Lewis v. Mountain Home Co-op. Irr. Co.

• Decision Date: 11 March 1916
• Citation: 28 Idaho 682,156 P. 419
• Parties: WILLIAM LEWIS, Administrator of the Estate of I. T. LEWIS, Deceased, and G. W. LAMSON, Appellants, v. MOUNTAIN HOME CO-OPERATIVE IRRIGATION COMPANY, a Corporation, Respondent
• Court: Idaho Supreme Court

156 P. 419

28 Idaho 682

WILLIAM LEWIS, Administrator of the Estate of I. T. LEWIS, Deceased, and G. W. LAMSON, Appellants, v. MOUNTAIN HOME CO-OPERATIVE IRRIGATION COMPANY, a Corporation, Respondent

Supreme Court of Idaho

March 11, 1916

MISJOINDER OF CAUSES OF ACTION - MANDATE TO COMPEL DELIVERY OF WATER - PLEADING - NECESSARY AVERMENTS - PROOF - WATER RIGHTS-NECESSITY FOR USE-ADEQUATE REMEDY AT LAW.

1. Application for writ of mandate is a special proceeding under the code and may not be united in the same complaint with an action to quiet title or with one for injunctive relief.

2. Before a writ of mandamus will be granted by the court, and the defendant ordered to furnish the water demanded, the affidavit therefor should allege and the proofs show: First that the duty is imposed on the defendant to furnish the water; second, that the plaintiff has the right to demand the performance of that duty and to be furnished with water third, that a legal demand has been made, accompanied with a payment or a tender of the established rates; fourth, that the defendant has the water under its control which it can furnish the plaintiff without impairing the rights of others previously entitled to the same; and fifth, that the plaintiff has no plain, speedy and adequate remedy at law.

3. Plaintiffs applied for writ of mandate to compel defendants to deliver them 200 inches of water for the year 1914, and for each succeeding year thereafter, but did not have any crops planted at the time and manifested no intention of planting any until the question of their right to be furnished water by the defendant had been litigated and determined, for which purpose the proceedings were instituted. Held, that no necessity for the use of the water for the year 1914 having been shown, and it appearing that plaintiffs have an adequate remedy at law, the writ was properly denied.

[As to liability of water companies for failure to supply water, see note in 81 Am.St. 494]

APPEAL from the District Court of the Fourth Judicial District for Elmore County. Hon. Edward A. Walters, Judge.

Action for writ of mandate to compel the delivery of water for irrigation. Judgment of nonsuit. Affirmed.

Action of the trial court sustained. Costs awarded to respondent.

G. W Lamson, for Appellants.

Motion for nonsuit should be denied unless the evidence wholly fails to show a right of recovery. (Small v. Harrington, 10 Idaho 499, 79 P. 461; Idaho Comstock Min. & M. Co. v Lundstrum, 9 Idaho 257, 74 P. 975; York v. Pacific & N. R. Co., 8 Idaho 574, 69 P. 1042; Colvin v. Lyons, 15 Idaho 180, 96 P. 572; Mineau v. Imperial Dredge & Exploration Co., 19 Idaho 458, 114 P. 23.)

The burden is upon the plaintiffs to show that there was unappropriated water in the canal, and while they have made such proof, in this particular case, such burden shifted to the defendant, and whereas the plaintiffs have shown a delivery of water, the burden is upon the defendant to show why it has cut off the water and refused to furnish any more. (Gerber v. Nampa & Meridian Irr. Dist., 19 Idaho 765, 768, 116 P. 104.)

The offer to pay or secure the charge, or to comply with all reasonable rules and regulations, was not necessary, since all such procedure would have been useless, the defendant having filed a verified answer in another case, in which it stated it never intended to furnish plaintiffs any water. Defendant's answer in this case contains the same statement. (Gerber v. Nampa & Meridian Irr. Dist., supra; 26 Cyc. 342; People v. Musical Mutual Protective Union, 118 N.Y. 101, 23 N.E. 129.)

If plaintiffs had refused payment, the canal company would have its remedy in a civil suit, and there was no excuse for failure to deliver water. (Shelby v. Farmers' etc. Ditch Co., 10 Idaho 723, 80 P. 222.)

Defendant contends in its answer that because it became the owner of a canal system by receivership sale, it is not bound by any contract, express or implied, made prior to such sale. Our contention is that plaintiffs acquired vested rights which cannot be disturbed by any subsequent transfer. (Sec. 3292, Rev. Codes; Hewitt v. Great Western Beet Sugar Co., 20 Idaho 235, 118 P. 296; Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 P. 81; Beck v. Pasadena Lake Vineyard L. & W. Co., 6 Cal. Unrep. 363, 59 P. 387.)

The evidence shows water was furnished in contemplation of the provisions of art. 15, sec. 4, Idaho constitution, and the presumption, therefore, is that water over and above the amount previously appropriated to other users was in the canal. (Niday v. Barker, 16 Idaho 73, 101 P. 254.)

In case of corporations, and ministerial officers, there is an exception to the general rule, and they may be compelled to exercise their functions according to law, by mandamus, even though the party has another remedy against them by action for neglect of duty. This has been a uniform practice in water cases in Idaho. (26 Cyc. 172; Babcock v. Goodrich, 47 Cal. 488; Fremont v. Crippen, 10 Cal. 211, 70 Am. Dec. 711; People v. Loucks, 28 Cal. 68, 69.)

