Merrill v. Penrod

• Decision Date: 01 August 1985
• Docket Number: No. 14664,14664
• Citation: 704 P.2d 950,109 Idaho 46
• Parties: Don MERRILL and Florence Merrill, husband and wife, Mary Thompson and Ferol Adams, Plaintiffs-Respondents-Cross Appellants, v. Paul PENROD and Alta Penrod, husband and wife, Defendants-Appellants-Cross Respondents.
• Court: Idaho Court of Appeals

Page 950

704 P.2d 950

109 Idaho 46

Don MERRILL and Florence Merrill, husband and wife, Mary Thompson and Ferol Adams, Plaintiffs-Respondents-Cross Appellants, v. Paul PENROD and Alta Penrod, husband and wife, Defendants-Appellants-Cross Respondents.

No. 14664.

Court of Appeals of Idaho.

Aug. 1, 1985.

Roger D. Ling of Ling, Nielsen & Robinson, Rupert, for defendants-appellants-cross respondents.

D. Brent Martens of Hepworth, Nungester & Felton, Buhl, for plaintiffs-respondents-cross appellants.

ON DENIAL OF PETITION FOR REHEARING

This opinion supersedes our prior opinions issued June 18 and July 17, 1985, which are hereby withdrawn.

SWANSTROM, Judge.

Water, that most precious of compounds, can be at once man's friend and his natural enemy. So it proved to be in this case, as neighbor turned against neighbor in the quest for harmony with nature. The plaintiffs, Don and Florence Merrill, Mary Thompson and Ferol Adams, brought this action to establish their rights to easements across the property of the defendants, Paul and Alta Penrod. The Merrills claimed easements for the purpose of diverting surface water and irrigation waste water from their property and Adams' property onto the Penrods' property. They also sought damages for injuries to their land caused by the Penrods' interference with the man-made ditch used to divert this water and they requested an injunction to prevent further interference. Thompson claimed an easement over the Penrods' property for the purpose of receiving surface water and irrigation waste water from the Merrills' and Adams' properties. Adams further claimed easements to discharge surface water and irrigation waste water directly onto the Penrods' property. The district court, after a trial without a jury, granted easements to the Merrills and Adams, and awarded the Merrills damages and an injunction. The court also ordered the Merrills to maintain a dike on their property and ordered Adams to maintain a ditch on her property to reduce the water flowing onto the Penrods' land. The Penrods appealed and the plaintiffs cross-appealed. We affirm in part, vacate in part, and remand for further proceedings.

I

The facts, as found by the district court, are as follows. The Penrods own a parcel of land, approximately forty acres in size, located in Cassia County. The Merrills own a parcel of approximately thirty-seven acres, adjacent to and west of the Penrod parcel. An eighty-acre parcel owned by Adams, and farmed by her son Richard, is situated south of the Merrill and Penrod parcels and adjacent to both. Thompson owns an eleven-acre parcel to the northeast of and adjacent to the Penrod parcel. The Adams parcel has a higher elevation than the Merrill and Penrod parcels, and the Merrill parcel, in turn, has a slightly higher elevation than the Penrod parcel. As a result, water tends to flow generally northeast from the Adams parcel onto the Merrill and Penrod parcels, and from the Merrill parcel onto the Penrod parcel. The following sketch illustrates the layout of these properties.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

All the parcels, except Thompson's, have decreed water rights and are irrigated with water from Marsh Creek. Water is diverted to the Merrill parcel from Marsh Creek into the Vaughn Canal, which then feeds a "community ditch" running along the southern border of their parcel. The ditch enters the Penrod parcel at its southwest corner and continues along the Penrods' southern border for some distance. It then branches out to feed the entire Penrod parcel. Water run-off from the Adams parcel, both natural surface water and irrigation waste water, is collected in the community ditch on the Merrills' parcel and, together with the water diverted from the Vaughn Canal, finds its way to the Penrod parcel. The Penrod parcel also receives water run-off directly from the Adams parcel. This general state of affairs has existed for over twenty years. Finally, irrigation waste water flowed from the Merrill parcel onto the Penrod parcel across the common boundary between these parcels. After Penrod complained in 1977, the Merrills constructed an earthen dike to halt the flow. This measure was apparently successful, although in May 1981 water breached the dike and again flowed onto the Penrod parcel.

