Cox v. City of Pocatello
| Decision Date | 07 December 1955 |
| Docket Number | No. 8244,8244 |
| Citation | 291 P.2d 282,77 Idaho 225 |
| Parties | Lew COX, Willard Walters, Max Peterson, William McAughey, A. R. Dick, Howard B. Hildreth, Howard Lee, Harold Anderson, and R. Stanford Pugmire, and all those other persons similarly situated, Plaintiffs-Respondents, v. CITY OF POCATELLO, Ray Hunter, Harry Yearsley, Steve Rhoads, Fred Burton, Ezra Hawkes, Grant Stowell and Mel Deaton, Defendants-Appellants. |
| Court | Idaho Supreme Court |
Ben Peterson, City Atty., Pocatello, for appellant.
Anderson & Anderson, Pocatello, for respondent.
Respondents in a single action seek mandate to compel appellants, during irrigation seasons to permit the flow of respondents' allotted irrigation water through a ditch or canal extending southerly through the townsite of the City of Pocatello, and to deliver the water to respondents' ditch at the city's south boundary; and for recovery of damages to their gardens and crops, allegedly caused by the city's refusal so to deliver the water during the forepart of the 1952 irrigation season.
The action was tried upon a stipulation of facts, evidence adduced and affidavits filed by stipulation.
Respondents' predecessors in interest acquired rights to the use, for irrigation purposes, of three acre feet of water per acre of their lands irrigated. They acquired those rights, dating variously during the years 1913-1918, under contracts with the United States, acting through the superintendent of irrigation of the U. S. Indian service, as authorized by the Department of the Interior. Those contracts evidenced a plan of sale and distribution of waters for use for agricultural purposes under Fort Hall Irrigation Project, constructed and operated on Fort Hall Reservation.
The stipulation of facts sets forth a contract dated June 3, 1922, between the City of Pocatello, and named landowners of whom respondents are successors in interest; that Fort Hall Irrigation Project is obligated to deliver the three acre feet of water per acre, measured at the city's north boundary where a part of the Project's distribution system enters the city limits; that from that point, a city-owned ditch extends southerly through the city, 'which receives and conveys water distributed to it as a part of the Fort Hall Irrigation Project and is known as 'Lateral Y'.'; that it is necessary that the landowners use the city ditch thereby to convey such irrigation water to their lands.
The contract provides in effect that, in consideration of payment to the city by the named landowners of an annual charge called rental, of 50 cents an acre of their land irrigated by water carried through the ditch, and the landowners' promises to provide a ditch or get-away for excess city water, and to save the city harmless from liability for damage caused by such excess water to property situate south of the city, the city agrees, each irrigation season, to receive at its north boundary into the city ditch, the landowners' irrigation water as delivered by Fort Hall Irrigation Project, and to conduct such water through its townsite and deliver it to the landowners' ditch at the city's south boundary.
The contract does not provide a date of termination.
The parties stipulated that respondents have paid to the city the sums of money provided in the contract.
The stipulation sets out that the city was to convey to 141.32 acres of lands, owned by the original landowners named in said contract, water as allotted by Fort Hall Irrigation Project, distributed over the irrigation season of 150 days, at the rate of three acre feet of water per acre which amounts to 1.42 cubic feet per second; that by the spring of 1952 the original acreage of 141.32 acres had decreased, by relinquishment of rights by successors in interest to the original named landowners, to 43.63 acres which receive water under such irrigation project through the city ditch.
The city has conveyed the irrigation water (three acre feet per acre) through the city ditch and delivered it to the extension of said ditch at the city's south boundary, for use on lands of respondents, during each irrigation season, from the inception of the contract until the spring of 1952, by means of a 36-inch concrete pipe laid along the streets of the city. The parties stipulated that such pipe interfered with construction of 'curbs and sidewalks, and streets upon a portion of North 14th Avenue in the City of Pocatello.' During April 1952, the city, in order to improve certain of its streets, replaced 180 feet of the 36-inch pipe with 14-inch pipe. This resulted in a decreased flow of water through the city ditch and in a decreased amount of water delivered for use on respondents' lands as compared to deliveries made during previous years.
