Marshall v. Niagara Springs Orchard Co., Ltd.

• Decision Date: 08 June 1912
• Citation: 22 Idaho 144,125 P. 208
• Parties: FRANK MARSHALL, Respondent, v. NIAGARA SPRINGS ORCHARD COMPANY, LIMITED, Appellant
• Court: Idaho Supreme Court

125 P. 208

22 Idaho 144

FRANK MARSHALL, Respondent, v. NIAGARA SPRINGS ORCHARD COMPANY, LIMITED, Appellant

Supreme Court of Idaho

June 8, 1912

APPLICATION FOR PERMIT TO APPROPRIATE WATER-PERMIT-ENTRY UPON PRIVATE LAND-TRESPASS-APPROPRIATION OF WATER-RIGHT OF APPROPRIATOR-CONDEMNATION.

(Syllabus by the court.)

1. Under the provisions of sec. 3253, Rev. Codes, an application to the state engineer for permit to appropriate water is required to state facts which can only be secured by entrance to the place where the appropriation is made, and survey of the premises and surroundings at the point of diversion and place of improvement, and also a survey of the realty to be taken for dams and ditches to be used in appropriating the water to a beneficial use.

2. An application for a permit to appropriate water under the provisions of sec. 3253 makes it necessary for a person intending to make an appropriation in accordance with the statute to go upon the ground immediately surrounding the point at which the diversion from the natural channel is to be made, for the purpose of securing and preparing data and plans and maps required by such application.

3. A permit issued by the state engineer to appropriate water from the public waters of the state is the consent given by the state that the applicant may proceed under the law and make an appropriation of the public waters. It is the initiation of the appropriation, but of itself is not an appropriation.

4. The entry upon private property for the purpose of investigation inspection and the making of surveys, plans and specifications for the purpose of making application for a permit does not necessarily result in the permanent taking of the real property of the owner, but it necessitates the entry upon such land, and the right to enter upon such land must be secured either by agreement of the parties or by condemnation proceedings, and without such remedy being pursued, the entry, if made, is a trespass.

5. The constitution and laws of this state specifically recognize the right to divert and appropriate the unappropriated waters of any natural stream to a beneficial use, and that such right shall never be denied, but this does not mean that a person is given the right to go upon private property of another for the purpose of making an appropriation, without the license or consent of the owner, or before such right is acquired by proceedings for condemnation.

6. Where N. S. O. Co. owns all the lands on both sides of the channel of water from the place the water comes from the rimrock until the channel ends and the water empties into another stream, it is the right of N. S. O. Co., by reason of its ownership of the land, to have exclusive possession of said land, and such owner is protected against any right that is attempted to be acquired by trespass on such land in the way of an attempt to appropriate the waters running across said land.

APPEAL from the District Court of the Fourth Judicial District for Lincoln County. Hon. Edward A. Walters, Judge.

Action to condemn a right of way for a ditch and powerhouse and other buildings to be used for power purposes. Reversed.

Judgment reversed, and the costs awarded to the appellant.

Richards & Haga, for Appellant.

An appropriation of water upon private land cannot be initiated by trespass, and any such attempted appropriation is void as against the land owner whose land is trespassed upon. (Wiel on Water Rights, 3d ed., sec. 221, and cases cited; Prentice v. McKay, 38 Mont. 114, 98 P. 1081; Smith v. Denniff, 24 Mont. 20, 81 Am. St. 408, 60 P 398, 50 L. R. A. 741; Le Quime v. Chambers, 15 Idaho 405, 98 P. 415, 21 L. R. A., N. S., 76; Curtis v. La Grande Water Co., 20 Ore. 34, 23 P. 808, 25 P. 378, 10 L. R. A. 484; Mud Creek Irr. & M. Co. v. Vivian, 74 Tex. 170 11 S.W. 1078.)

The United States, by secs. 2339 and 2340, Rev. Stats., only gave the public a license to enter upon its lands for the purpose of making appropriations; and the state, by its constitution and statutes, has only granted the public a license to go upon state lands for such purpose. (Sturr v. Beck, 133 U.S. 541, 10 S.Ct. 350, 33 L.Ed. 761; Benton v. Johncox, 17 Wash. 277, 61 Am. St. 912, 49 P. 495, 39 L. R. A. 107; Cruse v. McAuley, 96 F. 369; Gould, Waters, sec. 240; McGuire v. Brown, 106 Cal. 660, 39 P. 1060, 30 L. R. A. 384; Brosnan v. Harris, 39 Ore. 148, 87 Am. St. 649, 65 P. 867, 54 L. R. A. 628; Rasmusson v. Blust, 85 Neb. 198, 133 Am. St. 650, 122 N.W. 862; Maffett v. Quine, 93 F. 347, and cases cited supra.)

