In re Assessments of Benefits of King Hill Irrigation Dist.

• Decision Date: 23 April 1923
• Citation: 37 Idaho 89,221 P. 839
• Parties: In the Matter of the Assessments of Benefits of the KING HILL IRRIGATION DISTRICT. v. CRASTER FARM & ORCHARD COMPANY, SUMMERS & FALK, JOHN J. MCGINNIS, R. R. DUFFY, Appellants KING HILL IRRIGATION DISTRICT, Respondent,
• Court: Idaho Supreme Court

221 P. 839

37 Idaho 89

In the Matter of the Assessments of Benefits of the KING HILL IRRIGATION DISTRICT.

KING HILL IRRIGATION DISTRICT, Respondent, v. CRASTER FARM & ORCHARD COMPANY, SUMMERS & FALK, JOHN J. MCGINNIS, R. R. DUFFY, Appellants

Supreme Court of Idaho

April 23, 1923

IRRIGATION DISTRICT-OWNERSHIP OF CANAL SYSTEM-FEDERAL LOAN-ASSESSMENT OF LANDS FOR BENEFITS-ESTOPPEL.

A party owning a paid-up water right and a proportionate interest in the inefficient canal system of a Carey Act project through its agents participated in the organization of an irrigation district for the purpose of obtaining a loan of $1,000,000 from the federal government to reconstruct and improve such canal system had notice of all subsequent proceedings by which such loan was obtained and offered no objection thereto, knew when actual work was begun on reconstructing and improving such canal system, and knew of the progress of such work for more than a year prior to the levying of assessments for benefits and offered no objection to such work or expenditure until the district court was petitioned to confirm such assessments more than a year after the work had begun and a large proportion of the loan had been expended and great benefits to the canal system had thereby been secured. Held, that such party is estopped to object to the assessment of benefits against its land to repay such loan on the ground that the irrigation district had not acquired ownership of the canal system prior to the levy of such assessments.

APPEAL from the District Court of the Third Judicial District, for Elmore County. Hon. Chas. P. McCarthy, Judge.

Petition to confirm assessment of benefits against lands in King Hill Irrigation District. Judgment for petitioner. Defendants appeal. Affirmed.

Judgment of the trial court affirmed as to all appellants with costs to respondents.

Richards & Haga, for Appellant Craster Farm & Orchard Co.

The construction company could not mortgage more than it owned and on foreclosure only what was included in such mortgage was sold. (Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 P. 81.)

The federal government as the owner of the interest of such construction company has the right to enforce payments of such contracts for the purchase of water rights. (C. S., sec 3021; Adams v. Twin Falls etc. Co., 29 Idaho 357, 161 P. 322.)

The statutes of Idaho relating to irrigation districts require an irrigation district to own the irrigation system within its boundaries or construct a system before it acquires jurisdiction to levy assessments against the lands of water users for the purchase or contruction of an irrigation system. (C. S., secs. 4314, 4346, 4350, 4351, 4359, 4368, 4410; Stimson v. Alessandro Irr. Dist., 135 Cal. 389, 67 P. 496; Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 P. 81; Nampa & Meridian Irr. Dist. v. Briggs, 27 Idaho 84, 147 P. 75; Pioneer Irr. Dist. v. Walker, 20 Idaho 605, 119 P. 304; Pioneer Irr. Dist. v. Stone, 23 Idaho 344, 130 P. 382; Maynard v. Oregon & Nav. Co., 46 Ore. 15, 78 P. 983, 68 L. R. A. 477; Interstate Tr. Co. v. Montezuma Irr. Dist., 66 Colo. 219, 181 P. 123; Bennett v. Twin Falls etc. Co., 27 Idaho 643, 150 P. 336; Walla Walla Irr. Dist. v. Preston, 46 Ore. 5, 78 P. 982.)

The proceeding in making the assessment contravenes the constitutional right of this appellant as to due process of law and equal protection under the law. (Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979; Duncan v. State, 152 U.S. 377, 14 S.Ct. 570, 38 L.Ed. 485; Caldwell v. State, 137 U.S. 691, 11 S.Ct. 224, 34 L.Ed. 816; Oury v. Goodwin, 3 Ariz. 255, 26 P. 376; State v. Ashbrook, 154 Mo. 375, 77 Am. St. 765, 55 S.W. 627, 48 L. R. A. 265.)

Thompson & Bicknell, Chas. Stout, B. E. Stoutemyer and John C. Rice, for Respondents.

It is not necessary that an irrigation district hold legal title to an existing irrigation system in order to have authority to expend money and incur obligations in the construction of irrigation works necessary to furnish water to the lands of the district. An irrigation district is authorized either to construct works or to buy works, or both. (C. S., sec. 4346; Bissett v. Pioneer Irr. Dist., 21 Idaho 98, 120 P. 461.)

