164 P. 522 | Idaho | 1917
Lead Opinion
This action was instituted to quiet title to the waters of Dry Creek, in Custer county, and to restrain the defendant Sutcliffe, as water-master, from interfering with the rights of plaintiffs below,- appellants here. All of the appellants, except the Blaine County Irrigation Company, were farmers who had used water from said creek for many years for the irrigation of their lands. They .had diverted their water from said Dry Creek, across low land and gravel-bars, through a ditch known as “Farmers’ Ditch,” and discharged the same into Wet Creek at a point about a mile and a half distant from the place of diversion.
On July 6, 1907, the district court decreed these farmers to be entitled to the use of 22 second-feet of the waters of Dry Creek. About June 1, 1908, respondent Taylor located on Dry Creek and began to prepare his lands for cultivation. The same summer he constructed a ditch leading out of Dry Creek a short distance above the Farmers’ Ditch. On October 29, 1910, appellant Blaine County Irrigation Company made application for and received permit from the state engineer for 150 second-feet of the water from Dry Creek. This company began the construction of a pipe-line to divert water from the creek about seven miles above respondent’s point of diversion. In July, 1912, the pipe-line was completed and water diverted from Dry Creek into Corral Creek, a tributary of Wet Creek.
At this time the appellants who had used the Farmers’ Ditch, by agreement with the Blaine County Irrigation Company, changed their point of diversion to the intake of the pipe-line. By the terms of the agreement their water was thereafter to be diverted through the pipe-line, and thence, by way of Corral Creek and Wet Creek, to the place into which their water had formerly been discharged.
It is admitted that in point of time, the right of all appellants, excepting the Blaine County Irrigation Company, is superior to any right the respondents may have for domestic and culinary purposes, and that their right by reason of the application of the water to a beneficial use, and the decree of the district court, has become a vested right. It is clear that under the constitution those using water for domestic purposes have the preference over those claiming for any other purpose, but the usage for such superior purpose is subject to the provisions of see. 14 of art. 1 of the constitution, regulating the taking of private property for public use.
In the ease of Montpelier Milling Co. v. City of Montpelier, 19 Ida. 212, at p. 219, 113 Pac. 741, 743, the court said:
“It clearly was the intention of the framers of the constitution to provide that water previously appropriated for manufacturing purposes may be taken and appropriated for domestic use, upon due and fair compensation therefor. It certainly could not have been the intention of the framers of the constitution to provide that water appropriated for manufacturing purposes could thereafter arbitrarily and without compensation be appropriated for domestic purposes. This would manifestly be unjust, and clearly in contravention of the- provisions of this section, which declare that the right to divert and appropriate the unappropriated waters of any natural stream for beneficial use shall never be denied, and that priority of appropriation shall give the better right.”
Respondents, however, contend that they have shown an adverse use to the waters of Dry Creek for domestic purposes for a period in excess of five years. We think the evidence fails to show an adverse appropriation by respondents for domestic purposes, and respondents could not claim as riparian proprietors. (Drake v. Earhart, 2 Ida. 750, 23 Pac. 541; Hutchinson v. Watson S. Ditch Co., 16 Ida. 484, 133 Am. St. 125, 101 Pac. 1059.)
This is not a proceeding to condemn the property of appellant water users and subject the same to a higher and more beneficial use, but an action to quiet title. The trial court therefore erred in its first and second conclusions of law, to the effect that respondents were entitled at all times to have delivered at their point of diversion sufficient water for domestic uses and culinary purposes, and the decree based thereon is erroneous.
Respondent E. K. Taylor was made party defendant in the original action, and respondents Samantha J. Taylor and J. B. Taylor intervened in the action. By their cross-complaints each respondent alleges title to 6.4 second-feet of the waters of Dry Creek, diverted at or near the center of sec. 15, tp. 10 N., R. 25 E., B. M., which said waters were first diverted from said creek on June 1, 1908, and conducted by means of irrigation works to and used upon certain described lands.
The intervenors did not allege any privity of title or estate between themselves and defendant E. K. Taylor. Each respondent alleges that he has been gradually increasing his
The briefs on file in this case devote much space to a discussion of respondent’s title to Permit No. 2929. It appears from the exhibits in the case that L. L. Folsom conveyed Permit No. 2929 to the Custer County Land & Irrigation Company, by deed dated Feb. 18, 1908. The Custer County Land & Irrigation Company, in September, 1908, conveyed the said permit to Ben E. Hervey. In March, 1909, Ben E. Hervey conveyed to the Spokane-Idaho Irrigation & Power Company, Ltd., Permits N'os. 3924, 2929 and 4092, issued by the state engineer of the state of Idaho, with other property, “saving and excepting a sufficient quantity of- said water and water rights to irrigate 1,920 acres of land, heretofore expressly reserved and granted unto E. K. Taylor.” Defendant Taylor testified that prior to settling upon the lands occupied by him, to which he diverted the waters of Dry Creek, that he had had an agreement with L. L. Folsom, or the Custer County Land & Irrigation Company, as a result of which a deed had been executed to him of Permit No. 2929 and placed in escrow in a bank at Boise, Idaho; that he had made the payments called for by the terms of the escrow agreement, and had arranged to convey his rights to Hervey, with the reservation of sufficient water for his own needs; that upon calling upon the escrow holder for the delivery of the deeds the same
Admitting the facts to be as above outlined, they fail to show any conveyance of title to respondent E. K. Taylor. The statement reserving a “sufficient quantity of said water and water rights to irrigate 1,920 acres of land, heretofore expressly reserved and granted unto E. K. Taylor,” is merely descriptive of the reservation and is not a grant to Taylor, The appellants not being parties to any of the above enumerated conveyances are not affected by the reservation.
Without reference to the question of title, however, respondent Taylor could not rely upon Permit No. 2929 in this ease. The issue presented by his cross-complaint is ownership of a water right, and on this issue the holding of a permit from the state engineer, in and of itself, has no probative force. A permit from the-state engineer is not a water right, and this court has held that it is not an appropriation of the public waters of the state and is not real property. (Speer v. Stephenson, 16 Ida. 707, p. 716, 102 Pac. 365; Ada County Farmers’ Irr. Co. v. Farmers’ Canal Co., 5 Ida. 793, 51 Pac. 990, 40 L. R. A. 485.) A permit merely expresses the consent of the state that the holder may acquire a water right, and if the holder of the permit substantially complies with all the requirements of the statute, to and including the actual application of the water to the beneficial use specified in the application for the permit, he may become the owner of a water right, the priority of which will relate back to the date of the permit; but until all the requirements have been complied with, including the actual application of the water, the holder of the permit has nothing but an inchoate right. Proof of ownership of a permit will not sustain a decree founded upon a pleading alleging ownership of water. After the holder of a permit has fulfilled all the requirements of the statute, and made proof to the state engineer that he has put the water to beneficial use for which the diversion was intended, he is entitled to a license from the state engineer confirming such use.
In the case of Washington State Sugar Co. v. Goodrich, 27 Ida. 26, at p. 38, 147 Pac. 1073, 1077, this court said: “The granting by the state engineer of a permit for the right to use of water of this state, in and of itself secures to the applicant no right to the use of the waters applied for in said permit, unless there be a substantial compliance with each and every provision of the statute relating to or in any manner affecting the issuance of such permit, and a fulfilment of the conditions and limitations therein, but a compliance with the conditions and limitations prescribed in such permit initiates a right to the use of the water in the applicant, and said right then becomes a vested one and dates back to the issuance of said permit.”
By granting respondents a decree to 15 second-feet of water, dating from April 11, 1907, the court seems to have been of the opinion that respondents were entitled to the benefit of the doctrine of relation, and that their right for the full amount of water which their works were capable of diverting would date from the time of the application for the permit. We do not think that the respondents in this case were entitled to the benefit of the doctrine of relation. The first statute passed in Idaho Territory relating to water rights was enacted Feb. 10, 1881. This was followed by the act of Feb. 25, 1899. From the time of the passage of the act of Feb. 10, 1881, to the act of March 11, 1903, there was in force in Idaho a statute requiring notice to be posted and recorded by those who desire to initiate a claim for water or water rights, and requiring diligence on the part of the claimants in order that the doctrine of relation might be invoked for their benefit. Both the acts of 1881 and 1899 provided that by completion of works was meant the conducting of water to the place of intended use, and they further provided that by compliance with the rules prescribed in the statutes the claimant’s right to use the water would relate back to the time the notice
In the face of these statutes no one was entitled to invoke the doctrine of relation who failed to comply with the requirements of the statute, with the exception above stated. (2 Kinney on Irrigation & Water Rights, p. 1299; Pyke v. Burnside, 8 Ida. 487, 69 Pac. 477; Crane Falls Power & Irrigation Co. v. Snake River Irrigation Co., 24 Ida. 63, 133 Pac. 655.) The act of 1903 prescribed certain limitations in the matter of diligence in the prosecution of the work and provided that application to a beneficial use was necessary to complete the appropriation of public waters of the state. frThe doctrine of relation cannot be invoked by a person alleging title to a water right, and asking that his title be quieted, until the final consummation of the appropriation as defined by statute, and can be invoked only to the extent of the completion of the appropriation. ] (2 Kinney on Irrigation & Water Rights, p. 1290; Bennett v. Nourse, 22 Ida. 249, 125 Pac. 1038; Cole v. Logan, 24 Or. 304, 33 Pac. 568.) Under the acts of 1881 and 1899, the appropriation was completed upon the completion of the irrigation works and conducting of the water through the same to the point of intended use, and to the extent of the carrying capacity of the works, subject, however, to its being lost by failure to apply the water to a beneficial use within a reasonable time. Under the law of 1903, no appropriation is complete until the water has been applied to a beneficial use, and it follows that no appropriation can exceed the amount of water so applied.
