Cross References.

Canals, reservoirs and ditches, power of eminent domain,§ 7-701.

City irrigation systems,§ 50-1801 et seq.

Constitutional provisions relating to water rights, Idaho Const., Art. XV.

Dams restricting the free and uninterrupted passage of fish, building or maintaining unlawful,§ 36-906.

Drainage districts,§ 42-2901 et seq.

Interference with ditches, canals or reservoirs,§ 18-4301 et seq.

Irrigation districts, Title 43, Idaho Code.

Preservation of Big Payette lake by appropriation by state of unappropriated waters thereof,§ 67-4301.

Preservation of Box Canyon waters by appropriation by state of unappropriated waters thereof,§ 67-4310. Preservation of Malad Canyon waters by appropriation by state of unappropriated waters thereof,§ 67-4307.

Preservation of Priest, Pend d’Oreille, and Coeur d’Alene lakes by appropriation by state of unappropriated waters thereof,§ 67-4304.

Preservation of waters of Big Springs area by appropriation by state of unappropriated waters thereof,§ 67-4309.

Preservation of waters of Niagara Springs by appropriation by state of unappropriated waters thereof,§ 67-4308.

Preservation of waters of Thousand Springs area by appropriation by state of unappropriated waters thereof,§ 67-4311.

Water companies for municipal water supply,§§ 30-801, 30-802.

Water power mills to have screens to prevent fish from entering,§ 36-906.

Water users’ associations: Exemption from taxes,§ 30-804.

Water users’ associations for maintenance of community lateral ditches,§ 42-1301 et seq.

Compiler’s Notes.

History of Irrigation Law.

History of Irrigation Law. Two acts passed in 1881 were the basis of the irrigation law of the state for a number of years. The act of Feb. 10, 1881 (Laws 1881, p. 267) regulated the appropriation of water, requiring the posting of notices at the point of diversion and the recording of the same as in the case of mining claims, and prescribing the manner of procuring rights of way by proceedings before the county commissioners. The act of Feb. 7 (Laws 1881, p. 273) regulated the distribution of water through watermasters whose election and duties were therein provided for. The provisions of these two acts were substantially perpetuated in R.S.,§§ 3155-3205.

A new act covering the appropriation of water and providing for fixing water rates by the district court was enacted in 1895 (Laws 1895, p. 174). This act was in part reenacted and in part repealed by the act of Feb. 25, 1899 (Laws 1899, p. 380) which added several new provisions to the law and gave to the county commissioners jurisdiction to fix water rates. The appropriation provisions of the 1899 law were repealed by Laws 1903, p. 223, which, for the first time, departed from the old system of posting and recording notices of appropriation, placing the matter in the hands of the state engineer. The act of 1903, with such sections of the 1899 and earlier laws as are still in force, comprise the basis of this title, which has been frequently amended since the enactment of the R.C.

Compiler’s notes.

Compiler’s notes. S.L. 1919, ch. 8, § 38, p. 65 (§ 67-3401 herein) abolished the office of state engineer, and § 37 of the same act (§ 67-3301 herein) vested his powers and duties in the department of reclamation. The substitutions of offices and officials authorized by that act have been made accordingly, the text of the preexisting law not being changed except insofar as necessary in making substitutions.

S.L. 1970, ch. 12, § 2, p. 21 (§ 42-1801a herein) substituted the department of water administration for the department of reclamation. In 1974 such act was amended by 1974, ch. 20, § 28, p. 533 wherein the department of water resources was substituted for the department of water administration.

Adverse User.

Where owners of irrigation ditch continued to use ditch after owner of land where point of diversion was located revoked license, dissolution of the injunction against interference with the use of the ditch was sufficient notice to owner of land of adverse use by owners of ditch to start the prescriptive period. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936).

Appropriation of Water.

To perfect an adverse claim for water ripening into title, claimant must show that his use of the water deprived the prior appropriators of water at times when such prior appropriators actually needed the water; the use does not become adverse until it interferes with the use thereof by the prior appropriators, and therefore proof merely that claimant used water and claimed the right to use it is no proof whatever of adverse use. Head v. Merrick, 69 Idaho 106, 203 P.2d 608 (1949). Appropriation of Water.

If one appropriates water for beneficial use, and then sells, rents, or distributes it to others who apply it to such beneficial use, he has a valuable right which is entitled to protection as property right. Murray v. Public Utils. Comm’n, 27 Idaho 603, 150 P. 47 (1915).

This section indicates that water is subject to appropriation only when flowing in its natural channel. Rabido v. Furey, 33 Idaho 56, 190 P. 73 (1920).

Spring situated wholly on government homestead entry is source from which valid water appropriation may be made, with entryman’s consent. Short v. Praisewater, 35 Idaho 691, 208 P. 844 (1922); Keiler v. McDonald, 37 Idaho 573, 218 P. 365 (1923).

Where an appropriator diverted and applied water on his own land to a beneficial use without the initiation of the right in trespass, and diverted the water, continuously and uninterruptedly, for such beneficial use, his right by virtue of appropriation was complete. Jones v. McIntire, 60 Idaho 338, 91 P.2d 373 (1939).

Where village duly appropriated to its beneficial use all water, which was public, from certain springs, and no other persons had ever appropriated this water to beneficial use, village acquired right to use all the water from these springs. Village of Peck v. Denison, 92 Idaho 747, 450 P.2d 310 (1969).

Where an owner of land diverted water from a spring on the land and applied it to a beneficial use, the appropriation was valid when made, and the water right thus perfected was appurtenant to the land which received the benefit of the water and thus passed on to the person who acquired title to the benefited land. Parke v. Bell, 97 Idaho 67, 539 P.2d 995 (1975).

Diversion is a prerequisite to appropriation of water, along with the application of such water to a beneficial use. Hidden Springs Trout Ranch, Inc. v. Hagerman Water Users, Inc., 101 Idaho 677, 619 P.2d 1130 (1980).

While the prior appropriation doctrine gives pre-eminent rights to those who put water to beneficial use first in time, this is not an absolute rule without exception. The Idaho Constitution and statutes do not permit waste and require water to be put to beneficial use or be lost. Rangen, Inc. v. Idaho Dep’t of Water Res. (In re Distrib. of Water to Water Right Nos. 36-02551 & 36-07694), 160 Idaho 119, 369 P.3d 897 (2016).

Channel of Creek.

Substitution of an artificial drainage channel for the natural channel of creek did not affect rights of users of waters of creek to use of its water course to drain away waste waters arising from use of the waters of the creek. Poole v. Olaveson, 82 Idaho 496, 356 P.2d 61 (1960).

Compliance with Statutes.

The statutes, with respect to proof of application for beneficial use of public water and allotment of rights appurtenant to land, have application only where there is a full compliance with such statutes; otherwise the right to assert the doctrine of relation is cut off. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936).

Constitutionality.

Contracts for Water Rights.

This section is in harmony with Idaho Const., Art. XV, § 1. Adams v. Twin Falls-Oakley Land & Water Co., 29 Idaho 357, 161 P. 322 (1916); Short v. Praisewater, 35 Idaho 691, 208 P. 844 (1922); Poole v. Olaveson, 82 Idaho 496, 356 P.2d 61 (1960). Contracts for Water Rights.

Contractual provision empowering company to refuse delivery of water during default by user in payment other than for maintenance was contrary to public policy and void. Adams v. Twin Falls-Oakley Land & Water Co., 29 Idaho 357, 161 P. 322 (1916).

Contract between irrigation company and purchaser of water rights to the effect that no water should be delivered to the latter until maintenance assessments for current year have been paid to company was valid. Parrott v. Twin Falls Salmon River Land & Water Co., 32 Idaho 759, 188 P. 451 (1920).

Irrigation company was without authority to withhold water delivery on account of nonpayment of past due assessments. Reynolds v. North Side Canal Co., 36 Idaho 622, 213 P. 344 (1923).

Provision in contract between a Carey Act company and settler upon school land empowering company, upon failure by settler to make required payments for the purchase of water rights, to declare a forfeiture of contract and all payments made theretofore is void. Rogers v. Thomas, 38 Idaho 802, 226 P. 165 (1924).

Where state contracts provided for storage dams, permittee was authorized to take all waters up to amount specified in contract, whether or not it included flood or winter flow of granted streams. Big Wood Canal Co. v. Chapman, 45 Idaho 380, 263 P. 45 (1927).

Entity that applies the water to beneficial use has a right that is more than a contractual right. United States v. Pioneer Irrigation Dist. (In re SRBA Case No. 3957), 144 Idaho 106, 157 P.3d 600 (2007).

Damages for Loss of Use.

Plaintiff, who had prior decreed rights to water, was entitled to recover damages from the defendants for loss or damage to plaintiff’s crops proximately caused by acts of defendants, which deprived plaintiff of the water decreed to his land, and of the use of which he was entitled. Follett v. Taylor Bros., 77 Idaho 416, 294 P.2d 1088 (1956).

Delivery to Outsider.

State may forbid appropriation and diversion of its public waters for application and use beyond confines of state. Walbridge v. Robinson, 22 Idaho 236, 125 P. 812 (1912).

Delivery of water to outsider where same is not needed by user in district is not dedication. Yaden v. Gem Irrigation Dist., 37 Idaho 300, 216 P. 250 (1923).

Diversion.

It is sufficient, for establishing diversion, that the water flows in a different channel than it would have done absent intervention by the appropriator; where, instead of running downhill directly into the creek, water entered a pipe and traveled approximately one-half mile before the water in dispute was lost as seepage and reemerged would be considered diverted for purposes of appropriation. Hidden Springs Trout Ranch, Inc. v. Hagerman Water Users, Inc., 101 Idaho 677, 619 P.2d 1130 (1980).

Evidence of Compliance With Statute.

Evidence Showing Diversion and Use.

Where an irrigation district has not proven the issuance of a permit by the department of water resources, nor made a showing of a compliance with the law with respect to appropriation, it is not entitled to prove a beneficial using of an additional amount of water from a natural stream. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936). Evidence Showing Diversion and Use.

Evidence supported a finding that the owners of an irrigation ditch, who had diverted water from a certain creek for many years, had established a right thereto by actual diversion and use. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936).

Exceptions to Section.

This section does not apply to waste water from irrigation system, although such water may be flowing in natural channel of stream. United States v. Haga, 276 F. 41 (D. Idaho 1921).

This section does not include percolating waters. Public Utils. Comm’n v. Natatorium Co., 36 Idaho 287, 211 P. 533 (1922).

Interstate Streams.

Under the doctrine of appropriation, one state may acquire priority over another state in the use of water of an interstate stream. Weiland v. Pioneer Irrigation Co., 259 U.S. 498, 42 S. Ct. 568, 66 L. Ed. 1027 (1922).

Laches Applied to Purchaser of Land.

The equitable principle of laches and negligence barred the correction of water right decree which had been entered 16 years prior and 7 years had elapsed after petitioner had purchased the land, during which time the rights of other owners of water rights had intervened. Albion-Idaho Land Co. v. Adams, 58 F. Supp. 579 (D. Idaho 1945).

Local Regulation.

Where a dairymen’s association and a cattle association filed a complaint challenging the constitutionality of Gooding County, Idaho, Ordinance No. 90, which regulated water quality at confined animal feeding operations (CAFOs), the supreme court held that Ordinance 90 did not violate Idaho Const., Art. XII, § 2. While this section provided that control over the appropriation of water was vested in the state, regulation of water quality by local government was not preempted; because of Idaho’s diverse geographical setting, water regulation at CAFOs does not call for a uniform regulatory scheme. Idaho Dairymen’s Ass’n v. Gooding County, 148 Idaho 653, 227 P.3d 907 (2010).

Mandamus to Compel Delivery.

Upon proper demand and tender of payment of assessment for current year, stockholder may compel delivery of water by writ of mandamus. Reynolds v. North Side Canal Co., 36 Idaho 622, 213 P. 344 (1923).

Nature of Water Right.

Clause of this section which provides that right of water user shall not be considered as being a property right in itself but shall become a complement, or one of the appurtenances, of the land on which water is applied, does not deprive or divest right to use of water of any of the qualities or elements of property it otherwise might have. Hard v. Boise City Irrigation & Land Co., 9 Idaho 589, 76 P. 331 (1904). Where the United States bureau of reclamation (BOR) filed water right claims against irrigation entities regarding projects developed pursuant to the Reclamation Act of 1902, any rights held by BOR were subject to rights of the beneficial users that were served by the irrigation districts because, inter alia, (1) federal law deferred to state law in determining the rights to water in the reclamation projects, (2) the beneficial users had an interest that was stronger than mere contractual expectancy, and (3) title to the use of the water was held by the consumers or users of the water. United States v. Pioneer Irrigation Dist. (In re SRBA Case No. 3957), 144 Idaho 106, 157 P.3d 600 (2007).

Policy of State.

The policy of the law of the state is to secure the maximum use and benefit and least wasteful use of its water resources. Poole v. Olaveson, 82 Idaho 496, 356 P.2d 61 (1960).

Prescriptive Right in Ditch Unaffected by Foreclosure.

A foreclosure decree against a land owner did not destroy the prescriptive right of ditch owners to maintain a point of diversion on the landowner’s property, where the owners of such ditch continued as prescriptive users for more than the statutory period prior to the institution of a suit seeking a decree of adjudication of water rights, and the fact that the ditch owners were joined in the foreclosure suit does not militate against their prescriptive right in such ditch. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936).

Remedies for Nonpayment of Maintenance.

For user’s default in payment of maintenance, water company may proceed either under this section or under§ 42-806 (presently§ 43-806). Adams v. Twin Falls-Oakley Land & Water Co., 29 Idaho 357, 161 P. 322 (1916).

Right of Purchaser After Decree Adjudicating Water Rights.

Where purchaser acquired land after the rendition of water right decree, he received only that which the vendor had for sale, and if the right to correct the decree had been lost by laches or otherwise, the purchaser was in no better position than the vendor. Albion-Idaho Land Co. v. Adams, 58 F. Supp. 579 (D. Idaho 1945).

Rights Between Water Users.

Priority of appropriation gives the better right between those using the water. Beecher v. Cassia Creek Irrigation Co., 66 Idaho 1, 154 P.2d 507 (1944).

It was error for trial court to require users to restrict use to amount of water represented by shares in company, if use was not rotated, since it is policy of the law to restrict use to a percentage, either above or below amount of shares depending upon availability of water and demand. Simonson v. Moon, 72 Idaho 39, 237 P.2d 93 (1951).

Rights of Senior Appropriator.

Rights to Ditches and Water Separate.

A senior appropriator of water retains his right to surface waste and seepage water and may reclaim it, even though such water has been used by a junior appropriator, even for as long as 40 years. Hidden Springs Trout Ranch, Inc. v. Hagerman Water Users, Inc., 101 Idaho 677, 619 P.2d 1130 (1980). Rights to Ditches and Water Separate.

As possessory rights to ditches and to use of water may each have an existence independent of the other, a ditch may be conveyed, reserving water right, or water may be conveyed, reserving ditch. Ada County Farmers Irrigation Co. v. Farmers Canal Co., 5 Idaho 793, 51 P. 990 (1898).

Riparian Rights.

Riparian water rights are not recognized in Idaho. Jones v. McIntire, 60 Idaho 338, 91 P.2d 373 (1939). However, see Drake v. Earhart, 2 Idaho 750, 23 P. 541 (1890); Hutchinson v. Watson Slough Ditch Co., 16 Idaho 484, 101 P. 1059 (1909).

Slough As Water Course.

Where a creek was a continuous water course, the fact that it flowed through sloughs did not change its character or prevent appropriation of waters therefrom. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936). See also, Hutchinson v. Watson Slough Ditch Co., 16 Idaho 484, 101 P. 1059 (1909).

Suit for Exclusive Use and Possession.

Suit by federally recognized Indian tribe brought in federal court against the state and various state agencies, and numerous state officials in their individual capacities seeking title to the banks and submerged lands of lake and various rivers and streams that were within their reservation and a declaratory judgment to establish its entitlement to the exclusive use, occupancy and right to quiet enjoyment of the submerged lands as well as a declaration of the invalidity of all Idaho statutes, ordinances, regulations, customs or usages which purport to regulate, authorize, use or affect in any way the submerged land and a permanent injunction prohibiting the state from permitting or taking any action in violation of the tribe’s rights of exclusive use, was barred by Idaho’s Eleventh Amendment immunity since the exception of Ex Parte Young , 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908), did not apply, and a state forum was available to hear such claims. Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 117 S. Ct. 2028, 138 L. Ed. 2d 438 (1997).

Tiling of Ditch.

Where, in suit by irrigation district to quiet title to ditch on land owned by defendant, defendant complained that a portion of the ditch had been tiled by the plaintiff so as to deprive the defendant of the use of the ditch, the court will assume that ditch was tiled for the purpose of preventing waste, since it is the policy of the law to increase effective use of water and to prevent its waste. Reynolds Irrigation Dist. v. Sproat, 69 Idaho 315, 206 P.2d 774 (1948).

Title of State.

Title to public waters is held by the state in its sovereign capacity as representative of all the people. Walbridge v. Robinson, 22 Idaho 236, 125 P. 812 (1912).

Waste Water.

The interest or title of the state to all waters of the state as provided by this section is not in the proprietary sense, but rather in the sovereign capacity as representative of all the people for the purpose of guaranteeing that the common rights of all shall be equally protected and that no one shall be denied his proper use and benefit of this common necessity. Poole v. Olaveson, 82 Idaho 496, 356 P.2d 61 (1960). Waste Water.

— Appropriation of.

No distinction is to be drawn between waste water appropriated after it has been put to irrigation use and waste water seeping from irrigation canals, and no appropriator of waste water should be able to compel any other appropriator to continue the waste of water which benefits the former. Hidden Springs Trout Ranch, Inc. v. Hagerman Water Users, Inc., 101 Idaho 677, 619 P.2d 1130 (1980).

— Drainage.

Where springs arose in area of respondent’s land and those springs were tributary of the watercourse of a creek, waste water in that area constituted a by-product of the irrigation waters likewise arising in the area and reclaiming of such waste water by drainage into the natural channel of a stream, if without detriment or damage to others is in keeping with the expressed policy of the state to secure the maximum beneficial and least wasteful use of its water resources. Poole v. Olaveson, 82 Idaho 496, 356 P.2d 61 (1960).

Water Right Appurtenant to Land.

Appellants’ decreed water right constitutes real property and such right is appurtenant to appellants’ land to which the water represented thereby has been beneficially applied. Anderson v. Cummings, 81 Idaho 327, 340 P.2d 1111 (1959).

The owners of the old lands, through and by means of the irrigation district, acquired, and for many years applied to the irrigation of their lands, valuable water rights which had become appurtenant and dedicated to their lands, and which were held in trust by the district for their use; they could not thereafter, without their consent, be deprived of the use of that water when needed to irrigate their lands. Bradshaw v. Milner Low Lift Irrigation Dist., 85 Idaho 528, 381 P.2d 440 (1963).

Plaintiffs obtained a ditch right and a portion of the Joe Creek water right as appurtenances to the property when they were conveyed a parcel of land. The district court properly determined that plaintiffs could tap defendant’s pipeline as it crossed plaintiffs’ property to receive water from Joe Creek pursuant to plaintiffs’ water right. Mullinix v. Killgore’s Salmon River Fruit Co., 158 Idaho 269, 346 P.3d 286 (2015).

Water Right As Real Property.

Water rights are included within the definition of real property by§ 55-101. Ireton v. Idaho Irrigation Co., 30 Idaho 310, 164 P. 687 (1917).

Waters from Natural Spring.

It was held that waters from a creek, which was formed by natural springs on privately owned property, still constituted public waters within this section and cognate legislation, and were therefore subject to appropriation. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936). See also Hutchinson v. Watson Slough Ditch Co., 16 Idaho 484, 101 P. 1059 (1909).

Insofar as the rights of appropriation are concerned, waters of a natural spring or stream, flowing from the lands of another where they arise, are subject to diversion and application to beneficial use if there is not a prior right in existence. Jones v. McIntire, 60 Idaho 338, 91 P.2d 373 (1939); Maher v. Gentry, 67 Idaho 559, 186 P.2d 870 (1947). Plaintiffs, who established beneficial use of spring waters for a period in excess of 40 years, which beneficial use had been known to the defendants, were entitled to have title quieted in the springs, regardless of whether the springs were public or private. Whittaker v. Kauer, 78 Idaho 94, 298 P.2d 745 (1956).

It is only when the waters of natural springs flow on privately owned lands into a natural channel that such waters when flowing in the natural channel become public waters subject to appropriation, diversion and application to a beneficial use. Nordick v. Sorensen, 81 Idaho 117, 338 P.2d 766 (1959).

Lava Hot Springs.

The rights to the use of all hot waters that rise and flow at Lava Hot Springs are water rights that have been appropriated under state law and are subject to regulation by the Idaho department of water resources under the provisions of title 42 of the Idaho Code (§§ 42-101, 42-103, 42-104 and 42-106).OAG 97-1.

The Lava Springs foundation has the authority under title 67, chapter 44, Idaho Code, to enter into agreements involving easements with private parties to discharge the foundation’s waste water. However, the foundation may not authorize the use of any portion of its water in a manner that is inconsistent with its state water right. Other parties seeking to use the foundation’s waste water for new uses or on lands other than the authorized place of use must file for a permit from the Idaho department of water resources.OAG 97-1.

Since Idaho law, Idaho Const., Art. XV, § 3 and§§ 42-101, 42-103, 42-104 and 42-106, specifies the law of prior appropriation as the method to establish the right to use water in Idaho, absent a clear statutory expression by the legislature to create an exception to the appropriation statutes, all rights to the use of water in Idaho must be acquired by appropriation and the language in§§ 67-4401 and 67-4403 is not a clear expression that the legislature intended to create an exception from the appropriation process for the waters at Lava Hot Springs as the most reasonable interpretation of this language is that the foundation’s jurisdiction and control over waters at Lava Hot Springs refers to those waters that have already been appropriated or that will be appropriated in the future.OAG 97-1.

Idaho Law Review.

Idaho Law Review. — Why Does Idaho’s Water Law Regime Provide for Forfeiture of Water Rights?, Peter R. Anderson and Aaron J. Kraft. 48 Idaho L. Rev. 419 (2012).

A Primer on Groundwater Law, Joseph W. Dellapenna. 49 Idaho L. Rev. 265 (2013).

Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

Federal Reserved Water Rights as a Rule of Law, Michael C. Blumm. 52 Idaho L. Rev. 369 (2016).

Am. Jur. 2d.

C.J.S.

Cross References.

Acre foot recognized as standard for stored water,§ 42-202.

Department of water resources,§ 42-1701 et seq.

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation) has been changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

Courts Must Recognize Standard.

This section is the measurement of water which should be recognized by court in entering decree of distribution of water. Lee v. Hanford, 21 Idaho 327, 121 P. 558 (1912).

Requirements of Decree.

The requirement that a decree of water rights set out a specific water measurement is not imposed by this section as this section simply provides the basic unit of measurement of water for whatever purpose may be relevant. Village of Peck v. Denison, 92 Idaho 747, 450 P.2d 310 (1969).

Cross References.

Adjudication of water rights,§§ 42-1401 to 42-1414.

Adverse User.

Compliance with Statutes.

Where owners of irrigation ditch continued to use ditch after owner of land where point of diversion was located revoked license, dissolution of the injunction against interference with the use of the ditch was sufficient notice to owner of land of adverse use by owners of ditch to start the prescriptive period. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936). Compliance with Statutes.

The statutes, with respect to proof of application for beneficial use of public water and allotment of rights appurtenant to land, have application only where there is a full compliance with such statutes, otherwise, the right to assert the doctrine of relation is cut off. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936).

Constitutional Use Water Right.

A constitutional use water right is created simply by diverting unappropriated waters and putting those waters to beneficial use. Nettleton v. Higginson, 98 Idaho 87, 558 P.2d 1048 (1977).

Where the water right of the upstream appropriator with a valid permit was junior to that of the downstream appropriator with constitutional water rights, and the former’s impoundment of water interfered with the latter’s senior entitlement, the upstream appropriator was liable for any damages caused by the wrongful interference. R.T. Nahas Co. v. Hulet, 114 Idaho 23, 752 P.2d 625 (Ct. App. 1988).

An appropriator, whose right is based upon a valid, although unadjudicated, constitutional method of appropriation, retains a senior claim in relation to a person holding a later issued permit. R.T. Nahas Co. v. Hulet, 114 Idaho 23, 752 P.2d 625 (Ct. App. 1988).

Trial court properly determined that United States had not asserted its water rights under the constitutional method of appropriation because, under that method the United States, as the claimant, was required to put the water to beneficial use, which it had failed to do. On the other hand, a livestock company had established its rights to the instream water because the company’s predecessors, by watering their stock, had put the water to beneficial use. Joyce Livestock Co. v. United States (In re SRBA Case No. 39576), 144 Idaho 1, 156 P.3d 502, cert. denied, 552 U.S. 990, 128 S. Ct. 487, 169 L. Ed. 2d 339 (2007).

Continued Use a Valid Appropriation.

Continued and uninterrupted use of water for period of more than five years constituted valid appropriation. Short v. Praisewater, 35 Idaho 691, 208 P. 844 (1922).

Evidence in the cited case supported a finding that the owners of an irrigation ditch, who had diverted water from a certain creek for many years, had established a right thereto by actual diversion and use. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936).

Where an appropriator diverted and applied water on his own land to a beneficial use without the initiation of the right in trespass, and diverted the water continuously and uninterruptedly for such beneficial use, his right by virtue of appropriation was complete. Jones v. McIntire, 60 Idaho 338, 91 P.2d 373 (1939).

Dependence on Supply.

The right of appropriation does not carry with it an unconditional guarantee of water regardless of supply of water available. Nettleton v. Higginson, 98 Idaho 87, 558 P.2d 1048 (1977).

Ditch Owners’ Rights After Foreclosure.

A foreclosure decree against a landowner did not destroy the prescriptive right of ditch owners to maintain a point of diversion on the landowner’s property, where the owners of such ditch continued as prescriptive users for more than the statutory period prior to the institution of a suit seeking a decree of adjudication of water rights, and the fact that the ditch owners were joined in the foreclosure suit does not militate against their prescriptive right in such ditch. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936).

Ditch Users Not Trespassers.

Where a landowner attempted to revoke the license of ditch owners, which ditch was situated upon the property of the landowner, but, notwithstanding such attempted revocation, the ditch owners continued to use the ditch for the prescriptive period, which use was continuous, notorious, and under claim of right, the landowner or his successors in estate cannot contend that the ditch owners, after such revocation, were mere trespassers. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936).

Downstream Landowner.

Where, under his license and certificate of water right plaintiff, downstream landowner, was entitled to year round unobstructed flow of creek for irrigation and domestic purposes up to 1.44 cubic feet per second, and other plaintiffs owned right to have the water proceed through their field by diversion ditch, plaintiff was entitled to have the water flow uninterrupted any time it would reach his land. Ward v. Kidd, 87 Idaho 216, 392 P.2d 183 (1964).

Evidence of Compliance With Statutes.

Where an irrigation district had not proven the issuance of a permit by the department of water resources, nor made a showing of a compliance with the law with respect to appropriation, it was not entitled to prove a beneficial using of an additional amount of water from a natural stream. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936).

Natural Springs.

Water of natural springs is public water and subject to valid appropriation to beneficial use. Rabido v. Furey, 33 Idaho 56, 190 P. 73 (1920); Short v. Praisewater, 35 Idaho 691, 208 P. 844 (1922).

Waters from a creek, which was formed by natural springs on privately owned property, constituted public waters within this section and cognate legislation, and were therefor subject to appropriation. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936). See also, Hutchinson v. Watson Slough Ditch Co., 16 Idaho 484, 101 P. 1059 (1909).

Waters of a natural spring or stream, flowing from the lands of another where they arose were subject to diversion and application to beneficial use if there was not a prior right in existence. Jones v. McIntire, 60 Idaho 338, 91 P.2d 373 (1939); Maher v. Gentry, 67 Idaho 559, 186 P.2d 870 (1947).

It is only when the waters of natural springs flow on privately owned lands into a natural channel that such waters become public waters subject to appropriation, diversion and application to a beneficial use. Nordick v. Sorensen, 81 Idaho 117, 338 P.2d 766 (1959).

Ownership of Land.

Where village duly appropriated to its beneficial use all water, which was public, from certain springs, and no other persons had ever appropriated this water to beneficial use, village acquired right to use all the water from these springs. Village of Peck v. Denison, 92 Idaho 747, 450 P.2d 310 (1969). Ownership of Land.

Water may be appropriated for beneficial use on land not owned by appropriator, and such water rights become appropriator’s property. First Sec. Bank v. State, 49 Idaho 740, 291 P. 1064 (1930).

Percolating Waters.

Percolating subterranean waters may be appropriated either by the statutory permit method, or by actual diversion and application to a beneficial use. Silkey v. Tiegs, 51 Idaho 344, 5 P.2d 1049 (1931).

Quiet Title Action.

Plaintiffs, who established beneficial use of spring waters for a period in excess of 40 years, which beneficial use had been known to the defendants, were entitled to have title quieted in the springs, regardless of whether the springs were public or private. Whittaker v. Kauer, 78 Idaho 94, 298 P.2d 745 (1956).

Relation to Other Laws.

The right defined by this section is not abrogated by§ 42-229, but the latter section regulates the method and means by which one may perfect a right to the use of water. State ex rel. Tappan v. Smith, 92 Idaho 451, 444 P.2d 412 (1968).

Riparian Rights.

Riparian water rights are not recognized in Idaho. Jones v. McIntire, 60 Idaho 338, 91 P.2d 373 (1939). However, see Drake v. Earhart, 2 Idaho 750, 23 P. 541 (1890); Hutchinson v. Watson Slough Ditch Co., 16 Idaho 484, 101 P. 1059 (1909).

Seepage Water.

This section does not apply to waste water from irrigation system, although such water may be flowing in the natural channel of stream. United States v. Haga, 276 F. 41 (D. Idaho 1921).

Slough As Watercourse.

Where a creek was a continuous watercourse, the fact that it flowed through sloughs did not change its character or prevent appropriation of waters therefrom. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936). See also, Hutchinson v. Watson Slough Ditch Co., 16 Idaho 484, 101 P. 1059 (1909).

Subterranean Waters.

Rule of first in time, first in right applied to subterranean waters confined horizontally between impervious strata in such a manner that when artificial openings were made in the upper stratum water was forced to, or above, surface of ground. Hinton v. Little, 50 Idaho 371, 296 P. 582 (1931).

Vesting of Rights.

A water right does not vest until the statutory procedures for obtaining a license are completed, including the issuance of the license. Idaho Power Co. v. Idaho Dep’t of Water Res. (In re Licensed Water Right No. 03-7018), 151 Idaho 266, 255 P.3d 1152 (2011).

Lava Hot Springs.

The rights to the use of all hot waters that rise and flow at Lava Hot Springs are water rights that have been appropriated under state law and are subject to regulation by the Idaho department of water resources under the provisions of title 42 of the Idaho Code (§§ 42-101, 42-103, 42-104 and 42-106).OAG 97-1.

The Lava Springs foundation has the authority under title 67, chapter 44, Idaho Code, to enter into agreements involving easements with private parties to discharge the foundation’s waste water. However, the foundation may not authorize the use of any portion of its water in a manner that is inconsistent with its state water right. Other parties seeking to use the foundation’s waste water for new uses or on lands other than the authorized place of use must file for a permit from the Idaho department of water resources.OAG 97-1.

Since Idaho law, Idaho Const., Art. XV, § 3 and§§ 42-101, 42-103, 42-104 and 42-106, specifies the law of prior appropriation as the method to establish the right to use water in Idaho, absent a clear statutory expression by the legislature to create an exception to the appropriation statutes, all rights to the use of water in Idaho must be acquired by appropriation and the language in§§ 67-4401 and 67-4403 is not a clear expression that the legislature intended to create an exception from the appropriation process for the waters at Lava Hot Springs as the most reasonable interpretation of this language is that the foundation’s jurisdiction and control over waters at Lava Hot Springs refers to those waters that have already been appropriated or that will be appropriated in the future.OAG 97-1.

Idaho Law Review.

Idaho Law Review. — Why Does Idaho’s Water Law Regime Provide for Forfeiture of Water Rights?, Peter R. Anderson and Aaron J. Kraft. 48 Idaho L. Rev. 419 (2012).

Am. Jur. 2d.

C.J.S.

Beneficial Use.

Where the United States bureau of reclamation (BOR) filed water right claims against irrigation entities regarding projects developed pursuant to the Reclamation Act of 1902, any rights held by BOR were subject to rights of the beneficial users that were served by the irrigation districts because, inter alia, (1) federal law deferred to state law in determining the rights to water in the reclamation projects, (2) the beneficial users had an interest that was stronger than mere contractual expectancy, and (3) title to the use of the water was held by the consumers or users of the water. United States v. Pioneer Irrigation Dist. (In re SRBA Case No. 3957), 144 Idaho 106, 157 P.3d 600 (2007).

Time Allowed Appropriator to Use Water.

Appropriator of water for irrigation purposes, after conducting water to point of intended use, had a reasonable length of time to apply it to such intended use. Hall v. Blackman, 8 Idaho 272, 68 P. 19 (1902); Bennett v. Nourse, 22 Idaho 249, 125 P. 1038 (1912).

Use by Junior Appropriators.

To allow a junior, or other appropriator, to establish an adverse right to such water during times when it is not required and not being used by the original appropriator, on the theory that such adverse use was inconsistent with the right of the prior appropriator, would subvert the purpose of the law and encourage wasteful diversion and use of water in violation thereof. Mountain Home Irrigation Dist. v. Duffy, 79 Idaho 435, 319 P.2d 965 (1957).

Under§ 18-4302 and the constitutional policy of securing the maximum use and benefit from water resources, it is the duty of the prior appropriator to allow the water, which he has a right to use, to flow down the channel for the benefit of junior appropriators when he has no immediate need for the use thereof. Mountain Home Irrigation Dist. v. Duffy, 79 Idaho 435, 319 P.2d 965 (1957).

Waste Irrigation Water.

Cited

Where springs arise in area of respondent’s land and those springs were tributary of the watercourse of a creek, waste water in the area constituted a by-product of the irrigation waters likewise arising in the area and reclaiming of such waste water by drainage into the natural channel of a stream, if without detriment or damage to others, is in keeping with the expressed policy of the state to secure the maximum beneficial and least wasteful use of its water resources. Poole v. Olaveson, 82 Idaho 496, 356 P.2d 61 (1960). Cited Marshall v. Niagara Springs Orchard Co., 22 Idaho 144, 125 P. 208 (1912); Village of Peck v. Denison, 92 Idaho 747, 450 P.2d 310 (1969); Stevenson v. Steele, 93 Idaho 4, 453 P.2d 819 (1969).

Lava Hot Springs.

The rights to the use of all hot waters that rise and flow at Lava Hot Springs are water rights that have been appropriated under state law and are subject to regulation by the Idaho department of water resources under the provisions of title 42 of the Idaho Code (§§ 42-101, 42-103, 42-104 and 42-106).OAG 97-1.

The Lava Springs foundation has the authority under title 67, chapter 44, Idaho Code, to enter into agreements involving easements with private parties to discharge the foundation’s waste water. However, the foundation may not authorize the use of any portion of its water in a manner that is inconsistent with its state water right. Other parties seeking to use the foundation’s waste water for new uses or on lands other than the authorized place of use must file for a permit from the Idaho department of water resources.OAG 97-1.

Since Idaho law, Idaho Const., Art. XV, § 3 and§§ 42-101, 42-103, 42-104 and 42-106, specifies the law of prior appropriation as the method to establish the right to use water in Idaho, absent a clear statutory expression by the legislature to create an exception to the appropriation statutes, all rights to the use of water in Idaho must be acquired by appropriation and the language in§§ 67-4401 and 67-4403 is not a clear expression that the legislature intended to create an exception from the appropriation process for the waters at Lava Hot Springs as the most reasonable interpretation of this language is that the foundation’s jurisdiction and control over waters at Lava Hot Springs refers to those waters that have already been appropriated or that will be appropriated in the future.OAG 97-1.

Idaho Law Review.

Idaho Law Review. — Why Does Idaho’s Water Law Regime Provide for Forfeiture of Water Rights?, Peter R. Anderson and Aaron J. Kraft. 48 Idaho L. Rev. 419 (2012).

Am. Jur. 2d.

C.J.S.

Cross References.

Watermasters,§ 42-605.

