The Village of Fairview v. Franklin Maple Creek Pioneer Irrigation Company

• Decision Date: 13 May 1938
• Docket Number: 6538
• Parties: THE VILLAGE OF FAIRVIEW, a Municipal Corporation, Appellant, v. FRANKLIN MAPLE CREEK PIONEER IRRIGATION COMPANY, a Corporation, et al., Respondents
• Court: Idaho Supreme Court

79 P.2d 531

59 Idaho 7

THE VILLAGE OF FAIRVIEW, a Municipal Corporation, Appellant, v. FRANKLIN MAPLE CREEK PIONEER IRRIGATION COMPANY, a Corporation, et al., Respondents

No. 6538

Supreme Court of Idaho

May 13, 1938

WATER AND WATER COURSES-USE OF WATER-RES JUDICATA-ACQUISITION OF PRESCRIPTIVE RIGHT - PRESUMPTION OF KNOWLEDGE - BURDEN OF PROOF.

1. A decree adjudicating rights to waters of creek and awarding plaintiff's predecessor in interest 2.5 cubic feet thereof was res judicata of use of waters of springs tributary to and augmenting flow of creek, notwithstanding that springs were not specifically mentioned in decree.

2. The open, visible, and notorious use of water, as distinguished from a secret use, raises a rebuttable presumption that owner of water rights had knowledge of such use, as respects user's acquisition of prescriptive right to water.

3. The presumption that owner of water rights had knowledge of open visible, and notorious use of water can be overcome by positive evidence of lack of knowledge, as respects user's acquisition of prescriptive right to water.

4. A finding as to whether owner of water rights had knowledge of open, visible, and notorious use of water, the extent of such knowledge, and what the claim of the user was, is controlling where evidence is such that reasonable minds might differ as to whether the use shown was adverse, under claim of hostile right, or with permission.

5. A claimant asserting a prescriptive right to water must prove all the elements of prescription.

6. A use of water establishing a prescriptive right thereto must be accompanied with a claim adverse to and inconsistent with the adversary's rights and use of the waters.

7. A village adversely using water belonging to defendants did not thereby acquire a prescriptive right to use water, where defendants had no knowledge of village's adverse use of water.

APPEAL from the District Court of the Fifth Judicial District, for Franklin County. Hon. Jay L. Downing, Judge.

Action to quiet title to certain waters and to change the point of diversion thereof. Judgment for defendants. Affirmed.

Judgment affirmed. Costs to respondents.

Arthur W. Hart and Merrill & Merrill, for Appellant.

When a judgment which is contended to be res adjudicata is silent on the fact claimed to have been adjudged or is ambiguous evidence given at the trial in which the judgment was rendered is admissible. (34 C. J. 1074; Newton Mfg. Co v. Wilgus, 90 F. 483; Graves v. Hebbron, 125 Cal. 400, 58 P. 12; Roseberry v. Clark, 23 Cal.App. 549, 138 P. 923.)

Where open and notorious use of property under claim of right has continued for the full statutory period, title by prescription is presumed. (Taylor v. O'Connell, 50 Idaho 259, 295 P. 247; 19 C. J. 959; Cramer v. Walker, 23 Idaho 495, 130 P. 1002; Gardner v. Wright, 49 Ore. 609, 91 P. 286.)

All of the elements of adverse use are present in the case at bar. The payment of taxes usually required by statute does not affect this right because the water rights are either exempt from taxation or covered by the taxation of the land. (Sec. 61-105, I. C. A., subd. 10; Swank v. Sweetwater Irr. etc. Co., 15 Idaho 353, 98 P. 297; Spokane Valley L. & W. Co. v. Kootenai Co., 199 F. 481.)

P. J. Evans, for Respondents.

Rights of prior appropriator. "The prior appropriator gains not only the right to the use and natural flow of the waters of a main stream or water course from which the appropriation is made, but in so far as they may be necessary to afford him the amount to which he is entitled, he has a right to the use and natural flow of the waters of all tributary streams, and all other sources of supply for the main stream, such as seepage or waste waters which naturally make their way back to the stream after use by another appropriator, other percolating or seepage waters coming from underground sources, rains, snows, lakes, ponds or springs." (See 67 C. J. 1006, No. 436c; U. C. Life Ins. Co. v. Albrethsen, Idaho, 50 Idaho 196, 294 P. 842; Nevins et al. v. Smith, 86 Colo. 178, 279 P. 44; Malad Val. Irr. Co. v. Campbell, 2 Idaho 411, 18 P. 52.)

Adverse possession. "The use of water must have been under a claim of right, and hostile and adverse in character to the interests of others, so as to exclude them from a use of their rights." (67 C. J. 949.)

"In order to establish the right (by adverse user) the use and enjoyment must have been with the knowledge of those whose rights have been claimed to have been impaired." (67 C. J. 949.)

"Where there is no showing or proof that actual occupation was accompanied by a claim or intention, inconsistent with the title of the owner, an adverse claim based upon such occupation, cannot be allowed." (Bower v. Kollmeyer, 31 Idaho 712, 175 P. 964.)

"One cannot acquire title to a water right by adverse possession by using water from a stream without diminishing the supply of the owner of the right, where there is no evidence of any intention or claim inconsistent with the title of the owner." (Koon v. Empey, 40 Idaho 6, 231 P. 1098.)

GIVENS, J. Morgan and Ailshie, JJ., concur. Budge, J., did not participate.

OPINION

GIVENS, J.

The Village of Fairview, situated in Franklin county, with a population of about four hundred fifty people, owns its own water system, which, as to the amount of water, is inadequate, and to remedy this situation in 1932 purchased a tract of land about nine miles northeast with all appurtenant water rights from Levi Oliverson, who through mesne conveyances deraigned title from John C. Whitehead. Upon this land there arises a small spring of water referred to as the "Whitehead Spring." A short distance to the north of this spring, and upon the lands owned by the defendant, Charles Baker, arises another small spring referred to as the "Baker Spring."

On October 16, 1905, a decree adjudicating the rights to the waters of Maple Creek was entered in the District Court of the Fifth Judicial District of the State of Idaho, in and for Oneida county (which then included the territory now embraced in Franklin county), wherein J. J. Flack was plaintiff and Franklin Maple Creek Pioneer Irrigation Company was defendant and there were various interveners, including John C. Whitehead, who was awarded 2.5 cubic feet per second of time, with a priority of 1885. There is no specific reference in said decree, pleadings or proof as to the waters of the two springs above mentioned.

In the case at bar respondents contend said decree was res judicata of the use of the waters of these particular springs, while appellant contends the use of said springs was not involved in the Flack litigation, and even though impliedly therein adjudicated, that appellant and its predecessors in interest during all said period, both before and after the entry of said decree, have constantly, uninterruptedly and openly claimed and used the waters of said springs for domestic and irrigation purposes adversely to all the world and without claim therefor on the part of respondents or any of them.

So far as the litigation herein is concerned the above mentioned J. C. Whitehead is the predecessor in interest of appellant and the only past decreed rights it claims it is entitled to are by reason of the 1905 decree to him. The decreed priorities of respondents are superior in point of time to appellant's. By the amended complaint appellant asks to quiet title to the flow of the springs involved in addition to the 2.5 cubic feet awarded its predecessor in interest. John C. Whitehead in the 1905 decree, and to change the point of diversion and use thereof.

Respondents' assertion of res judicata is correct because the 1905 decree was exclusive and conclusive as to the waters of Maple Creek and its tributaries, it reciting:

"It is further ordered, adjudged and decreed that the said plaintiff, the said defendant, and each and every of the interveners, their agents, servants, or employees and successors in interest, be and they and each of them are hereby perpetually enjoined and restrained from in any manner interfering with the free flow of said waters of Maple Creek, and its several tributaries, except as herein adjudged and decreed to the said respective parties, and in the order of their several priorities."

True, these springs were not mentioned in the 1905 suit, but the subject matter of that litigation was the waters of Maple Creek and these springs then were and now are, clearly, unless interfered with, tributary to and augment the flow of Maple Creek; hence, appellant's predecessor in interest should have claimed all the water in the creek he was entitled to, and the 1905 decree declares 2.5 cubic feet is all Whitehead was entitled to, which concededly does not cover the flow of these springs which is now claimed in addition to the 2.5 cubic feet awarded in said previous decree.

Whatever water in Maple Creek or its tributaries was claimed by appellant or its predecessors in interest, in the previous case could and should have been litigated, therefore they will now be held to have been litigated, hence the 2.5 cubic feet awarded as of 1885 is all the decreed water appellant has as derived from Whitehead. (Joyce v. Murphy Land etc. Co., 35 Idaho 549, 208 P. 241; South Boise Water Co. v. McDonald, 50 Idaho 409, 296 P. 591; Marshall v. Underwood, 38 Idaho 464, 221 P. 1105.)

The trial court herein found with regards to the claim of prescription:

"That plaintiff and its predecessors in interest have used the said 2.5 cubic feet per second of the waters of said Maple Creek above described, continuously, uninterruptedly, openly notoriously and in hostility to defendants and all the world, and with claim of right thereto, under the said previous...