Jensen v. Boise-Kuna Irr. Dist.

269 P.2d 755

JENSEN et ux. IRR. DIST.

BOISE-KUNA

No. 7967.

Supreme of Idaho. Court

April 5, 1954.

lSá Greene, Boise, George

Maurice H. W. appellant. Grebe, Kuna, Boise, Oros, Edwin Snow and Walter M. respondents. TAYLOR, Justice. years prior

For several water had upon accumulating been and under certain lands within the defendant (appel- district adjacent in and to what lant) is known as Lake. This Thomason accumulation con- seepage and waste sisted water resulting irrigation from the of other lands in the had reached such an extent that valuable farm lands were inundated or part, that in amount suf- farming. for the first bogged and unfit rendered the patry the second recognized liability for ficient allow The district had during feet the part pump 6.4 second damages these lands owners of certain will diverted into irrigation threat- season be damages other were claims lake; ened. who said (respondents) Plaintiffs wife, of some of husband and were owners “Whereas, party of the the second the damaged November land. On agree hereby to transfer part does adopted the directors of defendant district party part first the a deed to con- authorizing district to resolution Right, granting Water Cruzen plaintiffs with the the removal tract right to 100 inches thereof the holder surplus lake. Accord- water from the River, from Boise flow continuous 12, 1946, ingly, contracts November two on part party first order that terms, except executed, identical in were Thomason may augment the flow into pro- Jensen, with Rex one made S. drainage that the wa- Lake in the event of water and the viding for 6.4 feet second fall flowing therein should below ters providing for 4 Jensen, Roxy other with C. requirement. pumping feet second 6.4 contracts con- feet of These second water. Therefore, “Now in consideration provisions: the following tain part premises, party of the first “Whereas, Lake is fed Thomason seep- agrees drainage, hereby to allow wells, seepage springs, arising spring waste waters age, from and waste waters lands within the into the said to flow district District, Irrigation Kuna Boise which amount to Lake in sufficient in the said -accumulates lake part to party of second permit the quantity lake cover- flow feet continuous pump 6.4 second causing farm land and ing valuable during each said lake from Project Boise pay execution of subsequent to the season damage claims; large annual contract, and in event that the this fall “Whereas, party drainage waters shall below second said amount, party first enter into part desires to a contract said by augment to said flow water party part agrees to pump the first including pumping other sources out of Thomason Lake re- from and water wells, drilling existing of addi- Proj- and Boise party the first the from lieve drainage construction of damage, wells or liability for further and tional of ect necessary. delivery of if money consideration ditches agrees of a in lieu stipulated shall be sub- as accept drainage water above for such service an ac- by unavoidable part ject to and limited party the of on the of agreement cident, during part canal factors contracted for of that sea- breaks or other and limiting capacity, and son there was at canal drouth no water all available. such other limitations as lands within brought by plaintiffs This action was subject are to. crops. damages for In ad- resulting to their party part,

“The of the second alleging dition to the failure of the defend- delivery consideration of the of such contracts, perform required ant by as by party part, of the first January plaintiffs allege that in agrees pay assume and all claims defendant, by resolution of its board of damage to lands within the district directors, Reynolds Creek granted to the of caused overflow Thom- Irrigation permission wells District to drill ason Lake.” on lands of defend- boundaries ant district and take therefrom for time, plaintiffs At the were the owners upon Reynolds use lands within the Creek of, lying 860 acres land outside District; Irrigation recites resolution to, adjacent irrigation district and in permit that granted purpose for the vicinity They Thomason Lake. ob- accomplishing the removal wa- excess permits tained appropriation for the ter from lands within the defendant district and, water from the lake upon in reliance and in the area where the wells were to be contracts, and at great expense, they drilled; Reynolds Irrigation that the Creek plant, installed a pumping pipe line, dis- pursuant District such resolution drilled tributing system and leveled corrugated (which designated three wells in the area this land outside the district, in order to is some two miles distant from Thomason effect its by use of the water ac- Lake); flow from that the these wells de- cumulating in Thomason Lake vicin- pleted destroyed ity. By flow this they means farmed and irri- seepage water into Thomason Lake. gated part of these years lands 1948and 1949. to strike this defendant moved

