Gilbert v. Smith

• Decision Date: 05 August 1976
• Docket Number: No. 11949,11949
• Citation: 552 P.2d 1220,97 Idaho 735
• Parties: Don W. GILBERT et al., Plaintiffs-Appellants, v. Merlin SMITH and Earlene Smith, husband and wife, and all other persons claiming an adverse interest to the water rights of Beaver Dam Creek, Densmore Creek and Birch Creek, tributaries of the Bear River, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 1220

552 P.2d 1220

97 Idaho 735

Don W. GILBERT et al., Plaintiffs-Appellants, v. Merlin SMITH and Earlene Smith, husband and wife, and all other persons claiming an adverse interest to the water rights of Beaver Dam Creek, Densmore Creek and Birch Creek, tributaries of the Bear River, Defendants-Respondents.

No. 11949.

Supreme Court of Idaho.

Aug. 5, 1976.

Gus Carr Anderson, Pocatello, for plaintiffs-appellants.

L. Lamont Jones, Pocatello, for defendants-respondents.

SHEPARD, Justice.

This is an appeal from a declaratory judgment involving the water rights on three streams within Township 11 South, Ranges 39 and 40 E.B.M. in Caribou County, Idaho. Involved are the waters of Birch Creek and Densmore Creek which, according to the testimony on behalf of all parties, are tributaries of and flow into Beaver Dam Creek which in turn is a tributary of Bear River. ¹ All parties to this action are owners or contract lessees of water rights in these interrelated waterways.

The rights to use of all waters from the three named streams were, among others, judicially determined in the case of Utah Power & Light Co. v. Last Chance Canal Co. (unreported, U. S. Dist. Court, E.D. Idaho) and set forth in the decree of the federal district judge, July 14, 1920 (hereinafter the Dietrich Decree). In that decree, William and Dora Larkin were awarded a priority right to specific measurements of water from each of the three creeks dated May 1, 1882, and George and Mary Smith received a priority right from Densmore and Birch Creeks with a priority date of 1900. The appellants in this action are the successors in interest to the Smiths' water rights and the respondents are successors to the Larkins' water rights. Appellants thereby possess adjudicated water rights which are junior to the respondent on Densmore and Birch Creeks and appellants possess no adjudicated rights on Beaver Dam Creek.

Respondents are downstream users and divert their water from Beaver Dam Creek, some one-half mile below its confluence with Densmore and Birch Creeks. Those same circumstances existed at the time of the 1920 Dietrich Decree. Between the point of confluence of the three creeks and the point of respondents' diversion, are a number of beaver dams and sump holes or sinks. Historically, those obstacles have caused losses of water and difficulty in obtaining water to satisfy the water rights of the respondents and their predecessors.

Between 1970 and 1973, appellant Gilbert gained possession of his property, increased the previous diversion for that property from Densmore and Birch Creeks and thereby increased the irrigated acreage of his land by some 60-80 acres. In 1973, the respondents desired to increase the water flow to their lands and completed a construction of a pipeline circumventing and avoiding the sump holes and beaver dams.

There is no claim herein to the water of Beaver Dam Creek. Rather, the substance of appellants' claim is that since the time of the 1920 decree the appellants and their predecessors have diverted water from Densmore and Birch Creeks in excess of their decreed rights, have applied the same to beneficial use and are therefore entitled to such waters on the alternative grounds of abandonment and adverse possession. Following a court trial, appellants' claim was rejected and the court entered the following pertinent findings:

'9. That none of the parties offered any proof as to the measurement of the waters used by each of them respectively in any of the years in dispute.

10. That plaintiffs failed to prove use of the waters of Densmore Creek and Birch Creek in excess of their decreed right and plaintiffs failed to prove use of any of the waters of Beaver Dam Creek.

11. That plaintiffs failed to prove continuing, uninterrupted, open or adverse appropriation or use of any of the defendants' decreed waters of densmore (sic) and Birch Creek.

12. That any use of plaintiffs of the decreed waters of defendants or their predecessors in Densmore Creek and Birch Creek was with the permission and consent of defendants or their predecessors in interest.'

The court concluded that all rights as established by the Dietrich Decree should be reaffirmed and enjoined all the parties from interfering with those established rights. This appeal was brought on the basis that the judgment is not supported by the evidence.

The essential issues of this appeal have been argued to this Court in the context of the distinct doctrines of abandonment and adverse possession. While we think these issues do in fact arise in this dispute, we are also of the opinion in reviewing the arguments of the parties in light of the applicable law that an additional legal concept is presented by this appeal which necessitates independent consideration. Some confusion has resulted in this case due to misunderstandings of the exact elements of abandonment as they have been, and are intended to be, applied to water rights disputes. This confusion is largely understandable given the state of the case law in this jurisdiction. Although framed in the language of abandonment, appellants' principle argument in this appeal concerns not only the doctrine of abandonment but likewise the question of statutory forfeiture. This doctrine, although similar to abandonment, involves characteristics of significant difference which must be borne in mind in resolving this and similar disputes addressing the relinquishment of decreed water rights.

