Arkoosh v. Big Wood Canal Co. , 48 Idaho 383 ( 1929 )

Respondents Hans Sorenson and Merl C. Sorenson asked for a rehearing, contending that the original opinion herein denied them their appropriation of water for domestic use during the nonirrigation season granted by the Frost decree.

We believe that a proper interpretation of the Frost decree is that while it awarded to respondents and their predecessors a right to use, during the irrigation season, a particular quantity of water for irrigation and allied purposes, it was too indefinite and uncertain to award to them another or separate and distinct right to use water for any purpose during the nonirrigation season, or for a purpose not directly connected with irrigation (Lee v. Hanford, 21 Idaho 327,121 P. 558; Reno v. Richards, 32 Idaho 1, 178 P. 81; Walsh v.Wallace, 26 Nev. 299, 99 Am. St. 692, 67 P. 914; Smith v.Phillips, 6 Utah, 376, 23 P. 932; Nephi Irr. Co. v. Vickers,15 Utah, 374, 49 P. 301; Rogers v. Overacker, 4 Cal. App. 333,87 P. 1107; Powers v. Perry, 12 Cal. App. 77,106 P. 595; Long on Irrigation, p. 394); that the right of respondents to a flow of water for domestic use alone is a right not adjudicated by that decree or by the decree in this suit, but that such right to a flow for domestic use alone, during the nonirrigation season, is left for later determination in an appropriate proceeding; that, as against any right of respondents fixed by the Frost decree, appellant's storage rights may be exercised so long as respondents have at their headgates, during the irrigation season, the amount of water to which they are entitled under their appropriations as the same would have naturally flowed in the natural stream prior to the construction, by appellant and its predecessors in interest, of their irrigation system.

Givens, C.J., and Wm. E. Lee and Varian, JJ., concur.

Budge, J., finding himself disqualified, did not participate.