Reynolds Irr. Dist. v. Sproat

In addition to the facts appearing in the original opinion in this case, it should be stated that the ditch (the use of which is the subject of this suit) was constructed by the plaintiff district in 1933. It heads at, and diverts water from, Warm Springs in section 10, from whence it meanders through sections 9 and 8, and through section 17 where it is piped across Snake River, to the lands of the plaintiff. It crosses two 40 acre subdivisions of defendants' desert entry, the SW 1/4 SW 1/4 of section 9, and SE 1/4 S.E. 1/4 of section 8, and possible crosses a corner of lot 1, section 8. The pipe line, which carries the water across the river, extends along most of the course taken through the SE 1/4 S.E. 1/4 in section 8. At the time this suit was commenced plaintiff was in process of further extending the pipe line in that tract by means of three-foot concrete tile. The remainder of the course on defendants' land consists of open ditch. That part of the course, one mile or more in length, lying between the defendants' land and the head at Warm Springs is open ditch, except where it crosses Warm Springs Creek, from north to south, by means of a syphon. Through the years since 1933, the defendants have diverted water into the ditch some three quarters of a mile above their property, and on the north side of Warm Springs Creek. This water they have diverted from the ditch by means of a headgate and an open cut onto their land in section 8 below the syphon and on the south side of Warm Springs Creek.

The plaintiff brought this suit for an injunction against defendants' use of the ditch, and to quiet its title to the ditch. The decree granting the injunction and quieting title in the plaintiff, refers to the ditch as "said ditch, or any portion thereof." and as "said ditch, and each and every portion thereof." The plaintiff alleges that defendants "have as hereinafter pleaded diverted and threaten to continue to divert into and from that portion of plaintiff's said ditch located in the Southeast Quarter of the Southeast Quarter and Lot 1 of Section 8, Township 1 South, Range 2 West of the Boise Meridian, certain waters for use upon their said lands." This allegation is also incorporated in, and constitutes one of the court's findings of fact. It is the defendants' position that this limits the decree to that part of the ditch specifically described. However, the general course of the entire ditch is described, and reference made to it in other parts of the complaint, as "said ditch." And since defendants in their answer and cross complaint claim a right to use a part of the ditch lying outside their land, as well as that on their land, and since both parties upon the trial treated the issues as embracing all of the ditch used by defendants, the defect in the complaint has been waived.

As to the part of the ditch lying across defendants' property, they contend the decree denies to them their rights as owners of the servient tenement, under the rule adhered to by this court in Tomchak v. Harris, 54 Idaho 448, 32 P.2d 1025. The rehearing was granted upon this proposition. It is asserted by plaintiff, and denied by defendants, that this "theory of defence" was not presented to the trial court, and is urged the first time on appeal.

The defense pleaded was an oral agreement with plaintiff's predecessor by the terms of which the defendants conveyed to plaintiff a right of way in exchange for the right to use the ditch. Plaintiff's objection to the proof offered to establish this agreement was sustained on the ground that it would vary the terms of the written grant, by limiting or restricting the estate granted. The grant dated May 8, 1933, signed, acknowledged and delivered by the defendants is as follows:

"Grant of Right of Way "Know All Men by These Presents:

"That Ellen T. Sproat and Hugh Sproat, her husband of Boise, Idaho, hereinafter called the first parties, for and in consideration of One Dollar and other valuable considerations to them in hand paid by the Reynolds Irrigation District of Owyhee County, Idaho, hereinafter called the second party, the receipt whereof is hereby acknowledged to hereby grant to the second part- a perpetual right of way and easement upon, over and across the Desert Land Entry of the said Ellen T. Sproat consisting of the W 1/2 of SW 1/4 of Sect. 9, SE 1/4 of SE 1/4, and the NW 1/4 of SE 1/4 and Lots 1, 2 and 3 of Sect. 8 in Township 1 S. R. 2 W. in Canyon County, Idaho, for the construction, maintenance and repairs of the ditches, canals, pipe lines and other works in connection with its proposed irrigation system for the lands in the District in accordance with the survey and plans on file in the office of the second party and as the same may be hereafter changed during the course of construction, and we do hereby waive any and all claims for damages that may accrue to either of us by reason of the construction and maintenance of said irrigation works to, over and across said premises."

This document was produced at the trial, and offered in evidence by the plaintiff, and was admitted as "Plf's Ex D." There is nothing in the evidence produced by either party to impair this instrument. Except as further limited by the actual selection of the specific location and the construction of the ditch thereon, it stands as the source and limitation of the plaintiff's rights. In its complaint the plaintiff pleads that it "is the sole owner of a certain ditch" and "that the defendants have not right, title, claim or interest in and to the said ditch and to the right of the use thereof or any part thereof." Plaintiff offered no proof of such an exclusive ownership. But on the contrary by the exhibit "D" plaintiff established that it is not such an exclusive owner.

Where the proof on the part of the plaintiff tends to defeat or limit the relief prayed for, the defendant may take advantage of such proof even though it does not support the theory of the defense pleaded. This is just another way of saying that the plaintiff cannot have judgment for any other or greater relief than its proof entitles it to.

