Crockett v. Jones

• Citation: 277 P. 550,47 Idaho 497
• Decision Date: 19 April 1929
• Docket Number: 5082
• Court: Idaho Supreme Court
• Parties: GEORGE CROCKETT, FRANK OGG, J. W. SMITH, B. H. HARTLEY, H. P'. LARSON, LUCY STRICKER, ED. DOMROSE, C. E. EDMINSTER, MANGUS LARSON, ROBERT BROSE, Jr., CHRISTIAN PETERSON, NEPHI LARSON, FRANK P. KING, P. W. GORDON and C. M. OLSON, Appellants, v. HENRY JONES and W. H. TURNER, Respondents

277 P. 550

47 Idaho 497

GEORGE CROCKETT, FRANK OGG, J. W. SMITH, B. H. HARTLEY, H. P'. LARSON, LUCY STRICKER, ED. DOMROSE, C. E. EDMINSTER, MANGUS LARSON, ROBERT BROSE, Jr., CHRISTIAN PETERSON, NEPHI LARSON, FRANK P. KING, P. W. GORDON and C. M. OLSON, Appellants, v. HENRY JONES and W. H. TURNER, Respondents

No. 5082

Supreme Court of Idaho

April 19, 1929

WATERS AND WATERCOURSES-CHANGE OF POINT OF DIVERSION-RIGHTS OF JUNIOR APPROPRIATORS.

1. In suit to restrain prior appropriator of water from changing point of diversion, holding on former appeal as to defendant's right to sell his water right and change point of diversion, was "law of case" on subsequent appeal.

2. Supreme court will not reverse judgment of trial court on disputed issue of fact, based on conflicting evidence.

3. Where there had been no changed conditions subsequent to plaintiffs' appropriations of water, in connection with physical condition of creek or amount of water therein above canal constructed across creek subsequent to the appropriations, prior appropriator had right, as against plaintiffs, to sell his water right and change point of diversion from point below to point above canal, though seepage from canal had increased flow below it.

4. Generally, junior appropriators have vested right to continuance of conditions existing on stream at and subsequent to time they made their appropriations and no proposed change in place of use or diversion by prior appropriator will be permitted when it will injuriously affect such established rights.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Action for permanent injunction, restraining defendants from changing point of diversion of water. Judgment for defendants. Affirmed.

Judgment affirmed, with costs to respondents.

Wolfe &amp Nielson, for Appellants.

The right of an appropriator to change the point of diversion or to transfer the water so appropriated to other lands is subject to the rights of other appropriators out of such stream. Such change cannot be made where it will adversely affect other rights. (Albrethsen v. Wood River Land Co., 40 Idaho 49, 231 P. 418; Bennett v Nourse, 22 Idaho 249, 125 P. 1038; Hall v. Blackman, 22 Idaho 556, 126 P. 1047; Strong v. Twin Falls Canal Co., 44 Idaho 427, 258 P. 173; Walker v. McGinness, 8 Idaho 540, 69 P. 1003.)

Walters, Parry & Thoman and John R. Keenan, for Respondents.

The sole question presented by appellants' assignments of error is an attempt to have this court consider conflicting evidence on a disputed issue of fact, weigh the respective testimony and make a different finding from that made by the trial court. This court has said times without number that it will not make such an investigation. (Coe v. Bennett, 46 Idaho 62, 266 P. 413; Rose v. Webb, 45 Idaho 577, 264 P. 868.)

ADAIR, District Judge. Budge, C. J., and Baker, D. J., concur. GIVENS, J., Wm. E. Lee, J., Dissenting.

OPINION

ADAIR, District Judge.

This action was instituted by appellants, who are appropriators of waters of Rock Creek, in Twin Falls county, to restrain respondents from changing the point of diversion and place of use of sixty inches of water to be diverted to and used upon land up the stream, some five miles distant from the land to which it had theretofore been applied and decreed. The cause was tried and judgment originally entered in favor of appellants. Upon appeal this court reversed the judgment, and the cause was remanded to the trial court with instructions to take testimony on certain definitely stated issues. (42 Idaho 652, 249 P. 483.) A new trial was had, and subsequently judgment was entered in the trial court decreeing to respondents the right to make the desired change in place of diversion and use, from which judgment the cause is again here on appeal.

