Cottonwood Water & Light Co., Ltd. v. St. Michael's Monastery

• Decision Date: 22 December 1916
• Citation: 29 Idaho 761,162 P. 242
• Court: Idaho Supreme Court
• Parties: THE COTTONWOOD WATER & LIGHT COMPANY, LTD., a Corporation, Appellant, v. ST. MICHAEL'S MONASTERY, a Corporation, Respondent

162 P. 242

29 Idaho 761

THE COTTONWOOD WATER & LIGHT COMPANY, LTD., a Corporation, Appellant, v. ST. MICHAEL'S MONASTERY, a Corporation, Respondent

Supreme Court of Idaho

December 22, 1916

WATER RIGHTS-FINDING OF FACTS-SUFFICIENCY OF EVIDENCE-CONCLUSIONS OF LAW-PRIORITY OF APPROPRIATION-MODIFICATION OF DECREE.

1. Held, that the finding of facts is fully supported by the evidence.

2. Where the court found as a fact that the grantor of the defendant was the prior appropriator and entitled to 10,000 gallons of water per day, it was error, as a conclusion of law, to give a part of such water to the plaintiff.

3. Under the provisions of sec. 3 of art. 15 of the constitution, priority of appropriation gives priority of right.

4. Held, under the evidence and law, that the defendant is entitled to divert from said springs 10,000 gallons of water per day.

[As to what constitutes appropriation of waters, see note in 60 Am.St. 799]

APPEAL from the District Court of the Second Judicial District, in and for the County of Idaho. Hon. Edgar C. Steele, Judge.

Judgment decreeing that plaintiff was entitled to a part of the water carried by the pipes of defendant during the months of July August, September and October. Reversed.

Cause remanded with instructions. Costs awarded to defendant.

W. N Scales, for Appellant.

"When a spring furnishes a stream of water that rises to the surface, the right of appropriation attaches." (Wiel Water Rights, 2d ed., p. 163.)

"A statutory provision that the person on whose lands spring water first rises shall have a prior right to it, if capable of being used upon his lands, does not apply to springs which form the fountain-heads of living watercourses." (Miller v. Wheeler, 54 Wash. 429, 103 P. 641, 23 L R. A., N. S., 1065.)

"First in time, first in right," should be considered the settled law here. (Drake v. Earhart, 2 Idaho 750, 23 P. 541; Nielson v. Parker, 19 Idaho 727, 115 P. 488; Handy Ditch Co. v. Louden Irrigating Canal Co., 27 Colo. 515, 62 P. 847.)

The defendant bases his use of the water on what he intends to do. In the case cited below the court says: "To anticipate what he might do in the future or to permit him to make a further application of the water to a beneficial use and make proof thereof, we think, under all of the circumstances in this case, would not be warranted." (Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073.)

J. F. Ailshie, Jas. De Haven and Jess B. Hawley, for Respondent.

It is shown by the evidence that there were no open springs and no water was flowing from any spring on the Rustemeyer place prior to Rustemeyer taking up the land and digging out and developing those springs. This was done about the year 1905. As these springs were dug out and developed to some extent, a diversion of the water was made by means of wooden troughs carrying the water for a distance of about seventy-five feet to the main watering-trough used by Rustemeyer for his livestock and general domestic purposes. This was just as perfect and complete an appropriation of the water as if he had filed notices with the state engineer and procured a permit. (Nielson v. Parker, 19 Idaho 727, 115 P. 488; Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 38, 147 P. 1073.)

One who actually prepares for and diverts the waters of a stream, even though it be the entire body of water, may keep his diversion and appropriation good although he does not use the entire volume of water for a number of years, providing he is using a part thereof and is intending and preparing to and can and will eventually use and apply the whole volume of water to a beneficial use. (Hall v. Blackman, 8 Idaho 272, 284, 68 P. 19; Conant v. Jones, 3 Idaho 606, 32 P. 250; Joyce v. Rubin, 23 Idaho 296, 130 P. 793; Brown v. Newell, 12 Idaho 166, 172, 85 P. 385; Bennett v. Nourse, 22 Idaho 249, 256, 125 P. 1038.)

