Heinkel v. McAllister

THE COURT. This is an appeal from a judgment in favor of defendants and from the order denying plaintiff’s motion for a new trial.

[501]In 1910 plaintiff’s property was owned by one Shadduck and defendants’ property was owned by one Harris. Shad-duck required more water for use on his land and in search for an additional source discovered a “wet spot of ground” on the Harris property. Upon request, Harris granted permission to develop the spot in the hope of finding water. Mr. Shadduck found water, and to utilize the water thus found put in a piping arrangement to bring the water across the county road which divided their properties onto his land where he used it for watering livestock, irrigation, etc. This usage continued until 1939 when the Shaddueks sold their parcel to the Atkinsons. At the time of sale the Shaddueks specifically informed them that they did not own the water so therefore were not selling it. By this time (1934) the Harris property was owned by one Miss Boucher.

During the year 1940 Miss Boucher fenced in her property and had the pipes taken out at the source, putting in a watering trough which was supplied by the water from the spring. Atkinson testified that a short time later Miss Boucher told him he could have the overflow water from the trough, so he replaced the pipes removed by her and from then on during the time he held the property he had the use of said overflow water. Atkinson did some maintenance work on the piping system. When asked directly as to whether he claimed to own the water Atkinson testified that he did not, unless there was a state law saying he could have it.

In 1944 Atkinson sold his property to Stevens, who owned it until 1946 when he sold it to the appellant Heinkel. Heinkel testified Stevens was using the water when she took possession of the property. Other than the fact of user there is nothing to show the character thereof, i.e. whether the same was adverse or permissive. In July 1948, Miss Boucher sold her property to respondent McAllister who on October 1, 1948, removed the pipes and prevented further use of the water by appellant, whereupon the instant action was instituted.

Appellant makes two contentions, her first being that the judgment is unsupported by evidence and the findings of fact are contrary to and in conflict with the evidence. Secondly, she contends the decision is contrary to the law and the facts.

Appellant’s brief, in the portion devoted to her first contention, summarizes the evidence given by Frederick Atkinson, Mrs. Hattie Atkinson, Mr. H. F. Heinkel and Alice Heinkel. But nowhere therein does she state in what manner this evidence fails to support the findings of fact and the judgment.