273 F. 825 | D. Idaho | 1921
On March 3, 1906, the government, having on foot a project for the irrigation of a large body of arid lands near Boise, Idaho, entered into a contract with the plaintiff corporation by which it took over the ownership and control of a canal system theretofore constructed by the plaintiff, and diverting water from the Boise river for use upon lands owned by its stockholders. From the enlarged system Ihe plaintiff and its stockholders were to receive from year to year the water which they had appropriated, the amount of which was stipulated, and in turn they were to share in the burden of maintaining and operating the system. Their obligation in this respect is defined in the following paragraph of the agreement:
“It is further agreed that an equitable proportion of the cost of maintaining and operating the system of irrigation works which may be constructed by the United States on the south side of the Boise Valley, as may be determined by the Secretary of the Interior, shall be paid to the United States*826 by the holders of said certificates of stock. The holders of rights under said contracts with the company shall pay to the United States the cost of maintaining and operating such system of irrigation works in accordance with the terms of their said contract.”
The enlarged system was not completed until 1917, and in the meantime, from year to year, the project manager made charges against the plaintiff upon the basis of a proportionate part of the expense of maintaining and operating that part of the system approximating in length and location the canal as it existed when taken over by the government. These charges the plaintiff paid. Upon the completion of the project the Secretary apportioned to the plaintiff, each year, for the years. 1918, 1919, and 1920, an equitable part of the expense of maintaining and operating the.whole of the enlarged system, as constructed by the government, on the south side of Boise Valley, and these bills plaintiff declined to pay, and because of such refusal the defendant Bond, who is the project manager, threatened to withhold the delivery of water from .the plaintiff’s stockholders. To prevent such threatened action, the plaintiff brought this suit and procured a temporary restraining order. The cause is now submitted upon the merits.
Finally, the bills presented by the project management and paid by the plaintiff, from 1906 to 1917, do not necessarily imply a construction of the contract inconsistent with that now maintained by the Secretary. The system was incomplete, and the method adopted may not unreasonably have been regarded as fairly equitable during the period of construction. The Secretary is not bound to adopt, or, having once adopted, permanently to employ, any specific method of making the apportionment. The conditions are not fixed or invariable. Admittedly the amount of the charge against the plaintiff may change from year to year, and it is conceivable even that the proportion to be assigned the plaintiff will be subject to a measure of variation because of changing conditions. But surely the Secretary is not limited to any given method of making the apportionment. His one substantive duty is to determine what is plaintiff’s equitable proportion, not of a part, but of the entire burden, and the use of one method in the performance of the task this year is not necessarily inconsistent with the use of another method next year. The parties have the right to insist upon results, but not the means or method, and so long as the result is within the terms of the contract, and the Secretary acts reasonably and in good faith, there is no legal ground for complaint. The principle of apportioning maintenance .costs as provided lor in the contract, and followed by the Secretary in making the charges in controversy, generally prevails in actual practice, and is recognized by the Supreme Court of the state as being just. Niday v. Barker, 16 Idaho, 73, 101 Pac. 254; Colburn v. Wilson, 24 Idaho, 94, 132 Pac. 579. And, as already intimated, there is no claim here that, applying this rule, the Secretary made an inequitable apportionment.
It follows that the bill must be dismissed, and such will be the decree.