Sebern v. Moore

• Decision Date: 27 June 1927
• Docket Number: 4543
• Parties: O. V. SEBERN, EMIL JULLION and THOMAS R. HARTLEY, Trustees, Appellants, v. CRAWFORD MOORE, Respondent
• Court: Idaho Supreme Court

258 P. 176

44 Idaho 410

O. V. SEBERN, EMIL JULLION and THOMAS R. HARTLEY, Trustees, Appellants, v. CRAWFORD MOORE, Respondent

No. 4543

Supreme Court of Idaho

June 27, 1927

WATERS AND WATER RIGHTS-DRAINAGE DISTRICT-WASTE AND SEEPAGE-APPROPRIATION FOR-RIGHT OF PRIOR APPROPRIATOR.

1. A drainage district, organized under C. S., secs. 4493-4555, by constructing its drain, thereby destroying the ditch of a prior appropriator of waste and seepage waters, does not destroy his right to such waters.

2. Any appropriation by commissioners of a drainage district under Act March 13, 1923 (Laws 1923, chap. 134), of surface and seepage waters collected in the district's drain, is subject to rights of one who appropriated them before construction of the ditch.

3. Surface waste and seepage waters may be appropriated under C S., sec. 5562, subject to rights of owner to cease wasting or to change place or manner of wasting, or to recapture it.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Raymond L. Givens, Judge.

Action to enjoin the use of waste and seepage waters. Judgment for defendant. Affirmed.

Judgment affirmed. Costs to respondent.

Reddoch & Hunter, for Appellants.

Respondent had no right as against Drainage District No. 2, or the property owners therein, whose waste and seepage water from irrigation produced the water-table, to insist that it be maintained so as to supply his waste water right. (Nampa & Meridian Irr. Dist. v. Petrie, 37 Idaho 45, 223 P 531.)

The statutes of this state relative to priority between users of waste water merely recognize priority rival claimants receiving such water from the same source. (C. S., secs. 5556, 5562; United States v. Ramshorn Ditch Co., 254 F. 842; Colo. Sess. Laws 1889, p. 215; United States v. Haga, 276 F. 41; Public Utilities Com. v. Natatorium Co., 36 Idaho 287, 211 P. 533.)

There being no vested right in waste water or the height of the water-table, the waters collected in the drains of Drainage District No. 2 were artificial or developed waters, subject to appropriation by the legislature for the benefit of those whose expenditures resulted in the collection of such waters in the drains. (Sess. Laws 1923, p. 196; Wattson v. United States, 260 F. 506; Brewster v. Salt River Valley Waters Users' Assn., 27 Ariz. 23, 229 P. 929; Hagerman Irr. Co. v. East Grand Plains Drainage Dist., 25 N.M. 649, 187 P. 555.)

Water collected in the drains is the property of the district, independent of any permit, and is not subject to individual appropriation or use. (Brewster v. Salt River Valley Water Users' Assn., supra; Hagerman Irr. Co. v. East Grand Plains Drainage Dist., supra; Reno v. Richards, 32 Idaho 1, 178 P. 81; Basinger v. Taylor, 36 Idaho 591, 211 P. 1085.)

Karl Paine and Edwin Snow, for Respondent.

"As between appropriators, the first in time is first in right." (C. S., sec. 5561.)

"All ditches now constructed, or which may hereafter be constructed for the purpose of utilizing seepage, waste or spring water of this state, shall be governed by the same laws relating to priority of rights as those ditches, canals and conduits constructed for the purpose of utilizing the waters of running streams." (C. S., sec. 5562.)

The drainage works were not constructed under or pursuant to the sovereign power of the state. (Twohy Bros. Co. v. Ochocho Irr. Dist., 108 Ore. 1, 210 P. 873, 216 P. 189.)

The waters appropriated were not equitably and ratably distributed in the manner provided by the law under which plaintiffs claim. We cite the following authorities on the law relating to the appropriation of waste and seepage waters: Gerber v. Nampa & Meridian Irr. Dist. (on rehearing), 16 Idaho 22, 100 P. 88; Breyer v. Baker, 31 Idaho 387, 171 P. 1135; Le Quime v. Chambers, 15 Idaho 405, 98 P. 415, 21 L. R. A., N. S., 76; Youngs v. Regan, 20 Idaho 275, 118 P. 499; Bower v. Moorman, 27 Idaho 162, 147 P. 496; Rabido v. Furey, 33 Idaho 56, 190 P. 73; Short v. Praisewater, 35 Idaho 691, 208 P. 844; United States v. Haga (Ida.), 276 F. 41; Twin Falls Canal Co. v. Dammon (Ida.), 277 F. 331; Brosnan v. Harris, 39 Ore. 148, 87 Am. St. 649, 65 P. 867, 54 L. R. A. 628; Hough v. Porter, 51 Ore. 318, 95 P. 732, 98 P. 1083, 102 P. 728; Wiel on Water Rights, 3d ed., secs. 55, 56, 64; Long on Irrigation, 2d ed., sec. 89.

