Indian Cove Irr. Dist. v. Prideaux

• Decision Date: 11 November 1913
• Citation: 25 Idaho 112,136 P. 618
• Parties: INDIAN COVE IRRIGATION DISTRICT, a Public Corporation, and GEORGE W. SMITH, Appellants, v. MARION H. PRIDEAUX, Respondent
• Court: Idaho Supreme Court

136 P. 618

25 Idaho 112

INDIAN COVE IRRIGATION DISTRICT, a Public Corporation, and GEORGE W. SMITH, Appellants, v. MARION H. PRIDEAUX, Respondent

Supreme Court of Idaho

November 11, 1913

IRRIGATION DISTRICT-LANDS INCLUDED IN-GOVERNMENT LAND-ENTRYMEN-HOLDER OF RECEIPT-CONSTRUCTION OF STATUTE.

1. Under the provisions of the irrigation district laws of this state (Rev. Codes, sec. 2372 et seq.), agricultural lands that have been entered under any of the land laws of Congress may be included in an irrigation district.

2. A homestead or desert land entry is the initial step taken in the United States land office by the claimant toward acquiring ownership under the homestead or desert land laws and precedes the performance on the part of the claimant of the conditions required by the law.

3. Held, that it was the intention of the legislature in enacting the irrigation district law to include the receipt of a register of the United States land office as evidence of title sufficient to serve the purpose of the act so far as title is concerned, and to authorize the inclusion of the lands so entered in an irrigation district and authorize the apportionment of benefits to such land.

4. The inclusion of such lands within an irrigation district and the apportionment of benefits thereto cannot interfere with the disposal of such lands by the government.

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

Action for approval and confirmation by the district court of the proceedings of the board of county commissioners declaring the legality of the organization of the Indian Cove Irrigation District and of the issuance and sale of certain bonds. Judgment affirming such proceedings but excluding certain lands from said district. Judgment reversed as to the exclusion of such lands.

Modified and reversed. Cause remanded. Costs awarded to appellants.

Richards & Haga and McKeen F. Morrow, for Appellant, Indian Cove Irrigation District.

The decision of the trial court is directly contrary to the decision of this court in Gem Irr. Dist. v. Johnson, 18 Idaho 386, 109 P. 845.

The word "entryman," as used in the irrigation district law, is used in the sense it is used in common parlance, and the technical definition of the term is in fact the same as it is commonly understood. In Webster's Dictionary the word is defined as "one who goes upon public land with intent to secure an allotment under the homestead, mining or other law." (McCune v. Essig, 118 F. 273, 276.)

Irrigation districts are public corporations, though not strictly municipal in the sense of exercising governmental functions other than those connected with raising revenue to defray the expense of constructing and operating the irrigation system. (Fallbrook Irr. Dist. v. Bradley, 164 U.S. 112, 17 S.Ct. 56, 41 L.Ed. 369; Pioneer Irr. Dist. v Walker, 20 Idaho 605, 119 P. 304; In re Bonds of Madera Irr. Dist., 92 Cal. 296, 27 Am. St. 106, 28 P. 272, 675.)

One of the essential attributes of a public corporation as distinguished from the private corporation is that membership in the former is involuntary and based upon some geographical or similar classification, while membership in the latter is based upon consent. (Morawetz, Private Corp., 2d ed., sec. 3; Thompson on Corp., sec. 21; McKin v. Odon, 3 Bland (Md.), 407; Washington Home v. Chicago, 157 Ill. 414, 41 N.E. 897, 29 L. R. A. 798.)

The discretion vested in the board of county commissioners as to what lands shall be included in an irrigation district is not subject to review by the courts, and clearly not when the evidence is conclusive and both the board of county commissioners and the court find that the lands included in the district will be benefited thereby, and that they are susceptible "of one mode of irrigation from a common source and by the same system of works." (In re Bonds of Madera Irr. Dist., supra; Herring v. Modesto Irr Dist., 95 F. 705; 3 Kinney, Irrigation and Water Rights, p. 2547; Cullen v. Glendora Water Co., 113 Cal. 503, 39 P. 769, 45 P. 822, 1047; Board of Directors of Modesto Irr. Dist. v. Tregea, 88 Cal. 334, 26 P. 237; 40 Cyc. 819, 820; State v. Several Parcels of Land, 80 Neb. 424, 114 N.W. 283; Andrews v. Lillian Irr. Dist., 66 Neb. 458, 92 N.W. 612, 97 N.W. 336.)

As soon as final certificate issues, and possibly as soon as the entryman has become entitled to final certificate, he has the whole beneficial interest in the land if it may be taxed regardless of the fact that the government may, for good cause, eventually refuse to issue patent. (Carroll v. Safford, 3 How. (U. S.) 441, 11 L.Ed. 671.)

"Under the statutes of this territory in force in 1881, possessory claims are taxable." (Cramer v. Walker, 23 Idaho 495, 130 P. 1002.)

The right of the territory of Idaho to tax possessory claims, notwithstanding the restriction in the organic act of the territory against taxing property of the United States, was upheld in Quivey v. Lawrence, 1 Idaho 313, and People v. Owyhee Mining Co., 1 Idaho 409.

