Minnie Schodde v. Twin Falls Land Water Company

• Decision Date: 01 April 1912
• Docket Number: No. 2,2
• Citation: 224 U.S. 107,56 L.Ed. 686,32 S.Ct. 470
• Parties: MINNIE SCHODDE, Executrix of Henry Schodde, Deceased, Petitioner, v. TWIN FALLS LAND & WATER COMPANY
• Court: U.S. Supreme Court

224 U.S. 107

32 S.Ct. 470

56 L.Ed. 686

MINNIE SCHODDE, Executrix of Henry Schodde, Deceased, Petitioner,

v TWIN FALLS LAND & WATER COMPANY.

No. 2.

Argued March 7 and 8, 1911.

Decided April 1, 1912.

Messrs. Kirtland I. Perky, Joseph R. Webster, and John F. MacLane for petitioner.

[Argument of Counsel from pages 107-112 intentionally omitted] Messrs. Edward B. Critchlow and William J. Barrette for respondent.

[Argument of Counsel from pages 112-114 intentionally omitted] Mr. Chief Justice White delivered the opinion of the court:

Since the writ of certiorari in this case was granted, the petitioner died, and his executrix was substituted. The writ was allowed to enable us to review the action of the court below in affirming a judgment of the circuit court of the United States for the district of Idaho. The judgment of the circuit court sustained a demurrer to the complaint of the petitioner, who was plaintiff, on the ground that it stated no cause of action. An absolute judgment of dismissal was entered, consequent on the election by the plaintiff to stand on the complaint as filed. The court below summarized the averments of the three counts of the complaint, and as that summary accurately and sufficiently states the case, we adopt and reproduce it, as follows:

'Plaintiff's complaint contains three counts. Briefly stated, the cause of action as set out in the three counts of the complaint is as follows: Plaintiff is the owner of three tracts of land on the banks of Snake river, containing in the aggregate 429.96 acres. Two of these tracts, comtaining 263.96 acres, are on the south bank, and one tract of 160 acres is on the north bank. One of the tracts on the south bank is agricultural land and the other is partly agricultural land and partly mining ground. The tract of land on the north bank is agricultural. In the year 1889 plaintiff's predecessors in interest, and in 1895, the plaintiff himself, appropriated certain quantities of water of the flow of Sanke river for use on said lands. In the first count the quantity is stated in cubic feet per second; in the second and third counts the quantities are stated in miner's inches. The aggregate of water appropriated as alleged in the three counts is referred to in the briefs as 1,250 miner's inches. Soon after this water was appropriated the parties in interest erected water wheels in the river to lift the water to a sufficient height for distribution over the land. Nine of these wheels were erected opposite or near the tracts on the south side of the river, and two near the tract on the north side of the river. These wheels vary in height from 24 to 34 feet. The parties also constructed wing dams in the river, adjoining or in front of the lands owned by them, for the purpose of confining the flow of the water of the river, and raising it at such points above the natural flow of the river, so that the current would drive the water wheels and cause them to revolve and carry the water in buckets attached to the wheels to a height where it would be emptied into flumes and distributed over the lands by ditches, and used thereon to irrigate and cultivate the agricultural land and work the mining ground. It is not alleged in the complaint, but it is assumed, that the river at this point runs between high banks, and that the water is lifted by the wheels at least 20 feet before it is emptied into the flumes for distribution over plaintiff's lands. In the year 1903, while plaintiff was using the appropriated water of the river upon the described premises, the defendant commenced the construction of a dam across Snake river at a point about nine miles westerly from and below the lands of the plaintiff. The work was prosecuted on said dam until its completion in March, 1905. This dam is so constructed as to impound all the water of Snake river flowing at said point, and to raise the water about 40 feet in height. It is alleged that when defendant's dam was filled with water, the water was turned into a canal known as the 'Twin Falls canal,' owned by the defendant and located on the north side of the river; that this canal was constructed at a cost, as plaintiff is informed and believes, of $1,500,000, for the purpose of supplying water for irrigation and domestic purposes to the settlers on about 300,000 acres of arable and arid lands situated below the dam; that for said lands and for a great number of people, being, as plaintiff is informed and believes, five thousand in number, there is no other supply available for irrigation, stock, domestic, or manufacturing purposes, except the water from said canal. It is alleged that by reason of this dam the waters of Snake river have been backed up from said dam and to and beyond plaintiff's premises, and have destroyed the current in the river by means of which plaintiff's water wheels were driven and made to revolve and raise the water to the elevation required for distribution over plaintiff's lands. It is alleged that it is now impossible for plaintiff to so arrange or change his said dams or water wheels or flumes, or to build or construct other dams or water wheels or flumes that will raise any water whatever from said stream that can be used upon the plaintiff's lands, and by reason thereof plaintiff has not been able to irrigate said lands or any part thereof, or to raise profitable crops thereon, or to use the same as pasture lands, and will not in the future be able to irrigate said lands or to raise profitable crops or any crops thereon as long as defendant's dam is maintained; that there is no other supply of water available for use upon said lands except the waters of Snake river; that by reason of the backing up of said water and stopping the plaintiff from using said water wheels to raise the waters of Snake river to and upon said lands, and cutting off the water supply from plaintiff's lands, he has been damaged in the aggregate sum of $56,650.