Contracts for this purpose between the United States and irrigation districts are expressly authorized by statute. (C. S., secs. 4468-4492.)

This court has frequently upheld the authority of irrigation districts to contract with the United States to improve the water supply or the irrigation or drainage facilities necessary for the irrigation or reclamation of the lands of the district, and in none of these cases was it found necessary that the district hold or acquire legal title to the works to be employed as the means of furnishing the improved water supply. (Pioneer Irr. Dist. v. Stone, 23 Idaho 244, 130 P. 382; Hillcrest Irr. Dist. v. Brose, 24 Idaho 376, 133 P. 663; Nampa & Meridian Irr. Dist. v. Petrie, 28 Idaho 227, 153 P. 425.)

Appellant by its action in urging the officers of the district and of the United States to construct the very works which appellant now claims the district was without authority to construct is estopped to object to the assessment of its lands for its share of the expenditure, even if it were true that the district was without authority to contract for such construction and if all questions in regard to the validity of the contract, the authority of the district to make the same, and the validity of the obligation provided for therein had not been foreclosed by the decree confirming the contract. (Page v. Oneida Irr. Dist., 26 Idaho 108, 141 P. 238; City of Evansville v. Pfisterer, 34 Ind. 36; Jackson v. Smith, 120 Ind. 520, 22 N.E. 431; Montgomery v. Wasem, 116 Ind. 343, 15 N.E. 795, 19 N.E. 184; City of Logansport v. Uhl, 99 Ind. 531; Stewart v. Board, 45 Kan. 708, 26 P. 683; Prezinger v. Harness, 114 Ind. 491, 16 N.E. 495; Baker v. Clem, 102 Ind. 109, 26 N.E. 215; Brosemer v. Kelsey, 106 Ind. 504, 7 N.E. 569, and cases cited.)

"Having accepted the benefits, he will be deemed to have ratified the proceedings, whatever may have been their character." ( Kellogg v. Ely, 15 Ohio St. 64; Hathaway v. Payne, 34 N.Y. 92.)

Appellant did not join issue on any of the material allegations of the petition, but admitted all the allegations either by express admission or by failure to deny, and then attempted to set up certain extraneous and immaterial matters by affirmative allegations. Such an answer raises no issue as to the material allegations of the petition and requires no more detailed finding of facts than if no answer had been filed. ( Black Canyon Irr. Dist. v. Fallon, 21 Idaho 537, 122 P. 850.)

"The fact that the district did not condemn and purchase his water right is not a reason why his land would not be subject to assessment under the statute, if in any manner benefited by the organization of the district." (Knowles v. New Sweden Irr. Dist., 16 Idaho 235, 101 P. 87, 91.)

Appellant having allowed its land to be included in the district and having failed to make any showing before the board of county commissioners and having allowed the organization of the district to be confirmed by decree of the court, cannot now attack the jurisdiction of the district to assess its lands, or be heard to claim that its lands will receive no benefit. (Oregon Short Line R. Co. v. Pioneer Irr. Dist., 16 Idaho 578, 102 P. 904.)

DUNN, J. Budge, C. J., and Wm. E. Lee, J., concur. WILLIAM A. LEE., J., Dissenting.

OPINION

DUNN, J.

In this proceeding, which was commenced in the district court of Elmore county, appellants are resisting the assessment of $ 65 per acre upon their lands which was levied by the directors of the King Hill Irrigation District as benefits to said lands from the expenditure of a large amount of money, approximately $ 1,000,000, by the government of the United States in rebuilding, enlarging and improving certain portions of the canal system through which the lands of said irrigation district receive water.

King Hill Irrigation District embraces lands that were formerly included in the King Hill Carey Act project. The reclamation of this project was undertaken pursuant to a contract made by the state of Idaho with the King Hill Irrigation and Power Campany. The estimated cost of the reclamation of the lands included in the project was $ 600,000, but after the expenditure of this sum and a million dollars besides it was found that the system was so imperfect that the state was unable to show that an ample supply of water had been actually furnished to reclaim the lands embraced in the project and therefore was unable to secure patents for the land claimants, including appellants herein. The King Hill Irrigation and Power Company was without further means to fulfill its contract. It had mortgaged to the Continental and Commercial Trust and Savings Bank its interest in the canal system constructed by it, its water appropriation, its contract with the state of Idaho and its lien upon the water right contracts and lands of the contract holders who had not paid up in full, for funds with which to construct the irrigation system, and having defaulted in its payment of interest the mortgage was foreclosed and all of the construction company's interest in the mortgaged property, which was a lien thereon, was sold to the state of Idaho for $ 30,000. The deed conveying this interest to the state of Idaho was dated March 14, 1914. The appellants had paid in full for their water rights and thereby became the owners of such water rights and of a proportionate interest in the canal system. Their rights were therefore not affected by the foreclosure proceedings against the construction company.

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