147 P.2d 1009 | Idaho | 1944
The original complaint in this action was to quiet title to the waters of Mahogany Creek in Teton county. By amendment 4A to the complaint, appellant claimed adverse possession, and that respondents had abandoned their decreed rights by failing for more than five years to apply the waters to a beneficial use.
By the Snake River Decree, dated December 16, 1910, the following water rights, among others, were awarded the parties in this action or their predecessors in interest:
"C.E. Carrington, plaintiff, 160 miner's inches with priority of May 26, 1900, in Mahogany Creek;
Norma Dustin and Mrs. Norma Dustin, by mesne conveyances from George W. Allen, 160 miner's inches in Mahogany Creek, with priority of May 26, 1900; *528 Ralph Byrne and Mrs. Ralph Byrne, also by mesne conveyances from said George W. Allen, 20 miner's inches in Mahogany Creek with priority of May 26, 1900;
Golden R. Wood, Mrs. George E. Wood and the other Wood defendants herein, 160 miner's inches in said Mahogany Creek with priority of June 1, 1893, being a portion of the waters of said creek so decreed to one Samuel L. Wood."
In addition to the above rights, the following rights were acquired to the "high waters" of Mahogany Creek:
"Norma Dustin and Mrs. Norma Dustin, 160 miner's inches with priority of June 1, 1925; for Lots 1 2, Sec. 7-4-45;
Henry Bates and Mrs. Henry Bates, 100 miner's inches with priority of June 1, 1924, for Lots 3 4, Sec. 7-4-45."
Demurrer to the complaint was overruled. Cross-complaint by the several defendants, praying for adjudication of their rights under the Snake River Decree, was filed. The cause was tried to the court, without a jury. Nonsuit was granted as to plaintiff, Eleanore Patterson.
The court found, among other things, as follows:
. . . .
From the foregoing findings, the court concluded, inter alia:
"Mr. Norma Dustin and Mrs. Norma Dustin, 160 miner's inches with priority of June 1, 1925;
"Henry Bates and Mrs. Henry Bates, 100 miner's inches with priority of June 1, 1924.
. . . . *530
From a judgment in favor of defendants, plaintiff, Carrington, has appealed.
A great many errors are assigned but they may all be considered under four divisions:
(a) That the evidence is not sufficient to support the finding and conclusion of the court, that defendants and their predecessors in interest have not abandoned their decreed water rights, set forth in the Snake River Decree of 1910, to the waters of Mahogany Creek;
(b) Plaintiff, Carrington, or any persons claiming under him, has not acquired, by adverse use or appropriation to beneficial use, any of the waters of Mahogany Creek decreed to defendants and their predecessors in interest;
(c) That the court erred in not finding and holding that defendants, claiming the Allen decreed water, are barred by estoppel and laches on the part of defendants and their predecessors in interest, by reason of long delay and acquiescence in plaintiff's use of the waters;
(d) That the court erred in its findings and judgment, in decreeing the high waters of Mahogany Creek, on the ground that there was both lack of proof and necessary parties.
The record, comprising about 2100 folios, together with numerous exhibits, is too voluminous to justify any attempt at digesting or analyzing the evidence in the space of an opinion. However, examination and consideration of the entire case convinces us, that the trial court was fully justified *531 in holding that no abandonment of respondents' water right was shown.
Here we are not only confronted with the rule, that, where there is substantial evidence to support the findings of the trial court, we can not interfere with the judgment based thereon (Smith v. Clearwater County,
The evidence is conflicting, indefinite, and inconclusive. That, however, is accounted for in some measure by the number of years (more than thirty) covered by the oral testimony, lapses of memory, and the further fact, that the proofs are made up largely of the testimony of witnesses, each of whom was only familiar with the property for a comparatively short space of time, at different intervals. One thing, however, is quite apparent, from the testimony given on both sides, and that is, that there was more or less fussing and squabbling over this water for a long period of years. It seems to be undisputed, that at one time appellant joined in installing a headgate that would divide the water equally between his land and the Allen lands. Thereafter appellant would turn the full head of water on to his premises, and immediately one of the respondents would turn off his share (one-half of the flow) on to the Allen lands.
