Le Quime v. Chambers

• Decision Date: 20 November 1908
• Parties: DELPHINE LE QUIME and RICHARD R. LOWE, Appellants, v. JOSEPHUS CHAMBERS, Respondent
• Court: Idaho Supreme Court

98 P. 415

15 Idaho 405

DELPHINE LE QUIME and RICHARD R. LOWE, Appellants, v. JOSEPHUS CHAMBERS, Respondent

Supreme Court of Idaho

November 20, 1908

WATER APPROPRIATIONS ON PUBLIC LANDS-PATENTS SUBSEQUENT TO WATER APPROPRIATION AND EASEMENT-SEEPAGE AND PERCOLATING WATERS SUBJECT TO APPROPRIATION.

1. Where L. enters upon a tract of land claimed and held by I as a homestead entry, and appropriates and diverts the waters of a spring thereon and conveys the same by means of a pipe to other lands, and thereafter I.'s homestead entry is canceled and C. enters the land as a homestead, the latter takes the same subject to the burden and servitude of L.'s water appropriation and easement, and under the statute of this state and sec. 2339 of the Rev Stat. of the U.S. , such water right and easement will be protected by the courts.

2. In this case I. did not complain of the entry, appropriation and diversion made by L., and the government could not do so because it has given its express assent thereto by statute and the land was therefore impressed with L.'s water right, appropriation and easement at the time of the entry thereof by C.

3. Under the statutes of this state, section 1 of the act of March 11, 1903 (Sess. Laws 1903, p. 223), any person association or corporation within the state may appropriate and divert "the waters of any natural streams, springs or seepage waters or lakes or other public waters in the state of Idaho" for any useful or beneficial purpose.

4. It can make no difference that the waters collecting and forming what is known as a spring are seepage and percolating waters, rather than from a well-defined subterranean stream, so long as such waters gravitate to and collect at a certain and definite point, and there constitute a volume of water known and designated as a spring. In either case such waters found upon the public domain are subject to location and appropriation for any useful or beneficial purposes under the statutes of this state, and are therefore protected and reserved from future disposition under the act of Congress, sec. 2339, Rev. Stat. of the U.S.

(Syllabus by the court.)

APPEAL from the District Court of the Second Judicial District, for the County of Nez Perce. Hon. Edgar C. Steele, Judge.

Action by plaintiffs to quiet their title to a certain water right, appropriation and easement, and to enjoin and restrain defendant from disturbing or interfering therewith. Application for injunction pendente lite denied, and plaintiffs appealed. Order reversed.

Reversed and remanded, with direction. Costs awarded in favor of appellants.

John O. Bender, for Appellant.

This land must have reverted to the government of the United States, and become again a part of the public domain, from the Irwin entry, before the defendant could have entered it; and whether the appropriation of water by the plaintiffs was made during the Irwin entry or while the land was a part of the public domain is immaterial. (Maffet v. Quine, 93 F. 347.) The government does not guarantee to whom it gives a preference right that he shall take the land in the same condition as it was under the first entry, but it is inserted in the patent that the entryman takes the land subject to any vested or accrued water rights. (Wagstaff v. Collins, 97 F. 8, 38 C. C. A. 19; U.S. Rev. Stat. , sec. 2340.) But it does guarantee to the appropriator of water on the public domain, when the appropriation is acknowledged by local custom, laws and the decision of the courts, protection in the same. (U. S. Rev. Stat., sec. 2339.)

Under the facts in this case it is not material at what time this land reverted to the government, since it necessarily became a part of the public domain at some time before defendant's entry and while plaintiffs had appropriated the water. (San Jose Land and Water Co. v. San Jose Ranch Co., 129 Cal. 673, 62 P. 271.)

The fact that this water flows from a spring which may owe its existence to seepage, percolation and filtration from tiny feeders beneath the soil and through the rock, as claimed by defendant, does not exclude it from appropriation under the law. (De Necochea v. Curtis, 80 Cal. 397, 20 P. 564, 22 P. 198; Cohen v. Le Ganada Land & Water Co., 142 Cal. 437, 76 P. 48; Katz v. Walkinshaw, 141 Cal. 116, 99 Am. St. Rep. 35, 70 P. 663, 74 P. 766, 64 L. R. A. 236; Silver Peak Mines v. Valcalda, 79 F. 889; Williams v. Harter, 121 Cal. 47, 53 P. 407; Ely v. Ferguson, 91 Cal. 187, 27 P. 587.)

The patentee of land has no claim upon the water flowing through the same as against a prior appropriator. (Drake v. Earhart, 2 Idaho 756, 23 P. 541; Mohl v. Lamar Canal Co., 128 F. 778.)

