| Idaho | Sep 3, 1921
Lead Opinion
In her complaint appellant alleged that she was the owner of a certain tract of land situated in Ada county; that the respondent had partially constructed a dam and reservoir on her land and impounded water therein ; that the water so impounded overflows her land; that respondent claims an easement in her land for reservoir purposes, but the same is unlawful and wholly without right. Respondent in its answer admitted that it had constructed a reservoir and overflowed the land of appellant with the water impounded therein. By way of defense respondent alleged that while the land in controversy was unoccupied government land it had filed in the United States land office at Boise, Idaho, a map of its proposed reservoir, together with all other data required by the statute and regulations of the Department of the Interior, which map was approved by the Secretary of the Interior; that it constructed its reservoir and thei’eafter filed in the land office a map of amended definite location showing the reservoir as actually constructed, which included a smaller area than that embraced in the original application and also presented proof of such construction as required by the regulations of the
The appeal is from the judgment for defendant.
Appellant contends that the right of way for reservoir purposes, under the act of March 3, 1891, 26 Stats, at L. 1101, 1102, U. S. Comp. Stats., sees. 4934-4936, 8 Fed. Stats. Ann., pp. 803-805, must be for purposes of irrigation; that the evidence showed that respondent had not used the waters impounded in the reservoir for a period extending over many years and that it had therefore forfeited its right to maintain the reservoir. On the other hand, respondent contends that the right to have a forfeiture declared can be exercised only by the United States government either by means of a judicial proceeding brought for that purpose or by some appropriate act of Congress. We do not think that either contention can be considered in view of the condition of the record. The grant of right of way for reservoir, under the congressional act before mentioned, is one in praesenti, subject to forfeiture for failure to complete the works within five years after the location of the same. (United States v. Whitney, 176 F. 593" court="None" date_filed="1910-02-07" href="https://app.midpage.ai/document/united-states-v-whitney-9304377?utm_source=webapp" opinion_id="9304377">176 Fed. 593.) In this ease it is said: “This requirement being in the nature of a condition subsequent, the rule undoubtedly is that failure to comply therewith does not operate ipso facto to divest the grantee of the title and reinvest the grantor therewith, but that to be effectual, the default must be followed with a declaration of forfeiture by some competent authority, and, the grant here being of a public nature, such declaration can be made only by an act of Congress, or in an appropriate judicial proceeding.” (See, also, Union Land & Stock Co. v. United States, 257 F. 635" court="9th Cir." date_filed="1919-05-05" href="https://app.midpage.ai/document/union-land--stock-co-v-united-states-8811666?utm_source=webapp" opinion_id="8811666">257 Fed. 635, 168 C. C. A. 585; Schulenberg v. Harriman, 21 Wall. 44" court="SCOTUS" date_filed="1875-01-25" href="https://app.midpage.ai/document/schulenberg-v-harriman-88984?utm_source=webapp" opinion_id="88984">21 Wall. 44, 22 L. ed. 551.) The same principle applies where it is claimed that the right of way
Waiving the question as to the capacity of appellant to bring an action in a state court to have a forfeiture declared, we think that it is necessary that a complaint seeking such-relief set out the grounds upon which a forfeiture is sought. Forfeitures are not favored by the law, and where it is sought to enforce a forfeiture, the defendant is entitled to be informed by the pleadings as to the exact ground upon which it is claimed. Under the pleadings of the case at bar the appellant merely alleged that the claim of respondent of an easement for reservoir purposes was one unlawful and without right.
The answer of respondent alleging that it owned the right of way by compliance with the act of Congress above mentioned presented a complete defense to the cause of action alleged in the complaint. Appellant made no allegation in her complaint which would justify her in attempting to show that the right of way had been forfeited by breach of condition subsequent. It is true that our statute does not provide for a reply and that affirmative defenses are by statute deemed to be denied. But since a failure to use the right of way for the purposes .for which it was granted does not ipso facto effect a forfeiture, proof that respondent had failed to use the reservoir for irrigation purposes for a long number of years would not of itself defeat its title to the right of way for the reservoir. Its title continues until there has been a judicial declaration of forfeiture, or until there has been a re-entry by one invested with the right of re-entry.
