Cantlin v. Carter

Decision Date22 December 1964
Docket NumberNo. 9395,9395
Citation88 Idaho 179,397 P.2d 761
PartiesEverett E. CANTLIN, Plaintiff and Appellant, v. George N. CARTER, State Reclamation Engineer of the State of Idaho, or his successor, V. A. Coiner, Delmar Coiner, Wesley Thompson, Harold Sweeney, Matthew Schutter, Ervin G. Wilson and Marshall Watson, Defendants and Respondents.
CourtIdaho Supreme Court

Robert F. McLaughlin, Mountain Home, for appellant.

Jones, Pomeroy & Jones, Pocatello, for respondents.

McFADDEN, Justice.

On October 8, 1959, Everett E. Cantlin, the appellant herein, plaintiff in the district court, filed with the State Reclamation Engineer an application for a permit to appropriate 2.4 cubic feet per second of water 'from swamp land near May, Idaho'. The State Reclamation Engineer approved the application a few days later. Appellant some 18 months later submitted proof of completion of works, and sought to submit proof of application of the water to a beneficial use, but in the meantime, certain protestants, filed with the Department of Reclamation, (other than the State Reclamation Engineer), a protest to the granting to appellant of a license. The protestants, who are the respondents herein, asserted that they were land owners and users of water from Hardscrabble ditch, and that the water which appellant sought to appropriate by his permit was seepage water which the respondents had used and enjoyed during prior years; that they had superior rights to the water in question and would be injured if the department granted license to the appellant.

After receipt of the protest the State Reclamation Engineer issued an order denying the proof submitted by the appellant and cancelled the permit. The order stated:

'* * *

'WHEREAS, from information available to the Department of Reclamation it appears that the source of water filed on is appropriated water and decreed to other parties in the case entitled John T. Bernard, Plaintiff, vs. S. F. Horn, et al, Defendants; and

'WHEREAS, it is evidence that the water of this nature is not subject to appropriation under the terms and provisions of the permit law, and that the said Permit No. 28192 was erronrously issued;

'NOW THEREFORE, IT IS HEREBY ORDERED that the said Proofs of Completion of Works and Beneficial Use be denied; that said Permit No. 28192 be cancelled, set aside and held for naught;' and

* * *

* * *

Appellant then filed in the district court his appeal from such order asserting in the petition on appeal,

'* * *

'That plaintiff's reasons for appeal from the judgment and order of the Commissioner are as follows:

'(1) That the facts do not sustain the judgment and order.

'(2) That the judgment is against law.

'(3) That the judgment is not sustained by the facts and the decree upon which the State Reclamation Engineer based his decision.

'(4) That under the facts and law the application should be granted for the following reasons:

'(a) That it is within the province of the Plaintiff to apply the water sought to be appropriated to the use proposed and that the applicant, and his predecessors have a beneficial interest in the subject matter.

'(b) That the swamp and seepage waters of Section 26, Township 15 North, Range 21 East of the Boise Meridian are public water subject to appropriation under the constitution or the laws of the State of Idaho at the intended point of diversion and use.

'(c) That said application is based upon years of prior appropriation and use of said waters by the Plaintiff and his predecessors on the land within described.

'* * *'

The individuals who filed their protest with the State Reclamation Engineer were allowed to intervene as defendants in the district court. By their answer to appellant's petition, respondents admitted that appellant had filed his permit to appropriate the water; that such application had been approved and permit issued, and that the State Reclamation Engineer had later denied this proof and cancelled the permit. They denied all other allegations of the petition.

The trial court after hearing the cause found:

'IV

'* * * that the source or sources of water filed on by plaintiff under Permit No. 28192 was appropriated by predecessors of Vina Thompson and decreed to them under the following decrees of the Sixth Judicial Court of the County of Lemhi, State of Idaho, namely: J. B. Morrow, et al. plaintiffs vs. Joseph Wagoner et al, defendants, dated April 7, 1910; and John T. Bernard, plaintiff vs. S. F. Horn, et al, defendants, dated July 9, 1937.

'V.

'The Court further finds that there was no public water available for appropriation from the source or sources particularly described in plaintiff's permit No. 28192.'

The trial court's conclusions of law and judgment entered in favor of respondents, sustained the order of the State Reclamation Engineer. From the judgment so entered, appellant appealed.

