125 P. 208 | Idaho | 1912
Frank Marshall, the respondent, brought this action in the district court against Winia Smalley, Henry Smalley, John R. Newton and Samuel T. Hamilton for the purpose of condemning a right of way for a ditch and power-house and other buildings required in connection therewith across the land asked therewith. The land across which such right of way is asked is described as follows: Lot 3 of see. 11 and Lot 1 of sec. 10, Twp. 9 S., Range 15 E. The defendants named in the complaint did not appear in said action, but the appellant herein, the Niagara Springs Orchard Company, Ltd., applied to be made a party defendant, and was permitted to do so, and filed an answer setting forth that said defendant was the owner of the property described in the complaint, the same having been transferred, to wit, by the defendants named in the complaint.
It appears from the record in this case that the title to the property described in the complaint, part of which is involved in this action, was granted by the United States, by patent, to the predecessors in interest of the appellant, January 17, 1895, and December 1, 1897, and that the title thus acquired, by proper conveyance passed to the appellant on January 9, 1911. It also appears that lot 1 of said see. 10 and lot 3 of sec. 11 extend from the north shore or water line of Snake river to the line lying upon the lands which extend from the top of the rimrock of Snake river, and said lands include a part of high lands at the top of the rimrock and all lands lying between the rimrock and the north shore of Snake river; that the waters of Smalley springs rise and emerge from the earth at the foot of the rimrock and wholly and entirely are within lots 1 and 3, and no part or portion of the springs or waters or streams is outside of lots 1 and 3.
It also appears that respondent made application to the state engineer for a permit to appropriate the waters flowing from Smalley springs and the natural stream of water leading therefrom, all situated and being upon the lands described in the complaint, and that the state engineer granted such permit in accordance with the application of plaintiff: and the laws of the state of Idaho relating thereto, and it was issued to him for power purposes for the pur•pose of creating power for lighting, heating, manufacturing and motive power. This permit of the state engineer was dated August 30, 1909, and was granted upon a condition inserted in such permit as follows: “This is to certify that I have examined the within application for a permit to appropriate the public waters of the state of Idaho and hereby
The question presented on this appeal, and upon which a reversal is asked, is: Can an appropriation of water upon private land be initiated by a trespass upon private property, and is the attempted appropriation void as against the land owner whose land has been trespassed upon?
It is the contention of the appellant that the action to condemn land for a power site, as alleged in the complaint, cannot be maintained for the reason that the plaintiff has not acquired any water right upon which to base such action, for the reason that he acquired no appropriation nor initiated any legal right to appropriate, by virtue of the permit, based upon a trespass upon private land.
It is the contention of the i*espondent, however, that the permit issued to the respondent gave to him an inchoate right to the waters of the stream at the point described in the application and the permit, and in making such application for the permit the respondent was not a trespasser upon the land of the appellant and made no entry upon said land, but, on the contrary, the respondent was pursuing the statutory remedy prescribed, whereby he might perfect his inchoate right to the water, by condemnation proceedings.
Sec. 3, art. 15 of the constitution of the state declares: “The right to divert and appropriate the unappropriated waters of any natural stream to beneficial uses, shall never be denied. .... ” And see. 1, art. 15, provides: ‘ ‘ The use of all waters now appropriated, or that may hereafter be appropriated for sale, rental or distribution; also of all water originally appropriated for private use, but which after such appropriation has heretofore been, or may hereafter be sold, rented, or distributed, is hereby declared to be a public use, and subject to the regulation and control of the state in the manner pre
“Water being essential to the industrial prosperity of the state, and all agricultural development throughout the greater portion of the state depending upon its just apportionment to, and economical use by, those making a beneficial application of the same, its control shall be in the state, which, in providing for its use, shall equally guard all the various interests involved. All the waters of the state, when flowing in their natural channels, including the waters of all natural springs and lakes within the boundaries of the state are declared to be the property of the state, whose duty it shall be to supervise their appropriation and allotment to those diverting the same therefrom for any beneficial purpose, and the right to the use of any of the waters of the state for useful or beneficial purposes is recognized and confirmed.’ ’
See. 3242 provides: “The right to the use of the waters of rivers, streams, lakes, springs, and of subterranean waters, may be acquired by appropriation.”
