Idaho Power & Transportation Co. v. Stephenson

• Decision Date: 30 April 1909
• Parties: IDAHO POWER AND TRANSPORTATION CO., a Corporation, Plaintiff, v. JAMES STEPHENSON, Jr., State Engineer, Defendant
• Court: Idaho Supreme Court

101 P. 821

16 Idaho 418

IDAHO POWER AND TRANSPORTATION CO., a Corporation, Plaintiff, v. JAMES STEPHENSON, Jr., State Engineer, Defendant

Supreme Court of Idaho

April 30, 1909

MANDATE-APPROPRIATIONS-BENEFICIAL USE-PERMIT-CERTIFICATE-LICENSE-FEES TO BE CHARGED BY STATE ENGINEER.

1. The state engineer may be compelled to perform the ministerial duties of his office by writ of mandate.

2. Under the provisions of an act entitled "An Act to Regulate the Appropriation and Diversion of the Public Waters and to Establish Rights to the Use of Such Waters and the Priority of Such Rights," approved March 11, 1903 (Sess. Laws 1903, p. 223, section 3253 et seq., Rev Codes 1909), the legislature has prescribed the method and procedure by which the use of the public waters of the state may be appropriated for useful and beneficial purposes.

3. Upon compliance by the applicant with certain provisions of said act, the state engineer is authorized to issue a permit to him.

4. When proper proof of the completion of the contemplated works is presented to the state engineer and approved by him, he is required to issue a certificate of the completion of such works to the holder of such permit, or his assigns, setting forth therein certain facts required to be set forth by the provisions of said act.

5. Thereafter, upon proper proof of the application of the water sought to be applied to a beneficial use, the state engineer is required to issue a license confirming the right to use such water for the specified beneficial purpose.

6. The state has control of the public waters of the state, and may prescribe rules and regulations whereby they may be appropriated and applied to a beneficial use.

7. Upon the issuance of a certificate by the state engineer certifying to the completion of the works necessary to apply the water to a beneficial use, he may exact a fee to cover the expense of the examination of such works from the person or persons, on submitting the proof of completion, as follows: For ditches and canals or other works having a capacity of ten cubic feet per second of time, or less, a fee of five dollars; and where the capacity is more than ten cubic feet per second, thirty cents for each second foot of the capacity of such works.

8. Riparian owners who desire to appropriate public waters for a beneficial use must comply with the provisions of the law the same as those who are not riparian owners.

(Syllabus by the court.)

Original application for a writ of mandate to compel the state engineer to issue to the plaintiff a certificate certifying that the works of the plaintiff power company have been completed as required by law. Application denied and proceeding dismissed.

Application for the writ of mandate denied. Costs of this proceeding awarded to the defendant.

O. E McCutcheon, for Plaintiff.

Inasmuch as this petitioner does not divert nor propose to divert any water from the natural bed of the stream, does not rent, sell or distribute the same, and does not and cannot interfere with the right of any person who, either heretofore has diverted and appropriated, or who may hereafter divert and appropriate, any of said waters, but only to enjoy the incidental and usufructuary benefits thereof, as they flow over its own land, the permit of the state engineer is a superfluity, and if he takes a fee he gives nothing in return.

The state had no occasion, neither did it undertake, by this act, to interfere with the incidental use which this petitioner seeks to make of the running waters of Snake river as they pass over its land. Petitioner has the most undoubted right to a power privilege, which "consists of the difference of level between the surface where the stream first touches his land and the surface where it leaves it." (Angell on Watercourses, 7th ed., sec. 95, and cases there cited.)

D. C. McDougal, Attorney General, J. F. McLane, J. H. Peterson assistants, and H. W. Wing, for Defendant.

If a person against whom a mandamus is prayed is invested with judicial power, or acts in a deliberative capacity, or has the power and right of deciding, the writ will not lie except to compel him to proceed to the discharge of his duty by deciding according to the best of his judgment. (Ex parte Shaudies, 66 Ala. 134; Towle v. State, 3 Fla. 202.) Plaintiff has a plain, speedy and adequate remedy at law if the state engineer has wrongfully refused to grant license. (Sec. 3265, Rev. Codes.)

