Knowles v. New Sweden Irrigation District
| Decision Date | 10 April 1909 |
| Parties | HENRY S. KNOWLES, Appellant, v. NEW SWEDEN IRRIGATION DISTRICT, Respondent |
| Court | Idaho Supreme Court |
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APPEAL from the District Court of the Fifth Judicial District for Bannock County. Hon. Alfred Budge, Judge.
Action against an irrigation district to recover certain assessments alleged to have been paid under protest. Judgment for the defendant. On rehearing, affirmed.
Judgment of the district court affirmed, with costs of this appeal in favor of respondent.
W. H. Wilkins, for Appellant.
A party has the right to recover back illegal assessments paid under coercion. (25 Am. & Eng. Ency. of Law, 2d ed., 1240; Bank of Santa Rosa v. Chalfant, 52 Cal. 170; Bank of Mendocino v. Chalfant, 51 Cal. 369; Armstrong v. Ogden City, 12 Utah 476, 43 P. 121; Gill v. City of Oakland, 124 Cal. 335, 57 P. 152.)
O. E. McCutcheon and Wyman & Wyman, for Respondent.
Plaintiff and his grantor waited until the district was organized and in full operation. His remedy in case of any injury was damages and not injunction. (Penn. Ins. Co. v. Heiss, 141 Ill. 35, 33 Am. St. 273, 31 N.E. 138; Somer v. Metropolitan E. R. R., 129 N.Y. 576, 29 N.E. 802, 14 L. R. A. 344; Kaufman v. Tacoma etc. R. R. Co., 11 Wash. 632, 40 P. 137; Silsby v. Tacoma R. R. Co., 6 Wash. 295, 32 P. 1067; State v. Superior Court, 26 Wash. 278, 66 P. 385; Wichita & W. R. Co. v. Fechheimer, 36 Kan. 45, 12 P. 362; McAulay v. Western Vermont R. R. Co., 33 Vt. 311, 78 Am. Dec. 627; Griffin v. Shreveport R. R. Co., 41 La.Ann. 808, 6 So. 624; Ohio River R. Co., v. Ward, 35 W.Va. 481, 14 S.E. 142; Churchill v. Beethe, 48 Neb. 87, 66 N.W. 992, 35 L. R. A. 442.)
An assessment of benefits is ipso facto an equalization. It cannot be otherwise. No one can complain of being assessed the amount he is benefited. No one can complain of being assessed like all others in the same class, and certainly the plaintiff is in the same class as all other owners of water rights.
It would have been impracticable to condemn all these deeded water rights. (City of South Pasadena v. Land & Water Co., 152 Cal. 579, 93 P. 490.)
Hugh E. McElroy, appearing amicus curiae on rehearing.
The authorities clearly hold that the only jurisdictional defect that can be considered collaterally is lack of jurisdiction of the subject matter. In other words, where the assessment is absolutely void and the court has jurisdiction to review the assessment and confirms it, the assessment is good and cannot be attacked collaterally. (City of Duluth v. Dibblee, 62 Minn. 18, 63 N.W. 1117; Hause v. City of St. Paul, 94 Minn. 117, 102 N.W. 221; Hamilton's Law of Special Assessments, sec. 633.)
"The city council has jurisdiction to determine the question of benefits, as well as the regularity and validity of the assessment; and, where the proceedings are regular, and due notice given, the confirmation of the assessment by the council is final." (Wright Seminary v. Tacoma, 23 Wash. 109, 62 P. 444; New Whatcom v. Bellingham Bay Imp. Co., 18 Wash. 181, 51 P. 360.)
Where the property is situated within the territorial boundaries and the council or board are authorized to assess benefits, and the formalities prescribed by law have been complied with and a benefit assessed, the assessment cannot be collaterally attacked. (Stoddard v. Johnson, 75 Ind. 20; Ricketts v. Spraker, 77 Ind. 371; De Puy v. City of Wabash, 133 Ind. 336, 32 N.E. 1016; Boyce v. Tuhey, 163 Ind. 202, 70 N.E. 531; Hammond v. People, 169 Ill. 552, 48 N.E. 573.)
A rehearing was granted in this case, and counsel have not only argued the case orally, but have filed briefs covering every phase and point in the case. The main question urged on the rehearing is that the power having been granted by the legislature to organize irrigation districts and to levy special assessments, and that power having been duly exercised in the manner prescribed by the statute, and all acts in relation thereto as well as the action of the district in voting bonds, having been confirmed and approved by the district court, the particular assessments here involved are now res adjudicata, and cannot be considered or reviewed in this case, as this is a collateral attack upon the judgment of a court of general jurisdiction.