In 1949 the water available in complaint ground lake of the on the fell below the 10.4 second feet alleged plaintiffs’ contracted immaterial to facts are plaintiffs for and made upon demand the cause of action. The court’s denial of this defendant that it the supply increase assigned one as error. The allegations motion or more of the means mentioned in evidence, the con- regarded as a pleading Except tracts. experimental for some plaintiffs’ work which would be admissible under and pumping tests, early in the irrigation general allegation that defendant failed to season of plaintiffs’ contract; perform specifically demands were not met. In 1950 the water available to what could failed do do to make avail- plaintiffs again fell below and, the amount able the water contracted on the.

138

contrary, knowingly permitted which water increase in the amount of wa- resultant seeped would have flowed into Thomason required properly ter the lands irrigate to Lake to be drawn district, off elsewhere. See Frost re- within the the defendant was Chaplin Co., 274, to, Motor quired did, 138 Me. A.2d 25 full extent utilize the 225, 139 A.L.R. 1144. delivering to capacity its canal in water district, by lands of which reason answer, up In its the defendant set several impossible sup- it was to deliver the normal defenses, affirmative were some of which ply seepage of waste and to Thomason water plaintiffs. stricken In its on motion Lake; that to including flowing pleads supple- amended defendant answer during non-irrigation Thomason Lake agreements mental into between the entered season, and the the lake flow that did reach purpose parties, December for the irrigation season, during the a there was pleaded by the clarifying the contracts plaintiffs total amount made available to the plaintiffs. supplemental these effect of requirements to sufficient meet the agreements pump plaintiffs to is to allow plaintiffs’ year contracts for the win- during water from Lake Thomason shortage due to their own failure to was overflow, develop to season ter to avoid store, for, properly care and utilize the wa- amount contracted water additional to the available. ter land, for, drilling own wells on their and, water thus providing that none of the dis- defense In its second affirmative con- developed to be was withdrawn or in year 1950 during the alleges that trict feet to be a of the 10.4 second sidered it plaintiffs drilled cooperation with the “except by the defendant available made holes, and well, test additional additional make necessary use said to to when the flow of to tests increase pumping made deficiency periods of when drouth up the into Thomason waste water seepage and supply seepage and waste available doing Lake; prevented from that it up the fail to make from the district be- existing wells pumping from additional required amount.” way right a unable secure it was cause power a line time the wells defend- defense the first affirmative As a during the remainder of flow augment allowed all available alleges that has ant plain- season; meet it could not waste, that that water, not re- surplus seepage and deepening of tiffs’ demand for of lands within quired Lake leading ditch during Lake into Thomason to flow required supply water 1950; because was commencing irrigation season approximately 170 acres began that ditch to and from 1950, period of drouth a June, district; that the wa- land within irrigation of rest of that through the extended drainage ditch had to be checked in the of the drouth and ter reason season; up to a for, level from it would flow into which district and is held in trust dedi- to, apart cated lateral those lands. and set supplying the use and purposes provided by law. Under the The cause was without tried to the court provisions C.S., 4346and §§ [§§ jury findings and con- making after 43-322, I.C.], power 43-304 and the of clusions, against the judgment court entered the directors other or officersof an irri- damages the defendant for in the sum of gation any district is act limited, and $14,910.05. The defendant concedes that express implied done in excess or evidence, ample the though conflicting, is provisions by the such di- of statute findings respect to sustain the to the rectors or other is ultra vires. officers damage. amount of assigned The errors However, provisions the foregoing relate to other issues. prohibit delivery statutes do not of water users dis- outside of the One of the affirmative defenses trict by when the same is not needed stricken from the original alleges answer * * * users within the district. the contracts were ultra ruling vires. This appropriation and diversion of wa- was erroneous. defense of ultra vires by district, officers, ters through its proper case, is available in a and must be purchase or the system of a constructed pleaded. Carlson, 742, Meholin v. 17 Idaho in funds, or in by whole be- 755; Development 107 Corp. P. Land v. comes the property district, Cannaday, 233, 976; 74 Idaho 258 P.2d 19 is held in trust for the landowners with- C.J.S., Corporations, 981 b. The same § it, imposed and no burden up- can be question presented by is also ruling on on it for delivery or maintenance of plaintiffs’ defendant’s demurrer to com canals or laterals delivery for the plaint. assignments require These a con beyond boundaries of. powers sideration functions and district, and by no contract made irrigation an district. directors of a district to deliver water “Irrigation districts are creatures of beyond its liability boundaries is a They quasi public the statutes. or * * * which the district can be held. municipal corporations, and as such persons all dealing with the directors or power such have as given is officers district are bound to take statute, by them or such as is necessarily of the various notice con- enactments * * * implied. ferring authority upon the directors or provisions “Under the of C.S. officersof the district and the § limitation 43-316, I.C.], legal 4350 powers.” title to of their [§ Yaden v. Gem Irr. acquired property Dist., 300, all district 308, Idaho at pages 37 309 operation immediately of law vests 216 P. 252. “Any irrigation irrigation dis- heretofore

