Twin Falls Canal Co. v. Shippen

Decision Date01 November 1928
Docket Number4985
Citation271 P. 578,46 Idaho 787
PartiesTWIN FALLS CANAL COMPANY, a Corporation, et al., Appellants, v. CORA B. SHIPPEN et al., Respondents
CourtIdaho Supreme Court

WATERS AND WATERCOURSES-CHANGE OF POINT OF DIVERSION-RESTRICTIONS - PROCEEDINGS - ABANDONMENT OF PRIORITY-TRANSFER OF WATER RIGHTS.

1. In proceeding to change the point of diversion and place of use of water under C. S., sec. 5582, question of abandonment of priority is matter to be settled in another proceeding, and is not properly before the court if proper objection is made thereto.

2. Water right is real property which may be sold and transferred separately from the land upon which it is used the same as any other real property under C. S., sec. 5325.

3. Stockholders in mutual ditch company as appropriators of water had pre-existing right to have point of diversion and place of use changed by application under C. S., sec. 5582 so long as rights of others were not injuriously affected.

4. Fact that stockholders in mutual ditch company sold portion of their water right represented by certificates to another company did not work abandonment of the water right preventing change of point of diversion under C. S., sec 5582, where rights of others were not injured.

5. Where stockholders in mutual ditch company applied water to beneficial use prior to sale of certificates, third parties acquired no right or interest in the water such as to prevent the prior appropriators from changing the point of diversion and point of use under C. S., sec. 5582, since third parties were not injured.

APPEAL from the District Court of the Ninth Judicial District, for Jefferson County. Hon. Geo. W. Edgington, Judge.

Appeal from judgment affirming order of commissioner of reclamation authorizing change of point of diversion and place of use of water. Affirmed.

Judgment affirmed. Costs to respondents.

Bothwell & Chapman, for Appellants.

"A change of the place of use of the waters will not be permitted where to do so will damage another appropriator." (Hall v. Blackman, 22 Idaho 539, 556, 126 P. 1045, 1047.)

"The procedure for change of point of diversion must be followed before the change (though made before the act) will receive legal recognition, and is not unconstitutional on that account. Under it, priority of right may at the same time be ascertained, and water rights settled in the same proceedings." (1 Wiel, 3d ed., p. 545, sec. 506, citing Hallet v. Carpenter, 37 Colo. 30, 86 P. 317.)

"In New Cache La Poudre Irr. Co. v. Water Supply & S. CO., 29 Colo. 469, 68 P. 781, we said that it was not proper, in a proceeding, to change the point of diversion, to go into the question of an enlarged use which the petitioner might make of the water after the point of diversion was changed; but this was immediately qualified by the statement that, if the evidence showed that the changed conditions necessarily, or by reasonable inference, would result in an enlarged use, the petition should not be granted. In the light of the offer made by respondents the court should have permitted pertinent evidence, if any, to show that the proposed change would necessarily cause the injury which they alleged would be inflicted."

O. A. Johannesen and C. A. Bandel, for Respondents.

The appropriator of water acquires such a property right to the use of the water that he may transfer it to other lands for use thereon, or he may sell the right separate and apart from the land to others to be transferred for use upon other lands. (Hard v. Boise etc. Co., 9 Idaho 589, 597, 76 P. 331, 65 L. R. A. 407; Boise City v. Stewart, 10 Idaho 38, 77 P. 25, 321; Hall v. Blackman, 8 Idaho 272, 68 P. 19; Bennett v. Twin Falls North Side etc. Co., 27 Idaho 643, 150 P. 336; Sanderson v. Salmon River etc. Co., 34 Idaho 145, 199 P. 999; Glavin v. Salmon River etc. Co., 39 Idaho 3, 226 P. 739; Koon v. Empey, 40 Idaho 6, 231 P. 1097; Drake v. Earhart, 2 Idaho 750, 23 P. 541; Hailey v. Riley, 14 Idaho 481, 95 P. 686, 17 L. R. A., N. S., 86; C. S., secs. 5563, 5582; McPhail v. Forney, 4 Wyo. 556, 35 P. 773; Kinney on Irrigation, p. 1535.)

