Maher v. Gentry

• Decision Date: 21 November 1947
• Docket Number: 7365
• Citation: 186 P.2d 870,67 Idaho 559
• Parties: MAHER v. GENTRY. GENTRY v. MAHER et al
• Court: Idaho Supreme Court

186 P.2d 870

67 Idaho 559

MAHER v. GENTRY.

GENTRY v. MAHER et al

No. 7365

Supreme Court of Idaho

November 21, 1947

Appeal from District Court, Tenth Judicial District, Idaho County Miles S. Johnson, Judge.

Affirmed.

Paul G Eimers, of Grangeville, and Leo McCarty, of Lewiston, for appellant.

Where water has been appropriated and put to a beneficial use for irrigation and domestic purposes upon a particular tract of land, the water right becomes permanent. I.C.A. § 41-814; Cohn v. Sorenson, 38 Idaho 37, 219 P. 1059; Sarret et al. v. Hunter et al., 32 Idaho 536, 185 P 1072; Mellen v. Great Western Beet Sugar Co., 21 Idaho 353, 122 P. 30, Ann.Cas.1913D, 621; Furey v. Taylor, 22 Idaho 605, 127 P. 676; Basinger v. Taylor, 30 Idaho 289, 164 P. 522; Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073; Keiler et al. v. McDonald et al., 37 Idaho 573, 218 P. 365; Neil v. Hyde, 32 Idaho 576, 186 P. 710; Rudge et al. v. Simmons et al., 39 Idaho 22, 226 P. 170.

Where land is conveyed by deed of conveyance containing the clause "together with appurtenances" all water rights appurtenant and necessary is conveyed under the said clause "together with appurtenances" unless specifically 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. Stanfield, 6 Idaho 372, 55 P. 1020; Ada County Farmers' Irrigation Co. v. Farmers Canal Co., 5 Idaho 793, 51 P. 990, 40 L.R.A. 485; 55 A.L.R. 1522 et seq.

Cox, Ware & Stellmon, of Lewiston, for respondent.

The Constitution and statutes of Idaho dealing with water rights refer to the public unappropriated waters of the State as distinguished from private waters. I.C.A. § 41-206; Public Utilities Commission of State of Idaho v. Natatorium Co., 1922, 36 Idaho 287, at page 311, 211 P. 533; King v. Chamberlin, 1911, 20 Idaho 504 at page 509, 118 P. 1099; Jones v. McIntire, 1939, 60 Idaho 338, at page 352, 91 P.2d 373.

The rule prevails that lakes of a surface area of less than five (5) acres and pools and springs located wholly upon and within and not flowing from the lands of a person are private property appurtenant to and a part of the land and belong exclusively to the owners of the land. Jones v. McIntire, 1939, 60 Idaho 338, at page 352, 91 P.2d 373; King v. Chamberlin, 1911, 20 Idaho 504, 118 P. 1099; Hall v. Taylor, 1937, 57 Idaho 662, at pages 667, 668, 67 P.2d 901.

Miller, Justice. Budge, C. J., and Givens, Holden and Hyatt, JJ., concur.

OPINION

Miller, Justice.

Minnie Maher, plaintiff and appellant, filed her complaint, in this action, on the 9th day of July, 1946, by which she sought to quiet title to the waters of a spring which arises on land now owned by William A. Gentry, defendant and respondent, and she also sought to quiet title to an easement for a pipe line conveying the waters of said spring to land owned by her. Defendant and respondent filed an answer denying the material allegations of the complaint and also filed a cross-complaint, praying that he be decreed to be the owner of said waters of said spring and that plaintiff and appellant be enjoined from interfering with the waters thereof.

The appellant and respondent were married, January 10, 1910, and during that year filed a government homestead on 320 acres of the public domain in what is known as Rocky Canyon, Idaho County, Idaho. They moved onto said homestead in the early part of 1911, they erected a dwelling house and outbuildings and established a residence thereon. 160 acres of the homestead was later sold. They lived upon and improved the remaining 160 acres until about 1918 when they moved to Cottonwood. During this period of time, three springs of water were developed upon the premises, the "upper spring" and the "lower spring" on what is now Mrs. Maher's land, and the spring in dispute which rises upon and is now Mr. Gentry's land. From 1918 to 1928 they commuted back and forth between Cottonwood and the ranch property.

