City of Nampa v. Nampa & Meridian Irrigation District

• Decision Date: 22 February 1913
• Citation: 23 Idaho 422,131 P. 8
• Court: Idaho Supreme Court
• Parties: CITY OF NAMPA et al., Respondents, v. NAMPA & MERIDIAN IRRIGATION DISTRICT, Appellant

131 P. 8

23 Idaho 422

CITY OF NAMPA et al., Respondents, v. NAMPA & MERIDIAN IRRIGATION DISTRICT, Appellant

Supreme Court of Idaho

February 22, 1913

MANDAMUS-IRRIGATION DISTRICT-LAW OF THE CASE-FRANCHISE FOR DITCHES AND CANALS-CITY CONTROL OVER STREETS-APPORTIONING EXPENSES-REPAIR OR IMPROVEMENT.

1. A question considered and passed upon on a previous appeal in the same case which was necessary or essential to the determination of the case on appeal becomes the law of the case in all subsequent proceedings in the same action from the consequences of which the appellate court cannot depart.

2. An irrigation district organized under the general statutes of the state (1909 Sess. Laws, p. 150), which is authorized to include within its corporate limits lands and lots lying within a town or village, has the implied power conferred upon it by the legislature to enter the streets and alleys of such town or village or of that portion of the town or village included within the district, for the purpose of constructing ditches, canals and laterals in order to carry out the purpose of its creation and deliver water to the consumers therein.

3. The power conferred upon irrigation districts to enter the streets and alleys of towns and villages included within the boundaries of such district for the construction of its ditches, canals and laterals in order to deliver water to consumers does not repeal or in any way interfere with the power and authority of such towns and villages to exercise control of their streets and alleys and to regulate the manner and method of their use, and to direct the manner and method in which such irrigation district shall construct and maintain its ditches, canals and laterals within such municipality.

4. A water consumer within an irrigation district who is also within the corporate limits of a town or village may have his writ of mandate to compel the district to deliver water to him in accordance with and under the regulations prescribed by the town or village in which his lot or land is situated.

APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. Ed. L. Bryan, Judge.

Action for a writ of mandate. Judgment for plaintiffs. Defendant appealed. Affirmed.

Judgment of the district court affirmed. Costs awarded in favor of respondent. Petition for rehearing denied.

Hugh E McElroy, for Appellant.

On the former appeal in this case paragraphs 4 and 5 of the complaint were held on general demurrer to sufficiently state a grant, ordinance or contract franchise between the city of Nampa and this appellant, which would bind the parties thereto. The opinion cites a number of cases, all of which relate to corporations organized for the purpose of furnishing water to the inhabitants of a municipal corporation and doing so under a contract franchise.

But under the evidence offered, it now conclusively appears that the Boise City Irrigation and Land Company did not have a franchise of the character involved in said cases. The case of Boise City v. Boise Artesian Hot & Cold Water Co., 186 F. 705, 108 C. C. A. 523, construes the statutes of Idaho in force during the period involved in this case, and expressly holds that a city can only grant the use of its streets for the laying of a water-main to supply its inhabitants for a limited time, which must be specified, and where an attempt is made to grant such a franchise without specifying any term for the continuance of the grant, it is "a mere license revocable by the city at will."

Water for irrigation is delivered by canal owners operating under the general laws of the state of practically every city and village in the irrigated section of Idaho. The "franchise limits" of such canal owners is fixed by sec. 3288, Rev. Codes, which protects the canal owner and fixes his franchise limits wholly independent of the place of use.

In the case of Pocatello Water Co. v. Standley, 7 Idaho 155, 61 P. 518, the court held that the franchise limits were the lot lines of the property owners receiving water from the water company. But in that case such franchise limits were ascertained from the terms of the franchise itself. They were determined independent of the general irrigation laws. In this case plaintiffs failed to prove the grant or franchise alleged.

"Sec 2713 has no application to water corporations like appellant but has application to water and canal corporations organized for the purpose of supplying cities and towns with water." (MacCammelly v. Pioneer Irr. Dist., 17 Idaho 419, 105 P. 1076.)

"Ditches and flumes are the usual and ordinary means of diverting water in this state, and parties who have made their appropriations by such means cannot be compelled to substitute iron pipes, though they may be compelled to keep their ditches and flumes in good repair so as to prevent any unnecessary waste." (Winslow v. City of Vallejo, 148 Cal. 723, 113 Am. St. 349, 7 Ann. Cas. 851, 84 P. 191, 5 L. R. A., N. S., 851; Allen v. San Jose Land & Water Co., 92 Cal. 138, 28 P. 215, 15 L. R. A. 93; Barrows v. Fox, 98 Cal. 66, 32 P. 811.)

This judgment amounts to the taking of the property of the land owners of appellant without due process of law. It is based upon a contract franchise which the evidence shows does not exist. If it did exist, the parties would be governed by its terms and conditions. But no attempt was made to prove such terms or conditions.

G. W. Lamson, for Respondent.

Lot owners in a city who have become entitled to the use of water from an irrigation system cannot be compelled to pay for the company's system, nor can they be denied water for the reason that its delivery has been made more expensive or more burdensome to the company. (City of Nampa v. Nampa & Mer. Irr. Dist., 19 Idaho 779, 115 P. 979.)

In the opinion of this court as expressed in the foregoing case, the words "franchise," "easement" and "right of way" seem to have been used indiscriminately, but if it were true that a formal franchise impregnated with all the technical and red-tape terms had been granted, still it is the law that all such rights are held in subordination to the superior rights of the public; therefore the defendant would take its right subject to the right of the city to change its manner of use, just as has been done in this case.

AILSHIE, C. J. Sullivan and Stewart, JJ., concur.

OPINION

AILSHIE, C. J.

This action was instituted by the city of Nampa and J. H. Walling George Everett and G. W. Lamson, the former as a municipal corporation and the individuals as water users within the corporate limits of the city, praying for a writ of mandate against the defendant irrigation district to compel the district to deliver water to its water consumers within the corporate limits of the city of Nampa through...