The appellant Blaine County Irrigation Company sets out the permit of the state engineer under which it is operating. Appellant claims that by diverting the waters of Dry Creek at the point of intake of its pipe-line, a great saving of water is made; that between the intake of the pipe-line and the outlet of the Farmers’ Ditch, where it formerly emptied into Wet Creek, there was a loss of about sixty per cent of the water flowing down Dry Creek and through the Farmers’ Ditch, and that having effected this saving they were entitled to the same. The evidence showed that more than fifty per cent of the loss occurred in the Farmers’ Ditch and about ten per cent in the creek itself. It appears that the farmers taking water through the Farmers’ Ditch had their water measured to them at a point near where it was discharged from the ditch into Wet Creek. The decree of the court in 1907 did not designate the point at which their water should be measured. This court has held that water appropriated for irrigation purposes must be measured to the claimant at the point of diversion; (Stickney v. Hanrahan, 7 Ida. 424, 63 Pac. 189; Bennett v. Nourse, supra.) It may be that the decree of 22
The question of the rights of the respondents and appellant irrigation company, under their respective permits, in case title thereto is shown is not before the court under the pleadings in this case. Under proper allegations, actions may be instituted for the protection of rights initiated by permits.
In this action appellants also ask that the right of those taking water through the Farmers’ Ditch to change their point of diversion be confirmed. Under the statute their point of diversion may be changed, provided such change causes no injury to any other appropriator of water. Respondents are the only parties who could claim to be injured in this case. Their rights must be determined in this action, and when so determined must be protected. A sufficient amount of water must be permitted to flow down the creek to the point of diversion of respondents to satisfy their rights according to their respective priorities. Subject to rights of respondents, the appellants are entitled to change their point of diversion.
The decree of the trial court must be reversed and a new trial ordered. No costs awarded on this appeal.
Dissenting Opinion
Dissenting. — I am nnable to concur in that portion of the opinion which holds that under the evidence, respondent, E. K. Taylor, has not shown any right to operate under permit No. 2929. No one claiming under this permit has disputed Taylor’s right thereunder, and the undisputed testimony of Taylor is to the effect that he purchased rights under this permit; that the deed conveying the same was made out and placed in escrow, to be delivered upon the completion of Taylor’s payment therefor, to his grantor; that he completed all the payments, but that upon demanding the deed in escrow it could not be found, and that by mutual agreement the rights which Taylor had purchased from his grantor were conveyed directly from Taylor’s grantor to Taylor’s grantee, reserving therefrom certain rights to Taylor under the permit. Taylor’s evidence is corroborated by the transfer from Ben E. Hervey to the Spokane Irrigation & Power Company, Limited, “saving and excepting a sufficient quantity of said water and water rights to irrigate 1,920 acres of land heretofore expressly reserved and granted unto E. K. Taylor.” While it is true that this language is merely descriptive of the reservation and does not constitute a grant to Taylor, it is evidence clearly corroborating Taylor’s statement that a grant had theretofore been made to Taylor.