Our former decision was based upon the theory that as the plaintiff owned his own water right by and through said water deed, the irrigation district could not confer any benefits so far as his land was concerned, and that because of the inability of the irrigation district to confer any benefits, there was a lack of jurisdiction to levy said assessments. And the court virtually held that to permit the irrigation district to assess the land of the plaintiff as it had done would be a violation or abrogation of the plaintiff's contract rights under his said deed.
This is an action to recover back money alleged to have been paid as assessments, and paid under protest, and to restrain further assessments, and plaintiff prays that his right to 215 inches of water be declared valid and that the title to the same be quieted in him.
The following facts appear from the record: That on September 10, 1892, one Scott, who owned certain land in Bingham county, being the land now owned by appellant and referred to in the complaint, purchased from the Great Western Canal Construction Company for the consideration of $ 1800 and certain other valuable considerations, a water right of 215 inches, which right was conveyed by said canal company by deed dated September 10, 1892. Said deed contained, among others, the following provisions: "Said second party also hereby further covenants and agrees to pay to said party of the first part, its successors or assigns, in addition to the consideration hereinafter agreed to be paid, an annual rental for the use of water from said canal on said land for irrigation as aforesaid, one dollar per acre for all crops and trees for the number of acres of said land actually irrigated in that year." The said Great Western Canal Construction Company operated said canal until the year 1895, and then sold its right in said canal to the Great Western Canal and Improvement Company. On March 1, 1900, the last-named company sold and conveyed all its right, title and interest in and to said canal and water rights to the New Sweden Irrigation District, an irrigation district organized under the laws of the state of Idaho, the respondent in this action, in consideration of $ 65,000 in six per cent interest-bearing bonds of said district. It also appears that the proceedings for the organization of the New Sweden Irrigation District and the issue and disposition of said bonds were ratified, approved and confirmed by the district court of the sixth judicial district in and for Bingham county, on December 11, 1900; that respondent took possession of the Great Western canal on March 1, 1900, and has ever since managed and operated the same and has each year delivered water therefrom for the irrigation of the lands of said district, including the lands of plaintiff.
The trial court found that every year since 1892, the several parties so managed and operated said canal, including the respondent, have delivered to the several occupants of the land of plaintiff, including the plaintiff, for the irrigation of said lands, the full amount of water called for by the said deed to Scott. The court also found that in the year 1900, and each and every year thereafter, the respondent had caused to be made regular assessments upon all the lands of said district, including the lands of the appellant, and made an assessment-roll for the years 1900, 1901, 1902, 1903. Said lands for the years 1900 and 1901 belonged to and were assessed to one John Brand, who was the grantee and successor of said Scott and was the immediate grantor and predecessor of plaintiff. For the years 1902 and 1903, said lands were assessed to the plaintiff. The appellant purchased said lands from said Brand on December 12, 1901. Brand did not pay the assessments for 1900 and 1901. It also appears that the consideration which the appellant paid Brand for said land was $ 4,250, and that the appellant deducted from said consideration a sufficient sum to pay off and discharge the assessments for 1900 and 1901, and thereafter paid said assessments, and also paid the assessments for 1902 and 1903 before they became due. He paid such assessments under protest, and it appears that the ground of protest in each case was, in substance, that because of rights under said water deed, as the grantee and successor in interest of said Scott, his land could not be lawfully assessed by the respondent irrigation district for any purpose whatever except for appellant's fair share of the cost of maintaining said canal, said grounds being alleged in the complaint.
The trial court found that said assessments for said years were legal and valid, and that the money so paid could not be recovered back by the appellant, and entered judgment accordingly. From that judgment this appeal was taken. The case was submitted to this court on printed briefs and oral argument and our decision was to the effect that the judgment of the lower court must be reversed. A petition for a rehearing was granted and additional briefs were filed by respective counsel and the cause was orally argued by them.
On the argument on rehearing, it was most earnestly contended by counsel for respondent that this action in no manner involved the question of the abrogation of contract rights;...
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On Rehearing
... ... Supreme Court of Idaho April 10, 1909 ... IRRIGATION ... DISTRICTS-CONFIRMATION OF ORGANIZATION-BOARD OF DIRECTORS ... 1. An ... irrigation district organized under the provisions of the ... irrigation district act of 1899 ... interest in and to said canal and water rights to the New ... Sweden Irrigation District, an irrigation district organized ... under the laws ... ...