Hard v. Boise City Irrigation & Land Co.

• Decision Date: 10 February 1904
• Parties: HARD v. BOISE CITY IRRIGATION AND LAND CO
• Court: Idaho Supreme Court

76 P. 331

9 Idaho 589

HARD v. BOISE CITY IRRIGATION AND LAND CO

Supreme Court of Idaho

February 10, 1904

USERS OF WATER FROM A CANAL ACQUIRE A PROPERTY RIGHT WHICH IS TRANSFERABLE.

1. Users of water from a ditch or canal acquire such a property right as they may transfer to other lands under such ditch or canal.

2. They may also sell and transfer the right to use such waters, and the purchaser may transfer it to other lands under the ditch or canal so long as the change of the place does not interfere with the rights of others.

(Syllabus by the court.)

APPEAL from the District Court of Ada County. Honorable George H Stewart, Judge.

Judgment for defendant--respondent here--from which plaintiff appeals. Judgment reversed.

Reversed and remanded. Costs awarded to appellant.

Hugh E McElroy, for Appellant.

There is but one question involved in this case, to wit: Has the user of water upon lands susceptible of irrigation from the ditch of a company claiming a water right under section 2587 Civil Code of Idaho the right to change the place of use of the water to other lands susceptible of irrigation from such ditch, "if others are not injured by such change"? The law in relation to such irrigation canals is found in sections 2595 to 2603, and 2608 to 2613, Civil Code of Idaho. The property rights of users of water are recognized and protected by said statutes and guaranteed by sections 4, 5 and 6 of article 15 of the constitution. In section 2590 provision is made for change of place of use by "the person entitled to the use of water." This is the general law of the state. Section 11, page 234, Seventh Session Laws (1903), provides a method of transfer in cases of "land to which water has been made appurtenant either by decree of the court or under the provisions of this act," thereby recognizing the general principle set forth in section 2590. This section is identical with section 1412, Civil Code of California, which was construed by the supreme court of that state in case of Ramelli v. Irish, 96 Cal. 214, 31 P. 41. The respective rights and duties of the canal owner and the water user are clearly distinguished by these statutes as well as by the decisions of the courts in the arid states. A few years ago there was much doubt on this subject. In all the irrigation states canal owners attempted to speculate upon the public waters by demanding the purchase of a "water right" for a lump sum as a condition precedent to the distribution of water to lands susceptible of irrigation from their canals. The supreme court of Colorado, in case of Wheeler v. Northern Colorado Irr. Co., 10 Colo. 582, 3 Am. St. Rep. 603, 17 P. 487, and the supreme court of Idaho in the case of Wilterding v. Green, 4 Idaho 773, 45 P. 134, substantially held that the canal owner could only require payment of the "annual charges" fixed by law as a condition precedent to the distribution of water. Since those decisions the status of the user of water as the owner of a water right has been universally recognized. (Long on Irrigation, 258 et seq.) Briefly stated, the land owner who applies water to a beneficial purpose is the real owner of the water right, and is specifically named as such, both in section 2590, Civil Code, and section 11, page 234, Laws of 1903, and it is also to the user of water that the perpetual right is guaranteed by sections 4 and 5 of the constitution, and for his benefit section 6 of the constitution provides for fixing annual water rates. Such canal owners are limited to a reasonable income on the investment. (Civ. Code 1901, sec. 2611; Idaho Const., art. 15, sec. 6.) As against actual users of waters, they have no water right to sell, and the right to such water rests absolutely in the user. (Civ. Code, sec. 2587; Wilterding v. Green, 4 Idaho 773, 45 P. 134; Wheeler v. Northern Colorado Irr. Co., 10 Colo. 582, 8 Am. St. Rep. 603, 17 P. 487.) It cannot be denied that where water is used upon land it becomes an appurtenance thereof. The general rule is that the owner may segregate the appurtenance at his own pleasure and do with it as he pleases. The law expressly declares that water rights are real property. (See Idaho Civ. Code, sec. 2348, subsec. 1; Long on Irrigation, pp. 143-145, sec. 50; Strickler v. City of Colorado Springs, 16 Colo. 61, 25 Am. St. Rep. 245, 26 P. 313; Knowles v. Clear Creek etc. Mill Ditch Co., 18 Colo. 209, 32 P. 279; Gallagher v. Mountain View Water Co., 101 Cal. 242, 35 P. 771; Gould on Waters, sec. 237; Black's Pomeroy on Water Rights, sec. 69; Kinney on Irrigation, secs. 233, 248; Openlander et al. v. Left Hand Ditch Co. et al., 18 Colo. 142, 31 P. 854; Cache La Poudre Irr. Co. v. L. W. Reservoir Co., 25 Colo. 144. 71 Am. St. Rep. 123, 53 P. 318; Union Mill & Min. Co. v. Dangberg, 81 F. 115; Clifford v. Larieu, 2 Ariz. 202, 11 P. 397.)

