R.T. Nahas Co. v. Hulet

• Decision Date: 27 December 1983
• Docket Number: 14325,Nos. 14227,s. 14227
• Citation: 674 P.2d 1036,106 Idaho 37
• Parties: R.T. NAHAS CO., a California corporation, Robert T. Nahas and Eva C. Nahas, Plaintiffs-Respondents, v. Jay H. HULET and Gertrude Hulet, husband and wife, Defendants-Appellants.
• Court: Idaho Court of Appeals

Page 1036

674 P.2d 1036

106 Idaho 37

R.T. NAHAS CO., a California corporation, Robert T. Nahas and Eva C. Nahas, Plaintiffs-Respondents, v. Jay H. HULET and Gertrude Hulet, husband and wife, Defendants-Appellants.

Nos. 14227, 14325.

Court of Appeals of Idaho.

Dec. 27, 1983.

Rehearing Denied Feb. 6, 1984.

Philip A. Peterson and Terrence R. White, of Yost, White, Ahrens & Peterson, Nampa, for defendants-appellants.

Robert J. Koontz, of Elam, Burke, Evans, Boyd & Koontz and James W. Kiser, Boise, for plaintiffs-respondents.

WALTERS, Chief Judge.

Jay and Gertrude Hulet (hereinafter referred to as Hulet) appeal from a judgment recognizing the prior right of R.T. Nahas Co. and Robert and Eva Nahas (hereinafter referred to as Nahas) to divert winter runoff water from Sinker Creek, a tributary of the Snake River, located in Owyhee County, Idaho. Hulet presents ten issues which can be consolidated into six contentions, as follows. (1) Hulet's motion to dismiss, for failure to name the Department of Water Resources as a party, was improperly denied. (2) Several findings of fact concerning the size of Nahas' appropriation are not supported by substantial competent evidence. (3) The award of costs to Nahas against Hulet in the amount of the fee for Nahas' expert witness was improper. (4) The court should not have ordered that Hulet be responsible for costs incurred in the future by Nahas, in enforcing Nahas' water rights. (5) Nahas' appropriation for livestock water rights should not have been recognized because there was no physical diversion of water. (6) Neither actual nor punitive damages should be awarded in this case.

Additionally, Nahas seeks an award of attorney fees for representation on this appeal. We affirm the judgment of the court below in part, modify in part and remand for additional findings. We also deny recovery of attorney fees, on appeal, by Nahas.

The following facts are undisputed. In 1969, Nahas purchased over 1,000 acres of ranch land. On the land was a lake which was filled by means of a diversion from Sinker Creek and from which was pumped water for irrigation of a small part of the ranch. Although Nahas' predecessor in interest had applied for licensed water permits for diversion to the lake and for pumping from it, it appears that these permit rights were never perfected. Nahas based his claimed irrigation water rights on the constitutional method of appropriation--diversion and application to beneficial use. From the time Nahas purchased the ranch, he filled his lake by diverting winter runoff waters from Sinker Creek. During the summer months, Nahas diverted water from Sinker Creek, to the extent of previously decreed water rights acquired by his predecessors in interest, for part of his irrigation needs and he pumped water from the lake to satisfy the remainder of his irrigation needs. When Sinker Creek dried up, usually in July of each year, all of his irrigation needs for the remainder of the irrigation season were met by pumping water from the lake.

In 1976, Hulet completed construction of a dam on Sinker Creek, upstream from Nahas' lake. This dam was designed to catch and store water from Sinker Creek for Hulet's use. Hulet's dam was built pursuant to a water license which recited a priority date of October 28, 1975. Following completion of his dam, Hulet began storing all winter runoff water for his own use, depriving Nahas of winter runoff with which to fill his lake. Nahas brought suit to quiet title to his water rights, requesting that Hulet be enjoined from interfering with his water rights and asking for an award of costs, attorney fees and punitive damages. The parties agreed to bifurcate the trial, with the issue of damages to be tried later. After a court trial on the first issue, i.e., the water rights, a judgment was entered in favor of Nahas. The judgment was certified for appeal pursuant to I.R.C.P. 54(b) and Hulet appealed.

I. MOTION TO DISMISS

First, we consider whether the refusal of the trial court to dismiss the action, ¹ for failure to name the Department of Water Resources as a party, was error. Idaho Code § 6-401, relating to quiet title actions, was amended after the trial in this case, but before the court had entered its findings of fact, conclusions of law and judgment. The amendment states:

[A]ll actions to adjudicate water rights and obtain a decree as to water source, quantity, point of diversion, place of use, nature of use, period of use, and priority as against other water users shall be brought under the provisions of chapter 14, title 42, Idaho Code. [Emphasis added.]

