Hutchinson v. Watson Slough Ditch Co., Ltd.

• Decision Date: 08 May 1909
• Citation: 101 P. 1059,16 Idaho 484
• Parties: JOHN P. HUTCHINSON, Respondent, v. WATSON SLOUGH DITCH CO., LTD., a Corporation et al., Appellants
• Court: Idaho Supreme Court

101 P. 1059

16 Idaho 484

JOHN P. HUTCHINSON, Respondent, v. WATSON SLOUGH DITCH CO., LTD., a Corporation et al., Appellants

Supreme Court of Idaho

May 8, 1909

NATURAL WATERCOURSE-RIGHT OF APPROPRIATOR TO CARRY WATER IN CHANNEL OF WATERCOURSE-PRIORITY OF APPROPRIATION-RIPARIAN RIGHTS-RIGHT TO INTERFERE WITH FLOW OF STREAM.

1. Evidence in this case examined and held sufficient to sustain the finding that Watson slough, in Bingham county, is a natural watercourse.

2. A showing by a riparian proprietor that he has been for more than seventeen years using the water of a stream for "domestic, culinary and household purposes and for the use of his livestock," and that the water of the stream has continuously flowed through his land, "moistening the same," does not amount to an appropriation of any of the water of the stream within the meaning of the constitution and statute of this state. The waters of this state are subject to appropriation and diversion in the manner prescribed by the constitution and statute, and priority of appropriation gives the better right to the use of such waters as between the appropriator and every other person, even though he be a riparian owner.

3. The common-law doctrine of riparian rights, in so far as those rights conflict with the right of an appropriator of the waters of a stream, is repugnant to, and in conflict with the constitution and statutes of this state, and to that extent has been abrogated thereby.

4. Riparian rights exist in the state of Idaho only to the extent that they do not come in conflict with the superior and paramount right of one who has appropriated the waters for a beneficial use in conformity with the constitution and statutes of the state.

5. The rights of a riparian proprietor exist and may be maintained as against a stranger who does not claim or assert his right to interfere with or disturb the waters of a natural stream by or on account of an appropriation to a beneficial use. In such case the rights of a riparian proprietor are superior and paramount to the rights of a stranger or intermeddler who does not assert or establish any right to the use of the water by appropriation.

6. A riparian owner's right to use the water of a stream for domestic and culinary purposes and watering his stock, and to have the water flow by or through his riparian premises, is such a right as the law recognizes as inferior to a right acquired by appropriation and superior to any right of a stranger to or inter-meddler with the waters of such stream.

7. At such times as an appropriator is not using the water under his appropriation, and is not applying the water to a beneficial use, such water must be considered and treated as unappropriated public water of the state, and for such period of time is subject to appropriation and use by others.

8. When an appropriator is not using water under his appropriation and during the season not covered by his appropriation, he must allow the water to flow down the bed of the natural channel.

(Syllabus by the court.)

APPEAL from the District Court of the Sixth Judicial District, for the County of Bingham. Hon. J. M. Stevens, Judge.

An action by the plaintiff to enjoin and restrain defendants from shutting off and interfering with the flow of the stream at Watson slough, in Bingham county. Judgment for plaintiff and defendants appeal. Judgment modified, and, as modified affirmed.

Judgment affirmed in part and reversed in part, and cause remanded, with directions.

Hansbrough & Gagon, for Appellants.

A slough which carries no water except the overflow waters of a river in times of flood, which as compared with the volume of water in the river is insignificant, and which has no original water of its own, but is simply a conduit by which occasionally some of the flood water escapes into the lower lands is not a watercourse. (Lamb v. Reclamation Dist., 73 Cal. 125-135, 2 Am. St. 775, 14 P. 625; Singleton v. Atchison T. & S. F. Ry. Co., 67 Kan 284, 72 P. 786; Park v. Boulware, 7 Idaho 490, 63 P. 1045.)

John W. Jones, for Respondent.

