Heckman Ranches, Inc. v. State Ex Rel. Department of Public Lands

(1965), necessary Today, opinion, has held a in my this Court tells the rights required court is to define visitation judges indulge district of this state to ain detail to make and such in and enforce practice this Court condemned in necessary be secure regulations may 1970 Dey. in Cf., the observance of the court’s orders. In my judgment, disposition Thurman, v. Thurman by magistrate matter court should be (1952), Dey P.2d 810 32 A.L.R.2d 996. In v. reinstated in entirety. Cunningham, 93 Idaho 471 P.2d 71 (1970), judge sought apply a district

remedy majority requires which the the dis- apply in case. judge

trict the instant judge

That district was reversed

Court. in Dey,

As stated “the record discloses parties

that the were sev- before surprising eral times and it is not P.2d 540 obviously judge patience rather lost RANCHES, parties ability with the their lack of and HECKMAN INC. agree among themselves as reasonable Co., corporations, Heckman Cattle rights.’’ inability visitation For their to so Plaintiffs-Appellants, themselves, agree among judge found contempt. them A unanimous court said Idaho, Dey: Commonwealth, By STATE Through We feel practice it better for the court DEPARTMENT OF specifically written order to delineate in PUBLIC LANDS and the State Board of detail what are reasonable visitation and Commissioners, Land Gordon C. Tromb- rights. custodial We approve do not ley, Commissioner, Land Defend- methodology used trial court ants-Respondents. suggesting parties purge could No. 12316. contempt themselves of the order en- tering into an them- agreement among Supreme Court of Idaho. selves controlling custodial and visita- rights. might tion While such appear Jan. 1979. salutary to have a very surface practical resolving dispute, effect in

obviously in this case did not. stated, jurisdiction

As hereinabove

the trial court over child custodial and rights a continuing

visitation one and be

should exercised the court in such specificity may

detail and of order as be

necessary carry out the intent * * * practice court. utilizing

a minor child as a shuttlecock to perpetu- quarrel

ate a between former husband we strongly

and wife one cannot too is, however, practice It

condemn. with judges

which district can and should deal

strongly forthrightly. Their orders

should, necessary, when be clear and con- they

cise should not be slow in exer-

cising contempt powers their to enforce

their orders. Dee, Jr., William J. MacGregor,

W. C. plaintiffs-appellants. Grangeville, lease Kidwell, entered into a riverbed Wayne Atty. Gen., L. missioners I. Ursula Highways Kettlewell, Gen., Department Atty. Boise, with the State Asst. for de- from the gravel of sand and fendants-respondents. for the removal Pursuant to bed Salmon River. McFADDEN, Justice. lease, from materials were removed rip-rap in 1974. disputed area This is an quiet action to title land Whitebird, near Idaho. disputed The area Plaintiffs-appellants Ranches Heckman encompasses approximately 12 acres land Inc. and Heckman Ranches Co. initiated the located between the mainstream the 1974, present 7, action on March to recover survey eastern meander line of the Salmon damages for removing rip-rap the materials River, and includes a secondary or overflow and to title quiet disputed property.1 to the (See channel of the river. exhib- annexed Appellant Heckman Ranches Inc. owns it). primary The issue on appeal the three lots fractional on the eastern side of location of the natural or high adjacent the River disputed Salmon to the water mark of the Salmon River in relation property that were created as result of the disputed area. The district survey the meandered of the eastern bank ordinary high established the natural or of the Appellants disputed river. utilize the river, quieted water mark of the title area as a heifer calving ground during the accordingly plaintiffs and ordered the early spring Ap- before water runoff. property. judgment fence the The pellants allege boundary the part district court is affirmed in re- beyond their extends lots westward the me- part. versed in ander line to the “natural or along Lands both sides of the Salmon River, water mark” of the Salmon surveyed in River were 1893and the course they allege is near the mainstream of the of the river was meandered meander river. original sur- government lines drawn the The district court entered its memoran- veyor The in 1893. eastern meander fact, opinion, findings dum conclusions river, disputed portion the law and a decree the establishing however, significant is a distance from the water the mark of Salmon river approximates mainstream of the quieting property. River and title the secondary the eastern bank of the over- court’s findings district and conclusions flow is east channel. This overflow channel are summarized in part relevant as follows: of the mainstream and with main- the river; the River is a navigable Salmon the stream the When dispute. encircles land in “island” area was in in 1890 existence when the channel is with filled water from statehood; Idaho admitted whenev- runoff, during spring high- mainstream er the flow River at Salmon ground er appears above channel as an stream gauging Whitebird station exceeds controlling government “island.” The sur- 39,300 second, per feet cubic water flows in vey of this of the river was made secondary channel through “island” June, 1893, during spring high run- area; on based waterflow measurements at disputed off. The described surveyor gauging the Whitebird stream station for unsurveyed area as an “island” within years, 15 past flows sec- mainstream of the Salmon River. an 31.7 ondary average days per channel defendants-respondents In 1968 State area year; noted as an “island” Board of Com- Idaho and the Land surveyor in 1893 is not an legally island as title, quiet Following pre-trial hearing, ruling 1. action to since the in favor of damages pursuant respondent damages issue moots the issue of court severed 42(b) only judgment owner- is final. I.R.C.P. and determined only appeal ship thus involves issue. This 796 134, Matthews, (1927); P. 406 255 Idaho

