Washington County Irrigation District v. Talboy, 6009

• Decision Date: 12 March 1935
• Docket Number: 6009
• Parties: WASHINGTON COUNTY IRRIGATION DISTRICT, Appellant, v. W. E. TALBOY, Water Master of Water District No. 41 of the State of Idaho; THE WEISER IRRIGATION DISTRICT, a Municipal Corporation, and the CRANE CREEK RESERVOIR ADMINISTRATION BOARD, an Association Composed of Five Members, One Elected by the Said Weiser Irrigation District, One Elected by the West Idaho Power Company, a Corporation, One Elected by the Weiser Bench Irrigation Company, a Corporation, and Two Elected by the Washington County Irrigation District, Respondents
• Court: Idaho Supreme Court

43 P.2d 943

55 Idaho 382

WASHINGTON COUNTY IRRIGATION DISTRICT, Appellant,
v.
W. E. TALBOY, Water Master of Water District No. 41 of the State of Idaho; THE WEISER IRRIGATION DISTRICT, a Municipal Corporation, and the CRANE CREEK RESERVOIR ADMINISTRATION BOARD, an Association Composed of Five Members, One Elected by the Said Weiser Irrigation District, One Elected by the West Idaho Power Company, a Corporation, One Elected by the Weiser Bench Irrigation Company, a Corporation, and Two Elected by the Washington County Irrigation District, Respondents

No. 6009

Supreme Court of Idaho

March 12, 1935

WATER AND WATERCOURSES-PUBLIC WATERS-DIVERSION FROM NATURAL STREAM-IMPOUNDED FLOOD WATER-STORAGE WATER-RIGHTS AND DUTIES OF OWNER-TENANCY IN COMMON-INTEREST, RIGHTS AND LIABILITIES OF TENANT IN COMMON-ABANDONMENT-PRESUMPTION-ACTION BETWEEN TENANTS IN COMMON.

1. Water which was diverted from natural stream and stored in reservoir was no longer "public water" but became property of appropriators and owners of reservoir, impressed with public trust to apply it to beneficial use, and subsequent appropriator claiming part or all such water would be only person who could question lack, extent or nature of its application to beneficial use (Const., art. 15, secs. 1-3).

2. If water impounded is mere collection of flood water from rains and melting snow and does not actually comprise or enter any natural stream or body of water, then it is unqualified private property of owners of reservoir, who may do with water as they see fit (Const., art. 15, secs. 1-3).

3. Appropriation cannot be made from reservoir or canal, since waters so stored or conveyed are already diverted and appropriated and are no longer "public waters," but reservoir or canal owner may not waste water or withhold it from persons who make application to rent it (Const., art. 15, secs. 1-3).

4. If owner of reservoir owns land subject to irrigation from such reservoir, he may apply it to his own land or sell it to others, [55 Idaho 383] or both, according to priorities of their applications (Const., art. 15, secs. 1-3).

5. As respects right of irrigation district to recover damages from other districts for diversion of unused stored water in reservoir, districts which were not using water on their own land but who were distributing appropriations to land owners and collecting rent therefor were cotenants (I. C. A., secs. 54-104, 54-508; Const., art. 15, secs. 1-3).

6. Tenant in common is entitled to use, benefit and possession of common property provided he does not exclude his cotenant from like use, occupancy and benefit (I. C. A., secs. 54-104, 54-508).

7. Where cotenant leases or lets property for profit, he must account to his cotenant (I. C. A., secs. 54-104, 54-508).

8. Mere statements arguendo made by writer of opinion cannot be taken as modification of rule of law not involved in case.

9. Irrigation district held not precluded from recovering damages for diversion of stored water from reservoir on ground that district abandoned its water right, where water was actually diverted from natural stream and impounded in reservoir, and no other appropriator was contesting right of reservoir owners to divert and impound water (Const., art. 15, secs. 1-3).

10. Law presumes that possession of one cotenant is possession of all cotenants, and no presumption of abandonment arises (I. C. A., secs. 54-104, 54-508).

