216 P. 250 | Idaho | 1923
— This action was brought to obtain a writ of mandate to compel respondent to deliver water to appellant’s land and to recover damages for loss of crops as a result of respondent’s failure and refusal so to do. The cause was tried to the- court and judgment was entered in favor of respondent from which judgment this appeal is prosecuted.
Throughout this opinion the use of the word “appellant” will be taken as referring to Eleanor B. Yaden.
The facts are substantially as follows: Respondent district was organized in 1909. Its irrigation works consist of
Upon oral argument it was conceded that appellant was entitled to receive water for the ten acres within respondent’s present boundaries. At and for a period subsequent to the time of the construction of the “A” Canal and the A-10A lateral there was more than sufficient water to properly irrigate all of the lands within the boundaries- of the district then in cultivation, and this condition continued until 1919. In the years 1918 to 1920 additional lands within the district were brought under cultivation. The capacity of the “A” Canal was found to be insufficient to convey the amount of water necessary to properly irrigate lands then under cultivation within the district and in 1920 the canal was enlarged and an additional pump installed for the purpose of providing additional water to such landowners within the district.
It is conceded that prior to such increased reclamation and cultivation water was furnished for use on part of appellant’s land.
The court found that the water which appellant used was conveyed through works which belonged to the owners of land within the district which, at that time, they did not require for use upon their lands, but for the past three years they had used and required the same for use and that appellant’s use was only temporary during the time the lands entitled to said water did not require the same. In our opinion there was sufficient competent evidence to support this finding.
Appellant’s right to delivery of water was denied by the court upon the theory that the cost of the instalation of the system had been assessed against the lands within the district; that appellant’s land not being within the district and not -being assessed or subject to assessment for the -purchase price and cost of instalation of the system she was not entitled to receive water therefrom and respondent district was not required to furnish water to any lands outside of the
It is insisted by appellant that the water having once been applied to her land and used for agricultural purposes, it was such a dedication and distribution of waters to a beneficial use that she could not thereafter be deprived of. In support of this contention reliance is placed upon art. 15, secs. 1 and 4 of the constitution, and C. S., secs. 5638 and 5556. Sec. 1, art. 15, supra, provides as follows:
“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.”
Sec. 4, art. 15, supra, provides as follows:
“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 for domestic purposes, or to irrigate the land so settled upon or improved, upon payment therefor, ■ and compliance with such equitable terms and conditions as to the quantity used and times of use, as may be prescribed by law.”
C. S., sec. 5638, is a substantial re-enactment of sec. 4, art. 15, supra.
C. S., sec. 5556, inter alia, provides that:
*307 “. the right to the use of any of the public waters which have heretofore been or may hereafter be allotted or beneficially applied, shall not be considered as being a property right in itself, but such right shall become the complement of, or one of the appurtenances of, the land or other thing to which, through necessity, said water is being applied; and 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.”
The provisions of the constitution and the sections of the statutes cited and relied upon by appellant have peculiar application to persons or corporations organized for the purpose of appropriating water for sale, rental, or distribution and have no application to an irrigation district, except as hereinafter noted.
It is true that whenever an irrigation district, organized under the provisions of the statute, acquires an irrigation system through which waters have theretofore been delivered and applied to a beneficial use on lands outside or within the boundaries of the district, it is burdened with the obligation to continue such delivery. Appellant calls attention to the ease of Gerber v. Natmpa, & Meridian Irr. Dist., 19 Ida. 765, 116 Pac. 104. That case does not bear out appellant’s theory. In that case the plaintiff was the owner of land within the exterior limits of the defendant district which purchased from the Boise City Irrigation & Land Company a canal locally known as the Ridenbaugh Canal. During 1904, 1905 and 1906, the predecessor in interest to the plaintiff took water for the land now owned by plaintiff, from two taps of the Ridenbaugh Canal. The plaintiff in that case had acquired a vested right to the use of certain water from the predecessor of the irrigation district. When the district purchased the canal system from the Boise City Irrigation & Land Company, such system was burdened with the duty to deliver such water to the Gerber lands and this court held, in effect, that, having purchased the system bur
An irrigation district acquiring a system which had theretofore furnished water to settlers outside of the district who had a vested right thereto is compelled to continue to deliver such water. But an irrigation district acquiring a system which only furnishes water to settlers within the district cannot be compelled thereafter to furnish water to settlers outside of the district.
Irrigation districts are creatures of the statutes. They are gwcsi-public or municipal corporations, and as such have only such power as is given to them by statute, or such a,s is necessarily implied. (Evans v. Swendsen, 34 Ida. 290, 200 Pac. 136; Kootenai County v. State Board of Equalization, 31 Ida. 155, 169 Pae. 935; Olmstead v. Carter, 34 Ida. 276, 200 Pac. 134; State v. Deschutes Land Co., 64 Or. 167, 129 Pac. 764.)
Under the provisions of C. S., see. 4350, the legal title to all property acquired by the district by operation of law vests immediately in the district and is held in trust for, dedicated to and set apart to the use and purposes provided by law. Under the provisions of C. S., sees. 4346 and 4355, the power of the directors or other officers of an irrigation district is limited and any act done in excess of the express or implied provisions of the statute by such directors or other officers is ultra vires. However, the foregoing provisions of the statutes do not prohibit the delivery of water to users outside of the district when the same is not needed by users within the district. Such delivery of water would not be a dedication under the provisions of the constitution or the statutes heretofore referred to. (Const., art. 15, secs. 1 and 4; C. S., secs. 5638 and 5556.) The land owners within the district are obligated to the extent of the cost of maintenance of the system and for the payment of the same.
Appellant concedes that she is not an appropriator of any of the waters diverted and distributed by means of the system owned by respondent district; that her lands are not and cannot be assessed for the purpose of paying off the indebtedness of the district or for the purpose of maintenance, but that she is a renter or distributee of water available for distribution from the system, and, as such, having once received the water and applied it to a beneficial use, this right cannot be denied her, although the system of respondent district is limited in its capacity to furnish water to land owners within its boundaries.
Appellant further seeks to reinforce her right to the use of waters from the distributing system of respondent upon the theory that she was applying waters to her lands prior to the cultivation and application of the waters of the sys
Officers of an irrigation district are public officers and a contract made with a public officer in excess of the provisions of the statute authorizing the contract is void, so far as it departs from or exceeds the terms of the law. (State v. Deschutes Land Co., 64 Or. 167, 129 Pac. 764.)
C. S., secs. 4411 to 4421, inclusive, provide the only method by which owners of lands lying outside of the boundaries of an irrigation district may become entitled to the use of waters or acquire an interest in the system of the district, and that is by annexation.
From what has been said it follows that the writ of mandate should not issue. The judgment of the trial court is affirmed, and it is so ordered. Costs are awarded to respondent.