Howard v. Cook

• Citation: 59 Idaho 391,83 P.2d 208
• Decision Date: 01 October 1938
• Docket Number: 6515
• Parties: HUGH E. HOWARD, Respondent, v. IRWIN C. COOK, INA R. COOK and STATE OF IDAHO, Appellants
• Court: United States State Supreme Court of Idaho

83 P.2d 208

59 Idaho 391

HUGH E. HOWARD, Respondent, v. IRWIN C. COOK, INA R. COOK and STATE OF IDAHO, Appellants

No. 6515

Supreme Court of Idaho

October 1, 1938

STATES - CIVIL ACTIONS BY STATE - ATTORNEY GENERAL - CLAIMS AGAINST STATE - WATER AND WATERCOURSES - ABANDONMENT OF WATER RIGHT.

1. The phrase "prescribed by law," as used in constitutional provision that state board of land commissioners shall have control and disposition of public lands under regulations as may be prescribed by law, means as prescribed by the legislature. (Const., art. 9, sec. 7.)

2. At common law, the attorney general had the right to institute civil suits for and on behalf of the state for the protection of the state's rights and interests, on his own initiative and at his own discretion.

3. In an action in which the state is the moving party, the other party is entitled to any defense that may be interposed against a private litigant, but this right does not authorize a private litigant to seek affirmative relief by way of complaint, affirmative answer, or cross-complaint against the state, where no authority therefor has been granted.

4. In action against state to quiet title to a decreed water right attorney general had right and authority to file a cross-complaint and thereafter the court had jurisdiction over the state for purposes of granting or denying the relief prayed for by the state in its cross-complaint, regardless of whether plaintiff could sue the state without state's consent. (I. C. A., secs. 55-701, 56-119, 56-120, 65-1301, 65-2901, 65-2902.)

5. In action against state to quiet title to a decreed water right wherein state filed cross-complaint, and decree did not adjudicate anything against the state and refused the state any relief against plaintiff's title in the water, decree was valid and did not adjudicate a "claim against the state" which would be required under Constitution, to be adjudicated in the Supreme Court. (Const., art. 5, sec. 10.)

6. Where two adjacent tracts of land were owned by same person one tract was conveyed to plaintiff, and other tract was ultimately acquired by state on foreclosure of mortgage, in action by plaintiff against state to quiet title to 90 inches of a decreed water right of 180 inches, wherein the state filed a cross-complaint claiming 120 inches of the water, evidence was insufficient to support state's claim to the water.

APPEAL from the District Court of the Fourth Judicial District, for Blaine County. Hon. D. H. Sutphen, Judge.

Action by respondent to quiet title to ninety inches of a decreed water right of 180 inches. Cross-complaint by State of Idaho claiming 120 inches of said water. Judgment for respondent, on appeal by the state, affirmed.

Judgment affirmed, no costs, allowed.

J. W. Taylor, Attorney General, D. W. Thomas and Lawrence B. Quinn, Assistant Attorneys General, for Appellants.

Where an owner of land applies a water right to a whole tract, without distinction or division, for many years, and thereafter divides the tract by selling a portion of it, the water right will follow only in the proportion which the portion of the tract sold bears to the whole area. (Federal Land Bank v. Union Central Life Ins. Co., 51 Idaho 490, 6 P.2d 486; Johnson v. Gustafson, 49 Idaho 376, 288 P. 427; In re Department of Reclamation, 50 Idaho 573, 300 P. 492.)

A state cannot be sued without its consent and the State of Idaho, being an indispensable party defendant in this case and having not consented to the proceedings, the action cannot be maintained. (Thomas & Faris v. State, 16 Idaho 81, 100 P. 761; Fitz v. McGhee, 172 U.S. 516, 524, 19 S.Ct. 269, 43 L.Ed. 535; Gunter v. Atlantic Coast Line R. R. Co., 200 U.S. 273, 26 S.Ct. 252, 50 L.Ed. 477; Hampton v. State Board of Education, 90 Fla. 88, 105 So. 323, 42 A. L. R. 1456.)

A. J. James, for Respondent.

Where in a suit brought against the state, the state appears and files a cross-complaint it cannot be heard to thereafter contend that it cannot be sued in such cause. By filing a cross-complaint the state itself becomes the plaintiff as to such cross-complaint. (State ex rel. Woodward v. Smith, 85 Ind.App. 56, 152 N.E. 836.)

The courts hold that the state has the right to intervene in an action and that they are bound by the judgment thereafter rendered. (There is not distinction between the act of the state intervening or its act in filing a cross-complaint. In each case the state voluntarily submits to the jurisdiction of the court.) (Clark v. Barnard, 180 U.S. 436, 2 S.Ct. 878, at 883, 27 L.Ed. 780.)

Authority to institute or defend actions on behalf of the state resides in the attorney general. (Sec. 65-1301, I. C. A., 6 C. J., p. 812, sec. 18.)

