First Security Bank of Blackfoot v. State, 5514

• Decision Date: 26 September 1930
• Docket Number: 5514
• Citation: 49 Idaho 740,291 P. 1064
• Parties: FIRST SECURITY BANK OF BLACKFOOT, Respondent, v. STATE and WOOD LIVESTOCK COMPANY, Appellants
• Court: Idaho Supreme Court

291 P. 1064

49 Idaho 740

FIRST SECURITY BANK OF BLACKFOOT, Respondent, v. STATE and WOOD LIVESTOCK COMPANY, Appellants

No. 5514

Supreme Court of Idaho

September 26, 1930

WATERS AND WATERCOURSES-WATER RIGHTS-NATURE OF-CHANGE IN PLACE OF USE.

1. Water right is "property right."

2. Owner of water right cannot be deprived of right to use water where he will and change its place of use, provided rights of others are not adversely affected (C. S., sec. 5582).

3. Statute empowering commissioner of reclamation to authorize change in place of use of water neither created nor detracted from water rights and incidents thereto (C. S., sec. 5582).

4. As regards application for change in place of use of water statute must be followed, where it applies (C. S., sec 5582).

5. Where owner of water rights appurtenant to land to which he has no title desires to change place of use, he may proceed in equity (C. S., sec. 5582).

6. Proceedings before district court on appeal from commissioner of reclamation, denying application for change in place of use of water, are de nova (C. S., sec. 5582).

7. District court held within equitable jurisdiction in decreeing change in place of use of water, where owner of water right did not have title to land to which right was appurtenant (C. S., sec. 5582).

8. In action involving change in place of diversion of water reasons for contention that change will or will not injure other appropriators may be considered (C. S., sec. 5582).

9. Water may be appropriated for beneficial use on land not owned by appropriator, and such water rights become appropriator's property.

10. Generally, water right is not necessarily appurtenant to land on which it is used, and may be separated therefrom.

11. Water right initiated by lessee is lessee's property unless lessee was acting as agent of owner.

12. Lessee of state's school lands formerly held by United States, who initiates water rights, is entitled thereto as his property as against owner of land (Carey Act (43 U.S. C. A., sec. 641 et seq.); C. S., sec. 3018).

APPEAL from the District Court of the Sixth Judicial District, for Custer County. Hon. Ralph Adair, Judge.

Action to transfer place of use of water. Decree for petitioner. Affirmed.

Judgment affirmed. Costs awarded to respondent.

W. D. Gillis, Attorney General, A. C. Cordon, Assistant Attorney General, and Peterson, Baum & Clark, for Appellants.

The reclamation commissioner in the first instance and the district court on appeal from his order are limited under this statute to the cases clearly within the statute. ( Wadsworth Ditch Co. v. Brown, 39 Colo. 57, 88 P. 1060; Lower Letham Ditch Co. v. Bijou Irr. Co., 41 Colo. 212, 93 P. 483; State v. Adair, ante, p. 271, 287 P. 950.)

The statute in question was never intended to apply where there is a bona fide dispute as to the ownership of the water itself. Upon the case developing to the point where it appeared that title to water was involved, the commissioner was without power to proceed further.

The reclamation commissioner, like all board officers or bodies, is a creature of statute and can exercise no authority except that expressly given or necessarily implied. (Evans v. Swendsen, 34 Idaho 290, 200 P. 136; Orr v. State Board, 3 Idaho 190, 28 P. 416; Kootenai Co. v. State Board, 31 Idaho 155, 169 P. 935.)

John W. Jones and Guy Stevens, for Respondent.

An owner of a water right, however acquired, may sell the water separate from the land. This is a vested right which the owner can dispose of just as he can dispose of any property owned by him. (Hall v. Blackman, 8 Idaho 272, 68 P. 19; Hard v. Boise City Irr. Co., 9 Idaho 589, 76 P. 331, 65 L. R. A. 407; Bennett v. Twin Falls N. S. L. & W. Co., 27 Idaho 643, 150 P. 336; Sanderson v. Salmon River C. Co., 34 Idaho 145, 199 P. 999; Glavin v. Salmon R. C. Co., 39 Idaho 3, 226 P. 739; Koon v. Empey, 40 Idaho 6, 231 P. 1097.)

We submit that in any event the right to change the place of use would exist in the absence of statutory provisions as an incident of ownership. (Lower Latham Ditch Co. v. Bijou Irr. Co., 41 Colo. 212, 93 P. 483.)

The hearing of this matter in the district court was a hearing of an "original proceeding" which was "commenced" in said court. The jurisdiction was not appellate but original and the district court had general jurisdiction in said cause. (State v. Adair, ante, p. 271, 287 P. 950.)

