Payette Lakes Protective Ass'n v. Lake Reservoir Co, 7333

• Decision Date: 28 January 1948
• Docket Number: 7333
• Citation: 68 Idaho 111,189 P.2d 1009
• Court: Idaho Supreme Court
• Parties: PAYETTE LAKES PROTECTIVE ASS'N v. LAKE RESERVOIR CO

189 P.2d 1009

68 Idaho 111

PAYETTE LAKES PROTECTIVE ASS'N
v.
LAKE RESERVOIR CO

No. 7333

Supreme Court of Idaho

January 28, 1948

As Corrected on Denial of Rehearing Feb. 24, 1948. [68 Idaho 115]

As Corrected on Denial of Rehearing February 24, 1948. [189 P.2d 1010]

Appeal from District Court, Seventh Judicial District; Valley County; Charles F. Koelsch, Presiding Judge.

Affirmed.

T. L. Martin and Fred M. Taylor, both of Boise, for appellant.

The agreement between appellant and respondent, dated November 8, 1924 (ff. 1934-1942) is against public policy and void in that it wholly denies, or limits the right of appellant to appropriate and apply waters of the State of Idaho to beneficial use. Article 15, Sec. 3, Constitution of Idaho; Section 41-101 I.C.A.; Farmer's Cooperative Ditch Co. v. Riverside Irr. Dist., 16 Idaho 525, 102 P. 481; Sanborn v. Pentland, 35 Idaho 639, 208 P. 401; State Water Conservation Board v. Enking, 56 Idaho 722, 58 P.2d 779; Knutson v. Huggins, 62 Idaho 662, 668, 115 P.2d 421; Boise Payette Lumber Co. v. School Dist., 46 Idaho 403, 268 P. 26; Restatement, Contracts, p. 671, Sec. 369; People v. Burke, 72 Colo. 486, 212 P. 837, 30 A.L.R. 1085.

By the term "normal high water line" is meant what the language imports, a water mark. It is a mark made by water showing the elevation to which the water has raised and stood for sufficient time to make a definite mark and to change the character of the vegetation below this mark. Raide v. Dollar, 34 Idaho 682, 690, 203 P. 469; Carpenter v. Board of Com'rs, 56 Minn. 513, 58 N.W. 295; Anderson v. Ray, 37 S.D. 17, 156 N.W. 591.

The court erred in rejecting the Exhibit M offered by the defendant. A previous decree in a water case, involving the same water rights, but not the same parties entirely, and particularly a decree establishing rights as between the State of Idaho and an appropriator, is rightly to be received; rejection is reversible error. And that the decree was on stipulated facts makes no difference. Neil v. Hyde, 32 Idaho 576, 186 P. 710; Mays v. District Court, 34 Idaho 200, 200 P. 115.

Contracts must be construed according to the intent of the parties at the time when they were made; vague and indefinite contracts cannot be made over and construed into agreements, by the court making contracts for the parties. Bratton v. Morris, 54 Idaho 743, 37 P.2d 1097; Page on Contracts (2d Ed.) Sec. 2021; Ohms v. Church, 64 Idaho 262, 130 P.2d 679; Durant v. Snyder, 65 Idaho 678, 151 P.2d 776; People v. Interstate Eng. Co., 58 Idaho 457, 75 P.2d 997.

J. L. Eberle, Carey H. Nixon and Paris Martin, Jr., all of Boise, for respondent.

A judgment or decree is binding only upon the parties to the action and is not admissible as evidence of the facts therein determined against a party who was not concluded by such decree. Ada County v. Bottolfsen, 61 Idaho 64, 97 P.2d 599; Carrington v. Crandall, 65 Idaho 525, 147 P.2d 1009; Lambrix v. Frazier, 31 Idaho 382, 171 P. 1134; Collard v. Universal Auto Insurance Co., 55 Idaho 560, 45 P.2d 288.

Where a court of equity finds a violation of a contract relating to certain covenants or restrictions pertaining to high and low water levels of a reservoir, and the violating party fails to show to the court any record of its operation of said reservoir for over a quarter of a century, there is a necessity for regulatory provisions in the decree and the court has inherent power to require the maintenance and keeping of proper markers, devices, and records and retention of jurisdiction for such purpose, and such requirement is not taking away from executive officials of the state any control over the distribution of water. 2 Wiel on Water Rights in Western States, 3d ed., 1113; Montezuma Canal Co. v. Smithville Co., 218 U.S. 371, 31 S.Ct. 67, 54 L.Ed. 1074; Hough v. Porter, 51 Or. 318, 95 P. 732, 98 P. 1083, 102 P. 728; Whited v. Cavin, 1909, 55 Or. 98, 105 P. 396; Taylor v. Hulett, 15 Idaho 265, 272, 97 P. 37, 19 L.R.A.,N.S., 535; 1 Wiel on Water Rights in Western States, 3d ed., 704; Burr v. Maclay Rancho Co., 1909, 154 Cal. 428, 98 P. 260.

