Glavin v. Salmon River Canal Co., Ltd.

• Decision Date: 28 July 1927
• Docket Number: 4545
• Citation: 44 Idaho 583,258 P. 532
• Parties: R. GLAVIN, Respondent, v. SALMON RIVER CANAL COMPANY, LTD., a Corporation, Appellant
• Court: Idaho Supreme Court

258 P. 532

44 Idaho 583

R. GLAVIN, Respondent, v. SALMON RIVER CANAL COMPANY, LTD., a Corporation, Appellant

No. 4545

Supreme Court of Idaho

July 28, 1927

WATER RIGHTS - REASONABLENESS OF USE - BENEFICIAL USE - PROPRIETOR'S RIGHT-BY-LAWS OF OPERATING COMPANY HELD ILLEGAL AND VOID.

1. Any property rights in water acquired by an appropriator must be considered and construed with reference to reasonableness of use to which water is applied or is to be applied.

2. Under C. S., sec. 5640, water user may not take more of water to which he is entitled than is necessary for beneficial use for which he has appropriated.

3. Extent of a proprietor's right to use water until his needs are supplied is dependent on his necessities, and ceases with them.

4. By-law of corporation operating water project in Salmon Carey Act Segregation, authorizing individual water user to carry over for personal storage such water as had been allotted but not used, subject to certain restrictions, held illegal as contrary to public policy requiring water users to take only such water as necessary for beneficial use for which it was appropriated.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. T. Bailey Lee, Judge.

Action to enjoin alleged illegal distribution of water. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent. Petition for rehearing denied.

James R. Bothwell, for Appellant.

The rule in question, "Rule 5" of appellant company, is not unreasonable in operation from the settler's standpoint. (State v. Twin Falls-Salmon River L. & W Co., 30 Idaho 41, 166 P. 220; Sanderson v. Salmon River Canal Co., Ltd., 34 Idaho 145, 199 P. 999; Glavin v. Salmon River Canal Co., Ltd., 39 Idaho 3 226 P. 739; Caldwell v. Twin Falls-Salmon River L. & W. Co., 225 F. 584; Twin Falls-Salmon River L. & W. Co. v. Caldwell, 242 F. 177; Twin Falls-Salmon River L. & W. Co. v. Alexander, 260 F. 270; Twin Falls-Salmon River L. & W. Co. v. Davis, 267 F. 382; Twin Falls-Salmon River L. & W. Co. v. Caldwell, 272 F. 356.)

The operation of the rule does not affect vested rights. (Twin Falls-Salmon River L. & W. Co. v. Caldwell, supra; Boley v. Twin Falls Canal Co., 37 Idaho 318, 217 P. 258; Sanderson v. Salmon River Canal Co., Ltd., 34 Idaho 303, 26 A. L. R. 292, 199 P. 999.)

There is no legal objection to the plan embodied in "Rule 5." (C. S. secs. 5569, 5624, 5625; Basinger v. Taylor, 36 Idaho 591, 211 P. 1085; State v. Twin Falls Canal Co., 21 Idaho 410, 121 P. 1039, L. R. A. 1916F, 236; State v. Twin Falls-Salmon River L. & W. Co., supra; Sanderson v. Salmon River Canal Co., Ltd., supra; Vinyard v. North Side Canal Co., 38 Idaho 73, 223 P. 1072; Coulson v. Aberdeen-Springfield Canal Co., 39 Idaho 320, 227 P. 29; Albrethsen v. Wood River Land Co., 40 Idaho 49, 231 P. 418.)

"Rule 5" promotes a higher efficiency in the use of water. (Van Camp v. Emery, 13 Idaho 202, 89 P. 752; Niday v. Barker, 16 Idaho 73, 101 P. 254; Farmers Co-op. Ditch Co. v. Riverside Irr. Dist., 16 Idaho 525, 102 P. 481; Stickney v. Hanrahan, 7 Idaho 424, 63 P. 189; Clark v. Hansen, 35 Idaho 449, 206 P. 808; C. S., sec. 8529.)

