request, certain goods, wares, etc., for whichly and has been before the Supreme Court the defendant agreed to pay the sum of of Kansas many times, as appears from the $231.50, and that no part of said sum had following cases: Elder v. Dyer, 26 Kan. 604, been paid. The plaintiff, in order to avoid 40 Am. Rep. 320; Pracht v. McNee, 40 Kan. 1, the plea of the statute of limitations as a bar 18 Pac. 925; Clark v. King, 54 Kan. 222, 38 to the action, which bar was complete at the Pac. 281; Disney v. Healey, 73 Kan. 326, 85 end of four years from the 8th day of Oc- Pac. 287; Hawkins v. Brown, 78 Kan. 284, 97 tober, 1908, also alleged as follows: Pac. 479. "That less than four years before the date of the commencement of this action, to wit, on June 14, 1913, the defendant acknowledged the existence of the said debt by filing his petition in bankruptcy in the District Court of the United States for the District of Utah, and in schedule A-3 of said petition, at or about that time made, subscribed, and sworn to by the defendant, he scheduled the claim and account above set forth as a debt due from him to the plaintiff; that the defendant failed to petition for a discharge in said bankruptcy proceedings." Plaintiff prayed judgment for the amount, with legal interest from October 8, 1908. [1] The defendant appeared and demurred to the complaint upon the ground that it appeared upon the face thereof that the action was barred under the provisions of Comp. Laws 1907, § 2876, which, in substance, provides that actions belonging to the class mentioned in the complaint must be commenced within four years from the time the last charge is made. Under our statute a defendant may demur upon the ground that an action is barred. The court sustained the demurrer, and entered judgment dismissing the action, from which the plaintiff appeals. [2-4] The only error assigned is predicated upon the ruling of the court in sustaining the demurrer. Plaintiff's counsel vigorously contends that the facts, which we have set forth in full, and which are admitted by the demurrer, constituted an acknowledgment of an existing liability on the part of the defendant, and, further, that they also constitute a waiver of the right to interpose the plea of the statute of limitations in this action. The statute (Comp. Laws 1907, § 2898) which is relied on by counsel reads: In Elder v. Dyer, supra, the Supreme Court of Kansas had under consideration a letter written by one who signed a note as comaker, and in which letter he referred to the note in question and requested the payee thereof to "write him (the principal debtor) a sharp letter, and demand of him an indorser there. I do not want to be held longer on the note." The Supreme Court of Kansas held that what was stated in the letter was a sufficient acknowledgment of an existing liability to take the case without the bar of the Kansas statute. In the course of the opinion (26 Kan. 610, 40 Am. Rep. 320), in speaking of what is a sufficient acknowledgment of an existing liability under the statute, it is said: "No set phrase or particular form of language is required; anything that will indicate that the party making the acknowledgment admits that he is still liable on the claim, that he is still bound for its satisfaction, that he is still held for its liquidation and payment, is sufficient to revive the debt or claim; and there is no necessity that there should also be a promise to pay the same, either express or implied." The court goes on at some length to show that in that regard the Kansas statute differs from many others where, in addition to an acknowledgment of the debt, a promise to pay it is necessary. before the same court in the other four The same question in the same form was Kansas cases referred to, and the same result was reached. In Bissell v. Jaudon, 16 Ohio St. 498, and in Coffin v. Secor, 40 Ohio St. 637, the Supreme Kansas, and where the question before the Court of Ohio, under a statute like that of court was the same as the one before the Su"In any case founded on contract, when any part of the principal or interest shall have been preme Court of Kansas, arrived at a like paid, or an acknowledgment of an existing lia-result. bility, debt, or claim, or any promise to pay the The same result was reached by the Susame shall have been made, an action may be preme Court of Nebraska as appears from brought in such case within the period pre- Harms v. Freytag, 59 Neb. 359, 80 N. W. scribed for the same, after such payment, acknowledgment, or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby." Counsel for appellant has gone into the subject most thoroughly, and has cited many cases both for and against his contention. We shall assume, without deciding, that the facts pleaded are sufficient to authorize the conclusion that the defendant was not discharged in the bankruptcy proceedings. We shall therefore limit the discussion to the question of whether the defendant, under our statute, waived his right to interpose the plea of the statute of limitations. 