Reynolds Irr. Dist. v. Sproat

• Decision Date: 27 March 1948
• Docket Number: 7384
• Parties: REYNOLDS IRR. DIST. v. SPROAT et al
• Court: Idaho Supreme Court

206 P.2d 774

69 Idaho 315

REYNOLDS IRR. DIST. v. SPROAT et al

No. 7384

Supreme Court of Idaho

March 27, 1948

On Rehearing May 17, 1949.

On Rehearing May 17, 1949.

Appeal from District Court, Seventh District, Canyon County; Thomas E. Buckner, Judge.

Judgment vacated and a new trial ordered.

E. G Elliott and Edwin Snow, both of Boise, for appellants.

The owner of a right of way across the land of another, whether it was acquired by grant or prescription, is entitled only to a reasonable and usual enjoyment thereof, in view of all the circumstances of the case and of the use then and theretofore made of the premises affected by it, and the owner of the soil is entitled to all the rights and benefits of ownership consistent with the easement. West Coast Power Co. v Buttram, 54 Idaho 318, 31 P.2d 687.

Smith & Ewing and Dunlap & Dunlap, all of Caldwell, for respondent.

Owner of land subject to easement in ditch has burden of proving that ditch is or could be made capable of carrying his water without interference with rights of owners of easement. Tomchak v. Harris, 54 Idaho 448, 32 P.2d 1025.

The rights of the owner of the easement are paramount to the extent of the grant, to those of the owner of the soil, and the latter cannot make any use of his property which obstructs the easement or is incompatible with its existence or which renders the exercise by the owner of the easement of his right unreasonable, difficult or burdensome. 28 Corpus Juris Secundum, Easements, § 91, page 771; 17 Am.Jur., Easements, pages 993 and 994, § 96; Town of Fort Cobb v. Robinson, 193 Okl. 660, 143 P.2d 122; Kesterson v. California Oregon Power Co., Ore., 221 P. 826 at page 831; Anderson v. Southern California Edison Co., 77 Cal.App. 328, 246 P. 559.

Miller, Justice. Givens, C. J., Budge and Hyatt, JJ., and Stevens, District Judge, concur. Before the rehearing granted by the court with the above personnel, could be heard, Judge Budge had voluntarily retired from the court, Justices Miller and Hyatt had resigned and Judge Stevens had died. Justice Porter, by election, succeeded Judge Budge, and Justice Taylor succeeded Justice Miller by appointment.

OPINION

Miller, Justice.

This action was commenced April 5, 1946, by the Reynolds Irrigation District, a quasi-municipal corporation of Owyhee County, State of Idaho, as plaintiff against Ellen T. Sproat and Hugh Sproat, husband and wife, as defendants, for the purpose of perpetually enjoining, restraining and estopping the defendants, and each of them, from using a certain ditch for conveying water to their land, or from cutting, obstructing or interfering with the use of said ditch, or from diverting any water therefrom. April 16, 1946, defendants filed a demurrer to the complaint in which it was alleged that the complaint did not state facts sufficient to constitute a cause of action against the defendants or either of them and that it was ambiguous, unintelligible and uncertain in that it may not be determined from the allegations thereof what water or water rights, if any, plaintiff is attempting to claim, their source, volume, or what land, if any, to which they may be appurtenant. The demurrer was overruled. May 6, 1946, the defendants filed an amended answer and cross-complaint. The amended answer denied generally the material allegations of the complaint. The cross-complaint alleged that at the time work was commenced on the ditch described in plaintiff's complaint, one John Keith, predecessor in interest of plaintiff, entered into an agreement with defendants to acquire a right-of-way for said ditch over and through the lands of defendants for a distance of approximately one mile, and as the sole consideration therefor contracted and agreed with defendants and granted to them therefor a perpetual interest to said ditch to the extent necessary to carry their water to their said lands. That said right-of-way was acquired by said John Keith, and his successor, the plaintiff, and the defendants' joint interest in and to said ditch was completed on or about April 1934, and ever since said time defendants have claimed and used said ditch under and by reason of their said legal rights and ownership and ever since 1934 have openly, notoriously and publicly so used said ditch and have conveyed their said waters from said ditch to their said lands for irrigation purposes; that with full knowledge of said John Keith until he died in 1938, and, at all times with full knowledge and notice of said plaintiff, defendants have claimed and used said ditch and said waters.

