Sarret v. Hunter

• Decision Date: 06 December 1919
• Parties: URANIE SARRET, JULES SARRET, and CAMILLE VIAL, Respondents, v. J. B. HUNTER and W. C. HUNTER, Appellants
• Court: Idaho Supreme Court

185 P. 1072

32 Idaho 536

URANIE SARRET, JULES SARRET, and CAMILLE VIAL, Respondents, v. J. B. HUNTER and W. C. HUNTER, Appellants

Supreme Court of Idaho

December 6, 1919

WATER AND WATER RIGHTS-APPROPRIATION-FINDINGS-ADJUDICATION OF PRIORITIES-TRANSFER OF WATER RIGHT-APPLICATION OF STATUTE-CONTEST BEFORE STATE ENGINEER-EFFECT ON RIGHTS OF LITIGANTS-PERMIT FOR USE ON VACANT PUBLIC LANDS-EFFECT OF COMPLETED APPROPRIATION AS REGARDS TITLE.

1. In an action in the nature of a suit to quiet title to water rights, where the issue joined is one of priority, the court should find specifically the actual appropriation made by each appropriator, the date such appropriation was made, the quantity of water appropriated, and the date of its application to a beneficial use.

2. C S., sec. 3061, regulating the sale of water rights under certain circumstances, has no application to the transfer of a water right such as the record discloses was made between appellants in this case.

3. In a contest before the state engineer against the issuance of a certificate of completion of irrigation works, the state engineer is authorized by law to pass upon and decide in the first instance whether the permit-holder has complied with the law and the terms of the permit, but his decision thereupon does not deprive any party aggrieved of his right of action in a proper court, and does not conclude the rights of litigants nor control the courts in determining the rights of the parties.

4. A right to the use of water upon vacant lands upon the public domain may be initiated by securing from the state engineer a permit therefor, and when the application for such permit is bona fide, coupled with a present intention to apply to a beneficial use the water thus sought to be appropriated, and if the water is so applied during the period limited by the permit, the appropriation is then complete and valid and relates back to the date of the permit, without regard to whether the permit-holder was at the date of said application in any way connected with the legal title to the land upon which he proposed to apply the water.

APPEAL from the District Court of the Sixth Judicial District, for Custer County. Hon. Carl A. Davis, Presiding Judge.

Action in the nature of a suit to quiet title to water rights and adjudicate priorities. Judgment for respondents. Reversed.

Reversed and remanded. Costs awarded to appellants.

Clark &amp Brodhead, Holden & Holden and Hawley & Hawley, for Appellants.

A water right can be acquired by use for a beneficial purpose of the waters of a stream upon lands owned by the United States and with the title to which the user has not connected himself. (Kinney on Irrigation, 2d ed., sec. 725, and authorities cited; Hall v. Blackman, 8 Idaho 272, 68 P. 19; Brose v. Boise City R. etc. Co., 5 Idaho 694, 51 P 753; Branca v. Ferrin, 10 Idaho 239, 77 P. 636; Montpelier Mill Co. v. City of Montpelier, 19 Idaho 212, 113 P. 741; People v. Maxon, 1 Idaho 330; Basey v. Gallagher, 20 Wall. (U.S.) 670, 22 L.Ed. 452; Atchison v. Peterson, 20 Wall. (U.S. 507, 22 L.Ed. 414; Rev. Stats. U.S. sec. 2339; art. 15, Constitution of Idaho.)

Appellant J. B. Hunter was privileged to sell part of his interest in application for permit No. 4990 to his coappellant herein, W. C. Hunter. (Laws of 10th Session, p. 335, an act entitled, "An act providing for the regulation and control of the sale of water rights, etc.")

"The only effect given by the statute to the acts and decision of the engineer is that any party aggrieved by said decision may, within ninety days from the date of the decision, either appeal to the district court or commence his original action." (Speer v. Stephenson, 16 Idaho 707, 102 P. 365.)

A permit issued by the state engineer is the initiation of the appropriation but of itself is not an appropriation. ( Marshall v. Niagara Springs Orchard Co., 22 Idaho 144, 125 P. 208; Tobey v. Bridgewood, 22 Idaho 566, 127 P. 178.)

Wm. A. Lee, J. M. Stevens and Geo. L. Ambrose, for Respondents.