1039. The Supreme Court of Mississippi also arrived at the same conclusion under a similar statute and conditions. Beasley v. Evans, 35 Miss. 192. In Ft. Scott v. Hickman, 112 U. S. 150, 5 Sup. Ct. 56, 28 L. Ed. 636, the Supreme Court of the United States, in a case originating in Kansas, followed the decision in Elder v. Dyer, supra. A few other cases could be added to the foregoing, but it is not deemed necessary to do so. By many of the courts, in passing upon Section 2898 is taken from Kansas. See statutes where a new promise is required, it Kan. Gen. St. 1868, p. 634, § 24, which has is, however, held that a mere acknowledgremained in force in that state continuous- ment of an existing liability is insufficient to revive the debt. We need not refer to expunge the debt from the schedule so filed those cases. by him. The same result was reached, under similar circumstances, in Re Hertzog, Fed. Cas. No. 6,433, and in Re Currier (D. C.) 192 Fed. 695, 27 Am. Bankr. R. 597. It is not deemed necessary to cite more cases, although such could be done both for and against counsel's contention. It will be observed that the precise question that is before us now was not before the courts in the foregoing cases to which reference has been made, and therefore is not passed on, unless it be held that any ac knowledgment of an existing liability under any and all circumstances is sufficient both Counsel, however, insists that, in view that to toll the statute and to revive the claim in our statute is taken from Kansas, and that case the statute has fully run. Counsel for it was adopted in this state after the case of plaintiff, with some force, contends that such Elder v. Dyer, supra, was decided, we should is the necessary effect of the cases to which follow the construction given it by the Sureference has been made. Digressing from preme Court of that state. While it is true that question for a moment, we find that that the Supreme Court of Kansas has held there are cases in which the precise question that in a personal communication by the debtnow under consideration was before the or to the creditor a mere acknowledgment of courts, and where different courts, apparent- an existing liability is sufficient to revive the ly, have arrived at different conclusions. In debt, yet that court has not yet held that the Re Resler (D. C.) 95 Fed. 804, Roscoe v. Hale, mere scheduling of a debt by an insolvent 7 Gray (Mass.) 274, Christy v. Flemington, 10 debtor in his petition in bankruptcy constiPa. 129, 49 Am. Dec. 590, Hidden v. Cozzens, tutes either the revival of the debt or a 2 R. I. 401, 60 Am. Dec. 93, and in Nonotuck waiver of the bar of the statute in an indeSilk Co. v. Pritzker, 143 Ill. App. 644, the pendent action upon the claim. That is what courts held that the scheduling of a claim in we are asked to hold. It will be observed bankruptcy proceedings does not constitute an that in this case the bar of the statute was acknowledgment that will revive the debt. complete long before the defendant filed While it is true that the courts have held his petition in bankruptcy to which he atthat a claim which is barred by the statute tached the schedule of debts, and in which of limitations is not a provable debt in bank- was included the claim in question. If it ruptcy, and hence need not be scheduled, yet were held, therefore, that scheduling the the text-writers upon the subject of bank-claim constituted a sufficient acknowledgment ruptcy practically all agree that it is al- of an existing liability to toll the statute, or ways proper to schedule such debts, and by that an action could be brought at any time doing so avoid subsequent actions thereon. within the four-year period, or if it were held The authors further say that by scheduling that in that proceeding he had waived the such claims the bar of the statute of limitations is not waived. In Collier on Bankruptcy (9th Ed., 1912) 235, the author, in referring to the subject of scheduling claims in bankruptcy proceedings, says: "All creditors should be scheduled, even those barred by the statute of limitations. To schedule the latter is not a revival of the debt, although it may be different in case of voluntary bankruptcy, where it afterwards happens that the bankrupt was not insolvent." In 1 Loveland on Bankruptcy (4th Ed.) 374, it is said: "It is proper to include creditors whose debts are barred by the statute of limitations. The insertion of such a debt in the schedules does not revive the claim." Upon the other hand, it was held by the trial judge in Stuart v. Foster, 18 Abb. Prac. (N. Y.) 305, that the listing of a promissory note by the debtor in a voluntary assignment for the benefit of his creditors was a sufficient acknowledgment of an existing liability to revive the debt. The same result was reached under a similar state of facts in Van Patten v. Bedow, 75 Iowa, 589, 39 N. W. 907. In Re Gibson, 4 Ind. T. 498, 69 S. W. 974, 4 Ann. Cas. 938, the Court of Appeals of Indian Territory held that, where an insolvent in filing a voluntary petition in bankruptcy scheduled a debt, by such act he waived the statute of limitations, and that the lower