Clark v. Hansen

• Decision Date: 29 April 1922
• Citation: 206 P. 808,35 Idaho 449
• Parties: ELIZABETH S. CLARK et al., Respondents, v. C. V. HANSEN, Appellant
• Court: Idaho Supreme Court

206 P. 808

35 Idaho 449

ELIZABETH S. CLARK et al., Respondents, v. C. V. HANSEN, Appellant

Supreme Court of Idaho

April 29, 1922

WATER AND WATER RIGHTS-PERMITS-CANCELATION OF-DIVERSION OF WATER.

1. Where the holders of subsequent permits instituted proceedings before the state engineer for the cancelation of a prior permit, on the ground that one-fifth of the work of construction had not been completed within one-half of the period of time allowed for the completion of the entire work and upon the refusal of the state engineer to cancel the permit, brought an action in the district court, within the time allowed by law, for the cancelation of the same on the same grounds, and the evidence is sufficient to justify the trial court in finding that the work of construction had not been done within the time limited by the permit and by the statute, the contestants are entitled to a judgment canceling the prior permit.

2. Where a permit is issued for the enlargement or extension of existing works, the person to whom such permit is granted must complete one-fifth of such extension or enlargement within one-half of the time granted for the completion of the work and cannot claim credit for the construction already done at the time the permit was issued.

3. Persons diverting water from a stream for the irrigation of arid lands must construct their ditches in such manner that there will be the least possible waste of water therefrom. In offering evidence as to the duty of water, the inquiry is properly directed to the amount of water necessary to be diverted from the stream in order to properly irrigate the land, and the question of the reasonableness or unreasonableness of the loss from the ditch through seepage and evaporation is a proper subject for inquiry.

APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. Charles P. McCarthy, Presiding Judge.

Action for adjudication of water rights. Order denying motion for new trial conditionally reversed.

Cause remanded, with directions. No costs awarded.

J. M Stevens, Hawley & Hawley and H. E. Ray, for Appellant.

Having acquired this water by appropriation and purchase, it could be lost only by abandonment, and in this case abandonment has neither been pleaded nor has there been one word of testimony upon the subject of abandonment of the rights by appropriation and purchase. Abandonment is an affirmative action and must be pleaded and proven. (Utt v Frey, 106 Cal. 392, 39 P. 807.)

"Where the appropriator continues in the use of his rights without any unreasonable voluntary cessation an abandonment will not be proven against him." (Nichols v. McIntosh, 19 Colo. 22, 34 P. 278.)

"There must be a manifest intention on his part to abandon his right, this intention to be determined from his declarations and acts in relation thereto." (Hindman v Rizor, 21 Ore. 112, 27 P. 13; Parsons v. Fort Morgan Res. & Irr. Co., 56 Colo. 146, 136 P. 1024; Long on Irrigation, 2d ed., p. 336, and cases there cited.)

"Mere nonuser is not in itself abandonment." (Ada County Farmers' Irr. Co. v. Farmers' Canal Co., 5 Idaho 793, 51 P. 990, 40 L. R. A. 485; Long on Irrigation, 2d ed., 336, and cases there cited.)

"The intention to abandon and nonuser must concur to work a forfeiture." (Edgemont Improvement Co. v. N. S. Tubbs Sheep Co., 22 S.D. 142, 115 N.W. 1130.)

Holden & Holden, for Respondents.

Where an action is tried to the court without a jury and the evidence is conflicting, but there is substantial evidence in support of the findings of the court, such findings will not be disturbed by the appellate court on appeal. (Western Moline Plow Co. v. Caldwell, 18 Idaho 463, 110 P. 533; Hemphill v. Moy, 31 Idaho 66, 169 P. 288; Salisbury v. Spofford, 22 1da. 393, 126 P. 400; Brinton v. Steele, 23 Idaho 615, 131 P. 662.)

The findings of the court on questions of fact will not be disturbed where there is some competent evidence to support them. (Wolf v. Eagleson, 29 Idaho 177, 157 P. 1122; Brown v. Grubb, 23 Idaho 537, 130 P. 1073.)

The granting by the state engineer of a permit for the right to use the waters of a stream, in and of itself, secures to the applicant no right to the use of such water, unless there be a substantial compliance with every provision of the statute affecting the issuance of such permit and a fulfilment of the conditions of the permit. (Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073.)

It is the policy of the laws of this state to require the highest and greatest possible duty from the waters of the state in the interest of agriculture and other useful and beneficial purposes. (Farmers' Co-operative Ditch Co. v. Riverside Irr. Dist., 16 Idaho 525, 102 P. 481.)

RICE, C. J. Dunn, J., and Reddoch, Dist. J., concur. McCarthy, J., took no part in the opinion.

OPINION

RICE, C. J.

This action was brought for the purpose of obtaining an adjudication as to the respective rights of appellant and respondents to the use of the waters of Cedar Creek, in Custer county.

Appellant sets out as a basis for his claim that he is the owner of 525 acres of agricultural lands, arid in character, and requiring the use of water for the irrigation thereof; that between the years 1889 and 1901, he and his predecessors in interest had appropriated, diverted and beneficially used in irrigation of his land water amounting to 7,025 inches, measured under a four-inch pressure, or 140.5 second-feet. Appellant further alleges that on May 31, 1906, the state engineer of the state of Idaho issued to him permit No. 2020, authorizing him to construct certain irrigation works and to divert thereby thirty second-feet of the waters of Cedar Creek for the irrigation of 1,485 acres of land described in said permit; that he has fully complied with the terms and conditions of the permit, so as to entitle him to divert and use thirty second-feet under said permit, with priority as of the date thereof.

Respondents claim under various permits issued to them by the state engineer at various dates subsequent to the date of appellant's permit No. 2020. They allege that certain of the respondents, prior to May 31, 1911, filed with the state engineer a petition for the cancelation of permit No. 2020, upon the ground that one-fifth of the work provided for in said permit was not done by November 30, 1908, as required by said permit, and also upon the ground that appellant had wholly abandoned his right under permit No. 2020; that upon the hearing the state engineer refused to cancel the permit and this action was begun within ninety days thereafter. Respondents seek by this action to obtain a judgment of the court canceling permit No. 2020, upon the same grounds presented to the state engineer.

The court found that appellant did not "construct or complete the irrigation works or ditch mentioned and described in said permit No. 2020, according to the terms or conditions, or provisions, of said permit, or according to or in compliance with or as required by the law of this state applicable to such permit, and that defendant did not acquire and has not acquired the right to use for any purpose any of the waters of said creek under or by virtue of said permit." The judgment decreed to appellant the right to the use of 4.1 second-feet of the waters of Cedar Creek, based upon actual diversion and application to a beneficial use, which right is prior in time and superior in right to any decreed to respondents. Respondents were adjudged to have the right to the use of the waters of Cedar Creek in accordance with their various permits. The remaining rights awarded to appellant were of a date subsequent to the rights decreed to respondents.

The appeal is from the order of the court denying a new trial.

Appellant makes thirteen specifications of error. Aside from those hereafter considered, they all relate to the sufficiency of the evidence to support the findings of the court. It is sufficient to say that in all matters referred to,...