Cantlin v. Carter, 9395
Court | United States State Supreme Court of Idaho |
Citation | 88 Idaho 179,397 P.2d 761 |
Docket Number | No. 9395,9395 |
Parties | Everett 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. |
Decision Date | 22 December 1964 |
Page 761
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.
[88 Idaho 180]
Page 762
Robert F. McLaughlin, Mountain Home, for appellant.Jones, Pomeroy & Jones, Pocatello, for respondents.
[88 Idaho 182] 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
Page 763
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.
[88 Idaho 183] '(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
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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: [88 Idaho 184] (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...
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Joyce Livestock Co. v. U.S., 32278.
...from Sand Point Water & Light Co. v. Panhandle Dev. Co., 11 Idaho 405, 413, 83 P. 347, 349 (1905)). As we stated in Cantlin v. Carter, 88 Idaho 179, 186, 397 P.2d 761, 765 (1964), "By actually diverting and applying water to a beneficial use, a legal appropriation is made." Likewise, in Fur......
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Shrives v. Talbot, 9922
...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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Gilbert v. Smith, 11949
...failure to remedy the cause of the wasting is evidence of an intent to relinquish any right in the water. Cf. Cantlin v. Carter, 88 Idaho 179, 187, 397 P.2d 761 (1964). Consequently, it is submitted that the diversion and use of the entire flow of Densmore and Birch Creeks by appellants and......
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A&B Irrigation Dist. v. Idaho Dep't of Water Res. & Gary Spackman (In re Petition for Delivery Call of A&B Irrigation Dist. for the Delivery of Ground Water & for the Creation of Area), s. 38403
...attempting to justify his diversion has the burden of providing that it will not injure prior appropriations." Cantlin v. Carter, 88 Idaho 179, 186, 397 P.2d 761, 765–66 (1964) (superseded by statute, I.C. § 42–103 (1971) ). Idaho law also provides that the burden of establishing waste is o......
-
Joyce Livestock Co. v. U.S., 32278.
...from Sand Point Water & Light Co. v. Panhandle Dev. Co., 11 Idaho 405, 413, 83 P. 347, 349 (1905)). As we stated in Cantlin v. Carter, 88 Idaho 179, 186, 397 P.2d 761, 765 (1964), "By actually diverting and applying water to a beneficial use, a legal appropriation is made." Likewise, in Fur......
-
Shrives v. Talbot, 9922
...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......
-
Gilbert v. Smith, 11949
...failure to remedy the cause of the wasting is evidence of an intent to relinquish any right in the water. Cf. Cantlin v. Carter, 88 Idaho 179, 187, 397 P.2d 761 (1964). Consequently, it is submitted that the diversion and use of the entire flow of Densmore and Birch Creeks by appellants and......
-
A&B Irrigation Dist. v. Idaho Dep't of Water Res. & Gary Spackman (In re Petition for Delivery Call of A&B Irrigation Dist. for the Delivery of Ground Water & for the Creation of Area), s. 38403
...attempting to justify his diversion has the burden of providing that it will not injure prior appropriations." Cantlin v. Carter, 88 Idaho 179, 186, 397 P.2d 761, 765–66 (1964) (superseded by statute, I.C. § 42–103 (1971) ). Idaho law also provides that the burden of establishing waste is o......