The Grangeville globe. [volume] (Grangeville, Idaho) 1907-1922, 1912-07-11
WATERS WITHIN BORDERS OF
STATE BELONG WHOLLY TO 1T
Important Decision Given by Supreme Court Opposing D
version of Waters From Idaho
Streams

The supreme court in an opin-
ION written by Judge Ailshie, has
just rendered an important de-
clsion IN case involving the
states exclusive right to the wa
ters within its borders, an issue
never before touched upon.
Case of Importance.
State Engineer Robinson, act
ing under authority of the state,
prosecuted the appeal in this case
which involves an issue never
before ruled upon by the supreme
court, to-wit: the right of the
state to the water and the streams
within its borders and which flow
into other states. Justice Ailshie
has the concurrence in his opin-
ion of Chief Justice Stewart and
Justice Sullivan. Reciting the
facts in the case, Justice Ailshie
says:
This is an appeal from an or
der granting a writ of mandate.
On the 9th of November, 1909,
respondents made application to
the state engineer for a permit
to appropriate water from Bear
creek, which is a branch of the
/ Clearwater river situated in Ida
no county. This application was
made for the diversion of waters
to be carried beyond the water
she'd of Bear creek and applied
to the purposes of irrigation in
the state of Montana. The per-
NIT was subsequently issued and
was numbered 5494. Prior to
the issuance Of this permit, a
similar permit had been granted
to one George +. Weisel for the
diversion of waters from Bear
creek to be carried across the
lines and used in the state of
Montana, and permit No. 5445
had been issued. Subsequent to
the issuance of these permits, a
contest was filed by the respon-
dents. and after hearing the
state engineer refused to take any
action on the matter or grant
any relief to either of the parties,
upon the ground that in issuing
the permits he had exceeded his
lawful authority in attempting
to grant right for the diver
sion of the waters of this state
to be applied to a beneficial use
in another state. Thereafter the
respondents herein represented to
the state engineer that they had
constructed their diversion works
as required under the application
and permit, and were prepared
to make proof of completion Of
the work as required by law, and
asked that notice be given of
the hearing and that they be
given a certificate of the com
pletion of their works. The state
engineer refused to give notice
or take any action in the matter,
on the ground that he had no
legal authority to grant such a
certificate. This suit was there
upon instituted.
"The question here arises as to
whether a lawful appropriation
and diversion of the waters of
this state can be made for appli-
cation to a beneficial use in an
other state. First of all, it should
be remembered that Bear creek
is not an interstate stream. 1t is
located wholly within the state
of Idaho and does not reach into
the state of Montana, and so no
question of the appropriation and
diversion of the waters of an in
terstate stream for use either in
this state or in a neighboring
state arises in this ease. We de-
sire at the outset to also observe
that whatever may be said in
this opinion shall not be under
stood or construed as passing up
on or indicating any view of this
court on the question of the right
to divert the waters of a stream
in this state and carry it beyond
the watershed of that stream and
apply it to a beneficial use out