DeRousse v. Higginson

• Decision Date: 17 January 1973
• Docket Number: No. 10720,10720
• Citation: 505 P.2d 321,95 Idaho 173
• Parties: C. V. DeROUSSE, Plaintiff-Respondent, v. R. Keith HIGGINSON, as State Reclamation Engineer and Daniel R. Musselman as Water Master for Water District 12-A Defendants-Appellants.
• Court: Idaho Supreme Court

Page 321

505 P.2d 321

95 Idaho 173

C. V. DeROUSSE, Plaintiff-Respondent, v. R. Keith HIGGINSON, as State Reclamation Engineer and Daniel R. Musselman as Water Master for Water District 12-A Defendants-Appellants.

No. 10720.

Supreme Court of Idaho.

Jan. 17, 1973.

W. Anthony Park, Atty. Gen., Phillip M. Barber, Asst. Atty. Gen., Boise, for defendants-appellants.

Barry L. Marcus, Marcus & Marcus, Boise, for plaintiff-respondent.

John A. Rosholt, Parry, Robertson, Daly & Larson, Twin Falls, amicus curiae.

BAKES, Justice.

This entire controversy revolves around a construction and interpretation of §§ 42-605 and 42-607, Idaho Code, as amended, which grant to the watermaster of a water district certain powers and duties in connection with the distribution of waters from public streams in his district. The factual background is undisputed as shown by the affidavits filed with the court in connection with the plaintiff-respondent's motion for summary judgment which was granted by the trial court. This appeal is taken by the defendants-appellants from that order granting the motion for summary judgment.

The plaintiff-respondent, C. V. DeRousse, claims a water right by constitutional appropriation under Section 3 of Article 15 of the Idaho Constitution in the waters of Thorne Creek. Water district 12-A encompasses Thorne Creek which is a tributary of Mores Creek which in turn is a tributary of the Boise River. There have been prior water decrees adjudicating water rights on these waters of which the primary one is commonly known as the 'Stewart Decree,' Farmers Cooperative Co. v. Riverside Irrigation District, et al., Seventh Judicial District, Canyon County, filed January 20, 1906. Neither party contends that the plaintiff is precluded from asserting his water right by reason of the decree as apparently neither the plaintiff nor his predecessors were made parties to the action.

In the summer of 1968 the defendants determined that there was a scarcity of water in the Boise River to the extent that it was insufficient to satisfy the rights of persons having adjudicated rights under the 'Stewart Decree' so that the defendants shut off plaintiff's diversion of water from Thorne Creek and gave him written notice to the effect that any interference with this action could lead to criminal prosecution. In taking such action, the defendants were acting under § 42-607, Idaho Code, as it then existed, to wit:

'Distribution of water.-It shall be the duty of said watermaster to distribute the waters of the public stream, streams or water supply, comprising his water district, among the several ditches taking water therefrom according to the prior rights of each respectively, in whole or in part, and to shut and fasten, or cause to be shut or fastened, under the direction of the department of reclamation, the headgates of the ditches heading from such stream, streams or water supply when in times of scarcity of water it is necessary so to do in order to supply the prior rights of others in such stream, or water supply: provided, that any person or corporation claiming the right to the use of the waters of the stream or water supply comprising a water district, but not owning or having the use of an adjudicated right therein, shall, for the purposes of distribution, during the scarcity of water, be held to have a right subsequent to the adjudicated rights in such stream or water supply, and the watermaster shall close all headgates of ditches having no adjudicated right if necessary to supply adjudicated rights in such stream or water supply, provided that any water right, the priority of which has been decreed, shall be deemed to be adjudicated within the meaning of this section.' (Emphasis added).

Based upon these facts the plaintiff DeRousse filed suit against the defendants alleging the basic facts including the interference with the claimed constitutional water right of plaintiff, prayed for a declaratory judgment interpreting § 42-607 and an injunction against the defendants from interfering with plaintiff's diversion of water from Thorne Creek. Thereafter the plaintiff filed a motion for summary judgment together with supporting affidavits.

While this first motion was pending, the legislature amended § 42-607 and § 42-605, Idaho Code, as set forth in Chapter 305 of the 1969 Session Laws. Section 42-607, Idaho Code, quoted above, was amended to read as follows:

'Distribution of water.-It shall be the duty of said watermaster to distribute the waters of the public stream, streams or water supply, comprising his water district, among the several ditches taking water therefrom according to the prior rights of each respectively, in whole or in part, and to shut and fasten, or cause to be shut and fastened, under the direction of the department of reclamation, the headgates of the ditches heading from such stream, streams or water supply, when in times of scarcity of water it is necessary so to do in order to supply the prior rights of others in such stream, or water supply SO LONG AS A DULY ELECTED WATERMASTER IS CHARGED WITH THE ADMINISTRATION OF THE WATERS WITHIN A WATER DISTRICT, NO WATER USER WITHIN SUCH DISTRICT CAN ADVERSELY POSSESS THE RIGHT OF ANY OTHER WATER USER.'

