51 P. 990 | Idaho | 1898
This is an action to recover possession of a certain right of way for an irrigating ditch in Ada county, on which is situated an uncompleted canal. It is alleged in the ■complaint that on the eighteenth day of January, 1896, one Eagleson located a water right, the water appropriated thereby to be used in the irrigation of certain lands therein described, and that a notice thereof was duly posted on the south bank of Boise river, about one mile above what is known as the “New Tork dam site,” and nearly opposite the mouth of Sheep gulch, in Ada county (that being the place of intended diversion), whereby he claimed the waters of said river, to the amount of three hundred cubic feet per second; that within the time re-' quired by law a copy of said notice was filed for record in the recorder’s office of Ada eouffiw, and a duplicate copy thereof in the office of the state engineer; that said Eagleson, who is desig
This appeal involves the right to the possession and ownership of that portion of said right of way below said dam site, no-appeal having been taken from the judgment awarding that part of said right of way above said dam site to the appellant. It appears from the record that one Eagleson located a water-right on Boise river on January 18, 1896, with a view of diverting the water by means of a canal, and surveyed a right of way therefor, which right of way was substantially the same as the right of way hereinafter referred to as the “New York canal and right of way” (the intention being to appropriate said-right of way), and the uncompleted canal situated thereon;, that thereafter, on the 10th of February, 1896, said Eagleson, with others, organized the corporation plaintiff, and on the twenty-ninth day of February, 1896, conveyed whatever title he had acquired to said right of way and water right to said corporation; that thereupon said corporation began the construction of a canal on said right of way; that on about April 20, 1896, the defendant corporation, through its agents and employees, drove the agents and employees of the plaintiff corporation therefrom, and took possession thereof for the defendant, except that portion situated above said New York dam site. It further ap
Numerous errors are assigned, but the main question for decision is, Did the defendant establish.a superior right to the possession of said right of way ?
The first contention of appellant is that an action to establish a right to the possession of a right of way on the public
The Lynch and Hall location had been made prior to the purchase of canal and right of way of Bradbury by defendant, and, although the defendant did not plead said Lynch and Hall water right in the trial of the ease, the court permitted its proof; and that is assigned as error. Section 4225 of the Revised Statutes provides that no variance between the- allegations in the pleadings and proof is deemed to be material unless it has actually misled the adverse party to his prejudice in maintaining his action or- defense upon its merits. Had an amendment been offered, setting forth the location and purchase of said water right, we think the court would have been warranted in allowing it; and, besides, we do not think that the variance referred to misled the plaintiff to his prejudice. Section 4231 of the Revised Statutes provides that, in every stage of an action, courts must disregard any error or defect in the pleadings or proceedings which does not affect the substantial