In re Appeal from Department of Reclamation of State

• Citation: 300 P. 492,50 Idaho 573
• Decision Date: 23 April 1931
• Docket Number: 5650
• Parties: In the Matter of an Appeal from the DEPARTMENT OF RECLAMATION OF THE STATE OF IDAHO. In re Transfer of Water Rights of ENOCH and THORGER JOHNSON
• Court: United States State Supreme Court of Idaho

300 P. 492

50 Idaho 573

In the Matter of an Appeal from the DEPARTMENT OF RECLAMATION OF THE STATE OF IDAHO. In re Transfer of Water Rights of ENOCH and THORGER JOHNSON

No. 5650

Supreme Court of Idaho

April 23, 1931

WATER AND WATERCOURSES-CHANGE OF POINT OF DIVERSION-TRANSFER OF RIGHTS-APPEAL FROM ORDER OF COMMISSIONER OF RECLAMATION-DISTRICT COURT FINDINGS.

1. Generally, water appropriator may change point of diversion if others are not injured (C. S., sec. 5563).

2. Owner of water, made appurtenant to certain lands by court decree, may voluntarily abandon use thereof on such lands and transfer it to other land, if no one is injured (C. S., sec 5582, as amended by Laws 1921, chap. 146).

3. Owner of water appurtenant to certain lands may sell and transfer his rights to another, who may transfer them to other lands, if others are not injured.

4. Transfer of use of water to other land does not work forfeiture, and is not abandonment, of water right.

5. Ditch and water right being separate species of property not inseparably connected, ditch may be abandoned and water utilized through another ditch.

6. Ditch may be conveyed with reservation of right to waters formerly flowing through it.

7. Each of two water appropriators using ditch in common may separately sell or abandon his right thereto, but can sell only his own interest therein.

8. Injury to one owner of drainage canal by co-owners' abandonment thereof does not prevent latter from selling water right, or changing means of conveyance point of diversion, or place of use, term "injured" in statute meaning injury to water right (C. S., sec. 5563; and sec. 5582, as amended by Laws 1921, chap. 146).

9. Applicants for transfer of water rights to other lands and change in point of diversion did not lose such rights by failure to make payments required by state court decree for use of drainage canal.

10. Failure of owner of water right to make payments required by state court decree for use of drainage canal did not bar sale of water or change in means of conveyance, point of diversion, or place of use.

11. Hearing on appeal to district court from reclamation commissioner's order, permitting change in point of diversion and place of use of water, is trial de novo.

12. District court on appeal from reclamation commissioner's order permitting change in point of diversion and place of use of water, should make and file fact findings and conclusions of law (C. S., sec. 6867).

13. Where no findings conflicting with court's conclusion could be made on evidence, judgment will not be reversed for failure to make and file fact findings and conclusions of law.

14. Judgment will not be reversed for court's failure to make fact finding, unless evidence required finding countervailing court's other findings.

15. Where protest and evidence did not disclose that permitted change of place of use of water or point of diversion would injure anyone, case will not be remanded for further fact findings by district court (C. S., secs. 5563, 6867, and sec 5582, as amended by Laws 1921, chap 146).

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.

Protestant appealed from judgment affirming order of commissioner of reclamation authorizing change of point of diversion and place of use of water by one of two tenants in common of a canal. Affirmed.

Judgment affirmed. Costs to respondents.

Merrill & Merrill, for Appellant.

The state engineer or the commissioner of reclamation has no authority to make any change in the point of diversion of appropriated water or change the place of use of water when to do so will damage another appropriator. (C. S., sec. 5582, as amended by chap. 146, p. 334 of 1921 Sess. Laws; Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073; Crockett v. Jones, 42 Ida 652, 249 P. 483; Hall v. Blackman, 22 Idaho 539, 126 P. 1047; Basinger v. Taylor, 30 Idaho 289, 164 P. 522; Wood River Power Co. v. Arkoosh, 37 Idaho 348, 215 P. 975.)

Upon a trial of an appeal from an order by the board of county commissioners, findings of fact should be made unless waived as provided by sec. 4405, Rev. Stats. (Reynolds v. Board of County Commrs., 6 Idaho 787, 59 P. 730.)

T. C. Coffin, for Respondents.

In a proceeding to change the point of diversion and place of use of water the question of the abandonment of the water right is not proper to be considered. (Twin Falls Canal Co. v. Shippen, 46 Idaho 787, 271 P. 578.)

