Mellen v. Great Western Beet Sugar Co.

• Decision Date: 14 February 1912
• Citation: 21 Idaho 353,122 P. 30
• Parties: THOMAS MELLEN et al., Respondents, v. GREAT WESTERN BEET SUGAR CO. et al., Respondents, and D. C. BRADLEY et al., Appellants
• Court: Idaho Supreme Court

122 P. 30

21 Idaho 353

THOMAS MELLEN et al., Respondents, v. GREAT WESTERN BEET SUGAR CO. et al., Respondents, and D. C. BRADLEY et al., Appellants

Supreme Court of Idaho

February 14, 1912

WATER RIGHTS-PRIORITY OF WATER RIGHT-CONSTITUTIONAL CONSTRUCTION-SETTLEMENT AND IMPROVEMENT-ABANDONMENT OF RIGHT.

(Syllabus by the court.)

1. Under the provisions of sec. 5, art. 15, of the constitution whenever more than one person has settled upon or improved land with a view of receiving water for agricultural purposes under a sale, rental or distribution thereof, as among such persons priority in time gives superiority of right.

2. The settlement or improvement upon land with a view to receiving water for agricultural purposes, as provided for in sec. 5 art. 15, of the constitution, means an actual settlement or an actual improvement thereon, and a constructive settlement will not meet the purpose or requirements of the constitution.

3. One who purchases a water right from a canal or ditch company that has made its appropriation for the purposes of sale rental or distribution thereof, acquires no priority until he complies with the provisions of sec. 5 art. 15, of the constitution and settles upon or improves the land with a view of receiving water for agricultural purposes, and when he does so settle upon land or improve it with diligence and good faith, he is entitled to have his priority date from the time of making such settlement or beginning such improvement.

4. One who actually settles upon or improves land lying under a canal or irrigation ditch with a view to receiving water therefrom for agricultural purposes, is entitled to a priority over one who has previously purchased a water right from such canal company but who has failed to either settle upon or improve the land as required by the provisions of sec. 5, art. 15, of the constitution.

5. Where a land owner has appropriated and diverted water from a natural stream for the irrigation of his land and thereafter enters into an agreement with an irrigation company, whereby he consents and agrees to relinquish and waive his water right from the stream and allow the irrigation company to collect the waters of the stream into reservoirs, and the company agrees in consideration thereof to deliver water to such land owner from the reservoirs and canal system, the priority of the original appropriator should properly date from the time of his first appropriation, diversion and application of the water to a beneficial use.

6. Evidence examined and held that although conflicting, there is sufficient evidence in the record to support a finding that certain appropriators of water from a natural stream had abandoned their water rights and ceased to use and apply the water to a beneficial purpose.

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

Action to have determined and decreed certain water rights and the priorities to the use of the waters from the Great Western Beet Sugar Company's irrigation system. From a judgment and decree certain defendants appeal. Affirmed.

Judgment affirmed. Costs awarded in favor of respondents.

W. C. Howie, for Appellants.

Persons entitled to the use of water may change the place of diversion or place where it was used. (Wilterding v. Green, 4 Idaho 773, 45 P. 134; Ramelli v. Irish, 96 Cal. 214, 31 P. 41; Hard v. Boise City Irr. & Land Co., 9 Idaho 589, 76 P. 331, 65 L. R. A. 407.)

Waters appropriated for agricultural purposes under a sale or rental are deemed exclusively dedicated to such use, and when once sold or rented to a person settling upon land for agricultural purposes with a view of receiving such water, such person cannot thereafter be deprived of the annual use of the same when needed on compliance with the equitable terms as to the quantity used and times of use. (Gerber v. N. & M. Irr. Dist., 16 Idaho 1, 100 P. 80.)

Settlement dates from the time the applicant determined to settle on the land at the time he examined the boundaries. (McDonald v. Taylor, 89 Cal. 42, 26 P. 595.)

W. C. Howie, and Richards & Haga, for Appellant Bradley.

This court in interpreting such contracts has held them binding, and further held that the company must recognize them and furnish water to the water right holders thereunder. (More v. Elmore County Irr. Co., 3 Idaho 729, 35 P. 171; Bray v. Elmore County Irr. Co., 4 Idaho 685, 44 P. 432.)

