Smith v. North Canyon Water Co.

After stating the facts, Miner, J., delivered the opinion of the court. — 199 — It clearly appears that at the time of the organization of the water district of the defendant, in 1877, Eolfson, the plaintiff’s predecessor in interest, had an unquestioned right to 10 acres of water, or 10-212 of the water, owned by thé company in the North Canyon creek. This right was not diminished by the relinquishment of 3-& acres of water from Howard to him. Eolfson, after such organization, took possession and used the water on 10 acres of his 120-acre farm, at least for the years 1877, 1878, and 1879, and paid all the taxes levied upon his right. His right to this water was never in any way questioned or. disputed by the defendant, or any co-tenant, up to the time he sold the land to which the right was appurtenant. By associating together under the irrigation laws of 1876, Eolfson and his associates became tenants in common of the waters of that stream, and each landholder of. such district was equally entitled to the use of the water brought into such district, according to their rights, by paying their proportionate share of the expense. It nowhere appears that the taxes and expenses were .not paid. 2 Comp. Laws Utah, § 2403; Freem. Co-Ten. § 88; Kin. Irr. § 301; Bradley v. Harkness, 26 Cal. 69. The use of the -water in question for several years subsequent to 1879 is- not disclosed by the testimony or findings, and no negative findings appear, but that Eolfson actually used the water for at least three years. It appears by the resolutions and by-laws of the company that owners of water rights could only draw water for the land under cultivation, and that land not planted in season should not be allowed water. It does not appear from the findings that the water was not withheld on account of the provisions of these resolutions. It nowhere appears that the defendant or any co-tenant held adversely to Eolfson or his grantee. 'Whatever the truth may be, the findings — 200 — concede this fact. Tbe burden of proving an ouster of tlie tenant in common, as in proving adverse possession under the statute of limitations, devolves upon the co-tenant who asserts it. Inasmuch as no finding was made upon this subject, the presumption is that the water was continued to be used with right by Eolfson. The possession of one tenant in common is the possession of all his co-tenants. There is no element of hostility. In. jaichqws-session, and an adverse holding will not operate as an ouster, and set the statute of limitations running, until tlie"tenáñFmrFóf possessionhas some notice of such adverse holding. Such possession cannot be considered adverse," unless there was an actual ouster or some equivalent act showing the intent or act of exclusion. Freem. Co-Ten. §§ 221, 222; Thomas v. Glendinning, 13 Utah 57; Coleman v. Clements, 23 Cal. 245; Unger v. Mooney, 63 Cal. 586. Neither was there any abandonment of the water by the plaintiff or his predecessor in interest. To be adverse, the abandonment must be accompanied by all the elements required to make out an adverse possession. Kin. Irr. § 413. The court properly held that Eolfson remained the owner of the water until he sold the land upon which it was used to the plaintiff in 1887. But the court also held that Eolfson abandoned his right by making an improper conveyance of it to the plaintiff. We cannot concur in this holding. Section 2783, Comp. Laws Utah 1888, provides that “ a continuous failure to use any right to water, for a period of seven years, at any time after the passage of this act, shall be held to be abandonment and forfeiture .of such right, and whenever hereafter a conveyance of any parcel of land is executed, and a right to the use of water has been continuously exercised from the time of’ its first appropriation in irrigating such land, such right shall — 201 — pass to the grantee oí such conveyance. * * * * provided, tliat in any of the cáseo mentioned in this section, any such right to the use of water, or any part thereof, may be reserved by the grantor of such conveyance, by making such reservation in express terms in such conveyance.” The conveyance from Eolfson to Pitt was upon its face an absolute conveyance of the land, with its appurtenances, although, as between the parties, it was intended as a mortgage. Eolfson after this, in 1887, sold all his right and interest in the land and appurtenances to the plaintiff. The title then being in Pitt, he agreed that Pitt should execute a deed of the premises and appurtenances to the plaintiff, and he at the same time delivered to the plaintiff the receipts for water taxes. As between Eolfson, Pitt, and the plaintiff, this operated- under the statute as a conveyance of the title in the land, together with all and singular the appurtenances thereunto belonging and appertaining, to the' plaintiff. This, as between these parties, included the water right to the land, and the plaintiff succeeded to all the rights that Bolfskm had therein. The defendant was an absolute stranger to this conveyance, and