The characterization of an organized, organized or be quasi-municipal corporation trict hereafter to as a may, necessary, appears Lewiston case of whenever somewhat modified in the Gilmore, proper any beneficial irrigation District or to drain Orchards district, said: lands within whether for 377, 23 where it was said Idaho P.2d actually requiring the benefit of the land “ * * * is a irrigation district an protection for the of other or inci- public corporation having such district, lands within said whether municipal as powers are neces- dental irrigation actually works ac- have been management sary its internal quired not, or cause or constructed pri- proper Its conduct of its business. drainage canals con- and works to be op- acquisition mary purpose structed and to this end such district system irrigation as a eration of respects pow- shall all have the same enterprise for the benefit business authority er and as now conferred landowners may respecting be hereafter conferred being trust for them in property held in irrigation, powers and all the conferred proprietary capacity, while secondari- upon irrigation laws districts under the incidentally municipal ly and certain respect of this state with powers have gov- been conferred for its drainage. shall be construed include to * * and regulation ernment now, or irrigation “Any district 382, page 23 page 53 Idaho at P.2d at organized un- may hereafter be which 722. Idaho, shall of the der the laws state public a irrigation district “An drain- authority construct to have the however, organized, quasi corporation, draining purpose of for the age works private for the a business conduct to irri- such lands within any land or its of land within owners of the benefit district, authority shall and such gation * (cid:127)* * is, in the administra It limits. in of directors by exercised the board be , business, ” the owner tion of its * * * 43-305, I.C. its discretion. § in a proprietary rather than system in reference, of incorporation, by The must assume capacity, and public ownership.” irriga applicable to district powers of proprietary the bear the burdens power's forth etc., tion, general the set Nampa Nampa, includes v. ty Ci I.C., 787, specificallyincludes 779, 43-304, which page at Dist., 19 Idaho § Irr. execute all neces power to “make and Stephenson v. page at 115 982. P. 979 provisions it From these 189, sary 288 contracts”. Dist., Idaho 49 P. Pioneer Irr. subject matter of con- 421, is clear 69 1225. A.L.R.

141 any trict for district made of the which tracts district; contracts lands within the that the said not ultra vires. plaintiffs is district, prior made making water to be defendant to the identify the by their terms upon, “seepage herein sued certi- plaintiffs contracts to the as available represented Hence, attempt plaintiffs fied and no that waters.” and waste obligate surplus, said water was the district waste and directors to by the made plaintiffs district; abandoned water of to the and it make available deliver or estopped by deny rights owned in this or water action the any of the water facts available, appurtenant represented so certified district, n dedicated n plaintiffs.” the district. lands contracts other water mentioned court, As held this and as ex right water is the inches of Cruzen 100 pressly provided by 43-316, I.C., the title § “in plaintiffs by the (cid:127)deeded to the defendant property acquired to all by an irrigation dis n orderthat the may party first trict, including its rights, water is vested Lake in augment the flow into in the district and held flowing drainage waters event for, trust and dedicated and apart to, set 10.4 second should fall below” the therein purposes uses set forth in the law. acquired water, As the district feet. to this Dist., Gem Yaden v. Irr. 300, 37 Idaho 216 expressed obligation burdened with title 250; Wilson, Colburn P. v. 337, 23 Idaho required and was therefore in the contracts 130 P. 381. plaintiffs to the to make that available expressed contingency arose.

