Loosli v. Heseman

• Decision Date: 04 October 1945
• Docket Number: 7248
• Citation: 66 Idaho 469,162 P.2d 393
• Parties: DIMOND M. LOOSLI and HATTIE LOOSLI, his wife, Appellants, v. E. E. HESEMAN, Respondent
• Court: Idaho Supreme Court

162 P.2d 393

66 Idaho 469

DIMOND M. LOOSLI and HATTIE LOOSLI, his wife, Appellants, v. E. E. HESEMAN, Respondent

No. 7248

Supreme Court of Idaho

October 4, 1945

1. Appeal and error

Where conflicting evidence is submitted to a trial court sitting without a jury, either as a court of law or as a court of equity, findings of the court on questions of fact will not be disturbed if there is any competent evidence to support the decree.

2. Appeal and error

On review of decision of district court, sitting without a jury the presumption is that the decree is correct and it will not be set aside unless there is a clear preponderance of evidence against it.

3. Waters and water courses

Upper landowner has easement of drainage in land of lower proprietor to extent of water naturally flowing from upper to lower tract, but the servitude in the lower land cannot be augmented by acts of upper landowner.

4. Easements

The burden is on parties claiming easement by prescription to show extent and amount of his user and of right claimed.

5. Waters and water courses

A "water course" is a stream of water flowing in a definite channel and discharging itself into some other stream or body of water and the flow of water need not be constant, but must be more than mere surface drainage occasioned by extraordinary causes.

6. Easements

Right gained by prescription is confined to right as exercised for full period of time required by statute, and one claiming such right cannot claim use as enlarged by him during such time.

7. Waters and water courses

Evidence failed to establish plaintiffs' right to right of way by prescription across defendant's land for carrying off surplus or waste irrigation water.

Appeal from the District Court of the Ninth Judicial District of the State of Idaho, for Fremont County. Hon. Guy Stevens, Judge.

Judgment affirmed.

Ralph L. Albaugh and Errol H. Hillman for appellants.

The right to conduct surplus irrigation water upon and across the land of another is an easement which may be obtained by prescription. (Beasley v. Engstrom, 31 Ida. 14, 18; Johnson v. Gustafson, 49 Ida. 376, 383; Walley v. Wiley (Ind.), 104 N.E. 318.)

Proof of uninterrupted and continuous use for the prescriptive period raises a presumption that such use was adverse and under claim of right. (Taylor v. O'Connell, 50 Ida. 259, 261; Backman v. Reynolds Irr. Dist., 56 Ida. 507, 519; 19 C.J., p. 959; Last Chance Ditch Co. v Sawyer, 35 Ida. 61, 67.)

One who claims a right to run his surplus irrigation water through a natural drainway across the lands of another is required to prove the extent of his easement with reasonable certainty and such requirement is satisfied by proof of the amount of water that is necessarily diverted and applied to the soil in the irrigation of the dominant estate. (Last Chance Ditch Co. v. Sawyer, 35 Ida. 61, 68-69; Johnson v. Gustafson, 49 Ida. 376, 381-382.)

F. L. Soule and C. W. Poole for respondent.

One who seeks to establish by decree an easement for a right of way over the land of another, on the ground of adverse use, is required to prove by "clear and positive evidence", every element of adverse possession, and the failure to prove any one of them is fatal. (Edwards v. Tenney, (Ida.), 154 P.2d 143; Simmons v. Perkins, 63 Ida. 136, 145.)

Where the owner of the land plows, plants, and cultivates, each year, the identical strip over which the easement for right of way is claimed, each plowing, planting, cultivating, irrigating or harvesting, or any act exercising his right as owner over the way claimed, is an invasion of the claim of the claimant, is a legal interruption of his use, and destroys the continuity of his use, and, thereby stops the running of the statute, if it has begun. (19 C.J. 897, 898, Sec. 74, Note 1; Nott v. Tinley, 69 Ga. 766; 2 C.J.S., p. 566, 567, Sec. 48, Note 18; 2 C.J.S., p. 565, Sec. 47; Last Chance Ditch Co., v. Sawyer, 35 Ida. 61; Henderson v. Griffin, 5 Pet. U.S. 151, 8 L. ed. 79.)

The plaintiffs must confine their claim to definite line, or strip of land, and the burden is on them to plead and prove with substantial certainty that they have used that particular way for the full period of the statute. (Kirk v. Schultz, 63 Ida. 278, 289; Coulsen v. Aberdeen Springfield Canal Co., 47 Ida. 619, 626.)