Where water has been for many years accustomed to flow in certain well-defined and existing channels only at stated periods of each year, the same constitute natural watercourses and are governed by the rules applicable thereto. (Huffner v. Sawday, 153 Cal. 86, 94 P. 424, and cases cited; Gibbs v. Williams, 25 Kan. 214, 37 Am. Rep. 241; Simmons v. Winters, 21 Ore. 35, 28 Am. St. 727, 27 P. 7, and cases therein cited.)

AILSHIE, J. Sullivan, C. J., and Stewart, J., concur.

OPINION

AILSHIE, J.

This action involves the right of the appellants to shut off the waters of a stream or body of water called Watson slough, in Bingham county, and to prevent the waters flowing down the stream in the natural channel. Watson slough appears to be a natural channel diverting the waters of Snake river from the main stream at a point on the west side of the river about two and one-half miles southwest from Blackfoot, in Bingham county, and flowing thence in a southwesterly direction for a distance of about eight miles and then emptying back into the Snake river. This slough or stream flows through respondent's lands. About the year 1885, a man named Watson duly and regularly made an appropriation of a large volume of the waters of Snake river for the irrigation of agricultural lands. This appropriation was made at the head of Watson slough. The water to be diverted from the Snake river through Watson slough and carried down through the main channel of Watson slough for several miles and on past the premises now occupied by respondent, and thereafter diverted from the Watson slough by means of a canal through which the waters were carried and distributed to the several tracts of land to be irrigated. Watson made some slight improvements in the way of lowering the bed of the channel and removing sand and gravel bars, and also constructed a small wing dam in the Snake river in order to divert a larger volume of water into Watson slough than had formerly been flowing through that channel. Watson and his successors in interest, the appellants herein, have continuously, during the irrigation season, diverted and used the waters of Snake river in the manner above designated since the year 1885. The appropriation and use seem to have been purely for irrigation purposes on agricultural lands. About the year 1891 the respondent established his residence on and acquired title to a tract of land through which Watson slough runs, and alleges that the slough is a natural stream and watercourse and that he is a riparian proprietor thereon. He also alleges that he has for more than seventeen years last past been using the waters naturally flowing in the stream and watercourse for domestic purposes and for watering his livestock, and that as a riparian owner he is entitled to the continued use thereof, and to have the water flow through his lands in its natural course when not used for irrigation and other purposes by prior appropriators in conformity with law. The defendants and appellants deny that the Watson slough is a natural watercourse, but allege, on the contrary, that it is merely a high water channel, and that in its natural state it only carried water during the high water season, and that during the rest of the year it was dry, and they and their predecessors in interest acquired and appropriated the same for canal purposes and enlarged and repaired the same so that it would carry a large volume of water, and that the same is their private property. It was alleged by plaintiff and admitted by the defendants that after the irrigation season, and about October 15, 1907, the appellants shut down their headgate at the head of the slough and also placed therein a dam of earth and rock so as to prevent the water from flowing down the channel through Watson slough, and diverted and deflected the whole body of the stream into the main channel of Snake river, and thereby cut off the flow of water in Watson slough and deprived the respondent of the privilege of using the water for any purpose.

When the case was called for trial, a jury was impaneled and special interrogatories were submitted to them. These interrogatories were specifically directed to the character of the Watson slough,--as to whether or not it was a natural watercourse or merely a high-water channel for overflow waters of Snake river. The court gave certain instructions to the jury, and, among other things, instructed them as to what constitutes a natural stream or watercourse as defined by law. Both appellants and respondent agree that the court gave the correct definition of a watercourse, and for that reason we quote it here. The court said:

"The jury is instructed that a watercourse is a stream of water flowing in a definite channel, having a bed and sides or banks, and discharging itself into some other stream or body of water. The flow of water need not be constant, but must be more than mere surface drainage occasioned by extraordinary causes; there must be substantial indications of the existence of a stream, which is ordinarily a moving body of water."

The jury answered the interrogatories in favor of the contention that Watson slough was and is a natural watercourse. The court adopted the findings of the jury and made additional findings in accordance therewith. The court, among other things, found that:

"Watson slough is now and at all times herein mentioned and from time immemorial has been a natural watercourse, diverting water from the Snake river, on the west side thereof, about two and one-half miles southwest of Blackfoot, in Bingham county Idaho, and flowing through the said described land of the plaintiff, and on in a general...