Happy Valley Land & Water Co. v. Nelson

HENSHAW, J.

Plaintiff, a public service corporation, engaged in the rental, distribution,- and sale of water, sued defendants, asserting title to certain water and water-rights and a ditch through which the water was carried, and seeking to restrain defendants from interfering with the ditch and water. The complaint alleged that the defendants asserted some right and interest to the plaintiff’s water and water-rights and ditches, and asked a decree affirming and quieting its title and rights against those asserted by defendants. The court gave judgment for plaintiff and from that judgment and from the order denying a motion for a new trial defendants appeal. Upon the appeal no contention is made that the judgment is not supported by the findings, the questions on appeal being limited to the proposition that the findings are not supported by the evidence.

It was established that plaintiff’s predecessor in interest, the Dry Creek Tunnel & Pluming Company, was incorporated for “the purpose of ditching and conveying water for mining and other purposes, etc.” Years before the predecessors in interest of these defendants acquired title to their lands, this corporation, with actual appropriation and user, had constructed the ditch in question and was carrying water through it, originally for mining purposes, subsequently for purposes of irrigation and domestic use. These rights of plaintiff’s predecessor having been acquired over the govern

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ment lands before their sale in private ownership, gave a vested possessory title under the act of Congress of 1866, and required no further or other record title for their support. Complaint is made by appellants that the description in the mesne conveyances from the Dry Creek Tunnel and Fluming Company to plaintiff were so defective as really to convey nothing. But it is not controverted, and cannot successfully be controverted, that all of the properties and rights of the Dry -Creek Tunnel and Fluming Company have vested in this plaintiff without objection by any of the grantors; that taxes upon these properties have been paid by plaintiff and its predecessors for more than five years previous to the commencement of the action, and that there was upon the part of these defendants a recognition of plaintiff’s rights, in that they paid for the use of the ditch and the water taken therefrom a sum of money seasonably, and, in addition, kept the ditch in repair. All this was done by them in subordination to and in recognition of the rights of plaintiff, and only when plaintiff raised its water rates shortly before the commencement of this action did the defendants refuse to pay, and assert title and ownership in themselves. The Dry Creek Tunnel and Fluming Company having appropriated the water for a useful purpose, its articles of incorporation authorizing it to use the water for mining and ‘1 other purposes of said corporation, ’ ’ the change in the use from sale for mining purposes to sale for purposes of irrigation and domestic use, was legitimate. Moreover, it is not questioned but that the plaintiff, which, as has been said, has succeeded to all of the rights of the Dry Creek Tunnel and Fluming Company, is formally and regularly incorporated for the supplying of water as a public service corporation.