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation) has been changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

Contracts for Supplemental Water.

Wilder irrigation district has power to enter into contract with federal government to obtain supplemental water supply for irrigation, to be replaced later with water from another source. Board of Dirs. v. Jorgensen, 64 Idaho 538, 136 P.2d 461 (1943).

Cotenants of Canal System.

The cotenant of a canal system must necessarily be able to commingle the waters with other cotenants, if not, condemnation of concurrent ownership in a canal system would never be possible. Canyon View Irrigation Co. v. Twin Falls Canal Co., 101 Idaho 604, 619 P.2d 122 (1980), cert. denied, 451 U.S. 912, 101 S. Ct. 1983, 68 L. Ed. 2d 301 (1981).

Decreed and Undecreed Waters.

Watermaster upon a stream, waters of which have been decreed, cannot be compelled by mandatory injunction to distribute decreed waters of one stream in exchange for undecreed waters of another. Daniels v. Adair, 38 Idaho 130, 220 P. 107 (1923).

Exchange Distinguished.

An exchange differs from commingling, although the two concepts are closely related and may in some circumstances overlap; essentially, commingling occurs when waters are mixed and later separated, and exchange takes place when different waters are traded without being mixed. Canyon View Irrigation Co. v. Twin Falls Canal Co., 101 Idaho 604, 619 P.2d 122 (1980), cert. denied, 451 U.S. 912, 101 S. Ct. 1983, 68 L. Ed. 2d 301 (1981).

Fluctuating Flow.

An easement which granted a power company the right to fluctuate the flow of a river would be construed as granting something in addition to the right of the power company to fill completely the natural channel of the river, since the power company had the latter right without the aid of an easement. Griffeth v. Utah Power & Light Co., 226 F.2d 661 (9th Cir. 1955).

In General.

Party can condemn right to use portion of system of another, if necessary to convey water appropriated by him to land upon which it is to be used and he can also mix waters appropriated by him with those of others in natural watercourse. Berg v. Twin Falls Canal Co., 36 Idaho 62, 213 P. 694 (1922).

Water exchanges are invalid only if they clearly infringe on the rights of other water users. Almo Water Co. v. Darrington, 95 Idaho 16, 501 P.2d 700 (1972).

Injury to Channel.

Water appropriator using natural channel for conveyance of water was responsible for any injury resulting from negligent or unlawful use of such channel. Blaine County Inv. Co. v. Mays, 49 Idaho 766, 291 P. 1055 (1930).

Interruption of Flow.

By virtue of prior appropriation of waters of nonnavigable stream, claimants had right to quantity of water originally appropriated, and, if such flow was interrupted by dam, they had right to cut such dam to extent of obtaining their ordinary flow. Carey Lake Reservoir Co. v. Strunk, 39 Idaho 332, 227 P. 591 (1924).

Where defendant built a series of dams that increased the flow of a river to such extent that plaintiff’s access to his farm land, which was across the river from his place of residence making it necessary for plaintiff to ford the river in order to reach his farm land, was obstructed and plaintiff sought to recover damages on the theory that the dams constituted a nuisance, court held that, by statute, defendant and other appropriators of water for lawful purposes had right to use channel of natural streams for carrying stored water or water diverted from other streams. Johnson v. Utah Power & Light Co., 215 F.2d 814 (9th Cir. 1954).

Use of Natural Channel.

The current of a river cannot be appropriated by a riparian proprietor in Idaho, even assuming the possible persistence in that state of the doctrine of riparian rights, in view of statutes declaring the right of appropriators of water for irrigation or other lawful purpose to use the channel of natural streams for carrying stored water or water diverted from other streams. Johnson v. Utah Power & Light Co., 215 F.2d 814 (9th Cir. 1954).

The use of the natural channel of a stream to carry water not discharged by one pumping unit to another pumping unit did not constitute appropriation of the water at two points of diversion. Keller v. Magic Water Co., 92 Idaho 276, 441 P.2d 725 (1968).

Am. Jur. 2d.

§ 42-106. Priority.

As between appropriators, the first in time is first in right.

History.

R.S., § 3159; 1899, p. 380, § 4; reen. R.C. & C.L., § 3245; C.S., § 5561; I.C.A.,§ 41-106.

Cross References.

Priority between persons who have settled on land receiving water for agricultural purposes under a sale, rental or distribution, is subject to reasonable limitations as to the quantity of water used and the time of use, Idaho Const., Art. XV, § 5.

Right of priority and preferences as between domestic, irrigation, and mining uses, Idaho Const., Art. XV, § 3.

Appropriation by Drainage District.

Drainage district, by constructing drain which destroyed drain of prior appropriator of waste and seepage waters, did not thereby destroy his right to such waters. Sebern v. Moore, 44 Idaho 410, 258 P. 176 (1927).

Completion of Appropriation.

Contravention of Constitutional Provisions.

Where an appropriator diverted and applied water on his own land to a beneficial use without the initiation of the right in trespass, and diverted the water, continuously and uninterruptedly, for such beneficial use, his right by virtue of appropriation was complete. Jones v. McIntire, 60 Idaho 338, 91 P.2d 373 (1939). Contravention of Constitutional Provisions.

One who initiates right on state property, subsequent to existing right, does so subject to such existing right, and legislation, substituting procedure or time for perfection of original right, does not necessarily contravene any constitutional provisions. Big Wood Canal Co. v. Chapman, 45 Idaho 380, 263 P. 45 (1927).

Date of Priority.

When two persons as partners appropriated water sufficient to irrigate 480 acres of land, owned by them as tenants in common, in 1872, and actually irrigated 200 acres of land until 1886, when they severed their interests, right of each to his respective share of water appropriated by them jointly dates from 1872. Hall v. Blackman, 8 Idaho 272, 68 P. 19 (1902).

Water right acquired dated from time when water was actually delivered upon the ground for the use of which it was diverted, and the priority thereby acquired was not broken by a subsequent sale of the claim, ditch and water right, and transfer of possession to vendee. Brown v. Newell, 12 Idaho 166, 85 P. 385 (1906).

Date of application of water to beneficial use, and not date of commencement of construction of diversion works, determined priority where right was dependent upon appropriation and not upon application for permit. Rabido v. Furey, 33 Idaho 56, 190 P. 73 (1920).

Decree Establishing Priority.

Where priority of appropriation, amount of water appropriated and beneficial use thereof have been established, court, in its decree establishing such facts, cannot go further and dictate manner in which appropriator shall use the water, so long as it is adapted to a beneficial purpose. McGinness v. Stanfield, 6 Idaho 372, 55 P. 1020 (1898).

Diversion by Subsequent Appropriator.

The first appropriator of water has the first right thereto, and clear and convincing proof must be given to show that such prior appropriator will not be injured or affected by the diversion made by a subsequent appropriator. Silkey v. Tiegs, 54 Idaho 126, 28 P.2d 1037 (1934).

Finding of Priority.

In action to quiet title to water appropriated from public stream, where issue joined was one of priority, court needed to find actual appropriation made by each appropriator, giving time appropriation was made and quantity of water appropriated to beneficial use by each appropriator. Lee v. Hanford, 21 Idaho 327, 121 P. 558 (1912).

Grant of Vested Rights or Appropriation Permit.

State engineer (director of department of water resources) had no right, power or authority to interfere with vested rights or to grant a permit for appropriation and diversion of water of stream, which had already been diverted and applied to a beneficial use. Lockwood v. Freeman, 15 Idaho 395, 98 P. 295 (1908); Nielson v. Parker, 19 Idaho 727, 115 P. 488 (1911). An appropriator, whose right is based upon a valid, although unadjudicated, constitutional method of appropriation, retains a senior claim in relation to a person holding a later issued permit. R.T. Nahas Co. v. Hulet, 114 Idaho 23, 752 P.2d 625 (Ct. App. 1988).

Interstate Streams.

Right obtained by appropriation of water from stream in one state for use on lands in another state is superior to later appropriation in former state for use in former state. Weiland v. Pioneer Irrigation Co., 259 U.S. 498, 42 S. Ct. 568, 66 L. Ed. 1027 (1922).

Manner of Appropriation.

Whether party obtains any right to water by his attempted appropriation depends upon whether water was subject to appropriation at that place, and on manner in which he attempted to appropriate it. Rabido v. Furey, 33 Idaho 56, 190 P. 73 (1920).

Nature of Right.

One who first appropriated all the waters of creek, and since appropriation continually used same for purpose of irrigating his lands, was entitled to all of said waters, to the extent of the capacity of his ditches, necessary to the proper irrigation of his lands, as against subsequent locators. Hillman v. Hardwick, 3 Idaho 255, 28 P. 438 (1891) (see also, Nordick v. Sorensen, 81 Idaho 117, 338 P.2d 776 (1959)); Village of Peck v. Denison, 92 Idaho 747, 450 P.2d 310 (1969).

The basic law of water rights in Idaho, that first in time is first in right, creates a vested right, protected by the constitution and by this section. Board of Dirs. v. Jorgensen, 64 Idaho 538, 136 P.2d 461 (1943).

It is the unquestioned rule in Idaho that priority of appropriation gives the better right between those using water; and as between appropriators, the first in time is the first in right. Beecher v. Cassia Creek Irrigation Co., 66 Idaho 1, 154 P.2d 507 (1944).

Priorities.

First appropriation of water for useful or beneficial purposes gives prior right thereto, and right once vested will be protected and upheld unless abandoned. Malad Valley Irrigation Co. v. Campbell, 2 Idaho 411, 18 P. 52 (1888); Geertson v. Barrack, 3 Idaho 344, 29 P. 42 (1892); Dunniway v. Lawson, 6 Idaho 28, 51 P. 1032 (1898).

Doctrine of priority must be applied although its application may be harsh and unjust in the particular case. Kirk v. Bartholomew, 3 Idaho 367, 29 P. 40 (1892).

Right of prior appropriator of water to use of same to extent of his appropriation is not defeated by his having, through mistake, used a portion of water on land belonging to another. Mahoney v. Neiswanger, 6 Idaho 750, 59 P. 561 (1899).

Each junior appropriator is entitled to divert water only when the rights of previous appropriators have been satisfied. R.T. Nahas Co. v. Hulet, 114 Idaho 23, 752 P.2d 625 (Ct. App. 1988).

Protection of Right.

Where prior appropriation and right to use of water was established, appropriator was entitled to have sufficient unappropriated waters flow down to his point of diversion to supply his right, and injunction against interference therewith was proper protective relief. Moe v. Harger, 10 Idaho 302, 77 P. 645 (1904). Plaintiff, who had prior decreed rights to water was entitled to recover damages from the defendants for loss or damage to plaintiff’s crops proximately caused by acts of defendants, which deprived plaintiff of the water decreed to his land, and to the use of which he was entitled. Follett v. Taylor Bros., 77 Idaho 416, 294 P.2d 1088 (1956).

Where, under his license and certificate of water right, plaintiff was entitled to year round unobstructed flow of creek for irrigation and domestic purposes up to 1.44 cubic feet per second, and other plaintiffs owned right to have the water proceed through their field by diversion ditch, plaintiffs were entitled to have the water flow uninterrupted any time it would reach their land. Ward v. Kidd, 87 Idaho 216, 392 P.2d 183 (1964).

Where the water right of the upstream appropriator with a valid permit was junior to that of the downstream appropriator with constitutional water rights, and the former’s impoundment of water interfered with the latter’s senior entitlement, the upstream appropriator was liable for any damages caused by the wrongful interference. R.T. Nahas Co. v. Hulet, 114 Idaho 23, 752 P.2d 625 (Ct. App. 1988).

Riparian Rights Repudiated.

Prior appropriator of water has right to use thereof which is superior to claim of riparian proprietor not based upon appropriation but on doctrine of riparian rights. Drake v. Earhart, 2 Idaho 750, 23 P. 541 (1890).

Springs As Public Waters.

It is well settled that the waters of natural springs, which form a natural stream or streams flowing off the premises on which they arise, are public waters subject to appropriation, diversion and application to a beneficial use. Maher v. Gentry, 67 Idaho 559, 186 P.2d 870 (1947).

Subterranean Waters.

First appropriator of subterranean waters is first in right. Bower v. Moorman, 27 Idaho 162, 147 P. 496 (1915).

Lava Hot Springs.

The rights to the use of all hot waters that rise and flow at Lava Hot Springs are water rights that have been appropriated under state law and are subject to regulation by the Idaho department of water resources under the provisions of title 42 of the Idaho Code (§§ 42-101, 42-103, 42-104 and 42-106).OAG 97-1.

Since Idaho Const., Art. XV, § 3 and §§ 42-101, 42-103, 42-104 and 42-106, specifies the law of prior appropriation as the method to establish the right to use water in Idaho, absent a clear statutory expression by the legislature to create an exception to the appropriation statutes, all rights to the use of water in Idaho must be acquired by appropriation and the language in §§ 67-4401 and 67-4403 is not a clear expression that the legislature intended to create an exception from the appropriation process for the waters at Lava Hot Springs as the most reasonable interpretation of this language is that the foundation’s jurisdiction and control over waters at Lava Hot Springs refers to those waters that have already been appropriated or that will be appropriated in the future. OAG 97-1. RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — The Elusive Implied Water Right for Fish: Do Off-Reservation Instream Water Rights Exist to Support Indian Treaty Fishing Rights, Comment. 48 Idaho L. Rev. 515 (2012).

Adaptive Resource Management: Using Idaho as an Example of How States Can Implement Effective Policies, Comment. 50 Idaho L. Rev. 293 (2014).

C.J.S.

§ 42-107. Priority — Waste, seepage, and spring waters.

All ditches now constructed or which may hereafter be constructed for the purpose of utilizing seepage, waste or spring water of the state, shall be governed by the same laws relating to priority of right as those ditches, canals and conduits constructed for the purpose of utilizing the waters of running streams.

History.

1899, p. 380, § 23; reen. R.C. & C.L., § 3246; C.S., § 5562; I.C.A.,§ 41-107.

Abandonment of Beneficial Use.

It is only where there is an abandonment of five years of beneficial use by the appropriator that water may be considered as unappropriated water of the state. Colthorp v. Mountain Home Irrigation Dist., 66 Idaho 173, 157 P.2d 1005 (1945).

Appropriation of Waste or Seepage Water.

Seepage water from canal having its source in watershed other than that in which seepage occurs was subject to appropriation under this section. Breyer v. Baker, 31 Idaho 387, 171 P. 1135 (1918); Sebern v. Moore, 44 Idaho 410, 258 P. 176 (1927).

Water right may not be initiated by diverting water from ditch of another against his will and without his consent. Rabido v. Furey, 33 Idaho 56, 190 P. 73 (1920).

Waste or seepage water of which there had been no appropriation prior to construction of drain in which such water collected was in the possession of owner of drain and was therefore not subject to appropriation. Sebern v. Moore, 44 Idaho 410, 258 P. 176 (1927).

Cessation of Waste.

Rights of appropriator of waste or seepage water were subject to the right of owner to cease wasting it, or in good faith to change place or manner of wasting it, or to recapture it, so long as he applied it to a beneficial use. Sebern v. Moore, 44 Idaho 410, 258 P. 176 (1927); Colthorp v. Mountain Home Irrigation Dist., 66 Idaho 173, 157 P.2d 1005 (1945).

Dedication of Waste Water.

If waste water is furnished by canal company to applicant, under a sale or a rental, user thereof can maintain action against canal company only to compel it to furnish him with such waste water, if any, and he cannot compel canal company to furnish perpetual supply of water, such as is required to be furnished to an original appropriator. Gerber v. Nampa & Meridian Irrigation Dist., 16 Idaho 22, 100 P. 80 (1908).

Grounds for Injunction Against Diversion.

To enjoin diversion and change in the place of use of water, the injury, if any, must be confined to a water right. Colthorp v. Mountain Home Irrigation Dist., 66 Idaho 173, 157 P.2d 1005 (1945).

Riparian Owners.

Fact that there had been a conversion by lower riparian owner of seepage water of upper riparian owner would not of itself entitle former to injunctive relief restraining latter from cessation of waste or to beneficial use of it. Colthorp v. Mountain Home Irrigation Dist., 66 Idaho 173, 157 P.2d 1005 (1945).

Suit for Diversion.

A suit for damages for diversion of return flow of water after 40 years, such water being decreed to defendant’s land, the seepage of which had been used by plaintiff and his predecessors, without alleging an abandonment, failed to state a cause of action. Colthorp v. Mountain Home Irrigation Dist., 66 Idaho 173, 157 P.2d 1005 (1945).

Utilization of Seepage.

Construction of ditches to utilize seepage or waste water rightfully under control of another was not authorized by this section. United States v. Haga, 276 F. 41 (D. Idaho 1921).

Water in Canals.

There is a priority among consumers from canal analogous to that which exists among appropriators from a natural stream, and rights of later applicants for water are subordinate to those of prior consumers, which, when exercised in full, exhaust the carrying capacity of the canal. Gerber v. Nampa & Meridian Irrigation Dist., 19 Idaho 765, 116 P. 104 (1911).

Am. Jur. 2d.

§ 42-108. Change in point of diversion, place of use, period of use, or nature of use — Application of act.

The person entitled to the use of water or owning any land to which water has been made appurtenant either by a decree of the court or under the provisions of the constitution and statutes of this state, may change the point of diversion, period of use, or nature of use, and/or may voluntarily abandon the use of such water in whole or in part on the land which is receiving the benefit of the same and transfer the same to other lands, if the water rights of others are not injured by such change in point of diversion, place of use, period of use, or nature of use, provided; if the right to the use of such water, or the use of the diversion works or irrigation system is represented by shares of stock in a corporation or if such works or system is owned and/or managed by an irrigation district, no change in the point of diversion, place of use, period of use, or nature of use of such water shall be made or allowed without the consent of such corporation or irrigation district. Any permanent or temporary change in period or nature of use in or out-of-state for a quantity greater than fifty (50) cfs or for a storage volume greater than five thousand (5,000) acre-feet shall require the approval of the legislature, except that any temporary change within the state of Idaho for a period of less than three (3) years may be approved by the director without legislative approval.

Any person desiring to make such change of point of diversion, place of use, period of use, or nature of use of water shall make application for change with the department of water resources under the provisions of section 42-222, Idaho Code. After the effective date of this act, no person shall be authorized to change the period of use or nature of use, point of diversion or place of use of water unless he has first applied for and received approval of the department of water resources under the provisions of section 42-222, Idaho Code.

History.

R.S., § 3157; 1899, p. 380, § 11; reen. R.C. & C.L., § 3247; C.S., § 5563; I.C.A.,§ 41-108; am. 1943, ch. 53, § 1, p. 101; am. 1947, ch. 80, § 1, p. 130; am. 1969, ch. 303, § 1, p. 905; am. 1981, ch. 147, § 1, p. 253; am. 1986, ch. 313, § 1, p. 763.

Compiler’s Notes.

The phrase “the effective date of this act” refers to the effective date of S.L. 1969, chapter 303, which was effective May 26, 1969.

Effective Dates.

Section 2 of S.L. 1947, ch. 80 declared an emergency. Approved February 25, 1947.

Section 4 of S.L. 1981, ch. 147 declared an emergency. Approved March 27, 1981.

Abandonment.

Such change does not work a forfeiture or is not abandonment of such right. Joyce v. Rubin, 23 Idaho 296, 130 P. 793 (1913) (See also, Joyce v. Murphy Land & Irrigation Co., 35 Idaho 549, 208 P. 241 (1922)).

Water right was not forfeited though abandoned for over five years, where applicant for transfer resumed use of water prior to filing petition for transfer. In re Boyer, 73 Idaho 152, 248 P.2d 540 (1952).

Application of 1947 Amendment.

1947 amendment to this section requiring consent of irrigation district to transfer of water right, which did not take effect until February 25, 1947, did not apply to application for transfer filed on October 7, 1946. In re Boyer, 73 Idaho 152, 248 P.2d 540 (1952).

Approval of Department.

Change made without approval of state engineer (department of water resources) did not forfeit the water right. Joyce v. Rubin, 23 Idaho 296, 130 P. 793 (1913).

An appropriator who relies upon statutory appropriation through state engineer’s (department of water resources) permit, must apply to state engineer (department) to change place of use. Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073 (1915).

Change Causing Injury.

Change cannot be made if others are injured thereby. Walker v. McGinness, 8 Idaho 540, 69 P. 1003 (1902); Hard v. Boise City Irrigation & Land Co., 9 Idaho 589, 76 P. 331 (1904); Hill v. Standard Mining Co., 12 Idaho 223, 85 P. 907 (1906); Montpelier Milling Co. v. Montpelier, 19 Idaho 212, 113 P. 741 (1911); Bennett v. Nourse, 22 Idaho 249, 125 P. 1038 (1912); Hall v. Blackman, 22 Idaho 539, 126 P. 1045 (1912); Hall v. Blackman, 22 Idaho 556, 126 P. 1047 (1912); Basinger v. Taylor, 30 Idaho 289, 164 P. 522 (1917). Prior appropriator of waters of stream will not be permitted to change his point of diversion, if such change will injuriously affect rights of subsequent appropriators as they existed at time such subsequent appropriations were made. Crockett v. Jones, 42 Idaho 652, 249 P. 483 (1926).

No change in point of use of water will be permitted without limitation, if enlarged use in time or amount burdens the stream or decreases volume to injury of others. Beecher v. Cassia Creek Irrigation Co., 66 Idaho 1, 154 P.2d 507 (1944).

Change in Nature of Use.

The director of the department of water resources has not been granted the authority to approve an application for a requested change in the nature of the use of water. Beker Indus., Inc. v. Georgetown Irrigation Dist., 101 Idaho 187, 610 P.2d 546 (1980).

City could not change to municipal purposes a water right licensed for irrigation purposes without an administrative transfer proceeding under this section. City of Pocatello v. State (In re SRBA Case No. 39576), 152 Idaho 830, 275 P.3d 845 (2012).

Constitutionality.

This section affords the water user due process of law. In re Johnston, 69 Idaho 139, 204 P.2d 434 (1949).

This section does not constitute a delegation of legislative power to a mutual water users’ association and does not make an arbitrary discrimination between ordinary water corporations and Carey Act corporations, and the reason for Carey Act corporations not being included in§ 42-108 was that the transfer of Carey Act water rights was already covered by chapter 25, title 42 of the Idaho Code. In re Johnston, 69 Idaho 139, 204 P.2d 434 (1949).

Dedication.

The wrongful diversion and use of water by appellant without the knowledge and consent of respondent, a mutual irrigation corporation, could not be made the basis of the dedication provided for in Idaho Const., Art. XV, § 4. In re Johnston, 69 Idaho 139, 204 P.2d 434 (1949).

Extent of Right.

Right to change place of diversion includes cases in which use of water amounts to its absorption, or is such as to imply notice to subsequent appropriators that such change may reasonably be expected, but excludes appropriations to be used at a specific place for purpose of operating machinery and other works, where water is used and then returned to stream practically undiminished in quantity, when such change will damage a subsequent appropriator. Last Chance Mining Co. v. Bunker Hill & S. Mining & Concentrating Co., 49 F. 430 (C.C.D. Idaho 1892).

A water right cannot be resumed when the facts clearly establish that water was not applied to the land of which it was appurtenant. McCray v. Rosenkrance, 135 Idaho 509, 20 P.3d 693 (2001).

Federal Decree Fixing Priorities.

Jurisdiction of District Court.

The court should have followed the federal decree adjudicating interrelated water rights and fixing the priorities as of the same date as in the federal decree to avoid confusion in administering the water rights where a change in points of diversion was sought. Beecher v. Cassia Creek Irrigation Co., 66 Idaho 1, 154 P.2d 507 (1944). Jurisdiction of District Court.

District court acquired full equitable jurisdiction on appeal from reclamation commission order and had full authority to impose reasonable conditions to avoid injury. Beecher v. Cassia Creek Irrigation Co., 66 Idaho 1, 154 P.2d 507 (1944).

Proof.

Challenge by shareholders in water company to change of diversion point effected by two holders of water rights pursuant to valid water exchange was without basis absent a showing of actual harm to the shareholders. Almo Water Co. v. Darrington, 95 Idaho 16, 501 P.2d 700 (1972).

Right of Diversion.

Person claiming priority of right under judicial decrees had the statutory right to change his point of diversion provided that the rights of others were not injured, and such change did not work a forfeiture or an abandonment of such right. Graham v. Leek, 65 Idaho 279, 144 P.2d 475 (1944).

Rights of Subsequent Appropriator.

Subsequent appropriator had vested right to continuation of conditions as they existed when his appropriation was made. Crockett v. Jones, 42 Idaho 652, 249 P. 483 (1926).

Subterranean Waters.

Where a subsequent appropriator of subterranean water operated pumps at a lower level than prior appropriators, and thereby caused a shortage, the expense of lowering the prior appropriators’ pumps so they received the same amount of water as before must be borne by the subsequent appropriators. Noh v. Stoner, 53 Idaho 651, 26 P.2d 1112 (1933).

Transfer of Rights.

Users of water from ditch or canal acquire property right therein which they may transfer to other lands under such ditch or canal, or may sell and transfer to purchaser who may also transfer the same to other lands under the ditch and canal, so long as the change does not interfere with the rights of others. Hard v. Boise City Irrigation & Land Co., 9 Idaho 589, 76 P. 331 (1904).

Nonconsent of ditch company and irrigation district did not bar transfer of water appropriation right where ditch company and irrigation district was unable to prove that the water appropriation right was represented by stock. In re Boyer, 73 Idaho 152, 248 P.2d 540 (1952).

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

Am. Jur. 2d.

C.J.S.

Cross References.

Department of water resources,§ 42-1701 et seq.

State treasurer,§ 67-1201 et seq.

Amendments.

The 2011 amendment, by ch. 243, in the first sentence in the second paragraph, deleted “shall approve, in whole or in part, or upon conditions” following “available information and” and added the language beginning “may reject and refuse approval for, or may partially approve for less quantity of water” through to the end of the sentence.

Compiler’s Notes.

The bracketed insertion at the end of the section was added by the compiler to correct the name of the referenced account. See§ 42-238a.

Effective Dates.

Section 2 of S.L. 2011, ch. 243 declared an emergency. Approved April 7, 2011.

Effective Dates.

Section 4 of S.L. 2004, ch. 191 declared an emergency. Approved March 23, 2004.

Cross References.

Definition in underground water law,§ 42-230.

Domestic purposes not to include land irrigation,§ 42-914.

Effective Dates.

Section 2 of S.L. 1995, ch. 233 declared an emergency. Approved March 20, 1995.

Heating of Dwelling-houses.

Heating of dwelling-houses comes within the meaning of “domestic purposes.” Public Utils. Comm’n v. Natatorium Co., 36 Idaho 287, 211 P. 533 (1922).

Cited Village of Peck v. Denison, 92 Idaho 747, 450 P.2d 310 (1969); Stevenson v. Steele, 93 Idaho 4, 453 P.2d 819 (1969). RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

Amendments.

Compiler’s Notes.

The 2018 amendment, by ch. 146, redesignated former subsection (2) as the introductory paragraph of subsection (2) and paragraph (2)(a) and added paragraph (2)(b). Compiler’s Notes.

Section 2 of S.L. 1984, ch. 124 read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Effective Dates.

Section 3 of S.L. 1984, ch. 124 declared an emergency. Approved March 31, 1984.

Section 2 of S.L. 1998, ch. 344 declared an emergency. Approved March 25, 1998.

Stock Watering.

This section does not prohibit the Idaho department of water resources from issuing a water right permit to a landowner for stock watering purposes, even though the landowner leases his land to another person for the grazing of stock; this section merely affirms that stock watering is a beneficial use of water and that any person may file an application for that use.OAG 88-6.

Effective Dates.

Section 2 of S.L. 2019, ch. 16 declared an emergency. Approved February 13, 2019.

Cross References.

Director of department of water resources,§ 42-1801 et seq.

Amendments.

The 2006 amendment, by ch. 256, added subsection (4).

The 2008 amendment, by ch. 320, rewrote the section catchline, which formerly read: “Water rights acquired under chapter-Illegal application of water”; subdivided subsection (3) into an introductory paragraph and paragraph (a), and in the introductory paragraph, inserted “diverted from a natural watercourse and”; added paragraph (3)(b) and subsections (4) through (6), and redesignated former subsection (4) as subsection (7).

The 2012 amendment by ch. 218, added subsection (8).

The 2016 amendment, by ch. 139, added subsection (9).

The 2019 amendment, by ch. 211, substituted “or section 42-229, Idaho Code, water may be diverted” for “water may be diverted from a natural watercourse” in the introductory paragraph of subsection (3).

The 2020 amendment, by ch. 6, added paragraph (3)(c).

Compiler’s Notes.

The phrase “the effective date of this act” near the end of subsection (1) refers to the effective date of S.L. 1971, chapter 177, which was effective May 18, 1971.

Construction.

It was never intended that this statute should authorize the taking and diversion by one man of the property of another. King v. Chamberlin, 20 Idaho 504, 118 P. 1099 (1911).

Evidence of Amount Diverted.

Claimant seeking decree to confirm his right to the use of water by appropriation must present to court sufficient evidence to enable it to make definite and certain findings as to amount of water actually diverted and applied, as well as amount necessary for beneficial use claimed. Reno v. Richards, 32 Idaho 1, 178 P. 81 (1918).

Federal Law.

The federal power act does preempt some state laws relating to the building of dams on navigable streams and it particularly preempts those state laws which require a state license as a predicate for building a dam; however, state law regarding proprietary rights in water is expressly saved. Idaho Power Co. v. State, 104 Idaho 575, 661 P.2d 741 (1983).

There is nothing in the law of Idaho which precludes a person from voluntarily obtaining less than the full panoply of rights associated with the ownership of real property and a voluntary subordination agreement is not in violation of Idaho’s water law. Therefore there was no conflict between state water law and the language of the subordination clause inserted in the licenses issued by federal power commission to power company in connection with the Hells Canyon hydroelectric project. Idaho Power Co. v. State, 104 Idaho 575, 661 P.2d 741 (1983).

Where the United States bureau of reclamation (BOR) filed water right claims against irrigation entities regarding projects developed pursuant to the Reclamation Act of 1902, any rights held by BOR were subject to rights of the beneficial users that were served by the irrigation districts because, inter alia, (1) federal law deferred to state law in determining the rights to water in the reclamation projects, (2) the beneficial users had an interest that was stronger than mere contractual expectancy, and (3) title to the use of the water was held by the consumers or users of the water. United States v. Pioneer Irrigation Dist. (In re SRBA Case No. 3957), 144 Idaho 106, 157 P.3d 600 (2007).

Methods of Appropriation.

One may obtain prior right to use of water of stream where he actually diverts and applies the same to a beneficial use, although he may never have applied to state engineer for permit to do so. Neilson v. Parker, 19 Idaho 727, 115 P. 488 (1911); Youngs v. Regan, 20 Idaho 275, 118 P. 499 (1911); Furey v. Taylor, 22 Idaho 605, 127 P. 676 (1912); Crane Falls Power & Irrigation Co. v. Snake River Irrigation Co., 24 Idaho 63, 133 P. 655 (1913); Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073 (1915); Basinger v. Taylor, 30 Idaho 289, 164 P. 522 (1917); Silkey v. Tiegs, 51 Idaho 344, 5 P.2d 1049 (1931).

Water may be appropriated without compliance with the steps provided by the statute; but in such case it requires actual application to a beneficial use to complete the appropriation and the right is limited to the amount so applied, with date of priority determined by such application to beneficial use. Reno v. Richards, 32 Idaho 1, 178 P. 81 (1918).

An appropriator, whose right is based upon a valid, although unadjudicated, constitutional method of appropriation, retains a senior claim in relation to a person holding a later issued permit. R.T. Nahas Co. v. Hulet, 114 Idaho 23, 752 P.2d 625 (Ct. App. 1988).

Protection of Right.

Trial court properly determined that United States had not asserted its water rights under the constitutional method of appropriation because, under that method, the United States, as the claimant, was required to put the water to beneficial use, which it had failed to do. On the other hand, a livestock company had established its water rights because the company’s predecessors had put the water to beneficial use by watering their stock. Joyce Livestock Co. v. United States (In re SRBA Case No. 39576), 144 Idaho 1, 156 P.3d 502, cert. denied, 552 U.S. 990, 128 S. Ct. 487, 169 L. Ed. 2d 339 (2007). Protection of Right.

Where the water right of the upstream appropriator with a valid permit was junior to that of the downstream appropriator with constitutional water rights, and the former’s impoundment of water interfered with the latter’s senior entitlement, the upstream appropriator was liable for any damages caused by the wrongful interference. R.T. Nahas Co. v. Hulet, 114 Idaho 23, 752 P.2d 625 (Ct. App. 1988).

Public Use.

Use of land for development of power from streams for aid of farming was a public use for which condemnation would lie. Bassett v. Swenson, 51 Idaho 256, 5 P.2d 722 (1931).

Relation to Other Law.

Section 42-1426 provides for a waiver of the mandatory permit requirements of this section and/or§ 42-229 and a decree of a new water right for an enlarged use of the original water right. Fremont-Madison Irrigation Dist. & Mitigation Group v. Idaho Ground Water Appropriators, Inc., 129 Idaho 454, 926 P.2d 1301 (1996).

Riparian Owners Subject to Law.

Riparian owners who desire to appropriate public waters for beneficial use must comply with provisions of the law same as those who are not riparian owners. Idaho Power & Transp. Co. v. Stephenson, 16 Idaho 418, 101 P. 821 (1909).

Tenant-held License.

District court properly issued a partial decree listing the tenants as the owner of a water-right license, because the record established that the original and current tenants diverted and beneficially used water under the subject water right and the license was clear and unambiguous, recognizing a bifurcation between the ownership of the land and ownership of the water right used on that land. McInturff v. Shippy (In re CSRBA Case No. 49576), 165 Idaho 489, 447 P.3d 937 (2019).

Validity.

The 1903 act is not a local and special law. Boise City Irrigation & Land Co. v. Stewart, 10 Idaho 38, 77 P. 25 (1904).

The subject matter of the 1903 act is within its title. Boise City Irrigation & Land Co. v. Stewart, 10 Idaho 38, 77 P. 25 (1904).

Enactment of this section was proper exercise of legislative power. Big Wood Canal Co. v. Chapman, 45 Idaho 380, 263 P. 45 (1927).

Water From Mine Portal.

Wrongful Appropriation.

Water emanating from mine portal falls clearly within the definition of public ground water which is subject to appropriation; the water is from an underground source which has been brought to the surface through the excavation of the mine. Branson v. Miracle, 107 Idaho 221, 687 P.2d 1348 (1984). Wrongful Appropriation.

One who diverted water and put it to a beneficial use by aid of a trespass, did not, pursuant to such trespass, acquire a water right. Bassett v. Swenson, 51 Idaho 256, 5 P.2d 722 (1931).

Local Regulation.

Because the legislature has authorized both the counties and the state to regulate confined animal feeding operations (CAFOs), and because these authorities overlap, it is unlikely that a court would conclude the state has completely occupied the field of CAFO regulation or that state law provides an exclusive regulatory program that preempts all local regulation.OAG 08-01.

Idaho Law Review.

Idaho Law Review. — Why Does Idaho’s Water Law Regime Provide for Forfeiture of Water Rights?, Peter R. Anderson and Aaron J. Kraft. 48 Idaho L. Rev. 419 (2012).

Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

C.J.S.

§ 42-202. Application to appropriate water — Contents — Filing fees — Disposition of fees — Record of receipts.

