Ramseyer v. Jamerson

• Decision Date: 14 January 1957
• Docket Number: No. 8359,8359
• Parties: Homer F. RAMSEYER and Maye Ramseyer, husband and wife, Plaintiffs-Cross Defendants-Appellants, v. J. M. JAMERSON, Defendant-Cross Complainant-Respondent.
• Court: Idaho Supreme Court

Page 1088

305 P.2d 1088

78 Idaho 504

Homer F. RAMSEYER and Maye Ramseyer, husband and wife, Plaintiffs-Cross Defendants-Appellants, v. J. M. JAMERSON, Defendant-Cross Complainant-Respondent.

No. 8359.

Supreme Court of Idaho.

Jan. 14, 1957.

Rayborn, Rayborn & Kramer, Twin Falls, for appellants.

Parry, Robertson & Daly, Twin Falls, for respondent.

SMITH, Justice.

Appellants acquired during the year 1942 and own the NW 1/4 of Section 29, Township 9 South of Range 16 E.B.M., together with an appurtenant water right represented by 160 shares of stock in Twin Falls Canal Company. Respondent acquired during the year 1938 and owns the E 1/2 NE 1/4 of Section 30 in said township and range, situate to the west and adjoining appellants' described land, together with an appurtenant water right represented by 80 shares of stock in said canal company. One such share of stock entitles the owner to the delivery of 5/8 ths of a miners inch of water for irrigation purposes. During recent years the canal company delivered when available 120% of the water share entitlements. Thusly the canal company has been delivering to appellants' lands 120 miners inches and to respondent's land 60 miners inches of water.

The natural contour of respondent's land requires delivery of irrigation water from both the west and from the east. The water appurtenant to respondent's land has been so delivered since at least the year 1932.

The water from the west is taken from the S2 Coulee into an open lateral known as the West Ditch and then conveyed north and then west to the south boundary of respondent's land. Respondent's rights in the West Ditch are not involved in this action.

The water from the east prior to the year 1947 flowed from the S Coulee into an open lateral herein referred to as the East Ditch and then through such ditch northwesterly over certain lands, including lands of appellants, a distance of about three-quarters of a mile, to the east boundary of respondent's land.

Commencing the year 1947 the water flowed from the S Coulee into and through an underground concrete 15-inch pipeline, slightly over a half-mile in length, herein called the Ramseyer pipeline, which appellants constructed during the fall of the year 1946, over land which they then owned and over land of Orville Creed. The Ramseyer pipeline transmitted the water northerly to the south boundary of appellants' described land; from there the remaining portion of the open East Ditch conveyed the water northwesterly across appellants' land to the east boundary of respondent's land. Appellants constructed the Ramseyer pipeline in substitution for and to take the place of the major portion of the open East Ditch.

Commencing the year 1953 the water flowed through the Ramseyer pipeline, then northwesterly through an underground concrete 10-inch pipeline about three-sixteenths of a mile in length, herein called the Jamerson pipeline, to the east boundary of respondent's land. Respondent constructed the Jamerson pipeline during the fall of the year 1952, with the permission of appellants over their lands; at the same time he constructed a concrete diversion structure largely at his own expense in accordance with appellants' specifications. The Jamerson pipeline took the place of and substituted for the remaining portion of the open East Ditch.

The two pipelines when spoken of as one will be referred to as the Ramseyer-Jamerson pipeline.

Appellants caused the open East Ditch to be plowed in when it was replaced by the Ramseyer-Jamerson pipeline.

The Ramseyer pipeline has a carrying capacity of 350 miners inches, and the Jamerson pipeline has a carrying capacity in excess of 60 miners inches, of water.

Appellants' 160 acres and Orville Creed's 80 acres adjoining appellants' lands to the south are entitled to irrigation water transmitted through the Ramseyer pipeline. Respondent asserts that additionally his 80 acres are also entitled to water so transmitted. The three tracts of land total 320 acres. Under current rates of delivery by the canal company of 120% of share entitlements, 240 miners inches of water flowing through the Ramseyer pipeline,--110 inches less than its carrying capacity,--will fill the share entitlements of the 320 acres.

