Lockwood v. Freeman

Decision Date18 November 1908
Citation98 P. 295,15 Idaho 395
PartiesL. NORAH LOCKWOOD, as Administratrix, Respondent, v. STERLING FREEMAN et al., Appellants
CourtIdaho Supreme Court

COMPLAINT-DEMURRER-APPROPRIATION OF WATER-MINING-IRRIGATION-LICENSE FROM STATE ENGINEER.

1. Held, that the complaint stated a cause of action, and on the showing made, that the court did not err in granting an injunction.

2. When all of the water of a stream has been appropriated and put to a beneficial use, the state engineer cannot legally deprive the prior appropriator of such water by granting another and subsequent applicant a license to use the same to the injury of the first appropriator.

3. Vested rights to the use of water cannot be taken away, and the right to the use of such water granted to a subsequent locator by the state engineer.

(Syllabus by the court.)

APPEAL from the District Court of the Second Judicial District for Idaho County. Hon. Edgar C. Steele, Judge.

Action to determine the rights and priorities to the waters of Short's creek for mining and irrigation. Judgment for the plaintiff. Affirmed.

Judgment affirmed, with costs in favor of the respondent.

Jas. De Haven, and W. H. Casady, for Appellants.

It is not sufficient to allege in general terms that the injury is irreparable. That question is one for the court, and is to be determined from the facts stated by the complainant. (Frink v. Stewart, 94 N.C. 486; quoted in note to Dudley v. Hurst, 67 Md. 44, 1 Am. St. Rep. 378, 8 A 901; Real Del Monte Min. Co. v. Pond Min. Co., 23 Cal. 82; 22 Cyc. 929, and cases cited in note 38.)

W. N Scales, for Respondent.

The law of 1903 provides that the license of the state engineer is simply prima facie evidence of a right, and does not in any manner affect vested rights. The prior appropriator has the title to the public waters of this state as against a subsequent appropriator of said waters. (Drake v Earhart, 2 Idaho 750, 23 P. 541, and many other cases.) Injunction is the proper remedy, and under the facts in this case should have unquestionably been granted. (Moe v. Hayes, 10 Idaho 302, 77 P. 645; Staples v. Rossi, 7 Idaho 618, 65 P. 67; Price v. Grice, 10 Idaho 443, 79 P. 387; Shields v. Johnson, 10 Idaho 454, 79 P. 394.)

SULLIVAN, J. Ailshie, C. J., and Stewart, J., concur.

OPINION

SULLIVAN, J.

This action was commenced to determine the priorities and rights of the several parties to the action, to the water of a small stream known as Short's creek, situated in Idaho county. The action was commenced May 14, 1907, and on June 22, 1907, an application was made for a restraining order to prevent the defendants from using the waters of said creek. Said application was granted and the restraining order issued. A motion was made to dissolve the restraining order, which application was denied. The defendants, Frank Freeman and R. P. Pinnell, filed their answer disclaiming any interest whatever in the waters of said creek. After the action was brought, the plaintiff, R. E. Lockwood, died, and L. Norah Lockwood, as administratrix of the estate, was substituted as plaintiff. The cause was thereafter tried and the court made its finding of facts and conclusions of law and entered judgment in favor of the plaintiff, decreeing to her as administratrix of the estate of said Lockwood, the right to the use of all of the waters of said creek and enjoining the appellants and those under them to desist and refrain from using the waters of said creek, or any portion thereof. From that judgment this appeal was taken.

It appears that the appellants interposed a demurrer to the complaint, which was overruled by the court. The errors assigned go to the overruling of the demurrer and the denial of the motion to dissolve the injunction and the entering of the judgment in favor of the plaintiff.

The last assignment of error is based upon the insufficiency of the evidence to support the findings made by the court. The complaint clearly states a cause of action and the demurrer to it was properly overruled. A sufficient showing was made on the application for the injunction to warrant the court in issuing the writ. There was no error in granting the injunction.

The following facts were established by the evidence:

That respondent's grantors located the waters of said Short's creek for the purpose of working certain placer mines situated on said creek. It also appears from the evidence that said creek, during high-water season, contained from one to four hundred inches of water, which high water only lasted for a week or two during the spring of the year and during the...

To continue reading

Request your trial
10 cases
  • Pioneer Irr. Dist. v. American Ditch Ass'n
    • United States
    • Idaho Supreme Court
    • June 2, 1931
    ...application, and the filing of May 25, 1908, did not deprive it of such priority given by the court, thus previously acquired. (Lockwood v. Freeman, supra; Joyce v. Rubin, 23 Idaho 296, 130 P. 793; In Water Rights in Silvies River, supra, at page 327.) July 2, 1894, respondent Farmers' Unio......
  • Sanderson v. Salmon River Canal Co., Ltd.
    • United States
    • Idaho Supreme Court
    • July 2, 1921
    ...1113; Cornelius v. Kessel, 128 U.S. 456, 9 S.Ct. 122, 32 L.Ed. 482; Hans v. State, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842; Lockwood v. Freeman, 15 Idaho 395, 98 P. 295; Gard v. Thompson, 21 Idaho 485, 123 P. Nielson v. Parker, 19 Idaho 727, 115 P. 488.) Failure to make payment for the water......
  • Village of Peck v. Denison
    • United States
    • Idaho Supreme Court
    • January 27, 1969
    ...1, 178 P. 81 (1918); Lee v. Hanford, 21 Idaho 327, 121 P.2d 558 (1912).3 Idaho Const. art. 15, § 3; I.C. § 42-101.4 Lockwood v. Freeman, 15 Idaho 395, 98 P. 295 (1908); Drake v. Earhart, 2 Idaho 750, 23 P. 541 (1890); Malad Valley Irr. Co. v. Campbell, 2 Idaho 411, 18 P. 52 (1888); see Hutc......
  • Basinger v. Taylor
    • United States
    • Idaho Supreme Court
    • April 3, 1917
    ...under the provisions of the statute. (Conant v. Jones, 3 Idaho 606, 32 P. 250; Brown v. Newell, 12 Idaho 166, 85 P. 385; Lockwood v. Freeman, 15 Idaho 395, 98 P. 295; Nielson v. Parker, 19 Idaho 727, 115 P. In the latter case the court said: "It has never been the intention, so far as we ar......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT