Village of Hailey v. Riley

• Citation: 14 Idaho 481,95 P. 686
• Parties: VILLAGE OF HAILEY, a Municipal Corporation, Respondent, v. W. T. RILEY, Appellant
• Decision Date: 12 March 1908
• Court: United States State Supreme Court of Idaho

95 P. 686

14 Idaho 481

VILLAGE OF HAILEY, a Municipal Corporation, Respondent, v. W. T. RILEY, Appellant

Supreme Court of Idaho

March 12, 1908

FINDINGS-INSUFFICIENCY-DEDICATION.

1. Water applied to a desert entry for the purpose of reclaiming the same does not become inseparable therefrom, and may be conveyed separate and apart from a conveyance of the land.

2. The making and filing of a plat laying out a townsite upon a desert entry will not dedicate to the public the water used upon the streets and alleys of said townsite, under a water right subsequently located and acquired.

3. A finding that a desert entryman and his successors in interest intended that the occupants of a townsite should have the free use of water on the streets of such townsite is not sufficient to show a perpetual dedication of said water to a public use.

4. A finding "That the use of water on the streets of a townsite is necessary for a reasonable enjoyment of the streets and private rights, and public convenience and accommodation would be materially affected by an interruption of the use of the water on the streets of said townsite," is not sufficient to show an intention to dedicate, or the fact of dedication of such water perpetually to a public use.

5. Where the findings of fact show a long-continued use with the knowledge of the owner of water upon streets and alleys of a municipality, such findings are not inconsistent with a permissive use and a license to use the same, and do not show an intention to perpetually dedicate the same to a public use.

6. To constitute dedication by user, it is necessary to find the probative facts which of themselves constitute dedication, or the ultimate fact of dedication. It is not enough to find facts which merely have a tendency to prove dedication; the use found to exist must be inconsistent with a permissive use or a mere license.

7. In an action to quiet title to an easement in a ditch, and the right to use water flowing therein, where the answer interposes as a defense the statute of limitations under sections 4036 and 4037, Rev. Stat., it is incumbent upon the trial court to make a finding upon such defense, unless a finding thereon would not affect or control the judgment or call for a different judgment than authorized by the findings made.

8. Where the findings and conclusions of law do not support the judgment, the judgment will be reversed.

(Syllabus by the court.)

APPEAL from the District Court of the Fourth Judicial District for Blaine County, Idaho. Hon. Lyttleton Price, Judge.

An action to quiet title to an interest in a ditch, and the water carried through said ditch. Judgment for plaintiff. Reversed.

Reversed and remanded.

R. M Angel, and Richards & Haga, for Appellant.

Dedication should not be presumed without evidence of an unequivocal intention to dedicate. (Angell on Highways, sec. 147; 9 Am. &amp Eng. Ency. of Law, 36; Tiedeman on Mun. Corp., sec. 219; 2 Abbott on Mun. Corp., sec. 728.) There is no presumption in favor of dedication. (Warden v. Blakeley, 32 Wis 690; Quinn v. Anderson, 70 Cal. 454, 11 P. 746; Tate v. Sacramento, 50 Cal. 242; Hogue v. City of Albina, 20 Ore. 182, 25 P. 386, 10 L. R. A. 673; Lownsdale v. Portland, 15 F. Cas. No. 8579, Deady, 39; Commonwealth v. Coupe, 128 Mass. 63; Hartley v. Vermillion (Cal.), 70 P. 273.)

The mere permissive use of private property by the public is invariably held to be only a license. The presumption of law is that the user by the public was not adverse and hostile to the owner nor based upon a dedication wherein the owner intended to surrender, without consideration, his property for the use of the public, and such use, no matter how long continued, does not establish a dedication. (Davis v. Clinton, 58 Iowa 389, 10 N.W. 768; Mayberry v. Standish, 56 Me. 342; Jones v. Phillips, 59 Ark. 35, 26 S.W. 386; Hemingway v. Chicago, 60 Ill. 324; Wood v. Hurd, 34 N.J.L. 88; Daniels v. Almy, 18 R. I. 244, 27 A. 330; Tutwiler v. Kendall, 113 Ala. 664, 21 So. 332; Post v. Pearsall, 22 Wend. 425.)

An intention on the part of the owner to dedicate is absolutely essential, and it must be clearly and unequivocally shown. (State v. Adkins, 42 Kan. 203, 21 P. 1069; Tinges v. Mayor etc. of Baltimore, 51 Md. 609; Hogue v. City of Albina, 20 Ore. 182, 25 P. 386, 10 L. R. A. 673; Cal. Nav. etc. Co. v. Union etc. Co., 126 Cal. 433, 58 P. 936, 46 L. R. A. 825; City of Denver v. Jacobson, 17 Colo. 497, 30 P. 246; Guttery v. Glenn, 201 Ill. 275, 66 N.E. 305; Starr v. People, 17 Colo. 458, 30 P. 64; Culmer v. Salt Lake City, 27 Utah 252, 75 P. 620; Holdane v. Colo. Springs, 21 N.Y. 477; Bloomington v. Bloomington Cem. Assn., 126 Ill. 221, 18 N.E. 298; Chicago v. Johnson, 98 Ill. 618; Lownsdale v. Portland, F. Cas. No. 8579, Deady, 39.) The owner of a water right, whether by purchase or original appropriation, may dispose of it as he sees fit, either with or without the land on which it had formerly been used, the only limitation being that the water should always be applied to some beneficial use. (Hard v. Boise Irr. & Land Co., 9 Idaho 589, 76 P. 331, 65 L. R. A. 407; Johnson v. Little Horse Creek Irr. Co., 13 Wyo. 208, 110 Am. St. Rep. 986, 79 P. 22, 70 L. R. A. 341; Gould on Waters, sec. 234; Kenney on Irr., secs. 264, 265, and cases there cited; Long on Irrigation, sec. 79; 3 Farnham on Water and Water Rights, secs. 643, 679.)