1. For the purpose of regulating the use of the public waters and of establishing by direct means the priority right to such use, any person, association or corporation hereafter intending to acquire the right to the beneficial use of the waters of any natural streams, springs or seepage waters, lakes or ground water, or other public waters in the state of Idaho, shall, before commencing of the construction, enlargement or extension of the ditch, canal, well, or other distributing works, or performing any work in connection with said construction or proposed appropriation or the diversion of any waters into a natural channel, make an application to the department of water resources for a permit to make such appropriation. Provided however, if the use of the diversion works or irrigation system is represented by shares of stock in a corporation or if such works or system is owned or managed by an irrigation district, no such application may be approved by the director of the department of water resources without the consent of such corporation or irrigation district. Such application must set forth:
   1. The name and post-office address of the applicant.
   2. The source of the water supply.
   3. The nature of the proposed use or uses and the period of the year during which water is to be used for such use or uses.
   4. The location of the point of diversion and description of the proposed ditch, channel, well or other work and the amount of water to be diverted and used.
   5. The time required for the completion of construction of such works and application of the water to the proposed use.
2. An application proposing an appropriation of water by a municipal provider for reasonably anticipated future needs shall be accompanied by sufficient information and documentation to establish that the applicant qualifies as a municipal provider and that the reasonably anticipated future needs, the service area and the planning horizon are consistent with the definitions and requirements specified in this chapter. The service area need not be described by legal description nor by description of every intended use in detail, but the area must be described with sufficient information to identify the general location where the water under the water right is to be used and the types and quantity of uses that generally will be made.
3. Whenever it is desired to appropriate and store flood or winterflow waters, the applicant shall specify in acre feet the quantity of such flood or winterflow waters which he intends to store, but for irrigation purposes he shall not claim more than five (5) acre feet of stored water per acre of land to be irrigated, nor, in the event of the filing of an application claiming both normal flow and flood water and winterflow water, shall the total amount of water claimed exceed the equivalent of a continuous flow during the irrigation season of more than one (1) cubic foot per second for each fifty (50) acres of land to be irrigated, or more than five (5) acre feet of stored water for each acre of land to be irrigated. (4) The application shall be accompanied by a plan and map of the proposed works for the diversion and application of the water to a beneficial use, showing the character, location and dimensions of the proposed reservoirs, dams, canals, ditches, pipelines, wells and all other works proposed to be used by them in the diversion of the water, and the area and location of the lands proposed to be irrigated, or location of place of other use.

(5) If the application involves more than twenty-five (25) cubic feet per second of water or the development of more than five hundred (500) theoretical horsepower, or impoundment of water in a reservoir with an active storage capacity in excess of ten thousand (10,000) acre feet, the applicant may be required by the director of the department of water resources to furnish a statement of the financial resources of the corporation, association, firm or person making the application, and the means by which the funds necessary to construct the proposed works are to be provided, and the estimated cost of construction; and if such application is made by a corporation, the amount of its capital stock, how much thereof has been actually paid in, and the names and places of residence of its directors; and if for the generation of power or any other purpose than irrigation or domestic use, the purpose for which it is proposed to be used, the nature, location, character, capacity and estimated cost of the works, and whether the water used is to be and will be returned to the stream, and if so, at what point on the stream.

(6) In case the proposed right of use is for agricultural purposes, the application shall give the legal subdivisions of the land proposed to be irrigated, with the total acreage to be reclaimed as near as may be; provided, that no one shall be authorized to divert for irrigation purposes more than one (1) cubic foot of water per second of the normal flow for each fifty (50) acres of land to be so irrigated, or more than five (5) acre feet of stored water per annum for each acre of land to be so irrigated, unless it can be shown to the satisfaction of the department of water resources that a greater amount is necessary. Provided further, that the plan of irrigation submitted shall provide for the distribution of water to within not more than one (1) mile of each legal subdivision of the land proposed to be reclaimed by the use of such water; provided also, that in the case of all ditches designed to have a capacity of ten (10) cubic feet per second or less, such map showing the location of such ditch, and the place of use of such water, or the location of the lands to be irrigated, may be upon blanks furnished by the department of water resources.

(7) No application shall be accepted and filed by the department of water resources until the applicant shall have deposited with the department a filing fee as in this chapter provided.

(8) All moneys received by the department of water resources under the provisions of this chapter shall be deposited with the state treasurer, and such sums as may be necessary shall be available for the payment of the expenses of the department of water resources incurred in carrying out the provisions of this chapter.

(9) Such expense shall be paid by the state controller in the manner provided by law, upon vouchers duly approved by the state board of examiners, for the work performed under the direction of the department of water resources. The department of water resources shall keep a record of all filing fees received in connection with applications for permits to appropriate public waters.

(10) Provided further, that rights initiated prior to the enactment of this amendment, so far as it pertains to flood and winterflow waters, shall not be affected thereby.

(11) Provided further, that water rights held by municipal providers prior to July 1, 1996, shall not be limited thereby.

History.

1903, p. 223, § 1; am. 1905, p. 357, § 1; reen. R.C., § 3253; am. 1913, ch. 37, § 1, p. 136; reen. C.L., § 3253; C.S., § 5569; am. 1929, ch. 281, § 1, p. 675; I.C.A.,§ 41-202; am. 1935, ch. 145, § 1, p. 353; am. 1967, ch. 374, § 1, p. 1079; am. 1973, ch. 184, § 1, p. 428; am. 1994, ch. 180, § 83, p. 420; am. 1996, ch. 297, § 1, p. 967; am. 2012, ch. 120, § 1, p. 335.

Cross References.

Department of water resources,§ 42-1701 et seq.

State bard of examiners,§ 67-2001 et seq.

State controller,§ 67-1001 et seq.

State treasurer,§ 67-1201 et seq.

Amendments.

The 2012 amendment, by ch. 120, added the second sentence in the introductory paragraph of subsection (1).

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation) was changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

Effective Dates.

Section 241 of S.L. 1994, ch. 180 provided that such act should become effective on and after the first Monday in January, 1995 [January 2, 1995] if the amendment to the Constitution of Idaho changing the names of the state auditor to state controller [1994 S.J.R. No. 109, p. 1493] was adopted at the general election held on November 8, 1994. Since such amendment was adopted, the amendment to this section by § 83 of S.L. 1994, ch. 180 became effective January 2, 1995.

Section 2 of S.L. 1973, ch. 184 declared an emergency. Approved March 16, 1973.

Change of Diversion.

Where person made application under this section and permit was granted, but he subsequently desired to change point of diversion, it was necessary for him to comply substantially with§ 42-222. Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073 (1915).

The denial of irrigation district’s application of order for change of point of diversion did not constitute res judicata. Colthorp v. Mountain Home Irrigation Dist., 66 Idaho 173, 157 P.2d 1005 (1945).

Constitutionality.

This section is not unconstitutional, as amended, as conferring judicial power on commissioner of reclamation. Twin Falls Canal Co. v. Huff, 58 Idaho 587, 76 P.2d 923 (1938).

Contents of Application.

Application under this section was required to state facts which could be secured only by entrance to place where appropriation was made, and survey of premises and surroundings at point of diversion and place of improvement, and also a survey of the realty to be taken for dams and ditches to be used in appropriating water to a beneficial use. Marshall v. Niagara Springs Orchard Co., 22 Idaho 144, 125 P. 208 (1912).

Failure of an applicant to include a statement of its financial condition in its application could not be used for the first time as a basis for an action to quiet title to waters involved eleven years later. Keller v. Magic Water Co., 92 Idaho 276, 441 P.2d 725 (1968).

Contingent Right of Permittee.

By application for permit, permittee secured inchoate and contingent right which would ripen into legal and complete appropriation by compliance with statutory steps. Big Wood Canal Co. v. Chapman, 45 Idaho 380, 263 P. 45 (1927).

Enjoining Diversion.

To enjoin diversion and change in the place of use of water, the injury, if any, must be confined to a water right. Colthorp v. Mountain Home Irrigation Dist., 66 Idaho 173, 157 P.2d 1005 (1945).

Federal Law.

The federal power act does preempt some state laws relating to the building of dams on navigable streams and it particularly preempts those state laws which require a state license as a predicate for building a dam; however, state law regarding proprietary rights in water is expressly saved. Idaho Power Co. v. State, 104 Idaho 575, 661 P.2d 741 (1983).

State water licenses not containing subordination clauses did not control and override the federal subordination clause contained in the federal licenses for the Hells Canyon hydroelectric project; however, neither were the state water licenses preempted by the federal license. Idaho Power Co. v. State, 104 Idaho 575, 661 P.2d 741 (1983).

Issuance of License.

Under Idaho law, a water license does not issue until after the diversion works are completed and the water is applied to a beneficial use, albeit an application for license can be made prior to actual construction. Idaho Power Co. v. State, 104 Idaho 575, 661 P.2d 741 (1983).

Natural Springs.

Water of natural spring was subject to a valid appropriation for a beneficial use. Short v. Praisewater, 35 Idaho 691, 208 P. 844 (1922).

Necessity for Proposal.

The legislature in appropriating water under§ 67-4307 without requiring a diversion intended to dispense with the requirement that a proposal for physical diversion of water must be made before there will be an issuance of a permit to appropriate such water. State, Dep’t of Parks v. Idaho Dep’t of Water Admin., 96 Idaho 440, 530 P.2d 924 (1974).

Parties to Suits.

The United States was an indispensable party to a suit by an irrigation district where the United States had a contractual interest for use of the waters involved. American Falls Reservoir Dist. No. 2 v. Crandall, 82 F.2d 973, modified, 85 F.2d 865 (9th Cir. 1936).

Percolating Waters.

It can make no difference, for purpose of appropriation, that waters collected and formed what is known as a spring are seepage and percolating waters, rather than from well-defined subterranean stream, so long as such waters gravitate to and collect at a certain and definite point, and there constitute a volume of water known and designated as a spring. Le Quime v. Chambers, 15 Idaho 405, 98 P. 415 (1908).

Percolating or subterranean waters are subject to appropriation. Bower v. Moorman, 27 Idaho 162, 147 P. 496 (1915).

Period of Abandonment.

It was only where there was an abandonment of five years of beneficial use by the appropriator that water could be considered as unappropriated water of the state. Colthorp v. Mountain Home Irrigation Dist., 66 Idaho 173, 157 P.2d 1005 (1945).

Private Rights in Waters.

Private rights in waters authorized by law are simply rights to the use of the “public waters” and not an ownership in them, at least while they are flowing in the natural channel. Boise City Irrigation & Land Co. v. Stewart, 10 Idaho 38, 77 P. 25 (1904). So long as water continues to flow in its natural channel, it is not and cannot be made the subject of private ownership, except insofar as it is regarded as a part of the land by or through which the stream flows. Boise City Irrigation & Land Co. v. Stewart, 10 Idaho 38, 77 P. 25 (1904).

Private Waters.

Law does not purport to deal with private waters, such as private ponds, artificial lakes or wells owned by private persons and formed by collecting and impounding surface waters. King v. Chamberlin, 20 Idaho 504, 118 P. 1099 (1911).

Public Waters.

The term “public waters” refers to all waters running in the natural channel of the streams, and the state may, by proper legislation, regulate the appropriation and use thereof. Boise City Irrigation & Land Co. v. Stewart, 10 Idaho 38, 77 P. 25 (1904).

Rights Acquired.

Rights acquired under water license are confined to waters described in application. Rabido v. Furey, 33 Idaho 56, 190 P. 73 (1920).

Riparian Owners.

Riparian owners who desire to appropriate public waters for a beneficial use must comply with the provisions of law the same as those who are not riparian owners. Idaho Power & Transp. Co. v. Stephenson, 16 Idaho 418, 101 P. 821 (1909).

Fact that there had been a conversion by lower riparian owner of seepage water of upper riparian owner would not of itself entitle former to injunctive relief restraining latter from cessation of waste or to beneficial use of it. Colthorp v. Mountain Home Irrigation Dist., 66 Idaho 173, 157 P.2d 1005 (1945).

Seepage Water.

Surface waste and seepage water may be appropriated, subject to right of owner to cease wasting it, or in good faith to change place or manner of wasting it, or to recapture it, so long as he applies it to a beneficial use. Sebern v. Moore, 44 Idaho 410, 258 P. 176 (1927).

A suit for damages for diversion of return flow of water after 40 years, such water being decreed to defendant’s land, the seepage of which had been used by plaintiff and his predecessors, without alleging an abandonment, failed to state a cause of action. Colthorp v. Mountain Home Irrigation Dist., 66 Idaho 173, 157 P.2d 1005 (1945).

The appropriation of seepage and waste water was subject to the right of the owner to cessation of waste, or in good faith changing place of wasting, or to recapture so long as it was applied to a beneficial use. Colthorp v. Mountain Home Irrigation Dist., 66 Idaho 173, 157 P.2d 1005 (1945).

Subterranean Waters.

Unconstitutionality of Part of Amendment.

Subterranean waters may be appropriated by diversion and beneficial use without compliance with this section. Silkey v. Tiegs, 51 Idaho 344, 5 P.2d 1049 (1931). Unconstitutionality of Part of Amendment.

Even if some provisions of an amendment of this section were unconstitutional, the district court should not have dismissed the action, but should have proceeded under the prior valid statute and such portion of the amendment as could be held valid; and such a proceeding would not be an action for a declaratory judgment, and the court would not pass upon the question of unconstitutionality until presented in a cause demanding rulings thereon. Twin Falls Canal Co. v. Huff, 58 Idaho 587, 76 P.2d 923 (1938).

Vesting of Rights.

A water right does not vest until the statutory procedures for obtaining a license are completed, including the issuance of the license. Idaho Power Co. v. Idaho Dep’t of Water Res. (In re Licensed Water Right No. 03-7018), 151 Idaho 266, 255 P.3d 1152 (2011).

Waters from Hot Wells.

Waters of hot wells held not public waters and not subject to appropriation except by owners of fee. Public Utils. Comm’n v. Natatorium Co., 36 Idaho 287, 211 P. 533 (1922).

When Right Vests.

When right to use of unappropriated waters had been initiated by application for permit and proper steps taken to perfect such right, such right vested and dated back to issuance of permit. Big Wood Canal Co. v. Chapman, 45 Idaho 380, 263 P. 45 (1927).

C.J.S.

§ 42-202A. Temporary approval — Application — Criteria — Exceptions.

1. Any person, association or corporation hereafter intending to use the waters of any natural streams, springs or seepage waters, lakes or ground water, or other public waters in the state of Idaho, for a minor use of short duration may make application to the department of water resources for temporary approval.
2. Application for temporary approval shall be upon forms provided by the department of water resources and shall be accompanied by a fifty dollar ($50.00) fee.
3. The director of the department of water resources is not required to publish notice of the application pursuant to the provisions of section 42-203A, Idaho Code, and is not required to make findings as provided in section 42-203A or 42-203C, Idaho Code. The director may, however, give notice of an application as he determines appropriate and may grant a temporary approval upon completion of the application form, payment of the filing fee, a determination by the director that the temporary approval can be properly administered, a determination that other sources of water are not available, a determination that approval is in the public interest and a determination that the temporary approval will not injure public values associated with the water source or any other water right. If the temporary approval is within a water district, the director shall seek and consider the recommendations of the watermaster before granting a temporary approval. The director may issue a temporary approval with the conditions determined by the director to be necessary to protect other water rights and the public interest.
4. The recipient of any temporary approval issued pursuant to the provisions of this act shall assume all risk that the diversion and use of the water may injure other water rights, or otherwise not comply with the criteria described in section 42-203A(5), Idaho Code. Any applicant for a temporary approval who is aggrieved by a denial of the director of a temporary approval pursuant to this act may file an application to appropriate water as provided in section 42-202, Idaho Code.
5. A temporary approval shall only be granted for a use not intended to become an established water right:
   1. For prevention of flood damage;
   2. For ground water recharge;
   3. For ground or surface water remediation; or
   4. For any other use which will not exceed a total diverted volume of five (5) acre feet for the duration of the approval.

Approval of the uses set forth herein shall not exceed one (1) year. “Remediation” is defined to be the removal of hazardous substances or petroleum, as those terms are defined in section 39-7203, Idaho Code, from water in response to state or federal health and safety requirements. Approvals issued under the provisions of this section constitute a waiver of the mandatory permit requirements of section 42-201(2), Idaho Code, and do not create a continuing right to use water. Temporary approvals shall not be issued as an interim water supply for a use which requires a continuing water supply.

History.

(6) The provisions of this section do not require a temporary approval: (a) before diverting and using water to extinguish or prevent the spread of an existing wildfire on private or public lands, facilities or equipment, including the use of water by personnel engaged in fighting an existing wildfire, or (b) for reservoir flood control authorized by state or federal laws. History.

I.C.,§ 42-202A, as added by 1993, ch. 255, § 1, p. 880; am. 2017, ch. 210, § 1, p. 513.

Amendments.

The 2017 amendment, by ch. 210, rewrote the first sentence in subsection (5), which formerly read: “A temporary approval shall only be granted for a use not intended to become an established water right and for a use which will not exceed a total diverted volume of five (5) acre feet for the duration of the approval, which shall not exceed one (1) year”; and, in subsection (6), inserted “(a)” preceding “before diverting” near the beginning and added “or (b) for reservoir flood control authorized by state or federal laws” at the end.

Compiler’s Notes.

The term “this act” in subsection (4) refers to S.L. 1993, Chapter 255, which is codified only as this section.

Effective Dates.

Section 2 of S.L. 1993, ch. 255 declared an emergency. Approved March 29, 1993.

Section 2 of S.L. 2017, ch. 210 declared an emergency. Approved March 30, 2017.

Compiler’s Notes.

For more on the national standard for spatial data accuracy, see http://www.fgdc.gov/dataandservices .

Effective Dates.

Section 39 of S.L. 2000, ch. 132 provided: “This act shall be in full force and effect on and after July 1, 2000, except that the Division of Environmental Quality shall have one (1) year thereafter to accomplish necessary changes to complete the physical transition to the new department.”

Compiler’s Notes.

Former§ 42-203 was amended and redesignated as§ 42-203A by § 1 of S.L. 1985, ch. 17.

Amendments.

The 2011 amendment, by ch. 170, rewrote subsection (3), which formerly read: “The director of the department shall cause a copy of the notice of application to be sent by ordinary mail to any person who requests in writing to receive any class of notices of application and who pays an annual mailing fee as established by departmental regulation.”

Compiler’s Notes.

Effective Dates.

Section 2 of S.L. 1978, ch. 306 declared an emergency. Approved March 29, 1978.

Appeals.

Court was bound to take, on an appeal from an order of the commissioner of reclamation, the date on letter to the protestant reciting that the order was “made and entered this day” rather than the date actually appearing on the ruling and order. Idaho Power Co. v. Buhl, 62 Idaho 351, 111 P.2d 1088 (1941).

Constitutionality.

One to whom water permit was granted by the commissioner of reclamation could not urge unconstitutionality of amendment to statutes governing contests of permits in the absence of a showing of injury by reason thereof. Twin Falls Canal Co. v. Huff, 58 Idaho 587, 76 P.2d 923 (1938).

Even if some provisions of the 1935 amendment to this section were unconstitutional, the district court should not have dismissed the action, but should have proceeded under the prior valid statute and such portion of the amendment as could be held valid, and such a proceeding would not be an action for a declaratory judgment, and the court could not pass upon the question of unconstitutionality until presented in a cause demanding rulings thereon. Twin Falls Canal Co. v. Huff, 58 Idaho 587, 76 P.2d 923 (1938).

Design Plan.

Good Faith.

The design plan for a proposed facility depends on the nature of the facility, the complexity of the proposal, and the extent of the proposed appropriation’s impact on the local area; the plans should be sufficient to generally apprise the public of the efficacy of the proposed use in the planned facility, and of its potential impact. Shokal v. Dunn, 109 Idaho 330, 707 P.2d 441 (1985). Good Faith.

An application to appropriate water does not need to be accompanied by new construction or a new project to show that the application is being made in good faith; existing physical structures may be used. North Snake Ground Water Dist. v. Idaho Dep’t of Water Res. (In re Permit No. 36-16979), 160 Idaho 518, 376 P.3d 722 (2016).

Local Public Interest.

An interpretation of “local public interest” is not entitled to deference, where it is inconsistent with the plain language of the statutory definition provided in§ 42-202B. North Snake Ground Water Dist. v. Idaho Dep’t of Water Res. (In re Permit No. 36-16979), 160 Idaho 518, 376 P.3d 722 (2016).

Mitigation.

Mitigation has been recognized as a beneficial use in both agency and judicial proceedings. North Snake Ground Water Dist. v. Idaho Dep’t of Water Res. (In re Permit No. 36-16979), 160 Idaho 518, 376 P.3d 722 (2016).

Public Interest.

The legislature in this section must have intended the public interest on the local scale to include the public interest elements listed in§ 42-1501, as well as assuring minimum stream flows, discouraging waste and encouraging conservation. The relevant elements of public interest and their relative weights will vary with local needs, circumstances and interests. Shokal v. Dunn, 109 Idaho 330, 707 P.2d 441 (1985).

While the burden of production as to which elements of public interest are impacted and to what degree lies with the party that has knowledge peculiar to himself, the burden of proof in all cases as to where the public interest lies rests with the applicant for a permit to appropriate water. Shokal v. Dunn, 109 Idaho 330, 707 P.2d 441 (1985).

The determination of what elements of the public interest are impacted, and what the public interest requires, is committed to the department of water resources’ sound discretion. Shokal v. Dunn, 109 Idaho 330, 707 P.2d 441 (1985).

Attaching nine conditions to the approved water permit was within the authority granted the department of water resources by the legislature. When the legislature enacted subsection (5) of this section, it clearly vested in the director of the department considerable authority and discretion to determine and protect the “local public interest” when issuing or rejecting water permits. Collins Bros. Corp. v. Dunn, 114 Idaho 600, 759 P.2d 891 (1988).

The director correctly found that the transfer of water right to land not previously covered by the right did not conflict with the local public interest, even though a local road had been flooded on several occasions by the water appropriated under the water right. Dovel v. Dobson, 122 Idaho 59, 831 P.2d 527 (1992).

Under this section, any application to appropriate water in Idaho is subject to the local public interest standard. Likewise, any change to a water right under§ 42-222 is also subject to a determination that the change is in the local public interest as stated in this section; as is an amendment to a water permit under§ 42-211. Hardy v. Higginson, 123 Idaho 485, 849 P.2d 946 (1993).

Publication of Notice.

In the absence of a showing to the contrary, it will be presumed that publication of notice was made as required by this section and that, in passing on the application, the reclamation engineer (director of the department of water resources) complied with statutory provisions concerning filing of protests to the granting of the application. Keller v. Magic Water Co., 92 Idaho 276, 441 P.2d 725 (1968).

Rejection of Application Involving Speculation.

Where plaintiffs filed an application for a water permit but had no possessory right in the land designated as the place of use, it amounted to speculation, and a person may not file an application for water right and then seek a place for its use. Lemmon v. Hardy, 95 Idaho 778, 519 P.2d 1168 (1974).

Retroactive Application of Public Interest Standard.

It was not improper to apply the new local public interest standard imposed by the 1978 amendment to an application for a water appropriation permit filed prior to the amendment, since a permit applicant applying to appropriate water has no prior individually vested right to the water at the time of the application in that it does not already own the water and since impermissible retroactive legislation is only that legislation which affects vested or preexisting rights. Hidden Spring Trout Ranch, Inc. v. Allred, 102 Idaho 623, 636 P.2d 745 (1981).

The filing of an application for a water appropriation permit establishes the priority date of the appropriation under the relation back doctrine, but any such priority date right is nonetheless contingent upon future statutory adherence and issuance of a license pursuant to§ 42-219 and is therefore not a vested right which would preclude application of§ 42-203 (now this section), as amended in 1978, to a permit application filed prior to that amendment. Hidden Springs Trout Ranch, Inc. v. Allred, 102 Idaho 623, 636 P.2d 745 (1981).

Standing to Contest Change.

Where the Box Canyon area was designated by the bureau of land management as an Area of Critical Environmental Concern (ACEC), and where the values justifying the ACEC designation included the identification of four candidate threatened and endangered aquatic species and the scenic and unique natural qualities of the area, the protection of this habitat fell within the local public interest as defined in Shokal v. Dunn , 109 Idaho 330, 770 P.2d 441 (1985); therefore, the protestants, although having no water rights within Box Canyon, sought to protect these locally important factors and thus their interests were properly considered by the director of the Idaho department of water resources. Hardy v. Higginson, 123 Idaho 485, 849 P.2d 946 (1993).

Sufficient Financial Resources.

A showing by the applicant that it is “reasonably probable” that financing can be secured to complete the project within five years serves the purpose of screening out undeserving projects without being destructive of growth and development in the state. Shokal v. Dunn, 109 Idaho 330, 707 P.2d 441 (1985).

Unsatisfactory Permit Conditions.

Vesting of Rights.

If a permittee finds the conditions imposed on an amendment to a water permit to be unsatisfactory, the permittee shall be allowed to withdraw the application and be left with what the permittee had before submitting the application to the Idaho department of water resources. Hardy v. Higginson, 123 Idaho 485, 849 P.2d 946 (1993). Vesting of Rights.

A water right does not vest until the statutory procedures for obtaining a license are completed, including the issuance of the license. Idaho Power Co. v. Idaho Dep’t of Water Res. (In re Licensed Water Right No. 03-7018), 151 Idaho 266, 255 P.3d 1152 (2011).

When Appeal Taken.

For jurisdictional purposes an appeal from the department of water resources to the district court under this section has been taken when the appellant files his petition setting forth the appellant’s reason for appeal in the appropriate district court, and failure to take the additional steps outlined in this section is only grounds for the court to exercise its discretion in imposing sanctions, including dismissal, if any delay caused thereby can fairly be said to have prejudiced the other party or parties to the appeal. Neal v. Harris, 100 Idaho 348, 597 P.2d 234 (1979).

C.J.S.

§ 42-203B. Authority to subordinate rights — Nature of subordinated water right and authority to establish a subordination condition — Authority to limit term of permit or license.

1. The legislature finds and declares that it is in the public interest to specifically implement the state’s power to regulate and limit the use of water for power purposes and to define the relationship between the state and the holder of a water right for power purposes to the extent such right exceeds an established minimum flow. The purposes of the trust established by subsections (2) and (3) of this section are to assure an adequate supply of water for all future beneficial uses and to clarify and protect the right of a user of water for power purposes subordinated by a permit issued after July 1, 1985, or by an agreement, to continue using the water pending approval of depletionary future beneficial uses.
2. A water right for power purposes which is defined by agreement with the state as unsubordinated to the extent of a minimum flow established by state action shall remain unsubordinated as defined by the agreement. Any portion of the water rights for power purposes in excess of the level so established shall be held in trust by the state of Idaho, by and through the governor, for the use and benefit of the user of the water for power purposes, and of the people of the state of Idaho; provided, however, that application of the provisions of this section to water rights for hydropower purposes on the Snake river or its tributaries downstream from Milner dam shall not place in trust any water from the Snake river or surface or ground water tributary to the Snake river upstream from Milner dam. For the purposes of the determination and administration of rights to the use of the waters of the Snake river or its tributaries downstream from Milner dam, no portion of the waters of the Snake river or surface or ground water tributary to the Snake river upstream from Milner dam shall be considered. The rights held in trust shall be subject to subordination to and depletion by future upstream beneficial users whose rights are acquired pursuant to state law, including compliance with the requirements of section 42-203C, Idaho Code.
3. Water rights for power purposes not defined by agreement with the state shall not be subject to depletion below any applicable minimum stream flow established by state action. Water rights for power purposes in excess of such minimum stream flow shall be held in trust by the state of Idaho, by and through the governor, for the use and benefit of the users of water for power purposes and of the people of the state of Idaho. The rights held in trust shall be subject to subordination to and depletion by future consumptive upstream beneficial users whose rights are acquired pursuant to state law, excluding compliance with the requirements of section 42-203C, Idaho Code.
4. The user of water for power purposes as beneficiary of the trust established in subsections (2) and (3) of this section shall be entitled to use water available at its facilities to the extent of the water right, and to protect its rights to the use of the water as provided by state law against depletions or claims not in accordance with state law.
5. The governor or his designee is hereby authorized and empowered to enter into agreements with holders of water rights for power purposes to define that portion of their water rights at or below the level of the applicable minimum stream flow as being unsubordinated to upstream beneficial uses and depletions, and to define such rights in excess thereof as being held in trust by the state under subsection (2) of this section. Such agreements shall be subject to ratification by law. The contract entered into by the governor and the Idaho power company on October 25, 1984, is hereby found and declared to be such an agreement, and the legislature hereby ratifies the governor’s authority and power to enter into this agreement. (6) The director shall have the authority to subordinate the rights granted in a permit or license for power purposes to subsequent upstream beneficial depletionary uses. A subordinated water right for power use does not give rise to any claim against, or right to interfere with, the holder of subsequent upstream rights established pursuant to state law. The director shall also have the authority to limit a permit or license for power purposes to a term, which may be in the form of a fixed date or by reference to a federal energy regulatory commission (FERC) license or other authorization issued or contract executed, in connection with the power project.
   1. The term of any power purchase contract which is, or reasonably may become, applicable to, such permit or license;
   2. The policy of the Idaho public utilities commission (IPUC) regarding the term of power purchase contracts as administered by the IPUC under and pursuant to the authority of the public utility regulatory policy act of 1978 (PURPA);
   3. The term of any FERC license granted, or which reasonably may be granted, with respect to any particular permit or license for power purpose;
   4. Existing downstream water uses established pursuant to state law.

Subsection (6) of this section shall not apply to licenses which have already been issued as of July 1, 1985.

(7) The director, in the exercise of the authority to limit a permit or license for power purposes to a term, shall, for purposes of determining such term, consider any of the following factors, among others:

The term shall be determined at the time of issuance of the permit, or as soon thereafter as practicable if adequate information is not then available. The term shall commence upon application of water to beneficial use. The term, once established, shall not thereafter be modified except in accordance with due process of law prior to expiring.

(8) If a term is established by the director by reference to the hydropower project’s FERC license, the term shall automatically extend to run concurrently with any annual renewals of the project’s FERC license. Prior to the issuance of a subsequent or new FERC license for the project, the director may review the water right license and may issue an order canceling all or any part of the use, establishing a new term, or revising, adding or deleting conditions under which the water right may be exercised. The order shall take effect on the date the current term, as may be extended through annual renewals, expires. If the director does not issue such an order, the term shall automatically extend to a length equal to the project’s subsequent or new FERC license and any original conditions on the water right license shall remain in effect.

History.

(9) If a term is established by the director but the term is not established by reference to a hydropower project’s FERC license, the director may review the water right license prior to the expiration of the term and may issue an order canceling all or any part of the use, establishing a new term of years, or revising, adding or deleting conditions under which the water right may be exercised. The order shall take effect on the date the current term expires. If the director does not issue such an order, the term shall automatically extend to a length equal to the original term and any original conditions on the water right license shall remain in effect. History.

I.C.,§ 42-203B, as added by 1985, ch. 17, § 2, p. 23 and ch. 224, § 1, p. 537; am. 1986, ch. 117, § 1, p. 308; am. 2013, ch. 45, § 1, p. 94.

Cross References.

Idaho public utilities commission,§ 61-201 et seq.

Amendments.

The 2013 amendment, by ch. 45, in subsection (6), substituted “term, which may be in the form of a fixed date or by reference to a federal energy regulatory commission (FERC) license or other authorization issued or contract executed, in connection with the power project” for “specific term” at the end of the first paragraph and substituted “July 1, 1985” for “the effective date of this act” at the end of the second paragraph; in subsection (7), rewrote the introductory paragraph, which formerly read: “The director in the exercise of the authority to limit a permit or license for power purposes to a specific term of years shall designate the number of years through which the term of the license shall extend and for purposes of determining such date shall consider among other factors”, substituted “FERC license” for “federal energy regulatory commission (FERC) license” near the beginning of paragraph (c), in the undesignated paragraph following paragraph (d), deleted “of years” following “The term” near the beginning of the first three sentences and added “prior to expiring” at the end; and added subsections (8) and (9).

Federal References.

The public utility regulatory policy act of 1978, referred to in paragraph (7)(b), is compiled as 16 U.S.C.S. § 2601 et seq.

Compiler’s Notes.

Concerning the contract of October 25, 1984, referred to in subsection (5), see S.L. 1985, ch. 14.

As to the federal energy regulatory commission, see http://www.ferc.gov .

The abbreviations enclosed in parentheses so appeared in the law as enacted.

Purpose of Agreement Concerning Subordination.

Term Condition.

The purpose of Idaho Power Company’s agreement to have its claim to Snake River water rights for its Swan Falls hydroelectric facility of 8,400 c.f.s. (measured at the Murphy gauging station) subordinated down to a reduced average daily flow, was to make available more water for future appropriators and to assist in the expansion of other beneficial uses of the water in the Snake River. Miles v. Idaho Power Co., 116 Idaho 635, 778 P.2d 757 (1989). Term Condition.

The plain language of this section gives the department of water resources the authority to include a term condition in a license to divert water for power generation, even if such a term was not included in the original permit. Idaho Power Co. v. Idaho Dep’t of Water Res. (In re Licensed Water Right No. 03-7018), 151 Idaho 266, 255 P.3d 1152 (2011).

Vesting of Rights.

A water right does not vest until the statutory procedures for obtaining a license are completed, including the issuance of the license. Idaho Power Co. v. Idaho Dep’t of Water Res. (In re Licensed Water Right No. 03-7018), 151 Idaho 266, 255 P.3d 1152 (2011).

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

Understanding the 1984 Swan Falls Settlement, Clive J. Strong & Michael C. Orr. 52 Idaho L. Rev. 223 (2016).

Idaho Law Review.

Idaho Law Review. — Understanding the 1984 Swan Falls Settlement, Clive J. Strong & Michael C. Orr. 52 Idaho L. Rev. 223 (2016).

Compiler’s Notes.

Section 5 of S.L. 1985, ch. 17 read: “This act shall not be construed as modifying, amending, or repealing any interstate compact.”

Section 6 of S.L. 1985, ch. 17 read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Effective Dates.

Section 4 of S.L. 1986, ch. 117 declared an emergency. Approved March 24, 1986.

Cross References.

Cancellation of permits,§§ 42-208, 42-301 et seq.

Department of water resources,§ 42-1701 et seq.

Amendments.

The 2013 amendment, by ch. 82, in subsection (1), inserted “by state, county, city or other local government permitting or administrative action or process related to the applicant’s land or water development” near the middle and “or in any subsequent grant of extension pursuant to subsection (2), (3), (4) or (6) of this section” near the end; in subsection (2), substituted “for up to twelve (12) years beyond the initial development deadline contained in the permit” for “for an additional period of seven (7) years, but not to exceed twelve (12) years in all from the date of permit” and inserted “or beyond a grant of extension pursuant to the provisions of subsection (1) of this section”; added subsection (4) and redesignated the subsequent subsections accordingly; and inserted “or beyond a grant of extension pursuant to the provisions of subsection (1) of this section.”

The 2020 amendment, by ch. 164, rewrote the section to the extent that a detailed comparison is impracticable.

Effective Dates.

Section 2 of S.L. 1963, ch. 214 declared an emergency. Approved March 25, 1963.

Section 2 of S.L. 1982, ch. 62 declared an emergency. Approved March 15, 1982.

Section 2 of S.L. 2013, ch. 82 provided: “An emergency existing therefor, which emergency is hereby declared to exist, this act shall be in full force and effect on and after its passage and approval regarding all permits pending before the Idaho department of water resources. Permits pending before the department are entitled to the maximum qualifying extension available pursuant to the provisions of section 42-204, Idaho Code, regardless of whether the permittee received a prior extension under section 42-204(6), Idaho Code.” Approved March 15, 2013.

CASE NOTES

Action at Law.

Holders of subsequent permits, upon a proper showing, are entitled to judgment in action at law canceling prior permits issued without statutory compliance, when state engineer (department of reclamation) refuses to cancel such permits. Clark v. Hansen, 35 Idaho 449, 206 P. 808 (1922).

Applicable to United States.

Restrictive five-year requirement for completion of irrigation appropriations was binding on United States, public waters not being governed, in this respect, by same principle applicable to public lands. Pioneer Irrigation Dist. v. American Ditch Ass’n, 50 Idaho 732, 1 P.2d 196 (1931).

Constitutionality.

One to whom water permit was granted by the commissioner of reclamation could not urge unconstitutionality of amendment to statutes governing contests of permits in the absence of a showing of injury by reason thereof. Twin Falls Canal Co. v. Huff, 58 Idaho 587, 76 P.2d 923 (1938).

Even if some provisions of an amendment of this section were unconstitutional, the district court should not have dismissed the action, but should have proceeded under the prior valid statute and such portion of the amendment as could be held valid. Such a proceeding would not be an action for a declaratory judgment, and the court could not pass upon the question of unconstitutionality until presented in a cause demanding rulings thereon. Twin Falls Canal Co. v. Huff, 58 Idaho 587, 76 P.2d 923 (1938).

The provisions of this section granting to persons or corporations owning irrigation systems covering more than 25,000 acres additional time in which to apply diverted water to beneficial use are not unconstitutional class legislation. Keller v. Magic Water Co., 92 Idaho 276, 441 P.2d 725 (1968).

Conveyance of Water Right.

Effect of Permit.

