I concur in the affirmance of the judgment.
In my opinion there is only one question presented necessary for consideration and determination on this appeal, namely, whether the excess irrigation water from appellants' forty acre farm actually flowed down upon respondent's farm continuously, adversely, and uninterruptedly for a period of five years, and that by reason thereof appellants acquired a prescriptive right or easement to continue to have their excess irrigation water flow down upon respondents land.
Upon a conflict in the testimony the court found that the plaintiffs-appellants "never, at any time, for any continuous period of five successive years prior to their commencement of this action, either openly, uninterruptedly, notoriously, exclusively, adversely or actually, or under claim of right, flowed or discharged any of their excess or waste irrigation water from the irrigation of their said tract of land, upon, over or across the said described land of defendant herein", and concluded, as a conclusion of law, that the plaintiffs-appellants "did not have, nor own, and are not the owners of, any right or easement or right-of-way, over or across the said land of the defendant, to have any excess or waste irrigation water from their land flow upon or across defendant's land through said swale, and all claim of plaintiffs to an easement or right-of-way for such purpose, or any purpose, across the land of the defendant, is without right, and the plaintiffs are not the owners of any right of any nature over or across defendant's land which is appurtenant to plaintiffs' land."
If appellants did not, as the court found, acquire an easement or right by prescription to run their waste irrigation water across the land of respondent for five years continuously, openly, notoriously, and adversely, under a claim of right, no right by prescription was acquired by appellants.
The court's findings are supported by the evidence, under the rule announced in Edwards v. Tenney, 65 Idaho 784,154 P.2d 143; Johnson v. Gustafson, 49 Idaho 376, 288 P. 427;Consolidated Etc. Min. Co. v. Morton, 32 Idaho 671, 187 P. 791, said cases holding, in effect, that where findings of fact are made upon conflicting evidence, said *Page 484 findings will not be disturbed upon appeal where there is substantial evidence to support them.
Wherefore, appellants having wholly failed to establish a case of adverse possession under the provisions of sec. 5-210, I.C.A., the judgment must be affirmed, and it is so ordered. Costs to respondent.