Short v. Praisewater

• Decision Date: 31 July 1922
• Parties: FRANK SHORT, Appellant, v. JOHN M. PRAISEWATER and ETHEL PRAISEWATER, His Wife, Respondents
• Court: Idaho Supreme Court

208 P. 844

35 Idaho 691

FRANK SHORT, Appellant, v. JOHN M. PRAISEWATER and ETHEL PRAISEWATER, His Wife, Respondents

Supreme Court of Idaho

July 31, 1922

SPECIFIC PERFORMANCE-ENTRYMAN ON GOVERNMENT HOMESTEAD-RIGHT TO CONVEY WATERS OF SPRING THEREON-WHEN WATERS OF SPRING ON GOVERNMENT LAND SUBJECT TO APPROPRIATION.

1. An entryman on a government homestead may, prior to patent transfer by warranty against his own act a right to the use of the waters of a spring situate wholly upon such homestead entry, with a right of way over said entry for carrying such water to the place of intended use, such grant not being in contravention of U.S. Rev. Stats., sec. 2290, which requires a homestead entry to be made for the purpose of actual settlement and cultivation, and not directly or indirectly for the use or benefit of other persons.

2. The water of a spring situate wholly upon a government homestead entry is subject to appropriation for beneficial use, with the consent of the entryman.

APPEAL from the District Court of the Eighth Judicial District, for Benewah County. Hon. John M. Flynn, Judge.

Action for specific performance of an agreement to convey. From judgment for defendants, plaintiff appeals. Reversed and remanded, with instructions.

Judgment reversed and cause remanded, with instructions. Costs awarded to appellant.

W. D Keeton, for Appellant.

Upon reading the several acts of Congress it must be found to be the intention of the legislature to be most liberal in extending to all persons the right to use water on public lands, and to secure to them this right as against the settler when the use is for a beneficial purpose, and the act, sec. 2288, Rev. Stats., in effect declares it was not the intention of Congress to bar the settler from making those reasonable and necessary transfers and granting those privileges for easements subject to which every person holds his property. (United States v. Reed, 28 F. 482; Methow Cattle Co. v. Williams, 64 Wash. 457, 460, 461, 117 P 239.)

Springs may be appropriated as water in a watercourse, and when a spring furnishes a stream of water that rises to the surface the right of appropriation attaches: (Wiel, Water Rights, sec. 92; Wilkins v. McCue, 46 Cal. 656; Shenandoah Min. etc. Co. v. Morgan, 106 Cal. 409, 39 P. 80; Brosnan v. Harris, 39 Ore. 148, 87 Am. St. 649, 65 P. 867, 54 L. R. A. 628.)

"The fundamental and only restrictions . . . . imposed on a bona fide homesteader by the act of Congress are that he shall enter upon the land for his own exclusive use, and with the honest purpose and intention of residing upon and cultivating it for five years." (Grubbs v. United States, 105 F. 314, 44 C. C. A. 513; King-Ryder Lumber Co. v. Scott, 73 Ark. 329, 84 S.W. 487, 70 L. R. A. 873; St. Louis Min. & Mill. Co. v. Montana Min. Co., 171 U.S. 650, 655, 19 S.Ct. 61, 63, 43 L.Ed. 320, 322; Orrell v. Bay Mfg. Co., 83 Miss. 800, 36 So. 561, 70 L. R. A. 881.)

A prescriptive right is acquired in Idaho in five years to the use of water. (Brossard v. Morgan, 7 Idaho 215, 61 P. 1031; Wiel on Water Rights, 3d ed., p. 629, sec. 583.)

Where the question of public policy under the United States statutes is not involved, an agreement like in the case at bar should be specifically enforced. (C. S., sec. 7975; Stowell v. Tucker, 7 Idaho 312, 62 P. 1033; Francis v. Green, 7 Idaho 668, 65 P. 362; Barton v. Dunlap, 8 Idaho 82, 66 P. 832; Fleming v. Baker, 12 Idaho 346, 85 P. 1092.)

A license will be enforced in equity where valuable improvements have been made. (Rerick v. Kern, 14 Serg. & R. (Pa.) 267, 16 Am. Dec. 497; Stoner v. Zucker, 148 Cal. 516, 113 Am. St. 301, 1 Ann. Cas. 704, 83 P. 808.)

The appropriation of the water was expressly authorized by the United States government, and whatever rights respondent had were sold for a valuable consideration by him to appellant. (Maffet v. Quine, 95 F. 199.)

The time fixed for respondent to make the conveyance was proper, for had the respondent for any reason failed to complete his homestead entry appellant would hold under grant from the United States. (Le Quime v. Chambers, 15 Idaho 405, 98 P. 415, 21 L. R. A., N. S., 76.)

Title to land is in no way concerned. (Wiel, Water Rights, 3d ed., sec. 281.)

