McGinness v. Stanfield

• Decision Date: 30 December 1898
• Citation: 55 P. 1020,6 Idaho 372
• Parties: McGINNESS v. STANFIELD
• Court: Idaho Supreme Court

55 P. 1020

6 Idaho 372

McGINNESS v. STANFIELD

Supreme Court of Idaho

December 30, 1898

WATER RIGHTS-APPROPRIATION OF WATER-JURISDICTION OF COURTS.-In an action to settle the water rights of various parties upon a stream, the district court, after establishing the priorities of the various appropriators, proceeded to decree the times and the quantity which each appropriator was permitted to use of such waters; held, error, it not being the province of the court to dictate how or when the right acquired by the appropriator should be exercised, so long as such use was within the limits of his appropriation.

VERBAL CONTRACT-ADMISSIBILITY IN EVIDENCE.-Under the statutes of Idaho, a verbal contract for the sale or transfer of real estate is not admissible in evidence against a stranger to such contract.

(Syllabus by the court.)

APPEAL from District Court, Elmore County.

Reversed and remanded, with instructions.

N. M Ruick and F. E. Ensign, for Appellants.

This suit was instituted for the purpose of establishing the respective priorities of right to the use or the waters of Cold Spring creek in Elmore county. The judgment should not be upheld, inasmuch as it is in violation of the plain provisions of the statutes of this state enacted in 1881 (Laws 11th Sess., p. 267), and continued in force in the Revised Statutes, sections 3155, 3159 and 3165. (Hillman v. Hardwick, 3 Idaho 255, 28 P. 438; Geertson v Barrack, 3 Idaho 344, 29 P. 42; Kirk v Bartholomew, 3 Idaho 367, 29 P. 40.) The verbal sale by Stover and Montgomery of the improvements on the Cold Spring ranch, if it applied to the water right used therewith, did not operate to transfer any right whatsoever to the prior use of such water, but amounted to an express abandonment of such water right. (Kinney on Irrigation, secs. 253, 264; Hill v. Newman, 5 Cal. 445, 63 Am. Dec. 140; Smith v. O'Hara, 43 Cal. 371, 376; King's River Ditch Co. v. Canal Co., 60 Cal. 408; Barkley v. Tiekele, 2 Mont. 59.) Prior to the enactment of any law of the territory of Idaho Congress had recognized the existence of rights to the use of water acquired by priority of possession, and for a time prior thereto, as well as since, water rights have been regarded as real estate or an interest in real estate to be conveyed by an instrument in writing only. It was so decided in California as early as 1855. (Hill v. Newman, 5 Cal. 445, 63 Am. Dec. 140; Lobdell v. Hall, 3 Nev. 507; Barkley v. Tiekele, 2 Mont. 59.)

Hawley & Puckett, for Respondents.

Counsel for appellant say that the court cannot decree, in the absence of a statute conferring such powers, that a claimant who has established a priority shall make use of said right at certain seasons only. We urge that the courts not only have such power, but that it is their duty, to limit the use to certain seasons in certain cases. (Eddy v. Simpson, 3 Cal. 249, 58 Am. Dec. 408; Nevada Water Co. v. Powell, 34 Cal. 109, 91 Am. Dec. 685; Ortman v. Dixon, 13 Cal. 36; Lobdell v. Simpson, 2 Nev. 274, 90 Am. Dec. 537.) The rights of each appropriator are to be determined by the condition of things at the time he makes his appropriation. So far is this rule carried that those who were prior to him can in no way change in extent their use to his prejudice, but are limited to the right enjoyed by them when he secured his. (Proctor v. Jennings, 6 Nev. 87, 3 Am. Rep. 240. To the same effect are Cole v. Logan, 24 Or. 304, 33 P. 568; Ramelli v. Irish, 96 Cal. 214, 31 P. 41; Gallaher v. Montecito V. W. Co., 101 Cal. 242, 35 P. 770; McGuire v. Brown, 106 Cal. 660, 39 P. 1060; Roeder v. Stein, 23 Nev. 92, 42 P. 867.) Can a water right be transferred by oral sale? A right which secures to the owner of a tract of land water for irrigating or other purposes necessary to the enjoyment of the land becomes appurtenant to said land and passes by a conveyance thereof. (Cane v. Crafts, 53 Cal. 135; Farmer v. Ukiah Water Co., 56 Cal. 11; Standart v. R. V. Water Co., 77 Cal. 399, 19 P. 689; Cross v. Kitts, 69 Cal. 217, 58 Am. Rep. 558, 10 P. 409.)

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

OPINION

HUSTON, J.

This action was brought to settle the rights of the various parties thereto to the waters of Cold Spring creek, in the county of Elmore. The case was heard by the court without a jury, and to the decree entered by the court the appellants take certain exceptions, and the same are brought to us by this appeal for review.

In its findings of fact, the court, after finding the date of the appropriation of water by the various parties, and the amount appropriated by them severally, proceeds to declare the amount to be used on each several tract, and the time when the same may be used, and it is to this action of the court that the first exception of the appellants goes. Counsel for appellants contend that when the court had found the fact of appropriation, and had fixed the question of priority and extent of appropriation between the various claimants, its powers ceased. Section 3155 of the Revised Statutes of Idaho is as follows: "The right to the use of running water flowing in a river, or stream, or down a canyon or ravine, may be acquired by appropriation." Section 3159 is as follows: "As between appropriators, the one first in time is the first in right." Section 3165: "All ditches, canals, and other works heretofore made, constructed or provided, by means of which the waters of any stream have been diverted and applied to any beneficial use, must be taken to have secured the right to the waters claimed, to the extent of the quantity which said works are capable of conducting, and not exceeding the quantity claimed, without regard to or compliance with the requirements of this chapter." These sections of the Revised Statutes have been several times passed upon and construed (if any construction was required) by this court. (See Hillman v. Hardwick, 3 Idaho 255, 28 P. 438; Geertson v. Barrack, 3 Idaho 344, 29 P. 42; Kirk v. Bartholomew, 3 Idaho 367, 29 P. 40.) Priority of appropriation having been established, as well as the amount of the water appropriated, and the beneficial use thereof, it seems to us that the functions of the court under the statute have reached their limit. For the court to dictate the manner in which the appropriator shall use the water so appropriated, so long as it is adapted to a useful or beneficial purpose, is going beyond its province. It is an interference with the right conferred by the statute. We have examined the cases cited by counsel for respondents, but we are unable to see their applicability to the case at bar, or wherein they conflict with the rule heretofore laid down by this court.

The district court finds in its fourth finding of fact: "That lands upon which wild hay is raised, or which are irrigated for pasture only, do not require, in the vicinity of Cold Spring creek, water to be used thereon later than July 1st of each year." The only evidence we find in the record upon this subject is found in folio 276 of the record, and is as follows: "It has been the custom of the plaintiffs and of the other parties to this suit using water for irrigation from the stream to turn the...