Follett v. Taylor Bros.

• Decision Date: 17 February 1956
• Docket Number: No. 8167,8167
• Citation: 77 Idaho 416,294 P.2d 1088
• Parties: Carl FOLLETT, Plaintiff-Appellant, v. TAYLOR BROTHERS, a copartnership composed of D. A. Taylor and W. D. Taylor, as firm members, and D. A. Taylor and W. D. Taylor, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 1088

294 P.2d 1088

77 Idaho 416

Carl FOLLETT, Plaintiff-Appellant, v. TAYLOR BROTHERS, a copartnership composed of D. A. Taylor and W. D. Taylor, as firm members, and D. A. Taylor and W. D. Taylor, Defendants-Respondents.

No. 8167.

Supreme Court of Idaho.

Feb. 17, 1956.

Rehearing Denied March 28, 1956.

Ben B. Johnson, Preston, Merrill & Merrill, Pocatello, for appellant.

S. T. Lowe, Kales E. Lowe, Burley, Robert M. Kerr, Jr., Blackfoot, for respondents. SMITH, Justice.

Appellant seeks relief against respondents:

(1) For damages to appellant's 1948 crops allegedly caused by respondents' wrongful diversion of irrigation water from Raft River to which appellant alleges entitlement by reason of his prior decreed water rights; and

(2) To enjoin respondents from diverting from Raft River upon their lands by their newly constructed diversion works or otherwise, any of the water of said river when the decreed rights of appellant are not filled and the water is needed by him for irrigation uses.

The issues were framed by appellant's amended complaint and respondents' answer thereto, respondents' cross-complaint and appellant's answer thereto. The facts and matters in issue are essentially as hereinafter set forth.

Raft River is located largely in Cassia County, flowing northerly into Snake River. Appellant's decreed water rights involved in this proceeding are appurtenant to his 1,400-acre ranch situate in the Raft River watershed.

Respondents' 3,000 acre Bar M Ranch is situate southerly from appellant's ranch extending southerly on both sides of Raft River some six miles, but is below and extends northerly from the confluence of Raft River and Cassia Creek. The most northern portion of respondents' Bar M Ranch is situate some six miles southerly and upstream from the southern portion of appellant's ranch.

The so-called Heglar Ranch, a 160-acre tract, is a part of the most northern or downstream portion of respondents' Bar M Ranch.

Water rights for the irrigation of appellant's lands were adjudicated in favor of appellant's predecessor, January 21, 1913, by the Sweetser decree, in the action of Sweetser Farms, Ltd., v. Cotterell, et al., in the Fourth Judicial District in and for Cassia County, in amounts (c. f. s. indicating cubic feet of water per second of time) and dates of priority as follows:

10.1 c. f. s. April 29, 1883,

3.8 c. f. s. April 1, 1886,

21.0 c. f. s. January 25, 1908.

Later, water rights on Raft River and Cassia Creek were adjudicated in the action of Albion-Idaho Land Company v. Jobe Adams, et al., in the United States District Court, District of Idaho, Southern Division. The court by its decree therein, referred to herein as the Federal Decree, filed October 23, 1928, adjudicated water rights to appellant's lands, then owned by his predecessor, International Mortgage Bank, in amounts and with dates of priority as decreed by the Sweetser decree. The Federal Decree further provides that the water, for the purpose of satisfying those rights so decreed to appellant's lands, shall be taken from Raft River at the Heglar Ranch.

The court by the Federal Decree also adjudicated the water rights to the Bar M Ranch in the amount of 34.8 c. f. s. of water from Raft River and Cassia Creek with dates of priority ranging from April 30, 1872 to November 13, 1886, with 32.2 c. f. s. of those rights effective only during the period from April 1 to July 1 of each year. This left 2.6 c. f. s. effective for the balance of each irrigation season.

Cassia Creek Irrigation Company, Inc., on April 1, 1939, was the owner of the Bar M Ranch. Respondents were stockholders in such irrigation company and respondent D. A. Taylor was a director thereof. On that date, April 1, 1939, such irrigation company transferred all of the aforesaid water rights, adjudicated to the Bar M Ranch, to landowners who diverted waters above the confluence of Raft River and Cassia Creek, at points of diversion varying up to some 15 miles upstream on Cassia Creek. Transfer approved, Beecher v. Cassia Creek Irr. Co., 66 Idaho 1, 154 P.2d 507. Prior to such transfer, water additional to the amounts adjudicated to the Bar M Ranch, were required to overcome transmission losses to points of diversion; for instance, delivery of the 2.6 c.f.s. of water to the Bar M Ranch on and after July 1st of each year required not less than 22 c.f.s. of water to be emitted from Cassia Creek to flow down Raft River. Those waters as well as other accumulations of water which flowed down or percolated back to the river, flowed down through the Heglar Ranch, below the main Bar M Ranch and were used in making distributions of water rights downstream, including the water rights adjudicated to the lands which appellant owns.

