Canyon View Irrigation Co. v. Twin Falls Canal Co.

• Decision Date: 09 September 1980
• Docket Number: No. 13174,13174
• Citation: 619 P.2d 122,101 Idaho 604
• Parties: CANYON VIEW IRRIGATION COMPANY, a corporation, Plaintiff-Appellant, v. TWIN FALLS CANAL COMPANY, a corporation, its Board of Directors, Jose Barinaga, Thomas Olmstead, Fay Frahm, William L. Watt and William Rude: and its Manager, Clifford Montgomery, Defendant-Respondents.
• Court: Idaho Supreme Court

Page 122

619 P.2d 122

101 Idaho 604

CANYON VIEW IRRIGATION COMPANY, a corporation, Plaintiff-Appellant, v. TWIN FALLS CANAL COMPANY, a corporation, its Board of Directors, Jose Barinaga, Thomas Olmstead, Fay Frahm, William L. Watt and William Rude: and its Manager, Clifford Montgomery, Defendant-Respondents.

No. 13174.

Supreme Court of Idaho.

Sept. 9, 1980.

Rehearing Denied Nov. 26, 1980.

John C. Hepworth, of Hepworth, Nungester & Felton, Buhl, for appellant.

Thomas G. Nelson, of Nelson, Rosholt, Robertson, Walker, Tolman & Tucker, Twin Falls, for respondents.

Paul M. Beeks, of Smith & Beeks, Twin Falls, amicus curiae.

Walker & Spink, Twin Falls, for amicus curiae Bell Rapids Mutual Irrigation Co.

BAKES, Justice.

In this case we address several significant questions presented by the attempt of one irrigation company to condemn a right to enlarge and use a portion of another irrigation company's existing canal system.

Plaintiff appellant Canyon View Irrigation Company (CV) and defendant respondent Twin Falls Canal Company (TFCC) are non-profit irrigation companies. TFCC currently operates canals on an easement granted to TFCC's predecessor by the State of Idaho pursuant to a 1903 contract. The easement runs through the property of a number of landowners who are not parties to this action but appear as amicus curiae. TFCC transports at times approximately 3,000 cfs of water through its canal. CV has purchased, or is in the process of purchasing, approximately 300 cfs of Snake River water and seeks to put that water to beneficial use on land located west of TFCC's canal system. CV has no canal and there exists no natural waterway by which CV's water can be transported by gravity to its stockholders' lands. Therefore, CV seeks to divert its water from the Snake River into TFCC's canal system and then reclaim a like amount, with due allowance for seepage and evaporation, at a headgate closer to its irrigation project site. TFCC's existing canal system is apparently unable to accommodate CV's extra water. CV therefore proposes to improve, expand and enlarge the canal system where necessary. CV is willing to bear the entire expense of any such improvements. It is also willing to pay for its pro-rata share of the enlarged canal system's maintenance costs.

CV approached TFCC with this proposal, but TFCC refused to negotiate for the common use of the canal system. CV then commenced this action in the district court for declaratory relief. In its complaint, CV asked the court below to declare its right to proceed against TFCC in eminent domain by condemning a common right to use TFCC's canal system. Alternatively, CV claimed that its landowners had the right to become shareholders of TFCC as third party beneficiaries of the 1903 contract between TFCC's predecessor and the Idaho State Board of Land Commissioners.

The case was tried upon stipulated facts. The parties also presented a stipulated statement of issues to the court below. Besides the two main issues regarding eminent domain and the interpretation of the 1903 contract, the parties asked the district court to settle some legal questions in the event that it found CV was entitled to condemn an interest in the canal system. First, the parties wished to know what effect the condemnation suit would have on the various owners of land adjacent to TFCC's canal system. Second, the parties requested that the court determine the proper measure of damages in the event CV's plan was implemented through condemnation proceedings.

The district court concluded that CV would not be entitled to the requested relief under either the law of eminent domain or the 1903 contract. While we agree that CV's shareholders do not enjoy any rights as third party beneficiaries under the contract, we conclude that CV can proceed by way of eminent domain, although the current state of the record precludes us from completely resolving all of the issues presented to the court below.

I.

In order to assist owners of water rights whose lands are remote from the water source, the state has partially delegated its powers of eminent domain to private individuals. I.C. §§ 42-1102 and-1106. See White v. Marty, 97 Idaho 85, 540 P.2d 270 (1975). These statutes permit landlocked individuals to condemn a right of way through the lands of others for purposes of irrigation.

