The Caldwell tribune. [volume] (Caldwell, Idaho Territory [Idaho]) 1883-1928, 1914-08-14
INDIAN CREEK WATERS
BELONG TO THE
BOISE RIVER

The case referred to in the last is
sue of The Tribune involving the wa
tiers of Indian creek, was decided in
the district court Friday. Judgment
was rendered in favor OF the defend
ants in the case of the Riverside IT.
rigation Co. VS.. Frank P. King, state
engineer, and E. A. Marsters, water
commissioner. The question involv
ed was the right of the plaintiff to
the use of the waters of Indian creek,
tributary of the Boise river, based
on priority rights. Judge Bryan re-
fused to grant a temporary injunction
restraining the defendant from in
terfering with plaintiffs use of the
water. The court held that the wa
ter il .olved was a part of and be-
ionged to the Boise river.
The syllabus of the court is as fol-
lows:
Under the authorities cited so far
by counsel it seems clear to me that
the waters of Indian creek are part
of the waters of Boise river within the
meaning of the law. Counsel for plain
tiff claim right to these waters by
adverse user. 1t will, however, be re-
membered that plaintiff did not prove
the use of any specific amount of wa
ter before the year 1911. Under the
case OF Farmers Cooperative Irri-
CATION district VS.. Riverside Irriga-
ton district, | think it necessary be-
fore such use can be acquired to show
the amount of water appropriated at
the beginning of the five year period
and used during this period
Charge Waste of Water.
Counsel for plaintiff here contends
that water is wasting past the lowest
ditch on the river and in equity plain
tiff is entitled to the use of this wa
ter. If the proof had shown that the
water was in any considerable guam
tity constantly wasting past the low
est ditch on the river, | would have
no doubts as to the equities of the
case under such statement of the
acts. However, it appears that this
yater has only been measured two
or three times during this season and
at an interval of several days or prac-
tically a week.
Flow of Stream Varies.
Il do not believe that from the
fact that "a or rs feet of water had
been passing the lowest ditch on two
or three separate and distinct dates,
the court would be justified in assum-
sity fluctuate, and | do not believe
the water was not being used. 1t is
| well known fact that the amount of
water used in irrigation by a large
number of water users must of neces-
sity huctuate, and | do not believe
| . he AInN H.
ter was passing all the time by reason
If its having passed on two or three
separate dates.
Upper Rights Affected.
THE assistant state engineer testi-
fed that the officers of the state were
now engaged in systematic policy of
tightening the dams along the river
to prevent the passage of water and
were making satisfactory progress
along these lines. If the dam at the
canyon is frightened so as to prevent
the water passing through such would
take up the water passing these lower
bitches. In that event the upper wa
ter users would necessarily be inter
ested. for the more water turned into
'the river at the mouth of Indian creek
| the less would be required to be TAX
en- from the upper users,
Injunction Denied.
For the reasons above stated, this
court cannot see its way clear tc
granting a temporary injunction
against the state engineer prohibiting
him from lowering the headgates al
Indian creek. l assume, however
that inasmuch as the engineer is con
stantly on the river, that if more wa
ter than is necessary is going from
Indian creek down to those lower
bitches, he will permit as much water
to be turned into plaintiffs ditch a.
he reasonably can and supply the up
per rights"