Givens, Chief Justice. Holden and Hyatt, JJ., and Sutphen and Porter, District Judges, concur.

OPINION

Givens, Chief Justice. [189 P.2d 1011]

[68 Idaho 116] Respondent (plaintiff below) is an Idaho non-profit, membership, no-capital-stock corporation organized March 19, 1924, to -- among other things -- promote the improvement and development of Payette Lakes and the surrounding region into a more [68 Idaho 117] beautiful and useful State Recreational Park; encourage, aid and assist in the development, and establishment of amusements, entertainments, recreational and healthful enjoyments and activities of all wholesome natures suitable for that locality; protect this region and Payette Lakes from all injurious uses or any encroachments opposed to the fullest and best use as a recreational park; purchase, hold and convey real and personal property and affiliate or associate with itself similar associations.

Appellant is an Idaho corporation organized and existing for the purpose, among others, of acquiring, owning and distributing water for beneficial purposes upon the lands of its stockholders, Emmett Irrigation District, Farmers' Cooperative Company, Letha Irrigation Company, Enterprise Ditch Company and Lower Payette Ditch Company in Gem and Payette Counties, encompassing an irrigated area of approximately 65,000 acres, highly productive of agricultural and horticultural crops.

Pursuant to then Section 5574, Idaho Complied Statutes, now Section 41-208, I.C.A., hearing for submission of proof of completion of a storage appropriation for 50,000 acre feet of water in Big Payette Lake by appellant, acquired from the original applicant W. A. Coughanour, was noticed and advertised by the Commissioner of Reclamation for October 30, 1924, to be held before the Probate Judge of Valley County at Cascade. Thereupon, an adverse 17-point protest was interposed by Carl E. Brown, Charles W. Luck, Paris Martin, William B. Boydston and Fenton G. Cottingham, as individuals and property owners, owning property upon the shores of Big Payette Lake, and respondent, reciting [189 P.2d 1012] it was then composed of 150 residents, taxpayers, and property owners of the State, for themselves and all persons similarly situated.

Ensuing negotiations between protestants and appellant and relevant correspondence resulted in a contract ^[1] executed by the appropriate, [68 Idaho 118] duly authorized officers of both contracting corporations.

The protest was accordingly withdrawn and the permit or certificate of completion of reservoir and right to store water was issued December 8, 1924.

In the present suit, respondent sought and secured an injunction restraining appellant from violating the contract by excessively raising or lowering and unseasonably holding water in the Lake.

The amended complaint alleged respondent's corporate existence and capacity with membership comprising owners and lessees of lands and property fronting upon and having beaches along the shores of the Lake, the making of the contract, incorporating it in the complaint, and "That said defendant, notwithstanding said agreement of November 8, 1924, has asserted rights contrary to and in excess of those specifically provided for in said agreement, has failed to comply with the terms thereof, and has violated the provisions and agreements therein contained, and in particular (a) has raised the waters of said Big Payette Lake above the normal high water line and upwards of four feet beyond such line; (b) has lowered the waters of said Big Payette Lake below the normal low water line; (c) has asserted a right to use and has used waters of said Big Payette Lake in excess of those between the normal high and low water lines thereof; (d) has failed to draw off said waters so as to interfere as little as possible with the bathing beaches on the shores of said lake, but on the contrary, has drawn off such waters as to greately interfere with the bathing beaches on the shores of said lake and the use thereof by the plaintiff herein and its members in that during the months of June, July and August, the Defendant did, by means of dams and headgates, so obstruct the natural flow of the water of said Big Payette Lake as to cause [189 P.2d 1013] said water to raise to the extent of about [68 Idaho 119] four feet in height above the normal high water line thereby causing the water of said Big Payette Lake to raise, back up and flow over and upon the said beaches and bathing beaches on the shores of said lake and thereby submerge, injure and destroy the same; and (e) has failed to use said waters in an as accommodating way as possible, but, on the contrary, has interferred more than necessary with the natural fluctuation of said waters and in the use thereof, in that during the months of June, July and August, the defendant did, by means of dams and head-gates so obstruct the natural flow of the water of said Big Payette Lake as to interfere with the natural fluctuation of said water and in the use thereof and has caused the bathing beaches and lands on the shores of Big Payette Lake to be overflowed and thereby injured and destroyed trees, banks, buildings and foundations, as well as the lands on the shores of said Big Payette Lake, all to the irreparable damage and injury of the plaintiff herein and its members; * * *."

Appellant demurred on the grounds the complaint failed to state a cause of action, respondent lacks legal capacity to sue, is not the real party in interest; uncertainty, ambiguity and unintelligibility in not alleging what the normal high and low water lines were; whose rights respondent sought to protect, or to what extent appellant had used the waters of the Lake above and below the normal high and low water lines; and moved to strike the portions of the amended...