Clay McNamee, for Respondent.

"The law controlling the rights to subterranean waters not running through a channel or defined course is very different from that affecting the rights of surface streams. In the former case the water belongs to the soil, is a part of it, is owned and possessed as the earth is; it may be used, removed, and controlled to the same extent by the owner; and no action will lie for injuries caused by cutting it off." ( Southern Pacific R. Co. v. Dufour, 95 Cal. 615, 30 P. 783, 19 L. R. A. 92; Hanson v. McCue, 42 Cal. 303, 10 Am. Rep. 299; Lux v. Haggin, 69 Cal. 394, 10 P. 674; Delhi Trustees v. Youmans, 50 Barb. 316; Mosier v. Caldwell, 7 Nev. 363; Metcalf v. Nelson, 8 S.D. 87, 59 Am. St. Rep. 747, 65 N.W. 911; Wilson v. City of New Bedford, 108 Mass. 265, 11 Am. Rep. 352; Roath v. Driscoll, 20 Conn. 533, 52 Am. Dec. 352; Frazier v. Brown, 12 Ohio St. 294; City of Emporia v. Soden, 25 Kan. 588, 37 Am. Rep. 265; Clark v. Conroe, 38 Vt. 469; Taylor v. Fickas, 64 Ind. 167, 31 Am. Rep. 114; Meyer v. Tacoma Light & Water Co., 8 Wash. 144, 35 P. 601.)

AILSHIE, C. J. Sullivan, J., and Stewart, J., concur.

OPINION

AILSHIE, C. J.

This is an appeal from an order denying the plaintiffs an injunction pendente lite. There seems to be practically no dispute between the parties as to the facts in the case. The only question to be determined is one of law. On June 22, 1905, one Wm. D. Irwin made homestead entry at the Lewiston Land Office for the NW. 1/2 of the SW. 1/4 of Sec. 21, and the NE. 1/4 of the SE. 1/4 and the E. 1/2 of the NE. 1/4 of Sec. 20, Tp. 36 N., R. 5 W., B. M. Nez Perce county. On about November 15, 1905, plaintiffs herein, with the consent of Irwin, began working on and developing the waters of a spring situated on this homestead, acting under the assumption that the old statute of this state governing the location and appropriation of waters was still in effect, proceeded to post notices of the appropriation at the point of diversion, which was at the spring, and in pursuance thereof developed and diverted the waters of the spring. Thereafter, and on learning that the law had been amended, the plaintiffs applied to the state engineer for a permit to appropriate the waters, and thereafter, and on April 21, 1906, received permit No. 19,060 from the state engineer, and thereafter and in August of the same year, made proof of the completion of the works and the application of the water to a beneficial use under the provisions of this permit. The plaintiffs constructed a pipe-line from this spring to the land belonging to them, conveying the water to the place of intended use, and have ever since been using the water for domestic purposes and irrigation, and apparently have no other means of supplying themselves either for domestic purposes or purposes of irrigation. The water so appropriated amounts to about one-fourth of a cubic foot per second. On February 23, 1906, the defendant, who is respondent herein, filed a contest in the United States land office at Lewiston against the Irwin homestead, alleging the failure of Irwin to establish a bona fide residence on the land as provided by law and the regulations of the land office. The contest was thereafter heard in the United States land office, and a decision was rendered recommending the cancellation of the homestead entry. An appeal was taken from that decision to the commissioner of the general land office, and thereafter and on July 15, 1907, the commissioner rendered his decision affirming the judgment of the local land office. Thereafter an appeal was taken to the secretary of the interior, and on January 28, 1908, the decision of the commissioner and of the local land office were affirmed. On March 30, 1908, the Irwin homestead entry was ordered canceled, and the respondent herein, Chambers, was given a preference right to file on the land. Thereafter and on April 8, 1908, and in pursuance of the preference right given him, Chambers made his homestead entry No. 12,558 on this tract of land. Thereafter and on about April 15, 1908, Chambers tore up and removed the pipe that plaintiffs had placed across this land and through which the waters were conveyed from this spring to plaintiffs' premises. The plaintiffs thereupon commenced this action to secure a perpetual injunction against defendant, enjoining and restraining him from interfering with plaintiff's water right and pipe-line. The water in controversy and involved in this action comes wholly from a spring that arises on the land in question, now the homestead of defendant and respondent, and at no time prior to this diversion does it appear that it ever flowed a sufficient quantity or volume to form a surface stream or carry any water beyond the limits of this homestead. What little water did flow from the spring was immediately taken up by the soil adjacent to the spring.

The appellants contend that they originally went on to this land with the consent of Irwin, the first homestead entryman, and that so far as the government of the United States is concerned they had the consent...