Chandler v. Drainage Dist. No. 2 of Boundary County

• Decision Date: 18 December 1947
• Docket Number: 7374
• Parties: CHANDLER v. DRAINAGE DIST. NO. 2 OF BOUNDARY COUNTY et al
• Court: Idaho Supreme Court

187 P.2d 971

68 Idaho 42

CHANDLER v. DRAINAGE DIST. NO. 2 OF BOUNDARY COUNTY et al

No. 7374

Supreme Court of Idaho

December 18, 1947

Appeal from District Court, Eighth District, Boundary County; E. V Boughton, Judge.

Reversed and remanded with instructions.

W. F McNaughton and H. S. Sanderson, both of Coeur d'Alene and Bandelin & Bandelin, of Sandpoint, for appellant.

Under general law quasi public corporations voluntarily organized primarily for their own benefit are liable in the same manner as individuals or body of persons upon whom a like special franchise has been conferred. The functions they perform are principally proprietary rather than governmental. Burt v. Farmer's Co-operative Irr. Co., Ltd., 30 Idaho 752, 769, 168 P. 1078; City of Nampa v. Nampa & Meridian Irr. Dist., 19 Idaho 779, 115 P. 979; Noon v. Gem Irr. Dist., D.C., 205 F. 402; Strickfaden v. Greencreek Highway Dist., 42 Idaho 738, 248 P. 456, 49 A.L.R. 1057; Henderson v. Twin Falls County, 56 Idaho 124, 50 P.2d 597, 101 A.L.R. 1151; Boise Development Co., Ltd., v. Boise City, 30 Idaho 675, 167 P. 1032; Colburn v. Wilson, 23 Idaho 337, 130 P. 381.

A "taking" of private property within the meaning of the constitutional provision on eminent domain occurs when by overflowage, crops are destroyed and the use and enjoyment of land is interrupted. The taking need not be intentional or the result of negligence: Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 P. 81; Morrison v. Clackamas County, 141 Or. 564, 18 P.2d 814; House v. Los Angeles County Flood Control Dist., 25 Cal.2d 384, 153 P.2d 950, 956.

Everett E. Hunt, of Sandpoint, for respondents.

Hyatt, Justice. Budge, C. J., and Givens, Holden, and Miller, JJ., concur.

OPINION

Hyatt, Justice.

Appellant brought this action to recover damages for injuries to crops growing on his lands situate along Fry Creek, alleging in substance that respondents wrongfully, negligently, and contrary to plans adopted by the District for dikes and drains, which included accelerating the flow of said Creek without other interference therewith, built and maintained a dam in, and thereby obstructed the channel of, said Creek, causing the waters thereof during the run-off season to seep into and overflow said lands and destroy said crops.

Respondents demurred to the complaint upon both general and special grounds which are hereinafter referred to. The trial court found the demurrer well taken, sustained the same without specifying the grounds upon which he ruled, and granted appellant 30 days to amend. Appellant advised the court that he desired to stand upon his complaint without amendment, whereupon a judgment of dismissal, reciting that plaintiff's complaint failed to state a cause of action, was entered.

This appeal is from the judgment, with the ruling on the demurrer assigned as error. We therefore have to examine all the grounds of the demurrer to see if any are well taken, even though the trial court by the judgment of dismissal indicated the ground for sustaining the demurrer. We are concerned with the judgment and the order ruling on the demurrer, not the grounds upon which the ruling was made. Telfer v. School Dist. No. 31, 50 Idaho 274, at page 279, 295 P. 632. In Fortner v. Cornell, 66 Idaho 512, 163 P.2d 299, 303, this court said:

"We have therefore concluded the rule as announced in Gagnon v. St. Maries Light [& Power] Co., Ltd., supra, 26 Idaho [87], at page 91, 141 P. [88], at page 90, and reasserted in one form or another in the above cases, urged by respondent, namely, that 'if the demurrer was good on any ground stated, it would be the duty of this court to sustain the trial court, even though he sustained the erroneous ground,' has become so well entrenched in our jurisprudence that it should not be departed from."

See also American Home Benefit Ass'n, Inc., v. United American Benefit Ass'n, Inc., 63 Idaho 754, 125 P.2d 1010.

It has been said by the California Courts (Ross v. Goins, 51 Cal.App. 412, 197 P. 132; Sechrist v. Rialto Irr. Dist., 129 Cal. 640, 62 P. 261) regarding a demurrer sustained generally by the trial court:

"When the court sustained the demurrer it was deemed to be sustained on any and every tenable ground, whether general or special. Under our practice a demurrer sustained is sustained for all purposes and upon every issue and in its entirety, so far as involves the count toward which it is directed." [51 Cal.App. 412, 197 P. 134.]

Further, we will review all the grounds of demurrer where the same questions must arise in proceeding further under the complaint and it is advisable to dispose of them in this court in the interests of expediting the litigation. See Gagnon v. St. Maries Light & Power Co. 26 Idaho 87, 91, 141 P. 88.

