Cohn v. Sorenson

• Decision Date: 30 October 1923
• Parties: MYERS COHN, Respondent, v. HANS SORENSON, GEORGE ARMSTRONG and LEM TOLER, Appellants
• Court: Idaho Supreme Court

219 P. 1059

38 Idaho 37

MYERS COHN, Respondent, v. HANS SORENSON, GEORGE ARMSTRONG and LEM TOLER, Appellants

Supreme Court of Idaho

October 30, 1923

WATER RIGHTS - APPROPRIATION INITIATED ON INDIAN RESERVATION - PRIORITIES-FINDINGS.

1. Where a settler has entered upon an Indian reservation under a valid claim of right of possession, and has initiated an appropriation of water by the diversion thereof upon a tract of land in the reservation, and has put such water to a beneficial use during the entire period of his occupancy and finally acquires the fee simple title to the land, his right to the use of the water dates from the time when he in good faith diverted and applied it to a beneficial use.

2. Held, that the trial court erred in not making a finding establishing the prior right of the appellants to the use of the excess waters of Gordon or Garden Creek.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.

Action to enjoin diversion of irrigation water. Judgment for plaintiff. Modified.

Decree affirmed. No costs awarded.

Budge &amp Merrill, for Appellants.

The decision of the court must be given in writing and filed with the clerk within twenty days after the case is submitted for decision. (C. S., sec. 6866; Idaho Comstock Co. v Lundstrom, 9 Idaho 257, 76 P. 762; McGary v Steele, 20 Idaho 753, 119 P. 448.)

A decree adjudicating water rights cannot fix a date of priority earlier than the opening of the Indian Reservation. (1 Fort Bridger Treaties, Indian Affairs & Treaties, pp. 199, 292, 315, 704; Kenney on Irrigation, secs. 405, 415; Avery v. Johnson, 59 Wash. 332, 109 P. 1028; Stofferan v. Okanogan Co., 76 Wash. 265, 136 P. 484.)

McDougall, McDougall & McDougall, for Respondent.

C. S., sec. 6866, is not mandatory but directory. (McGary v. Steele, 20 Idaho 753, 119 P. 448; Idaho Comstock Co. v. Lundstrom, 9 Idaho 257, 76 P. 762.)

Title to water rights cannot be obtained by permissive use and occupation. (Davis v. Devanney, 7 Idaho 742, 65 P. 500.)

Where a settler on such lands appropriates water for the reclamation thereof and diverts such water to and upon such lands prior to filing or entry on the same, his water rights after entry date from the actual appropriation. (Hall v. Blackman, 8 Idaho 272, 68 P. 19; Brown v. Newell, 12 Idaho 166, 85 P. 385; Bennett v. Nouris, 22 Idaho 249, 125 P. 1038; Joyce v. Rubin, 23 Idaho 296, 130 P. 793.)

An appropriator cannot be defeated because he did not use the water on lands to which he had a title. (Mahoney v. Neiswanger, 6 Idaho 750, 59 P. 561.)

A valid water right cannot be initiated by using another's ditch against his will, or by any other trespass. (Rabido v. Furey, 33 Idaho 56, 190 P. 73.)

The title to the land upon which water is to be used is not a question that can be raised in this case. The ownership of the land is immaterial. The question is, was the water diverted from the stream and put to a beneficial use. ( Sarret v. Hunter, 32 Idaho 543, 185 P. 1072.)

The cross-complaint does not state a cause of action, for it does not state that the waters of Garden Creek had been applied to beneficial use by either of the parties, or that any of the parties are in a position to apply water to beneficial use, or the amount of water necessary to be applied. (Willis v. Willis, 33 Idaho 353, 194 P. 470; Ramsey v. District Court, 33 Idaho 296, 193 P. 733.)

EDGINGTON, District Judge. McCarthy, Dunn, William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

EDGINGTON, District Judge.

--This is an action instituted by the plaintiff and respondent in the year 1919 for the purpose of enjoining the defendants and appellants from diverting the water of Gordon, also known as Garden Creek, Bannock county, Idaho.

For the purpose of this opinion, and in order to cover an assignment of error, a summary of the entire proceedings will be incorporated herein.

The complaint was filed August 14, 1919, and answer and cross-complaint were filed January 23, 1920. The presentation of the case was commenced June 15, 1920, and at the conclusion of the hearing the case was taken under advisement by the court, and on July 27, 1920, the court issued a memorandum decision relative thereto. Approximately eleven months after the court's memorandum decision was filed, the defendants, by motion, objected to the making and filing of findings and decree upon the ground that the twenty-day period within which the court should make the said findings, as provided by C. S., sec. 6866, had expired, and moved the court to reopen the case and permit the re-submission of evidence. The latter motion the court took under advisement, and later denied, and on October 12, 1921, the court signed findings of fact, conclusions of law and decree permanently enjoining the defendants.

This appeal is prosecuted from the judgment.

The appellants set forth several alleged errors, the first being that "the court erred in entering findings of fact and conclusions of law and decree after appellants had filed an objection and had moved to reopen the case," and the second specification challenges the legal propriety of the court in denying the appellants' motion to reopen the case.

It is possibly true that the delay between the time of the announcement of the court's decision and the time of the filing of the findings of fact, conclusions of law and decree was somewhat extended. It is not, however, apparent that the appellants suffered any loss or interference with their substantial rights by reason thereof, unless it can be said that they were deprived of the use of the excess waters of Gordon or Garden Creek over and above the amount decreed to the plaintiff and respondent, which excess waters, as we will discuss later on, should have been decreed to the appellants. To reverse the decision at this time, and upon that ground, would serve no useful purpose, as there is no showing made that any newly discovered evidence material to the appellants' case would be adduced, which would fairly indicate upon a new trial a decree in their favor.

It appears from the transcript that the respondent, and his partner, in the early '70's were engaged in the cattle business and, while grazing their cattle in and around the creek in question and the land contiguous thereto, entered a tract of land upon which wild hay was grown. The creek and land involved in this action were at that time embraced within what is commonly known as the Fort Hall Indian reservation. It further appears that the respondent and his partner immediately made arrangements with the Indian agent at Fort Hall whereby they received permission to cut the hay upon the said land. The record further shows that for many years thereafter they did cut the hay upon the said land, paying therefor a valuable consideration. This plan of leasing continued in effect for several years; that during the year 1876 or thereabouts the respondent constructed a ditch from the said Gordon or Garden Creek and diverted all the waters of the said stream into and upon the said meadow land embraced within the said Indian reservation. The partner of the respondent retired from the firm about 1886 and the respondent purchased from the retiring partner his interests in and to the partnership property.

The record sufficiently establishes the fact that the respondent continued in possession of the same lands under the arrangements hereinbefore mentioned and used the waters of the said creek continuously upon the said lands for beneficial purposes. The record is silent as to any dispute arising questioning the right of the respondent to the use of the said water until the year 1919, at which time one of the appellants went into and upon the ditch so constructed by the respondent and his associates, and cut the same, built dams in the stream and diverted the waters of the said creek to lands belonging to, or occupied by, the appellants. This act prompted the present controversy.

In 1895 the lands occupied by the appellants were placed beyond the jurisdiction of the Fort Hall Indian reservation, that is they were excluded therefrom,...