(28 Idaho, 248)

GORRIE v. WEISER IRR. DIST. (Supreme Court of Idaho. Nov. 27, 1915.) 1. WATERS AND WATER COURSES 244 RIGHT OF WAY-IRRIGATION CANAL-ExTENT OF EASEMENT.

One who has acquired a right of way for a canal across the land of another by adverse user has acquired also the right to enter on such land for the purpose of cleaning and maintaining such canal.

[Ed. Note. For other cases, see Waters and Water Courses, Cent. Dig. § 309; Dec. Dig. ~~244.]

2. WATERS AND WATER COURSES 244 RIGHT OF WAY-IRRIGATION CANAL-EASE

MENT.

session, and furthermore claims that it has not used any more of plaintiff's land in maintaining its canal than is included in its easement, and has used no more than was necessary to be used in the lawful conduct and operation of its canal.

The cause was tried before the court, but a jury was impaneled to determine the question of damages. By the verdict of the jury the plaintiff was given $50 on account of the second cause of action, but said nothing about the damages on the first cause of action. Thereafter the court made its finding of facts and conclusions of law based upon the verdict and judgment of the jury, and judgment was thereupon entered upon said finding of facts and conclusions of law for the defendant and against the plaintiff.

Held, that the right to clean and maintain the canal is involved in the acquisition of it, but in doing that work the owner must do the same with due care and not occupy any more or greater width of the land along the banks of the canal than is absolutely necessary in depositing the débris and other matter necessarily required to be taken from such canal to prop-permanent restraining order, and it is from erly clean and maintain it.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 309; Dec. Dig. 244.]

The court found as a conclusion of law that the plaintiff was not entitled to a

that part of the judgment denying plaintiff a permanent restraining order that this appeal is taken. And that is the only question involved on this appeal, so far as the plain

Appeal from District Court, Washington tiff is concerned. County; Ed. L. Bryan, Judge.

Action by Norval Gorrie against the Weiser Irrigation District, a corporation. From a judgment for defendant, plaintiff appeals. Affirmed.

Ed. R. Coulter, of Weiser, for appellant. Lot L. Feltham, of Weiser, for respondent.

The verdict in favor of the plaintiff for $50 was granted as damages under the second cause of action, which was based on the failure of the defendant to comply with an arrangement made with the plaintiff to place the débris washed into said canal by a cloudburst on the upper side of the ditch and properly spread the same over the land. This, however, is not material to the questions raised on this appeal, since the appeal touches only the matters contained in the first cause of action.

SULLIVAN, C. J. This suit was instituted on two causes of action. It is alleged in the complaint that the plaintiff is the owner of certain lands therein described, and that the defendant is the owner and proprietor of an irrigation canal running through, over, and across plaintiff's said land, and that during the years 1909, 1910, 1911, and 1912 defendant wrongfully, unlawfully and in violation of the rights of plaintiff, took and dug sand and other débris matter from its said canal and dumped and placed the same upon the lands of this plaintiff, thereby filling up his ditches and rendering his land unfit for cultivation and farming, and otherwise dam-continue to do so unless restrained by the aging him in the sum of $200.

The second cause of action is based on an alleged failure of the defendant to comply with a certain agreement, but this appeal touches only the matters contained in the first cause of action. Plaintiff prays for damages in the first cause of action and for a permanent restraining order preventing defendant from dumping any débris taken from said canal, and for costs.

The plaintiff states in his brief that from the uncontradicted testimony it appears that the only right of way defendant has across plaintiff's land is by virtue of an easement obtained by adverse use and possession, and that continuously for the past five or six years each year the defendant has been encroaching from one to two feet upon the lands of plaintiff not included in or subject to its said easement, and that it will

court.

It appears that defendant deraigned its title to the canal and right of way through mesne conveyances running from 1884, all of which instruments or conveyances are by stipulation presented here on appeal for inspection by this court, and all of which instruments were introduced in evidence on the trial. It appears that no formal deed for any width or certain area of land was Defendant in its answer admitted the own-ever made by any predecessor or owner of ership of the land by the plaintiff, admitted the land of plaintiff to the defendant comthe ownership of the canal in itself, but de-pany or its predecessors in interest for any nied all the other material allegations of the right of way over said land for said ditch; complaint. Further answering, the defend- that defendant claims its right of way by preant claims a right of way across plaintiff's scription and use and by adverse possession land for its canal by adverse usage and pos- for the ten years last past.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 153 P.-36

