Erdoisa v. South Side Bruneau Canal Co., Ltd., 6977

• Decision Date: 02 November 1942
• Docket Number: 6977
• Citation: 130 P.2d 669,64 Idaho 274
• Parties: JUSTO ERDOISA and MARIE ERDOISA, husband and wife, Respondents, v. SOUTH SIDE BRUNEAU CANAL COMPANY, LIMITED, a corporation, Appellant
• Court: Idaho Supreme Court

130 P.2d 669

64 Idaho 274

JUSTO ERDOISA and MARIE ERDOISA, husband and wife, Respondents,
v.
SOUTH SIDE BRUNEAU CANAL COMPANY, LIMITED, a corporation, Appellant

No. 6977

Supreme Court of Idaho

November 2, 1942

WATER AND WATER COURSES-CANAL COMPANIES-DELIVERY OF WATER-MANDAMUS.

1. Mandamus will not lie against canal company unless the conclusion, not the inception of the suit, shows claimant has a clear right to have water delivered to him by canal company, that claimant has crops which are in need of the water, and that the canal company has water which can be delivered to him.

2. Where claimant made a prima facie showing that under the articles of incorporation and his certificate of stock he was entitled to 70 inches of water and that the canal company had a priority of 1,200 inches in the stream, burden of proving an affirmative defense that claimant was entitled only to a third priority was upon the canal company.

3. In mandamus proceeding by holders of stock in canal company for delivery of water, affirmative defense that plaintiffs' land was entitled to only a third priority rather than a share in the composite three priorities was not sustained by the evidence.

4. Where canal company recognized right of stockholders to some water and all assessments had been fully paid and accepted by company, company was in no position to urge an "abandonment" by stockholders.

5. In mandamus proceeding by stockholders to compel canal company to deliver water, evidence sustained judgment for plaintiffs.

Appeal from the District Court of the Third Judicial District, in and for Owyhee County. Honorable Charles F. Koelsch, District Judge.

Action in mandamus. Judgment for plaintiffs. Affirmed.

Judgment affirmed. Costs awarded to respondents.

B. W. Oppenheim, Eugene H. Anderson and Charles F. Reddoch for appellant.

A reservation, or an exception in favor of a grantor, in conveying a water right, constitutes a reservation, or an exception in his behalf, in like manner as in the conveyance of other real property. (Ada Co. etc. Co. v. Farmers' Etc. Co., 5 Idaho 793; 51 P. 990; 40 L. R. A. 485; Riverside Irr. Dist. v. Black, 25 Idaho 98; 136 P. 611; Nampa & Meridian Irr. Dist. v. Briggs, 27 Idaho 84, 147 P. 75.)

One who settles upon and improves land lying under a canal or irrigation ditch and receives water therefrom for irrigation purposes, is entitled to a priority over one who has previously purchased a water right from such canal or ditch, but who has failed to either settle upon or improve the same. (Constitution of Idaho, Sec. 5, Art. 15; Mellen v. Great Western Beet Sugar Co., 21 Idaho 353, 122 P. 30 Ann Cases, 1913D, 621, and note page 625; Scott v. Nampa & Meridian Irr. Dist., 55 Idaho 672; 45 P.2d 1062; Gerber v. Nampa & Meridian Irr. District, 16 Idaho 1, 100 P. 88.)

A writ of mandate will not issue unless the party seeking it has a clear legal right to have the act done for which he seeks the aid of the writ, and it must be the clear legal duty of the defendant to act. (Reynard v. Caldwell, 53 Idaho 62; 21 P.2d 527; Logan v. Carter, 49 Idaho 393, 288 P. 424; Brooks v. Edgington, 40 Idaho 432, 233 P. 514.)

The character of, or title to, the water involved in this proceeding could not be determined or adjudicated on an application for a writ of mandate. (Nampa & Meridian Irrigation District v. Welsh, 52 Idaho 279, 15 P.2d 617; Leland v. Twin Falls Canal Co., 51 Idaho 204; 3 P.2d 1105; Stoner v. Carter, 48 Idaho 745, 285 P. 470.)

Thornton D. Wyman and Maurice H. Greene for respondents.

Mandamus lies to compel a corporation organized to secure a supply of water for irrigation purposes and to distribute the same among its stockholders for use on lands owned by them and to deliver water to a member, for he has no adequate remedy at law. (Miller v. Imperial Water Co., 103 P. 227; Consolidated People's Ditch Co. v. Foothill Ditch Co., 269 P. 915.)

Where the corporation and its officers deny the right of its stockholders to his proportionate share of the distribution of the water of the corporation, a writ of mandate will lie. (Miller v. Imperial Water Co., 103 P. 227; Consolidated People's Ditch Co. v. Foothill Ditch Co., 269 P. 915; State v. Twin Falls Canal Co., 21 Idaho 410; 57 Thompson on Corporations, Sec. 5775; 67 C. J. 1394-1069; Haugen v. Albina Light & Power Co., 28 P. 244.)

A certificate of stock expresses the contract between the corporation and the stockholder and cannot be taken away or changed without the consent of the stockholder or his prior dereliction. (Whicher v. Delaware Mines Corporation, 52 Idaho 304, 15 P.2d 610; Frost & Co. v. Coeur d' Alene Mines Corp., 60 Idaho 491, 92 P. (2) 1057; 18 C. J. S. 723-b, 724-e; Hobbs v. Twin Falls Company, 24 Idaho 380, 133 P. 899.)

GIVENS, C. J. Budge, Holden, and Ailshie, JJ., concur.

OPINION

[64 Idaho 276] GIVENS, C. J.

While other incidents appear in the record, the essential details of this litigation are as follows:

March 23, 1896, by posting, and April 2, 1896, by recording notice, Dow Dunning, Josiah W. Dunning, and Justin Kandle claimed and made an appropriation of 1200 inches of water of the Bruneau River for use on land on the west side thereof. Further notice of location of evidently the same amount was made by the same parties with the addition of George Dunning, April 30, filed May 4, 1896. Thereafter, Dow Dunning granted John Mitchell, November 15, 1899, 200 inches of said appropriation; George Hampton, December 20, 1901, 50 inches; James W. Randall, May 8, 1903, 16 inches. Thereafter, April 29, 1905, Dow Dunning and wife, George Dunning, Josiah W. Dunning, and Justin Kandle deeded to T. D. Cahalan all right, title, and interest in the Dow Dunning Ditch except 200 inches to John Mitchell, 100 inches to John Groom, 50 inches to Frank Deill, 50 inches to George Terry, 50 inches to George Hampton, 50 inches to D. B. Hyde, 50 inches to John Hutchison, 16 inches to " "...