Water right is real estate and must be conveyed as real estate, and where one had a valid water permit issued to him by state engineer (department of water resources) he could not convey water right secured thereby by simply handing permit to would-be purchaser. Gard v. Thompson, 21 Idaho 485, 123 P. 497 (1912). Effect of Permit.

Permit is not an appropriation of the public waters of state, but is the consent of state given in manner provided by law to construct and acquire real property, and it gives applicant an inchoate right, which will ripen into a legal and complete appropriation only upon completion of works and application of water to a beneficial use. Speer v. Stephenson, 16 Idaho 707, 102 P. 365 (1909); Marshall v. Niagara Springs Orchard Co., 22 Idaho 144, 125 P. 208 (1912); Basinger v. Taylor, 30 Idaho 289, 164 P. 522 (1917).

Mere fact that state engineer (department of water resources) grants permit in no way confers any right to enter upon private land for the purpose of making appropriation. Marshall v. Niagara Springs Orchard Co., 22 Idaho 144, 125 P. 208 (1912).

Granting of permit secures no rights to holder, but compliance with conditions of permit initiates right to use water, which right becomes vested and dates back to the issuance of permit. Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073 (1915).

Necessity of Compliance.

Total failure to commence work within time provided in permit, or to complete one fifth of work in limited time, cannot be cured by extending time for making proof of beneficial use of water so attempted to be appropriated. Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073 (1915).

Trespass.

In order to initiate right to appropriate water under this section at a point upon land belonging to state, if it is necessary for applicant to enter upon land owned by state for purpose of making necessary examination, surveys, maps and plans required in order to make a proper application to state engineer (department of water resources) for a permit, by so entering, such party would be a trespasser upon said land, under R. C., § 1578. Tobey v. Bridgewood, 22 Idaho 566, 127 P. 178 (1912), overruled on other grounds, Idaho-Iowa Lateral & Reservoir Co. v. Fisher, 27 Idaho 695, 151 P. 998 (1915).

Where necessary data can be furnished from observation or survey made beyond the premises where the diversion is to take place, there is no trespass, since trespass must be physical, not merely mental. Idaho Power Co. v. Buhl, 62 Idaho 351, 111 P.2d 1088 (1941).

Unsatisfactory Permit Conditions.

If a permittee finds the conditions imposed on an amendment to a water permit to be unsatisfactory, the permittee shall be allowed to withdraw the application and be left with what the permittee had before submitting the application to the Idaho Department of Water Resources (IDWR). Hardy v. Higginson, 123 Idaho 485, 849 P.2d 946 (1993).

Vested Rights.

State engineer (department of water resources), by granting subsequent water permit, cannot interfere in any manner with vested rights of prior appropriators. Lockwood v. Freeman, 15 Idaho 395, 98 P. 295 (1908); Nielson v. Parker, 19 Idaho 727, 115 P. 488 (1911); Gard v. Thompson, 21 Idaho 485, 123 P. 497 (1912).

Vesting of Rights.

A water right does not vest until the statutory procedures for obtaining a license are completed, including the issuance of the license. Idaho Power Co. v. Idaho Dep’t of Water Res. (In re Licensed Water Right No. 03-7018), 151 Idaho 266, 255 P.3d 1152 (2011).

Compiler’s Notes.

The phrase “the effective date of this act” in subsection (3) refers to the effective date of S.L. 1981, chapter 206, which was effective April 1, 1981.

The words “this act” at the end of subsection (1) refer to S.L. 1937, chapter 142, as amended by S.L. 1947, chapter 66, which is compiled herein as§§ 42-205 to 42-210.

Effective Dates.

Section 2 of S.L. 1981, ch. 206 declared an emergency. Approved April 1, 1981.

Compiler’s Notes.

The bracketed insertion near the middle of the section was added by the compiler to conform to the statutory citation style.

The words “this act” at the end of the section refer to S.L. 1937, chapter 142, as amended by S.L. 1947, chapter 66, which is compiled herein as§§ 42-205 to 42-210.

The name of the director of the department of water administration (formerly the state reclamation engineer) has been changed to the director of the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 31 (§ 42-1804).

Cross References.

Petition for cancellation,§ 42-302.

Compiler’s Notes.

The words “this act” in two places in the section refer to S.L. 1937, chapter 142, as amended by S.L. 1947, chapter 66, which is compiled herein as§§ 42-205 to 42-210.

The name of the director of the department of water administration (formerly the state reclamation engineer) has been changed to the director of the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

Compiler’s Notes.

The words “this act” near the middle of the section refer to S.L. 1937, chapter 142, which is compiled as§§ 42-205 to 42-210.

Compiler’s Notes.

The words “this act” near the middle of the section refer to S.L. 1937, chapter 142, which is compiled as§§ 42-205 to 42-210.

Compiler’s Notes.

The term “this act” at the beginning and end of the first paragraph and near the end of the second paragraph refer to S.L. 1967, chapter 374, which is codified as§§ 42-202, 42-203A, 42-204, 42-211, 42-217, 42-218, 42-218a, 42-219, and 42-221. The reference probably should be to “this chapter,” being chapter 2, title 42, Idaho Code.

The bracketed references “42-203A” in the third paragraph of this section were inserted by the compiler since§ 42-203 was amended and redesignated as §42-203A by S.L. 1985, ch. 17, § 1.

Changing Point of Diversion.

It was error for the district court to enjoin landowners from changing the point of diversion of water from a well located on one section of land owned by them to another section of their land, where such owners had filed a proper application for such change with the state reclamation engineer (now the director of the department of water resources), who declined to hear or process the application. State ex rel. Tappan v. Smith, 92 Idaho 451, 444 P.2d 412 (1968).

List of Lands.

Amendment of list of lands to be reclaimed is properly allowed where rights of others are not adversely affected and no additional water is claimed. Big Wood Canal Co. v. Chapman, 45 Idaho 380, 263 P. 45 (1927).

Public Interest.

Standing to Contest Change.

Under§ 42-203A, any application to appropriate water in Idaho is subject to the local public interest standard. Likewise, any change to a water right under§ 42-222 is also subject to a determination that the change is in the local public interest as stated in§ 42-203A; as is an amendment to a water permit under this section. Hardy v. Higginson, 123 Idaho 485, 849 P.2d 946 (1993). Standing to Contest Change.

Where the Box Canyon area was designated by the bureau of land management as an Area of Critical Environmental Concern (ACEC), and where the values justifying the ACEC designation included the identification of four candidate threatened and endangered aquatic species and the scenic and unique natural qualities of the area, the protection of this habitat fell within the local public interest as defined in Shokal v. Dunn , 109 Idaho 330, 770 P.2d 441 (1985); therefore, the protestants, although having no water rights within Box Canyon, sought to protect these locally important factors and thus their interests were properly considered by the director of the Idaho department of water resources. Hardy v. Higginson, 123 Idaho 485, 849 P.2d 946 (1993).

Unsatisfactory Permit Conditions.

If a permittee finds the conditions imposed on an amendment to a water permit to be unsatisfactory, the permittee shall be allowed to withdraw the application and be left with what the permittee had before submitting the application to the Idaho department of water resources. Hardy v. Higginson, 123 Idaho 485, 849 P.2d 946 (1993).

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation) has been changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

Percolating Waters.

This section is statutory recognition of private ownership in certain waters, and that right to percolating waters cannot be taken from owner of fee without compensation. Public Utils. Comm’n v. Natatorium Co., 36 Idaho 287, 211 P. 533 (1922).

Private Waters.

Where waters of creek consisted primarily of spring runoff which arose in the mountains on U.S. government property, and where but for farmer’s actions of capturing those waters and putting them to use on his farmland the stream would have flowed into a river, the creek was not a private stream within the definition of this section. Olson v. Bedke, 97 Idaho 825, 555 P.2d 156 (1976).

Spring Waters.

Notwithstanding this section, it is well settled that waters of natural springs which form a natural stream or streams flowing off of the premises on which they arise are public waters, subject to acquirement by appropriation, diversion and application to beneficial use. Jones v. McIntire, 60 Idaho 338, 91 P.2d 373 (1939); Maher v. Gentry, 67 Idaho 559, 186 P.2d 870 (1947); Nordick v. Sorensen, 81 Idaho 117, 338 P.2d 766 (1959). The waters of spring on land where they arose and sank were private waters and owner of adjoining land had no right to the use of same in absence of a showing of strict compliance with this section. Maher v. Gentry, 67 Idaho 559, 186 P.2d 870 (1947).

Where an owner of land diverted water from a spring on the land and applied it to a beneficial use, the appropriation was valid when made, and the water right thus perfected was appurtenant to the land which received the benefit of the water and thus passed on to the person who acquired title to the benefited land. Parke v. Bell, 97 Idaho 67, 539 P.2d 995 (1975).

Water from Mine Portal.

An open flow of water emanating from a mine portal which would not exist absent development of the mine was not nonappropriable private water as defined by this section. Branson v. Miracle, 107 Idaho 221, 687 P.2d 1348 (1984).

Issue which had previously been litigated concerning whether or not water which flowed from mine tunnel on parties’ property was private or public water was not subject to further review in subsequent action and owners of land were collaterally estopped from raising it. Branson v. Higginson, 128 Idaho 274, 912 P.2d 642 (1996).

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

ALR.

§ 42-213. Diversion of private waters — Applicants must show right of way.

All applications to the department of water resources for permits to divert or appropriate the waters of any lake, pond, pool or spring shall state whether such lake, pond, pool or spring is wholly or entirely upon the land of any person or corporation other than the applicant, and, in the event that it is, such application shall state that the applicant has the written permission from such owner, executed and acknowledged as required by the provisions of the preceding section to divert or appropriate such water.

History.

1911, ch. 230, § 2, p. 783; reen. C.L., § 3255b; C.S., § 5573; I.C.A.,§ 41-207.

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation) has been changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

Compiler’s Notes.

These sections, which comprised 1903, p. 223, §§ 4 to 6; reen. R.C., §§ 3257 to 3259; am. 1913, ch. 144, § 1, p. 509; am. 1913, ch. 83, § 1, p. 340; reen. C.L., §§ 3257 to 3259; C.S., §§ 5574 to 5576; I.C.A.,§§ 41-208 to 41-210, were repealed by S.L. 1967, ch. 374, §§ 5 to 7.

Amendments.

The 2020 amendment, by ch. 164, rewrote the section to the extent that a detailed comparison is impracticable.

Effective Dates.

Section 5 of S.L. 1998, ch. 332 declared an emergency. Approved March 25, 1998.

Beneficial Use.

Entity that applies the water to beneficial use has a right that is more than a contractual right. United States v. Pioneer Irrigation Dist. (In re SRBA Case No. 3957), 144 Idaho 106, 157 P.3d 600 (2007).

Federal Law.

Where the United States bureau of reclamation (BOR) filed water right claims against irrigation entities regarding projects developed pursuant to the Reclamation Act of 1902, any rights held by BOR were subject to rights of the beneficial users that were served by the irrigation districts because, inter alia, (1) federal law deferred to state law in determining the rights to water in the reclamation projects, (2) the beneficial users had an interest that was stronger than mere contractual expectancy, and (3) title to the use of the water was held by the consumers or users of the water. United States v. Pioneer Irrigation Dist. (In re SRBA Case No. 3957), 144 Idaho 106, 157 P.3d 600 (2007).

Proof of Use Inadmissible.

Where it appeared that an irrigation district failed to prove the issuance of a permit by the state engineer (department of water resources), or a compliance with the terms of such a permit, as it has alleged in its pleading, it was not permitted to prove the beneficial use of an additional amount of water. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936).

Vesting of Rights.

A water right does not vest until the statutory procedures for obtaining a license are completed, including the issuance of the license. Idaho Power Co. v. Idaho Dep’t of Water Res. (In re Licensed Water Right No. 03-7018), 151 Idaho 266, 255 P.3d 1152 (2011).

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

C.J.S.

§ 42-217a. Certified water right examiner.

The director shall adopt all necessary rules and regulations setting forth the procedures and requirements for qualification of licensed professional engineers or geologists to become certified water right examiners.

An initial application fee of two hundred dollars ($200) shall be paid by those applying for certification with an annual renewal fee of fifty dollars ($50.00). All certificates of appointment shall expire on March 31 of each year and thereafter are void unless renewed. The fees collected shall be transmitted to the state treasurer for deposit in the water administration account.

Employees of the department shall be exempt from the requirements of this section.

History.

I.C.,§ 42-217a, as added by 1987, ch. 97, § 1, p. 192.

Cross References.

State treasurer,§ 67-1201 et seq.

Water administration account,§ 42-238a.

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation) has been changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

The bracketed insertions were added by the compiler to conform to the statutory citation style.

Amendments.

The 2011 amendment, by ch. 171, in the first paragraph, substituted “permit holder” for “applicant” and deleted “provided” from the end; and rewrote subsection (2), which formerly read: “That upon receipt of proof of beneficial use after sixty (60) days after such notice of lapsing, the director shall require sufficient evidence to be submitted by the permit holder to clearly establish the extent of beneficial use made during the time authorized by the permit and any extensions of time previously approved. Upon finding that beneficial use had occurred during the authorized period and upon a showing of reasonable cause for filing a late proof of beneficial use, the director may reinstate the permit with the priority date advanced to the day that proof of beneficial use was received.” The 2020 amendment, by ch. 164, designated the introductory paragraph as subsection (1); redesignated former subsections (1) to (3) as present subsections (2) to (4); and rewrote present subsection (1), which formerly read: “A permit upon which the proof of beneficial use has not been submitted, or a request for extension of time has not been received on or before the date set for such proof, shall lapse and be of no further force nor effect. Notice of said lapsing shall be sent by the department to the permit holder at the address of record by regular mail.”

Effective Dates.

Section 2 of S.L. 1983, ch. 157 declared an emergency. Approved April 8, 1983.

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

Beneficial Use.

Entity that applies the water to beneficial use has a right that is more than a contractual right. United States v. Pioneer Irrigation Dist. (In re SRBA Case No. 3957), 144 Idaho 106, 157 P.3d 600 (2007).

Doctrine of Relation.

Doctrine of relation as to priority of appropriation cannot be invoked until final consummation of appropriation as defined by statute, and can be invoked only to extent of completion of appropriation. Basinger v. Taylor, 30 Idaho 289, 164 P. 522 (1917).

Federal Law.

The federal power act does preempt some state laws relating to the building of dams on navigable streams, and it particularly preempts those state laws which require a state license as a predicate for building a dam; however, state law regarding proprietary rights in water is expressly saved. Idaho Power Co. v. State, 104 Idaho 575, 661 P.2d 741 (1983).

Mutual Irrigation Company.

Where the United States bureau of reclamation (BOR) filed water right claims against irrigation entities regarding projects developed pursuant to the Reclamation Act of 1902, any rights held by BOR were subject to rights of the beneficial users that were served by the irrigation districts because, inter alia, (1) federal law deferred to state law in determining the rights to water in the reclamation projects, (2) the beneficial users had an interest that was stronger than mere contractual expectancy, and (3) title to the use of the water was held by the consumers or users of the water. United States v. Pioneer Irrigation Dist. (In re SRBA Case No. 3957), 144 Idaho 106, 157 P.3d 600 (2007). Mutual Irrigation Company.

It was error to grant an investor summary judgment holding that the investor acquired shares in a mutual irrigation company, when the investor acquired land in the company’s boundaries, due to the shares being an appurtenance to the acquired land, because (1) the court did not consider the company’s governing documents, which did not “locate” the shares, or how the company acquired underlying water rights, and (2) the shares were not attached to specific tracts, as the water right had to be read as appurtenant to “any and all” acres within the company’s boundaries. Eagle Creek Irrigation Co. v. A.C.& C.E. Invs., Inc., 165 Idaho 467, 447 P.3d 915 (2019).

Priority Date Right Not Vested.

The filing of an application for a water appropriation permit establishes the priority date of the appropriation under the relation back doctrine, but any such priority date right is nonetheless contingent upon future statutory adherence and issuance of a license pursuant to this section and is therefore not a vested right which would preclude application of§ 42-203, as amended in 1978 (now§ 42-203A), to a permit application filed prior to that amendment. Hidden Springs Trout Ranch, Inc. v. Allred, 102 Idaho 623, 636 P.2d 745 (1981).

Subordinated Rights.

State water licenses not containing subordination clauses did not control and override the federal subordination clause contained in the federal licenses for the Hells Canyon hydroelectric project; however, neither were the state water licenses preempted by the federal license. Idaho Power Co. v. State, 104 Idaho 575, 661 P.2d 741 (1983).

When the federal power commission (now federal energy regulatory commission) authorized the obtention of only subordinated state water rights, and where, the state and the licensee power company both intended the subordination of those water rights, failure to include a subordination clause in the state water licenses did not render those rights unsubordinated. Idaho Power Co. v. State, 104 Idaho 575, 661 P.2d 741 (1983).

Time of Issuance.

Under Idaho law, a water license does not issue until after the diversion works are completed and the water is applied to a beneficial use, albeit an application or license can be made prior to actual construction. Idaho Power Co. v. State, 104 Idaho 575, 661 P.2d 741 (1983).

Use of Water.

In order to warrant issuance of license, it must appear that water is being used at place claimed, and for purposes for which it was originally intended. Basinger v. Taylor, 36 Idaho 591, 211 P. 1085 (1922).

Vesting of Rights.

A water right does not vest until the statutory procedures for obtaining a license are completed, including the issuance of the license. Idaho Power Co. v. Idaho Dep’t of Water Res. (In re Licensed Water Right No. 03-7018), 151 Idaho 266, 255 P.3d 1152 (2011).

Idaho Law Review.

Idaho Law Review. — Why Does Idaho’s Water Law Regime Provide for Forfeiture of Water Rights?, Peter R. Anderson and Aaron J. Kraft. 48 Idaho L. Rev. 419 (2012).

Amendments.

The 2020 amendment, by ch. 164, substituted “Water right licenses” for “Such license” at the beginning of the first sentence.

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation) has been changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a). CASE NOTES

Beneficial Use.

Where the United States bureau of reclamation (BOR) filed water right claims against irrigation entities regarding projects developed pursuant to the Reclamation Act of 1902, any rights held by BOR were subject to rights of the beneficial users that were served by the irrigation districts because, inter alia, (1) federal law deferred to state law in determining the rights to water in the reclamation projects, (2) the beneficial users had an interest that was stronger than mere contractual expectancy, and (3) title to the use of the water was held by the consumers or users of the water. United States v. Pioneer Irrigation Dist. (In re SRBA Case No. 3957), 144 Idaho 106, 157 P.3d 600 (2007).

In General.

The evidence was undisputed that the duty of water upon the 217 acres of land would be one inch to the acre in suit brought by plaintiff seeking to have decreed a prior right to the use of 125 miner’s inches for irrigation purposes of certain creek waters which plaintiffs alleged entitlement by reason of a prior decree. Nordick v. Sorensen, 81 Idaho 117, 338 P.2d 766 (1959).

Mutual Irrigation Company.

It was error to grant an investor summary judgment holding that the investor acquired shares in a mutual irrigation company, when the investor acquired land in the company’s boundaries, due to the shares being an appurtenance to the acquired land, because (1) the court did not consider the company’s governing documents, which did not “locate” the shares, or how the company acquired underlying water rights, and (2) the shares were not attached to specific tracts, as the water right had to be read as appurtenant to “any and all” acres within the company’s boundaries. Eagle Creek Irrigation Co. v. A.C.& C.E. Invs., Inc., 165 Idaho 467, 447 P.3d 915 (2019).

Prima Facie Evidence.

Water license is only prima facie evidence of water right. Basinger v. Taylor, 36 Idaho 591, 211 P. 1085 (1922).

Test of Necessary Amount.

The amount of water that a water user had been in the habit of using was not the true test of the duty of the water, but the test was the amount actually necessary for the beneficial purpose to which the water was to be applied. Graham v. Leek, 65 Idaho 279, 144 P.2d 475 (1943).

Waiver of Rights.

By obtaining issuance of license, licensee did not waive any rights he may previously have had through actual diversion and application to a beneficial use. Joyce v. Rubin, 23 Idaho 296, 130 P. 793 (1913); Newport Water Co. v. Kellogg, 31 Idaho 574, 174 P. 602 (1918).

Ownership of Right.

Where a water right is owned by a person other than the underlying landowner, the landowner does not have the power to convey the water right; therefore, this section would not change the ownership of the water right — It would remain with the licensee.OAG 88-6.

Cross References.

State treasurer,§ 67-1201 et seq.

Water administration account,§ 42-238a.

Amendments.

The 2011 amendment, by ch. 172, in the introductory paragraph in subsection A., deleted “or an application to change the point of diversion, place, period or nature of use of water under a vested water right” from the end; in subsection C., substituted “$100” for “$50.00”; and added subsection O.

The 2012 amendment, by ch. 218, added subsection P.

The 2018 amendment, by ch. 42, added paragraph O.8.

Compiler’s Notes.

The “s” enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 3 of S.L. 1986, ch. 242 declared an emergency. Approved April 4, 1986.

Section 2 of S.L. 2000, ch. 177 provided that the act shall be in full force and effect on and after July 1, 2000.

Construction.

While conduit through which water user diverted water was not strictly a ditch or canal, nevertheless he was liable for fee based on capacity of his diversion works. Idaho Power & Transp. Co. v. Stephenson, 16 Idaho 418, 101 P. 821 (1909).

Amendments.

This section was amended by two 1996 acts, ch. 297, § 5, and ch. 333, § 1, both effective July 1, 1996, which appear to be compatible and have been compiled together. Whereas both acts added a third sentence to subsection (2), the sentence added by ch. 297, § 5, has been compiled as the present third sentence and the sentence added by ch. 333, § 1, has been compiled as the present fourth sentence.

The 1996 amendment, by ch. 297, § 5, in subsection (1), added the present second and third paragraphs, and in the present last paragraph in the first sentence, deleted “and” preceding “the change is consistent”, and substituted “, and the new use is a beneficial use, which in the case of a municipal provider shall be satisfied if the water right is necessary to serve reasonably anticipated future needs as provided in this chapter. The” for “; except the”; and in subsection (2) added the present third sentence.

The 1996 amendment, by ch. 333, § 1, in subsection (2), added the present fourth sentence, and in the present sixth sentence inserted “, or covered by the waste provision of this section,” following “set-aside program”.

The 2020 amendment, by ch. 296, added the last sentence in subsection (2).

Legislative Intent.

Section 1 of S.L. 1990, ch. 141 read: “It is the intent of the legislature that passage of this act shall not affect existing appropriations of water that are used outside the state of Idaho nor affect the provisions of any interstate compact.”

Compiler’s Notes.

Section 6 of S.L. 1990, ch. 141 read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Effective Dates.

Section 2 of S.L. 1945, ch. 63 declared an emergency. Approved Feb. 21, 1945.

Section 4 of S.L. 1981, ch. 147 declared an emergency. Approved March 27, 1981. CASE NOTES

Abandonment.

Abandonment is a question of intention and must be evidenced by a clear and decisive act. Idaho Farms Co. v. North Side Canal Co., 24 F. Supp. 189 (D. Idaho 1938), rev’d on other grounds, 107 F.2d 481 (9th Cir. 1939).

Patentee of land, over which right of way for reservoir had been granted, or his successor in interest, may institute proceedings to declare forfeiture and quiet title in case of abandonment. Carns v. Idaho-Iowa Lateral & Reservoir Co., 34 Idaho 330, 202 P. 1071 (1921); Hurst v. Idaho-Iowa Lateral & Reservoir Co., 34 Idaho 342, 202 P. 1068 (1921). Where it appeared from testimony of engineers that canal of prior appropriator lacked capacity to carry water decreed to it, and that the excess had been returned to stream and used by subsequent appropriators, abandonment resulted against such prior appropriator, a five-year period having elapsed. Albrethsen v. Wood River Land Co., 40 Idaho 49, 231 P. 418 (1924).

An abandonment of a water right must have been continuous for five consecutive years. Carrington v. Crandall, 65 Idaho 525, 147 P.2d 1009 (1944).

Only when an appropriator abandons his water by failing to apply it to a beneficial use for the statutory period of five years can it be considered and treated as unappropriated public water of the state. Colthorp v. Mountain Home Irrigation Dist., 66 Idaho 173, 157 P.2d 1005 (1945).

Water right was not forfeited even though abandoned for over five years where applicant for transfer resumed use of water prior to filing petition for transfer. In re Boyer, 73 Idaho 152, 248 P.2d 540 (1952).

No forfeiture or abandonment results if the nonuser is prevented from exercising his rights by circumstances over which he has no control. Hodges v. Trail Creek Irrigation Co., 78 Idaho 10, 297 P.2d 524 (1956).

Nonpayment of purported upkeep charge by plaintiff did not result in forfeiture or abandonment of plaintiff’s water rights where the plaintiff received no notice or demand for payment from defendant irrigation company. Hodges v. Trail Creek Irrigation Co., 78 Idaho 10, 297 P.2d 524 (1956).

An appropriator who fails to make beneficial use of his water for the statutory period may forfeit his rights, but title to such water right cannot be acquired by another, where such other claimant was the party who prevented the use. Hodges v. Trail Creek Irrigation Co., 78 Idaho 10, 297 P.2d 524 (1956).

Where protestants asserted that water, which applicant had tried to appropriate by his permit, was seepage water to which they had superior rights through prior use and enjoyment, and there was no evidence as to the actual amount of water used by protestants over and above their decreed rights, or amount claimed at point of diversion that had not been adjudicated, the evidence was insufficient to establish that any of the protestants had abandoned any right to the use of their prior decreed rights. Cantlin v. Carter, 88 Idaho 179, 397 P.2d 761 (1964).

A senior appropriator did not lose by laches his right to object to a conflicting diversion by a junior appropriator by failure to assert his rights in previous rights, where such diversion had not previously interfered with his use of the water to which he was entitled. Martiny v. Wells, 91 Idaho 215, 419 P.2d 470 (1966).

In an action brought by upstream landowners against downstream owners who possessed senior water appropriation rights fixed by judicial decree for a declaratory judgment that upstream owners had acquired greater water rights than those fixed in the decree, where the record did not identify any measurable five-year period of downstream owners’ non-use of their senior rights, the trial court was correct in finding that no forfeiture occurred. Gilbert v. Smith, 97 Idaho 735, 552 P.2d 1220 (1976).

In an action brought by upstream landowners against downstream owners who possessed senior water appropriation rights fixed by judicial decree for a declaratory judgment that upstream owners had acquired greater water rights than those fixed in the decree, where the evidence established that downstream owners were often unable to continuously make beneficial use of their senior rights and that upstream owners occasionally interfered with those rights without apparent objection but did not establish a clear intention to abandon the water rights, there was substantial evidence to support the trial court’s finding that upstream owners failed to meet their burden of proving abandonment. Gilbert v. Smith, 97 Idaho 735, 552 P.2d 1220 (1976). Mere evidence that beaver dams and sump holes or sinks had caused losses of creek water and difficulty in obtaining water to satisfy water rights of downstream landowner did not establish a case of abandonment or forfeiture, thus upstream landowner who sought to divert the water and apply it to beneficial use could not be permitted to interfere with senior water rights of downstream owner. Gilbert v. Smith, 97 Idaho 735, 552 P.2d 1220 (1976).

Where lessees had failed to use the full decreed water rights of the river appurtenant to leased farmland, the unused water rights could have been forfeited by non-use prior to the end of the lease to the substantial injury of lessor’s reversionary interest. Olson v. Bedke, 97 Idaho 825, 555 P.2d 156 (1976).

Intent to abandon must be proved by clear and convincing evidence of unequivocal acts, and mere nonuse of a water right, standing alone, is not sufficient for a per se abandonment. Jenkins v. State, Dep’t of Water Resources, 103 Idaho 384, 647 P.2d 1256 (1982).

Intent to abandon is a question of fact to be decided by the trier of fact. Therefore, where the record showed only nonuse, disclosing no intent to abandon, the property owner did not lose his water right by common-law abandonment. Jenkins v. State, Dep’t of Water Resources, 103 Idaho 384, 647 P.2d 1256 (1982).

Under Section 27 of the Federal Power Act, 16 U.S.C. § 821, all state water law is preserved “relating to the control, appropriation, use, or distribution of water.” Idaho’s state water law, allowing subsequent appropriators to perfect a water right in water that has been abandoned or forfeited clearly relates to the control, appropriation, use or distribution of water; hence, neither the Federal Power Act nor a license issued pursuant to that authority has overridden Idaho’s law of abandonment or forfeiture of water rights. Idaho Power Co. v. State, 104 Idaho 575, 661 P.2d 741 (1983).

While the language of§§ 61-327 to 61-331 is very broad in forbidding any transfer “directly or indirectly, in any manner whatsoever” of electric utility property (§ 61-328), such sections are inapplicable to abandonment or forfeiture of a water right. If those sections were applied to abandonment or forfeiture of a water right used to generate electricity, the attorney general would be required to file an action to have such an escheat decreed, and thereafter there would be a court ordered sale of the property; such a scheme is totally inconsistent with subsection (2) of this section, which provides that if a water right is abandoned or forfeited it reverts to the state, following which third parties may perfect an interest therein. Idaho Power Co. v. State, 104 Idaho 575, 661 P.2d 741 (1983).

Abandonment Not Favored.

If no public interest is forwarded by the abandonment, equity is against declaring a forfeiture. Idaho Farms Co. v. North Side Canal Co., 24 F. Supp. 189 (D. Idaho 1938), rev’d on other grounds, 107 F.2d 481 (9th Cir. 1939).

Abandonment and forfeitures of water rights are not favored, and, even though forfeited and abandoned for five years prior to the time that subsequent appropriators initiated their right, if, subsequent to such five-year period, and prior to such subsequent appropriators’ initiation of their right, the first appropriators and their predecessors in interest under claim of right and continuity of interest again began to exercise their water rights, there would be no abandonment which could inure to the benefit of subsequent appropriators. Zezi v. Lightfoot, 57 Idaho 707, 68 P.2d 50 (1937). Forfeiture of water rights is not favored, and all intendments are to be indulged in against a forfeiture. Hodges v. Trail Creek Irrigation Co., 78 Idaho 10, 297 P.2d 524 (1956).

Action to Quiet Title.

Where predecessor in title of both plaintiff and defendant had transferred water right from ranch now owned by defendant to ranch now owned by plaintiff, latter could maintain action to quiet title to such water right although predecessor in title had not had statutory authority to make such change. Federal Land Bank v. Union Cent. Life Ins. Co., 51 Idaho 490, 6 P.2d 486 (1931).

Appeals.

Any party aggrieved by decision of commissioner may either appeal to district court or commence original action in said court. Crockett v. Jones, 42 Idaho 652, 249 P. 483 (1926).

Hearing on appeal to district court from reclamation commissioner must be reviewed by supreme court on appeal and not by writ of review. State v. Adair, 49 Idaho 271, 287 P. 950 (1930).

Proceedings before district court under this section are de novo. First Secur. Bank v. State, 49 Idaho 740, 291 P. 1064 (1930).

On appeal from action of department of reclamation (now department of water resources), district court acquires full equitable jurisdiction over entire controversy. In re Rice, 50 Idaho 660, 299 P. 664 (1931).

District court acquired full equitable jurisdiction on appeal from reclamation commission order and had full authority to impose reasonable conditions to avoid injury. Beecher v. Cassia Creek Irrigation Co., 66 Idaho 1, 154 P.2d 507 (1944).

Use of a summary judgment procedure is permissible on an appeal from a ruling by the director of the department of water resources. Beker Indus., Inc. v. Georgetown Irrigation Dist., 101 Idaho 187, 610 P.2d 546 (1980).

Application to Split Water Rights.

Application to split a water right was properly denied where the transfer would have resulted in an illegal enlargement of the right above its historical beneficial use, and the watermaster expressed his concern that without stringent regulation, the proposed transfer would damage downstream rights. Barron v. Idaho Dep’t of Water Resources, 135 Idaho 414, 18 P.3d 219 (2001).

Appurtenancy.

Water right was not necessarily appurtenant to land on which it was used, and could be separated therefrom. First Sec. Bank v. State, 49 Idaho 740, 291 P. 1064 (1930).

When a civilian conservation corps camp was dismantled and a waterline by which it received water from a nearby creek was abandoned, such waterline became the property of the state of Idaho and was not included in a deed of land which included in its habendum clause “the appurtenances thereon.” Sutton v. Brown, 91 Idaho 396, 422 P.2d 63 (1966).

Beneficial Use.

Although the doctrine of beneficial use is a concept that is constitutionally recognized and that permeates Idaho’s water code, the Idaho Constitution does not mandate that non-application to a beneficial use, for any period of time no matter how small, results in the loss or reduction of water rights. State v. Hagerman Water Right Owners, Inc., 130 Idaho 736, 947 P.2d 409 (1997).

Water rights in Idaho are not subject to statutory forfeiture for failure to beneficially apply water for a duration less than that provided for in subdivision (2) of this section. State v. Hagerman Water Right Owners, Inc., 130 Idaho 736, 947 P.2d 409 (1997).

Burden of Proof.

In an action to quiet title, brought by subsequent appropriators on the theory that the former appropriators had abandoned the use of water, the burden of proof was on the subsequent appropriators to show that persons who had used the water by permission used more than that for which they had permission. Zezi v. Lightfoot, 57 Idaho 707, 68 P.2d 50 (1937).

Change in Nature of Use.

The director of the department of water resources has not been granted the authority to approve an application for a requested change in the nature of the use of water. Beker Indus., Inc. v. Georgetown Irrigation Dist., 101 Idaho 187, 610 P.2d 546 (1980).

Change of Diversion.

The owner of a water right had the statutory right to change his point of diversion provided that the rights of others were not injured, and such change did not work a forfeiture or an abandonment of such right. Graham v. Leek, 65 Idaho 279, 144 P.2d 475 (1944).

A change in point of use will not be permitted without limitations if the enlarged use in time or amount increases the burden on the stream, or decreases the volume of water in the stream to the injury of appropriators on the stream. Beecher v. Cassia Creek Irrigation Co., 66 Idaho 1, 154 P.2d 507 (1944).

Where the original permit incorrectly located the point of diversion, a subsequent petition to correct this designation to conform to the actual point of diversion was not a petition to change the point of diversion. Keller v. Magic Water Co., 92 Idaho 276, 441 P.2d 725 (1968).

It was error for the district court to enjoin landowners from changing the point of diversion of water from a well located on one section of their land to another, where such owners had filed a proper application for such change with the state reclamation engineer (now director of the department of water resources), who declined to hear or process the application. State ex rel. Tappan v. Smith, 92 Idaho 451, 444 P.2d 412 (1968).

Construction.

Where one secures permit under this chapter and appropriates water thereunder, it is a statutory appropriation, and to change the point of diversion there must be a substantial compliance with this section. Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073 (1915).

This section is not in conflict with§ 42-108. Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073 (1915).

This section neither adds to nor detracts from property rights already existing. First Sec. Bank v. State, 49 Idaho 740, 291 P. 1064 (1930). This section is remedial and should be construed liberally. In re Rice, 50 Idaho 660, 299 P. 664 (1931).

Determinations by Director.

The director of the department of water resources has jurisdiction to determine the question of abandonment and forfeiture and such is required as a preliminary step to performance of his statutory duty in determining whether or not a proposed transfer would injure other water rights. Jenkins v. State, Dep’t of Water Resources, 103 Idaho 384, 647 P.2d 1256 (1982).

Effect of Seepage.

So long as that water which arrived at its destination was put to a beneficial use, and so long as the amount of water lost through seepage during the transportation of that water from its place of origin to its place of use was reasonable, it could not be said that the mere fact of seepage transformed it into water not beneficially used. Hidden Springs Trout Ranch, Inc. v. Hagerman Water Users, Inc., 101 Idaho 677, 619 P.2d 1130 (1980).

Enlargement of Existing Right.

Transfer of water right to divert 1.6 cfs of water to three separate fields did not result in an enlargement of the existing right, even though consumptive use to one of the fields had been forfeited by nonuse. Dovel v. Dobson, 122 Idaho 59, 831 P.2d 527 (1992).

Estoppel to Deny User’s Right.

Where it appeared that a water user’s title may have been originally questionable or uncertain, and where one who had a superior right thereto stood by with full knowledge of the facts for more than twenty years and allowed an adverse claimant to proceed to use the water on the theory that such adverse user had a valid title to the water, and such adverse user, in the meantime, incurred large indebtedness on the strength of title to the water, the one who formerly had a superior right is estopped to assert it. Hillcrest Irrigation Dist. v. Nampa & Meridian Irrigation Dist., 57 Idaho 403, 66 P.2d 115 (1937).