R. Glavin, pro se.

BRINCK, Commissioner. Varian, McNaughton, CC., Wm. E. Lee, C. J., Budge, and Taylor, JJ., concurring. Givens, J., dissents. T. Bailey Lee, J., disqualified.

OPINION

BRINCK, Commissioner.--

Plaintiff is the owner of land in the Salmon Carey Act Segregation, the defendant being the operating company for the project, which at the time this suit was commenced embraced some 35,000 acres of land, in connection with which project water rights existed. Plaintiff owns a water right for his land purchased from the Carey Act construction company, and is by virtue thereof a stockholder in the defendant corporation.

The duty of water on this project is fixed, according to a stipulation in the record, at two and one-third acre-feet per acre, and the water for the project, which is practically all storage, is usually insufficient to supply that amount. Indeed, it is stipulated that the average supply does not exceed 76 per cent of said amount, and a year in which a full supply has existed has more than once been followed by a year in which less than one-half of the required amount has been available. In 1919, a by-law hereinafter referred to as Rule 5 was adopted by the defendant company, providing in part as follows:

"In order to encourage the greatest practical economy by individual water users from year to year, each water user will be entitled to carry over for use the following season as individual or personal storage, such water as has been allotted to him but not used, subject, however, to the restrictions hereinafter set out. Water held as 'individual storage' shall become a part of 'general storage' in case maintenance charges become delinquent upon the shares for which water has been reserved. Each water user shall be considered as having used the minimum allotment, whether any water has been used or not."

Deliveries of water were made under the rule in 1920, 1921 and 1922. In the year 1923, some of the water users had left over from the preceding years, varying amounts of the so-called individual storage. According to the allegations of the complaint, of a total of some 36,000 acre-feet of water in the reservoir in December, 1922, about 16,000 acre-feet was so recognized by defendant as individual storage to the persons entitled thereto under the rule, notwithstanding the fact that the amount of water in the reservoir was entirely inadequate for proper irrigation of the lands within the project, even if distributed pro rata without reference to individual storage rights. If distributed under Rule 5, the lands not having individual storage would of course suffer still more. To enjoin distribution in accordance with Rule 5, this action is brought, the rule being alleged to be illegal and void and contrary to public policy. The trial court found facts to be as alleged, and, as a conclusion of law, found that Rule 5 was illegal and void; and by its decree enjoined distribution in accordance with said rule or on any other basis than on a pro rata acreage basis for all the water contained in the reservoir. From the decree the defendant appeals, the assignments of error in general attacking the conclusion of law above mentioned and the decree based thereon.

The provisions of Rule 5, in addition to those above quoted, are carefully worked out to protect, so far as possible, the rights of the owners of general storage against any encroachment upon the general storage by those claiming individual storage; deductions being provided from the individual storage for transportation, evaporation, and other losses. How definitely the natural losses properly chargeable to the individual storage can be determined, does not appear from the record. Apparently, however, a loss of from 30 to 33 per cent per year is thus deducted, so that owners carrying over individual storage for two years, as some have done, suffer upwards of 50 per cent natural losses in the amounts originally conserved by them. In addition, there is deducted and considered as general storage the minimum allotment fixed by the defendant's board of directors for each year, which minimum varies from year to year, being as high during one of the years involved as one acre-foot per acre.

The theory of the appellant is that this rule tends toward conservation of water, and gives the careful user an advantage, to which he is entitled, over the more prodigal user; that unless the rule is given effect, each water user will use all the water he is entitled to in any one year even though by conservation and careful handling, a portion of the water stored in a year of full supply might be saved for the following year, in which the supply will probably be scant; that unless any water user can himself have the benefit the following year of such conservation, there is no incentive to save the water, and he will use his whole allotment; and that, under the conditions obtaining in the project, it is highly desirable that as great an amount as possible be carried over. It is pointed out that some water users are willing to sacrifice some of their crops in one year with the expectation of raising more...