121 P. 522 | Wyo. | 1912
This action was brought in the District Court in Fremont County by Henry Harting against Edward A. Gustin to recover damages alleged to have been sustained through the destruction by defendant of a flume that had been used in connection with certain ditches for the purpose of conveying water appropriated by the plaintiff for the irrigation of a nine-acre ■ tract of land situated in the southeast corner of the northwest quarter of the northeast quarter of Section 12 in Township 33 North Range 100 West of the Sixth principal» meridian.
The petition alleges that before and at the time of the injury complained of the plaintiff was one of the joint owners
It appeared upon the trial that the defendant was the owner of all the quarter section of land above referred ro except the plaintiff’s nine-acre tract; and that he had acquired the title thereto in October, 1886, under an execution sale upon a judgment rendered in his favor against Amos Gustin, the former owner- of the land. It also appeared that the Harting & Sharp ditch, or the “main ditch” as it i.? railed, runs across a part of defendant’s land in a south
It is not disputed that from the time of the construction of the flume in question the plaintiff irrigated his nine acres of land with water which ran into and through the flume from the Harting & Sharp ditch; and that through that flume or another replaced by it and located in the same <~r substantially the same place the plaintiff had for a period of about thirty years irrigated his land and also from about the year 1879 until 1897 an adjoining tract of one
There is a direct conflict in the evidence as to when and by whom the' flume was built, and incidentally as to the number of flumes that had been built and used for the purpose aforesaid. The defendant testified that the flume destroyed was 'built by him in 1.892, and that under a verbal agreement allowing him to run water through a portion of the Harting & Sharp ditch he permitted the plaintiff to use the flume. And it appears that the defendant had constructed a branch flume from about midway of the flum.e in question to a ditch upon some of his land lying south thereof, and that to irrigate such land he diverted the water from the main flume into his branch flume and connecting ditch. . It appears also that a few days before the defendant destroyed the flume he had been notified in writing by the plaintiff and the other partes claiming to own the main ditch not to take water from any of their ditches, nor to put any waste water therein. Plaintiff’s evidence with reference to the defendant’s said use of the ditch and flume is confined to statements that they were so used without attempting to explain whether or not there was any agreement therefor. But the agreement testified to by defendant is contradicted in effect by the plaintiff’s evidence presently to be stated showing that the plaintiff and those interested with .him, and not the defendant, built the flume, and that plaintiff used it under a claim of right as one of its owners. The court instructed the jury that if they found that the plaintiff and defendant used the flume jointly under a mutual-agreement made in 1892 with plaintiff who used the flume in consideration of permission granted to the defendant to carry certain water through the Harting & Sharp ditch to be
The showing made by the plaintiff's evidence in relation to the building of the flume and the right to do so is to the effect that the one destroyed was'built in 1903 by the plaintiff and Fosher & Earle, replacing a former one located in the same place which had become in bad condition, and which had been built by the plaintiff for his own use about the year 1892; that about thirty years before the time of the trial the plaintiff had built a flume in substantially the same place with the express verbal consent of Amos Gustin, then in possession of and claiming the land; and that he. used such flume in connection with the main ditch .continuously until the second flume was constructed to take its place about 1892. There is no contradiction of the plaintiff’s testimony respecting the fact and' the time of building the first flume and the consent thereto of Amos Gustin; but the defendant admitted in his testimony that such flume was there when he became the owner of the land, and we do not understand the evidence to show that he made any claim to that flume or any objection to its use by the plaintiff. The plaintiff also testified .generally without relating any conversation occurring
