Basinger v. Taylor

RICE, J. This action was instituted to quiet title to the waters of Dry Creek, in Custer county, and to restrain the defendant Sutcliffe, as water-master, from interfering with the rights of plaintiffs below,- appellants here. All of the appellants, except the Blaine County Irrigation Company, were farmers who had used water from said creek for many years for the irrigation of their lands. They .had diverted their water from said Dry Creek, across low land and gravel-bars, through a ditch known as “Farmers’ Ditch,” and discharged the same into Wet Creek at a point about a mile and a half distant from the place of diversion. On July 6, 1907, the district court decreed these farmers to be entitled to the use of 22 second-feet of the waters of Dry Creek. About June 1, 1908, respondent Taylor located on Dry Creek and began to prepare his lands for cultivation. The same summer he constructed a ditch leading out of Dry Creek a short distance above the Farmers’ Ditch. On October 29, 1910, appellant Blaine County Irrigation Company made application for and received permit from the state engineer for 150 second-feet of the water from Dry Creek. This company began the construction of a pipe-line to divert water from the creek about seven miles above respondent’s point of diversion. In July, 1912, the pipe-line was completed and water diverted from Dry Creek into Corral Creek, a tributary of Wet Creek. At this time the appellants who had used the Farmers’ Ditch, by agreement with the Blaine County Irrigation Company, changed their point of diversion to the intake of the pipe-line. By the terms of the agreement their water was thereafter to be diverted through the pipe-line, and thence, by way of Corral Creek and Wet Creek, to the place into which their water had formerly been discharged. — 294 — The trial court in its decree adjudged that all appellants, except the Blaine County Irrigation Company, were entitled in common to 22 second-feet of the waters of Dry Creek, subject only to the right of the respondents E. K. Taylor, Samantha J. Taylor and J. B. Taylor, to water for domestic use, and that such respondents were entitled at all times to have delivered at their point of diversion sufficient water from Dry Creek for domestic uses and culinary purposes, and to have flow in the natural channel of said stream a sufficient quantity of said waters to furnish the same at their point of diversion in good, healthy and normal state. It is admitted that in point of time, the right of all appellants, excepting the Blaine County Irrigation Company, is superior to any right the respondents may have for domestic and culinary purposes, and that their right by reason of the application of the water to a beneficial use, and the decree of the district court, has become a vested right. It is clear that under the constitution those using water for domestic purposes have the preference over those claiming for any other purpose, but the usage for such superior purpose is subject to the provisions of see. 14 of art. 1 of the constitution, regulating the taking of private property for public use. In the ease of Montpelier Milling Co. v. City of Montpelier, 19 Ida. 212, at p. 219, 113 Pac. 741, 743, the court said: “It clearly was the intention of the framers of the constitution to provide that water previously appropriated for manufacturing purposes may be taken and appropriated for domestic use, upon due and fair compensation therefor. It certainly could not have been the intention of the framers of the constitution to provide that water appropriated for manufacturing purposes could thereafter arbitrarily and without compensation be appropriated for domestic purposes. This would manifestly be unjust, and clearly in contravention of the- provisions of this section, which declare that the right to divert and appropriate the unappropriated waters of any natural stream for beneficial use shall never be denied, and that priority of appropriation shall give the better right.” — 295 — The decree of the trial court in this case, if allowed to take effect, may operate to deprive appellant water users of their property, without compensation, to the extent that they may be deprived at certain seasons of the year of the amount of water necessary for the domestic use of respondents. We think the decree, in that respect, is in contravention of see. 3 of art. 15, and sec. 14 of art. 1 of the constitution. (Montpelier Milling Co. v. City of Montpelier, supra; Town of Sterling v. Pawnee Ditch etc. Co., 42 Colo. 421, 94 Pac. 339, 15 L. R. A., N. S., 238.) Respondents, however, contend that they have shown an adverse use to the waters of Dry Creek for domestic purposes for a period in excess of five years. We think the evidence fails to show an adverse appropriation by respondents for domestic purposes, and respondents could not claim