Evening capital news. (Boise, Idaho) 1901-1927, 1912-09-21
WATER RIGHT IS
INVOLVED IN A
COURT DECISION
Judge Carl A. Davis Is A.
firmed in the Case of EN-
ma L. Paddock Versus
Asaph D. Clark.

The supreme court handed down an
important decision today In the case of
Emma l.. Paddock versus l.saph ID.
Clark. involving water rights, appur-
tenances and conveyance of land, I'M
which action was instituted to quiet
title to water rights. and Judge Carl A.
Davis of the Third judicial district
! court for Ada county Is affirmed. Judg-
ment was given in the lower court for
Clark. The opinion is written by Chief
Justice Ailshie concurrIng. Justice
Ailshie concurs In a short separate
opinion.
Chief Justice Stewart states the facts
in the following language:
This action was brought by the ap-
pellant against the respondent to quiet
title to rs inches Of water Of the Boise
river going through the New York
canal and the Penninger lateral, and
used and applied to a beneficial use up
on lands owned by the respondent
prior to the time such land was con-
veyed by the respondent to the appel
liant. Judgment was rendered for re-
spondent. phis appeal Is from the
judgment and from the order denying
| a motion for a new trial.
1.-THE controversy arises out of the
construction to be placed upon a deed
| conveying title to real property made
by respondent to appellant. The ap
pellant contends that the execution and
delivery of such deed convey
| ed the title to all the water used
| upon said land prior to the making Of
such conveyance, whether such water
| nj; vl,t 11a Il to-,
deed, or Is described as an appurten-
| ance to the land described. While the
respondent contends that the deed de-
scribes the property conveyed spe-
officially. and that the language of the
deed and the intent of the parties ex-
Guided all water rights not described.
What Trial Court Found.
| THE trial court upon the proof found
that the defendant was the owner of
certain water right TO the perpetual
use Of rs inches of water measured
under a four-inch pressure, con-
| tinuous flow of the water in the New
York canal. and that such water had
been used for several years on the land
sold by the defendant to the plaintiff;
that such water right was exclusive of
and from the 35 inches Of water from
| the Ridenbaugh canal and the 1872
shares of paid UP water stock of the
New York canal. limited, mentioned in
the deed made by the defendant to the
appellant, dated the eleventh day of
| August, 1899; that the rs inches Of
| water in controversy never had been
| represented by shares Of stock in the
| New York Canal company, nor other
| wise than by deed of conveyance of
real property, du'y executed, acknowi-
| edged and recorded, and that since the
acquisition by the defendant of said
water right, and for more than five
years prior to and up to and including
| the execution of said deed of Aug. 12,
| 1909, said water has been used upon the
| land described and so conveyed and
had become an appur,enance thereto,
| and that the lands are arid and require
water to be artlficially applied to cul-
tivate the same; that at the time the
| sale was made to the plaintiff, the APP
| pellant's agent, who negotiated said
sale on behalf of the plaintiff, under
stood that six-tenths of an inch of
water per acre was to be conveyed with
said land, and that he agreed thereto,
| and that 1t was understood by both
the plaintiffs agent and the defendant
! that the water to be conveyed with the
land was that which was specifically
mentioned in the said deed, and the os-
crow agreement; that the rs inches of
water in controversy which are not
| specifically mentioned in said deed was
not intended to be conveyed by said
/ decd"
Courts Conclusions.
4 Concluding his opinion Chief Justice
Stewart says:
i I'VE think the rule is well recognized
in this state that water applied to land
for a beneficial use in the cultivation
and development of the same becomes
appurtenant to the land and where
such land is conveyed that the water
right appurtenant thereto passes with
the conveyance OF the land, where
nothing to the contrary appears, but
where such conveyance specifies the
j specific water conveyed in the body Of
the deed in connection with the de-
scription of the land, 1t Is a csear and
distinct declaration of the intention OF
the parties to the contract OF convey
ance to pass title to the land, and like
wise the water rights described, and
that no other water appurtenant to the
land Is intended to be conveyed; and
that the provision in the deed to-
gether with all and singular
appurtenances thereto was not In
tended by the parties to include other
water rights in addition to those spe-
officially described.
''There are other errors assigned up
on which a reversal is asked. but after
a careful examination of the same we
, find no merit in such alleged errors
The Judgment Is affirmed. Costs
awarded to respondent"
Justice Aiishie concurs Separately.
Concurring separately in the opinion
Justice Ailshie says:
Il concur in the conclusion reached
When the several provisions of the
deed are considered and construed to-
gether. think It may fairly be said
that tho parties agreed and contracted