Schodde v. Twin Falls Land & Water Co.

• Decision Date: 03 February 1908
• Docket Number: 1,380.
• Citation: 161 F. 43
• Parties: SCHODDE v. TWIN FALLS LAND & WATER CO.
• Court: U.S. Court of Appeals — Ninth Circuit

161 F. 43

SCHODDE v. TWIN FALLS LAND & WATER CO.

No. 1,380.

United States Court of Appeals, Ninth Circuit.

February 3, 1908

Hawley Puckett & Hawley and W. E. Borah, for plaintiff in error.

E. B Critchlow (Henderson, Pierce, Critchlow & Barrette and Parley L. Williams, of counsel), for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge (after stating the facts as above).

The assignments of error present the single question whether the facts stated in the complaint constitute a cause of action against the defendant.

It is not denied that the plaintiff has the right by appropriation to divert 1,250 miner's inches of the waters of the Snake river, mainly for irrigation purposes, and it is not charged by plaintiff that this amount of water is not still in the river subject to his right of appropriation and diversion. His claim is that he cannot divert it by the means he first adopted for taking the waters from the river, and that the defendant by placing a dam across the river has deprived him of the right to the current of the river which prior to the erection of the dam rendered his means of diversion available. Is this current and the means adopted for the diversion of the appropriated water part of or attached to plaintiff's right of appropriation? It is contended on the part of the plaintiff that the current of the river is necessarily appurtenant to the water location and that the means of utilizing that current is attached as an appurtenance to the appropriation. We have not been referred to any case-- and we know of none-- where either of these propositions has been upheld.

The claim that the right to the current of the river is appurtenant to the water location is contrary to well-established principles of the common law governing such a relation. The water location was an appropriation and diversion of a certain quantity of the flowing water of the stream. The current of the river is part of the stream. There can be no right to the current of a stream as appurtenant to a diversion of the flowing waters of the stream. The two rights in such case would be equal and of the same character and quality, and one such right cannot be appurtenant to the other. Lord Coke says (Co. Litt. 121b): 'A thing corporeal cannot properly be appurtenant to a thing corporeal nor a thing incorporeal to a thing incorporeal. According to this rule land cannot be appurtenant to land. ' Harris v. Elliott, 10 Pet. 25, 53, 9 L.Ed. 333; Leonard v. White, 7 Mass. 8, 5 Am.Dec. 19; Jackson v. Hathaway, 15 Johns. (N.Y.) 447, 8 Am.Dec 263; Jones v. Johnston, 18 How. 150, 155, 15 L.Ed. 320. 'It follows that things in their nature equal and of like character and grade can never be appurtenant to each other, for the common as well as the legal meaning of the word implies inferiority and dependence, so that a water ditch could never become appurtenant to another water ditch of like character and pass as an incident thereto, for the same reason that one farm will not pass as an appurtenance to another. ' Donnell v. Humphreys, 1 Mont. 518, 528. The reason for such a rule in the the present case is as forcible as in any of the cases cited. If the plaintiff were permitted to own the current of the stream as appurtenant to his right of appropriation and diversion, he would be able to add indefinitely to the water right he would control and own. There might be a great surplus of water in the stream at and above plaintiff's premises and an urgent demand for a portion of this surplus for beneficial uses, but if an appropriator above should divert a sufficient quantity to lower the current under plaintiff's water wheels so that they would not revolve, the plaintiff would have a cause of action to prevent such an appropriation. It is clear that in such a case the policy of the state to reserve the waters of the flowing streams for the benefit of the public would be defeated.

But aside from this rule of common law, which we think denies the right of the appropriator to claim the current of the stream as appurtenant to his water location, the law of appropriation is itself opposed to such a claim. It is provided in the Constitution of the state of Idaho, art. 3, Sec. 15, that:

'The right to divert and appropriate the unappropriated waters of any natural stream to beneficial uses shall never be denied.'

In the Revised Statutes of Idaho of 1887, under the title 'Water Rights and Irrigation,' a method of procedure is provided for the appropriation and diversion of running water flowing in a river or stream for a useful or beneficial purpose. This procedure involves three distinct acts on the part of the appropriator: First, the person desiring to appropriate water must post a notice in writing in a conspicuous place at the point of intended diversion, stating therein (1) that he claims the water there flowing to the extent of (giving the number) inches measured under a 4-inch pressure, and accurately describing the point of diversion; (2) the purpose for which he claims it and the place of intended use; (3) the means by which he intends to divert it and the size of the flume, ditch, pipe, or aqueduct in which he intends to divert it-- a copy of the notice must, within 10 days after it is posted, be recorded in the office of the recorder of the county in which it is posted (section 3160). Second, a diversion of the water within a...