Albion-Idaho Land Co. v. Naf Irr. Co.

• Decision Date: 03 June 1938
• Docket Number: No. 1591.,1591.
• Citation: 97 F.2d 439
• Parties: ALBION-IDAHO LAND CO. v. NAF IRR. CO. et al.
• Court: U.S. Court of Appeals — Tenth Circuit

97 F.2d 439 (1938)

ALBION-IDAHO LAND CO. v. NAF IRR. CO. et al.

No. 1591.

Circuit Court of Appeals, Tenth Circuit.

June 3, 1938.

Branch Bird, of Gooding, Idaho (W. G. Bissell, of Gooding, Idaho, on the brief), for appellant.

A. E. Bowen, of Salt Lake City, Utah (S. J. Quinney and Albert R. Bowen, both of Salt Lake City, Utah, on the brief), for appellees.

Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.

PHILLIPS, Circuit Judge.

Clear Creek is an interstate, nonnavigable mountain stream having its source in the Raft River Mountains of Utah and flowing northerly into Idaho to its confluence with Raft River about 15 miles north of the Utah-Idaho boundary line.

The Albion-Idaho Land Company, hereinafter referred to as the Land Company, is a corporation organized under the laws of California. It owns 2400 acres of land in Cassia County, Idaho, with water rights from Clear Creek appurtenant thereto for the irrigation of portions thereof.

The Land Company brought this suit against the Naf Irrigation Company and certain owners of lands all situated in Box Elder County, Utah, with the exception of a tract of 160 acres situated in Cassia County, Idaho. The defendants are the owners of water rights from Clear Creek appurtenant to such lands for the irrigation thereof. All of their points of diversion are located in Box Elder County, Utah. After the suit was commenced five owners of land in Cassia County, Idaho, intervened. The lands of the defendants and their points of diversion are situated higher on the stream than those of the Land Company and the interveners. The defendants will hereinafter be referred to collectively as the upper group and the Land Company and the interveners collectively as the lower group.

In its complaint the Land Company alleged that it is the owner of certain lands in Cassia County, Idaho; that it had acquired by diversion and application to beneficial use the right to use water from Clear Creek for agricultural purposes upon such land prior in time and superior in right to any water rights of the defendants, and that the defendants had made wrongful and unlawful diversions of the waters of Clear Creek during the irrigation seasons of 1928, 1929, 1930, and 1931, to the detriment of the Land Company. The Land Company set out certain decrees adjudicating the priorities and amounts of the Land Company's water rights. It prayed for an injunction against the defendants restraining them from "interfering with the waters of * * * Clear Creek or diverting waters therefrom for irrigation or any other purpose * * * except at such times as the rights of the plaintiff * * * are being supplied in full," and for the appointment of a water master to administer the waters of the stream.

Each intervener set up that he is the owner of certain land in Cassia County, Idaho; that he had acquired by diversion and application to beneficial use the right to use water from Clear Creek for irrigation purposes upon such land prior in time and superior in right to any water rights of the defendants, and that the defendants had made wrongful and unlawful diversions of the waters of Clear Creek during the seasons of 1928, 1929, 1930, and 1931. The interveners prayed for substantially the same relief as the Land Company.

In their answers the defendants denied the essential allegations of the complaint and the petitions in intervention and affirmatively alleged water rights of their own acquired by diversion and application to beneficial use by them and their predecessors, prior in time and superior in right to the water rights of the Land Company and interveners. Defendants also pleaded as special defenses the statute of limitations, adverse user, and nonuser by the Land Company and interveners.

The cause came on for trial upon the issues so framed. The parties entered into a stipulation as to the respective lands owned by each.