Plaintiff points out that exhibit "D" contains no specific reservation in the defendants. It needs none. That part of an estate not granted is reserved in the grantor. "It is not necessary that the right of the owner of the servient tenement to occupy and use his land be expressly reserved to him; unless expressly conveyed. 9 R.C.L. 797; 19 C.J. 978; Rolens v. City of Hutchinson, 83 Kan. 618, 112 P. 129." Coulsen v. Aberdeen-Springfield Canal Co. 47 Idaho 619, 277 P. 542, 546.

The grant here is of a simple easement to flow water across the land, and a secondary easement for maintenance and repair. All of the rest and residue of appellants' original estate remains in them. As owners of the servient estate they are entitled to sue the land occupied by the ditch in any way and for any purpose not inconsistent with the easement. Coulsen v. Aberdeen-Springfield Canal Co., supra; 28 C.J.S., Easements, § 72, page 750; 17 Am.Jur. 993.

"The determination that appellants had no prescriptive right as such to use the ditch did not, however, dispose of all their rights to the use of the ditch, since they owned the servient tenement, West Coast Power Co. v. Buttram, [54 Idaho 318],31 P.2d 687, and while thereby they had no right to make use of the easement in the way they did or in any manner that would interfere with the dominant estate, Hays v. De Atley, 65 Mont. 558,212 P. 296; 19 C.J. 978; 9 R.C.L 798; 9 Cal.Jur. 953, if the Pyke Roscoe ditch as now constructed is capable of being used by appellants without injury to or interference with respondents' use of the ditch, or appellants may, without interference with or injury to respondents' use of the easement, enlarge or change the same, but without increasing the burden of maintenance or changing respondents' method of use, Colegrove Water Co. v. City of Hollywood, 151 Cal. 425,90 P. 1053, 13 L.R.A., N.S., 904, at appellants' own expense, so that appellants may with proper measuring devices carry their water therein, they have the right so to do." Tomchak v. Harris, supra [54 Idaho 448, 32 P.2d 1026].

It follows that the trial court's decree in so far as it attempts to quiet title in respondent to all rights in the ditch, and to enjoin appellants from making any use thereof whatever, whether such use constitutes ad interference with or injury to respondent's rights, is in error.

It is apparent from the transcript that this case was tried by both of the parties, and the court, upon the theory that the paramount issue is the ownership of the ditch, and that the determination of that issue settles the question of the rights of the parties to its use. The defendants, in their amended answer and cross complaint, plead that plaintiff has another water right, separate from that which it claims from Warm Springs, sufficient for all of its needs up to June first of each year and in some seasons to a later date. That this other water comes from Reynolds Creek on the other side of the river and does not require the use of this ditch. Defendants also question plaintiff's title to the water it takes from Warm Springs through this ditch. These are extraneous issues, and the court properly rejected evidence offered to support them. The court will not step aside from the issue as to the rights of the respective parties to the use of the ditch involved, to determine the water rights of the parties, or the amount of water required to irrigate their respective lands.

However, as to that part of the ditch built on defendants' land, the issues are as to whether or not defendants' use of it constitutes an injury to, or interference with, plaintiff's right under the easement, and, if so, as to whether or not defendants can use it without such injury or interference, by enlarging, or altering, or installing proper devices, at their own expense. Tomchak v. Harris, supra. To determine these questions the court must have evidence of the carrying capacity of the ditch as constructed and used by the plaintiff, and of the amount of water which plaintiff has customarily carried through it. In a case, such as this, where the grant is indefinite as to the particular location, width and character of the ditch to be constructed, the practical construction placed upon it by the parties fixes the limits of the burden imposed upon the servient estate, and is the measure of grantee's rights under the easement. Coulsen v. Aberdeen-Springfield Canal Co., supra. These issues were not determined by the trial court.

Referring now to that part of the ditch lying outside the boundaries of defendants' land, the question is as to whether or not defendants acquired a right, by agreement or otherwise, to use any part thereof. The objection to oral evidence offered by defendants to show what the "other valuable considerations" were, (which are thus alluded to in the grant, exhibit "D"), on the ground that such evidence would impair or limit the grant, could have no possible application to evidence of an agreement to exchange the easement for a right to use the part of the ditch outside of defendants' premises. Obviously the acquisition of a right in that part of the ditch could in no way limit or impair the written grant. Such an agreement would contemplate merely the exchange of an interest in one property for an interest in another. Therefore, in the absence of some other valid objection, the evidence offered so far as affecting that part of the ditch should have been admitted.

The defendants complain of the tiling of portion of the ditch on their land by plaintiff, alleging that it is being done to deprive them to their right to use the ditch. There is not allegation by plaintiff as to the purpose of the tiling, and the cross complaint apparently does not seek to enjoin it. Assuming that it is being installed to prevent waste, or to increase the effective use of water, it is the police of the law to encourage rather than discourage such measures. Big Cottonwood Tanner Ditch Co. v. Moyle, 108 Utah 213,174 P.2d 148, 172 A.L.R. 175; I.C. section 42-101; Coulsen v. Aberdeen-Springfield Canal Co., supra; Basinger v. Taylor,36 Idaho 591, 211 P. 1085. Among the other things mentioned, it is for the court to determine from proper evidence whether defendants can take water out through the tile without injury to, or interference with, plaintiff's rights.

For the reasons stated in this opinion it is deemed best to remand the case to the trial court with instructions to vacate the judgment and decree entered, and to order a new trial. Accordingly, it is so ordered, with cost to appellant.

GIVENS and PORTER, JJ., and SUTPHEN and McDOUGALL, District Judges, concur.