defined because water does not continuous- 1, 136 25 Idaho channel; Ramey, & v. ly A. B. Moss Bro. secondary flow in the the “is- Baslington, v. (1913); Ulbright land” area was included in the P. 539, Lat (1911); Scott v. patent 119 P. 292 conveying appellants’ three fraction- Idaho 242, lots; 229, 57 L.Ed. 490 al tig, the natural or 227 U.S. 33 S.Ct. ordinary high water 506, 107 P. 47 (1912) (Rev’g 17 Idaho depicted mark Plaintiff’s Exhibit No. Johnson, (1910)); Johnson Defendant’s Exhibit 51 and v. No. Exhibit Hurst, court; (B) (1908); of the district P. 499 Johnson or 95 (1904). Ordinarily, meander 77 P. 784 ordinary high water mark of the river is public lands surveys established secondary channel and lines above encircles area; disputed the “island” lands are bordering rivers or navigable streams below the natural or lines, are not rather the boundary river or River; appellants’ mark of Salmon line. boundary stream forms the Smith v. boundary northwestern line coincides with Sheek, Long, supra; v. supra; Younie high ordinary established natural or Matthews, Stroup supra; v. Johnson v. mark; respondent water Idaho Hurst, supra. rule general To this is added owns the land bed of the Salmon exception for special an circumstances that extending ordinary or River intent grant show an to limit the a land by marks as high water established patent only. to the United meander court; and be re- appellants district shall Lane, 662, 236, v. 43 States 260 U.S. S.Ct. 67 quired boundary either to fence the of their (1923); L.Ed. 448 Oil Co. Han Producers v. property prevent trespass the continued 755, zen, 325, 59 238 U.S. 35 L.Ed. S.Ct. on state or property their cattle owned (1915); Club, v. Point 175 1330 Niles Cedar a lease their acquire authorizing continued 300, 124, (1889); 171 U.S. 20 S.Ct. 44 L.Ed. occupancy property. Morton, (9th v. F.2d 942 Ritter 513 Cir. 947, denied, 1975), cert. 423 U.S. 96 S.Ct. appeal On from the judgment of the dis- 362, (1975); 46 L.Ed.2d United States v. 281 court, appellants present thirty-seven trict Cal., Land, etc., Cty., 100 Acres of Marin assignments of error involving three main denied, (9th 1972), F.2d 1261 cert. 468 Cir. (1) issues: the location of the natural or 822, 119, 414 94 38 L.Ed.2d 54 U.S. S.Ct. ordinary high water mark of the Salmon (1973). in this state that It settled law River; (2) appellants’ by pos- title adverse navigable title to the bed of a river or session; (3) appellants’ duty to “fence- ordinary or between the natural stream in” their cattle. complexi- Because of their by the is held state. high marks ty, principal each sepa- issue is addressed 501, Lynch, v. 71 Idaho 234 P.2d Driesbach rately below. 700, Wilcox, (1951); v. 54 Idaho 446 Gasman Dollar, (1934); Raide v. 34 P.2d 265 35 I. 682, (1921); 203 P. 469 Northern Pa Idaho HIGH NATURAL OR ORDINARY 438, Hirzel, 161 Ry. v. 29 Idaho P. 854 cific WATER MARK Price, 745, (1916); Callahan v. 26 Idaho 146 (1915). P. 732 by established “Meander lines” survey survey are lines drawn government The term “natural or streams for navigable banks along the ”mark of or river is a stream defined sinuosities of defining purposes 58-104(9) “the line by I.C. §. stream, and as the means the banks impresses covering on the soil price paid to be ascertaining periods for sufficient soil government for meandered purchaser to the destroy agri its value Long, 76 Idaho lots. Smith v. fractional purposes.” It is also settled law in cultural Sheek, (1955); Younie v. 265, 483 281 P.2d that state that islands existed title to 767, Stroup v. (1927); P. 419 Idaho an island land is disputed at the time Idaho and whether navigable within a stream land, location of the pass merely to statehood do not was admitted high water mark of border lots patentees of land sale Price, inquiry because Callahan v. is the central by the United States. river bound- appellants’ Ramey, supra; v. line that determines supra; A. B. Moss & Bro. findings in its Despite line. indications Lattig, ary v. 227 U.S. 33 S.Ct. Scott applying 506, 107 the district court (1912) fact that (Rev’g 57 L.Ed. 490 rule, the district general to the (1910)). exception an P. 47 rule that applied general court in effect ” mark of ordinary high water the natural or refer to bodies of “Islands in turn boundary line of river is the navigable customarily surrounded entirely and ábutting lots. fractional water; they do not include lands title, holding appellants’ prop- quieted are surrounded a channel filled with to the natural erty extended stage, water when the river is in flood but Findings sup- of fact high water mark. dry during year. remainder of the ported by competent substantial, al- Long, supra; Sheek, v. Younie v. Smith though conflicting, evidence will not be dis- supra. appeal. 