186 P. 710 | Idaho | 1919
Lead Opinion
This is an action brought in Owyhee county to determine the rights to the use of the waters of Catherine Creek and its tributaries, all situate in that county, and the priorities of those rights between the original parties and such as might be properly brought in, and to restrain appellants from using the waters of said streams to the detriment of respondent.
All the appellants, some of whom were originally made defendants, and some of whom were afterwards, brought in, by appropriate pleadings joined issue with respondent and by cross-complaint claimed rights to divert and use waters of the different creeks adversely to him. Fot convenience of the parties the trial was had in Ada county. A decree, fixing the priorities of appropriations and amount of water each party is entitled to use, and enjoining the parties from in any way interfering with the rights of the prior appropriators was rendered by the trial judge and entered. Motions for a new trial were made by appellants and, after the same were heard, the original decree was modified and the motions overruled. Appeals from the judgment and the order overruling the motions for a new trial were perfected.
Among the many errors assigned by counsel representing the different appellants are: That the findings of fact as to the amounts of water and priorities of the respondent are contrary to and not justified by the evidence in the following particulars: That the evidence shows neither respondent nor his predecessors applied all the waters awarded to him to a beneficial use within a reasonable time after appropriation; that respondent’s predecessors lost any priority they had in the right to use certain of the waters by their failure to use said waters for beneficial purposes for a period of time, prior to the commencement of the action, sufficient to work a forfeiture or abandonment, while appellants, during such period, continually used said waters for beneficial purposes, adversely .to-respondent, thereby acquiring prescriptive rights;
The record on appeal contains approximately 1,200 pages of transcript of testimony; the trial lasted from December 2 to December 16, 1913; upwards of forty witnesses were examined, much documentary evidence was introduced and the histories of the different rights involved were gone into from their inception, some as far back as the year 1864, with the result that there is much conflict in the testimony. From an examination of the evidence the conclusion is inevitable-that there is sufficient proof to sustain each and all of the-findings of fact. It is .the rule in this state that a decree-will not be disturbed because of conflict in the evidence if the
Special consideration has been given to assignment of error No. 6, which is in the following language: ‘ ‘ That the district court erred in failing 'and refusing to specially find the method and manner of defendants- Neiss & Torrance in appropriating the waters of Pickett Creek; the ditch through which it was appropriated, and likewise the original ditch of plaintiff’s predecessors, appropriating the waters of Pickett Creek for use on the Tim Shea ranch; the land covered by said ditch and watered from it, the present method of obtaining water from said Pickett Creek on the lands formerly covered by the Tim Shea ditch and the lands covered by the Pitman ditch, now used by plaintiff in lieu of said Tim Shea ditch; and likewise erred in not so specially finding in the findings of fact and so announcing in the decree that the right of said Neiss ■& Torrance was and is superior in time and right to the waters'of said Pickett Creek, used upon said Tim Shea ranch, than the right of plaintiff, ’ ’ for the reason that counsel for these appellants, in their brief, insist that there is no evidence justifying the award to- respondent of waters from Pickett Creek of date as early as February 14, 1870, to irrigate 53 acres of land, and to appellants, Neiss & Torrance, of date as late as April 1, 1882, to irrigate 72.76 acres, and that because of a -change in the point of diversion made by -respondent in 1910, by taking water through what is referred to in the testimony as the Pitman ditch instead of the so-called Shea ditch, he is enabled to obtain the use of water which rightfully belongs to appellants, Neiss & Torrance.
The findings and decree disclose that no right to use water is given respondent under that priority which he, according' to the evidence, did not have before the time of diversion through the Pitman ditch; that appellants, Neiss & Tor-
Neiss & Torrance are the successors in interest of George Ulrich to a right to use water from said creek, and are awarded the right to the use of 363.80 inches of water for 72.76 acres irrigated area on the SB. % °f NB. NB. % of NE. %, and NW. % of NE. %, see. 25, twp. 4 S., R. 1 W., B. M. of date April 1, 1882. Ulrich, according to his own testimony, as a witness for appellants, in the year 1882
It is claimed in behalf of appellant, Nora Linehan, that she is entitled to water to irrigate 53.22 acres of land she had under cultivation within the ’hereinafter described” subdivisions and that she ought to have been given a priority over appellant Hardiman. In support of these contentions it is urged, first, that eighteen acres of the cultivated land of said Nora Linehan were lost sight of entirely and that she was decreed no water for them from any source or from any date; second, that her priority on Pickett Creek should date from 1874. The assertion that eighteen acres of the cultivated land were lost sight of is not, however, borne out in the findings and decree. By the latter she is awarded 68.20 inches of water from Bates Creek of date April 1, 1876, appurtenant to the SW. y4 of NW. %, see. 28, and SE. % of NE. 14, sec. 29, Twp. 4 S., R. 1 W., B. M.; for 13.64 acres irrigated area, being an appropriation by Patrick Linehan, whose successor she is, and 117.25 inches of water from Pickett Creek of date April 1, 1880, for water appurtenant to the NW. % of SW. %, see. 28, and NE. % of SE. see. 29, same township and range; for 23.45 acres irrigated area, being an appropriation by said Linehan, these two tracts of land'being known as the homestead, and 86.90 inches of water from Bates Creek of date April 1, 1907; appurtenant to the SW. % of NE. % and SE. % of NW. 14, said sec. 29, known as her desert entry, for 17.38 acres irrigated area. The amount and priority of this last award is positively established by the evidence of appellant Linehan and her witness Franklin, who surveyed the tract. She testified that she
One of the assignments of error is in the following language: “The court erred in its findings of fact and the decree based thereon in awarding three inches of water for every acre of cultivated land on the part of the plaintiff, or in awarding to plaintiff in the low-water season, any other, further or greater amount than % of an inch to the acre of land cultivated.” In support of this it is urged that as a matter of public policy the courts should confine the users of water to the lowest limit; that the legislature and this court has recognized the propriety of this doctrine. We are in full accord with the declaration of the legislature on this subject and reaffirm what has been said thereof in Stickney v. Hanrahan, 7 Ida. 424, 63 Pac. 189. However, in this case the record discloses that the parties entered into the following stipulation: “ .... It is now agreed that the lands of the plaintiff require three inches of water per acre continuous flow, measured under four-inch pressure, for the proper irrigation and cultivation. That the lands of each and every of the defendants and cross-complainants require for their proper irrigation and cultivation five inches per acre continuous flow under a four-inch pressure. This stipulation, it is understood, is not to in any wise affect the decree herein-before refeiTed to entered in the ease of Michael Hyde v. William and Patrick Hardiman. It being further understood that the decree referred to has no relation to parties other than the parties to the decree and their privies and successors in interest.”
