Malad Valley Irrigating Company v. Campbell

• Decision Date: 20 February 1888
• Citation: 2 Idaho 411,18 P. 52
• Parties: MALAD VALLEY IRRIGATING COMPANY v. CAMPBELL
• Court: Idaho Supreme Court

18 P. 52

2 Idaho 411

MALAD VALLEY IRRIGATING COMPANY v. CAMPBELL

Supreme Court of Idaho

February 20, 1888

PRIOR APPROPRIATION OF WATER.-Prior appropriation of all the waters of a stream applied to a useful purpose gives the better right to the tributaries and all the direct and immediate sources of supply of the stream, and when this right once vests it must be protected and upheld.

SPRINGS-SOURCES OF SUPPLY.-Rights cannot be acquired to the waters of springs situate along the channel of a stream, and which constitute its direct source of supply, by entering upon, cleaning out and thereby increasing the water supply, as against prior appropriators in good faith, of the whole of the waters of the stream.

QUERY.-WHETHER ONE CAN bring water from another independent source into a natural stream, whose waters have been appropriated, and use the channel of such stream to conduct the water thus brought into another point, to be there diverted and used. Suggested but not decided.

(Syllabus by the court.)

APPEAL from District Court, Oneida County.

Affirmed.

D. W Standrod and J. T. Morgan, for Appellant.

He who first appropriates the water of a stream, and connects his labor therewith for a beneficial use, is entitled to the same against the world. (Atchison v. Peterson, 20 Wall 507, 514 et seq.; Basey v. Gallagher, 20 Wall. 671, 682; Tartar v. Mining Co., 5 Cal. 397; U. S. Rev. Stats., sec. 2339.) One who increases the flow of water in a stream by digging out springs, or turning in another stream may appropriate such increase to his own use. (Keeney v. Carillo, 2 N.M. 490; Butte Canal etc. Co. v. Vaughn, 11 Cal. 143, 70 Am. Dec. 769; Burnett v. Whitesides, 15 Cal. 35; Idaho Rev. Laws, sec. 3158.) Adverse user of water stands upon the same footing as that respecting the adverse user of land, and the reasoning which will sustain the one will likewise uphold the other. (Vansickle v. Haines, 7 Nev. 250; Crandall v. Woods, 8 Cal. 144.)

Smith & Smith, for Respondent.

Where a person has conducted some water to a stream, he will be restrained, at the suit of the owner of the water of the stream, unless the former can show that he has not diverted more water from it than he led to it. (Budd v. Railway Co., 15 Or. 404, 15 P. 654; Wilcox v. Hausch, 64 Cal. 461, 3 P. 108.) This general right over the stream of the party who has perfected a prior appropriation is that the water of the stream should continue to flow in its usual manner, through the natural channel or bed of the stream, down to the head of his ditch, or to the point where his own actual dominion over it commences, to the extent or amount of his appropriation, without diversion or material interruption. (Pomeroy's Riparian Rights, Black's ed., sec. 60; Lower Kings River etc. Ditch Co. v. Kings River etc. Canal Co., 60 Cal. 408; Lorenz v. Jacobs (Cal.), 3 P. 654; Mining Co. v. Hoyt, 57 Cal. 44; Barnes v. Sabron, 10 Nev. 217; Water Co. v. Fletcher, 23 Cal. 481; James v. Williams, 31 Cal. 211; Feliz v. City of Los Angeles, 58 Cal. 73.)

BRODERICK J. Hays, C. J., and Buck, J., concurring.

OPINION

BRODERICK, J.

This action was brought by the Malad Valley Irrigating Company against Nephi Campbell, in the district court in and for Oneida county, to-determine the right to the possession and use of the waters of a certain stream in said county, known as "Campbell creek," and to restrain the defendant from diverting or interfering with the use and enjoyment of the same. The complaint alleges that the plaintiff is a corporation, and is the owner of and entitled to the control and use of all the waters of a certain stream known as "Devil creek," situated in said county, together with all its tributaries; that it and its predecessors in interest have for a long number of years owned controlled, used, and enjoyed said waters, and peaceably distributed the same among the farmers and residents along said stream for the irrigation of agricultural crops. It is further alleged "that the defendant on or about the first day of June, 1885, wrongfully and unlawfully, and without color of right or title, without the consent of plaintiff, and against its will, did enter upon one of the tributaries of said Devil creek, to wit, the stream known as 'Campbell creek,' and which enters said Devil creek on the premises of the defendant, and did wrongfully and unlawfully construct certain dams, ditches, and flumes, and did divert the whole of the waters of said Campbell creek, and has ever since continued to divert said waters, and that plaintiff, by said wrongful acts of the defendant, has been, during the whole of said time, deprived of the use of all the waters of said stream, to the great and irreparable injury of this plaintiff." The defendant answered, specifically denying the allegations of the complaint; and, as a further defense, alleges that in the year 1877 he went upon the stream known as "Campbell creek," and appropriated all the waters of said creek, by constructing dams, cleaning and digging out springs, clearing brush, and diverting the whole of said waters from their natural channel, and using the same for the purpose of agriculture, etc.; that, at the time the whole of said stream ran to waste, and was entirely unappropriated; that, since the appropriation of said waters in the year last aforesaid, this defendant has continuously used said waters for the purpose of irrigating his crops. The defendant then pleads in bar the statute of limitations. At the November, 1886, term of said court, the cause was tried without a jury, and the following are the findings of fact and conclusions of law made and filed therein: "1. It is found that the plaintiff and its predecessors in interest have for about twenty years used and enjoyed the waters of the stream known as 'Devil creek,' in Oneida county, Idaho, for the irrigation of agricultural crops; 2. That plaintiff was incorporated in April, 1882; all parties owning water rights in Devil creek, including the defendant, joining in such corporation; 3. That Campbell creek is a tributary of Devil creek, entering said stream above the dam at which plaintiff's grantors originally appropriated the waters of Devil creek; 4. That for the last three years the defendant has, at times, set up some claim to the right to the...