65 P. 442 | Idaho | 1901
Lead Opinion
This action was commenced by the respondents, as plaintiffs, to obtain a decree for the specific enforcement of a contract or agreement made and entered into by and among three different parties, viz., Simpson Goble, Asa M. Kimbrough, and Jennie B. Galbraith, on the seventeenth day of December, 1891, for the purpose of compromising and settling litigation among themselves then pending to settle the rights of said parties in and to the waters of that certain stream in what is now Blaine county, known as “Seaman’s Creek.” In said agreement it was agreed that the waters of said creek should be equally divided among said three parties, with the exception of one hundred and fifty inches therein agreed to belong to the city of Bellevue, and that said parties should place a box or flume, with division boards inserted therein, in said creek, as near as practicable to the head of the ditches then and theretofore used by said Kimbrough. It was also agreed in said agreement, which was in writing, that each of said parties should be bound in the penal sum of $1,000 for the faithful performance of said agreement, which sum might be recovered, by the party injured, against the party or parties violating said agreement. This agreement, while signed
A careful study of the record shows that Kimbrough, the predecessor in interest of appellant, never claimed more than one-third of the waters of said stream adversely,, as against the respondents, Buller and Daly, and their predecessors in interest, said Goble and Galbraith. Appellant has, however, claimed said waters adversely to the respondents since June, 1898, and has largely, if not wholly, deprived respondents of the use of said waters. There is no merit in appellant’s contention that he has obtained the right to the use of said waters by prescription or adverse user under our statutes, and his plea of the statute of limitations must fall.
A careful examination of the record convinces ns that substantial justice has been done in this case, but, for the reasons above given, the decree of the district court should be modified. The cause is remanded to the district court, with instructions to modify the decree entered by the trial court in this cause by striking and eliminating therefrom that portion thereof decreeing a specific performance of said contract, and by providing that the one-third of the water of said stream, after deducting therefrom the one hundred and fifty inches belonging to the town of Bellevue, to which the appellant is entitled, be measured to him at the head of his ditch or ditches, and the balance equally divided between respondents Daly and Buller; and in all other respects the decree appealed from is affirmed. "Under the circumstances in this case, we feel that the costs of this appeal should be borne equally, one-third to each, by the appellant, Josslyn, and by the respondents Buller and Daly, and it is so ordered.
Rehearing
ON REHEARING.
The appellant has filed a petition for rehearing, in which it is insisted that the sole relief demanded by the plaintiff in this action was the specific performance of the agreement mentioned in the original opinion. This contention is not sustained by the record. One of the grounds of relief for which the action was brought was to obtain a perpetual injunction restraining the defendant, Josslyn, from taking or using more than one-third of the waters of Seaman’s creek, after de
The only two errors in the decree rendered by the lower court, and which we felt it our duty to modify and correct, are the following:
1. The striking out of the decree the following: “It is further-ordered, adjudged and decreed that the said contract be specifically performed by the said parties plaintiff and defendant, and that the said Josslyn make, or assist in making, or permit the
2. By adding to the words, “and that the defendant, Josslyn,. as successor in interest to the said Asa M. Kimbrough, is entitled to the remaining one-third of the waters of said creek, less the one hundred and fifty miners’ inches aforesaid,” the words, “measured at the head of his ditch,” and by inserting like words in the paragraph relating to the water allotted to the plaintiffs..
We held in the case of Stickney v. Hanrahan, ante, p. 424, 63 Pac. 189, that a decree distributing water which fails to specify that the water is to be measured at the point of diversion is imperfect, and would be, upon appeal, modified in that respect, The decree as modified is within the issues made by the-pleadings, and the rehearing asked is denied.