Bassett v. Swenson
| Citation | 51 Idaho 256,5 P.2d 722 |
| Decision Date | 13 November 1931 |
| Docket Number | 5645 |
| Parties | H. L. BASSETT, Respondent, v. JAMES SWENSON and WILLIS SWENSON, Substituted for JOSEPH SWENSON, Appellants |
| Court | United States State Supreme Court of Idaho |
WATER AND WATERCOURSES-APPROPRIATION-PERMIT-ABANDONMENT-EXTENSION OF TIME BY DEPARTMENT OF RECLAMATION-TRESPASS-EMINENT DOMAIN-PUBLIC USE-CONDEMNATION PROCEEDINGS-COSTS.
1. One diverting water and putting it to beneficial use by aid of trespass does not, pursuant to such trespass, acquire water right (C. S., secs. 5568-5583).
2. Applicant had right to make application for permit to put waterfall to beneficial use, although he had no right or title in land on which waterfall was situated (Const., art 15, sec. 3).
3. Permit of applicant who acquired necessary data for application for permit to put waterfall to beneficial use without going on land to which he had no right or title held lawful (C. S., secs. 5568-5583; Const., art. 15, sec. 3).
4. Reclamation commissioner, on showing that defendants refused to permit applicant obtaining permit to put waterfall to beneficial use to enter on premises, properly extended time within which applicant could begin work (C. S., sec. 5570).
5. Right of eminent domain is sovereign right.
6. Generally, right of eminent domain is granted on behalf of public uses.
7. Whether claimed right is within Constitution designating as public all uses necessary to development of material resources of state so as to entitle claimant to right of eminent domain is judicial question for courts (Const., art 1, sec. 14).
8. As regards right to eminent domain, power in streams of state capable of being developed into electrical energy is one of "material resources of state" (Const., art. 1, sec 14).
9. Use of land necessary to development of stream for electrical energy constitutes public use for which condemnation will lie (C. S., secs. 5568-5583; Const., art. 1, sec. 14, and art 15, sec. 3).
10. Permitting condemnor to amend complaint during trial by changing description of land sought in developing stream for electrical energy held not error.
11. In condemnation case, excluding opinions regarding value of property as power site held proper, there being no showing witnesses had expert knowledge of values.
12. If jury in condemnation case do not find actual damage results to portion of tract not taken, nominal damages need not be returned (C. S., sec. 7414, subds. 2, 3).
13. Condemnor must pay just compensation for property taken and all costs (C. S., sec. 7421; Const., art. 1, sec. 14).
14. In condemnation case, item for engineer's fees held properly stricken from defendants' cost bill.
15. In condemnation case, costs are allowed to land owner regardless of who may be successful party on appeal.
16. Item for briefs in condemnation case held allowable as costs under court rules, which was equivalent to statutory allowance.
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.)
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 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 works. Defendants also have a permit to appropriate these waters, which permit was issued subsequent to that of the plaintiff.
In Marshall v. Niagara Springs Orchard Co., supra, and in Tobey v. Bridgewood, supra, it was held that because the permit holder had not acquired by purchase or condemnation the right to enter the lands upon which the diversion was situate, for the purpose of making the inspection and survey which was necessary in supplying the data for the application, on that account the application and permit pursuant to it were void. The defendants in this case rely upon the authority of the above cases and claim that no permission or grant of right was given plaintiff to enter the lands in question for the purpose of making a survey and acquiring the data in his application and that plaintiff's application and permit founded upon it are void as initiated by trespass and that condemnation will not lie in this case for want in the condemnor of a prior right to appropriate the water.
Sec. 3, art. 15, of the Constitution provides in part:
"The right to divert and appropriate the unappropriated waters of any natural stream to beneficial uses, shall never be denied."
C. S., sec. 5568, provides:
C. S., sec. 5569, provides:
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