Jackson v. Indian Creek Reservoir Ditch & Irrigation Co., Ltd.

• Court: United States State Supreme Court of Idaho
• Writing for the Court: PER CURIAM.
• Citation: 18 Idaho 513,110 P. 251
• Decision Date: 13 August 1910
• Parties: MAY McELROY JACKSON, Respondent, v. THE INDIAN CREEK RESERVOIR DITCH AND IRRIGATION CO., LTD., Appellant

110 P. 251

18 Idaho 513

MAY McELROY JACKSON, Respondent,
v.
THE INDIAN CREEK RESERVOIR DITCH AND IRRIGATION CO., LTD., Appellant

Supreme Court of Idaho

August 13, 1910

WATER CONTRACT-PRO-RATING AMONG HOLDERS OF CONTRACT-ABANDONMENT OF RIGHT-RIGHT BY USER-EXTINGUISHMENT OF CONTRACT.

(Syllabus by the court.)

1. Under the facts and circumstances of this case, held, that the equities are with the respondent, and that the judgment of the trial court should be affirmed.

2. Held, that there are sufficient facts and circumstances shown by the record to support the findings and judgment of the court to the effect that certain holders of water contracts had abandoned their water rights and ceased to use the same or claim or assert any right under them for more than five years.

3. Where it is contended, as in this case, that one of the parties to the action has by purchase or otherwise acquired the rights of both of the contracting parties to a given contract granting a perpetual water right, and that such party is successor in interest by purchase or otherwise of all of the rights held by both the obligor and obligee, and the party seeks a decree whereby it may be permitted to pro-rate as successor to such contracts with the holder of another like and similar water contract, quaere, as to whether such facts constitute an extinguishment of the original contract.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Fremont Wood, Judge.

Action on water contracts to declare the respective rights and priorities of the parties. Judgment for plaintiff. Defendant appealed. Affirmed.

Judgment affirmed, with costs in favor of the respondent.

Hawley, Puckett & Hawley, for Appellant.

This court has already passed upon the law controlling this particular case. (Jackson v. Indian Creek etc. Co., 16 Idaho 430, 101 P. 814.)

The main contention of appellant in this case is that the former decision of the supreme court has been misconstrued and matters reconsidered which were settled absolutely as the law of the case in the former decision. (Spelling, New Trial and App. Prac., par. 691.)

Karl Paine, for Respondent.

The water rights acquired under similar contracts were extinguished the moment abandonment occurred. The Orchard Irrigation Company contracted to deliver to plaintiff sufficient water for the irrigation of her land. But the plaintiff never received what the company pretended to convey to her until after users under similar contracts had abandoned their rights. A second sale by an irrigation company or an attempted user of the water by it should be enjoined, for to permit the company to sell or use water under these circumstances would work an effectual fraud against former purchasers of water rights. If the plaintiff had been entitled to this relief as against the Orchard Irrigation Company, we are entitled to like relief as against the defendant. (Stanislaus Water Co. v. Bachman, 152 Cal. 716, 93 P. 858, 15 L. R. A., N. S., 359.)

Under the law of water and water rights, the same distinction exists between abandonment and adverse user as exists in the law of mines and mining rights between abandonment and forfeiture. (Long on Irrigation, secs. 82, 83.)

The contract must be read in connection with secs. 4 and 5, art. 16, of the constitution of this state, which sections form a part of the contract.

Therefore, under the circumstances of this case, we acquired a prior right to the use of the waters of the defendant's reservoir the instant the users of water under similar contracts abandoned their water rights. A construction of plaintiff's contract which would compel her to pro-rate with subsequent purchasers would be contrary to the letter and spirit of this section. (3 Farnham on Waters and Water Rights, p. 2101.)

OPINION

[18 Idaho 515] PER CURIAM.

--This case was heard once before on appeal, and the opinion of the court is reported in 16 Idaho 430, 101 P. 814. After the case was remanded it was again tried in the district court and an appeal was taken from the second judgment, and that appeal was heard at the January, 1910, term of this court. Subsequently a petition for a rehearing was filed and granted by the court.

The principal facts of the case are set out at some length in the original opinion and we will not...