St. John Irrigating Co. v. Danforth, 5542

• Court: Idaho Supreme Court
• Writing for the Court: GIVENS, J.
• 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
• Docket Number: 5542
• Decision Date: 09 April 1931

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.

[50 Idaho 514]

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

[50 Idaho 515] 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...