"This is a special proceeding, instituted by the filing of a petition of the Board of Directors of the Wilder Irrigation District under Sections 42-406, 42-407, and 42-408 of the Idaho Code, Annotated * * *, to have examined, approved and confirmed by the court, in accordance with the prayer of the petition, the proceedings taken by the said Board of Directors for its authorization of the execution of the contract between the United States of America and the Wilder Irrigation District, approved by the Secretary of the Interior January 13, 1941."
The trial court approved and confirmed the contract and duly entered its judgment from which this appeal is prosecuted. *Page 553 There are but two questions here for determination, namely:
"(a) Does the Wilder Irrigation District and its Board of Directors have the power and authority to enter into the contract sought to be confirmed in this action, in so far as the same relates to the Board of Control as referred to in said proposed contract?"
Upon this point I concur with Mr. Justice Givens.
"(b) Has the Wilder Irrigation District, or the Board of Directors thereof, the power or authority to enter into the proposed contract in so far as the same provides by paragraph 43 thereof for the right to substitute, at some future time, waters to be diverted from the Payette River or from the Salmon River into the Boise River above the Diversion Dam, as provided for in said contract?"
The contract was duly submitted to the landowners and waterusers within the Wilder Irrigation District at an election, duly called and held for the express purpose of submitting to said landowners and waterusers the question of whether the contract should be accepted or rejected. 806 votes were cast at said election; 657 votes were in favor of acceptance of the contract, and 149 votes were against such acceptance. Upon confirmation of the proceedings by the court, approval and acceptance of the contract by the Board of Directors, the Board of Directors of the Wilder Irrigation District was authorized to enter into the contract under the provisions of Sec. 42-304, I. C. A.:
"The Board of Directors of an irrigation district organized under the laws of the state of Idaho may * * * do any and every lawful act necessary to be done that sufficient water may be furnished to the lands in the district for irrigation purposes."
Appellants do not question the necessity for the district to acquire a supplemental water supply to properly irrigate the lands within the district. The landowners and waterusers, under the terms of the contract, will not be deprived of their water rights or priorities. There is a mere substitution or exchange of water, which right of substitution or exchange is authorized under the provisions of Sec. 41-105, I. C. A.:
"The water appropriated may be turned into the channel of another stream and mingled with its water, and then reclaimed; and water may be turned into any ditch, natural *Page 554 channel or waterway from reservoirs or other sources of water supply, and such water may be substituted or exchanged for an equal amount of water diverted from the stream, creek or river into which such water flows, or any tributary thereof, but in reclaiming the water so mingled, or diverting water in lieu thereof from any such stream, creek, river or tributary, the amount of water to which prior appropriators may be entitled shall not be diminished, and due allowance shall be made for loss by evaporation and seepage." [Italics ours]
The source of the water supply is immaterial, under all the facts in this case, so long as the landowners and waterusers receive the quantity of water as of the date of their priorities for beneficial use. No additional burdens are to be placed upon the landowners and waterusers by reason of the exchange or substitution of water. It is the fixed and settled policy of the state to conserve and make available for beneficial use in the irrigation and reclamation of lands of the state all of the available waters within its boundaries, and to this end contracts have been entered into between duly organized irrigation districts and the Federal Government.
I agree with the conclusion reached by Mr. Justice Ailshie that the judgment should be affirmed. Costs awarded to respondents.