52(a); turbed on I.R.C.P. Wisdom Appellants assign error Henderson, 557 P.2d 1118 the natural or ordi- demarcation of court’s Therefore, (1976). the central issue before disputed water mark nary this court is whether competent and sub- River, arguing that portion of the Salmon supports stantial evidence by referring district court erred: to the the court’s determination of the natural or ordi- secondary encircled the chan- high land nary high water mark of the river. “island”; finding nel as an in that the east- Scribner, Mr. William Chief of the Bu- survey meander line Riv- ern of the Salmon Navigable reau of Waters for the State of along er runs the eastern bank of the sec- Lands, Department investigated ondary proximity channel in close disputed property the for purpose respondents line which contend is the natu- determining ordinary high the natural or ordinary high ral or water mark of the River, water mark of the Salmon which he river; finding in that the land between the defined as “the line which the water im- meander line and the mainstream of presses on the soil so as to it of river was intended to be excluded from vegetation agricultural and its value for conveyed by lands patent; federal land use.” Included Mr. Scribner’s duties as finding disputed that the lands were not Navigable Chief of the Bureau of Waters agricultural purposes. suitable for regulating are the functions of beds and navigable waters of streams and determin- competent substantial evi If ing boundary lines inspection. visual the district court’s deline supports dence Mr. indicated the natural or ordi- Scribner ordinary high water ation of the natural or nary high disputed por- water mark of the river, disputed portion mark of tion of the river on Plaintiff’s Exhibit No. assignments of error appellants’ related 22 and Defendant’s Exhibit No. 51. These the district court held must fail because exhibits indicate a boundary appel the northwestern encircling water mark the “island” area and coincided with the natural property lants’ another natural mark high water mark established edge secondary eastern channel. Mr. words, regardless of In other the court. testified on direct Scribner examination located, line is what the meander upon this determination was based was in government the federal intention of escarpment visible line of caused three fractional lots conveying appellants’ generally speaking flowing stream and upon of the water and an examina- action picked line I rocks again the above vegetation tion of area: deposition of lichen mosses had a Q. you interpret you How would or do interspersed the sand and fin- with them interpretation have an of this definition plants that I perennial er material you in order to enable apply it on the up- of a terrestrial would consider to be ground? variety. land attempt A. I to . if there find Mr. Scribner further testified are clear cut lines on the bank of the line he the natural or below the considered stream or lake. I vegetation examine the river con- ordinary high water mark of general determine the species, classifica- boulders, and sand de- large gravel tained find, vegetation tion of the perenni- I agricultural was not posits,.and suitable vegetation al such grasses particu- are Mr. Scrib- purposes. On cross examination larly important. shrubs, all, Certain vegetation again ner differentiated are valuable in determining boundary he considered as above and below the area upland between the and the natural and water mark ordinary high water mark. escarpment caused and defined Q. you When the flow of river: stated definition of mark, natural ordinary high water I be- whether or not Q. you And let me ask you lieve agricultural pur- mentioned any great differ- you picture notice poses? above that vegetation ence between A. Yes. line? line and below that Q. How does this your relate to inter- There is a difference. A. pretation of the definition? of that vegetation right [above] My A. impression agricultural pur- steadily line . . . becomes . poses for the determination of this bound- . . . more dense ary is land which could be cultivated for density of the the left it the or to crops or at least at the minimum used as to thin. steadily begins hay ground or relatively'high quality pas- Now, that there is appear it Q. doesn’t ture land. feature escarping topographical any there; is that correct? Q. Scribner, Mr. you what made decide very definite is a . There A. put the line you approxi- where have sand but be- escarpment etched mated it on that photograph? aerial nature very erosive cause of Exhibit No. [Plaintiff’s 22] It’s intermit- lasting. long it isn’t sand A. I started at the upstream end of the interrupted. tent picked channel and up a relatively undisturbed area and followed that down on cross ex- Further, testified Mr. Scribner . I started on the west side of the of land inundation periodic amination big island or the island area and attempt- of the natural alter the location would approximate walk the ed to boundary or aof river mark water thought I very proxim- close enough severe inundation unless ity of where I place would pur- agricultural for value the soil’s destroy doing water mark. poses: casually plant species this I identified of such land the inundation Q. Would growing. were I looked at the river days destroy up thirty for that were stones both above and below purposes? agricultural land for use picked, I the line that generally the— Merely flooding gravel necessarily. the stones and speaking, and rocks A. Not picked again the line I were any void of it destroy would not or mosses which would itself, type lichens indicate a of inundation water action enough a influence is severe to move has considerable de- water erosion boulders, large submerged value for as was testified agriculture. struction of here, periodic may deprive even inundation Q. explain Well that. pur- agricultural soil its value quiet Wave action in bodies of water A. a review poses. Based on careful agricul- destroy will value of land for testimony presented, the court holds that along in and purposes. tural Current sup- judgment of the district court is adjacent rivers will do the same thing. evi- ported by competent and substantial

