Rayborn Rayborn and Harry Povey for appellant. Rule 5 of respondent corporation adopted June 10, 1943 is contrary to public policy, illegal and void, and its enforcement and delivery of water thereunder should be enjoined. ( Glavin v. Salmon River Canal Co., 44 Idaho 583.) The lodestar of utility of irrigation water is application to beneficial use without waste, and it is against the public policy of this state, as well as against express enactments, for a water user to take more of the water to which he is entitled than is necessary for the beneficial use for which he has appropriated it. ( Coulson v. Aberdeen-Springfield Canal Co., 39 Idaho 320; Glavin v. Salmon River Canal Co., 44 Idaho 583.)
This Court has invalidated a rule adopted by a canal company that allowed an individual shareholder of the company to hold-over his allotted share of stored water free from limitations, which reduced the allocated amount of other shareholders. Glavin v. Salmon River Canal Co., 44 Idaho 583, 258 P. 532 (1927). The Court invalidated the rule based on "possible abuses," such as a situation where a shareholder does not require the full use of his allotment, but he carries it over to the detriment of others.
This is a continuing obligation. See Washington County Irrigation Dist. v. Talboy, 55 Idaho 382, 390, 43 P.2d 943, 946 (1935); Glavin v. Salmon River Canal Co., 44 Idaho 583, 589-90, 258 P. 532, 534 (1927). Partial forfeiture makes possible allocation of water consistent with beneficial use concepts.
The defendant was and is entitled to appropriate and beneficially use all water available in Granite Creek for domestic uses which are the public waters of the state of Idaho including (1) all water in excess of that which the plaintiff Bullers is entitled to receive under his license and certificate of water right, (2) all water which was in the channel of Granite Creek after it ceased to reach respondent, (3) all water not needed or not applied to a benecial use, (4) freshets and flash floods, (5) winter water, and (6) seeps or percolating waters. Poole v. Olaveson, 82 Idaho 496, 356 P.2d 61; Mountain Home Irrigation District v. Duffy, 79 Idaho 435, 319 P.2d 965; Section 42-104, Idaho Code; Glavin v. Salmon River Canal Co., 44 Idaho 583, 258 P. 532; Hutchinson v. Watson Slough Ditch Co., 16 Idaho 484, 101 P. 1059; Knutson v. Huggins, 62 Idaho 662, 115 P.2d 421; State v. Twin Falls Canal Company, 21 Idaho 410, 411, 429; 121 P. 1039, L.R.A. 1916F, 236; Beecher v. Cassia Creek Irrigation Company, 66 Idaho 1, 154 P.2d 507; Silkey v. Tiegs, 51 Idaho 344, 5 P.2d 1049; 93 C.J.S. Waters ยง 170, p. 906; 93 C.J.S. Waters ยงยง 174-179, pp. 922-930; Crane Falls, etc. v. Snake River Irrigation District, 24 Idaho 63, p. 81, 133 P. 655; Nelson v. Parker, 19 Idaho 727, 115 P. 488; Youngs v. Regan, 20 Idaho 275, 118 P. 499. The respondents, Wesley and Robert Ward, have no legal title to any water in Granite Creek upon which said title they can rely to maintain this action because the Bullers' ditch has not been substituted for the natural channel of Granite Creek and in any event a riparian proprietor cannot assert a right in derogation of the rights of an appropriator.
Shortage makes the elimination of waste imperative. Griffiths v. Cole, D.C.Idaho 1919, 264 F. 369; Glavin v. Salmon River Canal Co., 1927, 44 Idaho 583, 258 P. 532; cf. Vineyard Land Stock Co. v. Twin Falls Oakley Land Water Co., 9 Cir., 1917, 245 F. 30; Niday v. Barker, 1909, 16 Idaho 73, 101 P. 254. During the years from 1931 to 1935, particularly, there was a serious shortage of water in the Snake River Valley. Because of this, the American Falls Reservoir (by far the largest of the three in the project) failed to fill and the consequent want of sufficient water for irrigation resulted in severe crop losses, particularly in 1934.