At the trial of the action before district court, the parties having stipulated as to the ownership of the land of the respective parties, the court found that the only issues presented by the pleadings were: (1) whether the water sought to be appropriated was unappropriated by other parties; and (2) to determine the quantity so appropriated by appellant, if said water was subject to appropriation. This finding by the trial court was in accord with the following excerpt from the transcript:

'The Court: * * * The only point in issue is Mr. Cantlin's application and whether or not this water he has applied for is subject to appropriation and application to beneficial use in accordance with his application?

'Mr. McLaughlin: Yes. We feel that we are confined within the application itself, and the protestants are likewise confined to that issue.'

Appellant's specifications of error are considered here as being directed to the ultimate question whether the trial court erred in finding that there was no public water subject to appropriation, or erred in entering the conclusions of law and judgment based on this finding. It is fundamental that issues not raised in the trial court will not be considered by this court on appeal and the parties will be held to the theory upon which the cause was tried in the lower court. Robinson v. Spicer, 86 Idaho 138, 383 P.2d 844. See cases therein cited.

The record discloses that the area of Lemhi county involved in this litigation is traversed by several streams and ditches. Hardscrabble ditch, through which appellant planned to take the water he sought to appropriate, as constructed some sixty years ago to divert water from Spring Creek. The water rights of numerous owners and users out of Spring Creek were first adjudicated by an action filed in the District Court of Lemhi County, in the case of J. B. Morrow, et al., plaintiffs, v. Joseph Wagoner, et al., defendants, the decree being dated April 7, 1910. On February 17, 1926, a decree was entered by the same court in the case of Hamilton, et al., plaintiffs, vs. W. G. Swendsen, Commissioner of Reclamation, et al., defendants, pertaining to the waters of Spring Creek and adjudicating the water rights to the users of Hardscrabble Ditch, which decree was supplemental to the previous decree in Morrow v. Wagoner. On July 9, 1937, a further decree involving water rights in the area was entered in the District Court for Lemhi County, in the case of John T. Bernard, plaintiff, v. S. F. Horn, et al., defendants, by which decree, among other things it was adjudged:

'* * *

'That there is also excepted from the waters to be diverted into the Bernard Ditch, the waters of Mayrick Creek and its tributaries, which waters, and all of the waters of Mayrick Creek, are hereby decreed to the defendant and cross-complainant, Idaho Livestock Lands, Inc., provided that said defendant and cross-complainant is to construct at its own expense, the necessary flumes, ditches, underpasses, and conduits, across or under what is known as the Bernard Ditch, * * *;'

The exhibits admitted in evidence show that the Hardscrabble Ditch runs northerly from its point of diversion from Spring Creek. A short distance north of its point of diversion this ditch is joined by a stream flowing from the east. This stream from the east, unanimously designated by the witnesses as Mayrick Creek or Thomas Creek, consists of two branches. The northerly branch rises from Mayrick Springs which are situate to the east of an old abandoned ditch designated as the Bernard or Ostrum Ditch. The southerly branch rises from certain springs west of the Bernard Ditch and somewhat south and westerly of Mayrick Springs.

Mr. Thompson, one of the respondents, testified that he is the successor in interest of the Idaho Livestock Lands, Inc., mentioned in the case of Bernard v. S. F. Horn, wherein there was decreed to the Idaho Livestock Lands, Inc., all the waters of Mayrick Creek. Although that decree required that the users of that water construct necessary flumes, ditches, underpass and conduits across or under Bernard Ditch, Mr. Anderson, one of the appellant's witnesses testified that the Bernard Ditch was completely abandoned. The requirement of maintaining conduits over Bernard Ditch becomes nugatory, under the terms of the decree, when the need therefore disappeared.

The record discloses that all the waters flowing in Hardscrabble Ditch have been used by the respective water users therefrom, including appellant and respondents herein...

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    ...first appeal. It will not now be considered by this court, having been raised for the first time on the second appeal. Cantlin v. Carter, 88 Idaho 179, 397 P.2d 761; Robinson v. Spicer, 86 Idaho 138, 383 P.2d 844; Frost v. Mead, 86 Idaho 155, 383 P.2d 834; Cox v. Cox, 84 Idaho 513, 373 P.2d......
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