Bachman v. Reynolds Irrigation District

• Decision Date: 19 March 1936
• Docket Number: 6230
• Citation: 56 Idaho 507,55 P.2d 1314
• Parties: FRED BACHMAN, FRED L. BACHMAN, RAY KENNISON, THOMAS MCMILLAN, OSCAR C. SIMPSON, Respondents and Cross-Appellants, v. REYNOLDS IRRIGATION DISTRICT, an Irrigation District Corporation; THE FEDERAL LAND BANK OF SPOKANE, a Corporation; JOHN E. KEITH and BLANCHE KEITH, His Wife; C. C. TODD and BESSIE TODD, His Wife, Appellants and Cross-Respondents
• Court: Idaho Supreme Court

55 P.2d 1314

56 Idaho 507

FRED BACHMAN, FRED L. BACHMAN, RAY KENNISON, THOMAS MCMILLAN, OSCAR C. SIMPSON, Respondents and Cross-Appellants, v. REYNOLDS IRRIGATION DISTRICT, an Irrigation District Corporation; THE FEDERAL LAND BANK OF SPOKANE, a Corporation; JOHN E. KEITH and BLANCHE KEITH, His Wife; C. C. TODD and BESSIE TODD, His Wife, Appellants and Cross-Respondents

No. 6230

Supreme Court of Idaho

March 19, 1936

WATER AND WATERCOURSES-CONTINUOUS WATERCOURSE-PUBLIC WATERS-APPROPRIATION-DIVERSION AND USE-DITCH RIGHT OF WAY-PRESCRIPTIVE RIGHT-PROOF OF APPLICATION TO BENEFICIAL USE-COMPLIANCE WITH STATUTE-DOCTRINE OF RELATION.

1. Where evidence established Warm Springs Creek as a continuous watercourse, that creek flowed through sloughs did not change its character or prevent appropriation thereof (I. C. A secs. 41-101, 41-103).

2. In suit for adjudication of water rights, evidence held to support finding that waters of Warm Springs Creek, which is formed by waters from natural springs located on privately owned property, are public waters within statute, and hence subject to appropriation (I. C. A., secs. 41-101, 41-103).

3. Trial court's findings and decree on conflicting evidence will not be disturbed.

4. In suit for adjudication of water rights, evidence held to support finding that owners of irrigation ditch which had diverted water from Warm Springs Creek for many years had established right to appropriate a portion thereof by actual diversion and use (I. C. A., secs. 41-101, 41-103).

5. Where owners of irrigation ditch continued to use ditch after owner of land upon which point of diversion was located revoked license, dissolution of injunction against interference with use of ditch held sufficient notice to owner of land of adverse user by owners of ditch so as to start prescriptive periods (I. C. A., secs. 41-101, 41-103).

6. Where owners of irrigation ditch, after repudiation of license by owner of land upon which point of diversion was located, enjoyed use of ditch for prescriptive period continuously, notoriously and under claim of right successors of owner of land could not contend that owners of ditch were mere trespassers (I. C. A., secs. 41-101, 41-103).

7. Prescriptive right of owners of irrigation ditch to maintain point of diversion on another's land held not destroyed by foreclosure decree against owner of land, where owners of ditch continued as prescriptive users for more than five years prior to suit to adjudicate water rights notwithstanding owners of ditch were joined in foreclosure suit (I. C. A., secs. 41-101, 41-103).

8. Irrigation district held not entitled to prove beneficial use of additional amount of water from natural stream where district did not prove issuance of permit, or compliance therewith (I. C. A., secs. 41-101, 41-103, 41-211, 41-1302).

9. Statutes relating to proof of application to beneficial use of public waters and allotment of rights appurtenant to land apply only where there is full compliance with such statutes; otherwise doctrine of relation cannot be invoked (I. C. A., secs. 41-101, 41-103, 41-211, 41-1302).

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. John C. Rice, Judge.

Adjudication of water rights. Modified and remanded with instructions.

Cause remanded, with instructions. Costs awarded to respondents.

Walter Griffiths, for Appellants and Cross-Respondents.

Lakes of a surface area of less than five acres and pools and springs, located and contained wholly upon and within the lands of a person or corporation, are appurtenant to and a part of the lands and belong exclusively to the owners of the lands. (Sec. 41-206, I. C. A. 1932; Kennison et al. v. McMillan Sheep Co. et al., 46 Idaho 754, 270 P. 1062; Marshall v. Niagara Springs Orchard Co., Ltd., 22 Idaho 144, 125 P. 208; Tobey v. Bridgewood, 22 Idaho 566, 127 P. 178.)

Richards & Haga and Davison and Davison, for Respondents and Cross-Appellants.

