Soderman v. Kackley
| Decision Date | 17 September 1976 |
| Docket Number | No. 11959,11959 |
| Citation | 555 P.2d 390,97 Idaho 850 |
| Parties | John SODERMAN et al., Plaintiffs, v. Dr. Evan KACKLEY et al., Defendants. R. Keith HIGGINSON, Director Idaho Department of Water Resources, Cross-Claimant-Appellant, v. UNITED STATES, Cross-Defendant-Respondent. |
| Court | Idaho Supreme Court |
Nathan W. Higer, Asst. Atty. Gen., Boise, for cross-claimant-appellant.
Dan E. Dennis, Asst. U. S. Atty., Boise, and Larry G. Gutterridge, Atty., U. S. Dept. of Justice, Washington, D. C., for cross-defendant-respondent.
This action was instituted by plaintiffs, John Soderman, et al, to adjudicate water rights in Gravel Creek, Lincoln (Harrison) Creek, and Wayan (Wayne) Creek, all in Caribou County, Idaho. 1 Named as defendants in plaintiffs' complaint were Dr. Evan Kackley, et al, R. Keith Higginson, Director of the Idaho Department of Water Resources (Higginson), and the United States of America through the United States Forest Service, Department of Agriculture, (United States). The United States filed an answer 2 to the complaint in which it claimed as an affirmative defense that it had non-consumptive water rights in the three creeks under the 'federal reservation doctrine.' In response to this affirmative defense, Higginson, on behalf of the State Department of Water Resources filed a cross-complaint against the United States in which he disputed the validity of this non-consumptive water rights claim, and in which he asked that the claim be denied. The United States answered the cross-complaint by asking that it be dismissed and that judgment be entered in its favor, recognizing its non-consumptive right to the entire natural flow of the creeks in question and their tributaries,
'. . . because these rights are appurtenant to land in the Caribou National Forest which were withdrawn and reserved by Presidential Proclamation on January 15, 1907, 34 Stat. 3267.'
Hereafter, Higginson will be referred to as cross-claimant, and the United States as cross-defendant.
The cause came on for trial on November 4, 1974, before the Honorable Francis J. Rasmussen, sitting without a jury. The rights of all the parties to the litigation inter sese 3 other than the non-consumptive use rights claimed by the cross-defendant were stipulated. As a result of the stipulations, plaintiffs John Soderman, et al, and defendants Dr. Evan Kackley, et al, withdrew from active participation in the litigation and agreed to be bound by their stipulations. The trial proceeded to consider only the claims of cross-claimant and cross-defendant. The district court after hearing the evidence ruled in favor of the cross-defendant, concluding in part that:
'The United States is entitled under reservation doctrine to its claim of a non-consumptive use to the entire natural flow of the three streams in question from the point where they arise on the national forest boundaries to the point at which they leave the national forest boundary wth a priority date of January 15, 1907 since it has been shown that such use is required for the purposes for which the reservation was created, namely protection of watersheds, maintenance of natural flows in streams below the watersheds, production of timber, domestic uses, administrative-site uses, production of forage for domestic animals, stock grazing and watering, protection and propagation of wildlife, recreational uses by the public, fire fighting and prevention, preservation of fish cultures, and aesthetic and other public values.'
The district court also concluded in part that:
'The existence and priority of all other water rights, appurtenance of said water and ownership thereof having been stipulated to by all parties is hereby recognized and granted.'
A judgment and decree was entered as follows:
'IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the consumptive water claims, both current and foreseeable, of the United States Forest Service are established pursuant to the stipulation entered into by the parties, more fully set forth in the findings of fact and conclusions of law. 4
'IT IS FURTHER ORDERED that United States of America on behalf of the United States Forest Service is entitled to judgment in its favor and against all others to its claim of a non-consumptive use of the entire natural flow of the three streams in question from their point of origin on the national forest land to the national forest boundaries based upon the reservation doctrine.'
It is from this judgment and decree that cross-claimant brings this appeal.
We hold that this appeal must be dismissed...
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