Zezi v. Exta Lightfoot

• Decision Date: 06 May 1937
• Docket Number: 6343
• Citation: 57 Idaho 707,68 P.2d 50
• Parties: GEORGE ZEZI and A. E. ANDERSON, Respondents, v. EXTA LIGHTFOOT, JOHN WILLIAMS, T. J. MCDANIEL and A. E. COX, Appellants
• Court: Idaho Supreme Court

68 P.2d 50

57 Idaho 707

GEORGE ZEZI and A. E. ANDERSON, Respondents, v. EXTA LIGHTFOOT, JOHN WILLIAMS, T. J. MCDANIEL and A. E. COX, Appellants

No. 6343

Supreme Court of Idaho

May 6, 1937

WATER AND WATERCOURSES - APPROPRIATION-ABANDONMENT-CHANGE OF PLACE OF USE-PERMISSIVE USE-EVIDENCE-BURDEN OF PROOF.

1. Alleged change of place of application or of use by water owners for a beneficial use prior to appropriation by others held not to inure to appropriators claiming that owner's water rights had been lost by abandonment. (I. C. A., sec 41-216.)

2. Appropriation of water for mining purposes is not invalidated by change from one kind of mining to another, or from one place to another. (Const., art. 15, sec. 3.)

3. Where maximum capacity of flume through which appropriators of water took their water in 1933 was 270 inches and appropriators in 1934 put in two pipes in addition to flume resulting in total carrying capacity of 500 inches, and filed application with reclamation department for permit which was approved June 6, 1934, appropriators were entitled to 230 inches with priority as of June 6, 1934.

4. Abandonments and forfeitures are not favored.

5. Forfeiture and abandonment by owners of water rights for mining purposes for statutory term of five years would not inure to benefit of appropriators, where, prior to appropriation, owners of water rights or their predecessors in interest under claim of right and continuity of interest rediverted and applied water for mining purposes. (I. C. A sec. 41-216.)

6. Permissive use by others of water rights for mining purposes inures to benefit of true owners thereof, or persons entitled to use, and prevents operation of statute dealing with abandonment. (I. C. A., sec. 41-216.)

7. Use of water for mining on property other than that of owners of water rights held not injurious to appropriators downstream where, had water been used on property of owners of water rights, there would have been no return to the stream.

8. In suit by appropriators of water rights for mining purposes to quiet title against owners of water rights for mining purposes upstream on ground that rights had been abandoned under statute, appropriators had burden of showing that third persons to whom owners had given permissive use of their water, used water other than that, the permissive use of which was given them by owners of water rights. (I. C. A., sec. 41-216.)

9. In suit by appropriators of water rights for mining purposes to quiet title against owners of water rights for mining purposes upstream on ground rights had been abandoned under statute, evidence held insufficient to sustain burden on appropriators to show that third persons, to whom owners had given permissive use of water, used water other than that, the permissive use of which was given to them by owners of water rights. (I. C. A., sec. 41-216.)

APPEAL from the District Court of the Third Judicial District, for Boise County. Hon. Chas. F. Koelsch, Judge.

Suit to quiet title to certain water, for damages, and for injunction. Judgment for plaintiff. Reversed in part and remanded.

Reversed and remanded with instructions. No damages awarded to respondents.

Edwin Snow and Maurice H. Greene, for Appellants.

Prior to the enactment of I. C. A., sec. 42-216, an abandonment of a water right could not occur except on proof of a voluntary relinquishment without intention to make further use of the same. (Joyce v. Murphy Land etc. Co., 35 Idaho 549, 208 P. 241; St. John Irr. Co. v. Danforth, 50 Idaho 513, 298 P. 365; Welch v. Garrett, 5 Idaho 639, 51 P. 405.)

The use of water for placer mining constitutes notice to subsequent appropriators that a change in the place of use is contemplated. (2 Kinney on Water Rights, sec. 1526.)

A change in the nature of the use of water may be made if the rights of others are not injured. (Davis v. Gale, 32 Cal. 26, 27, 91 Am. Dec. 554; Thomas v. Ball, 66 Mont. 161, 213 P. 597, 599; 67 C. J. 1031.)

The use of water for prospecting is a beneficial use, regardless of the monetary returns therefrom. (Madigan v. Kanganok Min. Co., 3 Alaska, 63.)

An intermittent use, without being coupled with an intent to abandon, is not sufficient to justify a court in holding an abandonment has taken place. (Union Grain & Elevator Co. v. McCammon, 41 Idaho 216, 240 P. 443.)

A change in the place of diversion does not constitute a forfeiture or abandonment of a water right. (Joyce v. Rubin, 23 Idaho 296, 130 P. 793; Bennett v. Nourse, 22 Idaho 249, 125 P. 1038.)