Sec. 3243 provides: “The appropriation must be for some useful or beneficial purpose, and when the appropriator or his successor in interest ceases to use it for such purpose, the right ceases.” •
Sec. 3253, Rev. Codes, provides the procedure by a person who intends to make an appropriation under the statute for a permit to appropriate the waters of the state when flowing in their natural channels, including the Avaters of all natural springs and lakes within the boundaries of the state. This section, among other things, requires that “any person, association or corporation hereafter intending to acquire the right to the beneficial use of the waters of any natural streams,
It clearly appears from the application required by this statute that such application must state facts which can only be secured by an entrance to the place where the appropriation is made and a survey of the premises and surroundings at the point of diversion and plan of improvement, and also a survey of the realty to be taken for dams and ditches to be used in appropriating the water to a beneficial use, and especially in a case where it is necessary to construct buildings and other works necessary for the utilization of the water for power purposes. Plans and maps are required to be prepared showing the character and location and dimensions of the works and the area and location of the lands proposed to be irrigated or otherwise used. It would be impossible to comply with this provision of the statute unless the person in
Under the provisions of see. 3254, Rev. Codes, “The application so indorsed shall constitute a permit, and shall be returned to the applicant, and he shall be authorized, on receipt thereof, to proceed with the construction of the necessary works for the diversion of such water .... to a beneficial use and to perfect the proposed appropriation.”
In the case of Speer v. Stephenson, 16 Ida. 707, 102 Pac. 365, this court had under consideration the right acquired by a permit granted by the state engineer, under the provisions of the original act passed by the legislature in 1903, Sess. Laws 1903, p. 223, and in the opinion in that case says: “The permit thus provided for took the place of the posting of notice as required under the act prior to 1903, and merely gave the applicant an inchoate right which could ripen into a legal and complete appropriation only upon the completion of the works and the application of the water to a beneficial use. The right given by the permit is merely a contingent right, which may ripen into a complete appropriation or may be defeated by the failure of the holder to comply with the requirements of the statute.
“The permit, therefore, is not an appropriation of the public waters of the state. It is not real property under the statute. (Rev. Codes, sec. 3056; Ada County Farmers’ Irr. Co. v. Farmers’ Canal Co., 5 Ida. 793, 51 Pac. 990, 40 L. R. A. 485.) A permit, however, is the consent given by the state to construct and acquire real property. In order to acquire a permit the statute provides that the person, association or corporation, intending to acquire the right to the benfeficial use of the waters of any natural stream, etc., before comi\enc-ing the construction of such works, shall make application^ to the state engineer for such permit. Certain facts are required to be stated in the application.”
As shown by the facts in this case the appellant owns all the land on both sides of the channel of water from the place the water comes from the rimrock until the channel ends and the water empties into another stream. It is true that the appellant has made no effort whatever to appropriate the water of said stream or to apply such water to any beneficial use, and in this action the appellant is making no claim whatever to said water by reason of any appropriation or any supposed riparian ownership of the same. But, notwithstanding such facts, it is the appellant’s right by reason of his ownership of the land to have exclusive possession of said land, and said owner is protected against any right that is attempted to be acquired by trespass thereon in the way of an attempt to appropriate the water running across said land, and neither the respondent nor any other person can divert such water without entering upon and leading it across the lands of the appellant, or using the lands of the appellant in distributing the power created by the use of such water, and committing a continuing trespass upon the premises of the appellant.
