Rabido v. Furey

• Decision Date: 12 April 1920
• Citation: 33 Idaho 56,190 P. 73
• Parties: MARY RABIDO and JOSEPH RABIDO, Respondents, v. SHERMAN FUREY, Appellant
• Court: Idaho Supreme Court

190 P. 73

33 Idaho 56

MARY RABIDO and JOSEPH RABIDO, Respondents, v. SHERMAN FUREY, Appellant

Supreme Court of Idaho

April 12, 1920

WATERS AND WATERCOURSES-APPLICATION-PERMIT-SOURCE OF SUPPLY-APPROPRIATION-NATURAL CHANNEL.

1. Rights acquired under a water license are confined to the water described in the application.

2. One who diverts water from the ditch of another against the will and without the consent of the latter cannot thereby initiate a water right.

3. Where a water right is dependent upon appropriation rather than application for a permit, priority depends on application of the water to a beneficial use, not on date of commencement of construction of diversion works.

APPEAL from the District Court of the Fourth Judicial District, for Blaine County. Hon. F. J. Cowen, Judge.

Suit to determine priority to the right to use the water of Jagles Springs. Judgment for plaintiffs. Modified.

Case remanded with instructions. No costs awarded.

Hawley & Hawley and O. W. Worthwine, for Appellant.

The appellant being the first to appropriate the waters to a beneficial use is entitled to the priority of use of said waters. (Hillman v. Hardwick, 3 Idaho 255, 28 P 438; Geertson v. Burrock, 3 Idaho 344, 29 P. 42; Dunniway v. Lawson, 6 Idaho 28, 51 P. 1032; Nielson v. Parker, 19 Idaho 727, 730, 115 P. 488; Lee v. Hanford, 21 Idaho 327, 330, 121 P. 558; Bower v. Moorman, 27 Idaho 162, Ann. Cas. 1917C, 99 147 P. 496; Kirk v. Bartholomew, 3 Idaho 367, 29 P. 40.)

Clark &amp Brodhead, for Respondents.

"Where persons have, by their own exertions, developed a supply of water, theretofore not a part of the waters of a creek, and not before available to the users of the stream, they have the first right to take and use such increase." (Smith v. Duff, 39 Mont. 382, 133 Am. St. 587, 102 P. 984; Ripley v. Park Center Land & Water Co., 40 Colo. 129, 90 P. 75; Churchill v. Rose, 136 Cal 576, 69 P. 416, 417; Cardelli v. Comstock Tunnel Co., 26 Nev. 284, 66 P. 950; Pomona Land & Water Co. v. San Antonio Water Co., 152 Cal. 618, 93 P. 881; Farnham on Waters, pp. 2087, 2088; 2 Kinney, 2d ed., p. 1340.)

MCCARTHY District Judge. Rice, J., Morgan, C. J., concurring. MORGAN, C. J., Dissenting.

OPINION

McCARTHY, District Judge.

--This is an action brought by respondents in the district court in and for Blaine county to determine the relative rights of the parties in and to the waters of Jagles or Goggles Springs, in Blaine county. The district court entered judgment, awarding to respondents the right to the use of .8 second-feet of the waters of the springs for the irrigation of land owned by respondent Mary Rabido, described in the amended complaint, with date of priority of April 1, 1904, and to appellant the right to the use of 1.4 second-feet thereof for the irrigation of land described in his answer and cross-complaint, with date of priority of December 4, 1907. From the judgment and from an order denying a motion for a new trial appellant appeals to this court. The principal point raised by appellant is that the evidence is insufficient to sustain the findings of fact and judgment.

It is admitted that respondent Mary Rabido, and appellant are the owners of the lands described in their pleadings; that they are agricultural in character, and require the artificial application of water in order to raise profitable crops. The springs in question are situate on unoccupied public land of the United States, some distance up a canyon known as Jagles canyon. While there is some conflict in the evidence, the preponderance of the evidence shows that respondents cleaned out the springs, constructed a ditch to conduct the water around a flat situate some distance below them, cleaned out the channel through which the water flowed down the canyon, thus succeeding in bringing the water to the mouth of the canyon, and then conducted it into a ditch which they had constructed.

