Gerber v. Nampa & Meridian Irr. Dist.

• Decision Date: 10 May 1911
• Parties: JOHN L. GERBER, Respondent, v. NAMPA & MERIDIAN IRRIGATION DISTRICT, a Corporation, Appellant
• Court: Idaho Supreme Court

116 P. 104

19 Idaho 765

JOHN L. GERBER, Respondent, v. NAMPA & MERIDIAN IRRIGATION DISTRICT, a Corporation, Appellant

Supreme Court of Idaho

May 10, 1911

WATERS AND WATERCOURSES-CANAL COMPANIES-PRIORITIES AMONG CONSUMERS-MANDAMUS TO COMPEL DELIVERY-FORM OF JUDGMENT.

(Syllabus by the court.)

1. A decision of the supreme court on appeal establishes the law of the case for the guidance of the trial court, and for the purposes of a subsequent appeal.

2. There is a priority among consumers from a canal analogous to that which exists among appropriators from a natural stream and the rights of later applicants for water are subordinate to those of prior consumers, which, when exercised in full exhaust the carrying capacity of the canal.

3. Evidence showing the use of drain or waste water, or water primarily belonging to a prior consumer under a canal system does not establish a dedication of water direct from the canal to the lands of such user.

4. Evidence showing the delivery of water directly from a canal for the express purpose of irrigating a certain tract of land establishes a prima facie dedication of water to such tract.

5. Evidence showing the capacity of a canal, the loss by seepage and evaporation, and the acreage irrigated therefrom, is insufficient to show whether or not the waters of the canal have been fully dedicated, in the absence of any proof of the duty of water, or of the aggregate number of inches of water to which consumers who have acquired a prior right are entitled.

6. Where the evidence shows the average duty of water under a canal to be five-sevenths of an inch to the acre, a judgment awarding over seven-eighths of an inch is erroneous, in the absence of any testimony establishing a lower duty of water on that particular tract.

7. Where on an application for a writ of mandate to compel the delivery of water the evidence establishes a dedication inferior to that of prior consumers, a judgment awarding the plaintiff the same right as prior consumers is erroneous, and should be modified so as to make such right subordinate to that of the prior consumers.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Ed. L. Bryan, Judge of the Seventh Judicial District, presiding.

Application for writ of mandate to compel the delivery of water to plaintiff. Judgment for plaintiff and defendant appeals. Reversed.

Modified and reversed, with instructions.

McElroy & Winstead, for Appellant.

Where waste water is furnished by a canal company to an applicant under a sale and rental thereof, "the same becomes a dedication only of such waste water; and the user thereof can only maintain an action against the canal company compelling the company to furnish the user with such waste water, if any, and cannot compel the canal company to furnish a perpetual supply of water such as is required to be furnished to an original appropriator." (Gerber v. Nampa & Meridian Irr. Dist., 16 Idaho 1, 100 P. 80.)

"If water has been received under a sale or rental and applied to a beneficial use upon land, then such water is dedicated to such use; and when such user applies to the court to compel the canal company to furnish such water, he makes a prima facie case by showing the previous use," etc. (Gerber v. Nampa & Meridian Irr. Dist., supra.)

Richards & Haga, for Respondent.

This court has defined what a dedication of such water is in the case of Wilterding v. Green, 4 Idaho 786, 45 P. 773. See, also, Bardsley v. Boise Irr. etc. Co., 8 Idaho 160, 67 P. 428, and this case on former decision, 16 Idaho 1, 100 P. 80.

The appellant failing to produce the stronger evidence, that is, the dimensions and grade of its canal, and the number of consumers, and the dates their respective rights accrued, from which the court could have determined the capacity of such canal and the priority of such rights, lays the appellant open to the suspicion that the stronger evidence would have been to his prejudice. (Clifton v. U.S. 45 U.S. 244, 11 L.Ed. 957; Runkle v. Burnham, 153 U.S. 223, 14 S.Ct. 837, 38 L.Ed. 697; Spaulding v. Coeur d'Alene Ry. Co., 5 Idaho 533, 51 P. 408; 5 Ency. Law, 41, note 2, and cases cited.)

MACLANE, District Judge, AILSHIE, Presiding J. Ailshie, Presiding J., and Sullivan, J., concur.

OPINION

MACLANE, District Judge.

This is an application for a writ of mandate to compel the defendant, an irrigation district, to supply plaintiff with water, a right to which he claims to have established by payment of rentals and actual use on his land during the years 1904, 1905 and 1906.

The case has been here before and is reported in 16 Idaho 1, 22, 100 P. 80, 88. The facts are fully stated in that opinion and the law applicable to those facts is established conclusively for the purposes of this case, at least. The case was there remanded for a new trial, and the only question which arises now is whether or not the trial court followed the law announced in the prior decision of this court as applied to the evidence adduced on such new trial. The testimony taken on the first trial was resubmitted by stipulation and additional evidence was also introduced.

A resume of sufficient facts to make this opinion intelligible is as follows:

The plaintiff is the owner of land within the exterior limits of the defendant district, which purchased from the Boise City Irrigation & Land Company a canal locally known as the Ridenbaugh canal. During 1904, 1905 and 1906, the predecessor in interest to the plaintiff, one G. T. Kinzer, took water for the land now owned by the plaintiff, from two taps of the Ridenbaugh canal, designated in the evidence as Nos. 75 and 77. The water taken from tap 77 was applied directly to this land from the canal, but at tap 75 the water was carried from the tap through a lateral belonging to the Wilson Fruit Company and was emptied from a flume on this lateral into a ditch known as the Wilson drain, constructed for the purpose of carrying away the waste water from the Wilson orchard and other lands. It is undisputed that the only water used by Mr. Kinzer on the land in question during 1904 was waste water from the Wilson orchard, and he paid rental for it as such. Whether or not he received any "live water," that is, water not previously devoted to the use of some other tract, in 1905 and 1906, is a matter of dispute between the parties. It is conceded that he paid rental for water during those years. There is also a dispute between counsel as to whether or not, conceding that Mr. Kinzer received live water during 1905 and 1906 through tap 77, there was any water which had not been already dedicated to other users.

On these facts this court, on the former appeal, held that the provision of art. 15, sec. 4, of the constitution, that a sale, rental or distribution of water, when once made, shall be deemed an exclusive dedication of the water to the use for which it is made, does not create a perpetual water right from a temporary delivery of water, belonging to prior consumers from the same canal whose rights exhausted the carrying capacity of the canal, at times when such prior consumers did not require the full amount of water to which they were entitled; that the dedication of water to a beneficial use, under this section of the constitution, does not extend beyond the character of the water so dedicated, and where all the waters have been appropriated and applied to a beneficial use but are furnished under a sale or rental to a subsequent applicant, the dedication to the latter extends only to the right to use the water when not required or needed by the prior appropriators; that where waste water only is furnished, it is a dedication only of such waste water, and the user can only maintain an action to compel the canal company to furnish him with such waste water, and cannot compel it to furnish a perpetual supply of water such as is required to be furnished to an original appropriator.

It was further held that on an application for a writ of mandate to compel a canal company to furnish an applicant with water, the burden is upon him to show that there is unappropriated water in the canal, unless he has previously used water from the canal under sale or rental, in which event the burden is on the company to show why it has since cut off the water and refused to furnish the same.

As we read this decision, it construes sections 4 and 5 of article 15 of the constitution as creating a priority among consumers from a canal analogous to that which exists among appropriators from a natural stream. Section 5 provides, in part, that "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." After quoting this section, we said (p. 25):

"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...