Walbridge v. Robinson

• Decision Date: 03 July 1912
• Citation: 125 P. 812,22 Idaho 236
• Parties: ALFRED G. WALBRIDGE and FRANK H. BAILEY, Respondents, v. A. E. ROBINSON, State Engineer, Appellant
• Court: Idaho Supreme Court

125 P. 812

22 Idaho 236

ALFRED G. WALBRIDGE and FRANK H. BAILEY, Respondents, v. A. E. ROBINSON, State Engineer, Appellant

Supreme Court of Idaho

July 3, 1912

WATER RIGHTS-STATE OWNERSHIP OF WATERS-DIVERSION FOR USE IN ANOTHER STATE-OPERATION OF LAWS CONFINED TO JURISDICTION OF STATE-GIFT OR GRANT OF PUBLIC RESOURCE NOT CONFERRED.

(Syllabus by the court.)

1. Under the provisions of the constitution, sec. 1, art. 15 and sec. 3240, Rev. Codes, all the waters of the state when flowing in their natural channels, including the waters of all natural springs or lakes within the boundaries of the state, are declared to be the property of the state.

2. The title to the public waters of the state is vested in the state for the use and benefit of all the people of the state under such rules and regulations as may be prescribed from time to time by the law-making power of the state, and such title is held by the state in its sovereign capacity as the representative of all the people.

3. The courts and text-writers uniformly class wild animals, fish game, gas, light, air, and water in the same category as things of "the negative community," or the property of no one, and subject to the regulation and control of the state in its sovereign capacity.

4. The state has a right to forbid and prohibit the appropriation and diversion of its public waters for application and use beyond the confines of the state and within the jurisdiction of another state.

5. Statutes are intended to apply and be confined in their operation to persons, properties, and rights which are within the territorial jurisdiction of the law-making power; and one who claims the benefit of such laws for either person or property beyond the territorial jurisdiction of the law-making power must rest such claim upon a statute granting such extraterritorial right.

6. No presumption arises, from a failure of the state through its legislative authority to speak on the subject, that the state intends to grant any right, privilege or authority under its laws to be exercised beyond its jurisdiction.

7. The state of Idaho has not granted the right to appropriate and divert the waters of this state for application to any beneficial use beyond the confines of the state.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.

Action for writ of mandate to compel the state engineer to give notice and issue a certificate of completion of diversion works. Writ granted. Appeal by defendant. Judgment reversed.

Reversed and remanded with direction. Costs awarded in favor of appellant. Petition for rehearing denied.

Herbert Wing and J. H. Peterson, for Appellant.

Numerous cases have been tried involving questions of jurisdiction relative to the distribution of the waters of interstate streams for irrigation purposes. These cases, however, only determined the rights of individuals, and in no case has the interest of the state in its waters been decided; in fact the supreme court of the United States has held that this question cannot be raised by the individual, but must be raised by the state itself. (Rickey Land & Cattle Co. v. Miller & Lux, 218 U.S. 258, 31 S.Ct. 11, 54 L.Ed. 1032; Kansas v. Colorado etc., 206 U.S. 46, 27 S.Ct. 655, 51 L.Ed. 956.)

Although title to things in the negative community was never recognized as vesting in the individual, yet the right of a state or nation, either as proprietor or by reason of its sovereignty to control the use of things in the negative community for the benefit of its citizens, has become firmly established by the courts. (1 Farnham on Waters and Water Rights, 74, 75; State v. Rodman, 58 Minn. 393, 59 N.W. 1098; Freund, Police Power, p. 447; Commissioners etc. v. Withers, 29 Miss. 21, 64 Am. Dec. 126; Geer v. Conn., 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793; Hudson County Water Co. v. McCarter, 209 U.S. 349, 28 S.Ct. 529, 52 L.Ed. 828, 14 Ann. Cas. 560.)

When Idaho became a state, Congress approved the constitution adopted in the constitutional convention, and thereby passed the title and control of all of the public waters within the state to the state of Idaho, by ratifying sec. 1 of art. 15.

That the legislature has always assumed that the state owns its waters is to be gathered from a careful consideration of all the water laws passed since Idaho became a state.

In the absence of a specific declaration, the scope and operation of a statute lies within the territorial limits of the state whose legislature enacted it. (Black, Interpretation of Laws (1896), 89, 91; Endlich Interpretation of Statutes (1888), 233, 235; Cooley's Const. Lim., 7th ed., 176; Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95.)

