Tomchak v. Harris, 6099

• Decision Date: 18 May 1934
• Docket Number: 6099
• Citation: 32 P.2d 1025,54 Idaho 448
• Parties: A. F. TOMCHAK and MRS. A. F. TOMCHAK, His Wife, Appellants, v. ALBERT I. HARRIS, C. B. ROSCOE, JOHN P. WOODRUFF, FRED VYSTERCIL, DON UNDERWOOD, GEORGE HART, WILLIAM HARRIS, GEORGE BELNAP, and D. E. JONES, Respondents, and H. A. CASTLE, INVESTORS' FINANCE COMPANY, a Corporation, MRS. A. G. GUERNSEY, UNION CENTRAL LIFE INSURANCE COMPANY, R. E. SULLIVAN, CITIZENS' BANK, a Corporation, and PACIFIC COAST JOINT STOCK LAND BANK, a Corporation, Intervenors
• Court: Idaho Supreme Court

32 P.2d 1025

54 Idaho 448

A. F. TOMCHAK and MRS. A. F. TOMCHAK, His Wife, Appellants, v. ALBERT I. HARRIS, C. B. ROSCOE, JOHN P. WOODRUFF, FRED VYSTERCIL, DON UNDERWOOD, GEORGE HART, WILLIAM HARRIS, GEORGE BELNAP, and D. E. JONES, Respondents, and H. A. CASTLE, INVESTORS' FINANCE COMPANY, a Corporation, MRS. A. G. GUERNSEY, UNION CENTRAL LIFE INSURANCE COMPANY, R. E. SULLIVAN, CITIZENS' BANK, a Corporation, and PACIFIC COAST JOINT STOCK LAND BANK, a Corporation, Intervenors

No. 6099

Supreme Court of Idaho

May 18, 1934

WATER AND WATERCOURSES-DITCH RIGHTS-EASEMENTS-RIGHTS OF SERVIENT TENEMENT.

1. Owner of land subject to easement in ditch could, with proper measuring devices, carry his water therein, if he could use ditch as constructed without injuring or interfering with use of ditch by owners of easement, or if ditch could be enlarged or changed at his own expense without increasing burden of maintenance or changing method of use of owners of easement.

2. In action to quiet title, judgment finding that defendants had prescriptive easement in ditch on plaintiffs' land held insufficient, where it did not determine whether ditch was or could be made capable of carrying plaintiffs' water without interference with defendants' rights.

3. Owner of land subject to easement in ditch has burden of proving that ditch is or could be made capable of carrying his water without interference with rights of owners of easement.

APPEAL from the District Court of the Ninth Judicial District, for Jefferson County. Hon. C. J. Taylor, Presiding Judge.

Action to quiet title for use of ditch; judgment for plaintiff. Modified and remanded for further action.

Judgment modified and cause remanded. Costs awarded to appellants.

J. H Andersen and O. A. Johanneson, for Appellants.

The use of a ditch on the right of way for the same acquired by prescription over the land of another may be made by the land owner, the prescriptive right of the owner of the right of way being limited to his use, measured by the quantity of water carried through the ditch by him, and should the ditch have a further capacity, it may be used by such owner. (2 Kinney on Irrigation, p. 1749; Smith v. Hampshire, 4 Cal.App. 8, 87 P. 224; Abbott v. Pond, 142 Cal. 393 76 P. 60, 61; Bashore v. Mooney, 4 Cal.App. 276, 87 P. 553.)

A. A Merrill and Bash L. Bennett, for Respondents.

The owner of property subject to an easement may use his property in any manner and for any purpose not inconsistent with full and free enjoyment of the easement. (Colegrove Water Co. v. City of Hollywood, 151 Cal. 425, 90 P. 1053, 13 L. R. A. , N. S., 904; Hoyt v. Hart, 149 Cal. 722, 87 P. 569.)

GIVENS, J. Budge, C. J., Morgan and Wernette, JJ., and Terrell, D. J., concur.

OPINION

GIVENS, J.

Appellants are the owners of certain real property through which extends what is designated as the Pyke & Roscoe irrigation ditch or canal.

This action was instituted in 1932 by appellants to quiet title to a claimed prescriptive use in said ditch for carrying 160 inches of water, alleging that respondents had no right, title or interest in or to the ditch.

Respondents by answer and cross-complaint denied appellants' rights and claimed an adverse prescriptive easement over appellants' lands and exclusive ownership in the ditch in question alleging certain acts of interference by appellants in their use of the ditch and asking claimed resultant damages.

There is a sharp conflict in the evidence as to whether prior to 1929 appellants had carried their water or any part thereof through the ditch in question. There is no dispute however that in 1929 appellants sought to use water directly from the ditch in question, placing therein a check or checks so the water would flow out of the cuts made in the bank.

Respondents resisted such use and the present action ensued. The court awarded no damages, and found, correctly, that respondents had a prescriptive easement over appellants' lands; and resolved the conflicting evidence as to appellants' claimed prescriptive use of the ditch in question against appellants, entering its decree relative thereto as follows:

"That the plaintiffs, A. F. Tomchak and Mrs. A. F. Tomchak, his wife, nor either of them, have any valid right to use, and are hereby denied the right to use, said Pyke & Roscoe Ditch, or any part or portion thereof for carrying water for irrigation purposes.

That the plaintiffs, and each and all of them, and all persons claiming by, through or under them, or any or either of them, and they and each and all of them, are hereby forever enjoined and debarred from asserting or claiming any right to said Pyke & Roscoe Ditch, for transporting water for irrigation purposes, adverse to the defendants, and intervenors herein, and others not a party to this action."

The determination that appellants had no prescriptive right as such to use the ditch did not however dispose of all their...