dence. Appellants, however, maintain that Generally speaking, A. inundation “agricultural purposes” includes the raising by—that good of land has stand well of livestock. Since the disputed land has perennial plants for a established short by appellants been utilized as a heifer calv harmed, period of time be wouldn’t but ground, ing appellants argue that subjected might where the same land be above the line established by the district through to severe water action the force court as the natural or ordinary high water current, through wind or then the mark is suitable for “agricultural purposes.” deprived soil could be of its value for Although this court has judicially construed agriculture. agricultural pursuits in contexts, other “ag purposes” ricultural as used in I.C. 58- § testimony, on this Based 104(9) previously has never been defined. reasonably could find that The natural or ordinary high water mark of by Mr. as the natural established Scribner a river refers impressed to a line on the soil water mark the river on by the action of the water and contemplates Plaintiff’s Exhibit No. and Defendant’s vegetation test an aid in determining No. 51 was “the line which Exhibit context, its location. In this whether the impresses by covering on the soil soil is valuable for agricultural purposes periods for sufficient the soil of refers to the existence of vegetation and destroy agri its value for suitability soil’s for raising agricultural purposes.” 58-104(9). I.C. cultural § crops. Whether cattle could roam on the holding is upon The court’s based soil does not aid in determining the location particular present- facts and circumstances of the natural or ordinary high water mark. compo- ed in this case. Because of the soil’s Appellant’s argument rejected is therefore extremely sition and erosive action portion and this opin district court’s portion of the Salmon Riv- ion is affirmed. er, only land inundated for a small to year was held be below the natu- II. ral or mark topographical Given different river. fea- Appellants they next maintain that tures, composition or less soil erosive water the disputed prop have established title to may action the result have been otherwise. However, possession. its erty adverse in however, appeal, The issue on is whether opinion, memorandum the district ex court the demarcation appellants allege pressly stated that did not portion of this river water mark property theory title to the on the of ad presented. the evidence supported fact, possession. appellants object verse The evidence introduced below indicated testimony concerning to adverse ed at trial and water erosion had been that inundation claiming were possession they because not enough deprive in this area possession. severe property by to the adverse title destroy use soil of its will not be con Issues not raised below In an area where agricultural purposes. appeal, this court on sidered undergoing legal a detriment entails tive theory upon to the will be held parties by Idaho law. not sanctioned to the lower presented was the case 236, 506 Baugh, 95 Idaho Dunn v. court. Although judgment City v. of Lewi- (1973); Willows absolutely appel- that require P.2d 463 not court did (1969); cattle, require P.2d 120 it did ston, in their 93 Idaho lants fence lease alternatively obtain a Havens, appellants 444 P.2d that v. Williams in they chose not fence property if Carter, (1968); Frasier However, trial court made their cattle. (1968). This issue 437 P.2d 32 specific findings no of fact or conclusions is therefore not before argued below and establishing ques- law whether the appeal. this court district or not and never tion was in herd requir- judgment for its indicated the basis III. ing appellants fence or obtain a portion lease. Thus the judgment Finally, assign error to appellants pertaining unsupported by to this issue is judgment court’s portion of the district findings either of fact conclusionsof law. appellants to fence in their requiring either It is the conclusion that this trespass prevent cattle to their continued judgment must be and here- natural by is reversed. mark of river established authorizing their court or obtain lease Judgment part affirmed and reversed land. con occupancy Appellant also part. No costs allowed. by requiring appellants to fence tends SHEPARD, DONALDSON, J.,C. ap effectively land would their BISTLINE, JJ., concur. BAKES right pellant of the its cattle. either alterna- contend that They further

