On January 28, 1911, George L. Buck secured from the State Engineer Permit No. 7056 awarding him the right to appropriate 750 cubic feet per second of the waters of Clear Lake, in Lincoln county, for power purposes. One-fifth of the actual construction work was to be completed by July 28, 1913, and the whole by January 28, 1916. Thereafter by a series of conveyances title to this permit together with the works being constructed thereunder, and certain lands incident thereto became vested in the Clear Lake Power Improvement Company. On July 8, 1914, the respondent, William C. Hazzard, acquired from the State Engineer original Permit No. 10415 covering 1,000 cubic feet per second of the same waters for similar purposes, conditioned that one-fifth of the work be done by January 8, 1917, and the whole by July 8, 1919, the estimated cost of construction being $20,000. The diversion points under each permit were identical. On September 15, 1916, at a sheriff's sale in pursuance of an execution subsequent to judgment secured by the said Hazzard against the said Power and Improvement Company, Hazzard bought Permit No. 7056, together with the lands and works before mentioned, and received the usual certificate of sale therefor. He immediately applied the works purchased upon his Permit No. 10415, and on May 9, 1917, following, made application to the State Engineer for extension of time to complete the work under the respective permits, alleging that litigation over the property and water involved had prevented him from complying *Page 584 with the terms imposed. Extensions were granted in each instance, Later, the plaintiff who in October and December, 1917, had secured State Engineer's Permits Nos. 13362 and 13363, each entitling her to appropriate 750 cubic feet per second of the same waters for power and other purposes, instituted a contest before the State Engineer to cancel Permits Nos. 7056 and 10415 for the reason that respondent, Hazzard, had failed to comply with the law and the conditions and provisions of such permits. Cancelation was denied, and plaintiff on March 21, 1919, filed her suit in the district court of Gooding county, formerly Lincoln county, to cancel such permits, to enjoin respondents from interfering with her rights under Permits Nos. 13362 and 13363 and to have her rights to the waters involved declared prior and superior to those claimed under permits 7056 and 10415. She alleged that both permits had been initiated in trespass; that the estimated cost of construction in each was too low, and that the requisite works could not be built for less than $110,000; that under neither had one-fifth of the work been done within the time prescribed; that permit 7056 had been abandoned for failure to complete the entire work within the period given; that it had been originally secured by fraud perpetrated on the State Engineer through spurious maps' and representations, and finally that the extensions of time granted by the engineer had likewise been secured through false and fraudulent representations, and were wholly void in that they had been made after default upon the part of Hazzard.
The district court made its findings against each of plaintiff's contentions, and entered its decree upholding both permits awarding respondent Hazzard prior rights of appropriation thereunder, and enjoining plaintiff from interfering with them. Plaintiff has appealed and assigned numerous errors, many of which it will be unnecessary to discuss.
The charge that the work to be done and completed under Permit No. 10415 by July 8, 1919, was not done requires no further comment than that this action was commenced *Page 585 some three months before the arrival of the time limit.
It is not disputed that respondent Hazzard, bought and applied to Permit No. 10415 the works constructed under Permit No. 7056. This he had a legal right to do. (1 Wiel on Water Rights, 3d ed., sec. 390, and authorities cited.) It was an original and independent expenditure of his own. He later made proof of this work before the engineer who accepted it as applied to Permit No. 10415, and entered his order of approval. Respondent has since stood continuously upon the validity of this permit, and at no time has he evidenced any intention to restore the work to the original permit. His feet still rest upon the work applied. Abandonment is a matter of intent coupled with corresponding conduct; and it is obvious that respondent has sought to support Permit No. 10415 with the work stripped from Permit No. 7056. It is true that after the application of the work to Permit No. 10415 he secured an extension of time under Permit No. 7056, but it is impossible to pivot two permits at the same time upon identical work. Each must stand upon separate or additional construction. Otherwise, compliance with the terms of one permit would work a fictitious compliance with the other. Respondent pleads that the cost of construction under either permit will total $50,000. The objects to be achieved under both permits being identical, it cannot possibly be conceived that respondent proposes to spend $100,000 when a disbursement of one-half of that amount is declared to be sufficient. Yet that is just what he would be compelled to do to satisfy the requirements of the two coexistent permits. It would seem that Permit No. 7056 has been purposely and consistently abandoned, and this being the case, it is unnecessary to examine those specifications of error affecting its validity.
As to Permit No. 10415, appellant contends chiefly that the work necessary to effectuate the same will cost $110,000 and that one-fifth of this work was not completed by January 8, 1917. There is a mass of conflicting testimony in *Page 586 this regard, an analysis of which discloses some competent evidence supporting respondent. The witness Hamming, superintending engineer, testified that the cost of completing the work would be the sum of $34,890.78; that the cost of the work completed prior to his employment was $17,590.92; that under his direction further work had been done at a cost of $1,542.00, and that all work done had been completed by October, 1914. In this he is corroborated by the witness Berg, a Cornell engineer, who estimated the cost of completion at $33,503.00 and the cost of the work already done at $17,974.10.
Discussing the practicability of Engineer Hamming's design, the witness Dibble, an hydraulic engineer of wide experience, testified: "I believe a dam built according to his design could be readily built to divert all of the water."
The defendant Hazzard testified in detail as to the completed work and incident cost. The court found that the work could be completed at a cost of $50,000, and that some $19,000 had been expended within the limit. Appellant contends that certain items such as respondent's salary and traveling expenses while investigating machinery are not proper construction charges, and with this we are agreed, but the elimination of these items together with others complained of leaves a sufficiently wide margin for the court to find that one-fifth of the work was done; and the findings will not be disturbed.
It is further urged that respondent, Hazzard, could not on September 15, 1916, apply to Permit No. 10415 the works purchased at execution sale, for the reason that he had no title thereto, and could not acquire it until twelve months thereafter, long subsequent to the expiration of the time limit for such construction fixed as January 8, 1917. The record shows that the sheriff's deed duly issued vesting respondent with the full title as of the date of sale. No other creditor was ahead of him by attachment or otherwise. Furthermore, he was in actual possession of the works, holding the legal title, and his application was not being contested by the owner of the right of redemption, the only person *Page 587 who could defeat him. When appellant brought her action, the construction work in the eyes of the law had belonged to respondent ever since the issuance of the certificate of sale on September 15, 1916.
Finally, appellant insists that Permit No. 10415 was initiated in trespass and void against her for the reason that some of the works are situated upon her lands without her permission or her written consent. It is impossible to ascertain from her brief and the maps and abstracts submitted the actual location or extent of the parcels intended. But it appears that respondent holds practically all the land involved by title derived through appellant and her husband. One deed in particular recites that the grantee is to use the land for power purposes, and as part consideration of the conveyance undertakes to furnish appellant and her husband, grantors, an agreed amount of power during their natural lives. The deed is dated September 19, 1912, nearly eight years before this suit was instituted. It appears that during the entire time of the 1912 and 1914 operations, she and her husband living in the immediate vicinity had continuous dealings with the Improvement Company, boarded and sold supplies to the workers; and maintaining their residence on the premises ever since, they raised no cry until March 21, 1919, when this action was begun. Under these admitted facts, a charge of trespass has no standing.
The findings are sustained and the decree affirmed except as to Permit No. 7056, which has been abandoned. The trial court is directed to modify accordingly. Costs awarded to respondents.
Budge and William A. Lee, JJ., concur.