Reno v. Richards

• Decision Date: 26 December 1918
• Citation: 178 P. 81,32 Idaho 1
• Parties: AGNES B. RENO et al., Respondents, v. J. R. RICHARDS et al., Respondents, and SAMUEL GODDARD, ALFRED L. GODDARD, GEORGE GODDARD, JOHN GODDARD, FRANK G. WORTHING and JESSIE WORTHING, Appellants
• Court: Idaho Supreme Court

178 P. 81

32 Idaho 1

AGNES B. RENO et al., Respondents, v. J. R. RICHARDS et al., Respondents, and SAMUEL GODDARD, ALFRED L. GODDARD, GEORGE GODDARD, JOHN GODDARD, FRANK G. WORTHING and JESSIE WORTHING, Appellants

Supreme Court of Idaho

December 26, 1918

WATER AND WATER RIGHTS-RIGHTS TO THE USE OF WATER CONSERVED BY ARTIFICIAL MEANS-DOCTRINE OF RELATION-EVIDENCE.

1. A person who, by removing obstructions from a stream and constructing artificial works, prevents the loss of water flowing therein through seepage and evaporation, and materially augments the amount of water available from the stream for a beneficial use, has the right to make use of the amount of water so conserved by his efforts in excess of the natural flow of the stream.

2. It is the duty of the trial court to make findings of fact upon all the material issues presented by the pleadings and necessary for a proper disposition of the case.

3. Water may be appropriated from a stream by diversion therefrom and application to a beneficial use, without compliance with the steps provided by the statute, but in such case it requires actual application to a beneficial use to complete the appropriation, and the right is limited to the amount so applied to a beneficial use and with date of priority determined by such application.

4. Where two claimants make use of the water diverted from a stream through a common ditch, or canal, by a system of rotation, it is error to award to both claimants an amount of water in excess of that actually diverted by the canal and used by them.

5. In a suit brought for the purpose of adjudicating rights to the use of the waters of a stream, it is incumbent upon those basing their claims upon actual diversion of water and application to a beneficial use, without compliance with the steps required by the statute, to produce evidence sufficiently definite to enable the court to find the quantity of water so appropriated and necessarily used by the appropriator. It is also incumbent upon such claimant to produce evidence showing the beneficial use to which the water has been applied.

6. In a suit brought to obtain an adjudication of the rights to the use of water from a stream, Rev. Codes, sec. 4621, prohibits the court from allotting to any claimant by its decree an amount of water in excess of the amount actually used for the beneficial purposes for which the right is claimed. The proviso in that section, directing the court to set a time within which the amount of water which can be diverted through works already constructed, in excess of the quantity already beneficially applied, shall be applied to a beneficial use, has reference only to claimants who have initiated their rights by a compliance with the statute. Such claimants only are in a position to profit by the doctrine of relation. This proviso has no application to and is not available for the benefit of one who claims an appropriation of water by virtue of actual diversion and application to a beneficial use, without reference to the method of initiating water rights prescribed by the statute.

[As to diligence in applying to useful purpose, see note in 60 Am.St. 811]

APPEAL from the District Court of the Ninth Judicial District, for Fremont County. Hon. J. G. Gwinn, Judge.

Suit for adjudication of water rights. Remanded with instructions to modify.

Case remanded, with instructions. Costs awarded to appellants.

W. P Guthrie, for Appellants Frank G. Worthing and Jessie Worthing.

A prior appropriator of the waters of a stream has no right to salvage or to new waters saved or added to a stream by the artificial works of another. (Wiel on Water Rights in Western States, 3d ed., secs. 38a, 61, 279; Beaverhead etc. Co v. Dillon etc. Co., 34 Mont. 135, 85 P. 880, 882; Churchill v. Rose, 136 Cal. 576, 69 P. 416; Vineland Irr. Co. v. Azusa Irr. Co., 126 Cal. 486 58 P. 1057, 46 L. R. A. 820; Ironstone Ditch Co. v Ashenfelter, 57 Colo. 31, 140 P. 177; Fuller v. Sharp, 33 Utah 431, 94 P. 813; Roberts v. Crafts, 141 Cal. 20, 74 P. 281, 23 L. R. A., N. S., 1065 note.)

In an action to quiet title to water appropriated from a public stream in this state, where the issue joined is one of priority, the court should find the actual appropriation made by each appropriator, giving the time the appropriation was made and the quantity of water appropriated to a beneficial use by each appropriator. (Lee v. Hanford, 21 Idaho 327, 121 P. 558; Berlin Machine Works v. Dehlbom Lumber Co., 29 Idaho 494, 160 P. 746; Miller v. Wheeler, 54 Wash. 429, 103 P. 641, 23 L. R. A., N. S., 1065.)

