Tobey v. Bridgewood
| Citation | 127 P. 178,22 Idaho 566 |
| Parties | CARTER McVINE TOBEY, Appellant, v. J. H. BRIDGEWOOD, W. T. ROBINSON and MARY BRIDGEWOOD, Respondents |
| Decision Date | 03 October 1912 |
| Court | United States State Supreme Court of Idaho |
APPEAL from the District Court of the Fourth Judicial District for Elmore County. Hon. Edward A. Walters, Judge.
Action to determine the rights of two different persons to the right to enter upon state land and for an injunction. Judgment modified.
Judgment modified, and judgment entered in favor of the respondent action dismissed.
D. C McDougall, Attorney General, files brief on behalf of the State, but cites no authorities.
Perky & Crow, for Appellant.
The permit of the state engineer gives only an inchoate right and is not in itself an appropriation of the public waters of the state, but is merely the consent of the state to such appropriation, to use public waters, under the manner of an appropriation sanctioned by law. (Speer v. Stephenson, 16 Idaho 707, 102 P. 365.)
The permit of the engineer gave no right to use it to interfere with the vested right of appellant. The state engineer has no right, power or authority to interfere with vested rights. (Nielson v. Parker, 19 Idaho 727, 115 P. 488.)
The respondent and her agents and employees, until granted the right thereto by the state land board, were mere trespassers. Their acts of appropriation were founded on trespass. Being founded on trespass, such appropriation would be void as against the land owner whose land is trespassed upon. (1 Wiel, Water Rights in the Western States, 3d ed., sec. 221, and cases cited; Prentice v. McKay, 38 Mont. 114, 98 P. 1081; Smith v. Benniff, 24 Mont. 20, 81 Am. St. 408, 60 P. 398, 50 L. R. A. 741; Curtis v. La Grande Water Co., 20 Ore. 34, 23 P. 808, 25 P. 378, 10 L. R. A. 484; Le Quime v. Chambers, 15 Idaho 405, 98 P. 415, 21 L. R. A., N. S., 76.)
The fact that a party has a water right gives him no right to enter the lands of others for the purpose of constructing canals or ditches across them, except over the lands of the United States. He must obtain that easement or right of way by purchase or condemnation. (Swank v. Sweetwater etc. Co., 15 Idaho 360, 98 P. 297.)
J. G. Watts, for Respondents.
This court has held that the public auction provision of the constitution must give way to the sovereign right of eminent domain, but its reasoning would seem to preclude any other means of obtaining title to state lands except at public sale. (Hollister v. State, 9 Idaho 8, 71 P. 541.)
The legislature cannot authorize the land board or anyone else to do an act with reference to state lands that is forbidden by the constitution. (Balderstone v. Brady, 17 Idaho 567, 107 P. 493; Rogers v. Hawley, 19 Idaho 751, 115 P. 687.)
Mary Bridgewood has a permit, or, as this court puts it, the consent of the state to acquire real property. It matters not that the water she desires to appropriate is on state land--her right to appropriate is in no way impaired. (Idaho Power & Trans. Co. v. Stephenson, 16 Idaho 418, 101 P. 821.)
A wrongdoer against the private land owner has no vested right until prescription has arisen, but in the meantime may hold possession against anyone but the true owner. (Wiel on Water Rights in Western States, 3d ed., sec. 246, and cases cited. See, also, sec. 625 et seq.)
One right was of equal sanctity under the law with the other; the intervenor's being the prior right, the appellant took the property burdened with her right. The land was impressed with intervenor's water right at the time appellant purchased. (Le Quime v. Chambers, 15 Idaho 405, 98 P. 415, 21 L. R. A., N. S., 76.)
This action was brought in the district court of Elmore county by the appellant against J. H. Bridgewood and W. T. Robinson, for the purpose of obtaining a restraining order, restraining the respondent from entering upon certain premises held by the appellant as a reservoir site. Mary Bridgewood was permitted by the trial court to intervene as a defendant, and is the real defendant in the case, and the one who filed an answer and cross-complaint denying the allegations of the complaint and alleging facts showing a pretended right existing in said Mary Bridgewood, by reason of having been granted a permit to appropriate water on the said land by the state engineer. The cause was submitted to the trial court upon a stipulation of facts, and the trial court made findings and entered judgment for respondent.
The facts as shown by the record are as follows: That Mary Bridgewood, the respondent, on the 19th day of November, 1908, made application to the state engineer for a permit to appropriate the public water of the state from a subterranean channel at a point on the southeast quarter of the northwest quarter of section 13, township 3 south, range 6 east, of Boise meridian, the point of diversion being at a small seepage indicating an underflow of water, and that in said application said Mary Bridgewood stated her intention to develop the water by finishing a project started by Charles Abbott, or by sinking a well, or both; that such application for permit was made for the purpose of irrigating 80 acres of land described as the south half of the southwest quarter of section 13, range 6 east, of Boise meridian; that such land is arid in character and will not grow crops without artificial irrigation; that the application for permit was approved by the state engineer on November 28, 1908, and provided that work should begin on the project on January 27, 1909, and the work of diversion should be completed on or before November 28, 1910; that on the 18th day of September, 1909, the respondent, Mary Bridgewood, entered upon the southeast quarter of the northwest quarter of said section 13, township 3 south, range 6 east, with a well-drilling machine, and proceeded to the point indicated in the permit held by the respondent and commenced sinking a well for the purpose of developing water appropriated by respondent under said permit; that on the 19th day of November, 1908, and the 18th day of September, 1909, and continuously from the time that the respondent made application to the state engineer for permit to appropriate the public waters of the state, and up to the 12th day of October, 1909, legal title to the southeast quarter of the northwest quarter of said section 13, township 3 south, range 6 east, was in the state of Idaho; that prior to the entry upon said land by appellant, application was made to the state land board by appellant to lease said land, and that such application to lease was refused by the board on the 24th of September, at which time the board notified the appellant that "the board decided not to lease, but would sell the land in question under provision act mentioned our letter 21st," and the letter contained the following: That in compliance with the proposal of the board, on the 25th day of September, 1909, the appellant made formal application to purchase the land under the law referred to, and on the 3d of October, 1909, completed his survey of said land for reservoir purposes, and mailed the same to the land board with a check for $ 90 and the tracings and field-notes for said reservoir site, which said check and field-notes were received by the state land board on the same day; that on the 12th day of October, 1909, said land board made and executed its deed to the plaintiff for the following described tract of land. The deed to said tract of land contains the description of said land, and it will not be here stated. The deed referred to is as follows:
That the point at which the defendants were sinking said well was within the boundaries of the land described above; that on the 4th day of October, 1909, this action was commenced in the district court, and a restraining order was granted, and at the time of granting said order the well had reached the depth of 127 feet, and Mary Bridgewood had paid therefor the sum of $ 2.50 per foot; that the purpose of the plaintiff in acquiring the tract of land from the state was to store water for...
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