Stickney v. Hanrahan

• Citation: 7 Idaho 424,63 P. 189
• Parties: STICKNEY v. HANRAHAN
• Decision Date: 20 December 1900
• Court: Idaho Supreme Court

63 P. 189

7 Idaho 424

STICKNEY v. HANRAHAN

Supreme Court of Idaho

December 20, 1900

WATER RIGHTS-TRANSCRIPT ON APPEAL.-Documentary evidence used upon a trial to be used upon appeal must be incorporated into a statement or bill of exceptions, and such statement or bill of exceptions duly settled.

MOTION TO STRIKE.-A motion to strike from the transcript upon appeal from a judgment documentary evidence used upon the trial, but which has not been incorporated into a statement or bill of exceptions, as required by sections 4430, 4441, and 4442 of the Revised Statutes, will be sustained.

STATEMENT AND BILL OF EXCEPTIONS.-Judgment was rendered January 2d plaintiff perfected his appeal therefrom January 5th, and served his proposed "statement and bill of exceptions on appeal from final judgment" January 26th; afterward, and on July 24th, defendants, without serving any proposed amendment upon the plaintiff, presented to the judge proposed amendments to plaintiff's said bill of exceptions consisting of a number of specifications of insufficiency of the evidence to support certain findings, and the judge allowed said proposed amendment, over the objections of the plaintiff. Held, that the allowance of such proposed amendment was error.

FINDINGS.-When the transcript upon appeal only contains a portion of the evidence introduced and used upon the trial, the findings of fact made by the trial court will not be disturbed on the ground that such findings are not supported by the evidence.

SAME.-A finding which is contrary to facts stated in the pleadings and a decree following such finding may be modified on appeal.

PLEADINGS-CONJUNCTIVE DENIALS.-A denial in the answer of several facts pleaded in a verified cross-complaint conjunctively, the denial being also general, is bad under the code which requires such denials to be specific.

WASTE OF WATERS.-A statute making it a misdemeanor to waste waters by diverting the same from a stream into depressions or dry channels, held to be in line with a well-defined public policy that existed before the enactment of such statute.

APPROPRIATION AND DIVERSION OF WATERS.-Waters that are appropriated for irrigation purposes are to be measured to the several claimants, under the law, founded on necessity, at the point of diversion.

WATERS TO BE MEASURED AT POINT OF DIVERSION-IMPERFECT DECREE-MODIFICATION OF DECREE.-A decree settling the rights of claimants to the waters of a stream, which does not designate the point of diversion as the point at which the water of the several claimants is to be measured, is imperfect, and may, upon appeal, be modified in that particular.

(Syllabus by the court.)

APPEAL from District Court, Blaine County.

Judgment Affirmed in part and cause remanded, with instructions in part.

Charles Wade Stickney, for Appellant.

At and long after the time of plaintiff's purchase from Smith, the state of the law governing this right is shown by many cases in several of the western states. In Nevada Water Co. v. Powell, 34 Cal. 109, 91 Am. Dec. 685, the court says that the first appropriator is entitled to use and enjoy the water to the full extent of his original appropriation. This has been followed in Lobdell v. Simpson, 2 Nev. 274; Ophir Silver Min. Co. v. Carpenter, 4 Nev. 543, 97 Am. Dec. 550; Barnes v. Sabron, 10 Nev. 217, 90 Am. Dec. 537; Paige v. Rocky Ford Canal Co., 83 Cal. 94, 21 P. 1102, 23 P. 875.) In Coonradt v. Hill, 79 Cal. 587, 21 P. 1099, it is held that the prior diverter of water from its natural channel by a completed ditch prior to the vesting of subsequent rights is entitled to all the water so diverted. This has been followed in DeNecochea v. Curtis, 80 Cal. 397, 20 P. 563, 22 P. 198; Burrows v. Burrows, 82 Cal. 564, 23 P. 146; Ramelli v. Irish, 96 Cal. 217, 31 P. 41; Wells v. Mantes, 99 Cal. 584, 34 P. 324; Drake v. Earhart, 2 Idaho 750, 23 P. 541; Nevada Ditch Co. v. Bennett, 30 Ore. 59, 45 P. 472, 60 Am. St. Rep. 777; Hill v. Newman, 5 Cal. 445, 63 Am. Dec. 140. In Dodge v. Marden, 7 Ore. 457, the court say that water rights are upheld by United States statutes, and belong to real estate, and hence are not lost by nonuser not amounting to abandonment. In Dexter v. Jefferson Paper Co., 50 N.Y.S. 557, 22 Misc. 389, the nonuser of a water right gives no ground for the acquisition of his rights by others, for he is not obliged to assert his rights until he wants to use the water. (Integral Q. Min. Co. v. Altoona Min. Co., 75 F. 379; Sloan v. Glancy, 19 Mont. 70, 47 P. 334; Brown v. Mullins, 65 Cal. 89, 3 P. 99; Green v. Carotta, 72 Cal. 269, 13 P. 685; Smith v. N. Canyon Water Co., 16 Utah 194, 52 P. 283; Unger v. Mooney, 63 Cal. 586, 4 Am. St. Rep. 100.) The idea of segregating the part applied to a beneficial purpose from the part running in the ditch and subject to an allegation of nonusage, and liable to be legally withdrawn from the owner's control as a penalty for nonusage, never entered the heads of either the lawmakers or the appropriators, and there is nothing in the statutes that indicate such an idea. On the contrary, the first law in 1881, and the Revised Statutes of 1887, cannot use plainer or less ambiguous language when they say that the appropriator "shall be taken to have secured all the water said works are capable of conducting, and not exceeding the amount claimed." It does not say, as this decree virtually says, "not exceeding the amount used." (Hillman v. Hardwick, 3 Idaho 255, 28 P. 440; Barrows v. Fox, 98 Cal. 63, 32 P. 811.) In Conant v. Jones, 3 Idaho 606, 32 P. 250, the principle is laid down as follows: "A decision that would defeat persons acting in good faith and using reasonable diligence, from securing the full benefit of the water appropriated, would be most unjust and inequitable. In the meantime, however, he is only entitled to such water, from year to year, as he puts to a beneficial use. A person may add from year to year acreage to his cultivated land, and increase his application of water thereto for irrigation as his necessities permit, until he has put to a beneficial use the entire amount of water at first diverted by him and conducted to the place of intended use."

