Mandamus by Felix Burns against Welling Napton, judge of the Third judicial district. Alternative writ quashed, and proceeding dismissed.

C. M. Parr, for plaintiff.

PIGOTT, J. Mandamus-Original. This is a proceeding in mandamus. Upon application of the plaintiff, an alternative writ was issued commanding the defendant, as judge of the district court of Powell county, to settle and sign a bill of exceptions in the case of Burns against Kelly et al., or show cause why he did not do so. The defendant answered, and the cause has been submitted upon the application and answer. On these the plaintiff demands a peremptory writ. We have not had the benefit of any argument, oral or written, in behalf of the defendant.

So far as it is deemed necessary to state them, the facts are these: On May 8, 1901, judgment against the plaintiff was entered in Burns against Kelly et al. On May 9th the plaintiff perfected an appeal from the judg ment. On May 15th the parties to that action stipulated in writing that the plaintiff should have 20 days' additional time within which to "prepare, serve, and file statement on appeal." On June 3d the plaintiff served on the defendants a draft of his proposed bill of exceptions, and on June 4th delivered it to the clerk of the district court. On June 11th the defendants served on the plaintiff their proposed amendments, expressly reserving the right to object upon several grounds to the settlement of the bill. On June 14th the plaintiff served notice that the proposed amendments would not be adopted. The plaintiff did not, within 10 days after the service of the amendments, either present the proposed bill and amendments to the judge, or deliver them to the clerk for the judge. On June 25th, 14 days after the amendments were served, counsel for the plaintiff notified the defendants by letter that he had written to the "judge asking if he will settle the bill of exceptions in the case of Burns against Kelly et al.," on July 1st. The matter of the settlement coming on to be heard on July 1st, the defendants objected to a settlement upon many grounds, one being that the plaintiff did not, within 10 days after service of the proposed amendments, present the bill and amendments to the judge upon five days' notice to the defendants, nor deliver them to the clerk for the judge within 10 days after the service of the amendments. The judge sustained the objections, and refused to settle the bill.

Section 1155 of the Code of Civil Procedure provides: "When a party desires to have exceptions taken at a trial settled in a bill of exceptions, he may, within ten days after the entry of judgment, if the action was

of the entry of judgment, if the action were tried without a jury, or such further time as the court in which the action was pending or a judge thereof, may allow, prepare the draft of a bill, and serve the same, or a copy thereof, upon the adverse party. Such draft must contain all the exceptions taken upon which the party relies. Within ten days after such service the adverse party may propose amendments thereto and serve the same, or a copy thereof, upon the other party. The proposed bill and amendments must, within ten days thereafter, be presented by the party seeking the settlement of the bill, to the judge who tried or heard the case, upon five days' notice to the adverse party, or be delivered to the clerk of the court, or judge. When received by the clerk he must immediately deliver them to the judge, if he be in the county; if he be absent from the county, and either party desire the papers to be forwarded to the judge, the clerk must, upon notice in writing of such parties, immediately forward them by mail, or other safe channel; if not thus forwarded, the clerk must deliver them to the judge immediately after his return to the county. When received from the clerk, the judge must designate the time at which he will settle the bill, and the clerk must immediately notify the parties of such designation. If no amendments are served, or if served are allowed, the proposed bill may be presented, with the amendments, if any, to the judge or referee, for settlement without notice to the adverse party."

*

*

It is the settled law in this jurisdiction that the party seeking the settlement of a bill, where all the amendments are adopted by him, has a reasonable time within which to present the bill and amendments for settlement, and is not limited to the 10-day period prescribed for cases where amendments are rejected. Woodard v. Webster, 20 Mont. 279, 50 Pac. 791. If, however, the amendments are not agreed to, the party seeking settlement must, unless the time be enlarged or sufficient excuse for delay be shown, do one of two things within 10 days after the service of the proposed amendments: First, he must present the proposed bill and amendments-not one, but both-to the judge upon five days' notice to the adverse party; or, secondly, he must deliver the proposed bill and amendments-not one, but both-to the clerk of the court for the judge. Such is the plain language and meaning of section 1155, supra. In the case at bar the plaintiff neither presented the proposed bill and amendments to the judge (on notice or without notice), nor delivered them to the clerk, within 10 days after June 11th, which was the day on which the amendments were served. We remark, in passing, that if the delivery of the proposed statement on June 4th had been followed by a delivery of the proposed amendments within the 10 days suc

ceeding the service of them, with the avowed intention on the part of the plaintiff to leave both the statement and amendments for the judge, the statute might have been satisfied in the respect mentioned. The delivery of the amendments to the clerk for the judge would doubtless be tantamount to a new delivery of the statement. It does not appear that the plaintiff ever delivered the amendments to the clerk. It does not appear that there was any extension of time agreed upon between the parties or granted by the court, nor did the plaintiff offer any excuse for his omission. It was therefore not the duty of the judge, the defendants objecting, to settle the bill proposed. It is hardly needful to cite cases in support of this conclusion. There are many such: Harding v. McLaughlin, 23 Mout., at page 336, 58 Pac., at page 865; Henry v. Merguire, 106 Cal. 142, 39 Pac. 599; Connor v. Road Co., 101 Cal. 429, 35 Pac. 990; Tregambo v. Mining Co., 57 Cal. 501; Higgins v. Mahoney, 50 Cal. 444.