The testimony of the plaintiff concerning the building of the first flume and the right given him to build it upon the land now owned by the defendant is as follows: “The first flume I put in, I think it is thirty years ago; I think along there. I got a right from Amos Gustin, the first one I put in. T asked.him if I could put a flume in there. He told me yes, to put it any place I wanted to put it. I turned around and put in the-flume across the hollow there.” There appears to have been a slight difference between the location of the first flume and the second which replaced it, but not sufficient, we think, to operate as an abandonment of any right acquired through the consent of the owner of the land to the building
It is suggested that the attempt to secure a deed from the defendant for the right of way, if for the flume as claimed by the plaintiff, amounted to a confession that no right of way had been previously acquired, or an abandonment of any claim based upon the construction and use of the flume. But we think the evidence sufficient to justify the conclusion that the negotiations for the deed on the part of the plaintiff and those interested with him were prompted by a desire to secure written evidence of the right and title already claimed, believing that then the defendant would not be inclined to further disturb them in such right. As said in Coventon v. Seufert (Or.) 32 Pac. 508, “No offer to purchase after the statute has fully run will bar the claim of adverse possession, unless the relation of vendor and vendee under a contract to purchase, or of landlord and tenant, once existed between the parties.” The evidence as to the deed was proper to be considered in determining whether the flume had been built and maintaind by the plaintiff under a claim of right in good faith; but the fact that such a deed was negotiated for is not to be regarded as conclusive against the existence of a right of way previously claimed or acquired. It was within the
Upon the facts in the case, the propositions that the plaintiff had acquired a right of way for the flume by prescription, and also the right to maintain it under an irrevocable license are so connected that it is necessary to consider them together. The actual and continuous use of an easement, as of right, for the period of limitation for bringing .an action to dispossess the claimant creates the presumption of a grant. In this case the plaintiff has disclosed the source of his right, viz: the parol consent of the landowner to the building of the flume. If the right so given was and remained merely permissive so as to be revocable at any time by the landowner, it would not ripen into a title by prescription, no matter how long continued, for then the possession or use would not be hostile or adverse. But if the parol consent was given to use the land as if legally conveyed, the use would then be as of right, which, if continued for the requisite period, might develop into a prescriptive right. (Gould on Waters, sec. 338; Stearns v. Janes, 12 Allen, 582.) Under our statute enacted in 1886 an action for the recovery of the title or possession of lands, tenements or hereditaments can only be brought within ten years after the cause of action accrues. By the statute previously in force the limitation as to such an action was fixed at twenty-one years; and by express provision of the present statute the limitation thereby prescribed was not to apply to cases wherein the right of action had already accrued, but the statute in force when the right of action accrued was declared to be applicable to such cases. The facts here do not bring the case within the exception, for the reason that even if the parol consent or license was revocable it had not been revoked when the statute
It does not appear that prior to 1892 there had been the slightest interference' with the use of the flume and right of way by the plaintiff, but his use appears to have been actual, open, notorious, exclusive and continuous for more than ten years, to say nothing of the use after 1892. It is clear, therefore, that such use is sufficient to establish a right by prescription, unless the flume was built and maintained under a mere revocable license, without any proper claim of a hostile right. In this state, as held in Bryant v. Cadle, 18 Wyo. 64, it is not necessary that adverse possession be founded upon color of title. The right of way for the main ditch is not questioned. Indeed from the rather meager evidence on the subject that ditch seems to have been located and built before Amos Gustin settled upon or acquired the land, and when it was'public land of the United States. That the plaintiff might use and preserve his right in the main ditch he secured the consent of the owner of the land on which it was located to build a flume connecting with it, so as to conduct the water upon his adjoining land; and thereby he was enabled to irrigate and cultivate his land. Relying upon the consent lo build and maintain the flume, he not only built that structure, but during the year in which it was destroyed, as well as in previous years, he had prepared his land for cultivation, and grain, vegetables, plants and fruit trees were growing thereon.
