King v. Chamberlin

• Citation: 118 P. 1099,20 Idaho 504
• Parties: BELLE KING and C. B. KING, Respondents, v. A. V. CHAMBERLIN, Appellant
• Decision Date: 03 November 1911
• Court: United States State Supreme Court of Idaho

118 P. 1099

20 Idaho 504

BELLE KING and C. B. KING, Respondents, v. A. V. CHAMBERLIN, Appellant

Supreme Court of Idaho

November 3, 1911

PRIVATE AND PUBLIC WATERS-SURFACE AND DRAINAGE WATERS-PRIVATE OWNERSHIP IN WATER-RIGHT OF APPROPRIATION AND DIVERSION-RIGHT TO IMPOUND WATERS.

(Syllabus by the court.)

1. Where K. builds dams and dikes on his own land and collects surface water from the rains and melting snow and forms a lake on his own lands, which is in no way fed from any natural stream or regular flow of water, held, that the water so accumulated and impounded is the private property of the owner of the land and is not subject to appropriation or diversion by any other person without the consent of the land owner, and that the state engineer has no right or authority to grant a permit to any other person to appropriate or divert such private waters.

2. The constitution, sec. 3, art. 15, confers and protects the right to "divert and appropriate the unappropriated waters of any natural stream to beneficial uses," but does not purport to deal with private waters, such as private ponds artificial lakes or wells owned by private persons and formed by collecting and impounding surface water.

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. Robert N. Dunn, Judge.

Submission on an agreed statement of facts as to the right of the plaintiffs to the waters of an artificial lake constructed on their own land. Judgment for the plaintiffs and defendant appeals. Affirmed.

Judgment affirmed. Costs awarded in favor of respondent.

Roger G. Wearne, for Appellant.

The waters of a lake which was formed from a slough by means of dams and dikes, and which is wholly upon private lands, may be legally appropriated and diverted for irrigation or domestic purposes, without the consent of the owner of such lands. (Sec. 3252, Rev. Codes; Delaplaine v. Chicago &amp N.W. Ry. Co., 42 Wis. 214, 24 Am. Rep. 386; Deidrich v. Northwestern Union Ry. Co., 42 Wis. 248, 24 Am. Rep 399; Van Camp v. Emery, 13 Idaho 202, 89 P. 752; Denver & Ft. R. Co. v. Dotson, 20 Colo. 304, 38 P. 322.)

McFarland & McFarland, for Respondents.

It was the intention of the framers of the constitution of this state to limit the right to divert and appropriate unappropriated waters.

"A watercourse is a stream of water flowing in a definite channel, having a bed, and sides or banks, and discharging itself into some other stream or body of water." ( Hutchinson v. Watson Slough Ditch Co., 16 Idaho 484, 133 Am. St. 125, 101 P. 1059; 2 Farnham's Waters and Water Rights, 1553-1565; Hill v. Cincinnati W. & M. Ry. Co., 109 Ind. 511, 10 N.E. 410; Robinson v. Shanks, 118 Ind. 125, 20 N.E. 713.)

A depression or drainage that merely carries away water during the rainy season is not a natural stream of water or watercourse. (2 Farnham's Water and Water Rights, 1555-1560; Carr v. Moore, 119 Iowa 152, 97 Am. St. 292, 93 N.W. 52; Applegate v. Franklin, 109 Mo.App. 293, 84 S.W. 347.)

A lake, spring, pond, pool or slough, without a stream connected therewith, is not a watercourse or natural stream, and the waters thereof are not open to appropriation or diversion. ( Dickey v. Maddux, 48 Wash. 411, 93 P. 1090.)

AILSHIE, J. Stewart, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

This case was submitted to the trial court on an agreed statement of facts as follows: Paragraph 1 states that the plaintiffs are husband and wife; paragraph 2 describes the lands belonging to the plaintiffs, comprising 160 acres situated in Kootenai county, Idaho; paragraphs. 3, 4, 5, 6, 7, 8, and 9 are as follows:

"3. That at all of the times herein mentioned there was and yet is wholly situated and located on said lands and premises a certain lake, known as, named and called Avondale Lake, about three-quarters of a mile long, and from 200 to 400 yards wide, and that said lake is at all times wholly and entirely situated upon and confined to and within the said above-described lands and premises;

