Jones v. McIntire

• Decision Date: 29 May 1939
• Docket Number: 6634
• Citation: 60 Idaho 338,91 P.2d 373
• Parties: VAL JONES and ROSA JONES, Husband and Wife, Appellants, v. ALVA MCINTIRE, Respondent
• Court: Idaho Supreme Court

91 P.2d 373

60 Idaho 338

VAL JONES and ROSA JONES, Husband and Wife, Appellants, v. ALVA MCINTIRE, Respondent

No. 6634

Supreme Court of Idaho

May 29, 1939

WATER AND WATER COURSES-APPROPRIATION-BENEFICIAL USE-RIGHT TO DECREE.

1. A water right cannot be initiated in trespass on private land.

2. The right of riparian ownership has been abrogated in Idaho. (I C. A., secs. 41-101, 41-103, 41-106; Const., art. 15, sec 3.)

3. Lakes of a surface area of less than 5 acres and pools and springs located wholly on and within the land of a person or corporation are appurtenant to and a part of the land and belong exclusively to the owners of the land. (I. C. A., sec 41-206.)

4. The waters of natural springs which form a natural stream or streams flowing off the premises on which they arise are "public waters" subject to acquirement by appropriation, diversion and application to a beneficial use. (I. C. A., secs. 41-101, 41-103.)

5. Where waters of springs under natural conditions flowed from land on which they arose across boundary to and upon adjoin- ing land, the waters were "public" and subject to appropriation, and where predecessor of adjoining landowners appropriated and diverted the waters on his own land without initiating the right in trespass, and applied the waters to a beneficial use, and water diverted was continuously and uninterruptedly used for beneficial purposes, appropriation was complete. (I. C. A., secs 41-101, 41-103, 41-106; Const., art. 15, sec. 3.)

APPEAL from the District Court of the Eleventh Judicial District, for Cassia County. Hon. Adam B. Barclay, Judge.

Action to establish water rights. Judgment for respondent. Reversed and remanded with instructions to modify the conclusions and judgment.

Reversed and remanded with instructions. Costs awarded to appellants.

H. A. Baker, for Appellants.

The water from the springs was not private water not subject to appropriation. (Hall v. Taylor, 57 Idaho 662, 67 P.2d 901; King v. Chamberlin, 20 Idaho 504, 118 P. 1099; Public Utilities Com. v. Natatorium Co., 36 Idaho 287, 211 P. 533; Washington County Irr. Dist. v. Talboy, 55 Idaho 382, 43 P.2d 943.)

The appropriation by appellants' predecessor was not initiated by trespass and for that reason void. (Marshall v. Niagara Springs Orchard Co., Ltd., 22 Idaho 144, 125 P. 208; Tobey v. Bridgewood, 22 Idaho 566, 127 P. 178; Rabido v. Furey, 33 Idaho 56, 190 P. 73; Bassett v. Swenson, 51 Idaho 256, 5 P.2d 722; Hall v. Taylor, supra.)

The water was diverted by appellants' predecessor and first applied to beneficial use in 1885. It has been annually diverted and applied to a beneficial use. Appellants' appropriation is complete. (Pyke v. Burnside, 8 Idaho 487, 69 P. 477; Sand Point Water & Light Co. v. Panhandle Development Co., 11 Idaho 405, 83 P. 347.)

Respondent neither diverted nor applied to beneficial use any of the water from the springs and is not entitled to rights of an appropriator. (Sarret v. Hunter, 32 Idaho 536, 185 P. 1072; Pyke v. Burnside, supra; Sand Point Water & Light Co. v. Panhandle Dev. Co., supra.)

S. T. Lowe, for Respondent.

The owner of land owns the water of a spring that he has appropriated and used for stock watering purposes, as completely as he does the land, when such spring rises upon his land and has no natural outlet through a defined channel. (Public Utilities Com. v. Natatorium Co., 36 Idaho 287, 211 P. 533; Simons v. Inyo Cerro Gordo M. & P. Co., 48 Cal.App. 524, 192 P. 144, 152; Southern Pacific R. Co. v. Dufour, 95 Cal. 615, 30 P. 783, 19 L. R. A. 92; Herriman Irr. Co. v. Keel, 25 Utah 96, 69 P. 719; Utah Copper Co. v. Stephen Hayes Estate, 83 Utah 545, 31 P.2d 624; Silver King Cons. M. Co. v. Sutton, 85 Utah 297, 39 P.2d 682.)

Water of springs on private land is not subject to appropriation by a person other than the land owner, without his consent. (I. C. A., sec. 41-206; Short v. Praisewater, 35 Idaho 691, 208 P. 844; Harris v. Chapman, 51 Idaho 283, 5 P.2d 733; Public Utilities Com. v. Natatorium Co., supra; LeQuime v. Chambers, 15 Idaho 405, 98 P. 415, 21 L. R. A., N. S., 76.)

