Morgan v. Udy

• Decision Date: 02 April 1938
• Docket Number: 6430
• Citation: 79 P.2d 295,58 Idaho 670
• Parties: JENNIE B. MORGAN, WILLARD WICKEL, REUBEN A. WARD and ART M. WARD, ELIHU BEECHER, GEORGE HEPWORTH, JOSEPH R. HURD, ASEL PARISH and EDWARD RASMUSSEN, Appellants, v. LOT UDY, Respondent
• Court: Idaho Supreme Court

79 P.2d 295

58 Idaho 670

JENNIE B. MORGAN, WILLARD WICKEL, REUBEN A. WARD and ART M. WARD, ELIHU BEECHER, GEORGE HEPWORTH, JOSEPH R. HURD, ASEL PARISH and EDWARD RASMUSSEN, Appellants, v. LOT UDY, Respondent

No. 6430

Supreme Court of Idaho

April 2, 1938

WATER AND WATER COURSES - PRIORITIES - DIVERSION-PRESCRIPTIVE USE-DITCH RIGHT-WATER RIGHT-RES JUDICATA.

1. A decree definitely fixing date and amount of priorities in waters of a creek and land for which water was appropriated was decisive that water in which priority was awarded had been applied to beneficial use at least generally on lands described in and prior to the date of the decree, and that there was a diversion from the stream, since such matters might and should have been determined.

2. A determination that there has been a diversion from a stream necessarily carries with it a determination that the water user has a point of diversion, since the water is measured at the point of diversion.

3. Where the method of conveyance of appropriated water is by gravity, the point of diversion recognized by a decree establishing priority might be high enough up the stream to permit the water to be diverted out of the stream and carried by gravity to the place of use.

4. Where the only way water in which landowner was awarded priority could be conveyed to part of land to which right was adjudicated was through an existing ditch, the decree establishing such water right would be deemed to have been predicated on the recognition of a point of diversion at the head of such ditch.

5. A ditch right and a water right may be independent, separate and apart.

6. Although the legal right and means of conveyance of water in which priorities were adjudicated could have been litigated in proceeding in which priorities were established, such rights were not so necessary to the determination of the priorities that they should have been litigated within operation of the doctrine of res judicata.

7. As respects the acquisition of priority, a denial of right of user with permissive or rented use of right of way for conveyance of water, would be contrary to constitutional rights of user if he actually diverted and applied water to beneficial use with intent to appropriate as against other subsequent appropriators.

8. A person may have a valid appropriation of water, although only a temporary and revocable way of conveyance for his water diversion and application to a beneficial use being the two essentials.

9. The fact that parties to a proceeding to establish priorities in waters of creek were not adversaries in proceeding could not prevent decree establishing priority from operating as res judicata as between successors in interest of such parties.

10. A right of way for ditches, canals, or other works may be acquired over private lands by grants or by adverse possession, from which a grant is presumed.

11. Ditches and canals, after their construction, together with their rights of way, may be acquired by prescription.

12. Although a right of way acquired by prescription may have its inception by permission or license, in order to constitute "adverse possession" of a right to use a ditch or canal across the land of another originally given by permission or license, the licensee must have repudiated the license and have brought the knowledge of the repudiation home to the owner of the land, and thereafter must have held adversely for the statutory period.

13. Evidence held to establish that owner of water right had acquired right to carry water adjudicated to him in ditch existing at time of decree below point of diversion, when landowners whose predecessors had constructed ditch were not carrying water therein, on ground that owner of water right and his predecessors had carried water in the ditch for more than five years with knowledge of adverse claims and that such use was permissive as to landowners whose predecessors had constructed ditch.

14. Landowners whose predecessors had constructed an irrigation ditch as to whom adverse use of ditch by owner of water right with point of diversion above ditch had been permissive, and their successors in interest, were entitled to injunction restraining owner of water right from using ditch except when such landowners or their successors in interest were not reasonably using the ditch, where ditch was not sufficient to carry water of landowners and of owner of water right at same time.

APPEAL from the District Court of the Eleventh Judicial District for Cassia County. Hon. Adam B. Barclay, Judge.

Appeal from a decree denying plaintiff an injunction restraining defendant from using a ditch and changing a point of diversion. Affirmed as modified.

Appellants entitled to an injunction. Petition for rehearing denied.

S. T Lowe, for Appellants.

The right to water and the right to the use of a ditch for the transportation of that water are two separate and distinct species of property. (In re Department of Reclamation, 50 Idaho 573, 300 P. 492; Swank v. Sweetwater Irr. & Power Co., 15 Idaho 353, 98 P. 297; Ada County etc. Co. v. Farmers' etc. Co., 5 Idaho 793, 51 P. 990, 40 L. R. A. 485; Stocker v. Kirtley, 6 Idaho 795, 59 P. 891.)

