City of Pocatello v. Bass

• Decision Date: 26 May 1908
• Citation: 15 Idaho 1,96 P. 120
• Parties: CITY OF POCATELLO, Respondent, v. GEORGE BASS, Jr., Appellant
• Court: Idaho Supreme Court

96 P. 120

15 Idaho 1

CITY OF POCATELLO, Respondent, v. GEORGE BASS, Jr., Appellant

Supreme Court of Idaho

May 26, 1908

APPROPRIATION OF WATER-CONFLICT OF EVIDENCE-FINDINGS OF FACT-POWERS OF CITIES TO PURCHASE LANDS FOR PARKS.

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

2. Held, under the evidence that the water in question was appropriated by Turner in 1902.

3. Held, that the defendant in this case is not in a position to attack the right of the city to purchase and hold the land in question, as he is not claiming any portion thereof.

(Syllabus by the court.)

APPEAL from the District Court of Fifth Judicial District for Bannock County. Hon. Alfred Budge, Judge.

Action to quiet title to a certain water right. Judgment for the plaintiff. Affirmed.

Judgment affirmed. Costs of this appeal awarded to respondent.

H. V A. Ferguson, for Appellants.

Where a public wrong results in special and peculiar damage to an individual, differing in kind and not merely in degree from that suffered by the public at large, he may maintain an action individually to protect his interests. (15 Ency. of Pl. & Pr. 473.)

The supreme court upon appeal may review the verdict, if excepted to, and the evidence supporting it. (Ainslie v. Idaho World Printing Co., 1 Idaho 641.)

The rule that a new trial is not to be granted where there was evidence on both sides is not applicable to a case where the weight of the testimony on one side was entirely disregarded by the jury, or was countervailed by evidence which, from its nature, ought to have little or no effect. (Johnson v Scribner, 6 Conn. 185.)

The sufficiency of a special finding, made by a judge sitting without a jury, to support the judgment, is open for review on appeal. (Betancourt v. Eberlin, 71 Ala. 461; Snell v. Kimmell, 8 Iowa 281.)

Gray &amp Boyd, for Respondent.

The decision of the court when sitting in the trial of a cause is of the same force and effect as the verdict of a jury in a jury trial, and where there is a substantial conflict in the testimony, it is the duty of the appellate court to affirm the decision. (Sabin v. Burke, 4 Idaho 28, 37 P. 352; Commercial Bank of Moscow v. Lieuallen, 5 Idaho 47, 46 P. 1020; Simpson v. Remington, 6 Idaho 681, 59 P. 360; Bonner v. Powell, 7 Idaho 104, 61 P. 138.)

The city having become seised and in possession of said land and water right, the appellant, who is neither a resident nor taxpayer, cannot call in question the power of the city to hold said property. That right can only be exercised by the state of Idaho. (Dillon on Mun. Corp., 4 ed., sec. 574.)

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

OPINION

SULLIVAN, J.

This action was brought by the city of Pocatello to restrain the defendant from using, interfering with or in any manner depriving the plaintiff of certain water from a certain spring, which spring is situated outside of the limits of the city, and is referred to in this litigation as the "South Spring"; and to adjudicate the ownership of said water and forever quiet the title of the city to the same.

The following facts appear from the record: In May, 1902, Theodore Turner was the mayor of the city of Pocatello, and in June of that year the United States, through the Interior Department, placed upon the market certain parts of the land known as the Fort Hall Indian Reservation, and the lands lying within a radius of five miles of the city of Pocatello were to be sold at public auction to the highest bidder for cash, at not less than $ 10 per acre. Certain of the public spirited citizens of Pocatello, it appears, concluded it would be a good idea to secure 200 acres of those lands lying just outside of the limits of the city, and turn the same into a public park as a place of recreation and enjoyment for the inhabitants of the city. It appears for that purpose Theodore Turner, who was then mayor of that city, and one John W. Faris, a citizen, were selected by such citizens to purchase said lands for cash from the government, and did do so and obtained a patent from the United States for the same, and on May 27, 1903, conveyed such lands to the city. It appears that at the time said lands were purchased by Turner and Faris they had theretofore been occupied by an Indian and he had certain improvements thereon, consisting of a few acres of alfalfa and some cultivated ground. Those improvements were on the 120 acres of land purchased by said Turner from the government. It further appears from the record and evidence and the findings of the court that on July 22, 1902, said Turner located the water in question by filing his notice in the proper office, and a very few days afterward he personally assisted in repairing an old Indian ditch that had theretofore been used in diverting water from that spring, and diverted said water from said spring to and upon the lands he had so purchased from the government, and used the same at that time for the purpose of irrigating alfalfa, shade trees and potatoes growing thereon.

It appears that the defendant, Bass. who is appellant, settled upon 80 acres of land under the homestead laws of the United States, not far from the spring in question, and made his homestead filing therefor in September, 1904; that in August 1904, he applied to the state engineer for a permit to divert the waters of a certain spring, being the spring in question, and the said permit was granted, and that thereupon the defendant constructed his dams and ditches and diverted the water from said spring and used it in the irrigation of some of his land. It also appears from his testimony...