APPENDIX BISTLINE, Justice, specially concurring. point been careful to out that the holding of the Court here “is based upon particular concurring opinion am I facts and circumstances presented in this the trial Court, am not convinced that but I case.” rationale of opinion today is the line of ordi- determined properly that, testimony from Scribner, the Mr. of has water. Justice McFadden high nary this caveat: statute “Provided that reasonably could find that district court the this definition shall not be construed so as “was by Mr. Scribner line established the the water, change property to or vested affect ordinary and thus high line of the either state of or of sup- rights the of the Idaho judgment of is evi- by competent and substantial or Id. riparian property littoral owners.” ported dence.” is employed Depart- Mr. Scribner Lands and is chief of the Bureau of ment of out, points him, opinion ably according To Navigable As Court’s Waters. a visual observation con- task, from Mr. Scribner title testimony, quiet falls the his thought line he' of ordi- cluded rivers, involving lands Idaho’s actions be, applied and then high should nary water making vege- “the determination of the of vegetation a test to sub- theory of his own tation, line and where where the water is theory, his he applying In did stantiate it. ownership, it is in relation to our we think at point which seek to establish the not ownership.” the state’s vegetation entirely ceased be- terrestrial view, testimony improper was my inundation, of but differentiated cause predi- not have served a valid and should of amongst species the various terrestrial cate which to base determination of upon and below his vegetation growing above But, high of water. it was ordinary the line conclusion of location of preconceived objection, without and the trial received ordinary high line water. Counsel in con- be to be error court cannot said objected when Mr. Heckman’s Scribner for it, utilizing it as the basis of sidering fact identify (plaintiff’s exhibit asked to an was his decision. 123) listing was which various No. Mr. testified that he started Scribner vegetation which he species “collected statutory line of with that definition of high ordinary and water- natural high in his ordinary water effort to estab- pointed properly Counsel out that line.” witness, Scribner, boundary lish the river-side the Heckman assuming was Mr. water, line of This was included as a property. definition location amendment, that was precisely location issue part and the 1967 Sess. court was called upon trial which 236(9), 58-104, ch. to I.C. which § Laws did sustain the The court ob- resolve. powers and duties declares the of the State assuming that Mr. the court Scrib- jection, Board, that placed Land Board in su- up testimony “will so his connect ner pervision disposition or use of land in meaning has some Short here waters navigable the beds of “to the natu- later, objection renewed, was minutes ral water mark.” Id. Shortly after that again overruled. readily seen that Mr. Scrib- itWhile opinion was asked for his as to Mr. Scribner position required him to as- official ner’s plants below his grow what lake and riv- the boundaries certain water, testimony received 58-104(9) placed I.C. under which § erbeds objection. without jurisdiction of the supervisory Board, Mr. have felt Scribner should Land purpose For the limited statute respect the caveat of that sec- obligated involved, “natural forth, and, rather than devise tion set above line “to be the which the defined mark” type-of-vegetation interpretation of his own impresses covering on the soil section, he have given should due re- deprive periods soil sufficient statutory defini- agri- gard its value for to the source vegetation destroy its SS-HM^),1 Im- not show I.C. record does that he was purposes.” tion. The § cultural there mediately the definition follows after from whence definition came. informed presses containing complete covering text of the sentence on the soil 1. The it for sufficient periods reads: “The term ‘natural or or- the definition the soil of its dinary high destroy agricultural used be purposes.” mark’ as herein shall value for 58-104(9) (emphasis added). the water im- I.C. § defined be

