Union Central Life Insurance Co. v. Albrethsen, 5433

• Decision Date: 24 December 1930
• Docket Number: 5433
• Citation: 50 Idaho 196,294 P. 842
• Parties: THE UNION CENTRAL LIFE INSURANCE COMPANY, Appellant, v. MARTIN ALBRETHSEN et al., Cross- Appellants, and BIG WOOD CANAL COMPANY, a Corporation, Intervenor and Respondent
• Court: Idaho Supreme Court

294 P. 842

50 Idaho 196

THE UNION CENTRAL LIFE INSURANCE COMPANY, Appellant, v. MARTIN ALBRETHSEN et al., Cross- Appellants, and BIG WOOD CANAL COMPANY, a Corporation, Intervenor and Respondent

No. 5433

Supreme Court of Idaho

December 24, 1930

WATERS AND WATERCOURSES-UNDERGROUND WATER-APPROPRIATION-COURTS-SUMMARY ADJUDICATION-VOID JUDGMENT, EFFECT OF-MORTGAGES-DITCH APPURTENANT TO LAND.

1. Under evidence, water, flowing in ditch constructed by land owner, coming out of gravel, underlying land, held "public water," included in adjudication of waters of creek.

2. Ditch not augmenting water flowing into stream did not become appurtenant to land on which water claimed to come from ditch was used.

3. Mortgage not referring to drain ditch but describing water decreed to mortgagor did not convey title to drainage ditch and water.

4. Decree adjudicating water rights was void, where defendant in action was merely deputy water-master and judgment-roll showed other noncompliances with statutory requirements (C S., sec. 7036).

5. Statute does not confer jurisdiction to enter summary decree adjudicating right to use water claimed to have been "developed" (C. S., sec. 7036).

6. When court of general jurisdiction has special and summary powers wholly derived from statute, everything necessary to give jurisdiction must appear by record.

7. Proceedings of judicial tribunals having no jurisdiction of subject matter are void.

8. Decree adjudicating water rights, being void, did not affect rights of anyone, nor raise estoppel against anyone (C. S sec. 7036).

9. Drain ditch did not become appurtenance to land by virtue of decree adjudicating water rights which was void (C. S., sec 7036).

10. Mortgage passed all easements and appurtenances at time belonging to lands (C. S., sec. 5375).

11. Where former owner of upper and lower ranches constructed drainage ditch which emptied into creek, but did not augment water flowing into stream, and constructor tapped creek for use of lower ranch, though waters thereof had already been appropriated, ditch was appurtenance to land of upper ranch.

12. Although ditch appurtenant to land emptied into creek, the waters of which had been appropriated, land owner could use waters flowing in ditch where they ultimately entered creek.

13. Mortgagor did not, by mortgage, convey any greater right to mortgagee than mortgagor had to waters of creek which had already been appropriated.

APPEAL from the District Court of the Fourth Judicial District, for Blaine County. Hon. Ralph W. Adair, Judge.

Action to quiet title to drain ditch and right to water therefrom. Judgment for intervenor and for defendants Albert Albrethsen and wife. Reversed in part; affirmed in part, and remanded.

Reversed and remanded with instructions. Petitions for rehearing denied.

McElory & Chalfant and William A. Brodhead, for Appellant Union Central Life Insurance Co.

Water seeping and percolating in land in private ownership is private water and is not subject to appropriation under the laws of the state. When the land owner permits private water to waste from his land, it then becomes public water.

An appropriator of water from a stream cannot "predicate" his right on any particular feeder of the stream. His "diversion works" are limited to the dam or headgates taking the water from the stream. A private drain ditch from which feeder water wastes into the stream is not "an integral part" of such diversion works. (Public Utilities Com. v. Natatorium Co., 36 Idaho 287, 211 P. 533; Boise Irr. etc. Co. v. Stewart, 10 Idaho 38, 77 P. 25, 321; Walbridge v. Robinson, 22 Idaho 236, 125 P. 812, 43 L. R. A., N. S., 240; Bennett v. Twin Falls N. S. L. & W. Co., 27 Idaho 643, 150 P. 336.)

J. G. Hedrick, for Appellants Albert Albrethsen et ux.

Bissell & Bird, for Respondent Big Wood Canal Co.

Subterranean waters which, if undisturbed, naturally percolate and seep into a natural watercourse, form a part thereof, are subject to appropriation, and cannot be interfered with, to the detriment of prior appropriators of the waters of such stream. (C. S., secs. 5558, 5569, 5561, LeQuime v. Chambers, 15 Idaho 405, 98 P. 415, 21 L. R. A., N. S., 76, Bower v. Moorman, 27 Idaho 162, Ann. Cas. 1917C, 99, 147 P. 496, Short v. Praisewater, 35 Idaho 691-702, 208 P. 844, and Wiel on Water Rights, 2d ed., sec. 356 et seq.)