1981 Idaho Sess.Laws ch. 265, § 1, p. 561. Section 2 of the same enactment amended I.C. § 42-1401 to require that the director of the Department of Water Resources shall be named as a defendant in all suits to adjudicate water rights. Id. at 562. These enactments took effect immediately. Id. at 565.

Hulet argues that this legislation was a change in procedure rather than a change in substantive rights. He contends that these amendments should be applied to all cases which had not been decided when the amendments took effect, including the case at bar. We disagree and conclude that no error occurred when the court denied Hulet's motion to dismiss.

Hulet moved to dismiss the action before trial was held. At the hearing on his motion, Hulet argued that the Department of Water Resources should resolve the competing claims of water rights. However, at that time, I.C. § 42-1401 simply provided that the district court may request the Department of Water Resources to examine a water system and report on proposed findings concerning water rights. See I.C. § 42-1401 (1977). This statutory language obviously does not deprive the district court of subject matter jurisdiction. By using the word "may," the Legislature granted to the district courts discretion to seek the department's assistance in resolving competing claims to water rights, if the court so desired. Even if the court did request that assistance, there was no requirement that the department be named as a party in order to accommodate that request. We conclude that, at the time the motion was made, the court was not required to name the Department of Water Resources as a party to the action nor to dismiss the action if the department was not made a party.

Hulet's reliance on an amendment which took effect later is misplaced. Hulet did not renew his motion to dismiss after the amendment took effect; therefore, the question whether the trial court should have granted a motion to dismiss when a post-trial amendment took effect was not properly raised before the district court and is not properly before this court on appeal. E.g. W.F. Construction Company, Inc. v. Kalik, 103 Idaho 713, 652 P.2d 661 (Ct.App.1982); accord Gemkist Farms, Inc. v. Bolen, 102 Idaho 906, 643 P.2d 1076 (Ct.App.1982) (failure to object to court's action in appointing a master waived the question of propriety of the action).

II. SIZE OF APPROPRIATION

Next we consider whether certain findings of fact concerning the size of Nahas' appropriation of water for diversion to his lake are correct. If the findings of fact of the trial court are supported by substantial, competent, though conflicting, evidence, those findings will not be disturbed on appeal. I.R.C.P. 52(a).

The district court found and adjudged that Nahas had a "superior" right to a quantity of water up to 729 acre-feet but not greater than the capacity of his unnamed lake. In his attack upon this finding Hulet first argues that the award should have been reduced by the amount of water which Nahas would receive from his summer irrigation water rights, which he estimates to be 649 acre-feet. However, evidence presented at trial supports the court's finding. Evidence was submitted that Nahas was irrigating 140.3 acres. 17.5 of those acres could not be irrigated from Nahas' lake. Of the remaining 122.8 acres, 59 acres could be irrigated only from the lake; 63.8 acres usually received half of its irrigation from the lake and half from Nahas' rights to summer flows of Sinker Creek. Moreover, evidence was presented to show, and the court found, that Sinker Creek is an unreliable source of water, and, during a dry year, there might be no summer flows to divert for irrigation. In that event, the court found, Nahas would provide all irrigation water from his lake, which would reduce the water level of the lake more than usual and require the diversion of a larger amount of runoff water to fill the lake to capacity during the following winter. The court determined that, in such a case, Nahas would have supplied from the lake 5 acre-feet of water per acre to all 122.8 acres, thereby using 614 acre-feet of water. The court recognized Nahas' maximum beneficial use of 614 acre-feet and, therefore his prior right to divert up to that amount of water, plus an allowance (explained more fully below) of 115 acre-feet for evaporation, from winter runoff flows of Sinker Creek, to store in his lake for irrigation. Substantial, competent evidence therefore supports the court's finding that Nahas was entitled to 729 acre-feet, or to such lesser amount as would fill his lake to capacity.

Hulet also argues that 450 acre-feet is the maximum diversion of winter runoff flows to which Nahas is entitled. Testimony at trial indicated that the pumps which drew irrigation water out of the lake could lower the water level by 10 feet, and that usually the water level is drawn down 6 to 8 feet during an irrigation season. Nahas' expert witness testified that, from the topography, he would estimate that the lake varied from 55 acres in surface area when full, to 35 acres when the lake was drawn down 10 feet. He then estimated the volume of water used in drawing the lake down 10 feet, to be 450 acre-feet, based upon an average surface area of the lake of 45 acres. Hulet argues that this establishes the maximum amount of water...