In the consideration of this case we have assumed that the stipulation of May 15th with respect to the preparation and service of a "statement on appeal" was sufficient to authorize the service of the proposed bill of exceptions, and that the letter of June 25th was, in form, sufficient notice of an intended presentation of the bill and amendments for settlement. These questions we do not decide, but expressly reserve, the determination of either being unnecessary.

The alternative writ of mandate is quashed, and the proceeding is dismissed. Dismissed.

BRANTLY, C. J., and MILBURN, J., con

cur.

(8 Idaho, 272)

HALL et al. v. BLACKMAN et al. (Supreme Court of Idaho. Jan. 31, 1992.) WATER RIGHTS-LOCATION-PRESCRIPTIVE

RIGHTS-POSSESSORY CLAIMS-REAL

ESTATE-DESCENT.

1. Where E. & E., as copartners, procured title to 480 acres of adjoining land (the former to 320 acres, and the latter to 160 acres), and diverted and appropriated water sufficient to irrigate the same, and conducted such water upon said land in 1872, and in that year put 200 acres of the land that stood in the name of the former in cultivation, and thereafter, until the year 1886, did not increase the acreage of cultivated land, and in the latter year dissolved partnership, and divided their land and water right equally, the former getting all of the cultivated land and the latter the uncultivated, held, that the right to the use of water for the irrigation of all of said land had been acquired, and should date, from the first appropriation of such water, to wit, March 1, 1872.

2. Under the facts, held, that the right to the use of water suflicient for the irrigation of the land not actually put into cultivation became appurtenant thereto, and was transferred by deed conveying such land and its appurtțe

nances.

3. Under the law of this state, in order to obtain a prescription right to the use of wa

ter, the use on which such claim is based must be adverse to the rights of the owner, and must be accompanied by all of the elements necessary to constitute adverse possession and

use.

4. A prescriptive right to the use of water cannot be acquired by the use thereof with the consent or permission of the owner, or where the statute law requires him to let others use it.

5. The provisions of section 12 of an act entitled "An act providing for the appropriation and distribution of water." etc., approved Feb. 25, 1899 (Sess. Laws 1899, p. 380), are prospective, and are not intended to forfeit vested rights.

6. By the provisions of sections 16 and 2825, Rev. St., possessory rights are made real estate, and may descend to the heirs of a deceased locator.

7. Sections 4552 to 4556, inclusive, Rev. St., give the right of action to recover public lands not inclosed and cultivated, and have no application to the facts of this case, while the provisions of section 4041, Rev. St., have some application.

8. A settler upon public lands of the United States may appropriate water and acquire the right to the use thereof upon such lands, and such right may be sold by him, or, in case of his death, the right descends to his heirs. (Syllabus by the Court.)

Appeal from district court, Elmore county; C. O. Stockslager, Judge.

Action by Adin M. Hall and others against W. H. Blackman and others. Judgment for plaintiff's, and defendants appeal. Modified.

Hawley & Puckett and Wyman & Wyman, for appellant Blackman. W. C. Howie, for appellants C. F. Ross and Ida Ross. W. E. Borah and E. M. Wolfe, for appellee Wilson. N. M. Ruick, for appellee Adin M. Hall.

SULLIVAN, J. This action was brought to determine the respective rights and priorities of the plaintiffs and defendants to the use of the waters of Bennett creek, Elmore county. The action was commenced by Adin M. Hall and W. E. Wilson, as plaintiffs, against William H. Blackman, Charles Geerhart, Charles F. Ross, Mrs. Ida Ross, Benjamin Sparlin, John McCune, S. B. Blackwell, and M. L. Davis, as defendants, and thereafter, by order of the court, S. B. Blackwell appeared as a plaintiff. The pleadings put in issue the rights and priorities of the respective parties to the use of certain specified quantities of the waters of said stream. Judgment and decree was entered fixing the priority of the respective parties and amount of water to which each was entitled. Three appeals were taken from the orders of the court overruling three several motions for a new trial. The first, in order of time, was taken by defendant Wm. H. Blackman, and in that appeal the plaintiffs, except Blackman, and all defendants, were made respondents. The second appeal was taken by defendants Charles F. Ross and Mrs. Ida Ross, in which all other defendants and the plaintiffs are made respondents. The third appeal was taken by the plaintiff W. E. Wilson and his coplaintiffs, and all of the defendants are made respondents.

