Stowell v. Tucker

• Decision Date: 21 November 1900
• Citation: 7 Idaho 312,62 P. 1033
• Parties: STOWELL v. TUCKER
• Court: Idaho Supreme Court

62 P. 1033

7 Idaho 312

STOWELL v. TUCKER

Supreme Court of Idaho

November 21, 1900

WATER RIGHT-INJUNCTION.-An oral contract was made under which one party acquired a right of way and constructed an irrigating ditch over the lands of another under agreement that the latter should take fifty inches of water from said ditch annually for the irrigation of said lands; after sixteen years, the successor in interest of the former commenced an action to enjoin the successor in interest of the latter from taking said fifty inches of water, claiming that said oral contract was void because not in writing. Held, that injunction does not lie in favor of plaintiff.

COMMUNITY PROPERTY.-Real estate conveyed to the wife during coverture is presumed to be community property in the absence of a showing to the contrary.

HUSBAND AND WIFE.-Real estate occupied as a residence by husband and wife cannot be alienated or encumbered by the sole act of the husband.

DISCLAIMER.-In an action against husband and wife relating to a water right appurtenant to real estate occupied by them as a residence the husband filed a disclaimer. Held, that such disclaimer does not affect the community rights of the defendants in or to the subject matter of the action, and that the wife may defend such action.

(Syllabus by the court.)

APPEAL from District Court, Blaine County.

Judgment affirmed. Costs of appeal awarded to respondents.

George M. Parsons and P. M. Bruner, for Appellants.

Our court has decided that in order to establish adverse possession, the party claiming must prove payment. (Brose v. Boise City Ry. etc. Co., 5 Idaho 694, 51 P. 753.) The right to water, in this state, is acquired by location; the water right and ditch conveying it are real property under our statute. (Rev. Stats., sec. 2825; Ada Co. Farm. Irr Co. v. Farmers' Canal Co., 5 Idaho 793, 51 P. 990.) The right to the use of water carries with it no specific property in the water itself. (Kidd v. Ladd, 15 Cal 161, 76 Am. Dec. 472.) The judgment of the lower court relieves the defendant from the necessity of bearing the burden of sharing the expense of keeping up the ditch or any part of it, or of paying any taxes, and puts this burden upon the plaintiff. It also sets aside the constitutional provision that water is dedicated to a public use when it is sold, rented or distributed, as in this case. (Const., art 15, sec. 1; Wilterding v. Green, 4 Idaho 773, 45 P. 134; Laws 1895, pp. 178, 179.) To constitute adverse possession, there must be peaceable possession, submitted to without objection or challenge. (Hanson v. McCue, 42 Cal. 310, 10 Am. Rep. 299; Cave v. Crafts, 53 Cal. 138.) It must be exclusive in order to ripen into a title, and this can never be the case where possession is joined with the owner. (Hopkins on Real Property, 465.)

Lyttleton Price and L. L. Sullivan, for Respondents.

We append the following citations of authority upon the question of adverse possession and statute of limitations, with which we beg to submit that the judgment and decree of the lower court ought not to be disturbed. (Kinney on Irrigation, sec. 293, and cases cited, especially note 2, and sec. 294, and cases cited.)

QUARLES, J. Huston, C. J., and Sullivan, J., concur.

OPINION

QUARLES, J.

This action was brought by the appellants to obtain an injunction against the defendants, restraining said defendants "from preventing plaintiffs [appellants] from putting in a proper box or boxes for the measurement of fifty inches of water," and to restrain defendants from interfering with the flow of water through that certain ditch of plaintiffs described in plaintiffs' complaint. The following facts appear in the record: One Wolters, who formerly owned the land of the defendant Nancy M. Tucker, entered into an oral agreement with the predecessor in interest of appellants, the Idaho and Oregon Land Improvement Company, that the latter might construct what is known and described in the record as the "Big ditch," across the land of said Wolters in consideration of which right of way said Wolters should take annually from said ditch fifty inches of water for the irrigation of his said lands. Said Idaho and Oregon Land Improvement Company constructed said ditch for the purpose of conveying water from the Big Wood river to and upon lands in and adjacent to the town of Hailey, Idaho for irrigation purposes, said ditch being built for the purpose of selling or renting water for irrigation purposes; and said ditch was, under said agreement, constructed by said company over and across the lands of said Wolters. Afterward, by purchase, the respondent Nancy M. Tucker became the owner of said lands, the same being conveyed to her by said Wolters. And the appellant, by purchase, became the owner of said Big ditch. Said ditch was constructed about the year 1883. The respondent Tucker for more than six years prior to the commencement of this action used fifty inches of water out of said ditch, with the knowledge of appellants, under claim of right, as the successor in interest of said Wolters, and in addition to which she rented annually from appellants fifty inches of water, making in all one hundred inches used by the respondent for the irrigation of the said lands purchased by her from said Wolters. In 1899 one W. T. Riley, acting as agent for the appellants, prepared and was...