Briggs & McConnell, for Appellants Samuel Goddard, Alfred L. Goddard, George Goddard and John Goddard.

The person who, by his own efforts, has saved and conserved the waters of a natural stream is entitled to the use thereof. (Creighton v. Kaweah Canal & Irr. Co., 67 Cal. 221, 7 P. 658; Butte Canal & Ditch Co. v. Vaughn, 11 Cal. 143, 70 Am. Dec. 769.)

The principle of law is identically the same whether the junior appropriator conveys water into a natural stream and afterward diverts the same, or whether he improves a natural channel of a stream and thereby conserves and saves the water and afterward appropriates and applies the same to a beneficial use. (Platte Valley Irr. Co. v. Buckers Irr. etc. Co., 25 Colo. 77, 53 P. 334, 335; Herriman Irr. Co. v. Butterfield Mining etc. Co., 19 Utah 453, 57 P. 537, 51 L. R. A. 930; Farnham on Waters and Water Rights, sec. 672; Wiel on Water Rights, sec. 38a; Wiggins v. Muscupiabe Land & Water Co., 113 Cal. 182, 54 Am. St. 337, 45 P. 160, 32 L. R. A. 667; Pomona Land & Water Co. v. San Antonio Water Co., 152 Cal. 618, 93 P. 881.)

Standrod, Coffin & Standrod and Soule & Soule, for Respondents.

Water "saved or conserved" by the construction of an improved channel, or water brought into a stream from an independent source, can be appropriated exclusively by the parties effecting the saving or bringing in the new water when: 1. The fact of actual saving or conservation is established by clear and convincing proof and with "the nicest exactness possible"; 2. When the amount of the saving can be determined definitely, certainly and exactly; 3. When the saving or conservation is permanent and not susceptible to constant and gradual depreciation. (Wiel on Water Rights, 3d ed., secs. 38a, 40.)

The burden is upon the party asserting a right founded upon conservation to establish the fact by "clear and convincing evidence." (Moe v. Harger, 10 Idaho 302, 305, 77 P. 645; Josslyn v. Daly, 15 Idaho 137, 149, 96 P. 568.)

The evidence in this case does not show a saving or conservation of the waters of Birch Creek by any individual or coterie of individuals, nor is it sufficiently definite and certain to allow any exclusive rights to be founded thereon.

RICE, J. Morgan, J., concurs. Budge, C. J., sat at the hearing but took no part in the opinion.

OPINION

RICE, J.

This action was brought to obtain an adjudication of the rights to the use of the waters of Birch Creek. Birch Creek is a stream which has its source in Lemhi county, near the southern boundary thereof, in what is known as Birch Creek Springs. It flows in a southeasterly direction for a distance of about thirty miles, its waters gradually sinking into the ground along the lower part of its course until they are all absorbed at a point commonly known as Birch Creek Sink, and they do not appear again at any known place.

There were forty-four parties plaintiffs and defendants named in the suit. There was a prior adjudication of the rights to the use of the waters of this stream in the year 1894. That decree was confirmed by the lower court in this suit. The cause was tried by the court, findings of fact and conclusions of law were made and judgment entered conforming thereto.

Two appeals from the judgment are before this court for consideration. The appellants claim error was committed in certain findings and conclusions of the court, and portions of the judgment based thereon.

Appellants Frank G. Worthing and Jessie Worthing, defendants and cross-complainants in the court below, specify as error the finding of the court that on July 29, 1907, appellants went upon Pass Creek, a tributary of Birch Creek, and by means of cleaning out the channel thereof, and performing other work thereon, caused a substantial but indefinite increase in the flow of the waters of said Pass Creek, for the reason that the evidence shows a considerable and definite increase in the flow of the waters of said stream, amounting to at least two second-feet, was caused by the labors of these appellants. It is contended that the court should have found definitely the amount of the increased flow caused by them, and awarded to them a right to the use of such increase superior to that of all other claimants from the stream.

These appellants claim under a permit issued by the state engineer on July 29, 1907, and submitted in evidence a license issued by the state engineer granting them the right to the use of 2.03 second-feet of the waters of Birch Creek, with date of priority July 29, 1907, the date of the original permit. The lands of appellants are situated on Birch Creek above the point where the waters of Pass Creek flow into Birch Creek and they claim a right to take out of Birch Creek the amount of water which they have caused to flow therein below the point where they diverted the water. It is not shown that there were any rights intervening between their point of diversion from Birch Creek and the point where they caused the waters of Pass Creek to empty into Birch Creek. In the absence of detriment to other users of water from Birch Creek, there is no doubt of their right to make a diversion from Birch Creek, at their...