The summary supplemental adjudication of a water right, under C. S., sec. 7036, does not actually adjudicate a right, but merely affords a prima facie right to the delivery of water. (Mays v. District Court, 34 Idaho 200, 206, 200 P. 115.)

KOELSCH, D. J. Givens, C. J., and Lee, Varian and McNaughton, JJ., concur.

OPINION

KOELSCH, D. J.

This three-sided action involves the ownership and right of control of a certain underground drain ditch and the right to the use of about 150 inches of water flowing out of said drain ditch into a tributary of Silver Creek, and thence into said creek, all in Blaine county, Idaho.

In 1917 one Martin Albrethsen was the owner, so far as concerns us here, of two tracts of land in Blaine county, Idaho, one referred to as the upper ranch, the other as the Home Ranch. These lands are situate on and are part of a triangular territory comprising approximately 20,000 acres, and known as Bellevue Flats. The surface soil of this triangular territory is underlaid with coarse gravel, with here and there a streak of almost impervious clay, which retards or impedes, but does not prevent, the seepage of water in a southerly direction or course, from all sections of the triangle. Silver Creek is a natural stream in the southerly end and near the base of the triangle, flowing in a southeasterly direction. Little Wood River is merely a continuation of Silver Creek. All waters from whatever source draining off the surface, or percolating through the porous subsoil of Bellevue Flat, find their way into Silver Creek. The waters of Silver Creek and Little Wood River have been completely appropriated for irrigation purposes, and at the time we speak of, the priorities of such appropriations had been adjudicated by decrees of the district court in and for the fourth judicial district, in the two cases of Frost v. Alturas Water Company and Woodworth v. Anthony.

Martin Albrethsen irrigated the upper ranch with waters out of Big Wood River by virtue of a decreed water right to 600 inches, and the Home Ranch by water from a pond, and also by water from Silver Creek, by virtue of a decreed right to the use of 280 inches out of said Silver Creek. In the year 1917 the said Martin Albrethsen commenced the construction of a drain ditch on the upper ranch. The primary purpose of this ditch was drainage, though said Martin Albrethsen also testified that he intended to use the drainage water made available by this ditch, as an auxiliary supply for the Home Ranch. When completed in 1920 this drain ditch was about one-half mile in length and emptied into Aker Creek, a small tributary of Silver Creek. Claiming that the water thus conducted by his drain ditch, which at times was as much as 200 inches, was "developed" water, Martin Albrethsen, by means of a ditch at a point on Silver Creek five or six miles below the junction of the drain ditch with Silver Creek, diverted and conducted an equal quantity of water on to his Home Ranch. On completion of the drain ditch, and on June 10, 1920, the said Martin Albrethsen commenced his action, under the provisions of C. S., sec. 7036, and on July 1, 1920, a judgment was therein entered, adjudging the said Martin Albrethsen owner of 250 inches of water so drained from the upper ranch by means of said drain ditch, and entitled to the "exclusive right to the use of the said waters so long as he maintains said drainage ditch and drains the said water from said land, and that the priority of use of the said water is August 1, 1917."

On July 22, 1921, Martin Albrethsen and his wife gave a mortgage on the Home Ranch to the defendant and cross- appellant Albert Albrethsen, which mortgage, after describing the lands thereunder, included therewith the water from the pond, the 280 inches of Silver Creek, and "also one hundred fifty (150) inches of drainage water decreed to Martin Albrethsen in the case of Martin Albrethsen v. Charles Brett, Watermaster, dated July 1, 1920, with priority date of August 1, 1917."

On July 7, 1922, Martin Albrethsen and his wife gave a mortgage to the appellant-plaintiff, The Union Central Life Insurance Company, on the upper ranch, including all ditch and water rights belonging to said land, or used on the same. In 1925 the Life Insurance Company foreclosed this mortgage, and after the proper proceedings the sheriff of Blaine county, on April 27, 1926, issued his deed for said property to the Life Insurance Company, who thereupon took possession and ever since has maintained possession of said upper ranch. It is by virtue of this foreclosure and sale that the Life Insurance Company claims ownership of the drain ditch as one of the appurtenances of said upper ranch.

In 1924 the appellant, Albert Albrethsen, also foreclosed his mortgage on the Home Ranch, under which foreclosure sheriff's deed was issued to him on March 6, 1926, and he thereupon entered upon said Home Ranch and ever since has maintained his possession thereof; and during the time he has been so in possession, and until prevented in 1926 by the tenant, R. E. Buttram, under the Union Central, of the upper ranch, the water-master of the district has measured out of Silver Creek to said Albert Albrethsen, a quantity of water equal to that flowing out of the drain ditch from time to time, and said Albert Albrethsen has used such water on the Home Ranch just as his predecessor Martin Albrethsen...