Farmers' Co-Oprative Ditch Co. v. Riverside Irrigation District, Ltd.

• Decision Date: 05 March 1908
• Citation: 14 Idaho 450,94 P. 761
• Parties: FARMERS' CO-OPERATIVE DITCH COMPANY, a Corporation, Plaintiff and Respondent, v. RIVERSIDE IRRIGATION DISTRICT, LTD., et al., Defendants and Respondents; NAMPA & MERIDIAN IRRIGATION DISTRICT, Defendant and Appellant
• Court: Idaho Supreme Court

94 P. 761

14 Idaho 450

FARMERS' CO-OPERATIVE DITCH COMPANY, a Corporation, Plaintiff and Respondent, v. RIVERSIDE IRRIGATION DISTRICT, LTD., et al., Defendants and Respondents;

NAMPA & MERIDIAN IRRIGATION DISTRICT, Defendant and Appellant

Supreme Court of Idaho

March 5, 1908

IRRIGATION-ACTION TO ESTABLISH PRIORITIES OF APPROPRIATION-DESCRIPTION OF LANDS TO BE IRRIGATED-PARTIES DEFENDANT-SURVEY AND MAPS BY STATE ENGINEER-APPORTIONMENT OF COST OF SURVEY AND MAPS.

1. Where a defendant in a water suit, brought for the purpose of determining priorities of appropriators, answers the complaint and also files a cross-complaint in which he sets up his claim to a certain quantity of the waters of the stream and pleads the facts entitling him to a decree establishing his rights, and he raises no objection to the insufficiency of description of the lands to be irrigated as contained in the complaint, and in no way calls the matter to the attention of the trial court, and a decree is entered describing the lands to be irrigated both by the plaintiff and the defendants and all the parties to the action, in the language of the complaint and the cross-complaints, any insufficiency, error or defect in the description must be first raised in the trial court and called to the attention of the court entering the decree before it can be con- sidered on appeal, and in case of appeal any error assigned by the appellant in reference to such defective or insufficient description will be held to have been participated in and invited by the appellant, and he will not be allowed a reversal of the judgment on account thereof.

2. In a suit between the appropriators of the waters of a stream involving the rights and priorities of the several appropriators, the users and consumers of water under a canal that has appropriated water for the purpose of sale, rental or distribution are not necessary and indispensable parties to the action, and a decree in such case is valid and binding as between all the parties to the action.

3. A water company or corporation may appropriate and divert the waters of a stream for the purpose of sale, rental or distribution, for any beneficial use or purpose, and in such case the appropriation belongs to the ditch company with a perpetual right of use vested in the users and consumers to whom the water has once been delivered, and such perpetual right so vested in the user or consumer can only be defeated by failure to pay the annual water rents and comply with lawful requirements in relation to the use.

4. Where the court, under sec. 37, act of March 11, 1903, orders a survey by the state engineer of the ditches and canals diverting water from a stream, and of the irrigable lands thereunder, and of those to which water has been applied, and the making of maps thereof, the cost of such survey is properly chargeable to the several litigants in the case in proportion to the quantity of water allotted to each. In such case, it is proper for the court to make the apportionment and order judgment against each according to the amount properly apportioned to such litigant, and it is unnecessary for anyone to file a cost-bill covering such item of expense.

5 ID.-Sec. 4912, Rev. Stat., as amended, providing for the filing of a cost-bill, does not cover or include such item of expenditure, and it is not error for the court to enter judgment against the several defendants for such costs without requiring a cost-bill to be filed therefor.

(Syllabus by the court.)

APPEAL from the District Court of the Third Judicial District for the County of Ada. Hon. George H. Stewart, Judge.

Action by the plaintiff to have the rights and priorities of the appropriators of water from the Boise river determined and decreed. Cause tried and decree entered for the several claimants. Defendant, the Nampa & Meridian Irrigation District, appealed from the judgment. Affirmed.

Judgment affirmed. Costs awarded in favor of respondents.

Hugh E McElroy, and W. E. Borah, for Appellant.

The findings in this case wholly ignore the requirement of the law calling for the description of the land to which the water is made appurtenant by the decree, and further ignore the user of water as an interested party to this litigation.

The water user has not been accorded his day in court, although the action involves the existence of his property, and the duty of the canal owner in distributing water in pursuance of the decree in this case is purely perfunctory, such owner being merely the public carrier of the water for the use of the real owner, the water user. From beginning to end the act of 1903 is designed to recognize and establish title to the water right in the user of water. (Wyatt v. Larimer &amp Weld Irr. Co., 18 Colo. 295, 36 Am. St. Rep. 280, 33 P 144; Gould v. Maricopa Canal Co., 8 Ariz. 429, 76 P. 598.)

