Woodruff v. Butte And Market Lake Canal Co.

• Citation: 137 P.2d 325,64 Idaho 735
• Decision Date: 05 May 1943
• Docket Number: 7096
• Parties: JOHN P. WOODRUFF, LOFTUS SURERUS, WILLIAM H. POLSON, MELTON POLSON and CHARLES A. POLSON, Respondents, v. BUTTE AND MARKET LAKE CANAL COMPANY, a corporation, Appellant
• Court: United States State Supreme Court of Idaho

137 P.2d 325

64 Idaho 735

JOHN P. WOODRUFF, LOFTUS SURERUS, WILLIAM H. POLSON, MELTON POLSON and CHARLES A. POLSON, Respondents, v. BUTTE AND MARKET LAKE CANAL COMPANY, a corporation, Appellant

No. 7096

Supreme Court of Idaho

May 5, 1943

WATERS AND WATER COURSES-APPROPRIATION-PERMIT, CANCELLATION OF-EVIDENCE-BURDEN OF PROOF.

1. Where neither the Commissioner of Reclamation nor the District Court on appeal passed on particular protest against approval of completion of water diversion works, such protest was not before Supreme Court on further appeal.

2. In suit for cancellation of permit for appropriation of water contestants had burden of proof.

3. The party seeking affirmative relief has the burden of proof.

4. Where a District Court hears and determines case upon a record of proceedings before the Commissioner of Reclamation the Supreme Court is in as good position as the trial judge to find the facts established by the record.

5. Evidence did not warrant cancelling permit to complete water works appropriation on ground of failure to complete one-fifth of the work within time specified by the original permit.

Appeal from the District Court of the Ninth Judicial District of the State of Idaho, in and for the County of Jefferson. Hon. C J. Taylor, Judge.

Proceeding for the cancellation of a permit for the appropriation of water. Judgment for contestants adjudging cancellation. Reversed and remanded with directions.

Reversed and remanded with directions. Costs awarded to appellants.

Ralph L. Albaugh, Errol H. Hillman and John L. Bloem for appellant.

Where a trial is had to the court on the testimony and exhibits introduced before the Commission of Reclamation and the witnesses do not personally appear before the trial court, the Supreme Court of Idaho will examine and weigh the proofs de novo on appeal, and the rule that the Supreme Court will not disturb the judgment where there is a conflict in the evidence does not apply. (Idaho Power Co. v. City of Buhl, Idaho, 111 P.2d 1088 at p. 1089; John Hancock Mutual Life Ins. Co. v. Girard, 57 Idaho 198 at p. 202; Cannon v. Seyboldt, 55 Idaho 796 at p. 800; Roby v. Roby, 10 Idaho 139 at p. 142.)

The party asserting that the holder of a permit to appropriate water has failed to commence work within the time therein provided, or has failed to commence and complete one-fifth of the construction work within one-half of the time allowed for the entire completion of such construction work, or has not started the work promptly, has the burden of proof. (Idaho Power Co. v. City of Buhl, Idaho, 111 P.2d 1088 at p. 1091; Jaycox v. Varnum, 39 Idaho 78, at p. 92; Ramsay v. Gottsche, (Wyo.) 69 P.2d 535, at p. 539.)

Abandonments and forfeitures are not favored and one will not be held to have abandoner or forfeited a right except upon clear and satisfactory evidence. (Ramsay v. Gottsche, (Wyo.) 69 P.2d 535, at p. 539; Hurst v. Idaho Iowa L. & R. Co., 42 Idaho 436, at p. 442; Zezi v. Lightfoot, 57 Idaho 707, at p. 713.)

Otto E. McCutcheon for respondents.

If litigation of any nature prevents the commencement of the work, a permit holder is required to make a showing before the Department of Reclamation when, if holder is acting in good faith, an extension of time will be granted. (I. C. A., sec. 41-204; 2nd para, p. 361, 1935 Sess. Laws; 2nd para., p. 323, 1941 Sess. Laws.)

HOLDEN, C.J. Ailshie and Dunlap, JJ., concur, Budge, J., concurs in the conclusion, GIVENS, J. (Concurring specially.)

OPINION

HOLDEN, C.J.

The Butte and Market Lake Canal Company (hereinafter called the Company) irrigates approximately 20,000 acres of land in the vicinity of Roberts, in Jefferson County. Its decreed right was both late and insufficient. Notwithstanding the fact it yearly rented 15,000 acre feet in addition to its decreed rights, it was, and still is, in great need of additional water. For the purpose of obtaining additional water the Company made an application to the Commissioner of Reclamation (hereinafter called Commissioner) of the State of Idaho, to appropriate, divert and apply to a beneficial use 25 cubic feet per second of the waters of Roberts Slough. June 11, 1936, the Commissioner approved the application and issued permit No. 18282. The approval provided:

"work to begin on or before August 10, 1936, and to continue diligently and uninterruptedly to completion, unless temporarily interrupted by circumstances over which the permit holder has no control. One-fifth of the work above specified to be completed on or before December 11, 1938. The whole of said work to be completed on or before June 11, 1941."

