Hall v. Blackman

• Decision Date: 28 September 1912
• Parties: ADIN M. HALL, Respondent, v. WILLIAM H. BLACKMAN, Appellant
• Court: Idaho Supreme Court

126 P. 1047

22 Idaho 556

ADIN M. HALL, Respondent, v. WILLIAM H. BLACKMAN, Appellant

Supreme Court of Idaho

September 28, 1912

WATER RIGHTS-CHANGE OF PLACE OF USE-CHANGE THAT INJURES ANOTHER APPROPRIATOR.

(Syllabus by the court.)

1. Where B. had certain water rights decreed to a specific tract of land, and H., a subsequent appropriator lower down the stream, had certain subsequent rights decreed to him, B. will not be permitted to thereafter carry a part of his appropriation beyond the lands formerly irrigated, and irrigate other and additional new lands, where in so doing he deprives H. of the benefit of the use of the seepage, waste and percolating waters which he formerly received from the use of the waters on the tract of land to which they were decreed.

2. A change of the place of use of the waters will not be permitted where to do so will damage another appropriator.

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

Action to enjoin the defendant from applying a part of his water appropriation to land other than that to which it had formerly been applied. Judgment for the plaintiff and defendant appealed. Affirmed.

Judgment of the trial court affirmed. Costs awarded in favor of respondent.

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

E. M Wolfe, for Respondent.

Counsel cite no authorities on points decided.

AILSHIE, J. Stewart, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

This is an appeal from a decree perpetually enjoining the appellant "from changing the place of the beneficial use of the water appropriated by him as shown by the findings, so as to cover or to apply the same upon the lands known as the Armitage Ranch, or to so use or divert the same that the surplus may not return again to Bennett creek after beneficial use thereof, at a point above the intake of plaintiff's ditches."

In an action brought by respondent herein against the appellant in 1899, a decree was entered and subsequently affirmed by this court (Hall v. Blackman, 8 Idaho 272, 68 P. 19) establishing the rights of the respective parties to the waters of Bennett creek in Elmore county, and decreeing the respective appropriations for certain tracts of land owned by these parties. Under that decree the appellant herein was awarded for certain lands therein described an appropriation of 238 inches dating from March 1, 1872, and 114 inches dating from March 1, 1886. The respondent herein was awarded by that decree 150 inches dating from April 1, 1879, 140 inches from April 1, 1882, 100 inches from April 1, 1885, 20 inches from April 1, 1886, 10 inches from May 1, 1886, and 220 inches from April 30, 1893. These several appropriations were awarded and decreed for specified tracts of land. Some years after this decree was entered and affirmed, the appellant Blackman acquired title to a tract of adjoining land, known as the Armitage tract, and appears to have irrigated from time to time a small portion thereof--something like ten acres--from flood and waste waters, and during the last few years has been turning out a small quantity--from twenty to thirty inches--from his regular appropriation...