Nampa & Meridian Irrigation Dist. v. Petrie

Citation223 P. 531,37 Idaho 45
CourtUnited States State Supreme Court of Idaho
Decision Date03 March 1923
PartiesNAMPA & MERIDIAN IRRIGATION DISTRICT, Respondent, v. J. G. PETRIE et al., Appellants

IRRIGATION-UNDERGROUND SEEPAGE WATERS-LOWERING OF WATER-TABLE BY DRAINAGE-LIABILITY ON ACCOUNT OF-CONSTRUCTION OF DRAINAGE SYSTEM BY IRRIGATION DISTRICT-ASSESSMENT FOR BENEFITS-ASSESSMENT BASED ON FLAT RATE-VALIDITY OF.

1. One who has been using underground seepage waters for irrigation has no right to insist as against a drainage district that the water-table be maintained at the existing level.

2. If the water-table of underground seepage waters is lowered by the operation of a drainage system constructed by a drainage district, one who has been using that water for irrigation cannot recover damages from the drainage district because of the lowering of the water-table.

3. Where a land owner within an irrigation district has an old water right, and the district provides an additional right for him by virtue of a contract with the United States government, he cannot be compelled to use the old water right on part of his land and the additional right on another part but he may use the combined water right on any or all of his land within the district.

4. Where an irrigation district, organized under the irrigation district law has constructed a drainage system in connection with its irrigation system, the assessments for both irrigation and drainage must be based upon actual benefits as provided by the irrigation district law.

5. An assessment for drainage, based on a flat rate, and not upon actual benefits accruing to the land, is invalid.

6. An assessment based on a flat rate per acre can be made only for maintenance and operating expense, and not for the construction of either the irrigation or the drainage system.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Proceeding to confirm assessments made by an irrigation district for the construction of irrigation and drainage works. Judgment modified.

Judgment modified in part and reversed in part. No costs awarded on this appeal.

Richards & Haga, for Appellant O. O. Haga.

Where property cannot be benefited by a drainage system constructed under a statute which provides that the assessment shall be in proportion to the benefits, as does the irrigation district law under which respondent operates, the property cannot be specifically assessed for such drainage system until it is benefited thereby. (Page & Jones, Taxation by Assessment, secs. 417 and 418, and cases cited; Waukegan v. Burnett, 234 Ill. 460, 84 N.E. 1061; Kansas City v St. Louis, S. F. R. R. Co., 230 Mo. 369, 130 S.W. 273, 28 L. R. A., N. S., 669.)

An assessment levied by an arbitrary standard which requires the burden to be levied upon lands, far from drains and only slightly benefited, equally with those fronting upon it and greatly benefited, is not just and equal or in proportion to benefits, and is unconstitutional. (Thomas v. Gaines, 35 Mich. 155, 24 Am. Rep. 535.)

A special assessment is prima facie invalid which casts upon abutting property the cost of an improvement without reference to the benefits received. (Willoughby on the Constitution, 939; Norwood v. Baker, 172 U.S. 269, 19 S.Ct. 187, 43 L.Ed. 443; Union Refrig. Transit Co. v. Kentucky, 199 U.S. 194, 4 Ann. Cas. 493, 26 S.Ct. 36, 50 L.Ed. 150.)

Eldridge & Morgan, for certain Appellants.

High dry lands cannot be assessed for drainage in an irrigation district, unless special benefits can be shown as having accrued to said lands. (Burt v. Farmers' Co-operative Irr. Co., 30 Idaho 752, 168 P. 1078; City of Waukegan v. Burnett, 234 Ill. 460, 84 N.E. 1061; In re Park Ave. Sewers, 169 Pa. 433, 32 A. 574; State v. City of Elizabeth, 40 N.J.L. 274; Kansas City v. St. Louis etc. R. Co., 230 Mo. 369, 130 S.W. 273, 28 L. R. A., N. S., 669; Myles Salt Co. v. Board of Commrs., 239 U.S. 478, 36 S.Ct. 204, 60 L.Ed. 392, L. R. A. 1918E, 190.)

The irrigation district law of this state is founded squarely upon the theory of special benefits, without which there can be no assessments levied against land. (Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 P. 81.)

H. E. McElroy and B. E. Stoutemyer, for Respondent.

An irrigation district may construct drainage works as a necessary complement of its irrigation system. (Burt v. Farmers' Co-op. Irr. Co., 30 Idaho 752, 168 P. 1078; Bissett v. Pioneer Irr. Dist., 21 Idaho 98, 120 P. 461; Pioneer Irr. Dist. v. Stone, 23 Idaho 344, 130 P. 382; Nampa & Meridian Irr. Dist. v. Petrie, 28 Idaho 227, 153 P. 425; United States v. Ide, 277 F. 383.)

