Albrethsen v. Wood River Land Co. , 40 Idaho 49 ( 1924 )

Some of the reasons advanced by respondent, and also by the attorney general, who asked leave to join in the application for a rehearing on behalf of certain interests of the state that may be adversely affected, merit attention.

It is claimed that the value of certain land, upon which the state has made farm loans out of a public fund available for that purpose, will be seriously impaired in value if the foregoing decision is to be the final judgment of this court. If this were a question that we could consider upon the present record, the claim is met by a counter-showing by appellant that the state would suffer far greater loss by reason of the impairment of the value of the water rights belonging to a much larger number of farm loans in which the state is interested, if we had reached a contrary conclusion. We conclude that this is not a question we may consider upon this record.

The contention that the decision impeaches the judgment of the court in the decree of Frost et al. v. Alturas WaterCompany, referred to as the "Frost decree," presents a question worthy of further consideration.

The 23d finding of fact in that case, upon which respondent's rights, in controversy, are based, exhibit 4, p. 113, reads:

"That the defendant W.T. Riley and his predecessors in interest on or about the 23rd day of March, 1883, appropriated and diverted 6,000 inches of waters of Big Wood River for the purpose of irrigating the lands of the original appropriators of such water, and for the purpose of supplying other persons whose lands lay under the said ditch with water, by sale or rental for irrigation and for other purposes," etc.

At page 50 of this exhibit there is a general description by sections, townships and range of the lands that "lay under the said ditch," which shows that all are in T. 2 and 3 N., R. 18 E., and the point of diversion to be in sec. 19, T. 3 N.

Respondent deraigns title to its right to the use of this water by mesne conveyances from the said Riley. While there is no specific finding that this ditch had a capacity of 6,000 inches at the time the decree was entered in December, 1909, it must be conceded that all of the parties to that action and their successors in interest are precluded from attacking that decree upon any question that was or should have been determined in that action. No authority is called to our attention and we have not been able to find any which involves precisely this question, that is, when and under what circumstances may a right to the use of water based upon a decree be challenged under C. S., sec. 5582, on the ground of abandonment. We are not persuaded that the doctrine of res judicata has any application to the facts and circumstances of this case, as respondent contends that it has.

A water right differs from other species of property in that the owner does not own the water itself or have any property right in the corpus of the water; all the right which he has is to use the same. This right in the instant case is based upon the Frost decree. It is there held that W.T. Riley, respondent's predecessor in interest, had a valid appropriation for a right to divert and use for a beneficial purpose 6,000 inches of water for the lands "which lay under said ditch" as the same were particularly described in that decree. Respondent's contention, if we understand it correctly, is that the Frost decree having fixed the amount of the appropriation and its application to a beneficial use by means of the ditch or canal system as it then existed is res judicata as to the sufficiency of such system to divert and use this amount of water against all parties, and their privies, to that action.

The statute upon which appellant bases his right to maintain this action is C. S., sec. 5582, which in part reads:

"All rights to the use of water acquired under this chapter or otherwise shall be lost and abandoned by a failure for the term of five years to apply it to the beneficial use for which it was appropriated, and when any right to the use of water shall be lost through nonuse or abandonment such rights to such water shall revert to the state and be again subject to appropriation under this chapter . . . ."

We are of opinion that this statute intends that a right to the use of water, although based upon a decree of a court, may be lost by abandonment, unless it thereafter be beneficially used, and that in any action to obtain a decree and to determine the question of abandonment or forfeiture evidence is admissible which shows or tends to show that after the water had been decreed it had not been put to a beneficial use, but had been abandoned for the statutory period, after the entry of such decree.

One of the most conclusive methods of showing that an amount of water decreed to a particular system has not been beneficially used is to show that the canal or other diverting works through which the appropriation must be diverted and distributed for use does not have the required carrying capacity to divert and distribute the full amount of the appropriation and carry the same to the point of intended use. It is well known that the carrying capacity of any canal system, where the physical conditions of the country through which it is constructed, as here shown to be, may make the carrying capacity of the system, from time to time, a variant quantity.

The law safeguards decreed rights as well as other rights by providing that a loss by abandonment cannot arise until after a failure to apply the water to a beneficial use for a period of five years and this intent must be made to appear by clear and convincing evidence. But a decreed right is not immune from a showing that it has been abandoned and such showing does not impeach the decree upon which such right was based, where the evidence received with reference to the abandonment relates to a time subsequent to the decree. To hold otherwise would defeat a well-settled rule of public policy that the right to the use of the public water of the state can only be claimed where it is applied to a beneficial use in the manner required by law. We think this statute applies equally to rights to the use of water based upon a decree with that of rights based upon an appropriation and actual use and that such abandonment begins at the time the appropriator claiming under a decree fails to apply the water to a beneficial use. And when such failure continues for the statutory period and the other required conditions are shown to exist the right may be lost.