As there is no finding of the acreage irrigated, it is impossible to determine how the court arrived at the amounts of water allotted. There is no finding as to what canals irrigate the "bench" or "bottom" lands, and except in a very limited number of cases, the land upon which the water is used is not described. It is therefore impossible to determine from these findings what lands have been awarded water under this classification as bench lands or bottom lands respectively, the number of acres reclaimed, or what lands have been awarded water at all, or the method by which the respective allotments have been determined.

The parties to this action were entitled to have an issue tendered them in relation to costs by the service of a cost-bill claiming the same, in the usual manner, and upon such claim being tendered, they were entitled to their day in court to contest the same, at which time, as stated by the court, the right of the state engineer might be contested. It further appears that this judgment for costs has not been entered in favor of any person, either party to this action or otherwise. Parties are entitled to recover costs, at whose instance such costs have been incurred. We know of no law under which a valid enforceable judgment can be entered in favor of no one.

Where it appears that canals are operated by carriers of water and that the users of water from such canals have been omitted from the case and are not parties thereto, the decree will not be permitted to stand. The failure of this decree to describe the individual tracts of land and the water right decreed to each tends to defeat the system of regulation and control of the water rights of the state, established by the law of 1903. "Necessary or indispensable parties are those without whom the court will not proceed to any decree, even as to the parties before it." (15 Enc. P. & P. 611; Shields v. Barrow, 17 How. (U. S.) 130, 15 L.Ed. 158; Kendig v. Dean, 97 U.S. 423, 24 L.Ed. 1061.)

"Nonjoinder of necessary or indispensable parties is such a serious defect that though it ought to be regularly raised in limine by plea, answer or demurrer, yet a failure to so raise the objection is not a waiver of the right to object at a later stage of the cause." (15 Enc. P. & P. 687-689; Morgan v. Blatchley, 33 W.Va. 155, 10 S.E. 282.)

"According to the better reasoning and the weight of authority, the ownership of the appropriation is in the consumer, who by his application of the water to a beneficial use completes the appropriation." (Mills' Irr. Manual, sec. 117.) Sec. 38 et seq. of the Law of 1903 relates to a decree which specifies the water users and the specific tracts on which the water is used.

The question is up to this court to determine as between the Colorado system or the Wyoming system. The decree in this case admittedly follows the former. Comparison of the Idaho law of 1903 with the Wyoming law of 1895 will show that in all material respects they are the same.

Both laws deal with the user of water and make special provisions for adjudicating the water to specific land, thereby conclusively establishing the fact that such specific water is appurtenant to specified land, not by mere use, as has always been the law in Idaho, but by solemn adjudication of that fact by the court thereby making such decision res adjudicata, and not permitting the water to be separated from the land except by regular application to the state engineer. How can the state engineer of Idaho or the water commissioner of the district perform their duties if the decree does not describe the individual tract of land and the amount of water going thereto? (Farmers' Irr. Dist. v. Frank, 72 Neb. 136, 100 N.W. 286.)

J. C. Rice, Frank Martin, F. J. Smith, Silas Moody, Karl Paine, Walter Griffiths, Smith & Scatterday, S. H. Hays, Ira E. Barber, H. E. Wallace, W. A. Stone, and J. L. Niday, for Respondents.

The court, in describing the land in its decree upon which the water had been used, followed the description given in the appellants' cross-complaint. Can these appellants now be heard to say that, notwithstanding the fact they asked for this relief, and asked for it in the particular way and for the particular lands to which it was given, and notwithstanding the fact that the court gave them the very relief which they asked for in the case, that their complaints were not sufficient to sustain a decree, and it must, for that reason, be set aside? How are they injured or aggrieved parties if this is true. (Cooper v Cooper, 88 Cal. 49, 25 P. 1062; State v. Eves, 6 Idaho 148, 53 P. 543; Rankin v. Central P. R. R. Co., 73 Cal. 96, 15 P. 57; People v. Pfeiffer, 59 Cal. 89; Hibernia etc. Soc. v. Ordeway, 38 Cal. 679; U. S. v. Memphis, 97 U.S. 284, 24 L.Ed. 937; Riverside Land & Irrigation Co. v. Jensen, 73 Cal. 550, 15 P. 131; Samoset v. Mesnager, 108 Cal. 354, 41 P. 337; Gumaer v. Draper, 33 Colo. 122, 79...