Columbia Trust Co. v. Eikelberger

• Decision Date: 18 December 1925
• Citation: Columbia Trust Co. v. Eikelberger, 42 Idaho 90, 245 P. 78 (Idaho 1925)
• Parties: COLUMBIA TRUST COMPANY, as Trustee, Respondent, v. WALTER EIKELBERGER and JANE DOE EIKELBERGER, His Wife, Appellants
• Court: Idaho Supreme Court

245 P. 78

42 Idaho 90

COLUMBIA TRUST COMPANY, as Trustee, Respondent, v. WALTER EIKELBERGER and JANE DOE EIKELBERGER, His Wife, Appellants

Supreme Court of Idaho

December 18, 1925

CAREY ACT CONTRACTS - POWERS OF STATE BOARD OF LAND COMMISSIONERS-AMENDMENT OF CONTRACT-RIGHTS OF SETTLERS-STORAGE WATER - EVIDENCE - FINDINGS - CONDITIONS PREREQUISITE TO FORECLOSURE OF CAREY ACT LIEN.

1. Where two contracts are entered into between the same parties or their successors in interest, in regard to the same subject matter but at different times, the second contract being supplementary of the first, and the first contract is modified by certain provisions of the supplementary contract the two agreements must be construed together, and the first contract will be enforced according to its terms in so far as it is not modified by the supplementary contract.

2. Held, that under the supplementary contract between the investment company and the settlers in this case the investment company contracted to deliver to the purchaser of a water right during the irrigation season such part of the storage water available as added to the water available from the natural flow would give the purchaser two acre-feet per acre, and that it was not a contract to deliver merely the purchaser's proportionate share of storage water and his proportionate share of natural flow.

3. Held, that that part of the finding of the lower court wherein it was found that one and one-fourth acre-feet of water per acre during the irrigation season is reasonably sufficient to reclaim the land involved in this action and to raise a profitable crop thereon is against the preponderance of the evidence.

4. Held, that the delivery of one and one-fourth acre-feet per acre during what it is conceded were average years is not a compliance with the contracts in controversy in this case.

5. While the state board of land commissioners has wide discretionary powers in the initiation of a Carey Act project as regards the amount of water to be supplied to settlers, as soon as the company has entered into contracts with settlers for the delivery of a certain quantity of water it no longer has the power to substantially change the contract in that respect to the detriment of a settler, without his consent.

6. Held, that the second state contract, wherein it was attempted to provide that the settler shall be entitled to receive a proportionate interest in the water available up to a maximum of two acre-feet per acre, was not as respects such provision within the terms of the settler's consent to an amendment of the first state contract, as such consent was expressed in the provisions of the supplementary contract between the investment company and the settler, and to that extent is ineffectual.

7. No right to the foreclosure of a Carey Act lien for the full amount of the contract price accrues until there is made permanently available to the settler an ample supply of water adequate for the proper and sufficient irrigation of his land or at least the amount specified in the contract.

8. Held, that the record in this case fails to show that plaintiff company has performed the conditions precedent to its right to bring this action, and that neither under the contracts in controversy nor under the statutes can such action be maintained.

APPEAL from the District Court of the Sixth Judicial District, for Butte County. Hon. Ralph W. Adair, Judge.

Action to foreclose lien of a Carey Act water contract. Judgment for plaintiff. Reversed and remanded.

Reversed and remanded, with instructions. Costs awarded to appellant.

G. F Hansbrough, for Appellant.

Water contracts do not make deferred payments a lien upon the water rights and land until the water has been made permanently available for the reclamation of the land. (Childs v Neitzel, 26 Idaho 116, 141 P. 77; Adams v. Twin Falls Oakley L. & W. Co., 29 Idaho 357, 371, 161 P. 322; Idaho Irr. Co. v. Pew, 26 Idaho 272, 274, 141 P. 1099.)

The existence of the lien of a Carey Act construction lien depends primarily upon the completion of the construction works and the delivery of water through the works by the construction company, as stipulated in its contracts with both the state and entryman. (Adams v. Twin Falls Oakley Land & Water Co., supra.)

The theory of proportionate share in the water in the system should in no case be adopted where it is shown that there is not sufficient water to irrigate all of the land in the project, or to furnish the amount of water sold. (State v. Twin Falls Salmon River etc. Water Co., 30 Idaho 41, 53, 166 P. 220, 224.)