A property settlement and agreement was entered into June 27, 1933. A decree of divorce was made and entered July 20, 1933, based upon the property settlement and which decreed in part that said parties owned said homestead as tenants in common and awarded to each an undivided one-half interest therein. Thereafter, and during the year 1935, the parties decided to divide said homestead between themselves and to partition the same, upon the ground, by a division fence. It was finally agreed that the 160 acre tract should be divided by line drawn through the center east and west. Respondent gave appellant her choice of said 80 acre tracts and she chose the north one-half upon which was located all of the improvements, most of the developed truck garden land and two of the springs of water then developed, leaving the south one-half of said 160 acres for the respondent and upon which is located the spring of water in dispute. The division of the springs of water then developed on the homestead, was specifically discussed between them and they agreed that the water of the springs should follow the title to the land; that appellant would have the water from the two springs on her north one-half and respondent would have the water from the spring on his land. September 11, 1935, quit claim deeds were made, executed and delivered between the said parties, by which respondent conveyed to appellant the north 80 acre tract and the appellant conveyed to respondent the south 80 acre tract. This was done by appellant's choice. All three of these springs were developed and used during all those years for the benefit of and each was appurtenant to the entire 160 acre tract.

Appellant moved from her 80 acre tract in 1935 and has used her place specifically for pasturing 7 or 8 head of cattle. Her place was vacant from about 1939 to 1945, except for a few transient workers. No examination whatever was made of the water pipe line between these springs by appellant during all these years until 1945, when the water would not run to the house and upon examination wooded plugs were found driven into the ends of the pipe at the house and barn. When these plugs were removed "there was plenty of water; lots of it."

In 1938, respondent, who had remarried in the meantime, came back to Rock Creek and began building another home and truck garden and orchard tract on the tillable soil on his 80 acre tract. That fall he plowed up a small tract above the house and the next spring planted an orchard and garden and began using all the waters of the spring in question, and used it thereon continuously by open ditch until the spring of 1946, at which time he put in a pipe line from said spring to said orchard and garden. Since 1939, respondent used all of the water from said spring and all of the water is necessary to irrigate said orchard and garden tract. Respondent actually measured the flow of water from the spring and the "upper spring" on appellant's land; said "upper spring" flows more water than the spring in dispute and both are year-round springs. The water from appellant's "upper spring" was going to waste, although it would cost only $ 150 to pipe the water from that spring down to her "lower spring". The water from the springs on appellant's land and from the spring on respondent's land sinks into the soil and none of the waters therefrom flows off the premises upon which the same rises.

There never was any shortage of water at appellant's house except in the spring of 1945 when she found wooded plugs driven into the pipes and in 1946 her "lower spring" went dry for the first time, at which time appellant claimed to have some interest in the spring on respondent's land, although she had previously tried to buy the same from respondent and referred a prospective buyer of her 80 acre tract to respondent for information concerning his spring, being the one now in dispute.

The cause came on for trial October 15, 1946, upon the complaint of the appellant and the cross-complaint of respondent. Oral and documentary evidence having been heard, submitted and considered and the case having been taken under advisement the parties having submitted the case to the court upon written briefs and arguments and the court being fully advised in the premises, on the 31st day of January, 1947, made and filed its findings of fact, conclusions of law and decree. The court found that Minnie Maher and James Maher were then husband and wife; that the plaintiff and cross-defendant Minnie Maher is the owner and in possession of certain described lands, described in Paragraph I, of her complaint; that the defendant and cross-plaintiff, William A. Gentry, is now and all of the time since September 11, 1935, has been the owner in fee simple absolute, in the possession and entitled to the possession of the 80 acres of land situate in Idaho County, to wit: S 1/2 NW 1/4 SE 1/4; S 1/2 NE 1/4 SW 1/4; S 1/2 NW 1/4 SW 1/4; NW 1/4 NW 1/4 SW 1/4; W 1/4 SW 1/4 NW 1/4 of Section 18, Township 30 North, Range One East of the Boise Meridian; that there is on the real property belonging to the defendant and cross-plaintiff, William A. Gentry, a spring of water which rises to the surface of the ground thereon, but does not flow off said premises; that the allegations contained in plaintiff's and defendant's complaint that she and her grantors and predecessors in interest were the owners in possession and entitled to the possession of one certain spring of water, which is mentioned in Paragraph IV hereof, together with an easement for pipe line right-of-way upon and across the land of defendant and cross-plaintiff...