The judgment is affirmed, with costs to respondent.
Rehearing
ON REHEARING.
A rehearing was granted herein October 31st, and the case was reargued November 28th following. The original opinion will be found in Carns v. Idaho-Iowa Lateral & Reservoir Co., ante, p. 330, 202 P. 1071" court="Idaho" date_filed="1921-09-03" href="https://app.midpage.ai/document/carns-v-idaho-iowa-lateral--reservoir-co-5171616?utm_source=webapp" opinion_id="5171616">202 Pac. 1071. Hurst v. Idaho-Iowa Lateral & Reservoir Co., post, p. 342, 202 P. 1068" court="Idaho" date_filed="1921-09-03" href="https://app.midpage.ai/document/hurst-v-idaho-iowa-lateral--reservoir-co-5171618?utm_source=webapp" opinion_id="5171618">202 Pac. 1068, involves the same questions as to title, and from that case it appears that the appellant here, some time subsequent to having brought this action, conveyed her title to that part of the premises which had been patented to her to the plaintiff in that action, so that the question of the title here in controversy appears to be also before the court in that action. However, in view of appellant’s insistence that this court has erred in its original opinion herein, the questions involved will again be considered.
We adhere to the view expressed in the former opinion that a grant under the act of Congress of March 3, 1891, is a grant in praesenti, and is subject to forfeiture for a failure to complete the work within the time and in the manner required by that act, but that such failure is a breach of condition subsequent and does not operate ipso facto to divest the title of the grantee; and further, that title obtained under said act can only be terminated by some appropriate legislative or judicial act on the part of such grantor, the government in this case, or its successor in interest. In view of the discussion of this question found in the former opinion, and the numerous citations of authority in support thereof in both the Carns and Hurst cases, supra, and since appellant does not challenge the correctness of this view, we do not deem it necessary to consider that question further.
Appellant insists that this court has erred in holding that her complaint is insufficient to sustain a decree terminating respondent’s title, which it claims to have acquired under
The complaint is in form the ordinary action to quiet title under C. S., sec. 6961. Courts have generally held that in the usual and ordinary controversies arising out of questions of title between litigants, “every interest or estate in land of which the law takes cognizance” may be considered and determined in an action of this character. (Fry v. Summers, 4 Idaho 424" court="Idaho" date_filed="1895-04-06" href="https://app.midpage.ai/document/fry-v-summers-5168196?utm_source=webapp" opinion_id="5168196">4 Ida. 424, 39 P. 1118" court="Idaho" date_filed="1895-04-06" href="https://app.midpage.ai/document/morgan-v-county-commissioners-5168193?utm_source=webapp" opinion_id="5168193">39 Pac. 1118; Johnson v. Hurst, 10 Ida. 309, 77 P. 784" court="Idaho" date_filed="1904-07-06" href="https://app.midpage.ai/document/johnson-v-hurst-5169023?utm_source=webapp" opinion_id="5169023">77 Pac. 784; Stewart Mining Co. v. Ontario Mining Co., 23 Idaho 724" court="Idaho" date_filed="1913-05-03" href="https://app.midpage.ai/document/stewart-mining-co-v-ontario-mining-co-5170333?utm_source=webapp" opinion_id="5170333">23 Ida. 724 at 745, 132 Pac. 787; Pettingill v. Blackman, 30 Idaho 241" court="Idaho" date_filed="1917-03-24" href="https://app.midpage.ai/document/pettengill-v-blackman-5170983?utm_source=webapp" opinion_id="5170983">30 Ida. 241, 164 Pac. 358.) "We have no intention to depart from the general doctrine announced in the foregoing cases.
The complaint alleges appellant’s ownership by virtue of her patent from the government, and that respondent has constructed or partially constructed a dam or reservoir upon said land, and by that means impounded water conveyed from a government ditch into said reservoir, and caused appellant’s land to be overflowed, that its claim of an easement thereon for reservoir purposes and the right to flood appellant’s premises is without right and such action is wrongful, and that by reason of such wrongful action respondent has wholly excluded appellant from the use of her said land, and prays that said easement may be adjudged to be without right or merit and that respondent’s claim to such easement be declared forfeited, and that it be restrained from further flooding her lands and for general equitable relief.
