217 P. 258 | Idaho | 1923
— This is an appeal from a judgment of the district court of the eleventh judicial district, in and for Twin Falls county, wherein the respondent is awarded a writ of mandate granting to him the rights of a stockholder in the appellant Twin Falls Canal Company, and adjudging him to be entitled to receive from said corporation a certificate of stock showing that he is the owner of eighty shares therein, which entitles him to a water right appurtenant to the lands described in his complaint. Ap. pellants are directed and ordered to recognize and observe the rights of respondent as such stockholder, to issue and deliver to him such certificate, and to deliver to him water for the irrigation of his lands in an amount equal to five-eighths of a miner’s inch per second of time, at the same time and upon the same terms as water is delivered to other stockholders in said corporation.
This is a case somewhat similar to State and Rice v. Twin Falls Land & Water Co. and Twin Falls Canal Co., ante, p. 73, 217 Pac. 252, but differs from that case in some important particulars.
Bespondent in the instant case on December 19, 1918, entered into a contract to purchase from the Twin Falls Land
The “complaint and application for a writ of mandate” alleges that the Twin Falls Canal Company, which will be referred to as the “operating company,” is a corporation, and that the individual defendants are its board of directors and secretary, respectively. That the Twin Falls Land & Water Company, which will be designated as the “construction company,” was organized for the purpose of constructing an irrigation system and to sell water rights in the state of Idaho, under and pursuant to the act of Congress approved August 18, 1894, and acts amendatory thereto, commonly known as the Carey Act, and particularly for the purpose of constructing, operating and disposing of a certain Carey Act project in Idaho known as the Twin Falls South Side project. That on July 1, 1901, the government, pursuant to said Carey Act, segregated to the state of Idaho a large body of desert lands aggregating 244,025.98 acres, upon condition that the state was to cause to be irrigated and reclaimed said lands and that the government would patent the same to the state whenever it furnished or caused to be furnished an ample supply of water in a substantial ditch, canal, artesian well or reservoir, a copy of the
'The answer admits the foregoing allegations of the complaint. It qualifiedly admits paragraphs 8 and 10 following to the extent that the construction company bound itself to construct works sufficient to divert 3',000 second-feet to reclaim the lands described in the segregation contract between the government and state, but denies that it bound itself to furnish water to any more of said lands than the 3.000 feet of water appropriated was ample to irrigate.
It is alleged by the complaint and admitted 'by the answer that the construction company in its contract with the state was permitted to sell water rights in compensation for its constructing said water system, and that such shares represented one-eightieth of a second-foot of water per acre and a proportionate interest in the canal system, with all rights and franchises, based upon the shares finally sold, at an agreed rate of $15:50 for sections 16 and 36 and $25 per acre for other lands included within this segregation and susceptible of being reclaimed by said works.
It is further alleged by the complaint and admitted by the answer that the capitalization of the operating company was to be 275,000 shares, which was to include the projects on both sides of the Snake River, and the stock ivas to be fully paid up; that the construction company completed the said south side system of sufficient size to divert from the Snake River and convey to said lands 3,000 cubic feet of water per second of time. That after doing so, in the fall of 1909 this system was accepted by the state of Idaho as complete and as having been constructed in accordance with the contract; that the construction company proceeded to organize the appellant Twin Falls Canal Company, with a capitalization of 210,000 shares, which represented a water right for every acre of land to be irrigated under the south side project, and immediately thereafter conveyed the interest of said construction company in said system to this operating company, together with all appurtenances belonging thereto. That after said segregation and the inauguration of the construction work, the state board gave notice that certain lands were open for settlement, which notice included respondent’s said lands, and that the same could be purchased by qualified entrymen at fifty cents per acre, and the water right to reclaim them at $25 per acre. That subsequently the state, upon making proof that water sufficient to reclaim these segregated lands had been furnished in a substantial ditch, applied to the government and received patent therefor; and that the same has not been relinquished or withdrawn from settlement.
It is further alleged that there has been sold water rights for less than 205,000 acres; that stock has been issued for
It is also alleged that a decree was entered in the district court of the fourth judicial district, the counties of said fourth district now being in the eleventh district, in April, 1913, in an action entitled Twin Falls Land & Water Co. v. Charles M. Foster, et al., quieting title to 3,000 second-feet of water to be used on the south side, and that respondent’s lands were among the lands to which said water was decreed.
It is further alleged that since this system was turned over to the operating company, it has procured and holds additional rights in Snake River for the watering of said lands, and that respondent is a qualified entryman.
