In re Applications of Rice, 5612

CourtUnited States State Supreme Court of Idaho
Writing for the CourtBUDGE, J.
Citation299 P. 664,50 Idaho 660
PartiesIn 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
Docket Number5612,5613
Decision Date16 May 1931

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 [50 Idaho 661] 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

[50 Idaho 663] 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...

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10 practice notes
  • Twin Falls Canal Company v. Huff, 6510
    • United States
    • United States State Supreme Court of Idaho
    • February 12, 1938
    ...Laws, and similar statutes contemplates a trial de novo in the district court. (State v. Adair, 49 Idaho 271, 272, 287 P. 950; In re Rice, 50 Idaho 660, 666, 290 P. 664.) Unless a party is injuriously affected thereby, he cannot question the constitutionality of a statute. (In re Brainard, ......
  • In re Robinson, 6779
    • United States
    • United States State Supreme Court of Idaho
    • May 23, 1940
    ...Wadsworth Ditch Co. v. Brown, 39 Colo. 57, 88 P. 1060; Kinney on Irrigation, p. 1538; In re Johnson, 50 Idaho 573, 300 P. 492; In re Rice, 50 Idaho 660, 299 P. 664; Taney v. Crum, 55 Idaho 25, 37 P.2d 235; Hard v. Boise City Irr. etc. Co., 9 Idaho 589, 76 P. 331, 65 A. L. R. 407; Slosser v.......
  • Jenkins v. State, Dept. of Water Resources, No. 13705
    • United States
    • Idaho Supreme Court
    • July 8, 1982
    ...acquired jurisdiction over the entire controversy. Beecher v. Cassia Creek Irrigation Co., 66 Idaho 1, 154 P.2d 507 (1944); In re Rice, 50 Idaho 660, 299 P. 664 Jenkins next asserts that the findings of the district court are insufficient upon which to base a conclusion that his Cottonwood ......
  • Hillcrest Irrigation District v. Nampa & Meridian Irrigation District, 6285
    • United States
    • United States State Supreme Court of Idaho
    • February 24, 1937
    ...other judicial proceeding until this action was prosecuted. (See First Security Bank v. State, 49 Idaho 740, 745, 291 P. 1064; In re Rice, 50 Idaho 660, 666, 299 P. 664.) Notwithstanding these facts as they appear from the record, we refrain from committing ourselves as to the validity of t......
  • Request a trial to view additional results
10 cases
  • Twin Falls Canal Company v. Huff, 6510
    • United States
    • United States State Supreme Court of Idaho
    • February 12, 1938
    ...Laws, and similar statutes contemplates a trial de novo in the district court. (State v. Adair, 49 Idaho 271, 272, 287 P. 950; In re Rice, 50 Idaho 660, 666, 290 P. 664.) Unless a party is injuriously affected thereby, he cannot question the constitutionality of a statute. (In re Brainard, ......
  • In re Robinson, 6779
    • United States
    • United States State Supreme Court of Idaho
    • May 23, 1940
    ...Wadsworth Ditch Co. v. Brown, 39 Colo. 57, 88 P. 1060; Kinney on Irrigation, p. 1538; In re Johnson, 50 Idaho 573, 300 P. 492; In re Rice, 50 Idaho 660, 299 P. 664; Taney v. Crum, 55 Idaho 25, 37 P.2d 235; Hard v. Boise City Irr. etc. Co., 9 Idaho 589, 76 P. 331, 65 A. L. R. 407; Slosser v.......
  • Jenkins v. State, Dept. of Water Resources, No. 13705
    • United States
    • Idaho Supreme Court
    • July 8, 1982
    ...acquired jurisdiction over the entire controversy. Beecher v. Cassia Creek Irrigation Co., 66 Idaho 1, 154 P.2d 507 (1944); In re Rice, 50 Idaho 660, 299 P. 664 Jenkins next asserts that the findings of the district court are insufficient upon which to base a conclusion that his Cottonwood ......
  • Hillcrest Irrigation District v. Nampa & Meridian Irrigation District, 6285
    • United States
    • United States State Supreme Court of Idaho
    • February 24, 1937
    ...other judicial proceeding until this action was prosecuted. (See First Security Bank v. State, 49 Idaho 740, 745, 291 P. 1064; In re Rice, 50 Idaho 660, 666, 299 P. 664.) Notwithstanding these facts as they appear from the record, we refrain from committing ourselves as to the validity of t......
  • Request a trial to view additional results

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