Parker v. Wallentine
| Decision Date | 30 August 1982 |
| Docket Number | No. 13482,13482 |
| Parties | Carl PARKER, Plaintiff-Respondent, v. L. Junior WALLENTINE, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Kent W. Foster and Curt R. Thomsen, Idaho Falls, for defendant-appellant.
W. F. Merrill, Pocatello, for plaintiff-respondent.
David H. Leroy, Atty. Gen., Don A. Olowinski and Phillip J. Rassier, Deputy Attys. Gen., for amicus curiae.
This is an appeal from an order of the district court that enjoined the pumping of water from an irrigation well located on property owned by L. Junior Wallentine because Wallentine's pumping interfered with a domestic well owned by Carl Parker.
In 1976, the defendant-appellant L. Junior Wallentine drilled a well on his property in Bear Lake County to a depth of 200 feet for the purpose of providing irrigation for a 64 acre field. The Wallentine well was drilled pursuant to state water right permit 11-7069 which authorized pumping at a rate of 1350 gpm and which provided that the well was subject to all existing water rights. The Wallentine irrigation well was located approximately 125 to 150 feet from a well used for domestic purposes on property owned by the plaintiff-respondent Carl Parker. The Parker well had been drilled in 1964 to a depth of 71 feet.
On March 4, 1976, a pump test was performed on Wallentine's irrigation well to determine whether there was an adequate water supply to irrigate Wallentine's field. The test began at approximately 4:10 p. m. and continued until approximately 8:30 p. m. that evening. At 4:20 p. m. on March 4 Carl Parker discovered that his domestic well had ceased to produce water. The following morning the well once again produced water, but the water was muddy and continued to be so for several days.
In May, 1977, Wallentine installed a pump in his well and planted crops in his field. In June, 1977, as Wallentine prepared to irrigate, Parker filed suit and obtained a temporary restraining order prohibiting the operation of the pump. Following a hearing on the matter, the district court granted a preliminary injunction restraining the use of the irrigation well unless Wallentine obtained from the Department of Water Resources a determination of the reasonable pumping level for the area and deepened Parker's well at Wallentine's expense.
Following the court's preliminary order the parties stipulated that a pump test be conducted by the Department of Water Resources. The test was performed on April 5-6, 1978, and a report of the results of the test was forwarded to the district court. The conclusions of the report were: 1) the Wallentine irrigation well and the Parker domestic well were completed in the same aquifer system and are hydraulically connected, and 2) in order to prevent interference with the Parker well the irrigation well would have to be limited to a pumping rate of only 72 gpm, about 5% of the rate authorized by Wallentine's water right permit.
On October 19, 1978, Wallentine filed an answer to Parker's complaint and counterclaimed for the damages allegedly sustained as a result of the preliminary injunction. Through his attorney Wallentine requested the Director of the Department of Water Resources, C. Stephen Allred, to establish a reasonable ground water pumping level for the area. Allred responded with a letter stating that "the economic pumping lift was calculated to be approximately 200 feet." He further stated that in this specific case the economic pumping lift and reasonable pumping lift "can be considered one and the same."
On August 20, 1979, the district court denied a motion by Wallentine for relief from its order granting the preliminary injunction and granted a permanent injunction against the use of the irrigation well. The court's order provided in part:
"IT IS HEREBY ORDERED that the defendant is permanently enjoined from the use of his well as an irrigation well conditioned on the fact that the defendant may subsequently attempt to determine a reasonable level of pumping and or damages for the taking of the plaintiff's water provided that the defendant can demonstrate that the use to which he desires to put the water is a greater public use than that of the plaintiff." 1
The Idaho legislature originally dealt with the subject of ground water when it enacted the Ground Water Act in 1951. See 1951 Idaho Sess.Laws ch. 200, pp. 423-29. Sections 1, 2 and 4 of the Act were subsequently codified as I.C. §§ 42-226, -227 and -229. As originally enacted, these provisions stated:
"Section 1. GROUND WATERS ARE PUBLIC WATERS.--
It is hereby declared that the traditional policy of the State of Idaho, requiring the water resources of this State to be devoted to beneficial use in reasonable amounts through appropriation, is affirmed with respect to the ground water resources of this State as said term is hereinafter defined. All ground waters in this state are declared to be the property of this state, whose duty it shall be to supervise their appropriation and allotment to those diverting the same for beneficial use. All rights to the use of ground water in this state however acquired before the effective date of this act are hereby in all respects validated and confirmed.
Section 2. DRILLING AND USE OF WELLS FOR DOMESTIC PURPOSES EXCEPTED.
The excavation and opening of wells and the withdrawal of water therefrom for domestic purposes shall not be in any way affected by this act; providing such wells and withdrawal devices are subject to inspection by the department of public health. Rights to ground water for domestic purposes may be acquired by withdrawal and use.
................................................................................
* * *
Section 4. METHODS OF APPROPRIATION.
The right to the use of ground water of this state may be acquired only by appropriation. Such appropriation may be perfected by means of diversion and application to beneficial use or by means of the application permit and license procedure in this act provided. All proceedings commenced prior to the effective date of this act for the acquisition of rights to the use of ground water under the provisions of Chapter 2 of Title 42, Idaho Code, may be completed under the provisions of said chapter 2, and rights to the use of ground water may be thereby acquired. But the administration of all rights to the use of ground water, whenever or however acquired or to be acquired, shall, unless specifically excepted therefrom, be governed by the provisions of this act."
The Ground Water Act has been amended several times since its original enactment. Of particular importance to this case is the legislature's amendment of I.C. § 42-226, section 1 of the original Act, in 1953. This section was changed to provide:
2 (Emphasis in original.)
The legislature did not modify I.C. § 42-227 in 1953 and that section continued to provide that domestic wells "shall not be in any way affected by this act." I.C. § 42-227 was, however, amended in 1978 by an act entitled "AN ACT RELATING TO DOMESTIC WELL REGULATIONS; AMENDING SECTION 42-227, IDAHO CODE, TO CLARIFY THAT DOMESTIC WELLS ARE EXEMPT FROM THE PROVISIONS OF SECTION 42-229, IDAHO CODE." 1978 Idaho Session Laws, ch. 324, p. 819. I.C. § 42-227 now provides: 3
"42-227. Drilling and use of wells for domestic purposes excepted.--The excavation and opening of wells and the withdrawal of water therefrom for domestic purposes shall not be subject to the permit requirement under section 42-229, Idaho Code; providing such wells and withdrawal devices are subject to inspection by the department of water resources and the department of health and welfare and providing further that the drilling of such wells shall be subject to the licensing provisions of section 42-238, Idaho Code. Rights to ground water for such domestic purposes may be acquired by withdrawal and use.
In its order, the trial court held that prior to its amendment in 1978, I.C. § 42-227 exempted domestic wells from the "reasonable ground water pumping levels" limitation which I.C. § 42-226 places upon the doctrine of prior appropriation. The court further held that since Parker's well was in existence prior to the 1978 amendment of I.C. § 42-227, which modified the exemption for domestic wells, the amendment had no effect on the rights acquired by Parker in his well. We affirm the decision of the district court and hold that domestic wells drilled prior to 1978 are exempt from the provisions of I.C. § 42-226. 4
Wallentine argues that I.C. § 42-227 should be construed to exempt domestic wells only from the permit requirements of I.C. § 42-229 and not from the "reasonable pumping levels" provision of I.C. § 42-226. He argues that this construction of the Act is necessary in order to be consistent with the policy statements...
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