Smith Land Co. v. Fuhriman

• Citation: 36 F. Supp. 667
• Parties: SMITH LAND CO. v. FUHRIMAN et al. (POCATELLO VALLEY PIPE LINE CO., Intervener).
• Decision Date: 31 December 1940
• Court: U.S. District Court — District of Idaho

36 F. Supp. 667

SMITH LAND CO. v. FUHRIMAN et al. (POCATELLO VALLEY PIPE LINE CO., Intervener).

District Court, D. Idaho, E. D.

December 31, 1940.

J. D. Skeen and E. J. Skeen, both of Salt Lake City, Utah, for plaintiff.

A. L. Merrill and R. D. Merrill, both of Pocatello, Idaho, for defendants.

D. A. Skeen, of Salt Lake City, Utah, for intervenor.

CAVANAH, District Judge.

The plaintiff seeks a decree quieting title to the use of one-half of the flow of the spring or spring area located four miles east of Ridgedale, Idaho, and known as the Idaho Springs. The waters thereof are collected in diverting works near their source and for more than ten years past has been conveyed by pipeline from the collecting works to plaintiff's farm located in Boxelder County, Utah, and others, to their lands, where it has been beneficially used for culinary and stock watering purposes. It being charged in the complaint that the defendants wrongfully and in disregard of the rights of the plaintiff to the use of one-half of the flow of the waters, caused all of the waters to which the plaintiff is entitled, to be diverted from its pipeline, with the result that it is wholly deprived of water.

The defendants, by answer and cross-complaint, take issue with the plaintiff, as to its alleged right and assert that about January 5, 1938, they purchased approximately 2,650 acres of land, previously owned by William Longstroth, Steven Longstroth and George S. Longstroth, located in Idaho; that the Longstroths, their predecessors in interest, appropriated to a beneficial use and continued thereafter to beneficially use all of the waters of the spring and its area for domestic and culinary uses, to water livestock and for irrigation; that on January 5, 1909, an agreement was entered into in writing between Longstroths, who were then the owners of the real estate, and to the right of the use of said waters, and the Blue Creek Land and Livestock Company, who should develop the springs, so there would be obtained and maintained the maximum flow of water, and that the Blue Creek Land and Livestock Company should construct three tanks, all of the same material, one of which should be called the main tank and the other two individual tanks. One of which individual tanks was to belong to the Longstroths and one to the Blue Creek Land and Livestock Company. All of the tanks were to be constructed and maintained by the Blue Creek Land and Livestock Company, and to be maintained in such condition as to prevent any waste of the water; that the Blue Creek Land and Livestock Company shall construct their pipeline sufficient in size to conduct at least one-half of the Longstroth water to their lands so they can operate and reach their lands; that the Blue Creek Land and Livestock Company failed to carry out the terms of the agreement and have permitted the pipelines, spring boxes and conduits to break, decay and leak so that more than one-half of the waters of the spring area are lost, and the remaining portion is polluted, and by reason thereof it has forfeited all of its rights, and to the use of the water, under the contract. That if plaintiff has any claim in the waters from the spring and the spring area it must be based upon the agreement and as a successor in interest of the Blue Creek Land and Livestock Company; that the plaintiff has at all times failed and refused to maintain the system in a reasonable state of repair and refused to develop and maintain the spring area in order to secure therefrom the maximum flow of water and to prevent pollution and waste of the same. It is further alleged in the answer that to place the system in a condition to serve and deliver the minimum amount of water it would require the removal of all of the old rotten wooden pipe, and make other repairs, and the cross-complainant prays title to all of the water be quieted in them against plaintiff and if it be determined that the plaintiff has any right in the water that it be measured and conditioned upon complete development of the spring and spring area and the rebuilding of the system by the plaintiff and cross-defendant and repayment by the plaintiff to the defendant of all sums paid by them for the renovation and repair of the system and the loss sustained by them.

The Pocatello Valley Pipe Line Company in its complaint in intervention claimed to be the owner of and entitled to the use of one-half of the waters from January 7, 1921; that it has made improvements and complied with all the obligations and requirements connected with the acquisition and use of the waters. It denies that plaintiff has any right or interest in the waters, and offers to perform any and all conditions necessary to be done in order to fully develop and preserve and put to a beneficial use the waters.

The plaintiff challenges the jurisdiction of the court to hear the issues between it and the intervenors. It has conceded, however, jurisdiction exists as between it and the defendants. When jurisdiction is once acquired between the plaintiff and defendants, it is not defeated by the intervention of the Pocatello Valley Pipe Line Company on the ground that there does not exist a diversity of citizenship between the plaintiff and the intervenors, and the jurisdictional amount. Simpkins Federal Practice, Rules of...