Evidence Insufficient.

Plaintiff’s application for transfer of water rights was properly denied where the applicant did not present sufficient evidence of non-injury, no enlargement of right, and favorable public interest concerning the transfer. Barron v. Idaho Dep’t of Water Resources, 135 Idaho 414, 18 P.3d 219 (2001).

Forfeiture.

Where plaintiffs attempted to establish, at trial, that they had established a right to disputed water with the original priority dates of 1872, 1873 and 1879, it was inconsistent for them to argue on appeal that the rights were forfeited under this section, since under a forfeiture theory the priority date of the original appropriator is lost, the water rights revert to the state and the subsequent appropriator does not obtain title to the rights dating back to the original user’s priority date. Thus, since plaintiff began using defendant’s water in 1939 the forfeiture period under this section would run to 1944 and the water rights would then have reverted to the state, to become available to plaintiffs for appropriation. Sears v. Berryman, 101 Idaho 843, 623 P.2d 455 (1981). Forfeitures are not favored, and clear and convincing proof is required to support a forfeiture. Jenkins v. State, Dep’t of Water Resources, 103 Idaho 384, 647 P.2d 1256 (1982).

Wrongful interference with a water right or failure to use the water because of circumstances over which the water right holder had no control have been recognized as defenses to forfeiture. Jenkins v. State, Dep’t of Water Resources, 103 Idaho 384, 647 P.2d 1256 (1982).

Where there was substantial, albeit conflicting, evidence indicating that property owner had failed to use any creek water for a beneficial use between 1961 and 1979, a period of 18 years, and the local water master testified that he had delivered water from the creek for those 18 years, but had not delivered nor been requested to deliver any of the creek water to said property owner, the trial court finding that the channels from the creek to a second creek did not carry a regular flow of water except during the spring runoff, supported the conclusion of a statutory forfeiture and the denial of the property owner’s application for transfer of point of diversion. Jenkins v. State, Dep’t of Water Resources, 103 Idaho 384, 647 P.2d 1256 (1982).

Forfeiture of water rights is conceptually distinct from common-law abandonment. While abandonment is predicated upon the elements of intent and conduct, and it requires an intent to abandon and the actual surrender or relinquishment of water rights, statutory forfeiture provides that all rights to water are lost where the appropriator fails to make “beneficial use” of the water for a continuous five-year period regardless of intent. McAtee v. Faulkner Land & Livestock, Inc., 113 Idaho 393, 744 P.2d 121 (Ct. App. 1987).

Partial forfeiture is provided for by subdivision (2) of this section. State v. Hagerman Water Right Owners, Inc., 130 Idaho 727, 947 P.2d 400 (1997).

Where stockholders wished to use forfeiture only to avoid paying maintenance assessments, the adjudication court’s determination that no water rights were forfeited was affirmed; a finding of forfeiture by an appropriator who did nothing to cause the nonuse of the water would have done nothing to advance the policy behind the statute to secure the maximum use and benefit of the state’s water resources. Aberdeen-Springfield Canal Co. v. Peiper, 133 Idaho 82, 982 P.2d 917 (1999).

Where the majority of the property had not been irrigated for more than five consecutive years, it resulted in a forfeiture under subsection (2) of this section. McCray v. Rosenkrance, 135 Idaho 509, 20 P.3d 693 (2001).

The “no control” exception to forfeiture of a water right is codified in§ 42-223(6), which provides that no portion of any water right shall be lost or forfeited for nonuse if the nonuse results from circumstances over which the water right owner has no control. Whether the water right owner has control over nonuse of water shall be determined on a case-by-case basis. The availability of water qualifies as a circumstance over which an appropriator has no control. That is, for a water right to be forfeited, water must be available to satisfy the water right during the alleged period of non-use. Barnes v. Jackson, 163 Idaho 194, 408 P.3d 1266 (2018).

The resumption-of-use doctrine is a defense to forfeiture of a water rigfht, if, after five years of nonuse, the appropriator resumes use prior to a claim of right by a third party. Therefore, to avoid forfeiture, resumption-of-use must occur prior to a claim of right by a third party. A third party has made a claim of right if he has: (1) instituted proceedings to declare a forfeiture; (2) obtained a valid water right authorizing the use of such water with a priority date prior to the resumption of use; or (3) used the water pursuant to an existing water right. Barnes v. Jackson, 163 Idaho 194, 408 P.3d 1266 (2018).

Injury.

Injury to one owner of drainage canal by co-owners’ abandonment thereof does not prevent latter from selling water right, or changing place of conveyance, point of diversion, or place of use. In re Johnson, 50 Idaho 573, 300 P. 492 (1931).

If transfer of water right by petitioner did not injure any other person, it was no defense to petition that if other persons transferred their rights there would be a resulting injury. In re Boyer, 73 Idaho 152, 248 P.2d 540 (1952).

The director is statutorily required to examine all evidence of whether a proposed transfer will injure other water rights or constitute an enlargement of the original right. Evidence which demonstrates that the right sought to be transferred has been abandoned or forfeited is probative as to whether that transfer would injure other water rights. Jenkins v. State, Dep’t of Water Resources, 103 Idaho 384, 647 P.2d 1256 (1982).

Jurisdiction.

Where plaintiff sought judicial review of a water use decision of the Idaho department of water resources in the district court of the seventh judicial district, the district court lacked jurisdiction to review the IDWR decision. The district court’s decision was vacated and the case remanded to the Snake River Basin adjudication district court. Sagewillow, Inc. v. Idaho Dep’t of Water Resources, 135 Idaho 24, 13 P.3d 855 (2000).

Liability for Bonded Indebtedness.

District bonds were not affected by transfer of petitioner’s water rights where trial court held that proportionate liability of bonded indebtedness in district remained regardless of transfer. In re Boyer, 73 Idaho 152, 248 P.2d 540 (1952).

Permissive Use.

Permissive use was sufficient to inure to the benefit of the true owners of water or persons entitled to its use and to prevent the operation of the abandonment statute. Zezi v. Lightfoot, 57 Idaho 707, 68 P.2d 50 (1937).

Persons Entitled to Change.

Right to change point of diversion belongs to stockholding consumer in mutual ditch company as fully as to any other appropriator, so long as rights of others are not injuriously affected. Twin Falls Canal Co. v. Shippen, 46 Idaho 787, 271 P. 578 (1928).

An irrigation company has the right to purchase water rights and change points of diversion provided such action will not result in substantial injury to water rights of others. Beecher v. Cassia Creek Irrigation Co., 66 Idaho 1, 154 P.2d 507 (1944).

Pleadings.

Complaint alleging abandonment should allege that specific quantities of water have been used or are claimed by plaintiff. Inman v. Round Valley Irrigation Co., 41 Idaho 482, 238 P. 1018 (1925).

Prescriptive Title by Adverse Use.

Private Settlement Agreement.

Where evidence established that upstream landowners and their predecessors interfered with senior water rights of downstream landowners, but where the evidence indicated that upstream owners’ use was intermittent, interrupted and not wholly under an assertion of right, upstream owners failed to show any rights in themselves to the water by adverse possession. Gilbert v. Smith, 97 Idaho 735, 552 P.2d 1220 (1976). Private Settlement Agreement.

A private settlement agreement cannot define, add, or subtract from the elements of a validly adjudicated water right. It can only limit, condition, or clarify the administration of the right as between the private parties to the agreement. City of Blackfoot v. Spackman, 162 Idaho 302, 396 P.3d 1184 (2017).

Public Interest.

Under§ 42-203A, any application to appropriate water in Idaho is subject to the local public interest standard. Likewise, any change to a water right under this section is also subject to a determination that the change is in the local public interest as stated in§ 42-203A; as is an amendment to a water permit under§ 42-211. Hardy v. Higginson, 123 Idaho 485, 849 P.2d 946 (1993).

Idaho department of water resources’ hearing officer’s decision to transfer water to a proposed dairy was supported by substantial and competent evidence, despite property owners’ protestations, and the hearing officer properly considered local public interest, such as economic development. Chisholm v. State Dep’t of Water Res. (In re Transfer No. 5639), 142 Idaho 159, 125 P.3d 515 (2005).

Questions Determined in Separate Action.

In proceeding to change point of diversion of water, question of abandonment of priority was not before court if proper objection was made thereto, and such right should be settled in some other proceeding. Twin Falls Canal Co. v. Shippen, 46 Idaho 787, 271 P. 578 (1928).

If ownership of water, or right to change, is disputed in proceeding under this section, such question must be determined in action for that purpose. Federal Land Bank v. Union Cent. Life Ins. Co., 51 Idaho 490, 6 P.2d 486 (1931).

Relation to Other Law.

The purpose of§ 42-1425 is to streamline the adjudication process by providing a substitute for the transfer process required by this section and to protect existing water uses which were the result of past transfers, regardless of compliance with statutory mandates. Fremont-Madison Irrigation Dist. & Mitigation Group v. Idaho Ground Water Appropriators, Inc., 129 Idaho 454, 926 P.2d 1301 (1996).

Remedy in Equity.

Where applicant for change of place in use of water was not owner of land to which water had been made appurtenant, he could proceed in equity rather than under this section. First Sec. Bank v. State, 49 Idaho 740, 291 P. 1064 (1930).

Resumption of Use.

Forfeiture of water right was not effective although statutory abandonment had occurred, if the original owner resumed the use prior to a claim of right by a third person. Carrington v. Crandall, 65 Idaho 525, 147 P.2d 1009 (1944). If use of water right is resumed after the five-year period, but before any third parties make a claim in the water, then the courts will decline to declare a forfeiture. Jenkins v. State, Dep’t of Water Resources, 103 Idaho 384, 647 P.2d 1256 (1982).

Idaho department of water resources applied the resumption-of-use doctrine incorrectly, necessitating vacation of its order and remand, where although the findings indicated that the owner of senior water rights had failed to use them for a period longer than five years, there was no indication that the junior rights holders had commenced their use before the senior holder had resumed its use. Sagewillow, Inc. v. Idaho Dep’t of Water Res., 138 Idaho 831, 70 P.3d 669 (2003).

Reversion to State.

Abandonment of water right began when owner ceased to apply water to beneficial use, and where he failed to so apply it for five years, it reverted to state and again became subject to appropriation. Chill v. Jarvis, 50 Idaho 531, 298 P. 373 (1931).

When the right to the use of water has been lost through nonuse or abandonment, the right to such use reverts to the state and is again subject to appropriation. Graham v. Leek, 65 Idaho 279, 144 P.2d 475 (1944).

If a water right has indeed been lost through abandonment or forfeiture, the right to use that water reverts to the state and is subject to further appropriation. Other parties may then perfect a water right in those waters. Jenkins v. State, Dep’t of Water Resources, 103 Idaho 384, 647 P.2d 1256 (1982).

Right Acquired by Purchaser.

Where purchaser acquired land after the rendition of water right decree, he received only that which the vendor had for sale and if the right to correct the decree had been lost by laches or otherwise, the purchaser was in no better position than the vendor. Albion-Idaho Land Co. v. Adams, 58 F. Supp. 579 (D. Idaho 1945).

Rights to Seepage.

Where appropriator had tried repeatedly to reduce the seepage loss from an open ditch and such efforts culminated in the placement of a steel pipe, it was clear that appropriator never intended to abandon the water nor did appropriator forfeit its rights to seepage water. Hidden Springs Trout Ranch, Inc. v. Hagerman Water Users, Inc., 101 Idaho 677, 619 P.2d 1130 (1980).

Standing to Contest Change.

Where the Box Canyon area was designated by the bureau of land management as an Area of Critical Environmental Concern (ACEC), and where the values justifying the ACEC designation included the identification of four candidate threatened and endangered aquatic species and the scenic and unique natural qualities of the area, the protection of this habitat fell within the local public interest as defined in Shokal v. Dunn , 109 Idaho 330, 770 P.2d 441 (1985); therefore, the protestants, although having no water rights within Box Canyon, sought to protect these locally important factors and thus their interests were properly considered by the director of the Idaho department of water resources. Hardy v. Higginson, 123 Idaho 485, 849 P.2d 946 (1993).

Subsequent Appropriators.

Rule as to change of place of application cannot inure to the aid of subsequent appropriators because, not being appropriators during the time, it was no concern of theirs, except as it bears on the question of abandonment, where or how the water was diverted or applied. Zezi v. Lightfoot, 57 Idaho 707, 68 P.2d 50 (1937).

If a senior right has been abandoned or forfeited, the priority of the original appropriator is lost, and the junior appropriators move up the ladder of priority. Hence if a senior right which had been forfeited or abandoned were allowed to be reinstated through a transfer proceeding, clearly injury would result to otherwise junior appropriators. Jenkins v. State, Dep’t of Water Resources, 103 Idaho 384, 647 P.2d 1256 (1982).

Water Right Decree.

Right based upon decree of court was not immune from showing that it had been abandoned, and such showing did not impeach decree upon which such right was based where evidence of abandonment related to time subsequent to decree. Albrethsen v. Wood River Land Co., 40 Idaho 49, 231 P. 418 (1924).

A decreed water right was not immune from a showing that it had been abandoned, and such showing did not impeach the decree upon which the right was based, where the evidence received with reference to the abandonment related to a time subsequent to the decree. Graham v. Leek, 65 Idaho 279, 144 P.2d 475 (1944).

The equitable principle of laches and negligence barred the correction of water right decree which had been entered 16 years prior and 7 years had elapsed after petitioner had purchased the land, during which time the rights of other owners of water rights had intervened. Albion-Idaho Land Co. v. Adams, 58 F. Supp. 579 (D. Idaho 1945).

Forfeiture Period.

On its face, this section seems to require that a water right be accepted and subsequently rented out in order to toll the forfeiture provisions of subsection (2); however, when§ 42-1764 is interpreted in light of the entire water supply bank act, it is possible to argue that the forfeiture period should be tolled whenever a water right is placed into the bank. Because of the ambiguity within the Act, it is not possible to predict which interpretation a court might adopt.OAG 88-4.

The filing of an application for change in point of diversion, place of use, period of use, or nature of use of a water right does not toll the running of the forfeiture period for nonuse of a water right established by subsection (2).OAG 88-4.

Idaho Law Review.

Idaho Law Review. — Why Does Idaho’s Water Law Regime Provide for Forfeiture of Water Rights?, Peter R. Anderson and Aaron J. Kraft. 48 Idaho L. Rev. 419 (2012).

Am. Jur. 2d.

Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016). Am. Jur. 2d. — 78 Am. Jur. 2d, Waters, §§ 367 to 369.

C.J.S.

§ 42-222A. Temporary changes during drought conditions.

1. Upon declaration of a drought emergency for an area designated by the director of the department of water resources and approved by the governor of the state of Idaho, the director of the department of water resources is authorized to allow temporary changes to the use of water rights consisting of temporary transfers to change point of diversion, place and purpose of use of valid existing water rights or temporary exchanges of water authorized to be diverted under water rights, as provided in section 42-240, Idaho Code, when the director of the department of water resources determines that such change(s) can be accomplished in accordance with the provisions of this section.
2. Application for a temporary change shall be made upon forms provided by the department of water resources and shall be accompanied by an application fee of fifty dollars ($50.00) per application.
3. The director of the department of water resources is not required to publish notice of the proposed change pursuant to the provisions of section 42-211, 42-222(1) or 42-240, Idaho Code, and is not required to make findings as provided in said sections. A temporary change may be approved upon completion of the application form, payment of the filing fee and a determination by the director of the department of water resources that the proposed change can be properly administered and there is no information that the change will injure any other water right. If the water right to be changed is administered by a watermaster within a water district, the director of the department of water resources shall obtain and consider the recommendations of the watermaster before approving the temporary change application.
4. All temporary changes approved pursuant to the provisions of this section shall expire on the date shown in the approval which shall not be later than December 31 of the year in which the emergency transfer approval is made and thereafter the water right shall revert to the point of diversion and place of use existing prior to the temporary change. Nothing herein shall be construed as approval to authorize the construction of a new well as a new point of diversion.
5. The recipient of an approved temporary change issued pursuant to this section shall assume all risk that the diversion and use of the water may cause injury to other water rights, that the change constitutes an enlargement in use of the original right, that the use is not consistent with the conservation of water resources within the state of Idaho and that such use is not in the local public interest. Any applicant for a temporary change who is aggrieved by a denial by the director of the department of water resources of a temporary change pursuant to this section may request a hearing pursuant to the provisions of section 42-1701A(3), Idaho Code, and may seek judicial review of the final order of the director pursuant to the provisions of section 42-1701A(4), Idaho Code.

History.

(6) Temporary changes shall only be approved for the purpose of providing a replacement water supply to lands or other uses which normally have a full water supply except for a drought condition. Temporary changes may not be approved to provide water for new projects or to allow expansion of the use of water under existing water rights. If the right to use the water, the diversion works or the water delivery system is represented by shares of stock in a corporation or if such right, diversion works or delivery system is owned or managed by an irrigation district, no change in point of diversion or place or nature of use of such water shall be made or allowed without the written consent of such corporation or irrigation district. History.

I.C.,§ 42-222A, as added by 1993, ch. 161, § 1, p. 410; am. 2001, ch. 126, § 1, p. 447.

Compiler’s Notes.

The “s” enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 2 of S.L. 1993, ch. 161 declared an emergency. Approved March 25, 1993.

Section 2 of S.L. 2001, ch. 126 declared an emergency. Approved March 23, 2001.

Prior Laws.

Former§ 42-223, which comprised 1945, ch. 97, § 1, p. 147, was repealed by S.L. 2000, ch. 85, § 2, effective July 1, 2000.

Amendments.

The 2008 amendment, by ch. 239, added subsection (11).

Effective Dates.

The 2020 amendment, by ch. 296, added subsection (12). Effective Dates.

Section 3 of S.L. 2003, ch. 166 declared an emergency. Approved March 27, 2003.

Section 2 of S.L. 2008, ch. 239 declared an emergency. Approved March 25, 2008. Section 2 of S.L. 2008, ch. 239 further provided that this act shall apply to all existing water rights, but shall not be applied to revive any water right that has been finally determined to be forfeited prior to the date of passage and approval of this act.

No Control.

The “no control” exception to forfeiturew of a water right is codified in subsection (6), which provides that no portion of any water right shall be lost or forfeited for nonuse if the nonuse results from circumstances over which the water right owner has no control. Whether the water right owner has control over nonuse of water shall be determined on a case-by-case basis. The availability of water qualifies as a circumstance over which an appropriator has no control. That is, for a water right to be forfeited, water must be available to satisfy the water right during the alleged period of non-use. Barnes v. Jackson, 163 Idaho 194, 408 P.3d 1266 (2018).

Idaho Law Review.

Idaho Law Review. — Why Does Idaho’s Water Law Regime Provide for Forfeiture of Water Rights?, Peter R. Anderson and Aaron J. Kraft. 48 Idaho L. Rev. 419 (2012).

Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

Cross References.

Director of department of water resources,§ 42-1801 et seq.

Prior Laws.

Former§ 42-224, Protest against license — Appeal from decision, which comprised 1903, p. 223, § 12; reen. R.C. & C.L., § 3265; C.S., § 5583; I.C.A.,§ 41-217; am. 1980, ch. 238, § 7, p. 526; am. 1994, ch. 64, § 4, p. 121, was repealed by S.L. 2000, ch. 85, § 4, effective July 1, 2000.

Compiler’s Notes.

This section, which comprised S.L. 1903, p. 223, § 33; reen. R.C., § 3266; compiled and reen. C.L., § 3266; C.S., § 5604; I.C.A.,§ 41-218; 1967, ch. 338, § 1, p. 974, was repealed by S.L. 1978, ch. 345, § 3.

Compiler’s Notes.

Former§ 42-225a was amended and redesignated as§ 42-243 by S.L. 1978, ch. 345, § 6.

Compiler’s Notes.

Former§ 42-225b was amended and redesignated as§ 42-244 by S.L. 1978, ch. 345, § 7.

Compiler’s Notes.

The term “this act” in the last sentence in the first paragraph refers to S.L. 1987, chapter 347, which is codified as§§ 42-226, 42-230, 42-233, 42-235, 42-237a, 42-237g, 42-238, 42-1601, 42-1604, 42-1605, 42-1607, 42-4002, 42-4003, 42-4005, and 42-4010. That act was effective on July 1, 1987.

Applicability.

Domestic wells drilled prior to 1978 are exempt from the provisions of this section. Parker v. Wallentine, 103 Idaho 506, 650 P.2d 648 (1982), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

Administration of an irrigation district’s water right is subject to the provisions of the 1951 Idaho ground water act,§§ 42-226 to 42-239. In re Delivery Call of A&B Irrigation Dist., 153 Idaho 500, 284 P.3d 225 (2012).

Change of Diversion.

It was error for the district court to enjoin landowners from changing the point of diversion of water from a well on one section of their land to another, where such owners had filed a proper application for such change with the state reclamation engineer (now the director of the department of water resources), who had declined to hear or process the application. State ex rel. Tappan v. Smith, 92 Idaho 451, 444 P.2d 412 (1968).

A perpetual injunction should not be granted if, by changing the prior appropriator’s method or means of diversion, both parties can be supplied with water. The expense of changing the method or means of diversion, however, must be paid by the subsequent appropriator. Parker v. Wallentine, 103 Idaho 506, 650 P.2d 648 (1982), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

Constitutionality.

The ground water act is consistent with the constitutionally enunciated policy of promoting optimum development of water resources in the public interest. Baker v. Ore-Ida Foods, Inc., 95 Idaho 575, 513 P.2d 627 (1973).

Exemption for Domestic Wells.

Under the plain language of the 1951 ground water act, domestic wells were exempt from the provisions of that act and the exemption for domestic wells was not modified by the 1953 amendment to this section which established the reasonable pumping level limitation on the doctrine of first in time is first in right. Parker v. Wallentine, 103 Idaho 506, 650 P.2d 648 (1982), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

Prior Appropriation Rights.

The mere fact that the words “to clarify that domestic wells are exempted from the provisions of§ 42-229” appeared in the title of the 1978 amendment of§ 42-227 did not mean that the legislature never intended domestic wells to be exempt from the policy statements contained in this section. Parker v. Wallentine, 103 Idaho 506, 650 P.2d 648 (1982), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011). Prior Appropriation Rights.

Prior to the enactment of the ground water act in 1951, the doctrine of prior appropriation, i.e., first in time is first in right, governed the appropriation of ground water in this state, and although this doctrine was modified in certain respects by the enactment of the ground water act, the law applicable to ground water used for domestic purposes was not significantly modified by the act. Parker v. Wallentine, 103 Idaho 506, 650 P.2d 648 (1982), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

Under the doctrine of prior appropriation, because the plaintiff’s domestic well was drilled prior to the defendant’s irrigation well, the plaintiff had a vested right to use the water for his domestic well. That right included the right to have the water available at the historic pumping level or to be compensated for expenses incurred if the defendant subsequent appropriator was allowed to lower the water table and the plaintiff was required to change his method or means of diversion in order to maintain his right to use the water. Parker v. Wallentine, 103 Idaho 506, 650 P.2d 648 (1982), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

There is nothing in the language of this section that purports to permit a junior ground water appropriator to cause material injury to the water rights of a senior appropriator, as long as the junior appropriator is maintaining a reasonable pumping level. Clear Springs Foods, Inc. v. Spackman, 150 Idaho 790, 252 P.3d 71 (2011).

Public Policy.

In the enactment of the ground water act, the legislature decided, as a matter of public policy, that it sometimes may be necessary to modify private property rights in ground water in order to promote full economic development of the resource. Baker v. Ore-Ida Foods, Inc., 95 Idaho 575, 513 P.2d 627 (1973).

Pumping Level Unreasonable.

Although a senior appropriator may have had a prior right to ground water, if his means of appropriation demanded an unreasonable pumping level, his historic means of appropriation would not be protected. Baker v. Ore-Ida Foods, Inc., 95 Idaho 575, 513 P.2d 627 (1973).

Use of Underground Water.

Evidence that there was a dangerous depletion of the underground water in the area of the wells in question, although contradicted, was sufficient to support action of the trial court in enjoining landowners from using water from a newly constructed well on their land and requiring them to cap the well and remove the pump therefrom. State ex rel. Tappan v. Smith, 92 Idaho 451, 444 P.2d 412 (1968).

The total annual withdrawal of water from an aquifer is limited to the average annual recharge of the aquifer. Briggs v. Golden Valley Land & Cattle Co., 97 Idaho 427, 546 P.2d 382 (1976).

Water From Mining Activity.

Cited

Water emanating from a mine portal falls clearly within the definition of public ground water which is subject to appropriation; the water is from an underground source which has been brought to the surface through the excavation of the mine. Branson v. Miracle, 107 Idaho 221, 687 P.2d 1348 (1984). Cited Musser v. Higginson, 125 Idaho 392, 871 P.2d 809 (1994).

Idaho Law Review.

Idaho Law Review. — A Primer on Groundwater Law, Joseph W. Dellapenna. 49 Idaho L. Rev. 265 (2013).

Adaptive Resource Management: Using Idaho as an Example of How States Can Implement Effective Policies, Comment. 50 Idaho L. Rev. 293 (2014).

Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

Cross References.

Department of environmental quality,§ 39-104.

In General.

Under the plain language of the 1951 ground water act, domestic wells were exempt from the provisions of that act and the exemption for domestic wells was not modified by the 1953 amendment to§ 42-226 which established the reasonable pumping level limitation on the doctrine of first in time is first in right. Parker v. Wallentine, 103 Idaho 506, 650 P.2d 648 (1982), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

Domestic wells drilled prior to 1978 are exempt from the provisions of§ 42-226. Parker v. Wallentine, 103 Idaho 506, 650 P.2d 648 (1982), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

Legislative Intent.

Prior Appropriation Rights.

The mere fact that the words “to clarify that domestic wells are exempted from the provisions of§ 42-229” appeared in the title of the 1978 amendment to this section did not mean that the legislature never intended domestic wells to be exempt from the policy statements contained in§ 42-226. Parker v. Wallentine, 103 Idaho 506, 650 P.2d 648 (1982), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011). Prior Appropriation Rights.

Prior to the enactment of the ground water act in 1951, the doctrine of prior appropriation, i.e., first in time is first in right, governed the appropriation of ground water in this state. Although this doctrine was modified in certain respects by the enactment of the ground water act, the law applicable to ground water used for domestic purposes was not significantly modified by the act. Parker v. Wallentine, 103 Idaho 506, 650 P.2d 648 (1982), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

Under the doctrine of prior appropriation, because the plaintiff’s domestic well was drilled prior to the defendant’s irrigation well, the plaintiff had a vested right to use the water for his domestic well. That right included the right to have the water available at the historic pumping level or to be compensated for expenses incurred if the defendant subsequent appropriator was allowed to lower the water table and the plaintiff was required to change his method or means of diversion in order to maintain his right to use the water. Parker v. Wallentine, 103 Idaho 506, 650 P.2d 648 (1982), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

Subsequent Appropriators.

A perpetual injunction should not be granted if, by changing the prior appropriator’s method or means of diversion, both parties can be supplied with water. The expense of changing the method or means of diversion, however, must be paid by the subsequent appropriator. Parker v. Wallentine, 103 Idaho 506, 650 P.2d 648 (1982), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

Compiler’s Notes.

The term “this act” in this section refers to S.L. 1951, chapter 200, which is codified as§§ 42-226 to 42-231, 42-233a, 42-237, 42-237a to 42-237g, 42-238a, 42-238b, and 42-239.

The phrase “the effective date of this act” in the first sentence refers to the effective date of S.L. 1963, chapter 216, which was effective March 25, 1963.

Compiler’s Notes.

The term “this act” in this section refers to S.L. 1951, chapter 200, which is codified as§§ 42-226 to 42-231, 42-233a, 42-237, 42-237a to 42-237g, 42-238a, 42-238b, and 42-239.

The phrase “the effective date of this act” in the second sentence refers to the effective date of S.L. 1951, chapter 200, which was effective May 11, 1951.

Ground Water Right.

Unless a ground water right is specifically excepted from the requirements of this section, it is subject to the provisions of the 1951 Idaho ground water act,§§ 42-226 to 42-239. In re Delivery Call of A&B Irrigation Dist., 153 Idaho 500, 284 P.3d 225 (2012).

Injunction to Prevent Appropriation.

Relation to Other Law.

Landowners could not use water from a well located on a section of their land without perfecting their appropriation of such water as required by this act and, where their application for such appropriation was denied by the state reclamation engineer (now the director of the department of water resources) and there was evidence, although contradicted, that there was a dangerous depletion of the underground water in the area, the district court could, on application of the state reclamation engineer (now the director of the department of water resources), enjoin their use of such water and require them to cap the well and remove the pump therefrom. State ex rel. Tappan v. Smith, 92 Idaho 451, 444 P.2d 412 (1968). Relation to Other Law.

Section 42-1426 provides for a waiver of the mandatory permit requirements of§ 42-201 and/or this section and a decree of a new water right for an enlarged use of the original water right. Fremont-Madison Irrigation Dist. & Mitigation Group v. Idaho Ground Water Appropriators, Inc., 129 Idaho 454, 926 P.2d 1301 (1996).

Idaho Law Review.

Idaho Law Review. — Why Does Idaho’s Water Law Regime Provide for Forfeiture of Water Rights?, Peter R. Anderson and Aaron J. Kraft. 48 Idaho L. Rev. 419 (2012).

Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

Decrees.

Water From Mining Activity.

Nowhere in this title is the director obligated to accept a prior decree issued in a private adjudication as being conclusive proof of the nature of a water right. Although a decree evidences a legal right to the use of water, it does not obligate the director to make a recommendation contrary to his findings. State v. Hagerman Water Right Owners, Inc., 130 Idaho 736, 947 P.2d 409 (1997). Water From Mining Activity.

Water emanating from a mine portal falls clearly within the definition of public ground water which is subject to appropriation; the water is from an underground source which has been brought to the surface through the excavation of the mine. Branson v. Miracle, 107 Idaho 221, 687 P.2d 1348 (1984).

Idaho Law Review.

Idaho Law Review. — A Summary of Revisions to Idaho’s Oil and Gas Conservation Act and Rules: Responding as Production in Idaho Nears Reality, John F. Peiserich and Michael R. Christian. 49 Idaho L. Rev. 497 (2013).

Compiler’s Notes.

The term “this act” in the last sentence refers to S.L. 1953, chapter 182, which is codified as§§ 42-226, 42-231, 42-233a, 42-237, 42-237a to 42-237g, 42-238a, 42-238b, and 42-239.

The name of the director of the department of water administration (formerly the state reclamation engineer) has been changed to the director of the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

Prior Laws.

Former§ 42-232, which comprised S.L. 1951, ch. 200, § 7, p. 423; am. 1953, ch. 182, § 3, p. 277, was repealed by S.L. 1967, ch. 374, § 13.

Compiler’s Notes.

For more on the bureau of reclamation, see http://www.usbr.gov .

Prior Laws.

Former§ 42-233, which comprised S.L. 1951, ch. 200, § 8, p. 423; am. 1953, ch. 182, § 4, p. 277, was repealed by S.L. 1967, ch. 374, § 14; am. 2017, ch. 271, § 29.

Amendments.

The 2012 amendment, by ch. 111, inserted “except as provided in subsection (2) of this section” at the end of the first sentence in subsection (1); added subsection (2); and redesignated former subsections (2) and (3) as present subsections (3) and (4).

The 2017 amendment, by ch. 271, substituted “section 47-316, Idaho Code” for “section 47-320, Idaho Code” near the middle of the first sentence in subsection (2).

The 2019 amendment, by ch. 51, in subsection (a), rewrote the last sentence which formerly read: “The director may exempt a proposed use if the director finds that the proposed use satisfies the following criteria: (i) there is no feasible alternative use of the resource; (ii) there is no economically viable source of water having a bottom hole temperature of eighty-five (85) degrees or less in a well available; and (iii) the exemption is in the public interest,” designating that text as paragraphs (a) to (c).

Compiler’s Notes.

Section 31 of S.L. 2017, ch. 271 provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act”.

Effective Dates.

Section 7 of S.L. 2012, ch. 111 declared an emergency. Approved March 23, 2012. Section 32 of S.L. 2017, ch. 271 declared an emergency. Approved April 6, 2017.

Idaho Law Review.

Idaho Law Review. — A Summary of Revisions to Idaho’s Oil and Gas Conservation Act and Rules: Responding as Production in Idaho Nears Reality, John F. Peiserich and Michael R. Christian. 49 Idaho L. Rev. 497 (2013).

Amendments.

The 2018 amendment, by ch. 41, substituted the present last sentence in the eighth paragraph for the former last sentence, which read: “Such order shall be given only before September 1 and shall be effective for the growing season during the year following the date the order is given.”

Injunction to Prevent Use.

The district court properly enjoined landowners from pumping water from a well, a permit for the use of which had been denied by the state reclamation engineer (now the director of the department of water resources) because located in a critical ground water area, upon evidence, although contradicted, that there was a dangerous depletion of ground water in the area. State ex rel. Tappan v. Smith, 92 Idaho 451, 444 P.2d 412 (1968).

Prior Laws.

Former§ 42-233b, which comprised S.L. 1910, ch. 200, § 10, as added by 1953, ch. 182, § 5, p. 277, was repealed by S.L. 1963, ch. 216, § 4.

Amendments.

The 2016 amendment, by ch. 297, rewrote the last sentence in the last paragraph of the section, which formerly read: “Such order shall be given only before September 1 and shall be effective for the growing season during the year following the date the order is given”.

Effective Dates.

Section 2 of S.L. 1982, ch. 90 declared an emergency. Approved March 17, 1982.

Prior Laws.

Former§ 42-234, which comprised S.L. 1951, ch. 200, § 9(11), p. 423; am. 1953, ch. 182, § 6, p. 277, was repealed by S.L. 1967, ch. 374, § 15.

Amendments.

The 2009 amendment, by ch. 242, substituted the present section heading for “Ground water recharge projects — Authority of department to grant permits”; in subsection (1), substituted “use of water” for “projects” and “ground water basins in accordance with Idaho law and the state water plan may enhance” for “ground water basins in Idaho, may enhance”; added subsections (3) and (4) and redesignated former subsection (3) as subsection (5), and rewrote subsection (2) to the extent that a detailed comparison is impracticable.

Effective Dates.

Section 2 of S.L. 1994, ch. 433 declared an emergency. Approved April 7, 1994.

Recharge.

Recharge is a statutorily recognized beneficial use under subsection (2). As such, it must be included in the purpose of use element, pursuant to§ 42-1411, before a water right may be used for recharge. City of Blackfoot v. Spackman, 162 Idaho 302, 396 P.3d 1184 (2017).

Swan Falls Agreement.

The plain terms of the Swan Falls Agreement, as well as the facts and circumstances surrounding the agreement, conclusively demonstrate the parties’ intent that the hydropower water rights held in trust by the state would be subordinated to all beneficial upstream uses approved in accordance with state law, including aquifer recharge. The Swan Falls Agreement and implementing legislation also demonstrate that the provisions in subsection (2) of this section and§ 42-234(2) regarding the agreement only created an incidental benefit in favor of Idaho Power and did not give rise to any vested rights or priorities.OAG 06-2.

Idaho Law Review.

Idaho Law Review. — Adaptive Resource Management: Using Idaho as an Example of How States Can Implement Effective Policies, Comment. 50 Idaho L. Rev. 293 (2014).

Understanding the 1984 Swan Falls Settlement, Clive J. Strong & Michael C. Orr. 52 Idaho L. Rev. 223 (2016).

Cross References.

Water administration account,§ 42-238a.

Prior Laws.

Former§ 42-235, which comprised S.L. 1951, ch. 200, § 10(12), p. 423; am. 1953, ch. 182, § 7, p. 277, was repealed by S.L. 1967, ch. 374, § 16.

Compiler’s Notes.

This section, which comprised 1951, ch. 200, § 11(13), p. 423, was repealed by S.L. 1967, ch. 374, § 17.

Compiler’s Notes.

As amended by S.L. 1953, ch. 182, § 7, this section, originally numbered § 12, was amended to become § 14 of S.L. 1951, ch. 200.

The bracketed insertions were added by the compiler to conform to the statutory citation style.

Change of Diversion.

It was error for the district court to enjoin landowners from changing the point of diversion of water from a well on one section of their land to another, where such owners had filed a proper application for such change with the state reclamation engineer (now the director of the department of water resources), who had declined to hear or process the application. State ex rel. Tappan v. Smith, 92 Idaho 451, 444 P.2d 412 (1968).