This entire action is equitable in its nature, and it is one of the fundamental maxims of equity that equity regards that as done which ought to be done. (1 Pom. Eq. Jur., 3d ed., secs. 363-377, inclusive, and numerous cases there cited.) The facts and circumstances in evidence touching Taylor’s right under Permit No. 2929 lead to but one conclusion, that is, that E. K. Taylor ought to have been granted a right to operate under Permit No. 2929, and in equity this right is as complete as though the grant were actually made in form. All persons claiming under Permit No. 2929 concede Taylor’s interest and rights thereunder. No one else has a right to complain, and his rights under the permit can only be questioned for noneomplianee with the law thereunder, and while it is true that the lands described in Permit No. 2929 cover only a portion of the Taylor lands, the certificate of completion
Nor is it correct to say that the permit in and of itself has no probative force. True, a permit is not a water right, but it does give any lawful holder of the permit, or an interest thereunder, the right to proceed with reasonable diligence and in compliance with the statute to mature the water right. To hold that a permit has no probative force would be tantamount, when pursued to its logical result, to holding that a person could get no rights under the statute which any appropriator would be bound to respect until the holder of the permit was in position to show that he had fully complied with the law in every respect and completed his appropriation by applying it to a beneficial use. (Sandpoint Water etc. Co. v. Panhandle Dev. Co., 11 Ida. 405, 83 Pac. 347; Speer v. Stephenson, 16 Ida. 707 — 716, 102 Pac. 365; Washington State Sugar Co. v. Goodrich, 27 Ida. 26, 147 Pac. 1073.)
The evidence touching the rights of the Taylors and their use of water and the relation existing between B. K. Taylor on the one hand and Samantha J. and J. B. Taylor on the other hand, and the pleadings in this respect appear to be incomplete. The pleadings should be amended to promote the ends of justice in this case in order that the trial court may receive evidence in support of their respective claims and award a judgment in proper form, which would adequately protect the rights of the parties under the law and the facts.
It is not necessary for an appropriator to follow the procedure provided by statute in order to acquire a valid water right which will be good as against all subsequent appropriators. One who actually diverts and appropriates water to a beneficial use or appropriates and diverts water to the point of intended use and thereafter, with reasonable diligence, applies such water to a beneficial use, acquires as good a right thereto as one who appropriates under the provisions of the statute. (Conant v. Jones, 3 Ida. 606, 32 Pac. 250; Brown v. Newell, 12 Ida. 166, 85 Pac. 385; Lockwood v. Freeman, 15 Ida. 395, 98 Pac. 295; Nielson v. Parker, 19 Ida. 727, 115 Pac. 488.)
In the latter case the court said: “It has never been the intention, so far as we are advised, of the legislature to cut off the right an appropriator and user of water may acquire
It is clear, then, that there are two distinct methods by which one may acquire a water right; first, by actual appropriation; second, by compliance with the statute. The difficulty seems to arise in determining just how or in what manner and to what extent, in a given case, the rights of one claiming by actual appropriation have accrued and will be protected. In this case the Taylors went into possession of their land in the spring of 1908; during that season they completed the construction of their ditch, or canal, and actually diverted the water and carried it to the point of intended use, and the evidence shows that they proceeded, with due diligence, to clear their land, to cultivate it and to apply the water to a beneficial use thereon.
If I understand the majority opinion, it restricts the doctrine of relation to the extent of a compliance with the statute, which would be correct if the statutory method were the only method whereby water could be appropriated. But there is another doctrine, well settled in this state and other jurisdictions where the same question has arisen, which is adequate to fully protect the rights of the Taylors in all of the .water which they claim, and this is the well-known doctrine of appropriation for future needs. (Wiel on Water Rights, 3d ed., vol. 1, sec. 396, and secs. 483, 484.) This author says,
“It seems well settled that such is the rule .... The essence of the rule is that the design may be carried out in spite of an intervening appropriator elsewhere on the stream, as the quotations below show.”
In support of this doctrine the author cites cases from Colorado, Idaho, Montana, Nevada, Oregon, Utah, Washington and California. The only limitations upon the rule are that the future needed amount must have been originally claimed at the time of initiating the appropriation, the future needs must have been in mind, the enlarged use must have been a part of an original policy of expansion, use on the land in question must have been contemplated at the time of the original appropriation, the future enlargement cannot exceed the original capacity of the ditch, the amount actually diverted can be held without using no longer than is reasonable under the circumstances of each case, and the right may be lost by abandonment. What is a reasonable time is a question of fact in each ease and depends upon the magnitude of the undertaking and the natural obstacles to be encountered in execution of the design. Sec. 484, supra, containing illustrations from numerous authorities there cited.
This court clearly and without ambiguity adopted the above rule in this state in Conant v. Jones, supra. Under the circumstances in this case I feel justified in quoting at length
“It is contended that respondent .has not used, or put to a beneficial use all of the water of said creek, and for that reason he has forfeited his right to all of the water not used for the purpose intended. It is true that the evidence fails to show that respondent has utilized the entire amount of water diverted. There is no question but what respondent had the right to appropriate, of unappropriated water, sufficient, not only for the present, but also for the future needs of his land, when he shall get it into cultivation.
