*1 Sears, hus and Ramona Wallace SEARS wife, Plaintiffs-Appellants
band Cross-Respondents, Berry Virginia BERRYMAN and
Glenn
man, wife, Defendants- husband Cross-Appellants,
Respondents and Ward,
Eugene Water as Watermaster of Allred, 43-C, Stephen No.
District Department of Water
Director Idaho, Def
Resources of State of
endants-Respondents.*
No. 13241. Idaho. Court of
Supreme
4,May * 455), opinion was withdrawn from the bound volume Note: The Supreme Editor’s Court Overman, republished appendix. published and will with added Overman (623 the advance sheets at this citation
Robert L. Crowley, Lawrence H. Duffin Duffin, Coughlan, Barker, Workman & Burley, for plaintiffs-appellants. Parsons, William Burley, Josephine P. Beeman, Deputy. Atty. Gen., Boise, for de- fendants-respondents.
SHEPARD, Justice.
adju-
This
an
appeal
judgment
dicating
rights
as between various com-
peting parties in and to waters diverted
from Cassia Creek in a water district in
part,
Cassia
County, Idaho. We affirm
part,
reverse in
and remand for additional
the trial court.
findings and/or actions of
rights to divert
numerous
duly
were
Creek
water from Cassia
use
adju-
Among the water
adjudicated.
was the
inches of
judgment
in that 1928
dicated and decreed
Beecher
deed to Sadie
warranty
were
Adams
the Jobe
decree]
[hereinafter
Sears,
also
Beecher:
but
following awarded to Sadie
in that
Beecher
to Clifford
deeded
inches)
(31
per second
.62 cubic feet
deed.
inches)
(30
.60 cfs
(60 inches)
hand, defendants-respon-
*3
On the other
1.20 cfs
1879
dents,
Berrymans,
contend that
inches
TOTAL
121
predecessors
and their
in interest have al-
That 1928decree also awarded Clifford and
ways
part
used at least a
of the aforesaid
(94 inches)
Hazel Beecher 1.88 cfs
with a
and contested 51 inches of water.
priority of 1872. The 94 inches decreed to
issue,
Clifford Beecher are not at
but are
times,
delivery
At all relevant
relevant for determining the amount of Sa-
prede-
and their
parties
water to the
herein
die Beecher water actually used on the Clif-
of the
responsibility
cessors has been the
ford Beecher ranch since 1939.
since the area
various district watermasters
question
in
is located within the boundaries
1937, leaving
in
to
Beecher died
Sadie
of Water District 43-C.
I.C.
42-607.
§
children,
her
Beecher Sears
each of
Sadie
Berrymans purchased the ranch
When the
predecessor) and Clifford Beech-
(plaintiffs’
1965,
the 1938
they evidently
in
learned of
(defendants’
an undivided
predecessor)
er
distributing
deed
Beecher lands
Sadie
property
in
and the
one-half interest
her
Berryman requested
and water and Mr.
2,1938,
June
appurtenant
rights.
water
On
delivery
watermaster
increase the
Beecher, by
those two children of Sadie
and,
water
in
with that
to his lands
accordance
deed,
redistributed
warranty
divided
disputed
1938 deed.
It
whether such
land in their mother’s estate and
In
additional water was then delivered.
water decreed thereto as follows:
event,
years
Berryman
some
later Mr.
right
(18 inches)
.36 cubic feet
.62 cfs 1872
(17.5 inches)
Department
contacted the
of Water Re-
right
.35 cubic feet of the .60 cfs 1873
(34.5 inches)
right
.69 cubic feet of the 1.20 cfs 1879
concerning
sources
that 1938 deed and his
TOTAL
70 inches
claim that
the watermaster had failed to
deliver
Beecher,
water
accordance with the deed.
received Clifford
To the land
1977,
Department
In
of Water Re-
balance:
remaining
sources instructed the then watermaster to
(13 inches)
right
.26 cfs of the .62 cfs 1872
changes
delivery.
