Hard v. Boise City Irrigation & Land Co.

STOCKSLAG-EB, J. This action was brought to compel the respondent, the Boise City Irrigation and Land Company, a corporation, to change the point of diversion of and deliver to the appellant one and three-fifths cubic feet of water per second of time for the irrigation of certain lands of appellant, the right to the use of which appellant claims to have purchased from one who had formerly leased or rented it of respondent and had used it upon certain land under respondent’s canal, which was a different tract from that upon which appellant intended to use it. It is alleged in the amended complaint that the Boise City Irrigation and Land Company was duly organized and doing business in the state; that it is the owner of and managing and operating a certain irrigation canal, together with a water right from Boise river, which canal is commonly known as the Bidenbaugh canal, and that said corporation is engaged in the business of distributing water for the irrigation of the lands under said canal, charging therefor the compensation fixed by law; that the appellant is the owner of certain land (describing it) situated under said canal; that said land is arid in character and is valueless without water for its irrigation; that during the year 1902, and several years prior thereto, one Simpson was the owner of certain land under said canal, and had received from respondent one and three-fifths cubic feet of water per second of time of the water diverted from Boise river by respondent’s said canal, and during said years to the close of the irrigation season of 1902 said water was actually used by said Simpson for the irrigation of his said land; that said Simpson had paid in full therefor and had the right to demand and receive said amount of water from respondent upon payment of the lawful annual charges therefor. That on the fifteenth day of December, 1902, said Simpson sold and conveyed his said water right, together with his said land upon which said right had theretofore been used, to three persons (naming them). — 593 — That on December 27, 1902, one of the said grantees, acting for himself and his co-owners, served upon the respondent corporation a notice in writing that he desired the above-described one and three-fifths cubic feet of water per second of time for the irrigation of the land last above described during the following irrigation season; that until March 5, 1903, the said three grantees were the owners of said water right, and upon that date they sold and conveyed the same to this appellant; that at the time the said grantors notified the respondent of the transfer of said water right to appellant and requested that the place of the use of said water be changed to the land as above described, and that upon delivery thereof to the appellant said grantors waived all right or claim to the rental of said water; that on March 6, 1903, appellant delivered said notice to respondent and exhibited to defendant said deed conveying said water right to appellant, and appellant then and there requested of defendant that the place of use of said water be changed from the land of plaintiff’s grantors to the land of appellant, which request respondent then and there refused; that on the fourteenth day of April, 1903, appellant made a written demand upon respondent to deliver said water at the head of what is known as the Bust lateral, that being a lateral of the respondent’s said canal. Said water was so demanded by virtue of the transfer aforesaid; that at the time of such demand appellant tendered the defendant $120 as the lawful rental for said water through the irrigating season of 1903, and offered to pay the respondent such additional sum as it might require or designate as the reasonable rental value of said water for .said year, and offered to enter into the contracts or applications commonly required or entered into between the respondent and users of water from its said canal, all of which the respondent refused and still refuses; that at such time respondent made no objection to the amount of compensation tendered by appellant or of his offer to execute the proper contracts and applications for said water. The complaint contains many other allegations not necessary to be repeated here, and prays that a permanent writ of mandate be issued requiring said defendant to deliver to the plaintiff the amount of water aforesaid for the — 594 — irrigation of said land for the season of 1903, and for judgment for $600 damages and costs. Counsel for respondent interposed what in effect was a general demurrer to the amended complaint, which was sustained by the court. Appellant declined to amend his complaint'or further plead; thereupon judgment of dismissal was entered. This appeal is from the judgment, and by the demurrer all of the allegations of the amended complaint are admitted to be true. The record in this case presents but one question for our consideration, which appellant says is: “Has the user of water upon lands susceptible of irrigation from the ditch of a company claiming a water right under section 3163, Bevised Statutes, as amended (Sess. Laws 1899, p. 381), the right to change the place of use of the water to other lands susceptible of irrigation from such ditch if others are not injured thereby?” It is certainly unnecessary for us to suggest that it was the evident intent of the framers of the constitution to so husband the waters of the state as to secure the most beneficial use thereof; that is, that it should always be so used as to benefit the greatest number of inhabitants of the state. They were careful to provide who should be entitled to the preference right to the use of the waters flowing in our natural streams. Nearly every session of our legislature has attempted to improve upon its predecessor by so legislating as to improve the former use of water, and an inspection of the various acts plainly shows that the guiding star has always been to so legislate as to protect all users of water in the most useful, beneficial way — keeping in view the rule existing all over the arid region: “First in time first in right.” That a party may change the points of diversion when he takes water from a natural stream is a settled question; provided, he can do so without injury to any other appropriator of the waters of .the same stream. We do not think it material whether he takes it to other land than that for which it was first appropriated, the only question being: Can he so change the place of diversion without injury to some other appropriator? That a party has such property interest in water appropriated — 595 — and used for useful and beneficial purposes that be can sell, we think is beyond controversy, but the buyer cannot take the water to other lands than that for which it was appropriated to the detriment of any other appropriator is equally as well settled. If, however, he can use it upon other lands more beneficially, where could there be a well-founded objection to such change? This brings us to a consideration of sections 4 and 5, article 15 of our constitution. It says: “Sec. 4. Whenever any waters have been, or shall be appropriated, or used for agricultural purposes, under a sale, rental or distribution thereof, such sale, rental or distribution shall be deemed an exclusive dedication to such use; and whenever such waters, so dedicated, shall have once been sold, rented or distributed to any person who has settled upon or improved land for agricultural purposes, with the view of receiving the benefits of such water under such dedication, such person, his heirs, executors, administrators, successors or assigns shall not thereafter, without his consent, be deprived of the annual use of the same, when needed for domestic purposes, or