Kelley v. Smith

• Decision Date: 21 March 1929
• Docket Number: 5055
• Citation: 47 Idaho 368,276 P. 302
• Parties: L. T. KELLEY, OTIS KELLEY and W. A. MABEY, Respondents, v. EDMOND W. SMITH, Appellant
• Court: Idaho Supreme Court

276 P. 302

47 Idaho 368

L. T. KELLEY, OTIS KELLEY and W. A. MABEY, Respondents, v. EDMOND W. SMITH, Appellant

No. 5055

Supreme Court of Idaho

March 21, 1929

APPEAL AND ERROR-EVIDENCE-PREPONDERANCE OF.

The determination of which way evidence preponderated was for the trial court.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Action to have easement for irrigation ditch established. Judgment for plaintiffs. Affirmed.

Judgment affirmed. Costs awarded to respondents.

J. W Taylor, for Appellant, cites no authorities on point decided.

Bothwell & Chapman, for Respondents.

The trial court, sitting as a court of equity in this case, made its findings of fact and based its judgment upon conflicting evidence, there being evidence to support both theories of the case, from which reasonable men might draw different conclusions, such findings of fact and judgment will not be disturbed by this court on appeal where they are supported by competent evidence, and the judgment must be affirmed. (Jones v. Vanausdeln, 28 Idaho 743, 156 P. 615; Viel v. Summers, 35 Idaho 198, 209 P. 454; Burrus v. Edward Rutledge Timber Co., 34 Idaho 606 202 P. 1067; Morrow v. Matthew, 10 Idaho 423, 79 P. 196; Stuart v. Hauser, 9 Idaho 53, 72 P. 719; Robbins v. Porter, 12 Idaho 738, 88 P. 86; Later v. Haywood, 15 Idaho 716, 99 P. 828; Snowy Peak Min. Co. v. Tamarack & Chesapeak Min. Co., 17 Idaho 630, 107 P. 60; Blackfoot State Bank v. Crisler, 20 Idaho 379, 118 P. 775; Weeter Lumber Co. v. Fales, 20 Idaho 255, Ann. Cas. 1913A, 403, 118 P. 289.)

GIVENS, J. Budge, C. J., and Wm. E. Lee and Varian, JJ., concur.

OPINION

GIVENS, J.

Respondents and their predecessors in interest constructed and used, until destroyed by appellant, a ditch through appellant's premises. This action was instituted to have it decreed that respondents have a prescriptively acquired easement for such ditch through appellant's premises; that appellant be restrained from interfering with the ditch; and for damages. The ditch was constructed after appellant had filed on the land through which it runs, but prior to occupancy thereof by appellant.

Respondents do not seriously contest that a permissive use cannot be the basis of a prescriptive right; nor that a permissive use cannot become adverse until the change in the user's attitude is brought (actually or constructively) to the knowledge of the owner; and that possession having begun in consistency with the rightful title, it must appear that its character has been changed; otherwise its possession will retain its original quality through any succession of occupants of the land and will be presumed to be in submission to the dominant interest; but they urge that a decision of the trial court resting on sufficient though conflicting evidence will not be disturbed, and that herein the evidence is sufficient to show an adverse use for the prescriptive period, known as such to appellant.

This court has announced as applicable herein the following doctrine:

An adverse claim based on occupation for...