SULLIVAN, C. J. BUDGE and MORGAN, JJ., concur.

OPINION

SULLIVAN, C. J.

This action was brought to determine the priority of the use of the waters of the Rustemeyer springs, which are tributary to what is known as the south fork of the Cottonwood creek, in Idaho county.

Upon the issues joined, and after the trial of the case, the court found as follows: "That the appropriation and diversion of the waters of the said springs by the said Rustemeyer, as hereinabove found, was prior to any and all other appropriations made by the plaintiff or anyone else from the waters of said springs or the stream to which they are tributary."

Upon that and other findings, judgment was entered in favor of the respondent. However, under the provisions of conclusion of law No. 6, the court found that during the months of July, August, September and October the defendant was required to allow the plaintiff the uninterrupted flow of water from said springs daily from 5 o'clock P. M. until 4 o'clock A. M., and that from 4 o'clock A. M. until 5 o'clock P. M. of each day during said period the defendant should have the unobstructed use of the waters of said springs. The plaintiff appealed from the first part of said decree, and the defendant appealed from that part of the decree allowing the plaintiff the use of said waters during the months of July, August, September and October. Hence we have an appeal by the plaintiff and a cross-appeal by the defendant.

At the outset we are met with a motion to strike the statement found in the transcript from the record, and also a motion to dismiss the appeal upon several grounds going to laches and negligence of the plaintiff in prosecuting its appeal. The court will overrule both of said motions without making further comment in regard to them.

Numerous errors are assigned, most of which go to the insufficiency of the evidence to support the findings of the court. The following facts appear from the record:

The plaintiff is a water corporation organized for the purpose of providing and supplying water to the inhabitants of the city of Cottonwood, Idaho county. The defendant is an eleemosynary corporation organized and existing for the chief purpose of conducting an educational institution and promoting religious teaching. In the year 1905, one Fred Rustemeyer entered 160 acres of land on which the springs involved are located. Thereafter, on the 14th of June, 1910, he sold and conveyed said land with the appurtenances to Reverend Father Berthold who received the title thereto in trust for the defendant corporation and thereafter conveyed the title to said corporation. On said tract of land there is situated one main spring and two or more smaller ones, where the water comes to the surface of the ground. In the year 1905 said Rustemeyer made an excavation in the ground at or near the main spring and constructed troughs and placed the same in the ground so as to divert the entire volume of water from said main spring, and thus carried the entire volume of water a distance of about 75 feet to a larger watering-trough near his residence, and used the water for domestic and other purposes. Said springs are tributary to what is known as the south fork of Cottonwood creek, and ordinarily the water from said springs would flow down the hillside and find its way into said creek, except in very dry seasons, when it would not reach the stream. The Reverend Father Berthold purchased said described lands for the special purpose of securing the water flowing from said springs for and on behalf of the defendant, and caused a ditch to be dug and pipes to be laid conducting the water from said springs down the canyon a distance of about one and one-half miles to the building and premises owned by the corporation defendant. The construction of said pipe-line was begun on September 5, 1910, and completed before December 25, 1910, and the water from said springs was diverted and carried through said pipes and used for the purpose of watering livestock and for domestic and irrigation purposes. Prior to September 9, 1910, the plaintiff corporation was supplying the town of Cottonwood and its inhabitants with water and charging rates therefor, and was maintaining a pump station in the town of Cottonwood for such purpose. Prior to said date the plaintiff purchased a tract of eleven acres of land lying across what is known as the south fork of the Cottonwood creek and a short distance from the property known as the monastery property, owned by defendant and through which property the defendant's pipe-line runs. On September 9, 1910, the plaintiff procured from the state engineer a permit to divert and appropriate one-fourth of one cubic foot per second of...