Creer v. Bancroft Land & Irrigation Co.

• Decision Date: 16 May 1907
• Citation: 90 P. 228,13 Idaho 407
• Parties: WM. O. CREER et al., Respondents, v. BANCROFT LAND AND IRRIGATION COMPANY, Appellant
• Court: Idaho Supreme Court

90 P. 228

13 Idaho 407

WM. O. CREER et al., Respondents, v. BANCROFT LAND AND IRRIGATION COMPANY, Appellant

Supreme Court of Idaho

May 16, 1907

COMPLAINT-MISJOINDER OF PARTIES PLAINTIFF-DEMURRER-MISJOINDER OF CAUSES OF ACTION-MULTIPLICITY OF SUITS.

1. Where an action is brought by fourteen plaintiffs to compel a water company to deliver them a sufficient amount of water to properly irrigate their lands, each owning and holding his land separately and each having a separate written contract with the water company, whereby said company agreed to furnish each all the water that was necessary to irrigate his land, and the complaint is demurred to on the ground of a misjoinder of parties plaintiff and causes of action, the court erred in not sustaining such demurrer.

2. The principal question involved in this case is the quantity of water which the appellant is required to deliver to each of the plaintiffs under its written contract with them, and does not involve the construction of the contract.

3. This is a different action from an ordinary water suit to determine the rights of several appropriators from the same stream, as in the latter case each appropriator would have to bring an action against each of the other appropriators in order to fully settle and determine his right; and for that reason may bring his action against all appropriators from the same stream; while in the case at bar, the rights of each of the respondents could be settled in one suit by an action brought by him against the appellant.

4. In this case, the main question is, How much water is necessary to properly irrigate the land of each of the defendants while in the ordinary water suit numerous questions must be determined, the date of appropriation, the amount of the appropriation, the amount of the water necessary to irrigate the lands, and other questions.

5. Held, that the demurrer to the complaint should have been sustained on the ground of misjoinder of parties plaintiff and causes of action.

(Syllabus by the court.)

APPEAL from the District Court of Fifth Judicial District for Bannock County. Hon. Alfred Budge, Judge.

Action to compel the defendant to deliver to the appellants certain amounts of water. Demurrer to complaint on the ground of misjoinder of parties plaintiff and causes of action. Demurrer overruled and judgment entered for the plaintiffs. Reversed.

Demurrer sustained and cause remanded, with directions. Costs appeal awarded to the appellant.

Standrod & Terrell and L. R. Rogers, for Appellant.

The court should have sustained the demurrer on the grounds of misjoinder of parties plaintiff and misjoinder of causes of action.

Each of the parties plaintiff bases his action upon a contract executed to him alone. No one plaintiff has any interest whatever in the contract of any other plaintiff or number of plaintiffs.

It is a well-settled rule that two or more persons having distinct causes of action, although against the same defendant, may not join as plaintiffs in one suit. (15 Ency. of Pl. & Pr 733; Martin v. Davis, 82 Ind. 38; Tate v. Ohio R. Co., 10 Ind. 174, 71 Am. Dec. 309; Goodnight v Gore, 30 Ind. 418; McIntoch v. Zaring (Ind.), 38 N.E. 321; Bort v. Yaw, 46 Iowa 323; Palmer v. Waddell, 22 Kan. 352; Pelly v. Bowyer, 7 Bush (Ky.), 513.)

D. Worth Clark, for Respondents.

This action is, in substance and form, similar to what are commonly known as water suits, and is in the nature of an action to quiet title. One using water from a canal is substantially an appropriator of water from the natural channel; and in many respects his rights are identical with those of parties to ordinary water suits. (Hard v. Canal Co., 9 Idaho 589, 76 P. 337, 65 L. R. A. 407.)

The subject matter of this action is the water flowing in the Cache Valley Canal. In this subject matter the plaintiffs are jointly interested. Their interests are not capable of division or separation. But by virtue of the fact that they are severally the owners of the water deeds in said canal, each has an interest therein amounting to a freehold estate. (Wyatt v. Irrigation Co., 18 Colo. 298, 36 Am. St. Rep. 280, 33 P. 144; Clifford v. Larrien, 2 Ariz. 202, 11 P. 397; Grand Val. Irr. Co. v. Lesher, 28 Colo. 273, 65 P. 44; Idaho Rev. Stats., secs. 1042, 4101, 4105, 4107; Frost v. Alturas Water Co., 11 Idaho 294, 81 P. 996; Churchill v. Lauer, 84 Cal. 233, 24 P. 107; Ronnow v. Delmue, 23 Nev. 29, 41 P. 1074; Foreman v. Boyle, 88 Cal. 290, 26 P. 94; Blaisdell v. Stephens, 14 Nev. 17, 33 Am. Rep. 523; Miller v. Highland Ditch Co., 87 Cal. 430, 22 Am. St. Rep. 254, 25 P. 550; Bliss on Code Pleading, sec. 76; Kinney on Irrigation, sec. 327; Kennedy v. Scovil, 12 Conn. 317; May v. Parker, 12 Pick. (Mass.) 34, 22 Am. Dec. 393.)

