Baker v. Ore-Ida Foods, Inc.

Decision Date26 July 1973
Docket NumberORE-IDA,No. 11039,11039
Citation513 P.2d 627,95 Idaho 575
PartiesSimon L. BAKER et al., Plaintiffs and Respondents, v.FOODS, INC., a Delaware corporation, et al., Defendants, Ore-Ida Foods, Inc., a Delaware corporation, HOI Corporation, (formerly Ore-Ida Foods, Inc.), an Oregon corporation, Defendants and Appellants, Golden Valley Land & Cattle Company, a corporation, et al., Defendants and Respondents.
CourtIdaho Supreme Court

Adonis H. Nielson of Nielson, Nielson & Nielson, Burley, R. Allen Wight of Miller, Anderson, Nash, Yerke & Wiener, Portland, Or., for defendants and appellants.

Thomas G. Nelson of Parry, Robertson, Daly & Larson, Twin Falls, for plaintiffs and respondents.

Lloyd J. Walker of Walker, Depew & Kennedy, Twin Falls, for defendants and respondents Golden Valley.

Herman E. Bedke, Burley, for defendants and respondents Glenn Briggs and Hazel Briggs, Bill Brockman and Jane Doe Brockman.

SHEPARD, Justice.

This is an appeal from a judgment for plaintiffs enjoining defendants from operating their irrigation wells. Defendants' wells pumped from a ground water aquifer underlying both plaintiffs' and defendants' land. This Court must for the first time, interpret our Ground Water Act (I.C. § 42-226 et seq.) as it relates to withdrawals of water from an underground aquifer in excess of the annual recharge rate. We are also called upon to consture our Ground Water Act's policies of promoting 'full economic development' of ground water resources and maintaining 'reasonable pumping levels.'

This case focuses on approximately 20 irrigation wells developed during the late 1950's and early 1960' in the Cottonwood Creek-Buckhorn Creek area of Cassia County in southern Idaho. The parties to this suit were engaged in farming operations in that area. Underlying this area is a limestone aquifer of unknown depth. This aquifer is recharged primarily by means of precipitation. There is not enough annual recharge water to satisfy the needs of all the well owners during the summer irrigation season.

Plaintiffs-respondents Baker, et al., originally brought this action in July 1965 seeking to enjoin defendants-appellants Ore-Ida Foods, et al. from pumping irrigation water from their wells until such time as plaintiffs' wells resumed normal production. In February, 1969 the case was tried to the district court sitting without a jury. The trial was essentially a battle between three hydrology experts presented respectively by the plaintiffs-respondents, defendants-respondents and defendants-appellants. The record in the case in voluminous including prolix water records extending back more than 20 years. The district court entered its amended decree October 5, 1971.

The district court found that the parties and their predecessors in interest had developed irrigation wells having a certain order of priority. 1 The district court also found that all of the wells drew water from a common aquifer underlying the area. The aquifer was of unknown depth but was capable of a metes and bounds description. The court further found that the aquifer is recharged primarily by precipitation, at an average rate of 5,500 acre ft. per year. The court concluded that during the period 1961 though 1968 the parties had withdrawn water from the aquifer far in excess of the annual recharge rate causing a 20 ft. per year drop in the aquifer's water level. In other words the parties were apparently 'mining' the aquifer, i. e., perennially withdrawing ground water at rates beyond the recharge rate. Bagley, E. S., Water Rights Law and Public Policies Relating to Ground Water 'Mining' in the Southwestern States, 4 J. Law & Econ. 144, 145 (1961).

The court calculated that one cubic foot per second of water flowing for 24 hours would produce 1.983 acre ft. and held that the average annual natural recharge could be pumped entirely by the four senior wells. 2 The court enjoined pumping from all other wells and assigned further administration of its decree to the Idaho Department of Water Administration (IDWA), (formerly the Department of Reclamation, see I.C. § 42-1801a). The decree granted the IDWA full power to expand or limit the amounts of available water for pumping so long as the pumping never exceeded the annual rate of recharge. The amended decree also granted the IDWA the authority to modify its determination of the annual recharge rate.

Defendants-appellants have assigned as error the following factual findings of the trial court:

That there is a single aquifer capable of metes and bounds description; that the aquifer is primarily recharged by precipitation; that the average annual recharge rate was 5,500 acre ft. per year; that all the wells involved in the case were on the same aquifer; that the water levels in these wells had declined in a similar manner from year to year.

We have examined the record at length and note that there is conflicting testimony as among the experts on all of these points. We conclude that the trial court's findings are supported by substantial, competent, although conflicting evidence and they will not be altered. Factual findings will not be disturbed on appeal when they are supported by substantial though conflicting evidence and they will not be set aside unless clearly erroneous. Ivie v. Peck, 94 Idaho 625, 495 P.2d 1110 (1972); Reardon v. Union Pacific Railroad, 93 Idaho 833, 475 P.2d 370 (1970); I.R.C.P. 52(a).

