Schodde v. Twin Falls Land & Water Company/Opinion of the Court
Since the writ of certiorari in this case was granted, the petitioner died, and his executrix was substituted. The writ was allowed to enable us to review the action of the court below in affirming a judgment of the circuit court of the United States for the district of Idaho. The judgment of the circuit court sustained a demurrer to the complaint of the petitioner, who was plaintiff, on the ground that it stated no cause of action. An absolute judgment of dismissal was entered, consequent on the election by the plaintiff to stand on the complaint as filed. The court below summarized the averments of the three counts of the complaint, and as that summary accurately and sufficiently states the case, we adopt and reproduce it, as follows:

'Plaintiff's complaint contains three counts. Briefly stated, the cause of action as set out in the three counts of the complaint is as follows: Plaintiff is the owner of three tracts of land on the banks of Snake river, containing in the aggregate 429.96 acres. Two of these tracts, comtaining 263.96 acres, are on the south bank, and one tract of 160 acres is on the north bank. One of the tracts on the south bank is agricultural land and the other is partly agricultural land and partly mining ground. The tract of land on the north bank is agricultural. In the year 1889 plaintiff's predecessors in interest, and in 1895, the plaintiff himself, appropriated certain quantities of water of the flow of Sanke river for use on said lands. In the first count the quantity is stated in cubic feet per second; in the second and third counts the quantities are stated in miner's inches. The aggregate of water appropriated as alleged in the three counts is referred to in the briefs as 1,250 miner's inches. Soon after this water was appropriated the parties in interest erected water wheels in the river to lift the water to a sufficient height for distribution over the land. Nine of these wheels were erected opposite or near the tracts on the south side of the river, and two near the tract on the north side of the river. These wheels vary in height from 24 to 34 feet. The parties also constructed wing dams in the river, adjoining or in front of the lands owned by them, for the purpose of confining the flow of the water of the river, and raising it at such points above the natural flow of the river, so that the current would drive the water wheels and cause them to revolve and carry the water in buckets attached to the wheels to a height where it would be emptied into flumes and distributed over the lands by ditches, and used thereon to irrigate and cultivate the agricultural land and work the mining ground. It is not alleged in the complaint, but it is assumed, that the river at this point runs between high banks, and that the water is lifted by the wheels at least 20 feet before it is emptied into the flumes for distribution over plaintiff's lands. In the year 1903, while plaintiff was using the appropriated water of the river upon the described premises, the defendant commenced the construction of a dam across Snake river at a point about nine miles westerly from and below the lands of the plaintiff. The work was prosecuted on said dam until its completion in March, 1905. This dam is so constructed as to impound all the water of Snake river flowing at said point, and to raise the water about 40 feet in height. It is alleged that when defendant's dam was filled with water, the water was turned into a canal known as the 'Twin Falls canal,' owned by the defendant and located on the north side of the river; that this canal was constructed at a cost, as plaintiff is informed and believes, of $1,500,000, for the purpose of supplying water for irrigation and domestic purposes to the settlers on about 300,000 acres of arable and arid lands situated below the dam; that for said lands and for a great number of people, being, as plaintiff is informed and believes, five thousand in number, there is no other supply available for irrigation, stock, domestic, or manufacturing purposes, except the water from said canal. It is alleged that by reason of this dam the waters of Snake river have been backed up from said dam and to and beyond plaintiff's premises, and have destroyed the current in the river by means of which plaintiff's water wheels were driven and made to revolve and raise the water to the elevation required for distribution over plaintiff's lands. It is alleged that it is now impossible for plaintiff to so arrange or change his said dams or water wheels or flumes, or to build or construct other dams or water wheels or flumes that will raise any water whatever from said stream that can be used upon the plaintiff's lands, and by reason thereof plaintiff has not been able to irrigate said lands or any part thereof, or to raise profitable crops thereon, or to use the same as pasture lands, and will not in the future be able to irrigate said lands or to raise profitable crops or any crops thereon as long as defendant's dam is maintained; that there is no other supply of water available for use upon said lands except the waters of Snake river; that by reason of the backing up of said water and stopping the plaintiff from using said water wheels to raise the waters of Snake river to and upon said lands, and cutting off the water supply from plaintiff's lands, he has been damaged in the aggregate sum of $56,650.

'In the first count of the complaint a separate and distinct cause of action is alleged in an averment that about 12 acres of plaintiff's land has been covered by the waters of Snake river, backed up by defendant's dam, but the land is not described or its boundaries given, or any particulars stated, so that the land can be identified or ascertained. To this cause of action defendant interposed a special demurrer on the ground of uncertainty and the improper joinder of two separate causes of action. This special demurrer appears to be admitted.

