In re Drainage District No. 3, Ada County

• Decision Date: 24 March 1927
• Citation: In re Drainage District No. 3, Ada County, 255 P. 411, 43 Idaho 803 (Idaho 1927)
• Parties: In the Matter of DRAINAGE DISTRICT No. 3, OF ADA COUNTY, IDAHO. W. T. BOOTH, J. A. GALLAHER, CAROLINE OAKES, EDWARD GREENWALT and JOHN G. BRECKENRIDGE, Appellants, v. DRAINAGE DISTRICT No. 3, C. A. GROVES, LAFE BOONE and MATT BEGLAN, Respondents
• Court: Idaho Supreme Court

255 P. 411

43 Idaho 803

In the Matter of DRAINAGE DISTRICT No. 3, OF ADA COUNTY, IDAHO. W. T. BOOTH, J. A. GALLAHER, CAROLINE OAKES, EDWARD GREENWALT and JOHN G. BRECKENRIDGE, Appellants, v. DRAINAGE DISTRICT No. 3, C. A. GROVES, LAFE BOONE and MATT BEGLAN, Respondents

Supreme Court of Idaho

March 24, 1927

DRAINAGE DISTRICTS-SPECIAL ASSESSMENTS-EASEMENTS-FEDERAL LANDS-ASSESSMENT OF BENEFITS.

1. Right of settler to receive water through a ditch, although constituting an "easement," is not an easement subject to assessment for drainage district, as contemplated by C. S., sec. 4504, requiring that assessment shall be set opposite each tract, lot, or easement; right of way being the easement to be taxed thereunder, and not easement of settler incidental thereto.

2. No assessment for drainage district can be levied against canal right of way owned by United States government, and such canal is properly excluded from district.

3. Railroad right of way, situated on land high and dry above land to be drained and in no way contributing to bogged condition, held not subject to assessment by drainage district, within C. S., sec. 4504, no direct benefit or special benefit through increase in tonnage resulting therefrom.

4. Specification of error, pointing out no particular on which alleged error is based, will not be considered by supreme court on appeal.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Raymond L. Givens, Judge.

Appeal from judgment of confirmation of drainage district proceedings. Judgment for defendants. Affirmed.

Judgment affirmed. Costs to respondent. Petition for rehearing denied.

J. B Eldridge, for Appellants.

The commissioners are authorized to assess benefits against a "tract, lot or easement" and also authorized to assess benefits against a "municipality or corporation" should the same derive a public or special benefit from any part of the work. (C. S., sec. 4504, subd 5; In re Drainage Dist. No. 1, 29 Idaho 377, 161 P 315.)

"A property right to the use of water from an irrigation ditch acquired or reserved under contract constitutes an easement in the ditch." (People ex rel. Standart v. Farmers' High Line S. Canal & Resev. Co., 25 Colo. 202, 54 P. 626; Nampa-Meridian Irr. Dist. v. Gess, 17 Idaho 552, 556, 106 P. 993; Murphy v. Kerr, 296 F. 536; Henrici v. South Feather Land & Water Co., 177 Cal. 442, 170 P. 1135; Stanislaus Water Co. v. Bachman, 152 Cal. 716, 93 P. 858, 15 L. R. A., N. S., 359; Bolles v. Pecos Irr. Co., 23 N.M. 32, 167 P. 280.)

A water right is real estate. (Gard v. Thompson, 21 Idaho 485, 123 P. 497; Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 P. 81; Nampa-Meridian Irr. Dist. v. Briggs, 27 Idaho 84, 147 P. 75.)

It is also appurtenant to land. (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; Medford Irr. Dist. v. Hill, 96 Ore. 649, 190 P. 957.)

No stipulation of the parties who appeared in the cause, and no judgment based upon such stipulation, as between them, could be binding upon the other land owners in the district, who did not appear, if no such notice as required by law was given.

Persons not joining in the stipulation cannot be bound by it even if attorneys had authority to make it. (Kneeland v. Luce, 141 U.S. 437, 12 S.Ct. 39, 35 L.Ed. 808; Western Lunatic Asylum v. Miller, 29 W.Va. 326, 6 Am. St. 644, 1 S.E. 740.)

The following drainage cases, under statutes similar, hold that railroad rights of way are assessable: Chicago & N.W. R. R. Co. v. Board of Supervisors, 171 Iowa 741, 153 N.W. 110; Drainage District v. Chicago B. & Q. R. R. Co., 96 Neb. 1, 146 N.W. 1055; Forest v. Atlantic Coast Line R. R. Co. , 159 N.C. 547, 75 S.E. 796; Milne v. McKinnon, 32 S.D. 627, 144 N.W. 117; Northern Pacific R. R. Co. v. Richland County, 28 N.D. 172, Ann. Cas. 1916E, 574, 148 N.W. 545, L. R. A. 1915A, 129.

In Oregon Short Line R. Co. v. Pioneer Irr. Dist., 16 Idaho 578, 102 P. 904, the railroad right of way was held subject to assessments for benefits in an irrigation district. Under the express terms of C. S., sec. 4504, corporations may be assessed. (In re Drainage Dist. No. 1, 29 Idaho 377, 161 P. 315.)

Omitting lands that should have been assessed renders whole assessments void. (Spring Creek Drain. Dist. v. Elgin R. Co., 249 Ill. 260, 94 N.E. 529; People v. Cole, 128 Ill. 158, 21 N.E. 6; Gilkerson v. Scott, 76 Ill. 509; Nevins & Otter Creek Township Draining Co. v. Alkire, 36 Ind. 189; Freeman v. Thimbe, 21 N.D. 1, 129 N.W. 83; Fraser v. Mulany, 129 Wis. 377, 109 N.W. 139.)

