7 Utah 477 | Utah | 1891
This is an action brought by plaintiff to recover damages for an alleged trespass by defendants in cutting a water-ditch across plaintiff’s land, and to restrain the defendants from maintaining the ditch, and continuing the alleged trespass. The cause was referred to a referee to try all the issues in the action, both of law and of fact, and report his conclusions of law and judgment thereon. The referee heard the case, and made his report, in which he found the issues in favor of the plaintiff and against the defendant Josiah L. Ferrin, and that plaintiff was entitled to a judgment of six cents damages, and to a perpetual injunction against said defendant, restraining him from maintaining the ditch across the lands of plaintiff, and from conducting water across said land. The referee further reported .that there was no cause of action against the defendant Josiah M. Ferrin. The district court confirmed the report of the referee, and entered judgment accordingly for damages in favor of plaintiff, and forever enjoining the defendant Josiah L. Ferrin from maintaining a water-ditch across the lands of plaintiff. There was a motion for a new trial by the defendant Josiah L. Ferrin, which was overruled, and he brings this appeal from the order overruling the motion for a new trial and from the judgment.
It is contended by counsel for appellant that the findings of facts are unsupported by the evidence. We have carefully read the evidence, which was mostly the oral testimony of witnesses given at the hearing, and is as conflicting as is usual in this class of cases. There being a substantial conflict in the testimony, it is a well-settled rule of this court that it will not set aside the findings as unsupported by the evidence. But counsel for appellant contend that the findings of fact do not support the conclusions of law and judgment. The referee found
The evidence showed that prior to 1883 plaintiff’s land' was government land, and that between May and October, 1883, one Warden, plaintiff’s grantor, entered the land as a homestead, under the land laws of the United States,* and received a patent therefor in August, 1889. That Warden and those under whom he claimed had had possession of the land for some years before he entered it as a homestead. Warden testified that he was living on
The referee must necessarily have found that the defendant Josiah M. Ferrin voluntarily surrendered and abandoned whatever right he may have had to any ditch across the land in question in the fall of 1883, and that, as Warden entered the land between May and October, 1883, there could be no. appropriation of the water or right of way for the ditch across plaintiff’s land without his consent, or that of his grantors. The entry of the land by plaintiff was an appropriation of not only the land, but of the water; and any person entering upon the land thereafter became a trespasser. Sturr v. Beck, 133 U. S. 541, 10 Sup. Ct. Rep. 350. A party holding or claiming an easement in or to real estate may divest himself of the same by a declaration of an intention to no longer use or claim the same, where parties act on Buch declaration as well as by non-user for the statutory period of seven years. The referee found that no repairs had been made on the ditch since 1882, a period of more
The plaintiff purchased the land in 1887, several years after Ferrin had declared his intention of not using the ditch any more, and four years after plaintiff’s grantor, to whom the declaration was made, had filled up the ditch, and sowed it in grass with the knowledge of Fer-rin, and without objection from him, and without any effort on his part to open or use the ditch until the spring' of 1890. We think that, even if the defendant had a right of way across plaintiff’s land in 1883, yet his declaration of intention to no longer use the ditch, and his implied consent for Warden to fill it up and keep it filled, and plaintiff having bought when there was no ditch there, and without notice of any claim of a right of way across the land for a ditch, we think defendant cannot now assert such right against him. We find no error in the record, and the judgment of the district court is affirmed.