In re Drainage Dist. No. 1 of Canyon County

• Decision Date: 19 August 1916
• Citation: 161 P. 315,29 Idaho 377
• Parties: In the Matter of DRAINAGE DISTRICT NO. 1 OF CANYON COUNTY; C. G. BURT et al., Commissioners of Said District, Appellants, v. FARMERS' CO-OPERATIVE CANAL COMPANY and THE NOBLE DITCH COMPANY, Respondents
• Court: Idaho Supreme Court

161 P. 315

29 Idaho 377

In the Matter of DRAINAGE DISTRICT NO. 1 OF CANYON COUNTY; C. G. BURT et al., Commissioners of Said District, Appellants, v. FARMERS' CO-OPERATIVE CANAL COMPANY and THE NOBLE DITCH COMPANY, Respondents

Supreme Court of Idaho

August 19, 1916

DRAINAGE DISTRICT-STATUTORY CONSTRUCTION-CANAL COMPANY-LIABILITY OF-ASSESSMENT OF BENEFITS.

1. A canal or ditch company corporation not organized for profit and by statute exempt from general taxation is not relieved from liability for assessments for the construction of a drainage system required to protect the lands under it from becoming alkaline or water-logged, for the drainage of land where such canal or ditch company contributes by seepage or otherwise to make such drainage system necessary.

2. Held, that the assessment made by the commissioners, so far as the waste ditch is concerned, is not directly against such ditch, but against the corporation by reason of its being relieved of the necessity or burden of maintaining such waste ditch, or keeping it in repair.

3. Special benefits for which a canal or ditch company may be assessed, as distinguished from general benefits, are whatever increase the value of the land or easement or relieve it from a burden.

4. Held, that the rights of way of the respondents are easements, and it was proper for the commissioners to consider each right of way as one entire easement, and the provisions of sec. 9 (Sess. L. 1913, p. 63) do not require that each right of way or easement shall be divided up into small parcels and the assessment fixed against each parcel.

5. Held, that the question as to whether such assessments are arbitrary, unjust and void because of the amounts assessed is not before this court. The question presented is as to whether any assessment whatever against such corporation can be legally made under the facts of this case.

6. The question of the reasonableness or unreasonableness of the assessment levied against the respondents is a matter that the law has provided may be determined on the trial of the issues of fact before a jury under proper instructions, and the determination of the commissioners must be construed as prima facie correct as to the amount of such assessments until the proper court has held otherwise.

7. Held, that the word "responsible," as used in sec 9a (Sess. L. 1915, p. 124), to wit, that "such lands are responsible for damages to lower lands from seepage and saturation by irrigation water," may be construed to mean physical responsibility, whether legally liable for damages under the law or not.

8. Held, that the legislature has authority under the provisions of the constitution to provide for assessments for the construction of a drainage system in a drainage district, and make all lands or easements within such districts subject to such assessments that are physically responsible for damages that result from seepage or percolation of water from lands or canals or easements therein.

9. Where water escapes either by seepage or percolation from a ditch or canal to the injury of another, and a drainage system is necessary to protect the lower land from becoming alkaline or water-logged, proper assessments may be made against such canal or ditch to assist in the construction of a drainage system that will protect lower lands from damage because of such seepage or percolation.

[As to drainage districts, see note in Ann.Cas. 1915C, 9]

APPEAL from the District Court of the Seventh Judicial District, in and for Canyon County. Hon. Ed. L. Bryan, Judge.

Proceeding to annul or set aside assessments made by a drainage board against a canal and ditch company. Order granted to set aside such assessments. Reversed.

Reversed and remanded. Costs awarded to appellants.

Harry Kessler, for Appellants.

The assessment is not made against the waste ditch as such, but against the corporation by reason of being relieved of the necessity of maintaining the waste ditch. This is clearly a special benefit. (9 R. C. L. 564; Lipes v. Hand, 104 Ind. 503, 1 N.E. 871, 4 N.E. 160.)

The law certainly does not contemplate that each right of way or easement should be divided up into little parcels and an assessment fixed against each parcel. (Johnson Drainage Dist. No. 9 v. Hamilton, 141 Iowa 380, 118 N.W. 380.)

The determination or conclusions of drainage commissioners are considered prima facie as being reasonable and equitable, and that such conclusions shall not be set aside or be disturbed by the court in the absence of evidence disproving the correctness of such determination. (Reclamation Dist. No. 70 v. Sherman, 11 Cal.App. 399, 105 P. 277; Riverdale Reclamation Dist. No. 805 v. Shimmin, 24 Cal.App. 595, 141 P 1070; Leonard v. Arnold, 244 Ill. 429, 91 N.E. 534.)

In assessing benefits from the establishment of a drainage district, a reasonably fair apportionment of the expense is all that can be expected, and the court will not, as a rule interfere with the action of the board in making assessments unless it fairly appears that the assessment was on an erroneous basis or unjust, inequitable and out of proportion to the other assessments in the district. (Cache Drainage Dist. v. Chicago S.E. R. R. Co., 155 Ill. 398, 99 N.E. 635.)

