Brown v. Newell

AILSHIE, J. (After stating the facts.) — It is contended by appellant that the acts of diversion and appropriation done by Horton in 1899 did not amount to an actual appropriation. It clearly appears from the evidence that the ditch was opened in the fall of 1899, and a headgate was put in and the water, to the amount of two hundred inches, was actually delivered on the Horton claim. These acts were followed up the next year by extending the ditch so as to more completely distribute the water over the entire claim, and this in turn was followed by cultivation of a larger acreage of the claim. We think the facts bring this case within the well-established rules of law both as to what constitutes an appropriation as well as the reasonable time in which the appropriator may apply the water to the intended use. (Conant v. Jones, 3 Idaho, 606, 32 Pac. 250; Pyke v. Burnside, 8 Idaho, 487, 69 Pac. 477; Sandpoint W. D. L. Co. v. Panhandle D. Co., 11 Idaho, 405, 83 Pac. 347.) Appellant further contends that the deed of June 2, 1904, from Horton to respondent Brown did not pass sufficient title to a possession with which he had parted some two years previously, so as to entitle the water right to date from the original diversion and appropriation by Horton. In support of this position appellant relies on the case of McGinnis v. Stanfield, 6 Idaho, 372, 55 Pac. 1020. That case differed from this in some respects. Here it clearly appears that Brown’s pos [173] session was obtained from Horton by contract of purchase, and that a part of the purchase price was paid at the time. It is clear that if the balance of the purchase price was thereafter paid, that Brown became the equitable owner and entitled to a conveyance, and that a court of equity would have so decreed, in which case the chain of title to the ditch and water right would have been continuous and complete from the perfecting of Horton’s right. If a court of equity would enforce a conveyance, it must follow that a voluntary conveyance made by the grantor under the same state of facts would convey as good a title as the court could decree. On the other hand, if the purchase price was never paid by Brown in accordance with the contract, the title (except as against the government) remained in Horton, and Brown’s possession remained, in contemplation of law, the possession of Horton. In either view of the case the water right was entitled to date from the original appropriation and application thereof by Horton. For the foregoing reasons it is unnecessary for us to consider the validity of the water right notice and claim posted by Horton on March 28,1900, or of the subsequent steps taken by him under that notice in his endeavor to comply with the law. The actual diversion and application of the water had preceded that date, and it therefore becomes unnecessary for us to consider the steps taken in regard to the posting and recording the notice and the prosecution of work thereafter. Appellant complains of the action of the court in reopening the case and permitting the plaintiff to introduce the contract, agreement or conveyance of May 21, 1902, which had been placed in escrow with Baker by Horton and Brown. Without passing upon the question as to the right of the trial court to reopen a case after the adjournment of the term at which it was tried (a question the consideration of which we specifically reserve in this case), we are content to rest our decision on the point that it clearly appears in this case that the defendant was in no manner injured or prejudiced by the action of the court in this respect. It appears that upon the trial of the ease the defendant had notice of the nature and character [174] of the agreement or contract, and that when it was actually produced-in evidence it only confirmed the position taken and evidence previously produced by the plaintiff. The title had already passed by deed of June 2,1904, which was in evidence. As stated above, we do not think anything we have said in this case is in conflict with the McG-innis-Stanfield case, hut if it should be so understood, then it is the purpose of this decision to overrule anything contained in that case in conflict with what we have herein said. ' The judgment of the lower court will be affirmed, and it is so ordered. Costs in favor of respondent. Stockslager, C. J., and Sullivan, J., concur.