To condemn such a right of way, the water right owners must proceed under Idaho's law of eminent domain, found in I.C. §§ 7-701 et seq. Article 1, § 14, of the Idaho Constitution permits the power of eminent domain to be exercised only in furtherance of a 'public use.' The irrigation and reclamation of arid lands is a well recognized public use, Idaho Const. art. 1, § 14, and art. 15, § 1; I.C. § 7-701(3), even if the irrigation project is ostensibly intended to benefit only private individuals. Clark v. Nash, 198 U.S. 361, 25 S.Ct. 676 (1905), affirming 75 P. 371 (Utah 1904). '[Article 1, § 14, of the Idaho Constitution] confers the right to condemn for individual use on the theory that the development of individual property tends to the complete development of the entire state.' Codd v. McGoldrick Lumber Co., 48 Idaho 1, 10, 279 P. 298, 300 (1929).

Easements or rights of way are one type of property subject to condemnation for a public use. I.C. § 7-702(2). ¹ See Hughes v. State, 80 Idaho 286, 328 P.2d 397 (1958). Rights of way may also be condemned for the purposes of concurrent use in common with the existing owners. I.C. § 7-703(5); ² Portneuf Irrigating Co., Ltd. v. Budge, 16 Idaho 116, 100 P. 1046 (1909). In such cases, the original easement owner is not really being deprived of his easement outright; only its exclusive use. The condemnation imposes a form of concurrent ownership. Both the condemnor and condemnee will enjoy the right to use the easement.

Generally, property already devoted to a public use, like TFCC's canal system, cannot be taken by eminent domain unless the condemnor proposes to put the property to a 'more necessary public use.' I.C. §§ 7-703(3) and -704(3). ³ However, the condemnor need not demonstrate a 'more necessary public use' when condemning only the right to the common use of an existing right of way previously appropriated for public use. Portneuf Irrigating Co., Ltd. v. Budge, supra; Marsh Mining Co. v. Inland Empire Mining & Milling Co., 30 Idaho 1, 165 P. 1128 (1916). Although the condemnation must still be 'necessary' and must be accomplished in a 'manner most compatible with the greatest public benefit and least private injury,' I.C. § 7-703(5), absolute necessity is not required. It is enough if the taking is reasonably necessary. Erickson v. Amoth, 99 Idaho 907, 591 P.2d 1074 (1978); March Mining Co. v. Inland Empire Mining & Milling Co., supra. The party seeking to condemn an easement must show a more necessary public use only if the existing owner's use 'will be defeated or seriously interfered with . . ..' Marsh Mining Co. v. Inland Empire Mining & Milling Co., 30 Idaho at 12, 165 P. at 1130. Essentially, where the former owner's use is defeated or seriously impaired, the condemnation amounts to an outright taking rather than an appropriation of concurrent ownership, thereby triggering the greater necessity requirement found in I.C. §§ 7-703(3) and -704(3).

This is not a case of first impression. This Court had occasion to apply the same legal principles in Portneuf Irrigating Co., Ltd. v. Budge, 16 Idaho 116, 100 P. 1046 (1909) [hereinafter 'Portneuf I'], ⁴ a case virtually identical to this one. The Portneuf-Marsh Valley Irrigation Co., Ltd., had commenced an action against the Portneuf Irrigating Co., Ltd., 'whereby it sought to condemn sufficient of the [latter company's] canal and right of way for the purpose of so enlarging a section of the canal as to not only carry the volume of water now owned and used by the [Portneuf Irrigating Company], but also such additional volume of water as will be necessary for the purpose of irrigating . . . land lying under the Portneuf-Marsh Valley Company's canals.' Id. at 120, 100 P. at 1047. The potential condemnor sought to enlarge the canal considerably more than plaintiff does here. It also sought to commingle its waters with the waters of the other irrigation company, to be reclaimed downstream ⁵ for delivery to the irrigation site. The Portneuf Irrigating Company attempted to block the condemnation, arguing that the proposed use was not more necessary than the existing use of the canal. Conceding the point, the Court nevertheless approved of the condemnation.

'The question, however, arising in this case is not that of actually condemning [Portneuf Irrigating Co.'s] ditch and irrigation and water right, but it is rather an effort to condemn such of its right of way as is not being actually used as a canal for carrying water, so that the [Portneuf Irrigating Co.] may use that right of way in the construction of a larger canal through which [it] may continue to carry its water, and through which the Portneuf-Marsh Valley Company may also carry the water necessary for the irrigation of its lands. In other words, it is proposed to so enlarge the present canal that it will do the service required for both companies. This principle has been repeatedly recognized in condemnation proceedings . . ..' Id. at 132, 100 P. at 1052 (emphasis added).

Portneuf I is no legal aberration, nor is the concept there articulated a stranger to western water law. See 1 W. Hutchins, Water Rights Laws in the Nineteen Western States 281-82 (1971); 4 Waters & Water Rights § 341 (R. Clark ed. 1970) [hereinafter cited as 'Water Rights']. Virtually all of the western states have enacted statutes providing that an individual may acquire the right to enlarge or to use an existing canal in common with the owners thereof, upon payment of proper compensation. Cal.Water Code § 1800 et seq. (West); Colo.Rev.Stat. § 37-86-107; N.M.Stat.Ann. §§ 72-1-5 and 75-5-15; ...