Arkoosh v. Big Wood Canal Co.

Citation48 Idaho 383,283 P. 522
Decision Date08 November 1929
Docket Number5271
PartiesJ. E. ARKOOSH et al., Plaintiffs; v. BIG WOOD CANAL COMPANY, a Corporation, Appellant GEORGE E. CARTER, Commissioner of Reclamation of the State of Idaho, Defendant; and WM. BLACK et al., Cross-Defendants, Respondents,
CourtIdaho Supreme Court

WATER AND WATER RIGHTS-INTERFERENCE WITH-INJUNCTIVE RIGHTS-DISTRIBUTION OF WATER-SUPERVISION OF.

1. Motion to strike respondents' brief as not complying with rule 40 of the supreme court held denied, though references in brief to transcript folios were too few, propositions of law were not separately stated from argument, and brief was principally only an answer to appellant's brief but was of value.

2. In suit to restrain interference with water rights in Big Wood River, demurrer on ground of misjoinder of parties held properly overruled where parties all had interest, though not equal interest in waters of stream and extent of flow.

3. Interference with water rights in river, though not negligent, furnishes justification for injunctive relief, so that action for damages is not exclusive remedy.

4. In suit to restrain interference with water rights, defendant canal company could be restrained from further continuing injury though damage was originally caused by defendant's predecessor in interest.

5. In suit to enjoin defendant from interfering with natural flow of Big Wood River and from interfering with appropriated waters by use of reservoir, that method of distribution during one year was effective co-operative solution of some of difficulties connected with water situation of parties held not to establish consent to defendant's actions over period of years preventing maintenance of suit.

6. Use of water for domestic purposes from so-called potholes does not authorize injunctive relief as against interference with appropriated rights to water of river.

7. In suit against owner of reservoir to restrain interference with water rights antedating storage rights of defendant, decree authorizing parties to demand of defendant water for irrigation purposes whenever it could be applied to beneficial use and mak- ing them judges of times when water could be used held erroneous, since such matters should be determined by commissioner of reclamation under C. S., sec. 5606, and sec. 5612, as amended by Laws 1927, chap. 63, sec. 3.

8. In suit against owner of reservoir to restrain interference with water rights, defendant held entitled to exercise its storage rights only so long as other parties had at their headgates amount of water to which they were entitled under their appropriations, as water would have naturally flowed in natural stream prior to construction by defendant and its predecessors in interest of their irrigation system.

9. Construction of dam and use of natural channel of river, if it interferes with water rights of others and will continue to interfere with such rights and deprive such others of water to which they are entitled by reason of prior appropriation, is wrongful and may be enjoined.

10. Although owner of reservoir may be restrained from interfering with water rights of others, methods to be adopted to attain such result cannot be restricted by providing that losses exceeding normal natural loss of river should be borne by defendant's stored water, since to require defendant to thus make good losses would be in effect to require it to respond in damages, supplying water instead of money, or to restrict it in manner in which it must refrain from interfering with water rights of others.

APPEAL from the District Court of the Fourth Judicial District, for Lincoln County. Hon. Ed. L. Bryan, Judge.

Action for an injunction. Decree for plaintiff. Reversed in part affirmed in part and remanded.

Reversed and remanded, with instructions. Costs awarded to appellant.

Martin Silk, Cross-defendant, pro se.

Bissell & Bird, for Appellant.

The injuries complained of by plaintiffs are the damage done to the river channel and to their water rights, and their only proper remedy is an action for damages. (Miller v Northern P. Ry. Co., 24 Idaho 567, Ann. Cas. 1915C 1214, 135 P. 845, 48 L. R. A., N. S., 700; Young v Extension Ditch Co., 13 Idaho 174, 89 P. 296; Boise Valley Const. Co. v. Kroeger, 17 Idaho 384, 105 P. 1070, 28 L. R. A., N. S., 968; 17 C. J. 880; 8 R. C. L. 481; Rabe v. Shoenberger Coal Co., 213 Pa. 252, 5 Ann. Cas. 216, 62 A. 854, 3 L. R. A., N. S., 782; Hart v. Wabash etc. R. Co., 238 Ill. 336, 87 N.E. 367; DeFreitas v. Town of Suisun City, 170 Cal. 263, 149 P. 553; Daniels v. Adair, 38 Idaho 130, 220 P. 107; Seven Lakes Reservoir Co. v. Majors, 69 Colo. 590, 196 P. 334; Bailey v. Idaho Irr. Co., 39 Idaho 354, 227 P. 1055.)

Under the Constitution and laws of Idaho and under the contracts between the United States, the state of Idaho and the Idaho Irrigation Company, the appellant and its predecessor, were authorized to construct the project, including Magic dam, and were and are authorized to utilize the channel of Big Wood River as part of its distribution system. (Art. 1, sec. 14, Const.; C. S., secs. 5560 and 5624.)

Under such circumstances the failure of plaintiffs to allege and prove negligence is fatal to their action. (Jeffers v. Montana Power Co., 68 Mont. 114, 217 P. 652; 1 Bancroft's Code Prac. & Rem. 157; San Gabriel Valley Country Club v. Los Angeles County, 182 Cal. 392, 9 A. L. R. 1200, 188 P. 554; Howell v. Big Horn etc. Co., 14 Wyo. 14, 81 P. 785, 1 L. R. A., N. S., 596.)

