Keyser v. Morehead

• Citation: 23 Idaho 501,130 P. 992
• Parties: SAMUEL K. KEYSER, Appellant, v. JAMES M. MOREHEAD et al., Respondents
• Decision Date: 04 March 1913
• Court: Idaho Supreme Court

130 P. 992

23 Idaho 501

SAMUEL K. KEYSER, Appellant, v. JAMES M. MOREHEAD et al., Respondents

Supreme Court of Idaho

March 4, 1913

COTENANTS-REPAIR OF COMMON PROPERTY-EXPENDITURES-CONTRIBUTION.

1. Where several parties construct a lateral ditch for the purpose of taking water from a main ditch to the lands of such parties for a beneficial use, and it is understood that sad lateral shall become the property of such persons in proportion to the quantity of water owned by each land owner and water is conveyed through said lateral ditch to such lands, such persons so constructing said ditch are co-owners and tenants in common, and are entitled to the use of the same for the carriage of water to irrigate their lands.

2. A tenant in common is entitled to contribution for expenditures absolutely necessary for the benefit and preservation of the common property and to charge the cotenants with their proportion of the reasonable expenses incurred fairly and in good faith for the benefit of the common property.

3. Where a lateral ditch has been constructed by several persons as co-owners, and it becomes necessary to repair said ditch and all the co-owners agree upon the improvement, and such improvement is made by all the co-owners except one, who does not contribute to the same, and such improvement is used as a part of the ditch, and permission is given to the cotenant who refused to contribute to use said ditch for one year, and thereafter he demands his water through said pipe-line and through the said ditch, and offers to pay his share, the co-owners who constructed the same cannot deprive him of his interest in said canal and the portion improved by the pipe, upon his paying his share of such expenses.

APPEAL from the District Court of the Seventh Judicial District for Washington County. Hon. Ed. L. Bryan, Judge.

Action to establish a right and title to improvements in a lateral ditch. Judgment for defendants. Reversed.

Judgment reversed and a new trial ordered.

L. L. Feltham and Frank D. Ryan, for Appellant.

The general rule in regard to the right of possession by co-owners of an undivided interest in real estate is that no one of them has the right to keep the others out of any part of the estate. (Jones on Landlord and Tenant, sec. 28, p. 24.)

Cotenant owners of an estate in lands stand in a relation to each other of mutual trust and confidence, and neither will be permitted to act in hostility to the other in reference to the joint estate, and a distinct title acquired by one will ordinarily inure to the benefit of all. (Arthur v. Coyne, 32 Okla. 527, 122 P. 688.)

Where several persons are tenants in common in an irrigation ditch and dam at its source, each is responsible in proportion to his interest for the maintenance and repair of the dam and ditch, and in case of default of one or more, the other may make the repairs for which the defaulting party is liable for his pro rata, but such a failure by one does not justify another in making up the loss occasioned by drawing off the water from the former. (Carnes v. Dalton, 56 Ore. 596, 110 P. 170.)

Where there was no proof that repairs made by the tenant in possession were necessary, or that improvements made added to the rental or permanent value of the premises, no allowance could be made therefor. (Armijo v. Neher, 11 N. M. 645, 72 P. 12.)

Being associated in interest as tenants in common, an implied obligation exists to sustain the common interest. This reciprocal obligation will be enforced in equity as a trust. (Freeman on Cotenancy and Partition, 2d ed., sec. 151.)

Harris & Smith, for Respondents, cite no authorities.

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

This action was brought by the appellant against the defendants for the purpose of establishing his right and interest in a certain pipe-line to the extent of twenty miner's inches, upon plaintiff's paying into court his proportional share of the expense of purchasing and laying said pipe-line. The defendants by their answer put in issue the allegations of the complaint.

It appears from the record that the appellant and the respondents own lands in the same neighborhood, and that such parties have been taking water from what is known as the Lower Payette Ditch and its extensions, and that such water has been carried from the main ditch to the lands of the parties to this action through one lateral ditch; that the land over which this lateral passes is of such a character as has made it necessary to build a flume or pipe for a distance of about one thousand feet. When the lateral ditch was first constructed a flume was built across this portion of the line of the lateral, which was used by all the parties for the purpose of carrying water to their said lands from the main ditch, and it served such purpose up to and including the year 1910.

The lands of the parties to this action were below and beyond the flume, and below the point where the pipe-line delivered the water to the lateral below the depression, where the same water was delivered from the lateral into the pipe-line. There is no dispute between the parties as to the respective rights of the different parties to convey water through the lateral from the main ditch to the lands each owned and described in the pleadings in this case.

In the latter part of 1910 the flume, from long use, became unserviceable, and would not carry the water through it so as to supply the necessary water upon the lands of both plaintiff and the defendants, and the defendants proposed among themselves, and submitted such proposition to the plaintiff, that the flume should be removed and that a pipe-line be constructed by all parties across the depression the full span of the old flume. The evidence is conflicting as to whether the plaintiff consented with the defendants and agreed to this arrangement. Nevertheless, the defendants determined in December, 1910, that the old flume over the depression was not sufficient to carry the water and removed the old wooden flume and constructed the pipe-line across the depression. After the pipe-line was constructed and was finished, in May, 1911, and water was being carried through the same, the appellant requested the right to carry through the pipe the amount of water he had previously been using upon his land the same as it had been carried through the old flume, and upon such request he was permitted to carry the water through the pipe-line during the year 1911. Thereafter, in April, 1912, the appellant asked permission to purchase an interest in the pipe-line and this was refused. In this connection it is proper to observe that the company owning the lateral ditch, of which the flume was a part, was not the owner of the land occupied by the old flume, the land where the pipe-line is...