Rudge v. Simmons

Decision Date03 May 1924
Citation226 P. 170,39 Idaho 22
PartiesALICE H. RUDGE, Administratrix of the Estate of W. N. RUDGE, Deceased, Appellant, v. DAVID SIMMONS, NELLIE SIMMONS, NELLIE SIMMONS, Administratrix of the Estate of WARREN SIMMONS, Deceased; FLORA MAY SIMMONS, a Minor; ROBERT SIMMONS, a Minor; WALTER SIMMONS, a Minor; EDWARD WALLACE SIMMONS, a Minor, and NELLIE SIMMONS, as Guardian of the Persons and Estate of the Said Minors; CLARENCE W. JOY, THE UNION CENTRAL LIFE INSURANCE COMPANY, W. A. DRAKE, ZERELDA DRAKE, N. B. BARNES and MINERVA E. BARNES, Respondents. ELLIS M. KENT, Appellant, v. DAVID SIMMONS, NELLIE SIMMONS, NELLIE SIMMONS, Administratrix of the Estate of WARREN SIMMONS, Deceased; FLORA MAY SIMMONS, a Minor; ROBERT SIMMONS, a Minor; WALTER SIMMONS, a Minor; EDWARD WALLACE SIMMONS, a Minor; and NELLIE SIMMONS, as Guardian of the Persons and Estate of the Said Minors; CLARENCE W. JOY, THE UNION CENTRAL LIFE INSURANCE COMPANY, W. A. DRAKE, ZERELDA DRAKE, N. B. BARNES, and MINERVA BARNES, Respondents
CourtIdaho Supreme Court

WATER RIGHTS-APPROPRIATION-BENEFICIAL USE.

1. Where an appropriator initiates a right to appropriate water under the appropriation law as it existed in 1901 and completed his diversion works so as to enable him to convey the entire amount of water claimed to the point of intended use and no adverse rights have intervened, the appropriator has a reasonable time thereafter to apply the water so diverted to a beneficial use.

2. Where an appropriator of water has diverted and conveyed to his lands by means of a dam in the natural stream and a substantial ditch leading therefrom water in excess of the amount required to irrigate his cultivated land and used the excess for irrigating the remainder of his lands which consist of pasture and wild hay land, and thereby increased the productiveness of such uncultivated land, it constitutes a beneficial use of the excess water diverted.

3. Where one constructs an irrigating system and conducts water upon his land and thereafter continuously applies the same upon wild hay land for the purpose of making hay, or using such uncultivated land for pasture, where it substantially increases the productiveness thereof, he thereby secures a right to the use of sufficient water to irrigate such uncultivated land, this being a beneficial use.

APPEAL from the District Court of the Third Judicial District, for Elmore County. Hon. Henry F. Ensign, Judge.

Action to determine priority of water rights. Judgment for defendants. Affirmed.

Judgment affirmed, with costs to respondents.

Luther W. Tennyson, for Appellants.

Under the laws of this state a person may appropriate water, either by following the statutory method or by diverting the water and actually applying the same to a beneficial use, in which latter case the claimant's right dates only from the time he actually applies the water to a beneficial use. (2 Kinney on Irrigation, 2d ed., sec. 751, p. 1298; Long on Irrigation 2d ed., sec. 126, p. 220; Morris v. Bean, 146 F 423; Murray v. Tingley, 20 Mont. 260, 50 P. 723; Reno v. Richards, 32 Idaho 1, 178 P. 81; Crane Falls etc. Co. v. Snake River etc. Co., 24 Idaho 63, 133 P. 655; Rabido v. Furey, 33 Idaho 56, 190 P. 73; Haight v. Costanich, 184 Cal. 426, 194 P. 26; Washington State Sugar Co. v. Goodrich, 27 Idaho 26 147 P. 1073; Basinger v. Taylor, 30 Idaho 289, 164 P. 522.)

Since the adoption of our irrigation codes the appropriation of the waters of this state for future use can only be made by following the statutory method of appropriation. (Reno v. Richards, supra.)

K. I. Perky and Frank T. Wyman, for Respondents.

Under the act of 1899, the appropriation was complete with the completion of the diversion works and the conducting of the waters to the place of intended use. The right by relation dates back to the first steps taken and the appropriator had a reasonable time after the perfecting of his rights within which to apply the water to a beneficial use. (Basinger v. Taylor, 30 Idaho 289, 164 P. 522.)

