Russell v. Irish

• Decision Date: 21 September 1911
• Citation: 118 P. 501,20 Idaho 194
• Parties: S. R. RUSSELL, Respondent, v. NEWTON IRISH and MINNIE IRISH, Appellants, and NAMPA & MERIDIAN IRRIGATION DISTRICT, Respondent
• Court: Idaho Supreme Court

118 P. 501

20 Idaho 194

S. R. RUSSELL, Respondent, v. NEWTON IRISH and MINNIE IRISH, Appellants, and NAMPA & MERIDIAN IRRIGATION DISTRICT, Respondent

Supreme Court of Idaho

September 21, 1911

WATER RIGHT-WATER APPURTENANT TO LAND-WATER RIGHT PASSES BY DEED OF APPURTENANCE-CONFIRMATION OF IRRIGATION BONDS-RES ADJUDICATA.

(Syllabus by the court.)

1. A water right is an appurtenance to the land on which it is used, and a deed to the land "together with appurtenances" carries with it the water right appurtenant to the land at the time of the conveyance, unless the same is excepted from the grant.

2. A division of a tract of land to which a water right is appurtenant by the sale of a portion thereof, without segregating or reserving the water right, works a division of the water right in proportion as the land is divided by the conveyance.

3. Under the provisions of sec. 3111 of the Rev. Codes of this state, a transfer of a tract of land on which the waters obtained by water right have been partially applied in the irrigation and cultivation of the same and such water right had been "obviously and permanently" used by the person whose estate is transferred for the benefit of the portion transferred, the purchaser acquires the right to continue the use and enjoyment of such water right as the same had been previously used and enjoyed by the owner thereof.

4. Where an irrigation district has proceeded in conformity with the statute to issue irrigation district bonds and has procured an adjudication and confirmation of the proceedings in conformity with the statute and of the assessment of benefits against the several tracts of land within the district, the same becomes res adjudicata against both the land owners and the district in all subsequent proceedings in so far as the same may involve the assessment of benefits against the several tracts of land.

5. ID.-As to whether or not such proceedings amount to res adjudicata as to the extent of any water right in a controversy subsequently arising between the water users,-doubted.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Fremont Wood, Judge.

Action by plaintiff to procure a writ of mandate against an irrigation district. On application of the district the appellants herein were brought into the case to set up and litigate their interests. Judgment for the plaintiff and the defendants Irish appeal. Judgment reversed.

Reversed and remanded, with direction. Costs of this appeal taxed against the respondent. Petition for rehearing denied.

J. C Johnston, and Gustave Kroeger, for Appellants.

The judgment of confirmation, in so far as the action was concerned, was res adjudicata, and in all collateral proceedings the benefits assessed against the land are conclusively presumed to be received, and the assessment is not open to revisal or review. (Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 P. 81; Oregon etc. R Co. v. Pioneer Irr. Dist., 16 Idaho 580, 102 P. 904.)

"Whether the water right is an appurtenance depends on whether it is an incident necessary to the enjoyment of the land. The water right is not necessarily appurtenant to or parcel of any land; and whether it is an appurtenance or parcel is a question of fact resting chiefly upon whether it was used specially for the benefit of the land in question. When used for irrigation, there will seldom be any doubt of such necessity." (Pendola v. Ramm, 138 Cal. 517, 71 P. 624; Wiel, Water Rights, p. 340, sec. 226.)

"Water originally appropriated by a person for his use on his land became appurtenant thereto, so that when the right was divided, the several rights became appurtenant, respectively to the tracts conveyed." (Wiel, Water Rights, p. 343, sec. 227; Bloom v. West, 3 Colo. App. 212, 32 P. 846; Senior v. Anderson, 138 Cal. 716, 72 P. 349; Rev. Codes of Idaho, secs. 3111, 3262.)

Davidson & Bacon, for Respondent.

"The owner of a right to the use of water under a rental system may sell and dispose of such right and have the place of use of such water changed to other lands." (Hard v. Boise City Irr. Co., 9 Idaho 589, 76 P. 331, 65 L. R. A. 407.)

The proceedings relative to the approval and confirmation of the proceedings of an irrigation district do not involve the contract relations of parties, but relate solely to the assessment of benefits under the irrigation district law. (Knowles v. New Sweden Irr. Dist., 16 Idaho 235, 241, 101 P. 81.)

Since a water right is a distinct subject of grant, and transferable either with or without the land, whether a deed to the land conveys the water right depends upon the intention of the grantor, which is to be gathered from the expressed terms of the deed; or, when the deed is silent as to the water right, from the presumption that arises from the circumstances and whether the right is essential to the beneficial enjoyment of the land. (Arnett v. Linhard, 21 Colo. 188, 40 P. 355.)

AILSHIE, J. Stewart, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

A motion was made in this case to strike the statement from the transcript and to dismiss the appeal, on the ground that the record contains no certificate by the judge showing that the statement was used on the hearing of the motion for a new trial. While that is true, it does contain a stipulation signed by the attorneys which shows that the statement contained in the transcript was used on the hearing of the motion. This constitutes a sufficient identification, and it therefore follows that the motion must be denied. The affidavit on motion for new trial must be stricken from the transcript, for the reason that it is not incorporated in a statement or bill of exceptions.

This appeal involves a water right of seven and one-half inches of water from what is now known as the Nampa and Meridian Irrigation District canal. Some twenty years ago the respondent herein acquired an eighty-acre tract of land under the Ridenbaugh canal in Ada county, and at the same time secured a water right to the extent of thirty inches from the Ridenbaugh canal for the irrigation of this eighty acres. With this water right and some waste water which he was able to collect he reclaimed the entire tract of eighty acres and cultivated the same until the year 1901, when he sold twenty acres of it to his daughter, Lydia M. Irland. The deed to his daughter appears to have been in the usual form conveying the land "together with appurtenances," but contained no specific mention of any water right. The respondent continued to cultivate and irrigate his remaining sixty acres, and the daughter continued the cultivation and irrigation of the twenty purchased by her, the same as had been done during the previous years. During the time the daughter owned the twenty acres, the respondent paid the water rents for the entire eighty acres and took receipts therefor, the same as he had always done, and no controversy arose over the water right. In 1905 the Nampa and Meridian Irrigation District was organized and acquired the Ridenbaugh canal system. The district thereafter proceeded in conformity with the statute to issue irrigation district bonds and caused the benefits to be apportioned and assessed in conformity with law. In doing so, the district assessed benefits for twenty-two and one-half inches of water against the sixty-acre tract still owned by the respondent, and for seven and one-half inches against the twenty-acre tract owned by Lydia M. Irland. This proceeding had by the district was duly and regularly confirmed by the court, which judgment has long since become final. In June, 1907, Lydia M. Irland sold and transferred her twenty-acre tract to Guy Matthews, and Matthews thereafter conveyed to the appellants, Newton Irish and Minnie Irish. Immediately after the transfer by Lydia M. Irland, trouble began to brew between the purchasers and respondent over the water right, respondent claiming the entire water right of thirty inches for his sixty-acre tract, while the purchaser, Guy Matthews, and his grantees, the appellants herein, claimed seven and one-half inches of the original water right as appurtenant to the twenty-acre tract. The irrigation district took the view held by the appellants and refused to deliver more than twenty-two and one-half inches to the respondent, and refused to accept payment of rent from him for any greater quantity of water. He thereupon commenced an action against the company for a writ of mandate to compel them to deliver him the full thirty inches, and upon the application of the company the appellants were brought into the case to set up their rights and have the same adjudicated. After a hearing the court...