Amendments.

This section was amended by two 1994 acts which appear to be compatible and have been compiled together.

The 1994 amendment, by ch. 430, § 2, added subdivision h.

The 1994 amendment, by ch. 450, § 3, in the introductory paragraph added “in his sole discretion,”; and in the first sentence of subdivision g., deleted “hereafter acquired” preceding “to the use of”; added “discretionary” preceding “power”; and substituted “initiate administrative proceedings to” for “by summary order,”.

Compiler’s Notes.

The term “this act” used throughout this section refers to S.L. 1951, chapter 200, as amended by S.L. 1953, chapter 182, which are codified throughout chapter 2, title 42, Idaho Code.

Effective Dates.

Section 3 of S.L. 1994, ch. 430 declared an emergency. Approved April 7, 1994.

Section 6 of S.L. 1994, ch. 450 declared an emergency and provided that this act shall apply to all calls for distribution of water pending at the time of passage and approval. Approved April 11, 1994. CASE NOTES

Injunction to Prevent Use.

The district court properly enjoined landowners from pumping water from a well, a permit for the use of which had been denied by the state reclamation engineer (now the director of the department of water resources) because located in a critical ground water area, upon evidence, although contradicted, that there was a dangerous depletion of ground water in the area. State ex rel. Tappan v. Smith, 92 Idaho 451, 444 P.2d 412 (1968).

Since mining of an aquifer was explicitly forbidden by this statute, the district court did not err in enjoining pumping beyond the reasonably anticipated average rate of future natural recharge. Baker v. Ore-Ida Foods, Inc., 95 Idaho 575, 513 P.2d 627 (1973); see also Briggs v. Golden Valley Land and Cattle Co., 97 Idaho 427, 546 P.2d 382 (1976).

Well Water.

This section provides that well water cannot be used to fill a ground water right if doing so would either (a) cause material injury to any prior surface or ground water right or (b) result in withdrawals from the aquifer exceeding recharge. Clear Springs Foods, Inc. v. Spackman, 150 Idaho 790, 252 P.3d 71 (2011).

Compiler’s Notes.

The term “this act” in the first sentence in the last paragraph refers to S.L. 1951, chapter 200, as amended by S.L. 1953, chapter 182, which are codified throughout chapter 2, title 42, Idaho Code.

The bracketed letter “s” in the first paragraph was inserted by the compiler to correct the enacting legislation.

The name of the director of the department of water administration (formerly the state reclamation engineer) has been changed to the director of the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

Cross References.

Penalty for misdemeanor when not otherwise provided,§ 18-113.

Compiler’s Notes.

The term “this act” near the end of the fifth sentence refers to S.L. 1951, chapter 200, as amended by S.L. 1953, chapter 182, which are codified throughout chapter 2, title 42, Idaho Code.

The name of the director of the department of water administration (formerly the state reclamation engineer) has been changed to the director of the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

Compiler’s Notes.

The name of the director of the department of water administration (formerly the state reclamation engineer) has been changed to the director of the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

The bracketed insertions were added by the compiler to conform to the statutory citation style.

The bracketed insertion near the end of the fifth sentence was added by the compiler to correct the name of the referenced account. See§ 42-238a.

Compiler’s Notes.

The term “this act” near the middle of the section refers to S.L. 1951, chapter 200, as amended by S.L. 1953, chapter 182, which are codified throughout chapter 2, title 42, Idaho Code.

Appeals to District Court.

Appeals to district courts from water board decisions must be tried de novo requiring case be remanded to district court where a plaintiff’s appeal for summary judgment was dismissed. Hart v. Stewart, 95 Idaho 781, 519 P.2d 1171 (1974).

Before a district court can obtain jurisdiction to hear an appeal from the decision of the director of the department of water resources, it must be shown that the appeal was properly perfected by serving notice on the director. Briggs v. Golden Valley Land & Cattle Co., 97 Idaho 427, 546 P.2d 382 (1976).

Issues on Appeal.

Motion for Rehearing.

Where defendants claimed that issue of effect of their pumping on the ground water supply should not have been considered on their appeal to the district court of order following hearing before department of reclamation (department of water resources), because issue had been considered in a previous hearing before ground water board which was not appealed, claim was rejected because defendants had themselves raised the issue in their notice of appeal to district court and pretrial order of district court judge appeared to indicate that the extent of the ground water supply and the effects of pumping upon that supply were issues to be tried. Stevenson v. Steele, 93 Idaho 4, 453 P.2d 819 (1969). Motion for Rehearing.

Although the rules of the department of water resources do not so provide, the court held that a motion for rehearing operated to toll the sixty-day time limit for appeals from water board decisions. Hart v. Stewart, 95 Idaho 781, 519 P.2d 1171 (1974).

Compiler’s Notes.

The term “this act” at the end of the section refers to S.L. 1951, chapter 200, as amended by S.L. 1953, chapter 182, which are codified throughout chapter 2, title 42, Idaho Code.

Cross References.

Penalty for misdemeanor when not otherwise provided,§ 18-113.

Effective Dates.

Section 5 of S.L. 1963, ch. 216 declared an emergency. Approved March 25, 1963.

Section 6 of S.L. 1994, ch. 450 declared an emergency and provided that this act shall apply to all calls for distribution of water pending at the time of passage and approval. Approved April 11, 1994.

Cross References.

Attorney general,§ 67-1401 et seq.

Compiler’s Notes.

Penalties for misdemeanor when not otherwise provided,§ 18-113.

Cross References.

State treasurer,§ 67-1201 et seq.

Water resource board,§ 42-238.

Compiler’s Notes.

Former§ 42-238, which comprised S.L. 1951, ch. 200, § 13(22), p. 423; 1953, ch. 182, § 9, p. 277, was repealed and reenacted by S.L. 1967, ch. 339.

The term “this act” throughout this section refers to S.L. 1967, chapter 339, which is codified as this section. The reference probably should read “this section.” The bracketed insertion near the end of subsection (9) was added by the compiler to correct the name of the referenced account. See§ 42-238a.

Effective Dates.

Section 3 of S.L. 1971, ch. 149 declared an emergency. Approved March 20, 1971.

Construction Standards.

Subsection (4) mandating the establishment of minimum well construction standards, when read in pari materia with such standards, manifests an intention to prevent contamination of ground water from an unsealed well and thereby creates a mandatory duty upon a driller to cap and seal a finished well. Craig H. Hisaw, Inc. v. Bishop, 95 Idaho 145, 504 P.2d 818 (1972).

Cross References.

State treasurer,§ 67-1201 et seq.

Compiler’s Notes.

Section 3 of S.L. 1968 (2nd E.S.), ch. 25 provided for the transfer of remaining moneys to the water administration fund.

Section 4 of S.L. 1968 (2nd E.S.), ch. 25 provided for the transfer of the appropriation to the state reclamation engineer (director of the department of water resources).

Effective Dates.

Section 5 of S.L. 1968 (2nd E.S.), ch. 25 declared an emergency and provided that this act shall be in effect upon its passage retroactively to July 1, 1967.

Prior Laws.

Former§ 42-238b, which comprised I.C.,§ 42-238b, as added by 1987, ch. 347, § 9, p. 741; am. 1996, ch. 267, § 2, p. 868; am. 1997, ch. 361, § 2, p. 1062, was repealed by S.L. 1998, ch. 173, § 3, effective July 1, 1998.

Compiler’s Notes.

The term “this act” in two places in this section refers to S.L. 1951, chapter 200, which is codified as§§ 42-226 to 42-231, 42-233a, 42-237, 42-237a to 42-237g, 42-238a, 42-238b, and 42-239.

As amended by S.L. 1953, ch. 182, § 11, this section, originally numbered 15, was amended to become § 25 of S.L. 1951, ch. 200.

Section 16 (amended by S.L. 1953, ch. 182 to become § 26) of S.L. 1951, ch. 200, read: “If any part or parts of this act shall be adjudged by the courts to be unconstitutional or invalid, the same shall not affect the validity of any part or parts thereof which can be given effect without the part or parts adjudged to be unconstitutional or invalid. The legislature hereby declares that it would have passed the remaining parts of this act if it had been known that such other part or parts thereof would be declared unconstitutional or invalid.”

Prior Laws.

Former section 42-240, which comprised I.C.,§ 42-240, as added by 1969, ch. 300, § 2, p. 900; am. 1974, ch. 20, § 3, p. 533; am. 1980, ch. 238, § 10, p. 526, was repealed by S.L. 1986, ch. 313, § 6.

Compiler’s Notes.

The words “this act” refer to S.L. 1978, chapter 345, which is compiled as§§ 42-241 to 42-247, 42-1501 to 42-1505, 42-1736B, and 42-1756.

History.

I.C.,§ 42-242, as added by 1978, ch. 345, § 5, p. 884; am. 1990, ch. 319, § 4, p. 870.

Compiler’s Notes.

The words “this act” in the introductory paragraph refer to S.L. 1978, chapter 345, which is compiled as§§ 42-241 to 42-247, 42-1501 to 42-1505, 42-1736B, and 42-1756.

Compiler’s Notes.

This section was formerly compiled as§ 42-225a and was redesignated as§ 42-243 by § 6 of S.L. 1978, ch. 345.

The “s” enclosed in parentheses so appeared in the law as enacted.

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

Compiler’s Notes.

This section was formerly compiled as§ 42-225b and was redesignated as§ 42-244 by § 6 of S.L. 1978, ch. 345.

Amendments.

The 2020 amendment, by ch. 146, deleted “prior to June 30, 1988” following “proceeding commenced” near the end of the second paragraph.

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

Compiler’s Notes.

Section 13 of S.L. 1978, ch. 345 read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid or unconstitutional for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Amendments.

The 2011 amendment, by ch. 172, in subsection (4), substituted “or accompanied by evidence” for “and accompanied by evidence” in the second sentence and added the last sentence.

Compiler’s Notes.

The “s” enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 3 of S.L. 2003, ch. 166 declared an emergency. Approved March 27, 2003.

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation) has been changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

The act forming the basis of this chapter repealed a prior law, 1903, p. 223, § 3, am. 1907, p. 532, § 1, reen. R.C., § 3256; C.S., § 5584.

Constitutionality.

The act does not vest in state engineer (department of water resources) judicial power and is not in conflict with Idaho Const., Art. II, § 1 orIdaho Const., Art. V, § 2. Speer v. Stephenson, 16 Idaho 707, 102 P. 365 (1909).

Subsequent Permit Holders.

Time Limits.

Holders of subsequent permits, on a proper showing, were entitled to judgment in action at law canceling prior permits, when department of reclamation (department of water resources) refused to cancel such permits in a proceeding instituted before it. Clark v. Hansen, 35 Idaho 449, 206 P. 808 (1922). Time Limits.

If work was not commenced within time specified in permit issued by state engineer (department of water resources), or if one fifth of the work was not completed within time therein limited, failure could not be cured by extending time for making proof of the beneficial use of water attempted to be appropriated. Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073 (1915).

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation) has been changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation) has been changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

Due Process.

This provision, that permits shall be recorded in the office of the state engineer (department of water resources) and requiring notice of contest must be sent by registered mail to last known post-office address of all persons shown by the records to have an interest, is sufficient notice and due process. Speer v. Stephenson, 16 Idaho 707, 102 P. 365 (1909).

Compiler’s Notes.

These sections, which comprised 1909, p. 299, §§ 2 to 5; reen. C.L., §§ 3265e to 3265i; C.S., §§ 5588 to 5592; I.C.A.,§§ 41-305 to 41-309, were repealed by S.L. 1980, ch. 238, § 24.

Compiler’s Notes.

“Contestant” changed to “contestee” in second line of this section on authority of Speer v. Stephenson , 16 Idaho 707, 102 P. 365 (1909).

The name of the department of water administration (formerly the department of reclamation) has been changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

Prior Laws.

Former§ 42-311, which comprised 1909, p. 299, § 7; am. 1915, ch. 34, § 2, p. 103; am. 1917, ch. 9, § 1, p. 11; compiled and reen. C.L. § 3265k; C.S., § 5594; I.C.A.§ 41-311; am. 1967, ch. 188, § 1, p. 618; am. 1980, ch. 238, § 12, p. 526, was repealed by S.L. 1986, ch. 313, § 6.

Effective Dates.

Section 6 of S.L. 1994, ch. 450 declared an emergency and provided that this act shall apply to all calls for distribution of water pending at the time of passage and approval. Approved April 11, 1994.

Compiler’s Notes.

This section, which comprised I.C.,§ 42-352, as added by 1986, ch. 313, § 8, p. 763; am. 1988, ch. 83, § 4, p. 143, was repealed by S.L. 1998, ch. 173, § 5, effective July 1. 1998.

Prior Laws.

Former§ 42-401, which comprised 1915, ch. 111, § 1, p. 254; reen. C.L., § 3265n; C.S., § 5595; I.C.A.,§ 41-401; am. 1951, ch. 80, § 1, p. 149, was repealed by S.L. 1990, ch. 141, § 2.

Amendments.

The 2014 amendment, by ch. 245, deleted “transportation and” following “out-of-state” in the second sentence in subsection (1) and deleted “and transport it” following “state of Idaho” near the beginning of subsection (2).

Legislative Intent.

Section 1 of S.L. 1990, ch. 141 read: “It is the intent of the legislature that passage of this act shall not affect existing appropriations of water that are used outside the state of Idaho nor affect the provisions of any interstate compact.”

Compiler’s Notes.

Section 6 of S.L. 1990, ch. 141 read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Decisions Under Prior Law

Interstate Adjudication.

Rights, as between states, to share in the waters of interstate stream, were a matter for adjustment between states, and individual users could not raise question about the use of such water in another state out of the territorial jurisdiction of court. Vineyard Land & Stock Co. v. Twin Falls Salmon River Land & Water Co., 245 F. 9 (9th Cir. 1917).

Priority.

Right obtained by appropriation of water from stream in one state for use on lands in another state was superior to later appropriation in former state for use in former state. Weiland v. Pioneer Irrigation Co., 259 U.S. 498, 42 S. Ct. 568, 66 L. Ed. 1027 (1922).

Am. Jur. 2d.

§ 42-402. Application and permit.

The application for permit and the permit issued thereon as provided in section 42-401[, Idaho Code], shall be in accordance with the laws of the state of Idaho, relative to the filing of application for permit and the obtaining of permit to appropriate the public waters of the state of Idaho.

History.

1915, ch. 111, § 2, p. 254; reen. C.L., § 3265o; C.S., § 5596; I.C.A.,§ 41-402.

Cross References.

Application, hearing, proof of completion and issuance of license,§§ 42-202, 42-203A, and 42-219.

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation) has been changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

The bracketed insertion was added by the compiler to conform to the statutory citation style.

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation) has been changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

The bracketed insertion was added by the compiler to conform to the statutory citation style.

C.J.S.

§ 42-406. Rules and regulations.

The department of water resources is empowered to make such rules and regulations as may be necessary to the proper administration of the provisions of this chapter.

History.

1915, ch. 111, § 6, p. 254; compiled and reen. C.L., § 3265s; C.S., § 5600; I.C.A.,§ 41-406.

Compiler’s Notes.

Section 25 of S.L. 1980, ch. 238 read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Compiler’s Notes.

These sections, which comprised 1915, ch. 111, § 8, p. 254; reen. C.L., § 3265u; 1919, ch. 118, § 1, p. 404; C.S., §§ 5602, 5603; am. 1925, ch. 3, § 1, p. 7; I.C.A.,§§ 41-408, 41-409; 1949, ch. 24, § 1, p. 41; I.C.,§ 42-411, as added by 1970, ch. 89, § 1, p. 217, were repealed by S.L. 1990, ch. 141, § 2.

Prior Laws.

Amendments.

The 2018 amendment, by ch. 320, added the last paragraph in the section.

The 2020 amendment, by ch. 253, added “pursuant to sections 42-222(2) and 42-224, Idaho Code” at the end of the last paragraph.

Effective Dates.

Section 3 of S.L. 2017, ch. 178 declared an emergency. Approved March 27, 2017.

Idaho Law Review.

Idaho Law Review. — Freedom Versus Forage: Balancing Wild Horses and Livestock Grazing on the Public Lands, Mara Hurwitt. 53 Idaho L. Rev. 425 (2017).

Prior Laws.

Former§ 42-502, Revocation of permit, which comprised 1939, ch. 205, § 2, p. 412, was repealed by S.L. 2017, ch. 178, § 1, effective March 27, 2017.

Amendments.

The 2020 amendment, by ch. 253, rewrote the text of the section, which formerly read: “(1) No agency of the federal government, nor any agent acting on its behalf, shall acquire a stockwater right unless the agency owns livestock and puts the water to beneficial use. For purposes of this chapter, ‘stockwater rights’ means water rights for the beneficial use for livestock. (2) For the purposes of this chapter, a permittee on a federally administered grazing allotment shall not be considered an agent of the federal government.”

Effective Dates.

Section 3 of S.L. 2017, ch. 178 declared an emergency. Approved March 27, 2017.

Prior Laws.

Former§ 42-503, Right to file application under general laws, which comprised 1939, ch. 205, § 3, p. 412, was repealed by S.L. 2017, ch. 178, § 1, effective March 27, 2017.

Compiler’s Notes.

Former§ 42-503 was amended and redesignated as§ 42-504 by S.L. 2018, ch. 320, § 3, effective July 1, 2018.

Prior Laws.

Former§ 42-504, Separability, which comprised 1939, ch. 205, § 4, p. 412, was repealed by S.L. 2017, ch. 178, § 1, effective March 27, 2017.

Amendments.

The 2018 amendment, by ch. 320, redesignated the section from§ 42-503 and added “unless otherwise approved by the state of Idaho pursuant to section 42-222, Idaho Code” at the end of the section.

The 2020 amendment, by ch. 253, rewrote the text of the section, which formerly read: “If an agency of the federal government acquires a stockwater right, that stockwater right shall never be utilized for any purpose other than the watering of livestock unless otherwise approved by the state of Idaho pursuant to section 42-222, Idaho Code.”

Compiler’s Notes.

This section was formerly compiled as§ 42-503.

Former§ 42-504 was redesignated as§ 42-505 by S.L. 2018, ch. 320, § 4, effective July 1, 2018.

Effective Dates.

Section 3 of S.L. 2017, ch. 178 declared an emergency. Approved March 27, 2017.

Prior Laws.

Former§ 42-505, Provisions controlling over other acts, which comprised 1939, ch. 205, § 5, p. 412, was repealed by S.L. 2017, ch. 178, § 1, effective March 27, 2017.

Amendments.

The 2018 amendment, by ch. 320, redesignated the section from§ 42-504.

Compiler’s Notes.

This section was formerly compiled as§ 42-504.

Former§ 42-505 was redesignated as§ 42-506 by S.L. 2018, ch. 320, § 5, effective July 1, 2018.

Effective Dates.

Section 3 of S.L. 2017, ch. 178 declared an emergency. Approved March 27, 2017.

Amendments.

The 2018 amendment, by ch. 320, redesignated the section from§ 42-505.

Compiler’s Notes.

This section was formerly compiled as§ 42-505.

Former§ 42-506 was redesignated as§ 42-507 by S.L. 2018, ch. 320, § 6, effective July 1, 2018.

The term “this act” in this section refers to S.L. 2017, Chapter 178, which is codified as§§ 42-501, 42-502, and 42-504 through 42-506.

Effective Dates.

Section 3 of S.L. 2017, ch. 178 declared an emergency. Approved March 27, 2017.

Amendments.

The 2018 amendment, by ch. 320, redesignated the section from§ 42-506.

Compiler’s Notes.

This section was formerly compiled as§ 42-506.

The term “this act” in this section refers to S.L. 2017, Chapter 178, which is codified as§§ 42-501, 42-502, and 42-504 through 42-506.

Effective Dates.

Section 3 of S.L. 2017, ch. 178 declared an emergency. Approved March 27, 2017.

Compiler’s Notes.

This section, which comprised 1903, p. 223, §§ 13, 16; reen. R.C. & C.L., § 3268; C.S., § 5605; I.C.A.,§ 41-501, was repealed by S.L. 1992, ch. 339, § 1.

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation) has been changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

Effective Dates.

Section 6 of S.L. 1994, ch. 450 declared an emergency and provided that this act shall apply to all calls for distribution of water pending at the time of passage and approval. Approved April 11, 1994.

Determination of Time for Use.

Doctrine of Prior Appropriation.

Decree making water user judge of time when water could be used was too broad, as this matter should be determined by department of reclamation (department of water resources) which has immediate direction and control of water distribution. Arkoosh v. Big Wood Canal Co., 48 Idaho 383, 283 P. 522 (1929). Doctrine of Prior Appropriation.

The trial court properly issued a writ of mandate ordering the director of the Idaho department of water resources immediately to comply with this section and distribute water in accordance with the doctrine of prior appropriation. Musser v. Higginson, 125 Idaho 392, 871 P.2d 809 (1994).

Immunity.

In a suit brought by owners of flooded farmland, the state was immune from liability for any decision of the director of the department of water resources in taking measures to protect against failure of a dike; this immunity extended to the flood control district and the chairman, and also to the water district and its watermaster and chairman, since there was no evidence they owned, controlled, operated or maintained or managed the dike. Marty v. State, 117 Idaho 133, 786 P.2d 524 (1989).

Interpreting Decrees.

The doctrine of quasi-estoppel does not preclude the director of the Idaho department of water resources from interpreting partial decrees of the SBRA. Rangen, Inc. v. Idaho Dep’t of Water Res. (In re Distrib. of Water to Water Right Nos. 36-02551 & 36-07694 (Rangen, Inc.) IDWR Docket CM-DC-2011-004), 159 Idaho 798, 367 P.3d 193 (2016).

Priority of Diversion.

Under conjunctive management rule 40.01, when it is found that junior-priority ground water pumping is causing a senior right holder material injury, the director must either: (1) curtail junior-priority ground water pumping to satisfy the senior’s right, or (2) allow out-of-priority diversion of water by junior-priority ground water users, pursuant to a mitigation plan that has been approved by the director. The director must consider whether the mitigation plan provides replacement water supplies or other appropriate compensation to the senior-priority water right, when needed during a time of shortage. Rangen, Inc. v. Idaho Dep’t of Waters Res. (In re Fourth Mitigation Plan), 160 Idaho 251, 371 P.3d 305 (2016).

Review.

Action of commissioner in determining when water may be first beneficially used and in delivering or refusing to deliver water may be reviewed and controlled in such manner, as facts may require, by appropriate action on part of any person deeming himself aggrieved. Arkoosh v. Big Wood Canal Co., 48 Idaho 383, 283 P. 522 (1929).

Subterranean Waters.

Court may retain jurisdiction of cause involving rights to subterranean waters for two years and decree administrative provisions concerning such rights, although this section does not expressly relate to subterranean waters not in a defined stream. Silkey v. Tiegs, 51 Idaho 344, 5 P.2d 1049 (1931).

Cited Public Utils. Comm’n v. Natatorium Co., 36 Idaho 287, 211 P. 533 (1922); Almo Water Co. v. Darrington, 95 Idaho 16, 501 P.2d 700 (1972). RESEARCH REFERENCES

C.J.S.

Compiler’s Notes.

This section, which comprised I.C.,§ 42-602A, as added by 1977, ch. 246, § 1, p. 723, was repealed by S.L. 1992, ch. 339, § 3.

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation) has been changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

Administrative Rules.

To the extent that the district court engaged in an “as applied” analysis of the Rules for Conjunctive Management of Surface and Ground Water Resources (CM Rules), it was in error, as administrative remedies had not been exhausted. Am. Falls Reservoir Dist. No. 2 v. Idaho Dep’t of Water Res., 143 Idaho 862, 154 P.3d 433 (2007).

As the Rules for Conjunctive Management of Surface and Ground Water Resources (CM Rules) specifically incorporated Idaho law, the failure to recite certain burdens and evidentiary standards, set specific timelines and set objective standards did not make them facially unconstitutional. The CM Rules also survive a facial challenge in the recognition given to partial decrees and in the treatment of carryover water. Am. Falls Reservoir Dist. No. 2 v. Idaho Dep’t of Water Res., 143 Idaho 862, 154 P.3d 433 (2007).

Management Plan.

Priority of Diversion.

The director of the Idaho department of water resources may develop and implement a pre-season management plan for allocation of water resources that employs a baseline methodology, which methodology must comport in all respects with the requirements of Idaho’s prior appropriation doctrine, be made available in advance of the applicable irrigation season, and be promptly updated to take into account changing conditions. A senior right holder may initiate a delivery call based on allegations that specified provisions of the management plan will cause it material injury. The party making the call shall specify the respects in which the management plan results in injury to the party. While factual evidence supporting the plan may be considered, along with other evidence in making a determination with regard to the call, the plan by itself shall have no determinative role. Junior right holders affected by the delivery call may respond thereto and shall bear the burden of proving, by clear and convincing evidence, that the call would be futile or is otherwise unfounded. A determination of the call shall be made by the director of the Idaho department of water resources in a timely and expeditious manner, based on the evidence in the record and the applicable presumptions and burdens of proof. A&B Irrigation Dist. v. Spackman (In re A&B Irrigation Dist.), 155 Idaho 640, 315 P.3d 828 (2013). Priority of Diversion.

Under conjunctive management rule 40.01, when it is found that junior-priority ground water pumping is causing a senior right holder material injury, the director must either: (1) curtail junior-priority ground water pumping to satisfy the senior’s right, or (2) allow out-of-priority diversion of water by junior-priority ground water users, pursuant to a mitigation plan that has been approved by the director. The director must consider whether the mitigation plan provides replacement water supplies or other appropriate compensation to the senior-priority water right, when needed during a time of shortage. Rangen, Inc. v. Idaho Dep’t of Waters Res. (In re Fourth Mitigation Plan), 160 Idaho 251, 371 P.3d 305 (2016).

Instruments of State.

State water districts are instrumentalities of the state that exist for the purpose of assisting the Idaho department of water resources in carrying out its duty under this section to provide for the distribution of the public waters of the state in accordance with rights of prior appropriation.OAG 91-7.

Permanency.

The term of existence of Water District 1 as an administrative and geographic unit is continuous from its date of creation until dissolved by order of the director, and it is active year-round.OAG 91-7.

Cross References.

Appointment of watermaster by owner of ditch, canal, or lateral,§ 42-901.

Compensation: Allotment and charge against land and canals,§ 42-610; Budget of water district, and district expenses,§§ 42-612 to 42-619.

Amendments.

The 2006 amendment, by ch. 146, in subsection (2), substituted “at least twenty-one (21) days prior to the meeting date, send notification” for “between January first and February first of each year, notify”, substituted “fourteen (14)” for “thirty (30)” and “thirty (30)” for “sixty (60)” in the fourth sentence, and substituted “twenty-one (21)” for “thirty (30)” in the fifth sentence; and in subsection (11), substituted “subsection (2) of this section, provided however, that a special meeting notice shall be sent at least fourteen (14) days prior to the meeting date” for “section 42-605(2), Idaho Code” at the end.

The 2011 amendment, by ch. 176, in subsection (10), inserted “to” following “and subscribe” in the first sentence and added the last sentence.

This section was amended by two 2013 acts which appear to be compatible and have been compiled together.

The 2013 amendment, by ch. 42, in subsection (10), added the last sentence in the introductory paragraph and added paragraphs (a) and (b).

The 2013 amendment, by ch. 327, in subsection (3), split the subsection into two sentences, inserting “Notwithstanding any personnel classification assigned to the watermaster and assistants pursuant to the provisions of chapter 53, title 67, Idaho Code” at the beginning of the second.

The 2015 amendment, by ch. 82, inserted “administration of the water district and enhancement of water supplies” in subsection (12) and added subsection (13).

The 2018 amendment, by ch. 40, rewrote this section, lengthening the period of time in which state water districts can hold annual meetings and clarifying that absentee and proxy voting are prohibited.

The 2020 amendment, by ch. 52, in subsection (1), deleted “all” preceding “persons owning” near the beginning and inserted “that is assessed or proposed to be assessed by such district” near the end; in subsection (2), substituted “that are assessed or proposed to be assessed by” for “to the use of the waters of” near the middle of the second sentence, added “or on the department of water resources website” at the end of the third sentence, inserted “in a newspaper or newspapers” near the beginning of the fourth sentence, added the present fifth sentence, and deleted “in which case the director shall send notification at least twenty-one (21) days prior to said meeting date” at the end of the sixth sentence; in subsection (4), substituted “present who owns or has” for “present, owning, or having” and inserted “that is assessed or proposed to be assessed by such district” near the beginning of the last sentence, and substituted “section 42-613(3) or 42-619, Idaho Code” for “section 42-618(3) or 42-619, Idaho Code” near the end of the second sentence in subsection (5).

Effective Dates.

Section 2 of S.L. 1982, ch. 14 declared an emergency. Approved February 26, 1982.

Immunity.

In a suit brought by owners of flooded farmland, the state was immune from liability for any decision of the director of the department of water resources in taking measures to protect against failure of a dike; this immunity extended to the flood control district and the chairman, and also to the water district and its watermaster and chairman since there was no evidence they owned, controlled, operated or maintained or managed the dike. Marty v. State, 117 Idaho 133, 786 P.2d 524 (1989).

Jurisdiction of Watermaster.

The 1969 amendment to this section defining a water right as “any water right which has been adjudicated by the court or is represented by valid permit or license issued by the department of reclamation” (department of water resources) delineates the jurisdiction and control of the watermaster of a water district. DeRousse v. Higginson, 95 Idaho 173, 505 P.2d 321 (1973). (Decision prior to 1973 amendment.).

Liability for Watermaster’s Acts.

Water company was no more responsible for acts of watermaster than any water user of system, so long as it did not aid, abet or ratify his acts. Bailey v. Idaho Irrigation Co., 39 Idaho 354, 227 P. 1055 (1924).

Nature of Office.

Watermaster is not an agent of water company or water user, but is a ministerial officer. Bailey v. Idaho Irrigation Co., 39 Idaho 354, 227 P. 1055 (1924).

Watermaster is a public administrative officer and holds office until his successor is elected or appointed and qualified. Big Wood Canal Co. v. Chapman, 45 Idaho 380, 263 P. 45 (1927).

Power of Commissioner.

Commissioner of reclamation (director of the department of water resources) had no power to determine legality of election of watermaster and appoint another in his place. Whitten v. Chapman, 45 Idaho 653, 264 P. 871 (1928).

Suit against Watermaster.

In suit against watermaster to adjudicate the rights of water users of certain wells, proceedings were not binding on users not made parties thereto. Owsley Canal Co. v. Henninger, 66 Idaho 485, 162 P.2d 389 (1945).

Voting Rights.

Each person or corporation with right equal to ten inches of water was entitled to one vote for every ten inches thus possessed and not to one vote only for his entire holdings. Whitten v. Chapman, 45 Idaho 653, 264 P. 871 (1928).

Corporation is person and may properly designate someone to cast its vote, based on whole number of inches of water to which it is entitled. Whitten v. Chapman, 45 Idaho 653, 264 P. 871 (1928).

District Funds.

Idaho law provides four alternative methods for the collection and disbursement of water district funds: (1) the county auditor and treasurer may collect and disburse the assessments; (2) the county auditor and treasurer may collect the assessments, and the water district treasurer may hold and disburse the water district funds; (3) the watermaster may collect the assessments, and the county treasurer may hold and disburse the assessments; (4) the watermaster may collect the funds, and the water district treasurer may hold and disburse the assessments; Idaho law does not permit the watermaster to act as treasurer for a water district, thus, Water District 1’s present practice of allowing the watermaster to also serve as treasurer is not permissible.OAG 91-7.

Officers.

The current officers of Water District 1 are the chairman and secretary whose primary duties are (1) presiding over the annual meeting of the district, (2) transmitting a certified copy of the budget to the Idaho department of water resources (IDWR) and the county auditor in some circumstances, and (3) preparing, maintaining and transmitting the minutes of the meeting to the IDWR; the daily business activities of the district are transacted by a watermaster elected by the water users and appointed by the director and the watermaster of Water District 1 presently serves as treasurer.OAG 91-7.

Amendments.

The 2020 amendment, by ch. 52, substituted “section 42-613, Idaho Code” for “section 42-613 or 42-618, Idaho Code” near the end of the second sentence in subsection (5).

Amendments.

The 2020 amendment, by ch. 52, substituted “volume” for “amount” twice in the second sentence and rewrote the third sentence, which formerly read: “Such report shall also include records of stream flow the watermaster used or made in the process of distributing water supplies.”

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation) has been changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

Amendments.

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation) has been changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

Effective Dates.

Section 3 of S.L. 1973, ch. 262 declared an emergency. Approved March 16, 1973.

Abandonment of Priority.

The right of priority to water in time of shortage, given under this section, may be abandoned. Graham v. Leek, 65 Idaho 279, 144 P.2d 475 (1944).

Constitutionality.

Although this section does not provide for notice and hearing prior to the shutting off of unadjudicated water rights, it is not in violation of procedural due process, since the need to restrict the use of water in times of shortage constitutes an extraordinary circumstance where valid governmental interest justifies the postponement of notice and hearing. Nettleton v. Higginson, 98 Idaho 87, 558 P.2d 1048 (1977).

Since private water rights cannot be adequately protected unless the watermaster has specific record of the users’ priority dates, use and points of diversion through adjudication of licensing, the preference granted to users with adjudicated or licensed rights by this section does not constitute an unconstitutional denial of equal protection to users with unadjudicated “constitutional use” water rights. Nettleton v. Higginson, 98 Idaho 87, 558 P.2d 1048 (1977).

Constitutional Use Water Right.

Construction.

One in possession of an unadjudicated constitutional use water right may have this right adjudicated at any time pursuant to§ 42-1405 and thereby acquire the protection of this section. Nettleton v. Higginson, 98 Idaho 87, 558 P.2d 1048 (1977). Construction.

This section is intended to make the watermaster’s authority more certain, duties less difficult, and decisions less controversial; however, this section does not apply outside its own language to subordinate constitutional water rights for all purposes, it does not authorize one water user unilaterally to interfere with another’s superior rights, and it is not applicable to private disputes. R.T. Nahas Co. v. Hulet, 114 Idaho 23, 752 P.2d 625 (Ct. App. 1988).

Decree Governs Watermaster.

Watermaster could not be required to go beyond provisions of decree to ascertain whether or not the same was supported by findings or whether there was a conflict between the findings and decree, but he could look only to the decree for his instructions as to the amount of water to be distributed to each claimant. Stethem v. Skinner, 11 Idaho 374, 82 P. 451 (1905).

Landowners Outside District.

Only method by which owners of land lying outside the boundaries of an irrigation district could be entitled to use the waters or to acquire an interest in the district’s water was by annexation to the district itself. Jones v. Big Lost River Irrigation Dist., 93 Idaho 227, 459 P.2d 1009 (1969).

Loss of Right by Estoppel.

Holders of water rights are entitled to presume that a watermaster, who is authorized to distribute water only in compliance with applicable decrees, is delivering water to them in compliance with the priorities expressed in the governing decree, and unless holder of water right was aware that he was not receiving water from the watermaster in accordance with his decreed right, that right could not be lost through estoppel, the element of knowing acquiescence being lacking. Almo Water Co. v. Darrington, 95 Idaho 16, 501 P.2d 700 (1972).

Loss of Rights Through Forfeiture.

This section applies only to loss of water rights through adverse possession and does not affect the potential loss of water rights through forfeiture or abandonment. Olson v. Bedke, 97 Idaho 825, 555 P.2d 156 (1976).

Preference During Scarcity.

Where water rights of parties have been adjudicated, it is duty of watermaster during scarcity of water to treat unadjudicated rights as inferior and subordinate to decreed rights. Big Wood Canal Co. v. Chapman, 45 Idaho 380, 263 P. 45 (1927); State v. Hall, 90 Idaho 478, 413 P.2d 685 (1966).

Since the right of appropriation does not carry with it an unconditional guarantee of water regardless of the supply of water available, the fact that the diversion belonging to a holder of an appropriated constitutional use water right must be shut off to allow those with priority to receive water does not justify a contention that private property has been taken for public use without just compensation contrary toIdaho Const., Art. I, § 14. Nettleton v. Higginson, 98 Idaho 87, 558 P.2d 1048 (1977).

Preferential Use Not Adverse.

Distribution of water to decreed rights in time of scarcity was not adverse but permissive use based upon watermaster’s statutory duty to give preference. Big Wood Canal Co. v. Chapman, 45 Idaho 380, 263 P. 45 (1927).