803 to decision law rather legislature used in have been directed The definition body, with that but originate did botany guide attempt 1964 as his in his than to definition, from this Court’s adopted was extent of the domain determine the property rights riparian of which the one empowered Land Board became been both vested owners have or littoral of as a result the 1967 amend- to administer legis- The many years. however, for chose, determined apply and ment. He knowledgeable was quite obviously seeking lature statutory definition out distinc- Court, quarter over a of a what (which of have seemed reasonable may tions Lynch, in Driesbach v. 71 century ago, said vegetation of him) types might to which as 506, 446, 501, (1951), 234 448 P.2d belonging as the line of be classified water, the Court held that natural or where belong- and which as “[t]he high water mark is that line which legislature that line. The con- ing above impresses on the soil covering power on the no such State Land ferred periods sufficient the soil it for Board, admonished to and in fact the con- vegetation destroys its value for years 60 it has been trary. For over well- purposes.” agricultural accepted in Idaho that understood useable, vegetation test is in the agreed that case, the Court that mark, clearly of a discernible water absence the trial court deci- substantiated evidence any vegeta- terrestrial it is the absence of point reference to sion, with “both determining been the tion which has factor. ordinary high water line and or Close attention is also directed to Mr. to the absence reference with wherein, testimony in addition Scribner’s of land below the parcel each upon growing accuracy placement of his basing the ordinary high as the found line water, emphasized he (emphasis . . .” Id. add- (which the land he considered below ed). water) was the line of unsui- realized, may not have legislature agricultural purposes. again Here table for however, definition adopt- that the which it premised upon his conclusions were his own origin even earlier than had its Dreis- ed statute, interpretation of the and for land years ago, Almost 60 in Raide v. bach. qualify opinion in his as suitable for Dollar, (1921), P. 203 469 agricultural it purposes, would have to be rule, stated that same adopting first Court or, capable crops, of cultivation for at a Supreme the Missouri Court’s hold- it from minimum, utility “hay ground have Light- ex rel. Citizens’ Electric ing in State quality pasture relatively high land.” For Longfellow, Power Co. 169 Mo. ing & my part, I am unable to see that Mr. Scrib- (1902). Whether 374 or not the 69 S.W. ner, behalf anyone on of the state of knew that Court’s rule dated legislature Idaho, any way justified is in impressing legislature had well back statutory and court onto the definitions the law in Idaho been mind that had land must be of pasture “relatively many years; the caveat for settled land, Pasture land is high quality.” pasture clearly legislative shows amendment pasture it is nonetheless even property rights of recognition riparian a low though quality, perhaps it be of had owners become vested and littoral pasture If it will very quality. low any way not become unsettled should animal, agricultural purpose. such is an placing State Land Board in reason fortiori, pasture it will not And a even one lake and river beds. In other charge vegetation. it sustains animal unless not, words, amendment did nor did Concluding, suggest I also that the trial to, any change make whatever in purport premised court decision in all likelihood is existing law earlier declared in Raide upon faulty definition the line of ordi- in Driesbach. op- Just the reaffirmed nary high opin- water. In the Court’s lead this case. posite ion, Justice McFadden observes that so, Scribner, Mr. being as Director court here held that “land trial inundated Such Waters, Navigable year should only Bureau a small decision, as