Boise City Irrigation & Land Co. v. Turner

• Decision Date: 06 July 1905
• Citation: 176 F. 373
• Parties: BOISE CITY IRRIGATION & LAND CO. v. TURNER et al.
• Court: U.S. District Court — District of Idaho

176 F. 373

BOISE CITY IRRIGATION & LAND CO. v. TURNER et al.

United States Circuit Court, D. Idaho.

July 6, 1905

Wood &amp Wilson, for complainant.

W. E Borah, for defendants.

BEATTY District Judge.

The complainant is the owner of the irrigating system described in the complaint. While the Central Canal & Land Company owned the system, it sold on September 2, 1889, two water rights, to cover 159.65 acres, which now belong to defendant Ash; that on June 15, 1889, it sold another water right covering 80 acres of land, and on June 10, 1891, another covering another 80 acres, both of which rights are now owned by defendant Briggs; that on said last date it sold two other water rights, for 160 acres, which are now owned by defendant Turner; that on May 10, 1892, the Boise City & Nampa Irrigation Land & Lumber Company, which had become the owner of said system, sold 1.6 water rights, covering about 160 acres of land, which rights are now owned by defendant Kampner. Such sales were evidenced by an instrument in writing termed 'an indenture and agreement,' a copy of which is attached to the brief of complainant's counsel, but is not made a part of the complaint. It is, however, accepted as a correct copy of the constitutional provisions The complainant now asks that, in view of the constitutional provisions and the statutes in pursuance thereof, the said sales or contracts be set aside.

The Constitution (article 15) provides, by section 1, that:

'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.'

By section 2:

'The right to collect rates or compensation for the use of water supplied to any county, city, or town, or water district, or the inhabitants thereof, is a franchise and cannot be exercised except by authority of and in the manner prescribed by law.'

And by section 6:

'The Legislature shall provide by law the manner in which reasonable maximum rates may be established to be charged for the use of water sold, rented or distributed for any useful or beneficial purpose.'

The Constitution was adopted August 6, 1889, ratified by the people November, 1889, and approved by Congress July 3, 1890 (Act July 3, 1890, c. 656, 26 Stat. 215). The first legislative act in pursuance of the Constitution for the regulation of water rates was March 7, 1895 (Acts 1895, p. 174).

The complainant claims that the disposal of water for irrigation purposes is governed alone by the Constitution and laws, and that all contracts whenever made concerning the same, between the parties, may be held void and subject to the regulations prescribed by law. Without further discussion, it may be conceded that, as to all contracts made since the Constitution and laws became operative, such claim is correct; but the defendants maintain that contracts made prior to the enactment of such laws and the Constitution are not controlled thereby and are valid. I can but briefly refer to some of the authorities cited by counsel.

In Lanning v. Osborne (C.C.) 76 F. 319, it is held that water must be distributed according to law, and not according to contract between the parties; but it appears that the provisions of the California Constitution relating to this subject were adopted in 1879, and the act of the Legislature in pursuance of the constitutional provisions was enacted March 12, 1885, while it was not until 1887 to 1888 that the contract between the parties was made.

In Boise City Irrigation & Land Co. v. Clark, 131 F. 416 65 C.C.A. 399, the only question before the court was the application of the irrigation company to have annulled an order of the commissioners fixing the maximum rate. There are statements in the decision which tend to support complainant's position, although this question is not directly involved; but it must be noted that the court acted upon the understanding that the 'water in question...