Village of Peck v. Denison

• Decision Date: 27 January 1969
• Docket Number: No. 10159,10159
• Citation: 92 Idaho 747,450 P.2d 310
• Parties: The VILLAGE OF PECK, a municipal corporation of the State of Idaho, Plaintiff-Respondent, v. Roger DENISON and Louise Denison, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 310

450 P.2d 310

92 Idaho 747

The VILLAGE OF PECK, a municipal corporation of the State of Idaho, Plaintiff-Respondent, v. Roger DENISON and Louise Denison, Defendants-Appellants.

No. 10159.

Supreme Court of Idaho.

Jan. 27, 1969.

Rehearing Denied March 4, 1969.

J. H. Felton, Lewiston, for defendants-appellants.

Blake, Givens & Feeney, Lewiston, for plaintiff-Respondent.

McQUADE, Justice.

The evidence produced at the trial established the following facts. A controversy arose over the ownership of certain rights to water arising upon approximately thirty-five acres of land about one-half a mile west of the Village of Peck (hereafter referred to as the Village). This land is owned by appellant Denison at the present time and is hereafter referred to as the 'Denison land.' Running through the Denison land is Bear Creek, the waters of which empty ultimately into the Clearwater River. Within the Denison land and on the north side of Bear Creek there is a rocky and substantially brush-covered gully or draw with steep sides and sloping downward to Bear Creek. This gully is known locally, but not named officially, as Kayler Creek. In this gully are three springs designated in the record and on plaintiff's exhibit 3 as 'A,' 'B' and 'C,' spring A being uppermost in the gully, spring B midway down the gully, and spring C lowermost in the gully and nearest Bear Creek. Without the interference of any man-made works, the water from these springs flows down the gully into Bear Creek, especially in wet weather. Such appears to be the natural state of Kayler Creek. The history of man's use of these springs and Bear Creek is as follows. The Denison land was homesteaded in 1899 by one Adams, grandfather of James Kayler. It remained in the Kayler family from 1899 until 1937. The Kaylers met with officials of the Village in 1909 and created an agreement under which the Village would have use of the water from spring C, subject to the Kaylers' use of one inch of its water if other springs were not found. Since the Kaylers found another spring not here in issue, they abandoned the whole of spring C to the Village, and the Denisons do not now contest the right of the Village to the water from spring C. Likewise, the Village acquired by the 1909 agreement the right to augment its supply of water by tapping Bear Creek, which right also is not contested by the Denisons.

In 1912, the Kaylers gave the Village oral permission to develop spring B. In 1919, the Kaylers gave the Village oral permission to develop spring A. In 1925, the Village actually began using water from Bear Creek in dry periods. Since the year of initial use with respect to each of springs A, B and C, the Village has claimed and used all of the water flowing from them, except for losses in periods of turbidity at spring A and minor incidental losses. The Village water works remain the same now as they were thirty-eight years ago and consist essentially of an earthen dam at spring A, from which a pipe runs down to a catch basin at spring B, from which in turn a pipe runs finally down to spring C. The water so captured is then carried from spring C (and from Bear Creek in dry periods) by a pipe to the reservoirs of the Village of Peck. The Village then uses this water for domestic and firefighting purposes.

In 1937, the Kaylers deeded the Denison land to one Dorcy Willcox in fee, excepting, however, 'all water rights being used and heretofore granted to the twon of Peck, Idaho, and reserving an easement to go upon said premises for all necessary purposes in connection with the use of said water.'

In November, 1965, the Denisons purchased the Denison land and received a warranty deed without exceptions. Somewhat more than a month later, in January, 1966, the Denisons received the title insurance report which noted the two exceptions of record relating to the Village's water rights on the land. Denison denied that he had knowledge of the Village's claim to water from springs A and B, but admitted he had knowledge before the purchase of its claim to water from spring C and Bear Creek. These are the facts relating to the water rights.

As to the easement, it is uncontroverted that the Village employees and agents went on the Denison land in any manner they chose and with all necessary equipment for the purpose of servicing their system.

