Pioneer Irr. Dist. v. American Ditch Ass'n

• Decision Date: 02 June 1931
• Docket Number: 5445
• Citation: 50 Idaho 732,1 P.2d 196
• Parties: PIONEER IRRIGATION DISTRICT, Respondent, v. AMERICAN DITCH ASSOCIATION et al., Defendants; UNITED STATES OF AMERICA, Intervenor and Appellant; NEW YORK IRRIGATION DISTRICT and BOISE-KUNA IRRIGATION DISTRICT, Appellants
• Court: Idaho Supreme Court

1 P.2d 196

50 Idaho 732

PIONEER IRRIGATION DISTRICT, Respondent, v. AMERICAN DITCH ASSOCIATION et al., Defendants; UNITED STATES OF AMERICA, Intervenor and Appellant; NEW YORK IRRIGATION DISTRICT and BOISE-KUNA IRRIGATION DISTRICT, Appellants

No. 5445

Supreme Court of Idaho

June 2, 1931

WATER AND WATERCOURSES - APPROPRIATION - PROPERTIES - DUTY OF WATER-COURTS-JURISDICTION.

1. So-called constitutional, as distinguished from statutory method of appropriating water, contemplates no waste, and is sanctioned by courts.

2. Application filed with state engineer, which ripened into license, did not deprive appropriator of priority, given by court, previously acquired by diversion and diligent beneficial application.

3. Decree giving appropriator, on showing of due diligence in construction of irrigation system and proper capacity of ditch, additional water contemplated in original notice, as of its date, held proper under doctrine of relation.

4. If canal, when diligently completed, could carry full amount of water contemplated in original notice, or portion thereof above amount determined in adjudicated decree, and appropriators applied it to beneficial use, they were entitled thereto as of date of notice.

5. Appellate court held not bound by trial judge's consideration of testimony not given orally before judge to same extent as if witness had appeared in person.

6. Intervenor held bound by stipulation conceding to co-defendant right to certain amount of water under certain claim.

7. Record justified finding water carried for intervenor in water action after canal was enlarged was under later of two claims.

8. Finding that licensee submitted proof of beneficial use of 1647 second-feet of water to state engineer held inconsistent with awarding only 1062.08 second-feet.

9. Holding that all work done subsequent to decree fixing water rights was under later of two claims held inconsistent with holding award by state engineer under later claim included quantity awarded in decree under earlier claim.

10. Decree determining water rights, making award subject to rights awarded in adjudicated decree, held proper, present rights being later in time.

11. Decree determining water rights, making award subject to rights awarded in adjudicated decree, held proper in view of request in complaint.

12. State's restrictive five-year requirement for completion of irrigation appropriations held binding on United States engaged in reclamation project (Laws 1903, p. 226, sec. 2; 43 U.S. C. A., sec. 383).

13. As regards question whether United States, engaged in reclamation project, was bound by state law limiting time for completion of irrigation appropriations, public waters held not governed by same principle as public lands (Laws 1903, p 226, sec. 2; 43 U.S. C. A., sec. 383).

14. United States may not be sued without its consent, which may be given only by Congress.

15. United States may sue on behalf of reclamation project to determine water rights.

16. United States, suing for federal reclamation project in state court, would be bound by decree (43 U.S. C. A., sec. 383).

17. United States may sue in court of its own choice.

18. In action in state court to determine water rights in which United States intervened by leave and did not request removal to federal court, state court had jurisdiction to enter decree fixing priorities of United States (43 U.S. C. A sec. 383).

19. Where parties cannot agree, court may construe stipulation.

20. Stipulation determining duty of water should be clear and mutually understood by all parties.

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

Action adjudicating water rights of Boise River. Decree for Plaintiff. Affirmed in part, reversed in part, and remanded.

Decree affirmed in part, reversed in part and cause remanded. Petition for rehearing denied.

Oppenheim & Lampert, H. E. Ray, United States Attorney, B. E. Stoutemeyer, District Counsel, United States Bureau of Reclamation, G. W. Grebe and Charles P. McCarthy, for Appellants.

The waste of water is a misdemeanor under the Idaho statute, and is contrary to public policy as well as a violation of the criminal statutes. The courts therefore will not assume that the legislature intended such a construction of the water appropriation statutes as would require a waste of water and the doing of vain and useless things in violation of public policy and the criminal statutes, when another and more reasonable construction in harmony with public policy and the criminal statutes is possible. (C. S., sec. 8529; Const., art. 15; Sess. Laws 1899, secs. 2-10, p. 380; Sutherland, Statutory Construction, 2d ed., pp. 911-916; Jacobs v. Board of Supervisors, 100 Cal. 121, 34 P. 631; Waukegan v. Foote, 91 Ill.App. 588; Pennsylvania Co. v. State, 142 Ind. 428, 41 N.E. 937; State v. Mason, 153 Mo. 23, 54 S.W. 524; Territory v. Ashenfelter, 4 N.M. (Gild.) 93, 12 P. 879; State v. Schlitz Brew. Co., 104 Tenn. 715, 78 Am. St. 941, 59 S.W. 1033.)

