Pfleuger v. Hopple, 7181

• Decision Date: 21 February 1945
• Docket Number: 7181
• Citation: 66 Idaho 152,156 P.2d 316
• Parties: RUTHERFORD PFLEUGER, Appellant, v. WILLIAM HOPPLE and CORA HOPPLE, husband and wife, Respondents
• Court: Idaho Supreme Court

156 P.2d 316

66 Idaho 152

RUTHERFORD PFLEUGER, Appellant, v. WILLIAM HOPPLE and CORA HOPPLE, husband and wife, Respondents

No. 7181

Supreme Court of Idaho

February 21, 1945

1. Property

Waters and water courses

Prescriptive title to a water right, which is "real property" may be acquired by adverse use for more than statutory period. I.C.A., secs. 5-206, 5-209, 5-210, 54-101.

2. Adverse possession

Uninterrupted continuous use of property in ordinary and customary manner for more than prescriptive period raises presumption that such use was adverse and under claim of title and is sufficient to establish adverse possession of property.

3. Notice

"Constructive notice" of fact ordinarily means that person knowing other facts, from which it is concluded that he knew or should have known fact in question, should be held to have knowledge of such fact.

4. Adverse possession

To perfect title to property by adverse possession, true owner need not have actual knowledge or notice of adverse claim, in absence of special statutory provision to contrary, but adverse claimant's open and notorious possession of property under claim of title is sufficient, whether true owner knows facts or not, and such claimant need not otherwise repudiate title of other claimants of property or notify them of his claim of title.

5. Adverse possession

Open visible, and notorious possession of property by one claiming title thereto adverse to that of true owner raises presumption of notice to such owner of adverse claim in absence of evidence that his inquiries, prosecuted with due diligence, did not disclose adverse claimant's possession, which is equivalent to actual notice of claim under which it is held.

6. Notice

Whether party has notice of circumstances, sufficient to put prudent man on inquiry as to particular fact, and might have learned such fact by prosecuting such inquiry, are fact questions for court or jury.

7. Waters and water courses

In action to quiet title to shares of canal company's stock evidence sustained finding that plaintiff had notice of defendant's adverse, open, notorious, and uninterrupted use of water right, represented by such shares, for more than statutory period of prescription, so that defendants acquired prescriptive title thereto and court properly quieted their title to such stock and stock certificate issued by company. I.C.A., secs. 5-206, 5-209, 5-210, 54-101.

Appeal from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. James W. Porter, Judge.

Affirmed.

Frank L. Stephan for appellant.

The execution and delivery of the quitclaim deed by De Neal to respondent Hopple and the assignment of the water right to respondent Hopple were not notice to appellant of respondents' adverse claims. (Sec. 54-810, I.C.A.; Pels v. Stephens (Ia.), 173 N.W. 56; 37 C.J. 943, phg. 310; In re Robinson, 61 Ida. 462, 103 P.2d 693; Andrews v. North Side Canal Co., 52 Ida. 117, 12 P.2d 263; First Security Bank of Blackfoot v. State, 49 Ida. 740, 291 P. 1064.)

Respondents did not hold adverse possession of the water right for the prescriptive period of five years prior to the commencement of this action. (Sections 5-206 and 5-210, I.C.A.; Pleasants v. Henry, 36 Ida. 728, 213 P. 565; Trask v. Success Mining Co., 28 Ida. 483, 155 P. 288; City of Valleys v. Burrill (Cal.), 221 P. 676; Raedell v. Anderson (Kan.), 158 P. 45; Blackfoot Land Development Co. v. Burks (Mont.), 199 P. 685.)

J. W. Taylor for respondents.

Uninterrupted and continuous use for more than the prescriptive period raises a presumption that such use was adverse and under claim of title. Use of property in the ordinary and customary manner is sufficient to establish adverse possession. (Northwestern & Pacific Hypotheek Bank v. Hobson, 59 Ida. 119, 80 P.2d 793; Lechman v. Mills (Wash.), 91 P. 11; McDonnell v. Huffine (Mont.), 120 P. 792; Trask v. Success Mining Co., 28 Ida. 463, 155 P. 288.)

Budge, J. Ailshie, C.J., and Givens and Miller, JJ., concur. Holden, J. deeming himself disqualified, did not participate in the decision.

OPINION

Budge, J.

This is an action to quiet title to forty shares of the capital stock of Twin Falls Canal Company. From a judgment in favor of defendants this appeal is prosecuted.

For a reversal of the judgment appellant relies upon eight assignments of error. We will consider only such assignments as are deemed material.

