(dissenting).
I am unable to follow the reasoning of the majority, or the legal conclusions reached.
The parties to this action own contiguous, and adjoining lands which are divided by a common east and west boundary line. The ditch, constructed by the predecessor in interest of plaintiff, runs diagonally across defendant’s land and at the common, boundary enters land now owned by plaintiff.
On competent substantial and uncontradicted evidence, the trial court found:
“That all of said land [i.e. the separate parcels owned by the litigants] was open, unenclosed, uncultivated, unoccupied sagebrush land prior to 1938;. that in the year 1938 one Gene Tobin, the plaintiff’s predecessor in interest,, cleared the parcel now owned by the plaintiff and constructed a lateral ditch diagonally across what is now the defendant’s parcel of land, which ditch was constructed to carry water to the plaintiff’s parcel of land; that at the time of the construction of said ditch across the land now owned by the defendant, said defendant’s land was open, unenclosed, unoccupied, uncultivated sagebrush land without any improvements thereon of any kind.
“That the defendant acquired his parcel of land above described in the *183year 1953 at which time defendant’s land was open, unenclosed, unoccupied sagebrush land, and in the fall of the year 1953 he cleared the same of sagebrush and proceeded to fence, plow and level the same and at that time discovered for the first time the lateral ditch constructed by the plaintiff across his property; that the defendant then filled in said ditch.
“That plaintiff’s use of the ditch across the unenclosed and unoccupied property, now owned by the defendant, from 1939 to 1953 was not such open and notorious use by plaintiff as would reasonably impart notice of such use to defendant or his predecessors in interest; that plaintiff did not establish that defendant or his predecessors in interest had any notice or knowledge of said ditch, actual or constructive prior to 1953, or that plaintiff had at any time acquired an easement to such ditch by way of purchase or condemnation, or that plaintiff or his predecessors had any license or permission to construct said ditch in the first instance, from the then owner.”
It thus clearly appears that the right to the use of the ditch to carry water which plaintiff now claims was conceived in a wilful trespass over and across open, unimproved and uncultivated lands of another. Plaintiff now claims that this trespass has ripened into a right by adverse possession and user.
Sec. 42-1207, I.C. cited in the majority opinion to sustain the conclusion reached has no application to the situation. This section refers, and can only refer, to a lawful, valid easement across another’s property. It refers to a ditch lawfully established and does not cover a situation of trespass presented in this proceeding. No right of way for a ditch having been acquired, plaintiff had no right to construct or require defendant to construct a new ditch across defendant’s land.
Title by adverse possession cannot be acquired over and across unimproved, uncultivated, unenclosed lands in the manner here attempted. No authority is cited in the majority opinion to sustain such a conclusion, and none is cited in the brief of appellant.
I think the rules covering the situation presented are found in the following citations of authority: 17A Am.Jur. 683, Sec. 71; 19 C.J. 958, Sec. 181; 28 C.J.S. Easements § 68, p. 734.
In 17A Am.Jur. 683, Sec. 71, the author states the rule as follows:
“The prevailing principle seems to be that while a way may be acquired by user or prescription by one person over the uninclosed land of another, mere use of the way for the required time is not, as a general rule, sufficient *184to give rise to the presumption of a grant. Generally therefore, some circumstances or act, in addition to, or in connection with, the use of the way, tending to indicate that the use of the way was not merely permissive is required in such case to establish a right by prescription.”
In 2 C.J.S. Adverse Possession § 41, p. 554, the author, with citation of authority, states the rule:
“Open, visible, and notorious possession is required where the true owner is without actual knowledge of the hostile claim.”
Again in 2 C.J.S. Adverse Possession § 45, p. 558:
“It is essential to the acquisition of title by adverse possession that the true owner shall have knowledge or notice, actual or constructive, that the possession is hostile or adverse. The true owner must have actual knowledge of the hostile claim or the possession must he so open, visible, and notorious as to raise a presumption of notice to, or knowledge by him of the adverse claim.
In the present situation plaintiff does not claim that the true owner of the land had any notice, actual or constructive of plaintiff's claimed right, or that he knew or had reason to know, of the existence of the claimed right of way prior to 1953.
An authority almost identical with the facts herein set forth is Todd v. Sterling, 40 Wash.2d 40, 273 P.2d 245.
“Public highway over private property can be acquired by prescription but claimant must prove that his use of the other's land has been open, notorious, continuous, and uninterrupted over a uniform route adverse to the owner of the land sought to be subjected, and with the knowledge of such owner when he was able, within the law, to assert and enforce his rights.”
To the same effect, see Northwest Cities Gas Co. v. Western Fuel Co., 13 Wash.2d 75, 123 P.2d 771, syl. 9, and Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W.2d 281, 46 A.L.R.2d 1135, 1138; Hester v. Sawyers, 41 N.M. 497, 71 P.2d 646, 112 A.L.R. 536; Schudel v. Hertz, 125 Cal.App. 564, 13 P.2d 1038; Schulenbarger v. Johnstone, 64 Wash. 202, 116 P. 843, 35 L.R.A.,N.S., 941; LaRue v. Kosich, 65 Ariz. 299, 187 P.2d 643.
In Hester v. Sawyers, supra [41 N.M. 497, 71 P.2d 651], the Court said:
“In this state, where large bodies of privately owned land are open and unenclosed, it is a matter of common knowledge that the owners do not object to persons passing over them for their accommodation and convenience, and many such roads are made and *185used by neighbors and others. Under the circumstances it would be against reason and justice to hold that a person so using a way over lands could acquire any permanent right, unless his intention to do so was apparent to the owner, or so plainly apparent from acts that knowledge could be imputed to him.’’
In an annotation to this case, 46 A.L.R.2d 1140, the annotator cites cases in many jurisdictions in support of the rule above announced.
The reason for the rule is very apparent. In many instances the owner of the land is not in a position to detect or prevent others from crossing his land. He would have no notice of any such adverse claim and would not be in a position to assert his rights until the statute of limitations ■had run. If the rule announced in the majority opinion is to prevail, one absent from his unimproved, uncultivated, unenclosed land could, in effect, have his land confiscated by roads, easements, right of ways, of which he had no knowledge or notice, constructive or otherwise.
In the present situation, the use to which plaintiff put defendant’s land was neither open nor notorious, and with absence of knowledge of defendant, or his predecessors in interest.
Even neighbors living in the vicinity of the ditch did not know of its existence, and it could not be seen because of the sagebrush and other growth until discovered by one actually attempting to cross it.
As no valid or subsisting easement was created or existed in a lawful manner, plaintiff would not have the right to require defendant, at his own expense to change the course of the ditch to another part of his land.
In fact, plaintiff had no water right to irrigate the twenty acres owned by him and the water which the ditch running across defendant’s land carried, if any, was waste or unused seepage water from water rights of plaintiff, or other irrrigators. For some of the years, there was no surplus water and the ditch carried no water to defendant’s land.
The discussion of compromise in the majority opinion has no bearing on the issues. If the controversy were compromised by the parties, I see no necessity of reversing the judgment and remanding the cause for a new trial.
To me the .majority opinion presents an entirely new method of acquiring title to another’s property, which is sustained by no precedent cited.
The judgment should be affirmed.