It is well established in this state, "that it requires very convincing and satisfactory proofs to support a forfeiture by abandonment of a real property right." (Perry v. Reynolds,
" 'Abandonment may be shown by the facts and circumstances, but clear proof is required to make out a case.' . . . (Sullivan C. Co. v. Twin Falls A. Co.,
See also St. John Irr. Co. v. Danforth,
An abandonment of a water right, under sec.
It has been held that, under a statute like ours, proof ofintent to abandon is not required where reliance is placed on anon-user for the full period of five years as prescribed by thestatute. In Lindblom v. Round Valley Water Co.,
What has just been said relates to forfeiture (abandonment as it is designated by the statute, sec.
"Leave, quit, renounce, resign, surrender, relinquish, vacate, . . . discard, . . . Abandon denotes the absolute giving up of an object, often with the further implication of its surrender to the mercy of something or someone else."
(Webster's New Internatl. Dictionary, 1941; Joyce v. MurphyLand etc., Co.,
The evidence wholly fails to establish a case of adverse possession in favor of appellant, under the provisions of sec.
The contention, that respondents are bound by the *533
application of the rule of laches and equitable estoppel is not thought to be sound or tenable under the facts of this case. Here there was a lack of acquiescence in appellant's claim, and no substantial expenditure appears to have been made upon the claim of ownership, as was the case in Hillcrest Irr. Dist. v.Nampa Meridian Irr. Dist.,
Paragraph No. 3 of the judgment provides as follows:
"3. That the defendants Norma Dustin and Mrs. Norma Dustin, Henry Bates and Mrs. Henry Bates, have acquired, through their predecessors in interest and through their own efforts, by appropriation to beneficial use, the high waters of said Mahogany Creek as follows:
Mr. Norma Dustin and Mrs. Norma Dustin, 160 miner's inches with priority of June 1, 1925, for Lots 1 2, Sec. 7-4-45;
Henry Bates and Mrs. Henry Bates, 100 miner's inches with priority of June 1, 1924, for Lots 3 4, Sec. 7-4-45, all of which is in said Mahogany Creek, Teton County, Idaho." Appellant insists that this part of the judgment was erroneously entered and, in support of assignment of error, says:
"The court, in its findings and in subdivisions 3 of the judgment (assignment of error No. 3) adjudged that the defendants Norma Dustin and Bates acquired new rights by appropriation and use to high water of Mahogany Creek. Such a provision in the decree is clearly erroneous.
In the first place, there is no definite way of determining the shutoff period between the high water belonging to the decreed rights of Mahogany Creek and when that is shut off so the decreed rights would begin. There were many people in the decree, entitled to the waters of Mahogany Creek as decreed. None of those parties were parties in this suit except Norma Dustin and wife, and Henry Bates and wife."
There is evidence which seems to support the finding and judgment as to the appropriation and use of the high waters of Mahogany Creek. The decree is binding as to all parties to the action but, of course, it will not be a bar to any person who is not a party or privy to this action. Moreover, the contingency, which appellant anticipates, seems to be provided for in paragraph 5 of the decree which reads as follows: *534
"5. Owing to the disclosure that proper measuring devices have not been installed and maintained in said Mahogany Creek for the purpose of making equitable distribution of the waters thereof, the Court hereby retains jurisdiction of the question of distribution, so that further orders may be made affecting same, upon application being made by any party, or parties, in interest at any future date."
The court has accordingly retained jurisdiction of the case, for the purpose of granting relief to any aggrieved party upon "the question of distribution."
We find no error in the judgment in the foregoing respects.
Judgment affirmed with costs to respondents.
Holden, C.J., and Givens and Dunlap, JJ., concur.
Budge, J., sat at the hearing but did not participate in the decision.