198 P. 678 | Idaho | 1921
This action was brought by appellant to enjoin respondents from using irrigation water and interfering with irrigation ditches situate upon lands belonging to the wife of appellant and controlled by him. The irrigation water is represented by shares of capital stock of the Last Chance Ditch Company, a corporation, the certificates of stock being held by appellant as his separate property. On March 17, 1917, appellant and his wife, by warranty deed, conveyed to Sarah C. Flesher, one of the respondents, about an acre of land out of said tract, the deed containing
In their answer as originally filed, respondents set up by way of defense that appellant and his wife sold to them, for a valuable consideration, “one acre of land with the perpetual right to take sufficient water from said ditches and laterals adjacent and near thereto for the irrigation thereof.” During the trial, respondents were granted permission by the court to amend their answer by setting up the following additional matter: “That by mutual mistake of the parties the right to the use of said water for said land was omitted from the deed of conveyance.”
A jury was impaneled by the court to advise on special issues of fact. At the conclusion of the trial, the court filed its decision and entered judgment denying the prayer of the complaint for an injunction. The appeal is from the judgment.
It appears to be conceded that the deed as originally executed did not carry with it any water right as appurtenant to the land.
Appellant’s first specification of error is that the court erred in permitting respondents to amend their answer during the progress of the trial. We think the court did not abuse its discretion in permitting the amendment. (The Mode, Ltd., v. Myers, 30 Ida. 159, 164 Pac. 91.)
The court instructed the jury that the burden rested upon the respondents to prove their affirmative allegations by a preponderance of the evidence. This instruction may indicate the standard adopted in making the subsequent findings, but whether it does or not, we cannot say from a review of the proof offered by respondents that the court did not find the proof of mutual mistake to be clear and convincing. This court would not be justified in holding that the evidence was insufficient to sustain the findings of the court in that respect. The court’s finding in this matter was to the effect that Elsie War dell Hayes, wife of appellant, sold respondents a one-acre tract of land, describing it, for $425, “with a perpetual right to take sufficient water from aforesaid ditches and laterals of the plaintiff adjacent and near thereto for the irrigation of said acre of land.”
The fifth finding is as follows: “That it was the intention of plaintiff and defendants to include in said deed a conveyance of said water right for said land bought by the defendants, but that the same was omitted from the deed.”
The court did not find that the omission was occasioned through mutual mistake of the parties. However, if it was the intention of appellant and respondents to include a description of the water right in the deed, and it was omitted therefrom, it seems to follow inevitably that the omission
We conclude that the relationship of the parties to this action is the same as if the deed had, in addition to the description of the land, contained the following: “With perpetual right to take sufficient water from the ditches and laterals of the grantors adjacent and near thereto for the irrigation of said acre of land.”
Having reached this conclusion, several questions immediately arise. First, does this conveyance "of a water right carry with it a right of way for a ditch over the lands of appellant leading from his laterals to the one-acre tract of land, and if so, where is such ditch to be located? Second, What is a sufficient amount of water for the irrigation of the one-acre tract? Third, does the agreement between the parties call for sufficient water to be furnished in a continuous flow, or could respondents take what'they considered a reasonable irrigation stream whenever they desired to irrigate ?
We make no mention of the matter of maintenance of canals, payment of assessments for upkeep and expenses, or the transfer of shares of stock in the company, for it is conceivable that the grantors might have intended to convey a water right without express obligation on the part of the grantees to pay maintenance charges or upkeep.
Numerous authorities may be found holding that in suits to establish priorities of water rights, a decree which enjoins interference with a “sufficient amount” to irrigate a tract of land, or providing that the party shall be entitled to a “good irrigation stream,” or decrees-containing similar provisions, are void for indefiniteness. (Walsh v. Wallace, 26 Nev. 299, 99 Am. St. 692, 67 Pac. 914; Smith v. Phillips, 6 Utah, 376, 23 Pac. 932; Steinberger v. Meyer, 130 Cal. 156, 62 Pac. 483; Powers v. Perry, 12 Cal. App. 77, 106 Pac.
However, a deed, especially where the grantor has received the consideration, should be construed most strongly against him and be upheld, if it can be done, by a reasonable construction of its terms. Parol testimony may be introduced to explain an ambiguity or uncertainty in a deed. (Hays v. Buzard, 31 Mont. 74, 77 Pac. 423; Bullerdick v. Hermsmeyer, 32 Mont. 541, 81 Pac. 334; Fayter v. North, 30 Utah, 156, 83 Pac. 742, 6 L. R. A., N. S., 410.)
The decree as entered has the effect of permitting respondents to enter upon the lands of appellant and construct a ditch wherever they may choose, and take from appellant’s laterals what they consider a, proper irrigation stream whenever they desire to irrigate their land, provided they use reasonable care and do not permit water to overflow the lands of appellant. We do not think such a decree can be permitted to stand. Having alleged that, through mutual mistake, the deed which they accepted failed to represent the contract between the parties, respondents must show exactly what the contract was and that they had not exceeded their rights under such contract.
This court cannot at this time undertake a construction of the deed, for the proper solution of the questions suggested abovfe requires additional findings. It may be that additional evidence can be adduced in aid of the construction of the deed. When all the evidence has been adduced, unless it is found that the minds of the parties failed to meet upon matters essential to the formation of any contract, the court must make such findings as will result in a determination of the actual rights of the parties.
Appellant also complains of the court’s action in refusing to give certain instructions requested by him, and specifies as error the giving of certain instructions. Since however, the jury was called only in an advisory capacity, and their findings are not binding upon the court and cannot relieve
The judgment will' be reversed and the cause remanded for further proceedings. Costs awarded to appellant.