Ward v. Kidd

• Decision Date: 05 May 1964
• Docket Number: 9346,Nos. 9337,s. 9337
• Citation: 87 Idaho 216,392 P.2d 183
• Parties: Wesley WARD, Robert Ward and Chester Bullers, Plaintiffs-Respondents, v. Garnet KIDD, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 183

392 P.2d 183

87 Idaho 216

Wesley WARD, Robert Ward and Chester Bullers, Plaintiffs-Respondents, v. Garnet KIDD, Defendant-Appellant.

Nos. 9337, 9346.

Supreme Court of Idaho.

May 5, 1964.

James Annest, Burley, for appellant.

Herman E. Bedke, Burley, for respondents.

TAYLOR, Justice.

On June 25, 1959, the defendant (appellant) constructed a dam in the channel of Granite creek, upon land owned by him, to wit: the South half of Section 36, Township 16 South, Range 23 E.B.M., in Cassia county. This dam was located upstream from the diversion works and ditch of plaintiff (respondent) Bullers. Defendant's avowed purpose in constructing the dam was to impound water for the use of livestock grazing upon his land, late in the season when the flow of the creek might not be sufficient for that purpose. The dam was constructed by means of a caterpillar tractor with attached blade. A basin was scooped out on the upper side, the soil removed being pushed up to form the dam, which when completed was approximately eleven feet high. A ditch or spillway was constructed around one end of the dam to carry the overflow back to the channel of the creek below.

Plaintiffs (respondents), claiming prior rights in the flow of the creek, on June 30, 1959, went upon defendant's premises and by means of a caterpillar tractor with blade, opened the dam down to the level of the creek bed and permitted most of the impounded water to flow down its natural channel. A small pond remained in the area scooped out in construction of the dam. Plaintiffs thereafter brought this action and procured a judgment dated December 20, 1962, establishing their respective prior rights and enjoining defendant and 'from in any way interfering with or obstructing the flow of Granite Creek * * * above Bullers' point of diversion that will impede, restrict or interfere with the water rights of the plaintiffs.'

Defendant reconstructed the dam about the middle of June, 1961, after obtaining a permit from the state reclamation engineer authorizing the construction of such a dam for stock water purposes, to store and appropriate 'public waters of the state.' This second dam was destroyed sometime in November, 1962. December 20, 1962, defendant again reconstructed the dam.

He testified in the contempt proceeding, which was commenced against him in February, 1963, that at the time he reconstructed the dam on December 20, 1962, he was not aware that the judgment dated December 20, 1962, had been rendered, although he knew the judge had issued a memorandum opinion announcing that he would enter findings and judgment against defendant and in favor of the plaintiffs. Defendant further testified that he first learned on December 27, 1962, that the judgment had been entered, and that thereafter he had not removed the dam, and that he would not remove it unless he was ordered to do so.

At the conclusion of the hearing in the contempt proceeding the district judge announced that he could not hold defendant in contempt for having reconstructed the dam on December 20, 1962, in view of his testimony that he was unaward of the judgment of that date, but did find him in contempt of court for having failed to remove the dam and the obstruction thereby created. By order dated March 19, 1963, the court found defendant in contempt 'in that the said defendant placed a dam in Granite Creek and maintained the same in such a manner as to interfere with the flow of Granite Creek and the water rights of the plaintiffs.' By its order the court imposed a fine of $500.00, and the additional sum of $50.00 for each day the obstruction remained in the channel of the creek after March 22, 1963, and provided that the defendant could purge himself of such contempt, and fine, by paying $250.00 as attorney's fees and costs to the plaintiffs, and removing the dam and obstruction on or before March 22, 1963.

Defendant appealed from the judgment and brought proceedings in this court for review of the contempt proceeding and the judgment therein. Review was granted and the two causes were consolidated in this court for hearing and disposition.

