Geertson v. Barrack

• Decision Date: 24 February 1892
• Citation: 29 P. 42,3 Idaho 344
• Parties: GEERTSON v. BARRACK ET AL
• Court: Idaho Supreme Court

29 P. 42

3 Idaho 344

GEERTSON v. BARRACK ET AL

Supreme Court of Idaho

February 24, 1892

WATER RIGHTS-APPROPRIATION-PRIORITY OF RIGHT-PRIOR APPROPRIATOR.-1. The prior appropriator of water for irrigation purposes is entitled to the water so appropriated necessary to the irrigation of his land as against subsequent appropriators.

AMOUNT OF APPROPRIATION, HOW DETERMINED.-2. The court must determine the date and amount of each appropriation, and from these facts determine the priority of right, as between the parties, as declared by section 3159 of the Revised Statutes of Idaho, 1887, to wit, as between appropriators the one first in time is the first in right.

(Syllabus by the court.)

APPEAL from District Court, Lemhi County.

Reversed and remanded. Three-fourths of the costs of this appeal is awarded to the appellant.

Miller & Terrell, for Appellant.

If the court fails to find on a material issue, judgment cannot be supported. (Traverso v. Tate, 82 Cal. 170, 22 P 1082; Swift v. Canavan, 52 Cal. 417-419; Billings v. Everett, 52 Cal. 664; Shaw v Wandesforde, 53 Cal. 300.) Findings outside the issues must be disregarded. (Green v. Chandler, 54 Cal 627, 628; Robinson v. Railroad Co., 57 Cal. 419; Morenhout v. Barron, 42 Cal. 605; Marks v. Sayward, 50 Cal. 59.) There being a specific finding of fact, and a general finding of fact inconsistent therewith, a judgment based on the general finding cannot stand. (Geer v. Sibley, 83 Cal. 1, 23 P. 220.) If findings are inconsistent, and cannot be harmonized, it is ground for reversal. (Manly v. Howlett, 55 Cal. 95; Harris v. Harris, 59 Cal. 622; Sloss v. Allman, 64 Cal. 47; 30 P. 574; Gillman v. Curtis, 66 Cal. 116, 4 P. 1094.)

Hawley & Reeves, for Respondents.

SULLIVAN, C. J. Huston, J., concurs. Morgan, J., took no part in the hearing or decision of this case.

OPINION

SULLIVAN, C. J.

This is an action brought to determine the right of appellant to the use of two hundred inches of the waters of Geertson creek situated in Lemhi county. The complaint alleges that the plaintiff is the owner and in the possession of over three hundred acres of land situated in said Lemhi county, and, for the purpose of irrigating said land, the plaintiff, during the spring of 1868, and while he was in the possession of said land, appropriated two hundred inches of the water of said Geertson creek; that said appropriation was the first made of the waters of said creek; that at frequent times during the three years prior to the commencement of this suit the defendants had, without plaintiff's consent, diverted the waters from said creek to such an extent as to wholly deprive plaintiff of the water so appropriated by him--and demands that defendants be restrained from in any manner interfering with plaintiff's right to the use of the water of said creek so claimed and diverted by him. Upon the application of Delos Simons, one of the original defendants, the court ordered James Beattie, John McGuigan, and the Wah Sing Mining Company to be brought in as parties defendant; and thereupon the plaintiff was permitted to and did file his supplemental complaint, alleging that said defendants Beattie, McGuigan, and the Wah Sing Mining Company had diverted a large amount of the water of said Geertson creek, without the consent of plaintiff, to his damage, and demanded that they be perpetually restrained from interfering with the rights of plaintiff to the use of said water. The defendants, except the Wah Sing Mining Company, answered, and by cross-complaint allege their right to the use of water from said creek under divers appropriations. The cause was tried to the court without a jury, and the court filed its decision in writing, and judgment was entered thereon. This appeal was taken from the judgment. The appellant specifies two errors, and demands that the case be reversed and remanded for a...