Abandonment is purely a question of intent coupled with an actual relinquishment of the right. (Welch v. Garrett, 5 Idaho 639, 51 P. 405, 19 Morr. Min. Rep. 193; Miller v. Wheeler, 54 Wash. 429, 103 P. 641, 23 L. R. A., N. S., 1065.)

Throughout the testimony there is ever present and clearly manifested on the part of appellant and his predecessors in interest a determination and intention to at all times protect and claim the amount of water originally appropriated for these lands and the rights which these lands had acquired to the use of water from he reservoir system under the agreements above referred to. (Conant v. Jones, 3 Idaho 606, 32 P. 250; Hall v. Blackman, 8 Idaho 272, 68 P. 19.)

J. G. Watts, for Respondents.

The purpose of the appropriator is shown by his acts and by the circumstances surrounding his possession of the water. (Toohey v. Campbell, 24 Mont. 13, 60 P. 396.)

To entitle one to a decree of priority as provided in sec. 5, art. 15 of the constitution, two steps must be taken: first, the land owner must, by contract with the company, acquire a right to the use of water from the system; second, he must, by settlement or improvement, actually dedicate the water to his land. (Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 P. 81; Combs v. Agricultural Ditch Co., 17 Colo. 146, 31 Am. St. 275, 28 P. 966; Hard v. Boise City Irr. & Land Co., 9 Idaho 602, 76 P. 331, 65 L. R. A. 407.)

Wyman & Wyman, and Martin & Martin, for certain Respondents, cite no authorities on points decided.

AILSHIE, J. Stewart, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

This action was instituted for the purpose of determining the respective rights of the parties to the use of water from a reservoir system in Elmore county known as the Great Western Beet Sugar Co. system, supplied by three reservoirs impounding waters in what are known as Little Camas, Long Tom and Rattlesnake reservoirs, and to determine the respective priorities of the parties to the use of water from that system.

It appears that the Rattlesnake reservoir was built in the years 1891 and 1892, and that the Long Tom reservoir was built in 1906 and the Little Camas reservoir at a still later date. Certain of the defendants have appealed from the judgment and decree, presenting two classes of claimants to the use of water from the irrigation system. It seems that prior to the construction of any of these reservoirs there were certain entrymen, living along what is known as Canyon creek, and who had appropriated water from that stream and Rattlesnake creek dating as far back as 1883, who had from time to time diverted water from the streams for the purpose of irrigating and flooding their lands for raising wild hay and grasses. The irrigation which had been carried on by these people was done by means of dams in the streams and diverting water into ditches and furrows which carried it out over the grass and hay lands, in varying amounts and covering varying areas from year to year up to the time of the building of the first reservoir. In the springtime a considerable volume of water came down this stream, but later in the season, as early as June or the first of July, the water would become so low that very little, if any, reached the lands now owned by the appellants. This was due chiefly to the fact that after leaving the mouth of the canyon the water had to flow down over a sandy, gravelly and porous formation for a number of miles before reaching the lands to be irrigated, and as a consequence seepage, percolation and evaporation consumed practically all the water of the stream during the hot summer months. When the original promoter of the reservoir and irrigation system started upon the construction of the reservoir system, he entered into an agreement with the owners of these lands to the effect that they should surrender and release all their right, title or interest in and to the waters of this stream, and in consideration thereof the company, known as the Elmore County Irrigation Co., should furnish them perpetual water rights for their lands. While the contract did not recite the extent of the water right the land owners were relinquishing, nor did it describe the extent of the perpetual water right to be received, the only rational and just conclusion to be gathered from that contract is that the land owners were to receive water for the irrigation of the same lands that they had previously irrigated from the natural stream, and that this contract was made only for the purpose of enabling the reservoir company to collect all the waters flowing in the stream instead of allowing them to run down the stream during the flood season, and in consideration thereof they should furnish water through the canal system sufficient to irrigate the same lands which had previously been irrigated from the waters of the stream.

The second class of appellants here are those who purchased water rights from this new reservoir and irrigation company. We shall deal with this latter class of appellants first. They were among the first purchasers of water rights from the irrigation company, but they did not actually settle upon or improve their lands until after subsequent claimants to water rights entered upon their lands, cleared them and diverted and applied...