Martiny v. Wells

• Citation: 419 P.2d 470,91 Idaho 215
• Decision Date: 24 October 1966
• Docket Number: No. 9866,9866
• Parties: Gilman MARTINY and Grace Martiny, husband and wife, Plaintiffs-Appellants, v. Arthur WELLS, Defendant-Respondent.
• Court: United States State Supreme Court of Idaho

Page 470

419 P.2d 470

91 Idaho 215

Gilman MARTINY and Grace Martiny, husband and wife, Plaintiffs-Appellants, v. Arthur WELLS, Defendant-Respondent.

No. 9866.

Supreme Court of Idaho.

Oct. 24, 1966.

Furchner, Anderson & Beebe, Blackfoot, Fred H. Snook, Salmon, for appellants.

Sherman F. Furey, Jr., Salmon, for respondent.

TAYLOR, Justice.

At the times here involved both parties were owners of rights to the use of water for irrigation from Spring Creek, in Lemhi County. Both rights were adjudicated by the Morrow-Wagoner decree in 1910. The right held by plaintiffs (appellants) was decreed to have priority date of February 10, 1893, and the right held by defendant (respondent) was decreed to have a priority date of July 15, 1900.

Plaintiffs brought this action for damages resulting from defendant's alleged interference with plaintiffs' water right and to enjoin future interference therewith.

Running generally from southeast to northwest and roughly parallel to a bluff a short distance to the northeast, Spring Creek traverses a marshy, swampy area and is fed by springs on both sides. Mr. Wells' ditch also extends from the southeast to northwest, and lies between Spring Creek and the bluff roughly parallel to the creek, and varying from one-eighth to one-quarter mile distant from the creek. The ditch draws water from springs upstream from plaintiffs' point of division of Spring Creek. Defendant Wells has no other diversion from Spring Creek.

The controlling issue presented on this appeal is whether the water from the springs, along the upper side of the Wells ditch, which flows into the ditch, is tributary to Spring Creek. Wells contends that the water diverted by his ditch is not tributary to Spring Creek; that it is percolating water from the swampy, marshy area traversed by the ditch; that he and his predecessors had 'continuously, nortoriously, adversely, and under claim of right' recovered and used such water since 1900. He also alleged that if the water taken by means of his ditch wer not recovered and used by him, it would be wasted.

Among other things, the trial court found:

'10. Martiny was without water in May, 1960, and was short of his water right during the years 1960, 1961, 1962, and 1963. Said years were relatively dry years, and the water in the general area was less than normal.'

'18. The swamp area around the springs holds the water, and only a portion of the flow of the springs reaches Spring Creek.'

In its conclusions of law the court held:

'19. The best use of the water flowing from the springs and the swampy area around the Wells ditch is the collection of said water in the Wells ditch for irrigation of the property served by said ditch as aforesaid.'

'20. Martiny has no right to the water collected and flowing into the Wells ditch.'

In the judgment:

'3. Defendant is decreed to be the owner of up to 100 inches of water flowing in said Wells Ditch with priority date of 1910 for irrigation of the lands and premises hereinafter described and to which said lands, said water right is hereby made appurtenant.'

Plaintiffs' application for injunction was denied and plaintiffs were enjoined from interfering with the flow of 100 inches of water in the Wells ditch.

The evidence does not support the court's finding that the water collected by the Wells ditch was not tributary to Spring Creek. The record conclusively shows that the terrain involved slopes from the foot of the bluff on the northeast to Spring Creek on the southwest; that there are natural swales running from the springs below the bluff in a southwesterly direction to Spring Creek; that in the construction of the Wells ditch, dykes or levees were built across these swales which impound the water arising above the ditch and cause it to flow through the ditch to the northwest to defendant's land. In the absence of the Wells ditch, water from the springs above the ditch would follow the natural swales and, except for the part thereof lost by evaporation or percoliation in the swampy areas, would flow into Spring Creek. At times in the past some of these dykes have been perforated by muskrats and the water thus released flowed down these channels to Spring Creek. Twice one such dyke was cut by the watermaster and the water so released flowed to Spring Creek.

All of the witnesses who testified on the point, stated that in the absence of the Wells ditch, water from the springs above the ditch would flow into Spring Creek through the natural channels or swales. Plaintiff Martiny and his witnesses (five in all) were of the opinion that the water thus reaching Spring Creek from such springs would be substantial in volume. Two of defendant's witnesses thought the amount of such water reaching Spring Creek would not be appreciable. Defendant testified that in his opinion out of 100 inches flowing in his ditch, 25 to 30 inches would reach Spring Creek. And the court found that 'only a portion of the flow of the springs reaches Spring Creek.'

The record is thus conclusive that the water from the springs and swamps above the Wells ditch is tributary to Spring Creek; that the diversion accomplished by means of the ditch constitutes a diversion from Spring Creek, and the water flowing in the ditch to the extent of 100 inches is the water decreed to defendant's predecessors from Spring Creek by the Morrow-Wagoner decree.

A situation parallel to that here considered was discussed by the Colorado court in Ogilvy Irrigating & Land Co. v. Insinger, 19 Colo.App., 380, 75 P. 598, at 599 (1904), as follows:

'Appellee, however, insists that 'tributary' must be construed to mean 'a running natural stream which empties into another stream.' This limited definition of 'tributary' cannot be adopted. A condition of affairs can be conceived whereby an irrigating canal or ditch, without head gate or intake from a natural stream or tributary thereof, might be constructed parallel to a natural stream, or parallel to an existing canal or ditch, and thereby appropriate and divert large volumes of water which prior to its construction found their way, by seepage, drainage, and percolation, to the stream to the detriment and injury of appropriations prior to the construction of such canal or ditch. No case has been cited, and an exhaustive examination of the authorities has failed to disclose one, which holds that the limited construction of 'tributary' contended for by appellee is applicable to our irrigation laws, or that it must be alleged and proven that waters diverted by the junior appropriator constituted a running surface stream, within well-defined banks or channels. In McLellan v. Hurdle, 3 Colo. 430-434, 33 P. 280, 282, this court has said: 'It is probably safe to say that it is a matter of no moment whether water reaches a certain point by percolation through the soil, by a subterranean channel, or by an obvious surface channel. If by any of these natural methods it reaches the point, and is there appropriated in accordance with law, the appropriator has a property in it which cannot be diversted by the wrongful diversion by another, nor can there be any substantial diminution. To hold otherwise would be to concede to superior owners of land the right to all sources of supply that go to create a stream, regardless of the rights of those who previously acquired the right to the use of the water from the stream below.''

The evidence also fails to support a finding or judgment in favor of defendant based upon adverse use or laches. The evidence shows and the court found that plaintiffs' prior right was not interfered with until the spring of 1960. This action was commenced May 25, 1963. Hence, the requisite five years adverse use was not shown. The evidence on the part of defendant, that he and his...