as riparian proprietors. (Drake v. Earhart, 2 Ida. 750, 23 Pac. 541; Hutchinson v. Watson S. Ditch Co., 16 Ida. 484, 133 Am. St. 125, 101 Pac. 1059.) This is not a proceeding to condemn the property of appellant water users and subject the same to a higher and more beneficial use, but an action to quiet title. The trial court therefore erred in its first and second conclusions of law, to the effect that respondents were entitled at all times to have delivered at their point of diversion sufficient water for domestic uses and culinary purposes, and the decree based thereon is erroneous. Respondent E. K. Taylor was made party defendant in the original action, and respondents Samantha J. Taylor and J. B. Taylor intervened in the action. By their cross-complaints each respondent alleges title to 6.4 second-feet of the waters of Dry Creek, diverted at or near the center of sec. 15, tp. 10 N., R. 25 E., B. M., which said waters were first diverted from said creek on June 1, 1908, and conducted by means of irrigation works to and used upon certain described lands. The intervenors did not allege any privity of title or estate between themselves and defendant E. K. Taylor. Each respondent alleges that he has been gradually increasing his — 296 — irrigation works from year to year since June 1, 1908, until the beginning of the irrigation season of 1913, at which time he was diverting and using upon his said lands a certain amount of water. To sustain his title respondent E. K. Taylor introduced in evidence Permit No. 2929, issued by the state engineer on application of L. L. Folsom, dated April 11, 1907, and certificate of the state engineer, dated Nov. 8, 1913, to the effect that E. K. Taylor, holder of Permit No. 2929, had fully complied with the provisions of the laws of the state of Idaho relating to the completion of the works of diversion set out and described in said permit, and that the said works were adequate for diverting and conveying to the place of intended use 15 second-feet of the waters of said Dry Creek. Respondents Samantha J. Taylor and J. B. Taylor neither by allegation or proof show any interest in such permit. The briefs on file in this case devote much space to a discussion of respondent’s title to Permit No. 2929. It appears from the exhibits in the case that L. L. Folsom conveyed Permit No. 2929 to the Custer County Land & Irrigation Company, by deed dated Feb. 18, 1908. The Custer County Land & Irrigation Company, in September, 1908, conveyed the said permit to Ben E. Hervey. In March, 1909, Ben E. Hervey conveyed to the Spokane-Idaho Irrigation & Power Company, Ltd., Permits N'os. 3924, 2929 and 4092, issued by the state engineer of the state of Idaho, with other property, “saving and excepting a sufficient quantity of- said water and water rights to irrigate 1,920 acres of land, heretofore expressly reserved and granted unto E. K. Taylor.” Defendant Taylor testified that prior to settling upon the lands occupied by him, to which he diverted the waters of Dry Creek, that he had had an agreement with L. L. Folsom, or the Custer County Land & Irrigation Company, as a result of which a deed had been executed to him of Permit No. 2929 and placed in escrow in a bank at Boise, Idaho; that he had made the payments called for by the terms of the escrow agreement, and had arranged to convey his rights to Hervey, with the reservation of sufficient water for his own needs; that upon calling upon the escrow holder for the delivery of the deeds the same — 297 — could not be found, and thereupon, by mutual agreement, the Custer County Land & Irrigation Company conveyed direct to ITervey and Hervey conveyed to the Spokane Company with the reservation set out above. Admitting the facts to be as above outlined, they fail to show any conveyance of title to respondent E. K. Taylor. The statement reserving a “sufficient quantity of said water and water rights to irrigate 1,920 acres of land, heretofore expressly reserved and granted unto E. K. Taylor,” is merely descriptive of the reservation and is not a grant to Taylor, The appellants not being parties to any of the above enumerated conveyances are not affected by the reservation. Without reference to the question of title, however, respondent Taylor could not rely upon Permit No. 2929 in this ease. The issue presented by his cross-complaint is ownership of a water right, and on this issue the holding of a permit from the state engineer, in and of itself, has no probative force. A permit from the-state engineer is not a water right, and this court has held that it is not an appropriation of the public waters of the state and is not real property. (Speer v. Stephenson, 16 Ida. 707, p. 716, 102 Pac. 365; Ada County Farmers’ Irr. Co. v. Farmers’ Canal Co., 5 Ida. 793, 51 Pac. 990, 40 L. R. A. 485.) A permit merely expresses the consent of the state that the holder