Farmers' Co-Operative Ditch Co. v. Riverside Irrigation District, Ltd. , 16 Idaho 525 ( 1909 )

AILSHIE, J.

This action was instituted in the year 1902, for the purpose of determining and establishing the respective rights and priorities of the appropriators of the waters of Boise river. The judgment and decree was entered in January, 1906. An appeal was thereafter taken from the judgment and the case was heard in this court and the judgment was affirmed. (Farmers’ Co-operative Ditch Co. v. Nampa etc. Irr. Dist., 14 Ida. 450, 94 Pac. 761.) Certain of the defendants moved for a new trial and their motion was denied, and they have appealed from the order denying them a new trial.

Respondents have moved to dismiss this appeal on the grounds that the appellants are guilty of laches and negligence in the prosecution of their appeal. Appellants have made a showing which, we think, fully excuses them from the charge of negligence. This ease involved a voluminous record, covering about 1,700 printed pages. It is shown by affidavit that it required a long period of time for the court stenographer to extend his notes and in the meanwhile discharge his regular duties as reporter. It also required eon-’ siderable time for appellants to reduce the evidence to narrative form and, after they had done so and served respondents with a copy of their statement, it required something like half a year for the respondents to examine the same and serve their proposed corrections and amendments. In view of the showing made in this case, we are entirely satisfied that the appellants have prosecuted their appeal in good faith, and have made a sufficient showing to exempt them from the rule announced in McCrea v. McGrew, 9 Ida. 382, 75 Pac. 67, and reaffirmed in Smith v. American Falls Canal & Power Co., 15 Ida. 89, 95 Pac. 1059. The motion to dismiss must be denied.

Respondents contend that under a stipulation that was entered into between the attorneys for the respective parties, appellants have waived any right which they might have had to question any of the findings of fact as made by the court. Respondent bases this contention on finding No. 5, which is as follows: “That a stipulation was entered into in this cause by and between counsel for the respective parties, whereby the complaint, answers and cross-complaints, and all pleadings filed in this cause should be, and the same are deemed to be, amended to conform to the facts as found by the court herein.” We do not construe this finding as suggested and contended for by respondents. As we view this, the parties merely stipulated and agreed that the pleading filed by each party might be so amended as to cover such facts as the court might find had been proven in his favor. The stipulation could certainly not be construed so as to bind the pleader by facts that are found against him, and contrary to his pleading and in conformity with the pleadings of his adversary.