There is much conflict in the decisions respecting the re-vocability of an executed parol license where the licensee has expended money upon the faith of the license. The authorities on the subject were exhaustively discussed in Metcalf v. Hart, 3 Wyo. 514, which-was an action for specific performance involving a license to erect a building upon land of the defendant, and the conclusion was reached that it is impossible to lay down a general rule enforceable in all cases, but that a license by parol when executed and after expenditures have been made may or may not be revocable, depending
In the case of Maple Grove &c. Co. v. Marshall, (Utah) 75 Pac. 369, it appeared that pursuant to a parol license a party had built a flume upon another’s land, and afterwards replaced it with pipe, for the purpose of carrying water to irrigate the land of the licensee. A purchaser of the land on which the pipe line was located entered on the right of way, tore up the pipe, and prevented the water from flowing upon the land of said licensee. The court say: “To permit a revocation under such circumstances would be a fraud upon the licensee, because the parties would not be placed in statu quo after the license has become executed. This fact that the parties cannot be placed in statu quo is of itself sufficient
The principle that a parol license when executed by the expenditure of money or labor, if not given for a mere temporary purpose, becomes irrevocable has been recognized and applied in several other cases involving the building of irrigating ditches or other irrigating works.. (1 Weil on Water Rights (3rd Ed.) pages 600-602; Arterburn v. Beard, 86 Neb. 733; Coventon v. Seufert, (Or.) 32 Pac. 508; Stoner v. Zucker, 148 Cal. 516, 83 Pac. 808; Flickinger v. Shaw, 87 Cal. 126, 22 Am. St. 234; De Graffenried v. Savage, (Colo.) 47 Pac. 902; Tynan v. Despain, (Colo.) 43 Pac. 1039.) And in other cases where the license was for the construction of a dam, aqueduct, drain, or the like. (Rerick v. Kern, 14 S. & R. (Pa.) 267, 16 Am. Dec. 497; Clark v. Glidden, 60 Vt. 702; Ferguson v. Spencer, 127 Ind. 66; School Dist. v. Lindsay, 47 Mo. App. 134.)
A leading case on the subject of the revocability of an executed parol license is Rericlc v. Kern, supra, which was a suit in Pennsylvania to recover damages for the removal of a structure which had been erected on defendant’s land to turn the water of a stream into a different channel, for the purpose of supplying water to a saw-mill built by the plaintiff upon the faith of the license. A judgment for the plaintiff was affirmed. In that state, as remarked in Metcalf v. Hart, supra, there were no chancery courts, and equitable relief was administered in common law actions and through the common law forms. We quote from the opinion at
“But a license may become an agreement on valuable consideration; as where the enjoyment of it must necessarily be preceded by the expenditure of money ;• and when the grantee has made improvements or invested capital in consequence of it, he has become a purchaser for a valuable consideration. * * * * A right under a license, when not specifically restricted, is- commensurate with the thing of which the license is an accessory. Permission to use water for a mill, or anything else that was viewed by the parties as a permanent erection will be of unlimited duration, and survive the erection itself, if it should be destroyed or fall into a state of dilapidation; in which case the parties might, perhaps, be thought to be remitted to their former rights. But having in view an unlimited enjoyment of the privilege, the grantee has purchased, by the expenditure of money, a right, indefinite in point of duration, which cannot be forfeited by non-user unless for a period sufficient to raise the presumption of. a release. The right to rebuild, in case of destruction or dilapidation, and to continue the business on its original footing, may have been in view as necessary 1o his safety, and may have been an inducement to the particular investment in the first instance. The cost of rebuilding a furnace, for instance, would be trivial when weighed with the loss that would be caused by breaking up the business and turning the capital into other channels; and therefore a license to use whter for a furnace would endure forever. But it is otherwise, where the object to be accomplished is temporary. Such usually is the object to be accomplished by a saw-mill, the permanency of which is dependent on a variety of circumstances, such as abundance of timber, on the failure of which the business necessarily is at an .end. But 'till then it constitutes a right for the violation of which redress may be had by action. With this qualification it may safely be affirmed that expending money or'labor, in consequence of a license to divert a water course or use a water
In Clark v. Glidden, supra, it was held that a parol license to lay an aqueduct to a spring of water on one’s land is irrevocable during the existence of the aqueduct; that a court of equity will protect the licensee in the use of the aqueduct, and restrain the owner of the spring from interfering with the aqueduct, on the ground of equitable estoppel and that a revocation of the license would operate as a fraud. In Ferguson v. Spencer, supra, a suit for damages caused by interrupting the flow of an artificial stream through, or diverting it from, a tile drain through which water was supplied to plaintiff’s animals on .her farm, it was held that the oral agreement under which the drain was constructed on defendant's land, having been acted on, had the effect to create a license to revoke which would be a fraud, and the defendant was liable in damages for digging up the drain. In the Missouri case cited above, it was held that a parol license cannot be revoked, when the licensee on the faith of the license with the knowledge of the licensor has expended money and labor in carrying out the object of the license (in the case cited, digging a well to furnish water for a district school), and there need be no consideration going to the li-censor. The suit was brought for injunction.
