Pioneer Irrigation District v. Smith, 5323

• Citation: 285 P. 474,48 Idaho 734
• Decision Date: 11 February 1930
• Docket Number: 5323
• Parties: PIONEER IRRIGATION DISTRICT, a Corporation, Appellant, v. W. KENNETH SMITH, Respondent
• Court: Idaho Supreme Court

285 P. 474

48 Idaho 734

PIONEER IRRIGATION DISTRICT, a Corporation, Appellant, v. W. KENNETH SMITH, Respondent

No. 5323

Supreme Court of Idaho

February 11, 1930

WATERS AND WATERCOURSES-ARTIFICIAL WATERCOURSES-EASEMENTS-PRESCRIPTIVE TITLE AND RIGHTS-DUTY TO PROTECT-HOG TRESPASS-RIGHTS AND DUTIES OF SERVIENT ESTATE OWNER.

1. An easement for flow of water through artificial watercourse upon land of another may be acquired by prescription.

2. Right acquired by prescription for flow of water through artificial watercourse on land of another is limited to extent and manner of use during prescriptive period.

3. Title once acquired by prescription is as complete as any other title.

4. Owner of easement for right of way for ditch over lands of another is required to keep up and maintain his easement or right of way and to protect his ditch.

5. Owner of easement for right of way for ditch over lands of another must use his easement so as not to materially interfere with ordinary use of land by owner of servient estate.

6. In absence of limitations imposed by contract or otherwise where one has easement for ditch over lands of another, owner of servient estate has right to use his land according to ordinary course of husbandry, including right to graze his livestock thereon, and land owner is not liable for damage caused thereby.

7. Where one had easement for right of way for ditch over lands of another, owner of servient estate acted in reasonable manner in permitting his hogs to run within inclosure through which ditch ran, and could not be enjoined from permitting hogs to wallow in ditch.

8. Where one had easement for right of way for ditch over lands of another, owner of servient estate could not be required to fence so that hogs could not get into plaintiff's ditch and wallow therein, since C. S., sec. 1970, providing that owner of premises is not required to fence against hogs would be inapplicable, for ditch owner had mere easement, and was not "owner of premises" nor occupier of premises within the statute, for word "occupant" carries with it idea of exclusive enjoyment.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Dana E. Brinck, Judge.

Action for injunction and damages. Judgment for defendant. Affirmed.

Judgment affirmed. Costs to respondent.

Rice & Bicknell, Frank T. Wyman and Frank T. Wyman, Jr., for Appellant.

In Idaho hogs need not be fenced against, the owner or occupant of premises not being required to fence against them. (C. S., secs. 1959, 1970; City of Bellevue v. Daly, 14 Idaho 545, 125 Am. St. 179, 14 Ann. Cas. 1136, 94 P. 1036, 15 L. R. A., N. S., 992.)

Plaintiff is an "occupant" of the premises in question within the meaning of sec. 1970 aforesaid. (Peterson v. Petterson, 39 Utah 354, 117 P. 70; Thompson v. Berlin, 87 Minn. 7, 91 N.W. 25; Central of Georgia R. Co. v. Lawley, 33 Ga.App. 375, 126 S.E. 273; McCauley v. McCauleyville, 111 Minn. 423, 20 Ann. Cas. 828, 127 N.W. 190; Davis v. Baker, 72 Cal. 494, 14 P. 102.)

Wm. B. Davidson, for Respondent.

The owner of the servient estate is under no obligation to make repair, the rule being that he who uses the easement must keep it in the proper condition or suffer the resulting inconvenience, unless there is a special agreement or prescriptive right to the contrary. (19 C. J., p. 980; 9 R. C. L., p. 794, sec. 51; Durfee v. Garvey, 78 Cal. 546, 21 P. 302; Helfrich v. Catonsville Water Co., 74 Md. 269, 28 Am. St. 245, 22 A. 72, 13 L. R. A. 117; McEvoy v. Taylor, 56 Wash. 357, 105 P. 851, 26 L. R. A., N. S., 222; City of Bellevue v. Daly, 14 Idaho 545, 125 Am. St. 179, 14 Ann. Cas. 1136, 94 P. 1036, 15 L. R. A., N. S., 992; Oney v. West Buena Vista Land Co., 104 Va. 580, 113 Am. St. 1066, 52 S.E. 343, 2 L. R. A., N. S., 832; Big Goose & Beaver Ditch Co. v. Morrow, 8 Wyo. 537, 80 Am. St. 955, 59 P. 159.)

