208 P. 844 | Idaho | 1922
This action was commenced to enforce specific performance of an agreement to convey a perpetual right to the use of the waters of a spring on respondents’ premises, with a right to use fifty feet square upon which said spring is situated, and an eight-foot right of way over respondents’ land extending from said spring to the lands of appellant, along the pipe-line laid by appellant to carry said water, with a right of ingress and egress over respondents’ lands, and the use of said lands for the purpose of repairing and improving the facilities for the use of - said water,-and an injunction perpetually restraining respondent and all other persons'from in any manner interfering with the right of appellant to the use of said water, and to quiet appellants’ title to said use.
The cause was tried by the court, and it found that in April, 1911, the defendant John M. Praisewater, respondent herein, agreed to sell to plaintiff, appellant herein, the exclusive right to use the water of that certain spring situate on the NE. 14 of Sec. 6, T. 43 N., K.. 4 W., B. M., Benewah county, Idaho, with the right to pass over and use fifty feet square in the center of which said spring is situated, and the right to pass over and use a tract of land eight feet wide and about five hundred feet long, extending from said spring in a southeasterly direction to appellant’s land, which adjoins respondents’ land on the east; that said parties agreed that appellant should have the permanent and continual use of the water from said spring and the permanent and continual right to pass over and around the same -on said fifty-foot square of land, and the tract eight feet wide extending about five hundred feet southeasterly from said spring to appellant’s land, and gave appellant a permanent, continuous and exclusive right of ingress and egress from
From these findings the court concluded that appellant had not obtained title by adverse possession, on account of any of the transactions mentioned, and that the agreement made between appellant and respondent was contrary to law and the statutes of the United States, in that it was an agreement by a homestead entryman made prior to final proof or receipt of patent to convey an interest in a homestead, and was unenforceable against respondents or either of them, and entered a decree dismissing appellant’s action, from which judgment this appeal is taken. Therefore this appeal presents the single question of law: Under the facts found by. the court, which are fully sustained by the evidence, can an entryman upon a government homestead convey to a stranger to the entry a right to the use of the water of a spring situate wholly upon such entry, with a right of way over the premises, to develop and put to a beneficial use upon other lands, the water of such spring?
Respondent contends that his agreement to convey a right to the use of the water of this spring, with the necessary right of way for its use elsewhere, and all subsequent proceedings which he thereafter permitted and aided appellant to do in order to initiate and perfect appellant’s right to the use of the water of this spring and to conduct the same over respondent’s homestead to appellant’s land and thereby apply the same to beneficial use, is in contravention of U. S. Rev. Stats., sec. 2290, which requires the applicant for a homestead entry, among other things, to make affidavit that: “Such application is honestly and in good faith made for the purpose of actual settlement and cultivation, and not for the benefit of any other person, persons or corporation; . . . . that he or she has not directly or indirectly made, and will not make,' any agreement or contract in any way or manner, with any person or persons, corporation or syndicate whatsoever, by which the title which he or she might acquire from the government of the United States should inure, in whole or in part, to the benefit of any person, ex
We think, however, that there is a well-defined distinction between the interest attempted to be conveyed in those cases, and that in the one at bar. In actions where the federal courts have denied the right to compel specific performance, the conveyance has been either an absolute transfer of the entire interest of the entryman in a part of his homestead entry, or a conveyance of such a qualified interest as might become absolute. Cascade Public Service Corp. v. Railsback,
Since Anderson v. Carkins, supra, was decided, in 1890, Congress has modified U. S. Rev. Stats., sec. 2288, upon which it was in part founded. As the statute then stood, it limited the conveyances which a homesteader might make to: “Any portion of his pre-emption or homestead for church, cemetery or school purposes, or for the right of way of railroads across such pre-emption or homestead.”
But the amendments of act of March 3, 1891, and act of March 3, 1905, extended the statute to include additional purposes, and the section now reads: “Any bona fide settler under the pre-emption, homestead or other settlement law shall have the right to transfer, by warranty against his own acts, for church, cemetery or school purposes, or for the right of way of railroads, telegraph, telephones, canals, reservoirs, or ditches, for irrigation or drainage across it; and the transfer for such public purposes shall in no way vitiate the right to complete and perfect the title to his claim.”
The reservation now contained in all patents to public lands under any of the several public entry statutes of the government is as follows: “Subject to any vested and accrued water rights for mining, agricultural, manufacturing or other purposes and rights to ditches and reservoirs used in connection with such water rights as may be recognized by the local laws, customs and decisions of courts, etc.”
H. S. Rev. Stats., sec. 2339, reads: “Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing or other purposes, have vested
In Jennison v. Kirk, 98 U. S. 453, 25 L. ed. 240, it is held that this last provision confers no additional rights upon owners of ditches subsequently constructed, but merely confirms rights previously acquired and recognized by local customs, laws, and decisions. of courts, and provides that whenever thereafter any person, in the construction of any ditch or canal, injures or damages the possession of a settler on the public land, the settler shall be compensated for such damage. In the instant case, the parties mutually agreed as to the compensation for the right to the use of this water and the right to run it across respondent’s land.
