Knowles v. New Sweden Irrigation District

• Decision Date: 08 June 1908
• Citation: Knowles v. New Sweden Irrigation District, 16 Idaho 217, 101 P. 81 (Idaho 1908)
• Parties: HENRY S. KNOWLES, Appellant, v. NEW SWEDEN IRRIGATION DISTRICT, Respondent
• Court: Idaho Supreme Court

101 P. 81

16 Idaho 217

HENRY S. KNOWLES, Appellant, v. NEW SWEDEN IRRIGATION DISTRICT, Respondent

Supreme Court of Idaho

June 8, 1908

IRRIGATION DISTRICTS-POWER AND AUTHORITY TO LEVY ASSESSMENTS-JURISDICTION TO LEVY ASSESSMENTS-RIGHT AND POWER OF CONDEMNATION-TAKING PROPERTY WITHOUT COMPENSATION OR DUE PROCESS OF LAW-ADMISSIONS MADE IN PLEADINGS-UNLAWFUL ASSESSMENTS PAID FOR USE OF ANOTHER-INJUNCTION.

1. An irrigation district organized under the provisions of the irrigation district act of the legislature of 1899 (Sess Laws 1899, p. 408) has no power, authority or jurisdiction to levy and collect assessments against lands within the district for which the owners already own and possess water rights and privileges, until such time as the district first purchases or condemns such water rights.

2. Before an irrigation district organized under the statutes of this state can acquire jurisdiction to levy special assessments against any particular tract of land within the district for the purpose of purchasing or constructing an irrigation system, it must appear that by reason of such construction or purchase the district is going to be in a position to render benefits of some character, kind or nature, to the particular tract of land on which it seeks to levy its assessments. Jurisdiction in such cases to levy special assessments is dependent upon the power and ability of the corporation to confer benefits to some extent and in some measure, and an absolute inability to confer any benefits implies and signifies a lack of jurisdiction to levy such assessments.

3. A corporation, whether private or public, that purchases water rights, ditches and a canal system, must necessarily take them subject to all the duties and burdens of which it has notice, that existed against the grantor.

4. Where a land owner had purchased from a canal company a water right entitling him to the annual and perpetual use of sufficient water for the irrigation of his farm, and for the use of which it was stipulated he should only be charged a specified and fixed sum per acre annually for the number of acres irrigated, he cannot thereafter be deprived of such right without just compensation by reason of the organization of an irrigation district and the canal company selling its system and water rights to the district.

5. A right acquired by a land owner by purchase from a canal company, entitling the land owner to sufficient water for the irrigation of his farm upon the payment of a fixed and specified annual rental per acre, is a property right, and the levying of an assessment by the district against such land for the purpose of purchasing the water system and canals, without first purchasing or condemning his right amounts to the taking of his property without just compensation in violation of sec. 14 of art. 1 of the constitution.

6. Any destruction, interruption or deprivation of the usual and ordinary use of property amounts to a taking of the same both without compensation and without due process of law, in violation of the constitutional guaranty.

7. A clear distinction exists and should be drawn between the rights that a party acquires by contract with a canal company, whereby he purchases a water right and privileges sufficient for the irrigation of his land upon the payment of a fixed and specified annual rental, and the rights acquired on the other hand, under sec. 4 of art. 15 of the constitution, whereby arises and attaches a perpetual dedication of waters to the lands upon which they have been once applied on payment of the annual rental charges therefor, as the same may be fixed in accordance with law.

8. Although a water right purchased by a land owner from a canal company should be condemned by the district, such condemnation would not interfere with or interrupt the dedication already effected under the provisions of sec. 4 of art. 15 of the constitution, but in the latter event the land owner would be required to pay such charges as might be established in conformity with law.

9. Admissions made in pleadings on which the trial is had are solemn admissions in the case in which they are made, and are not required to be supported by evidence on the part of the adverse party. Such admissions are taken as true against the party making them, without further proof or controversy. On the other hand, under the provisions of sec 4217, Rev. Stat., the plaintiff is deemed to have denied any and all allegations of new matter contained in the answer, but such statutory denials do not impose upon the plaintiff the necessity of proving any such allegations, in the event he desires to rely on or avail himself of any admissions therein contained.

10. One who pays, under protest, unlawful assessments made against another, and out of the moneys of such other party held for the purpose of such payment, cannot thereafter recover the same in an action instituted for that purpose. He will be deemed to have no interest therein or cause of action therefor.

(Syllabus by the court.)

APPEAL from the District Court of the Fifth Judicial District, for the County of Bannock. Hon. Alfred Budge, Judge.

Action by the plaintiff to quiet his title to certain water rights and privileges, and to enjoin and restrain the defendant from levying and collecting certain assessments against his lands, and to recover assessments paid under protest. Judgment for the defendant and plaintiff appeals. Reversed.

Reversed and remanded with direction. Costs awarded in favor of appellant.