Status of Watermaster.

A watermaster is an administrative officer and has no interest in the subject of litigation involving the water under his control. Nampa & Meridian Irrigation Dist. v. Barclay, 56 Idaho 13, 47 P.2d 916 (1935).

The watermaster is not the agent of the water company or water user, but is a ministerial officer. Jones v. Big Lost River Irrigation Dist., 93 Idaho 227, 459 P.2d 1009 (1969).

Unadjudicated Water Rights.

The 1969 amendment to this section deleting the preference of adjudicated water rights over unadjudicated water rights in times of water scarcity divested the watermaster of control and jurisdiction over unadjudicated water rights, and state reclamation engineer (now the director of department of water resources) and watermaster were properly enjoined from interfering with water diversion by plaintiff who claimed water right by constitutional appropriation. DeRousse v. Higginson, 95 Idaho 173, 505 P.2d 321 (1973) (Decision prior to 1973 amendment.).

Watermaster’s Duties.

His only duty is to distribute the waters of his district in accordance with the respective rights of appropriators, adjudicated rights having preference over unadjudicated rights. Nampa & Meridian Irrigation Dist. v. Barclay, 56 Idaho 13, 47 P.2d 916 (1935).

The watermaster’s duties are to determine decrees, regulate flow of streams and transfer the water of decreed rights to the appropriate diversion points. Jones v. Big Lost River Irrigation Dist., 93 Idaho 227, 459 P.2d 1009 (1969).

This section does not alter the doctrine of prior appropriation as applied to private water right disputes; rather, it governs the duties of the watermaster. R.T. Nahas Co. v. Hulet, 114 Idaho 23, 752 P.2d 625 (Ct. App. 1988).

Idaho Law Review.

Idaho Law Review. — Understanding the 1984 Swan Falls Settlement, Clive J. Strong & Michael C. Orr. 52 Idaho L. Rev. 223 (2016).

C.J.S.

§ 42-608. Watermaster’s term of service.

1. The director of the department of water resources, upon receipt of a certified copy of the meeting minutes and the oath of the watermaster as provided for in section 42-605, Idaho Code, shall appoint the watermaster to a term of service throughout the year, extending until the annual meeting for the ensuing year, or until a successor is appointed. A full-year appointment of the watermaster by the director shall have no effect on the watermaster’s compensation fixed by the water users at the annual water district meeting as provided for in section 42-605, Idaho Code.
2. A watermaster shall not begin work for the distribution and control of water required under section 42-607, Idaho Code, until called upon by one (1) or more owners or managers of ditches or persons controlling ditches or other diversion facilities in the district stating that there is a necessity for the distribution and control of the waters of the district. In the absence of a call by one (1) or more water users, the watermaster may be called upon to assume the watermaster’s duties at any time the department of water resources finds that there is a necessity for the distribution and control of the waters of the district.
3. The watermaster shall not continue performing services for the distribution and control of water after the necessity shall cease, which shall be determined by the department of water resources, and which shall not be after the first of November of each year, unless determined necessary by the department of water resources, or is otherwise provided by a resolution adopted at the annual water users’ meeting for the water district, or upon receipt of a petition requesting an extension of the watermaster’s services for the distribution and control of water in any year from the holder of a water right authorizing the diversion or storage of water during the time period for which the extension is sought and upon a determination of necessity for the diversion or storage of water. Payment for watermaster services during the extension shall be the responsibility of the holders of water rights delivered by the watermaster during the extension. For the purpose of determining voting rights at a water district meeting, amounts paid for watermaster services pursuant to this subsection shall be included in the calculation of annual assessment amounts and assessment rates under sections 42-605 and 42-605A, Idaho Code.
4. At any annual meeting the water users may, by resolution, provide that the watermaster shall serve throughout the year, or for a set term during each year, for purposes of distribution and control as provided in section 42-607, Idaho Code.

History.

1903, p. 223, § 27; reen. R.C., § 3278; am. 1909, p. 326, § 1; am. 1915, ch. 34, § 13, p. 103; reen. C.L., § 3278; C.S., § 5612; am. 1927, ch. 63, § 3, p. 78; I.C.A.,§ 41-508; am. 1939, ch. 199, § 1, p. 378; am. 1991, ch. 101, § 3, p. 225; am. 1992, ch. 339, § 10, p. 1014; am. 2011, ch. 176, § 2, p. 498.

Amendments.

The 2011 amendment, by ch. 176, rewrote the section to the extent that a detailed comparison is impracticable.

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation) has been changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and 1974, ch. 20, § 28 (§ 42-1801a).

Effective Dates.

Section 4 of S.L. 1991, ch. 101 declared an emergency. Approved March 27, 1991.

Construction.

This provision is mandatory and watermaster could not recover for services as such watermaster unless services were rendered after written application had been presented to him. Walker v. Elmore County, 16 Idaho 696, 102 P. 389 (1909).

Watermaster is paid per diem compensation. Big Wood Canal Co. v. Chapman, 45 Idaho 380, 263 P. 45 (1927).

Term of Office.

This section does not expressly fix term of office of watermaster but he holds office until his successor is elected or appointed and has qualified. Big Wood Canal Co. v. Chapman, 45 Idaho 380, 263 P. 45 (1927).

Effective Dates.

Section 5 of S.L. 1927, ch. 63 declared an emergency.

Cross References.

Compensation fixed by election at district meeting or by department of water resources,§ 42-605.

Compensation of watermaster appointed by court,§ 42-901.

Amendments.

The 2020 amendment, by ch. 52, rewrote the section to the extent that a detailed comparison is impracticable.

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation) has been changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

Assessment of Compensation.

Portion of judgment which required direct assessment of costs of watermaster against defendant in order to discourage future interference with plaintiff’s water rights was premature and inappropriate; while plaintiff might have an action against defendant for those costs, the costs must first be assessed against plaintiff. R.T. Nahas Co. v. Hulet, 106 Idaho 37, 674 P.2d 1036 (Ct. App. 1983), modified on other grounds, 114 Idaho 23, 752 P.2d 625 (Ct. App. 1988).

Compiler’s Notes.

This section, which comprised 1903, p. 223, § 30; am. R.C. & C.L., § 3281; C.S., § 5615; I.C.A.,§ 41-511, was repealed by S.L. 1989, ch. 286, § 1.

Amendments.

The 2014 amendment, by ch. 65, substituted “exceed two hundred fifty dollars ($250.00)” for “exceed fifty dollars ($50.00)” in the second sentence of subsection (4).

The 2015 amendment, by ch. 82, added the last sentence in subsection (2).

The 2020 amendment, by ch. 52, rewrote the section heading, which formerly read: “Budget of water district — Adoption and contents — Debt of water user”; added present subsection (1) and redesignated the existing subsections accordingly; rewrote subsection (4), which formerly read: “The budget shall show the aggregate amount to be collected from all the water users in the district, and the amount to be paid by each ditch, canal company, irrigation district or other water user. For the purpose of computing the respective amounts to be paid by each water user, the water delivered to the various ditches, canal companies, irrigation districts or other users during the past season or seasons, not exceeding five (5) seasons, shall be used as a basis”; and substituted “water delivery organization” for “ditch, canal company, irrigation district” near the beginning of the first sentence and near the end of the last sentence in subsection (5).

Cross References.

Claims against counties,§ 31-1501 et seq.

Director of department of water resources,§ 42-1801 et seq.

Prior Laws.

Former§ 42-613, Budget — Collection — Payment of district expenses, which comprised C.S., § 5615-A, 2d & 3d par., as added by 1927, ch. 39, § 1, p. 51; I.C.A.,§ 41-513; am. 1992, ch. 339, § 14, p. 1014; am. 2000, ch. 83, § 2, p. 173, was repealed by S.L. 2020, ch. 52, § 7, effective July 1, 2020.

District Funds.

Idaho law provides four alternative methods for the collection and disbursement of water district funds: (1) the county auditor and treasurer may collect and disburse the assessments; (2) the county auditor and treasurer may collect the assessments, and the water district treasurer may hold and disburse the water district funds; (3) the watermaster may collect the assessments, and the county treasurer may hold and disburse the assessments; (4) the watermaster may collect the funds, and the water district treasurer may hold and disburse the assessments; Idaho law does not permit the watermaster to act as treasurer for a water district, thus, Water District 1’s present practice of allowing the watermaster to also serve as treasurer is not permissible.OAG 91-7.

Cross References.

Public depository law,§ 57-101 et seq.

Water resource board,§ 42-1701 et seq.

Water Bank Funds.

This section does not vest in the local committee of a water district any responsibilities regarding the collection, investment, or disbursement of water bank funds; the water district retains authority over water bank funds.OAG 91-7.

Compiler’s Notes.

This section, which comprised C.S., § 5615-A, 4th par., as added by 1927, ch. 39, § 1, p. 51; I.C.A.,§ 41-514; am. 1937, ch. 24, § 1, p. 33; am. 1939, ch. 199, § 2, p. 378, was repealed by S.L. 1992, ch. 339, § 16.

Effective Dates.

Section 2 of S.L. 1927, ch. 39 declared an emergency.

Amendments.

The 2011 amendment, by ch. 176, added the last sentence in subsection (4); added “as provided by section 42-605(9), Idaho Code” at the end of subsection (5); and twice substituted “seven thousand five hundred dollars ($7,500)” for “three thousand dollars ($3,000)” in subsection (11).

Compiler’s Notes.

The 2020 amendment, by ch. 52, added “Treasurer — Election — Oath and Bond — Removal — Compensation” to the end of the section heading; substituted “section 42-613(2), Idaho Code” for “section 42-613, Idaho Code” near the beginning of subsection (1); in subsection (3), in the first sentence, inserted “or for which the water users have taken the action provided for in section 42-613(2), Idaho Code” near the beginning and substituted “election and appointment” for “election or appointment” near the end, in the second sentence, substituted “resources is authorized to” for “resources shall” near the end and added “and fix the treasurer’s compensation” at the end; substituted “section 42-613(3), Idaho Code” for “in subsection (10) of this section and have notified the county thereof” near the beginning of subsection (7); substituted “shall disburse moneys from the water district account only” for “shall only disburse moneys from the water district account” near the beginning of subsection (8); deleted former subsection (10), which read: “In any water district for which the county commissioners have not taken the action provided for in subsection (1) of this section, the water users may at the annual meeting of the district approve a resolution authorizing the election or appointment of a water district treasurer who shall exercise all duties and responsibilities of a treasurer provided for in this section”; and redesignated former subsection (11) as present subsection (10). Compiler’s Notes.

The bracketed insertion in the first sentence in subsection (7) was added by the compiler, as an extra comma was left in that sentence by the 2020 amendment of this section.

District Funds.

Idaho law provides four alternative methods for the collection and disbursement of water district funds: (1) the county auditor and treasurer may collect and disburse the assessments; (2) the county auditor and treasurer may collect the assessments, and the water district treasurer may hold and disburse the water district funds; (3) the watermaster may collect the assessments, and the county treasurer may hold and disburse the assessments; (4) the watermaster may collect the funds, and the water district treasurer may hold and disburse the assessments; Idaho law does not permit the watermaster to act as treasurer for a water district, thus, Water District 1’s present practice of allowing the watermaster to also serve as treasurer is not permissible.OAG 91-7.

The watermaster of Water District 1 should not have custody of the funds of Water District 1 and assuming Water District 1 has elected to follow this section, a district treasurer should be elected to have custody of Water District 1 funds and to make disbursements from these funds; the district treasurer is prohibited by the provisions of the Public Depository Law from investing any district funds in common stocks, corporate bonds, mutual funds and other types of equity securities.OAG 91-7.

Compiler’s Notes.

This section, which comprised I.C.,§ 42-620, as added by 2005, ch. 363, § 1, p. 1151; am. 2007, ch. 204, § 1, p. 627, was repealed by S.L. 2008, ch. 134, § 1.

Cross References.

Distributor of water under fixed annual charge, water companies to furnish headgates and measuring devices,§ 42-903.

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation), was changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

Effective Dates.

Section 3 of 1994, ch. 430, declared an emergency. Approved April 7, 1994.

Section 8 of S.L. 1997, ch. 374 declared an emergency. Approved March 24, 1997.

Requirement as Permit Condition.

The director of the Idaho department of water resources was authorized to require that a permittee maintain a measuring device as a condition for granting an amendment to a water permit. Hardy v. Higginson, 123 Idaho 485, 849 P.2d 946 (1993).

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation) was changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation) was changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

Compiler’s Notes.

This section, which comprised 1927, ch. 69, § 3, p. 85; I.C.A.,§ 41-604, was repealed by S.L. 1995, ch. 291, § 2, effective March 21, 1995.

Effective Dates.

Section 10 of S.L. 1996, ch. 298 declared an emergency. Approved March 18, 1996.

Legislative Intent.

Section 4 of S.L. 1995, ch. 291 read: “Statement of Legislative Intent. It is the intent of the legislature of the State of Idaho that the Director of the Department of Water Resources exercise the authority provided under Chapter 7, Title 42, Idaho Code, to create water measurement districts within the Eastern Snake River Plain Aquifer area in a timely manner to assure that water diverted from public water sources is measured and reported to the Department of Water Resources in accordance with the provisions of the chapter to be used in the management of water resources of the State.”

Effective Dates.

Section 5 of S.L. 1995, ch. 291 declared an emergency. Approved March 21, 1995.

Constitutional Right.

Dams.

Idaho Const., Art. XV, § 3, providing that right to appropriate unappropriated waters of a natural stream to a beneficial use shall never be denied, applies to right to use of such stream as highway to carry storage water from a reservoir. Twin Falls Canal Co. v. American Falls Reservoir Dist. No. 2, 49 F.2d 632 (D. Idaho 1931), cert. denied, 287 U.S. 638, 53 S. Ct. 87, 77 L. Ed. 552 (1932). Dams.

Where plaintiff constructed a dam which resulted in the backing up of water to height which others could utilize, he could not compel reservoir district, diverting storage water from such stream, to contribute to the initial cost of constructing dam. Twin Falls Canal Co. v. American Falls Reservoir Dist. No. 2, 49 F.2d 632 (D. Idaho 1931), cert. denied, 287 U.S. 638, 53 S. Ct. 87, 77 L. Ed. 552 (1932).

Fluctuating Flow of River.

An easement which granted a power company the right to fluctuate the flow of a river would be construed as granting something in addition to the right of the power company to fill completely the natural channel of the river, since the power company had the latter right without the aid of an easement. Griffeth v. Utah Power & Light Co., 226 F.2d 661 (9th Cir. 1955).

Right to Use Channel.

Where defendant built a series of dams that increased the flow of a river to such extent that plaintiff’s access to his farm land was obstructed and plaintiff sought to recover damages on the theory that the dams constituted a nuisance, court held that, by statute, defendant and other appropriators of water for lawful purposes had right to use channel of natural streams for carrying stored water or water diverted from other streams. Johnson v. Utah Power & Light Co., 215 F.2d 814 (9th Cir. 1954).

The current of a river cannot be appropriated by a riparian proprietor in Idaho, even assuming the possible persistence in that state of the doctrine of riparian rights, in view of statutes declaring the right of appropriators of water for irrigation or other lawful purpose to use the channel of natural streams for carrying stored water or water diverted from other streams. Johnson v. Utah Power & Light Co., 215 F.2d 814 (9th Cir. 1954).

Cross References.

Election of watermaster in water districts,§ 42-605.

Fish and game laws, arrest of violators authorized,§ 36-1301.

Compiler’s Notes.

The bracketed number “6” near the end of the section was inserted by the compiler to correct the statutory reference.

Construction.

Phrase “cuts any ditch or the banks thereof”, as contemplated in this section, means cutting through the bank of the ditch; hence, because landowners did not cut into the irrigation district’s lateral, which ran in an easement over the landowners’ property, the district was not entitled to treble damages for the landowners’ interference with the easement. Nampa & Meridian Irrigation Dist. v. Mussell, 139 Idaho 28, 72 P.3d 868 (2003).

Because the treble damage award provided in this section is intended as a penalty, the statute must be strictly construed. Nampa & Meridian Irrigation Dist. v. Mussell, 139 Idaho 28, 72 P.3d 868 (2003).

Cross References.

Appropriators and users of public waters to maintain headgates and measuring devices,§ 42-701.

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation) has been changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

The words enclosed in parentheses so appeared in the law as enacted.

Classification by Board.

Board must classify land as the best it can under such evidence it has or may be able to obtain and in accordance with law. Brose v. Board of Dirs., 24 Idaho 116, 132 P. 799 (1913).

Constitutionality.

This section does not contraveneIdaho Const., Art. V, §§ 3, 5. Brose v. Board of Dirs., 20 Idaho 281, 118 P. 504 (1911).

Effect on Rights of Water Users.

Any classification made by irrigation company under provisions of this section could in no way affect or control question of priorities between users, and in no way prohibited or limited any user of water in having question of priority between users settled and adjudicated in proper court of state. Brose v. Board of Dirs., 20 Idaho 281, 118 P. 504 (1911).

Canal company was not given right to ultimately decide question of priority as between water users as that power remains with court, and adjustment of land into classes was not permanent unless water users decided so. Brose v. Board of Dirs., 24 Idaho 116, 132 P. 799 (1913).

Judicial Determination of Priority.

Priority in Use.

A decree determining the priority of use of water in an irrigation canal did not affect appropriators who were not made parties thereto. Scott v. Nampa Meridian Irrigation Dist., 55 Idaho 672, 45 P.2d 1062 (1934). Priority in Use.

As between the various classes of users, their rights would appear to be governed by the doctrine that priority in use, or first in time of use, gives superiority of right under the statutory system of distribution governing irrigation districts. Scott v. Nampa Meridian Irrigation Dist., 55 Idaho 672, 45 P.2d 1062 (1934).

Where the owners of the original lands of an irrigation district had acquired and, for many years, applied to the irrigation of their lands valuable water rights which had become appurtenant and dedicated to their lands and which were held in trust by the district for their use, they could not, without their consent, upon the annexation of new lands to the district, be deprived of that water when needed to irrigate their lands. Bradshaw v. Milner Low Lift Irrigation Dist., 85 Idaho 528, 381 P.2d 440 (1963).

C.J.S.

§ 42-905. Point of delivery.

Any person, association or corporation which may contract to deliver a certain quantity of water to any party or parties, shall deliver the same to such party or parties, together with a reasonable and necessary allowance for loss by evaporation and seepage, at some convenient point on the main ditch, canal or reservoir of said person, association or corporation, or on any branch or lateral thereof belonging to the owner or owners of such ditch, canal or reservoir.

History.

1895, p. 174, part of § 17; reen. R.C. & C.L., § 3288; C.S., § 5630; I.C.A.,§ 41-805.

Cross References.

Duties of consumers,§§ 42-907, 42-908.

Community Ditch.

There is no law making company furnishing water responsible for its distribution among users through community ditch and thus when it has turned into such ditch aggregate amount of water required, its responsibility is ended. Preis v. Idaho Irrigation Co., 37 Idaho 109, 215 P. 466 (1923).

Construction.

This and following sections clearly authorize parties to contract with reference to delivery of water from reservoir or canal and to fix and determine amount to be charged as an annual maintenance fee therefor. Jackson v. Indian Creek Reservoir Ditch & Irrigation Co., 16 Idaho 430, 101 P. 814 (1909).

A company may use canal it does not own, provided it has a lawful right to use it. Dukes v. Canyon Hill Ditch Co., 38 Idaho 696, 224 P. 85 (1924).

Duty of Canal Company.

Rights of Water Users.

It was the duty of canal company to keep its ditches and canals in repair and to turn water for consumer out of its main canal or lateral at such place as would be most convenient for consumer and cause least waste by seepage and evaporation. Niday v. Barker, 16 Idaho 73, 101 P. 254 (1909). Rights of Water Users.

Water users were entitled to organize and provide for transfer of management of laterals owned by them to a ditch company pursuant to a unilateral agreement signed by the majority of the water users. Hale v. McCammon Ditch Co., 72 Idaho 478, 244 P.2d 151 (1951).

Cross References.

Land mortgaged to secure state endowment funds,§ 43-2007.

Alternative Remedy.

For user’s default in payment of maintenance, water company may have proceeded either under this section or under§ 42-101. Adams v. Twin Falls-Oakley Land & Water Co., 29 Idaho 357, 161 P. 322 (1916); Blaine County Canal Co. v. Hansen, 49 Idaho 649, 292 P. 240 (1930).

Construction.

This section clearly authorizes parties to contract with reference to the delivery of water and to fix and determine amount to be charged as an annual maintenance fee therefor. Jackson v. Indian Creek Reservoir Ditch & Irrigation Co., 16 Idaho 430, 101 P. 814 (1909).

Maintenance Charges.

Preferential Rate.

Maintenance charges may be recovered in action in quantum meruit. Blaine County Canal Co. v. Hansen, 49 Idaho 649, 292 P. 240 (1930). Preferential Rate.

Canal company, not a common carrier, may allow a valid preferential maintenance rate. Nampa & Meridian Irrigation Dist. v. Briggs, 27 Idaho 84, 147 P. 75 (1915).

Unpaid Assessments.

This section provides remedy for unpaid assessments by foreclosure of lien on premises as this furnishes ample protection and works no injustice to user of water. Reynolds v. North Side Canal Co., 36 Idaho 622, 213 P. 344 (1923).

Cross References.

Appointment by district watermaster or directors of irrigation district,§ 42-909.

Duties of manager,§ 42-910.

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation) has been changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

The bracketed insertion in the second sentence was added by the compiler to conform to the statutory citation style.

Construction.

Viewing provisions of this section in connection with other sections of chapter, it would seem that purpose of legislature was simply to provide means of insuring equitable distribution of water received through community ditch and enforcing payment by each user of his part of expenses necessarily incurred. Preis v. Idaho Irrigation Co., 37 Idaho 109, 215 P. 466 (1923).

Where water users fail to select watermaster, company was not liable for unfair distribution of water from community ditch, although it had not delivered the full amount of water contracted for. Preis v. Idaho Irrigation Co., 37 Idaho 109, 215 P. 466 (1923).

Construction of Prior Decree.

Since this statute was enacted subsequent to decree as to water rights, it could not be considered as controlling in construing that decree, and the decree should have been construed in the light of the facts in the case and the law as it existed when the decree was entered. Anderson v. Dewey, 82 Idaho 173, 350 P.2d 734 (1960).

Costs of Repair and Maintenance.

If the servient estate landowner’s use of irrigation ditch had increased the cost of repairs and maintenance, he would have been responsible for the additional costs; but since his use did not increase those costs, he had no obligation to pay for any portion of those costs. Sellers v. Powell, 120 Idaho 250, 815 P.2d 448 (1991).

Effect of Failure to Appoint.

Failure of plaintiff to select watermaster for ditches used by himself and others jointly was not ground upon which motion for nonsuit could be sustained in action against water company for failure to deliver water. Preis v. Idaho Irrigation Co., 37 Idaho 109, 215 P. 466 (1923); Meservy v. Idaho Irrigation Co., 37 Idaho 227, 217 P. 595 (1923).

Nature of Office.

Manager of distributing lateral is not public officer in any sense of term. He gives no bond and takes no oath, nor is he paid from public treasury. Carter v. Niday, 46 Idaho 505, 269 P. 91 (1928).

Rights of Water Users.

Water users were entitled to organize and provide for transfer of management of laterals owned by them to a ditch company pursuant to a unilateral agreement signed by the majority of the water users. Hale v. McCammon Ditch Co., 72 Idaho 478, 244 P.2d 151 (1951).

Compiler’s Notes.

The bracketed insertions were added in two places by the compiler to conform to the statutory citation style.

Water Decree Prior to Statute.

Since this statute was enacted subsequent to decree as to water rights, it could not be considered as controlling in construing that decree, as the decree is to be construed in light of the facts in the case and the law as it existed when the decree was entered. Anderson v. Dewey, 82 Idaho 173, 350 P.2d 734 (1960).

Compiler’s Notes.

The bracketed insertions throughout this section were added by the compiler to conform to the statutory citation style.

Compiler’s Notes.

The bracketed insertion near the beginning of the first paragraph was added by the compiler to conform to the statutory citation style.

Attorney’s Fees.

In order to recover attorney’s fees in action by watermaster against users of system, it was necessary to allege and prove three days’ verbal notice or service of written demand to contribute his proportion for maintenance and subsequent failure to comply. Carter v. Niday, 46 Idaho 505, 269 P. 91 (1928).

Expenses and Salary.

Legislature intended that cost of repairs and maintenance should be borne by water users individually without recourse to any public fund and watermaster’s salary should be paid in same way. Carter v. Niday, 46 Idaho 505, 269 P. 91 (1928).

Legislative Purpose.

Purpose of legislature was simply to provide means of insuring an equitable distribution of water received through community ditch, apportioning expense of operating and maintaining such community ditch and enforcing payment by each user of his part of expenses necessarily incurred. Preis v. Idaho Irrigation Co., 37 Idaho 109, 215 P. 466 (1923).

Set-off.

In action by watermaster for failure of user to contribute for maintenance, such water user could not set off against claim, expenses and damages incurred in maintaining mandamus proceedings to protect his rights as such damages should have been recovered in mandamus proceeding and could not be litigated in collateral action. Carter v. Niday, 46 Idaho 505, 269 P. 91 (1928).

Cross References.

Penalty for neglect to deliver water,§ 18-4310.

Action for Damages.

Water user makes prima facie case by proving contract and failure in delivery of water according to its terms, together with damages resulting to his crops and it is incumbent upon water company to prove failure of water supply on account of extraordinary drought and that it delivered to user his just proportion of water supply which it had. Tapper v. Idaho Irrigation Co., 36 Idaho 78, 210 P. 591 (1922); Preis v. Idaho Irrigation Co., 37 Idaho 109, 215 P. 466 (1923).

Action to Compel Delivery.

Applicant for use of water who had complied with provisions of this act and who was refused water, although company had sufficient unsold water to supply him, was entitled to writ of mandamus to compel delivery of water. Bardsly v. Boise City Irrigation & Land Co., 8 Idaho 155, 67 P. 428 (1901). Complaint must allege demand and must tender compensation or security for payment of charges for delivery, and it was insufficient to allege that plaintiff offered to secure payment of such charges. Bardsly v. Boise City Irrigation & Land Co., 8 Idaho 155, 67 P. 428 (1901).

Applicability.

This section was inapplicable to defendant’s distribution of water to certain subdivision lot owners, as defendant was not a person, company, or corporation owning or controlling any canal or irrigation works for the distribution of water. Therefore, the district court erred by stating in its findings and conclusions that plaintiffs were entitled to have defendant furnish water to plaintiffs’ property under this section. Mullinix v. Killgore’s Salmon River Fruit Co., 158 Idaho 269, 346 P.3d 286 (2015).

Construction.

This section does not provide its own penalty for violations. Sanderson v. Salmon River Canal Co., 34 Idaho 303, 200 P. 341 (1921), appeal dismissed, 260 U.S. 755, 43 S. Ct. 94, 67 L. Ed. 497 (1922).

Estoppel.

State, in dealing with Carey Act project, acts by virtue of its sovereignty and not in capacity of private owner, and doctrine of estoppel cannot be invoked against it but this does not apply to individual contract holders who, having obtained rights under contract providing that there shall be no priorities among them, are estopped to claim priorities as against each other. Sanderson v. Salmon River Canal Co., 34 Idaho 303, 200 P. 341 (1921), appeal dismissed, 260 U.S. 755, 43 S. Ct. 94, 67 L. Ed. 497 (1922).

Illegal Contracts.

Contracts whereby irrigation company agreed to furnish more water than it had ability to furnish were illegal. Gerber v. Nampa & Meridian Irrigation Dist., 16 Idaho 1, 100 P. 80 (1908).

Where party was entitled to water from ditch company and did everything that the constitution and laws of the state required him to do in order to get it, water company was bound to deliver him water and could not require him to sign a special contract binding him to do things which the law did not require him to do in order to get the water. Green v. Byers, 16 Idaho 178, 101 P. 79 (1909).

Under this section any water company or corporation is forbidden to contract or sell more water than it is entitled to and must not sell more water than it has. State v. Twin Falls Salmon River Land & Water Co., 30 Idaho 41, 166 P. 220 (1916).

Provision in contract that no water should be delivered to purchaser while he is in default as to any toll or assessment was invalid and void as to tolls and assessments for preceding year, but valid as to such charges for current year. Parrot v. Twin Falls Salmon River Land & Water Co., 32 Idaho 759, 188 P. 451 (1920).

Limit on Sale of Water.

Carey Act company could not sell water rights it did not have. Idaho Irrigation Co. v. Gooding, 265 U.S. 518, 44 S. Ct. 618, 68 L. Ed. 1157 (1924). State land board was without authority to authorize construction company to sell indefinite fractional water right to settlers under Carey Act project, but was required to limit such sales to amount of water available from company’s appropriation, which could be seasonably delivered by proposed system. State v. Twin Falls Land & Water Co., 37 Idaho 73, 217 P. 252 (1923).

Priorities.

All settlers who purchase water rights and apply water to land shall be in same class without priorities among themselves. Sanderson v. Salmon River Canal Co., 34 Idaho 303, 200 P. 341 (1921), appeal dismissed, 260 U.S. 755, 43 S. Ct. 94, 67 L. Ed. 497 (1922).

Rights and Remedies of Water Company.

Carey Act company furnishing all water good husbandry required could foreclose liens therefor, although it had not furnished the full amount of water contracted for. Sallee v. Commonwealth Trust Co., 8 F.2d 227 (9th Cir. 1925).

This section did not repeal§ 42-1206, and water company which delivered water to consumer without demanding prepayment of charges therefor may sue at law to recover amount of such charges already earned by it, but cannot shut off consumer’s water because he refused to make payment. Shelby v. Farmers Coop. Ditch Co., 10 Idaho 723, 80 P. 222 (1905).

Company may require persons claiming water to pay or give security for payment of maintenance assessments in advance of furnishing water. Reynolds v. North Side Canal Co., 36 Idaho 622, 213 P. 344 (1923).

Writ of Mandamus.

Writ of mandamus would not issue to compel Carey Act company to issue shares where shares of stock already sold were in excess of available water supply and contract between company and state was entered into under mutual mistake of material fact. State v. Twin Falls Salmon River Land & Water Co., 30 Idaho 41, 166 P. 220 (1916); Sanderson v. Salmon River Canal Co., 34 Idaho 303, 200 P. 341 (1921), appeal dismissed, 260 U.S. 755, 43 S. Ct. 94, 67 L. Ed. 497 (1922).

Application of Section.

This section had no application to case where all prior applications for water had been supplied and ditch company still had water for rental and distribution, and in such case applicant could have enforced delivery of water, although he did not make his application prior to January 1. Helphery v. Perrault, 12 Idaho 451, 86 P. 417 (1906).

Cross References.

Domestic purposes defined,§ 42-111.

Continuing rights to water guaranteed, Idaho Const., Art. XV, § 4.

Delivery Outside District.

Determination of Conditions of Use.

Delivery of water outside irrigation district, when same was not needed by users within district, was not a dedication and did not confer vested right in owner outside district. Yaden v. Gem Irrigation Dist., 37 Idaho 300, 216 P. 250 (1923). Determination of Conditions of Use.

Terms and conditions upon which a person is entitled to use of water from ditch or canal company are to be determined by courts. Wilterding v. Green, 4 Idaho 773, 45 P. 134 (1896).

Enlargement of District.

Where the owners of the original lands of an irrigation district had acquired and, for many years, applied to the irrigation of their lands valuable water rights which had become appurtenant and dedicated to their lands and which were held in trust by the district for their use, they could not, without their consent, upon the annexation of new lands to the district, be deprived of that water when needed to irrigate their lands. Bradshaw v. Milner Low Lift Irrigation Dist., 85 Idaho 528, 381 P.2d 440 (1963).

United States Party to Adjudication Action.

Where the United States was interested in a contract with an irrigation district and such district brought an action for an adjudication of its water rights, which were affected by said contract, the United States was an indispensable party to such suit and this was true notwithstanding the fact that the secretary of the interior was made a party, and that the contract in question was made and executed through and by him and neither was the situation changed by the fact that there had been a prior decree of the state court adjudicating such rights wherein the secretary was a party defendant. American Falls Reservoir Dist. No. 2 v. Crandall, 82 F.2d 973, modified on other grounds, 85 F.2d 864 (9th Cir. 1936).

Beneficial Use.

Where the United States bureau of reclamation (BOR) filed water right claims against irrigation entities regarding projects developed pursuant to the Reclamation Act of 1902, any rights held by BOR were subject to rights of the beneficial users that were served by the irrigation districts because, inter alia, (1) federal law deferred to state law in determining the rights to water in the reclamation projects, (2) the beneficial users had an interest that was stronger than mere contractual expectancy, and (3) title to the use of the water was held by the consumers or users of the water. United States v. Pioneer Irrigation Dist. (In re SRBA Case No. 3957), 144 Idaho 106, 157 P.3d 600 (2007).

Construction.

Mortgage Foreclosure.

This section was intended to apply to such water rights as are described in Idaho Const., Art. XV, § 4, that is, a water right only where there has been an actual application of water to land for a beneficial use. Hewitt v. Great W. Beet Sugar Co., 20 Idaho 235, 118 P. 296 (1911). Mortgage Foreclosure.

Upon purchase and payment of permanent water right, such water right thereafter was in no way affected by the lien of any mortgage given by company from whom such water right was purchased, or by any foreclosure of any such mortgage, whether given before or after the sale of such water right. Hewitt v. Great W. Beet Sugar Co., 20 Idaho 235, 118 P. 296 (1911).

Law a Part of Contracts.

By reading this section into a water contract, water user is entitled to receive amount of water specified in his contract to the extent necessary to irrigate the crop or crops which he cultivates in accordance with the usages of good husbandry, but he is not entitled to receive a greater amount than is necessary to irrigate his crops, nor, in any event, a greater amount than that specified in the contract. State v. Twin Falls Salmon River Land & Water Co., 30 Idaho 41, 166 P. 220 (1916).

Provision that water user must not use more water than good husbandry requires is read into Carey Act contracts. Idaho Irrigation Co. v. Gooding, 265 U.S. 518, 44 S. Ct. 618, 68 L. Ed. 1157 (1924); Sallee v. Commonwealth Trust Co., 8 F.2d 227 (9th Cir. 1925).

Public Policy.

Duty of careful and economical use of water is one that by statute as well as public policy is imposed upon every water user. State v. Twin Falls Canal Co., 21 Idaho 410, 121 P. 1039 (1911), error dismissed, 235 U.S. 690, 35 S. Ct. 205, 59 L. Ed. 427 (1914).

It is against the public policy of state, as well as against express enactments, for a water user to take more of the water to which he is entitled than is necessary for the beneficial use for which he has appropriated it. Glavin v. Salmon River Canal Co., 44 Idaho 583, 258 P. 532 (1927).

Since it is the policy of the law of Idaho to prevent the wasting of water, at such times during the irrigation season as water is not being used and beneficially applied, other users are entitled to use and beneficially apply such water. Knutson v. Huggins, 62 Idaho 662, 115 P.2d 421 (1941).

Waste Water.

Where an excess amount of water must be diverted and utilized in order to sufficiently and economically irrigate land, the excess so diverted is not waste within meaning of this section and§ 18-4117 (repealed), since what constitutes a reasonable use of water is a question of fact and depends upon the circumstances of each case. Beasley v. Engstrom, 31 Idaho 14, 168 P. 1145 (1917).

Appropriator of waste water cannot require the owner of the water right to continue to waste the water for the benefit of the appropriator. Colthorp v. Mountain Home Irrigation Dist., 66 Idaho 173, 157 P.2d 1005 (1945).

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

Cross References.

Manner in which reasonable maximum rates for water use may be established, Idaho Const., Art. XV, § 6.

Change of Rates.

Rate, adjudged reasonable, must be presumed to have remained reasonable until such time as such rate is changed in conformity with the statute. Green v. Jones, 22 Idaho 560, 126 P. 1051 (1912).

At any time after expiration of one year from the time rates were established any party in interest may petition board to fix a new rate. Green v. Jones, 22 Idaho 560, 126 P. 1051 (1912).

Laborers.

Rates Fixed by Contract.

Laborers tending and maintaining water canals and reservoirs were agricultural workers for purposes of unemployment compensation act. Big Wood Canal Co. v. Unemployment Comp. Div., 61 Idaho 252, 100 P.2d 49 (1940). Rates Fixed by Contract.