make certain
in the water
inches)
right
(12.5
.25 cfs
the .60 cfs 1873
(25.5 inches)
right
.51 cfs of the 1.20 cfs 1879
1977,
instituted the instant
Searses
TOTAL
rights
parties
action to determine the
It is the 51 inches of water deeded to
inches water. Fol-
contested 51
Clifford Beecher in that conveyance of 1938
trial,
lowing
initially
the court
found that
which
is the
matter of the dispute
predecessors
and their
between
parties.
consistently used 120 inches of
The land inherited
Beecher
Sadie
amount consisted of 94 inches which had
purchased by
was
her
Wallace
Sears
son
been decreed to Clifford and Hazel Beecher
wife, plaintiffs-appellants
and his
decree,
pursuant to the 1928Jobe Adams
12
herein, in 1963. The
source,
Clifford Beecher land
only
inches from a third
was sold to one
in 1957. The défend-
Smith
inches of the contested 51 inches. The
herein,
ants-respondents
Berrymans,
plaintiffs-appellants
court concluded that
first leased the ranch from
in 1961
right
Smith
Sears had established their
to 37 of
purchased
and later
the ranch in 1965.
51 inches of
water
virtue of
equitable estop-
the doctrine of laches and
Appellants
alleged
Searses
in 1939
pel.
predecessor
their
(Sadie
in interest
Beecher
Sears)
using
Upon motion,
commenced
the entire 121
the court amended its find-
ings
inches of water decreed to
Sadie Beecher in
conclusions to state that of the 120
the 1928 Jobe Adams
inches
decree. The
consistently
the Berrymans,
thus
claim on various
theories not
inches were from the 1928 Clifford
Beecher decreed
and 26 inches were
of the waters within a
administration
and 1873 Sadie Beecher de-
district,
no water user within
creed and
rights;
1938 deeded
possess the
adversely
district can
predecessor
Searses and their
had for
Thus, at
any other
user.”
least fol
period in
years,
excess of 37
commencing in
amendment,
lowing
acquisition
1939, received and beneficially used that
prescriptive right
precluded.
water is
portion of the
1873 and 1879 Sadie Respondent Department
of Water Re
Beecher decreed
which were deeded
sources asserts that this Court DeRousse
Sadie Beecher Sears in
and also 25
Higginson,
inches of the
which was deeded (1973), held that
the 1969 amendment
1938;
to Clifford Beecher in
that the Berry-
merely
I.C.
42-607 was
a codification of
§
mans
predecessors
and their
no objec-
made
principle
Big
the same
which was stated in
during
tion
those
to the Searses’ use
Chapman,
Wood Canal Co. v.
45 Idaho
*4
of the
25 inches of the
51 inches of
(1927).
Berry
is argued
decreed since 1939. times by administered a watermaster. that the thereupon concluded The court However, it is not necessary to decide the to had established applicability of the pos doctrine of adverse the Ber- the which was deeded to of water in session a watermaster dis administered of the rymans’ in 1938 virtue predecessor prior trict to Í969 since here the Searses did equitable estoppel of and doctrine laches not show by clear convincing and evidence long the and continuous on based Searses’ the necessary elements of posses adverse objection by the use of the water without sion. Further, predecessors. Berrymans or their Smith, It was held in Gilbert v. 97 Berrymans the court concluded that the 735, (1976), pre Idaho that asserting estopped enjoined from were and water, scriptive title to which is real proper de- any right any to of the Sadie Beecher ty, may acquired by be adverse use for five except being 13 water for 26 inches creed hostile, open, where is such use exclu and 1873 inches each from 1872 sive, right, under claim of continuous and rights. decreed be clear but those elements must shown in assert that ad- appeal, On the Searses to convincing evidence and the burden and award- 25 inches of 1879 water dition