Josslyn v. Daly

• Decision Date: 22 June 1908
• Citation: 15 Idaho 137,96 P. 568
• Parties: T. A. JOSSLYN, Respondent, v. M. J. DALY, Appellant
• Court: Idaho Supreme Court

96 P. 568

15 Idaho 137

T. A. JOSSLYN, Respondent, v. M. J. DALY, Appellant

Supreme Court of Idaho

June 22, 1908

EVIDENCE-DECLARATIONS AND ADMISSIONS OF GRANTOR-IRRIGATION-WATER RIGHTS, DITCHES AND CANALS APPURTENANT TO LAND-RES ADJUDICATA-WATERS TRIBUTARY TO A STREAM.

1. Statements and admissions by deed, mortgage or otherwise derogatory to his title or the interest previously conveyed made by a grantor, subsequent to parting with title, are not admissible against or binding upon the grantee, who had previously acquired the title to the property.

2. The vesting of title is determined by the legal effect of the terms of the grant, and cannot be controlled or affected by subsequent statements or declarations of the vendor.

3. A grant of a tract of land containing the clause "including all right, title, claim and interest in and to the waters of Seaman's creek and the irrigating ditches appurtenant thereto," carries with it all the waters and water rights that were appurtenant to the particular tract of land conveyed at the time of the execution and delivery of the conveyance, and the determination as to the amount of water and the extent of the water right so conveyed must depend wholly upon the extent of the appurtenant rights at the time of the conveyance.

4. A decree in an action between D. and J., adjudicating the respective rights and priorities of the parties to the waters of a certain stream for the irrigation of their respective ranches then owned and occupied by them, is not res adjudicata or binding upon D. as to his right to use certain of the waters of the same stream upon another tract of land as appurtenant thereto, which is purchased and acquired by D from a stranger to the action subsequent to the trial and decree in the action between D. and J.

5. A judgment and decree adjudicating rights and priorities to the use of the waters of a stream carries with it and adjudicates and decrees the rights and priorities to the waters of the tributaries to such stream above the respective places and points of diversion.

(Syllabus by the court.)

APPEAL from the District Court of the Fourth Judicial District for the County of Blaine. Hon. E. A. Walters, Judge.

Action by the plaintiff to obtain an adjudication and decree of his rights and priorities in and to the waters of Seaman's creek in Blaine county, and to quiet his title thereto. Judgment for plaintiff, and defendant appeals. Reversed.

Judgment reversed and a new trial granted. Costs awarded in favor of appellant.

Ensign & Ensign, and R. F. Buller, for Appellant.

Prior appropriation of all the water of a stream for irrigating purposes goes to the tributaries, and when this right once vests it must be protected and upheld. Rights cannot be acquired to the waters of springs situated along the channel of a stream and which constitutes a direct source of supply by entering on, cleaning out and thereby increasing the water supply, as against prior appropriators in good faith of all the waters of the stream. (Malad Irr. Co. v Campbell, 2 Idaho 411, 18 P. 52; Cole v. Richard's Irr. Co., 27 Utah 205, 101 Am. St. Rep. 962, 75 P. 376; Strickler v. Colorado Springs, 16 Colo. 61, 25 Am. St. Rep. 245, 26 P. 313.)

The common-law rule that the owner of land is absolute owner of percolating waters does not apply in the arid regions of the United States. (Katz v. Walkinshaw, 141 Cal. 116, 99 Am. St. Rep. 35, 70 P. 663, 74 P. 766, 64 L. R. A. 236; Southern Cal. Inv. Co. v. Wilshire, 144 Cal. 68, 77 P. 767.)

There was no privity whatever between Henry Riddle, as owner of the lower tract, and John Galbraith or Mrs. John Galbraith, as owner of the upper tract, and the Riddle water right never was attached nor appurtenant to the Galbraith land. (Chiatovich v. Davis, 17 Nev. 133, 28 P. 239.)

When a vendor sells land in two parcels to different vendees, they take the appurtenant water right, if there is any, in proportion to the amount of water previously used by the vendor on each. (Bloom v. West, 3 Colo. App. 212, 32 P. 846.)

Where a written contract is clear and free from ambiguity, parol evidence is inadmissible to vary its terms. (Liverpool etc. Ins. Co. v. Richardson, 11 Okl. 579, 69 P. 936; Drumm-Flato etc. Co. v. Barnard, 66 Kan. 568, 72 P. 257; Hale Bros. v. Milliken, 5 Cal.App. 344, 90 P. 365; Jacob v. Lorenz, 98 Cal. 332, 33 P. 119.)

The vesting of title is to be determined by the legal effect of the terms of the grant in a deed, and cannot be controlled by parol evidence. (Whitney v. Dewey, 10 Idaho 633, 80 P. 117, 69 L. R. A. 572; Riley v. North Star Min. Co., 152 Cal. 549, 93 P. 194; sec. 15, Rev. Stat. Ida.)

