Wilterding v. Green

• Citation: 4 Idaho 773,45 P. 134
• Parties: WILTERDING v. GREEN
• Decision Date: 01 May 1896
• Court: United States State Supreme Court of Idaho

45 P. 134

4 Idaho 773

WILTERDING v. GREEN

Supreme Court of Idaho

May 1, 1896

IRRIGATION-APPROPRIATION OF WATER.-Under the constitution and statutes of Idaho, the waters of the state are subject to appropriation for rental sale, or distribution.

SAME-WHEN A PUBLIC USE.-When so appropriated and taken out, the said waters become a public use and are dedicated to the public.

SAME-CANALS AND DITCH RIGHTS.-The owners of canals and ditches are entitled to reasonable compensation for appropriating and delivering said water.

LANDS UNDER DITCHES ENTITLED TO USE OF WATER-COMPENSATION TO DITCH OWNERS.-Those owning or controlling lands under said ditches or canals are entitled to the use of waters therein upon paying or tendering to the owners of such canals a reasonable compensation for such use; and when such waters are so used for one year, or a term of years, the right to such use becomes perpetual, unless limited by contract.

DISTRICT COURT TO DETERMINE COMPENSATION FOR USE OF WATER.-The district court is authorized by the statute to determine under all circumstances, what is a reasonable compensation and what are reasonable terms for the use of water, either annually, or for a term of years.

WHEN MANDAMUS WILL LIE.-The law giving a plain, speedy and adequate remedy in this case mandamus does not lie until a rate is fixed.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Reversed and remanded with directions.

W. E Borah and Hawley & Puckett, for Appellant.

This is an action commenced by plaintiff, praying for the issuance of a writ of mandate directed to defendant commanding him to allow the plaintiff sufficient water from canals under defendant's control to irrigate during the year 1896 certain lands belonging to plaintiff lying under such canals. Defendant and his predecessors have, since the spring of 1891, rented a large portion of the waters at one dollar and fifty cents an acre per annum, and has announced his intention to rent the waters of said canal at such rate for the year 1896. That prior to January, 1896, defendant made and established rules and regulations requiring written applications to be made by all consumers of water from said canal at said rate, such application to be made between January 1st and April 10th of each year, together with the execution of a written agreement between defendant and applicant for the use of the said water, and that no person can secure water from said canal without making said application and making said agreement. That on January 13th plaintiff made application in writing, in accordance with said rules, for water for said lands, to defendant, and tendered sixty dollars in payment thereof. Defendant refused to consider plaintiff's application or receive said money, and notified plaintiff that he would not furnish him any water for the reason that he had not heretofore irrigated or cultivated any portion of his land from the waters of said canal, and that defendant had adopted a new and additional rule and regulation, and would not sell or rent any waters of said canal for use upon any lands which had not been irrigated therefrom prior to January 1, 1896, unless the applicant first paid ten dollars an acre to defendant for a perpetual water right for the use of the land desired to be irrigated; and that he would not furnish plaintiff any water unless he so complied with said new rule and regulation, and that if he did so comply then defendant would furnish water for said land at the annual rental or maintenance rate of one dollar per acre for the land actually irrigated. We contend that the statute of 1895, entitled "Irrigation and Water Rights," Laws of Third Session, page 174, does not apply to the case in controversy, and that the court below had no jurisdiction to determine this cause. An inquiry into the effect of the law of 1895 upon this case will compel a consideration of the constitutional provisions, and the statutory enactments bearing upon the appropriation of water in this state, and the right of the legislature to regulate water rates, where the right to the use of the water had been acquired prior to the adoption of the constitution of this state. Eminent domain is an inherent element of sovereignty and the power to exercise it being vested in the state, it can be exercised whenever necessary to enable a public use to be carried into effect, under such regulations as the legislature may prescribe. This naturally raises the inquiry, What is a public use? Although some courts speak of it as an unsettled question, we will admit that it is a convertible term with "public benefit," and that all uses productive of general benefit are public uses. (Olmstead v. Comp, 33 Conn. 532, 89 Am. Dec. 221; Aldridge v. Tuscumbia etc. R. R. Co., 2 Stew. & P. 199, 23 Am. Dec. 307.) The framers of our constitution undoubtedly had the right to declare therein certain uses to be public uses, and having seen fit to make the declaration, it settles the matter so far as the particular use is concerned. (Const., art. 1, sec. 14; art. 15, secs. 1-6.) Section 2 of article 15 declares the right to collect compensation for the use of water is a franchise which cannot be exercised except by authority of and in the manner prescribed by law. "Franchises are special privileges conferred by government upon individuals, and which do not belong to the citizens of the country generally by common right." (Bank of Augusta v. Earle, 13 Pet. 395; U.S. Rev. Stats., secs. 2339, 2340; Basey v. Gallagher, 20 Wall. 670.) It has been held by the highest courts of every state and territory in the arid regions that the first appropriator of the waters of a stream obtains the right to the use and enjoyment of the waters to the extent of his original appropriation. Not only are rights so acquired vested rights, but they have been recognized as real property, and are so recognized by the constitutional provision heretofore cited of this state. (Gould on Water Rights, 234; Pomeroy on Riparian Rights, 58; Strickler v. Colorado Springs, 16 Colo. 61, 25 Am. St. Rep. 245, 26 P. 313.) The right to collect pay for water, under the constitution, is a mere franchise to be given by subsequent statutory enactment to those persons and companies who might acquire right to the use of water after the admission of the state, but could not apply to those whose vested rights had accrued prior to the adoption of the constitution. There can be no question but what the ditch company owns the water which it has appropriated; it is its property. Whenever water is appropriated for a beneficial use, it then becomes the property of the appropriator. This is evident from the provisions of our constitution and the law of 1895, which recognizes the right to appropriate water not only for the purpose of rental, but also for the purpose of sale, giving to the appropriator the exclusive ownership of the water appropriated. (Idaho Const., art. 15, secs. 1-4; Strickler v. Colorado Springs, 16 Colo. 61, 25 Am. St. Rep. 245, 26 P. 313; Wyatt v. Irrigation Co., 1 Colo. App. 480, 29 P. 906; Dalton v. Bowker, 9 Nev. 190-201; Parks Canal Co. v. Hoyt, 57 Cal. 44; Coffin v. Ditch Co., 6 Colo. 443.)

