Hill v. Green
| Decision Date | 24 December 1928 |
| Docket Number | 4891 |
| Citation | 47 Idaho 157,274 P. 110 |
| Court | Idaho Supreme Court |
| Parties | W. LEE HILL and GRANVILLE GAUCHAY, a Copartnership Doing Business Under the Firm Name and Style of HILL & GAUCHAY, Respondents, v. STEPHEN GREEN et al., Appellants |
WATERS AND WATERCOURSES-PERCOLATING WATERS-APPROPRIATION-PRIORITY
-BURDEN OF PROOF.
1. One salvaging and appropriating waters of tributary stream which would otherwise be lost by percolation, and not reach the main stream by subflow, is entitled thereto as against prior appropriators of the waters of the main stream.
2. In action for adjudication of water rights, the burden of proof rested upon plaintiffs to show that water salvaged by them and appropriated had not theretofore been appropriated or used by others with prior rights.
3. Where there is sufficient proof, if uncontradicted, to support decree, decree will not be disturbed on appeal.
APPEAL from the District Court of the Ninth Judicial District, for Clark County. Hon. Geo. W. Edgington, Judge.
Action for adjudication of water rights. Judgment for plaintiffs. Affirmed.
Judgment affirmed. Costs to respondents.
E. W Whitcomb, F. J. Cowen and Otto E. McCutcheon, for Appellants.
There are practically but two legal propositions involved in this appeal. The first one is whether or not the plaintiffs, as a matter of law, can gain a superior right over prior appropriators from Medicine Lodge Creek and its tributaries in the manner claimed in this action. The second is, if such a superior right can be so acquired, is the evidence of that clear and convincing kind required by the law to justify the court in awarding them such a superior right?
The supreme court of Idaho has had these, or similar questions before it in a number of cases: (Malad Valley Irrigating Co. v. Campbell, 2 Idaho 411, 18 P. 52; Cartier v Buck, 9 Idaho 571, 75 P. 612; Moe v. Harger, 10 Idaho 302, 77 P. 645; Josslyn v. Daly, 15 Idaho 137 96 P. 568; Jackson v. Cowan, 33 Idaho 525, 196 P. 216; Reno v. Richards, 32 Idaho 1, 178 P. 81; Neil v. Hyde, 32 Idaho 586, 186 P. 710.)
The question as to whom the percolating waters belonged when collected and discharged into a separate stream was in some confusion in the state of Utah until the decision from the supreme court of the United States settled it in the case of the Snake Creek Mining & Tunnel Co. v. Midway Irr. Co., 260 U.S. 596, 43 S.Ct. 215, 67 L.Ed. 423.
Holden & Coffin, for Respondents.
A person who by removing obstructions from a stream and constructing artificial works, prevents the loss of water flowing therein through seepage and evaporation, and materially augments the amount of water available from the stream for a beneficial use, has the right to make use of the amount of water so conserved by his efforts in excess of the natural flow of the stream. (Reno v. Richards, 32 Idaho 1, 178 P. 81.)
A decree will not be disturbed because of conflict in the evidence if the proof in support thereof, if uncontradicted, would be sufficient to sustain it. (Neil v. Hyde, 32 Idaho 576, 186 P. 710.)
Under the provisions of C. S., sec. 7210, the taxation of costs in equity cases is discretionary with the court.
This appeal involves the right to the use of certain of the waters of Indian Creek, a tributary of Medicine Lodge Creek, in Clark county. Respondents, by the construction of certain works, claimed to have salvaged, reclaimed and put to a beneficial use, 10.4 cubic feet per second of time of the waters of said creek. The court decreed to respondents 3 cubic feet per second of time of said waters, from which decree this appeal is prosecuted.
The court found, among other findings, that Indian Creek flows through a porous bed and channel and, except during extreme high water and flood season, a great part of Indian Creek becomes wholly lost by percolation into its bed before its juncture with Medicine Lodge Creek; that the water table in this vicinity is such that no water lost by percolation ever finds its way back into the bed of Indian Creek or into Medicine Lodge Creek, nor is there any subterranean flow supporting the surface flow, and during the irrigation season of each and every year, Indian Creek, prior to the construction of the works of respondents, contributed very little, if any, water to Medicine Lodge Creek; that in order to save the excessive losses of water in Indian Creek by percolation into the bed of said stream, on or about June 1918, respondents and their...
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A&B Irrigation Dist. v. Idaho Dep't of Water Res. & Gary Spackman (In re Petition for Delivery Call of A&B Irrigation Dist. for the Delivery of Ground Water & for the Creation of Area)
...the right to the use of certain of the waters of Indian Creek, a tributary of Medicine Lodge Creek, in Clark county." 47 Idaho 157, 158, 274 P. 110, 110 (1928). After the spring runoff, "a great part of Indian Creek becomes wholly lost by percolation into its [porous] bed before its junctur......
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A & B Irrigation Dist. v. Idaho Dep't of Water Res.
...Green, “involve[d] the right to the use of certain of the waters of Indian Creek, a tributary of Medicine Lodge Creek, in Clark county.” 47 Idaho 157, 158, 274 P. 110, 110 (1928). After the spring runoff, “a great part of Indian Creek becomes wholly lost by percolation into its [porous] bed......
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...since it was imperative that they reconcile the numerous conflicts in the testimony and in the opinions expressed. (Hill v. Green, 47 Idaho 157, 274 P. 110.) original contract between respondent's predecessors and the Carey Act entryman provided a water right of five-eights of an inch to th......
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Noh v. Stoner, 5856
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