In re Applications of Rice, 5612

• Decision Date: 16 May 1931
• Docket Number: 5612,5613
• Citation: 299 P. 664,50 Idaho 660
• Court: Idaho Supreme Court
• Parties: In the Matter of the Applications of L. A. RICE and HENRY W. BARTLETT et al. to Change the Point of Diversion of Certain Water Rights from the Head of the Boise City Canal Company's Canal to the Head of the Farmers' Union Ditch Company's Canal

299 P. 664

50 Idaho 660

In the Matter of the Applications of L. A. RICE and HENRY W. BARTLETT et al. to Change the Point of Diversion of Certain Water Rights from the Head of the Boise City Canal Company's Canal to the Head of the Farmers' Union Ditch Company's Canal

Nos. 5612, 5613

Supreme Court of Idaho

May 16, 1931

WATER AND WATERCOURSES-CHANGE OF POINT OF DIVERSION.

1. Boise River held an adjudicated stream, and hence department of reclamation could entertain applications for change of point of diversion thereon (C. S., sec. 5582, as amended by Laws 1921, chap. 146).

2. Statute providing for transfer of point of diversion of water is remedial, and should be liberally construed (C. S., sec 5582, as amended by Laws 1921, chap. 146).

3. On appeal from action of department of reclamation, district court acquired full equitable jurisdiction over entire controversy (C. S., sec. 5582, as amended by Laws 1921, chap 146).

4. In application for permission to change point of diversion of water of canal company, it was immaterial whether applicants were owners of land lying under canal (C. S., sec. 5582, as amended by Laws 1921, chap. 146).

5. Right to change point of diversion of water should not be denied where it is apparent that no injury is sustained or that it may be obviated (C. S., sec. 5582, as amended by Laws 1921, chap. 146).

6. Water is subject to sale and transfer, as real estate.

7. Water decreed to co-operative water corporation may be used on land to which it was first made appurtenant or on other lands to which it might become appurtenant (C. S., sec. 5582 as amended by Laws 1921, chap. 146).

8. On application for permission to change point of diversion of water of co-operative water corporation, court was empowered to provide against possible injury to corporation (C. S sec. 5582, as amended by Laws 1921, chap. 146).

9. Decree transferring point of diversion of water of co-operative water corporation and continuing liability of stockholders for assessments secured by lien on stock and lands to be watered sufficiently protected corporation against possible injury (C. S., sec. 5582, as amended by Laws 1921, chap. 146).

APPEALS from the District Court of the Third Judicial District, for Ada County. Hon. C. H. Hartson, Judge.

Applications for permission to change point of diversion of water, opposed by Boise City Canal Company. From orders of district court denying motions for new trial after affirming a decision of the commissioner of reclamation granting the applications, opponent appeals. Affirmed.

Decree affirmed; costs to respondents.

J. L. Niday, for Appellant.

The commissioner of reclamation has no authority under the laws of Idaho to authorize a change of diversion of a right to the use of water without an application therefor and a published notice thereof in compliance with said section 5582 as amended, for it is by these proceedings he acquires his authority. (Sec. 5582, C. S., as amended, 1921 Sess. Laws, 334.)

"If a statutory method of changing the point of diversion is adopted, a complete compliance with the statutory provisions is necessary." (Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073.)

The order and certificate appealed from as confirmed by the district court amounts to taking property without due process of law, and is in violation of Const., sec. 13, art. 1, and of secs. 1, 2 and 3 of art. 15, and sec. 5556, C. S.

"When the provisions of the Constitution and statutes of this State relating to water rights are carefully read together, it is apparent that, if one appropriates water for a beneficial use, and then sells, rents or distributes it to others, who apply it to such beneficial use, he has a valuable right which is entitled to protection as a property right." ( Murray v. Public Utilities Com., 27 Idaho 603, 619, 150 P. 47, L. R. A. 1916F, 756; Lockwood v. Treman, 15 Idaho 398, 98 P. 295.)

Edwin Snow, for Respondents.

In this case, the controversy between these applicants and appellant was by appeal carried to the district court; the court thereby acquired full equitable jurisdiction of the controversy, and upon hearing granted the transfer. It is, therefore, quite immaterial what the powers of the department of reclamation were in the first instance, and quite immaterial whether or not Rice and Bartlett were or were not at the time of their applications owners of land lying under the Boise City canal from which record place of use they sought the transfer. (State v. Adair, 49 Idaho 271, 287 P. 950; First Security Bank v. State, 49 Idaho 740, 291 P. 1064.)

