Bassett v. Swenson, 5645

• Citation: 5 P.2d 722,51 Idaho 256
• Docket Number: 5645
• Decision Date: 13 November 1931
• Parties: H. L. BASSETT, Respondent, v. JAMES SWENSON and WILLIS SWENSON, Substituted for JOSEPH SWENSON, Appellants
• Court: United States State Supreme Court of Idaho

5 P.2d 722

51 Idaho 256

H. L. BASSETT, Respondent,
v.
JAMES SWENSON and WILLIS SWENSON, Substituted for JOSEPH SWENSON, Appellants

No. 5645

Supreme Court of Idaho

November 13, 1931

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. HON. Jay L. Downing, Judge.

Action in condemnation. Judgment for plaintiff. Affirmed.

Affirmed.

Earl W. Cory and J. H. Anderson, for Appellants.

An appropriation of water upon private land cannot be initiated by trespass, and any such attempted appropriation is void as against the land owner whose land is trespassed upon. (Wiel on Water Rights, 3d ed., sec. 221; Marshall v. Niagara Springs Orchard Co., 22 Idaho 144, 125 P. 208; Tobey v. Bridgewood, 22 Idaho 566, 127 P. 178; Alaska Juneau Gold Min. Co. v. Ebner Gold Min. Co., 239 F. 638-645, 152 C. C. A. 472.)

In order to make a valid appropriation of water the applicant must have acquired an easement in the lands through which the water runs, which can only be acquired by grant from the owner, by condemnation proceedings or by prescription. ( Prentice v. McKay, 38 Mont. 114, 98 P. 1081; Marshall v. Niagara Springs Orchard Co., supra.)

Under the provisions of the Idaho Constitution private property may be taken upon the theory that the use will develop the material resources of the state, but the courts must determine whether a particular use and the resource are material within such provision. (Const., art. 1, sec. 14; Washington W. P. Co. v. Waters, 186 F. 572; Blackwell Lumber Co. v. Empire Mill. Co., 28 Idaho 556, Ann. Cas. 1918A, 189, 155 P. 680.)

"The power of eminent domain cannot be used by a private person to promote private enterprises, no matter how necessary it may be to their success, or however beneficial to the public, under Constitution, art. 1, section 14." (Gravelly Ford Canal Co. v. Pope & Talbot Land Co., 36 Cal.App. 556, 178 P. 150.)

Merrill & Merrill, for Respondent.

A trespass was not committed by respondent when he secured the data used in his application for a permit to use the waterfalls for power purposes because he did not go upon appellant's land. A trespass referred to in the case of Marshall v. Niagara Springs Orchard Co., 22 Idaho 144, 125 P. 208, must be a physical entry. (C. S., sec. 5569; Welch v. Seattle & M. R. Co., 56 Wash. 97, 105 P. 166, 26 L. R. A. N. S., 1047; Suter v. Wenatchee Water Power Co., 35 Wash. 1, 102 Am. St. 881, 76 P. 298; Butala v. Union Electric Co., 70 Mont. 580, 226 P. 899.)

The right of eminent domain may be exercised in the acquisition of a site and right of way for the generation and transmission of electrical energy. (C. S., sec. 7404, subd. 6; Const., art. 1, sec. 14; art. 15, sec. 3; Hollister v. State, 9 Idaho 651, 77 P. 339; Washington Water Power Co. v. Waters, 19 Idaho 595, 115 P. 682; Washington Water Power Co. v. Waters, 186 F. 572; Lamborn v. Bell, 18 Colo. 346, 32 P. 989; 2 Kinney on Irrigation, sec. 1072.)

MCNAUGHTON, J. Lee, C. J., and Givens and Varian, JJ., concur.

OPINION [5 P.2d 723]

[51 Idaho 259] MCNAUGHTON, J.

This is an action to condemn a plot of land 150 feet by 180 feet as a diversion and power site incident to the appropriation of 20 second-feet of the waters of Whiskey Creek for power purposes, to wit: to generate electric current for use on respondent's farm.

The assignments of error (1) question plaintiff's right to appropriate the water on a claim that the permit granted by the Commissioner of Reclamation is void because initiated by trespass, and also abandoned, claiming that the plaintiff did not begin work within the time first limited by the commissioner; (2) question the right of eminent domain in behalf of this use; (3) question the court's rulings; in permitting amendment of the complaint during the trial, changing the boundaries of the plot for which condemnation is sought; on admission of evidence; on instructions; and on taxation of costs.

It is quite generally held that a water right initiated by trespass is void. That is to say, one who diverts water and puts it to a [5 P.2d 724] beneficial use by aid of a trespass does not, pursuant to such trespass, acquire a water right. Any claim of right thus initiated is void. (Marshall v. Niagara Springs Orchard Co., 22 Idaho 144, 125 P. 208; Tobey v. Bridgewood, 22 Idaho 566, 127 P. 178; Prentice v. McKay, 38 Mont. 114, 98 P. 1081; Wiel on Water Rights, 3d ed., sec. 221, and cases cited.)

In the case at bar it appears that the plaintiff acquired a permit from the Department of Reclamation to appropriate the waters in question for the use proposed and is now seeking by condemnation an easement in the lands of the defendants in behalf of that use and to authorize an entry to construct the...