Hillcrest Irrigation District v. Nampa & Meridian Irrigation District

• Citation: 57 Idaho 403,66 P.2d 115
• Decision Date: 24 February 1937
• Docket Number: 6285
• Court: United States State Supreme Court of Idaho
• 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 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

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 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 it should be so used until such time as the district could finance itself and arrange to apply the water to the lands within the district.

It appears that since 1914 all the natural flow of Boise River, during the low-water periods, has been used in the irrigation of lands up stream from the head of the Caldwell Highline Canal; and that it has been the practice, in recent years, to dam the river below the intake of that canal and divert, through the Caldwell Highline Canal, all the water of the stream that flows down that far. The irrigated lands below the head of said canal have been watered from the return flow of the river, which has been adequate for their irrigation.

It will be seen from the foregoing that, whereas "live water," of priorities of 1864, 1869 and 1887, was transferred from rights below the head of the Caldwell Highline Canal up stream to the New York Canal, such could not have been done in later years, for the reason that the lands from which such waters were transferred have not, since 1914, been dependent on, or received, "live water" or natural flow from the Boise River but have been, and are, dependent upon the return or percolating flow of water that had been previously used farther up the stream, for irrigation purposes, and which has furnished an abundant supply for these lower lands. The result has been that, during periods of shortage of water since 1914, the transfer in fact deprived the upper river water users of water which they would otherwise have had the use of, to the extent of the amounts transferred, had the change of the points of diversion not been made.

In 1931 appellant began negotiating for a sale of its water rights in order to liquidate some of its outstanding indebtedness, among which is a $ 40,000 bond issue; and, in order to consummate the deal, found it necessary to prosecute this action to quiet its title to these water rights. After a trial had in district court, the court entered a judgment dismissing appellant's action, from which judgment this appeal has been prosecuted.

Appellant contends here that a decree quieting its title should have been entered in the lower court upon two principal grounds, which may be stated substantially as follows:

First, that the permit, to make the transfer from the original points of diversion to the point up stream on the New York Canal, was and is valid, and that the transfer of the point of diversion has been made pursuant thereto; and the right to take water from the Boise River through the New York Canal, to the extent of these water rights, and according to their dates of priority, has become absolute and vested.

Second, that even though the permit was either irregular or invalid for any cause, nevertheless, appellant has actually diverted (or caused to be diverted) the water through the New York Canal for a period of more than twenty years and has...