Beecher v. Cassia Creek Irrigation Co., Inc.

• Decision Date: 21 December 1944
• Docket Number: 7143
• Citation: 154 P.2d 507,66 Idaho 1
• Parties: CLIFFORD BEECHER, LOT UDY, ALBERT COTTLE, REUBEN WARD, C. L. SEARS, ART M. WARD, ESTHER PARKE, H. F. DEARDORFF, MAGGIE E. SCOTT, W. E. WILLIAMS, A. J. UDY, LARENZO DARRINGTON, GARRETT HUTCHINSON, C. S. GAMBLE, H. W. WICKEL, LEWIS WICKEL, RICHARD KOSSMAN, MRS. J. S. HUTCHINSON, E. R. PARISH, R. C. WAKE and F. M. KOSSMAN, Respondents, v. CASSIA CREEK IRRIGATION COMPANY, INC., a corporation, and JAMES SPOFFORD, State Reclamation Engineer of the State of Idaho, substituted for E. V. BERG, who was Commissioner of Reclamation of the State of Idaho prior to January 4, 1943, Appellants
• Court: Idaho Supreme Court

154 P.2d 507

66 Idaho 1

CLIFFORD BEECHER, LOT UDY, ALBERT COTTLE, REUBEN WARD, C. L. SEARS, ART M. WARD, ESTHER PARKE, H. F. DEARDORFF, MAGGIE E. SCOTT, W. E. WILLIAMS, A. J. UDY, LARENZO DARRINGTON, GARRETT HUTCHINSON, C. S. GAMBLE, H. W. WICKEL, LEWIS WICKEL, RICHARD KOSSMAN, MRS. J. S. HUTCHINSON, E. R. PARISH, R. C. WAKE and F. M. KOSSMAN, Respondents, v. CASSIA CREEK IRRIGATION COMPANY, INC., a corporation, and JAMES SPOFFORD, State Reclamation Engineer of the State of Idaho, substituted for E. V. BERG, who was Commissioner of Reclamation of the State of Idaho prior to January 4, 1943, Appellants

No. 7143

Supreme Court of Idaho

December 21, 1944

1. Waters and water courses

Appeal to district court from reclamation commissioner's order permitting change in point of diversion and place of use of water is triable de novo.

2. Waters and water courses

Irrigation company could not be denied the right to purchase water rights appurtenant to certain land and change points of diversion thereof, provided transfer of the water and its distribution to stockholders of company will not result in substantial injury to water rights of others. (I.C.A., secs 41-108, 41-216, 54-101.)

3. Property

Waters and water courses

A "water right" is real property and may be sold as any other property. (I.C.A., sec. 54-101.)

4. Waters and water courses

The purchaser of water right acquires no better or greater right than his vendor. (I.C.A., sec. 54-101.)

5. Waters and water courses

The statute permitting person entitled to use of water to change the place of diversion, if others are not "injured" by such change, uses quoted word as applying to injury to water rights of another. (I.C.A., sec. 41-108.)

6. Waters and water courses

A change in point of use of water will not be permitted without limitations if enlarged use in time or amount increases the burden on the stream or decreases volume of water therein to the injury of appropriators on the stream. (I.C.A., secs 41-108, 41-216.)

7. Waters and water courses

Upon appeal from reclamation commissioner's order permitting change in point of diversion and place of use of water district court acquired full equitable jurisdiction over controversy and had jurisdiction to impose reasonable conditions to avoid injury. (I.C.A., secs. 41-108, 41-216.)

8. Waters and water courses

Where irrigation company obtained permission of reclamation commissioner to distribute purchased water to its stockholders at points on tributary of stream on which land was situated to which purchased water had been made appurtenant by federal court decree adjudicating inter-related water rights on such stream and tributary delivery of purchased water to stockholders by rotation was subject to rights of other users to divert water from tributary under their respective decreed water rights and priority dates thereof. (I.C.A., secs. 41-101, 41-106, 41-108, 41-216, 54-101; Const., art. 15, sec. 3.)

9. Waters and water courses

Priority of appropriation gives the better right between those using water. (I.C.A., secs. 41-101, 41-106; Const., art. 15, sec 3.)

10. Waters and water courses

Each junior appropriator, whether above or below other appropriators, is entitled to divert water only at such times as all prior appropriators are being supplied under their appropriations under conditions as they existed at the time the appropriation was made. (I.C.A., secs. 41-101, 41-106; Const., art. 15, sec. 3.)

11. Waters and water courses

Where water has once been decreed and becomes a fixed right, the water must be distributed as in the decree provided.

12. Waters and water courses

Decree restricting delivery of purchased water under certificate of reclamation commissioner permitting change of points of diversion and place of use thereof should follow decree of federal court adjudicating inter-related water rights and should fix priorities as of the same date as fixed in federal decree. (I.C.A., secs. 41-101, 41-106, 41-108, 41-216; Const., art. 15, sec. 3.)

