Male v. Leflang

Citations

• 7 Idaho 348
• 63 P. 108
• 1900 Ida. LEXIS 62

Syllabus

<p>Ditch and Water Right — Mortgage—Agreement to Cancel Mortgage by Deed With Right to Enlarge Ditch. — The defendants having purchased a tract of land, together with a certain ditch and water rights upon which plaintiffs held a mortgage, default being made in the payments secured by the mortgage, the attorney of plaintiffs, to avoid delay and expense of foreclosure, agreed with the defendants if they would convey the title to said property to plaintiffs, he, the agent, would give them the right to enlarge the said ditch, so as bring the water to the tract of land subsequently purchased by the defendants, and through which said ditch ran and to take water therefrom for the purpose of irrigating such land. Defendants, having executed the deed, proceeded to enlarge said ditch and utilize said water as agreed. In an action by plaintiffs to enjoin, defendants from using said ditch or water, held, that under the provisions of section 6008 of the Revised Statutes, the defendants were entitled to enlarge said ditch and utilize said waters as agreed. Case of McGinnis v. Stanfield, 05 Pac. 1020, distinguished.</p> <p>(Syllabus by the court.)</p>