"It is always to be presumed, in case of doubt or ambiguity, that the legislature does not intend to derogate from the authority of its successors, to make irrepealable laws, or to divest the state of any portion of its sovereign powers." (Black on Interpretation of Laws (1896), 109, 119; Endlich on Interpretation of Statutes (1888), 497, and cases cited.)

S. H. Hays and Martin & Cameron, for Respondents.

In the absence of legislation to the contrary, it will be presumed that the states are willing to ignore boundaries and allow the same rights to be acquired from outside the state that can be acquired within it. (Bean v. Morris, 221 U.S. 485, 31 S.Ct. 703, 55 L.Ed. 821.)

There are no restrictions as to residence or citizenship of appropriators of water. The fact that the respondents are residents of Montana does not prejudice their rights under our law. (Wiel, 3d ed., p. 341; Maeris v. Bicknell, 7 Cal. 261, 68 Am. Dec. 257; Davis v. Gale, 32 Cal. 26, 91 Am. Dec. 554; Long on Irrigation, sec. 35; Kinney on Irrigation, sec. 155; Mills' Irr. Man., p. 58.)

The right of appropriation as defined by the best authorities is not controlled by the location of the stream with reference to the premises which are irrigated. (Kinney on Irrigation, 156; Long on Irrigation, sec. 50, p. 92; Offield v. Ish, 21 Wash. 277, 57 P. 809, 810; Thomas v. Guiraud, 6 Colo. 530; Hammond v. Rose, 11 Colo. 524, 7 Am. St. 258, 19 P. 466; Oppenlander v. Left Hand Ditch Co., 18 Colo. 142, 31 P. 854.)

Interstate streams have been the subject of controversy in several cases. Most of the cases say that no innovations in the law of appropriation are necessary on that account. (Wiel, 3d ed., p. 361.)

The general attitude of the federal court is to see that there is an equitable apportionment of benefits between citizens of each state collectively just as between the states themselves. (Wiel, 3d ed., secs. 342, 366; Anderson v. Bassman, 140 F. 22; Cline v. Stock, 71 Neb. 70, 98 N.W. 456, 102 N.W. 265; Willey v. Decker, 11 Wyo. 496, 100 Am. St. 939, 73 P. 210; Howell v. Johnson, 89 F. 556.)

Bear creek being located so near the boundary line in Idaho and the lands to be irrigated in Montana being located so near the boundary line makes the reasoning and the principles of law in the case of Willey v. Decker, supra, upon interstate waters applicable in deciding the law of the case at bar. (Perkins County v. Graff, 114 F. 441, 52 C. C. A. 243.)

The constitution and laws of our state do not prohibit the diversion of water from this state to lands in a sister state. (Const., art. 15, secs. 1-3; Rev. Codes, sec. 3240.)

The development of the material resources of the state is not development to the state or for the state itself, but development for the public. (Wiel, 3d ed., p. 196.)

It is not usual to regard a declaration that the waters of the state are owned by the state as in itself prohibiting the diversion of waters beyond the state boundary lines. (Perkins County v. Graff, supra; Hoge v. Eaton, 135 F. 411; Bean v. Morris, 221 U.S. 485, 31 S.Ct. 703, 55 L.Ed. 821, and cases cited.)

AILSHIE, J. Stewart, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

This is an appeal from an order granting a writ of mandate. On the 9th of November, 1909, respondents made application to the state engineer for a permit to appropriate water from Bear creek, which is a branch of the Clearwater river, situated in Idaho county. This application was made for the diversion of waters to be carried beyond the watershed of Bear creek and applied to the purposes of irrigation in the state of Montana. The permit was subsequently issued and was numbered 5494. Prior to the issuance of this permit, a similar permit had been granted to one George F. Weisel for the diversion of waters from Bear creek, to be carried across the line and used in the state of Montana, and permit No. 5445 had been issued. Subsequent to the issuance of these permits, a contest was filed by the respondents, and after a hearing the state engineer refused to take any action on the matter or grant any relief to either of the parties, upon the ground that in issuing the permits he had exceeded his lawful authority in attempting to grant a right for the diversion of the waters of this state to be applied to a beneficial use in another state. Thereafter the respondents herein represented to the state engineer that they had constructed their diversion works, as required under the application and permit, and were prepared to make proof of completion of the work as required by law, and asked that notice be given of the hearing and that they be given a certificate of the completion of their works. The state engineer refused to give notice or take any action in the matter, on the ground that he had no legal authority to grant such a certificate. This suit was thereupon instituted.

The question here arises as to whether a lawful appropriation and diversion of the waters of this state can be made for application to a beneficial use in...