Graham v. Leek

• Decision Date: 09 December 1943
• Docket Number: 7113
• Parties: CHARLES E. GRAHAM, Respondent, v. W. W. LEEK, Appellant
• Court: Idaho Supreme Court

144 P.2d 475

65 Idaho 279

CHARLES E. GRAHAM, Respondent, v. W. W. LEEK, Appellant

No. 7113

Supreme Court of Idaho

December 9, 1943

Rehearing denied January 24, 1944.

1. Waters and water courses

A water right that has once been decreed for a tract of land may be abandoned. (I.C.A., secs. 41-214, 41-216, 41-507.)

2. Waters and water courses

Under statute providing that water rights shall be lost and abandoned by failure for term of five years to apply them to beneficial use for which they were appropriated, a decreed right is not immune from a showing that it has been abandoned, and such showing does not impeach the decree upon which such right was based, where evidence received with reference to the abandonment relates to a time subsequent to the decree. (I.C.A., sec. 41-216.)

3. Waters and water courses

The right to use of public water of state can only be claimed where it is applied to a beneficial use in the manner required by law.

4. Waters and water courses

The statute providing that water rights shall be lost and abandoned by a failure for term of five years to apply them to beneficial use for which they were appropriated applies equally to rights based upon a decree with that of rights based upon an appropriation and actual use. (I.C.A., sec 41-216.)

5. Waters and water courses

Abandonments and forfeitures of water rights are not favored. (I.C.A sec. 41-216.)

6. Waters and water courses

Under statute, where right to use of water has been lost by failure over a term of five years to apply it to the beneficial use for which it was appropriated, the right to such use reverts to the state and is again subject to appropriation. (I.C.A sec. 41-216.)

7. Appeal and error

Where trial court, sitting as a court of equity, makes findings of fact based upon conflicting evidence, and there is evidence to support both theories, and from which reasonable men might draw different conclusions, such findings of fact will not be disturbed on appeal.

8. Waters and water courses

Owner of water right has statutory right to change his point of diversion provided that in so doing, rights of others are not injured, and such change does not work a "forfeiture" and is not an "abandonment" of such right. (I.C.A., secs. 41-108, 41-216.)

9. Trial

Where a credible witness, with apparently adequate opportunity for observation, testifies to an occurrence, mere testimony of other witnesses that they were not cognizant of the occurrence, where opportunities of latter witnesses for observation are not stated, or where it affirmatively appears that their situation was such that they probably would not have observed the event if it had occurred, or where their opportunities were not coextensive with those of witness who testifies positively to the occurrence, is not sufficient to create a conflict in the testimony.

10. Waters and water courses

Evidence supported finding that defendant's claimed water rights for irrigation of certain tract owned by him by virtue of decree and an order transferring place of use of water decreed had been abandoned or forfeited by nonuse for five years. (I.C.A., sec. 41-216.)

11. Evidence

In suit for determination of adverse claims to right of use of irrigation water, where witness who had served as county assessor for 23 years produced his records showing assessment of defendant's property as dry land for a certain period and testified that assessment record was made by him after an examination of the land, admission of assessor's record was not error.

12. Waters and water courses

Where defendant, in his cross-complaint, claimed a water right in creek with a priority of May 17, 1907, for irrigation of 320 acre tract by virtue of a license issued by state to former owner of property, which was superior to plaintiff's right, burden was upon defendant of proving such right.

13. Appeal and error

Failure to make a finding that defendant had a water right in creek with a priority of May 17, 1907, for irrigation of 320 acre tract by virtue of water license issued by state to former owner of his property which was superior to plaintiff's right, even if error, was not prejudicial, where defendant would not have been entitled to prevail even if such finding had been made inasmuch as his right had been abandoned by nonuse for five years. (I.C.A., sec. 41-216.)

14. Waters and water courses

Evidence supported finding that defendant failed to establish a water right in creek with a priority of May 17, 1907, for irrigation of 320 acre tract by virtue of a water license issued by state to former owner of property which was superior to plaintiff's right.

15. Waters and water courses

A decree of a definite water right cannot stand where evidence fails to disclose the amount of water ever at any time diverted and amount required for beneficial use to which it is put.

16. Waters and water courses

Decree awarding plaintiff right to use of 160 inches of water of creek, diverted through a ditch and at a point designed in the decree, was not supported by the evidence, where there was no proof of beneficial use of any definitely ascertained quantity of water.

17. Waters and water courses

The amount of water that a water user has been in the habit of using and applying to his land cannot be accepted as true test of duty of the water, but question to be determined in such case is amount actually necessary for beneficial purpose to which the water is to be applied.

