Farmers' Co-Operative Ditch Co. v. Riverside Irrigation District, Ltd.

• Decision Date: 15 May 1909
• Citation: 102 P. 481,16 Idaho 525
• Court: Idaho Supreme Court
• Parties: FARMERS' CO-OPERATIVE DITCH COMPANY, a Corporation, Plaintiff and Respondent, v. RIVERSIDE IRRIGATION DISTRICT, LTD., et al., Defendants and Respondents. NAMPA & MERIDIAN IRRIGATION DISTRICT, PIONEER IRRIGATION DISTRICT, RIVERSIDE IRRIGATION DISTRICT, LTD., and NEW YORK CANAL COMPANY, LTD., Defendants and Appellants

102 P. 481

16 Idaho 525

FARMERS' CO-OPERATIVE DITCH COMPANY, a Corporation, Plaintiff and Respondent, v. RIVERSIDE IRRIGATION DISTRICT, LTD., et al., Defendants and Respondents.

NAMPA & MERIDIAN IRRIGATION DISTRICT, PIONEER IRRIGATION DISTRICT, RIVERSIDE IRRIGATION DISTRICT, LTD., and NEW YORK CANAL COMPANY, LTD., Defendants and Appellants

Supreme Court of Idaho

May 15, 1909

LACHES IN PERFECTING APPEAL-STIPULATION CONSIDERED-IRRIGATION-PRIORITY OF APPROPRIATION-ESTABLISHMENT OF PRIORITIES-DUTY OF WATER-COMPETENT EVIDENCE TO ESTABLISH THE DUTY OF WATER-TAXING COSTS OF MAKING SURVEY.

1. Showing examined in this case and held sufficient to exempt the appellants from the charge of laches imputed to appellants in McCrea v. McGrew, 9 Idaho 382, 75 P. 67, and Smith v. American Falls Canal & Power Co., 15 Idaho 89, 95 P 1059.

2. A stipulation entered into between the attorneys for the respective parties in an action, whereby they agree that the complaint, answers and cross-complaints in the case shall be "deemed amended to conform to the facts as found by the court," will not preclude the losing party from thereafter questioning the sufficiency of the findings or of the facts proven to support the findings.

3. Evidence in this case examined and held sufficient to support the findings as to the respective rights of diversion and priorities of the several appropriators of water from the Boise river.

4. Evidence in this case examined and held insufficient, when viewed in the light of the affidavits on motion for a new trial, to support the finding as to the duty of water in the Boise Valley, and particularly insufficient to support the finding that "The quantity of water required for the successful irrigation and cultivation of said lands, measured at the intake of the respective ditches under a four-inch pressure, is as follows: For bench lands, one inch per acre. For bottom lands, one and one-tenth inch per acre,"-the affidavits on motion for a new trial conclusively establishing that as large an acreage cannot be irrigated under the decree as was formerly irrigated by the respective appropriations prior to the entry of such decree, and that a less quantity of water per acre will successfully irrigate the lands under the canals.

5. The duty of water for the successful irrigation of lands cannot be established by guesswork and hearsay evidence, or by witnesses who have never measured water applied to lands and have never seen water measured, and have made no tests in reference thereto, and do not know the size of a stream and the grade or pressure necessary to carry a given number of inches of water as measured under the irrigation law.

6. A witness, in order to be competent and qualified to testify as to the number of inches of water necessary for the successful irrigation of lands, must have had some observation or experience in the measurement of water and its application to the land.

7. The amount of water that a water user and consumer has been in the habit of using and applying to his lands cannot be accepted as the true test of the duty of water, but the question to be determined in such case is the amount actually necessary for the useful or beneficial purpose to which the water is to be applied.

8. In determining the duty of water, reference should always be had to lands that have been prepared and reduced to a reasonably good condition for irrigation. Economy must be required and demanded in the use and application of water, and this economy should be as rigidly demanded of a water user who has a prior and superior water right as of any other person.

9. The expenses incurred in making surveys, maps and plats by the state engineer under the irrigation law and in obedience to an order of the trial court is a proper expense to be taxed up against the appropriators and claimants of water who are litigants in the case, and this may be done even though the maps, plats and report be not introduced in evidence.

10. In such case the expense incurred by the state engineer is done in compliance with a specific provision of the statute, and in obedience to an order of the court, and does not fall within the general rule applicable to the allowance of costs for witnesses and other evidence.

(Syllabus by the court.)

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. George H. Stewart, Judge.