It is the policy of the code to avoid a multiplicity of suits about the same subject matter. (Brady v. Linehan, 5 Idaho 732, 51 P. 761; Pomeroy's Equity Jurisprudence, sec. 269; Albert Lea v. Neilsen, 83 Minn. 246, 86 N.W. 83; Smith v. Bank of New England, 69 N.H. 254, 45 A. 1082; Fegelson v. Niagara Fire Ins. Co., 93 Minn. 486, 103 N.W. 495; Stockwell v. Fitzgerald, 70 Vt. 468, 41 A. 504; Dumars v. City of Denver, 16 Colo. App. 375, 65 P. 580; Virginia-Carolina Chemical Co. v. Home Ins. Co., 113 F. 1, 51 C. C. A. 21.)

It was important that all of the plaintiffs be made parties to the suit, and if not parties plaintiff, parties defendant, for the adjudication of any one of the claims in a sense and to a degree affects the rights of all others.

SULLIVAN, J. Ailshie, C. J., concurs.

OPINION

SULLIVAN, J.

This action was brought by fourteen plaintiffs against the defendants, asking the court to compel the defendants to furnish each of the said plaintiffs certain amounts of water for the plaintiffs' respective lands, under the terms of certain water deeds or contracts executed to them, respectively, by the Cache Valley Canal Company and the Cache Valley Land and Canal Company, who are the predecessors in interest of the said defendants in the Cache Valley Canal, that being the canal through which the waters in question have been conveyed. Defendant Burdick defaulted, and the defendant, the Consolidated Canal Company and the Bancroft Land and Irrigation Company, which latter company is the appellant here, filed their demurrer to the complaint on the ground, among others, that there was a misjoinder of parties plaintiff and that several causes of action had been improperly united, specifying the particulars of said ground.

Said demurrer was overruled by the court. The Consolidated Canal Company thereafter filed its answer, disclaiming any interest in the subject matter of the suit. The appellant, the Bancroft Land and Irrigation Company, filed its answer, admitting its interest in and control of the canal system in question, specially denying that certain of the respondents had any water rights whatever for their lands, and denying that appellant had ever failed to furnish water to the other respondents in the amount to which they were entitled, and denying that one cubic foot of water per second of time was or is necessary to irrigate each fifty acres of the respondents' lands; and alleging that fifty inches of water was sufficient to irrigate eighty acres thereof; and alleging that certain sums were due from said respondents who are plaintiffs in the action, to whom water had been furnished by appellant, for the rental price thereof.

Upon the issues thus made the cause was tried by the court without a jury. Findings of fact and conclusions of law were filed and judgment entered adjudging that the said respondents were the owners of the water rights in the canal system of appellant, pursuant to the provisions of the water deeds held by said respondents, and that one cubic foot of water per second of time, flowing continuously day and night, during the irrigation season, was and is necessary for the irrigation of each fifty acres of said land, and requiring appellant to furnish said amount to said respondents during the irrigation season of each year, commencing on the first day of April and ending on the first day of October, and at all other times to furnish water to said respondents for domestic purposes. The judgment also awarded to appellant certain amounts for rents due for water from certain of the respondents, about which there is no controversy in this appeal.

The first error assigned is the overruling of the demurrer to the complaint. It is contended by counsel for the appellant that the demurrer ought to have been sustained on the ground of misjoinder of parties plaintiff and misjoinder of causes of action. The action was brought by fourteen persons owning distinct and separate tracts of land, upon fourteen distinct and separate contracts, which the predecessors of the appellant had made with the plaintiffs. The contract entered into by the several parties is entitled a "Water Deed," which water deeds are all uniform in their provisions, printed blanks having been used, and the rights and obligations of the plaintiffs and defendants in each case under the terms and provisions of said water deeds are substantially the same, with the exception that the water agreed to be furnished under the terms and provisions of said deeds was to be used upon different tracts of land, and it is stipulated that the ditch company sells and conveys to each of the parties, naming them in their respective deeds, "the right to use water flowing through the canal of said company on the tract of acres hereinbefore mentioned, the quantity of water represented by said right being all that is necessary to irrigate said land, said right being subject to the terms and conditions hereinbefore expressed."

The main contention in this case is the...