Water rising upon land in private ownership, to which a right has been acquired by the owner of the land, that flows off the land not in a defined channel, is fugitive, waste or seepage water. (Sebern v. Moore, 44 Idaho 410, 258 P. 176; Crawford v. Inglin, 44 Idaho 663, 258 P. 541; Barneich v. Mercy, 136 Cal. 205, 68 P. 589; Durning v. Walz, 42 Ore. 109, 71 P. 662.)

BUDGE, J. Ailshie, C. J., and Givens, J., concur. Morgan and Holden, JJ., dissent.

OPINION

BUDGE, J.

Respondent, Alva McIntire, is the owner of the E 1/2 SW 1/4, section 28, T. 16, S. Range 42, E. B. M. Appellants are the owners of the E 1/2 NW 1/4, section 28, T. 16, S. Range 42, E. B. M., immediately north of and adjoining the land of respondent. The land of respondent was entered by one Thompson, her predecessor, and patent issued therefor in 1880. The land of appellants was not entered until 1885. Two springs rise entirely on the land of respondent in a small basin, the springs being located approximately 32 and 76 feet south of the north boundary line of appellants' land. These springs spread over the bottom of the basin, which has a tendency to retain the waters on the lands of respondent, and eight or ten acres of respondent's land is dampened and wet therefrom in ordinary years. The general slope of the lands is to the north and northwest and there is testimony that in 1885 and thereafter waters from the springs flowed to the north in two natural channels joined upon the lands now owned by appellants. In the year 1934, without the knowledge or consent of respondent, appellants entered upon respondent's land, dug out the springs, and cut ditches from the head of the springs conveying the waters of the springs upon appellants' land. Respondent upon discovery of what had been done by appellants partially filled up the ditches so dug, cutting off, at least partially, the flow of water and posted notices forbidding trespass upon her land. Appellants then instituted this action seeking to establish a right to the use of all the water of the springs, with the exception of the right of respondent to water stock therefrom, alleging an appropriation and diversion instituted in 1885 by entry upon the lands of respondent with the consent of the then owner and actual application of the water to the lands of appellants and for domestic purposes, alleging a continuous and uninterrupted beneficial use of the water for irrigation and domestic purposes from 1885 until 1934 when the water supply was interfered with. Appellants prayed a decree and judgment quieting their title to the use of all the water of the two springs, except for the watering of respondent's live stock, and also sought an injunction to restrain respondents from interfering with appellants' claimed right to enter upon respondent's land and clean out the springs and watercourses. Respondent denied the appropriation of water of the springs by appellants and alleged by cross-complaint that she was the owner of all of the water of the springs for domestic, stock and irrigation purposes while the same remained upon her land, praying that appellants take nothing by their complaint and that the same be dismissed and for such other and further relief as to the court might seem meet and proper, and that appellants be enjoined and restrained from entering into and upon her lands or from cutting or digging any ditch, ditches, or trenches thereon, or from digging in or interfering with the springs.

The cause was tried to the court and judgment entered in favor of respondent Alva McIntire dismissing appellants' complaint and adjudging and decreeing that respondent Alva McIntire was the owner of the real estate described in her cross-complaint, together with all the water rising upon said premises, including the water rising from the two springs so long as the same remained upon her land; that she was entitled to have said water flow or spread over her land and use the same for stock or domestic purposes, or any other purpose; and enjoining appellants from digging or constructing ditches for the purpose of diverting, draining, or carrying away the waters rising in said springs.

From the decree entered this appeal is prosecuted.

Appellants' three assignments of error urge that conclusions of law Nos. 1 and 2 and the decree are contrary to and not sustained or supported by the evidence in that: 1, the evidence fails to establish and the court failed to find that respondent Alva McIntire or her predecessor had appropriated, diverted or applied to beneficial use any of the waters of the springs. 2, that the evidence establishes conclusively that the predecessor of appellants in 1885 appropriated and diverted all of the water of the springs and appellants and their predecessors have continuously made beneficial use of the same; and that the conclusions of law numbered one and two and the degree are against the law in that (a) they ignore the priority of right which appropriation gives to appellants; (b) they give the owner of land over which flows waters subject to appropriation the right, by reason alone of ownership of land and without appropriation, to interfere with and entirely control the water while on his premises and in disregard and defiance of the right of prior appropriators; and (c) the doctrine of riparian ownership has been repudiated by the Constitution and statutes of this State.

Before proceeding with a discussion of appellants' assignments of error it appears proper to consider that portion of the conclusions and decree which appellants concede are correct. Paragraph IV of the complaint alleges:

"That sometime during the spring of 1885, plain...