Appellants assert that Idaho's Ground Water Cat, I.C. § 42-226 et seq., has superseded Idaho's common law rules relating to ground water. Appellants argue that, although they are junior, they are nevertheless entitled, under the doctrine of correlative rights, to a mutual pro rata share of the water in the aquifer. Appellants further assert that pursuant to the Ground Water Act senior appropriators may only enjoin junior appropriators from pumping by showing that the juniors' pumping has exceeded reasonable pumping levels.

We must examine the evolution and development of water law to place these important ground water issues in their proper perspective. While the earliest origins of water law are obscure, the Code of Hammurabi and the Roman law contained provisions concerning irrigation and water rights. In U. S. v. Gerlach Live Stock Co., 339 U.S. 725, 744-745, 70 S.Ct. 955, 94 L.Ed. 1231 (1950) Mr. Justice Jackson summarized the development of water law as follows:

'In the middle of the Eighteenth Century, English common law included a body of water doctrine known as riparian rights. That also was the general Mexican law, if it had any lingering authority there * * * except for a peculiar concession to 'pueblos.' Indeed, riparian-rights doctrines prevailed through western civilization.

'As long ago as the Institutes of Justinian, running waters, like the air and the sea, were res communes-things common to all and property of none. Such was the doctrine spread by civil-law commentators and embodied in the Napoleonic Code and in Spanish law. From these sources, but largely from civil-law sources, the inquisitive and powerful minds of Chancellor Kent and Mr. Justice Story drew in generating the basic doctrines of American water law.'

The law of surface water has evolved along two divergent paths of riparianism and prior appropriation. The origins of the riparian doctrine are disputed and obscure. The riparianism theory came into prominence in both England and the eastern United States during the early 19th Century. Its fundamental precept is that usufructuary rights in a stream's water are created as an incident of ownership of riparian land. Each riparian owner had a co-equal right to the stream's natural flow without any significant alterations of either its quality or its quantity and, therefore, the riparian user must return the water to the stream channel. 1 Clark, Water and Water Rights, § 16 (1967); 1 Hutchins, W. A., Water Rights Laws in the Nineteen Western States, 154-156 (1971).

Riparianism has two distinct allocation theories: natural flow and reasonable use. Under the natural flow theory each riparian owner has an absolute right to the undiminished flow of the stream as it flowed in its natural state. The natural flow theory was harsh and unworkable and the courts evolved the reasonable use theory, i. e., under all the circumstances involved, a determination is made of the reasonability of the use considering the needs of all other riparians. Sax, J. L., Water Law, Planning & Policy, 1-3 (1968); Restatement (Second) of Torts, § 850A (Tent.Draft No. 17, 1971).

Nine western states, plus Alaska and Hawaii have accepted limited forms of riparianism. 1 Clark, Water and Water Rights, §§ 4.3, 15.2 (1967). Eight of the more arid western states (Colorado, Nevada, Arizona, Idaho, Utah, New Mexico, Wyoming and Montana) rejected riparianism and adopted the prior appropriation system. 1 Hutchins, W. A., Water Rights in the Nineteen Western States, 154-156 (1971).

The prior appropriation system was used in both 19th Century Mexico and in the early Mormon settlements in Utah, but it is generally agreed that prior appropriation stems primarily from the customs of the pioneer western miners. 1 Weil, E. C. Water Rights in the Western States, §§ 71 through 81 (3d ed. 1911). Under the prior appropriation doctrine, water rights are created by beneficial use rather than land ownership. The right may be lost by abandonment or nonuse. The water may be beneficially used on nonriparian lands. Disputes between competing appropriators are largely resolved on a seniority basis so that the appropriator with the earliest date of application to a beneficial use will prevail over junior appropriators. 1 Clark, supra; see also I.C. §§ 42-101 to 42-112. In Drake v. Earhart, 2 Idaho 750, 23 P. 541 (1890) Idaho emphasized its allegiance to prior appropriation.

We have heretofore discussed only surface water. The early ground water decisions mirror the riparian doctrine by holding that ground...

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    ...that a prior appropriator of ground water was protected in his historic pumping level.As we explained in Baker v. Ore–Ida Foods, Inc., 95 Idaho 575, 581–82, 513 P.2d 627, 633–34 (1973) : "Noh suggests that a senior appropriator of ground water is forever protected from any interference with......
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    ...application of the GWA as it relates to withdrawals of water from an underground aquifer in excess of the recharge rate. 95 Idaho 575, 584, 513 P.2d 627, 636 (1973). In Baker, senior ground water users brought an action to enjoin junior users from pumping out of a common aquifer. Id. at 576......
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