'The defendant also interposed a general demurrer on the ground that the facts stated in the complaint do not constitute a cause of action against the defendant as to either or any of said counts. The demurrer was sustained by the circuit court, and the plaintiff has brought the cause to this court upon a writ of error.' [--L.R.A.(N.S.) --, 88 C. C. A. 207, 161 Fed. 43.]

The trial court recognized fully the right of the plaintiff to the volume of water actually appropriated for a beneficial purpose. It nevertheless dismissed the complaint on the ground that there was no right under the Constitution and laws of the state of Idaho to appropriate the current of the river so as to render it impossible for others to apply the otherwise unappropriated waters of the river to beneficial uses. The court did not find it necessary to deny that power might be one of the beneficial purposes for which appropriations of water might be made, but in substance held that to uphold as an appropriation the use of the current of the river to the extent required to work the defendant's wheels would amount to saying that a limited taking of water from the river by appropriation for a limited beneficial use justified the appropriation of all the water in the river as incident to the limited benefit resulting from the use of the water actually appropriated. The court said:

'It is conceded and is beyond question, that the statute law as well as judicial authority directly protects plaintiff in all the water he has actually appropriated, diverted, and used; but there is no statute, nor, so far as known, any judicial rulings, protecting him in the establishment and in the use of his water wheels, as he claims to, and must, use them for the diversion of water to his land.'

'As by art. 15, § 3, Constitution of Idaho, all unappropriated waters are subject to appropriation, it follows that all water that plaintiff has legally appropriated belongs to him, but all other is subject to appropriation. It is unquestioned that what he has actually diverted and used upon his land, he has appropriated; but can it be said that all the water he uses or needs to operate his wheels is an appropriation? As before suggested, there is neither statutory nor judicial authority that such a use is an appropriation. Such use also lacks one of the essential attributes of an appropriation,-it is not reasonable.'

After pointing out the limited right of appropriation for beneficial use which had been exercised, considering the quantity of water actually appropriated and the use to which that water was put, the court came to state the vast extent of the incidental appropriation, having no proper relation to beneficial use, which would result from admitting the theory that the plaintiff, because of his limited appropriation for a named beneficial use, had the power to appropriate the entire current of the river for the purpose of making his actual and limited appropriation and meager beneficial enjoyment fruitful. The court said:

'The only way in which his wheels can be used for the purpose he intended them is to preserve the river in the condition it was when he erected them. And with what result? it may be asked. It may be stated as a fact that the banks of the river and the adjacent country sustain such relations to each other that the latter cannot be irrigated by ditches cut from the river in its natural state, and the erection of dams becomes a necessity, which, of course, changing the surface elevation of the water, affects the plaintiff's premises and all others similarly situated. Then, without the dam, the Twin Falls scheme, with all its present great promise, fails. Not only this, but the government is now constructing a dam across the river some distance above plaintiff for another extensive irrigating scheme, known as Minidoka Project, which will take a large amount of the water, and so much that probably there will not be enough left, especially at low stages of the river, for the full operation of the plaintiff's wheels. . . .'

'Suppose from a stream of 1,000 inches a party diverts and uses 100, and in some way uses the other 900 to divert his 100; could it be said that he had made such a reasonable use of the 900 as to constitute an appropriation of it? Or, suppose that when the entire 1,000 inches are running, they so fill the channel that by a ditch he can draw off to his land his 100 inches; can he then object to those above him appropriating and using the other 900 inches, because it will so lower the stream that his ditch becomes useless? This would be such an unreasonable use of the 900 inches as will not be tolerated under the law of appropriation. In effect this is substantially the principle that plaintiff is asking to have established.'

The court of appeals, in affirming the decree of dismissal, did so for substantially the reasons which controlled the trial court. The court of appeals said:

'The assignments of error present the single question whether the facts stated in the complaint constitute a cause of action against the defendant. It is not denied that the plaintiff has the right by appropriation to divert 1,250 miner's inches of waters of the Snake river, mainly for irrigation purposes, and it is not charged by plaintiff that this amount of water is not still in the river, subject to his right of appropriation and diversion. His claim is that he cannot divert it by the means he first adopted for taking the waters from the river, and that the defendant, by placing a dam across the river, has deprived him of the right to the current of the river which, prior to the erection of the dam, rendered his means of diversion available. Is this current and the means adopted for the diversion of the appropriated water part of or attached to plaintiff's right of appropriation? It is contended on the part of the plaintiff that the current of the river is necessarily appurtenant to the water location, and that the means of utilizing that current is attached as an appurtenance to the appropriation. We have not been referred to any case-and we know of none-where either of these propositions has been upheld.'

After elaborately reviewing the general principles upon which the law of appropriation rested, and referring to provisions of the Constitution and statute law of Idaho, and the decisions interpreting and enforcing the same, it was held that the extent of beneficial use was an inherent and necessary limitation upon the right to appropriate. Pointing out the disastrous results which would follow from any other view, the court said:

'If the plaintiff were permitted to own the current of the stream as appurtenant to his right of appropriation and diversion, he would be able to add indefinitely to the water right he would control and own. There might be a great surplus of water in the stream at and above plaintiff's premises, and an urgent demand for a portion of this surplus for beneficial uses, but if an appropriator above should divert a sufficient quantity to lower the current under plaintiff's water wheels so that they would not revolve, the plaintiff would have a cause of action to prevent such an appropriation. It is clear that in such a case the policy of the state to reserve the waters of the flowing streams for the benefit of the public would be defeated.'

And in this connection, in conclusion, it was observed:

'There is, furthermore, the general principle that the right of appropriation must be exercised with some regard to the rights of the public. It is not an unrestricted right. In Basey v. Gallagher, 20 Wall. 670, 683, 22 L. ed. 452, 454, 1 Mor. Min. Rep. 683, the Supreme Court of the United States said: 'Water is diverted to propel machinery in flour mills and saw mills, and to irrigate land for cultivation, as well as to enable miners to work their mining claims; and in all such cases the right of the first appropriator, exercised within reasonable limits, is respected and enforced. We say within reasonable limits, for this right to water, like the right by prior occupancy to mining ground or agricultural land, is not unrestricted. It must be exercised with reference to the general condition of the country and the necessities of the people, and not so as to deprive a whole neighborhood or community of its use, and vest an absolute monopoly in a single individual.'

'In Fitzpatrick v. Montgomery, 20 Mont. 181, 187, 63 Am. St. Rep. 622, 50 Pac. 416, 417, the supreme court of the state of Montana, after referring to what has been just quoted from Basey v. Gallagher, said: 'While any person is permitted to appropriate water for a useful purpose, it must be used with some regard for the rights of the public. The use of water in this state is declared by the Constitution to be a public use. Const. art. 3, § 15. It is easy to see that, if persons, by appropriating the waters of the streams of the state, became the absolute owners of the waters, without restriction in the use and disposition thereof, such appropriation and unconditional ownership would result in such a monopoly as to work disastrous consequences to the people of the state. The tendency and spirit of legislation and adjudication of the northwestern states and territories have been to prevent such a monopoly of the waters of this large section of the country, dependent so largely for prosperity upon an equitable, and, as far as practical, free, use of water by appropriations."

We have freely excerpted from the opinions of the courts below because, in our judgment, they so clearly portray the situation, and correctly apply the law to that situation as resulting from the Constitution and statutes of Idaho and the reiterated decisions of the court of last resort of that state, which are referred to in the margin,  that we might place our decree of affirmance upon the reasons which controlled the courts below. We, however, refer to a contention urged by the petitioner as to the existence of riparian rights in Idaho, and the sanction which those rights, as there recognized, are deemed to give to the asserted power to appropriate the whole current of the river for the purpose of making fruitful the limited appropriation of water which was made. It is not urged that the law of appropriation does not prevail in Idaho, but it is supposed that a system of riparian rights goes hand in hand with the doctrine of appropriation, and that the two coexist and may harmoniously cooperate. But the best demonstration of the error which the proposition involves results from a consideration of the effort made to apply it in this case, and the reasons advanced to sustain it. We say this because it may not be doubted that the application here sought to be made of the doctrine of riparian rights would be absolutely destructive of the fundamental conceptions upon which the theory of appropriation for beneficial use proceeds, since it would allow the owner of a riparian right to appropriate the entire volume of the water of the river, without regard to the extent of his beneficial use. And the incongruity of the proposition is aptly illustrated by the arguments

Consitution of Idaho, art. 14, § 3; Rev. Stat. of Idaho, §§ 3155 et seq.; Laws of Idaho 1903, p. 223.

Malad Valley Irrigating Co. v. Campbell, 2 Idaho, 411, 18 Pac. 52; Geerston v. Barrack, 3 Idaho, 344, 29 Pac. 42; Conant v. Jones, 3 Idaho, 606, 32 Pac. 250; Wilterding v. Green, 4 Idaho, 773, 45 Pac. 134; Boise Irrig. & Land Co. v. Stewart, 10 Idaho, 38, 77 Pac. 25, 321; Sand Point Water & Light Co. v. Panhandle Development Co. 11 Idaho, 405, 83 Pac. 347; Van-Camp v. Emery, 13 Idaho, 202, 89 Pac. 752; Hutchinson v. Watson Slough Ditch Co. 16 Idaho, 484, 133 Am. St. Rep. 125, 101 Pac. 1059; Farmers' Co-op. Ditch Co. v. Riverside Irrig. Dist. 16 Idaho, 525, 102 Pac. 481; Speer v. Stephenson, 16 Idaho, 707, 102 Pac. 365. advanced to sustain it; since those arguments recur to and rest upon the common-law doctrine of riparian rights, of the duty to allow a stream to flow as it was wont, and of the relative rights of all persons bordering upon the stream, arising from their riparian ownership. The misapprehension upon which the contention rests is the assumption that because a certain character of riparian rights may exist in Idaho, therefore such rights as are absolutely incompatible with the rule of prior appropriation for beneficial use may coexist with that system. For instance, the case of Shephard v. Coeur d' Alene Lumber Co. 16 Idaho, 293, 101 Pac. 591, which upheld the right of a riparian proprietor to prevent another from wrongfully virtually taking his water front and cutting him off from ingress to and egress from such water front affords no ground for holding that such riparian rights exist as are wholly incompatible with, and, indeed, destructive of, the system of appropriation for beneficial use. So, again, the license given by the terms of § 3184 of the Revised Statutes of Idaho, excerpted in the margin  as pointed out by the court below does not confer upon such riparian owner the power to appropriate, without reference to beneficial use, the entire volume of a river or its current, to the destruction of rights of others, to make appropriations of the unused water. But the precise question we are considering has been so completely foreclosed by a ruling of the supreme court of the state of Idaho as to leave no room for discussion. Thus, in Van Camp v. Emery, 13 Idaho, 202, 89 Pac. 752,

All persons, companies, and corporations owning or having the possessory title or right to lands adjacent to any stream have the right to place in the channel of or upon the banks or margin of the same, rams or other machines for the purpose of raising the waters thereof to a level above the banks, requisite for the flow thereof to and upon such adjacent lands; and the right of way over and across the lands of others, for conducting said waters, may be acquired in the manner prescribed in the last two sections. the facts were these: The defendant lived above the plaintiff on a stream, and was assumed as a prior appropriator to be entitled to 45 inches of the water of the stream. The plaintiff, who also was an appropriator, but subordinate to the rights of the defendant, complained that the latter had not only diverted his 45 inches, but had erected a dam in the stream so as to impede the flow to his (plaintiff's) intake, and deprive him of his right of appropriation, the dam being put in place by the defendant for the purpose of holding the water so as to give him the benefit of subirrigation of certain meadow lands which he owned. It was held that the defendant, while he had a full right to draw off the 45 inches to which he was entitled as an appropriator for beneficial use, could not, by damming the stream, get more than his beneficial appropriation entitled him to, so as to injure the right of others to appropriate from the stream. In the course of the opinion the court said:

'If the defendant, who lives above plaintiff, is entitled to a priority for 45 inches of water, he may unquestionably divert that quantity; but, when he has once done so, he may not dam the stream below, or hinder or impede the flow of the remaining stream to the plaintiff's headgate. The fact that such dams and impediments hold the water and cause a subirrigation of the adjacent meadows cannot of itself justify the maintenance of such obstructions. Whatever amount of water defendant shows himself entitled to for the irrigation of his meadows or other lands as a prior right over the plaintiff, the judgment should so decree; but beyond that he cannot go under any other pretext or claims for the natural condition of the stream. In this arid country, where the largest duty and the greatest use must be had from every inch of water, in the interest of agriculture and home building, it will not do to say that a stream may be dammed so as to cause subirrigation of a few acres, at a loss of enough water to surface irrigate ten times as much by proper application.'

And the absolute untenability of the contention here made as to riparian rights was again foreclosed by the supreme court of Idaho in Hutchinson v. Watson Slough Ditch Co. 16 Idaho, 484, 133 Am. St. Rep. 125, 101 Pac. 1059. Indeed, in that case the court referred to and adversely disposed of the view taken of the authorities here relied on as sustaining the coexistence of the asserted riparian rights and the doctrine of appropriation. After making a full reference to authorities, in the course of its opinion the court said:

'A riparian proprietor in the state of Idaho has no right in or claim to the waters of a stream flowing by or through his lands that he can successfully assert as being prior or superior to the rights and claims of one who has appropriated or diverted the water of the stream and is applying it to a beneficial use. To this extent, therefore, the common-law doctrine of riparian rights is in conflict with the Constitution and statutes of this state, and has been abrogated thereby.

*  *  *  *  *

'Sight should not be lost of the correct principle involved in such cases; namely, that a riparian owner, as such, acquires no right to the waters flowing by or through his lands that is prior or superior to that of a locator, appropriator, and used of such waters. In other words, there is no such thing in this state as a riparian right to the use of waters, as against an appropriator and used of such waters who has pursued the constitutional and statutory method in acquiring his water right. In order to acquire a prior or superior right to the use of such water, it is as essential that a riparian owner locate or appropriate the waters, and divert the same, as it is for any other user of water to do so.'

As we have pointed out, the court below did not question the right of the plaintiff to take by proper means from the river the quantity of water actually appropriated by him for beneficial use, and our decree of affirmance will therefore not in any way affect such rights.

Affirmed. 

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