Gill v. Malan

McCARTY, J., after stating the facts, delivered the opinion of the court. Plaintiffs contend that the water of this spring was not sub" ject to appropriation at the time it is claimed the appropriations were made by the defendants, and that the findings of the court, wherein it is held that the water had been abandoned by plaintiffs and was subject to appropriation, are erroneous and not supported by the evidence in the case. Defendants base their claim to the water in question upon the alleged appropriation made by Edaly F. Hampton and his wife, Emma Hampton, in the year 1891, and a further al~ [437] leged appropriation made by Bartholomew Malan in 1896. The evidence shows, and the court found, that the plaintiffs’ grantors and predecessors in interest, who were the owners of the land upon which the spring rises, and the year 1887 purchased whatever right and interest Edaly E. Hampton and his wife, Emma Hampton, may have acquired in and to the water of the spring, and all ditches and flumes constructed and used by them for conveying the water from the spring to their respective premises, together with all easements and rights of way which they may have acquired for the maintenance of said ditches and flumes. After the Hamptons had thus parted with their title and interest in and to the water, it continued to flow along and through the artificial water course which had passed to the owners (plaintiffs’ grantors) of the land upon which the spring is situated and which was a part of the freehold. The water was not, therefore, subject to appropriation, unless abandoned by the owners thereof, of which there is not a scintilla of evidence, except that neither plaintiffs nor their grantors made any use of the water and permitted it to continue to flow through the artificial water course referred to onto the premises of the respective defendants, which fact is not sufficient of itself to constitute abandonment, especially in view of the fact that the entire course and conduct of plaintiffs and their grantors tends to show that they had no intention of abandoning or relinquishing their rights to the water. (Promontory Ranch Co. v. Argile, 28 Utah 398, 79 Pac. 47.) Eor the record shows that plaintiffs’ grantors on September 17, 1887, purchased from the grantees of E. E. Hampton and his wife the water right and water course in question, and paid therefor the sum of $1,000, and when plaintiffs were informed that defendants had extended the pipe line to the spring, with the intention of permanently using the water under claim of right so to do, plaintiffs at once, within the course of a week or ten days, commenced an action to restrain defendants from maintaining the pipe line and to establish their (plaintiffs’) title to the water. Besides, the undisputed evidence in the case shows that J. D'. Gill, acting for himself and co-owners, plaintiffs [438] herein, in 1896'and 1897 broke the water course in question and, diverted the water therefrom, so that it flowed down the old channels and sank before it passed beyond plaintiff’s lands, and he (Grill) forbade E. E. Hampton from interfering-with or using the water. And the record further shows that during the years 1894, 1895, 1896, and a part of 1897, E. E. Hampton and his wife were occupying the Nagle property, and using thereon the water in controversy, as the tenants of J. D. Gill, one of the plaintiffs to this action; and the rule is elementary that a tenant cannot acquire title to property occupied by him as such tenant by adverse possession. This doctrine is so well settled that we deem it unnecessary to cite authorities in support of it. It is conceded that Malan, the other defendant, first commenced using the water in 1896, and that the inception of his alleged right to its use dates from that time. Therefore, even though it were conceded, as contended for by defendants, that title to the water in controversy could under the facts as presented here be acquired by seven years’ adverse use of the same, a question not necessary here to decide, the pi aim tiffs would have to prevail, for the record conclusively shows that Malan had not used the water adversely or otherwise for that length of time. The cause is remanded, with directions to the trial court to vacate and set aside that portion of the findings and decree wherein it is held that the waters of the spring were abandoned by the plaintiffs and appropriated by defendants and used by them adversely under a claim of right so to do; and the trial court is further directed to make findings on these issues in favor of plaintiffs and enter a decree in accordance therewith. The costs of this appeal to be taxed against respondents. BARTCH, C. I., and STRAUP, J., concur. •