Bennett v. Nourse

• Decision Date: 03 July 1912
• Citation: 22 Idaho 249,125 P. 1038
• Parties: RICHARD BENNETT et al., Appellants, v. F. A. NOURSE et al., Respondents
• Court: Idaho Supreme Court

125 P. 1038

22 Idaho 249

RICHARD BENNETT et al., Appellants, v. F. A. NOURSE et al., Respondents

Supreme Court of Idaho

July 3, 1912

WATER RIGHTS-POINT OF DIVERSION-CHANGE OF-PRIORITIES-IRRIGATION-APPLICATION OF WATER TO BENEFICIAL USE-REASONABLE TIME-CHANGE OF POINT OF DIVERSION.

(Syllabus by the court.)

1. Under the provisions of sec. 3175, Rev. Stats. of 1887, a person entitled to the use of water may change the place of diversion if others are not injured thereby.

2. Held, that the court erred in not granting B. a water right of 160 inches with a priority as of April 8, 1885.

3. Water that is appropriated for irrigation purposes must be measured to the claimant at the point of diversion.

4. Held, that the court erred in not granting D. a water right of 160 inches with a priority of March 31, 1885.

5. An appropriator of water may adopt as his ditch, or a part thereof, a depression or slough, where it is feasible, and thus save the cost of the construction of a ditch.

6. An appropriator of water for irrigation purposes has a reasonable time in which to apply water to his land after conducting it to the point of intended use.

7. Held, under the evidence, that a period of twenty-four years is more than a reasonable time in which to reclaim the 160 acres of land owned by A., and more than a reasonable time to put the water intended for that purpose to a beneficial use.

8. Held, that the court erred in granting F. P. A. more than fifty inches of water with a priority as of April 1, 1884 and thirty inches with a priority as of March 31, 1885, as he had reclaimed only about seventy acres of his land in twenty-four years.

9. The court erred in granting L. A. more than eighty inches of water, and her priority of right should date from March 31 1885.

10. Held, that A. & L. were entitled to 100 inches of water for the irrigation of certain lands held by them with a priority of June 1, 1876, and no more, since they had only reclaimed 100 acres of their 240 acre tract in thirty-two years.

APPEAL from the District Court of the Fourth Judicial District for Elmore County. Hon. Edward A. Walters, Judge.

Action to determine the amount and priorities of water rights for Canyon creek, Elmore county. Judgment and decree modified.

L. B Green, Wyman & Wyman, and Richards & Haga, for Appellants.

Decree modified and remanded, with instructions. Costs awarded to the appellants.

A trespasser cannot by his wrongful act make a valid appropriation. (McGuire v. Brown, 106 Cal. 660, 39 P. 1060, 30 L. R. A. 384; Benton v. Johncox, 17 Wash. 277, 61 Am. St. 912, 49 P. 495, 39 L. R. A. 107; Wiel on Water Rights, 3d ed., sec. 221; Sturr v. Beck, 133 U.S. 541, 10 S.Ct. 350, 33 L.Ed. 761; Le Quime v Chambers, 15 Idaho 405, 98 P. 415, 21 L. R. A., N. S., 76; Smith v. Deniff, 24 Mont. 20, 81 Am. St. 408, 60 Pa. 398, 50 L. R. A. 741; Prentice v. McKay, 38 Mont. 114, 98 P. 1081.)

The right to change the point of diversion is a qualified and not an absolute right, and can be exercised only when it in no way injures subsequent appropriators. (Fort Lyon Canal Co. v. Chew, 33 Colo. 392, 81 P. 37; Walker v. McGinness, 8 Idaho 540, 69 P. 1003; Hargrave v. Cook, 108 Cal. 72, 41 P. 18, 30 L. R. A. 390 (see, also, note, 30 L. R. A. 265); McGuire v. Brown, 106 Cal. 660, 39 P. 1060, 30 L. R. A. 384; Williams v. Altnow, 51 Ore. 275, 95 P. 201, 97 P. 539; Proctor v. Jennings, 6 Nev. 83, 3 Am. Rep. 240; Union Mining Co. v. Dangberg, 81 F. 73.)

A subsequent appropriator has a vested right as against his senior to insist upon a continuance of the conditions that existed at the time he made his appropriation. (Baer etc. Co. v. Wilson, 38 Colo. 101, 88 P. 265; Handy Ditch Co. v. Louden Canal Co., 27 Colo. 515, 62 P. 847; Lobdell v. Simpson, 2 Nev. 274, 90 Am. Dec. 537; Mills' Irrigation Manual, p. 68.)

