Wagoner v. Jeffery
| Decision Date | 02 October 1945 |
| Docket Number | 7242 |
| Citation | 162 P.2d 400,66 Idaho 455 |
| Parties | THOMAS A. WAGONER, Plaintiff-Respondent, v. PERCY V. JEFFERY and ELSIE JEFFERY, his wife, Defendants-Appellants |
| Court | Idaho Supreme Court |
1. Abandonment
Forfeiture
Abandonment and forfeitures are not favored.
2. Waters and water courses
Even though the right of way for an irrigation ditch granted to plaintiff was abandoned for five year period, if subsequent to such period plaintiff again took possession of the right of way under a claim of right and continuity of interest prior to the initiation of any right therein or claim thereto by defendants, there would be no abandonment which could inure to the benefit of defendants.
3. Abandonment
Abandonment of any right is dependent upon an intention to abandon and must be evidenced by a clear, unequivocal and decisive act of the party.
4. Waters and water courses
The owner of a ditch on public lands of the United States does not forfeit the same merely by nonuser.
5. Public lands
Grant of a right of way over public lands is one in praesenti subject to forfeiture for subsequent default, and such default does not operate ipso facto to divest grantee of the title, but to be effectual, the default must be followed with a declaration of forfeiture by an Act of Congress or in an appropriate judicial proceeding.
6. Evidence
Where land is properly subject to the land department, and that department has acted in regard to it, it will be conclusively presumed that all the preliminary requirements have been properly complied with, and the records of the department are not admissible to show that such requirements have not been complied with.
7. Waters and water courses
Where plaintiff made application in 1927 for a right of way for irrigation canal over public lands, constructed the canal in 1930 installed pumps and pumped a substantial amount of water for about three weeks and applied it to beneficial use, right of way was granted in 1934 and in 1943 plaintiff again took possession of canal and right of way before same had been declared forfeited and before defendants took any action to interefere with plaintiff's right of way, there was no abandonment which could inure to the benefit of defendants.
8. Appeal and error
Where the evidence was such as to lead different minds to different conclusions upon issue whether plaintiff had abandoned right of way over public land for irrigation ditch and the evidence, although meager, was of a substantial nature and character, findings for plaintiff would not be disturbed.
9. Waters and water courses
Burden was upon defendant to prove alleged abandonment and forfeiture by plaintiff of right of way over public lands for irrigation ditch by clear, unequivocal, and decisive acts of plaintiff.
Appeal from the District Court of the Ninth Judicial District of the State of Idaho, in and for Jefferson County. Hon. C. J. Taylor, Judge.
Affirmed.
O. A. Johannesen for appellants.
When an appropriator ceases to apply water that he has appropriated to a beneficial use, and such failure continues for a period of five years, the water reverts again to the state. (Sec. 41-216, I.C.A., and acts amendatory; Chill v. Jarvis, 50 Ida. 531, 536, 298 P. 373; Sec. 41-104, I.C.A.)
The right to the use of water ceasing, the rights-of-way for ditches and the like, which are incidental to the primary right of use, also fall, and the servient tenement is released from the servitude. (Smith v. Hawkins (Cal.), 42 P. 453, 454; Crane Falls Power & Irr. Co. v. Snake River Irr. Co., 24 Ida. 77, 82, 86, 133 P. 655 (on rehearing); Hurst v. Idaho-Iowa Lateral etc. Co., 34 Ida. 342, 349, 202 P. 1068.)
Abandonment of a water right or a ditch right-of-way may be proved by evidence of non-use. The intent is usually shown by the conduct of the appropriator. It is a question of fact. (St. John Irr. Co. v. Danforth, 50 Ida. 513, 516; Hurst v. Idaho-Iowa Lateral Etc. Co., 34 Ida. 342, 348, 349, 202 P. 1068; Union Grain & E. Co. v. McCammon Ditch Co., 41 Ida. 216, 224, 240 P. 443; Stephenson v. San Diego Co., 155 P. 688, 694; Smith v. Hawkins (Cal.), 42 P. 453, 454 Sec. 41-104, I.C.A.; Crane Falls Etc. Co. v. Snake River Irr. Co., 24 Ida. 77, 82, 86.)