“The question arises as to the diligence to be exercised in the application of the water to the intended use. Section 3161 of the Revised Statutes of 1887 declares the diligence necessary to be exercised in conducting water to the point of intended use after the location of the same; but the law is silent as to the diligence to be exercised in making application of the water appropriated.
“The appropriator would no doubt be entitled to a reasonable time in which to get his land in cultivation and to make such application. If that be true, it follows that what constitutes reasonable time is a question of fact dependent upon the circumstances of each particular case. No inflexible rule should be made to decide what constitutes a reasonable time in this matter. We are of the opinion that a person who complies with the law as to locating and conducting the water to the point of intended use has such time as he may need, or require, using ordinary diligence in getting his land into cultivation, to make application of such water to the intended use, such time at least, as is reasonable under all of the circumstances.
“Poor men as a rule have settled upon the arid lands of this state and taken them under the laws of Congress, many of them under the homestead law, and are able to clear but a small portion of such lands of sagebrush, from year to year, and put it in condition for raising a crop, and it will take years for many of them to prepare their entire farms for cultivation and to make application of the water appropriated*308 thereto. A decision that would defeat persons acting in good faith and using reasonable diligence from securing the full benefit of the water appropriated would be most unjust and inequitable. In the meantime, however, he is only entitled to such water from year to year as he puts to a beneficial use. A person may add from year to year acreage to his cultivated land, and increase his application of water thereto for irrigation as his necessities may demand, as his abilities permit, until he has put to a beneficial use the entire amount of water at first diverted by him and conducted to the point of intended use.”
The rule there laid down has been followed by this court in Hall v. Blackman, 8 Ida. 272, 68 Pac. 19; Brown v. Newell, supra. It should be noted in connection with the latter case that it was decided in 1906, three years after the adoption of the statute providing for the issuance of permits and the ultimate maturing of water rights thereunder by complying with the statutory provisions. The facts in that case are substantially parallel with the facts in the case at bar, so far as they describe the acts and intention of the Taylors. The court says, in its opinion:
“It is contended by appellant that the acts of diversion and appropriation done by Horton in 1899 did not amount to an actual appropriation. It clearly appears from the evidence that the ditch was opened in the fall of 1899, and the head-gate was put in and the water, to the amount of 200 inches, was actually delivered on the Horton claim. These acts were followed up the next year by extending the ditch so as to more completely distribute the water over the entire claim, and this in turn was followed by cultivation of a larger acreage of the claim. We think the facts bring this case within the well-established rules of law both as to what constitutes an appropriation as well as the reasonable time in which an appropriator may apply the water to the intended use. (Conant v. Jones, 3 Ida. 606, 32 Pac. 250; Pyke v. Burnside, 8 Ida. 487, 69 Pac. 477; Sandpoint Water & Light Co. v. Panhandle Dev. Co., 11 Ida. 405, 83 Pac. 347.)
*309 “ .... It is unnecessary for us to consider the validity of the water right notice and claim posted by Horton on March 28, 1900, or of the subsequent steps taken by him under that notice in his endeavor to comply with the law. The actual diversion and application of the water had preceded that date, and it therefore becomes unnecessary for us to consider the steps taken in regard to the posting and recording the notice and the prosecution of work thereafter.”
The facts in the present ease are sufficient to indicate the amount of land settled and occupied by the Taylors, which, from the evidence, it clearly appears they intended to reclaim and irrigate by the application of water, which was actually appropriated and diverted to the point of intended use sometime during the season of 1908. The evidence shows that the ditch was designed to carry the water from their point of diversion to and upon their lands, and that it was completed that season, and that its capacity was adequate to carry water sufficient for the irrigation of all of the lands in question. The evidence further shows that the Taylors have proceeded with reasonable diligence in the application of this water upon their land to a beneficial use in the reclamation thereof. Of all of these facts the Blaine County Irrigation Company had actual notice at the time it secured its permit from the state engineer in October, 1910.
All of the facts and circumstances in evidence clearly show that the Taylors have brought themselves well within the rule governing appropriation for future needs. To hold otherwise would amount to overruling a long line of harmonious decisions governing such property rights in this state and would abrogate a rule of law which is well settled in all of the arid states.
For the reasons herein expressed I am unable to concur in the majority opinion upon this phase of the case. .