80 P. 222 | Idaho | 1905
This is an appeal from the judgment of the district conrt of Canyon county. Plaintiff (appellant) filed his complaint alleging that defendant is a corporation incorporated nnder the laws of Idaho. “That defendant is the successor in interest of the ditch and water rights of the Idaho Irrigation and Colonization Company, incorporated nnder the laws of the former territory of Utah, and now owns and is in possession of the ditch and water rights of said! Idaho Irrigation and Colonization Company, subject to the-rights of plaintiff made to appear. That on and prior to the 8th of December, 1887, the Idaho Irrigation and Colonization Company was the owner of a large irrigating canal and the-right to the use of the waters of Boise river for irrigation purposes in the then county of Ada, now Canyon, to the amount, of many thousand inches, .... the exact amount of which plaintiff is unable to state; and said corporation was at the date last mentioned and during the irrigation season of each-year carrying said water through their said canal and distributing the same on lands lying along the northern side of Boise river, .... and was durirg the said years, to wit, 1887, prior thereto and long since engaged in the business of carrying waters for sale and rental, .... to which said Idaho Irrigation and Colonization Company had a good and lawful right. That on December 8, 1887, plaintiff then contemplating the entry of section 3, ... . lying under said ditch as a desert entry,, purchased from said Idaho Irrigation and Colonization Company, for the irrigation and reclamation of four hundred and: -eighty acres of said section 3, a perpetual right to the use of three hundred and twenty inches of the waters flowing and to* flow into said canal, -and thereafter in the year 1892, plaintiff began the use of part of the waters to which he was entitled, and each year thereafter continued to use a portion thereof on said section 3 for irrigating purposes, until the year 1894, when plaintiff had sufficient crops under cultivation to demand the use of the whole amount of water to which he was-entitled from said canal, when he began to and did use the whole amount of said waters to which he was entitled from said canal, and each and every year since down to the present
This complaint is followed by a prayer following the allegations of the complaint. The provision upon which plaintiff relies in the deed referred to, and marked exhibit “A” to this complaint, is as follows:
“To have and to hold all and singular the said water rights, together with the appurtenances and privileges thereto incident, unto the said party of the second part, his heirs and assigns forever, subject, however, to the rules and regulations of said company governing the use. of said water rights and to a
As to the allegation that plaintiff has planted to crops of various kinds three hundred and twenty acres of land, and used all the water he purchased for use, and has said land in a high state of cultivation, that said land will not produce remunerative crops without water for irrigation and the allegation that if the plaintiff were now deprived of water for the irrigation of his land, his fruit trees, crops, etc., would dry up and die and become a total loss, and defendant has not sufficient knowledge, information or belief to answer said allegations, and he therefore denies each and every of said allegations. Admits that plaintiff has a deed as alleged, from the Idaho Irrigation and Colonization Company, but denies that ever or at any time since the year 1894, or from any other time in the year 1902, or at any time since, plaintiff has fully performed on his part all or any of the terms and conditions thereof; as to the allegation that said plaintiff has, during all the time since the year 1894, or from any other time continued to use for the purpose of irrigating the growing crops on said lands, or for any other purpose, three hundred and twenty inches of water obtained from the said canal under and by virtue of his perpetual water right, peaceably, quietly, openly, continuously, uninterruptedly and adversely to the defendant and all others, except for the wrongful acts of defendants hereinafter complained of, this defendant has no information or belief to answer said allegations and therefore denies each and every of said allegations. Admits that it is operating the canal, but denies that during the spring or at other times, or at all, demanded of plaintiff that
Defendant further answering says: “That since May 6th, 1902, it has been the owner and etc. of the ditch or canal mentioned in plaintiff’s complaint. That the stockholders of defendant are the owners of land and users of water under said canal-Then follows an averment that between the sixth day of May, 1902, and the fifth day of January, 1903, defendant expended
“That the items incurred shown in exhibit ‘A’ hereof were actually necessary to properly maintain and operate said canal. •And the items appearing in said statement as attorney’s fees were necessary expenses incurred by defendant in maintaining and preserving the water rights belonging to said canal including the right claimed by plaintiff.”