Wood & Wilson, for Respondent, cite no authorities not cited by appellant.

STOCKSLAGER J., AILSHIE, J. Stockslager, J., AILSHIE, J., concurring. SULLIVAN, C. J., Dissenting.

OPINION

STOCKSLAGER, J.

This action was brought to compel the respondent, the Boise City Irrigation and Land Company, a corporation, to change the point of diversion of and deliver to the appellant one and three-fifths cubic feet of water per second of time for the irrigation of certain lands of appellant, the right to the use of which appellant claims to have purchased from one who had formerly leased or rented it of respondent and had used it upon certain land under respondent's canal, which was a different tract from that upon which appellant intended to use it.

It is alleged in the amended complaint that the Boise City Irrigation and Land Company was duly organized and doing business in the state; that it is the owner of and managing and operating a certain irrigation canal, together with a water right from Boise river, which canal is commonly known as the Ridenbaugh canal, and that said corporation is engaged in the business of distributing water for the irrigation of the lands under said canal, charging therefor the compensation fixed by law; that the appellant is the owner of certain land (describing it) situated under said canal; that said land is arid in character and is valueless without water for its irrigation; that during the year 1902, and several years prior thereto, one Simpson was the owner of certain land under said canal, and had received from respondent one and three-fifths cubic feet of water per second of time of the water diverted from Boise river by respondent's said canal, and during said years to the close of the irrigation season of 1902 said water was actually used by said Simpson for the irrigation of his said land; that said Simpson had paid in full therefor and had the right to demand and receive said amount of water from respondent upon payment of the lawful annual charges therefor. That on the fifteenth day of December, 1902, said Simpson sold and conveyed his said water right, together with his said land upon which said right had theretofore been used, to three persons (naming them).

That on December 27, 1902, one of the said grantees, acting for himself and his co-owners, served upon the respondent corporation a notice in writing that he desired the above-described one and three-fifths cubic feet of water per second of time for the irrigation of the land last above described during the following irrigation season; that until March 5, 1903, the said three grantees were the owners of said water right, and upon that date they sold and conveyed the same to this appellant; that at the time the said grantors notified the respondent of the transfer of said water right to appellant and requested that the place of the use of said water be changed to the land as above described, and that upon delivery thereof to the appellant said grantors waived all right or claim to the rental of said water; that on March 6, 1903, appellant delivered said notice to respondent and exhibited to defendant said deed conveying said water right to appellant, and appellant then and there requested of defendant that the place of use of said water be changed from the land of plaintiff's grantors to the land of appellant, which request respondent then and there refused; that on the fourteenth day of April, 1903, appellant made a written demand upon respondent to deliver said water at the head of what is known as the Rust lateral, that being a lateral of the respondent's said canal. Said water was so demanded by virtue of the transfer aforesaid; that at the time of such demand appellant tendered the defendant $ 120 as the lawful rental for said water through the irrigating season of 1903, and offered to pay the respondent such additional sum as it might require or designate as the reasonable rental value of said water for said year, and offered to enter into the contracts or applications commonly required or entered into between the respondent and users of water from its said canal, all of which the respondent refused and still refuses; that at such time respondent made no objection to the amount of compensation tendered by appellant or of his offer to execute the proper contracts and applications for said water. The complaint contains many other allegations not necessary to be repeated here, and prays that a permanent writ of mandate be issued requiring said defendant to deliver to the plaintiff the amount of water aforesaid for the irrigation of said land for the season of 1903, and for judgment for $ 600 damages and costs.

Counsel for respondent interposed what in effect was a general demurrer to the amended complaint, which was sustained by the court. Appellant declined to amend his complaint or further plead; thereupon judgment of dismissal was entered. This appeal is from the...