W. F. McNaughton and Post, Russell & Higgins, for Respondents.

In the absence of a written agreement subscribed by the parties sought to be charged, another person cannot acquire any right in the land of another or any water in the land of another, and any right that such person has to take water and cross the land, as in this case, is permissive, and may be revoked at will. (Marshall v. Niagara Springs Orchard Co., 22 Idaho 144, 125 P. 208.)

Under the law of the United States existing at that time, the respondent could not make a contract that alienated the whole or any part of his homestead claim or any interest in said land. (Anderson v. Carkins, 135 U.S. 483, 10 S.Ct. 905, 34 L.Ed. 272; Mellison v. Allen, 30 Kan. 382, 2 P. 97; Bailey v. Sanders, 228 U.S. 603, 33 S.Ct. 602, 57 L.Ed. 985; Cascade Public Service Corp. v. Railsback, 59 Wash. 376, 109 P. 1062; Armstrong v. Henderson, 16 Idaho 566, 102 P. 361; Jackson v. Baker, 48 Ore. 155, 85 P. 512.)

The contract sought to be enforced by the plaintiff is void as being against the public policy of the United States. (McCrillis v. Copp, 31 Fla. 100, 12 So. 643; Kine v. Turner, 27 Ore. 356, 41 P. 664; Horseman v. Horseman, 43 Ore. 83, 72 P. 698; Robinson v. Jones, 31 Neb. 20, 47 N.W. 480; Carley v. Gitchell, 105 Mich. 38, 55 Am. St. 428, 62 N.W. 1003; 13 C. J. 507; Adams v. Church, 193 U.S. 510, 24 S.Ct. 512, 48 L.Ed. 769.)

LEE, J. Rice, C. J., and McCarthy and Dunn, JJ., concur.

OPINION

LEE, J.

This action was commenced to enforce specific performance of an agreement to convey a perpetual right to the use of the waters of a spring on respondents' premises, with a right to use fifty feet square upon which said spring is situated, and an eight-foot right of way over respondents' land extending from said spring to the lands of appellant, along the pipe-line laid by appellant to carry said water, with a right of ingress and egress over respondents' lands, and the use of said lands for the purpose of repairing and improving the facilities for the use of said water, and an injunction perpetually restraining respondent and all other persons from in any manner interfering with the right of appellant to the use of said water, and to quiet appellants' title to said use.

The cause was tried by the court, and it found that in April 1911, the defendant John M. Praisewater, respondent herein, agreed to sell to plaintiff, appellant herein, the exclusive right to use the water of that certain spring situate on the NE. 1/4 of Sec. 6, T. 43 N., R. 4 W., B. M., Benewah county, Idaho, with the right to pass over and use fifty feet square in the center of which said spring is situated, and the right to pass over and use a tract of land eight feet wide and about five hundred feet long, extending from said spring in a southeasterly direction to appellant's land, which adjoins respondents' land on the east; that said parties agreed that appellant should have the permanent and continual use of the water from said spring and the permanent and continual right to pass over and around the same on said fifty-foot square of land, and the tract eight feet wide extending about five hundred feet southeasterly from said spring to appellant's land, and gave appellant a permanent, continuous and exclusive right of ingress and egress from and to said spring, over and along said strip, with a right to fence the same for the purpose of protecting said spring, and that appellant paid the agreed purchase price of $ 100 in full consideration for the same; that at the time of said sale, respondent held said land upon which this spring is situate under a government homestead entry, and had further agreed that as soon as patent was issued to him from the United States, he would convey said right to said spring and the right to use the land described as a right of way, by good and sufficient deed of conveyance, to appellant; that at the time of making said agreement to purchase, about May 9, 1911, appellant went into possession of the spring and the land leading to and about the spring, and that respondent aided appellant in cleaning out the spring, boxing the same, and laying an underground pipe from the spring across said right of way to appellant's land for the purpose of conveying the water of the spring to appellant's premises; and that ever since, until about November, 1919, appellant has been in peaceful possession of said spring, under a claim of right to use the water and the fifty foot square around the spring and the eight-foot strip of land for right of way, and the same has never been inclosed by appellant, nor has he paid any taxes on the same, but during all of said time has used the water of said spring for domestic purposes, carrying said water over this right of way, and has continuously passed to and from said spring; and further, that respondent did not make final proof on his homestead entry until 1917, and patent was issued in January, 1918; that after receiving patent he married respondent Ethel Praisewater; that appellant is the owner of the NW. 1/4 of Sec. 5, T. 43 N., R. 4 W., B. M., in said Benewah county, which adjoins the land of respondent, upon which said spring is located; and that in October, 1919, appellant demanded of respondent a deed of conveyance in accordance with the said sale agreement, but such demand was refused, and respondent previous to the commencement of this action cut the pipe-line and stopped the flow of the water to appellant's land, and refuses appellant the right to the...