Simonson v. Moon

• Decision Date: 16 October 1951
• Docket Number: No. 7726,7726
• Citation: 237 P.2d 93,72 Idaho 39
• Parties: SIMONSON et ux. v. MOON et al.
• Court: Idaho Supreme Court

Page 93

237 P.2d 93

72 Idaho 39

SIMONSON et ux. v. MOON et al.

No. 7726.

Supreme Court of Idaho.

Oct. 16, 1951.

Rehearing Denied Nov. 20, 1951.

Robert M. Kerr, Jr., Blackfoot, for appellants.

H. Wm. Furchner, Blackfoot, for respondents.

TAYLOR, Justice.

The plaintiffs (respondents) are the owners of the Northwest quarter of Section Thirty, in Township Four South, of Range Thirty-two, East of the Boise Meridian, in Bingham County, and 95.6 inches of water represented by 153 shares of stock in the Aberdeen-Springfield Canal Company. The defendants (appellants) Moon are the owners of the Northeast quarter of the Southwest quarter and Lot Three of the same section, bordering plaintiffs' property on the south, and 48.2 inches of water represented by 77.1 shares in the same canal. The defendants Wells are the owners of the West half of the Northeast quarter and the West half of the East half of the Northeast quarter of the same section, bordering plaintiffs' property on the east, and 39.4 inches of water represented by 63 shares in the same canal. The Low-Line Branch of the company's canal runs diagonally through plaintiffs' property in a northeast-southwest direction. The annexed plat portrays the relative location of the lands of the parties, the canal and ditches in question.

All three of the parties take their water for irrigation from the canal at point A. The plaintiffs use the ditch from A around to D by cutting the banks, and by checks placed at various points between A and B. They also use the ditch B-E by use of cuts in the banks. Water for the Wells land is diverted at C and D. Water for the Moon land is diverted, by means of the ditch B-E, at point E, and also through the ditch B-Y-C-D, at point D. In an effort to improve their land the plaintiffs Simonson sought and obtained the approval of Moon to the elimination of another ditch which formerly extended from the main lateral at a point near X south to point F, and at that time they extended the ditch from E to F for Moons' use. They also extended the drain which runs through the Moon property and into the plaintiffs' lands from the south, so that it cuts through the main lateral at point X, and extends to the north. In this operation the lateral at X was removed and the water conveyed across the drain by means of a syphon or pipe. Continuing their improvements in 1948 the plaintiffs built a new ditch from point D to E and cut off the ditch B to E, intending to remove the entire ditch and require Moons to take their water through the ditch B-Y-C-D, to E and F as thus extended. To this Wells and Moon objected, and the latter charged plaintiffs with a misdemeanor in the cutting of the ditch B-E. The plaintiffs thereupon brought this action seeking to restrain defendants Moon from further prosecution of the criminal complaint, and the defendants Wells from using the main lateral to convey more than 39.4 inches of water, and all of the defendants from interfering with plaintiffs in the removal of the branch lateral B-E. The defendants filed a joint answer and separate cross complaints, admitting the ownership of the lands and water rights as alleged by the plaintiffs and as outlined above, except that defendants deny plaintiffs' right to use the main lateral beyond B. They allege that they are the owners of rights of way through the main lateral to the points C, D and E for the conveyance of up to 70 inches of water by defendants Wells and up to 100 inches by the defendants Moon. The defendants also claim these same ditch rights by adverse possession and use for more than five years. They also allege that the main lateral from B around to C and D will not carry more than 100 inches of water and will not carry their combined streams. They also complain that the plaintiffs in constructing the drain have cut off their access to the upper part of the lateral with horses and equipment for the purpose of cleaning and maintenance. The defendants Moon further allege that they are the owners of a right to convey their water through the branch lateral B to E. The defendants Moon also claim damages to their grain crop during the season of 1948 by reason of the cutting of the branch lateral B-E. The defendants Wells claim damage to a potato crop during the season of 1948 by reason of the cutting of a dam in the lateral at C by the plaintiffs and consequent flooding.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In answer to the cross complaints the plaintiffs deny the damages alleged. They admit the occasional use by the defendants of the ditches in question for the conveyance of more than the number of inches of water represented by their respective shares in the canal company, and allege that the use for the excess flow was by permission of the plaintiffs. After trial of these issues the court found: 'That the said main lateral 'A-D' and the said branch 'B-E' were both established many years ago by the predecessors in title of the plaintiffs for the irrigation of plaintiffs' lands; that thereafter defendants Wells and their predecessors used said main lateral from 'A' to 'C' and 'D' for conveyance of a maximum of 75 miners inches to water to their said lands, and defendants Moon and their predecessors used said main lateral from 'A' to 'D' and said branch lateral from 'B' to 'E' for conveyance of a maximum of 75 miners inches of water to their said lands.'; and that the main lateral below X was used by all of the parties and their predecessors on a rotation basis, each party using that part of the lateral when it was not in use by either of the others, and that the length of use by each was generally in proportion to their respective acreages irrigated; that the lateral from B to D has a capacity of 'at least' 100 inches; that the new ditch from D to E was constructed in a good substantial manner and will convey 100 miners inches of water to point E at an elevation the same, or slightly higher, than that at which the water is conveyed through the branch laternal B-E; that the defendants Moon were not damaged by the cutting of branch lateral B-E; that the defendants Wells were not damaged by any acts of the plaintiffs; and that the construction of the drain through the lateral at X has interfered with defendants' access to the lateral above that point for cleaning and maintenance. The court concluded as follows:

