Leland v. Twin Falls Canal Co., 5572

• Decision Date: 19 October 1931
• Docket Number: 5572
• Citation: 3 P.2d 1105,51 Idaho 204
• Parties: MABEL ANNA LELAND, Administratrix of the Estate of E. S. LELAND, Deceased, Respondent, v. TWIN FALLS CANAL COMPANY, a Corporation, and W. R. HATFIELD and EMMA L. WICK, as President and Secretary, Respectively, of Said TWIN FALLS CANAL COMPANY, Appellants
• Court: Idaho Supreme Court

3 P.2d 1105

51 Idaho 204

MABEL ANNA LELAND, Administratrix of the Estate of E. S. LELAND, Deceased, Respondent, v. TWIN FALLS CANAL COMPANY, a Corporation, and W. R. HATFIELD and EMMA L. WICK, as President and Secretary, Respectively, of Said TWIN FALLS CANAL COMPANY, Appellants

No. 5572

Supreme Court of Idaho

October 19, 1931

MANDAMUS-RIGHTS OF THIRD PARTIES-WATER AND WATERCOURSES-WATER RIGHTS APPURTENANCY OF-APPEAL AND ERROR-CERTIFICATE OF TRIAL JUDGE-COURT RULES.

1. Court must treat petition for reconsideration filed before judgment as being in nature of motion, and decree was tantamount to order denying motion.

2. Without judge's certificate that application and affidavit were used in denying petition or motion, supreme court cannot assume that judge considered affidavit, or considered merely affidavit, precluding review (C. S., sec 7164; supreme court rule 24).

3. That nonparties have legal controversies or rights concerning subject matter which may be affected by judgment precludes mandamus.

4. Under statutes, contracts, and Carey Act Company certificate pursuant thereto, company sells and settler buys water right dedicated to his land (C. S., sec. 3018).

5. Carey Act Company certificate represents water right sold to and beneficially owned by, settler (C. S., sec. 3018).

6. Under Carey Act Company certificate, water right is appurtenant to and part of land to which it was dedicated unless shown to be separated (C. S., sec. 3018).

7. Where canal company's assignee claimed to hold water certificate to secure purchase price of water right, lien on land and water right asserted under contract held not subject to foreclosure by pledge sale (C. S., sec. 3018).

8. That water right appurtenant to land may be transferred to other lands does not make it independent entity or chattel (C. S., sec. 3018).

9. Under statute, lien affecting realty claimed under pledge sale of water certificate held conclusively presumed to be paid (C. S., sec. 3018; Sess. Laws 1929, chap. 56).

APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. Hugh A. Baker, Judge.

From a judgment granting a peremptory writ of mandate, defendants appeal. Affirmed.

Writ of mandate sustained. Costs to the respondent.

James R. Bothwell, for Appellants.

In mandamus proceedings third persons claiming an adverse interest in the subject matter of the proceeding which may be affected by the judgment must be made parties without regard to the validity of their claims, which will not be adjudicated in their absence; and the omission of such a party in a petition for mandamus, the omission appearing upon the face of the record, requires the supreme court to reverse a judgment awarding the writ. (Stethem v. Skinner, 11 Idaho 374, 82 P. 451; Orange Grocery Co. v. Leverett, (Tex. Civ. App.) 282 S.W. 625; O'Keefe v. Robison, 116 Tex. 398, 292 S.W. 854; State v. Wolfe, 58 Fla. 523, 50 So. 511; State v. Johnson, 111 Minn. 10, 126 N.W. 479; Morton v. Bales, 233 N.Y.S. 540; Powell v. People, 214 Ill. 475, 105 Am. St. 117, 73 N.E. 795; C. S., secs. 6657, 7272; 47 C. J., p. 124, sec. 232.)

Bissell & Bird, for Respondent.

Having attempted to sell the certificate at pledge sale (of course respondent urges that any lien against such a certificate could not be enforced at pledge sale) without serving demand and notice upon the successor in interest of the pledgor, Milner acquired no greater title than the pledgee theretofore had, because the sale was invalid and contrary to the laws: (49 C. J. 1013; Springhorn v. Roberts, 77 Mont. 395, 250 P. 1112; Williams v. Ashe, 111 Cal. 180, 43 P. 595.)

MCNAUGHTON, J. Lee, C. J., and Budge, Givens and Varian, JJ., concur.

OPINION

MCNAUGHTON, J.

This is an action in mandamus wherein the plaintiff, now respondent, sought and procured a writ of mandate against the Twin Falls Canal Company and its officers, commanding them to issue to respondent a water certificate for forty shares of the stock of the company, as appurtenant to the NE. 1/4 of Sec. 26, Twp. 9 South, R. 14 East, Twin Falls county, and formerly represented by certificate No. 5604.