May 9, 1946, the plaintiff filed an answer to defendants' cross-complaint in which it denied the allegations and each of them, contained therein and prayed that defendants take nothing thereby and for judgment as prayed for in its complaint.

May 22, 1946, defendants filed an affidavit of bias and prejudice of the trial judge, Hon. A. O. Sutton, under the provisions of Chapter 218, of the 1933 Session Laws, and June 5, 1946, the Hon. A. O. Sutton made and filed an order transferring the cause of action to the Hon. Thomas E. Buckner, an associate district judge of said judicial district.

July 8, 1946, attorney for defendant was notified by counsel for plaintiff that application would be made to have said cause set for trial on July 23, 1946, counsel for defendant did not appear.

July 18, 1946, an affidavit of bias and prejudice by Hugh Sproat, one of the defendants, in which it was stated, as he verily believed, that defendants could not have a fair and impartial trial of the above entitled cause before the Hon. Thomas E. Buckner for the reason that said judge was biased and prejudiced against affiant.

July 23, 1946, the cause having been set down for trial on said date, the plaintiff appeared by counsel, and defendants did not appear either in person or by counsel, and having filed herein their affidavit and motion of continuance and affidavit of bias and prejudice of the judge and the plaintiff having filed counter-affidavits, the court heard argument of plaintiff's counsel and ordered the defendant's motion, under the affidavit of bias and prejudice of the judge, be denied and the court granted defendant's application for continuance until September 23, 1946.

October 21, 1946, the cause came on for trial and was concluded October 22, 1946. February 8, 1947, the court made and filed its findings of fact, conclusions of law and judgment and decree.

May 1, 1947, the defendants filed their notice of appeal to this court.

The plaintiff, Reynolds Irrigation District, alleges that as a part of its irrigation system it is the sole owner of a certain ditch used by plaintiff for the diversion from Warm Springs Creek, located in Canyon County, Idaho, waters appurtenant to the lands within its irrigation district located in Owyhee County, Idaho; that said ditch has its head in Sections 9 and 10, Township 1 South, Range 2 West of the Boise Meridian, Canyon County, Idaho, at what is commonly known as Warm Springs and sometimes as Sproat Springs and runs in a southwesterly direction through a portion of Sections 8 and 9 of Township 1, South, Range 2, West of the Boise Meridian, Canyon County, Idaho, and crosses the Snake River at Walter's bridge; that none of the lands within the boundaries of said irrigation district are located in either of the sections, above mentioned, or in any part of Canyon County, Idaho.

From the findings of fact it appears that all the material allegations of the complaint are established by oral and documentary proof and the cause having been submitted to the court for its decision, the court holds as conclusions of law under the findings of fact, as follows:

"That the above named plaintiff, Reynolds Irrigation District, a quasi-municipal corporation of Owyhee County, State of Idaho, is entitled to a judgment and decree of this court that it is the sole owner of that certain irrigation ditch described in the complaint on file herein and built by it and which is partially located in and intersects the Southeast Quarter of the Southeast Quarter and Lot 1 of Section 8, Township 1 South, Range 2 West of the Boise Meridian, and each and every part thereof; and that the defendants, nor either of them, have no right, title, claim or interest in and to said ditch or in and to any part or portion thereof, or to the use thereof, and quieting the title of the plaintiff in and to said ditch, and each and every portion thereof, as against the defendants, and each of them; and perpetually enjoining and restraining the defendants, and each of them, from damaging, breaking or tapping said ditch, or any part thereof, and from diverting into and from said ditch any water whatsoever for any purpose, and from putting checks in said ditch or otherwise impeding the flow of water therein and from in anywise using or attempting to use the said ditch, and for plaintiff's costs and disbursements herein incurred."

By the judgment and decree it is ordered, adjudged and decreed among other things, that the plaintiff was at the time at the commencement of this action, and now is, the sole owner of, in possession and entitled to the exclusive possession of that certain ditch built by it for conveying water to the lands within the boundaries of an irrigation district located in Owyhee County, Idaho, and which ditch is partially located in the intersection of the Southeast Quarter of the Southeast Quarter and Lot 1 of Section 8, Township 1 South, Range 2 West of the Boise Meridian, Canyon County, Idaho; that the defendants herein and each of them, and all persons claiming under them, or either of them, have no right, title, claim, estate or interest whatsoever in and to said ditch, or any portion thereof and they are...