Lambrix v. Frazier
| Decision Date | 29 March 1918 |
| Citation | 171 P. 1134,31 Idaho 382 |
| Parties | GEORGE A. LAMBRIX and E. B. FLETCHER, Respondents, v. W. L. FRAZIER, Appellant |
| Court | Idaho Supreme Court |
WATER AND WATERCOURSES-RIGHTS OF PERMIT HOLDER-INJUNCTION-FINDINGS AND DECREE.
1. The holder of a permit to appropriate the waters of a stream with a point of diversion on the main channel thereof, is, to the extent of his permit rights, entitled to the use of the water of the stream, notwithstanding a portion thereof originally diverted to another branch, was returned to the main channel by the holder of a junior permit.
2. A writ of injunction will issue to protect the inchoate contingent right to the use of water by the holder of a permit to appropriate it who has complied with the terms of the permit and has completed his works of diversion and application to such an extent that the water may be applied to a beneficial use.
3. In an action for an injunction, wherein each of the parties asserts a superior right in himself as a ground for injunctive and general relief, findings of fact and decree establishing the prior right are consistent with the case made by the pleadings and with the issues joined.
4. A decree fixing the rights of parties litigant to the water of a stream is binding only on the parties and their privies.
[As to injunction as remedy for wrongful diversion of watercourse see note in Ann.Cas. 1912D, 13]
APPEAL from the District Court of the Fourth Judicial District, for Elmore County. Hon. Edward A. Walters, Judge.
Action to restrain defendant from interfering with a stream. Judgment for plaintiffs. Affirmed.
Judgment affirmed. Costs awarded to respondents.
W. C. Howie and D. A. Dunning, for Appellant.
Plaintiffs had started their injunction suit long before they had any right to start it. Writs of injunction in such cases will not issue. (Nevada County etc. Canal Co. v. Kidd, 37 Cal. 282.)
Even conceding for the sake of argument that this was an action to quiet title, the action was still prematurely brought, for our supreme court has repeatedly held that one has no title to water until he has completed the works so that he can carry water to the land. (Speer v. Stephenson, 16 Idaho 707, 102 P. 365; Marshall v. Niagara Springs Orchard Co., 22 Idaho 144, 125 P. 208; Tobey v. Bridgewood, 22 Idaho 566, 127 P. 178.)
The plaintiff must have a present positive right to be infringed upon, and there must be a reasonable certainty that the defendant will infringe upon that right, and that the infringement will cause irreparable injury to the plaintiff. Courts will not entertain actions for injunction except when there is such a right and a reasonable certainty of the infringement of that right to plaintiff's damage.
Injunction does not lie to prevent prospective damages only. (McHand v. McMurray, 173 Ala. 182, 55 So. 793, and cases there cited; Schoch v. Garrison, 74 N.J. Eq. 292, 70 A. 147; Joyce on Injunctions, sec. 1069 and note; Allott v. American Strawboard Co., 237 Ill. 55, 86 N.E. 685; Kerr v. Riddle (Tex. Civ.), 31 S.W. 328.)
Injunction procedure is not a proper method to quiet title. (Brown v. State, 76 Tex. Cr. 316, 174 S.W. 360; Eastlake Lumber Co. v. East Coast Cedar Co., 142 N.C. 412, 55 S.E. 304; Moore v. Halliday, 43 Ore. 243, 99 Am. St. 724, 72 P. 801.)
Hawley & Hawley, for Respondents.
There is no doubt, under our statutes, that an injunction will lie to prevent threatened injury. (Fischer v. Davis, 19 Idaho 493, 116 P. 412.)
A permit is a privilege granted by the state to secure the benefit of the doctrine of relation. It is a valuable right in that it may determine the priorities of water users. It is equivalent to the ordinary notice. (Speer v. Stephenson, 16 Idaho 707, 102 P. 365; Merritt v. City of Los Angeles, 162 Cal. 47, 120 P. 1064.)
The plaintiff had an incipient, incomplete additional right in the water which he could protect. (Inyo Consolidated Water Co. v. Jess, 161 Cal. 516, 119 P. 934.)
This action is somewhat analogous to one for the prevention of injury to a homesteader's right. (Moore v. Halliday, 43 Ore. 243, 72 P. 801; Ripinsky v. Hinchman, 181 F. 786, 105 C. C. A. 462; De Wolfskill v. Smith, 5 Cal.App. 175, 89 P. 1001.)
The permits of respondents and appellant, senior and junior respectively, call for the appropriation of the waters of Canyon Creek, which stream divides, in its downward course, into two branches known as the East Fork and West Fork. Both places of diversion are located on the West Fork which the trial court found to be the main channel. The findings of fact, being supported by evidence sufficient, if uncontradicted, to sustain them, will not be disturbed because of conflict. (Davenport v. Burke, 30 Idaho 599, 167 P. 481.)
To the extent of their permit rights respondents are entitled to the use of the water of the creek flowing in the West Fork, notwithstanding a portion of it, originally diverted therefrom to the East Fork, was returned thereto by appellant. (Malad Valley Irr. Co. v. Campbell, 2 Idaho 411, 18 P. 52.) Respondents, having substantially complied with the terms of their permit, are the owners of an inchoate, contingent right (Speer v. Stephenson, 16 Idaho 707, 102 P. 365; Basinger v. Taylor, 30 Idaho 289, 164 P. 522), and having completed their works of diversion and application to such an extent that the water may be applied to the beneficial use intended, a writ of injunction was properly issued to restrain appellant from interfering with such use and from thereby preventing respondents from ripening their incipient interest into a complete appropriation. (Allen v. Dunlap, 24 Ore. 229, 33 P. 675; Jackson v. Jackson, 17 Ore. 110, 19 P. 847.) This is true even if an injury to respondents was nonexistent at the time. (Fischer v. Davis (on rehearing), 19 Idaho 493, 116 P. 412.) In this respect respondents' right, though only a consent to construct irrigation works and acquire real property (Speer v. Stephenson, supra), partakes of the nature of a vested right. (Merritt v. City of Los Angeles, 162 Cal. 47, 120 P. 1064; Inyo Consol. Water Co. v. Jess, 161 Cal. 516, 119 P. 934; De Wolfskill v. Smith, 5 Cal.App. 175, 89 P. 1001.)
Appellant's objection that the decree is one quieting title only is not well taken. In effect the decree establishes nothing more than that the rights of respondents under their permit are prior in point of time and superior to the rights of appellant under his permit....
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