Burt v. Farmers' Co-op. Irr. Co., Ltd.

Decision Date29 September 1917
Citation30 Idaho 752,168 P. 1078
CourtIdaho Supreme Court
PartiesC. G. BURT, W. W. NUSBAUM and F. G. PICKETT, Commissioners of Drainage District No. 1 of Canyon County, Appellants, v. FARMERS' CO-OPERATIVE IRRIGATION COMPANY, LIMITED, and NOBLE DITCH COMPANY, LIMITED, Respondents

APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. Chas. P. McCarthy, Presiding Judge.

Proceedings upon the reports of commissioners of a drainage district. Judgment in favor of remonstrants. Reversed.

Reversed and remanded, with directions. No costs awarded.

Harry S. Kessler, for Appellants.

"The word 'lands' includes the beds of non-navigable lakes and streams, and lands are none the less land for being covered with water." (1 Wash. Real Prop. 3; Higgins Oil & Fuel Co. v. Snow (U. S.), 113 F. 433, 438, 51 C C. A. 267; Montgomery County v. Cochran, 121 F. 17 21, 57 C. C. A. 261; Orchard v. Wright-Bell-Dalton-Anchor Store Co., 225 Mo. 414, 20 Ann. Cas. 1072, 125 S.W. 486.)

The assessments should be against the corporations personally rather than against the land. The trial court held that these benefits are general benefits and not public, or special, and therefore should have been made against the lands solely and not against the corporations. This conclusion is clearly erroneous. There is a well-defined distinction in the law of taxation by assessment between general benefits and special benefits. (Page & Jones on Taxation by Assessment, 654.)

Personal assessments can be made. (Storrie v. Cortes, 90 Tex. 283, 38 S.W. 154, 35 L. R. A. 666; Barber Asphalt Paving Co. v. St. Joseph, 183 Mo. 451, 82 S.W. 64; Pittsburg, C. C. & St. L. R. Co. v. Fish, 158 Ind 525, 63 N.E. 454; Pittsburg, C. C. & St. L. Ry. Co. v. Taber, 168 Ind. 419, 11 Ann. Cas. 808, 77 N.E. 741; Pittsburg, C. C. & St. L. Ry. Co. v. Hays, 17 Ind.App. 261, 271, 44 N.E. 375, 45 N.E. 675, 46 N.E. 597; Lovenberg v. Galveston, 17 Tex. Civ. App. 162, 42 S.W. 1024; Franklin v. Hancock, 204 Pa. 110, 53 A. 644; Atchison, T. & S. F. R. Co. v. Peterson, 5 Kan. App. 103, 48 P. 877, affirmed in 58 Kan. 818, 51 P. 290; Elsner, Matter of, 86 A.D. 207, 83 N.Y.S. 670; Rochester v. Rochester R. Co., 109 A.D. 638, 96 N.Y.S. 152.)

The drainage law was enacted under the police power rather than the power of taxation. (Elliott v. McCrea, 23 Idaho 524, 130 P. 785.)

The amendment by sec. 9-A inserted an additional basis for levying assessments that is clearly within the police power. (Page & Jones, Taxation by Assessment, secs. 419, 420; Donnelly v. Decker, 58 Wis. 461, 46 Am. Rep. 637, 17 N.W. 389; Zigler v. Menges, 121 Ind. 99, 16 Am. St. 357, 22 N.E. 782; Charleston v. Werner, 38 S.C. 488, 37 Am. St. 776, 17 S.E. 33; Billings Sugar Co. v. Fish, 40 Mont. 256, 20 Ann. Cas. 264, 106 P. 565, 26 L. R. A., N. S., 973; Chicago, Milwaukee & St. Paul R. Co. v. City of Janesville, 137 Wis. 7, 118 N.W. 182, 28 L. R. A., N. S., 1124; Town of Macon v. Patty, 57 Miss. 378, 34 Am. Rep. 451; In re Mingo Drainage Dist., 267 Mo. 268, 183 S.W. 611.)

Richards & Haga, McKeen F. Morrow and J. L. Eberle, for Respondents.

The drainage law of 1913 did not include irrigation canals or canal rights of way because they did not require drainage or diking and could not be benefited. (Idaho Sess. Laws 1913, c. 16, p. 58, secs. 1-4, 9, 10.)

The word "benefits" in the law of special assessments for public improvements and in the drainage law of 1913 means enhancement in value by reason of the construction of such improvement. (Garrett v. City of St. Louis, 25 Mo. 505, 69 Am. Dec. 478; Metropolitan etc. Elevated Co. v. Stickney, 150 Ill. 362, 37 N.E. 1098, 26 L. R. A. 773; Page & Jones, Taxation by Assessment, sec. 654; Walker v. Jameson, 140 Ind. 591, 49 Am. St. 222, 37 N.E. 402, 39 N.E. 869, 28 L. R. A. 680; 2 Cooley on Taxation, 3d ed., p. 1153; Sears v. Board of Aldermen etc., 173 Mass. 71, 53 N.E. 138, 43 L. R. A. 834.)

Sec. 9a added to the drainage law by Laws 1915, chap. 42, is to be construed as merely an addition to the act of 1913, and should be harmonized with the other sections so far as possible, and does not change the definition of the word "lands" or the character of land that can be included in a drainage district. (Lewis' Sutherland Statutory Construction, secs. 368, 380; Idaho Const., art. 3, sec. 18.)