is on the claimant. The character do so them, the 13 inches acquired ed to also proof required posses to establish adverse the 13 inches of 1873 1872 and precisely to water is not same sion waters which were the 1938 required Village for As stated in that land. predecessor Berrymans. of the deed to Franklin, Co., v. Etc. Irr. 59 of Fairview upon based the theories of Their assertion is 7, 531, (1938), 17, in 79 P.2d 535 Idaho abandonment, forfeiture possession, adverse of exclusive requirement reference to Berrymans laches. The ness, approval in quoted with Mountain conversely that assert none those doc- Duffy, v. 79 Idaho Irrigation Home District entitlement trines establish Searses’ 440, 965, 435, (1957); Linford P.2d 967 1872, or 1879 water. 49, 54, Son, H. Hall & G. (1956); Taylor Follett v. I. Brothers, 416, 423, 77 Idaho 294 P.2d to the contentions We turn first (1956); Leek, and Graham v. 65 Idaho appellants that their entitlement 279, 290, 144 P.2d (1943): 480-81 was established controversy in here water parties “. .. may two at the same time I.C. 42- possession. § by adverse possession of water from a creek long as a provide: was amended “[s]o other; neither hold adverse to the charged is with duly elected water-master to use justly claim may each II. affecting the using, without he is water also claim the entire Appellants’ Searses therefore, or- other, rights of the aban- disputed 51 inches on theories of possession adverse constitute der to forfeiture. the trial donment and Since upon the claimant water, is the burden court found that the had used deprived the water his use of show the 1872 and 1873 we at times of water appropriators prior affirmed, have clearly they neither aban- actually appropriators prior when such doned nor forfeited the 1872 .and 1873 water-, not be- does the use needed Hence, water. we shall consider the theo- it interferes until come adverse ries of abandonment and forfeiture only in appropriators, prior thereof use regard to the 25 inches of the 1879 water. merely proof therefore Although abandonment and forfei and claimed claimant ture share certain features, common this whatever proof is no use it Court in Carrington Crandall, supra, and use." adverse again in Smith, Gilbert v. supra, made clear requiring proof
This rule
that the claimant
the two are
legal
distinct
concepts.
deprived
prior appropriators
of their Abandonment is a common law doctrine
water at times when such water was actual-
involving the
(1)
occurrence of
an intent to
ly
Smith,
needed is reaffirmed in Gilbert v.
(2)
abandon and
an actual relinquishment or
supra.
surrender of the
right. Forfeiture,
specifically
Here the trial court
hand,
the other
predicated
upon the
*5
adjudi
found that the 13 inches of the 1872
statutory declaration
that all
to use
cated water and the 13 inches of the 1873 water are lost where
appropriator
fails
adjudicated
water which were the
to make beneficial use of the water for a
Berrymans’ predecessor
of the 1938 deed to
continuous five year period.
I.C.
42-
§
consistently
by
Berrymans
were
222(2).
predecessor
by
and their
and not
the Sears-
The intent
to abandon a water
predecessor.
es or their
Although there
right must
clear,
be
by
evidenced
unequivo
conflicting
was
party
evidence as to which
cal and decisive acts and mere non-use is
used those 26 inches of
that factual
per
not
se
Smith,
abandonment. Gilbert v.
within the
controversy
lay
its resolution
supra.
Carrington
Crandall,
See
v.
supra.
The
of the trier of the fact.
province
The question of whether the Berrymans
evidence
finding
supported by
is
court’s
predecessors
their
intended to abandon
appeal. Gil
and will not be disturbed on
the 25 inches of the
right
was neces
Smith,
Sharrow,
v.
supra;
bert v.