After the water right in controversy and the rights of appellants were initiated and decreed, the Twin Falls High Line Canal was constructed, crossing Rock Creek a considerable distance up the course of the stream. Ever since this canal was first utilized as a conduit for water, there has been a considerable quantity of seepage or return flow water in the creek below the canal crossing, so that there is at present a large head of water in the stream bed at the point therein where the respondent Jones has his diversion works, such water being largely in excess of his needs. The farms of the appellants lie up the country and above the canal so that seepage water therefrom is not available for the irrigation thereof. Jones has conveyed his water right to the respondent Turner, who proposes to use the same on lands also situated up the creek and above the canal. Appellants contend that such change in place of use would deprive them of water for the irrigation of their lands, since the natural surface flow of the creek above the canal is inadequate to supply the irrigation necessities of appropriators having diversion works up the stream. They insist that since there is now ample water below their respective diversion points for the irrigation of the Jones ranch, the present flow being attributable to seepage or springs, Jones should be required to use such water as now flows in the stream, regardless of its source, and should not be permitted to transfer his decreed right to Turner for use on lands located above the point where such seepage water contributes to the flow of Rock Creek. Briefly summarized, that is the question which was before this court in the first instance, and appellants again attempt to present it for consideration and different determination on the present appeal.

In the prior opinion of this court it was held that this sixty-inch right awarded to Jones, with a priority of 1880, was a vested right in and to the waters of Rock Creek, and was such a property right that it could not be taken from him by the substitution of an uncertain seepage or backflow right without his consent, and that this was a right which Jones could sell. The cause was remanded with directions to take further testimony for the purpose of showing, if such were the fact, that prior to the advent of the High Line Canal the water decreed to Jones was supplied from springs arising along the course of the stream, above the point where the Jones water had been or was diverted at the time the subsequent appropriators made their appropriations of Rock Creek water, and below the point where it is now proposed to transfer the use of such water. The trial court was directed to make findings of fact thereon. In other words, this court held that if there were springs in the course of the creek, at the time the subsequent appropriators initiated their rights, which springs then supplied Jones with his decreed irrigation water, the proposed change in place of use would be injurious to appellants and would not be permitted. The effect of the decision, conversely stated, is that if such springs did not exist at such time and place, the transfer should be allowed, and the injunction then in force should be dissolved.

The issue passed upon in the original opinion will not again be considered by this court. It has frequently been held that where, upon an appeal of a cause, the law with reference to any question presented by such appeal is declared, it remains the law of that case upon any subsequent appeal. (Phy v. Edgerton, 44 Idaho 530, 258 P. 545, and cases therein cited.) See Gerber v. Nampa & Meridian Irr. District, 19 Idaho 765, 116 P. 104, wherein it is said:

"The case has been here before. . . . The facts are fully stated in that opinion and the law applicable to those facts is established conclusively for the purposes of this case, at least. The case was there remanded for a new trial, and the only question which arises now is whether or not the trial court followed the law announced in the prior decision of this court as applied to the evidence adduced on such new trial."

At the second trial of the instant case, held pursuant to the mandate of this court, several witnesses were examined. The testimony was conflicting on the issues defined in the opinion. The trial court found, in substance, that there were not, at the time of the Jones appropriation or thereafter, any springs arising within or adjacent to Rock Creek, between the points where Jones diverts his water and where it is proposed to divert the sixty inches of water involved herein for use upon the Turner land, which would or could render irrigation water available to the land of Jones, or supply any portion of his decreed right; that such condition existed at the time appellants made their appropriations from Rock Creek; that the only waters which arose in such sector of the stream, and which now arise therein, were and are solely seepage or back-flow waters which, prior to the construction of the canal and after the annual spring run-off has ceased, were and are uncertain, changeable, and negligible in amount, and did or do not furnish any adequate or definite water supply to Jones, nor enough water to supply his decreed right; and that in normal years, after the spring run-off, there were no springs supplying any irrigation water whatsoever to the lands of Jones.

While the evidence adduced was conflicting, it amply supports such findings. Judgment was entered in accordance therewith. The only issue presented by this appeal, therefore, is the correctness of these findings of fact. It is a rule in this jurisdiction, too well settled to permit of the citation of authority, that this court will not reverse the judgment of a trial court on a disputed issue of fact, based upon conflicting evidence.

It is now urged that the prior opinions in this case are susceptible of different...