VARIAN, J. Lee, C. J., and Budge, Givens and McNaughton, JJ., concur.

OPINION

VARIAN, J.

This is an appeal from a judgment affirming an order of the commissioner of reclamation permitting Enoch and Thorger Johnson to change the point of diversion and place of use of their water right in Soda Creek.

About June 27, 1929, the said parties made application, in the usual form, setting up their ownership of 3.9 cubic feet per second of the waters of Soda Creek, a tributary of Bear River, in Caribou county, Idaho, with priority of May 1, 1892, as awarded by (supplemental) decree of the federal court, dated June 18, 1926, for irrigating lands situate in townships 8 and 9, south of range 40 E., B. M.; that said water is now diverted from Soda Creek in the NE. 1/4 of section 12, twp. 9 south, range 41 E., B. M.; that said applicants desire to abandon the use of said water upon the lands above mentioned and to convey and use the same on certain described lands in section 6, twp. 9 south, range 42 E., B. M.; that the reason for desiring to make such transfer is that they have sold their water to Ellis Kackley of Soda Springs, Idaho, for use upon the lands last described; that he intends to divert said water by means of a ditch from Soda Creek in the NE. 1/4 of the SE. 1/4 of section 36, twp. 8 south, range 41 E., B. M., in Caribou county, being about a mile and three-quarters northerly above the former point of diversion; "and that no one will be injured by such transfer." Accompanying the application was the affidavit of two disinterested persons to the effect, among other things, that no one will be injured by granting the application. Appellant, Farmer's Land & Irrigation Co. of Alexander, Idaho, Ltd., appeared and contested the application before the commissioner of reclamation upon the following grounds summarized in the petition filed in the district court; that the petitioner will be injured by said proposed transfer in the following particulars:

"1. That the applicants suffered a forfeiture of their right to use a ditch through which to convey any water right claimed by them, and thereafter did not provide themselves with a ditch and hence lost such right by reason of noncompliance with the decree of the above entitled court attached to said protest.

"2. That by permitting a transfer of said water right, your petitioner would be further injured in that the transfer would increase the percentage of carrying losses in your petitioner's canal to the lands served thereunder; would constitute a direct loss of water to your petitioner; would deprive your petitioner from revenues in succeeding years in assisting it in the up-keep of its canal, and would deprive the lands of the stockholders of your petitioner from the use, waste, run-off, etc., of said waters when not otherwise used by the present applicants for transfer of water rights, and would furthermore constitute a waste of water in that the lands to which said water is sought to be conveyed already have, as appears from said petition, a satisfactory water right.

"3. That the said Johnsons have abandoned and forfeited any water right they might have had by nonuse and by forfeiting a right of conveyance of said waters."

The commissioner of reclamation held with the applicants, respondents here, and granted permission to transfer the water right and change the point of diversion. Protestant appealed from his order to the district court, setting up by petition the proceedings theretofore had before the commissioner of reclamation and alleging that the reason for the attempted transfer by applicants was to defeat certain provisions of a revised decree entered in the case, Farmers' Land & Irrigation Co. v. Enoch Johnson and Thorger Johnson, made after appeal to this court from the original decree under direction of this court in said case (39 Idaho 255, 228 P. 311), hereinafter more fully referred to. The trial court, without making any formal separate findings and conclusions entered an "order and judgment" affirming the order of the commissioner of reclamation in all respects and specifically describing the water right and land to which it was transferred and finding that respondents have a right to the use of 3.9 cubic feet per second of time of the waters of Soda Creek, with priority of May 1, 1892, and specifically decreeing the abandonment of the right to the lands it was first applied to and decreeing it to the Kackley lands. The protestant has appealed from the judgment of the district court to this court.

From the record, it is apparent that appellant and respondents both take their water from Soda Creek, the former being entitled to 80 cubic feet per second of time and the latter to 3.9 cubic feet per second of time, with the same priority (May 1, 1892) and same point of diversion, under a decree of the federal court. That, under a final decree of the district court of the state of Idaho, for Bannock county, they are tenants in common of a certain ditch, commonly known as the Soda Canal, the appellant owning an undivided 4000/4195ths interest therein and the respondents owning the remaining 195/4195ths interest therein. The control of the canal is vested in appellant with the right to determine what necessary repair and...