Private contracts granting water rights at fixed prices entered into prior to act of March 7, 1895 (1895, p. 174), first legislation providing for fixing rates, were not affected by such act or subsequent legislation. Boise City Irrigation & Land Co. v. Turner, 176 F. 373 (C.C.D. Idaho 1905).

While county commissioners are authorized by this section to fix water rates, legislature has by§ 42-905 also authorized parties to enter into a contract with reference to rate to be charged and such contract, when made before commissioners have established any rates, will be enforced. Jackson v. Indian Creek Reservoir Ditch & Irrigation Co., 16 Idaho 430, 101 P. 814 (1909).

C.J.S.

§ 42-1002. Setting date for hearing.

Every such board of county commissioners shall, upon examination of such affidavit or affidavits, or from the oaths of witnesses thereto, if they find that the facts sworn to show the application to be in good faith, and that there are reasonable grounds to believe that unjust rates of compensation are, or are likely to be, charged or demanded for water from such ditch, canal, or conduit, enter an order fixing a day not sooner than ten (10) days thereafter, nor later than twenty (20) days (a special meeting may be called for that purpose), when they will hear all parties interested in such water-works aforesaid, or in procuring water therefrom, for any of the said purposes as well as all documentary or oral evidence or depositions taken according to law, touching said ditch or other water-works aforesaid, and the cost of furnishing water therefrom.

History.

1899, p. 380, § 27; reen. R.C. & C.L., § 3295; C.S., § 5642; I.C.A.,§ 41-902.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Compiler’s Notes.

The bracketed insertion near the middle of the section was added by the compiler to correct the enacting legislation.

Cross References.

Attachment for contempt,§ 7-601 et seq.

Service of subpoenas, Idaho R. Civ. P. 4.

CASE NOTES

Appeal.

This section expressly confers jurisdiction upon district court to hear appeals from orders of boards of county commissioners fixing water rates. Rust v. Stewart, 7 Idaho 558, 64 P. 222 (1901).

Intent.

Intent of this provision is that water rate, once established, is to remain in force until the establishment of a new one in conformity with law. Green v. Jones, 22 Idaho 560, 126 P. 1051 (1912).

Riparian Rights.

In the dissenting opinion this section was cited in support of the application of the doctrine of riparian rights to the irrigation law, but the majority of the court, without citing this section, declared, in effect, that the doctrine of riparian rights has no place in the jurisprudence of this state. Drake v. Earhart, 2 Idaho 750, 23 P. 541 (1890).

Riparian rights are substantial property rights which may not be arbitrarily destroyed, but they are subject to the police power of the state and, within reasonable limits, may be modified by legislation passed in the interest of the general welfare. California-Oregon Power Co. v. Beaver Portland Cement Co., 73 F.2d 555 (9th Cir. 1934), aff’d, 295 U.S. 142, 55 S. Ct. 725, 79 L. Ed. 1356 (1935).

Amendments.

This section was amended by two 2019 acts which appear to be compatible and have been compiled together.

The 2019 amendment, by ch. 158, inserted “or operator” following “owner” throughout the third paragraph.

The 2019 amendment, by ch. 183, in the first paragraph, rewrote the third sentence, which formerly read: “The right-of-way also includes the right to deposit on the banks of the ditch or canal the debris and other matter necessarily required to be taken from the ditch or canal to properly clean and maintain it, but no greater width of land along the banks of the canal or ditch than is absolutely necessary for such deposits shall be occupied by the removed debris or other matter” and inserted the present fourth sentence; and inserted “landscaping, trees, vegetation” near the middle of the second sentence in the third paragraph.

Compiler’s Notes.

The phrase “the effective date of this act” in the last paragraph refers to the effective date of S.L. 1996, Chapter 187, which was effective March 12, 1996.

The words enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 3 of S.L. 1996, ch. 187 declared an emergency. Approved March 12, 1996.

Condemnation for Right of Way.

Where an owner of land was denied access for irrigation water across the lands of an adjacent landowner, the owner could condemn a right of way to supply the water under the law of eminent domain. White v. Marty, 97 Idaho 85, 540 P.2d 270 (1975), overruled on other grounds, Carr v. Magistrate Court, 108 Idaho 546, 700 P.2d 949 (1985).

Landlocked individuals may condemn a right of way through the lands of others for purposes of irrigation. Canyon View Irrigation Co. v. Twin Falls Canal Co., 101 Idaho 604, 619 P.2d 122 (1980), cert. denied, 451 U.S. 912, 101 S. Ct. 1983, 68 L. Ed. 2d 301 (1981).

Repair and Maintenance Costs.

If the servient estate landowner’s use of irrigation ditch had increased the cost of repairs and maintenance, he would have been responsible for the additional costs; but since his use did not increase those costs, he had no obligation to pay for any portion of those costs. Sellers v. Powell, 120 Idaho 250, 815 P.2d 448 (1991).

Rights of Servient and Dominant Owners.

Where irrigation district sought an injunction to prohibit servient owner from constructing a sidewalk and fence on property over which the district had an irrigation easement, it was determined that the irrigation district’s easement was not exclusive, and the district failed to produce evidence showing that construction of the sidewalk and fence along the side of the irrigation lateral would unreasonably interfere with its rights under the easement, regardless of whether those rights arose from the grant of the channel change easement or this section. Nampa & Meridian Irrigation Dist. v. Washington Fed. Sav., 135 Idaho 518, 20 P.3d 702 (2001), overruled on other grounds, Idaho Military Historical Soc’y, Inc. v. Maslen, 156 Idaho 624, 329 P.3d 1072 (2014).

Irrigation district does not enjoy exclusive rights in its primary easements and rights-of-way. Rather, this section only contemplates a right-of-way for cleaning, maintaining, and repairing canals. This section provides notice to owners of land that the owner of the ditch or canal has the right-of-way, and serves to clarify what the right-of-way includes. Pioneer Irrigation Dist. v. City of Caldwell, 153 Idaho 593, 288 P.3d 810 (2012).

Trial court did not err by determining that an irrigation district owned a right-of-way along an irrigation canal that ran the entire length of an owners’ property and that the right-of-way commenced at the top of the bank before the bank began its descent to the water, where portions of the owner’s property stretched out flat from the top of the bank. The right-of-way commenced from the outside toe of the berm levy or bank, where the land began to level out where portions of the owner’s property abutting the canal were bermed or levied. Morgan v. New Swed. Irrigation Dist., 160 Idaho 47, 368 P.3d 990 (2016).

Use of Existing Canal.

Where an irrigation company had purchased approximately 300 cfs of Snake River water and sought to put that water to beneficial use on land located west of an existing canal system, but where the irrigation company had no canal and there existed no natural waterway by which its water could be transported by gravity to its stockholders’ lands, the irrigation company could condemn the right to enlarge and use the existing canal in common with the canal company and thus the irrigation company could divert its water from the Snake River into the canal company’s canal system and then reclaim a like amount, with due allowance for seepage and evaporation, at a headgate closer to its irrigation project site. Canyon View Irrigation Co. v. Twin Falls Canal Co., 101 Idaho 604, 619 P.2d 122 (1980), cert. denied, 451 U.S. 912, 101 S. Ct. 1983, 68 L. Ed. 2d 301 (1981). RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

Am. Jur. 2d.

C.J.S.

Cross References.

Procurement of right of way over state lands,§ 58-601 et seq.

Right of eminent domain,§ 7-701 et seq.

Running water across public highway, construction of bridges and culverts,§ 40-2321.

Compensation.

Right of way over state land can be acquired only after just compensation is paid therefor, to be ascertained in the manner prescribed by law. Tobey v. Bridgewood, 22 Idaho 566, 127 P. 178 (1912), overruled on other grounds, Idaho-Iowa Lateral & Reservoir Co. v. Fisher, 27 Idaho 695, 151 P. 998 (1915).

Condemnation of State Lands.

This section, taken in conjunction with R. S., § 5212 (§ 7-703 herein), authorizes action in district court to condemn state lands for public use. Hollister v. State, 9 Idaho 8, 71 P. 541 (1903).

Easements.

Federal Authority to Condemn Lands.

Where irrigation ditch extended in part across school section, and owners had not acquired easement therefor in the statutory manner, private party could not question such owners’ right to the easement. Swan v. Sproat, 36 Idaho 75, 209 P. 1070 (1922). Federal Authority to Condemn Lands.

The state of Idaho has consented to be sued in condemnation proceedings involving lands belonging to the state, and the federal government has the authority to condemn and acquire endowed school lands belonging to the state for purposes of an irrigation canal right of way for a migratory waterfowl refuge. United States v. Forty Acres, More or Less, of Land, 24 F. Supp. 390 (D. Idaho 1938).

Am. Jur. 2d.

C.J.S.

Nature of Right.

License given by this section does not confer any power to appropriate, without reference to beneficial use, the entire volume of a river or its current, to the destruction of the rights of others to make appropriations of the unused water. Schodde v. Twin Falls Land & Water Co., 224 U.S. 107, 32 S. Ct. 470, 56 L. Ed. 686 (1912).

This section gives mere license to use an appropriate method for raising water, but the method or means adopted does not attach as an appurtenance to the appropriation of the water as against other appropriators. Schodde v. Twin Falls Land & Water Co., 161 F. 43 (9th Cir. 1908), aff’d, 224 U.S. 107, 32 S. Ct. 470, 56 L. Ed. 686 (1912).

Am. Jur. 2d.

C.J.S.

Cross References.

Law of eminent domain,§ 7-701 et seq.

Failure to Condemn Easement.

The plaintiff was not unjustly enriched by the levy of a maintenance assessment against the defendants where the defendants had failed to use legal remedies available to them to condemn an easement for a replacement ditch. Aberdeen-Springfield Canal Co. v. Peiper, 133 Idaho 82, 982 P.2d 917 (1999).

Injunction to Prevent Trespass.

An injunction will issue against trespass on owner’s land by reservoir company for maintenance purposes of ditches, etc., where reservoir company had not used water for period of 12 years. Condie v. Swainston, 62 Idaho 473, 112 P.2d 787 (1941).

Right to Condemn Right of Way.

Where an owner of land was denied access for irrigation water across the lands of an adjacent landowner, the owner could condemn a right of way to supply the water under the law of eminent domain. White v. Marty, 97 Idaho 85, 540 P.2d 270 (1975), overruled on other grounds, Carr v. Magistrate Court, 108 Idaho 546, 700 P.2d 949 (1985).

Landlocked individuals may condemn a right of way through the lands of others for purposes of irrigation. Canyon View Irrigation Co. v. Twin Falls Canal Co., 101 Idaho 604, 619 P.2d 122 (1980), cert. denied, 451 U.S. 912, 101 S. Ct. 1983, 68 L. Ed. 2d 301 (1981).

Use of Existing Canal.

Condemnation of an easement to construct a pipeline for irrigation purposes, a beneficial use, was authorized and reasonably necessary to reduce conveyance losses. Telford Lands LLC v. Cain, 154 Idaho 981, 303 P.3d 1237 (2013). Use of Existing Canal.

Where an irrigation company had purchased approximately 300 cfs of Snake River water and sought to put that water to beneficial use on land located west of an existing canal system, but where the irrigation company had no canal and there existed no natural waterway by which its water could be transported by gravity to its stockholders’ lands, the irrigation company could condemn the right to enlarge and use the existing canal in common with the canal company and thus the irrigation company could divert its water from the Snake River into the canal company’s canal system and then reclaim a like amount, with due allowance for seepage and evaporation, at a headgate closer to its irrigation project site. Canyon View Irrigation Co. v. Twin Falls Canal Co., 101 Idaho 604, 619 P.2d 122 (1980), cert. denied, 451 U.S. 912, 101 S. Ct. 1983, 68 L. Ed. 2d 301 (1981).

Am. Jur. 2d.

C.J.S.

Easement.

Turning of waste water into drainage ditch system constructed by plaintiffs could ripen into an easement only if there was an interference with the rights of another for the prescriptive period. Poole v. Olaveson, 82 Idaho 496, 356 P.2d 61 (1960).

Am. Jur. 2d.

§ 42-1108. Right to cross ditches.

Any person, company or corporation, owners of any ditch, flume or other conduit, can not lawfully deny to any other person, company or corporation the right to cross their right of way with another ditch, flume or conduit either upon a higher or lower level, where the same can be done in a convenient and safe manner: provided, that such second person, company or corporation shall be liable for all damages that may accrue from the construction of such ditch, flume or other conduit across the conduit of another.

History.

1899, p. 380, last half of § 10; am. R.C. & C.L., § 3305; C.S., § 5653; I.C.A.,§ 41-1008.

Maintenance of Flume.

Where in crossing another’s ditch there was temporary elimination of same, and flume was constructed to take its place, crossing company was required to keep flume in good condition and was liable for all damages resulting from failure to do so. Mahaffey v. Carlson, 39 Idaho 162, 228 P. 793 (1924).

Compiler’s Notes.

The bracketed insertion near the middle of the section was added by the compiler to grammatically correct the sentence.

Water Decree Prior to Statute.

Since this statute was enacted subsequent to decree as to water rights, it could not be considered as controlling in construing that decree, rather the decree should have been construed in the light of the facts in the case and the law as it existed when the decree was entered. Anderson v. Dewey, 82 Idaho 173, 350 P.2d 734 (1960).

Cross References.

Canal rights of way infested with insect pests, or plant diseases, abatement as nuisance,§ 22-103.

Fish screens in ditches, canals, flumes or other water conduits required,§ 36-906.

Injuring ditch or headgate,§ 42-902.

Conflicting Evidence.

Where there was conflicting evidence concerning the adequacy of water supply and the court might have inferred that the water shortage resulted from construction defects in new ditch, but also could have inferred that the shortage was attributable to such other causes as lack of maintenance, for which the defendant contractor was not responsible, the court’s determination, under Idaho R. Civ. P. 41(b) motion for involuntary dismissal, that the plaintiff landowners failed to prove a right to damages resulting from alteration of an irrigation ditch by a highway construction contractor, was proper. Allen v. Burggraf Constr. Co., 106 Idaho 451, 680 P.2d 873 (Ct. App. 1984).

Liability for Costs.

If the servient estate landowner’s use of irrigation ditch had increased the cost of repairs and maintenance, he would have been responsible for the additional costs; but since his use did not increase those costs, he had no obligation to pay for any portion of those costs. Sellers v. Powell, 120 Idaho 250, 815 P.2d 448 (1991).

Water Decree Prior to Statute.

Since this statute was enacted subsequent to decree as to water rights, it could not be considered as controlling in construing that decree, rather the decree should have been construed in the light of the facts in the case and the law as it existed when the decree was entered. Anderson v. Dewey, 82 Idaho 173, 350 P.2d 734 (1960).

Cross References.

Penalty for wasting water,§ 18-4302.

Amendments.

The 2012 amendment, by ch 274, added the last three sentences.

The 2019 amendment, by ch. 158, inserted “and operators” or “or operators” throughout the section.

Instructions to Jury.

Giving instruction substantially embodying provisions of this section, in action by landowner for damages to crops caused by water seeping and percolating from defendant’s canal, was not improper. Stephenson v. Pioneer Irrigation Dist., 49 Idaho 189, 288 P. 421 (1930).

Am. Jur. 2d.

C.J.S.

Amendments.

The 2012 amendment, by ch 274, added the second through fourth sentences.

This section was amended by two 2019 acts which appear to be compatible and have been compiled together.

The 2019 amendment, by ch. 158, inserted “or operators” or “or operator” throughout the section.

The 2019 amendment, by ch. 183, rewrote the present next-to-last sentence, which formerly read: “The right-of-way also includes the right to deposit on the banks of the ditch or canal the debris and other matter necessarily required to be taken from the ditch or canal to properly clean and maintain it, but no greater width of land along the banks of the canal or ditch than is absolutely necessary for such deposits shall be occupied by the removed debris or other matter”, and added the present last sentence.

Effective Dates.

Section 3 of S.L. 1996, ch. 187 declared an emergency. Approved March 12, 1996.

Crossing Ditch of Another.

Where in crossing another’s ditch there was temporary elimination of same, and flume was constructed to take its place, crossing company was required to keep flume in good condition and was liable for all damages resulting from failure to do so. Mahaffey v. Carlson, 39 Idaho 162, 228 P. 793 (1924).

In General.

It was not the province of the court to prescribe the nature, purpose or kind of a structure that could be constructed in the area referred to, the important thing was that such structure did not cause damage to or in any way injure the properties or premises of others. Smith v. Big Lost River Irrigation Dist., 83 Idaho 374, 364 P.2d 146 (1961); Pence v. Big Lost River Irrigation Dist., 83 Idaho 393, 364 P.2d 158 (1961); Donahue v. Big Lost River Irrigation Dist., 83 Idaho 393, 364 P.2d 158 (1961); Johnson v. Big Lost River Irrigation Dist., 83 Idaho 394, 364 P.2d 159 (1961).

Although this section imposes a duty to carefully keep and maintain canal banks in good repair, it does not define a standard of care by which the trier of fact may determine whether a defendant has failed to carefully keep and repair its canal banks. Brizendine v. Nampa Meridian Irrigation Dist., 97 Idaho 580, 548 P.2d 80 (1976).

Instructions to Jury.

Giving instruction substantially embodying provisions of this section, in action by landowner for damages to crops caused by water seeping and percolating from defendant’s canal, was not improper. Stephenson v. Pioneer Irrigation Dist., 49 Idaho 189, 288 P. 421 (1930).

An instruction that one who undertakes the construction of an artificial channel must build, operate and maintain it in such manner as not to cause damage to others did not conflict with an instruction covering the situation where the artificial channel was not the proximate cause of the damage. Smith v. Big Lost River Irrigation Dist., 83 Idaho 374, 364 P.2d 146 (1961); Pence v. Big Lost River Irrigation Dist., 83 Idaho 393, 364 P.2d 158 (1961); Donahue v. Big Lost River Irrigation Dist., 83 Idaho 393, 364 P.2d 158 (1961); Johnson v. Big Lost River Irrigation Dist., 83 Idaho 394, 364 P.2d 159 (1961).

Liability for Crop Losses.

The owner of irrigation ditch was liable in damages for crop losses caused by seepage from ditch. Albrethson v. Carey Valley Reservoir Co., 67 Idaho 529, 186 P.2d 853 (1947).

The contractor who had constructed a new irrigation ditch for the department of highways to facilitate the construction of a new highway through the area was not liable to a property owner for crop damage resulting from failure to properly repair damage to the ditch from trampling of the levee by pastured cows after the ditch was completed and accepted by the department of highways. Gates v. Pickett & Nelson Constr. Co., 91 Idaho 836, 432 P.2d 780 (1967), overruled on other grounds, Smith v. State, 93 Idaho 795, 473 P.2d 937 (1970).

Negligence Per Se.

This section does not require a permit or application, but rather requires the owners or constructors of ditches, canals, works, or other aqueducts to prevent damage to others. Therefore, this section does not create a negligence per se action, but only codifies that ditch owners and constructors can be held liable for damages occurring to others as a result of negligence. Stott ex rel. Dougall v. Finney, 130 Idaho 894, 950 P.2d 709 (1997).

Negligent Construction or Maintenance.

The owner of an irrigation ditch was liable for damage resulting from negligence in constructing or maintaining the ditch. Albrethson v. Carey Valley Reservoir Co., 67 Idaho 529, 186 P.2d 853 (1947).

In action brought to recover damages for injury to a crop of potatoes, a finding by the jury of negligence on the appellant’s part in maintaining the lateral was justified where either water in some considerable quantity, more than the lateral could safely carry, was emptied into the lateral while checked and backed up by flash boards, causing the banks of the lateral to overflow and break, or seepage through a gopher hole enlarged to a stream sufficient to break the bank of the lateral. Johnson v. Burley Irrigation Dist., 78 Idaho 392, 304 P.2d 912 (1956). The owner of an irrigation canal was liable for property damage resulting from water from the canal seeping into the residence basement of an abutting property owner. Harris v. Preston-Whitney Irrigation Co., 92 Idaho 398, 443 P.2d 482 (1968).

In landowners’ action for damages for injury to property caused by flooding which resulted when irrigation district’s canal bank broke, an engineer’s testimony that the break was caused by a combination of factors including inadequate design, poor construction procedures, and gopher holes penetrating the embankment supported the trial court’s findings that the canal would not have broken in the absence of negligence and that the irrigation district was thereby liable. Brizendine v. Nampa Meridian Irrigation Dist., 97 Idaho 580, 548 P.2d 80 (1976).

Owner’s Testimony for Appraisement.

Since it is a settled rule in this state that the owner of property is a competent witness as to its value, the owner’s failure or inability to explain the basis for his appraisement affected the weight of his testimony but it did not disqualify him as a witness. Smith v. Big Lost River Irrigation Dist., 83 Idaho 374, 364 P.2d 146 (1961); Pence v. Big Lost River Irrigation Dist., 83 Idaho 393, 364 P.2d 158 (1961); Donahue v. Big Lost River Irrigation Dist., 83 Idaho 393, 364 P.2d 158 (1961); Johnson v. Big Lost River Irrigation Dist., 83 Idaho 394, 364 P.2d 159 (1961).

Ownership and Water Rights Distinguished.

The fact that water is stored in a reservoir does not make those who have rights to the water the owners of the dam that creates the reservoir. Marty v. State, 117 Idaho 133, 786 P.2d 524 (1989).

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

The concluding proviso of this section, as it appeared in the 1899 act read, “provided, that after said bridge shall have been constructed across any county or state road . . . . .” The change is made on authority of MacCammelly v. Pioneer Irr. Dist. (1909), 17 Idaho 415, 105 P. 1076.

The words enclosed in parentheses so appeared in the law as enacted.

Liability for Cost.

County must construct all bridges to complete highway over ditch laid out after the ditch has been constructed, but not if highway built first. MacCammelly v. Pioneer Irrigation Dist., 17 Idaho 415, 105 P. 1076 (1909).

If ditch or canal was constructed prior to establishment of public highway which intersects it, expense of building bridge must be borne by county or highway district. Gooding Hwy. Dist. v. Idaho Irrigation Co., 30 Idaho 232, 164 P. 99 (1917).

Remedy of Water Company.

This section was not repealed by S.L. 1899, p. 380, and water company which delivered water to consumer without obtaining prepayment of charges therefor could not shut off consumer’s water because of his refusal to pay such charges, but could maintain an action to recover amount of charges. Shelby v. Farmers Coop. Ditch Co., 10 Idaho 723, 80 P. 222 (1905).

Am. Jur. 2d.

§ 42-1207. Change of ditch, canal, lateral, drain or buried irrigation conduit.

Where any ditch, canal, lateral or drain or buried irrigation conduit has heretofore been, or may hereafter be, constructed across or beneath the lands of another, the person or persons owning or controlling said land shall have the right at their own expense to change said ditch, canal, lateral or drain or buried irrigation conduit to any other part of said land, but such change must be made in such a manner as not to impede the flow of the water therein, or to otherwise injure any person or persons using or interested in such ditch, canal, lateral or drain or buried irrigation conduit. Any increased operation and maintenance shall be the responsibility of the landowner who makes the change, his heirs, executors, administrators, successors and assigns.

A landowner shall also have the right to bury the ditch, canal, lateral or drain of another in pipe on the landowner’s property, provided that the pipe, installation and backfill reasonably meet standard specifications for such materials and construction, as set forth in the Idaho standards for public works construction or other standards recognized by the city or county in which the burying is to be done. The right and responsibility for operation and maintenance shall remain with the owner of the ditch, canal, lateral or drain, but the landowner, his heirs, executors, administrators, successors and assigns shall be responsible for any increased operation and maintenance costs, including rehabilitation and replacement, unless otherwise agreed in writing with the owner.

The written permission of the owner or operator of a ditch, canal, lateral, drain or buried irrigation conduit must first be obtained before it is changed or placed in buried pipe by the landowner.

While the owner or operator of a ditch, canal, lateral, drain or buried irrigation conduit shall have no right to relocate it on the property of another without permission, a ditch, canal, lateral or drain owner or operator shall have the right to place it in a buried conduit within the easement or right-of-way on the property of another in accordance with standard specifications for pipe, materials, installation and backfill, as set forth in the Idaho standards for public works construction or other standards recognized by the city or county in which the burying is to be done, and as long as the pipe and the construction is accomplished in a manner that the surface of the owner’s property and the owner’s use thereof is not disrupted and is restored to the condition of adjacent property as expeditiously as possible, but no longer than thirty (30) days after the completion of construction. A landowner shall have the right to direct that the conduit be relocated to a different route than the route of the ditch, canal, lateral or drain, provided that the landowner, his heirs, executors, administrators, successors and assigns shall be responsible for any increased construction or future maintenance costs necessitated by said relocation. Maintenance of the buried conduit shall be the responsibility of the conduit owner or operator.

History.

1907, p. 237, § 4; reen. R.C. & C.L., § 3311a; C.S., § 5660; I.C.A., § 41-1107; am. 1994, ch. 151, § 1, p. 345; am. 2002, ch. 115, § 4, p. 326; am. 2005, ch. 331, § 1, p. 1038; am. 2011, ch. 177, § 1, p. 504; am. 2019, ch. 158, § 4, p. 511. STATUTORY NOTES

Amendments.

The 2011 amendment, by ch. 177, near the end of the first, second, and last paragraphs, inserted “his heirs, executors, administrators, successors and assigns”; and, in the last paragraph, deleted “agree in writing to” preceding “be responsible for” in the next-to-last sentence.

The 2019 amendment, by ch. 158, inserted “or operator” following “owner” throughout the third and fourth paragraphs.

Change Without Permission.

When a servient estate owner, acting without permission of a ditch owner, changes the course of the ditch on his property, he subjects himself to the obligation to restore the ditch to its previous condition or, alternately, to an award of damages to accomplish the same, and to an award of damages for injuries resulting from the unauthorized interference. Bratton v. Scott, 150 Idaho 530, 248 P.3d 1265 (2011).

Compensable Injuries.

Although this section does not delineate the type of injuries that are compensable, increased maintenance burdens and forced rotation of use are compensable injuries. Additionally, when there are minor increases in maintenance burdens accompanied by other injuries, such as forced rotation of use, these combined injuries are also compensable injuries. Bratton v. Scott, 150 Idaho 530, 248 P.3d 1265 (2011).

Compliance with Statutory Requirement.

Conflicting Evidence.

Servient estate seeking to change location of ditch must comply with statutory requirement, since prior to enactment of statutory law there was no right to change a ditch. Simonson v. Moon, 72 Idaho 39, 237 P.2d 93 (1951). Conflicting Evidence.

Where there was conflicting evidence concerning the adequacy of water supply and the court might have inferred that the water shortage resulted from construction defects in new ditch, but also could have inferred that the shortage was attributable to such other causes as lack of maintenance, for which the defendant contractor was not responsible, the court’s determination, under an Idaho R. Civ. P. 41(b) motion for involuntary dismissal, that the plaintiff landowners failed to prove a right to damages resulting from alteration of an irrigation ditch by a highway construction contractor, was proper. Allen v. Burggraf Constr. Co., 106 Idaho 451, 680 P.2d 873 (Ct. App. 1984).

Dominant Estate Holder.

As the holder of the ditch right, the dominant estate owner may make changes to an irrigation ditch easement, so long as the changes do not increase the burden on the servient land, even if those changes remove an incidental benefit to the servient estate holder. Zingiber Inv., LLC v. Hagerman Highway Dist., 150 Idaho 675, 249 P.3d 868 (2011), overruled on other grounds, City of Osburn v. Randel, 152 Idaho 906, 277 P.3d 353 (2012).

This section grants a ditch owner the express right to pipe the ditch under the existing ditch easement or right-of-way. It also implicitly grants the ditch owner the right to pipe the ditch in a location off of the servient land without the servient landowner’s permission, because the statute states that written permission is only required if the ditch is relocated on the servient land. Further, piping the ditch in a location outside the servient land, and thus removing an incidental benefit along with it, is well within the rights of a dominant-estate holder. Zingiber Inv., LLC v. Hagerman Highway Dist., 150 Idaho 675, 249 P.3d 868 (2011), overruled on other grounds, City of Osburn v. Randel, 152 Idaho 906, 277 P.3d 353 (2012).

Historical Flow of Water.

A decrease in the amount of water to which users of water from an irrigation ditch are entitled, measured in terms of miners’ inches or c.f.s., may be the best method of establishing that the flow has been impeded, but it is not the only method to prove this occurrence. Ditch rights are determined by the flow of water historically conveyed through the ditch and not necessarily by the amount of water to which its users are entitled under the water laws of this state. Savage Lateral Ditch Water Users Ass’n v. Pulley, 125 Idaho 237, 869 P.2d 554 (1994).

Impediment to Water Flow.

Defendant could not recover under this section because he failed to introduce any evidence of the historic flow rate of water to his property before and after plaintiff’s changes, and another property owner whose property received water from the new concrete collection box through an outlet at the same level in the collection box as the outlet to defendant’s property, testified that she received more water after plaintiff’s changes. Weaver v. Stafford, 134 Idaho 691, 8 P.3d 1234 (2000), overruled on other grounds, Weitz v. Green, 148 Idaho 851, 230 P.3d 743 (2010).

Increased Maintenance Burden to Others.

Landowner.

An increased maintenance burden caused other users is an injury prohibited under this section; although a minor increase in the length of a ditch or other conditions which negligibly increase its maintenance are insufficient injuries by themselves to constitute a violation of the statute, when such burdens are accompanied by forced rotation of ditch use or other inconvenience, the combined injuries are sufficient. Savage Lateral Ditch Water Users Ass’n v. Pulley, 125 Idaho 237, 869 P.2d 554 (1994). Landowner.

The first paragraph of this section gives a servient-estate owner the right to move an irrigation ditch on his own property, so long as it does not injure any of the other ditch users. Zingiber Inv., LLC v. Hagerman Highway Dist., 150 Idaho 675, 249 P.3d 868 (2011), overruled on other grounds, City of Osburn v. Randel, 152 Idaho 906, 277 P.3d 353 (2012).

Landowner’s Rights.

A landowner is not the owner of that portion of an irrigation ditch that passes through his land, but is simply the owner of a servient estate. The owner of a servient estate does not have any right in the easement that crosses his land, because a servient estate simply permits another’s use of its land. Zingiber Inv., LLC v. Hagerman Highway Dist., 150 Idaho 675, 249 P.3d 868 (2011), overruled on other grounds, City of Osburn v. Randel, 152 Idaho 906, 277 P.3d 353 (2012).

Maintenance of Changed Ditch.

One, across whose land a lateral ditch was constructed, could change its location only at his own expense, but he need not thereafter maintain ditch. Crawford v. Inglin, 44 Idaho 663, 258 P. 541 (1927).

Ditch should be maintained by persons interested in ditch. Earhart v. Wright, 50 Idaho 270, 295 P. 630 (1931).

Where servient estate cut off side ditch used by defendant for part of his water supply, but constructed a new ditch for use of defendant, burden of proof in proceeding to enjoin prosecution for cutting off ditch was on plaintiff to show that new ditch would convey same amount of water as conveyed by old ditch without impeding the flow in the main ditch. Simonson v. Moon, 72 Idaho 39, 237 P.2d 93 (1951).

If change in location of side ditch required rotation in use of water by users of main ditch, there was a substantial impediment in flow of water. Simonson v. Moon, 72 Idaho 39, 237 P.2d 93 (1951).

The installation of the Jamerson pipeline and the diversion works would in nowise change or affect respondent’s easement in the East Ditch, to transmit therein to his land 60 miners inches of water when needed or desired, such installation only changing the location of such easement in an open surface ditch to an underground ditch, such being accomplished through the cooperation of both landowners and by agreement arrived at between them. Ramseyer v. Jamerson, 78 Idaho 504, 305 P.2d 1088 (1957).

The trial court failed to recognize the application of this section although the parties themselves had applied the same in compromise and settlement of the controversy regarding appellant’s right to an easement sufficient to accommodate the diagonal lateral over respondent’s land or in lieu thereof, to a corresponding easement for a ditch over respondent’s lands changed to a location at respondent’s expense, different from that of the diagonal lateral. Aguirre v. Hamlin, 80 Idaho 176, 327 P.2d 349 (1958).

Plaintiff did not become entitled to a ditch of greater size and capacity and to an easement therefor, than his original diagonal lateral destroyed by respondent and the easement over respondent’s lands should have been of similar construction as the diagonal lateral, over the route as designated by respondent to a point where the diagonal lateral formerly entered appellant’s property. Aguirre v. Hamlin, 80 Idaho 176, 327 P.2d 349 (1958). Where irrigation district entered into agreement with school district to place irrigation ditch in an underground pipe and to construct a cement inlet collar and safety/trash screen for such ditch to be located on the plaintiffs’ property, this section gave the school district the right to place the ditch underground on its property and gave plaintiffs the right to move the cement inlet collar and safety/trash screen to the back of their property where it would be less offensive to them, at their expense, if the requirements of the statute were met. Abbott v. Nampa Sch. Dist. No. 131, 119 Idaho 544, 808 P.2d 1289 (1991).

Proof of Causation.

Whether liability for diminished water flow was predicated upon negligence, or upon violation of this section, the plaintiff landowners were required to show that relocation of the ditch actually caused a diminished flow of water to their properties since proof of causation is essential to invoke the statute. Allen v. Burggraf Constr. Co., 106 Idaho 451, 680 P.2d 873 (Ct. App. 1984).

Scope.

This section is broadly worded and does not specify that it is only the amount of water to which downstream users are entitled under the water laws of this state which may not be impeded. Savage Lateral Ditch Water Users Ass’n v. Pulley, 125 Idaho 237, 869 P.2d 554 (1994).

Because a servient estate owner can neither decrease the water flow nor cause injury to the dominant estate, this section protects two distinct property rights — water rights and ditch rights; it protects a dominant estate owner from injuries relating to an impediment to water flow, as well as from any other injuries suffered by the dominant estate owner as a result of the servient estate owner’s interference with the ditch. Bratton v. Scott, 150 Idaho 530, 248 P.3d 1265 (2011).

Federal References.

The Carey act, referred to in this section, is the federal desert land act of 1984, codified as 43 USCS § 641 et seq.

Amendments.

This section was amended by two 2019 acts which appear to be compatible and have been compiled together.

The 2019 amendment, by ch. 158, substituted “operated, maintained, controlled or owned by irrigation districts” for “of irrigation districts” near the beginning of the first sentence; inserted “operating, maintaining, or controlling” near the end of the second sentence; and inserted “the persons operating, maintaining, or controlling the easement or right-of-way or” in the next-to-last sentence. The 2019 amendment, by ch. 183, inserted “landscaping, trees, vegetation” near the beginning of the second sentence.

Federal References.

The Carey act, referred to in this section, is the federal desert land act of 1984, codified as 43 USCS § 641 et seq.

Determination of Interference.

An irrigation ditch owner is vested with the discretion to determine whether a proposed encroachment would result in unreasonable or material interference with the easement or right-of-way and, based on that exercise of discretion, is vested with the authority to grant or deny a requested encroachment. The ditch owner may take into account the impact of the encroachment, or encroachments, upon the use and enjoyment of the easement or right-of-way. Pioneer Irrigation Dist. v. City of Caldwell, 153 Idaho 593, 288 P.3d 810 (2012).

Removal.

Four conditions must be satisfied before an encroachment “shall” be removed. First, the encroachment must have been constructed after the effective date of this section. Second, the encroachment must have been constructed without permission. Third, the encroachment must unreasonably or materially interfere with the use and enjoyment of the easement or right-of-way. Fourth, the ditch owner must request that the party responsible for the encroachment remove it. Pioneer Irrigation Dist. v. City of Caldwell, 153 Idaho 593, 288 P.3d 810 (2012).

Review.

An irrigation ditch owner’s decision to request removal of encroachments, constructed without permission, or to, thereafter, remove offending encroachments shall be subject to review to determine whether a reasonable decision-making process was employed, and whether the decision was arbitrary and capricious or based upon clearly erroneous findings. Pioneer Irrigation Dist. v. City of Caldwell, 153 Idaho 593, 288 P.3d 810 (2012).

Rights of Possession.

Irrigation district does not enjoy exclusive rights in its primary easements and rights-of-way. Rather,§ 42-1102 only contemplates a right-of-way for cleaning, maintaining, and repairing canals. That section provides notice to owners of land that the owner of the ditch or canal has the right-of-way and serves to clarify what the right-of-way includes. Pioneer Irrigation Dist. v. City of Caldwell, 153 Idaho 593, 288 P.3d 810 (2012).

Rights of Water Users.