The estimated cost of the diversion works was placed in the application at the sum of $ 500.00.

Many years before, the Dairy Farms Irrigation District (now defunct), apparently seeking to appropriate the waters of this slough, constructed a dike or levee across the channel near the river entrance and laid a large pipe through the levee at a point above the low water level of the river. At the time of the issuance of the above mentioned permit to the Company, high water, together with the action of the river, had washed part of the levee and about thirty feet of the pipe away. What this company, also seeking water, planned to do in order to obtain much needed additional water, was this: appropriate 25 cubic feet per second of the waters of the same slough, restore the levee, which it did, and then and upon the completion of its diversion works, exchange that water for a like amount of the waters of Snake River.

Following approval of the permit, A. W. Stibal, president of the company, immediately conferred with its attorney and Lynn Crandall, irrigation engineer and watermaster of District No. 36, in which Roberts Slough is located. Mr. Crandall informed appellant the levee (part of the diversion works) would have to be repaired and a gate put over the pipe to prevent water from reaching the slough.

Sometime after the issuance of permit No. 18282 to the Company, to-wit, May 22, 1940, the Commissioner approved the application of contestant John P. Woodruff to appropriate, divert and apply to beneficial use 20 cubic feet per second of the waters of Roberts Slough, and later and on June 7, 1940, the Commissioner approved another application of contestant Woodruff to appropriate, divert and apply to a beneficial use 3 cubic feet per second of the waters of that slough.

Shortly prior to May 29, 1941, the Company made application to the Commissioner to submit proof of the completion of works under permit No. 18282 theretofore issued to it, as aforesaid, pursuant to which the Commissioner "entered an order in his records requiring publication of notice of proof to be submitted before Ralph L. Albaugh, a Notary Public of the State of Idaho, at Idaho Falls, Idaho, on the 21st day of June, 1941, at 11 o'clock in the forenoon of said day," and accordingly the Company submitted proof and the proof was filed with the Commissioner. July 14, 1941, the Commissioner ordered that a hearing be had in the District Court room at the courthouse at Idaho Falls, Idaho, at 10:00 o'clock in the forenoon of July 22.

June 19, 1941, contestant Woodruff filed a protest with the Commissioner against the making of any order approving the completion of the works of the Company upon certain grounds hereinafter stated. June 29, 1941, William H. Polson, Melton Polson and Charles A. Polson also filed a protest with the Commissioner. That petition, however, is not before us on this appeal in that neither the Commissioner nor the District Court passed on the Polson petition. The above mentioned hearing, ordered by the Commissioner, as aforesaid, was had commencing July 22, 1941 at Idaho Falls, Idaho. September 11, 1941, the Commissioner rendered the following decision:

"After due consideration of all the facts involved, it is ordered that completion of works be and hereby is allowed to the Butte and Market Lake Canal Co. under permit No. 18282 in the capacity amount of sixteen and sixteenths (sic) (16.6) cubic feet per second."

November 7, 1941, an appeal from that decision was prosecuted to the District Court for Jefferson County.

April 15, 1942, it was stipulated by counsel for the respective parties the appeal from the Commissioner to the District Court should be considered and decided by that court on the record of the proceedings had before the Commissioner at Idaho Falls, Idaho, July 22, 1941. October 30, 1942, findings of fact and conclusions of law were made and filed and the following judgment entered thereon by the court:

"That the decision of the Department of Reclamation of the State of Idaho entered in said matter on or about the 11th day of September, 1941, be and it is hereby reversed and held for naught and a judgment and decree may be and it is hereby made and entered by this court cancelling permit No. 18282, which judgment the Department of Reclamation should make and enter on the records of its office."

The appeal to this court is from the judgment.

In limine, we point out that while the company made application to the Commissioner to submit proof of the completion of works under permit No. 18282, and that pursuant thereto the Commissioner ordered a hearing on that application, still and nevertheless the contestants (respondents here) in the proceeding so initiated, sought a cancellation of the permit in question on the grounds the Commissioner, in his approval, (a) required that work begin on or before August 10, 1936 and that it continue diligently and uninterruptedly to completion; (b) "that the said permit holder did not do any work at all until on or about the 27th of May, 1941;" (c) that the approval required "one-fifth of the work specified in the application...