Last Chance Ditch Co. v. Sawyer

• Decision Date: 11 February 1922
• Citation: 204 P. 654,35 Idaho 61
• Parties: LAST CHANCE DITCH COMPANY, a Corporation, Appellant, v. H. SAWYER et al., Respondents
• Court: Idaho Supreme Court

204 P. 654

35 Idaho 61

LAST CHANCE DITCH COMPANY, a Corporation, Appellant, v. H. SAWYER et al., Respondents

Supreme Court of Idaho

February 11, 1922

PLEADING AND PRACTICE-STATUTES OF LIMITATION-EASEMENTS-PRESCRIPTION-PROTESTS BY OWNER OF SERVIENT ESTATE.

1. Where defendants allege in their answer title to an easement gained by prescription, they do not waive a plea of the statute of limitations because in their pleadings they refer to a section of the statute which does not apply.

2. Where a party alleges title to an easement resting upon prescription, the burden rests upon him to establish his right by evidence reasonably clear and convincing.

3. Where title to an easement gained by prescription is the issue, mere protests and notices to cease served upon parties claiming the easement by the owner of the servient estate are not sufficient to interrupt the continuity of the user or disprove acquiescence on the part of the owner of the servient estate.

4. Where a person claims an easement of a right to permit waste water from the irrigation of his lands to flow into a lower canal, the title thereto resting upon prescription, he must show that such waste water actually flowed into such canal during the period necessary to establish the right.

5. Claim of right is presumed from an open, notorious continuous and adverse use of an easement, but is inconsistent with an admission in court by the person exercising the right that he did not claim to have any such right or title.

6. The burden is upon a person claiming a right to an easement by prescription to show the extent and the amount of his user and of the right claimed.

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

Action for injunction. Judgment for defendants. Modified.

Judgment reversed. Costs awarded to appellant.

Wood &amp Driscoll, for Appellant.

Under the provisions of sec. 6713, C. S., it is necessary to refer expressly to the proper section numbers of the statutes to raise the question of the statute of limitations, and failure to so plead it waives it. (Rogers v. Oregon-Washington R & N. Co., 28 Idaho 609, 156 P. 98; McLeod v. Rogers, 28 Idaho 412, 154 P. 970.)

Defendant pleads only sec. 6611, C. S., and if this statute is not applicable, the question of whether any other section is applicable, though not pleaded, may not be urged on appeal without amendment in the court below. (Tritthart v. Tritthart, 24 Idaho 186, 133 P. 121.)

The burden is upon the party who claims title by prescription to clearly prove by competent evidence all the elements essential to such title. (Brown v. Brown, 18 Idaho 345, 110 P. 269; Rollins v. Blackden, 112 Me. 459, Ann. Cas. 1917A, 875, 92 A. 521; Barlow v. Frink, 171 Cal. 165, 152 P. 290; Clarke v. Clarke, 133 Cal. 667, 66 P. 10; American Co. v. Bradford, 27 Cal. 360.)

Protests and notices to quit interrupt the continuity of the user and disprove the acquiescence of the owner, thereby interrupting the running of the statute. (14 Cyc. 1147; Stillman v. White Rock Mfg. Co., 3 Woodb. & M. 538, F. Cas. No. 13,446; Chicago & N.W. Ry. Co. v. Hoag, 90 Ill. 339; Dartnell v. Bidwell, 115 Me. 227, 98 A. 743, 5 A. L. R. 1320; Powell v. Bagg, 8 Gray (Mass.), 441, 69 Am. Dec. 262; Lehigh Valley R. Co. v. McFarlan, 30 N.J. Eq. 180; Workman v. Curran, 98 Pa. 226; Nichols v. Aylor, 7 Leigh (Va.), 546; Reid v. Garnett, 101 Va. 47, 43 S.E. 182; Wooldridge v. Coughlin, 46 W.Va. 345, 33 S.E. 233; Crosier v. Brown, 66 W.Va. 273, 66 S.E. 326, 25 L. R. A., N. S., 174; Gwinn v. Gwinn, 77 W.Va. 281, 87 S.E. 371; Conner v. Woodfill, 126 Ind. 85, 22 Am. St. 568, 25 N.E. 876; Tracy v. Atherton, 36 Vt. 503; Tarpey v. Veith, 22 Cal.App. 289, 134 P. 367; Andries v. Detroit etc. Ry. Co., 105 Mich. 557, 63 N.W. 526.)

This is particularly true where the notice to quit has been followed by an actual cessation. (Boynton v. Longley, 19 Nev. 69, 3 Am. St. 781, 6 P. 437; Rollins v. Blackden, supra.)

The user must be accompanied by a claim of right or title inconsistent with the title of the owner or no prescriptive right can be acquired. (Davis v. Cleveland etc. R. Co., 140 Ind. 468, 39 N.E. 495; Bower v. Kollmeyer, 31 Idaho 712, 175 P. 964; 9 R. C. L. 782, sec. 40; Watkins v. Peck, 13 N.H. 360, 40 Am. Dec. 156; 19 C. J. (Easement), 884.)

One claiming an easement by prescription who does not clearly show the extent and burden thereof fails in his proof. (Strong v. Baldwin, 137 Cal. 432, 70 P. 288; Boynton v. Longley, supra.)

