Idaho Fruit Land Co., Ltd. v. Great Western Beet Sugar Co., Ltd.

Citation18 Idaho 1,107 P. 989
PartiesIDAHO FRUIT LAND CO., LTD., Appellant, v. GREAT WESTERN BEET SUGAR CO. and ELMORE COUNTY IRRIGATED FARMS ASSOCIATION, Respondents
Decision Date11 March 1910
CourtUnited States State Supreme Court of Idaho

WRITTEN CONTRACT-BEST EVIDENCE-PRE-CONTRACT STATEMENTS-PERPETUAL WATER RIGHTS-RIGHTS OF WATER USER-SUFFICIENCY OF EVIDENCE.

(Syllabus by the court.)

1. It was not error for the trial court to sustain a motion to strike out evidence of the contents, character and nature of a written contract, where the contract itself was not produced and it appeared that it was in existence and could have been produced. The writing itself was the best evidence of its contents and the rights conferred thereunder.

2. A prospectus containing statements as to the character and nature of contracts proposed to be made and entered into by the company issuing the prospectus, standing alone, is not sufficient upon which to found a cause of action. Where the action is based on a written contract entered into in pursuance of the statements contained in such prospectus, the presumption is that the entire contract was embodied in the writing.

3. A purchase of a perpetual water right from an irrigation company, with the right to receive the water so purchased from the company's canal, carries with it such a right in the appropriation itself and such an easement or servitude in the canal system as to authorize and enable the purchaser himself to go upon the property and protect the appropriation and maintain the diversion, and repair the canal, and carry the water through the canal system to the extent of the purchaser's water right, in the event the company fails, neglects or refuses to do so.

4. A legal distinction exists and should be maintained between the absolute fee, title and ownership of property itself and those contractual rights which arise out of mutual consent and give a contracting party certain claims, easements or servitudes in and to the property, and which by their very nature impress themselves upon the property itself, either for a time or perpetually.

5. Evidence in this case examined, and held sufficient to support the findings and judgment.

APPEAL from the District Court of the Fourth Judicial District, in and for the County of Elmore. Hon. E. A. Walters, Judge.

Action by plaintiff praying for a decree adjudging it, together with a number of individuals in whose behalf it sues, to be the legal owners of the irrigation system described in the complaint. Judgment for the defendants, and the plaintiff appeals. Affirmed.

Judgment affirmed. Costs in favor of respondents.

J. G Watts, and Wyman & Wyman, for Appellant.

This court has held that where the consideration has been paid the contract may be enforced independent of a written contract. (Deeds v. Stephens, 8 Idaho 514, 69 P 534; Stowell v. Tucker, 7 Idaho 312, 62 P. 1033; Barton v. Dunlap, 8 Idaho 82, 66 P. 832; Rev. Codes, sec. 6008.)

A perpetual water right is more than a mere right to the use of water; it is a grant of an interest in the original appropriation, and an easement through the reservoir and canals built to store and conduct it to lands where it is to be used.

In nearly every adjudicated case, the courts have held that the consumer's interest is a real property interest. (Stanislaus Water Co. v. Bachman, 152 Cal. 716, 93 P. 858, 15 L. R. A., N. S., 359; Wyatt v. Larimer & Weld Irr. Co., 18 Colo. 298, 36 Am. St. 280, 33 P. 144; Gould v. Maricopa Canal Co. (Ariz.), 76 P. 598; Salt River Valley Canal Co. v. Nelsen, 10 Ariz. 9, 85 P. 117, 12 L. R. A., N. S., 711; Wiel on Water Rights, 2d ed., p. 641; Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 P. 81.)

E. M. Wolfe, for Respondent, Elmore County Irrigated Farms Assn.

This court has frequently held that the company which supplies the water user is the appropriator of the water while he is the user of the water. The appropriation belongs to the water company; the right to use that appropriation belongs to the water user.

The obligations of the company are fixed by the constitution and the statutes of this state, and are entirely distinct from the obligations and rights of the water user.

The duty of the corporation is a public or quasi-public duty. The right and duty of the water user is a private right and personal duty. The corporation cannot shift it or avoid its duty without forfeiture of its franchise. (Wilterding v. Green, 4 Idaho 73, 45 P. 134; Farmers' etc. Co. v. Riverside etc. Irr. Dist., 14 Idaho 450, 94 P. 761; Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 P. 81, and cases cited in these decisions.)

