Thompson v. McKinney

• Decision Date: 04 January 1937
• Docket Number: 5784
• Citation: 91 Utah 89,63 P.2d 1056
• Court: Utah Supreme Court
• Parties: THOMPSON et al. v. McKINNEY et al

63 P.2d 1056

91 Utah 89

THOMPSON et al. v. McKINNEY et al

No. 5784

Supreme Court of Utah

January 4, 1937

Rehearing Denied March 6, 1937.

Appeal from District Court, Third District, Utah County; Abe W Turner, Judge.

Suit by Frank Thompson and another, as administrator and administratrix of the estate of Serena E. McKinney, deceased against Rhoda J. McKinney and others. From an adverse decree defendants appeal.

AFFIRMED.

M. E. Wilson, Henry D. Moyle, E. A. Walton, and Robert C. Wilson, all of Salt Lake City, for appellants.

D. N. Straup and Clawson & Elsmore, all of Salt Lake City, for respondents.

FOLLAND, Justice. ELIAS HANSEN, C. J., and EPHRAIM HANSON, MOFFAT, and WOLFE, JJ., concur.

OPINION

FOLLAND, Justice.

Plaintiffs brought suit to quiet title to certain ranch lands and water rights claimed to be appurtenant thereto. No question arises as to plaintiffs' ownership of the land. That is conceded. The dispute has to do with the water rights. The ultimate question is whether on mortgage of the land certain water rights owned by the mortgagor passed by the mortgage and foreclosure thereof when there was no express mention of water or water rights either by way of conveyance or reservation.

John L. McKinney and Rhoda J. McKinney, his wife, gave a mortgage dated July 31, 1920, to Serena E. McKinney on 1,280 acres of land located in the vicinity of Fairfield, Cedar Valley, Utah county, Utah, to secure payment of a note for $ 14,000. Serena E. McKinney was the mother of John L. McKinney. It is alleged in the complaint, and admitted by answer, that on the date of the mortgage, McKinney was the owner of one-sixth of the summer flow and two-thirds of the winter flow of a certain spring known as Fairfield Spring. John L. McKinney, mortgagor, and Serena E. McKinney, mortgagee, are now deceased. The mortgage was foreclosed after the death of the parties and the land was purchased at foreclosure sale by the then executor of the estate of Serena E. McKinney, and later by it conveyed to the present administrator and administratrix of said estate, who are the parties plaintiff herein. The individual defendants are the widow and children of John L. McKinney, his heirs, who succeeded to whatever right, title, or interest he may have had in and to the waters in dispute. The corporate defendant was organized by the individual defendants and its stock is owned beneficially by them. They conveyed to the corporation all their interest in and to the waters of the Fairfield Spring. Whatever right or interest to these waters would be in John L. McKinney if he were now alive, are now vested in the corporation defendant. If the water rights passed to plaintiffs by reason of the mortgage, its foreclosure, and the purchase of the property by them, then the water rights were properly decreed to them by the trial court. On the other hand, if such water rights did not so pass, but remained in John L. McKinney, the mortgagor, then the judgment should be reversed and title to such waters decreed to the McKinney Land & Livestock Company.

The mortgage was the short form prescribed by statute, which, without express words "shall have the effect of a conveyance of the land therein described, together with all the rights, privileges and appurtenances thereunto belonging." R. S. Utah 1933, 78-1-13. The statute provides, section 100-1-10, R. S. 1933, that

"Water rights shall be transferred by deed in substantially the same manner as real estate, except when they are represented by shares of stock in a corporation."

Section 100-1-11 provides:

"A right to the use of water appurtenant to land shall pass to the grantee of such land, and, in cases where such right has been exercised in irrigating different parcels of land at different times, such right shall pass to the grantee of any parcel of land on which such right was exercised next preceding the time of the execution of any conveyance thereof; * * * provided, that any such right to the use of water, or any part thereof, may be reserved by the grantor in any such conveyance by making such reservation in express terms in such conveyance, or it may be separately conveyed."

This provision is substantially the same as section 3477, Comp. Laws Utah 1917, which was in effect at the time of making the mortgage. The pertinent question, therefore, is whether the waters were appurtenant to the land at the time the mortgage was given, and if so, whether the water rights passed with the land by the mortgage.

