The Idaho Republican. [volume] (Blackfoot, Idaho) 1904-1932, 1923-01-11

is the son of King Hillman, one of
the early settlers of southern Idaho,
who appropriated the waters of
Gooseberry creek, near Oxford a
long time ago and was disturbed by
other settlers who took up lands
above him and kept cutting off his
water until he brought suit to stop
them. That was in territorial days
and it was something new in juris-
prudence in Idaho for a man to be
asking for official regulation Of
water. The case came up before
Judge Berry, who was sent out from
Iowa by President Cleveland, and he
came with exalted ideas about how
he was going to regulate ways Of liv-
ing and doing things.
Judge Berry had about as clear a
comprehension of water case as
the average judge now would have
about case brought to regulate the
air. If somebody asked the court
for an injunction to keep the wind
from blowing across his farm, or for
an aerial road out thru another
mans blue sky, and these rights
were contested in court by witnesses
who told of the plentiful supply of
air passing given point at different
times Of the season, it would prob
ably mean just about as much to
him as did the testimony of the wit
ness regarding water in Gooseberry
creek to Judge Berry.
Between sessions of court at
Blackfoot, Judge Berry took a trip
to Boise and saw something of the
state lying along the railroad track
and the stage or bus line into Boise.
At the crossing of the old bridge
over the Boise river he looked out
upon the flood rushing by and was
told that the bridge was in some
danger of being washed away. He
thought it strange that one man
should be suing another for water
when there was so much of it. OF
course King Hillman lived at Oxford
and Gooseberry creek was on the
headwaters of streams flowing
towards Great Salt Lake, but water
was water to Judge Berry and he
could not see why men should be in
litigation over water when there
was too much of it and liable to
wash bridge away.
On his return from the trip to
Boise he met King Hillman who was
impatient to get decision on his
case so he could have all the waters
of his creek turned down thru his
own bitches to irrigate his wild !
meadow that was in need of water
if he was to cut full hay crop. The
fellows on the creek above him were
taking the water.
Judge Berry was further puzzled
at the mans anxiety, for it had been
stated in court by one of the wit
nesses against Hillman, that he, the
witness, had walked out over the up
per end of Hillman's place when the
snow was going off, and there was
too much water. He said he needed
hip boots or boat to get around in.
The fact that there was flood of
water in March and only little in.
May at irrigating time, and less in
June and July and very little in
August, did not register keenly with
the judge, and he told Mr.. Hillman
that his case was not at all import
ant and there was no hurry about a
decision. Then he added, ''Why Mr..
Hillman, just as sure as stand here ..
and you stand there, the Boise
bridge is going out"
Hillman was exasperated, and !,
walked away nursing his anger. He |
had just about made up his mind
% buy some new tangled haying ma
,hinery for loading and stacking :;
'apidly with horse power, and it :
iawned upon him that he might not j
lave much hay to stack. He went !
back and told the implement man !
hat he would withhold his order
Until the hay crop was assured, and
! few weeks later he wrote the i'm a
Element man to this effect: 81 don't y
want any haying machines l don't =,
want any derrick ropes. l didn't "
let the use of my water this spring =
nd | won't have enough hay to wad :,
mud hole. If l had some new =,
ope 1 might use it for a purpose u
hat the court would not back me up -,
a." W
Hillman and his attorney saw ~,
reat light coming and planned to v
Iait for it to shine in Idaho. 1t was G.
tatehood and the privilege of elect i, ~
1g Idaho men to positions on the ~
ench. They decided to act on =.
Judge Berry's suggestion that there Z,
as no need of hurrying a decision -
n this case, SO they played for more .,
me. Then came the constitutional - -
invention and the popular election -,
, vote on it's adoption. This was ~
'llowed by the organization of a -''
late government and nominations =.
nd an election of Idaho men to fill j.
laho offices. Judge John T. Nor !.
an of Blackfoot was the attorney i
IT Hillman, and as the years drag !.
I'd on, the case went up on appeal
the supreme court of the state
y the time it reached a hearing
ere, Judge Morgan was chief tn
stice, and here was his own case, ba
lie of the first water cases ever M,
ought in this state, coming on for
caring. OF course he was disquali- Sh
ID, and Judge J. w. Huston, who
ID recently retired from the posi- MI
IN of chief justice, was called to Fa
in the case in Judge Morgan's
ace, and Hillman received decree sol
r the peaceful possession and right Su
use all of the waters of Goose
rry creek and it's tributaries. The six
so ri 1ro Opad lon in fJ,o oo,rtc ! = y,