Twin Falls Canal Co. v. Shippen
Decision Date | 01 November 1928 |
Docket Number | 4985 |
Citation | 271 P. 578,46 Idaho 787 |
Parties | TWIN FALLS CANAL COMPANY, a Corporation, et al., Appellants, v. CORA B. SHIPPEN et al., Respondents |
Court | Idaho 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.)
(1 Wiel, 3d ed., p. 545, sec. 506, citing Hallet v. Carpenter, 37 Colo. 30, 86 P. 317.)
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.)
(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.)
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...
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