Boyer, Application of

• Decision Date: 07 October 1952
• Docket Number: No. 7795,7795
• Citation: 73 Idaho 152,248 P.2d 540
• Parties: Application of BOYER. . On Rehearing
• Court: Idaho Supreme Court

Page 540

248 P.2d 540

73 Idaho 152

Application of BOYER.

No. 7795.

Supreme Court of Idaho.

On Rehearing Oct. 7, 1952.

Parry, Keenan, Robertson & Daly, and Clifford E. Fix, all of Twin Falls, for protestants-appellants.

Merrill & Merrill, Pocatello, for applicant-respondent.

GIVENS, Chief Justice.

Respondent presently owns decreed appropriations of 11.2 cu. ft. per second of water from Big Lost River with dates of priority from June first, 1888 to May tenth, 1897, heretofore appurtenant to the SW 1/4 of Section 30, Tp. 6 North, Range 26 E., Boise Meridian, original diversion point in the NW 1/4 of Section 24, Tp. 6 North, Range 25 E., B. M.

Pursuant to Sections 42-108 and 42-222, I.C., September 16, 1946, respondent applied to the State Reclamation Department for a certificate to transfer 10.88 cu. ft. per second of the above appropriations to the SW 1/4 NW 1/4, south and west of the Oregon Short Line (U. P.) Ry. tracks and the W 1/2 SW 1/4, Section 9 and NW 1/4, SW 1/4 NE 1/4 and NW 1/4 SE 1/4, Section 10, Tp. 3 North, Range 27 East, B. M., with new point of diversion in the NW 1/4 of Section 26, Tp. 4 North, Range 26 East, B. M., thus respectively approximately 18 or 20 miles down river.

Respondent's original point of diversion and land in Section 30 are within the geographical confines of the Big Lost River Irrigation District. His water rights and the water rights of the District are entirely and completely distinct.

The Big Lost River Irrigation District protested the chance on the grounds respondent had abandoned and forfeited his water rights by nonuse for periods of more than five years, Section 42-222, I.C.; that the transfer would injuriously affect the security of the District bonds because the land in Section 30 without water would be practically worthless; that water applied to this land, because of its extreme porosity immediately seeps and percolates back into the river to the benefit of other down stream appropriators; that the change would destroy such benefit; excessive transmission loss, likewise detrimental and excessive allowance for use in Sections 9 and 10.

The Three-In-One Ditch Company's protest before the Department is not in the record, but it joined with the Irrigation District in its appeal to the District Court, both contending, in addition to the above objections, that their several consents were necessary under Section 41-108, I.C.A., as amended, 1947 Session Laws, Chapter 80, page 130, now Section 42-108, I.C.

On the trial de novo, the District Court, in upholding the State Reclamation Engineer in granting the change, found respondent had not abandoned or forfeited his water rights;

'* * * that the lands from which the transfer is sought are unproductive, gravelly and porous and that the waters applied thereto fail to produce crops in sufficient quantity to justify the use of said waters thereon; that the lands to which the water is sought to be transferred are fertile, highly productive, and capable of producing all kinds of agricultural crops with the application of said water; * * *.'

and that the amount of water sought to be applied in addition to the rights already appurtenant to the lands in Sections 9 and 10 is proper for the irrigation thereof; that the consent to the change by neither the Irrigation District nor the Company was necessary; that the liens of the bonds of the District would remain upon the land and the waters, pursuant to statute; that the transfer will not result in any injury whatsoever to any water right claimed or owned by protestants, or any other person, or adversely affect them in any way, and no injury or damage of any kind would be sustained if said transfer is made.

The parties stipulated that respondent had the right, in the event of transfer, to transport his water through the Arco Canal.

Non-Consent of Ditch Company

The petition, on appeal by the Big Lost River Irrigation District and the Three In One Ditch Company from the decision of the State Reclamation Engineer to the District Court, alleged in Paragraph VI, as follows:

'VI.

'That the right to the use of the diversion works and irrigation system used to apply said water to the land to which it is now appurtenant is represented by shares of stock in The Three In One Ditch Company and the irrigation system used to apply the said water to the land to which it is now appurtenant is managed by the District and that neither the District nor the Three In One Ditch Company have consented to the change in place of use or point of diversion applied for by I. W. Boyer.'

Section 42-108, I.C., as amended and presently in force, after authorizing change of point of diversion and place of use, if others are not injured, continues:

'* * * ; if the right to the use of such water, or the use of the diversion works or irrigation system is represented by shares of stock in a corporation * * *, no change in the point of diversion or place of use of such water shall be made or allowed without the consent of such corporation * * *.'

and with another exception, nor pertinent herein.

