Sand Point Water & Light Co. v. Panhandle Development Co.

AILSHIE, J. — Prior to hearing this case on its merits, the respondent filed and presented a motion to dismiss the appeal and also a motion to strike from the transcript the appellant’s statement on motion for a new trial. We have carefully examined the record and affidavits used on the hearing of these motions and have concluded that both motions should be overruled, and it is so ordered. This action was commenced by the respondent corporation to restrain the appellant corporation from diverting and appropriating the waters of Sand creek and Switzer creek in Kootenai county, and to restrain and enjoin the defendants from interfering with or diverting the waters of those streams in any way or manner that would interfere with the rights and appropriation of the plaintiff. The case went to trial upon complaint and answer and resulted in a judgment for the plaintiff, from which judgment and an order denying a motion for a new trial, the defendant has appealed. The substance of the trial court’s findings of fact is that the plaintiff’s grantor was the prior appropriator of the waters of Switzer creek and the west branch of Sand creek, situated in Kootenai county, and that such appropriation dates from September 26, 1903, the-date on which respondent’s grantor made his application to the state engineer for a permit to divert, appropriate and use the waters of those streams to the extent of twenty cubic feet per second. The court finds-that plaintiff and its grantor had performed all the acts and requirements necessary or imposed by the statute for the protection of its appropriation, and had diverted the waters and applied them to a beneficial use in supplying the village of Sand Point and its inhabitants with water for domestic uses and fire purposes. The court also finds that the respondent’s appropriation was and is prior to that of the appellant and so ordered and decreed. The appellant contends that the undisputed facts as disclosed by the evidence and appearing upon the record show clearly and beyond question that the court’s findings are unsupported by the evidence, and that he should have found that appellant’s water right from these streams is prior and su — 411 — perior to the rights of respondent, and that the findings of the court in this respect are wholly unsupported. The facts as they appear from the record upon this point are substantially as follows: On December 16, 1902, appellant’s grantors located a water right on West Sand or Mill creek in Kootenai county, and the location notice thereof was posted and duly filed and recorded in the office of the county recorder of Kootenai county, and thereafter, in due time, was filed in the office of the state engineer at Boise city. Within a few days thereafter the same parties duly and regularly made two additional locations on these streams. On the fourteenth day of January, 1903, and about twenty-nine days after making the first location, work was commenced which consisted in cutting out a trail up the canyon and makng a survey for flumes and ditches. Work was continuously prosecuted from that time until the date of the trial of this cause, with at least one man on the ground all the time engaged in building a road, and a flume and ditch through which to carry the waters of these streams, and the general work incident to the construction of the diverting work for carrying out the purposes for which the appropriation was being made. An itemized statement of expenditures made in carrying on this work appears to have been presented upon the trial showing an expenditure of $714 for wages, groceries, tools and supplies, between the fourteenth day of January, 1903, and the first day of September, 1903. It was also shown that an expenditure of more than $1,700 was made on these works between the fourteenth day of January, 1903, and the eighth day of February, 1904. At the time of the trial in this case it appeared that the appellant had built about one mile of road up the canvyn for the purpose of reaching the point of diversion on the stream and conveying material and supplies, and had also erected ans constructed a flume three thousand four hundred feet in length. None of these facts are directly disputed by the respondent, but. at the trial the respondent placed witnesses upon tne stand who testified that in passing through this country in the neisrhoor — 412 — hood of this work they had noticed some work had been done, but the witnesses estimated the value thereof as very small — something like $200 or $300, perhaps. But it does not appear that these witnesses had made very much examination or pretended to have seen all the works or were at all accurate or positive as to their estimates. It remains, nevertheless, a fact, that they admit that work had been done there, and, in fact, one of plaintiff’s witnesses was one of the first men employed by the defendant’s grantor, and had made the original survey for the defendant’s diverting works. The fact stands upon the record practically undisputed, that on the twenty-ninth day of September, 1903, the date on which respondent’s grantor obtained his permit from the state engineer to divert and appropriate the waters of these streams, the appellant was actively engaged in the construction of its diverting works, and had at that time expended from $700 to $800 in the prosecution of the work. It should be observed that appellant’s location and the prosecution of its work was made under the act of February 25, 1899 (Sess. Laws 1899, p. 380), while the respondent’s right was initiated under the act approved March 11, 1903 (Sess. Laws 1903, p. 223). By the latter act a permit is obtained from the state engineer to divert and appropriate the waters of any of the public streams of the state, while under the act of 1899, notice was required to be posted and a copy thereof filed and recorded with the county recorder, and a duplicate thereof filed with the state engineer. By section 6 of the act of 1899, under which appellant initiated its right, it is provided: “Within sixty days after the notice is