to irrigate the land so settled upon or improved, upon payment therefor, and compliance with such equitable terms and conditions as to quantity used and times of use as may be prescribed by law. “Sec. 5. Whenever more than one person has settled upon or improved land with the view of receiving water for agricultural purposes, under a sale, rental or distribution thereof, as in the last preceding section of this article; provided, as among such persons, priority in time shall give superiority of right to the use of such water in the numerical order of such settlements or.improvements; but whenever the supply of such water shall not be sufficient to meet the demands of all those desiring to use the same, such priority of right shall be subject to such reasonable limitations as to the quantity of water used, and times of use, as the legislature, having due regard, both to such priority of right and the necessities of those subsequent in time of settlement or improvement, may by law prescribe.” Counsel for respondent earnestly insists that under the provisions of section 4 above cited the water must be used upon — 596 — the land where first taken and any attempt to change it forfeits the right of the user. Also that the user has no property interest in the water which he has taken from the respondent’s canal. We cannot give our consent to this proposition. The fundamental law as well as the statutes of our state have both attempted to protect the canal owner as well as the user in their respective rights. In many instances, and in the ease at bar, they must depend upon each other to be successful in their respective enterprises. The ditch would be valueless without users of the waters along the canal, and the lands now supplied with water by the canal company would be equally valueless without the canal to furnish the water. It must be conceded that if the change of the point of diversion of the water in controversy would affect either prior or subsequent appropriators of the waters of the canal, or if it were shown that the change would in any manner interfere with the rights of the canal company, the change could not be made. How could it affect anyone using the waters from this canal ? The right only dates back to the time Simpson (the predecessor of appellant) appropriated the water by his contract with the canal company, and construction of his lateral connecting with the canal and the use of the water on his land. If the water is taken to the land of appellant, it would be the same quantity as theretofore appropriated and used by Simpson. This would in no way affect any appropriator of the waters of the canal. How can it affect the canal company? It is required to furnish the water used by Simpson to someone on compliance with the rules and regulations of the company, and it is certainly immaterial to it whether it is the appellant or someone else. If there is loss by evaporation or otherwise between the original point of diversion and the proposed place where appellant wants it diverted, or if any extra expense or -loss is sustained by the canal company, appellant might have to bear the loss, but that question is not before us, and it is unnecessary to pass upon it. The question arises: Does the canal company acquire any right greater than the privilege of taking the water from the main stream and conducting it to the place of intended use for — 597 — sale or rental? When it takes the water ont of the stream it is only by permission of the state, and it must handle the water in the same manner as if it were left in the channel. The canal company must comply with the provisions of the statutes as to the use of the water to avoid a forfeiture the same as an individual taking from the natural stream. If the theory of respondent should prevail in this case, valuable water rights might be lost, for the simple reason that the state permitted this company to take a large body of water from- Boise river for the proposed reason of furnishing settlers, and others who might want to use it, instead of leaving it in the natural channel. Land sometimes becomes valueless for crops in various ways. Too much water will cause it to become “craw-fishy,” salt grass will grow up, either rendering the soil valueless for most crops.; then if the man with a right to the use of water for years cannot change it to other lands and cannot sell it, he must lose his valuable right and someone succeeds to it without any compensation whatever to the party who has made it valuable by using it as required by the company and the statute. We do not think the framers of the constitution had any such object in view, nor do we think a fair construction of all of section 4, article 15, justifies the construction placed upon it by respondent. The language is: “Any person who has settled upon or improved land for agricultural purposes with the view of receiving the benefit of such water,” and then continues by saying that such party, his heirs, etc., shall not be deprived of the use of such water “for domestic purposes or to irrigate the land so settled upon or improved.” The language is but natural, following, as it does, the first declaration of settlement, but to say that it must always be confined to the land so settled upon and improved is what we cannot believe was meant by the language. Before the adoption of our constitution, the statute recognized the right of the users of the water to change, the place of diversion. Section 3157 provides: “The person entitled to the use may change the place of diversion, if others are not injured by such change, and may extend the ditch, flume, pipe or aqueduct by which the diversion is made to places beyond that where the first use was made.” — 598 — In 1899 the legislature passed the following act: “The person entitled to the use of water may change the place of diversion if others are not injured by such change; and may extend the conduit by which the diversion is made to places beyond that where the first use was made.” (Fifth Sess. Laws, p. 381, sec. 11.) We find no legislation varying this rule. The legislature in 1899 did not construe section 4, article 15 of the constitution as contended for by respondent, or they would have made- an exception of canal companies from the rule. That persons entitled to the use of water may change the place of diversion if others are not injured by such change seems to be the universal rule, the test always being: “If others are not injured by such change.” In Romelli v. Irish, 96 Cal. 214, 31 Pac. 41, a California case, il is said: “It is also settled law that persons entitled to the use of water may change the place of diversion or place where it is used, or the use to which it was first applied if others are not injured hy such change.” The following strong language is used in Union Mill etc. Co. v. Dangberg, 81 Fed., page 115: “A party having obtained the prior right to the use of a given quantity of water is not restricted in such right to the use or place to which it was first applied. It is well settled that a person entitled to a given quantity of the water of a stream may take the same at any point on' the stream, and may change the point of diversion at pleasure, and may also change the character of its use if the rights of others be not affected thereby.” A vast number of authorities are cited in support of this opinion. Many other authorities might be cited, but we deem it unnecessary. To uphold the contention of respondent in this case would be equivalent to saying that the framers of the constitution intended to give to canal or ditch companies rights that are not granted to the citizens of our state. This we cannot do. The judgment is reversed and cause remanded for further proceedings consistent with this opinion. Costs awarded to appellant.