Idaho Irr. Co., Ltd. v. Pew

• Decision Date: 03 July 1914
• Citation: 141 P. 1099,26 Idaho 272
• Parties: IDAHO IRRIGATION COMPANY, LTD., a Corporation, Respondent, v. ADOLPH PEW and H. E. CORNELL, Appellants
• Court: Idaho Supreme Court

141 P. 1099

26 Idaho 272

IDAHO IRRIGATION COMPANY, LTD., a Corporation, Respondent, v. ADOLPH PEW and H. E. CORNELL, Appellants

Supreme Court of Idaho

July 3, 1914

FORECLOSURE OF CAREY ACT LIEN-GROUNDS OF DEMURRER TO COMPLAINT-SEC. 1629 REV. CODES, AND FEDERAL CAREY ACT CONSTRUED-CONTRACTS BETWEEN STATE AND IRRIGATION COMPANY AND COMPANY AND SETTLER-WAIVER-ESTOPPEL.

1. In an action to foreclose a Carey Act lien under the provisions of sec. 1629, Rev. Codes, it is not necessary to allege in the complaint that the entire irrigation system has been completed, if it appears from the allegations of the complaint that an ample supply of water has been made permanently available for the tract of land upon which the lien is sought to be foreclosed, to the extent that the contract of the irrigation company to furnish such supply to the land in question has been fulfilled.

2. Sec 1629, Rev. Codes, conferring a lien on land and water for water furnished to land, and the amendment to the federal Carey Act (29 U.S. Stats. at L., p. 435), authorizing the state to create a lien on the land, must be construed together, and the lien cannot attach until the provisions of both acts have been compiled with.

3. The amendment to the federal Carey Act in fixing the amount of the lien upon the land to be created by the state at "the actual cost of reclamation and reasonable interest thereon from the date of reclamation until disposed of to actual settlers," contemplates the determination of such cost by the state, and that in a contract between the state and a corporation for the construction of irrigation works such cost must be estimated or determined in advance as a basis for the contract between them.

4. In a contract between a Carey Act irrigation company and a settler, in which, by reference, the terms and conditions of the contract between the state and the irrigation company are assented to, and the price of water rights is fixed upon the basis of the estimated cost of the works contained in the state contract, both the company and the settler are estopped from afterward raising the question as to whether such estimated cost is the actual cost of the works.

5. In a suit to foreclose a Carey Act lien the cause of action arises under the state statute, and it is not necessary to allege in the complaint that a requirement of the federal statute, not contained in the state statute, has been complied with.

6. Held, that the complaint in this case is not demurrable on the ground of being ambiguous, unintelligible or uncertain.

APPEAL from the District Court of the Third Judicial District, in and for Ada County. Hon. Carl A. Davis, Judge.

Action to foreclose a Carey Act lien for default in payment by defendants of deferred payments upon a water right, purchased by defendant Pew under contract from the plaintiff corporation. Demurrer to complaint overruled, and from the order overruling the demurrer defendant Cornell appeals. Affirmed.

Judgment of the lower court affirmed. Costs awarded in favor of respondent.

B. W. Oppenheim, for Appellants, cites no authorities.

N. M. Ruick, for Respondent.

The reclamation project need not be completed before the construction company is entitled to foreclose its lien on a particular tract. (Childs v. Neitzel, ante, p. 116, 141 P. 77.)

Under the provisions of sec. 1629, Rev. Codes, upon the default of any deferred payments, the lienholders may foreclose the same in accordance with the terms and conditions of the contract for the purchase of the water right. (Idaho Irr. Co. v. Dill, 25 Idaho 711, 139 P. 714.)

AILSHIE, C. J., Sullivan, J., concurs.

OPINION

AILSHIE, C. J.

The complaint in this case is almost identical with the one in Idaho Irr. Co. v. Dill, recently decided by this court (25 Idaho 711, 139 P. 714), and the action is of the same nature. In that case the question presented was whether the lower court erred in sustaining a demurrer to the complaint upon the ground that the United States was a necessary party to the action, and upon that question this court reversed the court below.

By stipulation of counsel it was agreed that the contract which the plaintiff corporation made with the defendant in this case was the same as in the Dill case, the only difference being in the date, name of purchaser, description of the land, etc., which minor differences were admitted to be immaterial, and the contracts introduced in evidence in the Dill case, including the contract and supplemental contract between the company and the state, were stipulated to be considered part of the record in this case.

The defendant Pew, the original purchaser, had assigned all his interest under the contract to the defendant Cornell, who alone appeared and demurred to the complaint. The lower court overruled the demurrer. Defendant elected to stand thereon and declined to plead further. The demurrer alleged that the complaint did not state facts sufficient to constitute a cause of action, and particularly in (1) that the plaintiff has not alleged that the irrigation system, which by the terms of the contracts set up in the complaint it agreed to construct, has been completed; (2) that the plaintiff has not alleged that the amounts sued upon and for which a lien is claimed are "the actual cost of reclamation (of the land described in the complaint) and reasonable interest thereon from the date of reclamation until disposed of to (an) actual settler (s)"; (3) "that no valid lien can be created under existing law against either land or water, as is attempted to be done under the allegations of the complaint herein."

1. We do not think it necessary for the plaintiff to allege that the entire reclamation system has been completed, in an action to foreclose a lien against a single purchaser of a water right under the Carey Act. The essential thing that concerns the particular land owner and purchaser of the water right is whether or not the reservoir and main canal have been so far completed as to enable the company to regularly and permanently supply him with water for the irrigation of his land, and that the company has commenced and continues to do so. The amendment to the Carey Act (29 U.S. Stats. at L., p. 435), after authorizing the state to create the lien against the land for the cost of reclamation, continues as follows: "And when an amply supply of water is actually furnished in a substantial ditch or canal, or by artesian wells or reservoirs, to reclaim a particular tract or tracts of such lands, then patents shall issue for the same to such state without regard to settlement or cultivation." This language explicitly refers to a "particular tract," implying that the issuance of patent for any one tract is not dependent on the completion of the whole reclamation system, but on the actual furnishing of a permanent supply of water to that "particular tract." The government then considers that the contract has been executed on the side of the state so far as that tract is concerned, and parts with its title accordingly, and it would certainly seem that the settler is assured of a permanent water supply when the "particular tract" has been so far reclaimed in the view of the government of the United States as to entitle the state and himself to a patent therefor. The fact that some other land owner and purchaser of a water right is not yet receiving water, or that the system has not been so far completed as to furnish another with water, does not justify one who has and is receiving a permanent and continuous supply of water for the irrigation of his land in refusing to pay for it. We find no provision in the Carey Act, nor in the laws of this state, nor in the contracts in evidence, which requires that the reclamation works shall be entirely completed before any of the deferred payments shall mature. If, as a matter of fact, a company that is seeking to foreclose such a lien has not made water permanently available to the land in question, and available in sufficient quantities and seasons to comply with the provisions of the contract, such defense will always be open to the settler.

A similar question arose on rehearing in the recent case of Childs v. Neitzel, ante, p. 116, 141 P. 77, in which the contract with the settler also contemplated the payment for water rights by annual installments, and the court said:

"We did not mean to hold in the original opinion that the annual installments...