Rowland v. Kellogg Power Water Co. , 43 Idaho 643 ( 1927 )

Respondent alleged that he was owner of Lot 13 in Block 20 of the city of Wardner, "together with certain water right acquired from the Kellogg Power Water Company, the defendant herein," by reason of certain deeds of conveyance and adverse possession. His title to the lot was admitted, but it was denied that he was the owner of the alleged water right. After trial, the court made and entered a decree quieting title to the land and permanently restraining appellant from cutting off or interfering in any manner with respondent's "water right and water supply." From this decree this appeal is prosecuted.

For some twenty-five years appellant has been engaged, as a public utility, in supplying the inhabitants of Wardner and Kellogg with water for domestic purposes. This service has been accomplished by taking all the waters of Slaughter House Gulch (and another stream) and supplying it, by means of pipes laid underground, to the inhabitants of the two cities. For more than five years prior to the institution of the action respondent was rendered the service furnished the other users of the system, but had neither been required to nor had made payment therefor.

It was admitted by respondent that he had no interest in the water system, and there is no evidence that appellant was not operating under a valid appropriation of the waters to a public use. The burden was on respondent to establish his right. The deeds relied on by him were wholly ineffectual to convey any private right in or to any of such waters, for the reason that it was not made to appear that any of the grantors owned the right attempted to be conveyed. It is not thought necessary either to set forth or enter into a discussion of the evidence on which respondent relies to establish a right based on adverse use, for the reason that we have reached the conclusion that private ownership of water devoted to the domestic use of the inhabitants of a city may not be so acquired.

The waters appropriated for and supplied to the inhabitants of Wardner and Kellogg were devoted to a public use, and subject to the regulation and control of the state. (Const., art. 15, sec. 1.) The right of a public utility to collect rates for supplying water for the domestic use of the inhabitants of a city is a franchise, and can be exercised only in the manner provided by law. (Const., art. 15, sec. 2.)

The water was dedicated to the public use of the inhabitants of Wardner and Kellogg, and was not appropriated for private use on lands of individuals. (See Hildreth v. Montecito CreekWater Co., 139 Cal. 22, 72 P. 395.) The utility could make no disposition of such water nor could a user acquire any right therein other than in accordance with the provisions of the statute. The furnishing of water to respondent without paying the uniform rate charged like users is positively prohibited by C. S., sec. 2427, and other sections of the statute. It is indeed contrary to the purpose as well as the letter of the law.

Appellant was the agency through which the state devoted the waters of Slaughter House Gulch to this public use. Such a private water right as that sought to be established by respondent cannot be acquired in water appropriated by a public utility for the domestic use of a city and its inhabitants. If a public utility could by any act on its part, or by neglect, confer on one person a private right in water devoted to such public use, it could do the same thing with others and thereby destroy what the constitution declares a public use.

The right of an individual to use the water of a stream devoted to the public use of a city and its inhabitants arises out of the fact that he is a member of the public to the use of which the water is dedicated. Previous use or enjoyment does not affect the right. And no one can acquire a greater right than, as a member of that public to which its use is devoted, to demand and receive an adequate supply by complying with reasonable rules and regulations and paying the rate therefor fixed by the state. (Hildreth v. Montecito Creek Water Co.,supra; Leavitt v. Lassen Irr. Co., 157 Cal. 82, 106 P. 404, 29 L.R.A., N.S., 213; 1 Cal. Jur. 585; Hudson v. Ukiah Water Improvement Co., 177 Cal. 498, 171 P. 93; Southern PacificCo. v. Spring Valley Water Co., 173 Cal. 291, 159 P. 865, L.R.A. 1917E, 680.)

It is ordered that the decree be modified in accordance with the views herein expressed. Costs to appellant.

Givens, Taylor and T. Bailey Lee, JJ., concur.