Smith v. North Canyon Water Co.

• Citation: 52 P. 283,16 Utah 194
• Decision Date: 02 March 1898
• Docket Number: 894
• Court: Supreme Court of Utah
• Parties: JOHN SMITH, APPELLANT, v. NORTH CANYON WATER COMPANY, RESPONDENT

52 P. 283

16 Utah 194

JOHN SMITH, APPELLANT, v. NORTH CANYON WATER COMPANY, RESPONDENT

No. 894

Supreme Court of Utah

March 2, 1898

Appeal from the Second district court, Weber county. H. H. Rolapp Judge.

Action by John Smith against North Canyon Water Company. Decree for defendant, and plaintiff appeals.

This action was brought September 30, 1896, to quiet title to 13 1/2 shares, or 13 1/2-212, of a stream of water known as "North Canyon Creek," in Davis county, and $ 2,000 as damages for withholding said water from the plaintiff for a period of four years next prior to the commencement of this suit. The testimony given in the case is not reported, but it appears from the findings of fact that, in 1877, Bent Rolfson and others organized the defendant water company, and assumed control of the water of North Canyon creek, in Davis county. At this time Rolfson was the owner and the company acknowledged his right to have 10 acres of water right which was claimed and used on land owned by him, and during the years 1877, 1878, and 1879, at least, he paid the water taxes thereon. The land had been unsurveyed, and subsequently it was discovered that one Howard, who also owned a water right of 3 1/2 acres, independent of Rolfson's interest, was occupying land claimed by Rolfson. Thereupon Howard relinquished his right to said land and water right to Rolfson, who continued to use the same. In 1884, Rolfson made a quitclaim deed to his land now owned by plaintiff, which included the land relinquished by Howard, to one Pitt, as security for a debt due from Rolfson to Pitt. In 1887 Rolfson sold the same land to the plaintiff by verbal sale and consented and agreed that Pitt should convey the land by deed to the plaintiff. The deed from Rolfson to Pitt and from Pitt to the plaintiffs were ordinary quitclaim deeds, and it nowhere appeared therein that Rolfson's deed was intended as a mortgage. No reference was made in either deed to the water, except that the deeds were for such appurtenances as belonged to the land. At the time of the sale Rolfson delivered to plaintiff a receipt for water taxes levied upon and paid by him after the organization of the district. No water shares for stock were issued by the water district to any owner. The water district company agreed, in 1878, that each owner should only draw water for the land he cultivated and such land was taxed at 15 cents per acre. In May, 1880, a resolution was passed by the water company providing that water should temporarily be withheld from land not planted in season. The by-laws of the district adopted at its organization, and not repealed until 1887, provide that water should belong to the lands, and not to the individuals, and that no one could give away or sell water independent from the land. If the owner did not need it, the water master, on notice, would dispose of its use. Since the plaintiff purchased and occupied the land in 1887, he has been prevented by defendant from using more than 3 1/2 shares of water right, except when he took and used water without the knowledge or consent of the defendant. Notwithstanding this, the plaintiff had each year insisted upon and demanded his 10 acres of water right, and on one occasion, in 1893, he took water from defendant's ditch for irrigating said 10 acres, under his claim of right, and on three or four occasions, in 1894, he took and used such water for irrigating his 10 acres, under the advice of an attorney. When such use was discovered, it was interrupted. Neither Rolfson nor Pitt ever had any notice that their water right was terminated or extinguished, or that their co-tenants held the water adversely to them. The use of the 10 acres of water was worth $ 5 per acre per annum. The complaint alleges and the answer admits that the North Canyon creek is divided into 212 shares. Upon such facts the court found that since the organization of the water district, in 1877, all the owners of their acknowledged water rights therein, including the 10 acres for Rolfson, became tenants in common, and that the possession of one tenant was the possession of all co-tenants; that none of the co-tenants held, or claimed to hold, adversely to Rolfson; that as to Rolfson there was no ouster or relinquishment of his rights; that up to the time of the transaction between Rolfson and the plaintiff, in 1887, Rolfson was the owner of 10 acres of water right in the district, but, by reason of the failure to make proper conveyance, he abandoned that right; that plaintiff's right did not commence until he actually appropriated water, in 1887, and, not having shown an appropriation of more than 3 1/2 acres of water, he was not entitled to any further right therein, nor to any damages.

Reversed.

Wilson & Willey, for appellant.

Stephens & Smith, for respondent.

MINER J., delivered the opinion of the court. ZANE, C. J., and BARTCH, J., concur.

OPINION

MINER, J.

It clearly appears that at the time of the organization of the water district of the defendant, in 1877, Rolfson, the plaintiff's predecessor in interest, had an unquestioned right to 10 acres of water, or 10-212 of the water, owned by the company in the North Canyon creek. This right was not diminished by the relinquishment of 3 1/2 acres of water from Howard to him. Rolfson, after such organization, took possession and used the water on 10 acres of his 120-acre farm, at least for the years 1877, 1878, and 1879, and paid all the taxes levied upon his right. His right to this water was never in any way questioned or disputed by the defendant, or any co-tenant, up to the time he sold the land to which the right was appurtenant. By associating together under the irrigation laws of 1876. Rolfson and his associates became tenants in common of the waters of that stream, and each landholder of such district was equally entitled to the use of the water brought into such district, according to their rights, by paying their proportionate share of the expense. It nowhere appears that the taxes and expenses were not paid. 2 Comp. Laws Utah, § 2403; Freem. Co-Ten. § 88; Kin. Irr. § 301; Bradley v. Harkness, 26 Cal. 69.

The use of the water in question for several years subsequent to 1879 is not disclosed by the testimony or findings, and no negative findings appear, but that Rolfson actually used the water for at least three years. It appears by the resolutions and by laws of the company that owners of water rights could only draw water for the land under cultivation, and that land not planted in season should not be allowed water. It does not appear from the findings that the water was not withheld on account of the provisions of these resolutions. It nowhere appears that the defendant or any co-tenant held adversely to Rolfson or his grantee. Whatever the truth may be, the findings concede this fact. The burden of proving an ouster of the tenant in common, as in proving adverse possession under the statute of limitations, devolves upon the co-tenant who asserts it. Inasmuch as no finding was made upon this subject, the presumption is that the water was continued to be used with right by Rolfson. The possession of one tenant in common is the possession of all his co-tenants. There is no element of hostility in such possession, and an adverse holding will not operate as an ouster, and set the statute of limitations running, until the tenant out of possession has some notice of such adverse holding. Such possession cannot be considered adverse, unless there was an...