Helphery v. Perrault

• Decision Date: 20 June 1906
• Citation: 12 Idaho 451,86 P. 417
• Parties: DANIEL HELPHERY et al., Appellants, v. JOSEPH PERRAULT et al., Respondents
• Court: Idaho Supreme Court

86 P. 417

12 Idaho 451

DANIEL HELPHERY et al., Appellants, v. JOSEPH PERRAULT et al., Respondents

Supreme Court of Idaho

June 20, 1906

MANDAMUS-SUFFICIENCY OF COMPLAINT-JOINDER OF PLAINTIFFS-COMMON INTEREST OF PLAINTIFFS.

1. Where several land owners contract and agree among themselves to unite in interest and construct their own ditch or lateral, and make a joint application to a ditch company for sufficient water for all their land as one applicant, they may join as plaintiffs in an action to compel the water company to deliver the quantity of water applied for at their headgate.

2. Where several parties agree among themselves to unite in interest and jointly apply as one applicant for water for irrigation purposes and to use and apply the water in rotation, the fact of joinder and rotation in the use of the water are not valid and sufficient grounds on which the water company may refuse to furnish water to them at their common headgate.

3. The times and order of use and application of water by several land owners under the same lateral to their respective tracts of land are matters of no concern to the water company where the several users by agreement among themselves distribute and use the water at the times and in the manner agreeable to them, and the company has no duty but that of seeing that the requisite quantity of water flows through the headgate into the consumer's ditch.

4. Complaint in this case held sufficient to sustain a cause of action and not demurrable for the misjoinder of parties plaintiff.

(Syllabus by the court.)

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Frank J. Smith, Judge of the Seventh Judicial District, presiding.

Action to procure a writ of mandate; demurrer to complaint was sustained and a judgment was entered dismissing the action. Plaintiffs appealed. Reversed.

Reversed and remanded, with directions. Costs awarded to appellants.

Neal &amp Kinyon, for Appellants.

All persons having an interest in the subject of the action and in obtaining the relief demanded may be joined as plaintiffs except when otherwise provided in this code. (Rev. Stats sec. 4101; Frost v. Alturas Water Co., 11 Idaho 294, 81 P. 996; Pomeroy's Code, Remedies, 4th ed., secs. 116, 117; First Nat. Bank v. Hummel, 14 Colo. 259, 23 P. 986; 15 Ency. of Pl. & Pr. 668; Phillips' Code Pleading, sec. 457.)

An agreement can be entered into between water users as to the time and manner of use, and will be respected by the courts and enforced so far as the rights of third parties are concerned. (Lytle Creek Water Co. v. Purdew, 65 Cal. 447, 4 P. 426, 431 et seq.; Long on Irrigation, secs. 61. 111; Wiel on Water Rights, sec. 49.)

Hawley, Puckett & Hawley and Fremont Wood, for Respondents, cite no authorities on the points decided.

AILSHIE, J. Sullivan, J., STOCKSLAGER, C. J., concurring.

OPINION

AILSHIE, J.

This action was commenced for the purpose of procuring a writ of mandate compelling the defendants, doing business under the name of the Perrault Ditch Company, to turn out of their main canal and deliver to the plaintiffs ".14 of a second foot of water per second continuous flow," for the purpose of irrigating certain lands belonging to the plaintiffs. The action is commenced by Daniel Helphery and twelve others. Helphery makes the affidavit in which he says "that he, together with the other above-named plaintiffs, own, possess and occupy the following described real estate, all situated in Lemp's addition to Boise City, Ada county, Idaho namely, etc." He further deposes "that he is duly authorized to represent the interests of all the other plaintiffs herein, and is authorized to receive all notices, orders and directions necessary and proper to be made in and about, procuring, using and distribution of the said water mentioned among these several plaintiffs . . .; that it is the desire of each and every of the said plaintiffs herein that said water shall be used as among themselves as a single stream of water, they applying it to their said tracts of land at such times and in such manner as to them may seem proper." It is also alleged that the plaintiffs have already constructed the necessary ditch or lateral at their own expense for the purpose of carrying and conveying the water applied for from the company's main canal to and upon their respective lands. They allege the necessary and proper tender of a year's rental for the amount and quantity of water for which they applied. The defendants demurred to the complaint or affidavit, on the ground that it does not state facts sufficient to constitute a cause of action or entitle them to a writ, and also on grounds of misjoinder of parties plaintiff. The demurrer was sustained by the trial court and judgment was entered dismissing the action and the plaintiffs have...