Montpelier Milling Co. v. City of Montpelier

• Citation: 19 Idaho 212,113 P. 741
• Parties: MONTPELIER MILLING COMPANY, a Corporation, Respondent, v. CITY OF MONTPELIER, a Municipal Corporation, Appellant
• Decision Date: 23 January 1911
• Court: Idaho Supreme Court

113 P. 741

19 Idaho 212

MONTPELIER MILLING COMPANY, a Corporation, Respondent, v. CITY OF MONTPELIER, a Municipal Corporation, Appellant

Supreme Court of Idaho

January 23, 1911

COMPLAINT-SUFFICIENT ALLEGATIONS-WATER-APPROPRIATIONS-PRIORITY-FINDINGS.

(Syllabus by the court.)

1. An action to obtain an injunction to restrain the diversion and use of water which shows upon its face that the plaintiff appropriated such water, and has continuously used the same up to the time it is alleged the defendant diverted and appropriated such water, states a cause of action.

2. An action to determine the right to waters flowing in a public stream in this state wherein the facts alleged show that the plaintiff appropriated such water and applied the same to a beneficial use prior in time to the alleged diversion and appropriation of the defendant, states a cause of action, and entitles the plaintiff to an injunction restraining further appropriation on the part of defendant.

3. Under the provisions of sec. 3, art. 15 of the constitution of this state, "the right to divert and appropriate the unappropriated waters of any natural stream to beneficial uses, shall never be denied. Priority of appropriation shall give the better right as between those using water; but when the waters of any natural stream are not sufficient for the service of all those desiring the use of the same, those using the water for domestic purposes shall (subject to such limitations as may be prescribed by law) have the preference over those claiming for any other purpose."

4. This section of the constitution declares that an appropriation of water to a beneficial use is a constitutional right, and that the first in time is the first in right, without reference to the particular use, and clearly recognizes an appropriation for domestic use as superior to appropriations for other uses, when the waters of any natural stream are not sufficient for all those desiring the same; and that the right to use water for a beneficial purpose is a property right, subject to such provisions of law regulating the taking of private property for public and private use as referred to in sec. 14, art. 1 of the constitution.

5. It was the intention of the framers of the constitution, by the provisions of this section, to provide that waters previously appropriated for manufacturing purposes may be taken and appropriated for domestic use, upon due and fair compensation therefor; but it was not the intention to provide that water appropriated for manufacturing purposes could thereafter arbitrarily and without compensation be appropriated for domestic purposes.

6. Under the provisions of the above-quoted section of the constitution a municipality cannot take water for domestic use which has been previously appropriated for other beneficial uses, without fully compensating the owner, and in this case, it clearly appearing that the respondent appropriated the water of Montpelier creek and applied the same to a beneficial use prior in time to the appropriation of appellant, the appellant has no right to interfere with such appropriation, to the injury of the respondent, without full compensation.

7. The findings in this case show that the respondent, and its predecessors in interest, made an appropriation of ten second-feet of the waters flowing in Montpelier creek, in the year 1891, and applied the same to a beneficial use, and continuously used the same until interfered with by the appellant, and that such appropriation was prior in time to any right of the appellant, and supports the judgment.

8. Where the defendant sets up affirmative matter in an answer which presents no material and substantial issue, and which in no way affects the rights of the plaintiff in the action it is unnecessary for the court to make findings thereon, and a failure to make such findings is not error.

APPEAL from the District Court of the Fifth Judicial District, in and for Bear Lake County. Hon. Alfred Budge, Judge.

An action to enjoin the diversion and appropriation of water. Judgment for plaintiff. Defendant appeals. Affirmed.

Judgment affirmed. Costs awarded to respondent.

T. L Glenn and Hawley, Puckett & Hawley, for Appellant.

The findings of fact do not cover the issues raised by the pleadings and are not responsive to the issues, and do not sustain the judgment of the court. (8 Ency. of Pl. & Pr. 943, 949; Winterburn v. Chambers, 91 Cal. 170, 27 P. 658; Kimball v. Lohmas, 31 Cal. 154; Ponting v. Isaman, 7 Idaho 581, 65 P. 434.)

Where the findings of fact are not responsive to the material issues, and are so uncertain that they would not warrant a judgment thereon, the case should be reversed. (Bowman v. Ayers, 2 Idaho 305 (282), 13 P. 346; State v. Baird, 13 Idaho 126, 89 P. 298; Olympia Mg. Co. v. Kerns, 13 Idaho 514, 91 P. 92.)