whenever any It follows that water owned Dist., etc., Idaho Nampa, Irr. Gerber by the district and thus dedicated to the ir Dist., 104; Irr. Yaden v. Gem 116 P. rigation within the of lands cannot Nampa Meridian Irr. Dist. v. supra; & supplied lands outside be the district so 75; Adams v. Briggs, 27 Idaho P. proper irrigation for long as it is needed Dist., Nampa Irr. 73 Idaho & Meridian of lands within the district. The officers 254 P.2d 407. power district have no to contract fol- Appellant assigns as error the also delivery supplying lowing finding: Any use contract outside the district. at impose tempting obligation create or an seepage and waste water so “That the supply make Lake and in on the district h> or available accumulated any purpose vicinity causing any such water for such is ul damage that and to the aforesaid, any It also follows that lands the district as were tra vires and void. respects surplus attempt by and of the district to in all waste waters directors obligation cannot be made such an by the dis- create not needed or available and 142 594, 286; Colvin, 105 estoppel against the district. Koch v. 110 Mont. basis legis- Falls

Otherwise, purpose 334; P.2d School Dist. No. Twin and 8 in will by Falls, 30 County etc., Co., lature, public policy v. Twin Ins. and the established 1174; 400, High- water to lands 164 its dedication of such Idaho P. Creek Deer ill- district, way Doumecq Highway could be defeated 37 Dist., Dist. v. within 601, Crystal Lloyd 371; the directors. Idaho 218 P. Post advised contracts of holding 20, therefore, Legion No. was, in error in The American v. court Jefferson deny 158, 348; estopped to that County, 237 Worl- that the defendant is 72 Idaho P.2d 810; plain- Davis, 217, to the made available ton Idaho P.2d the water to be v. 73 249 Co., 28 not need- surplus and and Magnesite tiffs was all waste State v. Northwest Estop- irri- to, 643; for by, 1, C.J.S., district ed or available 182 P.2d 31 Wash.2d any therein. pel, the lands gation of 141. § only, because error, however, technical is Appellant also attacks the con it occurs refers finding in which they question ground that tracts in on the accumulating seepage and waste I.C., 8, violate and 43-322, Art. § § Lake, the record all of which in Thpmason constitution. Section 43-322 authorizes the surplus waste, actually and be shows to issuance warrants the directors to de irrigation of the for not available fray expenses care, repair, operation, irrigation of used for The water lands. improvement works of dis district, heretofore acres 170 trict, anticipat “not to exceed the district’s mentioned, out of the is taken showing ed revenue.” No made which was Thomason Lake and it reaches ditch-before expense finding would necessitate a waters not to be confused hence is required by the contract would exceed the no finding. There referred to anticipated district’s revenues. The consti - estoppel as to invoke occasion provision part pro tutional referred into finding, in the because referred to county, city, town, “No township; vides that be claiming such is not the deféndant education, board of or school or Supporting surplus and waste. other than state, other subdivision of the shall incur contract, that a which would our conclusion any indebtedness, liability, any or man any irrigation district to deliver obligate an ner, any purpose, for exceeding in that for use outside the district dedicated year, provided the income and revenue void, estoppel that can- vires is ultra ** * year, such An irriga contract, in aid such a invoked be not municipality tion district not a as following authorities: v. section, Jenison and, to in referred this further, the Redfield, Maclay Cal. 87 P. proviso section contains not to 62; Dist., applied Irr. Mont. 3 P.2d ordinary necessary Missoula be to “the stipulated delivery as above shall of of water general laws by the expenses authorized subject unavoidable oper- be to and limited expenses The of the state.” accident, breaks or other factors pro- canal contemplated by the ations are such as capacity, limiting drouth and such canal viso. other limitations as lands the district the con urges that Appellant also subject dug to.” Had the district addi- constitu of Art. 8 of tracts violate 4§ wells, tional constructed additional drain- to reference also has tion. This section ditches, age pumping and resorted to in a state, municipalities and subdivisions available, fide effort to make the water bona “lend, pledge to or forbids such and supply then failed to and because directly indirect or credit or faith thereof capacity, of drouth or want canal its de- in manner, to, any ly, or in aid of any in complete. have been This fense would is so * * contract, A such as dividual *.” because as heretofore stated it could in not involved, upon and a valid suffi- those based any compelled supply any event be to of the consideration, pay to individual cient to an per- dedicated water of the district to the may obligation the district law- which plaintiffs. formance of contracts with incur, pledging of fully lending a not is, defendant, As having it failed do to the credit or faith of the district. do, agreed to and what could what have water, supply done to its defense fails. valid, remaining being contracts

