Basinger v. Taylor

• Decision Date: 03 April 1917
• Citation: 164 P. 522,30 Idaho 289
• 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, Water-master of Little Lost River District, SAMANTHA J. TAYLOR and J. B. TAYLOR, Respondents
• Court: Idaho Supreme Court

164 P. 522

30 Idaho 289

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, Water-master of Little Lost River District, SAMANTHA J. TAYLOR and J. B. TAYLOR, Respondents

Supreme Court of Idaho

April 3, 1917

WATER-WATER RIGHTS-APPROPRIATION-BENEFICIAL USE-PERMITS-DOCTRINE OF RELATION.

1. Under sec. 3 of art. 15 of the constitution, those using water for domestic purposes have a preference over those claiming water for any other use. But in case the water has already been appropriated for another inferior use, the use for a superior purpose is subject to the provision of law regulating the taking of private property for public use.

2. A permit issued by the state engineer is not a water right, and is not in itself evidence of appropriation of water.

3. Under a pleading claiming title to the public waters of this state, a decree must be based upon the amount of water actually diverted and applied to beneficial use.

4. An appropriator of water who seeks to invoke the doctrine of relation in order that the date of priority of his appropriation shall relate back to the date of the initiation of his appropriation must show a substantial compliance with all the provisions of the statute, and also final consummation of the appropriation as defined by the statute and can invoke the doctrine only to the extent of the completion of such appropriation.

5. The holder of a permit issued by the state engineer for the appropriation of water is not entitled to an injunction to prevent the diversion of waters from a stream, unless he shows that he is in a position to make beneficial use of such water.

6. A person entitled to the use of water may change the place of diversion if others are not injured by such change. The right to change the place of diversion is subject to the protection of the rights of other appropriators from the stream.

[As to equitable estoppel as defense to suits to restrain diversion and use of water, see note in Ann.Cas. 1914B, 996]

APPEAL from the District Court of the Sixth Judicial District, for Custer County. Hon. J. M. Stevens, Judge.

Action to quiet title to use of waters. Reversed.

Decree of the trial court reversed and a new trial ordered. No costs awarded on this appeal.

Hansbrough & Gagon and Holden & Holden, for Appellants.

Where a large per cent of the waters of a natural stream is lost by seepage and evaporation if permitted to flow in its natural channel, and one person, by the expenditure of money and labor, constructs an artificial water-way and thereby prevents such loss, and delivers to other appropriators upon the stream the amount of water they have been accustomed to receive on their lands, he is entitled to the amount of water so saved. (Wiel on Water Rights, 2d ed., 360; Wiggins v Muscupiabe Land & Water Co., 113 Cal. 182, 54 Am. St 337, 45 P. 160, 32 L. R. A. 667; Beaverhead Canal Co. v Dillon Electric Light & Power Co., 34 Mont. 135, 85 P. 880; Raymond v. Wimsette, 12 Mont. 551, 33 Am. St. 604, 31 P. 537.)

The person entitled to the use of water may change the place of diversion, if others are not injured by such change. (Sec. 3247, Rev. Codes; Hard v. Boise City Irr. etc. Co., 9 Idaho 589, 76 P. 331, 65 L. R. A. 407.)

The right to change the place of diversion includes cases in which the use of the water amounts to its absorption, or is such as to imply notice to subsequent appropriators that such change may be reasonably expected. (Last Chance Min. Co. v. Bunker Hill & S. Min. etc. Co., 49 F. 430.)

A right for domestic use and culinary purposes is not preferred to a right for irrigation purposes, except of the same date. (Union Mill & Mining Co. v. Dangberg, 81 F. 73.)

The first appropriation of water for useful and beneficial purposes gives the prior right thereto, and the right once vested will be protected and upheld unless abandoned. (Malad Valley Irr. Co. v. Campbell, 2 Idaho 411, 18 P. 52; Geertson v. Barrack, 3 Idaho 344, 29 P. 42; Dunniway v. Lawson, 6 Idaho 28, 51 P. 1032; Hillman v. Hardwick, 3 Idaho 255, 28 P. 438.)

A prior appropriator of water has a right to the use thereof, which is superior to the claim of a riparian proprietor, not based upon appropriation, but on the doctrine of riparian rights. (Drake v. Earhart, 2 Idaho 750, 23 P. 541.)

The law declares a water right to be real property. (Sec. 3056, Rev. Codes; Ada County Farmers' Irr. Co. v. Farmers' Canal Co., 5 Idaho 793, 51 P. 990, 40 L. R. A. 485; Hall v. Blackman, 8 Idaho 272, 68 P. 19.)

Where a person claims the right to the use of water by user, the right dates from the time the water is applied to the land for the irrigation thereof. (Sandpoint Water & Light Co. v. Panhandle Development Co., 11 Idaho 405, 83 P. 347.)