W. C. Howie, and Cavanah & Blake, for Respondent, the Great Western Beet Sugar Company.

It has been universally held that the payment of the consideration alone upon an oral contract for an interest in lands is not sufficient part performance to take it out of the statute of frauds. (20 Cyc. P. & P. (N. Y.) 783; Cooley v. Lobdell, 153 N.Y. 596, 47 N.E. 783; Goddard v. Donaha, 42 Kan. 754, 22 P. 708.)

AILSHIE, J. Stewart, J., SULLIVAN, C. J., Concurring.

OPINION

AILSHIE, J.

This action was instituted by the appellant, the Idaho Fruit Land Co., Ltd., for itself as the owner of a tract of land and on behalf of "about 300 who own lands aggregating in all about 40,000 acres . . . . in Elmore county, Idaho," alleging "that all of the owners of said lands are owners of water rights entitling them to the use of water from the irrigation system hereinafter described, and are the joint owners of said system, and that this plaintiff sues in his own behalf and in behalf of owners of all of said lands and water rights and of said irrigation system." The plaintiff prayed for a decree declaring the irrigation system described in the complaint to be the property of the plaintiff, and other parties in whose behalf plaintiff prosecuted the action, and further decreeing that the Great Western Beet Sugar Company, one of the respondents herein, has no further interest in the property or irrigation system. The complaint also asks for the appointment of a receiver, pendente lite, to take charge of, and repair and operate the irrigation system during the pendency of the action. A receiver was accordingly appointed, and an appeal was taken from the action of the trial court in making such appointment, and the action of the lower court was affirmed by this court. (Idaho Fruit Land Co. v. Great Western Beet Sugar Co., 17 Idaho 273, 105 P. 562.) The case was subsequently tried on its merits, and findings and judgment were made and entered in favor of the defendants and denying the plaintiff the relief demanded. This appeal is from the judgment.

The brief of appellant contains no assignment or specification of errors, and we are accordingly left to an examination of the arguments and the record in the case without anything very definite as to a specific error upon which appellant assails the judgment or relies for a reversal thereof. We shall consider the matters, however, that are dealt with in the brief and argument of appellant.

The appellant alleged, and now contends, that it has proven that its contract and the contracts of all the other water users under the Great Western Beet Sugar Co.'s canal provided in terms that when the system should be completed and all the water rights sold and paid for that the system was capable of supplying, the canal, reservoirs and entire property should at once become the property of the water right holders. It also insists that the system has been completed so far as the Great Western Beet Sugar Co. is able to complete it, and that the company is now insolvent and unable to proceed further or meet its outstanding obligations, and that it has sold water rights far in excess of the capacity of the system, and that in addition to becoming hopelessly insolvent it has lost all further interest in maintaining, improving or operating the system.

The appellant also maintains, as a second proposition, that the Great Western Beet Sugar Co., which we shall hereafter designate as the "Great Western," has sold perpetual water rights, and that such a water right is more than a mere right to the use of the water but amounts to a grant of an interest in the original appropriation and irrigation system, and that the moment the Great Western has sold such rights in excess of the capacity of its irrigation system the entire system at once became the property of the purchasers of such perpetual water rights. When the plaintiff in the lower court undertook to prove its right in this property and the rights of the 300 water users, in whose behalf it claims to have instituted this action, it did not introduce or offer to introduce its deed or contract in evidence, nor did it introduce or offer to introduce the deed or contract held by any water user which had been entered into between the water user and the Great Western. In course of the trial, however, the plaintiff attempted to prove by water right claimants the nature and character of their contracts with the Great Western. The court at first overruled objections to this class of evidence, but on cross-examination it developed that their contracts or deeds were all in writing, and the objections were thereupon renewed and motions were made to strike the evidence as to the nature and contents of the contracts from the record on the ground, first, that a water right is real property and must be conveyed by deed, and, second, that the deeds or writings themselves were the best evidence and that secondary evidence thereof should not be admitted. These motions were sustained. The ruling of the court was clearly correct.

In our judgment, as we view the whole record in this case, the final decision of the trial court turned upon the...

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