Syster v. Hazzard

• Decision Date: 02 June 1924
• Citation: 229 P. 1110,39 Idaho 580
• Court: Idaho Supreme Court
• Parties: MARY E. SYSTER, Appellant, v. WILLIAM C. HAZZARD, MUTUAL LIGHT, HEAT & POWER COMPANY, E. J. FINCH, Trustee, LOUISE HAZZARD and FARMERS' MUTUAL POWER COMPANY, a Corporation, Respondents

229 P. 1110

39 Idaho 580

MARY E. SYSTER, Appellant, v. WILLIAM C. HAZZARD, MUTUAL LIGHT, HEAT & POWER COMPANY, E. J. FINCH, Trustee, LOUISE HAZZARD and FARMERS' MUTUAL POWER COMPANY, a Corporation, Respondents

Supreme Court of Idaho

June 2, 1924

STATE ENGINEER'S PERMIT-WORK DONE UNDER ONE PERMIT APPLIED ON ANOTHER-ABANDONMENT-TITLE VESTED BY SHERIFF'S CERTIFICATE-CONFLICT OF EVIDENCE-TRESPASS-ESTOPPEL.

1. The holder of a State Engineer's permit to construct a power plant, which permit he had purchased together with the uncompleted work under a permit antedating his own originally issued to a third party for the same purpose immediately applied such work to his junior permit. Held that, while such application was proper as an original expenditure under the junior permit, the senior permit was thereby abandoned.

2. Where the record discloses a substantial conflict in the evidence, the findings of the trial court thereon will not be disturbed on appeal.

3. A sheriff's certificate of sale of real property vests in the purchaser the legal title subject to the right of redemption only, and upon the issuance of the sheriff's deed, the full title relates back to the date of such certificate.

4. Where an owner of real property encourages one believing himself the owner to construct valuable improvements thereon such person is estopped from claiming trespass.

APPEAL from the District Court of the Fourth Judicial District, for Gooding County. Hon. H. F. Ensign, Judge.

Action to cancel water permits and for injunction. Judgment for defendant. Modified and affirmed.

Decree affirmed. Costs awarded to respondents.

Hawley & Hawley, Richards & Haga and C. T. Ward, for Appellant.

The statute under which Permits Nos. 7056 and 10415 were issued required that one-fifth of the construction work shall be done within one-half of the period allowed for the completion of the said works, and that the works be completed within five years from the approval of the application. The evidence shows that these statutory requirements were not met. (C. S., secs. 5569, 5584; Basinger v. Taylor, 30 Idaho 289, 164 P. 522; Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073; Bennett v. Twin Falls etc. Co., 27 Idaho 643, 150 P. 336.)

The respondent Hazzard under no circumstances can claim that he performed one-fifth of the work under Permit No. 10415, since he did not have title to the works which had been previously constructed under Permit No. 7056 until September 17, 1917, and under the terms of said Permit No. 10415 one-fifth of the work was required to be completed by January 8, 1917. ( Clark v. Hansen, 35 Idaho 449, 206 P. 808; 3 James on Mortgages, 7th ed., sec. 653; Cantwell v. McPherson, 3 Idaho 721, 34 P. 1095; Boise Title & Trust Co. v. Pfost, 32 Idaho 743, 188 P. 38; Washington State Sugar Co. v. Goodrich, supra.)

The State Engineer had no power to grant the extension he granted under date of June 23, 1917, because the time for completing the works under Permit No. 7056 had expired on January 28, 1916. (C. S., secs. 5570, 5575.)

The trial court struck out of the complaint paragraph X at the opening of defendants' case, and refused to admit evidence on the point that Permit No. 7056 was initiated in fraud on the State Engineer, yet the court found on the issues presented by said paragraph X and there is some evidence in the record supporting appellant's contentions. (C. S., sec. 6830; Wheeler v. Oregon Ry. & Nav. Co., 16 Idaho 375, 102 P. 347; Ludwig v. Ellis, 22 Idaho 475, 126 P. 769.)

George Herriott, Bothwell & Chapman, Turner K. Hackman and Harry C. Wyman, for Respondents.

The only issue involved in the case at bar is the cancelation of Permits Nos. 7056 and 10415; hence there was nothing in the case which would take it out of the provisions of C. S., sec. 5592. (Pollard v. Bailey, 20 Wall. (U.S.) 520, 22 L.Ed. 376.)