Certain oral evidence was introduced in support of the alleged claims of water rights of the several parties. The Land Company and interveners introduced in evidence a decree known as the Dietrich decree, rendered by the District Court of the United States for the District of Idaho on October 18, 1919. It adjudicated the water rights of the lower group and established their several priorities. The defendants and their predecessors in interest were strangers to the Dietrich decree. The Land Company introduced in evidence a decree known as the Christensen decree rendered by the district court of Box Elder County, Utah, on November 18, 1918, which adjudicated the waters rights of the upper group and established their several priorities. The Land Company and the interveners were strangers to the Christensen decree. The Land Company introduced a decree known as the Hart decree rendered by the district court of Box Elder County, Utah, on July 11, 1901. The predecessors in interest of the Land Company and the predecessors in interest of a portion of the defendants were parties to the suit in which the Hart decree was rendered. By the Hart decree the court undertook to adjudicate the water rights of all the users of water from Clear Creek and to establish their several priorities. Each decree was received in evidence over objection of the defendants.

The statement of the evidence brought here omits much of the oral evidence introduced at the trial. Hence, we must accord verity to the facts as set forth in the written opinion of the trial court and in its formal findings of fact.

In the trial court's opinion these facts are set forth:

Clear Creek is a characteristic mountain stream. Its highwater period occurs in the spring and early summer when its flow sometimes reaches 180 second feet. During the remainder of the year it draws its water solely from springs along its course and flowing water is found only in its upper reaches and there in insignificant quantity.

In the late '70's or early '80's of the nineteenth century, pioneers settled along the stream and began to make use of its waters for irrigation. There were two groups of these settlers, one locating near the mouth of Clear Creek Canyon in what is now the state of Utah, and the other in the valley of Clear Creek and Raft River in what is now the state of Idaho.

The lands first taken up by the Idaho settlers, predecessors of the lower group, were natural meadows of an area of approximately 1000 acres which were irrigated by overflow from the stream. To more completely irrigate these meadow lands the predecessors of the lower group made a few short ditches and constructed temporary dams in the stream. Shortly thereafter the predecessors of the lower group began to sow tame grasses, including alfalfa, and increased the area irrigated by building new ditches, extending old ditches, and constructing more temporary dams in the stream. The evidence leaves the amount of the increase and the location of the early diversion dams uncertain.

About the time the predecessors of the lower group began to utilize the meadow lands, the predecessors of the upper group in Utah began to utilize the waters of Clear Creek for irrigation of their lands.

All of the early settlers were stock raisers and were primarily interested in producing grass for pasturage and hay for feeding livestock.

The lands in Utah were rough and more precipitous than those in Idaho and the predecessors of the upper group in Utah of necessity constructed more permanent diversion dams and longer ditches. At an early date they irrigated grasses for pasturage and hay on 1280 acres of land.

During this early period one John Naf settled on what is now known as the John Naf Ranch in Idaho, embracing 160 acres of land, the northern boundary line of which is coincident with the Utah-Idaho boundary line, and began to irrigate such land for pasturage and hay. The Naf Ranch is included in the upper group.

During the earlier days there was apparently sufficient water for all the users. In more recent years the waters of the stream have been used for producing crops other than grass and hay by both the upper and lower groups, and the acreage has been increased from time to time so that the demand for water now exceeds what the stream will supply. This shortage was accentuated due to an extraordinary period of drouth in the years 1926 to 1936, inclusive.

Until a certain quantity of flow is reached as the stream rises in the spring and after the stream decreases to or below a certain quantity of flow in early summer, the waters of the stream will not reach the lower users in sufficient quantity to afford a practical head for irrigation purposes. In the period between these two minimums the waters may be used advantageously by both the upper and the lower groups. Hence, it is desirable to so rotate the use of the waters of the stream so that the maximum amount can be diverted to the land for irrigation by the several users and the waste of water prevented.

The trial court concluded that on the evidence before it, it could not make a just and equitable decree without further studies being made of the stream. Accordingly, on March 28, 1933, with the consent of the parties, the trial court entered an order appointing the Commissioner of Reclamation of the state of Idaho and the State Engineer of the state of Utah as commissioners to supervise the distribution of the waters of Clear Creek during the 1933 irrigation season, to determine the flow of the stream at its various stages, to ascertain at what stages, if any, the waters of the stream would not flow in sufficient amount to provide a practical head for irrigation on the lands of the lower group, and to make studies of the stream and the lands irrigated therefrom and report to the court means and methods to effect the most economical and beneficial use and distribution of the waters of the stream.

Pursuant to such order, and extensions thereof made with the consent of the parties, the commissioners distributed the waters...