Opinion
No. 5055.
March 21, 1929.
APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon Wm. A. Babcock, Judge.
Action to have easement for irrigation ditch established. Judgment for plaintiffs. Affirmed.
J.W. Taylor, for Appellant, cites no authorities on point decided.
Bothwell Chapman, for Respondents.
The trial court, sitting as a court of equity in this case, made its findings of fact and based its judgment upon conflicting evidence, there being evidence to support both theories of the case, from which reasonable men might draw different conclusions, such findings of fact and judgment will not be disturbed by this court on appeal where they are supported by competent evidence, and the judgment must be affirmed. ( Jones v. Vanausdeln, 28 Idaho 743, 156 P. 615; Viel v. Summers, 35 Idaho 198, 209 P. 454; Burrus v. Edward Rutledge Timber Co., 34 Idaho 606, 202 P. 1067; Morrow v. Matthew, 10 Idaho 423, 79 P. 196; Stuart v. Hauser, 9 Idaho 53, 72 P. 719; Robbins v. Porter, 12 Idaho 738, 88 P. 86; Later v. Haywood, 15 Idaho 716, 99 P. 828; Snowy Peak Min. Co. v. Tamarack Chesapeak Min. Co., 17 Idaho 630, 107 P. 60; Blackfoot State Bank v. Crisler, 20 Idaho 379, 118 P. 775; Weeter Lumber Co. v. Fales, 20 Idaho 255, Ann. Cas. 1913A, 403, 118 P. 289.)
Respondents and their predecessors in interest constructed and used, until destroyed by appellant, a ditch through appellant's premises. This action was instituted to have it decreed that respondents have a prescriptively acquired easement for such ditch through appellant's premises; that appellant be restrained from interfering with the ditch; and for damages. The ditch was constructed after appellant had filed on the land through which it runs, but prior to occupancy thereof by appellant.
Respondents do not seriously contest that a permissive use cannot be the basis of a prescriptive right; nor that a permissive use cannot become adverse until the change in the user's attitude is brought (actually or constructively) to the knowledge of the owner; and that possession having begun in consistency with the rightful title, it must appear that its character has been changed; otherwise its possession will retain its original quality through any succession of occupants of the land and will be presumed to be in submission to the dominant interest; but they urge that a decision of the trial court resting on sufficient though conflicting evidence will not be disturbed, and that herein the evidence is sufficient to show an adverse use for the prescriptive period, known as such to appellant.
This court has announced as applicable herein the following doctrine:
An adverse claim based on occupation for the prescriptive period must show actual occupation accompanied by a claim or an intention inconsistent with the title of the owner. ( Bower v. Kollmeyer, 31 Idaho 712, 175 P. 964.) That there was occupation here is not questioned. Appellant contends that the occupation was not adverse; respondents contend that it was.
Passing over the legal situation when the ditch was first constructed, in 1911-1912 the course of the ditch was changed. It cannot be said that reasonable minds might not legitimately differ as to whether the rights claimed at that time by respondents' predecessors in interest were adverse or permissive. The determination of which way the evidence preponderated was for the trial court and we cannot say he erred in finding and concluding in favor of the respondents.
The judgment is affirmed.
Costs awarded to respondents.
Budge, C. J., and Wm. E. Lee and Varian, JJ., concur.