In re Robinson

• Decision Date: 23 May 1940
• Docket Number: 6779
• Citation: 61 Idaho 462,103 P.2d 693
• Parties: In re ZEB ROBINSON (WENDELL HIGHWAY DISTRICT No. 16 et al., Intervenors)
• Court: Idaho Supreme Court

103 P.2d 693

61 Idaho 462

In re ZEB ROBINSON (WENDELL HIGHWAY DISTRICT No. 16 et al., Intervenors)

No. 6779

Supreme Court of Idaho

May 23, 1940

WATER AND WATER COURSES-CAREY ACT-WATER RIGHTS, NATURE OF-CHANGE OF PLACE OF USE OF WATER.

1. Notwithstanding agreement between vendor and purchaser of land and appurtenant Carey Act water rights that sale would not be consummated unless purchaser was able to secure right to transfer the water rights, purchaser was "real party in interest," so far as his appeal from order and judgment denying him right to make such transfer was concerned, where title to the land was in purchaser's name, there was no cross-appeal, and lower court did not find that purchaser was not real party in interest. (I. C. A secs. 41-2103-41-2105.)

2. Water rights established as sufficient when settlor acquired land obligated Carey Act construction company to deliver that amount and limited company's duty, but was not a limit on what settlor might later deed, use, or require, so as to preclude his acquiring additional water thereafter.

3. Owner of land and appurtenant Carey Act water rights was entitled to permission to transfer water from one tract to another so as to grow crops requiring such additional water where transfer would not injure other appropriators notwithstanding value of the one tract allegedly would be decreased so as to cause proportionate increase in tax burden of all other taxpayers. (I. C. A., secs. 41-1719, 41-1722, 41-1725, 41-2101, 41-2103 to 41-2105.)

4. Irrigation water must be applied to a beneficial use without waste and no more should be used than is necessary according to the standards and practices of good husbandry for the particular crops sought to be grown, soil and all other essential factors and conditions being taken into consideration, but the kind of crops which may be raised is not restricted.

5. Owner of land and Carey Act water rights has fee-simple title restricted only in that owner must apply water to beneficial use without waste. (I. C. A., secs. 41-1719, 41-1722, 41-1725.)

6. An incident of ownership of a Carey Act water right is the right to transfer or change the place of use of the water if no other water user is thereby injured.

7. A water right is "real property" and may be sold or transferred separate and apart from the land on which it is used, and may be made appurtenant to other land so long as such transfer does not injure other appropriators.

8. Upon a change of place of use or transfer of water within a Carey Act system, the only injury which another user may set up is injury to his water right or the use thereof. (I. C. A., sec 41-2101.)

9. The duty of water affects holders of different priorities and was not involved, where all rights under Carey Act project were of same priority.

10. Carey Act construction company which obtained title to land and water rights by foreclosure of its liens for construction tax owned the land and water the same as any other purchaser at foreclosure sale, so that purchaser from company was entitled to permission to transfer change of place of use of such water, as against contention that company owned 11,000 acres within the Carey Act project, and that all water from such land would thus be sold.

APPEAL from the District Court of the Fourth Judicial District, for Gooding County. Hon. Jay L. Downing, Presiding Judge.

Petitioner appeals from a judgment of the district court sustaining an order of the commissioner of reclamation denying him the right to transfer and change the place of use of a Carey Act water right. Reversed and remanded with directions to enter judgment and order allowing the transfer.

Reversed and remanded with directions. Costs to petitioner. Petition for rehearing denied.

Edwin Snow and A. F. James, for Petitioner-appellant.

The right of transfer by an owner of a water right is an inherent incident of his ownership. (Sec. 1, art. 15, I. C. A.; secs. 41-108, 41-216, I. C. A.; Twin Falls Canal Co. v. Shippen, 46 Idaho 787, 271 P. 578; 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. Salt River Val. Canal Co., 7 Ariz. 376, 65 P. 332.)

Chapter 21, Title 41, I. C. A. (secs. 41-2101 to 41-2109, inclusive), expressly asserts this inherent and pre-existing right of transfer as to lands embraced in Carey Act irrigation projects. These statutes expressly prescribe the only ground upon which such right of transfer can be denied, namely: injury to the water rights of other stockholders. (In re Johnson, 50 Idaho 573, 300 P. 492; Kinney on Irrigation, p. 1538.)

