Paddock v. Clark

• Decision Date: 21 September 1912
• Citation: 126 P. 1053,22 Idaho 498
• Parties: EMMA L. PADDOCK, Appellant, v. ASAPH D. CLARK, Respondent
• Court: Idaho Supreme Court

126 P. 1053

22 Idaho 498

EMMA L. PADDOCK, Appellant, v. ASAPH D. CLARK, Respondent

Supreme Court of Idaho

September 21, 1912

WATER RIGHTS-APPURTENANCES TO LAND-CONVEYANCE OF LAND.

(Syllabus by the court.)

1. Under the constitution and statutes of this state, a water right is real property, and is an appurtenance to the land irrigated by the use of such water.

2. Where it is shown that a water right is acquired by the owner of land by deed of conveyance, and that such water right after purchase is used by the purchaser upon the land for a beneficial use, such water right becomes an appurtenance to such land, and where after such use such land is conveyed and in the deed of conveyance said land is described, and the deed further provides "together with the appurtenances," such deed of conveyance not only conveys the land, but the water rights appurtenant to said land.

3. Where a deed of conveyance describes real property as "lots three and four and the east half of the southwest quarter and the southeast quarter of section numbered eighteen in township numbered three, north of range numbered two east of Boise Meridian, Idaho, save and excepting therefrom the northeast quarter of the northeast quarter of the southeast quarter thereof, containing three hundred fourteen and thirty-three hundredths acres.... together with the water and water rights used in connection therewith being the right to demand and receive upon the terms and under the rules and regulations prescribed therefor thirty-five inches of the water of the Nampa and Meridian Irrigation Ditch Canal, formerly known as the Ridenbaugh Canal, together with one hundred ninety-two shares of the paid-up water stock of the New York Canal Company, Ltd. aggregating one hundred eighty-eight and six-hundredths inches of the said water," and said deed also contains the following provision, "together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in any wise appertaining.... to have and to hold all and singular the above mentioned and described premises together with the appurtenances unto the party of the second part," such deed clearly shows the intent of the parties to convey the water rights used in connection with said land and described in the conveyance, and that such description does not include other water rights appurtenant to said land and not described.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.

Action to quiet title to water right. Judgment for defendant. Affirmed.

Judgment affirmed. Costs awarded to respondent.

N. M. Ruick and B. W. Oppenheim, for Appellant.

The fact being established that the water right was appurtenant to the land at the time of the conveyance, plaintiff was entitled to judgment, since a water right appurtenant to the land will pass by conveyance of the land, unless expressly reserved or excepted. (Hall v. Blackman, 8 Idaho 272, 68 P. 19; Russell v. Irish, 20 Idaho 194, 118 P. 501; Frank v. Hicks, 4 Wyo. 502, 35 P. 475, 1025; Cave v. Crafts, 53 Cal. 135; Farmer v. Ukiah Water Co., 56 Cal. 11; Clyne v. Benicia Water Co., 100 Cal. 310, 34 P. 714; Simmons v. Winter, 21 Ore. 35, 28 Am. St. 727, 27 P. 7; Tucker v. Jones, 8 Mont. 225, 19 P. 571; Snyder v. Murdock, 20 Utah 419, 59 P. 91; Mills' Irr. Manual, sec. 130, p. 211.)

The water right was real estate, and did pass by a conveyance of the land as a part of the grant, for which reason it was unnecessary that any reference thereto be made in the deed--even the word "appurtenance" being unnecessary to pass title to the same. (Russell v. Irish, supra, and cases there cited.)

Without specific mention of water rights represented by stock, they will not pass with a conveyance of the land as appurtenances. (Wells v. Price, 6 Idaho 490, 56 P. 266; Watson v. Molden, 10 Idaho 570, 79 P. 503.)

An analogous case is that of Mason v. Thwing, 87 N.Y.S. 991, 94 A.D. 77.

The legal effect of a written instrument, even though not apparent from the terms of the instrument itself but left to be implied by law can no more be contradicted, explained or controlled by parol or extrinsic evidence than if such effect had been expressed. (17 Cyc. 570.)

A deed which is upon its face an absolute grant is not subject to have reservations or limitations ingrafted thereon by parol or extrinsic evidence of intentions, understandings or agreements contradictory to or at variance with its language. (17 Cyc. 620; Hubenthal v. Spokane & I. R. Co., 43 Wash. 677, 86 P. 955; 1 Elliott, Evidence, sec. 613; 9 Ency. of Ev. 437.)

Alfred A. Fraser, for Respondent.