In California there has never been any statutory exemption of such possessory rights, and the courts have uniformly upheld their taxation regardless of whether the possessory interest involved consisted of mining claims, town lots, or preemption or other agricultural entries under the public land laws. (State v. Moore, 12 Cal. 56, 14 Morr. Min. Rep. 110; People ex rel. McCullough v. Shearer, 30 Cal. 645. See, also, Elder v. Wood, 208 U.S. 226, 28 S.Ct. 263, 52 L.Ed. 464; Maish v. Pima Co. (Ariz.), 37 P. 370; Maish v. Arizona, 164 U.S. 599, 17 S.Ct. 193, 41 L.Ed. 567; Baltimore Ship Bldg. etc. Co. v. Baltimore, 195 U.S. 375, 25 S.Ct. 50, 49 L.Ed. 242; Forbes v. Gracey, 94 U.S. 762, 24 L.Ed. 313, 14 Morr. Min. Rep. 183; Central P. R. R. Co. v. Nevada, 162 U.S. 512, 525, 16 S.Ct. 885, 40 L.Ed. 1057, 1061; People v. Black Diamond Co., 37 Cal. 54, 14 Morr. Min. Rep. 162; Hale & Norcross Co. v. Storey Co., 1 Nev. 104, 14 Morr. Min. Rep. 115; People v. Frisbie, 31 Cal. 146; People v. Cohen, 31 Cal. 210; Bakersfield & Fresno Oil Co. v. Kern Co., 144 Cal. 152, 77 P. 892; Gwynne v. Niswanger, 15 Ohio 367; Ross v. Board of Supervisors, 12 Wis. 26; People v. Donnelly, 58 Cal. 144; Cobban v. Meagher, 42 Mont. 399, 113 P. 290; Topeka Com. Security Co. v. McPherson (Okl.), 52 P. 395.)

The California code expressly provides for the collection of taxes in cases where the individual only has a right to the possession, like that of a desert or homestead entryman, by the seizure and sale of the personalty and improvements of the entryman. (Pol. Code, secs. 3617, 3820, 3821; Bakersfield etc. Oil Co. v. Kern County, 144 Cal. 152, 77 P. 892; San Diego v. Linda Vista Irr. Dist., 108 Cal. 189, 41 P. 291, 35 L. R. A. 33.)

F. W. Ebbert, for Appellant G. W. Smith.

Whether the lands having the evidence of title required by the statute are "susceptible of one mode of irrigation from a common source and by the same system of works" is the one question submitted for determination to the board of county commissioners by the statute. It is wholly a question of fact and not of law, and being so, the determination of the fact is final and conclusive, especially as it must be ratified by a vote of the electors in the proposed district before the district can be organized. (40 Cyc. 820; O. S. L. R. Co. v. Pioneer Irr. Dist., 95 F. 705; Central Irr. Dist. v. De Lappe, 79 Cal. 351, 21 P. 825; Fallbrook Irr. Dist. v. Bradley, 164 U.S. 112, 17 S.Ct. 56, 41 L.Ed. 369.)

Thompson & Buckner, Amici Curiae.

An irrigation district is a governmental agency of the state created for an express purpose, to wit: To reclaim arid lands. (Lincoln & Dawson Co. Irr. Dist. v. McNeill, 60 Neb. 613, 83 N.W. 847; Board v. Collins, 46 Neb. 411, 64 N.W. 1086; Wiel on Water Rights, sec. 1356.)

The irrigation district is a quasi-municipal corporation organized for the specific purpose of providing ways and means of irrigating lands within the district. (Colburn v. Wilson, 23 Idaho 337, 130 P. 381; Pioneer Irr. Dist. v. Walker, 20 Idaho 605, 119 P. 304; Fallbrook Irr. Dist. v. Bradley, 164 U.S. 112, 17 S.Ct. 56, 41 L.Ed. 369.)

Irrigation districts organized under the laws of this state are involuntary corporations. (Rood v. Claypool Drainage & Levee Dists., 120 F. 207, 56 C. C. A. 527.)

D. A. Dunning and R. C. Taylor, for Respondent.

The object of the proceeding is to confirm the organization of the district and all other matters affecting the validity of the bonds, so that it may be finally and conclusively determined, which neither he nor his successors in interest can question, whether such bonds are legal and valid or not. (Board of Directors of Modesto Irr. Dist. v. Trega, 88 Cal. 334, 26 P. 237.)

Respondent cannot subsequently raise the question here involved. (People v. Selma Irr. Dist., 98 Cal. 206, 32 P. 1047; Quint v. Hoffman, 103 Cal. 506, 37 P. 514, 777.)

Such an attack cannot be made in an action to recover possession of land sold for nonpayment of irrigation taxes or assessment. (Burdin v. Washington etc. Assn., 41 Wash. 395, 83 P. 773.)

The sale of bonds cannot be enjoined by the land owner who did not appear at the confirmation proceedings. (Crall v. Poso Irr. Dist., 87 Cal. 140, 26 P. 797.)

Even the state itself could not thereafter question the validity of the organization of such district if quo warranto proceedings were brought. (People v. Linda Vista Irr. Dist., 128 Cal. 477, 6 P. 86; Progressive Irr. Dist. v. Anderson, 19 Idaho 504, 114 P. 16.)

If the validity of the bonds is confirmed in this proceeding respondent cannot thereafter raise any question affecting the legality or validity of the bonds. (Nampa-Meridian Irr. Dist. v. Brose, 11 Idaho 474, 83 P. 499...