It is well settled in this jurisdiction that a deed in statutory form, without reservation of water, conveys whatever rights the grantor has to the water appurtenant to the land. Black v. Johanson, 81 Utah 410, 18 P.2d 901; Anderson v. Hamson, 50 Utah 151, 167 P. 254; 2 Kinney on Irr. and Water Rights (2d Ed.) § 1011, p. 1804, and § 1009, p. 1796; 67 C. J. 1099. The same is true on the making of a mortgage in statutory form. Section 78-1-13. The effect would be the same as in a deed; that is, a mortgage in statutory form without reservation of the water is a "conveyance of the land, together with all the rights, privileges and appurtenances thereunto belonging."

The facts with respect to the use of the summer water and of the winter water are somewhat different, so we shall discuss each separately. The summer water is referred to as 12 shares. This merely means that McKinney was the owner of 12 out of 72 or 73 shares which represented all the interests in the entire spring. There was no corporation or other organization by which shares of stock were issued. There is no question in this case respecting water rights represented by shares of stock in a corporation. We do not attempt to determine whether water represented by shares of stock in a corporation may or may not, under the situation disclosed by the evidence in this case, pass as appurtenant to the land.

The trial court found with respect to the summer water that on July 31, 1920, the date of the mortgage, John L. McKinney was the owner and entitled to the use of 12 shares of the water from Fairfield Spring and creek during the irrigation season, and that for more than five years prior and subsequent thereto, and until his death in 1923, during each and every irrigation season he used all such water for irrigation purposes by means of dams and diverting ditches on about 125 acres of cultivated portions of the ranch lands mortgaged to Serena E. McKinney, and that by such use he raised valuable crops consisting of hay, grain, beets, and potatoes, and that such waters were used exclusively on the cultivated portions of said ranch; that since the death of John L. McKinney his successors in interest have used all such waters for irrigation purposes on lands of the ranch, and that the use of such waters is and was necessary to raise crops, and without the use of such waters no crops could have successfully been raised or produced. We have examined the record and believe the above findings abundantly supported by evidence. There seems to be no conflict except that the witnesses for defendants minimize the amount of acreage irrigated by the 12 shares of water, and defendants contend that such amount of water could not adequately irrigate to exceed about 65 acres of land. That the water was used to irrigate 65 to 82 acres of land is shown by the testimony of defendants' witnesses. There is evidence tending to show some rotation in the use of water on the land irrigated so that all of the 125 acres of cultivated land were not planted to crops and irrigated each and every season, but that from 65 to 90 acres of the 125 were irrigated every season. A point is attempted to be made that the water could not be appurtenant to the 1,280 acres of ranch land, since only 65 to 90 acres could be irrigated in any one season. We think there is not anything to this suggestion, because the acreage on which the water had been used is a part of the 1,280 acres. The water was not attempted to be used indiscriminately over the whole 1,280 acres, but on a certain and definite portion thereof not exceeding 125 acres. Unless found to be not appurtenant for some other reason, it would follow that the water was appurtenant to at least the land on which it was last used. Appellants urge that the water was intended to be and was kept separate from ownership in the land and was held as a "right in gross" as the property of John L. McKinney because of the manner in which it had been treated in various conveyances and mortgages prior to the giving of the mortgage to Serena E. McKinney. That is, in other deeds and mortgages the water is expressly mentioned, but in the Serena E. McKinney mortgage it is not mentioned, and this after payment by John L. McKinney of $ 3,000 on the indebtedness to his father, reducing his obligation from $ 17,000 to $ 14,000. It was shown that John L. McKinney obtained six shares of the water in 1913 by conveyance from his father wherein the water was expressly mentioned and conveyed in connection with 560 acres of land. Defendants offered to prove the conveyance of other six shares by deed expressly mentioning the water wherein other lands were conveyed to McKinney by a person other than his father. This evidence was excluded by the court. With respect to the mortgages given by John L. McKinney, the court found as follows:

"Over and subject to the objection of counsel for plaintiffs the defendants were permitted, for certain purposes, to put in evidence an abstract of title of the said lands of the John L....