About 45 years ago respondent and others constructed a canal for the purpose of conducting water to their lands for the irrigation thereof. They continued to own and operate the canal and to irrigate their lands with water conducted through it until 1904 when they formed a corporation, for convenience in its operation, which became the owner of the canal and has since continued to own it and to deliver water from it to the lands of those entitled thereto. Respondent is the owner of a quarter section of land which the canal approaches from a northeasterly direction, intersecting the east line a short distance north of the southeast corner thereof. Water for the irrigation of that land is, and during the times above mentioned has been, delivered to it through three headgates. That numbered 1 is located at a point on the canal about 1,100 feet east from the northeast corner of the land and the water delivered thereby is conducted through a ditch, or lateral, from the canal to the northerly portion of the farm. Headgate numbered 2 is located on the canal at a point approximately 1,000 feet south and 475 feet east of the northeast corner of respondent's land, and water to irrigate the central portion of his farm is conducted thereto through a ditch, constructed for that purpose, west from that headgate to the land. Headgate numbered 3 is located on the canal at the east line of respondent's land, approximately 110 feet north from the southeast corner thereof, and water therefrom is used to irrigate the southerly portion of the farm. These headgates are so located as to deliver water to three high points, or ridges, on respondent's farm and make convenient the efficient irrigation thereof. It is appellant's purpose in this action to procure a decree authorizing it to discontinue the use of headgates numbered 2 and 3 and to *Page 101 require respondent to receive all the water used by him in the irrigation of his farm through headgate numbered 1. Judgment was for defendant, and plaintiff has appealed therefrom.
The evidence shows it to be to the advantage of appellant to close headgates numbered 2 and 3 and to deliver all the water for the irrigation of respondent's farm through headgate numbered 1. To do this would make necessary the construction and maintenance of a ditch upon and along the east side of the farm which would occupy and use approximately three acres thereof. Appellant has offered to construct this ditch at its own expense, but has not offered to maintain it nor to pay respondent for the land to be occupied by it.
The trial judge made the following findings of fact, which are sustained by the evidence:
3. "That because of the original construction by him of his said headgates and lateral ditches, and because of his continuous use thereof since said time, the defendant has acquired, and now has, a right in the nature of an easement to the use of each of said ditches and headgates, for the purpose of taking and carrying his water from the Randall Canal to the high points on his land, and that the plaintiff is without right in law or equity to change the points of diversion or to interfere with any or either of said headgates or ditches of the defendant, unless such change would be made after substituting and providing for a method of diversion without injury or expense to him which would be equally efficient and serviceable to the defendant, and without any extra burden to the defendant, and without injury to him; that the plaintiff's offer to use a portion of the defendant's land and to construct a ditch thereon at its expense for the use of the defendant is not without injury to the defendant."
4. "That the Court is without jurisdiction or authority in this case to compel the defendant to accept the proposed offer of the plaintiff to use any part of the defendant's land and change his method of diverting his water, in the manner proposed by the plaintiff." *Page 102
5. "That no question or right of eminent domain or compensation for injury done is before the court in this case, and that the remedies provided by the statute in such cases cannot be applied in this case, under the present pleadings."
6. "That the plaintiff is not entitled to any relief under the pleadings and evidence submitted in this case."
The ditches, by means of which water is diverted from the canal and conveyed to respondent's farm, are appurtenant thereto and are within our statutory definition of real property. (I. C. A., sec. 54-101; Welch v. Garrett, 5 Idaho 639,51 P. 405; Ada County Farmers' Irr. Co. v. Farmers' CanalCo., 5 Idaho 793, 51 P. 990, 40 L.R.A. 485; Niday v. Barker,16 Idaho 73, 101 P. 254; Brunzell v. Stevenson, 30 Idaho 202,164 P. 89; Dukes v. Canyon Hill Ditch Co., 38 Idaho 696,224 P. 85; In re Department of Reclamation, 50 Idaho 573,300 P. 492; 67 C.J. 1398. sec. 1066; Kinney on Irrigation and Water Rights, 2d ed., secs. 1003 and 1017.)
These ditches are property of respondent in the sense and to the extent that he cannot be deprived of the use and enjoyment of them without compensation, nor by tendering compensation to him in the absence of allegation and proof of sufficient facts to justify the exercise of the power of eminent domain. (Tobey v. Bridgewood, 22 Idaho 566, 127 P. 178; Nampa Meridian Irr. Dist. v. Briggs, 27 Idaho 84, 147 P. 75;Colgrove v. Hayden Lake Irr. Dist., 40 Idaho 489, 235 P. 434.)
The question of appellant's right to exercise the power of eminent domain is not embraced within the issues framed by the pleadings. Therefore, it was not before the trial court for decision nor is it here for review. (I. C. A., Title 13, chap. 7; I. C. A., sec. 7-704; Brunzell v. Stevenson, 30 Idaho 202,164 P. 89.)
The judgment is affirmed. Costs are awarded to respondent.
Ailshie, J., concurs.