Crane Falls Power & Irrigation Co., Ltd. v. Snake River Irrigation Co., Ltd.
| Decision Date | 21 June 1913 |
| Court | Idaho Supreme Court |
| Parties | CRANE FALLS POWER & IRRIGATION CO., LTD., a Corporation, Appellant, v. SNAKE RIVER IRRIGATION COMPANY, LTD., a Corporation, Respondent |
[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]
Case affirmed and judgment of the trial court sustained. Costs awarded to respondent.
A rehearing was granted in this case and respective counsel made oral argument before this court on the rehearing. In the petition for rehearing it is contended that this court was misled as to the facts of the case by the "erroneous statements, misrepresentations and unwarranted implications" contained in respondent's brief in numerous particulars, but on the oral argument counsel for appellant did not point out wherein the court had been misled as to the facts, and we are fully satisfied that the facts as stated in the original opinion fairly represent the facts involved in this case, and that the court has not been misled in regard thereto.
It is next contended that the court failed to pass upon the rights of appellant under sec. 2339, Rev. Stats. of the U.S. (7 F. Stats. Ann. 1090, Comp. Stats. 1901, p. 1437), which involves the appellant's title to the rights of way for the construction of said ditches or canals. Said section is as follows:
"Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purpose, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage."
The question arises as to what right the appellant has secured under the provisions of said section to the right of way for the four segments of ditches referred to, when applied to the facts of this case. The record shows that none of said ditches have been completed and that it would require the expenditure of a large amount of money to complete said irrigation system. The ditch nearest the river is 50 feet or more above the level of the river and the highest one is over 200 feet above the level of the river. After said segments of ditches were constructed, the appellant quit all work thereon April 4, 1910, and had done no further construction work in order to complete the same at the time this action was tried. The facts are quite fully set forth in the original opinion. It does not appear from the record that the appellant company owned any water right or any rights to the use of water for the purpose of irrigating said lands; and it further appears that said appellant company was simply a construction company. It appears from the exhibits, 1 to 31, referred to in the original opinion, and entitled "Application and Agreement for the Purchase of Said Stock," that the Apple Cove Association was organized for the main purpose of securing the construction of an irrigation system and thereafter owning and operating the same. It is recited in said exhibits as follows:
"Whereas, the undersigned is the owner of the lands and premises hereinafter described, which are situated under and are susceptible of irrigation from said proposed canals, and by reason thereof, is desirous of securing the construction of said canals and the installation of such pumps and pumping plants and the furnishing of power for operating the same;
"Now, therefore, in consideration of the premises and for the purpose of inducing the said Power Company to undertake the construction of said canals," etc.
The object and purpose of the owners of said land was to procure the construction of such canals and works, and it was provided in the contract with the Apple Cove Association that the appellant company should take all of the capital stock of said Apple Cove Association as full payment for the construction of said canals. It is clear from the contract entered into for the construction of said canals and system and the applications referred to that the appellant company is nothing more nor less than a construction company, and that it had not by "priority of possession" rights to the use of water for the irrigation of said land, which had vested and accrued at the time said contract was entered into or at the time it quit work upon said ditches in April, 1910. Said sec. 2339, Rev. Stats. of the U.S. (7 F. Stats. Ann. 1090, Comp. Stats. 1901, p. 1437), clearly contemplates that one who seeks the benefit of the right of way for ditches over public lands must have some rights to the use of water which are recognized and acknowledged by the local customs, laws and decisions of the courts of the state wherein such system is being constructed, before it is entitled to the right of way for the construction of ditches or canals for the purposes specified in said section. Said section, being reduced to its clear meaning, might be read as follows: "Whenever rights to the use of water have vested and accrued, the possessors and owners of such vested rights shall be maintained and protected in the same, and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed." "For the purposes herein specified" unquestionably means for the purpose of maintaining and protecting the owners and possessors of water rights which have vested and accrued. Appellant is claiming title to a right of way, and the only right of way claimed is that for the ditches constituting a part of the irrigating system appellant contracted to build for the Apple Cove Association. The easement for a right of way is entirely dependent upon the use, and if there is no use for the ditches under the original purpose there can be no easement. The appellant has entirely failed to carry out its original purpose for which said ditches were built, and, in fact, cannot now carry out such purpose. It does not propose and does not offer to do so. The purpose for which said ditches were built has been accomplished by the work of the respondent company under its agreement with the settlers, and if such right of way was ever secured, it was by the Apple Cove Association, which was to own and hold and operate the ditches after they were built and the system completed for the benefit of the land owners. Part of the land over which said ditches extend never did revert to the United States government by relinquishment of filings or otherwise, and unless appellant can show its right of way across such tracts of land also, it has no continuous right of way, since continuity of the right of way is wholly broken up by the land of parties who never did relinquish their land to the government after said ditches were constructed. Said appellant corporation being a construction company merely, and having no water right vested and accrued, it does not come within the scope and meaning of said section 2339.
Under the laws of this state there are two methods of acquiring water rights: One is to follow the statutory procedure and file an application for water with the state engineer, in which case there is a vested right which dates its inception from the time of filing the application with the state engineer. The other is to divert unappropriated water and apply it to a beneficial use without making application to the state engineer, which right dates from the application of the water to a beneficial use. The statutory method is the exclusive method by which the right can relate back to the filing of the application with the state engineer. (See Nielson v. Parker, 19 Idaho 727, 115 P. 488.)
Said sec. 2339 was enacted by Congress to protect the appropriator and user of water. It is an act to protect rights to the use of water and not an act to protect contractors who construct ditches for an agreed compensation for those who desire to use the water. Under the main contract the Apple Cove...
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