Molony v. Davis

• Decision Date: 24 February 1925
• Citation: 40 Idaho 443,233 P. 1000
• Parties: W. D. MOLONY, Respondent, v. EDWIN H. DAVIS, MARSELLA T. DAVIS, ESTHER LEHTI, ANTON LEHTI, A. R. CRUZEN and LOUISE CRUZEN, Appellants
• Court: Idaho Supreme Court

233 P. 1000

40 Idaho 443

W. D. MOLONY, Respondent, v. EDWIN H. DAVIS, MARSELLA T. DAVIS, ESTHER LEHTI, ANTON LEHTI, A. R. CRUZEN and LOUISE CRUZEN, Appellants

Supreme Court of Idaho

February 24, 1925

FORECLOSURE OF MORTGAGE-AFTER-ACQUIRED WATER RIGHT-WHEN RIGHT PASSED AT SALE.

1. Where the owner of mortgaged premises, subsequent to the execution of the mortgage, acquires the right to the use of water for the same, and constructs the necessary ditches to convey the water to such land and thereafter applies the water to a beneficial use upon such premises, this water right becomes an appurtenance to the premises that, in the absence of a reservation, will inure to the benefit of the mortgagee.

2. In a proceeding to foreclose such mortgage, where the complaint in addition to giving a legal description of the premises adds "including all water rights, irrigation ditches and canals thereto belonging or usually had or enjoyed in connection with said premises or any part thereof," and the mortgagor or his successor in interest is served with process in the foreclosure action and defaults, a decree and order of sale following such description of the mortgaged property will include the original mortgaged premises and the after-acquired water right and ditches as an appurtenance to the land.

3. Where the successor in interest of the mortgagor, after being served with process, fails to appear in the foreclosure proceedings and contest the right of the mortgagee to sell an after-acquired water right that has become appurtenant to such land after the execution of the mortgage, he cannot thereafter, in an action to quiet title to the water right and ditch constructed to deliver the same upon the mortgaged premises, assert title to such after-acquired water right and ditches as against the purchaser at the foreclosure sale, or his successor in interest, where the complaint included all water rights and ditches thereunto belonging or usually had or enjoyed in connection with the premises.

APPEAL from the District Court of the Seventh Judicial District, for Valley County. Hon. Ed. L. Bryan, Judge.

Action to quiet title. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

F. M Kerby and Frawley & Koelsch, for Appellants.

A water right, though used as an appurtenant to land, may be used on other land or sold. (Hard v. Boise City Irr. & Land Co., 9 Idaho 589, 76 P. 331, 65 L. R. A. 407; Village of Hailey v. Riley, 14 Idaho 481, 95 P. 686, 17 L. R. A., N. S., 86.)

After-acquired title inures to the benefit of the mortgagee, but after-acquired property does not become subject to the mortgage unless it clearly appears from the language used that such was the intention of the parties. (C. S., sec. 6316; 20 Am. & Eng: Ency. of Law, 916, 917.)

An easement necessary to the enjoyment of the land and acquired after the execution of the mortgage inures to the benefit of the mortgagee; but this rule does not extend beyond the original parties to the mortgage. (Swedish American Nat. Bank v. Conn. Mutual Life Ins. Co., 83 Minn. 377, 86 N.W. 420.)

A water or a ditch right not in existence at the time of the execution of a conveyance and not specifically mentioned in such conveyance does not pass as an appurtenance. (Crippen v. Comstock, 17 Colo. App. 89, 66 P. 1074.)

A water right the water for which is used upon land is an appurtenance to such land and passes with a conveyance using the words "together with the appurtenances." But this statute and this rule do not extend beyond the grantor and grantee of such conveyance. (C. S., sec. 5375; Russell v. Irish, 20 Idaho 194, 118 P. 501; Paddock v. Clark, 22 Idaho 498, 126 P. 1053.)

Richards & Haga and Chas. H. Darling, for Respondent.

