Southern Idaho Fish and Game Association v. Picabo Livestock Co.

No. (Idaho Dist. Ct. June 15, 1972)

An owner of land under a patent expressly "subject to vested and accrued water rights for mining, agricultural, manufacturing or other purposes" may not bar members of the public from using the stream for fishing and boating purposes. The state ought to regulate fishermen's use of a particular stream, but even in the absence of such regulation, the land owner cannot prevent members of the public from using the stream.

Counsel
Edward Heap
P.O. Box 349
Ketchum, Idaho 83340

Benoit & Alexander
Bank & Trust Building
Twin Falls, Idaho 83301

Anderson, Kaufman & Anderson
503 Idaho Building
Boise, Idaho 83701

[2 ELR 20472]

Scoggin, J.

This matter was tried September 29, 1970. The court waited for briefs to be filed and finally set the matter for oral argument, giving to counsel the right to file their written briefs on or before the date set for argument. The oral argument too had to be continued for several weeks because of extraordinary circumstances and at the request of respective counsel. So, at long last, being both a farmland owner and a fisherman, it is with a great deal of trepidation I have looked into this matter in depth and with some misgivings as to the respective rights and privileges of the parties; and to some extent I think both sides should prevail as to their respective rights and privileges and without basic conflict in their exercise over the other.

The defendants put great weight in the fact that their predecessors in interest patented this land (as shown by Defendant's Exhibits 8 through 18, inclusive), the patents running from President Benjamin Harrison in February, 1893, to Theodore Roosevelt in October of 1905. In reading the patents there seems to be one common clause, namely, the exception clause, which reads as follows: "subject to any vested and accrued water rights for mining, agricultural, manufacturing, or other purposes, and rights to ditches and reservoirs used in connection with such water rights as may be recognized and acknowledged by the local customs, laws, and decisions of courts, and also subject to the right of the proprietor of a vein or lode to extract and remove his ore therefrom, should the same be found to penetrate or intersect the premises hereby granted, as provided by law, and there is reserved from the lands hereby granted a right of way thereon for ditches or canals constructed by the authority of the United States."

It is my view that the words "subject to any vested and accrued water rights for mining, agricultural, manufacturing, or other purposes", namely, fishing, gaming or fowling, is a specific reservation "as may be recognized and acknowledged by the local customs, laws, and decisions of courts", and the patents did not, therefore, pass any property rights in the natural water courses but reserved the same subject to other purposes and actions as customarily exercised in the area, and that the words actually mean something.I think this has been borne out by time itself in that this stream generally known as Silver Creek has become one of the most famous trout streams in the world, and both sides testified that it is a famous trout stream. Hence, even granting the defendant's argument that he owns the land, including all riparian rights, to the point that others could not even float down the surface of this natural water course without his permission, this is purely and simply an expansion of the past historical use by the defendant and one never claimed by his predecessors because it had been used generally as a stream for fishing for many many years; and if this is not a right, at least it is a privilege now established, based upon the custom and use over many years. Further, defendant and his predecessors have admitted this by filing for reservoir rights and water rights under general laws and rules of regulatory bodies of the State of Idaho and have abided by the general declaration in our constitution that all waters are the property of the state; and this court is required to hold that the public has a right to use these waters for recreation as well as for commercial navigation, impounding, and application to beneficial use under proper licensing and regulation under the general reclamation statutes.

The next matter the court feels should be determined is the question of navigability. This stream varies from one hundred sixty-five feet in width to four hundred twenty feet, and in depth from two and a half feet to eighteen feet, and, according to the testimony, would average four and a half feet. The stream did, in fact, float logs, which has been the old type proof of navigability, although the cases generally required that a stream be of commercial value in so doing. However, it is this court's view this was just one of the rules or guides to determine navigability of a creek and that this court is clearly, under past decisions and statutes, not bound by the common law cases in this regard. I appreciate that the cases hold a statute cannot make a non-navigable stream navigable, but by the same reasoning the lack of a statute holding a navigable stream to be navigable does not make it non-navigable. From the proof here offered there is no question in my mind but that this stream has been navigable for years and has been used for boating in connection with just the pleasure of seeing the area, and for fishing, trapping, gaming, and fowling, those various attributes for which the river is a "natural". People from all over the world have fished this stream as tourists and guests of Sun Valley, and local and state residents have likewise always used and enjoyed the stream's attributes.

Further, the Idaho Fish and Game Department has taken a very active interest in the stream, has made studies thereof, and has for a long time planted fish therein and maintained it as one of the important fishing streams in Idaho, without apparent claim adverse thereto by defendant and his predecessors.

It appeared from the testimony of Mr. Purdy on cross-examination that he had purchased his ranch November 1, 1967; that he recognized the commercial value of his stream to the point that he issued special guest cards or trespass permits for a small fee or gave them to friends and guests he invited, and that he ordered all other people off the property and had instructed his employees to do so. This, basically, is a recognition of the use of water "for other purposes" and, indirectly, of the stream's commercial value. I appreciate the fact that these conditions have been brought about by the enormous growth of fishing and tourism and that while defendant's predecessors might have been able to put up with the use heretofore made of said stream, the use made of it got to the point that the overzealousness of some of the people was abusing defendant's rights as a landowner, as well as actually abusing the use of the stream. Defendant's basic rights in the land should be protected, but this I consider a problem of proper law enforcement, which has not kept up with the increased use of this creek. Actually, it is possible, having some quarter million licensed fishermen in Idaho, that they could all wish to use Silver Creek at the same time, and one can imagine the consequences if this were to happen. It is not Mr. Purdy's duty to patrol the stream in order to keep his land from being violated by those whom the State Fish and Game Department has licensed to fish in the State of Idaho; and it would appear to me that if sufficient patrolling to protect the rights of the landowners and other fishermen, and Silver Creek itself, can not be achieved, the Fish and Game Department should perhaps give some thought to issuing special permits to a certain number of people from day to day or week to week to use Silver Creek in order to control the number using it and the manner of its use so it is not abused nor the landowners' rights violated.

