Bothwell v. Bryant

• Decision Date: 01 December 1922
• Citation: 36 Idaho 337,210 P. 1003
• Parties: GLENN R. BOTHWELL, Trustee, Respondent, v. C. E. BRYANT and JANE DOE BRYANT, Appellants
• Court: Idaho Supreme Court

210 P. 1003

36 Idaho 337

GLENN R. BOTHWELL, Trustee, Respondent, v. C. E. BRYANT and JANE DOE BRYANT, Appellants

Supreme Court of Idaho

December 1, 1922

JUDICIAL NOTICE-RULES OF THE LAND BOARD.

The courts do not take judicial notice of rules of the state land board.

APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. F. J. Cowen, Judge.

Action to foreclose lien of Carey Act contract. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs to respondent.

McDougall & McDougall, for Appellants.

The court absolutely ignored the Carey Act law and rules and regulations of the state land board, which became and were a part of the Carey Act contract at issue in this action. (Collins v. Twin Falls N. S. Co., 28 Idaho 1, 152 P 200; Idaho Irr. Co. v. Pew, 26 Idaho 272, 141 P 1099; Adams v. T. F. Oakley Co., 29 Idaho 357, 161 P. 322.)

Budge &amp Merrill and Martineau & Evans, for Respondent.

An appellate court will not take judicial notice of departmental rules and regulations; but if a party places reliance upon such rules, he should read them into the record. Unless this step is taken below the appellate court must either accept counsel's statement as to the rules or itself make an investigation. It will do neither of these things. (Powell v. Springton Lumber Co., 12 Idaho 723, 88 P. 97; State v. Cotterel, 12 Idaho 572, 10 Ann. Cas. 260, 86 P. 527; Josh v. Marshall, 53 N.Y.S. 419, 33 A.D. 77; Shurman v. Atlanta, 148 Ga. 1, 95 S.E. 698; Standard Cabinet Co. v. Landgrave (Ind.), 128 N.E. 358; Graf v. Employers' Liability Assur. Corp., 190 Iowa 445, 180 N.W. 297.)

MCCARTHY, J. Rice, C. J., and Dunn, J., concur. Budge and Lee, JJ., did not sit at the hearing nor participate in the decision.

OPINION

MCCARTHY, J.

This action was brought to foreclose the rights of appellant Bryant under a Carey Act contract, with the American Falls Canal and Power Company. On September 24, 1908, the company conveyed to appellant C. E. Bryant by warranty deed 120 shares of water stock, for which Bryant was to pay $ 1,800. The deed acknowledged the receipt of the first payment of $ 360, and provided for the payment of the balance in nine yearly installments. Bryant made only the first payment. A paragraph of the deed gave the company "any rights of way through the land described . . . . needed for the construction of the canal or any lateral."

Bryant built a lateral on his lands, and received and used water from the company's canal from the execution of the deed until the institution of this action, June 2, 1917. At this time Glenn R. Bothwell, the respondent, was the duly elected and acting trustee in bankruptcy, the company having been adjudicated a bankrupt in February, 1914. In the spring of 1917 it became necessary to enlarge and improve the lateral on appellant's land in order to carry water to farmers below him who had purchased water rights under the canal system and planted crops in anticipation of the water. Appellant refused to permit the enlargement of his lateral and suit was brought to enforce the provision of the deed allowing the company to do so, also to foreclose the lien...