Koon v. Empey

Citation40 Idaho 6,231 P. 1097
PartiesF. L. KOON, Respondent, v. JOHN EMPEY, Watermaster of District No. 36, O. H. OLIVE, C. H. DECAMP, and the HARRISON CANAL COMPANY, a Corporation, Appellants
Decision Date05 December 1924
CourtUnited States State Supreme Court of Idaho

DEEDS-CONSTRUCTION OF-INTENT OF PARTIES-PAROL EVIDENCE-ADMISSIBILITY - WATER RIGHTS - APPURTENANCE - ADVERSE POSSESSION-FINDINGS.

1. It is an elementary rule for the construction of deeds, the language of which is plain and unambiguous, that, in the absence of fraud or mistake, the intention of the parties must be ascertained from the instrument itself.

2. A water right becomes appurtenant to land to which it has been applied and upon which the water has been used for irrigation.

3. In the absence of a specific reservation to the contrary contained therein, a deed of conveyance of land, containing the usual appurtenance clause, effects a conveyance of a water right appurtenant to the land.

4. One cannot acquire title to a water right by adverse possession by using water from a stream without diminishing the supply of the owner of the right where there is no evidence of any intention or claim inconsistent with the title of the owner.

5. A trial court is not required to make findings on issues unnecessary to a determination of the cause.

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. O. R. Baum, Judge.

Suit to quiet title to a water right. Decree for plaintiff. Affirmed.

Affirmed.

Harry Holden and Stevens & Downing, for Appellants.

Whether a water right is conveyed by a conveyance of real estate is determined by the intention of the parties at the time of such conveyance. (Paddock v. Clark, 22 Idaho 498 126 P. 1053; Russell v. Irish, 20 Idaho 194, 118 P 501; City and County of Denver v. Brown, 56 Colo 216, 138 P. 44; Talbot v. Joseph, 79 Ore. 308, 155 P. 184.)

The appellants, under the evidence of this case, were entitled to a decree upon the doctrine of adverse user for the statutory period. (Cheda v. Southern P. Co., 22 Cal.App. 373, 134 P. 717; Hudson v. Dailey, 156 Cal. 617, 105 P. 748.)

The respondent, by reason of abandonment, lost whatever right he may have had in and to said water. (North Amer. Explor. Co. v. Adams, 104 F. 404, 45 C. C. A. 185; Thorp v. McBride, 75 Wash. 466, 135 P. 228.)

Identification of water claimed by respondent must be definite and certain. (Reno v. Richards, 32 Idaho 1, 178 P. 81.)

Where the pleadings supplant an issue and there is a dispute in the evidence as to the facts, the court, on request, is obliged to make a finding on such issue of fact. (Davis v. Devanney, 7 Idaho 742, 65 P. 500; Stoneburner v. Stoneburner, 11 Idaho 603, 83 P. 938; Brown v. Macey, 13 Idaho 451, 90 P. 339; Later v. Haywood, 14 Idaho 45, 93 P. 374; First Nat. Bank v. Williams, 2 Idaho 670, 23 P. 552; Frederickson v. Deep Creek Irr. Co., 15 Idaho 41, 96 P. 117; Uhrlaub v. McMahon, 15 Idaho 346, 97 P. 784.)

O. A. Johannesen, for Respondent.

One cannot acquire a prescriptive right to the use of a definite quantity of water, adverse to the claim of another, unless the person claiming such adverse right has been in actual, open, notorious, distinct, exclusive and continuous possession thereof, for the period prescribed by the statute, and has paid the taxes thereon. (Green v. Christie, 4 Idaho 438, 40 P. 54; Bower v. Kollmeyer, 31 Idaho 712, 175 P. 964; Faulkner v. Rondoni, 104 Cal. 140, 37 P. 883; Logan v. Guichard, 159 Cal. 592, 114 P. 989; Ball v. Kehl, 95 Cal. 606, 30 P. 780; 1 Cal. Jur. 584; C. S., secs. 6602, 6603.)

"Water being essential to the industrial prosperity of the state, and all agricultural development throughout the greater portion of the state depending upon its just apportionment . . . the right to the use of any of the public waters . . . shall become the complement of, or one of the appurtenances of the land or other thing, to which, through necessity, said water is being applied, . . ." (C. S., secs. 5325, 5556; Niday v. Barker, 16 Idaho 78, 101 P. 254; Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 P. 81; Paddock v. Clark, 22 Idaho 498, 126 P. 1053.)

Where one sells a certain tract of land by valid deed, and in which, after describing the land, there is the expression "together with all and singular, the appurtenances thereunto belonging and appertaining," or one of similar purport, using the word "appurtenances," unless there is a specific reservation of the water right, which is in fact an appurtenance to the land, the water right will pass with the transfer of the land, the same as though it had been specifically mentioned in the deed. (Kinney on Irrigation, 2d ed., pp. 1796, 1804; Russell v. Irish, 20 Idaho 194, 118 P. 501; Paddock v. Clark, supra; Pendola v. Ramm, 138 Cal. 517, 71 P. 624; Simmons v. Winter, 21 Ore. 35, 28 Am. St. 727, 27 P. 7; Long on Irrigation, 2d ed., p. 314; C. S., sec. 5375.)

WM. E. LEE, J. McCarthy, C. J., and Dunn, J., concur. WILLIAM A. LEE, J., Mr. Justice Budge, Dissenting.

OPINION

WM. E. LEE, J.