Merriman & Wilkins, for Appellant.

The contention of the defendant that the statute invests it with the power to "levy an assessment," on any other basis that that of benefits to the owner of the land, is utterly baseless, as such provision, if one existed, would be in violation of our constitution (art. 1, sec. 14; art. 15, sec. 4) as well as of the constitution of the United States. (Norwood v. Baker, 172 U.S. 286, 19 S.Ct. 187, 43 L.Ed. 450; Thomas v. Gain, 35 Mich. 155, 24 Am. Rep. 535; In re Canal Street, 11 Wend. 156; State v. Mayor etc. of Hoboken, 36 N.J.L. 293; Tidewater Co. v. Coster, 18 N.J. Eq. 527, 528, 90 Am. Dec. 634; Dillon on Mun. Corp., 3d ed., sec. 761; Bloomington v. Latham, 142 Ill. 462, 32 N.E. 509, 18 L. R. A. 487; Allen v. Drew, 44 Vt. 174; Forster v. Scott, 136 N.Y. 577, 32 N.E. 977, 18 L. R. A. 543; Fay v. City of Springfield, 94 F. 421; Charles v. City of Marion, 100 F. 524.)

"There can be no justification for any proceeding which charges the land with an assessment greater than the benefits; it is a plain case of appropriating private property to public uses without compensation." (Cooley on Taxation, 2d ed., p. 661; People v. Houston, 54 Cal. 536.) The assessments in question were not made on the basis of benefits and are therefore illegal. (City of South Pasadena v. Pasadena L. & W. Co., 152 Cal. 579, 93 P. 494; Nampa Irr. Dist. v. Brose, 11 Idaho 487, 83 P. 499.)

A local assessment may so transcend the limits of equality and reason that its exaction would cease to be a tax or contribution to a common burden and become extortion and confiscation. In that case it would be the duty of the court to protect the citizen from robbery under color of a better name. (Bloomington v. Latham, supra; Allen v. Drew, 44 Vt. 174.)

"The legislature cannot pass any law that will put it into the power of an irrigating company to control and manage the waters of any part of the territory regardless of the rights of parties." (Munroe v. Ivie, 2 Utah 535; Forster v. Scott, 136 N.Y. 577, 32 N.E. 977, 18 L. R. A. 543; Hard v. Boise, 9 Idaho 589, 76 P. 331, 65 L. R. A. 407; Beveridge v. Lewis, 137 Cal. 619, 92 Am. St. 188, 67 P. 1041, 70 P. 1083, 59 L. R. A. 581.)

"An agreement by plaintiff's predecessor in interest giving to defendant an interest in the ditch for the purpose of using the waters thereof to irrigate his lands on a sufficient consideration is binding upon both the party making the agreement and those holding or claiming to hold under it." (Feeney v. Chester, 7 Idaho 324, 63 P. 193.)

"A ditch company diverting water for general purposes of irrigation cannot by its by-laws, rules or regulations exempt itself from the operation of the constitution in respect to priority of appropriation." (Combs v. Agricultural Ditch Co., 17 Colo. 146, 31 Am. St. 275, 28 P. 966.) "The constitution making water a public use does not grant power to appropriate water for the use of the public without compensation." (People v. Elk River Mill. Co., 107 Cal. 221, 48 Am. St. 125, 40 P. 531.) Property owners cannot be deprived of water rights without being paid therefor. (Wilterding v. Green, 4 Idaho 773, 45 P. 135; Sess. Laws 1903, p. 242; 179, secs. 42, 43; Const., art. 1, sec. 14.)

"Property is taken within the meaning of the constitution after an ordinance to that effect is passed and an assessment has been made. A physical taking is not required." (McMicken v. City of Cincinnati, 4 Ohio St. 394; Peregoy v. Sellick, 79 Cal. 568, 21 P. 966; In re Rogers Ave., 22 N.Y.S. 27, 29 Abb. N. C. 361; Pompelley v. Green Bay M. Canal Co., 13 Wall. 166, 20 L.Ed. 557; Foster v. Scott, 136 N.Y. 577, 32 N.E. 977, 18 L. R. A. 543; 15 Cyc. 652, 653, and citations.)

"Defendant is bound by the allegations in his answer." (Cyc. of Pl & Pr., 915, sec. d.) "Admissions made in pleadings bind the party in the suit in which they are filed, and even in certain subsequent suits." (1 Am. & Eng. Ency. of Law, 719, 720; 1 Words and Phrases, 205; Bourn v. Dowdell (Cal.), 50 P. 695; State v. Thum, 6 Idaho 331, 55 P. 858; Bloomingdale v. Du Rell, 1 Idaho 40.) An admission in pleadings dispenses with proof and is equivalent to proof. (Connecticut Hospital v. Town of Brookfield, 69 Conn. 1, 36 A. 1017.) ...