Sloughs are watercourses and the water thereof are subject to appropriation. (Kinney on Irrigation, vol. 1, p. 513; Hutchinson v. Watson Slough Ditch Co., 16 Idaho 484, 101 P. 1059, 133 Am. St. 125; Turner v. James Canal Co., 155 Cal. 82, 99 P. 520, 132 Am. St. 59, 17 Ann. Cas. 823, 22 L. R. A., N. S., 401.)

The waters of natural springs, particularly where they form a natural stream flowing off the premises on which they rise, are public waters, a right thereto can be acquired by appropriation, diversion and application to a beneficial use, or by prescription, and Warm Springs Creek is a natural stream although its source is in springs. (Marshall v. Niagara Springs Orchard Co., Ltd., 22 Idaho 144, 125 P. 208; Short v. Praisewater, 35 Idaho 691, 208 P. 844.)

Respondents acquired valid water rights by diverting the unappropriated water of Warm Springs Creek and applying it to a beneficial use in irrigating their lands, and their priorities date from such application to beneficial use. (Crane Falls etc. Co. v. Snake River Irr. Co., 24 Idaho 63, 81, 133 P. 655.)

Water rights and ditch rights of way are real property, and may be acquired by prescription, provided, as in the case of respondents, the use is continuous, uninterrupted, open, notorious, hostile, adverse and under claim of right. (Short v. Praisewater, supra; Nielson v. Parker, 19 Idaho 727, 115 P. 488; I. C. A., secs. 5-203 to 5-210; Kinney on Irrigation, 2d ed., vol. 2, sec. 1044, p. 1870; Last Chance Ditch Co. v. Sawyer, 35 Idaho 61, 204 P. 654.)

Water rights decreed to the respective claimants are limited to the amount of water beneficially used, and where a claimant bases his right on diversion and application to beneficial use rather than upon a permit or license from the Department of Reclamation it is error to provide in the decree that claimant will be entitled to an additional amount of water upon subsequent proof before the Department of Reclamation of further application to beneficial use. (I. C. A., sec. 41-1302; Reno v. Richards, 32 Idaho 1, 9, 178 P. 81.)

BUDGE, J. Givens, C. J., Holden, Ailshie, JJ., and Morgan, J., concurring.

OPINION

BUDGE, J.

This suit was commenced by respondents, Bachmans, Kennison, McMillan and Simpson, for the purpose of determining their rights to the waters originating at certain springs, variously known and referred to as Warm Springs, McQuat Springs and Walter Butte Springs. The trial court adjudicated the waters of Warm Springs Creek (the waters of the above springs) basing the awards to each of the parties upon diversion of water and application to beneficial use, as follows: To appellant Keith, 1.72 cubic feet per second with priority of April 1, 1917; to respondents McMillan and Simpson (one tract of land), 1.1 cubic feet per second with priority of April 1, 1917; to respondents Bachmans and Kennison (separate tracts of land), 8.64 cubic feet per second with priority of October 28, 1928; and to appellant Reynolds Irrigation District, 8 cubic feet per second with priority of April 1, 1934, with a proviso for later proof of an additional amount, hereinafter referred to. The award to Keith with first priority is not in controversy, and no issue has been raised by appellants with reference to the priority and water right awarded respondents McMillan and Simpson; however, respondents question the sufficiency of the per acre allotment.

Early records disclose that the springs involved flowed about 40 or 50 inches of water, which, as the court in effect found, flowed through sloughs and a creek to Snake River, when not obstructed. Beginning about 1915 the flow of the springs through natural causes increased to some 324 inches in 1918 and to 1,018.5 inches in November, 1928, since which time the flow has varied between the greatest amount and 830 inches.

Both sides have appealed, appellants urging that the Bachmans and Kennison are entitled to no water for the alleged reason that the springs in question belong to that class of waters owned by the owners of the land on which the springs are located, and that these respondents acquired no rights to the waters or ditches from the owners or their predecessors in interest. Respondents and cross-appellants urge that they acquired their rights by diversion and application to beneficial use for the reason that the waters were public and subject to appropriation and by their cross-appeal urge that the trial court did not allow them sufficient water for the proper irrigation of their lands considering the type of soil and the necessary and reasonable transportation losses.

Logically one of the first points to be determined is with reference to the character of the waters involved. Appellants' specification of error III is to the effect that the court erred in finding that Warm Springs Creek is a natural watercourse, and a tributary of Snake River; that said creek had its origin in the springs heretofore mentioned and that the increased flow which had occurred in said springs had not resulted from any acts of appellants nor their predecessors in interest, because the finding is not supported by the evidence and it was established that the springs are not the source of any natural watercourse, and that the increased flow was caused and induced to some extent by the acts of appellants and their predecessors in interest. It is urged by appellants that lakes of a surface area of less than five acres and pools and springs located and contained wholly upon and within lands of a person or corporation, are appurtenant to and a part of the lands and belong exclusively to the owners of the lands. The evidence in part with relation to Warm Springs Creek consists of certain survey field-notes and a plat made therefrom of the township involved. Respondents' exhibits "K" an...