December 31, 1965.
APPEAL FROM EIGHTH JUDICIAL DISTRICT COURT, KOOTENAI COUNTY, CLAY V. SPEARS, J.
Smith, Kimball Reed, Coeur d'Alene, for appellants.
Thomas A. Mitchell, Coeur d'Alene, for respondent.
An irrigation district which purchases water rights, ditches and canal system must necessarily take subject to all duties and burdens of which it had notice against the grantor. Knowles v. New Sweden Irrigation District, 16 Idaho 217, 101 P. 81; Payette Lakes Protective Association v. Lake Reservoir Company, 68 Idaho 111, 189 P.2d 1009.
Where withdrawal of water from lake is intermittent, statute of limitations does not run except from each periodic withdrawal. 5 A.L.R.2d p. 328; Payette Lakes Protective Association v. Lake Reservoir Company, 68 Idaho 111, 189 P.2d 1009.
All waters of state, when flowing in their natural channels, including waters of all natural springs and lakes, are property of State of Idaho. Idaho State Constitution, Art. XV, Sec. 1; Short v. Praisewater, 35 Idaho 691, 208 P. 844.
Where waters are insufficient for service of all desiring the use, those using water for domestic purposes have preference. Idaho State Constitution, Art. XV, Sec. 3.
Although riparian rights have been abrogated in Idaho, the riparian owner still retains such rights as to have the water flow by or through his property and may protect self from interference. Jones v. McIntire, 60 Idaho 338, 91 P.2d 373; Hutchinson v. Watson Slough Ditch Company, 16 Idaho 484, 101 P. 1059.
The continuing right to heirs and assigns of a right in water in connection with land is guaranteed. Idaho State Constitution, Art. XV, Sec. 4.
Water is essential to development of State of Idaho and is the property of the State who shall supervise its use to those who will apply it to a beneficial use without waste. Idaho Code, Sec. 42-101; Bennett v. Twin Falls Northside Land Water Company, 27 Idaho 643, 150 P. 336; In re Robinson, 61 Idaho 462, 103 P.2d 693; Reynolds Irrigation District v. Sproat, 69 Idaho 315, 206 P.2d 774.
The policy of the law of Idaho is to secure the maximum use and benefit of its water resources. Idaho Code, 18-4302; Idaho Code, 42-104; Idaho Code, 42-222; Mountain Home Irrigation District v. Duffy, 79 Idaho 435, 319 P.2d 965.
The policy of the law of Idaho is to prevent wasting of water and to prohibit use of more than good husbandry requires. State v. Twin Falls Canal Company, 21 Idaho 410, 121 P. 1039, L.R.A. 1916F, 236; In re Robinson, 61 Idaho 462, 103 P.2d 693.
Water rights are included within the definition of real property and pass with the land. Idaho Code, Sec. 55-101; Ireton v. Idaho Irrigation Company, 30 Idaho 310, 164 P. 687.
The restrictive covenants contained in agreement with landowners and irrigation company granted an interest or benefit to respective landowners' land and were binding and enforceable by successors in title to landowners against successor irrigation company. Murphy v. Kerr, 8 Cir., 5 F.2d 908, 41 A.L.R. 1359, and annotation commencing p. 1363; 127 A.L.R. 835, commencing 836; Shaber v. St. Paul Water Co., 30 Minn. 179, 14 N.W. 874.
Fact question of low lake level may be reviewed. Payette Lake Protective Association v. Lake Reservoir Company, 68 Idaho 111, 189 P.2d 1009.
Where predecessors to parties have entered into a restrictive agreement which covenants are binding on their successors, injunction is proper remedy even without showing of substantial injury. Payette Lakes Protective Association v. Lake Reservoir Company, 68 Idaho 111, 189 P.2d 1009.
Augmenting, directing, or acceleration of water flow from natural state by man-made improvements is contrary to the right of adjoining lakeshore property owners. I.C. 42-1204; Smith v. Big Lost River Irrigation District, 83 Idaho 374, 364 P.2d 146.
The continued and uninterrupted use of water for a period of more than five years constitutes a valid appropriation. Short v. Praisewater, 35 Idaho 691, 208 P. 844; Idaho Const. Article 15, Secs. 1, 3.