If the duty of water were a proper matter for determination herein, the only proper basis for such determination is (directly contrary to the trial court's conclusion) the character of the particular tract of land involved and the kind of crops raised thereon which require the most water. (Muir v. Allison, 33 Idaho 146, 191 P. 206; Twin Falls L. & W. Co. v. Twin Falls Canal Co., 7 F.Supp. 238 (affirmed, 79 F.2d 431); Joyce v. Rubin, 23 Idaho 296, 130 P. 793; Joerger v. Pacific Gas & Elec. Co., 207 Cal. 8, 276 P. 1017.)

Wayne Barclay, Richards & Haga, Frank L. Stephan and J. H. Blandford, for Respondent.

If appellant's application to transfer the full 40 shares of water was granted, the water represented by the 183.9 shares could not all be beneficially used on the 160-acre tract and part thereof would be wasted. (Sec. 3, art. 15, Const. Idaho, sec. 41-101, I. C. A.)

Water used for irrigation in this arid country because of the scarcity of water and the great quantities of unreclaimed land must be made to perform the highest duty and wasteful and extravagant use of water for irrigation purposes is to be discouraged. (Abbott v. Reedy, 9 Idaho 577, 581, 75 P. 764; Van Camp v. Emery, 13 Idaho 202, 89 P. 752; Schodde v. Twin Falls Land & Water Co., 224 U.S. 107, 33 S.Ct. 470, 56 L.Ed. 686; Gerber v. Nampa etc. Irr. Dist., 16 Idaho 1, 100 P. 80 (p. 25 Idaho Reports).)

Bissell & Bird, for Intervenors.

J. R. Bothwell, Amicus Curiae.

GIVENS, J. Budge, Morgan and Holden, JJ., concur. Ailshie, C. J., did not participate.

OPINION

GIVENS, J.

Petitioner owns 160 acres, together with 143.9 shares of the capital stock of the North Side Canal Company, a Carey Act operating company; each share representing 5/8ths of a miner's inch of water or a total of 89.9 inches. However, because the water is measured at the head of the canal system and only 61 per cent of the canal's capacity is delivered, petitioner actually has only 54.83 inches of water, which he has applied beneficially on approximately 130 of his 160-acre tract. The available quantity of the Canal Company's natural flow water rights in Snake River, because of later priority relative to other Snake River appropriations, vary in amount from season to season, some years ceasing as early as April 10th and other years extending until July 1st. The Canal Company's natural flow rights are supplemented by storage water from Jackson Lake Reservoir, American Falls Reservoir and by several temporary "accommodation" leases of water from such sources as Idaho Power Company, Hillsdale Irrigation District, Twin Falls Canal Company, Blackfoot Reservoir and the Milner Low-lift Project. Even with these storage waters the supply in the project is often insufficient after certain dates during the irrigation season.

For these reasons and because of certain crops which he wishes to raise, namely, alfalfa seed, potatoes, onions, sugar beets etc., petitioner contends, and the court found, he could beneficially use additional water. In 1937 petitioner purchased from Idaho Farms Company, a 40-acre tract adjoining his 160 in the same Carey Act segregation together with the water right appurtenant thereto, being 40 shares of the capital stock of the North Side Canal Company, representing a paper right at 5/8ths of an inch to the acre or 25 inches, for the purpose of permanently transferring the water from it to, and using it on, his 160-acre tract.

Pursuant to statute (sec. 41-2103, I. C. A.) petitioner applied to the board of directors of the North Side Canal Company for permission to make such transfer; the board refused to permit the transfer, whereupon he appealed to the commissioner of reclamation (sec. 41-2104, I. C. A.) who in turn refused to permit the change. Both the board of directors of the company and the commissioner of reclamation were willing to permit the change of place of use of 16.1 shares of water from the 40-acre tract to the 160 on the theory that petitioner should be entitled to 160 shares for the 160-acre tract. Petitioner then appealed from the decision of the commissioner of reclamation to the district court (sec. 41-2105, I. C. A.) which affirmed the refusal on this finding:

"That it is contrary to public policy to determine the duty of water on the irrigation project of said North Side Canal Company, Limited, according to the kind or character of crops which one may for the time being desire to grow on his land, or according to the kind or character of the farming being done by person in possession of such land; that it would be contrary to public policy to permit the transfer of more water than is represented by 16.1 shares of the capital stock of said North Side Canal Company, Limited, and now appurtenant to the land described in Paragraph I of said Findings."

The court also found that petitioner could beneficially use all of the water, both from the 40-acre tract and from the 160 acres on the land cultivated by him on the...