'1. That the lateral ditch 'A-D' is of sufficient capacity to adequately convey the waters of the defendants Moon and defendants Wells from the point 'A' to point 'D' upon a rotation of use basis, which is the basis upon which said defendants have acquired their rights to the use of said lateral.

'2. That all parties to this action should be required to use the said lateral below the point 'X' in rotation with each other in proportion to the amount of land irrigated by each party from said lateral below said point 'X' at the time of the commencement of this action.

'3. That the plaintiffs should be required to construct an adequate diversion box or check at point 'D' on said lateral.

'4. That in the event actual use of said new ditch from point 'D' to point 'E' discloses that the same is inadequate for conveyance of 75 miners inches of water plaintiffs should make the same adequate.

'5. That plaintiffs have the right to remove the branch lateral 'B-E' and that defendants, and each of them, should be restrained from interfering with such removal.

'6. That plaintiffs should either clean said main lateral from point 'A' to point 'X' at their own expense or should provide reasonable means of access thereto by defendants for that purpose.

'7. That the parties to this action are entitled to convey through the said main lateral from point 'X' to point 'D' on a rotation of use basis the following maximum quantities of water:

Plaintiffs Simonson 100 miners inches

Defendants Wells 75 miners inches

Defendants Moon 75 miners inches

'8. That in the event defendants Wells and Moon do not rotate the use of said lateral as between themselves they are entitled to convey through said lateral on a rotation of use basis with plaintiffs the following quantities of water:

Defendants Wells 39.4 miners inches

Defendants Moon 48.2 miners inches or defendants Wells and Moon are entitled at their own expense to enlarge said lateral from 'X' to 'D' to a capacity sufficient to convey 150 miners inches of water; and in either event the defendants Wells will be required to construct an adequate check and measuring box at point 'C' at their own expense.

'9. * * *

'10. * * *

'11. That the parties should be required to rotate the use of said main lateral below point 'X' over a period of fifteen days commencing on the date following the signing of a decree herein in the following order, unless otherwise agreed by the parties; Plaintiffs Simonson, defendants Wells, defendants Moon; provided whenever the parties entitled to the use of said portion of said lateral shall fail to use the same for their full period of time or at all, then the other parties in the order of their respective turns should be entitled to use the same for the period or periods to which they are entitled as herein mentioned.'

The decree follows the conclusions and enjoins the parties accordingly, and then further provides: 'That within 90 days after the entry of this decree plaintiffs shall install in said lateral ditch at point 'D' an adequate diversion box or check; that within the same time each party hereto shall install at all points of diversion from said ditch used exclusively by such party where the same are required to prevent injury to the ditch or to other parties, adequate gates, checks or diversion boxes; that within the same time defendants Wells shall install an adequate check and measuring box at point 'C' on said ditch.'

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