Brose v. Board of Directors of Nampa & Meridian Irr. Dist.

• Decision Date: 30 September 1911
• Citation: 118 P. 504,20 Idaho 281
• Court: Idaho Supreme Court
• Parties: J. W. BROSE and ROSINA C. BROSE, His Wife, Appellants, v. THE BOARD OF DIRECTORS OF THE NAMPA & MERIDIAN IRRIGATION DISTRICT et al., Respondents

118 P. 504

20 Idaho 281

J. W. BROSE and ROSINA C. BROSE, His Wife, Appellants, v. THE BOARD OF DIRECTORS OF THE NAMPA & MERIDIAN IRRIGATION DISTRICT et al., Respondents

Supreme Court of Idaho

September 30, 1911

PRIOR APPROPRIATIONS-LEGISLATIVE POWER TO PROVIDE FOR REGULATION AND DISTRIBUTION OF WATER-CLASSIFICATION OF LANDS-DUTY OF CANAL COMPANY.

(Syllabus by the court.)

1. Under the provisions of sec. 3, art. 15 of the constitution of this state priority of appropriation gives the better right as between those using water.

2. Sec 1, art. 15 of the constitution of this state authorizes and empowers the legislature to provide regulations governing the classification of lands according to priorities made by the irrigation company, and to distribute water to consumers under such classification.

3. Any classification made by an irrigation company under the provisions of sec. 3287 of the Rev. Codes can in no way affect or control the question of priorities between users and in no way prohibits or limits any user of water in having the question of priority between users settled and adjudicated in the proper court of the state.

4. The statute is merely administrative, and is a declaration of a policy in the administration of the distribution of water by irrigation companies which the legislature deems proper and just, and which is to be followed by a canal company in the absence of a judgment of a court of competent jurisdiction directing such matters.

5. Under the statute it is intended that the irrigation company shall make such classification upon such information as it may be able to obtain, and in fairness, and in accordance with the terms of the statute.

6. If a mistake is made by an irrigation company in making the classification as required by the statute, and a consumer is placed in the wrong classification, he can have such classification corrected in the courts, and he is not compelled to accept the classification made by the ditch company.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.

Application for mandamus. Application denied. Plaintiffs appeal. Reversed.

Judgment of the lower court reversed and demurrer overruled. Costs awarded to appellants.

C. C. Cavanah, Chas. P. McCarthy, and Perky & Crow, for Appellants.

Idaho has no administrative board performing duty in the way of regulating the distribution of water to consumers, but the legislature by the section in question has sought to make every canal or irrigation district a board in itself, performing the very simple duty of recognizing a prima facie right.

The administrative boards provided for in the different states perform duties which are held to be not unconstitutional and which do not exclude the settlement of the real property rights by the court. (Wiel Water Rights in the Western States, secs. 392, 394, 396, 397, 402.)

The controlling consideration is this: The irrigation company is not given the right to ultimately decide the question of the priority; that still remains for the court. The adjustment of land into classes is not a permanent adjustment unless the water users decide to allow it to remain so. Such adjustment does not deprive those who consider themselves aggrieved of the right to take the matter into the courts; but until the matter is taken into court, the state, under its police power, is not deprived of exercising the most just method of distribution which can be obtained without an adjudication between the parties under the canal. (Farmers' Ind. Ditch Co. v. Agricultural Ditch Co., 22 Colo. 513, 55 Am. St. 149, 45 P. 444.)

The case of the Farmers' Ind. Ditch Co. v. Agricultural Ditch Co., supra, has been followed repeatedly and the constitutionality of the Colorado statute has been announced as late as the year 1908. (McLean v. Farmers' High Line Canal & Reservoir Co., 44 Colo. 184, 98 P. 21.)

The great importance of preserving in a liberal degree to the state its police power in irrigation matters is also recognized by the supreme court of Wyoming. (Investment Co. v. Carpenter, 9 Wyo. 110, 87 Am. St. 918, 61 P. 258, 50 L. R. A. 747.)

Hugh E. McElroy, for Respondents.

"The courts will not interfere by mandamus wherever it is apparent the interests of third persons who are not before the courts are necessarily involved. " (Farmers' High Line Canal Co. v. People, 8 Colo. App. 246, 45 P. 543, and cases cited; Gen. Land Commr. v. Smith, 5 Tex. 471; Mackin v. Gas Co., 38 Ore. 120, 61 P. 134, 62 P. 20, 49 L. R. A. 596; Amer. Water Works v. State, 31 Neb. 445, 48 N.W. 64; State v. Town Bd. of Supervisors of Delafield, 69 Wis. 264, 34 N.W. 123; Board of Education v. Spencer, 52 Kan. 574, 35 P. 221.)

STEWART, C. J. Ailshie and Sullivan, JJ., concur.

OPINION

STEWART, C. J.

This is an application by the appellants for a writ of mandate against the defendants to compel the defendants to classify the lands, to which water is delivered by defendant irrigation district, in accordance with the provisions of Rev. Codes, sec. 3287. The trial court sustained a demurrer to the complaint and the appellants refused to amend, and judgment was accordingly entered in favor of the defendants dismissing said cause of action.

This action seems to have been brought for the purpose of enforcing the duty imposed by Rev. Codes, sec. 3287. This section reads as follows:

"When any ditch canal, or reservoir delivering or distributing water to several users, has one or more rights or priorities by reason of enlargements made from time to time, the right of the land being irrigated by such works shall be divided into classes; rights of the first class belonging to those lands reclaimed between the dates of the first and second priorities or rights of such works; rights of the second class belonging to those lands reclaimed between the dates of the second and third priorities of such works; rights of any other class being determined in like manner; but all the rights belonging to the same class shall be equal and subject alike to the regulations of their respective class."

The facts in substance as plead in the affidavit for the writ are about as follows: The Nampa & Meridian Irrigation District is organized as such under the laws of the state and is the owner of an irrigation system in Ada and Canyon counties distributing water therefrom to water users within and without such district. The appellants claim to be the owners of certain lands under the defendant's irrigation system, and that they have received water from the defendant's district, and its predecessors in interest, at a point on the upper end of the canal, and that such water is necessary for the proper cultivation and irrigation of their said lands; that the defendant district, and its predecessors in interest,...