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Show 512 ADJUDICATION OF WATER RIGHTS IN WATERCOURSES In a 1969 case, the Idaho Supreme Court, among other things, said: The Court has required [a specific water] measurement when the decree is intended to settle the rights of various appropriators who claim and use fluctuating amounts of water from the same source. Thus, if the decree awards an uncertain amount of water to one appropriator whose needs are vague and fluctuating, it is likely that he will waste water and yet have the power to prevent others from putting the surplus to any beneficial use.385 The court concluded, however: In the present case, the Village has shown that it had used for beneficial purposes all of the water from springs A and B until appellants interfered with their right. Appellants have never applied any of this water to beneficial use. They do not allege that there is any excess which the Village cannot use. In these circumstances, it is not necessary that the decree set forth a specific amount of water to which the Village is entitled. A decree giving "all" of the water from a certain source to a senior appropriator is valid when all of the water is beneficially used, for there is then no waste.386 The Nevada Supreme Court made an early observation to the effect that a decree that is not certain and definite with respect to the quantity of water appropriated, or that does not provide a basis for ascertaining such quantity, cannot be upheld.387 The main purpose of a suit to quiet title to water rights is to determine the respective rights of the parties to the use of the water. Hence a decree that leaves the controversy undetermined and subject to future litigation defeats the purpose for which the action was brought.388 In Oregon, it has been held that one who claims a riparian right in a special statutory adjudication proceeding, but who asserts a right to a specific quantity of water with a fixed beginning use-which he must establish in order to have an enforceable priority-thereby claims essentially as an appropriator and waives his riparian claim for the purpose of that proceeding.389 In California, as elsewhere in the West, the appropriative right generally relates to a specific quantity of water. It therefore differs markedly from the In three of the earliest decisions of the Idaho Supreme Court, judgments of the trial courts were reversed because their decrees did not determine the rights of the parties according to their priorities of appropriation. Hillman v. Hardwick, 3 Idaho 255, 28 Pac. 438 (1891); Geertson v. Barrack, 3 Idaho 344, 29 Pac. 42 (1892); Kirk v. Bartholomew, 3 Idaho 367, 29 Pac. 40 (1892). In ordering the reversals, the supreme court stated the essential points that the trial courts should have determined and decreed. 385 Village of Peck v. Denison, 92 Idaho 747, 450 Pac. (2d) 310, 313 (1969). 386 450 Pac. (2d)at 314. ™ Walsh v. Wallace, 26 Nev. 299, 330, 67 Pac. 914 (1902). 388Pacific Live Stock Co. v. Ellison Ranching Co., 52 Nev. 279, 296, 286 Pac. 120 (1930). 389 See the discussion in chapter 10 at notes 509-515. |