A judgment is conclusive between the parties, not only as to such matters as were in fact determined in the proceeding, but also as to every other matter which the parties might have litigated as incident to, or necessarily connected with, the subject matter of the litigation, whether the same, as a matter of fact, were or were not considered. (Denver City Irr. Co. v. Middaugh, 12 Colo. 434, 13 Am. St. Rep. 234, 21 P. 565; Spokane Valley Land & Water Co. v. Madson, 46 Wash. 640, 91 P. 1; Armijo v. Mt. Elec. Co., 11 N. M. 235, 67 P. 726; Freeman on Judgments, 3d ed., sec. 253.)

A lessee for years may sustain a suit for a perpetual injunction to prevent the diversion of water necessary for the enjoyment of the land. (Heilbron v. Fowler Switch Canal Co., 75 Cal. 426, 7 Am. St. Rep. 183, 17 P. 535.)

N. M. Ruick, and McFadden & Brodhead, for Respondent.

With the exception of Colorado, all the authorities hold that water rights are regarded as appurtenances to the land, and a deed of the land per se passes the water right, unless expressly reserved. (Frank v. Hicks, 4 Wyo. 502, 35 P. 475; Cave v. Crafts, 53 Cal. 135.) Some thirty cases from highest courts in the arid states in support of the above proposition are collected in a footnote on page 211, "Mills' Irrigation Manual, 1907."

Defendant having alleged in his cross-complaint that these springs are tributary to Seaman's creek, has the burden of proving that fact.

Unless these waters are shown to reach the creek in a well-defined channel, surface or subterranean, they cannot be considered tributary. Waters percolating generally through the soil beneath the surface are the property of the owner of the soil, but subterranean streams, flowing in natural channels between well-defined banks, are subject to appropriation under the same rule as surface streams. (Howard v. Perrin, 8 Ariz. 347, 76 P. 460; affirmed, 200 U.S. 71, 72, 21 S.Ct. 195, 50 L.Ed. 374.)

One has a right to dig trenches upon his own land for a useful purpose, although percolating waters are thereby diverted from a spring from which others derived a water supply and from which a natural stream of water had flowed, where his trenches do not intercept any natural stream, either surface or subterranean. (Southern P. Co. v. Dufour, 95 Cal. 615, 30 P. 783, 19 L. R. A. 92.)

It is only water flowing in a stream that a right to the use thereof may be acquired by appropriation in this state. (Acts Idaho Territory, 11th Sess., 1881, p. 267.) This provision taken from the first territorial statute authorizing appropriation of water has been re-enacted many times and is still the law.

The question in the former action of Daly v. Josslyn was: What were the rights of the parties with respect to the use of certain waters when that action was commenced? (Cave v. Crafts, supra.)

The finding of the court that the waters of the spring "never were and are not tributary to" Seaman's creek renders unnecessary a finding that the waters of said spring were not adjudicated. (Southern P. R. Co. v. Dufour, supra.)

AILSHIE, C. J. Sullivan, J., and Stewart, J., concur.

OPINION

AILSHIE, C. J.

This action involves the right to the use of a certain portion of the waters of Seaman's creek in Blaine county. The principal facts upon which the case rests are as follows Sometime about the year 1881, a man named Hank Riddle, and his wife, Jennie B. Riddle, located on a tract of unsurveyed public lands lying along the course of Seaman's creek, and which as then claimed comprised the lands now owned and occupied by both appellant and respondent. About the same time the next adjoining tract of land above that taken by Riddle was occupied and claimed by other settlers, and is and has been known and designated as the Cox-Kimbrough ranch. Riddle appropriated a part of the waters of Seaman's creek and diverted the same at a point just above the upper end of his ranch and used this water,--some in irrigating trees and some in raising his crops of alfalfa, vegetables and grain. Riddle died sometime prior to February 1, 1883. On the latter date his wife, Mrs. Riddle, gave notice of claim of water right from Seaman's creek "for the purpose of irrigating his ranch known as the Riddle ranch . . . . about one and one-half miles from Bellevue." Just here it should be remembered that at the time of giving this notice of claim to water right, the "Riddle ranch" was unsurveyed public lands, and as then claimed embraced the lands now owned and occupied by both the appellant and respondent, and adjoined the Cox-Kimbrough ranch on the west. Sometime during the year 1883 these lands were surveyed by the government, and it was thereupon discovered that the Riddle ranch embraced a great deal more land than could be claimed under one entry. The lower half of this tract on which the Riddle residence was situated was filed upon under either the homestead or pre-emption laws (and, for convenience, we will call it the homestead), and on June 16, 1883, Jennie B. Riddle filed on the upper half under the timber culture law. Sometime thereafter Mrs. Riddle married John...