Nettleton v. Higginson

• Decision Date: 12 January 1977
• Docket Number: No. 11935,11935
• Citation: 98 Idaho 87,558 P.2d 1048
• Parties: J. H. NETTLETON, Plaintiff-Appellant, v. R. Keith HIGGINSON, as Director of the Dept. of Water Administration of the State of Idaho, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 1048

558 P.2d 1048

98 Idaho 87

J. H. NETTLETON, Plaintiff-Appellant, v. R. Keith HIGGINSON, as Director of the Dept. of Water Administration of the State of Idaho, Defendant-Respondent.

No. 11935.

Supreme Court of Idaho.

Jan. 12, 1977.

Herbert W. Rettig, of Dunlap, Rettig & Rosenberry, Caldwell, William F. Schroeder, of Schroeder, Denning & Hutchens, Vale, Ore., for plaintiff-appellant.

Nathan W. Higer, Legal Counsel, Boise, for defendant-respondent.

DONALDSON, Justice.

This controversy involves a dispute between plaintiff-appellant J. H. Nettleton, a water user located in the Upper Reynolds Creek Water District, and defendant-respondent Department of Water Resources, which assumes distribution of waters of Reynolds Creek. Reynolds Creek is a natural stream located in Owyhee County, Idaho, and the Department of Water Resources, formerly the Department of Water Administration, divided the stream into two water districts. District 57-A which is known as Upper Reynolds Creek District wherein the appellant owns property, and District 57-J which comprises Lower Reynolds Creek. The appellant's lands are located in Upper Reynolds Creek, and it is stipulated he has three types of water rights, adjudicated rights, licensed rights, and unadjudicated 'constitutional' rights.

The respondent claims direction and control of the distribution of all of the waters of Reynolds Creek within the boundaries of Upper Reynolds and Lower Reynolds, and has ordered the watermaster for Upper Reynolds to distribute the waters in Upper Reynolds as if both Upper and Lower Reynolds were one water district. Consistent with that policy, respondent's position is that the decree of September 14, 1973, which adjudicated the rights of ten water users in Lower Reynolds, requires that the watermaster of Upper Reynolds recognize the priorities of those in Lower Reynolds in allocating the waters in his district.

The matter was submitted to the trial court upon stipulation of facts with the appellant seeking to enjoin the respondent from administering the distribution of waters from Reynolds Creek. The trial court granted respondent's motion for summary judgment, from which appellant now appeals.

Appellant assigns error to the lower court's failure to find the provisions of I.C. § 42-607 in violation of his constitutional rights. ¹ His challenge is threefold: first, that the statutory preference for 'adjudicated, decreed, permit, or licensed right(s)' over the so-called unadjudicated 'constitutional use' water rights in times of water scarcity is a deprivation of property without due process (Idaho Const. Art. I, § 13; U.S. Const. Amend. XIV, § 1); second, that said statute is a denial of equal protection under the laws (U.S.Const. Amend. XIV, § 1; and finally, I.C. § 42-607 authorizes a taking of property for a public use without payment of just compensation (Idaho Const. Art. 1, § 14).

We first consider appellant's contention that the statute amounts to a deprivation of property without due process of law. We agree that individual water rights are real property rights which must be afforded the protection of due process of law before they may be taken by the state. Idaho Const. Art 15, § 4; Anderson v. Cummings, 81 Idaho 327, 340 P.2d 1111 (1959); Follett v. Taylor Brothers, 77 Idaho 416, 294 P.2d 1088 (1956).

The constitutional guarantee of procedural due process applies to governmental taking of legitimate property interests within the meaning of the Fifth or Fourteenth Amendments. It demands that if such a deprivation takes place, it must be accompanied by some type of notice and hearing. The United States Supreme Court, in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), held that except in 'extraordinary circumstances' where some valid governmental interest justifies the postponement of notice and hearing, due process requires an adversary proceeding before a person can be deprived of his property interest.

