Albrethsen v. Wood River Land Co.

• Court: United States State Supreme Court of Idaho
• Writing for the Court: WILLIAM A. LEE, J.
• Citation: 231 P. 418,40 Idaho 49
• Parties: MARTIN ALBRETHSEN, in Behalf of Himself and in Behalf of All Other Persons Similarly Situated With Him, Plaintiff and Appellant, v. WOOD RIVER LAND COMPANY, a Corporation, Defendant and Respondent; BIG WOOD RIVER RESERVOIR AND CANAL COMPANY, LIMITED, Intervenor; IDAHO IRRIGATION COMPANY, Intervenor, and JAMES FARMER and All Other Users of Water from Big Wood River Similarly Situated With Him, Intervenors and Appellants
• Decision Date: 08 February 1924

231 P. 418

40 Idaho 49

MARTIN ALBRETHSEN, in Behalf of Himself and in Behalf of All Other Persons Similarly Situated With Him, Plaintiff and Appellant,
v.
WOOD RIVER LAND COMPANY, a Corporation, Defendant and Respondent; BIG WOOD RIVER RESERVOIR AND CANAL COMPANY, LIMITED, Intervenor; IDAHO IRRIGATION COMPANY, Intervenor, and JAMES FARMER and All Other Users of Water from Big Wood River Similarly Situated With Him, Intervenors and Appellants

Supreme Court of Idaho

February 8, 1924

WATER AND WATER RIGHTS-ABANDONMENT-CONFLICT OF EVIDENCE.

1. Where abandonment is alleged against a prior appropriator, and it appears from the measurements made of his canal system by competent and experienced engineers, including those in his employment, that his canal does not have capacity to carry the amount of water decreed to it, and it also appears that such excess has been returned to the stream and diverted and used by subsequent appropriators, after the lapse of more than five years such prior appropriator will be held to have abandoned such excess.

2. Where the measurements of a canal are made by experienced, competent engineers on behalf of both parties, and they agree that its maximum capacity is not sufficient to deliver the amount decreed to it, and there is evidence by witnesses who testify that in their opinion it has carried the maximum, such opinion evidence is not sufficient to overcome the testimony of the actual measurements and support the finding that it will carry the maximum claimed.

3. It is fairly well settled that the carrying capacity of an irrigating ditch or canal may be determined with reasonable certainty by competent engineers, who have had experience in this class of work.

APPEAL from the District Court of the Fourth Judicial District, for Blaine County. Hon. Charles F. Reddoch, Judge Presiding.

Action to declare forfeiture of certain waters. From judgment for defendant, plaintiff appeals. Reversed and remanded, with instructions.

Reversed and remanded, with instructions.

Bothwell & Chapman and Sullivan, Sullivan & Van Winkle, for Appellants.

Four thousand inches of the waters of Big Wood River decreed to W. T. Riley, December 13, 1909, in the case of S. C. Frost et al. v. Alturas Water Company et al., and now claimed by the defendant, has been lost and abandoned by a failure for the term of five years following said decree to apply 4,000 inches of said right to the beneficial use for which it was appropriated. (C. S., sec. 5582.)

Richards & Haga, for Respondent.

"Forfeitures are not favored and must be clearly established." (Ada County etc. Co. v. Farmers' Canal Co., 5 Idaho 793, 51 P. 990, 40 L. R. A. 485.)

"Courts will not lightly decree an abandonment of a property so valuable as that of the water in an irrigated region." (Miller v. Wheeler, 54 Wash. 429, 103 P. 641, 23 L. R. A., N. S., 1065.)

A party claiming an abandonment must establish the fact by clear and unequivocal evidence. (Beaver Brook Reservoir Co. v. St. Vrain Reservoir Co., 6 Colo. App. 130, 40 P. 1066.)

"The decision of a court when sitting in a trial of a cause is of the same force and effect as a verdict of a jury in a jury trial and where there is a substantial conflict in the testimony, it is the duty of the appellate court to confirm the decision." (Sabin v. Burke, 4 Idaho 28, 37 P. 352; Stuart v. Hauser, 9 Idaho 53, 72 P. 719; Cowden v. Finney, 9 Idaho 619, 75 P. 765; Heckman v. Espey, 12 Idaho 755, 88 P. 80; Lindstrom v. Hope Lbr. Co., 12 Idaho 714, 88 P. 92; Flynn Group etc. v. Murphy, 18 Idaho 266, 138 Am. St. 201, 109 P. 851; Western Moline Plow Co. v. Caldwell, 18 Idaho 463, 110 P. 533; Salisbury v. Spofford, 22 Idaho 393, 126 P. 400; Brinton v. Steele, 23 Idaho 615, 131 P. 662; Cameron Lumber Co. v. Stack G. L. Co., 26 Idaho 626, 144 P. 1114; Jain v. Priest, 30 Idaho 273, 164 P. 364; Smith v. Faris-Kesl Con. Co., 27 Idaho 407, 150 P. 25.)

