Nampa & Meridian Irr. Dist. v. Briggs

• Decision Date: 16 March 1915
• Citation: 27 Idaho 84,147 P. 75
• Court: Idaho Supreme Court
• Parties: NAMPA & MERIDIAN IRRIGATION DISTRICT, Appellant, v. W. M. BRIGGS, Respondent

147 P. 75

27 Idaho 84

NAMPA & MERIDIAN IRRIGATION DISTRICT, Appellant, v. W. M. BRIGGS, Respondent

Supreme Court of Idaho

March 16, 1915

IRRIGATION AND WATER RIGHTS-OWNERSHIP-ANNUAL MAINTENANCE-CONSIDERATION EXPRESSED IN DEED-TITLE-PURCHASE-CONSTITUTIONAL LAW-IRRIGATION DISTRICT-PUBLIC SERVICE CORPORATION-COMMON CARRIER-MUTUAL CO-OPERATIVE COMPANY-PREFERENTIAL RIGHT-POWER OF EMINENT DOMAIN-RECITAL IN DEEDS-USE OF WATER FOR IRRIGATION-POSSESSION-NOTICE-TENDER-DEPOSIT IN COURT-JUDGMENT.

1. The facts in this case considered and held to not support the contention that appellant and respondent are co-owners of the irrigation system; that appellant's ownership of said system is established by the evidence, and that respondent is the owner of a right to two cubic feet of water per second of time to be delivered through the ditches and canals thereof.

2. The deeds executed by the predecessors of appellant and respondent examined, and it is found that the agreement to pay the sum of $12 per annum on the water right described in each of said deeds as an assessment for the management and maintenance of said irrigation system is a part of the consideration upon which said deeds are based.

3. Appellant became the owner of the irrigation system in question after contracts had been entered into whereby respondent's predecessor and his successors in interest were to enjoy the use of two cubic feet of water per second of time and were to pay $24 per year toward the upkeep of the irrigation system. It was optional with the appellant to make the purchase or not. Having elected to purchase, it could acquire no greater interest than its vendor had and must take its title burdened with said contracts. Having purchased the system it might have acquired respondent's property right by purchase or condemnation and might have brought him into the district upon equal terms with its members, but it did not do so, and his interest granted by these contracts is property that may not be confiscated, or taken, without payment of just compensation.

4. The water right contracts entered into between the predecessors in interest of the appellant and respondent were so entered into before the adoption of the constitution of Idaho. There was noth- ing in the law of the territory of Idaho prohibiting such contracts, and sec. 10, art. 1 of the federal constitution prohibits states from passing laws impairing the obligation of contracts.

5. The appellant, an irrigation district created under the laws of the state of Idaho, is not a public service corporation in the sense that it is a common carrier, to any other or greater extent than the term implies when applied to its own membership, and when confined to the business of carrying water for the irrigation of lands within its own district. It is a mutual, co-operative corporation, organized not for profit, engaged in distributing water to its members for use upon lands within its district.

6. The fact that such a corporation as appellant is may exercise the power of eminent domain does not, of necessity, constitute it a public service corporation in the sense that the public may exact any service from it.

7. It appears from the evidence and the stipulation of the parties that in deeds by which title to the irrigation system was granted to certain of appellant's predecessors in interest and through whom it deraigned title, there were reserved certain water rights, and that among said rights so reserved were those now claimed by respondent; also that at the time appellant purchased, and for a long time prior thereto, respondent was in possession of his land and was using water thereon from the canal pursuant to the stipulation in his deeds. Held, that these are facts knowledge of which ought to put a prudent man on inquiry which would have readily disclosed the true condition of respondent's claim, whether his deeds were so acknowledged as to entitle them to go of record or not.

8. The respondent, before the commencement of the action, tendered to the appellant and deposited in court $120, in which sum he is indebted to appellant; the appellant is entitled to judgment against the respondent in said amount, and the respondent is entitled to judgment against the appellant under sec. 4909, Rev. Codes, for the amount of his costs incurred in the district court.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.

Action to recover from defendant his pro rata share for the management, maintenance and repairs of appellant's canal system. Judgment for defendant. Modified.

Cause remanded with instruction. Costs upon appeal awarded to the respondent.