In Stoner v. Zucker, supra, it was held that where one enters on the land of another under a parol license to construct an irrigating ditch, the license, when executed by the construction of the ditch, becomes in all essentials an easement for such length of time as the use itself may continue. .And in the note to the case in 113 Am. State Reports, 301, 305, it is said that though the authorities are conflicting on the proposition whether a license is revocable at will where the licensee has expended money or labor in the execution of it, the doctrine of the case cited would seem on principle to be free from doubt or criticism.
In the Colorado case of De Graffenried v. Savage, supra, the court say: “Here consent was given; no compensation
The Nebraska case of Arterburn v. Beard, supra, was brought for an injunction against maintaining a dam, ditches and othér parts of an irrigating system upon the plaintiff’s land. The court say: “The contention of plaintiff that the defendants have no valid title either by grant or condemnation proceedings, we think cannot be sustained. As to the tracts over which they were given a parol license by the owners to construct their system, when they expended their time and money in the construction of the dam, ditches, flumes, etc.-, the contract was complete when the work had been performed, and as long as kept up the license was irrevocable. While as to the lands over which there is no proof that the then owner gave permission, and as to which it is shown the defendants took actual possession under a claim of right and over which they have operated for twenty years, the statute of limitations fully protects them against the plain
In an early case in Ohio the revocability of a parol license, when executed, was said not to be an open question in that state, and that a parol license executed has been held to be irrevocable, in numerous instances upon the circuit, at law. And it was held that trespass lies against the owner of the freehold, at law, for any wrongful invasion of the possession of the licensee. (Wilson v. Chalfant, 15 O. 248.)
In the case at bar, the license resulting from the consent of the landowner to the building of the flume does not appear to have been restricted as to time by anything that was said when the consent was given. What the parties contemplated as to the duration of the license can therefore only be determined by reference to its character and purpose. Even where the object of the license is not permanent in its nature, when executed by the expenditure of money or labor so that a revocation before the object is áccomplished would be actual or constructive fraud, it is irrevocable while that condition continues. But when an unlimited enjoyment is contemplated by the parties, the license becomes in such case of indefinite or permanent duration. ' (Rerick v. Kern, supra.) The license was for the construction of a flume to carry water for the irrigation of land, an object usually permanent in its nature, except as it might be dependent upon the water supply; and the plaintiff was one of the owners of a ditch upon the licensor’s land with which the flume was to be connected, and of a right of way for that ditch, as well as a water right. The flume was therefore but a continuation of the ditch to carry the water appropriated by the plaintiff to his land, and it is not unreasonable to assume that an unlimited or permanent occupation and use was within the contemplation. of the parties, such as might lead not only to a prescriptive right in time, but under the conditions mentioned in the authorities cited, would render the license irrevocable.
In view of the power of eminent domain declared by statute, in connection with the other facts in the case, the parol consent given generally without limitation or reservation must be regarded as absolute and as conferring a permanent right, so that the use would be as of right, capable of ripening into a prescriptive title. The facts having been determined by the jury in favor of the showing made by the plaintiff, we conclude as to the legal effect thereof not only that the license was irrevocable, -but that the continued use for the period during which an action might have been brought to dispossess the plaintiff was under a claim of right, giving him a right by prescription to maintain the flume. Concerning the matter of the • expenditure of money and labor on the faith of the license, we have considered not
■ In this state, where law and equity are administered in the same court, and the distinctions between actions at law and suits in equity, and the forms of all such actions and suits formerly existing, are abolished, for which is substituted one form of action called a civil action, there can be no reasonable objection to a recovery of damages in an action like the one here brought by a licensee, where the license would be irrevocable in equity. But whatever the proper rule in such case the title by prescription is sufficient to support the action.
Finding no error in the record the judgment will be affirmed.