Harney Valley Irrigation District v. Bolton

221 P. 171 | Or. | 1923

BBOWN, J.

The Harney Valley Irrigation District is a lawfully organized irrigation district, duly organized and existing under Chapter 357, General Laws of Oregon, 1917, and acts amendatory thereto. A proceeding duly instituted to test the validity of the organization of the district under the “Confirmation Act” is reported as Harney Valley Irr. Dist. v. Weittenhiller and appears in 101 Or. 1 (198 Pac. 1093).

A question presented to the appellate court is that of the jurisdiction of the circuit court judicially to examine and adjudge as to the regularity and legality of all the proceedings of the Harney Valley Irrigation District providing for and authorizing the issue and sale of the bonds of that district. This is the reason that we have set forth at such length in our statement the service of process.

“Jurisdiction” is defined as the authority to hear and determine a legal controversy: Sprague v. Astoria, 106 Or. 253 (204 Pac. 956, 206 Pac. 849).

The object of the confirmation proceeding is to require every owner of real property in the district to come into court and, within the time limited, to appear, present and submit to judicial investigation any and all objections he may have to the regularity of the election for bonding the district, so that it may be finally and conclusively determined by judgment whether he or his successors in interest can thereafter question the legality of such bonds: Modesto Irr. Dist. v. Tregea, 88 Cal. 334 (26 Pac. 237); 164 U. S. 179 (41 L. Ed. 395, 17 Sup. Ct. Rep. 52, see, also, Eose’s IT. S. Notes).

It will be seen that a confirmation proceeding is in the nature of a proceeding in rem and that the practice and procedure shall follow the practice and procedure of suits in equity, in so far as the same shall be consistent with the judgment sought to be obtained. Such is the law as provided in the Confirmation Act of 1911, as well as in the act of 1919.

The defendants suggest that the notice should not have been signed by the clerk of the court because of the above provision relating to the practice in proceedings of this character. In suits in equity the summons is signed by the parties plaintiff. However, this is not a suit in equity, nor a proceeding under Section 7360, Or. L., where the term “summons” is used, but it is a proceeding instituted by the board of directors, and jurisdiction is obtained by a notice published by the direction of the court.

In the original act it was specially provided, as is seen by the section of the statute hereinafter quoted, that the court shall fix a time for the hearing of the petition and shall order the clerk of the court to give and publish a notice of the filing of such pleading. Notwithstanding this particular provision has been omitted from the act of 1919, a careful examination of the act will disclose that there is no intention to change the manner of acquiring jurisdiction. The judge of the court fixes the time of the hearing, based upon a petition duly filed. While some of the language of Section 30, Chapter 223, Laws of 1911, relating to the details of the notice, has been omitted by the revision of that section appearing in Chapter 390, Laws of 1919, it is the intention of the Confirmation Act that the notice of the proceedings should be given by direction of the judge of the circuit court, who shall fix the time and place of the hearing, and that such notice should be signed by the clerk of the court. This has been the practical construction placed upon the amended section throughout the state.

In 1911, our legislative assembly adopted as a part of the irrigation law of this state the Confirmation Act of California. See Chapter 223, Gen. Laws of Oregon, 1911. At Section 33 of that act it is provided that:

“Said proceeding shall be a proceeding in the nature of a proceeding in rem, and the practice and procedure therein shall follow the practice and procedure of suits in equity, so far as the same shall be consistent with the determination sought to be obtained, except as herein provided.”

This provision has been retained in two subsequent amendments of the act. Its meaning has not been enlarged. It was not intended to cover the process of summoning the parties into court. The act specially provided for the service of notice to all interested persons and parties. Section 30 of the act provided the following method of acquiring jurisdiction:'

“The court shall fix the time for the hearing of said petition and shall order the clerk of the court to give and publish a notice of the filing of said petition. The notice shall be given and published for three successive weeks in a newspaper published in the county where the office of the district is situated.”

The purpose of the notice remains the same.

“The jurisdiction of the said irrigation district, or drainage district, of each and all of the freeholders, assessment payers, and legal voters therein shall be obtained by the publication of notice directed to said district, and to ‘all freeholders, legal voters and assessment payers within said district.7 # * Such notice shall be served on all parties in interest, by publication thereof for at least once a week, for three successive weeks, in some newspaper of general circulation published in the county where said proceeding is pending and jurisdiction shall be complete within ten days after the full publication of said notice as herein provided.” Section 2, Chap. 390, Gen. Laws 1919.

The general rule is thus stated in 3 Kinney on Irrigation and Water Rights, page 2562:

“When such an action is brought, the court must fix the time for the hearing, and a notice of the same must be published in accordance with the statute. Such notice shall state the time and place fixed for the hearing and the prayer of the petitioners, and that any person interested in the- organization of such district, or in the proceedings for the issue and sale of the bonds, may, on or before the day fixed for the hearing of said petition, demur or answer the said petition. These confirmation proceedings being in rem, the land owners are bound thereby if there has been a due publication of the notice thereof in accordance with the terms of the statute, notwithstanding there has been no personal service upon them.”

From the briefs and abstract, this appears to be a friendly suit, carried on for the purpose of securing the judicial examination and judgment of this court as to the regularity of the proceedings in the authorization and issuance of bonds of the Harney Valley Irrigation District in a sum not exceeding $2,200,000, in order to facilitate their sale. Notwithstanding that the suit is amicable, we have given the allegations of the petition, the proceedings relating to the securing of jurisdiction, the answer, the evidence offered in support of the allegations of the petition, the findings of fact, the conclusions of law and the decree, our most careful attention and consideration, and must agree with the lower court: Medford Irr. Dist. v. Hill, 96 Or. 649 (190 Pac. 957).

Speaking of the “Confirmation Act” in Twohy Bros. Co. v. Ochoco Irr. Dist., 108 Or. 1 (210 Pac. 873), we quoted the following from 3 Kinney on Irrigation and Water Eights (2 ed.), pages 2561, 2562:

“The objects of these provisions are to provide a security for investors, prevent fraud, and to promote the advantage of the irrigation districts by enabling them to secure a decree as to the validity of issued bonds, which will be binding upon all the world. * * The confirmation proceeding is denominated in the acts as a special proceeding, and it is clearly in the nature of an action in rem, the object being to determine the status of the district and its power to issue valid bonds.”

This cause is affirmed. Affirmed.