J. P. Reed, for Respondents H. Sawyer et al.

The defense of the statute of limitations stated in general terms will be allowed to prevail, even though the particular section of the statute is not designated nor the facts constituting the bar alleged. (Churchill v. Woodworth, 148 Cal. 669, 113 Am. St. 324, 84 P. 155; Southern P. Co. v. Santa Cruz, 26 Cal.App. 26, 145 P. 736.)

The facts showing that appellant's cause of action is barred as against respondents are sufficiently pleaded in the twelfth paragraph of the answer. (Osborn v. Hopkins, 160 Cal. 501, Ann. Cas. 1913A, 413, 117 P. 519.)

In this state it is now established that the period of time required to obtain an easement by prescription is five years. (Hall v. Blackman, 8 Idaho 272, 68 P. 19; Beasley v. Engstrom, 31 Idaho 14, 168 P. 1145.)

"The fact that the owner of the land, during the statutory period, protests or remonstrates against the exercise of the asserted right, without taking any positive action to prevent its exercise which might be made the ground of a legal action by a person entitled to the right, does not, by the weight of authority, as well as of reason, prevent the acquisition of the right." (2 Tiffany's Modern Law of Real Property, chap. 24, sec. 448; Lehigh Valley R. Co. v. McFarlan, 43 N.J.L. 605; School District v. Lynch, 33 Conn. 330; 19 C. J. 883, and notes.)

Where the evidence shows claimant's open, notorious, visible, continuous, and unmolested use for the established period of prescription, the use will be presumed to be under a claim of right, and the burden of proof is then thrown upon the owner of the servient estate to rebut the presumption by showing that the use was permissive. (8 L. R. A., N. S., 149, and notes; Fleming v. Howard, 150 Cal. 28, 87 P. 908; Kripp v. Curtis, 71 Cal. 62, 11 P. 879; Alper v. Tormey, 7 Cal.App. 8, 93 P. 402; 14 Cyc. 1147; 19 C. J. 959; Jones on Easements, sec. 186; Washburn on Easements, 4th ed., 156; Thompson v. Bowes, 115 Me. 6, 1 A. L. R. 1365, 97 A. 1; Pavey v. Vance, 56 Ohio St. 162, 46 N.E. 898.)

I. N. Sullivan and W. E. Sullivan, for Respondents Sullivan.

Under the provisions of C. S., sec. 6713, the pleader may either state the facts constituting the bar of the statute, or he may simply state that the action is barred by the provisions of certain sections of the statute of limitations, giving the sections. (Montgomery v. Locke, 72 Cal. 75, 13 P. 401; Osborn v. Hopkins, 160 Cal. 501, Ann. Cas. 1913A, 413, 117 P. 519.)

The giving of a written notice by plaintiff did not suspend the running of the statute. (Lehigh Valley R. R. Co. v. McFarlan, 43 N.J.L. 605; Cox v. Clough, 70 Cal. 345, 11 P. 732; Silva v. Hawn, 10 Cal.App. 544, 102 P. 952.)

There must be some open act of the owner to prevent the statute from running, and the mere verbal disputing of the right of the claimant by the owner is not sufficient. (Kinney on Irrigation and Water Rights, sec. 1053; Oregon Const. Co. v. Allen Ditch Co., 41 Ore. 209, 93 Am. St. 701, 69 P. 455; 9 R. C. L. 781; 2 Tiffany on Real Property, 2d ed., secs. 514-531.)

Parties are bound by, and estopped to controvert, allegations or admissions of their own pleadings. (31 Cyc. 87; 21 C. J. 482, 483.)

RICE, C. J. McCarthy and Dunn, JJ., concur. Budge, J., did not take any part in the decision.

OPINION

RICE, C. J.

This action was instituted by appellant Last Chance Ditch Company against eighty-nine different defendants, for the purpose of obtaining an injunction to restrain the defendants from permitting waste water from the irrigation of their lands from running into appellant's canal. It is alleged that such waste water carried large quantities of sand and silt into the canal and caused the water in the same to fluctuate so as to interfere with its proper control and management as an irrigation canal. The action was dismissed as to five of the defendants, and thirty-eight defendants appeared and answered. The judgment was in favor of appellant as to all defendants except twenty-six named therein. As to those defendants the court found that they had obtained a right by prescription to permit their waste water to flow into the canal, and as to them the action was dismissed. The question presented by the appeal is whether or not the twenty-six respondents had obtained a prescriptive right to permit waster water from their lands to flow into appellant's canal.

Respondents pleaded that the action was barred by C. S., sec. 6611. It was held in Beasley v. Engstrom, 31 Idaho 14, 168 P 1145, that this section does not apply, and that sections 6596, 6597 and 6599 are the sections of the statute of limitations applicable in cases of this kind. However, respondents pleaded affirmatively that they and each of them had enjoyed an easement in appellant's canal for the purpose of discharging and disposing of the excess and waste irrigation waters from their lands for a period of more than five years, with the knowledge of appellant, and that the use of such easement has been continuous, uninterrupted, adverse, open, notorious and nonpermissive. We think respondents did not waive the plea that the cause of action was barred by failure to refer to the proper sections of the statute, in view of the...