Idaho news. (Blackfoot, Idaho) 1887-1891, 1890-05-31
RIPARIAN RIGHTS.
Prior Appropriation of Water. Findings.
tsupreme Court of Idaho. March 5, $500
Ia the Case of DRAKE ct al. .,
EAR{fART. Appeal from Dis
tl'ict Court, 41ItRFas County.

ehi ~ NuisSCutihS'y AuiS AStAOh
was brought in the court below to re-
strain the defendants from the use Of
any of the waters of stream in Quig-
ley gulch, on the east side of Wood
river, and near the city of HALEY.
The plaintiffs sue jointly, as prior APP
perpetrators Of the water of that stream
for agricultural purposes. The de
tendapts are occupants of lands living
above the plaintiffs on that stream,
and through which lands of the de-
PENDANTS the stream runs. Judgment
was given for the plaintiffs, declaring
them jointly to be the absolute town.
ers of, and entITled to the use of, all
the waters flowing in Quigley gulch,
ET thout reference to its amount, or to
the purposes for which it was diverted,
drowned by them, or is to be used;
and the defendants are, and each of
them is enjoined from diverting or
using any of the waters OF said stream;
and for costs against the defendants,
in the sum of S27O. There was no
motion for new trial, and no state
ment of the case made, and the case
comes up upon the judgment roll
alone. 1t is claimed that the judgment
roll discloses errors for which the
judgment should be reversed, and that
the judgment in itself is erroneous, in
declaring the plaintiffs the exclusive
owners of all the waters of the stream.
and restraining the defendants from
any use thereof, notwithstanding it
discloses that the water flows through
the lands of the defendant Earhart. ("
shall attend, firstly TO the first
point made, namely that the judgment
roll discloses errors for which the
judgment should be reversed. A lib
eral construction of the complaint
may, perhaps, warrant the findings of
fact made by the. court, though it
goes no further than that 1t claims
that the stream carries ia inches OF
water. The findings of fact are as
follows; ''(1) In the autumn of the
year 1879, William G. Quigley located
a piece of government land near the
mouth of Quigley gulch, in the Wood
River valley, in the county of Alturas
and territory Of Idaho. The land be-
ing then unsuryeyed public domain,
he was at that time unable to pur-
chase the same from the United States,
but after wards, upon the same being
surveyed and coming in the market,
he and the plaintiff Drake, to whom
Quigley had sold part of the lands
originally claimed by him, entered
the same at the United States land
office at HALEY and afterwards took
patents therefor In said year 1879,
said Quigley took out of Quigley creek
a stream flowing in said gulch, by a
ditch built by him upon said land, all
the waters flowing therein, and caused
the same to flow upon a portion OF
said land, and in the same year bull
a house, and continued TO reside OF
said land from that time until tn.
commencement Of this action. A
the time of appropriation OF said watel
as aforesaid, said Quigley posted /;
notice at the point of diversion Of
said water in which he claimed 6O(
inches of the water of said stream TO
agricultural purposes; that said stream
carries $50 inches of water. ~ After
wards, and before the commencement
Of this action, the plaintiff Drake sue
ceeded to one-half of all the water
claimed and owned by said Quigley
and the plaintiff Covert succeeded /,
the other half thereof; and said plain
tiffs Drake and Covert and said Quig
ley continued, except for the trespas
and unlawful diversions of SAID waite
by the defendants hereinafter men
toned, TO uninterruptedIy use th
waters of said stream for agriculture
purposes upon the land before men
toned. 81 That some time in tn
year 1855, before the commencement
of this action, plaintiffs Drake an,
Quigley sold small quantity of SAT-
water to the Oregon Short Line Rail
way Company for water supply a
its station a. HALEY. (4) At seyera
times since the year 1881, parties no
connected with this suit have, for tn
purpose of supplying certain brick
yards situated near said stream, take
small quantities of the water thereo
TO supply brick-yards for short period
of time, in some instances with th
consent Of Quigley while he was al
owner thereof, and at other time