Hall v. Blackman

• Citation: 22 Idaho 539,126 P. 1045
• Parties: ADIN M. HALL, Appellant, v. WM. A. BLACKMAN, Respondent
• Decision Date: 27 September 1912
• Court: United States State Supreme Court of Idaho

126 P. 1045

22 Idaho 539

ADIN M. HALL, Appellant, v. WM. A. BLACKMAN, Respondent

Supreme Court of Idaho

September 27, 1912

WATER RIGHTS-POINT OF DIVERSION-CHANGE OF.

(Syllabus by the court.)

1. Where E. & E. appropriated 480 inches of water of a certain creek and diverted the same from the creek in 1872, and applied the same to their lands, and thereafter, in 1876 constructed another ditch lower down the creek for the purpose of diverting a part of their appropriation from said creek, and did so divert after 1876, and thereafter, in 1879 H. made an appropriation of water from said creek and diverted it below E. & E.'s 1876 diversion, and thereafter E. & E. sold their land and water rights to other persons, among them B., and B. thereafter conducted about half of the water awarded to him through said ditch of 1876 and about half through a ditch constructed in 1886, and thereafter, in 1899, an action was brought to determine the priorities and amounts of said and other users of water from said creek, and the priorities and amounts were determined by the decree in said action, B. being given a priority as of 1872 for 238 inches, and H. a priority as of 1879 for 150 inches, and B. continued to divert about one-half of said 238 inches through his 1876 ditch, held, that H. is not entitled to an injunction restraining B. from so diverting his water.

2. As. B. and his predecessors in interest had been conducting water through said 1876 ditch three years prior to the appropriation of water made by H. in 1879, to permit B. to continue to divert his water through said 1876 ditch would not be an injury to the subsequent appropriator H.

APPEAL from the District Court of the Fourth Judicial District for Elmore County. Hon. Edward A. Walters, Judge.

Action to enjoin an appropriator of water from diverting it from a particular point in the stream. Injunction denied and judgment in favor of the defendant. Affirmed.

Judgment of the trial court affirmed, with costs in favor of the respondent.

E. M. Wolfe, for Appellant.

L. B. Green and Wyman & Wyman, for Respondent.

Counsel cite no authorities on points decided.

SULLIVAN, J. Stewart, C. J., and Ailshie, J., concur.

OPINION

SULLIVAN, J.

This action was brought to enjoin the respondent from an alleged change in the point of diversion of certain waters decreed to the respondent by the district court of Elmore county, dated May 15, 1902. That action was brought in 1899 by Hall, the appellant in this case, and one Wilson, against the respondent and a number of others, to determine the amounts and priorities of the various claimants of water from Bennett creek, which case, or some parts of it, has been appealed to this court several times. (See Hall v. Blackman, 8 Idaho 272, 68 P. 19, 9 Idaho 555, 75 P. 608.)

The judgment in this case was entered in favor of the defendant Blackman and this appeal is from that judgment.

The lands owned by the respondent and his neighbor Wilson succeeded to them through the Ethel brothers. The Ethel brothers located said lands and appropriated water therefor in 1872, and the title to said lands was thereafter procured from the government. The Ethels diverted 480 inches of water from said Bennett creek just above their ranch, which was conveyed to the ranch through a ditch known as the "1872 ditch." In 1876 they constructed another ditch known as the "1876 ditch." The Ethel brothers held said lands and water rights in common and increased the acreage under cultivation from year to year until 1885, when they divided up their lands and water right between them. The 1876 ditch covered the lands east of a slough running through said lands, and the 1872 ditch was intended to cover the lands lying west of the slough. After the Ethels had divided their holdings, Dave Ethel, in 1886, in connection with his brother George and one Cy. Doom, constructed another ditch, taking it out of said creek at or close to the head of the 1872 ditch, through which George Ethel and Cy. Doom appropriated 114 inches of water. It was apparently a high-line ditch, or at least was intended to cover more land than did the 1872 ditch. In 1879 the appellant appropriated 150 inches of water, which he took out of said creek at a point below the said land of the respondent.

In the final determination of the action above referred to to determine the amounts and priorities of the several claimants to water from said creek, the appellant Hall was awarded 150 inches of the water of said creek as of April 1, 1879. His coplaintiff, Wilson, was awarded 143 inches of water as of ...