Abbott v. Reedy

• Decision Date: 08 February 1904
• Citation: 9 Idaho 577,75 P. 764
• Parties: ABBOTT v. REEDY
• Court: Idaho Supreme Court

75 P. 764

9 Idaho 577

ABBOTT v. REEDY

Supreme Court of Idaho

February 8, 1904

CONFLICTING EVIDENCE-ISSUES COVERED BY PLEADINGS.

1. Evidence examined, and, held, that there is a substantial conflict upon the point urged, and that the appellate court cannot therefore disturb the findings and judgment based thereon.

2. Where the issue as to the existence of a separate and distinct water right and appropriation is not made by the pleadings, and the proofs tend to establish such right, and no amendment of the pleadings is offered in the trial court this court will not go beyond the issues so made to modify a judgment.

(Syllabus by the court.)

APPEAL from District Court in and for Blaine County. Honorable Kirtland I. Perky, Judge.

Suit by George H. Abbott and others to determine the rights and priorities of the various water consumers of and from Soldier creek in Blaine county. From a decree settling the respective rights of all the parties defendant, John Wardrop appeals. Affirmed.

Judgment affirmed, and ordered, with costs.

R. F Buller, for Appellant Wardrop.

It is an undisputed fact that the appellant Wardrop has the oldest water right on Soldier creek, and the court so found, as shown by the decree. The evidence also affirmatively shows that for about nineteen years he and his predecessors in the ownership of the one hundred and twenty acres of land that he obtained from C. E. Sampson had deemed it necessary to use and had claimed and used, more than two inches of water to the acre during the irrigating season every year for the purpose of irrigating the said one hundred and twenty acres and a part of another eighty acre tract adjoining it. In reference to irrigating waters, he who is first in time is best in right. (Idaho Rev. Stats., sec. 3159.) The court had no right to adopt an arbitrary rule, founded upon the mere guesswork of witnesses, that one inch to the acre was sufficient in all cases upon any and all kinds of land, and so deprive the appellant of a large share of the water that he had used for nearly five times the period of limitation and give it to other parties. As to the quantity necessary, one party guessed an inch to the acre and the other, with equal firmness, guessed two and one-half inches. So the guesses were a standoff. But the fact of a claim and continuous use of more than an inch to the acre remained uncontroverted and ought to have prevailed. (Campbell v. West, 44 Cal. 646; Alhambra Water Co. v. Richardson, 72 Cal. 598, 14 P. 379.) The court erred in dating the allowance of one hundred and twenty-five inches from June 27, 1885. The testimony is that Wardrop and Ballard began work on their ditch in May, 1885, and completed it in June, and the date should have been May 27, instead of June 27, 1885. (2 Idaho Codes, 200, sec. 2580; McDonald v. Bear River Co., 13 Cal. 220-223; McCall v. Porter, 42 Or. 49, 70 P. 823, 71 P. 976.) The right accrues from appropriation. This appropriation is the intent to take, accompanied by some open, physical demonstration of the intent, for some valuable use.

L. L. Sullivan and T. W. Thomas, for Respondents.

This is the usual form of action to obtain an adjudication of water rights, and was brought to settle the rights and priorities to the use of the waters of Soldier creek, in Blaine county. The plaintiffs and defendants were decreed not to exceed one inch of water for each acre of land owned by them, and in some instances were decreed one hundred inches of water for one hundred and sixty acres of land. The appellant, John Wardrop, did not make a motion for a new trial, but appealed directly from the judgment. There being a substantial conflict in the evidence upon the only question involved in this appeal, the appellate court will not disturb the judgment of the lower court. (Cash Hdw. Co. v. Sweeney, ante, p. 148, 72 P. 826; Stuart v. Hauser, ante, p. 53, 72 P. 719.)

AILSHIE, J. Sullivan, C. J., and Stockslager, J., concur.

OPINION

AILSHIE, J.

This was a suit in equity commenced by several plaintiffs in the district court in and for Blaine county against numerous defendants to determine the respective rights and priorities of water consumers on Soldier creek in said county. Most of the defendants answered by way of cross-complaint, setting up their several interests and claims. The defendant Wardrop who is the only appellant in this court, filed his answer and cross-complaint, specifically denying all the allegations of the complaint and setting up a prior right to the use of the waters of said stream sufficient to irrigate a tract of three hundred and sixty acres lying under the stream. The case went to trial and the various plaintiffs and defendants introduced their evidence establishing, or tending to establish, their several rights and priorities, and thereafter findings of fact and conclusions of law were made and judgment was thereupon entered decreeing the several interests and priorities of the respective parties to the suit. The defendant Wardrop was awarded one hundred and twenty inches dating from November 30, 1882, and one hundred and twenty-five inches dating from June 1, 1885. Wardrop was dissatisfied with the quantity of water awarded him by this decree, and thereupon prepared and had settled a statement on appeal containing the evidence...