St. John Irrigating Co. v. Danforth

• Decision Date: 09 April 1931
• Docket Number: 5542
• Citation: 50 Idaho 513,298 P. 365
• Parties: ST. JOHN IRRIGATING COMPANY, a Corporation, Appellant, v. ASA H. DANFORTH, H. O. KENT, MARVIN A. BUTLER and JAMES BURNHAM, Respondents
• Court: Idaho Supreme Court

298 P. 365

50 Idaho 513

ST. JOHN IRRIGATING COMPANY, a Corporation, Appellant, v. ASA H. DANFORTH, H. O. KENT, MARVIN A. BUTLER and JAMES BURNHAM, Respondents

No. 5542

Supreme Court of Idaho

April 9, 1931

WATER AND WATERCOURSES-ABANDONMENT-DEVELOPMENT OF FLOW.

1. Former water adjudication held res adjudicata as to waters of springs referred to therein.

2. Where waters are adjudicated, but later abandoned, and adversely possessed for prescriptive period, adverse possessors would be entitled to them.

3. Abandonment of waters after adjudication is matter of intent coupled with corresponding conduct; thus a question of fact.

4. Where flow of springs is developed by defendants or their predecessors as new water, they are entitled to such developed waters.

APPEAL from the District Court of the Fifth Judicial District, for Oneida County. Hon. Jay L. Downing, Judge.

Action to quiet title to water. Judgment for defendants. Affirmed.

Judgment affirmed. Costs to respondents.

Jones Pomeroy & Jones, for Appellant.

Abandonment of a water right is a matter of intent coupled with corresponding conduct and such intent must be made to appear by clear and convincing evidence. (Joyce v. Murphy Land etc. Co., 35 Idaho 549, 208 P. 241; Syster v Hazzard, 39 Idaho 580, 229 P. 1110; Albrethsen v. Wood River Land Co., 40 Idaho 49, 231 P. 418; Union Grain etc. Co. v. McCammon Ditch Co., 41 Idaho 216, 240 P. 443; Featherman v. Hennessy, 42 Mont. 535, 113 P. 751.)

Developed water is defined as subterannean or underground water as is discovered and brought to the surface by the exploitation of man and which otherwise would run to waste. (Kinney on Irrigation, sec. 1205.)

Merrill & Merrill and J. H. Anderson, for Respondents.

Where one claiming the right to the use of water by prescription proves uninterrupted use for more than five years, the burden shifts to the other party to show that said use was permissive or without his knowledge. (5 Nichols' Applied Evid., p. 4598; Gurnsey v. Antelope Creek & Red Bluff Co., 6 Cal.App. 387, 92 P. 326; Gardner v. Wright, 49 Ore. 609, 91 P. 286.)

Abandonment of a water right may be proved by evidence of nonuser by a prior appropriator coupled with user by the subsequent appropriator. (Mellen v. Great Western Beet Sugar Co., 21 Idaho 353, Ann. Cas. 1913D, 621, 122 P. 30; Joyce v. Murphy Land etc. Co., 35 Idaho 549, 208 P. 241; Albrethsen v. Wood River Land Co., 40 Idaho 49, 231 P. 418.)

GIVENS, J. Lee, C. J., and Budge, Varian and McNaughton, JJ., concur.

OPINION

GIVENS, J.

Appellants sued to quiet title to the waters of certain springs, as flowing into Sheep Creek, thence into Dairy or Meadow Creek, alleged tributaries of the Little Malad River, and covered in an appropriation thereof, and therefrom decreed in a former water adjudication, St. John Irr. Co. v. Thomas Daniels et al., involving the waters of the Little Malad River, November 13, 1888, in the district court of the third judicial district of the territory of Idaho, in and for Oneida county, afterwards known as the fifth judicial district of the state.

Respondents denied that the waters of said springs flowed into Dairy or Meadow Creek, hence were not so adjudicated, and that respondents' predecessors had developed the waters of said springs as independent of Dairy or Meadow Creek, or that if the waters of said springs had ever flowed into Dairy or Meadow Creek, or been used by appellant, appellant had abandoned such waters, and respondents or their predecessors had acquired a prescriptive right to them by adverse use.

The court found that the waters of said springs had not been appropriated by appellant, or if they had, such water had been abandoned by appellant in 1906, and that respondents or their predecessors, had in 1914 and 1915, developed the waters of said springs, and since that time adversely used them for the requisite prescriptive period.

The springs in question were near a depression claimed by appellant to constitute Sheep Creek, flowing into Dairy or Meadow Creek. At the claimed point of confluence, the channel of Dairy or Meadow Creek was marshy, boggy, and there was thereby considerable loss of water. To avoid this, a by-pass channel or ditch was constructed by appellant along the side of Dairy or Meadow Creek, opposite that on which Sheep Creek entered, and from a point above thereof, in point of elevation to a point below, with, as claimed by respondents, an impervious dyke or bank on the upper side of said by-pass, channel or ditch, thus effectually preventing any waters of Sheep Creek entering as a surface flow into the lower reaches of Dairy or Meadow Creek, thence to appellant's canal.

No evidence of any subsurface flow was offered. It was further shown that the lower part of so-called Sheep Creek immediately above the point where it did, or is supposed, to flow into Dairy or Meadow Creek, had been plowed clear across and put in cultivation, and that the springs in question had for years not flowed a stream and were developed by respondents or their predecessors, and then flowed a stream only on to their respective properties, for slight irrigation and domestic use. Appellant produced evidence...