Lavery v. Arnold

Jul 10, 1899

Reporters:: , ,
Before:: Moore

Lead Opinion

Mr. Justice Moore,

after stating the facts, delivered the opinion of the court.

1. The evidence shows that in 1883 George W. McQuinn settled upon the land now owned by plaintiff, extended thereto a neighbor’s ditch, and used the water of Jerry Creek thereupon ; that in 1885 he filled up this extension, constructed another ditch, and appropriated the water of said creek to the irrigation of his land, to which he afterwards obtained a title ; that in 1887 plaintiff became the owner of said tract, and since that time has constantly used a portion of said water in raising crops thereon ; that in 1886 defendant appropriated the waters of said stream in irrigating a tract upon which he settled, and has since continued so to use a portion thereof. From this evidence the court found, and we think rightly, that plaintiff’s predecessor in interest was *86the prior appropriator. Tt is insisted by defendant’s counsel that the evidence fails to show that plaintiff was a citizen ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the United States. But this can be of no consequence, for his predecessor in interest must have been, in order to acquire the title from the general government ; so that the water right, being appurtenant to the land, passed by the conveyance to plaintiff, who is now thé owner of it, unless he has been deprived thereof by estoppel or an adverse user.

2. Defendant’s counsel maintain that plaintiff and his predecessor knowingly and without objection permitted their client to construct ditches and divert the water to the irrigation of his land, and that, relying upon such acquiescence, he has improved his premises, which would be rendered valueless without the use of the water ; and, this being so, plaintiff is estopped to question his right to continue such use. It has been held in this state that a parol license to do some act upon the servient estate cannot be revoked after the licensee, relying upon the faith thereof, has expended money or performed labor in making valuable and permanent improvements upon real property : Coffman v. Robbins, 8 Or. 278; Huston v. Bybee, 17 Or. 140 (2 L. R. A. 568, 20 Pac. 51); Combs v. Slayton, 19 Or. 99 (26 Pac. 661); Curtis v. La Grande Water Co. 20 Or. 34 (10 L. R. A. 404, 23 Pac. 808, and 25 Pac. 378); McBroom v. Thompson, 25 Or. 559 (42 Am. St. Rep. 806, 37 Pac. 57); Garrett v. Bishop, 27 Or. 349 (41 Pac. 10). But such license must result from some consideration paid by the licensee or some benefit accruing to the licensor, otherwise a person entitled to the use of water might be deprived thereof by seeing a neighbor constructing a ditch, making, no objection thereto until the water was diverted, under an honest belief that he intended to use only the surplus. The parol license sanctioned and upheld by this court is something more *87than a passive acquiescence, and hence defendant can claim no right to the use of the water by this means.