Peck
sarily one of fact. The record does not
512,
(1975); Carrington
Idaho
vested in that claimant by the consistently used water was right conveyed ty had been to him being supported Neddo, and that Williams v. Searses original appropriator. will conflicting, evidence substantial, Thus, 551, albeit (1945). 66 Idaho Hence, the appeal. disturbed not be possessor pri adverse retains the same here, applies laches ority enjoyed dispos doctrine date as that all, inches However, to the 25 if at in cases of aban party. sessed forfeiture, priority water. where the focus is donment and non-use, the waters upon appropriator’s The doctrine of laches is a creation thereby by the revert to appropriator lost equity species and is a equitable estop again subject appropri state are pel. “Long and continuous knowing acqui Smith, supra; Graham v. ation. Gilbert escence in another’s use and enjoyment of a Leek, supra; 42-222(2); 78 Am. I.C. § property or privilege may preclude one words, (1975). Waters 338 In other Jur.2d § from subsequently asserting his claim.” those doctrines the date of under Hillcrest Irr. Dist. v. Nampa Etc. Irr. Dist. original appropriator is lost and a subse 411, 403, 115, 66 P.2d (1937). those quent appropriator of abandoned or However, “[l]apse of time is not alone suffi obtain title forfeited waters does not there cient to defeat right ground on the dating original user’s priority back laches. It must shown that the [claim date. misled, has been ant] to his injury, by the The doctrine of forfeiture incon failure of the right] [holder to assert appellants’ argument that they sistent its earlier.” Mountain Home Irr. while disputed waters to the enjoy 435, Dist. v. Duffy, 79 Idaho 319 P.2d estab priority dates retaining original (1957). As we decree. in the Jobe Adams lished Although appellants rely upon record, on the was tried the cause view Hillcrest Irr. v. Nampa Dist. Etc. Irr. Dist. had established theory that the Searses supra, in which this Court found the exist origi water with laches, ence of the elements of nevertheless priority dates of nal *6 it was there stated: this established they not that and . even though appellant’s title may of date 1944.1 priority the with have been originally questionable or un- or in appeal on point in the briefs At no certain, nevertheless, respondents have this Court argument presented oral by, stood with full knowledge of all the they secured a argue that did facts, and for more years than twenty to the right appropriation constitutional have appellant allowed proceed on the Hence, we priority date. with a 1944 water theory that it had valid title to these of 1879 whether decide do not rights water a legal right and to have the was by Berrymans water forfeited and water diverted from the New York Ca- subsequently appropriated by the Searses in nal; and in the meanwhile has incurred 1944. large indebtedness on the strength of its III. title. ...” 408-09, Id. at 66 at P.2d 117 (Emphasis added). Lastly, they the Searses contend that are entitled to the entire 51 inches disputed of Hillcrest, the elements of long know- water under the doctrine of by ing acquiescence, as well as reliance to Conversely, Berrymans argue laches. injury of the claimant were clearly present. such dispossess that doctrine does not them In Mountain Home Irr. Dist Duffy, of disputed water. supra, the claimant asserted title As hereinabove stated in water connection with under the estop- doctrine of theories, appellants’ of use pel by other the trial 40 upon court laches based began The trial found that the Searses court run from 1939 to 1944. In 1944 the 25 inches Berrymans’ using 1879 water inches of would have reverted to State and become period therefore appropriation by forfeiture would in 1939. The available for the Searses. money BAKES, J., large McFADDEN and sums C. expenditure JJ., court DONALDSON, However, there concur. the claimant. claimant by the expenditures that the held J., BISTLINE, concurring. detrimental requisite did not establish reliance, I concur with the opinion majority Company Water Almo see also necessary but feel it point out that the 16, 501 Darrington, alleged original forfeiture in their (1972). complaint, but then inexplicably omitted theory in complaint, their amended case, In the instant there must which was submitted after trial. The evi- have long been shown not a and con dence at trial suggested forfeiture, a knowing acquiescence respon tinuous indeed the trial findings court’s strongly Berrymans dents the 25 Searses’ use of suggest that a forfeiture has occurred: inches of 1879 but there in addition plaintiffs “18. That have consistently to, there must have been reliance shown used all of the 1872 and 1873 de- their upon Searses to detriment creed to Sadie Beecher in the Jobe Ad- Berrymans’ continued relinquishment of decree, ams’ inches, except for 26 for their rights to the 25 inches of water. Oth irrigation purposes during the irrigation erwise, Berrymans held to be cannot be season of year, each year from the estopped by claiming laches from now present. disputed 25 inches of water. plaintiffs, or That such use “19. The here re- trial court made no for a has continued predecessors, their Berrymans’ knowledge garding (37) thirty-seven of more than period they receiving were not from the water years. watermaster in accord with their deeded water so of such That the flow “20. right. finding might implied Such a particularly is more by plaintiffs Berrymans that the were entitled basis follows: as described inches, being to 145 94 inches of decreed inches, foot, or 18 (1) a cubic .36 of 51 inches of The deeded water. 