"All lands within the reclamation district are conclusively presumed to be benefited by the improvement." (Reclamation Dist. No. 70 v. Birke, 159 Cal. 233, 113 P. 170; Nemaha Valley Drainage Dist. No. 210 v. Marconnit, 90 Neb. 514, 134 N.W. 177.)

Courts have never refused to award damages occasioned by seepage or saturation because such damages were indefinite or conjectural. (McCarty v. Boise City Canal Co., 2 Idaho 245, 10 P. 623; Arave v. Idaho Canal Co., 5 Idaho 68, 46 P. 1024; Stuart v. Noble Ditch Co., 9 Idaho 765, 76 P. 255; Verheyen v. Dewey, 27 Idaho 1, 146 P. 1116.)

With the overshadowing and perplexing problem of drainage which is now confronting every irrigated section, there is every reason for a return to the former rule of holding ditch companies to a strict degree of accountability for damages resulting from their canals. (Mallett v. Taylor, 78 Ore. 208, 152 P. 873.)

Richards & Haga, for Respondents.

The assessments levied against respondents are unconstitutional and void, because they are wholly arbitrary and unjust, out of all proportion to assessments on other lands and easements in the district, and apparently levied for the purpose of making these respondents or their shareholders pay a large proportion of the expense of draining the lands of other persons. (Reclamation Dist. No. 70 v. Sherman, 11 Cal.App. 399, 105 P. 277; Jackson v. Board, etc., 159 Iowa 673, 140 N.W. 849; Reclamation Dist. No. 108 v. Hagar, 111 U.S. 701, 4 S.Ct. 663, 28 L.Ed. 569; Mound City etc. Co. v. Miller, 170 Mo. 240, 94 Am. St. 727, 70 S.W. 721, 60 L. R. A. 190-203; Wagner v. Leser, 239 U.S. 207, 26 S.Ct. 66, 60 L.Ed. 230; Myles Salt Co. v. Board of Commissioners, 239 U.S. 478, 36 S.Ct. 204, 60 L.Ed. 392.)

Respondents are mutual co-operative irrigation companies, having no beneficial interest in these canals or rights of way, but holding the naked legal title as bare trustees for their shareholders. (Spokane Valley Land & Water Co. v. Kootenai County, 199 F. 481, 485; Hall v. Eagle Rock etc. Co., 5 Idaho 551, 51 P. 110.)

These rights of way and canals are appurtenant to the lands of the individual shareholders in respondent companies. (Humphries v. McKissick, 140 U.S. 304, 11 S.Ct. 779, 35 L.Ed. 473, 476; In re Thomas' Estate, 147 Cal. 326, 81 P. 539, 541; Combs v. Agricultural Ditch Co., 17 Colo. 146, 31 Am. St. 275, 28 P. 966; Rev. Codes, secs. 3240, 3262; Taylor v. Hulett, 15 Idaho 265, 97 P. 37, 19 L. R. A., N. S., 535, Paddock v. Clark, 22 Idaho 498, 126 P. 1053; Russell v. Irish, 20 Idaho 194, 198, 118 P. 501; Frank v. Hicks, 4 Wyo. 502, 35 P. 475, 1025.)

Being merely appurtenant to the lands of the shareholders, these rights of way and canals cannot be taxed or assessed separately therefrom, and the lands to which they are appurtenant can be assessed no further by the drainage district, because such lands are either fully assessed or not assessable. (Hale v. Jefferson County, 39 Mont. 137, 101 P. 973; Kendrick v. Twin Lakes Reservoir Co., 28 Colo. 281, 144 P. 884; 2 Page & Jones, Taxation by Assessment, secs. 665, 719; Kenny v. Kelly, 113 Cal. 364, 45 P. 699; Laws 1913, p. 63, sec. 9.)

Land or other property that will not be drained or benefited by the proposed system cannot be assessed for a share of the cost of such system. (Page & Jones, Taxation by Assessment, sec. 564; Klinger v. People ex rel. Conkle, 130 Ill. 509, 22 N.E. 600; Note to Billings Sugar Co. v. Fish, 40 Mont. 256, 20 Ann. Cas. 264, 106 P. 565, 26 L. R. A., N. S., 975; Myles Salt Co. v. Board of Commissioners, supra; Blue v. Wentz, 54 Ohio St. 247, 43 N.E. 493; Zinser v. Buena Vista Co., 137 Iowa 660, 114 N.W. 51; Mason v. Fulton County Commrs., 80 Ohio St. 151, 131 Am. St. 689, 88 N.E. 401, 24 L. R. A., N. S., 903.)

The supposed benefits on which the commissioners based their assessments are wholly speculative, conjectural and visionary, because respondents are not liable for seepage in the absence of negligence; such actions are long since barred by the statute of limitations, and both the fact and the amount of future recovery against respondents are wholly problematical. (McCarty v. Boise City Canal Co., 2 Idaho 245, 10 P. 623; Stuart v. Noble Ditch Co., 9 Idaho 765, 76 P. 255; Woodland v. Portneuf etc. Co., 26 Idaho 789, 146 P. 1106; Middlekamp v. Bessemer Irr. Ditch Co., 46 Colo. 103, 103 P. 280, 23 L. R. A., N. S., 795.)

Subn. Fifth of secs. 9 and 9a of the drainage law are unconstitutional and void, because they deny respondents due process of law and the equal...