Assessments for local improvements such as those involved here must be levied against the property benefited and cannot be levied against the owners of such property personally. (Asberry v. Roanoke, 91 Va. 562, 22 S.E. 360, 42 L. R. A. 636; Raleigh v. Peace, 110 N.C. 32, 14 S.E. 521, 17 L. R. A. 330; Elliott v. McCrea, 23 Idaho 524, 130 P. 785; Macon v. Patty, 57 Miss. 378, 34 Am. Rep. 451; Craw v. Tolona, 96 Ill. 255, 36 Am. Rep. 143; Creighton v. Manson, 27 Cal. 613, 628; Ivanhoe v. Enterprise, 29 Ore. 245, 45 P. 771, 35 L. R. A. 58; Brookings v. Natwick, 22 S.D. 322, 133 Am. St. 927, 117 N.W. 376, 18 L. R. A., N. S., 1259.)

A legislative declaration that what is not a benefit in fact is a benefit in law is arbitrary, unconstitutional and void. ( Thibault v. McHaney, 119 Ark. 188, 177 S.W. 877; Coffman v. St. Francis Drainage District, 83 Ark. 54, 103 S.W. 179.)

The assessments against respondents were based not on considerations of benefit to them, or their property, but solely upon considerations of benefit to the agricultural lands in the district by reason of the construction of the drainage system, and as such these assessments amount to a denial of due process of law and equal protection of the laws and to a taking of property without compensation. (Myles Salt Co. v. Board of Commrs., 239 U.S. 478, 36 S.Ct. 204, 60 L.Ed. 392; Shaw v. Board of Commrs., 138 La. 917, 70 So. 910; Blue v. Wentz, 54 Ohio St. 247, 43 N.E. 493; Zinser v. Buena Vista County Supervisors, 137 Iowa 660, 114 N.W. 51; Mason v. Fulton County Commrs., 80 Ohio St. 151, 131 Am. St. 689, 88 N.E. 401, 24 L. R. A., N. S., 903.)

B. F. Neal, Amicus Curiae.

RICE, J. Morgan, J., concurs. BUDGE, C. J., Concurring in Part and Dissenting in Part.

OPINION

RICE, J.

Drainage District No. 1, Canyon county, was organized by order of the district judge in March, 1915. The commissioners for said district were duly appointed, and in due time their report was filed with the court, in which report it was found that the respondent, Farmers' Co-operative Irrigation Company, was benefited by being relieved from responsibility for damage done to lower lands from seepage and saturation by irrigation water from its canals and the necessity of carrying off waste water to the extent of $ 100,000. An assessment was levied against the company in the amount of $ 20,000. The other respondent, the Noble Ditch Company, was found to be benefited for the same reason to the extent of $ 50,000, and assessed in the amount of $ 10,000. The tracts of land of respondents are described in the report. The respondent, Farmers' Co-operative Irrigation Company, has a right of way for its canal within the district, 7.61 miles in length and 100 ft. in width. The respondent, Noble Ditch Company, has within the district a right of way for its ditch, 7.41 miles in length, a portion of which is 100 ft. in width and the remainder 75 ft. in width.

The right of the drainage district to levy assessments against the respondents upon the tracts of lands mentioned above was before this court on a former appeal in the case of In re Drainage District No. 1, 29 Idaho 377, 161 P. 315. It was there directed that a full hearing be had upon the facts, in order that the law applicable to the case be determined. A hearing was had before Hon. Chas. P. McCarthy, one of the judges of the district court of the third judicial district, sitting for Hon. E. L. Bryan, judge of the seventh judicial district in and for Canyon county. The court filed its findings of fact and conclusions of law and entered judgment in favor of remonstrants and respondents and dismissed the proceedings as against them. The commissioners appealed to this court, and the appeal is on the judgment-roll alone. Among the findings of fact and conclusions of law to be considered in connection with this appeal are the following:

"FINDINGS OF FACT.

"IV. That the remonstrants herein, Noble Ditch Company, Limited and Farmers' Co-operative Irrigation Company, Limited, are corporations duly organized and existing under and by virtue of the laws of the state of Idaho, not for profit, but for the purpose of more conveniently and economically maintaining and operating canal systems and distributing water therefrom to the land owners who actually own said canal systems, including the portions thereof lying within the boundaries of said drainage district, and who organized the remonstrants and constructed said canal systems, and have at all times used said systems and the water rights in connection therewith for their sole and mutual benefit and not for sale or rental.

"V. That the agricultural land within the boundaries of said drainage district, being all the land lying within said district, excepting the canals, ditches and rights of way within its boundaries, will, when all irrigated, contribute 16,000 acre-feet of seepage water per year to the wet and water-logged condition of the lands lying within the boundaries of said district.

"VI. That the canal of the remonstrant, Farmers' Co-operative Irrigation Company, Limited, contributes 1,032 acre-feet of seepage water per year to the wet and water-logged condition of the lands lying within the boundaries of said district.

"VII. That the canal of the remonstrant, Noble Ditch Company Limited, contributes 1,000 acre-feet of seepage water per year, to the wet and water-logged condition of the land lying within the boundaries of said...

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