105 P. 562 | Idaho | 1909
— On March 18, 1909, the judge of the district court, in and for Elmore county, appointed a receiver to take charge of the following property;
“That certain water right to the waters of Little Camas creek, amounting to 500 cubic feet per second, the notice of which is dated the twenty-seventh day of October, 1902, and recorded in book 18 of Water Rights, at page 112; also a water right to the waters of Wood creek to the extent of 100 cubic feet per second, the notice of which is dated the twenty-fifth day of October, 1902, and is recorded in book 18 of Water Rights, at page 113; also a water right to the waters of Lime creek to the extent of 200 cubic feet per second, notice of which is dated the twenty-fifth day of October, 1902, and is recorded in book 18 of Water Rights, at page 114; also a water right recorded in the name of Daniel W. Greenburg to the waters of Cat creek and Camas creek to the amount of 500 cubic feet per second, notice of which is dated the thirteenth day of April, 1902, and is recorded in book 18 of Water Rights, at page 79, all in the records of Elmore county, state of Idaho; also a certain reservoir on Long Tom creek in said Elmore county, capable of empounding about 2,600 acre feet of water, which said reservoir is located in sections 13, 14, 15, 22, 23, 24, 25, 26, 27, 34, 35, 36, township 1 south, range 7 east, and in sections 1 and 2, township 2 south, range '7 east, and in sections 30 and 31, township 1 south, range 8 east of Boise meridian; also a certain reservoir on Little Camas creek, capable of empounding about 16,000 acre feet of water, which reservoir is situated in sections 9, 10, 11, 15, 16, 21, and 22, township 1 south, range 9 east of*276 Boise meridian; also a conduit or canal connecting Little Camas reservoir with Long Tom reservoir; and also the various distributing canals which take the water from Long Tom reservoir, or from the canyon at the mouth of Canyon creek and distribute it to the water users under said system, ■all of the above property being known as the Great Western Beet Sugar Company’s Irrigation System; also those certain water rights on Rattlesnake creek and Canyon creek known as the water rights of the Elmore County Irrigated Farms Association, and the Mountain Home reservoir, having a capacity to empound about 5,130 acre feet of water, and to the canals and ditches which take the water to the water users under said reservoir and canals; also that certain right to the flood waters of Long Tom acquired by the Great Western Beet Sugar Company by actually empounding the flood waters of said creek in the Long Tom reservoir above described. ’ ’
From this order the Elmore County Irrigated Farms Association appeals. The -action was brought in the district court by the Idaho Fruit Land Co., Ltd., a corporation, plaintiff, against the Great Western Beet Sugar Co., a corporation, and the Elmore County Irrigated Farms Association, a corporation, defendants. _
In the complaint the plaintiff alleges that it is a corporation organized under the laws of the state of Idaho, with its principal place of business at Mountain Home, Elmore county; that the defendant Great Western Beet Sugar Company is a corporation organized under the laws- of the state of Washington, and ever since about the year 1902 has been doing business in the state of Idaho, at Mountain Home in said Elmore county; that the defendant, the Elmore County Irrigated Farms Association, is a corporation organized under the laws of the state of Washington, and ever since about the year 1901 has been doing business as such corporation in Elmore county, but has had no officers or place of business or designated agent within said county; that the plaintiff, the Idaho Fruit Land Company, is the owner of a large tract of land, to wit, about one thousand acres, and that there
Upon these allegations plaintiff prays that a decree be entered decreeing that the irrigation system described is the property of the plaintiff and others, and that the defendants have no right, title or interest therein; for the appointment of a receiver, and for an injunction preventing the transfer
To this complaint the Beet Sugar Company filed an answer and put in issue the ownership of the irrigation system described in the complaint, the way the funds were raised to construct such system, the amount realized from the sale of water rights as alleged in the complaint, whether the system of the Irrigated Farms Association is a part of the Beet Sugar system, and whether the Beet Sugar Company has any interest therein except a one-sixth interest in the capital stock of said company. It alleges that in the year 1904 it leased from the Irrigated Farms Association its plant, and during the years 1905 and 1906 used the same for the distribution of waters to its customers, and in return distributed water to the patrons of the Irrigated Farms Association; and in 1905 sold water rights to many people, and that the two systems were so constructed that they could be used as one system, and in consideration of the Beet Sugar Company’s keeping the Irrigated Farms Association’s system in repair and distributing water for the same and paying the taxes, the same constituting a rental for such system, that this, defendant had the privilege of distributing its water to its patrons through said system, and that such arrangement was continued down to and including the year 1908, but that the Irrigated Farms Association has now terminated said agreement.
