Herrett v. Warmsprings Irr. Dist.

• Decision Date: 13 November 1917
• Citation: 168 P. 609,86 Or. 343
• Parties: HERRETT v. WARMSPRINGS IRR. DIST. ET AL.
• Court: Oregon Supreme Court

168 P. 609

86 Or. 343

HERRETT v. WARMSPRINGS IRR. DIST. ET AL.

Supreme Court of Oregon

November 13, 1917

In Banc.

Appeal from Circuit Court, Malheur County; Dalton Biggs, Judge.

Suit by Vernon T. Herrett against the Warmsprings Irrigation District and others. From a decree dismissing the suit, plaintiff appeals. Affirmed.

This is a suit by Vernon T. Herrett, a resident and owner in fee of real property situate within certain boundaries in Malheur county, Or., against the Warmsprings Irrigation District, an alleged pretended corporation, George McLaughlin, R. E Weant, J. H. Russell, C. W. Mallett, and Rex Marquis, as its feigned directors, and John Rigby and F. M. Vines, as its simulated secretary and treasurer, respectively, to have it decreed that the proposed district is not legally organized and is without authority to impose taxes upon real property therein, to issue or sell the bonds thereof, or to do any act that may impose a burden upon plaintiff's lands, and to enjoin the defendants from further proceeding as a corporation and from attempting to issue or sell any bonds. The complaint sets forth those parts of the proceedings undertaken to organize the district which it is alleged rendered the attempted forming of the corporation invalid. The answer denies the material averments of the complaint and as a separate defense details all the proceedings whereby it is asserted the district was organized, its officers were elected, and the issuance of bonds in the sum of $750,000 was voted. As a further defense and in bar of the maintenance of this suit it is substantially alleged that, on September 13 1916, the defendants, the board of directors of the corporation, filed in a circuit court of the state of Oregon for Malheur county an initiatory pleading, in order to obtain a determination of the regularity of the organization of the district and of the validity of the bonds so voted; that a summons therein was duly issued and legally served, requiring all interested persons to appear in that court at a time stated; that no demurrer, answer, other pleading, or objection of any kind therein was ever made or filed; that the court considering the entire proceedings, copies of which were made a part of the initiatory pleading, decreed November 6, 1916, that the Warmsprings Irrigation District had been duly and regularly organized as a corporation, and that the bonds so voted were first obligations of the district and should be issued; and that, more than 60 days from the making of the decree having elapsed without an appeal having been taken, such final determination has become res adjudicata as to the plaintiff herein and to all other interested persons. The reply denied the averments of new matter in the answer and this cause having been tried findings of fact and conclusions of law were made and filed, based upon which the suit was dismissed, and the plaintiff appeals.

Hurley & Hurley, of Vale, for appellant. Davis & Kester, of Vale, for respondents.

MOORE J. (after stating the facts as above).

It is contended that the petition designed to inaugurate the proceedings for the organization of the Warmsprings Irrigation District was insufficient for that purpose, by reason whereof the county court of Malheur county, Or., never obtained jurisdiction of the subject-matter, and that such being the case an error was committed in dismissing this suit, notwithstanding the statute declares that the order of the county court determining certain essential particulars "shall be conclusive evidence of the facts found by the court." L. O. L. § 6168, as amended by chapter 189, Gen. Laws Or. 1915, which clause was in force when these proceedings were instituted. The enactment, however, relating to irrigation districts has been repealed, and another statute substituted in lieu thereof by chapter 357, Gen. Laws Or. 1917. Section 6167, L. O. L., as amended by chapter 189, Gen. Laws Or. 1915, declares:

"Whenever fifty, or a majority of the holders of title to lands susceptible of irrigation from a common source or combined sources and by the same system or combined systems of works desire to provide for the irrigation of the same, they may propose the organization of an irrigation district, under the provisions of this act."

