Knutson v. Huggins, 6927
| Decision Date | 09 July 1941 |
| Docket Number | 6927 |
| Parties | MAUDE KNUTSON, as Administratrix of the Estate of Stener Knutson, deceased; MAUDE KNUTSON, as Administratrix of the Estate of Steve A. Knutson, deceased; and OLE E. KNUTSON, Respondents, v. B. F. HUGGINS, Appellant |
| Court | Idaho Supreme Court |
WATER AND WATER COURSES-ABANDONMENT OF RIGHT-REASONABLE USE-BENEFICIAL USE.
1. Finding and judgment of a trial court made on conflicting evidence will not be disturbed where there is substantial evidence to support them.
2. Evidence sustained judgment quieting title in plaintiff to certain water rights on ground that any right in defendant to use the water was abandoned by failure of the defendant to use the water for approximately 25 years.
3. Fact that trial court in suit to quiet title to water inadvertently fixed year 1879 as plaintiff's date of priority instead of 1885 was not prejudicial to defendant, in view of finding supported by evidence that any right that defendant had in the water had been lost by abandonment.
4. The maintenance of a dam across stream for purpose of storing flood and winter flow waters of the stream for irrigation purposes, as authorized by statute, did not constitute wrongful interference with plaintiffs' right to use of water decreed to them if the defendant would release, during irrigating season, amount of the natural flow of the creek discharging into his reservoir with such additional amount as might be required if any, to deliver to the headgates of the plaintiffs, the amount of the natural flow of the stream discharging into the reservoir, at no time to exceed the amount of water to which the plaintiffs were entitled. (I. C A. secs. 41-202 to 41-214.)
5. At such times as an appropriator is not using water under his appropriation and is not applying the water to a beneficial use, the water must be considered as unappropriated public water of the state and for such period of time is subject to appropriation and use by others and when the appropriator is not using the water, and during season not covered by the appropriation, he must allow the water to flow down the bed of the natural channel.
6. Although title was quieted in plaintiffs to 0.93 cubic feet of water per second of time of the waters of Tammany Creek at such times during the irrigation season as plaintiffs were not using and beneficially applying water decreed to them the defendant had right to use and beneficially apply such water.
APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Miles S. Johnson, Judge.
Suit to quiet title to 0.93 of a cubic foot of water per second of time of the waters of Tammany Creek, and for injunctive relief. Judgment for plaintiffs. Remanded with directions to modify.
Judgment modified, and cause remanded with instructions. Costs divided equally between the parties.
Cox, Ware & Stellmon, for Appellant.
At such times as an appropriator is not using the water under his appropriation and is not applying it to a beneficial use, it must be considered and treated as unappropriated public water of the state, and for such period of time is subject to appropriation and use by others. (Hutchinson v. Watson Slough Ditch Co. Ltd. (1909) 16 Idaho 484 at 485.)
Leo McCarty, for Respondents.
A valid water right can be acquired by the actual appropriation of water from a stream and putting the water to a beneficial use, and continuing to put the same to a beneficial use each year, and where the water is not appropriated or put to a beneficial use for a period of five years the right shall be lost by abandonment. (Sec. 41-216 I. C. A.; Washington State Sugar Co. v. Goodrich, 27 Idaho 26; Mellen v. Great Western Beet Sugar Co., 21 Idaho 353; Nielson v. Parker, 19 Idaho 727; Pyke v. Burnside, 8 Idaho 487; Keiler et al. v. McDonald, et al., 37 Idaho 573; Neil v. Hyde, 32 Idaho 576.)
Tammany Creek, or Tammany Hollow Creek, is a small stream situated about six miles south of Lewiston, Idaho, originating on Tammany Flats and flowing westerly into the Snake River. The source of the stream is drainage and seepage water from the Lewiston Orchards, located to the north, and certain springs rising west of a landmark known as the Old Horse Ranch. The water flows through or by the properties of defendant William Ehlert, Jr., appellant B. F. Huggins, and respondents, into Snake River, in that order.
April 10, 1939, Stener Knutson, Steve A. Knutson and Ole E. Knutson filed a complaint in the District Court of the Tenth Judicial District for Nez Perce County against B. F. Huggins, William Ehlert, Jr., and Nellie Ehlert, his wife, praying their right to the use of 0.93 of a cubic foot per second of the waters of this stream be adjudicated and declared prior and superior to any alleged right of such defendants, and that the defendants be enjoined and restrained from interfering with or in any manner obstructing the flow of such water. The complaint alleged, inter alia: the giving of notice of water right in 1879, and an amendment thereof in 1885, by respondents' predecessors; the application of the water to a beneficial use for a period of 50 years; that respondents used all of the water of the stream for a period of 25 years immediately preceding the commencement of the suit; that the land was arid in character and required irrigation; that since 1936, without right, defendants Ehlerts had been diverting and using said water; that in 1939 defendant Huggins had obstructed the flow of the water in the stream and interfered with respondents' use of the same by building a storage dam and reservoir.
Huggins answered and cross-complained, alleging his predecessors in interest filed notice of water right in 1883, and that he and his predecessors had been applying all the waters of the creek to a beneficial use for 56 years preceding the commencement of the suit. He also alleged the application for and issuance of a permit to construct a storage dam and reservoir; that such dam had been erected and water stored in accordance with the provisions of his permit; that the water was applied to a beneficial use, and that the dam in no manner obstructed or interfered with respondents' water right, the priority of which was denied.
The Ehlerts also answered and cross-complained, asserting a water right based on notices given in 1883 and also claiming a prescriptive right. The trial court found against them and for respondents. They have not appealed, hence we are not here concerned with their claims to the water of Tammany Creek.
Before the trial Stener Knutson died and his administrator, Steve A. Knutson, was substituted as a party. Subsequent to the trial Steve A. Knutson died and the administratrix of the estate of Stener Knutson, and of the estate of Steve A. Knutson, were appointed and substituted as parties.
The case was tried to the court commencing April 8, 1940. Findings of fact and conclusions of law were made and filed September 16, 1940, and judgment entered and filed the same day, whereby respondents were decreed a prior and superior right, free from obstruction or interference of any nature by defendants, to the use of 0.93 of a cubic foot per second of time of the waters of the stream, as claimed by them. From this judgment Huggins alone appealed.
Appellant complains the trial court erred in finding "that the defendant B. F. Huggins, or his predecessors in interest have never used, or diverted, or put to a beneficial use 1.00 cubic feet of water per second of time, or any other number of cubic feet of water per second of time of the waters of said Tammany Hollow Creek upon the lands now owned by the defendant B. F. Huggins for more than 25 years prior to the year 1939," and in decreeing to respondents a prior and superior right to use the water claimed by them.
Supporting this finding there is the...
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