Welch v. Garrett

• Decision Date: 18 December 1897
• Citation: 5 Idaho 639,51 P. 405
• Parties: WELCH v. GARRETT
• Court: Idaho Supreme Court

51 P. 405

5 Idaho 639

WELCH v. GARRETT

Supreme Court of Idaho

December 18, 1897

DITCH ON PUBLIC LANDS IS HELD BY GRANT-NONUSER-ABANDONMENT.-A ditch constructed for mining purposes on unoccupied public lands of the United States is held by grant, and the owner of such ditch does not forfeit his right thereto merely by nonuser. Nonuser of a ditch brought about by circumstances over which the ditch owner has no control is not evidence of abandonment, or intention to abandon such ditch.

(Syllabus by the court.)

APPEAL from District Court, Bingham County.

Affirmed, with costs to the respondent.

E. E Chalmers, for Appellant.

Evidence of abandonment and forfeiture is admissible under the general issue, and these need not be specially pleaded. (Bell v Brown, 22 Cal. 671; 5 Morr. Min. Rep. 240.) This ditch was not constructed and consequently not used until 1879 some thirteen years subsequent to the passage of the mining act of Congress of July 26, 1866, United States Revised Statutes, sections 2339 and 2340, and hence cases are not in point which hold that said act operated as a grant of right of way for such ditches used prior to the date of its passage. Sections 2339 and 2340 of the United States Revised Statutes do not confer absolutely upon those owning the right of way for ditches over land situated like this, but such right is subject in its enjoyment to the local customs, laws and decisions as much as the right to the use of the water itself. (Jennison v. Kirk, 98 U.S. 453; 4 Morr. Min. Rep. 504.) Such local customs are not judically noticed, but must be alleged and proved by the party relying thereon. (Gould on Waters, sec. 240, p. 469; Smith v. Hawkins, 110 Cal. 122, 42 P. 453.)

F. S. Dietrich, for Respondent.

We maintain that the right of way acquired as this was is a right received by grant; that is, such a right is granted to all upon compliance with certain conditions, and with these conditions plaintiff and his predecessors complied. (Smith v. Hawkins, 110 Cal. 122, 42 P. 453.) That even though the right were acquired by prescription or in any other manner mere nonuser does not forfeit. (Washburn on Easements, p. 720, par. 5 et seq.) That it never applies when the period of such nonuser is less than the statutory period of limitation, and is open to explanation and to be controlled by evidence that the owner of the easement did not intend to abandon it while omitting to use it. (Wimer v. Simmons, 27 Or. 1, 50 Am. St. Rep. 685, 39 P. 6 (nonuser for fourteen years); Utt v. Frey, 106 Cal. 392, 39 P. 807; Beaver Brook etc. Co. v. St. Vrain Res. Co., 6 Colo. App. 130, 40 P. 1066; Gassert v. Noyes, 18 Mont. 216, 44 P. 959; Smith v. Hope Min. Co., 18 Mont. 432, 45 P. 632; Moon v. Rollins, 36 Cal. 333, 95 Am. Dec. 181.)

QUARLES, J. Sullivan, C. J., and Huston, J., concur.

OPINION

QUARLES, J.

--The plaintiff brought this suit to obtain a perpetual injunction to restrain the defendant from interfering with the use and enjoyment of a certain ditch, known as the "Miners' Ditch," by the plaintiff, and for damages, and a judgment decreeing the plaintiff to be the sole and absolute owner of said ditch. The case was tried by the court without the intervention of a jury, the facts found in favor of plaintiff, and judgment made and entered accordingly. The defendant moved for a new trial, which was denied him, whereupon he appealed from the order denying him a new trial, and also from the judgment.

The appellant assigns several errors, the principal one being that the evidence is sufficient to justify the verdict. This contention is based principally upon the ground that the evidence shows an abandonment of that part of said ditch that is situated upon the lands of the defendant. A careful study of the evidence shows, we think, that it established the following facts: The ditch in question was constructed by the predecessors in interest of the plaintiff in 1879, and while the lands of the plaintiff were unoccupied public lands of the United States; that the defendant has since settled upon entered, and acquired patent, to said lands; that said ditch was constructed at great expense; that in 1887, 1888, and 1889, the plaintiff expended upon said ditch as much as $ 500; that this ditch conveys water from the Blackfoot river to mining ground owned by the defendant; that from 1889 to 1891, inclusive, the waters of Blackfoot river were involved in litigation, and the court appointed a water master, who shut the water off from the ditch in question, and refused to permit the water to be used by plaintiff during said litigation. In 1893 the plaintiff partly cleaned...