1872; priority April with a record appears Berry- to indicate that the inches, foot, mans never claimed have used more than or (2) of a cubic .34 1873; inches, therefore, and it would appear, April priority date with were aware that the 25 inches of inches, foot, or (3) 1.2 of a cubic being water was not delivered. In their 1879; April date of brief, however, emphatically legally described (4) That declare otherwise and we do not rule on this Beecher as the water allocated to Sadie point. in the Jobe Adams’ decree *7 County in the finding recorded office Further, no the trial court made County, Idaho.” Recorder Cassia expenditures, improvements concerning any position by the Searses change or The further that “defendants Ber- on detrimental reliance would constitute during ryman objection .. . made no inches of use of the 25 their continued plaintiffs that have received and ben- were material factual issues water. These eficially used water” is additional evi- under disposition of cause to the of a on remand dence forfeiture.1 If Thus, we estoppel by laches. theory of requi- district court should fail to find the be re- necessary that the cause deem it necessary to sup- site reliance detrimental findings conclusions for and manded theory of port equitable estoppel, its those issues. given should be leave to amend their Sears trial complaint, pursuant amended to I.R.C.P. judgment and The orders part 15(b), in to to conform the evidence adduced part, in reversed court affirmed are trial, con- a at which indicates that forfeiture of proceedings further for and remanded may the 25 inches indeed have occurred. allowed. No costs sistent herewith. of this 25 inches was exclusive. This should be It from the 1. is not clear record whether clarified on remand. actually trial believed that the Sears’ use court to the date course, priority the Sears’ Of Angus HILL and neces- Hill, would Clementina a forfeiture such Hus- water under Wife; band and year William the end D. Nielsen and sarily date Nielsen, Anna M. theory under a Wife; while Husband and period, forfeiture Raymond Inglin and date D. original priority Ing- and Senia equitable lin, Wife, Husband and Plaintiffs-Re- apply. would spondents, that to observe constrained I also feel entirely unwarranted an makes majority “the doctrine stating that in assumption BOARD OF COUNTY COMMISSIONERS appellant’s with is inconsistent
forfeiture County, of Ada Idaho, State of and Ada right to the they enjoy the that argument County, Idaho, Defendants-Appellants. original retaining while disputed waters No. 13091. Jobe Ad- in the dates established priority was tried decree,” cause that “the and ams Supreme Court of Idaho. theory on the that the had established Sears April right origi- to the with the disputed water priority nal dates 1873 and that this they not established priority
with the date of 1944.” The as-
sumption claiming is that are “priority dates established fact,
Jobe neither their Adams decree.”
original complaint nor their amended com- all, specific at
plaint priority claimed a date they specific priority claim no date on
appeal. References to dates are
given only particular describe the separate There no assertion of a
claimed. is particular priority dates.2 The claim, repeatedly insistently,
Sears do began
that inches they appropriating they question have
applied use such water a beneficial since produced at time. The evidence trial establishing
was directed at this fact. If had, arguing Sears were forfeiture,
through obtained
water with a priority date established decree, I Jobe Adams have would
concur with the statement the majority. internally a claim would be contradic-
Such
tory stricken. How- being
ever, it no claim made and should be remand, that, on
made clear the court is *8 Harris, Atty„ County C. Pros. free to consider of a forfeiture. Jim Ada the effects Deputy Pros. my separate Connolly, John P. Civil Hence concurrence. Chief appear it does not to be in the interests of complaint, their amended submitted after justice interpret phrase, preclude trial, even an so the Sears state do that right have adverse- interpretation ly would not a forfeiture priority “all said water with a being allegations the other found under 1873 and 1879 . . ..” This complaint. Certainly Sears’ priority amended ambiguous, reference dates but Sears do not claim a dates, to water with those may interpreted as a claim water which those dates. includes claim to those dates. While