69 P. 1003 | Idaho | 1902
— This action was brought to enjoin the defendant from changing his point of diversion of certain water decreed to him by the district court from Cold Springs creek, Elmore county.
In 1889, the defendant, and others using water from said creek, brought suit, in the district court of said county, to enjoin one S. A. McAnulty (who was then the owner of these appellants’ “McAnulty” tract of one hundred and sixty acres above referred to) and some other users of water from said creek, from diverting the same therefrom. Afterward, in 1890, an amended complaint was filed in said action, in which all of the plaintiffs mentioned in the original complaint were dropped but said Daniel McGinness.
Said S. A. McAnulty answered, setting up ownership to the said McAnulty one hundred and sixty acre tract of land, and the right to the use of water therefor from said creek. In that suit McGinness alleged ownership of but the first four of his tracts above described. In the month of August, 1891, judgment was entered in said cause, awarding to McGinness nine hundred inches of the waters of said creek; said decree designating the point of diversion for said nine hundred inches' of water as “the head of plaintiff’s big or main ditch,
The whole controversy is on the one issue as to whether defendant had changed his point of diversion of the water awarded to him under „said decrees of August 10, 1891, and May 10, 1899.
In the suit at bar, the trial court’s third finding of fact is as follows: “That the point and place of measurement of said nine hundred [900] inches of water, to the use of which said Daniel McGinness, the plaintiff therein, was awarded a prior right over the said defendants Samuel A. McAnulty and ethers, was and is at the head of the big or main ditch belonging to said Daniel McGinness, which ditch commences near the mouth of the canyon on said Cold Springs creek, above the lands of said plaintiff, Daniel McGinness.” This finding of fact is based on the decree of August 10, 1891, in the suit between Daniel McGinness and S. A. McAnulty, and affects the one hundred and sixty acre McAnulty tract, owned by the appellants in the case at bar. The ninth finding of fact in the case at bar is as follows: “That the point of diversion of the waters so awarded to said Daniel McGinness, by the decree in the last above-mentioned case, was at the time the decree was rendered and entered, and still is, at a point in the channel of said Cold Springs creek at or near the north line of the southwest quarter of the southwest quarter of sec
From all of the findings of fact, the court found, as conclusions of law, that the water awarded under the decree in the case of McGinness v. McAnulty must be measured at the mouth of said canyon, and the water awarded to him under the McGinness-Stanfield decree must be measured to him at the point about two miles below the mouth of said canyon, and just above the land of McGinness. A decree was entered, in pursuance of said findings of fact and conclusions of law, directing that the nine hundred inches of water awarded to McGinness in the suit of McGinness v. McAnulty (decree entered August 10, 1891), be measured, under a four-inch pressure, at a point on said Cold Springs creek at the head of the big main ditch of said McGinness, near the mouth of the canyon, on said creek, and that' the waters awarded to McGinness under the decree of May 10, 1899, in the suit of McGinness et al. v. Stanfield et al., shall be measured for use on the Daniel McGinness homestead at a point in the channel of said creek at or near the north line of the southwest quarter of section 28, township 4 south, range 9 east, and at the, point where defendant’s ditch takes out of said creek, and that the remaining waters awarded to said McGinness from said creek by said decree of May 10,
Several errors are assigned: 1. That the court erred, in its ninth finding of fact, as to the proper point of diversion and measurement in the ease of McGinness v. Stanfield; 2. That the court erred in its tenth finding of. fact, that there was no change of the point of diversion by defendant; 3. That the court erred in not finding that the plaintiffs were compelled to turn more water down the creek owing to defendant's change of his point of diversion, and plaintiffs were thereby deprived of their water, and injured thereby; 4. That the court failed to find as to the loss of water between said two points of diversion; 5. That the court erred in its conclusions of law. In our view of this case, we need not take up said assignments and dispose of them seriatim. For if the evidence discloses the fact that the respondent, McGinness, has changed his point of diversion to the injury of the plaintiff, the judgment must be reversed.
It must be remembered that Stanfield was the successor to the land and water right of MeAnulty, and appellants the successor o.f Stanfield thereto, and as between Stanfield and McGinness, and appellants and McGinness, the decree in the McGinness-MeAnulty case is binding. So far as the suit at bar is concerned, the trial court could not change or annul that decree. The water rights litigated in the McGinness-McAnulty suit are the identical water rights litigated between McGinness and Stanfield in the McGinness-Stanfield suit, and the decree of August 10, 1891, has not been set aside, and is binding on McGinness as to his point of diversion.
In the first suit there were only two parties, McGinness and MeAnulty; in the second, tried about eight years later, there were a number of parties plaintiffs and defendants, and in the latter decree the quantity of water awarded to each (McGinness and MeAnulty) was scaled down, but the point of diversion
While the judgment of May 10, 1899, scaled down the amount of water awarded to McGinness and McAnulty by the decree of August 10, 1891, it did not change the point of diversion of the water awarded to McGinness.
The decree in the ease at bar also provides that the water master must measure the water awarded to McGinness under the decree of August 10, 1891, at the mouth of said canyon, and provides that the water awarded to him under a decree of May 10, 1899, shall be measured at a point two miles below the mouth of said canyon. When it is remembered that the water under the decree of 1899 to McGinness is the same water, scaled down, as that mentioned in the first decree, it will be perceived that it would be a difficult feat for the most expert water master to measure the same water, at the same time, from the same creek, at points two miles distant from each other.
The evidence clearly shows that respondent claimed his point of diversion to he at the head of said canyon, at the head of his big ditch, for the purpose of beeping others from taking water therefrom, and at the same time demanded that the water awarded to him he measured two miles below the month of said canyon, so as to avoid losing the seepage and loss occasioned by the water flowing in his said ditch and channel of the creek for that distance. That, he will not he permitted to do. Under the decree of August 10, 1891, he was required to measure his water at the head of said big ditch, near the month of said canyon, and he cannot now change said point of diversion and measurement to the injury of appellants, who are the successors to the water rights of McAnnlty through Stanfield or other users of water. The evidence shows that appellants would get more water if the respondent’s water was measured at the head of said Mg ditch, near the mouth of said canyon, than if measured two miles below near the respondent’s land. Section 3157 of the Bevised Statutes, provides that a person entitled to the use of water may change his place of diversion if others are not injured by such change. The converse of the proposition must be true — that one entitled to the use of water may not change his place of diversion if others are injured by such change.
The judgment is reversed, and the cause remanded, with instructions to the trial court to make findings of fact and conclusions of law in accordance with the views expressed in this opinion, and enter judgment as prayed for in the complaint. Costs are awarded to appellants'.