Thornton D. Wyman and Z. Reed Millar, for Respondents.

All water rights are lost and abandoned by a failure for five years to apply it to a beneficial use for which it was appropriated. (Sec. 41-216, I. C. A.; Chill v. Jarvis, 50 Idaho 531, 298 P. 373; Smith v. Hawkins, 110 Cal. 122, 42 P. 453.)

Abandonment of waters may require intent without statute but statutory nonuser for definite period of time prescribed by statute works a forfeiture regardless of intent. (Deseret Live Stock Co. v. Hooppiania, 66 Utah 25, 239 P. 479; Chill v. Jarvis, supra.)

A water right may be extinguished by any act showing an intent to surrender or abandon the right, after which, if the person having the right, ceases its use for the statutory period of abandonment, his interest is lost. (Pringle Falls Power Co. v. Patterson, 65 Ore. 474, 132 P. 527; Camp Carson Min. & P. Co. v. Stephenson, 84 Ore. 690, 165 P. 351.)

Where abandonment once has become effective the water is subject to appropriation again, and a later appropriator may acquire the right to it without claiming under the law of adverse possession. (Jackson v. Indian Creek etc. Irr. Co., 18 Idaho 513, 110 P. 251.)

GIVENS, J. Morgan, C. J., Holden and Budge, JJ., and Sutton, D. J., concur.

OPINION

GIVENS, J.

--Respondents claim an appropriation of 10 cubic feet per second or 500 inches of the waters of Grimes Creek, in Boise county, for placer mining purposes. Water was diverted and used by them on the "Theron" claims during July and the balance of the mining season in 1933, and until July, 1934. The water was conveyed through the channel of the "Mountain Ditch," an old placer mining ditch, cleaned out and repaired by respondents, and in connection with which they reconstructed a flume in 1933. This ditch extends in a generally southeasterly direction along a ridge north and somewhat parallel to the course of Grimes Creek.

Appellants claim a water right of 20 cubic feet or 1,000 inches of water from the same stream with a priority of January 12, 1905, with point of diversion approximately a mile and a half above that of respondents', and on the opposite side of the creek, conveyed through what is known as the "Noble Ditch," and originally to the Noble placer claims south of Grimes Creek.

July 9, 1934, appellants, Williams, McDaniel and Cox using what they claimed to be water of the "Noble" appropriation, through the Noble ditch on the Noble placer claims, diverted practically all of the flow of Grimes Creek into the ditch, thus shutting off respondents' supply, who thereupon and immediately thereafter in this action to have the court find and declare respondents' water right and priorities secured an injunction enjoining such interference.

The gist of the action is that the Noble water right, the basis of appellants' claim to the right to use the water and to interfere with respondents' use, was lost by abandonment, because either not used at all for a five year period or used for purposes other than the original purpose for which appropriated, or used in amounts so negligible as to amount to virtual nonuse or application to a beneficial purpose. The court found respondents had a water right as claimed by them, and:

"V.

"That all allegations of the Defendants' Answer, alleging ownership of any right, title or interest in or to the use of the waters of Grimes Creek through the Noble ditch are false and incorrect, and without any foundation in fact, and that the further allegations of defendants' affirmative defense alleged in Paragraph I, II, III, and VI, and those allegations in Paragraph V, referring to said claim of the use of the waters of Grimes Creek through said Noble Ditch claimed by Defendants are not true.

"VI.

"That the said Defendants, Lightfoot, Williams, McDaniel and Cox have no right, title or interest in and to said waters of Grimes Creek prior to said plaintiffs' right as aforesaid and as against said defendants, the plaintiffs' right is prior and superior.

"VII.

"That the said plaintiffs are the owner, and entitled to the beneficial use of ten (10) cubic feet per second of the waters of Grimes Creek as aforesaid, with a priority as of July 24, 1933, and that said defendants or either of them, have no right, title or interest in and to the use and possession of the same, prior to said plaintiffs."

The court also awarded respondents damages for their losses due to the discontinuance of their placer recoveries in 1934 because of appellants shutting off the water supply as above noted, and made the temporary injunction against appellants permanent.

Respondents contend that appellants had no right to change the place of application, or the kind of use of the Noble water from 1905 to 1932, i. e., from placering to prospecting, milling and fire protection, and that in so doing their original appropriation became lost. No change of place of application if for a beneficial use of the Noble water would inure to aid respondents prior to the time they made their appropriation in 1933, because not being appropriators during that time it was no concern of theirs excepting as it bears on the question of abandonment, where or how the water was diverted or where applied. (In...