Bardsly v. Boise City Irrigation & Land Co.

• Decision Date: 13 December 1901
• Citation: 67 P. 428,8 Idaho 155
• Parties: BARDSLY v. BOISE IRRIGATION AND LAND COMPANY
• Court: Idaho Supreme Court

67 P. 428

8 Idaho 155

BARDSLY v. BOISE IRRIGATION AND LAND COMPANY

Supreme Court of Idaho

December 13, 1901

COMPLAINT-STATUTORY REQUIREMENTS.-Under act providing for the appropriation and distribution of waters, approved February 25, 1899 (Sess Laws 1899, p. 380), the complaint must state facts sufficient to show that the plaintiff has complied on his part with the requirements of said act before a canal company can be compelled to deliver water to him. Held, that the complaint does not state a cause of action.

REMEDY-MANDAMUS.-Where an applicant for water under the provisions of said act has performed all of the acts and things required thereby to be done, and performed by him, and the canal company has sufficient unsold water to supply applicant's demand, and refuses to do so, it may be compelled, by writ of mandate, to furnish such water.

(Syllabus by the court.)

APPEAL from District Court, Canyon County.

Affirmed, with costs.

Griffith & Griffith and Martin & McElroy, for Appellant.

The issue has nothing to do with the prayer for relief; it is made by the affirmance and denial of some fact or facts, or by the denial of some legal proposition which is implied in the statement of facts. If the facts put in issue by the complaint and answer and established by the evidence entitles the party to any relief in the power of the court to give although not demanded, it is the duty of the court to give it, and its power to do so is not conditioned upon the form of the prayer. (Bliss on Code Pleading, 3d ed., secs 159-171; Pomeroy's Code Remedies, sec. 580, p. 620; Morse v. Swan, 2 Mont. 306, 309; Rollins v. Forbes, 10 Cal. 299; Althof v. Conheim, 38 Cal. 230, 234, 99 Am. Dec. 363; White v. Lyons, 42 Cal. 279; Grain v. Aldrich, 38 Cal. 514, 99 Am. Dec. 423; Nevada Co. etc. Canal Co. v. Kidd, 37 Cal. 282; Poett v. Stearns, 28 Cal. 226; Crosby v. Farmers' Bank, 107 Mo. 436, 17 S.W. 1004; Emery v. Rease, 20 N.Y. 62; Damon v. Leque, 14 Wash. 253, 44 P. 261; Walker v. Fleming, 37 Kan. 171, 14 P. 470; Davis v. Alvord, 94 U.S. 546; Bayles v. Kansas P. R. R. Co., 13 Colo. 181, 22 P. 341, 5 L. R. A. 480; Cincinnati etc. R. R. Co. v. Washburn, 25 Ind. 259; Hale v. Omaha Nat. Bank, 49 N.Y. 626; Marriott v. Clise, 12 Colo. 561, 12 P. 909; Long on Irrigation, 5 secs. 108, 115, 116, 129, 131; Stocker v. Kirtley, 6 Idaho 795, 59 P. 891, at page 893; 6 Ency. of Pl. & Pr., p. 350, notes and cases; 16 Ency. of Pl. & Pr., pp. 783 and 792, notes and cases.) Under our constitution and laws, one who applies water to a beneficial use, whether carried in his own canal or that of another, is the owner of a water right--that is, real estate--and the right and title thereto will be established, protected and quieted in the same manner as other real estate. (Idaho Const., art. 15, secs. 4, 5; Long on Irrigation, secs. 108-117.) The canal company is a common carrier--"an intermediate agency existing for the purpose of aiding consumers in the exercise of their constitutional rights." (Wyatt v. Larimer & Weld Irr. Co., 18 Colo. 298, 36 Am. St. Rep. 280, 33 P. 144, 150; Clifford v. Larimer County Ditch Co. (Ariz.), 11 P. 397.) Mandamus proceeding is not a proper proceeding to try title to property, "whether the property be the right to real estate, to an office, or to a franchise." (Gregory v. Blanchard, 98 Cal. 311, 33 P. 199; Peregory v. Sellick, 79 Cal. 568, 21 P. 966.)

W. E. Borah, for Respondent.

The plaintiff alleges he has land under the canal, and that there is sufficient water in the canal over and above any amount in use by others to supply plaintiff's wants, and that the land is in need of water. This is proper, in so far as it goes, but it does not go far enough. The plaintiff is not entitled, under our statutes, to the use of water from the canal company until he tenders a reasonable, or at least some, compensation for the same or satisfactory security therefor. (Laws 1899, sec. 19, p. 382.) In addition to this, they would have to allege that the rate had been fixed and tender the amount of security. If the rate had been fixed, then the law provides for their remedy. (Wilterding v. Green, 4 Idaho 773, 45 P. 134; Farmers' Canal Co. v. White, 5 Colo. App. 1, 31 P. 345.) So far as the facts disclosed by the record are concerned, the plaintiff has a plain, speedy and adequate remedy at law, not only for the reasons heretofore stated, but he wholly fails to allege insolvency or any fact which would invoke the equity powers of the court. (Fulton etc. Ditch Co. v. Twombly, 6 Colo. App. 554, 42 P. 253.)

SULLIVAN, J. Quarles, C. J., and Stockslager, J., concur.

OPINION

SULLIVAN, J.

This action was brought by the appellant to obtain a decree confirming his right to receive nine-tenths of one cubic foot of water per second of time from that certain canal known as the "Ridenbaugh Canal," and owned by the respondent corporation, during the season of 1901, for the irrigation of certain land owned by appellant, and described in the complaint, and to enjoin the respondent from preventing appellant from receiving said amount of water, and to enjoin and restrain respondent from refusing to receive and number in its numerical order appellant's application for such water. The pleader sought to set forth two causes of action in the complaint, and the prayer is an unusual one. The first alleged cause of action alleges that the respondent is a corporation, and owns, controls, and operates said canal; that water is carried through the canal to consumers for the purpose of irrigating lands thereunder. The capacity of the canal is alleged, as well as the sufficiency of the supply of water; that appellant owns certain land under said canal, requiring irrigation; and that respondent refused, and still refuses, to accept the application of appellant for water for said land. The second alleged cause of action avers some additional facts, but for the purposes of this opinion it is not necessary to set them forth here. The action was begun March 21, 1901. A demurrer was filed to the complaint on the ground that the same did not state a cause of action, and that the complaint disclosed that the appellant had a plain, speedy, and adequate remedy at law. The demurrer was sustained, and the appellant elected to stand on his complaint, and judgment of dismissal was entered. This appeal is from the judgment.

Appellant assigns the order of the court sustaining the demurrer as error. Does the complaint state a cause of action? It alleges that plaintiff owns land under said canal that requires irrigation; that there is sufficient water in the canal, over and above the amount used by others, to supply plaintiff's needs; that on the twenty-fourth day of December, 1900, plaintiff duly made application to the respondent for the amount of water above stated for the purpose of irrigating his said land for the year 1901, and that he "offered to secure the payment of the same"; that respondent refused, and still refuses, to accept said application, and refused, and still refuses, to contract with appellant for said water. The allegations of the complaint are proper, so far as they go, but they stop short of stating a cause of action. Under our statute, not only a proper demand must be made, but reasonable compensation must be tendered therefor, or reasonable security given for the payment thereof. Section 19, page 382 of the Session Laws of 1899, which reads...