3. The evidence relating to defendant’s diversion and appropriation of a part, at least, of the water of Jerry Creek embraces every element of an adverse ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍user ; and the only question to be considered is whether it has continued for such a period as to bar a recovery by plaintiff. This suit having been commenced June 26, 1896, defendant’s adverse use, to defeat plaintiff’s right, must have been inaugurated ten years prior thereto. The evidence in relation to the exact date when the water was applied by the defendant to a beneficial use is quite vague. He testifies that on April 1, 1886, he took possession of a forty-acre tract of state school land, now claimed by him, but he could not say when he did the first work thereon ; that one Long took possession of a tract of government land June 1, 1886, and the next year cultivated a garden thereon, irrigating it by water taken from Jerry Creek; that Long transferred his interest in this tract to him ; and that he commenced to cultivate it in 1888. After detailing the character and value of his improvements upon these tracts, he was asked and answered the following questions in relation thereto : “Q,. You may state if you have irrigated the same during the times you have mentioned. A. I have. Q. From what creek? A. From Jerry Creek. Q,. By what means? A. By means of a ditch and dam in the creek — a ditch leading from the creek. . Q. When did you first make this ditch and dam and make an appropriation of the waters of Jerry Creek? A. I took out the first ditch from Jerry Creek in April, 1886.” It will be seen that the defendant does not state that he appropriated the water to the school land in April, 1886, unless the appropriation can be inferred from his answer‘to the question, ‘‘You may state if you have irrigated the same during the times *88you have mentioned.” The word “same” refers to both tracts of land, and “times” to April 1, 1886, when defendant took possession of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the school land, and June 1 of that year, when Long entered upon the other tract. There is no evidence tending to show that prior to June 26, 1886, Long appropriated the water to his land, so that defendant could tack his user to his predecessor’s use, and thus complete the statutory period of limitation ; and hence defendant’s right must be limited to the forty-acre tract. The construction of the ditch in April, 1886, does not show that his adverse user began at that date, because, not being a prior appropriator, his right only began with the date the water was applied to a beneficial use: Senior v. Anderson, 115 Cal. 496 (47 Pac. 454). Several witnesses testified that defendant applied the water to the school land in the spring of 1886, and as the spring ended with May 31, it might seem that this was sufficient to bar plaintiff’s right. But the defendant having alleged an adverse user as the foundation of his claim, the burden was upon him conclusively to show that it was inaugurated prior to June 26, 1886, which we think he failed to do. His answer, “I took out the first ditch from Jerry Creek in April, 1886,” when the question embraced the appropriation as well, would seem to contradict, by inference at least, the answer to the question, “You may state if you have irrigated the same during the times you have mentioned.” He may have thought that his appropriation related to the time when he constructed the ditch, and, if this be so, it would explain his answer that he had irrigated the land since April 1, 1886. Having testified that he could not state when he began work on the forty-acre tract, it is impossible to believe that he could have appropriated the water on the day on which he took possession of the land. The defendant having failed in this respect, the finding of *89the court that he has.no title to the use of the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍water is correct so far as it relates to the use of the quantity awarded plaintiff. The evidence shows that from twenty to sixty inches of water flow in Jerry Creek, except when the snow is melting, at which time it carries several hundred inches. Plaintiff’s cultivated land would require, for its proper irrigation, the quantity of water which the court awarded him; and, this being so, it follows that the decree is affirmed. Affirmed.

Rehearing

On Petition for Rehearing.

Mr. Justice Moore

delivered the opinion.

4. It is claimed by defendant’s counsel in their petition for a rehearing of this cause that the reply admits the appropriation and adverse use of the waters of Jerry Creek by defendant for more than ten years prior to the commencement‘of the suit, and that this court erred in finding that such use was for a shorter period. The complaint alleges that plaintiff’s predecessor in interest made a prior appropriation of the waters of said creek in 1883, and that in 1890 the defendant unlawfully diverted the waters thereof, to plaintiff’s damage, etc. The answer, after denying the material allegations of the complaint, avers that defendant, on April 1, 1886, made an appropriation of water therefrom, which he has since used adversely to plaintiff in irrigating his land, and that plaintiff and his predecessors in interest have ever since said date acquiesced therein, thereby encouraging him to improve and cultivate his premises, and therefore plaintiff should not now be permitted to allege that he was the owner and entitled to the use of said water. The reply denies “that said defendant or his predecessors in interest have now, or ever had at any time or date whatever, exclusive use of the waters of Jerry Creek, or any *90other use whatever, to irrigate said lands or any lands whatever, or for any purpose whatever, or otherwise or at all, save and except under the protest of this plaintiff.” It is argued that this is an admission that defendant used the waters ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of said stream more than ten years prior to the commencement of the suit, against plaintiff’s protest, and, as the appropriation, notwithstanding such protest, constituted an adverse user, the court erred in affirming the decree. The complaint and reply, when not repugnant, should be read together, to determine the intent of the pleader, and, when thus read and fairly construed, it is evident that the use of the water by defendant over plaintiff’s protest was after 1890. As we view the reply, the allegation of protest against the use of the water is to show that plaintiff did not acquiesce therein as alleged, or encourage the defendant in improving his premises by such use, rather than that the defendant had used the water more than ten years against plaintiff’s protest. Defendant having alleged an adverse user, the burden was upon him to show when the water was applied to a beneficial use, and, he having failed in this respect, the petition is denied. Rehearing Denied.