Ralph L. Albaugh and Errol H. Hillman for respondent.
The interruption of the use of the ditch does not work a forfeiture, and the rule of continuous and adverse user upon which the title to an easement may be acquired does not apply in this case. The respondent acquired the right of way, not by adverse use or by prescription, but by grant from the United States. The owner of such ditch does not forfeit his right thereto by mere non-user. (Welch v. Garrett, 5 Ida. 639 at p. 641; Ada County etc. Co., v. Farmers Canal Co., 5 Ida. 793 at pp. 799, 800.)
If, subsequent to five year period of abandonment, ditch owner again takes possession of ditch there would be no abandonment which could inure to the benefit of appellants. An abandonment is not complete until another relocates, so that a resumption of use may be made at any time before others intervene. And even though forfeited and abandoned for five year periods, if, subsequent to such five year period and prior to appellants' appropriation, respondent under claim of right and continuity of interest again takes possession there would be no abandonment which could inure to the benefit of appellants. (Wiel on Water Rights, 2d Ed., p. 353; Zezi v. Lightfoot, 57 Ida. 707 at p. 713; Horse Creek Conservation Dist. v. Lincoln Land Co., (Wyo.), 92 P.2d 572, at p. 577; Harold L. Ickes v. Virginia-Colorado Development Corp., 79 L. ed. 1627, at p. 1630, 295 U.S. 639; Carrington v. Crandall (Ida.), 147 P.2d 1009, at p. 1011.)
This suit is prosecuted by plaintiff and respondent Wagoner to quiet his alleged title to an easement or right to use a small strip of ground about 115 feet in width and 181 feet in length for what is called a "spur ditch" through which to conduct water from certain wells, drilled thereon, for irrigation purposes, and for injunctive relief. It appears from the record and the trial court found:
That respondent is the owner of a tract of 160 acres of arid land located in Jefferson County, Idaho; that in the summer of 1927 he went onto a forty acre tract of land located in that county, then a part of the public domain, and drilled six wells, approximately twenty feet apart, and located in a series or row; that said wells were drilled for the purpose of obtaining water with which to irrigate the said tract of land of the respondent; that each well was approximately seven inches in diameter and thirty feet in depth; that after drilling the wells respondent installed a pump and tested them and found water in sufficient quantity for irrigation purposes; that on the first day of December 1927, while the land upon which the said wells were drilled remained unappropriated public domain, respondent filed in the United States Land Office an application for a right of way for a canal, as well as a map, showing the approximate location of the wells and the center line of his proposed canal; that in the summer of 1930, respondent constructed a canal, which is plainly visible and marked out upon the premises, there being no other canal on said premises, the location and description of its center line being approximately as described on said map; that respondent thereupon pumped a substantial amount of water from said wells into said canal for approximately three weeks, and conveyed the water through the diversion works and applied it to a beneficial use; that the said canal was nine feet in width at the bottom and fifteen in width at the top and the wells hereinbefore referred to are situated in said canal; that neither said canal or said wells have been used by respondent for delivery of water since the aforesaid use in 1930; that on the 23rd of August, 1934, the Commissioner of the General Land Office of the United States, accepted and approved the above mentioned map, and accepted said wells, and granted and conveyed to respondent a right of way therefor,...
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...Court in several cases applied to resumption-of-use doctrine. Zezi v. Lightfoot, 57 Idaho 707, 68 P.2d 50 (1937); Wagoner v. Jeffery, 66 Idaho 455, 162 P.2d 400 (1945); In re Boyer, 73 Idaho 152, 248 P.2d 540 (1952). In 1969, the legislature substantially amended the statute providing for t......
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