168 P. 1145 | Idaho | 1917
The parties to this action own neighboring farms which are so situated that water conducted upon respondent’s land for the purpose of irrigation, which is not
Appellant contends that respondent has diverted from the canal which supplies his farm with water for irrigation more than was necessary and that the excess, which has been permitted to flow upon his (appellant’s) land, has rendered a portion of it swampy and has otherwise damaged his farm. He commenced this action to recover damages and to procure an injunction to prevent a continuation of the acts complained of.
Respondent contends, and the trial court found, that in order to properly irrigate his land it is necessary, because of the excessive slope of the ground, for him to divert from the canal and bring upon his farm more water than the soil will absorb; that it is necessary for him to permit, and for an uninterrupted period of more than five years prior to the commencement of this action he has permitted, the excess water to flow from his land on to that of appellant through the hollow above mentioned, and that, during all of said period of time, he has, with appellant’s knowledge, claimed and used it openly, notoriously, peaceably, adversely and under a claim of right as a waterway for carrying necessary drainage water from his land each and every year, during the irrigation season thereof, into Henry creek, and that such use has been made in a reasonable, careful and prudent manner. The findings are fully sustained by the evidence.
As a conclusion of law the court found that respondent has acquired a prescriptive right to permit the drainage water from his land to flow on to and across that of appellant, through the hollow, and entered judgment that appellant take nothing by the action. This appeal is from an order denying appellant’s motion for a new trial.
It is urged by appellant that respondent wasted water contrary to the provisions of secs. 3293 and 7144, Rev. Codes, and that such waste constituted a public nuisance which any person, specially injured thereby, might abate, and that a
In view of the evidence and the findings of the court, the use of the water by respondent and the drainage resulting therefrom cannot be deemed waste as contemplated by the statutes. He has a right to divert sufficient water to properly irrigate his land, and the fact that, because of its slope, it requires more than does land which is more nearly level, cannot defeat this right. From the evidence it also appears that he has adopted the methods of irrigation commonly employed in his locality, and that any means which would lessen the excess would be so expensive as to be prohibitive.
What constitutes a reasonable use of water is a question of fact (Wiel on Water Rights, 3d ed., sec. 481), and depends upon the circumstances of each case, such as the size of the stream, the number of consumers, the character of the soil, the nature of the crops planted, and other like considerations (Long on Irrigation, 2d ed., p. 238), and the method commonly used in the vicinity has a bearing in determining the amount of water to which a user is entitled. (Rodgers v. Pitt, 89 Fed. 420.)
It is well settled that an easement for the purpose of drainage across the land of another may be acquired by prescription. (40 Cyc. 649; Walley v. Wiley, 56 Ind. App. 171, 104 N. E. 318; Pascal v. Hynes, 170 Iowa, 121, 152 N. W. 26; Brand v. Lienkaemper, 72 Wash. 547, 130 Pac. 1147; Boynton v. Longley, 19 Nev. 69, 3 Am. St. 781, 6 Pac. 437; Campbell v. West & Mathis, 44 Cal. 646.) Such an easement is real property, under the laws of this state, hence the period of adverse possession is that mentioned in secs. 4036, 4037 and 4039, Rev. Codes.
The order appealed from is affirmed and costs are awarded to respondent.