We shall consider the errors relied upon in each of the appeals in their order above stated. The first is the appeal of Wm. H. Blackman. The court decreed to him three inches of water to date from March 1, 1872, and 288 inches to date from March 1, 1886. No complaint is made of the quantity of the water allowed to said appellant, but it is contended that the court erred in fixing the date of his right to the use of said 288 inches of water as beginning on March 1, 1886, and contends that said right should date from March 1, 1872. The record shows, among others, the following facts: That David B. Ethel and Fielding Ethel, hereafter referred to as "Ethel Bros.," formed a partnership in 1871 for the purpose of acquiring and cultivating lands in the vicinity of Bennett creek, Elmore county, which partnership continued until the year 1885. That at the time of the dissolution of the partnership they owned 480 acres of land, the legal title to 320 acres of which was in Fielding Ethel, and the legal title to 160 acres thereof was in David B. Ethel. Said lands are now owned by the plaintiff W. E. Wilson and appellant Blackman. That from the year 1872 about 200 acres of said land were cultivated by said Ethel Bros., as copartners, and the products thereof became partnership property. That in 1872 said Ethels, as copartners, appropriated 500 inches of the waters of said Bennett creek for the reclamation and irrigation of said 480 acres of land, and by means of dam and ditches of sufficient size and capacity diverted and conveyed said water to and upon said land, and used the same thereon, until 1886, when said copartnership was dissolved. That by deeds of conveyance the Ethels divided said lands between themselves, and also agreed that each should have and own the right to the use of onehalf of the water so diverted, as aforesaid. The plaintiff Wilson now owns the land that Fielding Ethel retained in the division between the copartners, and the appellant owns the lands that fell to David B. Ethel thereunder. It appears that in the division of said land an old stage road that ran across it was made the dividing line, Fielding Ethel getting all of the land north of that road and David B. all south thereof. That after the dissolution of the copartnership the former partners and their successors, the plaintiff Wilson and the appellant Blackman, continued to use said water, dividing the same equally between themselves, each taking one-half thereof up to about time this suit was brought. Under that appropriation appellant claims 250 inches of water of said stream dating from October, 1871; also 15 inches of the flow of certain springs arising in the lands of plaintiff Wilson; also 240 inches of the water of said stream dating from 1882 upon a second tract of land and 160 inches thereof for use on a third tract. It is contended that appellant Blackman, so far as his earliest right is concern

The

One

ed, is entitled to have that right dated as early as the right of plaintiff Wilson, for the reason that they are the successors to the rights of Fielding Ethel and David B. Ethel, who were copartners in the appropriation and use of said 500 inches of water. record shows that all of the cultivated land, so owned by Ethel Bros., was on the part that fell to Fielding Ethel under the division. The record also shows that all of said lands could have been irrigated from said ditches, as the Fielding Ethel tract was above the tract of David B. Ethel, and that the water from said ditches not used in the irrigation of the upper or Fielding Ethel tract flowed down on the David B. Ethel tract through a depression or slough that ran across said land. After the dissolution of said copartnership in 1886 David B. Ethel and others jointly made a location of several hundred inches of the water of said creek, and constructed a ditch in which to convey the water so located upon the David B. Ethel land, and on other lands owned by his co-owners in said ditch. After said division David B. Ethel put much of his said land in cultivation, and raised hay and grain thereon until his death, which occurred about 1890. A. T. Huffaker was appointed administrator of his estate, and by order of the probate court sold the said land to the appellant Blackman. Plaintiff Wilson, in 1893, purchased the Fielding Ethel land, and from that time to 1898 he and appellant Blackman divided the water equally between them. The deeds exchanged between the Ethels on the dissolution of their partnership do not particularly name the water rights, but do convey the land and appurtenances. There can be no doubt from the evidence, that it was the intention of Ethel Bros. in the division of their partnership property to divide their water right equally between them. Several witnesses testify that that was the agreement between them. James Stout testified on the trial as a witness. He testified that he was called on to draw the deeds above referred to, and testified, in part, as follows: "My instructions from them (Fielding Ethel and David B. Ethel) was to divide the land, improvements, and water rights equally, and if it was not done it was because I hadn't the knowledge. That is what I thought I did. I drew both deeds. I did not draw any other papers with reference to the water. The only conveyance was the two deeds. They wanted me to divide it all equally between them." From the evidence contained in the record there can be no doubt that the Ethels intended to divide the water equally between them, and witness Stout intended by said deeds to accomplish that result. After the deeds were drawn and exchanged in 1886 Fielding and David B. Ethel did divide such water equally between them as long as they remained the owners of said lands. Not only that, but plaintiff Wilson, the successor of Fielding