The plaintiffs Wesley Ward and Robert Ward were the beneficial owners, under a contract to purchase, of the North half of Section 36, bordering defendant's property on the north. Plaintiff Chester Bullers was the owner of property lying north and east of Section 36, in Sections 30, 31 and 32. All of the property of the parties concerned herein was located in Township 16 South, Range 23 E.B.M. Plaintiff Bullers also owned State of Idaho license and certificate of water right No. 19283 issued by the state reclamation engineer February 26, 1945, confirming his right with priority of May 31, 1942, to the use of 1.44 cu. feet per second of the water of Granite creek for the purpose of irrigation upon the land referred to. Bullers' predecessor had constructed a diversion dam in the channel of Granite creek upon the land subsequently purchased by the defendant, and a short distance below the point where defendant constructed his dam, and also a ditch which led from the point of diversion to the Bullers' land, a distance of more than one-half mile. Mr. Bullers did not know the date the ditch was constructed, but testified he had been using it, and had been irrigating portions of his lands with water conveyed through it, for 18 or 20 years. He had also used the water conveyed by the ditch to his premises for stock watering purposes.

The North half of Section 36 had been purchased by Wards' predecessors about 1950 and Wards acquired it in 1958; they and their predecessors had used the land for grazing sheep or cattle each year subsequent to 1950.

Defendant does not challenge Bullers' water right. He contends that the Wards have acquired no right in the water of Granite creek, since they were not riparian proprietors, and could not obtain a right by watering their livestock from Bullers' ditch. Defendant asserts that his purpose, and his lawful right, in constructing the dam and reservoir was to impound public unappropriated water; that is, winter flow, early spring runoff, and low water when the flow of the creek was insufficient to reach Bullers' place of use; and that the dam as constructed did not interfere with Bullers' water right. He also claims to have developed new water in the course of construction, in that a seepage flow was uncovered by the bulldozer in scooping out the basin above the dam.

The court found that Granite creek is fed by melting snow, rain and small springs upon lands above defendant's property; that in early spring the creek flow increases, reaching its peak usually in May, and by the first of July the stream starts to recede in the daytime, but the flow returns during the nighttime; that in some years the flow of the creek dries up to a point just above the location of defendant's dam, except when summer rains increase 'the flow so that the same can be, and is, put to a beneficial use on the lands of the plaintiff Bullers'; that in the fall the flow increases and at times reaches Bullers' lands and is there applied to beneficial use during the winter months; that Bullers' diversion works were of a permanent nature and so constructed as to divert all of the flow of the creek, up to the capacity of the ditch, 'the year round and had continued in such manner for more than 10 years'; 'That the plaintiffs, Ward, and their predecessors in interest, for more than 5 years had watered livestock from the Bullers' ditch in the Wards' field when there was sufficient water in Granite Creek to reach Wards' fields.'

The court further found:

'6. That on or about the 25th of June, 1959, defendant constructed in the channel of Granite Creek on his premises and upstream from the Bullers' point of diversion, a dam and reservoir in such a manner that the same would obstruct the flow of Granite Creek at the time of construction and at all other times subsequent thereto.

'7. That at the time the said reservoir and dam, which was approximately eleven (11) feet high, were constructed by the defendant, water was flowing in the main channel down to the diversion ditch of the plaintiff, Bullers, approximately 350 yards below the dam and from that point, at least during the night time, the water flowed in the diversion ditch through the field owned by Wards to the land of the plaintiff, Chester Bullers; and in the heat of the day a lesser amount of water flowed below the Bullers' point of diversion, and the defendant, Kidd, by the construction of the dam impounded all of the water that was then flowing in Granite Creek thereby depriving the plaintiffs, Ward and Bullers of all of the said water.'

'9. That the defendant, Kidd, in the construction of the dam and reservoir did not develop any new water but the water uncovered was actually a seep and part of the water flow of Granite Creek.'

That plaintiffs' removal of the obstruction occasioned by defendant's dam caused defendant no damage; that the removal cost plaintiffs $20.00;

'13. That the acts of the defendant, Kidd, in building the dam was intentional, unlawful, malicious and without the consent and approval of plaintiffs thereby giving the plaintiffs right to punitive damages in the sum of $1.00.'

From the foregoing facts the court concluded:

'1. That the plaintiff, Bullers, is entitled to the year round unobstructed flow of Granite Creek for irrigation and domestic purposes up to 1.44 cubic feet per second which said water is appurtenant to the [Bullers' land]. * * *

'2. That the plaintiffs, Ward, have acquired and now own a right to have the water proceed through the diversion ditch through their field, above described, for domestic use of watering livestock to the extent of Bullers' appropriation and water license.

'3. That the defendant, Kidd, has no right to impound, or in any manner obstruct the flow of Granite Creek that will interfere with the flow of 1.44 cubic feet of water...