The appellant, being merely the holder of an easement, is not an owner or occupant of premises to the extent that the owner of the servient estate is required to fence said easement to keep his hogs off therefrom. (C. S., sec. 1970; Old South Assn. v. Codman, 211 Mass. 211, 97 N.E. 766; Guild v. Prentis, 83 Vt. 212, Ann. Cas. 1912A, 313, 74 A. 1115; 31 Cyc. 1163.)

The respondent is under no duty to protect the easement or right of way claimed by the plaintiff in the absence of any allegation showing the assumption by the respondent, or his predecessor in interest in said premises, of a duty to protect the same. (City of Bellevue v. Daly, supra; 9 R. C. L., p. 797, sec. 54; 19 C. J. 864, 980, 981; Joslin v. Sones, 80 Iowa 534, 45 N.W. 917; Durfee v. Garvey, 78 Cal. 546, 21 P. 302.)

VARIAN, J. Givens, C. J., Budge and Lee, JJ., and Koelsch, D. J., concur.

OPINION

VARIAN, J.

Appellant, a duly organized irrigation district, brought this suit for an injunction to restrain defendant from permitting his hogs to go upon its right of way and ditch, or in the waters thereof, situate on defendant's premises. The complaint alleges a prescriptive right of way, enjoyed for twenty-five years, fifteen feet on each side of the center line thereof, for a ditch across defendant's forty-acre tract, for the purpose of conveying irrigation water to about five hundred acres of land situate in plaintiff irrigation district; that said ditch is a necessary part of plaintiff's irrigation works, is from five to six feet in width and from two and one-half to three and one-half feet in depth; that practically no excavation was necessary in the construction of said ditch, the sides of which are made with banks of earth built upon the surface of the ground so that in many places the bottom of the ditch is no lower than the surface of the adjoining ground; that defendant has about 100 hogs on his said land, which for more than a year last past he has allowed to trespass at will on said right of way and in said ditch; that as many as a dozen have congregated on one place at one time in said ditch, thereby obstructing the flow of water, and causing it to overflow the banks of said ditch and to flow through the cuts and holes made therein by said hogs, thereby causing great delay and expense in delivering water to the users thereof, and causing plaintiff great expense in the maintenance and upkeep of said ditch; that, under C. S., sec. 1970, plaintiff is not required to fence against defendant's hogs. The complaint also prays for $ 250 damages.

Defendant filed a demurrer to the effect that the complaint did not state a cause of action or grounds for equitable relief, and for uncertainty in several particulars. The demurrer was sustained, and judgment of dismissal entered, from which plaintiff appeals. Another or second cause of action was stated, but was settled prior to the appeal herein, and is not before us.

An easement for the flow of water through an artificial watercourse upon the land of another may be acquired by prescription. The right thus acquired is limited to the extent and manner of use during the prescriptive period (Jones on Easements, sec. 799; Smith v. Hampshire, 4 Cal.App. 8, 87 P. 224), and title once acquired by prescription is as complete as any other. (Gardner v. Wright, 49 Ore. 609, 91 P. 286; George v. Gist, (Ariz.) 33 Ariz. 93, 263 P. 10.)

Plaintiff claims a right of way for a ditch used for the sole purpose of carrying irrigation water across defendant's land which includes the right of entry on said land to make repairs and clean out and maintain said ditch. The owner of such an easement over lands of another is required to "keep up, maintain, and protect" his easement or right of way, and it is his duty to protect his ditch. (City of Bellevue v. Daly, 14 Idaho 545, 125 Am. St. 179, 14 Ann. Cas. 1136, 94 P. 1036, 1038, 15 L. R. A., N. S., 992.) The owner must likewise so use his easement as not to materially interfere with the...