96 P. 571.)

A. F. James, L. M. Bresnahan and J. J. McFadden, for Respondents.

A change in the point of diversion made without the approval of the state engineer does not forfeit the water right. ( Joyce v. Rubin, 23 Idaho 296, 130 P. 793.)

A change of place of use of decreed water to lands other than those upon which such water right was formerly used does not constitute abandonment. (Joyce v. Murphy Land & Irr. Co., 35 Idaho 549, 208 P. 241.)

A change in the point of diversion does not affect the appropriation. (Thomas v. Ball, 66 Mont. 161, 213 P. 597; Greer v. Heiser, 16 Colo. 306, 26 P. 770, par. 3, of the syllabus.)

Statutory procedures for a change of point of diversion are purely remedial and the right to change the point of diversion is one of the incidents of ownership and exists prior to and independent of statute. (Lower Latham Ditch Co. v. Bijou Irr. Co., 41 Colo. 212, 93 P. 483, at 484; Twin Falls Canal Co. v. Shippen, 46 Idaho 787, 271 P. 578.)

In case any water user objects to the change on the ground that such change will injure him this is a matter of defense and must be established by him. (2 Kinney on Irrigation, p. 1538, par. 873; Jacob v. Lorenz, 98 Cal. 332, 33 P. 119.)

Section 1412 of the Civil Code of California is identical with C. S., sec. 5563.

The inherent right under our Constitution and laws to own, hold and dispose of all or any portion of our property, either as a whole or in parts, permits the sale and transfer of a water right separate from the land. (2 Kinney on Irrigation and Water Rights, p. 1816; Hard v. Boise City Irr. & Land Co., 9 Idaho 589, 76 P. 331, 65 L. R. A. 470.)

A water right, although it may be in fact appurtenant to the land, may be reserved by the grantor, who may then transfer the water claimed under the right to some other land. (2 Kinney on Irrigation and Water Rights, p. 780, note 2.)

Where a deed to land specifically mentions a definite amount of water, any amount in excess thereof is reserved even though the deed also contains the usual provision "together with the tenements, hereditaments, and appurtenances thereunto belonging, etc." (Lensing v. Day & Hansen Security Co., 67 Mont. 382, 215 P. 999; Kofoed v. Bray, 69 Mont. 78, 220 P. 532; Kinney on Irrigation, sec. 1006; Davis v. Randall, 44 Colo. 488, 99 P. 322; Fogus v. Ward, 10 Nev. 267; 5 Morr. Min. Rep. 1.)

BUDGE, J. Lee, C. J., and Givens, Varian and McNaughton, JJ., concur.

OPINION

BUDGE, J.

This action was brought to quiet title to the use of certain waters. The following brief history of the water rights and lands involved, as disclosed by the record, will furnish a foundation for the disposal of the questions presented:

July 10, 1884, R. F. Buller, and Rosa B. Buller, his wife, appropriated and diverted through a ditch constructed by them, known and hereinafter referred to as the Whitton ditch, 780 miner's inches of the waters of Big Wood River. By decree dated December 13, 1909, in the case of S.C. Frost et al. v. Alturas Water Company et al. that amount of water from Big Wood River, with date of priority July 10, 1884, was decreed, together with other waters not involved here, to R. F. Buller and Rosa B. Buller, the lands to which said water was appurtenant not being specified. That decree is hereinafter referred to as the "Frost Decree" and the water right as the "Buller water right." For a number of years prior to the Frost decree said Buller water right had been used for the irrigation of a ranch owned by Buller and wife, afterward acquired by appellant, known as the Whitton Ranch, now consisting of approximately 109 acres, and upon other lands owned by them. May 7, 1909, prior to the Frost decree, Buller and wife conveyed the Whitton Ranch to one, Robert H. Wright, together with all of the water from the Whitton ditch that should be decreed to the said land for irrigation and domestic use and also a proportionate interest in said ditch. Certain other water rights were transferred by Buller and wife to various persons whose rights were decreed by the lower court upon stipulation and are not involved here. After such transfers and on July 12, 1909, Buller and wife conveyed to Annie I. Miller (afterward Annie I. Harris, hereinafter referred to as "respondent") all of their right, title and interest in and to the Whitton ditch and water rights conveyed therein. At that time respondent owned a ranch comprising some 630 acres known as the Harris Ranch, which on March 22, 1913, respondent conveyed with the appurtenant water right to her son, Douglas C. Miller. On August 8, 1913, Douglas C. Miller purchased the Whitton Ranch and the appurtenant water right, thus acquiring and merging the water rights of the two ranches and thus carrying out the purpose, as testified to by him, of controlling the water rights in the Whitton ditch.

Subsequently the following transfers of the Whitton Ranch were made:

October 11, 1918, Douglas C. Miller and respondent executed and delivered to appellant a real estate mortgage covering the Whitton Ranch and a water right specifically described therein as follows:

"Together with a full primary water right of One Hundred fifty (150) inches of water from the Big Wood River, dating from the year 1884 and appurtenant to said land, and all irrigation ditches used in connection therewith."

August 9, 1919, Douglas C. Miller conveyed said Whitton Ranch to respondent by quitclaim deed containing the following recitals:

"Together with any and all water rights, ditches and canals belonging to the said land."

March 29, 1922, respondent conveyed the Whitton Ranch to J. W. Meller by quitclaim deed including a water right described as follows:

"Together with all water, water rights appurtenant to said land. Together with all improvements, privileges and appurtenance thereunto belonging, together with reservoir rights, ditch and water rights of every nature, with all rights of way for conveyance of water to land, used on, or...