Moe v. Harger

• Decision Date: 05 July 1904
• Citation: 77 P. 645,10 Idaho 302
• Court: Idaho Supreme Court
• Parties: MOE v. HARGER (BRADSHAW'S APPEAL)

77 P. 645

10 Idaho 302

MOE v. HARGER (BRADSHAW'S APPEAL)

Supreme Court of Idaho

July 5, 1904

WATER RIGHTS-NATURAL RESERVOIRS-DIVERSION OF WATERS-INJUNCTIVE RELIEF.

1. Evidence of expert and nonexpert witnesses with reference to the theory of the formation of a natural reservoir along the course of a stream examined, and held insufficient to justify a court in departing from the uniform and well-established doctrine, that the first appropriator has the first right and in this case the position of appellants that their diversion and use of the water is not injurious or prejudicial to the rights of a prior appropriator lower down the stream is held untenable.

2. So soon as the prior appropriation and right of use is established, it is clear, as a proposition of law, that such appropriator is entitled to have sufficient of the unappropriated waters flow down to his point of diversion to supply his right, and an injunction against interference therewith is proper protective relief to be granted.

(Syllabus by the court.)

APPEAL from District Court in and for Custer County. Trial had before Honorable K. I. Perky, Judge. New trial denied by Honorable J. M. Stevens, Judge.

S. T Moe commenced an action against a large number of appropriators and users of the waters of Big Lost river, in Blaine and Custer counties. A judgment and decree was made and entered determining the respective rights and priorities of all the parties to the action, and an injunctive order was incorporated in the decree running against all the parties to the action restraining and enjoining each from in any way interfering with or diverting or using any of the waters of Big Lost river except in accordance with the terms of the decree. From an order denying a motion for a new trial Thomas Bradshaw and other defendants appealed. Affirmed.

Judgment affirmed. Costs awarded to respondents.

N. M. Ruick, for Appellants, cites no authorities.

Sullivan & Sullivan and G. F. Hansbrough, for Respondents, cite no authorities on the point decided by the court.

AILSHIE, J. Stockslager, J., concurs. Sullivan, C. J., did not sit at the hearing and took no part in the decision.

OPINION

The facts are stated in the opinion.

AILSHIE J.--

This action was commenced in the district court against numerous appropriators and users of the waters from Big Lost river in Blaine and Custer counties. The controversy on this appeal arises over the peculiar situation and condition of the waters of that stream. The river rises far up in the mountains and during the high or flood waters in April, May and June each year flows in a continuous surface stream from its source to a few miles below Arco in Blaine county, a distance of upward of seventy-five miles. It is shown that about twenty-five or thirty miles below Arco is a place called the "Narrows," where the valley through which the stream flows is only about one-fourth of a mile wide, the bedrock coming to the surface there and the mountains closing in, and above which point the valley widens out into a basin some eight miles wide. This valley or basin is covered with a thin soil, and contains an unascertained depth of gravel deposit and extends for a number of miles up the stream from the Narrows. It appears that after the close of the flood season or high-water period the stream flowing through this valley above the Narrows gradually lessens until it finally disappears for a distance ranging from eight to fourteen miles above the Narrows. During the entire season however, the water rises at the Narrows and flows out through that point in a perpetual stream of about the same volume, flowing in the channel above the point where it sinks. It is shown by the evidence that in the springtime it takes from twenty to thirty days of high water or flood season to raise the stream and flood the valley above the Narrows sufficiently to cause the water to flow over the surface through the entire length of the valley. It is in this valley that the appellants in this case reside and have water rights subsequent, in point of time of appropriation and use, to the rights and claims of the respondents. At the trial appellants sought by the introduction of expert evidence and the testimony of witnesses who had lived in the community since 1872 to establish the fact that the taking of water from the stream above the point where it sinks and irrigating the lands within the valley above the Narrows does not in any manner lessen the flow of the water at the point where they rise and flow out through the Narrows at the lower end of the basin. In attempting to establish this proposition it was shown by at least one witness who has been familiar with the stream and country through which it flows since 1872, that there has been some irrigating going on in that basin for about twenty years, and that the water level in wells and other excavations made in the basin above the Narrows has been gradually rising from time to time until at the present time it is considerably higher than when he first made observations there. It is also shown that when he first knew the stream it went dry for...