Willis v. Willis

• Decision Date: 24 December 1920
• Citation: 194 P. 470,33 Idaho 353
• Parties: JOSHUA T. WILLIS, MARIA WILLIS and JOSEPH WILLIS, Appellants, v. BRYANT WILLIS, MAUD CAMERON and HERBERT PROTHERO, Respondents
• Court: Idaho Supreme Court

194 P. 470

33 Idaho 353

JOSHUA T. WILLIS, MARIA WILLIS and JOSEPH WILLIS, Appellants, v. BRYANT WILLIS, MAUD CAMERON and HERBERT PROTHERO, Respondents

Supreme Court of Idaho

December 24, 1920

STATUTE OF FRAUDS-CONTRACTS-FULL PERFORMANCE-EFFECT OF-CONSIDERATION-IRRIGATION-WATER RIGHTS-ACTION TO QUIET TITLE TO-COMPLAINT-ESSENTIAL ALLEGATIONS OF-PRIORITIES-FINDINGS.

1. The statute of frauds does not apply to a contract which has been fully performed.

2. The completion of diversion works in time to protect permit-holder's rights which might otherwise be lost is such a benefit to the permit-holder as to constitute a valid consideration for an agreement that the right to use the waters diverted by the works as between the parties should be equal as to priority.

3. When the conclusions of law and the judgment based thereon are not sustained by the facts found, the judgment will be reversed or modified.

4. A judgment not sustained by the pleadings will be reversed or modified.

5. A complaint which fails to state that lands sought to be irrigated are arid in character and require artificial irrigation, that waters have been applied to a beneficial use thereon, or that the parties are in a position to apply such waters to a beneficial use, and the amount of water necessary to be applied to the lands, lacks the essential allegations necessary to constitute an action to quiet title to a water right.

APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. William A. Babcock, Judge.

Action to establish priority of water rights. From judgment decreeing the priorities, plaintiffs appeal. Remanded with instructions.

Judgment modified and cause remanded with instructions. Costs awarded to the respondents.

Sweeley & Sweeley, for Appellants.

If the findings of fact do not support the judgment, the judgment must be reversed. (Ponting v. Isaman, 7 Idaho 581 65 P. 434; 8 Standard Ency. of Proc. 1032, and cases cited in note.)

As the defendants were legally bound, under their water permits, to construct a ditch from the common point of diversion to their land, their work in the construction of a joint ditch which involved advantage and no detriment to them is not a sufficient consideration to sustain an agreement on the part of the plaintiffs to give them an interest in the plaintiffs' water rights. (6 R. C. L. 664, sec. 73, and cases cited in notes.)

A water right is real estate and must be conveyed as such. This can only be done by a written instrument. (Gard v Thompson, 21 Idaho 485, 123 P. 497; McGinness v Stanfield, 6 Idaho 372, 55 P. 1020.)

C. M. Booth, for Respondents.

This contract was fully performed, and therefore does not come under the statute of frauds. (King v. Seebeck, 20 Idaho 223, 118 P. 292; Stowell v. Tucker, 7 Idaho 312, 62 P. 1033.)

BUDGE, J. Morgan, C. J., and Rice, J., concur.

OPINION

BUDGE, J.

On August 17, 1908, Joshua T., Joseph and Asa Willis made application to the state engineer for a permit to appropriate 9.6 cubic feet per second of the waters of Big Creek. On September 15, 1908, Alonzo and Isaac Willis made application for a permit to appropriate 6.4 cubic feet per second from the same stream. In May, 1909, Herbert E. Prothero made application for a permit to appropriate 3 cubic feet per second from the same source. All of these applications were allowed, the point of diversion under each permit being the same.

In 1908 Asa conveyed his interest to his mother, Maria Willis. On August 7, 1912, Alonzo quitclaimed his interest to Maud Cameron. On August 9, 1912, Isaac conveyed his interest to Bryant Willis. All of the parties to the action are members of the same family, Joshua T. and Maria Willis being the parents, Joseph and Bryant Willis, their sons, Maud Cameron, a daughter, and Prothero, a son-in-law. They were all owners of, and in possession of, lands adjoining each other.

Prior to 1912, appellants, together with Alonzo and Isaac Willis and Prothero, surveyed a ditch at their joint expense from Big Creek to their respective lands and also surveyed a site for a reservoir, which at that time they intended to construct to impound the waters of Big Creek for the irrigation of their lands, under an agreement that their rights to the use of the waters so impounded should be equal. The reservoir was found to be too expensive and was abandoned. Some work was done upon the ditch by the appellants in 1908 and 1910. In the spring of 1912 appellants' rights under their permit were about to expire. To prevent this contingency, appellants and respondents entered into an agreement, the exact nature of which is the main issue in the case, with respect to which the court found:

"That in the spring of the year 1912 the plaintiffs and defendants herein reached an understanding whereby the construction of the necessary ditches and irrigation works should be undertaken and completed by the joint efforts of the plaintiffs and defendants, for the diversion, appropriation and use of the water owned respectively by the parties plaintiff and defendant, and that in consideration of assistance in the construction of the ditches and irrigation works to be rendered by the defendants, the plaintiffs agreed that the defendants should share with the plaintiffs equally in the use and appropriation of the waters of Big Creek under the permits and rights held and owned by all parties, and that the defendants herein would be entitled to the benefits of the plaintiffs' date of priority under their said permits, and the plaintiffs would be entitled to the benefits under the permits and water rights held and owned by the defendants, and that there should be no priority of right to the use of said waters under any permits as between the parties hereto."

Although the evidence is conflicting, there is substantial evidence to sustain this finding.

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