Mr. Wiel, in his third edition of Water Bights in Western States, vol. 1, chap. 10, discusses this question generally, and the decisions of .the courts of several states and the federal courts passing upon this question have been collected. In the text the author recites the different rules that have been announced by the various decisions, and from such discussion it clearly appears that the weight of authority and better
In the case of Prentice v. McKay, supra, the supreme court of Montana reviews a number of cases bearing upon this subject and says: “If Mrs. Prentice made a valid appropriation of water upon the private lands of S. C. Prentice, she must have acquired an easement in his lands, and, if she did acquire such easement, she must have done so by grant from S. C. Prentice by condemnation proceedings or by prescription. But the record here fails absolutely to disclose that Mrs. Prentice ever resorted to condemnation proceedings, or ever received a grant of the easement or acquired it by adverse user.” In this case the court held that the transaction between Mrs. Prentice and S. C. Prentice amounted only to a license which gave the right to take the water from the springs and streams to her land, and that such license was not coupled with any interest or for valuable consideration paid, and was therefore revocable at the pleasure of the licensor or his successors, and that the action in this case in obstructing the use amounted to a revocation. In that case the court cites the ease of Alta Land Co. v. Hancock, 85 Cal. 219, 20 Am. St. 219, 24 Pac. 645, and also quotes with approval from Smith v. Denniff, 24 Mont. 22, 81 Am. St. 408, 60 Pac. 398, 50 L. R. A. 741: “One may not acquire a water
In the case of United States etc. Co. v. Gallegos, 89 Fed. 770, 32 C. C. A. 470, the United States court of appeals in discussing this question says: “The appellant owns all the land on both banks of this river. Regardless of its right to the water, it has the undoubted right to the undisturbed and exclusive possession of its land; and the appellee can divert no water without entering upon and leading it across this land, and committing a continuous trespass upon it.” The court' in further discussing the constitution of the state of Colorado announces that the constitution and statutes of that state do not give one the right to make an appropriation against a land owner by trespass on his land.
In the case of Le Quime v. Chambers, 15 Ida. 405, 98 Pac. 415, 21 L. R. A., N. S., 76, this court in discussing the right to appropriate water from a spring says: “If the land on which this spring was located had already been patented before the location by appellants, then a different question would arise, because appellants would have been trespassers in entering upon the land for the purpose of locating, appropriating and diverting the water, unless they first had acquired a license or easement so to do.”
In Swank v. Sweetwater Irr. Co., 15 Ida. 353, 98 Pac. 297, in discussing the right of the owner of a water right to enter lands owned by another party, and to construct ditches and channels across such lands, the court says: ‘ ‘ The fact that a party has a water right gives him no right to enter the lands of others for the purpose of constructing ditches and canals across them, except over public lands of the United States. He must obtain that easement and right of way
If, then, under the provisions of sec. 3253 of the Rev. Codes, a person intending to make an appropriation is required to make surveys and prepare maps and plans in order to make a proper application, and in order to comply with such provisions of the statute, it is necessary for such applicant to enter upon the lands surrounding the place where the appropriation of water is to be made, and such lands are owned by private persons, and such permit cannot be obtained by agreement between the applicant and the owner or owners of such adjoining and surrounding land, then it is incumbent upon the applicant, in order to justify an entry upon such lands, to proceed under the statute and condemn such right or easement. That was not done in this instance, and the respondent herein was a trespasser in initiating his proposed appropriation, and the mere fact that the state engineer granted the permit in no way conferred any right upon the respondent to enter upon private land for the purpose of making an appropriation.
Under this rule it is clear that the trial court erred in its finding of fact that the respondent is the owner and in possession of a water right for power purposes, granted to him under the permit of the state engineer of the state of Idaho from Smalley springs. This must follow by reason of the fact that the permit issued by the state engineer confers no right to enter upon private land for the purpose of initiating an appropriation of water. As to the second finding of the trial court, we are inclined to think that the trial court was correct in finding that Smalley springs, or the waters thereof, or the stream flowing therefrom, was not owned by the appellant, and that the waters of said springs at all times have been owned by the state of Idaho, subject to appropriation, but that such finding is incorrect in the conclusion that such water was subject to the right and use of the plaintiff under the permit issued by the state engineer. The court, under the view that we have expressed, was in error in finding 3, that the respondent did not attempt to make his appropria
It is also urged by counsel for appellant that the .permit issued by the state engineer was of no effect after the expiration of sixty days from the date of issue, because the respondent, to whom such permit was issued, failed to file a bond within sixty days from the date of the permit. In view of the opinion of this court that the permit was of no force or effect by reason of the fact that it was based upon a trespass, it is immaterial whether the bond was filed or not, and it is unnecessary to pass upon the objection made in disposing of this case.
The judgment in this case is reversed, and the costs are awarded to the appellant.