right to thereafter claim the benefit of the statute, yet should it also be held that such an acknowledgment constitutes a waiver of the bar which is complete when the schedule far as we are aware, the rule is general that is filed in the bankruptcy proceedings? So where the time has fully run the right to invoke the statute constitutes a vested right. True, the debtor, under our statute, may waive the right although it be vested. Where a right, statutory or otherwise, has become vested, however, the courts are slow to declare the same waived, unless the language or conduct of the party possessing the right shows that he intended to waive it, or that his language and conduct are such that it can be clearly inferred, or that it may be said as a matter of law that he had waived the right. We held in Schwab Safe & Lock Co. v. Snow, 152 Pac. 171: "A waiver is the intentional abandonment of a known right." We think that is a correct definition of a waiver. True, when one fails to plead the statute of limitations in a pending proceeding, he is held to have waived it, but that result is apparent from his acts and conduct in the very proceeding in which he either has the right to plead or to waive the statute. May it, however, also be inferred that, where a debtor in a bankruptcy proceeding follows the For the reasons stated, we are of the opinion that the district court committed no error in sustaining the demurrer, and the judgment is therefore affirmed. Costs to respondent. STRAUP, C. J., and MCCARTY, J., concur. et al. (No. 2787.) (48 Utah, 544) (Supreme Court of Utah. Sept. 17, 1915. Rehearing Denied Nov. 23, 1916.) APPEAL AND ERROR 843(2)-REVIEW-MATERIALITY OF QUESTION. subject, all of whom agree, that it is either [cy proceeding, which reason does not exist proper to schedule barred claims, or that they in an independent proceeding, and therefore should be included in the schedule, by such it should not be held waived in an independscheduling the debtor intends to or does ent action wherein the debtor filed no pleadwaive anything? Of course, it may be said, ing, and hence did not have an opportunity as counsel contends, and as some of the either to plead or to waive the bar of the courts have held, that in scheduling the debt statute. the debtor acknowledges it as an existing obligation. That, as we have seen, is done, however, in a proceeding where the debtor seeks to be relieved from his debts and obligations by due course of law. His acts therefore should be construed in the light of what he is attempting to do or accomplish under the bankruptcy law. To say that there is no difference between writing a personal letter by a debtor to his creditor in which the NEW ERA IRR. CO. v. WARREN IRR. CO. former acknowledges the existence of the claim and in filing a schedule of his debts under the rules governing bankruptcy proceedings is to lose sight of substance and be governed entirely by forms. We are not unmindful that some of the courts have held that under a statute like ours it is immaterial when or where the acknowledgment of the existing liability is made so long as it is clear that the debtor intentionally made it and that it was in writing and signed by him. Such, counsel contends, is the conclusion of the Supreme Court of Kansas, and for the reason that our statute was taken from that state after it was construed by that court we should follow its construction. We C. W. Morse, Judge. are impressed with counsel's argument, but Action by the New Era Irrigation Comwe are not ready to concede that the Su-pany, a corporation, against the Warren preme Court of Kansas would hold that under circumstances like those in the case at bar the debtor had waived his right to rely upon the statute as a bar to the action. While we have the highest respect for the decisions of the Supreme Court of Kansas, yet, if that court had so held, the writer, at least, should hesitate to follow its decision, for the reason that in his judgment the mere scheduling of a claim in bankruptcy proceedings, under the circumstances disclosed by this record, does not indicate an intention to Where there was evidence to support finding of an actual appropriation, diversion, and use of the waters for irrigation purposes by a defendant and its predecessor, question whether state engineer's certificate of appropriation, reciting that defendant's predecessor had done all required to make a complete appropriation of a certain amount of water, was conclusive or only prima facie evidence, was immaterial. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3331; Dec. Dig. 843(2).] Appeal from District Court, Weber County; Irrigation Company, a corporation, and the Pioneer Land & Irrigation Company, a corporation. From a judgment for defendants, plaintiff appeals. Judgment affirmed. Skeen Bros. & Wilkins, of Salt Lake City, and Johnson & Johnson, of Ogden, for appellant. Halverson & Pratt and H. H. Henderson, all of Ogden, for respondents. STRAUP, C. J. The plaintiff, as against the defendants, claims a primary right to pump water from Weber river at or near a waive the bar of the statute. To so hold place called Draney's Bend, west of Ogden would be to entrap the debtor, which is not City. The plaintiff claims that it and its the design of the statute. Moreover, as we predecessor, at that place, in September, 1911, read the cases, the weight of authority is appropriated 30 second feet of unappropriatagainst the proposition that a mere scheduled water by pumping it from the stream. ing of a claim which is barred is a sufficient It further claims that the defendants, above acknowledgment of an existing liability to the plaintiff's intake, pumped water from authorize the bringing of an independent ac- the stream belonging to the plaintiff. It tion thereon; that is, to sue and recover up- therefore brought this action for injunctive on it in a proceeding other than the bank-relief. The defendant Warren Irrigation ruptcy proceeding in which the schedule is Company answered and counterclaimed that filed. While we do not now pass upon the it, for more than 8 years, had acquired and question of whether one in scheduling a claim owned a primary right to pump, for irriga. in a bankruptcy proceeding thereby waives tion purposes, 15 second feet of water from his right to avail himself of the statute of the river, which right was prior and superior limitations in another independent proceed-to that of the plaintiff's. The other defending, yet we are free to confess that there may ant, the Pioneer Land & Irrigation Company, be, perhaps, some reason why the statute answered that it and its predecessors, in Janshould be deemed to be waived in a bankrupt- uary, 1903, appropriated 20 second feet of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "That at no time has the defendant Pioneer Land & Irrigation Company intended to or has abandoned its rights to the use of the waters under said water right as set out in the notice of the said Joseph Howard Skeen. "That more than 25 years ago the predecessor in interest of the plaintiff constructed that certain canal and canal system known as the Warren Irrigation Canal, tapping the Weber Mill creek and Four Mile creek, tributaries of river about 4 miles below Ogden City and the the Weber river, at points just above said canal water by pumping it from the stream, which [5, 6, and 32, township 6 north, range 2 west, right was superior and paramount to that of Salt Lake meridian. the plaintiff. The plaintiff, in reply, denied that the Warren Irrigation Company had, by means of pumping at the place in question, pumped, diverted, or used for a beneficial purpose any of the waters from the stream; and as to the other defendant, the Pioneer Land & Irrigation Company, it alleged that it, in the years 1903 and 1905, both inclusive, appropriated and pumped, at the place in question, not to exceed 2 second feet of wa-as the same crosses said streams, and by means ter; but that in the early summer of 1905, and thereafter, and until 1913, it ceased to pump, or divert, or use any of the waters from the stream, and wholly abandoned and forfeited whatever right it may have had in and to the use of any of the waters. The case was tried to the court, who found the issues in favor of the defendants. The court found that, in 1903, the Pioneer Land & Irrigation Company, and its predecessor, appropriated and acquired the right to use, for irrigation purposes, 7 second feet of water at the place in question, and that it, during the year 1905, pumped 7 second feet of water into its ditch for its stockholders for irrigation purposes; but "that from the years 1907 to 1911, both inclusive, it did not use any of the waters through its pumping system." The court further found: "That the said Joseph Howard Skeen (the predecessor of the Pioneer Land & Irrigation Company), at the time he established said pumping system, put in a 6-inch pump for the purpose of raising the waters of said Weber river into his flume and ditch. That thereafter, in the year 1905, the defendant Pioneer Land & Irrigation Company installed a 10-inch pump, which was operated by a steam engine of 25 horse power and a boiler of 40 horse power. That during the year 1908 the defendant Pioneer Land & Irrigation Company disposed of its engine and boiler and did not install another engine and boiler until the year 1912. That during the year 1909 the officers of the Pioneer Land & Irrigation Company were making investigations of electric power with the intention of operating said pump with electricity. That in the spring of 1912 the officer of the defendant Pioneer Land & Irrigation Company installed a 50 horse power engine and 60 horse power boiler, at an expense of $2,500, for the purpose of operating said pump to lift water for irrigation purposes. That said engine and boiler were not installed in time so that said pump could be operated for irrigation purposes during the year 1912, but the Pioneer Land & Irrigation Company did pump during the fall of 1912, for the purpose of testing said pump, engine, and boiler. That during the year 1913 the defendant Pioneer Land & Irrigation Company furnished waters through its said pumping system as then installed