Summary
In Taylor, after noting the existence of the presumption, the Court ruled that there was "not sufficient evidence of parol license to overcome this presumption."
Summary of this case from Cluff v. Bonner CountyOpinion
No. 5545.
January 9, 1931.
APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. Wm. A. Babcock, Judge.
Action seeking easement across lands. Judgment for defendant. Reversed and remanded.
James R. Bothwell and W. Orr Chapman, for Appellant.
A ditch or ditch right of way is real property, and the right to conduct water upon and across the land of another is an easement which may be acquired by prescription, the period of adverse user or possession being five years. (C. S., secs. 6595-6603, incl.; Ada County Farmers' Irr. Co. v. Farmers' Canal Co., 5 Idaho 793, 51 P. 990, 40 L.R.A. 485; Swank v. Sweetwater Irr. Co., etc., 15 Idaho 353, 98 P. 297; Gorrie v. Weiser Irr. Dist., 28 Idaho 248, 153 P. 561; Beasley v. Engstrom, 31 Idaho 14, 168 P. 1145; Keiler v. McDonald, 37 Idaho 573-577, 218 P. 365; Bower v. Kollemeyer, 31 Idaho 712, 175 P. 964.)
Where a licensee has entered under a parol license and has expended money or its equivalent in labor, in the execution of the license, such as constructing a ditch under a parol license, the license becomes irrevocable, and is in all essentials an easement. (26 Cal. Jur., sec. 362, p. 159; Stoner v. Zucker, 148 Cal. 516, 113 Am. St. 301, 7 Ann. Cas. 704, 83 P. 808; Rerick v. Kern, 14 Serg. R. (Pa) 267, 16 Am. Dec. 497; Harsin v. Pioneer Irr. Dist., 45 Idaho 369, 263 Pac. 988; Crescent Canal Co. v. Montgomery, 143 Cal. 248, 76 Pac. 1032, 65 L.R.A. 940; Imperial Water Co. v. Wores, 29 Cal.App. 253, 155 P. 124.)
Where an open and uninterrupted use of an easement for sufficient length of time to create the presumption of grant is shown, the burden is upon the party alleging that the use has been by virtue of a license or permission, to prove that fact by affirmative evidence. (Jones on Easements, sec. 186; Fleming v. Howard, 150 Cal. 28, 87 P. 908; Last Chance Ditch Co. v. Sawyer, 35 Idaho 61, 204 P. 654.)
E.M. Wolfe, for Respondent.
Not every use of a ditch over another's land for many years is an easement. No use of a ditch over another's land for any length of time is an easement, unless such use originated under claim and color of title. (See Farmers' Cooperative Irr. Co. v. Alsager, 47 Idaho 555, 277 P. 430.)
Expending such money as is necessary to construct a ditch is not sufficient consideration to change a license into an easement. ( Bower v. Kollmeyer, 31 Idaho 712, 175 P. 964; McReynolds v. Harrigfeld, 26 Idaho 26, 140 P. 1096; MacKinnon v. Black Pine Min. Co., 32 Idaho 228, 179 P. 951; and especially see Great Falls Waterworks v. Great Northern Ry. Co., 21 Mont. 487, 54 P. 963.)
An open and uninterrupted use of a ditch for more than five years is not necessarily an easement and does not give title to the ditch right of way. (See Bower v. Kollmeyer, supra; Farmers' Cooperative Irr. Co. v. Alsager, supra; McReynolds v. Harrigfeld, supra; McKinnon v. Black Pine Min. Co., supra; Howes v. Barmon, 11 Idaho 64, 114 Am. St. 255, 81 P. 48, 69 L.R.A. 568.)
Respondent's predecessors in interest acquired the SW.1/4 of the NW.1/4 of section 3 in 1910 and the SE.1/4 of the NE.1/4 of section 4 in 1908, all in the same township. Appellant owns the two forties adjoining on the north and his predecessors in interest in 1908 constructed a ditch from east to west across the northern portion of respondent's two forties. When constructed, the western portion of the ditch at least, was south of the east and west line fence between the two adjoining properties. Later it was determined that the fence was at the west end, some twelve feet south of the true line, and when the fence was replaced on the correct line, practically all of the ditch lay south of the fence. In 1928 the respondent plowed up the ditch and this action was instituted by appellant to restrain respondent's interference with appellant's use of the ditch and to declare an easement for the ditch right of way on appellant's land based on prescription.
Respondent contended by his answer that appellant possessed only a revocable license. The court awarded judgment in favor of appellant as to that portion of the ditch lying in the SW.1/4 of the NW.1/4 of section 3, on the theory that when the ditch was constructed that forty was government land, but gave judgment in favor of respondent as to the portion of the ditch in the SE.1/4 of the NE.1/4 of section 4, on a finding that the ditch was constructed with the consent of the then owner and that appellant had only a parol license which was revocable.
The evidence is without conflict that the ditch was used by appellant uninterruptedly and continuously for more than the prescriptive period, which raises a presumption that such use was adverse and under claim of right (19 C. J. 959); and there is not sufficient evidence of parol license to overcome this presumption or justify the above finding of the court. (1 Jones' Commentaries on Evidence, 2d ed., sec. 41, note 11.)
Judgment is reversed and the cause remanded, with instructions to enter judgment for the appellant.
Costs to appellant.
Lee, C.J., Varian and McNaughton, JJ., and Brinck, D.J., concur.
Petition for rehearing denied.