In re Greybull Valley Irrigation

• Decision Date: 25 February 1936
• Docket Number: 1964
• Citation: 49 Wyo. 395,54 P.2d 808
• Parties: IN RE GREYBULL VALLEY IRRIGATION; DISTRICT, DONOVAN ET AL., v. OWEN, ET AL COM'RS. OF IRR. DIST.,
• Court: Wyoming Supreme Court

54 P.2d 808

49 Wyo. 395

IN RE GREYBULL VALLEY IRRIGATION; DISTRICT, DONOVAN ET AL.,

COM'RS. OF IRR. DIST., v. OWEN, ET AL

No. 1964

Supreme Court of Wyoming

February 25, 1936

APPEAL FROM the District Court, Big Horn County; C. D. MURANE Judge.

Proceedings by M. J. Donovan and others, Commissioners of the Greybull Valley Irrigation District, for change of assessments against lands therein, approval of petitioners' contract with the Federal Emergency Administration of Public Works for construction of district irrigation works with funds loaned and granted by the United States, and authorization of bonds as provided in such contract. From an order changing the assessments and authorizing the commissioners to enter into such contract, Frank E. Owen and others, objectors, appeal.

Order appealed from reversed, and proceeding remanded to district court.

For the appellants there was a brief by Milward L. Simpson of Cody and Harry B. Henderson, Jr. of Cheyenne and oral arguments by Messrs. Simpson and Henderson.

The Greybull Valley Irrigation District was formed July 23, 1920. The Order of Confirmation fixing assessments and authorizing the issuance of bonds was entered under date of June 21 1921. Practically nothing was done for a period of twelve years, during which time the attorney for the respondents sought to bring about the dissolution of the District. On April 11, 1935, the Commissioners, without notice or vote of members, entered into a loan and grant agreement with the Public Works Administrator, and thereafter applied for a court order for an increase in the amount of assessments. Prior to trial, a large number of withdrawals of lands from the District was permitted, all of which increased the burdens of those remaining in the District. There is nothing in Section 701 of Chapter 122 that authorizes the building of a concrete dam outside the boundaries of the District, at a cost of many times more than the cost of the irrigation work originally contemplated. The Commissioners have not complied with Sections 701, 703, 713, 749 of Article 7, Chapter 122 W. R. S. 1931. Most of the authorities hold that an election is necessary on any proposed bond issue. District v Tregea, (Cal.) 26 P. 237; Fallbrook District v. Abila, (Cal.) 37 P. 793. Our statute contemplates an election both as to bond issue (Chapter 713, Chapter 122) and as to contracts with the United States Government on which the bonds are to be sold. The landowner must be afforded due process of law. Wiel, 2d Ed., 649; 67 C. J. 1345. The Courts endeavor to place on statutes such construction as will not produce injustice or absurd results. Huber v. Thomas, (Wyo.) 19 P.2d 1042; Selby v. Irrigation District, (Cal.) 35 P.2d 125; Woodruff v. Perry, (Cal.) 37 P. 526; Tregea v. Owens, (Cal.) 29 P. 643; Baxter v. Irrigation District, 68 P. 601. The procedure followed by the district impairs the obligation of a contract. Bank v. Irrigation Dist., (Cal.) 77 P. 937; Irrigation Company v. Public Service Commission, 192 P. 832. The district is without power to incur debt without following the statutes. 67 C. J. 1317; District v. Tregea, supra, Heffner v. Krinn, (Ohio) 120 N.E. 221; Hopping v. City, (Cal.) 150 P. 977. The notice attempted did not comply with the statute. Secs. 1058 and 1059, Chapter 89, R. S. 1931; Hay v. Hudson, 31 Wyo. 150. The order of the court below should be reversed. Respondents seek to modify an order of the court of June 21, 1921, by a proceeding dated April 25, 1935, which is clearly barred by the provisions of Article 23, Chapter 89, W. R. S. Proceedings to modify an order must be commenced, at the latest, within three years after rendition. Secs. 89-2302-2310, R. S. 1931. Sioux Seed Company v. Montgomery, 42 Wyo. 170; Shaul v. C. F. & I. Company, 46 Wyo. 549; Midwest Company v. George, 44 Wyo. 25; Boulter v. Cook, 32 Wyo. 461. This is a special proceeding. Luman v. Hill, 36 Wyo. 427; Edwards v. City of Cheyenne, 19 Wyo. 110. The contract is not binding on the government and is invalid because the district officers were not authorized to make it; it was executed under the provisions of the National Industrial Recovery Act, which has been held unconstitutional. Schecheter Poultry Corporation v. United States, 55 S.Ct. 852, Panama Refining Company, 79 L.Ed. 223. The amount of the grant is indefinite; no provision is made in the contract or the law for the use of certificates of indebtedness. It is not a contract where both parties are bound. Phillips v. Hamilton, 17 Wyo. 41; Massion v. Mt. Sinai, 40 Wyo. 297; Williston on Contracts, Volume II, Sec. 875. The judgment is not supported by the findings or evidence. Bancroft's Code Pleading, Vol. 1, p. 35. No judgment can stand when it is based on facts not pleaded or findings not justified by the evidence. Sabas v. Gregory, (Conn.) 98 A. 293; Crawford v. Cassity, (Okla.) 190 P. 412; Kingsbury v. Christy, (Ariz.) 192 P. 1114; Mfg. Company v. Combs, (Mo.) 229 S.W. 1072; Schuster Bros. v. Davis, (Iowa) 170 N.W. 292; Chicago R. R. v. Collins, (Ind.) 142 N.E. 634; Hjorth Oil Company v. Curtis, 25 Wyo. 1; Corporation v. Credit Company, 41 Wyo. 198.