A water right is appurtenant to the land upon which it has been used and a conveyance, whether voluntary or by judicial sale, of such land without a specific reservation of the water will carry the same with the land. (Russell v. Irish, 20 Idaho 194, 118 P. 501; Paddock v. Clark, 22 Idaho 498, 126 P. 1053; Hall v. Blackman, 8 Idaho 272, 68 P. 19.)

A transfer of real estate, whether by voluntary conveyance or sheriff's deed on judicial sale, carries with it all easements attached thereto. (C. S., sec. 5375; 35 C. J. 71.)

Water rights, ditches and easements, just as improvements and fixtures, attached to the mortgaged premises after the execution of the mortgage, whether by the mortgagor or any purchaser under him, inure to the mortgagee. (2 Jones, Mortgages, sec. 681; 19 R. C. L., sec. 164; Kinney, Water Rights, sec. 1020; 1 Wiel, Water Rights, p. 594; 1 Jones, Mortgages, sec. 147; Swedish Am. Nat. Bank v. Conn. Mutual Life Ins. Co., 83 Minn. 377, 86 N.W. 420; Muckle v. Hill, 32 Idaho 661, 187 P. 943; Stanislaus Water Co. v. Bachman, 152 Cal. 716, 93 P. 858, 15 L. R. A., N. S., 359.)

Where a decree of foreclosure has been entered, the defendants duly served and no appeal taken, it becomes final and cannot be attacked collaterally even though the court may have erred in misdescribing the property in such decree, ordering the property sold without redemption contrary to statute, directing a judicial sale similar to ordinary execution without foreclosure contrary to law, or erroneously included appurtenances and easements such as water and ditch rights. (Andrews v. National Foundry & Pipe Works, 76 F. 166, 22 C. C. A. 110, 36 L. R. A. 139; Mach v. Blanchard, 15 S.D. 432, 90 N.W. 1042, 58 L. R. A. 811; Provident Loan & Trust Co. v. Marks, 59 Kan. 230, 68 Am. St. 349, 52 P. 449; Barton v. Anderson, 104 Ind. 578, 4 N.E. 420; McMillan v. Teachey, 167 N.C. 88, 83 S.E. 175.)

A decree in foreclosure binds all parties to the action, except as to a want of jurisdiction, and the rule is equally as applicable, whether the decree results from an issue framed or upon default, and a judicial sale under such decree confers on the purchaser a vested right to the property sold, a right of which he cannot be deprived collaterally or otherwise except for defects of jurisdiction. (McMillan v. Teachey, supra; Goebel v. Iffla, 48 Hun (N. Y.), 21; Allison v. Allison, 88 Va. 328, 13 S.E. 549; Jordan v. Van Epps, 85 N.Y. 427; Hilton v. Stewart, 15 Idaho 150, 128 Am. St. 48, 96 P. 579; Van Fleet, Collateral Attack, p. 133; Northwest Townsite Co. v. Conn, 74 Ore. 484, 145 P. 1058.)

WILLIAM A. LEE, C. J. Budge, Givens and Taylor, JJ., concur, Wm. E. Lee, J., concurs in the conclusion.

OPINION

WILLIAM A. LEE, C. J.

Respondent commenced this action to quiet title to certain lands with water rights and ditches alleged to be appurtenant thereto. From a judgment for respondent quieting his title to said premises as prayed for in the complaint this appeal is taken.

It appears that Davis and wife owned 160 acres of land in Valley county, and in 1918 mortgaged the same to J. L. Eberle to secure the payment of certain money. The mortgage contained the usual appurtenance clause, "together with all . . . . appurtenances thereto belonging or in anywise appertaining." At the time of the execution of the mortgage this land was not being irrigated and had no water right appurtenant thereto.

Davis conveyed to A. R. Cruzen who conveyed to appellants Lehti subject to the Eberle mortgage. Neither Davis and wife nor Cruzen and wife, named as defendants below, are parties to this appeal, and we are concerned only with the claim of appellant Lehti. After appellants acquired title, in June, 1919, they applied through the commissioner of reclamation for a permit to appropriate water for this land, and upon the completion of the...