Silkey v. Tiegs

• Decision Date: 07 December 1931
• Docket Number: 5651
• Citation: 5 P.2d 1049,51 Idaho 344
• Parties: FRANCES SILKEY, Respondent, v. H. W. TIEGS, THOMAS F. EDWARDS and J. RYAN, Appellants
• Court: Idaho Supreme Court

5 P.2d 1049

51 Idaho 344

FRANCES SILKEY, Respondent, v. H. W. TIEGS, THOMAS F. EDWARDS and J. RYAN, Appellants

No. 5651

Supreme Court of Idaho

December 7, 1931

WATER AND WATERCOURSES-SUBTERRANEAN WATER-APPROPRIATION-PRIORITIES-TRIAL-REOPENING OF CASE.

1. Granting or refusing motion to reopen case after it has been submitted for decision, but before judgment, is discretionary.

2. In suit determining priority to subterranean hot water, denying new trial and refusing to reopen case for introduction of evidence showing leak in plaintiff's well held not abuse of discretion.

3. Percolating subterranean waters may be appropriated either by statutory permit method, or by actual diversion for beneficial use (C. S., secs. 5558, 5568, 5570, 5571, and sec 5569, as amended by Laws 1929, chap. 281; Const., art. 15 sec. 3).

4. Valid appropriation of percolating subterranean waters either by statutory permit method or by actual diversion for beneficial use, has priority over subsequent appropriation however made (C. S., secs. 5558, 5568, 5570, 5571, and sec. 5569, as amended by Laws 1929, chap. 281; Const., art. 15, sec. 3).

5. Where court's findings are supported, judgment will not be reversed because different conclusion might be inferred.

6. As respects decree, inferior claimants of percolating subterranean waters could close and seal wells in lieu of equipping wells with valves, controlling works and measuring devices.

7. Decree adjudicating water priorities held not objectionable as awarding claimant forty miner's inches during nonirrigating season, without finding amount put to beneficial use during that season.

8. Court held authorized to retain jurisdiction of case involving water rights for two years and to incorporate in decree administrative provisions (C. S., sec. 5605 et seq., and sec. 5606).

9. Decree awarding subsequent appropriators water with priorities of certain date, but prohibiting subsequent appropriators from using water, held not inconsistent.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Dana E. Brinck, Judge.

Suit to quiet title in and to determine priorities of the use of subterranean hot water, and for injunction restraining defendants from operating their artesian wells in such manner as to deplete flow in plaintiff's wells. Judgment for plaintiff. Defendants appeal. Affirmed.

Decree affirmed. Cost to respondent. Petition for rehearing denied.

T. L. Martin and Wm. M. Morgan, for Appellants.

It is a fundamental principle of constitutional law, which requires the citation of no authority to support it, that a state constitution is not a grant, but is a limitation upon the powers of the legislature, and the legislative branch of a state government may do whatever it is not prohibited from doing by the constitution. Exercising its powers, the legislature of Idaho has granted and regulated the right to use subterranean waters and has prescribed the means for establishing priorities in the rights to the use thereof. (C. S., secs. 5558, 5568 and 5569; Speer v. Stephenson, 16 Idaho 707, 102 P. 365; Nielson v. Parker, 19 Idaho 727, 115 P. 488; Morris v. Bean, 146 F. 423.)

Edwin Snow, for Respondent.

"Prior in time prior in right" applies to underground artesian waters. (Hinton v. Little, 50 Idaho 371, 296 P. 582.)

It was not the intention of the legislature to make the permit method the exclusive method of acquiring a water right. (Nielson v. Parker, 19 Idaho 727, 115 P. 488; Morris v. Bean, 146 F. 423; Youngs v. Regan, 20 Idaho 279, 118 P. 499.)

A court of equity has inherent power to insert in its decrees administrative provisions for their enforcement and to retain jurisdiction to see they are enforced. (Century Digest, "Equity," secs. 1053, 1054; Freeman on Judgments, 5th ed., secs. 33-37; People v. Lyons, 168 Ill.App. 396.)

VARIAN, J. Lee, C. J., and Budge, Givens and McNaughton, JJ., concur.

OPINION

VARIAN, J.