may acquire a water right, and if the holder of the permit substantially complies with all the requirements of the statute, to and including the actual application of the water to the beneficial use specified in the application for the permit, he may become the owner of a water right, the priority of which will relate back to the date of the permit; but until all the requirements have been complied with, including the actual application of the water, the holder of the permit has nothing but an inchoate right. Proof of ownership of a permit will not sustain a decree founded upon a pleading alleging ownership of water. After the holder of a permit has fulfilled all the requirements of the statute, and made proof to the state engineer that he has put the water to beneficial use for which the diversion was intended, he is entitled to a license from the state engineer confirming such use. — 298 — (See. 3261, Rev. Codes.) Under the provisions of see. 3262, such license is pa'ima facie evidence of a water right, but no certificate issued by the state engineer prior to the issuance of such license is made prima facie evidence of a water right. In the case of Washington State Sugar Co. v. Goodrich, 27 Ida. 26, at p. 38, 147 Pac. 1073, 1077, this court said: “The granting by the state engineer of a permit for the right to use of water of this state, in and of itself secures to the applicant no right to the use of the waters applied for in said permit, unless there be a substantial compliance with each and every provision of the statute relating to or in any manner affecting the issuance of such permit, and a fulfilment of the conditions and limitations therein, but a compliance with the conditions and limitations prescribed in such permit initiates a right to the use of the water in the applicant, and said right then becomes a vested one and dates back to the issuance of said permit.” By granting respondents a decree to 15 second-feet of water, dating from April 11, 1907, the court seems to have been of the opinion that respondents were entitled to the benefit of the doctrine of relation, and that their right for the full amount of water which their works were capable of diverting would date from the time of the application for the permit. We do not think that the respondents in this case were entitled to the benefit of the doctrine of relation. The first statute passed in Idaho Territory relating to water rights was enacted Feb. 10, 1881. This was followed by the act of Feb. 25, 1899. From the time of the passage of the act of Feb. 10, 1881, to the act of March 11, 1903, there was in force in Idaho a statute requiring notice to be posted and recorded by those who desire to initiate a claim for water or water rights, and requiring diligence on the part of the claimants in order that the doctrine of relation might be invoked for their benefit. Both the acts of 1881 and 1899 provided that by completion of works was meant the conducting of water to the place of intended use, and they further provided that by compliance with the rules prescribed in the statutes the claimant’s right to use the water would relate back to the time the notice — 299 — Was posted. Both acts also provided that failure to comply with such rules deprived the claimants of the right to the use of the water as against a subsequent claimant who complied therewith, with a single exception, namely, that all ditches, canals or other works which had been made and constructed prior to the passage of the acts, by means of which the water of any stream had been diverted and applied to a beneficial use, must be taken to have secured the right to the water claimed to the extent of the quantity which said works were capable of conducting and not exceeding the quantity claimed, without regard to or compliance with the requirements of the statute. In the face of these statutes no one was entitled to invoke the doctrine of relation who failed to comply with the requirements of the statute, with the exception above stated. (2 Kinney on Irrigation & Water Rights, p. 1299; Pyke v. Burnside, 8 Ida. 487, 69 Pac. 477; Crane Falls Power & Irrigation Co. v. Snake River Irrigation Co., 24 Ida. 63, 133 Pac. 655.) The act of 1903 prescribed certain limitations in the matter of diligence in the prosecution of the work and provided that application to a beneficial use was necessary to complete the appropriation of public waters of the state. frThe doctrine of relation cannot be invoked by a person alleging title to a water right, and asking that his title be quieted, until the final consummation of the appropriation as defined by statute, and can be invoked only to the extent of the completion of the appropriation. ] (2 Kinney on Irrigation & Water Rights, p. 1290; Bennett v. Nourse, 22 Ida. 249, 125 Pac. 1038; Cole v. Logan, 24 Or. 304, 33 Pac. 568.) Under the acts of 1881 