In addition, § 42-605 was amended in part to add the following definition:

'. . . for the purposes of this chapter, a 'right' shall mean any water right which has been adjudicated by the court or is represented by valid permit or license issued by the department of reclamation.'

As a result of the amendments concerning the powers of a watermaster, the plaintiff DeRousse amended his complaint alleging the new law and again praying for a declaratory judgment interpreting the statute, and for an injunction against the defendant from interfering with his claimed constitutional water right. Both parties acknowledge that § 42-607, Idaho Code, before the 1969 amendment instructed the watermaster to give adjudicated water rights a complete preference over unadjudicated water rights in times of water scarcity to the extent of closing all headgates of ditches of unadjudicated water rights if necessary to supply sufficient water for the adjudicated rights. See Big Wood Canal Co. v. Chapman, 45 Idaho 380, at 405, 263 P. 45 (1927).

The plaintiff now contends that as a result of the 1969 amendment this instruction to the watermaster was expressly stricken and withdrawn so that under the statute itself the watermaster has no jurisdiction or control over unadjudicated water rights claimed to have been appropriated in the constitutional method by diversion and appropriation to beneficial use. On the other hand the defendants contend that the 1969 amendment to §§ 42-607 and 42-605, Idaho Code, preserved the defendants' legal suthority to shut off plaintiff's diversion of water from Thorne Creek so long as his rights to the use of said waters are not represented by a court's decree or by a permit or license issued by the Idaho Department of Reclamation. In essence, the trial court held that the Idaho statutes as constituted after the 1969 amendment left the defendants without any jurisdiction or control over unadjudicated water rights within the district nor represented by a permit or license. By reason thereof the trial court entered a permanent injunction prohibiting the defendants from shutting off plaintiff's diversion of water under §§ 42-605 and 42-607, Idaho Code, as presently constituted.

The question before the court, therefore, is an interpretation of the 1969 amendment to the above quoted statutes. We first concur with the parties to the action that prior to the 1969 amendment, § 42-607, Idaho Code, purported to grant to the watermaster the right to shut off unadjudicated water rights within the district during the time of water scarcity and give preference to all adjudicated water rights on the stream. See Big Wood Canal Co. v. Chapman, supra. The relevant language purporting to grant this power was stricken and removed from this statute by the 1969 amendment.

It has long been held by this court that when a statute is amended by the legislature a presumption arises that a change in application of the statute was intended. Anderson v. Rayner, 60 Idaho 706, 713, 96 P.2d 244 (1939). 'When a statute is amended, it is presumed that the legislature intended it to have a meaning different than that accorded to it before the amendment.' Wellard v. Marcum, 82 Idaho 232, 239, 351 P.2d 482 (1960). See Employment Security Agency v. Joint Class 'A' School District No. 151, 88 Idaho 384, 391, 400 P.2d 377 (1965).

Therefore, inasmuch as substantial changes were made in §§ 42-607 and 42-605, Idaho Code, we must presume that the legislature intended for the statutes to have a different meaning from that accorded to them before the amendment. In making such a statutory interpretation or construction, it is a '. . . universal rule of statutory construction that a statute must be construed in the light of its intent and purpose.' Jorstad v. City of Lewiston, 93 Idaho 122, 125, 456 P.2d 766, 769 (1969).

'The primary function of the appellate court in construing a statute is to ascertain the legislative intent and give effect thereto. Knight v. Employment Security Agency, 88 Idaho 262, 398 P.2d 643 (1965); Messenger v. Burns, 86 Idaho 26, 382 P.2d 913 (1963); Lebrecht v. Union Indemnity Co., 53 Idaho 228, 22 P.2d 1066, 89 A.L.R. 640 (1933).' Idaho Public Utilities Commission v. VI Oil Co., 90 Idaho 415, 420, 412 P.2d 581, 583 (1966).

Furthermore, if possible, it is incumbent upon a court to give a statute an interpretation which will not in effect unllify it. Filer Mutual Telephone Co. v. Idaho State Tax Commission, 76 Idaho 256, 261, 281 P.2d 478 (1955).

'We adhere to the cardinal rules of construction which require that courts should not nullify a statute or deprive a law of potency and force unless such course is absolutely necessary; meaning and effect should...