Independent Irrigation Co. v. Baldwin

• Decision Date: 15 December 1926
• Citation: 43 Idaho 371,252 P. 489
• Parties: INDEPENDENT IRRIGATION COMPANY, LTD., a Corporation, et al., Appellants, v. G. CLYDE BALDWIN, Watermaster of District No. 36, and W. G. SWENDSEN, Commissioner of Reclamation, Respondents, and SNAKE RIVER VALLEY IRRIGATION DISTRICT, IDAHO IRRIGATION DISTRICT, NEW SWEDEN IRRIGATION DISTRICT, and NORTH SIDE CANAL COMPANY, LTD., Intervenors and Respondents
• Court: Idaho Supreme Court

252 P. 489

43 Idaho 371

INDEPENDENT IRRIGATION COMPANY, LTD., a Corporation, et al., Appellants, v. G. CLYDE BALDWIN, Watermaster of District No. 36, and W. G. SWENDSEN, Commissioner of Reclamation, Respondents, and SNAKE RIVER VALLEY IRRIGATION DISTRICT, IDAHO IRRIGATION DISTRICT, NEW SWEDEN IRRIGATION DISTRICT, and NORTH SIDE CANAL COMPANY, LTD., Intervenors and Respondents

Supreme Court of Idaho

December 15, 1926

WATERS AND WATER RIGHTS-DIVERSION FROM TRIBUTARY-INTERVENTION-TEMPORARY INJUNCTION-DISMISSAL OF ACTION WORKS DISSOLUTION-DISCRETION OF COURT-MOTION FOR NONSUIT-EFFECT-EVIDENCE-DUTY OF WATERMASTER AND RECLAMATION COMMISSIONER-REFUSAL OF JURY IN EQUITABLE ACTION.

1. Under C. S., sec. 6655, persons with decreed rights in waters of river and interested in having flow maintained are entitled to intervene in action to enjoin interference with diversion from stream flowing into river.

2. On motion for nonsuit, defendant for that purpose is deemed to have admitted all facts on which there is evidence and which evidence tends to prove and every legitimate inference therefrom.

3. On motion for nonsuit, evidence must be interpreted most strongly against defendant.

4. Evidence held to establish that waters had been diverted and applied to beneficial use for approximately forty years without any interference or adverse claim.

5. Plaintiffs' evidence in action for permanent injunction against interference with diversion of water held sufficient as against motion for nonsuit.

6. Dismissal of action works dissolution of temporary injunction.

7. Granting temporary injunction is largely within discretion of trial court, and in absence of abuse of discretion will not be disturbed.

8. Watermaster and commissioner of reclamation were not required to interfere with diversion of water in absence of proof that diversion was made from tributary of river involved in former adjudication of water rights.

9. Right to use of water by appropriation and use having been established, it cannot be interfered with in absence of proof of superior right.

10. Temporary injunction against interference with diversion of water held not improperly issued.

11. Granting or refusal of trial by jury in equitable action is within discretion of trial court, and its action in that respect will not be reviewed in absence of abuse of discretion.

12. In action to obtain injunction against interference with diversion of water, evidence tending to show plaintiff's right to diversion in that diversion was made from tributary which was not involved in previous adjudication, was admissible.

APPEAL from the District Court of the Ninth Judicial District, for Jefferson County. Hon. Robert M. Terrell, Presiding Judge.

Action to obtain permanent injunction enjoining watermaster et al from interfering with diversion of water. Judgment of nonsuit. Reversed.

Judgment of the trial court reversed. Costs awarded to appellants.

O. A Johannesen and D. E. Rathbun, for Appellants.

The complaint of the appellants, showing upon its face that the appellants had appropriated and used continually for more than forty years all of the water arising from springs and other natural sources in Scott Slough, above a tight and permanent dam maintained by them, across the slough, and that the watermaster was attempting to prevent the diversion and use of his water by the appellants, the latter were entitled to an injunction restraining the watermaster. (Montpelier Milling Co. v. City of Montpelier, 19 Idaho 212, 113 P 741; Sanderson v. Salmon River Canal, 34 Idaho 145, 199 P. 999; Moe v. Harger, 10 Idaho 302, 77 P. 645; C. S., sec. 6769; Kinney on Irrigation, 2d ed., pp. 2922, 2923, 2931, 2932; Atchison v. Peterson, 20 Wall. (U.S.) 507, 22 L.Ed. 414.)

Under a claim or right to the use of water by appropriation and continuous use, as guaranteed by the constitution, or, of public, open, notorious claim of and continuous use of water, the question of fact should be submitted to a jury on request. (Burke v. McDonald, 2 Idaho (310), 339, 13 P. 351; Phoenix Ins. Co. v. Doster, 106 U.S. 30, 27 L.Ed. 65; Killian v. Ebbinghaus, 110 U.S. 568, 4 S.Ct. 698, 28 L.Ed. 246; 3 Elliott on Evidence, sec. 1616; Wheeler v. Laird, 147 Mass. 421, 18 N.E. 212; Harrison v. Spencer, 90 Mich. 586, 51 N.W. 642; Barnes v. Light, 116 N.Y. 34, 22 N.E. 441; Heney v. Breeden, 100 Va. 781, 42 S.E. 916; Jangraw v. Mee, 75 Vt. 211, 98 Am. St. 816, 54 A. 189; Jackson v. Huntington, 5 Pet. (U.S.) 402, 8 L.Ed. 170.)

