Farmers' Land & Irrigation Co. v. Johnson

• Decision Date: 29 May 1924
• Court: Idaho Supreme Court
• Parties: FARMERS LAND & IRRIGATION COMPANY, a Corporation, Respondent, v. ENOCH JOHNSON and THORG JOHNSON, Appellants

228 P. 311

39 Idaho 255

FARMERS LAND & IRRIGATION COMPANY, a Corporation, Respondent, v. ENOCH JOHNSON and THORG JOHNSON, Appellants

Supreme Court of Idaho

May 29, 1924

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robt. M. Terrell, Judge.

Action by Farmers Land & Irrigation Company, a corporation, against Enoch Johnson and Thorg Johnson, for an injunction. From a judgment for plaintiff, defendants appeal. Reversed and remanded, with instructions.

Cause remanded, with instructions. No judgment for costs on appeal awarded to either party. Petition for rehearing denied.

Peterson & Coffin, for Appellants.

The right of the defendants to the use of the Cache Valley Canal system is protected and confirmed under C. S., sec. 5639. (Adams v. Twin Falls-Oakley Land & Water Co., 29 Idaho 357, 161 P. 322.)

The plaintiff by its long acquiescence in the action of the defendants in using the so-called Cache Valley Canal system has placed itself in a position where it cannot invoke the remedy of an equitable injunction, but is left to its remedy at law. (Pomeroy's Eq. Juris., 3d ed., sec. 817.)

Budge &amp Merrill for Respondent.

Where a grantor attempts to convey real estate to a foreign corporation which has not complied with the laws of the state relative to foreign corporations doing business in said state, said grantor is not estopped as against the corporation, its grantee or such grantee's mortgagees from claiming benefits of a statute making transactions of foreign corporations void where it does not comply therewith. (Wisconsin Trust Co. v. Munday, 168 Wis. 31, 168 N.W. 393, 169 N.W. 612.)

ADAIR District Judge. McCarthy, C. J., and William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

ADAIR, District Judge.

--The respondent brought this action against these appellants seeking a permanent injunction restraining them from conveying water through a certain canal system known as the Cache Valley Canal, the ownership of which was alleged to be in respondent. Appellants filed an answer asserting a right to convey through said canal 195 inches of water, and also a cross-complaint by which they sought to quiet title in themselves and against the respondent to their right to use said canal.

Briefly stated, the essential facts are as follows: This canal system was first owned and operated by the Cache Valley Canal Company. This corporation on June 18, 1892, mortgaged its entire system and works, and said mortgage was afterward assigned to one Anthony Burdick. Said mortgagee later foreclosed, and at foreclosure sale bought in this property receiving a deed therefor from the special master in chancery on January 5, 1900. On September 9, 1908, he deeded said property to Willis M. Marshall, who in turn on May 6, 1913, deeded the same to Fred W. Dickerson. On July 23, 1915, Dickerson entered into a written contract with respondent Farmers Land & Irrigation Company, a domestic corporation, whereby he agreed to sell it said canal system, and that respondent might take immediate possession. Pursuant to said contract, on June 3, 1919, Dickerson conveyed said property to the respondent company. On these conveyances and facts the respondent's title and case rest.

The defendants settled upon certain lands lying under said irrigation system about 1898, and for some years they rented water for irrigation purposes, without actually purchasing a water right therefor. On April 30, 1904, after he had acquired title through the foreclosure sale as aforesaid, and also several years before he purported to deed to Marshall, Anthony Burdick executed a deed conveying this property to the Bancroft Land & Irrigation Company, a Colorado corporation, which had not at that time complied with the laws of the state of Idaho relative to foreign corporations doing business in this state. This deed was delivered February 25, 1905, and was recorded March 5, 1905. Thereafter on March 23, 1905, said corporation qualified to do business in this state, but had not so qualified at the time of the delivery of said deed.

These appellants claim to have purchased title, during the years of 1904 and 1905, to 195 inches of water in said system, such title being transferred to them by means of certain mesne conveyances in all of which the source of title was the Bancroft Land & Irrigation Company. By the terms of these conveyances the maximum annual charge for upkeep and maintenance was limited to $ 1 per inch and no more. Each instrument upon which appellants rely depends for its validity upon the right of the Bancroft Land & Irrigation Company to execute it, and to acquire title to said property in the first place.

It appears from the evidence that the Bancroft Land & Irrigation Company operated said system until about 1909, during which time appellants used said water and paid $ 1 per inch per annum in accordance with their said contracts. About this time said company apparently became defunct and abandoned said canal system absolutely. The water users thereunder, including these appellants, in order to protect their crops, but without permission, right or title, took possession of the canal and operated it, each of said users, including the appellants, paying their pro rata share of the expense of maintenance, and one of the appellants acting as a director, or committeeman, for this group of farmers.

The time came, later, when work had to be done on the canal; the Spring Creek dam washed out; a new flume had to be installed the canal had to be enlarged...