Smith v. Hampshire

McLAUGHLIN, J.

This action involves the respective rights of the parties to a water ditch and its use. It was alleged in the complaint that appellant owned the ditch with the right to its untrammeled use, and that respondents were hindering and obstructing him in the enjoyment of such right. Title by adverse use and possession for the statutory period was specially pleaded and damages in the sum of $1,000 were claimed. The answer contained specific denials of these averments, set up the statute of limitations generally, and by special plea of right to use the ditch and checks and side ditches connected therewith, acquired by adverse possession.

The court found that respondents owned the land over which the ditch runs; that plaintiff in 1893 constructed the ditch across said land from a general ditch owned by the Lakeside Ditch Company (a corporation), and had used the same adversely to respondents, during the irrigating season, for ten successive years, for the purpose of conveying a quantity of water to which he was entitled by reason of his ownership of two hundred shares of the capital stock of said ditch company, to and upon his land for irrigating the same. It was further found that appellant by long-continued adverse use had acquired the right to enter upon said land and ditch for the purpose of cleaning out and repairing the latter, but that respondents had not interfered with this right, nor with the use of the ditch for the purpose of conveying the quantity of water above mentioned. Touching the rights of respondents, it was found that for more than six years before the commencement of this action, they had used a portion of said ditch jointly with appellant for the purpose of conveying a quantity of water, representing seventy shares in the ditch company, to a side ditch or open cut, where they at all times during the irrigating season of each year maintained checks to turn the said quantity of water into the side ditch for use in irrigating their land, and that such use of the ditch, side

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ditch and checks was “open, notorious, peaceable, uninterrupted, continuous, exclusive, under a claim of right and adverse to the plaintiff and the whole world.”

It is contended that this finding is utterly inconsistent with the finding as to appellant’s prescriptive right and that the conflict is so irreconcilable as to necessitate reversal.