Youngs v. Regan

• Decision Date: 29 September 1911
• Citation: 118 P. 499,20 Idaho 275
• Parties: EMMA C. YOUNGS, Appellant, v. DANIEL REGAN, Respondent
• Court: Idaho Supreme Court

118 P. 499

20 Idaho 275

EMMA C. YOUNGS, Appellant, v. DANIEL REGAN, Respondent

Supreme Court of Idaho

September 29, 1911

WATER RIGHTS-SPRING-ARTESIAN WELL-APPROPRIATION OF WATER-PERMIT-STATE ENGINEER-PRIOR APPROPRIATION.

(Syllabus by the court.)

1. Where one enters land under the desert land laws of Congress on which is situated a spring and an artesian well, which well was constructed prior to the entry of such land for the purpose of increasing the flow of the water, and the water was used for watering stock, and the one who made the well thereafter sold his interest in said well to the entryman and she made application of the water to the desert land so entered by her for growing crops thereon, held, that her appropriation is as valid as though she had made application to the state engineer for a permit to appropriate the same.

2. The state engineer has no power or authority to interfere with vested rights or to grant a permit for the appropriation and diversion of water where the same has already been appropriated and applied to a beneficial use.

APPEAL from the District Court of the Fourth Judicial District for Twin Falls County. Hon. Edward A. Walters, Judge.

Action to quiet title to certain water. Judgment for defendant. Reversed.

Reversed and remanded. Costs awarded in favor of appellant.

J. C Rogers, for Appellant.

The only restriction placed upon the use of water under the constitution and laws of this state seems to be the solitary one that the use must be beneficial, and that water appropriated and applied to a certain beneficial use can thereafter be taken and applied to any other use whatever, providing the same be a beneficial use. (Davis v. Gale, 32 Cal. 26, 91 Am. Dec. 554, 4 Morr. Min. Rep. 604.)

Longley & Hazel, for Respondent.

The defendant, proceeding strictly under the laws of the state in an effort to use the unappropriated water of the state, was clearly within his rights, and nothing this plaintiff could do after the issuance of a water permit could in any way change or lessen defendant's right thereunder. (Neilson v. Parker, 19 Idaho 727, 115 P. 488.)

SULLIVAN, J. Stewart, C. J., and Ailshie, J., concur.

OPINION

SULLIVAN, J.

This is an action brought by the appellant, who was plaintiff, to restrain the respondent, who was defendant, from diverting water from the lands of appellant and from an order made and entered therein overruling appellant's motion for a new trial.

The appellant in her amended complaint alleges that she and her grantors and predecessors in interest, for more than ten years prior to the time of the commencement of this action, were the owners, in the possession of, and entitled to the possession of, the tract of land described in said complaint, and the right to use for the irrigation of the same the entire flow of the waters of a certain spring called "Little Wild Horse Spring" or "Pipe Spring," and also to two certain artesian wells situated near said spring, and upon said land, and that she, through her grantors and predecessors in interest, had, during a period of more than ten years prior to the commencement of said action, used the flow of said spring and one of the wells; that in the month of June, 1909, the respondent, without her consent and against her will, interfered and interrupted her use of such waters, broke her dams and ditches and proceeded to construct dams and ditches of his own on the grounds of appellant, and thereby diverted the water away from her land, and respondent threatens to continue to do so. Appellant prays for judgment restraining defendant from interfering with said water.

In his answer the respondent denies that appellant owns said land or the right to the use of said water; denies that she is the owner or appropriator of said Little Wild Horse or Pipe Spring, or the said artesian wells; denies that she ever used said water for the irrigation of said land or for stock or domestic purposes; admits that he constructed on appellant's said land dams and devices for the diversion of said water and diverted the same from appellant's land to and upon his own land, and seeks to justify himself for so doing under and by virtue of a permit issued from the state engineer's office to one T. J. Woods, bearing the No. 2477; admits his intention to continue said diversion. Respondent also filed a cross-complaint, setting up his ownership of certain lands situated about a half mile from said spring, and alleges that he is the owner of a certain permit from the state engineer's office, it being the one issued to said Woods, authorizing him to enter upon appellant's premises to construct works for the diversion of water therefrom, the same bearing date of December 29, 1906. All of the allegations of the cross-complaint were denied.

Upon the issues thus framed the case was tried to the court without a jury and resulted in a judgment in favor of the respondent.

The following facts appear from the record: In the year 1896, A D. Norton, who was then engaged in the business of cattle raising in the vicinity of said spring and who was running large herds of stock on the range in that vicinity, for the purpose of obtaining more water than the spring produced,...