"4. That about twenty-five years ago said lake consisted of a shallow slough that covered not to exceed 15 acres, and that in the spring the said lake had an outlet to Hayden Lake, which is about one-quarter of a mile distant, but that during the summer and fall months said outlet and lake both became dry, and only a small quantity of stagnant green water remained in the lake till the fall and spring rains and the melting snow would from time to time replenish the waters thereof;

"5. That about eighteen years ago plaintiffs commenced to build dams and dikes at the lower end of said Avondale Lake, and wholly and entirely upon the lands of plaintiff Belle King, and that by means of said dams and dikes, built and improved by plaintiffs, as aforesaid, from year to year, said Avondale Lake has developed from a slough of not to exceed fifteen acres to a lake three-quarters of a mile long by from 200 to 400 yards wide; that without the work of damming and diking by plaintiffs, as aforesaid, said lake would not retain or hold any water whatever during the summer and early fall seasons, but would go dry;

"6. That said Avondale Lake is not and never has been fed or supplied with water by any stream, natural or other-wise, and contains no springs, but that it is supplied with water from the spring and fall rains, and from the snows that melt in the spring and flow over the lands of plaintiff into said Avondale Lake;

"7. That at all of the times herein mentioned plaintiff Belle King owned and still owns all of the lands, shores and shore lines immediately surrounding, adjoining and adjacent to said Avondale Lake and every part thereof, and that said Avondale Lake is and for more than fifteen years immediately preceding the date hereof has been in the inclosure of plaintiff, and within lands that are and at all of said times have been inclosed by a fence;

"8. That during the extreme high water of said lake, the depth thereof at the deepest point does not exceed twenty-five feet, and that during the summer or dry season said lake annually falls at least ten feet;

"9. That said Avondale Lake is not and has never been used for logging or other navigable purposes, and that no boats of any description, except the private pleasure boats of plaintiffs, have ever been operated or navigated upon said lake."

Paragraph 10 is to the effect that on the 9th day of May, 1911, the defendant, A. V. Chamberlin made application to the state engineer for a permit to appropriate the waters of Avondale Lake for irrigation purposes to irrigate a certain tract of land owned by the defendant and therein described, and that he thereafter received such permit from the state engineer.

Paragraphs 11 and 12 are as follows:

"11. That said defendant intends to and gives out and threatens that he will divert the waters of said Avondale Lake as aforesaid, for the purposes aforesaid, unless prevented or restrained therefrom by an in junctional order of this court, and that if defendant is permitted to so divert the waters of said lake, it will result in greatly and materially decreasing the waters thereof, if not in totally exhausting the same;

"12. That defendant's said application for said permit was made, and said permit granted to defendant by the state engineer, as aforesaid, without the consent of plaintiffs and against their will, and that plaintiffs object to defendant being permitted to appropriate or divert the waters of said Avondale Lake for the purposes aforesaid, or for any other purposes."

The foregoing comprises all the facts to be considered in determining this case. Based upon the foregoing statement of facts, the parties submitted the following questions to the court for answer and decision:

"1. Are the waters of Avondale Lake public waters, and are they open and subject to appropriation and diversion for irrigation purposes under the laws of the state of Idaho?

"2. Avondale Lake being entirely and wholly upon the lands and premises of plaintiff Belle King, and not being fed, supplied or maintained by any streams, natural or otherwise, and not containing any natural springs, but being originally a slough that has since been dammed and diked and kept dammed and diked, and which is fed, and supplied and maintained with water by the spring and fall rains and the melting snows, is it not private waters?

"3. Has the state engineer, under the laws of the state of Idaho, the power or authority to grant a permit to the defendant for the appropriation and diversion of the waters of Avondale Lake for irrigation purposes, against the will and consent of plaintiffs?

"4. Has defendant the legal right, under and by virtue of his said permit, which is hereby agreed to be sufficient in form, to appropriate and divert the waters of Avondale Lake for irrigation purposes as aforesaid, against the will and consent of plaintiffs?

"5. Is plaintiff Belle King the exclusive owner of Avondale Lake and the waters thereof?

"6. Is plaintiff Belle King entitled to an injunction restraining the defendant A. V. Chamberlin from diverting the waters of said Avondale Lake?"

The trial court answered these questions in favor of the plaintiffs and rendered and entered his judgment accordingly. The defendant has appealed from the judgment.

The decisive question to be answered by this court is...