Syster v. Hazzard , 39 Idaho 580 ( 1924 )

I am unable to agree with part of the reasoning upon which the majority opinion is necessarily grounded. C. S., sec. 5570, provides that the actual construction work called for by the application, pursuant to which a permit is issued, shall be completed within a period of five years from the date of the approval by the department of reclamation, and that one-fifth of such construction work shall be done within one-half the period of time allowed for the completion. The majority opinion is based upon the proposition that respondent Hazzard could purchase Permit No. 7056 and apply the work done under it to Permit No. 10415 in such a way that the work already done under No. 7056 should count as the one-fifth of the construction work required by the statute to be done under No. 10415 within one-half the time allowed for the completion of the works. This in my judgment is a violation of the statute and against public policy. I have no quarrel with the doctrine that one may purchase a permit and utilize the work that has been done under it, thereby making it unnecessary to duplicate that work. But the purpose of C. S., sec. 5570, is to require diligence as evidence of good faith and a condition of continued progress. Under the doctrine of the majority opinion, just before one-half the time allowed for the completion of the work has expired, a permit under which work has been done can be repeatedly transferred and rights kept alive indefinitely without any additional construction work. Such a holding, therefore, defeats the purpose of the statute, and it is also in conflict with what this court has said in dealing with an analogous question.

"Where a permit is issued for the enlargement or extension of existing works, the person to whom such permit is granted must complete one-fifth of such extension or enlargement within one-half of the time granted for the completion of the work and cannot claim credit for the construction already done at the time the permit was issued." (Clark v. Hansen, 35 Idaho 449,206 P. 808.)

I am authorized to state that Justice Wm. E. Lee concurs in this dissenting opinion.

Petition for rehearing denied.