Sand Point Water & Light Co. v. Panhandle Development Co.

• Citation: 11 Idaho 405,83 P. 347
• Parties: SAND POINT WATER AND LIGHT COMPANY v. PANHANDLE DEVELOPMENT COMPANY
• Decision Date: 10 November 1905
• Court: Idaho Supreme Court

83 P. 347

11 Idaho 405

SAND POINT WATER AND LIGHT COMPANY v. PANHANDLE DEVELOPMENT COMPANY

Supreme Court of Idaho

November 10, 1905

WATER LOCATION-POSTING NOTICE OF CLAIM-DILIGENCE IN PROSECUTION OF WORK-COMPLETION OF APPROPRIATION-PRIORITIES AS BETWEEN DIFFERENT CLAIMANTS.

1. One who posted and recorded notice of intention to appropriate waters under act of February 25, 1899 (Sess. Laws 1899, p 380), and within sixty days thereafter commenced work on his proposed diverting works and continued the prosecution of such work with reasonable diligence, is entitled to have his appropriation date from the posting of his notice and the right thus acquired is prior and superior to the rights of any subsequent appropriator claiming either by posting of notice and compliance with the statute or an actual diversion and application of the water.

2. One who posts and records notice, and in all respects pursues the successive steps prescribed by act of February 25, 1899, is entitled to have his right relate back to the date of posting notice.

3. In such case the appropriation is initiated by posting the notice, and an inchoate right thereby arises which may ripen into a complete appropriation upon the final delivery of the waters to the place of intended use.

4. A person desiring to appropriate the waters of a stream may do so either by actually diverting the water and applying it to a beneficial use, or he may pursue the statutory method by posting and recording his notice and commencing and prosecuting his work within the time and in the manner prescribed by the statute, and in the latter case his right will relate back to the date of posting his notice.

5. Where an appropriator posted his notice on December 16, 1902 claiming a certain amount of the waters of a stream, and thereafter and on the fourteenth day of January, 1903 commenced work on roads, surveys, etc., preparatory to constructing the diverting works and kept at least one man at the work continuously from that date until date of trial and expended over $1,700 on the work from the commencement thereof until February 8, 1904, and had built one mile of wagon road along the course of the stream, and had built three thousand four hundred feet of flume, and such work was prosecuted in a mountainous country where the winters are long and rough and the snowfall is heavy, held, that the work has been prosecuted with reasonable diligence as required by section 6 of act of February 25, 1899 (Sess. Laws 1899, p 381).

(Syllabus by the court.)

APPEAL from District Court in and for Kootenai County. Honorable Ralph T. Morgan, Judge.

Plaintiff, the Sand Point Water and Light Company, commenced an action against the defendant, Panhandle Development Company, praying an injunction against the defendant to restrain and enjoin defendant from diverting the waters of Switzer and West Sand creek, or in any manner interfering with them or depriving plaintiff of the use thereof. Judgment for plaintiff, from which judgment and an order denying defendant's motion for a new trial, defendant appealed. Reversed.

Reversed and remanded, with instructions. Costs awarded to appellant.

William H. Batting, E. M. Heyburn and M. A. Folsom, for Appellant.

