| Idaho | Sep 30, 1911
This is an application by the appellants for a writ of mandate against the defendants to compel the defendants to classify the lands, to which water is delivered by defendant irrigation district, in accordance with the provisions of Rev. Codes, sec. 3287. The trial court sustained a demurrer to the complaint and the appellants refused to amend, and judgment was accordingly entered in favor of the defendants dismissing said cause of action.
This action seems to have been brought for the purpose of enforcing the duty imposed by Rev. Codes, see. 3287. This section reads as follows:
“When any ditch, canal, or reservoir delivering or distributing water to several users, has one or more rights or priorities by reason of enlargements made from time to time, the right of the land being irrigated by such works shall be divided into classes; rights of the first class belonging to those lands reclaimed between the dates of the first and second priorities or rights of such works; rights of the second class belonging to those lands reclaimed between the dates of the second and third priorities of such works; rights of any other class being determined in like manner; but all the rights belonging to*284 the same class shall be equal and subject alike to the regulations of their respective class.”
The facts in substance as plead in the affidavit for the writ are about as follows: The Nampa & Meridian Irrigation District is organized as such under the laws of the state and is the owner of an irrigation system in Ada and Canyon counties, distributing water therefrom to water users within and without such district. The appellants claim to be the owners of certain lands under the defendant’s irrigation system, and that they have received water from the defendant’s district, and its predecessors in interest, at a point on the upper end of the canal, and that such water is necessary for the proper cultivation and irrigation of their said lands; that the defendant district, and its predecessors in interest, have made two separate appropriations from the Boise river of the waters distributed through the said district’s system, the first of which was made in May, 1878, to the extent of 8,500 inches, and thereafter the defendant and its predecessors in interest enlarged the canal, and made an additional appropriation of 18,542 inches of water on August 20, 1888; that the land of the appellants was reclaimed and irrigated under the original appropriation of the predecessors in interest of the defendant district made in 1878; that the defendant irrigation district has refused to perform the duty imposed by the statute classifying the lands under the defendant’s irrigation system, and on the contrary has distributed water equally to all the water users from the defendant’s said system, and placed those receiving water for land reclaimed under the original appropriation and those who receive water and reclaim their lands after the second appropriation and enlargement of the canal, all in the same class.
The lower court seems to have held, and it is so contended upon this appeal, that the trial court had no jurisdiction to require the defendant irrigation district to make a classification of the lands irrigated under its system in accordance with the statute, and that the remedy of the plaintiffs was by a suit to have the priorities of right to the use of water from the
Under the provisions' of sec. 3, art. 15 of the constitution of this state priority of appropriation gives the better right as between those using water. This provision of the constitution has been strictly adhered to in the many decisions this court has rendered construing the same, and this court has universally recognized the rule thus announced, that first in time of appropriation gives the first right to the use of water. In construing sec. 3287 of the Rev. Codes the constitutional provision and the many opinions of this court should be strictly kept in mind. Guided by the rule thus announced, the legislature in enacting the section of the statute above quoted no doubt had in mind the power conferred upon them by the provisions of see. 1 of art. 15 of the constitution which says: “The use of all waters now appropriated, or that may hereafter be appropriated for sale, rental or distribution; also of all water originally appropriated for private use, but which after such appropriation has heretofore been, or may hereafter be sold, rented or distributed, is hereby declared to be a public use, and subject to the regulation and control of the state in the manner prescribed by law.” And in enacting this statute the legislature intended to provide a simple and expeditious way of classifying the rights of water users under a canal system in the absence of and until the actual dates and the extent of the appropriation of the several users of water have been adjudicated and settled by the courts in a proceeding brought in the courts for that purpose. This statute was not intended to in any way control or settle priorities between different consumers of water under a canal system, but was intended only as an administrative measure prescribed by the legislature. Any action that may be taken under the provisions of this section by the owner of a canal system can in no way affect or control the question of priorities between users, and in no way prohibits or limits any user of water in having the question of priority between users settled and adjudicated in the proper courts of the state. The statute is merely administrative, and is the declaration of a
This provision of the statute may be the means of preventing much litigation over the priorities of rights of different consumers of water from the same canal, in that the classification made as therein provided may be satisfactory and may be accepted by the consumers, and thereby much litigation and expense may be saved to the consumers. Counsel for respondent argues Avith much force that the irrigation district in this case has adopted a method of its own which is satisfactory to it, and that it would be impossible to make a classification in accordance with the statute. This statute does not require any impossibility, but it is intended that the oivner of the ditch shall make a classification upon such information as it may be able to obtain and in fairness and in accordance with the terms of the statute.
Whenever a ditch company shall make a classification upon such information as it may be able to obtain and in accordance with the terms of the statute, if a mistake is made and a consumer of water is placed in the wrong classification, he can have such classification corrected in the courts, and he is not compelled to accept the classification made by the ditch company. It is no answer to the provisions of the law for an irrigation company operating a canal and selling and renting water to say that they are unable to make a classification in áeeordanee with the statute. In this case counsel for the irrigation district contends that the irrigation system has changed hands a number of times and that they have no record of the contracts made by the previous owners, and for that reason they cannot determine whether the consumers belong to the class who were furnished water under the first appropriation made by their predecessors in interest or under the second appropriation. We know of no one who ought to be in a better position to ascertain this matter than the irrigation district itself. It has succeeded to all the rights of the previ
We find nothing in the statute which requires an impossibility on the part of the distributors of water. The statute requires no specific exactness in doing the thing required by the statute, but the statute does require the distributors of water to act, and that is all that is demanded by the application in this case.
The judgment of the lower court is reversed and the trial court is directed to overrule the demurrer and proceed accordingly. Costs awarded to appellants.