The decree in this case covers 135 appropriations of water from the Boise river, and those appropriations cover lands aggregating about 135,000 acres. The chief complaint made by appellants is directed against that part of the findings, and likewise of the decree, reading as follows: “That the quantity of water required for the successful irrigation and cultivation of said lands, measured at the intake of the respective ditches under a four-inch pressure, is as follows: For bench lands, one inch per acre. For bottom lands, one and one-tenth inch per acre.” Appellants contend that to award one inch per acre for bench lands and one and one-tenth inches per acre for bottom lands in the Boise Valley will invite and sanction waste in the use of water; whereas, the decrees of courts in water litigation should demand the highest possible duty for water. It must be remembered that this was not primarily a case determining the amount of water required to irrigate any particular tract of land; it was not an action between water users and consumers, but rather an action between the appropriators of water from the natural stream to determine the quantity of water to which each appropriator is entitled and the date from which his appropriation should run. The finding and decree as to the quantity of water per acre necessary for successful irrigation did not amount to an absolute decree of that quantity to each acre of land, but rather amounted to an ascertainment of the basis on which all the appropriations were decreed by the court. In other words, the court, after hearing all the evidence, concluded that he would divide the lands into two classes, one “bench lands” and the other “bottom lands”; for bench lands he would allow one inch per acre, measured at the intake, and for “bottom lands” one and one-tenth inches per acre, measured at the intake. While this finding and decree as to the duty of water would not be [binding upon any users or consumers not made parties to the action, still it becomes important in this ease, for the reason that it is made the measure of each appropriator’s right as to quantity of water under his appropriation and diversion. The appropriator is allowed to divert water from the stream sufficient to cover the reclaimed acreage under his canal at the rate of one inch or one and one-tenth inches per acre,- according as the lands may be bench or bottom lands. The evidence introduced in this case for the purpose of establishing the duty of water under these several canals and appropriations was practically all purely guesswork and of the most unsatisfactory character. One after another of these witnesses testified that he had been using “about” a certain volume or quantity of water on his land, and he “thought” it was necessary to have “about” so much for the irrigation of his land. In nearly every instance when the witness was asked if he had ever measured the water and made tests as to the actual quantity of water used on a given tract of land, he said that he had not. A fair example of the evidence given in this case is that of a witness who testified that he had lived in Boise for forty years, and that he had been acquainted with the irrigation ditches that were built in the early 60’s. He said: “I don’t know anything about inches of water.....I have made no investigation to determine how many inches of water it would take to irrigate an acre of land, either in vegetables or grass land.” The witness followed this testimony by saying he would judge it would take about an inch to the acre. This was true with practically all the witnesses in the case. The trouble with the whole line of evidence given on this subject is that it was for all practical purposes worthless, and was not founded on any actual measurements or tests, but was purely guesswork as to the volume of wafer that had been used by the several witnesses. What evidence was given from actual tests and measurements shows a less quantity of water necessary per acre and consequently a higher duty for the water. New of the witnesses appear to have ever seen water measured, or to know how large a stream of water and what grade or pressure it would take to measure a given number of inches. The first real and satisfactory tests or measurements that appear to have been made were made subsequent to the decree in this case in attempting to distribute the water in conformity therewith. Since the decree was entered, the water commissioner and water-masters under him have made numerous tests and measurements, and a great number of affidavits have been filed on motion for a new trial. By these affidavits, made by the water commissioner and water-masters and other expert witnesses, it appears that it will be impossible to actually irrigate anything like as large an acreage under the decree in this ease as had been previously irrigated by the several appropriators of the waters from this stream. It also appears from the affidavits that it will not be necessary or essential to apply as much water to the lands as this decree calls for. A controversy has arisen as to whether these affidavits constitute newly discovered evidence within the meaning of the statute. Viewed from one standpoint they may be so considered; from another viewpoint they could not be treated as newly discovered evidence. It was within the power of any of the litigants to have made measurements and tests and have produced the evidence thereof on the trial of this case. The water was in the stream, and the land was there for irrigation the same before the decree as afterward. On the contrary, these measurements and itests had never been made before, and, of course, did not exist at the time of the trial. Ordinarily, we should say that this does not constitute newly discovered evidence such as requires the granting of a new trial. We feel satisfied, however, from an examination of these affidavits and the whole record in this ease, that a higher duty may be obtained from the water than that of an inch and an inch and one-tenth, respectively, per acre 'as provided for in this decree. The appellants are as guilty and blameworthy for the class of evidence that was introduced on the subject of the duty of water as are the respondents; they neither objected to the evidence produced by the respondents nor furnished a better class of evidence themselves on this subject; and there was, in fact, nothing left for the trial court to do but make its findings on such evidence as had been introduced. It is necessary, therefore, on this appeal to look to the affidavits presented on motion for a new trial in order to ascertain the real facts with reference to the duty of water on these lands.

It is the policy of the laws of this state, and it has been so declared from time to time by this court, to require the highest and greatest possible duty from the waters of the state in the interest of agriculture and other useful and beneficial purposes.

In Abbott v. Reedy, 9 Ida. 581, 75 Pac. 765, this court said: "The law only allows the appropriator the amount actually necessary for the useful or beneficial purpose to which he applies it. The inquiry was therefore not what he had used, but how much was actually necessary.” This was said in reference to the quantity of water necessary to irrigate a given tract of land.

Again, in Van Camp v. Emery, 13 Ida. 208, 89 Pac. 752, in discussing a similar question, we said: " In this arid country the largest duty and the greatest use must be had from every inch of water in the interest of agriculture and home building.”

After a somewhat extended and very careful examination of the record in this case, we are convinced that justice demands, and the record justifies, the granting of a new trial ■ to the extent and for the purpose of determining the question as to the duty of water on the two classes of lands mentioned in this decree. For this purpose the court can hear the evidence of persons who are competent to testify on the subject and who can do so, not from guesswork or hearsay, but from actual measurements and tests and applications of the water to the lands irrigated under these appropriations. A new trial for this purpose can do no harm or injustice to anyone, and, on the other hand, if it should be found that even a very slight increase in the duty of water per acre can be had, it will, in the aggregate, amount to several thousand additional acres of land that may be irrigated.

In determining the duty of water, reference should always be had to lands that have been prepared and reduced to a reasonably good condition for irrigation. Economy must be required and demanded in the use and application of water. Water users should not be allowed an excessive quantity of water to compensate for and counterbalance their neglect or indolence in the preparation of their lands for the successful and economical application of the water. One farmer, although he has a superior water right, should not be allowed to waste enough water in the irrigation of his land to supply both him and his neighbor simply because his land is not adequately prepared for the economical application of the water.