Under the statute, the right to the use of a ditch for the conveyance of water therein must be represented by stock before the nonconsent of the ditch company will bar change of point of diversion or place of use. The evidence does not show the right to use the Three In One Ditch Company's ditch by respondent or his predecessors in conveying therein the water sought to be transferred, was represented by stock. It was conceded his water right is in no way connected with the water rights of the Big Lost River Irrigation District or the Three In One Ditch Company.

The burden of proof was upon appellants to prove the allegation in their petition. Woodruff v. Butte & Mkt. L. C. Co., 64 Idaho 735 at 740(2-3), 137 P.2d 325.

The statute, therefore, was not applicable and the trial court was clearly justified in finding it was not necessary for respondent to have secured consent for the transfer from the Irrigation District or the Three In One Ditch Company. In re Department of Reclamation, 50 Idaho 573 at page 580, 300 P. 492.

Non-consent of Irrigation District.

The amendment to Section 42-108, I.C., requiring consent by an irrigation district, became effective February 25, 1947. The application herein was filed September 16, 1946 and the District's protest, October 7, 1946, which did not contain this point. This contention first appeared in the Petition on Appeal to the District Court filed March 11, 1948. Appellants contend the amendment, being procedural and remedial, may be given retroactive or retrospective effect. Conceding that it might be, on such theory and not violative of the Constitution as contended by respondent, before a statute will be given retroactive and retrospective effect, the statute itself must contain words which indicate the Legislature intended it to have such retroactive and retrospective effect, and this amendment did not. Peavy v. McCombs, 26 Idaho 143 at page 151, 140 P. 965; Bellevue State Bank v. Lilya, 35 Idaho 270 at page 272, 205 P. 893. Brainard v. Coeur d'Alene A. Min. Co., 35 Idaho 742, 208 P. 855, recognized Bellevue State Bank v. Lilya, supra, the letter being in point herein and Brainard v. Coeur d'Alene A. Min. Co., supra, is not; Cook v. Massey, 38 Idaho 264 at page 268, 220 P. 1088, 35 A.L.R. 200, McCoy v. Krengel, 52 Idaho 626 at page 636, 17 P.2d 547; Kelley v. Prouty, 54 Idaho 225 at page 231, 30 P.2d 769; In re Pahlke, 56 Idaho 338 at page 342, 53 P.2d 1177; Independent School Districts etc., v. Common School Dist. No. 1, 56 Idaho 426 at page 434, 55 P.2d 144, 105 A.L.R. 1267. This amendment not being in effect when the application was initiated, does not apply thereto.

Abandonment and Forfeiture.

Appellants introduced evidence showing that prior to the date of the application for some 30 or 40 years, no water had been used on respondent's lands in Section 30.

Both appellants and respondent throughout the record referred to some sort of an agreement of understanding between the parties that the use of water on the lands in Sections 9 and 10 since 1941, was under some kind of stipulation which did not thereby preserve, or give, respondent any rights. We have searched the record in vain to find this agreement. We have rather parenthetically held that the question of abandonment it not pertinent in a proceeding of this kind. Twin Falls Canal Co. v. Shippen, 46 Idaho 787, 271 P. 578; First Security Bank v. State, 49 Idaho 740, 291 P. 1064; Harris v. Chapman, 51 Idaho 283, 5 P.2d 733. Foregoing such pronouncement, to avoid a multiplicity of suits, and since, though respondent timely objected, this issue was presented and passed on, we meet and decide the point without circumlocution.

J. H. Pearson, the Water Master on Big Lost Rover, testified only surplus water, not respondent's decreed rights, was used on his lands in Sections 9 and 10 until 1946, though other portions of his testimony are clearly susceptible of being interpreted as unequivocally indicating that in 1946 part of this decreed water was used on respondent's lands in the Arco Tract.

M. S. Walker, the ditch rider on the Arco canal in 1941 and 1942, testified he delivered water through the Arco diversion to respondent's lands and that it was the account number (of water) transferred from up by Leslie--thus impliedly identifying it as respondent's appropriation.

Respondent and his son both testified water was used on their lands in the Arco tract between 1941 and 1946 and up to the time of the trial.

Respondent's Exhibit 13 was the Irrigation District's bill or charge to Dave Daniels, Von Ellis and Parley Barr, respondent's renters, for water for 1943 of $22 for 55 acres Arco Tract land at $40 per acre operation and maintenance.

Respondent's Exhibit 14 was receipt by the District for $74.82 for 'Arco tract applied on carrying charges.'

Respondent's Exhibit 15 is a letter from the putative...