John A. Bagley and Angel & Angel, for Respondents, cite no authorities not cited by appellant.

L. L. Sullivan, for Respondents Hanrahan and Taylor, cites no authorities on the points decided.

OPINION

PER CURIAM

This action was commenced by the appellant, as plaintiff, in the district court of the fourth judicial district, in and for Blaine county, against the respondent James N. Hanrahan and seventeen others, as defendants, to settle the rights and priorities of all the parties to the use of the waters flowing in that certain stream, known as "Antelope creek." The pleadings are very voluminous, eight of the defendants answering separately and filing cross-complaints. The other defendants failed to appear. The cause was tried by the court, findings of fact made, and the decree of the court entered settling the rights of the parties and determining their priority, as follows: The plaintiff, Stickney, three hundred and twenty inches, his right dating from September 30, 1879. Defendant Warren, sixty inches, dating from September 30, 1879. The defendant Hoalst, one hundred and thirty inches, dating from September 30, 1879. The defendant Hanrahan, one hundred and fifty inches, dating from October 15, 1893, to be of equal right and claim with the above-named plaintiff and above-named three defendants. The defendant Kinney, ninety inches, and the defendant Richardson, seventy inches, both dating from May 1, 1880. The defendant Green, one hundred and twenty-five inches, dating from November 15, 1883. The defendant Jenkins, eighty inches, dating from August, 1886. The defendant Taylor one hundred inches, dating from May 1, 1888. The said defendants moved for a new trial upon a statement or bill of exceptions proposed by the plaintiff and settled by the court, which motion for new trial was on the twenty-fourth day of July, 1900, by the district judge denied. The plaintiff appeals from the judgment to this court. Upon the record brought here upon plaintiff's appeal, the defendants cross-appealed.

The respondents moved to strike from the transcript all that part thereof, which includes exhibits used as evidence upon the trial, commencing at folio 401, on page 116, and ending at folio 557, on page 162, for the reason that said exhibits were not incorporated into a bill of exceptions or statement on motion for a new trial, and therefore not a part of the record upon appeal. This motion must be, and is, sustained. Upon appeal from a final judgment, such as the one appealed from in the case before us, there are only two ways of bringing the evidence before this court for review, viz., by incorporating the same into a bill of exceptions, or by incorporating the same into a statement of the case on motion for a new trial. (See Rev. Stats., secs. 4441, 4442, 4818.) It must be kept in mind that this is an appeal from a judgment.

A number of assignments of error are made by both parties to this appeal, nearly all of them being based upon the insufficiency of the evidence. Inasmuch as the record before us, the so-called statement or bill of exceptions, shows that all of the evidence introduced upon the trial of the case is not contained in the record, we feel unauthorized, under established rules of practice and the statutes of this state to disturb any of the findings of fact made by the lower court upon the ground that such findings are not supported by the evidence. A careful examination of what is designated in the record as "Statement and Bill of Exceptions on Appeal from Final Judgment" convinces us that the appellant intended to incorporate...