Nielson v. Parker

• Decision Date: 20 April 1911
• Parties: JAMES R. NIELSON, Respondent, v. RALPH PARKER and FRANK PARKER, Appellants
• Court: Idaho Supreme Court

115 P. 488

19 Idaho 727

JAMES R. NIELSON, Respondent, v. RALPH PARKER and FRANK PARKER, Appellants

Supreme Court of Idaho

April 20, 1911

WATER AND WATER RIGHTS-APPROPRIATION-DIVERSION AND USE-PERMIT FROM STATE ENGINEER.

(Syllabus by the court.)

1. Both the constitution and statutes of this state recognize the right of a prior appropriator in and to the public waters of this state, and the statute, sec. 3245, declares that the "first in time is the first in right."

2. Where one actually diverts the water of a stream and applies the same to a beneficial use in the irrigation of his growing crops, although he has never applied to the state engineer for a permit to do so, and has never procured either a permit or a license from the state engineer, still his right is superior and paramount to any right that a subsequent appropriator can procure, even though the latter secures a permit from the state engineer to appropriate and divert the water of the stream.

3. The state engineer has no right, power, or authority to interfere with vested rights or to grant a permit for the appropriation and diversion of the water of a stream where the same has already been diverted and applied to a beneficial use.

4. Under the laws of this state a water right is real property and one who has actually diverted the water of a stream and applied the same to a beneficial use is in the actual possession of such real property, and this possession constitutes actual notice to any subsequent appropriator of the water of the same stream, or to any person who subsequently applies to the state engineer for a permit to appropriate and divert the water of the same stream.

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

Action to establish the respective rights and priorities of claimants to the use of the waters of Wood Canyon in Oneida county. Judgment for the plaintiff and defendants appealed. Affirmed.

Judgment affirmed. Costs awarded in favor of respondent.

D. C McDougall and T. D. Jones, for Appellants.

It was undoubtedly the intention of the legislature that the method prescribed by the 1903 law was the exclusive method thereafter to be followed in the appropriation of the public waters of this state. (Idaho Power etc. Co. v Stephenson, 16 Idaho 418, 101 P. 821; Speer v. Stephenson, 16 Idaho 707, 102 P. 365.)

E. G. Davis and S.D. Davis, for Respondent.

Under our law as it exists to-day we have two separate and distinct methods of acquiring a right to the unappropriated waters of the state; the first by actual diversion and use, and the second by obtaining a permit from the state engineer and complying with the conditions of the law as to the completion of the work necessary to divert the water upon the land and the application of the waters to a beneficial use. In the first case the right to the use of the water dates from its actual application to a beneficial use, and, in the second, the necessary work being completed, the right would relate back to the date of the permit. (Lockwood v. Freeman, 15 Idaho 398, 98 P. 295; Sand Point Water & Light Co. v. Panhandle Development Co., 11 Idaho 405, 83 P. 347; Pyke v. Burnside, 8 Idaho 490, 69 P. 477; Hard v. Boise City Inv. & Land Co., 9 Idaho 589, 76 P. 331, 65 L. R. A. 407; Wiel's Water Rights in the Western States, secs. 140-142; Morris v. Bean, 146 F. 426.)

AILSHIE, Presiding J. Sullivan, J., concurs.

OPINION

AILSHIE, Presiding J.

In 1901 the respondent herein filed a notice of appropriation of the waters of Wood Canyon in Oneida county. Commencing with the year 1901 and during subsequent years up to and including 1907 it appears that the respondent did certain work in cleaning out the natural channel of the stream for the purpose of carrying water down the stream to his land. This stream was fed by springs several miles up the canyon above his lands, and it appears that quite early in the irrigation season the water became so low that it did not flow as far down the canyon as to the lands of respondent. In 1907 respondent made a desert entry on lands some four miles up the canyon above his homestead, and thus much nearer the source of supply of this stream. In both 1908 and 1909 he cultivated a small tract on his desert entry and irrigated the same by water taken from Wood Canyon.

In August, 1908, appellants made application to the state engineer for a permit to appropriate the waters of Wood Canyon for the purpose of irrigating certain lands owned by appellants and lying along this stream. A second application was made in December of the same year, and a third application in June, 1909. Appellants, however, did not use the waters from this stream until June, 1909. This action was instituted to determine the respective rights of the parties and their priorities to the waters of this stream.

The trial court found, first, that respondent's appropriation was entitled to date from 1901, and that he had since that time applied the water to the irrigation of his homestead. In the second place, the court found, as a conclusion of law, that the respondent, having actually diverted and applied the waters of the stream to the irrigation of his lands--and particularly his desert entry--prior to the time that appellants applied to the state engineer for their permit to appropriate the waters of the stream, the respondent consequently acquired a prior and superior right to appellants' and was entitled to the waters of the stream, even though he had never applied any of the waters of the stream to his homestead. It is contended by appellants that the evidence is not sufficient to support the court's finding on the first proposition, namely, that the respondent had applied the water to a beneficial use, in that he had used it in irrigating his homestead since 1901. On this question there is a conflict in the evidence. While there is apparently some evidence to support the respondent's contention, there is much evidence against him. As we view the case, our conclusion on the second question will finally dispose of the case, and will render it unnecessary for us to consider the evidence on the first question presented.

It is contended by appellants that under the act of 1903 requiring application to be made to the state engineer for permits and prescribing that "all rights to divert and use the waters of this state for beneficial purposes shall hereafter be acquired and confirmed under the provisions of this chapter. And after the passage of this title all the waters of this state shall be controlled and administered in the manner herein provided" (sec. 3252), all water rights must be acquired under the provisions of the statute, and that there is no longer any such thing as acquiring a water right by diversion and an application to a beneficial use without first complying with the statute and securing a permit. On the other hand, respondent contends that the right to the use of the public waters of this state may be acquired in two ways: First, by actual diversion and application to a beneficial use, and second, by pursuing the successive steps prescribed by the statute. (Act 1903, sec. 3245, Rev. Codes, et seq.)

In the outset we should not lose sight of the provisions of sec. 3, art. 15 of the constitution, which prescribes that "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 the water. . . ." Sec. 3245 of Rev. Codes provides that "as between appropriators the first in time is the first in right."

Sec 3242 provides: ...