125 P. 1038 | Idaho | 1912
Lead Opinion
This action is to determine the amount and priorities of water rights from Canyon creek, Elmore county. Canyon creek rises in the Danskin mountains, about twenty miles north of Mountainhome, and flows in a southerly direction through the foothills and mountains about twelve miles out upon the sagebrush plain. At the mouth of the canyon is situated what is known as the Ake and Lockman ranch. From that point the creek flows in a southerly direction about three miles, where it divides, one fork going in a westerly direction and called the west fork of Canyon creek, the other in a southerly direction and called east fork of Canyon creek.
The appellant Bennett owns land about four miles south of where said stream forks and has taken a ditch out of the west fork of said creek near the junction, which ditch carries water to and upon his land. The appellant Dienst owns land about six miles south of the Bennett land and has been getting water out of the east fork of the creek for the irrigation of his land. . The respondent, the Elmore Irrigated Farms Association, a corporation (which will hereafter be referred to for convenience as the Elmore Association), constructed, or had constructed, in 1891, a reservoir on Rattlesnake creek, several miles easterly from Canyon creek, which reservoir is supplied partly by water taken out by a feeder canal from Canyon creek at the mouth of said canyon, and partly from the waters of Rattlesnake creek. The Elmore Association claims to have acquired the water rights of several persons who had theretofore settled on Canyon creek, and have conveyed said water from Canyon creek through its said feeder
After the Elmore Association had made its agreement with several of the respondents, whereby it was to furnish said parties water from its said reservoir in consideration of their
The appropriator of water, or his successor in interest; may change the place of diversion if the rights acquired by others are not thereby interfered with by the change and no injury results to other appropriators therefrom. (See see. 3 of an act to regulate the use of water, Sess. Laws 1881, p. 267; sec. 3157, Rev. Stats, of 1887; and sec. 3247, Rev. Codes.) Sec. 3157, Rev. Stats, of 1887, was in force at the time the changes referred to were made. That section provides that an appropriator may change the place of diversion if others are not injured by such change. It thus clearly appears that the policy of the legislature was to permit a change in the point of diversion if such change injured no subsequent appropriator. A subsequent appropriator has a vested right as against his senior to'insist upon a continuance of the conditions that existed at the time he made his appropriation, provided a change would injure the subsequent appropriator. (See Baer Bros. etc. Co. v. Wilson, 38 Colo. 101, 88 Pac. 265; Sandy Ditch Co. v. Louden Irr. Canal Co., 27 Colo. 515, 62 Pac. 847; Mills’ Irrigation Manual, p. 68.)
Wiel on Water Rights, S'd ed., sec. 302, states as follows:
“A subsequent appropriator has a vested right against his senior to insist upon the continuance of the conditions that existed at the time he made his appropriation. ‘A second appropriator has a right to have the water continue to flow as it flowed when he made his appropriation.’ The subsequent appropriator is entitled to the surplus, and any attempt of the prior appropriator to make a sale of such surplus to someone else to the injury of existing appropriators, though subsequent, is of no avail.”
(1) It is first contended that the court erred in awarding to Bennett 160 inches with a priority as of May 1, 1886, instead of 240 inches as of April 8, 1885. It appears from the evidence that the land owned by Bennett was first owned by one Tregaskis, and that he filed in the office of county recorder of Alturas county, which county then included Elmore county, a water right notice dated April 8, 1885,t and the evidence shows that he and a man by the name of Field constructed a ditch, taking water from said Canyon creek upon the land now owned by Bennett, and that he raised a crop of about fifteen or twenty acres of barley or rye on the land that year; that said ditch was of sufficient capacity to carry water for the proper irrigation of said land and carried approximately 400 inches and has not been enlarged since Bennett bought Tregaskis’ land and right therein in 1887. There is evidence which shows that Tregaskis was actually diverting water through said ditch in the fore part of May, 1885. That being true, his right would relate back to the 8th of April; 1885, the date of his notice, and the court erred in not giving him a right as of that date. Bennett’s ditch is about four miles in length, and it is contended that the loss of water turned in at the head of the ditch is about one-half before it reaches the land, and that it requires an inch to the acre to properly irrigate said land after the water reaches the land, and that Bennett ought to have been awarded 240 inches at the head of his ditch. We are not disposed to change the finding of the court upon this point, for it stands every water user in hand to construct his ditch so that there will be the least possible waste of water, and no doubt by either piping or cementing portions of the ditch where the greatest waste occurs, Bennett can save much of his water. In the decision of this court in Stickney v. Hanrahan, 7 Ida. 424, 63 Pac. 189, it was held that water appropriated for irrigation must be measured at the point of diversion.