The state engineer has no authority to interfere with vested rights or to grant a permit for the appropriation and diversion of water, when the same has already been appropriated and applied to beneficial use. (Youngs v. Regan, 20 Idaho 275, 118 P. 499; Nielson v. Parker, 19 Idaho 727, 115 P. 488.)

Clark & Brodhead, Higgins & Ambrose and Barber & Davison, for Respondents.

The major portion of the loss was because of the negligence of the individual appellants in the construction and maintenance of the three miles of ditch across the flat from Dry Creek to Wet Creek. (Bennett v. Nourse, 22 Idaho 249, 254, 125 P. 1038; Stickney v. Hanrahan, 7 Idaho 424, 63 P. 189.)

One may change the point of diversion, provided he can so do without injury to others, but a subsequent appropriator has a vested right to insist on the continuance of the conditions at the time he made his appropriations and to have the water continue to flow as it flowed when he made his appropriation. (Bennett v. Nourse, supra; Wiel on Water Rights, 3d ed., 302.)

"Preference to those using water for domestic purposes, subject only to the limitations prescribed by law, is granted by the constitution and laws of this state." (Constitution Idaho, sec. 3, art. 15; Montpelier Mill Co. v. City of Montpelier, 19 Idaho 212, 113 P. 741.)

The claim for water relates back to the date of its first use, and where from year to year the use is extended, the claim to the entire amount relates back to date of first user. (Brown v. Newell, 12 Idaho 166, 85 P. 385; Conant v. Jones, 3 Idaho 606, 32 P. 250; Hall v. Blackman, 8 Idaho 272, 68 P. 19.)

There had been a complete five years' user. The court has held that a four years' user made water appurtenant to the land. (Furey v. Taylor, 22 Idaho 605, 606, 127 P. 676; City of Pocatello v. Bass, 15 Idaho 1, 96 P. 120.)

"The right of one who actually diverts water and applies it to beneficial use, although he has never applied to the state engineer for a permit or procured a permit, is superior and paramount to any right a subsequent appropriator can procure." (Nielson v. Parker, 19 Idaho 727, 115 P. 488, and cases cited; Gard v. Thompson, 21 Idaho 485, 123 P. 497; Speer v. Stephenson, 16 Idaho 707, 102 P. 365; Sandpoint Water etc. Co. v. Panhandle Dev. Co., 11 Idaho 405, 406, 83 P. 347.)

Respondents are entitled as of June, 1908, a date preceding the appellant irrigation company's right by two years. (McGinness v. Stanfield, 6 Idaho 372, 376, 55 P. 1020.)

Where the evidence is conflicting as to the facts, and there is substantial evidence as to the findings of fact by the trial court, findings and decree entered will not be reversed. (Brinton v. Steele, 23 Idaho 615, 131 P. 662.)

RICE, J. Morgan, J., concurs. BUDGE, C. J., Dissenting.

OPINION

RICE, J.

This action was instituted to quiet title to the waters of Dry Creek, in Custer county, and to restrain the defendant Sutcliffe, as water-master, from interfering with the rights of plaintiffs below, appellants here. All of the appellants, except the Blaine County Irrigation Company, were farmers who had used water from said creek for many years for the irrigation of their lands. They had diverted their water from said Dry Creek, across low land and gravel-bars, through a ditch known as "Farmers' Ditch," and discharged the same into Wet Creek at a point about a mile and a half distant from the place of diversion.

On July 6, 1907, the district court decreed these farmers to be entitled to the use of 22 second-feet of the waters of Dry Creek. About June 1, 1908, respondent Taylor located on Dry Creek and began to prepare his lands for cultivation. The same summer he constructed a ditch leading out of Dry Creek a short distance above the Farmers' Ditch. On October 29, 1910, appellant Blaine County Irrigation Company made application for and received permit from the state engineer for 150 second-feet of the water from Dry Creek. This company began the construction of a pipe-line to divert water from the creek about seven miles above respondent's point of diversion. In July, 1912, the pipe-line was completed and water diverted from Dry Creek into Corral Creek, a tributary of Wet Creek.

At this time the appellants who had used the Farmers' Ditch, by agreement with the Blaine County Irrigation Company, changed their point of diversion to the intake of the pipe-line. By the terms of the agreement their water was thereafter to be diverted through the pipe-line, and thence, by way of Corral Creek and Wet Creek, to the place into which their water had formerly been discharged.

The trial court in its decree adjudged that all appellants, except the Blaine County Irrigation Company, were entitled in common to 22 second-feet of the waters of Dry Creek, subject only to the right of the respondents E. K Taylor, Samantha J. Taylor and J. B. Taylor, to water for domestic use,...