This court in the case of Burt v. Farmers' Co-op. Irr. Dist., 30 Idaho 752, 168 P. 1078, held that C. S., sec. 4506, includes easements and rights of way, and said section must be construed with subd. 5, sec. 4504, to the end that corporations as well as easements may be assessed.

P. E. Cavaney, for Respondents.

A mere statement that the trial court erred without pointing out specifically where the court erred cannot be considered. ( Abernathy v. Peterson, 38 Idaho 727, 225 P. 132; Hill v. Porter, 38 Idaho 574, 223 P. 538; Bain v. Olsen, 39 Idaho 170, 226 P. 668.)

There is no assignment of error that the evidence in this record does not support the findings and judgment of the trial court. (Choate v. North Fork Highway Dist., 39 Idaho 483, 228 P. 885; Keltner v. Bundy, 40 Idaho 402, 233 P. 516.)

The district could not legally have included the New York Canal right of way and assess the United States for same, for the reason that said property belonged to the United States and would not be subject to assessment without statutory authority or by an act of Congress. (State v. Johnson, 111 Minn. 255, 126 N.W. 1074; In re Drainage Dist. No. 5, 39 Idaho 477, p. 480, 228 P. 881; State ex rel. Latimer v. Henry, 28 Wash. 38, 68 P. 368.)

Railroad right of way is not subject to assessment. (C. S., secs. 4504, 4506.)

Assessments are against the property and not against the person. (C. S., sec. 4505; Elliott v. McCrea, 23 Idaho 524, 130 P. 785; Burt v. Farmers' Co-op. Irr. Co., 30 Idaho 752, 168 P. 1078.)

The benefits that may be assessed are limited, specific and defined. (In re Drainage Dist. No. 1, 29 Idaho 377, 161 P. 315, 321.)

"The commissioners are enjoined by the statute to assess against each tract, lot or easement of high land its proportion of the estimated costs of the works in accordance with its proportion of responsibility for damage to low lands of the district by seepage irrigation water." (Drainage Dist. No. 2 v. Extension Ditch Co., 32 Idaho 314, 182 P. 847, 850.)

"Special benefits for which a land owner may be assessed as distinguished from general benefits for which he may not be assessed are whatever increases the value of the land, relieve it from a burden, or make it specially adapted to a purpose which enhances its value." (In re Drainage Dist. No. 1, supra.)

Even a general benefit cannot be sustained where the assessment is discriminatory and inequal. (Browning v. Hooper, 269 U.S. 396, 46 S.Ct. 25, 70 L.Ed. 330; Myles Salt Co. v. Board of Comm., 239 U.S. 478, 36 S.Ct. 204, 60 L.Ed. 392; Thomas v. Kansas City So. Ry. Co., 261 U.S. 481, 43 S.Ct. 440, 67 L.Ed. 759; Northern P. Ry. Co. v. Walla Walla County, 116 Wash. 684, 200 P. 585, 597.)

Remonstrants cannot complain of the stipulation of counsel for the district affecting the Oregon Short Line and the Artesian Water Company, for the reason that the effect of said stipulation in no way affects the rights of remonstrants. ( Sny Island Levee Dr. Dist. v. Shaw, 252 Ill. 142, 96 N.E. 984; Iroquois Drainage Dist. v. Harrison, 222 Ill. 489, 78 N.E. 780; Sacramento Co. Rec. Dist. No. 3 v. Goldman (Cal.), 4 P. 676; Payne v. Ward, 28 Cal.App. 553, 153 P. 462; White v. Papillion Dr. Dist., 96 Neb. 241, 147 N.W. 218; O'Brien v. Schneider, 88 Neb. 479, 129 N.W. 1002; 229 U.S. 629, 33 S.Ct. 774, 57 L.Ed. 1358.)

Counsel was within his rights to stipulate the matters contended in the stipulation complained of. (McLean v. Truckee-Carson Irr. Dist. (Nev.), 245 P. 285; Drainage Dist. No. 2 v. Extension Ditch Co., 32 Idaho 314, 182 P. 847.)

The commissioners had a right under the law in this state to exclude the Oregon Short Line Railroad right of way, and this fact would not be ground for setting aside the organization of the district. (Barnes v. Divernon, 123 Ill.App. 621; Mackey v. Hancock Co., 137 Iowa 88, 114 N.W. 552; 19 C. J., sec. 16, and cases cited in notes.)

T. BAILEY LEE, J. Wm. E. Lee, C. J., and Budge and Taylor, JJ., concur.

OPINION

T. BAILEY LEE, J.

Certain settlers filed with the court their petition praying the organization of Drainage District No. 3 in Ada county. Appellants protested, and the court made a temporary order organizing the district and excluding from the territory as proposed the New York Canal. Ultimately, the commissioners filed their report to which appellants filed an original and later an amended remonstrance. The issues were tried, and on July 8, 1924, the court rendered its order and judgment confirming such report and finally organizing the district. Remonstrants have appealed from said order and judgment "confirming the report of the commissioners of Drainage District No. 3, and organizing the same, and confirming the assessments therein made and provided, and rendered judgment and made its order aforesaid in favor of said defendants and against said remonstrants and plaintiffs herein, and from the whole of said order and judgment:" Errors assigned are: (1) The court erred in excluding the New York Canal and all of the interests therein in the temporary order organizing the district; (2) the court erred in holding and deciding that the water rights and interests of the...