Drake v. Earhart

• Decision Date: 06 March 1890
• Parties: DRAKE ET AL. v. EARHART
• Court: Idaho Supreme Court

23 P. 541

2 Idaho 750

DRAKE ET AL. v. EARHART

Supreme Court of Idaho

March 6, 1890

PRIOR APPROPRIATION OF WATER-RIPARIAN RIGHTS-SALE OF WATER BY APPROPRIATOR.-Under the law of the territory and of Congress it has become the settled law that the prior appropriator of water has the better title thereto.

RIPARIAN RIGHTS.-A riparian proprietor whose claim to the use of water of a stream flowing through his land not based upon appropriation under the territorial laws is inferior to that of a prior appropriator.

SALE OF WATER BY PRIOR APPROPRIATOR.-Water legally appropriated may be sold by the owner for other useful purposes when it appears no more was appropriated than the owner could put to a beneficial use.

APPEAL from District Court, Alturas County.

Affirmed.

L Vineyard, for Appellant.

Where error is shown, the presumption is that appellant has been prejudiced by it, and it is incumbent on the respondent to see that the record discloses the fact that the appellant has not been so prejudiced. (Norwood v. Kenfield, 30 Cal. 393; Jackson v. Water Co., 14 Cal. 18.)

F. E Ensign and Lyttleton Price, for Respondents.

The right of a prior appropriator to water appropriated for a beneficial use is superior to that of a riparian owner of land, who became the owner after the appropriation. (Osgood v. Water etc. Co., 56 Cal. 571; Farley v. Mining etc. Co., 58 Cal. 142; Himes v. Johnson, 61 Cal. 259; Barney v. Sabron, 10 Nev. 217; Lux v. Haggin (Cal.), 4 P. 924; Water Co. v. Perdew (Cal.), 4 P. 426; Judkins v. Elliott (Cal.), 12 P. 116; Kaler v. Campbell, 13 Or. 596, 11 P. 301; Ware v. Walker, 70 Cal. 591, 12 P. 475; Hill v. Lenormand (Ariz.), 16 P. 266; Clough v. Wing (Ariz.), 17 P. 453; Elles v. Improvement Co., 1 Wash. 572, 21 P. 27; Geddis v. Parrish, 1 Wash. 587, 21 P. 314.) If a judgment is irregular, the proper practice is to move to correct it in the court below. (Fox v. West, 1 Idaho, 784; Anderson v. Parker, 6 Cal. 201; Leviston v. Swan, 33 Cal. 480.) Defects in form or explicitness in findings should be objected to in the court below. (Parke v. Hinds, 14 Cal. 415.) A judgment will not be reversed for any error therein which the records will enable the appellate court to fully correct. The judgment will be modified and affirmed. (Union Water Co. v. Murphy's Flat Fluming Co., 22 Cal. 620; Persse v. Cole, 1 Cal. 369; Gahan v. Neville, 2 Cal. 81.)

BEATTY C. J. BERRY, J., Dissenting.

OPINION

BEATTY, C. J.

In the year 1879 respondent Quigley took possession of a tract of unsurveyed land at the mouth of what has since been known as "Quigley gulch," near the town of Hailey, in Alturas county, and at the same time appropriated for the irrigation of said land the water of the stream flowing down said gulch; and the other respondents Drake and Covert, subsequently became owners in a part of said land and water. At later dates the several defendants in this action became possessed of certain lands lying upon said stream farther up the gulch, and commenced the use of the said water. To perpetually restrain them from such use, this action was commenced; and, upon the trial before the court, the right to the water was adjudged to respondents, and defendants were restrained and enjoined from using any thereof. From this judgment the appellant Earhart alone has appealed to this court.