and through its various ditches and flumes to irrigate about $500 acres of land belonging to the stockholders of said company. That the main ditch used in conveying said water was 2 feet deep, 4 feet wide on the bottom, and 6 feet on the top, and carried water which was pumped through its said system of 7 second feet. That said 7 second feet of water is necessary for the use of the stockholders of the defendant Pioneer Land & Irrigation Company to raise and mature crops growing on their said lands. That all the land owned by the stockholders of the Pioneer Land of said canal and lateral ditches and dams and used all the waters aforesaid from said placed in said streams appropriated, diverted. several sources of supply during the irrigation season of each and every year since said time, for the irrigation of crops, and for culinary, domestic, and other useful and beneficial purposes on the lands of the stockholders of the defendant Warren Irrigation Company, and their predecessors in interest, and have ever used all the waters aforesaid during the irrigasince continuously diverted, appropriated, and tion season of each and every year, except at such times when there was a surplus of water in said several sources of supply during the early irrigation season; and that on the 22d day of January, 1906, the state engineer of the state of Utah duly issued his certificate of appropriation to one W. L. Stewart, in the Words and figures following [setting it forth in full]." It shows an application for an appropriation of 15 second feet of water by W. L. Stewart for irrigation purposes, and contains recitals that the water is lifted from the stream by means of pumping and diverted and used for such purposes, and that he was entitled to the use of that quantity of water, and contains other necessary recitals not here material. The court further found: That Stewart and his wife, in June, 1912, conveyed all his right so acquired to the Warren Irrigation Company who "immediately in the same year installed a new pumping plant at the point described in the plaintiff's complaint, and known as Draney's Bend, and in said certificate mentioned, at great expense, to wit, at an expense of about $8,000, and during every irrigation season since said time during the low water season when there was a shortage of water in the Weber river and the sources of supply of the said defendant Warren Irrigation Company, the said defendant Warren Irriga tion Company, has pumped water from the Weber river by means of said pumping plant, and into said canal of the Warren Irrigation Company, and distributed the same through said canal system for irrigation, culinary, and domestic purposes to the stockholders of the defendant Warren Irrigation Company. That the stockholders of the defendant Warren Irrigation Company, and their predecessors in interest, have irrigated and still continue to irrigate about 1,700 acres of land under said canal system. That the lands of its said stockholders are arid in character, and without the use of irrigation will not produce valuable agricultural and other crops thereon, but that by and through irrigation said lands will produce valuable agricultural and other crops, and all of said waters all of said time during each and every irrigation season has been and still is needed by this defendant and its stockholders for the irrigation of said lands, and for domestic, culinary, and other purposes. "That a second foot of water will irrigate complaint of the plaintiff and answers of the defendants. there is an unusual supply of water in said river, there is a large quantity of water flowing in said river at said point in excess of the requirements of either plaintiff or the defendants." "That on the 5th day of September, 1911, Lyman Skeen and D. A. Skeen filed an application in the state engineer's office of the state of Utah, to appropriate 30 second feet of the Upon the findings it was adjudged that flow of the waters of the Weber river at a the defendant the Pioneer Land & Irrigation point just below the pumping station of the Company is entitled to and was awarded, Warren Irrigation Company. That thereafter due notice of the filing of said application was as against the plaintiff, a superior and prigiven, and the said application was by said state mary right to the waters in controversy, to engineer duly allowed and approved, which ap- the extent of 7 second feet; the Warren Irplication, among other things, stated: "That the water is to be pumped into Warren Irrigation rigation Company, 15 second feet. The plainCompany ditch from the seepage water in the tiff's injunctive relief was therefore denied. Weber river, which is formed by a union of From that judgment the plaintiff appeals. the Ogden and Weber rivers. The water will It, as to the Warren Irrigation Company, asthen be carried in the Warren canal to the above-described land, and there distributed into sails the finding in the particular that there private ditches. This application is made to ob- is not sufficient evidence to suport the findtain a right for a supply to supplement the ings