96 P. 120 | Idaho | 1908
This action was brought by the city of Pocatello to restrain the defendant from using, interfering with or in any manner depriving the plaintiff of certain water from a certain spring, which spring is situated outside of the Limits of the city, and is referred to in this litigation as the. “South Spring”; and to adjudicate the ownership of said water and forever quiet the title of the city to the same.
The following facts appear from the record: In May, 1902, Theodore Turner was the mayor of the city of Pocatello, and
It appears that the defendant, Bass, who is appellant, settled upon 80 acres of land under the homestead laws of the United States, not far from the spring in question, and made his homestead filing therefor in September, 1904; that in August, 1904, he applied to the state engineer for a permit, to divert the waters of a certain spring, being the spring in question, and the said permit was granted, and that thereupon;
After hearing the evidence, the court made findings of fact and entered judgment in favor of the city, from which judgment this appeal is taken.
Counsel for appellant assigns as error certain findings of the court as to the location and appropriation of said water. Theodore Turner testified as follows as to his appropriation of the water of said spring: “Immediately after making the appropriation (location) within a few days, I got a man by the name of MeLachlan to go with me there and we cleaned out the ditch that the Indians had. The water from this spring had already been taken by the Indians and used upon the land described in my notice of appropriation. We took the water down there with the help of Mr. MeLachlan and myself and used it in irrigating that crop of alfalfa that was growing there, and Mr. MeLachlan or the Indians, or perhaps both, turned the water also upon the potatoes. I was not present every time it was done. I saw it a part of the time. That was in the year 1902.”
The chairman of the Park committee of the city of Pocatello testified that he knew the spring in controversy, and in 1903, it was used a part of the time for watering the trees in the park, and that the defendant was employed by him to trim up the trees in the park and see that the two streams of water were put on them, one of such streams from the spring in controversy and one from another spring, and that he made special arrangements with him to keep the water running there. Dr. Steely, a witness for the defendant, testified in substance that he was acquainted with the spring in question; that he was mayor of the city of Pocatello in the year 1903; that he went to this spring in that year, and that the water was flowing from that spring and running to and upon said lands; that this was in the month of June, 1903. Another witness testified that he was acquainted with the prem
We think the evidence is amply sufficient to sustain the findings, for it appears beyond a reasonable doubt, that Turner actually located and diverted the water in question, and applied it to a beneficial use upon said land for the irrigation of certain trees there, lucerne and potatoes. His appropriation was complete when he applied it to a beneficial use, which the evidence shows he did in 1902. His testimony is amply corroborated by the testimony of other witnesses to that effect. Witnesses for the defendant testified that the old Indian ditch had not been repaired and no water run through it. There was a direct conflict in the testimony upon that point, and under the well recognized rule that where there is a substantial conflict in the testimony the court will not reverse the findings of the trial court, the findings must be sustained. Turner’s appropriation of said water was made in 1902, and had not been forfeited at the time respondent undertook to appropriate it. It was not subject to appropriation at the time appellant claims he appropriated it.
Counsel for appellant contends that the city of Pocatello has no authority, express or implied, for acquiring said 200 acres of land for park purposes, as the same lay outside of its corporate limits. As appellant is not claiming any portion of said lands, he is not in a position to attack the right of the city to purchase and hold the same.
“"Whether a municipal corporation, with power to purchase and hold real estate for certain purposes, has acquired and is holding such property for other purposes, is a question which can only be determined in a proceeding instituted at the .instance of the state. If there is capacity to purchase, the deed to the corporation divests the estate of the grantor, and there is a complete sale; and whether the corporation, in purchasing, exceeds its power, is a question between it and the state, and does not concern the vendor or others.”
The main question in this case is as to whether Mr. Turner made a valid appropriation of the water of the spring in controversy, which was in force at the time appellant made an attempt to do so. As above shown, his final act of appropriation was applying the waters of said spring to the irrigation of the land then owned by him. The evidence sufficiently shows that said water was used on the land belonging to him in 1903. Turner’s appropriation being valid at the time the appellant attempted to appropriate said water, the appellant secured no rights by his efforts to appropriate the same.
After a careful examination of the entire record, we are satisfied that the judgment must be affirmed and it is so ordered, Costs of this appeal are awarded to respondent.