Basinger v. Taylor

• Decision Date: 30 December 1922
• Citation: 211 P. 1085,36 Idaho 591
• Parties: PERRY BASINGER, C. M. MULKEY, A. H. WILLIAMS, J. N. WILDE, W. H. BARTELL, Sr., O. P. WILLIAMS and BLAINE COUNTY IRRIGATION COMPANY, LTD., a Corporation, Appellants, v. E. K. TAYLOR, R. L. SUTCLIFFE, Watermaster of Little Lost River District, and SAMANTHA J. TAYLOR and J. B. TAYLOR, Respondents
• Court: Idaho Supreme Court

211 P. 1085

36 Idaho 591

PERRY BASINGER, C. M. MULKEY, A. H. WILLIAMS, J. N. WILDE, W. H. BARTELL, Sr., O. P. WILLIAMS and BLAINE COUNTY IRRIGATION COMPANY, LTD., a Corporation, Appellants, v. E. K. TAYLOR, R. L. SUTCLIFFE, Watermaster of Little Lost River District, and SAMANTHA J. TAYLOR and J. B. TAYLOR, Respondents

Supreme Court of Idaho

December 30, 1922

IRRIGATION-CHANGE OF POINT OF DIVERSION-AVOIDANCE OF INJURY TO OTHERS-CONSERVATION OF WATER-RIGHT GAINED BY-UNREASONABLE DITCH LOSSES-WATER LICENSE.

1. Such conditions must be imposed upon a water user who seeks to exercise the right to change his point of diversion as will prevent injury to other appropriators.

2. One who, by constructing artificial works, prevents the loss of water flowing in a stream, and augments the amount of water available from it, has the right to use the water so conserved. (Rule announced in Reno v. Richards, 32 Idaho 1 178 P. 81, approved.)

3. One diverting water from a stream must so construct his ditch as to prevent unreasonable loss.

4. In order to obtain a valid license to use water for irrigation as distinguished from a right based entirely upon actual user, one must substantially comply with the statutes relating to such licenses.

APPEAL from the District Court of the Sixth Judicial District, for Butte County. Hon. F. J. Cowen, Judge.

Action to establish priorities to use of water for irrigation. Judgment modified.

Judgment affirmed. No costs awarded on this appeal.

Peterson & Coffin, for Appellants.

The court erred in failing to make a finding on the issue of whether the appellant company had effected a saving of water by the construction of the pipe-line and in failing to award the appellant company a prior right to the 33 second-feet of water shown by the evidence to have been saved by it. (C. S secs. 6866, 6867; Carson v. Thews, 2 Ida: 176, 9 P. 605. First Nat. Bank of Lewiston v. Williams, 2 Idaho 670, 23 P. 552; Standley v. Flint, 10 Idaho 629, 79 P. 815; Wood v. Broderson, 12 Idaho 190, 80 P. 490; Reno v. Richards, 32 Idaho 1, 178 P. 81.)

A party who saves a portion of the waters of a natural stream by artificial means, such as the construction of a pipe-line, thereby acquires a prior and paramount right to the use of the waters so saved, as against all other appropriations from the stream. (1 Wiel on Water Rights, 3d. ed., sec. 38a, p. 41; Pomona Land & Water Co. v. San Antonio Co., 152 Cal. 618, 93 P. 881; Wiggins v. Muscupiable Land & Water Co., 113 Cal. 182, 45 P. 160; Beaverhead Canal Co. v. Dillon, 34 Mont. 135, 85 P. 880; Fuller v. Sharp, 33 Utah 431, 94 P. 813; Smith v. Duff, 39 Mont. 382, 102 P. 984; Reno v. Richards, supra.)

The individual plaintiffs were bound to use only due care, under all the circumstances, to prevent loss of water by seepage from the ditch constructed by them in 1891 and used to convey water to their lands until the construction of the pipe-line by the plaintiff, Blaine County Irrigation Company, Ltd., in the year 1912. (Burrows v. Fox, 98 Cal. 63, 32 P. 811; Sterling v. Pawnee Ditch Co., 42 Colo. 421, 94 P. 339, 15 L. R. A., N. S., 239; Joseph Milling Co. v. Joseph, 74 Ore. 296, 144 P. 465.)

If the statutory method of appropriation is adopted, a complete compliance with the statutory provisions is necessary in order to invoke any right whatever under the application for permit. This question was considered on the former appeal, the decision in which has become the law of the case. (Duckworth v. Watsonville Water & Light Co., 158 Cal. 206, 110 P. 927; Bailey v. Tintinger, 45 Mont. 154, 122 P. 575; Washington State Sugar Co. v. Goodrich, 22 Idaho 38, 147 P. 1073.)

Barber & Barber, W. A. Brodhead and Chase A. Clark, for Respondents.

The actual appropriation, though not preceded by the posting or recording of any notice, is valid as against subsequent appropriators thereof. (Wells v. Mantes, 99 Cal. 583, 34 P. 324; Waterson v. Saldunbehere, 101 Cal. 107, 35 P. 432; Hargrave v. Cook, 108 Cal. 72, 41 P. 18; Wells v. Kreyenhagen, 117 Cal. 329, 49 P. 128; Union etc. v. Dangberg, 81 F. 73; Murray v. Tingley, 20 Mont. 260, 50 P. 723.)

