Harsin v. Pioneer Irrigation District

• Decision Date: 27 December 1927
• Docket Number: 4796
• Parties: G. G. HARSIN, Respondent and Cross-Appellant, v. PIONEER IRRIGATION DISTRICT, a Public Corporation, Appellant and Cross-Respondent
• Court: Idaho Supreme Court

263 P. 988

45 Idaho 369

G. G. HARSIN, Respondent and Cross-Appellant, v. PIONEER IRRIGATION DISTRICT, a Public Corporation, Appellant and Cross-Respondent

No. 4796

Supreme Court of Idaho

December 27, 1927

APPEAL AND ERROR-COURT RULES-PAYMENT FOR JOINT TRANSCRIPT-WATERS AND WATERCOURSES - IRRIGATION DISTRICTS-FAILURE TO SUPPLY WATER-DAMAGES-PROOF-DUTIES OF DISTRICT-TITLE TO WATER - RIGHTS OF LAND OWNERS - POINT OF DELIVERY-PAROL LICENSE - ESTOPPEL - POINT OF DIVERSION - JUDGMENT - SUFFICIENCY.

1. Under supreme court rule 9 appeal of plaintiff refusing to pay his share of costs of procuring transcript should be dismissed.

2. Supreme court rules of practice were adopted and promulgated with intent that they should be strictly complied with in all respects.

3. In land owner's action against irrigation district for destruction of lateral and for failure to furnish irrigation water and to compel furnishing water in future, where plaintiff adduced no proof as to actual damages sustained from failure to furnish water on which court could have found for him in any substantial amount, judgment refusing him damages was proper.

4. Irrigation district is created for equal benefit and general welfare of all persons owning land therein, and it should deliver water for each tract of irrigable land within its boundaries.

5. Irrigation district holds title in trust to water and irrigation works for various water users who are entitled to share proportionately in entire water supply available for irrigation.

6. Where rights of all persons in irrigation district are of equal rank district has no right to charge land owner for maintenance of system and arbitrarily refuse to deliver to him proportionate share of water, and right to use of water therein cannot be divested by arbitrary act of board of directors, water-master or any other district officer.

7. Where irrigation district for considerable time furnished land owner with water at point from which it could be elevated by wheel and caused to flow through lateral along irrigation ditch over higher portion of owner's land, it was not justified in demanding that he lower level of land at his expense to permit furnishing water at another point.

8. Irrigation district giving land owner parol permission to construct on canal bank lateral by means of which he could irrigate high land, and permitting use thereof for several years, and relying on which land owner made various changes on his property, was estopped from later questioning his right to maintain and use such lateral.

9. Under C. S., sec. 8535, where land owner had by oral permission constructed lateral on canal bank and had arranged land and buildings with reference to water for irrigation obtained through such lateral, which had been used several years, he acquired vested irrevocable right to lateral's continuation, subject to district's right to enforce new satisfactory and equally efficient diversion plan, and decree directing district to deliver water into ditch of land owner so that it would irrigate land, or in lieu thereof to reconstruct such lateral which it had destroyed, was proper.

10. Under C. S., sec. 8535, irrigation district can change place of diversion in its canal if in so doing water user is not injured, even though he has established and acquired point of diversion which he has legal right to use.

11. Decree requiring irrigation district to deliver water for certain tract of high ground at specified end of flume into ditch now constructed and maintained by plaintiff, or in lieu thereof to reconstruct his lateral from water-wheel to flume with carrying capacity equal to his lateral supplying five acres, which district had destroyed, was sufficiently definite and certain as to construction of lateral.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Action for damages and equitable relief. Judgment for plaintiff for equitable relief only. Both parties appeal. Affirmed.

Appeal dismissed and decree and judgment affirmed. Petition for rehearing denied.

Rice &amp Bicknell, for Appellant.

It was error to require defendant by the judgment in this case to deliver water for five acres of land at the north end of the flume mentioned in the judgment, or in lieu thereof to construct a lateral for respondent from the water-wheel to the said flume with a carrying capacity equal to the carrying capacity of a lateral leading from said flume to respondent's land, and to deliver said water into said lateral at the water-wheel.

