Crockett v. Jones

• Decision Date: 26 June 1926
• Citation: 42 Idaho 652,249 P. 483
• Parties: GEORGE CROCKETT, MARY Y. NORTON, FRANK OGG, J. W. SMITH, B. H. HARTLEY, T. M. ATKINS, H. P. LARSEN, LUCY STRICKER, ED DOMROSE, C. E. EDMINSTER, MAGNUS LARSEN, ROBERT BROSE, Jr., CHRISTIAN PETERSON, NEPHI LARSEN, FRANK P. KING, D. P. ALBEE, P. W. GORDON, C. M. OLESEN, and UTAH CONSTRUCTION COMPANY, a Corporation, Respondents, v. HENRY JONES and W. H. TURNER, Appellants
• Court: Idaho Supreme Court

249 P. 483

42 Idaho 652

GEORGE CROCKETT, MARY Y. NORTON, FRANK OGG, J. W. SMITH, B. H. HARTLEY, T. M. ATKINS, H. P. LARSEN, LUCY STRICKER, ED DOMROSE, C. E. EDMINSTER, MAGNUS LARSEN, ROBERT BROSE, Jr., CHRISTIAN PETERSON, NEPHI LARSEN, FRANK P. KING, D. P. ALBEE, P. W. GORDON, C. M. OLESEN, and UTAH CONSTRUCTION COMPANY, a Corporation, Respondents, v. HENRY JONES and W. H. TURNER, Appellants

Supreme Court of Idaho

June 26, 1926

WATERS AND WATER RIGHTS-APPEAL FROM COMMISSIONER OF RECLAMATION-CHANGE OF POINT OF DIVERSION-REMEDIES OF AGGRIEVED PARTY.

1. Remedy of appeal to district court provided by C. S., sec 5582, from action of commissioner of reclamation granting permit for change of point of diversion of waters, is not exclusive, but cumulative, he being administrative officer without judicial power, and instead thereof aggrieved party may bring original action in such court for determining question involved in proceeding before commissioner.

2. Appropriator of water may not change point of diversion under C. S., sec. 5563, to point higher up stream, if water supplied him arose between the two points, and such condition existed at time of subsequent appropriations, and the change will injure the subsequent appropriators.

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

Action for permanent injunction restraining defendants from changing point of diversion of water. Judgment for plaintiffs. Reversed and remanded, with instructions.

Reversed and remanded with instructions.

Walters & Parry and J. R. Keenan, for Appellants.

Findings of fact not supported by evidence will not support a judgment based thereon. (Carson v. Thews, 2 Idaho 176, 9 P. 605.)

A subsequent appropriator has a vested right as against his senior to insist upon a continuance of the conditions that existed at the time he made his appropriation. (Bennett v. Nourse, 22 Idaho 249, 125 P. 1038; Last Chance Min. Co. v. Bunker Hill & Sullivan M. & C. Co., 49 F. 430; Handy Ditch Co. v. Louden Irr. Canal Co., 27 Colo. 515, 62 P. 847; Vogel v. Minnesota Canal & Reservoir Co., 47 Colo. 534, 107 P. 1108; Groo v. Sights, 22 Wyo. 19, 134 P. 269.)

Use of water by upper junior appropriators is presumed to lessen amount available to lower senior appropriator. (Moe v. Harger, 10 Idaho 302, 77 P. 645; Jackson v. Cowan, 33 Idaho 525, 196 P. 216.)

Department of reclamation must determine whether or not other water users from same source will be injured by point of diversion. (C. S., sec. 5582.)

Right of appeal from officer exercising judicial discretion is measured by the statute granting right of appeal. ( Pierson v. State Board, 14 Idaho 159, 93 P. 775.)

Party aggrieved by action of department of reclamation must exercise the right conferred by statute within the time therein limited. (Speer v. Stephenson, 16 Idaho 707, 102 P. 365.)

Wolfe & Wilkins, for Respondents.

The question here involved is very clearly covered in Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073.

No change of the point of diversion can be made to the injury of other appropriators. (Hard v. Boise Irr. & Land Co., 9 Idaho 589--596, 76 P. 331; Bennett v. Nourse, 22 Idaho 249, 125 P. 1038; Hall v. Blackman, 22 Idaho 556, 126 P. 1047.)

BUDGE, J., WM. E. LEE, C. J. William A. Lee, C. J., WM. E. Lee, Givens and Taylor, JJ., concur.

