Malige v. Barton

253 P. 132, 43 Idaho 431, 1927 Ida. LEXIS 187

Opinion

BUDGE, J.

This is an action to quiet title to the right to the use of the waters of a certain spring adjoining what is referred to in the record as Spring Ravine. The cause was tried to the court and a jury, the jury sitting in an advisory capacity except upon the question of damages. Upon special interrogatories submitted to it the jury found adversely to the contentions of appellant, and the court made its findings, conclusions and decree awarding to respondent the right to the use of the waters in controversy. This appeal is from the judgment.

We have carefully examined the entire record and have reached the conclusion that there is no necessity to discuss or pass upon errors assigned other than on one point which, to our minds, is decisive of the ease. Among other things it appears that respondent developed a small spring adjacent to Spring Ravine, referred to as a fork of Soldiers’ Canyon Creek, by burrowing into a mountain, and obtained therefrom a small body of water which was conducted into a reservoir by means of a pipe-line and conveyed for some distance leading to the village of Lapwai where it was emptied into another reservoir from which it was distributed to the inhabitants of the village and used by them for domestic and other purposes, having been put to such use for a period covering a number of years before the present action was filed.

There is sufficient competent evidence in the record to sustain the court’s finding that the water awarded to respondent was developed by him, and that prior to the development of such water the same never reached the diversion works of appellant and had not heen applied by him to a beneficial use. There is also sufficient competent evidence to show that the development of the water by respondent and its application to the use hereinbefore stated did not diminish the flow of water theretofore received by appellant, since he established no prior right in himself to the use of the water developed by respondent; therefore no damage could have been suffered by him, as alleged in the complaint.

From what has been said it follows 'that the judgment of the trial court is affirmed. Costs awarded to respondent.

¥m. E. Lee, C. J., and Givens, Taylor and T. Bailey Lee, JJ., concur.

Petition for rehearing denied.