Taking up the various grounds of demurrer in order, we are of the opinion that the complaint states a cause of action. There is no question that a person cannot by a dam, embankment or other artificial means, obstruct the natural flow of water in a stream, and throw it back on the lands of another, without being liable for the resulting damages, unless he has an easement or right upon or in such lands to do so. Scott v. Watkins, 63 Idaho 506, at page 522, 122 P.2d 220; Johnson v. Twin Falls Canal Co., 66 Idaho 660, 167 P.2d 834; Alesko v. Union Pacific Railroad Co., 62 Idaho 235, 109 P.2d 874; Fischer v. Davis, 19 Idaho 493, 116 P. 412; Fischer v. Davis, 24 Idaho 216, 133 P. 910; Stout v. McAdams, 3 Ill. 67, 33 Am.Dec. 441; Bradbury v. Vandalia Levee & Drainage Dist., 236 Ill. 36, 86 N.E. 163, 19 L.R.A., N.S., 991, 15 Ann.Cas. 904; 67 C.J. 722, 723; Callison v. Mt. Shasta Power Corp., 123 Cal.App. 247, 11 P.2d 60, at page 64; See Annotations, 59 L.R.A. 817, and 28 L.R.A.,N.S., 157.

Such being true, will an action for such tort lie as against a drainage district organized under our drainage district statutes?

A drainage district is conducted and operated for the benefit and welfare of the residents and property owners of the district (Sec. 41-2560, I.C.A.) and its functions are business and economic, rather than political or governmental. Breckenridge v. Johnston, 62 Idaho 121, at page 133, 108 P.2d 833. The drainage district act may well be termed the complement of the irrigation act. One provides for bringing water onto land so as to render it productive and habitable, and the other provides for getting water off land for the same purposes. Elliott v. McCrea, 23 Idaho 524, at page 527, 130 P. 785. Irrigation districts are permitted to exercise the functions of drainage districts. 42-307, I.C.A., amended 1945 Laws, Chap. 4, p. 5, and Sec. 42-307 a, b, c and d, added by Chap. 4, 1945 Laws. This court has held that an irrigation district may construct drainage works as a necessary complement to its irrigation system. Bissett v. Pioneer Irrigation Dist., 21 Idaho 98, 120 P. 461; Pioneer Irr. Dist. v. Stone, 23 Idaho 344, 130 P. 382; Nampa & Meridian Irr. Dist. v. Petrie, 28 Idaho 227, 153 P. 425. Drainage districts are authorized to appropriate waters created or made available for irrigation purposes by the construction of drainage works within the district, whenever the same can be applied to a beneficial use upon lands within the district, without impairing prior existing rights, and to equitably and ratably distribute the same to lands within the district, all in the manner permitted by law. Section 41-2502, I.C.A.

A drainage district is not strictly a municipality such as a county, city, town or village, but is an entirely different kind of municipality created within the state by law for a specific purpose. Ferbrache v. Drainage Dist. No. 5, 23 Idaho 85, at page 93, 128 P. 553, 44 L.R.A.,N.S., 538, Ann.Cas.1915C, 43. Drainage districts are quasi corporations, being public in their nature, and designed to accomplish purposes conducive to the general welfare. Burt v. Farmers' Co-operative Irr. Co. Ltd., 30 Idaho 752, at page 765, 168 P. 1078.

The primary object of the drainage district act is the creation of a drainage district and its government in the same way as similar organizations are organized, such as irrigation districts, good roads districts, and improvement districts. Ferbrache v. Drainage Dist. No. 5, 23 Idaho 85, at page 92, 128 P. 553, 44 L.R.A.,N.S., 538, Ann.Cas.1915C, 43.

In Lewiston Orchards Irr. Dist. v. Gilmore, 53 Idaho 377, 23 P.2d 720, 722, this court summarized its previous decisions defining irrigation districts, and said:

"It follows that the primary purpose of an irrigation district is limited to the conducting of its business for the private benefit of the landowners within the district by the acquisition of water rights and the irrigation of lands within its boundaries; and that the landowners within the district are the members of the corporation, control its affairs, and are primarily benefited by its operations. It is likewise true that irrigation districts have been endowed with certain incidental municipal powers necessary to its proper functioning, such as the election of its officers and directors, the levy of assessments for bond, interest, maintenance, and operation and other like authorized purposes, and the equalization and collection of such assessments, which incidental municipal powers have resulted in its classification as a quasi municipal or municipal corporation in connection with the construction of statutes and constitutional provisions involving the exercise of such municipal powers." (Italics ours.)

The same thing may well be said of a drainage district by eliminating the words "acquisition of water rights and the irrigation of lands," and substituting therefor "drainage and diking, and the incidental appropriation of water for irrigation."

A drainage district can...