The evidence shows that in 1903 the ditch | gives the right to the owner to do all things was enlarged to its present size, about 20 feet necessary to maintain, care for, and operate in width; that it was widened at that time the same. The rule to be applied in this about 2 feet, and up to that time the man- case is the ordinary rule applicable to the ager of said ditch had widened it a little preservation of easements. In McGuire v. each year. After 1903 no enlargement was Brown, 106 Cal. 660, 39 Pac. 1060, 30 L. R. A. made of said canal. The only work done 384, it was held that the right to maintain upon it was to clean out the sediment and the ditch is involved in the acquisition of it. wash from the hills and from the water [2] It is conceded that the defendant has brought down through the Weiser river into acquired a right of way for said ditch or said canal during the irrigating seasons. The canal over the land of the plaintiff. The easement by adverse user or prescription is right to clean and maintain it is involved in based on those facts. the acquisition of it, even though it were acquired by adverse user. Due care, however, must be observed by the owner of the canal in the cleaning and maintenance of such canal across the land of plaintiff to do such work properly and not to occupy any more or greater width of land along the banks of the canal than is absolutely necessary for depositing the débris and other matter necessarily required to be taken from such canal to properly maintain and clean it. The owner of such ditch has the right to enter the land across which such right of way extends for the purpose of cleaning and repairing the ditch.

It appears from the evidence that the canal had to be cleared from sand and débris and silt every year. It also appears that a waterspout occurred in 1911 and caused the filling of its canal on said land, and that there was an arrangement made with the plaintiff by the canal company at that time whereby the defendant cleaned the sand, boulders, and brush out of the canal brought there by said waterspout or cloud-burst, and placed the same upon the uphill side of said canal and spread it out over plaintiff's land above the canal. It appears that the defendant company and its predecessors in interest ever since the year 1881 claimed a right of way for the canal across said land and a place to put the material resulting from the enlargement and cleanings of the canal, and this claim was never contested or denied until the commencement of this action by the plaintiff.

very much.

[1] The principal question involved in this case is the extent of the right of way the respondent has acquired for the maintenance and operation of its canal. If it only has a right of way just the width of its canal in which the water runs and the banks that confine the water, and has no right to enter upon the land bordering upon the ditch or canal for the purpose of repairing or cleaning it, the easement might not amount to In Carson v. Gentner, 33 Or. 512, 52 Pac. 506, 43 L. R. A. 130, the Supreme Court of Oregon held that the ditch proprietor had a right to enter on the lands of another on which the ditch runs, to clean and repair the same, and that the right to the ditch included the right to repair it. In Whitmore v. Pleasant Valley Coal Co., 27 Utah, 284, 75 Pac. 748, it was held that a right of way for a ditch under the statute referred to constituted an easement granted for, and limited to, the purposes mentioned in the act, and gives the owner of the easement no right to occupy or use the surface of the land embraced within it for any other purpose than that specified; that such owner may, after constructing his ditch, do the things necessary to maintain and care for and operate the same.

We have examined the other assignments of error and are satisfied that there is nothing in them that would require a reversal of this case.

The judgment of the trial court must therefore be affirmed, with costs in favor of the respondent.

BUDGE and MORGAN, JJ., concur.

(28 Idaho, 269)

FELTHAM et al. v. BOARD OF COM'RS OF
GOOD ROAD DIST. NO. 1 OF WASH-
INGTON COUNTY et al.
(Supreme Court of Idaho. Nov. 30, 1915.)

1.

ESTABLISHMENT OF HIGHWAYS.

Codes, as amended by Laws 1909, p. 172, the Under the provisions of section 1058, Rev. board of good road commissioners has power to receive road petitions and lay out, alter, create, and abandon public highways within their respective districts, subject to an appeal to the board of county commissioners of such district. 2. HIGHWAYS 58-PROCEEDINGS TO ESTABLISH-RIGHT OF APPEAL-PARTIES.

Under the provisions of section 1950, Rev. Codes, an appeal may be taken from any act, missioners by any person aggrieved thereby. order, or proceeding of the board of county com

[Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 177-198, 200-203; Dec. Dig. 58.]

3. ESTABLISHMENT OF HIGHWAYS.

Held, that the district court erred in holdhave that part of the road in the south half of ing that the petitioners were not entitled to section 9 declared a public highway, and that the court did not err in holding that the petitioners were not entitled to have that part of the proposed highway situated in the north half of section 16 declared a public highway. We are clearly of the opinion that where 4. EXHIBITS-ADMISSION IN EVIDENCE. the right of way for a ditch or canal is Held, that the court did not err in admitobtained by adverse user, such easement ting certain exhibits on the trial of this case.

Appeal from District Court, Washington | half of section 16; third, that the district County; Ed. L. Bryan, Judge.