Other admissions and allegations are made which are unimportant in so far as this application is concerned. These are matters which in the main relate to the use of the funds and the detailed description of the two systems and the plaintiff’s interest and ownership in said property and their right to receive water. Admission is made, however, that the plaintiff and a large number of settlers have settled upon and improved lands under said system; that they have invested considerable money in improvements, and are dependent upon their lands to support themselves and families; that there is no other means of obtaining water for the irrigation of the same; that if they fail to secure water during .the season of 1909, they will suffer damage; that it has no funds
The Elmore County Irrigated Farms Association also filed an answer, in which it denies that now or at any time since May 1, 1907, it has been doing business as such corporation in the state of Idaho; denies that the plaintiff or any of the persons, for whom it claims to appear, own water rights or any right whatever to the waters controlled by the defendant; that its.system is independent from that of the Beet Sugar Company, and that the same do not compose one system, and that it is the owner of its own system and has legal title thereto; denies that in 1904 or at any other time it leased to the Beet Sugar Company, or that the Beet Sugar Company has ever had any right to use said property, and alleges that from April 4, 1902, to July, 1907, it had a duly appointed statutory agent at Mountain Home, Elmore county, Idaho, and since April 4, 1902, in all other respects complied with the laws of the state. It denies on information the allegations with reference to the use of the money paid by plaintiff and others to the Beet Sugar Company, and that its system is filled with sand and gravel, except to the extent of a year’s use, and alleges that it is ready, able and willing to clean out said canals and ditches and put the same in shape for the distribution of water for the season of 1909; denies that the plaintiff has any interest, legal or equitable, in or to its property, and denies its insolvency and alleges that it is the owner of property of a value of $150,000, unencumbered, and has means and intends to protect its property and to put the same in proper shape for the distribution of water during the irrigating season of 1909. Other allegations are contained in this answer which are Immaterial in so far as bearing upon the application for the appointment of a receiver.
At the hearing for the appointment of a receiver, the plaintiff filed affidavits showing the condition of the irrigation system and the necessity for immediate repairs and the damage that would result if the repairs were not made, and the plan and method of operating the two systems as one.
We have no doubt whatever but that the court had power •and jurisdiction to appoint a receiver of the Great Western Beet Sugar Company’s property, as it clearly appears that this company is insolvent; that plaintiff and others had contractual relations with such company of some kind which gave them certain rights with reference to receiving water from such company, and that the company was in such a financial condition that it was unable longer to furnish water or preserve its property or fulfill its obligations. In fact, every fact necessary to be established to authorize the appointment of a receiver seems to be admitted in the answer of the Beet Sugar Company, and we shall dismiss from further consideration the question as to the appointment of a receiver of this company, as this company has not appealed from the order of the court appointing such receiver.
