Lower Payette Ditch Co. v. Smith

• Decision Date: 03 March 1953
• Docket Number: No. 7841,7841
• Citation: 254 P.2d 417,73 Idaho 514
• Parties: LOWER PAYETTE DITCH CO. v. SMITH et al.
• Court: Idaho Supreme Court

Page 417

254 P.2d 417

73 Idaho 514

LOWER PAYETTE DITCH CO. v. SMITH et al.

No. 7841.

Supreme Court of Idaho.

March 3, 1953

Donart & Donart, Weiser, C. Ben Martin and J. F. Martin, Boise, for appellants.

Welker & Daniel, Payette, Hallock, Banta, Silven & Horton, Baker, Or., for respondent.

GIVENS, Justice.

The day of the initial setting of this case in this Court, December 10, 1952, respondent moved to dismiss the appeal because appellant W. J. Smith died November 12 and no substitution had been made. No representative had then been appointed. The setting was, therefore, vacated and the cause continued--the only immediate exigency. Cambon Bros. v. Suthon, 148 La. 669, 87 So. 512. Upon the appointment, in regular course of administration, of an executor December 17, 1952, substitution was timely moved and allowed, the case reset and heard. The right of defense survived, Section 5-319, I.C.; Civils v. First Nat. Bank, 41 Idaho 690, 241 P. 1023; Shaw v. McDougall, 56 Idaho 697, 58 P.2d 463; Pierson v. Pierson, 63 Idaho 1, 115 P.2d 742. Therefore, there is no merit to respondent's motion and it is denied. Rule 6, S.Ct.1952.

For more than twenty years prior to 1945, a conceded public highway had extended from the southeast, north and westerly through the premises now owned by appellants. For a distance of half to three-fourths of a mile, respondent's canal capable of carrying 13,000 miner's inches of water with a 50-ft. right-of-way, paralleled, adjoined and abutted on this highway, with the headworks and intake thereof from an eastern branch or slough of the Payette River, within appellants' premises.

A bridge, called the Red bridge, of the above highway spanned this branch of the river immediately west and slightly north of respondent's headworks. Shortly prior to 1945 Highway Dist. #2 of Payette County, then encompassing this highway, to avoid the expense of keeping up the above bridge, which assertedly had greatly deteriorated and entailed too much expenditure to repair, rerouted the highway, with the acquiescence and consent of the then owner, along and on the west side of their (now appellants') premises and there is this entry in the minutes of the Board:

'Exhibit I.

'Minutes of a meeting of the Board of Commissioners of Highway District No. 2, Payette County, held in the office of the District at No. 114, North 8th Street, Payette, Idaho, at 1:30 P.M., Monday, March 5, 1945.

'All members present.

* * *

* * *

'The question of closing the Highway District Road running from the Kenward Ranch to the new connection going through the Payne place was thoroughly discussed after which it was moved by Mickelson and seconded by Walker that the road be closed from the Kenward Ranch to a point where the new connection is made. The chairman calling for a vote upon the motion resulted as follows: Yes--Blayden, Mickelson and Walker. Against--none, so the chairman declared the motion carried. The request of the city of Payette to have that portion of the District road running through the north half of section 26 and cutting the airport in two, be closed was thoroughly discussed, after which it was moved by Blayden and seconded by Walker that only that portion of the district road running through the North Half of Section 26 and separating the land owned by the City of Payette be closed. The chairman calling for a vote upon the motion resulted as follows: Yes--Blayden, Walker and Mickelson. Against, none, so the chairman declared the motion carried.

'There being no further business the meeting adjourned.

Approved

Correct

s/ O. L. Blayden

Andrew Mickelson

Chairman

Secretary'

Thereafter, the District, and upon the dissolution of the District, Payette County succeeding to the District's overlordship of the highway, discontinued maintenance or control of the highway adjacent to and abutting on respondent's canal bank and beyond, and placed a notice of such closing some mile or so south and east of respondent's headworks where the new highway left the old and outside of appellants' land.

Appellants apparently became dissatisfied with respondent's continued use of the old road, because others entered their premises. They first (1946) placed a gate across this northern entrance and placed a lock thereon (1947), giving respondent a key. Later (1949), contending respondent neglected to close and/or lock the gate, allowing others to enter and appellants' cattle to wander out, blocked the road with a fence, ostensibly permitting respondent to pass through appellants' premises from the west. Respondent thereby had to pass over the above-mentioned bridge to get to its headworks and along the canal north through appellants' land, culminating in respondent assertedly being restricted to foot travel and preventing, because of the defective bridge, ingress and egress of heavy machinery and equipment necessary to maintain the canal, etc.

Thereupon, in 1950, respondent brought this suit to enjoin appellants from thus blockading the old road at its northern entrance into and through appellants' land

Appellants' main contention is that the old highway, by the above order and discontinuance of maintenance and use, first by the Highway District and then the County and the public generally, was completely abandoned and thus reverted to appellants and they had the absolute right to close it and respondent could get to their canal through appellants' land from the west, necessitating however, crossing the above bridge.

Respondent countered with asserted failure to comply with the statutory requirements for abandonment, and sufficient use by the public and respondent, to bar abandonment. Respondent alleged its special situation and necessities as to the use of the road thus:

'That the Lower Payette Ditch Company has approximately 13,000 miner's inches of waters of the Payette River, and that it would be impossible to deliver the water to their stockholders unless they can control the flow of the water to their stockholders by means of the headgate;

'That by reason of said obstructions so placed, the plaintiff is deprived of the free unobstructed use and enjoyment of its property;

'That said highway is the only means of ingress and/or egress for the purpose of rebuilding, repairing and maintaining said headgates or flashboards;

'That the plaintiff is the owner of the ditch and banks thereto of the Lower Payette Ditch, which abuts the said highway for the entire length of the obstructed portion of said highway.

'That plaintiff's agents and employees have used said road as a public highway in passing to and from the headgates or flashboards continuously for the last twenty years and until said highway was obstructed, as aforedescribed.' and prayed that appellants be enjoined 'from maintaining said obstruction to the use of said highway'. (Emphasis ours.)

Appellants denied the above allegations.

On this feature the court found no abandonment; that the old highway at intermittent points intersects and abuts respondent's canal; that to patrol the banks of its canal it is necessary for respondent to have continuous use of the old road; that other means of ingress and egress are not as satisfactory, direct or convenient, and concluded the old road had not been legally abandoned and:

'III.

'That plaintiff has shown necessity and a special easement for ingress and egress to and from its premises for the regulation of irrigation water and proper care and maintenance of its ditch.

'IV.

'That the roadway from U. S. Highway No. 52 through defendants' property to plaintiff's point of diversion and headgate is not as direct nor as satisfactory to plaintiff's purposes and is a more circuitous route than said Birding island road, causing plaintiff to suffer a special injury different from that suffered by the general public, through said obstruction.

'V.

'That plaintiff is entitled to judgment and decree herein perpetually enjoining and restraining said defendants, their heirs, successors and assigns, agents, servants and employees and all persons acting by, under or through them or either of them from obstructing or from attempting to obstruct or from maintaining or attempting to maintain any obstruction upon or across said Birding Island road or any portion thereof, or from interfering with or impairing the rights of plaintiff, its agents, servants or employees in the use and enjoyment of said highway.'

Except as to abandonment, the record amply, and virtually without conflict, supports the above findings.

The court entered a decree perpetually enjoining and restraining appellants from ...