VARIAN, District Judge. Wm. E. Lee, C. J., Taylor, T. Bailey Lee, JJ., and McNaughton, Commissioner, concur. Budge, J., did not sit at the hearing and took no part in the decision. Givens, J., disqualified.

OPINION

VARIAN, District Judge.

Appellants, members of the board of commissioners of Drainage District No. 2 of Ada county, brought this action as trustees to restrain respondent from diverting, or in anywise interfering with, the water in said drainage district's drain No. 14.

This district was organized under the provisions of C. S., title 34, and its works were completed prior to the irrigation season of 1922. On January 2, 1922, the state department of reclamation issued its certificate of completion of works, under permit No. 15374, to W. H. Thompson, O. V. Sebern and M. A. Coffin, trustees, then commissioners of said drainage district, to use all of the waters within the drainage canals of said district and to the extent of 150 second-feet thereof; priority to date as of September 10, 1921.

Respondent is the owner of 394.14 acres of land within said drainage district. His holdings formerly aggregated about 600 acres, but he has sold off about a third of his former holdings. About the year 1890, respondent, or his predecessor in interest, utilized a certain dry gulch or natural waterway to convey water turned into it from the Ada lateral and the Moore ditch to the said 600 acres of land. This was accomplished by means of a ditch from a point in the gulch about a quarter of a mile from his present ranch. When first used, the draw contained no water except the run-off from rains and melting snows, which endured but for a short period each spring. Later and gradually, as the irrigating canals in the vicinity were enlarged and more land was put under irrigation, surface waste and seepage waters appeared in the draw and materially augmented the flow therein. By 1900, about 1,400 acres were under irrigation in that vicinity that drained into the draw, and the waste and seepage waters appeared in considerable quantities. From about that date until 1922, respondent has utilized about 400 miner's inches of the waters in said gulch, including his waters from the Ada lateral, selling off his ditch water rights with the lands sold to other parties. He still owns one and thirteen-eighteenths shares in the Ada lateral.

When the drainage works were constructed, the draw, occupied by respondent as a waterway, and which collected the waste and seepage waters appropriated for the irrigation of his lands, was occupied by the drainage district's canal. The water-table was lowered about seven feet, and respondent's ditch, in the draw, destroyed. No water from this source was available to respondent during the years 1922 and 1923. In 1924, he caused a new ditch to be constructed through which he tapped appellants' drain No. 14, below his former point of diversion, and immediately east of his present lands, by means of a pipe under the highway and into said drain at its water-level. This connection with the drain was made without injury to it, or interference the operation of the drainage system, and was made while this suit was pending. For nearly thirty years prior to the year 1921, respondent has used and appropriated 300 inches of the seepage, and waste waters collecting in said dry gulch, applying said water to the irrigation of his said lands.

The first assignment of error attacks the finding to the effect that "the said appropriators (Sebern, Thompson and Coffin), or any of them, of said water were not trustees of all of the property owners within said district," or of respondent, "and did not file upon all or any of the water within said drainage canals as trustees for the benefit of all of the property owners within said district, or for the benefit" of respondent, as being contrary to law and the evidence.

There is no authority under the drainage laws of this state (C. S., title 34, secs. 4493 to 4555, both inclusive) authorizing drainage commissioners, or drainage districts, to appropriate waters, waste or from flowing streams. The acquiring of water rights, or the application of water to a beneficial use, is no part of the purposes for which drainage districts are formed; and under this title the commissioners were without authority to make filings upon waste water in the drainage canals. By an act approved March 13, 1923, the legislature sought to authorize the appropriation of waters created or made available for irrigation purposes by the construction of drainage works, and enacted the following:

"The boards of commissioners of drainage districts are hereby authorized and empowered to file upon and appropriate in the manner provided by law, waters created or made available for irrigation purposes, by the construction of drainage works within such district, whenever the same can be applied to a beneficial use upon lands within the district, without impairing prior existing rights, which waters shall be equitably and ratably distributed in the manner provided by law to lands within the district which may beneficially use the same in the proportion that the assessment for drainage of each tract of said land bears to the whole assessment within the district; Provided, That where lands within the district have an adequate water right and the water made available for irrigation by the construction of such works, may be...