The Caldwell tribune. [volume] (Caldwell, Idaho Territory [Idaho]) 1883-1928, 1919-10-24
Judge Dietrich Sets Aside Ale
cations Of Prior Rights Made
By Henry Gnffiths, Local
Attorney.

L
legally continue the construction of |
the Black Canyon project to reclaim
about 6OOO acres of land lying north |
of Notus is the opinion of Judge +. 5.
Dietrich of the United States district
court in an opinion handed down re-
Gently at Boise. 1t will be remember
ed that last spring, Henry Griffiths, a
local attorney, endeavored to halt the
construction on the ground that he
had prior rights to both water and
the right of way.
After summarizing the case, the
codrt continued:
1T having become apparent that the
reclamation officers intended to pro-
coed with construction upon the right
of way selected, Henry Griffith insti-
tuted this suit for injunctive relief.
Some Of the grounds upon which. he
relies are not clearly defined, bat
apparently he makes three principal
contentious: First, that he has SUI
perior, If not the exclusive, right to
use the water in question. Second,
that the defendants, by their conduct
and threatened construction of the
proposed works, will wrongfully pre-
vent him from carrying out his plans.
anu lltlIOs that lIlC 0CkCnoontS nay
given out and threatened that they
would occupy and construct their
canal in, part upon his right of way,
to his great damage. 4 % + 2 i.
As already announced from the
bench, il is not thought that the suit
can be maintained for the purpose of
adjudicating the rights of the parties
to the water, For present purposes, il
will be assumed, though not decided,
that the plaintiff has an incipient
right to appropriate at least part
of the water flowing in the. drainage
channels, and that by complying with
the statutes and the conditions of his
permit he may complete and perfect
such right. But admittedly neither
claimant has as yet applied the water
to a beneficial use or is ready to make
such application, and no one can
maintain the possession of water or
withhold it from the possession or use
of another unless he himself is ac-
tually using or is ready to use II for
beneficial purposes. In Idaho one
does not own water. He can acquire
only the right to use for beneficial
purposes, and whatever the dignity Of
his right, he can withhold possession
from another only when and so long
as he has need. Neither party here Is
interfering with or threatening in the
immediate future to interfere with the
other party's use, and in a sense the
right of each is inchoate only, for
neither as yet has the means by which
the water may be conveyed to the
place of intended use. To perfect the
right there must be application tc
beneficial use, and it is entirely pos.
sible that the one who now seems to
have the better incipient right may
abandon il entirely or may lose his
position of superiority.
"Nor is it thought that there is any
Substantial ground for the plaintiff
second contention. If the reclamation
service. acting through the defendants
is engaged in an enterprise not au
thorized by law, it is matter Of
which the plaintiff cannot complain
unless in some way his property right.
are infringed. AS already stated, hi.
use of the water is not being inter
fered with, for whatever his potentia
/. rights, he cannot use the water now
or in the immediate future. The de
PENDANTS are not interfering with OF
encouraging the breach OF any con
tracts which the land owners ma,
have made with him, for he has nc
such contracts. To be sure, if tn,
Black Canyon lands are supplied witt
water by the reclamation service, thel
will not be available for the plaintiff,
proposed system. but they have NJ
vested right in the premises TIL,
district and the land owners therein
are at liberty to secure water iron
such sources as they may choose, o.
may decline to purchase water at all
They are not bound to give fruition Il
hopes or expectations on the part o
the plaintiffs.
"The other ground. and the onl,
substantial ground, for equitable relic
exhibited by the bill, is found in tn,
charge that the defendants are in
terfering with and threatening to oc
cupy the right of way selected by tn,
plaintiffs for their canal. It was upoi
this ground that temporary injunc
ton was Professionally ordered. TIL,
seriousness of the issue is out of pro
portion to the inherent value of tn,
land required for a right OF way, TO
the reason, as already explained, tina
for short distance along the steel
hillside it is feasible to construct bu
one canal. and the two projected sys
TENS having slightly different elcva
tions. the construction of the one will
practically exclude the other.
The first contention urged by tn,
plaintiffs is that the reclamation serv
ice is without the power to engag,
in the proposed enterprise. and tina
therefore the defendants can neither
occu-" right of way under the pro
visions of the act Of August 30. 1890
supra. nor have the benefit of statute.
in eminent domain. 1t must be ad
mitted that the legal authority is no
clear, but under the peculiar circum
stances of the case it is thought tn,
doubt. serious though it may be
should be resolved in favor of tn,
service. The water in question is t.
be carried through the proposed cana
for the irrigation of lands now private
ly owned, ii is true, but lands which