Action by plaintiff to have the rights and priorities of the several appropriators of water from Boise river established and decreed. Judgment decreeing the respective rights and priorities. Certain defendants move for a new trial and appeal from an order overruling the same. Judgment affirmed except as to the duty of water, and as to that issue reversed and new trial ordered.

Rehearing denied.

Hugh E McElroy, W. E. Borah, Rice & Thompson, and E. J. Frawley, for Appellants.

Both under the constitution and the laws of the state, the public have legal rights in a case of this character as well as the private litigants. Both the law and the public policy of the state demand that water for irrigation shall be used economically, and such use will be enforced by the courts. (Van Camp v. Emery, 13 Idaho 208, 89 P. 752.)

The conclusion of the court below is at variance with the experience and conclusions of impartial and disinterested investigators who testified herein or are referred to in our affidavits, as to the duty of water. No expert opinion can be secured which will sustain a finding that either an inch or one and one-tenth inches of water is necessary for the proper irrigation of an acre of land in Boise Valley. The conclusion of the court is based upon the interested opinions of witnesses who were not accustomed to the use of a definite quantity of water measured under a continuous flow, over a weir, or other measuring device, but whose experience was limited to the use of water taken at such times and in such quantities as they desired, without measurement or restriction. The opinions of the witnesses upon which the conclusion of the court was based did not relate to an economical use of water, and did not relate to any standard of use, based upon the proper preparation of the land for irrigation or any rotation of crops including the raising of grain or fruit; but such testimony related to the irrigation of crops requiring the maximum amount of water without requiring a standard of preparation of the soil so as to permit an economical use.

We specially challenge allotment No. 2 (The Jacobs Canal Co Ltd.), on the ground that it is not sustained by the evidence. The record fails to show application of the water to beneficial use for irrigation, and we challenge the date found by the court and assert that the water referred to is the property of other parties. There is no showing when the water used for irrigation by parties other than Davis was first diverted or applied to a beneficial use, or showing of the acreage irrigated, outside the Davis land, other than the report of the state engineer, and this acreage wholly fails to sustain an allotment of 1,000 inches of water. We also challenge allotment No. 30, originally owned by Perrault and Johnson, but represented on motion for new trial by Capital Water Company. As the decree now stands, absolute title to 2,500 inches of water is vested in this company, with a use limited to 739 1/2 acres of land. "The appropriation must be for some useful or beneficial purpose, and when the appropriator or his successor in interest ceases to use it for such purpose, the right ceases." (Sec. 3156, Rev Stat.) The supreme court of California, in construing the above statute, has held that this would give the period of five years, the period of the statute of limitations in actions against realty. (Smith v. Hawkins, 110 Cal. 122, 42 P. 453.) Our law never contemplated that a water right might be held for the period of forty years without application to a beneficial use.

Smith & Scatterday, S. H. Hays, Frank Martin, Ira E. Barber, Karl Paine, A. A. Fraser, Griffiths & Griffiths, W. A. Stone, J. L. Niday, and H. E. Wallace, for Respondents.

Newly discovered evidence as ground for a new trial, in order to be sufficient, must (1) be such as will probably change the result if a new trial is granted; (2) must have been discovered since the trial; (3) must be such as could not have been discovered before the trial by the exercise of due diligence; (4) must be material to the issue; (5) must not be cumulative to the former issue, and (6) must not be merely impeaching or contradicting the former evidence. (People v. Priori, 164 N.Y. 459, 58 N.E. 668; Hayne on New Trial & Appeal, sec. 88, p. 252; Howard v. Winters, 3 Nev. 539; 1 Spelling's New Trial and App. Prac., pp. 344, 347; Tate v. Tate, 85 Va. 205, 7 S.E. 352; Wallace v. Tumlin, 42 Ga. 462; Callahan v. Caffarata, 39 Mo. 136.) Applications for new trial on the ground of newly discovered evidence must be looked on with suspicion and disfavor; the applicant must make a strong case, both in respect to diligence on his part in preparing for the trial and as to the truth and materiality of the new evidence, and that, too, by the best evidence that can be obtained. (Black v. City of Lewiston, 2 Idaho 276, 281, 13 P. 80; Arnold v. Skaggs, 35 Cal. 684; Tibbett v. Sue, 125 Cal. 544, 58 P. 160; People v. Sutton, 73 Cal. 243, 15 P. 86; Baker v. Joseph, 16 Cal. 180; Spottiswood v. Weir, 80 Cal. 448, 22 P. 289.)

"Applications for a new trial on the ground of newly discovered evidence are addressed to the discretion of the court below, and the action of the court below will not be disturbed except for an abuse of discretion, the presumption being that the discretion was properly exercised." (Hall v Jensen, 14...