Substantially, the record discloses the following pertinent facts:

May 26, 1919, respondent, William Hopple, entered into a contract with the State of Idaho for the purchase of the following described real estate: The Southeast Quarter of the Northwest Quarter, Section 16, Township 10 South, Range 15 E.B.M., in Twin Falls County. April 19, 1920, Twin Falls Canal Company issued a certificate for forty shares of the capital stock of said company to William Hopple. December 24, 1919, Hopple, by assignment, transferred both the contract for the purchase of the land and the certificate of water stock to Rudolph Pflueger. April 19, 1920, Pfleuger entered into a contract with the Twin Falls Land and Water Company for the purchase of the water and water right involved in this suit. April 5, 1928, Rudolph Pflueger, father of appellant, died, and on April 28, 1928, H. A. DeNeal was appointed administrator of his estate. At the time of Pflueger's death the water right was paid up.

November 12, 1935, the State cancelled the Pflueger contract for the reason that payments thereon were not made in accordance with the terms thereof, and on December 13, 1935, De Neal, as administrator, by quitclaim deed, transferred to William Hopple the above described land "with all water stock thereto." December 20, 1935, DeNeal, as administrator, assigned the certificate of water stock to William Hopple. The land contract having been forfeited prior to the execution of the quitclaim deed, no consideration was paid by Hopple to DeNeal for either the land or the water stock. December 21, 1935, the Twin Falls Canal Company re-transferred the certificate of water stock to William Hopple. January 9, 1936, the State, upon payment by Hopple of all payments due under the contract, reinstated the land sale certificate issued to Hopple on May 26, 1919, whereupon Hopple went into possession of the land.

Otherwise stated, the forty shares of water stock involved were transferred to Hopple, the original owner, on December 21, 1935, by Twin Falls Canal Company, and the land sale certificate was reinstated January 6, 1936. Therefore Hopple has been in the exclusive possession of the land and water right in controversy continuously, openly, notoriously and uninterruptedly for approximately 5 1/2 years, this action having been instituted July 10, 1941, and has paid all maintenance and water charges from 1936 to 1942, inclusive. The record also discloses that Hopple paid all taxes levied against the land from 1936 to 1938, at which time his contract to purchase the land from the State was cancelled. However, Hopple remained in possession of the land under lease from the State, and the continuous and uninterrupted use of the water right. (Secs. 5-206, 5-209 and 5-210, I.C.A.)

The water right in controversy is real property (sec. 54-101, I.C.A.; In re Robinson, 61 Ida. 462, 469, 103 P.2d 693, 696.) Prescriptive title to a water right such as here involved may be acquired by adverse use for more than the statutory period.

In Verwolf v. Low Line Irr. Co. (Mont), 227 P. 68, it was held: "That the right to the use of water for irrigation or other lawful purposes may be lost by one and acquired by another by prescription is settled beyond controversy in this jurisdiction. (State v. Quantic, 37 Mont. 32, 94 P. 491; Smith v. Duff, 39 Mont. 374, 102 P. 981, 122 Am. St. Rep. 582; Featherman v. Hennessy, 42 Mont. 535, 113 P. 751; McDonnell v. Huffine, 44 Mont. 411, 120 P. 792; Custer Con. Min. Co. v. City of Helena, 52 Mont. 35, 156 P. 1090; Hays v. DeAtley, 65 Mont. 558, 212 P. 296; Glantz v. Gabel, 66 Mont. 134, 212 P. 858.")

The rule seems to be established that the uninterrupted and continuous use for more than the prescriptive period raised a presumption that such use was adverse and under claim of title. Use of property in the ordinary and customary manner is sufficient to establish adverse possession. (1 Am. Jur. secs. 11, 12 and 13, pp. 796, 797; Northwestern & P. Hypotheekbank v. Hobson, 59 Ida. 119, 80 P.2d 793; Trask v. Success Min. Co., 28 Ida. 483, 155 P. 288; Gardner v. Wright (Ore.), 91 P. 286; McDonnell v. Huffine (Mont.), 120 P. 792; Merritt v. Rey (Cal.), 286 P. 510; Moore v. Hoffman (Mo.), 39 S.W.2d 339, 75 A.L.R. 135; Campbell v. Holt, 115 U.S. 620, 39 L. ed. 483, 6 S.Ct. 209; Teall v. Schroeder, 158 U.S. 172, 39 L. ed. 938, 15 St. Ct. 768.)

The court found, among other things, that Hopple paid the State all delinquent payments which had not been made by Pflueger and, as a result thereof, the land sale contract was reinstated; that the quitclaim deed, to which reference has heretofore been made, was recorded in the office of the Recorder of Twin Falls County on December 17, 1935; that the assignment of the water stock to Hopple, executed by DeNeal on December 20, 1935, was delivered to the Twin Falls Canal Company; that there was no actual or positive fraud involved in any of the transactions leading up to the acquisition by Hopple of the water certificate or...