Action by Lot L. Feltham and others against the Board of Commissioners of Good Road District No. 1 of Washington County and others to establish a highway. From a judgment for defendants, plaintiffs appeal. Affirmed in part, and reversed in part.

Lot L. Feltham, of Weiser, for appellants. B. S. Varian, of Weiser, and John H. Norris, of Payette, for respondents.

court erred in refusing appellant's motion for judgment on the record, on the ground that no protest had been filed against the granting of said petition, and no legal objections made to have said road declared open; fourth, that the district court erred in affirming the decision of the board of county commissioners; fifth, that the court erred in admitting certain exhibits on the trial of said case.

[1] This proceeding was brought under the amended by Laws 1909, p. 172, which, among provisions of section 1058, Rev. Codes, as other things, provides as follows:

"The board of good road commissioners shall have power to receive road petitions and lay out, alter, create and abandon public highways within their respective districts, subject to an appeal therefrom to the board of county commissioners of the county in which such district is situated, in the same manner in which appeals are taken from the board of county commissioners to the district court."

As above stated, there was no appeal taken from that part of the decision of the commissioners of the good road district grant

SULLIVAN, C. J. This is an appeal from the district court, affirming the decision of the board of county commissioners, which decision in part sustained and in part overruled the decision of the commissioners of good road district No. 1 in Washington county. The commissioners of said good road district took under consideration a petition in writing signed by 21 inhabitants and taxpayers of said good road district, asking for the laying out and opening of a public road through the north half of section 16 and the south half of section 9, township 10 north, of range 5 west of Boise meridian, in said coun-ing the opening of the road through the ty. The commissioners of the good road district granted a part of said petition, and ordered said proposed road opened through the south half of said section 9, but refused to make an order opening the road through the north half of section 16. An appeal from that order was taken by the petitioners to the board of commissioners of Washington county from that part of the decision refusing to open the proposed road through section 16. No appeal was taken from that part of the decision of the commissioners of the good road district granting the opening of such road through the south half of section 9.

The matter was heard before the board of county commissioners of Washington county, and said board reversed the decision of said good road commissioners opening the part of said proposed road through section 9, and affirmed its decision refusing to open that part of the road in section 16. An appeal was taken from said order of the board of county commissioners to the district court, and there the case was tried de novo. The district court sustained the decision of the board of county commissioners, and entered judgment dismissing the appeal. This appeal is from that judgment.

south half of section 9; hence the board of county commissioners had no jurisdiction in the matter. Regardless of that fact, the board of county commissioners set aside the order of the good road commission in locating a road through the south half of said section 9. Since it had no jurisdiction to vacate an order that was not appealed from and properly brought before it, the order of the good road commission was not vacated by the decision of the county commissioners.

Plaintiff appealed from the entire order of said board to the district court, which upon a trial de novo sustained the action of the board of county commissioners.

[2] The question is raised as to whether there is any appeal from the order of the board of county commissioners in this matter. However, we conclude that under the provisions of section 1950, Rev. Codes, .an appeal may be taken from any act, order, or proceeding of the board of county commissioners by any person aggrieved thereby. The good road commission under the law has certain discretion in the laying out of public highways, but their action in that regard may be reviewed on appeal to the county commissioners, and the action of the county commissioners may be reviewed on appeal to the district court. That is the procedure that has been followed in this case.

[3] The question, then, presented for determination, is whether the district court erred in denying said petition in its entirety, or

Several errors are assigned, the first of which is that the board of commissioners of good road district No. 1 erred in refusing to grant the petition for a public road through the north half of said section 16; second, that the board of county commission- at all. We have carefully read the evidence ers of Washington county erred in reversing the order of the commissioners of the good road district granting the petition of appellants for a public road through the south half of section 9, and also in denying the petition for a public road through the north

in this case, and it clearly appears to this court that the district court did not err in holding that the petitioners were not entitled to have any part of the road petitioned for declared a public highway, and we think the action of the good road commission ought to

be sustained in establishing the proposed | action, and that this action is not an action highway through the south half of section 9, and in denying said petition as to establishing the proposed highway through the north half of section 16. As above stated, the county commissioners had no jurisdiction to set aside the order granting said petition so far as the highway through section 9 was concerned, and for that reason the district court had no jurisdiction in said matter.

(Supreme Court of Idaho. Nov. 20, 1915. with said placer mining claims. The action Rehearing Denied Dec. 29, 1915.)