In awarding plaintiffs use of the waters of Big Wood River at all times the plaintiffs themselves may judge such use necessary (1907 and 1911); the trial court has contravened the long-established policy of economical use of all waters in this state, as well as the express provisions of the statutes. (Const., art. XV, sec. 5; C. S., secs. 5559, 5606 and 5640; Twin Falls Land & W. Co. v. Lind, 14 Idaho 348, 94 P. 164.)

It was improper to give plaintiffs domestic and stock water during nonirrigation seasons when the record does not contain any evidence of an actual diversion for such purposes during such times, nor any proof of the posting and recording of the statutory appropriation notices, as one of these methods must be pursued in order to perfect a valid water right. (Nielson v. Parker, 19 Idaho 727, 115 P. 488; Hutchinson v. Watson Slough etc. Co., 16 Idaho 484, 133 Am. St. 125, 101 P. 1059.)

James & Ryan, Hawley & Hawley, Adam B. Barclay, W. A. Brodhead, Frank Stephan, Attorney General, and Sullivan, Sullivan & Van Winkle, each for Certain Respondents.

In this case the plaintiffs are not asking damages, but seek to have the defendant reclamation commissioner and the defendant company restrained from violating the Frost decree and recognize the decreed rights of these plaintiffs and restore the administration of the stream to the same system and plan that was in vogue from 1910 to 1925. If this idea of the appellant is correct, then no one could ever obtain an injunction, because the answer would be immediately made, "sue for damages." We submit that equity always has jurisdiction to restrain the violation of a right and to keep in this instance the defendant from taking the property of the plaintiffs. The defendant ignores the power of an equity court and insists that wrong cannot be prevented but merely compensated. This is not good law. One always has an election of remedies for wrong suffered.

Cases holding to this effect are: Coleman v. Jaggers, 12 Idaho 125, 118 Am. St. 207, 85 P. 894; Largilliere Co., Bankers, v. Kunz, 41 Idaho 767, 244 P. 404; Sunderlin v. Warner, 42 Idaho 479, 246 P. 1; Christman v. Rinehart, 46 Idaho 701, 270 P. 1059; H. W. Johns-Manville Co. v. Allen, 37 Idaho 153, 215 P. 840; Smith v. Berryman, 272 Mo. 365, 1 A. L. R. 1692, 199 S.W. 165.

We find a general rule stated in 46 C. J., p. 674.

In the case of Bennett v. Nourse, 22 Idaho 249, 125 P. 1038, in considering the right of one to change his place of diversion, the court held that to be a vested right, providing no injury was done. The court said:

"A subsequent appropriator has a vested right as against his senior to insist upon a continuance of the conditions that existed at the time he made his appropriation, provided a change would injure the subsequent appropriator. "

The court quotes with approval from Wiel on Water Rights, 3d ed., sec. 302, as follows:

"A subsequent appropriator has a vested right against his senior to insist upon the continuance of the conditions that existed at the time he made his appropriation. 'A second appropriator has a right to have the water continue to flow as it flowed when he made his appropriation.' The subsequent appropriator is entitled to the surplus, and any attempt of the prior appropriator to make a sale of such surplus to some one else to the injury of existing appropriators, though subsequent, is of no avail."

Along this line it may be said that in no event could the company maintain the priority of a right vested by conservation or otherwise, over a previously vested right in the stream, since priority of time as between different appropriators is ever recognized as determinative of relative rights. (C. S., sec. 5561; Brose v. Board of Directors, etc., 20 Idaho 281, 118 P. 504; Cottonwood Water etc. Co. v. St. Michael's Monastery, 29 Idaho 761, 162 P. 242; Beaverhead Canal Co. v. Dillon Electric Light etc. Co., 34 Mont. 135, 85 P. 880.)

Having established a right to water, the respondents cannot be deprived of that right by any other than a superior right. (Independent Irr. Co. v. Baldwin, 43 Idaho 371, 252 P. 489.)

To the effect that the right to construct a reservoir in the bed of a stream, the waters of which have been appropriated, is qualified by the condition...

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7 cases
  • Village of Peck v. Denison
    • United States
    • Idaho Supreme Court
    • 27 Enero 1969
    ...('constitutional' method), 37 (priority of right) (1968).2 Gile v. Laidlaw, 52 Idaho 665, 20 P.2d 215 (1933); Arkoosh v. Big Wood Canal Co., 48 Idaho 383, 283 P. 522 (1929); Hayes v. Flesher, 34 Idaho 13, 198 P. 678 (1921); Reno v. Richards, 32 Idaho 1, 178 P. 81 (1918); Lee v. Hanford, 21 ......
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    ...of the Environmental Resources Center of Colorado State University.2 This is in contrast to the situation in Arkoosh v. Big Wood Canal Co., 48 Idaho 383, 283 P. 522 (1929). There silt content in the stream reduced seepage losses through porous stream-bed material. A reservoir was constructe......
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