Respondent’s amended and supplemental answer alleges that the government issued its patent to appellant for the premises in question, “Subject to any vested and accrued water rights for mining, agricultural, manufacturing or other
This provision is found in all patents issued by the government in recent years, to entrymen under the homestead, desert entry or other public land laws, whereby individuals acquire title from the government. Respondent also alleges that its title was acquired to said premises by the act of March 3, 1891, and other laws of the United States relating to reservoir rights of way, and that in compliance with such acts it completed its reservoir about October, 1912, and that its right to the premises was confirmed by the Interior Department, and that the rights granted to appellant under her said patent from the government were acquired under the homestead act subsequent to the grant to respondent under the said act o.f March 3, 1891. Respondent’s claim of title is based on record facts, and these facts are not susceptible of being denied, and we do not understand that appellant denies that respondent did lawfully acquire its title under said act of Congress prior to her patent, but does claim that it should be decreed forfeited, for breach of condition subsequent. . It thus appears from the pleadings and admission that both parties had at the inception of this action, and still have, perfectly good titles to their respective interests in said premises, each severally derived from the common grantor, the government, the title of each being limited by and subject to all the rights of the other claimant, a condition frequently arising with regard to lands granted by the government under different statutes and for different purposes, to different grantees. But appellant contends that notwithstanding this condition of the title, she is entitled under her complaint, wherein her allegations are limited as above stated, to a decree of forfeiture for condition broken against respondent, because of its failure to comply with the terms of the federal grant regarding conditions subsequent. That is, appellant claims that under the provisions of C. S.
However, we think in a controversy of this kind between two parties, each holding title to the same premises derived from the government, that the holder of the servient fee should not be permitted to have the base fee extinguished, under the ordinary allegations of a complaint to quiet title, but that a complainant should be required to advise a defendant that his title is challenged for conditions broken, and affirmatively allege the facts and circumstances upon which complainant predicates such contention. A complaint which merely alleges that the plaintiff is the owner of the fee, which as in this ease is quite true, and may be admitted by the defendant without in any way impairing its own title,
Appellant places great stress upon her prayer for forfeiture, but it is a well-settled rule of pleading that issues tendered by a complaint cannot be extended beyond their natural import by reason of anything contained in the prayer. As a rule, any relief may be granted in an equitable action consistent with the averments of the complaint, under a prayer for general relief. This being so, appellant’s prayer for a forfeiture adds nothing to the complaint.
In United States v. Northern Pacific Ry. Co., 177 U.S. 435" court="SCOTUS" date_filed="1900-04-09" href="https://app.midpage.ai/document/united-states-v-northern-pacific-railroad-95254?utm_source=webapp" opinion_id="95254">177 U. S. 435, 20 Sup. Ct. 706, 44 L. ed. 836, it is said: “Courts have no jurisdiction to consider or determine the question of the forfeiture of a railroad grant until it is raised by direct allegations in a suit instituted by lawful authority for the express purpose of raising it.” (Citing 37 C.C.A. 290" court="8th Cir." date_filed="1899-07-10" href="https://app.midpage.ai/document/united-states-v-northern-pac-r-8865884?utm_source=webapp" opinion_id="8865884">37 C. C. A. 290, 95 Fed. 879.)
This opinion further says: “It is claimed that under sec. 8 of the act of July 2, 1864, noneompletion of the railroad within the time limited of itself operates as a forfeiture; the grant immediately reverts to the government; and courts must so hold on the simple statement of the fact of noncompliance within the limit. "We do not understand this to be a correct statement of the law.”
The court below found that the water impounded by respondent in said reservoir had not been let out upon lands for the purpose of irrigation, or put to any beneficial use, since 1904, but that the reservoir had been filled each year at the beginning of the irrigation season under a contract with the United States Reclamation Service, whereby such service agreed to fill the reservoir every year and supply additional water to cover seepages and losses, and