"It is our duty to give to the findings the most liberal construction the language used will justify in order to sustain the judgment founded thereon." (Wilkinson v. Bethel, 13 Idaho 746, 93 P. 27; Eastwood v. Standard Mines etc. Co., 11 Idaho 195, 81 P. 382.)

WILLIAM A. LEE, J. McCarthy, C. J., Budge, J., and DUNN, J., concurring. DUNN, J., dissents.

OPINION

[40 Idaho 51] WILLIAM A. LEE, J.

This is an action by plaintiff in his own behalf and on behalf of all others similarly situated against the Wood River Land Company, a corporation, to have a portion of its decreed water declared abandoned and lost for a failure on its part, for more than five years, to apply such water to a beneficial use. The several intervenors withdrew their respective pleadings and joined plaintiff in demanding the relief prayed for. There is no controversy between the parties as to the relative position of plaintiffs and defendant and their predecessors in interest as to their respective priorities prior to this alleged abandonment on the part of respondent. The basis of respondent's claim is a decreed right entered in December, 1909, in the case of Frost et al. v. Alturas Water Company, in the fourth judicial district court, for Blaine county, wherein one Riley was decreed 5,595 inches of water out of the Big Wood River, with priority from March 24, 1883, for use upon lands described in that decree. Appellant and those who join with him are individual farmers owning lands situated in the Wood River Valley, adjacent to Big Wood River, whose rights are also based upon the decree in the Frost case, which are conceded to be subsequent in time to the rights decreed to Riley, respondent's predecessor in interest.

The controversy between the respective parties to this action, as contended for in [231 P. 419] their petition for rehearing, arises over appellants' claim that of the total amount decreed to Riley, which was subsequently acquired by respondent, it has, by failure to apply more than 3,850 inches of such [40 Idaho 52] decreed water to a beneficial use during the years of 1910 to 1914, inclusive, abandoned and lost all of said decreed water in excess of this 3,850 inches, and that such excess of approximately 2,150 inches has remained in or been returned to Big Wood River since 1910, and has been delivered to appellants by the water-master in charge of the distribution of the water of said stream, and by them beneficially applied to their respective lands, and that by reason of such abandonment, respondent is precluded from claiming any right in or to the use of the same.

The judgment of the court below was against appellants' contention, and the cause is here upon appeal, based upon the single assignment that the evidence is insufficient to sustain the findings of fact and conclusions of law and judgment entered thereon.

The evidence is voluminous, and we will not undertake a detailed analysis of all of the testimony. The ditch in question, through which respondent has diverted its water since the decree of December, 1909, is commonly referred to as the Riley Ditch, and appellants concede to respondent a right to the prior use of all water that could have been diverted through the Riley Ditch during the years 1910 to 1914, inclusive. But appellants contend that this ditch did not have during this time, and does not now have, sufficient capacity to carry more than 3,850 inches. The engineers who testified on behalf of appellants fixed the maximum carrying capacity of this ditch to be not greater than 2,600 inches. The engineer Sloan testified that in 1919 its maximum capacity at its smallest point, which he fixed as below the highway bridge, was 2,200 inches. The engineer Vernon made a measurement in 1912, and found the greatest carrying capacity of this ditch to be 2,600 inches above the Howard crossing.

Respondent sought to meet this showing made on behalf of appellants by its witness Chapman, who had also been its water-master during several years of this time, who fixed the maximum capacity of the Riley Ditch to be 3,850 inches during one of the years in which he was so employed, [40 Idaho 53] but found that in other years its capacity was as low as 3,100 inches. The witness Campbell, who qualified as an engineer, and who appears to be the witness chiefly relied upon by respondent to show the capacity of its ditch, made a number of measurements during the year 1919. By meter at that time it was only carrying 2,178 inches near the headgate, and another measurement showed 3,404 inches at the same point. His computation as to its theoretical capacity at a point 200 feet above what is known as the Mizer Bridge was 3,863 inches. Campbell made a great number of cross-sections of this canal, and appears to have made an exhaustive effort to ascertain the maximum carrying capacity of the Riley Ditch, and while the measurements at various stations greatly varied, at no time or place does he fix the maximum carrying capacity of this ditch to be greater than 3,863 inches.

Much stress is laid by respondent upon the fact that many of the measurements of this ditch were made during 1918, 1919 and 1920, and it contends that it would not follow that the condition of the ditch with regard to its carrying capacity remained the same during all of this time, or that its capacity at the time these later measurements were taken was the same as it had been during the years from 1910 to 1914, all of which is quite true. But the measurements of the engineer Vernon were made in 1912 and again in 1920, and show that the carrying capacity...