This case involves the right to the use of artesian hot water developed from wells upon the lands owned by the parties situate in Sections 28 and 29, Twp. 4 N., R. 2 E. B. M., in Ada county, lying on high ground north of the Soldiers' Home near Boise. The location and soil render them chiefly valuable for truck gardening purposes although hay and other crops are also grown thereon. The hot water from the wells is utilized to heat their homes and hotbeds as well as for irrigating crops. Appellant Tiegs' well is about 155 feet east of respondent's smaller well, which is 16 feet east of her larger well. Appellant Edwards' well is 1644 feet westerly from respondent's larger well and appellant Ryan's well is 1315 feet northerly from appellant Edwards' well, or about 2,950 feet northwesterly from the larger well of Mrs. Silkey, respondent.

This suit was brought by respondent to quiet title to certain waters appropriated by means of two artesian wells bored on her farm, and to enjoin appellants from using their wells in such manner as to deplete the flow in respondent's said wells.

The court found for respondent and among other things:

"That underlying the lands of the parties hereto, all of which lands are in the same immediate vicinity, is a supply of natural warm water forming an artesian basin; that the evidence is insufficient to establish that the water flows in a subterranean stream, and the court accordingly finds that said supply of water is water percolating underground through a stratum of material which stratum is more pervious than the adjacent material, with the result that with such pervious stratum being tapped by the wells of the respective parties hereto, water from such wells flowed and flows freely therefrom in copious streams to the surface of the ground by artesian pressure, and such pervious stratum and the water percolating therein is the common source of supply for each and every of the flowing artesian wells of the parties hereto, which wells are hereinafter more particularly described, such source of supply forming a natural underground artesian reservoir which underlies not all, but a part of the lands of the several parties hereto."

Respondent was decreed a prior right to the use of forty miner's inches of water, with the following priority; as to seven miner's inches from July 1, 1921, and from July 1, 1922, as to thirty-three miner's inches. Appellants were decreed rights to the use of water from their several wells with priorities as follows: Thomas F. Edwards, forty-two miner's inches from November 22, 1926; H. W. Tiegs, forty miner's inches from March 23, 1927; and J. Ryan, forty miner's inches from September 24, 1927. The decree fixes the duty of water for irrigation purposes at two miner's inches per acre. The following provisions are contained in the decree:

"(1) That the waters herein decreed and allotted are subterranean waters subject to appropriation by the several parties hereto under the laws of the State of Idaho; That the waters flowing from the artesian well of each party is derived from the same source, and the supply of said wells constitutes one interdependent and connected source of supply, and such waters and said wells are hereby drawn within the jurisdiction of this court for distribution for beneficial uses under and pursuant to the terms of this decree.

"(7) The amount of water that may be permitted to flow from the wells of the defendants is hereby provisionally fixed and limited as follows: During the period from October 1st of each year to April 1st of the following year, the defendant Edwards may be permitted to flow from his said well and use for beneficial purposes fifteen miner's inches of water from April 1st to October 1st of each year, said defendant Edwards may be permitted to flow from his said well and to use for beneficial purposes twenty miner's inches of water, or so much thereof as will not deplete the flow of plaintiff's wells below forty miner's inches. No water shall be permitted to flow or be used from the respective wells of the defendants Tiegs and Ryan, as it is hereby further determined and decreed that until further order of the court, no water can without injury to plaintiff's prior right to the use of said water to the extent herein decreed be permitted to flow or be used from the wells of any of the defendants in excess of the amount herein permitted to be used by the defendant Edwards.

"(8) Each of the parties hereto shall install and maintain suitable and efficient valves, controlling works and measuring devices at their respective wells, all such valves and controlling works to be adequate to entirely shut off said water when required under the terms of this decree and all such measuring devices to be of such design as to accurately measure the amount of water diverted or flowing. All such controlling works and measuring devices shall at all times be subject to the inspection of any party hereto and of public officials, commissioners or watermasters having jurisdiction over the administration of this decree.

"(10) The enforcement of this decree is committed, in the first instance, pending the creation, as provided by law, by the Commissioner of Reclamation of the State of Idaho, of a water district comprising the source of supply of the water rights herein decreed, to said Commissioner of Reclamation who is hereby appointed a commissioner of this court for that purpose, to serve without compensation, he having consented so to do. Said Commissioner is hereby directed to regulate the flow of the wells of the parties hereto in accordance with the terms hereof and to make from time to time measurements of the flow of the said wells and keep a record thereof, and for this purpose may open and close, regulate and measure the flow of said...