Jackson v. Indian Creek Reservoir Ditch & Irrigation Co., Ltd.

Decision Date30 April 1909
PartiesMAY McELROY JACKSON, Plaintiff and Appellant, v. INDIAN CREEK RESERVOIR DITCH AND IRRIGATION CO., LTD., Defendant and Appellant
CourtIdaho Supreme Court

CONTRACTS FOR FURNISHING WATER-VALIDITY-CONSTRUCTION.

1. Sec 6, art. 15 of the constitution of this state authorizes the legislature to provide by law the manner in which reasonable maximum rates may be established to be charged for the use of water sold, rented or distributed for any useful or beneficial purpose.

2. An act of the legislature which provides that the annual maintenance charge for the use of water sold, rented or distributed may be fixed by contract, is fully authorized by this section of the constitution.

3. Rev Codes, sec. 3288, clearly authorizes parties to contract with reference to the delivery of water from a reservoir or canal and to fix and determine the amount to be charged as an annual maintenance fee therefor.

4. A contract for the sale of a water right by an irrigation company, containing, as one of the conditions of such sale, a provision that in case of any casual, unforeseen or unavoidable accident which shall cut off or diminish the supply of water, or if the volume of water proves insufficient from drought or from any other cause beyond the control of the company, the second party shall be content with his pro rata share of water which the company may have and the company shall not be liable for the shortage or deficiency, and shall have a right to distribute such water as may flow through the canal or from the reservoir to the holders of such water rights pro rata, places all persons holding such contracts upon an equality as to the right to water when there is a shortage, and denies to any of such persons a prior or superior right over any other person holding a like contract.

5. Under a contract for the sale of water, which contains the conditions referred to in paragraph 4, it is error for the court to decree to a user of water a prior right over other users under similar contracts.

6. In an action brought by a user of water against an irrigation company, based upon a contract made between such company and such user, in which such user seeks to have his rights to the use of water determined in accordance with said contract, it is error for the trial court to render a decree in favor of such user, as an appropriator and user of water, not based upon such contract.

7. Where contracts made between an irrigation company and users of water from such system provide that in case of shortage the persons holding such contracts should receive only their pro rata share of such water, in a controversy between the company and a user under such contract, the court should decree to such user, in case there is a shortage, only his pro rata share of such water.

(Syllabus by the court.)

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Fremont Wood, Judge.

An action to establish plaintiff's right to the use of water under a contract made with the defendant. Judgment establishing such right. Both plaintiff and defendant appeal. Reversed.

Reversed.

Karl Paine, for Plaintiff and Appellant.

Hawley, Puckett & Hawley, for Defendant and Appellant.

Counsel cite no authorities on points decided.

STEWART, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

STEWART, J.

This action was brought by plaintiff against the defendant for the purpose of determining her right to the use of sixty inches of water from what is known as Indian creek reservoir, owned by the defendant corporation. The plaintiff in her complaint claims to be the owner of sixty inches of water under and by virtue of a contract dated March 22, 1895, entered into between the plaintiff and the Orchard Irrigation Co. which formerly owned the reservoir from which plaintiff receives water. The plaintiff also claims that her right to such water is prior in time to that of the defendant. The defendant admits the making of said contract and that plaintiff is entitled to fifty inches and no more of the waters from said reservoir, and denies her prior right thereto.

Upon the issues thus made, the cause was tried by the court and findings of fact and conclusions of law made and judgment entered in accordance therewith. Both plaintiff and defendant moved for a new trial and the motions were overruled; and both appeal from the orders and the judgment.

The plaintiff contends that the court erred in holding that part of the contract, which fixed the maintenance fee for such water at ten cents an inch, unconstitutional and void; while counsel for defendant contend that the court was correct in holding such part of said contract void and fixing the rate at a reasonable sum, and alleges that the court erred in awarding to plaintiff sixty inches of water instead of fifty, and in awarding plaintiff a prior right to the use of such water.

Upon the record in this case, the first question for consideration and determination is the effect of the contract of March 22, 1895.

It appears from the evidence that C. H. Jackson, the husband of plaintiff, was managing the affairs of the Orchard Irrigation Company at the time the contract was made with plaintiff on March 22, 1895; that plaintiff paid as a consideration for such contract and her rights thereunder $ 1200; that C. H. Jackson was one of the principal owners of the Orchard Irrigation Company; that the reservoir was estimated to water about 8,400 acres, and that in disposing of this water to different parties it was expected to put all on equality and pro-rate the water in case of shortage; that all of the contracts of the company provided for pro-rating of the water; that a number of other parties commenced the actual use of water from the reservoir; some under partial payments and some under entire payments; that about 1900 or 1901 the predecessor in interest of the defendant made default in its taxes, and also permitted judgment to be obtained against it under which judgment the reservoir and canal system were sold, and in default of taxes the lands then owned by the company were sold; that in 1901 the company practically ceased to operate said canal system and the owners of lands, which had previously been watered therefrom and which were under contract for water in the future, ceased using water upon their lands and the company ceased to operate and maintain the reservoir and canal; that from 1901 to 1907 the plaintiff's lands were all the land that was irrigated from said reservoir and by the use of the canals used in connection therewith; that during this time the plaintiff used said reservoir and canal system as her own, taking water when needed, using as much as she could secure or deemed necessary, and in fact took the same liberties with the use of said reservoir and canals as though she had been the sole owner thereof. When we say "plaintiff" in this connection, we mean the plaintiff acting through her husband, who had charge of and control of the lands irrigated. During this time no one was paying for the water.

The defendant acquired title to the reservoir in controversy and certain lands, through execution sale of the reservoir and ditches, and tax sales of the reservoir, ditches and lands. The contract made between the plaintiff and the Orchard Irrigation Co. was placed upon record in Ada county, where said property is located, on April 8, 1895, and prior to the time that defendant and its predecessors in interest acquired any interest in and to said property.

The court, among other things, found: (1) The making of said contract as alleged and admitted by the pleadings; (2) that the Orchard Irrigation Co. was organized for the purpose of constructing said reservoir and ditch and selling water and water rights; that it appropriated certain public waters of the state and contracted with divers persons besides plaintiff to furnish them water for irrigation and domestic use; that at the time such contracts were made, the said Orchard Irrigation Co. believed that the waters appropriated by it were ample to fill the reservoir and supply such persons with sufficient water; that the water so appropriated and impounded proved to be insufficient in dry seasons to supply any of the purchasers with water except the plaintiff; (3) that the agreement entered into between the plaintiff and the Orchard Irrigation Co. was void under the constitution of this state, in so far as it fixes the annual maintenance charge at ten cents per miner's inch; that plaintiff, by reason of user and said agreement, is entitled to a first and prior right to the use of sufficient water to properly irrigate her lands, and that the defendant is entitled to charge and receive therefor an annual maintenance charge; that the plaintiff has never promised and agreed to pay for the irrigation of her lands $ 2 an inch, and that a reasonable maintenance charge for the use of said water is $ 1.75 an inch.

As conclusions of law, the court found, among other things, first, that the plaintiff requires a continuous flow of sixty inches of water during each irrigation season; second, that the agreement involved in the pleadings is unconstitutional in so far as it fixes the annual maintenance charge at ten cents a miner's inch; third, that by reason of user and said agreement, plaintiff is entitled to a decree adjudging her to be the owner of a first and prior right to the use of sufficient water from said reservoir to properly irrigate her lands.

This contract, in so far as it is involved in ...

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