I read the it is parently, and below the natural or ordinary wholly to the sparsity vege- attributable of river.” water mark of the That it was high tation, types and the of vegetation as testi- year inundated for a small of the so fied to by Mr. Scribner. As a matter of immediately gives concern that such river law, records, under those it would seem that not, above, well the ordinary level is but is the secondary channel is part not a of the high The Salmon water. is not a River, of bed the Salmon but is a channel river, the record little-known and here ade- cut has been and continued the vicinity ques- shows that in the quately great spring runoffs, annual and it is clear- tion, In the spring it is fast river. annual ly great these flood waters rushing down- river, it is a torrential white-water run-offs ward which have moved boulders and many the rivers in as are of Idaho which carried away much loose soil. spring late annually fed in the and early are when the winter snows rapidly summer The language Ninth Circuit Court gallons melt into billions of water. Oth- Appeals a true statement of the law rivers, such as the and er Snake Portneuf in apparently should be repeated as a here Idaho, Kootenai southeastern caution particular case affirmed Boundary County, rise over- dramatically, today not be taken as establishing the law: banks, flowing their but these do not have For purposes of this appeal it is suffi- Salmon, as does the rapid descent cient appellants’ to state that theory is not the resultant hence do have force which founded on the mistaken assumption that the area in question. has in the Salmon spring (suf- annual floods of the river fered prior to the advent of Hoover high a time of all rivers is with There Dam), which covered valley from time water. The low time bluff, bluff to “ordinary constituted its spring the late high water” and that valley, from reg- fed summer, rivers are when early bluff, bluff to thus constituted the bed of upper at snows melting by the ularly By floods, river. eliminating these In those time of the mountains. elevations contend, appellants the Hoover Dam comes the time there gone, and are snows an change caused avulsive in the flow of time at the same Almost waters. lowof the river so that the United States as mountains, but come on snows new riparian owner did not take title to the does not melt. the snow change, and seasons flood plain. ordinary The time of water is not to Appellants’ definition of “ordinary high spring confused with the annual flood be water mark” is unsound. The District waters, however. These are times when concluded, Court and we agree: melts, turns and much warm snow weather “The ordinary water mark of a drastically, taking maybe rivers rise and the physical river is a natural characteristic peak, and 2 weeks so weeks placed upon the lands by the action of receding returns the river to recede. there, placed river. It is and the high water. its line implies, name from flow river and does not extend to the mind, that in it should be With noted that peak flow or' flood stage so as to in- years, the evidence showed in 2 here overflow on the plain, clude flood nor is peak flood waters did 1966 and stages confined the lowest secondary even enter the channel. not river flow.” years, waters of last 15 the Salmon with holdings This is in accord only aver- secondary channel an were Supreme Court. days put, the per year of 31 age —otherwise United Claridge, States v. 416 F.2d dry 11 months years in those channel (1969) omitted) (citations added). (emphasis about every This is the normal 12. out stage, in flood that the rivers are time how easy to understand

it is secondary channel to be could find Ap- water.

Case Details

Case Name: Heckman Ranches, Inc. v. State Ex Rel. Department of Public Lands

Court Name: Idaho Supreme Court

Date Published: Jan 4, 1979

Citation: 589 P.2d 540

Docket Number: 12316

Court Abbreviation: Idaho