Swank v. Sweetwater Irrigation & Power Co., Ltd.

• Decision Date: 12 November 1908
• Citation: 98 P. 297,15 Idaho 353
• Parties: LUCY J. SWANK and LEWIS J. SWANK, Appellants, v. SWEETWATER IRRIGATION AND POWER COMPANY, LTD., Respondents
• Court: Idaho Supreme Court

98 P. 297

15 Idaho 353

LUCY J. SWANK and LEWIS J. SWANK, Appellants, v. SWEETWATER IRRIGATION AND POWER COMPANY, LTD., Respondents

Supreme Court of Idaho

November 12, 1908

SUIT TO QUIET TITLE-UNRECORDED DEED-ADVERSE POSSESSION-PAYMENT OF TAXES-NOTICE OF USE AND OCCUPATION-WATER RIGHT AND EASEMENT-PLEADING INFORMATION AND BELIEF-NATURE OF PLEADING DETERMINED BY FACTS ALLEGED.

1. Where S. took a conveyance of real property and paid a valuable consideration therefor and had no notice of an outstanding unrecorded deed for a ditch and right of way through the property, and recorded her deed of conveyance prior to the recording of the outstanding deed for ditch and right of way, under sec. 3001, Rev. Stat., the unrecorded deed is void as against such subsequent purchase.

2. Where a purchaser of a right of way for a ditch across a tract of land has failed to record its conveyance prior to the record of a subsequent conveyance made in good faith, and in an action to quiet title seeks to recover on the grounds of adverse possession for the statutory period, the extent of the right of way or easement must be determined by the facts proven as to the extent of the use and occupation, and cannot be determined by the calls of such unrecorded deed.

3. Under the provisions of sec. 4043, Rev. Stat., adverse possession cannot be established unless it is shown that the land has been occupied and claimed for the period of five years continuously, and the claimant or his predecessors in interest have paid all taxes, state, county and municipal which have been levied and assessed upon such land according to law.

4. In a case where a party seeks to establish his right and title to real estate under the law of adverse possession, he must prove, and the court must find, that he has paid or caused to be paid all the taxes which have been levied and assessed against the property for five years continuously, or that the property was exempt from taxation or has never been assessed.

5. Under the provisions of sec. 1402, Rev. Stat., as adopted by act of February 10, 1899 (Sess. Laws 1899, p. 221), all irrigating canals and ditches and water rights appurtenant thereto are exempt from taxation when the owner or owners of the canals and ditches use the water thereof exclusively upon land owned by the owner of the ditches and water right, but where any water is sold or rented from such canal or ditch, the same is taxable to the extent of the sale or rental. Under the provisions of this statute it becomes a question of fact in each case as to whether or not a canal or ditch or water right is taxable in whole or in part or is entirely exempt from taxation.

6. The fact that a party has located a water right and filed his notice thereof in accordance with law does not give him any right to build ditches and canals across the lands of others until he has acquired the easement and right of way therefor either by purchase or condemnation. The ownership of a water right does not necessarily imply that the ownership of the ditch through which the water flows is vested in the same person. The ownership of the ditch and the ownership of a water right for water to flow through such ditch may exist in different parties.

7. An allegation in a complaint that "defendant is informed and believes" that certain facts exist, without further alleging on such information and belief that those facts do exist, is not a sufficient allegation of any issuable fact.

8. The name and character of a pleading must be determined by the facts alleged, and the relief asked by the pleader. The right to recover will not be limited by the name given to the pleading by the pleader, except in such cases as the action and conduct of the pleader has misled the adverse party to his prejudice.

(Syllabus by the court.)

APPEAL from the District Court of the Second Judicial District, for the County of Nez Perce. Hon. Edgar C. Steele, Judge.

Action by plaintiffs to quiet title. Answer and cross-complaint by defendant praying for a decree establishing its title. Judgment for defendant and plaintiffs appeal. Reversed.

Judgment reversed and a new trial granted. Costs awarded in favor of appellant.

D. E Hodge, and Chas. L. McDonald, for Appellants.

An allegation that defendant believes so and so is not an allegation of fact on information and belief. It entitled defendant to introduce no evidence, because its information and belief are immaterial. The allegation is insufficient to raise any issue. (Bank of North America v. Rindge (Cal.), 57 F. 279.)

"If A, without notice of a prior unrecorded deed or encumbrance, purchases from B, who had notice, his title is free." (London v. Youmans, 31 S.C. 147, 17 Am. St. Rep. 17, 9 S.E. 775; 2 Pomeroy's Eq. Jur., sec. 754.)

