Stevenson v. Steele

• Decision Date: 29 April 1969
• Docket Number: No. 10101,10101
• Citation: 93 Idaho 4,453 P.2d 819
• Parties: Austin STEVENSON et al., Plaintiffs-Respondents, v. Roy STEELE, Asahel Fairchild, LeRoy Day and Bruce Bedke, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 819

453 P.2d 819

93 Idaho 4

Austin STEVENSON et al., Plaintiffs-Respondents, v. Roy STEELE, Asahel Fairchild, LeRoy Day and Bruce Bedke, Defendants-Appellants.

No. 10101.

Supreme Court of Idaho.

April 29, 1969.

Herman E. Bedke, Burley, for appellants.

Parry, Robertson, Daly & Larson, Twin Falls, for respondents.

McQUADE, Justice.

All of the parties to this action own certain water rights originally established by an 1894 water decree (sometimes called the 'Stockslager decree') which apportioned the 'waters of Basin Creek, Warm Springs Creek, Spring Creek, Bostetter Springs and Summit Creek and their tributaries.' ¹ This controversy involves the waters of Warm Springs in particular, which rise upon appellant Steele's land and form Warm Springs Creek, a tributary to Basin Creek (which latter creek is sometimes referred to in the record and exhibits as Mill Creek). The parties to this action are farmers and ranchers in the Basin Creek area near Oakley, Idaho.

Before trial the parties stipulated many of the significant facts in this case by their 'Statement of Agreed Facts.' Among these facts were the following. The flow of Warm Springs for years has been constant at approximately thirty miner's inches (0.60 cubic feet per second). In 1961 appellants drilled two wells near the origin of Warm Springs, but have retained the right to operate only the second of these under Permit No. G-29751. This well is approximately 550 feet from Warm Springs and has the same source of water as Warm Springs. Therefore pumping from the well reduces the flow of water from Warm Springs until it ceases entirely. The water produced by Warm Springs is warmer than the surface flow from other sources of water in the area during the non-irrigation season. The local ground water board concluded that appellants' well rights were junior and subsequent to respondents' rights to the use of waters from Warm Springs.

Additional evidence produced at trial to the district judge sitting without a jury showed the following facts. Because the water of Warm Springs has a deep source, its temperature is constant at approximately 60 F. The well driller's log showed that the water is held in earth composed mainly of limestone and quartzite from 87 to 200 feet below the surface. ² The expert testimony of Mr. Keith Anderson, a consulting engineer whose qualifications were stipulated by appellants, ³ based upon the temperature and source of the water and the five year record of the effects of pumping the well upon the flow of Warm Springs, was that the continuation of appellants' present pumping program would result in the withdrawal of the ground water supply in that area at a rate beyond the reasonably anticipated average rate of future natural recharge.

The proceedings below were occasioned by the fact that, when the appellants began pumping their well at the start of the irrigation season, Warm Springs dried up and respondents were deprived of the irrigation water normally supplied by Warm Springs. Respondents therefore brought a claim before the local ground water board for Cassia County. ⁴ After hearing evidence and making findings of fact the board on October 22, 1962, issued the following order:

'THE BOARD THEREFORE, ORDERS that the water rights as may obtain through proof of completion of works and beneficial use as defined in Permit No. G-29751, for the respondents wells be recognized as of junior priority date to those rights to the use of Warm Springs water as set forth in the decree of the District Court of Cassia County, dated March 17, 1894, and applying to the waters of Basin Creek, Warm Springs Creek, Spring Creek, Bostetter Springs, Summit Creek and tributaries.

'THE BOARD FURTHER ORDERS that in the administration of the foregoing water rights due recognition be given to the provisions of Idaho ground water statutes to the end that the respondents may exercise the junior rights defined under Permit No. G-29751, by supplementing the diminished flow of Warm Springs with water in place and in kind sufficient to maintain a constant flow of 30 miner's inches (0.60 cubic feet per second).

'THE BOARD FURTHER ORDERS that in the administration of the foregoing water rights due cognizance be given to the increased draft hereby authorized from the source tapped by the respondents wells to the end that the senior rights shall not be impaired through the dissipation of the ground water supply and the consequent inability of the respondents to supplement the diminished spring flows at any future time.'

