Pence v. Shivers

• Decision Date: 31 December 1924
• Citation: 232 P. 568,40 Idaho 181
• Parties: A. L. PENCE and VAN DEUSEN BROTHERS CO., a Corporation, Respondents, v. FRANK D. SHIVERS, Appellant
• Court: Idaho Supreme Court

232 P. 568

40 Idaho 181

A. L. PENCE and VAN DEUSEN BROTHERS CO., a Corporation, Respondents, v. FRANK D. SHIVERS, Appellant

Supreme Court of Idaho

December 31, 1924

PRIORITY RIGHTS TO THE USE OF WATER-ADVERSE USER-CONFLICTING EVIDENCE-FINDINGS-DECREE.

1. A right to the use of the waters of a stream may be acquired by prescription only when accompanied by such possession and use as excludes other claimants from the use thereof.

2. Where the findings of the trial court in an action involving priority rights to the use of water have ample support in the evidence, so far as material to the decree entered, the decree will not be disturbed, although the evidence is conflicting.

APPEAL from the District Court of the Seventh Judicial District, for Payette County. Hon. B. S. Varian, Judge.

Action to determine priority rights to the use of the waters of a stream. Decree for plaintiff. Affirmed.

Affirmed.

Ed. R Coulter and Fred C. Erb, for Appellant.

The use of waters of Dry Creek by the Pences did not amount to an appropriation of same. (1 Kinney on Irrigation, secs. 380 885, 911, 916; 2 Kinney on Irrigation, pp. 1365, 1369, 1547 1552; Van Camp v. Emery, 13 Idaho 202, 89 P. 752; Combs v. Agricultural C. Co., 17 Colo. 146, 31 Am. St. 275, 28 P. 966; Stickney v. Hanrahan, 7 Idaho 424, 63 P. 189; Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073; Kirk v. Bartholomew, 3 Idaho 367, 29 P. 40; Clark v. Hansen, 35 Idaho 449, 206 P. 808.)

J. T. Pence and D. A. Dunning, for Respondents.

The first appropriation of water for a useful or beneficial purpose gives a better right thereto. (Malad Valley Irr. Co. v. Campbell, 2 Idaho 411, 18 P. 52; Drake v. Earhart, 2 Idaho 750, 23 P. 541; Brossard v. Morgan, 7 Idaho 215, 61 P. 1031; Hutchinson v. Watson, 16 Idaho 484, 133 Am. St. 125, 101 P. 1059; Nielson v. Parke, 19 Idaho 727, 115 P. 488; Brose v. Board, 20 Idaho 281, 118 P. 504; Hillman v. Hardwick, 3 Idaho 255, 28 P. 438; Mellen v. Great Western Beet Sugar Co., 21 Idaho 353, Ann. Cas. 1913D, 621, 122 P. 30.)

Collecting water along natural watercourses at place of seepage gives no additional right. (Malad Valley v. Campbell, supra; 2 Kinney on Irrigation, 2d ed., p. 1135; Buckers Irr. Mill etc. Co. v. Farmers Indep. Ditch Co., 31 Colo. 62, 72 P. 49.)

Use must be hostile. (Bowman v. Bowman, 35 Ore. 279, 57 P. 546; Talbot v. Butte City Water Co., 29 Mont. 17, 73 P. 1111; Rhodes v. Barnes, 54 Wash. 145, 102 P. 884; Fuller v. Azusa Irr. Co., 138 Cal. 204, 71 P. 98.)

Verdict or decision on substantially conflicting evidence will not be disturbed. (Ainslie v. Idaho World Printing Co., 1 Idaho 641; Cash Hardware v. Sweeney, 9 Idaho 148, 72 P. 826; Hawkins v. Pocatello Water Co., 3 Idaho 766, 35 P. 711; Spencer v. Morgan, 10 Idaho 542, 79 P. 459; Johnson v. Fisher, 23 Idaho 561, 131 P. 8; Lott v. Oregon Short Line, 23 Idaho 324, 130 P. 88; Breshears v. Callender, 23 Idaho 348, 131 P. 15; Meeker v. Trapett, 24 Idaho 198, 133 P. 117.)

BRINCK, Commissioner. McCarthy, C. J., and Budge and Wm. E. Lee, JJ., concur.

OPINION

BRINCK, Commissioner

Frank D. Shivers appeals from a decree awarding respondents the prior right to the use of one and three-fifths second-feet, continuous flow, of the waters of Dry Creek, in Payette county, up to May 1st of each year, for the irrigation of respondents' lands, and enjoining appellant from interfering therewith.

Respondents own a ranch lying on the north side of Big Willow Creek in Payette county. Dry creek intersects and flows through their ranch and into Big Willow Creek at the south line of the ranch. Respondents have an ample water supply from Big Willow Creek to irrigate the greater part of their ranch, but to make this water available, the evidence tends to show that it is necessary to maintain a ditch from Willow Creek some three or more miles in length, extending across gullies, and along hillsides for a portion of the distance, so that in the early part of the irrigation season it is very difficult to maintain the ditch because of mud and clay being washed into it. The evidence for respondents is that because of the conditions obtaining in the respects last mentioned, it has never been practicable to use the ditch from Big Willow Creek until the latter part of April or the early part of May of each year; so that their irrigation earlier than that time has in each season been by water taken from Dry Creek. The waters of Dry Creek were thus used upon respondents' ranch from an early time, there being evidence of some such irrigation upon a small area prior to 1880, gradually increasing thereafter as more land was brought into cultivation. The Dry Creek water ceases to flow in May or June of each year, while the Big Willow Creek water supply is available until July or later. In 1889 the then owner of respondents' ranch conveyed to their predecessors the whole ranch, together with its appurtenances, the deed specifically describing the water right from Big Willow Creek, without mentioning the water right from Dry Creek. However, the grantee in that deed and his successors continued the use of the waters from Dry Creek, and up to the year 1900 Dry Creek waters were used for the irrigation of some forty or fifty acres of respondent's ranch. In 1901 respondents' predecessors took out another ditch from Dry Creek, bringing under irrigation additional acreage on their ranch irrigated from that stream so that more than eighty acres was thus irrigated, and respondents' evidence tends to show that since that time the use of Dry Creek water upon their lands has not decreased, and that during the whole period the Dry Creek waters have been relied upon entirely for irrigation up until about the 1st day of May of each year, and that then those waters becoming insufficient in quantity, and it becoming possible to utilize the long ditch from Big Willow Creek, the principal irrigation after May 1st has been from Big Willow Creek. Respondents' evidence also tends to show that no use by appellant or his predecessors ever interfered with their said use of the Dry Creek waters until the year 1920, at which time appellant took and claimed the right to the use of all the waters of Dry Creek for his farm situated on Dry Creek immediately above respondents' ranch. Based upon the conduct of appellant with reference to said water in 1920, respondents brought this suit to enjoin him from interfering with their water right and seeking to quiet their title to the use of the water from Dry Creek as against appellant. By cross-complaint appellant sets up his own prior use of Dry Creek and continued use adverse to respondents since 1902.

Appellant's land was not surveyed until about 1911, and he thereupon entered it as public land and acquired title in 1915. Prior to his entry, he...