For the respondents, there was a brief and oral argument by Ernest J. Goppert of Cody.

The proposal to construct a reservoir with its appurtenant supply canal and diversion dam in the Upper Sunshine Basin is not a new project. The only things that are new are the facts that the District has found a new purchaser for its proposed bond issue; that the bonds will be issued at four per cent interest instead of six per cent interest; that the maturity dates of the principal installments thereof will cover a period of 27 years instead of 15 years, and that the district is to receive an outright grant to cover 30 per cent of material and labor costs in construction. The increase in construction cost necessitates an increased assessment from thirty-three and one-third per cent to forty-two per cent of the assessment benefits last approved, against the lands included within respondent district. The proceedings to modify and amend its assessments and authorize the issuance of bonds were in accord with the law of the state. The district is a public corporation. Sullivan v. Blakesley, 35 Wyo. 73. It was authorized and empowered to improve the water supply for lands within said district. The Irrigation District Law does not require an election concerning these matters. District v. Browne, 13 P. 921; 67 C. J. 1646; 122-721, R. S.; Sullivan v. Blakesley, supra. The proceedings taken were constitutional and legal. Sullivan v. Blakesley, supra; in re Organization of Bench Canal District, 24 Wyo. 142. Many cases hold that constructive notice is all that is required in proceedings of this nature. 67 C. J. 1303; Knowles v. District, (Idaho) 101 P. 81; Hanson v. District, (Wash.) 134 P. 1083; Smith v. District, 156 P. 1133; In re Ft. Shaw Irrigation District, 261 P. 962; Lent v. Tilson, 14 P. 71; Bass v. City of Casper, (Wyo.) 205 P. 1008. The appeal taken here is frivolous and taken for the benefit of delay only. Appellants have abandoned all but three of their specifications of error and violate Rule 14 of this court, by failing to set out a statement of the points and authorities relied upon, and also by failing to refer specifically to the page or portion of the record where the question under discussion arises. The irrigation works may be constructed under this procedure, at an actual cost of less than one-half of that authorized by the order of June 21, 1921. The procedure fixed by statute has been followed in this case, and the order authorizing the district to proceed with construction and issue its bonds was made after reasonable notice to the landowners.

A supplemental brief was filed by appellants out of time and should be stricken. Robertson v. Shorow, 69 P. 1; Lawer Auto Supply v. Teton Auto Company, 43 Wyo. 349; Bishop v. Bramblette, 42 Wyo. 405. This proceeding is not barred by the provisions of Article 23, Chapter 89, R. S. 1931. The question of the validity of the proposed contract between the United States and the Irrigation District is not in issue. The judgment of the trial court is in accord with the prayer of petitioners and is supported by the findings and evidence. The record discloses that out of approximately 800 landowners within the district, only 40 are objecting, representing approximately five per cent of the total lands assessed. What was said by this court in Bass v. City of Casper, supra, is applicable to the construction of irrigation works and improvements within an irrigation district. Appellants have not pointed out any specification of error to which their arguments apply. The order should be sustained.

KIMBALL, Chief Justice. BLUME and RINER, JJ., concur.

OPINION

KIMBALL, Chief Justice.

The appeal is by 44 owners of lands in the Greybull Valley Irrigation District who challenge an order of the district court of Big Horn County changing assessments previously made against the lands in the district and authorizing the commissioners of the district to enter into a contract with the Federal Emergency Administration of Public Works for the construction of the district irrigation works with funds loaned and granted by the United States. The case has been before the court on preliminary motions, 52 P.2d 410.

The commissioners of the district initiated the proceeding by filing a petition which shows the following facts: The district was organized in 1920 under an act of that year which with some amendments is now sections 122-701 to 122-756, R. S. 1931. The commissioners' report, as contemplated by section 122-714, filed in May, 1921, showed that the district contained 85,119 acres of land of which 57,560 acres were irrigable; that the total of the...