Dukes v. Canyon Hill Ditch Co.
| Decision Date | 06 March 1924 |
| Parties | T. M. DUKES, Respondent, v. CANYON HILL DITCH CO., Appellant |
| Court | Idaho Supreme Court |
MANDAMUS-RIGHT IN DITCH-RIGHT TO DELIVERY OF WATER-CHANGE IN MODE OF DELIVERY.
1. If by virtue of stock in a corporation, one has an interest in a particular ditch, and the right to have his water carried through it, he has a right to compel the company to carry it through that ditch.
2. If by virtue of stock in a corporation, one has merely the right to compel the company to deliver him so much water at a given place, he has no right to compel the company to deliver the water through a particular ditch, but it suffices if the water is delivered to him in sufficient amount, and without injury, inconvenience or additional expense.
APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.
Mandamus to compel delivery of water through certain ditch. Judgment for plaintiff. Reversed.
Judgment reversed, with costs to appellant, and case remanded to the district court.
Walter Griffiths, for Appellant.
Under a partnership or association the members of the association hold the title to the canal or property in the nature of tenants in common. (3 Kinney on Irrigation, 2d ed., sec 1454.)
Where by natural causes the maintenance of the ditch on its old course has become an impossibility, there is power and authority in the officers or managers to change the course. (Candelaria v. Vallejos, 13 N.M. 146, 81 P. 589.)
The court here is dealing with property which is held by the members of the association as tenants in common and not in the same nature as a corporation under our laws. (3 Kinney on Irrigation, secs. 1465, 1468, 1477.)
The corporation would have a right to change the location of the canal, or course of the canal, so long as it did not injure its stockholders or the water users. (3 Kinney on Irrigation, sec. 1488; 1 Wiel on Water Rights in the Western States, 3d ed., sec. 501, and vol. 2, sec. 1266; 40 Cyc., pp. 826 and 831; Hallett v. Carpenter, 37 Colo. 30, 86 P. 317.)
Buckner & Warren, for Respondent.
A stockholder in a corporation organized for the purpose of carrying and distributing water to its stockholders has an actual estate or property right in the canal in addition to the right of service from the company, which cannot be taken from him to his damage. (Nampa & Meridian Irr. Co. v. Gess, 17 Idaho 552, 106 P. 993; Idaho, Fruit Land Co. v. Great Western Beet Sugar Co., 18 Idaho 1, 107 P. 989; 2 Wiel on Water Rights in Western States, secs. 1268, 1324-1328; Stanislaus Water Co. v. Bachman, 152 Cal. 716, 93 P. 858, 5 L. R. A., N. S., 359; Candelaria v. Vallejos, 13 N.M. 146, 81 P. 589; 40 Cyc. 831; Niday v. Barker, 16 Idaho 73, 101 P. 254.)
The fact that the delivery of water has become more expensive or more burdensome is not sufficient reason for refusing delivery of water from Canyon Hill Ditch. (City of Nampa v. Nampa & Meridian Irr. Dist., 19 Idaho 779, 115 P. 979.)
A canal constructed for the purpose of conveying water for irrigating purposes cannot be changed so as to prevent or interfere with the use of water from said canal by anyone who had used water for irrigating purposes from said canal. (C. S., sec. 5564; Candelaria v. Vallejos, supra; Niday v. Barker, supra; 40 Cyc. 831; C. S., sec. 5630.)
Respondent petitioned for a writ of mandamus in the district court alleging that appellant is a corporation engaged in carrying water by means of ditches and canals to its stockholders, that petitioner is the owner of a certain tract of land which requires water for irrigation, the owner of a water right, and also the owner of a certain certificate of stock of appellant which entitles him to have water for irrigation carried to his land in appellant's canal, the Canyon Hill Ditch, and that appellant wrongfully failed and refused to carry said water through said ditch. In its answer appellant denies respondent's right to have the water carried through said canal but admits that his stock entitles him to require appellant to deliver the water at the most convenient point on his land for irrigation. By way of affirmative matter appellant alleges that, in order to deliver said water to respondent's land from said canal, it is necessary to place checks in the ditch because the land is higher than the ditch, which interferes with the efficient delivery of water to other stockholders. It alleges that its officers under orders of the board of directors procured the right to carry respondent's water through another canal belonging to the Newman Ditch Co. to a point 1,200 feet east of petitioner's land and to construct a ditch from that point to the place on said land from which it has been irrigated. It alleges that the Newman Ditch Company's canal is higher than appellant's and using it will obviate the difficulty complained of. It further alleges that this change will not occasion respondent any injury, inconvenience or expense. Respondent made a motion for judgment on the pleadings, which was granted. Judgment was entered ordering the...
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