Frederickson v. Deep Creek Irrigation Co.

• Decision Date: 29 May 1908
• Citation: 96 P. 117,15 Idaho 41
• Parties: PETER FREDERICKSON et al., Plaintiffs and Appellants, v. THE DEEP CREEK IRRIGATION CO. et al., Defendants, Intervenors and Appellants
• Court: Idaho Supreme Court

96 P. 117

15 Idaho 41

PETER FREDERICKSON et al., Plaintiffs and Appellants, v. THE DEEP CREEK IRRIGATION CO. et al., Defendants, Intervenors and Appellants

Supreme Court of Idaho

May 29, 1908

CONFLICT OF FINDINGS-JUDGMENT-UNCERTAINTY OF.

1. Where the finding of facts is contradictory and uncertain and the intention of the court cannot be ascertained therefrom, and certain parts of the judgment are not supported by all of the findings, the judgment will be reversed and remanded for new findings and judgment.

(Syllabus by the court.)

APPEAL from the District Court of Fifth Judicial District for Oneida County. Hon. Alfred Budge, Judge.

Action to determine the amount and priorities of certain claimants to the waters of Deep creek and its tributaries, for irrigation and other purposes. Judgment making distribution thereof. Reversed.

Reversed and remanded, with instructions.

George E. Gray, and Gray & Boyd, for Plaintiffs and Appellants.

D. C McDougall, and W. E. Borah, for Defendants and Appellants.

Counsel cite no authorities on the point decided.

SULLIVAN J. Ailshie, C. J., and Stewart, J., concur.

OPINION

SULLIVAN, J.

This action was brought to determine the rights of the several parties to the action to the use of the waters of Deep creek and its tributaries, Oneida county. The action was tried by the court and finding of facts was made and judgment was entered, distributing the waters of said stream between the several parties to the action. It appears that none of the parties were satisfied with the judgment, and the appeal is from the judgment by both the plaintiffs, defendants and intervenors. The plaintiffs-appellants ask that that portion of the decree be modified which reads as follows: "The defendant, the Deep Creek Irrigation Co., is entitled at all times to all of the waters of Third creek, a tributary of Deep creek, for reservoir purposes." This contention is based on the ground that said portion of the decree is not supported by the findings of fact, and cites in support of that contention the finding of fact No. 2, which is as follows:

"It was stipulated by and between the parties to this action that the Deep Creek Irrigation Company is entitled to the priority to the right to the use of the waters of Deep creek, to the amount of 175 inches, to be diverted through its respective ditches, said amount being the amount admitted by the plaintiffs and intervenors to be necessary for the proper irrigation of the lands owned and irrigated by the shareholders of said company in the city of Malad, Oneida County, Idaho, and the independent users who now take water for their respective holdings through the ditches of said company."

The court further found that the plaintiffs-appellants were entitled in the aggregate to 400 miner's inches of water of Deep creek from October 15th to May 15th, of the following year, by reason of their appropriation made May 15, 1867.

By the eighth finding of fact, the court found that "In May, 1889, the plaintiffs, defendants and intervenors, in pursuance to proper notice given, called a public meeting, for the purpose of agreeing upon the distribution of the waters of Deep creek between what are known as the hay-land people and the upper-land people, at which meeting all of the parties to this action, or their predecessors in interest, were present or represented, at which meeting an agreement was made and entered into by and between what are known as the hay-land people, or those who own and irrigate hay-lands, situated under said Deep creek, and what are known as the upper-land people, or those who irrigate farms situated under said Deep creek, all of said lands being situated near the city of Malad, in Oneida county, Idaho, that the waters of said Deep creek, to the amount of four hundred inches, should be permitted to flow down said Deep creek to the lands of the plaintiffs herein, who are what are known as the hay-land people, and should be permitted to so flow between the 15th day of October and the 15th day of the following May of each and every year."

By its ninth finding of fact, the court found that each and every year since the year 1867, and subsequent to said agreement, with the exception of divers times when their use of said waters of Deep creek was interfered with by the defendant corporation herein, the plaintiffs have used said water as provided for in said agreement.

By finding No. 10, the court in substance found that the watermasters and the board of directors of said defendant corporation have at all times recognized the rights of said plaintiffs, and permitted the waters of Deep creek to flow to the plaintiffs and upon what are known as the hay-lands, between the 15th day of October and the 15th day of the following May of each and every season.

By conclusion of law No. 8, the court concluded from the facts that in May, 1889, the plaintiffs, defendants and intervenors, and their predecessors in interest, after proper notice given, called a public meeting for the distribution of the waters of Deep creek between the hay-land people and the upper-land people; that at said meeting, all of the parties to this action, or their grantors or predecessors in interest, were present, at which meeting an agreement was made and entered into whereby it was agreed that the hay-land people were entitled to the use of 400 inches of the water of said Deep creek for the irrigation of their hay-lands, between the 15th day of October and the 15th day of the following May of each and every year.

The court also found that the Deep Creek Irrigation Co. did not use any of the waters of Third creek for reservoir purposes or otherwise until the year 1889, and also that these plaintiffs have ever since said time had...