The term "appropriate," as applied to the public waters of the state of Idaho does not have the meaning applied to it by the district court in the trial of this cause, but includes a series of acts commencing with the posting of a notice at a given point on a stream of water, and ends with the application of the waters to some beneficial use or uses, and to that end the legislature has provided that the appropriators shall have a reasonable time within which to apply the water to such uses. Under the new law of 1903, under which respondent secured his water permits, the legislature has been most generous in allowing the appropriator nine (9) years within which to apply the water to the use for which it was intended. The laying of respondent's water pipes and connecting the town of Sand Point with the creek in question required about two (2) months. If there had been any question of acquiescence on the part of the appellant sufficient to create an estoppel, appellant had a right to assume that respondent intended only to use the waters of West Sand or Mill creek, not used by appellant, and rely on Switzer creek for its main supply, but we only make this suggestion in view of the fact that the court said some things in connection with its findings of fact which led us to believe that the trial court thought it necessary for us to assert our rights, either by force or arms or by some other appropriate method, notwithstanding the fact that this suit was commenced shortly after respondent commenced its work, and the records of the district court show that respondent applied for a restraining order, and after reading the affidavits of both parties, the judge of the district court went on the ground upon the canyon about the last of July, 1904, and after viewing the ground, for some reason respondent never renewed or pressed its application for an injunction, and nothing further was ever heard of it. During the summer of 1903, plaintiff, in order to cover any question of headgates and other regulations under the new law, took out a water permit supplemental to its rights under the three (3) water locations, and counsel for respondent undertook to suggest at the trial that such action on the part of the appellant was a waiver or abandonment of its original rights. We do not think that a suggestion of this kind should be presented in argument to this court, since under the law of possessory rights, whether it be applied to water rights or to mining claims, abandonment is a question of intention, and we think that the intention of the appellant is sufficiently shown from the fact that within two years of the date of the first location it had built a mile of road, graded and built one-half mile of expensive flume and put in its dam, built its smelting plant, and was just ready to put the water to beneficial uses when this unfortunate decision of the district court was given in favor of the respondent. Due respect to the trial court compels us to believe that all the errors committed at the trial and afterward arose from a misunderstanding of the term "appropriate" as applied under the "law of water rights." Appellant's rights were, and are by authority of section 2825 of the Revised Statutes of Idaho vested rights, and could not be disturbed or lessened by subsequent legislation, or by permits granted by the state engineer. (Ada Co. Farmers' Irr. Co. v. Farmers' Canal Co., 5 Idaho 793, 51 P. 990, 40 L. R. A. 485; Hall v. Blackman, 8 Idaho 272, 68 P. 19.) Respondent acquired no rights as against appellant by turning the water out of the creek while appellant was engaged in its development work. (Salt Lake City v. Salt Lake City Water etc. Power Co., 24 Utah 249, 67 P. 673, 61 L. R. A. 648.) On the question of reasonable time, we refer to Taughenbaugh v. Clark, 6 Colo. App. 235, 40 P. 153. In the case of Last Chance Min. Co. v. Bunker Hill & Sullivan Min. Co., reported in 131 F. 586, it was held that where a party is in possession of a mining claim, the failure to record the notice does not invalidate the location.

Charles L. Heitman, for Respondent.

The amended answer is set forth in full in the transcript. Appellant refers the court to the wording of this answer, and respectfully urges that no issue was raised thereby whereby appellant should have been permitted to introduce evidence in the court below. (Idaho Rev. Stats., sec. 4183; Hensley v. Tartar, 14 Cal. 508; Richardson v. Smith, 29 Cal. 529; Doll v. Good, 38 Cal. 287; Norris v Glenn, 1 Idaho 590; Swanholm v. Reeser, 3 Idaho 476, 31 P. 804.) Respondent on the trial repeatedly objected to the introduction of any evidence on behalf of appellant. The main question is as to who appropriated the waters in controversy, and who is entitled to the ownership thereof. The respondent's complaint is full and complete, showing the various steps taken by respondent, required to initiate, actually appropriate, and perfect its title to said waters. The third, fourth, fifth and sixth paragraphs of the complaint are full and complete, covering six and a half pages of the transcript. These paragraphs of the complaint, among other things, set forth the application made to the state engineer for permission to appropriate the waters in controversy; the actual appropriation thereof; the expenditure of $ 20,000 in the construction of a water system intended to supply water for public purposes, and for public use, and the actual appropriation and use of said waters for that purpose. In order to acquire a water right, it is not sufficient to post and file, or even record, location notices. There must be an intent to take the water and apply it to a beneficial use; but the mere intent is not sufficient. It must be followed by actual prosecution of efforts to make the water available at the point where it is needed. (Moyer v. Preston, 6 Wyo. 308, 71 Am. St. Rep. 914, 44 P. 845; Murray v. Tingley, 20 Mont. 260, 50 P. 723; 3 Farnham on Waters and Water Rights, 2058; Cardoza v. Calkins, 117 Cal. 106, 48 P. 1010; Mitchell v. Amador Canal etc. Min. Co., 75 Cal. 464, 17 P. 246.) Lack of means, even, is not a sufficient excuse for delay. (Cole v. Logan, 24 Or. 304, 33 P. 568.) Mere diversion of the water is not sufficient to perfect the right. There are still other steps to be taken in the application of the water to a beneficial use. (3 Farnham on Waters and Water Rights, 2060, 2061; Combs v. Agricultural Ditch Co., 17 Colo. 146, 31 Am. St. Rep. 275, 28 P. 966; Farmers' etc. Canal Co. v. Southworth, 13 Colo. 111, 21 P. 1028, 4 L. R. A....