Almo Water Co. v. Jones, 5820.

• Decision Date: 24 March 1930
• Docket Number: No. 5820.,5820.
• Parties: ALMO WATER CO. et al. v. JONES et al. PIERCE et al. v. ALBION-IDAHO LAND CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

39 F.2d 37 (1930)

ALMO WATER CO. et al. v. JONES et al.^*

PIERCE et al. v. ALBION-IDAHO LAND CO. et al.

No. 5820.

Circuit Court of Appeals, Ninth Circuit.

March 24, 1930.

Jess B. Hawley, Oscar W. Worthwine, James H. Hawley, Jr., and Hawley & Hawley, all of Boise, Idaho, for appellants Almo Water Co. and others.

S. T. Lowe, of Burley, Idaho, and E. M. Wolfe, of Twin Falls, Idaho, for appellants Pierce and others.

W. G. Bissell and Branch Bird, both of Gooding, Idaho, for appellee Idaho Land Co.

Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.

RUDKIN, Circuit Judge.

The present suit was instituted by the Albion-Idaho Land Company, a California corporation, owner of a considerable acreage of arid land in Cassia county, Idaho, irrigated by waters diverted and appropriated from Raft river in that state, against approximately seven hundred residents and citizens of the states of Idaho and Utah, who claim the right to use waters appropriated and diverted from the same stream and its tributaries, to settle and determine the right of the plaintiff in and to the use of the waters claimed by it, to quiet its title thereto, and to restrain the defendants from interfering therewith. Many of the defendants answered the complaint, and nearly all of them set up claims to the use of the waters of the same stream and its tributaries under appropriations made by themselves or by their predecessors in interest.

Two appeals have been prosecuted from the final decree. The Almo Water Company and its stockholders have appealed from that portion of the decree awarding to certain of the defendants the use and right to use the waters of the north fork of Almo creek and its tributaries for irrigation and other purposes, and the defendants Pierce and wife and Sears and wife have appealed from that portion of the decree awarding to the plaintiff the use and right to use certain waters, and also from the refusal of the court to award to the appealing defendants further and additional rights.

We will first consider the appeal of the Almo Water Company and its stockholders, which involves the waters of Almo creek only. This stream, 7 or 8 miles in length, is a tributary of Raft river. On its downward course it divides into two branches, commonly called the north and south forks. The parties are not agreed as to the natural division of the water flowing in the main stream as between the two branches. While conceding that the north fork flows a large quantity of water during the high-water season, in the late spring and early summer, the appellants contend that this branch is entirely dry in the low-water season, which begins perhaps late in June or early in July. The appellees, on the other hand, contend that the waters of the main stream, in their natural state, were about equally divided between the two branches at all seasons of the year. The controversy between the parties in this regard was not determined by the court below, but it is to be inferred from the language of the opinion¹ that the court accepted the view contended for by the appellants. The appropriations or diversions with which we are chiefly concerned were made by settlers in the late 70's or early 80's of the last century. Some of these appropriations were made from north fork, but the greater number were from the south fork. In 1893 a decree was entered in one of the state courts adjudicating the rights of all claimants from the south fork, but the claimants from the north fork were not made parties to that suit. About the year 1889, while this suit was pending, all, or nearly all, of the predecessors in interest of the appellant Almo Water Company formed an association, and constructed a canal for the purpose of diverting the waters claimed by them from the main stream above the forks, during the low-water season, and later the corporation was formed to carry out the same purpose. These appellants first contend that neither the appellees nor their predecessors in interest have been seized or possessed of any of the waters of Almo creek, except during the extreme high-water season, for more than fifteen years last past, and that they are therefore barred by the statute of limitations of the state from recovering any of such waters, except during the extreme high-water season. No doubt there has been the usual encroachment on the rights of others in this case, and the more diligent and aggressive claimants have diverted and used more than their just proportion of the scanty water supply, but it does not appear that such encroachment has been so persistent and continuous or of such duration as to result in gain or loss of rights by adverse use. Such was the conclusion of the court below, from a consideration of all the testimony and from a personal inspection, made at the instance of the parties, of conditions at and surrounding the point where the two branches separate from the main stream. In view of the testimony and the circumstances, we do not feel that we would be justified in disturbing the findings thus made.

It is further suggested that no valid appropriations were in fact made by the predecessors in interest of the appellees. The means originally employed to divert the water from the stream were crude and primitive, consisting, as they did, of plow furrows running from the stream to low points on the lands to be irrigated,...