Tomchak v. Harris, 6099
| Court | United States State Supreme Court of Idaho |
| Writing for the Court | GIVENS, J. |
| 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 |
| Docket Number | 6099 |
| Decision Date | 18 May 1934 |
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...
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Latham v. Garner, 13435
...Irr. Dist. v. Sproat, 69 Idaho 315, 206 P.2d 774 (1949); Hackendorn v. Mahan, 24 Del.Ch. 228, 8 A.2d 794 (1939); Tomchak v. Harris, 54 Idaho 448, 32 P.2d 1025 (1934); Jakobson v. Chestnut Hill Properties, Inc., 106 Misc.2d 918, 436 N.Y.S.2d 806 (Sup.Ct.1981); Titeca v. State Department of F......
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Savage Lateral Ditch Water Users Ass'n v. Pulley, 19616
...at E without impeding the flow thereof, and without injury either to the defendants Moon or the defendants Wells. Tomchak v. Harris, 54 Idaho 448, 32 P.2d 1025. (Emphasis Simonson, 72 Idaho at 45-46, 237 P.2d at 97. The burden thus rested with appellants to Page 560 [125 Idaho 243] prove th......
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Reynolds Irr. Dist. v. Sproat, 7384
...that ditch is or could be made capable of carrying his water without interference with rights of owners of easement. Tomchak v. Harris, 54 Idaho 448, 32 P.2d 1025. The rights of the owner of the easement are paramount to the extent of the grant, to those of the owner of the soil, and the la......
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Cusic v. Givens, 7522
...choose, so long as such use does not infringe the easement. West Coast Power Co. v. Buttram, 54 Idaho 318, 31 P.2d 687; Tomchak v. Harris, 54 Idaho 448, 32 P.2d 1025; Coulsen v. Aberdeen-Springfield Canal Co., 47 Idaho 619, 277 P. 542; Reynolds Irrigation Dist. v. Sproat, 69 Idaho 315, 206 ......
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Latham v. Garner, No. 13435
...Irr. Dist. v. Sproat, 69 Idaho 315, 206 P.2d 774 (1949); Hackendorn v. Mahan, 24 Del.Ch. 228, 8 A.2d 794 (1939); Tomchak v. Harris, 54 Idaho 448, 32 P.2d 1025 (1934); Jakobson v. Chestnut Hill Properties, Inc., 106 Misc.2d 918, 436 N.Y.S.2d 806 (Sup.Ct.1981); Titeca v. State Department of F......
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Savage Lateral Ditch Water Users Ass'n v. Pulley, No. 19616
...at E without impeding the flow thereof, and without injury either to the defendants Moon or the defendants Wells. Tomchak v. Harris, 54 Idaho 448, 32 P.2d 1025. (Emphasis Simonson, 72 Idaho at 45-46, 237 P.2d at 97. The burden thus rested with appellants to Page 560 [125 Idaho 243] prove th......
-
Reynolds Irr. Dist. v. Sproat, 7384
...that ditch is or could be made capable of carrying his water without interference with rights of owners of easement. Tomchak v. Harris, 54 Idaho 448, 32 P.2d 1025. The rights of the owner of the easement are paramount to the extent of the grant, to those of the owner of the soil, and the la......
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Cusic v. Givens, No. 7522
...choose, so long as such use does not infringe the easement. West Coast Power Co. v. Buttram, 54 Idaho 318, 31 P.2d 687; Tomchak v. Harris, 54 Idaho 448, 32 P.2d 1025; Coulsen v. Aberdeen-Springfield Canal Co., 47 Idaho 619, 277 P. 542; Reynolds Irrigation Dist. v. Sproat, 69 Idaho 315, 206 ......