Mahoney v. Neiswanger

Decision Date19 December 1899
Citation59 P. 561,6 Idaho 750
PartiesMAHONEY v. NEISWANGER
CourtIdaho Supreme Court

APPROPRIATION OF WATER-PRIOR RIGHTS.-The right of a prior appropriator of water cannot be defeated to any portion thereof, on the ground that he has by reason of a mistake as to the location of his boundary lines used a portion of such waters upon other land than his own.

SAME-FIRST IN TIME FIRST IN RIGHT-BENEFICIAL USE.-Under the facts in this case, held, that the rights of plaintiff as prior locator have not been impaired by reason of his not having put the water appropriated by him to a beneficial use. The doctrine of Hillman, v. Hardwick, 3 Idaho 255, 28 P. 438, and Conant v. Jones, 3 Idaho 606, 32 P. 250, affirmed.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Judgment of the district court reversed, with costs to appellant. Cause remanded.

W. E Borah and Wyman & Wyman, for Appellant.

The evidence shows that he plaintiff owns three hundred and twenty acres, and that there is only about seventy inches of water supplied by the springs. And even if he had not actual acreage sufficient to cover the entire seventy inches, he would have the right to increase his acreage from year to year, which the evidence all shows they were doing. (Conant v. Jones, 3 Idaho 606, 32 P. 250; Hindman v. Rizor, 21 Or. 112, 27 P. 13; Simmons v. Winters, 21 Or. 35, 28 Am. St. Rep. 727, 27 P. 7.) The plaintiff derives no benefit whatever from any use that was made prior to his entry upon the land, and took no rights by reason of any oral transfer made by Carpenter; in fact there was not even an oral transfer. Carpenter simply relinquished to the government and Neiswanger went upon the land. (McGinnis v. Stanfield, ante, p. 372, 55 P 1020; Ada Co. Irr. Co. v. Farmers' Canal Co., 5 Idaho 791, 51 P. 990.) One of the controlling features of this case is that the defendant Neiswanger took all his alleged rights with the positive notice that every inch of that water which the spring supplied had been actually appropriated and claimed for the Dorsey ranch alone. This point is illustrated in the case below. (Last Chance Co. v. Bunker Hill Co., 49 F. 430.) Neiswanger could acquire no rights until his entry, February 8, 1898. (Rourke v. McNally, 98 Cal. 291, 33 P. 62; Atherton v. Fowler, 96 U.S. 513; Denver v. Mullen, 7 Colo. 345, 3 P. 693; St. Onge v. Day, 11 Colo. 368, 18 P. 278; Quimby v. Conland, 104 U.S. 420; Durand v. Martin, 120 U.S. 366, 7 S.Ct. 587.) The right to water acquired by prior appropriation is not dependent upon the place where the water is used. A party having obtained a prior right to the use of a given quantity of water is not restricted in such right to the use or place to which it was first applied. (Union Mill Co. v. Danbury, 81 F. 155; Hobart v. Wyck, 15 Nev. 418; Ramelli v. Irish, 96 Cal. 214, 31 P. 41; Davis v. Gale, 32 Cal. 27, 91 Am. Dec. 554.) A party need not apply all the water sought to be appropriated or diverted the first year. He may add from year to year acreage of his cultivated land and increase his application of water thereto as necessity may demand and his abilities permit, until he has put into beneficial use the entire amount of water at first diverted. (Conant v. Jones, 3 Idahe, 606, 32 P. 250.) Original appropriation may be made with reference to the amount of water that is needed to irrigate the lands he desires to put into cultivation. (Simmons v. Winters, 21 Or. 35, 28 Am. St. Rep. 727, 27 P. 7; Pomeroy on Riparian Rights, sec. 47.)

Hawley & Puckett and J. H. Richards, for Respondents, cite no authorities on the points decided not cited by appellant.

HUSTON, C. J. Quarles and Sullivan, JJ., concur.

OPINION

HUSTON, C. J.

This action was brought by the plaintiff to settle the right to certain waters to which both plaintiff and defendants assert claims. From the judgment of the district court, as well as from the order denying a new trial, plaintiff appeals.

The district court finds that the plaintiff and his predecessors in interest own and have been in possession of three hundred and twenty acres of land, as claimed in his complaint; that the same have been owned and possessed by plaintiff and his predecessors in interest since 1870; that in 1870 the predecessor in interest of the plaintiff appropriated forty inches of the waters in dispute, and diverted them to and upon the said lands. Said court also finds that in the month of May, 1893, the predecessor in interest of the defendants appropriated twenty-five inches of said water for use upon the lands owned by them, and the judgment of the district court is based upon such findings. It seems from the evidence that the water in question flows from certain springs upon the land of the defendant Jones, lying adjacent to the lands of plaintiff, but which lands were a part of the public domain at the time the predecessors of the plaintiff located and appropriated said waters. It appears that from 1870 until 1897 the plaintiff and his predecessors in interest used the entire volume of water flowing from said springs in irrigating the lands cultivated by them, but that--as very frequently occurs in this country--the lines of survey not yet being established, or, if established, not clearly understood, the plaintiff's predecessors had conducted a part of said waters upon some adjoining land not included in the tract owned by them. The tract so included (as shown by the map in evidence) amounted to something over twenty acres and is a part of the tract of land now owned by the defendants, and of which their predecessor became possessed in 1893. There is no question but the running of the waters upon the lands now owned by the defendants...

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10 cases
  • Pioneer Irr. Dist. v. American Ditch Ass'n, 5445
    • United States
    • United States State Supreme Court of Idaho
    • June 2, 1931
    ...this court and courts of other states adhering to our theory of water rights. (Conant v. Jones, 3 Idaho 606, 32 P. 250; Mahoney v. Neiswanger, 6 Idaho 750, 59 P. 561; Hall v. Blackman, 8 Idaho 272, 68 P. Sandpoint Water etc. Co. v. Panhandle Dev. Co., 11 Idaho 405, 83 P. 347; Brown v. Newel......
  • Basinger v. Taylor
    • United States
    • United States State Supreme Court of Idaho
    • April 3, 1917
    ...the fact that they actually applied the water to lands different than those described in the permit would be immaterial. (Mahoney v. Neiswanger, 6 Idaho 750, 59 P. 561.) Under the statute the state engineer has authority to grant certificate of completion of works for lands different from t......
  • Hall v. Blackman
    • United States
    • United States State Supreme Court of Idaho
    • January 31, 1902
    ...... to the location of his boundary lines, used a portion of such. water upon other lands than his own." ( Mahony v. Neiswanger, 6 Idaho 750, 59 P. 561.) "Possessory. rights to rights of way for irrigating ditches and the right. to the use of water may each have an ......
  • Zezi v. Exta Lightfoot, 6343
    • United States
    • United States State Supreme Court of Idaho
    • May 6, 1937
    ...... the water up and used it through the "Mountain. Ditch" on the "Theron" claims. (Mahoney. v. Neiswanger, 6 Idaho 750, 59 P. 561; Hard v. Boise. City Irr. & Land Co., 9 Idaho 589, 76 P. 331, 65 L. R. A. 407; Joyce v. Murphy Land etc. ......
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