Gerber v. Nampa & Meridian Irrigation District
| Decision Date | 25 February 1909 |
| Citation | 16 Idaho 22,100 P. 80 |
| Parties | JOHN L. GERBER, Respondent, v. NAMPA & MERIDIAN IRRIGATION DISTRICT, Appellant |
| Court | Idaho Supreme Court |
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Judgment reversed and a new trial ordered. Costs awarded to appellant.
A rehearing was granted in this case and the cause was again argued exhaustively, and the court has again made a thorough examination of the case as presented by the record. Upon the rehearing it is strenuously contended by counsel for respondent that this court erred in announcing as a rule of evidence: "It is necessary in this case for the respondent in this case to show the appellant has a surplus of water running in said canal over and above that to which prior users are entitled, before he can recover in this action." While this rule is correct, as applied to certain facts, we have deemed it proper to clearly draw the distinction between the cases to which this rule is applicable, and cases falling under the reverse of the rule.
The evidence clearly establishes the fact that the lands of respondent were irrigated prior to 1907 with water for which the appellant and its predecessor in interest charged an annual rental therefor. The court found, Finding 18:
"That at no time prior to the date the said defendant purchased and took possession of said canal system, (Jan. 1st, 1906), or at any time since such date, has the full capacity of said canal system or all of the water carried by such system, been applied to a beneficial use by users of water prior to the said plaintiff."
This finding presents the most important question involved in this controversy, and that is, whether the water with which the respondent's land was irrigated, prior to 1907, and for which appellant and its predecessor in interest charged an annual rental, was water flowing in the canal system of the appellant which had not previously been appropriated by other users; or whether the water, with which respondent's land was irrigated, was surplus water supplied to respondent and his predecessor in interest at times when the prior appropriators thereof were not in need and not using, and if the latter, what is the extent of the respondent's right by such use or the dedication made by his use of such water.
Under art. 15, sec. 4, of the constitution, "Whenever any waters have been, or shall be, appropriated or used for agricultural purposes, under a sale, rental, or distribution thereof, such sale, rental or distribution shall be deemed an exclusive dedication to such use; and whenever such waters so dedicated shall have once been sold, rented or distributed to any person who has settled upon or improved land for agricultural purposes with the view of receiving the benefit of such water under such dedication, such person, his heirs, executors, administrators, successors, or assigns, shall not thereafter, without his consent, be deprived of the annual use of the same when needed for domestic purposes, or to irrigate the land so settled upon or improved, upon payment therefor, and compliance with such equitable terms and conditions as to the quantity used and times of use, as may be prescribed by law."
This section of the constitution deals with unappropriated and undedicated water. It does not apply and is not intended that water, which is temporarily being used, shall thereby be dedicated to a perpetual use to the exclusion of those who are entitled to the same by a prior right. This section of the constitution must necessarily be construed in connection with the provisions of sec. 5 of the same article, which provides:
"Whenever more than one person has settled upon, or improved land with the view of receiving water for agricultural purposes, under a sale, rental, or distribution thereof, as in the last preceding section of this article, provided, as among such persons priority in time shall give superiority of right to the use of such water in the numerical order of such settlements or improvements; but whenever the supply of such water shall not be sufficient to meet the demands of all those desiring to use the same, such priority of right shall be subject to such reasonable limitations as to the quantity of water used and times of use as the legislature, having due regard both to such priority of right and the necessities of those subsequent in time of settlement or improvements, may by law prescribe."
Thus it will be seen when these two sections are construed together, that while the application and use of water under a sale, rental and distribution thereof is deemed an exclusive dedication to such use, yet such dedication cannot extend beyond the character of the water thus dedicated; that is, where all the water of a canal has been appropriated and applied to a beneficial use under a sale or rental, and when not needed by such appropriators, is furnished under a sale and rental to a subsequent applicant and is used by such applicant for a beneficial use, the dedication extends only to the right to use such water when not required and needed by such prior appropriators. The rights of the prior appropriator must at all times be recognized; and in an action to compel the owners of a canal to furnish water to such subsequent applicant, the canal company can only be compelled to furnish the water so dedicated by such applicant, that is, the waters applied to a beneficial use by him when not needed by the prior appropriators thereof.
We do not understand that where all of the water flowing in a canal has been appropriated, but at times when such appropriators are not using all of such water, the same is furnished by the canal company, temporarily, to an applicant therefor, that such applicant thereby secures a perpetual right to use such water as against the prior appropriators thereof, and that the canal company can be compelled to supply such applicant with such water when demanded by the prior appropriators. It is the policy of the law to prevent waste of water, and when prior appropriators in a canal are not using all of the water to which they are entitled, the canal company may supply such water to any other applicant therefor, but by so doing such applicant does not become vested with a right superior to that of the prior appropriators. (Van Camp v. Emery, 13 Idaho 202, 89 P. 752.) His right is measured by the character of the water supplied him. In other words, if the water supplied him was merely for a temporary use, when not required and needed by prior appropriators, his right extends only to the temporary use when such prior appropriators are not in need of the same, and it is to this extent, and to this only, that a dedication of such water takes place under the constitution. When such water is demanded and required by prior appropriators, the constitutional rights of the subsequent user are not interfered with by taking the water from him and giving the same to the prior appropriator. If, then, Finding No. 18, supra, is supported by the evidence, that there was water flowing in the appellant's canal unappropriated at the time respondent made demand therefor in May 1907, upon the respondent offering to pay the price demanded by the irrigation district, or securing the same, and complying with all reasonable rules and regulations of the district, the respondent was entitled to the water demanded, and could apply to the courts for a writ of mandate to require the appellant to furnish such water.
This brings us to a consideration of the rule of evidence announced in the former opinion and referred to in this opinion at its opening, and that is, upon whom does the burden of proof rest where it is sought by a water user to compel a canal company to furnish water for his use? If the application for water be for...
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