Head v. Merrick

• Decision Date: 25 February 1949
• Docket Number: 7463
• Citation: 203 P.2d 608,69 Idaho 106
• Parties: HEAD et ux. v. MERRICK et al
• Court: Idaho Supreme Court

203 P.2d 608

69 Idaho 106

HEAD et ux. v. MERRICK et al

No. 7463

Supreme Court of Idaho

February 25, 1949

Rehearing Denied March 21, 1949.

Rehearing Denied March 21, 1949.

Appeal from District Court, Fourth Judicial District, Blaine County D. H. Sutphen, Judge.

Modified and cause remanded with instructions.

Everett B. Taylor, of Hailey, and Bissell & Bird, of Gooding, for appellants.

Uninterrupted continuous use of property in ordinary and customary manner for prescriptive period raises presumption that such use was adverse and under claim of title and is sufficient to establish adverse possession of property; "Use of property in the ordinary and customary manner is sufficient to establish adverse possession." Pfleuger v. Hopple, 66 Idaho 152, 156 P.2d 316; (and authorities therein cited); Taylor v. O'Connell, 50 Idaho 259, 295 P. 247; McGlochlin v. Coffin, 61 Idaho 440, 103 P.2d 703.

To perfect title to property by adverse possession the true owner need not have actual knowledge or notice of adverse claim, but adverse claimant's open and notorious possession of property under claim of title is sufficient, whether true owner knows facts or not, and such claimant need not otherwise repudiate title of other claimants of property or notify them of his claim of title; "if the (true) owner fails to look after his interests until the title of the adverse claimant grows into maturity he has no one but himself to blame for the loss of his estate." Pfleuger v. Hopple, 66 Idaho 152, 156 P.2d 316; (and authorities therein cited).

James, Shaw & James, of Gooding, and Joseph J. McFadden, of Hailey, for respondents.

A right to the use of water may be acquired by prescription only when accompanied by such possession and use as excludes other claimants from the use thereof. Pence v. Schivers, 40 Idaho 181(1), 232 P. 568; Brossard v. Morgan, 7 Idaho 215(3), 61 P. 1031.

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. Village of Fairview v. Franklin Maple Creek Pioneer Irr. Co., 59 Idaho 7, on page 17, 79 P.2d 531; Graham v. Leek, 65 Idaho 279, on page 290, 144 P.2d 475; Brossard v. Morgan, 7 Idaho 215 (3), 61 P. 1031, approved in Pence v. Schivers, 40 Idaho 181, on page 185, 232 P. 568; Hall v. Blackman, 8 Idaho 272, at page 283, 68 P. 19; Galiger v. McNulty, 80 Mont. 339, 260 P. 401(16); St. Onge v. Blakely, 76 Mont. 1, 245 P. 532(8).

Givens, Justice. Holden, C. J., Porter, J., and Glennon and Baker, District Judges, concur.

OPINION

Givens, Justice.

Appellants brought suit to quiet title to the following described property in Blaine County, Idaho:

"E 1/2 NW 1/4, NW 1/4 NE 1/4, NE 1/4 SW 1/4 and Lots 3 and 4 of Sec. 30, Twp. 2 N. R. 19 E B.M.; SE 1/4 SE 1/4 of Sec. 25, Lot 1 and that part of Lot 4 lying north of the Muldoon road (as the same is now located) of Sec. 36, Twp. 2 N. R. 19 E. B.M., together with all appurtenances, including the following ditch and water rights: Full primary water right for 150 acres of said land from Slaughter House Creek, with dams and ditches used therewith; waters from certain springs arising on and near said lands, with dams and ditches used therewith; and 40 inches of the waters of Big Wood River decreed to W. T. Riley, with priority of March 24, 1883, under the terms of the decree in the case of Frost vs. Alturas Water Company, which decree bears date December 13, 1909, and appears of record in book 6, page 447, of the records of judgments of said Blaine County, together with pro rata interest in all ditches, headgates and diversion works whereby said water is conveyed to the lands of the plaintiffs, including pro rata interest in ditch and diversion works heading in what is commonly known as the Miller ditch at about midway between the towns of Hailey and Bellevue, Idaho, and coursing thence in a generaly Sely direction to and across Block 86 of the Townsite of Bellevue, and also including diversion works and ditch leading from said Miller ditch at said Block 86 to and upon said lands of plaintiffs."

Paragraph 2 of respondents' answer alleged respondents admit they claim and assert an interest in the complaint adverse to the plaintiffs', thus the answer did not raise a definite issue, but the transcript shows that upon the trial of the case there was clearly but one issue which was in dispute and tried, and that was with regard to appellants' claim they had, by adverse possession as against respondents Merricks, acquired 40 inches of the waters of Big Wood River with a priority of March 24, 1883. In other words, respondents did not dispute appellants' title to the land claimed by them or the other water rights.

To perfect an adverse claim for water ripening into title, the claimant must:

"* * * show that his use of the water...