The 75 inches of water in controversy herein was conveyed to Mrs. Paddock by the deed from Mr. Clark as an appurtenance to the lands conveyed. Nothing passes by the word "appurtenant" except such easements, rights or privileges as are strictly necessary to the proper enjoyment of the estate granted. (Root v. Wadhams, 107 N.Y. 384, 14 N.E. 281; Gale v. Heckman, 38 N.Y.S. 86, 16 Misc. 376, Fond du Lac Water Co. v. Fond du Lac, 82 Wis. 331, 52 N.W. 439, 16 L. R. A. 581; Linthicum v. Ray, 9 Wall. (U.S.) 243, 19 L.Ed. 657; Humphreys v. McKissock, 140 U.S. 311, 11 S.Ct. 779, 35 L.Ed. 473; Sweetland v. Olsen, 11 Mont. 27, 27 P. 339; Frank v. Hicks, 4 Wyo. 502, 35 P. 476, 1025; Cave v. Crafts, 53 Cal. 135; Simmons v. Winters, 21 Ore. 35, 28 Am. St. 727, 27 P. 7; Hindman v. Rizor, 21 Ore. 112, 27 P. 13.)

The deed itself, having mentioned a certain and specific water right as being conveyed with the land, excludes any other water right which the respondent might have owned at that time from passing as an appurtenant to the land conveyed. (Wiel on Water Rights, sec. 552; North Am. Explor. Co. v. Adams, 104 F. 404, 45 C. C. A. 185; Russell v. Irish, 20 Idaho 194, 118 P. 501; Davis v. Randall, 44 Colo. 488, 99 P. 322.)

STEWART, C. J. Sullivan, J., AILSHIE, J., concurring.

OPINION

STEWART, C. J.

This action was brought by the appellant against the respondent to quiet title to 75 inches of water of the Boise river going through the New York canal and the Penninger lateral, and used and applied to a beneficial use upon lands owned by the respondent prior to the time such land was conveyed by respondent to the appellant. Judgment was rendered for respondent. This appeal is from the judgment and from the order denying a motion for a new trial.

The controversy arises out of the construction to be placed upon a deed conveying title to real property made by respondent to appellant. The appellant contends that the execution and delivery of such deed conveyed the title to all the water used upon said land prior to the making of such conveyance, whether such water right be specifically described in the deed or is described as an appurtenance to the land described. While the respondent contends that the deed describes the property conveyed specifically, and that the language of the deed and the intent of the parties excluded all water rights not described.

The solution of this question depends largely upon the construction of the deed of conveyance. This deed describes the property as follows:

"All of lots three (3) and four (4) and the east half of the southwest quarter (E. 1/2 SW 1/4) and the southeast quarter (SE. 1/4) of section numbered eighteen (18) in township numbered three (3) north of range numbered two (2) east, of Boise Meridian, Idaho, save and excepting therefrom the northeast quarter of the northeast quarter of the southeast quarter (NE. 1/4 NE. 1/4 of SE. 1/4) thereof, containing three hundred fourteen and thirty-three hundredths (314.33) acres more or less, according to the government surveys thereof; together with the water and water rights used in connection therewith, being the right to demand and receive upon the terms and under the rules and regulations prescribed therefor thirty-five (35) inches of the water of the Nampa and Meridian Irrigation Ditch Canal, formerly known as the Ridenbaugh Canal, together with one hundred ninety-two (192) shares of the paid-up water stock of the New York Canal Company, Ltd., aggregating one hundred eighty-eight and six-hundredths (188.06) inches of the said water of said canals."

Said deed also contains the following provision: "Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in any wise appertaining, the reversion and reversions, remainders, rents, issues and profits thereof and all estate, right, title and interest in and to the said property as well in law as in equity of the said party of the first part.

"To have and to hold all and singular the above mentioned and described premises, together with the appurtenances unto the party of the second part and to her heirs and assigns forever."

The trial court upon the proof found that the defendant was the owner of a certain water right to the perpetual use of 75 inches of water, measured under a four-inch pressure continuous flow of the water in the New York canal, and that such water had been used for several years on the land sold by the defendant to the plaintiff; that such water right was exclusive of and from the 35 inches of water from the Ridenbaugh canal and the 192 shares of paid-up water stock of the New York Canal Company, Limited, mentioned in the deed made by the defendant to the appellant, dated the 11th day of August, 1909; that the 75 inches of water in controversy never had been represented by shares of stock in the New York Canal Company, nor otherwise than by a deed of conveyance of real property, duly executed, acknowledged and recorded, and that since the acquisition by the defendant of said water right, and for more than five years prior to and up to and including the...