that that company, prior to plaintiff's existing right or rights owned by or to be owned appropriation, had made any appropriation by the Warren Irrigation Company not more than one cubic foot per second of water for of the waters in question by pumping, diverteach 70 acres of land will be diverted from all ing, or using any such waters. As to the sources of supply or not more than 3 acre feet other defendant, the Pioneer Land & Irrigaper acre of land per annum will be diverted from all sources of supply for these lands.' tion Company, the plaintiff contends that "That pursuant to said application of the the evidence, without any substantial consaid Lyman Skeen and D. A. Skeen and within flict, shows that that defendant, from 1905 the time specified therein by said engineer in his approval of said application for the be- to 1912, both inclusive, abandoned whatever ginning of actual construction work, the said rights it may have had in and to the use of Lyman Skeen and D. A. Skeen actually be- any of the waters, and hence, that the findgan the construction of the said proposed divert- ing, which the court made in such respect in ing works. That thereafter and within the time originally granted and upon proper application favor of that company, is against the evibeing duly made by the said Lyman Skeen and dence. We, on an examination of the record, D. Å. Skeen and their successor the said enare satisfied that there is sufficient evidence gineer extended the time for the completion of said diverting works up to and including the 3d day of March, 1915. "That thereafter and within the time so extended said Lyman Skeen and D. A. Skeen and their successors in interest constructed and installed and put into actual operation a pumping plant with sufficient capacity to divert said water, and constructed an independent ditch for distribution of and to carry the same to and upon a part of the land designated in said application, and did not pump said water into said Warren Irrigation Company's Canal at all, and during such time, and as soon as the flow of water would permit of the construction of said dam the plaintiff, as successor in interest of said Lyman Skeen and D. A. Skeen, began the construction of the cement and concrete dam as specified in its approved application to the state engineer to raise and impound said water, and as a part of the diverting works, which dam is now in course of construction and substantially completed, and which is necessary during the minimum flow of said Weber river in order to divert said water, and in the construction and installation of said diverting works and canal system plaintiff expended about $8,000. "That after filing said application in the state engineer's office and the approval and allowance thereof, and after the beginning of the construction work on said diverting works and canal, the said Lyman Skeen and D. A. Skeen, for a valuable consideration, sold, assigned, and transferred all their right, title, and interest in and to said application and water rights and works to the plaintiff. "That the pumps and diverting works of the plaintiff and of the defendants are located on Weber river at what is known as Draney's Bend. That during each irrigation season of each year in what is known as the lower water season, there is from 12 to 30 second feet, varying in different years, flowing down said river at said point which can be pumped into plaintiff's and defendants' ditches, and that during the early irrigation season and during seasons when to support and justify the findings so made. We see no good purpose in setting forth the evidence which, in our judgment, supports, or which may be said to be against, them. There is but one question of law which divides the parties. The Warren Irrigation Company contends that the certificate of appropriation issued to its predecessor by the state engineer granting him 15 second feet of water, and reciting that he had done all that was required to be done to make a complete and valid appropriation of that amount of water, was conclusive on the plaintiff and all those claiming to have acquired rights subsequent thereto. On the other hand, the plaintiff contends that such certificate is but prima facie evidence of the facts therein recited, and that the proof, aliunde the certificate, shows that the recitals respecting the applicant's diversion, use, and appropriation of the waters were false. The court's finding was not based on the proposition that the certificate was conclusive, but on the evidence adduced of an actual appropriation, diversion, and use of the waters for irrigation purposes by the Warren Irrigation Company and its predecessor. And since there is evidence to support and justify such finding it is unnecessary to determine whether the certificate is conclusive, or only prima facie evidence. No assignment is made, nor does the record disclose, that the plaintiff was precluded from controverting any recital of fact contained in the certificate or that the court, by any ruling, held or treated the certificate as couclusive evidence against the plaintiff. |