Respondent's permission to use the bank of the Phyllis Canal for a lateral was a parol license and not an easement, and upon the evidence in this case was revocable at any time. (McReynolds v. Harrigfeld, 26 Idaho 26, 140 P 1096.)

That portion of the decree in paragraph 1 of the decree, wherein appellant is required to construct an irrigating lateral with a carrying capacity equal to the carrying capacity of the present irrigating lateral, is indefinite and uncertain there being nothing in the pleadings, the evidence or the findings as to the carrying capacity of said present irrigating lateral, and defendant asks this court that the same be stricken from said judgment. (Hand v. Twin Falls Co., 40 Idaho 638, 236 P. 536.)

Walter Griffiths, for Respondent.

Appellant's duty to deliver water to respondent and respondent's right to demand and receive water for the irrigation of his land is a continuing duty on the part of appellant, and a continuing right on the part of respondent. And an impairment of this right could not be barred by the passing of time, or the statute of limitations. (37 C. J. 853, sec. 213b; 38 C J. 832; Briggs v. Avary, 47 Tex. Civ. App. 488, 106 S.W. 904.)

The record in the case of McReynolds v. Harrigfeld, 26 Idaho 26, 140 P. 1096, shows that the parties in granting the license had agreed that it might be revoked at will. The evidence in this case shows an oral agreement to grant an easement, which when acted upon became irrevocable, and was removed from the statute of fraud.

The record in this case shows that respondent suffered injury by the acts of appellant, which resulted in damage that could not be compensated for in money, and which was threatened to be continued.

ADAIR, Commissioner. Babcock and Featherstone, CC., concur.

OPINION

ADAIR, Commissioner.--

The plaintiff is owner of twenty acres of agricultural land within the Pioneer Irrigation District, and is entitled to water for its irrigation from what is known and designated as the Phyllis canal of that district, which water is diverted from this canal through certain laterals privately owned by plaintiff. Water for all of the farm, except approximately five acres, which is too high to be irrigated by gravity, is obtained through diversion works and a headgate in the side of the canal. For many years water for this high land was procured by means of a water-wheel, and through a different lateral than that used for the irrigation of plaintiff's low lands. About the year 1910, plaintiff in collaboration with a neighbor, repaired the framework of an old abandoned water-wheel, and constructed a new one in the canal at a point above his land. He utilized this water-wheel thereafter for the purpose of lifting water from the canal to the top of the bank thereof, so he could obtain water for his high land. He procured the consent of the irrigation district to construct a lateral along the north bank of the canal for some distance. This lateral was constructed and used for many years for the irrigation of plaintiff's land, its elevation above the surrounding country obviating the necessity of a flume or fill, and thereby giving the necessary level and grade for the gravity flow of water. In 1917, the district, in order to accommodate him, moved the water-wheel down the canal past a certain corral and public road which had interfered with the use of plaintiff's ditch. The district notified him that it would deliver water for his high land at the place where the wheel was thus installed. Plaintiff continued, as in the past, to use the lateral on the canal bank as a conduit for his water. Soon thereafter, because of alleged injury to the bank of its canal, and because it was claimed that the lateral interfered with the use of the grade by ditch riders, the district notified plaintiff that his lateral must be removed. In March, 1918, the district itself destroyed and removed plaintiff's lateral, which had been constructed and used as aforesaid. Since that time plaintiff has been without water, from the Phyllis canal, for the irrigation of this five-acre tract of high land.

This action was commenced to recover damages because of the destruction of the lateral, and damages for the alleged failure of the district to furnish plaintiff with irrigation water for a period covering many years; and plaintiff also sought thereby to compel the defendant to deliver him water in the future. After the issues were properly formulated, the action was tried by the court, a jury being waived, and judgment entered to the effect that plaintiff was not entitled to recover damages, but the district was required to deliver water during each succeeding season for use on plaintiff's high land, such delivery to be made by it at the north end of a certain flume which crosses this canal, or in lieu thereof, at the water-wheel, and the defendant was further required, in the latter event, to reconstruct the lateral from the water-wheel down the canal bank to the flume so as to connect with that portion of the irrigation system of the plaintiff which was not situated on defendant's right of way. Each party appealed from certain parts of the judgment and decree thus entered, the...