posted, the claimant must commence the excavation or construction of the works by which he intends to divert the water, and must prosecute the work diligently and uninterruptedly to completion, unless temporarily interrupted by snow, rain or cold weather.” Bespondent claims that the appellant failed to show that it had prosecuted the construction of its diverting works with the diligence required by section 6, supra, and for that reason, if for none other, the judgment was properly entered against — 413 — appellant. It seems to us, however, when we consider that this work was being prosecuted in a mountainous section of the state where there is a heavy snowfall and a long winter season, with much rough and stormy weather, which would interrupt and delay the character of work that was being carried on, that the amount and kind of work which is shown to have been done evidences good faith, reasonable diligence and a purpose to complete the work and apply the waters to the beneficial use designated. Saying nothing of the record notice which the respondent had, the work upon the ground and its continued prosecution was ample actual notice to respondent, or any other subsequent claimant to these waters, as to the nature of the claim asserted by appellant. It seems to us that the real difficulty in this case has arisen from a wrong construction and misapplication of the word “appropriate” as used in our statutes. Section 8 of the act of February 25, 1899, provides that where an appropriator has complied with the preceding sections in the posting and recording of notices and the commencement and prosecution of work, “the claimant’s right to the use of water relates back to the time the notice was posted.” Section 7 of the act provides that by a completion of the work “is meant conducting the waters to the place of intended use.” A person desiring to appropriate the waters of a stream may do so either by actually diverting the water and applying it to a beneficial use, or he may pursue the statutory method by posting and recording his notice and commencing and prosecuting his work within the statutory time. (De Necochea v. Curtis, 80 Cal. 397, 20 Pac. 563, 22 Pac. 198; Wells v. Mantes, 99 Cal. 583, 34 Pac. 324; Watterson v. Saldunbehere, 101 Cal. 112, 35 Pac. 432.) In the latter case his appropriation will be entitled to date from the time of posting his notice (Sess. Laws 1899, p. 380, sec. 8; Wells v. Mantes, supra; Nevada Ditch Co. v. Bennett, 30 Or. 59, 45 Pac. 472, 60 Am. St. Rep. 777, and note thereto; Works on Irrigation, pp. 44-46; Long on Irrigation, sec. 37), and any intervening locator or claimant of the waters will be treated as subsequent both in time and — 414 — right. In such case the appropriation is initiated by the posting of the notice, and an inchoate right thereby arises which may ripen into a legal and complete appropriation upon the final delivery of the waters to the place of intended use. 'In other words, by pursuing the successive steps prescribed in the statute and completing his diverting works and applying the water to a beneficial purpose, the appropriation is completed. The only difference between an appropriation initiated by posting notice and one initiated by diversion and application of the waters, is that the appropriator who claims under notice is allowed the extra sixty days within which to commence his work and reasonable time thereafter in which to complete the same. It appears that the lower court proceeded on the theory that the appropriation, regardless of the posting of notice, dates from the actual diversion of the water and its application to the use intended, and the court accordingly finds that “the plaintiff did on or before the fourteenth day of August, 1904, complete its water system, and did actually appropriate the waters flowing in the said stream described in the complaint, and has ever since said date actually appropriated and used all the waters in said stream described in the complaint in supplying the inhabitants of the village of Sand Point with water for domestic uses and fire purposes.” This theory is incorrect as applied to appellant so long as appellant continued to prosecute its work with reasonable diligence. So long as it did so, it was entitled to have its appropriation relate back to the posting of its notice, and in that event appellant would be entitled to protection as a prior appropriator as against the respondent. Some importance seems to have also been attached to the fact that the appellant was cognizant of the work being done by respondent and the large expenditure being made by it in constructing its diverting works and water system, and that it should have made some demonstration or taken some action sooner to prevent respondent further prosecuting, its work. This position, however, is without merit. The appellant was also prosecuting its work at the same time and for a similar purpose, but in the mean — 415 — while neither one was actually diverting the water to the detriment ir damage of the other, nor was there any apparent reason why appellant could or should have prevented respondent carrying on its work. There is no contention made in this ease but that respondent has a valid water right and appropriation, and would be entitled to whatever of the waters of those streams the appellant fails to use or at any such times as the appellant fails to use and apply those waters. The only difficulty is that upon the undisputed facts of the case, respondent’s right is subsequent and subordinate to appellant’s right. On the facts as presented by this appeal, the trial court should have found that the defendant, the development company, had a prior and superior right to that of plaintilf, the water and light company, and that defendant had prosecuted the construction of its diverting works with reasonable diligence. The judgment is reversed and cause remanded, with in-' structions to the trial court to make findings of fact in accordance with the views herein expressed, and enter judgment in accordance therewith. Costs awarded to appellant. Stockslager, C. J., and Sullivan, J., concur.