Joyce v. Rubin

• Citation: 23 Idaho 296,130 P. 793
• Parties: MATTHEW JOYCE and ANNA JOYCE, Respondents, v. JACOB RUBIN et al., Respondents, and MURPHY LAND & IRRIGATION CO., LIMITED, Appellant
• Decision Date: 30 January 1913
• Court: United States State Supreme Court of Idaho

130 P. 793

23 Idaho 296

MATTHEW JOYCE and ANNA JOYCE, Respondents, v. JACOB RUBIN et al., Respondents, and MURPHY LAND & IRRIGATION CO., LIMITED, Appellant

Supreme Court of Idaho

January 30, 1913

WATERCOURSE-WATER RIGHTS-ADJUDICATION OF-PLEADINGS-AMENDMENTS-PROOF-THEORY OF THE CASE-DUTY OF WATER-LOCATION NOTICE-POSTING OF-DIVERSION-CHANGE OF PLACE-ABANDONMENT-CROSS-COMPLAINT-DENIALS-IMMATERIAL ALLEGATIONS-AMOUNT OF WATER REQUIRED-DECREE-AMENDMENT OF-RECLAMATION OF LAND-DILIGENCE IN.

(Syllabus by the court.)

1. In an action to determine and settle the priorities and amount of water to which each party to a suit is entitled from a certain stream, it is left to the court to determine from the evidence such priorities and amounts.

2. Each party by way of complaint or cross-complaint is required to set up the ultimate facts upon which his claim of right is based, and it is the duty of the court to make its finding of facts upon the evidence, and if the allegations of the pleading do not conform to the proof offered, the court may direct the pleadings to be amended to conform to such proof.

3. Held, that the trial in this case was conducted as is customary in water suits, and upon the theory that all parties submitted to the court evidence of the dates of the appropriation of water and of the amounts to which they were entitled.

4. Under the provisions of sec. 4225, Rev. Codes, no variance between the allegations of the pleading and the proof is to be deemed material unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits.

5. Sec 4226, Rev. Codes, provides that where the variance is not material, the court may direct the fact to be found according to the evidence, or may order an immediate amendment.

6. Where the cross-complaint is not answered and the cross-complainant proceeds to trial without objection, as though an answer had been filed, he thereby waives the answer.

7. Held, the record shows that the action was tried upon the theory that all of the material allegations of the complaint and cross-complaints were put in issue.

8. Under the provisions of sec. 4306, Rev. Codes, in an action to determine the priority and amount of water to which each party to the action is entitled, if default is taken against any of the parties, evidence must be taken to establish the material allegations of the complaint or cross-complaint.

9. Held, that certain denials were sufficient.

10. Where it is alleged that it requires 1,500 inches of water to irrigate a tract of land consisting of 480 acres, and the court finds that the party is not entitled to water for more than 162.65 acres and awards 610 inches, or about four inches to the acre, therefor, and such award is sustained by the evidence, the action of the court will not be reversed.

11. Where a party has constructed his ditches and diverted water and irrigated his land for a number of years, and thereafter posts and files for record location notices, his right dates from the time of his appropriation and not from the date of posting such notices.

12. Held, under the evidence that the cultivated area of the Bennett ranch was increased from year to year, and that they were entitled to the full amount of water awarded them by the trial court.

13. Under the provisions of sec. 3247, Rev. Codes, a person entitled to the use of water may change the point of diversion if others are not injured by such change, and such change does not work a forfeiture or is not an abandonment of such right.

14. Where it is alleged by one cross-complainant that it requires 400 inches of water to properly irrigate her land, that being about four inches to the acre, and another cross-complainant alleges that it requires only five-eighths of an inch to properly irrigate such land, the amount actually required is put in issue by such pleadings.

15. The ultimate facts to be established under the pleadings were the priority and the amount of water to which each of the parties to the suit is entitled.

16. Immaterial allegations or averments in a pleading are not admitted by failure to deny them.

17. The respondents Joyce acquired title to certain lands formerly owned by their father, who had appropriated water for the irrigation of such land, and where they do not ask in their complaint to have the water to which they are entitled allotted to each separately, it is not error for the court to decree to them jointly the entire amount of water necessary for the irrigation of their land.

18. Held, that the respondents Joyce are entitled only to the amount of water awarded to them at the head of their ditch less the amount of water which flows from a certain spring situated on their land.

19. Held, that the decree must provide that when the natural flow of the stream is not sufficient to furnish the respondents with the full amount of water awarded to them, they should have only the amount furnished from the natural flow of the stream, each taking according to the priority of his right.

20. Held, under all of the facts of this case that the respondents have proceeded with reasonable diligence to reclaim the land for which water has been decreed to them.

APPEAL from the District Court of the Third Judicial District for Owyhee County. Hon. Alfred Budge, Presiding Judge.