A sheriff's deed relates back to the time of sale and, when issued, vests title as of date of sale, and a purchaser who has purchased works at sheriff's sale and has a certificate of sale therefor has a sufficient title, prior to issuance of sheriff's deed, to enable him to apply the works bought in fulfilment of terms of permit as to completion of one-fifth of work of diversion within one-half time. (First Nat. Bank v. Lieuallen, 4 Idaho 431, 39 P. 1106; Foorman v. Wallace, 75 Cal. 552, 17 P. 680; Bagley v. Ward, 37 Cal. 121, 99 Am. Dec. 256; McMillan v. Richards, 9 Cal. 365, 70 Am. Dec. 655; Porter v. Pico, 55 Cal. 165; Robinson v. Thornton, 3 Cal. Unrep. 741, 31 P. 936; Riley v. Nance, 97 Cal. 203, 31 P. 1126, 32 P. 315; 17 Cyc. 1350; 21 Am. Digest, Cent. ed., under "Executions," secs. 760, 946 and 948; 8 Dec. Ed. Am. Dig., "Execution," sec. 266.)

The plaintiff cannot raise the question of the ownership or possession of the works bought, at the time the same were applied to Permit No. 10415, as she was not the owner nor entitled to possession, and, further, she had no interest in the waters in dispute at that time, as her postdated permits were not applied for until after the issuance of sheriff's deed. (Utt v. Frey, 106 Cal. 392, 39 P. 807; Tobey v. Bridgewood, 22 Idaho 566, 127 P. 178.)

Notwithstanding the point of diversion in Permit No. 10415 is the same as that in Permit No. 7056 and the specifications similar, the owner of No. 10415 would have the right to apply the works bought by him which were constructed under No. 7056 in performance of the terms of No. 10415, and there would be a merger of No. 7056 in No. 10415. (1 Wiel on Western Water Rights, 3d ed., p. 420, sec. 390.)

If works could not be applied as contended for, then no merger of No. 7056 in No. 10415 took place and No. 7056 is now a valid and subsisting permit, by reason of performance of one-fifth of work thereunder within the required time and an extension of time by the State Engineer within which to complete the work. (Pool v. Utah etc. Co., 36 Utah 508, 105 P. 289; 29 Cyc. 1433, sec. 3; United States v. Ju Toy, 198 U.S. 253, 25 S.Ct. 644, 49 L.Ed. 1040.)

T. BAILEY LEE, District Judge. Budge and William A. Lee, JJ., concur. MCCARTHY, C. J., Justice Wm. E. Lee, Dissenting in Part.

OPINION

T. BAILEY LEE, District Judge.

On January 28, 1911, George L. Buck secured from the State Engineer Permit No. 7056 awarding him the right to appropriate 750 cubic feet per second of the waters of Clear Lake, in Lincoln county, for power purposes. One-fifth of the actual construction work was to be completed by July 28, 1913, and the whole by January 28, 1916. Thereafter by a series of conveyances title to this permit together with the works being constructed thereunder, and certain lands incident thereto became vested in the Clear Lake Power & Improvement Company. On July 8, 1914, the respondent, William C. Hazzard, acquired from the State Engineer original Permit No. 10415 covering 1,000 cubic feet per second of the same waters for similar purposes, conditioned that one-fifth of the work be done by January 8, 1917, and the whole by July 8, 1919, the estimated cost of construction being $ 20,000. The diversion points under each permit were identical. On September 15, 1916, at a sheriff's sale in pursuance of an execution subsequent to judgment secured by the said Hazzard against the said Power and Improvement Company, Hazzard bought Permit No. 7056, together with the lands and works before mentioned, and received the usual certificate of sale therefor. He immediately applied the works purchased upon his Permit No. 10415, and on May 9, 1917, following, made application to the State Engineer for extension of time to complete the work under the respective permits, alleging that litigation over the property and water involved had prevented him from complying with the terms imposed. Extensions were granted in each instance, Later, the plaintiff who in October and December, 1917, had secured State Engineer's Permits Nos. 13362 and 13363, each entitling her to appropriate 750 cubic feet per second of the same waters for power and other purposes, instituted a contest before the State Engineer to cancel Permits Nos. 7056 and 10415 for the reason that respondent, Hazzard, had failed to comply with the law and the conditions and provisions of such permits. Cancelation was denied, and plaintiff on March 21, 1919, filed her suit in the district court of Gooding county, formerly Lincoln county, to cancel such permits, to enjoin respondents from interfering with her rights under Permits Nos. 13362 and 13363 and to have her rights to the waters involved declared prior and superior to those claimed under permits 7056 and 10415. She alleged that both permits had been initiated in trespass; that the estimated cost of construction in each was too low, and that the requisite works could not be built for less than $ 110,000; that under neither had one-fifth of the work been done within the time prescribed; that permit 7056 had been abandoned for failure to complete the entire work within the period given; that it had been originally secured by fraud perpetrated on the State Engineer through spurious maps and representations, and finally that the extensions of time granted by the engineer had likewise been secured through false and fraudulent representations, and were wholly void in that they had been made after default upon the part of Hazzard.

The district court made its findings against each of plaintiff's contentions, and entered its decree upholding both permits awarding respondent Hazzard prior rights of appropriation thereunder, and enjoining plaintiff from interfering with them. Plaintiff has appealed and assigned numerous errors, many of which it will be unnecessary to discuss.

The charge that the work to be done and completed under Permit...