SULLIVAN, C. J. Stewart and Ailshie, JJ., concur.

OPINION

SULLIVAN, C. J.

This is an original application for a writ of mandate to the state engineer to require him to issue a certificate to the corporation plaintiff of the completion of its power plant works, whereby it intends to put to a beneficial use 1500 second feet of the waters of Snake river for power purposes.

It appears from the application for the writ that the plaintiff is a corporation, duly organized under the laws of the state of Idaho; that on January 29, 1904, said corporation desired to erect at a certain point on Snake river in Bingham county, a dam and power-house for the purpose of utilizing a portion of the water of said river in generating power, and that to that end said corporation on the date last named filed in the office of the state engineer its application for a permit to appropriate 1500 feet per second of time of the waters of said river; that said application was made upon and in accordance with a blank form in use in the office of the state engineer for the general purposes of applicants under the provisions of an act of the Idaho legislature relating to the appropriation of water for power, irrigation and other purposes (Sess. Laws 1903, p. 223; section 3253 et seq., Rev. Codes, 1909); that said application was approved by the state engineer on January 30, 1904, and the permit therein applied for was granted upon condition that one-fifth of the work contemplated in said application should be completed on or before January 30, 1906, and the whole of said work should be completed on or before January 30, 1908, at which latter date proof of beneficial use of the waters so appropriated was extended to January 30, 1912; that said corporation, after receiving said permit, proceeded to construct said works and completed the same, and made proof of completion thereof as required by said permit, the proof of final completion having been made and filed with the state engineer before the 30th day of January, 1908; that said proof of completion was satisfactory to the state engineer, and was held and accepted by him as full compliance with the law in that behalf, so as to authorize him to give his final approval and certificate to the plaintiff of the completion of said works, and the only question in relation to the same between the said corporation and the state engineer is in respect to the fees which the said corporation should pay to the state engineer under the provisions of section 10 of the act above cited, which is section 3263, Rev. Codes of 1909. The state engineer demanded as such fee thirty cents per second foot for 1500 second feet capacity, amounting to $ 450, that being the capacity of said works, while said corporation, without admitting its legal liability therefor, was willing and offered to pay and tendered to the state engineer the sum of $ 5, and on such tender the said corporation requested the state engineer to approve such proof and issue his certificate to said corporation of the completion of said works, but that the state engineer refused to accept such tender of $ 5, and refused to issue said certificate or any certificate except upon the payment of $ 450, and the only question presented by this record is whether the engineer may charge a fee of thirty cents for each second foot of the capacity of said works.

It appears from the complaint that the works so constructed by said corporation consist of a dam and powerhouse; that said works are located at a point on said river where the same flows over a rocky bed forming natural rapids. The stream at said point is divided, when the river is at its ordinary stage, by certain projecting rocks in the nature of small islands, and the different parts of said dam were built between said islands. The power-house rests upon the rocky bed of the stream at a point where the same is left bare at the time of low water, and a head of water is obtained simply by raising the water by means of said dam, a part of the foundation of which dam is formed by the power-house. The water-wheels of said power-house are located on the lower or downstream side of that part of said foundation, so forming a part of said dam, and the water is led to said water-wheels through an opening in said dam. No ditch or canal was constructed or formed any part of said works, nor is any water diverted by said works from the natural bed and channel of said river, and where said application mentions a ditch, it means only that portion of the natural channel of said river through which the water flows to and through said power-house; and where said application speaks of the diversion of such water, it means only such diversion as would take place by reason of the raising of said water and thereby changing the flow of any of said water from one to another of the natural channels in the bed of said river. A map of said works and of the river is attached to the applicant's petition.

It also appears that said corporation owns the land on both sides of said river at the point where said dam is located, and that the land forming the natural banks of said river is high bench land on both sides and is not overflowed by reason of said dam.

This application is made for the purpose of securing the issuance of a writ of mandate...