Sheehan v. Kasper

By the Court, Coleman, J.: Plaintiffs brought suit to restrain the defendant from destroying a certain canal, ditch, and power line. From a judgment and decree as prayed, and from an order denying a motion for a new trial, an appeal is taken. Plaintiffs contend that they were, and at the time the suit was instituted, and for about fifty years prior thereto they and their predecessors in interest had been, the owners of land in possession of a large tract of land known as the Taylor & Sheehan Ranch, and a certain canal commonly known and called “the Humboldt Canal,” together with a strip of land 100 feet in width, extending 50 feet on each side of the center line of said canal, all situated in Humboldt County, Nevada, during which time they had paid all taxes assessed thereon; that the Glasgow Exploration Company was, in the year 1910, the owner of a tract of land consisting of about 179 acres, which it acquired as a mill site, and through which “the Humboldt Canal” flowed, and that plaintiffs acquired from said exploration company an irrevocable license to construct, maintain, and operate a certain branch ditch and power line over, upon, and across said mill site, which they constructed at a cost of about $45,000. That said Humboldt Canal, ditch, and power line were being used to divert certain waters of the Humboldt River that had been appropriated by plaintiffs — 32 — with which to irrigate the growing crops on the land so owned by them, of the alleged value of $30,000; that thereafter, and in 1915, and while plaintiffs were in the possession of all the property mentioned, the defendant purchased said mill site and took a quitclaim deed thereto; that defendant threatened to fill in and destroy said canal and ditch and tear down and destroy said power line, and if not restrained would fill in and destroy the same, to the damage of plaintiffs; that defendant is insolvent and unable to'respond to plaintiffs in damages. They also contend that they had the right to use “the Humboldt Canal” through which to divert the waters of the Humboldt River for irrigation purposes. Defendant contests every contention of the plaintiffs, except the existence of their partnership, their ownership of the Taylor & Sheehan ranch, and their right to a portion of the waters of the Humboldt River for the irrigation of their lands. 1. To enable the trial court to render judgment in favor of plaintiffs as prayed, it was necessary that it find, in addition to the admitted allegations of the complaint, that “the Humboldt Canal” had a valid existence, and that it was owned by the plaintiffs; that the plaintiffs acquired a license to construct, maintain, and operate the branch ditch and power line; that the same was not revocable at the will of defendant; and that the defendant was threatening to fill in and destroy said ditch and power line. The learned judge before whom the case was tried in the district court filed a written opinion in the case, in which he says that evidence was received to the effect that the Humboldt Canal was started somewhere about the year 1862; that, a right of way, as claimed by plaintiffs, was granted by the government to the Humboldt Canal Company for irrigation, and possibly other purposes, and makes his finding accordingly. As we read the record, the witness who testified concerning the grant intended to convey the idea that there was a — 33 — special act of Congress granting the canal company a right of way, but no such act was offered in evidence or called to the attention of this or the trial court. The evidence clearly sustains the findings and conclusions of the court; in fact, we do not think this finding is seriously questioned. However, the probability is that there never was a special act of Congress granting to any one the canal in question. It is more likely that the right of way over the public domain for the canal was confirmed in the owners thereof under the act of Congress approved July 26, 1866, which provides that: “Whenever, by priority of possession, rights to the use of water for mining, agriculture, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decision of courts, the possessors and owners of such vested rights shall be maintained and protected in the same.” (U. S. Rev. Stats. 2339; U. S. Comp. Stats. 1916, sec. 4647.) 2. But no matter whether the right of way for the canal became vested under a specific grant or was confirmed under that portion of the act of Congress quoted, we are clearly of the opinion that the contention of appellant that he acquired title to that portion of the canal which lies within the “mill site” under his deed from the exploration company is unfounded. The government, having clearly passed title to the right of way for the canal, could convey no title thereto when it conveyed title to the mill site. The patentee to the land embraced in the mill site took title subject to the right of way for the canal, and the defendant could and did acquire no better or greater right. (Broder v. Water Co., 101 U. S. 274, 25 L. Ed. 790; Coffin v. Left Hand Ditch Co., 6 Colo. 443; Carson v. Gentner, 33 Or. 512, 52 Pac. 506, 43 L. R. A. 130; Osgood v. El Dorado Water Co., 56 Cal. 571-581.) We come now to the question of the license from the exploration company for the right of way for the branch — 34 — ditch and power line. Mr. Taylor, one of the plaintiffs, testified concerning a conversation which he had with the managing director of the company, who was in actual charge of all of the company’s affairs in 1910, when his firm was Taylor & Edson, at which time that official granted permission to his firm for the construction of certain works across the mill site, to be used in conducting the water for irrigation purposes. No particular line was contemplated or designated in the conversation between Taylor and the manager of the company for the construction of the works; the only restriction which was imposed being that the then existing plant and railroad should in no way be impaired or interfered with. Thereafter Sheehan purchased the interest of Edson in the then partnership of Taylor & Edson, and the firm became Taylor & Sheehan, the plaintiffs. After Sheehan entered the firm, the plan of irrigating the land which is now in existance was adopted. 