Crow v. Carlson

• Decision Date: 31 October 1984
• Docket Number: No. 14946,No. 1,1,14946
• Parties: Steven M. CROW and Cynthia Crow, husband and wife, Plaintiffs-Respondents, v. Ronald CARLSON, Watermaster of Water Districtof the State of Idaho, Defendant-Respondent, and Ray Gordon and Mary Jean Gordon, husband and wife, and any other unknown parties who claim any interest in water rights which would be adverse to a grant of 120 inches of Fox Creek with a priority date of 1890 for use in the SW 1/4 of Section 27, Township 4 North, Range 45 East, Boise Meridian, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 916

690 P.2d 916

107 Idaho 461

Steven M. CROW and Cynthia Crow, husband and wife, Plaintiffs-Respondents, v. Ronald CARLSON, Watermaster of Water District No. 1 of the State of Idaho, Defendant-Respondent, and Ray Gordon and Mary Jean Gordon, husband and wife, and any other unknown parties who claim any interest in water rights which would be adverse to a grant of 120 inches of Fox Creek with a priority date of 1890 for use in the SW 1/4 of Section 27, Township 4 North, Range 45 East, Boise Meridian, Defendants-Appellants.

No. 14946.

Supreme Court of Idaho.

Oct. 31, 1984.

Ray W. Rigby, Rexburg, for appellants.

Lynn Hossner, St. Anthony, for plaintiffs-respondents.

Jim Jones, Atty. Gen., and Lynn E. Thomas, Sol. Gen., State of Idaho, Boise, for defendants-respondents.

SHEPARD, Justice.

This is an appeal from a judgment quieting title to water rights in the plaintiffs-respondents Crow. The dispute involves certain water rights in Fox Creek north of Victor, Idaho, in the vicinity of Rexburg. In 1910, 120 miner's inches of the waters of Fox Creek were decreed to one Michael Byrne, with a priority date of 1890. That water was decreed as appurtenant to 240 acres of land, 160 of which were in Section 27 and are presently owned by the Crows, and 80 acres of which were in Section 26 and are presently owned by defendants-appellants Gordon. Both parcels lie in Township 4 North, Range 45 East, Boise Meridian. The trial court awarded the full 120 inches of water to the Crows and denied the Gordons' claim to any portion of the water. We reverse and remand.

The 1910 decree resulted from the case of Rexburg Irrigation Co., et al. v. Teton Irrigation Co., et al., wherein the district court of Freemont County adjudicated the rights of all persons taking water from the upper Snake River and its tributaries. That portion of the decree dealing with Michael Byrne awarded 120 inches of water with a priority date of 1890, for use on 240 acres of Byrne's property described as follows:

SW 1/4 of Sec. 27, S. 1/2 of SW 1/4 of Sec. 26, T. 4 N., R. 45 E., B.M., containing 240 acres.

The Crows sought to quiet title to the entire 120 inches of water, asserting that they are the successors in title of Byrne to the 160 acres in Section 27; that Byrne never owned the 80 acres in Section 26; that in any case, Byrne never used any of the 120 inches of water on the 80 acres in Section 26; and that therefore the Gordons have no right to any of the decreed water.

Fox Creek is a tributary of the Teton River, which in turn is a tributary of the Snake River. Fox Creek has in most years an adequate supply of water for the irrigation needs of the farmers in that area. Fox Creek Irrigation Company was formed after the 1910 Byrne decree and is a cooperative canal system operated by the farmers who use the Fox Creek water. Traditionally, in those years when the water was low in Fox Creek, the irrigation company, in conjunction with the state and local watermasters, arranged an equitable distribution of the water, which arrangement appears to have been satisfactory to everyone. Although the owners of the earlier decreed water have priority, there have been only a few times when they have had to assert the priority of their decrees in order to have sufficient water to irrigate. For example, the evidence indicated that in 1942, one Riggan, the then owner of the 160 acres in Section 27, asserted his earlier priority water rights. At that time the then owner of the 80 acres in Section 26 lacked sufficient water for irrigation and special concessions were then made to obtain water for that Section 26 property. In 1957, Gordon was farming his own property in Section 26, and also the Crow property in Section 27 by way of a leasehold, and at that time the earlier priority waters were asserted by Gordon. In 1978, Robert Bean, as the lessee of the Section 27 Crow property, and Gordon, as owner of the Section 26 property, both asserted a right to the early priority decreed water. There were not then 120 inches of water in Fox Creek, and therefore the watermaster split the water proportionately between the Crow Section 27 property and the Gordon Section 26 property, according to the percentage each property represented of the total property described in the Byrne decree.