13. Waters and water courses

Water users by subscribing for stock in irrigation company and signing non-interference agreement were not estopped from objecting to change in point of diversion of water by irrigation company, where subscription for stock was made and agreement signed with understanding that prior appropriations by water users would not be jeopardized by change in diversion or transfer of water rights purchased by irrigation company.

14. Waters and water courses

Irrigation company having disclaimed any right or ownership in or to water saved as result of changing place of diversion of water purchased by company to points farther up stream could not question the right of junior appropriators to appropriate and use such salvage water.

15. Waters and water courses

In limiting right of irrigation company to divert purchased water at points farther up stream, court should not consider water right included in company's application for transfer of purchased water but not actually purchased by company.

16. Waters and water courses

That certificate of Department of Reclamation permitting change of place of diversion of water purchased by irrigation company enumerated maximum amounts of water to be diverted and the dates of use without limitation did not warrant reversal of decree which definitely fixed the rights of water users and the amounts of water to be diverted with limitations.

Appeal from the District Court of the Eleventh Judicial District of the State of Idaho, for Cassia County. Hon. James W. Porter, Judge.

Affirmed in part, reversed in part, and remanded with instructions.

Bissell & Bird, and Bert H. Miller, Attorney General, for appellants.

Both under the constitution, the Statutes and the decisions of the Supreme Court of the State, the law is settled beyond dispute or question that the right of an appropriator from a stream is limited to water at that time available, that is to say, water that has not heretofore been appropiated. The right is limited and defined, by the conditions that existed at the time each various appropriation was made.

Each successive appropriator is entitled to divert water only at such times, as all prior appropriators are being supplied in full, under the conditions as they existed at the time the appropriation was made. (3rd W1E1 on Water Rights, sec. 300, 301, 302 and 303; Crocket v. Jones, 47 Ida. 497; Morris v. Bean, 146 F. 42, Affirmed 159; U.S. 651.)

It is also well settled that the relative position of the appropriator, whether above or below the other, is immaterial. (Hill v. King , 8 Cal. 336; Windsor Co. v. Hoffman Co., 109 P. 422; Morris v. Bean, supra.)

A water right in Idaho is a property right. It is subject to sale and disposition, either with or without the land for which it was originally appropriated. (Hard v. Boise City I & I Co., 9 Ida. 589, 76 P. 331; Bennett v. T.I.M.S.L. & W. Co., 27 Ida. 643, 150 P. 336; Glavin v. Salmon River Canal Co., 39 Ida. 3, 226 P. 739; Twin Falls Canal Co. v. Shippen, 46 Ida. 787, 271 P. 578; In re Rice, 50 Ida. 660, 229 P. 664.)

The right to change the point of diversion and place of beneficial use of a water right is an inherent property right, being incidental to it as to any other property. This inherent right is expressly confirmed by Statute:

"A person entitled to the use of water may change the place of diversion if others are not injured by such change; and may extend the conduit by which such diversion is made to places beyond that which the first use was made." (Sec. 41-108, I.C.A.)

The right to change the point of diversion and place of beneficial use is again recognized by the statutes of the State of Idaho and procedure therefor is prescribed by Sec. 41-216, I.C.A., that being the Statute under which this proceeding was instituted and is here presented. The statute above referred to has been before this court many times and is cited and discussed in the cases of Hard v. Boise City Irrigation Co., 9 Ida. 589, 76 P. 331.

The above case is reported in 65 L.R.A. 407 where an elaborate covering note is appended. The rule is recognized in Bennett v. Nourse, 22 Ida. 249, 126 P. 1038; Hall v. Blackman, 22 Ida. 556, 126 P. 1047; Basinger v. Taylor, 30 Ida. 289, 164 P. 522.

In discussing the Statute, this Court recognized the principle that the statutory injury must be real and actual and not merely fanciful.

"It must be shown that the change of such point of diversion resulted in an injury to the respondent, that is to say that he was deprived of the use of water to which he was entitled." (Montpelier M. Co. v. City of Montpelier, 19 Ida. 212, 113 P. 741.)

James R. Bothwell and H. A. Baker for respondents.

An appropriator of water may change the point of diversion and place of use of his appropriation only when the rights of others are not thereby injured. (Sec. 41-216 I.C.A., as amended 1933 Laws, p. 382; Walker v. McGinnis , 8 Ida. 540, 69 P. 1003; Bennett v. Nourse, 22 Ida. 249, 125 P. 1038.)

Junior appropriators have a vested right to the continuance of conditions that existed on the stream at and subsequent to the time they made their appropriations. These conditions may not be changed to their injury by transfer of another water right. (Bennett v. Nourse, 22 Ida. 249, 125 P. 1038; Washington State Sugar Co. v. Goodrich, 27 Ida. 26, 147 P. 1073; Crockett v. Jones, 42 Ida. 652, 249 P. 483; 47 Ida. 497, 277 P. 550.)

A general benefit to the water users of an area is not sufficient to warrant change if injury results to the right of an individual. (Monte Vista Canal Co. v. Centennial Irrig. Ditch Co. (Colo.), 135 P. 981; Trinchera Ranch Co. v. Trinchera Irrig. Dist. (Colo.), 266 P. 204.)

One who purchases a water...