The use which the plaintiffs have had of the way claimed is the measure of the easement, and of the way, if any, to which they are entitled. They are not entitled to any enlargement or alteration of the character of the use, nor of the way, that will increase the burden upon the servient estate. (Kirk v. Schultz, 63 Ida. 278, 289; Coulsen v. Aberdeen-Springfield Canal Co., 47 Ida. 619, 626; Last Chance Ditch Co., v. Sawyer, 35 Ida. 61, 68; Hannah v. Pogue, 138 P.2d 790, 799; Ward v. City of Monrovia, 108 P.2d 425, 429.)

Miller, J. Ailshie, C.J., and Givens, J., concur. Budge, J., Holden, J., concurring specially.

OPINION

Miller, J.

This action was commenced August 10, 1943, by appellants, owners of the SE 1/4 SE 1/4 of Section 32, township 9 N., R. 43 E.B.M., to quiet title to an alleged right-of-way or easement for drainage of irrigation waste water from their land onto and across land of respondent adjoining that of appellants on the west. The answer of respondent puts in issue the material allegations of the complaint incident to said alleged easement, and respondent's cross complaint alleges that he is the owner of the SW 1/4 SE 1/4 and the E 1/2 SW 1/4 of said Section 32, township 9 N., R. 43 E.B.M., over which appellants seek an easement, and prays that it be adjudged and decreed that he is the owner and entitled to the possession of said land, and that appellants have no right, title, estate or interest or easement in or to or over any part thereof.

The cause was tried by the Court. Findings of fact and conclusions of law were filed, and judgment and decree in favor of respondent was entered in accordance with the prayer of the cross complaint. The appeal is from the judgment. Appellants' brief contains a number of assignments of error, practically all of which assert the insufficiency of the evidence to support the findings.

The record discloses that the parties to the action have owned and cultivated the lands above described since 1919. Said lands will produce agricultural crops without irrigation but will produce more diversified, better and more abundant crops when adequate irrigation water is applied. There is a depression or swale across a portion of appellants' land that extends onto and across the land of respondent. At the time these lands were acquired by the litigants their water rights were limited in amount. In 1939 storage water was made available and irrigation water became more plentiful. It is claimed by appellants that they cannot successfully irrigate their lands without some of the waters escaping and running into the swale and onto respondent's land, and that this condition has existed to some extent since 1920. Respondent denies that any irrigation waste water from appellants' land has flowed onto his land, except in 1935, when a son of appellants, who was doing the irrigating, left the premises and neglected his work, and, again, in 1942 and 1943, when a levee, which was constructed in 1938 by respondent across the depression or swale where it entered his land on the east was cut by appellants, in order to allow ponded water on appellants' land to escape into the swale on respondent's land, and which cuts in the levee were immediately repaired. No attempt was made to prove the amount of waste water that has flowed onto the respondent's land because of the irrigation of appellants' land for any year. There is no natural channel in the depression or swale and respondent has planted, cultivated and raised crops therein from year to year.

The trial court found that there is a depression, referred to as a "swale", originating on appellants' land and extending westward onto the land of respondent; that in May 1938, respondent constructed a dam or levee across said depression or swale immediately west of the division line of the lands of the litigants, which was about three feet high at the highest point, and about two hundred fifty feet long, and in 1939 respondent constructed a ditch on and across said levee and used same for the irrigation of his land beyond the swale; that appellants have never, at any time, for any continuous period of five successive years prior to the commencement of this action, "either openly, uninterruptedly, notoriously, exclusively, adversely, or actually, or under claim of right", flowed or discharged any of their excess or waste irrigation water upon, over or across respondent's land; that it is not true that appellants are the owners of the right to have any excess or waste irrigation water from their premises flow upon, onto or across respondent's land through said swale, and it is not true that any such right is appurtenant to the premises owned by appellants. From the findings the Court concluded that appellants are not entitled to any relief; that respondent is entitled to a decree upon his cross complaint quieting his title against appellants and their successors in interest, and they are forever barred and enjoined from asserting any right, title, interest, claim of easement or right of way in or to or over any portion of respondent's land. There is a pronounced conflict in the testimony on the material facts. The trial court in his "memorandum" has this to say: "The right contended for by the plaintiff has not been established by clear and satisfactory evidence. In fact, it appears to me that the evidence preponderates in favor of the defendant." A review of the record leads to the...