[2 ELR 20473]

It would appear to me that when one is granted a license to build a reservoir and store water, he is limited under the application itself to the purposes for which the application was made, namely, to store water for irrigation and beneficial use under the general laws of the state; and it would not follow that he owns the surface of the reservoir or the wildlife or fish therein, nor that he could issue special permits to go over said land or grant the right to use boats and floats or to fish the waters, his right being limited specifically under his application to storage of water and its application to beneficial use as generally provided by law.

It would also appear to me that section 36-901, Idaho Code, which was originally passed in 1919, with several amendments not applicable herein, actually has established itself in all streams within the terms of said statute where there has been a complete abandonment of any specific rights of adjoining land. And in this case, the claim of right not having been exercised until after the purchase by the defendant in 1967, defendant clearly took it subject both to the above statute and the prior use of said creek, and the rights now claimed by him (if any) had long since been abandoned by his predecessors in interest, and the rights of the public had ripened at least into a privilege if not a right of use from custom, as well as under the above statute.

Section 42-101, Idaho Code, which goes back to 1900, with some changes not herein important, is as follows:

"Nature of property in water. — Water being essential to the industrial prosperity of the state, and all agricultural development throughout the greater portion of the state depending upon its just apportionment to, and economical use by, those making a benficial application of the same, its control shall be in the state, which, in providing for its use, shall equally guard all the various interests involved. All the waters of the state, when flowing in their natural channels, including the waters of all natural springs and lakes within the boundaries of the state are declared to be the property of the state, whose duty it shall be to supervise their appropriation and allotment to those diverting the same therefrom for any beneficial purpose, and the right to the use of any of the waters of the state for useful or beneficial purposes is recognized and confirmed; and the right to the use of any of the public waters which have heretofore been or may hereafter be allotted or beneficially applied, shall not be considered as being a property right in itself, but such right shall become the complement of, or one of the appurtenances of, the land or other thing to which, through necessity, said water is being applied; and the right to continue the use of any such water shall never be denied or prevented from any other cause than the failure on the part of the user thereof to pay the ordinary charges or assessments which may be made to cover the expenses for the delivery of such water."

This is another statute which appears to the court has established itself to the facts of this case and Silver Creek generally, and the rights or privileges of the people claiming thereunder through their state are now too well established for this court to dispossess them.

I agree with the citation from People vs. Mack, 19 Cal. App. 3d 1040, as follows:

"Waters and Water Rights (Clark Ed.) page 216, indicates that the basic question of navigability is simply the suitability of the particular water for public use and that modern authorities take that position. With our ever-increasing population, its ever-increased leisure time (witness the four and five day week), and the ever-increasing need for recreationalareas (witness the hundreds of camper vehicles carrying people to areas where boating, fishing, swimming and other water sports are available), it is extremely important that the public not be denied use of recreational water by applying the narrow and outmoded interpretation of 'navigability'."

And I feel in the present case we must add thereto the fact that this stream has been so used for many many years until, as both parties say, it is one of the most well known and popular trout fishing streams in the United States. And, as stated in the language of the court in the Wyoming case of Day vs. Armstrong, 362 P.2d 137, decided in 1961, and which would appear to be applicable in Idaho,

"The title to water being in the state, in concomitance, it follows that there must be an easement in behalf of the State for a right of way through their natural channels for such waters upon and over lands submerged by them or across the bed and channels of streams or other collections of waters . . . The waters not being in trespass upon or over the lands where they naturally appear, they are available for such uses by the public of which they are capable."

Nor does this right in the public deny the other rights created by the State of Idaho, in this case particularly to water users an equal right of the reasonable use of the stream to carry out their recognized rights; and what would constitute reasonable use would depend upon the circumstances of each particular case. It would seem in any determination of reasonable use by the respective parties regard must be had to the subject matter of the use, the occasion and manner of its application, its object, extent, necessity, and duration, and the established usage of the country. And if in so using one's respective rights and while using ordinary care one would necessarily and unavoidably impede or obstruct another temporarily, that he would not thereby become a wrong doer nor would his acts be illegal nor would he create a nuisance for which an action could be maintained.

And as set out in Small vs. Harrington, 10 Idaho 499, 79 Pac. 461,

"No one has the right to arbitrarily obstruct a stream to the detriment or injury of his neighbor; each one is entitled to the free and reasonable use of the navigable streams of this state, and may place such reasonable obstructions on the stream so long as they serve a useful and beneficial purpose, and leave a reasonable use to others interested. If an obstruction merely impairs or renders more difficult the navigation, without destroying it, an individual has no rightful cause for complaint, because he has no right to insist on the best possible accommodation."

From all of the above it is the court's view that the plaintiffs should prevail in their action to the extent hereinbefore set out, saving to the defendant his basic rights as established for farming and use of his land and the water applicable thereto.

Counsel for the plaintiff may prepare the necessary findings and judgment for the court's signature, keeping in mind this is a declaratory judgment as prayed for in the complaint. If objections are made thereto, they will be heard on Thursday, July 21, 1972, at 1:30 p.m. or the Thursday following the filing and service of findings of fact and conclusions of law and judgment, five days intervening, but not earlier than July 21.