Following the construction of the Jamerson pipeline and the diversion structure, respondent leveled a portion of his land and rearranged his fields and irrigation ditches at a cost of $1,950. The leveling and rearrangement of fields and ditches resulted in a more efficient and less wasteful use of respondent's land and appurtenant water; as a result of such rearrangement respondent can irrigate 40.1 acres of his land through the Ramseyer-Jamerson pipeline, 17.07 acres through the West Ditch and the remaining 22.9 acres either through the pipeline or the West Ditch. The West Ditch at times collects waste water and fills with silt. At such times it is more practical, desirable and efficient to irrigate as much of respondent's land as possible from the east through the pipeline.

At times when the canal company delivered respondent's 60 inches of water through the Ramseyer-Jamerson pipeline some overflow occurred at the diversion structure into which connects the southerly end of the Jamerson pipeline.

The issues were framed by appellants' complaint, respondent's cross complaint and the respective answers.

Appellants by their complaint seek to enjoin respondent from transmitting his irrigation waters in excess of eight miners inches through the Ramseyer-Jamerson pipeline. (During argument appellant admitted that respondent was entitled to so transmit 25 miners inches of water).

Respondent by his cross complaint asserts his right to transmit up to 60 miners inches of water through the Ramseyer-Jamerson pipeline. Respondent also seeks to quiet title in him both to an easement in the pipeline for the flow therein when desired of his full head of 60 miners inches of irrigation water together with the right of ingress and egress for purposes of regulating the flow of the water and maintaining the Jamerson pipeline.

The trial court at the conclusion of the trial, made findings of fact and conclusions of law. The court thereupon entered judgment and decree, denying any relief to appellants, and granting to respondent the relief which he sought under his cross complaint, i. e., that respondent was the owner of an easement in the Ramseyer pipeline and of an easement in the Jamerson pipeline to transmit therein when desired his 60 miners inches of irrigation water, together with the right of ingress and egress for the purpose of regulation of his water so transported and maintenance of the Jamerson pipeline; also quieting in respondent his title to such easements. Appellants have appealed from such judgment.

Appellants, by their assignments, assert that the trial court committed error in entering judgment and decree in favor of respondent in that the same cannot be supported by the pleadings.

Respondent by his cross complaint in effect alleged his ownership and sought to quiet title against appellants of a prescriptive right in the East Ditch, whether as an open lateral or as the open lateral substituted by the pipeline, for transmission and delivery to his land of the full head of his appurtenant irrigation water represented by his 80 shares of canal company stock. Respondent's cross complaint and appellants' answer thereto framed the issue, whether respondent is entitled to a decree quieting title in him to such a prescriptive scriptive right though evidenced by an easement or otherwise. There is no merit in appellants' said assignments, since the judgment and decree are fully supported by the facts pleaded by respondent.

Appellants lastly assign error committed by the trial court in entering the judgment and decree and assert insufficiency of evidence to support the same. Appellants in urging such assignment contend:

First; that the evidence is insufficient to show delivery, through the East Ditch or through the pipelines substituted therefor, of the water appurtenant to respondent's land, which has amounted to and is 60 miners inches under the 120% rate of delivery thereof.

Second; that respondent does not have a right by easement or otherwise to transmit his 60 miners inches of water through both or either of the said pipelines.

The canal company, on its books, assigned one-half the water appurtenant to respondent's lands for delivery through the West Ditch, and one-half through the East Ditch. Under existent practices, however, an owner of water may change delivery of his water from one ditch to another and may cause his water to be delivered in one head in any ditch serving his land. The canal company in keeping with such practice since at least the year 1938 has delivered the full head of water to respondent's lands, i. e., 60 miners inches under the current rate of delivery, either through the West Ditch or through the East Ditch, or the pipelines substituted for the open East Ditch. The findings of the trial court as to those facts are supported by substantial, competent evidence consisting of the sundry records of the canal company showing delivery of the water; also the testimony of the prior owner of respondent's lands, and of respondent and his tenants. The record thusly shows that prior to the fall of 1946, when appellants constructed the Ramseyer pipeline in substitution for the major portion of the East Ditch, respondent had used the open East Ditch, throughout its entire length, for transmission and delivery of his full head of water, for a period in excess of the prescriptive period of five years.

Further, appellants adduced no evidence to negative respondent's use of the open East Ditch as open, notorious and adverse. On the contrary, appellant Homer F. Ramseyer recognized such use by respondent of the open East Ditch; for said appellant testified that just prior to the construction of the Ramseyer...