Keiler v. McDonald

Citation37 Idaho 573,218 P. 365
PartiesFRED J. KEILER and CLEMONT KEILER, His Wife, and JOE D. KEILER and GERTRUDE KEILER, His Wife, Respondents, v. A. D. MCDONALD and AGNES MCDONALD, His Wife, Appellants
Decision Date31 July 1923
CourtUnited States State Supreme Court of Idaho

WATER AND WATER RIGHTS-SPRING ON GOVERNMENT LAND-SUBJECT TO APPROPRIATION-RIGHT TO PROTECT SAME.

1. The water of a spring situate wholly upon government land is subject to appropriation for beneficial use.

2. One who makes a filing upon any unoccupied public land takes the same subject to any vested and accrued water rights for domestic, mining, agricultural, manufacturing or other purposes which are recognized by the local laws, customs and decisions of courts.

3. One who acquires by appropriation the right to the use of the water of a spring situate wholly upon government land may restrain a subsequent patentee of such land, or his successor in interest, from any interference with the use of such water or the easement over which the same is conducted to his premises.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. John M. Flynn, Judge.

Action for an injunction. From judgment for plaintiffs, defendants appeal. Affirmed.

Judgment affirmed, with costs to respondents. Petition for rehearing denied.

Ezra R Whitla, for Appellants.

"A mere permissive use of the land of another is not adverse and cannot give an easement by prescription no matter how long it may be continued." (19 C. J. 887.)

"An easement by prescription cannot arise out of an agreement license or a mere neighborly accommodation, but must be acquired adversely." (Pinheiro v. Bettencourt, 17 Cal.App. 111, 118 P. 941.)

Use under permission never ripens into title. (Phoenix Ins Co. v. Haskett, 64 Kan. 93, 67 P. 446; Atchison, T. & S. F. Ry. Co. v. Conlon, 62 Kan. 416, 53 Am. St. 781, 63 P. 432; Friday v. Henah, 113 Iowa 425, 85 N.W. 768; Lambe v. Manning, 171 Ill. 612, 49 N.E. 509; Rose v. City of Farrington, 196 Ill. 226, 63 N.E. 631; Cleveland C. C. & St. L. Ry. Co. v. Munsell, 192 Ill. 430, 61 N.E. 374; Clarke v. Clarke, 133 Cal. 667, 66 P. 10; Brown v. Brown, 18 Idaho 345, 110 P. 269.)

Potts & Wernette, for Respondents.

"When a part of the public domain over which water of an appropriator is carried is conveyed by the government, it is burdened by the easement granted by the United States to the appropriator, who holds his right against the land under an express grant by the act of 1866." (Smith v. Hawkins, 110 Cal. 122, 42 P. 453.)

"This act is an unequivocal grant of a right of way over public lands of existing ditches and canals, for the purposes therein mentioned, and a recognition of a pre-existing right of possession." (Tynon v. Despain, 22 Colo. 247, 43 P. 1039; Broder v. Natoma Water etc. Co., 101 U.S. 274, 25 L.Ed. 790; Jennison v. Kirk, 98 U.S. 453, 25 L.Ed. 240; Hobart v. Ford, 6 Nev. 77.)

"This act recognizes the right of the prior appropriator of waters from the public domain, even as against the United States, and its grantees, if said appropriation was authorized by the statute of the state where the appropriation was made." (Osgood v. El Dorado Water etc. Co., 56 Cal. 571; Howell v. Johnson, 89 F. 556; Childs v. Sharai, 8 Idaho 378, 69 P. 111; Le Quime v. Chambers, 15 Idaho 405, 98 P. 415, 21 L. R. A., N. S., 76.)

One who has a water right and the right to a ditch or pipe-line to convey the water, under the state and federal statutes, has the right to change the course by means of which the water is being conveyed, with the consent of the servient tenant, and it does not thereby make him a licensee. (McQuire v. Brown, 106 Cal. 660, 39 P. 1060, 30 L. R. A 384; Ramelli v. Irish, 96 Cal. 214, 31 P. 41; Jacob v. Lorenz, 98 Cal. 322, 33 P. 110; Oliver v. Agasse, 132 Cal. 297, 64 P. 401.)

