In re Gallatin Irrigation Dist.

• Decision Date: 10 March 1914
• Parties: IN RE GALLATIN IRRIGATION DIST.
• Court: Montana Supreme Court

48 Mont. 605

IN RE GALLATIN IRRIGATION DIST.

Supreme Court of Montana.

March 10, 1914.

Appeal from District Court, Gallatin County; Albert P. Stark, Judge.

Petition for the establishment and organization of an irrigation district in Gallatin county, to be known as the Gallatin Irrigation District. From an order dismissing the petition at the cost of the petitioners, they appeal. Modified and affirmed.

H. D. Kremer and Hartman & Hartman, all of Bozeman, for appellants.

John T. Smith & Son, of Livingston, and Ike E. O. Pace, of Whitehall, for respondents.

HOLLOWAY, J.

On January 27, 1913, there was filed with the clerk of the district court of Gallatin county a petition for the creation of an irrigation district under the provisions of chapter 146, Laws 1909. The petition suggests a name for the proposed district, describes by government subdivisions all lands sought to be included, gives the names of all holders of title or evidence of title and the post office addresses of all who are nonresidents, describes the source of intended water supply and the means of irrigation, and concludes with a prayer for appropriate relief. A map showing the proposed district and irrigation system accompanied the petition, and a sufficient bond, duly approved, was furnished. An order was made fixing a time and place for hearing; the statutory notice was given, and proof of service made. Before the hearing a protest in writing on behalf of 27 of the owners named in the petition, and 8 others, was filed, objecting to the petition and to the organization of the district upon some 12 grounds, among which are: That certain petitioners are not the owners or holders of title, or evidence of title, to any lands in the proposed district, and that “a majority in number of the holders of title or evidence of title to lands susceptible of irrigation from the same alleged general source and by the same general system of works have not signed the petition herein, nor proposed the establishment and organization of said system.”

At the hearing, counsel for the petitioners moved to amend by adding to the petition the names of 3 other qualified petitioners and the description of certain land. The motion was denied pro forma, with leave to renew it; but counsel did not avail themselves of the privilege extended. The petitioners also moved to further amend by striking from the petition the names of Nancy L. Woodward, executrix, and “Garnett Bros.,” and the descriptions of all lands accredited to these parties in the petition. This motion was denied, the court assigning as its reason that “it appears upon the face of the petition that these persons are the owners of lands susceptible of irrigation from the same general source, and included within the boundaries of the proposed district.” The court then proceeded to ascertain whether the petition was in fact signed by a majority of the holders of title or evidence of title to the lands described therein, and upon such hearing it was made to appear that 2 of the signers are homestead entrymen, and a third is a desert entryman, no one of whom has made final proof; that “Garnett Bros.” consists of J. E. (or Edwin) Garnett, Frank Garnett, and Addie Garnett, and that Nancy L. Woodward is the executrix of the last will of A. J. Woodward, deceased; that the estate is in process of administration in the district court of Gallatin county; that the heirs at law of A. J. Woodward are Nancy L., the surviving widow, and seven children; that certain lands are entered upon the assessment roll to “Garnett Bros.,” but the records indicate that the ownership is in the three Garnetts named; that portions of the Woodward lands are assessed to “A. J. Woodward,” and the records of the state land office disclose that they were purchased from the state by “Nancy L. Woodward, Adm'r.” Upon this showing the district court entered an order dismissing the petition at the cost of the petitioners. The appeal is from that order.

The avowed purpose of chapter 146, above, is to provide for the creation, organization, and management of irrigation districts. When one of these districts is created, it becomes a public corporation, with certain enumerated powers, among which are to procure an irrigation system by purchase or construction, and to pay for the same and for the upkeep or running expenses. The management is vested in a board of three commissioners appointed for their initial term by the court, and elected thereafter annually by the landowners of the district who are qualified electors under the act. Upon this board are conferred very extensive powers. The members are allowed compensation for their services, are permitted to employ clerical help, engineers, common laborers, and others, at the expense of the district, to incur indebtedness, to purchase property, etc. The apparent theory of the statute is the naked right of the majority to rule. It requires a majority of the landowners (using the term “landowners” herein to indicate the holders of title or evidence of title), who also own a majority of the acreage, to initiate the movement for the creation of one of these districts; but a bare majority may succeed in having a district created over the protest and objection of the minority. While there is an initial limit of $10,000 placed upon the power of the board to incur indebtedness for a water system and to charge the district therefor, the written consent of a bare majority of the landowners who own a majority of the acres in the district removes that limitation. Under the act as it stood at the time this proceeding was instituted, the board could incur an indebtedness against the district to the extent of $5,000 in any one year. Under the amendment made to section 38 by the Legislature in 1913 (Laws 1913, c. 127), a much wider latitude is allowed. Section 19 prescribes the qualifications of district voters. Neither the nonresident landowner nor the resident landowner who does not possess the qualifications of an elector at our general state or school elections has any voice whatever in the management or control of a district after it is organized.

These observations upon the general character of the legislation are made to indicate the extent to which all the proceedings as against a minority landowner are in invitum, and the...