220 P. 107 | Idaho | 1923
— This is an original proceeding brought to secure a permanent writ of prohibition enjoining the de
From the record it appears that on August 15, 1923, Margaret Mahaifey and the Pioneer Bank & Trust Company, a corporation, filed a complaint in the district court of the sixth judicial district in and for Lemhi county in which they sought, among other things, to have awarded to them the right to the use of 175 inches of the waters of Agency Creek for the irrigation of their lands, which they alleged to be subject to irrigation from that stream. A ditch known as the Lemhi River Ditch was constructed in 1914 for the purpose of delivering water from the Lemhi River to Agency Creek and to supply intervening users. Plaintiffs seek by delivering a certain amount of water from the Lemhi River into the Lemhi Ditch, to have an equal amount of water delivered to them out of Agency Creek in exchange therefor. The complaint alleges that the petitioners, Fred' B. Pattee and Joseph L. Pattee, subsequent to the construction of the Lemhi River Ditch, changed their point of diversion from a point where. that ditch empties into Agency Creek to a point above it, thereby diverting the waters of Agency Creek and denying plaintiffs the right thereto. They also alleged that the petitioner, Daniels, water-master of Agency Creek, has refused to deliver any of the waters of Agency Creek to the plaintiffs to their great and irreparable damage. From the record it further appears that the Avaters of Agency Creek have been decreed; that the petitioners, Pattees, and others Avere aAtarded all of the waters of Agency Creek by decree made and entered by the district court of the sixth judicial district for Lemhi county on December 14, 1914, which decree is of record in that county.
Upon the filing of the complaint and on motion duly made, Honorable George W. Edgington, Judge of the ninth judicial district, in the absence of the defendant judge, issued an in
It is the contention of the petitioners that the defendant judge 'is acting in excess of the jurisdiction of the court for the following reasons: (1) That the complaint, which forms the sole basis for the issuance of the injunction, does not state a cause of action; (2) that the complaint, even though stating a cause of action, does not set forth any grounds or show any reason for injunctive relief during the pendency of the action; (3) that the so-called injunction is a writ of mandate so far as the petitioner William Daniels is concerned and directs him to perform acts in violation of his official duty as prescribed by law; (4) that the injunction attempts to restrain the petitioners, Fred B. Pattee and Joseph L. Pattee, from enjoying a vested right — the right to the use and enjoyment of which has been confirmed in them by a final decree of a competent court; (5) that by said injunction the petitioners, Fred B. Pattee and Joseph L. Pattee, are deprived of a property right without due process of law and without just compensation in violation of their rights as guaranteed by art. 1, sees. 13 and 14, of the constitution of this state.
We shall discuss only such of the contentions mentioned as we deem necessary to a final disposition of this proceeding. It is admitted in the complaint that the Pattees were awarded under the above-mentioned decree the right to the use of 270 inches of the waters of Agency Creek; that they have put said waters to a beneficial use, and that the use of the same is necessary to the proper irrigation of their lands. The complaint also admits that the construction of the Lemhi River Ditch by the plaintiffs and others in 1914 has, since that year, augmented the flow of the waters of Agency Creek. From the pleadings it is clear that the controversy between the plaintiffs and the petitioners, Pattees, involves the right of the plaintiffs to require petitioners to accept the undeereed waters of Lemhi River in lieu of waters decreed to them from Agency
It would seem to us that plaintiffs are attempting, by invoking the injunctive power of the trial court, to enforce an exchange of the waters of Lemhi River for the waters of Agency Creek. It is admitted that the petitioners, Pattees, have a decreed right to the waters of Agency Creek. To require them to surrender such property right and take in lieu thereof undecreed waters of Lemhi River would be in violation of their constitutional right to the possession and enjoyment of their property. The extent to which this court has gone in the matter of the exchange of water was announced in the case of Reno v. Richards, 32 Ida. 1, 5, 178 Pac. 81, where it is said:
“It is not shown that there were any rights intervening between their point of diversion from Birch Creek and the point where they caused the waters of Pass Creek to empty into Birch Creek. In the absence of detriment to other users of water from Birch Creek there is no doubt of their right to make a diversion from Birch Creek, at their point of diversion, of the amount of water which they caused to flow therein for the use of other appropriators farther down the stream.”
It may be that under certain circumstances, where a clear ease is made, an exchange of water may be brought about, but under no circumstances can it be done where the exchange would result to the detriment of prior users or result in depriving such prior users of a property right. In the case of Berg v. Twin Falls Canal Co., 36 Ida. 62, 213 Pac. 694, this court said:
“They could mix waters appropriated by them with those of respondent and any number of others, in a natural watercourse for a similar purpose. (C. S., sec. 5560.) But this practice is allowed upon the theory that the water taken out is the water appropriated.”
In the instant case plaintiffs do not seek relief upon this theory, but, on the contrary, seek to take decreed waters of petitioners, Pattees, diverted from Agency Creek above the point where the Lemhi River Ditch empties into Agency
In so far as the injunction affects the petitioner Daniels it is mandatory and directly in violation of the decree whereby the waters of Agency Creek are to be distributed. Daniels, as water-master, is limited in the matter of the distribution of the waters of Agency Creek by the decree and must follow its provisions.
We are of the opinion that the complaint did not state facts sufficient to warrant the court in issuing the injunction and also that the verified answer and affidavits of petitioners made a clear case warranting the dissolution of the injunction and that the court erred in refusing to dissolve the same, and acted without and beyond its jurisdiction in citing the petitioners to appear and show cause.
From what has been said it follows that a permanent writ of prohibition should issue from this court enjoining further proceedings in this matter, and it is so ordered.