Abandonment is a common law concept involving the concurrence of an intention to abandon and the actual relinquishment or surrender of the water right. 93 C.J.S. Waters § 193, at 994; Wiel, 1 Water Rights in the Western States, § 567 (1911). It is not dependent necessarily upon length of time but upon the essential element of intent. Carrington v. Crandall, 65 Idaho 525, 147 P.2d 1009 (1944); Union Grain & Elevator Co. v. McCammon Ditch Co., 41 Idaho 216, 240 P. 443 (1925); St. John Irr. Co. v. Danforth, 50 Idaho 513, 298 P. 365 (1931); Chill v. Jarvis, 50 Idaho 531, 298 P. 373 (1931); Smith Land Co. v. Furhiman, D.C.Idaho, 36 F.Supp. 667 (1941). Such intent may be evidenced by non-use for a substantial period of time but mere non-use is not per se abandonment. Wiel, supra, § 569. In contrast, the doctrine of forfeiture is predicated upon a statutory declaration that all rights to use water may be lost where an appropriator fails to make beneficial use of the water for a statutory period regardless of the intent of the appropriator. 93 C.J.S. Waters § 193; Wiel, supra, § 574; East Side Canal & Irr. Co. v. U. S., 76 F.Supp. 836, 839, 111 Ct.Cl. 124 (1948); Hammond v. Johnson, 94 Utah 20, 66 P.2d 894, 899 (1937). In Idaho this concept is set forth in I.C. § 42-222(2). The effect of that provision is that an appropriator who fails to apply his water right to a beneficial use for a continuous five year period is regarded as having lost all rights to the use of such water. ² Although the terms abandonment and forfeiture have often been used by this Court interchangeably see, Hodges v. Trail Creek Irrigation Co., 78 Idaho 10, 297 P.2d 524 (1956); In re Boyer, 73 Idaho 152, 248 P.2d 540 (1952); Wagoner v. Jeffery, 66 Idaho 455, 162 P.2d 400 (1945); Graham v. Leek, 65 Idaho 279, 144 P.2d 475 (1943); Zezi v. Lightfoot, 57 Idaho 707, 68 P.2d 50 (1937), the case of Carrington v. Crandall, supra, 65 Idaho at 532, 147 P.2d 1009, makes it clear that they are distinct legal concepts and should be considered as such. We recognize that this Court has in the past failed to indicate this difference in addressing cases involving water rights disputes. Nevertheless, we deem it essential for this and other future cases of a similar nature to keep the concepts of abandonment and statutory forfeiture, and their application, distinct.

It is established that a water right in Idaho, although affirmed by a court decree, may be abandoned and subject to subsequent appropriation. I.C. § 42-222(2); Graham v. Leek, supra, 65 Idaho at 287, 144 P.2d 475; Chill v. Jarvis, supra; Albrethsen v. Wood River Land Co., 40 Idaho 49, 59, 231 P. 418 (1924). One who seeks to alter decreed water priorities has the burden to demonstrate the elements of abandonment by clear and convincing evidence. Carrington v. Crandall, supra, 65 Idaho at 531, 147 P.2d 1009.

It is appellants' position that for the period of 53 years, from the time of the Dietrich Decree until the bypass pipeline was installed, the respondents and their predecessors were unable to utilize the waters of Densmore and Birch Creeks. They assert that those waters would have been wasted had not the appellants and their predecessors diverted the water and applied it to beneficial use. It is thereby argued that because of their inability to utilize the water respondents effectively abandoned their rights and caused them to revert to the state. The implication is that respondents' failure to remedy the cause of the wasting is evidence of an intent to relinquish any right in the water. Cf. Cantlin v. Carter, 88 Idaho 179, 187, 397 P.2d 761 (1964). Consequently, it is submitted that the diversion and use of the entire flow of Densmore and Birch Creeks by appellants and their predecessors constituted a new, lawful and superior appropriation of the rights.

As a rule, the law of water rights in this state embodies a policy against the waste of irrigation water. Ward v. Kidd, 87 Idaho 216, 392 P.2d 183 (1964). Such policy is not to be construed, however, so as to permit an upstream junior appropriator to interfere with the water right of a downstream senior appropriator so long as the water flowing in its natural channels would reach the point of downstream diversion. Martiny v. Wells, 91 Idaho 215, 219, 419 P.2d 470 (1966). We agree that if due to seepage, evaporation, channel absorption or other conditions beyond the control of the appropriators the water in the stream will not reach the point of the prior...