Koon v. Empey

*9 WM. E. LEE, J. Some years prior to 1905 appellant Olive acquired from one Curd title to certain lands along the South Fork of the Snake River in what is now Madison county, together with certain water rights, including the three quarter-sections he conveyed in 1905 to respondent Koon and one Graves, respondent’s grantor. In February, 1905, appellant Olive filed an answer and cross-complaint in the ease of Rexburg Irrigation Company et al. v. Teton Irrigation Canal Company et al., pending in the district court in and for Fremont county; and on December 16, 1910, a decree was made and filed in said suit, in which there was decreed to appellant Olive a right to 600 inches of water, with a priority date of June 1, 1889, from the Bannock-Jim Slough, and a right to 160' inches of water, with a priority date of May 1, 1905, from the same stream, for the lands now owned by respondent and two additional quarter-sections. On December 20, 1905, appellant Olive conveyed to respondent and to respondent’s grantor, one Graves, the three quarter-sections of land now owned by respondent. The evidence showed that the water was necessary for the successful growing of crops on respondent’s lands. The lands were cultivated by appellant Olive and his predecessors, all of whom applied water for the growing of crops. In 1918, appellant represented to the State Engineer that he was the owner of the right to the 600 inches of water, which is the basis of this litigation; that the lands upon which the water had been applied had been largely washed away and were no longer profitable for irrigation, and praying for the issuance of a certificate authorizing him to transfer the water and conduct it through the Harrison Canal for the irrigation of other lands. After one *10 certificate had been issued and canceled, the Department of Reclamation issued to appellant a certificate, permitting the transfer of such of the 12 second-feet of water to the Harrison Canal Company “as may have been owned by O. H. Olive on the date of his transfer .... to the Harrison Canal Company.” Thereafter the watermaster, Empey, diverted 12 second-feet of water into the Harrison Canal. This action was instituted to quiet respondent’s title to the 600 inches of water and to enjoin the watermaster from delivering such water to anyone else. The appellants denied the allegations of the complaint and affirmatively alleged that title to the water right was acquired by appellant Olive by adverse possession. The deeds by which Olive conveyed the lands now owned by respondent did not specifically mention any water, but they contain the clause: “Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining ....,” which respondent contends effected the transfer of all the water appurtenant to the land. On the contrary, appellants contend that when the deeds were executed and delivered, the parties agreed that the water appurtenant to the land was to be retained by appellant Olive; and appellants attempted to establish such reservation by parol. The court refused to permit the introduction of oral evidence for such purpose, and the action of the court is assigned as error. The language of the deeds is plain and unambiguous. From the deeds the intent of the grantor to convey the lands, together with the appurtenances, plainly appears. There was no allegation of fraud or mistake in the execution of the deeds, and no fraud or mistake is claimed. It is an elementary rule for the construction of deeds, the language of which is plain and unambiguous, that, in the absence of fraud or mistake, the intention of the parties must be ascertained from the instrument itself. (8 R. C. L. 1039, see. 95.) Parol evidence is not admissible for such purpose. (Owen v. Henderson, 16 Wash. 39, 58 Am. St. 17, 47 Pac. 215; 10 R. C. L., “Evidence,” 1023, sec. 214, and cases cited under note 17; Tyson v. Neill, 8 Ida. 603, 70 Pac. *11 790; Beebe v. Pioneer Bank & Trust Co., 34 Ida. 385, 201 Pac. 717; Donnell v. Humphreys, 1 Mont. 518; Doe v. Porter, 3 Ark. 18, 36 Am. Dec. 455.) It is where the language'of a deed is ambiguous that the intent of the parties may be ascertained from the surrounding circumstances. (18 C. J. 260, sec. 217.) Having been used to irrigate the lands now owned by respondent in 1905, and several years prior, the water became appurtenant to the land; for there can be no question that a water right becomes appurtenant to the land to which it has been applied and upon which the water has been used for irrigation (Russell v. Irish, 20 Ida. 194, 118 Pac. 501; Paddock v. Clark, 22 Ida. 498, 126 Pac. 1053); and, in the absence of any reservation to the contrary, a deed to land effects a transfer of such water and water rights as are appurtenant to the land when the conveyance is made, where the deed contains the usual “appurtenance” clause. In Paddock v. Clark, 22 Ida. 498, 126 Pac. 1053, this court stated the law as follows, in the syllabus: “Where it is shown that a water right is acquired by the owner of land by deed of conveyance, and that such water right after purchase is used by the purchaser upon the land for a beneficial use, such water right