Boley v. Twin Falls Canal Co.

• Decision Date: 02 June 1923
• Citation: 37 Idaho 318,217 P. 258
• Parties: MAYLON B. BOLEY, Respondent, v. TWIN FALLS CANAL COMPANY, a Corporation, et al., Appellants
• Court: Idaho Supreme Court

217 P. 258

37 Idaho 318

MAYLON B. BOLEY, Respondent, v. TWIN FALLS CANAL COMPANY, a Corporation, et al., Appellants

Supreme Court of Idaho

June 2, 1923

CAREY LANDS-WRIT OF MANDATE TO COMPEL DELIVERY OF WATER-WILL NOT LIE WHERE CAPACITY OF CANAL SYSTEM SOLD OR APPROPRIATION OF WATER EXHAUSTED.

1. Where a contract between the state and a Carey construction company stipulates that in no case will water rights be dedicated to lands under said system beyond the carrying capacity of the canal, or in excess of the appropriation of water, a writ of mandate will not lie to compel the operating company to sell water rights after the carrying capacity of the system, or the appropriation of water, has been sold to prior users.

2. In an application for writ of mandate by a Carey entryman to compel the operating company to deliver water to his lands where the answer alleges that all of the water in said canal to its full capacity has been appropriated and beneficially used by its stockholders, and their predecessors in interest for the irrigation of their lands, openly, notoriously adversely and continuously under a claim of title and right to the exclusive use of the same for more than five years next preceding the commencement of the action, and such allegation is admitted by the pleadings, a writ of mandate will not be awarded to compel such delivery.

3. A writ of mandate will not issue to compel delivery of water for additional lands under a Carey project where it would result in depriving lands that have already been purchased settled upon and reclaimed of a part of the water which is necessary for their reclamation, and which under the contracts of purchase the owners are justly entitled to receive, and which water had already been dedicated to their lands.

4. Where it appears that all the water available for a Carey project has been disposed of to bona fide settlers, under the terms of the sale contract prescribed by the state, further sales will not be allowed where it would result in diminishing the rights of prior settlers to less than the maximum amount which they purchased, that being necessary for the successful irrigation of their lands.

APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Application to district court for writ of mandate. Judgment for plaintiff, defendants appeal. Reversed and remanded, with instructions.

Reversed and remanded, with instructions. Costs to appellants.

A. A. Fraser and Jas. R. Bothwell, for Appellants.

There is no allegation in the complaint and application for a writ of mandate that the defendant, Twin Falls Canal Company, has sufficient water unappropriated to supply plaintiff with the desired amount or that the canal has sufficient capacity to carry it. This allegation would be necessary to constitute a cause of action for the issuance of the writ. (Gerber v. Nampa Irr. Dist., 16 Idaho 1, 100 P. 80; Lewis v. Mountain Home Irr. Co., 28 Idaho 682, 156 P. 419.)

The answer in this case having explicitly set up the fact that all the waters to the full capacity of the canal have been for more than five years appropriated and placed to a beneficial use by the present stockholders of the company. a writ of mandate will not issue where it might have the effect of depriving the prior users of water of a portion of the waters to which they are entitled and which are necessary to the proper irrigation of their lands. (Sanderson v. Salmon River Canal Co., 34 Idaho 303, 200 P. 341; State and Rayl v. Twin Falls etc. Water Co., 30 Idaho 41, 166 P. 220; Wyatt v. Larimer & Weld Irr. Co., 18 Colo. 298, 33 P. 144.)

There is nothing in the contracts which provides that a Carey Act entryman should have any right in subsequent or additional appropriations. These appropriations were made solely for the use and benefit of the existing stockholders of the canal. (Lombard v. Schlotfeldt, 68 Wash. 518, 123 P. 787.)

Sweeley & Sweeley, for Respondent.

Mandamus is a proper remedy. (State and West v. Twin Falls Canal Co., 21 Idaho 410, 121 P. 1039, L. R. A. 1916F, 236; State and Weaver v. Twin Falls Canal Co., 27 Idaho 728, 151 P. 1013.)

The decision in the West and Weaver cases is conclusive as to the rights of the parties in this action.

If recognized as a stockholder the respondent is entitled to the same rights as other stockholders, for it is the law of the state that the water rights of all land owners under a Carey Act system are equal. (Sanderson v. Salmon River Canal Co., 34 Idaho 303, 200 P. 341.)