Water rights and ditches are distinctly different subjects of property, each may be owned independently of the other. (Ada Co. etc. Co. v. Farmer's Canal Co., 5 Idaho 793, 51 P. 990, 40 L. R. A. 485; Stocker v. Kirtley, 6 Idaho 795, 59 P. 891; Parke v. Boulware, 7 Idaho 490, 63 P. 1045; McLear v. Hapgood, 85 Cal. 555, 557, 24 P. 788; Gould v. Maricopa Canal Co., 8 Ariz. 429, 76 P. 598.)

There is not one word of evidence of respondent's ever having paid any taxes. Sec. 4043, Rev. Stat., is mandatory, and one claiming adverse possession must show that he has paid all the taxes. (Green v. Christie, 4 Idaho 438, 40 P. 54; Brose v. Boise etc. Ry. Co., 5 Idaho 694, 51 P. 753.) When land is assessed the taxes must be paid by the adverse claimant, regardless of whom they are assessed to. (Ross v. Evans, 65 Cal. 439, 4 P. 443; Reynolds v. Williard, 80 Cal 605, 22 P. 262; Monti v. Bishop, 3 Colo. 605; Nippel v. Hammond, 4 Colo. 211; Reed v. Newton, 22 Minn. 541; Quebec Bank v. Weyand, 30 Ohio St. 126.)

Geo. W. Tannahill, for Respondent.

The affirmative defense may be treated as a cross-complaint, although not so designated in the title. (Hibernia Savings & Loan Society v. London etc. Ins. Co., 138 Cal. 257, 71 P. 334.) Character of pleading must be determined by court from its allegations. It is immaterial what pleader styles it. (Mills v. Fletcher, 100 Cal. 142, 34 P. 637; Harrison v. McCormick, 69 Cal. 616, 11 P. 456; Holmes v. Richet, 56 Cal. 307, 38 Am. Rep. 54; Gregory v. Bovier, 77 Cal. 121-124, 19 P. 232.) The defendant's ditch is exempt from taxation under the provisions of sec. 1312, Code 1901.

"The requirement of payment of taxes as an evidence of adverse possession has been held not to apply where no taxes have been assessed." (Baldwin v. Temple, 101 Cal. 396, 35 P. 1008; Coonradt v. Hill, 79 Cal. 591, 21 P. 1099; Heilbron v. Last Chance Water Ditch Co., 75 Cal. 123, 17 P. 65; Ross v. Evans, 65 Cal. 439, 4 P. 443; Quinlan v. Noble, 75 Cal. 250, 17 P. 69; Spence v. Stanley et al., 87 Tex. 604, 30 S.W. 435.)

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

OPINION

AILSHIE, C. J.

This action was commenced by the appellants in the lower court for the purpose of quieting their title to a strip of land 25 feet wide running across their farm and being 12 1/2 feet on each side of the center of an irrigation ditch. The defendant answered denying the material allegations of the complaint, and alleging title in itself by deed of conveyance and also by adverse possession. It also pleaded the statute of limitations. Judgment was entered in favor of the defendant. Plaintiffs moved for a new trial and the motion was denied, and they appealed from the judgment and order.

On January 20, 1905, the appellant, Lucy J. Swank, through the agency of her husband, Lewis J. Swank, purchased the SE 1/4 of the NE. 1/4 of Sec. 5, Tp. 34 N., R. 4, W. B. M., in Nez Perce county, and took title to the whole thereof by warranty deed. The chain of title as appeared by the records was perfect and was deraigned through mesne conveyance from the United States government. On December 14, 1905, almost a year after the Swank purchase, there was filed for record a warranty deed from Eben Mounce and wife to the respondent Sweetwater Irrigation and Power Company, Ltd., conveying the land occupied by the ditch with a strip 12 1/2 feet wide on each side of the center thereof. The Mounce deed was executed and delivered on November 28, 1898, and at the time of its execution and delivery Mounce was the owner of the entire tract of land through which the ditch was constructed. It is conceded that the Swanks had no knowledge of the existence of this deed at the time of their purchase of the land. The only knowledge they had as to the title and ownership of the ditch being vested in anyone other than the owner of the tract of land was the fact of the existence of the ditch itself and the conversation that took place at the time of the purchase between Lewis J. Swank and Gus A. Swanson, the immediate grantor to Lucy J. Swank. The purchase was made in January, and at that time there was no water running through the ditch. It was not in the irrigating season and was at the time of the year when the ditch was not in repair. It appears, however, that the ditch was from 2 to 3 feet wide at the bottom and from 3 to 5 1/2 wide at the top, and from 2 to 3 feet deep. In order to cross the ditch with wagons and teams it was necessary to keep it bridged at such places as they desired to cross. At the time of the purchase Swanson told Swank that he had been irrigating a tract of land that lay a mile or so to the northwest of this ranch, which belonged to the Vollmers. The ditch entered the farm somewhere on the southeast and ran across to the northwest and some miles beyond. The water that was carried through this ditch was received from the Sweetwater creek a number of miles distant from this farm. The irrigating company had been in possession of this ditch and right...