Idaho recognizes two methods, the "constitutional", or "application", method, and statutory method of acquiring a water right. Nielson v. Parker, 19 Idaho 727, 115 P. 488; Furey v. Taylor, 22 Idaho 605, 127 P. 676; Speer v. Stephenson, 16 Idaho 707, 102 P. 365; Reno v. Richards, 32 Idaho 1, 178 P. 81.
Once water has been appropriated for agricultural use under sale, rental or distribution, such sale, rental or distribution is deemed a conclusive dedication to such use and once such waters are distributed to persons who have settled or improved land for agricultural purposes, such persons cannot be deprived of the annual use of the same without their consent. Idaho Const. Article 15, Sec. 4.
After a permit has been granted and before license issues, there is a procedure whereby any person desiring to protest can be heard, and following such hearing, anyone aggrieved may appeal to the District Court for hearing de novo. I.C. 42-224.
There is provision in our statutes for the creation of water districts and appointment of water masters etc., but only when the stream or water supply involved has been adjudicated by a court having jurisdiction thereof. I.C. 42-604.
Idaho's statutes provide for a procedure upon failure of appropriators to maintain headgates and measuring devices, and the proper party to enforce any failure to so maintain is the Department of Reclamation. I.C. 42-701.
Idaho has a statute governing procedure for adjudication of water rights, as concerns priority of rights, and the statutory authority also provides the manner in which decree shall be entered, allowance for supplemental adjudication, and allowance for extending six years to an appropriator to use any waters not being applied at the time of the adjudication. I.C. 42-1401-1405.
This is an appeal and cross-appeal.
Twin Lakes Improvement Association, a corporation, a plaintiff-appellant herein, commenced this action against the East Greenacres Irrigation District, referred to herein as the District, to stabilize the water level of Twin Lakes, located in Kootenai County. Twin Lakes Improvement Association represents approximately 600 owners, lessees or purchasers of property and cottages adjacent to or nearly upper and lower Twin Lakes. East Greenacres Irrigation District, which encompasses about 1539 acres of land owned by about 145 members, has a permit for 45.74 cubic feet per second of the waters of Twin Lakes. Most of the District members live on 5- to 10-acre tracts approximately 8 to 10 miles below the outlet of lower Twin Lake.
Spokane Valley Land and Water Company, a corporation, referred to herein as the Spokane Company, prior to the year 1921 had a water right of 500 cubic feet per second of the waters of Twin Lakes, which water was transported by that corporation through its canals. In 1906 the Spokane Company and the owners of the lands adjacent to Twin Lakes entered into an agreement whereby the Company, in exchange for certain rights, agreed that it would not elevate the water level of the lakes above certain designated marks, one of which was chiseled in a rock situated at or near the outlet from the upper to the lower lake and another chiseled in a rock at a point on the lower lake. The Spokane Company also agreed not to lower the level of the lower lake below a point one foot above the extreme low water mark as it existed in the fall of 1905.
In 1921 the District acquired by condemnation, title to the Spokane Company's water rights, laterals, ditches and diversion works. The District did not condemn those lakes level rights of the Twin Lake property owners described in the aforementioned agreement.
Appellants contend that the District is not putting the water to beneficial use and is permitting excessive waste in the laterals and ditches; also, that it is violating the 1906 agreement between the Lakes landowners and the Spokane Company. The appellants urge that the District, by virtue of the condemnation action, is bound by that agreement.
The record shows the water is used by members of the District for irrigation and domestic use. The contention regarding excessive waste of water by the District is related to the loss of water in the laterals and ditches during transportation of the water. The record shows a substantial loss of water in the ditches through seepage and evaporation but that such loss is normal. The District periodically distributes large quantities of clay in the water for the purpose of sealing the ditches but has not otherwise sought to control such loss of water.
The trial court, sitting without a jury, found and concluded that the District was not a successor to Spokane Company so as to be bound by the 1906 agreement. The court, by its judgment entered in favor of the District, adjudged that the District may raise the water level of the two Twin Lakes as nearly as possible to 11 1/2 feet "measured at the staff gauge at the outlet of Lower Twin Lake." The judgment in effect permitted the District to raise the water level of the lakes by some one and one-half feet above the level fixed by the 1906 agreement. The appellants have appealed from that judgment.