3. CORPORATIONS 661-FOREIGN CORPORA-firmative allegation to the effect that the TIONS-ACTION TO QUIET TITLE-RIGHT TO plaintiff corporation had failed to comply MAINTAIN-COMPLIANCE WITH STATUTE. with the laws of the state, and therefore had Held, that the evidence shows that the no legal capacity to bring and maintain this plaintiff corporation had complied with the provisions of said statute prior to the time of pro-action, and as a further defense alleged an curing title to the mining claims involved in this abandonment of said claims by the plaintiff

corporation, and uninterrupted possession of not complied with the laws of this state govI said mining claims and property since the erning such corporations, and had no legal 1st day of September, 1912, and that since status in the courts of this state at the time the 31st of March, 1910, the defendant the suit was instituted. The other error is Henkel and his wife had been the absolute that the court erred in quieting title to said and unqualified owners of the entire capital premises in the plaintiff, when the record stock of the plaintiff corporation. shows the existence of unsatisfied mortgages and judgments which were subsisting and equitable liens against the property involved. [2] The first question presented is as to whether the respondent had a legal right to bring and maintain this action, for the reason that it was a corporation organized under the laws of the state of Washington. The contention of the appellants is based upon the fact that William Curry is the designated agent of the company, and subsequent to his designation as such removed to the state of Washington and took up his residence in the town of Clarkston, which is near the border of the state of Idaho. The following facts appear from the record:

The defendant Henkel filed a separate answer, in which he denied that the mortgages set out in the complaint were paid, and alleged that he was the owner of said mortgages and of a judgment amounting to $1,114.16, which is a lien against said mining claims and property, and also alleged that he is the owner of another mortgage given to secure $225, and that said debt remained unpaid and in full force, and prayed that the complaint and supplemental cross-complaint of the plaintiff be dismissed, and that all of the rights of the several defendants as set forth in the answer in the affirmative defenses be decreed to be superior to any claim of the said plaintiff, and for such other and further relief as was just and equitable in the premises.

The plaintiff is a corporation organized in May, 1897, under and by virtue of the laws of the state of Washington, and it duly filed its articles of incorporation with the county recorder of Nez Perce county on June 4, 1907, and filed its designation of agent, and desig

Defendants M. O. Reed, Frank K. Bernard, John Groves, William Bush, and Minnie F. Walker answered, denying the material allegations of the complaint, and set up defens-nated therein William Curry, of Orofino, Nez es similar to those set up in the answer of said Clearwater Mining Company, and prayed that all of the rights of said answering defendants as set forth in their affirmative answer be decreed to be superior to any claim of the plaintiff.

Upon the issues thus made the cause was tried before the court without a jury, and finding of facts, conclusions of law, and decree and judgment were entered in favor of the plaintiff, substantially quieting the title to said mining claims, water rights, and property in the plaintiff corporation.

[1] We are met at the beginning with motions to strike the transcript from the files and to dismiss the appeal, on the ground that the transcript was not prepared within the time provided by law and the rules of the court. Both motions are based on the same ground, to wit, that more than 40 days elapsed between the date of the service of the notice of appeal and the filing of the transcript and the service of the stenographer's transcript. Upon the authority of Fischer v. Davis, 24 Idaho, 216, 133 Pac. 910, both motions are denied. Also see Coon v. Sommercamp, 26 Idaho, 776, 146 Pac. 728.

Perce county, as its authorized agent in the state of Idaho. The record also shows that the Junction Mining Company acquired title to the placer mining claims involved in this action on January 31, 1908, and the trial court found that, at the time it accepted and received the deeds of conveyance conveying said placer mining claims to it, it had fully complied with the laws of the state of Idaho relative to foreign corporations, and also that said deeds of conveyance were valid, and found that the plaintiff had caused the assessment work on each and all of said mining claims to be done since it acquired title thereto, and we think that said findings are fully supported by the evidence. The evidence shows that said Curry, who is the designated agent of the plaintiff corporation, removed to the state of Washington in 1909; that Curry thereafter resided at Clarkston. in Washington, very near the town of Lewiston, and was frequently in the state of Idaho; that he never had resigned as the agent of the plaintiff, and did not notify the secretary of state of his removal, and had never notified the officers of the company that he had removed to the state of Washington.

It is next contended that the appellants' [3] There is nothing in the first contention brief contains no enumeration of errors re of appellants, to wit, that the plaintiff had lied upon, as provided by rule 45 of the rules failed to comply with the laws of the state of this court. After said motion was made of Idaho applicable to foreign corporations. the court permitted the appellants to insert The respondent in this action is not seeking in their brief their assignments of error. to enforce a contract, and so far as the recIn the first three assignments it is contended ord shows it never had contractual relations that the court erred in entering judgment with the appellants, unless it was with the and in quieting the title to said mining claims in the plaintiff, since it appears that the plaintiff is a foreign corporation, and had

man Henkel, who was plaintiff's manager for some years. The plaintiff is attempting by this action to protect the title to its property