Section 6168, Id., as thus amended reads in part:

"For the purpose of organizing an irrigation district as provided by this act, a petition signed by the required number of holders of title to the lands within the boundaries of such proposed irrigation district shall be presented to the county court of the county in which the land, or the greatest portion thereof, is situated; said petition shall set forth and particularly describe the boundaries of the proposed irrigation district and shall state that it is the purpose of the petitioners to organize an irrigation district under the provisions of this act, and shall pray that the same be organized hereunder."

The petition initiating the proceedings to organize the Warmsprings Irrigation District was filed with the county clerk of Malheur county, March 2, 1916. It was addressed to the county court of that county and reads in part:

"We, the undersigned citizens of the United States, owners of land within the boundaries as hereinafter described, or who are bona fide claimants to unoccupied land under the laws of the United States, or of the state of Oregon, all being duly qualified electors under the law of the state of Oregon for organizing irrigation districts, being desirous of forming an irrigation district embracing land hereinafter designated within boundaries hereinafter described and set forth, utilizing the waters of the Malheur river for the purposes of irrigation, hereby petition your honorable court as follows: That, under and by virtue of the Irrigation District Law of Oregon, as recited in chapter 7 of Lord's Oregon Laws, and as amended by chapter 223, Laws of Oregon for 1911, and also as amended by chapters 17 and 197, Laws of Oregon for 1913, and also as amended by chapter 189, Laws of Oregon for 1915, providing for the organization and management of irrigation districts, your honorable court do proclaim a district as set forth herein, designating the name of said district and dividing said district into five subdistricts and defining the boundaries thereof; that your honorable court proceed with such dispatch as may be under said law to call an election for the purposes above set forth and do all things necessary under said law for the formation of said district, designating the time and places for voting at said election, and that the boundaries and description of land under said district shall be as follows, to wit:"

--giving the courses and distances of the proposed district from and to the beginning point. There was excepted from the described area, however, the land included within the boundaries of the municipality of Vale, as recorded in the office of the county clerk of Malheur county, together with other specified lands. The names of 82 persons were subscribed to the petition. There was also filed on March 2, 1916, a bond in the sum of $500, in which Malheur county was designated as the obligee, and it was conditioned that, if the 14 obligors whose names were subscribed thereto should well and truly pay all costs that might be incurred by the county in case the organization of the district was not consummated, the obligation was to be void, or otherwise to be in full force and effect, which undertaking was duly approved. Under the caption in bold face type, "To be presented to the county court of Malheur county on the 5th day of April, 1916," the entire petition was published in the Malheur Enterprise, a weekly newspaper printed and published in that county, once each week for more than four successive weeks prior to the time so specified at which the petition was to be presented, commencing with the issue of March 4, 1916, and ending with that of April 1st of that year, proof of which was duly made by the affidavit of the foreman of the publisher of that paper and filed April 5, 1916. The petition, the affidavit of the foreman of the printer attached to a copy thereof, and the undertaking referred to were presented April 5, 1916, to the county court, which by order duly made and entered appointed the 15th of that month at the courthouse in Vale as the time and place when and where should be heard any protests against and arguments in favor of organizing the proposed district, and all persons interested therein were notified by such order to be present at the time so designated. The court convened at the time and place specified and made and entered in its journal an order as follows:

"In the matter of organizing an irrigation district: The county court of Malheur County having set April 15, A. D. 1916, for the purpose of hearing argument, suggestion, protest, and petitions regarding the organization of an irrigation district utilizing the waters of the Malheur River, after listening to a large number of owners and bona fide claimants of government land, whose acreage can be watered from said proposed system and which is within the boundaries of said proposed district, having carefully investigated and considered and having ascertained that in accordance with the laws of Oregon made and provided for the organization of irrigation districts. The petition presented on April 5 contained the requisite number of signers owning land under said proposed district, and that said land can be irrigated by said water; that said petition had been published for four consecutive weeks prior to such presentment; that said petition upon presentment was accompanied with a satisfactory bond for five hundred dollars, indemnifying Malheur County against loss in

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