From the record here it appears that in a previous case wherein Luigi Mendini and wife were plaintiffs, and Twin Falls Canal Company, Salina S. Milner, J. J. Rugg, and unknown owners were defendants, and Mary S. Rutt intervenor, the court decreed Luigi Mendini and Rosa Mendini to be the owners of the forty-acre tract, "together with appurtenances, including certificate No. 5604 issued by the Twin Falls Canal Company for forty shares of water in such company." It was further adjudged and decreed "that the action of the intervenor, Mary S. Rutt, as set out in her complaint in intervention and amendment to complaint in intervention, is barred by the statute of limitations." It was further adjudged and decreed that the Twin Falls Canal Company, a corporation, and J. J. Rugg have no estate, lien or interest in or to above-described lands and appurtenant water and water certificate. The judgment was on appeal affirmed. ( Mendini v. Milner, 47 Idaho 439, 276 P. 313.)

On September 20, 1927, by warranty deed, Luigi Mendini and Rosa Mendini granted said land, its appurtenances and this water right, to E. S. Leland. Thereafter, on demand made upon the Canal Company by plaintiff to deliver its certificate representing this water and stock, it refused to do so.

From the return it appears that at the time of the trial of the action referred to, Mary S. Rutt, as assignee of the Twin Falls Canal Company, held the water contract and claimed to hold certificate No. 5604 as security for the purchase price of the water right and claimed a lien against it under the water contract. Notwithstanding, she, as well as the other parties to the action, and the court in the Mendini suit, treated certificate No. 5604 as evidencing a water right originally dedicated to the NE. 1/4 of the NE. 1/4 of Sec. 26, Twp. 9 South, R. 14 East, yet, subsequent to the entry of judgment in that suit barring her action, she attempted to foreclose the lien as a pledge of personal property. H. O. Milner purchased it at this pledge sale, and upon presenting the old certificate No. 5604 to the officers of the Twin Falls Canal Company, a new certificate, No. 10939A was issued to him. After setting forth these allegations, the company prays that the plaintiff take nothing in this cause, and that an order be made bringing in H. O. Milner as an additional necessary party.

After the return day and after the matter had been submitted, and after a letter announcing the court's conclusions had been addressed to the attorneys, but before judgment was entered, a petition for reconsideration was filed, setting forth that Jess O. Eastman owned a quarter interest in this certificate and ten acres of land to which it was appurtenant.

The petition for reconsideration, made after the hearing, must be treated in the nature of a motion, but it was not a motion for a new trial, and the decree which was finally entered in this case must be considered as an order denying that motion. There is no certificate of the trial judge, certifying that the application and affidavit of Jess O. Eastman were submitted to the judge and by him used before entering the judgment which denies the application, as affording a record for review of that phase of the case. (C. S., sec. 7164; Dudacek v. Vaught, 28 Idaho 442, 154 P. 995.) In the absence of such a certificate, we cannot assume that the court, in passing upon the petition, considered the affidavit of Jess O. Eastman, or that Eastman's affidavit was the only showing considered. In this state of the record we cannot review the ruling on the petition for reconsideration. (Supreme Court Rule No. 24; Douglas v. Kenney, 40 Idaho 412, 233 P. 874.)However, in passing, it may be observed that from the uncertified papers that we have, it appears that Eastman was not made a party because it was agreed between him and Leland that the suit should be brought in the name of the latter on behalf of both.

Reverting to the merits: It is the rule in this state that mandamus will not issue when it appears that third persons, not parties to the proceedings, have real legal controversies or rights relating to the subject matter which may be affected by the judgment. (Lewis v. Mountain Home Co-op. Irr. Co., 28 Idaho 682, 156 P. 419; Stethem v. Skinner, 11 Idaho 374; 82 P. 451; Stoner v. Carter, 48 Idaho 745, 285 P. 470.) By their specifications of error appellants claim the case is within that rule.

The case of the Canal Company as we understand it is based upon the theory that all that is conveyed by the so called Carey Act Company water contract is corporate stock in the Canal Company; that the water right dedicated by that contract to the NE. 1/4 of the NE. 1/4 of Sec. 26, Twp. 9 South, R. 14 East, and used by the settler upon that land was not in this case nor is it in any case sold to the settler and released from the capital assets of the company. It is therefore claimed that the water right, though real property, is not a complement to land but belongs to the corporation independently from land and the res sold in the water contract and represented by the certificate issued is capital stock in the company and nothing more, and is a proper subject of pledge sale.

The respondent's case is that the water right dedicated to and used upon the NE. 1/4 of the NE. 1/4 of Sec. 26, Twp. 9 South, R. 14 East, pursuant to the water contract was dedicated and sold by the Canal Company to the owner of the land and is real property in individual ownership; that the certificate is a muniment of that ownership and is not subject to pledge sale as personalty.

To determine this issue we...