Lundy v. Pioneer Irrigation District, 5867

• Decision Date: 13 February 1933
• Docket Number: 5867
• Citation: 19 P.2d 624,52 Idaho 683
• Parties: Z. E. LUNDY, LEAH A. SMITH, H. M. RUDDOCK, SYLVESTER MENDENHALL, THOMAS W. COLE, LEE R. CLEMMONS, C. T. KIRKPATRICK, ELMER E. RUDDOCK and WM. RIENIMER, Appellants, v. PIONEER IRRIGATION DISTRICT, a Municipal Corporation, Respondent
• Court: Idaho Supreme Court

19 P.2d 624

52 Idaho 683

Z. E. LUNDY, LEAH A. SMITH, H. M. RUDDOCK, SYLVESTER MENDENHALL, THOMAS W. COLE, LEE R. CLEMMONS, C. T. KIRKPATRICK, ELMER E. RUDDOCK and WM. RIENIMER, Appellants, v. PIONEER IRRIGATION DISTRICT, a Municipal Corporation, Respondent

No. 5867

Supreme Court of Idaho

February 13, 1933

WATER AND WATERCOURSES-IRRIGATION DISTRICTS - ASSESSMENTS - APPORTIONMENT OF BENEFITS-RES JUDICATA.

1. Confirmation of apportionment of benefits made when irrigation district was created became res judicata as to assessment of benefits (I. C. A., sec. 42-404).

2. Property owner, having obtained desired relief respecting certain assessments through board of directors of irrigation district, could not complain respecting them in appeal from judgment denying injunction.

3. Irrigation district assessments for maintenance and operation could be based on lot basis, where based on actual benefits although original apportionment of benefits was on acreage basis (C. S., sec. 4384).

4. Property owners not presenting objections to assessments for maintenance and operation of irrigation district to board of correction could not obtain equitable relief (I. C. A., sec 42-703).

5. Without a showing that board was levying assessments for maintenance and operation of irrigation district on basis other than benefits received, board's refusal to change method of assessment could not justify equitable interference (C. S., sec. 4384).

6. Action of board of correction in reviewing assessments for maintenance and operation of irrigation district is conclusive absent proof of fraud or intentional, systematic discrimination (I. C. A., sec. 42-703).

7. Property owners, not appearing before board of directors of irrigation district or requesting review of assessments for maintenance and operation, waived objections (I. C. A., sec 42-703).

8. Property owners not protesting when paying irrigation district assessments could not recover excess payments.

9. Property owners' protest to tax collector against all irrigation district assessments held too general to warrant recovery of excess payments.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. A. O. Sutton, Judge.

Action to enjoin collection of irrigation district assessments and to recover a portion of certain assessments paid. Judgment for defendant. Affirmed.

Judgment affirmed. Costs to respondent.

T. A. Walters and Walter Griffiths, for Appellants.

Assessments or levies of taxes for maintenance and operation purposes must be spread upon all of the lands in the district in proportion to the benefits received by such lands growing out of the maintenance and operation of the works or irrigation system of the district, and cannot be levied or spread upon the lands in proportion to the costs of supplying water to the particular lands in question. The sole benefit accruing from the maintenance and operation of the system is the supplying of the water to the land as needed, and the whole benefit is the total water supplied. The water supplied and the supplying of the same is the benefit and the cost is only the incident and is not a basis for apportionment of benefits. Taxes levied for maintenance and operation must be apportioned according to benefits and not as to costs of maintaining and operating different parts of the system. (C. S. 1919, sec. 4384; Colburn v. Wilson, 24 Idaho 94, 132 P. 579; City of Nampa v. Nampa & Meridian Irr. Dist., 23 Idaho 422, 131 P. 8; American Falls Reservoir Dist. v. Thrall, 39 Idaho 105, 228 P. 236; Brown v. Shupe, 40 Idaho 252, 233 P. 59.)

Frank T. Wyman, for Respondent.

Maintenance and operation charges are not required to be levied upon the basis of the apportionment of benefits for bond issues. (Colburn v. Wilson, 24 Idaho 94, 132 P. 579; Brown v. Shupe, 40 Idaho 252, 233 P. 59; R. C., sec. 2399; C. S., secs. 4362, 4380, 4384.)