Where two written contracts are entered into between the same parties, concerning the same subject matter, whether made simultaneously or on different days, they may, under some circumstances, be regarded as one contract and be construed and interpreted together. (6 R. C. L. sec. 240, p. 851; Chicago Trust Bank v. Chicago Title Trust Co., 190 Ill. 404, 83 Am. St. 138, 60 N.E. 586; Blagen v. Thompson, 23 Ore. 239, 31 P. 647, 18 L. R. A. 315.)

Any modification of a state contract between the state and a construction company which authorizes the construction company to require payment of a settler before the water sold is delivered, or any contract of the construction company which requires payment before such delivery, and which does not fully protect the settler, under the Carey Act as accepted by the laws of this state, is illegal and void. (C. S., secs. 2996, 5636; Gerber v. Nampa & Meridian Irr. Dist., 16 Idaho 1, 100 P. 80; Green v. Byers, 16 Idaho 178, 101 P. 79.)

Peterson & Coffin and William Story, Jr., for Respondent.

In the contract between the company and the state the right is reserved by the state to amend the contract with the consent of the company "for the purpose of carrying out the objects of the contract and for the purpose of meeting any conditions then unforeseen," and the company is also given the right to make such changes in the irrigation system in respect to the number, capacity and location of the canals, reservoirs, etc., as it may decide, subject only to the approval of the State Land Board. Under our statutes the board is vested with very wide discretionary powers. (Furbee v. Alexander, 31 Idaho 738, 176 P. 97.)

The covenant of the company to construct the reservoir and the covenant of appellant's predecessor in interest to pay the purchase price of the right were not concurrent, but, on the contrary were wholly independent of each other, in the sense in which those terms are used in the construction of contracts. (Page on Contracts, secs. 2971-2974; Fresno Canal & Irr. Co. v. Perrin, 170 Cal. 411, 149 P. 805; Central Appalachian Co. v. Buchanan, 73 F. 1006, 20 C. C. A. 33; Anderson v. Coolin, 28 Idaho 494, 155 P. 677; Goldsborough v. Orr, 21 U.S. 217, 5 L.Ed. 600; Benham v. Columbia Canal Co., 74 Wash. 110, 132 P. 884.)

BUDGE, J. William A. Lee, C. J., and Wm. E. Lee, Givens and Taylor, JJ., concur.

OPINION

BUDGE, J.

This is an action by respondent Columbia Trust Company to foreclose the lien of a water contract and supplementary agreement, for the balance alleged to be due from appellant upon the purchase price of the water right. The cause was tried to the court without a jury and judgment rendered in favor of respondent, from which judgment this appeal is taken.

The facts involved, about which there is no serious conflict, are in brief as follows:

In 1910 the state of Idaho secured the segregation under the Carey Act of certain public land of the United States in what is now Butte county. In June, 1910, Blaine County Irrigation Company, Ltd., entered into a contract with the state whereby the company agreed to construct an irrigation system for the reclamation of the land within the segregation. Under the terms of such contract the company was authorized to sell to the settlers making entry upon the lands water rights or shares in the irrigation system to be constructed, for the unpaid part of the purchase price of which water rights the irrigation company was accorded a prior lien upon the water rights sold, and also upon all the right, title and interest of the purchaser in the land to which the water should become appurtenant. The contract also provided for the organization of a corporation to be known as Blaine County Canal Company, Ltd., in which title to the water rights and the ownership, control and operation of the irrigation system should ultimately become vested. The water rights sold were to be represented by shares of stock in this company issued to the entryman on the basis of one share for each acre of land susceptible of irrigation. On September 1, 1910, appellant's predecessor, having made application to enter 160 acres of land in the segregation, entered into a "water contract" with the irrigation company for the purchase of 160 shares of stock of the canal company at the price of $ 40 per share, $ 640 being paid at the time, and the balance of $ 5,760 to be paid in installments maturing over a period of ten years with interest on deferred payments at six per cent per annum.

During the years 1910 and 1911 the irrigation company partially completed an irrigation system for the reclamation of the land within the segregation and partially constructed the storage reservoir provided for in the state contract. The completion of this reservoir was abandoned as it was found that it would not hold water. The irrigation company was therefore not in a position to establish a completion of its irrigation system as required by the terms of its contracts with the state and with the settlers, and it was also unable to furnish the entrymen with the quantity of water called for in their respective contracts. A controversy then...