WILLIAM A. LEE, J. McCarthy, Dunn and William E. Lee, JJ., concur.

OPINION

WILLIAM A. LEE, J.

--This action was commenced by respondents against appellants to restrain them from interfering with their right to the use of the water of a certain spring and an easement claimed by them to conduct this water over appellants' lands to their lands. Appellants cross-complained, asking to have title to their land quieted in them as against such easement and right to the use of the water of this spring.

The cause was tried by the court, and it made findings of fact and conclusions and entered judgment thereon, confirming respondents' right to the use of the waters of said spring and of an easement over appellants' lands to conduct this water to their lands. It enjoined appellants from interfering with this right, and dismissed the cross-complaint. From this judgment defendants appeal.

The findings, which are supported by the evidence, are in effect as follows: That Fred J. Keiler, his wife Clemont Keiler, and Joe D. Keiler have for more than six years last past owned as tenants in common the E. 1/2 of the E. 1/2 of the N.W. 1/4 of sec. 34, T. 52 N., R. 5 W., B. M., in Kootenai county, Idaho; that they derived their title through certain mesne conveyances from David F. Finney, who homesteaded the land and obtained patent thereto from the government in 1903.

That appellants are the owners of the N. 1/2 of the N.E. 1/4 of said sec. 34, and derived their title thereto through certain mesne conveyances from Albert W. Francis, who homesteaded this land and received patent thereto from the government in 1908.

That there is a good spring of water, which rises on appellants' land and flows the entire year; that in 1896 said Finney, then being in possession of the land now owned by respondents, and who subsequently acquired patent to it from the government, appropriated all of the water of said spring, it being wholly upon the premises now owned by appellants, such premises then being unpatented government land, and conducted the same to his land; that said water from this spring has ever since been continuously used for domestic purposes and to irrigate the lands occupied by said Finney and his successors in interest, including respondents that such use has been continuous, open, notorious, exclusive and adverse by the original appropriator and his successors in interest since said use was begun in 1896, up to the present time, and said easement has also been continuously used during all of this time to convey this water over the premises of appellants, the water being first conducted by wooden conduits on the surface of the ground, but since 1904 has been conducted through iron pipes laid underground; that shortly before the commencement of this action appellants constructed a roadway over...

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8 cases
  • Joyce Livestock Co. v. U.S., 32278.
    • United States
    • United States State Supreme Court of Idaho
    • February 9, 2007
    ...(1921). Idaho has long recognized that an appropriator can obtain a water right in waters located on federal land. Keiler v. McDonald, 37 Idaho 573, 218 P. 365 (1923); Short v. Praisewater, 35 Idaho 691, 208 P. 844 (1922); Sarret v. Hunter, 32 Idaho 536, 185 P. 1072 (1919); Le Quime v. Cham......
  • Maher v. Gentry, 7365
    • United States
    • United States State Supreme Court of Idaho
    • November 21, 1947
    ......676; Basinger v. Taylor, 30 Idaho 289, 164 P. 522; Washington State. Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073;. Keiler et al. v. McDonald et al., 37 Idaho 573, 218. P. 365; Neil v. Hyde, 32 Idaho 576, 186 P. 710;. Rudge et al. v. Simmons et al., 39 Idaho 22, 226 P. ......
  • First State Bank of Alamogordo v. McNew
    • United States
    • Supreme Court of New Mexico
    • June 25, 1928
    ...manufacturing, or other purposes which are recognized by the local laws, customs, and decisions of courts." Keiler v. McDonald (1923) 37 Idaho 573, 218 P. 365. And it was held in that case that one owning such accrued and vested water right may restrain a subsequent patentee of such land fr......
  • Taylor v. O'Connell, 5545
    • United States
    • United States State Supreme Court of Idaho
    • January 9, 1931
    ...... 353, 98 P. 297; Gorrie v. Weiser Irr. Dist., 28. Idaho 248, 153 P. 561; Beasley v. Engstrom, 31 Idaho. 14, 168 P. 1145; Keiler v. McDonald, 37 Idaho. 573-577, 218 P. 365; Bower v. Kollemeyer, 31 Idaho. 712, 175 P. 964.). . . Where a. licensee has entered under ......
  • Request a trial to view additional results

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