11. In irrigation district's action for damages for diversion of water from reservoir, trial court's conclusion that, because of district's failure to make proof of application of water to beneficial use, it lost all rights acquired under water right locations except to extent of amount delivered held erroneous, where district's right to water was not being contested by any other appropriator or by state (Const., art. 15, secs. 1-3).

12. In irrigation district's action for damages for diversion of water from reservoir by co-owner, co-owner could not profit by failure of district to make final proof of completion of diversion works or take from reservoir district's share of water and distribute it to its consumers where co-owner made its proof of completion of diversion works for its share of water and same diversion works impounded water belonging to all parties (I. C. A., secs. 54-104, 54-508; Const., art. 15, secs. 1-3).

13. In irrigation district's action against co-owner for diversion of unused waters from reservoir, co-owner held estopped to set up provision of contract that waters reserved to district's grantors [55 Idaho 384] should be appurtenant to lands and to be used only for irrigation of lands and domestic and stock use thereon, where co-owner took same water and distributed it to its water users outside of district (I. C. A., secs. 54-104, 54-508; Const., art. 15, secs. 1-3).

APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. John C. Rice, Judge.

Action by plaintiff against W. E. Talboy, water master, and Weiser Irrigation District et al. for damages. From a judgment for defendants, plaintiff appeals. Reversed and remanded for new trial.

Reversed and remanded. Costs awarded to appellant. Petition for rehearing denied.

George Donart, Edwin Snow and J. W. Galloway, for Appellant.

Waters conserved or augmented belong to the conserver, free from the claims of strangers. Waters stored in reservoirs are such. ( Reno v. Richards, 32 Idaho 1, 178 P. 81; Farnham on Waters, sec. 462; Hesperia Land & Water Co. v. Gardner, 4 Cal.App. 357, 88 P. 286; Parks Canal & Min. Co. v. Hoyt, 57 Cal. 44.)

The provision in the governing contract restricting plaintiff's storage water to use on its own lands is a covenant and not a condition. (15 C. J. 1217; LeShonse v. Herrick, 39 Idaho 67, 225 P. 1019; Harris v. Reed, 21 Idaho 364, 121 P. 780.)

Ed. R. Coulter and Frank T. Wyman, for Respondents.

All the waters of the state, when flowing in their natural channels, including the waters of all natural springs and lakes within the boundaries of the state, are declared to be the property of the state. (Sec. 41-101, I. C. A.; Const., art. 15, sec. 1; Walbridge v. Robinson, 22 Idaho 236, 125 P. 812, 43 L. R. A., N. S., 240.)

The holder of a water right does not own any waters if the water is to be used for irrigation. His right is limited to the use of so much thereof as is necessarily required for the economical irrigation of his lands. (Sec. 41-101, I. C. A.; Coulson v. Aberdeen-Springfield Canal Co., 39 Idaho 320, 227 P. 29; Kinney on Irrigation, p. 1547; Barrows v. Fox, 98 Cal. 63, 32 P. 811; Bennett v. Twin Falls etc. Co., 27 Idaho 643, 150 P. 336.)

Storage of water is not a use. It is only a means to an end. (Kinney on Irrigation, vol. 2, p. 1480, sec. 877; Farmers Highline Canal & R. Co. v. Southworth, 13 Colo. 111, 21 P. 1028, 4 L. R. A. 767.)

A water right is real estate (secs. 54-101, 54-102, I. C. A.; Ada County F. Irr. Co. v. Farmers' Canal Co., 5 Idaho 793, 51 P. 990, 40 L. R. A. 485; Nelson Bennett Co. v. Twin Falls L. & W. Co., 14 Idaho 5, 93 P. 789).

Water impounded in a reservoir is real estate and not personal property. (Spring Valley Water Works v. Schotler, 110 U.S. 347, 4 S.Ct. 48, 28 L.Ed. 173.)

The parties in interest in this case are cotenants in this reservoir and water impounded therein, and their rights are determined by the law of cotenancy. (Secs. 54-104, 54-508, I. C. A.; Powell v. Powell, 22 Idaho 531...