Hodges v. Trail Creek Irr. Co.

• Decision Date: 01 May 1956
• Docket Number: No. 8407,8407
• Parties: W. M. HODGES, Plaintiff-Appellant, v. TRAIL CREEK IRRIGATION COMPANY, Inc., Defendant-Respondent.
• Court: Idaho Supreme Court

Page 524

297 P.2d 524

78 Idaho 10

W. M. HODGES, Plaintiff-Appellant, v. TRAIL CREEK IRRIGATION COMPANY, Inc., Defendant-Respondent.

No. 8407.

Supreme Court of Idaho.

May 1, 1956.

Rehearing Denied June 5, 1956.

A. A. Merrill, Idaho Falls, Nels T. Sahl, St. Anthony, for appellant.

Holden & Holden, R. Vern Kidwell, Idaho Falls, for respondent.

KEETON, Justice.

The parties to this action will be referred to as they appear in the trial court. Appellant will be designated as plaintiff and respondent as defendant.

Plaintiff's predecessor in interest appropriated 1.6 second feet of the waters of Trail Creek for irrigation use on the North Half of the Northwest Quarter (N 1/2 NW 1/4) of Section 10, Township 3 N, R. 45 E, B.M. in Teton County by priority of 1896. Plaintiff acquired title to the land in 1940. The water was decreed to plaintiff's predecessor in 1910. The waters were diverted to plaintiff's land, or his predecessor's in interest, by certain irrigation works, and the water to which plaintiff was entitled ran through the Humble Canal, which crosses the southern part of his land. There were five other appropriators of Trail Creek water who received water through this canal and the waters decreed to plaintiff and others were until 1938 used by the appropriators in the proportions established by the decree of 1910. In March 1938 some of the landowners receiving diversion water from Trail Creek created the Trail Creek Irrigation Company, Inc., for the purpose of acquiring, owning, managing and controlling the ditches, canals, laterals, diversion works, rights of way and appurtenances then in existence and for the conveyance of water for the beneficial uses holders and landowners entitled to such holders and landowners entitled to such water. Defendant itself owns no irrigable land and no water. Neither plaintiff nor the former owner of his land was an incorporator.

From 1910, or prior thereto, until the time of the trial (1955) plaintiff's water, with other decreed water, was turned into the Humble Canal. Immediately after the creation of defendant, statements of assessments for maintenance, upkeep and other expense were sent to the stockholders and landowners and plaintiff's predecessor, his father, was sent a statement for an assessment on 160 acres. He answered in substance that he only owned 80 acres. He was then sent a bill for $24. For reasons not clear, the bill, or the part that may have been a proper charge, was not paid.

Plaintiff was a nonresident of the state, living at the time, and until 1950, in Nebraska. In the spring of 1939, by order of the president of defendant, or others acting on its behalf, the watermaster or ditchrider did not allow any water decreed to plaintiff to be taken from the Humble Canal, and by order of the president of defendant, no water was permitted to be used in subsequent years on plaintiff's land, except some run-over water in some years during the high water flow.

While the water decreed to plaintiff was at all times pertinent here in the Humble Canal, it was taken, subsequent to 1939, and used, or partly used, by the five other water users receiving water from that source. Thus the five other water users received 1.6 cubic feet per second of water more than their decreed rights. The watermaster, deputy watermaster and ditchrider testified that plaintiff's decreed water was turned into the Humble Canal each and every year for his use.

For supplemental water during the low water season, water users from the decreed rights of Trail Creek were augmented by stored water from the Fremont-Madison Irrigation District. This water was distributed through the irrigation works of defendant. Plaintiff in 1951, on advice of the president of defendant company, purchased and paid for three-fifths of a foot of stored water in Fremont-Madison Irrigation District. This placed him on a par with other water users receiving water through Trail Creek. This water has to be delivered to him, if at all, through the Humble Canal.

Plaintiff's land was leased to a tenant, and plaintiff being a nonresident of the state and not personally on the land did not know, and was never advised by defendant or anyone else, that he was being deprived of his decreed water until 1950. He then made demand for the water to which he claimed he was entitled. The Board of Directors of defendant refused to recognize such claim and continued to order the watermaster to allow him no water from the Humble Canal, or otherwise.

Defendant alleged in an answer and cross-complaint failure of plaintiff to apply the water decreed to him to a beneficial use and sought to establish rights to the 1.6 second feet (80 inches) of water as a subsequent appropriator, and claimed that the water had been abandoned for a period of in excess of five years and title to the same had been secured by defendant by adverse subsequent appropriation.

The trial court found that plaintiff's right had been forfeited and abandoned and that defendant is the owner of the water formerly decreed to plaintiff. Appeal was taken from the judgment.

In assignments of error plaintifff contends generally that the evidence does not support the findings made by the trial court or the conclusion reached; that the testimony was insufficient to sustain the finding that defendant was a subsequent appropriator and that plaintiff's rights had been lost by failure to apply the water decreed to him to a beneficial use. Further, plaintiff assigns as error certain rulings on the admissibility of evidence and the exclusion of other evidence. While there were many questions propounded to plaintiff's witnesses to which objections were sustained and here assigned as error that should have been overruled, we shall not discuss such assignment separately, but shall limit the discussion to the general contention that the facts found and the conclusion reached are not supported by the law or the evidence.

The only reason we can determine from a perusal of the evidence as to why plaintiff was not furnished or allowed to use the water decreed to him, subsequent to 1938, was the alleged failure to pay the assessments sent to plaintiff's father at the time the corporation was created. No other statements were sent and plaintiff was not advised of any subsequent maintenance charges, if any there were. The only testimony in the record relative to the cost of the upkeep is that subsequent to the creation of defendant it performed a limited amount of work on the Humble Canal, and installed a new headgate for diversion purposes. None of the landowners taking water from the Humble Canal claimed any right to plaintiff's decreed water, and the last user taking water from the canal testified that he had changed the canal at his own expense in a limited particular and that he personally maintained and performed the necessary work on the canal running through plain...