Appellants took no appeal from this order.

Appellants continued to pump their well and turned the required thirty inches of water back into Warm Springs during the irrigation season. However, appellants interpreted the order as not requiring the replacement of Warm Springs water after October 1st when the irrigation season ended and their own pumping of the well ceased. This had the effects of leaving Warm Springs dry from October 1 until various dates in December and January when its flow first returned and of preventing its return to a full thirty-inch flow until various dates in late January or February. Respondents complained that this deprived them of their customary means of watering stock during these months and caused them to incur extra pumping expenses.

Thus, after hearing before the department of reclamation on October 8, 1963, the following order issued:

'IN THE MATTER OF, the Ground Water Board Order of October 22, 1962, wherein the Board orders that the administration of the foregoing water rights due recognition be given to the provisions of the Idaho Ground Water Statutes to the end that the respondents may exercise their junior rights under Permit No. G-29751, by supplementing the diminished flow of Warm Springs, with water in place and in kind, sufficient to maintain a constant flow of 30 minor's inches (0.60 cubic feet per second); and,

'It Appearing, That the well defined in Permit No. G-29751 has been shut down as of October 1, 1963, and no water being delivered therefrom;

'IT IS THEREFORE ORDERED, by the State Reclamation Engineer, and in compliance with the Idaho Underground Water Code, and the terms of the decree applying to waters along Warm Springs Creek, that water be delivered in place and kind to the creek, until such a time as the flow from Warm Springs is sufficient to supply said 30 inches (0.60 cubic feet per second); the order to take effect immediately upon receipt of this notice.'

Appellants took an appeal from this order under I.C. § 42-237e.

Respondents moved that the district court dismiss the appeal to the district court on the theory that the order of the department of reclamation was merely an order to enforce the prior order of the ground water board from which no timely appeal had been taken. District Judge Webb denied the motion in a memorandum opinion which stated in part:

'(Appellants') counsel contends that the 1963 order made an additional obligation for (appellants) to pump the year around, whenever the stream flow was less than the 30 inches.

'(Respondents') counsel argue, with some degree of persuasion, that one can find no changes in the 1963 order from that of 1962, that it is simply an order to compel (appellants) to comply with the original order.

'I believe the two positions could be taken with logic. One that the 1963 order is simply a clarification of intent of the original order. This would hardly be a change of substance or character allowing later appeal. Another would be that, regardless of the Board's initial intent, (appellants) under the 1962 order had no obligation to pump all year while under the 1963 order they do. This would be a change of substance or character. Considering the interest of the law in preserving a person's right to appeal except where clearly lost or abandoned, I take the second position.'

It is apparent that the court desired to have the case tried upon its merits and therefore gave appellants the benefit of its doubts as to the appealability of the order.

District Judge Ward then tried the case de novo. Relying heavily upon the testimony of Mr. Anderson, the court concluded that if the summer irrigation pumping continued, the return of flow to Warm Springs would be less and later each year until finally it never returned because the pumping of the well would eventually deplete the ground water supply in that area. The court thus concluded that appellants could not exercise their junior well rights without impairing the senior rights of respondents in Warm Springs. The court permanently enjoined appellants from operating either of their wells at any time in the future and from interfering with respondents' rights to Warm Springs.

Appellants' first assignment of error is that the court erred in assuming de novo jurisdiction to try the October 22, 1962, ruling of the ground water board. This contention in essence is that the question whether or not pumping from the well had an adverse effect upon the ground water supply should not have been an issue in the trial. We disagree for the following reasons.

First, appellants appealed to the district court pursuant to I.C. § 42-237e. That section provides in pertinent part that 'any person dissatisfied with any decision, determination, order or action of the state reclamation engineer * * * or of any local ground water board * * *.' may appeal to the district court. The appeal must '(set) forth the reasons why the (order, etc.) was erroneous.' The state reclamation engineer must transmit a 'transcript of the proceedings and the evidence received * * * (at the prior) hearing and the evidence taken at such hearing may be considered by the District Court.' Then it is provided that 'the District Court shall try the same anew at the hearing on the appeal.'

As applied to the case at bar, appellant cannot now deny the existence of an issue which was raised by their own notice of appeal from the order...