Otto E. McCutcheon, B. E. Stoutemyer, Whitcomb, Cowen & Clark and Walters & Parry, for Intervenors and Respondents.

The case was not one defined by C. S., sec. 6837, which must be tried by a jury. It was an action for an injunction against an official and there was no error in the court refusing defendant's motion for a trial by jury. This was purely a matter within the court's discretion. (First National Bank v. Commercial Union Assur. Co., Ltd., 40 Idaho 236, 232 P. 899.)

It appeared by the petitions for intervention that the intervenors had a direct and immediate interest in the matter in litigation, and, therefore, intervention was properly allowed. (People v. Green, 1 Idaho 235; Pittock v. Buck, 15 Idaho 47, 96 P. 212.)

It is improper to use the proceeding to obtain a writ of injunction to litigate or determine a permanent or perpetual water right. (Lewis v. Mountain Home Co-op. I. Co., 28 Idaho 682, at 692, 156 P. 419; Daniels v. Adair, 38 Idaho 130, 220 P. 107.)

BUDGE, J. Givens and T. Bailey Lee, JJ., concur. WM. E. LEE, C. J., concur in the conclusion. TAYLOR, J., Concurring Specially.

OPINION

BUDGE, J.

Appellants, Independent Irrigation Company and its stockholders, brought this action against respondents, as watermaster of district No. 36 and commissioner of reclamation, respectively, for the purpose of enjoining the latter, their successors, agents, etc., from preventing the diversion by appellants of certain waters flowing in a natural channel known as Scott Slough, in Jefferson county, and to obtain a decree declaring appellants to be the owners of such waters.

The complaint alleges that appellants appropriated, and have continuously diverted and put to a beneficial use since a date prior to June, 1884, the supply of water rising in Scott Slough from natural springs, and that their claim of exclusive ownership in and to said water has been open and notorious and without opposition or adverse claim on the part of anyone, but that the watermaster of district No. 36 has informed appellants that he will and is threatening to shut off said water supply, with the explanation that appellants have no right to the use of the water. Such threatened interference on the part of the watermaster, appellants aver, is without right, either in law or in equity and for no valid reason whatever, and that to be deprived of the use of said water would cause them irreparable damage and injury. Upon a showing made under the complaint a temporary injunction was issued enjoining respondents from interfering with or in anywise preventing the use of said water by appellants.

A formal written appearance in the action was filed on behalf of respondents by the attorney general, and the Snake River Valley Irrigation District, Idaho Irrigation District, New Sweden Irrigation Dictrict and North Side Canal Company, Ltd., obtained leave to and filed answers in intervention.

The substance of the defense interposed by intervenors was that Scott Slough is a tributary of Snake River and that the waters of the slough comprise a portion of the natural flow of Snake River; that by a decree dated December 6, 1910, in an action wherein appellant company was a party, it was decreed the right to the use of 1,700 inches of the waters of Snake River and had relied upon this adjudicated right until after a sale of the same in 1920; and that the decreed right of 1,700 inches is the only water to which appellants are entitled, and that they ought to be barred and estopped from setting up any claim, right, title or interest in and to the use of the waters of Snake River different from the decreed right.

At the time the cause came on for trial appellants moved the court to strike the answers in intervention and to call a jury, both of which motions were denied. Thereupon the court proceeded to hear the cause upon the issues framed by the complaint and answers in intervention. Oral and documentary evidence was introduced by appellants, and at the conclusion of their case the court granted motions of the intervenors for a nonsuit and to dissolve the injunction theretofore issued. The appeal is from the judgment and order dismissing the action and dissolving the injunction.

Appellants assign as error the action of the trial court in denying their motion to strike the answers in intervention; in granting intervenors' motions for a nonsuit and to dissolve the injunction; also in overruling appellants' request for a jury; and in the rejection of certain evidence. We will dispose of the assignments in the order stated.

It appears that the intervenors have decreed rights to the waters of Snake River and are interested in having the flow of that stream maintained, so as to enable them to divert as nearly as possible the amounts of their respective rights, and they were therefore entitled to present their claims as intervenors in this action. (C. S., sec. 6655; People v. Green, 1 Idaho 235; Pittock v. Buck, 15 Idaho 47, 96 P. 212.)

The rule is well established in this jurisdiction that on a motion for nonsuit, defendant, for the purpose of the motion, is deemed to have admitted all the facts of which there is any evidence and all the facts which the evidence tends to prove and every inference of fact that can...