becomes an appurtenance to such land, and where after such use such land is conveyed, and in the deed of conveyance said land is described, and the deed further provides ‘together with appurtenances,’ such deed of conveyance not only conveys the land, but the water rights appurtenant to said land.” Mr. Kinney, in his work on Irrigation and Water Eights, at page 1796, second edition, says: “Where there is a sale of a certain tract of land by a valid deed and in which, after describing the land, there is the expression, ‘together with all and singular the appurtenances thereunto belonging and appertaining,’ or one of similar purport, using the word ‘appurtenances,’ unless there is a specific reservation of the water right, which is in fact an appurtenance to the land, the water right will *12 pass with the transfer of the land the same as though it has been specifically mentioned in the deed. This follows the regular and well-settled rule of law as to the transfer of the land with ‘appurtenances,’ and the water right will pass with the land with the houses, barns, fences, and other appurtenances. ’ ’ The diversions made by both respondent and Olive were 'from the Bannock-Jim Slough, which seems to be an old channel of the river. In 1905, water flowed from the river into the slough above the lands owned by respondent and appellant Olive and flowed back into the river some distance below them. Some years after 1905, the county commissioners of Madison county constructed a dam at the head of the slough, but water, from percolation or other causes, continued to flow in the slough. The conveyance from Curd as well as the court decree referred to rights in and to the waters of Bannock-Jim Slough. At the time of and prior to the transfer to respondent and Graves, Olive was diverting water from the slough and using it by means of ditches, etc., for the surface irrigation of the lands deeded respondent and Graves. Since 1905, respondent has continued to cultivate the lands purchased from Olive but has applied the water by means of subirrigation, a system which is said to be common in that immediate vicinity. Olive claims that from 1908 to 1913 inclusive, he used 760 inches of decreed water for the irrigation of about one hundred acres of cultivated land and about fifty acres of pasture, on his “Olive Home Ranch,” which lies above respondent’s land, by a system of subirrigation. The water was diverted from the Bannock-Jim Slough. Olive testified that 600 inches of water, with which he so irrigated his “Olive Home Ranch,” was the 600 inches with which this action is concerned; and he claims title to the 600 inches of water by adverse possession. Upon cross-examination Olive admitted that he did not know how much water he used, and that his system of sub-irrigation was the same as that used by respondent. During all the time Olive claims to have been using water adversely *13 to respondent, respondent was irrigating Ms land in the same manner and taking his water from the same stream, the Bannock-Jim Slough. Respondent’s water supply, however, does not appear to have been diminished. Since respondent was entitled to certain waters of Bannock-Jim Slough and proceeded to apply such water to his land by means of subirrigation, it is difficult to understand how Olive, by a similar process of subirrigation could acquire title to the water right of respondent, by adverse possession. Olive does not here claim any unappropriated waters of Bannock-Jim Slough. His contention is that he acquired this particular right by adverse possession, by using an un-ascertained (and probably an unascertainable) quantity- of water from the slough in the same manner and at the same time that it was so used by respondent. One cannot thus acquire title to real property. The use of the water by Olive was not adverse to respondent. There is no evidence of any claim or intention, in the use of the water by Olive, that was inconsistent with respondent’s rights. This court held in Bower v. Kollmeyer, 31 Ida. 712, 175 Pac. 964, that, “Where there is no proof showing that actual occupation was accompanied by a claim, or an intention, inconsistent with' the title of the owner, an adverse claim based upon such occupation cannot be allowed.” Appellant complains of the refusal of the court to make certain findings. Findings are ordinarily required on all material issues, but the trial court is not required to make findings on issues not sustained by the evidence and upon questions unnecessary to the determination of the cause. The issues upon which findings were requested were not necessary to the determination of this cause by the trial court, and the court did not err in its refusal to make the requested findings. (Brown v. Macey, 13 Ida. 451, 90 Pac. 339; Edmunds on v. Taylor, 17 Ida. 618, 106 Pac. 991; Montpelier M. Co. v. City of Montpelier, 19 Ida. 212, 113 Pac. 741; Fouch v. Bates, 18 Ida. 374, 110 Pac. 265; Pleasants v. Henry, 36 Ida. 728, 213 Pac. 565.) *14 Costs in the district court were taxed against appellants Olive and Decamp, and respondent will recover from them his costs on appeal. Affirmed. McCarthy, C. J., and Dunn, J., concur.