Hillcrest Irrigation District v. Nampa & Meridian Irrigation District, 6285

• Court: United States State Supreme Court of Idaho
• Writing for the Court: AILSHIE, J. Per Curiam.
• Citation: 57 Idaho 403,66 P.2d 115
• Decision Date: 24 February 1937
• Docket Number: 6285
• Parties: HILLCREST IRRIGATION DISTRICT, Appearing by J. W. BROSE as Master, and W. T. BOOTH, ARTHUR E. CUNNINGHAM and W. H. THOMPSON, as Its Board of Directors, Appellant, v. NAMPA & MERIDIAN IRRIGATION DISTRICT et al., Respondents

66 P.2d 115

57 Idaho 403

HILLCREST IRRIGATION DISTRICT, Appearing by J. W. BROSE as Master, and W. T. BOOTH, ARTHUR E. CUNNINGHAM and W. H. THOMPSON, as Its Board of Directors, Appellant,
v.
NAMPA & MERIDIAN IRRIGATION DISTRICT et al., Respondents

No. 6285

Supreme Court of Idaho

February 24, 1937

WATER AND WATER COURSES-TRANSFER OF WATER RIGHTS-ESTOPPEL-PLEADING.

1. Owners of water rights who, with full knowledge of all the facts, for 20 years allowed plaintiff to proceed on theory that [57 Idaho 404] plaintiff had valid title to certain water rights and a legal right to have the water diverted from a particular canal and to incur large indebtedness on the strength of such title and right, held estopped by laches from questioning plaintiff's title to such water rights, notwithstanding that plaintiff's title may have been originally questionable.

2. Water right can be transferred separately from lands on which it has been used, provided that rights of another water user are not thereby prejudiced.

3. Right to segregate water right from lands to which such right may be appurtenant inheres in right of property and ownership.

4. Defendants could not complain that description of water rights transferred to plaintiff was insufficient to work legal transfer, where such description was sufficient to enable all parties for more than 20 years to accurately identify and locate plaintiff's water rights.

5. Allegations of answer are deemed denied without replication.

6. Rule of laches and estoppel can be invoked without pleading laches and estoppel, where facts which lead to application of rule appear from proof submitted by respective parties on the trial.

7. Long and continuous knowing acquiescence in another's use and enjoyment of property or privilege precludes person from subsequently asserting his claim.

8. Exclusive jurisdiction to hear action to quiet title to water rights was not vested in district court in which original decree relating to such rights was entered.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles E. Winstead, Judge.

Action to quiet title to water rights. From judgment dismissing plaintiff's action, plaintiff appeals. Reversed and remanded with directions.

Reversed, with direction. Costs awarded in favor of appellant.

Sidman I. Barber and Oppenheim & Lampert, for Appellant.

T. L. Martin for Appellant on Rehearing.

Respondents are now foreclosed by laches and estoppel from claiming appellant's water or interfering with the new point of diversion. (Oylear v. Oylear, 35 Idaho 732, 741, 208 P. 857; Exchange State Bank v. Taber, 26 Idaho 723, 145 P. 1090; Leaf v. Reynolds, 34 Idaho 643, 203 P. 458; Morgan v. Neal, 7 Idaho 629, 65 P. 66, 97 Am. St. 264; Pennypacker v. Latimer, 10 Idaho 618, 81 P. 55.)

Appellant was not required to plead estoppel or laches to the claims of respondents' answers. (Mabee v. Pacific Mut. Life Ins. Co., 37 Idaho 681, 219 P. 602; West Side Lbr. & S. Co. v. Herald, 64 Ore. 210, 128 P. 1006, Ann. Cas. 1914D, 876; Pettengill v. Blackman, 30 Idaho 241, 164 P. 358.)

There was no release of possession and use coupled with intent to abandon. (St. Onge v. Blakely, 76 Mont. 1, 245 P. 532; St. John Irr. Co. v. Danforth, 50 Idaho 513, 516, 298 P. 365; Union Grain etc. Co. v. McCammon Ditch Co., 41 Idaho 216, 224, 240 P. 443.)

The character of use had by the U. S. R. S. did not constitute abandonment by appellant. (Vinyard v. North Side Canal Co., Ltd., 38 Idaho 73, 81, 223 P. 1072; Cache La Poudre Irr. Co. v. Larimer & Weld Reservoir Co., 25 Colo. 144, 53 P. 318, 71 Am. St. 123.)

McElory & Chalfant, G. W. Grebe and R. B. Scatterday, for Respondents.

Abandonment of water begins when owner ceases to apply water to beneficial use and where he fails to so apply it within five years it reverts to the state and again becomes subject to appropriation. (Chill v. Jarvis, 50 Idaho 531, 298 P. 373; sec. 41-216, I. C. A.)

"The doctrine of laches rests not alone upon the lapse of time but upon the inequity of permitting the claim to be enforced. ( Johansen v. Looney, 31 Idaho 754, 176 P. 778.)

Rights acquired under a water license are confined to the water described in the application. (Rabido v. Furey, 35 Idaho 56, 190 P. 73.)

AILSHIE, J. Morgan, C. J., and Holden and Givens, JJ., concur.

OPINION [66 P.2d 116]

[57 Idaho 405] AILSHIE, J.

Appellant, Hillcrest Irrigation District, was organized in 1912 by E. L. Clark and associates. Clark thereafter purchased certain water rights from the Boise River from settlers under the Pioneer Dixie and American Ditch [57 Idaho 406] Association canals, the same being parts of what is known in the Boise Valley as the Stewart Decree, rights 8, 45 and 96. The transfer covered 1077 inches of the natural flow of the Boise River. Deeds were procured from both the canal and land owners and the water rights were thereupon conveyed to the district. The point of diversion of these water rights was below the head of the Caldwell Highline Canal, which takes water from the Boise River below Star. The water rights appurtenant to these lands were entitled to priorities as of dates, 1864, 1869 and 1887, respectively. Water taken from the river to supply these rights is what is known as "live water," that is, from the natural flow of the stream. In other words, it was not seepage or percolating water, that had been previously used for irrigation purposes farther up the stream, which had found its way back into the stream above the heads of the respective canals, leading to the lands to which it was appurtenant. This condition continued to and including 1913, and in the latter part of that year application was made to the state engineer, under sec. 3264, Rev. Codes, then in effect (which is now substantially embodied in sec. 41-216, I. C. A.), by both the vendors and the purchaser, for a permit to change the point of diversion from the canals, through which the water had been diverted from the river, to the New York Canal, at a point much farther up the stream from where the water had theretofore been diverted.

Hearing was subsequently had before the state engineer and the permit was granted (Engineer's Trans. Cert. No. 111); and the transfer, from the previous points of diversion to the proposed new point of diversion on the New York Canal, was made; and the water has been actually diverted from the stream through the New York Canal since July 17, 1914. It has never been used in Hillcrest Irrigation District, because the efforts made to secure sufficient water to irrigate the lands within that district from Arrowrock Reservoir, in addition to that transferred as above stated, have not been successful. The water so procured and diverted from the New York Canal since July, 1914, has, under a working agreement with the United States Reclamation Service, been used on the Boise Irrigation Project, with the understanding that [57 Idaho 407] it should be so used until such time as the district could finance itself and arrange to apply...