Williams v. Neddo

• Decision Date: 29 June 1945
• Docket Number: 7196
• Citation: 66 Idaho 551,163 P.2d 306
• Parties: WILLIAM E. WILLIAMS and DELLA WILLIAMS, his wife; HARRY A. SHAW, JR., and MABEL SHAW, his wife, Respondents, v. ISAAC J. NEDDO III and EUNICE NEDDO, his wife; DEWARD JOHN and HOPE JOHN, his wife; and MELVIN M. WARD, as Watermaster of Raft River Water District No. 8-C in Cassia County, Appellants
• Court: Idaho Supreme Court

163 P.2d 306

66 Idaho 551

WILLIAM E. WILLIAMS and DELLA WILLIAMS, his wife; HARRY A. SHAW, JR., and MABEL SHAW, his wife, Respondents, v. ISAAC J. NEDDO III and EUNICE NEDDO, his wife; DEWARD JOHN and HOPE JOHN, his wife; and MELVIN M. WARD, as Watermaster of Raft River Water District No. 8-C in Cassia County, Appellants

No. 7196

Supreme Court of Idaho

June 29, 1945

On Rehearing November 14, 1945.

1. Action

In action by joint owners of irrigation ditch appurtenant to their lands to enjoin defendants from using ditch to convey water to their lands, interfering with plaintiff's use thereof, or diverting water therefrom, complaint was not demurrable for misjoinder of parties plaintiff or causes of action. (I.C.A., sec. 5-312.)

2. Pleading

Plaintiffs need not plead facts establishing their claim of title by adverse possession and prescription, but general averment of adverse possession is sufficient.

3. Waters and water courses

In action to enjoin use of ditch for irrigation purposes and interference with plaintiffs' use thereof, evidence established plaintiffs' ownership of ditch by adverse possession and prescription.

4. Waters and water courses

Ownership of irrigation ditch or right to use it may be established by adverse possession and prescription.

5. Evidence

In action to enjoin use of ditch for irrigation of defendants' lands and interference with plaintiffs' use thereof, a tracing from aerial photograph of ditch and parties' lands was admissible in evidence on plaintiffs' behalf.

On Rehearing November 14, 1945.

Appeal from the District Court of the Eleventh Judicial District of the State of Idaho, for Cassia County. Hon. James W. Porter Judge.

Affirmed.

Bissell and Bird for appellants.

The demurrer, and motion to dismiss on the ground that there is a misjoinder of parties plaintiff and misjoinder of causes of action, should have been sustained, for the reason that --

The plaintiffs, in order to join in an action for injunction must have a joint interest in the subject matter of the action. Each must stand on the strength of his own title. The use of the ditch by Shaw could not inure to the benefit of Williams, and the use of the ditch by Williams could not inure to the benefit of Shaw. (32 C.J. Injunctions, page 120 sec. 143; 48 Am. Jur. Injunctions, page 218, sec. 23; Cree v. Bancroft, 13 Ida. 407, 90 P. 228.)

The facts establishing adverse possession must be plead. (Fleming v. Howell, 125 P. 551; Webber v. Wanamaker, 89 P. 780; Erp v. Tillman, 131 S.W. 1057.)

The plaintiff must allege all of the elements required for such title. (Anderson v. Richardson, 178 P. 570, "The rule is that the complaint must allege that the possession was actual, adverse, exclusive and hostile, and under a claim of right, open and notorious, exclusive and continuous for the statutory period"; 2 Bancroft on Code Pleading -- Adverse Possession, Sec. 802, page 1151.)

Where plaintiff claims property by adverse possession and prescription, the burden is on the plaintiff to establish his right by clear and positive proof. (Pleasants v. Henry, 36 Ida. 728; Brown v. Brown, 18 Ida. 345; Am. Jur. -- Adverse Possession, Sec. 237.)

The plaintiff has the burden of establishing that his possession was open, notorious, exclusive and under a claim of right for the prescriptive period fixed by statute. (Bashore v. Mooney, 87 P. 553.)

To acquire a right by adverse possession and prescription it is necessary for the plaintiff to comply with the provisions of Sections 5-210, I.C.A. (Meyer v. Schoffler, 39 Ida. 500.)

Possession must be under claim or color of title. (Bower v. Killmeyer, 31 Ida. 712; Little v. Crawford, 13 Ida. 146.)

S. T. Lowe and Kales E. Lowe for respondents.

The court did not err in overruling the demurrer of the defendants, for

There was neither a misjoinder of parties plaintiff nor a misjoinder of Causes of Action, because

Several owners of an irrigation ditch may join as plaintiffs in an action to establish their rights therein and to enjoin interference therewith. (I.C.A., Sec. 5-312; Frost v. Alturas Water Company, 11 Ida. 294, 81 P. 996; Helphery v. Perrault, 12 Ida. 451, 86 P. 417; Morgan v. Udy, 58 Ida. 670, 79 P.2d 295; 39 Am. Jur. 898, Sec. 33; 20 R.C.L. 675, Sec. 15; 3 Kinney on Irrigation and Water Rights (2d Ed.) 2979, Sec. 1631.)

