Jackson v. Bonneville Irr. Dist.

• Decision Date: 16 November 1925
• Docket Number: 4195
• Citation: 243 P. 107,66 Utah 404
• Court: Utah Supreme Court
• Parties: JACKSON et al. v. BONNEVILLE IRR. DIST

243 P. 107

66 Utah 404

JACKSON et al. v. BONNEVILLE IRR. DIST

No. 4195

Supreme Court of Utah

November 16, 1925

Rehearing Denied February 2, 1926.

Appeal from District Court, Second District, Davis County; George S Barker, Judge.

Action by John Jackson and others against the Bonneville Irrigation District. Judgment for defendant, and plaintiffs appeal.

REVERSED, and remanded for new trial, with directions.

Oscar W. Moyle and Harry W. Rudine, both of Salt Lake City, for appellants.

Evans &amp Sullivan and Holmgren, Anderson & Russell, all of Salt Lake City, for respondent.

THURMAN, J. GIDEON, C. J., and FRICK, CHERRY, and STRAUP, JJ., concur.

OPINION

THURMAN, J.

This is an action to quiet title to divers parcels of land in Davis county, Utah. The plaintiffs are the owners of the lands in severalty, and allege in their complaint that defendant claims some interest therein adverse to the plaintiffs, but that said claim is without foundation. The complaint is in the usual form in an action to quiet title. Defendant, by its answer, admits that plaintiffs are the owners of the land, but alleges that defendant is an irrigation district organized in pursuance of the provisions of chapter 68, Sess. Laws Utah 1919, and that its only claim of interest in the lands is the right to levy and collect taxes on the same on account of the water allotments thereon. The answer of defendant is voluminous and sets forth the various steps taken in organizing the district from the time of filing the petition, as provided in section 2 of the act referred to, down to the confirmation and approval thereof by decree of the district court of Davis county. The provisions of the statute appear to have been substantially complied with and properly interpreted, except as hereinafter stated. The answer alleges that the lands of plaintiffs are included in the district; that water has been allotted thereon; and that they are subject to assessment for revenue for all the lawful purposes of the district, including the payment of principal and interest on bonds authorized by the district, as provided by law.

The decree of the district court approving and confirming the organization of the district and the proceedings of the board of directors is relied on by defendant as an adjudication of all the questions in controversy in the instant case.

Replying to the allegations of defendant's answer, plaintiffs challenge the validity of the allotments of water made to their lands, and allege that said lands were and are sufficiently supplied with water for irrigation and other purposes from other and independent sources, and that additional water cannot be beneficially used thereon. They allege, by way of estoppel, that, as soon as they learned that water had been allotted to their lands by the board of directors of the district, they consulted the defendant, its officers, attorney, and engineer, and were assured by them that, if water was allotted to land that did not need water or upon which water could not be beneficially used, the mistake would be corrected and the allotments annulled; that, relying upon said promises, plaintiffs were led to believe it was not necessary to make any protests or objections to any of the proceedings, other than to request the defendant to cancel said allotments.

The trial court found the issues in favor of the defendant, but also found that at the time of the organization of the district, and for many years prior thereto, plaintiffs' said land had been fully supplied with water and the means of conveying and distributing the same, and that no water supplied by the defendant could be beneficially used thereon. Judgment for defendant was entered on the findings.

Plaintiffs appeal and assign numerous errors, some of which challenge the jurisdiction of the board in making the allotments; others assign as error the rejection of evidence offered by plaintiffs and the order denying plaintiffs' motion for a new trail.

This proceeding on the part of plaintiffs is a collateral attack upon the decree of the district court approving and confirming the organization of the district and the proceedings of its board of directors. If the board acted within its jurisdiction in doing the things complained of, any errors it may have made cannot be corrected in the manner attempted here. This is elementary and conceded by plaintiffs.

Whether or not the board acted within its jurisdiction in allotting water to plaintiffs' land can only be determined by referring to the statute, in pursuance of which the district was organized. The statute is too voluminous to quote from, at any considerable length. It is necessary, however, to state briefly the substance of its most important features as relates to the organization of the district and the allotment of water.

The statute, c. 68, supra, states the purpose of the act to be:

"Conserving and putting to beneficial use the public waters of the state and preventing undue waste thereof."

The Governor, upon the recommendation of the state engineer, or 50 or a majority of owners of lands or holders of title or evidence of title to lands requiring water in any district, may propose the organization. Lands having sufficient water are exempt from the operation of the act. The petition for organization must be filed with the board of county commissioners of the county which embraces the largest acreage of the proposed district. The matter required to be stated in the petition is clearly defined by the statute. When the petition is filed with the county board the board must send a certified copy to the state engineer, with the request that a water survey and allotment be made. The state engineer must thereupon cause a water survey to be made of all the lands within the district for the purpose of determining and allotting the maximum amounts of water which could be beneficially used on the lands. Each 40-acre tract must be separately surveyed and allotment made therefor. On completion of the survey and allotment the state engineer must file with the board of county commissioners his return of survey and report of allotment. The county commissioners shall then cause notice to be published to the effect that a petition for organizing an irrigation district has been filed, water survey and allotment made, and a date set for hearing of applications for exclusion and inclusion of lands and revision of allotments. The statute provides the method of publication. The county commissioners shall, upon the date set, proceed to determine, list, and plat the lands to be included in said proposed district, from the petition and from such applications for exclusion of lands therefrom and the inclusion of lands therein as may be made in accordance with the intent of the act. The commissioners shall, by final order duly entered, determine and plat the lands included in such proposed district and list the lands included therein with the allotment of water made. The order of the commissioners shall not exempt any land that may be benefited by the proposed system, nor shall it include any lands that will not be benefited by the proposed water supply. Lands not appearing on the plat of the proposed district may also be included upon application of the owners.

After the lands included in the district have been tested and platted, as above stated, and the name of the district designated, the commissioners shall, by order duly entered, call an election of the land owners of said district to be held for the purpose of determining whether or not said district shall be organized. By such order the commissioners shall submit the names of one or more persons from each of the divisions of said district, as provided in the statute, to be voted for as directors of said district. The notice for the election must be published as provided in the act. At all elections held under the provisions of the act all persons to whom water has been allotted are entitled to vote. The form of ballot is designated and each voter is entitled to cast one vote for each acre-foot of water or fraction thereof allotted to said voter's land. If, upon the canvass of the votes by the commissioners for organization of the district and election of directors, it appears that a majority have voted for organization, the commissioners shall make an order declaring the district duly organized and shall declare the persons receiving respectively the highest number of votes for such several offices to be duly elected to such offices. The commissioners shall cause a copy of such order, including a list and plat of the lands of the district with water allotment, to be immediately filed for record in the office of the county clerk of the county in which the petition is filed, and a certified copy thereof with the county recorder first determined the amount of water required for the land within in each county in which any portion of such lands are situated. The board of directors of said district shall then qualify as provided by law and enter upon their duties as directors of said district. The statute then provides for subsequent elections and qualification of officers.

The district having been declared duly organized and the first officers elected and qualified, as above stated, the next step in the proceeding is of such importance under the issues presented as to justify quoting the following excerpt from section 11 of the act:

"Upon the completion of the organization of the district and before any bond issue, or contract is voted on, any assessment levied, or toll or charge imposed, the board of directors having the district and the amount of water available for the use of the district, shall make a final allotment of water for each fort-acre tract...