The prior owners of the property, having entered into the agreement relating to water levels of the lakes, thereby acquired the right to have the levels of the lake waters maintained at the levels and for the purposes set forth in the agreement.
The purposes set forth in the agreement are clearly for the benefit of the land and the use and enjoyment by the landowners as benefited by the agreement. Such a covenant is one running with the land.
"In order that a covenant may run with the land, it must respect the thing demised, and the act covenanted to be done or omitted must concern the land or the estate conveyed. There are many cases to the effect that the question whether a covenant will or will not run with the land does not depend so much on whether it is to be performed on the land itself as on whether it tends directly or necessarily to enhance its value or render it more beneficial and convenient to those by whom it is owned or occupied, and that if this be the case every successive assignee of the land will be entitled to enforce the covenant, * * *." 15 C.J. Covenants § 54, p. 1240.
See also Shaber v. St. Paul Water Co., 30 Minn. 179, 14 N.W. 874 (1883); Gould v. Partridge, 52 App. Div. 40, 64 N.Y.S. 870 (N Y 1900); Brush v. Lehigh Valley Coal Co., 290 Pa. 322, 138 A. 860 (1927).
That such an agreement could be entered into and enforced was the issue in Payette Lakes Protective Ass'n v. Lake Reservoir Co., 68 Idaho 111, 189 P.2d 1009 (1948), wherein this court said:
"The parties having reached agreement and entered in to the contract set forth and sued upon, are estopped to deny its general nature and force and effect, and must act in accordance with such agreement and understanding. Saunders v. Robison, 14 Idaho 770, 95 P. 1057. Restrictive agreements of this nature are legal." 68 Idaho at 121, 189 P.2d at 1014.
To enforce these rights, it is said in 21 C.J.S. Covenants § 82:
"Where a covenant runs with the land, the owner of the land at the time of its breach, whether an immediate or remote grantee or assignee, may maintain an action for its breach in his own name against any or all of the covenantors, although the holder of a real covenant can have but one satisfaction for its breach."
As to the property owners herein, the agreement is valid and binding upon the District. The trial court was correct in finding that this was a class action, the effect of which would be enforceable against or on behalf of those having similar rights. I.R.C.P. 23(a).
Bearing upon their contention that the District wastes irrigation water, appellants assert that the trial court erred in finding that water seepage in the District's laterals and ditches was within normal limits.
There is conflicting evidence relating to loss of water during transportation by virtue of the District's operation and maintenance of its laterals and ditches. The trial court was required to make a finding on this issue of alleged excessive waste and such finding that the seepage was within normal limits is supported by competent though conflicting evidence.
"This Court has repeatedly held that where conflicting evidence is submitted to a trial court sitting without a jury, either as a court of law or as a court of equity, the findings of the court on questions of fact will not be disturbed, where there is competent evidence to support them." Checketts v. Thompson, 65 Idaho 715, 718, 152 P.2d 585, 586 (1944).
The trial court made a finding that the elevation of the water in the lakes could be raised without causing damage to the property of the adjoining owners. Raising the water level would be contrary to the agreement. Interference with the level of the lakes must not result in actual damage to the property owners. The effect of any alteration of the high water level may be presented to the trial court for its consideration.
Appellants seek to establish a minimum water level for the lakes. The agreement provided for a level of one foot above the extreme low water mark of the lower lake as it existed in the fall of 1905. There is no evidence in the record establishing a fixed mark or point for this low level. There was some evidence in this particular as to what one person recalled having seen as a small boy. That evidence, however, is so tenuous that it would not be supportive of a finding. That such a low level was contemplated by the parties to the agreement is expressly stated in the agreement. A low water level must be established by the trial court in light of the agreement. It appears that conflict in the premises between members of the District and those represented by the Association has existed since 1930. The trial court in its attempt to resolve these problems sought to provide a solution. Continuing jurisdiction of the trial court will provide further opportunity to effectuate a resolution of the differences.
The judgment is reversed and the cause remanded for further proceedings consonant herewith.
Costs to appellants.
McFADDEN, TAYLOR and SMITH, JJ., and FELTON, D.J., concur.