Pyke v. Burnside

• Decision Date: 05 June 1902
• Citation: 69 P. 477,8 Idaho 487
• Parties: PYKE v. BURNSIDE
• Court: Idaho Supreme Court

69 P. 477

8 Idaho 487

PYKE v. BURNSIDE

Supreme Court of Idaho

June 5, 1902

WATER RIGHTS-APPROPRIATION.-Where one constructs a ditch and conducts water upon his land year after year, and permits the same to spread out over wild hay land for purpose of making hay, or using such land for pasture, he thereby secures the right to the use of sufficient water to irrigate such land provided the amount of water so used is sufficient for that purpose, such use being a beneficial one.

FAILURE TO POST AND FILE NOTICE.-Where an appropriator of water does not post and file notice of location as provided by law, his right only dates from the last act perfecting such appropriation.

(Syllabus by the court.)

APPEAL from District Court, Fremont County.

Cause remanded, with instructions.

S. C Winters, for Appellants.

That the prior appropriator has the first right to the use of the waters of a stream has been so often decided that it is so generally understood by everyone to be the law that it seems unnecessary to cite any cases upon the subject. (Hillman v. Hardwick, 3 Idaho 255, 28 P. 438, and cases cited.)

Caleb Jones and F. S. Dietrich, for Respondents.

Appropriation of water, waste of water, necessary proof, findings and review. (Millheiser v. Long, 10 N. Mex. 99, 61 P 111; Irrigation Ditch Co. v. Buffalo Creek Irr. Co., 25 Colo. 529, 55 P. 720; Becker v. Marble Creek Irr Co., 15 Utah 225, 49 P. 892, 1119; Cardoza v. Calkins, 117 Cal. 106, 48 P. 1010; Senior v. Anderson, 115 Cal. 496, 47 P. 454; Hindman v. Rizor, 21 Ore. 112, 27 P. 13; Fort Morgan Land etc. Co. v. South Platte Ditch Co., 18 Colo. 1, 36 Am. St. Rep. 259, 30 P. 1032; Combs v. Agricultural Ditch Co., 17 Colo. 146, 31 Am. St. Rep. 275, 28 P. 966.) Meaning of the term "appropriation." (See 2 Am. & Eng. Ency. of Law, p. 517, under head of "Appropriation.")

SULLIVAN, J. Quarles, C. J., and Stockslager, J., concur.

OPINION

SULLIVAN, J.

This is an action for quieting conflicting claims to water on Dry or Beaver Canyon creek, Fremont county.

The complaint is in the usual form, and defendants answered and set up by way of cross-complaint their claims to water. Before commencing to take testimony it was stipulated, by the respective parties, that the material allegations of the complaint and cross-complaints be admitted as denied, and that in entitling all papers or pleadings in this cause the following title might be used: "F. A. Pyke et al Plaintiffs, v. James Burnside et al., Defendants." The cause was tried and decree entered. Under said decree defendant Thomas B. Wharton was given eighty inches of water, dating from May 1, 1891, and the defendant Milt Russell was not allowed any water whatever. Both of said defendants appeal. Wharton's contention is that the court erred in not allowing him one hundred and sixty inches of water, dating from the year 1889. The evidence on said claim shows, without contradiction, the following facts: That appellant Wharton entered upon said land, which was then a part of the public domain, in July, 1889, and cut some hay, and constructed a ditch about eighteen inches wide on the bottom, about eight inches deep, and three-quarters of a mile long, from Modoc creek, a branch of said Beaver Canyon creek, to and upon said land, which ditch had a fall or grade of about one inch to the rod; constructed lateral ditches in 1890. That said land requires irrigation to produce a profitable crop, and all but five acres thereof is susceptible of irrigation. That he filed on said land in 1890, and made final proof therefor in 1897; has the land fenced, and has thereon a corral, a loghouse, and other building material, and has spent about $ 700 in improving said land. Cut a little hay on said land each year since taking possession of the same. That since 1891 has irrigated about eighty acres each year. The capacity of said ditch is not shown. Appellant, however, testified that he knew nothing about measuring water, but thought said ditch would carry more than one hundred inches. It is not shown that any notice of location was ever posted and filed. The evidence shows that appellant has irrigated about eighty acres of said land since 1891, and it is not shown that his said ditch had a capacity of more than eighty inches, and, as no location notice was posted and filed for record as required by law, his right would not relate back beyond 1891, when the first application of water was made. Appellant...