‘ It is claimed by respondent that 'his interests were adjudicated between his predecessors and appellant Hardiman in a decree entered April 16, 1898, fixing their respective priorities. Hardiman was brought into this suit at the instance of other users of water and appears by separate counsel. In his answer and cross-complaint he claimed a right to the use of the waters of Pickett Creek, dating his claim of priority of October, 1865, and a right by prescription to water flowing from a spring arising on his land, and he also set forth the decree above referred to, asked to have it modified and his right to the use of water declared prior to all others. v
"With the exception hereafter noted, the errors assigned in behalf of this appellant all go to the sufficiency of the evidence t”o sustain the findings and are covered in the discussion of those of the other appellants. The exception is the assignment that the decree entered in 1898 is not res ad,judicata, for the reason that “no judgment ean be pleaded as an estoppel or res adjudicata unless it was pronounced by decision of the court upon the merits and is his conclusion upon the facts after a final hearing of the case. ’ ’ While this may be a general statement of the rule, it seems to have been improperly construed by counsel. The term “upon the merits” in this connection means on a matter of substance, as distinguished from matter of form; the real or substantial grounds of action or defense, in contradistinction to some technical or collateral matter raised in the course of the suit (27 Cyc. 483), and “after final hearing” means after the cause is finally submitted to the court for decision.
“As between parties sui juris, and in the absence of fraud, a judgment or.decree of a court having jurisdiction of the
The judgment and decree pleaded by this appellant was entered on stipulation of facts between the parties, after complaint and answer were filed. In these pleadings the very matters adjudicated were alleged and denied. By the decree appellant was awarded the right to use certain of the waters involved in this suit and of which he has had the benefit for many years. The identical water rights involved in that suit, as well as the right to use additional water, is involved in this. The fact that in this suit other parties questioned appellant’s water rights does not prevent the former decree being res adjudicata of the rights therein involved as between the parties to that suit. The test seems to be the identity of the rights sued for, the identity of the cause of action, and the identity of the parties. (Kinney on Irrigation, 2d ed., sec. 1563.) These three elements having been established, the trial judge correctly held that as to the water rights involved in the former suit, the decree entered therein was valid and binding, as between appellant Hardiman and respondent, and properly made such disposition of the rights not therein involved as the evidence and pleadings in this case justified.
No reversible error being found, the judgment and order overruling the motions for a new trial are affirmed. Costs are awarded to respondent.
Rehearing
ON REHEARING.
Upon the application of appellants William Ñoeppe and J. F. Carothers, a rehearing was granted in so far as their right to the nse of the waters of Brown Creek is concerned.
In the petition it is alleged inter alia that the court overlooked what these appellants consider practically positive evidence of the abandonment by the respondent and his predecessors of the waters of Brown Creek. We are satisfied that this contention is not well taken, and that the finding of the court that “Neither plaintiff nor his predecessor in interest abandoned the use of the waters of said creek nor discontinued their use for such length of time as to constitute an abandonment or forfeiture” is sustained by substantial evidence. The record shows that he diverted the waters of Brown Creek through the Cook Ditch and applied them to a beneficial use, except when prevented from so doing by the appellants. He was not required to conduct these waters through any particular ditch, and even though he may have abandoned the ditches through which he formerly conducted the waters of Brown Creek, it does not follow that he abandoned the right to their use.
The following question was propounded to counsel for appellant, viz.:
“Does the use of the water by Koeppe and Carothers from Brown Creek decrease the flow of water at the head of the Cook ditch belonging to the plaintiff!”
If neither the surface nor underflow, if undisturbed, would reach the point of diversion of the prior appropriator, his flow would not be diminished by the diversion of water above him by a junior appropriator, and he could not complain. The burden rested upon appellants to show that neither the surface nor underflow, if uninterrupted, would reach the point of diversion of respondent, the senior appropriator.
For the reasons ¡herein expressed, we adhere to our former opinion.