Ethel, and the appellant, as the successor to the interest of David B. Ethel, continued from 1893 to 1898 to divide said water equally between them, thus recognizing the agreement between the Ethels in regard to the equal division of said water. Regardless of those facts counsel for plaintiff Wilson contend that, as not more than three inches of water was actually used in the irrigation of the land that fell to David B. Ethel in said division, only three inches of water became appurtenant to said land, and no more than that amount was conveyed to appellant Blackman. We are unable to agree with that contention under all of the facts of this case. The Ethel Bros. jointly appropriated 500 inches of water for the irrigation of said 480 tract of land, and the question here involved is the same as if said land and appropriation of water was owned and made by one person. The evidence shows that said amount of water was diverted by means of said ditches each succeeding irrigating season, and taken upon said land, and applied to the irrigation of about 200 acres thereof, up to 1886, when more of said tract was put into cultivation by David B. Ethel after the partnership division, and although they had but about 200 acres of said land in cultivation from 1872 to 1886 they preserved their right to the use of sufficient water to irrigate all of said tract that is susceptible of irrigation, and for that reason the rights of each, as shown by the evidence, must date from March 1, 1872, so far as water for the irrigation of the said 480 acres of land is concerned. This would not affect the date of Wilson's right to the use of water for the irrigation of land that formerly belonged to the partnership, which land he purchased from Fielding Ethel, but it requires a change in the date of the right of Blackman to the use of water in the land which he purchased from David B. Ethel, and which had belonged to said copartnership. The use of such water by Fielding and David B. Ethel was in common during the existence of their copartnership, although used upon the land entered by Fielding Ethel (as to the cultivated land) and the continuous use by each of those parties and their successors in interest of one-half of the water until shortly before this action was brought clearly establishes the right of plaintiff Wilson and appellant Blackman as of the same date to the amount of water required for the proper irrigation of the land which formerly belonged to said copartnership. The water appropriated by Ethel Bros., as copartners or tenants in common, for the reclamation and irrigation of said 480 acres of land attached to and became appurtenant to all of said land, or the right to the use thereof became so appurtenant. The right to the use of water sufficient to irrigate the whole of said tract of land was preserved by the construction of ditches of sufficient size and capacity to carry onto said land a

sufficient quantity of water for that purpose, and by thus diverting and taking that amount of water thereon. The evidence clearly shows that that was done, and that said amount of water was so conducted each successive irrigating season whenever said stream carried that quantity of water. It is contended by counsel for appellant Blackman that Blackman had used one-half of the water diverted by Ethel Bros. for more than five years without objection by plaintiff Wilson, and for that reason he had acquired a prescriptive right thereto by adverse user. In order to obtain a prescriptive right to the use of water, the use upon which such claim is based must be adverse to the rights of the owner. It must be accompanied by all of the elements necessary to constitute adverse possession and use. The claimant must have used such water continuously, uninterruptedly, and adversely for a period of five years. The use of such water must be an invasion of the rights of the person against whom such right is sought to be established, such as would give a cause of action in favor of the latter. In Long on Irrigation (section 90) the author says: "No adverse user can be initiated until the owners of the water right are deprived of the benefit of its use in such a substantial manner as to notify them that their rights are being invaded." It follows from the rule there stated that a prescriptive right to the use of water cannot be acquired by the use thereof with the consent or permission of the owners, and as under the law of this state it is made a misdemeanor for one who has the right to the use of water to waste it, and the law requires him to permit it to flow down the stream in case his necessities for the time do not require its use, thus it is made by the law difficult to acquire a prescriptive right to the use of water. For, if the law requires the one entitled to the use of water to let others use it in case he may not, for the time, need it, they may have its use under the provisions of the law which commands the consent of the owner. This law does not apply to real estate. The owner of real estate need not use it, and in case he does not he is not required by law to let others use it, but in the case of the right to use water the law makes it a misdemeanor to waste it, and compels the one who has the right to the use of it to let others have it in case his necessities do not require its use. From these observations it will be seen that it is difficult to obtain a prescriptive right to the use of water under our law as it now stands. To do so the one entitled to the use of the water must require or need its use, and his right to such use must be invaded, and the one seeking to establish a prescriptive right must invade such right openly, notoriously, adversely, and continuously under a claim of right for the period of five years under the laws of this state,