Male v. Leflang

• Decision Date: 01 December 1900
• Citation: 63 P. 108,7 Idaho 348
• Parties: MALE v. LEFLANG
• Court: Idaho Supreme Court

63 P. 108

7 Idaho 348

MALE v. LEFLANG

Supreme Court of Idaho

December 1, 1900

DITCH AND WATER RIGHT-MORTGAGE-AGREEMENT TO CANCEL MORTGAGE BY DEED WITH RIGHT TO ENLARGE DITCH.-The defendants having purchased a tract of land, together with a certain ditch and water rights upon which plaintiffs held a mortgage, default being made in the payments secured by the mortgage, the attorney of plaintiffs, to avoid delay and expense of foreclosure, agreed with the defendants if they would convey the title to said property to plaintiffs, he, the agent, would give them the right to enlarge the said ditch, so as bring the water to the tract of land subsequently purchased by the defendants, and through which said ditch ran and to take water therefrom for the purpose of irrigating such land. Defendants, having executed the deed, proceeded to enlarge said ditch and utilize said water as agreed. In an action by plaintiffs to enjoin defendants from using said ditch or water, held, that under the provisions of section 6008 of the Revised Statutes, the defendants were entitled to enlarge said ditch and utilize said waters as agreed. Case of McGinnis v. Stanfield, 55 P. 1020, distinguished.

(Syllabus by the court.)

APPEAL from District Court, Blaine County.

Reversed and remanded, with instructions. Costs awarded to appellants.

L. L Sullivan, for Appellants, cites no authorities upon the point decided.

P. M Bruner, for Respondents.

This is an attempt on the part of appellants to obtain real property upon an alleged oral agreement. The ditch and right of way in controversy is real property. Real property cannot be conveyed otherwise than by operation of law or a conveyance or other instrument in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereto authorized by writing. (Idaho Rev. Stats., sec. 6007; McGinness v. Stanfield, 6 Idaho 372, 55 P. 1020.) Where the evidence and circumstances surrounding a case tend to prove the existence of a given fact or state of facts, and have been passed upon by a jury in a civil suit, their findings, unless set aside by the trial judge or appellate court, are conclusive upon the supreme court, and it is wholly immaterial whether that court thinks such findings are in accordance with the weight of evidence or not. (Illinois Cent. Ry. Co. v. Haskins, 115 Ill. 300, 2 N.E. 654; McCarty v. Boise City Canal Co., 2 Idaho 245, 10 P. 623; Childs v. Lauterman, 30 Cal. 553.) Where there is a conflict of evidence in a case, and the jury give credit to the witness on one side rather than to those on the other, their verdict upon the issue is conclusive. (Nichols, Shepard & Co. v. Shafer, 63 Mich. 599, 30 N.W. 383; O'Connor v. Langdon, 3 Idaho 61, 26 P. 659; McCarty v. Boise City, 2 Idaho 245, 10 P. 623; Chamberlain v. Woodin, 2 Idaho 642, 23 P. 177.)

HUSTON, C. J. Quarles and Sullivan, JJ., concur.

OPINION

HUSTON, C. J.

This is an action brought by plaintiffs against defendants to enjoin them from taking water from or interfering with a certain ditch located in Blaine county, and taking water from Big Wood river, and for damages. The facts, as they appear in the record, are substantially as follows: One Yager, being the owner of a certain tract of land described in the complaint as now being owned by the plaintiff Male being four hundred acres, mortgaged the same to said Male, or the New York Loan and Trust Company, or both together, with his interest--being two-thirds,--in the ditch conveying water onto said land from Big Wood river. Yager, subsequently to the making of the mortgage, but whether after or before default was made does not appear, sold the property to defendants. Default having been made in the payments secured by the mortgage, proceedings were, or were about to be, commenced to foreclose the same. Defendants having purchased a tract of land lying above the tract purchased by them of Yager, and upon and along the same ditch, and being unable to pay the mortgage, one P. M. Bruner acting as the attorney of the mortgagees made a proposal to defendants, to deed the property to the mortgagees or to Male. There is considerable conflict in the testimony as to the nature and terms of the agreement resulting from this proposal. The defendants both testify that they positively refused to sign the deed required by Bruner, unless he would give them the right to enlarge the ditch so as to carry two hundred inches more water, and that it was upon this consideration, and this only, that they signed the deed; and in this contention the defendants seem to...