Hillman v. Hardwick

• Decision Date: 24 December 1891
• Citation: 28 P. 438,3 Idaho 255
• Parties: HILLMAN v. HARDWICK ET AL
• Court: Idaho Supreme Court

28 P. 438

3 Idaho 255

HILLMAN v. HARDWICK ET AL

Supreme Court of Idaho

December 24, 1891

SECTION 3159 OF THE REVISED STATUTES CONSTRUED-APPROPRIATION OF WATER FOR IRRIGATION PURPOSES-PRIORITY.-1. Under the statutes of Idaho, which provide (section 3159 of the Revised Statutes of Idaho), "As between appropriators, the one first in time is first in right." Held, that H., who, and his grantors, appropriated first all the waters of Gooseberry creek, and has continually used the same for the purpose of irrigating the lands owned by him, upon and along said creek he is entitled to all of said waters to the extent of the capacity of his ditches necessary to the proper irrigation of his said lands as against subsequent locators.

(Syllabus by the court.)

APPEAL from District Court, Bingham County.

Reversed and remanded, with directions and decree in favor of the plaintiff.

T. M Stewart, for Appellant.

Priority in time of appropriation secures priority of right; or first in time is first in right. (11th Sess. Laws 1881, p. 267; Rev. Stats. 1887, sec. 3159.) A transfer of possession of land to purchaser transfers equitable title to the land; and the water right accustomed to be used with and for the benefit of the land passes as appurtenant to the land. (Cave v. Crafts, 53 Cal. 138; Farmer v. Water Co., 56 Cal. 11; Tucker v. Jones, 8 Mont. 225 19 P. 571; Geddis v. Parrish, 1 Wash. Ter. 587, 21 P. 314.)

George H. Gorman, for Respondents.

The capacity of a ditch is to be determined, not by opinions of nonexperts, but by actual measurement at its smallest point. (Ditch Co. v. Crane, 80 Cal. 181, 22 P. 76; Mining Co. v. Carpenter, 6 Nev. 393.) A mere possessor of public lands cannot acquire title to water or adverse rights therein, as against the government or subsequent claimants under title. (Ellis v. Improvement Co., 1 Wash. Ter. 572, 21 P. 27.) The use or appropriation of water will not be recognized unless it be shown to be a reasonable use and for beneficial purposes. (Rev. Stats., sec. 3156; Barnes v. Sabron, 10 Nev. 217; Dick v. Caldwell, 14 Nev. 167.) A riparian proprietor cannot use all the water of a stream for irrigation. Such use is unreasonable. (Lux v. Haggin, 69 Cal. 255, 406, 10 P. 674; Warren v. Quill, 8 Nev. 218.) To acquire right to water from date of diversion, the amount of water must be proportional to the amount of land cultivated, and the water must be used within a reasonable time. (Sieber v. Frink, 7 Colo. 148, 2 P. 901; Irwin v. Strait, 18 Nev. 436, 4 P. 1215; Dick v. Caldwell, 14 Nev. 167.)

HUSTON, J. Sullivan, C. J., concurs. Morgan, J., took no part in the hearing or decision.

OPINION

HUSTON, J.

This is an appeal by the plaintiff from a judgment and decree of the district court for Bingham county, in an action by the plaintiff to establish his right to the waters of Gooseberry creek and its tributaries, and to restrain the defendants from interfering therewith. The case was heard upon pleadings and proofs before the court without a jury, and is brought here upon a statement of the case, containing all the evidence, the findings of the court and the decree and judgment. The plaintiff, and those under whom he claims, settled upon certain lands lying upon and along Gooseberry creek, in Bingham county, Idaho, in the years 1871, 1872, and 1873. These lands were at the time unsurveyed public lands of the United States. Subsequently, after the lands were surveyed, said parties secured title to their various claims, plaintiff taking one hundred and sixty acres under the pre-emption laws, and the other parties securing different amounts, under the preemption and homestead laws. The said parties at the time of settling upon their said lands made appropriations of all the waters of Gooseberry creek, for the purpose of irrigating the lands so settled upon by them, and title to which was afterward acquired as aforesaid. Gooseberry creek is a small stream flowing down from the mountains upon and through said lands. The fall of the stream is quite precipitous, until it reaches the lands of the plaintiff. The supply of water in the creek is derived from the melting snows of the mountains, and its quantity is consequently dependent upon the snowfall in the mountains. Ordinarily, in the spring of the year, and up to June, the flow of the waters in Gooseberry creek will reach from one hundred and twenty to one hundred and fifty inches. After June 1st the waters decrease quite rapidly, and the stream is usually nearly, if not entirely, dry by the 1st of September. In the years 1888 and 1889, by reason of the slight snowfall, the supply of water in Gooseberry creek was very limited. Under their appropriations, in 1872 and 1873, the plaintiff and his grantors had claimed, appropriated and used, for the purpose of irrigating their said lands, all the waters of said Gooseberry creek since the location of defendants. Occasionally, in the spring of the year, the supply of water in the creek would be in excess of the wants of plaintiff and his said grantors, in which event the defendants, or some of them, utilized such surplus waters upon their lands. Plaintiff and his grantors, in 1872 and 1873, for the purpose of so utilizing the waters of said Gooseberry creek in the irrigation of their said lands, constructed two ditches, one taking the water from the south side of said creek, and the other from the north side thereof. Said ditches were of a capacity more than sufficient to carry all of the waters of said creek, and were and have been continuously used by the plaintiff and his grantors for the purpose of irrigating their said lands. None of the defendants claim to have appropriated or claimed any of the water of Gooseberry creek prior to 1877, and from that year to 1885, at all of which periods the plaintiff and his grantors were in the possession and occupancy of all the lands now claimed by plaintiff, and were using all the waters of said Gooseberry creek in irrigating said lands, except in case of surplus, as before stated. The lands, both of plaintiff and defendants, are partly meadow and partly upland; but neither of whose lands, as is conclusively shown by the evidence on the part of both plaintiff and defendants, will produce remunerative crops without irrigation, although at times the meadow lands, by reason of the nature of the soil, become quite wet from irrigation. The lands of the defendants are all located higher upon Gooseberry creek than the lands of the plaintiff. In the years 1888 and 1889, the defendants took so much of the waters of Gooseberry creek as to leave the plaintiff without sufficient water for the proper irrigation and cultivation of his said lands, whereby the plaintiff was greatly injured and damaged in the failure of his crops for want of proper irrigation. Hence plaintiff brings this suit, and prays that his right to the waters of said Gooseberry creek and its tributaries, by reason of his prior appropriation, may be established, and that defendants may be restrained from interfering therewith.

Defendants allege location of lands by defendant Hardwick, of one hundred and sixty acres in 1877; defendant T. Croshaw, one hundred and sixty acres in 1887; by defendant B. Croshaw, one hundred and sixty acres in 1882; and defendant Beckstead, one hundred and sixty acres in 1877; defendant Cox, one hundred and sixty acres in 1878; defendant Denny, one hundred and sixty acres in 1880; and that said lands are valueless for cultivation without artificial irrigation. That all of said defendants, except defendants T. Croshaw and Beckstead, claim to have appropriated one hundred and sixty inches each of the waters of Gooseberry creek, at the time of making their land locations or settlements, to wit: Hardwick, one hundred and sixty inches; Cox, one hundred and sixty inches; Denny, one hundred and sixty inches; B. Croshaw, one hundred and sixty inches; and defendant T. Croshaw, one hundred and sixty inches from Chicken creek, a tributary of Gooseberry creek. The defendant Beckstead claims that the water used by him is derived from a source foreign to, and not tributary to, Gooseberry creek,...