is not in a position to dispute the title obtained by the plaintiff under the deed. As to other persons the grantee may exercise all the rights of an absolute owner, whether the transaction be a mortgage or a conditional sale. 1 Jones, Mortg. § 330; Kin. Irr. §| 2G7, 268; 2 Confp. Laws Utah 1888, § 2783. There is no express finding'by the court that the defendant had been in the quiet, peaceable, adverse, hostile as of right, continuous, open, and uninterrupted possession of the water in question for seven years previous to the commencement of this action. Nor does the court base its, decision upon the ground of adverse possession, but rather upon the fact that Eolfson, having failed to make a proper — 202 — conveyance oí his right, thereby abandoned it, and that plaintiff’s right did not commence until he actually appropriated the water. The burden of proving adverse, uninterrupted possession of the water for seven years is cast upon the party asserting, assuming, and claiming it. We have seen that the delivery of the deed to the plaintiff vested in him a right to the water. The possession of his co-tenant was his possession. Since 1887 the defendant prevented the plaintiff from using the water, although the plaintiff was constantly demanding his water right. On one occasion, in 1893, plaintiff took all the water under his claim of right, and used it on his 10 acres of land, and on three or four different occasions/in 1894, he took all the water for his 10 acres, under the advice of an attorney. This taking by the plaintiff was such an interruption of the defendant’s use of the water as to prevent the creation of a title thereto by prescription, and it was also such a use and assertion of title to the water as to negative the presumption that he had abandoned or forfeited his right to it under the statute. The right of the defendant in the water would become fixed only after seven years’ continuous, uninterrupted, hostile, notorious, adverse enjoyment; and, to have been adverse, it must have been asserted under the claim of title, with the knowledge and acquiescence of the person having the prior right, and must have been uninterrupted. To be adverse, it must have been accompanied by all the elements required to make out such adverse possession; the possession must have been actual occupation, open, notorious, hostile, and under a claim of title exclusive of any other right, continuous, and uninterrupted for a period of seven years. “The use must also have been open as of right, and also peaceable; for, if there is any act done by the owner that acts as an interruption, however slight, it pre203 yents tbe acquisition of the right by such use.” Under the findings, the plaintiff had not continuously, for a period of seven years, failed to use his right to the water, but, on the contrary, had continuously demanded its use, and had actually used and appropriated it during the years 1893 and 1894. The use of the water by the defendant was interrupted by the plaintiff’s lawful use and appropriation of the 10 acres of water right within the seven years next preceding the time of the commencement of this action. The fact that the defendant prevented plaintiff from using the water, after it discovered he was using it in 1893 and 1894, would not change the rule or inure to its benefit. The fact still remains that the defendant’s use was not continuous and uninterrupted during the statutory period of seven years. The act on the part of the plaintiff in taking and using the 10 acres of water right upon his land, in 1893 and 1894, was an appropriation of the water as well as an assertion of title thereto. These acts of ownership and use not only preclude the presumption of any abandonment of the water on the part of the plaintiff, but also preclude the statutory bar of his rights to the use and ownership of the 10 acres of water. American Co. v. Bradford, 27 Cal. 361; Cove v. Crafts, 53 Cal. 135; Authers Bryant (Nev.), 38 Pac. 439; Freem. Co-Ten. § 222; Kin. Irr. §§ 256, 294; Thomas v. Glendinning, 13 Utah. 57. It appears from the findings that the use of the water by the defendant was worth five dollars per acre for eacli of the four years it had used it. Under the facts found, we are of the opinion that the judgment and decree of the district court should be reversed, and a decree entered in favor of the plaintiff, quieting title in the 10 acres of water right referred to in the complaint in the plaintiff, together with a decree for $200 as damages for the use of — 204 — the water by the defendant company for four years, as claimed in the complaint. The cause is remanded to the district court, with directions to set aside and vacate the decree entered therein, and to enter a decree against the defendant and in' favor of the plaintiff for his 10 acres of water-right, which would be 10-212 of the water and shares of the North Canyon creek, and for $200 damages for the use of such water during the four years next-previous to the commencement of this suit, together with costs of both courts. ZaNe, C. J., and BaRtch, J., concur.