3. It is contended by appellant that there never was a license granted to either the firm of Taylor & Edson or Taylor & Sheehan, and that if such a license was granted to Taylor & Edson it was forfeited by Edson’s sale to Sheehan; and that if, in any event, a license was granted, it was revocable, and that he had exercised the right of revocation. Appellant urges that the managing director of the exploration company had no power to grant a license. We do not deem it necessary that this question be determined, for the reason that, conceding that his action in that connection was in excess of his authority, we are. of the view that the company ratified his action. 4. As to the point that the sale by Edson of his interest in the partnership to Sheehan operated to cancel the license, we need only to say that under the facts and circumstances of this case the court will presume that that firm had a license from the exploration company. The’record shows that the superintendent of the exploration company knew of the construction by — 35 — Taylor & Sheehan, at a cost of about $45,000, of their branch ditch and power line and system, from the very beginning of the operations, and that the managing director was upon the premises several times and was told of and saw what was being done, and no protest was made. Subsequent to the construction by the respondent of the works, succeeding representatives of the company went upon the premises, knew of and saw the branch ditch and power line, and no protest was made. Finally, in 1913, one Joseph Ralph appeared upon the scene with a power of attorney, so comprehensive in its terms as to authorize him to do anything that could be done by the company. One of the provisions of that instrument reads as follows: “To complete or carry out or vary any contracts or engagements which the company has already approved of or agreed to or entered into, either verbally or in writing, without any person or body for the time being concerned being in any way obliged or permitted to require any evidence whatever that the company has either approved of or agreed to or entered into any such contract or agreement; and also to put an end to any contract into which the company may have entered, and if thought proper to enter into a new contract in lieu thereof.” While acting under this power of attorney, Mr. Ralph was upon the property at least six times, in company with the superintendent of the exploration company,- and saw and talked with the superintendent of the company about the branch ditch and other works of the respondents. He made no objection to what had been done by the respondents, notwithstanding the fact that they were in possession of and operating the plant. The uncontradicted evidence is that the managing director of the exploration company, at some time after respondents had completed their branch ditch and power line, said their constructing of the same was “all right.” The authorities hold that a license may result from approval of acts of the licensee after they are done, as — 36 — well as from an express permission granted before they are done. (Metcalf v. Hart, 3 Wyo. 513, 27 Pac. 900, 905, 31 Pac. 407, 31 Am. St. Rep. 122; Cumberland Valley Railroad Co. v. McLanahan, 59 Pa. 23-31; Walter v. Post, 13 N. Y. Super. Ct. 371.) See, also, Occum Co. v. Sprague, 35 Conn. 496; Hickox v. Parmelee, 21 Conn. 99; Hansen v. Farmers’ Coop. Cr., 106 Iowa, 167, 76 N. W. 652. 5. But appellant contends that, conceding that a parol license was granted to plaintiffs, there was no consideration therefor, and hence it is revocable at his pleasure. In considering this contention, there must be kept in mind the difference between an executed and an executory license. As to the latter class, so far as we know, the authorities are practically unanimous in holding that they may be revoked, but as to an executed parol license the authorities are divided. See 25 Cyc. pp. 646, 647; 17 R. C. L. p. 578; note to Rerick v. Kern, 16 Am. Dec. 497. Persuasive arguments can be urged, to sustain both views, but the question was settled in this state in the case of Lee v. McLeod, 12 Nev. 284, contrary to appellant’s contention, and no reason has been advanced which inclines us to overrule that case. It is contended by appellant that he knew nothing of respondents’ claim of a license at the time he purchased the mill site, and that consequently he ought to be treated as an innocent purchaser without notice. Appellant had lived in the vicinity of the property off and on for-ten years, and continuously for one year. Respondents were in open and notorious possession and enjoyment of the ditch and power line at and for three or four years prior to the time appellant bought the mill site. This court, in Patchen v. Keeley, 19 Nev. on page 413, 14 Pac. 352, quoting from Judge Story’s opinion in Ricard v. Williams, 7 Wheat. 105, 3 L. Ed. 398, says: “The law will never construe a possession tortious unless from necessity. On the other hand, it will consider every possession lawful, the commencement and continuance of which is not proved to be wrongful.” — 37 — See, also, Bank of Italy v. Burns, 39 Nev. 326, 156 Pac. 932, 159 Pac. 863. 6. The possession of plaintiffs was sufficient to put the defendant on notice. Perceiving no error in the j udgment, it is ordered that it be affirmed.