McFadden & Brodhead, and Sullivan & Sullivan, for Respondent.

The use, with the assent of the owner, for such a length of time that the public accommodation and private rights may be materially affected by an interruption of the enjoyment, establishes a dedication. (City of Macon v. Franklin, 12 Ga. 239; City of Chicago v. Wright, 69 Ill. 318; State v. Wilson, 42 Me. 9; Parrish v. Stephens, 1 Ore. 59; Scranton v. Griffin, 8 Leg. Gaz. 86; Hughes v. Providence and W. R. Co., 2 R. I. 493; Whittaker v. Ferguson, 16 Utah 240, 51 P. 980; Saulet v. City of New Orleans, 10 La. Ann. 81; Abbott v. Mills, 3 Vt. 521, 23 Am. Dec. 222; State v. Catlin, 3 Vt. 530, 23 Am. Dec. 230; Watertown v. Cowen, 4 Paige, 510, 27 Am. Dec. 80; Case v. Favier, 12 Minn. 89; 4 Law of Real Property, sec. 126.)

Where anything has been set apart for public use, and enjoyed as such, and private and individual rights have been acquired with reference thereto, an estoppel in pais arises which precludes the owner from revoking such dedication. (Cincinnati v. White's Lessee, 31 U.S. (6 Pet.) 431, 8 L.Ed. 452; Haynes v. Thomas, 7 Ind. 38; Getchell v. Benedict, 57 Iowa 121, 10 N.W. 321; Sarpy v. Municipality No. 2, 9 La. Ann. 597, 61 Am. Dec. 221; Leonard's Heirs v. City of Baton Rouge, 38 La. Ann. 275; Cole v. Sprowl, 35 Me. 161, 56 Am. Dec. 696; Schettler v. Lynch, 23 Utah 305, 64 P. 955; Barclay v. Howell, 6 Pet. (U. S.) 498, 8 L.Ed. 477, Lewis v. Portland, 25 Ore. 133, 42 Am. St. Rep. 772, 35 P. 256, 22 L. R. A. 736; Ball v. Tacoma, 9 Wash. 592, 38 P. 133; Wolfskill v. Los Angeles Co., 86 Cal. 405, 24 P. 1094.)

If the use has been with the consent of the owner, for such a length of time that the public convenience will be materially affected by an interruption of that use, a dedication will be presumed. (9 Am. & Eng. Ency. of Law, 68; 13 Cyc. 482.)

The intent of the owner of the land is inferred from the fact that the user was with his knowledge and consent, and that had he not intended to make a dedication he would not have allowed the use; likewise, from general user by the public follows the inference of an acceptance by the public. (9 Am. & Eng. Ency. of Law, 66.)

By implication, the grant of property or of a right or easement carries with it whatever is incident to it, and necessary to its beneficial enjoyment. (Smith v. Cooley, 65 Cal. 46, 2 P. 880; Clark v. Duvall, 15 Cal. 86; Cave v. Crafts, 53 Cal. 135; Hodgson v. Field, 7 East, 613; Dand v. Kingscote, 6 Mees. & W. 175; Scheel v. Alhambra etc. Co., 79 F. 825; Lampman v. Milks, 21 N.Y. 505; Harris v. Elliott, 35 U.S. 25, 9 L.Ed. 333; 14 Cyc. 1166, and cases cited in note; 14 Cyc. 1201, and cases cited in note; Civ. Code, sec. 2407; Pol. Code, sec. 1141; 2 Farnham on Waters and Water Rights, 2444, 2445.)

When the dedication of the street was made and accepted by the public, there were on the street certain ditches, and in those ditches water was conveyed along the streets and used for irrigating the trees and for other street purposes. Whether the users were lot owners or not, the question arises whether this water as used is necessary to the beneficial enjoyment of the streets. This question can only be answered in the affirmative.

Counsel for appellant has cited a number of cases in support of his contention that a water right obtained for the irrigation of land may be sold separate therefrom, but it will be seen that in those cases the precise point involved here was not raised. In none of them does it appear that the land was acquired under the provisions of the desert land act.

STEWART, J. Ailshie, C. J., concurs.

OPINION

STEWART, J.

This is an appeal from the judgment. The record presented to this court consists of the judgment-roll and a statement of the case settled and allowed by the trial court.

The plaintiff alleges in the complaint that it is the owner and in possession of a public easement of an undivided one-ninth interest in a certain ditch, and has the right to convey in said ditch known as the Big Ditch, taking water from Wood river, in Blaine county, Idaho, 700 inches of water through said ditch and laterals; that it is the owner and in the possession of all ditches and laterals for the purpose of conveying water along, over and upon the lots, blocks streets and alleys of Hailey; that it is the owner of a public easement, and in the possession and entitled to...