From the findings of the court it appears that in 1879 said Quigley located the land referred to, and afterward he and said Drake, who had purchased a part, obtained patents therefor, and, so far as the findings show, still own it; that "in said year 1879, said Quigley took out of said Quigley creek, a stream flowing in said gulch, by a ditch built by him upon said land, all the waters flowing therein, and caused the same to flow upon a portion of said land"; that, "at the time of appropriation of said water as aforesaid, said Quigley posted a notice . . . . claiming six hundred inches of the water of said stream"; and the court also found "that said stream carries one hundred and fifty inches of water"; that afterward said Drake and Covert succeeded to all the water, and the three respondents "continued . . . . to use said water of said stream for agricultural purposes upon the land before mentioned"; that they have at all times asserted title to all of said water; that none of the defendants had ever made any appropriation of any of said water in pursuance of the laws of this territory; that "irrigation is necessary to the proper cultivation of the lands of all the parties, and all the waters of said stream are required for the irrigation of the lands of plaintiffs." It appears from Earhart's answer that he purchased his land in 1885, and that it had been occupied by his grantor since May, 1883. The appellant suggests the insufficiency of the findings. While they are not explicit, if they will support the judgment, they must not be disturbed. They show the respondents together own the land and water, the latter by prior appropriation; that they use it to irrigate this land, for which all the stream is used. They do not specify under what pressure the water is measured; but, as all in the stream is required by them, and as there are but one hundred and fifty inches therein, being four hundred and fifty less than was claimed by the act of appropriation, it cannot be discovered how, in this case, the failure to specify the pressure can result in injury to the appellant.

It is also found by the court "that some time in the year 188 , before the commencement of this action, plaintiffs Drake and Quigley sold a small quantity of said water to the Oregon Short Line Railway for a water supply at its station at Hailey." From the fact that respondent so sold a portion of said water, it is argued that they had attempted the appropriation of more than they needed for a "useful or beneficial purpose." It is, unquestionably, the law that more than is required for such purpose cannot be taken; that, when legally appropriated, it may be sold for some other useful purpose; and that its use for railroad necessities is such a purpose. Did respondents sell what they did not need? It appearing that in 1879 all the water of this stream was sufficient to irrigate but a part of the land now owned by respondents, it follows that the sale of the water was not from an unneeded surplus, but from that which they had actual use for. It is their privilege to dispose of what they need, if they desire. Its sale did not damage appellant, nor could its retention by them have benefited him. How the conveyances of this land and water were made, or by what arrangements the respondents together use them, does not appear, and, it not appearing to have been a matter of contest below, is immaterial here. The findings support the judgment.

The important question, for the settlement of which this appeal was chiefly brought, is what, if any, rights the appellant has to any of that water as a riparian proprietor. His claim is not based upon prior or any appropriation under our territorial laws, but upon the fact that the stream in question flows by its natural channel through his land hence, that he is entitled to the use thereof allowed by the common law. This doctrine of riparian proprietorship in water as against prior appropriation has been very often discussed, and nearly always decided the same way by almost every appellate court between Mexico and the British possessions, and from the shores of the Pacific to the eastern slope of the Rocky Mountains, as well as by the supreme court of the United States. But for the fact that it has elsewhere repeatedly appeared in the same court, it would seem surprising that it should now be seeking another solution in this. While there are questions growing out of the water laws and rights not fully adjudicated, this phantom of riparian rights, based upon facts like those in this case, has been so often decided adversely to such claim, and in favor of the prior appropriation, that the maxim, "First in time, first in right," should be considered the settled law here. Whether or not it is a beneficent rule, it is the lineal descendant of the law of necessity. When, from among the most energetic and enterprising classes of the east, that enormous tide of emigration poured into the west, this was found an arid land, which could be utilized as an agricultural country, or made valuable for its gold, only by the use of its streams of water. The new inhabitants were without law, but they quickly recognized that each man should not be a law unto himself. Accustomed, as they had been, to obedience to the laws they had helped make, as the settlements increased to such numbers as justified organization, they established their local customs and rules for their government in the use of water and land. They found a new condition of things. The use of water to which they had been accustomed, and the laws concerning it, had no application here. The demand for water they found greater than the supply, as is the unfortunate fact still all over this arid region. Instead of attempting to divide it among all, thus making it unprofitable to any, or instead of applying the common-law riparian doctrine, to which they had been accustomed, they disregarded the traditions of the past, and established as the only rule suitable to their situation that of prior appropriation. This did not mean that the first appropriator could take all he pleased, but what he actually needed, and could properly use without waste. Thus was established the local custom, which pervaded the entire west, and became the basis of the laws we have to-day on that subject. Very soon these customs attracted the attention of the legislatures, where they are approved and adopted, and next we find...