Niday v. Barker

• Decision Date: 02 March 1909
• Citation: 101 P. 254,16 Idaho 73
• Parties: J. L. NIDAY, Respondent, v. DANIEL BARKER et al., as Directors of the NAMPA & MERIDIAN IRR. DISTRICT, Appellants
• Court: Idaho Supreme Court

101 P. 254

16 Idaho 73

J. L. NIDAY, Respondent, v. DANIEL BARKER et al., as Directors of the NAMPA & MERIDIAN IRR. DISTRICT, Appellants

Supreme Court of Idaho

March 2, 1909

IRRIGATION AND WATER RIGHTS-DEDICATION OF WATER BY USE-POINT OF DELIVERY-REPAIR OF DITCHES, CANALS AND LATERALS.

1. Where water has been delivered to lands under a rental and distribution, and has been used and applied by the land owner under such rental for the purposes of raising crops, the right to such use becomes a dedication within the meaning of sec. 4 of art. 15 of the constitution, and the user and consumer is entitled to the continued use thereafter on payment of the rental rates established in conformity with law.

2. A dedication within the purview of the constitution is commensurate only with the character and kind of waters dedicated and the use and regularity of the use to which they were applied. If the waters received and used and applied by a subsequent settler and claimant are a part of the waters included within the appropriation of prior claimants, and are merely waters they are not, for the time, using or claiming then the dedication and right to the subsequent use thereof only goes to such waters, and merely constitutes a claim for the use of such waters as are not needed or applied by prior consumers at any given time during any subsequent season.

3. The fact that a canal company has furnished and delivered water to a consumer for the purpose of raising crops so as to amount to a dedication of the use within contemplation of the provisions of sec. 4, art. 15 of the constitution, raises the prima facie pre- sumption that the company so furnishing and delivering water had that quantity of water over and above the amount required and previously appropriated and dedicated to other users and consumers from the same canal.

4. It is the duty of a canal company to turn the water for the consumer out of its main canal or lateral at such place as will be most convenient for the consumer, and will cause least waste by seepage and evaporation.

5. Where the right to the use of waters from a canal has attached within the purview of the provisions of sec. 4, art 15 of the constitution, and the water user pays or tenders the established water rental therefor, the question of the expense of delivery or the amount of waste by seepage percolation and evaporation cannot be charged to the water user and consumer, but the burden and responsibility thereof rests upon the canal company.

6. It is the duty of canal and water companies to keep their ditches and canals in repair, so as to carry the water to the several consumers along the lines thereof.

(Syllabus by the court.)

APPEAL from the District Court of the Seventh Judicial District, for the County of Canyon. Hon. Ed. L. Bryan, Judge.

Action by plaintiff for a writ of mandate. Judgment for plaintiff and defendants appealed. Affirmed.

Judgment affirmed, with costs in favor of respondent.

Hugh E. McElroy, for Appellants.

"Contracts whereby the irrigation company agrees to furnish more water than it has ability to furnish are illegal; and the company will be enjoined, at the instance of those holding prior rights, from selling water in excess of the capacity of its ditch and from compelling them to pro-rate with the purchasers of such excess rights." (Mills on Irrigation, 195, notes 61, 62.)

"Where applications to a water company for water for irrigation exceed the capacity of the company's canal to furnish it, it is the duty of the company to limit the contracts to its capacity and to those appropriators possessing the older rights of appropriation." (Gould v. Maricopa Canal Co., 8 Ariz. 429, 76 P. 598.)

Rice & Thompson, J. L. Niday, and A. A. Fraser, for Respondent.

Under the statutes of this state the respondent Niday is entitled to have the water for the irrigation of his tract of land diverted from the canal of the appellant company at the point decreed by the trial judge. (Pocatello Water Co. v. Standley, 7 Idaho 155, 61 P. 518; Candelaria v. Vallejos, 13 N.M. 146, 81 P. 589.)

"A contract is not invalid nor is the promisor discharged merely because it turns out to be difficult, unreasonable, dangerous or burdensome." (10 Cyc. 625; Wilmington Trans. Co. v. O'Neil, 98 Cal. 1, 32 P. 705; Williams v. Miller (Cal.), 6 P. 14.)

AILSHIE, J. Stewart, J., concurs. SULLIVAN, C. J., Dissenting.

OPINION

AILSHIE, J.

The respondent commenced his action in the district court of Canyon county praying for a writ of mandate against the officers and directors of the Nampa and Meridian Irrigation District, requiring and compelling them to deliver eighty inches of water from the canal belonging to the district for the irrigation of his lands. The case was tried and the court made findings of fact and conclusions of law and entered judgment in favor of the plaintiff, and the defendants appealed. It appears that the plaintiff, who is respondent in this court, is the owner of a tract of land in Canyon county, and that for the irrigation of this land he claims water and a water right from the defendants through what is known as the Mason creek high line lateral. He alleges that he received water to the extent of eighty inches from this canal for use on his land during the years 1904 and 1905, and that the water was measured at the flume across Lake Paradox gulch, which delivered the water at the terminal of the defendant company's lateral and near plaintiff's land. He also alleges that the company began delivering this water for the year 1906, and continued to do so until the 15th of July, when it refused to make further delivery. He alleges that he had from year to year paid the annual rental charge for the delivery of water from this canal. The principal allegations of the complaint were denied by the defendants. There is considerable conflict of evidence on most of the issues involved in this case. The trial court has made his findings of fact and thereby disposed of this conflict by finding in favor of the respondent and against the appellants. The 3d, 4th, 9th and 10th findings are as follows:

"3d. That in the spring of the year 1904 plaintiff placed a portion of said land in cultivation, and during said year planted a crop thereon, and made application to the Boise City Irrigation and Land Company for eighty (80) miner's inches of water, the equivalent of 1.6 cubic feet per second of time, that said company delivered said water under said application for the irrigation of said lands, and that said water was so applied.

"4th. That during the year 1905, plaintiff had a large amount of said lands in cultivation to grass and grain, to wit, about 100 acres, and regularly made his said application to said Boise City Irrigation and Land Company for eighty (80) miner's inches of water, the equivalent of 1.6 cubic feet per second of water, for the irrigation of said lands, that said water was delivered to the defendant at the terminus of what is known as the Mason creek high line lateral of the Ridenbaugh Canal belonging to said company, said terminus being in section eighteen (18), township two (2) north of range one (1) west of Boise Base and Meridian, Canyon county, Idaho, and that said water was applied to the irrigation of said lands and for domestic use, and that plaintiff paid the established rate therefor."

"9th. That said Nampa-Meridian Irrigation District has a sufficient supply of water in its canal for the delivery of water to this plaintiff for said lands.

"10th. That about the 21st day of July, 1906, the said plaintiff made formal demand on the said defendant, Daniel Barker, as managing director of said district for the deliver of said water, and that he absolutely refused to deliver said water at said Mason creek high line lateral terminus, and still refuses so to do."

There is substantial evidence in the record to support each of these findings.

It should first be observed that the Nampa and Meridian Irrigation District is the successor in interest of the Boise City Irrigation and Land Company, to which latter company the respondent originally made application and from which company he received water for his lands.

From the foregoing findings the following facts are established That the respondent had been receiving water from the appellant's canal during the years 1904 and 1905, and that he had paid the established rate therefor; that the appellant had a sufficient supply of water in its canal for delivery of water to the respondent, and finally, after making formal demand, the company refused and declined to...