Lee v. Hanford

• Citation: 121 P. 558,21 Idaho 327
• Parties: ARCHIE R. LEE and SARAH E. LEE, Respondents, v. ROY HANFORD, Appellant
• Decision Date: 06 February 1912
• Court: United States State Supreme Court of Idaho

121 P. 558

21 Idaho 327

ARCHIE R. LEE and SARAH E. LEE, Respondents, v. ROY HANFORD, Appellant

Supreme Court of Idaho

February 6, 1912

APPROPRIATION OF WATER-FINDINGS-DECREE-CERTAINTY.

(Syllabus by the court.)

1. In an action to quiet title to water appropriated from a public stream in this state, where the issue joined is one of priority, the court should find the actual appropriation made by each appropriator, giving the time the appropriation was made and the quantity of water appropriated to a beneficial use by each appropriator.

2. The quantity of water decreed to an appropriator, in an action wherein the priority of appropriation is the issue, should be upon the basis of cubic feet per second of time of the water actually applied to a beneficial use, and should be definite and certain as to the quantity appropriated and necessarily used by the appropriator.

3. In an action to quiet title to water appropriated, when the issue to be determined is as to the priorities of different appropriations, and the trial court makes a finding in said cause that "L. has appropriated all the waters flowing in the stream," such finding will be set aside upon appeal because of its indefiniteness and uncertainty, and the trial court will be directed to make new findings as to the appropriation of each appropriator, describing the water appropriated by each appropriator in cubic feet per second of time, and to enter a decree in accordance with such finding.

APPEAL from the District Court of the Fourth Judicial District for Elmore County. Hon. Alfred Budge, Judge.

An action to quiet title to water. Judgment for plaintiff. Reversed.

Judgment reversed. Costs awarded to appellant.

J. G Hedrick, for Appellant, cites no authorities.

McFadden & Brodhead, for Respondents.

The transcript (bill of exceptions) does not contain any exception to the decision of the court upon the ground of the insufficiency of the evidence or upon any other ground. Chap 119, Sess. Laws 1911, amending sec. 4434, Rev. Codes, does not modify or change the requirement that the transcript must contain the specifications wherein it is alleged that the evidence is insufficient, or wherein the court erred. (Later v. Haywood, 14 Idaho 45, 93 P. 374; Humphrey v. Whitney, 17 Idaho 23, 103 P. 389.)

STEWART C. J. Ailshie, J., concurs, Sullivan, J., concurs in the conclusion.

OPINION

STEWART, C. J.

This is an action to determine the right of the plaintiffs to the waters of Blackman's Gulch creek in Elmore county, Idaho. The plaintiffs allege the ownership of 160 acres of land, and that they and their predecessors in interest appropriated and applied to a beneficial use in irrigating said land during the irrigation season water in an amount not in excess of 160 miner's inches, and that all of the waters of said creek are necessary for the proper irrigation of said land; and demand that they be adjudged all of the waters flowing in said stream, and that the defendant be enjoined from interfering therein. The defendant answers and denies the plaintiffs' prior appropriation, and also denies the use by plaintiffs of water upon plaintiffs' land, and denies that the stream during the irrigation season flows water to the amount of 160 inches, or greater than 50 inches; denies that the defendant wrongfully and unlawfully diverted the waters of said stream or in any way interfered with the plaintiffs' ditches, or that plaintiffs had any ditches, and denies the plaintiffs' right to the use of any water from said stream, and denies that plaintiffs had any land in cultivation, and damages.

The defendant also filed a cross-complaint in which he alleges that upon the 5th day of June, 1908, he made application to the state engineer for permit to divert 54/60 cubic feet per second of the waters of Blackman's Gulch creek for the purpose of irrigating 320 acres of land, and that during the year 1908, by means of canals, he diverted the waters of said stream to the point described in the permit, and conducted the same upon said land, and made proof to the engineer of the completion of the diversion, and that the state engineer issued to the defendant a water license for the use of said water; that he takes the water from said stream at a point about one mile up the stream from plaintiffs' land; that he has a valid existing water right entitling him to the use of the water of said stream; that the plaintiffs have no right whatever to the use thereof, and prays that his right to the use of the waters of Blackman's Gulch creek may be declared superior to the right of the plaintiffs to the use of said water.

Upon the issues thus formed the trial court found that the evidence was irreconcilable and conflicting, and from such evidence found that plaintiffs and their predecessors in interest have been since May, 1896, and now are, the owners of 160 acres of land; that during the year 1901 the predecessors of plaintiffs, by means of ditches and dams, diverted all the waters of Blackman's Gulch creek in Elmore county, Idaho, for the use of irrigating said land, and that all of the water from said creek has been used on said land for irrigating the same since 1901, except when defendant interfered with the use of the same, and that all of the waters of said creek are necessary for the proper irrigation of said land; that during 1908 the defendant diverted the waters from said creek to his own use and claimed an interest in the waters thereof, adverse to the plaintiffs.

Upon the findings thus made the court entered a judgment and decreed that the plaintiffs have the right to the use of all the waters of Blackman's Gulch creek in Elmore county, Idaho, for irrigating and domestic use upon 160 acres of land, and that the defendant has no right, title or interest therein or any part thereof; and that the defendant should be restrained and enjoined from in any way interfering with the plaintiffs' rights, and for costs. From this judgment this appeal was taken.

Upon the hearing of this case a motion was made to strike from the record certain parts of the...