63 P. 192 | Idaho | 1900
Lead Opinion
Although this ease is, as shown, by the record, an action to restrain a trespass, still it seems to have been treated by both court and counsel as an action to quiet the title of the parties litigant to the waters of Soda creek, or to a ditch taking water from said creek. Appellant states in his brief that "this is a suit in equity to quiet the title of appellant to a certain ditch, described and set forth in the complaint.” In hie complaint appellant, after setting forth his title to the ditch and the water therein flowing, and alleging the acts of defendant ' in taking water therefrom, prays "that the defendant be required to set up any right he may have or claim in or to the ditch or canal, and the waters flowing therein, belonging to plaintiff, and that any such right or claim be adjudged and decreed to be inferior and subordinate to the rights of the plaintiff, and void as to the ditch or canal owned by the plaintiff”; and then prays that the defendant be perpetually enjoined from interfering with the right of the plaintiff in and to the ditch or canal aforesaid, or the water flowing therein. The complaint also sets forth the ownership by plaintiff of certain lands susceptible of irrigation by means of the waters aforesaid, and avers the right in the plaintiff to the use for irrigating said land of three hundred and twenty inches of water, measured under a four-inch pressure, of the flow of the waters of said Soda creek. .Defendant admits the ownership by plaintiff of the lands described in the complaint, but denies that plaintiff ever used more than fifteen inches of said water for irrigating said land, or that plaintiff has more than fifteen acres of land that is susceptible of irrigation from said ditch and the water of said Soda creek. Defendant also avers that plaintiff’s predecessors in interest, and who constructed said ditch, found it necessary in such construction to. run said ditch through two subdivisions, of forty acres each, of defendant’s land, and, in consideration of defendant granting to him the right of way through said lands, plaintiff’s grantor (one Horseley) did agree to give to defendant an interest in said ditch for the purpose of using the waters therein; and that the defendant has, for each and every year since the construction of said ditch, used the waters of the said Soda creek through the said ditch for the irrigation of the lands
The court finds, inter alia, after finding the appropriation (no definite number of inches appearing) of said waters by Horseley, the predecessor of plaintiff, as follows: "After the posting of the notice of appropriation as aforesaid, and prior to the actual commencement of work in the excavation of said ditch, it was ascertained that said ditch would traverse two forty-acre subdivisions of the" defendant’s (William Chester’s) land, and thereupon it was verbally agreed between the said Herbert Horseley and defendant that, as a consideration for crossing said land of the defendant with said ditch, the said defendant should be allowed to run water through, and have an interest in, said ditch or canal; that the supply of water from said Soda creek is abundant for all appropriators, and many hundreds of inches of said water going to waste each irrigating season; that one inch to the acre is sufficient water for the irrigation of any of the lands of the plaintiff or defendant; that plaintiff and his predecessors in interest have continuously used from said canal water sufficient to irrigate ten acres of his said land and for domestic purposes; that defendant has continuously, each and every year, used water from said canal for the land mentioned in finding 13 hereof, as such land has been cleared and cultivated.” And as conclusions of law the court finds "that the defendant is entitled to the use of said canal for the purpose of flowing seventeen inches of water through the same from the point of diversion to the land of the defendant, and to the use of seventeen inches of water from said ditch for the purpose of irrigating said land.” And the plaintiff is perpetually enjoined and restrained from interfering with the defendant in the use of said amount of water from said ditch.
Appellant presents the following specifications of error: "1. The court erred in its conclusions of law, and the decree based thereon, awarding respondent the right to use said canal for the purpose of flowing seventeen inches of water through the same,
As to the first specification of error: The defendant having paid the consideration by giving the right of way for the ditch through his land, and having received and enjoyed, for some seven or eight years, the use of the ditch and water, it would be inequitable to permit the plaintiff to now deprive him thereof while retaining the benefit of the consideration given by defendant therefor. (See Stowell v. Tucker, ante, p. 312, 62 Pac. 1033, also Rev. Stats., sec. 6008.)
As to the second specification: Both the complaint and answer contain a prayer for general relief. Courts will not do equity by halves. Having the parties before it, and having jurisdiction of the subject matter, the averred purpose of the action being “to quiet the title to the ditch and water,” it seems to us eminently proper that the court should, by its decree, settle the whole matter. While, technically, it would have been more in
Rehearing
ON REHEARING.
A careful consideration of the petition for rehearing fails to convince us that our conclusion as set forth in the original opinion, is incorrect. It is insisted that the decision in this case is in conflict with the decision in the case of McGinniss v. Stanfield, decided by this court, and reported in 6 Idaho, 372, 55 Pac. 1020, where we held that, “under the statutes of Idaho, a verbal contract for the sale or transfer of real estate is not admissible in evidence against a stranger to such contract.” The case at bar is entirely different from the case of McGinniss v. Stanfield, supra. In this ease, Horseley, the grantor of appellant, entered into a contract with respondent, whereby it was agreed that said Horseley should have the right of way across respondent’s land, for and in consideration of the use of water by respondent, which is the subject matter of this action. This agreement was fully executed by both parties, and soon after its
