Lambrix v. Frazier

171 P. 1134 | Idaho | 1918

MORGAN, J.

The permits of respondents and appellant, senior and junior respectively, call for the appropriation of the waters of Canyon Creek, which stream' divides, in its downward course, into two branches known as the East Fork and West Fork. Both places of diversion are located on the West Fork which the trial court found to be the main channel. The findings of fact, being supported by evidence sufficient, if uncontradicted, to sustain them, will not be disturbed because of conflict. (Davenport v. Burke, 30 Ida. 599, 167 Pac. 481.)

To the extent of their permit rights respondents are entitled to the use of the water of the creek flowing in the West Fork, notwithstanding a portion of it, originally diverted therefrom to the Bast Fork, was returned thereto by appellant. (Malad Valley Irr. Co. v. Campbell, 2 Ida. 411, 18 Pac. 52.) Respondents, having substantially complied with the terms of their permit, are the owners of an inchoate, contingent right (Speer v. Stephenson, 16 Ida. 707, 102 Pac. 365; Basinger v. Taylor, 30 Ida. 289, 164 Pac. 522), and having completed their works of diversion and application to such an extent that the water may be applied to the beneficial use intended, a writ of injunction was properly issued to restrain appellant' from interfering with such use and from thereby preventing respondents from ripening their incipient interest into a complete appropriation. (Allen v. Dunlap, 24 Or. 229, 33 Pac. 675; Jackson v. Jackson, 17 Or. 110, 19 Pac. 847.) This is true even if an injury to respondents was nonexistent at the time. (Fischer v. Davis (on rehearing), 19 Ida. 501, 116 Pac. 414.) In this respect respondents’ right, though only a consent to construct irrigation works and acquire real property (Speer v. Stephenson, supra), partakes of the nature of a vested right. (Merritt v. City of Los Angeles, 162 Cal. 47, 120 Pac. 1064; Inyo Consol. Water Co. v. Jess, 161 Cal. 516, 119 Pac. 934; De Wolfskill v. Smith, 5 Cal. App. 175, 89 Pac. 1001.)

Appellant’s objection that the decree is one quieting title only is not well taken. In effect the decree establishes nothing more than that the rights of respondents under their permit are prior in point of time and superior to the rights of appellant under his permit. Neither is appellant’s contention correct that the trial court could not have established the respective rights of the parties. The granting of relief to respondents depended upon the priority of their right being found. Such priority was alleged in the complaint and both injunctive and general relief were prayed for. The appellant answered with a denial, asserting a prior right in him-, self, and asking counter relief of the same character. The findings and decree are consistent both with the case made by the complaint and with the issues joined. (See. 4353, Rev. Codes; Stocker v. Kirtley, 6 Ida. 795, 59 Pac. 891.)

The decree is unnecessarily broad. It is not objectionable upon the ground that it is general in terms, for the rule is that decrees fixing rights of parties to the waters of a stream, though general in form, are binding only upon the parties and their privies. (Stocker v. Kirtley, supra; State v. Steiner, 58 Wash. 578, 109 Pac. 57.) The decree, however, must be construed in the light of the pleadings upon ivhieh it rests and the law governing the rights of holders of permits issued by the state engineer. ,

The relief to which respondents are entitled, under the complaint and findings of the court, is freedom from interference with the completion of their works, and the application of the water claimed to the beneficial use specified in the permit. They are entitled to freedom from interference only so far and so long as, in compliance with the law, they continue with their work and proceed to make beneficial application of the water.

The court found that respondents had constructed a reservoir and necessary conduits, canals and ditches, leading from it to the lands upon which the water was intended to be used under the permit, of sufficient size and dimensions to carry and convey the water to the lands. In view of that finding the decree, though not exact in its terms in defining the rights of the parties, is not so objectionable as to require reversal.

The judgment appealed from is affirmed. Costs awarded to respondents.

Budge, C. J., and Bice, J., concur.