Effect of license.
Water right licenses shall be binding upon the state as to the right of such licensee to use the amount of water mentioned therein and shall be prima facie evidence as to such right; and all rights to water confirmed under the provisions of this chapter, or by any decree of court, shall become appurtenant to, and shall pass with a conveyance of, the land for which the right of use is granted. The right to continue the beneficial use of such waters shall never be denied nor prevented for any cause other than the failure, on the part of the user or holder of such right, to pay the ordinary charges or assessments which may be made or levied to cover the expenses for the delivery or distribution of such water, or for other reasons set forth in this title: provided, that when water is used for irrigation, no such license or decree of the court allotting such water shall be issued confirming the right to the use of more than one (1) second foot of water for each fifty (50) acres of land so irrigated, unless it can be shown to the satisfaction of the department of water resources in granting such license, and to the court in making such decree, that a greater amount is necessary, and neither such licensee nor anyone claiming a right under such decree, shall at any time be entitled to the use of more water than can be beneficially applied on the lands for the benefit of which such right may have been confirmed, and the right to the use of such water confirmed by such license shall always be held subject to the local or community customs, rules and regulations which may be adopted from time to time by a majority of the users from a common source of supply, canal or lateral from which such water may be taken, when such rules or regulations have for their object the economical use of such water.
Notes of Decisions
Cited in
14
cases (
1 in the last 5 years), 1959–2022 · leading case:
Nettleton v. Higginson, 558 P.2d 1048 (Idaho 1977).
Nettleton v. Higginson, 558 P.2d 1048 (Idaho 1977).
· cites it 8× “[2] The latter appropriation would appear to be in violation of I.C. § 42-220 which limits the right to use more than one inch per acre (i.”
Briggs v. Golden Valley Land & Cattle Co., 546 P.2d 382 (Idaho 1976).
· cites it 6× “Assuming that a water right may be quantified by decree in terms of acre feet per year, does a water license which describes the right only in terms of cubic feet per seeond, with no duration stated, constitute prima facie evidence under I.C. § 42-220 that water has been applied…”
Dovel v. Dobson, 831 P.2d 527 (Idaho 1992).
· cites it 4× “This is an enlargement of the right in violation of I.C. § 42-222.”
United States v. Pioneer Irrigation Dist., 157 P.3d 600 (Idaho 2007).
· cites it 2× “” I.C. § 42-220. Idaho Code § 42-915 uses the word “title” and provides that once a water right becomes appurtenant to the land, title to the use of the water can never be affected by transfers of the ditch, canal, or by foreclosure: When any payment is made under the terms of a…”
3g Ag LLC v. Idwr, 509 P.3d 1180 (Idaho 2022).
· cites it 2× “The LLC points out that the license for the ground water right does not contain any express limitations on its beneficial use apart from a limitation memorializing the “duty of water” under Idaho Code section 42-220. From this, the LLC maintains that IDWR improperly added a…”
State v. Nelson, 951 P.2d 943 (Idaho 1998).
· cites it 2× “Additionally, pursuant to Idaho Code section 42-220, all rights that are decreed pass with conveyance of the land and therefore the land could be sold with the certainty that the water would be distributed as decreed.”
In Re Distrib. of Water to Various Water Rights, 315 P.3d 828 (Idaho 2013).
· cites it 2× “, I.C. § 42-220 (“neither [a] licensee nor anyone claiming a right under [a] decree, shall at any time be entitled to the use of more water than can be beneficially applied on the lands for the benefit of which such right may have been confirmed.”
Crow v. Carlson, 690 P.2d 916 (Idaho 1984).
· cites it 2× “I.C. § 42-220 provides that “all rights to water confirmed under the provisions of this chapter, or by any decree of court, shall become appurtenant to, and shall pass with a conveyance of, the land for which the right of use is granted.”
Nordick v. Sorensen, 338 P.2d 766 (Idaho 1959).
· cites it 2× “*135 I.C. § 42-220 provides in part: “ * * * when water is used for irrigation, no * * * decree of the court allotting such water shall be issued confirming the right to the use of more than one second foot of water for each fifty acres of land so irrigated, unless it can be…”
North Snake Ground Water Dist. v. Gisler, 40 P.3d 105 (Idaho 2002).
· cites it 2× “NSGWD argues that the sprinkler-flood irrigation policy used by the IDWR to form the basis for its Director’s Report violates I.C. § 42-220 by allowing the recommendation of a diversion rate that exceeds the actual need for the type of irrigation method currently employed.”
Feustel v. Stevenson, 809 P.2d 1177 (Idaho Ct. App. 1991).
· cites it 2× “While the judgment placed the burden of persuasion on this issue upon Stevenson, the judgment did not create any presumptions that the court had found it was “necessary” for the Feustels to employ a greater amount of water per acre than allowed by I.C. § 42-220. Because we…”
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