GIVENS, C. J. Budge, Lee, Varian and McNaughton, JJ., concur.

OPINION

GIVENS, C. J.

The First Security Bank of Blackfoot applied to the commissioner of reclamation for permission to change the place of use of four and two-fifths second-feet of the water of Big Creek in Custer county. Protests were filed by the Wood Live Stock Company and the State of Idaho and after a hearing before the commissioner the application was denied. The Bank perfected a statutory appeal (C. S., sec. 5582) to the district court, which reversed the decision of the commissioner and ordered the issuance of a certificate authorizing the transfer.

In 1910 one Reese was decreed 450 inches of Big Creek, this water by the decree being made appurtenant to certain lands in section 31, township 13 north, range 24 E., B. M.; also to certain lands in section 36, township 13 north, range 23 E., B. M. Reese acquired title to the lands in section 31 but not to the lands in section 36 which were school lands belonging to the state.

When the appropriation of the water was made by the predecessors in interest of Reese, and for years thereafter and while they were under irrigation, the lands now comprising section 36 were unsurveyed lands of the United States. Upon their survey and allocation as school lands, if not before, title passed to the state of Idaho. After the survey, Reese continued to occupy the lands in section 36 as lessee of the State.

By mesne conveyances title to the lands in section 31 and also the water rights appurtenant to these lands and the water rights used by Reese and his predecessors in connection with the lands in section 36 passed to the First Security Bank, the petitioner in this action. The Bank has entered into a contract of sale with A. A. Ziegler whereby title to these lands and water rights is to pass to Ziegler.

Prior to entering into this contract, Ziegler occupied and farmed the lands as lessee. Since 1918 Ziegler has also leased the lands in section 36, first from the State and then, after sale of this land by the State to the Wood Livestock Company in 1919, from the latter company. Thus Ziegler and his predecessors in interest have been in continuous possession of the lands on which the water in question has been used, both in section 31 and section 36, either as owner or lessee since the original appropriation of the water. During all this time it appears that the lands in section 36 received their pro rata share of the decreed water. The Bank, alleging the right to the use of the water, now proposes to divert the water used on lands in section 36 to lands owned by the Bank.

At the outset the right of the commissioner of reclamation and the district court to entertain the petition herein under the facts of this case is challenged. C. S., sec. 5582, provides that any person "owning any land to which water has been made appurtenant . . . . desiring to change the place of use of such water shall first make application to the department of reclamation."

The First Security Bank does not own the land on which the water it desires to divert has heretofore been used, and hence the appellants urge that the commissioner of reclamation and the district court had no right to consider its application. We believe this position to be untenable for this reason. It is well settled in this state and elsewhere that a water right is a property right. (Hard v. Boise City Irr. Co., 9 Idaho 589, 76 P. 331, 65 L. R. A. 407; Bennett v. Twin Falls Co., 27 Idaho 643, 150 P. 336; Waha v. Lewiston Co., 158 F. 137; Strickler v. Colorado Springs, 16 Colo. 61, 26 P. 313; Kinney on Irrigation and Water Rights, 2d ed., secs. 768, 1015.) One of the valuable incidents of this property right of which the owner cannot be deprived is the right to use it where he will and to change its place of use, providing always that by such use or such change in the place of use the rights of others are not adversely affected. (Sanderson v. Salmon River Co., 34 Idaho 145, 199 P. 999; Bennett v. Twin Falls Co., supra; New Cache la Poudre Irr. Co. v. Water Co., 29 Colo. 469, 68 P. 781; Wadsworth Ditch Co. v. Brown, 39 Colo. 57, 88 P. 1060; Lower Latham Ditch Co. v. Bijou Irr. Co., 41 Colo. 212, 93 P. 483; Kinney, supra, secs. 869, 1364.)

The statute empowering the commissioner of reclamation to authorize a change in the place of use was designed to provide a method for making such changes which would eliminate friction and a multiplicity of lawsuits among water users. But it neither added to nor detracted from a property right which already existed. (Wadsworth Ditch Co. v. Brown, supra; Lower Latham Ditch Co. v. Bijou Irr. Co., supra.)

Of course the procedure indicated by the statute must be followed where the statute applies. But where, as here, the statute is not applicable, because the applicant is not the owner of the land to which the water has been made appurtenant, the owner of the water right, desiring to change its place of use, is not without a remedy. He, on the contrary, may proceed in a court of equity. (Lower Latham Ditch Co. v. Bijou Irr. Co., supra.)

This is substantially the procedure followed by the petitioner in this case. Upon denial of its petition by the commissioner the Bank appealed to the district court. Proceedings before the district court in matters of this kind are de...