E. M. Wolfe, W. C. Howie, and Daniel McLaughlin, for Respondents.

It is the policy of the law to prevent the wasting of the water. (Stickney v. Hanrahan, 7 Idaho 424, 63 P. 189; State v. Twin Falls Canal Co., 21 Idaho 410, 121 P. 1039; Hansen v. Larsen, 44 Mont. 350, 120 P. 229; Jacob v. Lorenz, 98 Cal. 332, 33 P. 119.)

The change of the point of diversion would not in any event affect the priority of the person making the change, but would simply be compensated to the injured person in damages, or, if seasonably attacked, might be restrained by injunction. (Hansen v. Larsen, supra, and cases cited.)

SULLIVAN, J. Stewart, C. J., and Ailshie, J., concur.

OPINION

SULLIVAN, J.

This action is to determine the amount and priorities of water rights from Canyon creek, Elmore county. Canyon creek rises in the Danskin mountains, about twenty miles north of Mountainhome, and flows in a southerly direction through the foothills and mountains about twelve miles out upon the sagebrush plain. At the mouth of the canyon is situated what is known as the Ake and Lockman ranch. From that point the creek flows in a southerly direction about three miles, where it divides, one fork going in a westerly direction and called the west fork of Canyon creek, the other in a southerly direction and called east fork of Canyon creek.

The appellant Bennett owns land about four miles south of where said stream forks and has taken a ditch out of the west fork of said creek near the junction, which ditch carries water to and upon his land. The appellant Dienst owns land about six miles south of the Bennett land and has been getting water out of the east fork of the creek for the irrigation of his land. The respondent, the Elmore Irrigated Farms Association, a corporation (which will hereafter be referred to for convenience as the Elmore Association), constructed, or had constructed, in 1891, a reservoir on Rattlesnake creek, several miles easterly from Canyon creek, which reservoir is supplied partly by water taken out by a feeder canal from Canyon creek at the mouth of said canyon, and partly from the waters of Rattlesnake creek. The Elmore Association claims to have acquired the water rights of several persons who had theretofore settled on Canyon creek, and have conveyed said water from Canyon creek through its said feeder canal to its reservoir, and thereafter conveyed it through distributing canals to the lands theretofore irrigated by such water and other lands. The evident purpose of said change of method of conveyance of the water was to avoid the loss of seepage which occurred in the gravelly creek-bed, and it appears that the only irrigated lands on Canyon creek to which water is not thus conveyed by said Elmore Association are the lands of appellants Bennett and Dienst. It is claimed by appellants that the change in the point of diversion of the water rights of those who transferred their rights to the Elmore Association has greatly injured them, and it is also claimed by appellants that before such association changed the points of diversion of said acquired water rights, the water which is now claimed by said Elmore Association flowed down the creek to the forks and helped to swell the volume of water in the creek at the forks, so that more water went down the west fork than is now possible with only a small amount of water at the forks, and it is contended that after the extreme high water recedes the company takes all of the water out through its said feeder canal and does not leave sufficient water in said channel to reach the appellants' lands. The respondent Ake first took water from the east fork of said creek, but after appellant Bennett's ditch had been constructed from the west fork, Ake abandoned his ditch from the east fork and constructed a new ditch, diverting water from the main creek above the forks, and it is contended that the court erred in giving Ake the same priority for his water which is taken out of the main creek as he was entitled to for water taken out of the east fork, and that the change in the point of diversion by Ake injured appellants. It appears that there was no conflict between Ake and Bennett when Ake took his water from the east fork, but when he changed his point of diversion, it is contended that Bennett was affected in the same manner as if Ake had changed his ditch from the east fork to the west fork.

After the Elmore Association had made its agreement with several of the respondents, whereby it was to furnish said parties water from its said reservoir in consideration of their permitting said association to divert the water at the mouth of the canyon and thus change the point of diversion from said stream of the water rights of said respondents, it is contended that said change has greatly injured the appellants. The question is thus presented to the court whether such change in point of diversion may be made where others are injured thereby.

The appropriator of water, or his successor in interest, may change the place of diversion if the rights acquired by others are not thereby interfered with by the change and no injury results to other appropriators therefrom. (See sec. 3 of an act to regulate the use of water, Sess. Laws 1881, p 267; sec. 3157, Rev. Stats. of 1887; and sec. 3247, Rev. Codes.) Sec. 3157, Rev. Stats. of 1887, was in force at the time the changes referred to were made. That section provides that an appropriator may change the place of diversion if others are not injured by such change. It thus clearly appears that the policy of the legislature was to permit a change in the point of diversion if such change injured no subsequent appropriator. A subsequent appropriator has a vested right as against his senior to insist upon a continuance of the conditions that existed at the time he made his appropriation, provided a change would injure the subsequent appropriator. (See Baer Bros. etc. Co. v. Wilson,...