Branstetter v. Mann, 57 P. 433

Branstetter v. Mann

57 P. 433 | Idaho | 1899

QUARLES, J.

— The plaintiffs claim to own an undivided one-half interest in and to a certain ditch known as the “Car-mody ditch,” conveying two hundred and fifty inches of water, with a like interest in the water right appurtenant thereto, and plaintiffs assert that the other half of said ditch and water right is owned by the defendants. Plaintiffs aver that by *583mutual consent the defendants took and had the sole use and possession of said ditch and water right during the mining season of 1894, as bailees of plaintiffs, and that the rents, issues and profits resulting from rental and sale of waters therefrom during said season was the sum of $1,460 over and above the expense of earing for and maintaining said ditch and water right, which sum, the plaintiffs allege, has not been accounted for by the defendants to the plaintiffs. This suit was brought by the plaintiffs to recover one-half of 'said sum, to wit, the sum of $730. The answer specifically denied the allegations of the complaint, and affirmatively alleged ownership in the defendants to an undivided three-fourths of said ditch and water right and alleged other affirmative matter in defense of plaintiffs’ action. The cause was tried by the court without a jury, and findings of fact made and judgment rendered in favor of the defendants. Plaintiffs moved for a new trial, which was denied, whereupon they appealed from the judgment and from the order denying a new trial. The errors relied upon by the appellants for a reversal are: 1. That the finding that the defendants own three-fourths of the ditch and water right is not supported by the evidence; 2. That plaintiffs were entitled to the judgment demanded, and the judgment for the defendants is not supported by the evidence; 3. Appellants also specify eight errors in allowing certain evidence to be introduced.

We find in the record a conflict of evidence upon the material issues, and do not feel justified or authorized to disturb any of the findings. It is alleged in the answer, and found as facts by the court, that the interest in dispute in the ditch in question (an undivided one-half) was purchased by one W. B. Noble (one-half thereof for plaintiffs, and the other one-half for the predecessors of the defendants) in 1877, and the deed therefor taken in the name of W. B. Noble; that one-half of the purchase price therefor was advanced to said Noble by the predecessors of the defendants, and used by said Noble in paying for said interest in the ditch, the said Noble agreeing to hold one-half of said interest for the predecessors of defendants ; and that for more than ten years prior to the commencement of this action the defendants have been in the possession *584of said ditch and water right, holding and claiming three-fourths thereof for themselves and one-fourth thereof for the plaintiffs.

The remaining errors assigned by the appellants are to the rulings made by the trial court in admitting parol testimony to show the resulting trust under the Noble deed to the predecessors of the defendants. Such evidence was admissible, and not prohibited by our statute of frauds. One who takes the title to real estate purchased with funds of another, and for the benefit of the latter, holds as trustee, and parol evidence is admissible to establish such trust. In this case it appears that Noble, the trustee, afterward, by deed, conveyed the entire interest held by him as such trustee to plaintiffs; but the position of plaintiffs is not improved by such subsequent deed, as they knew the circumstances under which Noble held, and are charged with notice of the trust. Finding no reversible error in the record, the order denying a new trial and the judgment appealed from are affirmed, with costs to respondents.

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