Action of the board of correction is final in the absence of proof that the officers of the district acted fraudulently, dishonestly, capriciously, arbitrarily or in bad faith. (Brown v. Shupe, supra; Miller & Lux v. Richardson, 182 Cal. 115, 187 P. 411; First Nat. Bank v. Moon, 102 Kan. 334, 170 P. 33, L. R. A. 1918C, 986; Northwest T. & S.D. Co. v. Thurston County, 99 Wash. 564, 170 P. 125; Danforth v. Livingston, 23 Mont. 558, 59 P. 916.)

BUDGE, C. J. Givens and Holden, JJ., and Babcock, D. J., concur, Morgan, J., concurs in the conclusion.

OPINION

BUDGE, C. J.

This action was brought by appellants seeking to restrain the collection of certain assessments levied by respondent district, to enjoin future levies on the same basis, and to recover certain alleged excess payments theretofore made by appellants.

From the record it appears that a tract of land comprising five acres within the boundaries of the city of Caldwell and respondent district was subdivided into nine parcels which, since prior to 1924, had been, and at the time of the commencement of the action were, owned in severalty by appellants. Prior to 1924 assessments for all purposes had been levied by respondent district upon the basis of the original apportionment of benefits as fixed and determined upon the creation of the district. In December, 1923, a contract was entered into between respondent and the city of Caldwell by which the latter undertook the delivery of water within its boundaries through a portion of respondent's irrigation system. In the years 1924 to 1928, inclusive, assessments were levied by respondent district for all purposes upon the individual tracts of appellants upon a lot basis, instead of upon an acreage basis as theretofore. After the 1928 assessments were made appellants filed a written protest with the board of directors of respondent district sitting as a board of correction, protesting against the method of assessment, demanding that it return to the original method of assessment, and that it repay to appellants the excess they had been compelled to pay by reason of the change in the years 1924 to 1927, inclusive. After considering the protest the board re-adopted the original method of assessment with respect to assessments for all purposes other than maintenance and operation, and modified the 1928 assessment for those purposes accordingly, but refused to change the basis of assessment for maintenance and operation, and also refused to repay the alleged excess payments made in 1924 to 1927, inclusive. Appellants thereupon commenced this action.

In their first cause of action of the amended complaint appellants allege the method and basis of assessment prior to 1924 with respect to their lands, and that in 1924, over their protests and objections, the same was changed as above described; that such changed basis and method of assessment was followed each year by respondent district, over appellants' protests and objections, and resulted in appellants being compelled to pay excessive charges; that respondent will continue such practice unless restrained; and that they have no plain, speedy or adequate remedy at law. In each of the five following causes of action, after adopting the allegations of the first cause of action, appellants set forth the excess amounts they allege they were compelled to pay by reason of the change in the basis of assessments for the years 1924 to 1928, inclusive, respectively, and pray that respondent be enjoined from making such excessive assessments and levies in the future and from collecting the excess amount levied in 1928, and that it be required to repay to appellants the excess sums collected for the years 1924 to 1928, inclusive. It might be noted here that while the sixth cause of action alleges the payment of the assessment levied for 1928. and that the prayer asks that the collection of the excess assessment for 1928 be enjoined and that they recover the excess paid in 1928, the trial court found that there was no evidence that appellants paid any part of the 1928 assessment, which finding is borne out by the record.

By its amended answer respondent, in effect, denied all of the material allegations of the amended complaint and affirmatively alleged as to each cause of action that the same was barred by the provisions of sec. 2, chap. 107, 1921 Sess. Laws, and by that section as amended by chap. 26, 1931 Sess. Laws.

The cause was tried upon these issues by the court sitting without a jury. Findings of fact and conclusions of law were made and filed and judgment was entered in favor of respondent, from which judgment this appeal is taken.

Appellants specify fourteen assignments of error, the great majority of which fail to meet the requirements of Rule 40 of this court for the reason that they are too general. We have frequently protested against such assignments of error. (See McMillan v. Sproat, 51 Idaho 236, 239, 4 P.2d 899; Burton v. Bayly, 50 Idaho 707, 709, 300 P. 359; Hammond v. McMurray Brothers, 49 Idaho 207, 286 P. 603, and cases therein cited.) There is practically no reference to the assignments in appellants' brief but from the body thereof and points and authorities it would seem that the matters hereinafter reviewed are presented for consideration.

At the time of the creation of respondent district the board determined and fixed the benefits which would accrue to each tract or subdivision of land within the district by reason of the construction of its irrigation works and apportioned the cost against each tract or subdivision in proportion to the benefit it would derive therefrom. Such apportionment of benefits was confirmed by the district court and the amount so apportioned and distributed to each of the tracts or subdivisions within the district became and remained thereafter the basis for fixing the annual...