A right to appropriate the public water of this state cannot be initiated, or perfected, unless it be in connection with or made appurtenant to other property, to which the appropriator has an absolute or qualified right and upon which, or in connection with which, it is to be used in such manner as will constitute a beneficial use. (Kinney on Irrigation, secs. 707-710, and cases cited; Black's Pomeroy on Water Rights, sec. 48, and authorities cited; Wiel on Water Rights, sec. 166, and cases cited under notes 72 and 73; Weaver v. Eureka Lake Co., 15 Cal. 271; Nevada County & Sac. Canal Co. v. Kidd, 37 Cal. 282; Miles v. Butte Electric etc. Co., 32 Mont. 56, 79 P. 549; Mills' Irrigation Manual, p. 59; Drake v. Earhart, 2 Idaho 750, 23 P. 541; Taylor v. Hulett, 15 Idaho 265, 269, 97 P. 37, 19 L. R. A., N. S., 535; Low v. Rizor, 25 Ore. 551, 37 P. 82; Toohey v. Campbell, 24 Mont. 13, 60 P. 396, 397; Nevada Ditch Co. v. Bennett, 30 Ore. 59, 60 Am. St. 777, 45 P. 472, 481; Bailey v. Tintinger, 45 Mont. 154, 122 P. 575, 583; Sander v. Bull, 76 Wash. 1, 135 P. 489; Colburn v. Winchell, 93 Wash. 388, 160 P. 1052.)

BUDGE, J. Morgan, C. J., and Rice, J., concur.

OPINION

BUDGE, J.

This is an action in the nature of a suit to quiet title to certain water rights on Upper Cedar Creek in Custer county and to adjudicate the priorities between the parties hereto.

Appellant J. B. Hunter made application for a permit to appropriate 26 second-feet of the waters of said creek on May 1, 1909. This application was later corrected in accordance with directions of the state engineer, and on July 27, 1909, permit No. 4990 was issued to J. B. Hunter in accordance with the application, one-fifth of the work to be completed July 27, 1911, the whole to be completed July 27, 1913, and final proof of use of water to be made July 27, 1916.

After application was made to submit proof of completion of works under this permit, respondents, Uranie Sarret and Jules Sarret filed a contest with the state engineer against the issuance of a certificate of completion of works. This contest was finally abandoned and a certificate of completion of works issued on June 20, 1914. No appeal was taken by the Sarrets from the decision of the state engineer, nor was any action commenced in the district court under the provisions of C. S., sec. 5589, within the 90-day period therein limited.

Both appellants claim priority under this permit. There is evidence that the Hunters jointly purchased a certain ditch and diversion works from one Hill, prior to the application for permit No. 4990, and that their completed works were simply an enlargement and completion of the ditch and works so purchased. Much of the work of enlarging and completing the ditch and diversion works was done by appellant W. C. Hunter. Later a formal conveyance of 6.4 cubic feet of water per second was made by appellant J. B. to W. C. Hunter, in order to enable the latter to make final proof of reclamation on his desert entry, the land described in the pleadings as belonging to him. This transaction between the Hunters is attacked by respondents as in violation of the provisions of C. S., sec. 3061, regulating the sale of water rights under certain circumstances.

Respondent Uranie Sarret claims to have initiated her right under permit No. 8554, issued April 2, 1910, and water license No. 5897, issued by the state engineer on October 15, 1910.

Respondent Jules Sarret claims under permit No. 11312, issued September 16, 1911, and certificate of completion of works of November 8, 1913.

Respondent Camille Vial claims under permit No. 9581, issued September 12, 1910, and water license No. 6615 of August 31, 1914.

All of the lands involved herein were, at the date of the issuance of the various permits to the parties to this litigation, a part of the Lemhi Forest Reserve and unsurveyed public land. The respondents filed homestead entries and the appellants made desert entries.

This action was prosecuted by respondents jointly, the complaint containing three separate causes of action, setting forth the claims of the respondents respectively.

Appellants cross-complained and in addition plead that the first two causes of action, setting forth the claims of the Sarrets, were barred by the provisions of C. S., chap. 218, art. 2, particularly sec. 5589.

Answers were stipulated, putting the contentions of all the parties in issue, and upon the issues thus made the cause was tried by the court, which, after making certain findings of fact and conclusions of law, entered judgment for respondents, from which this appeal is prosecuted.

It will not be necessary for us to discuss specifically the various assignments of error.

The trial court omitted to find the facts with respect to any of the issues raised by the cross-complaint and the answer thereto. There is no finding as to how much, if any, water appellants were entitled to, or the date of their appropriation, or of the completion of the works, or of the application of water to a beneficial use. The failure of the trial court to find the facts upon these...