Respondent erroneously argues that in this decision we have departed from the settled rule that this court will not disturb the judgment of the lower court where there is conflict in the evidence and there is competent evidence to support the judgment of the court below. We endeavored to point out that the testimony of both engineers offered on behalf of appellant fixed the maximum capacity of respondents' canal at about 2,600 inches. One of respondent's engineers, who was also in charge of this canal system as water-master during a considerable part of the time in controversy, fixed its maximum capacity at 3,100 inches. All this testimony as to the maximum capacity of respondent's canal was rejected, not because such witnesses were discredited but because another of respondent's engineers, Stewart Campbell, gave respondent's canal system a greater capacity. He was respondent's witness and his professional qualifications and credibility were not questioned by respondent. It makes no claim that it was taken by surprise by his testimony; on the contrary, it offered the same, including a very complete and extensive table of diagrams and cross-sections of this canal's capacity, in support of its claim that its canal had the carrying capacity for the 6,000 inches. This witness had long been familiar with this canal system and he fixed its maximum capacity at a station about 200 feet above the Mizer bridge as being 77.27 second-feet or 3,863 inches; respondent's exhibit "D" showing the extensive cross-section measurements made by Campbell. By reference to other parts of the record it appears that this cross-section was taken about 500 feet above the spillway marked on respondent's exhibit "B" as "old spillway" and above the first diverting lateral, or approximately 900 feet below respondent's headgate. Other cross-sections showing a smaller capacity are not considered because they lie below some small diverting laterals.

Where the carrying capacity of an irrigation ditch or canal is a subject of inquiry, and its capacity has been computed by competent engineers for both of the parties, who have testified to its capacity and the court accepts the highest capacity given to this canal by one of these engineers, the party on whose behalf this evidence was offered cannot complain since all of the evidence less favorable to it has been disregarded in favor of the highest capacity given to the canal by any of the expert witnesses who made measurements.

If a party to an action where the capacity of a canal is in dispute offers expert testimony as to its capacity by a competent engineer who has measured the same, such party should not be permitted to discredit its own expert evidence as to the capacity of its canal by the estimates based upon mere opinion of witnesses who have not made any measurements and who are shown not qualified to do so. We think it may also be taken into consideration that prior to the entry of judgment in this case respondent applied to the reclamation department for permission to change the place of the use of a part of this appropriation decreed to Riley by the Frost decree. From an inspection of respondent's exhibit "F" it appears that it now seeks to change the point of diversion for a considerable part of this appropriation from its present headgate in sec. 19, T. 3 N., R. 18 E., to a point some miles down the river located in the NE. of the NW. quarter, sec. 16, T. 2 N., R. 18 E., and that the lands upon which it is now proposed to use a part of this appropriation lie a number of miles beyond the terminus of the canal system as it existed at the time of the entry of the Frost decree. A request for permission to transfer the right to the use of water from the system to which it was originally decreed and to use the same upon lands that were not within or susceptible of being watered under the old system as it existed at the time of the decree tends to show that the water sought to be transferred is no longer used or needed for the lands to which it was originally decreed.

The assumption of counsel that this decision is a change in the policy of the law as it has heretofore been announced by this court does not rise to the dignity of an argument, and when such claim is considered in connection with the facts of this case we think it is unwarranted. Appellant was a party to the Frost decree and some of the rights that were decreed to him were in point of time almost equal to the rights awarded to Riley. If respondent's contention is to prevail it would result in appellant's rights all being made inferior to the right of respondent to transfer the water decreed to the Riley ditch, and which water was made appurtenant to the lands specifically described in the findings of the Frost case, to a new canal system several miles down the stream for use upon lands that were not susceptible of being watered by the Riley ditch and which were not within the limits of the system as it existed at the time of the entry of the Frost decree. The right of an appropriator to change the point of diversion or to transfer the water so appropriated to other lands to which such water was not appurtenant is subject to the rights of other appropriators out of such stream, and such change cannot be made where it would adversely affect their rights.

Respondent raises the objection that the decision has not taken into account the loss by seepage and evaporation between respondent's headgate, or intake, and the point where Engineer Campbell found the capacity of the Riley ditch to be 3,863 inches. Its distance is approximately 900 feet and not three-fourths of a mile as stated. There is not sufficient evidence in the record from which this loss can be correctly determined, but whatever such loss may be it cannot rightfully be charged against respondent's appropriation if the canal to that point is being maintained in a reasonably efficient manner.

The application made on behalf of respondent for a rehearing will be denied and the opinion of Feb. 8, 1924, will be adhered to with this modification: The cause will be remanded to the district court, with instructions to take evidence and make findings upon the single question as to the amount of loss by seepage and evaporation in respondent's canal between its headgate, or intake, and the point where the witness, Stewart Campbell, by his cross-section measurements, computed the capacity to be 77.27 second-feet and this loss, if any, added to the amount of water to which respondent is entitled as fixed by the former opinion of Feb. 8, 1924, and with this modification to enter judgment in accordance with the former opinion. No costs awarded to either party.

McCarthy, C.J., and Budge, J., concur.