Elmore bulletin. [volume] (Rocky Bar, Idaho) 1889-1906, 1899-01-05
The Cold Springs Water Case
in the Supreme Court.
From the Boise Statesman.

al, pellants, VS.. James Stanfeld, ct
al, respondents, from Gilmore county,
the judgment of the district couss has
been reversed. The case involves the
right of the partners to the use of the
waters of Cold Springs creek.
The opinion, by Justice Huston, in
part.
The district court finds in it's fourth
finding of fact: THAT lands upon
which wild hay is raised or which ape
irrigated for pasture only do not re-
quire, in the vicinity of Cold Springs
creek water to be used thereon later
than July LIST OF each year" The only
evidence we find in the record upon
this subject is found in folio 276, of the
record and is as follows: cit has been
the custom of the plaintiffs and of the
other parties to this suit using water
Tor irrigation from the stream, to turn
the water out upon the land as early
in the spring of the year as the frost
left the ground, and with the excep-
ton of the intervals between irrigating
periods and while removing the crops
from the land, continue the use of the
wa er until the ground froze in the
fall. We do not think this evidence
supports the said fourth finding. We
are of the opinion that so long as the
Appropriation of water applies the same
to beneficial or useful purpose, he is
the Judge within the limits OF his APP
preparation, of the times when and the
place where the same shall be used.
! Upon the trial the defendant, STAN
| field, was permitted, over the objectiqnl
of the appellants, for the purpose pf
establishing priority of appropriation
of the water of Cold Spring creek to
show the following facts: THAT prior
to May LIST 1869, Jacob Slower and Ely
Montgomery settled upon the land
afterwards known as the Cold Spring
ranch, now owned by the defendant,
Stanheld, and made improvements
thereon. In the spring of that year
they constructed a ditch and diverted
from Cold Spring creek quantity of
water sufficient for the irrigation Of
these lands, the quantity actually used
needed and required upon the land
under cultivation and for hay, being
1870 inches, measured under four
| inch pressure. Slower aud Montgo-
iiti S'btiluSd III B''SSCScioh Va viz
land, using said amount of water in
the cultivation thereof until the spring
of 1875 at which time they sold the
Improvements on the land to o. S.
Glenn for the consideration Of $4,000.
No papers were executed nor was any
transfer or conveyance in writing
made by Slower and Montgomery, or
either OF them to Glenn of the land
the improv ments thereon or the wa
ter rights appurtenant to or used with
said land, neither was there any evil
dence of a transfer or conveyance in
writing by Slower and Montgomery OF
either of them to any grantor or pre-
decessor in interest therein or OF the
improvements thereon or of the water
rights appurtenant thereto"
Appellants assign the action of the
court in permitting said defendant
over the objection of plaintiff to estab
lish title to the land and the waite
right appurtepant thereto by proof o
an oral transfer, as error. Possessor,
title to public lands have been defined
by the statutes of Idaho as real estat,
since the organization of the territory
and the following provision in sub
stance has been in the statutes Of Ida
} no since the laws of the first session o
I the territorial legislature. Sector
l 6007; "No estate or interest in rea
: property, o'her than for leases for
Q term not exceeding one year, nor an
trust or power over or concerning i
or in any manner relating thereto Cal
= be created, granted, assigned, surren
y dered or declared, otherwise than b
D operation of law, or a conveyance c
3. other instrument in writing, subscrib
;. ed by the party creating, granting
: assigning, surrendering or declarin
1 the same, or by his lawful agent Their
+ unto authorized by writing"
"a Under the statutes we are unable
hold that title to real estate or an in
terest in real estate, can be establish
i ed by proof OF verbal transfer. II
water right of the defendant, Stanfiel
/ dates from the time when Glenn wei
:. into possession under his purchai
: from Slower and Montgomery ar
10 commenced to use the water. Cour
Y sci for respondent cities several deci
AZ ions in support of the contrary CO.
t. tention, but as it does not appear tn
&c they were made under statutes simil
d. to ours, we can hardly ACCEPT them
e. authority for abrogating our own st
h tutes,
~ What we have here said applied
:. we'll to the proof offered by the &,
W ', PENDANT Ida McGlnness, in relation
u her claim, o.wit: A verbal transl
as from Harvey Glenn. The deed su
RS sequently procured by her from Glen
s. some Ia years after he had left t
er country could only have effect fro
re its date.
~ The judgement of the district COZ
No is reversed, and the cause remand
to the district court with instructic
to correct fits findings OF TACT, a
al modify its decree in accordance W
u the views herein expressed.
,rt Sullivan, G. ]. and Quarles, j. c,
Ia cur.
la,
H. oon Coo &c vo,, oon