W. C. Howie and Sullivan & Sullivan, for Respondent.

"The writ of mandamus is never employed for the purpose of trying title to property, whether the property be a right to land, to an office, or to a franchise." (13 Ency. of Pl. & Pr. 493; Gregory v. Blanchard, 98 Cal. 311, 33 P. 199; 26 Cyc. 157; Babcock v. Goodrich, 47 Cal. 488.)

Mandamus is limited to enforcement of rights and duties imposed by law, and does not reach rights or duties resting wholly upon contracts. (19 Cyc. of L. 742; Dane v. Derby, 54 Me. 95, 89 Am. Dec. 722, 732; State v. Republican River Bridge Co., 20 Kan. 404; People v. Dulaney, 96 Ill. 503; Tobey v. Hakes, 54 Conn. 274, 1 Am. St. 114, 7 A. 551; Merrill on Mandamus, sec. 16; High on Ex. Leg. Rem., 3d ed., sec. 25; 2 Spelling, Inj. & Extr. Rem., sec. 1379; 3 Kinney on Irr. & W. R., 3024; 26 Cyc. 356; State v. Washington Irr. Co., 41 Wash. 283, 111 Am. St. 1019, 83 P. 308, 309; Miller v. Imperial Water Co., 156 Cal. 27, 103 P. 227, 24 L. R. A., N. S., 372; Farmers' High Line Canal & Reservoir Co. v. People, 8 Colo. App. 246, 45 P. 543.)

It is very apparent from the amended complaint and the proof herein that plaintiffs in this proceeding are endeavoring to secure a perpetual water right. A mandate is for the purpose of giving temporary relief only, for each particular season, and is not proper to try title to a perpetual right. ( Wheeler v. Northern Colorado Irr. Co., 10 Colo. 582, 3 Am. St. 603, 17 P. 487; Combs v. Agricultural Ditch Co., 17 Colo. 146, 31 Am. St. 275, 28 P. 966; Townsend v. Fulton Irr. Ditch Co., 17 Colo. 142, 29 P. 453; 3 Kinney on Irrigation, p. 3028.) Sec. 3290, Rev. Codes, provides for notice.

Plaintiffs instituted their mandate proceeding herein in January, 1914, without giving any notice whatever that they would desire water for the year 1914, and without making any proper demand or tendering the water charges or reasonable security therefor. (Bardsly v. Boise Irr. etc. Co., 8 Idaho 155, 159, 67 P. 428; Helphery v. Perrault, 12 Idaho 451, 86 P. 417.)

Plaintiffs failed to allege or prove that any demand had been made upon the company for water for the year 1914. One of the first principles in pleading facts for a writ of mandate is that the plaintiff has made demand that the act required be performed by defendant. (Dobbs v. Stauffer, 24 Kan. 127; Alexander v. McDowell County Commrs., 67 N.C. 330; State v. Associated Press, 159 Mo. 410, 81 Am. St. 368, 60 S.W. 91, 51 L. R. A. 151; People v. Board of Supervisors, 22 Misc. 616, 50 N.Y.S. 16; People v. Reis, 76 Cal. 269, 280, 18 P. 309; United States v. Butterworth, 169 U.S. 600, 602, 18 S.Ct. 441, 42 L.Ed. 873, 874; 3 Kinney on Irr. & Water Rights, sec. 1649; Price v. Riverside Land & I. Co., 56 Cal. 431, 434.)

" . . . . The petition should show . . . . that a payment of the water rates has either been made, or that there has been a legal tender thereof, and an allegation of willingness to pay when due." (3 Kinney on Irrigation, 3026.)

"In case a private right is sought to be enforced, it must appear from the petition or alternative writ that petitioner has been injuriously affected by respondent's default or breach of duty, or that he will be injuriously affected if the duty is not performed." (26 Cyc. 433; 13 Am. & Eng. Ency. Pl. & Pr. 679; Haskins v. Board of Supervisors, 51 Miss. 406; People v. Palmer, 27 Misc. 569, 59 N.Y.S. 62, 63.)

Mandamus cannot be employed for the enforcement of equitable rights. (19 Ency. of Law, 718; 13 Ency. Pl. & Pr. 491; 26 Cyc. 141.)

"The double remedy of injunction and mandamus is not appropriate in the same case." (19 Ency. of L. 721; 13 Ency. Pl. & Pr. 504, 505; Whigham v. Davis, 92 Ga. 574, 18 S.E. 548; 2 Spelling on Ex. Rem., sec. 1656.)

COWEN, District Judge. Budge and Morgan, JJ., concur.

OPINION

COWEN, District Judge.

This action was brought by the plaintiffs to compel the defendant corporation, by writ of mandate, to deliver to the plaintiffs 200 inches of water for the irrigating season of 1914, and for each succeeding year thereafter. The amended complaint was filed in February, 1914, and alleged, among other things the representative capacity of the plaintiff Lewis and the corporate capacity of the defendant. It then alleged that the defendant and its predecessors in interest were engaged in the business of furnishing and delivering water for irrigation purposes to users under its system, among whom are the plaintiffs; that the plaintiffs are the owners of and entitled to use therefrom 100 inches of water each, to be delivered to them within one-half mile of their lands described as the west half of sec. 21, township 4 south, range 5 east, Boise Meridian. They allege further that the Great...