The supports the record question is whether assigns Appellant the ruling of properly court The thereon. judgment permitting Tucker, the witness the court testing joint- done and work found engineer, give opinion to his civil in the second parties (referred ly by some “There was connection the under to increase defense) effort in an affirmative between ground water these two wells.” Lake, was done the flow referred to being The wells wells from require contracts The 1949. water flows into Thomason which Lake and sources in- other from the flow “augment by Reynolds drilled the wells Creek Irriga wells, existing drill- from cluding pumping District in another area. The engineer tion or construction wells additional ing of measurements of flow before, had made at necessary.” if With drainage ditches of, subsequently uncap the time well drilled the one additional exception wells, Reynolds ping compar things done ei- were of these none of the two elevations ative areas. The ad or 1950. ther in opinion largely evidence mission dis cretionary trial court. 3 Am.Jur., defense the first affirmative toAs Error, 1036 and ap- Appeal & 1037. Its capacity, §§ want canal drouth is for the effect trier of weight is : provision in the contracts “The plicable láá spe-

facts, judgment No is affirmed. re- judge. case the trial Costs in this was shown qualification of the witness spondents. cial whole

except issue those noted above. Reynolds was col- wells effect of the PORTER, J., THOMAS, C. J., and Mc- lateral, ability defendant’s going QUADE, J.,D. concur. Pre- perform contract. willingness to its Reynolds did draw if the wells sumably area, Lake away the Thomason from KEETON, (dissenting). Justice pumping at restored have been could my opinion powers In of the directors agreed. this was Since there as wells of the defendant irrigation district as ex- unimportant done, ruling becomes not provided by pressly statute cannot be con- supported amply judgment because encompass strued to the contract dispute prejudice perform, and no

by the failure here. liability The attempted to be here opinion. the admission of results from created, if followed logical conclu- permit ruling is the assigned Also sion, could, my opinion, confiscate the to answer witness Carter ting defendant’s property land owners in the district. ques hypothetical an on cross-examination flow opinion that from an eliciting tion I consider the contract question ultra the flow from Reynolds wells affected vires and void. What the rights of the objec The Thomason Lake. at the wells plaintiffs might be because moneys ex- proper not cross-exam that was tion was pended in furtherance of obligations, plaintiffs’ ination, part of case was a in assumed is not before us for determination. question not did include chief, Irrigation district directors have necessary opin facts to such material all powers upon as are conferred them by stat- was shown be well witness ion. ute or necessarily implied from those ex- with the area and familiar involv qualified pressly conferred, powers and such do not largely is also matter left to This ed. encompass the liability here attempted to be judge. Am.Jur., trial discretion assumed. contract violates Secs. 43— Error, 1036 and 1037. We Appeal & §§ 43-322, 304 and Hence appellant I.C. judgment from rul prejudice find no should be ing. reversed.

Case Details

Case Name: Jensen v. Boise-Kuna Irr. Dist.

Court Name: Idaho Supreme Court

Date Published: Apr 5, 1954

Citation: 269 P.2d 755

Docket Number: 7967

Court Abbreviation: Idaho