55 P. 1020 | Idaho | 1898
Lead Opinion
— This action was brought to settle the rights of the various parties thereto to the waters of Cold Spring creek, in the county of Elmore. The case was heard by the-
In its findings of fact, the court, after finding the date of the appropriation of water by the various parties, and the amount ¡appropriated' by them severally, proceeds to declare the amount do be used on each several tract, and the time when the same may be used, and it is to this action of the court that the first .exception of the appellants goes. Counsel for appellants contend that when the court had found the fact of appropriation, and had fixed the question of priority and extent of appropriation between the various claimants, its powers ceased. Section 3155 of the Revised Statutes of Idaho is as follows: “'‘’The right to the use of running water flowing in a river, or stream, or down a canyon or ravine, may be acquired by appropriation.” Section 3159 is as follows: "As between appropriators, the one first in time is the first in right.” Section 3165: “All ditches, canals, and other works heretofore made, constructed or provided, by means of which the waters of any stream have been diverted and applied to any beneficial use, must be taken to have secured the right to the waters claimed, to the extent of the quantity which said works are capable of conducting, and not exceeding the quantity claimed, without regard to or compliance with the requirements of this chapter.” These sections of the Revised Statutes have been several times passed upon and construed (if any construction was required) by this court. (See Hillman v. Bardwick, 3 Idaho, 255, 28 Pac. 438; Geertson v. Barrack, 3 Idaho, 344, 29 Pac. 42; Kirk v. Bartholomew, 3 Idaho, 367, 29 Pac. 40.) Priority of appropriation having been established, as well as the amount of the water appropriated, and the beneficial use thereof, it seems to us that the functions of the court under the statute have reached their limit. For the court to dictate the manner in which the appropriator shall use the water so appropriated, so long as it is adapted to a useful or beneficial purpose, is going beyond its province. It is an interference with the right conferred by the statute. We have examined the cases cited by counsel for respondents, but we are unable to seé their applicability to the case at bar, or wherein they conflict with the rule heretofore laid down by this court.
Upon the trial the defendant Stanfield was permitted, over the objection of the appellants, for the purpose of establishing priority of appropriation of the water of Cold Spring creek, to .show the following facts: “That prior to May 1, 1869, Jacob Stover and Ely Montgomery settled upon the land afterward known as the ‘Cold Spring ranch/ now owned by the defendant Stanfield, and made improvements thereon. In the spring of that year they constructed a ditch, and diverted from Cold Spring creek a quantity of water sufficient for the irrigation of these lands; the quantity actually used, needed, and required upon the land under cultivation and for hay being one hundred ••and thirty-six inches, measured under a four-inch pressure. Stover and Montgomery continued in possession of the land, using said amount of water in the cultivation thereof, until the spring of 1875, at which time they sold the improvements on the land to O. S. Glenn for the consideration of $2,000. No papers were executed, nor was any transfer or conveyance in writing made by Stover and Montgomery, or either of them, to •Glenn, of the land, the improvements thereon, or the water rights appurtenant to or used with said land; neither was there -any evidence of a transfer or conveyance in writing by Stover
What we have here said applies as well to the proof offered by the defendant Ida McGinness in relation to her claim, to wit, a verbal transfer from Harvey Glenn. The deed subsequently procured by her from Glenn, some fourteen years after he had left the country, could only have effect from its date.
The judgment of the district court is reversed, and the cause remanded to the district court, with instructions to correct its findings of fact and modify its decree in accordance with the views herein expressed; the costs to appellants.
Rehearing
ON REHEARING.
— The petition for rehearing filed by tbe respondents bas been carefully considered. It concedes tbe correctness of tbe rule announced in tbe original opinion that the trial court erred in restricting tbe use of the water appropriated by tbe appellants during certain months, but insists that we erred in holding that an oral contract of sale of a possessory claim upon public lands is not admissible in evidence against a claimant whose right is anterior to such oral contract. Upon this point we are still satisfied of the correctness of our conclusion, which we cannot change without nullifying provisions in our statutes. No good cause appearing why, a rehearing should be granted, the same is hereby denied.