Neasham v. Yonkin

BURNETT, J.

The action was brought to restrain the defendants from interfering with the flow of waters of a certain Neasham Creek, and of two certain springs, and for a judgment decreeing that plaintiffs are the owners of all the flow of said waters and entitled to the use of the same and that defendants have no right, title, or interest in or to the said waters or any part thereof.

Defendants answered, denying many of the allegations of the complaint and setting up two defenses, namely, that plain

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tiffs were estopped from claiming any interest in said waters, and that defendants had acquired a title thereto by adverse possession and use.

It may be said that the controversy is really as to the ownership of the waters flowing from two certain springs, designated as Nos. 1 and 2, located on the land of said defendants.

The court found “that in the year 1900 Ralph Neasham was the owner of, in possession of, and entitled to the possession of the above described land of plaintiffs; that in the year 1900 the said Ralph Neasham urged the defendant Mary L. Tonkin to enter under the homestead laws of the United States, and by virtue of said laws acquire title to the above-described lands of defendants, and at said time as an inducement to said defendant Mary L. Tonkin to enter said lands under said homestead laws agreed with said defendant that if she would enter upon the said lands and acquire title thereto, he, the said Ralph Neasham, would give the said defendant the use of the waters of the above mentioned Spring No. 1 and Spring No. 2, said springs being the same which plaintiffs assert the right to use in their complaint in this cause. That at said time said Ralph Neasham agreed with the said defendant that he would make no further claim to said waters of said springs or to the use thereof if defendant would enter said land; that said lands were at said time, and now are, arid and require artificial irrigation, and were valueless without water, and would not have been entered by said defendant under the homestead law without the use of the waters of said springs. That said defendant Mary L. Tonkin believed and relied upon the said statements and promises of the said Ralph Neasham, and so relying upon said statements did, in the month of December, 1900, enter upon the said land of defendants with the intention to claim and obtain title to said lands under the homestead laws of the United States of America, and thereafter complied with said homestead laws as to residence and cultivation, and diverted and applied to the necessary irrigation of said land and to the crops growing thereon, and for domestic use and stock water thereon all of the water of said Springs No. 1 and No. 2, and duly obtained patent to said lands under the homestead laws of the United States; that said defendant in reliance upon the said promise of said Ralph Neasham spent five years of her life acquiring title to said land, and expended large sums of money in improving said lands; that in the year