As the law stood at the time Norton initiated his rights and while he was digging his ditch, he had a reasonable time after the completion of his irrigation works within which to apply the water to a beneficial use. (Conant v. Jones, 3 Idaho 606, 32 P. 250; Hall v. Blackman, 8 Idaho 272, 68 P. 19; Brown v. Newell, 12 Idaho 166, 85 P. 388.)

WILLIAM A. LEE, J. McCarthy, C. J., and Budge and Wm. E. Lee, JJ., concur.

OPINION

WILLIAM A. LEE, J.

--This is an action to determine the priority of the rights to the use of the waters of Rock Creek, in Elmore county. Two suits were commenced but were consolidated and but one decree was entered. A motion for a new trial was made and denied and the case is here upon appeal from the order. After the actions were commenced other parties were made defendants by order of the court, but this is not material to the determination of the conflicting claims of the original parties to this action with regard to their respective rights of priority.

Appellants base their claim to a right of priority to the use of the waters of Rock Creek upon a joint application for a permit filed with the state engineer by W. N. Rudge, since deceased, and Ellis M. Kent, April 12, 1909. Rudge was subsequently granted, by the state engineer, a license to a perpetual right to the use of 2.4 cubic feet of water with a priority dating from April 12, 1909, and Kent was granted a license to the perpetual use of 3.2 cubic feet with a like priority. There is no contest over the amount nor date of the appellants' appropriations of water, except in so far as such rights are claimed to be prior in time to the rights of respondents, who base their claim upon a right which they contend was acquired by one Norton, their predecessor in interest. Norton with his wife and son took up certain public lands on Smith's Prairie, in all about 640 acres, some time before Oct. 12, 1901, they being the first permanent settlers in this part of the country. He posted a notice claiming a right to the use of 500 inches of water from the natural flow of this stream and thereafter commenced the construction of a dam thereon and a ditch by which to convey this water to their lands, which diverting system was completed in 1906, and the water to the amount of 445 inches was actually conveyed to the place of intended use in that year, upon which lands respondent claims this water was used uninterruptedly until the controversy arose as to the right to the use of this water shortly before the commencement of this action in 1915. In 1906 the Nortons cleared and plowed portions of their land which they watered by surface irrigation. The remainder of the water was carried through their ditch to the higher lands and allowed to flow out in such a manner as to subirrigate a considerable area of their lands which had not been cleared and plowed but which was a natural meadow, that produced native grass sufficient to produce a partial crop of hay which they yearly harvested, and also upon the remainder of this land that was used for pasturing their stock.

The court found that the Nortons had posted a notice Oct. 12 1901, and filed copies of such notice as required by the then existing law relating to the...

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4 cases
  • Maher v. Gentry
    • United States
    • Idaho Supreme Court
    • 21 Noviembre 1947
    ... ... 1073; ... Keiler et al. v. McDonald et al., 37 Idaho 573, 218 ... P. 365; Neil v. Hyde, 32 Idaho 576, 186 P. 710; ... Rudge et al. v. Simmons et al., 39 Idaho 22, 226 P ... Where ... land is conveyed by deed of conveyance containing the clause ... "together ... ...
  • Jones v. McIntire
    • United States
    • Idaho Supreme Court
    • 29 Mayo 1939
    ... ... Taylor, 30 Idaho 289, 164 P. 522; ... Reno v. Richards, 32 Idaho 1, 178 P. 81; Sarret ... v. Hunter , 32 Idaho 536, 185 P. 1072; Rudge v ... Simmons, 39 Idaho 22, 226 P. 170.) ... It is ... conceded by the allegations of the complaint and was at the ... trial and in ... ...
  • McAtee v. Faulkner Land & Livestock, Inc.
    • United States
    • Idaho Court of Appeals
    • 28 Septiembre 1987
    ...the use to which the water has been put constitutes a "beneficial use"--is a question of law. See generally Rudge v. Simmons, 39 Idaho 22, 226 P. 170 (1924); Pyke v. Burnside, 8 Idaho 487, 69 P. 477 (1902). On that question we exercise free We first address the factual issue. The parties pr......
  • Uhrig v. Coffin
    • United States
    • Idaho Supreme Court
    • 30 Enero 1952
    ...by the Court to be necessary for the adequate irrigation of appellant's lands is vital, and therefore, must be protected. Rudge v. Simmons, 39 Idaho 22, 226 P. 170. Therefore, the decree should be modified to provide that the limit of 100 inches of augmented water prevails only until the 18......

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