Keiler v. McDonald

• Court: United States State Supreme Court of Idaho
• Writing for the Court: WILLIAM A. LEE, J.
• Citation: 37 Idaho 573,218 P. 365
• Decision Date: 31 July 1923
• Parties: FRED 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

218 P. 365

37 Idaho 573

FRED 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

Supreme Court of Idaho

July 31, 1923

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.

[37 Idaho 574]

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

[37 Idaho 575] WILLIAM A. LEE, J.

--This action was commenced...