226 P. 165 | Idaho | 1924
— On April 12, 1909, the Twin Palls Land & Water Company entered into a contract in writing with W. EL Thomas, who had theretofore contracted with the state for the purchase of forty acres of school land, wherein and whereby the company sold and Thomas purchased forty shares of water rights in the dam and canal system constructed by the company, each share of which entitled the purchaser to a supply of irrigating water amounting to a flow of one-eightieth of a second-foot per acre. $124 was paid upon the purchase price, and the ■balance of $496 was to be paid in subsequent instalments. The purchaser thereafter assigned an “undivided one-half” of the water contract to J. L. Rogers, and they are hereinafter referred to as respondents.
On June 2, 1916, there was due on the contract with the company the sum of $195, and on that date the company assigned the water contract to O. D. Thomas & Company, whose rights are to be measured by the rights possessed by the water company. Thereafter, Thomas & Company notified respondents that the contract had been assigned to them, that certain due payments had not been made, that the indebtedness was more than thirty days past due, and that unless it was paid within sixty days, the water contract and all respondents’ interest in the money already paid thereunder would be declared forfeited. The indebtedness was not paid within the sixty days, and Thomas & Company thereafter filed a certificate of forfeiture. On August 17, 1919, respondents tendered to Thomas & Company the sum
This action was instituted for the purpose of securing a restitution of the water rights under the contract and for damages. The parties entered into a stipulation of facts, upon which the court made findings of fact and conclusions of law and entered judgment in favor of respondents and against appellants, awarding respondents restitution of the water contract, or, in lieu thereof, judgment in the sum of $635.63. It is from this judgment that this appeal is prosecuted.
Appellants contend that the right reserved to the company to declare a forfeiture of the contract upon the failure of the purchaser to make stipulated payments when due is such a right as may be the subject of agreement and is enforceable. On the contrary, respondents urge that the statute prescribes the course to be followed by Carey Act companies upon the failure of a purchaser of water rights to make the required payments, that the remedy provided by the statute is exclusive, and that it has been so held by this court in the ease of Adams v. Twin Falls-Oakley Land & Water Co., 29 Ida. 357, 161 Pac. 322.
In the Adams case, the court construed a contract between a Carey Act company and a settler, and held that a provision in the contract giving the company the right to discontinue the furnishing of water to a settler because of his failure to pay instalments due on the contract for the purchase of the water rights was void, and that the statute furnished an exclusive remedy for the foreclosure of the lien for the payment of such charges. (Reynolds v. North Side Canal Co., 36 Ida. 622, 213 Pac. 344; Sanderson v. Salmon River Canal Co., 34 Ida. 145, 199 Pac. 999; Parrott v. Twin Falls etc. Co., 32 Ida. 759, 188 Pac. 451.) The question before the court in the Adams case was not the
Appellants contend that because there is no obligation on the part of a purchaser of school land within the boundaries of a Carey Act project to reclaim such lands, it is of no interest to the state, nor is it against public policy, for a canal company to refuse to deliver water, or to forfeit a contract to deliver water, as the rights of the state are in no manner involved. C. S., sec. 5556, applies to all the waters and all the irrigable lands within this state, and, with respect to its terms, no distinction can be made between Carey Act lands and school lands. The following concluding lines of that section fully answer the contention of appellants:
“ .... The right to continue the use of any such water shall never be denied or prevented from any other cause than the failure on the part of the user thereof to pay the ordinary charges or assessments which may be made to cover the expenses for the delivery of such water.”
Judgment affirmed. Costs to respondents.
Petition for rehearing denied.