Action to settle the priority and amount of water to which the parties are entitled from Sinker creek, for irrigation purposes. Judgment modified.

Decree amended.

C. S Polk, for Appellant.

Some of the defendants allege in their cross-complaints that they are entitled to a certain quantity of water per acre for irrigation of their land, while the decree gives them much more than is asked for in their cross-complaints. ( Caldwell v. King, 76 Ala. 149.; Enright v Seymour, 8 N.Y. 356; Ten Broeck v. Orchard, 79 N.C 518.)

The Bennetts acquired no rights whatever by reason of the appropriation of water nine years before they constructed a ditch for the use of the water and nine years before the water was actually diverted. (Ison v. Sturgill, 57 Ore. 109, 109 P. 579, 110 P. 535; Ophir Silver Min. Co. v. Carpenter, 4 Nev. 534, 97 Am. Dec. 550; Cole v. Logan, 24 Ore. 304, 33 P. 568; Hindman v. Rizor, 21 Ore. 112, 27 P. 13; Seaweard v. P. Livestock Co., 49 Ore. 157, 88 P. 963; Kendall v. Joyce, 48 Wash. 489, 93 P. 1091; Long on Irrigation, sec. 41.)

By a change of point of diversion after the rights of appellant had attached, the Bennetts lost their priority to the use of water for the lands covered by the old ditch which was then abandoned. (Walker v. McGinness, 8 Idaho 540, 69 P. 1003.)

In the case of Hall v. Blackman, 8 Idaho 272, 68 P. 19, this court held that fourteen years was not an unreasonable time in which to put a tract of land under irrigation, but the decision will hardly suffice in this case, where plaintiffs ask an extension of time for forty-six years in which to reclaim the land. (Bennett v. Nourse, 22 Idaho 249, 125 P. 1038; Cole v. Logan, supra; Hindman v. Rizor, supra; Seaweard v. Pacific Livestock Co., supra; Kendall v. Joyce, supra; Weldon Valley Ditch Co. v. Farmers' Pawnee Canal Co., 51 Colo. 545, 119 P. 1056.) Economical use of water must be enforced. (State v. Twin Falls Canal Co., 21 Idaho 410, 121 P. 1039; Farmers' etc. Ditch Co. v. Riverside Irr. Dist., 16 Idaho 525, 102 P. 481.)

The evidence shows that there would be ample water from the spring alone to irrigate all lands lying below such spring, so that instead of requiring the delivery at the head of the ranch of a sufficient amount of water to irrigate the entire ranch the amount of water available for all lands lying below the house should be deducted from the amount of water to be delivered at the head of the ranch. ( Vogel v. Minnesota Canal & Reservoir Co., 47 Colo. 534, 107 P. 1108; Whited v. Cavin, 55 Ore. 98, 105 P. 396.)

Richards & Haga and McKeen F. Morrow, for Respondents Bennetts.

The trial court is not only warranted in directing an amendment to the pleadings to conform to the proofs, after submission, but it is the duty of the court to do so whenever necessary to prevent a mistrial. (Secs. 4225, 4226, Rev. Codes; Hedstrom v. Union Trust Co., 7 Cal.App. 278, 94 P. 386; Stiles v. Hermosa etc. Co., 8 Cal.App. 352, 97 P. 91; Myers v. Holton, 7 Cal.App. 114, 98 P. 197; Hancock v. Board of Education, 140 Cal. 554, 74 P. 44; Iverson v. McDonnell, 36 Wash. 73, 78 P. 202.)

Where plaintiff goes to trial upon an answer without objecting to the form or sufficiency of the denial, and gives evidence in support of the allegation as though the denial were sufficient, and does not suggest upon the trial that the denial is defective, he will be deemed to have waived the objection. (3 Ency. L. & P. 1358, and cases there cited; Loftus v. Fischer, 106 Cal. 616, 39 P. 1064; Kansas & A. V. Ry. Co. v. Dye, 70 F. 24, 16 C. C. A. 604; Wire v. Foster, 62 Iowa 114, 17 N.W. 174.)

Under the laws in force June 1, 1898, relative to the appropriation of water by posting and recording notice, an appropriation was complete upon the completion of the ditch constructed in compliance with the statutory provisions governing such appropriations, and such appropriation was not dependent upon the application of the water to beneficial use. (Secs. 3160-3163, Rev. Stats. 1887; Sess. Laws 1895, p. 175; Bailey v. Tintinger, 45 Mont. 154, 122 P. 575; Wiel on Water Rights, 3d ed., secs. 395, 396.)

"An appropriator may add from year to year acreage to his cultivated land, and increase his application of water thereto for irrigation as his necessities may demand, as his abilities permit, until he has put to a beneficial use the entire amount of water at first diverted by him and conducted to the point of...