Fremont Wood, George H. Stewart, and J. R. Wester, for Respondent.

The case made by the pleadings is this: 1. The defendant is the owner of a large irrigating canal which has been constructed for a distance of fifty to seventy-five miles, and has furnished waters for lands the whole length thereof for four irrigating seasons. 2. The companies enlarging the canal to its present capacity were organized, among other things, for the purpose of selling, renting and distributing the waters of this canal to the land owners thereunder. 3. That the defendant, before demand in this case, had fixed the annual rental rate for the coming season at one dollar and fifty cents per acre to those who had theretofore used the waters of his canal. 4. Defendant still has a large surplus of unappropriated, unapplied and undedicated water flowing through his canal. 5. The plaintiff, a land owner thereunder makes a demand and tenders to the defendant the annual rental rate, fixed by him for all lands upon which waters of the canal had been theretofore used. 6. The defendant rejects his application, refuses his tender, declines to accept his application, or make any contract with him as required by his own (defendant's) regulations, and demands that he first purchase from him a perpetual water right for which he must pay ten dollars per acre, in consideration of which the annual maintenance will be reduced from one dollar and fifty cents, the rate charged former consumers, to one dollar per acre. Under article 1, section 15 of the constitution, there can be no question about the character of the use so far as applied to the waters of this canal. Since the adoption of the constitution there has been no legislation under these constitutional provisions until the legislation of the last session of the legislature. (Act of March 7, 1895, p. 174.) Though the water appropriation was made under the laws of the territory, and both of the corporations which enlarged and extended the canal were incorporated before the adoption of the constitution, yet the fact remains that the appropriation was made for a public use. (11 Ter. Sess., p. 267; Rev. Stats., secs. 3189, 3190.) Those rights could all be made subject to the regulation and control of the state by applying them to a public use. The moment private property is applied by the owner to a public use, that moment the same becomes subject to regulation and control by the state. (Munn v. People etc., 94 U.S. 113.) The question of "eminent domain," discussed by counsel, has no application to the case in controversy. There were...