To the answer of appellants, the operating company and its officers, respondent demurred generally to each and every part thereof, on the ground that said answer did not state facts sufficient to constitute a defense, which demurrer was sustained. Respondent also moved to strike appellants’ answer and for judgment on the pleadings, which motions were also sustained. Appellants having elected not to plead further, judgment was entered in favor of respondent and against appellants as prayed for in the complaint. The demurrer to the answer, motion to strike and motion for judgment on the pleadings admit the truth of all relevant and v material facts properly pleaded in such answer, and it therefore becomes necessary to determine what relevant matter is pleaded by this answer and the effect of admitting the truthfulness of said facts on the part of respondent.
By way of an affirmative defense, appellants allege that at all times since this water has been carried in said canals to said segregated lands, it has been the uniform custom and usage of both the canal companies to deliver to said purchasers of water rights or stock in said canal system for the irrigation of their respective lands five-eighths of a miner’s inch per second of time for each acre of land, and to deliver the same within one-half mile of the user’s legal subdivision. That all of the water flowing in said canal system to its full
The answer further alleges that prior to respondent’s purchase there had been 180,000 acres of land under this system put in a high state of cultivation by the owners, upon the representation that an ample supply of water would be furnished, and that all of said persons have prior rights in and to the present available water supply, which is all required and necessary to supply their needs, under the most economical method of use, and that to now permit further rights to be sold under this system will cause all of said
The pleadings, it would seem, are needlessly prolix and voluminous, and we have endeavored to limit this recital to only the more essential facts relied on by the respective parties. The ultimate question for determination is: Admitting the truth of all facts pleaded by the answer, as the demurrer and motion to strike does admit them, should these admissions defeat respondent’s right to the relief prayed for.
The contract between the construction company and the operating company at the time of the transfer of the canal system contains the following:
“If the Twin Falls Canal Company shall hereafter conclude that there remains in said canal system water rights in excess of the number of shares of stock in said corporation already issued (and not' otherwise) including the stock evidenced by certificates provided to be issued in said paragraphs 1 and 2 hereof, then it, the said Twin Falls Canal Company, shall endeavor to sell said shares of stock in said Twin Falls Canal Company to represent the surplus and excess water rights in said canal system.....It is also further understood that nothing herein shall be construed to apply to any waters that may hereafter be appropriated by said Twin Falls Canal Company, nor to any of the increased capital stock of the Twin Falls Canal Company, if its capital stock shall be hereafter increased by the stockholders of said company, and that all water hereafter appropriated by the Twin Falls Canal Company shall be evidenced by the increased capital stock of the said company and not by any of its present authorized capital stock.”
Nor do we think appellants’ contention tenable that the acquiescence of the water users under this system in a certain method of distribution can control as to the manner of distributing such water, if such method is not in accord with the terms of the several agreements referred to in the pleadings. But in that respect we think it is clear that the contract between the state and the construction company limits the right of the company to a sale of such water rights to the capacity of the irrigation works, and defines the amount of a share of this water right, which includes a proportionate interest in the canal system, based upon the number of shares finally sold, but also provides that in no case will water rights or shares be sold or dedicated to any of the lands beyond the carrying capacity of the canal system, nor in excess of the appropriation. Manifestly, when the carrying capacity of the canal system is sold, or when all the water so appropriated by the company has been sold, the purchasers then own the entire system as tenants in common, bound of course by the terms of their agreement to have the system administered through the agency of the operating company. This company is merely a convenient method devised by the state contract for administering the affairs of these water users through the instrumentality of a corporate entity. It would have been competent for them to have administered this whole system in their own proper persons, but the impracticability of so doing was so great that this corporation was created to act on their behalf, and is in effect merely an .incorporated water master for the respective water users.
In the Rayl ease, supra, it clearly appears that if the writ prayed for should issue to compel the delivery of water for •additional lands, it could only result in depriving lands that had already been purchased, settled upon and reclaimed of a part of the water which is necessary for their reclamation and which under their contracts of purchase the owners are justly entitled to receive, which water had already been dedicated to the lands, and the writ was denied. In the
As said in the Rice case, supra, it cannot be presumed that the present users of water under this system, when they acquired their rights to its use, intended or understood that they would receive only an indefinite, fractional part of this original appropriation, instead of the definite, specific quantity mentioned in the granting clause of their contract. We approve the doctrine announced in Caldwell v. Twin Falls Salmon River etc. Co., supra, wherein it is said that: “The settlers’ contracts for water were contracts for the sale of a specific water right for each acre of land described, and a proportionate interest in the system,” and further, where it is held that while under one of these projects priority of application for water rights or priority of entry and settlement does not confer upon such settler priority in the
For the reasons here given, the judgment awarding the writ of mandate is reversed and the cause remanded, with instructions to overrule the demurrer to the answer, deny the motion to strike the answer and also the motion for judgment on the pleadings, with leave that the trial of said cause may be proceeded with in accordance with the views herein expressed, if either party so elect; otherwise, the action to he dismissed. Costs to appellants.