H. E McElroy, for Appellant.

Deeds of this character, to a part only of the water carried by the canal, clearly bring the grantee and the owners of the remainder of the water carried by the canal into the relation of tenants in common in water rights. (Frost v. Alturas Water Co., 11 Idaho 294, 81 P. 996.)

Respondent relies upon Jackson v. Indian Creek Reservoir etc Co., 16 Idaho 430, 101 P. 814, and Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 P. 81. In those cases the court was only declaring the law in relation to contracts which attempted to fix charges for the use of water. The owners of water rights under such deeds as these in controversy are tenants in common with this appellant in this canal system, and we are no more under obligation to maintain this canal system for their benefit than that they should maintain it for us. It is merely a question of prorating the expense. This court has passed upon cases of this character in which the titles of grantees of undivided interest in water rights were respected and recognized in the following cases: Nampa & Meridian Irr. Dist. v. Gess, 17 Idaho 552, 106 P. 993; Idaho Fruit Land Co. v. Great Western Beet Sugar Co., 18 Idaho 1, 107 P. 989.

The annual maintenance is a duty which rests upon the owner of a water right as an incident of such ownership; it is not part of the title, neither can it be the subject of a covenant running with the title to the property; agreements in relation thereto only bind the parties to such agreements, and cannot affect the title to other and different rights from the same canal system.

The Central Canal & Land Co. could and possibly did impose that obligation on itself; but could not make such an obligation forever follow the title to water rights owned by the public and in regard to which the canal owner is "but an agent of the public for the distribution of such waters to such members of the public as may apply for them and pay him the legal charge for the service rendered by him." ( Leavitt v. Lassen Irr. Co., 157 Cal. 82, 106 P. 404, 29 L. R. A., N. S., 213.)

This same question of preferential rights was passed upon by the circuit court of appeals in Boise City Irr. & Land Co. v. Clark et al., 131 F. 415, 65 C. C. A. 399, where the court held directly that the Boise City Irr. & Land Co., our predecessor in interest, could not lawfully fix a rate required to be charged to the users of water to pay for the maintenance properly chargeable to this land. If our predecessors in interest could not lawfully charge up their maintenance for the Gess tract to the other lands to which they supplied water, as the court held in that case, much less can this district do so, limited as it is by the law regulating irrigation districts. The Boise City Irrigation & Land Co. was a private corporation; this district is a public one. In Daly v. Josslyn, 7 Idaho 657, 65 P. 442, the court held that specific performance of a contract in relation to water rights could not be decreed. In other words, the contract was a personal one, and no person could be held unless he became a party thereto.

The law is well settled that the owners of water rights carried through the same ditch are legally liable to contribute pro rata to the maintenance thereof. (Long on Water Rights, sec. 75. Nampa & Meridian Irr. Dist. v. Gess, 17 Idaho 552, 106 P. 993; Shelby v. Farmers' etc. Ditch Co., 10 Idaho 723, 80 P. 222.)

"Water appropriated for distribution and sale is, ipso facto, devoted to a public use, which is inconsistent with the right of the person so appropriating it to exercise the same control over it that he might have exercised if he had never so appropriated." (McCrary v. Beaudry, 67 Cal. 120, 7 P. 264.)

The charge for the use of the water when fixed under sec. 6, art. 15, of the constitution, is subject to modification from time to time. (Green v. Jones, 22 Idaho 560, 126 P. 1051.)

The amount which the canal owner may lawfully charge for such use was as definitely fixed by statute prior to the constitution as by the constitution itself. Sec. 6, art. 15, merely authorizes the legislature to provide a method of determining the charge; and, as stated in sec. 2, art. 15, the franchise can only be exercised "by authority of and in the manner prescribed by law."

Wood & Driscoll and Martin & Martin, for Respondent.

This case is controlled absolutely by the decisions of this court in Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 P. 81; Jackson v. Indian Creek Reservoir etc., 16 Idaho 430, 101 P. 814, and Nampa & Meridian Irr. Dist. v. Gess, 17 Idaho 552, 106 P. 994.

In Knowles v. New Sweden Irr. Dist. the deed and agreement under which the plaintiff claimed is set forth in part in the opinion of the court, and in the important features is nearly identical with the deeds and agreements in controversy.

The deed construed in Jackson v. Indian Creek Reservoir, etc., appears to be practically a duplicate of the deeds in controversy.

Since the decision and application for rehearing in this case, this court has decided the case ...