After a trial in the lower court, without a jury, the court filed findings of fact and conclusions of law, finding “that the Idaho Irrigation and Colonization Company on the eighth day of December, 1887, and some time prior thereto, was the owner of a certain ditch and the water rights, and on said day for a valuable consideration, conveyed to plaintiff three hundred and twenty cubic inches of water as measured by the mining laws of the United States and the territory of Idaho. The deed- was made to plaintiff, subject to the rules and regulations of said
Second. That before making application to the court for an injunction plaintiff should have tendered or paid to defendant his proportionate share of the cost of maintaining and operating said ditch for 1902, or such portion thereof as he himself admitted was a proper charge.
Third. Plaintiff is not entitled to an injunction and his application therefor is denied and the restraining order heretofore entered herein should be dissolved.
Fourth. That defendant is entitled to receive from the plaintiff in this action the sum of $205.60, as plaintiffs proportionate share of the maintaining and operating, expenses of defendant’s ditch for the irrigating season of 1902, and costs of suit, and judgment was entered in compliance with the foregoing findings and conclusions.
It is insisted by counsel for appellant that the findings and conclusions are not warranted by the facts as disclosed by the record.
The important and controlling question in this appeal, as we view it, is whether the court erred in its first conclusion of law, to wit: “It is a reasonable rule and regulation of defendant company that before turning the water out to plaintiff he shall be required to pay to the company his proportionate share of the operating and maintaining expenses of the ditch for the previous irrigating season.” It is insisted by counsel for plaintiff that there is no evidence in the record showing that the defendant company ever made such a rule or regulation, and if such a rule or regulation had been regularly adopted by the board of directors of the corporation, it would be void for the reason that such a rule, when adopted by a company, must be general in its application and apply to all persons alike. A careful inspection of the record fails to disclose any evidence that such a rule was ever adopted by the company. It is stated in the
The legislature in 1899 attempted to settle the question between the company, corporation, or person owning or controlling any canal or irrigation works and the consumers of water ■under such system, to wit: “Any person, company or corporation owning or controlling any canal or irrigation works for the ■distribution of water under a sale or rental thereof shall furnish water to any person or persons owning or controlling nny land under such canal or irrigation works for the purpose of irrigating such land or for domestic purposes upon a ■proper demand being made and reasonable security being given •for the payment thereof.” (Sess. Laws 1899, p. 382.) By this ■statute it will be seen that companies, corporations or persons ■owning, controlling or operating canals are amply protected in the collection of their honest dues. Impecunious or dishonest ■persons cannot procure water for use upon their lands for a ■season and force the canal owner or operator to an action in ■court to collect for the use of such water. This is wise legislation; it protects parties who are willing to invest large sums •of money in an enterprise that brings slow returns, but very ibeneficial and really indispensable to the community thus supplied with water. It is not an unreasonable requirement of the ■consumer and only furnishes the producer with reasonable pro-tection for furnishing water.
In the case at bar it is made to appear that appellant had an •absolute right to three hundred and twenty inches of water in ■defendant company’s canal. This is conceded by the pleadings. 'The terms upon which it was to be delivered to him is also -.conceded. From a large number of letters passing from appel
The statute of 1899 does not repeal this section of the Eevised Statutes of 1887. By construing the two sections it will be seen that the canal company in this case had its remedy in a suit at law to enforce payment of the amount due for expenses in maintaining and operating the canal for the year 1902, under the provisions of section 3203 of the Eevised Statutes.
Our attention is not called to any provision of the statute of this state, neither are we able to find one, that authorizes a canal company to pursue the course taken by respondent in this case to enforce the payment of a disputed debt for water theretofore furnished appellant by respondent. It is shown by the record that appellant at all times refused to accept any terms or conditions from the respondent, except the obligations set forth in his deed. He refused to deed his property to the corporation defendant and accept stock in lieu thereof, and it is
Eespondent insists in his brief that before appellant was entitled to equitable relief he should have tendered to respondent the amount he believed he was indebted to the respondent. It is shown that appellant repeatedly notified the defendant through its secretary that he was able, ready and willing to pay any and all sums he owed the respondent for the use of water, but when the bill was submitted to him he disputed its accuracy and insisted that he was being charged with items of expense for which he was not responsible under his deed. It would seem that if plaintiff was the owner of over four hundred acres of land, three hundred and twenty of which was under cultivation, a valuable water right for such land, and m> showing that a judgment against him could not be enforced, that respondent could have complied with the contract of its predecessor and furnished appellant the water his deed called for and then settled the dispute as to the water furnished prior thereto in the manner prescribed by the statute.
■Many authorities are cited by counsel for appellant, as well as respondent, but in our view of the ease we need not look beyond the plain mandates of the statute for a determination of the issues presented by this appeal.