Hamilton v. Swendsen

Citation46 Idaho 175,267 P. 229
Decision Date28 April 1928
Docket Number4840
PartiesROSCOE HAMILTON et al., Respondents, v. W. G. SWENDSEN, Commissioner of Reclamation of the State of Idaho, et al., Respondents; STATE, Intervenor and Appellant
CourtUnited States State Supreme Court of Idaho

WATERS AND WATERCOURSES-ACTION TO ADJUDICATE WATER RIGHTS-SURVEY AND MAPS BY STATE - DEPARTMENT OF RECLAMATION-COSTS.

1. In suit to adjudicate water rights, department of reclamation on order of court to make survey of streams and lands involved and to prepare a map for use as evidence, was required to file the map with the court, or at least to place it in the court's possession, under C. S., secs. 5604 7032, notwithstanding subsequent settlement of the case on stipulated findings.

2. Statutes must be liberally construed with a view to accomplishing their aims and purposes, and courts may look beyond the letter of the statute to determine legislative intent and give effect thereto.

3. In suit for adjudication of water rights in which court ordered department of reclamation to make survey and prepare map under C. S., secs. 5604, 7032, department, having failed to file map or place it in court's possession, resulting in considerable delay to parties, was not entitled to have costs apportioned among the parties, though parties finally settled case on stipulated findings before referee.

APPEAL from the District Court of the Sixth Judicial District, for Custer County. Hon. Ralph W. Adair, Judge.

Judgment denying petition of intervenor to apportion and tax costs of state department of reclamation, incurred by court order, in suit to adjudicate water rights. Affirmed.

Judgment affirmed. Costs to respondents.

Frank L. Stephan, Attorney General, and Leon M. Fisk, Assistant Attorney General, for Appellant.

The sum allowed by the state board of examiners as the costs and expense of an agricultural survey constitutes a part of the costs and disbursements in this action. (C. S., sec. 7032.)

When such sum is certified to the judge and clerk of the court where the suit is pending, the judge must tax such sum as costs in the action. (C. S., sec. 7032; Farmers' Co-op. Ditch Co. v. Nampa-Meridian Irr. Dist., 14 Idaho 450, 94 P. 761.)

The court at the time of entering of final judgment must adjudge and determine the proportionate amount of the cost of the examination and survey to be paid by each of the parties to this suit. (C. S., sec. 7032; Farmers' Co-op. Ditch Co. v. Nampa-Meridian Irr. Dist., supra.)

It is unnecessary to have a cost bill filed, for these costs are not within the purview or contemplation of the statute which requires the filing of a cost bill. (Farmers' Co-op. Ditch Co. v. Nampa-Meridian Irr. Dist., supra.)

W. W. Adamson, for Respondents.

No expenses for the agricultural survey are a proper charge against litigants in the suit unless the original map and data required by law are filed with the court for use as evidence by litigants before the trial of the case, and a copy filed in the office of the department. (C. S., sec. 7032.)

In case the department has already made such examination under sec. 5604 upon request of the court it shall furnish a certified copy of the records of the examination brought down to date by further examination by the department, and "Such certified copies of such records shall be filed and received as evidence as in this section provided" before the same can be made a charge against the litigants. (C. S., sec. 7032, last paragraph.)

ENSIGN, Commissioner. Budge, Givens, Taylor and T. Bailey Lee, JJ., concur. Wm. E. Lee, C. J., did not sit and took no part in the opinion.

OPINION

ENSIGN, Commissioner.--

This is an appeal from a judgment of the district court for Custer county, rendered on the seventeenth day of February, 1926, adjudicating the waters of the Pahsimaroi River and its tributaries, in which it is sought by the intervenor, state of Idaho, and appellant here, to test the authority of the court in refusing to determine and adjudge the proportionate amount to be paid by each party to the action for an agricultural examination and survey made by the department of reclamation pursuant to an order of said court, and to assess the same against all of said parties as costs; said appeal involving an interpretation of C. S., secs. 5604 and 7032.

The facts in substance are as follows:

The complaint in said action was filed June 10, 1919, and on March 20, 1920, as provided by secs. 5604 and 7032, supra, the court made an order requesting the department of reclamation to make a survey and examination of the streams, canals and ditches involved in said action, together with the lands irrigated therefrom as well as lands susceptible to such irrigation, and to prepare a map as provided in said sections showing such streams, canals and ditches and the lands thereunder, accompanied by a statement giving the condition of such work, the capacity of said canals and ditches and the amount of land irrigated therefrom, and other essential features in relation to the reclamation of said lands, for use as evidence in said cause.

Pursuant to the order, the department of reclamation made such examination and survey and prepared a map and statement which was apparently complete in all particulars except that no showing of the capacities of the various ditches and canals was included, and did not file the same or a copy thereof with the court. Thereafter the commissioner of reclamation made in duplicate an itemized statement of expenses as provided for and forwarded them to the state auditor, who presented said statement to the state board of examiners; the same being allowed by said board in the sum of $ 3,014.99, and in due time paid by the state treasurer; said sum being certified, as required by law, by the state auditor to the judge and clerk of said court on April 23, 1921.

The case was heard before a referee on the eleventh day of August, 1924, and on the following day the provisions of the decree were stipulated, and findings made by the referee on September 1, 1924. On March 25, 1925, appellant intervened and filed an affidavit of the state auditor showing that the itemized statement of expenses heretofore referred to had been certified to the judge and clerk as provided by law; it...

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6 cases
  • Keenan v. Price
    • United States
    • Idaho Supreme Court
    • June 30, 1948
    ... ... determine what the legislature intended, and to give effect ... to that intent. Hamilton v. Swendsen, 46 Idaho 175, ... at page 180, 267 P. 229, and cases therein cited. See also ... Northern P. R. Co. v. Shoshone County, 63 Idaho ... ...
  • Idaho Gold Dredging Company v. Balderston
    • United States
    • Idaho Supreme Court
    • January 25, 1938
    ... ... may look beyond its literal language to determine the ... legislative intent and give effect thereto. ( Hamilton v ... Swendsen, 46 Idaho 175, 267 P. 229; Smallwood v ... Jeter, 42 Idaho 169, 244 P. 149.) ... Chapter ... 65, 1935 First ... ...
  • Intermountain Title Guaranty Company v. Egbert
    • United States
    • Idaho Supreme Court
    • November 19, 1932
    ...reasonable or possible. (State v. Omaechevviaria, 27 Idaho 797, 152 P. 280; Smallwood v. Jeter, 42 Idaho 169, 244 P. 149; Hamilton v. Swendsen, 46 Idaho 175, 267 P. 229; Gallafent v. Tucker, 48 Idaho 240, 281 P. State v. Holder, 49 Idaho 514, 290 P. 387; Diefendorf v. Gallet, 51 Idaho 619, ......
  • Knight v. Class A School Dist. No. 2
    • United States
    • Idaho Supreme Court
    • January 11, 1955
    ...and effect; the object being to determine what the legislature intended, and to give effect to that intent. Hamilton v. Swendsen, 46 Idaho 175, at page 180, 267 P. 229, and cases therein cited. See also Northern P. R. Co. v. Shoshone County, 63 Idaho 36, at page 40, 116 P.2d 221; State v. H......
  • Request a trial to view additional results

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