'In the first count of the complaint a separate and distinct cause of action is alleged in an averment that about 12 acres of plaintiff's land has been covered by the waters of Snake river, backed up by defendant's dam, but the land is not described or its boundaries given, or any particulars stated, so that the land can be identified or ascertained. To this cause of action defendant interposed a special demurrer on the ground of uncer- tainty and the improper joinder of two separate causes of action. This special demurrer appears to be admitted.

'The defendant also interposed a general demurrer on the ground that the facts stated in the complaint do not constitute a cause of action against the defendant as to either or any of said counts. The demurrer was sustained by the circuit court, and the plaintiff has brought the cause to this court upon a writ of error.' [——L.R.A.(N.S.) ——, 88 C. C. A. 207, 161 Fed. 43.]

The trial court recognized fully the right of the plaintiff to the volume of water actually appropriated for a beneficial purpose. It nevertheless dismissed the complaint on the ground that there was no right under the Constitution and laws of the state of Idaho to appropriate the current of the river so as to render it impossible for others to apply the otherwise unappropriated waters of the river to beneficial uses. The court did not find it necessary to deny that power might be one of the beneficial purposes for which appropriations of water might be made, but in substance held that to uphold as an appropriation the use of the current of the river to the extent required to work the defendant's wheels would amount to saying that a limited taking of water from the river by appropriation for a limited beneficial use justified the appropriation of all the water in the river as incident to the limited benefit resulting from the use of the water actually appropriated. The court said:

'It is conceded and is beyond question, that the statute law as well as judicial authority directly protects plaintiff in all the water he has actually appropriated, diverted, and used; but there is no statute, nor, so far as known, any judicial rulings, protecting him in the establishment and in the use of his water wheels, as he claims to, and must, use them for the diversion of water to his land.'

Again:

'As by art. 15, § 3, Constitution of Idaho, all unappropriated waters are subject to appropriation, it fol- lows that all water that plaintiff has legally appropriated belongs to him, but all other is subject to appropriation. It is unquestioned that what he has actually diverted and used upon his land, he has appropriated; but can it be said that all the water he uses or needs to operate his wheels is an appropriation? As before suggested, there is neither statutory nor judicial authority that such a use is an appropriation. Such use also lacks one of the essential attributes of an appropriation,—it is not reasonable.'

After pointing out the limited right of appropriation for beneficial use which had been exercised, considering the quantity of water actually appropriated and the use to which that water was put, the court came to state the vast extent of the incidental appropriation, having no proper relation to beneficial use, which would result from admitting the theory that the plaintiff, because of his limited appropriation for a named beneficial use, had the power to appropriate the entire current of the river for the purpose of making his actual and limited appropriation and meager beneficial enjoyment fruitful. The court said:

'The only way in which his wheels can be used for the purpose he intended them is to preserve the river in the condition it was when he erected them. And with what result? it may be asked. It may be stated as a fact that the banks of the river and the adjacent country sustain such relations to each other that the latter cannot be irrigated by ditches cut from the river in its natural state, and the erection of dams becomes a...