The appellant, however, in order to invoke the proptection of the Due Process Clause, must have a 'significant property interest' which is being deprived by the state's actions pursuant to I.C. § 42-607. Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). The difficulty appellant has in this case is apparent. His claimed property interest is that of a 'constitutional use' water right, such right being created simply by diverting unappropriated waters and putting those waters to beneficial use. I.C. § 42-103 et seq. Such a right, unless adjudicated, is an unproven right, i. e. no formal proceeding, neither judicial nor administrative, has established said right. Until such a water right is adjudicated, the only evidence that the right exists are the declarations of the claimant himself. Even if upon investigation by the Water Resources Board or some interested person a means of diversion, as claimed by appellant, is discovered, there still remains the unanswered questions concerning the date such diversion of water was put into operation; the amount of water being diverted; the use for which the water is being diverted; and the continuity in time of appellant's diversion of water. Thus, this Court, in considering appellant's due process argument, faces the same problem ² that the watermaster faces when attempting to distribute the waters in times of scarcity-i. e. determinig which claimed 'constitutional use' rights are valid and which are unwarranted and unjustified claims for water under the guise of a 'constitutional use right.'

But even if the appellant has sufficiently substantiated the existence of this claimed property interest so as to invoke the protections of the Due Process Clause, there are other reasons for rejection of this constitutional challenge.

Justice Powell, in a concurring opinion in Mitchell v. W. T. Grant Company, 416 U.S. 600, 91 S.Ct. 1895, 40 L.Ed.2d 406 (1974), notes that the determination of what due process is required in a given context requires a balancing of both the nature of the governmental function involved and the private interests affected. 416 U.S. at 624-25, 94 S.Ct. 1895. It is well-settled that the water itself is the property of the state, which has the duty to supervise the allotment of those waters with minimal waste to the private appropriators. I.C. § 42-101; Poole v. Olaveson, 82 Idaho 496, 356 P.2d 61 (1960); Walbridge v. Robinson, 22 Idaho 236, 125 P. 812 (1912). In addition, the state's authority to regulate the distribution of the water is constitutionally based 'The use of all waters now appropriated, or that may hereafter be appropriated for sale, rental or distribution; also of all water originally appropriated for private use, but which after such appropriation has heretofore been, or may hereafter be sold, rented, or distributed, is hereby declared to be a public use, and subject to the regulation and control of the state in the manner prescribed by law.' Idaho Const. Art. 15, § 1.

The governmental function in enacting not only I.C. § 43-607, but the entire water distribution system under Title 42 of the Idaho Code is to further the state policy of securing the maximum use and benefit of its water resources. As to the private interests affected, it is obvious that in times of water shortage someone is not going to receive water. Under the appropriation system the right of priority is based on the date of one's appropriation, i. e. first in time is first in right. However, as stated earlier, it is the state's duty to supervise the distribution of the waters through the Water Resource Board and its watermasters. In DeRousse v. Higginson, 95 Idaho 173, 505 P.2d 321 (1973), the dissent aptly considered the practical difficulties facing the watermaster:

'It is to be kept in mind that the authority of the watermaster in his district is to control the delivery to the water from the source of supply * * * into the respective ditches or canals leading from the main stream. The watermaster is confronted by two significant problems when delivering water within his water district: first, he must maintain the constitutional requirement of priority of water rights among the various users; second, he is confronted with the practical problem of delivering water to the correct point of diversion. When one considers the magnitude of the watermaster's problem of water delivery in his water district, it is evident that a proper delivery can only be effected when the watermaster is guided by some specific schedule or list of water users and their priorities, amounts, and points of diversion. * * *

'Only by having a specific list reciting the names of the water users, with their dates of priority, amounts, and points of diversion can such a system be administered. Since the so-called 'constitutional use right' is unrecorded in respect to priority, amount and point of diversion, the whole system of deliverty in a water district would be endangered if such a right were recognized. * * *

'* * * All those individuals that enjoy the use of water by reason of having their rights adjudicated, or that have the use of water by reason of permits or licenses issued from the department of (water resources), are entitled to expect the state, which has granted them the right to the use of water, to protect them in their established rights.

'If (appellant's) interpretation (of the constitutionality) of I.C. § 42-607 is (followed), the validity of any decreed right or water permit or license would be placed in jeopardy. If anyone claimed a constitutional 'use right,' and took the water from the stream, the watermaster charged with the responsibility of administering the stream would be powerless to act. Consequently, a person enjoying a prior right established by a decree, permit or license, would be subject to...