Section 372, title 43, USCA, provides that: "The right to the use of water acquired under the provisions of the reclamation law shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right." See, also, Hayward v. Mason, 54 Wn. 649, 104 P. 139; Glavin v. Salmon River Canal Co., 44 Idaho 583, 258 P. 532; Natoma Water Mining Co. v. Hancock, 101 Cal. 42, 31 P. 112, 35 P. 334. Appellant's right is limited to the dam and the right to divert for beneficial use appropriated water, and no incidental right except such as is reasonably necessary to its enjoyment.
This evidence should sharply place in focus the primary issue which must be decided, viz, assuming that the senior appropriators have been annually pumping less than their decrees permit, do they nevertheless retain the unused portion of their 5500 acre feet for use in subsequent years as "water in the bank," or is that unused portion of the seniors' decreed rights available for redistribution to the junior appropriators? See Glavin v. Salmon River Canal Co., Ltd., 44 Idaho 583, 258 P.2d 532 (1927). The director was attempting to resolve this issue when he entered his order dated May 9, 1972, which in effect rejected the "water in the bank" theory, although he went further and, on the assumption that primary jurisdiction had been deferred to him, an assumption suggested by our decision in Baker v. Ore-Ida, actually reduced the amount of the decreed annual rights of the seniors by the amount of water which he found had never been applied to beneficial use. By granting summary judgment, the district court, in its zeal to protect the integrity of its 1971 decree, never reached this pivotal issue in the case.
However, in an appropriation without a diversion, the right acquired is not to the stream flow as was the case under the riparian system, but to the use of a specific amount of water which is the subject of the right. That amount must be a reasonable and efficient use of the water. Glavin v. Salmon River Canal Co., Ltd., 44 Idaho 583, 258 P. 532 (1927); Union Grain Elevator Co. v. McCammon Ditch Co., 41 Idaho 216, 240 P. 443 (1925). With regard to the Malad Canyon appropriation, I.C. ยง 67-4312 provides:
" 'When an appropriator is not using water under his appropriation and during the season not covered by his appropriation, he must allow the water to flow down the bed of the natural channel.' (Which is what the decree pleaded by appellant Colthrop requires). "Later, in State v. Twin Falls Canal Company, 21 Idaho 410, 411, 429, 121 P. 1039, we adhered to the rule announced in the Hutchinson case, supra, holding: 'It is the policy of the law of this state to prevent the wasting of water.' And in Glavin v. Salmon River Canal Company, Ltd., 44 Idaho 583, 589, 258 P. 532, we again held: " 'It is against the public policy of this state, as well as against express enactments (then Sec. 5640 C.S., now Sec. 41-816, I.C.A.), for a water user to take more of the water to which he is entitled than is necessary for the beneficial use to which he has appropriated it,' pointing out that 'public policy demands that whatever be the extent of a proprietor's right to use water until his needs are supplied, his right is dependent upon his necessities, and ceases with them,' citing and adhering to State v. Twin Falls Canal Company, supra, and Hutchinson v. Watson Slough Ditch Company, supra."
Later, in State v. Twin Falls Canal Company, 21 Idaho 410, 411, 429, 121 P. 1039, we adhered to the rule announced in the Hutchinson case, supra, holding: "It is the policy of the law of this state to prevent the wasting of water." And in Glavin v. Salmon River Canal Company, Ltd., 44 Idaho 583, 589, 258 P. 532, we again held: "It is against the public policy of this state, as well as against express enactments [then Sec. 5640 C. S., now Sec. 41-816, I. C. A.], for a water user to take more of the water to which he is entitled than is necessary for the beneficial use to which he has appropriated it," pointing out that "public policy demands that whatever be the extent of a proprietor's right to use water until his needs are supplied, his right is dependent upon his necessities, and ceases with them," citing and adhering to State v. Twin Falls Canal Company, supra, and Hutchinson, v. Watson Slough Ditch Company, supra.