The uninterrupted continuous use of a ditch for more than the prescriptive period raises the presumption that the use was adverse and under a claim of right, and justifies a finding in favor of the user. (Taylor v. O'Connell, 50 Ida. 259, 295 P. 247; Bachman v. Reynolds Irr. Dist., 56 Ida. 507, 55 P.2d 1314.)

The court did not err in admitting in evidence the tracing, plaintiff's Exhibit A, for

A map, diagram or drawing shown to be a reasonably accurate illustration of the scene of a transaction or of the relative location of objects involved is admissible. (20 Am. Jur. 616, Sec. 739; Kleinschmidt v. Scribner, 54 Ida. 185, 30 P.2d 362.)

Miller, J. Budge and Givens, JJ., and Buckner, D.J., concur. Ailshie, C.J., sat at the hearing but did not participate in the decision.

OPINION

Miller, J.

This action was commenced June 29, 1942, by William E. Williams and Della M. Williams, his wife, Harry A. Shaw, Jr., and Mabel Shaw, his wife, as plaintiffs, respondents here, for the purpose of perpetually enjoining, restraining and estopping the defendants, Isaac J. Neddo, III, and Eunice Neddo, his wife, Deward John and Hope John, his wife, their grantees and successors in interest, and each and all of them, from using a certain ditch for conveying water to their land, or from cutting, obstructing or interfering with the use of said ditch, or from diverting any water therefrom; that the defendant, Melvin M. Ward, and his successors in office, as watermaster of Raft River District No. 8-C, in Cassia County, Idaho, be perpetually enjoined, restrained and estopped from turning into said ditch any water to which the defendants or either of them are entitled. The Neddos only are appellants. Defendants filed a demurrer to the complaint claiming, among other things, that there was a misjoinder of parties plaintiff. The demurrer was overruled. The complaint alleges and the answer admits that since about the year 1880 the respondents, William E. Williams and Della M. Williams, their grantors and predecessors in interest, were and now are the owners in the possession and entitled to the possession of the following described real estate in the county of Cassia, state of Idaho, to-wit:

Lots 3 and 4, and the SE 1/4 SW 1/4 of Sec. 19; Lots 1 and 2, and the E 1/2 NW 1/4 of Sec. 30, all in Twp. 12 S., R. 27 E.B.M.; and that since about the said year 1880 the respondents Harry A. Shaw, Jr., and Mabel Shaw, their grantors and predecessors in interest, were and now are the owners in the possession and entitled to the possession of the following described real estate in said county of Cassia, state of Idaho, to-wit:

Lots 3 and 4 in Sec. 30, Twp. 12 S., R. 27 E.B.M., and that all the said land is now being cultivated, is arid in character and requires water for the irrigation thereof, in order to produce beneficial agricultural crops thereon. The complaint also alleges and the answer admits that the appellants, Isaac J. Neddo, III, and Eunice Neddo, are the owners of real estate in the county of Cassia, state of Idaho, to-wit:

E 1/2 SW 1/4 of Sec. 30, Twp. 12 S., R. 27 E.B.M., and that the defendants, Deward John and Hope John, his wife, at the time of the commencement of this action were in possession of said real estate as tenants. Isaac J. Neddo, III, acquired the above described land from his father, who purchased it at a tax sale from Cassia County in 1927. Prior to 1907 or 1908 the Neddo land was Government domain. The original ditch, known as the "Darby Dam Ditch", and involved in this controversy, was constructed in 1886 and heads in Raft River near the north boundary line of Sec. 6, Twp. 13 S., R. 27 E.B.M. It extends in a northerly direction through the W 1/2 E 1/2, Sec. 31, Twp. 12 S., R. 27 E.B.M., and enters Sec. 30 and continues north near the center line of said Sec. 30 for approximately 1/4 mile, where it crosses the center line of said Sec. 30 and extends in a northerly direction until it enters the NW 1/4 of Sec. 30 at the SE corner thereof, and then extends in a northeasterly direction across the center line of Sec. 30 for approximately 1/8 mile, where it turns and runs in a northwesterly direction across the center line of Sec. 30 and crosses the SE 1/4 SW 1/4 of Sec. 19, Twp. 12 S., R. 27 E.B.M. The Darby Dam Ditch was extended in 1898 from near the SE corner of the NW 1/4 of said Sec. 30 to a point approximately 1/4 mile east of the SW corner of the NW 1/4 of said Sec. 30, and ever since the year 1898 was used in conveying water from the Darby Dam Ditch onto what is now Williams' land for the irrigation thereof. In 1915 or 1916 a "branch ditch" was constructed from the Darby Dam Ditch at a point just south of the center line of the E 1/2 SW 1/4 of Sec. 30, Twp. 12 S., R. 27 E.B.M. and extending a little north of west through the said E 1/2 SW 1/4 onto the Shaw land and running thence in a northerly direction and entering the NW 1/4 of said Sec. 30, where it joins the ditch constructed in 1898 and runs thence in a northerly direction onto the Williams land, and ever since 1915 or 1916 this branch ditch has been used in conveying water from the Darby Dam Ditch onto what is now the Shaw land and the Williams land for the irrigation thereof.

The appellant Isaac J. Neddo, III, and his immediate predecessor in interest, Isaac J. Neddo, Jr., claim to have acquired the right in 1928 to use the Darby Dam Ditch by permission from Robert Matheson, manager of...