In order that the rule of res judicata should apply in a suit not involving the same cause of action as a former suit, it must appear by clear and competent evidence that the issues raised in the second action are identical with those raised in the first. (Evans v. Davidson, 57 Idaho 548, 67 P.2d 83; Collard v. Universal Automobile Ins. Co., 55 Idaho 560, 45 P.2d 288; Rogers v. Rogers, 42 Idaho 158, 243 P. 655; Marshall v. Underwood, 38 Idaho 464, 221 P. 1105; Wood River Power Co. v. Arkoosh, 37 Idaho 348, 215 P. 975.)

The defendant, Udy, has not acquired a prescriptive right to use the Rice-Lessey ditch, for ditches are real property. ( Randall Canal Co., Ltd., v. Randall, 56 Idaho 99, 50 P.2d 593; Ada County Farmers Irr. Co. v. Farmers Canal Co., supra; Welch v. Garrett, 5 Idaho 639, 51 P. 405.)

The elements which must be shown to establish a right by prescription are: (1) The use must be by actual occupation, open and notorious, not clandestine, (2) It must be hostile to the servient estate, (3) It must be held under a claim of title, exclusive of any other right, as one's own, (4) It must be continuous, uninterrupted, for a period of five years prior to the commencement of the action, with knowledge and acquiescence of the one against whom the right is claimed. ( Wood River Power Co. v. Arkoosh, supra; Pleasants v. Henry, 36 Idaho 728, 213 P. 565; Jensen v. Gerrard, 85 Utah 481, 39 P.2d 1070.)

When a right is claimed to have been acquired by prescription, the burden of proving each of the elements essential to such an acquisition is upon the claimant. (Pleasants v. Henry, supra; Brown v. Brown, 18 Idaho 345, 110 P. 269; Pacific Gas & Elec. Co. v. Crockett Land & Cattle Co., 70 Cal.App. 283, 233 P. 370.)

When the use was expressly or impliedly permissive, no prescriptive right can arise. (Jensen v. Gerrard, supra; Ferguson v. Standley, 89 Mont. 489, 300 P. 245; Eddy v. Demichalis, 100 Cal.App. 517, 280 P. 389; Matthiessen v. Grand, 92 Cal.App. 504, 268 P. 675.)

Where a landowner opens a way upon his own land for his own use and convenience, use by another, which does not interfere with the owner's use will not be considered adverse in the absence of circumstances indicating a claim of right and will not ripen into an easement. (Wood River Power Co. v. Arkoosh, supra; Howard v. Wright, 38 Nev. 25, 143 P. 1184; Harkness v. Woodmansee, 7 Utah 227, 26 P. 291; Jensen v. Gerrard, supra.)

H. A. Baker, for Respondent.

A judgment is a bar to a second suit between the same parties on the same cause of action. (Joyce v. Murphy Land & Irr. Co., 35 Idaho 549, 208 P. 241; Village of Heyburn v. Security Sav. & Trust Co., 55 Idaho 732, 49 P.2d 258.)

A determination of an issue estops the parties from relitigating the same issue in a subsequent suit on a different cause. (Hilton v. Stewart, 15 Idaho 150, 96 P. 579, 128 Am. St. 48; Evans v. Davidson, 57 Idaho 548, 67 P.2d 83; Wood River Power Co. v. Arkoosh, 37 Idaho 348, 215 P. 975; Jensen v. Berry & Ball Co., 37 Idaho 394, 216 P. 1033.)

Application to beneficial use is an essential prerequisite to a decree awarding water right. (Sand Point Water & Light Co. v. Panhandle Dev. Co., 11 Idaho 405, 83 P. 347; Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073; Reno v. Richards, 32 Idaho 1, 178 P. 81.)

A water decree is a determination, conclusive as to all parties to the suit, of existence of every fact necessary to a valid appropriation. (Albrethsen v. Big Wood River Canal Co., 40 Idaho 49, 231 P. 418; Howell v. Bent, 48 Mont. 268, 137 P. 49; Zosel v. Kohrs, 72 Mont. 564, 234 P. 1089; State v. District Court (Mont.), 69 P.2d 972; O'Brien v. King, 41 Colo. 487, 92 P. 945; Arnold v. Roup, 61 Colo. 316, 157 P. 206.)

Doctrine of relation does not authorize court to decree water prior to actual application to beneficial use. (Pyke v. Burnside, 8 Idaho 487, 69 P. 477; Sand Point Water & Light Co. v. Panhandle Dev. Co., supra; Nielson v. Parker, 19 Idaho 727, 115 P. 488.)

The appellants have long acquiesced in the use of the ditches and are guilty of laches. (Hillcrest Irr. Dist. v. Nampa & Meridian Irr. Dist., 57 Idaho 403, 66 P.2d 115.)

Appellants have the burden of establishing the exclusive ownership and right to possession of the ditch. (Call v. Coiner, 43 Idaho 320, 251 P. 617.)

Knowledge by person against whom prescriptive right is claimed of use by claimant may be established by or inferred from character of and circumstances connected with use. (Gurnsey v Antelope Creek & Red Bluff Water Co., 6 Cal.App. 387, 92 P. 326; ...