77 P. 645 | Idaho | 1904
This action was commenced in the district court against numerous appropriators and users of the waters from Big Lost river in Blaine and Custer counties. The controversy on this appeal arises over the peculiar situation and condition of the waters of that stream. The river rises far up in the mountains and during the high or flood waters in April, May. and June each year flows in a continuous surface stream from its source to a few miles below Arco in Blaine county, a distance of upward of seventy-five miles. It is shown that about twenty-five or thirty miles below Arco is a place called the "Narrows,” where the valley through which the stream flows is only about one-fourth of a mile wide, the bedrock coming to the surface there and the mountains closing in, and above which point the valley widens out into a basin some eight miles wide. This valley or basin is covered with a thin soil, and contains an unascertained depth of gravel deposit and extends for a number of miles up the stream from the Narrows. It appears that after the close of the flood season or high-water period the stream flowing through this valley above the Narrows gradually lessens until it finally disappears for a distance ranging from eight to fourteen miles above the Narrows. During the entire season, however, the water rises at the Narrows
If the entire volume of water should be diverted from the stream above the point where it sinks and applied to the lands in the irrigation thereof, and by the process seventy-five per cent should be lost, and only twenty-five per cent ever reach the stream again, it would be difficult to understand by what process the stream would remain as large at the point where the water rises as it would have been had the seventy-five per cent of the original flow not been diverted and lost. This court has uniformly adhered to the principle announced both in the constitution and by the statute th^t the first appropriator has the first right; and it would take more than a theory, and, in fact,
Appellants complain of the action of the trial court in incorporating in the decree in this case an order perpetually enjoining them from in any manner interfering with or diverting or using the watérs of Lost river except in accordance with the terms of the decree. By the decree the time was fixed from which each appropriator and claimant was entitled to have his right date and the number of inches to which he was entitled. It is the usual and approved practice in this state in all water eases where a decree is entered establishing the rights and priorities of the parties litigant to incorporate in the decree an order in the nature of cross-injunctions restraining each and every party thereto from in any wise interfering with the use of water by any other party thereto as fixed and established by the decree. That is what was done in this case, and we think it was proper to incorporate such an order in the decree.
A somewhat similar theory as to the storage and percolation of waters was advanced in the case of Cartier v. Buck, 9 Idaho, 571, 75 Pac. 612, and considered by this court at the February, 1904, term. In referring to the injunctive order contained in the decree, Mr. Justice Stockslager, speaking for the court, said: “Before the plaintiff in the lower-court could obtain injunctive relief it was incumbent upon him to show that the use of the waters of Camas creek,, or some of its tributaries, by the defendants, prevented the water flowing down to him in the natural channel* and also that, had they not disturbed it, it would have found its' way to his premises.” The right to the use of forty thousand inches of water from the Big Lost river was settled and: decreed in this suit while the stream only carries nine thousand
Many of the answers given by these witnesses on cross-examination are, to our minds, irreconcilable with their general conclusions. Since the trial court heard all the evidence and found against the theories of appellants, we must conclude that he understood them, and we think his findings and judgment on that point are correct. The judgment of the trial court should be affirmed, and it is so ordered. Costs awarded to respondents.