Montpelier examiner. [volume] (Montpelier, Idaho) 1895-1937, 1911-01-27

M ~ W"S oAC0tAJ Vic LntCHtbOu OI
the trainers of the constitution OF
haho 10 provide that water pre-.
viously appropriated for manefac-
turing purpose, may be appropriat.
"a for domestic use, upon due and
fhir compensation thereof, accord
ihg to one of the most far-reaching
decisions affecting water rights ever
xendered by the supreme court,
Which was handed down Monday
affirmIng judgment of Judgi Alfred
Budge in favor of the plaintiff, in
the case of the Montpelier Milling
Company against the city of Mont
pelier, brought up on appeal from
the Fifth district court for Bear
Lake county.
Attorneys T. L. Glenn and Haw
ley, Puckett & Hawley appeared
fer the city, while A. b. Cough and
Clark d Bulge represented the
company.
This action was brought by the
company for the purpose of obtain
ng an injunction against the city
of Montpelier, restraining that mu-
nicspality from diverting the waters
of Montpelier creek, in Bear Lake
unity, Decree was entered for
the plaintiff and the city appealed to
the supreme court.
Chief Justice Stewart, who writes
the opinion, in which Justice Sui
livan concurs, makes a number of
vital rulings inthis branch of the
law.
Under the provisions Of section 8
article Is of the constitution, etthe
right to divert and appropriate the
Incorporated waters of any natu-
raj stream to beneficial use, shall
never be denied. Priority of appro-
: Priatfon shall give the better right
az between those using waters, but
when the waters of any natural
stream are not sufficient for the SER
vice of all those desiring the use
of the same, those using water for
domestic purposes shall (subjeet
to such limitations as may be pre-
scribed by law have the preference
over those claiming for any other
purpose"
The chief justice holds that "this
section of the constitution declares
that all appropriation of water to a
beneficial use is a constitutional right
and that the first in time is the first
in right, without reference to the
particular use, and clearly recognizes
an appropriation for domestic pur-
poses as superior to appropriations
for other uses, when the waters of
any natural stream are not sufficient
for all those desiring the same, and
that the right to use the water is a
property right, subject to such pro-
visions of the law regulating the TAX
ing of private property for public and
private use as are referred to in Sec
tion IA, article of the constitution
Stewart states corollary to the
first proposition given in the begin
ing of this account and says: "But II
was not the intention of the trainers
OF the constitution to provide thai
. Water, appropriated for manufactur.
ing purposes could thereafter arbit.
rarily and without compensation be
appropriated for domestic purposes ,
This point of the chief justice is vital
Applying this reasoning to the case
at bar Stewart says: "Under the pro,
visions of the above quoted section
of the constitution, a municipality
cannot take water for domestic use
which has been previously appropri
for other beneficial uses, without full.
ly cOmpensatlng the owner, and il
this case 1t clearly appearing that The
tfespondent appropriated the water
Of Montpelier creek and applied it t.
beneficial use prior in time TO the ap
preparation of the appellant, the ap
pellant has not right to interfer,
with such appropriation, to the injury
OF the respondent, without full com
pensation."
The chief justice arrives at a con
clusiOn as TO the merits of the cas-.
Z. from the assumption that "the find
" E&S ia this case show that the res
ikAnNent and its predecessors in inter
~ made an appropriation of 10 sec
4 feet Of the waters flowing ii
i Montpelier creek, in the year 1891
and applied the same to a beneficial
use, and continuously used the sam'
until interfered with by the appel
liant, and that such appropriation wa