and 1899, the appropriation was completed upon the completion of the irrigation works and conducting of the water through the same to the point of intended use, and to the extent of the carrying capacity of the works, subject, however, to its being lost by failure to apply the water to a beneficial use within a reasonable time. Under the law of 1903, no appropriation is complete until the water has been applied to a beneficial use, and it follows that no appropriation can exceed the amount of water so applied. — 300 — It is clear that under the cross-complaints in this action any decree to the respondents must be based upon.the amount of water actually diverted and applied to a beneficial use. " (Pyke v. Burnside, supra.) It seems that no objection was offered to the action of the court in grouping the rights of all respondents and so decreeing the water. There was testimony to the effect that at the time of the commencement of the suit, or at least at the time of the diversion of water by appellant company, respondents had under cultivation 240 acres of land, and 60 acres additional ready for cultivation. There was some testimony to the effect that an inch of water per acre was necessary to the proper irrigation of such land. Under the most favorable view of the evidence, respondent could not be entitled to a decree for more than six second-feet. The decree awarding respondent E. K. Taylor, and intervenors Samantha J. Taylor and J. B. Taylor, 15 second-feet of the waters of Dry Creek, with date of priority as of April 11, 1907, is erroneous and not sustained by the evidence. The appellant Blaine County Irrigation Company sets out the permit of the state engineer under which it is operating. Appellant claims that by diverting the waters of Dry Creek at the point of intake of its pipe-line, a great saving of water is made; that between the intake of the pipe-line and the outlet of the Farmers’ Ditch, where it formerly emptied into Wet Creek, there was a loss of about sixty per cent of the water flowing down Dry Creek and through the Farmers’ Ditch, and that having effected this saving they were entitled to the same. The evidence showed that more than fifty per cent of the loss occurred in the Farmers’ Ditch and about ten per cent in the creek itself. It appears that the farmers taking water through the Farmers’ Ditch had their water measured to them at a point near where it was discharged from the ditch into Wet Creek. The decree of the court in 1907 did not designate the point at which their water should be measured. This court has held that water appropriated for irrigation purposes must be measured to the claimant at the point of diversion; (Stickney v. Hanrahan, 7 Ida. 424, 63 Pac. 189; Bennett v. Nourse, supra.) It may be that the decree of 22 — 301 — second-feet of water to the farmers is not a final limitation of their rights to 22 second-feet at the point of diversion from Dry Creek, but in the absence of a modification of that decree we do not think the court would be justified in holding that they would be entitled to divert more than 22 second-feet. Moreover, appellant company has not shown itself in position to insist on this point. The evidence fails to show that the appellant company has made a beneficial use of this water, or is in a position to do so, the evidence merely showing that this company has diverted water from Dry Creek. In order for appellant company to maintain its action for an injunction under its permit, it must not only show a substantial compliance with all the requirements of the statute, but also that it is in a position to apply the water it diverts to a beneficial use. (Sandpoint Water etc. Co. v. Panhandle Dev. Co., 11 Ida. 405, 83 Pac. 347.) The question of the rights of the respondents and appellant irrigation company, under their respective permits, in case title thereto is shown is not before the court under the pleadings in this case. Under proper allegations, actions may be instituted for the protection of rights initiated by permits. In this action appellants also ask that the right of those taking water through the Farmers’ Ditch to change their point of diversion be confirmed. Under the statute their point of diversion may be changed, provided such change causes no injury to any other appropriator of water. Respondents are the only parties who could claim to be injured in this case. Their rights must be determined in this action, and when so determined must be protected. A sufficient amount of water must be permitted to flow down the creek to the point of diversion of respondents to satisfy their rights according to their respective priorities. Subject to rights of respondents, the appellants are entitled to change their point of diversion. The decree of the trial court must be reversed and a new trial ordered. No costs awarded on this appeal. Morgan, J., concurs.