A stockholder or user of water in a mutual ditch company has a water right which may be transferred. (Twin Falls Canal Co. v. Shippen, 46 Idaho 787, 271 P. 578; Wadsworth Ditch Co. v. Brown, 39 Colo. 57, 88 P. 1060; Hard v. Boise City Irr. Co., 9 Idaho 589, 76 P. 331, 65 L. R. A. 407.)

The waters of Boise River were adjudicated in the case of Farmers' Co-operative Ditch Co. v. Riverside Irr. Dist., 16 Idaho 525, 102 P. 481, the decree in that case being commonly known as the "Stewart decree." Ever since January 29, 1916, this stream has constituted water district No. 12-A, and the waters thereof have been distributed by regularly elected water-masters. This court, in the case of Owen v. Nampa-Meridian Irr. Dist., 48 Idaho 680, 285 P. 464, has held as follows:

"We are of the opinion that the decision of this court in the case of Farmers' etc. Ditch Co. v. Riverside Irr. Dist., 16 Idaho 525, 102 P. 481, together with the decree of the trial court in that case and the orders of Judge Bryan, while not a final adjudication in the sense of becoming res adjudicata, constitute an adjudication of the waters of Boise River within the meaning of sec. 5608, C. S. for the purpose of distribution."

BUDGE, J. Givens, Varian and McNaughton, JJ., and Babcock, District Judge, concur.

OPINION

BUDGE, J.

On January 18, 1906, the district court of Canyon county decreed to appellant, Boise City Canal Company, a water right of 1903 miner's inches of the waters of Boise River with priority of June 1, 1866. (Farmers' etc. Co. v. Riverside Irr. Dist., 16 Idaho 525, 102 P. 481.) By the terms of the decree this water right was awarded for use on agricultural lands lying under the canal system of appellant company, there being in the decree no precise description of these lands by legal subdivision.

Appellant describes itself as a mutual, co-operative water corporation, formed to acquire and hold water appropriation rights and to distribute waters to its stockholders, and having outstanding 2,400 shares of stock. It appears that Rice, one of the respondents, is the owner of 25 shares of capital stock of appellant company and that Henry W. Bartlett, Horace Bartlett and Dr. Fred A. Pittenger are the owners of 75 shares of capital stock of said corporation. During the early part of the year 1919 and for some years prior thereto the water represented by these stock certificates had been diverted at the intake of the canal of appellant company on the Boise River, whence it was transported down the canal of said company for some distance, then through a conduit leading to the Farmers Union Ditch Company canal. From this point it was carried down the Farmers Union canal for some distance and delivered for use upon the land of respondents. In the year 1919 great difficulty was encountered in making delivery of the water by this method. During a part of the season of 1919 and each season up to and including 1925, upon written instructions or authorization given to the Boise River general watermaster by appellant, the water represented by the stock certificates held by respondents was, instead of being diverted from the river at the head of appellant's canal, diverted directly into the Farmers Union canal and thence delivered to the lands of respondents or their predecessors in interest. During the fall of 1925 the Boise River water-master notified appellant that these temporary annual transfers would no longer be permitted, requiring instead that if the transfer was to be continued a permanent order of transfer must be secured. In view of this situation, and on December 26, 1925, respondents filed applications with the commissioner of reclamation, under C. S., sec. 5582, as amended, Sess. Laws 1921, chap. 146, p. 334, to transfer the point of diversion of the water represented by their respective parcels of stock to the intake of the Farmers Union canal. The only party appearing in opposition to these applications was appellant, which based its protest upon certain formal grounds and upon the ground that the requested transfers would work an injury to it in impairing its means of collecting assessments upon the stock representing such transferred water rights.

The applications were granted by the department of reclamation conditioned upon there being filed and recorded with the recorder of Ada county a covenant subjecting the stock, the water rights represented thereby, the land upon which the water is used, and the applicants personally, to liability for all assessments levied by the corporation on this stock, to the same extent as if the change in the point of diversion of the water had not been made. The covenants of liability aforesaid were made covenants running with the land upon which the water was desired to be used. These covenants were filed and recorded, whereupon the certificates of transfer were issued by the department of reclamation. Appellant company prosecuted appeals to the district court of Ada county, where the cases were consolidated for hearing, as they have been in this court. In each case the court affirmed the action of the department of reclamation in allowing the transfers. The...