Tobey v. Bridgewood

Citations

• 22 Idaho 566
• 127 P. 172
• 1912 Ida. LEXIS 62

Syllabus

<p>PERMIT to Appropriate Water — State Land — Power op State Board op Land Commissioners — Conveyance.</p> <p>(Syllabus by the court.)</p> <p>1. Where a permit to appropriate public waters upon lands belonging to the state is issued by the state engineer, such permit is an inchoate right which may ripen into a legal and complete appropriation only upon the completion oí the work and the application of the water to a beneficial use, and confers upon the person to whom the permit is issued no right under such permit against a stranger who subsequently secures from the state a better and higher right than is vested by virtue of the permit.</p> <p>2. A permit to appropriate the public waters at a point upon state lands, issued by the state engineer, is not a lease of the land where the location is made, neither is it a deed of sale of the land at a point where the water is to be taken.</p> <p>3. In order to initiate the right to appropriate publie waters of the state at a point upon land belonging to the state, it is necessary for the applicant to enter land owned by the state of Idaho for the purpose of making the necessary examination and surveys, maps and plans required in order to make a proper application to the state engineer for a permit, and the entering upon the state lands for the purpose of making appropriation without having the right to make such entry, either by purchase or condemnation proceedings, as provided by law, would be a trespass upon said lands, under the provisions of see. 1578, Eev. Codes.</p> <p>4. Under the constitution and the statute of this state, the governor, superintendent of public instruction, secretary of state, attorney general and state auditor constitute the state board of land commissioners, and have the direction, control and disposition of the publie lands of the state under such regulations as may be prescribed by law.</p> <p>5. The constitution and statutes of this state circumscribe the direction, control and disposition of