WILLIAM A. LEE, J. Budge, C. J., and McCarthy, Dunn and Wm. E. Lee, JJ., concur.

OPINION

WILLIAM A. LEE, J.

--This is an appeal from a judgment of the district court of the eleventh judicial district, in and for Twin Falls county, wherein the respondent is awarded a writ of mandate granting to him the rights of a stockholder in the appellant Twin Falls Canal Company, and adjudging him to be entitled to receive from said corporation a certificate of stock showing that he is the owner of eighty shares therein, which entitles him to a water right appurtenant to the lands described in his complaint. Appellants are directed and ordered to recognize and observe the rights of respondent as such stockholder, to issue and deliver to him such certificate, and to deliver to him water for the irrigation of his lands in an amount equal to five-eighths of a miner's inch per second of time, at the same time and upon the same terms as water is delivered to other stockholders in said corporation.

This is a case somewhat similar to State and Rice v. Twin Falls Land & Water Co. and Twin Falls Canal Co., ante, p. 73, 217 P. 252, but differs from that case in some important particulars.

Respondent in the instant case on December 19, 1918, entered into a contract to purchase from the Twin Falls Land & Water Company eighty shares of water right in the canal system of the Twin Falls Canal Company, and thereafter applied to the state board of land commissioners to purchase eighty acres of land, particularly described as the W.1/2 of the S.E. 1/4 of sec. 8, T. 11 S., R. 20 E., B. M. In the Rice case one of the defenses relied upon was that the school lands in question purchased by respondent from the state were not susceptible of irrigation under this system, which question does not arise in this case. The state and Rice brought their action against appellant company in this case and also the Twin Falls Land & Water Company, which was represented in that action by the same counsel who represents the respondent in this case, so that if some of the matters urged by way of defense in the Rice case are tenable, the same reasoning and conclusions will apply to the instant case.

The "complaint and application for a writ of mandate" alleges that the Twin Falls Canal Company, which will be referred to as the "operating company," is a corporation, and that the individual defendants are its board of directors and secretary, respectively. That the Twin Falls Land & Water Company, which will be designated as the "construction company," was organized for the purpose of constructing an irrigation system and to sell water rights in the state of Idaho, under and pursuant to the act of Congress approved August 18, 1894, and acts amendatory thereto, commonly known as the Carey Act, and particularly for the purpose of constructing, operating and disposing of a certain Carey Act project in Idaho known as the Twin Falls South Side project. That on July 1, 1901, the government, pursuant to said Carey Act, segregated to the state of Idaho a large body of desert lands aggregating 244,025.98 acres, upon condition that the state was to cause to be irrigated and reclaimed said lands and that the government would patent the same to the state whenever it furnished or caused to be furnished an ample supply of water in a substantial ditch, canal, artesian well or reservoir, a copy of the contract between the state and the government being Exhibit "A," made a part of said complaint, and describes by legal subdivision the lands so segregated to the state, which includes the land purchased by respondent. That prior to said segregation the construction company made a proposal to the state to construct ditches and canals and other irrigation works necessary to reclaim these lands, and also applied to the state for a right to divert from the Snake River at a point known as "The Cedars," now the Milner Dam, 3,400 cubic feet of water per second of time, of which 3,000 cubic feet was to be diverted to and used upon the lands lying on the south side of said stream, and 400 feet to be used on the north side of said Snake River. That after the segregation of these lands to the state, on January 2, 1903, it entered into an agreement with said construction company to construct a canal system to reclaim these lands, which contract is pleaded haec verba and made a part of the complaint as Exhibit "B," and is the same contract construed and referred to as Exhibit "C" in the Rice case.

The answer admits the foregoing allegations of the complaint. It qualifiedly admits paragraphs 8 and 10 following to the extent that the construction company bound itself to construct works sufficient to divert 3,000 second-feet to reclaim the lands described in the segregation contract between the government and state, but denies that it bound itself to furnish water to any more of said lands than the 3,000 feet of water appropriated was ample to irrigate.

It is alleged by the complaint and admitted by the answer that the construction company in its contract with the state was permitted to sell water rights in compensation for its constructing said water system, and that such shares represented...