The appellant is absolutely without right to change the point of diversion of any of the waters of Dry Creek when such a step would be to the injury of respondents' prior right. (Hall v. Blackman, 22 Idaho 556, 126 P. 1045; Bennett v. Nourse, 22 Idaho 249, 125 P. 1038; Joyce v. Rubin, 23 Idaho 296, 130 P. 793; Wiel on Water Rights, 3d ed., 302.)

It stands the water user in hand to construct his ditch so there will be the least possible waste of water, and by either piping or cementing portions of the ditch where the greatest waste occurs he can save much of his water. (Bennett v. Nourse, supra; Stickney v. Hanrahan, 7 Idaho 424, 63 P. 189.)

"The theory of the law is that the public waters of this state shall be subjected to the highest and greatest duty. (Van Camp v. Emery, 13 Idaho 202, 89 P. 752; Niday v. Barker, 16 Idaho 73, 101 P. 254; State v. Twin Falls etc. Co., 21 Idaho 410, 121 P. 1039; Farmers' etc. v. Riverside etc., 16 Idaho 525, 102 P. 841.)

The only right obtained by the appellant company would be a prior right to divert and appropriate such water as it actually saved to the stream; the reward for its labor being not the water, but the first right to make a regular appropriation thereof, a vested right to which it could obtain only under the statutory procedure, or by five years adverse use. (Rabido v. Furey, 33 Idaho 56, 190 P. 73; Reno v. Richards, 32 Idaho 10, 178 P. 81; Hall v. Blackman, 8 Idaho 272, 68 P. 19; Lee v. Hanford, 21 Idaho 327, 121 P. 558.)

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. Priority of time as between different appropriators is ever recognized as determinative of relative rights. (C. S. 5561; Brose v. Board of Directors, etc., 20 Idaho 281, 118 P. 504; Cottonwood etc. Co. v. St. Michaels Monastery, 29 Idaho 761, 162 P. 242; Beaverhead Canal Co. v. Dillon, 34 Mont. 135, 85 P. 880.)

The lack of a finding as to saving is immaterial, as no right could be predicated thereon. (Storey & Fawcett v. Nampa, etc., 32 Idaho 713, 187 P. 946; Berlin M. Works v. Dehlbom, 29 Idaho 494, 160 P. 746; Tage v. Alberts, 2 Idaho 271, 13 P. 19; Wood v. Broderson, 12 Idaho 198, 85 P. 490.)

MCCARTHY, J. Dunn and Lee, JJ., concur, Budge, J., concurs in the conclusion.

OPINION

MCCARTHY, J.

This is an action to quiet title to the waters of Dry Creek, a stream in Butte county, to restrain the watermaster of the Little Lost River district from interfering with appellants' rights, to establish the rights of the individual appellants to change their point of diversion on Dry Creek to the intake of the pipe-line of the corporate appellant, and to quiet title in the said corporate appellant to the use of 33 second-feet of water, which it claims to have salvaged by diverting through its pipe-line, and 45 second-feet of the unappropriated water of said Dry Creek. In their answer and cross-complaint respondents by apt allegations put the individual appellants on proof of their right to change their point of diversion, and the corporate appellant upon proof of its right to use the waters of Dry Creek by virtue of salvage or otherwise. They themselves claim a right to the use of 15 second-feet of the waters of said Dry Creek prior to any right of the corporate appellant.

The trial court decreed that the individual appellants have the right to use 22 second-feet of said water with priority of 1891, which it decreed ratably to their lands, and granted them the right to change their point of diversion to the intake of the corporate appellant's pipe-line; that respondents are entitled to 9.06 second-feet, share and share alike, with a priority of April 11, 1907, subject to the prior right of the individual appellants but prior to any right of the corporate appellant; that the corporate appellant has the right to use 21.05 second-feet of said water, conserved by the construction of its pipe-line, and also 45 second-feet with priority of June 1, 1912. Among the many assignments of error made by appellants it will be necessary to notice expressly only three, that the court erred: (1) in not finding the exact amount of water saved by the construction of the corporate appellant's pipe-line, (2) in finding that respondents are entitled to 9.86 second-feet of the waters of Dry Creek, (3) in finding and decreeing that the water right of respondents is prior to that of the corporate appellant.

This is the second trial of this action, it having been tried once before and heard on appeal in this court, the decision being found in 30 Idaho 289, 164 P. 522. Speaking of the right of individual appellants to change the point of diversion this court said:

"In this action appellants also ask that the right of those taking water through the Farmers' Ditch to change their point of diversion be confirmed. Under the statute their point of diversion may be changed, provided such change causes no injury to any other appropriator of water. Respondents are the only parties who could claim to be injured in this case. Their rights must be determined in this action, and when so determined must be protected. A sufficient amount of water must be permitted to flow down the creek to the point of diversion of respondents to satisfy their rights according to their respective priorities. Subject to rights of respondents, the appellants are entitled to change their point of diversion."

Prior to 1912 the individual appellants diverted their water through a ditch called the "Farmers' Ditch." The evidence shows, without any real conflict, that the loss of water from this...