Under the evidgnee, the court erred in not decreeing to appellant Dienst a water right for 160 inches delivered at the head of his ditch, as of March 31, 1885.
(3) It is next contended that Frank P. Ake owned individually 160 acres of land and that only about 70 acres of said land had been irrigated at the time of the trial. It appears from the evidence that Ake located on said land in 1883 and took water out upon the land in 1884, and constructed a ditch diverting water from the east fork of said creek, and that he irrigated a few acres from such ditch during the season of .1884. In 1885 he irrigated about ten acres altogether. Only about forty acres 'could be irrigated from
(4) It is next contended that the court erred in awarding Laura Ake 160 inches as of March 15, 1885, for the irrigation of 160 acres of land. Said land was entered by her in November, 1884, and she irrigated a few acres thereof in 1885. Only about sixty or seventy acres of said 160 acres had been reclaimed or was under cultivation at the time of the trial of this case in 1908. It also appears that she receives her water through the same ditches as does her husband, Frank P. Ake, and it is contended that her water right should date from the spring of 1886 and be limited to eighty inches, which amount of water, it is contended, will be abundant for the irrigation of the sixty or seventy acres which has been
(5) Ake and Loekman were given 100 inches of water from June 1, 1876, and 140 inches from March 1, 1886. The land claimed by Ake and Loekman consisted of 240 acres of school land, being a part of section 36. It was purchased from the state at a public land sale on November 9, 1901. It appears from the evidence that a part of said land had been irrigated for about twenty-five years before it was purchased from the
It is contended by counsel for appellant that the only persons who were entitled to divert water from said canyon creek for irrigation purposes were those "owning and claiming any lands situated on the banks of or in the vicinity of any stream” as provided by the 10th section of the act of the legislature of the territory of Idaho relating to water rights. (See Sess. Laws 1881, p. 267.) Said section is as follows:
"All persons, companies, and corporations, owning or claiming any lands situated on the banks or in the vicinity of any stream, shall be entitled to the use of the waters of such stream for the purpose of irrigating the land so held or claimed.”
In 1876 when a part of said Ake and Lockman land was first irrigated, the land did not belong to the state, for the reason that Idaho was then a territory and not a state. However, sections 16 and 36 of each township had been reserved for school purposes by the provisions of sec. 1946, Rev. Stats, of the U. S. Idaho was not admitted as a state until about fourteen years after the first irrigation of said land. Under the Idaho admission act, secs. 16 and 36 in each township were granted to the state as school lands. It appears from the evidence that about 100 acres of said land claimed by Ake and Lockman had been reclaimed in 1876 and was irrigated and produced a crop each year from that date until Idaho was admitted as a state. Ake and Lockman continued to cultivate and crop said land from the time Idaho became a state until the 8th of November, 1901, when they purchased said land from the state. They were at least claiming the right to the possession of said land during all of that time. And after Idaho became a state, the state was then the only party that could complain of their holding, cropping and cultivating said land. The water they used each year during that time for the irrigation of said land was certainly not used by any other person. Under all of the facts, we conclude that they
(6) Some question is raised as to the water right of C. T. Rohrer, which right had been decreed to the Elmore Association with a priority as of May 1, 1885, for 230 inches. The evidence is conflicting in regard to this right. Rohrer testifies that he with three other parties constructed a ditch in April, 1885, and that said ditch would cover about 230 acres of his land, and that he first turned water on said land through said ditch in the latter part of April, 1885. This evidence sustains said finding of the court.
If the Elmore Association has procured the rights of other appropriators on said stream and diverted the water at the mouth of the canyon and turned it into its reservoir, it must let sufficient water pass down the stream to give each of the appellants at the head of his ditch the amount of water above awarded to them.
As above held, the appellant Bennett is entitled to have delivered to him at the head of his ditch 160 inches of water
As to the other rights referred to in this opinion, the decree must be modified as above indicated and the cause is remanded, with instructions to the trial court to amend its findings and decree in accordance with the views herein expressed.
Costs are awarded to the appellants.
Rehearing
ON 'PETITION POR REHEARING.
A petition for a rehearing has been filed in this case, in which it is earnestly contended that Laura Ake’s water right of eighty inches should be dated as of March 15, 1885, instead of March 31, 1885, as held by this court in the original opinion.
Upon a re-examination of all the evidence in regard to her water right, we have concluded to amend or modify the former opinion in regard to her said water right to date from March 15, 1885, instead of March 31, 1885, as originally held. The record contains some evidence that the water was first applied to her land about the middle of March-, 1885. The original opinion of this court in this case will therefore be modified as above indicated, dating Laura Ake’s right as of March 15, 1885. In this view of the case, it will not be necessary to grant a rehearing, as all that was asked for by the rehearing is hereby granted.