OPINION

BUDGE, J.

The statement of facts in appellants' brief is not controverted, and is as follows:

This is an action brought by respondents to restrain the appellants from changing the point of diversion and use of 60 inches of water of Rock Creek, a stream arising in the southern part of Twin Falls county and emptying into the Snake River. The cause was tried to the court and judgment rendered in favor of the respondents, and an injunction issued as prayed for by them. From the judgment this appeal is taken.

The amended complaint alleges that the respondents are the owners of certain lands with water rights from Rock Creek, under various court decrees; that these lands are arid in character and require irrigation for profitable cultivation, and have no source of water supply other than from Rock Creek; that the department of reclamation has issued a permit authorizing the transfer by appellants of 60 inches of Rock Creek water from the S. 1/2 of the NW. 1/4 and SW. 1/4 of the NE. 1/4 of Sec. 20, Tp. 11 S., R. 19 E. B. M., to the W. 1/2 of the SE. 1/4 and SW. 1/4 of Sec. 31, Tp. 11 S., R. 19 E. B. M.; and that the appellants threaten to make such transfer. Respondents further allege that their vested rights to the use of the water of Rock Creek will be injured by the transfer in that the present point of diversion of said 60 inches is below all the lands of respondents, and is made up of the back flow of the waters after they have been diverted and used by respondents; that the new point of diversion and use is above the present point of diversion and most of the lands of respondents, and that the 60 inches of water will have to be supplied out of the waters theretofore used by some of the respondents.

Appellants' answer denies all of the foregoing allegations of the amended complaint with the exception of the proposed transfer; alleges the issuance on August 19, 1921, by the department of reclamation of the permit for the proposed transfer; that there has been no appeal from such action of the department; that the new diversion point is five miles above the old one, and will save transmission losses caused by the necessity of conducting the water down five miles of stream channel to the original diversion point and will thus benefit respondents by making more water available to them.

The water rights involved in this action were acquired prior to the construction of the Twin Falls irrigation system canals, and the physical conditions are somewhat complicated by the fact that the high-line canal of that system circles around and through the lands of the respondents, crosses Rock Creek channel, is of earth construction for the most part, and has supplied considerable ground water not existing before its construction which has augmented the flow of water some distance below the point where the canal crosses Rock Creek.

Appellants make nine assignments of error. If we are correct in the conclusion reached, but two of the assignments need be considered. We shall first dispose of assignment of error No. 9, predicated upon the action of the court in refusing to hold as a matter of law that the respondents, not having appealed from the action of the department of reclamation in issuing a permit for the change of point of diversion within the time allowed by C. S., sec. 5582, were precluded from bringing this action.

A hearing was had before the commissioner of reclamation upon proper notice and application made by appellants to change the point of diversion, and the application was granted. No appeal was taken from the action of the department of reclamation in issuing the permit as provided for in C. S., sec. 5582, and appellants seek to make the point that, since the statute provides for a review of the holding of the commissioner of reclamation by appeal to the district court, the remedy so provided is exclusive. With this contention we are not in accord. We are of the opinion that the remedy so provided is cumulative; that the commissioner of reclamation is but an administrative officer, without judicial powers, and any party aggrieved by the decision of such commissioner may either appeal to the district court, as provided in C. S., sec. 5582, or commence an original action in said court for the determination of the question involved in the proceeding before the commissioner of reclamation. ( Speer v. Stephenson, 16 Idaho 707, 717, 719, 102 P. 365.)

The next question involved is whether or not the change in the point of diversion or place of use injured other appropriators. C. S., sec. 5563, provides: "The person entitled to the use of water may change the place of diversion, if others are not injured by such change." See, also, Hard v. Boise City Irr. Co., 9 Idaho 589, 76 P. 331, 65 L. R. A. 407; Bennett v. Nourse, 22 Idaho 249, 125 P. 1038; Hall v. Blackman, 22 Idaho 539, 126 P. 1045; Basinger v. Taylor, 30 Idaho 289, 164 P. 522.

From the record it appears that appellant Jones was decreed as of date April 20, 1880, a prior right of 60 inches of the waters of Rock Creek; that for years prior to the building of the Twin Falls system high-line canal through the lands of the respondents and subsequent thereto the 60 inches of water awarded to Jones as of the date of his priority was carried...