The trial court's decree disregarded the plain provision of the law that a water license issued by the state engineer (commissioner of reclamation) is prima facie evidence of a right to the use of the amount of water therein mentioned. (C. S., sec. 5580; Basinger v. Taylor, 30 Idaho 289, 164 P. 522; Big Wood Canal Co. v. Chapman, 45 Idaho 380, 263 P. 45.)

To reduce the amount of water mentioned in the state engineer's license No. 430, to the amount as decreed by the trial court, it was required to assume that the same duty of water prevailed during the early history of the Boise project as now prevails. This was in error. "Duty of water" is never fixed but progresses with the development of an irrigation project. (Farmers' Co-operative Ditch Co. v. Riverside Irr. Dist., 16 Idaho 525, 102 P. 481; Gerber v. Nampa & Meridian Irr. Dist., 16 Idaho 1, 100 P. 80; 19 Idaho 765, 116 P. 104; Hough v. Porter, 51 Ore. 318, 95 P. 732, 98 P. 1083, 102 P. 728; United States v. Conrad Inv. Co., 156 F. 123; Kinney on Irrigation and Water Rights, 2d ed., pp. 1592-1595.)

There is no justification in law or fact for the provision of the trial court's decree wherein the plaintiff and the defendant, Farmers' Co-operative Ditch Company, were given the benefit of the "doctrine of relation" where their respective rights were admittedly not initiated under the statutory method of appropriation. (Reno v. Richards, 32 Idaho 1, 178 P. 81; Crane Falls Co. v. Snake River Co., 24 Idaho 63, 133 P. 655; Basinger v. Taylor, supra; Pyke v. Burnside, 8 Idaho 487, 69 P. 477; Nielson v. Parker, 19 Idaho 727, 115 P. 488; Youngs v. Regan, 20 Idaho 275, 118 P. 499; Furey v. Taylor, 22 Idaho 605, 127 P. 676; Morris v. Bean, 146 F. 425; 159 F. 651, 86 C. C. A. 519; 221 U.S. 485, 31 S.Ct. 703, 55 L.Ed. 821.)

The water appropriation statutes of the state of Idaho, wherein they require the completion of diversion works and the application of waters diverted to beneficial use within certain time limits, are statutes of limitation, and with respect to the rights of the United States are subversive to the federal Constitution and laws. (U. S. Const., art. 6; Davis v. E. I. Duport De Nemours Co., 287 F. 522; 263 U.S. 694, 44 S.Ct. 36, 68 L.Ed. 510; 264 U.S. 456, 44 S.Ct. 364, 68 L.Ed. 788; San Francisco Sav. Union v. Irwin, 28 F. 708; 136 U.S. 578, 10 S.Ct. 1064, 34 L.Ed. 540; United States v. Norris, 222 F. 14, 137 C. C. A. 552; United States v. Pitan, 224 F. 604; 241 F. 364, 154 C. C. A. 244.)

Scatterday & Stone, Fremont Wood, T. L. Martin, Frank T. Wyman, J. M. Thompson and Frank T. Wyman, Jr., for Respondents.

Where a claimant, without compliance with the statute, diverts water from a stream through a ditch constructed by him and carries it to the place of intended use, he has a reasonable time thereafter within which to apply it to a beneficial use and, having so applied it, his right will date from the time he actually carried the diverted waters to his lands. (Conant v. Jones, 3 Idaho 606, 32 P. 250; Hall v. Blackman, 8 Idaho 272, 68 P. 19; Brown v. Newell, 12 Idaho 166, 85 P. 385; Bennett v. Nourse, 22 Idaho 249, 125 P. 1038; Muir v. Allison, 33 Idaho 146, 191 P. 206; In re Hood River, 114 Ore. 112, 227 P. 1065; In re Water Rights in Silvies River, 115 Ore. 27, 237 P. 322; Fruitland Irr. Co. v. Kruemling, 62 Colo. 160, 162 P. 161; Ripley v. Park Center Land & Water Co., 40 Colo. 129, 90 P. 75; Windsor Reservoir & Canal Co. v. Lake Supply Ditch Co., 44 Colo. 214, 98 P. 729.)

A permit is not a water right. It is a mere declaration of intention. It gives constructive notice while the building of a ditch and the diversion of water thereby give actual notice. (Sand Point W. & L. Co. v. Panhandle Dev. Co., 11 Idaho 405, 83 P. 347; Wells v. Mantes, 99 Cal. 583, 34 P. 324.)

McElroy & Chalfant, Amici Curiae.

GIVENS, J. Lee, C. J., and Varian and McNaughton, JJ., concur.

OPINION

GIVENS, J.

January 18, 1906, there was rendered in the district court for Canyon county, the Stewart Decree, fixing the priorities and duty of water of all of the then users of water from Boise River. This decree was affirmed by the supreme court as to priorities, but reversed as to the duty of water. (Farmers' Co-operative Ditch Co. v. Riverside Irr. Dist., 16 Idaho 525, 102 P. 481.) That action is still pending in the trial court. Thereafter, in July, 1913, the instant action was instituted for the purpose of determining the priorities and duty of water of those rights accruing since the Stewart Decree, or not therein finally determined.

The United States, not a party to the former suit, but by reason of its subsequent construction and ownership of a federal reclamation project, and succession to, and...