In the action by the Village for equitable relief designed to preserve its water supply, the district court decreed that the Village had acquired the right to take all the water arising from springs A, B and C in Kayler Creek; that the Village had acquired the right to supplement its supply of water by tapping Bear Creek; that the Village had acquired the right to maintain its water works upon the Denison land; that the Village had acquired a right of ingress and egress over the Denison land for all purposes necessary to operate and maintain the water works. The court quieted title to these rights in the Village and permanently enjoined appellant Denisons from interfering with the rights of the Village in any way. The court further assessed against appellants and awarded the Village $6,000 as punitive and exemplary damages, plus coats and interest from the date of judgment.

The only water to which appellants contend the Village had no right is that flowing from springs A and B. The Village has advanced various theories upon which it contends it acquired a right to this water. However, we decide this appeal on the single ground that the water from these springs was public and therefore was duly appropriated to beneficial use by the Village. The evidence showed that the water of springs A and B, when not captured for man's use, flows in natural channels down Kayler Creek Gully into Bear Creek, which in turn empties into the navigable Clearwater River. The Village has appropriated the entire supply of water from these springs to its beneficial use. No other persons, including appellants, had ever appropriated this water to beneficial use. Therefore the Village acquired a right to use all of the water from these springs according to the constitution and statutes of this State and the decisions of this Court. ¹

Appellant argues that, since the Village originally acquired a right to the waters from spring C pursuant to the terms of the 1909 written grant, it must be concluded that the water flowing from springs A and B are private waters to which rights may be acquired only by other writings. This contention is without merit because the testimony and photographic exhibits admitted into evidence showed that all of the water arising from these springs, if unobstructed, will flow naturally down the gully to Bear Creek. Hence the water is public and subject to appropriation by the constitutional method. Rights to water may be acquired in various ways under the law of this State, and the various means of acquisition are not necessarily mutually exclusive.

Appellants' main contention is that the district court erred in failing to require that the Village show it was entitled to some specific amount of water expressed in cubic feet per second under I.C. § 42-102. That section provides as follows:

'Measurement of water.-A cubic foot of water per second of time shall be the legal standard for the measurement of water in this state, and it shall be the duty of the department of reclamation to devise a simple, unform system for the measurement and distribution of water.'

Appellant then argues that any decree which omits such a measurement is void for vagueness. We agree with the contention of the respondent Village, however, that the cases cited by appellant ² for the application of such a rule are not pertinent to the issue in the case at bar.

The requirement that a decree of water rights set out a specific water measurement is not imposed by I.C. § 42-102. That statute simply provides the basic unit of measurement of water for whatever purpose may be relevant. This Court has imposed the measurement requirement as a corollary to the basic policy of the conservation of water resources for beneficial use. ³ The Court has required such a measurement when the decree is intended to settle the rights of various appropriators who claim and use fluctuating amounts of water from the same source. Thus, if the decree awards an uncertain amount of water to one appropriator whose needs are vague and fluctuating, it is likely that he will waste water and yet have the power to prevent others from putting the surplus to any beneficial use. On this basis the decree in Laidlaw was construed to award specific amounts to at least two competing appropriators. The Arkoosh decree was too broad because it permitted one of several appropriators to demand an unspecified amount of water for domestic use. The Hayes decree was held vague in allowing one of two appropriators to take what he considered a 'proper irrigation stream.' The Reno decree distributed among forty-four parties an amount of water exceeding the total flow of the stream. The Hanford decree was held defective because it awarded all of the water of a stream to one of two appropriators who could not use all of the water. The practice condemned by these cases was not simply the issuance of unmeasured decrees but that of awarding to one competing appropriator more water than he could beneficially use. These cases express a policy against waste irrespective of the technical legal error found to have permitted it.

In the present case, the Village has shown that it had used for beneficial purposes all of the water from springs A and B until appellants interfered with their right. Appellants have never applied any of this water to beneficial use. They do not allege that there is any excess which the Village cannot use. In these circumstances, it is not necessary that the decree set forth a specific amount of water to which the Village is entitled. A decree giving 'all' of the water from a certain...