Montpelier examiner. [volume] (Montpelier, Idaho) 1895-1937, 1911-01-27
MILLING CO. BEATS CITY
IN CONTESTED WATER CASE
Supreme Court Holds That City Cannot Take
x Water for Domestic Purposes which has
Previously been Appropriated for Other
Uses. without Compensation.

prior In time to@any right of the ap-
pellant and support the Judgment"
The Montpelier Milling company is
engaged in manufacturing flour near
the city of Montpelier, and has for
more than Is years owned -four and
grist mill in that town. The COM
pany's predecessors in interest con-
structed ditch and pipe line in 1891
and appropriated 10 second feet c6
water from the creek to generate
power to operate the mill, and has
continuously used it ever sieee, it
claims. The company also AYERS that
during a large portion of the milling
season, no more than 10 second feet
of water has flowed in the creek at
it's point of diversion, and that it has
used the entire flow of the stream
during all the 15 years for milling
purposes and it claims it is entitled
to the entire flow of the stream when
there is no more than 10 second feet
of water flowing in at the division
point.
The city of Montpelier owns wa
ter works system and has operated it
since April |, 1908, from which it
supplies a large amount of water for
domestic and commercial purposes
The company claims that on that
date the city without any right dh-
verted from Montpelier creek about
two miles above the company's di-
version point, a large quantity of
water, and that the company was
wrongfully deprived of water neces-
sary to operate it's mill for hours
every day for about Is days during
the months of November and Dec4
ember 1908, and in January and Feb-S
ruary 1909, and damaged in the sum
Of $500 thereby.
The city answered that at the time
the milling company diverted the
waters of the creek into it's bitches
and pipe line for milling purposes all
of the water in the creek had been
completely exhausted by former and
prior appropriations for beneficial
uses and there was no water for the
milling company's appropriation and
that the Montpelier Irrigation COM
pany owns and controls water APP
propriated by its predecessors am
ounting to 81 second feet in this creek
which was used between January /,
1854, and June l, 1884, and was de-
creed to the irrigation. company by
the district court on February 20,
1902.
The city is the owner of $50 shares
of stock in the irrigation company,
which entitled it to the use of three
second feet of water, and the city
claims that it now uses and has used
less than one-fourth of second foot
of water since diverting it from the
creek. The city AYERS that it's right
to the use of the water is superior
and prior to the right of the milling
company.
The city contends that the COM
pany's complaint fails to state a
cause or action for the reason that
it is alleged that the appropriation
made by the company was for man
ufacturing and milling purposes,
while the appropriation made by the
city was for municipal and domestic
purposes, and thus shows that the
appropriation made by the city was
superior in right to that of the plain
tiff. The contention of the city is
based upon the constitution, which
says specifically that "when the
waters of any natural stream are not
sufficient for the service of all those
desiring the use of same, those using
the Water for domestic purposes shall
have the preference over those using
the same for manufacturing pur-
| poses"
The chief justice considers that on
ly priority of appropriation shall give
the better right as between those
using water, and, in short, holds that
it was not the intention of the franz
ers of the constitution to make an
appropriation of water for domestic
purposes right superior to one made
for manufacturing purposes. Stewart
holds that municipality cannot take
water for domestic purposes which
has been previously appropriated for
other uses, without fully compensat-
ing the owner.