Nampa & Meridian Irrigation District v. Welsh

• Decision Date: 03 September 1932
• Docket Number: 5872,5824
• Citation: 52 Idaho 279,15 P.2d 617
• Parties: NAMPA & MERIDIAN IRRIGATION DISTRICT, Respondent, v. WILLIAM E. WELSH, Watermaster of Water District 12-A of the State of Idaho; DRAINAGE DISTRICT NO. 2 OF ADA COUNTY, IDAHO; DRAINAGE DISTRICT NO. 3 OF ADA COUNTY, IDAHO; and DRAINAGE DISTRICT NO. 4 OF ADA COUNTY, IDAHO, Appellants
• Court: Idaho Supreme Court

15 P.2d 617

52 Idaho 279

NAMPA & MERIDIAN IRRIGATION DISTRICT, Respondent, v. WILLIAM E. WELSH, Watermaster of Water District 12-A of the State of Idaho; DRAINAGE DISTRICT NO. 2 OF ADA COUNTY, IDAHO; DRAINAGE DISTRICT NO. 3 OF ADA COUNTY, IDAHO; and DRAINAGE DISTRICT NO. 4 OF ADA COUNTY, IDAHO, Appellants

Nos. 5824, 5872

Supreme Court of Idaho

September 3, 1932

WATER AND WATERCOURSES - DRAINAGE DISTRICT WATERS - WATER RIGHTS-OWNERSHIP-MANDAMUS.

1. That watermaster had no right to use of particular water could not divest him of duty of delivering it to parties entitled to it.

2. Ownership of water rights could not be litigated in mandamus proceeding.

3. Mandate is not proper to try title to perpetual right.

4. If waters in drainage ditches were actually developed waters satisfying test that they augmented natural flow of river then to extent of that augmentation land owners within districts were as much entitled to use thereof as though their rights had been adjudicated.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Wm. A. Babcock, Trial Judge.

Petition for writ of mandate. Judgment for plaintiff. Reversed.

Appeals dismissed, parties paid their own costs. Petition for rehearing denied.

Frank T. Wyman and T. L. Martin, for Appellant Welsh; Charles F Reddoch and Martin & Martin, for Appellant Drainage District No. 2; Laurel E. Elam, for Appellant Drainage District No. 3; Wm. M. Morgan and E. B. Smith, for Appellant Drainage District No. 4.

The character of, or title to, the water in the drain ditches of Drainage Districts Nos. 2, 3 and 4 could not be determined or adjudicated on an application for writ of mandate. (Stoner v. Carter, 48 Idaho 745, 285 P. 470; Sanderson v. Salmon River C. Co., 34 Idaho 145, 199 P. 999; Lewis v. Mountain Home Co-op. Irr. Co., 28 Idaho 682, 156 P. 419; 38 C. J., sec. 63, p. 589.)

McElroy & Chalfant and G. W. Grebe, for Respondent.

Water which naturally flows or seeps into a public stream is feeder water of such stream and claims to such feeder water are subject to appropriations from the stream. Claims to such water as developed water are inchoate until adjudicated. (Josslyn v. Daly, 15 Idaho 137, 96 P. 568; Union Cent. Life Ins. Co. v. Albrethsen, 50 Idaho 196, 294 P 842; Trowell Land & Irr. Co. v. Bijou Irr. Dist., 65 Colo. 202, 176 P. 292; Mountain Lake Min. Co. v. Midway Irr. Co., 47 Utah 346, 149 P. 929; Hill v. Green, 47 Idaho 157, 274 P. 110.)

LEE, C. J. Budge, Varian and Leeper, JJ., and Barclay, District Judge, concur. Givens, J., took no part.

OPINION

LEE, C. J.

On January 18, 1906, the waters of Boise River were adjudicated in the district court of Canyon county by what is commonly known as the Stewart decree awarding to plaintiff and respondent, Nampa & Meridian Irrigation District, allotment No. 67 of 8,500 inches with priority of May 1, 1878, and allotment No. 106 of 18,542 inches with priority of August 20, 1888. The decree was subsequently reversed by this court and sent back for the determination of the duty of water. May 31, 1919, the district court entered a temporary order for the distribution of said waters, pending final determination of the original action.

Plaintiff sued out an alternative writ of mandate to compel the watermaster of District 12-A, comprising the waters of Boise River, to distribute its allotments as directed by said Stewart decree, joining as defendants the present appellants, William E. Welsh, watermaster aforesaid, and Drainage Districts Nos. 2, 3 and 4 of Ada County. After qualifying itself as plaintiff, pleading the aforesaid adjudication and alleging that the same did not allot or decree to said drainage districts any of the waters of Boise River, it charged that defendant watermaster during a season of drought, although having cut plaintiff's allotments below 60 per cent, was delivering to said defendant districts 1,954 inches of water from the river for the use of the district land owners, "giving to said water an absolute priority as developed water over all the rights so as aforesaid adjudicated by the Stewart decree," and that he would continue so to do unless restrained and prohibited by the court. It further declared that said 1,954 inches was at the time "taken directly from the water of plaintiff's allotment No. 106," and was the property of plaintiff; that plaintiff was entitled to its delivery and that neither of said districts had any right nor title thereto; that said water was being delivered them for the use of land owners therein, all of whom were receiving in addition thereto full decreed rights under the Stewart decree and were using the 1,954 inches as supplemental to such rights, the which use was excessive and in violation of both said decree and the law.

Numerous objections, motions and demurrers having been denied and overruled, defendants answered, appellant watermaster admitting that said 1,954 inches was being delivered defendant districts as developed water but specifically alleging that the defendants Drainage District No. 2 Drainage District No. 3 and Drainage District No. 4 are respectively drainage districts duly organized and existing under and by virtue of the laws of the state of Idaho; that subsequent to their organization the said drainage districts, and each of them, pursuant to authority duly given by law, constructed extensive drainage systems covering lands within their respective districts; that such drains lowered the then existing water-table, thereby requiring more water in the irrigation of the said lands so drained than previous to the construction of said drainage canals; that ever since the construction of said canals large amounts of water have been gathered in said canals and the commissioners of said drainage districts heretofore made and caused to be made applications under the laws of this state for the appropriation of the waters of said drainage canals for the use and benefit of the owners of and to be used upon lands within the boundaries of said districts respectively, and such applications were approved by the commissioner of reclamation of the state of Idaho and permits issued for large amounts of said waters as having been developed and created by said drainage canals; that such permits are now in effect and good standing; and thereafter the commissioners of said drainage districts respectively apportioned the said water in their respective drainage canals to the owners of lands within the said districts in the proportion that the assessment for drainage of each tract of said lands bore to the whole assessment within such drainage district. That thereupon the owners of said lands in said drainage districts diverted, used and applied all of said waters so apportioned and decreed to them respectively to use upon their said lands and there used the same in the beneficial and necessary irrigation of the same; that the said lands are arid in character but were and are highly valuable for agricultural purposes when irrigated, and that the said separate tracts of land within said drainage districts required and still require the use of the water so apportioned and distributed to them respectively for the use in irrigation thereof. He further alleged that between resp...