Furey v. Taylor

• Citation: 127 P. 676,22 Idaho 605
• Parties: CHARLES H. FUREY, Appellant, v. SAMUEL F. TAYLOR, Jr., et al., Respondents
• Decision Date: 05 October 1912
• Court: United States State Supreme Court of Idaho

127 P. 676

22 Idaho 605

CHARLES H. FUREY, Appellant, v. SAMUEL F. TAYLOR, Jr., et al., Respondents

Supreme Court of Idaho

October 5, 1912

EVIDENCE-REVIEW-PERMIT TO APPROPRIATE WATER-STATE BOARD OF EQUALIZATION-POWER-STATE LAND-SALE.

(Syllabus by the court.)

1. Under the provisions of sec. 4434, Rev. Codes, as amended Laws 1911, p. 379, and Rule 54 of this court, the transcript of the evidence certified to by the stenographer must be settled by the trial judge in order to have the same reviewed upon an appeal to this court.

2. Where an objection to the transcript, upon the ground that the same does not show that the evidence transcribed by the stenographer was settled by the trial judge, is made for the first time in this court when the cause is brought on for hearing upon the argument upon the merits, such objection will not be considered, because such objection is not made in the manner prescribed by Rule 54 of the rules of this court.

3. Under the constitution and laws of this state, a person desiring to appropriate the water of a stream within this state may do so either by actually diverting the water and applying it to a beneficial use, or he may pursue the statutory method by posting and recording his notice and commencing and prosecuting his work within the statutory time, and to make an appropriation under the constitution and statute, an appropriation may be made and completed, although a permit to make such appropriation is not secured from the state engineer by the person desiring to make such appropriation.

4. Where a decree is entered in the district court determining the priorities of appropriations by the parties to such suit and in such decree F. is awarded 590 inches of the waters of Big Lost river, and 130 inches of the waters of Pass creek, a tributary of Big Lost river, and after such decree is rendered F. is unable to secure the water adjudged him by reason of others taking such property, and by reason of being unable to conduct the same through the ditches of F., and F makes an appropriation of 350 inches additional water from Pass creek, and such water so appropriated by F. was surplus water in said creek and unappropriated by any other person and such water so appropriated is applied to a beneficial use upon the lands of F. upon which he was adjudged the priority in the case adjudicated, and F. uses said water because he is unable to get any other water upon his said land continuously after such appropriation for the period of four years, such water becomes an appurtenance to his land, and is not subject to appropriation by a subsequent appropriator who attempts to appropriate the same out of Pass creek.

5. Held, in this case, that the evidence is insufficient to support the findings and judgment of the trial court.

APPEAL from the District Court of the Sixth Judicial District for Custer County. Hon. J. M. Stevens, Judge.

An action to determine the relative rights of appropriators of water. Reversed.

Judgment reversed. Costs awarded to appellant. Petition for rehearing denied.

Hawley, Puckett & Hawley, for Appellant.

The appellant being the prior appropriator of the 350 inches claimed by him and as shown by a preponderance of the evidence, and having applied the same to a beneficial use in growing crops, although he never applied to the state engineer for a permit or procured a permit or license from the state engineer, his right is superior and paramount to any right that a subsequent appropriator can procure without regard to any decree of court decreeing waters to the same land from another source. The only question that defendants could raise in this action is as to appellant's diversion and application of the water claimed by him to a beneficial use, and the date thereof. (Nielson v. Parker, 19 Idaho 727, 115 P. 488.)

Clark & Budge, for Respondents, cite no authorities.

STEWART, C. J. Ailshie and Sullivan, JJ., concur.

OPINION

STEWART, C. J.

This action was brought by the appellant against the respondents for the purpose of determining the relative rights of the appellant and the respondents to the waters of Pass creek, which empties into Big Lost river, in Custer county. The cause was tried to the court, findings of fact and conclusions of law were made, and a decree entered: First, that the appellant is not entitled to any relief, and that his cause of action should be dismissed; second, that the respondents are entitled to a decree establishing their rights in and to the use of water from Pass creek under dates of priority as follows: S. F. Taylor, Jr., two cubic feet per second of time, date of priority May 8, 1907; J. H. Diers, two and four-tenths cubic feet per second of time, date of priority December 16, 1907; Susie J. Diers, six and four-tenths cubic feet per second of time, date of priority December 16, 1907. This appeal is from the judgment.

The appellant urges but one question upon this appeal, and that is, the sufficiency of the evidence to sustain the findings and judgment.

Upon the hearing in this court counsel for respondents object to the consideration of the sufficiency of the evidence to sustain the judgment, for the reason that the evidence is not attached to the transcript, and that it appears from the record that the evidence, as certified to by the stenographer, was filed with the clerk separately and has never been settled by the judge of the court. While it is true that the transcript does not show that the evidence transcribed by the stenographer was settled by the trial judge, as required by the statute, yet this objection is made for the first time at the time the case was set for hearing upon its merits, and was not made at the time prescribed by the rules of this court by proper motion, and for that reason the same will not be considered, and the case will be heard upon its merits. Counsel, however, should not, in taking an appeal, overlook the provisions of the statute, sec. 4434, Rev. Codes, amended Laws 1911, p. 379, and the decision of this court in the case of Grisinger v. Hubbard, 21 Idaho 469, 122 P. 853, also Rule 54 of this court.

The facts in this case, as shown by the record, are as follows: An action was brought in the sixth judicial district of the state of Idaho for Custer county, entitled S. T. Moe et al. v. Henry Harger et al., for the purpose of determining the relative rights of all the water users of the Big Lost river and its tributaries, and a decree was entered therein whereby Charles H. Furey was adjudged 130 inches of the water of Pass creek, a tributary of Big Lost river, the appropriation dating from June 1, 1883. In said action Charles H. Furey was also adjudged the right to appropriate 590 inches of the water from Big Lost river, and that all of said water so adjudged was applied to a beneficial use upon the same lands upon which appellant claims in the present action the right to appropriate 350 inches from Pass creek as an additional appropriation to be used upon the same land.

The record also shows the date of the decree in the Moe-Harger case to be somewhat uncertain; the transcript does not contain a copy of the decree, neither is the decree certified...