"Upon the question of the extent of the injury to the vested rights of others, which must exist before any change is prevented, we will say in general here that it must be of such a nature that it is a real substantial injury and seriously affecting the rights of others. A mere fanciful or trifling injury will not prevent the change." (Kinney on Irrigation, p. 1538; Hard v. Boise City Irr. Co., supra.)

"A change of place of use of a decreed water right to lands other than those upon which such water right was formerly used does not constitute abandonment." (Joyce v. Murphy Land etc. Co., 35 Idaho 549, 208 P. 241; Bennett v. Nourse, 22 Idaho 249, 125 P. 1038; Joyce v. Rubin, 23 Idaho 296, 130 P. 793.)

The question whether or not the defendants have abandoned or through nonuse lost their water rights is collateral to the issue in this case, and cannot be made an issue here. It can only be settled in some other appropriate action, where the question is directly approached. (Wadsworth Ditch Co. v. Brown, 39 Colo. 57, 88 P. 1060; Lower Latham Ditch Co. v. Bijou Irr. Co., 41 Colo. 212, 93 P. 483; New Cache La Poudre Co. v. Water etc. Co., 74 Colo. 1, 218 P. 739; Wiel on Water Rights, pp. 1135, 1136.)

BUDGE, J. Wm. E. Lee, C. J., and Givens, J., and Hartson, District Judge, concur.

OPINION

BUDGE, J.

This proceeding was initiated before the commissioner of reclamation upon application of respondents as stockholders of the Long Island Irrigation Company for permission to change the point of diversion and place of use of 2,000 inches of the waters of Snake River previously decreed to the Long Island Irrigation Company. It appears from the application that respondents desire to have the 2,000 inches of water changed from the point of diversion maintained by the Long Island Irrigation Company to the point of diversion maintained by the Farmer's Friend Irrigation Company, and the place of use transferred from respondents' lands to lands under the system of the latter company. An order authorizing the transfer was issued by the commissioner of...

To continue reading

Request your trial
16 cases
  • In re Robinson
    • United States
    • Idaho Supreme Court
    • 23 Mayo 1940
    ... ... (Sec. 1, art. 15, I. C. A.; secs ... 41-108, 41-216, I. C. A.; Twin Falls Canal Co. v ... Shippen, 46 Idaho 787, 271 P. 578; Wadsworth Ditch ... ...
  • Nettleton v. Higginson
    • United States
    • Idaho Supreme Court
    • 12 Enero 1977
    ...Cummings, 81 Idaho 327, 340 P.2d 1111 (1959); Beecher v. Cassia Creek Irr. Co., 66 Idaho 1, 154 P.2d 507 (1944); Twin Falls Canal Co. v. Shippen, 46 Idaho 787, 271 P. 578 (1928); Bennett v. Twin Falls North Side Land & Water Co., 27 Idaho 643, 150 P. 336 (1915); Nelson Bennett Co. v. Twin F......
  • Jenkins v. State, Dept. of Water Resources
    • United States
    • Idaho Supreme Court
    • 8 Julio 1982
    ...the question of abandonment of a water right in a transfer proceeding. Jenkins relies primarily on the case of Twin Falls Canal Co. v. Shippen, 46 Idaho 787, 271 P. 578 (1928). In Shippen, the Court, noting "the record fails to show that appellants (protestants) were in any manner injured b......
  • First Security Bank of Blackfoot v. State, 5514
    • United States
    • Idaho Supreme Court
    • 26 Septiembre 1930
    ... ... Co., 9 Idaho 589, 76 P ... 331, 65 L. R. A. 407; Bennett v. Twin Falls N. S. L. & W ... Co., 27 Idaho 643, 150 P. 336; Sanderson v ... other appropriate proceeding (Twin Falls Canal Co. v ... Shippen, 46 Idaho 787, 271 P. 578) in an action ... involving ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT