Home/Idaho Supreme Court/Idaho Power Co. v. City of Buhl

Idaho Power Co. v. City of Buhl

111 P.2d 1088, 62 Idaho 351, 1941 Ida. LEXIS 19
CourtIdaho Supreme Court
DecidedMarch 29, 1941
DocketNo. 6810.
StatusPublished
Cited by4 cases

This text of 111 P.2d 1088 (Idaho Power Co. v. City of Buhl) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Idaho Power Co. v. City of Buhl, 111 P.2d 1088, 62 Idaho 351, 1941 Ida. LEXIS 19 (Idaho 1941).

Opinions

*354 AILSHIE, J.

Clear Lake, a body of water of about 40 acres surface area, is situated on the North side of Snake River in Gooding county. The lake is surrounded by lands owned by respondents, Systers, who claim to have certain rights to some (7 second feet) of the waters of the lake “for irrigation and domestic purposes, based upon a priority of March 1st, 1889.” Respondent Idaho Power Company, a public utility, engaged in the generation and sale of electric power and energy, operates nine power plants in the state, one of which is at Clear Lake.

June 29, 1914, application for permit, to appropriate 1,000 cubic feet per second of the waters of Clear Lake, “to be used for power,” was filed with the state engineer by William C. Hazzard; permit No. 10415, which was approved July 8, 1914, provided that “the whole of said work... be completed on or before July 8, 1919.” June 27, 1927, the diversion works were completed. July 16, 1927, the application and permit rights were transferred by Hazzard and wife and assigned to the Bankers Trust Company, a Utah corporation. August 12, 1927, the Bankers Trust Company executed a 99-year lease to the Systers. August 27th the Systers executed a deed to the *355 Power Company to all the property, with the exception of 7 second feet of water of Clear Lake, already diverted and used by grantors for irrigation and domestic purposes.

March 12, 1937, appellant City of Buhl (through its agent, H. A. DeNeal) filed application No. 25707 for 1,000 cubic feet per second of the waters of Clear Lake, to be used for “power and municipal purposes for the City of Buhl”; the application was returned for correction and was received and filed the second time May 13, 1937. June 26, 1937, respondent, Idaho Power Company, filed protest against the issuance of permit to appellant, and June 28th respondents, Systers, also filed protest against such issuance. August 2, 1937, hearing was had before the Commissioner of Reclamation and November 9, 1937, appellant’s application was approved by the Commissioner and permit No. 18554 issued November 29, 1937. Appeals were taken to the district court by the respondents; by stipulation of the parties, the appeals were consolidated and the cases tried and submitted as one case. Trial was had to the court on the testimony and exhibits introduced before the Commissioner, and judgment was entered, to the effect that the order of the Commissioner of Reclamation be reversed and set aside, from which judgment defendant City of Buhl has appealed.

Under the rule governing the examination and consideration on appeal of evidence submitted to the trial court, where the witnesses did not personally appear and testify before the court, it becomes our duty to examine and weigh the proofs de novo. (Stoneburner v. Stoneburner, 11 Ida. 603, 607; Jackson v. Cowan, 33 Ida. 525, 526; Cannon v. Seyboldt, 55 Ida. 796, 800; John Hancock Mut. Life Ins. Co. v. Girard, 57 Ida. 198, 202.)

The first point urged on this appeal is that the appeal to the district court, from the order of the Commissioner of Reclamation, was not taken by the respondents within the time prescribed by the statute (sec. 41-203,1. C. A., as amended by chap. 145, 1935 Sess. Laws, p. 359). The statute says: “Such appeals shall be taken within sixty days from the ruling or action of the commissioner.” The *356 controversy arises here out of the circumstance, that the ruling and order of the commissioner bears date “this 9th day of October, 1937”; whereas, the letter signed by the commissioner, directed to the respondent, Idaho Power Company, inclosing order, bears date November 9, 1937. The letter reads as follows:

“Boise
November 9, 1937
Arthur C. Inman
c/o Idaho Power Company
Boise, Idaho
Dear Sir:
I am enclosing herewith an order made and entered this day in the matter of the protest of Otis E. Syster and Mary E. Syster, husband and wife, and the Idaho Power Company against issuance of a permit to the City of Buhl, Idaho, to appropriate 1,000 second feet of the waters of Clear Lake in Gooding County, Idaho, under Application No. 25707, which is self-explanatory.
Yours very truly,
(Sgd.) R. W. Faris
R. W. FARIS,
Commissioner of Reclamation.”

Furthermore, the certified copy of the application for permit shows indorsement thereon of the approval of the commissioner under date of November 29, 1937.

It, therefore, seems to us, that the ruling and order of the commissioner, as drafted, was dated by the draftsman October 9th, and was evidently not signed and approved by the Commissioner until November 9th, the date on which he transmitted the copy to the protestants. In the letter of communication the Commissioner says he is inclosing “order made and entered this day.” In the absence of more definite and direct proofs, as to the actual date of signing and entering the order, we think the court is bound to accept the statement of the Commissioner, made under date of November 9th, saying that the order was made and entered on that day. We *357 conclude that the appeal, taken from the order of the Commissioner, was in time.

It is next contended, that the trial court erred in finding and holding that the application No. 25707, made on behalf of the City of Buhl, was “initiated in trespass upon the lands, properties and rights of Idaho Power Company and of Otis E. and Mary E. Syster,” and in concluding, as a matter of law, that the same was accordingly void.

The decision of this case must necessarily turn upon the question, as to whether the court properly found that appellant’s permit and right or claim was initiated in trespass.

It is the settled rule of decision in this state, that a water appropriation or permit to appropriate the public waters of the state can not be acquired through trespass. (Marshall v. Niagara Springs Orchard Co., 22 Ida. 144, 155; Tobey v. Bridgewood, 22 Ida. 566, 575; Bassett v. Swenson, 51 Ida. 256, 259.) It has also been held, and correctly so, we think, that it is not “trespass per se, to make application for and receive a permit to appropriate the waters of this state, where the point of diversion is upon the land of another, without first acquiring consent or a grant of such right.” (Bassett v. Swenson, 51 Ida. 256, 261.)

The surveyor, Harold Wm. Merritt, who prepared the notes and plats, has certified the plat as follows:

“I, Harold Wm.

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Bluebook (online)
111 P.2d 1088, 62 Idaho 351, 1941 Ida. LEXIS 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/idaho-power-co-v-city-of-buhl-idaho-1941.