118 P. 501 | Idaho | 1911
A motion was made in this case to strike the statement from the transcript and to dismiss the appeal,
This appeal involves a water right of seven and one-half inches of water from what is now known as the Nampa and Meridian Irrigation District canal. Some twenty years ago the respondent herein acquired an eighty-acre tract of land under the Ridenbaugh canal in Ada county, and at the same time secured a water right to the extent of thirty inches from the Ridenbaugh canal for the irrigation of this eighty acres. With this water right- and some waste water which he was able to collect he reclaimed the entire tract of eighty acres and cultivated the same until the year 1901, when he sold twenty acres of it to his daughter, Lydia M. Irland. The deed to his daughter appears to have been in the usual form conveying the land “together with appurtenances,” but contained no specific mention of any water right. The respondent continued to cultivate and irrigate his remaining sixty acres, and the daughter continued the cultivation and irrigation of the twenty purchased by her, the same as had been done during the previous years. During the time the daughter owned the twenty acres, the respondent paid the water rents for the entire eighty acres and took receipts therefor, the same as he had always done, and no controversy arose over the water right. In 1905 the Nampa and Meridian Irrigation District was organized and acquired the Ridenbaugh canal system. The district thereafter proceeded in conformity with the statute to issue irrigation district bonds and caused the benefits to be apportioned and assessed in conformity with law. In doing so, the district assessed benefits for twenty-two and one-half inches of water against the sixty-
There is no substantial conflict or dispute over the material facts in this case. What difference there is, is of an immaterial nature. The question confronting us on this appeal is merely one of applying the law to the undisputed facts of the case. In the first place, it is well established that a water right is an appurtenance to the land on which it has been used and will pass by conveyance of the land. (Hall v. Blackman, 8 Ida. 272, 68 Pac. 19.) A division of the land would divide the appurtenant water right in the same proportion as it divided the land. (Senior v. Anderson, 138 Cal. 716, 72 Pac. 349.) In this case the twenty acres of land was deeded together with the appurtenances. This conveyance would carry with it the water right appurtenant to the land at the
There is some conflict in the evidence given by Lydiá M. Irland and Guy Matthews as to what was said between them or the understanding had between them with reference to the water right at the time she conveyed to Matthews. This controversy has but 'little weight on the question, however, when it is remembered that she had been using the water all along and was doing so at the time the conveyance was made and that the water right was then appurtenant to the land. This was obvious at the time of her sale to Matthews. Under this state of facts, it seems to us that section 3111 of the Rev. Codes of this state would intervene for the protection of her grantee. That section reads as follows:
“A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred, in the same manner and to the same extent as such property was obviously and permanently used by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed.”
This section of our statute seems to be identical with sec. 1104 of the Civil Code of California. In Pendola v. Ramm, 138 Cal. 517, 71 Pac. 624, the supreme court of California dealt with a somewhat similar question, and applied the provisions of see. 1104 of the Civil Code of that state, and held that where a party mortgages a tract of land on vthich his water right in part had been used in conjunction with other lands, he mortgaged the right to continue the use thereof on such land, and that a subsequent foreclosure deed would operate to create an easement in favor of the purchaser in the mortgagor’s canal and’water right to the extent that it had previously been used in irrigating the tract of land. Paragraph 2 of the syllabus to that case says:
“The right to the water of a canal to the same extent as •used by the mortgagor was appurtenant to the mortgaged tract, and passed with the land under the mortgage under Civ. Code, sec. 1104, providing that a transfer of real prop*201 erty creates in favor thereof an easement to use other real property of the grantor in the same manner and to the same extent as such property was obviously and permanently used by him.”
Lydia M. Irland does not now claim that she reserved the water right to herself, either in the conveyance or by oral agreement. She rather claims now that it never did belong to the land and that she had never purchased it from her father. These assertions are wholly disproven by the fact that she had been using the water all these years on the land and that it had, as a matter of fact, become appurtenant to the land under the provisions both of the constitution and statute. She did not attempt to segregate this appurtenance from the land and divert and apply it to any other land. Respondent does not claim to have acquired it either by conveyance from Lydia M. Irland or by subsequent application and use upon his own tract of land. He rather claims that he never, in the first place, conveyed it to his daughter, and that it has always been his property and appurtenant to his sixty acres of land. This contention rests purely in theory, and is entirely contradicted by the actual fact of the use and application of the water.
A great deal of argument has been made over the effect of the decree confirming the bond issue and the assessment of benefits made by the district. It is claimed by appellant that this is res adjudicata, both as to the extent of the amount of benefits assessed against the several tracts of land and likewise as to the water rights appurtenant to eaeh tract. There can be no question but that the decree of confirmation is res adjudicata as to the assessment of benefits. (Knowles v. New Sweden Irr. Dist., 16 Ida. 217, 101 Pac. 81; Oregon Short Line Ry. Co. v. Pioneer Irr. Dist., 16 Ida. 580, 102 Pac. 904.) It is doubtful, however, if the decree of confirmation would amount to res adjudicata as to a water right or the amount of water appurtenant to any particular tract of land in a controversy arising between various water users over the right and priority of an appropriation made for the use of their respective tracts of land. The trial court undertook to
We therefore conclude that the judgment in this case must be reversed, and it is so ordered. The cause is hereby remanded, with direction to the trial court to enter a decree in favor of the appellants for seven and one-half inches of water appurtenant to the twenty-acre tract of land owned by them, and a decree in favor of the respondent for twenty-two and one-half inches of water appurtenant to his sixty-acre tract. Costs of this appeal will be taxed against the respondent.
Petition for rehearing denied.