Walker v. McGinness

• Decision Date: 13 June 1902
• Citation: 8 Idaho 540,69 P. 1003
• Parties: WALKER v. MCGINNESS
• Court: Idaho Supreme Court

69 P. 1003

8 Idaho 540

WALKER v. MCGINNESS

Supreme Court of Idaho

June 13, 1902

WATER RIGHTS-CHANGE OF POINT OF DIVERSION.-Where the point of diversion of water is fixed by decree, and thereafter in another suit wherein the parties to the first decree are parties, with many others, and in the latter suit the water awarded to the parties to the first decree is scaled down and the point of diversion thereof is not changed, such point cannot be changed if others are injured thereby.

(Syllabus by the court.)

APPEAL from District Court, Elmore County.

Reversed and remanded, with instructions. Costs awarded to appellants.

W. C Howie, for Appellant.

The facts are fully stated in the opinion. One, after he has diverted water, may use a part of a channel of a stream to convey his water to his land, and in doing so may mingle it with other water and take his water out again, but it is his water from the time he first diverts it and brings it under his control, and in taking it out the second time he is only recovering, as it were, his water, and in doing so he must not in any way interfere with other rights. (Kinney on Irrigation, secs. 246, 247.)

N. M Ruick, for Respondent.

Cites no authorities on the point decided by the court.

SULLIVAN, J. Quarles, C. J., concurs. Stockslager, J., took no part in this decision.

OPINION

SULLIVAN, J.

This action was brought to enjoin the defendant from changing his point of diversion of certain water decreed to him by the district court from Cold Springs creek, Elmore county.

The complaint alleges that plaintiffs are the owners of six hundred acres of land lying along and upon said creek: One tract of one hundred and sixty acres, known as the "McAnulty" or "Stanfield-McAnulty" tract; one of three hundred and twenty acres, known as the "Cold Springs Ranch"; and one of one hundred and twenty acres, known as the "Stanfield Desert." That defendant owns eight hundred acres of land lying along and upon said creek below plaintiffs' said land; one tract of one hundred and sixty acres, known as the "McGinness Homestead"; one of two hundred acres, known as the "McGinness Desert"; one of one hundred and sixty acres, known as the "Delano" tract; one of one hundred and sixty acres, known as the "McGinniss-McAnulty" tract; and one of the one hundred and twenty acres, known as the "William McGinness Horsehead Ranch." The latter tract, however, is not involved in this controversy, as it is not claimed that defendant has changed his point of diversion as to that tract. Other people own ranches lying along and upon said creek, and irrigate the same therefrom--some between the lands of plaintiffs and defendant, and others below the land of defendant.

In 1889, the defendant, and others using water from said creek, brought suit, in the district court of said county, to enjoin one S. A. McAnulty (who was then the owner of these appellants' "McAnulty" tract of one hundred and sixty acres above referred to) and some other users of water from said creek, from diverting the same therefrom. Afterward, in 1890, an amended complaint was filed in said action, in which all of the plaintiffs mentioned in the original complaint were dropped but said Daniel McGinness.

Said S A. McAnulty answered, setting up ownership to the said McAnulty one hundred and sixty acre tract of land, and the right to the use of water therefor from said creek. In that suit McGinness alleged ownership of but the first four of his tracts above described. In the month of August, 1891, judgment was entered in said cause, awarding to McGinness nine hundred inches of the waters of said creek; said decree designating the point of diversion for said nine hundred inches of water as "the head of plaintiff's big or main ditch, which commences near the mouth of the canyon on said creek, above the said lands of plaintiff, and about three hundred yards below his original water location made in 1873 or 1874." It is from this point that plaintiffs herein contend that defendant, McGinness, has changed his point of diversion, to a point about two miles below on said stream, to their injury. Only the three hundred and twenty acres of land owned by plaintiffs, and known as the "Stanfield-McAnulty" tract, is affected by said decree. In November, 1894, said McAnulty sold said three hundred and twenty acre tract, with his water right, to J. B. Stanfield, and thereafter an action was begun by the said Daniel McGinness and others against J. B. Stanfield and many others, to determine the priorities of rights to the use of the waters of said creek. Said McGinness then owned said four first tracts of land above referred to as belonging to him, and said Stanfield then owned all of the lands now owned by plaintiffs except a right, as heirs, in the land described above, as the "Elizabeth Walker" or "Walker Estate" land, which land is not involved in this action. A judgment was entered in the last-mentioned case in 1898, and a modified judgment was entered therein in May, 1899. By the final decree, the defendant in the action at bar (Daniel McGinness) was awarded four hundred and thirty-six inches of water from said creek, and J. B. Stanfield three hundred and sixty-eight inches of water. The said Walker estate lands were awarded the first right on said creek. The order of priorities, as stated in said decree, between defendant, Daniel McGinness and said J. B. Stanfield, was as follows, to wit: First, McGinness, fifty-eight inches; second, Stanfield, one hundred and thirty-six inches; third, McGinness, three hundred and twenty-eight inches; fourth, Stanfield, twenty-seven inches; fifth, McGinness, fifty inches; sixth, Stanfield, two hundred and five inches. Other parties to said suit were awarded water in different amounts, and from different dates. Said decree also provided that said awards of water should be subject to the decree in the McGinness-McAnulty suit, which is referred to above as being entered on the tenth day of August, 1891; and that proviso or clause threw the awards of water to Stanfield behind or later than the awards to McGinness, except the one hundred and thirty-six inches first awarded to Stanfield. The last decree did not specify where the water awarded was to be diverted from said stream, nor where measured, further than to declare that it must be measured at the point where diverted from the creek; and it also continued the orders of injunction. The McGinness big or main ditch mentioned in the decree of August 10, 1891, and as being the point of diversion of the nine hundred inches of water awarded to McGinness, is a large ditch taken out of said creek about two miles above respondent's land, at or near the mouth of a canyon. Said ditch extends from near the mouth of said canyon down nearly to respondent's land, and there empties the water back into the channel of the creek, and the water so turned in runs a short distance in said channel, and is then taken out in a short ditch, and then turned back into said channel again, and then taken out of the channel a third time, a short distance above defendant's land. It appears that the first water master was appointed, for the distribution of the waters of said creek, in 1898, and that a water master has been appointed each year since. In 1898, a weir for measuring the nine hundred inches of water awarded to McGinness was placed at the head of said big ditch, at the mouth of said canyon, and remained there until the spring of 1900, when McGinness put in a new weir where the ditch enters his land, and measured the water decreed to him at that point, instead of two miles above at the head of said big ditch. Appellants claimed that they were injured by said change of the point of diversion, and demanded of...