It is, however, argued most strenuously by counsel for the Irrigated Farms Association that the facts appearing in the •record do not show that the court had jurisdiction to appoint a receiver of this company. It does appear that this company was the owner of certain water rights and an irrigation system for the sale, rental and distribution of the public waters of the state.' It is alleged in the complaint that the Irrigated Farms Association leased its property and irrigation system to the Beet Sugar Company, which made contracts to furnish water. Counsel for respondent contends that this allegation brings the Irrigated Farms Association, within the provisions of sec. 15 of art. 11 of the constitution of this state, as follows: “The legislature shall not pass any;
Sec. 1, art. 15 of the constitution of this state declares that “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 sec. 2 of the same article is as follows: “The right to collect rates or compensation for the use of water supplied to any county, city or town, or water district, or the inhabitants thereof, is a franchise, and cannot be exercised except by authority of and in the manner prescribed by law.” And sec. 4 of the same article declares: “Whenever any waters have been, or shall be, appropriated, or used for agricultural purposes, under a sale, rental or distribution thereof, such sale, rental or distribution shall be deemed an exclusive dedication to such use; and whenever such waters, so dedicated, shall have once been sold, rented or distributed to any person who has settled upon or improved land for agricultural purposes, with the view of receiving the benefit of such water under such dedication, such person, his heirs, .executors, administrators, successors or assigns, shall not thereafter, without his consent, be deprived of the annual use of the same, when needed
We thus see that under these constitutional provisions the water appropriated by the appellant was dedicated to a public use, and that the right to collect rates or compensation is a franchise; and when such waters shall have once been sold, rented or distributed to any person, who has settled upon or improved land- for agricultural purposes, such person shall not thereafter without his consent be deprived of the annual use of the same. The appellant, then, was exercising within the state of Idaho a franchise under the provisions of the constitution; it was engaged in serving the public. If the appellant leased its irrigation system to the Beet Sugar Company, as alleged in the complaint, and the Beet Sugar Company made contracts with the appellant and others for water, then the liability of the appellant, under the provisions of the constitution, ought not to be finally determined upon an application for the appointment of a receiver; but such question should be left open to final adjudication upon its merits. According to the pleadings, the Irrigated Farms Association leased its system to the Beet Sugar Company, not only for the purpose of serving its own patrons, but also the patrons of thé Beet Sugar Company; and it appears for at least three years the system has been so used with the knowledge and consent of the appellant. To now hold, under this state of facts, and after such system has become in disrepair and unsuitable and inadequate to supply the persons who have made contracts for water, that the court has no jurisdiction to appoint a receiver for the preservation of such property, would, in our judgment, be a manifest injustice to the plaintiff and those who have made contracts with the Beet Sugar Company. The exact relation of the parties ought not to be determined upon a preliminary hearing such as arises upon the application for the appointment of a receiver to preserve the property pending the litigation.
Eev. Codes, see. 4329, expressly authorizes and empowers the appointment of a receiver “between partners or others jointly owning or jointly interested in any property or fund, on the application of the plaintiff or of any party whose
The appellant has not been in possession of this property for at least three years, has permitted the same to be operated by the Beet Sugar Company, now an insolvent corporation, has taken no steps to repair the property, which it is admitted is in bad condition and unsuitablé to do duty as an irrigation system, has not complied with the laws of this state as required of foreign corporations, and the existence of these facts, and the fact that the plaintiff claims to have acquired an interest in the property of the appellant, we think fully authorized and empowered the trial court to exercise the judicial discretion vested in it to appoint a receiver for the preservation of the property in litigation, pending such litigation.
The appellant admits that its canals and ditches are partially filled with sand and gravel, but alleges that it is only to the extent usual after a year’s use and such as is customary in all irrigation systems; and alleges that it is ready, able and willing to clean out said canals and ditches and to put the same in shape for the proper distribution of its water prior to the irrigation season of 1909; and that plaintiff has no interest, legal or equitable, in its property.
While this answer is made, yet there was no evidence before the trial judge showing the good intentions on the part of the appellant to perform the acts alleged in its answer. It may have been ready, able and willing to put the system in condition to be used, and yet not have done so. In fact, one of the first steps, in our opinion, which would have tended to show its good faith, would have been a compliance with the laws of this state in appointing an agent and qualifying under the law, so as to entitle it, as a foreign corporation, to do business in this state; and without some act on its part, moving in the direction of putting its irrigation system in a condition to protect the rights of the plaintiff, we believe the court was perfectly justified and had full jurisdiction to take charge of such property pending the trial of the interest which plain
At the hearing for the appointment of a receiver, the appellant offered and asked the trial judge to consider its answer filed in said cause. This was denied by the trial judge, and this is assigned as error. We think the trial court should have considered this answer. The appellant had a right to file its answer and defend its property, even though it had not complied with the laws of this state as a foreign corporation. This fact did not deny it the right to protect its title and right of possession, as against the claim of plaintiff, to have acquired an interest therein. (War Eagle Consolidated Min. Co. v. Dickie, 14 Ida. 534, 94 Pac. 1034.)
The failure, however, of the trial court to consider the answer of the appellant could have made no difference in the power or jurisdiction of the judge to appoint such receiver. Even though such answer be considered, still .the record, in our judgment, fully authorized and empowered the trial court to appoint a receiver. Finding no error in the record, the order is affirmed. Costs awarded to respondent.