In view of these provisions of the federal statute, and of the general policy of the government, which has been to aid the states and the citizens thereof in making the largest possible use of the public water of such state for beneficial purposes, we conclude that it was not the purpose of Congress in passing the restrictive measures, contained in U. S. Rev. Stats., secs. 2290 and 2291, to prohibit an entryman from agreeing to permit the use of his entry for the purposes of developing water upon or conveying it across such entry for beneficial purposes. A contrary rule might frequently result in creating an impassable barrier between an important source of public water and the place where it might be used.
Considering this question as to whether under the laws of this state this spring was a source from which a valid water appropriation might be made, and as to whether or not appellant has perfected a valid appropriation under the
C. S., sec. 5556, makes all the waters of the state, when flowing in their natural channels, including the waters of all natural springs and lakes within the boundaries of the state, the property of this state. This provision is in harmony with art. 15, sec. 1, of the constitution. (Adams v. Twin Falls-Oakley Land & Water Co., 29 Ida. 357, 161 Pac. 322.)
C. S., sec. '5562, provides that: “All ditches now constructed or -which may hereafter be constructed for the purpose of utilizing seepage, waste or spring water of the state, shall be governed by the same laws relating to priority of right as those ditches, canals and conduits constructed for the purpose of utilizing the waters of running streams.”
C. S., sec. 5558, provides that: “The right to the use of the waters of rivers, streams, lakes, springs and of subterranean waters, may be acquired by appropriation.”
C. S., sec. 5569, provides the method for regulating the use of public waters, and establishing by direct means the property right to such use, by any person or corporation hereafter intending to acquire the right to the beneficial use of the waters of any of the natural streams, springs or seepage waters, etc.
It is clear from these provisions of the statute that the water of natural springs is public water, and is subject to a valid appropriation for a beneficial use. (Le Quime v. Chambers, 15 Ida. 405, 98 Pac. 415, 21 L. R. A., N. S., 76; Youngs v. Regan, 20 Ida. 275, 118 Pac. 499; Rabido v. Furey, 33 Ida. 56, 190 Pac. 73.)
The provision of C. S., see. 5556, which declares all the waters of the state, when flowing in their natural channels, including the waters of all springs and lakes within the boundaries of the state, to be the property of the state, being in harmony with art. 15, sec. 1, of the constitution, this right of the state was recognized by the act of Congress admitting the state into the Union, which thereby confirmed this provision of the constitution the people of the state had formed, and consented to such appropriation by
The trial court finds that appellant, for value, purchased from respondent the right to the use of the water .of this spring in question, that with the active assistance and cooperation of respondent the spring was further developed by placing therein two sets of boxing four by four by six feet .deep, and by means of an underground pipe this water was conveyed to appellant’s premises, and that he used the same continuously and uninterruptedly, without his right to do so being questioned, for a period of more than eight years. Without respondent’s consent, appellant could not have entered upon his premises and initiated a valid appropriation to this spring, which did not flow sufficient water to create a natural stream that ran beyond the lines of respondent’s premises. But appellant, after having.acquired the right to develop this spring, and after having dedicated the waters of such spring to the highest beneficial use known to the law, that is, domestic use, his continued and uninterrupted use of this water for a period of more than five years constitutes a valid appropriation, and gives him a right to the use of the water as against respondent, and constitutes a valid appropriation of the water of this spring as against all other persons. (Hall v. Blackman, 8 Ida. 272, 68 Pac. 19; Sand Point Water etc. Co. v. Panhandle Dev. Co., 11 Ida. 405, 83 Pac. 347; Nielson v. Parker, 19 Ida. 727, 115 Pac. 488; Furey v. Taylor, 22 Ida. 605, 127 Pac. 676; Crane Falls Power etc. Co. v. Snake River Irr. Co., 24 Ida. 63, 133 Pac. 655.)
Le Quime v. Chambers, supra, approves the rule announced in Maffet v. Quine, 93 Fed. 347, wherein it is said: “When land included in a railroad grant reverts to the government, a subsequent patentee under the homestead laws takes the title subject to the right of way for a ditch or canal over it which was- acquired prior to his entry; and it is immaterial whether the appropriation was made prior or subsequent to the time the government was reinvested with title. ’ ’ _
In the Le Quime-rChambers case, this court held that where seepage and percolating waters gravitate to and collect at a definite point in sufficient volume to be known and designated as a spring, and are found upon public domain, they are subject to location and appropriation for any useful or beneficial purpose, and are therefore protected and reserved from future disposition under the act of Congress, U. S. Rev. Stats., sec. 2339, citing in support thereof Katz v. Walkinshaw, 141 Cal. 116, 99 Am. St. 35, 70 Pac. 663, 64 L. R. A. 236, and opinion in same case on rehearing, 74 Pac. 766; Cohen v. La Canada Land & W. Co., 142 Cal. 437, 76 Pac. 47; Sullivan v. Northern Spy Mining Co., 11 Utah, 438, 40 Pac. 709, 30 L. R. A. 186.
It follows from what has been said that the judgment of the court below should be reversed and the cause remanded, with instructions to the trial court to enter a decree as prayed for in appellant’s complaint, and it is so ordered. Costs awarded to appellant.