Some years prior to 1905 appellant Olive acquired from one Curd title to certain lands along the South Fork of the Snake River in what is now Madison county, together with certain water rights, including the three quarter-sections he conveyed in 1905 to respondent Koon and one Graves, respondent's grantor. In February, 1905, appellant Olive filed an answer and cross-complaint in the case of Rexburg Irrigation Company et al. v. Teton Irrigation Canal Company et al., pending in the district court in and for Fremont county; and on December 16, 1910, a decree was made and filed in said suit, in which there was decreed to appellant Olive a right to 600 inches of water, with a priority date of June 1, 1889, from the Bannock-Jim Slough, and a right to 160 inches of water, with a priority date of May 1, 1905, from the same stream, for the lands now owned by respondent and two additional quarter-sections. On December 20, 1905, appellant Olive conveyed to respondent and to respondent's grantor, one Graves, the three quarter-sections of land now owned by respondent. The evidence showed that the water was necessary for the successful growing of crops on respondent's lands. The lands were cultivated by appellant Olive and his predecessors, all of whom applied water for the growing of crops. In 1918, appellant represented to the State Engineer that he was the owner of the right to the 600 inches of water, which is the basis of this litigation; that the lands upon which the water had been applied had been largely washed away and were no longer profitable for irrigation, and praying for the issuance of a certificate authorizing him to transfer the water and conduct it through the Harrison Canal for the irrigation of other lands. After one certificate had been issued and canceled, the Department of Reclamation issued to appellant a certificate, permitting the transfer of such of the 12 second-feet of water to the Harrison Canal Company "as may have been owned by O. H. Olive on the date of his transfer . . . to the Harrison Canal Company." Thereafter the watermaster, Empey, diverted 12 second-feet of water into the Harrison Canal.

This action was instituted to quiet respondent's title to the 600 inches of water and to enjoin the watermaster from delivering such water to anyone else. The appellants denied the allegations of the complaint and affirmatively alleged that title to the water right was acquired by appellant Olive by adverse possession. The deeds by which Olive conveyed the lands now owned by respondent did not specifically mention any water, but they contain the clause: "Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining . . . ," which respondent contends effected the transfer of all the water appurtenant to the land. On the contrary, appellants contend that when the deeds were executed and delivered, the parties agreed that the water appurtenant to the land was to be retained by appellant Olive; and appellants attempted to establish such reservation by parol. The court refused to permit the introduction of oral evidence for such purpose, and the action of the court is assigned as error. The language of the deeds is plain and unambiguous. From the deeds the intent of the grantor to convey the lands, together with the appurtenances, plainly appears. There was no allegation of fraud or mistake in the execution of the deeds, and no fraud or mistake is claimed. It is an elementary rule for the construction of deeds, the language of which is plain and unambiguous, that, in the absence of fraud or mistake, the intention of the parties must be ascertained from the instrument itself. (8 R. C. L. 1039, sec. 95.) Parol evidence is not admissible for such purpose. (Owen v. Henderson, 16 Wash. 39, 58 Am. St. 17, 47 P. 215; 10 R. C. L., "Evidence," 1023, sec. 214, and cases cited under note 17; Tyson v. Neill, 8 Idaho 603, 70 P. 790; Beebe v. Pioneer Bank & Trust Co., 34 Idaho 385, 201 P. 717; Donnell v. Humphreys, 1 Mont. 518; Doe v. Porter, 3 Ark. 18, 36 Am. Dec. 455.) It is where the language of a deed is ambiguous that the intent of the parties may be ascertained from the surrounding circumstances. (18 C. J. 260, sec. 217.)

Having been used to irrigate the lands now owned by respondent in 1905, and several years prior, the water became appurtenant to the land; for there can be no question that a water right becomes appurtenant to the land to which it has been applied and upon which the water has been used for irrigation (Russell v. Irish, 20 Idaho 194, 118 P. 501; Paddock v. Clark, 22 Idaho 498, 126 P. 1053); and, in the absence of any reservation to the contrary, a deed to land effects a transfer of such water and...

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  • Gould v. Hill
    • United States
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    ... ... Macey , 13 ... Idaho 451, 90 P. 339; Montpelier M. Co. v. City of ... Montpelier , 19 Idaho 212, 113 P. 741; Koon v ... Empey , 40 Idaho 6, 231 P. 1097.) ... Appellant ... urges that the findings of fact are contrary to and in ... conflict with the ... ...
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    ... ... reserved from said conveyance. Johnson v. Gustafson, ... 49 Idaho 376, 288 P. 427; Hunt v. Bremer et al., 47 ... Idaho 490, 276 P. 964; Koon v. Empey, 40 Idaho 6, ... 231 P. 1097; Russell v. Irish, 20 Idaho 194, 118 P ... 501; Hall v. Blackman, 8 Idaho 272, 68 P. 19; ... McGinness v ... ...
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    ...15 Idaho 221, 96 P. 936; Montpelier Milling Co. v. City of Montpelier, 19 Idaho 212, 113 P. 741.) * * * "In the case of Koon v. Empey, 40 Idaho 6, 231, P. 1097, it is "'Findings are ordinarily required on all material issues, but the trial court is not required to make findings on issues no......
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    ...evidence (i. e. documentary, oral, or real evidence extrinsic to the deed itself) is not admissible for such purpose. Koon v. Empey, 40 Idaho 6, 231 P. 1097 (1924); Meir-Nandorf v. Milner, 34 Idaho 396, 201 P. 720 (1921). When the language of the deed is ambiguous, the intention of the part......
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