Bower v. Moorman

• Decision Date: 23 March 1915
• Parties: SARAH D. BOWER and J. E. BOWER, Her Husband, Respondents, v. D. B. MOORMAN, AGNES E. PARKS and JAMES COCHRAN, Appellants
• Court: Idaho Supreme Court

147 P. 496

27 Idaho 162

SARAH D. BOWER and J. E. BOWER, Her Husband, Respondents, v. D. B. MOORMAN, AGNES E. PARKS and JAMES COCHRAN, Appellants

Supreme Court of Idaho

March 23, 1915

PARTIES INTERESTED-TITLE OF ACTIONS-CONFLICTING EVIDENCE-SUBTERRANEAN WATERS-APPROPRIATION-INTERFERENCE-DIVERSION-ACTUAL PERMANENT DAMAGE-INJUNCTIVE RELIEF-FINDINGS OF FACT-INSUFFICIENT-CAUSE REMANDED.

1. Where it appears that the respondents are the owners in fee of the land upon which artesian wells are located and retain the right to the control and management of water flowing from said wells to the place of distribution, and where it further appears that said respondents are the owners of virtually all of the capital stock of a private corporation to which the right to the use of said waters has been conveyed by deed, a motion for a nonsuit in an action by them to enjoin interference with the flow of water from said wells on the ground that they are not parties in interest will not be entertained.

2. Where there is a substantial conflict in the evidence, the findings of the court will not be disturbed.

3. Sec 3242, Rev. Codes, provides: "The right to the use of waters of rivers, streams, lakes, springs and subterranean waters may be acquired by appropriation."

4. As between appropriators of subterranean waters, the first in time is the first in right.

5. Where subterranean water exists in a state of nature throughout a tract of land the ownership of which is held in different proprietors, it would seem to be impossible to adopt a rule giving each proprietor the absolute right to withdraw all of the subterranean waters from his tract of land, and thus destroy the benefits made possible by the proper regulation of subterranean waters. And an injunction will issue to restrain any permanent interference by an adjoining land owner with the right to the use of subterranean water acquired by a prior appropriator.

6. Before a permanent injunction should issue in a case of this character, the evidence should clearly and conclusively establish that the real cause of the loss of water flowing from the well of a prior appropriator of subterranean water is the construction of the well of a junior appropriator of said subterranean water.

7. If the sinking of M.'s well to the depth that B.'s large well has been sunk, or to a greater depth, would not interfere with the flow of the water in B.'s well, or if there was a loss of water in B.'s well occasioned by the sinking of M.'s well, which, in like quantity, could be returned to B.'s well without material damage, and at the same time water secured in M.'s well, the court would not be justified in issuing a permanent injunction preventing the completion of M.'s well.

8. Should it become necessary to change the method or means of diverting water by a prior appropriator of subterranean waters, that, in and of itself, should not deprive a subsequent appropriator from acquiring unappropriated subterranean water, unless it further appeared that it would be impossible to deliver said water to the diverting works of the prior appropriator.

9. Although it may be found that in the sinking of a well by a land owner direct communication was made with the same artesian belt or basin tapped by an adjoining land owner, who was a prior appropriator of subterranean water, the court would not be justified in issuing a perpetual injunction prohibiting the completion of the well of a junior appropriator of subterranean waters, unless it further conclusively appeared that the prior appropriator would suffer permanent loss of water by reason of the tapping of said artesian belt or basin.

10. The fact that the sinking of a well would endanger the supply of water flowing from a well on adjoining land owned by a prior appropriator of subterranean waters, would not justify the issuance of a permanent injunction, unless it were conclusively shown that the water supply of the first appropriator would be actually and permanently diminished.

11. If in the sinking of a well, the flow from a well of an adjoining land owner and prior appropriator of subterranean water is lessened, before a permanent injunction should issue, it must be conclusively established that the water so lost cannot be returned from the well of the subsequent appropriator to the diversion works of the prior appropriator.

12. Held, that the findings of fact are not sufficient to support the judgment, and it is accordingly ordered that the case be remanded to the district court with directions to suspend the injunction, permitting appellants to continue the construction of the well on said lot 5, until it is established that by reason of the sinking of appellants' well the respondents' well will sustain a material and permanent loss of water supply; and if it shall later appear to the satisfaction of the district court that said actual loss of water has been sustained in respondents' well due to the construction of appellants' well, and such water cannot be returned to the diversion works of respondents, said injunction should be reinstated, permanently closing the well of appellants.

APPEAL from the District Court of the Fourth Judicial District, Twin Falls County. Hon. C. O. Stockslager, Judge.

Action to perpetually restrain the construction of artesian well. Judgment for plaintiff. Modified.

Case remanded with directions.