May 24, 1946, respondents purchased from Cassia Creek Irrigation Company, Inc., the Bar M Ranch, but without the adjudicated water rights theretofore decreed to said lands by the Federal Decree, since these rights had been separated from the lands and transferred upstream as aforesaid.

During the year 1947 respondents, owners of the Bar M Ranch, constructed a dam to be used as a headgate in Raft River channel, in the form of concrete abutments to hold flash boards. Respondents, during the 1948 irrigation season, by use of such concrete dam and by use of a pole dam constructed about 1 1/2 miles further downstream, proceeded to divert onto their Bar M Ranch lands all of the water flowing in Raft River after high water season, at such places of diversion. Appellant asserts that respondents thereby deprived him, appellant, of his adjudicated waters necessary for crop production during the year 1948, causing his 1948 crop loss complained of.

At no time prior to 1948 were the waters of Raft River interfered with as by the attempt of respondents during that year, after high water season, to divert onto their lands all of the water of Raft River then flowing in the stream above the Heglar Ranch. At no time prior to 1948 had the delivery of water to appellant's ranch been so interfered with. There appears to have been waters available to apply to the adjudicated rights of appellant's lands.

The record shows that waters which were made appurtenant to the Bar M Ranch by the Federal Decree augmented and increased the waters in Raft River below the main Bar M Ranch properties, i. e., at the Heglar Ranch, by percolation and return flow and in instances by nonuse by the owners.

Respondents during 1947 filed an application with the Department of Reclamation of the State of Idaho for a permit to appropriate 60 second feet of water of Raft River for irrigation purposes, with points of diversion above appellant's lands and above the Heglar Ranch, the waters thereby to be diverted to cover a greater area of lands than theretofore. Respondents set forth in such application for permit that the water applied for had been appropriated and used on their Bar M Ranch lands since March 21, 1941.

Respondents in their cross-complaint alleged that on or about April 1, 1941, their predecessors in interest and they, respondents, appropriated for use in and upon the Bar M Ranch lands all the water flowing in Raft River at the south boundary line of said lands, amounting to 3,000 inches or 60 c. f. s. The water of Raft River thereby affected was the flow of the river above or south of the Heglar Ranch. Respondents further allege their ownership of the use and of the right to the use of said water under claim of adverse possession.

Respondents based their claim to the 60 c. f. s. of the waters of Raft River, superseding the old adjudicated rights of appellant, and in bar to appellant's claimed prior decreed rights to the waters of Raft River, singularly by reason of a restrictive provision contained in the Federal Decree hereinbefore referred to, which reads as follows:

'Provided, however, that the water for the purpose of satisfying the rights of said International Mortgage Bank shall be taken from Raft River from what is known as the Heglar Ranch, and that the said International Mortgage Bank shall not claim the right to have any of the water above the Heglar Ranch used for the purpose of satisfying the amounts given them by virtue of the decree aforesaid.' (Then follows land description of the Heglar Ranch.)

On the other hand appellant likewise depends upon the Federal Decree in protection of his adjudicated rights to the waters of Raft River and particularly upon the provisions thereof as follows:

'* * * at all times when the water hereby decreed is not actually used upon the land to which the same is hereby decreed, the said water must be permitted to flow down the stream for the benefit of junior appropriators.' (From paragraph 18 of said decree.)

'And it is further ordered, adjudged and decreed, that the rights of each of the parties hereto, hereinafter mentioned and set out is the right to divert and use the water of Raft River in accordance with the priorities hereinafter set out and not otherwise, and that at such times as there shall be an insufficient amount of water flowing in said Raft River to fill and supply all of the rights hereinafter mentioned and set out that the various parties hereto shall be entitled to receive their various amounts of water hereinafter mentioned in accordance with the priorities hereinafter specifically set out.' (From paragraph 19 of said decree.)

'It is further ordered, adjudged and decreed that each of the parties hereto, both plaintiff and defendants, cross-complainants and intervenors, together with their heirs, successors, assigns, agents, servants and employees, are hereby severally and particularly restrained and enjoined from using, attempting to use, diverting or attempting to divert any of the waters of said Raft River or its tributaries as hereinbefore defined and set out, in any manner except as hereinbefore provided and set out and in strict accordance with the terms of this decree.' (From general...