The evidence is sufficient to sustain the finding of the trial court that prior to the time respondents performed this labor the water from the springs never reached the mouth of the canyon, and that it was entirely the result of their labor that the water became available for irrigation purposes. However, the evidence shows that the work commenced in 1906 instead of 1904 as found by the court. As a result of respondents' labor, in the fall of 1907, the water came down to the mouth of the canyon and into the ditch which they had built, but they did not apply the water to a beneficial use that fall.

In December, 1907, appellant discovered the water coming out of the canyon and, without making any investigation to determine its source, filed in the office of the state engineer, on December 4th of that year, an application for a permit to appropriate 1 2/5 second-feet of the waters of Goggles Creek, giving the source of supply as Goggles Creek, and the location of the point of diversion as the mouth of Goggles Creek canyon. In May, 1908, he took some water from the ditch which respondents had constructed near the mouth of the canyon, conducted it to his land and applied it to a beneficial use. The finding that about May 1, 1908, appellant applied to a beneficial use 1.4 second-feet of said water is hardly sustained by the evidence. The evidence shows that in the spring of 1908, appellant applied said water on about 3 1/2 acres; in 1909 and 1910 on about the same amount of land, and in 1911 on about eighty acres. There is no definite evidence to show just how much water he applied on his land at those times. It is clear, however, that he did apply some of said water upon his land before the respondents applied any of it on the land described in their complaint, and that he diverted it from the ditch which respondents had built near the mouth of the canyon. Thereafter, he made proof of completion of works, and on March 5, 1913, a water license was issued to him for 1.4 second-feet of the waters of Goggles Creek, the date of priority designated in said license being February 3, 1908.

On June 3, 1908, respondent Joseph Rabido and Ben Burnett filed in the state engineer's office an application for a permit to use 6.2 second-feet of the waters of Jagles Springs, which was approved by the state engineer on June 13, 1908. The application specified that the waters were to be used on a desert claim of Joseph Rabido. Any rights which may have accrued under that permit were subsequently quit-claimed by Rabido and Burnett to respondent Mary Rabido. In 1909, respondent Mary Rabido filed on the desert claim described in the amended complaint. On September 30, 1911, she applied for and received a permit to use 4/5 second-feet of the waters of Jagles Springs on her desert claim, giving the source of the water supply as Jagles Springs, and the location of the point of diversion as about one mile from the mouth of Jagles Creek. On April 21, 1916, the state engineer certified that the proof of completion of works under that permit had not been made as required by the laws of the state of Idaho, and that the permit was therefore voidable. In June, 1908, respondents continued their ditch to the desert claim of respondent Joseph Rabido, and irrigated seven acres of his land with it, and in 1909 irrigated forty acres of the desert claim of Mary Rabido with it.

C. S., sec. 5556, provides as follows: "Water being essential to the industrial prosperity of the state, and all agricultural development throughout the greater portion of the state depending upon its just apportionment to, and economical use by, those making a beneficial application of the same, its control shall be in the state, which, in providing for its use, shall equally guard all the various interests involved. All waters of the state, when flowing in their natural channels, including the waters of all natural springs and lakes within the boundaries of the state are declared to be the property of the state, whose duty it shall be to supervise their appropriation and allotment to those diverting the same therefrom for any beneficial purpose, and the right to the use of the waters of the state for useful or beneficial purposes is recognized and confirmed; . . . . "

C. S., sec. 5558, reads as follows: "The right to the use of the waters of rivers, streams, lakes, springs, and of sub-terranean waters, may be acquired by appropriation."

C. S., sec. 5561, reads as follows: "As between appropriators, the first in time is first in right."

C. S., sec. 5562, reads as follows: "All ditches now constructed or which may hereafter be constructed for the purpose of utilizing seepage, waste or spring water of the state, shall be governed by the same laws relating to priority of right as those ditches, canals and conduits constructed for the purpose of utilizing the waters of running streams."

C. S., sec. 5560, provides as follows: "The water appropriated may be turned into the channel of another stream and mingled with its water, and then reclaimed; . . . . "

C. S., sec. 5569, which deals with applications to appropriate water, provides that the application shall give the source of the water supply, and a permit issued upon an application also mentions the source of the water supply as given in the application.

Appellant's application for a permit designates the source of supply as Goggles Creek, and the location of the...