Bowen, Porter & Stockslager, for Respondent.

An appropriation or right to appropriate can be made as well in privately owned lands as on public lands. (Long, Irrigation, sec. 28.)

No trespass has been made in this case,--the right to enter the land we seek by condemnation. (Idaho P. & T. Co. v. Stephenson, 16 Idaho 418, 101 P. 821.)

In Colorado it has been expressly held that water rights may be appropriated by a ditch through riparian private lands, which ditch was constructed without the consent of the owner and without obtaining a right to same by eminent domain. (Sternberger v. Power Co., 45 Colo. 401; 102 P. 168.)

The owner of riparian lands has no interest in the stream as against one appropriating same or one acquiring a lawful right to appropriate. (Wiel, Water Rights, 3d ed., secs. 221-233; Hutchinson v. Watson Slough Ditch Co., 16 Idaho 485, 133 Am. St. 125, 101 P. 1059.)

He must obtain that easement and right of way either by purchase or condemnation. (Swank v. Sweetwater Irr. Co., 15 Idaho 354, 98 P. 297.)

Before respondent could apply his water to a beneficial use, he must obtain lawful rights of entry upon appellant's land, and it was to secure such lawful right of entry that respondent brought this action. What the effect of a trespass might be is not involved herein. (Sternberger v. Seaton Mt. Co., 45 Colo. 401, 102 P. 168.)

STEWART, C. J. Ailshie and Sullivan, JJ., concur.

OPINION

STEWART, C. J.

Frank Marshall, the respondent, brought this action in the district court against Winia Smalley, Henry Smalley, John R. Newton and Samuel T. Hamilton for the purpose of condemning a right of way for a ditch and power-house and other buildings required in connection therewith across the land asked therewith. The land across which such right of way is asked is described as follows: Lot 3 of sec. 11 and Lot 1 of sec. 10, Twp. 9 S., Range 15 E. The defendants named in the complaint did not appear in said action, but the appellant herein, the Niagara Springs Orchard Company, Ltd., applied to be made a party defendant, and was permitted to do so, and filed an answer setting forth that said defendant was the owner of the property described in the complaint, the same having been transferred, to wit, by the defendants named in the complaint.

The cause was tried to the court and findings of fact, conclusions of law and a decree were entered in favor of the plaintiff, and the trial court adjudged the condemnation of a strip of land described by metes and bounds, and a part of the property described in the complaint, and assessed the damages for the same. From such judgment this appeal was taken.

It appears from the record in this case that the title to the property described in the complaint, part of which is involved in this action, was granted by the United States, by patent, to the predecessors in interest of the appellant, January 17, 1895, and December 1, 1897, and that the title thus acquired, by proper conveyance passed to the appellant on January 9, 1911. It also appears that lot 1 of said sec. 10 and lot 3 of sec. 11 extend from the north shore or water line of Snake river to the line lying upon the lands which extend from the top of the rimrock of Snake river, and said lands include a part of high lands at the top of the rimrock and all lands lying between the rimrock and the north shore of Snake river; that the waters of Smalley springs rise and emerge from the earth at the foot of the rimrock and wholly and entirely are within lots 1 and 3, and no part or portion of the springs or waters or streams is outside of lots 1 and 3.

It also appears that respondent made application to the state engineer for a permit to appropriate the waters flowing from Smalley springs and the natural stream of water leading therefrom, all situated and being upon the lands described in the complaint, and that the state engineer granted such permit in accordance with the application of plaintiff and the laws of the state of Idaho relating thereto, and it was issued to him for power purposes for the purpose of creating power for lighting, heating, manufacturing and motive power. This permit of the state engineer was dated August 30, 1909, and was granted upon a condition inserted in such permit as follows: "This is to certify that I have examined the within application for a permit to appropriate the public waters of the state of Idaho and hereby grant the same, subject to the following limitations and conditions . . . . good and sufficient bond to be filed in the sum of one thousand dollars ($ 1,000) on or before October 29, 1909." The bond thus provided for in the permit was not filed with the state engineer until December 17, 1909, forty-nine days after the expiration of the time allowed by the permit and also by sec. 3254 of the Rev. Codes.

The question presented on this appeal, and upon which a reversal is asked, is: Can an appropriation of water upon private land be initiated by a trespass upon private property, and is the attempted appropriation void as against the land owner whose land has been trespassed upon?

It is the contention of the appellant that the action to condemn land for a power site, as alleged in the...