Prior to June 4, 1952, no actual measurement was ever made of the water so conveyed and delivered; but, as stipulated, during the irrigation season, water in excess of three acre feet per acre was delivered to respondents, and those similarly situated, or their predecessors. Such portion of the stipulation is interpreted as referring to irrigation seasons prior to the year 1952.
The parties than stipulated as to the 1952 season, that the city did not receive any water from Fort Hall Irrigation Project May 27, May 31, and June 1, 1952, nor did respondents; that the city delivered to respondents and those similarly situated, water measured in cubic feet per second of time on dates as follows:
6-4-52 to .70 to
6-19-52, 2.56
inclusive, varying
each date on the
being set forth, different dates
and to the ditch of respondents, water so measured on dates as follows
6-19-52 to
6-25-52, inclusive, 1.8 approximately
6-27-52 to
9-23-52, inclusive, 3.15.
About June 27, 1952, the city installed a pump near its south boundary and, by pumping water into the ditch, augmented the flow to the Secon d feet measurement then and thereafter shown. No damage thereafter occurred to respondents' gardens and crops.
June 3, 1952, respondents' counsel demanded of the city in writing in effect, that it continue to live up to its obligation to deliver the irrigation waters under the contract of June 3, 1922; that its failure so to do already had caused considerable damage and that if the water be not delivered in two days, the water users would hold the city strictly accountable for all resultant damages. The city commission at its meeting of June 5, 1952, caused that letter to be read and filed.
June 12, 1952, the five respondents, Cox, Walters, Peterson, McAughey and Lee, filed their verified petition for a writ of mandate to require the city to convey through its city ditch and deliver respondents' irrigation water, alleging that June 5, 1952, the city refused to deliver the water; each claimed crop damage suffered due to lack of water. Subsequently, December 3, 1952, two additional respondents, Hildreth and Dick, joined in the action and thereupon the seven respondents filed their verified amended petition for writ of mandate; each claimed crop damage in substantially the same form as the original petition.
December 20, 1952, appellants by their answer acknowledged that the City of Pocatello entered into the contract of June 3, 1922, but alleged invalidity of the contract; they denied the balance of respondents' amended petition, and set out that respondents had not filed any claim for damages against the city as required by I.C. sec. 50-162.
The seven respondents, Cox, Walters, Peterson, McAughey, Dick, Hildreth and Lee, each testified as to his ownership or occupancy of certain lands for which, prior to the 1952 irrigation season, he had received allotted irrigation water from Fort Hall Irrigation Project, delivered by the city; also as to his crop damage due to lack of water during the 1952 irrigation season.
The parties thereafter stipulated into the record the claims for damage in affidavit form, of respondents Harold Anderson and H. Stanley Pugmire, in which each sets forth his ownership of certain lands situate south of the City of Pocatello, for which he receives the irrigation water from Fort Hall Irrigation Project, his crops grown on the lands, and his claimed crop damage due to lack of water during the 1952 irrigation season; also stipulated like testimony and objections to those claims, as relate to the claims of other respondents.
The parties also stipulated into the record, the affidavit of Mr. Draper, project manager of Fort Hall Irrigation Project, relating to the time when such irrigation water is normally made available during the irrigation season, and when made available during the 1952 irrigation season for the Pocatello lateral or ditch.
The trial court ruled in favor of respondents; particularly, the court ruled that appellants are obligated by the agreement of June 3, 1922, to convey respondents' irrigation water through the city ditch at times when the water is delivered by Fort Hall Irrigation Project.
The trial court's decree requires appellants to deliver three acre feet of water per acre to respondents through the city ditch extending southerly through the City of Pocatello, whenever the water is received from Forth Hall Irrigation Project in the ditch at the city's north boundary; also, if the ditch be not of sufficient capacity to carry three acre feet of water per acre for respondents, that appellants supplement said flow of water by pumping into respondents' ditch at or near the south boundary of the city, a sufficient amount of water to place in respondents' ditch at the city's south boundary, the three acre feet of water per acre, during each year.
The trial court also ruled that by reason of the arbitrary action of appellants in obstructing the flow of water through the city ditch during the spring of 1952, which resulted in failure of or damage to respondents' crops, the city is liable in damages to each respondent in...
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