A. M Bowen and George Herriott, for Appellants.

Land owners whose lands overlie the same artesian basin have coextensive rights to water from such artesian basin, and one land owner cannot convey such water outside the basin for sale or use to the injury of another land owner in the same basin. (Katz v. Walkinshaw, 141 Cal. 116, 99 Am St. 35, 70 P. 663, 74 P. 766, 64 L. R. A. 236; 2 Wiel on Water Rights, 3d ed., p. 974, and cases cited.)

Digging a well upon one's own land to obtain water to irrigate his land within the artesian basin is a reasonable use of his land, and is lawful, even though such well may deprive another land owner within the basin of a certain amount of water. (I Wiel, 3d ed., p. 812, and cases cited; 2 Wiel, 3d ed., p. 1067, sec. 1140.)

The appropriation doctrine as to surface streams commonly called the "Colorado Doctrine" and such as we have in this state does not apply to percolating waters. (2 Wiel, 3d ed., p. 1040.)

"The spirit of the new law of percolating water, as well as the rulings under it, make directly against the law of exclusive rights by priority of appropriation." (Sullivan v. Northern Spy Min. Co., 11 Utah 438, 40 P. 709, 30 L. R. A. 186; 2 Wiel, 3d ed., p. 1045, sec. 1106, and cases cited.)

The law relative to percolating water in the soil, whether diffused or tributary to wells or springs or artesian supply, is separate and distinct from the law of appropriation. In some of the arid states, recognizing priority of appropriation it is held that the common law prevails as to percolating water, and the owner of the soil has absolute control of percolating water in the soil even though its use may dry up the well of another. (Sullivan v. Northern Spy Min. Co., supra; Southern Pacific Ry. Co. v. Dufour, 95 Cal. 615, 30 P. 783, 19 L. R. A. 92; Mosier v. Caldwell, 7 Nev. 363; Crescent M. Co. v. Silver King M. Co., 17 Utah 444, 70 Am. St. 810, 54 P. 244; Willow Cr. Irr. Co. v. Michaelson, 21 Utah 248, 81 Am. St. 687, 60 P. 943, 51 L. R. A. 280. See notes, 30 L. R. A. 186; 9 L. R. A. 92; 21 L. R. A., N. S., 76.)

In other states the common law has been modified by allowing the owner of land containing percolating water feeding springs, wells or artesian basins the right only to a reasonable use of such water. This rule is the one now generally recognized. (Pence v. Carney, 58 W.Va. 296, 112 Am. St. 963, 52 S.E. 702, 6 L. R. A., N. S., 266; Cohen v. La Canada L. & W. Co., 142 Cal. 437, 76 P. 47; Stillwater Water Co. v. Farmer, 89 Minn. 58, 99 Am. St. 541, 93 N.W. 907, 60 L. R. A. 875; Barclay v. Abraham, 121 Iowa 619, 100 Am. St. 365, 96 N.W. 1080, 64 L. R. A. 255.)

So far as we are aware, it has never been held anywhere that percolating water in the soil is anything but a part of the soil itself, and not subject to appropriation. Some courts limit the land owner's right to a reasonable use, others allow him correlative rights, and others give him absolute control, but always he has the right to some use thereof. ( Willow Cr. Irr. Co. v. Michaelson, supra; Howard v. Perrin, 8 Ariz. 347, 76 P. 460; Crescent Min. Co. v. Silver King Min. Co., 17 Utah 444, 70 Am. St. 810, 54 P. 244; Katz v. Walkinshaw, supra; City of Emporia v. Soden, 25 Kan. 588, 37 Am. Rep. 265; Boyce v. Cupper, 37 Ore. 256, 61 P. 642; Case v. Hoffman, 100 Wis. 314, 72 N.W. 390, 74 N.W. 220, 75 N.W. 945, 44 L. R. A. 728; Mosier v. Caldwell, 7 Nev. 363.)

Under the constitution and statutes of Idaho, the only waters subject to appropriation are public waters. This consists of waters flowing in their natural channels, springs and lakes. The term "subterranean waters" as used in sec. 3242 must therefore refer to such underground bodies or streams as would be considered public waters. (Const., art. 15; Rev. Codes, secs. 3240, 3253, 3268; Walbridge v. Robinson, 22 Idaho 236, 125 P. 812, 43 L. R. A., N. S., 240.)

The only waters to which the legislature could grant the right of appropriation would be public waters; any interference with private waters would be a violation of the rights of private property. (King v. Chamberlin, 20 Idaho 504, 118 P. 1099; Wiel on Water Rights, sec. 233.)

The burden of proof as to the existence of an underground stream is on him who asserts the same. In the absence of a showing the presumption is that underground water is percolating water. (2 Kinney on Irrigation, p. 2116, and cases cit...