A person taking a conveyance of land and water right has the right, as against a prior mortgagee on other land belonging to mortgagor, to rely on the record which showed water right appurtenant to first land and which failed to show previous mortgage of water right. (Federal Land Bank v. Union Central etc. Co., 54 Idaho 161, 29 P.2d 1009, citing sec. 54-812, I. C. A.)

General use by owner on adjoining ranches of appurtenant water cannot show abandonment of water on one reach and permit transfer to other. (Federal Land Bank v. Union Central Life Ins. Co., 51 Idaho 490, 6 P.2d 486.)

GIVENS, J. Holden, C. J., and Morgan and Ailshie, JJ., concur. Budge, J. did not sit at the hearing not participate in the decision of the case.

OPINION

GIVENS, J.

In 1903, Mrs. Adelade B. Hodgman owned the SE 1/4 of Section 30, Tp. 2 S. R. 21 E. B. M. and was, by what is termed the Woodworth decree (District Court of Blaine County, then Logan, fourth Judicial District, November 28, 1892), adjudicated 180 inches of water with priority of June 14, 1883, expressly made appurtenant to said quarter section. Philip Shanahan, as owner of the S 1/2 NE 1/4 of said section, was therein decreed 50 inches of water with a priority of May 15, 1885, the same being specifically made appurtenant to his land.

In 1909 Mrs. Hodgman was the owner of both above described tracts when the so-called Frost Decree (on demurrer, Frost v. Alturas Water Co., 11 Idaho 294, 81 P. 996; final adjudication, District Court for Lincoln County, Fourth Judicial District, December 13, 1909) was entered, confirming generally the above priorities:

'". . . It is Further Ordered, Adjudged and Decreed that the respective parties, plaintiffs and defendants, in the various actions named in the Findings herein, . . . they and their successors in interest, be and they are hereby awarded the right to the use of the waters of Big Wood River and its tributaries, and the various dry streams named in said decrees, to the extent that they are respectively awarded such use in the various actions and decrees to which they are parties, respectively; but that this right shall not be construed to be a double appropriation of the waters of said streams, and wherein the said parties are rewarded such amounts in this decree, they and their successors in interest, respectively, shall be entitled to the use of only one such rights, to wit: either the right named in said decrees, or the right otherwise awarded in this decree'. It is further stipulated that in Book 6 of said record, page 242 in the case of N. R. Woodworth, et al., versus Frank Anthony, et al., in the Findings of Fact appears the following: 'That the following named persons, plaintiffs and defendants herein, appropriated the following number of inches of water, measured under a four inch pressure from said Little Wood River and its tributaries at the following dates respectively for the purpose of irrigating the lands herein described belonging to said respective parties, to wit:' And that on page 252 of said Findings in said record appears the following: 'Mrs. A. B. Hodgeman, 180 inches, from June 4, 1893 for the irrigation of the South East Quarter (SE 1/4) of Section Thirty (30) Township Two (2) Range Twenty-One (21) East.'"

And also, "Hodgman, Adelaide B., South Half (S 1/2) of the North East Quarter (NE 1/4) of Section Thirty (30), Township Two (2) South, Range Twenty-One (21) East. containing 240 acres," and "Hodgman, Adelaide B. 180 inches, June 14, 1883, Silver Creek." and "Hodgman, Adelaide B. 50 inches, May 14, 1885, Silver Creek." The above 50 inches of 1885 water being the 50 inches decreed to Shanahan in the Woodworth Decree. Some time prior to March 27th, 1922, Mrs. Hodgman sold the S 1/4 NE 1/4 and the N 1/2 SE 1/4 together with all appurtenant water rights to H. H. Cook. March 27, 1922, Cook and his wife mortgaged, among other lands, the N 1/2 SE 1/4 of section 30, which did not include the land now owned by respondent, "together with all other water rights, ditch and canal rights thereunto belonging or in anywise appertaining," to the State of Idaho.

This mortgage not being paid, decree of foreclosure was entered November 23, 1926, specifying the water rights as above set forth in the mortgage and so designated in the sheriff's deed, January 28, 1928.

July 3, 1929, Mrs. Hodgman transferred the S 1/2 of the SE 1/4 of said above section, "together with 90 inches of water dating from June 14, 1883, as decreed in the case of S. C. Frost et al. vs. Alturas Water Co. et al., in the District Court of the Fourth Judicial District of the State of Idaho" to Hugh E. Howard, respondent herein.

The State contends respondent is entitled to only one-third of the 180 inches of water originally decreed to the SE 1/4 of section 30; whereas respondent contends he is entitled to one-half thereof, or 90 inches. Respondent brought this suit against the State and I. C. Cook (son of H. H. Cook), and Ina R. Cook, his wife, tenants of the State in possession of the SE 1/2...