Harvey v. Deseret Sheep Co.

• Decision Date: 25 February 1925
• Citation: 234 P. 146,40 Idaho 450
• Parties: EARL HARVEY, Respondent, v. DESERET SHEEP COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

234 P. 146

40 Idaho 450

EARL HARVEY, Respondent, v. DESERET SHEEP COMPANY, a Corporation, Appellant

Supreme Court of Idaho

February 25, 1925

WATER RIGHTS-ADJUDICATION OF-TRUST-FINDINGS-REMEDY.

1. It is a well-established rule of equity that where one has acquired the legal title to property to which another has the better right equity will convert him into a trustee of the true owner and compel a conveyance of the legal title.

2. The trial court is only required to make findings with respect to such of the material issues, supported by the evidence, as are necessary to a determination of the cause.

3. The remedy provided by C. S., sec. 7036, is not exclusive.

APPEAL from the District Court of the Seventh Judicial District, for Adams County. Hon. B. S. Varian, Judge.

Action to establish a water right and for damages occasioned by the wrongful detention of water. Affirmed.

Affirmed. Costs to respondent.

L. L Burtenshaw and Frank T. Wyman, for Appellant.

The court is required to find upon every material issue in the case and its failure to do so is reversible error. (Carson v. Thews, 2 Idaho 176, 9 P. 605; First Nat. Bank v. Williams, 2 Idaho 670, 23 P. 552; Wood v. Broderson, 12 Idaho 190, 85 P. 490; Lorenzi v Star Market Co., 19 Idaho 674, 115 P. 490, 35 L. R. A N. S., 1142; Jensen v. Bumgarner, 25 Idaho 355, 137 P. 529; American Min. Co. v. Trask, 28 Idaho 642, 156 P. 1136; Berlin M. Works v. Dehlbom L. Co., 29 Idaho 494, 160 P. 746.)

J. W. Galloway and Harris, Stinson & Harris, for Respondent.

An owner of water appurtenant to lands has a right to distribute the water to respective purchasers of the land in such manner as such owner sees fit to do. (Hall v. Blackman, 8 Idaho 272, 68 P. 19.)

Property which comes into the hands of one, but which belongs to another, may be recovered in a suit in equity by such other. (People v. Houghtaling, 7 Cal. 348.)

One who acquires land or other property by fraud, misrepresentation, concealment or under any other such circumstances as renders it inequitable for such one to retain it is in equity regarded as the trustee of the party who suffers by reason of the fraud or other wrongful act, and who is equitably entitled to the property. (39 Cyc. 172.)

WM. E. LEE, J. William A. Lee, C. J., Budge and Givens, JJ., and Baum, District Judge, concur. Taylor, J., did not sit at the hearing and took no part in the decision.

OPINION

WM. E. LEE, J.

Margaret Krigbaum, the common predecessor of the parties to this action, was formerly the owner of the southeast quarter of section 34, township 17 north, range 1 west of the Boise Meridian, in Adams county (formerly a part of Washington county), and a water right as of May 1, 1884, of 50 miner's inches of the waters of Mill Creek, a tributary of the Weiser River, with a duty of water of three-fourths of a miner's inch of water, measured under a four-inch pressure, per acre. This water right was decreed to her by the district court of Washington county under date of July 25, 1906, in an action entitled Winkler et al. v. Young et al. Margaret Krigbaum conveyed 5 acres of the land and a water right of 2 miner's inches to one who is not a party to this action; and thereafter she conveyed the remainder of the quarter-section, together with a right to 48 miner's inches of water, to Cunningham and Olson. Olson thereafter conveyed to Cunningham, who thereafter conveyed 20 acres in the northeast corner of the quarter-section, together with a right to six and one-half miner's inches of water to Elza Harvey, the immediate predecessor in interest of respondent; and Cunningham conveyed the remainder of the quarter-section, being about 135 acres, and a right to forty-one and one-half miner's inches of water to one Martin, who conveyed to appellant. Subsequent to the decree hereinbefore referred to, which adjudicated the waters of Mill Creek alone, and prior to the conveyance to respondent, an action was instituted entitled Muir et al. v. Allison et al., herein referred to as the "Weiser River Suit," to adjudicate the waters of the Weiser River and its tributaries, including Mill Creek. Martin, the immediate predecessor in interest of appellant, was a party to the action and appeared and filed an answer and cross-complaint, in which he alleged that he was the owner of all the southeast quarter of section 34 and of the right to all the water appurtenant to said land (fifty miner's inches), as theretofore adjudicated in Winkler v. Young. Prior to the entry of the Weiser River decree, appellant was substituted in the action for Martin, and it was decreed that the Deseret Sheep Company, substituted for C. A. Martin, grantee of Margaret Krigbaum, was entitled to 41.67 inches of water for the said quarter-section, with a duty of water of five-eighths of a miner's inch of water, measured under a four-inch pressure, per acre, with priority of May 1, 1884. During the pendency of the Weiser River suit, respondent's predecessor, Elza Harvey, was the owner of the 20 acres hereinbefore referred to and of a water right appurtenant thereto, but he was not made a party to the action nor was summons served on him.

This cause was tried to the court without a jury. Oral and documentary evidence were introduced on behalf of the respondent but no evidence was offered on behalf of appellant. Findings of fact and conclusions of law were made in favor of respondent and a decree entered thereon, quieting his title to the water right claimed by him and directing a conveyance thereof to him by appellant. There was a second cause of action for damages based on the wrongful detention of water. On this second cause of action respondent recovered a judgment for $ 225. It is contended that the court erred in finding that respondent was the owner of a right to five and one-third inches of the waters of Mill Creek adjudged to appellant in the Weiser River decree. By the decree in Winkler v. Young there was awarded for use on the entire southeast quarter, fifty miner's inches of the waters of Mill Creek. Thereafter the owner of the quarter-section and of the water right conveyed to Elza Harvey, the grantor of respondent, twenty acres of the land, ". . . . together with Six and one-half miner's inches of the waters of Mill Creek, being a portion of the Waters heretofore adjudicated to the said Southeast Quarter . . . . under Decree of the district court . . . . for the county of Washington, Recorded. . . . " (The Winkler v. Young decree.)

The deed from Elza Harvey to respondent, in addition to a conveyance of the twenty acres of...