Further evidence at trial may be summarized as follows. Robert Bean is the lessor of the Crow Section 27 property and the grandson of Riggan, who bought the Section 27 property from Michael Byrne. Riggan farmed the property until 1945, and Bean grew up helping farm that property. Bean indicated that no one ever actually measured the water going to the Section 27 property, since it had the oldest decree, and no one challenged the taking of the water. Bean stated that when Gordon called for water in 1978, there was plenty, and that he, Gordon, then got twice the amount Gordon now claims to be his under the 1910 decree. To Bean's knowledge, neither his grandfather nor Byrne ever farmed or owned the Gordon property. Kay, an officer of the Fox Creek Irrigation Company, indicated that the old Byrne decree was never called, and that the company seldom filled the old decrees as such, since people just cooperated. Moulton, a longtime resident of the area, indicated that his uncle owned the Section 27 property, that his uncle never abandoned the 120 inches of water, and that Gordon never demanded any of it. Stone, another resident of the area, indicated that Riggan asserted the water priority right in 1941 or 1942, but that Riggan did allow some water to go to Gordon's property in that year. Wilson, the local watermaster, testified that in 1963 or 1965, he began splitting the water, sending 40 inches to Gordon and 80 inches to Crow, under his interpretation of the 1910 Rexburg decree. Plaintiff Crow testified that he has used the entire 120 inches of water on the Section 27 property since buying the land. Defendant Gordon testified that he owns the Section 26 property described in the Byrne decree, that he and his predecessors have always asserted and received their share of the 120 inches, although their right to early priority water never was questioned because the supply was usually sufficient to cover the needs of all concerned. The watermaster at the time of trial, O'Brien, testified that he was then delivering 40 inches of water to Gordon.

The trial court held that the 1910 Rexburg decree was res judicata as to all matters determined therein, and stated, "This court must assume that in 1890 Michael Byrne had some interest in property in Section 26." The court found that Byrne never sold or conveyed any water right which was appurtenant to land in Section 26. The court further found that, although the successive owners of the Section 27 land had always demanded the water allotted in the 1910 decree, they obtained their water through the canal company and "[s]ince they obtained their water from the canal the ownership of a decreed water right has been of no significance in an ordinary year." The court did not find any instance in which the Gordons were denied sufficient water to irrigate their property.

Idaho Const. art. 15, § 3 provides, in pertinent part, "The right to divert and appropriate the unappropriated waters of any natural stream to beneficial uses, shall never be denied, except that the state may regulate and limit the use thereof for power purposes. Priority of appropriations shall give the better right as between those using the water ...." See also, I.C. § 42-103, codifying the doctrine of prior appropriation; and I.C. § 42-106, providing that, as between appropriators, first in time is first in right. A water right is tantamount to a real property right, and is legally protected as such. Nettleton v. Higginson, 98 Idaho 87, 558 P.2d 1048 (1977); Neilson v. Parker, 19 Idaho 727, 115 P. 488 (1911); I.C. § 55-101.

In the instant case the trial court noted that under the law of prior appropriation, and pursuant to the 1910 Rexburg decree, "[t]he appropriator, named in this decree became entitled, as of a date fixed therein, to use water in the amount named from the stream named for irrigation of the property designated." That right carried priority over other appropriations which were perfected on later dates, but the right was junior to appropriations established prior to it. Jenkins v. State, Dept. of Water Resources, 103 Idaho 384, 647 P.2d 1256 (1982); Martiny v. Wells, 91 Idaho 215, 419 P.2d 470 (1966); Cottonwood Water & Light Co. v. St. Michael's Monastery, 29 Idaho 761, 162 P. 242 (1916).

The 1910 Rexburg decree is conclusive proof of diversion of the water, and of application of the water to beneficial use, i.e., the decree is res judicata as to the water rights at issue herein. Morgan v. Udy, 58 Idaho 670, 79 P.2d 295 (1938); Masterson v. Pacific Livestock Co., 144 Or. 396, 24 P.2d 1046 (1933); O'Brien v. King, 41 Colo. 487, 92 P. 945 (1907). Our holding of the presumption of accuracy of the decree is in keeping with the judicial policy of deterring the reopening of judgments long after cases are decided and the files are closed. See Water Supply & Storage Co. v. Larimer & Weld Irrigation Co., et al., 24 Colo. 322, 51 P. 496 (1897). Our holding is also consistent with the ruling of the trial judge, in which he stated that a decree affixing water rights and establishing priorities is binding on all parties, and that such decree fixes the dates of priority and the land to which the water is appropriated.

The trial judge found that the appropriator of a water right could use it on the ground for which it was appropriated or on other grounds, and that a water right is essentially a personal right which is not necessarily transferred by a conveyance of the property to which the right appertains. We disagree. I.C. § 42-220 provides that "all rights to water confirmed under the provisions of this chapter, or by any decree of court, shall become appurtenant to,...