The determination of the assessing board as to what property is benefited, and the extent of such benefit when made in accordance with statutory requirements, is conclusive in the absence of fraud or mistake. (Erickson v. Cass County, 11 N.D. 494, 92 N.W. 841; Rogers v. City of St. Paul, 22 Minn. 494; Carpenter v. City of St. Paul, 23 Minn. 232; Cunningham v. Board, 27 Minn. 442, 8 N.W. 161; Wright v. Chicago, 48 Ill. 287; Elliott v. Chicago, 48 Ill. 293; Lawrence v. Chicago, 48 Ill. 292; Shattuck v. Smith, 6 N.D. 56, 69 N.W. 5; Colburn v. Wilson, 24 Idaho 94, 132 P. 579.)

In apportioning the cost of irrigation to the various tracts of land in any irrigation project, the entire irrigation system which includes the drainage system as a part or complement thereof must be considered as a unit and apportioned to all the lands irrigated therefrom at an equal rate per acre. (Niday v. Barker, 16 Idaho 73, 101 P. 254.)

"Should the district court find that by reason of the application of water under the contract, the value of the land is increased and the owner is thereby benefited, no wrong can result to him by reason of the assessment of such benefits." (Nampa & Meridian Irr. Dist. v. Petrie, supra.)

Where it is necessary to determine the extent of the benefit of any special improvement, such as sewers, sidewalks, paving or irrigation, to any particular tract of land, it is not the extent of the use which the owner of such property is likely to make of such improvement that controls the amount of the tax. (Oregon Short Line v. Pioneer Irr. Dist., 16 Idaho 578, 102 P. 904; Union Traction Co. v. City of Chicago, 204 Ill. 363, 68 N.E. 519; Page & Jones, Taxation by Assessment, par. 653, and cases cited.)

Under the law of this state a water appropriator can acquire a right to a certain amount of water out of a natural stream, but he cannot acquire any vested right to insist that the water surface of a stream remain at the elevation where he found it at the time of his appropriation, so that he may continue a cheap or convenient method of diversion. (Schodde v. Twin Falls, 161 F. 43, 88 C. C. A. 207; 224 U.S. 107, 32 S.Ct. 470, 56 L.Ed. 686; Weymouth v. Lincoln Land Co., 277 F. 384; United States v. Ide, 277 F. 373.)

Rice & Bicknell, Amici Curiae.

The legislature not having defined the term "benefits" and not having laid down any rules to be followed by the board of directors in apportioning the same has vested in the board of directors a broad discretion as to the advantages and needs which may be considered benefits and as to the method of apportionment. (2 Page & Jones, Taxation by Assessment, sec. 670; Power v. City of Detroit, 139 Mich. 30, 5 Ann. Cas. 645, 102 N.W. 288; Fallbrook Irr. Dist. v. Bradley, 164 U.S. 112, 17 S.Ct. 56, 41 L.Ed. 369; Re Madera Irr. Dist. Bonds, 92 Cal. 296, 27 Am. St. 106, 28 P. 272, 14 L. R. A. 755.)

When the statute does not prescribe any mode of apportionment, the board of directors may adopt any mode that is fair and not unjust. (Gilmore v. Hentig, 33 Kan. 156, 5 P. 781; Chicago, R. I. P. R. Y. Co. v. Green, 4 Kan. App. 133, 46 P. 200; Bassett v. City of New Haven, 76 Conn. 70, 55 A. 579; Houck v. Little River Drainage Dist., 239 U.S. 254, 36 S.Ct. 58, 60 L.Ed. 266; Wagner v. Leser, 239 U.S. 207, 36 S.Ct. 222, 60 L.Ed. 230; Sears v. Board of Aldermen, 173 Mass. 71, 53 N.E. 138, 43 L. R. A. 834.)

Benefits may be indirect as well as direct. (Oregon S. L. R. Co. v. Pioneer Irr. Dist., 16 Idaho 578, 102 P. 904; Colburn v. Wilson, 24 Idaho 94, 132 P. 579.)

The needs, necessities and advantages which the board of directors may consider in apportioning benefits are suggested by the consideration upon which the implied power to construct drainage works by an irrigation district rests. These are: (a) That by such drainage works an additional water supply may be obtained for the irrigation of lands within the district. (b) That the minimum of resultant damage or injury may be caused by use of water for irrigation in order to prevent retarded development and permanent detriment to the state. (c) That the district may do whatever is necessary in the way of self-preservation. (d) That drainage works constitute the final construction of a complete irrigation system. (Bissett v. Pioneer Irr. Dist., 21 Idaho 98, 120 P. 461; Pioneer Irr. Dist. v. Stone, 23 Idaho 344, 130 P. 382; Nampa & Meridian Irr. Dist. v. Petrie, 28 Idaho 227, 153 P. 425; Burt v. Farmers' Co-op. Irr. Co., 30 Idaho 752, 168 P. 1078; United States v. Ide, 277 F. 373.)

MCCARTHY, J. Budge, C. J., Wm. E. Lee, JJ., and William A. Lee, concur.

OPINION

MCCARTHY, J.

Respondent is an irrigation district. Appellants are owners of certain lands of the district. The district entered into a contract with the United States government for three main purposes (1) to build a drainage system for the district, (2) to furnish full water rights for about 40,000 acres of dry land in the district and (3) to furnish a supplemental supply of stored water from the Arrowrock reservoir to be used upon some lands within the district. The validity of this contract and all...

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