The right of the first appropriator exercised within reasonable limits is respected and enforced. We say within reasonable limits, for this right to water like the right by prior occupancy to mining ground or agricultural land is not unrestricted. It must be exercised with reference to the general condition of the country and the necessities of the people, and not so as to deprive a whole neighborhood or community of its use and vest an absolute monopoly in a single individual. (Basey v. Gallagher, 20 Wall. (U. S.) 670, 22 L.Ed. 452; Schodde v. Twin Falls etc. Co., 161 F. 43; Fitzpatrick v. Montgomery, 20 Mont. 181, 63 Am. St. 622, 50 P. 417.)

A. B. Gough and Clark & Budge, for Respondent.

An appropriator of water cannot change his point of diversion or purpose of use of said water to the injury of another appropriator. (Rev. Codes, sec. 3247; Wiel on Water Rights, 291-297; Walker v. McGinness, 8 Idaho 540; Hill v. Standard Min. Co., 12 Idaho 223, 85 P. 907.)

Appellant from judgment cannot complain that court failed to find upon some issue tendered by him, unless he brings up evidence and thereby shows that he litigated that issue in the trial and introduced evidence upon the issue which would have justified ruling in his favor. (In re Carpenter, 127 Cal. 582, 60 P. 162; De Tolna v. De Tolna, 135 Cal. 575, 67 P. 1045.)

The appellant's right is for irrigation purposes only and dates from 1864. The respondent's right is for power purposes and dates from 1891. These respective rights, for different purposes, might exist and have existed since 1891, without being in conflict. (Hutchinson v. Watson Slough Co., 16 Idaho 484, 133 Am. St. 125, 101 P. 1059; Wiel on Water Rights, pp. 102, 103, 296, 297.)

Findings of fact should be statements of ultimate facts in controversy, not of probative facts or mere conclusions of law. (Murphy v. Bennett, 68 Cal. 528, 9 P. 738; Weidenmueller v. Stearns Ranchos Co., 128 Cal. 623, 61 P. 374; Broadbent v. Brumback, 2 Idaho 366 (336), 16 P. 555.)

STEWART, C. J., SULLIVAN, J. Sullivan, J., Ailshie, J., concurring.

OPINION

STEWART, C. J.

This action is brought by the Montpelier Milling Company, a corporation, for the purpose of obtaining an injunction against the city of Montpelier, a municipal corporation, restraining the municipality from diverting the waters of Montpelier creek in Bear Lake county, Idaho. The cause was tried to the court and findings of fact made and a decree entered in favor of the plaintiff. The defendant, the city of Montpelier, appeals from the judgment.

The first question for consideration is the sufficiency of the complaint. In substance the complaint alleges: the corporate capacity of the plaintiff and defendant; that the plaintiff is engaged in the milling business, for the manufacture of flour, etc., near Montpelier, in this state; that the plaintiff, and its predecessors in interest, own, and have owned for more than eighteen years, a certain grist and flour mill situated on certain real property in the city of Montpelier; that plaintiff's predecessors in interest constructed a ditch and pipe-line during the year 1891, from Montpelier creek to plaintiff's said mill, of sufficient size and capacity to carry ten second-feet of water; and the appropriation of ten second-feet of water from said creek through said ditch and pipe-line during the year 1891, for the purpose of generating power to operate said mill, and that the same has been continuously used for such purpose by the plaintiff and its predecessors in interest, free from hindrance, ever since; that said amount of water is necessary to properly operate said mill, and that during a large portion of the milling season no more than ten secondfeet of water has flowed in said creek at plaintiff's point of diversion, and that during said time plaintiff and its predecessors in interest have used the entire flow of said stream for said purpose, and that the plaintiff is entitled to the entire flow of said stream when there is no more than ten second feet of water flowing therein at said point.

The complaint further alleges the ownership and control by the city of Montpelier of a system of waterworks since April 1 1908, from which said city is alleged to have sold and supplied a large amount of water for domestic and commercial purposes; that on or about the 1st day of April, 1908, the defendant city, in order to supply its said system of waterworks with water, unlawfully and wrongfully, and without any right whatsoever, diverted from said Montpelier creek, at a point on said creek about two miles above plaintiff's said point of diversion, a large quantity of the waters of said creek, and that defendant is now wrongfully diverting said waters into its system, whereby and by reason thereof plaintiff is wrongfully deprived of said water necessary for power purposes for its said mill, and was unable to operate said mill for five hours...