101 P. 1059 | Idaho | 1909
This action involves the right of the appellants to shut off the waters of a stream or body of water called Watson slough, in Bingham county, and to prevent the waters flowing down the stream in the natural channel, Watson slough appears to be a natural channel diverting the waters of Snake river from the main stream at a point on the west side of the river about two and one-half miles southwest from Blackfoot, in Bingham county, and flowing thence in a southwesterly direction, for a distance of about eight miles and then emptying back into the Snake river. This slough or stream flows- through respondent’s lands. About the year 1885, a man named Watson duly and regularly made an appropriation of a large volume of the waters of Snake river for the irrigation of agricultural lands. This appropriation was made at the head of Watson slough. The water to be diverted from the Snake river through Watson slough and carried down through the main channel of Watson slough for several miles and on past the premises now occupied by respondent, and thereafter diverted from the Watson slough by means of a canal through which the waters weie carried and distributed to the several tracts of land to be irrigated. Watson made some slight improvements in the way of lowering the bed of the channel and removing sand and gravel bars, and also constructed a small wing dam in the Snake river in order to divert a larger volume of water into Watson slough than had formerly been flowing through that channel. Watson and his successors in interest,
When the case was called for trial, a jury was impaneled and special interrogatories were submitted to them. These interrogatories were specifically directed to the character of the Watson slough, — as to whether or not it was a natural
“The jury is instructed that a watercourse is a stream of water flowing in a definite channel, having a bed and sides or banks, and discharging itself into some other stream or body of water. The flow of water need not be constant, but must be more than mere surface drainage occasioned by extraordinary causes; there must be substantial indications of the existence of a stream, which is ordinarily a moving body of water.”
The jury answered the interrogatories in favor of the contention that Watson slough was and is a natural watercourse. The court adopted the findings of the jury and made additional findings in accordance therewith. The court, among other things, found that:
“Watson slough is now and at all times herein mentioned and from time immemorial has been a natural watercourse, diverting water from the Snake river, on the west side thereof, about two and one-half miles southwest of Blackfoot, in Bingham county, Idaho, and flowing through the said described land of the plaintiff, and on in a general southwesterly direction, emptying its waters into the said Snake river, the said watercourse being about seven or eight miles in length.”
There was a sharp conflict in the evidence as to the natural character of Watson slough, — as to whether or not it had always carried a stream of water or whether it was dry during certain seasons of the year. It must be conceded, however, that much of the evidence sustains the contention that it is a natural watercourse and has from time immemorial carried a constant stream of water. The court found in favor of this contention. It being conceded by both parties that the court entertained the correct view of the law as to
In the further discussion of .the case, it must be remembered that the respondent has not alleged or established any appropriation or diversion of the waters of this stream for any useful or beneficial purpose. He makes no claim to the water by reason of any appropriation or diversion in accordance with the statute, but rather bases and asserts his right on the fact that he is a riparian proprietor, and that as such he has for more than seventeen years been using the water for “domestic, culinary and household purposes and for the use of his livestock, ’ ’ and that the waters of the stream have continuously flowed through his lands “moistening the same.” Whatever rights, therefore, respondent has established, are wholly dependent upon his proprietary rights as a riparian owner of lands through which this stream flows. It must also be noted that the claim respondent has asserted is not adverse to or in conflict with appellants’ appropriation or right of diversion. Appellants’ appropriation is for irrigation purposes. The cause of respondent’s complaint is not that appellants are diverting and using the waters under their appropriation, but, on the contrary, that when they are not diverting and using the water under their appropriation for irrigation purposes, they are cutting off the natural supply of the stream and preventing the water of the stream from flowing down the channel thereof in its natural course. This is not a contest between two appropriators of water, because neither party either asserts or establishes any right or claim to the water by reason of appropriation or use at the time and for the period involved in this action. The
It is well established in this state, and needs for its support no argument or citation of authority, that the waters of the state are subject to appropriation and diversion in the manner prescribed by law, and that priority of appropriation gives the better right to the use of such waters as between the appropriator and a riparian owner. Sec. 3 of art. 15 of the constitution provides:
“The right to divert and appropriate the unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right as between those using the water.....”