18. Waters and water courses

In determining the duty of water, reference should be had to lands that have been prepared and reduced to a reasonably good condition for irrigation.

Rehearing Denied January 24, 1944.

Appeal from the District Court of the Fourth Judicial District, for Camas County. Hon. J. L. Downing, Presiding Judge. Suit for the determination of adverse claims to right of use of irrigation water. From a judgment in favor of plaintiff, defendant appeals. Affirmed in part. Reversed in part and remanded with instructions.

Edwin Snow, James and James, and Charles Scoggin for appellant.

The decree of a water right to the Lenman tract of appellant's land is presumed to remain in effect. The water license issued by the state engineer of Idaho for the Thorp tract is prima facie evidence of a water right therefor of the indicated extent and priority. (Sec. 41-507, I.C.A.; sec. 41-214, I.C.A.; Lower Latham Ditch Co. v. Bijou Irr. Co. (Colo.), 41 Colo. 212, 93 P. 483; Bamforth v. Ihmsen (Wyo.), 28 Wyo. 282, 204 P. 345, 356; Basinger v. Taylor, 30 Ida. 289, 298, 164 P. 522; Basinger v. Taylor, 36 Ida. 591, at 597-8, 211 P. 1085; State v. Adams, 22 Ida. 485, 126 P. 401.).

A downstream appropriator can acquire a prescriptive right against an upstream prior appropriator only by continuous and uninterrupted prevention of the diversion above. Nothing of the sort is shown in this case. (Hall v. Blackman, 8 Ida. 272, 68 P. 19; Brossard v. Morgan, 7 Ida. 215, 61 P. 1031; Pence v. Shivers, 40 Ida. 181, 232 P. 568; Village of Fairfield v. Franklin, etc. Irr. Dist., 59 Ida. 7.).

The decree to respondent of a definite water right cannot stand where the evidence utterly fails to disclose the amount of water ever at any time diverted and the amount required for the beneficial use to which it is put. (Farmers, etc. Company v. Riverside Irr. Co. 16 Ida 525, 102 P. 481 (7); Pabst v. Finmand (Calif.), 211 P. 11 (8); Logan v. Guichard (Calif.), 14 P. 989 (2); Reno v. Richards, 32 Ida. 1 at p. 15, 178 P. 81.).

Bissell and Bird for respondent.

A decreed water right may be lost by five years nonuser. (Sec. 41-216, I.C.A.; Albrethsen v. Wood River Land Co., 40 Ida. 49, 231 P. 418; Chill v. Jarvis, 50 Ida. 531, 298 P. 373.).

A decree allocating water of a stream is only binding on the parties thereto, or their privies. (Stocker v. Kirtley, 6 Ida. 795, 59 P. 841; Lambrix v. Frazier, 31 Ida. 382, 171 P. 1134.).

A water right acquired by appropriation and use after abandonment of a decreed right is a new appropriation. (Chill v. Jarvis, 50 Ida. 531, 298 P. 373.).

The certificate of transfer is void for the reason that there was not a substantial compliance with sec. 41-216, I.C.A. (Washington State Sugar Co. v. Lordrich, 27 Ida. 26, 147 P. 1073.).

A water license, or permit is only prima facie evidence of a water right. (Baysinger v. Taylor, 30 Ida. 289, 164 P. 522; Baysinger v. Taylor, 36 Ida. 591, 211 P. 1085; Rabedo v. Furey, 33 Ida. 56, 190 P. 73.).

DUNLAP, J. Holden, C.J., Ailshie, Budge and Givens, JJ., concur.

OPINION

DUNLAP, J.

As appears from the pleadings, this suit involves a conflict between respondent and appellant over the right to the use of the public waters of Three Mile Creek in Camas County, Idaho, a tributary of Upper Malad River. This creek is also known as Four Mile Creek. However, as appears by the evidence the waters actually involved in the conflict are from the flow of the East Fork or Branch of said Three Mile Creek.

The amount of the flow of the creek is not disclosed by the pleadings or the evidence, but it does appear it is what is known as a "flash" creek, with its run-off from the melting snows in the spring of the year; that the irrigation season is from two to four or five weeks in each year, and that after July 1st there is very little water, if any, for irrigation purposes.

In the first cause of his cross-complaint; appellant claims 3.2 cubic feet per second of time of the water from said Three Mile Creek for the irrigation of certain land owned by him containing 160 acres and referred to in the evidence as the Lenman Tract of land (also referred to as the Lemman and Lemnan Tract), with a priority of April 1, 1907, based upon a decree by the District Court of the Fourth...