In December 1978, the Penrods decided that too much water was being discharged onto their land via the community ditch. To remedy this unhappy situation, they constructed a dirt dam at the point where the ditch entered their parcel. In January and February 1979, water in the ditch backed up behind the dam and overflowed the banks. The resultant flood covered approximately eight acres of the Merrills' pasture land. At this time, the Merrills were pasturing some 125 head of cattle. These cattle entered the flooded area. Because of the presence of the water and the cattle trampling in the mire, the hay crop for this eight acres in 1979 was reduced by half. A similar loss occurred the next year when the Penrods again dammed the community ditch.

In an effort to solve the problem Penrod complained of, i.e., excessive water draining from Adams' property directly or indirectly onto the Penrods' property, local irrigation district officials proposed to construct a drainage ditch on Adams' property. Adams consented to the work being done. On February 9, 1979, a drainage ditch was constructed at the northern boundary of the Adams parcel along the entire common boundary with the Penrods and partially along the common boundary with the Merrills. This was done to reduce the flow of water from the Adams parcel into the community ditch and onto the Penrod parcel. The drain, in fact, reduced the flow by diverting some water back into Marsh creek. Two days later, Penrod removed the dam he had placed in the community ditch. During each of the following two winters, however, Penrod again dammed the community ditch to prevent any water from coming through the ditch onto his property during that time of the year when no one was irrigating. In 1981, the Merrills obviated the need for such a dam when they placed a headgate in the community ditch near the Merrill-Penrod boundary. This headgate now controls the flow of water, via the community ditch, to the Penrod parcel.

This action was filed in March 1981 by the Merrills, Adams and Thompson because of Penrod's refusal to accept the amount of water that was being discharged onto his property. Following trial, the district court issued its final findings of fact, conclusions of law and judgment. The court also denied the Penrods' motion for a new trial. From the facts recited the court concluded that: (1) Adams and the Merrills have an easement by prescription to discharge up to fifty miner's inches of irrigation waste water from the Adams parcel into the community ditch and thence across the Penrod parcel; (2) Adams and the Merrills have an easement by prescription to discharge surface water from the Adams parcel, through the community ditch, and across the Penrod parcel; (3) Adams has an easement by prescription to discharge up to fifty miner's inches of irrigation waste water directly onto the Penrod parcel; (4) Adams has a natural servitude for the purpose of draining surface water directly onto the Penrod parcel (this is not challenged on appeal); (5) the Penrods violated the easement in favor of the Merrills by constructing the dam, causing damages in the amount of $1,400; (6) Thompson failed to establish a right to an easement across the Penrod parcel; and (7) the Penrods failed to prove that damages resulted from the negligent discharge of irrigation water onto their parcel across their common boundary with the Merrills. The district court also concluded that Adams should maintain the drainage ditch on her property and that the Merrills should maintain their dike. On appeal, the Penrods raise several issues, basically challenging the conclusion that prescriptive easements exist in favor of Adams and the Merrills, and the accuracy of the court's findings of fact. Adams, the Merrills and Thompson cross-appealed, also challenging certain findings and conclusions of the district court.

II

We begin first with the district court's conclusion that Adams and the Merrills have prescriptive easements to discharge irrigation waste water from the Adams parcel into the community ditch where the water is collected and channeled onto the Penrod parcel.

In a dry and arid climate, where irrigation is necessary in order to cultivate the soil, the question as to the rights of the proprietors of upper [dominant] and lower [servient] lands in regard to the waste water has seldom arisen, because, as a general rule, the lower landowner is willing to receive, dispose of, and profit by the use of all water flowing from the upper lands of another in irrigating his own land.

Boynton v. Longley, 19 Nev. 69, 6 P. 437, 438 (1885). What was true in 1885 is equally true today--seldom have servient landowners complained of too much water. Nevertheless, our Supreme Court has had occasion to hold that "an easement for the purpose of drainage across the land of another may be acquired by prescription." Beasley v. Engstrom, 31 Idaho 14, 18, 168 P. 1145, 1146 (1917).

To establish a prescriptive easement, the dominant landowner must "submit 'reasonably clear and convincing' proof of open, notorious, continuous, uninterrupted use, under a claim of right, with the knowledge of the owner of the servient tenement, for the prescriptive period." West v. Smith, 95 Idaho 550, 557, 511 P.2d 1326, 1333 (1973) (footnotes omitted). In order to constitute "continuous" use, the dominant landowner need not be "bodily on the land every minute." It is enough that "the frequency of use ... is normal for the kind of easement claimed." R. CUNNINGHAM, W. STOEBUCK & D. WHITMAN, THE LAW OF PROPERTY § 8.7 at 455 (1984). In other words, intermittent use is enough if such...