This constitutional provision was simply an enactment into the organic law of the state of a rule that had been enacted by the territorial legislature and recognized by the courts of the territory. The question of conflicting rights arising between an appropriator and a riparian proprietor was considered and passed upon by the territorial supreme court in Drake v. Earhart, 2 Ida. 750, 23 Pac. 541, subsequent to the adoption of the constitution and immediately prior to the admission of the state. The court there held that the claim of a riparian proprietor to the use of water of a stream flowing through his land, which is not based upon appropriation under the territorial laws, is inferior to that of a prior appropriator of the waters of such stream. The court in that ease seems to have been very careful not to hold that a riparian proprietor had no rights, as such, at all, but rather that his rights as a riparian proprietor, whatever they might be, were inferior to the rights of an appropriator of the waters. That rule has been uniformly recognized by the courts of the state ever since. The legislation of the state, even from the early territorial days, down to the present.
A riparian proprietor in the state of Idaho has no right in or claim to the waters of a stream flowing by or through his lands that he can successfully assert as being prior or superior to the rights and claims of one who has appropriated or diverted the water of the stream and is applying it to a beneficial use. To this extent, therefore, the common-law doctrine of riparian rights is in conflict with the constitution and statutes of this state and has been abrogated thereby.
Another question, however, must be considered in this case, for the reason that although the appellants are appropriators of the water of this stream, and, indeed, of the entire volume thereof, still their point of diversion from Watson slough is at a point down the stream below respondent, and they are accustomed to carry the water by and through respondent’s lands. It is also true that their water appropriation is from Snake river at the head of the slough. When they are not using the water, and during the non-irrigation season, the water naturally flows down the channel of the stream through and by respondent’s land. Appellants shut off the waters at their headgate at the head of this slough after the close of the irrigation season and during the period of time and season not covered by their appropriation, and during which they were not applying the water to any
“The common law of England, so far as it is not repugnant to, or inconsistent with, the constitution or laws of the United States, in all cases not provided for in these Rev. Codes, is the rule of decision in all courts of this state.”
In Shephard v. Coeur d’Alene Lumber Co., ante, p. 293, 101 Pac. 591, decided at the March (1909) term of this court, it was held that “The right of ingress and egress to and from the lands of a riparian owner is a property right, and must be respected, and for the protection of which the courts will afford a remedy.”
Sight should not be lost of the correct principle involved in such cases, namely, that a riparian owner, as such, acquires no right to the waters flowing by or through his lands that is prior or superior to that of a locator, appropriator and user of such waters. In other words, "there is no such thing in this state as a riparian right to the use of waters as against an appropriator and user of such waters who has pursued the constitutional and statutory method in acquiring his water right. In order to acquire a prior or superior right to the use of such water, it is as essential that a riparian owner locate or appropriate the waters and divert the same as it is for any other user of water to do so. But a riparian owner still retains such right to have the waters flow in the natural stream through or by his prem
The decree in this case, adjudges the appellants to have only such right in and to the use of Watson slough as is necessary and essential to carry the water for their appropriation from the head of the slough to the point of diversion and thence into their canal. It further adjudges and decrees that the appellants shall not shut off or divert the water at the headgate at the upper end of the slough at any time or for any purpose except upon application to the court for such times as may be absolutely necessary for cleaning out and repairing the channel of the slough in order to keep it in such condition that it will carry the water required by appellants’ appropriation. There can be no doubt of the right of appellants to employ such means as may be necessary and essential to keep this channel clear and in repair for the purpose of carrying and conveying the necessary body of water to meet the demands of their appropriation. This right, however, must be exercised with due diligence and with proper respect for the rights of other appropriators, and also of riparian proprietors as indicated in this opinion. They may not arbitrarily and without cause shut off and divert the flow of the stream. Both the evidence and findings in this case indicate that the water was shut off on October 15, 1907, and that it remained so until the commencement of this action on December 21st. This appears to have been an arbitrary action on the part of appellants, and not necessary or essential for the doing of work or making repairs on or along the channel of the stream. Work under such circumstances necessitating the