Special complaint is made by appellants against allotments numbered 2 and 30, respectively, on the ground that they are not supported by the evidence. Allotment No. 2 is to the Jacobs Canal Co., Ltd., dating from June 1, 1864, for the quantity of 1,000 inches. Allotment No. 30 is to Joseph Perrault and R. Z. Johnson, dating from May 1, 1866, for the quantity of 2,500 inches. Yery little evidence was introduced as to the amount of water covered by these appropriations or as to the extent of the use and application of water under these claims.- There is but little conflict, however, in what evidence has been introduced on the subject, and we think it sufficient to establish their respective priorities as well as the amount of water decreed to each, subject, however, to the same exception with reference to the duty of water as hereinbefore treated, which applies to all the appropriators whose rights are involved in this action. A new trial-will be granted as to these appropriators the same as to all other appropriators, for the purpose only of establishing the duty of water to be used and applied under and in pursuance of the respective appropriations. These two water rights are used primarily for sale, rental and distribution for municipal and domestic purposes, and the sprinkling of streets and lawns and irrigating trees and shrubbery and flushing sewers in Boise City. These allotments, numbered 2 and 30, have been properly established and decreed and are hereby affirmed. But the duty of water to be used under such allotments, and the necessity for its application and the extent of its use, will be subjects of examination on a new trial in establishing the duty of water to be used and applied under these respective priorities. While the decree does not specifically designate the amount of water to be applied to a city lot, yet it has been contended on the part of these appropriators that it was necessary to apply ten inches to each town lot. That quantity of water is manifestly excessive for use on so small a tract of land.

Appellants complain of the action of the court in taxing against them a pro rata share of the costs of survey and maps made by the state engineer. The ground upon which this objection is urged is that the maps and plats introduced on behalf of the plaintiff were not certified by the state engineer, and that they were not accompanied by any showing either by way of certification or oral evidence that they were maps prepared by the state engineer’s office. We do not think this objection is well taken. In Boise Irrigation & Land Co. v. Stewart, 10 Ida. 38, 77 Pac. 25, 321, this court held that under the irrigation law the district judge had the power to order a survey of the lands under these several canals, and that the costs of such survey could be properly apportioned to the several parties to the action. In Farmers’ Co-operative Ditch Co. v. Nampa & Meridian Irr. Dist., 14 Ida. 450, 94 Pac. 761, this court again held that such expense was a proper charge to be apportioned among the litigants in proportion to the quantity of water allotted to each, and that it was not necessary to file a cost bill for the same. It is true that, so far as the record is concerned in this ease, it does not show any certification by or on the part of the state engineer to these maps and plats. In the course of a trial, ordinarily where one party offers exhibits in evidence, it is necessary and essential that they be properly identified. This is a different case, however, as these maps and plats were made under authority of a special statute and by specific order and direction of the trial court. It was not necessary that they should be introduced in evidence at all by any of the litigants in order to justify the court in directing that the expense incurred in making the same be apportioned among the litigants and taxed as costs. The fact that the court did so raises the presumption that the court had information which satisfied him that these plats and maps were the ones ordered, and that they had been made by or under the direction of the state engineer. In a ease like this we think the presumption, in the first place, is in favor of the theory that the maps and plats are authentic, and emanated from .the source contemplated by the statute and the order of the court. If, in fact, they did not, the litigant who denies their authenticity may readily show their falsity or spurious character. They are made for the use and benefit of the court as well as for any litigant who desires to refer to or use the same. Another and different question would arise if any particular litigant should show that as to his lands the maps and plats were grossly incorrect and that the survey had been incorrectly made.

We conclude that the court properly taxed the costs of making this survey and the maps and plats to the several litigants in the case.

There is no other question presented that requires our further discussion or consideration in this opinion. The judgment will be affirmed as to the respective rights and priorities of the several claimants and appropriators whose rights have been litigated in this case. A new trial will be granted for the sole and only purpose of determining the duty of water on the two classes of lands involved in this action, namely, bench and bottom lands. This order for a new trial will also cover and include the question of the duty of water under allotments numbered 2 and 30, being the appropriations for the Jacobs Canal Co., Ltd., and the Joseph Perrault and R. Z. Johnson canal, dating from May 1, 1866. The question as to the duty of water under those ditches and appropriations will be retried. On a retrial the court will hear such competent evidence as may be produced touching the duty of water to be applied to lands in Boise Valley and lying under the various canals taking water from the Boise river. The court in its decree should also determine and decree what lands are bench and what bottom lands.

In the event the court, after hearing the evidence, should determine upon fixing a higher duty for water than allowed ,by the former findings and decree, and to therefore reduce the. amount per acre, it will modify the findings and decree as to each appropriator in proportion as it reduces the quantity per acre below that fixed in the former decree.

The costs of this appeal will be taxed against the several appellants, and the respondents who have appeared in this court, in proportion to the quantity of water allotted to each under the decree as originally entered in this case.

(June 16, 1909.) Sullivan, C. J., concurs. Stewart, J., did not sit at the hearing and took no part in the decision.